Contract
THIS
NOTE AND THE COMMON SHARES ISSUABLE UPON CONVERSION OF THIS NOTE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY STATE SECURITIES
LAWS. THIS NOTE AND THE COMMON SHARES ISSUABLE UPON CONVERSION OF 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
SECURED
CONVERTIBLE TERM NOTE
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 VALENS U.S. SPV I, LLC (the
“Holder”)
or its
registered assigns or successors in interest, the sum of One Million Four
Hundred Sixty-Five Thousand Three Hundred Twenty-Five Dollars and Twenty-Seven
Cents ($1,465,325.27), together with any accrued and unpaid interest hereon,
on
August 31, 2012 (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 that certain 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 Lenders (the “Agent”
together with the Lenders, collectively, the “Creditor
Parties”).
The
following terms shall apply to this Amended and Restated Secured Convertible
Term Note (this “Note”):
ARTICLE
I
CONTRACT
RATE AND AMORTIZATION
1.1 Contract
Rate.
Subject
to Sections 4.2 and 5.10, 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
two and one-half of one percent (2.5%) (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%) or more than thirteen percent (13%). Interest 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.
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 Principal
Payments.
Amortizing payments of the Principal Amount shall be made, jointly and
severally, by the Companies on October 1, 2008 and on the first Business Day
of
each succeeding month thereafter through and including the Maturity Date (each,
an “Amortization
Date”).
Subject to Article III below, commencing on the first Amortization Date, the
Companies shall make, jointly and severally, monthly payments to the Holder
on
each Amortization Date, each such payment in the amount of $24,422.09 together
with any accrued and unpaid interest on such portion of the Principal Amount
plus any and all other unpaid amounts which are then owing to the Holder under
this Note, the Security Agreement and/or any other Ancillary Agreement
(collectively, the “Monthly
Amount”).
Any
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.
ARTICLE
II
CONVERSION
AND REDEMPTION
2.1 Payment
of Monthly Amount.
(a) Payment
in Cash or Common Stock.
If the
Monthly Amount (or a portion of such Monthly Amount if not all of the Monthly
Amount may be converted into shares of Common Stock pursuant to Section 3.2)
is
required to be paid in cash pursuant to Section 2.1(b), then the Companies
shall
pay the Holder an amount in cash equal to 100% of the Monthly Amount (or such
portion of such Monthly Amount to be paid in cash) due and owing to the Holder
on the Amortization Date. If the Monthly Amount (or a portion of such Monthly
Amount if not all of the Monthly Amount may be converted into shares of Common
Stock pursuant to Section 3.2) is required to be paid in shares of Common Stock
pursuant to Section 2.1(b), the number of such shares to be issued by the Parent
to the Holder on such Amortization Date (in respect of such portion of the
Monthly Amount converted into shares of Common Stock pursuant to Section
2.1(b)), shall be the number determined by dividing (i) the portion of the
Monthly Amount converted into shares of Common Stock, by (ii) the then
applicable Fixed Conversion Price. For purposes hereof, subject to Section
3.6
hereof, the initial “Fixed
Conversion Price”
means
(i) with respect to the first $530,295.27 of the Principal Amount, $1.35;
(ii) with respect to the next $311,677.00 of the Principal Amount, $1.40;
(iii) with respect to the next $311,677.00 of the Principal Amount, $1.50;
and
(iii) with respect to the remaining $311,676.00 of the Principal Amount,
$1.67.
2
(b) Monthly
Amount Conversion Conditions.
