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EXHIBIT 10.79
GUARANTY AGREEMENT
THIS GUARANTY AGREEMENT made and entered into as of October
17, 1996, (the "Guaranty"), by XXXXXX, INC ("the Guarantor"), a corporation
duly organized and existing under the laws of the State of Delaware, with
authority to do business in the State of Iowa, in favor of KIRKWOOD COMMUNITY
COLLEGE, ("Kirkwood");
WITNESSETH:
WHEREAS, Kirkwood Community College, Cedar Rapids, Iowa, a
school corporation organized and existing under the Constitution and laws of
the State of Iowa, has entered into or will enter into Industrial New Jobs
Training Agreements to provide education and training to workers in new jobs at
the Iowa facilities of XxXxxx Telecommunications, Inc., XxXxxx Telemanagement,
Inc. and XxXxxx Network Services, Inc. (individually and collectively the
"Employer") pursuant to Industrial New Jobs Training Agreements dated as of
October 17, 1996, (individually and collectively the "Agreements") between
Kirkwood and the respective Employers; and
WHEREAS, Guarantor, as owner of part or all of the issued and
outstanding shares of each Employer is desirous that Kirkwood provide training
to the employees in the new jobs and is willing to enter into this Guaranty in
order to further secure the training, and the payments, covenants, agreements
and conditions of the Employers under the Agreements.
NOW, THEREFORE, in consideration of Kirkwood entering into the
Agreements and providing training as therein provided and as an inducement to
Kirkwood to enter into the Agreements and provide, pursuant to the Agreements,
education and training to workers in new jobs with the respective Employers,
Guarantor does hereby, subject to the terms hereof, covenant and agree with
Kirkwood as follows:
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ARTICLE I
REPRESENTATIONS AND WARRANTIES OF GUARANTOR
Guarantor hereby represents and warrants that:
(a) It is a corporation duly organized and in good standing
under the laws of the State of Delaware with authority to do business in the
State of Iowa;
(b) It is not in violation of any provision of its Articles
of Incorporation, as amended, or its Bylaws;
(c) It is not in violation of any law, in any manner
affecting the validity or enforceability of this Guaranty or its financial
ability to perform hereunder;
(d) It has power to enter into this Guaranty, has duly
authorized the execution and delivery of this Guaranty by proper corporate
action and neither this Guaranty nor the agreements herein contained or the
transactions contemplated hereby contravene or constitute a default under any
agreement, instrument or indenture or any provision of its Articles of
Incorporation, as amended, its Bylaws or any other agreement or requirement of
law;
(e) the assumption of the obligations hereunder will result
in a benefit to the Guarantor; and
(f) It has received a copy of the Agreements which the
respective Employers have executed or will (with or without modification)
execute.
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ARTICLE II
COVENANTS AND AGREEMENTS
Section 2.1. Unconditional Guaranty. Guarantor hereby
unconditionally and irrevocably, except upon the mutual agreement of the
Guarantor and Kirkwood and compliance with the requirement of Section 3.2
hereof, guarantees to Kirkwood the prompt and complete performance of all
payments, covenants, agreements and conditions required to be performed by the
respective Employers under the provisions of the Agreements as and when said
payments, covenants, agreements and conditions are therein required to be
performed.
Section 2.2. Notice to Guarantor to Perform Under Guaranty.
If the Revenue Fund, as defined in the Agreements, should at any time fail to
be sufficient to enable Kirkwood to make any of the payments required under the
Agreements and the Resolution as and when said payments become due and payable,
or upon the occurrence of an event of default under the Agreements, the
Guarantor hereby unconditionally covenants that it shall pay to Kirkwood such
sums as the respective Employer is obligated to pay under the Agreements within
the time for making such payments as set forth in a written notice sent to
Guarantor or in the absence of such date specified in the notice within twenty
(20) days of the date of the notice.
Section 2.3. Guaranty to Remain in Force Until Full Payment.
The obligations of Guarantor under this Guaranty shall be absolute,
unconditional and irrevocable and shall remain in full force and effect so long
as the respective Agreements shall be in effect. It being the purpose and
intent of this paragraph that the obligation of Guarantor shall be absolute,
unconditional and irrevocable to the extent herein specified and shall not be
discharged, impaired or varied except upon the payment to Kirkwood from
revenues of the Project, the Employer or the Guarantor all sums necessary to
pay in full the obligations of the respective Employer under the Agreements.
Without limiting any of the other terms or provisions hereof, it is understood
hereunder, there shall be no obligation on the part of Kirkwood to resort in
any manner or form to any other source for payment to Kirkwood or to any other
person, firm or corporation, their properties or estates.
