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EXHIBIT 10.22
CONTRIBUTION AGREEMENT
This Contribution Agreement, dated as of April 28, 2000, is by and
between Beacon Education Management LLC, a Tennessee limited liability company
("Beacon"), and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, as Trustee of The ▇▇▇▇▇▇▇▇▇ 1980 Revocable
Trust (the "Trust") formed under that certain Trust Agreement originally dated
September 4, 1980, as amended ("Trustee").
WHEREAS, pursuant to a Lease Agreement dated as of April __, 2000 (the
"Lease Agreement"), by and between NCB Development Corporation ("Bank") and
▇▇▇▇▇▇ Creek Academy, a Michigan non-profit corporation ("Borrower"), Bank has
agreed to provide lease financing up to $327,431.76 to the Borrower;
WHEREAS, in connection with the Lease Agreement, Trustee has executed a
Limited Guaranty by the Trust in favor of Bank of even date herewith ("Limited
Guaranty");
WHEREAS, Beacon has requested that Trustee provide the Limited Guaranty
to support the obligations of Borrower under the Lease Agreement, and Beacon, as
manager of Borrower, will receive direct financial benefits as a result of the
Lease Agreement; and
WHEREAS, Trustee has requested that Beacon acknowledge in writing its
agreement to indemnify Trustee from all claims and losses that may be asserted
against Trustee by Bank under the Limited Guaranty.
NOW, THEREFORE, in consideration of the foregoing recitals and the
covenants contained herein, and in order to induce Trustee to execute the
Limited Guaranty, the parties agree as follows:
1. Reimbursement by Beacon. If at any time, and from time to
time, Bank shall have made a demand on Trustee for payment under the Limited
Guaranty or Trustee shall have otherwise made any payment to Bank on account of
Borrower's obligations under the Lease Agreement, then Beacon shall, on demand
by Trustee, reimburse Trustee within ten (10) days for all amounts Trustee has
paid to Bank. No forbearance or failure by Trustee to demand reimbursement from
Beacon on any occasion or with respect to any payment shall be deemed a waiver
of the right to seek reimbursement of any other or subsequent payment on one or
more other occasions.
2. Notice of Default by Borrower. If an Event of Default (as
defined in the Lease Agreement) shall occur, then within five (5) days after
Beacon has knowledge of such Event of Default Beacon shall furnish or cause to
be furnished to Trustee a written statement describing such Event of Default.
3. Representations and Warranties of Beacon. Beacon is a limited
liability company duly formed, validly existing and in good standing under the
laws of the State of Tennessee. Beacon has all requisite power and authority,
rights and franchises to own and operate its properties, to carry on its
business as now conducted and as proposed to be conducted, and to
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enter into and perform this Agreement. The execution, delivery and performance
of this Agreement by Beacon are within Beacon's power and have been duly
authorized. This Agreement has been duly executed by Beacon and is a legally
valid and binding obligation of Beacon, enforceable against Beacon in accordance
with its terms, except as enforceability thereof may be affected by (i)
bankruptcy, insolvency or similar laws affecting the enforcement of creditors
rights generally and (ii) availability of certain equitable remedies may be
limited by certain equitable principles of general applicability.
4. Notices. All notices or other communications required or
permitted hereunder shall be in writing and shall be personally delivered or
sent by registered or certified mail, postage prepaid, return receipt requested,
delivered or sent by telecopy or via a nationally-recognized overnight courier
service with charges prepaid, and shall be deemed received upon the earlier of:
(a) if delivered personally or via overnight courier, the date of delivery to
the address of the person to receive such notice, (b) if mailed, upon the date
of receipt as disclosed on the return receipt, (c) if telecopied, the date of
receipt as disclosed by the transmission record.
To Trustee: The ▇▇▇▇▇▇▇▇▇ 1980 Revocable Trust
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
To Beacon: Beacon Education Management
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Managing Member
Notice of change of address shall be given by written notice in the manner
detailed in this Section. Rejection or other refusal to accept or the inability
to deliver because of changed address of which no notice was given shall be
deemed to constitute receipt of the notice, demand, request or communication
sent.
5. Survival of Warranties. All agreements, representations and
warranties made in this Agreement and in any related certificates and agreements
shall survive the execution and delivery of this Agreement and the expiration of
the Limited Guaranty, and shall continue until any and all sums payable under
this Agreement shall have been paid and performed in full.
6. Counterparts. This Agreement may be executed in any number of
counterparts and by different parties on separate counterparts, each of which
counterparts, when so executed and delivered, shall be deemed to be an original,
and all of which counterparts, taken together, shall constitute but one and the
same Agreement.
7. Headings. Sections and other headings in this Agreement are
for convenience of reference only and shall not constitute a part of this
Agreement for any other purpose.
8. No Waiver. Any delay or omission of Trustee in exercising any
right or power arising from any default by Beacon shall not be construed as a
waiver of such default nor shall
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any single or partial exercise thereof preclude any further exercise thereof.
Trustee may, at its option, waive any of the conditions herein, and any such
waiver shall not be deemed a waiver of Trustee's rights hereunder but shall be
deemed to have been made in pursuance of this Agreement and not in modification
thereof.
9. No Third Party Benefits. This Agreement is made for the sole
benefit of Beacon and Trustee and their successors and permitted assigns. No
other person or persons shall have any rights or remedies under or by reason of
this Agreement or to exercise any right or power of Trustee hereunder. Subject
to the foregoing restrictions, this Agreement shall inure to the benefit of
Trustee and its successors and assigns and binds Beacon and its successors and
assigns.
10. Entire Agreement. This Agreement constitutes the entire
understanding between the parties and may not be modified, amended or terminated
except by a written agreement signed by each of the parties hereto.
11. California Law. This Agreement shall be construed in
accordance with the internal laws of the State of California, without regard to
its conflicts of laws principles.
12. Waiver of Jury Trial, Set-Off and Counterclaim. Beacon and
Trustee waive the right of trial by jury and the Beacon waives the right to
interpose any set-off or counterclaim of any kind or description in any such
litigation.
13. Severability. In the event that any provision of this
Agreement is found to be illegal or unenforceable, the remainder of this
Agreement shall remain in full force and effect.
14. Alternative Dispute Resolution. All claims, including any and
all questions of law or fact relating thereto, shall, at the written request of
any party, be determined by reference to a single neutral referee to be selected
by the parties, who shall be a retired state or federal judge with at least five
years of judicial experience in civil matters. In the event that the parties
cannot agree upon a referee, the referee shall be appointed by the court. The
parties shall equally bear the fees and expenses of the referee unless the
referee otherwise provides in the statement of decision. Except as provided in
this Agreement, the reference shall be conducted pursuant to California law.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
"Trustee": /s/ ▇. ▇. ▇▇▇▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, as Trustee of
The ▇▇▇▇▇▇▇▇▇ 1980 Revocable Trust
"Beacon": BEACON EDUCATION MANAGEMENT
LLC
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Title: CFO
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