Exhibit 99.2
LEASE GUARANTY
THIS GUARANTY, executed this 16th day of March, 2007 and effective the 1st
day of January, 2007, by Broadview Institute, Inc. ("Guarantor") to Xxxxx
Holdings-Utah, LLC, a Minnesota limited liability company
("Lessor").
RECITALS
A. Lessor owns certain property located at 000 Xxxx Xxxxxxxxx Xxxx, Xxxxxx,
Xxxx.
B. C Square Educational Enterprises d/b/a Utah Career College ("Tenant")
desires to lease the property pursuant to a Lease of even date herewith. Tenant
is a wholly owned subsidiary of Guarantor.
C. As additional consideration to Lessor, without which it would not enter
into a Lease with Tenant, Guarantor hereby agrees to guaranty the Lease.
NOW, THEREFORE, FOR VALUE RECEIVED, and in order to induce Lessor to make
the Lease above referenced, Guarantor absolutely and unconditionally
guarantees to Lessor, and the successors and assigns of Lessor:
(i) the due and prompt payment of all Rent and monetary sums due under the
Lease.
(ii) The due and prompt performance and observance of all of the terms and
conditions of the Lease.
(iii) The due and prompt payment of all costs incurred, including
reasonable attorney's fees, in enforcing payment and performance of the
Lease.
The aforesaid being herein collectively referred to as the "Indebtedness
Guaranteed". If at any time default shall be made by Tenant in the performance
or observance of any of the terms, covenants or conditions in the Lease
contained on Tenant's part to be kept, performed or observed, Guarantor will
keep, perform and observe the same, as the case may be, in place and stead of
Tenant.
1. Lessor may, from time to time, without notice to or consent of Guarantor, and
upon such terms and conditions as the Lessor may deem advisable, without
affecting this Guaranty:
(a) release any of the Undersigned, any maker, surety or other person
liable for payment of all or any part of the Indebtedness Guaranteed;
(b) make any agreement extending or otherwise altering the time for or the
terms of payment of all or any part of the Indebtedness Guaranteed;
(c) modify, waive, compromise, release, subordinate, resort to exercise or
refrain from exercising any right the Lessor may have hereunder related to the
Indebtedness Guaranteed;
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(d) accept additional security or guarantees of any kind;
(e) transfer or assign the Lease to any other party;
(f) accept partial payment or payments on account of the Indebtedness
Guaranteed;
(g) release, settle or compromise any claim of the Lessor against any
person, firm or corporation whose obligation is held as collateral security for
the Indebtedness Guaranteed.
2. Guarantor unconditionally and absolutely waives:
(a) notice of acceptance of this Guaranty by the Lessor;
(b) notice of presentment, demand for payment, notice of non-performance,
protest, notices of protest and notices of dishonor, notice of non-payment or
partial payment;
(c) notice of any defaults under the Lease, or in the performance of any of
the covenants and agreements contained therein or in any instrument given as
security for the Lease;
(d) any defense, offset or claim Tenant may have against the Lessor;
(e) any limitation or exculpation of liability on the part of Tenant,
whether contained in the Lease or otherwise;
(f) any right to insist that the Lessor resort to any instrument or
security given to secure the Indebtedness Guaranteed or to proceed against
Tenant, or any other guarantor or surety prior to enforcing this Guaranty.
(g) any order, method or manner or application of payments on the
Indebtedness Guaranteed.
