Exhibit 4.14


 


THE
SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED, OR APPLICABLE STATE SECURITIES LAWS.  THE SECURITIES MAY NOT BE OFFERED FOR
SALE, SOLD, TRANSFERRED OR ASSIGNED (I) IN THE ABSENCE OF (A) AN
EFFECTIVE REGISTRATION STATEMENT FOR THE SECURITIES UNDER THE SECURITIES ACT OF
1933, AS AMENDED, OR APPLICABLE STATE SECURITIES LAWS OR (B) AN OPINION OF
COUNSEL, IN A GENERALLY ACCEPTABLE FORM, THAT REGISTRATION IS NOT REQUIRED
UNDER SAID ACT OR APPLICABLE STATE SECURITIES LAWS OR (II) UNLESS SOLD
PURSUANT TO RULE 144 UNDER SAID ACT. 
NOTWITHSTANDING THE FOREGOING, THE SECURITIES MAY BE PLEDGED IN
CONNECTION WITH A BONA FIDE MARGIN ACCOUNT OR OTHER LOAN OR FINANCING
ARRANGEMENT SECURED BY THE SECURITIES. 
ANY TRANSFEREE OF THIS NOTE SHOULD CAREFULLY REVIEW THE TERMS OF THIS
NOTE, INCLUDING SECTION 3(d) HEREOF. 
THE PRINCIPAL AMOUNT REPRESENTED BY THIS NOTE MAY BE LESS THAN THE
AMOUNTS SET FORTH ON THE FACE HEREOF PURSUANT TO SECTION 3(d) HEREOF.


 


SENIOR SECURED NOTE


 


	
  [                    ],
  2008

  	
  $[                        ]

  



 


FOR VALUE
RECEIVED, AVERION INTERNATIONAL CORP., a Delaware
corporation (the “Company”),
hereby promises to pay to the order of
[                                            ]
or its permitted assigns (the “Holder”) the
principal amount of
[                        
($                      )]
when due, whether upon maturity, acceleration, redemption or otherwise, and to
pay interest (“Interest”) on the unpaid principal
balance hereof on each Interest Payment Date (as defined in Section 2) and
upon maturity, or earlier upon acceleration or prepayment pursuant to the terms
hereof, at the Applicable Interest Rate (as defined in Section 2).  Interest on this Note payable on each
Interest Payment Date and upon maturity, or earlier upon acceleration or
prepayment pursuant to the terms hereof, shall accrue from the Issuance Date
(as defined in Section 2) and shall be computed on the basis of a 365-day
year and actual days elapsed.  The
obligations under this Note shall be senior in right of payment to all other
indebtedness of the Company except that it shall be pari passu to the notes in
the aggregate original principal amount of $26 million issued by the Company
pursuant to the Securities Purchase Agreement, dated as of October 31,
2007, as amended (the “Prior Securities Purchase Agreement”).


 


(1)           Payments of
Principal and Interest.  All payments
under this Note shall be made in lawful money of the United States of America
by wire transfer of immediately available funds to such account as the Holder
may from time to time designate by written notice in accordance with the
provisions of this Note.  Interest on the
Principal shall be paid quarterly in arrears on each Interest Payment Date for
the Interest Amount that accrued in the calendar quarter immediately preceding
each such Interest Payment Date. 
Whenever any amount expressed to be due by the terms of this Note is due
on any day that is not a Business Day (as defined in Section 2), the same
shall instead be due on the next succeeding day that is a Business Day.  This Note 


 

















 


and all Other Notes (as defined
in Section 2) are issued by the Company pursuant to the Securities
Purchase Agreement (as defined in Section 2) on the Closing Date and all
notes issued in exchange or substitution therefor or replacement or addition
thereof are collectively referred to in this Note as the “Notes.”


 


(2)           Certain Defined
Terms.  Each capitalized term used in
this Note, and not otherwise defined, shall have the meaning ascribed thereto
in the Securities Purchase Agreement, dated as of June 27, 2008, pursuant
to which this Note was originally issued (as such agreement may be amended,
restated, supplemented or modified from time to time as provided therein, the “Securities Purchase Agreement”).  For purposes of this Note, the following
terms shall have the following meanings:


 


(a)           “Applicable Interest Rate” means the Interest Rate, or, for
so long as an Event of Default shall have occurred and be continuing, the Default
Rate.


 


(b)           “Backlog” means, as of any date, the aggregate amount of
anticipated net services Revenue that is reasonably expected to be earned by
the Company and its Subsidiaries after such date pursuant to projects not then
completed which have been authorized by clients pursuant to written agreements
and letters of intent that have been entered into in writing by the Company and
the Subsidiaries, on the one hand, and clients, on the other, thereof on or
prior to such date (which, for the avoidance of doubt, excludes any Revenue
actually earned and recognized under such agreements and letters of intent on
or prior to such date determined on a consistent basis); provided, however,
that such backlog of a Subsidiary that is not a wholly-owned Subsidiary shall
only be recognized on the percentage amount of the Company’s or its
wholly-owned Subsidiaries’ percentage ownership of the capital stock of such
Subsidiary.


 


(c)           “Business Day” means any day other than Saturday, Sunday or
other day on which commercial banks in the city of New York are authorized or
required by law to remain closed.


 


(d)           “Cash Default” means that, as of any date of determination,
the Cash and Cash Equivalents are less than the Required Cash Amount.


