SECURITY AGREEMENT
Lightyear
Network Solutions, LLC ("Debtor"), for valuable consideration, receipt of which hereby is acknowledged, hereby
transfers, assigns and pledges to Central Bank of Jefferson County, Inc. ("Secured Party"), and grants
to Secured Party a security interest in, the following collateral, wherever located, now existing and hereafter arising or coming
into existence (the "Collateral") (check all that apply):
| 1. | x All
of Debtor's accounts ("Accounts"), which term includes Debtor's accounts, receivables, health care insurance receivables,
contract rights, contracts, notes, drafts, acceptances, winnings in a lottery or other game of chance operated, sponsored, or authorized
by a state or other governmental subdivision, bills, acceptances, choses in action, and other forms of monetary obligations at
any time owing to Debtor; |
| | | |
| 2. | x All
of Debtor's inventory ("Inventory"), which term includes all goods, merchandise and other personal property, which
are held for sale or lease or are furnished or to be furnished under a contract of service and/or raw materials, parts, finished
goods, work in process and materials used or consumed or to be used or consumed in Debtor's business or in the processing, packaging,
shipping or advertising thereof; |
| | | |
| 3. | x All
of Debtor's equipment and fixtures ("Equipment"), which term includes all of Debtor's machinery, parts, tools,
fixtures, furniture, and accessories, together with all attachments, additions and accessions thereto, and added and substituted
parts, equipment and repairs now or hereafter placed upon such property, whether because of necessary repairs or otherwise; |
| | | |
| 4. | x
All
of
Debtor's
intellectual
property,
contract
rights
and
other
general
intangibles
("General
Intangibles"),
including
but
not
limited
to
(i)
all
contracts,
(ii)
all
judgments,
patents,
trademarks,
trade
or
business
names,
service
marks,
logos,
copyrights,
trade
secrets,
plans,
blueprints,
licenses,
permits,
tax
or
other
refunds,
software,
programs,
inventions,
business
or
technical
data,
processes,
mailing
and
customer
lists,
books
and
records,
and
goodwill,
(iii)
payment
intangibles,
(iv)
all
rights,
applications,
continuations,
renewals,
substitutions,
improvements,
modifications
and
extensions
in
any
manner
related
thereto,
and
(v)
all
proceeds
and
products
thereof,
including
but
not
limited
to
all
license
royalties,
payments
made
under
insurance
policies,
and
proceeds
of
infringement
suits
and
any
other
suits; |
| | | |
| 5. | x All
of Debtor's chattel paper, including tangible chattel paper, electronic chattel paper, or any hybrid thereof ("Chattel
Paper"); |
| | | |
| 6. | x All
of Debtor's investment property, including all securities, security entitlements, securities accounts, commodity contracts, and
commodity accounts of or maintained for the benefit of Debtor, but excluding any investment property that was previously subject
to pledge agreement given to secure the obligations of Debtor to a third party and of which Secured Party has notice in writing
prior to the execution of this Agreement ("Investment Property"); |
| | | |
| 7. | x All
of Debtor's instruments, including all promissory notes ("Instruments"); |
| | | |
| 8. | x
All of Debtor's documents, including warehouse receipts, bills
of lading and other documents of title ("Documents"); |
| | | |
| 9. | ¨
All
of
Debtor's
rights
to
payment
or
performance
under
letters
of
credit
including
rights
to
proceeds
of
letters
of
credit
("Letter
of
Credit
Rights"),
and
all
guaranties,
endorsements,
liens,
other
contingent
obligations
or
supporting
obligations
of
any
person
securing
or
supporting
the
payment,
performance,
value
or
liquidation
of
any
of
the
foregoing
(collectively,
with
the
Letter
of
Credit
Rights,
the
"Supporting
Obligations"); |
| | | |
| 10. | ¨
The
Debtor's
commercial
tort
claim
described
as
follows:
,
as
the
same
may
be
supplemented
from
time
to
time
("Commercial
Tort
Claims"); |
| 11. | ¨ The
Debtor's motor vehicles or other property for which a certificate of title has been issued by a state government, which are
more fully described as follows (individually and collectively, the "Motor Vehicles"): |
| 12. | x All
moneys, credits and other property of any nature whatsoever of Debtor now or hereafter in the possession of, in transit to or from,
