FINOVA
SECURED REVOLVING CREDIT NOTE
$12,000,000 November , 1996
FOR VALUE RECEIVED, the undersigned, INTELLICALL, INC. (the
"Undersigned"), a Delaware corporation with a principal place of business at
0000 Xxxxxxxx Xxxxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxx 00000-0000, hereby promises
to pay to FINOVA CAPITAL CORPORATION ("FINOVA"), or order, at 000 Xxxxx Xxxxxx
Xxxxxx, Xxxxx 0000, Xxx Xxxxxxx, Xxxxxxxxxx 00000 or at such other address as
the holder may specify in writing, the principal sum of Twelve Million Dollars
($12,000,000), or such lesser sum which represents the principal balance of
Loans outstanding under the Total Facility established pursuant to the
provisions of that certain Loan and Security Agreement dated of even date
herewith, between the Undersigned and FINOVA (the "Agreement"), plus interest in
the manner and upon the terms and conditions set forth below. This Secured
Revolving Credit Note ("Note") is made pursuant to the Agreement, the provisions
of which are incorporated herein by this reference. Capitalized terms herein,
unless otherwise noted, shall have the meaning set forth in the Agreement. The
actual amount due and owing hereunder shall be evidenced by XXXXXX's records of
receipts and disbursements with respect to Loans, which records shall be
conclusive evidence of such amount due and owing under the Loan Agreement absent
manifest error.
1.0 Rate And Payment Of Interest.
The outstanding principal balance of this Note shall bear interest at
the Contract Rate. The Contract Rate shall be a per annum rate of one and three
quarters percentage points (1.75%) in excess of the Base Rate subject to
reduction as set forth in the Schedule to the Agreement. The interest rate
chargeable hereunder shall be increased or decreased, as the case may be,
without notice or demand of any kind, upon the announcement of any change in the
Base Rate. Each change in the Base Rate shall be effective hereunder on the
first day following the announcement of such change. Interest charges and all
other fees and charges herein shall be computed on the basis of a year of 360
days and actual days elapsed and shall be payable to FINOVA in arrears on the
first day of each month hereafter at its address set forth above. Accrued but
unpaid interest under this Note shall be due and payable on the first day of
each month, commencing December 1, 1996, and at maturity, on which date all
interest remaining unpaid shall be due and payable.
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2.0 Schedule Of Principal Payments.
A final installment of all outstanding principal, accrued and unpaid
interest and all other sums payable pursuant to the Loan Documents on November
30, 1999, unless due earlier pursuant to the terms of the Loan Agreement.
3.0 Prepayment.
Prepayment may be made under this Note in whole or in part, subject to
the Termination Fee, as applicable, as set forth in the Agreement.
4.0 Xxxxxx's Right Of Acceleration.
If the Agreement is terminated for any reason whatsoever, or if there
shall occur an Event of Default or if this Note is not paid when due, the entire
remaining principal balance and all accrued and unpaid interest and other fees
and charges with respect to this Note shall, at FINOVA's option, become
immediately due and payable.
5.0 Holder's Rights Upon Default.
If any Event of Default occurs, then from the date such Event of
Default occurs until it is cured or waived in writing, in addition to any agreed
upon charges, the principal balance of this Note shall thereafter, at FINOVA's
option, bear interest at two percentage points (2.0%) per annum in excess of the
Contract Rate, computed on the basis of a year of three hundred sixty (360) days
and the actual number of days elapsed.
6.0 Additional Rights Of Holder.
If any installment of principal or interest hereunder is not paid when
due, the holder shall have, in addition to the rights set forth herein, in the
Agreement and under law, the right to compound interest by adding the unpaid
interest to principal, with such amount thereafter bearing interest at the rate
provided in this Note.
7.0 General Provisions.
7.1 If this Note is not paid when due or upon the occurrence of an
Event of Default, the Undersigned further promises to pay all costs of
collection, foreclosure fees, attorneys' fees and expert witness fees
incurred by the holder, whether or not
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suit is filed hereon, and the fees, costs and expenses as
provided in the Agreement.
7.2 The Undersigned hereby consents to any and all renewals,
replacements and/or extensions of time for payment of this Note before,
at or after maturity.
7.3 The Undersigned hereby consents to the acceptance,
release or substitution of security for this Note.
7.4 Presentment for payment, notice of dishonor, protest and
notice of protest are hereby expressly waived by the
Undersigned.
7.5 The contracted for rate of interest of the loan contemplated
hereby, without limitation, shall consist of the following: (i) the
interest rate set forth on the Schedule, calculated and applied to the
principal balance of this Note in accordance with the provisions of
this Note; (ii) interest after an Event of Default, calculated and
applied to the amounts due under this Note in accordance with the
provisions hereof including, without limitation, after entry of a
judgment; and (iii) all Additional Sums (as herein defined), if any.
