Contract
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”).
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.
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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 each Company under the Security Agreement and the other Ancillary Agreements,
to require the Companies, jointly and severally, to make a Default Payment
(“Default
Payment”). The Default Payment shall be one hundred ten
percent (110%) of the outstanding principal amount of this Note, plus accrued
but unpaid interest, all other fees then remaining unpaid, and all other amounts
payable hereunder, under the Security Agreement or any other Ancillary
Agreement. Subject to the last sentence of Section 18 of the Security
Agreement, the Default Payment shall be due and payable immediately on the date
that the Agent has demanded payment of the Default Payment pursuant to this
Section 2.3.
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ARTICLE
III
MISCELLANEOUS
3.1 Cumulative
Remedies. The remedies under this Note shall be
cumulative.
3.2 Failure or Indulgence Not
Waiver. No failure or delay on the part of the Holder hereof
in the exercise of any power, right or privilege hereunder shall operate as a
waiver thereof, nor shall any single or partial exercise of any such power,
right or privilege preclude other or further exercise thereof or of any other
right, power or privilege. All rights and remedies existing hereunder
are cumulative to, and not exclusive of, any rights or remedies otherwise
available.
3.3 Notices. Any
notice herein required or permitted to be given shall be given in writing in
accordance with the terms of the Security Agreement.
3.4 Amendment
Provision. The term “Note” and all references
thereto, as used throughout this instrument, shall mean this instrument as
originally executed, or if later amended or supplemented, then as so amended or
supplemented, and any successor instrument as such successor instrument may be
amended or supplemented.
3.5 Assignability. This
Note shall be binding upon each Company and its successors and assigns, and
shall inure to the benefit of the Holder and its successors and assigns, and may
be assigned by the Holder in accordance with the requirements of the Security
Agreement. No Company may assign any of its obligations under this
Note without the prior written consent of the Holder, any such purported
assignment without such consent being null and void.
3.6 Cost of
Collection. In case of the occurrence of an Event of Default
under this Note, the Companies shall, jointly and severally, pay the Holder the
Holder’s reasonable costs of collection, including reasonable attorneys’
fees.
3.7 Governing Law, Jurisdiction
and Waiver of Jury Trial.
(a) THIS
NOTE SHALL BE GOVERNED BY AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAW
OF THE STATE OF NEW YORK, WITHOUT REGARD TO ITS PRINCIPLES OF CONFLICTS OF
LAW.
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(b) EACH
COMPANY HEREBY CONSENTS AND AGREES THAT THE STATE AND/OR FEDERAL COURTS LOCATED
IN THE COUNTY OF NEW YORK, STATE OF NEW YORK SHALL HAVE EXCLUSIVE JURISDICTION
TO HEAR AND DETERMINE ANY CLAIMS OR DISPUTES BETWEEN ANY COMPANY, ON THE ONE
HAND, AND THE HOLDER AND/OR ANY OTHER CREDITOR PARTY, ON THE OTHER HAND,
PERTAINING TO THIS NOTE, THE SECURITY AGREEMENT OR ANY OF THE OTHER ANCILLARY
AGREEMENTS OR TO ANY MATTER ARISING OUT OF OR RELATED TO THIS NOTE, THE SECURITY
AGREEMENT OR ANY OF THE OTHER ANCILLARY AGREEMENTS; PROVIDED, THAT, EACH COMPANY
ACKNOWLEDGES THAT ANY APPEALS FROM THOSE COURTS MAY HAVE TO BE HEARD BY A COURT
LOCATED OUTSIDE OF THE COUNTY OF NEW YORK, STATE OF NEW YORK; AND FURTHER PROVIDED, THAT, NOTHING IN THIS
NOTE SHALL BE DEEMED OR OPERATE TO PRECLUDE THE HOLDER AND/OR ANY OTHER CREDITOR
PARTY FROM BRINGING SUIT OR TAKING OTHER LEGAL ACTION IN ANY OTHER JURISDICTION
TO COLLECT THE OBLIGATIONS, TO REALIZE ON THE COLLATERAL OR ANY OTHER SECURITY
FOR THE OBLIGATIONS, OR TO ENFORCE A JUDGMENT OR OTHER COURT ORDER IN FAVOR OF
THE HOLDER AND/OR ANY OTHER CREDITOR PARTY. EACH COMPANY EXPRESSLY
SUBMITS AND CONSENTS IN ADVANCE TO SUCH JURISDICTION IN ANY ACTION OR SUIT
COMMENCED IN ANY SUCH COURT, AND EACH COMPANY HEREBY WAIVES ANY OBJECTION WHICH
IT MAY HAVE BASED UPON LACK OF PERSONAL JURISDICTION, IMPROPER VENUE OR FORUM NON
CONVENIENS. EACH COMPANY HEREBY WAIVES PERSONAL SERVICE OF THE
SUMMONS, COMPLAINT AND OTHER PROCESS ISSUED IN ANY SUCH ACTION OR SUIT AND
AGREES THAT SERVICE OF SUCH SUMMONS, COMPLAINT AND OTHER PROCESS MAY BE MADE BY
REGISTERED OR CERTIFIED MAIL ADDRESSED TO THE PARENT AT THE ADDRESS SET FORTH IN
THE SECURITY AGREEMENT AND THAT SERVICE SO MADE SHALL BE DEEMED COMPLETED UPON
