exv10w3



 




Exhibit
10.3


REVOLVING PROMISSORY NOTE





			
	$1,000,000.00
	 	May 6, 2005          






     FOR VALUE RECEIVED, ProLink Solutions, LLC, a Delaware corporation
(“Borrower”), hereby promises to pay to the order of FOC Financial Limited
Partnership, an Arizona limited partnership (“Lender”), or its endorsees, successors
or assigns (including the Lender, the “Holder”), the principal sum of One Million and
No/100 Dollars ($1,000,000.00) (the “Maximum Amount”), or so much thereof as may be
advanced from time to time by Lender, in immediately available funds and in lawful money of the
United States of America, together with interest on the outstanding balance thereof, all as
provided in this Revolving Note (this “Note”).



     1. Loan Agreement. This Note is made and given in connection with that
certain Letter Loan Agreement dated May 6, 2005 between Borrower and Lender (the “Loan Agreement”),
and all of the terms and conditions of the Loan Agreement, including, without limitation, the
“standstill” provisions, are incorporated in this Note by reference as if fully stated herein.



     2. Advances. Upon written request of Borrower to Lender from time to time and
upon compliance with the terms and conditions of the (“Loan Agreement”), Holder may, in its sole
discretion, advance funds to Borrower under this Note not to exceed the Maximum Amount in one or
more advances at any time and from time to time from the date hereof through and including May 5,
2006 (the “Funding Termination Date”). The principal amount of this Note may be borrowed,
repaid and reborrowed from time to time. Holder may request documentation or information, as Holder
shall reasonably require as a condition to each such advance.



     3. Interest. The outstanding principal balance of this Note shall bear simple
interest at twelve percent (12%) per annum (the “Regular Rate”), computed on the basis that
each month contains thirty (30) days and each year contains three hundred sixty (360) days.



     4. Payments of Interest. The accrued and unpaid interest on the principal
balance of this Note outstanding from time to time, shall be paid in monthly interest only
installments on the fifth (5th) day of the following month with respect to any month in
which any advances are outstanding.



     5. Payment of Principal; Maturity Date. Borrower agrees to pay in full the
entire outstanding principal balance of this Note, accrued and unpaid interest, and all other
unpaid amounts owing under this Note on or before ninety (90) days after the Funding Termination
Date (the “Maturity Date”).



 









 





     6. Optional Prepayments. The indebtedness evidenced by this Note may be
prepaid in whole or in part at any time without premium or penalty.



     7. Manner of Payment. Payment(s) of principal, interest and other amounts due
under this Note shall be made on the date due in lawful money of the United States of America at
2025 South Airport Boulevard, Chandler, AZ 85249, or to such other place of payment as the Holder
may designate in writing. All such payments shall be made without any deduction whatsoever,
including, without limitation, any deduction for set-off, recoupment, counterclaim, or taxes. Any
payments due hereunder which are due on a day which is not a business day shall be payable on the
immediately succeeding business day, together with all accrued and unpaid interest through the
actual date of payment. All payments made hereunder shall be applied first to the payment of the
interest then accrued and due on the unpaid principal balance of this Note and any other charges or
fees due under this Note or the Loan Agreement and the remainder shall be applied to the reduction
of the unpaid principal.



     8. Security. This Note is secured by a lien on, and security interest in, all
of Borrower’s right, title, and interest in and to the Funded ProLink Systems (as defined in the
Loan Agreement) and all proceeds and accounts arising therefrom, whether now owned or hereafter
acquired, granted pursuant to the Loan Agreement.



     9. Default. An “Event of Default” or a “Default” under this
Note shall exist (i) if the Borrower fails to make any payment of interest when due; (ii) if the
Borrower fails to repay any advance made by Lender, or the Loan Fee, with respect to a Funded
ProLink System within three (3) business days after receipt by Borrower of good, collected funds
for the System Advance Amount (as defined in the Loan Agreement) with respect to such Funded
ProLink System; (iii) upon the occurrence of an Event of Default or a Default under the Loan
Agreement; (iv) if the Borrower commences a voluntary case or other proceeding seeking liquidation,
reorganization or other relief with respect to itself or its debts under any bankruptcy, insolvency
or other similar law now or hereafter in effect or seeking the appointment of a trustee, receiver,
liquidator, custodian or other similar official of it or any substantial part of its property, or
consents to any such relief or to the appointment of or taking possession by any such official in
an involuntary case or other proceeding commenced against it, or makes a general assignment for the
benefit of creditors, or fails generally to pay its debts as they become due, or takes any limited
liability company action to authorize any of the foregoing; or (v) if an involuntary case or other
proceeding is commenced against the Borrower seeking liquidation, reorganization or other relief
with respect to it or its debts under any bankruptcy, insolvency or other similar law now or
hereafter in effect or seeking the appointment of a trustee, receiver, liquidator, custodian or
other similar official of it or any substantial part of its property, and such involuntary case or
other proceeding remains undismissed and unstayed for a period of sixty (60) days; or an order for
relief is entered against the Borrower under the federal bankruptcy laws as now or hereafter in
effect.



