Exhibit 4.3
THIS NOTE
HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, OR ANY STATE SECURITIES LAWS. THIS NOTE MAY NOT
BE SOLD, OFFERED FOR SALE, PLEDGED OR HYPOTHECATED IN THE ABSENCE
OF (A) AN EFFECTIVE REGISTRATION STATEMENT AS TO THIS NOTE UNDER
SAID ACT AND ANY APPLICABLE STATE SECURITIES LAWS OR (B) AN
EXEMPTION FROM SUCH REGISTRATION REQUIREMENTS.
THIS NOTE IS
REGISTERED WITH THE AGENT PURSUANT TO SECTION 24(B) OF THE SECURITY
AGREEMENT. TRANSFER OF ALL OR ANY PORTION OF THIS NOTE
IS PERMITTED SUBJECT TO THE PROVISIONS SET FORTH IN SUCH SECTION
24(B) WHICH REQUIRE, AMONG OTHER THINGS, THAT NO TRANSFER IS
EFFECTIVE UNTIL THE TRANSFEREE IS REFLECTED AS SUCH ON THE REGISTRY
MAINTAINED WITH THE AGENT PURSUANT TO SUCH SECTION
24(B).
SECURED REVOLVING
NOTE
FOR VALUE RECEIVED, each of Rapid Link, Inc., a
Delaware corporation (the “ Parent ”), and the
other companies listed on Exhibit A attached hereto (such
other companies together with the Parent, each a “
Company ” and collectively, the “
Companies ”), hereby, jointly and severally, promises
to pay to Valens U.S. SPV I, LLC (the “ Holder
”) or its registered assigns or successors in interest, the
sum of One Million Two Hundred Thousand Dollars ($1,200,000), or,
if different, the Holder’s Revolving Commitment Percentage of
the aggregate principal amount of all Revolving Loans (as defined
in the Security Agreement referred to below), together with any
accrued and unpaid interest hereon, on March 31, 2011 (the “
Maturity Date ”) if not sooner indefeasibly paid in
full.
Capitalized terms used herein without definition
shall have the meanings ascribed to such terms in the Security
Agreement dated as of the date hereof (as amended, restated,
modified and/or supplemented from time to time, the “
Security Agreement ”) among the Companies, the Holder,
each other Lender and LV Administrative Services, Inc., as
administrative and collateral agent for the Lender (the “
Agent ” together with the Lenders, collectively, the
“ Creditor Parties ”).
The following terms shall apply to this Secured
Revolving Note (this “ Note ”):
ARTICLE I
CONTRACT RATE
1.1
Contract Rate . Subject to Sections 2.2 and 3.9,
interest payable on the outstanding principal amount of this Note
(the “ Principal Amount ”) shall accrue at a
rate per annum equal to the “prime rate” published in
The Wall Street Journal from time to time (the “
Prime Rate ”), plus three percent (3.00%) (the “
Contract Rate ”). The Contract Rate shall
be increased or decreased as the case may be for each increase or
decrease in the Prime Rate in an amount equal to such increase or
decrease in the Prime Rate; each change to be effective as of the
day of the change in the Prime Rate. The Contract Rate
shall not at any time be less than nine percent
(9.00%). Interest shall be (i) calculated on the basis
of a 360 day year, and (ii) payable monthly, in arrears, commencing
on the first day of the first month following the initial Revolving
Loan, on the first Business Day of each consecutive calendar month
thereafter through and including the Maturity Date, and on the
Maturity Date, whether by acceleration or otherwise.
1.2
Contract Rate Payments . The Contract Rate shall
be calculated on the last Business Day of each calendar month
hereafter (other than for increases or decreases in the Prime Rate
which shall be calculated and become effective in accordance with
the terms of Section 1.1) until the Maturity Date and shall be
subject to adjustment as set forth herein.
1.3
Rebate . If within six (6) months of the date of
issue of this Note, the Companies prepay in full the Principal
Amount outstanding at such time together with accrued but unpaid
interest thereon and any and all other sums due, accrued or payable
to the Holder arising under this Note, the Security Agreement or
any other Ancillary Agreement (collectively, the “
Redemption Amount ”) and the Security Agreement has
been irrevocably terminated, upon receipt in full of the Redemption
Amount in good funds, the Holder will rebate to the Parent fifty
percent (50%) of any fees it received from the Companies on the
date of issue of this Note.
ARTICLE II
EVENTS OF DEFAULT AND DEFAULT
RELATED PROVISIONS
2.1
Events of Default . The occurrence of any Event
of Default under the Security Agreement shall constitute an event
of default (“ Event of Default ”)
hereunder.
2.2
Default Interest . Following the occurrence and
during the continuance of an Event of Default, the Companies shall,
jointly and severally, pay interest on the outstanding principal
balance of this Note in an amount equal to twenty four percent
(24%) per annum beginning on the first date of such Event of
Default, and all outstanding Obligations, including unpaid
interest, shall continue to accrue interest at such interest rate
from the date of such Event of Default until the date such Event of
Default is cured or waived.
2.3
Default Payment . Following the occurrence
and during the continuance of an Event of Default, the Agent may
demand repayment in full of all obligations and liabilities owing
by the Companies to the Holder under this Note, the Security
Agreement and/or any other Ancillary Agreement and/or may elect, in
addition to all rights and remedies of the Agent under the Security
Agreement and the other Ancillary Agreements and all obligations
and liabilities of eac
|