 


(e)           “Cash and Cash Equivalents” means the Company’s and the
Subsidiaries’ aggregate (I) cash, (II) certificates of deposit or
time deposits, having in each case a tenor of not more than six (6) months,
issued by any United States commercial bank and any non-United States
commercial bank, and (III) money market funds, provided that substantially
all of the assets of such funds consist of securities of the type described in
clauses (I) or (II) immediately above, all as determined in
accordance with GAAP applied on a consistent basis; provided, however, that
such cash and cash equivalents of a Subsidiary that is not a wholly-owned
Subsidiary shall only be recognized in the percentage amount of the Company’s
or its wholly-owned Subsidiaries’ percentage ownership of the capital stock of
such Subsidiary.


 


(f)            “Change of Control” 
means (i) the consolidation, merger or other business combination
of the Company with or into another Person (other than (A) a
consolidation, merger or other business combination in which holders of the
Company’s voting power immediately prior to the transaction continue after the
transaction to hold, directly or 


 


2

















 


indirectly, a
majority of the combined voting power of the surviving entity or entities
entitled to vote generally for the election of a majority of the members of the
board of directors (or their equivalent if other than a corporation) of such
entity or entities, or (B) pursuant to a migratory merger effected solely
for the purpose of changing the jurisdiction of incorporation of the Company); (ii) the
sale or transfer of all or substantially all of the Company’s assets
(including, for the avoidance of doubt, the sale of all or substantially all of
the assets of the Subsidiaries in the aggregate); (iii) the consummation
of a purchase, tender or exchange offer made to and accepted by the holders of
more than the 50% of the outstanding Common Stock; (iv) the adoption of a
plan relating to the Company’s liquidation or dissolution; (v) the first
day on which the majority of the members of the Board of Directors of the
Company are not Continuing Directors; or (vi) the date that any one Person
or group (as that term is interpreted under the rules and regulations
promulgated under Section 13(d) of the Exchange Act), other than
Excluded Person(s) (as defined below), beneficially owns (as defined in Rules 13d-3
and 13d-5 promulgated under the Exchange Act), directly or indirectly, stock of
the Company that, together with the stock then held by such Person or group,
constitutes more than forty percent (40%) of the outstanding voting stock of
the Company or other voting stock into which the Company’s voting stock is
reclassified, consolidated, exchanged or changed, measured by voting power
rather than number of shares.  The term “Excluded
Person(s)” means (A) any officer or director of the Company as of the date
hereof, (B) an underwriter temporarily holding securities pursuant to an
offering of such securities, (C) any Person or group that beneficially
owns in excess of forty percent (40%) of the outstanding voting stock of the
Company on the date hereof, or (D) a corporation owned, directly or
indirectly, by the stockholders of the Company in substantially the same
proportions as their ownership of stock in the Company.


 


(g)           “Collateral Agent” shall have the meaning ascribed to such
term in the Security Agreement.


 


(h)           “Common Stock” means (A) the Company’s common stock,
$0.001 par value per share, and (B) any capital stock resulting from a
reclassification of such common stock.


 


(i)            “Consolidated Net Income (or Deficit)” means, for any period,
the net income (or deficit) of the Company and the Subsidiaries on a
consolidated basis for such period, determined in accordance with GAAP,
consistently applied, after eliminating therefrom all extraordinary items of
income or loss.


 


(j)            “Continuing Directors” means, as of any date of
determination, any member of the Board of Directors of the Company who (1) was
a member of such Board of Directors on the Issue Date; or (2) was
nominated for election or elected to such Board of Directors with the approval
of a majority of the continuing directors who were members of such Board of
Directors at the time of such nomination or election.


 


(k)           “Default Rate” means the per annum interest rate equal to the
sum of (i) the Interest Rate plus (ii) two percent (2.0%) (i.e., 200
basis points).


 


(l)            “Dollars” or “$” means United States Dollars.


 


3

















 


(m)          “EBITDA” means, for any period, an amount equal to the sum of
(a) Consolidated Net Income (or Loss) for such period, plus (b) without
duplication and only to the extent deducted in computing Consolidated Net
Income (or Loss) for such period (and, for the avoidance of doubt, excluding
the percentage of any amount referred to below in this paragraph of any
non-wholly-owned Subsidiary that equals the percentage of the equity of such
Subsidiary that is not owned by the Company or its wholly-owned Subsidiaries), (i) interest
expense (including all interest imputed on Capital Lease Obligations of the
Company and the Subsidiaries in accordance with GAAP and capitalized interest),
deferred financing costs and commitment fees (but excluding closing costs) for
the Company and the Subsidiaries for such period, (ii) federal, state,
local and other income and franchise tax expense of the Company and the
Subsidiaries for such period, (iii) depreciation expense of the Company
and the Subsidiaries for such period, (iv) amortization expense of the
Company and the Subsidiaries for such period, (v) non-cash charges that
result from any write-downs of the Staffing Services Notes (as defined
hereinafter) (excluding non-cash charges in the ordinary course of business
that constitute an accrual of or reserve for cash charges in a future period)
of the Company and the Subsidiaries for such period (provided that any
cash payments in a future period in respect of such charges shall reduce EBITDA
in such period so long as such charges described in this clause (v) do not
result in a cash charge in a future period) all as determined on a consolidated
basis in accordance with GAAP consistently applied and disclosed in the Company’s
most recently filed Periodic Report and (vi) stock compensation expenses
recorded in accordance with SFAS No. 123R, and minus (c) without
duplication and only to the extent included in computing Consolidated Net
Income (or Loss) for such period, any non-cash gains of the Company and the
Subsidiaries for such period resulting from any write-ups of the Staffing
Service Notes.