     10. Remedies Upon Event of Default: If an Event of Default shall have
occurred and be continuing, Holder may, by written notice to the Borrower, declare all outstanding
principal of, accrued and unpaid interest on, and all other amounts under this Note to be
immediately due and payable and upon such declaration, such amounts shall become immediately due
and payable and shall bear interest at the default interest rate of eighteen percent (18%) from the
due date



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until paid in full. If an Event of Default specified in clause (iv) or (v) of Section
9 occurs, all outstanding principal of, accrued and unpaid interest on, and all other
amounts under this Note shall become immediately due and payable without any declaration or other
act on the part of Holder. In addition to the acceleration provisions set forth above, Holder may
suspend or terminate its obligation to make further advances as provided in Section
2, and exercise all remedies provided at law or in equity or by statute. Each right,
power or remedy of the Holder hereof upon the occurrence of any Event of Default as provided for in
this Note or now or hereafter existing at law or in equity or by statute shall be cumulative and
concurrent and shall be in addition to every other right, power or remedy provided for in this Note
or now or hereafter existing at law or in equity or by statute, and the exercise or beginning of
the exercise by the Holder hereof of any one or more of such rights, powers or remedies shall not
preclude the simultaneous or later exercise by the Holder of any or all such other rights, powers
or remedies. Upon the occurrence of an Event of Default, the Borrower shall pay all costs and
expenses (including attorneys’ fees) that are incurred by the Holder in connection with the
preservation and enforcement of its rights under this Note.




     11. Waivers. Borrower hereby waives presentment for payment, demand, notice,
protest, notice of protest and notice of dishonor, and all other notices of any kind whatsoever to
which it may be entitled under applicable law or otherwise, except for notices to which Borrower is
expressly entitled under this Note.



     12.
Loss, Theft, Destruction, or Mutilation of this Note. Upon receipt of
evidence reasonable satisfactory to Borrower of the loss, theft, destruction or mutilation of this
Note, and, in the case any such loss, theft or destruction, upon receipt of an indemnity reasonably
satisfactory to Borrower, or, in the case of any such mutilation, upon surrender and cancellation
of such mutilated Note, Borrower shall issue and deliver within five (5) days a new Note, of like
tenor, in lieu of the lost, stolen, destroyed or mutilated Note.



     13. Costs of Collection. Borrower agrees to pay to the Holder all costs and
expenses, including the fees and expenses of all attorneys, accountants and other experts retained
by the Holder, which are expended or incurred by or on behalf of the Holder in connection with (a)
the collection and enforcement of this Note, whether or not any action, suit or other proceeding is
commenced; (b) any actions for declaratory relief in any way related to this Note or the
indebtedness evidenced hereby; (c) the protection or preservation of any rights or remedies of the
Holder under this Note; (d) any actions taken by the Holder in negotiating any amendment, waiver,
consent or release of or under this Note; (e) any actions taken in reviewing Borrower’s financial
affairs if any Default or Event of Default shall have occurred or the Holder shall have determined
in good faith that a Default or an Event of Default may likely occur; (f) any refinancing,
restructuring (whether in the nature of a “work out” or otherwise), bankruptcy or insolvency
proceeding involving Borrower; (g) any actions taken to verify, maintain, perfect and protect any
lien granted to the Holder to secure repayment of this Note; or (h) any effort by the Holder to
protect, assemble, complete, collect, sell, liquidate or otherwise dispose of the Property,
including in connection with any case under bankruptcy law. The Borrower hereby consents to the
taking of the foregoing actions by the Holder.



     14. Usury Savings Clause. Borrower agrees to pay an effective rate of
interest which is the rate provided for in this Note plus any additional rate of interest resulting
from any charges



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of interest or in the nature of interest paid or to be paid in connection with the advances
evidenced by this Note and the Loan Agreement, including, without limitation the Loan Fee.
Notwithstanding any provision herein or in any instrument now or hereafter securing this Note, the
total liability for payments of interest and in the nature of interest shall not exceed the limits
imposed by the usury laws of the State of Arizona. If Holder receives as interest an amount which
would exceed such limits, such amount which would be excessive interest shall be applied to the
reduction of the unpaid principal balance and not to the payment of interest, and if a surplus
remains after full payment of principal and lawful interest, the surplus shall be remitted to
Borrower by Holder, and Borrower hereby agrees to accept such remittance.




