exv10w73



 







Exhibit 10.73




CREDIT AND GUARANTY AGREEMENT




dated
as of October 26, 2007



among




SYNTAX-BRILLIAN CORPORATION

and

SYNTAX-BRILLIAN SPE, INC.,

as Borrowers




CERTAIN SUBSIDIARIES OF SYNTAX-BRILLIAN CORPORATION,

as Guarantors,




VARIOUS
LENDERS,


and




SILVER POINT FINANCE, LLC,

as Administrative Agent, Collateral Agent, and Lead Arranger




 






$250,000,000 Senior Secured Credit Facilities

 








 









 








TABLE OF CONTENTS




	 	 	 	 	 	 	 
	SECTION 1.

	 	DEFINITIONS AND INTERPRETATION
	 	 	2	 
	1.1

	 	Definitions
	 	 	2	 
	1.2

	 	Accounting Terms
	 	 	45	 
	1.3

	 	Interpretation, etc
	 	 	45	 
	 
	 	 	 	 	 	 
	SECTION 2.

	 	LOANS AND LETTERS OF CREDIT
	 	 	45	 
	2.1

	 	Term Loans
	 	 	45	 
	2.2

	 	Revolving Loans
	 	 	46	 
	2.3

	 	Issuance of Letters of Credit and Purchase of Participations Therein
	 	 	47	 
	2.4

	 	Pro Rata Shares; Availability of Funds
	 	 	51	 
	2.5

	 	Use of Proceeds
	 	 	52	 
	2.6

	 	Evidence of Debt; Register; Lenders’ Books and Records; Notes
	 	 	52	 
	2.7

	 	Interest on Loans
	 	 	53	 
	2.8

	 	Conversion/Continuation
	 	 	55	 
	2.9

	 	Default Interest
	 	 	55	 
	2.10

	 	Fees
	 	 	55	 
	2.11

	 	Scheduled Payments/Commitment Reductions
	 	 	56	 
	2.12

	 	Voluntary Prepayments/Commitment Reductions
	 	 	57	 
	2.13

	 	Mandatory Prepayments/Commitment Reductions
	 	 	58	 
	2.14

	 	Application of Prepayments/Reductions
	 	 	60	 
	2.15

	 	General Provisions Regarding Payments
	 	 	62	 
	2.16

	 	Ratable Sharing
	 	 	66	 
	2.17

	 	Making or Maintaining LIBOR Rate Loans
	 	 	66	 
	2.18

	 	Increased Costs; Capital Adequacy; Reserves on LIBOR Rate Loans
	 	 	68	 
	2.19

	 	Taxes; Withholding, etc
	 	 	70	 
	2.20

	 	Obligation to Mitigate
	 	 	73	 
	2.21

	 	Defaulting Lenders
	 	 	73	 
	2.22

	 	Removal or Replacement of a Lender
	 	 	74	 
	 
	 	 	 	 	 	 
	SECTION 3.

	 	CONDITIONS PRECEDENT
	 	 	75	 
	3.1

	 	Closing Date
	 	 	75	 
	3.2

	 	Conditions to Each Credit Extension
	 	 	80	 
	 
	 	 	 	 	 	 
	SECTION 4.

	 	REPRESENTATIONS AND WARRANTIES
	 	 	82	 
	4.1

	 	Organization; Requisite Power and Authority; Qualification
	 	 	82	 
	4.2

	 	Capital Stock and Ownership
	 	 	82	 
	4.3

	 	Due Authorization
	 	 	82	 
	4.4

	 	No Conflict
	 	 	82	 
	4.5

	 	Governmental Consents
	 	 	83	 
	4.6

	 	Binding Obligation
	 	 	83	 
	4.7

	 	Historical Financial Statements
	 	 	83	 
	4.8

	 	Projections
	 	 	83	 
	4.9

	 	No Material Adverse Change
	 	 	84	 
	4.10

	 	No Restricted Junior Payments
	 	 	84	 
	4.11

	 	Adverse Proceedings, etc
	 	 	84	 






 









 






	 	 	 	 	 	 	 
	4.12

	 	Payment of Taxes and Other Amounts
	 	 	84	 
	4.13

	 	Properties
	 	 	84	 
	4.14

	 	Environmental Matters
	 	 	85	 
	4.15

	 	No Defaults
	 	 	86	 
	4.16

	 	Material Contracts
	 	 	86	 
	4.17

	 	Governmental Regulation
	 	 	86	 
	4.18

	 	Margin Stock
	 	 	86	 
	4.19

	 	Employee Matters
	 	 	86	 
	4.20

	 	Employee Benefit Plans
	 	 	87	 
	4.21

	 	Certain Fees
	 	 	88	 
	4.22

	 	Solvency
	 	 	88	 
	4.23

	 	Intentionally Omitted
	 	 	88	 
	4.24

	 	Compliance with Statutes, etc
	 	 	88	 
	4.25

	 	Disclosure
	 	 	88	 
	4.26

	 	Terrorism Laws
	 	 	88	 
	4.27

	 	Insurance
	 	 	88	 
	4.28

	 	Common Enterprise
	 	 	89	 
	4.29

	 	Security Interest in Collateral
	 	 	89	 
	4.30

	 	Affiliate Transactions
	 	 	89	 
	4.31

	 	Intellectual Property
	 	 	89	 
	4.32

	 	Permits, Etc
	 	 	90	 
	4.33

	 	Customers and Suppliers
	 	 	90	 
	4.34

	 	Flood Zone
	 	 	90	 
	 
	 	 	 	 	 	 
	SECTION 5.

	 	AFFIRMATIVE COVENANTS
	 	 	91	 
	5.1

	 	Financial Statements and Other Reports
	 	 	91	 
	5.2

	 	Existence
	 	 	97	 
	5.3

	 	Payment of Taxes and Claims
	 	 	97	 
	5.4

	 	Maintenance of Properties
	 	 	97	 
	5.5

	 	Insurance
	 	 	97	 
	5.6

	 	Books and Records; Inspections
	 	 	98	 
	5.7

	 	Lenders Meetings
	 	 	98	 
	5.8

	 	Compliance with Laws
	 	 	99	 
	5.9

	 	Environmental
	 	 	99	 
	5.10

	 	Subsidiaries
	 	 	101	 
	5.11

	 	Additional Material Real Estate Assets
	 	 	102	 
	5.12

	 	Intentionally Omitted
	 	 	103	 
	5.13

	 	Intentionally Omitted
	 	 	103	 
	5.14

	 	Further Assurances
	 	 	103	 
	5.15

	 	Miscellaneous Business Covenants
	 	 	103	 
	5.16

	 	Use of Proceeds
	 	 	103	 
	5.17

	 	Post Closing Matters
	 	 	104	 
	5.18

	 	Key Man Insurance
	 	 	104	 
	5.19

	 	Foreign Credit Insurance
	 	 	104	 
	5.20

	 	Projections
	 	 	104	 
	5.21

	 	Independent Director
	 	 	104	 






-ii-









 






	 	 	 	 	 	 	 
	SECTION 6.

	 	NEGATIVE COVENANTS
	 	 	104	 
	6.1

	 	Indebtedness
	 	 	105	 
	6.2

	 	Liens
	 	 	107	 
	6.3

	 	No Further Negative Pledges
	 	 	108	 
	6.4

	 	Restricted Junior Payments
	 	 	108	 
	6.5

	 	Restrictions on Subsidiary Distributions
	 	 	109	 
	6.6

	 	Investments
	 	 	109	 
	6.7

	 	Financial Covenants
	 	 	110	 
	6.8

	 	Fundamental Changes; Disposition of Assets; Acquisitions
	 	 	112	 
	6.9

	 	Disposal of Subsidiary Interests
	 	 	114	 
	6.10

	 	Sales and Lease Backs
	 	 	114	 
	6.11

	 	Transactions with Shareholders and Affiliates
	 	 	114	 
	6.12

	 	Conduct of Business
	 	 	114	 
	6.13

	 	Permitted Activities of SPV
	 	 	114	 
	6.14

	 	Amendments or Waivers of Certain Contractual Obligations
	 	 	115	 
	6.15

	 	Customers and Suppliers
	 	 	115	 
	6.16

	 	Fiscal Year
	 	 	115	 
	6.17

	 	Deposit Accounts
	 	 	115	 
	6.18

	 	Amendments to Organizational Agreements and Material Contracts
	 	 	115	 
	6.19

	 	Prepayments of Certain Indebtedness
	 	 	115	 
	6.20

	 	Issuance of Capital Stock
	 	 	116	 
	6.21

	 	Affiliate Payments
	 	 	116	 
	6.22

	 	Accounts
	 	 	116	 
	6.23

	 	Judgments and Litigations
	 	 	116	 
	6.24

	 	Panel Inventory
	 	 	116	 
	 
	 	 	 	 	 	 
	SECTION 7.

	 	GUARANTY
	 	 	116	 
	7.1

	 	Guaranty of the Obligations
	 	 	116	 
	7.2

	 	Contribution by Guarantors
	 	 	117	 
	7.3

	 	Payment by Guarantors
	 	 	117	 
	7.4

	 	Liability of Guarantors Absolute
	 	 	118	 
	7.5

	 	Waivers by Guarantors
	 	 	120	 
	7.6

	 	Guarantors’ Rights of Subrogation, Contribution, etc
	 	 	120	 
	7.7

	 	Subordination of Other Obligations
	 	 	121	 
	7.8

	 	Continuing Guaranty
	 	 	121	 
	7.9

	 	Authority of Guarantors or Borrowers
	 	 	121	 
	7.10

	 	Financial Condition of Borrowers
	 	 	121	 
	7.11

	 	Bankruptcy, etc.
	 	 	122	 
	7.12

	 	Discharge of Guaranty Upon Sale of Guarantor
	 	 	122	 
	7.13

	 	Taxes
	 	 	123	 
	 
	 	 	 	 	 	 
	SECTION 8.

	 	EVENTS OF DEFAULT
	 	 	123	 
	8.1

	 	Events of Default
	 	 	123	 
	 
	 	 	 	 	 	 
	SECTION 9.

	 	AGENTS
	 	 	126	 
	9.1

	 	Appointment of Agents
	 	 	126	 
	9.2

	 	Powers and Duties
	 	 	127	 
	9.3

	 	General Immunity
	 	 	127	 






-iii-









 






	 	 	 	 	 	 	 
	9.4

	 	Agents Entitled to Act as Lender
	 	 	128	 
	9.5

	 	Lenders’ Representations, Warranties and Acknowledgment
	 	 	129	 
	9.6

	 	Right to Indemnity
	 	 	129	 
	9.7

	 	Successor Administrative Agent
	 	 	130	 
	9.8

	 	Collateral Matters, Collateral, Documents and Guaranty
	 	 	132	 
	9.9

	 	Posting of Approved Electronic Communications
	 	 	133	 
	9.10

	 	Proofs of Claim
	 	 	134	 
	9.11

	 	Agents and Arrangers
	 	 	135	 
	 
	 	 	 	 	 	 
	SECTION 10.

	 	MISCELLANEOUS
	 	 	135	 
	10.1

	 	Notices
	 	 	135	 
	10.2

	 	Expenses
	 	 	135	 
	10.3

	 	Indemnity
	 	 	136	 
	10.4

	 	Set Off
	 	 	137	 
	10.5

	 	Amendments and Waivers
	 	 	137	 
	10.6

	 	Successors and Assigns; Participations
	 	 	139	 
	10.7

	 	Special Purpose Funding Vehicles
	 	 	142	 
	10.8

	 	Independence of Covenants
	 	 	143	 
	10.9

	 	Survival of Representations, Warranties and Agreements
	 	 	143	 
	10.10

	 	No Waiver; Remedies Cumulative
	 	 	143	 
	10.11

	 	Marshalling; Payments Set Aside
	 	 	144	 
	10.12

	 	Severability
	 	 	144	 
	10.13

	 	Obligations Several; Independent Nature of Lenders’ Rights
	 	 	144	 
	10.14

	 	Headings
	 	 	144	 
	10.15

	 	APPLICABLE LAW
	 	 	144	 
	10.16

	 	CONSENT TO JURISDICTION
	 	 	145	 
	10.17

	 	WAIVER OF JURY TRIAL
	 	 	145	 
	10.18

	 	Confidentiality
	 	 	146	 
	10.19

	 	Usury Savings Clause
	 	 	147	 
	10.20

	 	Counterparts
	 	 	147	 
	10.21

	 	Effectiveness
	 	 	147	 
	10.22

	 	Patriot Act
	 	 	147	 
	10.23

	 	Disclosure
	 	 	148	 
	10.24

	 	Appointment for Perfection
	 	 	148	 
	10.25

	 	Advertising and Publicity
	 	 	148	 
	10.26

	 	Foreign Currency
	 	 	148	 
	10.27

	 	Immunity
	 	 	149	 






-iv-









 






	 	 	 	 	 	 	 
	APPENDICES:

	 	 	A-1	 	 	Tranche A Term Loan Commitments
	 

	 	 	A-2	 	 	Tranche A-1 Term Loan Commitments
	 

	 	 	A-3	 	 	Revolving Commitments
	 

	 	 	B	 	 	Notice Addresses
	 
	 	 	 	 	 	 
	SCHEDULES:

	 	 	1.1(a)	 	 	Certain Material Real Estate Assets
	 

	 	 	1.1(b)	 	 	Contractor Agreements
	 

	 	 	1.1(c)	 	 	Panel Deposit Agreements
	 

	 	 	1.1(d)	 	 	Contractor Documents
	 

	 	 	4.1	 	 	Jurisdictions of Organization and Qualification
	 

	 	 	4.2	 	 	Capital Stock and Ownership
	 

	 	 	4.13	 	 	Real Estate Assets
	 

	 	 	4.16	 	 	Material Contracts
	 

	 	 	4.27	 	 	Insurance
	 

	 	 	5.17	 	 	Certain Post Closing Matters
	 

	 	 	6.1	 	 	Certain Indebtedness
	 

	 	 	6.2	 	 	Certain Liens
	 

	 	 	6.6	 	 	Certain Investments
	 

	 	 	6.8(c)	 	 	Foreign Subsidiaries to be Dissolved
	 

	 	 	6.11	 	 	Certain Affiliate Transactions
	 
	 	 	 	 	 	 
	EXHIBITS:

	 	 	A-1	 	 	Funding Notice
	 

	 	 	A-2	 	 	Conversion/Continuation Notice
	 

	 	 	A-3	 	 	Issuance Notice
	 

	 	 	B-1	 	 	Tranche A Term Loan Note
	 

	 	 	B-2	 	 	Tranche A-1 Term Loan Note
	 

	 	 	B-3	 	 	Revolving Loan Note
	 

	 	 	C	 	 	Compliance Certificate
	 

	 	 	D	 	 	Opinions of Counsel
	 

	 	 	E	 	 	Assignment Agreement
	 

	 	 	F	 	 	Certificate Regarding Non-bank Status
	 

	 	 	G-1	 	 	Closing Date Certificate
	 

	 	 	G-2	 	 	Solvency Certificate
	 

	 	 	H	 	 	Counterpart Agreement
	 

	 	 	I-1	 	 	Pledge and Security Agreement
	 

	 	 	I-2	 	 	Hong Kong Fixed and Floating Security Document
	 

	 	 	I-3	 	 	Hong Kong Share Charge
	 

	 	 	J	 	 	[Reserved]
	 

	 	 	K	 	 	Landlord Consent and Subordination Agreement
	 

	 	 	L	 	 	Borrowing Base Certificate
	 

	 	 	M	 	 	Bailee’s Letter







-v-











 





CREDIT AND GUARANTY AGREEMENT




          This CREDIT AND GUARANTY AGREEMENT, dated as of October 26, 2007 is entered into by and among
 , SYNTAX-BRILLIAN CORPORATION, a Delaware corporation (“Company”), SYNTAX-BRILLIAN SPE, INC., a
Delaware corporation (“SPV”, and together with the Company, each a “Borrower” and collectively, the
“Borrowers”) and CERTAIN SUBSIDIARIES OF COMPANY, as Guarantors, the Lenders party hereto from time
to time and SILVER POINT FINANCE, LLC (“Silver Point”), as Administrative Agent (in such capacity,
“Administrative Agent”), Collateral Agent (in such capacity, “Collateral Agent”), and Lead Arranger
(in such capacity, the “Lead Arranger”).




RECITALS:




          WHEREAS, capitalized terms used in these Recitals shall have the respective meanings set forth
for such terms in Section 1.1 hereof;




          WHEREAS, Lenders have agreed to extend certain credit facilities to Borrowers, in an aggregate
principal amount not to exceed $250,000,000, consisting of (a) $110,000,000 aggregate principal
amount of Tranche A Term Loans to be made to the Company, (b) $40,000,000 aggregate principal
amount of Tranche A-1 Term Loans to be made to the SPV, and (c) up to $100,000,000 aggregate
principal amount of Revolving Commitments to be made available to the Company, which will include a
$10,000,000 sub-facility for the issuance of Letters of Credit, the proceeds of which will be used
to (i) repay the Existing Indebtedness (as hereinafter defined), (ii) finance the acquisition by
SPV of up to $40,000,000 of Panel Inventory (as hereinafter defined) to be applied in accordance
with the Panel Deposit Agreements (as hereinafter defined), (iii) finance the working capital and
general corporate purposes of the Company and its Subsidiaries (including the payment of the
amounts specified in the Flow of Funds Agreement), and (iv) pay fees and expenses associated with
the transactions contemplated by this Agreement and the refinancing of the Existing Indebtedness.
The Letters of Credit will be used for general working capital purposes;




          WHEREAS, Company has agreed to secure all of its Obligations as a Borrower of the Tranche A
Term Loans, the Revolving Loans and the Letters of Credit and as a Guarantor of the Tranche A-1
Term Loans by granting to Collateral Agent, for the benefit of Secured Parties, a First Priority
Lien on substantially all of its assets, including a pledge of all of the Capital Stock of each of
its Domestic Subsidiaries and sixty five percent (65%) of all the Capital Stock of each of its
first tier Foreign Subsidiaries;




          WHEREAS, SPV has agreed to secure all of its Obligations as a Borrower of the Tranche A-1 Term
Loans by granting to Collateral Agent, for the benefit of Secured Parties, a First Priority Lien on
all of its assets;




          WHEREAS, each Guarantor has agreed to guarantee the obligations of Borrowers hereunder and to
secure all of its Obligations by granting to Collateral Agent, for the benefit of Secured Parties,
a First Priority Lien on substantially all of its assets, including a pledge of all of the Capital
Stock of each of its Domestic Subsidiaries and sixty five percent (65%) of all the Capital Stock of
each of its first tier Foreign Subsidiaries.




 









 








          NOW, THEREFORE, in consideration of the premises and the agreements, provisions and covenants
herein contained, the parties hereto agree as follows:




     SECTION 1. DEFINITIONS AND INTERPRETATION



          1.1 Definitions. The following terms used herein, including in the preamble, recitals, exhibits and
schedules hereto, shall have the following meanings:




          “Account(s)” means any account or Account as defined under the UCC.




          “Account Debtor” means each Person who is in any way obligated on or in connection with any
Account.




          “Adjusted LIBOR Rate” means, for any Interest Rate Determination Date with respect to an
Interest Period for a LIBOR Rate Loan, the greater of (A) four percent (4.0%) per annum and (B) the
rate per annum obtained by dividing (and rounding upward to the next whole multiple of
one-sixteenth of one percent (1/16 of 1%)) (i) (a) the rate per annum (rounded to the nearest
one-hundredth of one percent (1/100 of 1%)) equal to the rate determined by Administrative Agent to
be the offered rate which appears on the page of the Reuters Screen which displays an average
British Bankers Association Interest Settlement Rate (such page currently being Reuters Screen
LIBOR01 Page) for deposits (for delivery on the first day of such period) with a term equivalent to
such period in Dollars, determined as of approximately 11:00 a.m. (London, England time) on such
Interest Rate Determination Date, or (b) in the event the rate referenced in the preceding clause
(a) does not appear on such page or service or if such page or service shall cease to be available,
the rate per annum (rounded to the nearest one-hundredth of one percent (1/100 of 1%)) equal to the
rate determined by Administrative Agent to be the offered rate on such other page or other service
which displays an average British Bankers Association Interest Settlement Rate for deposits (for
delivery on the first day of such period) with a term equivalent to such period in Dollars,
determined as of approximately 11:00 a.m. (London, England time) on such Interest Rate
Determination Date, or (c) in the event the rates referenced in the preceding clauses (a) and (b)
are not available, the rate per annum (rounded to the nearest one-hundredth of one percent (1/100
of 1%)) equal to the offered quotation rate to first class banks in the London interbank market for
deposits (for delivery on the first day of the relevant period) in Dollars of amounts in same day
funds comparable to the principal amount of the applicable Loan, for which the Adjusted LIBOR Rate
is then being determined with maturities comparable to such period as of approximately 11:00 a.m.
(London, England time) on such Interest Rate Determination Date as determined by Administrative
Agent in accordance with its customary practices, by (ii) an amount equal to (a) one, minus
(b) the Applicable Reserve Requirement.




          “Adjusted Working Capital Assets” means, as at any date of determination, an amount determined
on a consolidated basis for Company and its Subsidiaries equal to (i) the sum, without duplication,
of the amounts as such date of determination of (a) Cash, plus (b) Cash Equivalents, plus (c) the
net amount at such date of all Accounts outstanding other than Accounts for which the Account
Debtor is either SCHOT or Olevia Far East, plus (d) Inventory.




          “Administrative Agent” as defined in the preamble hereto.




-2-









 








          “Administrative Agent’s Account” means an account at a bank designated by Administrative Agent
from time to time as the account into which Credit Parties shall make all payments to
Administrative Agent for the benefit of Agents and Lenders holding the Tranche A Term Loans and the
Tranche A-1 Term Loans under this Agreement and the other Credit Documents.




          “Administrative Agent Loan Account” means an account maintained hereunder by the
Administrative Agent on its books of account at the Payment Office, and with respect to each
Borrower, in which Company will be charged by the Administrative Agent with all Tranche A Term
Loans made to, and all other Obligations with respect to the Tranche A Term Loans incurred by,
Company, and in which SPV will be charged by the Administrative Agent with all Tranche A-1 Term
Loans made to, and all other Obligations with respect to the Tranche A-1 Term Loans incurred by,
SPV.




          “Adverse Proceeding” means any action, suit, proceeding (whether administrative, judicial or
otherwise), governmental investigation or arbitration (whether or not purportedly on behalf of
Company or any of its Subsidiaries) at law or in equity, or before or by any Governmental
Authority, domestic or foreign (including any Environmental Claims) or other regulatory body or any
mediator or arbitrator whether pending or, to the best knowledge of Company or any of its
Subsidiaries, threatened against or affecting Company or any of its Subsidiaries or any property of
Company or any of its Subsidiaries.




          “Affected Lender” as defined in Section 2.17(b).




          “Affected Loans” as defined in Section 2.17(b).




          “Affiliate” means, as applied to any Person, any other Person directly or indirectly
controlling, controlled by, or under common control with, that Person. For the purposes of this
definition, "control” (including, with correlative meanings, the terms "controlling,” “controlled
by” and "under common control with"), as applied to any Person, means the possession, directly or
indirectly, of the power (i) to vote five percent (5%) or more of the Securities having ordinary
voting power for the election of directors of such Person, or (ii) to direct or cause the direction
of the management and policies of that Person, whether through the ownership of voting securities
or by contract or otherwise. Notwithstanding anything to the contrary herein, in no event shall
any Agent, Borrowing Base Agent or Lender be considered an “Affiliate” of any Credit Party.




          “Agent” means (i) each of Administrative Agent and Collateral Agent and (ii) solely with
respect to Section 9, each of Administrative Agent, Borrowing Base Agent and Collateral Agent.




          “Agent Advances” as defined in Section 9.8(c).




          “Aggregate Amounts Due” as defined in Section 2.16.




          “Aggregate Payments” as defined in Section 7.2.




-3-









 








          “Agreement” means this Credit and Guaranty Agreement, dated as of October 26, 2007, as it may
be amended, supplemented or otherwise modified from time to time and any annexes, exhibits,
schedules to any of the foregoing.




          “Applicable Borrower” means (i) with respect to the Tranche A Term Loans, Company, (ii) with
respect to the Tranche A-1 Term Loans, SPV, and (iii) with respect to the Revolving Loans, Company.




          “Applicable Margin” means (i) with respect to LIBOR Rate Loans, a percentage, per annum, equal
to six percent (6.0%); and (ii) with respect to Base Rate Loans, a percentage, per annum, equal to
five percent (5.0%).




          “Applicable Reserve Requirement” means, at any time, for any LIBOR Rate Loan, the maximum
rate, expressed as a decimal, at which reserves (including any basic marginal, special,
supplemental, emergency or other reserves) are required to be maintained with respect thereto
against “Eurocurrency Liabilities” (as such term is defined in Regulation D) under regulations
issued from time to time by the Board of Governors of the Federal Reserve System or other
applicable banking regulator. Without limiting the effect of the foregoing, the Applicable Reserve
Requirement shall reflect any other reserves required to be maintained by such member banks with
respect to (i) any category of liabilities which includes deposits by reference to which the
applicable Adjusted LIBOR Rate or any other interest rate of a Loan is to be determined, or (ii)
any category of extensions of credit or other assets which include LIBOR Rate Loans. A LIBOR Rate
Loan shall be deemed to constitute Eurocurrency liabilities and as such shall be deemed subject to
reserve requirements without benefits of credit for proration, exceptions or offsets that may be
available from time to time to the applicable Lender. The rate of interest on LIBOR Rate Loans
shall be adjusted automatically on and as of the effective date of any change in the Applicable
Reserve Requirement.




          “Asset Sale” means a sale, lease or sublease (as lessor or sublessor), sale and leaseback,
assignment, conveyance, transfer or other disposition to, or any exchange of property with, any
Person, in one transaction or a series of transactions, of all or any part of Company’s or any of
its Subsidiaries’ businesses, assets or properties of any kind, whether real, personal, or mixed
and whether tangible or intangible, whether now owned or hereafter acquired, including the Capital
Stock of any of Company’s Subsidiaries, other than inventory sold or leased in the ordinary course
of business.




          “Assignment Agreement” means an Assignment and Assumption Agreement substantially in the form
of Exhibit E, with such amendments or modifications as may be approved by Administrative Agent.




          “Attributable Debt” means as of the date of determination thereof, without duplication, (i) in
connection with a sale and leaseback transaction, the net present value (discounted according to
GAAP at the cost of debt implied in the lease) of the obligations of the lessee for rental payments
during the then-remaining term of any applicable lease, and (ii) the principal balance outstanding
under any synthetic lease, tax retention operating lease, off-balance sheet loan or similar
off-balance sheet financing product to which such Person is a party, where



-4-









 






such transaction is considered borrowed money indebtedness for tax purposes but is classified
as an operating lease in accordance with GAAP.




          “Authorized Officer” means, as applied to any Person, any individual holding the position of
chairman of the board (if an officer), chief executive officer, president, chief financial officer
or treasurer, in each case, whose signatures and incumbency have been certified to Administrative
Agent.




          “Availability” means, as of any date of determination, the amount equal to the lesser of (a)
the sum of the Revolving Commitments of each Lender at such time, and (b) (i) for the period from
the Closing Date until the date that is ninety (90) days following the Closing Date, (A)
$150,000,000, plus the amount, if any, by which the Borrowing Base at such time exceeds
$150,000,000, minus (B) the aggregate principal amount of the Term Loans outstanding at such time,
and (ii) for the period from the date that is 90 days following the Closing Date until the
Revolving Credit Termination Date, (A) the Borrowing Base at such time, minus (B) the aggregate
principal amount of the Term Loans outstanding at such time.




          “Bailee’s Letter” means a Bailee Letter substantially in the form of Exhibit M with such
amendments or modifications as may be approved by Collateral Agent.




          “Bankruptcy Code” means Title 11 of the United States Code entitled “Bankruptcy,” or any
similar legislation in a relevant jurisdiction, in each case, as now and hereafter in effect, or
any successor statute.




          “Base Rate” means, for any day, a rate per annum equal to the greater of (A) five percent
(5.0%) per annum and (B) the greater of (i) the Prime Rate in effect on such day, and (ii) the
Federal Funds Effective Rate in effect on such day plus 1.0%). Any change in the Base Rate
due to a change in the Prime Rate or the Federal Funds Effective Rate shall be effective on the
effective day of such change in the Prime Rate or the Federal Funds Effective Rate, respectively.




          “Base Rate Loan” means a Loan bearing interest at a rate determined by reference to the Base
Rate.




          “Beneficiary” means each Agent, Borrowing Base Agent and Lender.




          “Borrower” and “Borrowers” as defined in the preamble hereto.




          “Borrowing Base” means, at any time, the difference between (i) the sum of (A) up to
eighty-five percent (85.0%) of the value of the Net Amount of Eligible Accounts of the Credit
Parties at such time, less the amount, if any, of the Dilution Reserve, plus (B) for the
period from the Closing Date until the date that is ninety (90) days following the Closing Date, up
to twenty-five percent (25.0%) of the value of the Net Amount of Eligible Foreign Accounts of the
Credit Parties at such time, less the amount, if any, of the Dilution Reserve, plus (C) up
to eighty-five percent (85.0%) of the Net Orderly Liquidation Value of Eligible Inventory of the
Credit Parties, as set forth in the most recent Inventory appraisal obtained by the Administrative
Agent, plus (D) for the period from the Closing Date until the date that is ninety (90)
days following the Closing Date, the lesser of (x) up to thirty-seven and one-half percent (37.5%)
of the value of the Eligible Panel Inventory of SPV, and (y) the aggregate outstanding principal




-5-









 







amount of the Tranche A-1 Term Loan, in each case, as determined by the Borrowing Base Agent
and the Administrative Agent in their reasonable business judgment, and (ii) such reserves (other
than the Dilution Reserve) as the Administrative Agent or the Borrowing Base Agent may deem
appropriate in the exercise of their reasonable business judgment, including, without limitation
any reserves or other adjustments established by the Borrowing Base Agent or the Administrative
Agent on the basis of any collateral audits conducted hereunder. In the event that the
Administrative Agent or the Borrowing Base Agent, at any time in their reasonable discretion,
determines that the Dollar amount of Eligible Accounts or Eligible Foreign Accounts collectable by
Credit Parties is reduced or diluted as a result of discounts or rebates granted by Credit Parties
to the respective Account Debtor(s), returned or rejected Inventory or services, or such other
reasons or factors as the Administrative Agent or the Borrowing Base Agent reasonably deems
applicable, the Administrative Agent or the Borrowing Base Agent may, in their reasonable
discretion, reduce or otherwise modify the percentage of Eligible Accounts or Eligible Foreign
Accounts, as applicable, included within the Borrowing Base and/or reduce the dollar amount of
Eligible Accounts or Eligible Foreign Accounts, as applicable, by an amount determined by
Administrative Agent or the Borrowing Base Agent in their reasonable credit judgment.




          “Borrowing Base Agent” means The CIT Group/Commercial Services, Inc., in its capacity as
borrowing base agent, together with its permitted successors and assigns in accordance with Section
9.7.




          “Borrowing Base Agent’s Account” means an account at a bank designated by Borrowing Base Agent
from time to time as the account into which Credit Parties shall make all payments to Borrowing
Base Agent for the benefit of Agents, Borrowing Base Agent and Lenders holding Revolving Loans
under this Agreement and the other Credit Documents.




          “Borrowing Base Agent Loan Account” means an account maintained hereunder by the Borrowing
Base Agent on its books of account at the Payment Office, and with respect to Company, in which
Company will be charged by the Borrowing Base Agent with all Revolving Loans made to, and all other
Obligations with respect to the Revolving Loans incurred by, and Letter of Credit Usage incurred
for the account of, Company.




          “Borrowing Base Certificate” means a certificate signed by an Authorized Officer of each
Borrower and setting forth the calculation of the Borrowing Base in compliance with Section 5.1(q),
substantially in the form of Exhibit L.




          “Business Day” means (i) any day excluding Saturday, Sunday and any day which is a legal
holiday under the laws of the State of New York or is a day on which banking institutions located
in such state are authorized or required by law or other governmental action to close, and (ii)
with respect to all notices, determinations, fundings and payments in connection with the Adjusted
LIBOR Rate or any LIBOR Rate Loans, the term "Business Day” shall mean any day which is a Business
Day described in clause (i) and which is also a day for trading by and between banks in Dollar
deposits in the London interbank market.




          “Business Trade Secrets” as defined in Section 4.31.




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          “Capital Lease” means, as applied to any Person, any lease of (or other arrangement conveying
the right to use) any property (whether real, personal or mixed) by that Person as lessee (or the
equivalent) that, in conformity with GAAP, is or should be accounted for as a capital lease on the
balance sheet of that Person.




          “Capital Stock” means any and all shares, interests, participations or other equivalents
(however designated) of capital stock of a corporation, any and all equivalent ownership interests
in a Person (other than a corporation), including partnership interests and membership interests,
and any and all warrants, rights or options to purchase or other arrangements or rights to acquire
any of the foregoing.




          “Cash” means money, currency or a credit balance in any demand or Deposit Account.




          “Cash Equivalents” means, as at any date of determination, (i) marketable securities (a)
issued or directly and unconditionally guaranteed as to interest and principal by the United States
Government, or (b) issued by any agency of the United States the obligations of which are backed by
the full faith and credit of the United States, in each case maturing within one year after such
date; (ii) marketable direct obligations issued by any state of the United States of America or any
political subdivision of any such state or any public instrumentality thereof, in each case
maturing within one year after such date and having, at the time of the acquisition thereof, a
rating of at least A-1 from S&P or at least P-1 from Moody’s; (iii) commercial paper maturing no
more than one year from the date of creation thereof and having, at the time of the acquisition
thereof, a rating of at least A-1 from S&P or at least P-1 from Moody’s; (iv) certificates of
deposit or bankers’ acceptances maturing within one year after such date and issued or accepted by
any Lender or by any commercial bank organized under the laws of the United States of America or
any state thereof or the District of Columbia that (a) is at least "adequately capitalized” (as
defined in the regulations of its primary Federal banking regulator), and (b) has Tier 1 capital
(as defined in such regulations) of not less than $100,000,000; and (v) shares of any money market
mutual fund that (a) has at least ninety five percent (95%) of its assets invested continuously in
the types of investments referred to in clauses (i) and (ii) above, (b) has net assets of not less
than $500,000,000, and (c) has the highest rating obtainable from either S&P or Moody’s.




          “Certificate Regarding Non-Bank Status” means a certificate substantially in the form of
Exhibit F.




          “Change of Control” means, at any time, (i) any Person or "group” (within the meaning of Rules
13d-3 and 13d-5 under the Exchange Act) (a) shall have acquired, directly or indirectly, beneficial
or of record ownership of twenty-five percent (25.0%) or more on a fully diluted basis of the
voting and/or economic interest in the outstanding Capital Stock of Company or (b) shall have
obtained the power (whether or not exercised) to elect a majority of the members of the board of
directors (or similar governing body) of Company; or (ii) Company shall cease to beneficially own
and control one hundred percent (100%) on a fully diluted basis of the economic and voting interest
in the outstanding Capital Stock of each other Credit Party (except to the extent expressly
permitted pursuant to Section 6.8 hereof); or (iii) the majority of the seats (other than vacant
seats) on the board of directors (or similar governing body) of



-7-









 






Company cease to be occupied by Persons who either (a) were members of the board of directors
of Company on the Closing Date, or (b) were nominated for election or appointed by the board of
directors of Company, a majority of whom were directors on the Closing Date or whose election or
nomination for election was previously approved by a majority of such directors; or (iv) any event,
transaction or occurrence as a result of which James Ching Hua Li shall for any reason cease to be
actively engaged in the day-to-day management of Company in the role he serves on the Closing Date,
unless an interim or permanent successor reasonably acceptable to Administrative Agent and the
Requisite Lenders is appointed within a period of time deemed reasonable by Administrative Agent.




          “Class” means (i) with respect to Lenders, each of the following classes of Lenders: (a)
Lenders having Tranche A Term Loan Exposure, (b) Lenders having Tranche A-1 Term Loan Exposure, and
(c) Lenders having Revolving Exposure, and (ii) with respect to Loans, each of the following
classes of Loans: (a) Tranche A Term Loans, (b) Tranche A-1 Term Loans, and (c) Revolving Loans.




          “Closing Date” means the date on which the Term Loans are made.




          “Closing Date Certificate” means a Closing Date Certificate substantially in the form of
Exhibit G-1.




          “Collateral” means, collectively, all of the property and assets and all interests therein and
proceeds thereof now owned or hereafter acquired by any Person upon which a Lien is granted or
purported to be granted by such Person pursuant to the Collateral Documents or any other Credit
Documents as security for the Obligations.




          “Collateral Access Agreement” means any Landlord Collateral Access Agreements, Bailee Letters,
or any other agreement, acknowledgement or certificate in form and substance reasonably
satisfactory to the Agents and the Borrowing Base Agent pursuant to which a mortgagee or lessor of
real property on which Collateral is stored or otherwise located, or a warehouseman, processor,
converter facility or other bailee of Inventory or other property owned by the Company or any of
its Subsidiaries, acknowledges the Liens under the Collateral Documents and subordinates or waives
any Liens held by such Person on such property and, in the case of any such agreement with a
mortgagee or lessor, permits the Collateral Agent reasonable access to and the use of such real
property during the continuance of an Event of Default to assemble, complete and sell any
Collateral stored or otherwise located thereon.




          “Collateral Agent” as defined in the preamble hereto.




          “Collateral Documents” means the Pledge and Security Agreement, the Mortgages, the Hong Kong
Fixed and Floating Security Document, the Hong Kong Share Charge, any Collateral Access Agreements,
the Collateral Questionnaire and all other acknowledgments, certificates, control agreements,
financing statements (and non-U.S. equivalents thereof), instruments, documents and agreements
delivered by any Credit Party pursuant to this Agreement or any of the other Credit Documents in
order to grant to Collateral Agent, for the benefit of Secured Parties, a Lien on any real,
personal or mixed property of that



-8-









 






Credit Party as security for the Obligations, in each case, as such Collateral Documents may
be amended or otherwise modified from time to time.




          “Collateral Questionnaire” means a perfection certificate in form satisfactory to Collateral
Agent that provides information with respect to the personal or mixed property of each Credit
Party.




          “Commitment” means any Revolving Commitment, Tranche A Term Loan Commitment or Tranche A-1
Term Loan Commitment.




          “Communications” as defined in Section 9.9(a).




          “Company” as defined in the preamble hereto.




          “Company Obligations” means all liabilities and obligations of every nature of each Company
and its Subsidiaries (other than SPV) from time to time owed to the Agents (including former
Agents), Borrowing Base Agent, the Lenders or any of them or Issuing Bank, under any Credit
Document, in connection with the Tranche A Term Loans, the Revolving Commitments, and the Revolving
Loans, whether for principal, interest (including interest which, but for the filing of a petition
in bankruptcy with respect to such Credit Party, would have accrued on any such Company Obligation,
whether or not a claim is allowed against such Credit Party for such interest in the related
bankruptcy proceeding), reimbursement of amounts drawn under Letters of Credit or payments made by
Administrative Agent or any Lender under or in connection with any L/C Funding Support, fees,
expenses, indemnification or otherwise and whether primary, secondary, direct, indirect,
contingent, fixed or otherwise (including obligations of performance).




          “Compliance Certificate” means a Compliance Certificate substantially in the form of Exhibit
C.




          “Consolidated Adjusted EBITDA” means, for any period, an amount determined for Company and its
Subsidiaries on a consolidated basis equal to:





	 	(i)	 	the sum, without duplication, of the amounts for such period
of:






	 	(a)	 	Consolidated Net Income, plus
	 
	 	(b)	 	Consolidated Interest Expense, plus
	 
	 	(c)	 	provisions for taxes based on income,
plus
	 
	 	(d)	 	total depreciation expense, plus
	 
	 	(e)	 	total amortization expense, plus
	 
	 	(f)	 	other non-Cash items reducing Consolidated Net
Income (excluding any such non-Cash item to the extent that it
represents an accrual or reserve for potential Cash items in any future
period





-9-









 











	 	 	 	or amortization of a prepaid Cash item that was paid in a prior
period), minus






	 	(ii)	 	the sum, without duplication of the amounts for such period of:






	 	(a)	 	other non-Cash items increasing Consolidated
Net Income for such period (excluding any such non-Cash item to the
extent it represents the reversal of an accrual or reserve for
potential Cash item in any prior period), plus
	 
	 	(b)	 	interest income, plus
	 
	 	(c)	 	extraordinary gains and other income;





          “Consolidated Capital Expenditures” means, for any period, the aggregate of all expenditures
of Company and its Subsidiaries during such period determined on a consolidated basis that, in
accordance with GAAP, are or should be included in "purchase of property and equipment (including
the portion of liabilities under any Capital Lease that is or should be capitalized in accordance
with GAAP) or which should otherwise be capitalized” or similar items reflected in the consolidated
statement of cash flows of Company and its Subsidiaries.




