UNCONDITIONAL GUARANTY
================================================================================
FOR VALUE RECEIVED, and in order to induce XXXXXXX XXXXX BUSINESS FINANCIAL
SERVICES INC. ("MLBFS") to advance moneys or extend or continue to extend credit
or lease property to or for the benefit of, or modify its credit relationship
with, or enter into any other financial accommodations with XXXXXXX EDUCATION
GROUP, INC. D/B/A XXXXXXX EDUCATION GROUP AND F/K/A XXXXXXX MEDICAL CORPORATION,
a corporation organized and existing under the laws of the State of Florida
(with any successor in interest, including, without limitation, any successor by
merger or by operation of law, herein collectively referred to as "Customer")
under: (a) that certain TERM LOAN AND SECURITY AGREEMENT No. 0103551501 between
MLBFS and Customer; (collectively, the "Loan Agreement"); (b) any "Additional
Agreements", as that term is defined in the Loan Agreements; and (c) all present
and future amendments, restatements, supplements and other evidences of any
extensions, increases, renewals, modifications and other changes of or to the
Loan Agreements or any Additional Agreements (collectively, the "Guaranteed
Documents"), and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the undersigned, ULTRASOUND
TECHNICAL SERVICES, INC. D/B/A ULTRASOUND DIAGNOSTIC SCHOOLS, a corporation
organized and existing under the laws of the State of New York ("Guarantor"),
hereby unconditionally guarantees to MLBFS: (i) the prompt and full payment when
due, by acceleration or otherwise, of all sums now or any time hereafter due
from Customer to MLBFS under the Guaranteed Documents, (ii) the prompt, full and
faithful performance and discharge by Customer of each and every other covenant
and warranty of Customer set forth in the Guaranteed Documents, and (iii) the
prompt and full payment and performance of all other indebtedness, liabilities
and obligations of Customer to MLBFS, howsoever created or evidenced, and
whether now existing or hereafter arising (collectively, the "Obligations").
Guarantor further agrees to pay all reasonable costs and expenses (including,
but not limited to, court costs and reasonable attorneys' fees) paid or incurred
by MLBFS in endeavoring to collect or enforce performance of any of the
Obligations, or in enforcing this Guaranty. Guarantor acknowledges that MLBFS is
relying on the execution and delivery of this Guaranty in advancing moneys to or
extending or continuing to extend credit to or for the benefit of Customer.
This Guaranty is absolute, unconditional and continuing and shall remain in
effect until all of the Obligations shall have been fully and indefeasibly paid,
performed and discharged. Upon the occurrence and during the continuance of any
default or Event of Default under any of the Guaranteed Documents, any or all of
the indebtedness hereby guaranteed then existing shall, at the option of MLBFS,
become immediately due and payable from Guarantor (it being understood, however,
that upon the occurrence of any "Bankruptcy Event", as defined in the Loan
Agreements, all such indebtedness shall automatically become due and payable
without action on the part of MLBFS). Notwithstanding the occurrence of any such
event, this Guaranty shall continue and remain in full force and effect. To the
extent MLBFS receives payment with respect to the Obligations, and all or any
part of such payment is subsequently invalidated, declared to be fraudulent or
preferential, set aside, required to be repaid by MLBFS or is repaid by MLBFS
pursuant to a settlement agreement, to a trustee, receiver or any other person
or entity, whether under any Bankruptcy law or otherwise (a "Returned Payment"),
this Guaranty shall continue to be effective or shall be reinstated, as the case
may be, to the extent of such payment or repayment by MLBFS, and the
indebtedness or part thereof intended to be satisfied by such Returned Payment
shall be revived and continued in full force and effect as if said Returned
Payment had not been made.
The liability of Guarantor hereunder shall in no event be affected or
impaired by any of the following, any of which may be done or omitted by MLBFS
from time to time, without notice to or the consent of Guarantor: (a) any
renewals, amendments, restatements, modifications or supplements of or to any of
the Guaranteed Documents, or any extensions, forbearances, compromises or
releases of any of the Obligations or any of MLBFS' rights under any of the
Guaranteed Documents; (b) any acceptance by MLBFS of any collateral or security
for, or other guarantees of, any of the Obligations; (c) any failure, neglect or
omission on the part of MLBFS to realize upon or protect any of the Obligations,
or any collateral or security therefor, or to exercise any lien upon or right of
appropriation of any moneys, credits or property of Customer or any other
guarantor, possessed by or under the control of MLBFS or any of its affiliates,
toward the liquidation or reduction of the Obligations; (d) any invalidity,
irregularity or unenforceability of all or any part of the Obligations, of any
collateral security for the Obligations, or the Guaranteed Documents; (e) any
application of payments or credits by MLBFS; (f) the granting of credit from
time to time by MLBFS to Customer in excess of the amount set forth in the
Guaranteed Documents; or (g) any other act of commission or omission of any kind
or at any time upon the part of MLBFS or any of its affiliates or any of their
respective employees or agents with respect to any matter whatsoever. MLBFS
shall not be required at any time, as a condition of Guarantor's obligations
hereunder, to resort to payment from Customer or other persons or entities
whatsoever, or any of their properties or estates, or resort to any collateral
or pursue or exhaust any other rights or remedies whatsoever.
No release or discharge in whole or in part of any other guarantor of the
Obligations shall release or discharge Guarantor unless and until all of the
Obligations shall have been indefeasibly fully paid and discharged. Guarantor
expressly waives presentment, protest, demand, notice of dishonor or default,
notice of acceptance of this Guaranty, notice of advancement of funds under the
Guaranteed Documents and all other notices and formalities to which Customer or
Guarantor might be entitled, by statute or otherwise, and, so long as there are
any Obligations or MLBFS is committed to extend credit to Customer, waives any
right to revoke or terminate this Guaranty without the express written consent
of MLBFS.
So long as there are any Obligations, Guarantor shall not have any claim,
remedy or right of subrogation, reimbursement, exoneration, contribution,
indemnification, or participation in any claim, right, or remedy of MLBFS
against Customer or any security which MLBFS now has or hereafter acquires,
whether or not such claim, right or remedy arises in equity, under contract, by
statute, under common law, or otherwise.
MLBFS is hereby irrevocably authorized by Guarantor at any time during the
continuance of an Event of Default under any of the Loan Agreements or any other
of the Guaranteed Documents or in respect of any of the Obligations, in its sole
discretion and without demand or notice of any kind, to appropriate, hold, set
off and apply toward the payment of any amount due hereunder, in such order of
application as MLBFS may elect, all cash, credits, deposits, accounts, financial
assets, investment property, securities and any other property of Guarantor
which is in transit to or in the possession, custody or control of MLBFS or
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated ("MLPF&S"), or any of their
respective agents, bailees or affiliates. Guarantor hereby collaterally assigns
and grants to MLBFS a continuing security interest in all such property as
additional security for the Obligations. Upon the occurrence and during the
continuance of an Event of Default, MLBFS shall have all rights in such property
available to collateral assignees and secured parties under all applicable laws,
including, without limitation, the Uniform Commercial Code.
