EXHIBIT 10.36
COMMERCIAL GUARANTY
BORROWER: COLORADO TECHNICAL UNIVERSITY, INC. LENDER: BANK ONE, COLORADO, N.A.
A COLORADO CORPORATION COLORADO SPRINGS BUSINESS BANKING
0000 X. XXXXXXX XX. 00 XXXX XXXXX XXXX XXXXXX
XXXXXXXX XXXXXXX, XX 00000 XXXXXXXX XXXXXXX, XX 00000
GUARANTOR:XXXXXXX EDUCATION GROUP, INC.
0000 XXXXXXXX XXXX.
XXXXX, XX 00000
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CONTINUING UNLIMITED GUARANTY. For good and valuable consideration, XXXXXXX
EDUCATION GROUP INC ("Guarantor") absolutely and unconditionally guarantees and
promises to pay to BANK ONE, COLORADO, N.A. ("Lender") or its order, in legal
tender of the United States of America, the Indebtedness (as that term is
defined below) of COLORADO TECHNICAL UNIVERSITY, INC ("Borrower") to Lender on
the terms and conditions set forth in this Guaranty. Under this Guaranty, the
liability of Guarantor is unlimited and the obligations of Guarantor are
continuing.
DEFINITIONS. The following words shall have the following meanings when used in
this Guaranty:
BORROWER. The word "Borrower" means COLORADO TECHNICAL UNIVERSITY, INC.
GUARANTOR. The word "Guarantor" means XXXXXXX EDUCATION GROUP INC.
GUARANTY. The word "Guaranty" means this Guaranty made by Guarantor for the
benefit of Lender dated June 13, 1997.
INDEBTEDNESS. The word "Indebtedness" means and includes any and all of
Borrower's liabilities, obligations, debts, and indebtedness to Lender, now
existing or hereinafter incurred or created, including, without limitation, all
loans, advances, interest, costs, debts, overdraft indebtedness, credit card
indebtedness, lease obligations, other obligations, and liabilities of Borrower,
or any of them, any present or future judgments against Borrower, or any of
them, and all renewals, extensions, modifications, substitutions and
rearrangements of the foregoing, and whether any such Indebtedness is
voluntarily or involuntarily incurred, due or not due, absolute or contingent,
direct or indirect, liquidated or unliquidated, determined or undetermined;
whether Borrower may be liable individually or jointly with others, or primarily
or secondarily, or as debtor, maker, comaker, drawer, endorser, guarantor or
surety; whether such Indebtedness arises by note, draft, acceptance, guaranty,
endorsement, letter of credit, assignment, overdraft, indemnity agreement or
otherwise, whether recovery on the Indebtedness may be or may become barred or
unenforceable against Borrower for any reason whatsoever, and whether the
Indebtedness arises from transactions which may be voidable on account of
infancy, insanity, ultra xxxxx, or otherwise and no matter any exculpation of
Borrower.
LENDER. The word "Lender" means BANK ONE, COLORADO, N.A., its successors and
assigns.
RELATED DOCUMENTS. The words "Related Documents" mean and include without
limitation all promissory notes, credit agreements, loan agreements,
environmental agreements, guaranties, security agreements, mortgages, deeds of
trust, and all other instruments, agreements and documents, whether now or
hereafter existing, executed in connection with the Indebtedness.
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NATURE OF GUARANTY. This is a guaranty of payment and not of collection.
Guarantor's liability under this Guaranty shall be open and continuous for so
long as this Guaranty remains in force. Guarantor intends to guarantee at all
times the performance and prompt payment when due, whether at maturity or
earlier by reason of acceleration or otherwise, of all Indebtedness.
Accordingly, no payments made upon the Indebtedness will discharge or diminish
the continuing liability of Guarantor in connection with any remaining portions
of the Indebtedness or any of the Indebtedness which subsequently arises or is
thereafter incurred or contracted.