 


(n)           “EBITDA Ratio” means, as of any date, the quotient of (i) the
annualized EBITDA of the Company and the Subsidiaries for the six-month period
ending on such date, divided by (ii) the Total Outstanding Debt as of such
date.


 


(o)           “Excluded Taxes” means, with respect to the Holder, or any
other recipient of payment to be made by or on account of any obligations of
the Company or any of the Subsidiaries under the Notes, the Securities Purchase
Agreement or any other Transaction Document, income or franchise taxes imposed
on (or measured by) such recipient’s net income by the United States of America
or such other jurisdiction under the laws of which such recipient is organized
or its principal offices are located.


 


(p)           “Financial Covenant Test Failure” means that, as of any date
of determination, (A) the Revenue Ratio is less than the Required Revenue
Ratio, (B) the Net Book-to-Bill Ratio is less than the Required Net
Book-to-Bill Ratio, (C) the EBITDA Ratio is less than the Required EBITDA
Ratio, or (D) the Cash and Cash Equivalents are less than the Required
Cash Amount.


 


(q)           “Financial Covenant Test Failure Amount” means that, in the
event that there is a Financial Covenant Test Failure, as of the date of any
determination, an amount equal to the greatest of:


 


(i)            the product of (A) the
result of (I) one (1) minus (II) the quotient of the
Revenue Ratio as of such date, divided by the Required Revenue Ratio as of such



 


4

















 


date, multiplied by (B) the aggregate outstanding principal amount
of all Notes then outstanding;


 


(ii)           the product of (A) the
result of (I) one (1) minus (II) the quotient of the Net
Book-to-Bill Ratio as of such date, divided by the Required Net Book-to-Bill
Ratio as of such date, multiplied by (B) the aggregate outstanding
principal amount of all Notes then outstanding; and


 


(iii)          the product of (A) the
result of (I) one (1) minus (II) the quotient of the
EBITDA Ratio as of such date, divided by the Required EBITDA Ratio as of such
date, multiplied by (B) the aggregate outstanding principal amount of all
Notes then outstanding.


 


(r)            “Governmental Authority” means the government of the United
States of America or any other nation, or any political subdivision thereof,
whether state, provincial or local, or any agency, authority, instrumentality,
regulatory body, court, central bank or other entity exercising executive,
legislative, judicial, taxing, regulatory or administration powers or functions
of or pertaining to government over the Company or any of the Subsidiaries, or
any of their respective properties, assets or undertakings.


 


(s)           “Indemnified Taxes” means Taxes other than Excluded Taxes.


 


(t)            “Interest Amount” means as of any date, with respect to any
Principal, all accrued and unpaid Interest (including any Interest at the
Default Rate) on such Principal through and including such date.


 


(u)           “Interest Payment Date” means the last Business Day of each
calendar quarter, beginning with the calendar quarter that commenced on April 1,
2008, through and including the last calendar quarter that commences prior to
the Maturity Date.


 


(v)           “Interest Rate” shall mean (i) for the period commencing
on the Closing Date and ending on October 31, 2008, three percent (3%) per
annum during such period; (ii) for the period commencing on November 1,
2008 and ending on October 31, 2009, ten percent (10%) per annum during
such period; and (iii) for the period commencing on November 1, 2009
and ending on October 31, 2010, fifteen percent (15%) per annum during
such period.


 


(w)          “Issuance Date” means the original date of issuance of this
Note pursuant to the Securities Purchase Agreement, regardless of any exchange
or replacement hereof.


 


(x)            “Maturity Date” means October 31, 2010, unless such date
is not a Business Day, in which case “Maturity Date” shall mean the first
Business Day following October 31, 2010.


 


(y)           “Net Authorizations” means, for any period, the result of (I) the
Backlog as of the last day of such period, minus (II) the Backlog
as of the day immediately preceding the beginning of such period, plus Revenue
for such period; provided that, if such result is less than zero (0), “Net
Authorization” shall mean zero (0).


 


5

















 


(z)            “Net Book-to-Bill Ratio” means, as of any date, the quotient of
(i) the Net Authorizations for the 12-month period ending on such date,
divided by (ii) the Revenue for such period.


 


(aa)         “Notes” means this Note and the Other Notes.


 


(bb)         “Other Notes” means all of the senior secured
notes, other than this Note, that have been issued by the Company pursuant to
the Securities Purchase Agreement and the Prior Securities Purchase Agreement,
and all notes issued in exchange or substitution therefor, addition thereto or
replacement thereof.


 


(cc)         “Person” means an individual, a limited liability company, a
partnership, a joint venture, a corporation, a trust, an unincorporated
organization or a government or any department or agency thereof or any other
legal entity.


 


(dd)         “Prepayment Notice” means a written notice from the Company
to the Holder indicating the Company’s election to prepay a specified amount of
Principal, together with the applicable Interest Amount and Prepayment Premium
with respect thereto on the applicable Prepayment Date.


 


(ee)         “Principal” means the outstanding principal amount of this
Note as of any date.


 


(ff)           “Pro Rata Financial Covenant Test Failure Amount” means, as
of the date of any determination, an amount equal to the product of (A) a
fraction, of which the numerator is the outstanding Principal as of such date,
and of which the denominator is the aggregate outstanding principal amount of
all Notes as of such date, multiplied by (B) the Financial Covenant Test
Failure Amount.