          “Consolidated Cash Interest Expense” means, for any period, Consolidated Interest Expense for
such period, excluding any amount not payable in Cash.




          “Consolidated Current Assets” means, as at any date of determination, the total assets of
Company and its Subsidiaries on a consolidated basis that may properly be classified as current
assets in conformity with GAAP after deducting any appropriate and adequate reserves therefor in
conformity with GAAP, excluding Cash and Cash Equivalents.




          “Consolidated Current Liabilities” means, as at any date of determination, the total
liabilities of Company and its Subsidiaries on a consolidated basis that may properly be classified
as current liabilities in conformity with GAAP, excluding (i) the current portion of long term
debt, and (ii) outstanding Revolving Loans.




          “Consolidated Excess Cash Flow” means, for any period, an amount (if positive) determined for
Company and its Subsidiaries on a consolidated basis equal to:





	 	(i)	 	the sum, without duplication, of the amounts for such period
of:






	 	(a)	 	Consolidated Adjusted EBITDA, plus
	 
	 	(b)	 	interest income, plus
	 
	 	(c)	 	other non-ordinary course income, plus
	 
	 	(d)	 	the Consolidated Working Capital Adjustment,
minus




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	 	(ii)	 	the sum, without duplication, of the amounts for such period
of:






	 	(a)	 	voluntary and scheduled repayments of
Consolidated Total Debt (excluding repayments of any revolving credit
indebtedness except to the extent the obligation of the relevant
lenders to make such revolving credit available is permanently reduced
or terminated in connection with such repayments, to the extent of such
reduction or termination), plus
	 
	 	(b)	 	Consolidated Capital Expenditures, plus
	 
	 	(c)	 	Consolidated Cash Interest Expense,
plus
	 
	 	(d)	 	provisions for current taxes based on income of
Company and its Subsidiaries and payable in cash with respect to such
period.





          “Consolidated Fixed Charges” means, for any period, the sum, without duplication, of the
amounts determined for Company and its Subsidiaries on a consolidated basis equal to:





	 	(i)	 	Consolidated Cash Interest Expense, plus
	 
	 	(ii)	 	scheduled payments of principal on Consolidated Total Debt,
plus
	 
	 	(iii)	 	Consolidated Capital Expenditures, plus
	 
	 	(iv)	 	dividends or distributions paid in cash, plus
	 
	 	(v)	 	the portion of taxes based on income actually paid in cash and
provisions for cash income taxes, as each of the foregoing is made during such
period in conformity with GAAP.





          “Consolidated Interest Expense” means, for any period, total interest expense (including that
portion attributable to Capital Leases in accordance with GAAP and capitalized interest) of Company
and its Subsidiaries on a consolidated basis with respect to all outstanding Consolidated Total
Debt, including all commissions, discounts and other fees and charges owed with respect to letters
of credit and net costs under Interest Rate Agreements.




          “Consolidated Liquidity” means, for any period, an amount determined for Company and its
Subsidiaries on a consolidated basis equal to the sum of (i) unrestricted cash-on-hand of the
Credit Parties, held in a deposit account in the United States, which is subject to a control
agreement in favor of the Collateral Agent, which is free and clear of all Liens (other than Liens
in favor of the Collateral Agent securing the Obligations), plus (ii) Availability at such
time.




-11-









 








          “Consolidated Net Income” means, for any period:





	 	(i)	 	the net income (or loss) of Company and its Subsidiaries on a
consolidated basis for such period taken as a single accounting period
determined in conformity with GAAP, minus
	 
	 	(ii)	 	the sum of:






	 	(a)	 	the income (or loss) of any Person (other than
a Subsidiary of Company) in which any other Person (other than Company
or any of its Subsidiaries) has a joint interest, except to the extent
of the amount of dividends or other distributions actually paid to
Company or any of its Subsidiaries by such Person during such period,
plus
	 
	 	(b)	 	the income (or loss) of any Person accrued
prior to the date it becomes a Subsidiary of Company or is merged into
or consolidated with Company or any of its Subsidiaries or that
Person’s assets are acquired by Company or any of its Subsidiaries,
plus
	 
	 	(c)	 	the income of any Subsidiary of Company to the
extent that the declaration or payment of dividends or similar
distributions by that Subsidiary of that income is not at the time
permitted by operation of the terms of its charter or any agreement,
instrument, judgment, decree, order, statute, rule or governmental
regulation applicable to that Subsidiary, plus
	 
	 	(d)	 	any after-tax gains or losses attributable to
Asset Sales or returned surplus assets of any Pension Plan, plus
	 
	 	(e)	 	(to the extent not included in clauses (a)
through (d) above) any net extraordinary gains or net extraordinary
losses.





          “Consolidated Total Debt” means, without duplication, as at any date of determination: the
aggregate amount of all Indebtedness of Company and its Subsidiaries determined on a consolidated
basis in accordance with GAAP.




          “Consolidated Working Capital” means, as at any date of determination, the excess or
deficiency of Consolidated Current Assets over Consolidated Current Liabilities.




          “Consolidated Working Capital Adjustment” means, for any period on a consolidated basis, the
amount (which may be a negative number) by which Consolidated Working Capital as of the beginning
of such period exceeds (or is less than) Consolidated Working Capital as of the end of such period.




-12-









 








          “Contractor” means a manufacturer and/or processor engaged by SPV to assemble Panel Inventory
and other components into LCD Televisions on behalf of SPV, which Contractor shall be reasonably
acceptable to the Agents.




          “Contractor Agreement” means an agreement between SPV and a Contractor, pursuant to which the
Contractor (and each of its subcontractors) disclaims ownership, subject to the terms specified
therein, in the Panel Inventory, the components and the completed LCD Televisions. Each Contractor
Agreement in effect on the Closing Date is specified on Schedule 1.1(b) hereto.




          “Contractor Documents” means each of the documents and agreements specified on Schedule 1.1(d)
entered into between a Contractor and a Credit Party.




          “Contractual Obligation” means, as applied to any Person, any provision of any Security issued
by that Person or of any indenture, mortgage, deed of trust, contract, undertaking, agreement or
other instrument to which that Person is a party or by which it or any of its properties is bound
or to which it or any of its properties is subject.




          “Contributing Guarantors” as defined in Section 7.2.




          “Conversion/Continuation Date” means the effective date of a continuation or conversion, as
the case may be, as set forth in the applicable Conversion/Continuation Notice.




          “Conversion/Continuation Notice” means a Conversion/Continuation Notice substantially in the
form of Exhibit A-2.




          “Counterpart Agreement” means a Counterpart Agreement substantially in the form of Exhibit H
delivered by a Credit Party pursuant to Section 5.10.




          “Credit Date” means the date of a Credit Extension.




          “Credit Document” means any of this Agreement, the Notes, if any, the Collateral Documents,
the Fee Letter, the Intercompany Subordination Agreement, the Flow of Funds Agreement, any
Contractor Agreement, any Panel Deposit Agreement, any Letter of Credit Applications, the Factoring
Assignment Agreement, all documents, instruments and agreements relating to L/C Funding Support,
including any reimbursement agreements or other documents or certificates executed by Company in
favor of Issuing Bank relating to Letters of Credit, and all other certificates, documents,
instruments or agreements executed and delivered by a Credit Party for the benefit of any Agent,
Borrowing Base Agent, Issuing Bank or any Lender in connection herewith.




          “Credit Extension” means the making, conversion or continuance of a Loan or the issuance,
amendment, extension or renewal of a Letter of Credit.




          “Credit Party” means each Borrower and each Guarantor.




          “Currency Agreement” means any foreign exchange contract, currency swap agreement, futures
contract, option contract, synthetic or other similar agreement or arrangement,



-13-









 






each of which is for the purpose of hedging the foreign currency risk associated with
Company’s and its Subsidiaries’ operations and not for speculative purposes.




          “Default” means a condition or event that, after notice or lapse of time or both, would
constitute an Event of Default.




          “Default Excess” means, with respect to any Defaulting Lender, the excess, if any, of such
Defaulting Lender’s Pro Rata Share of the aggregate outstanding principal amount of Loans of all
Lenders (calculated as if all Defaulting Lenders (other than such Defaulting Lender) had funded all
of their respective Defaulted Loans) over the aggregate outstanding principal amount of all Loans
of such Defaulting Lender.




          “Default Period” means, with respect to any Defaulting Lender, the period commencing on the
date of the applicable Funding Default and ending on the earliest of the following dates: (i) the
date on which all Commitments are cancelled or terminated and/or the Obligations are declared or
become immediately due and payable, (ii) the date on which (a) the Default Excess with respect to
such Defaulting Lender shall have been reduced to zero (whether by the funding by such Defaulting
Lender of any Defaulted Loans of such Defaulting Lender or by the non-pro rata application of any
voluntary or mandatory prepayments of the Loans in accordance with the terms of Section 2.12 or
Section 2.13 or by a combination thereof), and (b) such Defaulting Lender shall have delivered to
each Applicable Borrower and Administrative Agent a written reaffirmation of its intention to honor
its obligations hereunder with respect to its Commitments, and (iii) the date on which the Credit
Parties, Administrative Agent and Requisite Lenders waive all Funding Defaults of such Defaulting
Lender in writing.




          “Defaulted Loan” as defined in Section 2.21.




          “Defaulting Lender” as defined in Section 2.21.




          “Default Rate” means any interest payable pursuant to Section 2.9.




          “Deposit Account” means a demand, time, savings, passbook or like account with a bank, savings
and loan association, credit union or like organization, other than an account evidenced by a
negotiable certificate of deposit.




          “Dilution” means a percentage, based upon the experience during a period determined by the
Administrative Agent or the Borrowing Base Agent in its reasonable business judgment, that is the
result of dividing the dollar amount of (a) bad debt write-downs, discounts, warranty claims,
advertising allowances, credits, or other dilutive items with respect to the Credit Parties’
Accounts during such period, by (b) the Credit Parties’ billings with respect to Accounts during
such period.




          “Dilution Reserve” means, as of any date of determination, an amount sufficient to reduce the
advance rate against Eligible Accounts or Eligible Foreign Accounts, as applicable, by one
percentage point for each percentage point by which Dilution is in excess of 5%.




          "Disqualified Capital Stock” means Capital Stock that, by its terms (or by the terms of any
security into which it is convertible or for which it is exchangeable), or upon the



-14-









 






happening of any event, (a) matures (excluding any maturity as the result of an optional
redemption by the issuer thereof) or is mandatorily redeemable, pursuant to a sinking fund
obligation or otherwise, or is redeemable at the option of the holder thereof, in whole or in part,
on or prior to the first anniversary of the Final Maturity Date, (b) is convertible into or
exchangeable (unless at the sole option of the issuer thereof) for (i) debt securities or (ii) any
Capital Stock referred to in clause (a) above, in each case at any time prior to the first
anniversary of the Final Maturity Date, (c) contains any repurchase obligation that may come into
effect prior to payment in full of all Obligations, (d) requires cash dividend payments prior to
one year after the Final Maturity Date, (e) does not provide that any claims of any holder of such
Capital Stock may have against the Company or any of its Subsidiaries (including any claims as
judgment creditor or other creditor in respect of claims for the breach of any covenant contained
therein) shall be fully subordinated (including a full remedy bar) to the Obligations in a manner
satisfactory to Administrative Agent, (f) provides the holders of such Capital Stock thereof with
any rights to receive any cash upon the occurrence of a change of control prior to the first
anniversary date on which the Obligations have been irrevocably paid in full, unless the rights to
receive such cash are contingent upon the Obligations being irrevocably paid in full, or (g) is
prohibited by the terms of this Agreement. As used in this definition “Final Maturity Date” means
October 26, 2012.




          “Dollars” and the sign “$” mean the lawful money of the United States of America.




          “Domestic Subsidiary” means any Subsidiary organized under the laws of the United States of
America, any State thereof or the District of Columbia.




          “Eligible Account” means an Account which has been included in a Borrowing Base Certificate as
an Eligible Account to determine the Borrowing Base, and as to which Account, unless otherwise
approved by Administrative Agent and the Borrowing Base Agent in their reasonable discretion, the
following is true and accurate as of the time it was utilized to determine the Borrowing Base:





          (i) such Account arose in the ordinary course of the business of a Credit Party out of
either (a) a bona fide sale of Inventory by a Credit Party, and in such case such Inventory
has in fact been shipped to the appropriate Account Debtor or the sale has otherwise been
consummated in accordance with such order, or (b) services performed by a Credit Party under
an enforceable contract (written or oral), and in such case such services have in fact been
performed for the appropriate Account Debtor in accordance with such contract;




          (ii) such Account represents a legally valid and enforceable claim which is due and
owing to a Credit Party by such Account Debtor and for at least such amount as is
represented by Company and SPV to Borrowing Base Agent in the applicable Borrowing Base
Certificate;




          (iii) such Account is evidenced by an invoice dated not later than the date of shipment
of the related Inventory or the performance of the services, or other evidence of billing
reasonably acceptable to Administrative Agent and Borrowing Base Agent giving



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rise to such Account is owing less than one hundred twenty (120) days after the date of
the invoice corresponding to such Account and less than sixty (60) days after the due date
of the invoice corresponding to such Account;




          (iv) the unpaid balance of such Account as represented by Company and SPV to Borrowing
Base Agent in the applicable Borrowing Base Certificate is not subject to any defense,
counterclaim, setoff, contra account, credit, allowance or adjustment actually known to a
Credit Party or asserted by the Account Debtor because of returned, rejected, repossessed,
disputed, inferior or damaged Inventory or services, or for any other reason;




          (v) the transactions resulting in the creation of such Account comply with all
applicable local, state and federal laws and regulations of the jurisdiction in which such
Account was created where the failure to comply therewith could reasonably be expected to
impair the collectibility of such Account;




          (vi) such Accounts do not represent a right to receive progress payments and other
advance billings that are due prior to the completion of performance by a Credit Party of
the subject contract for goods or services;




          (vii) such Account does not arise in a transaction wherein goods are placed on
consignment or are sold pursuant to a guaranteed sale, a sale or return, a sale on approval,
a bill and hold, or any other terms by reason of which the payment by the Account Debtor may
be conditional;




          (viii) such Account is lawfully owned by a Credit Party free and clear of any Lien
other than the Lien in favor of Collateral Agent for the benefit of Agents, Borrowing Base
Agent and Lenders granted pursuant to the Collateral Documents and otherwise continues to be
in full conformity with all representations and warranties made by a Credit Party to Agents,
Borrowing Base Agent and Lenders with respect thereto in the Credit Documents;




          (ix) such Account is not owing by an Account Debtor who, as of the date of
determination, has failed to pay fifty percent (50%) or more of the aggregate amount of its
Accounts owing to a Credit Party within less than one hundred twenty (120) days after the
date of the invoices corresponding to such Accounts and less than sixty (60) days after the
due dates of the invoices corresponding to such Accounts;




          (x) such Account is unconditionally payable in Dollars and is not represented by any
note, trade acceptance, draft or other negotiable instrument or by any chattel paper, except
any such as has been endorsed and delivered by a Credit Party pursuant to or in accordance
with the Collateral Documents or this Agreement on or prior to such Account’s inclusion in
any applicable Borrowing Base Certificate;




          (xi) no Credit Party has received, with respect to such Account, any notice of the
death of any general partner of the related Account Debtor, nor of the dissolution,
liquidation, termination of existence, insolvency, business failure, creditors meeting of
the related Account Debtor for the purposes of obtaining any financial concession or



-16-









 






accommodation, appointment of a receiver or trustee for any part of the property of,
assignment for the benefit of creditors by, or the filing of a petition in bankruptcy or the
commencement of any proceeding under any bankruptcy or insolvency laws by or against, such
Account Debtor;




          (xii) the Account Debtor on such Account is not:



                    (a) an Affiliate of Company or any of its Subsidiaries;



                    (b) the United States of America or any department, agency, or instrumentality thereof, or any
other foreign or domestic governmental entity, in each case, unless such Credit Party has complied
with the provisions of the Federal Assignment of Claims Act (or the non-U.S. equivalent thereof, as
applicable);



                    (c) a Person who is formed under the laws of a jurisdiction outside of the United States,
unless such Account is secured by a letter of credit or a guaranty issued by a bank reasonably
acceptable to Administrative Agent and Borrowing Base Agent and in form and substance acceptable to
Administrative Agent and Borrowing Base Agent, in the exercise of their reasonable credit judgment;



                    (d) an individual; or



                    (e) a supplier to or creditor of a Credit Party, unless such Account Debtor has executed a
no-offset letter satisfactory to Administrative Agent and Borrowing Base Agent;




          (xiii) such Account is not subject to collection by an outside claims processor;




          (xiv) the otherwise Eligible Accounts of any Account Debtor do not exceed 20% of all
Eligible Accounts, provided, that such percentage as applied to a particular Account
Debtor and its Affiliates is subject to reduction by Administrative Agent and Borrowing Base
Agent in their reasonable business judgment if the creditworthiness of such Account Debtor
deteriorates; and




          (xv) such Account is not owing by an Account Debtor the continued collectability of
whose obligations Administrative Agent and Borrowing Base Agent shall have determined,
acting in the exercise of its reasonable credit judgment, have become materially impaired
and Administrative Agent or Borrowing Base Agent shall have notified Company are thus not
deemed to constitute Eligible Accounts; and




          (xvi) such Account satisfies any other eligibility criteria established from time to
time by Administrative Agent and the Borrowing Base Agent, all in accordance with ordinary
and customary lending standards, as reasonably determined by them.



               Any Account which is at any time an Eligible Account but which fails to meet any of the
foregoing requirements at a subsequent date of determination, shall immediately cease to be an
Eligible Account for so long as it does not meet any of the foregoing requirements;
provided, that such requirements may be revised from time to time by Administrative Agent
or



-17-









 




the Borrowing Base Agent in the exercise of its reasonable business judgment to address the
results of any audits performed by Agents or Borrowing Base Agent after the Closing Date. Eligible
Accounts shall be calculated net of customer deposits and unapplied cash remitted to any Credit
Party.




          Notwithstanding the foregoing, Accounts of a Credit Party shall be deemed to be Eligible
Accounts if such Accounts are generated in the ordinary course of business of such Credit Party and
are purchased and credit approved and continue to be credit approved, in each case by Factor, under
the Factoring Agreement and are and continue to be subject to the Factoring Assignment Agreement.




          “Eligible Assignee” means (i) in the case of the Revolving Loans or Revolving Commitments, (a)
any Lender with Revolving Exposure or any Affiliate (other than a natural person) of any Lender
with Revolving Exposure, (b) a commercial bank organized under the laws of the United States, or
any state thereof, and having total assets or net worth in excess of $500,000,000, (c) a commercial
bank organized under the laws of any other country which is a member of the Organization for
Economic Cooperation and Development or a political subdivision of any such country and which has
total assets or net worth in excess of $500,000,000, provided that such bank is acting
through a branch or agency located in the United States, and (d) a finance company, insurance
company, or other financial institution or fund that is engaged in making, purchasing, or otherwise
investing in commercial loans in the ordinary course of its business and having (together with its
Affiliates) total assets or net worth in excess of $500,000,000, (ii) in the case of the Term
Loans, (a) any Lender, any Affiliate of any Lender and any Related Fund (any two or more Related
Funds being treated as a single Eligible Assignee for all purposes hereof), and (b) any commercial
bank, insurance company, investment or mutual fund or other entity that is an "accredited investor”
(as defined in Regulation D under the Securities Act) and which extends credit or buys loans as one
of its businesses, and (iii) any other Person (other than a natural Person) approved by
Administrative Agent; provided, that neither Company nor any Affiliate of Company shall, in
any event, be an Eligible Assignee.




          “Eligible Foreign Accounts” means an Account (a) that satisfies all of the criteria for an
Eligible Account set forth in the definition thereof (other than clauses (iii), (ix), (xii)(c) and
(xv) thereof), (b) for which the Account Debtor is SCHOT, and (c) that is evidenced by an invoice
dated not later than the date of shipment of the related Inventory or the performance of the
services, or other evidence of billing reasonably acceptable to Administrative Agent and Borrowing
Base Agent giving rise to such Account and is owing less than one hundred eighty (180) days after
the date of the invoice corresponding to such Account and less than sixty (60) days after the due
date of the invoice corresponding to such Account; provided, that if SCHOT has failed to
pay fifty percent (50%) or more of the aggregate amount of its Accounts owing to a Credit Party
within one hundred eighty (180) days after the date of the invoice corresponding to such Accounts
or within sixty (60) days since the original due date of the invoices corresponding to such
Accounts, no Accounts owing to the Credit Parties from SCHOT shall be deemed to be Eligible Foreign
Accounts.




          “Eligible Inventory” means all Inventory consisting of all finished goods, raw materials and
RMA Inventory of any Credit Party which meets each of the following requirements:




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          (i) it is lawfully owned by a Credit Party free and clear of any Lien other than the
Lien in favor of Collateral Agent for the benefit of Agents, Borrowing Base Agent and
Lenders granted pursuant to the Collateral Documents and otherwise continues to be in full
conformity with all representations and warranties made by the Credit Parties to Agents,
Borrowing Base Agent and Lenders with respect thereto in the Credit Documents;




          (ii) it was acquired in the ordinary course of business of a Credit Party, does not
represent damaged, obsolete or unsaleable goods and may be lawfully sold;




          (iii) it is in the possession and control of a Credit Party and it is stored and held
in facilities owned by a Credit Party or, if such facilities are not so owned, Collateral
Agent is in possession of a Collateral Access Agreement;




          (iv) it is not Inventory produced in violation of the Fair Labor Standards Act and
subject to the “hot goods” provisions contained in Title 29 U.S.C. §215;




          (v) it is located in the United States or in any territory or possession of the United
States that has adopted Article 9 of the UCC;




          (vi) it is not “in transit” or held or acquired by a Credit Party on consignment other
than Inventory (A) in transit between one United States location of a Credit Party to
another United States location of a Credit Party or (B) in transit to a Person party to a
Collateral Access Agreement;




          (vii) it is not tooling;




          (viii) no Account has been created or issued with respect to it;




          (ix) no document of title has been created or issued with respect to it, other than
documents of title with respect thereto that are consigned and delivered to Collateral Agent
at a location within the United States;




          (x) it does not consist of goods that are slow moving (which for purposes of this
Agreement, shall mean goods that will not be sold within three (3) months based on the last
six (6) months of sales of such good, but shall exclude any new goods that have been
available for sale for less than three (3) months as determined in Administrative Agent’s
and Borrowing Base Agent’s reasonable discretion), supplies or goods that constitute spare
parts, packaging and shipping materials, bill and hold goods or defective goods;




          (xi) it is not work in process;




          (xii) it is not capitalized expenses constituting Inventory; and




          (xiii) Administrative Agent or Borrowing Base Agent shall not have determined in its
reasonable credit judgment, that such Inventory is no longer saleable to its intended
purchasers.



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          In addition, the following shall not be deemed to be Eligible Inventory:





	 	(A)	 	returned units under repair;
	 
	 	(B)	 	parts for repairs;
	 
	 	(C)	 	marketing and testing units;
	 
	 	(D)	 	damaged goods under dispute;
	 
	 	(E)	 	lower of cost or market reserve; and
	 
	 	(F)	 	Kolin rebate Inventory adjustments.





          Inventory which is at any time Eligible Inventory but which fails to meet any of the foregoing
requirements at a subsequent date of determination shall forthwith cease to be Eligible Inventory
for so long as it does not meet any of the foregoing requirements; provided, that such
requirements may be revised from time to time by Administrative Agent or Borrowing Base Agent in
the exercise of its reasonable business judgment to address the results of any appraisals or audits
performed by Agents or Borrowing Base Agent after the Closing Date.




          “Eligible Panel Inventory” means all Panel Inventory of SPV which meets each of the following
requirements:





          (i) it is lawfully owned by SPV free and clear of all Liens and otherwise continues to
be in full conformity with all representations and warranties made by the Credit Parties to
Agents, Borrowing Base Agent and Lenders with respect thereto in the Credit Documents;




          (ii) it was acquired in the ordinary course of business of SPV, does not represent
damaged, obsolete or unsaleable goods and may be lawfully sold;




          (iii) it is in the possession and control of, or “in transit” to, a Contractor that has
executed a Contractor Agreement in favor of the SPV, or “in transit” to a Credit Party or a
customer of a Credit Party;




          (iv) it is not produced in violation of the Fair Labor Standards Act or subject to the
“hot goods” provisions contained in Title 29 U.S.C. §215;




          (v) no Account has been created or issued with respect to it;




          (vi) no document of title has been created or issued with respect to it, other than
documents of title with respect thereto that are (x) issued in the name of a Contractor that
has executed a Contractor Agreement in favor of the SPV, so long as such Panel Inventory is
held outside the United States, or (y) issued in the name of SPV and consigned and delivered
to Collateral Agent at a location within the United States; and



-20-









 






          (vii) Administrative Agent or Borrowing Base Agent shall not have determined in its
reasonable credit judgment, that such Panel Inventory is no longer saleable to its intended
purchasers.



          Panel Inventory which is at any time Eligible Panel Inventory but which fails to meet any of
the foregoing requirements at a subsequent date of determination shall forthwith cease to be
Eligible Panel Inventory for so long as it does not meet any of the foregoing requirements;
provided, that such requirements may be revised from time to time by Administrative Agent
or Borrowing Base Agent in the exercise of its reasonable business judgment to address the results
of any appraisals or audits performed by Agents or Borrowing Base Agent after the Closing Date.




          “Employee Benefit Plan” means any "employee benefit plan” as defined in Section 3(3) of ERISA
which is or was sponsored, maintained or contributed to by, or required to be contributed by,
Company, any of its Subsidiaries or any of their respective ERISA Affiliates.




          “Environmental Claim” means any investigation, notice, notice of violation, claim, action,
suit, proceeding, demand, abatement order complaint, summons, citation, direction, penalty, fine,
investigation or other order, directive or proceeding (conditional or otherwise), by any
Governmental Authority or any other Person, arising (i) pursuant to or in connection with any
actual or alleged violation of any Environmental Law; (ii) in connection with any Hazardous
Material or any actual or alleged Hazardous Materials Activity; or (iii) in connection with any
actual or alleged damage, injury, threat or harm to health, safety, natural resources or the
environment.




          “Environmental Laws” means any and all current or future foreign or domestic, federal, state
or local (or any subdivision of any of them), statutes, ordinances, orders, rules, by-laws,
regulations, judgments, guidelines, policies, Governmental Authorizations, or any other
requirements of Governmental Authorities imposing liability or establishing standards of conduct
for or relating to (i) public health and safety, protection of the environment or other
environmental matters, including those relating to any Hazardous Materials Activity; (ii) the
generation, use, storage, transportation or disposal of Hazardous Materials; or (iii) occupational
safety and health, industrial hygiene, land use or the protection of human, plant or animal health
or welfare.




          “ERISA” means the Employee Retirement Income Security Act of 1974, as amended from time to
time, and any successor thereto, in each case together with the regulations thereunder.




          “ERISA Affiliate” means, as applied to any Person, (i) any corporation which is a member of a
controlled group of corporations within the meaning of Section 414(b) of the Internal Revenue Code
of which that Person is a member; (ii) any trade or business (whether or not incorporated) which is
a member of a group of trades or businesses under common control within the meaning of Section
414(c) of the Internal Revenue Code of which that Person is a member; and (iii) any member of an
affiliated service group within the meaning of Section 414(m) or (o) of the Internal Revenue Code
of which that Person, any corporation described in clause (i) above or any trade or business
described in clause (ii) above is a member. Any former



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ERISA Affiliate of Company or any of its Subsidiaries shall continue to be considered an ERISA
Affiliate of Company or any such Subsidiary within the meaning of this definition with respect to
the period such entity was an ERISA Affiliate of Company or such Subsidiary and with respect to
liabilities arising after such period for which Company or such Subsidiary could be liable under
the Internal Revenue Code or ERISA.




          “ERISA Event” means (i) a "reportable event” within the meaning of Section 4043 of ERISA and
the regulations issued thereunder with respect to any Pension Plan or Multiemployer Plan (excluding
those for which the provision for 30-day notice to the PBGC has been waived by regulation); (ii)
the failure to meet the minimum funding standard of Section 412 of the Internal Revenue Code with
respect to any Pension Plan (whether or not waived in accordance with Section 412(d) of the
Internal Revenue Code) or the failure to make by its due date a required installment under Section
412(m) of the Internal Revenue Code with respect to any Pension Plan or the failure to make any
required contribution to a Multiemployer Plan; (iii) notice of intent to terminate a Pension Plan
in a distress termination described in Section 4041(c) of ERISA; (iv) the withdrawal by Company,
any of its Subsidiaries or any of their respective ERISA Affiliates from any Pension Plan with two
or more non-related contributing sponsors or the termination of any such Pension Plan resulting in
liability to Company, any of its Subsidiaries or any of their respective ERISA Affiliates pursuant
to Section 4063 or 4064 of ERISA; (v) the institution by the PBGC of proceedings to terminate any
Pension Plan, or the occurrence of any event or condition which might reasonably constitute grounds
under ERISA for the termination of, or the appointment of a trustee to administer, any Pension
Plan; (vi) the imposition of liability on Company, any of its Subsidiaries or any of their
respective ERISA Affiliates pursuant to Section 4062(e) or 4069 of ERISA or by reason of the
application of Section 4212(c) of ERISA; (vii) the withdrawal of Company, any of its Subsidiaries
or any of their respective ERISA Affiliates in a complete or partial withdrawal (within the meaning
of Sections 4203 and 4205 of ERISA) from any Multiemployer Plan if there is any liability or
potential liability therefor, or the receipt by Company, any of its Subsidiaries or any of their
respective ERISA Affiliates of notice from any Multiemployer Plan that it is in reorganization or
insolvency pursuant to Section 4241 or 4245 of ERISA, or that it intends to terminate or has
terminated under Section 4041A or 4042 of ERISA; (viii) the occurrence of an act or omission which
could give rise to the imposition on Company, any of its Subsidiaries or any of their respective
ERISA Affiliates of fines, penalties, taxes or related charges under Chapter 43 of the Internal
Revenue Code or under Section 409, Section 502(c), (i) or (l), or Section 4071 of ERISA in respect
of any Employee Benefit Plan; (ix) the assertion of a material claim (other than routine claims for
benefits) against any Employee Benefit Plan or the assets thereof, or against Company, any of its
Subsidiaries or any of their respective ERISA Affiliates in connection with any Employee Benefit
Plan; (x) receipt from the Internal Revenue Service of notice of the failure of any Pension Plan
(or any other Employee Benefit Plan intended to be qualified under Section 401(a) of the Internal
Revenue Code) to qualify under Section 401(a) of the Internal Revenue Code, or the failure of any
trust forming part of any Pension Plan to qualify for exemption from taxation under Section 501(a)
of the Internal Revenue Code; (xi) the imposition of a Lien pursuant to Section 401(a)(29) or
412(n) of the Internal Revenue Code or pursuant to ERISA with respect to any Pension Plan, (xii)
the imposition of any material liability under Title IV of ERISA, other than the PBGC premiums due
but not delinquent under Section 4007 of ERISA, upon
 Company, any of its Subsidiaries or any of
their respective ERISA Affiliates; (xiii) any equivalent event, action, condition, proceeding or
otherwise under similar laws of any other



-22-









 






jurisdiction, or (xiv) any other event or condition with respect to a Pension Plan or
Multiemployer Plan that could reasonably be expected to result in material liability of Company or
any of its Subsidiaries.




          “Event of Default” means each of the conditions or events set forth in Section 8.1.




          “Exchange Act” means the Securities Exchange Act of 1934, as amended from time to time, and
any successor statute.




          “Existing Credit Documents” means (i) the Amended and Restated Factoring Agreement, dated as
of November 22, 2006, between The CIT Group/Commercial Services, Inc. and Syntax Corporation, and
(ii) the Amended and Restated Business Loan and Security Agreement, dated as of December 13, 2006
and as amended February 21, 2007, by and among Preferred Bank, Company, Syntax Groups Corporation,
and Syntax Corporation, in each case, together with all documents executed in connection therewith,
and in each case, as amended, restated, supplemented or otherwise modified from time to time prior
to the Closing Date.




          “Existing Indebtedness” means Indebtedness and other obligations outstanding under the
Existing Credit Documents.




          “Extraordinary Receipts” means any cash received by or paid to or for the account of Company
or any of its Subsidiaries not in the ordinary course of business, including any foreign, United
States, state or local tax refunds, pension plan reversions, judgments, proceeds of settlements or
other consideration of any kind in connection with any cause of action, condemnation awards (and
payments in lieu thereof), indemnity payments and any purchase price adjustment received in
connection with any purchase agreement and proceeds of insurance (excluding, however, any Net Asset
Sale Proceeds which are subject to Section 2.13(a) and any Net Insurance/Condemnation Proceeds
which are subject to Section 2.13(b)).




          “Facility” means any real property (including all buildings, fixtures or other improvements
located thereon) now, hereafter or heretofore owned, leased, operated or used by Company or any of
its Subsidiaries or any of their respective predecessors or Affiliates.




          “Factor” means The CIT Group/Commercial Services, Inc., in its capacity as factor under the
Factoring Agreement.




          “Factoring Agreement” means the Amended and Restated Factoring Agreement, dated as of November
22, 2006, by and between Syntax Corporation and the Factor, and as later supplemented to add
Company and Syntax Group Corporation, as parties thereto, as amended by the amendment dated as of
the date hereof and described in Section 3.1 and as otherwise amended or modified from time to time
in accordance with the terms of this Agreement.




          “Factoring Assignment Agreement” means the Assignment and Intercreditor Agreement, dated as of
the Closing Date, between the Factor and the Borrowing Base Agent, as the same may be amended or
otherwise modified from time to time.




          “Fair Share Contribution Amount” as defined in Section 7.2.




-23-









 








          “Fair Share” as defined in Section 7.2.




          “Federal Funds Effective Rate” means for any day, the rate per annum (expressed, as a decimal,
rounded upwards, if necessary, to the next higher one-hundredth of one percent (1/100 of 1%)) equal
to the weighted average of the rates on overnight Federal funds transactions with members of the
Federal Reserve System arranged by Federal funds brokers on such day, as published by the Federal
Reserve Bank of New York on the Business Day next succeeding such day; provided, that, (i)
if such day is not a Business Day, the Federal Funds Effective Rate for such day shall be such rate
on such transactions on the next preceding Business Day as so published on the next succeeding
Business Day, and (ii) if no such rate is so published on such next succeeding Business Day, the
Federal Funds Effective Rate for such day shall be the average of the quotations for the day of
such transactions received by Administrative Agent from three Federal funds brokers of recognized
standing selected by it.




          “Fee Letter” means the letter agreement dated the date hereof between Company and
Administrative Agent.




          “Financial Officer Certification” means, with respect to the financial statements for which
such certification is required, the certification of the chief financial officer of Company that
such financial statements fairly present, in all material respects, the financial condition of
Company and its Subsidiaries as at the dates indicated and the results of their operations and
their cash flows for the periods indicated, in each case in conformity with GAAP applied on a
consistent basis, subject, in the case of interim financial statements, to changes resulting from
normal audit and year-end adjustments.




          “Financial Plan” as defined in Section 5.1(i).




          “First Priority” means, with respect to any Lien purported to be created in any Collateral
pursuant to any Collateral Document, that such Lien is a valid, legal and enforceable Lien having
priority over all other Liens to which such Collateral is subject, other than any Permitted Lien
that is permitted to have priority over the Lien of the Collateral Agent.




          “Fiscal Quarter” means a fiscal quarter of any Fiscal Year.




          “Fiscal Year” means the fiscal year of Company and its Subsidiaries ending on June 30th of
each calendar year.




          “Fixed Charge Coverage Ratio” means the ratio as of the last day of any Fiscal Quarter of (a)
Consolidated Adjusted EBITDA for the four-Fiscal Quarter period then ending, taken as a single
accounting period to (b) Consolidated Fixed Charges for such four-Fiscal Quarter period
(provided, that (i) for the four Fiscal Quarter period ending December 31, 2007,
Consolidated Fixed Charges shall be the Consolidated Fixed Charges for the Fiscal Quarter ending
December 31, 2007 multiplied by four, (ii) for the four Fiscal Quarter period ending March 31,
2008, Consolidated Fixed Charges shall be the Consolidated Fixed Charges for the two Fiscal Quarter
period ending March 31, 2008 multiplied by two, and (iii) for the four Fiscal Quarter period ending
June 30, 2008, Consolidated Fixed Charges shall be the Consolidated Fixed Charges for the three
Fiscal Quarter period ending June 30, 2008 multiplied by 4/3).




-24-









 








          “Flood Hazard Property” means any Real Estate Asset subject to a mortgage in favor of
Collateral Agent, for the benefit of the Secured Parties, and located in an area designated by the
Federal Emergency Management Agency as having special flood or mud slide hazards.




          “Flow of Funds Agreement” means that certain Flow of Funds Agreement, dated as of the Closing
Date, duly executed by each Credit Party, each Agent, Borrowing Base Agent, each Lender and any
other person party thereto, in form and substance reasonably satisfactory to the Agents, in
connection with the disbursement of Loan proceeds in accordance with Section 2.5 of this Agreement.




          “Foreign Currency” as defined in Section 10.26.




          “Foreign Currency Conversion Date” as defined in Section 10.26.




          “Foreign Subsidiary” means any Subsidiary that is not a Domestic Subsidiary.




          “Funding Default” as defined in Section 2.21.




          “Funding Guarantor” as defined in Section 7.2.




          “Funding Notice” means a notice substantially in the form of Exhibit A-1.




          “GAAP” means, subject to the limitations on the application thereof set forth in Section 1.2,
United States generally accepted accounting principles in effect as of the date of determination
thereof.




          “Governmental Acts” means any act or omission, whether rightful or wrongful, of any present or
future de jure or de facto government or Governmental Authority.




          “Governmental Authority” means any Federal, state, municipal, national or other government,
governmental department, commission, board, bureau, court, agency or instrumentality or political
subdivision thereof or any entity or officer exercising executive, legislative, judicial,
regulatory or administrative functions of or pertaining to any government or any court, in each
case whether associated with a state of the United States, the United States, or a foreign entity
or government.




          “Governmental Authorization” means any permit, license, authorization, plan, directive,
consent order or consent decree of or from any Governmental Authority.




          “Granting Lender” as defined in Section 10.7.




          “Grantor” as defined in the Pledge and Security Agreement.




          “Guarantee” means, with respect to any Person, any obligation, contingent or otherwise, of
such Person guaranteeing or having the economic effect of guaranteeing any Indebtedness or other
obligation of any other Person in any manner, whether directly or indirectly, and including any
obligation of the guarantor, direct or indirect, that is (a) an obligation of such Person the
primary purpose or intent of which is to provide assurance to an



-25-









 






obligee that the obligation of the obligor thereof will be paid or discharged, or any
agreement relating thereto will be complied with, or the holders thereof will be protected (in
whole or in part) against loss in respect thereof; or (b) a liability of such Person for an
obligation of another through any agreement (contingent or otherwise) (i) to purchase, repurchase
or otherwise acquire such obligation or any security therefor, or to provide funds for the payment
or discharge of such obligation (whether in the form of loans, advances, stock purchases, capital
contributions or otherwise) or (ii) to maintain the solvency or any balance sheet item, level of
income or financial condition of another if, in the case of any agreement described under
subclauses (i) or (ii) of this clause (b), the primary purpose or intent thereof is as described in
clause (a) above.




          “Guaranteed Obligations” as defined in Section 7.1.




          “Guarantor” means (i) with respect to the Company Obligations, each Domestic Subsidiary of
Company (other than SPV), and (ii) with respect to the SPV Obligations, Company and each Domestic
Subsidiary of Company (other than the SPV).




          “Guaranty” means the guaranty of each Guarantor set forth in Section 7.




          “Hazardous Materials” shall include, without regard to amount and/or concentration (a) any
element, compound, or chemical that is defined, listed or otherwise classified as a contaminant,
pollutant, toxic pollutant, toxic or hazardous substances, extremely hazardous substance or
chemical, hazardous waste, medical waste, biohazardous or infectious waste, special waste, or solid
waste under Environmental Laws; (b) petroleum, petroleum-based or petroleum-derived products; (c)
polychlorinated biphenyls; (d) any substance exhibiting a hazardous waste characteristic under
Environmental Law including but not limited to corrosivity, ignitibility, toxicity or reactivity as
well as any radioactive or explosive materials; and (e) any asbestos-containing materials.




