FIFTH AMENDED AND RESTATED COMMERCIAL NOTE
FIFTH AMENDED AND
RESTATED
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$8,000,000.00
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Lexington,
Kentucky
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FOR VALUE RECEIVED, the
undersigned, LY Holdings,
LLC, a Kentucky limited liability company, with a principal place of
business at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
(“Borrower”), promises to pay to the order of ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, whose
address is ▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇-▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇ (“Lender”),
the principal sum of Eight Million Dollars ($8,000,000.00) (the “Total
Facility”), or the aggregate unpaid balance of all advances made by ▇▇▇▇▇▇ from
time to time hereunder, together with interest thereon, on or before the
“Maturity Date” as that term is defined below. Principal of this Note
and all accrued interest thereon shall be due and payable as set forth
below.
RECITAL
Borrower
and Lightyear Network Solutions, LLC (“LNS”) previously made that certain Fourth
Amended and Restated Commercial Note dated March 25, 2009, payable to the order
of Lender in the face principal amount of $8,750,000.00 (the “Original
Note”). The outstanding principal balance of the Original Note as of
the date hereof is $8,000,000.00. Lender desires to release and
discharge LNS from its obligations under the Original Note, and Borrower and
Lender desire to amend and restate the Original Note as set forth
herein. This Note shall be an amendment and restatement, and not a
novation, of the Original Note. From and after the date of this Note,
all references to the Original Note in any document shall be a reference to this
Note.
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1.
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Interest
Rate. This Note
shall bear interest from the date hereof until the outstanding principal
balance of this Note, all accrued but unpaid interest thereon and all
other charges, fees or expenses hereunder have been repaid to Lender in
full at a rate equal to (a) the rate charged to Lender by Fifth Third
Bank pursuant to that certain Commercial Note dated as of December 30,
2004, in the original principal amount of Ten Million Dollars
($10,000,000.00), as such Commercial Note may be amended or refinanced
from time to time (the “Fifth Third Note”); plus (b) (i) three
percent (3%) per annum on all amounts owed hereunder up to Seven Million
Dollars ($7,000,000.00) and (ii) six percent (6%) per annum on all amounts
owed hereunder in excess of Seven Million Dollars ($7,000,000.00);
provided, however, that (x) subject to Section 6
hereof, in no event shall the rate of interest charged under clause
1(b)(i) of this Note exceed ten percent (10%) per annum, and (y) if
the debt evidenced by the Fifth Third Note is retired (and not
refinanced), the rate of interest charged hereunder until this Note is
paid in full shall be equal to the rate of interest charged hereunder on
the business day immediately preceding the date that the debt evidenced by
the Fifth Third Note was retired.
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2.
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Payments. The
Borrower acknowledges that a principal payment of $250,000.00 was due as
of December 31, 2009 and is currently owing to Lender. In
addition such payment, the principal of, and all interest on, this Note
shall be due and payable without setoff, offset, credit, counterclaim or
defense, as follows:
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March
31, 2010
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$250,000.00
plus accrued interest (including any accrued interest outstanding under
the Original Note on the date
hereof)
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July
1, 2010
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$7,500,000.00
plus accrued interest
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3.
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Maturity
Date. The
outstanding principal of this Note, all accrued but unpaid interest
thereon and all other charges, fees or expenses hereunder shall be due and
payable in full on or before July 1, 2010 (the “Maturity
Date”).
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4.
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Advances. All of the
proceeds of this Note have been or shall be advanced in full to Borrower
at the closing of this loan, and no further advances shall be
allowed. The books and records of Lender shall, at any time, be
prima facie evidence of the outstanding principal of this
Note.
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5.
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Commitment
Fee. On
January 10, 2010, and on January 10 of each year thereafter until
this Note is paid in full, Borrower shall pay Lender a commitment fee
equal to five percent (5%) of the then-outstanding principal balance of
this Note. Such commitment fee shall not be considered in the
calculation of the maximum amount of interest chargeable as contemplated
by clause (x) of Section 1
hereof.
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6.