Guarantor agrees to furnish to MLBFS such financial information concerning
Guarantor as may be required by any of the Guaranteed Documents or as MLBFS may
otherwise from time to time reasonably request. Guarantor further hereby
irrevocably authorizes MLBFS and each of its affiliates, including without
limitation MLPF&S, to at any time (whether or not an Event of Default shall have
occurred) obtain from and disclose to each other any and all financial and other
information about Guarantor.
No delay on the part of MLBFS in the exercise of any right or remedy under
any of the Guaranteed Documents, this Guaranty or any other agreement shall
operate as a waiver thereof, and, without limiting the foregoing, no delay in
the enforcement of any security interest, and no single or partial exercise by
MLBFS of any right or remedy shall preclude any other or further exercise
thereof or the exercise of any other right or remedy. This Guaranty may be
executed in any number of counterparts, each of which counterparts, once they
are executed and delivered, shall be deemed to be an original and all of which
counterparts, taken together, shall constitute but one and the same Guaranty.
This Guaranty shall be binding upon Guarantor and its successors and assigns,
and shall inure to the benefit of MLBFS and its successors and assigns. If there
are more than one guarantor of the Obligations, all of the obligations and
agreements of Guarantor are joint and several with such other guarantors.
This Guaranty shall be governed by the laws of the State of Illinois.
Without limiting the right of MLBFS to enforce this Guaranty in any jurisdiction
and venue permitted by applicable law: (I) Guarantor agrees that this Guaranty
may at the option of MLBFS be enforced by MLBFS in either the State of Illinois
or in any other jurisdiction where guarantor, customer or any collateral for the
obligations of customer may be located, (ii) guarantor irrevocably submits
itself to jurisdiction in the state of illinois and venue in any state or
federal court in the county of xxxx for such purposes, and (iii) guarantor
waives any and all rights to contest said jurisdiction and venue and the
convenience of any such forum and any and all rights to remove such action from
state to federal court. Guarantor further waives any rights to commence any
action against MLBFS in any jurisdiction except in the County of Xxxx and State
of Illinois. MLBFS and guarantor hereby each expressly waive any and all rights
to a trial by jury in any action, proceeding or counterclaim brought BY either
of the parties against the other party with respect to any matter relating to,
arising out of or in any way connected with this guaranty and/or any of the
transactions which are the subject matter of this guaranty. Guarantor further
waives the right to bring any non-compulsory counterclaims. Wherever possible
each provision of this Guaranty shall be interpreted in such manner as to be
effective and valid under applicable law, but if any provision of this Guaranty
shall be prohibited by or invalid under such law, such provision shall be
ineffective only to the extent of such prohibition or invalidity, without
invalidating the remainder of such provision or the remaining provisions of this
Guaranty. No modification or waiver of any of the provisions of this Guaranty
shall be effective unless in writing and signed by both Guarantor and an officer
of MLBFS. Each signatory on behalf of Guarantor warrants that he or she has
authority to sign on behalf of Guarantor, and by so signing, to bind Guarantor
hereunder.
Dated as of March 21, 2001.
ULTRASOUND TECHNICAL SERVICES, INC. D/B/A ULTRASOUND DIAGNOSTIC SCHOOLS
By: ___________________________________________________________________________
Signature (1) Signature (2)
-------------------------------------------------------------------------------
Printed Name Printed Name
-------------------------------------------------------------------------------
Title Title
Address of Guarantor:
0000 Xxxxxxxx Xxxx, 0xx Xxxxx
Xxxxx, XX 00000
SECRETARY'S CERTIFICATE
================================================================================
(Guaranty by Corporation)
The undersigned hereby certifies to Xxxxxxx Xxxxx Business Financial
Services Inc. that the undersigned is the duly appointed and acting Secretary
(or Assistant Secretary) of ULTRASOUND TECHNICAL SERVICES, INC. D/B/A ULTRASOUND
DIAGNOSTIC SCHOOLS, a corporation duly organized, validly existing and in good
standing under the laws of the State of New York; and that the following is a
true, accurate and compared transcript of resolutions duly, validly and lawfully
adopted on the _______ day of ____________________, 2001 by the Board of
Directors of said Corporation acting in accordance with the laws of the state of
incorporation and the charter and by-laws of said Corporation:
"RESOLVED, that it is advisable and in the best interests and to the
benefit of this Corporation to guaranty the obligations of XXXXXXX EDUCATION
GROUP, INC. D/B/A XXXXXXX EDUCATION GROUP AND F/K/A XXXXXXX MEDICAL CORPORATION
("Customer") to XXXXXXX XXXXX BUSINESS FINANCIAL SERVICES INC. ("MLBFS"); and
"FURTHER RESOLVED, that the President, any Vice President, Treasurer,
Secretary or other officer of this Corporation, or any one or more of them, be
and each of them hereby is authorized and empowered for and on behalf of this
Corporation to: (a) execute and deliver to MLBFS: (i) an Unconditional Guaranty
of the obligations of Customer, (ii) any other agreements, instruments and
documents required by MLBFS in connection therewith, including, without
limitation, any agreements, instruments and documents evidencing liens or
security interests on any of the property of this Corporation as collateral for
said Unconditional Guaranty and/or the obligations of Customer to MLBFS, and
(iii) any present or future amendments to any of the foregoing; all in such form
as such officer shall approve, as evidenced by his signature thereon; and (b) to
do and perform all such acts and things deemed by any such officer to be
necessary or advisable to carry out and perform the undertakings and agreements
of this Corporation set forth therein; and all prior acts of each of said
officers in these premises are hereby ratified and confirmed; and
"FURTHER RESOLVED, that MLBFS is authorized to rely upon the foregoing
resolutions until it receives written notice of any change or revocation from an
authorized officer of this Corporation, which change or revocation shall not in
any event affect the obligations of this Corporation with respect to any
transaction conditionally agreed or committed to by MLBFS or having its
inception prior to the receipt of such notice by MLBFS."
The undersigned further certifies that: (a) the foregoing resolutions have
not been rescinded, modified or repealed in any manner, are not in conflict with
any agreement of said Corporation and are in full force and effect as of the
date of this Certificate, and (b) the following individuals are now the duly
elected and acting officers of said Corporation and the signatures set forth
below are the true signatures of said officers:
President: ____________________________________________________________
Vice President: _______________________________________________________
Treasurer: ____________________________________________________________
Secretary:_____________________________________________________________
-----------------: ----------------------------------------------------
Additional Title
IN WITNESS WHEREOF, the undersigned has executed this Certificate and has
affixed the seal of said corporation hereto, pursuant to due authorization, all
as of this ________ day of _________________, 2001.
