GUARANTEE OF LOAN
(Televar Northwest, Inc., Xxxxxxx XxXxxx and Xxxx X. Xxxxxxxx)
The undersigned (collectively referred to as "Guarantor") acknowledges
that UTCO Associates, Ltd., a Utah limited partnership (hereinafter
referred to as "Lender"), in reliance on this Guarantee, has or will accept
a certain Promissory Note in the amount of Five Hundred Thousand and no/100
Dollars ($500,000.00) (together with any modifications, extensions,
renewals or replacements thereof, the "Note") from Jungle Street, Inc., a
Utah corporation ("Borrower") and will make advances of funds pursuant to
the Note, to pay certain existing indebtedness of Borrower to Key Bank of
Washington and acquire additional computer equipment (the payment of the
obligation to KeyBank of Washington and the acquisition of said equipment
are together referred to herein as the "Lending Project.") All references
to "Loan Documents" in this Guarantee, shall mean the Note, all Guarantees,
the Security Agreement, the Registration Rights Agreement, and any other
documents or instruments relating to any such documents signed by Borrower
or by any guarantor or pledgor, and any modifications, extensions, renewals
or replacements of any of them.
Guarantor hereby acknowledges receipt of good, adequate and valuable
consideration, and Guarantor hereby unconditionally, absolutely and
irrevocably guarantees:
(1) the full and prompt payment of (a) the Note, whether at
maturity, acceleration or otherwise, (b) any other indebtedness
or liability of Borrower under or arising out of the Loan
Documents or any other agreements referred to or provided for
herein and therein, and (c) the payment of all other sums
expended by Xxxxxx, including as to (a), (b), and (c) any
additional
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advances, extensions, renewals or reductions, or any compromise,
indulgence, variation or modification thereof ("Indebtedness"),
and
(2) the performance of any and all obligations of Borrower
required by or under the Loan Documents specifically including
the obligation to pursue all construction constituting any
portion of the Lending Project ("Obligations").
Guarantor's liability hereunder shall be in the full amount owed to Lender,
including any interest, default interest, costs and fees (including,
without limitation, reasonable attorneys' fees) that arise or accrue under
the Loan Documents or that would have arisen or accrued under the Loan
Documents but for the commencement of a case under the Bankruptcy Code or
any other law governing insolvency, bankruptcy, reorganization, liquidation
or like proceeding, plus interest thereon as provided in the Note, plus the
attorneys' fees, costs and other expenses incurred by Lender in the
enforcement of this Guarantee, as further provided below (all such amounts,
including the Indebtedness, and together with the Obligations, being
referred to herein as the "Guaranteed Obligations").
By signing this Guarantee, Xxxxxxxxx also agrees that:
1. Changes Do Not Affect Liability.
a. Lender may, without notice to Guarantor or Guarantor's
authorization and in its absolute discretion and without prejudice to it or
in any way limiting Guarantor's liability under this Guarantee, (i) grant
extensions of time, renewals or other indulgences and modifications to
Borrower or any other party under any of the Loan Documents, (ii) change
the rate of interest under the Note, (iii) change, amend or modify the Loan
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Documents, (iv) authorize the sale, exchange, substitution, release or
subordination of any security or collateral for the Note, whether real or
personal property, (v) take additional security for the Note, whether real
or personal property, (vi) discharge or release, or fail to proceed
against, any party or parties liable for the Guaranteed Obligations, (vii)
foreclose or otherwise realize on any security or collateral for the Note,
regardless of the effect upon Guarantor's subrogation, contribution or
reimbursement rights against Borrower or any other guarantor or pledgor,
(viii) accept or make compositions or other arrangements or file or refrain
from filing a claim in any bankruptcy proceeding of Borrower or any other
guarantor or pledgor, (ix) make other or additional loans to Borrower in
such amount and at such times as Lender may determine in its discretion,
and (x) otherwise deal with Borrower or any other guarantor or party
related to the Loan or any security or collateral as Lender may determine
in its discretion.
b. Without limiting the generality of the foregoing, Guarantor
hereby agrees that Guarantor's liability shall continue even if Lender
alters any obligations under the Loan Documents in any respect or Xxxxxx's
remedies or rights against Borrower are in any way impaired or suspended
without Guarantor's consent, or Lender releases or substitutes, or impairs
or suspends, any remedy against, or fails to proceed against, any principal
obligor, or any guarantor of, or anyone else liable on the Guaranteed
Obligations, and Guarantor hereby waives any defenses based on any such
actions.