 


(gg)         “Required EBITDA Ratio” means, with respect to any date set
forth below, the EBITDA Ratio set forth below opposite such date:


 


	
  Date

  	
   

  	
  Ratio

  	
   

  
	
  June 30, 2008

  	
   

  	
  0.05

  	
   

  
	
  September 30, 2008

  	
   

  	
  0.05

  	
   

  
	
  December 31, 2008

  	
   

  	
  0.15

  	
   

  
	
  March 31, 2009

  	
   

  	
  0.25

  	
   

  
	
  June 30, 2009

  	
   

  	
  0.25

  	
   

  
	
  September 30, 2009

  	
   

  	
  0.30

  	
   

  
	
  December 31, 2009

  	
   

  	
  0.30

  	
   

  
	
  March 31, 2010, and the last day of
  each calendar quarter thereafter until Maturity

  	
   

  	
  0.35

  	
   

  



 


(hh)         “Required Cash Amount” means (i) $10 million in Cash and
Cash Equivalents on March 31, 2009 and on the last day of each calendar
quarter thereafter through 


 


6

















 


(and
including) March 31, 2010; and (ii) $13 million in Cash and Cash
Equivalents on June 30, 2010 and on the last day of each calendar quarter
thereafter until Maturity.


 


(ii)           “Required Net Book-to-Bill Ratio” means, with respect to any
date set forth below, the Net Book-to-Bill Ratio set forth below opposite such
date:


 


	
  Date

  	
   

  	
  Ratio

  	
   

  
	
  June 30, 2008

  	
   

  	
  1.05

  	
   

  
	
  September 30, 2008

  	
   

  	
  1.10

  	
   

  
	
  December 31, 2008

  	
   

  	
  1.10

  	
   

  
	
  March 31, 2009

  	
   

  	
  1.15

  	
   

  
	
  June 30, 2009

  	
   

  	
  1.15

  	
   

  
	
  September 30, 2009

  	
   

  	
  1.20

  	
   

  
	
  December 31, 2009, and the last day of
  each calendar quarter thereafter until Maturity

  	
   

  	
  1.20

  	
   

  



 


(jj)           “Required Revenue Ratio” means, with respect to any date set
forth below, the Revenue Ratio set forth below opposite such date.


 


	
  Date

  	
   

  	
  Ratio

  	
   

  
	
  June 30, 2008

  	
   

  	
  2.00

  	
   

  
	
  September 30, 2008

  	
   

  	
  2.00

  	
   

  
	
  December 31, 2008

  	
   

  	
  2.25

  	
   

  
	
  March 31, 209

  	
   

  	
  2.75

  	
   

  
	
  June 30, 2009

  	
   

  	
  2.75

  	
   

  
	
  September 30, 2009, and the last day
  of each calendar quarter thereafter until Maturity

  	
   

  	
  3.25

  	
   

  



 


(kk)         “Revenue” means, for any period, the consolidated net
services revenue of the Company and the Subsidiaries on a consolidated basis
for such period, determined in accordance with GAAP, consistently applied; provided,
however, that the net services revenues of a Subsidiary that is not a
wholly-owned Subsidiary shall only be recognized in the percentage amount of
the Company or its wholly-owned Subsidiaries’ percentage ownership of the
capital stock of such Subsidiary.


 


(ll)           “Revenue Ratio” means, as of any date, the quotient of
(i) the annualized Revenue for the six-month period ending on such date,
divided by (ii) the Total Outstanding Debt as of such date.


 


(mm)       “SEC” means the U.S. Securities and Exchange Commission, or
any successor thereto.


 


7

















 


(nn)         “Staffing Services Notes”  means (i) those
certain promissory notes, dated October 3, 2007, in the aggregate original
principal amount of $1,570,000, issued to the Company by IT&E, Inc. as
partial consideration for the Company’s sale of the assets of its staffing
services business segment thereto; and (ii) the deferred payment of Two
Hundred Fifty Thousand Dollars ($250,000) payable over time to the Company in
connection with the Company’s sale of the assets of its staffing services
business segment.


 


(oo)         “Subsidiary” means, as to any Person, any other Person of
which fifty percent (50%) or more of the outstanding voting securities or other
equity interests are owned, directly or indirectly, by such Person.


 


(pp)         “Total Outstanding Debt” means, as of any date, the total
outstanding Indebtedness for borrowed money (including Capital Lease
Obligations and letters of credit outstanding) of the Company and the
Subsidiaries as of such date; provided, however, that there shall
be excluded from such amount those portions of the principal amounts of the
Millennix Note, the Hesperion Notes and the Lavin Notes that are due and
payable after the Maturity Date.


 


(qq)         “U.S.” means the United States of America.


 


(3)           Principal
Payments.


 


(a)           Optional
Early Principal Prepayments.


 


(i)          General.  The Company shall have the right at any time
not less than five (5) Business Days following the receipt by Holder of a
Prepayment Notice from the Company, to voluntarily prepay this Note (an “Optional Prepayment”), in whole or in part, for an amount in
cash equal to the sum of (A) the Principal then being prepaid pursuant to
this Section 3(a), (B) the Interest Amount with respect to such
Principal as of the applicable prepayment date (the “Optional
Prepayment Date”), and (C) all other accrued and unpaid
Interest as of the Optional Prepayment Date (together, the “Prepayment Amount”); provided, however, that
the Company may not take such action unless it simultaneously takes the same action
with respect to the same percentage of the outstanding principal amount of each
outstanding Other Note.