(Corporate Seal) ____________________________________________
Secretary
Printed Name: ____________________________________________
UNCONDITIONAL GUARANTY
================================================================================
FOR VALUE RECEIVED, and in order to induce XXXXXXX XXXXX BUSINESS FINANCIAL
SERVICES INC. ("MLBFS") to advance moneys or extend or continue to extend credit
or lease property to or for the benefit of, or modify its credit relationship
with, or enter into any other financial accommodations with XXXXXXX EDUCATION
GROUP, INC. D/B/A XXXXXXX EDUCATION GROUP AND F/K/A XXXXXXX MEDICAL CORPORATION,
a corporation organized and existing under the laws of the State of Florida
(with any successor in interest, including, without limitation, any successor by
merger or by operation of law, herein collectively referred to as "Customer")
under: (a) that certain TERM LOAN AND SECURITY AGREEMENT No. 0103551501 between
MLBFS and Customer; (collectively, the "Loan Agreement"); (b) any "Additional
Agreements", as that term is defined in the Loan Agreements; and (c) all present
and future amendments, restatements, supplements and other evidences of any
extensions, increases, renewals, modifications and other changes of or to the
Loan Agreements or any Additional Agreements (collectively, the "Guaranteed
Documents"), and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the undersigned, XXXXXXX XXXXX
COLLEGE, INC., a corporation organized and existing under the laws of the State
of Delaware ("Guarantor"), hereby unconditionally guarantees to MLBFS: (i) the
prompt and full payment when due, by acceleration or otherwise, of all sums now
or any time hereafter due from Customer to MLBFS under the Guaranteed Documents,
(ii) the prompt, full and faithful performance and discharge by Customer of each
and every other covenant and warranty of Customer set forth in the Guaranteed
Documents, and (iii) the prompt and full payment and performance of all other
indebtedness, liabilities and obligations of Customer to MLBFS, howsoever
created or evidenced, and whether now existing or hereafter arising
(collectively, the "Obligations"). Guarantor further agrees to pay all
reasonable costs and expenses (including, but not limited to, court costs and
reasonable attorneys' fees) paid or incurred by MLBFS in endeavoring to collect
or enforce performance of any of the Obligations, or in enforcing this Guaranty.
Guarantor acknowledges that MLBFS is relying on the execution and delivery of
this Guaranty in advancing moneys to or extending or continuing to extend credit
to or for the benefit of Customer.
This Guaranty is absolute, unconditional and continuing and shall remain in
effect until all of the Obligations shall have been fully and indefeasibly paid,
performed and discharged. Upon the occurrence and during the continuance of any
default or Event of Default under any of the Guaranteed Documents, any or all of
the indebtedness hereby guaranteed then existing shall, at the option of MLBFS,
become immediately due and payable from Guarantor (it being understood, however,
that upon the occurrence of any "Bankruptcy Event", as defined in the Loan
Agreements, all such indebtedness shall automatically become due and payable
without action on the part of MLBFS). Notwithstanding the occurrence of any such
event, this Guaranty shall continue and remain in full force and effect. To the
extent MLBFS receives payment with respect to the Obligations, and all or any
part of such payment is subsequently invalidated, declared to be fraudulent or
preferential, set aside, required to be repaid by MLBFS or is repaid by MLBFS
pursuant to a settlement agreement, to a trustee, receiver or any other person
or entity, whether under any Bankruptcy law or otherwise (a "Returned Payment"),
this Guaranty shall continue to be effective or shall be reinstated, as the case
may be, to the extent of such payment or repayment by MLBFS, and the
indebtedness or part thereof intended to be satisfied by such Returned Payment
shall be revived and continued in full force and effect as if said Returned
Payment had not been made.
The liability of Guarantor hereunder shall in no event be affected or
impaired by any of the following, any of which may be done or omitted by MLBFS
from time to time, without notice to or the consent of Guarantor: (a) any
renewals, amendments, restatements, modifications or supplements of or to any of
the Guaranteed Documents, or any extensions, forbearances, compromises or
releases of any of the Obligations or any of MLBFS' rights under any of the
Guaranteed Documents; (b) any acceptance by MLBFS of any collateral or security
for, or other guarantees of, any of the Obligations; (c) any failure, neglect or
omission on the part of MLBFS to realize upon or protect any of the Obligations,
or any collateral or security therefor, or to exercise any lien upon or right of
appropriation of any moneys, credits or property of Customer or any other
guarantor, possessed by or under the control of MLBFS or any of its affiliates,
toward the liquidation or reduction of the Obligations; (d) any invalidity,
irregularity or unenforceability of all or any part of the Obligations, of any
collateral security for the Obligations, or the Guaranteed Documents; (e) any
application of payments or credits by MLBFS; (f) the granting of credit from
time to time by MLBFS to Customer in excess of the amount set forth in the
Guaranteed Documents; or (g) any other act of commission or omission of any kind
or at any time upon the part of MLBFS or any of its affiliates or any of their
respective employees or agents with respect to any matter whatsoever. MLBFS
shall not be required at any time, as a condition of Guarantor's obligations
hereunder, to resort to payment from Customer or other persons or entities
whatsoever, or any of their properties or estates, or resort to any collateral
or pursue or exhaust any other rights or remedies whatsoever.
No release or discharge in whole or in part of any other guarantor of the
Obligations shall release or discharge Guarantor unless and until all of the
Obligations shall have been indefeasibly fully paid and discharged. Guarantor
expressly waives presentment, protest, demand, notice of dishonor or default,
notice of acceptance of this Guaranty, notice of advancement of funds under the
Guaranteed Documents and all other notices and formalities to which Customer or
Guarantor might be entitled, by statute or otherwise, and, so long as there are
any Obligations or MLBFS is committed to extend credit to Customer, waives any
right to revoke or terminate this Guaranty without the express written consent
of MLBFS.
So long as there are any Obligations, Guarantor shall not have any claim,
remedy or right of subrogation, reimbursement, exoneration, contribution,
indemnification, or participation in any claim, right, or remedy of MLBFS
against Customer or any security which MLBFS now has or hereafter acquires,
whether or not such claim, right or remedy arises in equity, under contract, by
statute, under common law, or otherwise.
MLBFS is hereby irrevocably authorized by Guarantor at any time during the
continuance of an Event of Default under any of the Loan Agreements or any other
of the Guaranteed Documents or in respect of any of the Obligations, in its sole
discretion and without demand or notice of any kind, to appropriate, hold, set
off and apply toward the payment of any amount due hereunder, in such order of
application as MLBFS may elect, all cash, credits, deposits, accounts, financial
assets, investment property, securities and any other property of Guarantor
which is in transit to or in the possession, custody or control of MLBFS or
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated ("MLPF&S"), or any of their
respective agents, bailees or affiliates. Guarantor hereby collaterally assigns
and grants to MLBFS a continuing security interest in all such property as
additional security for the Obligations. Upon the occurrence and during the
continuance of an Event of Default, MLBFS shall have all rights in such property
available to collateral assignees and secured parties under all applicable laws,
including, without limitation, the Uniform Commercial Code.
