Exhibit
4.15


 


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


 


	
  [                      
      ], 2009

  	
   

  	
  $[                          ]

  



 


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
[                                  
Dollars ($                        )]
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 Senior Secured Note (the “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.


 


This
Note is being issued as part of a series of notes (collectively, the “New Notes”) issued pursuant to that certain Omnibus
Amendment dated as of
                        
    , 2009 (the “Omnibus Amendment Effective
Date”) between the Company and the investors that are signatories
thereto (the “Omnibus Amendment”), which Omnibus
Amendment amends the Prior Securities Purchase Agreements and Prior Notes (each
as defined below).  The terms of this
Note and each of the New Notes shall be subject to the terms and conditions of
the Omnibus Amendment, which Omnibus Amendment expressly amends certain terms
of this Note.


 


The
obligations under the New Notes shall be senior in right of payment to all
other indebtedness of the Company, except that they shall be pari passu to: (i) 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; and (ii) the notes in the aggregate original principal
amount of $2 million issued by the Company pursuant to the Securities Purchase
Agreement, dated as of June 27, 2008 (as such agreements may be amended,
restated, supplemented or modified from time to time as provided therein,
collectively, the “Prior Securities Purchase
Agreements”).


 


(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. 
The New Notes and all Other Notes (as defined in Section 2) are
issued by the Company pursuant to the Prior Securities Purchase Agreements (as
defined in Section 2), as amended by the Omnibus Amendment, and all notes
issued in exchange or substitution therefor or replacement or addition thereof
are collectively referred to in this Note as the “Notes,”
and each individually as a “Note.”


 


(2)           Certain Defined Terms.  Each capitalized term used in this Note, and
not otherwise defined, shall have the meaning ascribed thereto in the Prior
Securities Purchase Agreements.  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 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 


 


2

















 


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.


 


(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 


 


3

















 


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 Prior Securities
Purchase Agreements 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 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.


 


4

















 


(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 January 1,
2009, 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 Issuance Date and ending on October 31, 2009, ten percent (10%) per
annum during such period; and (ii) 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, 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).


 


(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 Prior Securities Purchase Agreements (the “Prior Notes”),
the New Notes 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.


 


5

















 


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


 


	
  Date

  	
   

  	
  Ratio

  
	
  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 (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

  
	
  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

  
	
  March 31,
  2009

  	
   

  	
  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.


 


6

















 


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


 


(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 therein,
certifying that there was no Financial Covenant Test Failure or 


 


7














 


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 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 


 


8

















 


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 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 


 


9

















 


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.


 


(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 Prior Securities Purchase Agreements, 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.


 


10

















 


(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 Prior Securities Purchase
Agreements 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 Prior Securities
Purchase Agreements.


 


(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 Prior Securities Purchase Agreements 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.


 


(13)         Payment of Collection, Enforcement and Other
Costs.  Without limiting the provisions of the Prior
Securities Purchase Agreements, 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 Prior Securities Purchase Agreements, the
Security Documents or any other Transaction Document shall be made without any
set-off,


 


11

















 


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 Prior Securities
Purchase Agreements, 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 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
Prior Securities Purchase Agreements 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 


 


12

















 


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 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]


 


13

















 


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:

  



 


[Company Signature Page to Senior Secured Note]


 

















 


COUNTERPART SIGNATURE
PAGE

TO SENIOR SECURED NOTE


 


	
   

  	
   

  	
  ACKNOWLEDGED
  AND AGREED TO:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  HOLDER:

  



 


	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Print Name of Holder:

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Signature

  



 


	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Title (if applicable):

  	
   

  
	
   

  	
   

  	
   

  	
   

  



 


	
   

  	
   

  	
  Address:

  	
   

  
	
   

  	
   

  	
   

  	
   

  



 


[Holder Signature Page to Senior Secured Note]