     15. Extension of Time. The Holder may, at its sole option, extend the time
for payment of this Note, postpone the enforcement hereof, or grant any other indulgence without
affecting or diminishing the Holder’s right to full recourse against Borrower hereunder, which
right is expressly reserved.



     16. Outstanding Principal Balance. Borrower hereby authorizes Lender to
endorse on Exhibit “A” attached hereto and incorporated herein by this reference,
appropriate notations evidencing the date and amount of each principal advance by Lender and
principal repayment by Borrower; provided, however, that failure of Lender to make
notation of any such advance or repayment shall not limit or otherwise affect Borrower’s
obligations under this Note and the recognition by Lender of payments by Borrower of principal and
interest under this Note.



     17. Governing Law. IN ALL RESPECTS, INCLUDING ALL MATTERS OF CONSTRUCTION,
VALIDITY AND PERFORMANCE, THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED AND ENFORCED IN ACCORDANCE
WITH, THE INTERNAL LAWS OF THE STATE OF ARIZONA APPLICABLE TO CONTRACTS MADE AND PERFORMED IN THAT
STATE (WITHOUT REGARD TO THE CHOICE OF LAW OR CONFLICTS OF LAW PROVISIONS THEREOF) AND ANY
APPLICABLE LAWS OF THE UNITED STATES OF AMERICA.



     18. Captions; Construction and Interpretation. The captions contained in this
Note are for convenience of reference only, do not constitute a part of this Note and are not to be
considered in construing or interpreting this Note. Neither Borrower nor Lender shall be deemed
the drafter of this Note for purposes of construing the provisions of this Note. All provisions of
this Note shall be construed in accordance with their fair meaning, and not strictly for or against
Borrower or Holder. Whenever used herein, the word “Borrower” shall be deemed to include its
respective successors and assigns.



     19. WAIVER OF JURY TRIAL. BORROWER AND HOLDER (BY ACCEPTANCE THEREOF) HEREBY
WAIVE THE RIGHT TO A TRIAL BY JURY IN ANY ACTION, SUIT OR OTHER PROCEEDING BROUGHT TO RESOLVE ANY
CLAIM, CONTROVERSY OR DISPUTE ARISING UNDER OR RELATING TO THIS NOTE, ANY OTHER LOAN DOCUMENT OR
THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY, REGARDLESS OF WHICH PARTY INITIATES SUCH ACTION,
SUIT OR OTHER PROCEEDING.



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     20. Amendment. This Note may not be amended, modified, or changed, nor shall
any waiver of any provision hereof be effective, except only by an instrument in writing and signed
by Borrower and Lender.



     21. Time. Time is of the essence of this Note.



     22. Successors and Assigns. This Note shall be binding upon the heirs,
legatees and personal representatives of Borrower and shall inure to the benefit of the successors,
assigns and participants of Lender.



     23. Notices. Any notice, demand, consent, approval, or other communication
required or desired to be given under this Note (“Notices”) shall be in writing and shall
be directed to the parties at the addresses set forth herein. All Notices provided for or
permitted by this Note shall be in writing and may be delivered by any one of the following
methods: (a) by personal delivery, (b) by United States Postal Service, certified mail, return
receipt requested (c) by prepaid deposit with an overnight express delivery service, or (d) by
facsimile transmission with a confirmed copy of successful transmission, together with a copy sent
by one of the other methods of notice authorized by this Section. All Notices shall be effective
upon receipt, which absent contrary proof, shall conclusively be presumed to occur not later than
one (1) business day after deposit with an overnight express delivery service, three (3) business
days following posting if transmitted by mail, or the date of transmission if sent by facsimile
transmission. Each party shall have the right to designate a different address by the giving of
notice in conformity with this Section. All notices shall be sent to:



	 	 	 	 	 
	 

	 	Holder:
	 	FOC Financial Limited Partnership
	 

	 	 	 	2025 South Airport Boulevard
	 

	 	 	 	Chandler, AZ 85249
	 

	 	 	 	Attn: Steven Fisher
	 

	 	 	 	Facsimile: 480.782.9152
	 
	 	 	 	 
	 

	 	Borrower:
	 	ProLink Solutions, LLC.
	 

	 	 	 	7970 South Kyrene Road
	 

	 	 	 	Tempe, AZ 85283
	 

	 	 	 	Attn: Lawrence Bain






     IN WITNESS WHEREOF, Borrower has caused this Note to be executed and delivered by its
authorized representatives as of the date first above written.



	 	 	 	 	 
	 	 	BORROWER:
	 
	 	 	 	 
	 	 	ProLink Solutions, llc, A Delaware

corporation
	 
	 	 	 	 
	 

	 	By:	 	 
	 

	 	 	 	 
	 

	 	Name:	 	 
	 

	 	 	 	 
	 

	 	Title:	 	 
	 

	 	 	 	 





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