Guarantor agrees to furnish to MLBFS such financial information concerning
Guarantor as may be required by any of the Guaranteed Documents or as MLBFS may
otherwise from time to time reasonably request. Guarantor further hereby
irrevocably authorizes MLBFS and each of its affiliates, including without
limitation MLPF&S, to at any time (whether or not an Event of Default shall have
occurred) obtain from and disclose to each other any and all financial and other
information about Guarantor.
No delay on the part of MLBFS in the exercise of any right or remedy under
any of the Guaranteed Documents, this Guaranty or any other agreement shall
operate as a waiver thereof, and, without limiting the foregoing, no delay in
the enforcement of any security interest, and no single or partial exercise by
MLBFS of any right or remedy shall preclude any other or further exercise
thereof or the exercise of any other right or remedy. This Guaranty may be
executed in any number of counterparts, each of which counterparts, once they
are executed and delivered, shall be deemed to be an original and all of which
counterparts, taken together, shall constitute but one and the same Guaranty.
This Guaranty shall be binding upon Guarantor and its successors and assigns,
and shall inure to the benefit of MLBFS and its successors and assigns. If there
are more than one guarantor of the Obligations, all of the obligations and
agreements of Guarantor are joint and several with such other guarantors.
This Guaranty shall be governed by the laws of the State of Illinois.
Without limiting the right of MLBFS to enforce this Guaranty in any jurisdiction
and venue permitted by applicable law: (I) Guarantor agrees that this Guaranty
may at the option of MLBFS be enforced by MLBFS in either the State of Illinois
or in any other jurisdiction where guarantor, customer or any collateral for the
obligations of customer may be located, (ii) guarantor irrevocably submits
itself to jurisdiction in the state of illinois and venue in any state or
federal court in the county of xxxx for such purposes, and (iii) guarantor
waives any and all rights to contest said jurisdiction and venue and the
convenience of any such forum and any and all rights to remove such action from
state to federal court. Guarantor further waives any rights to commence any
action against MLBFS in any jurisdiction except in the County of Xxxx and State
of Illinois. MLBFS and guarantor hereby each expressly waive any and all rights
to a trial by jury in any action, proceeding or counterclaim brought BY either
of the parties against the other party with respect to any matter relating to,
arising out of or in any way connected with this guaranty and/or any of the
transactions which are the subject matter of this guaranty. Guarantor further
waives the right to bring any non-compulsory counterclaims. Wherever possible
each provision of this guaranty shall be interpreted in such manner as to be
effective and valid under applicable law, but if any provision of this Guaranty
shall be prohibited by or invalid under such law, such provision shall be
ineffective only to the extent of such prohibition or invalidity, without
invalidating the remainder of such provision or the remaining provisions of this
Guaranty. No modification or waiver of any of the provisions of this Guaranty
shall be effective unless in writing and signed by both Guarantor and an officer
of MLBFS. Each signatory on behalf of Guarantor warrants that he or she has
authority to sign on behalf of Guarantor, and by so signing, to bind Guarantor
hereunder.
Dated as of March 21, 2001.
XXXXXXX XXXXX COLLEGE, INC.
By: ____________________________________________________________________________
Signature (2) Signature (2)
--------------------------------------------------------------------------------
Printed Name Printed Name
--------------------------------------------------------------------------------
Title Title
Address of Guarantor:
000 X. 00xx Xxxxxx
Xxxxx Xxxxxx, XX 00000
SECRETARY'S CERTIFICATE
===============================================================================
================================================================================
(Guaranty by Corporation)
The undersigned hereby certifies to Xxxxxxx Xxxxx Business Financial
Services Inc. that the undersigned is the duly appointed and acting Secretary
(or Assistant Secretary) of XXXXXXX XXXXX COLLEGE, INC., a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware; and that the following is a true, accurate and compared transcript of
resolutions duly, validly and lawfully adopted on the _______ day of
____________________, 2001 by the Board of Directors of said Corporation acting
in accordance with the laws of the state of incorporation and the charter and
by-laws of said Corporation:
"RESOLVED, that it is advisable and in the best interests and to the
benefit of this Corporation to guaranty the obligations of XXXXXXX EDUCATION
GROUP, INC. D/B/A XXXXXXX EDUCATION GROUP AND F/K/A XXXXXXX MEDICAL CORPORATION
("Customer") to XXXXXXX XXXXX BUSINESS FINANCIAL SERVICES INC. ("MLBFS"); and
"FURTHER RESOLVED, that the President, any Vice President, Treasurer,
Secretary or other officer of this Corporation, or any one or more of them, be
and each of them hereby is authorized and empowered for and on behalf of this
Corporation to: (a) execute and deliver to MLBFS: (i) an Unconditional Guaranty
of the obligations of Customer, (ii) any other agreements, instruments and
documents required by MLBFS in connection therewith, including, without
limitation, any agreements, instruments and documents evidencing liens or
security interests on any of the property of this Corporation as collateral for
said Unconditional Guaranty and/or the obligations of Customer to MLBFS, and
(iii) any present or future amendments to any of the foregoing; all in such form
as such officer shall approve, as evidenced by his signature thereon; and (b) to
do and perform all such acts and things deemed by any such officer to be
necessary or advisable to carry out and perform the undertakings and agreements
of this Corporation set forth therein; and all prior acts of each of said
officers in these premises are hereby ratified and confirmed; and
"FURTHER RESOLVED, that MLBFS is authorized to rely upon the foregoing
resolutions until it receives written notice of any change or revocation from an
authorized officer of this Corporation, which change or revocation shall not in
any event affect the obligations of this Corporation with respect to any
transaction conditionally agreed or committed to by MLBFS or having its
inception prior to the receipt of such notice by MLBFS."
The undersigned further certifies that: (a) the foregoing resolutions have
not been rescinded, modified or repealed in any manner, are not in conflict with
any agreement of said Corporation and are in full force and effect as of the
date of this Certificate, and (b) the following individuals are now the duly
elected and acting officers of said Corporation and the signatures set forth
below are the true signatures of said officers:
President: ____________________________________________________________
Vice President: _______________________________________________________
Treasurer: ____________________________________________________________
Secretary:_____________________________________________________________
-----------------: ----------------------------------------------------
Additional Title
IN WITNESS WHEREOF, the undersigned has executed this Certificate and has
affixed the seal of said corporation hereto, pursuant to due authorization, all
as of this ________ day of _________________, 2001.
