ABSOLUTE CONTINUING GUARANTY AGREEMENT
Exhibit 10.3
This undertaking and agreement (hereinafter referred to as this “Guaranty”) is made by
XXXXXX X. XXXXXXXX (hereinafter referred to as “Guarantor,” whether one or more) in favor of FIRST
SAVINGS BANK, F.S.B. (hereinafter referred to as “Lender”) in consideration of the credit
accommodations described in this Guaranty made or to be made by Lender to LIGHTYEAR NETWORK
SOLUTIONS, LLC, a Kentucky limited liability company (hereinafter referred to as “Borrower”). This
Guaranty has the following terms:
1. Credit Agreement – Consideration. Borrower has executed a promissory note (hereinafter
referred to as the “Note”) in the original principal amount of $1,000,000.00, dated March 17, 2010,
as Loan No. 0000000000. Lender has agreed to extend the loan evidenced by the Note (hereinafter
referred to as the “Loan”) to Borrower, subject to the execution by Guarantor and delivery to
Lender of this Guaranty. This guaranty is made by Guarantor in consideration of Lender’s agreement
to extend the Loan together with certain collateral documents securing same (hereinafter referred
to, collectively, as the “Credit Documents”).
2. Certain Definitions. The terms “Commitment”, “Event of Default”, and “Maturity Date” are
used in this Guaranty as those terms are defined in the Credit Documents. The term “Obligations”
is used in this Guaranty to mean all of the indebtedness and other obligations of Borrower in favor
of Lender of every type and description, direct or indirect, absolute, or contingent, due or to
become due, now existing or hereafter arising, including but not limited to Borrower’s obligations
(i) to repay the principal of the Loan, (ii) to pay the accrued interest on the Loan, and (iii) to
pay the reasonable attorney’s fees plus the other costs and expenses of Lender relating in any
manner to the Loan after an Event of Default has occurred, and this term also includes (A) any
advances under the Note which were made after the Maturity Date and (B) all other Obligations
incurred pursuant to the terms of any Credit Documents, regardless of whether any such Obligations
arose on account of any renewal, extension or restructuring of any credit facility or on account of
any amendment to or modification of any Credit Documents.
3. Amount of Liability Under the Guaranty. Guarantor unconditionally guarantees the full and
prompt payment of all of the Obligations when they become due, whether at scheduled maturity or at
maturity by virtue of acceleration on account of an Event of Default. This Guaranty specifically
includes interest thereon after maturity at the post-maturity rate or rates specified in the Credit
Documents. Interest at the post-maturity rate or rates described in the immediately preceding
sentence shall be payable under this Guaranty until all Obligations have been paid and satisfied in
full, even if a petition in bankruptcy involving Borrower has been filed and such interest is not
recoverable from Borrower’s bankruptcy estate. Guarantor further agrees to pay to Lender an amount
equal to all reasonable attorney’s fees plus all other costs and expenses paid or incurred by
Lender after the occurrence of an Event of Default in endeavoring to enforce this Guaranty, whether
or not successful. Notwithstanding any other provision herein to the contrary, Lender expressly
understands and agrees that, between Guarantor and J. Xxxxxxx Xxxxxxxxx, III (hereinafter referred
to as “Xxxxxxxxx”), this Guaranty shall be secondary to that certain Absolute Continuing Guaranty
Agreement with respect to the Loan executed by Xxxxxxxxx, such that Xxxxxxxxx shall be primarily
liable to Lender for the obligations under the Loan and Guarantor shall be secondarily liable to
Lender for the obligations under the Loan. However, such arrangement between Guarantor and
Xxxxxxxxx shall not affect, prevent, or otherwise impair Lender in seeking recovery against
Guarantor and Xxxxxxxxx, together or separately, to recover any amount due under the Loan.