 


(ii)         Mechanics of Optional
Prepayments.  If the Company has
delivered a Prepayment Notice in accordance with Section 3(a)(i), then the
Company shall pay to the Holder the Prepayment Amount in cash by wire transfer
of immediately available funds to an account designated by the Holder.


 


(b)           Mandatory
Prepayment Upon Financial Covenant Test Failure.


 


(i)          On the twentieth (20th) day following each calendar
quarter, the Company shall deliver to the Holder, by facsimile, electronic
mail, PDF or overnight courier, a certificate executed by its principal
financial officer (an “Officer’s Certificate”)
(1) setting forth the Revenue Ratio, the Net Book-to-Bill Ratio, the
EBITDA Ratio, and the Cash and Cash Equivalents and any Financial Covenant Test
Failure Amount or Cash Default as of the last day of the immediately preceding
calendar quarter, (2) if there is no Financial Covenant Test Failure or
Cash Default disclosed 


 


8

















 


therein, certifying that there was no
Financial Covenant Test Failure or Cash Default as of the last day of the
immediately preceding calendar quarter, and (3) if there was a Financial
Covenant Test Failure as of the last day of the immediately preceding calendar
quarter, certifying as to the Holder’s Pro Rata Financial Covenant Test Failure
Amount as of the last day of the immediately preceding calendar quarter.  Upon the occurrence of any Financial Covenant
Test Failure, the Company shall immediately prepay, without demand or notice by
the Holder, by wire transfer of immediately available funds to such account as
the Holder may from time to time designate, an amount equal to the Holder’s Pro
Rata Financial Covenant Test Failure Amount.


 


(ii)   In the case of a bona fide
dispute as to the determination of the Revenue Ratio, the Net Book-to-Bill
Ratio, the EBITDA Ratio, or the amount of the Cash and Cash Equivalents or the
arithmetic calculation of any Financial Covenant Test Failure Amount, the
Company shall pay any amount that is not disputed and shall transmit an
explanation of the disputed determinations or arithmetic calculations to the
Holder via facsimile within two (2) Business Days of the occurrence of the
dispute, with a copy to the holders of all Other Notes.  If the Holder and the Company are unable to
agree upon the determination of the Revenue Ratio, the Net Book-to-Bill Ratio,
the EBITDA Ratio, or the amount of the Cash and Cash Equivalents or the
arithmetic calculation of any Financial Covenant Test Failure Amount within two
(2) Business Days of such disputed determination or arithmetic calculation
being transmitted to the Holder, then the Company shall promptly (and in any
event within five (5) Business Days) submit, via facsimile or electronic
mail, the disputed determination of the Revenue Ratio, the Net Book-to-Bill
Ratio, the EBITDA Ratio, or the amount of the Cash and Cash Equivalents or the
arithmetic calculation of the Financial Covenant Test Failure Amount to an
independent, registered certified public accounting firm, agreed to by the
Company and the holders of the Notes representing at least two-thirds (2/3) of
the aggregate principal amounts of the Notes then outstanding as to which such
determination is being made.  The Company
shall direct such accounting firm to perform the determinations or
calculations, as the case may be, and notify the Company and the Holder of the
results no later than two (2) Business Days from the time such accounting
firm receives the disputed determinations or calculations.  Such accounting firm’s determination or
calculation, as the case may be, shall be binding upon all parties absent
manifest error.  The fees and expenses
incurred in connection with any accounting firm’s services in connection with
this Section shall be borne by (i) if there is no discrepancy between
the determinations of the Revenue Ratio, the Net Book-to-Bill Ratio, the EBITDA
Ratio, or the amount of the Cash and Cash Equivalents or the arithmetic
calculation of any Financial Covenant Test Failure Amount initially provided by
the Company and those provided by the accounting firm, then the Holders shall
ratably be responsible for all such costs and expenses; (ii) if the amount
of any discrepancy between the determinations of the Revenue Ratio, the Net
Book-to-Bill Ratio, the EBITDA Ratio, or the amount of the Cash and Cash Equivalents
or the arithmetic calculation of any Financial Covenant Test Failure Amount
initially provided by the Company and those provided by the accounting firm are
less than five percent (5%) in the aggregate, then the Company, on the one
hand, and the Holders, on the other hand, shall share equally in all such costs
and expenses; and (iii) if the amount of any discrepancy between the
determinations of the Revenue Ratio, the Net Book-to-Bill Ratio, the EBITDA
Ratio, or the amount of the Cash and Cash 


 


9














 


Equivalents or the arithmetic
calculation of any Financial Covenant Test Failure Amount initially provided by
the Company and those provided by the accounting firm are more than five
percent (5%), then the Company shall be responsible for all such costs and
expenses.


 


(c)           Mandatory
Payment by the Company on Maturity Date. 
If any Principal remains outstanding on the Maturity Date, then the
Holder shall surrender this Note, duly endorsed for cancellation to the
Company, and such Principal shall be redeemed by the Company as of the Maturity
Date by payment on the Maturity Date to the Holder, by wire transfer of
immediately available funds, of an amount equal to the sum of 100% of such
Principal and the accrued and unpaid Interest Amount with respect to such Principal
as of the Maturity Date.


