STOCK PLEDGE AGREEMENT
THIS
STOCK PLEDGE AGREEMENT (hereinafter referred to as this “Agreement”) is made
this 21st day of
January, 2011, by LY HOLDINGS, LLC, a Kentucky limited liability company
(hereinafter referred to as “Pledgor”) in favor of FIRST SAVINGS BANK, F.S.B.
(hereinafter referred to as “Creditor”).
RECITALS
WHEREAS,
Pledgor is the owner of up to and at least Two Million (2,000,000) of shares of
Convertible Preferred Stock of Lightyear Network Solutions, Inc., a Nevada
corporation (hereinafter referred to as “Debtor”); and
WHEREAS,
the Debtor has applied to Creditor for a loan in the amount of Two Million and
00/100 Dollars ($2,000,000.00)(hereinafter referred to as the “Loan”);
and
WHEREAS,
the Loan is to be evidenced by and repaid with interest in accordance with the
provisions of a certain Promissory Note of even date herewith from Debtor
payable to Creditor in the principal amount of the Loan; and
WHEREAS,
to induce Creditor to extend the Loan, Creditor has required that Pledgor pledge
and assign the Shares (as defined below) to Creditor to secure the Loan and to
execute this Agreement; and
WHEREAS,
Debtor’s receipt of the proceeds of the Loan will be of significant and
substantial direct or indirect benefit to Pledgor.
NOW,
THEREFORE, in consideration of the premises and intending to be legally bound
thereby, Pledgor hereby agrees as follows:
1. Pledge of
Collateral. Pledgor hereby pledges, transfers, assigns and
grants to Creditor a security interest in and to Two Million (2,000,000) shares
of Convertible Preferred Stock in Debtor (hereinafter referred to as the
“Shares”), Stock Certificate No. 102 (and all property subsequently deposited
pursuant hereto in addition to or in substitution for any such property),
together with all cash and non-cash proceeds thereof (all of the foregoing is
herein collectively referred to as the “Collateral”) to secure the following
which hereafter are referred to as the “Obligations”: (a) the prompt payment of
the Loan, and to the fullest extent permitted by applicable law, all costs and
expenses (including reasonable attorney’s fees) incurred by Creditor in the
collection of the Loan, and (b) the performance of all of the terms, conditions
and provisions of this Agreement and of any other agreement or document now or
hereafter executed and delivered by Debtor, Pledgor, or any other person in
connection with the Loan (hereinafter referred to as the “Loan
Documents”).
2. Representations and
Warranties. Pledgor represents and warrants to Creditor that:
(a) Pledgor has full power and authority to enter into this Agreement; (b) any
consent or approval which is required as a condition to the validity of this
Agreement has been obtained; (c) this Agreement constitutes the valid and
legally binding agreement of Pledgor in accordance with its terms and does not
constitute a prohibited transfer under any law, statute, regulation or
ordinance, including the Securities Act of 1933; (d) there is no provision of
any existing mortgage, indenture, contract, subscription agreement, or other
agreement binding on Pledgor or affecting its property which would conflict with
or in any way prevent the execution, delivery or carrying-out of the terms of
this Agreement; (e) Pledgor has good title to the Collateral and the Collateral
is owned free and clear of liens and encumbrances; (f) there are no proceedings
pending or, so far as Pledgor knows, threatened before any court or
administrative agency which, in the opinion of Pledgor, will adversely affect
the financial condition or operation of Pledgor, or the authority of Pledgor to
enter into, or the validity or enforceability of, this Agreement or any of the
Loan Documents; (g) Pledgor will not create, incur, assume or suffer to exist
any mortgage, pledge, lien or other encumbrance of any kind, or any security
interest in any of the Collateral now owned or hereafter acquired, without the
prior written consent of Creditor; (h) Pledgor will immediately notify Creditor
in writing of any event which materially adversely affects the value of the
Collateral or the rights and remedies of Creditor in relation thereto; (i)
Pledgor has delivered to Creditor any and all certificates evidencing the
Collateral, together with any necessary powers or endorsements; and (j) the
Lightyear Network Solutions, Inc. Convertible Preferred Stock statement attached
hereto as Exhibit “A” (hereinafter referred to as the “Stock Statement”) truly
and accurately states and reflects the rights of owners of Convertible Preferred
Stock in Debtor to which rights Creditor may succeed pursuant to the terms
hereof.
3. Other
Documents. Pledgor will execute and deliver to Creditor all
assignments, endorsements, powers, hypothecations and other documents required
at any time and from time to time by Creditor with respect to the Collateral.