          “Hazardous Materials Activity” means any past, current, proposed or threatened activity, event
or occurrence involving any Hazardous Materials, including the use, manufacture, possession,
storage, holding, presence, existence, location, Release, threatened Release, discharge, placement,
generation, transportation, processing, construction, treatment, abatement, removal, remediation,
disposal, disposition or handling of any Hazardous Materials, and any Remedial Action with respect
to any of the foregoing.




          “Highest Lawful Rate” means the maximum lawful interest rate, if any, that at any time or from
time to time may be contracted for, charged, or received under the laws applicable to any Lender
which are presently in effect or, to the extent allowed by law, under such applicable laws which
may hereafter be in effect and which allow a higher maximum nonusurious interest rate than
applicable laws now allow.




          “Historical Financial Statements” means as of the Closing Date, (i) the audited financial
statements of Company and its Subsidiaries, for the Fiscal Year ended June 30, 2007, consisting of
balance sheets and the related consolidated statements of income, stockholders’ equity and cash
flows for such Fiscal Year, and (ii) for the interim period from July 1, 2007 to the Closing Date,
internally prepared, unaudited financial statements of Company and its Subsidiaries, consisting of
a balance sheet and the related consolidated statements of income,



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stockholders’ equity and cash flows for each quarterly period completed prior to forty-six
(46) days before the Closing Date and for each monthly period completed prior to thirty-one (31)
days prior to the Closing Date, in the case of clauses (i) and (ii), certified by the chief
financial officer of Company that such financial statements fairly present, in all material
respects, the financial condition of Company and its Subsidiaries as at the dates indicated and the
results of their operations and their cash flows for the periods indicated, subject, if applicable,
to changes resulting from audit and normal year end adjustments.




          “Hong Kong Fixed and Floating Security Document” means the Hong Kong law fixed and floating
security document to be granted by Company in favor of Collateral Agent for the benefit of the
Secured Parties, substantially in the form of Exhibit I-2.




          “Hong Kong Share Charge” means the Hong Kong law share charge to be granted by Vivitar
Corporation in favor of the Collateral Agent for the benefit of the Secured Parties, substantially
in the form of Exhibit I-3.




          “Increased Cost Lender” as defined in Section 2.22.




          “Indebtedness,” as applied to any Person, means, without duplication, (i) all indebtedness for
borrowed money; (ii) that portion of obligations with respect to Capital Leases that is properly
classified as a liability on a balance sheet in conformity with GAAP; (iii) all obligations of such
Person evidenced by notes, bonds or similar instruments or upon which interest payments are
customarily paid and all obligations in respect of drafts accepted representing extensions of
credit whether or not representing obligations for borrowed money; (iv) any obligation owed for all
or any part of the deferred purchase price of property or services (excluding trade payables
incurred in the ordinary course of business having a term of less than four (4) months that are not
overdue by more than sixty (60) days) which purchase price is (a) due more than four (4) months
from the date of incurrence of the obligation in respect thereof or (b) evidenced by a note or
similar written instrument; (v) all obligations created or arising under any conditional sale or
other title retention agreement with respect to property acquired by such person, (vi) all
indebtedness secured by any Lien on any property or asset owned or held by that Person regardless
of whether the indebtedness secured thereby shall have been assumed by that Person or is
nonrecourse to the credit of that Person; (vii) the face amount of any letter of credit or letter
of guaranty issued, bankers’ acceptances facilities, surety bond and similar credit transactions
for the account of that Person or as to which that Person is otherwise liable for reimbursement of
drawings or drafts; (viii) the direct or indirect guaranty, endorsement (otherwise than for
collection or deposit in the ordinary course of business), co-making, discounting with recourse or
sale with recourse by such Person of the obligation of another; (ix) any obligation of such Person
the primary purpose or intent of which is to provide assurance to an obligee that the obligation of
the obligor thereof will be paid or discharged, or any agreement relating thereto will be complied
with, or the holders thereof will be protected (in whole or in part) against loss in respect
thereof; (x) any liability of such Person for an obligation of another through any agreement
(contingent or otherwise) (a) to purchase, repurchase or otherwise acquire such obligation or any
security therefor, or to provide funds for the payment or discharge of such obligation (whether in
the form of loans, advances, stock purchases, capital contributions or otherwise) or (b) to
maintain the solvency or any balance sheet item, level of income or financial condition of another
if, in the case of any agreement described under




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subclauses (a) or (b) of this clause (x), the primary purpose or intent thereof is as described in clause (ix)
above; (xi) all obligations of such Person in respect of any exchange traded or over the counter
derivative transaction, including any Interest Rate Agreement and Currency Agreement, whether
entered into for hedging or speculative purposes; (xii) all obligations of such Person, contingent
or otherwise, to purchase, redeem, retire or otherwise acquire for value any Capital Stock of such
Person and (xii) all Attributable Debt of such Person. The Indebtedness of any Person shall
include the Indebtedness of any partnership or joint venture in which such Person is a general
partner or joint venturer, unless such Indebtedness is expressly non-recourse to such Person.




          “Indemnified Liabilities” means, collectively, any and all liabilities, obligations, losses,
damages (including natural resource damages), penalties, claims (including Environmental Claims),
costs (including the costs of any investigation, study, sampling, testing, abatement, cleanup,
removal, remediation or other response action necessary to remove, remediate, clean up or abate any
Hazardous Materials Activity), expenses and disbursements of any kind or nature whatsoever
(including the reasonable fees and disbursements of counsel for Indemnitees in connection with any
investigative, administrative or judicial proceeding commenced or threatened by any Person, whether
or not any such Indemnitee shall be designated as a party or a potential party thereto, and any
fees or expenses incurred by Indemnitees in enforcing this indemnity), whether direct, indirect or
consequential and whether based on any Federal, state or foreign laws, statutes, rules or
regulations (including securities and commercial laws, statutes, rules or regulations and
Environmental Laws), on common law or equitable cause or on contract or otherwise, that may be
imposed on, incurred by, or asserted against any such Indemnitee, in any manner relating to or
arising out of (i) this Agreement or the other Credit Documents or the transactions contemplated
hereby or thereby (including the Lenders’ agreement to make Credit Extensions or the use or
intended use of the proceeds thereof, or any enforcement of any of the Credit Documents (including
any sale of, collection from, or other realization upon any of the Collateral or the enforcement of
the Guaranty)); (ii) the statements contained in the commitment letter or proposal letter delivered
by any Lender to Company with respect to the transactions contemplated by this Agreement; or (iii)
any Environmental Claim against or any Hazardous Materials Activity relating to or arising from,
directly or indirectly, any past or present activity, operation, land ownership, or practice of
Company or any of its Subsidiaries.




          “Indemnitee” as defined in Section 10.3(a).




          “Indemnitee Agent Party” as defined in Section 9.6.




          “Insolvency Proceeding” means any proceeding commenced by or against any Person under any
provision of the Bankruptcy Code or under any other national, state, provincial or federal
bankruptcy or insolvency law, assignments for the benefit of creditors, formal or informal
moratoria, compositions, extensions generally with creditors, or proceedings seeking
reorganization, arrangement, or other similar relief.




          “Intercompany Subordination Agreement” means that certain Intercompany Subordination
Agreement, dated as of the date hereof, made by the Credit Parties and their



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Subsidiaries in favor
of the Collateral Agent for the benefit of the Agents, Borrowing Base Agent and the Lenders.




          “Interest Payment Date” means with respect to (i) any Base Rate Loan, (a) the last day of each
month, commencing on the first such date to occur after the Closing Date, and (b) the final
maturity date of such Loan; and (ii) any LIBOR Rate Loan, the last day of each Interest Period
applicable to such Loan.




          “Interest Period” means, in connection with a LIBOR Rate Loan, an interest period of one, two
or three months, as selected by the Applicable Borrower in the applicable Funding Notice or
Conversion/Continuation Notice, (i) initially, commencing on the Credit Date or
Conversion/Continuation Date thereof, as the case may be; and (ii) thereafter, commencing on the
day on which the immediately preceding Interest Period expires; provided, that, (a) if an
Interest Period would otherwise expire on a day that is not a Business Day, such Interest Period
shall expire on the next succeeding Business Day unless no further Business Day occurs in such
month, in which case such Interest Period shall expire on the immediately preceding Business Day;
(b) any Interest Period that begins on the last Business Day of a calendar month (or on a day for
which there is no numerically corresponding day in the calendar month at the end of such Interest
Period) shall, subject to clauses (c) and (d) of this definition, end on the last Business Day of a
calendar month; (c) no Interest Period with respect to any portion of any Term Loans shall extend
beyond the Term Loan Maturity Date; and (d) no Interest Period with respect to any portion of the
Revolving Loans shall extend beyond the Revolving Commitment Termination Date.




          “Interest Rate Agreement” means any interest rate swap agreement, interest rate cap agreement,
interest rate collar agreement, interest rate hedging agreement or other similar agreement or
arrangement, each of which is (i) for the purpose of hedging the interest rate exposure associated
with Company’s and its Subsidiaries’ operations, (ii) approved by Administrative Agent, and (iii)
not for speculative purposes.




          “Interest Rate Determination Date” means, with respect to any Interest Period, the date that
is two Business Days prior to the first day of such Interest Period.




          “Internal Control Event” means a material weakness in, or fraud that involves management of
Company, which fraud has a material effect on Company’s internal controls over, public reporting,
in each case as described in the Securities Laws.




          “Internal Revenue Code” means the Internal Revenue Code of 1986, as amended to the date hereof
and from time to time hereafter, and any successor statute.




          “Inventory” means, with respect to any Person, all of such Person’s now owned and hereafter
existing or acquired goods, wherever located, which (a) are held by such Person for sale; or (b)
consist of raw materials, work in process, finished goods or materials used or consumed in its
business.




          “Investment” means (i) any direct or indirect purchase or other acquisition by Company or any
of its Subsidiaries of, or of a beneficial interest in, any of the Securities of any other Person;
(ii) any direct or indirect redemption, retirement, purchase or other acquisition for




-29-









 







value, by any
Subsidiary of Company from any Person, of any Capital Stock of such Person; (iii) any direct or
indirect loan, advance or capital contributions by Company or any of its
Subsidiaries to any other Person, including all Indebtedness and Accounts from that other
Person that are not current assets or did not arise from sales to that other Person in the ordinary
course of business; and (iv) any direct or indirect Guarantee of any obligations of any other
Person. The amount of any Investment shall be the original cost of such Investment plus
the cost of all additions thereto, without any adjustments for increases or decreases in value, or
write-ups, write-downs or write-offs with respect to such Investment.




          “Issuance Notice” means an Issuance Notice substantially in the form of Exhibit A-3.




          “Issuing Bank” means any financial institution designated by the Administrative Agent to issue
Letters of Credit, in each case together with its permitted successors and assigns in such
capacity, and the term “Issuing Bank” in each such instance, shall mean the Issuing Bank with
respect to such Letter of Credit.




          “Joint Venture” means a joint venture, partnership or other similar arrangement, whether in
corporate, partnership or other legal form; provided, that, in no event shall any corporate
Subsidiary of any Person be considered to be a Joint Venture to which such Person is a party.




          “Landlord Collateral Access Agreement” means a Landlord Consent and Subordination Agreement
substantially in the form of Exhibit K with such amendments or modifications as may be approved by
Collateral Agent.




          “Landlord Consent and Estoppel” means, with respect to any Leasehold Property, a letter,
certificate or other instrument in writing from the lessor under the related lease, pursuant to
which, among other things, the landlord consents to the granting of a Mortgage on such Leasehold
Property by the Credit Party tenant, such Landlord Consent and Estoppel to be in form and substance
acceptable to Collateral Agent in its reasonable discretion, but in any event, sufficient for
Collateral Agent to obtain a Title Policy with respect to such Mortgage.




          “LCD Television” means a television that utilizes liquid crystal display technology.




          “L/C Funding Support” means any reimbursement arrangement, guaranty, cash collateral
arrangement or other credit support provided by Administrative Agent to an Issuing Bank in respect
of any Letter of Credit issued for the benefit of Company.




          “Lead Arranger” as defined in the preamble hereto.




          “Leasehold Property” means any leasehold interest of any Credit Party as lessee under any
lease of real property, other than any such leasehold interest designated from time to time by
Collateral Agent in its reasonable discretion as not being required to be included in the
Collateral.



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          “Lender” means each lender listed on the signature pages hereto as a Lender, and any other
Person that becomes a party hereto pursuant to an Assignment Agreement other than any such Person
that ceases to be a party hereto pursuant to an Assignment Agreement.




          “Letter of Credit” means a standby letter of credit issued or to be issued by and Issuing Bank
for the benefit of the Company.




          “Letter of Credit Application” as defined in Section 2.3(a).




          “Letter of Credit Sublimit” means the lesser of (i) $10,000,000, and (ii) Availability at such
time.




          “Letter of Credit Usage” means, as at any date of determination and without duplication, the
sum of (i) the maximum aggregate amount which is, or at any time thereafter may become, available
for drawing under all Letters of Credit then outstanding, and (ii) the aggregate amount of all
drawings under Letters of Credit honored by Issuing Bank the repayment of which shall not, at such
time, have been funded with a drawing of a Revolving Loan.




          “Leverage Ratio” means the ratio as of the last day of any Fiscal Quarter of:





	 	(i)	 	the greater of (A) Consolidated Total Debt as of such day and
(B) the average daily Consolidated Total Debt for the four-quarter Fiscal
Quarter ending on such date, to
	 
	 	(ii)	 	Consolidated Adjusted EBITDA for the four-Fiscal Quarter period
ending on such date.





          “LIBOR Rate Loan” means a Loan bearing interest at a rate determined by reference to the
Adjusted LIBOR Rate.




          “Lien” means (i) any lien, mortgage, pledge, assignment, hypothec, deed of trust, security
interest, charge or encumbrance of any kind (including any agreement to give any of the foregoing,
any conditional sale or other title retention agreement, and any lease in the nature thereof) and
any option, trust or other preferential arrangement having the practical effect of any of the
foregoing, and (ii) in the case of Securities, any purchase option, call or similar right of a
third party with respect to such Securities.




          “Loan” means a Tranche A Term Loan, a Tranche A-1 Term Loan, and a Revolving Loan.




          “Margin Stock” as defined in Regulation U of the Board of Governors of the Federal Reserve
System as in effect from time to time.




          “Material Adverse Effect” means a material adverse effect on and/or material adverse
developments with respect to (i) the business operations, properties, assets, condition (financial
or otherwise) or prospects of Company and its Subsidiaries taken as a whole; (ii) a significant
portion of the industry or business segment in which Company or its Subsidiaries operate or rely
upon if such effect or development is reasonably likely to have a material adverse



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effect on
Company and its Subsidiaries taken as a whole; (iii) the ability of any Credit Party to fully and
timely perform its Obligations; (iv) the legality, validity, binding effect, or enforceability
against a Credit Party of a Credit Document to which it is a party; (v) the Collateral or the
Collateral Agent’s Liens (on behalf of itself and the Secured Parties) on the
Collateral or the priority of such Liens; or (vi) the rights, remedies and benefits available
to, or conferred upon, any Agent, Borrowing Base Agent, and any Lender or any Secured Party under
any Credit Document.




          “Material Contract” means, collectively, (a) any contract or other arrangement to which
Company or any of its Subsidiaries is a party (other than the Credit Documents) for which breach,
nonperformance, cancellation or failure to renew could reasonably be expected to have a Material
Adverse Effect and (b) any agreement or instrument evidencing or governing (i) Indebtedness, in an
aggregate principal amount of $1,000,000 or more, (ii) each contract or agreement to which Company
or any of its Subsidiaries is a party involving aggregate consideration payable to or by Company or
such Subsidiary during any calendar year of $1,000,000 or more (other than purchase orders in the
ordinary course of the business of Company or such Subsidiary and other than contracts that by
their terms may be terminated by Company or such Subsidiary in the ordinary course of its business
upon less than 60 days’ notice without penalty or premium), (iii) all Contractor Documents, and
(iv) any agreement that the Company files with the SEC as a “Material Contract”.




          “Material Improvements” means the buildings, improvements, structures and fixtures now or
subsequently located on the Real Estate Assets that are used in connection with the business of
Company or any of its Subsidiaries and are material to the operation thereof.




          “Material Real Estate Asset” means (i) (a) any fee-owned Real Estate Asset having a fair
market value in excess of $500,000 as of any date of determination, and (b) all Leasehold
Properties other than those with respect to which the aggregate payments under the term of the
lease are less than $2,500,000 per annum, or (ii) any Real Estate Asset that the Requisite Lenders
have determined is material to the business, operations, properties, assets, condition (financial
or otherwise) or prospects of Company or any Subsidiary thereof, including any listed on Schedule
1.1(a).




          “Moody’s” means Moody’s Investor Services, Inc.




          “Mortgage” means a Mortgage executed by a Credit Party in favor of the Collateral Agent, for
the benefit of the Secured Parties, in form and substance satisfactory to the Collateral Agent, as
the same may be amended, supplemented or otherwise modified from time to time.




          “Multiemployer Plan” means any Employee Benefit Plan which is a "multiemployer plan” as
defined in Section 3(37) of ERISA or such equivalent plan under non-U.S. law.




          “NAIC” means The National Association of Insurance Commissioners, and any successor thereto.



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          “Narrative Report” means, with respect to the financial statements for which such narrative
report is required, a narrative report describing the operations of Company and its Subsidiaries in
the form prepared for presentation to senior management thereof for the applicable month, Fiscal
Quarter or Fiscal Year and for the period from the beginning of the then current Fiscal Year to the
end of such period to which such financial statements relate with
comparison to and variances from the immediately preceding period and budget;
provided, that so long as Company files the applicable 10-Q and 10-K reports for the
applicable reporting period, such reports shall be deemed to be the “Narrative Report” for such
period.




          “Net Amount of Eligible Accounts” means (i) in the case of Accounts not purchased by Factor
under the Factoring Agreement, the aggregate unpaid invoice amount of Eligible Accounts less,
without duplication, sales, excise or similar taxes, returns, discounts, chargebacks, claims,
advance payments, credits, rebates and allowances of any nature at any time issued, owing, granted,
outstanding, available or claimed with respect to such Eligible Accounts, and (ii) in the case of
Accounts purchased by Factor under the Factoring Agreement and sums due under the Factoring
Agreement, deductions for factoring charges, discounts, estimated anticipation, chargebacks based
upon disputes and returns, chargebacks of department risk accounts purchased with recourse, and all
other charges, offsets and reserves under the Factoring Agreement.




          “Net Amount of Eligible Foreign Accounts” means the aggregate unpaid invoice amount of
Eligible Foreign Accounts less, without duplication, sales, excise or similar taxes, returns,
discounts, chargebacks, claims, advance payments, credits, rebates and allowances of any nature at
any time issued, owing, granted, outstanding, available or claimed with respect to such Eligible
Foreign Accounts.




          “Net Asset Sale Proceeds” means, with respect to any Asset Sale, an amount equal to: (i) the
sum of Cash payments and Cash Equivalents received by Company or any of its Subsidiaries from such
Asset Sale (including any Cash or Cash Equivalents received by way of deferred payment pursuant to,
or by monetization of, a note receivable or otherwise, but only as and when so received),
minus (ii) any bona fide direct costs incurred in connection with such Asset Sale,
including (a) income or gains taxes paid or payable by the seller as a result of any gain
recognized in connection with such Asset Sale during the tax period the sale occurs (after taking
into account any available tax credits or deductions and any tax-sharing arrangements), (b) payment
of the outstanding principal amount of, premium or penalty, if any, and interest on any
Indebtedness (other than the Loans) that is secured by a Lien on the stock or assets in question
and that is required to be repaid under the terms thereof as a result of such Asset Sale, and (c) a
reasonable reserve for any indemnification payments (fixed or contingent) attributable to seller’s
indemnities and representations and warranties to purchaser in respect of such Asset Sale
undertaken by Company or any of its Subsidiaries in connection with such Asset Sale; provided that
upon release of any such reserve, the amount released shall be considered Net Asset Sale Proceeds).




          “Net Insurance/Condemnation Proceeds” means an amount equal to: (i) any Cash payments or
proceeds received by Company or any of its Subsidiaries (a) under any casualty, business
interruption or "key man” insurance policies in respect of any covered loss thereunder, or (b) as a
result of the taking of any assets of Company or any of its Subsidiaries by



-33-









 






any Person pursuant to
the power of eminent domain, condemnation or otherwise, or pursuant to a sale of any such assets to
a purchaser with such power under threat of such a taking, minus (ii) (a) any actual and
reasonable costs incurred by Company or any of its Subsidiaries in connection with the adjustment
or settlement of any claims of Company or such Subsidiary in respect thereof, and (b) any bona fide
direct costs incurred in connection with any sale of such assets as
referred to in clause (i)(b) of this definition, including income taxes paid or payable as a
result of any gain recognized in connection therewith (after taking into account any available tax
credits or deductions and any tax-sharing arrangements).




          “Net Mark-to-Market Exposure” of a Person means, as of any date of determination, the excess
(if any) of all unrealized losses over all unrealized profits of such Person arising from Rate
Management Transactions. As used in this definition, “unrealized losses” means the fair market
value of the cost to such Person of replacing such Rate Management Transaction as of the date of
determination (assuming the Rate Management Transaction were to be terminated as of that date), and
“unrealized profits” means the fair market value of the gain to such Person of replacing such Rate
Management Transaction as of the date of determination (assuming such Rate Management Transaction
were to be terminated as of that date).




          “Net Orderly Liquidation Value” means, with respect to Eligible Inventory, as of any date of
determination, the net orderly liquidation value thereof, minus deductions for expenses related to
any proposed liquidation of such Eligible Inventory, as determined by an independent third party
appraiser acceptable to the Agents and the Lenders, taking into account the difference in the net
orderly liquidation value between finished goods, raw materials and RMA Inventory.




          “Non-U.S. Lender” as defined in Section 2.19(e).




          “Note” means a Tranche A Term Loan Note, a Tranche A-1 Term Loan Note or a Revolving Loan
Note.




          “Notice” means a Funding Notice, an Issuance Notice, or a Conversion/Continuation Notice.




          “Obligations” means collectively, the Company Obligations and the SPV Obligations.




          “Obligations Currency” as defined in Section 10.26.




          “Obligee Guarantor” as defined in Section 7.7.




          “Operating Lease Obligations” means all obligations for the payment of rent for any real or
personal property under leases or agreements to lease, other than with respect to Capital Leases.




          “Organizational Documents” means (i) with respect to any corporation, its certificate or
articles of incorporation or organization, as amended, and its by laws, as amended, (ii) with
respect to any limited partnership, its certificate of limited partnership, as amended, and



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its
partnership agreement, as amended, (iii) with respect to any general partnership, its partnership
agreement, as amended, (iv) with respect to any limited liability company, its articles of
organization, as amended, and its operating agreement, as amended and (v) with respect to any other
type of entity, its corresponding organizational documents. In the event any term or condition of
this Agreement or any other Credit Document requires any Organizational
Document to be certified by a secretary of state or similar governmental official, the
reference to any such "Organizational Document” shall only be to a document of a type customarily
certified by such governmental official.




          “Other Taxes” means any and all present or future stamp, registration, recording, filing,
transfer, documentary, excise or property Taxes, charges or similar levies arising from any payment
made hereunder or under any of the other Credit Documents or from the execution, delivery or
enforcement of, or otherwise with respect to or in connection with, any Credit Document.




          “Panel Deposit” means a deposit made with a Panel Manufacturer towards the purchase price of
Panel Inventory.




          “Panel Deposit Agreement” means an agreement between SPV and a Panel Manufacturer satisfactory
to the Collateral Agent pursuant to which SPV agrees to make a Panel Deposit with such Panel
Manufacturer for application to the purchase price of Panel Inventory that SPV has ordered from
Panel Manufacturer. Each Panel Deposit Agreement in effect on the Closing Date is specified on
Schedule 1.1(c) hereto.




          “Panel Inventory” means thin-filmed transistor liquid crystal display panels designed for
installation into LCD Televisions; provided, however, that, solely for purposes of the
definition of the term “Eligible Panel Inventory”, the term “Panel Inventory” shall also include,
without duplication, the LCD Televisions manufactured from the panels described above.




          "Panel Manufacturer” means a manufacturer, satisfactory to the Administrative Agent, that
produces Panel Inventory for, among others, SPV.




          “Participant” as defined in Section 10.6(h).




          “Patriot Act” means the Uniting and Strengthening America by Providing Appropriate Tools
Required to Intercept and Obstruct Terrorism (USA Patriot Act of 2001).




          “Payment Office” means (i) with respect to the Borrowing Base Agent, the Borrowing Base
Agent’s office located at 300 South Grand Avenue, 12th Floor, Los Angeles, California 90071 or at
such other office or offices of the Borrowing Base Agent as may be designated in writing from time
to time by the Borrowing Base Agent to the Collateral Agent and the Borrowers and (ii) with respect
to the Administrative Agent, the Administrative Agent’s office located at Two Greenwich Plaza, 1st
Floor, Greenwich, Connecticut 06830 or at such other office or offices of the Administrative Agent
as may be designated in writing from time to time by the Administrative Agent to the Collateral
Agent and the Borrowers.



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          “PBGC” means the Pension Benefit Guaranty Corporation or any successor thereto and any
equivalent entity under non-U.S. law.




          “Pension Plan” means any Employee Benefit Plan, other than a Multiemployer Plan, which is
subject to Section 412 of the Internal Revenue Code or Section 302 of ERISA, and equivalent plans
under non-U.S. law.




          “Permitted Acquisition” means any acquisition by Company or any of its wholly owned
Subsidiaries, whether by purchase, merger or otherwise, of all or substantially all of the assets
of, all of the Capital Stock of, or a business line or unit or a division of, any Person;
provided,




          (a) immediately prior to, and after giving effect thereto, no Default or Event of Default
shall have occurred and be continuing or would result therefrom;




          (b) all transactions in connection therewith shall be consummated, in all material respects,
in accordance with all applicable laws and in conformity with all applicable Governmental
Authorizations;




          (c) in the case of the acquisition of Capital Stock, all of the Capital Stock (except for any
such Securities in the nature of directors’ qualifying shares required pursuant to applicable law)
acquired or otherwise issued by such Person or any newly formed Subsidiary of Company in connection
with such acquisition shall be owned one hundred percent (100%) by Company or a Guarantor
Subsidiary thereof, and Company shall have taken, or caused to be taken, as of the date such Person
becomes a Subsidiary of Company, each of the actions set forth in Sections 5.10 and/or 5.11, as
applicable;




          (d) Company and its Subsidiaries shall be in compliance with the financial covenants set forth
in Section 6.7 on a pro forma basis after giving effect to such acquisition as of the last day of
the Fiscal Quarter most recently ended, (as determined in accordance with Section 6.7 (j));




          (e) Company shall have delivered to Administrative Agent (A) at least 30 Business Days prior
to such proposed acquisition, a Compliance Certificate evidencing compliance with Section 6.7 as
required under clause (iv) above, together with all relevant financial information with respect to
such acquired assets, including the aggregate consideration for such acquisition and any other
information required to demonstrate compliance with Section 6.7;




          (f) any Person or assets or division as acquired in accordance herewith (y) shall be in same
business or lines of business in which Company and/or its Subsidiaries are engaged as of the
Closing Date and (z) shall have generated positive cash flow for the four quarter period most
recently ended prior to the date of such acquisition;




          (g) the acquisition shall have been approved by the board of directors or other governing body
or controlling Person of the Person acquired or the Person from whom such assets or division is
acquired; and



-36-









 







          (h) as of the date of the acquisition, the chief executive officer or the chief financial
officer of Company shall provide a certificate to Administrative Agent and the Lenders certifying
as to the matters set forth in the foregoing clauses and further certifying that the acquisition
shall not have a Material Adverse Effect.




          “Permitted Liens” means each of the Liens permitted pursuant to Section 6.2.




          “Person” means and includes natural persons, corporations, limited partnerships, general
partnerships, limited liability companies, limited liability partnerships, joint stock companies,
Joint Ventures, associations, companies, trusts, banks, trust companies, land trusts, business
trusts or other organizations, whether or not legal entities, and Governmental Authorities.




          “Platform” as defined in Section 9.9(b).




          “Pledge and Security Agreement” means the Pledge and Security Agreement to be executed by each
Borrower and each Guarantor substantially in the form of Exhibit I, as it may be amended,
supplemented or otherwise modified from time to time.




          “Prepayment Date” as defined in Section 2.14(c).




          “Prime Rate” means the rate of interest publicly announced by the Reference Bank in New York,
New York from time to time as its reference rate, base rate or prime rate. The Prime Rate is a
reference rate and does not necessarily represent the lowest or best rate actually charged to any
customer. Any Agent, Borrowing Base Agent or any other Lender may make commercial loans or other
loans at rates of interest at, above or below the Prime Rate.




          “Principal Office” means, for each of Administrative Agent, Issuing Bank and Borrowing Base
Agent, such Person’s "Principal Office” as set forth on Appendix B, or such other office as such
Person may from time to time designate in writing to Company, Administrative Agent and each Lender.




          “Projections” as defined in Section 4.8.




          “Pro Rata Share” means (i) with respect to all payments, computations and other matters
relating to the Tranche A Term Loan of any Lender, the percentage obtained by dividing (a) the
Tranche A Term Loan Exposure of that Lender, by (b) the aggregate Tranche A Term Loan Exposure of
all Lenders; (ii) with respect to all payments, computations and other matters relating to the
Tranche A-1 Term Loan of any Lender, the percentage obtained by dividing (a) the Tranche A-1 Term
Loan Exposure of that Lender, by (b) the aggregate Tranche A-1 Term Loan Exposure of all Lenders;
and (iii) with respect to all payments, computations and other matters relating to the Revolving
Commitment or Revolving Loans of any Lender or any Letters of Credit issued or participations
purchased therein by any Lender, the percentage obtained by dividing (a) the Revolving Exposure of
that Lender, by (b) the aggregate Revolving Exposure of all Lenders. For all other purposes with
respect to each Lender, “Pro Rata Share” means the percentage obtained by dividing (A) an amount
equal to the sum of the Tranche A Term Loan Exposure, the Tranche A-1 Term Loan Exposure and the
Revolving Exposure of that Lender, by



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(B) an amount equal to the sum of the aggregate Tranche A
Term Loan Exposure, the aggregate Tranche A-1 Term Loan Exposure and the aggregate Revolving
Exposure of all Lenders.




          “Rate Management Transaction” means any transaction (including an agreement with respect
thereto) now existing or hereafter entered by any Credit Party which is a rate swap, basis swap,
forward rate transaction, commodity swap, commodity option, equity or equity index swap, equity or
equity index option, bond option, interest rate option, foreign exchange transaction, cap
transaction, floor transaction, collar transaction, forward transaction,
currency swap transaction, cross-currency rate swap transaction, currency option or any other
similar transaction (including any option with respect to any of these transactions) or any
combination thereof, whether linked to one or more interest rates, foreign currencies, commodity
prices, equity prices or other financial measures; provided, that, in order to qualify as a
Rate Management Transaction under this Agreement for any purpose other than the definition of the
term “Indebtedness”, any such transaction shall be entered into for risk management purposes
associated with Company’s and its Subsidiaries’ operations and not for speculative purposes.




          “Real Estate Asset” means, at any time of determination, any interest (fee, leasehold or
otherwise) then owned by any Credit Party in any real property.




          “Record Document” means, with respect to any Leasehold Property, (i) the lease evidencing such
Leasehold Property or a memorandum thereof, executed and acknowledged by the owner of the affected
real property, as lessor, or (ii) if such Leasehold Property was acquired or subleased from the
holder of a Recorded Leasehold Interest, the applicable assignment or sublease document, executed
and acknowledged by such holder, in each case in form sufficient to give such constructive notice
upon recordation and otherwise in form reasonably satisfactory to Collateral Agent.




          “Recorded Leasehold Interest” means a Leasehold Property with respect to which a Record
Document has been recorded in all places necessary or desirable, in Administrative Agent’s
reasonable judgment, to give constructive notice of such Leasehold Property to third-party
purchasers and encumbrances of the affected real property.




          “Reference Bank” means JPMorgan Chase Bank and its successors and any other commercial bank
designated by Administrative Agent to the Applicable Borrower from time to time.




          “Refusal Option” as defined in Section 2.14(c).




          “Regulation D” means Regulation D of the Board of Governors of the Federal Reserve System, as
in effect from time to time.




          “Reimbursement Date” as defined in Section 2.3(d).




          “Related Fund” means, with respect to any Lender that is an investment fund, any other
investment fund that invests in commercial loans and that is managed or advised by the same
investment advisor as such Lender or by an Affiliate of such investment advisor. With respect to
Silver Point, Related Fund shall also include any swap, special purpose vehicles



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purchasing or
acquiring security interests in collateralized loan obligations or any other vehicle through which
Silver Point may leverage its investments from time to time.




          “Release” means any release, spill, emission, leaking, pumping, pouring, injection, escaping,
deposit, disposal, discharge, dispersal, dumping, leaching or migration of any Hazardous Material
into the indoor or outdoor environment (including the abandonment or disposal of any barrels,
containers or other closed receptacles containing any Hazardous Material), including the movement
of any Hazardous Material through the air, soil, surface water or groundwater.




          “Remedial Action” means all actions taken to (i) clean up, remove, remediate, contain, treat,
monitor, assess, evaluate or in any other way address Hazardous Materials in the indoor or outdoor
environment; (ii) prevent or minimize a Release or threatened Release of Hazardous Materials so
they do not migrate or endanger or threaten to endanger public health or welfare or the indoor or
outdoor environment; (iii) perform pre-remedial studies and investigations and post-remedial
operation and maintenance activities; or (iv) any other actions authorized by 42 U.S.C. 9601.




          “Replacement Lender” as defined in Section 2.22.




          “Requisite Class Lenders” means, at any time of determination, but subject to the provisions
of Section 2.21, (i) for the Class of Lenders having Tranche A Term Loan Exposure and/or Tranche
A-1 Term Loan Exposure, Lenders holding more than fifty percent (50%) of sum of the aggregate
Tranche A Term Loan Exposure of all Lenders and the aggregate Tranche A-1 Term Loan Exposure of all
Lenders; and (ii) for the Class of Lenders having Revolving Exposure, Lenders holding more than
fifty percent (50%) of the aggregate Revolving Exposure of all Lenders.




          “Requisite Lenders” means Requisite Class Lenders with respect to each of (i) the Class of
Lenders having Tranche A Term Loan Exposure and/or Tranche A-1 Term Loan Exposure; and (ii) the
Class of Lenders having Revolving Exposure.




          “Restricted Junior Payment” means (i) any dividend or other distribution, direct or indirect,
on account of any shares of any class of stock of Company or any of its Subsidiaries now or
hereafter outstanding, except a dividend payable solely in shares of that class of stock to the
holders of that class; (ii) any redemption, retirement, sinking fund or similar payment, purchase
or other acquisition for value, direct or indirect, of any shares of any class of stock of Company
or any of its Subsidiaries now or hereafter outstanding; (iii) any payment made to retire, or to
obtain the surrender of, any outstanding warrants, options or other rights to acquire shares of any
class of stock of Company or any of its Subsidiaries now or hereafter outstanding; (iv) any
management or similar fees payable to any Affiliate of any Credit Party, and (v) any payment or
prepayment of principal of, premium, if any, or interest on, or redemption, purchase, retirement,
defeasance (including in-substance or legal defeasance), sinking fund or similar payment with
respect to, any subordinated Indebtedness.



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          “Revenues” means, for any period, the gross revenues of Company and its Subsidiaries generated
from sales to Account Debtors located in the United States, on a consolidated basis, calculated in
accordance with GAAP.




          “Revolving Commitment” means the commitment of a Lender to make or otherwise fund any
Revolving Loan and to acquire participations in Letters of Credit and “Revolving Commitments” means
such commitments of all Lenders in the aggregate. The amount of each Lender’s Revolving
Commitment, if any, is set forth on Appendix A-3 or in the applicable Assignment Agreement, subject
to any adjustment or reduction pursuant to the terms and conditions hereof. The aggregate amount
of the Revolving Commitments as of the Closing Date is $100,000,000.




          “Revolving Commitment Period” means the period from the Closing Date to but excluding the
Revolving Commitment Termination Date.




          “Revolving
Commitment Termination Date” means the earliest to occur of (i) October 31, 2007,
if the Term Loans are not made on or before that date;
(ii) October 26, 2012; (iii) the date the
Revolving Commitments are permanently reduced to zero pursuant to Section 2.12(b) or 2.13; and (iv)
the date of the termination of the Revolving Commitments pursuant to Section 8.1.




          “Revolving
Exposure” means, with respect to any Lender as of any date of determination, (i)
prior to the termination of the Revolving Commitments, that Lender’s Revolving Commitment; and (ii)
after the termination of the Revolving Commitments, the sum, without duplication, of (a) the
aggregate outstanding principal amount of the Revolving Loans of that Lender and (b) the aggregate
amount of all participations by that Lender in obligations of Administrative Agent in respect of
any L/C Funding Support.




          “Revolving Loan” means a Loan made by a Lender to Company pursuant to Section 2.2(a) and/or
Section 2.22.




          “Revolving Loan Note” means a promissory note in the form of Exhibit B-3, as it may be
amended, supplemented or otherwise modified from time to time.




          “Revolving Loan Register” as defined in Section 2.6(b).




          "RMA Inventory” means merchandise returned to a Credit Party from customers.




          “S&P” means Standard & Poor’s Ratings Group, a division of The McGraw Hill Corporation.




          “SCHOT” means South China House of Technology Consultants Ltd., a company formed under the
laws of Hong Kong.




          “Secured Parties” means the Agents, Borrowing Base Agent and the Lenders.




          “Securities” means any stock, shares, partnership interests, voting trust certificates,
certificates of interest or participation in any profit-sharing agreement or



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arrangement, options,
warrants, bonds, debentures, notes, or other evidences of indebtedness, secured or unsecured,
convertible, subordinated or otherwise, or in general any instruments commonly known as
"securities” or any certificates of interest, shares or participations in temporary or interim
certificates for the purchase or acquisition of, or any right to subscribe to, purchase or acquire,
any of the foregoing.




          “Securities Act” means the Securities Act of 1933, as amended from time to time, and any
successor statute.




          “Securities Laws” means the Securities Act, the Exchange Act, Sarbanes-Oxley Act of 2002 and
the applicable accounting and auditing principles, rules, standards and practices promulgated,
approved or incorporated by the Securities and Exchange Commission or the
Public Company Accounting Oversight Board, as each of the foregoing may be amended and in
effect on any applicable date hereunder.




          “Silver Point” as defined in the preamble hereto.




          “Solvency Certificate” means a Solvency Certificate of the chief financial officer of Company
substantially in the form of Exhibit G-2.




          “Solvent” means, with respect to any Credit Party, that as of the date of determination, both
(i) (a) the sum of such Credit Party’s debt and liabilities (including contingent liabilities) does
not exceed the present fair saleable value of such Credit Party’s present assets; (b) such Credit
Party’s capital is not unreasonably small in relation to its business as contemplated on the
Closing Date and reflected in the Projections or with respect to any transaction contemplated or
undertaken after the Closing Date; and (c) such Person has not incurred and does not intend to
incur, or believe (nor should it reasonably believe) that it will incur, debts beyond its ability
to pay such debts as they become due (whether at maturity or otherwise); and (ii) such Person is
"solvent” within the meaning given that term and similar terms under applicable laws relating to
fraudulent transfers and conveyances. For purposes of this definition, the amount of any
contingent liability at any time shall be computed as the amount that, in light of all of the facts
and circumstances existing at such time, represents the amount that can reasonably be expected to
become an actual or matured liability (irrespective of whether such contingent liabilities meet the
criteria for accrual under Statement of Financial Accounting Standard No. 5).




          “SPC” as defined in Section 10.7.




          “Specified Account Debtor” means each of SCHOT and Olevia Far East, in each case, so long as,
at the time of determination thereof, such Person owes $10,000,000 or more in the aggregate to any
one or more of the Credit Parties.




          “Specified Party” means each of (i) Taiwan Kolin Co. Ltd., (ii) DigiMedia Technology Co., Ltd.
and (iii) TCV Group.




          “Specified Preferred Bank Indebtedness” as defined in Section 6.1.




          “SPV” as defined in the preamble hereto.



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          “SPV Obligations” means all liabilities and obligations of every nature of SPV from time to
time owed to the Agents (including former Agents), the Lenders or any of them under any Credit
Document in respect of the Tranche A-1 Term Loan, whether for principal, interest (including
interest which, but for the filing of a petition in bankruptcy with respect to SPV, would have
accrued on any such Obligation, whether or not a claim is allowed against SPV for such interest in
the related bankruptcy proceeding), fees, expenses, indemnification or otherwise and whether
primary, secondary, direct, indirect, contingent, fixed or otherwise (including obligations of
performance).




          “Subject Transaction” as defined in Section 6.7.




