SECOND MODIFICATION OF NOTE
Exhibit
10.4
THIS SECOND MODIFICATION OF NOTE
(hereinafter referred to as the “Second Modification”) is executed this 10th day of
November, 2010, but effective as of March 17, 2010, by and
between: (i) LIGHTYEAR NETWORK SOLUTIONS, LLC, a Kentucky limited
liability company, having an address of 0000 Xxxxxxxxx Xxxxxxx, Xxxxxxxxxx,
Xxxxxxxxx Xxxxxx, Xxxxxxxx 00000 (hereinafter referred to as
“Borrower”); (ii) FIRST SAVINGS BANK, F.S.B., 000 Xxxx Xxxxx xxx Xxxxx Xxxxxxx,
Xxxxxxxxxxx, Xxxxx Xxxxxx, Xxxxxxx 00000 (hereinafter referred to as
“Lender”); and (iii) J. XXXXXXX XXXXXXXXX, III, and XXXXXX X. XXXXXXXX
(hereinafter referred to as “Guarantors”).
The parties agree and recite as
follows, which agreements and recitations constitute part of this Second
Modification:
a.
Lender is the holder of a
certain Promissory Note dated March 17, 2010, executed by Borrower in the
original principal amount of $1,000,000.00, and due and payable by March 30,
2011, as Loan No. 0000000000, which was modified and amended by that certain
Modification of Note dated August 3, 2010 (hereinafter referred to,
collectively, as the “Note”).
b.
The Note is presently
secured, inter alia, by
the following:
(i) a
certain Security Agreement executed by Borrower dated March 17, 2010
(hereinafter referred to as the “Security Agreement”);
(ii) a
certain Lockbox and Account Control Agreement executed by Borrower dated March
17, 2010 (hereinafter referred to as the “Control Agreement”); and
(iii) certain
other security instruments which may have been executed in connection with, or
as security for, the Note.
The Note,
Security Agreement, and Control Agreement, together with such other financing
statements, documents, and instruments which may have been executed in
connection with, or as security for, any of the foregoing, shall hereinafter be
sometimes collectively referred to as the “Loan Documents”.
c.
Borrower has requested
that Lender makes certain additional changes to the payment schedule reflected
in the Note, all as more particularly set out hereinbelow.
d.
Lender has agreed to
certain such changes requested by Borrower on the condition that Borrower
executes this Second Modification and any other necessary documents required by
Lender in order to accurately reflect and memorialize the actual agreement of
the parties as to the change in the payment schedule in the
Note.
e.
There is a current
principal balance due under the Note in the amount of $ 542,652.00 .
f.
Terms used herein
with their initial letters capitalized and not otherwise defined herein shall
have the meanings given to such terms in the Loan Documents.
NOW, THEREFORE, In consideration of the
mutual covenants and promises of the parties hereto, and other valuable
consideration, receipt and sufficiency of which are hereby mutually
acknowledged, the parties hereto covenant and agree as follows:
SECTION
1
MODIFICATION
OF NOTE
The Note is hereby modified, to reflect
the following:
The section of the Note (as heretofore
modified) designated as “Payment Schedule” which reads as follows:
PAYMENT
SCHEDULE: Maker shall make payments to Bank on the Note as
follows:
(a) beginning
on April 30, 2010, and continuing on the 30th day of
each month thereafter (or the last day of the month in the month of February) up
through and including June 30, 2010, Maker shall make monthly payments of all
accrued but unpaid interest on this Note as of said payment date;
(b) beginning
on July 30, 2010, and continuing on the 30th day of
each month thereafter (or the last day of the month in the month of February)
until the Maturity Date, Maker shall make monthly payments of all accrued but
unpaid interest on this Note as of said payment date PLUS monthly principal
payments in the amount of $111,112.00 each, unless and until the outstanding
principal balance of this Note is paid in full;
(c) in
addition to the payment described hereinabove, Maker shall, BEGINNING NO LATER
THAN OCTOBER 30, 2010, apply to payment of the principal balance of this Note
fifty percent (50%) of all net proceeds in excess of $1,000,000.00 and up to
$2,000,000.00 from the sale of equity securities in Maker’s parent company,
Libra Alliance Corporation, unless and until the outstanding principal balance
of this Note is paid in full. For purposes of clarity, if the proceeds
from said sale of equity securities is less than $1,000,000.00, Maker shall make
no payment under this Section (c); if the proceeds from said sale of equity
securities is more than $1,000,000.00, Maker shall apply as a payment to
principal 50% of the proceeds received in excess of $1,000,000.00 up to a
maximum payment under this Section (c) of $500,000.00;
2
(d) any
late payment charges or other costs, expenses, or charges due under this Note or
any other document executed in connection herewith shall be due and payable
immediately upon notice to Maker from Bank (except that Maker’s obligation to
pay any late payment charge hereunder shall not be dependent upon or require
notice from Bank); and
(e) the
remaining principal balance of this Note, if any, together with all interest and
other sums due hereunder shall be due and payable on the Maturity
Date.
