Pac-West Telecomm, Inc. Exhibit 10.2


    AMENDED
      AND RESTATED 

    COLLATERAL
      INSTALLMENT NOTE

    
      
        

      

    

    
      
        

      

    

    $5,405,330.86                                                                                                                           February
      27, 2007

     

    FOR
      VALUE RECEIVED,
      PAC-WEST TELECOMM, INC., a corporation organized and existing under the laws
      of
      the State of California (“Customer”) hereby promises to pay to the order of
MERRILL
      LYNCH CAPITAL, a division of MERRILL LYNCH BUSINESS FINANCIAL SERVICES
      INC.,
      a
      corporation organized and existing under the laws of the State of Delaware
      (“MLC”), in lawful money of the United States, the principal sum of Five Million
      Four Hundred Five Thousand Three Hundred Thirty and 86/100 Dollars ($5,405,330.86),
      or if more or less, the aggregate amount advanced by MLC to Customer pursuant
      to
      the Loan Agreement (the “Loan Amount”); together with interest on the unpaid
      balance of the Loan Amount, from the Closing Date until payment, at the Interest
      Rate, as follows:

    


    1.  DEFINITIONS.

    


    (a) In
      addition to terms defined elsewhere in this Note, as used herein, the following
      terms shall have the following meanings:

    


    
      	(i)
                	
              “Closing
                Date” shall mean the date the funds are advanced or deemed advanced
                hereunder.

            


    

     

    
      	(ii)
                	
              “Excess
                Interest” shall
                mean any amount or rate of interest (including the Default Rate and,
                to
                the extent that they may be deemed to constitute interest, any prepayment
                fees, late charges and other fees and charges) payable, charged or
                received in connection with any of the Loan Documents which exceeds
                the
                maximum amount or rate of interest permitted under applicable
                law.

            


    

     

    
      	(iii)
                	
              “Interest
                Rate” shall mean a rate equal to 9.11% per
                annum.

            


    

     

    
      	(iv)
                	
              “Loan
                Agreement” shall mean that certain AMENDED
                AND RESTATED TERM LOAN AND SECURITY AGREEMENT dated
                as of the date hereof between Customer and MLC, as the same may have
                been
                or may hereafter be amended or
                supplemented.

            


    

     

    
      	(v)
                	
              “Note”
                shall mean this AMENDED
                AND RESTATED COLLATERAL INSTALLMENT NOTE.

            


    

     

    (b) Capitalized
      terms used herein and not defined herein shall have the meaning set forth in
      the
      Loan Agreement. Without limiting the foregoing, the terms “Loan Documents”,
“Bankruptcy Event” and “Event of Default” shall have the respective meanings set
      forth in the Loan Agreement.

     

    2. PAYMENT
      AND OTHER TERMS.
      Customer
      shall pay the indebtedness under this Note in 30 consecutive monthly
      installments commencing on the Closing Date and continuing on the first day
      of
      each calendar month thereafter until this Note shall be paid in full. Each
      such
      installment shall be in the amounts listed below which will fully amortize
      the
      Loan Amount with accrued interest in equal monthly installments over a term
      of
      30 months:

    


    (i)
      $75,000 on March 1, 2007;

    


    (ii)
      $75,000 on the first day of each of the next 14 calendar months following the
      Closing Date; and 

    


    (iii)
      thereafter, $125,000 on the first day of each of the next 14 calendar months
      (through and including July 1, 2009), with the final balance, including (i)
      all
      accrued and unpaid interest thereon and (iii) all of MLC costs and expenses
      (including reasonable fees and expenses of MLC’s attorneys and accountants,
      other than such fees and expenses paid on or prior to the Closing Date in
      connection with the execution of the Restructuring Agreement, the Loan Agreement
      or this Note) of enforcing this Note, due and payable in full on August 1,
      2009.

    


    Each
      payment received hereunder shall be applied first
      to any
      fees and expenses of MLC payable by Customer under the terms of the Loan
      Agreement (including, without limitation, late charges), next
      to
      accrued interest at the Interest Rate,
      with
      the balance
      applied
      on account of the unpaid principal hereof or in such other manner as the holder
      hereof may from time to time hereinafter determine for the allocation of such
      payments thereof. Any part of the principal hereof or interest hereon or other
      sums payable hereunder or under the Loan Agreement not paid within five (5)
      days
      of the applicable due date shall be subject to a late charge equal to the lesser
      of (i) 5% of the overdue amount, or (ii) the maximum amount permitted by law.
      All interest shall be computed on the basis of actual days elapsed over a
      360-day year.

    


    Customer,
      without premium or penalty, may prepay this Note in whole or in part at any
      time
      and from time to time.

     

    This
      Note
      is the Amended and Restated Collateral Installment Note referred to in, and
      is
      entitled to all of the benefits of the Loan Agreement and any Loan Documents.
      If
      Customer shall fail to pay when due any installment or other sum due hereunder,
      and any such failure shall continue for more than five (5) Business Days from
      the due date, or if any other Event of Default shall have occurred and be
      continuing, then at the option of the holder hereof (or, upon the occurrence
      of
      any Bankruptcy Event, automatically, without any action on the part of the
      holder hereof), and in addition to all other rights and remedies available
      to
      such holder under the Loan Agreement, any Loan Documents, and otherwise, the
      entire Loan Amount at such time remaining unpaid, together with accrued interest
      thereon and all other sums then owing by Customer under the Loan Agreement,
      may
      be declared to be and thereby become immediately due and payable.