under the custody or control of, or on deposit with (whether held by Debtor individually or jointly with another) Secured Party,
including but not limited to cash collateral accounts; and |
| | | |
| 13. | x The
proceeds (including insurance proceeds) and products of the foregoing in whatever form the same may be,
for the purpose of securing
the payment to Secured Party of all of the following ("Obligations"): all loans, advances, debts, liabilities, obligations,
covenants and duties owing to Secured Party from Debtor of any kind or nature, present or future, whether or not evidenced by any
note, guaranty or other instrument, including but not limited to those arising under: (i) the Commercial Note given by Debtor to
Secured Party dated 12/19/12 (the "Note"), and all of the documents executed in connection therewith, and (ii)
under any other agreement, instrument or document, whether or not for the payment of money, whether arising by reason of an extension
of credit, opening of a letter of credit, loan, guaranty, indemnification or in any other manner, whether direct or indirect (including
those acquired by assignment, participation, purchase, negotiation, discount or otherwise), absolute or contingent, joint or several,
due or to become due, now existing or hereafter arising and whether or not contemplated by Debtor or Secured Party on the date
hereof; and, as to all of the foregoing, including any amendments, modifications, or superceding documents to each of the foregoing;
and all charges, expenses, fees, including but not limited to reasonable attorneys' fees, and any other sums chargeable to Debtor
under any of the Obligations. This Agreement is in addition to any previous assignments or pledges, and such previous assignments
and pledges remain in full force and effect. |
In the event that no boxes are
checked above, Debtor will be deemed to have granted Secured Party a lien of items 1-9 inclusive and 12 and 13.
Debtor further warrants to and agrees
with Secured Party as follows:
| 1. | Preservation of Collateral. Debtor will keep the Collateral in good order and repair
at all times, will use same with reasonable care and caution, will not part with possession or ownership thereof nor lease or hire
out the Collateral without the written consent of Secured Party, and will exhibit the Collateral to Secured Party upon demand.
Debtor will promptly notify Secured Party of any Xxxx or damage to the Collateral. Debtor will not use, or permit the Collateral
to be used, in violation of any federal, state, county or municipal law or regulation or for any unlawful purpose whatsoever. |
| | | |
| 2. | Execution of Appropriate Documentation with Respect
to Collateral. |
| 2.1 | With respect to any and all of the Collateral, Debtor agrees to do and cause to be done all things
necessary or appropriate to perfect, maintain the priority of and keep in full force and effect the security interest granted by
Debtor to Secured Party, including, but not limited to, the prompt payment upon demand therefor by Secured Party of all fees and
expenses (including documentary stamp, excise or intangibles taxes) incurred in connection with the preparation, delivery, or filing
of any document or the taking of any action deemed necessary or appropriate by Secured Party to perfect, protect, or enforce a
security interest in any of the Collateral for the benefit of Secured Party, subject only to the liens to which Secured Party has
specifically consented in writing (the "Permitted Liens"). All amounts not so paid when due will be added to the Obligations
and (in addition to other rights and remedies resulting from such non-payment) will bear interest from the date of demand until
paid in full at the Default Rate. Debtor also authorizes Secured Party to file one or more financing statements, as deemed necessary
or desirable by Secured Party (including but not limited to any correction statements as set forth more fully in UCC Section 9-518),
which financing statements lists or otherwise describes the Collateral as consisting of all of Debtor's assets or words to that
effect, regardless of the actual description of the Collateral set forth in this Agreement. Debtor hereby ratifies any filing by
