Contract
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).
AMENDED
AND RESTATED
FOR
VALUE
RECEIVED, each of PROLINK HOLDINGS CORP., a Delaware corporation (the
“Parent”),
and
the other companies listed on Schedule
1
attached
hereto (such other companies together with the Parent, each a “Company”
and
collectively, the “Companies”),
hereby, jointly and severally, promises to pay to CALLIOPE CAPITAL CORPORATION
(the “Holder”)
or its
registered assigns or successors in interest, the sum of Six Million Dollars
($6,000,000), or, the Holder’s Revolving Commitment Percentage of if different,
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 August 31, 2010 (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 Amended and Restated 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 Amended and Restated Secured Revolving
Note
(this “Note”):
ARTICLE
I
INTEREST
RATES AND PAYMENTS
1.1 Interest
Rate.
(a) Receivable
Revolving Loans.
Subject
to Sections 2.2 and 3.9, interest payable on the outstanding principal amount
of
Receivable Revolving Loans 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
two and one-half of one percent (2.5%) (the “Receivable
Loan Contract Rate”).
The
Receivable Loan 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 Receivable Loan Contract Rate shall
not
at any time be less than nine percent (9%) or more than thirteen percent (13%).
The Receivable Loan 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 as set forth above)
until the Maturity Date.
(b) Purchase
Order Revolving Loans.
Subject
to Sections 2.2 and 3.9, interest payable on the outstanding principal amount
of
Purchase Order Revolving Loans shall accrue at the rate of fifteen percent
(15%)
per annum (the “Purchase
Order Contract Rate”).
1.2 Interest
Payments.
Interest in respect of Receivable Revolving Loans and Purchase Order Revolving
Loans shall be (i) calculated on the basis of a 360 day year, and
(ii) payable monthly, in arrears, commencing on September 1, 2007 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.
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 additional interest on the
outstanding principal balance of this Note in an amount equal to two percent
(2%) per month, and all outstanding Obligations, including unpaid interest,
shall continue to accrue interest at such additional 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 twenty percent (120%) 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. 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. Notwithstanding anything
to
the contrary set forth herein, (a) if the Holder waives in writing any
Event of Default, the Companies shall be relieved of their obligation to make
the Default Payment with respect to such Event of Default and (b) no
Default Payment shall be due and payable following the occurrence of an Event
of
Default under Section 20(m) of the Security Agreement if such Event of Default
occurred solely as a result of the commencement of a civil proceeding against
any Company, any of its Subsidiaries or any executive office of any Company
or
any of its Subsidiaries unless a judgment, writ or warrant of attachment or
similar process shall be entered or filed against such Company, such Subsidiary
or such officer with respect to such proceeding.
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.
Following 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.
(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 OF
THE COMPANIES AND THE HOLDER 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, THE AGENT OR THE HOLDER, AS
APPLICABLE, 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, THE AGENT’S
OR THE HOLDER’S, AS APPLICABLE, 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.
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.
3.13 Amendment
and Restatement.
This
Note amends and restates in its entirety, and is given in substitution for
and
not in satisfaction of, that certain Secured Revolving Note dated as of August
17, 2007 by the Companies in favor of Calliope Capital Corporation in the
original principal amount of Five Million Dollars ($5,000,000).
[Balance
of page intentionally left blank; signature page follows]
IN
WITNESS WHEREOF,
each
Company has caused this Amended and Restated Secured Revolving Note to be signed
in its name this 31st day of March, 2008 and effective as of August 17,
2007.
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By:
Name:
Title:
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WITNESS:
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PROLINK SOLUTIONS, LLC
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By:
Name:
Title:
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WITNESS:
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SCHEDULE
1
OTHER
COMPANIES
ProLink
Solutions, LLC, a Delaware limited liability company