3. Guarantor will not assert against Lessor any defense of waiver, release,
discharge in bankruptcy, statute of limitations, res judicata, statute of
frauds, anti-deficiency statute, fraud, merger of clauses under this Guaranty
with the Indebtedness Guaranteed, ultra xxxxx acts, usury, illegality or
unenforceability which may be available to Lessor with respect to the
Indebtedness Guaranteed, or any setoff available against the Lessor, whether or
not on account of a related transaction. The liability of Guarantor shall not be
affected or impaired by any voluntary or involuntary dissolution, sale or other
disposition of all or substantially all the assets, marshalling of assets and
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liabilities, receivership, insolvency, bankruptcy, assignment for the benefit of
creditors, reorganization, arrangement, composition or readjustment of, or other
similar event or proceeding affecting Lessor, or any of its assets, the
rejection, disaffirmance or modification of the Lease in any such proceedings,
the assignment or transfer of the Lease by Tenant, or the cessation from any
cause whatsoever of the Indebtedness Guaranteed, and that upon the institution
of any of the above actions, at the Lessor's sole discretion and without notice
thereof or demand therefore, Guarantor's obligations shall become due and
payable and enforceable, whether or not the Indebtedness Guaranteed is then due
and payable.
4. No act or thing, except for performance in full, which but for this provision
might or could in law or in equity act as a release of the liabilities of
Guarantor shall in any way affect or impair this Guarantee and this shall be a
continuing, absolute and unconditional Guaranty and shall be in full force and
effect until the Indebtedness Guaranteed has been paid in full.
5. Guarantor shall not be subrogated to any of the Indebtedness Guaranteed
unless and until the full amount of the Indebtedness Guaranteed has been fully
paid. Guarantor subordinates any liability or indebtedness of Tenant now or
hereafter held by Guarantor to the obligations of Tenant to the Lessor under the
Lease.
6. This Guaranty shall apply to the Lease, any extension
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or renewal thereof, and to any holdover term following the term of the Lease
specified. This Guaranty shall also include any liability of Tenant which shall
accrue under the Lease for any period preceding, as well as any period
following, the term of the Lease specified.
7. The Undersigned submits and consents to personal jurisdiction in the State of
Minnesota for the enforcement of this Guaranty and waives any and all personal
rights under the laws of any state or the United States of America to object to
jurisdiction in the State of Minnesota for the purposes of litigation to enforce
this Guaranty. Nothing contained herewith shall prevent Lessor from bringing any
action or exercising any rights against any security given to Lessor by the
Guarantor personally, or against any property of the Guarantor, within any other
state.
8. No right or remedy herein conferred upon or reserved to the Lessor is
intended to be exclusive of any other available remedy or remedies but each and
every remedy shall be cumulative and shall be in addition to every other remedy
given under this Guaranty, or as may now or hereafter exist at law or in equity.
No waiver, amendment, release or modification of this Guaranty shall be
established by conduct, custom or course of dealing, but only by an instrument
in writing duly executed by the Lessor.
9. This Guaranty is delivered in and made in, is executed with respect to and
shall in all respects be construed pursuant
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to and governed by the laws of the State of Minnesota.
10. This Guaranty and each and every part hereof, shall be binding upon
Guarantor and his/her heirs, administrators, executors, representatives and
assigns and shall inure to the benefit of each and every future holder of the
Lease. This Guaranty shall run with the Lease and without the need for any
further assignment of this Guaranty to any subsequent holder of the Lease or the
need for any notice to or consent of Guarantor. Upon assignment of the Lease to
any subsequent holder, said subsequent holder shall be substituted for the
Lessor and may enforce this Guaranty as if said holder had been originally named
as Lessor hereunder.
IN FURTHERANCE WHEREOF, the Undersigned has executed this Guaranty effective the
date first above written.
Broadview Institute, Inc.
By /s/ H. Xxxxxxx Xxxxx
-------------------------------------
Its Chief Financial Officer
STATE OF MINNESOTA)
)ss.
COUNTY OF HENNEPIN)
On this 16th day of March, 2007,
appeared before me, a notary public,
H. Xxxxxxx Xxxxx of Broadview
Institute,Inc. who acknowledged that
he has subscribed his name hereto by
authority of, and with intent to
bind, Broadview Institute, Inc.
/s/ Xxxxx X. Xxxxxxx
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Notary Public
5.