MODIFICATION OF NOTE
THIS MODIFICATION OF NOTE (hereinafter
referred to as the “Modification”) is executed this the 3rd day of August, 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
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 (hereinafter referred to 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 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 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 $
875,988.00.
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
The Note is hereby modified, to reflect
the following:
The section of the Note 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 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;
(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,
Lightyear Network Solutions, Inc. (f/k/a 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;
3
(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.
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 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 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 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.
4
SECTION
3
NO OTHER
MODIFICATION OF NOTE,
SECURITY
AGREEMENT, AND CONTROL AGREEMENT
Except as expressly provided and 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 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.
SECTION
4
BINDING
EFFECT OF MODIFICATION
This Modification shall be binding on
the successors and assigns of the respective parties.
SECTION
5
GUARANTORS’
CONSENT
Guarantors join in this Modification
hereinbelow solely to evidence their consent to the modification and provisions
hereof.
IN WITNESS WHEREOF, the parties have
executed this Modification on this the 3rd day of August, 2010, but to be
effective as of March 17, 2010.
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“LENDER”
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FIRST
SAVINGS BANK
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By:
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/s/
Xxxxxx Xxxxx
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Xxxxxx
Xxxxx, Vice President
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“BORROWER”
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LIGHTYEAR
NETWORK SOLUTIONS, LLC,
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a
Kentucky limited liability company
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By:
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/s/
J. Xxxxxxx Xxxxxxxxx, III
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J.
Xxxxxxx Xxxxxxxxx, III, CEO
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5
“GUARANTORS”
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/s/ J. Xxxxxxx Xxxxxxxxx,
III
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J.
Xxxxxxx Xxxxxxxxx, III
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/s/ Xxxxxx X. Xxxxxxxx
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Xxxxxx
X. Xxxxxxxx
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STATE OF
INDIANA
COUNTY OF
XXXXX
BEFORE ME, the undersigned, a Notary
Public in and for the above-named County and State, this day of August, 2010,
personally appeared Xxxxxx Xxxxx, as Vice President of First Savings Bank, and
acknowledged the execution of the foregoing Modification of Note on behalf of
said Lender.
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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Resident
of _______________ County
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6
STATE OF
INDIANA
COUNTY OF
XXXXX
BEFORE ME, the undersigned, a Notary
Public in and for the above-named County and State, this day of August, 2010,
personally appeared J. Xxxxxxx Xxxxxxxxx, III, as CEO of Lightyear Network
Solutions, LLC, a Kentucky limited liability company, and acknowledged the
execution of the foregoing Modification of Note 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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|||
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Resident
of _______________ County
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STATE OF
INDIANA
COUNTY OF
XXXXX
BEFORE ME, the undersigned, a Notary
Public in and for the above-named County and State, this day of August, 2010,
personally appeared J. Xxxxxxx Xxxxxxxxx, III, individually, and acknowledged
the execution of the foregoing Modification of Note.
WITNESS my hand and notarial
seal.
|
My
Commission expires:
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Notary
Public
|
||
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Printed
Name
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Resident
of _______________ County
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0
XXXXX
XX
XXXXXX
XX
XXXXXX XX, the undersigned, a Notary
Public in and for the above-named County and State, this day of August, 2010,
personally appeared Xxxxxx X. Xxxxxxxx, individually, and acknowledged the
execution of the foregoing Modification of Note.
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
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