          “Subsidiary” means, with respect to any Person, any corporation, partnership, limited
liability company, association, joint venture or other business entity of which more than fifty
percent (50%) of the total voting power of shares of stock or other ownership interests entitled
(without regard to the occurrence of any contingency) to vote in the election of the Person or
Persons (whether directors, managers, trustees or other Persons performing similar functions)
having the power to direct or cause the direction of the management and policies thereof is at the
time owned or controlled, directly or indirectly, by that Person or one or more of the other
Subsidiaries of that Person or a combination thereof; provided, that, in determining the
percentage of ownership interests of any Person controlled by another Person, no ownership interest
in the nature of a "qualifying share” of the former Person shall be deemed to be outstanding.




          “Tax” means any present or future tax, levy, impost, duty, assessment, charge, fee, deduction
or withholding of any nature and whatever called, by whomsoever, on whomsoever and wherever
imposed, levied, collected, withheld or assessed; (including, without limitation, real estate
taxes); provided, that “Tax on the overall net income” of a Person shall be construed as a
reference to a tax imposed by the jurisdiction in which that Person is organized or in which that
Person’s applicable principal office (and/or, in the case of a Lender, its lending office) is
located or in which that Person (and/or, in the case of a Lender, its lending office) is deemed to
be doing business (other than a jurisdiction in which such Person is treated as doing business as a
result of its entering into any Credit Document or its participation in the transactions governed
thereby) on all or part of the net income, profits or gains (whether worldwide, or only insofar as
such income, profits or gains are considered to arise in or to relate to a particular jurisdiction,
or otherwise) of that Person (and/or, in the case of a Lender, its applicable lending office).




          “Tax-Related Person” means a Person (including a beneficial owner of an interest in a
pass-through entity) whose income is realized through or determined by reference to an Agent, a
Lender or Participant or any Tax Related Person of any of the foregoing.




          “Term Loan” means a Tranche A Term Loan or a Tranche A-1 Term Loan.




          “Term Loan Commitment” means the Tranche A Term Loan Commitment, or the Tranche A-1 Term Loan
Commitment, and “Term Loan Commitments” means such commitments of all Lenders.



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          “Term Loan Maturity Date” means the Tranche A Term Loan Maturity Date and the Tranche A-1 Term
Loan Maturity Date.




          “Term Loan Register” as defined in Section 2.6(b).




          “Terminated Lender” as defined in Section 2.22.




          “Terrorism Laws” means any of the following (a) Executive Order 13224 issued by the President
of the United States, (b) the Terrorism Sanctions Regulations (Title 31 Part 595 of the U.S. Code
of Federal Regulations), (c) the Terrorism List Governments Sanctions Regulations (Title 31 Part
596 of the U.S. Code of Federal Regulations), (d) the Foreign Terrorist Organizations Sanctions
Regulations (Title 31 Part 597 of the U.S. Code of Federal Regulations),
 (e) the Patriot Act (as it may be subsequently codified), (f) all other present and future
legal requirements of any Governmental Authority addressing, relating to, or attempting to
eliminate, terrorist acts and acts of war and (g) any regulations promulgated pursuant thereto or
pursuant to any legal requirements of any Governmental Authority governing terrorist acts or acts
of war.




          “Title Policy” as defined in Section 5.11.




          “Tooling Expenditures” means expenditures in respect of jigs, dies, fixtures, molds, patterns,
taps, gauges, other equipment and manufacturing aids, all components of these items, and
replacements of these items, used for the production of parts and components of Inventory of the
Credit Parties.




          “Total Utilization of Revolving Commitments” means, as at any date of determination and
without duplication, the sum of (i) the aggregate principal amount of all outstanding Revolving
Loans (other than Revolving Loans made for the purpose of reimbursing Issuing Bank for any amount
drawn, or which may be drawn, under any Letter of Credit, but not yet so applied), and (ii) the
Letter of Credit Usage.




          “Tranche A Term Loan” means a Tranche A Term Loan made by a Lender to Company pursuant to
Section 2.1(a)(i).




          “Tranche A Term Loan Commitment” means the commitment of a Lender to make or otherwise fund a
Tranche A Term Loan and “Tranche A Term Loan Commitments” means such commitments of all Lenders in
the aggregate. The amount of each Lender’s Tranche A Term Loan Commitment, if any, is set forth on
Appendix A 1 or in the applicable Assignment Agreement, subject to any adjustment or reduction
pursuant to the terms and conditions hereof. The aggregate amount of the Tranche A Term Loan
Commitments as of the Closing Date is $110,000,000.




          “Tranche A Term Loan Exposure” means, with respect to any Lender, as of any date of
determination, the outstanding principal amount of the Tranche A Term Loans of such Lender;
provided, that at any time prior to the making of the Tranche A Term Loans, the Tranche A
Term Loan Exposure of any Lender shall be equal to such Lender’s Tranche A Term Loan Commitment.



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          “Tranche
A Term Loan Maturity Date” means the earlier of
(i) October 26, 2012, and
(ii) the date that all Tranche A Term Loans shall become due and payable in full hereunder, whether
by acceleration or otherwise.




          “Tranche A Term Loan Note” means a promissory note in the form of Exhibit B-1, as it may be
amended, restated, supplemented or otherwise modified from time to time.




          “Tranche A-1 Term Loan” means a Tranche A-1 Term Loan made by a Lender to SPV pursuant to
Section 2.1(a)(ii).




          “Tranche A-1 Term Loan Commitment” means the commitment of a Lender to make or otherwise fund
a Tranche A-1 Term Loan and “Tranche A-1 Term Loan Commitments” means such commitments of all
Lenders in the aggregate. The amount of each
Lender’s Tranche A-1 Term Loan Commitment, if any, is set forth on Appendix A 2 or in the
applicable Assignment Agreement, subject to any adjustment or reduction pursuant to the terms and
conditions hereof. The aggregate amount of the Tranche A-1 Term Loan Commitments as of the Closing
Date is $40,000,000.




          “Tranche
A-1 Term Loan Exposure” means, with respect to any Lender, as of any date of
determination, the outstanding principal amount of the Tranche A-1 Term Loans of such Lender;
provided, that at any time prior to the making of the Tranche A-1 Term Loans, the Tranche
A-1 Term Loan Exposure of any Lender shall be equal to such Lender’s Tranche A-1 Term Loan
Commitment.




          “Tranche
A-1 Term Loan Maturity Date” means the earlier of
(i) October 26, 2012, and
(ii) the date that all Tranche A-1 Term Loans shall become due and payable in full hereunder,
whether by acceleration or otherwise.




          “Tranche A-1 Term Loan Note” means a promissory note in the form of Exhibit B-2, as it may be
amended, restated, supplemented or otherwise modified from time to time.




          “Transaction Costs” means the fees, costs and expenses payable by Company or any of Company’s
Subsidiaries on or before the Closing Date in connection with the transactions contemplated by the
Credit Documents.




          “Type of Loan” means with respect to either Term Loans or Revolving Loans, a Base Rate Loan or
a LIBOR Rate Loan.




          “UCC” means the Uniform Commercial Code (or any similar or equivalent legislation) as in
effect in any applicable jurisdiction.




          “Unadjusted LIBOR Rate Component” means that component of the interest costs to the Applicable
Borrower in respect of a LIBOR Rate Loan that is based upon the rate obtained pursuant to clause
(B)(i) of the definition of Adjusted LIBOR Rate.




          “Waivable Prepayment” as defined in Section 2.14(c).



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          1.2 Accounting Terms. Except as otherwise expressly provided herein, all accounting terms not
otherwise defined herein shall have the meanings assigned to them in conformity with GAAP.
Financial statements and other information required to be delivered by Company to Lenders pursuant
to Section 5.1(a), 5.1(b) and 5.1(c) shall be prepared in accordance with GAAP as in effect at the
time of such preparation (and delivered together with the reconciliation statements provided for in
Section 5.1(e), if applicable). Subject to the foregoing, calculations in connection with the
definitions, covenants and other provisions hereof shall utilize accounting principles and policies
in conformity with those used to prepare the Historical Financial Statements.




          1.3 Interpretation, etc. Any of the terms defined herein may, unless the context otherwise requires,
be used in the singular or the plural, depending on the reference. References herein to any
Section, Appendix, Schedule or Exhibit shall be to a Section, an Appendix, a Schedule or an
Exhibit, as the case may be, hereof unless otherwise specifically provided. The
use in any Credit Document of the words “include” or “including,” when following any general
statement, term or matter, shall not be construed to limit such statement, term or matter to the
specific items or matters set forth immediately following such word or to similar items or matters,
whether or not no limiting language (such as “without limitation” or “but not limited to” or words
of similar import) is used with reference thereto, but rather shall be deemed to refer to all other
items or matters that fall within the broadest possible scope of such general statement, term or
matter. The use herein of the word “issue” or “issuance” with respect to any Letter of Credit
shall be deemed to include any amendment, extension renewal or replacement thereof.




     SECTION 2. LOANS AND LETTERS OF CREDIT



          2.1 Term Loans.




          (a) Loan Commitments. Subject to the terms and conditions hereof,




                    (i) each Lender severally agrees to make, on the Closing Date, a Tranche A Term Loan to
Company in an amount equal to such Lender’s Tranche A Term Loan Commitment; and



                    (ii) each Lender severally agrees to make, on the Closing Date, Tranche A-1 Term Loan to SPV
in an amount equal to such Lender’s Tranche A-1 Term Loan Commitment.



          The Applicable Borrowers may make only one borrowing under each of the Tranche A Term Loan
Commitment and the Tranche A-1 Term Loan Commitment which shall be on the Closing Date. The
aggregate principal amount of Term Loans borrowed by the Borrowers on the Closing Date must be
$150,000,000. Any amount borrowed under this Section 2.1(a) and subsequently repaid or prepaid may
not be reborrowed. Subject to Sections 2.11 and 2.12, all amounts owed hereunder with respect to
the Tranche A Term Loans and the Tranche A-1 Term Loans shall be paid in full no later than the
Tranche A Term Loan Maturity Date and the Tranche A-1 Term Loan Maturity Date, respectively. Each
Lender’s Tranche A Term Loan Commitment and Tranche A-1 Term Loan Commitment shall terminate
immediately and without



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further action on the Closing Date after giving effect to the funding of
such Lender’s Tranche A Term Loan Commitment and Tranche A-1 Term Loan Commitment, if any, on such
date.




          (b) Borrowing Mechanics for Term Loans.




                    (i) The Applicable Borrower shall deliver to Administrative Agent a fully executed Funding
Notice no later than 11 a.m. (New York time) on the Closing Date. Promptly upon receipt by
Administrative Agent of such Funding Notice, Administrative Agent shall notify each Lender of the
proposed borrowing. Administrative Agent and Lenders may act without liability upon the basis of
written, telecopied or telephonic notice believed by Administrative Agent in good faith to be from
the Applicable Borrower (or from any Authorized Officer thereof designated in writing purportedly
from the Applicable Borrower to Administrative Agent). Administrative Agent and each Lender shall
be entitled to rely conclusively on any Authorized Officer’s authority to request a Term Loan on
behalf of the Applicable Borrower until Administrative Agent receives written notice to the
contrary.
Administrative Agent and Lenders shall have no duty to verify the authenticity of the
signature appearing on any written Funding Notice.



                    (ii) Each Lender shall make its Tranche A Term Loan and/or Tranche A-1 Term Loan, as the case
may be, available to Administrative Agent not later than 12:00 p.m. (New York City time) on the
Closing Date, by wire transfer of same day funds in Dollars, to Administrative Agent’s Account.
Upon satisfaction or waiver of the conditions precedent specified herein, Administrative Agent
shall make the proceeds of the Term Loans available to the Applicable Borrower on the Closing Date
by causing an amount of same day funds in Dollars equal to the proceeds of all such Loans received
by Administrative Agent from Lenders with a Tranche Term Loan A Commitment or a Tranche A-1 Term
Loan Commitment, as applicable, to be credited to the account designated by the Applicable Borrower
in the Flow of Funds Agreement.



          2.2 Revolving Loans.




          (a) Revolving Commitment. During the Revolving Commitment Period, subject to the terms and
conditions hereof, each Lender severally agrees to make Revolving Loans to Company in an aggregate
amount up to but not exceeding such Lender’s Revolving Commitment; provided, that after giving
effect to the making of any Revolving Loans in no event shall the Total Utilization of Revolving
Commitments exceed Availability at such time. Amounts borrowed pursuant to this Section 2.2(a) may
be repaid and reborrowed during the Revolving Commitment Period. Each Lender’s Revolving
Commitment shall expire on the Revolving Commitment Termination Date and all Revolving Loans and
all other amounts owed hereunder with respect to the Revolving Loans and the Revolving Commitments
shall be paid in full no later than such date.




          (b) Borrowing Mechanics for Revolving Loans.




                    (i) Revolving Loans that are Base Rate Loans shall be made in an aggregate minimum amount of
$1,000,000 and integral multiples of $500,000 in excess of



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that amount, and Revolving Loans that
are LIBOR Rate Loans shall be in an aggregate minimum amount of $1,000,000 and integral multiples
of $500,000 in excess of that amount.




                    (ii) Whenever Company desires that Lenders make Revolving Loans, Company shall deliver to
Borrowing Base Agent a fully executed and delivered Funding Notice no later than 10:00 a.m. (New
York City time) at least three Business Days in advance of the proposed Credit Date in the case of
a LIBOR Rate Loan, and at least one Business Day in advance of the proposed Credit Date in the case
of a Revolving Loan that is a Base Rate Loan. Except as otherwise provided herein, a Funding
Notice for a Revolving Loan that is a LIBOR Rate Loan shall be irrevocable when given, and Company
shall be bound to make a borrowing in accordance therewith. Borrowing Base Agent and Lenders may
act without liability upon the basis of written, telecopied or telephonic notice believed by
Borrowing Base Agent in good faith to be from Company (or from any Authorized Officer thereof
designated in writing purportedly from Company to Borrowing Base Agent). Borrowing Base Agent and
each Lender shall be entitled to rely conclusively on any Authorized Officer’s authority to request
a Revolving Loan on behalf of Company until Borrowing Base Agent receives written notice to the
contrary.
Borrowing Base Agent and Lenders shall have no duty to verify the authenticity of the
signature appearing on any written Funding Notice.



                    (iii) Notice of receipt of each Funding Notice in respect of Revolving Loans, together with
the amount of each Lender’s Pro Rata Share thereof, if any, together with the applicable interest
rate, shall be provided by Borrowing Base Agent to each applicable Lender with a Revolving
Commitment by telefacsimile with reasonable promptness, but (provided that Borrowing Base Agent
shall have received such notice by 10:00 a.m. (New York City time)) not later than 2:00 p.m. (New
York City time) on the same day as Borrowing Base Agent’s receipt of such Notice from Company.



                    (iv) Each Lender shall make the amount of its Revolving Loan available to Borrowing Base Agent
not later than 12:00 p.m. (New York City time) on the applicable Credit Date by wire transfer of
same day funds in Dollars, to Borrowing Base Agent’s Account. Except as provided herein, upon
satisfaction or waiver of the conditions precedent specified herein, Borrowing Base Agent shall
make the proceeds of such Revolving Loans available to Company on the applicable Credit Date by
causing an amount of same day funds in Dollars equal to the proceeds of all such Revolving Loans
received by Borrowing Base Agent from Lenders to be credited to the account of Company or such
other account as may be designated in writing to Borrowing Base Agent by Company.



          2.3 Issuance of Letters of Credit and Purchase of Participations Therein




          (a) Letters of Credit. During the Revolving Commitment Period, subject to the terms and
conditions hereof, Issuing Bank agrees to issue Letters of Credit for the account of Company in
the aggregate amount up to but not exceeding the Letter of Credit Sublimit. Notwithstanding the
foregoing, a Letter of Credit shall be issued only if (and upon issuance Company shall be deemed to
represent and warrant that) (i) each Letter of Credit shall be denominated in Dollars; (ii) the
stated amount of each Letter of Credit shall not be less than an amount acceptable to Issuing Bank;
(iii) after giving effect to such issuance, in no event shall the Total Utilization of Revolving
Commitments exceed Availability at such time; (iv) after giving



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effect to such issuance, in no
event shall the Letter of Credit Usage exceed the Letter of Credit Sublimit then in effect; (v) in
no event shall any standby Letter of Credit have an expiration date later than the earlier of (1)
the date that is thirty (30) days prior to the Revolving Commitment Termination Date, and (2) the
date which is one year from the date of issuance of such standby Letter of Credit; and (vi) the
aggregate number of Letters of Credit outstanding at such time is not in excess of ten (10);
provided, Issuing Bank shall not extend any such Letter of Credit if it has received
written notice that an Event of Default has occurred and is continuing at the time Issuing Bank
must elect to allow such extension; provided, further, in the event a Funding
Default exists, Issuing Bank shall not be required to issue any Letter of Credit unless Issuing
Bank has entered into arrangements satisfactory to it and Company to eliminate Issuing Bank’s risk
with respect to the participation in Letters of Credit of the Defaulting Lender, including by cash
collateralizing such Defaulting Lender’s Pro Rata Share of the Letter of Credit Usage.




          (b) Notice of Issuance. Whenever Company desires the issuance of a Letter of Credit, it shall
deliver to Borrowing Base Agent an Issuance Notice no later than 12:00 p.m. (New York City time) at
least three (3) Business Days, in advance of the proposed date of
issuance. Upon satisfaction or waiver of the conditions set forth in Section 3.2, Issuing Bank
shall issue the requested Letter of Credit only in accordance with Issuing Bank’s standard
operating procedures. Upon the issuance of any Letter of Credit or amendment or modification to a
Letter of Credit, Borrowing Base Agent shall promptly notify each Lender of such issuance, which
notice shall be accompanied by a copy of such Letter of Credit or amendment or modification to a
Letter of Credit and the amount of such Lender’s respective participation in such Letter of Credit
pursuant to Section 2.3(e).




          (c) Responsibility of Issuing Bank With Respect to Requests for Drawings and Payments. In
determining whether to honor any drawing under any Letter of Credit by the beneficiary thereof,
Issuing Bank shall be responsible only to examine the documents delivered under such Letter of
Credit with reasonable care so as to ascertain whether they appear on their face to be in
accordance with the terms and conditions of such Letter of Credit. As between Company and Issuing
Bank, Company assumes all risks of the acts and omissions of, or misuse of the Letters of Credit
issued by Issuing Bank, by the respective beneficiaries of such Letters of Credit. In furtherance
and not in limitation of the foregoing, Issuing Bank shall not be responsible for: (i) the form,
validity, sufficiency, accuracy, genuineness or legal effect of any document submitted by any party
in connection with the application for and issuance of any such Letter of Credit, even if it should
in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged;
(ii) the validity or sufficiency of any instrument transferring or assigning or purporting to
transfer or assign any such Letter of Credit or the rights or benefits thereunder or proceeds
thereof, in whole or in part, which may prove to be invalid or ineffective for any reason; (iii)
failure of the beneficiary of any such Letter of Credit to comply fully with any conditions
required in order to draw upon such Letter of Credit; (iv) errors, omissions, interruptions or
delays in transmission or delivery of any messages, by mail, cable, telegraph, telex or otherwise,
whether or not they be in cipher; (v) errors in interpretation of technical terms; (vi) any loss or
delay in the transmission or otherwise of any document required in order to make a drawing under
any such Letter of Credit or of the proceeds thereof; (vii) the misapplication by the beneficiary
of any such Letter of Credit of the proceeds of any drawing under such Letter of Credit; or (viii)
any consequences arising from causes beyond the control of Issuing Bank, including any Governmental
Acts; none of the above shall affect or impair, or prevent the vesting



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of, any of Issuing Bank’s
rights or powers hereunder. Without limiting the foregoing and in furtherance thereof, any action
taken or omitted by Issuing Bank under or in connection with the Letters of Credit or any documents
and certificates delivered thereunder, if taken or omitted in good faith, shall not give rise to
any liability on the part of Issuing Bank to Company. Notwithstanding anything to the contrary
contained in this Section 2.3(c), Company shall retain any and all rights it may have against
Issuing Bank for any liability arising solely out of the gross negligence or willful misconduct of
Issuing Bank.




          (d) Reimbursement by Company of Amounts Drawn or Paid Under Letters of Credit. In the event
Issuing Bank has determined to honor a drawing under a Letter of Credit, it shall immediately
notify Company and Borrowing Base Agent, and Company shall reimburse Issuing Bank on or before the
Business Day immediately following the date on which such drawing under a Letter of Credit is
honored (the “Reimbursement Date”) in an amount in Dollars and in same day funds equal to the
amount of such honored drawing; provided, that anything contained herein to the
contrary notwithstanding, (i) unless Company shall have notified Borrowing Base Agent and Issuing
Bank prior to 10:00 a.m. (New York City time) on
the date such drawing is honored that Company intends to reimburse Issuing Bank for the amount of
such honored drawing with funds other than the proceeds of Revolving Loans, Company shall be deemed
to have given a timely Funding Notice to Borrowing Base Agent requesting Lenders to make Revolving
Loans that are Base Rate Loans on the Reimbursement Date in an amount in Dollars equal to the
amount of such honored drawing, and (ii) notwithstanding any failure of any condition specified in
Section 3.2 to be satisfied, Lenders shall, on the Reimbursement Date, make Revolving Loans that
are Base Rate Loans in the amount of such honored drawing, the proceeds of which shall be applied
directly by Borrowing Base Agent to reimburse Issuing Bank for the amount of such honored drawing;
and provided further, if for any reason proceeds of Revolving Loans are not
received by Issuing Bank on the Reimbursement Date in an amount equal to the amount of such honored
drawing, Company shall reimburse Issuing Bank, on demand, in an amount in same day funds equal to
the excess of the amount of such honored drawing over the aggregate amount of such Revolving Loans,
if any, which are so received. Nothing in this Section 2.3(d) shall be deemed to relieve any
Lender from its obligation to make Revolving Loans on the terms and conditions set forth herein,
and Company shall retain any and all rights it may have against any Lender resulting from the
failure of such Lender to make such Revolving Loans under this Section 2.3(d).




          (e) Lenders’ Purchase of Participations in Letters of Credit. Immediately upon the issuance
of each Letter of Credit, each Lender having a Revolving Commitment shall be deemed to have
purchased, and hereby agrees to unconditionally and irrevocably purchase, from Issuing Bank a
participation in such Letter of Credit and any drawings honored thereunder in an amount equal to
such Lender’s Pro Rata Share (with respect to the Revolving Commitments) of the maximum amount
which is or at any time may become available to be drawn thereunder. In the event that Company
shall fail for any reason to reimburse Issuing Bank as provided in Section 2.3(d), Issuing Bank
shall promptly notify each Lender of the unreimbursed amount of such honored drawing and of such
Lender’s respective participation therein based on such Lender’s Pro Rata Share of the Revolving
Commitments. Each Lender shall make available to Issuing Bank an amount equal to its respective
participation, in Dollars and in same day funds, at the office of Issuing Bank specified in such
notice, not later than 12:00 p.m. (New York City time) on the first business day (under the laws
of the jurisdiction in which



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such office of Issuing Bank is located) after the date notified by
Issuing Bank. Each such Lender acknowledges and agrees that its obligation to acquire
participations pursuant to this paragraph in respect of Letters of Credit is absolute and
unconditional and shall not be affected by any circumstance whatsoever, including any amendment,
renewal or extension of any Letter of Credit or the occurrence and continuance of a Default or
reduction or termination of the Revolving Commitments, and that each such payment shall be made
without any offset, abatement, withholding or reduction whatsoever. In the event that any Lender
fails to make available to Issuing Bank on such business day the amount of such Lender’s
participation in such Letter of Credit as provided in this Section 2.3(e), Issuing Bank shall be
entitled to recover such amount on demand from such Lender together with interest thereon for three
(3) Business Days at the rate customarily used by Issuing Bank for the correction of errors among
banks and thereafter at the Base Rate. Nothing in this Section 2.3(e) shall be deemed to prejudice
the right of any Lender to recover from Issuing Bank any amounts made available by such Lender to
Issuing Bank pursuant to this Section in the event that it is determined that the payment with
respect to a Letter of Credit in respect of which payment was made by such Lender constituted gross
negligence or willful misconduct on the part of Issuing Bank. In the event Issuing Bank
shall have been reimbursed by other Lenders pursuant to this Section 2.3(e) for all or any portion
of any drawing honored by Issuing Bank under a Letter of Credit, such Issuing Bank shall distribute
to each Lender which has paid all amounts payable by it under this Section 2.3(e) with respect to
such honored drawing such Lender’s Pro Rata Share of all payments subsequently received by Issuing
Bank from Company in reimbursement of such honored drawing when such payments are received. Any
such distribution shall be made to a Lender at its primary address set forth below its name on
Appendix B or at such other address as such Lender may request.




          (f) Obligations Absolute. The obligation of Company to reimburse Issuing Bank for drawings
honored under the Letters of Credit issued by it and to repay any Revolving Loans made by Lenders
pursuant to Section 2.3(d) and the obligations of Lenders under Section 2.3(e) shall be
unconditional and irrevocable and shall be paid strictly in accordance with the terms hereof under
all circumstances including any of the following circumstances: (i) any lack of validity or
enforceability of any Letter of Credit; (ii) the existence of any claim, set off, defense or other
right which Company or any Lender may have at any time against a beneficiary or any transferee of
any Letter of Credit (or any Persons for whom any such transferee may be acting), Issuing Bank,
Lender or any other Person or, in the case of a Lender, against Company, whether in connection
herewith, the transactions contemplated herein or any unrelated transaction (including any
underlying transaction between Company or one of its Subsidiaries and the beneficiary for which any
Letter of Credit was procured); (iii) any draft or other document presented under any Letter of
Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement
therein being untrue or inaccurate in any respect; (iv) payment by Issuing Bank under any Letter of
Credit against presentation of a draft or other document which does not substantially comply with
the terms of such Letter of Credit; (v) any adverse change in the business, operations, properties,
assets, condition (financial or otherwise) or prospects of Company or any of its Subsidiaries; (vi)
any breach hereof or any other Credit Document by any party thereto; (vii) any other circumstance
or happening whatsoever, whether or not similar to any of the foregoing; or (viii) the fact that an
Event of Default or a Default shall have occurred and be continuing; provided, in each case, the
foregoing shall not be construed to excuse the Issuing Bank from liabilities to the extent of any
direct damages (as opposed to consequential damages, claims in respect of which are hereby waived
by Company to the extent



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permitted by applicable law) suffered by Company that are caused by
Issuing Bank’s gross negligence or willful misconduct of Issuing Bank in payment of the applicable
Letter of Credit under the circumstances in question.




          (g) Indemnification. Without duplication of any obligation of Company under Section 10.2 or
10.3, in addition to amounts payable as provided herein, Company hereby agrees to protect,
indemnify, pay and save harmless Issuing Bank, Borrowing Base Agent and each Lender from and
against any and all claims, demands, liabilities, damages, losses, costs, charges and expenses
(including reasonable fees, expenses and disbursements of counsel and allocated costs of internal
counsel) which Issuing Bank may incur or be subject to as a consequence, direct or indirect, of (i)
the issuance of any Letter of Credit by Issuing Bank, other than as a result of the gross
negligence or willful misconduct of Issuing Bank, or (ii) the failure of Issuing Bank to honor a
drawing under any such Letter of Credit as a result of any Governmental Act.




          2.4 Pro Rata Shares; Availability of Funds.




          (a) Pro Rata Shares. All Loans shall be made, and all participations purchased, by Lenders
simultaneously and proportionately to their respective Pro Rata Shares, it being understood that no
Lender shall be responsible for any default by any other Lender in such other Lender’s obligation
to make a Loan requested hereunder or purchase a participation required hereby nor shall any Term
Loan Commitment or any Revolving Commitment of any Lender be increased or decreased as a result of
a default by any other Lender in such other Lender’s obligation to make a Loan requested hereunder
or purchase a participation required hereby.




          (b) Availability of Funds. Unless Borrowing Base Agent or Administrative Agent, as applicable,
shall have been notified by any Lender prior to the applicable Credit Date that such Lender does
not intend to make available to Borrowing Base Agent or Administrative Agent, as applicable, the
amount of such Lender’s Loan requested on such Credit Date, Borrowing Base Agent or Administrative
Agent, as applicable, may assume that such Lender has made such amount available to Borrowing Base
Agent or Administrative Agent, as applicable, on such Credit Date and Borrowing Base Agent or
Administrative Agent, as applicable, may, in its reasonable discretion, but shall not be obligated
to, make available to the Applicable Borrower a corresponding amount on such Credit Date. If such
corresponding amount is not in fact made available to Borrowing Base Agent or Administrative Agent,
as applicable, by such Lender, Borrowing Base Agent or Administrative Agent, as applicable, shall
be entitled to recover such corresponding amount on demand from such Lender together with interest
thereon, for each day from such Credit Date until the date such amount is paid to Borrowing Base
Agent or Administrative Agent, as applicable, at the customary rate set by Borrowing Base Agent and
Administrative Agent, as applicable, for the correction of errors among banks for three (3)
Business Days and thereafter at the Base Rate. If such Lender does not pay such corresponding
amount forthwith upon Borrowing Base Agent’s or Administrative Agent’s, as applicable, demand
therefor, Borrowing Base Agent or Administrative Agent, as applicable, shall promptly notify the
Applicable Borrower and the Applicable Borrower shall immediately pay such corresponding amount to
Borrowing Base Agent or Administrative Agent, as applicable, together with interest thereon, for
each day from such Credit Date until the date such amount is paid to Borrowing Base Agent or
Administrative Agent, as applicable, at the rate payable hereunder for




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Base Rate Loans. Nothing in
this Section 2.4(b) shall be deemed to relieve any Lender from its obligation to fulfill its Term
Loan Commitments and Revolving Commitments hereunder or to prejudice any rights that any Borrower
may have against any Lender as a result of any default by such Lender hereunder.




          2.5 Use of Proceeds. The proceeds of the Tranche A Term Loans and the Revolving Loans, if any, made on
the Closing Date shall be applied by Company to (i) repay the Existing Indebtedness, (ii) finance
the general corporate purposes of the Company and its Subsidiaries (including the payment of those
items specified in the Flow of Funds Agreement), and (iii) pay fees and expenses associated with
the transactions contemplated by this Agreement and the refinancing of the Existing Indebtedness.
The proceeds of the Tranche A-1 Term Loans shall be applied by SPV to finance the acquisition by
SPV of $40 million of Panel Inventory in accordance with the terms of the Panel Deposit Agreements.
The proceeds of the Revolving Loans, and the Letters of Credit made after the Closing Date shall
be applied by Company for
working capital and general corporate purposes of Company and its Subsidiaries; provided,
that (i) in no event shall the proceeds of any Revolving Loans be used to make or facilitate any
Investment or Restricted Junior Payment not otherwise permitted hereunder; and (ii) in the event
that the Credit Parties desire to purchase any Panel Inventory with the proceeds of any Revolving
Loans, the proceeds of any such Loans shall be loaned by Company to SPV, and such Panel Inventory
shall be purchased solely by SPV. No portion of the proceeds of any Credit Extension shall be used
in any manner that causes or might cause such Credit Extension or the application of such proceeds
to violate Regulation T, Regulation U or Regulation X of the Board of Governors of the Federal
Reserve System or any other regulation thereof or to violate the Exchange Act.




          2.6 Evidence of Debt; Register; Lenders’ Books and Records; Notes.




          (a) Lenders’ Evidence of Debt. Each Lender shall maintain on its internal records an account
or accounts evidencing the Obligations of the Applicable Borrower to such Lender, including the
amounts of the Loans made by it and each repayment and prepayment in respect thereof. Any such
recordation shall be conclusive and binding on the Applicable Borrower, absent manifest error;
provided, that the failure to make any such recordation, or any error in such recordation, shall
not affect any Lender’s Commitments or the Applicable Borrower’s Obligations in respect of any
applicable Loans; and provided further that, in the event of any inconsistency between the
Registers and any Lender’s records, the recordations in the Register shall govern.




          (b)Register. Borrowing Base Agent shall maintain at its Principal Office a register for the
recordation of the names and addresses of Lenders and the Revolving Commitments and Revolving Loans
of each Lender from time to time (the “Revolving Loan Register” ). Administrative Agent shall
maintain at its Principal Office a register for the recordation of the names and addresses of
Lenders and the Tranche A Term Loans and Tranche A-1 Term Loans of each Lender from time to time
(the “Term Loan Register” and together with the Revolving Loan Register, collectively, the
“Registers”). The Registers shall be available for inspection by Borrowers or any Lender at any
reasonable time and from time to time upon reasonable prior notice. Borrowing Base Agent shall
record in the Revolving Loan Register the Revolving Commitments and the Revolving Loans, and each
repayment or



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prepayment in respect of the principal amount of the Revolving Loans, and any such
recordation shall be conclusive and binding on Borrower and each Lender, absent manifest error;
provided, that failure to make any such recordation, or any error in such recordation,
shall not affect any Lender’s Revolving Commitments or any Borrower’s Obligations in respect of any
Revolving Loan. Company hereby designates the entity serving as Borrowing Base Agent to serve as
Company’s agent solely for purposes of maintaining the Revolving Loan Register as provided in this
Section 2.6, and Company hereby agrees that, to the extent such entity serves in such capacity, the
entity serving as Borrowing Base Agent and its officers, directors, employees, agents and
affiliates shall constitute “Indemnitees”. Administrative Agent shall record in the Term Loan
Register the Tranche A Term Loan Commitments, the Tranche A-1 Term Loan Commitments, the Tranche A
Term Loans and the Tranche A-1 Term Loans, and each repayment or prepayment in respect of the
principal amount of the Tranche A Term Loans and the Tranche A-1 Term Loans, and any such
recordation shall be conclusive and binding on the Applicable Borrower and each Lender, absent
manifest error; provided, that failure to make any
such recordation, or any error in such recordation, shall not affect any Lender’s Tranche A Term
Loan Commitments or Tranche A-1 Term Loan Commitments or the Applicable Borrower’s Obligations in
respect of any Tranche A Term Loan or Tranche A-1 Term Loan, as applicable. Each Borrower hereby
designates the entity serving as Administrative Agent to serve as such Borrower’s agent solely for
purposes of maintaining the Term Loan Register as provided in this Section 2.6, and each Borrower
hereby agrees that, to the extent such entity serves in such capacity, the entity serving as
Administrative Agent and its officers, directors, employees, agents and affiliates shall constitute
“Indemnitees”.




          (c) Notes. If so requested by any Lender by written notice to the Applicable Borrower (with a
copy to Administrative Agent and the Borrowing Base Agent) at least two (2) Business Days prior to
the Closing Date, or at any time thereafter, the Applicable Borrower shall execute and deliver to
such Lender (and/or, if applicable and if so specified in such notice, to any Person who is an
assignee of such Lender pursuant to Section 10.6) on the Closing Date (or, if such notice is
delivered after the Closing Date, promptly after the Applicable Borrower’s receipt of such notice)
a Note or Notes to evidence such Lender’s Tranche A Term Loan, Tranche A-1 Term Loan, or Revolving
Loan, as the case may be.




          2.7 Interest on Loans.




          (a) Except as otherwise set forth herein, each Class of Loan shall bear interest on the unpaid
principal amount thereof from the date made through repayment (whether by acceleration or
otherwise) thereof as follows:




                    (i) if a Base Rate Loan, at the Base Rate plus the Applicable Margin; or



                    (ii) if a LIBOR Rate Loan, at the Adjusted LIBOR Rate plus the Applicable Margin.



          (b) The basis for determining the rate of interest with respect to any Loan, and the Interest
Period with respect to any LIBOR Rate Loan, shall be selected by the Applicable Borrower and
notified to Borrowing Base Agent, Administrative Agent and Lenders pursuant to



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the applicable
Funding Notice or Conversion/Continuation Notice, as the case may be. If on any day a Loan is
outstanding with respect to which a Funding Notice or Conversion/Continuation Notice has not been
delivered to Borrowing Base Agent and Administrative Agent, as applicable, in accordance with the
terms hereof specifying the applicable basis for determining the rate of interest, then for that
day such Loan shall be a Base Rate Loan.




          (c) In connection with LIBOR Rate Loans there shall be no more than (i) in the case of Tranche
A Term Loans, two (2) Interest Periods outstanding at any time, (ii) in the case of Tranche A-1
Term Loans, two (2) Interest Periods outstanding at any time, and (iii) in the case of Revolving
Loans, two (2) Interest Periods outstanding at any time. In the event the Applicable Borrower
fails to specify between a Base Rate Loan or a LIBOR Rate Loan in the applicable Funding Notice or
Conversion/Continuation Notice, such Loan (if outstanding as a LIBOR Rate Loan) will be
automatically converted into a Base Rate Loan on the last day of the then current Interest Period
for such Loan (or if outstanding as a Base Rate Loan will remain as,
or (if not then outstanding) will be made as, a Base Rate Loan). In the event the Applicable
Borrower fails to specify an Interest Period for any LIBOR Rate Loan in the applicable Funding
Notice or Conversion/Continuation Notice, the Applicable Borrower shall be deemed to have selected
an Interest Period of one month. As soon as practicable after 10:00 a.m. (New York City time) on
each Interest Rate Determination Date, Borrowing Base Agent or Administrative Agent, as applicable,
shall determine (which determination shall, absent manifest error, be final, conclusive and binding
upon all parties) the interest rate that shall apply to the LIBOR Rate Loans for which an interest
rate is then being determined for the applicable Interest Period and shall promptly give notice
thereof (in writing or by telephone confirmed in writing) to the Applicable Borrower and each
applicable Lender.




          (d) Interest payable pursuant to Section 2.7(a) shall be computed on the basis of a 360 day
year with respect to LIBOR Rate Loans and 365/66 day year with respect to Base Rate Loans,
in each case for the actual number of days elapsed in the period during which it accrues. In
computing interest on any Loan, the date of the making of such Loan or the first day of an Interest
Period applicable to such Loan or, with respect to a Base Rate Loan being converted from a LIBOR
Rate Loan, the date of conversion of such LIBOR Rate Loan to such Base Rate Loan, as the case may
be, shall be included, and the date of payment of such Loan or the expiration date of an Interest
Period applicable to such Loan or, with respect to a Base Rate Loan being converted to a LIBOR Rate
Loan, the date of conversion of such Base Rate Loan to such LIBOR Rate Loan, as the case may be,
shall be excluded; provided, that if a Loan is repaid on the same day on which it is made,
one day’s interest shall be paid on that Loan.




          (e) Except as otherwise set forth herein, interest on each Loan shall be payable in arrears
(i) on and to each Interest Payment Date applicable to that Loan; (ii) upon any prepayment of that
Loan, whether voluntary or mandatory, to the extent accrued on the amount being prepaid; and (iii)
at maturity, including final maturity.





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          2.8 Conversion/Continuation.



               (a) Subject to Section 2.17 and so long as no Default or Event of Default shall have occurred
and then be continuing, the Applicable Borrower shall have the option:



                    (i) to convert at any time all or any part of any Term Loan or Revolving Loan equal to
$1,000,000 and integral multiples of $500,000 in excess of that amount from one Type of Loan to
another Type of Loan; provided, that a LIBOR Rate Loan may only be converted on the
expiration of the Interest Period applicable to such LIBOR Rate Loan unless the Applicable Borrower
shall pay all amounts due under Section 2.17 in connection with any such conversion; or



                    (ii) upon the expiration of any Interest Period applicable to any LIBOR Rate Loan, to continue
all or any portion of such Loan equal to $1,000,000 and integral multiples of $500,000 in excess of
that amount as a LIBOR Rate Loan.



               (b) The Applicable Borrower shall deliver a Conversion/Continuation Notice to Borrowing Base
Agent and Administrative Agent no later than 10:00 a.m. (New York City time) at least one Business
Day in advance of the proposed conversion date (in the case of a conversion to a Base Rate Loan)
and at least three (3) Business Days in advance of the proposed conversion/continuation date (in
the case of a conversion to, or a continuation of, a LIBOR Rate Loan). Except as otherwise
provided herein, a Conversion/Continuation Notice for conversion to, or continuation of, any LIBOR
Rate Loans (or telephonic notice in lieu thereof) shall be irrevocable on and after the related
Interest Rate Determination Date, and the Applicable Borrower shall be bound to effect a conversion
or continuation in accordance therewith.



          2.9 Default Interest. Upon the occurrence and during the continuance of an Event of Default, the
principal amount of all Loans outstanding and, to the extent permitted by applicable law, any
interest payments on the Loans or any fees or other amounts owed hereunder, shall thereafter bear
interest (including post petition interest in any proceeding under the Bankruptcy Code or other
applicable bankruptcy laws) payable on demand at a rate that is two percent (2%) per annum in
excess of the interest rate otherwise payable hereunder with respect to the applicable Loans (or,
in the case of any such fees and other amounts, at a rate which is two percent (2%) per annum in
excess of the interest rate otherwise payable hereunder for Base Rate Loans); provided,
that in the case of LIBOR Rate Loans, upon the expiration of the Interest Period in effect at the
time any such increase in interest rate is effective such LIBOR Rate Loans shall thereupon become
Base Rate Loans and shall thereafter bear interest payable upon demand at a rate which is two
percent (2%) per annum in excess of the interest rate otherwise payable hereunder for Base Rate
Loans. Payment or acceptance of the increased rates of interest provided for in this Section 2.9
is not a permitted alternative to timely payment and shall not constitute a waiver of any Event of
Default or otherwise prejudice or limit any rights or remedies of any Agent, Borrowing Base Agent
or any Lender.