    


    It
      is
      expressly understood, however, that nothing contained in the Loan Agreement,
      any
      other agreement, instrument or document executed by Customer, or otherwise,
      shall affect or impair the right, which is unconditional and absolute, of the
      holder hereof to enforce payment of all sums due under this Note at or after
      maturity, whether by acceleration or otherwise, or shall affect the obligation
      of Customer, which is also unconditional and absolute, to pay the sums payable
      under this Note in accordance with its terms. Except as otherwise expressly
      set
      forth herein or in the Loan Agreement, Customer hereby waives presentment,
      demand for payment, protest and notice of protest, notice of dishonor, notice
      of
      acceleration, notice of intent to accelerate and all other notices and
      formalities in connection with this Note.

    


    Wherever
      possible each provision of this Note shall be interpreted in such manner as
      to
      be effective and valid under applicable law, but if any provision of this Note
      shall be prohibited by or invalid under such law, such provision shall be
      ineffective to the extent of such prohibition or invalidity without invalidating
      the remainder of such provision or the remaining provisions of this Note.
      Notwithstanding
      any provision to the contrary in this Note,
      the
      Loan Agreement or any of the Loan Documents, no
      provision of this Note,
      the
      Loan Agreement or any of the Loan Documents shall
      require the payment or permit the collection of any Excess Interest. If any
      Excess Interest is provided for, or is adjudicated as being provided for, in
      this Note,
      the
      Loan Agreement or any of the Loan
      Documents, then: (a) Customer shall not be obligated to pay any Excess Interest;
      and (b)
      If
      any
      Excess Interest is provided for, or is adjudicated as being provided for, in,
      then: (i) Customer shall not be obligated to pay any Excess Interest; and (ii)
      any Excess Interest that MLC may have received under any
      of
      the Loan Documents shall,
      at
      the option of MLC, be applied as a credit against the then unpaid principal
      balance of this Note, or accrued interest hereon not to exceed the maximum
      amount permitted by law or refunded to the payor thereof. 

     

    Upon
      the
      occurrence and during the continuance of any Event of Default, but without
      limiting the rights and remedies otherwise available to MLC hereunder or waiving
      such Event of Default, the interest payable by Customer hereunder shall at
      the
      option of MLC accrue and be payable at the Default Rate. The Default Rate,
      once
      implemented, shall continue to apply to the Obligations under this Note, the
      Loan Agreement or any of the Loan Documents and be payable by Customer until
      the
      date MLC gives written notice (which shall not be unreasonably delayed or
      withheld) that such Event of Default has been cured to the satisfaction of
      MLC.

    This
      Note
      shall be construed in accordance with the laws of the State of Illinois and
      may
      be enforced by the holder hereof in any jurisdiction in which the Loan Agreement
      may be enforced.

     

    THIS
      NOTE SUPERSEDES, AMENDS AND RESTATES THAT CERTAIN (I) COLLATERAL INSTALLMENT
      NOTE DATED MAY 21, 2004 IN THE ORIGINAL PRINCIPAL AMOUNT OF TWO MILLION FOUR
      HUNDRED THOUSAND EIGHT HUNDRED EIGHTY SEVEN AND 18/100 DOLLARS ($2,400,887.18)
      (“MAY
      2004 NOTE”),
      (II) COLLATERAL INSTALLMENT NOTE DATED JULY 2, 2004 IN THE ORIGINAL PRINCIPAL
      AMOUNT OF TWO MILLION NINE HUNDRED NINETY SIX THOUSAND FOUR HUNDRED FORTY FIVE
      AND 82/100 DOLLARS ($2,996,445.82) (“JULY
      2004 NOTE”),
      (III) COLLATERAL INSTALLMENT NOTE DATED MAY 27, 2005 IN THE ORIGINAL PRINCIPAL
      AMOUNT OF ONE MILLION NINE HUNDRED FORTY NINE THOUSAND NINETY AND 94/100 DOLLARS
      ($1,949,090.94) (“MAY
      2005 NOTE”)
      AND (IV) COLLATERAL INSTALLMENT NOTE DATED NOVEMBER 30, 2005 IN THE ORIGINAL
      PRINCIPAL AMOUNT OF FOUR MILLION FOUR HUNDRED SEVENTY FOUR THOUSAND, FIVE
      HUNDRED EIGHTY EIGHT AND 64 /100 DOLLARS ($4,474,588.64) (“NOVEMBER
      2005 NOTE”
      AND TOGETHER WITH THE MAY 2004 NOTE, JULY 2004 NOTE AND MAY 2005 NOTE, THE
      “ORIGINAL
      NOTES”).
      THIS NOTE IS ISSUED IN SUBSTITUTION AND REPLACEMENT OF THE ORIGINAL NOTES AND
      NOT IN PAYMENT THEREOF, AND ANY AND ALL AMOUNTS OUTSTANDING PURSUANT TO SUCH
      ORIGINAL NOTES, INCLUDING, WITHOUT LIMITATION, ALL ACCRUED AND UNPAID INTEREST,
      SHALL BE EVIDENCED HEREBY AND PAID IN ACCORDANCE WITH THE TERMS HEREOF. IN
      NO
      EVENT SHALL THIS NOTE BE DEEMED TO CONSTITUTE A NOVATION OF THE ORIGINAL NOTES
      OR A DISCHARGE OF THE INDEBTEDNESS EVIDENCED THEREBY.

     

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    IN
      WITNESS WHEREOF,
      this
      Note has been executed by Customer as of the day and year first above
      written.

    


    


    PAC-WEST
      TELECOMM, INC.

     

    By:  

    Signature    
      /s/ Michael L. Sarina  

     

     

    Printed
      Name     Michael L. Sarina

     

     

    Title    
      Chief Financial Officer