Pledgor shall, at its expense, do, make, procure and execute and deliver all
acts, things, writings and assurances as Creditor may at any time request to
protect, assure or enforce its rights, interests and remedies created by,
provided in or emanating from this Agreement. Pledgor authorizes Creditor to
file financing statements covering the Collateral and containing such legends as
Creditor shall deem necessary or desirable to protect Creditor’s interest in the
Collateral. Pledgor agrees to pay all taxes, fees and costs
(including attorneys’ fees) paid or incurred by Creditor in connection with the
preparation, filing or recordation thereof. Pledgor shall not file
any amendments, correction statements or termination statements concerning the
Collateral without the prior written consent of Creditor.
4. Continued Possession of
Collateral. Creditor shall hold possession of the Collateral
so long as any of the Obligations are outstanding. Upon the
satisfaction in full of all of the Obligations, Creditor shall release any
remaining Collateral to Pledgor.
5. Rights of the
Pledgor. Prior to the occurrence of an Event of Default under
the Note or any of the other Loan Documents, the Pledgor shall have all voting
and other rights, powers, privileges and preferences pertaining to the
Collateral, subject to the terms of this Agreement and the other Loan Documents,
and Lender shall not be entitled to any of such rights by reason of its
possession of the Collateral.
6. Covenants of
Pledgor. Pledgor agrees that, so long as Creditor holds
possession of the Collateral, Pledgor will not, without Creditor’s prior written
consent, withdraw, sell, assign, transfer, pledge, or otherwise encumber the
Collateral or any part thereof. If Pledgor at any time becomes
entitled to receive any cash, stock, or other property as additions to, in
substitution of or in exchange for any of the Collateral, Pledgor shall accept
the same as Creditor’s agent and shall promptly deliver them to Creditor in the
exact form received, with all necessary transfer instruments or stock powers, to
be held as further security for the Obligations, subject to the terms
hereof.
7. Care of
Collateral. Creditor shall have no liability or duty beyond
the safe custody of such of the Collateral as may come into the possession of
Creditor, either before or after the occurrence of an Event of Default, on
account of loss of or damage to, to collect or enforce any of its rights
against, the Collateral, to collect any income accruing on the Collateral, or to
preserve rights against other parties, except for liability arising out of the
gross negligence or actual bad faith of Creditor. If Creditor
actually receives any notices requiring action with respect to Collateral in
Creditor’s possession, Creditor shall take reasonable steps to forward such
notices to Pledgor. Pledgor is responsible for responding to notices concerning
the Collateral. Creditor’s sole responsibility is to take such action
as is reasonably requested by Pledgor in writing; however, Creditor is not
responsible to take any action that, in Creditor’s sole judgment, would
adversely affect the value of the Collateral as security for the
Obligations. While Creditor is not required to take certain actions,
if action is needed, in Creditor’s sole discretion, to preserve and maintain the
Collateral, Pledgor authorizes Creditor to take such actions, but Creditor is
not obligated to do so.
8. Assignment of
Collateral. In addition to all other rights available to it
under applicable laws or otherwise, should Creditor assign, pledge, or transfer
the Loan, Creditor shall have the right to assign therewith Creditor’s rights in
any of the Collateral, and any assignee, pledge, or transferee shall have the
rights of Creditor hereunder with respect to the Collateral so assigned,
pledged, or transferred, and Creditor shall be thereafter relieved from all
duties with respect to any such Collateral.
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9. Event of
Default. The occurrence of any one or more of the following
events shall constitute an event of default (hereinafter referred to as an
“Event of Default”) under this Agreement: (a) an Event of Default under the
other Loan Documents; (b) failure of Pledgor and/or Debtor to perform, observe,
or comply with any of the provisions of the Loan Documents; (c) if any
information contained in any financial statement, application, schedule, and/or
report in connection with the Loan or any other document given by Pledgor,
Debtor, and/or any other person is not in all material respects true and
accurate or if Pledgor, Debtor, and/ or such person in connection with the Loan
omitted to state any material fact or any fact necessary to make such
information not misleading; (d) if Pledgor and/or Debtor is not paying debts as
such debts become due; (e) the filing of any petition for relief under
Bankruptcy Code or any similar federal or state statute by or against Pledgor
and/or Debtor; (f) an application for the appointment of a receiver for, the
making of a general assignment for the benefit of creditors by, or the
insolvency of Pledgor and/or Debtor; (g) the death of Pledgor and/or Debtor; (h)
the dissolution, whether voluntary, involuntary, or administrative, of Pledgor
and/or Debtor; (i) there is a substantial change in the existing or prospective
financial condition of Pledgor and/or Debtor which Creditor in good faith
determines to be materially adverse; and/or (j) if at any time or for any reason
Creditor reasonably deems itself to be insecure.
