1
EXHIBIT 10.17
CAPITAL STOCK ESCROW
AND DISPOSITION AGREEMENT
CAPITAL STOCK ESCROW AND DISPOSITION AGREEMENT dated as of April 30,
1999 (the "AGREEMENT"), by and among ▇▇▇▇▇ ▇▇▇▇▇▇ (the "GUARANTOR"); HEBRON
COMMUNICATIONS CORPORATION (collectively with its assigns, the "HOLDER"); and
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇, P.A. (the "ESCROW AGENT").
BACKGROUND INFORMATION
Concurrently with the execution of this Agreement AmeriVision
Communications, Inc., an Oklahoma corporation (the "MAKER") of which the
Guarantor is a member of its board of directors and a controlling shareholder,
has executed in favor of and delivered to the Holder a single promissory note in
the form attaching hereto as Exhibit A (the "FIRST NOTE"), and under the terms
of an Asset Purchase Agreement, of even date herewith, the Maker is required, at
a closing to be conducted hereafter, to execute and deliver to Holder two
additional promissory notes in the forms attaching hereto as composite Exhibit B
(collectively the "REMAINING NOTES" and together with the First Note the
"NOTES"). This Agreement is being entered into for the purpose of better
securing timely payment by the Maker of its obligations under each of the Notes.
Accordingly, for valuable consideration, the receipt and adequacy of which is
acknowledged by each party to this Agreement, the parties agree as follows:
OPERATIVE PROVISIONS
1. DEPOSIT OF COLLATERAL AND NOTES. The Guarantor has delivered to the
Escrow Agent a single certificate evidencing his registered ownership of 50,000
shares, $.10 par value, of the Maker's single class of common stock authorized
for issuance (together with any additional equity securities of the Maker
delivered to the Escrow Agent under the provisions of Section 4 below, the
"SHARES"), and a separate stock power executed by the Guarantor, in the form
attaching hereto as Exhibit C, intended to cause a transfer of registered
ownership of the Shares to the Holder upon proper presentation to the Maker or
its stock transfer agent (collectively, the "COLLATERAL"). The Holder has, in
turn, delivered to the Escrow Agent an executed copy of the First Note, and
herein covenants to deliver an executed copy of each of the Remaining Notes
promptly following its receipt thereof. The Escrow Agent acknowledges receipt of
the Collateral and a copy of the First Note.
2. RELEASE OF COLLATERAL.
(a) DELIVERY TO MAKER UPON SATISFACTION OF NOTE. Upon delivery
to the Escrow Agent of a written notification, executed by the Holder, that the
obligation of the Maker under each of the Notes has been satisfied, the Escrow
Agent shall deliver the Collateral to the Guarantor.
1
2
Delivery shall be made by hand or by registered mail, return receipt requested,
addressed to the Guarantor at the location indicated in Section 7.(a) hereof,
and upon completing such delivery the obligations of the Escrow Agent hereunder
shall terminate. Conversely, if the Guarantor believes that the Maker has
satisfied all of its obligations under all of the Notes, but notice to that
effect has not been timely furnished to the Escrow Agent by the Holder, the
Guarantor may furnish the Escrow Agent with notice of satisfaction, specifying
therein the individual transactions (i.e., the dates, character and amounts of
payment made) upon which he relies to establish such satisfaction by the Maker.
Within three business days following such receipt the Escrow Agent shall furnish
a copy of the Guarantor's notice to the Holder. If, within ten business days
following such delivery to the Holder, the Escrow Agent shall not be in receipt
of the Holder's separate notice denying the Maker's satisfaction, accompanied by
an accounting which sets forth all monetary amounts acknowledged by the Holder
as being received from Maker, including the date of each such receipt and all
amounts, both as to principal and interest, which the Holder believes still to
be owing by the Maker under any of the Notes, the Escrow Agent shall deliver the
Collateral to the Guarantor. Delivery shall be made in the manner specified
above in this subsection and upon completion thereof the Escrow Agent's
obligations hereunder shall terminate.