          2.10 Fees.




               (a) (i) Company agrees to pay to Borrowing Base Agent for the ratable benefit of Lenders
having Revolving Exposure letter of credit fees equal to (1) the interest rate



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applicable to Revolving Loans that are LIBOR Rate Loans (including both the Adjusted LIBOR
Rate (determined for an Interest Period of one month as of the first Business Day of such month)
and the Applicable Margin components thereof and after giving effect to any Default Rate of
interest that may be payable thereon at such time under Section 2.9), times (2) the average
aggregate daily maximum amount available to be drawn under all Letters of Credit (regardless of
whether any conditions for drawing could then be met and determined as of the close of business on
any date of determination); and



                    (ii) All fees referred to in this Section 2.10(a) shall be paid to an account designed by
Borrowing Base Agent and upon receipt, Borrowing Base Agent shall promptly distribute to each
applicable Lender its Pro Rata Share thereof.



               (b) Company agrees to pay directly to Issuing Bank, for its own account, such documentary and
processing charges for any issuance, amendment, transfer or payment of a Letter of Credit as are in
accordance with Issuing Bank’s standard schedule for such charges and as in effect at the time of
such issuance, amendment, transfer or payment, as the case may be.



               (c) Company agrees to pay directly to Borrowing Base Agent, for its own account (as
reimbursement of fees and expenses paid by Borrowing Base Agent to the Issuing Bank) the fees and
expenses relating to such documentary and processing charges for any issuance, amendment, transfer
or payment of a Letter of Credit as are in accordance with Issuing Bank’s standard schedule for
such charges and as in effect at the time of such issuance, amendment, transfer or payment, as the
case may be.



               (d) All fees referred to in Sections 2.10(a), 2.10(b) and 2.10(c) shall be calculated on the
basis of a 360 day year and the actual number of days elapsed and shall be payable monthly in
arrears on the last day of each month during the Revolving Commitment Period (provided,
that the fees referred to in Sections 2.10(b) and 2.10(c) shall continue to be paid at anytime
Letters of Credit are issued and outstanding), commencing on the first such date to occur after the
Closing Date, and on the Revolving Commitment Termination Date.



               (e) In addition to the foregoing fees, Company agrees to pay to Agents all fees specified in
the Fee Letter in the amounts and at the times specified therein and to Agents such other fees in
the amounts and at the times separately agreed upon.



          2.11 Scheduled Payments/Commitment Reductions.




               (a) The aggregate unpaid principal amount of the Tranche A Term Loans and the Tranche A-1 Term
Loans, together with all other amounts owed hereunder with respect thereto, shall be paid in full
no later than the Tranche A Term Loan Maturity Date and the Tranche A-1 Term Loan Maturity Date,
respectively.



               (b) The Revolving Commitments shall be reduced in connection with any voluntary or mandatory
reductions of the Revolving Commitments in accordance with Sections 2.11, 2.12, and 2.13, as
applicable, and shall be terminated on the Revolving Commitment Termination Date, and all other
amounts owed hereunder with respect thereto shall, in any event, be paid in full no later than the
Revolving Commitment Termination Date.



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          2.12 Voluntary Prepayments/Commitment Reductions.




               (a) Voluntary Prepayments.



                    (i) Subject to Sections 2.12(a)(iii) and 2.17(c) and the terms of the Fee Letter, any time and
from time to time:




                         (1) with respect to Base Rate Loans, the Applicable Borrower may prepay any
such Loans on any Business Day in whole or in part, in an aggregate minimum amount
of $1,000,000 and integral multiples of $500,000 in excess of that amount; and




                         (2) with respect to LIBOR Rate Loans, the Applicable Borrower may prepay any
such Loans on any Business Day in whole or in part (together with any amounts due
pursuant to Section 2.17(c)) in an aggregate minimum amount of $1,000,000 and
integral multiples of $500,000 in excess of that amount.



                    (ii) All such prepayments shall be made:




                         (1) upon not less than one Business Day’s prior written or telephonic notice in
the case of Base Rate Loans; and




                         (2) upon not less than three (3) Business Days’ prior written or telephonic
notice in the case of LIBOR Rate Loans,


in each case given to Borrowing Base Agent or Administrative Agent, as applicable, by 12:00 p.m.
(New York City time) on the date required and, if given by telephone, promptly confirmed in writing
to Borrowing Base Agent and Administrative Agent, as applicable, (and Borrowing Base Agent and
Administrative Agent, as applicable, will promptly transmit such telephonic or original notice for
Term Loans or Revolving Loans, as the case may be, by telefacsimile or telephone to each Lender).
Upon the giving of any such notice, the principal amount of the Loans specified in such notice
shall become due and payable on the prepayment date specified therein.




                    (iii) Notwithstanding anything to the contrary contained herein, no Term Loan may be
voluntarily prepaid at any time when any Revolving Loans are outstanding.



               (b) Voluntary Commitment Reductions.



                    (i) Subject to the terms of the Fee Letter, any time and from time to time, Company may, upon
not less than three (3) Business Days’ prior written or telephonic notice confirmed in writing to
Borrowing Base Agent and Administrative Agent (which original written or telephonic notice
Borrowing Base Agent and Administrative Agent will promptly transmit by telefacsimile or telephone
to each applicable Lender), at any time and from time to time terminate in whole or permanently
reduce in part the Revolving Commitments in an amount up to the amount by which the Revolving
Commitments exceed the Total



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Utilization of Revolving Commitments at the time of such proposed termination or reduction;
provided, that any such partial reduction of the Revolving Commitments shall be in an
aggregate minimum amount of $1,000,000 and integral multiples of $500,000 in excess of that amount.



                    (ii) Company’s notice to Borrowing Base Agent and Administrative Agent shall designate the
date (which shall be a Business Day) of such termination or reduction and the amount of any partial
reduction, and such termination or reduction of the Revolving Commitments shall be effective on the
date specified in Company’s notice and shall reduce the Revolving Commitment of each Lender
proportionately to its Pro Rata Share thereof.



          2.13 Mandatory Prepayments/Commitment Reductions.




               (a) Asset Sales. No later than the first Business Day following the date of receipt by Company
or any of its Subsidiaries of any Net Asset Sale Proceeds, the Applicable Borrower shall prepay the
Loans as set forth in Section 2.14(b) in an aggregate amount equal to such Net Asset Sale Proceeds;
provided, that (i) so long as no Default or Event of Default shall have occurred and be
continuing, and (ii) to the extent that aggregate Net Asset Sale Proceeds from the Closing Date
through the applicable date of determination do not exceed $250,000, the Applicable Borrower shall
have the option, directly or through one or more of its Subsidiaries, to invest Net Asset Sale
Proceeds within one hundred eighty (180) days of receipt thereof in long term productive assets of
the general type used in the business of Company and its Subsidiaries; so long as (x) such assets
shall be subject to the First Priority Lien in favor of the Collateral Agent and (y) the Applicable
Borrower delivers to the Collateral Agent, concurrently with or prior to the Asset Sale, a
certificate of an Authorized Officer of the Applicable Borrower stating that such Net Asset Sale
Proceeds will be used in compliance with this Section 2.13(a); provided further,
that pending any such investment all such Net Asset Sale Proceeds shall be applied to prepay
Revolving Loans to the extent outstanding (without a reduction in Revolving Commitments).



               (b) Insurance/Condemnation Proceeds. No later than the first Business Day following the date
of receipt by Company or any of its Subsidiaries, or Administrative Agent as loss payee, of any Net
Insurance/Condemnation Proceeds, the Applicable Borrower shall prepay the Loans as set forth in
Section 2.14(b) in an aggregate amount equal to such Net Insurance/Condemnation Proceeds;
provided, (i) so long as no Default or Event of Default shall have occurred and be
continuing, and (ii) to the extent that aggregate Net Insurance/Condemnation Proceeds from the
Closing Date through the applicable date of determination do not exceed $250,000, the Applicable
Borrower shall have the option, directly or through one or more of its Subsidiaries to invest such
Net Insurance/Condemnation Proceeds within one hundred eighty (180) days of receipt thereof in long
term productive assets of the general type used in the business of Company and its Subsidiaries,
which investment may include the repair, restoration or replacement of the applicable assets
thereof, so long as (x) such assets shall be subject to the First Priority Lien in favor of the
Collateral Agent and (y) the Applicable Borrower delivers to the Collateral Agent, concurrently
with or prior to the receipt of such Net Insurance/Condemnation Proceeds, a certificate of an
Authorized Officer of the Applicable Borrower stating that such Net Insurance/Condemnation Proceeds
will be used in compliance with this Section 2.13(b); provided further, that
pending any such investment all



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such Net Insurance/Condemnation Proceeds, as the case may be, shall be applied to prepay Revolving
Loans to the extent outstanding (without a reduction in Revolving Commitments).



               (c) Issuance of Equity Securities. On the date of receipt by Company of any Cash proceeds from
a capital contribution to, or the issuance of any Capital Stock of, Company or any of its
Subsidiaries (other than capital contributions from, and issuances of any Capital Stock to, those
persons disclosed in writing to the Administrative Agent prior to the Closing Date), Company shall
prepay the Loans as set forth in Section 2.14(b) in an aggregate amount equal to twenty-five
percent (25%) of such proceeds, net of underwriting discounts and commissions and other reasonable
costs and expenses associated therewith, including reasonable legal fees and expenses.



               (d) Issuance of Debt. On the date of receipt by Company or any of its Subsidiaries of any Cash
proceeds from the incurrence of any Indebtedness of Company or any of its Subsidiaries (other than
with respect to any Indebtedness permitted to be incurred pursuant to Section 6.1(a)-(n)), the
Applicable Borrower shall prepay the Loans as set forth in Section 2.14(b) in an aggregate amount
equal to one hundred percent (100%) of such proceeds, net of underwriting discounts and commissions
and other reasonable costs and expenses associated therewith, including reasonable legal fees and
expenses.



               (e) Consolidated Excess Cash Flow. In the event that there shall be Consolidated Excess Cash
Flow for any Fiscal Year (commencing with Fiscal Year ending June 30, 2008), Company shall, no
later than ninety (90) days after the end of such Fiscal Year, prepay the Loans as set forth in
Section 2.14(b) in an aggregate amount equal to fifty percent (50.0%) of such Consolidated Excess
Cash Flow.



               (f) Extraordinary Receipts. No later than the first Business Day following the date of receipt
by Company or any of its Subsidiaries of any Extraordinary Receipts, the Applicable Borrower shall
prepay the Loans as set forth in Section 2.14(b) in an aggregate amount equal to such Extraordinary
Receipts.



               (g) Loans. Company shall from time to time prepay the Loans to the extent necessary so that
the Total Utilization of Revolving Commitments plus the aggregate outstanding principal amount of
the Term Loans shall not at any time exceed the Borrowing Base then in effect (or, in the case of
the period from the Closing Date until the date that is the 90th day following the Closing Date, an
amount equal to $150,000,000 plus the amount, if any, by which the Borrowing Base exceeds
$150,000,000); provided, that all such prepayments shall be applied, to the extent
applicable, first, to the principal amount of Revolving Loans outstanding at such time, second, to
provide cash collateral in respect of the Obligations, to be held as security for Borrower’s
reimbursement Obligations in respect of the outstanding Letters of Credit under arrangements
reasonably acceptable to Borrowing Base Agent, equal to one hundred and five percent (105%) of the
Letter of Credit Usage at any time prior to the stated expiry of all outstanding Letters of Credit,
and third, to the principal amount of the Term Loans outstanding at such time.



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               (h) Term Loans. The Applicable Borrowers shall immediately prepay the outstanding
principal amount of the Term Loans pursuant to Section 2.15(h) in the event that the Revolving
Commitments are terminated for any reason.



               (i) Proceeds from Factor. Any funds received by Borrowing Base Agent from (i) Factor,
pursuant to the Factoring Agreement, or (ii) in connection with any receivables management
agreement or other similar arrangement that Credit Parties may enter into from time to time, shall
be applied to reduce the Revolving Loans on a daily basis; provided, that if an Event of
Default shall have occurred and be continuing, such funds shall be applied pursuant to Section
2.15(h).



               (j) Prepayment Certificate. Concurrently with any prepayment of the Loans and/or reduction of
the Revolving Commitments pursuant to Sections 2.13(a)-(h), Borrowers shall deliver to
Administrative Agent a certificate of an Authorized Officer demonstrating the calculation of the
amount of the applicable net proceeds, Consolidated Excess Cash Flow or other applicable financial
tests or proceeds giving rise to the prepayment, as the case may be. In the event that Company or
any of its Subsidiaries shall subsequently determine that the actual amount received exceeded the
amount set forth in such certificate, the Applicable Borrower shall promptly make an additional
prepayment of the Loans and/or the Revolving Commitments shall be permanently reduced in an amount
equal to such excess, and Borrowers shall concurrently therewith deliver to Administrative Agent a
certificate of an Authorized Officer demonstrating the derivation of such excess.



          2.14 Application of Prepayments/Reductions.




               (a) Application of Voluntary Prepayments of Loans. Any prepayment of any Revolving Loan
pursuant to Section 2.12 shall be applied to repay outstanding Revolving Loans to the full extent
thereof. Any voluntary prepayment of any Term Loan pursuant to Section 2.12 shall be applied to
repay outstanding Term Loans on a pro rata basis (in accordance with the respective outstanding
principal amounts thereof); provided, however, that no Term Loan may be voluntarily prepaid
at any time when any Revolving Loans are outstanding.



               (b) Application of Mandatory Prepayments.



                    (i) So long as no Default or Event of Default has occurred and is continuing, any mandatory
prepayment of any Loan pursuant to Section 2.13(a) and (b) shall be applied as follows:




(w) if such proceeds are with respect to Eligible Inventory, Eligible
Accounts, Eligible Foreign Accounts or Eligible Panel Inventory
(collectively, “Borrowing Base Assets”), then such proceeds shall be
applied,




     first, to prepay principal of the Revolving Loans;




     second, to prepay principal of the Term Loans (on a pro rata basis);
and



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     third, to any other Obligations then outstanding;




(x) if such proceeds are with respect to any Collateral other than
Borrowing Base Assets, then such proceeds shall be applied,




     first, to prepay principal of the Revolving Loans; provided,
that the Borrowing Base Agent imposes a permanent block against the
Borrowing Base, in each case, on a dollar-for-dollar basis with such
prepayment;




     second, to prepay principal of the Term Loans (on a pro rata basis);
and




     third, to any other Obligations then outstanding;




(z) if such proceeds are with respect to both (1) Borrowing Base Assets and
(2) other Collateral, then such proceeds shall be applied,




     first, to prepay principal of the Revolving Loans; provided,
that the Borrowing Base Agent imposes a permanent block against the
Borrowing Base in an amount equal to the amount of such prepayment that is
in excess of the Revolving Loans supported by such Borrowing Base Assets
determined using the advance rates under the Borrowing Base against such
Borrowing Base Assets (determined at the time of such sale or other
disposition or event resulting in such insurance proceeds);




     second, to prepay principal of the Term Loans (on a pro rata basis);




     third, to prepay principal of the Revolving Loans; and




     fourth, to any other Obligations then outstanding,



                    (ii) So long as no Event of Default has occurred and is continuing, any mandatory prepayment
of any Loan pursuant to Sections 2.13(c) through (h) shall be applied as follows:




     first, to prepay principal of the Revolving Loans; provided,
that the Borrowing Base Agent imposes a permanent block against the
Borrowing Base, in each case, on a dollar-for-dollar basis with such
prepayment;




     second, to prepay principal of the Term Loans (on a pro rata basis);
and




     third, to any other Obligations then outstanding.



                    (iii) If an Event of Default has occurred and is continuing, all payments shall be applied
pursuant to Section 2.15(h). Nothing contained herein shall modify the provisions of Section
2.15(b) or the Fee Letter regarding the requirement that all prepayments be accompanied by accrued
interest and fees on the principal amount being prepaid



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to the date of such prepayment and any amount required pursuant to the terms of the Fee
Letter, or any requirement otherwise contained herein to pay all other amounts as the same become
due and payable.



               (c) Waiver of Certain Prepayments. Anything contained herein to the contrary notwithstanding,
in the event any Borrower is required to make any mandatory or elects to make a voluntary
prepayment (a “Waivable Prepayment”) of the Term Loans, not less than three (3) Business Days prior
to the date (the “Prepayment Date”) on which the Applicable Borrower is required to make such
Waivable Prepayment, the Applicable Borrower shall notify Administrative Agent of the amount of
such prepayment, and Administrative Agent will promptly thereafter notify each Lender holding an
outstanding Term Loan of the amount of such Lender’s Pro Rata Share of such Waivable Prepayment and
such Lender’s option to refuse such amount (the “Refusal Option”). Each such Lender may exercise
the Refusal Option by giving written notice to the Applicable Borrower and Administrative Agent of
its election to do so on or before the first Business Day prior to the Prepayment Date (it being
understood that any Lender which does not notify the Applicable Borrower and Administrative Agent
of its election to exercise its Refusal Option on or before the first Business Day prior to the
Prepayment Date shall be deemed to have elected, as of such date, not to exercise such Refusal
Option). On the Prepayment Date, the Applicable Borrower shall pay to Administrative Agent the
amount of the Waivable Prepayment, which amount shall be applied (i) in an amount equal to that
portion of the Waivable Prepayment payable pro rata to those Lenders that have elected not to
exercise the Refusal Option, to prepay the Term Loans of such Lenders, and (ii) to the extent of
any excess, to the Applicable Borrower for working capital and general corporate purposes.



               (d) Application of Prepayments of Loans to Base Rate Loans and LIBOR Rate Loans. Considering
each Class of Loans being prepaid separately, any prepayment thereof shall be applied first to Base
Rate Loans to the full extent thereof before application to LIBOR Rate Loans, in each case in a
manner which minimizes the amount of any payments required to be made by the Applicable Borrower
pursuant to Section 2.17(c).



          2.15 General Provisions Regarding Payments.




               (a) All payments by any Credit Party of principal, interest, fees and other Obligations shall
be made in Dollars in same day funds, without, recoupment, setoff, counterclaim or other defense
free of any restriction or condition, and delivered to Borrowing Base Agent (with respect to
Revolving Loans) and Administrative Agent (with respect to Term Loans) not later than 12:00 p.m.
(New York City time) on the date due to Borrowing Base Agent’s Account or Administrative Agent’s
Account, as applicable, for the account of Lenders; funds received by Borrowing Base Agent or
Administrative Agent, as applicable, after that time on such due date shall be deemed to have been
paid on the next Business Day.



               (b) All payments in respect of the principal amount of any Loan (other than voluntary
prepayments of Revolving Loans) shall be accompanied by payment of accrued interest on the
principal amount being repaid or prepaid, and all commitment fees and other amounts (including
those amounts specified in the Fee Letter) payable with respect to the principal amount being
repaid or prepaid.



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               (c) Borrowing Base Agent or Administrative Agent, as applicable, shall promptly distribute to
each Lender at such address as such Lender shall indicate in writing, such Lender’s applicable Pro
Rata Share of all payments and prepayments of principal and interest due hereunder, together with
all other amounts due thereto, including all fees payable with respect thereto, to the extent
received by Borrowing Base Agent or the Administrative Agent, as applicable.



               (d) Notwithstanding the foregoing provisions hereof, if any Conversion/ Continuation Notice is
withdrawn as to any Affected Lender or if any Affected Lender makes Base Rate Loans in lieu of its
Pro Rata Share of any LIBOR Rate Loans, Borrowing Base Agent or Administrative Agent, as
applicable, shall give effect thereto in apportioning payments received thereafter.



               (e) Subject to the provisos set forth in the definition of “Interest Period,” whenever any
payment to be made hereunder shall be stated to be due on a day that is not a Business Day, such
payment shall be made on the next succeeding Business Day and such extension of time shall be
included in the computation of the payment of interest hereunder or of the commitment fees
hereunder.



               (f) Company hereby authorizes Borrowing Base Agent to charge Company’s accounts with Borrowing
Base Agent or any of its Affiliates in order to cause timely payment to be made to Borrowing Base
Agent of all principal, interest, fees and expenses with respect to the Revolving Loans due
hereunder (subject to sufficient funds being available in its accounts for that purpose). The
Lenders and the Borrower also hereby authorize the Borrowing Base Agent to, and the Borrowing Base
Agent may, from time to time, charge the Borrowing Base Agent Loan Account of the Borrower with any
amount due and payable by the Borrower with respect to the Revolving Loans under any Credit
Document. Each of the Lenders and the Company agrees that the Borrowing Base Agent shall have the
right to make such charges whether or not any Default or Event of Default shall have occurred and
be continuing or whether any of the conditions precedent in Section 3.2 have been satisfied. Any
amount charged to the Borrowing Base Agent Loan Account of the Company shall be deemed a Revolving
Loan hereunder made by the Lenders to the Company, funded by the Borrowing Base Agent on behalf of
the Lenders and subject to Section 2.2 of this Agreement. The Lenders and the Company confirm that
any charges which the Borrowing Base Agent may so make to the Borrowing Base Agent Loan Account of
the Company as herein provided will be made as an accommodation to the Borrower and solely at the
Borrowing Base Agent’s discretion, provided that, in the absence of a continuing Event of
Default, the Borrowing Base Agent shall from time to time upon the request of the Collateral Agent,
charge the Borrowing Base Agent Loan Account of the Company with any amount due and payable under
any Credit Document. Each Borrower hereby authorizes Administrative Agent to charge the Applicable
Borrower’s accounts with Administrative Agent or any of its Affiliates in order to cause timely
payment to be made to Administrative Agent of all principal, interest, fees and expenses with
respect to the Tranche A Term Loans, or the Tranche A-1 Term Loans, as the case may be, due
hereunder (subject to sufficient funds being available in its accounts for that purpose). The
Lenders and each Borrower also hereby authorize the Administrative Agent to, and the Administrative
Agent may, from time to time, charge the Administrative Agent Loan Account of the Applicable
Borrower with any amount due and payable by such Borrower with respect to the Tranche A Term Loans
or the Tranche A-1 Term



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Loans, as the case may be, under any Credit Document. Each of the Lenders and each Borrower
agrees that the Administrative Agent shall have the right to make such charges whether or not any
Default or Event of Default shall have occurred and be continuing or whether any of the conditions
precedent in Section 3.2 have been satisfied. Any amount charged to the Administrative Agent Loan
Account of the Applicable Borrower shall be deemed an Obligation with respect to the Tranche A Term
Loan hereunder payable by the Company to the Lenders holding the Tranche A Term Loans or with
respect to the Tranche A-1 Term Loan hereunder payable by the SPV to the Lenders holding the
Tranche A-1 Term Loans, as the case may be. The Lenders and each Borrower confirm that any charges
which the Administrative Agent may so make to the Administrative Agent Loan Account of the
Applicable Borrower as herein provided will be made as an accommodation to such Borrower and solely
at the Administrative Agent’s discretion, provided that the Administrative Agent shall from time to
time upon the request of the Collateral Agent, charge the Administrative Agent Loan Account of the
Applicable Borrower with any amount due and payable under any Credit Document. Notwithstanding the
foregoing, the Administrative Agent shall be permitted to direct the Borrowing Base Agent to, and
so long as no Event of Default has occurred and is continuing, the Borrowing Base Agent shall,
charge the Borrowing Base Agent Loan Account with any amount due and payable by the Applicable
Borrower with respect to the Tranche A Term Loans or the Tranche A-1 Term Loans, as the case may
be, under any Credit Document. Any amount charged to the Borrowing Base Agent Loan Account of the
Company pursuant to this Agreement shall be deemed a Revolving Loan hereunder made by the Lenders
to the Company, funded by the Borrowing Base Agent on behalf of the Lenders and subject to Section
2.2 of this Agreement.



               (g) Borrowing Base Agent or Administrative Agent, as applicable, shall deem any payment by or
on behalf of any Credit Party hereunder that is not made in same day funds prior to 12:00 p.m.
(New York City time) to be a non-conforming payment. Any such payment shall not be deemed to have
been received by Borrowing Base Agent or Administrative Agent, as applicable, until the later of
(i) the time such funds become available funds, and (ii) the applicable next Business Day.
Interest and Letter of Credit fees shall continue to accrue on any principal or Letter of Credit
outstanding as to which a non-conforming payment is made until such funds become available funds
(but in no event less than the period from the date of such payment to the next succeeding
applicable Business Day) at the Default Rate determined pursuant to Section 2.9 from the date such
amount was due and payable until the date such amount is paid in full.



               (h) Notwithstanding anything to the contrary contained in this Agreement or any other Credit
Document, after the occurrence and during the continuance of an Event of Default, the Borrowing
Base Agent or the Administrative Agent, as applicable, may, and upon the direction of the Requisite
Lenders shall, apply all payments in respect of any Obligations and all proceeds of the Collateral,
as follows:



                    (i) first, ratably to pay the Obligations in respect of any fees (other than any
prepayment fees), expense reimbursements, indemnities and other amounts then due to the Agents and
the Borrowing Base Agent until paid in full;



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                    (ii) second, ratably to pay the Obligations in respect of any fees (other than any
prepayment fees), expense reimbursements and indemnities then due to the Lenders until paid in
full;



                    (iii) third, ratably to pay interest then due and payable in respect of the Agent
Advances until paid in full;



                    (iv) fourth, ratably to pay principal of the Agent Advances then due and payable until
paid in full;



                    (v) fifth, to pay interest due in respect of the Revolving Loans until paid in full;



                    (vi) sixth, to pay principal of the Revolving Loans until paid in full;
provided, that (1) the Revolving Commitments are permanently reduced or the Borrowing Base
Agent imposes a permanent block thereon, and (2) to the extent such payment constitutes the
proceeds of Borrowing Base Assets, the Borrowing Base Agent imposes a permanent block against the
Borrowing Base, in each case, on a dollar-for-dollar basis with such prepayment;



                    (vii) seventh, ratably to pay the Letter of Credit Usage (or, to the extent such
Obligations relate to Letters of Credit then outstanding, to provide cash collateral in respect of
such Obligations, to be held as security for Borrower’s reimbursement Obligations in respect of
such Letters of Credit under arrangements reasonably acceptable to Borrowing Base Agent, equal to
one hundred and five percent (105%) of the Letter of Credit Usage at any time prior to the stated
expiry of all outstanding Letters of Credit) until paid in full;



                    (viii) eighth, ratably to pay any prepayment fees then due and payable;



                    (ix) ninth, ratably to pay interest due in respect of the Term Loans until paid in
full;



                    (x) tenth, ratably to pay principal of the Term Loans until paid in full; and



                    (xi) eleventh, to the ratable payment of all other Obligations then due and payable.



               (i) In each instance, so long as no Event of Default has occurred and is continuing, Section
2.15(h) shall not be deemed to apply to any payment by or on behalf of such Credit Party that is
specified by such Credit Party to the Borrowing Base Agent or the Administrative Agent, as
applicable, to be for the payment or prepayment of any Obligations then due and payable under any
provision of this Agreement.



               (j) For purposes of Section 2.15(h), “paid in full” with respect to interest and fees shall
include interest and fees accrued after the commencement of any insolvency proceeding irrespective
of whether a claim for such interest and fees is allowable in such insolvency proceeding.



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               (k) In the event of a direct conflict between the priority provisions of Section 2.15(h) and
other provisions contained in any other Credit Document, it is the intention of the parties hereto
that both such priority provisions in such documents shall be read together and construed, to the
fullest extent possible, to be in concert with each other. In the event of any actual,
irreconcilable conflict that cannot be resolved as aforesaid, the terms and provisions of Section
2.15(h) shall control and govern.



          2.16 Ratable Sharing. Lenders hereby agree among themselves that, except as otherwise provided in the
Collateral Documents with respect to amounts realized from the exercise of rights with respect to
Liens on the Collateral, and except as set forth in Section 2.15, if any of them shall, whether by
voluntary payment (other than a voluntary prepayment of Loans made and applied in accordance with
the terms hereof), through the exercise of any right of set off or banker’s lien, by counterclaim
or cross action or by the enforcement of any right under the Credit Documents or otherwise, or as
adequate protection of a deposit treated as cash collateral under the Bankruptcy Code, receive
payment or reduction of a proportion of the aggregate amount of principal, interest, amounts
payable in respect of Letters of Credit, fees and other amounts then due and owing to such Lender
hereunder or under the other Credit Documents (collectively, the “Aggregate Amounts Due” to such
Lender) which is greater than the proportion received by any other Lender having Loans of the same
Class in respect of the Aggregate Amounts Due to such other Lender having Loans of the same Class,
then the Lender receiving such proportionately greater payment shall (a) notify each Agent,
Borrowing Base Agent and each other Lender of the receipt of such payment and (b) apply a portion
of such payment to purchase participations (which it shall be deemed to have purchased from each
seller of a participation simultaneously upon the receipt by such seller of its portion of such
payment) in the Aggregate Amounts Due to the other Lenders so that all such recoveries of Aggregate
Amounts Due shall be shared by all Lenders in proportion to the Aggregate Amounts Due to them;
provided, that if all or part of such proportionately greater payment received by such
purchasing Lender is thereafter recovered from such Lender upon the bankruptcy or reorganization of
any Credit Party or otherwise, those purchases to that extent shall be rescinded and the purchase
prices paid for such participations shall be returned to such purchasing Lender ratably to the
extent of such recovery, but without interest. Each Credit Party expressly consents to the
foregoing arrangement and agrees that any holder of a participation so purchased may exercise any
and all rights of banker’s lien, set off or counterclaim with respect to any and all monies owing
by such Credit Party to that holder with respect thereto as fully as if that holder were owed the
amount of the participation held by that holder.




          2.17 Making or Maintaining LIBOR Rate Loans.




               (a) Inability to Determine Applicable Interest Rate. In the event that Borrowing Base Agent or
Administrative Agent shall have determined (which determination shall be final and conclusive and
binding upon all parties hereto), on any Interest Rate Determination Date with respect to any LIBOR
Rate Loans, that by reason of circumstances affecting the London interbank market adequate and fair
means do not exist for ascertaining the interest rate applicable to such LIBOR Rate Loans on the
basis provided for in the definition of Adjusted LIBOR Rate, Borrowing Base Agent or Administrative
Agent shall on such date give notice (by telefacsimile or by telephone confirmed in writing) to
Borrowers and each Lender of such determination, whereupon (i) no Loans may be made as, or
converted to, LIBOR Rate



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Loans until such time as Borrowing Base Agent or Administrative Agent notifies Borrowers and
Lenders that the circumstances giving rise to such notice no longer exist, and (ii) any Funding
Notice or Conversion/Continuation Notice given by any Borrower with respect to the Loans in respect
of which such determination was made shall be deemed to be rescinded by such Borrower.



               (b) Illegality or Impracticability of LIBOR Rate Loans. In the event that on any date any
Lender shall have determined (which determination shall be final and conclusive and binding upon
all parties hereto but shall be made only after consultation with each Borrower and Borrowing Base
Agent or Administrative Agent) that the making, maintaining or continuation of its LIBOR Rate Loans
(i) has become unlawful as a result of compliance by such Lender in good faith with any law,
treaty, governmental rule, regulation, guideline or order (or would conflict with any such treaty,
governmental rule, regulation, guideline or order not having the force of law even though the
failure to comply therewith would not be unlawful), or (ii) has become impracticable, as a result
of contingencies occurring after the date hereof which materially and adversely affect the London
interbank market or the position of such Lender in that market, then, and in any such event, such
Lender shall be an “Affected Lender” and it shall on that day give notice (by telefacsimile or by
telephone confirmed in writing) to each Borrower and Borrowing Base Agent or Administrative Agent
of such determination (which notice Borrowing Base Agent or Administrative Agent shall promptly
transmit to each other Lender). Thereafter (1) the obligation of the Affected Lender to make Loans
as, or to convert Loans to, LIBOR Rate Loans shall be suspended until such notice shall be
withdrawn by the Affected Lender, (2) to the extent such determination by the Affected Lender
relates to a LIBOR Rate Loan then being requested by any Borrower pursuant to a Funding Notice or a
Conversion/Continuation Notice, the Affected Lender shall make such Loan as (or continue such Loan
as or convert such Loan to, as the case may be) a Base Rate Loan, (3) the Affected Lender’s
obligation to maintain its outstanding LIBOR Rate Loans (the “Affected Loans”) shall be terminated
at the earlier to occur of the expiration of the Interest Period then in effect with respect to the
Affected Loans or when required by law, and (4) the Affected Loans shall automatically convert into
Base Rate Loans on the date of such termination. The Applicable Borrower shall pay accrued
interest on the amount so converted and all amounts due under Section 2.17(c) in accordance with
the terms thereof due to such conversion. Notwithstanding the foregoing, to the extent a
determination by an Affected Lender as described above relates to a LIBOR Rate Loan then being
requested by a Borrower pursuant to a Funding Notice or a Conversion/Continuation Notice, such
Borrower shall have the option, subject to the provisions of Section 2.17(c), to rescind such
Funding Notice or Conversion/Continuation Notice as to all Lenders by giving notice (by
telefacsimile or by telephone confirmed in writing) to Borrowing Base Agent or Administrative Agent
of such rescission on the date on which the Affected Lender gives notice of its determination as
described above (which notice of rescission Borrowing Base Agent or Administrative Agent shall
promptly transmit to each other Lender). Except as provided in the immediately preceding sentence,
nothing in this Section 2.17(b) shall affect the obligation of any Lender other than an Affected
Lender to make or maintain Loans as, or to convert Loans to, LIBOR Rate Loans in accordance with
the terms hereof.



               (c) Compensation for Breakage or Non Commencement of Interest Periods. The Applicable Borrower
shall compensate each Lender, upon written request by such Lender (which request shall set forth
the basis for requesting such amounts), for all reasonable losses,



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expenses and liabilities (including any interest paid or calculated to be due and payable by such
Lender to Lenders of funds borrowed by it to make or carry its LIBOR Rate Loans and any loss,
expense or liability sustained by such Lender in connection with the liquidation or re employment
of such funds but excluding loss of anticipated profits) which such Lender may sustain: (i) if for
any reason (other than a default by such Lender) a borrowing of any LIBOR Rate Loan does not occur
on a date specified therefor in a Funding Notice or a telephonic request for borrowing, or a
conversion to or continuation of any LIBOR Rate Loan does not occur on a date specified therefor in
a Conversion/Continuation Notice or a telephonic request for conversion or continuation; (ii) if
any prepayment or other principal payment of, or any conversion of, any of its LIBOR Rate Loans
occurs on any day other than the last day of an Interest Period applicable to that Loan (whether
voluntary, mandatory, automatic, by reason of acceleration, or otherwise); or (iii) if any
prepayment of any of its LIBOR Rate Loans is not made on any date specified in a notice of
prepayment given by such Borrower.



               (d) Booking of LIBOR Rate Loans. Any Lender may make, carry or transfer LIBOR Rate Loans at,
to, or for the account of any of its branch offices or the office of an Affiliate of such Lender.



               (e) Assumptions Concerning Funding of LIBOR Rate Loans. Calculation of all amounts payable to
a Lender under this Section 2.17 and under Section 2.18 shall be made as though such Lender had
actually funded each of its relevant LIBOR Rate Loans through the purchase of a LIBOR deposit
bearing interest at the rate obtained pursuant to clause (i) of the definition of Adjusted LIBOR
Rate in an amount equal to the amount of such LIBOR Rate Loan and having a maturity comparable to
the relevant Interest Period and through the transfer of such LIBOR deposit from an offshore office
of such Lender to a domestic office of such Lender in the United States of America; provided,
however, each Lender may fund each of its LIBOR Rate Loans in any manner it sees fit and the
foregoing assumptions shall be utilized only for the purposes of calculating amounts payable under
this Section 2.17 and under Section 2.18.



          2.18 Increased Costs; Capital Adequacy; Reserves on LIBOR Rate Loans.




               (a) Compensation For Increased Costs and Taxes. Subject to the provisions of Section 2.19
(which shall be controlling with respect to the matters covered thereby), in the event that any
Lender (which term shall include Issuing Bank for purposes of this Section 2.18(a)) shall determine
(which determination shall, absent manifest error, be final and conclusive and binding upon all
parties hereto) that any law, treaty or governmental rule, regulation or order, or any change
therein or in the interpretation, administration or application thereof (including the introduction
of any new law, treaty or governmental rule, regulation or order), or any determination of a court
or Governmental Authority, in each case that becomes effective after the date hereof, or compliance
by such Lender with any guideline, request or directive issued or made after the date hereof by any
central bank or other governmental or quasi Governmental Authority (whether or not having the force
of law): (i) subjects such Lender (or its applicable lending office) to any additional Tax (other
than any Tax on the overall net income of such Lender) with respect to this Agreement or any of the
other Credit Documents or any of its obligations hereunder or thereunder or any payments to such
Lender (or its applicable lending office) of principal, interest, fees or any other amount payable
hereunder; (ii) imposes, modifies or holds applicable any reserve (including any marginal,
emergency, supplemental, special or



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other reserve), special deposit, compulsory loan, FDIC insurance or similar requirement against
assets held by, or deposits or other liabilities in or for the account of, or advances or loans by,
or other credit extended by, or any other acquisition of funds by, any office of such Lender (other
than any such reserve or other requirements with respect to LIBOR Rate Loans that are reflected in
the definition of Adjusted LIBOR Rate); or (iii) imposes any other condition (other than with
respect to a Tax matter) on or affecting such Lender (or its applicable lending office) or its
obligations hereunder or the London interbank market; and the result of any of the foregoing is to
increase the cost to such Lender of agreeing to make, making or maintaining Loans hereunder or to
reduce any amount received or receivable by such Lender (or its applicable lending office) with
respect thereto; then, in any such case, the Applicable Borrower shall promptly pay to such Lender,
upon receipt of the statement referred to in the next sentence, such additional amount or amounts
(in the form of an increased rate of, or a different method of calculating, interest or otherwise
as such Lender in its reasonable discretion shall determine) as may be necessary to compensate such
Lender for any such increased cost or reduction in amounts received or receivable hereunder. Such
Lender shall deliver to the Applicable Borrower (with a copy to Borrowing Base Agent and
Administrative Agent) a written statement, setting forth in reasonable detail the basis for
calculating the additional amounts owed to such Lender under this Section 2.18(a), which statement
shall be conclusive and binding upon all parties hereto absent manifest error.



               (b) Capital Adequacy Adjustment. In the event that any Lender (which term shall include
Issuing Bank for purposes of this Section 2.18(b)) shall have determined that the adoption,
effectiveness, phase in or applicability after the Closing Date of any law, rule or regulation (or
any provision thereof) regarding capital adequacy, or any change therein or in the interpretation
or administration thereof by any Governmental Authority, central bank or comparable agency charged
with the interpretation or administration thereof, or compliance by any Lender (or its applicable
lending office) with any guideline, request or directive regarding capital adequacy (whether or not
having the force of law) of any such Governmental Authority, central bank or comparable agency, has
or would have the effect of reducing the rate of return on the capital of such Lender or any
corporation controlling such Lender as a consequence of, or with reference to, such Lender’s Loans
or Revolving Commitments or Letters of Credit, or participations therein or other obligations
hereunder with respect to the Loans or the Letters of Credit to a level below that which such
Lender or such controlling corporation could have achieved but for such adoption, effectiveness,
phase in, applicability, change or compliance (taking into consideration the policies of such
Lender or such controlling corporation with regard to capital adequacy), then from time to time,
within five Business Days after receipt by the Applicable Borrower from such Lender of the
statement referred to in the next sentence, the Applicable Borrower shall pay to such Lender such
additional amount or amounts as will compensate such Lender or such controlling corporation on an
after tax basis for such reduction. Such Lender shall deliver to the Applicable Borrower (with a
copy to Borrowing Base Agent and Administrative Agent) a written statement, setting forth in
reasonable detail the basis for calculating the additional amounts owed to Lender under this
Section 2.18(b), which statement shall be conclusive and binding upon all parties hereto absent
manifest error.



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          2.19 Taxes; Withholding, etc.




               (a) Payments to Be Free and Clear. All sums payable by any Credit Party hereunder and under
the other Credit Documents shall (except to the extent required by law) be paid free and clear of,
and without any deduction or withholding on account of, any Tax imposed, levied, collected,
withheld or assessed by or within the United States of America or any political subdivision in or
of the United States of America or any other jurisdiction from or to which a payment is made by or
on behalf of any Credit Party or by any federation or organization of which the United States of
America or any such jurisdiction is a member at the time of payment.



