XxxxxxXxxxxx.xxx Agreement Number295293/337589
CORPORATE GUARANTY
FOR VALUE RECEIVED, and in consideration of, and in order to induce
XxxxxxXxxxxx.xxx Inc., (herein called "Lessor") to enter into a certain Master
Lease Agreement (Lease No. 295293/337589) dated ___________________________
(herein called the "Lease"), with GTS/HDD, Inc. (herein called "Lessee'), a
Arkansas corporation, with its principal place of business at 0000 Xxxxxxxxxxx
Xxxxx Xxxx, Xxxxxxxxxx XX 00000, providing for the lease of certain equipment
now leased or hereafter to be leased under the Lease and any Equipment
Schedules) executed pursuant thereto (herein called the "Equipment"), the
undersigned, Midwest Cable Communications of AR., Inc.. (herein called
"Guarantor") a Arkansas Corporation , with its principal place of business at
7125 XxXxxxx, Xxxxxxxxxxxx, XX 00000, being financially interested in and
dependent upon the economic well being of Lessee, hereby absolutely and
unconditionally guarantees to Lessor the full and prompt performance by Lessee
of all obligations which Lessee presently or hereafter may have to Lessor under
the Lease and any Equipment Schedules) executed pursuant thereto, and the
payment when due of all rent and all other sums presently or hereafter owing by
Lessee to Lessor thereunder, and agrees to indemnify Lessor against any losses
Lessor may sustain and expenses it may incur as a result of any default by
Lessee under the Lease and/or as a result of the enforcement or attempted
enforcement by Lessor of any of its rights against Guarantor hereunder.
Guarantor hereby expressly waives all defenses which might constitute a
legal or equitable discharge of a surety or guarantor, and agrees that this
Guaranty shall be valid and unconditionally binding upon Guarantor regardless of
(i) the reorganization, merger or consolidation of Lessee into or with another
entity, corporate or otherwise, or the dissolution of Lessee, or the sale or
other disposition of all or substantially all of the capital stock, business or
assets of Lessee to any other person or party, or (ii) the voluntary or
involuntary bankruptcy (including a reorganization in bankruptcy) of Lessee, or
(iii) the granting by Lessor of any indulgences to Lessee, or (iv) the assertion
by Lessor against Lessee of any of Lessor's rights and remedies provided for
under the Lease or existing in its favor in law, equity or bankruptcy, or (v)
the release of Lessee from any of its obligations under the Lease by Lessor or
by operation of law or otherwise, or (vi) any invalidity, irregularity, defect
or unenforceability of any provision of the Lease, or (vii) any defect in
Lessor's title to any of the Equipment. Guarantor hereby waives notice of and
consents to the leasing of all Equipment now or hereafter leased under the Lease
and any Equipment Schedules) executed pursuant thereto, to any subleasing or
other use of any Equipment permitted by Lessor, (regardless of whom any such
sublessee or user may be), to all of the provisions of the Lease and any said
Equipment Schedules), and to any amendments thereof, and to any actions taken
thereunder, and to the execution by Lessee of the foregoing documents and of any
other agreements, documents and instruments executed by Lessee in connection
therewith. Guarantor further waives notice of Lessor's acceptance of this
Guaranty, of any default and non-payment and/or non-performance by Lessee under
the Lease, of presentment, protest and demand, and of all other matters to which
Guarantor might otherwise be entitled.