DURATION OF GUARANTY. This Guaranty will take effect when received by Lender
without the necessity of any acceptance by Lender, or any notice to Guarantor or
to Borrower, and will continue in full force until all Indebtedness incurred or
contracted before receipt by Lender of any notice of revocation shall have been
fully and finally paid and satisfied and all other obligations of Guarantor
under this Guaranty shall have been performed in full. If Guarantor elects to
revoke this Guaranty, Guarantor may only do so in writing. Guarantor's written
notice of revocation must be delivered to Lender at the address of Lender listed
above or such other place as Lender may designate in writing. This Guaranty may
be revoked only with respect to Indebtedness incurred or contracted by Borrower,
or acquired or committed to by Lender after the date on which written notice of
revocation is actually received by Lender. No notice of revocation hereof shall
be effective as to any Indebtedness: (a) existing at the date of receipt of such
notice; (b) incurred or contracted by Borrower, or acquired or committed to by
Lender, prior to receipt of such notice; (c) now existing or hereafter created
pursuant to or evidenced by a loan agreement or commitment in existence prior to
receipt of such notice under which Borrower is or may become obligated to
Lender; or (d) renewals, extensions, consolidations, substitutions, and
refinancing of the foregoing. Guarantor waives notice of revocation given by any
other guarantor of the Indebtedness. If Guarantor is an individual, this
Guaranty shall bind the estate of Guarantor as to Indebtedness created both
before and after the death or incapacity of Guarantor, regardless of Lender's
actual notice of Guarantor's death or incapacity. Subject to the foregoing,
Guarantor's executor or administrator or other legal representative may
terminate this Guaranty in the same manner in which Guarantor might have
terminated it and with the same effect. Guarantor shall be liable, jointly and
severally, with Borrower and any other guarantor of all or any part of the
Indebtedness and release of any other guarantor of the Indebtedness, or
termination or revocation of any other guaranty of the Indebtedness, shall not
affect the liability of Guarantor under this Guaranty. It is anticipated that
fluctuations may occur in the aggregate amount of Indebtedness covered by this
Guaranty, and it is specifically acknowledged and agreed by Guarantor that
reductions in the amount of Indebtedness, even to zero dollars ($0.00), shall
not constitute a termination of this Guaranty.
GUARANTOR'S AUTHORIZATION TO LENDER. Guarantor authorizes Lender, either before
or after any revocation hereof, without notice or demand and without lessening
Guarantor's liability under this Guaranty, from time to time: (a) to make one or
more additional secured or unsecured loans to Borrower, to lease equipment or
other goods to Borrower or otherwise to extend additional credit to Borrower;
(b) to alter, compromise, renew, extend, accelerate, or otherwise change one or
more times the time for payment or other terms of the Indebtedness or any part
of the Indebtedness, including increases and decreases of the rate of interest
on the Indebtedness; extensions may be repeated and may be for longer than the
original loan term; (c) to take and hold security for the payment of this
Guaranty or the Indebtedness, and exchange, enforce, waive, fail or decide not
to perfect, and release any such security, with or without the substitution of
new collateral; (d) to release, substitute, agree not to xxx, or deal with any
one or more of Borrower's sureties, endorsers, or other guarantors on any terms
or in any manner Lender may choose; (e) to determine how, when and what
application of payments and credits shall be made on the Indebtedness; (f) to
apply any proceeds it
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receives as a result of the foreclosure or other realization on any collateral
for the Indebtedness to that portion, if any, of the Indebtedness not guaranteed
hereunder or to any other indebtedness secured by such collateral, as Lender in
its discretion may determine; (g) to sell, transfer, assign, or grant
participation in all or any part of the Indebtedness; and (h) to assign or
transfer this Guaranty in whole or in part.
GUARANTOR'S REPRESENTATIONS, WARRANTIES, AND COVENANTS. Guarantor represents,
warrants and covenants to Lender that (a) no representations or agreements of
any kind have been made to Guarantor which would limit or qualify in any way the
terms of this Guaranty; (b) this Guaranty is executed at Borrower's request and
not at the request of Lender; (c) Guarantor has full power, right and authority
to enter into this Guaranty; (d) the provisions of this Guaranty do not conflict
with or result in a default under any agreement or other instrument binding upon
Guarantor and do not result in a violation of any law, regulation, court decree
or order applicable to Guarantor; (e) Guarantor has not and will not, without
the prior written consent of Lender, sell, lease, assign, encumber, hypothecate,
transfer, or otherwise dispose of allow substantially all of Guarantor's assets,
or any interest therein; (f) Lender has made no representation to Guarantor as
to the creditworthiness of Borrower; (g) Guarantor will provide to Lender
financial statements and other financial information regarding Guarantor as
Lender may request from time to time, in form and detail acceptable to Lender,
and all such financial information heretofore an hereafter provided to Lender is
and shall be true and correct in all material respects and fairly presents the
financial condition of Guarantor as of the dates hereof, and no material adverse
change has occurred in the financial condition of Borrower and has established
adequate means of obtaining from Borrower on a continuing basis information
regarding Borrower's future financial condition and is not relying on Lender to
provide such information to Guarantor; (i) as of the date hereof, and after
giving effect to this Guaranty, (1) Guarantor is and will be solvent, (2) the
fair saleable value of Guarantor's assets exceeds and will continue to exceed
Guarantor's liabilities (both fixed and contingent), (3) Guarantor is and will
continue to be able to pay Guarantor's debts as they mature, and (4) if
Guarantor is not an individual, Guarantor has and will continuer to have
sufficient capital to carry on its business and all businesses in which it is
about to engage; and (j) Guarantor has the power and authority to execute,
deliver and perform this Guaranty and the other Related Documents executed by
Guarantor. Guarantor agrees to keep adequately informed from such means of any
facts, events, or circumstances which might in any way affect Guarantor's risk
under this Guaranty, and Guarantor further agrees that Lender shall have no
obligation to disclose to Guarantor any information or documents acquired by
Lender in the course of its relationship with Borrower.