4. Guaranty Absolute and Continuing: Certain Prospective Consents and Waivers. This Guaranty
shall be an absolute and unconditional guaranty of prompt payment, and shall continue as to all
Obligations hereafter arising without any further action on the part of Lender, Borrower, or
Guarantor. This guaranty shall remain in full force and effect until all of the Obligations have
been satisfied in full. Guarantor’s liability under this Guaranty shall not be limited or otherwise
affected by any limitation on Borrower’s liability for any of the Obligations that is contained in
any Credit Documents or that is effective by operation of law or otherwise. Guarantor hereby waives
all set-offs, claims, counterclaims (whether compulsory or permissive), and defenses of every kind
and nature that could be asserted by either Borrower or Guarantor, whether now existing or
hereafter arising. Guarantor’s obligations under this Guaranty shall not be affected or impaired by
any irregularity, invalidity, or unenforceability of any Credit Documents or by any failure,
negligence, or omission on the part of Lender to (i)
perfect, continue perfection, protect, or realize upon any collateral securing any of the
Obligations or (ii) to elect or exhaust any other remedy available to Lender following the
occurrence of an Event of Default. Guarantor hereby consents prospectively and agrees that Lender
may from time to time, without notice to Guarantor and without affecting Guarantor’s liability
under this guaranty:
a. obtain a lien, security interest, or other encumbrance in any property to secure
any of the Obligations;
b. obtain the primary or secondary liability of any persons and any entities in
addition to Borrower and Guarantor with respect to any of the Obligations;
c. extend or renew any of the Obligations for any number of periods beyond their
original due dates;
d. release or compromise the liability of Borrower and any other persons and entities
which are now or which may hereafter become primarily or secondarily liable with respect to
any of the Obligations, whether or not Lender explicitly reserves its rights against
Guarantor or under this Guaranty;
e. release or impair, and permit Borrower to release or impair, any lien, security
interest or other encumbrance which Lender now has or may hereafter obtain in any property
securing any of the Obligations, and Lender may also permit any substitution or exchange of
any such property;
f. proceed against Guarantor for payment of the Obligations, whether or not Lender
shall have attempted to liquidate or sell any collateral securing any of the Obligations or
shall have proceeded against Borrower or any other person or entity primarily or
secondarily liable with respect to any of the Obligations;
g. apply amounts received by Lender to the Obligations in such order as Lender may
choose in its sole discretion;
h. amend, alter, or modify the terms of the Credit Documents from time to time in any
material particulars, including but not limited to increasing the interest rate ant the
amount of the monthly installment required for any Obligation; and
i. extend loans and other credit accommodations to Borrower in addition to the Loan
and increase the maximum amount which may be loaned to Borrower under the Loan.
5. Waiver of Guarantor’s Equitable Rights. Until all of the Obligations have been paid and
satisfied in full:
a. Guarantor shall have no right of exoneration, indemnity, reimbursement, or
contribution from Borrower or any other person or entity primarily or secondarily liable
with respect to any of the Obligations (any such other person or entity is referred to in
this Guaranty as a “Co-Obligor”) or from the property of Borrower or any Co-Obligor; and
b. Guarantor waives any right of subrogation to the rights of Lender against Borrower
and against any Co-Obligor or the property of Borrower or any Co-Obligor which would
otherwise arise by virtue of any payment made by Guarantor to Lender on account of this
Guaranty;
whether any such right of exoneration, indemnity, reimbursement, contribution or subrogation would
otherwise arise by virtue of contract or as a matter of law or equity. Guarantor agrees that (i)
until all of the Obligations have been paid and satisfied in full and the Commitment shall have
expired, Guarantor will not attempt to exercise or accept the benefits of any such right and (ii)
should Guarantor receive any payment or distribution of money or other
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property on account of any such right despite the provisions of this Section 5, such money or other
property shall be held in trust by Guarantor for the benefit of Lender and shall immediately be
delivered to Lender in the same form as received, with the addition only of such endorsements or assignments as may be
necessary to perfect the title of this Lender thereto, for application to the Obligations. The
provisions of this Section 5 will be effective even though Guarantor may have paid to Lender the
maximum amount for which Guarantor is liable under the terms of this Guaranty.
6. Additional Prospective Waivers. Guarantor waives: (i) notice of the acceptance of this
Guaranty by Lender, (ii) notice of the existence and creation of all or any of the Obligations and
any limitations on Borrower’s liability for such Obligations, (iii) notice of nonpayment of any of
the Obligations or of the occurrence of any other Event of default, (iv) the waiver of any Event of
Default and any forbearance of every kind which may be granted by Lender in its sole discretion,
(v) demand for payment by Lender upon Borrower, (vi) the filing of any action or proceeding of any
kind involving Borrower or any Co-Obligor or any part of their respective property with respect to
the Obligations, as well as any diligence by Lender in the collection of the Obligations or in the
protection of or realization upon any collateral for the Obligations, (vii) presentment for
payment, protest, or notice of protest for any Obligation, as well as notice thereof, (viii) notice
of non-performance under the Note evidencing the Obligation, (ix) notice of changes in Borrower’s
financial condition or the status of any of the Obligations, and (x) disposal of any of the
collateral in a commercially reasonable manner.
7. Representations of Guarantor as to Material Facts: Disclaimer of Lender.
Guarantor represents to
Lender that Guarantor has had an opportunity to make sufficient inquires of Borrower and its
management and that Guarantor has had an opportunity to have unfettered access to review all of the
material facts related to Borrower, the Obligations, and any existing Credit Documents and other
documents and instruments providing security or support for any of the Obligations. Based on such
representations, Guarantor agrees that Lender does not and shall not have any responsibility to
disclose to Guarantor any fact which is known by Lender and which may or may not be actually known
by Guarantor, even if any such fact might materially increase Guarantor’s risk of liability under
this Guaranty.