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Late
Charge and Default Rate of Interest. If Lender
does not receive any payment due under this Note within two (2) days of
the date it is due, then ▇▇▇▇▇▇ may charge a late charge of five percent
(5.00%) of the amount of the overdue payment (the “Late
Charge”). Upon maturity, whether by acceleration or otherwise,
or upon the occurrence of an Event of Default hereunder, in addition to
any and all other remedies to which Lender may be entitled, the applicable
rate of interest on this Note shall be increased to five percent (5.00%)
per annum in excess of the rate set forth in Section 1,
above (the “Default Rate”), but not more than the highest rate permitted
by law.
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7.
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Security. To secure
repayment of this Note, any extensions or renewals thereof and all other
existing and future indebtedness of Borrower to Lender (whether direct,
indirect, absolute or contingent), ▇▇▇▇▇▇▇▇ has granted to Lender a
security interest in the property described in the Security Agreement
dated December 31, 2004, between Borrower, LNS and Lender, as well as any
and all other property of Borrower which is now or hereafter listed in any
separate security agreement or mortgage as directly or indirectly securing
this Note, and also all money and other property of Borrower held by
Lender on deposit in safekeeping or otherwise for the account of or to the
credit of Borrower, or in which Borrower has an interest; provided that
Lender will have the right to call for additional security from Borrower
as necessary. All of the documents or instruments that provide
a lien or security interest in the collateral described above (the
“Collateral”), as well as any and all other documents or instruments now
or hereafter executed in connection with this Note and the loan evidenced
hereby, including but not limited to any Loan Agreement by and between
Lender and Borrower, are referred to herein collectively as the “Security
Documents.” ▇▇▇▇▇▇▇▇ agrees and acknowledges that the shares of
capital stock of Libra Alliance Corporation held by Borrower are subject
to the lien of the Security Documents. All of the terms and
conditions of the Security Documents are incorporated herein and made a
part of this Note as if fully set forth at length herein. Any
holder of this Note shall be entitled to the rights, privileges, benefits
and remedies provided in the Security Documents and in the real and
personal property secured thereby. Borrower represents and
warrants to Lender that the Security Documents have been validly executed
and delivered to Lender and that the Security Documents are legally valid,
binding and enforceable against Borrower in accordance with their
respective terms. As used herein, “Loan Documents” will mean
all Security Documents and this Note. Notwithstanding the
foregoing, this Section 7 is
subject in all respects to the provisions of Section
15.
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8.
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Proceeds. Borrower
represents that the proceeds of this Note will be used exclusively for
business or commercial purposes.
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9.
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Events
of Default and Remedies. The
occurrence of any of the following shall be an “Event of Default”
hereunder: (a) failure of Borrower to make any payment when due
under this Note or under any other note or obligation of Borrower to
Lender within two (2) days after the date such payment is due; (b) an
Event of Default under the Security Documents, or any default under any of
the following that does not have a defined set of “Events of Default” and
the lapse of any notice or cure period provided therein: any
other agreement, document or instrument between Borrower and Lender; (c)
if Borrower or any endorsers or Guarantors of this Note shall (i) make an
assignment for the benefit of creditors, (ii) have a petition initiating
any proceeding under the Bankruptcy Code filed by or against one or more
of them (and in the case of a petition filed against Borrower or any
Guarantor, the same is not discharged or stayed within thirty (30) days),
(iii) have a receiver, trustee, or custodian appointed for all or any
material part of their respective assets, or (iv) seek to make an
adjustment, settlement or extension of their respective debts with his,
her or its (as the case may be) creditors generally; (d) a default with
respect to any other indebtedness of Borrower or any Guarantor for
borrowed money; (e) a proceeding being filed by or commenced against
Borrower or any Guarantor of this Note for dissolution or liquidation (and
in the case of a proceeding commenced against Borrower or any Guarantor,
the same is not discharged or stayed within thirty (30) days), or Borrower
or any Guarantor of this Note voluntarily or involuntarily terminating or
dissolving or being terminated or dissolved; (f) in the event a judgment
or writ or order of attachment or garnishment is made and issued against
Borrower or Borrower’s property; (g) the failure of Borrower or any
Guarantor to provide Lender with additional collateral if in the opinion
of Lender at any time or times, the market value of any of the collateral
securing this Note or any guaranty has depreciated; (h) the revocation or
attempted revocation, in whole or in part, of any guaranty by any
Guarantor or the death of Borrower or any Guarantor (if an individual);
(i) any representation or warranty made by Borrower or Guarantor to Lender
in any document, including but not limited to the Security Documents, or
any other documents now or in the future securing the obligations of
