PURCHASE AGREEMENT; PROVIDED
HOWEVER, THAT NO EVENT OF DEFAULT WILL BE DEEMED TO HAVE OCCURRED PURSUANT TO
THIS SECTION BY REASON OF THE COMPANY'S FAILURE TO PAY ALL OR ANY PORTION OF (I)
THE PAYMENT OF INTEREST DUE DECEMBER 31, 2003, UNDER A LETTER AGREEMENT DATED
SEPTEMBER 25, 2003, BETWEEN DRESDNER AND THE COMPANY (THE "DECEMBER 2003
INTEREST PAYMENT"), OR ANY INTEREST ACCRUED THEREON OR (II) ANY INTEREST DUE AND
PAYABLE ON ANY INTEREST PAYMENT DATE OCCURRING AFTER DECEMBER 31, 2003, UP TO
BUT NOT INCLUDING THE MATURITY DATE, OR ANY INTEREST ACCRUED THEREON; PROVIDED
THAT THE COMPANY PAYS TO THE REGISTERED HOLDER IN CASH ON EACH INTEREST PAYMENT
DATE OCCURRING ON OR AFTER SEPTEMBER 30, 2004, THE AMOUNT OF INTEREST THAT HAS
ACCRUED AND BECOME PAYABLE THROUGH SUCH DATE PURSUANT TO SECTION 2 HEREOF TO THE
EXTENT AND ONLY IF PERMITTED UNDER SECTION 7.11 OF THE REVOLVING CREDIT AND TERM
LOAN AGREEMENT DATED AS OF JANUARY 10, 2002, BETWEEN CAPITALSOURCE FINANCE LLC
AND THE COMPANY, AS AMENDED BY THE FOURTH AMENDMENT THERETO DATED AS OF DECEMBER
29, 2003; AND PROVIDED FURTHER THAT, BEGINNING OCTOBER 1, 2003, AND CONTINUING
UNTIL THE COMPANY HAS PAID IN FULL THE DECEMBER 2003 INTEREST PAYMENT AND ALL
INTEREST DUE AND PAYABLE ON ANY INTEREST PAYMENT DATE OCCURRING AFTER DECEMBER
31, 2003, THROUGH THE DATE ON WHICH THE COMPANY
4
IS NO LONGER IN ARREARS WITH RESPECT TO ANY INTEREST THAT BECAME DUE AND PAYABLE
ON OR BEFORE THE INTEREST PAYMENT DATE IMMEDIATELY PRECEDING SUCH DATE (AT WHICH
TIME THE INTEREST RATE ON THIS CONVERTIBLE NOTE WILL REVERT TO TEN PERCENT
(10%)), INTEREST WILL ACCRUE ON THE UNPAID PRINCIPAL AMOUNT OF THE CONVERTIBLE
NOTE OUTSTANDING FROM TIME TO TIME, TOGETHER WITH ALL ACCRUED AND UNPAID
INTEREST AS OF THE INTEREST PAYMENT DATE IMMEDIATELY PRECEDING THE DETERMINATION
OF THE AMOUNT OF INTEREST THUS ACCRUED, AT THE RATE OF THIRTEEN PERCENT (13%)
PER ANNUM (IN EACH CASE, COMPUTED ON THE BASIS OF A 360-DAY YEAR, AS
APPROPRIATE, AND THE ACTUAL NUMBER OF DAYS ELAPSED IN ANY YEAR), OR (IF LESS) AT
THE HIGHEST RATE THEN PERMITTED UNDER APPLICABLE LAW;
(III)
THE COMPANY FAILS TO PERFORM OR OBSERVE ANY COVENANT OR AGREEMENT
CONTAINED IN PARAGRAPHS 2C OR 2G OF THE PURCHASE AGREEMENT;
(IV)
THE COMPANY FAILS TO PERFORM OR OBSERVE ANY OTHER COVENANT OR
AGREEMENT CONTAINED IN THE CONVERTIBLE NOTES, THE PURCHASE AGREEMENT OR ANY OF
THE OTHER INVESTMENT DOCUMENTS, AND SUCH FAILURE IS NOT CURED WITHIN TEN (10)
DAYS AFTER THE OCCURRENCE OF SUCH FAILURE;
(V)
ANY REPRESENTATION, WARRANTY, STATEMENT OR INFORMATION CONTAINED
IN THE PURCHASE AGREEMENT OR ANY OTHER INVESTMENT DOCUMENT OR REQUIRED TO BE
FURNISHED TO ANY HOLDER OF THE CONVERTIBLE NOTES PURSUANT TO THE PURCHASE
AGREEMENT OR ANY OTHER INVESTMENT DOCUMENT IS FALSE OR MISLEADING IN ANY
MATERIAL RESPECT ON THE DATE MADE OR FURNISHED;
(VI)
THE COMPANY OR ANY SUBSIDIARY MAKES AN ASSIGNMENT FOR THE BENEFIT
OF CREDITORS OR ADMITS IN WRITING ITS INABILITY TO PAY ITS DEBTS GENERALLY AS
THEY BECOME