8. Reinstatement of Liability Under this Guaranty. If any amount is paid to
Lender by Borrower, any
Co-Obligor, or by any other person or entity and is applied by Lender to the satisfaction of any of
the Obligations, but subsequently is returned by Lender to Borrower, such Co-Obligor or such other
person or entity (including but not limited to a trustee in bankruptcy or other legal
representative of Borrower, such Co-Obligor or such other party) by virtue of a claim that such
payment constituted an avoidable preference or fraudulent transfer under the Bankruptcy Code, the
IUFTA, or under any Other Applicable Law, whether such amount is returned by Lender under court
order or pursuant to settlement of the preference or fraudulent transfer claim involving such
amount, then this Guaranty shall be automatically and irrevocably reinstated in an amount equal to
the amount returned by Lender as though such payment to Lender had never been made. The provisions
of this Section 8 shall apply in all such cases, notwithstanding any intervening revocation,
termination or cancellation of this Guaranty, or the return of any Credit Documents or any other
instrument or agreement evidencing any of the reinstated Obligations.
9. Revocation Survival of Pre-Revocation Consents and Waivers. Guarantor may not revoke this
Guaranty for any reason, and this Guaranty shall not terminate because of the death, incompetence,
or dissolution of Guarantor, until Lender has actually received a written notice of revocation
executed by Guarantor or its duly authorized representative or Lender has actually received a
written notice or termination executed by the dully authorized personal representative of Guarantor
which, in either case, must be delivered to Lender in strict compliance with the notice
requirements contained in Section 14. Any such written notice of revocation or termination shall
be effective upon its receipt by Lender as to new credit facilities extended by Lender to Borrower
after such receipt, but such notice shall not be effective as to any Obligations that are in
existence on the date of Lender’s receipt of any such notice (hereinafter referred to,
collectively, as the “Existing Obligations”). The guaranty of all Existing Obligations under the
terms of this Guaranty shall continue unaffected by any such notice and Lender may make additional
advances permitted under any Credit Documents for Existing Obligations prior to the maturity of the
Loan, which advances shall also become part of the Obligations guaranteed by this Guaranty. Each
consent and each waiver contained in this Guaranty shall survive the revocation or termination
hereof with respect to all Existing Obligations and Lender shall continue to have the right to rely
upon all such consents and all such waivers with respect to all Existing Obligations (including but
not limited to all renewals, extensions and material modifications thereof subsequent to the date
of revocation) as though no revocation or termination had
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occurred. Guarantor understands and agrees that a notice of revocation or termination under this
Section 9 may constitute an Event of Default, entitling Lender to accelerate all Obligations and
then demand payment under this Guaranty.
10. Financial Information. So long as this Guaranty is in effect, Guarantor shall furnish
promptly to Lender: (a) annual financial statements, signed and certified by Guarantor, within
ninety (90) days of the end of the calendar year; and (b) copies of executed 2009 tax returns
within thirty (30) days of the completion thereof.
11. Terms Binding on Representatives and Successors: Assignments and Participations. All of
the terms of this Guaranty shall be binding upon Guarantor and upon Guarantor’s legal
representatives and successors, including without limitation, the survival of all prospective
consents and waivers after revocation or termination of this Guaranty as provided in Section 9.
All of the terms of this guaranty shall inure to the benefit of Lender’s successors, assigns and
transferees. Lender may, without notice to Borrower or Guarantor, sell, assign, or otherwise
transfer (each hereinafter referred to as a “Transfer”) all or any portion of the Obligations and
any participations therein. Upon any Transfer, the transferee of Lender shall have the right to
enforce this Guaranty directly against Guarantor to the extent of the transferee’s interest as
fully as if the transferee were specifically named in this Guaranty, but Lender shall have the
superior and unimpaired right to enforce this Guaranty directly against Guarantor, except to the
extent that Lender has expressly relinquished such right in the Transfer.
12. Representations and Warranties. In order to induce Lender to accept this Guaranty and to
make the Loans to Borrower, Guarantor represents and warrants to Lender that: (i) Guarantor resides
in Jefferson County, Kentucky (ii) this Guaranty is the legal, valid, and binding obligation of
Guarantor, enforceable against Guarantor in accordance with its terms, (iii) there are no
conditions precedent to the validity and enforceability of this Guaranty, and (iv) the person
delivering this Guaranty to Lender is duly authorized to do so.
13. Waiver – Amendments. No delays on the part of Lender in the exercise of any right, power
or remedy relating to this Guaranty shall operate as a waiver thereof, nor shall any single or
partial exercise by Lender of any right, power or remedy preclude any other or further exercise
thereof, or the exercise of any other right, power or remedy. No amendment or modification of any
of the provisions of this Guaranty, nor any waiver or consent with respect to any of Lender’s
rights or Guarantor’s obligations to Lender under this guaranty, shall be effective unless such
amendment, modification, or waiver is in writing and is signed by Lender.