(Corporate Seal) ____________________________________________
Secretary
Printed Name: ____________________________________________
UNCONDITIONAL GUARANTY
================================================================================
FOR VALUE RECEIVED, and in order to induce XXXXXXX XXXXX BUSINESS FINANCIAL
SERVICES INC. ("MLBFS") to advance moneys or extend or continue to extend credit
or lease property to or for the benefit of, or modify its credit relationship
with, or enter into any other financial accommodations with XXXXXXX EDUCATION
GROUP, INC. D/B/A XXXXXXX EDUCATION GROUP AND F/K/A XXXXXXX MEDICAL CORPORATION,
a corporation organized and existing under the laws of the State of Florida
(with any successor in interest, including, without limitation, any successor by
merger or by operation of law, herein collectively referred to as "Customer")
under: (a) that certain TERM LOAN AND SECURITY AGREEMENT No. 0103551501 between
MLBFS and Customer, (collectively, the "Loan Agreement"); (b) any "Additional
Agreements", as that term is defined in the Loan Agreements; and (c) all present
and future amendments, restatements, supplements and other evidences of any
extensions, increases, renewals, modifications and other changes of or to the
Loan Agreements or any Additional Agreements (collectively, the "Guaranteed
Documents"), and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the undersigned, COLORADO TECHNICAL
UNIVERSITY, INC. D/B/A COLORADO TECHNICAL UNIVERSITY, a corporation organized
and existing under the laws of the State of Colorado ("Guarantor"), hereby
unconditionally guarantees to MLBFS: (i) the prompt and full payment when due,
by acceleration or otherwise, of all sums now or any time hereafter due from
Customer to MLBFS under the Guaranteed Documents, (ii) the prompt, full and
faithful performance and discharge by Customer of each and every other covenant
and warranty of Customer set forth in the Guaranteed Documents, and (iii) the
prompt and full payment and performance of all other indebtedness, liabilities
and obligations of Customer to MLBFS, howsoever created or evidenced, and
whether now existing or hereafter arising (collectively, the "Obligations").
Guarantor further agrees to pay all reasonable costs and expenses (including,
but not limited to, court costs and reasonable attorneys' fees) paid or incurred
by MLBFS in endeavoring to collect or enforce performance of any of the
Obligations, or in enforcing this Guaranty. Guarantor acknowledges that MLBFS is
relying on the execution and delivery of this Guaranty in advancing moneys to or
extending or continuing to extend credit to or for the benefit of Customer.
This Guaranty is absolute, unconditional and continuing and shall remain in
effect until all of the Obligations shall have been fully and indefeasibly paid,
performed and discharged. Upon the occurrence and during the continuance of any
default or Event of Default under any of the Guaranteed Documents, any or all of
the indebtedness hereby guaranteed then existing shall, at the option of MLBFS,
become immediately due and payable from Guarantor (it being understood, however,
that upon the occurrence of any "Bankruptcy Event", as defined in the Loan
Agreements, all such indebtedness shall automatically become due and payable
without action on the part of MLBFS). Notwithstanding the occurrence of any such
event, this Guaranty shall continue and remain in full force and effect. To the
extent MLBFS receives payment with respect to the Obligations, and all or any
part of such payment is subsequently invalidated, declared to be fraudulent or
preferential, set aside, required to be repaid by MLBFS or is repaid by MLBFS
pursuant to a settlement agreement, to a trustee, receiver or any other person
or entity, whether under any Bankruptcy law or otherwise (a "Returned Payment"),
this Guaranty shall continue to be effective or shall be reinstated, as the case
may be, to the extent of such payment or repayment by MLBFS, and the
indebtedness or part thereof intended to be satisfied by such Returned Payment
shall be revived and continued in full force and effect as if said Returned
Payment had not been made.
The liability of Guarantor hereunder shall in no event be affected or
impaired by any of the following, any of which may be done or omitted by MLBFS
from time to time, without notice to or the consent of Guarantor: (a) any
renewals, amendments, restatements, modifications or supplements of or to any of
the Guaranteed Documents, or any extensions, forbearances, compromises or
releases of any of the Obligations or any of MLBFS' rights under any of the
Guaranteed Documents; (b) any acceptance by MLBFS of any collateral or security
for, or other guarantees of, any of the Obligations; (c) any failure, neglect or
omission on the part of MLBFS to realize upon or protect any of the Obligations,
or any collateral or security therefor, or to exercise any lien upon or right of
appropriation of any moneys, credits or property of Customer or any other
guarantor, possessed by or under the control of MLBFS or any of its affiliates,
toward the liquidation or reduction of the Obligations; (d) any invalidity,
irregularity or unenforceability of all or any part of the Obligations, of any
collateral security for the Obligations, or the Guaranteed Documents; (e) any
application of payments or credits by MLBFS; (f) the granting of credit from
time to time by MLBFS to Customer in excess of the amount set forth in the
Guaranteed Documents; or (g) any other act of commission or omission of any kind
or at any time upon the part of MLBFS or any of its affiliates or any of their
respective employees or agents with respect to any matter whatsoever. MLBFS
shall not be required at any time, as a condition of Guarantor's obligations
hereunder, to resort to payment from Customer or other persons or entities
whatsoever, or any of their properties or estates, or resort to any collateral
or pursue or exhaust any other rights or remedies whatsoever.
No release or discharge in whole or in part of any other guarantor of the
Obligations shall release or discharge Guarantor unless and until all of the
Obligations shall have been indefeasibly fully paid and discharged. Guarantor
expressly waives presentment, protest, demand, notice of dishonor or default,
notice of acceptance of this Guaranty, notice of advancement of funds under the
Guaranteed Documents and all other notices and formalities to which Customer or
Guarantor might be entitled, by statute or otherwise, and, so long as there are
any Obligations or MLBFS is committed to extend credit to Customer, waives any
right to revoke or terminate this Guaranty without the express written consent
of MLBFS.
So long as there are any Obligations, Guarantor shall not have any claim,
remedy or right of subrogation, reimbursement, exoneration, contribution,
indemnification, or participation in any claim, right, or remedy of MLBFS
against Customer or any security which MLBFS now has or hereafter acquires,
whether or not such claim, right or remedy arises in equity, under contract, by
statute, under common law, or otherwise.
MLBFS is hereby irrevocably authorized by Guarantor at any time during the
continuance of an Event of Default under the Loan Agreement or any other of the
Guaranteed Documents or in respect of any of the Obligations, in its sole
discretion and without demand or notice of any kind, to appropriate, hold, set
off and apply toward the payment of any amount due hereunder, in such order of
application as MLBFS may elect, all cash, credits, deposits, accounts, financial
assets, investment property, securities and any other property of Guarantor
which is in transit to or in the possession, custody or control of MLBFS or
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated ("MLPF&S"), or any of their
respective agents, bailees or affiliates. Guarantor hereby collaterally assigns
and grants to MLBFS a continuing security interest in all such property as
additional security for the Obligations. Upon the occurrence and during the
continuance of an Event of Default, MLBFS shall have all rights in such property
available to collateral assignees and secured parties under all applicable laws,
including, without limitation, the Uniform Commercial Code.
