PAYMENT").
THE DEFAULT PAYMENT SHALL BE 130% OF THE OUTSTANDING PRINCIPAL
AMOUNT OF THE NOTE, PLUS ACCRUED BUT UNPAID INTEREST, ALL OTHER FEES THEN
REMAINING UNPAID, AND ALL OTHER AMOUNTS PAYABLE HEREUNDER.
ADDITIONALLY, AT THE
DIRECTION OF LAURUS, THE BORROWER SHALL ENTER INTO AN ADDITIONAL CONVERTIBLE
DEBT TRANSACTION WITH LAURUS, THE PROCEEDS OF WHICH SHALL BE USED BY THE
BORROWER TO PAYOFF IN FULL ALL OBLIGATIONS AND LIABILITIES THEN OWING BY THE
BORROWER TO WELLS FARGO BUSINESS CREDIT, INC.
IN CONNECTION THEREWITH, THE
BORROWER SHALL DELIVER TO LAURUS AN ADDITIONAL SECURED CONVERTIBLE NOTE,
REGISTRATION RIGHTS AGREEMENT, SECURITIES PURCHASE AGREEMENT AND COMMON STOCK
PURCHASE WARRANT ON TERMS IDENTICAL TO THOSE SET FORTH IN SUCH DOCUMENTS,
INSTRUMENTS AND AGREEMENTS ENTERED INTO BY THE BORROWER IN CONNECTION WITH THE
TRANSACTIONS CONTEMPLATED HEREBY.
7
5.2
DEFAULT PAYMENT DATE AND DEFAULT NOTICE PERIOD.
THE DEFAULT PAYMENT SHALL
BE DUE AND PAYABLE ON THE FIFTH BUSINESS DAY AFTER THE DATE WRITTEN NOTICE IS
SENT FROM THE HOLDER TO THE BORROWER OF AN EVENT OF DEFAULT AS DEFINED IN
ARTICLE IV ("DEFAULT PAYMENT DATE").
THE PERIOD BETWEEN THE DATE OF THE WRITTEN
NOTICE FROM THE HOLDER TO THE BORROWER OF AN EVENT OF DEFAULT AND THE DEFAULT
PAYMENT DATE SHALL BE THE "DEFAULT NOTICE PERIOD."
IF DURING THE DEFAULT NOTICE
PERIOD, THE BORROWER CURES THE EVENT OF DEFAULT, THE EVENT OF DEFAULT WILL NO
LONGER EXIST AND ANY RIGHTS THE HOLDER HAD PERTAINING TO THE EVENT OF DEFAULT
WILL NO LONGER EXIST.
IF THE EVENT OF DEFAULT IS NOT CURED DURING THE DEFAULT
NOTICE PERIOD, ALL AMOUNTS PAYABLE HEREUNDER SHALL BE DUE AND PAYABLE ON THE
DEFAULT PAYMENT DATE, ALL WITHOUT FURTHER DEMAND, PRESENTMENT OR NOTICE, OR
GRACE PERIOD, ALL OF WHICH HEREBY ARE EXPRESSLY WAIVED.
5.3
CUMULATIVE REMEDIES.
THE REMEDIES UNDER THIS NOTE SHALL BE CUMULATIVE.
ARTICLE VI
MISCELLANEOUS
6.1
FAILURE OR INDULGENCE NOT WAIVER.
NO FAILURE OR DELAY ON THE PART OF THE
HOLDER HEREOF 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.
ALL RIGHTS AND REMEDIES EXISTING HEREUNDER
ARE CUMULATIVE TO, AND NOT EXCLUSIVE OF, ANY RIGHTS OR REMEDIES OTHERWISE
AVAILABLE.
6.2
NOTICES.
ANY NOTICE HEREIN REQUIRED OR PERMITTED TO BE GIVEN SHALL BE IN
WRITING AND SHALL BE DEEMED EFFECTIVELY GIVEN:
(A) UPON PERSONAL DELIVERY TO
THE PARTY NOTIFIED, (B) WHEN SENT BY CONFIRMED TELEX OR FACSIMILE IF SENT DURING
NORMAL BUSINESS HOURS OF THE RECIPIENT BUT, IF NOT, THEN ON THE NEXT BUSINESS
DAY, (C) FIVE DAYS AFTER HAVING BEEN SENT BY REGISTERED OR CERTIFIED MAIL,
RETURN RECEIPT REQUESTED, POSTAGE PREPAID, OR (D) ONE DAY AFTER DEPOSIT WITH A
NATIONALLY RECOGNIZED OVERNIGHT COURIER, SPECIFYING NEXT DAY DELIVERY, WITH
WRITTEN VERIFICATION OF RECEIPT.
ALL COMMUNICATIONS SHALL BE SENT TO THE
BORROWER AT THE ADDRESS AS SET FORTH ON THE SIGNATURE PAGE TO THE PURCHASE
AGREEMENT EXECUTED