All
payments will be made to Bank at its address described above and shall be
collected in funds in lawful currency of the United States of America. All
payments and prepayments on this Note shall be applied first to expenses or
charges due hereunder, and then to the payment of accrued interest hereunder,
and then to principal. On the Maturity Date, the entire principal balance
remaining due, together with any unpaid interest and other amounts due under
this Note, shall be paid in full.
is hereby deleted and replaced in its entirety
with the following:
PAYMENT
SCHEDULE: Maker shall make payments to Bank on the Note as
follows:
(a) beginning
on April 30, 2010, and continuing on the 30th day of
each month thereafter (or the last day of the month in the month of February) up
through and including June 30, 2010, Maker shall make monthly payments of all
accrued but unpaid interest on this Note as of said payment date;
(b) beginning
on July 30, 2010, and continuing on the 30th day of
each month thereafter (or the last day of the month in the month of February)
until the Maturity Date, Maker shall make monthly payments of all accrued but
unpaid interest on this Note as of said payment date PLUS monthly principal
payments in the amount of $111,112.00 each, unless and until the outstanding
principal balance of this Note is paid in full;
3
(c) any
late payment charges or other costs, expenses, or charges due under this Note or
any other document executed in connection herewith shall be due and payable
immediately upon notice to Maker from Bank (except that Maker’s obligation to
pay any late payment charge hereunder shall not be dependent upon or require
notice from Bank); and
(d) the
remaining principal balance of this Note, if any, together with all interest and
other sums due hereunder shall be due and payable on the Maturity
Date.
All
payments will be made to Bank at its address described above and shall be
collected in funds in lawful currency of the United States of America. All
payments and prepayments on this Note shall be applied first to expenses or
charges due hereunder, and then to the payment of accrued interest hereunder,
and then to principal. On the Maturity Date, the entire principal balance
remaining due, together with any unpaid interest and other amounts due under
this Note, shall be paid in full.
SECTION
2
NO
IMPAIRMENT OF SECURITY
Nothing herein contained shall impair
the security now held for the indebtedness evidenced in the Loan Documents, as
the same may be modified and amended by this Second Modification, or alter,
waive, annul, vary, or affect any provision, condition, or covenant therein or
in the Note, Security Agreement, Control Agreement, or any other Loan Document,
except as affected by the Second Modification herein
provided, nor affect or impair any rights, powers, or remedies under the Note
Security Agreement, and Control Agreement, it being the intent of the parties
hereto that such documents and the indebtedness evidenced thereby are hereby
confirmed and ratified by Borrower in all respects on and as of the date of this
Second Modification as if
executed on the date hereof (except as expressly modified hereby), and that all
security granted prior to the date hereof shall remain in full force and effect
and shall not be diminished, impaired, or released as a result
hereof.
SECTION
3
NO OTHER
MODIFICATION OF NOTE,
SECURITY
AGREEMENT, AND CONTROL AGREEMENT
Except as expressly provided and set
out herein, and as previously modified as set out herein, the Note, Security
Agreement, Control Agreement, and the Loan Documents shall be and remain
unmodified and are acknowledged by the parties to be in full force and
effect. This Second Modification may be executed in one or more
counterparts, each of which shall be deemed an original and taken together shall
constitute one and the same document.
4
SECTION
4
BINDING
EFFECT OF MODIFICATION
This Second Modification shall be
binding on the successors and assigns of the respective parties.
SECTION
5
GUARANTORS’
CONSENT
Guarantors join in this Second
Modification hereinbelow solely to evidence their consent to the modification
and provisions hereof.
IN WITNESS WHEREOF, the parties have
executed this Second Modification on this the 10th day of
November, 2010, but to be effective as of March 17, 2010.
|
“LENDER”
|
||
|
FIRST
SAVINGS BANK, F.S.B.
|
||
|
By:
|
/s/ Xxxxxx Xxxxx
|
|
| Xxxxxx Xxxxx, Vice President | ||
|
“BORROWER”
|
||
|
LIGHTYEAR
NETWORK SOLUTIONS, LLC,
|
||
|
a
Kentucky limited liability company
|
||
|
By:
|
/s/ J. Xxxxxxx Xxxxxxxxx,
III
|
|
| J. Xxxxxxx Xxxxxxxxx, III, CEO | ||
|
“GUARANTOR”
|
||
|
/s/ J. Xxxxxxx Xxxxxxxxx,
III
|
||
|
J.
Xxxxxxx Xxxxxxxxx, III
|
||
|
“GUARANTOR”
|
||
|
/s/ Xxxxxx X. Xxxxxxxx
|
||
|
Xxxxxx
X.
Xxxxxxxx
|
||
5
Prepared
by:
Xxxxx X.
Xxxx
XXXX
& XXXXX, LLC
0000
Xxxxxxxxxxx Xxxx
Xxx
Xxxxxx, Xxxxxxx 00000
(000) 000-0000
6