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Section 2.4. Guaranty to Remain in Force Notwithstanding
Happening of Events. The obligation of the Guarantor under this Guaranty shall
not be affected, modified, impaired, or released upon the happening from time
to time of any event, including without limitation, any of the following,
whether or not with notice to, or the consent of Guarantor:
(a) any amendment of the Agreements;
(b) any failure to give notice to Guarantor of the
occurrence of an Event of Default under the Agreements;
(c) the unavailability in whole or in part, for any reason,
of the funds contemplated by Section 2.2 or Article VII of the Agreements;
(d) the waiver of any payment, covenant, agreement or
condition required to be performed by Kirkwood under the Agreements; or
(e) any failure, omission, delay or lack on the part of
Kirkwood to enforce, assert or exercise any right, power or remedy conferred on
Kirkwood by the Agreements or the Resolution.
Section 2.5. Right to Proceed Against Guarantor. In the
event of a default in any payment under the terms of the Agreements when and as
the same shall become due, Kirkwood may proceed hereunder and Kirkwood, in its
sole discretion, shall have the right to proceed first and directly against
Guarantor under this Guaranty without proceeding against or exhausting any
other remedies which it may have and without resorting to any other security
held by Kirkwood.
Section 2.6. Maintenance of Corporate Existence; Merger or
Sale of Assets. During the existence of this Guaranty, Guarantor agrees that it
will maintain its corporate existence and will not dispose of all or
substantially all of its assets nor consolidate with nor merge into another
corporation unless any such corporation with which Guarantor shall consolidate
or into which Guarantor shall merge shall be a corporation organized and
existing
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under the laws of one of the states of the United States of America; shall have
a net worth (computed in accordance with generally accepted accounting
principles) immediately subsequent to such acquisition, consolidation or merger
at least equal to that of Guarantor immediately prior to such acquisition,
consolidation or merger; and shall assume in writing all of the obligations of
Guarantor hereunder.
Section 2.7. Consent to Jurisdiction and Venue. Guarantor
irrevocably, so long as this Guaranty is in force, (a) agrees that any suit,
action or other legal proceeding arising out of this Guaranty may be brought in
any district court of the State of Iowa or the courts of the United States
located in the State of Iowa, (b) consents to the personal jurisdiction of each
such court in any such suit, action or proceeding, and (c) waives any objection
as to venue of any suit, action or proceeding in any of such courts.
ARTICLE III
MISCELLANEOUS
Section 3.1. Obligations Absolute and Unconditional. The
obligations of Guarantor hereunder shall arise absolutely, unconditionally and
irrevocably, upon acceptance hereof by Kirkwood without regard to whether the
Guarantor has received notice of the execution of the Agreements by the
Employer or Kirkwood, or notice of acceptance, by Kirkwood, of this Guaranty.
Section 3.2. Nonexclusive Remedy; Notice; Waiver; Amendment.
No remedy herein conferred upon or reserved to Kirkwood is intended to be
exclusive of any other available remedy or remedies, but each and every such
remedy shall be cumulative and shall be in addition to every other remedy given
under this Guaranty or now or hereafter existing at law or in equity. No delay
or omission to exercise any right or power accruing upon any default, omission
or failure of performance hereunder shall impair any such right or power or
shall be construed to be a waiver thereof. No waiver, amendment, release or
modification of this Guaranty shall be established by conduct, custom or course
of dealing, but solely by an instrument in writing duly executed by Kirkwood.
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Section 3.3. Annual Audit and Financial Statements. The
Guarantor will keep proper books of record and account in accordance with
generally accepted principles of accounting and will furnish to Kirkwood upon
request copies of all quarterly and other interim financial statements as the
Guarantor shall furnish to its stockholders.
Section 3.4. Severability. The invalidity or
unenforceability of any one or more phrases, sentences, clauses or Sections in
this Guaranty shall not affect the validity or enforceability of the remaining
portions of this Guaranty, or any part thereof.
Section 3.5. Release. Upon completion of all obligations of
the respective Employer under the Agreements, this Guaranty shall by its terms
terminate and, upon request by Guarantor, Kirkwood shall release Guarantor from
the provisions of this Guaranty in writing.
Section 3.6. Binding Upon Successors, Heirs and Assigns.
This Guaranty shall inure to the benefit of the successors or assigns of
Kirkwood and shall be binding on the successors, assigns, and legal
representatives of the Guarantor.
Section 3.7. Applicable Law. This Guaranty shall be
governed by and construed in accordance with the laws of the State of Iowa.
IN WITNESS WHEREOF, Guarantor has caused this Guaranty to be
executed as of the date first above written.
XXXXXX, INC.
By /s/ XXXXXXX X. XXXX
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Xxxxxxx X. Xxxx
President and Chief Operating Officer
ATTEST:
/s/ XXXXX X. XXXXX
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Xxxxx X. Xxxxx
Secretary
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