               (b) Withholding of Taxes. If any Credit Party or any other Person is required by law to make
any deduction or withholding on account of any Tax from any sum paid or payable under any of the
Credit Documents: (i) the Applicable Borrower shall notify Borrowing Base Agent and Administrative
Agent of any such requirement or any change in any such requirement as soon as Company or any of
its Subsidiaries becomes aware of it; (ii) Company shall pay any such Tax before the date on which
penalties attach thereto, such payment to be made (if the liability to pay is imposed on any Credit
Party) for its own account or (if that liability is imposed on Borrowing Base Agent, Administrative
Agent or such Lender, as the case may be) on behalf of and in the name of Borrowing Base Agent,
Administrative Agent or such Lender; (iii) the sum payable by such Credit Party in respect of which
the relevant deduction, withholding or payment, is required shall be increased to the extent
necessary to ensure that, after the making of that deduction, withholding or payment of all Taxes,
Borrowing Base Agent, Administrative Agent or such Lender (which term shall include Issuing Bank
for purposes of this Section 2.19(b)), as the case may be, and each of their Tax Related Persons
receives on the due date and retains a net sum equal to what it would have received and retained
had no such deduction, withholding or payment been required or made; and (iv) within thirty (30)
days after making any such deduction or withholding, and within thirty (30) days after the due date
of payment of any Tax which it is required by clause (ii) above to pay, the Applicable Borrower
shall deliver to Borrowing Base Agent and Administrative Agent evidence satisfactory to the other
affected parties of such deduction, withholding and payment and of the remittance thereof to the
relevant taxing or other authority.



               (c) Other Taxes. In addition, the Credit Parties shall pay all Other Taxes to the relevant
Governmental Authorities in accordance with applicable law. The Credit Parties shall deliver to
Borrowing Base Agent official receipts or other evidence of such payment reasonably satisfactory to
Borrowing Base Agent in respect of any Taxes or Other Taxes payable hereunder promptly after
payment of such Taxes or Other Taxes.



               (d) Indemnification. The Credit Parties shall indemnify each Agent, Borrowing Base Agent and
each Lender (which term shall include Issuing Bank for purposes of this Section 2.19(d)) within ten
(10) days after written demand therefor, for the full amount of any Taxes paid or incurred by such
Agent, Borrowing Base Agent or such Lender or their respective Tax Related Persons, as the case may
be, relating to, arising out of, or in connection with any Credit Document or any payment or
transaction contemplated hereby or thereby, whether or not such Taxes were correctly or legally
imposed or asserted by the relevant Governmental Authority; provided, however, that
the Credit Parties shall not be required to indemnify the Agents, Borrowing Base Agent, Lenders and
Participants for any Taxes that



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would be excluded from a gross-up under Section 2.19(b) or to the extent such Taxes are covered by
Sections 2.19(b) or (c). Such indemnification shall be made on an after-Tax basis, such that after
all required deductions and payments of all Taxes (including income Taxes and deductions applicable
to amounts payable under this Section 2.19(d)) and payment of all reasonable expenses, the Agents,
the Borrowing Base Agent, the Lenders and each of their respective Tax Related Persons receives and
retains an amount equal to the sum it would have received and retained had it not paid or incurred
or been subject to such Taxes. A certificate from the relevant Lender or Agent, setting forth in
reasonable detail the basis and calculation of such Taxes shall be conclusive, absent manifest
error.



               (e) Evidence of Exemption From U.S. Withholding Tax.



                    (i) Each Lender (which term shall include Issuing Bank for purposes of this Section 2.19(e))
that is not a United States Person (as such term is defined in Section 7701(a)(30) of the Internal
Revenue Code) for U.S. Federal income tax purposes (a “Non-U.S. Lender”) shall deliver to
Borrowing Base Agent and Administrative Agent for transmission to the Applicable Borrower, on or
prior to the Closing Date (in the case of each Lender listed on the signature pages hereof on the
Closing Date) or on or prior to the date of the Assignment Agreement pursuant to which it becomes a
Lender (in the case of each other Lender), and at such other times as may be necessary in the
determination of the Applicable Borrower or Borrowing Base Agent or Administrative Agent (each in
the reasonable exercise of its discretion), (i) two original copies of Internal Revenue Service
Form W-8BEN, W-8IMY or W-8ECI (or any successor forms), properly completed and duly executed by
such Lender, and such other documentation required under the Internal Revenue Code and reasonably
requested by the Applicable Borrower to establish that such Lender is not subject to deduction or
withholding of United States Federal income tax with respect to any payments to such Lender of
principal, interest, fees or other amounts payable under any of the Credit Documents or is subject
to deduction or withholding at a reduced rate, or (ii) if such Lender is not a "bank” or other
Person described in Section 881(c)(3) of the Internal Revenue Code and cannot deliver Internal
Revenue Service Form W-8ECI pursuant to clause (i) above, a Certificate Regarding Non Bank Status
together with two original copies of Internal Revenue Service Form W-8BEN (or any successor form),
properly completed and duly executed by such Lender, and such other documentation required under
the Internal Revenue Code and reasonably requested by the Applicable Borrower to establish that
such Lender is not subject to deduction or withholding of United States Federal income tax with
respect to any payments to such Lender of interest payable under any of the Credit Documents. Each
Lender required to deliver any forms, certificates or other evidence with respect to United States
Federal income tax withholding matters pursuant to this Section 2.19(e) hereby agrees, from time to
time after the initial delivery by such Lender of such forms, certificates or other evidence,
whenever a lapse in time or change in circumstances renders such forms, certificates or other
evidence obsolete or inaccurate in any material respect, that such Lender shall promptly deliver to
Borrowing Base Agent and Administrative Agent for transmission to the Applicable Borrower two new
original copies of Internal Revenue Service Form W-8BEN, W-8IMY or W-8ECI, or a Certificate
Regarding Non Bank Status and two original copies of Internal Revenue Service Form W-8BEN (or any
successor form), as the case may be, properly completed and duly executed by such Lender, and such
other documentation required under the Internal Revenue Code and reasonably requested by the
Applicable Borrower to confirm or establish that such Lender is not subject to deduction or
withholding of United States Federal income tax with respect to payments to such Lender under the
Credit Documents



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or is subject to deduction or withholding at a reduced rate, or notify Borrowing Base Agent,
Administrative Agent and the Applicable Borrower of its inability to deliver any such forms,
certificates or other evidence. Nothing in this Section 2.19 shall be construed to require a
Lender, Agent, Participant or Issuing Bank to provide any forms or documentation that it is not
legally entitled to provide.



                    (ii) Each Lender (which term shall include Issuing Bank for purposes of this Section 2.19(e))
that is a United States person (as such term is defined in Section 7701(a)(30) of the Internal
Revenue Code) for U.S. Federal income tax purposes (a “U.S. Lender”) shall deliver to
Administrative agent for transmission to the Applicable Borrower, on or prior to the Closing Date
(in the case of each Lender listed on the signature pages hereof on the Closing Date) or on or
prior to the date of the Assignment Agreement pursuant to which it becomes a Lender (in the case of
each other Lender), and at such other times as may be necessary in the determination of the
Applicable Borrower or Administrative Agent (each in the reasonable exercise of its discretion),
two original copies of Internal Revenue Service Form W-9 (or any successor forms), properly
completed and duly executed by such Lender, and such other documentation required under the
Internal Revenue Code and reasonably requested by the Applicable Borrower to establish that such
Lender is not subject to backup withholding under Section 3406 of the Internal Revenue Code with
respect to any payments to such Lender of principal, interest, fees or other amounts payable under
any of the Credit documents.



                    (iii) No Borrower shall be required to indemnify any Lender, or pay any additional amounts to
any Lender, in respect of United States Federal withholding tax pursuant to Section 2.19(b)(iii) to
the extent that:



                         (A) the obligation to withhold amounts with respect to United States Federal withholding tax
existed on the date such Non-U.S. Lender first became a party to this Agreement or to an applicable
Assignment Agreement; provided, however, that this clause (iii) shall not apply to
a Lender which was an Eligible Assignee to the extent the indemnity payment or additional amounts
such Non-U.S. Lender would be entitled to receive (without regard to this clause (iii)) do not
exceed the indemnity payment or additional amounts that the person making the assignment to such
Non-U.S. Lender would have been entitled to receive in the absence of such assignment,



                         (B) the obligation to pay such additional amounts would not have arisen but for a failure by
such Non-U.S. Lender or U.S. Lender to comply with Section 2.19(e)(i) or Section 2.19(e)(ii) above,
as applicable, provided, that if any Lender hereunder shall have satisfied the
requirements of Section 2.19(e)(i) or Section 2.19(e)(ii) above on the Closing Date or on the date
of the Assignment Agreement pursuant to which it became a Lender, as applicable, nothing in Section
2.19(e)(iii) shall relieve any Borrower of its obligation to pay any additional amounts pursuant to
this Section 2.19 in the event that, as a result of any change in any applicable law, treaty or
governmental rule, regulation or order, or any change in the interpretation, administration or
application thereof, such Lender is no longer properly entitled to deliver forms, certificates or
other evidence at a subsequent date establishing the fact that such Lender is not subject to
withholding or backup withholding as described herein, or



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               (C) the obligation to pay such additional amounts would not have risen but for the fact that
such Non-U.S. Lender becomes a bank or any other person described in Section 871(h)(3)(B) or
Section 881(c)(3) (or any successor provisions) of the Internal Revenue Code on any date after such
Non-U.S. Lender becomes a party to this Agreement.



          2.20 Obligation to Mitigate. Each Lender (which term shall include Issuing Bank for purposes of this
Section 2.20) agrees that, as promptly as practicable after the officer of such Lender responsible
for administering its Loans or Letters of Credit, as the case may be, becomes aware of the
occurrence of an event or the existence of a condition that would cause such Lender to become an
Affected Lender or that would entitle such Lender to receive payments under Section 2.17, 2.18 or
2.19, it will, to the extent not inconsistent with the internal policies of such Lender and any
applicable legal or regulatory restrictions, use reasonable efforts to (a) make, issue, fund or
maintain its Credit Extensions, including any Affected Loans, through another office of such
Lender, or (b) take such other measures as such Lender may deem reasonable, if as a result thereof
the circumstances which would cause such Lender to be an Affected Lender would cease to exist or
the additional amounts which would otherwise be required to be paid to such Lender pursuant to
Section 2.17, 2.18 or 2.19 would be materially reduced and if, as determined by such Lender in its
reasonable discretion, the making, issuing, funding or maintaining of such Revolving Commitments,
Loans or Letters of Credit through such other office or in accordance with such other measures, as
the case may be, would not otherwise adversely affect such Revolving Commitments, Loans or Letters
of Credit or the interests of such Lender; provided, that such Lender will not be obligated
to utilize such other office pursuant to this Section 2.20 unless the Applicable Borrower agrees to
pay all costs and expenses incurred by such Lender as a result of utilizing such other office as
described above. A certificate as to the amount of any such expenses payable by the Applicable
Borrower pursuant to this Section 2.20 (setting forth in reasonable detail the basis for requesting
such amount) submitted by such Lender to the Applicable Borrower (with a copy to Borrowing Base
Agent and Administrative Agent) shall be conclusive absent manifest error.




          2.21 Defaulting Lenders. Anything contained herein to the contrary notwithstanding, in the event that
any Lender other than at the direction or request of any regulatory agency or authority defaults (a
“Defaulting Lender”) in its obligation to fund (a “Funding Default”) any Revolving Loan, Tranche A
Term Loan or its portion of any unreimbursed payment under Section 2.3(e) (in each case, a
“Defaulted Loan”), then (a) during any Default Period with respect to such Defaulting Lender, such
Defaulting Lender shall be deemed not to be a “Lender” for purposes of voting on any matters
(including the granting of any consents or waivers) with respect to any of the Credit Documents;
(b) to the extent permitted by applicable law, until such time as the Default Excess with respect
to such Defaulting Lender shall have been reduced to zero, any payment with respect to the
Revolving Loans or Term Loans shall, if Borrowing Base Agent or Administrative Agent so directs at
the time of making such payment, be applied to the Revolving Loans or Term Loans of other Lenders
as if such Defaulting Lender had no Revolving Loans or Term Loans outstanding and the Revolving
Exposure and the outstanding Term Loan Loans of such Defaulting Lender were zero, it being
understood and agreed that the Applicable Borrower shall be entitled to retain any portion of any
mandatory payment of the Revolving Loans or Term Loans that is not paid to such Defaulting Lender
solely as a result of the operation of the provisions of this clause (b); (c) such Defaulting
Lender’s Revolving Commitment and outstanding Revolving Loans and such Defaulting Lender’s Pro Rata
Share of the Letter of


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Credit Usage shall be excluded for purposes of calculating the Revolving Commitment fee payable to
Lenders in respect of any day during any Default Period with respect to such Defaulting Lender, and
such Defaulting Lender shall not be entitled to receive any Revolving Commitment fee pursuant to
Section 2.10 with respect to such Defaulting Lender’s Revolving Commitment in respect of any
Default Period with respect to such Defaulting Lender; and (d) the Total Utilization of Revolving
Commitments as at any date of determination shall be calculated as if such Defaulting Lender had
funded all Defaulted Loans of such Defaulting Lender. No Revolving Commitment, Tranche A Term Loan
Commitment or Tranche A-1 Term Loan Commitment of any Lender shall be increased or otherwise
affected, and, except as otherwise expressly provided in this Section 2.21, performance by any
Credit Party of its obligations hereunder and the other Credit Documents shall not be excused or
otherwise modified as a result of any Funding Default or the operation of this Section 2.21. The
rights and remedies against a Defaulting Lender under this Section 2.21 are in addition to other
rights and remedies which the Credit Parties may have against such Defaulting Lender with respect
to any Funding Default and which Borrowing Base Agent, Administrative Agent or any Lender may have
against such Defaulting Lender with respect to any Funding Default.




          2.22 Removal or Replacement of a Lender. Anything contained herein to the contrary notwithstanding, in
the event that: (a) (i) any Lender (an “Increased Cost Lender”) shall give notice to the Borrowers
that such Lender is an Affected Lender or that such Lender is entitled to receive payments under
Section 2.17, 2.18 or 2.19, (ii) the circumstances which have caused such Lender to be an Affected
Lender or which entitle such Lender to receive such payments shall remain in effect, and (iii) such
Lender shall fail to withdraw such notice within five Business Days after any Borrower’s request
for such withdrawal; or (b) (i) any Lender shall become a Defaulting Lender, (ii) the Default
Period for such Defaulting Lender shall remain in effect, and (iii) such Defaulting Lender shall
fail to cure the default as a result of which it has become a Defaulting Lender within five
Business Days after any Borrower’s request that it cure such default; or (c) in connection with any
proposed amendment, modification, termination, waiver or consent with respect to any of the
provisions hereof as contemplated by Section 10.5(b), the consent of Administrative Agent and
Requisite Lenders shall have been obtained but the consent of one or more of such other Lenders
(each a “Non Consenting Lender”) whose consent is required shall not have been obtained; then, with
respect to each such Increased Cost Lender, Defaulting Lender or Non Consenting Lender (the
“Terminated Lender”), Administrative Agent may (which, in the case of an Increased-Cost Lender,
only after receiving written request from any Borrower to remove such Increased-Cost Lender), by
giving written notice to each Borrower and any Terminated Lender of its election to do so, elect to
cause such Terminated Lender (and such Terminated Lender hereby irrevocably agrees) to assign its
outstanding Loans and its Revolving Commitments, if any, in full to one or more Eligible Assignees
(each a “Replacement Lender”) in accordance with the provisions of Section 10.6 and Terminated
Lender shall pay any fees payable thereunder in connection with such assignment; provided,
that, (1) on the date of such assignment, the Replacement Lender shall pay to Terminated Lender an
amount equal to the sum of (A) an amount equal to the principal of, and all accrued interest on,
all outstanding Loans of the Terminated Lender, (B) an amount equal to all unreimbursed drawings
that have been funded by such Terminated Lender, together with all then unpaid interest with
respect thereto at such time and (C) an amount equal to all accrued, but theretofore unpaid fees
owing to such Terminated Lender pursuant to Section 2.10; (2) on the date of such assignment, the
Applicable Borrower shall pay any amounts payable to such





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Terminated Lender pursuant to Section 2.17, 2.18 or 2.19; and (3) in the event such Terminated
Lender is a Non Consenting Lender, each Replacement Lender shall consent, at the time of such
assignment, to each matter in respect of which such Terminated Lender was a Non Consenting Lender;
provided, Administrative Agent may not make such election with respect to any Terminated
Lender that is (or whose Affiliate is) also an Issuing Bank unless, prior to the effectiveness of
such election, Administrative Agent shall have caused each outstanding Letter of Credit issued
thereby to be cancelled. Upon the prepayment of all amounts owing to any Terminated Lender and the
termination of such Terminated Lender’s Revolving Commitments, if any, such Terminated Lender shall
no longer constitute a “Lender” for purposes hereof; provided, that any rights of such
Terminated Lender to indemnification hereunder shall survive as to such Terminated Lender.




     SECTION 3. CONDITIONS PRECEDENT



          3.1 Closing Date. The obligation of each Lender to make any Loan or Administrative Agent to procure
any Letter of Credit on the Closing Date is subject to the satisfaction, or waiver in accordance
with Section 10.5, of the following conditions on or before the Closing Date:




               (a) Credit Documents. Administrative Agent shall have received sufficient copies of each
Credit Document originally executed and delivered by each applicable Credit Party for each Lender,
which Credit Documents shall be reasonably satisfactory in form and substance to the Agents and the
Lenders, and each of the conditions precedent contained therein shall have been satisfied in a
manner satisfactory to the Agents and the Lenders.



               (b) Organizational Documents; Incumbency. Administrative Agent shall have received (i)
sufficient copies of each Organizational Document of each Credit Party, as applicable, and, to the
extent applicable, certified as of a recent date by the appropriate governmental official, for each
Lender, each dated the Closing Date or a recent date prior thereto; (ii) signature and incumbency
certificates of the officers of such Person executing the Credit Documents to which it is a party;
(iii) resolutions of the Board of Directors or similar governing body of each Credit Party and
documents evidencing all other required corporate action, if any, in each case, approving and
authorizing the execution, delivery and performance of this Agreement and the other Credit
Documents to which it is a party or by which it or its assets may be bound as of the Closing Date,
certified as of the Closing Date by its secretary or an assistant secretary as being in full force
and effect without modification or amendment; (iv) a good standing certificate (or the non-U.S.
equivalent thereof) from the applicable Governmental Authority of each Credit Party’s jurisdiction
of incorporation, organization or formation and in each jurisdiction in which it is qualified as a
foreign corporation or other entity to do business, each dated a recent date prior to the Closing
Date; and (v) such other documents as Administrative Agent may reasonably request.



               (c) Organizational and Capital Structure. The organizational structure and capital structure
of Company and its Subsidiaries shall be as set forth on Schedule 4.1.



               (d) Existing Indebtedness. On or prior to the Closing Date, Company shall have delivered to
Administrative Agent and Lenders copies of all documents related to all



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Existing Indebtedness. On the Closing Date, Company and its Subsidiaries shall have (i) repaid in
full all Existing Indebtedness under the Existing Credit Documents, (ii) terminated any commitments
to lend or make other extensions of credit thereunder, (iii) delivered to Administrative Agent all
documents or instruments necessary to release all Liens securing Existing Indebtedness or other
obligations of Company and its Subsidiaries under the Existing Credit Documents on the Closing Date
and with respect to the foregoing, Agents shall have received satisfactory evidence that all
obligations under the Existing Indebtedness (other than Indebtedness constituting Indebtedness
permitted under Section 6.01) have been paid in full and satisfied, all commitments thereunder have
terminated, all promissory notes issued thereunder have been cancelled and all Liens in respect
thereof have been released, and (iv) made arrangements satisfactory to Administrative Agent with
respect to the cancellation of any letters of credit outstanding thereunder or the issuance of
Letters of Credit to support the obligations of Company and its Subsidiaries with respect thereto.




               (e) Transaction Costs. On or prior to the Closing Date, Company shall have delivered to
Administrative Agent its reasonable best estimate of the Transaction Costs (other than fees payable
to any Agent).



               (f) Governmental Authorizations and Consents. Each Credit Party shall have obtained all
Governmental Authorizations and all consents of other Persons, in each case that are necessary or
advisable in connection with the transactions contemplated by the Credit Documents and each of the
foregoing shall be in full force and effect and in form and substance reasonably satisfactory to
Administrative Agent. All applicable waiting periods shall have expired without any action being
taken or threatened by any competent authority which would restrain, prevent or otherwise impose
adverse conditions on the transactions contemplated by the Credit Documents and no action, request
for stay, petition for review or rehearing, reconsideration, or appeal with respect to any of the
foregoing shall be pending, and the time for any applicable agency to take action to set aside its
consent on its own motion shall have expired.



               (g) Contractor Documents. The Administrative Agent shall have received, in form and
substance reasonably satisfactory to the Agents, copies of each Contractor Document, accompanied by
a certificate of an Authorized Officer of each Credit Party, certifying that (i) each such
Contractor Document (A) is a true and correct copy thereof, and (B) is in full force and effect,
and (ii) no default, event of default, termination event, or similar event has occurred and is
continuing under any Contractor Document.



               (h) Personal Property Collateral. In order to create in favor of Collateral Agent, for the
benefit of Secured Parties, a valid, perfected First Priority security interest in the personal
property Collateral, Collateral Agent shall have received the following:



                    (i) evidence satisfactory to Collateral Agent of the compliance by each Credit Party of their
obligations under the Pledge and Security Agreement and the other Collateral Documents (including
their obligations to execute and deliver UCC financing statements, originals of securities and
share certificates, instruments and chattel paper, accompanied by appropriate instruments of
transfer executed in blank, and any agreements governing deposit and/or securities accounts as
provided therein);



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                    (ii) A completed Collateral Questionnaire dated the Closing Date and executed by an Authorized
Officer of Company, together with all attachments contemplated thereby, including (A) certified
copies of uniform commercial code requests for information, or a similar search report certified by
a party acceptable to Agents, dated a date reasonably near to the Closing Date, listing all
effective financing statements which name Company or any of its Subsidiaries (under their present
names or under any previous names used within five (5) years prior to the date hereof, including in
each case, trade or business names) as debtors and which are filed in the jurisdictions in which
filings are to be made pursuant to the Collateral Documents, together with (i) copies of such
financing statements, and (ii) executed Uniform Commercial Code (Form UCC-3) Termination
Statements, if any, necessary to release all Liens and other rights of any Person in any Collateral
described in the Collateral Documents previously granted by any Person (other than Liens permitted
by Section 6.2) and (B) any documents (including, without limitation, financing statements,
amendments to financing statements and assignments of financing statements, stock powers executed
in blank and any endorsements) reasonably required to be provided in connection with the Collateral
Documents to create, in favor of the Collateral Agent (for and on behalf of the Secured Parties), a
perfected security interest in the Collateral thereunder shall have been delivered to the
Collateral Agent in a proper form for filing in each office in each jurisdiction listed in Schedule
V of the Pledge and Security Agreement, or other office, as the case may be;



                    (iii) opinions of counsel (which counsel shall be reasonably satisfactory to Collateral Agent)
with respect to the creation and perfection of the security interests in favor of Collateral Agent
in such Collateral and such other matters governed by the laws of each jurisdiction in which any
Credit Party or any personal property Collateral is located as Collateral Agent may reasonably
request, in each case in form and substance reasonably satisfactory to Collateral Agent;



                    (iv) evidence that (i) a Slavenburg registration has been made with the Hong Kong Companies
Registry, and (ii) SCHOT has acknowledged receipt of a notice of charge and agreed to make all
payments with respect to Accounts due and owing to Credit Parties directly to a blocked account
under the control of the Collateral Agent or its sub-agent;



                    (v) evidence, in form and substance reasonably satisfactory to Administrative Agent, that the
Panel Deposit will be applied by the Panel Manufacturer exclusively towards the purchase price of
Panel Inventory, or will be returned to SPV upon request by SPV; and



                    (vi) evidence that each Credit Party shall have taken or caused to be taken any other action,
executed and delivered or caused to be executed and delivered any other agreement, document and
instrument (including without limitation, (i) Landlord Collateral Access Agreements, Bailee’s
Letters and/or similar collateral access agreements executed by the landlord of each Leasehold
Property and by the applicable Credit Party, (ii) Contractor Agreements, (iii) Panel Deposit
Agreements and (iv) any intercompany notes evidencing Indebtedness permitted to be incurred
pursuant to Section 6.1(b)) and made or caused to be made any other filing and recording (other
than as set forth herein) reasonably required by Collateral Agent.



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               (i) Financial Statements; Projections. Lenders shall have received from Company (i) the
Historical Financial Statements described in Section 4.7 hereof and (ii) the Projections described
in Section 4.8 hereof, in each case, certified as of the Closing Date as true and correct copies by
the chief financial officer of Company and as complying with the applicable representations and
warranties set forth in Sections 4.7 and 4.8, respectively.



               (j) Evidence of Insurance. Collateral Agent shall have received a certificate from each Credit
Party’s insurance broker or other evidence satisfactory to it that all insurance required to be
maintained pursuant to Section 5.5 is in full force and effect, together with endorsements naming
the Collateral Agent, for the benefit of Secured Parties, as additional insured and loss payee
thereunder to the extent required under Section 5.5, in each case, in form and substance reasonably
satisfactory to the Collateral Agent.



               (k) Opinions of Counsel to Credit Parties. Lenders and their respective counsel shall have
received originally executed copies of the favorable written opinions of (i) Greenberg Traurig,
LLP, counsel for Credit Parties and (ii) other opinions from local and foreign counsel for Credit
Parties, each dated as of the Closing Date and covering such matters as Administrative Agent may
reasonably request and otherwise in form and substance reasonably satisfactory to Administrative
Agent (and each Credit Party hereby instructs such counsel to deliver such opinions to Agents,
Borrowing Base Agent and Lenders).



               (l) Fees. Company shall have paid to Administrative Agent the fees payable on the
Closing Date referred to in the Fee Letter.



               (m) Solvency Certificate. On the Closing Date, Administrative Agent shall have received a
Solvency Certificate from Company dated as of the Closing Date and addressed to Administrative
Agent and Lenders, and in form, scope and substance reasonably satisfactory to Administrative
Agent, with appropriate attachments and demonstrating that after giving effect to the making of the
Loans, the issuance of the Letters of Credit and the refinancing the Existing Indebtedness
contemplated by this Agreement to occur on the Closing Date, Company and its Subsidiaries are and
will be Solvent.



               (n) Closing Date Certificate. Company shall have delivered to Administrative Agent an
originally executed Closing Date Certificate, together with all attachments thereto.



               (o) Closing Date. Lenders shall have made the Tranche A Term Loans to Company and the Tranche
A-1 Term Loans to SPV, in each case, on or before October 31, 2007.



               (p) No Litigation. There shall not exist any action, suit, investigation, litigation or
proceeding or other legal or regulatory developments, pending or threatened in any court or before
any arbitrator or Governmental Authority that, in the reasonable opinion of Administrative Agent,
singly or in the aggregate, materially impairs the making of the Loans, the issuance of the Letters
of Credit, the refinancing of the Existing Indebtedness, or any of the other transactions
contemplated by the Credit Documents, or that could have a Material Adverse Effect.



               (q) Due Diligence. The Agents and Borrowing Base Agent shall have completed their business,
legal and collateral due diligence with respect to each Credit Party and the results thereof shall
be acceptable to the Agents and the Borrowing Base Agent, in their



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reasonable discretion. Without limiting the foregoing, the Collateral Agent shall have received a
collateral audit and appraisals, in each case, the results thereof shall be acceptable to the
Collateral Agent, in its reasonable discretion. Other than changes occurring in the ordinary
course of business, no information or materials are or should have been available to Company or any
of its Subsidiaries as of the Closing Date that are materially inconsistent with the material
previously provided to Administrative Agent for its due diligence review of Company and its
Subsidiaries.




               (r) No Material Adverse Change. Since June 30, 2007, no event, circumstance or change shall
have occurred that has caused or evidences, either in any case or in the aggregate, a Material
Adverse Effect.



               (s) Completion of Proceedings. All partnership, corporate and other proceedings taken or to be
taken in connection with the transactions contemplated hereby and all documents incidental thereto
not previously found acceptable by Administrative Agent and its counsel shall be satisfactory in
form and substance to Administrative Agent and such counsel, and Administrative Agent, and such
counsel shall have received all such counterpart originals or certified copies of such documents as
Administrative Agent may reasonably request.



               (t) Service of Process. On the Closing Date, Administrative Agent shall have received evidence
that each Credit Party has appointed an agent in New York City for the purpose of service of
process in New York City and such agent shall agree in writing to give Administrative Agent notice
of any resignation of such service agent or other termination of the agency relationship.



               (u) Cash Management. Other than those depository account, blocked account, lockbox
account and similar agreements and other documents permitted to be delivered on a post-closing
basis pursuant to Section 5.15(b), the Agents and Borrowing Base Agent shall have received such
depository account, blocked account, lockbox account and similar agreements and other documents,
each in form and substance satisfactory to the Agents and the Borrowing Base Agent, as the Agents
and the Borrowing Base Agent may request with respect to the cash management system of Company and
its Subsidiaries and Agents and Borrowing Base Agent shall be satisfied in their reasonable
discretion with the cash management system of Company and its Subsidiaries.



               (v) Intercompany Subordination Agreement. The Agents shall have received, in form and
substance reasonably satisfactory to Agents, a copy of the Intercompany Subordination Agreement,
duly executed by each Credit Party.



               (w) Funds Flow Agreement. The Agents shall have received the Flow of Funds Agreement
duly executed by each Credit Party, each Agent and any other person party thereto.



               (x) Factoring Arrangements. The Agents shall have received (i) a copy of the
Factoring Agreement, as amended as of the Closing Date, in form and substance reasonably acceptable
to the Agents, certified as a true and correct copy thereof by an Authorized Officer of



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each Credit Party; and (ii) the Factoring Assignment Agreement, duly executed by the Factor
and the Collateral Agent.




               (y) Further Documentation. Agents shall have received, in form and substance
reasonably satisfactory to Agents, such other agreements, instruments, approvals, opinions and
other documents, as the Agents may reasonably request, including, without limitation, the warrants,
warrantholder rights agreement and registration rights agreement required to be delivered to Silver
Point by the Company on the Closing Date.



               Each Lender, by delivering its signature page to this Agreement and funding a Loan on the
Closing Date, shall be deemed to have acknowledged receipt of, and consented to and approved, each
Credit Document and each other document required to be approved by any Agent, Borrowing Base Agent,
Requisite Lenders or Lenders, as applicable on the Closing Date.



          3.2 Conditions to Each Credit Extension.




               (a) Conditions Precedent. The obligation of each Lender to make any Loan, or Administrative
Agent to procure any Letter of Credit, on any Credit Date, including the Closing Date, are subject
to the satisfaction, or waiver in accordance with Section 10.5, of the following conditions
precedent:



                    (i) Borrowing Base Agent or Administrative Agent, as applicable, shall have received a fully
executed and delivered Funding Notice or Issuance Notice, as the case may be, together with a
Borrowing Base Certificate as of such date; provided, that the Borrowing Base Certificate
delivered on the Closing Date may be based on the Credit Parties’ September 30, 2007 field audit;



                    (ii) after making the Credit Extensions requested on such Credit Date, the Total Utilization
of Revolving Commitments shall not exceed Availability at such time;



                    (iii) as of such Credit Date, the representations and warranties contained herein and in each
other Credit Document, certificate or other writing delivered to any Agent, Borrowing Base Agent or
any Lender pursuant hereto or thereto on or prior to the Credit Date shall be true and correct in
all material respects (to the extent not otherwise qualified by materiality) on and as of that
Credit Date to the same extent as though made on and as of that date, except to the extent such
representations and warranties specifically relate to an earlier date, in which case such
representations and warranties shall have been true and correct in all material respects (to the
extent not otherwise qualified by materiality) on and as of such earlier date;



                    (iv) as of such Credit Date, no event shall have occurred and be continuing or would result
from the consummation of the applicable Credit Extension that would constitute an Event of Default
or a Default;



                    (v) since June 30, 2007, no event, circumstance or change shall have occurred that has caused
or evidences, either individually or in the aggregate, a Material Adverse Effect, as determined by
the Administrative Agent in its reasonable business judgment;



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                    (vi) on or before the date of issuance of any Letter of Credit, Administrative Agent shall
have received all other information required by the applicable Issuance Notice, and such other
documents or information as Issuing Bank may reasonably require in connection with the issuance of
such Letter of Credit;



                    (1) the Chief Financial Officer of the Company shall have delivered an Officer’s Certificate
representing and warranting and otherwise demonstrating to the satisfaction of Administrative Agent
that, as of such Credit Date, Company reasonably expects, after giving effect to the proposed
borrowing and based upon good faith determinations and projections consistent with the Financial
Plan, to be in compliance with all operating and financial covenants set forth in this Agreement as
of the last day of each Fiscal Quarter ending prior to the Maturity Date;



                    (2) as of such Credit Date, the Leverage Ratio determined as of such date after giving effect
to the contemplated Credit Extension shall not exceed the maximum Leverage Ratio permitted as of
the last day of the immediately preceding Fiscal Quarter pursuant to Section 6.8;



                    (3) after giving effect to such Credit Extension the aggregate Cash and Cash Equivalents of
Company and its subsidiaries will not exceed $5,000,000;



                    (4) the Credit Parties shall have paid all fees, costs and expenses then payable by the Credit
Parties pursuant to this Agreement and the other Credit Documents, including, without limitation,
the Fee Letter, Section 2.10, and Section 10.2 hereof; and



                    (5) the making of such Loan or the issuance of such Letter of Credit shall not contravene any
law, rule or regulation applicable to any Agent, Borrowing Base Agent, any Lender or any Issuing
Bank.


Any Agent or Requisite Lenders shall be entitled, but not obligated to, request and receive, prior
to the making of any Credit Extension, additional information reasonably satisfactory to the
requesting party confirming the satisfaction of any of the foregoing if, in the good faith judgment
of such Agent or Requisite Lender such request is warranted under the circumstances.




               (b) Notices. Any Notice shall be executed by an Authorized Officer of the Applicable Borrower
in a writing delivered to Administrative Agent. In lieu of delivering a Notice, the Applicable
Borrower may give Administrative Agent telephonic notice by the required time of any proposed
borrowing, conversion/continuation or issuance of a Letter of Credit, as the case may be;
provided, that each such notice shall be promptly confirmed in writing by delivery of the
applicable Notice to Administrative Agent on or before the applicable date of borrowing,
continuation/conversion or issuance. Neither Administrative Agent nor any Lender shall incur any
liability to any Borrower in acting upon any telephonic notice referred to above that
Administrative Agent believes in good faith to have been given by a duly authorized officer or
other person authorized on behalf of such Borrower or for otherwise acting in good faith.




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     SECTION 4. REPRESENTATIONS AND WARRANTIES



          In order to induce Lenders and Issuing Bank to enter into this Agreement and to make each
Credit Extension to be made thereby, each Credit Party represents and warrants to each Lender and
Issuing Bank, on the Closing Date and on each Credit Date, that the following statements are true
and correct (it being understood and agreed that the representations and warranties made on the
Closing Date are deemed to be made concurrently with the consummation of the transactions
contemplated hereby, including the repayment of the Existing Indebtedness):




          4.1 Organization; Requisite Power and Authority; Qualification. Each of Company and its Subsidiaries (a) is duly organized, validly existing and in good
standing (or the non-U.S. equivalent thereof) under the laws of its jurisdiction of organization as
identified in Schedule 4.1, (b) has all requisite power and authority to own and operate its
properties, to carry on its business as now conducted and as proposed to be conducted, to enter
into the Credit Documents to which it is a party and to carry out the transactions contemplated
thereby and, in the case of Borrowers, to make the borrowings hereunder, and (c) is qualified to do
business and in good standing in every jurisdiction where its assets are located and wherever
necessary to carry out its business and operations.




          4.2 Capital Stock and Ownership. The Capital Stock of each of Company and its Subsidiaries has been duly authorized and validly
issued and is fully paid and non-assessable. Except as set forth on Schedule 4.2, as of the date
hereof, there is no existing option, warrant, call, right, commitment or other agreement to which
Company or any of its Subsidiaries is a party requiring, and there is no membership interest or
other Capital Stock of Company or any of its Subsidiaries outstanding which upon conversion or
exchange would require, the issuance by Company or any of its Subsidiaries of any additional
membership interests or other Capital Stock of Company or any of its Subsidiaries or other
Securities convertible into, exchangeable for or evidencing the right to subscribe for or purchase,
a membership interest or other Capital Stock of Company or any of its Subsidiaries. Schedule 4.2
sets forth a true, complete and correct list as of the Closing Date, of the name of Company and
each of its Subsidiaries and indicates for each such Person its ownership (by holder and percentage
interest) and the type of entity of each of them, and the number and class of authorized and issued
Capital Stock of such Subsidiary. Except as set forth on Schedule 4.2, as of the Closing Date,
neither Company nor any of its Subsidiaries has any equity investments in any other corporation or
entity.




          4.3 Due Authorization. The execution, delivery and performance of the Credit Documents have been duly authorized by all
necessary action on the part of each Credit Party that is a party thereto.




          4.4 No Conflict. The execution, delivery and performance by Credit Parties of the Credit Documents to which they
are parties and the consummation of the transactions contemplated by the Credit Documents
do not and will not (a) violate any provision of any law or any governmental rule or regulation
applicable to Company or any of its Subsidiaries, any of the Organizational Documents of Company or
any of its Subsidiaries, or any order, judgment or decree of any court or other agency of
government binding on Company or any of its Subsidiaries; (b) conflict with, result in a breach of
or constitute (with due notice or lapse of time







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or both) a default under any Contractual Obligation
of Company or any of its Subsidiaries; (c) result in or require the creation or imposition of any
Lien upon any of the properties or assets of Company or any of its Subsidiaries (other than any
Liens created under any of the Credit Documents in favor of Collateral Agent, on behalf of Secured
Parties); (d) result in any default, noncompliance, suspension, revocation, impairment, forfeiture
or nonrenewal of any permit, license, authorization or approval applicable to its operations or any
of its properties or (e) require any approval of stockholders, members or partners or any approval
or consent of any Person under any Contractual Obligation of Company or any of its Subsidiaries,
except for such approvals or consents which will be obtained on or before the Closing Date and
disclosed in writing to Lenders.




          4.5 Governmental Consents. The execution, delivery and performance by Credit Parties of the Credit Documents to which they
are parties and the consummation of the transactions contemplated by the Credit Documents do not
and will not require any registration with, consent or approval of, or notice to, or other action
to, with or by, any Governmental Authority except for filings and recordings with respect to the
Collateral to be made, or otherwise delivered to Collateral Agent for filing and/or recordation, as
of the Closing Date.




          4.6 Binding Obligation. Each Credit Document has been duly executed and delivered by each Credit Party that is a party
thereto and is the legally valid and binding obligation of such Credit Party, enforceable against
such Credit Party in accordance with its respective terms, except as may be limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws relating to or limiting creditors’ rights
generally or by equitable principles relating to enforceability (whether enforcement is sought in
equity or at law).




          4.7 Historical Financial Statements. The Historical Financial Statements were prepared in conformity with GAAP and fairly present, in
all material respects, the financial position, on a consolidated basis, of the Persons described in
such financial statements as at the respective dates thereof and the results of operations and cash
flows, on a consolidated basis, of the entities described therein for each of the periods then
ended, subject, in the case of any such unaudited financial statements, to changes resulting from
audit and normal year end adjustments. As of the Closing Date, neither Company nor any of its
Subsidiaries has any contingent liability or liability for taxes, long term lease or unusual
forward or long term commitment that is not reflected in the Historical Financial Statements or the
notes thereto and which in any such case is material in relation to the business, operations,
properties, assets, condition (financial or otherwise) or prospects of Company and
any of its Subsidiaries taken as a whole. Since the date of the audited Historical Financial
Statements, no Internal Control Event has occurred.




          4.8 Projections. On and as of the Closing Date, the 26-week cash flow projections of the Company and its
Subsidiaries, and, commencing on the date of delivery of the projections of the Company required to
be delivered pursuant to Section 5.20 (collectively, the “Projections") are based on good faith
estimates and assumptions made by the management of Company and as of the Closing Date, management
of Company believed that the Projections were reasonable and attainable, which projected financial
statements shall be updated from time to time pursuant to Section 5.1(i). Such Projections, as so
updated, shall be believed by Company at the time furnished to be reasonable, shall have been
prepared on a reasonable basis and in good faith by Company, and shall have been based on
assumptions believed by Company to be reasonable at






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the time made and upon the best information
then reasonably available to Company, and Company shall not be aware of any facts or information
that would lead it to believe that such projections, as so updated, are incorrect or misleading in
any material respect.