Secured Party that predates the date of this Agreement but that was intended to perfect the security interest granted hereby. |
| | | |
| 2.2 | In addition to the foregoing and not in limitation thereof, to the extent that Debtor has granted
Secured Party a lien on any of the following types of Collateral, then Debtor agrees to furnish Secured Party with properly executed
control agreements, registrar's certificates, issuer acknowledgements of Secured Party's interest in the Letter of Credit Rights,
and evidence of the placement of a restrictive legend on tangible chattel paper (and the tangible components of electronic Chattel
Paper), and will take all appropriate action acceptable to Secured Party sufficient to establish Secured Party's control of electronic
Chattel Paper (and the electronic components of hybrid Chattel Paper), as appropriate, with respect to Collateral in which either
(i) a security interest can be perfected only by control or such restrictive legending, or (ii) a security interest perfected by
control or accompanied by such restrictive legending will have priority as against a lien creditor, a purchaser of such Collateral
from Debtor, or a security interest perfected by any person not having control or not accompanied by such restrictive legending,
in each case in form and substance acceptable to Secured Party and sufficient under applicable law so that Secured Party will have
a security interest in all such Collateral perfected by control. |
| 2.3 | In addition to the foregoing and not in limitation thereof, Debtor agrees to deliver to
Secured Party, or, if Secured Party has specifically consented in each instance, to an agent or bailee of Secured Party who
has acknowledged such status in a properly executed control agreement, possession of all Collateral with respect to which
either a security interest can be perfected only by possession or a security interest perfected by possession will have
priority as against persons not having possession, and including in the case of Instruments, Documents, and Investment
Property in the form of certificated securities, duly executed endorsements or stock powers in blank, as the case may be, all
in form and substance acceptable to Secured Party, and subject only to Permitted Liens. |
| | | |
| 3. | Insurance. To the extent that Debtor has granted Secured Party a lien on either Inventory
or Equipment, or both, hereunder, Debtor will keep its insurable real and personal property insured with responsible insurance
companies against loss or damage by fire, windstorm and other hazards which are commonly insured against in an extended coverage
endorsement in an amount equal to not less than 90% of the insurable value thereof on a replacement cost basis and also maintain
public liability insurance in a reasonable amount. In addition, Debtor will maintain extended liability insurance covering its
operations of at least $1,000,000 and in a form and with companies reasonably satisfactory to Secured Party. Notwithstanding the
foregoing, such property insurance will at all times be in an amount so that Debtor will not be deemed a "co-insurer"
under any co-insurance provisions of such policies. All such insurance policies will name Secured Party as an additional insured
and, where applicable, as lender's loss payee under a loss payable endorsement satisfactory to Secured Party. All such policies
will be in form and substance satisfactory to Secured Party and will provide that ten (10) days' prior written notice must be given
to Secured Party before such policy is altered or cancelled. Schedules of all insurance of Debtor will be submitted to Secured
Party upon request. Such schedules will contain a description of the risks covered, the amounts of insurance carried on each risk,
the name of the insurer and the cost of such insurance to Debtor. Debtor will provide new schedules to Secured Party promptly to
reflect any change in insurance coverage. Debtor will deliver to Secured Party certificates representing such insurance policies
upon the execution hereof. All amounts payable in settlement of insurance losses may be applied, at Secured Party's option, to
the Obligations, or used to repair, replace or restore the Collateral. |
| 4. | Payment of Expenses by Secured Party.