THE EARLIER OF THE PARENT’S ACTUAL RECEIPT THEREOF OR THREE (3) DAYS AFTER
DEPOSIT IN THE U.S. MAILS, PROPER POSTAGE PREPAID
(c) EACH
COMPANY DESIRES THAT ITS DISPUTES BE RESOLVED BY A JUDGE APPLYING SUCH
APPLICABLE LAWS. THEREFORE, TO ACHIEVE THE BEST COMBINATION OF THE
BENEFITS OF THE JUDICIAL SYSTEM AND/OR OF ARBITRATION, EACH COMPANY HERETO
WAIVES ALL RIGHTS TO TRIAL BY JURY IN ANY ACTION, SUIT, OR PROCEEDING BROUGHT TO
RESOLVE ANY DISPUTE, WHETHER ARISING IN CONTRACT, TORT, OR OTHERWISE BETWEEN THE
HOLDER AND/OR ANY OTHER CREDITOR PARTY, AND/OR ANY COMPANY, ON THE OTHER HAND,
ARISING OUT OF, CONNECTED WITH, RELATED OR INCIDENTAL TO THE RELATIONSHIP
ESTABLISHED BETWEEN THEM IN CONNECTION WITH THIS NOTE, THE SECURITY AGREEMENT,
ANY OTHER ANCILLARY AGREEMENT OR THE TRANSACTIONS RELATED HERETO OR
THERETO.
3.8 Severability. In
the event that any provision of this Note is invalid or unenforceable under any
applicable statute or rule of law, then such provision shall be deemed
inoperative to the extent that it may conflict therewith and shall be deemed
modified to conform with such statute or rule of law. Any such
provision which may prove invalid or unenforceable under any law shall not
affect the validity or enforceability of any other provision of this
Note.
3.9 Maximum
Payments. Nothing contained herein shall be deemed to
establish or require the payment of a rate of interest or other charges in
excess of the maximum permitted by applicable law. In the event that
the rate of interest required to be paid or other charges hereunder exceed the
maximum rate permitted by such law, any payments in excess of such maximum rate
shall be credited against amounts owed by the Companies to the Holder and thus
refunded to the Companies.
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3.10 Security
Interest. The Agent, for the ratable benefit of the Creditor
Parties, has been granted a security interest in certain assets of the Companies
as more fully described in the Security Agreement and the Ancillary
Agreements.
3.11 Construction;
Counterparts. Each party acknowledges that its legal counsel
participated in the preparation of this Note and, therefore, stipulates that the
rule of construction that ambiguities are to be resolved against the drafting
party shall not be applied in the interpretation of this Note to favor any party
against the other. This Note may be executed by the parties hereto in
one or more counterparts, each of which shall be deemed an original and all of
which when taken together shall constitute one and the same
instrument. Any signature delivered by a party by facsimile or
electronic transmission shall be deemed to be an original signature
hereto.
3.12 Registered
Obligation. This Note shall be registered (and such registration shall
thereafter be maintained) as set forth in Section 24(b) of the Security
Agreement. Notwithstanding any document, instrument or agreement
relating to this Note to the contrary, transfer of this Note (or the right to
any payments of principal or stated interest thereunder) may only be effected by
(i) surrender of this Note and either the reissuance by the Companies of this
Note to the new holder or the issuance by the Companies of a new instrument to
the new holder or (ii) registration of such holder as an assignee in accordance
with Section 24(b) of the Security Agreement.
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IN WITNESS WHEREOF, each
Company has caused this Secured Revolving Note to be signed in its name
effective as of this 11th day of
July, 2008.
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RAPID
LINK, INC.
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By:
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Name:
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Title:
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WITNESS:
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TELENATIONAL
COMMUNICATIONS, INC.
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By:
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Name:
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Title:
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WITNESS:
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ONE
RING NETWORKS, INC.
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By:
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Name:
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Title:
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WITNESS:
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SIGNATURE PAGE TO
SECURED REVOLVING NOTE
EXHIBIT
A
OTHER
COMPANIES
Telenational
Communications, Inc.
One Ring
Networks, Inc.
