ABSOLUTE CONTINUING GUARANTY AGREEMENT
This undertaking and agreement
(hereinafter referred to as this “Guaranty”) is made by J. XXXXXXX XXXXXXXXX,
III (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, INC., a Nevada corporation
(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
$2,000,000.00, dated January 21, 2011, as Loan No.
407010128651. 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 under the Loan, whether 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 arising under the
Loan 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 the Loan 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 when due, whether at scheduled maturity or at maturity by
virtue of acceleration on account of an Event of Default, of the principal of
and interest on and all other sums payable with respect to the Note of Borrower,
including but not limited to, costs of collection and expenses advanced with
respect to any collateral securing the Loan, made by Borrower to Lender, dated
of even date herewith, in the principal sum of $2,000,000, with interest at the
rate set forth in the Note (such Note, and the interest thereon and all other
sums payable with respect thereto are hereinafter collectively called the
“Obligations”). 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, as between Guarantor and Xxxxxx X. Xxxxxxxx (hereinafter referred to as
“Xxxxxxxx”), this Guaranty shall be primary to that certain Absolute Continuing
Guaranty Agreement with respect to the Loan executed by Xxxxxxxx, such that
Xxxxxxxx shall be secondarily liable to Lender for the obligations under the
Loan with respect to the Guarantor and Guarantor shall be primarily liable to
Lender for the obligations under the Loan with respect to
Xxxxxxxx. However, such arrangement between Guarantor and Xxxxxxxx
shall not affect, prevent, or otherwise impair Lender in seeking recovery
against Guarantor and Xxxxxxxx, 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, at which time Lender shall
terminate this Guaranty. 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 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
and 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;
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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 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 the 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 duly 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 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.
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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 Loan 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 and Guarantor.
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: J.
Xxxxxxx Xxxxxxxxx, III
00000 Xxxxxxxxxx Xxxxxx
Xxxxx
Xxxxxxxxxx,
Xxxxxxxx 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 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.
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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
obligation of Lender to serve legal process in any manner permitted by law or
the right of Lender 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 21st day
of January, 2011.
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/S/ J. Xxxxxxx Xxxxxxxxx ,
III
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|
J.
Xxxxxxx Xxxxxxxxx, III
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STATE
OF INDIANA
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)
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) SS:
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|
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COUNTY
OF XXXXX
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)
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BEFORE ME, the undersigned, a Notary
Public in and for the above-named County and State, this 21st day of
January, 2011, personally appeared J. Xxxxxxx Xxxxxxxxx, III, 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.
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My
Commission expires:
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Notary
Public
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||
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Printed
Name
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Prepared
by:
Xxxxx X.
Xxxx
XXXX
& XXXXX, LLC
0000
Xxxxxxxxxxx Xxxx
Xxx
Xxxxxx, Xxxxxxx 00000
(000)
000-0000
S-1
