EXHIBIT 10.33
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PROMISSORY NOTE
(Purpose Credit)
US$97,488 Denver, Colorado
April 4, 2001
FOR VALUE RECEIVED, the undersigned, The Fries Family Partnership LLLP, a
Colorado limited liability limited partnership (the "Borrower"), hereby promises
to pay, on demand at any time, to the order of UNITED INTERNATIONAL PROPERTIES,
INC., a Colorado corporation (the "Company"), and together with any of its
successors or assigns (the "Holder"), at 0000 Xxxxx Xxxxxx Xxxxxx, Xxxxx 0000,
Xxxxxx, Xxxxxxxx 00000, or at such other place as Holder may designate in
writing from time to time, the principal sum of Ninety-seven Thousand Four
Hundred Eighty-eight Dollars (US$97,488) or, if less, the unpaid principal
balance of such amount and any interest as set forth in this Note. A payment of
the entire outstanding principal amount, plus all accrued but unpaid interest
thereon shall in all events be due and payable on November 22, 2002.
From the date of this Note and until paid in full, interest on the
outstanding principal amount of this Note shall accrue at a variable rate per
annum equal to (i) 2.5% plus the 90-Day LIBOR Rate (as defined below), if the
Coverage Ratio (as defined below) is 200% or greater, or (ii) 3.5% plus the
90-Day LIBOR Rate, if the Coverage Ratio is less than 200%. The Coverage Ratio
must at all times be no less than 100%. The 90-Day LIBOR Rate applicable to any
interest payment date shall be determined as of the date of this Note, for the
period April 4, 2001 though May 21, 2001, and thereafter shall be redetermined
every August 22, November 22, February 22 and May 22. If any interest
determination date is not a Business Day (as defined below), the 90-Day LIBOR
Rate shall be determined on the next Business Day. All interest shall be
calculated on the basis of a three hundred sixty (360) day year consisting of
twelve 30-day months and the actual number of days elapsed (including the first
day but excluding the last day) in the period for which interest is payable and
shall be payable in cash.
The "90-Day LIBOR Rate" shall mean, as of any date on which such 90-Day
LIBOR Rate is to be determined, the rate for 90-day deposits of United States
Dollars that appears as of 11:00 a.m., London time, on the display of the Dow
Xxxxx Telerate Service (or any successor service), for the purpose of indicating
the London interbank rates of major banks for United States Dollars. If more
than one such rate appears on such service, the 90-Day LIBOR Rate shall be the
arithmetic mean of such rates.
The "Coverage Ratio" shall mean, as of any date on which a 90-Day LIBOR
Rate is to be determined, 100% multiplied by a fraction, the numerator of which
is the aggregate spread between exercise prices and closing market prices (as
quoted on the principal stock exchange for a particular security) as of the date
for which the Coverage Ratio is determined for all of the Purpose Credit Stock
Options (as defined below) and the denominator of which is the unpaid principal
balance and interest due but unpaid, as of the close of business on any interest
payment date, under this Note and any other note evidencing purpose credit of
Xxxxxxxx or Xxxxxxx X. Xxxxx in favor of Xxxxxx.
"Stock Options" shall be defined to include all vested stock options and
phantom stock options granted to Xxxxxxx X. Xxxxx as of this date and any
granted in the future with respect to the UnitedGlobalCom, Inc. ("UGC"), United
Pan-Europe Communications N.V. ("UPC"), chello broadband N.V. and Austar United
Communications Limited ("Austar"), including those Stock Options that had been
transferred by Xxxxxxx X. Xxxxx to Borrower. "Purpose Credit Stock Options"
shall mean the Stock Options described on Schedule I to this Note and any Stock
Options directly or indirectly securing any promissory note or guaranty
heretofore or hereafter executed by Borrower or Xxxxxxx X. Xxxxx evidencing or
guaranteeing indebtedness to the Company 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 this Note has been paid in full, the Borrower 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 this Note or any other note evidencing purpose
credit from Borrower or Xxxxxxx X. Xxxxx payable to the Company, or (ii) take
any steps to transfer any of such Purpose Credit Stock Options. Borrower 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 the
Company in payment of amounts owing under this Note or any other note evidencing
purpose credit from Borrower or Xxxxxxx X. Xxxxx payable to the Company. If the
terms of the applicable stock option plans are amended to permit Borrower to
pledge any of the Purpose Credit Stock Options, Borrower shall immediately
pledge such Purpose Credit Stock Options to the Company. The Non-Purpose Credit
Stock Options shall not constitute collateral or other direct or indirect
security for the repayment of this Note.