Guarantor agrees to furnish to MLBFS such financial information concerning
Guarantor as may be required by any of the Guaranteed Documents or as MLBFS may
otherwise from time to time reasonably request. Guarantor further hereby
irrevocably authorizes MLBFS and each of its affiliates, including without
limitation MLPF&S, to at any time (whether or not an Event of Default shall have
occurred) obtain from and disclose to each other any and all financial and other
information about Guarantor.
No delay on the part of MLBFS in the exercise of any right or remedy under
any of the Guaranteed Documents, this Guaranty or any other agreement shall
operate as a waiver thereof, and, without limiting the foregoing, no delay in
the enforcement of any security interest, and no single or partial exercise by
MLBFS of any right or remedy shall preclude any other or further exercise
thereof or the exercise of any other right or remedy. This Guaranty may be
executed in any number of counterparts, each of which counterparts, once they
are executed and delivered, shall be deemed to be an original and all of which
counterparts, taken together, shall constitute but one and the same Guaranty.
This Guaranty shall be binding upon Guarantor and its successors and assigns,
and shall inure to the benefit of MLBFS and its successors and assigns. If there
are more than one guarantor of the Obligations, all of the obligations and
agreements of Guarantor are joint and several with such other guarantors.
This Guaranty shall be governed by the laws of the State of Illinois.
Without limiting the right of MLBFS to enforce this Guaranty in any jurisdiction
and venue permitted by applicable law: (i) Guarantor agrees that this Guaranty
may at the option of MLBFS be enforced by MLBFS in either the State of Illinois
or in any other jurisdiction where guarantor, customer or any collateral for the
obligations of customer may be located, (ii) guarantor irrevocably submits
itself to jurisdiction in the state of illinois and venue in any state or
federal court in the county of xxxx for such purposes, and (iii) guarantor
waives any and all rights to contest said jurisdiction and venue and the
convenience of any such forum and any and all rights to remove such action from
state to federal court. Guarantor further waives any rights to commence any
action against MLBFS in any jurisdiction except in the County of Xxxx and State
of Illinois. MLBFS and guarantor hereby each expressly waive any and all rights
to a trial by jury in any action, proceeding or counterclaim brought BY either
of the parties against the other party with respect to any matter relating to,
arising out of or in any way connected with this guaranty and/or any of the
transactions which are the subject matter of this guaranty. Guarantor further
waives the right to bring any non-compulsory counterclaims. Wherever possible
each provision of this Guaranty shall be interpreted in such manner as to be
effective and valid under applicable law, but if any provision of this Guaranty
shall be prohibited by or invalid under such law, such provision shall be
ineffective only to the extent of such prohibition or invalidity, without
invalidating the remainder of such provision or the remaining provisions of this
Guaranty. No modification or waiver of any of the provisions of this Guaranty
shall be effective unless in writing and signed by both Guarantor and an officer
of MLBFS. Each signatory on behalf of Guarantor warrants that he or she has
authority to sign on behalf of Guarantor, and by so signing, to bind Guarantor
hereunder.
Dated as of March 21, 2001.
COLORADO TECHNICAL UNIVERSITY, INC. D/B/A COLORADO TECHNICAL UNIVERSITY
By: ____________________________________________________________________________
Signature (3) Signature (2)
--------------------------------------------------------------------------------
Printed Name Printed Name
--------------------------------------------------------------------------------
Title Title
Address of Guarantor:
0000 X. Xxxxxxxx Xxxxxx
Xxxxxxxx Xxxxxxx, XX 00000
SECRETARY'S CERTIFICATE
================================================================================
(Guaranty by Corporation)
The undersigned hereby certifies to Xxxxxxx Xxxxx Business Financial
Services Inc. that the undersigned is the duly appointed and acting Secretary
(or Assistant Secretary) of COLORADO TECHNICAL UNIVERSITY, INC. D/B/A COLORADO
TECHNICAL UNIVERSITY, a corporation duly organized, validly existing and in good
standing under the laws of the State of Colorado; and that the following is a
true, accurate and compared transcript of resolutions duly, validly and lawfully
adopted on the _______ day of ____________________, 2001 by the Board of
Directors of said Corporation acting in accordance with the laws of the state of
incorporation and the charter and by-laws of said Corporation:
"RESOLVED, that it is advisable and in the best interests and to the
benefit of this Corporation to guaranty the obligations of XXXXXXX EDUCATION
GROUP, INC. D/B/A XXXXXXX EDUCATION GROUP AND F/K/A XXXXXXX MEDICAL CORPORATION
("Customer") to XXXXXXX XXXXX BUSINESS FINANCIAL SERVICES INC. ("MLBFS"); and
"FURTHER RESOLVED, that the President, any Vice President, Treasurer,
Secretary or other officer of this Corporation, or any one or more of them, be
and each of them hereby is authorized and empowered for and on behalf of this
Corporation to: (a) execute and deliver to MLBFS: (i) an Unconditional Guaranty
of the obligations of Customer, (ii) any other agreements, instruments and
documents required by MLBFS in connection therewith, including, without
limitation, any agreements, instruments and documents evidencing liens or
security interests on any of the property of this Corporation as collateral for
said Unconditional Guaranty and/or the obligations of Customer to MLBFS, and
(iii) any present or future amendments to any of the foregoing; all in such form
as such officer shall approve, as evidenced by his signature thereon; and (b) to
do and perform all such acts and things deemed by any such officer to be
necessary or advisable to carry out and perform the undertakings and agreements
of this Corporation set forth therein; and all prior acts of each of said
officers in these premises are hereby ratified and confirmed; and
"FURTHER RESOLVED, that MLBFS is authorized to rely upon the foregoing
resolutions until it receives written notice of any change or revocation from an
authorized officer of this Corporation, which change or revocation shall not in
any event affect the obligations of this Corporation with respect to any
transaction conditionally agreed or committed to by MLBFS or having its
inception prior to the receipt of such notice by MLBFS."
The undersigned further certifies that: (a) the foregoing resolutions have
not been rescinded, modified or repealed in any manner, are not in conflict with
any agreement of said Corporation and are in full force and effect as of the
date of this Certificate, and (b) the following individuals are now the duly
elected and acting officers of said Corporation and the signatures set forth
below are the true signatures of said officers:
President: ____________________________________________________________
Vice President: _______________________________________________________
Treasurer: ____________________________________________________________
Secretary:_____________________________________________________________
-----------------: ----------------------------------------------------
Additional Title
IN WITNESS WHEREOF, the undersigned has executed this Certificate and has
affixed the seal of said corporation hereto, pursuant to due authorization, all
as of this ________ day of _________________, 2001.