(b) DELIVERY TO HOLDER UPON DEFAULT. In the event that, on or
after the Maturity Date (as that capitalized term is defined in each Note) and
otherwise during the pendency of this Agreement, the Holder shall believe the
Maker to be in default of its payment obligations under any of the Notes, the
Holder shall believe the Maker to be in default of its payment obligations under
any of the Notes, the Holder may so notify the Escrow Agent, specifying therein
the amount of principal and interest comprising the basis of such alleged
default and a calculation which clearly supports such claim. Within three
business days following receipt of such notice, the Escrow Agent shall furnish a
copy thereof to Maker and the Guarantor. If, within ten business days following
such delivery, the Escrow Agent shall not be in receipt of Maker's or the
Guarantor's separate notice denying the Maker's default alleged by the Holder,
accompanied by the Maker's canceled check(s), confirmation of completed wire
transfer, or other evidence of its payment of all amounts due, both as to
principal and interest, under each Note, Escrow Agent shall deliver the
Collateral to the Holder. Delivery shall be made by hand or by registered mail,
return receipt requested, addressed to the Holder at the location indicated in
Section 7.(a) hereof, and upon completing such delivery the obligations of the
Escrow Agent hereunder shall terminate.
(c) DELIVERY FOLLOWING DISPUTE CONCERNING SATISFACTION OR
DEFAULT. If, after delivering the Guarantor's notice of satisfaction as
described in paragraph (a) above or the Holder's notice of default as described
in paragraph (b), the Escrow Agent shall timely receive the above-described
notice (and any accompanying supportive documentation) from the remaining party
disputing the alleged satisfaction or default, the Escrow Agent shall retain
possession of the Collateral until the controversy has been settled by the
remaining parties to this Agreement and shall take further action with respect
thereto only in accordance with the terms of (1) an agreement, dated subsequent
to the date of the Escrow Agent's receipt of the applicable notice of dispute
and executed by the Guarantor and the Holder, or (2) a final judgment entered by
a court of competent jurisdiction as to which the time for appellate review has
expired and no appeal has been taken; provided that, in lieu of retaining the
Collateral, the Escrow Agent may, at any time after its receipt of notice of a
dispute, file an action of interpleader in a court of competent jurisdiction and
thereafter release
2
3
possession of the Collateral to the registry of such court, following which
action is obligations hereunder shall terminate.
3. DISPOSITION OR RETENTION OF COLLATERAL RECEIVED BY HOLDER. In the
event that the Holder obtains possession of the Collateral pursuant to the terms
of Section 2.(b) hereof, the Holder shall be required to sell such of the Shares
as shall be necessary to satisfy its claims against the Guarantor, provided,
however, that holder's possession of the Collateral and any disposition of the
Shares shall be in the capacity of a secured party there therefore controlled
by, and subject to the Florida Uniform Commercial Code - Secured Transactions,
Chapter 679, Florida Statutes, or any successor law, and to the requirements of
applicable federal and state securities law relating to the resale of restricted
securities. Unless the Shares are then of a class customarily traded on a
nationally recognized securities market, the Holder shall give the Guarantor at
least a 15-day notice of any such proposed sale, whether public or private, so
the Guarantor may bid thereat. The amount of the Holder's claims to be satisfied
from the sale of any of the Shares shall equal the total amount due under each
Note which is not theretofore paid, inclusive of accrued but unpaid interest,
together with such expenses, expressly including a reasonable attorney fee and
associated legal expenses, as are due and payable pursuant to each Note and
reimbursable under the Florida Uniform Commercial Code. Any excess of the
proceeds received upon sale of any of the Shares shall be paid to the Guarantor
(and any unsold Shares returned to him); and any deficiency which remains after
a sale of all the Shares shall be recoverable by such other legal remedies then
available to the Holder, none of which shall be deemed waived by the Holder's
sale of the Shares.
