Exhibit 4.6
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 (AS DEFINED
BELOW). 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).
AMENDED AND RESTATED DEFERRED
PURCHASE PRICE NOTE
FOR VALUE RECEIVED, each of Rapid
Link, Incorporated, 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 Two Hundred Ninety Two Thousand
Seven Hundred and Nine Dollars and Forty Cents ($292,709.40),
together with any accrued and unpaid interest hereon, on March 31,
2011 (the “ Maturity Date ”) if not sooner
indefeasibly paid in full.
This Amended and Restated Deferred
Purchase Price Note (this “ Note ”) amends and
restates that certain Secured Term Note dated as of November 7,
2006 in the original principal amount of $2,500,000 made by
iBroadband, Inc. in favor of Laurus Master Fund, Ltd. as partially
assigned to Valens U.S. SPV I, LLC, Short Term Demand Note dated
February 29, 2008 in the principal amount of $62,608.95, Short Term
Demand Note dated March 13, 2008 in the principal amount of
$16,805.11 and Short Term Demand Note dated March 27, 2008 in the
principal amount of $49,713.09, each of which has been assumed by
Companies.
Capitalized terms used herein
without definition shall have the meanings ascribed to such terms
in that certain Security Agreement dated as of March 31, 2008 (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 Lenders (the “
Agent ” together with the Lenders, collectively, the
“ Creditor Parties ”).
The following terms shall apply to
this Note:
ARTICLE I
CONTRACT RATE AND
AMORTIZATION
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 ten percent (the “ Contract
Rate ”). 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 month following the date of this
Note and 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
Principal Payments . The outstanding Principal
Amount together with any accrued and unpaid interest and any and
all other unpaid amounts which are then owing by the Companies to
the Holder under this Note, the Security Agreement and/or any other
Ancillary Agreement shall be due and payable on the Maturity
Date.
1.3
Optional Redemption in Cash . The Companies may
prepay this Note in full (“ Optional Redemption
”) by paying to the Holder a sum of money equal to one
hundred ten percent (110%) of 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 (the “ Redemption Amount ”)
outstanding on the Redemption Payment Date (as defined
below). The Companies shall deliver to the Holder a
written notice of redemption (the “ Notice of
Redemption ”) specifying the date for such Optional
Redemption (the “ Redemption Payment Date ”),
which date shall be ten (10) business days after the date of the
Notice of Redemption (the “ Redemption Period
”). On the Redemption Payment Date, the Redemption
Amount must be paid in good funds to the Holder. In the
event the Companies fail to pay the Redemption Amount on the
Redemption Payment Date as set forth herein, then such Redemption
Notice will be null and void. In the event that the
Redemption Amount is paid to the Holder within six (6) months of
the date of issue of this Note, upon receipt in full of the
Redemption Amount in good funds, the Holder will rebate to
Companies fifty percent (50%) of any fees it received from the
Companies on the date of issue of this Note. If any
Deferred Purchase Price Notes issued pursuant to the Security
Agreement, in addition to this Note, are outstanding (collectively,
the “ Outstanding Notes ”) and the Companies
pursuant to this Section 1.3 elects to make an Optional Redemption,
then the Companies shall take the same action with respect to all
Outstanding Notes and make such payments to all holders of
Outstanding Notes on a pro rata basis based upon the Redemption
Amount of each Outstanding Note.
ARTICLE II
EVENTS OF DEFAULT
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, each Company shall,
jointly and severally, pay interest on the outstanding principal
balance of this Note in an amount equal to twenty four percent
(2