          4.9 No Material Adverse Change. Since June 30, 2007, no event, circumstance or change has occurred that has caused or evidences,
either in any case or in the aggregate, a Material Adverse Effect.




          4.10 No Restricted Junior Payments. Since June 30, 2007, neither Company nor any of its Subsidiaries has directly or indirectly
declared, ordered, paid or made, or set apart any sum or property for, any Restricted Junior
Payment or agreed to do so except as permitted pursuant to Section 6.4.




          4.11 Adverse Proceedings, etc. There are no Adverse Proceedings, individually or in the aggregate, that (a) relate to any
Credit Document or the transactions contemplated hereby or thereby or (b) could reasonably be
expected to have a Material Adverse Effect. Neither Company nor any of its Subsidiaries (a) is in
violation of any applicable laws (including Environmental Laws) that, individually or in the
aggregate, could reasonably be expected to have a Material Adverse Effect, or (b) is subject to or
in default with respect to any final judgments, writs, injunctions, decrees, rules or regulations
of any court or any Federal, state, municipal or other governmental department, commission, board,
bureau, agency or instrumentality, domestic or foreign, that, individually or in the aggregate,
could reasonably be expected to have a Material Adverse Effect.




          4.12 Payment of Taxes and Other Amounts. Except as otherwise permitted under Section 5.3, all tax returns and reports of Company and its
Subsidiaries required to be filed by any of them have been timely filed, and all taxes shown on
such tax returns to be due and payable and all assessments, fees and other governmental charges
upon Company and its Subsidiaries and upon their respective properties, assets, income, businesses
and franchises which are due and payable have been paid when due and payable. No
Credit Party knows of no proposed tax assessment against Company or any of its Subsidiaries which
is not being actively contested by Company or such Subsidiary in good faith and by appropriate
proceedings; provided, that such reserves or other appropriate provisions, if any, as shall
be required in conformity with GAAP shall have been made or provided therefor. Company and its
Subsidiaries have paid in full all sums owing or claimed for labor, materials, supplies, personal
property, and services of every kind and character used, furnished or installed in or on any Real
Estate Asset that are now due and owing and no claim for same exists or will be permitted to be
created, except such claims as may arise in the ordinary course of business and that are not yet
past due.




          4.13 Properties.




               (a) Title. Each of Company and its Subsidiaries has (i) good, sufficient, marketable and legal title to (in
the case of fee interests in real property), (ii) valid leasehold interests in (in the case of
leasehold interests in real or personal property), and (iii) good and valid title to (in the case
of all other personal property), all of their respective properties and assets reflected in their
respective Historical Financial Statements referred to in Section 4.7 and



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in the most recent
financial statements delivered pursuant to Section 5.1, in each case except for assets disposed of
since the date of such financial statements in the ordinary course of business or as otherwise
permitted under Section 6.8. All such properties and assets are in working order and condition,
ordinary wear and tear excepted, and except as permitted by this Agreement, all such properties and
assets are free and clear of Liens.




               (b) Real Estate. As of the Closing Date, Schedule 4.13 contains a true, accurate and complete list of (i) all
Real Estate Assets, and (ii) all leases, subleases or assignments of leases (together with all
amendments, modifications, supplements, renewals or extensions of any thereof) affecting each Real
Estate Asset of any Credit Party, regardless of whether such Credit Party is the landlord or tenant
(whether directly or as an assignee or successor in interest) under such lease, sublease or
assignment, and the termination date and annual base rent under each of them. Each agreement
listed in clause (ii) of the immediately preceding sentence is in full force and effect and no
default has occurred and is continuing thereunder. Each such agreement constitutes the legally
valid and binding obligation of each applicable Credit Party, enforceable against such Credit Party
in accordance with its terms, except as enforcement may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws relating to or limiting creditors’ rights generally or
by equitable principles. To the best knowledge of each Credit Party, no other party to any such
agreement is in default of its obligations thereunder, and no Credit Party (or any other party to
any such agreement) has at any time delivered or received any notice of default which remains
uncured under any such Lease and, as of the Closing Date, no event has occurred which, with the
giving of notice or the passage of time or both, would constitute a default under any such
agreement.



          4.14 Environmental Matters. Neither Company nor any of its Subsidiaries nor any of their respective Facilities or operations
are subject to any outstanding written order, consent decree or settlement agreement with any
Person relating to any Environmental Law, any Environmental Claim, or any Hazardous Materials
Activity that, individually or in the aggregate, could reasonably be expected to have a Material
Adverse Effect. Neither Company nor any of its Subsidiaries has received any letter or request for
information under Section 104 of the Comprehensive Environmental Response, Compensation, and
Liability Act (42 U.S.C. § 9604) or any comparable state law. There are and, to each of Company’
and its Subsidiaries’ knowledge, have been, no conditions, occurrences, or Hazardous Materials
Activities which could reasonably be expected to form the basis of an Environmental Claim against
Company or any of its Subsidiaries that, individually or in the aggregate, could reasonably be
expected to have a Material Adverse Effect. To the best knowledge of Company and each of its
Subsidiaries following due inquiry, no Environmental Claims have been asserted against any
facilities that may have received Hazardous Materials generated by Company, any of its Subsidiaries
or any predecessor in interest. Neither Company nor any of its Subsidiaries nor, to the best of
any Credit Party’s knowledge, following due inquiry, any predecessor of Company or any of its
Subsidiaries has filed any notice under any Environmental Law indicating past or present treatment
of Hazardous Materials at any Facility, and none of Company’ or any of its Subsidiaries’ operations
involves the generation, transportation, treatment, storage or disposal of Hazardous Materials, as
defined under or used in 40 C.F.R. Parts 260 270 or any state equivalent. Compliance with all
current or reasonably foreseeable future requirements pursuant to or under Environmental Laws,
including all necessary permits or authorizations that are required under Environmental Laws to
operate the facilities, assets and business of Company or






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any of its Subsidiaries, could not be
reasonably expected to have, individually or in the aggregate, a Material Adverse Effect. No event
or condition has occurred or is occurring with respect to Company or any of its Subsidiaries
relating to any Environmental Law, any Release of Hazardous Materials, or any Hazardous Materials
Activity which individually or in the aggregate has had, or could reasonably be expected to have, a
Material Adverse Effect.




          4.15 No Defaults. Neither Company nor any of its Subsidiaries is in default in the performance, observance or
fulfillment of any of the obligations, covenants or conditions contained in any of its Contractual
Obligations, and no condition exists which, with the giving of notice or the lapse of time or both,
could constitute such a default, except where the consequences, direct or indirect, of such default
or defaults, if any, could not reasonably be expected to have a Material Adverse Effect. No
Default has occurred and is continuing.




          4.16 Material Contracts. Schedule 4.16 contains a true, correct and complete list of all the Material Contracts in effect
on the Closing Date. All such Material Contracts, together with any updates provided pursuant to
Section 5.1(1), are in full force and effect and no defaults currently exist thereunder (other than
as described in Schedule 4.16 or in such updates). Each Panel Deposit Agreement and
Contractor Agreement delivered to the Administrative Agent is in full force and effect and no
defaults currently exist thereunder.




          4.17 Governmental Regulation. Neither Company nor any of its Subsidiaries is subject to regulation under the Federal Power Act
or the Investment Company Act of 1940 or under any other Federal or state statute or regulation
which may limit its ability to incur Indebtedness or which may otherwise render all or any portion
of the Obligations unenforceable. Neither Company nor any of its Subsidiaries is a “registered
investment company” or a company “controlled” by a “registered investment company” or a “principal
underwriter” of a “registered investment company” as such terms are defined in the Investment
Company Act of 1940.




          4.18 Margin Stock. Neither Company nor any of its Subsidiaries is engaged in the business of extending credit for
the purpose of purchasing or carrying any Margin Stock. No part of the proceeds of the Loans made
to such Credit Party will be used to purchase or carry any such Margin Stock or to extend credit to
others for the purpose of purchasing or carrying any such Margin Stock or for any purpose that
violates, or is inconsistent with, the provisions of Regulation T, U or X of the Board of Governors
of the Federal Reserve System.




          4.19 Employee Matters. Except as provided on Schedule 4.19, neither Company nor any of its Subsidiaries is a party to
or has any obligation under any collective bargaining agreements. Neither Company nor any of its
Subsidiaries has been or is engaged in any unfair labor practice that could reasonably be expected
to have a Material Adverse Effect. There has been and is (a) no unfair labor practice charge or
complaint pending against Company or any of its Subsidiaries, or to the best knowledge of Company
and each of its Subsidiaries, following due inquiry, threatened against any of them before the
National Labor Relations Board or any other Governmental Authority and no grievance or arbitration
proceeding arising out of or under any collective bargaining agreement or similar agreement that is
so pending against Company or any of its Subsidiaries or to the best knowledge of Company and each
of its Subsidiaries following due inquiry, threatened against any of them, (b) no labor dispute,
strike, lockout, slowdown or work stoppage in existence or threatened against, involving or
affecting Company or any of its





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Subsidiaries that could reasonably be expected to have a Material
Adverse Effect, (c) no labor union, labor organization, trade union, works council, or group of
employees of Company or any of its Subsidiaries has made a pending demand for recognition or
certification, and there are no representation or certification proceedings or petitions seeking a
representation proceeding presently pending or threatened to be brought or filed with the National
Labor Relations Board or any other Governmental Authority, and (d) to the best knowledge of Company
and each of its Subsidiaries following due inquiry, no union representation question existing with
respect to any of the employees of Company or any of its Subsidiaries and, to the best knowledge of
Company and each of its Subsidiaries following due inquiry, no labor union organizing activity with
respect to any employees of Company or any of its Subsidiaries that is taking place, except (with
respect to any matter specified in clause (a), (b), (c), or (d) above, either individually or in
the aggregate) such as is not reasonably likely to have a Material Adverse Effect.




          4.20 Employee Benefit Plans. Company, each of its Subsidiaries and each of their respective ERISA Affiliates are in
compliance with all applicable provisions and requirements of ERISA and the Internal Revenue Code
and the regulations and published interpretations thereunder with respect to each Employee Benefit
Plan, and have performed all their obligations under each Employee Benefit Plan. Each Employee
Benefit Plan which is intended to qualify under Section 401(a) of the Internal Revenue Code has
received a favorable determination letter from the Internal Revenue Service indicating that such
Employee Benefit Plan is so qualified and nothing has occurred subsequent to the issuance of such
determination letter which would cause such Employee Benefit Plan to lose its qualified status.
Neither Company nor any of its Subsidiaries, nor any of their ERISA Affiliates maintains or
contributes to any Pension Plan that is subject to Title IV of ERISA (or the non-U.S. equivalent
thereof) or to any Multiemployer Plan, except as set forth on Schedule 4.20. No liability to the
PBGC (other than required premium payments), the U.S. Department of Labor (or the non-U.S.
equivalent thereof) or the Internal Revenue Service (or the non-U.S. equivalent thereof) has been
or is expected to be incurred by Company, any of its Subsidiaries or any of their ERISA Affiliates
with respect to any Employee Benefit Plan. No ERISA Event has occurred or is reasonably expected
to occur. Except to the extent required under Section 4980B of the Internal Revenue Code or
similar state or foreign laws, or otherwise funded entirely by the participants thereof, no
Employee Benefit Plan provides health or welfare benefits (through the purchase of insurance or
otherwise) for any retired or former employee of Company, any of its Subsidiaries or any of their
respective ERISA Affiliates. The present value of the aggregate benefit liabilities under each
Pension Plan sponsored, maintained or contributed to by Company, any of its Subsidiaries or any of
their ERISA Affiliates (determined as of the end of the most recent plan year on the basis of the
actuarial assumptions specified for funding purposes in the most recent actuarial valuation for
such Pension Plan), did not exceed the aggregate current value of the assets of such Pension Plan.
As of the most recent valuation date for each Multiemployer Plan, the potential liability of
Company, its Subsidiaries and their respective ERISA Affiliates for a complete or partial
withdrawal from such Multiemployer Plan (within the meaning of Section 4203 or Section 4205 of
ERISA (or the non-U.S. equivalent thereof)). Company, each of its Subsidiaries and each of their
ERISA Affiliates have complied with the requirements of Section 515 of ERISA with respect to each
Multiemployer Plan and are not in material “default” (as defined in Section 4219(c)(5) of ERISA (or
the non-U.S. equivalent thereof)) with respect to payments to a Multiemployer Plan.





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          4.21 Certain Fees. Except to the extent included in the Flow of Funds Agreement, no broker’s or finder’s fee or
commission will be payable with respect hereto or any of the transactions contemplated hereby.




          4.22 Solvency. Each Credit Party is and, upon the incurrence of any Credit Extension by such Credit Party on
any date on which this representation and warranty is made, will be, Solvent.




          4.23 Intentionally Omitted.




          4.24 Compliance with Statutes, etc. Each of Company and its Subsidiaries is in compliance with its organizational documents and all
applicable statutes, regulations and orders of, and all applicable restrictions imposed by, all
Governmental Authorities, in respect of the conduct of its business and the ownership of its
property (including compliance with all applicable Environmental Laws, zoning, subdivision,
construction, building and land use laws and ordinances with respect to any Real Estate Asset or
governing its business and the requirements of any permits issued under such laws with respect to
any such Real Estate Asset or the operations of Company or any of its Subsidiaries).




          4.25 Disclosure. No representation or warranty of any Credit Party contained in any Credit Document and none of
the reports, financial statements or other documents, certificates or written statements furnished
to Lenders by or on behalf of Company or any of its Subsidiaries for use in connection with the
transactions contemplated hereby contains any untrue statement of a material fact or omits to state
a material fact (known to Company or any of its Subsidiaries, in the case of any document not
furnished by either of them) necessary in order to make the statements contained herein or therein
not misleading in light of the circumstances in which the same were made. Any projections and pro
forma financial information contained in such materials are based upon good faith estimates and
assumptions believed by Company and its Subsidiaries to be reasonable at the time made. There are
no agreements, instruments and corporate or other restrictions to which any Credit Party is subject
and there are no facts known (or which should upon the reasonable exercise of diligence be known)
to Company or any of its Subsidiaries (other than matters of a general economic nature) that,
individually or in the aggregate, could reasonably be expected to result in a Material Adverse
Effect and that have not been disclosed herein or in such other documents, certificates and
statements furnished to Lenders for use in connection with the transactions contemplated hereby.




          4.26 Terrorism Laws. Each Credit Party is in compliance, in all material respects, with the Terrorism Laws. No part
of the proceeds of the Loans will be used, directly or indirectly, for any payments to any
governmental official or employee, political party, official of a political party, candidate for
political office, or anyone else acting in an official capacity in violation of the United States
Foreign Corrupt Practices Act of 1977, as amended.




          4.27 Insurance. The properties of Company and each of its Subsidiaries are adequately insured with financially
sound and reputable insurers and in such amounts, with such deductibles and covering such risks and
otherwise on terms and conditions as are customarily carried or maintained by Persons of
established reputation of similar size and engaged in similar businesses and such insurance
complies with the requirements of Section 5.5. Schedule 4.27 sets




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forth a list of all insurance maintained by or on behalf of the Credit Parties and each of their Subsidiaries as of the Closing
Date and, as of the Closing Date, all premiums in respect of such insurance have been paid.




          4.28 Common Enterprise. The successful operation and condition of each of the Credit Parties is dependent on the
continued successful performance of the functions of the group of the Credit Parties as a whole and
the successful operation of each of the Credit Parties is dependent on the successful performance
and operation of each other Credit Party. Each Credit Party expects to derive benefit (and its
board of directors or other governing body has determined that it may reasonably be expected to
derive benefit), directly and indirectly, from (i) successful operations of each of the other
Credit Parties and (ii) the credit extended by the Lenders to the Credit Parties hereunder, both in
their separate capacities and as members of the group of companies. Each Credit Party has
determined that execution, delivery, and performance of this Agreement and any other Credit
Documents to be executed by such Credit Party is within its purpose, will be of direct and indirect
benefit to such Credit Party, and is in its best interest.




          4.29 Security Interest in Collateral. The provisions of this Agreement and the other Credit Documents create legal, valid and
enforceable Liens on all the Collateral in favor of the Collateral Agent, for the benefit of the
Collateral Agent and the Secured Parties, and such Liens constitute perfected and continuing First
Priority Liens on the Collateral, securing the Obligations, enforceable against the applicable
Credit Party and all third parties, except in the case of (a) Permitted Liens, to the extent any
such Permitted Liens would have (and are permitted to have) priority over the Liens in favor of the
Collateral Agent pursuant to any applicable law, (b) Liens perfected only by possession (including
possession of any certificate of title) to the extent the Collateral Agent has not obtained or does
not maintain possession of such Collateral and (c) Panel Deposits and Panel Inventory of SPV, to
the extent such assets are held by Panel Manufacturers and Contractors outside the United States.




          4.30 Affiliate Transactions. Except as set forth on Schedule 4.30, as of the date of this Agreement, there are no existing or
proposed agreements, arrangements, understandings, or transactions between any Credit Party and any
of the officers, members, managers, directors, stockholders, parents, other interest holders,
employees, or Affiliates (other than Subsidiaries) of any Credit Party or any members of their
respective immediate families, and none of the foregoing Persons are directly or indirectly
indebted to or have any direct or indirect ownership, partnership, or voting interest in any
Affiliate of any Credit Party or any Person with which any Credit Party has a business relationship
or which competes with any Credit Party.




          4.31 Intellectual Property. Each Credit Party and its Subsidiaries owns, or is licensed to use, all trademarks, tradenames,
copyrights, patents and other intellectual property necessary to its business as currently
conducted, a correct and complete list of which, as of the date of this Agreement, is set forth on
Schedule 4.31, and the use thereof by the Credit Parties and its Subsidiaries does not infringe in
any material respect upon the rights of any other Person, and the Credit Parties rights thereto are
not subject to any licensing agreement or similar arrangement. Each Credit Party has taken
reasonable measures to protect the secrecy, confidentiality and value of all trade secrets used in
its business (collectively, the “Business Trade Secrets”). To the best knowledge of each Credit
Party, none of the Business Trade






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Secrets have been disclosed to any Person other than employees or
contractors of the Credit Parties who had a need to know and use such Business Trade Secrets in the
ordinary course of employment or contract performance and who executed appropriate confidentiality
agreements prohibiting the unauthorized use or disclosure of such Business Trade Secrets and
containing other terms reasonably necessary or appropriate for the protection and maintenance of
such Business Trade Secrets. To the best knowledge of each Credit Party, no unauthorized
disclosure of any Business Trade Secrets has been made.




          4.32 Permits, Etc. Each Credit Party has, and is in compliance with, all permits, licenses, authorizations,
approvals, entitlements and accreditations required for such Person lawfully to own, lease, manage
or operate, or to acquire, each business currently owned, leased, managed or operated, or to be
acquired, by such Person, which, if not obtained, could not reasonably be expected to have a
Material Adverse Effect. No condition exists or event has occurred which, in itself or with the
giving of notice or lapse of time or both, would result in the suspension, revocation, impairment,
forfeiture or non-renewal of any such permit, license, authorization, approval, entitlement or
accreditation, and there is no claim that any thereof is not in full force and effect, except, to
the extent any such condition, event or claim could not be reasonably be expected to have a
Material Adverse Effect.




          4.33 Customers and Suppliers. Except as set forth on Schedule 4.33, there has been no actual or, to the best knowledge of any
Credit Party, threatened termination, cancellation or limitation of, or adverse modification to or
change in, the business relationship between (i) any Credit Party, on the one hand, and any
customer or any group thereof, on the other hand, whose agreements with any Credit Party are
individually or in the aggregate material to the business or operations of such Credit Party, or
(ii) any Credit Party, on the one hand, and any supplier or any group thereof, on the other hand,
whose agreements with any Credit Party are individually or in the aggregate material to the
business or operations of such Credit Party; and there exists no present state of facts or
circumstances that could give rise to or result in any such termination, cancellation, limitation,
modification or change.




          4.34 Flood Zone. To the best knowledge of Company or any of its Subsidiaries, the Real Estate Assets are not
located in areas identified by the Federal Emergency Management Agency as having special flood
hazards; provided, however, that Company and any of its Subsidiaries hereby
represent, without qualification, that, no Material Improvements are located in an area identified
by the Federal Emergency Management Agency as having special flood hazards.




          4.35 Operating Lease Obligations. On the Closing Date, none of the Credit Parties has any
Operating Lease Obligations other than the Operating Lease Obligations set forth on Schedule 4.35.




          4.36 No Action for Winding-Up or Bankruptcy. There has been no voluntary or involuntary
action taken either by or against Company or any of its Subsidiaries for any such Person’s
winding-up, dissolution, liquidation, bankruptcy, receivership, administration or similar or
analogous events in respect if such Person or all or any material part of its assets.





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     SECTION 5. AFFIRMATIVE COVENANTS



               Each Credit Party covenants and agrees that so long as any Commitment is in effect and until
payment in full of all Obligations and cancellation or expiration of all Letters of Credit, each
Credit Party shall perform, and shall cause each of its Subsidiaries to perform, all covenants in
this Section 5.



          5.1 Financial Statements and Other Reports.




               Unless otherwise provided below, Company will deliver to Administrative Agent and Lenders:



               (a) Monthly Reports. As soon as available, and in any event within thirty (30) days after the end of each month
(including months which began prior to the Closing Date), the consolidated and consolidating
balance sheet of Company and its Subsidiaries as at the end of such month and the related
consolidated (and with respect to statements of income, consolidating) statements of income,
stockholders’ equity and cash flows of Company and its Subsidiaries for such month and for the
period from the beginning of the then current Fiscal Year to the end of such month, setting forth
in each case in comparative form the corresponding figures for the corresponding periods of the
previous Fiscal Year and the corresponding figures from the Financial Plan for the current Fiscal
Year, all in reasonable detail, together with a Financial Officer Certification and a Narrative
Report with respect thereto and any other operating reports prepared by management for such period;



               (b) Quarterly Financial Statements. As soon as available, and in any event within forty-five (45) days after the end of each Fiscal
Quarter of each Fiscal Year (including the fourth Fiscal Quarter), the consolidated and
consolidating balance sheets of Company and its Subsidiaries as at the end of such Fiscal Quarter
and the related consolidated (and with respect to statements of income, consolidating) statements
of income, stockholders’ equity and cash flows of Company and its Subsidiaries for such Fiscal
Quarter and for the period from the beginning of the then current Fiscal Year to the end of such
Fiscal Quarter, setting forth in each case in comparative form the corresponding figures for the
corresponding periods of the previous Fiscal Year and the corresponding figures from the Financial
Plan for the current Fiscal Year, all in reasonable detail, together with a Financial Officer
Certification and a Narrative Report with respect thereto;



               (c) Annual Financial Statements. As soon as available, and in any event within ninety (90) days after the end of each Fiscal
Year, (i) the consolidated and consolidating balance sheets of Company and its Subsidiaries as at
the end of such Fiscal Year and the related consolidated (and with respect to statements of income,
consolidating) statements of income, stockholders’ equity and cash flows of Company and its
Subsidiaries for such Fiscal Year, setting forth in each case in comparative form the corresponding
figures for the previous Fiscal Year and the corresponding figures from the Financial Plan for the
Fiscal Year covered by such financial statements, in reasonable detail, together with a Financial
Officer Certification and a Narrative Report with respect thereto; and (ii) with respect to such
financial statements an unqualified opinion thereon of Ernst & Young LLP or other independent
certified public accountants of recognized national standing selected by Company, and reasonably
satisfactory to



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Administrative Agent (which opinion shall be unqualified as to going concern and
scope of audit (and shall not contain any explanatory paragraph or paragraph of emphasis with
respect to going concern or otherwise), and shall state that such consolidated financial statements
fairly present, in all material respects, the consolidated financial position of Company and its
Subsidiaries as at the dates indicated and the results of their operations and their cash flows for
the periods indicated in conformity with GAAP applied on a basis consistent with prior years
(except as otherwise disclosed in such financial statements) and that the examination by such
accountants in connection with such consolidated financial statements has been made in accordance
with generally accepted auditing standards) together with a written statement by such independent
certified public accountants stating (1) that their audit examination has included a review of the
terms of the Credit Documents, (2) whether, in connection therewith, any condition or event that
constitutes a Default or an Event of Default has come to their attention and, if such a condition
or event has come to their attention, specifying the nature and period of existence thereof, and
(3) that nothing has come to their attention that causes them to believe that the information
contained in any Compliance Certificate is not correct or that the matters set forth in such
Compliance Certificate are not stated in accordance with the terms hereof and (4) if Company is
then subject to Section 404 of the Sarbanes-Oxley Act of 2002, an attestation report as to
management’s report on Company’s internal control over financial reporting showing no Internal
Control Event or Events;




               (d) Compliance Certificate. Together with each delivery of financial statements of Company and its Subsidiaries pursuant to
Sections 5.1(a), 5.1(b) and 5.1(c), a duly executed and completed Compliance Certificate and, for
the period commencing with the week beginning on November 11, 2007 and continuing through the end
of the week beginning on January 14, 2008, on Friday of each week, a duly executed and completed
(with respect to the provisions thereof corresponding to Sections 6.7(g) and (h) only) Compliance
Certificate, current as of the close of business on the last Business Day of the immediately
preceding week, containing such detail and other information as the Administrative Agent may
reasonably request from time to time.



               (e) Statements of Reconciliation after Change in Accounting Principles. If, as a result of any change in accounting principles and policies (or the application thereof)
from those used in the preparation of the Historical Financial Statements, the consolidated
financial statements of Company and its Subsidiaries delivered pursuant to Section 5.1(b) or 5.1(c)
will differ in any material respect from the consolidated financial statements that would have been
delivered pursuant to such subdivisions had no such change in accounting principles and policies
been made, then, together with the first delivery of such financial statements after such change,
one or more statements of reconciliation for all such prior financial statements in form and
substance satisfactory to Administrative Agent;



               (f) Notice of Default. Prompt written notice (i) of any condition or event that constitutes a Default or an Event of
Default or that notice has been given to Company or any of its Subsidiaries with respect thereto;
(ii) that any Person has given any notice to Company or any of its Subsidiaries or taken any other
action with respect to any event or condition set forth in Section 8.1(b); (iii) of the occurrence
of any event or change that has caused or evidences, either in any case or in the aggregate, a
Material Adverse Effect, or (iv) the occurrence of any Internal Control Event which is required to
be publicly disclosed of which any officer of Company or any



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of its Subsidiaries has knowledge
which notice shall be accompanied by a certificate of its Authorized Officers specifying the nature
and period of existence of such condition, event or change, or specifying the notice given and
action taken by any such Person and the nature of such claimed Event of Default, Default, default,
event or condition, and what action the Credit Parties have taken, are taking and propose to take
with respect thereto;




               (g) Notice of Litigation. Prompt written notice of (i) the institution of, or threat of, any Adverse Proceeding not
previously disclosed in writing by Company to Lenders, or (ii) any development in any Adverse
Proceeding that, in the case of either clause (i) or (ii) if adversely determined, could be
reasonably expected to have a Material Adverse Effect, or seeks to enjoin or otherwise prevent the
consummation of, or to recover any damages or obtain relief as a result of, the transactions
contemplated hereby, or which arises in respect of any material Indebtedness of Company or its
Subsidiaries or alleges any criminal misconduct by any Credit Party together in each case with such
other information as may be reasonably available to Company or any of its Subsidiaries to enable
Lenders and their counsel to evaluate such matters;



               (h) ERISA. (i) The occurrence of or forthcoming occurrence of any ERISA Event, a written notice specifying
the nature thereof, what action Company, any of its Subsidiaries or any of their respective ERISA
Affiliates has taken, is taking or proposes to take with respect thereto and, when known, any
action taken or threatened by the Internal Revenue Service, the Department of Labor or the PBGC
with respect thereto; and (ii) with reasonable promptness, copies of (1) each Schedule B (Actuarial
Information) to the annual report (Form 5500 Series) filed by Company, any of its Subsidiaries or
any of their respective ERISA Affiliates with the Internal Revenue Service with respect to each
Pension Plan; (2) all notices received by Company, any of its Subsidiaries or any of their
respective ERISA Affiliates from a Multiemployer Plan sponsor concerning an ERISA Event; and (3)
copies of such other documents or governmental reports or filings relating to any Employee Benefit
Plan as Administrative Agent shall reasonably request;



               (i) Financial Plan. As soon as practicable and in any event no later than sixty (60) days prior to the beginning of
each Fiscal Year, a consolidated plan and financial forecast for such Fiscal Year and each Fiscal
Year (or portion thereof) through the final maturity date of the Loans (a “Financial Plan”),
including (i) a forecasted consolidated and consolidating balance sheet and forecasted consolidated
and consolidating statements of income and cash flows of Company and its Subsidiaries for each such
Fiscal Year, together with pro forma Compliance Certificates for each such Fiscal Year and an
explanation of the assumptions on which such forecasts are based, (ii) forecasted consolidated
statements of income and cash flows of Company and its Subsidiaries for each month of each such
Fiscal Year, (iii) forecasts demonstrating projected compliance with the requirements of Section
6.7 through the final maturity date of the Loans, and (iv) forecasts demonstrating adequate
liquidity through the final maturity date of the Loans, together, in each case, with an explanation
of the assumptions on which such forecasts are based all in form and substance reasonably
satisfactory to Agents and accompanied by a certificate from the chief financial officer of Company
certifying that the projections contained therein are based upon good faith estimates and
assumptions believed by Company to be reasonable at the time made and at the time of delivery
thereof;



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               (j) Insurance Report. As soon as practicable and in any event by the last day of each Fiscal Year, a report in form
and substance satisfactory to Administrative Agent outlining all material insurance coverage
maintained as of the date of such report by Company and its Subsidiaries and all material insurance
coverage planned to be maintained by Company and its Subsidiaries in the immediately succeeding
Fiscal Year;



               (k) Notice of Change in Board of Directors or Similar Governing Body. With reasonable promptness, written notice of any change in the board of directors (or similar
governing body) of Company or any of its Subsidiaries;



               (l) Notice Regarding Material Contracts. Promptly, and in any event within two Business Days (i) after any Material Contract of Company
or any of its Subsidiaries, or any Panel Deposit Agreement or Contractor Agreement, is terminated
or amended in a manner that is materially adverse to Company or such Subsidiary, as the case may
be, or that could reasonably be expected to be adverse to Administrative Agent or the Lenders or
(ii) any new Material Contract is entered into, a written statement describing such event, with
copies of such material amendments or new contracts, delivered to Administrative Agent, and an
explanation of any actions being taken with respect thereto;



               (m) Environmental Reports and Audits. As soon as practicable following receipt thereof, copies of all environmental audits and reports
with respect to environmental matters at any Facility or which relate to any environmental
liabilities of Company or its Subsidiaries which, in any such case, individually or in the
aggregate, could reasonably be expected to result in a Material Adverse Effect;



               (n) Information Regarding Collateral. (a) Each Credit Party will furnish to Collateral Agent not less than thirty (30) days prior
written notice of any change (i) in any Credit Party’s corporate name, (ii) in any Credit Party’s
identity or corporate structure, or (iii) in any Credit Party’s Federal Taxpayer Identification
Number. Company agrees not to effect or permit any change referred to in the preceding sentence
unless all filings have been made under the Uniform Commercial Code or otherwise that are required
in order for Collateral Agent to continue at all times following such change to have a valid, legal
and perfected security interest in all the Collateral and for the Collateral at all times following
such change to have a valid, legal and perfected security interest as contemplated in the
Collateral Documents. Each Credit Party will furnish to Administrative Agent prompt written notice
of any Lien (other than Permitted Liens) or claims made or asserted against any Collateral or
interest therein. Each Credit Party also agrees promptly to notify Collateral Agent in writing if
any material portion of the Collateral is lost, damaged or destroyed;



               (o) Annual Collateral Verification. Each year, at the time of delivery of annual financial statements with respect to the preceding
Fiscal Year pursuant to Section 5.1(c), each Credit Party shall deliver to Collateral Agent an
Officer’s Certificate (i) either confirming that there has been no change in such information since
the date of the Collateral Questionnaire delivered on the Closing Date or the date of the most
recent certificate delivered pursuant to this Section and/or identifying such changes, or (ii)
certifying that all Uniform Commercial Code financing statements (including fixture filings, as
applicable) or other appropriate filings, recordings or registrations, have been filed of record in
each governmental, municipal or other



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appropriate office in each jurisdiction identified in the
Collateral Questionnaire or pursuant to clause (i) above to the extent necessary to protect and
perfect the security interests under the Collateral Documents for a period of not less than 18
months after the date of such certificate (except as noted therein with respect to any continuation
statements to be filed within such period);




               (p) Aging Reports. Together with each delivery of financial statements of Company and each other Credit Party
pursuant to Sections 5.1(a), 5.1(b) and 5.1(c) (and, in the case of clause (ii) below, with each
delivery of a Borrowing Base Certificate in accordance with Section 5.1(q)): (i) a summary of the
Accounts aging report of each Credit Party as of the end of such period; (ii) a summary of accounts
payable aging report of each Credit Party as of the end of such period, and (iii) a report listing
all Inventory of the Credit Parties, and containing a breakdown of such Inventory by type and
amount, the cost and the current market value thereof (by location) and such other information as
any Agent or Borrowing Base Agent may reasonably request, in each case, all in detail and in form
and substance reasonably satisfactory to the Agents;



               (q) Borrowing Base Certificate. Commencing on November 5, 2007. on Monday of each
week (and in the case of clause (i) below, together with each Funding Notice or Issuance Notice):
(i) a Borrowing Base Certificate, current as of the close of business on the last Business Day of
the immediately preceding week (or Friday of the immediately preceding week, as the case may be),
supported by schedules showing the derivation thereof and containing such
detail and other information as the Administrative Agent or the Borrowing Base Agent may
reasonably request from time to time; provided that (1) the Borrowing Base set forth in the
Borrowing Base Certificate shall be effective from and including the date such Borrowing Base
Certificate is duly received by the Agents and the Borrowing Base Agent but not including the date
on which a subsequent Borrowing Base Certificate is received by the Agents and the Borrowing Base
Agent, unless any Agent or the Borrowing Base Agent disputes the eligibility of any property
included in the calculation of the Borrowing Base or the valuation thereof by notice of such
dispute to Borrowers, (2) in the event of any dispute about the eligibility of any property
included in the calculation of the Borrowing Base or the valuation thereof, the more conservative
approach of such Agent’s or Borrowing Base Agent’s good faith business judgment shall control and
(3) the Inventory shall be updated on a weekly basis component of the Borrowing Base; and (ii) a
rolling twenty-six (26) week cash forecast, in each case, all in detail and in form reasonably
satisfactory to the Administrative Agent and the Borrowing Base Agent. Without limiting any other
rights of Administrative Agent and the Borrowing Base Agent, upon Administrative Agent’s or
Borrowing Base Agent’s request, Borrowers shall provide Administrative Agent and Borrowing Base
Agent on a daily basis with a schedule of Accounts, collections received and credits issued on a
daily basis and inventory reports prepared on a monthly or more frequent basis as the
Administrative Agent or Borrowing Base Agent may, in good faith, request in the event that at any
time any of (such schedule of Accounts, collections received and credits issued and inventory
report, collectively, the “Daily Collateral Reporting”): (1) an Event of Default or Default, shall
exist or have occurred, or (2) Borrowers shall have failed to deliver any Borrowing Base
Certificate in accordance with this Section 5.1(q), or (3) upon Administrative Agent’s or Borrowing
Base Agent’s good faith belief, any information contained in any Borrowing Base Certificate
provided under this Section 5.1(q) is incomplete, inaccurate or misleading, or (4) Availability is
less than $10,000,000 (it being understood that once the Borrowers are required by Administrative
Agent or Borrowing Agent to provide Daily Collateral Reporting on a daily



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basis in accordance with
this Section 5.1(q), the Borrowers shall continue to provide Daily Collateral Reporting to
Administrative Agent and Borrowing Base Agent on a daily basis unless and until (x) no Event of
Default or Default has occurred and are then continuing, (y) Availability exceeds $25,000,000 for
at least 30 consecutive days, and (z) the Borrowers have otherwise complied with its obligation to
deliver Daily Collateral Reporting to Administrative Agent and Borrowing Base Agent in accordance
with the provisions hereof and such Daily Collateral Reporting is complete and accurate (and not
misleading) in all respects, in Administrative Agent’s and Borrowing Base Agent’s reasonable
discretion; thereafter, the Borrowers shall deliver Borrowing Base Certificates in accordance with
this Section 5.1(q)). Notwithstanding the foregoing, the parties to this Agreement hereby agree
that the Borrowers shall provide Daily Collateral Reporting to Administrative Agent and Borrowing
Base Agent on a daily basis until the conditions in sub-clauses (x), (y) and (z) are satisfied;




               (r) Tax Returns. As soon as practicable and in any event within fifteen (15) days following the filing thereof,
copies of each Federal income tax return filed by or on behalf of any Credit Party;



               (s) Good Standing Certificates. Within ten (10) days of the first Business Day of each anniversary of the Closing Date, a
certificate of good standing (or the non-U.S. equivalent thereof) for each Credit Party from the
appropriate governmental officer in its jurisdiction of incorporation, formation or organization;



               (t) Violations of Terrorism Laws. Promptly (i) if any Credit Party obtains knowledge that any Credit Party or any Person which
owns, directly or indirectly, any Capital Stock of any Credit Party, or any other holder at any
time of any direct or indirect equitable, legal or beneficial interest therein is the subject of
any of the Terrorism Laws, such Credit Party will notify Administrative Agent and (ii) upon the
request of any Lender, such Credit Party will provide any information such Lender believes is
reasonably necessary to be delivered to comply with the Patriot Act; and



               (u) Other Information. (A) Promptly upon their becoming available, copies of (i) all financial statements, reports,
notices and proxy statements sent or made available generally by Company to its security holders
acting in such capacity or by any Subsidiary of Company to its security holders other than Company
or another Subsidiary of Company, (ii) all regular and periodic reports and all registration
statements and prospectuses, if any, filed by Company or any of its Subsidiaries with any
securities exchange or with the Securities and Exchange Commission or any governmental or private
regulatory authority, (iii) all press releases and other statements made available generally by
Company or any of its Subsidiaries to the public concerning material developments in the business
of Company or any of its Subsidiaries, (B) promptly after submission to any Governmental Authority,
all documents and information furnished to such Governmental Authority in connection with any
investigation of any Credit Party (other than any routine inquiry), (C) promptly upon receipt
thereof, copies of all financial reports (including, without limitation, management letters)
submitted to any Credit Party by its auditors in connection with any annual or interim audit of the
books thereof and (D) such other information and data with respect to Company or any of its
Subsidiaries as from time to time may be reasonably requested by Administrative Agent.



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     5.2 Existence. Except as otherwise permitted under Section 6.8, each Credit Party will, and will cause each of
its Subsidiaries to, at all times preserve and keep in full force and effect its existence and all
rights and Governmental Authorizations, qualifications, franchises, licenses and permits material
to its business and to conduct its business in each jurisdiction in which its business is
conducted; provided, that no Credit Party or any of its Subsidiaries shall be required to
preserve any such right or Governmental Authorizations, qualifications, franchise, licenses and
permits if such Person’s board of directors (or similar governing body) shall determine that the
preservation thereof is no longer desirable in the conduct of the business of such Person, and that
the loss thereof is not disadvantageous in any material respect to such Person or to Lenders.



     5.3 Payment of Taxes and Claims. Each Credit Party will, and will cause each of its Subsidiaries to, pay all Taxes imposed upon
it or any of its properties or assets or in respect of any of its income, businesses or franchises
before any penalty or fine accrues thereon, and all claims (including claims for labor, services,
materials and supplies) for sums that have become due and payable and that by law have or may
become a Lien upon any of its properties or assets, prior to the time when any penalty or fine
shall be incurred with respect thereto; provided, that no such Tax or claim need be paid if
it is being contested in good faith by appropriate proceedings promptly instituted and diligently
conducted, so long as (i) adequate reserve or other appropriate provision, as shall be required in
conformity with GAAP shall have been made therefor, and (ii) in the case of a Tax or claim which
has or may become a Lien against any of the Collateral, such contest proceedings conclusively
operate to stay the sale of any portion of the Collateral to satisfy such Tax or claim. No Credit
Party will, nor will it permit any of its Subsidiaries to, file or consent to the filing of any
consolidated income tax return with any Person (other than Company or any of its Subsidiaries).
Each Credit Party will (a) withhold from each payment made to any of its past or present employees,
officers or directors, and to any non resident of the country in which it is resident, the amount
of all Taxes and other deductions required to be withheld therefrom and pay the same to the proper
tax or other receiving officers within the time required under any applicable laws and (b) collect
from all Persons the amount of all Taxes required to be collected from them and remit the same to
the proper tax or other receiving officers within the time required under any applicable laws.