4. DIVIDENDS, DISTRIBUTIONS AND VOTING RIGHTS. All dividends and other
distributions made with respect to the Shares, except cash dividends or
distributions paid out of the Maker's earnings or profits, and all securities
exchanged for or issued in a reclassification of or substitution for the same,
shall be delivered by the Guarantor to the Escrow Agent and held by it as
additional security under the provisions of this Agreement. So long as the Maker
is not in default under any Note the Guarantor shall have all rights of
ownership, including voting rights, with respect to the Shares other than that
of possession and as limited by the preceding sentence.
5. RIGHTS AND LIMITATIONS UPON DUTY OF ESCROW AGENT. The Escrow Agent:
(a) shall not be obligated to deliver any item of property or
property interest unless the same shall have been first actually received by the
Escrow Agent pursuant to the provisions hereof.
(b) shall not be responsible in any manner for the validity or
sufficiency of any share certificate or stock power received by it in its
capacity as Escrow Agent.
(c) shall be entitled to act upon any written certificate,
statement, notice, demand, request, consent, agreement or other instrument
whatever, not only in reliance upon its due execution and the validity and
effectiveness of its provisions, but also as to the accuracy and completeness of
any information therein contained, which the Escrow Agent shall in good faith
believe to be genuine and to have been signed or presented by any authorized
person.
3
4
(d) shall be entitled to request and receive from any
remaining party hereto such documents in addition to those provided for herein
as the Escrow Agent may deem necessary to resolve any questions of fact involved
in the provisions hereof.
(e) may, at the expense of the remaining parties hereto,
consult independent counsel of its choice in respect to any question relating to
its duties or responsibilities under this Agreement, and shall not be liable for
any action taken or omitted in good faith on advice of such counsel.
(f) shall be under no obligation to advance any funds in
connection with the maintenance or administration of this Agreement, to
institute or defend any action, suit or legal proceeding in connection herewith,
or to take any other action likely to involve the Escrow Agent in expense,
unless first indemnified by the remaining parties hereto, or either of them, as
the case may be, to the Escrow Agent's satisfaction.
(g) shall not be bound by any amendment to this Agreement or
by any other agreement between the remaining parties hereto except such
amendment or agreement as shall have been executed by the Escrow Agent.
(h) shall have only such duties and responsibilities as are
expressly set forth in this Agreement, together with a general fiduciary duty of
reasonable diligence in the performance of its obligations hereunder.
(i) may resign and be discharged from its duties hereunder at
any time by furnishing notice of such intended resignation to each other party,
specifying a date when such resignation shall take effect (which date shall be
no fewer than 15 days after the date of mailing or other delivery of such
notice) and furnishing to such parties, on or prior to such date, a final
accounting of the assets that then comprise the Collateral and of all financial
activity within the escrow account from the latter of (1) the date of the Escrow
Agent's appointment, or (2) the date of the Escrow Agent's most recent
accounting, provided, however, that the Escrow Agent shall have accounted for
all periods for which it has held the funds until the date of such resignation
(the "ACCOUNTING"). Upon receipt of such notice, the remaining parties shall
appoint a successor escrow agent, such successor to become Escrow Agent
hereunder upon the resignation date specified in the subject notice or, if
later, upon the Escrow Agent's presentation of the Accounting. If such parties
are unable to agree upon the identity of a successor escrow agent within 15 days
after the date of such notice, the Escrow Agent shall be entitled to appoint its
own successor and shall continue to act in its fiduciary capacity until its
successor accepts the escrow by notice to the parties hereto and takes
possession of the Funds. If the Escrow Agent is unable, despite the use of its
best efforts, to obtain the services of a successor, it may petition a court of
competent jurisdiction for an appointment effecting such an appointment or
providing another remedy, and, pending entry, may deposit the Collateral in the
registry of the court, together with the Accounting (prepared, in such event,
through the end of the business day immediately preceding such a deposit). The
remaining parties may at any time agree to substitute a new escrow agent by
giving notice thereof to the Escrow Agent then acting.