2. Guarantee of Payment and Performance.
a. Guarantor's liability under this Guarantee is a guarantee of
payment and performance of all of the Loan Documents, and not merely
collection of, the Note, and is not conditioned or contingent upon the
genuineness, validity, regularity or enforceability of any of
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the Loan Documents. Guarantor hereby agrees that Guarantor is liable even
if Borrower had no liability at the time of execution of the Note or
thereafter ceases to be liable, and Guarantor hereby waives any defenses
based on the absence of such liability.
b. Guarantor hereby agrees that Guarantor's liability may be
larger in amount and more burdensome than that of Borrower. Guarantor's
liability hereunder shall continue until all sums due under the Loan
Documents have been paid in full and shall not be limited or affected in
any way by any impairment or any diminution or loss of value of any
security or collateral for the Loan, whether caused by hazardous substances
or otherwise, Lender's failure to perfect a security interest in it or any
disability or other defense of Borrower or any other guarantor or pledgor.
c. Guarantor hereby agrees that Guarantor's obligations under
this Guarantee shall not be released, diminished, impaired, reduced or
otherwise affected by the invalidity or unenforceability against Borrower
of all or any part of the obligations guaranteed hereby including, without
limitation, any invalidity or unenforceability resulting from the fact
that: (i) the act of Borrower in creating all or any part of the Guaranteed
Obligations is ultra xxxxx, (ii) the officers or representatives of
Borrower executing and delivering the documents evidencing security or
pertaining to partnership authority were acting in excess of their
authority, (iii) the payment of the Indebtedness by Xxxxxxxx would have
resulted in the violation of any usury law, (iv) the Borrower has valid
defenses, claims or offsets (whether at law, in equity or by agreement)
which render all or any part of the Guaranteed Obligations unenforceable
against Xxxxxxxx, (v) the creation, performance, or repayment by Borrower
of the Guaranteed Obligations is illegal, legally impossible or
unenforceable, (vi) one or more of the documents
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evidencing, securing or pertaining to the Guaranteed Obligations have been
forged, altered or is otherwise irregular or unauthentic, or (vii) the
obligations of Borrower are invalid or unenforceable for any other reason,
and Guarantor shall be liable for all of the Guaranteed Obligations as if
no such impediment to Borrower's liability existed.
3. Waivers of Certain Rights and Defenses.
a. Except as provided below, Guarantor hereby waives any and all
benefits and defenses which would otherwise require Lender to (i) proceed
against Borrower or any other guarantor or pledgor, (ii) proceed against or
exhaust any security or collateral Lender may hold, or (iii) pursue any
other right or remedy for Guarantor's benefit, and agree that Lender may
proceed against Guarantor for the obligations guaranteed herein without
taking any action against Borrower (including joining Borrower as a party
in any suit on this Guarantee) or any other guarantor or pledgor and
without proceeding against or exhausting any security or collateral Lender
holds.
b. Guarantor agrees that Xxxxxx may unqualifiedly exercise in its
sole discretion any or all rights and remedies available to it against
Borrower of any other guarantor or pledgor without impairing Xxxxxx's
rights and remedies in enforcing this Guarantee, under which Guarantor's
liabilities shall remain independent and unconditional. Guarantor's
liability shall not be affected, released or exonerated by reason of (i)
any action Lender may take or omit to take under the Loan Documents or by
release or surrender of any security held for the payment of the Loan
Documents, (ii) the failure to perfect a lien (or the unenforceability of
any lien) in any collateral intended as security for any part of the
Guaranteed Obligations, (iii) the release of, the surrender of, the
exchange of or the substitution of all any lien securing any of
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the Guaranteed Obligations to any other lien or liens covering such
collateral, and (iv) the deterioration, waste, loss or impairment
(including without limitation negligent, willful, unreasonable or
unjustifiable impairment) of any such collateral. Xxxxxxxxx agrees that
Xxxxxx's exercise of certain of such rights or remedies may affect or
eliminate Guarantor's right of subrogation or recovery against Borrower and
that Guarantor may incur a partially or totally nonreimbursable liability
under this Guarantee.