Subject
to Sections 2.1(a), 2.2, and 3.2 hereof, the Holder shall convert into shares
of
Common Stock all or a portion of the Monthly Amount due on each Amortization
Date if the following conditions (the “Conversion
Criteria”)
are
satisfied: (i) the average closing price of the Common Stock as reported by
Bloomberg, L.P. on the Principal Market for the five (5) trading days
immediately preceding such Amortization Date shall be greater than or equal
to
118% of the Fixed Conversion Price and (ii) the amount of such conversion does
not exceed twenty five percent (25%) of the aggregate dollar trading volume
of
the Common Stock for the period of twenty-two (22) trading days immediately
preceding and including such Amortization Date. If subsection (i) of the
Conversion Criteria is met but subsection (ii) of the Conversion Criteria is
not
met as to the entire Monthly Amount, the Holder shall convert only such part
of
the Monthly Amount that meets subsection (ii) of the Conversion Criteria. Any
portion of the Monthly Amount due on an Amortization Date that the Holder has
not been able to convert into shares of Common Stock due to the failure to
meet
the Conversion Criteria, shall be paid in cash by the Companies, jointly and
severally within three (3) Business Days of such Amortization Date.
2.2 No
Effective Registration.
Notwithstanding anything to the contrary herein, the Parent shall not be
permitted to pay any part of its obligations, or the obligations of any other
Company, to the Holder hereunder in shares of Common Stock if (i) there
fails to exist an effective current Registration Statement (as defined in the
Registration Rights Agreement) covering the resale of the shares of Common
Stock
to be issued in connection with such payment and there fails to exist an
exemption from registration for resale available pursuant to Rule 144 of the
Securities Act and in respect of the Common Stock to be issued in connection
with such payment or (ii) an Event of Default (as hereinafter defined)
exists and is continuing, unless such Event of Default is cured within any
applicable cure period or otherwise waived in writing by the
Holder.
2.3 Optional
Redemption in Cash.
The
Companies may prepay this Note (“Optional
Redemption”)
by
paying to the Holder a sum of money equal to one hundred percent (100%) of
the
Principal Amount outstanding at such time if such payment occurs prior to the
first anniversary of the Original Closing Date, 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”).
A
Notice of Redemption shall not be effective with respect to any portion of
this
Note for which the Holder has previously delivered a Notice of Conversion (as
hereinafter defined) or for conversions elected to be made by the Holder
pursuant to Article III during the Redemption Period. The Redemption Amount
shall be determined as if the Holder’s conversion elections had been completed
immediately prior to the date of the Notice of Redemption. 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.
3
ARTICLE
III
HOLDER’S
CONVERSION RIGHTS
3.1 Optional
Conversion.
Subject
to the terms set forth in this Article III, on or after August 17, 2008, the
Holder shall have the right, but not the obligation, to convert all or any
portion of the issued and outstanding Principal Amount and/or accrued interest
and fees due and payable into fully paid and non-assessable shares of Common
Stock at the applicable Fixed Conversion Price. The shares of Common Stock
to be
issued upon such conversion are herein referred to as, the “Conversion
Shares.”
3.2 Conversion
Limitation.
(a) Notwithstanding
anything herein to the contrary, in no event shall the Holder be entitled to
convert any portion of this Note in excess of that portion of this Note upon
exercise of which the sum of (1) the number of shares of Common Stock
beneficially owned by the Holder and its Affiliates (other than shares of Common
Stock which may be deemed beneficially owned through the ownership of the
unconverted portion of this Note or the unexercised or unconverted portion
of
any other security of the Holder subject to a limitation on conversion analogous
to the limitations contained herein) and (2) the number of shares of Common
Stock issuable upon the conversion of the portion of this Note with respect
to
which the determination of this proviso is being made, would result in
beneficial ownership by the Holder and its Affiliates of any amount greater
than
9.99% of the then outstanding shares of Common Stock (whether or not, at the
time of such conversion, the Holder and its Affiliates beneficially own more
than 9.99% of the then outstanding shares of Common Stock). As used herein,
the
term “Affiliate”
means
any person or entity that, directly or indirectly through one or more
intermediaries, controls or is controlled by or is under common control with
a
person or entity, as such terms are used in and construed under Rule 144 under
the Securities Act. For purposes of the second preceding sentence, beneficial
ownership shall be determined in accordance with Section 13(d) of the Securities
Exchange Act of 1934, as amended, and Regulations 13D-G thereunder, except
as
otherwise provided in clause (1) of such sentence. For any reason at any time,
upon written or oral request of the Holder, the Parent shall within one (1)
Business Day confirm orally and in writing to the Holder the number of shares
of
Common Stock outstanding as of any given date. The limitations set forth herein
(x) shall automatically become null and void (i) following notice to the
Parent upon the occurrence and during the continuance of an Event of Default
(as
defined in the Security Agreement), or (ii) upon receipt by the Holder of a
Notice of Redemption and (y) may be waived by the Holder upon provision of
no
less than sixty-one (61) days prior written notice to the Parent; provided,
however, that, such written notice of waiver shall only be effective if
delivered at a time when no indebtedness (including, without limitation,
principal, interest, fees and charges) of the Companies of which the Holder
or
any of its Affiliates was, at any time, the owner, directly or indirectly is
outstanding.