4
5
(j) shall be indemnified and held harmless by each of the
remaining parties hereto against any and all liabilities incurred by it
hereunder, except for those resulting from the willful misconduct or gross
negligence of the Escrow Agent.
(k) shall have a lien upon all escrowed assets in an amount
sufficient to secure all liabilities, expenses, fees, costs or charges paid,
incurred or earned by it arising out of or resulting from this escrow
arrangement, and the right, superior to all duties imposed upon it under this
Agreement, to retain possession of all escrowed assets pending satisfaction of
all such amounts.
(l) may, if it becomes uncertain concerning its rights and
responsibilities under this Agreement, or if it receives instructions with
respect to the Collateral that it believes to be in conflict with the terms
hereof, or is advised that a dispute has arisen with respect to the Collateral,
without liability, refrain from taking any action other than to use its best
efforts to safeguard the Collateral until it is directed otherwise in a writing
signed by the remaining parties or by an order of a court of competent
jurisdiction. The Escrow Agent is not obligated to institute or defend any legal
proceedings, although it may, in its sole discretion and at the remaining
parties' expense, institute or defend such proceedings (including proceedings
seeking a declaratory judgment), join interested parties and deposit the
Collateral in the registry of the court.
6. COMPENSATION AND EXPENSES. For any services which it may be required
or reasonably deem appropriate to render hereunder (other than the passive
receipt and holding of Collateral), the Escrow Agent shall receive compensation
from the remaining parties at the rate and in the manner charged under its
applicable standard fee schedule in effect at the time a particular service is
rendered. The remaining parties shall further be obligated to pay for all
reasonable expenses and costs incurred by the Escrow Agent in the administration
of this Agreement, which expenses shall be separately billed by the Escrow Agent
either in advance (based on reasonable estimates) or following their incurrence,
as the Escrow Agent shall determine.
7. MISCELLANEOUS PROVISIONS.
(a) NOTICES. All demands, notices, requests, consents and
other communications required or permitted under this Escrow Agreement shall be
in writing and shall be personally delivered or sent by facsimile machine (with
a confirmation copy sent by one of the other methods authorized in this
Section), commercial courier or United States Postal Service overnight delivery
service, or, deposited with the United States Postal Service and mailed by first
class, registered or certified mail, postage prepaid, as set forth below:
As to Guarantor: ▇▇▇▇▇ ▇▇▇▇▇▇
c/o AmeriVision Communications, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
As to the Holder: Hebron Communications Corporation
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
5
6
As to Escrow Agent: ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇, P.A.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Notices shall be deemed given upon the earlier to occur of (1)
actual receipt by the party to whom such notice is directed; (2) if sent by
facsimile machine, on the day (other than a Saturday, Sunday or legal holiday in
the jurisdiction to which such notice is directed) such notice is sent if sent
(as evidenced by the facsimile confirmed receipt) prior to 5:00 p.m. Eastern
Time and, if sent after 5:00 p.m. Eastern Time, on the day (other than a
Saturday, Sunday or legal holiday in the jurisdiction to which such notice is
directed) after which such notice is sent; (3) on the first business day (other
than a Saturday, Sunday or legal holiday in the jurisdiction to which such
notice is directed) following the day the same is deposited with the commercial
carrier if sent by commercial overnight delivery service; or (4) the fifth day
(other than a Saturday, Sunday or legal holiday in the jurisdiction to which
such notice is directed) following deposit thereof with the United States Postal
Service as aforesaid. Each party, by notice duly given in accordance therewith
may specify a different address for the giving of any notice hereunder.