c. Guarantor hereby waives diligence and all demands, protests,
presentments and notices of every kind or nature, including notices of
protest, dishonor, nonpayment, acceptance of this Guarantee and the
creation, renewal, extension, modification or accrual of any of the
Guaranteed Obligations. Guarantor further waives the right to plead any and
all statutes of limitations as a defense to Guarantor's liability hereunder
or the enforcement of this Guarantee. No failure or delay on Xxxxxx's part
in exercising any power, right or privilege hereunder shall impair any such
power, right or privilege or be construed as a waiver of or any
acquiescence therein.
d. Guarantor hereby waives (i) notice of the failure of Borrower
to pay or perform, or any default by Borrower under, any document
evidencing, securing, or pertaining to any of the Guaranteed Obligations;
and (ii) notice of any sale or foreclosure (or the posting of the
advertising for sale or foreclosure) of any collateral for any of the
Guaranteed Obligations, with the intent that Guarantor shall not be
considered a "Debtor" as defined in Section 70A-9-105 of the Utah Uniform
Commercial Code.
4. Guarantee Made with Full Knowledge. Guarantor has had the
opportunity to review the matters discussed and contemplated by the Loan
Documents, including the remedies
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Xxxxxx may pursue against Borrower in the event of a default under the Loan
Documents, the value of the security of collateral for the Loan, and
Xxxxxxxx's financial condition and ability to perform under the Loan.
Guarantor further agrees to keep fully informed on all aspects of
Xxxxxxxx's financial condition and the performance of Xxxxxxxx's
obligations to Lender and that Xxxxxx has no duty to disclose to Guarantor
any information pertaining to Borrower or any security or collateral. If
provided in the Loan Documents, Xxxxxxxxx agrees that Guarantor's
bankruptcy, insolvency and other actions set forth therein may be events of
default under the Loan Documents.
5. Subrogation, Reimbursement and Contribution Rights. After default
by Borrower under any of the Loan Documents, Guarantor hereby agrees that
Guarantor shall have no right of subrogation or reimbursement against
Borrower, no right of subrogation against any collateral or security
provided for in the Loan Documents and no right of contribution against any
other guarantor or pledgor unless and until all amounts due under the Loan
Documents have been paid in full and Lender has released, transferred or
disposed of all of its right, title and interest in any collateral or
security, and Guarantor hereby waives any such right Guarantor might
otherwise have. To the extent Guarantor's waiver of these rights of
subrogation, reimbursement or contribution as set forth herein are found by
a court of competent jurisdiction to be void or voidable for any reason,
Guarantor agrees that Guarantor's rights of subrogation and reimbursement
against Xxxxxxxx and Guarantor's right of subrogation against any
collateral or security shall be junior and subordinate to Xxxxxx's rights
against Borrower and to Xxxxxx's right, title and interest in such
collateral or security and Guarantor's right of contribution against
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any other guarantor or pledgor shall be junior and subordinate to Xxxxxx's
rights against such other guarantor or pledgor.
6. Guarantee Continues If Payments Are Avoided or Recovered from
Lender. If all or any portion of the Guaranteed Obligations are paid or
performed, Guarantor's obligations hereunder shall continue and remain in
full force and effect in the event that all or any part of such payment or
performance is avoided or recovered directly or indirectly from Lender as a
preference, fraudulent transfer or otherwise, irrespective of (a) any
notice of revocation given by Guarantor prior to such avoidance or
recovery, and (b) payment in full of the Loan.
7. Attorneys' Fees. The prevailing party in any dispute resulting in
arbitration, litigation or other proceedings between Guarantor and Lender
shall be entitled to its costs and expenses for such proceedings, including
reasonable attorneys' fees and costs. Lender may pay someone else to help
enforce the Guaranteed Obligations and Guarantor shall pay the costs and
expenses of such enforcement. Costs and expenses include Xxxxxx's
reasonable attorneys' fees and legal expenses whether or not performed by a
salaried employee of Lender and whether or not there is a lawsuit,
including reasonable attorneys' fees and legal expenses for bankruptcy
proceedings (and including efforts to modify or vacate any automatic stay
or injunction), all appearances in bankruptcy or insolvency proceedings,
fees and expenses incurred in connection with the appointment of a
receiver, appeals, and any anticipated post-judgment collection services.