Guarantor further agrees that this Guaranty shall remain and continue in
full force and effect notwithstanding any renewal, modification or extension of
the Lease or the lease term of any Equipment, Guarantor hereby expressly waiving
all notice of and consenting to any such renewal, modification or extension, and
to the execution by Lessee of any documents pertaining to any such renewal,
modification or extension. Guarantor further agrees that its liability under
this Guaranty shall be absolute, primary and direct, and that Lessor shall not
be required to pursue any right or remedy it may have against Lessee under the
Lease or otherwise (and shall not be required to first commence any action or
obtain any judgment against Lessee) before enforcing this Guaranty against
Guarantor, and that Guarantor will, upon demand, pay Lessor the amount of all
rents and all other sums, the payment of which, by Lessee, is in default under
the Lease, and will, upon demand, perform all other obligations of Lessee, the
performance of which, by Lessee, is in default under the Lease. Guarantor
further warrants and represents to Lessor that the execution and delivery of
this Guaranty is not in contravention of Guarantor's charter, certificate of
incorporation, by-laws and applicable law; that the execution and delivery of
this Guaranty, and the performance thereof, has been duly authorized by
Guarantor's Board of Directors, and will not result in a breach of or constitute
a default under, or result in the creation of any security interest, lien,
charge or encumbrance upon any property or assets of Guarantor pursuant to any
lean agreerment, indenture or contract to which Guarantor is a party or by or
under which it is bound.
No payment by Guarantor hereunder shall entitle Guarantor, by subrogation,
contribution, indemnity, reimbursement or otherwise, to any payment by Lessee
under or out of the property of Lessee, except after the full performance,
payment and discharge of all of Lessee's obligations to Lessor and/or Lessor's
successors and assigns. If any claim is made upon Lessor and/or Lessor's
successors and assigns at any time for repayment or recovery of any amounts) or
other value received by Lessor or its successors and assigns from any source, in
payment of or on account of any of the obligations of Lessee guaranteed
hereunder and any of Lessor or its successors or assigns repays or otherwise
becomes liable for all or any part of such claim, for whatever reason, Guarantor
shall remain jointly and severally liable to Lessor and/or Lessor's successors
and assigns hereunder as if such amounts) had never been received by Lessor or
its successors or assigns, notwithstanding any termination hereof or the
termination of the Lease or other agreements evidencing any of the obligations
of Lessee. Further, notwithstanding the foregoing, in the event that Lessee is a
partnership, the foregoing restrictions contained in this paragraph on payment
by Lessee shall not prohibit distributions to Guarantor in its capacity as a
partner of Lessee provided same is made by Lessee in the ordinary course of
Lessee's business.
Upon written request of Lessor, Guarantor will furnish Lessor unaudited
quarterly financial statements of Guarantor within sixty (60) days after the end
of each quarter, certified to be true and correct by its chief financial
officer, and will also furnish Lessor, within ninety (90) days after the close
of each fiscal year of Guarantor a consolidated Balance Sheet and Profit and
Loss Statement and Source and Application of Funds of Guarantor as of the end of
such year certified by the independent public accountants of Guarantor. To the
extent that Guarantor is or may be required to submit quarterly and/or annual
reports and/or certifications to the Securities Exchange Commission, Guarantor
will furnish Lessor with copies of such reports and/or certifications at the
time of the said submission of same by Guarantor.
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XxxxxxXxxxxx.xxx Agreement Number295293/337589
Guarantor hereby agrees that the failure of Lessor to insist in any one or
more instances upon a strict performance or observance of any of the terms,
provisions or covenants of the Lease, or to exercise any of its rights
thereunder, shall not be construed or deemed to be a waiver or relinquishment
for the future of any such teens, provisions, covenants or rights, but such
terms, provisions, covenants and rights shall continue and remain in full force
and effect. Receipt by Lessor of any rent or other sums payable under the Lease
with knowledge that Lessee has breached any of the teens, provision or covenants
of the Lease shall not be deemed to be a waiver by Lessor of such breach.
No assignment or other transfer by Lessor or Lessee of any interest, right
or obligation under the Lease and any Equipment Schedule executed pursuant
thereto, or assumption by any third party of the obligations of Lessee under the
Lease and any said Equipment Schedule, shall extinguish or diminish the
unconditional, absolute, primary and direct liability of Guarantor under this
Guaranty, Guarantor hereby consenting to and waiving all notice of any such
assignment, transfer or assumption.