10. Remedies.
(a) Upon
the occurrence of an Event of Default hereunder, Creditor may, at its option,
proceed to enforce this Agreement and in connection therewith may (i) declare
all or any part of the unpaid Loan, together with all accrued and unpaid
interest thereon, to be immediately due and payable, (ii) retain or sell all or
any portion of the Collateral and apply such Collateral or the proceeds thereof
against the Loan up to the limits expressly provided herein, (iii) exercise any
remedies available to it under the Loan Documents, and (iv) otherwise exercise
all of the rights and remedies of a secured party under the Indiana Uniform
Commercial Code and under other applicable laws. Without limiting the
foregoing, Creditor shall have the right to: (i) transfer the whole
or any part of the Collateral into the name of Creditor or its nominee; (ii)
notify any person obligated on any of the Collateral to make payment directly to
Creditor or its nominee of any amounts due or to become due thereon; (iii) vote
the Collateral; and/or (iv) convert the Collateral to shares of “common stock”
pursuant to the terms of the Stock Statement.
(b) Any
written notice of the sale, disposition or other intended action by Creditor
with respect to the Collateral which is sent by certified mail, return receipt
requested or by overnight courier to Pledgor at Pledgor’s address specified
below, or such other address of Pledgor which may from time to time be shown on
Creditor’s records, at least five (5) days prior to such sale, disposition or
action, shall constitute reasonable notice to Pledgor, unless applicable law
requires a longer period. However, this provision shall not be construed to
impose any obligation on Creditor to notify Pledgor of Creditor’s intent to
sell, dispose of, or take other action with respect to the Collateral, except to
the extent applicable law requires such notice.
(c) Pledgor
recognizes that Creditor may be unable to effect a public sale of all or a part
of the Collateral by reason of certain prohibitions contained in the Securities
Act of 1933, as amended, and applicable state securities laws, but may be
compelled to resort to one or more private sales to a restricted group of
purchasers who will be obliged to agree, among other things, to acquire all or a
part of the Collateral for their own account, for investment and not with a view
to the distribution or resale thereof. Pledgor acknowledges and
agrees that any private sale so made may be at prices and on other terms less
favorable to the seller than if such Collateral were sold at public sale, and
that Creditor has no obligation to delay the sale of such Collateral for the
period of time necessary to permit registration of such Collateral for public
sale under any securities laws. Pledgor agrees that a private sale or
sales made under the foregoing circumstances shall be deemed to have been made
in a commercially reasonable manner. If any consent, approval or
authorization of any federal, state, municipal or other governmental department,
agency or authority should be necessary to effectuate any sale or other
disposition of the Collateral, or any partial sale or other disposition of the
Collateral, Pledgor will execute all such applications and other instruments as
may be required in connection with securing any such consent, approval or
authorization, and will otherwise use its best efforts to secure the
same.
(d) All
costs and expenses, including, without limitation, attorneys’ fees and expenses,
incurred by or on behalf of Creditor in connection with the taking, holding,
preparing for sale or other disposition, selling, managing, collecting, or
otherwise disposing of the Collateral, together with interest thereon at a per
annum rate of interest which is equal to the then highest rate of interest
charged on the principal of the Loan from the date of payment until repaid in
full, and such costs and expenses as Creditor shall incur to collect and enforce
the Obligations (hereinafter referred to as the “Liquidation Costs”), shall be
paid by Pledgor to Creditor on demand and shall constitute and become a part of
the Obligations secured hereby. Any retained Collateral and any
proceeds of sale or other disposition of the Collateral will be applied by
Creditor to the payment of the Liquidation Costs, and the balance of such
proceeds (if any) will be applied by Creditor toward the payment of the Loan
(whether then due or not) at such time or times and in such order and manner of
application as Creditor may from time to time in its sole discretion
determine. Except as may be otherwise specifically provided in this
Agreement, all Collateral and proceeds of Collateral coming into Creditor’s
possession may be applied by Creditor to any of the Obligations, whether matured
or unmatured, as Creditor shall determine in its sole but reasonable discretion.
Creditor may defer the application of non-cash proceeds of Collateral to the
Obligations until cash proceeds are actually received by
Creditor.
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(e) Each
right, power, and remedy of Creditor as provided for in this Agreement, or in
the other Loan Documents or now or hereafter existing at law or in equity or by
statute or otherwise shall be cumulative and concurrent and shall be in addition
to every other right, power or remedy provided for in this Agreement or in the
other Loan Documents or now or hereafter existing at law or in equity or by
statute or otherwise, and the exercise or beginning of the exercise by Creditor
of any one or more such rights, powers, or remedies shall not preclude the
simultaneous or later exercise by Creditor of any or all such other rights,
powers or remedies.
(f) No
failure or delay by Creditor to insist upon the strict performance of any term,
condition, covenant, or agreement of this Agreement or of the Loan Documents, or
to exercise any right, power or remedy consequent upon a breach thereof, shall
constitute or be deemed to constitute a waiver of any such term, condition,
covenant or agreement or of any such breach, or preclude Creditor from
exercising any such right, power or remedy at any later time or
times.