Borrower or any Guarantor to Lender, is false or erroneous in any material
respect; (j) the failure of Borrower or any Guarantor to observe or
perform any covenant or other agreement with Lender contained in any
document executed in connection with the loan evidenced hereby, including
but not limited to this Note or any of the Security Documents; (k) in the
event Lender in good ▇▇▇▇▇ ▇▇▇▇▇ itself insecure with respect to payment
of this Note, or in good faith believes the prospect of payment is
impaired, or Lender determines in the exercise of its sole judgment that
Lender’s perfection in any of the Collateral is impaired; or (l) the
failure of Borrower or any Guarantor to observe or perform any covenant or
other agreement with Lender contained in any document, including but not
limited to the Security Documents or any documents now or in the future
securing the obligations of Borrower or any Guarantor to
Lender. As used herein, the term “Guarantor” will mean any
guarantor of the obligations of Borrower to Lender whether existing on the
date of this Note or arising in the future, or any person who pledges
particular Collateral for the security of this Note whether or not the
debt itself is guaranteed, existing on the date of this Note or arising in
the future. Upon the occurrence of an Event of
Default: (i) the outstanding principal balance hereunder
together with any additional amounts secured by the Security Documents, at
the option of the holder and without demand or notice of any kind (which
are hereby expressly waived), may be accelerated and become immediately
due and payable, (ii) this Note, together with all arrearages of interest
will from the date of the occurrence of the Event of Default bear interest
at the Default Rate, (iii) Borrower will pay to Lender all reasonable
attorneys’ fees, court costs and expenses incurred by ▇▇▇▇▇▇ in connection
with ▇▇▇▇▇▇’s efforts to collect the indebtedness evidenced by the Note,
and (iv) Lender may exercise from time to time any of the rights and
remedies available to the holder under the Security Documents or under
applicable law.
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10.
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Prepayment. The
indebtedness evidenced hereby may be prepaid in whole or in part without
penalty. Payments received will be applied in the following
order: (i) to charges, fees and expenses (including reasonable
attorneys’ fees), (ii) to accrued interest, and (iii) to
principal. Any additional payments will be applied in the
foregoing order and, to the extent applied to principal, will be applied
to installments of principal payable hereunder in the inverse order of
maturity.
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11.
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Cumulative
Remedies. All rights
and remedies of the holder of this Note shall be cumulative to the fullest
extent allowed by law. Time shall be of the essence for paying
interest on the principal of this
Note.
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12.
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Waiver. All parties
to this Note, whether a borrower, endorsers, sureties, guarantors or
otherwise connected herein, waive presentment, demand, notice of dishonor,
protest, notice of protest, notice of nonpayment or non-acceptance, any
other notice and all due diligence or promptness that may otherwise be
required by law, and all exemptions to which they may now or hereafter be
entitled under the laws of the Commonwealth of Kentucky, the United States
of America, or any state thereof. No delay or failure on the
part of Lender to exercise any right, remedy or power hereunder, under any
of the Loan Documents or under applicable law will impair or waive any
such right, remedy or power (or any other right, remedy or power), be
considered a waiver of or an acquiescence in any breach, default or Event
of Default or affect any other or subsequent breach, default or Event of
Default of the same or a different nature. No waiver of any
breach, default or Event of Default, nor any modification, waiver,
discharge or termination of any provision of this Note, nor consent to any
departure by Borrower therefrom, will be established by conduct, custom or
course of dealing; and no modification, waiver, discharge, termination nor
consent will in any event be effective unless the same is in writing,
signed by Lender and specifically refers to this Note, and then such
modification, waiver, discharge or termination or consent will be
effective only in the specific instance and for the specific purpose for
which given. No notice to or demand on Borrower in any case
will entitle Borrower to any other or further notice or demand in the same
or any similar or other
circumstance.
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13.
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Expenses
Incurred by Lender. If Lender
expends sums in defending or otherwise protecting its collateral under the
Loan Documents prior to an Event of Default, or if any Event of Default
occurs under this Note, and this Note is placed in the hands of an
attorney for collection, or is collected through any court, including,
without limitation, bankruptcy court, then Borrower promises to pay the
holder of this Note the reasonable attorneys’ fees and legal costs
incurred in collecting or attempting to collect or securing or attempting
to secure this Note or enforcing the rights of such holder with respect to
any collateral securing this Note, including, without limitation,
appraisal fees, costs of environmental audits, site assessments and/or
remediation, to the fullest extent allowed by the laws of the Commonwealth
of Kentucky or any state in which any collateral for this Note is
situated.