The Undersigned agrees to pay an effective contracted for rate of
interest which is the sum of the above-referenced elements. All
examination fees, attorneys' fees, expert witness fees, letter of
credit fees, collateral monitoring fees, closing fees, Facility Fees,
Termination Fees, Unused Line Fees, minimum interest charges, other
charges, goods, things in action or any other sums or things of value
paid or payable by the Undersigned (collectively, the "Additional
Sums), whether pursuant to this Note, the Agreement or any other
documents or instruments in any way pertaining to this lending
transaction, or otherwise with respect to this lending transaction,
that under any applicable law may be deemed to be interest with respect
to this lending transaction, for the purpose of any applicable law that
may limit the maximum amount of interest to be charged with respect to
this lending transaction, shall be payable by the Undersigned as, and
shall be deemed to be, additional interest and for such purposes only,
the agreed upon and "contracted for rate of interest" of this lending
transaction shall be deemed to be increased by the rate of interest
resulting from the inclusion of the Additional Sums.
It is the intent of the parties to comply with the usury law of the
State of Arizona (the "Applicable Usury Law"). Accordingly, it is
agreed that notwithstanding any provisions to the contrary in this
Note, or in any of the documents securing payment hereof or otherwise
relating hereto, in no event shall this Note or such documents require
the payment or permit the collection of interest in excess of the
maximum
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contract rate permitted by the Applicable Usury Law (the "Maximum
Interest Rate"). In the event (a) any such excess interest otherwise
would be contracted for, charged or received from the Undersigned or
otherwise in connection with the loan evidenced hereby, (b) the
maturity of indebtedness evidenced by this Note is accelerated in whole
or in part, or (c) all or part of the principal or interest of this
Note shall be prepaid, so that under any of such circumstances the
amount of interest contracted for, shared or received in connection
with the loan evidenced hereby, would exceed the Maximum Interest Rate,
then in any such event (1) the provisions of this paragraph shall
govern and control, (2) neither the Undersigned nor any other person or
entity now or hereafter liable for the payment hereof shall be
obligated to pay the amount of such interest to the extent that it is
in excess of the Maximum Interest Rate, (3) any such excess which may
have been collected shall be either applied as a credit against the
then unpaid principal amount hereof or refunded to the Undersigned, at
FINOVA's option, and (4) the effective rate of interest shall be
automatically reduced to the Maximum Interest Rate. It is further
agreed, without limiting the generality of the foregoing, that to the
extent permitted by the Applicable Usury Law; (x) all calculations of
interest which are made for the purpose of determining whether such
rate would exceed the Maximum Interest Rate shall be made by
amortizing, prorating, allocating and spreading during the period of
the full stated term of the loan evidenced hereby as modified by any
actual termination thereof, all interest at any time contracted for,
charged or received from the Undersigned or otherwise in connection
with such loan; and (y) in the event that the effective rate of
interest on the loan should at any time exceed the Maximum Interest
Rate, such excess interest that would otherwise have been collected had
there been no ceiling imposed by the Applicable Usury Law shall be paid
to FINOVA from time to time, if and when the effective interest rate on
the loan otherwise falls below the Maximum Interest Rate, to the extent
that interest paid to the date of calculation does not exceed the
Maximum Interest Rate, until the entire amount of interest which would
otherwise have been collected had there been no ceiling imposed by the
Applicable Usury Law has been paid in full. The Undersigned further
agrees that should the Maximum Interest Rate be increased at any time
hereafter because of a change in the Applicable Usury Law, then to the
extent not prohibited by the Applicable Usury Law, such increases shall
apply to all indebtedness evidenced hereby regardless of when incurred.
7.6 No delay or omission on the part of the holder of this Note in
exercising any right shall operate as a waiver thereof or of any other
right.
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7.7 No waiver by the holder of this Note upon any one occasion shall be
effective unless in writing nor shall it be construed as a bar or
waiver of any right or remedy on any future occasion.
7.8 Time is of the essence for the performance by the
Undersigned of the obligations set forth in this Note.
7.9 Should any one or more of the provisions of this Note be
determined illegal or unenforceable, all other provisions
shall nevertheless remain effective.
7.10 This Note cannot be changed, modified, amended or
terminated orally.
7.11 This Note shall be governed by, construed and enforced in
accordance with the laws of the State of Arizona, without reference to
the principles of conflicts of laws thereof.
7.12 THE UNDERSIGNED HEREBY IRREVOCABLY WAIVES ANY RIGHT TO A TRIAL BY
JURY IN ANY ACTION TO ENFORCE OR DEFEND ANY MATTER ARISING FROM OR
RELATED TO THIS NOTE AND ACKNOWLEDGES THAT FINOVA ALSO WAIVES SUCH
RIGHT.
8.0 Security For This Note.
This Note is secured pursuant to the Agreement and is subject to all of
the terms and conditions thereof, including, but not limited to, the remedies
specified therein.
IN WITNESS WHEREOF, this Secured Revolving Credit Note has been
executed and delivered as of the date first set forth above.
INTELLICALL, INC.
date signed By:/s/ Xxxxxxx X. Xxxx
11/13/96 Xxxxxxx X. Xxxx
Title: President
Tax I.D. No.: 751993841
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