EXHIBIT 10.26
-------------
GUARANTY FOR PURPOSE CREDIT
(Xxxxxxx X. Xxxxx)
Denver, Colorado November 22, 2000
In consideration of the loan made to The Fries Family Partnership LLLP, a
Colorado limited liability limited partnership ("Borrower"), and acquired by
United International Properties, Inc. ("Lender"), as evidenced by that certain
demand Promissory Note (Purpose Credit) in the principal amount of $236,819 of
even date herewith (the "Note"), executed by Borrower and payable to Lender, and
in order to induce Lender to make and maintain such loan to Borrower, the
undersigned, Xxxxxxx X. Xxxxx ("Guarantor"), does hereby unconditionally and
irrevocably guarantee the punctual and complete payment and performance when due
to Lender of each and all of Borrower's obligations under the Note, together
with interest thereon and any and all expenses which may be incurred by Lender
in collecting all or any of Borrower's obligations under the Note and in
enforcing any rights hereunder, including, without limitation, reasonable
attorneys' fees and expenses.
Guarantor hereby (i) guarantees that the Note will be paid to Lender
strictly in accordance with the terms and provisions of the Note, and (ii)
agrees that, in the event Borrower fails to make any payment due Lender in
accordance with the terms of the Note, Guarantor shall, upon demand of Lender,
immediately pay such amount on behalf of Borrower.
"Stock Options" shall be defined to include all vested stock options and
phantom stock options granted to Guarantor as of this date and any granted in
the future with respect to UnitedGlobalCom, Inc. ("UGC"), United Pan-Europe
Communications N.V. ("UPC"), chello broadband N.V. and Austar United
Communications Limited ("Austar"). "Purpose Credit Stock Options" shall mean the
Stock Options described on Schedule I to this Guaranty, and any Stock Options
directly or indirectly securing any promissory note or guaranty heretofore or
hereafter executed by Borrower or Guarantor evidencing or guaranteeing
indebtedness to the Lender that constitutes purpose credit under Regulation U.
"Non-Purpose Credit Stock Options" shall mean all of the Stock Options other
than the Purpose Credit Stock Options. "Regulation U" shall mean Regulation U
promulgated by the Board of Governors of the Federal Reserve System, as amended
from time to time, and any successor or replacement law or regulation. "Business
Day" shall mean any day other than Saturday, Sunday and a day on which banks are
required or permitted to close in Denver, Colorado or London, England.
Until the Note has been paid in full, the Guarantor shall in no event (i)
exercise any of the Purpose Credit Stock Options, unless all of the proceeds of
such exercise are applied toward payment of due but unpaid interest or the
outstanding principal balance of the Note and any other note evidencing purpose
credit from Borrower or Guarantor payable to Lender, or (ii) take any steps to
transfer any of the Purpose Credit Stock Options. Guarantor hereby instructs
UGC, UPC, chello broadband N.V. and Austar not to permit the exercise of any
Purpose Credit Stock Options unless the proceeds are sent directly to Lender in
payment of amounts owing under the Note or any other note from Borrower or
Guarantor to Lender evidencing purpose credit under Regulation U. If the terms
of the applicable stock option plans are amended to permit Guarantor to pledge
any of the Purpose Credit Stock Options, Guarantor shall immediately pledge such
Purpose Credit Stock Options to Lender. No Stock Options other than the Purpose
Credit Stock Options shall constitute collateral or other direct or indirect
security for this Guaranty or the repayment of the Note.
The Guarantor further promises that, upon the release from collateral of
any margin stock pledged by the Guarantor in connection with any margin account,
Guarantor shall inform Lender of such release and if Lender so requests,
Guarantor shall promptly pledge such margin stock to the Lender, free and clear
of any other lien, as security for this Guaranty and the payment of the Note,
and shall in connection with such pledge surrender to the Lender one or more
certificates evidencing such margin stock and take such other action as may be
necessary or desirable to perfect the Lender's security interest therein.
Guarantor further promises that Guarantor will use best efforts to repay the
Note from the proceeds of the sale of any UGC or UPC stock other than stock
acquired through Stock Options since the date of the Note (the application of
proceeds from the sale of UGC or UPC stock acquired through the exercise of
Stock Options being covered by the preceding paragraph).
Upon failure of the Borrower to pay the unpaid principal amount of the Note
within thirty (30) days of the date when such amount becomes due and payable, or
failure of the Borrower to pay interest on the unpaid principal amount of the
Note within thirty (30) days of the date such interest is due and payable, in
addition to any other rights and remedies that Lender may have hereunder or
otherwise at law or in equity, Lender shall have the right to take any or all of
the following actions: (a) cause the Purpose Credit Stock Options to be
exercised to the extent necessary for payment in full of the Note, and (b) cause
any unexercised Purpose Credit Stock Options to immediately terminate and be of
no further force or effect. Notwithstanding such termination, Guarantor shall
remain liable for all amounts due and owing under the Note.
This Guaranty shall not be amended, and no collateral or other direct or
indirect security for this Guaranty shall be withdrawn, released or substituted,
except in compliance with Regulation U.
Guarantor hereby waives notice of acceptance of this Guaranty, and also
presentment, demand, protests and notice of dishonor of any and all of the
obligations under the Notes. No act or omission of any kind on Lender's part
shall affect or impair this Guaranty. This Guaranty shall be governed as to
validity, interpretation, construction, effect, and in all other respects, by
the laws and decisions of the State of Colorado, without regard to conflicts of
laws principles.
[REMAINING PORTION OF PAGE INTENTIONALLY LEFT BLANK]
2
Executed by Guarantor to be effective as of the date set forth above, but
executed this 16 day of May 2001.
/s/ Xxxxxxx X. Xxxxx
------------------------------
Xxxxxxx X. Xxxxx
3
SCHEDULE I
----------
(to Guaranty for Purpose Credit dated November 22, 2000)
--------------------------------------------------------
Purpose Advances
----------------
Date of Advance Amount of Advance
--------------- -----------------
November 22, 2000 $236,819
Purpose Stock Options
---------------------
Description of Stock Options Valuation Date Value on Valuation Date
---------------------------- -------------- -----------------------
UnitedGlobalCom, Inc. Stock 11/22/00 $210,000
Options for 15,000 shares of
Class A Common (vested),
granted 7/22/93 to Xxxxxxx Xxxxx
UnitedGlobalCom, Inc. Stock 11/22/00 $287,500
Options for 25,000 shares of
Class A Common (vested),
granted 7/22/93 to Xxxxxxx Xxxxx
UnitedGlobalCom, Inc. Stock 11/22/00 $376,875
Options for 45,000 shares of
Class A Common (vested),
granted June 16, 1995
4