(b) BINDING AGREEMENT; NON-ASSIGNABILITY. Each of the
provisions and agreements herein contained shall be binding upon and inure to
the benefit of the respective parties hereto, as well as their successors, but
no statement contained herein is intended to confer upon any person or entity,
other than the parties hereto and their successors in interest and permitted
assignees, any rights or remedies under or by reason of this Agreement unless so
stated to the contrary. No right under this Agreement shall be assignable nor
any duty delegable by any party, except as expressly authorized in this
Agreement, without the prior consent of each other party.
(c) ENTIRE AGREEMENT. This Agreement, and the other documents
referenced herein, constitute the entire understanding of the parties hereto
with respect to the subject matter hereof, and no amendment, modification or
alteration of the terms hereof shall be binding unless the same be in writing,
dated subsequent to the date hereof and duly approved and executed by each of
the parties hereto.
(d) SEVERABILITY. If any term or other provision of this
Agreement is held by a court of competent jurisdiction to be invalid, illegal or
incapable of being enforced in any particular respect or under any particular
circumstance, such term or provision shall nevertheless remain in full force and
effect in all other respects and under all other circumstances, and all other
terms, conditions and provisions of this Agreement shall nevertheless remain in
full force and effect so long as the economic or legal substance of the
transactions contemplated hereby is not affected in any manner materially
adverse to any party. Upon such determination that any term or other provision
is invalid, illegal or incapable of being enforced, the parties hereto shall
negotiate in good faith to modify this Agreement so as to effect the original
intent of the parties as closely as possible in an acceptable manner, to the end
that the transactions contemplated hereby are fulfilled to the fullest extent
possible.
(e) HEADINGS. The headings of this Agreement are inserted for
convenience and identification only, and are in no way intended to describe,
interpret, define or limit the scope, extent or intent hereof.
6
7
(f) APPLICATION OF FLORIDA LAW. This Agreement, and the
application or interpretation thereof, shall be governed exclusively by its
terms and by the laws of the State of Florida. Venue for all purposes shall be
deemed to lie within Hillsborough County, Florida.
(g) COUNTERPARTS. This Agreement may be executed in any number
of counterparts, by means of multiple signature pages each containing less than
all required signatures, and by means of facsimile signatures, each of which
shall be deemed an original, but all of which together shall constitute one and
the same instrument.
7
8
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement on the day and year first written above.
HOLDER: HEBRON COMMUNICATIONS
CORPORATION
By: /s/ ▇▇▇▇ ▇. Telling
-------------------------------
▇▇▇▇ ▇. Telling, President
GUARANTOR: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
----------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇
ESCROW AGENT: ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇,
P.C.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, President
8
9
GUARANTY AGREEMENT
This Guaranty Agreement is made and given as of April 30, 1999, by
▇▇▇▇▇ ▇▇▇▇▇▇ (hereafter referred to as "GUARANTOR") to HEBRON COMMUNICATIONS
CORPORATION, a Florida corporation ("HCC").
As an inducement to HCC to enter into that certain Asset Purchase
Agreement, of even date herewith, with AMERIVISION COMMUNICATIONS, INC., an
Oklahoma corporation ("AVCI"), under the terms of which HCC will sell its
operating assets to AVCI at a closing to occur hereafter and in exchange for
AVCI's execution and delivery of three separate promissory notes evidencing
various components of the purchase price (the "NOTES"), one of which has been
delivered by AVCI contemporaneously with the execution of this Agreement and the
other two will be executed and delivered contemporaneously with the closing of
this Asset Purchase Agreement, and timely payment of each of which is to be
secured by Guarantor's deposit into escrow, pursuant to the terms of a Capital
Stock Escrow and Disposition Agreement of even date herewith among AVCI, HCC and
the Escrow Agent named therein (the "ESCROW AGREEMENT"), of 50,000 shares of
AVCI's single authorized class of common voting stock, all of which are
registered in Guarantor's name (all of the foregoing instruments, together with
any other identified therein, being collectively referred to as the "LOAN
DOCUMENTS"), and in consideration for HCC's execution and delivery of the Asset
Purchase Agreement, the undersigned Guarantor hereby absolutely and
unconditionally guarantees to HCC payment and collection in full of all sums due
to HCC under and pursuant to the Notes and the other Loan Documents, including,
without limitation, all interest, late charges and other expenses payable to HCC
thereunder, whether at maturity or otherwise, and the full performance of all
obligations of AVCI under the Notes and the other Loan Documents (all of the
foregoing guaranteed obligations of AVCI being hereinafter sometimes referred to
collectively as the "OBLIGATIONS").