14. Notices. Any notice given under or with respect to this Guaranty to Guarantor or Lender
shall be in writing and, if delivered by had or sent by overnight courier service, shall be deemed
to have been given when delivered and, if mailed, shall be deemed to have been given five (5) days
after the date when sent by registered or certified mail, postage prepaid, and addressed to
Guarantor or Lender at its address shown below, or at such other address as Guarantor or Lender
may, by written notice to the other party to this Guaranty, have designated as its address for such
purpose. The addresses referred to are as follows:
| As to Guarantor: | Xxxxxx X. Xxxxxxxx 0000 Xxxxxx Xxx. Xxxxxxxxxx, XX 00000 |
|||||
| As to Lender: | First Savings Bank, F.S.B. 000 Xxxx Xxxxx & Xxxxx Xxxxxxx Xxxxxxxxxxx, Xxxxxxx 00000 |
|||||
| Attn.: Mr. Xxx Xxxxx |
15. Severability. If any provision of this Guaranty is determined to be illegal or
unenforceable, such provision shall be deemed to be severable from the balance of the provisions of
this Guaranty and the remaining provisions shall be enforceable in accordance with their terms.
16. Waiver of Jury Trial. Guarantor and Lender, after consulting or having had the opportunity
to consult with counsel, knowingly, voluntarily, and intentionally waive any right either of them
may have to a trial by
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jury in any litigation based upon or arising out of this Guaranty or any related instrument or
agreement or any of the transactions contemplated by this Guaranty or any course of conduct,
dealing, statements, whether oral or written, or actions of either of them. Neither Guarantor nor
Lender shall seek to consolidate, by counterclaim or otherwise, any action in which a jury trial
has been waived with any other action in which a jury trial cannot be or has not been waived.
These provisions shall not be deemed to have been modified in any respect or relinquished by either
Guarantor or Lender except by a written instrument executed by both of them.
17. Governing Law – Consent to Jurisdiction. This Guaranty is made under and will be governed
in all cases by the substantive laws of the State of Indiana, notwithstanding the fact that Indiana
conflicts of law rules might otherwise require the substantive rules of law of another jurisdiction
to apply. Guarantor consents to the jurisdiction of any state or federal court located within
Xxxxx or Xxxxx County, Indiana, and waives personal service of any and all process upon Guarantor.
All service of process may be made by messenger, by certified mail, return receipt requested, or by
registered mail directed to Guarantor at the address stated in Section 14. Guarantor waives any
objection which Guarantor may have to any proceeding commenced in a federal or state court located
within Xxxxx or Xxxxx County, Indiana, based upon improper venue or forum non conveniens. Nothing
contained in this Section shall affect the right of Lender to serve legal process in any other
manner permitted by law or to bring any action or proceeding against Guarantor or its property in
the courts of any other jurisdiction.
18. Superseding of Prior Agreements. This Guaranty supersedes all previous agreements and
commitments made by Lender and Guarantor with respect to the Obligations and all other subjects of
this Guaranty, including, without limitation, any oral or written proposals or commitments made or
issued by Lender.
19. Multiple Guarantors. If more than one individual signs this Guaranty, or any other
individual signs any other Guaranty in connection with the Note or the Loan, the liability of all
individuals who sign shall be joint and several as to all of the Obligations.
[SPACE INTENTIONALLY BLANK; SIGNATURES ON FOLLOWING PAGE]
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IN WITNESS WHEREOF, Guarantor hereby executes and delivers this Absolute Continuing Guaranty
Agreement to Lender effective on this 17th day of March, 2010.
| /s/ Xxxxxx X. Xxxxxxxx | ||||
| Xxxxxx X. Xxxxxxxx | ||||
STATE OF
|
) | |||||
| ) | SS: | |||||
COUNTY OF
|
) |
BEFORE ME, the undersigned, a Notary Public in and for the above-named County and State, this
day of March, 2010, personally appeared Xxxxxx X. Xxxxxxxx, and acknowledged the execution of
the foregoing Absolute Continuing Guaranty Agreement, and affirmed, under oath, that the
representations contained herein are true.
WITNESS my hand and notarial seal.
My Commission expires:
|
Notary Public | |
| Printed Name Resident of County |
Prepared by:
Xxxxx X. Xxxx
XXXX & XXXXX, LLC
0000 Xxxxxxxxxxx Xxxx
Xxx Xxxxxx, Xxxxxxx 00000
(000) 000-0000
XXXX & XXXXX, LLC
0000 Xxxxxxxxxxx Xxxx
Xxx Xxxxxx, Xxxxxxx 00000
(000) 000-0000