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14.
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Rights
of Lender. Lender may,
with or without notice to any party and without affecting the obligations
of Borrower, or any surety, Guarantor, endorser, accommodation party or
any other party to this Note, (a) renew, extend or otherwise postpone the
time for payment of either principal of this Note or interest thereon from
time to time, (b) release or discharge any one or more parties liable on
this Note, (c) suspend the right to enforce this Note with respect to any
person(s), including any present or future Guarantor of this Note, (d)
change, exchange or release any property in which Lender possesses any
interest securing this Note, (e) justifiably or otherwise, impair any
collateral securing this Note or suspend the right to enforce against any
such collateral, and (f) at any time it deems it necessary or proper, call
for and should it be made available, accept, as additional security, the
signature(s) of an additional party or a security interest in property of
any kind or description or both.
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15.
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Release
of LNS. Notwithstanding
any provision herein or in any other Loan Document to the contrary, Lender
hereby agrees that (a) LNS is hereby released and discharged from all of
its obligations under any Loan Document (including, without limitation,
that certain Security Agreement dated December 31, 2004, between Borrower,
LNS and Lender), and (b) all liens, security interests and pledges created
by LNS pursuant to the Loan Documents are hereby terminated and released
(and LNS shall be authorized to file such termination statements and
releases as are necessary to evidence the foregoing). Lender
further agrees that (x) the Security Agreement (Limited Liability Company
Membership) dated December 31, 2004 between Borrower and Lender is hereby
terminated and of no further force or effect, and that all liens, security
interests and pledges created in Borrower’s membership units in LNS
pursuant thereto (or pursuant to any other Loan Document) are hereby
terminated and released (and that Borrower is not prohibited from selling,
transferring or assigning such membership units), and (y) the Assignment
of Life Insurance Policy as Collateral dated December 30, 2004 from LNS in
favor of Lender is hereby terminated and of no further force or effect,
and that Lender hereby releases all right, title and interest in and to
the life insurance policy described therein. ▇▇▇▇▇▇ further
agrees that LNS is not subject to, or bound by, (i) the Subordination and
Intercreditor Agreement, dated July 30, 2004, among Lender, Borrower, LNS
and the other parties thereto, or (ii) the Subordination and Intercreditor
Agreement, dated December 31, 2004, among the Lender, Borrower, LNS and
the other parties thereto.
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16.
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Late Charge, Default
Rate, and Prepayment
Premium.
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16.1
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The
Late Charge, the Default Rate, and the Prepayment Premium, if any, are
imposed as liquidated damages for the purpose of defraying Lender’s
expenses incident to the handling of delinquent payments, but are in
addition to, and not in lieu of, ▇▇▇▇▇▇’s exercise of any rights and
remedies hereunder, under the other Security Documents or under applicable
law, and any fees and expenses of any agents or any reasonable fees and
expenses of any attorneys which Lender may employ. In addition,
the Default Rate reflects the increased credit risk to Lender of carrying
a loan that is in default. ▇▇▇▇▇▇▇▇ agrees that the Late
Charge, Default Rate, and Prepayment Premium are reasonable forecasts of
just compensation for anticipated and actual harm incurred by ▇▇▇▇▇▇, and
that the actual harm incurred by ▇▇▇▇▇▇ cannot be estimated with certainty
and without difficulty.
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16.2
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Nothing
contained in this Note regarding late charges or the Default Rate will be
construed in any way to extend the due date of any payment or waive any
payment default, and each such right is in addition to, and not in lieu
of, the other and any other rights and remedies of Lender hereunder, under
any of the Security Documents or under applicable law (including, without
limitation, the right to interest, reasonable attorneys’ fees and other
expenses).
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17.