11. Power of
Attorney. Pledgor hereby appoints and constitutes Creditor its
agent and true and lawful attorney, with full power of substitution, with full
power and authority to: (i) prepare, execute, and deliver on behalf
of Pledgor any and all such instruments, assignments, stock powers,
certificates, and other documents as Creditor deems necessary in order to
perfect and protect its interests in the Collateral; (ii) endorse Pledgor’s name
on requests to other secured parties of Pledgor for accountings, confirmations
of collateral, and confirmations of statements of account; and (iii) upon the
occurrence of the Event of Default hereunder, (A) to liquidate any Collateral
and apply the proceeds thereof directly to the Obligations, (B) to transfer
ownership of any Collateral to an account designated by Creditor, and (c) to
take such other actions with respect to the Collateral as Creditor, in its sole
discretion, shall deem necessary or appropriate in order to protect its interest
in the Collateral. This appointment of agency and power of attorney
is coupled with an interest and may not be revoked or canceled before all of the
Obligations have been paid or otherwise satisfied.
12. Miscellaneous. Neither
this Agreement nor any term, condition, covenant, or agreement hereof may be
changed, waived, discharged, or terminated orally, but only by an instrument in
writing signed by the party against whom enforcement of the change, waiver,
discharge or termination is sought. This Agreement shall be governed
by the internal laws of the State of Indiana and shall be binding upon the
heirs, personal representatives, successors, and assigns of Pledgor and shall
inure to the benefit of the successors and assigns of Creditor. As
used herein the singular number shall include the plural, the plural the
singular, and the use of the masculine, feminine, or neuter gender shall include
all genders as the context may require, and the term “person” shall include an
individual, a corporation, an association, a partnership, a trust, a limited
liability company, an organization, a government, or political subdivision
thereof and a governmental agency. Unless varied by this Agreement,
all terms used herein which are defined by the Indiana Uniform Commercial Code
shall have the same meanings hereunder as assigned to them by the Indiana
Uniform Commercial Code, as in effect on the date hereof.
13. Waiver of Jury
Trial. Pledgor and Creditor, 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 Agreement, the Loan Documents, or
any related instrument or agreement or any of the transactions contemplated by
this Agreement or any course of conduct, dealing, statements, whether oral or
written, or actions of either of them. Neither Pledgor nor Creditor
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.
[SPACE
INTENTIONALLY BLANK; SIGNATURES ON FOLLOWING PAGE]
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The
signature of Pledgor is subscribed to this Agreement as of the day and year
first written above.
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“PLEDGOR”
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LY
HOLDINGS, LLC, a Kentucky limited liability company
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By:
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/S/ J. Xxxxxxx Xxxxxxxxx.
III
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Printed
Name:
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J. Xxxxxxx Xxxxxxxxx
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Title:
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Manager
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COMMONWEALTH
OF KENTUCKY
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)
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) SS:
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COUNTY
OF ____________________
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)
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Before
me, a Notary Public in and for the above county and state, on this the ___ day
of January, 2011, personally appeared _________________________, as
_____________________ of LY Holdings, LLC, a Kentucky limited liability company,
and acknowledged the execution of the foregoing Stock Pledge Agreement on behalf
of said company.
WITNESS my hand and notarial
seal.
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My
Commission expires:
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Notary
Public
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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
IRREVOCABLE STOCK
POWER
FOR VALUE
RECEIVED, the undersigned does hereby sell, assign, and transfer to FIRST
SAVINGS BANK, F.S.B., Two Million (2,000,000) shares of the Convertible
Preferred Stock of LIGHTYEAR NETWORK SOLUTIONS, INC., a Nevada corporation,
represented by Stock Certificate No. 102, standing in the name of the
undersigned on the books of said entity. The undersigned does hereby
irrevocably constitute and appoints First Savings Bank, F.S.B., as its agent and
attorney-in-fact, to transfer said stock on the books of said entity, with full
power of substitution of the premises.
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LY
HOLDINGS, LLC, a Kentucky limited liability company
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Date:
____________________
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By:
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Printed
Name:
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Title:
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COMMONWEALTH
OF KENTUCKY
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)
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) SS:
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COUNTY
OF ___________________
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)
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Before me, a Notary Public in and for
the above county and state, on this the ___ day of _______________, 20___,
personally appeared _______________________, as ________________ of LY Holdings,
LLC, a Kentucky limited liability company, and acknowledged the execution of the
foregoing Irrevocable Stock Power on behalf of said company.
WITNESS my hand and notarial
seal.
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My
Commission expires:
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Notary
Public
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Printed
Name
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