(THE "EVENT OF DEFAULT REDEMPTION
NOTICE") TO THE COMPANY, WHICH EVENT OF DEFAULT REDEMPTION NOTICE SHALL INDICATE
THE PORTION OF THIS NOTE THE HOLDER IS ELECTING TO REDEEM.
EACH PORTION OF THIS
NOTE SUBJECT TO REDEMPTION BY THE COMPANY PURSUANT TO THIS SECTION 4(B) SHALL BE
REDEEMED BY THE COMPANY AT A PRICE EQUAL TO THE GREATER OF (I) THE PRODUCT OF
(X) THE CONVERSION AMOUNT TO BE REDEEMED AND (Y) THE REDEMPTION PREMIUM AND (II)
THE PRODUCT OF (A) THE CONVERSION RATE WITH RESPECT TO SUCH CONVERSION AMOUNT IN
EFFECT AT SUCH TIME AS THE HOLDER DELIVERS AN EVENT OF DEFAULT REDEMPTION NOTICE
AND (B) THE CLOSING SALE PRICE OF THE COMMON STOCK ON THE DATE IMMEDIATELY
PRECEDING SUCH EVENT OF DEFAULT (THE "EVENT OF DEFAULT REDEMPTION PRICE").
REDEMPTIONS REQUIRED BY THIS SECTION 4(B) SHALL BE MADE IN ACCORDANCE WITH THE
PROVISIONS OF SECTION 12.
IN THE EVENT OF A PARTIAL REDEMPTION OF THIS NOTE
PURSUANT HERETO, THE PRINCIPAL AMOUNT REDEEMED SHALL BE DEDUCTED FROM THE
INSTALLMENT AMOUNTS RELATING TO THE APPLICABLE INSTALLMENT DATES AS SET FORTH IN
THE EVENT OF DEFAULT REDEMPTION NOTICE.
(C)
PAYMENT OF SENIOR CREDIT FACILITY.
WITHIN 61 DAYS AFTER THE
OCCURRENCE OF THE EVENT OF DEFAULT SPECIFIED IN SECTION 4(A)(VI)(C) HEREOF, THE
COMPANY SHALL (I) EITHER (A) PAY THE FULL AMOUNT OF ALL SENIOR INDEBTEDNESS
OUTSTANDING UNDER THE SENIOR CREDIT FACILITY, OR (B) SECURE THE SENIOR
INDEBTEDNESS OUTSTANDING UNDER THE SENIOR CREDIT FACILITY WITH CASH COLLATERAL,
AND (II) OBTAIN FROM THE LENDER UNDER THE SENIOR CREDIT FACILITY A WRITTEN
ACKNOWLEDGMENT THAT THE RESTRICTIONS ON PURSUIT OF REMEDIES BY HOLDERS OF THE
NOTES UNDER THE SUBORDINATION AGREEMENT (AS DEFINED IN THE SECURITIES PURCHASE
AGREEMENT) ARE NO LONGER IN EFFECT.
9
(5)
RIGHTS UPON FUNDAMENTAL TRANSACTION AND CHANGE OF CONTROL.
(A)
ASSUMPTION.
THE COMPANY SHALL NOT ENTER INTO OR BE PARTY TO A
FUNDAMENTAL TRANSACTION UNLESS (I)
THE SUCCESSOR ENTITY ASSUMES IN WRITING ALL
OF THE OBLIGATIONS OF THE COMPANY UNDER THIS NOTE AND THE OTHER TRANSACTION
DOCUMENTS IN ACCORDANCE WITH THE PROVISIONS OF THIS SECTION 5(A) PURSUANT TO
WRITTEN AGREEMENTS IN FORM AND SUBSTANCE SATISFACTORY TO THE REQUIRED HOLDERS
AND APPROVED BY THE REQUIRED HOLDERS PRIOR TO SUCH FUNDAMENTAL TRANSACTION,
INCLUDING AGREEMENTS TO DELIVER TO EACH HOLDER OF NOTES IN EXCHANGE FOR SUCH
NOTES A SECURITY OF THE SUCCESSOR ENTITY EVIDENCED BY A WRITTEN INSTRUMENT
SUBSTANTIALLY SIMILAR IN FORM AND SUBSTANCE TO THE NOTES, INCLUDING, WITHOUT
LIMITATION, HAVING A PRINCIPAL AMOUNT AND INTEREST RATE EQUAL TO THE PRINCIPAL
AMOUNTS AND THE INTEREST RATES OF THE NOTES HELD BY SUCH HOLDER AND HAVING
SIMILAR RANKING TO THE NOTES, AND SATISFACTORY TO THE REQUIRED HOLDERS AND
(II) THE SUCCESSOR ENTITY (INCLUDING ITS PARENT ENTITY) IS A PUBLICLY TRADED
CORPORATION WHOSE COMMON STOCK IS QUOTED ON OR LISTED FOR TRADING ON AN ELIGIBLE
MARKET.
UPON THE OCCURRENCE OF ANY FUNDAMENTAL TRANSACTION, THE SUCCESSOR
ENTITY SHALL SUCCEED TO, AND BE SUBSTITUTED FOR (SO THAT FROM AND AFTER THE DATE
OF SUCH FUNDAMENTAL TRANSACTION, THE PROVISIONS OF THIS NOTE