At its option, Secured Party may discharge taxes, liens, security interests or such other encumbrances as may attach to the Collateral,
may pay for required insurance on the Collateral and may pay for the maintenance and preservation of the Collateral, as determined
by Secured Party to be necessary, and such expenditures will become a part of the Obligations. Debtor will reimburse Secured Party
on demand for any payment so made or any expense incurred by Secured Party pursuant to the foregoing authorization, and the Collateral
also will secure any advances or payments so made or expenses so incurred by Secured Party. |
| | | |
| 5. | Information. Debtor will furnish to Secured Party from time to time if and as requested
current lists of the Collateral, and, to the extent that it constitutes Collateral hereunder, including names and addresses of
account debtors and agings of Accounts; will continue to make on the books of Debtor appropriate entries evidencing the assignment
of book accounts to Secured Party and will xxxx Chattel Paper and Instruments to evidence the assignment thereof to Secured Party;
and, if and when requested by Secured Party from time to time, will furnish to it copies of all purchase orders, inventory lists,
xxxxxxxx, shipping orders, correspondence and other instruments or writings in any way evidencing or relating to the Collateral
or the proceeds thereof. Secured Party and its designated representatives and agents will have the right at all reasonable times
to examine, inspect, and audit the Collateral wherever located. |
| | | |
| 6. | Sale of Inventory. To the extent that Inventory is a part of the Collateral granted
hereunder, at any time prior to the occurrence of an Event of Default (as defined below), Debtor will have the right to process
and sell the Inventory in the regular course of its business at customary prices (but in no event may Debtor transfer any Inventory
in satisfaction of any debt). |
| | | |
| 7. | Receipt of Payment; Set off. Upon the occurrence of an Event of Default and in the
event that Debtor receives payment of or proceeds from any of the Collateral, including without limitation and to the extent that
it is included as Collateral hereunder, Accounts, monies, checks, notes, drafts, or any other items of payment, Debtor agrees that
Debtor will deliver to Secured Party the same in the form received by Debtor without commingling with any funds belonging to Debtor,
and promptly will deposit the same in a special collateral account with Secured Party. Upon the occurrence of an Event of Default,
Debtor authorizes Secured Party at any time without notice to appropriate and apply any balances, credits, deposits or accounts
or money of Debtor (held individually or with others) in its possession, custody or control or the possession, custody or control
of any Secured Party Affiliate to the payment of the Obligations, all of which may at all times be held and treated as additional
Collateral. |
| | | |
| 8. | Notification of Third Party Debtors.
Secured Party at any time after the occurrence of an Event
of Default, and without notice to Debtor, may notify any persons who are indebted to Debtor with respect to any of the Collateral
of the assignment thereof to Secured Party and may direct such account debtors to make payment directly to Secured Party of the amounts due. At the request of Secured Party after the occurrence of an Event of Default, Debtor will direct any persons who are indebted to Debtor with respect to any of the Collateral to make payment directly to Secured Party. Secured Party is authorized to give receipts to such account debtors for any such payments and the account debtors will be protected in making such payments to Secured Party. |
| 9. | Representations,
Warranties
and
Covenants.
Debtor
represents,
warrants
and
covenants
to
Secured
Party
that,
except
for
any
Permitted
Liens,
as
such
liens
are
set
forth
on
the
attached
Exhibit
A,
which
is
incorporated
by
reference
as
if
fully
set
forth
herein
and
as
such
term
is
defined
in
any
of
the
documents
executed
in
connection
with
the
Obligations:
(a)
Debtor
has
not
made
any
prior
sale,
pledge,
encumbrance,
assignment
or
other
disposition
of
any
of
the
Collateral
and
the
same
is
free
from
all
encumbrances
and
rights
of
set
off
of
any
kind,
and
Debtor
has
not
authorized
or
executed
any
other
action
or
record
that
would
have
given
any
other
person
any
right
to
any
of
the
Collateral;
(b)
except
as
herein
provided,
Debtor
will
not
hereafter
without
the
prior
written
consent
of
Secured
Party
sell,
pledge,
encumber,
assign
or
otherwise
dispose
of
any
of
the
Collateral
or
permit
any
right
of
set
off,
lien
or
security
interest
to
exist
thereon
except
to
Secured
Party;
(c)
Debtor
will
defend
the
Collateral
against
all
claims
and
demands
of
all
persons
at
any
time
claiming
the
same
or
any
interest
therein;
(d)
to
the
extent
that
Debtor
has
granted
Secured
Party
a
lien
thereon,
each
General
Intangible
is
genuine
and
enforceable
in
accordance
with
its
terms
and
Debtor
will
defend
the
same
against
all
claims,
demands,
set
offs
and
counterclaims
at
any
time
asserted;
(e)
to
the
extent
that
Debtor
has
granted
Secured
Party
a
lien
thereon,
at
the
time
any
Account
becomes
subject
to
this
Agreement,
such
Account
will
be
what
it
purports
to
be
and
a
good
and
valid
account
representing
a
bona
fide
sale
of
goods
or
services
by
Debtor
and
such
goods
will
have
been
shipped
to
the
respective
account
debtors
or
the
services
will
have
been
performed
for
the
respective
account
debtors,
and
no
Account
will
be
subject
to
any
claim
for
credit,
allowance
or
adjustment
by
any
account
debtor
or
any
set
off,
defense
or
