EXHIBIT 10.21
GUARANTY AGREEMENT
GUARANTY AGREEMENT, dated July 13, 2005, made by Xxxxxxx
X. Xxxxxx, (the "GUARANTOR"), in favor of Wisse Enterprises LLC(the
"GUARANTEED PARTY").
PRELIMINARY STATEMENT. The Guaranteed Party has entered
into a Revolving Credit Agreement dated July 13, 2005 (the "AGREEMENT") with
Sonoma College, Inc., ("SONOMA"). The Guarantor is the Chief Executive Officer
of Sonoma.
NOW, THEREFORE, in consideration of the premises and in
order to induce the Guaranteed Party to enter into the Agreement, the Guarantor
hereby agrees as follows:
SECTION 1. GUARANTY. The Guarantor hereby unconditionally
and irrevocably guarantees the full and prompt payment and performance when due
of all obligations of Sonoma under the Agreement (the "OBLIGATIONS"). This
Guaranty is a guaranty of payment and not of collection and the Guaranteed Party
shall have no obligation to take any action directly against Sonoma but may, in
its absolute discretion, proceed directly against Guarantor to enforce its
rights hereunder.
SECTION 2. GUARANTY ABSOLUTE. The Guarantor guarantees
that the Obligations will be paid and performed strictly in accordance with
their terms, regardless of any law, regulation or order now or hereafter in
effect in any jurisdiction affecting any of such terms or the rights of the
Guaranteed Party with respect thereto. The liability of the Guarantor is
primary, direct and independent of the Obligations of Sonoma. This Guaranty
shall be enforceable against the Guarantor in the same manner as if the
Guarantor was the primary obligor with respect to the Obligations. The liability
of the Guarantor under this Guaranty shall be absolute and unconditional
irrespective of:
(a) any change in the time, manner or place of payment of,
or in any other term of, all or any of the Obligations, or any other amendment
or waiver of or any consent to departure thereof;
(b) any defense which the Guarantor may assert with
respect to the Obligations including, but not limited to, failure of
consideration, breach of warranty, fraud, payment, statute of frauds,
bankruptcy, lack of legal capacity, statute of limitations, lender liability,
accord and satisfaction and usury; or
(c) any other circumstance which might otherwise
constitute a defense available to, or a discharge of, the Guarantor in respect
of the Obligations or the Guarantor in respect of this Guaranty.
None of the foregoing waivers shall prejudice the
Guaranteed Party's rights under Section 1.08 of the Agreement. This Guaranty
shall continue to be effective or be reinstated, as the case may be, if at any
time any payment of any of the Obligations is rescinded or must
otherwise be returned by the Guaranteed Party upon the insolvency, bankruptcy or
reorganization of Sonoma or otherwise, all as though such payment had not been
made.
SECTION 3. CONSENT TO JURISDICTION; WAIVER OF IMMUNITIES
AND RIGHT TO TRIAL BY JURY. (a) Any suit, action or proceeding against the
Guarantor with respect to this Guaranty shall be brought in the courts of the
State of New York or in the United States District Court for the Eastern
District of New York and the parties hereby submit to the exclusive jurisdiction
of such courts for the purpose of any such suit, action or proceeding.
SECTION 4. MISCELLANEOUS PROVISIONS.
(a) AMENDMENTS. No amendment or waiver of any provision of
this Guaranty nor consent to any departure by the Guarantor therefrom shall in
any event be effective unless the same shall be in writing and signed by each of
the Guaranteed Parties and then such waiver or consent shall be effective only
in the specific instance and for the specific purpose for which given. (b)
NOTICES. (i) Any notice or other communication required or permitted hereunder
shall be in writing and shall be delivered or transmitted personally by
messenger, by recognized overnight courier, telecopied or mailed (by registered
or certified mail, return receipt requested) as follows:
(A) If to the Guarantor, to:
Sonoma College, Inc.
0000 Xxxxx Xxxxx Xxxx.
Xxxxx 000
Xxxxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxx
(B) If to the Guaranteed Party, one copy to:
(ii) Each such notice or other communication shall be
effective (A) if given by telecopier, when such telecopy is transmitted to the
telecopier number specified in Section 6(b)(i) (with confirmation of
transmission and with a follow-up copy sent by registered or certified mail,
return receipt requested) or (B) if given by any other means, when delivered at
the address specified in Section 6(b)(i). Any party by notice given in
accordance with this Section 6(b) to the other parties may designate another
address (or telecopier number) or person for receipt of notices hereunder.
Notices by a party may be given by counsel to such party.
(c) NO WAIVER; REMEDIES. No failure on the part of the
Guaranteed Party to exercise, and no delay in exercising, any right hereunder
shall operate as a waiver thereof; nor shall any single or partial exercise of
any right hereunder preclude any other or
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further exercise thereof or the exercise of any other right. The remedies herein
provided are cumulative and not exclusive of any remedies provided by law.
(d) HEADINGS. The headings herein are for convenience only
and shall not limit or define the meaning of the provisions of this Guaranty.
(e) SEVERABILITY. If any provision of this Guaranty for
any reason shall be held to be illegal, invalid or unenforceable, such
illegality shall not affect any other provision of this Guaranty, this Guaranty
shall be amended so as to enforce the illegal, invalid or unenforceable
provision to the maximum extent permitted by applicable law, and the parties
shall cooperate in good faith to further modify this Guaranty so as to preserve
to the maximum extent possible the intended benefits to be received by the
parties.
(f) CONTINUING GUARANTY. This Guaranty is a continuing
guaranty and shall (i) remain in full force and effect until payment in full of
the Obligations and all other amounts payable under this Guaranty, (ii) be
binding upon the Guarantor, its successors and assigns, and (iii) inure to the
benefit of and be enforceable by the Guaranteed Party and its successors,
transferees and assigns.
(g) GOVERNING LAW. This Guaranty shall be governed by, and
construed in accordance with, the laws of the State of New York.
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IN WITNESS WHEREOF, the Guarantor has caused this Guaranty
to be duly executed and delivered as of the date first above written.
By /S/
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Name: Xxxxxxx X. Xxxxxx
WITNESSED BY:
/s/
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Name:
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