Guarantor also shall pay all court costs and such additional fees as may be
directed by the court.
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8. Additional Provisions.
a. The failure of any representation or warranty contained herein
to be accurate and complete in any material respect, or Guarantor's failure
to perform any material covenant contained herein shall, at the option of
Lender, make the Guaranteed Obligations, or such portion thereof as may be
designated by Lender, immediately due and payable to Lender.
b. If more than one person has signed this Guarantee, it shall be
the joint and several obligation of all such persons and Guarantor shall
hold harmless, defend, protect and indemnify Lender from any actions,
causes of action, liabilities, damages, losses and fees (including
attorneys' fees and costs) and all other claims of every nature which may
arise as a result of any dispute between or among any person executing this
Guarantee and any other persons or entities.
c. Xxxxxxxxx agrees to take all actions necessary to enable
Xxxxxxxx to observe and perform, and to refrain from taking any action
which would prevent Borrower from observing and performing, the Guaranteed
Obligations.
d. After default by Borrower under any of the Loan Documents, any
indebtedness of Borrower held by Guarantor, whether secured or unsecured,
and if secured, the security for the same, shall be subordinated to the
indebtedness of Borrower to Lender, and, if Lender so requests, such
indebtedness shall be collected, enforced, and received by Guarantor as a
trustee for Lender and be paid over to Lender on account of the Guaranteed
Obligations but without reducing or affecting in any manner Guarantor's
liability under this Guarantee.
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e. Lender may assign this Guarantee with one or more of the Loan
Documents, without in any way affecting Guarantor's liability under it or
them. This Guarantee shall inure to the benefit of Lender and its
successors and assigns and shall bind Guarantor and Guarantor's respective
heirs, executors, administrators, successors and assigns.
f. In the event of the death of any Guarantor hereunder, the
obligation of the deceased under this Guarantee shall continue in full
force and effect against the Guarantor's estate as to all of such
obligations which shall have been created or incurred by Borrower prior to
the time when Lender shall have received written notice of such death;
provided that, all obligations, of whatever kind or character, created
pursuant to the provisions of any document or agreement between Xxxxxx and
Xxxxxxxx entered into prior to receipt by Xxxxxx of notice of the death of
any Guarantor shall be deemed to be an obligation created, incurred, or
arising prior to receipt of any such notice by Xxxxxx, even though advances
constituting all or a portion of such obligations be made subsequent to
receipt of such a notice by Xxxxxx. In the event of the death of a
Guarantor, this Guarantee shall remain and continue in full force as the
guarantee of each surviving Guarantor of all Guaranteed Obligations,
whether such obligations were created or incurred before or after the time
when Lender shall have received written notice of such death.
g. All notices, requests and demands to be made hereunder shall
be in writing at the address set forth below by any of the following means:
(i) personal service (including service by overnight courier service): (ii)
electronic communication, whether by telex, telegram or telecopying (if
confirmed in writing sent by personal service or by registered or
certified, first
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class mail, return receipt requested); or (iii) shall be deemed received
five (5) days following deposit in the mail.
h. No terms or provisions of this Guarantee may be changed,
waived revoked or amended without Lender's prior written consent. Should
any provision of this Guarantee be determined by a court of competent
jurisdiction to be unenforceable, all of the other provisions shall remain
effective.
i. The term "Borrower", as used herein, shall include, without
limitation, Borrower, Xxxxxxxx's successors and assigns, Borrower as a
debtor-in-possession, and any receiver, trustee, liquidator, conservator,
custodian, or similar party hereafter appointed for Borrower or all, or
substantially all of Borrower's assets pursuant to Title 11 of the United
States Code or any successor statute thereto (the "Bankruptcy Code") or any
estate created by the commencement of a case under the Bankruptcy Code or
any other insolvency, bankruptcy, reorganization or liquidation proceeding,
or by any trustee under the Bankruptcy Code, liquidator, sequestrator or
receiver of Borrower or Borrower's property or similar person duly
appointed pursuant to any law generally governing any insolvency,
bankruptcy, reorganization, liquidation, receivership or like proceeding.