counterclaim;
and
(f)
Debtor
is
not
involved
in
any
consignment
arrangement
with
regard
to
any
of
the
Collateral. |
| | | |
| 10. | Receivers. Upon or at any time after the occurrence of an Event of Default, Secured
Party may request the appointment of a receiver of the Collateral, and Debtor expressly consents to the appointment of such a receiver,
who will be entitled to a reasonable fee for so managing the Collateral. Such appointment may be made without notice, and without
regard to (i) the solvency or insolvency, at the time of application for such receiver, of the person or persons, if any, liable
for the payment of the Obligations; and (ii) the value of the Collateral at such time. Such receiver will have the power to take
possession, control, and care of the Collateral and to collect all accounts resulting therefrom. Notwithstanding the appointment
of any receiver, trustee, or other custodian, Secured Party will be entitled to the possession and control of any cash, or other
instruments at the time held by, or payable or deliverable under the terms of this Agreement to Secured Party. |
| 11. | Place of Business.
Debtor's state of formation is Kentucky, and Debtor
will not change its state of formation. Debtor's exact legal
name is Lightyear Network Solutions, LLC. Debtor (a)
now keeps and will continue to keep the Collateral at its principal
place of business, which is 0000 Xxxxxxxxx Xxxxxxx, Xxxxxxxxxx,
Xxxxxxxx 00000; and Debtor now keeps and will continue to keep
its books and records concerning the Collateral at its principal
place of business shown above and (b) represents that it has
no other place of business other than the following: . |
In the
five years preceding the date hereof, Debtor has not conducted business under any name other than its current name nor
maintained any place of business or any assets in any jurisdiction other than the following:______________________________________________________________________________________________
______________________________________________________________________________________________________
_________________________.
| 12. | Debtor's Consent. Debtor consents, with respect to any of the Collateral, to all
extensions or postponements of time of payment thereof or any other indulgences in connection therewith, to the acceptance of partial
payments thereon and to the settlement, compromise and adjustment thereof, all in such manner and at such time or times as Secured
Party deems advisable. |
| | | |
| 13.1 | Upon the occurrence of any of the following (herein referred to as an "Event of Default"):
(i) any Event of Default (as defined in any of the documents evidencing the Obligations), or (ii) any default under any of such
documents that do not have a defined set of "Events of Default," (iii) any representation or warranty made by Debtor
to Secured Party in this Agreement is false or erroneous in any material respect, or (iv) the failure of Debtor to observe or perform
any covenant or other agreement with Secured Party under this Agreement, Secured Party may exercise any one or more of the rights
and remedies granted pursuant to this Agreement or given to a secured party under applicable law, as it may be amended from time
to time, including but not limited to the right to take possession and sell, lease or otherwise dispose of the Collateral and,
at its option, operate, use or exercise any rights of ownership pertaining to the Collateral as the Secured Party deems necessary
to preserve the value and receive the benefits of the Collateral and notifying all persons subject to a control agreement who may
otherwise have possession or control of any of the Collateral and taking possession of any such Collateral. Upon the occurrence
of an Event of Default, Secured Party may. so far as Debtor can give authority therefor, enter upon any premises on which the Collateral
or any part thereof may be situated and take possession of and remove the same therefrom and gives permission to Secured Party
to conduct a sale of any or all of the Collateral, which sale may be conducted on any real property owned by Debtor without charge
or interference by Debtor. Secured Party may require Debtor to make the Collateral available to Secured Party at a place to be
designated by Secured Party that is reasonably convenient to both parties. Debtor waives all claims for damages by reason of any
seizure, repossession, retention, use, or sale of the Collateral under the terms of this Agreement. |
| 13.2 | The net proceeds arising from the disposition of the Collateral after deducting expenses incurred
by Secured Party will be applied to the Obligations in the order determined by Secured Party. If any excess remains after the discharge
of all of the Obligations, the same will be paid to Debtor. If after exhausting all of the Collateral, there should be a deficiency,
Debtor will be liable therefor to Secured Party, provided, however, that nothing contained herein will obligate Secured Party to
proceed against the Collateral prior to making a claim against Debtor or any other party obligated under the Obligations or prior
to proceeding against any other collateral for the Obligations. |
| | | |
| 13.3 | Whenever notice is required by law to be sent by Secured Party to Debtor of any sale or other disposition
of the Collateral, ten days written notice sent in accordance with the requirements of the applicable section of the Uniform Commercial
Code to Debtor at the address specified below, or at such other address as Debtor may furnish Secured Party in writing from time
to time for this purpose, will be reasonable. |
| 14. | Rights of Secured Party; Power of Attorney.