The Borrower further promises that, upon the release from collateral of any
margin stock pledged by the Borrower in connection with any margin account,
Borrower shall inform Holder of such release and if Holder so requests, Borrower
shall promptly pledge such margin stock to the Holder, free and clear of any
other lien, as security for the payment of this Note, and shall in connection
with such pledge surrender to the Holder one or more certificates evidencing
such margin stock and take such other action as may be necessary or desirable to
perfect the Holder's security interest therein. Borrower further promises that
Xxxxxxxx will use best efforts to repay this Note from the proceeds of the sale
of any UGC or UPC stock other than stock acquired through Stock Options since
the date of this 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).
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The Borrower may use the proceeds of any loan evidenced by this Note for
the purpose of buying or carrying margin stock (as such terms are used in
Regulation U).
Upon failure of the Borrower to pay the unpaid principal amount of this
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 this Note within thirty (30) days of the date such interest is due and
payable in addition to any other rights and remedies that the Holder may have
hereunder or otherwise at law or in equity, Holder 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 hereof, and (b)
cause the unexercised Purpose Credit Stock Options to immediately terminate and
be of no further force or effect. Notwithstanding such termination, Borrower
shall remain liable for all amounts due and owing under this Note.
All payments under this Note shall be credited first toward interest then
due and the remainder toward principal. The Borrower may prepay interest on
and/or principal of this Note, in whole or in part, at any time without premium
or penalty. All payments of the unpaid principal balance and interest will be
made without withholding or deduction for or on account of any present or future
taxes, duties, assessments or governmental charges of whatever nature, unless
the withholding of such taxes or duties is required by law.
If an attorney is engaged by the Holder to enforce or construe any
provision of this Note and the Holder prevails in any related court proceeding,
the Borrower shall pay, on demand, all attorneys' fees and all other costs
incurred by the Holder, together with interest on such amount from the date of
such demand until paid, at the rate of interest then payable under this Note
plus an additional three (3) percent.
Except as expressly provided in this Note, the Borrower and all endorsers
waive presentment, demand, and notice of dishonor.
No delay or failure of the Holder in the exercise of any right or remedy
under this Note shall be deemed a waiver of such right, and no exercise or
partial exercise of any right or remedy shall be deemed a waiver of any other
right or remedy that the Holder may have.
This Note (including, without limitation, Schedule I hereto) shall not be
amended, and no collateral or other direct or indirect security for repayment of
this Note shall be withdrawn, released or substituted, except in compliance with
Regulation U.
This Note shall be governed by and construed in accordance with the laws of
the State of Colorado. The Borrower hereby submits to the jurisdiction of the
United States District Court for the District of Colorado and of any court of
the State of Colorado sitting in Denver, Colorado, for purposes of all legal
proceedings arising out of or related to this Note. The Borrower irrevocably
waives, to the fullest extent permitted by law, any objection that the Borrower
may now or later have to the lack of personal jurisdiction or laying of the
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venue of any such proceeding brought in such a court and any claim that any such
proceeding brought in a court has been brought in an inconvenient forum.
Notwithstanding the preceding two sentences, the Holder retains the right to
bring any suit, action or proceeding seeking to enforce any provision of, or
based on any matter arising out of or in connection with this Note in any court
that has jurisdiction over the Borrower and subject matter.
IN WITNESS WHEREOF, the Borrower has duly executed this Note to be
effective as of April 4, 2001.
THE FRIES FAMILY PARTNERSHIP LLLP
By: The Xxxxx X. Xxxxx Trust
General Partner
By: /s/ Xxxxxxx X. Xxxxxxxx, Xx.
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Xxxxxxx X. Xxxxxxxx, Xx., Trustee
By: /s/ Xxxxxxx X. Xxxxx
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Xxxxxxx X. Xxxxx
Limited Partner
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SCHEDULE I
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(to Promissory Note (Purpose Credit) dated April 4, 2001)
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Purpose Advances
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Date of Advance Amount of Advance
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April 4, 2001 $97,488
Purpose Stock Options
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Description of Stock Options Valuation Date Value on Valuation Date
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UnitedGlobalCom, Inc. Stock 04/04/01 $ 61,236
Options for 14,208 shares of
Class A Common (vested),
Granted 7/22/93 to Xxxxxxx Xxxxx
UnitedGlobalCom, Inc. Stock 04/04/01 $ 53,700
Options for 20,000 shares of
Class A Common (vested),
Granted 12/20/96 to Xxxxxxx Xxxxx
UnitedGlobalCom, Inc. Stock 04/04/01 $116,175
Options for 30,000 shares of
Class A Common (vested),
Granted 9/18/98 to Xxxxxxx Xxxxx
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