GUARANTOR'S WAIVERS. Guarantor waives any right to require Lender (a) to
continue lending money or to extend other credit to Borrower; (b) to make any
presentment, protest, demand, or notice of any kind, including notice of any
nonpayment of the Indebtedness or of any nonpayment related to any collateral,
or notice of ant action or nonaction on the party of Borrower, Lender, any
surety, endorser, or other guarantor in connection with the Indebtedness or in
connection with the creation of new or additional loans or obligations; (c) to
notify Guarantor of any change in the manner, place, time or terms of payment of
any of the Indebtedness (including, without limitation, any renewal, extension
or other modification of any of the Indebtedness); or (d) to notify Guarantor of
any change in the interest rate accruing on any of the Indebtedness (including,
without limitation, any periodic change in such interest rate that occurs
because such Indebtedness accrues interest at a variable rate which may
fluctuate from time to time). Should Lender seek to enforce the obligations of
Guarantor hereunder, Guarantor waives any right to require Lender to first (a)
resort for payment or to proceed directly or at once against any person,
including Borrower or any other guarantor of the Indebtedness; (b) to proceed
directly against, marshal!, enforce, or exhaust any collateral held by Lender
from Borrower, Guarantor, any other guarantor, or any other person; or (c) to
pursue any other remedy within Lender's power.
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Guarantor also waives any and all rights or defenses arising by reason of (a)
any election of remedies by Lender which destroys or otherwise adversely affects
Guarantor's subrogation rights or Guarantor's rights to proceed against Borrower
for reimbursement, including without limitation, any loss of rights Guarantor
may suffer by reason of any law limiting, qualifying, or discharging the
Indebtedness; (b) any disability or other defense of Borrower, of any other
guarantor, or of any other person, or by reason of the cessation of Borrower's
liability from any cause whatsoever, other than payment in full in legal tender,
of the Indebtedness; (c) any right to claim discharge of the Indebtedness on the
basis of unjustified impairment of any collateral for the Indebtedness; or (d)
any defenses given to guarantors at law or in equity other than actual payment
and performance of the Indebtedness. This Guaranty shall continue to be
effective or be reinstated, as the case may be, if at any time any payment of
all or any part of the Indebtedness is rescinded or must otherwise be returned
by Lender upon the insolvency, bankruptcy or reorganization of Borrower,
Guarantor, any other guarantor of all or any part of the Indebtedness, or
otherwise, all as though such payment had not been made.
Guarantor further waives and agrees not to assert or claim at any time any
deductions to the amount guaranteed under this Guaranty for any claim of setoff,
counterclaim, counter demand, recoupment or similar right, whether such claim,
demand or right may be asserted by the Borrower, the Guarantor, or both.
GUARANTOR'S UNDERSTANDING WITH RESPECT TO WAIVERS. Guarantor warrants and agrees
that each of the waivers set forth above is made with Guarantor's full knowledge
of its significance and consequences and that, under the circumstances, the
waivers are reasonable and not contrary to public policy or law. If any such
waiver is determined to be contrary to any applicable law or public policy, such
waiver shall be effective only to the extent permitted by law or public policy.
LENDER'S RIGHT OF SETOFF. Unless a lien would be prohibited by law or would
render a nontaxable account taxable, Guarantor hereby grants Lender a
contractual possessory security interest in and hereby assigns, conveys,
delivers, pledges and transfers all of Guarantor's right, title, and interest in
and to Guarantor's accounts with Lender (whether checking, savings, or any other
account), including all accounts held jointly with someone else and all accounts
Guarantor may open in the future. Guarantor authorizes Lender, to the extent
permitted by applicable law, to charge or setoff all Indebtedness against any
and all such accounts.