Debtor hereby irrevocably constitutes and appoints Secured
Party and any officer thereof, with full power of substitution, as its true and lawful attorney-in-fact with full irrevocable power
and authority in the place and stead of Debtor or in its name, from time to time in Secured Party's discretion, for the purpose
of carrying out the terms of this Agreement, to take any and all appropriate action and to execute any and all documents and instruments
which may be necessary or desirable to accomplish the purposes of this Agreement and, without limiting the generality of the foregoing,
Debtor hereby gives Secured Party the power and right, on behalf of Debtor, after an Event of Default, and without notice to or
assent by Debtor, to do the following: |
| | | |
| 14.1 | to receive payment of, endorse, and receipt for, any and all monies, claims and other amounts due
and to become due at any time in respect of or arising out of the Collateral; |
| | | |
| 14.2 | to commence and prosecute any suits, actions or proceedings at law or in equity in any court of
competent jurisdiction to collect any of the Collateral and to enforce any other right in respect of the Collateral; |
| | | |
| 14.3 | to settle, compromise or adjust any suit, action or proceeding described above, and, in connection
therewith, to give such discharges or releases as Secured Party may deem appropriate; and |
| | | |
| 14.4 | generally to sell, transfer, pledge, make any agreement with respect to or otherwise deal with
any of the Collateral as fully and completely as though Secured Party were the absolute owner thereof for all purposes, and to
do, at Secured Party's option, at any time, or from time to time, all acts and things which Secured Party deems necessary to protect
or preserve the Collateral and Secured Party's security interest and rights therein in order to effect the intent of this Agreement,
all as fully and effectively as Debtor might do. |
Debtor hereby
ratifies all that such attorneys in fact may lawfully do or cause to be done by virtue hereof. This power of attorney is a power
coupled with an interest, will be irrevocable and will terminate only upon payment in full of the Obligations and the termination
of this Agreement. The powers conferred upon Secured Party hereunder are solely to protect Secured Party's interests in the Collateral
and will not impose any duty upon it to exercise any such powers. Secured Party will have no obligation to preserve any rights
of any third parties in the Collateral. Secured Party will be accountable only for amounts that it actually receives as a result
of the exercise of such powers, and neither it nor any of its officers, directors, employees or agents will be responsible to Debtor
for any action taken or omitted to be taken in good faith or in reliance on the advice of counsel except for its own gross negligence
or willful misconduct.
| 15.1 | Waiver. No
delay or omission on the part of Secured Party to exercise
any right or power arising from any Event of Default
will impair any such right or power or be considered
a waiver of any such right or power or a waiver of any
such Event of Default or an acquiescence therein nor
will the action or non-action of Secured Party in case
of such Event of Default impair any right or power arising
as a result thereof or affect any subsequent default
or any other default of the same or a different nature. |
| | | |
| 15.2 | Notices. All
notices, demands, requests, consents or approvals and
other communications required or permitted hereunder
will be in writing, and, to the extent required by applicable
law, will comply with the requirements of the Uniform
Commercial Code then in effect, and will be addressed
to such party at the address set forth below or to such
other address as any party may give to the other in
writing for such purpose: |
| |
To Secured Party: |
Central Bank of Jefferson County, Inc. |
| |
|
0000 Xxxxxxxxxxx Xx. Xxxxx 000 |
| |
|
Xxxxxxxxxx, XX 00000 |
| |
|
Attn: Xxxx Xxxxxxxx, Vice President |
| |
|
|
| |
To Debtor: |
Lightyear Network Solutions, LLC |
| |
|
0000 Xxxxxxxxx Xxxxxxx |
| |
|
Xxxxxxxxxx, Xxxxxxxx 00000 |
All such communications, if
personally delivered, will be conclusively deemed to have been received by a party hereto and to be effective when so delivered;
if given by mail, on the fourth business day after such communication is deposited in the mail with first-class postage prepaid,
return receipt requested; or if sent by overnight courier service, on the day after deposit thereof with such service; or if sent
by certified or registered mail, on the third business day after the day on which deposited in the mail.