(b) Trading
Limitation.
Notwithstanding anything herein to the contrary, the Holder shall not, on any
trading day, trade shares of the Common Stock issued to the Holder pursuant
to
this Note on the Principal Market in which such Common Stock is listed in excess
of ten percent (10%) of the average daily trading volume of the Common Stock
for
the period of ten (10) trading days immediately preceding such trading
date.
4
3.3 Mechanics
of Holder’s Conversion.
In the
event that the Holder elects to convert this Note into Common Stock, the Holder
shall give notice of such election by delivering an executed and completed
notice of conversion in substantially the form of Exhibit
A
hereto
(appropriate completed) (“Notice
of Conversion”)
to the
Parent and such Notice of Conversion shall provide a breakdown in reasonable
detail of the Principal Amount, accrued interest and fees that are being
converted. On each Conversion Date (as hereinafter defined) and in accordance
with its Notice of Conversion, the Holder shall make the appropriate reduction
to the Principal Amount, accrued interest and fees as entered in its records
and
shall provide written notice thereof to the Parent within two (2) Business
Days
after the Conversion Date. Each date on which a Notice of Conversion is
delivered or transmitted by facsimile to the Parent in accordance with the
provisions hereof shall be deemed a Conversion Date (the “Conversion
Date”).
Pursuant to the terms of the Notice of Conversion, the Parent will issue
instructions to the transfer agent accompanied by an opinion of counsel within
one (1) Business Day of the date of the delivery to the Parent of the Notice
of
Conversion and shall cause the transfer agent to transmit the certificates
representing the Conversion Shares to the Holder by crediting the account of
the
Holder’s designated broker with the Depository Trust Corporation (“DTC”)
through its Deposit Withdrawal Agent Commission (“DWAC”)
system
within three (3) Business Days after receipt by the Parent of the Notice of
Conversion (the “Delivery
Date”).
In
the case of the exercise of the conversion rights set forth herein the
conversion privilege shall be deemed to have been exercised and the Conversion
Shares issuable upon such conversion shall be deemed to have been issued upon
the date of receipt by the Parent of the Notice of Conversion. The Holder shall
be treated for all purposes as the record holder of the Conversion Shares,
unless the Holder provides the Parent written instructions to the
contrary.
3.4 Late
Payments.
The
Companies understand that a delay in the delivery of the Conversion Shares
in
the form required pursuant to this Article III beyond the Delivery Date could
result in economic loss to the Holder. As compensation to the Holder for such
loss, in addition to all other rights and remedies which the Holder may have
under this Note, applicable law or otherwise, the Companies shall, jointly
and
severally, pay late payments to the Holder for any late issuance of Conversion
Shares in the form required pursuant to this Article III upon conversion of
this
Note, in the amount equal to $250 per Business Day after the Delivery Date.
The
Companies shall, jointly and severally, make any payments incurred under this
Section in immediately available funds upon demand.