(Corporate Seal) ____________________________________________
Secretary
Printed Name: ____________________________________________
UNCONDITIONAL GUARANTY
================================================================================
FOR VALUE RECEIVED, and in order to induce XXXXXXX XXXXX BUSINESS FINANCIAL
SERVICES INC. ("MLBFS") to advance moneys or extend or continue to extend credit
or lease property to or for the benefit of, or modify its credit relationship
with, or enter into any other financial accommodations with XXXXXXX EDUCATION
GROUP, INC. D/B/A XXXXXXX EDUCATION GROUP AND F/K/A XXXXXXX MEDICAL CORPORATION,
a corporation organized and existing under the laws of the State of Florida
(with any successor in interest, including, without limitation, any successor by
merger or by operation of law, herein collectively referred to as "Customer")
under: (a) that certain TERM LOAN AND SECURITY AGREEMENT No. 0103551501 between
MLBFS and Customer; (collectively, the "Loan Agreement"); (b) any "Additional
Agreements", as that term is defined in the Loan Agreements; and (c) all present
and future amendments, restatements, supplements and other evidences of any
extensions, increases, renewals, modifications and other changes of or to the
Loan Agreements or any Additional Agreements (collectively, the "Guaranteed
Documents"), and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the undersigned, CTU CORPORATION
F/K/A M.D.J.B. INC., a corporation organized and existing under the laws of the
State of Delaware ("Guarantor"), hereby unconditionally guarantees to MLBFS: (i)
the prompt and full payment when due, by acceleration or otherwise, of all sums
now or any time hereafter due from Customer to MLBFS under the Guaranteed
Documents, (ii) the prompt, full and faithful performance and discharge by
Customer of each and every other covenant and warranty of Customer set forth in
the Guaranteed Documents, and (iii) the prompt and full payment and performance
of all other indebtedness, liabilities and obligations of Customer to MLBFS,
howsoever created or evidenced, and whether now existing or hereafter arising
(collectively, the "Obligations"). Guarantor further agrees to pay all
reasonable costs and expenses (including, but not limited to, court costs and
reasonable attorneys' fees) paid or incurred by MLBFS in endeavoring to collect
or enforce performance of any of the Obligations, or in enforcing this Guaranty.
Guarantor acknowledges that MLBFS is relying on the execution and delivery of
this Guaranty in advancing moneys to or extending or continuing to extend credit
to or for the benefit of Customer.
This Guaranty is absolute, unconditional and continuing and shall remain in
effect until all of the Obligations shall have been fully and indefeasibly paid,
performed and discharged. Upon the occurrence and during the continuance of any
default or Event of Default under any of the Guaranteed Documents, any or all of
the indebtedness hereby guaranteed then existing shall, at the option of MLBFS,
become immediately due and payable from Guarantor (it being understood, however,
that upon the occurrence of any "Bankruptcy Event", as defined in the Loan
Agreements, all such indebtedness shall automatically become due and payable
without action on the part of MLBFS). Notwithstanding the occurrence of any such
event, this Guaranty shall continue and remain in full force and effect. To the
extent MLBFS receives payment with respect to the Obligations, and all or any
part of such payment is subsequently invalidated, declared to be fraudulent or
preferential, set aside, required to be repaid by MLBFS or is repaid by MLBFS
pursuant to a settlement agreement, to a trustee, receiver or any other person
or entity, whether under any Bankruptcy law or otherwise (a "Returned Payment"),
this Guaranty shall continue to be effective or shall be reinstated, as the case
may be, to the extent of such payment or repayment by MLBFS, and the
indebtedness or part thereof intended to be satisfied by such Returned Payment
shall be revived and continued in full force and effect as if said Returned
Payment had not been made.
The liability of Guarantor hereunder shall in no event be affected or
impaired by any of the following, any of which may be done or omitted by MLBFS
from time to time, without notice to or the consent of Guarantor: (a) any
renewals, amendments, restatements, modifications or supplements of or to any of
the Guaranteed Documents, or any extensions, forbearances, compromises or
releases of any of the Obligations or any of MLBFS' rights under any of the
Guaranteed Documents; (b) any acceptance by MLBFS of any collateral or security
for, or other guarantees of, any of the Obligations; (c) any failure, neglect or
omission on the part of MLBFS to realize upon or protect any of the Obligations,
or any collateral or security therefor, or to exercise any lien upon or right of
appropriation of any moneys, credits or property of Customer or any other
guarantor, possessed by or under the control of MLBFS or any of its affiliates,
toward the liquidation or reduction of the Obligations; (d) any invalidity,
irregularity or unenforceability of all or any part of the Obligations, of any
collateral security for the Obligations, or the Guaranteed Documents; (e) any
application of payments or credits by MLBFS; (f) the granting of credit from
time to time by MLBFS to Customer in excess of the amount set forth in the
Guaranteed Documents; or (g) any other act of commission or omission of any kind
or at any time upon the part of MLBFS or any of its affiliates or any of their
respective employees or agents with respect to any matter whatsoever. MLBFS
shall not be required at any time, as a condition of Guarantor's obligations
hereunder, to resort to payment from Customer or other persons or entities
whatsoever, or any of their properties or estates, or resort to any collateral
or pursue or exhaust any other rights or remedies whatsoever.
No release or discharge in whole or in part of any other guarantor of the
Obligations shall release or discharge Guarantor unless and until all of the
Obligations shall have been indefeasibly fully paid and discharged. Guarantor
expressly waives presentment, protest, demand, notice of dishonor or default,
notice of acceptance of this Guaranty, notice of advancement of funds under the
Guaranteed Documents and all other notices and formalities to which Customer or
Guarantor might be entitled, by statute or otherwise, and, so long as there are
any Obligations or MLBFS is committed to extend credit to Customer, waives any
right to revoke or terminate this Guaranty without the express written consent
of MLBFS.
So long as there are any Obligations, Guarantor shall not have any claim,
remedy or right of subrogation, reimbursement, exoneration, contribution,
indemnification, or participation in any claim, right, or remedy of MLBFS
against Customer or any security which MLBFS now has or hereafter acquires,
whether or not such claim, right or remedy arises in equity, under contract, by
statute, under common law, or otherwise.
MLBFS is hereby irrevocably authorized by Guarantor at any time during the
continuance of an Event of Default under any of the Loan Agreements or any other
of the Guaranteed Documents or in respect of any of the Obligations, in its sole
discretion and without demand or notice of any kind, to appropriate, hold, set
off and apply toward the payment of any amount due hereunder, in such order of
application as MLBFS may elect, all cash, credits, deposits, accounts, financial
assets, investment property, securities and any other property of Guarantor
which is in transit to or in the possession, custody or control of MLBFS or
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated ("MLPF&S"), or any of their
respective agents, bailees or affiliates. Guarantor hereby collaterally assigns
and grants to MLBFS a continuing security interest in all such property as
additional security for the Obligations. Upon the occurrence and during the
continuance of an Event of Default, MLBFS shall have all rights in such property
available to collateral assignees and secured parties under all applicable laws,
including, without limitation, the Uniform Commercial Code.