| 15.3 | Successors and
Assigns. This Agreement will be binding upon
and inure to the benefit of Debtor and Secured Party
and their respective successors and assigns, provided,
however, that Debtor may not assign this Agreement in
whole or in part without the prior written consent of
Secured Party and Secured Party at any time may assign
this Agreement in whole or in part. All references herein
to the "Debtor" and "Secured Party"
will be deemed to apply to Debtor and Secured Party
and their respective heirs, administrators, successors
and assigns. |
| | | |
| 15.4 | Modifications. No modification or waiver of any provision of this Agreement nor consent
to any departure by Debtor therefrom, will be established by conduct, custom or course of dealing; and no modification, waiver
or consent will in any event be effective unless the same is in writing and specifically refers to this Agreement, and then such
waiver or consent will be effective only in the specific instance and for the purpose for which given. No notice to or demand on
Debtor in any case will entitle Debtor to any other or further notice or demand in the same, similar or other circumstance. |
| | | |
| 15.5 | Appraisal. From time to time, but in any event no more often than once each calendar
year, Secured Parry may require a reappraisal of the market value of Equipment and/or Inventory to the extent that it comprises
Collateral hereunder, which appraisal will be paid for by Debtor. Such appraisal will be in form and content satisfactory to Secured
Party and be performed by an independent, certified appraiser selected by Secured Party. |
| | | |
| 15.6 | Joint and Several
Obligations. If this Agreement is executed by
more than one person or entity as the "Debtor,"
the obligations of such persons or entities hereunder
will be joint and several. Unless otherwise specified
herein, any reference to "Debtor" will mean
each such person or entity executing this Agreement
individually and all of such persons or entities collectively. |
| | | |
| 15.7 | Illegality. If fulfillment of any provision hereof or any transaction related hereto
or of any provision of this Agreement, at the time performance of such provision is due, involves transcending the limit of validity
prescribed by law, then ipso facto, the obligation to be fulfilled will be reduced to the limit of such validity; and if
any clause or provisions herein contained other than the provisions hereof pertaining to repayment of the Obligations operates
or would prospectively operate to invalidate this Agreement in whole or in part, then such clause or provision only will be void,
as though not herein contained, and the remainder of this Agreement will remain operative and in full force and effect. |
| | | |
| 15.8 | Continuing Agreement. This
is a continuing Agreement and will continue in effect
even though all or any part of the Obligations have
been paid in full and even though for a period of time
Debtor may not be indebted to Secured Party. |
| 15.9 | Gender, etc. Whenever used
herein, the singular number will include the plural, the plural the singular and the use of the masculine, feminine or neuter gender
will include all genders. |
| | | |
| 15.10 | Headings. The headings in this Agreement are for convenience only and will not limit
or otherwise affect any of the terms hereof. |
| | | |
| 15.11 | Liability of Secured Party.
