EXHIBIT 10.35
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GUARANTY FOR PURPOSE CREDIT
(Xxxxxxx X. Xxxxx)
Denver, Colorado April 4, 2001
In consideration of the loan made to The Fries Family Partnership LLLP, a
Colorado limited liability limited partnership ("Borrower") by United
International Properties, Inc. ("Lender"), as evidenced by that certain demand
Promissory Note (Purpose Credit) in the principal amount of $97,488 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.
"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 or 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 evidencing purpose
credit from Borrower or Guarantor payable to Lender. 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 Holder'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 the 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
the 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 Notes.
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 Note. 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.
Executed by Guarantor to be effective as of the date set forth above.
/s/ Xxxxxxx X. Xxxxx
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Xxxxxxx X. Xxxxx
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SCHEDULE I
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(to Guaranty dated April 4, 2001)
PURPOSE ADVANCES
Date of Advance Amount of Advance
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April 4, 2001 $97,488
PURPOSE STOCK OPTIONS
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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