OTHER PERSONS MAKING OR
PARTY TO, OR ASSOCIATED OR AFFILIATED WITH THE OTHER PERSONS MAKING OR PARTY TO,
SUCH STOCK PURCHASE AGREEMENT OR OTHER BUSINESS COMBINATION), (E) REORGANIZE,
RECAPITALIZE OR RECLASSIFY ITS COMMON STOCK OR (II) ANY "PERSON" OR "GROUP" (AS
THESE TERMS ARE USED FOR PURPOSES OF SECTIONS 13(D) AND 14(D) OF THE EXCHANGE
ACT) IS OR SHALL BECOME THE "BENEFICIAL OWNER" (AS DEFINED IN RULE 13D-3 UNDER
THE EXCHANGE ACT), DIRECTLY OR INDIRECTLY, OF 50% OF THE AGGREGATE VOTING STOCK
OF THE COMPANY.
36
(S)
"GAAP" MEANS UNITED STATES GENERALLY
ACCEPTED ACCOUNTING PRINCIPLES, CONSISTENTLY APPLIED.
(T)
"HOLDER PRO RATA AMOUNT" MEANS A FRACTION
(I) THE NUMERATOR OF WHICH IS THE ORIGINAL PRINCIPAL AMOUNT OF THIS NOTE ON THE
ISSUANCE DATE AND (II) THE DENOMINATOR OF WHICH IS THE AGGREGATE ORIGINAL
PRINCIPAL AMOUNT OF ALL NOTES ISSUED TO THE INITIAL PURCHASERS PURSUANT TO THE
SECURITIES PURCHASE AGREEMENT ON THE ISSUANCE DATE.
(U)
"INDEBTEDNESS" OF ANY PERSON MEANS, WITHOUT
DUPLICATION (I) ALL INDEBTEDNESS FOR BORROWED MONEY, (II) ALL OBLIGATIONS
ISSUED, UNDERTAKEN OR ASSUMED AS THE DEFERRED PURCHASE PRICE OF PROPERTY OR
SERVICES, INCLUDING (WITHOUT LIMITATION) "CAPITAL LEASES" IN ACCORDANCE WITH
GAAP (OTHER THAN TRADE PAYABLES ENTERED INTO IN THE ORDINARY COURSE OF BUSINESS
AND NOT OUTSTANDING FOR MORE THAN 120 DAYS AFTER THE DATE SUCH PAYABLE WAS
CREATED), (III) ALL REIMBURSEMENT OR PAYMENT OBLIGATIONS WITH RESPECT TO LETTERS
OF CREDIT, SURETY BONDS AND OTHER SIMILAR INSTRUMENTS, (IV) ALL OBLIGATIONS
EVIDENCED BY NOTES, BONDS, DEBENTURES OR SIMILAR INSTRUMENTS, INCLUDING
OBLIGATIONS SO EVIDENCED INCURRED IN CONNECTION WITH THE ACQUISITION OF
PROPERTY, ASSETS OR BUSINESSES, (V) ALL INDEBTEDNESS CREATED OR ARISING UNDER
ANY CONDITIONAL SALE OR OTHER TITLE RETENTION AGREEMENT, OR INCURRED AS
FINANCING, IN EITHER CASE WITH RESPECT TO ANY PROPERTY OR ASSETS ACQUIRED WITH
THE PROCEEDS OF SUCH INDEBTEDNESS (EVEN THOUGH THE RIGHTS AND REMEDIES OF THE
SELLER OR BANK UNDER SUCH AGREEMENT IN THE EVENT OF DEFAULT ARE LIMITED TO
REPOSSESSION OR SALE OF SUCH PROPERTY), (VI) ALL MONETARY OBLIGATIONS UNDER ANY
LEASING OR SIMILAR ARRANGEMENT WHICH, IN ACCORDANCE WITH GAAP, CONSISTENTLY
APPLIED FOR THE PERIODS COVERED THEREBY, IS CLASSIFIED AS A CAPITAL LEASE,
(VII) ALL INDEBTEDNESS REFERRED TO IN CLAUSES (I) THROUGH (VI) ABOVE SECURED BY
(OR FOR WHICH THE HOLDER OF SUCH INDEBTEDNESS HAS AN EXISTING RIGHT, CONTINGENT
OR OTHERWISE, TO BE SECURED BY) ANY MORTGAGE, LIEN, PLEDGE, CHARGE, SECURITY
INTEREST OR OTHER ENCUMBRANCE UPON OR IN ANY PROPERTY OR ASSETS (INCLUDING
ACCOUNTS AND CONTRACT RIGHTS) OWNED BY ANY PERSON, EVEN THOUGH THE PERSON WHICH
OWNS SUCH ASSETS OR PROPERTY HAS NOT ASSUMED OR BECOME LIABLE FOR THE PAYMENT OF
SUCH INDEBTEDNESS, AND (VIII) ALL CONTINGENT OBLIGATIONS IN RESPECT OF
INDEBTEDNESS OR OBLIGATIONS OF OTHERS OF THE KINDS REFERRED TO IN CLAUSES
(I) THROUGH (VII) ABOVE.
(V)
"INTEREST RATE" MEANS, (I) WITH RESPECT TO THE
NON-DEFEASANCE AMOUNT, 5.875% PER ANNUM AND (II) WITH RESPECT TO THE DEFEASANCE
AMOUNT, THE GREATER OF (A) 1.0% PER ANNUM AND (B) THE APPLICABLE RATE OR RATES
OF INTEREST BEING EARNED UNDER