Guarantor's obligations hereunder shall be unconditional irrespective
of, among other matters, the lack of genuineness, validity, regularity or
enforceability of the Loan Documents or of AVCI's Obligations evidenced thereby,
any and all suretyship defenses otherwise available to Guarantor (which are
hereby expressly waived), and any other bar to the enforceability of this
Guaranty or of any Loan Document, whether against Guarantor, AVCI or any other
guarantor of AVCI's Obligations. Guarantor shall, upon the occurrence of an
event of default under any Loan Document and subsequent demand of HCC, pay all
amounts due to HCC under all Loan Documents, without defense or set off, and HCC
shall not be required, as a condition of its demand for or receipt of such
payment, to first proceed to preserve, utilize or exhaust any other right or
remedy against AVCI, any other guarantor or any collateral or security interest
held by HCC and arising out of HCC's loan to AVCI as evidenced by the Loan
Documents.
Guarantor expressly waives acceptance of this Guaranty by HCC,
presentment and demand for payment, protest, notice of protest and notice of
dishonor or non-payment of any AVCI Obligation; any right to require suit
against AVCI or any other party before enforcing this Guaranty; any right to
have security applied before enforcing this Guaranty; and any right of
subrogation to HCC's rights against AVCI until AVCI's Obligations to HCC are
paid in full; and Guarantor hereby consents and agrees that renewals and
extensions of time of payment, surrender, release, exchange,
9
10
substitution, dealing with or taking of additional collateral security, taking
or release of other guaranties, abstaining from taking advantage of or realizing
upon any collateral security or other guaranties and any and all other
forebearances or indulgences granted by HCC to AVCI or any other party in
connection with the transactions described in any of the Loan Documents may be
made, granted and effective by HCC without notice to Guarantor and without in
any manner affecting his liability hereunder.
Guarantor covenants and agrees with HCC that during such time as this
Guaranty is in effect, Guarantor will make no material adverse change in his
financial status. In the event of any breach of such covenant and agreement, all
AVCI Obligations under each Loan Document, regardless of their terms, shall, at
HCC's discretion, be deemed for the purposes of this Guaranty to have matured,
and, at HCC's election, Guarantor shall promptly pay and perform all AVCI
Obligations, and HCC may take any action deemed necessary or advisable to
enforce this Guaranty.
To induce HCC to accept this Guaranty Agreement and to make the loans
evidenced by the Note, Guarantor represents and warrants to, and, as applicable,
covenants with, HCC that:
(h) This Guaranty Agreement is a legal, valid and binding
obligation of Guarantor enforceable against Guarantor in accordance with its
terms, except to the extent that such enforcement may be limited by applicable
bankruptcy, insolvency and other similar laws affecting creditors' rights
generally, and principles of equity.
(i) Guarantor is not insolvent or contemplating filing a
voluntary petition for bankruptcy nor aware of any possibility or threat of
being subject to any petition for involuntary bankruptcy.
(j) Guarantor's personal financial statement, dated as of
April 30, 1999, in the form attaching hereto as Exhibit A (the "FINANCIAL
STATEMENT"), represents his good faith estimate of the value of Guarantor's
assets and liabilities and a statement of his adjusted gross income as reflected
on his personal federal income tax return as filed with respect to calendar year
1998, and there has been no material adverse change in the Guarantor's assets,
liabilities or adjusted gross income from that reflected in the Financial
Statement.