This Guaranty is assignable by Lessor without notice to Guarantor, but may
not be assigned by Guarantor. Any assignee of Lessor shall have all the rights
of Lessor hereunder and may enforce this Guaranty against Guarantor with the
same force and effect as if this Guaranty were given to such assignee in the
first instance. This Guaranty shall be construed liberally in Lessor's favor,
shall inure to the benefit of Lessor, and its successors and assigns, and shall
be binding upon Guarantor and its successors and assigns.
THE UNDERSIGNED GUARANTOR HEREBY KNOWINGLY, WILLINGLY AND VOLUNTARILY AGREES
THAT THIS GUARANTY AND THE OBLIGATIONS PROVIDED FOR HEREUNDER SHALL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS AND DECISIONS OF THE STATE OF
CALIFORNIA AND THE VALIDITY, INTERPRETATION, ENFORCEMENT AND EFFECT OF THEREOF
SHALL BE GOVERUED BY THE LAWS AND DECISIONS OF THE STATE OF CALIFORNIA. THE
UNDERSIGNED GUARANTOR HEREBY KNOWINGLY, WILLINGLY AND VOLUNTARILY CONSENTS TO
THE JURISDICTION AND VENUE OF ALL COURTS IN SAID STATE. THE UNDERSIGNED
GUARANTOR HEREBY KNOWINGLY, WILLINGLY AND VOLUNTARILY WAIVES ANY RIGHT TO
PERSONAL SERVICE OF PROCESS IN ANY ACTION BROUGHT IN CONNECTION WITH OR ARISING
OUT OF THIS GUARANTY AND CONSENTS TO SERVICE OF PROCESS BY CERTIFIED OR
REGISTERED MAIL, RETURN RECEIPT REQUESTED, DIRECTED TO THE LAST KNOWN ADDRESS OF
THE UNDERSIGNED GUARANTOR, WHICH SERVICE SHALL BE DEEMED COMPLETED WITHIN TEN
(10) DAYS AFTER THE DATE OF MAILING THEREOF. THE UNDERSIGNED GUARANTOR HEREBY
KNOWINGLY, WILLINGLY AND VOLUNTARILY WAIVES ANY RIGHT TO ASSERT THAT ANY ACTION
BROUGHT IN CONNECTION WITH OR ARISING OUT OF THIS GUARANTY IN SUCH COURT IS IN
AN IMPROPER VENUE OR SUCH ACTION SHOULD BE TRANSFERRED TO A MORE CONVENIENT
FORUM. THE UNDERSIGNED GUARANTOR HEREBY KNOWINGLY, WILLINGLY AND VOLUNTARILY
WAIVES TRIAL BY JURY IN ANY ACTION BROUGHT IN CONNECTION WITH OR ARISING OUT OF
THIS GUARANTY.
IN WITNESS WHEREOF, Guarantor has caused this Guaranty to be executed by
its duly authorized officer, this 14th day of 3, __________.
/s/ Xxxxxx X. Xxxxxxx
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Guarantor
By: Xxxxxx X. Xxxxxxx
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Title: President
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CERTIFICATION
I, O. Xxx Xxxxxxx do hereby certify that I am the duly elected and qualified
Secretary of Midwest Cable Communications of AR., Inc., a Arkansas corporation,
the Guarantor named in the foregoing Guaranty; that at a (special) (regular)
meeting of the Board of Directors of said Corporation held on ________________,
__________, at which meeting a quorum was present and acting throughout, the
foregoing Guaranty was submitted to, and approved by, the Board of Directors of
said Corporation, and that the officer that executed the Guaranty for and on
behalf of the Corporation was so authorized by the Board of Directors of the
Corporation.
1N WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of said
Corporation this 14th day of March.
/s/ O. Xxx Xxxxxxx
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Secretary
O. Xxx Xxxxxxx
(Corporate Seal)