 


(d)           Surrender
of Note.  Notwithstanding anything to
the contrary set forth in this Note, upon any prepayment of this Note in
accordance with its terms, the Holder shall not be required to physically
surrender this Note to the Company unless all of the Principal is being repaid
and the related Interest Amount and all other obligations payable under this
Note (including any applicable Prepayment Premium) have been paid in full.  The Holder and the Company shall maintain
records showing the Principal repaid and the date(s) of such repayments or
shall use such other method, reasonably satisfactory to the Holder and the
Company, so as not to require physical surrender of this Note upon each such
repayment.  The Holder and any assignee,
by acceptance of this Note, acknowledge and agree that, by reason of the
provisions of this paragraph, following partial repayment of any portion of
this Note, the Principal of this Note may be less than the principal amount
stated on the face hereof.


 


(4)                                  Interest
Payment.  Interest shall be payable
in cash on each Interest Payment Date, to the record holder of this Note on
such Interest Payment Date.


 


(5)                                  Defaults
and Remedies.


 


(a)           Events
of Default.  An “Event of
Default” shall mean any of:  (i) default
in payment of any Principal amount due under this Note when and as due or
default in payment of any Interest Amount due under this Note when and as due,
and in the case of Interest, such default continues for a period of at least
ten (10) days; (ii) failure by the Company for ten (10) Business
Days to comply with any other provision of this Note in all material respects; (iii) the
Company or any of the Subsidiaries pursuant to or within the meaning of any
Bankruptcy Law (as defined below): (A) commences a voluntary case or
applies for a receiving order; (B) consents to the entry of an order for
relief against it in an involuntary case or consents to any involuntary
application for a receiving order; (C) consents to the appointment of a
Custodian of it or any of the Subsidiaries for all or substantially all of its
property; (D) makes a general assignment for the benefit of its creditors;
or (E) admits in writing that it is generally unable to pay its debts as
the same become due; (iv) an involuntary case or other proceeding is
commenced directly against the Company or any of the Subsidiaries seeking
liquidation, reorganization or other relief with respect to it or its
Indebtedness under any Bankruptcy 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 Bankruptcy Law proceeding remains undismissed and unstayed for a
period of forty-five (45) days, or an order of relief is entered against the
Company as debtor under the Bankruptcy Laws as are now 


 


10

















 


or hereafter in effect; (v) the Company or any of the Subsidiaries
breaches any covenant or other term or condition of any Transaction Document,
except, in the case of a breach of a covenant or other term that is curable,
only if such breach continues for a period of at least ten (10) Business
Days after written notice to the Company thereof; (vi) one or more
judgments, non-interlocutory orders or decrees shall be entered by a U.S. state
or federal or a foreign court or administrative agency of competent
jurisdiction against the Company or any of the Subsidiaries involving, in the
aggregate, a liability (to the extent not covered by independent third-party
insurance) as to any single or related series of transactions, incidents or
conditions, of $250,000  or more, and
the same shall remain unsatisfied, unvacated, unbonded or unstayed pending
appeal for a period of forty-five (45) days after the entry thereof; (vii) any
Lien created by any of the Security Documents shall at any time fail to
constitute a valid and perfected first priority Lien on all of the Collateral
purported to be secured thereby and the same is not cured within ten (10) Business
Days of any such failure; (viii) there shall occur a Change of Control or (ix) there
occurs with respect to any issue or issues of Indebtedness of the Company or
any Subsidiary having an outstanding amount of $250,000 or more in the
aggregate, whether such Indebtedness exists on the Issue Date or shall
thereafter be created, an event of default that permits the holder thereof to
declare such Indebtedness to be due and payable prior to its stated maturity.  The term “Bankruptcy
Law” means Title 11, U.S. Code, or any similar U.S. federal or state
law or law of any applicable foreign government or political subdivision
thereof for the relief of debtors.  The
term “Custodian” means any receiver, trustee,
assignee, liquidator or similar official under any Bankruptcy Law.  Within five (5) Business Days after the
occurrence of any Event of Default or of any event that upon notice or the
passage of time would become an Event of Default, the Company shall deliver
written notice thereof to the Holder.


 


(b)           Remedies.  If an Event of Default occurs and is
continuing, the Holder may declare all or any portion of this Note, including
any or all amounts due hereunder, to be due and payable immediately, except
that in the case of an Event of Default arising from events described in
clauses (iii) and (iv) of Section 5(a) above, all amounts
due hereunder shall immediately become due and payable without further action
or notice.  In addition to any remedy the
Holder may have under this Note, the Security Documents and the other
Transaction Documents, such unpaid amounts shall bear interest at the Default
Rate.  Nothing in this Section 5
shall limit any other rights the Holder may have under this Note, the Security
Documents or the other Transaction Documents.


 


(6)                                  Vote
to Change the Terms of the Notes. 
The written consent of the Company and the holders of Notes representing
at least two thirds (2/3) of the aggregate principal amount of the Notes then
outstanding shall be required in order to affect any amendment, waiver or other
modification of this Note.  Any
amendments hereto or waiver or modifications of the provisions hereof shall
bind and benefit Holder and its respective permitted successors and assigns;
provided, that, no such amendment, waiver or modification shall, without the
consent of the holders of all of the Notes affected thereby, change the
Maturity of any Note or reduce the principal amount thereof or the rate of
interest thereon; modify any provisions of this Section 6; adversely
affect the ranking, or with respect to collateral, the priority or security, of
any Note; adversely affect the right of repayment of any Note, at the option of
the holder or otherwise; or impair the right to institute suit for the
enforcement of any Note.


 


11

















 


(7)                                  Lost
or Stolen Notes.  Upon receipt by the
Company of evidence reasonably satisfactory to the Company of the loss, theft,
destruction or mutilation of this Note, and, in the case of loss, theft or
destruction, of an indemnification undertaking by the Holder to the Company in
customary form and reasonably satisfactory to the Company and, in the case of
mutilation, upon surrender and cancellation of this Note, the Company shall
execute and deliver a new Note of like tenor and date.