(k) Guarantor has no fixed or contingent liabilities which are
material but are not reflected in the Financial Statement or in any notes
thereto. No information, exhibit or report furnished by Guarantor to HCC in
connection with the negotiation of this Guaranty Agreement contains any material
misstatement of fact or omits to state a material fact necessary, in order to
make the statements made therein, in light of the circumstances under which they
shall have been made, not materially misleading.
(l) Guarantor is not a party to any indenture, loan or loan
agreement, or, to Guarantor's knowledge, any lease or other agreement or
instrument, or subject to any restriction, which could have a material adverse
effect on the ability of Guarantor to carry out his obligations under this
Guaranty Agreement. Guarantor is not in default in any respect in the
performance, observance or fulfillment of any of the obligations, covenants or
conditions contained in any agreement or instrument to which he is a party.
10
11
(m) There is no pending or, to Guarantor's knowledge,
threatened action or proceeding against or affecting Guarantor before any court,
governmental agency or arbitrator which may, in any single case or in the
aggregate, materially adversely affect the Guarantor's business, properties,
assets, liabilities, affairs, financial condition or prospects, or Guarantor's
ability to perform his obligations under this Guaranty Agreement.
(n) Guarantor is neither in default under, nor subject to, any
judgment, writ, injunction, decree, rule, or regulation of any court, arbitrator
or federal, state, municipal or other governmental authority, commission, board,
bureau, agency or instrumentality, domestic or foreign.
(o) Guarantor has title to all of his properties and assets,
real and personal, tangible and intangible, including the properties and assets
reflected in his Financial Statement (other than any properties or assets
thereafter disposed of in the ordinary course of his business or personal
activities, for full value), and none of the properties and assets owned by
Guarantor are subject to any lien except as disclosed to HCC in writing.
(p) Guarantor has filed all tax returns (federal, state and
local) required to be filed and has paid all taxes, assessments and governmental
charges and levies thereon which are due, including interest and penalties.
This Guaranty shall not expire until all of AVCI's Obligations have
been satisfied. This Guaranty shall be binding upon Guarantor, each of his
transferees and assigns, and, in the event of his death, his personal
representative(s) and each of his devisees and heirs, to the extent of the value
of those properties and assets owned by Guarantor and passing under the terms of
his will or the laws of intestacy, and as otherwise allowed by applicable law,
jointly and severally, and shall inure to the benefit of HCC, its successors and
assigns. The obligations, representations and warranties of Guarantor set forth
herein are undertaken and made jointly and severally with those of each other
guarantor, if any, of AVCI's Obligations.
In the event that a petition in bankruptcy or for an arrangement or
reorganization of AVCI under the bankruptcy laws or for the appointment of a
receiver for AVCI or any of its property is filed by or against AVCI, or if AVCI
shall make an assignment for the benefit of its creditors or shall become
insolvent, all indebtedness of AVCI shall, for the purposes of this Guaranty, be
deemed to have become immediately due and payable.
Any notice furnished to Guarantor by HCC at any time shall not imply
that such notice or any further or similar notice was, is or shall in the future
be required.
Guarantor shall pay to HCC any and all costs, expenses and reasonable
attorneys' fees paid or incurred by HCC in collecting or endeavoring to collect
the indebtedness of AVCI under the Loan Documents or in enforcing or endeavoring
to enforce this Guaranty.
11
12
IN WITNESS WHEREOF, this Guaranty has been executed and delivered to
HCC by Guarantor as of the day and year written above.
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇
STATE OF OKLAHOMA )
)
COUNTY OF OKLAHOMA )
The foregoing Guaranty was executed before me, this ___ day of May
1999, by ▇▇▇▇▇ ▇▇▇▇▇▇, an individual who either is personally known to me or
produced his Oklahoma driver's license as identification, and who was placed
under oath by me prior to such execution.
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------------
(signature)
▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------------
(printed name)
Notary Public, State of Oklahoma
My commission expires: 2/17/00
12