Any change in the status or form of organization of the Borrower shall have
no effect on the obligations of each Guarantor hereunder and this Guarantee
shall continue and cover the Guaranteed Obligations of the Borrower under
its new status or organization as if no change had occurred. If Borrower is
a partnership or joint venture, the term "Borrower" shall include any
technically "new" partnership or joint venture formed as a result of the
dissolution of Borrower, the addition of new partner or venturers in
Borrower or the withdrawal of partners or venturers in Borrower.
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j. The term "Lender," as used herein, shall include, without
limitation, Xxxxxx's successors and assigns, and any subsequent holder of
any part or all of the Guaranteed Obligations, provided however that the
rights hereunder of any subsequent holder of any portion of the Guaranteed
Obligations shall always be subordinate and inferior to the rights of
Lender hereunder with respect to any portion of the Guaranteed Obligations
which are held by Xxxxxx, and Lender shall be entitled to receive payment
and performance of the Guaranteed Obligations before any subsequent holder
shall receive any benefit hereunder.
k. This Guarantee is in addition to the guarantees of any other
guarantors and any and all of Guarantor's other guarantees of Borrower's
indebtedness or liabilities to Lender. This Guarantee shall in no way limit
or lessen any other liability, howsoever arising, Guarantor may have for
the payment of any other indebtedness of Borrower to Lender.
9. Governing Law. THIS GUARANTEE SHALL BE ENFORCED AND INTERPRETED
ACCORDING TO THE LAWS OF THE STATE OF UTAH, IRRESPECTIVE OF ITS CONFLICTS
OF LAWS RULES.
EACH OF THE UNDERSIGNED GUARANTORS ACKNOWLEDGE THAT EACH OF US
WERE AFFORDED THE OPPORTUNITY TO READ THIS DOCUMENT CAREFULLY AND
TO REVIEW IT WITH AN ATTORNEY OF EACH OF OUR CHOICE BEFORE
SIGNING IT. EACH OF US ACKNOWLEDGE HAVING READ AND UNDERSTOOD THE
MEANING AND EFFECT OF THIS DOCUMENT BEFORE SIGNING IT.
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Dated _______________ TELEVAR NORTHWEST, INC., a Washington
corporation
By: /s/
------------------------------------
Its: President
Dated 9/24/96 /s/
---------------------------------------
Xxxxxxx XxXxxx
Dated _______________ /s/
---------------------------------------
Xxxx X. Xxxxxxxx
PROVINCE OF BRITISH COLUMBIA )
)ss.
COUNTY OF __________ )
The foregoing instrument was acknowledged before me this 24th day of
September, 1996, for and on behalf of Televar Northwest, Inc., a Washington
corporation, by Xxxx Xxxxxxxx, its President.
/s/
----------------------------------
NOTARY PUBLIC
Xxxxxxx X. Xxxxxx
Xxxxxxxxx & Solicitor
Montpellier, XxXxxx, ______, Talbot & Xxxxxxx
Suite 550-999 Canada Place
World Trade Centre
Vancouver, B.C. V6C 3C8
(000) 000-0000
STATE OF WASHINGTON )
)ss.
COUNTY OF CHELAN )
The foregoing instrument was acknowledged before me this 24 day of
September, 1996, by Xxxxxxx XxXxxx, an individual.
/s/
-----------------------------------
NOTARY PUBLIC
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PROVINCE OF BRITISH COLUMBIA )
)ss.
COUNTY OF __________ )
The foregoing instrument was acknowledged before me this 24th day of
September, 1996, by Xxxx X. Xxxxxxxx, an individual.
/s/
----------------------------------
NOTARY PUBLIC
Xxxxxxx X. Xxxxxx
Xxxxxxxxx & Solicitor
Montpellier, XxXxxx, ______, Talbot & Xxxxxxx
Suite 550-999 Canada Place
World Trade Centre
Vancouver, B.C. V6C 3C8
(000) 000-0000
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