Guarantor agrees to furnish to MLBFS such financial information concerning
Guarantor as may be required by any of the Guaranteed Documents or as MLBFS may
otherwise from time to time reasonably request. Guarantor further hereby
irrevocably authorizes MLBFS and each of its affiliates, including without
limitation MLPF&S, to at any time (whether or not an Event of Default shall have
occurred) obtain from and disclose to each other any and all financial and other
information about Guarantor.
No delay on the part of MLBFS in the exercise of any right or remedy under
any of the Guaranteed Documents, this Guaranty or any other agreement shall
operate as a waiver thereof, and, without limiting the foregoing, no delay in
the enforcement of any security interest, and no single or partial exercise by
MLBFS of any right or remedy shall preclude any other or further exercise
thereof or the exercise of any other right or remedy. This Guaranty may be
executed in any number of counterparts, each of which counterparts, once they
are executed and delivered, shall be deemed to be an original and all of which
counterparts, taken together, shall constitute but one and the same Guaranty.
This Guaranty shall be binding upon Guarantor and its successors and assigns,
and shall inure to the benefit of MLBFS and its successors and assigns. If there
are more than one guarantor of the Obligations, all of the obligations and
agreements of Guarantor are joint and several with such other guarantors.
This Guaranty shall be governed by the laws of the State of Illinois.
Without limiting the right of MLBFS to enforce this Guaranty in any jurisdiction
and venue permitted by applicable law: (I) Guarantor agrees that this Guaranty
may at the option of MLBFS be enforced by MLBFS in either the State of Illinois
or in any other jurisdiction where GUARANTOR, Customer or any collateral for the
Obligations OF CUSTOMER may be located, (ii) GUARANTOR IRREVOCABLY SUBMITS
ITSELF to jurisdiction in the State of Illinois and venue in any State or
Federal Court in the County of Xxxx for such purposes, and (iii) GUARANTOR
waives any and all rights to contest said jurisdiction and venue AND THE
CONVENIENCE OF ANY SUCH FORUM AND ANY AND ALL RIGHTS TO REMOVE SUCH ACTION FROM
STATE TO FEDERAL COURT. guarantor further waives any rights to commence any
action against MLBFS in any jurisdiction except in the County of Xxxx and State
of Illinois. MLBFS and guarantor hereby each expressly waive any and all rights
to a trial by jury in any action, proceeding or counterclaim brought BY either
of the parties against the other party with respect to any matter relating to,
arising out of or in any way connected with THIS GUARANTY and/or any of the
transactions which are the subject matter of this GUARANTY. gUARANTOR FURTHER
WAIVES THE RIGHT TO BRING ANY NON-COMPULSORY COUNTERCLAIMS. Wherever possible
each provision of this Guaranty shall be interpreted in such manner as to be
effective and valid under applicable law, but if any provision of this Guaranty
shall be prohibited by or invalid under such law, such provision shall be
ineffective only to the extent of such prohibition or invalidity, without
invalidating the remainder of such provision or the remaining provisions of this
Guaranty. No modification or waiver of any of the provisions of this Guaranty
shall be effective unless in writing and signed by both Guarantor and an officer
of MLBFS. Each signatory on behalf of Guarantor warrants that he or she has
authority to sign on behalf of Guarantor, and by so signing, to bind Guarantor
hereunder.
Dated as of March 21, 2001.
CTU CORPORATION F/K/A M.D.J.B. INC.
By: ____________________________________________________________________________
Signature (4) Signature (2)
--------------------------------------------------------------------------------
Printed Name Printed Name
--------------------------------------------------------------------------------
Title Title
Address of Guarantor:
0000 X. Xxxxxxxx Xxxxxx
Xxxxxxxx Xxxxxxx, XX 00000
SECRETARY'S CERTIFICATE
================================================================================
(Guaranty by Corporation)
The undersigned hereby certifies to Xxxxxxx Xxxxx Business Financial
Services Inc. that the undersigned is the duly appointed and acting Secretary
(or Assistant Secretary) of CTU CORPORATION F/K/A M.D.J.B. INC., a corporation
duly organized, validly existing and in good standing under the laws of the
State of Delaware; and that the following is a true, accurate and compared
transcript of resolutions duly, validly and lawfully adopted on the _______ day
of ____________________, 2001 by the Board of Directors of said Corporation
acting in accordance with the laws of the state of incorporation and the charter
and by-laws of said Corporation:
"RESOLVED, that it is advisable and in the best interests and to the
benefit of this Corporation to guaranty the obligations of XXXXXXX EDUCATION
GROUP, INC. D/B/A XXXXXXX EDUCATION GROUP AND F/K/A XXXXXXX MEDICAL CORPORATION
("Customer") to XXXXXXX XXXXX BUSINESS FINANCIAL SERVICES INC. ("MLBFS"); and
"FURTHER RESOLVED, that the President, any Vice President, Treasurer,
Secretary or other officer of this Corporation, or any one or more of them, be
and each of them hereby is authorized and empowered for and on behalf of this
Corporation to: (a) execute and deliver to MLBFS: (i) an Unconditional Guaranty
of the obligations of Customer, (ii) any other agreements, instruments and
documents required by MLBFS in connection therewith, including, without
limitation, any agreements, instruments and documents evidencing liens or
security interests on any of the property of this Corporation as collateral for
said Unconditional Guaranty and/or the obligations of Customer to MLBFS, and
(iii) any present or future amendments to any of the foregoing; all in such form
as such officer shall approve, as evidenced by his signature thereon; and (b) to
do and perform all such acts and things deemed by any such officer to be
necessary or advisable to carry out and perform the undertakings and agreements
of this Corporation set forth therein; and all prior acts of each of said
officers in these premises are hereby ratified and confirmed; and
"FURTHER RESOLVED, that MLBFS is authorized to rely upon the foregoing
resolutions until it receives written notice of any change or revocation from an
authorized officer of this Corporation, which change or revocation shall not in
any event affect the obligations of this Corporation with respect to any
transaction conditionally agreed or committed to by MLBFS or having its
inception prior to the receipt of such notice by MLBFS."
The undersigned further certifies that: (a) the foregoing resolutions have
not been rescinded, modified or repealed in any manner, are not in conflict with
any agreement of said Corporation and are in full force and effect as of the
date of this Certificate, and (b) the following individuals are now the duly
elected and acting officers of said Corporation and the signatures set forth
below are the true signatures of said officers:
President: ____________________________________________________________
Vice President: _______________________________________________________
Treasurer: ____________________________________________________________
Secretary:_____________________________________________________________
-----------------: ----------------------------------------------------
Additional Title
IN WITNESS WHEREOF, the undersigned has executed this Certificate and has
affixed the seal of said corporation hereto, pursuant to due authorization, all
as of this ________ day of _________________, 2001.
(Corporate Seal) ____________________________________________
Secretary
Printed Name: ____________________________________________
