Unassociated Document


    


     

    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 AN EFFECTIVE REGISTRATION
      STATEMENT AS TO THIS NOTE UNDER SAID ACT AND ANY APPLICABLE STATE SECURITIES
      LAWS OR AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO NEWMARKET TECHNOLOGY,
      INC. THAT SUCH REGISTRATION IS NOT REQUIRED.

     

    THIS
      NOTE IS REGISTERED WITH THE PARENT 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).

     

    SECURED
      REVOLVING NOTE

     

    FOR
      VALUE
      RECEIVED, each of NEWMARKET TECHOLOGY, INC., a Nevada corporation (the
“Parent”), and the other companies listed on Exhibit A 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 Three Million Dollars
      ($3,000,000), or, if different, the aggregate principal amount of all Loans
      (as
      defined in the Security Agreement referred to below), together with any accrued
      and unpaid interest hereon, on November 30, 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 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 Secured Revolving Note (this
“Note”):

     

    ARTICLE
      I

     

    CONTRACT
      RATE

     

    1.1  Contract
      Rate.  Subject to Sections 2.2 and 3.9, 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 percent
      (2%) (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%).  Interest shall be (i) calculated on the basis of a 360
      day year, and (ii) payable monthly, in arrears, commencing on December 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  Mandatory
      Prepayments.  Upon receipt by any Company of any principal payment
      made to such Company in respect of any Note Receivable, such Company shall
      immediately apply an amount equal to fifty percent (50%) of such payment to
      prepay the outstanding principal balance of the Notes, to be applied first
      against the last maturing installments of the outstanding principal amount
      of
      the Term Loan in the inverse order thereof (including any accrued and unpaid
      interest thereon) until the Term Loan is paid in full and then to the Revolving
      Loans (including any accrued and unpaid interest thereon); provided,
however, following the occurrence and during the continuance of an
      Event
      of Default, such prepayments shall be applied to the Obligations in such order
      as the Agent may elect in its sole discretion.  If more than one Note
      is outstanding, the proceeds payable under this Section 1.3 shall be applied
      to
      the Notes on a pro rata basis.

     

    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
      one percent (1%) 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
      fifteen percent (115%) 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.

     

    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.

     

    
      
         

      

      
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    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.  In case of 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 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, 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 FURTHERPROVIDED,
THAT, NOTHING IN THIS NOTE SHALL BE DEEMED OR OPERATE TO
      PRECLUDE THE
      HOLDER 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.  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 COMPANY 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 AT THE ADDRESS SET FORTH
      IN
      THE SECURITY AGREEMENT AND THAT SERVICE SO MADE SHALL BE DEEMED COMPLETED UPON
      THE PARENT’S ACTUAL RECEIPT THEREOF.

     

    
      
         

      

      
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    (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 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 COMPANY 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.

     

    [Balance
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    IN
      WITNESS WHEREOF, each Company has caused this Secured Revolving Note to
      be signed in its name effective as of this 30 day of November,
      2007.

    
      	
              WITNESS:

            	
              NEWMARKET
                TECHNOLOGY, INC.

            
	
               

              By:_____________________________

            	
              By:/s/
                Philip M. Verges

              
                

              

              Name:
                Philip M. Verges

              Title:
                CEO

            
	 	 
	
              WITNESS:

            	
              IP
                GLOBAL VOICE, INC.

            
	
               

              By:_____________________________

            	
              By:/s/
                Peter Geddis

              
                

              

              Name:
                Peter Geddis

              Title:
                President

            
	 	 
	
              WITNESS:

            	
              NEWMARKET
                CHINA, INC.

            
	
               

              By:_____________________________

            	
              By:/s/
                Philip J. Rauch 

              
                

              

              Name:
                Philip J. Rauch

              Title:
                President

            
	 	 
	
              WITNESS:

            	
              NEWMARKET
                INTELLECTUAL PROPERTY, INC.

            
	
               

              By:_____________________________

            	
              By:/s/
                Philip M. Verges

              
                

              

              Name:
                Philip M. Verges

              Title:
                President

            
	 	 
	
              WITNESS:

            	
              NETSCO,
                INC.

            
	
               

              By:_____________________________

            	
              By:/s/
                Philip M. Verges

              
                

              

              Name:
                Philip M. Verges

              Title:
                President

            
	 	 
	
              WITNESS:

            	
              NEWMARKET
                BROADBAND, INC.

            
	
               

              By:_____________________________

            	
              By:/s/
                Philip M. Verges

              
                

              

              Name:
                Philip M. Verges

              Title:
                President

            


    

     

    


    
      
         

      

      
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    EXHIBIT
      A

     

    OTHER
      COMPANIES

     

    IP
      Global
      Voice, Inc., a Delaware corporation

     

    NewMarket
      China, Inc., a Nevada corporation

     

    Netsco,
      Inc., a North Carolina corporation

     

    NewMarket
      Intellectual Property, Inc., a Nevada corporation

     

    NewMarket
      Broadband, Inc., a Nevada corporation