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Usury. Without
limiting the generality of the foregoing, if from any circumstances
whatsoever the fulfillment of any provision of this Note involves
transcending the limit of validity prescribed by any applicable usury
statute or any other applicable law with regard to obligations of like
character and amount, then the obligation to be fulfilled will be reduced
to the limit of such validity as provided in such statute or law, so that
in no event will any exaction of interest be possible under this Note in
excess of the limit of such validity and the right to demand any such
excess is hereby expressly waived by Lender. As used in this
Section, “applicable usury statute” and “applicable law” mean such statute
and law in effect on the date hereof, subject to any change therein that
result in a higher permissible rate of
interest.
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18.
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Singular
and Plural Terms. Wherever
used herein, the singular number shall include the plural, the plural the
singular, and the use of any gender shall include all
genders.
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19.
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Binding
Effect. This Note
will bind ▇▇▇▇▇▇▇▇ and the successors and assigns of ▇▇▇▇▇▇▇▇, and the
benefits hereof will inure to the benefit of ▇▇▇▇▇▇ and its heirs,
executors, administrators, successors and assigns. All
references herein to the “Borrower” and “Lender” will include the
respective heirs, administrators, successors and assigns thereof;
provided, however, that Borrower may not assign this Note in whole or in
part without the prior written consent of Lender and Lender at any time
may assign this Note in whole or in part (but no assignment by Lender of
less than all of this Note will operate to relieve Borrower from any duty
to Lender with respect to the unassigned portion of this
Note).
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20.
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Repayment
by ▇▇▇▇▇▇. If at any
time all or any part of any payment or transfer of any kind received by
Lender with respect to all or any part of this Note is repaid, set aside
or invalidated by reason of any judgment, decree or order of any court or
administrative body, or by reason of any agreement, settlement or
compromise of any claim made at any time with respect to the repayment,
recovery, setting aside or invalidation of all or any part of such payment
or transfer, Borrower’s obligations under this Note will continue (and/or
be reinstated) and Borrower will be and remain liable, and will indemnify,
defend and hold harmless Lender for, the amount or amounts so repaid,
recovered, set aside or invalidated and all other claims, demands,
liabilities, judgments, losses, damages, costs and expenses incurred in
connection therewith. The provisions of this Section will be
and remain effective notwithstanding any contrary action which may have
been taken by Borrower in reliance upon such payment or transfer, and any
such contrary action so taken will be without prejudice to ▇▇▇▇▇▇’s rights
hereunder and will be deemed to have been conditioned upon such payment or
transfer having become final and irrevocable. The provisions of
this Section will survive any termination, cancellation or discharge of
this Note.
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21.
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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:
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To
Lender:
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▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇
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▇▇▇▇
▇. ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇-▇▇▇
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Las
Vegas, Nevada 89102
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With
a copy to:
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▇▇▇▇▇
▇▇▇▇, Esq.
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▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, PLLC
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▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
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Lexington,
Kentucky 40507-2003
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To
Borrower:
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LY
Holdings, LLC
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▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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Louisville,
Kentucky 40223
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With
a copy to:
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▇▇▇▇▇▇
▇. ▇▇▇▇▇▇, Esq.
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▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇ LLC
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Lexington
Financial Center
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▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
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Lexington,
Kentucky 40507-1749
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7
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, or if
sent by telex, facsimile or telegraphic means, on the day on which transmitted,
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.
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22.
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Governing
Law. This Note has been delivered and accepted at and
will be deemed to have been made at Lexington, 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.
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23.
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Jurisdiction. Borrower
hereby irrevocably agrees and submits to the exclusive jurisdiction of any
state or federal court located within Fayette County, Kentucky, or, at the
option of Lender in its sole discretion, of any state or federal court(s)
located within any other county, state or jurisdiction in which Lender at
any time or from time to time chooses in its sole discretion to bring an
action or otherwise exercise a right or remedy, and Borrower waives any
objection based on forum
non conveniens and any
objection to venue of any such action or
proceeding.
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24.
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Waiver
of Jury Trial. The parties
hereto each waive any right to trial by jury in any action or proceeding
relating to this Note, or any actual or proposed transaction or other
matter contemplated in or relating to any of the
foregoing.
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[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK]
8
IN WITNESS WHEREOF, ▇▇▇▇▇▇▇▇ has
executed this Note as of the 11th day of February, 2010.
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BORROWER:
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LY
HOLDINGS, LLC
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By:
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/s/ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇
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▇.
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇
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President
and C.E.O.
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LENDER:
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/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇
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S-1