 


(8)                                  Remedies,
Characterizations, Other Obligations, Breaches and Injunctive Relief.  The remedies provided in this Note shall be
cumulative and in addition to all other remedies available under the Securities
Purchase Agreement, the Security Documents and the other Transaction Documents,
at law or in equity (including a decree of specific performance and/or other
injunctive relief), and no remedy contained herein shall be deemed a waiver of
compliance with the provisions giving rise to such remedy, and nothing herein
shall limit the Holder’s right to pursue actual damages for any failure by the
Company to comply with the terms of this Note. 
The Company covenants to the Holder that there shall be no
characterization concerning this instrument other than as expressly provided
herein.  Amounts set forth or provided
for herein with respect to payments and the like (and the computation thereof)
shall be the amounts to be received by the Holder and shall not, except as expressly
provided herein, be subject to any other obligation of the Company (or the
performance thereof).  The Company
acknowledges that a breach by it of its obligations hereunder will cause
irreparable harm to the Holder and that the remedy at law for any such breach
may be inadequate.  The Company therefore
agrees that, in the event of any such breach or threatened breach, the Holder
shall be entitled, in addition to all other available remedies, to an
injunction restraining any breach, without the necessity of showing economic
loss and without any bond or other security being required.


 


(9)                                  Specific
Shall Not Limit General; Construction. 
No specific provision contained in this Note shall limit or modify any
more general provision contained herein. 
This Note shall be deemed to be jointly drafted by the Company and the
Buyers pursuant to the Securities Purchase Agreement and shall not be construed
against any person as the drafter hereof.


 


(10)                            Failure
or Indulgence Not Waiver.  No failure
or delay on the part of the Holder 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.


 


(11)                            Notice.  Whenever notice is required to be given under
this Note, unless otherwise provided herein, such notice shall be given in
accordance with Section 9(f) of the Securities Purchase Agreement.


 


(12)                            Transfer
of this Note.  The Holder may assign
or transfer some or all of its rights hereunder, subject to compliance with
applicable Securities Laws (if applicable) and the provisions of Section 2(f) of
the Securities Purchase Agreement upon prior written notice to the
Company.  Notwithstanding anything to the
contrary contained in this Section 12, each such assignee or transferee,
upon becoming a Holder hereunder, acknowledges that it is bound by the terms
and conditions of Section 5.12 of the Security Agreement and agrees to,
promptly upon the request of the Collateral Agent, deliver to Collateral Agent
a written Joinder to the Security Agreement and other Security Documents.


 


12

















 


(13)                            Payment
of Collection, Enforcement and Other Costs. 
Without limiting the provisions of the Securities Purchase Agreement,
the Security Documents and the other Transaction Documents, if (a) this
Note is placed in the hands of an attorney for collection or enforcement or is
collected or enforced through any legal proceeding; or (b) an attorney is
retained to represent the Holder in any bankruptcy, reorganization,
receivership of the Company or other proceedings affecting Company creditors’
rights and involving a claim under this Note, then the Company shall pay the
costs incurred by the Holder for such collection, enforcement or action,
including reasonable attorneys’ fees and disbursements.


 


(14)                            Cancellation.  After all principal and other amounts at any
time owed under this Note have been paid in full in accordance with the terms
hereof, this Note shall automatically be deemed canceled, shall be surrendered
to the Company for cancellation and shall not be reissued.


 


(15)                            Note
Exchangeable for Different Denominations. 
Subject to Section 3(e), in the event of an optional,
mandatory or scheduled payment of less than all of the Principal pursuant to
the terms hereof, the Company shall, upon the request of Holder and tender of
this Note promptly cause to be issued and delivered to the Holder, a new Note
of like tenor representing the remaining Principal that has not been so
repaid.  This Note is exchangeable, upon
the surrender hereof by the Holder at the principal office of the Company, for
a new Note or Notes containing the same terms and conditions and representing
in the aggregate the Principal, and each such new Note will represent such
portion of such Principal as is designated by the Holder at the time of such
surrender.  The date the Company
initially issued this Note shall be the “Issuance Date” hereof regardless of
the number of times a new Note shall be issued.


 


(16)                            Taxes.


 


(a)           Payments
Free of Taxes.  Any and all payments
by or on account of any obligation of the Company or any of the Subsidiaries
under this Note, the Securities Purchase Agreement, the Security Documents or
any other Transaction Document shall be made without any set-off, counterclaim
or deduction and free and clear of and without deduction for any Indemnified
Taxes; provided that if the Company or any of the Subsidiaries shall be required
to deduct any Indemnified Taxes from such payments, then (i) the sum
payable shall be increased as necessary so that after making all required
deductions (including deductions applicable to additional sums payable under
this Section 16(a)), the Holder receives an amount equal to the sum it
would have received had no such deductions been made, (ii) the Company or
the applicable Subsidiary shall make such deductions and (iii) the Company
or the applicable Subsidiary as applicable shall pay the full amount deducted
to the relevant Governmental Authority in accordance with applicable law.