ACTIONS AGAINST AND PAYMENTS BY GUARANTOR. In the event of a default in the
payment or performance of all or any part of the Indebtedness when such
Indebtedness becomes due, whether by its terms, by acceleration or otherwise,
Guarantor shall, without notice or demand, promptly pay the amount due thereon
by Guarantor to Lender, in lawful money of the United States. The exercise by
Lender of any right or remedy under this Guaranty or under any other agreement
or instrument, at law, in equity or otherwise, shall not preclude concurrent or
subsequent exercise of any other right or remedy. Whenever Guarantor pays any
sum which is or may become due under this Guaranty, written notice must be
delivered to Lender contemporaneously with such payment. In the absence of such
notice to Lender by Guarantor, any sum received by Lender on account of the
Indebtedness shall be conclusively deemed paid by Borrower.
MISCELLANEOUS PROVISIONS:
AMENDMENTS. This Guaranty, together with any Related Documents, constitutes the
entire understanding and agreement of the parties as to the matters set forth in
this Guaranty and supersedes all prior written and oral agreements and
understandings, if any, regarding same. No alteration of or amendment to this
Guaranty shall be effective unless given in writing and signed by the party or
parties sought to be charged or bound by the alteration or amendment.
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APPLICABLE LAW. This Guaranty has been delivered to Lender and is performable in
EL PASO County, Colorado. Courts within the State of Colorado have jurisdiction
over any dispute arising under or pertaining to this Guaranty and venue for such
dispute shall be in EL PASO County, Colorado. THIS GUARANTY SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF COLORADO AND
APPLICABLE FEDERAL LAWS.
JURY WAIVER. THE UNDERSIGNED AND LENDER (BY ITS ACCEPTANCE HEREOF) HEREBY
VOLUNTARILY, KNOWINGLY, IRREVOCABLY AND UNCONDITIONALLY WAIVE ANY RIGHT TO HAVE
A JURY PARTICIPATE IN RESOLVING ANY DISPUTE (WHETHER BASED UPON CONTRACT, TORT
OR OTHERWISE) BETWEEN OR AMONG THE UNDERSIGNED AND LENDER ARISING OUT OF OR IN
ANY WAY RELATED TO THIS DOCUMENT OR ANY OTHER RELATED DOCUMENT. THIS PROVISION
IS A MATERIAL INDUCEMENT TO LENDER TO PROVIDE THE FINANCING DESCRIBED HEREIN OR
IN THE OTHER RELATED DOCUMENTS.
ARBITRATION. Lender and Guarantor agree that upon the written demand of either
party, whether made before or after the institution of any legal proceedings,
but prior to the rendering of any judgment in that proceeding, all disputes,
claims and controversies between them, whether individual, joint, or class in
nature, arising from this Guaranty, any Related Document or otherwise, including
without limitation contract disputes and tort claims, shall be arbitrated
pursuant to the Commercial Rules of the American Arbitration Association. Any
arbitration proceeding held pursuant to this arbitration provision shall be
conducted in the city nearest the Guarantor's address having an AAA regional
office, or at any other place selected by mutual agreement of the parties. No
act to take or dispose of any collateral shall constitute a waiver of this
arbitration agreement or be prohibited by this arbitration agreement. This
arbitration provision shall not limit the right of either party during any
dispute, claim or controversy to seek, use, and employ ancillary, provisional or
preliminary rights and/or remedies, judicial or otherwise, for the purposes of
realizing upon, preserving, protecting, foreclosing upon or proceeding under
forcible entry and detainer for possession of, any real or personal property,
and any such action shall not be deemed an election of remedies. This includes,
without limitation, obtaining injunctive relief or a temporary restraining
order, invoking a power of sale under any deed of trust or mortgage, obtaining a
writ of attachment or imposition of a receivership, or exercising any rights
relating to personal property, including taking or disposing of such property
with or without judicial process pursuant to Article 9 of the Uniform Commercial
Code. Any disputes claims, or controversies concerning the lawfulness or
reasonableness of any act, or exercise of any right or remedy, concerning any
collateral, including any claim to rescind, reform, or otherwise modify any
agreement relating to the collateral, shall also be arbitrated; provided however
that no arbitrator shall have the right or the power to enjoin or restrain any
act of either party. Judgment upon any award rendered by any arbitrator may be
entered in any court having jurisdiction. Nothing in this arbitration provision
shall preclude either party from seeking equitable relief from a court of
competent jurisdiction. The statute of limitations, estoppel, waiver, laches and
similar doctrines which would otherwise be applicable in an action brought by a
party shall be applicable in any arbitration proceeding, and the commencement of
an arbitration proceeding shall be deemed the commencement of any action for
these purpose. The Federal Arbitration Act (Title 9 of the United States Code)
shall apply to the construction, interpretation, and enforcement of this
arbitration provision.