3.5 Conversion
Mechanics.
The
number of shares of Common Stock to be issued upon each conversion of this
Note
shall be determined by dividing that portion of the principal and interest
and
fees to be converted, if any, by the then applicable Fixed Conversion Price.
In
the event of any conversions of a portion of the outstanding Principal Amount
pursuant to this Article III, such conversions shall be deemed to constitute
conversions of the outstanding Principal Amount applying to Monthly Amounts
for
the remaining Amortization Dates in chronological order.
5
3.6 Adjustment
Provisions.
The
Fixed Conversion Price and number and kind of shares or other securities to
be
issued upon conversion determined pursuant to this Note shall be subject to
adjustment from time to time upon the occurrence of certain events during the
period that this conversion right remains outstanding, as follows:
(a) Reclassification.
If the
Parent at any time shall, by reclassification or otherwise, change the Common
Stock into the same or a different number of securities of any class or classes,
this Note, as to the unpaid Principal Amount and accrued interest thereon,
shall
thereafter be deemed to evidence the right to purchase an adjusted number of
such securities and kind of securities as would have been issuable as the result
of such change with respect to the Common Stock (i) immediately prior to or
(ii)
immediately after, such reclassification or other change at the sole election
of
the Holder.
(b) Stock
Splits, Combinations and Dividends.
If the
shares of Common Stock are subdivided or combined into a greater or smaller
number of shares of Common Stock, or if a dividend is paid on the Common Stock
or any preferred stock issued by the Parent in shares of Common Stock, the
Fixed
Conversion Price shall be proportionately reduced in case of subdivision of
shares or stock dividend or proportionately increased in the case of combination
of shares, in each such case by the ratio which the total number of shares
of
Common Stock outstanding immediately after such event bears to the total number
of shares of Common Stock outstanding immediately prior to such
event.
3.7 Reservation
of Shares.
During
the period the conversion right exists, the Parent will reserve from its
authorized and unissued Common Stock a sufficient number of shares to provide
for the issuance of Conversion Shares upon the full conversion of this Note
and
the Warrant. The Parent represents that upon issuance, the Conversion Shares
will be duly and validly issued, fully paid and non-assessable. The Parent
agrees that its issuance of this Note shall constitute full authority to its
officers, agents, and transfer agents who are charged with the duty of executing
and issuing stock certificates to execute and issue the necessary certificates
for the Conversion Shares upon the conversion of this Note.
3.8 Registration
Rights.
The
Holder has been granted registration rights with respect to the Conversion
Shares as set forth in the Registration Rights Agreement.
3.9 Issuance
of New Note.
Upon
any partial conversion of this Note, a new Note containing the same date and
provisions of this Note shall, at the request of the Holder, be issued by the
Companies to the Holder for the principal balance of this Note and interest
which shall not have been converted or paid. Subject to the provisions of
Article IV of this Note, the Companies shall not pay any costs, fees or any
other consideration to the Holder for the production and issuance of a new
Note.
3.10 Rights
of Shareholders.
No
Holder shall be entitled to vote or receive dividends or be deemed the holder
of
the Note Shares or any other securities of the Parent which may at any time
be
issuable upon conversion of this Note for any purpose, nor shall anything
contained herein be construed to confer upon the Holder, as such, any of the
rights of a shareholder of the Parent or any right to vote for the election
of
directors or upon any matter submitted to shareholders at any meeting thereof,
or to give or withhold consent to any corporate action (whether upon the
recapitalization, issuance of shares, reclassification of shares, change of
nominal value, consolidation, merger, conveyance or otherwise) or to receive
notice of meetings, or to receive dividends or subscription rights or otherwise,
in each case, until the Delivery Date applicable to the respective Note Shares
purchasable upon the conversion hereof shall have occurred as provided
herein.
6
ARTICLE
IV
EVENTS
OF DEFAULT
4.1 Events
of Default.