 


(b)           Indemnification
by the Company.  The Company shall
indemnify the Holder, within ten (10) days after written demand therefor,
for the full amount of any Indemnified Taxes paid by the Holder, on or with
respect to any payment by or on account of any obligation of the Company or any
of the Subsidiaries under the Notes, the Securities Purchase Agreement, the
Security Documents or any of the other Transaction Documents (including
Indemnified Taxes imposed or asserted on or attributable to amounts payable
under this Section 16) and any penalties, interest and reasonable expenses
arising therefrom or with respect thereto, whether or not such Indemnified
Taxes were correctly or legally imposed or 


 


13

















 


asserted by the relevant Governmental Authority.  A certificate of the Holder as to the amount
of such payment or liability under this Section 16 shall be delivered to
the Company and shall be conclusive absent manifest error.


 


(17)                            Waiver
of Notice.  To the extent permitted
by law, the Company hereby waives demand, notice, protest and all other demands
and notices in connection with the delivery, acceptance, performance, default
or enforcement of this Note, the Security Documents, the Securities Purchase
Agreement and the other Transaction Documents.


 


(18)                            Governing
Law.  This Note shall be construed
and enforced in accordance with, and all questions concerning the construction,
validity, interpretation and performance of this Note shall be governed by, the
internal laws of the State of New York, without giving effect to any choice of
law or conflict of law provision or rule (whether of the State of New York
or any other country or jurisdiction) that would cause the application of the
laws of any jurisdiction or country other than the State of New York.  Each party hereby irrevocably submits to the
non-exclusive jurisdiction of the state and federal courts sitting in the City
of New York, borough of Manhattan, for the adjudication of any dispute
hereunder or in connection herewith or with any transaction contemplated hereby
or discussed herein, and hereby irrevocably waives, and agrees not to assert in
any suit, action or proceeding, any claim that it is not personally subject to
the jurisdiction of any such court, that such suit, action or proceeding is
brought in an inconvenient forum or that the venue of such suit, action or
proceeding is improper.  Each party
hereby irrevocably waives personal service of process and consents to process
being served in any such suit, action or proceeding by mailing a copy thereof
by registered or certified U.S. mail, return receipt requested, or by a
nationally recognized overnight delivery service, to such party at the address
for such notices to it under this Note and agrees that such service shall
constitute good and sufficient service of process and notice thereof.  Nothing contained herein shall be deemed to limit
in any way any right to serve process in any manner permitted by law.  Notwithstanding the foregoing, the Holder may
enforce its rights or remedies in any other jurisdiction.  EACH PARTY HEREBY IRREVOCABLY WAIVES ANY
RIGHT IT MAY HAVE, AND AGREES NOT TO REQUEST, A JURY TRIAL FOR THE ADJUDICATION
OF ANY DISPUTE HEREUNDER OR IN CONNECTION HEREWITH OR ARISING OUT OF THIS NOTE
OR ANY TRANSACTION CONTEMPLATED HEREBY.


 


(19)                            Further
Assurances.  The Company shall do and
perform, or cause to be done and performed, all such further acts and things, and
shall execute and deliver all such other agreements, certificates, instruments
and documents, as the Holder may reasonably request in order to carry out the
intent and accomplish the purposes of this Note and the consummation of the
transactions contemplated hereby.


 


(20)                            Payment
Set Aside.  To the extent that the
Company makes a payment or payments to the Holder hereunder or the Holder
enforces or exercises its rights hereunder, and such payment or payments or the
proceeds of such enforcement or exercise or any part thereof are subsequently
invalidated, declared to be fraudulent or preferential, set aside, recovered
from, disgorged by or are required to be refunded, repaid or otherwise restored
to the Company, by a trustee, receiver or any other person under any law
(including any Bankruptcy Law, U.S. state or federal law, the laws of any
foreign government or any political subdivision thereof, common law or
equitable cause of action), then to the extent of any such restoration the
obligation or part 


 


14

















 


thereof
originally intended to be satisfied shall be revived and continued in full
force and effect as if such payment had not been made or such enforcement or
setoff had not occurred.


 


(21)                            Interpretative
Matters.  Unless the context
otherwise requires, (a) all references to Sections, Schedules or Exhibits
are to Sections, Schedules or Exhibits contained in or attached to this Note, (b) words
in the singular or plural include the singular and plural and pronouns stated
in either the masculine, the feminine or neuter gender shall include the
masculine, feminine and neuter and (c) the use of the word “including” in
this Note shall be by way of example rather than limitation.


 


(22)                            Signatures.  In the event that any signature to this Note
or any amendment hereto is delivered by facsimile transmission or by e-mail
delivery of a “.pdf” format data file, such signature shall create a valid and
binding obligation of the party executing (or on whose behalf such signature is
executed) with the same force and effect as if such facsimile or “.pdf”
signature page were an original thereof. 
Notwithstanding the foregoing, the Company shall be required to deliver
an originally executed Note to the Holder. 
At the request of any party each other party shall promptly re-execute
an original form of this Note or any amendment hereto and deliver the same to
the other party.  No party hereto shall
raise the use of a facsimile machine or e-mail delivery of a “.pdf” format data
file to deliver a signature to this Note or any amendment hereto or the fact
that such signature was transmitted or communicated through the use of a
facsimile machine or e-mail delivery of a “.pdf” format data file as a defense
to the formation or enforceability of a contract and each party hereto forever
waives any such defense.


 


[ Remainder of Page Intentionally
Left Blank; Signature Page Follows ]


 


15

















 


IN WITNESS
WHEREOF, the Company has caused this Note to be executed
on its behalf by the undersigned as of the year and date first above written.


 


	
   

  	
  AVERION INTERNATIONAL CORP.,

  
	
   

  	
  a Delaware corporation

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  



 


[Signature page to Senior Secured Note]