COSTS AND EXPENSES. Guarantor shall also pay on demand by Lender all costs and
expenses, including, without limitation, all reasonable attorneys' fees,
incurred by Lender in connection with the enforcement and or collection of this
Guaranty and with the collection and/or sale of any collateral securing this
Guaranty. This covenant shall survive the payment of the Indebtedness.
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NOTICES. All notices required to be given by either party to the other under
this Guaranty shall be in writing and except for revocation notices by
Guarantor, shall be effective when actually delivered or when deposited with a
nationally recognized overnight courier, or when deposited in the United States
mail, first class postage prepaid, addressed to the party to whom the notice is
to be given at the address shown above or to such other addresses as either
party may designate to the other in writing. All revocation notices by Guarantor
shall be in writing and shall be effective only upon delivery to Lender as
provided above in the section titled "DURATION OF GUARANTY." For notice
purposes, Guarantor agrees to keep Lender informed at all times of Guarantor's
current address. In the event that Guarantor is entitled to receive any notice
under the Uniform Commercial Code, as it exists in the state governing any such
notice, of the sale or other disposition of any collateral securing all or any
part of the Indebtedness or this Guaranty, reasonable notice shall be deemed
given when such notice is given pursuant to the terms of this Subjection ten
(10) days prior to the date any public sale, or after which any private sale, of
any such collateral is to be held.
INTERPRETATION. In all cases where there is more than one Borrower, then all
words used in this Guaranty in the singular shall be deemed to have been used in
the plural where the context and construction so require; and where there is
more than one borrower named in this Guaranty, the word "Borrower" shall mean
all and any one or more of them. This Guaranty is for the benefit of Lender, its
successors and assigns. This Guaranty is binding upon Guarantor and Guarantor's
heirs, executors, administrators, personal representatives and successors.
Caption headings in this Guaranty are fir convenience purposes only and are not
to be used to interpret or define the provisions of this Guaranty. If a court of
competent jurisdiction finds any provision of this guaranty to be invalid or
unenforceable as to any person or circumstance, such finding shall not render
that provision invalid or unenforceable a to any other persons or circumstances,
and all provisions of this Guaranty in all other respects shall remain valid and
enforceable. If any one or more of borrower or Guarantor are corporations or
partnership, it is not necessary for Lender to inquire into the powers of
Borrower or Guarantor or of the officers, directors, partner, or agents acting
or purporting to act on their behalf, and any Indebtedness made or created in
reliance upon the professed exercise of such powers shall be guaranteed under
this Guaranty.
WAIVER. Lender shall not be deemed to have waived any rights under this guaranty
unless such waiver is given in writing and signed by Lender, and then only in
the specific instance and for the purpose given. No delay or omission on the
part of Lender in exercising any right shall operate as a waiver of such right
or any other right. A waiver by Lender of a provision of this Guaranty shall not
prejudice or constitute a waiver of Lender's right to thereafter demand strict
compliance with that provision or any other provision of this guaranty. No prior
waiver by Lender, nor any course of dealing between Lender and Guarantor, shall
constitute a waiver of any Lender's rights or of any of Guarantor's obligations
as to any future transactions. Whenever the consent of Lender is required under
this Guaranty, the granting of such consent by Lender in any instance shall not
constitute continuing consent to subsequent instances where such consent is
required and in all cases such consent may be granted or withheld in the sole
discretion of Lender.
EACH UNDERSIGNED GUARANTOR ACKNOWLEDGES HAVING READ ALL THE PROVISIONS OF THIS
GUARANTY AND AGREES TO ITS TERMS. IN ADDITION, EACH GUARANTOR UNDERSTANDS THAT
THIS GUARANTY IS EFFECTIVE UPON GUARANTOR'S EXECUTION AND DELIVERY OF THIS
GUARANTY TO LENDER AND THAT THE GUARANTY WILL CONTINUE UNTIL TERMINATED IN THE
MANNER SET FORTH IN THE SECTION TITLED "DURATION OF GUARANTY". NO FORMAL
ACCEPTANCE BY LENDER IS NECESSARY TO MAKE THIS GUARANTY EFFECTIVE. THIS GUARANTY
IS DATED JUNE 13,1997.
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GUARANTOR:
XXXXXXX EDUCATION GROUP INC.
By:/S/ XXXXX X. XXXXX By: /S/ XXXXXXXX X. XXXXXXXXX
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XXXXX X XXXXX, PRESIDENT XXXXXXXX X XXXXXXXXX, VICE PRESIDENT