Debtor hereby agrees that Secured Party will not be chargeable for any negligence, mistake, act or omission of any employee, accountant,
examiner, agent or attorney employed by Secured Party (except for their willful misconduct) in making examinations, investigations
or collections, or otherwise in perfecting, maintaining, protecting or realizing upon any lien or security interest or any other
interest in the Collateral or other security for the Obligations. |
| | | |
| 15.12 | Counterparts. This Agreement may be executed in any number of counterparts and by
different parties hereto in separate counterparts, each of which when so executed will be deemed to be an original and all of which
taken together will constitute one and the same agreement. Any party so executing this Agreement by facsimile transmission shall
promptly deliver a manually executed counterpart, provided that any failure to do so shall not affect the validity of the counterpart
executed by facsimile transmission. |
| | | |
| 15.13 | Definitions. Capitalized terms used herein and not otherwise defined will be given
the definitions set forth in the Uniform Commercial Code in force and effect in the State indicated in the Governing Law section
of this Agreement. |
| | | |
| 15.14 | Governing Law. This Agreement has been delivered and accepted at and will be deemed
to have been made at Louisville, Kentucky and will be interpreted and the rights and liabilities of the parties hereto determined
in accordance with the laws of the Commonwealth of Kentucky, without regard to conflicts of law principles. |
| | | |
| 15.15 | Jurisdiction. Debtor hereby irrevocably agrees and submits to the exclusive jurisdiction
of any state or federal court located within Jefferson County, Kentucky; provided that nothing contained in this Agreement will
prevent Secured Party from bringing any action, enforcing any award or judgment or exercising any rights against Debtor individually,
against any security or against any property of Debtor within any other county, state, or other foreign or domestic jurisdiction.
Secured Party and Debtor agree that the venue provided above is the most convenient forum for both Secured Party and Debtor. Debtor
waives any objection to venue and any objection based on a more convenient forum in any action instituted under this Agreement. |
| | | |
| 15.16 | Waiver
of
Jury
Trial.
THE
PARTIES
HERETO
EACH
WAIVE
ANY
RIGHT
TO
TRIAL
BY
JURY
IN
ANY
ACTION
OR
PROCEEDING
RELATING
TO
THIS
AGREEMENT,
ANY
DOCUMENTS
EXECUTED
IN
CONNECTION
WITH
THIS
AGREEMENT,
OR
ANY
TRANSACTION
CONTEMPLATED
IN
ANY
OF
SUCH
DOCUMENTS.
DEBTOR
AND
SECURED
PARTY
ACKNOWLEDGE
THAT
THE
FOREGOING
WAIVER
IS
KNOWING
AND
VOLUNTARY. |
| | Debtor acknowledges that Debtor has read and understood
all the provisions of this Agreement, including the waiver of jury trial, and has been advised by counsel as necessary or appropriate. |
Dated as of 12/19/12, and Debtor expressly
acknowledges and agrees that Exhibit A is incorporated by reference as if fully set forth herein.
| |
Lightyear Network Solutions, LLC |
| |
|
| |
/s/ Xxxxx Xxxxxxxxxxx |
| |
BY: Lightyear Network Solutions, Inc., Member |
| |
BY: Xxxxx Xxxxxxxxxx, CEO |
| |
|
| |
SECURED PARTY: |
| |
|
| |
Central Bank of Jefferson County, Inc. |
| |
|
| |
/s/ Xxxx Xxxxxxxx |
| |
Xxxx Xxxxxxxx, Vice President |
EXHIBIT A
"Permitted Liens" will mean:
| (i) | liens securing the payment of taxes, either not yet due or the validity of which is being contested
in good faith by appropriate proceedings, and as to which it has set aside on its books adequate reserves to the extent required
by generally accepted accounting principles; |
| (ii) | deposits under workers' compensation, unemployment insurance and social security laws, or to secure
the performance of bids, tenders, contracts (other than for the repayment of borrowed money) or leases, or to secure statutory
obligations or surety or appeal bonds, or to secure indemnity, performance or other similar bonds in the ordinary course of business; |
| (iii) | liens imposed by law, such as carriers' warehousemen's or mechanics' liens, incurred by it in good
faith in the ordinary course of business, and liens arising out of a judgment or award against it with respect to which it will
currently be prosecuting an appeal, a stay of execution pending such appeal having been secured; |
| (iv) | liens in favor of Secured Party; and attachment, judgment, and similar liens provided that execution
is effectively stayed pending a good faith contest. |