The
occurrence of any Event of Default under the Security Agreement shall constitute
an event of default (“Event
of Default”)
hereunder.
4.2 Default
Interest.
Following the occurrence and during the continuance of an Event of Default,
each
Company 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 under this Note, the Security Agreement and
each
other Ancillary Agreement, 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.
4.3 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. The Default
Payment shall be applied first to any fees due and payable to the Holder
pursuant to the Notes and/or the Ancillary Agreements, then to accrued and
unpaid interest due on the Notes, the Security Agreement and then to the
outstanding principal balance of the Notes. 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 4.3. 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.
7
ARTICLE
V
MISCELLANEOUS
5.1 Conversion
Privileges.
The
conversion privileges set forth in Article III shall remain in full force and
effect immediately from the date hereof until the date this Note is indefeasibly
paid in full and irrevocably terminated.
5.2 Cumulative
Remedies.
The
remedies under this Note shall be cumulative.
5.3 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.
5.4 Notices.
Any
notice herein required or permitted to be given shall be given in writing in
accordance with the terms of the Security Agreement.
5.5 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.
5.6 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.
5.7 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.
5.8 Governing
Law, Jurisdiction and Waiver of Jury Trial.
8
(a) THIS
NOTE
SHALL BE GOVERNED BY AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS
OF
THE STATE OF NEW YORK, WITHOUT REGARD TO 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 OR ANY OF THE OTHER ANCILLARY AGREEMENTS OR TO ANY
MATTER ARISING OUT OF OR RELATED TO THIS NOTE OR ANY OF THE 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.
9
(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, ON THE ONE HAND, 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, ANY OTHER
ANCILLARY AGREEMENT OR THE TRANSACTIONS RELATED HERETO OR THERETO.
5.9 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.
5.10 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.
10
5.11 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 other Ancillary Agreements.
5.12 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.
5.13 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.
5.14 Amendment
and Restatement.
This
Note is one of the Notes that amends and restates in its entirety, and is given
in substitution for and not in satisfaction of, that certain Secured Convertible
Term Note dated as of August 17, 2007 by the Companies in favor of Calliope
Capital Corporation (“Original
Holder”)
in the
original principal amount of Four Million Dollars ($4,000,000), as assigned
by
Original Holder to each of Valens U.S. SPV I, LLC, Valens Offshore SPV I, Ltd.
and PSource Structured Debt Limited.
[Balance
of page intentionally left blank; signature page follows]
11
IN
WITNESS WHEREOF,
each
Company has caused this Amended and Restated Secured Convertible Term Note
to be
signed in its name this 31st day of March, 2008 and effective as of August
17,
2007.
|
By:
Name:
Title:
|
|
|
WITNESS:
|
|
|
PROLINK
SOLUTIONS, LLC
By:
Name:
Title:
|
|
|
WITNESS:
|
SIGNATURE
PAGE TO
AMENDED
AND RESTATED
SECURED
CONVERTIBLE TERM NOTE
12
SCHEDULE
1
ProLink
Solutions, LLC, a Delaware limited liability company
13
EXHIBIT
A
NOTICE
OF CONVERSION
(To
be
executed by the Holder in order to convert all or part of
the
Amended and Restated Secured Convertible Term Note into Common
Stock)
000
Xxxxxx Xxxx
Xxxxxxxx,
Xxxxxxx 00000
Attention: Chief
Financial Officer
The
undersigned hereby converts $_________ of the principal due on [specify
applicable Repayment Date] under the Amended and Restated Secured Convertible
Term Note dated March 31, 2008 (the “Note”)
issued
by ProLink Holdings Corp. (the “Parent”)
and
certain of its Subsidiaries by delivery of shares of Common Stock of the Parent
(“Shares”)
on and
subject to the conditions set forth in the Note.
1. Date
of
Conversion
2. Shares
To
Be Delivered:
[HOLDER]
By:
Name:
Title:
14