     5.4 Maintenance of Properties. Each Credit Party will, and will cause each of its Subsidiaries to, (a) maintain or cause to be
maintained in good repair, working order and condition, ordinary wear and tear excepted, all
material properties used or useful in the business of Company and its Subsidiaries and from time to
time will make or cause to be made all appropriate repairs, renewals and replacements thereof and
(b) comply at all times with the provisions of all material leases to which it is a party as lessee
or under which it occupies property, so as to prevent any loss or forfeiture thereof or thereunder.



     5.5 Insurance. Company will maintain and cause each of its Subsidiaries to maintain, insurance with reputable
insurance companies or associations (including, without limitation, comprehensive general
liability, environmental liability, hazard, rent, property, credit and business interruption
insurance) with respect to its properties (including all equipment and Inventory and all real
properties leased or owned by it) and business, in such amounts and covering such risks as is
required by any Governmental Authority having jurisdiction with respect thereto or as is carried
generally in accordance with sound business practice by



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companies in similar businesses similarly
situated and in any event in amount, adequacy and scope reasonably satisfactory to the Agents.
Without limiting the generality of the foregoing, Company will maintain or cause to be maintained
(a) flood insurance with respect to each Flood Hazard Property that is located in a community that
participates in the National Flood Insurance Program, in each case in compliance with any
applicable regulations of the Board of Governors of the Federal Reserve System, and (b) replacement
value casualty insurance on the Collateral under such policies of insurance, with such insurance
companies, in such amounts, with such deductibles, and covering such risks as are at all times
carried or maintained under similar circumstances by Persons of established reputation of similar
size and engaged in similar businesses. Each such policy of insurance shall
(i) name Collateral Agent, on behalf of Lenders as an additional insured thereunder as its
interests may appear, and (ii) in the case of each casualty insurance policy, contain a loss
payable clause or endorsement, satisfactory in form and substance to Collateral Agent, that names
Collateral Agent, on behalf of Secured Parties, as the loss payee thereunder and provides for at
least thirty (30) days’ prior written notice to Collateral Agent of any modification or
cancellation of such policy and that no act or default of Company or any other Person shall affect
the right of the Collateral Agent to recover under such policy or policies in case of loss or
damage.




          5.6 Books and Records; Inspections. Each Credit Party will, and will cause each of its Subsidiaries to, (a) keep adequate books of
record and account in which full, true and correct entries are made of all dealings and
transactions in relation to its business and activities and (b) permit any representatives
designated by Administrative Agent or any Lender (including employees of Administrative Agent, any
Lender or any consultants, auditors, accountants, lawyers and appraisers retained by Administrative
Agent) to visit and inspect any of the properties of any Credit Party and any of its respective
Subsidiaries, to conduct audits, valuations and/or field examinations of any Credit Party and any
of its respective Subsidiaries, to inspect, copy and take extracts from its and their financial and
accounting records, and to discuss its and their affairs, finances and accounts with its and their
officers and independent accountants and auditors, all upon reasonable notice and at such
reasonable times during normal business hours (so long as no Default or Event of Default has
occurred and is continuing) and as often as may reasonably be requested and by this provision the
Credit Parties authorize such accountants to discuss with Administrative Agent and Lender and such
representatives the affairs, finances and accounts of Company and its Subsidiaries. The Credit
Parties agree to pay the (i) the examiner’s out-of-pocket costs and expenses incurred in connection
with all such visits, audits, inspections, valuations and field examinations and (ii) the costs of
all visits, audits, inspections, valuations and field examinations conducted by a third party on
behalf of the Agents, Borrowing Base Agent and the Lenders. The Credit Parties acknowledge that
Administrative Agent, after exercising its rights of inspection, may prepare and distribute to the
Lenders certain reports pertaining to the Credit Parties’ assets for internal use by Administrative
Agent and the Lenders. After the occurrence and during the continuance of any Event of Default,
each Credit Party shall provide Administrative Agent and each Lender with access to its customers
and suppliers.




          5.7 Lenders Meetings. Company and its Subsidiaries will, upon the request of Administrative Agent or Requisite
Lenders, participate in a meeting of Administrative Agent and Lenders once during each Fiscal Year
to be held at Company’s corporate offices (or at such other location as may be agreed to by Company
and Administrative Agent) at such time as may be agreed to by Company and Administrative Agent.





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          5.8 Compliance with Laws. Each Credit Party will comply, and shall cause each of its Subsidiaries and all other Persons,
if any, on or occupying any Facilities to comply, with the requirements of all applicable laws,
rules, statutes, regulations and orders of any Governmental Authority (including all Environmental
Laws). Each Credit Party shall take all reasonable and necessary actions to ensure that no portion
of the Loans will be used, disbursed or distributed for any purpose, or to any Person, directly or
indirectly, in violation of any of the Terrorism Laws and shall take all reasonable and necessary
action to comply in all material respects with all Terrorism Laws with respect thereto.




          5.9 Environmental.




               (a) Environmental Disclosure. Company will deliver to Administrative Agent and Lenders:



                    (i) as soon as practicable following receipt thereof, copies of all environmental audits,
investigations, analyses and reports of any kind or character, whether prepared by personnel of
Company or any of its Subsidiaries or by independent consultants, governmental authorities or any
other Persons, with respect to significant environmental matters at any Facility or with respect to
any Environmental Claims;



                    (ii) promptly upon the occurrence thereof, written notice describing in reasonable detail (1)
any Release required to be reported to Governmental Authority under any applicable Environmental
Laws, (2) any remedial action taken by Company or any other Person in response to (A) any Hazardous
Materials Activities the existence of which has a reasonable possibility of resulting in one or
more Environmental Claims having, individually or in the aggregate, a Material Adverse Effect, or
(B) any Environmental Claims that, individually or in the aggregate, have a reasonable possibility
of resulting in a Material Adverse Effect, and (3) the discovery by Company or any of its
Subsidiaries of any occurrence or condition on any real property adjoining or in the vicinity of
any Facility that could cause such Facility or any part thereof to be subject to any material
restrictions on the ownership, occupancy, transferability or use thereof under any Environmental
Laws;



                    (iii) as soon as practicable following the sending or receipt thereof by Company or any of its
Subsidiaries, a copy of any and all written communications with respect to (1) any Environmental
Claims that, individually or in the aggregate, have a reasonable possibility of giving rise to a
Material Adverse Effect, (2) any Release required to be reported to any Federal, state or local
governmental or regulatory agency, and (3) any request for information from any governmental agency
that suggests such agency is investigating whether Company or any of its Subsidiaries may be
potentially responsible for any Hazardous Materials Activity;



                    (iv) prompt written notice describing in reasonable detail (1) any proposed acquisition of
stock, assets, or property by Company or any of its Subsidiaries that could reasonably be expected
to (A) expose Company or any of its Subsidiaries to, or result in, Environmental Claims that could
reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect or (B)
affect the ability of Company or any of its Subsidiaries to maintain in full force and effect all
material Governmental Authorizations



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required under any Environmental Laws for their respective
operations and (2) any proposed action to be taken by Company or any of its Subsidiaries to modify
current operations in a manner that could reasonably be expected to subject Company or any of its Subsidiaries to any
additional material obligations or requirements under any Environmental Laws; and




                    (v) with reasonable promptness, such other documents and information as from time to time may
be reasonably requested by Administrative Agent in relation to any matters disclosed pursuant to
this Section 5.9(a).



               (b) Hazardous Materials Activities, Etc. Each Credit Party shall promptly take, and shall cause each of its Subsidiaries promptly
to take, any and all actions necessary to (i) cure any violation of applicable Environmental Laws
by such Credit Party or its Subsidiaries that could reasonably be expected to have, individually or
in the aggregate, a Material Adverse Effect, and (ii) make an appropriate response to any
Environmental Claim against such Credit Party or any of its Subsidiaries and discharge any
obligations it may have to any Person thereunder where failure to do so could reasonably be
expected to have, individually or in the aggregate, a Material Adverse Effect.



               (c) Right of Access and Inspection. With respect to any event described in Section 5.9(a), or if an Event of Default has occurred
and is continuing, or if Administrative Agent reasonably believes that Company or any Subsidiary
has breached any representation, warranty or covenant related to environmental matters (including
those contained in Sections 4.11, 4.14, 5.8 or 5.9):



                    (i) Administrative Agent and its representatives shall have the right, but not the obligation
or duty, to enter the Facilities at reasonable times for the purposes of observing the Facilities.
Such access shall include, at the reasonable request of Administrative Agent, access to relevant
documents and employees of Company and its Subsidiaries and to their outside representatives, to
the extent necessary to obtain necessary information related to the event at issue. If an Event of
Default has occurred and is continuing, the Credit Parties shall conduct such tests and
investigations on the Facilities or relevant portion thereof, as reasonably requested by
Administrative Agent, including any sampling or analysis as determined to be necessary under the
circumstances by a qualified environmental engineer or consultant. If an Event of Default has
occurred and is continuing, and if a Credit Party does not undertake such tests and investigations
in a reasonably timely manner following the request of Administrative Agent, Administrative Agent
may hire an independent engineer, at the Credit Parties’ expense, to conduct such tests and
investigations. Administrative Agent will make all reasonable efforts to conduct any such tests
and investigations so as to avoid interfering with the operation of the Facility



                    (ii) Any observations, tests or investigations of the Facilities by or on behalf of
Administrative Agent shall be solely for the purpose of protecting the Lenders security interests
and rights under the Credit Documents. The exercise of Administrative Agent’s rights under this
Subsection (c) shall not constitute a waiver of any default of any Credit Party or impose any
liability on Administrative Agent or any of the Lenders. In no event will any observation, test or
investigation by or on behalf of Administrative Agent be a representation that Hazardous Materials
are or are not present in, on or under any of the Facilities, or that there



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has been or will be compliance with any Environmental Law and Administrative Agent shall not
be deemed to have made any representation or warranty to any party regarding the truth, accuracy or
completeness of any report or findings with regard thereto. Neither any Credit Party nor any other
party is entitled to rely on any observation, test or investigation by or on behalf of
Administrative Agent. Administrative Agent and the Lenders owe no duty of care to protect any
Credit Party or any other party against, or to inform any Credit Party or any other party of, any
Hazardous Materials or any other adverse condition affecting any of the Facilities. Administrative
Agent may, in its reasonable discretion, disclose to the applicable Credit Party, or to any other
party if so required by law, any report or findings made as a result of, or in connection with, its
observations, tests or investigations. If a request is made of Administrative Agent to disclose
any such report or finding to any third party, then Administrative Agent shall endeavor to give the
applicable Credit Party prior notice of such disclosure and afford such Credit Party the
opportunity to object or defend against such disclosure at its own and sole cost; provided,
that the failure of Administrative Agent to give any such notice or afford such Credit Party the
opportunity to object or defend against such disclosure shall not result in any liability to
Administrative Agent. Each Credit Party acknowledges that it may be obligated to notify relevant
Governmental Authorities regarding the results of any observation, test or investigation disclosed
to such Credit Party, and that such reporting requirements are site and fact-specific and are to be
evaluated by such Credit Party without advice or assistance from Administrative Agent.




               (d) If counsel to Company or any of its Subsidiaries reasonably determines (1) that provision
to Administrative Agent of a document otherwise required to be provided pursuant to this Section
5.9 (or any other provision of this Agreement or any other Credit Document relating to
environmental matters) would jeopardize an applicable attorney-client or work product privilege
pertaining to such document, then Company or its Subsidiary shall not be obligated to deliver such
document to Administrative Agent but shall provide Administrative Agent with a notice identifying
the author and recipient of such document and generally describing the contents of the document.
Upon request of Administrative Agent, Company and its Subsidiaries shall take all reasonable steps
necessary to provide Administrative Agent with the factual information contained in any such
privileged document.



          5.10 Subsidiaries. In the event that any Person becomes a Domestic Subsidiary of Company, Company shall (a)
concurrently with such Person becoming a Domestic Subsidiary cause such Domestic Subsidiary to
become a Guarantor hereunder and a Grantor under the Pledge and Security Agreement by executing and
delivering to Administrative Agent and Collateral Agent a Counterpart Agreement, and (b) take all
such actions and execute and deliver, or cause to be executed and delivered, all such documents,
instruments, agreements, and certificates as are similar to those described in Section 3.1. In the
event that any Person becomes a Foreign Subsidiary of Company, and the ownership interests of such
Foreign Subsidiary are owned by Company or by any Domestic Subsidiary thereof, Company shall, or
shall cause such Domestic Subsidiary to, deliver, all such documents, instruments, agreements, and
certificates as are similar to those described in Sections 3.1(b), and Company shall take, or shall
cause such Domestic Subsidiary to take, all of the actions referred to in Section 3.1 necessary to
grant and to perfect a First Priority Lien in favor of Collateral Agent, for the benefit of Secured
Parties, under the Pledge and Security Agreement in sixty five percent (65%) of such ownership
interests. With respect to each such Subsidiary,
Company shall promptly send to Administrative Agent written notice setting forth with respect to
such Person (i) the date on which such Person became





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a Subsidiary of Company, and (ii) all of the
data required to be set forth in Schedules 4.1 and 4.2 with respect to all Subsidiaries of Company;
provided, such written notice shall be deemed to supplement Schedule 4.1 and 4.2 for all
purposes hereof.




          5.11 Additional Material Real Estate Assets. In the event that any Credit Party acquires a Material Real Estate Asset after the Closing Date
or a Real Estate Asset owned or leased on the Closing Date becomes a Material Real Estate Asset or
the Collateral Agent requests that any Real Estate Asset owned or leased on the Closing Date become
part of the Collateral, and such interest has not otherwise been made subject to the Lien of the
Collateral Documents in favor of Collateral Agent, for the benefit of Secured Parties, then such
Credit Party, contemporaneously with acquiring such Material Real Estate Asset, or promptly after a
Real Estate Asset owned or leased on the Closing Date becomes a Material Real Estate Asset, or
promptly following any request by the Collateral Agent therefor, shall take all such actions and
execute and deliver, or cause to be executed and delivered, all such mortgages, documents,
instruments, agreements, opinions and certificates with respect to each such Material Real Estate
Asset that Collateral Agent shall reasonably request to create in favor of Collateral Agent, for
the benefit of Secured Parties, a valid and, subject to any filing and/or recording referred to
herein, perfected First Priority security interest in such Material Real Estate Assets, including,
without limitation, (i) fully executed and notarized Mortgages, in proper form for recording in all
appropriate places in all applicable jurisdictions, encumbering each such Material Real Estate
Asset, (ii) an opinion of counsel (which counsel shall be reasonably satisfactory to Collateral
Agent) in each jurisdiction in which any such Material Real Estate Asset is located with respect to
the enforceability of the form(s) of Mortgages to be recorded in such jurisdiction and such other
matters as Collateral Agent may reasonably request, in each case in form and substance reasonably
satisfactory to Collateral Agent; (iii) in the case of each Material Real Estate Asset that is a
Leasehold Property, (1) a Landlord Consent and Estoppel and (2) evidence that such Leasehold
Property is a Recorded Leasehold Interest; (iv) (a) ALTA mortgagee title insurance policies or
unconditional commitments therefor issued by one or more title companies reasonably satisfactory to
Collateral Agent with respect to each Material Real Estate Asset (each, a “Title Policy”), in
amounts not less than the fair market value of each such Material Real Estate Asset, together with
a title report issued by a title company with respect thereto, dated not more than thirty (30) days
prior to the date on which such Material Real Estate Asset was acquired (or became a Material Real
Estate Asset or was requested to become part of the Collateral) and copies of all recorded
documents listed as exceptions to title or otherwise referred to therein, each in form and
substance reasonably satisfactory to Collateral Agent and (B) evidence satisfactory to Collateral
Agent that such Credit Party has paid to the title company or to the appropriate governmental
authorities all expenses and premiums of the title company and all other sums required in
connection with the issuance of each Title Policy and all recording and stamp taxes (including
mortgage recording and intangible taxes) payable in connection with recording the Mortgages for
each Material Real Estate Asset in the appropriate real estate records; (v) evidence of flood
insurance with respect to each Flood Hazard Property that is located in a community that
participates in the National Flood Insurance Program, in each case in compliance with any
applicable regulations of the Board of Governors of the Federal Reserve System, in form and
substance reasonably satisfactory to Collateral Agent; and (vi) ALTA surveys of each
such Material Real Estate Asset, certified to Collateral Agent and dated not more than thirty (30)
days prior to the date on which such Material Real Estate Asset was acquired (or became a Material
Real Estate Asset or was requested to become part of the Collateral). In addition to the





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foregoing, Company shall, at the request of Requisite Lenders, deliver, from time to time, to
Administrative Agent such appraisals as are required by law or regulation of Real Estate Assets
with respect to which Collateral Agent has been granted a Lien.




          5.12 Intentionally Omitted.




          5.13 Intentionally Omitted




          5.14 Further Assurances. At any time or from time to time upon the request of Administrative Agent, each Credit Party
will, at its expense, promptly execute, acknowledge and deliver such further documents and do such
other acts and things as Administrative Agent or Collateral Agent may reasonably request in order
to effect fully the purposes of the Credit Documents, including providing Lenders with any
information reasonably requested pursuant to Section 10.22. In furtherance and not in limitation
of the foregoing, each Credit Party shall take such actions as Administrative Agent or Collateral
Agent may reasonably request from time to time to ensure that the Obligations are guarantied by the
Guarantors and are secured by substantially all of the assets of Company and its Subsidiaries and
all of the outstanding Capital Stock of each Subsidiary of Company (subject to limitations
contained in the Credit Documents with respect to Foreign Subsidiaries).




          5.15 Miscellaneous Business Covenants. Unless otherwise consented to by Agents, Borrowing Base Agent and Requisite Lenders:




               (a) Non-Consolidation. Company will and will cause each of its Subsidiaries to: (i) maintain entity records and books
of account separate from those of any other entity which is an Affiliate of such entity; (ii) not
commingle its funds or assets with those of any other entity which is an Affiliate of such entity;
and (iii) provide that its board of directors or other analogous governing body will hold all
appropriate meetings to authorize and approve such entity’s actions, which meetings will be
separate from those of other entities.



               (b) Cash Management Systems. By not later than the date that is 45 days following the Closing Date, Company and its
Subsidiaries shall establish and maintain cash management systems reasonably acceptable to
Borrowing Base Agent and Administrative Agent, including with respect to blocked account and cash
sweeping arrangements. By not later than the date that is five (5) Business Days following the
Closing Date, the Credit Parties shall cause SCHOT to acknowledge its obligation to pay
Accounts owing to the Credit Parties only into deposit account number 008605823 maintained at
Preferred Bank, and, except as otherwise agreed by Borrowing Base Agent and Administrative Agent,
at all times thereafter, shall cause SCHOT to pay all such Accounts into such deposit account.



               (c) Conduct of Business. Company and its Subsidiaries shall continue to engage in business of the same general types as
now conducted by them.



          5.16 Use of Proceeds. The proceeds of the Loans will be used only to (i) refinance the Existing Indebtedness, (ii)
finance the acquisition by SPV of $40 million of Panel Inventory, to be applied in accordance with
the terms of the Panel Deposit Agreements, (iii) finance the general corporate purposes of the
Company and its Subsidiaries (including the payment of those amounts specified in the Flow of Funds
Agreement), and (iv) to pay fees and expenses associated





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with the transactions contemplated by this
Agreement and the refinancing of the Existing Indebtedness; provided, that in the event
that the Credit Parties desire to purchase any Panel Inventory with the proceeds of any Revolving
Loans, the proceeds of any such Loans shall be loaned by Company to SPV, and such Panel Inventory
shall be purchased solely by SPV. The Letters of Credit will be used for working capital and
general corporate purposes. No part of the proceeds of any Loan and no Letter of Credit will be
used, whether directly or indirectly, for any purpose that entails a violation of any law,
including Regulations T, U and X of the Board of Governors of the Federal Reserve System.




          5.17 Post Closing Matters. Company shall, and shall cause each of the Credit Parties to, satisfy the requirements set forth
on Schedule 5.17 within 30 days following the Closing Date, or such later date to be determined by
the Agent; provided, that notwithstanding anything to the contrary contained herein, the
stock certificate representing the shares of SPV shall be delivered to Collateral Agent by not
later than October 31, 2007.




          5.18 Key Man Insurance. Commencing with the date that is thirty (30) days following the Closing Date, Company shall
maintain with a responsible insurance company “key man” life insurance with respect to James Ching
Hua Li (or any individual who may replace him is his capacity as an officer of the Company) in the
amount of at least $25,000,000, pursuant to policies reasonably satisfactory to the Collateral
Agent (provided, that such policies are available to the Company on commercially reasonable
terms) and with losses payable to the Company and the Collateral Agent as their interests may
appear, pursuant to a collateral assignment of life insurance policy, in form and substance
reasonably acceptable to the Collateral Agent.




          5.19 Foreign Credit Insurance. Upon the request of Administrative Agent, Company shall use its best efforts to obtain and
maintain, for so long as the Administrative Agent may request, foreign credit insurance with
respect to all of its Accounts owing by Account Debtors that are not located within the United
States, on terms and conditions (including amounts) satisfactory to Administrative Agent, with a
responsible insurance carrier satisfactory to Administrative Agent, which policy shall be
collaterally assigned to the Collateral Agent.




          5.20 Projections. By not later than the date that is sixty (60) days following the Closing Date, the Company shall
deliver to the Agents the Projections of Company and its Subsidiaries for the period of Fiscal Year
2008 through and including Fiscal Year 2010, including monthly projections for each month during
the Fiscal Year in which the Closing Date takes place, in form and substance satisfactory to the
Agents.




          5.21 Independent Director. Within 120 days following the Closing Date, Company shall have appointed an independent director
to its Board of Directors and made appropriate changes to its organizational documents in
connection therewith, in each case, in accordance with applicable NASDAQ rules and regulations.




          SECTION 6. NEGATIVE COVENANTS




               Each Credit Party covenants and agrees that, so long as any Commitment is in effect and until
payment in full of all Obligations and cancellation or expiration of all Letters of



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Credit, such
Credit Party shall perform, and shall cause each of its Subsidiaries to perform, all covenants in
this Section 6.




          6.1 Indebtedness. No Credit Party shall, nor shall it permit any of its Subsidiaries to, directly or indirectly,
create, incur, assume or guaranty, or otherwise become or remain directly or indirectly liable with
respect to any Indebtedness, except:




               (a) the Obligations;



               (b) Indebtedness of any Guarantor to Company or to any other Guarantor, or of Company to any
Guarantor; provided, (i) all such Indebtedness shall be evidenced by promissory notes and
all such notes shall be subject to a First Priority Lien pursuant to the Pledge and Security
Agreement, (ii) all such Indebtedness shall be unsecured and subordinated in right of payment to
the payment in full of the Obligations pursuant to the terms of the applicable promissory notes or
an intercompany subordination agreement that in any such case, is reasonably satisfactory to
Administrative Agent, (iii) any payment by any such Guarantor under any guaranty of the Obligations
shall result in a pro tanto reduction of the amount of any Indebtedness owed by such Subsidiary to
Company or to any of its Subsidiaries for whose benefit such payment is made, and (iv) no adverse
tax consequences shall result from the incurrence of such Indebtedness;



               (c) [Intentionally Omitted];



               (d) Indebtedness which may be deemed to exist pursuant to any guaranties, performance, surety,
statutory, appeal or similar obligations incurred in the ordinary course of business;



               (e) Indebtedness in respect of netting services, overdraft protections and otherwise in
connection with customary Deposit Accounts maintained by a Credit Party as part of its ordinary
cash management program;



               (f) Performance guaranties in the ordinary course of business and consistent with historic
practices of the obligations of suppliers, customers, franchisees and licensees of Company and its
Subsidiaries;



               (g) guaranties by Company of Indebtedness of a Guarantor or guaranties by a Subsidiary of
Company of Indebtedness of Company or a Guarantor with respect, in each case, to Indebtedness
otherwise permitted to be incurred pursuant to this Section 6.1;



               (h) Indebtedness described in Schedule 6.1, but not any extensions, renewals or replacements
of such Indebtedness except (i) renewals and extensions expressly provided for in the agreements
evidencing any such Indebtedness as the same are in effect on the date of this Agreement, and (ii)
refinancings and extensions of any such Indebtedness if the terms and conditions thereof, including
those relating to amortization, maturity, collateral and subordination, are not less favorable to
the obligor thereon or to the Lenders than the Indebtedness being refinanced or extended and are
otherwise on prevailing market terms and conditions, and the average life to maturity thereof is
greater than or equal to that of the Indebtedness being refinanced or extended; provided,
that such Indebtedness permitted under the



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immediately preceding clause (i) or (ii) above shall not
(A) include Indebtedness of an obligor that was not an obligor with respect to the Indebtedness
being extended, renewed or refinanced, (B) exceed in a principal amount the Indebtedness being
renewed, extended or refinanced, or (C) be incurred, created or assumed if any Default or Event of
Default has occurred and is continuing or would result therefrom;




               (i) Indebtedness of Company or any of its Subsidiaries with respect to Capital Leases;
provided, that the principal amount of such Indebtedness, when aggregated with the
principal amount of all Indebtedness incurred under clause (j) below, shall not exceed at any time
$500,000 in the aggregate for all Credit Parties; and



               (j) purchase money Indebtedness of Company or any of its Subsidiaries; provided, that
(i) any such Indebtedness (A) shall be secured only by the asset acquired in connection with the
incurrence of such Indebtedness, and (B) shall constitute not less than ninety five percent (95%)
of the aggregate consideration paid with respect to such asset, and (ii) the aggregate amount of
all such Indebtedness, when aggregated with the principal amount of all Indebtedness incurred under
clause (i) above, shall not exceed at any time $500,000 in the aggregate for all Credit Parties;



               (k) Indebtedness of any Subsidiary of the Company that is not a Guarantor owing to (i) Company
or any Guarantor; provided that the aggregate amount of Indebtedness
outstanding at any time does not exceed $20,000,000, and (ii) any other Subsidiary of the
Company that is not a Guarantor;



               (l) Indebtedness owing in respect of letters of credit existing on the Closing Date having an
aggregate face amount of $10,118,166.06 and issued by Preferred Bank pursuant to the Amended and
Restated Business Loan and Security Agreement, dated as of December 13, 2006 and as amended
February 21, 2007, by and among Preferred Bank, Company, Syntax Groups Corporation, and Syntax
Corporation; provided that such Indebtedness is fully cash-collateralized;



               (m) Indebtedness existing under the Business Loan and Security Agreement, dated as of June 26,
2007, among Preferred Bank, Company, Syntax Groups Corporation, and Syntax Corporation (the
“Specified Preferred Bank Indebtedness”); provided, that (i) the principal amount
of such Indebtedness is not increased from the aggregate principal amount of Indebtedness
outstanding on the Closing Date, (ii) such Indebtedness is fully cash-collateralized by a Person
other than a Credit Party, and (iii) such Indebtedness is not secured by any asset of any Credit
Party; and



               (n) Indebtedness owing to Preferred Bank in an aggregate principal amount of $4,000,000 (the
“Additional Preferred Bank Indebtedness”); provided that (i) the principal amount of such
Indebtedness is not increased from the aggregate principal amount of Indebtedness outstanding on
the Closing Date, and (ii) such Indebtedness is not secured by any asset of any Credit Party;




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provided, that no Indebtedness otherwise permitted by clauses (c), (h), (i) or (j) shall be
assumed, created, or otherwise refinanced if a Default or Event of Default has occurred or would
result therefrom.




          6.2 Liens. No Credit Party shall, nor shall it permit any of its Subsidiaries to, directly or
indirectly, create, incur, assume or permit to exist any Lien on or with respect to any property or
asset of any kind (including any document or instrument in respect of goods or Accounts and any
Security) of Company or any of its Subsidiaries, whether now owned or hereafter acquired, or any
income or profits therefrom, or file or permit the filing of, or permit to remain in effect, any
financing statement or other similar notice of any Lien with respect to any such property, asset,
income or profits under the UCC of any State or other jurisdiction or under any similar recording
or notice statute, except:




               (a) Liens in favor of Collateral Agent for the benefit of Secured Parties granted pursuant to
any Credit Document;



               (b) Liens for Taxes if obligations with respect to such Taxes are being contested in good
faith by appropriate proceedings promptly instituted and diligently conducted so long as such
reserves or other appropriate provisions, if any, as shall be required by GAAP shall have been made
for any such contested amounts;



               (c) statutory Liens of landlords, banks (and rights of set off), of carriers, warehousemen,
mechanics, repairmen, workmen and materialmen, and other Liens imposed by law (other than any such
Lien imposed pursuant to Section 401 (a)(29) or 412(n) of the Internal Revenue Code or by ERISA),
in each case incurred in the ordinary course of business (i) for amounts not yet overdue, or (ii)
for amounts that are overdue and that (in the case of any such amounts overdue for a period in
excess of five (5) days) are being contested in good faith by appropriate proceedings, so long as
such reserves or other appropriate provisions, if any, as shall be required by GAAP shall have been
made for any such contested amounts;



               (d) Liens incurred in the ordinary course of business in connection with workers’
compensation, unemployment insurance and other types of social security, or to secure the
performance of tenders, statutory obligations, surety and appeal bonds, bids, leases, government
contracts, trade contracts, performance and return of money bonds and other similar obligations
(exclusive of obligations for the payment of borrowed money or other Indebtedness), so long as no
foreclosure, sale or similar proceedings have been commenced with respect to any portion of the
Collateral on account thereof;



               (e) easements, rights of way, restrictions, encroachments, and other minor defects or
irregularities in title, in each case which do not and will not interfere in any material respect
with the value or use of the property to which such Lien is attached or with the ordinary conduct
of the business of Company or any of its Subsidiaries;



               (f) any interest or title of a lessor or sublessor under any lease of real estate permitted
hereunder;



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               (g) purported Liens evidenced by the filing of precautionary UCC financing statements relating
solely to operating leases of personal property entered into in the ordinary course of business;



               (h) any zoning or similar law or right reserved to or vested in any governmental office or
agency to control or regulate the use of any real property, in each case which do not and will not
interfere with or affect in any material respect the use, value or operations of any Material Real
Estate Asset or the ordinary conduct of the business of Company or such Subsidiary;



               (i) licenses of patents, trademarks and other intellectual property rights granted by Company
or any of its Subsidiaries in the ordinary course of business and not interfering in any respect
with the ordinary conduct of the business of Company or such Subsidiary;



               (j) Liens existing on the Closing Date described in Schedule 6.2 (and Liens securing any
renewals or refinancing of the Indebtedness secured thereby to the extent permitted by Section
6.1(i));



               (k) Liens securing Indebtedness permitted pursuant to Section 6.1(i) or (j); provided,
that any such Lien shall encumber only the asset acquired with the proceeds of such Indebtedness
and shall be created substantially simultaneously with the acquisition of such asset



               (l) Liens existing under the Factoring Agreement;



               (m) Liens on cash collateral securing Indebtedness permitted pursuant to Section 6.1(l); and



               (n) Liens in favor of customs and revenue authorities arising as a matter of law to secure
payments of custom duties in connection with the importation of goods.



          6.3 No Further Negative Pledges. Except with respect to (a) specific property encumbered to secure
payment of particular Indebtedness or to be sold pursuant to an executed agreement with respect to
an Asset Sale permitted under Section 6.8 and (b) restrictions by reason of customary provisions
restricting assignments, subletting or other transfers contained in leases, licenses and similar
agreements entered into in the ordinary course of business (provided that such restrictions
are limited to the property or assets secured by such Liens or the property or assets subject to
such leases, licenses or similar agreements, as the case may be) no Credit Party shall, nor shall
it permit any of its Subsidiaries to, enter into any agreement prohibiting the creation or
assumption of any Lien upon any of its properties or assets, whether now owned or hereafter
acquired.




          6.4 Restricted Junior Payments. No Credit Party shall, nor shall it permit any of its Subsidiaries or
Affiliates through any manner or means or through any other Person to, directly or indirectly,
declare, order, pay, make or set apart, or agree to declare, order, pay, make or set apart, any sum
for any Restricted Junior Payment, other than Restricted Junior Payments payable to a Credit Party.
Nothing contained in this Section 6.4 shall operate to permit or authorized the




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payment of any management or similar fee to Affiliates unless such payment is also permitted under
Section 6.11.




          6.5 Restrictions on Subsidiary Distributions. Except as provided herein, no Credit Party shall, nor
shall it permit any of its Subsidiaries to, create or otherwise cause or suffer to exist or become
effective any consensual encumbrance or restriction of any kind on the ability of any Subsidiary of
Company to (a) pay dividends or make any other distributions on any of such Subsidiary’s Capital
Stock owned by Company or any other Subsidiary of Company, (b) repay or prepay any Indebtedness
owed by such Subsidiary to Company or any other Subsidiary of Company, (c) make loans or advances
to Company or any other Subsidiary of Company, or (d) transfer any of its property or assets to
Company or any other Subsidiary of Company other than restrictions (i) in agreements evidencing
Indebtedness permitted by Section 6.1(k) that impose restrictions on the property so acquired, (ii)
by reason of customary provisions restricting assignments, subletting or other transfers contained
in leases, licenses, joint venture agreements and similar agreements entered into in the ordinary
course of business to the extent such agreements are permitted hereunder, and (iii) that are or
were created by virtue of any transfer of, agreement to transfer or option or right with respect to
any property, assets or Capital Stock not otherwise prohibited under this Agreement. No Credit
Party shall, nor shall it permit its Subsidiaries to, enter into any Contractual Obligation which
would prohibit a Subsidiary of Company from becoming a Credit Party.




          6.6 Investments. No Credit Party shall, nor shall it permit any of its Subsidiaries to, directly or
indirectly, make or own any Investment in any Person, including without limitation any Joint
Venture, except:




               (a) Investments in Cash and Cash Equivalents; provided, that (i) such Cash and Cash
Equivalents are maintained in a Deposit Account or a securities account, as applicable, in each
case, that is subject to the exclusive control of the Collateral Agent, for the benefit of the
Secured Parties, and (ii) no Revolving Loans are outstanding;



               (b) equity Investments owned as of the Closing Date in any Subsidiary and Investments made
after the Closing Date in any wholly owned Guarantor Subsidiaries of Company;



               (c) Investments (i) received in connection with the bankruptcy or reorganization of, or
settlement of delinquent accounts and disputes with, customers and suppliers, in each case in the
ordinary course of business,, and (ii) constituting deposits, prepayments and other credits to
suppliers made in the ordinary course of business consistent with the past practices of Company and
its Subsidiaries;



               (d) intercompany loans to the extent permitted under Section 6.1(b);



               (e) Consolidated Capital Expenditures permitted by Section 6.7(e);



               (f) loans and advances to employees of Company and its Subsidiaries (i) made in the ordinary
course of business and described on Schedule 6.6, and (ii) any refinancings of such loans after the
Closing Date in an aggregate amount not to exceed $100,000;



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               (g) Investments made in connection with Permitted Acquisitions permitted pursuant to Section
6.8;



               (h) Guarantees otherwise permitted by Section 6.1;



               (i) Investments described in Schedule 6.6; and



               (j) other Investments in an aggregate amount not to exceed at any time $500,000.


Notwithstanding the foregoing, in no event shall any Credit Party make any Investment which results
in or facilitates in any manner any Restricted Junior Payment not otherwise permitted under the
terms of Section 6.4. Notwithstanding the foregoing, no Investment otherwise permitted by clause
(d), (i) or (j) shall be permitted if any Default or Event of Default has occurred and is
continuing or would result therefrom.




          6.7 Financial Covenants.




               (a) Fixed Charge Coverage Ratio. Company shall not permit the Fixed Charge Coverage Ratio as
of the last day of any Fiscal Quarter, beginning with the Fiscal Quarter ending December 31, 2007,
to be less than 1.50 to 1.00.



               (b) Leverage Ratio. Company shall not permit the Leverage Ratio as of the last day of any
Fiscal Quarter, beginning with the Fiscal Quarter ending December 31, 2007, to exceed the
correlative ratio indicated:



	 	 	 	 	 
	Fiscal Quarter	 	Leverage Ratio
	December 31, 2007
	 	 	2.75:1.00	 
	March 31, 2008
	 	 	3.25:1.00	 
	June 30, 2008 and each Fiscal Quarter thereafter
	 	 	2.50:1.00	 






               (c) Consolidated Adjusted EBITDA. Company shall not permit Consolidated Adjusted EBITDA as at
the end of any Fiscal Quarter, beginning with the Fiscal Quarter ending December 31, 2007, for the
four Fiscal Quarter period then ended to be less than the correlative amount indicated:



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	Fiscal Quarter	 	Consolidated Adjusted EBITDA
	December 31, 2007
	 	$	62,000,000	 
	March 31, 2008
	 	$	70,000,000	 
	June 30, 2008
	 	$	80,000,000	 
	September 30, 2008
	 	$	85,000,000	 
	December 31, 2008
	 	$	88,000,000	 
	March 31, 2009
	 	$	91,000,000	 
	June 30, 2009
	 	$	95,000,000	 
	September 30, 2009
	 	$	98,000,000	 
	December 31, 2009 and each Fiscal Quarter ending thereafter
	 	$	100,000,000	 
	
	 	 	 	 






               (d) Revenues. Company shall not permit Revenues as at the end of any Fiscal Quarter, beginning
with the Fiscal Quarter ending December 31, 2007, for the four Fiscal Quarter period then ended to
be less than the correlative amount indicated:



	 	 	 	 	 
	Fiscal Quarter	 	Revenues
	December 31, 2007
	 	$	770,000,000	 
	March 31, 2008
	 	$	950,000,000	 
	June 30, 2008
	 	$	1,130,000,000	 
	September 30, 2008
	 	$	1,350,000,000	 
	December 31, 2008
	 	$	1,400,000,000	 
	March 31, 2009
	 	$	1,450,000,000	 
	June 30, 2009
	 	$	1,500,000,000	 
	September 30, 2009
	 	$	1,550,000,000	 
	December 31, 2009 and each Fiscal Quarter ending thereafter
	 	$	1,600,000,000	 






               (e) Maximum Consolidated Capital Expenditures. Company shall not, and shall not permit its
Subsidiaries to, make or incur Consolidated Capital Expenditures, in any Fiscal Year, in an
aggregate amount for all of its Subsidiaries in excess of $10,000,000.



               (f) Tooling Expenditures. Company shall not, and shall not permit its Subsidiaries to,
make or incur Tooling Expenditures, at any time from the Closing Date until the date that is 90
days following the Closing Date, in excess of $1,000,000.



               (g) Production Schedule. Commencing with the week beginning on November 11, 2007 and
continuing through the end of the week beginning on January 14, 2008, Company shall not, and shall
not permit its Subsidiaries to sell and deliver to their customers less than 80% of the LCD
Televisions specified on its Approved Production Schedule (as defined in the Projections delivered
to the Agents prior to the Closing Date) during any week on a



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cumulative basis (it being understood that all such sales shall be made on customary,
commercially-reasonable terms, consistent with past practice).



               (h) Minimum Adjusted Working Capital Assets. Commencing with the week beginning on
November 11, 2007 and continuing through the end of the week beginning on January 14, 2008, Company
shall not permit Adjusted Working Capital Assets to be less than 80% of the amounts specified on
its Approved Production Schedule (as defined in the Projections delivered to the Agents prior to
the Closing Date).



               (i) Minimum Consolidated Liquidity. Company shall not permit Consolidated Liquidity
to be less than the amounts specified below as of the correlative dates indicated:



	 	 	 	 	 
	 	 	Minimum Consolidated
	Date	 	Liquidity
	Closing Date through November 30, 2007
	 	$	2,500,000	 
	December 1, 2007 and thereafter
	 	$	5,000,000	 






               (j) Certain Calculations. With respect to any period during which a Permitted Acquisition or an Asset Sale (other than the
proposed sale of the LCoS business unit of Company pursuant to the Agreement in Principle, dated as
of October 21, 2007, between Company and Compound Phototonics Ltd.) has occurred (each, a “Subject
Transaction”), for purposes of determining compliance with the financial covenants set forth in
this Section 6.7, Consolidated Adjusted EBITDA and the components of Consolidated Fixed Charges
shall be calculated with respect to such period on a pro forma basis (including pro forma
adjustments approved by Administrative Agent in its reasonable discretion) using the historical
audited financial statements of any business so acquired or to be acquired or any business so sold
or to be sold and the consolidated financial statements of Company and its Subsidiaries which shall
be reformulated as if such Subject Transaction, and any Indebtedness incurred or repaid in
connection therewith, had been consummated or incurred or repaid at the beginning of such period
(and assuming that such Indebtedness bears interest during any portion of the applicable
measurement period prior to the relevant acquisition at the weighted average of the interest rates
applicable to outstanding Loans incurred during such period).



          6.8 Fundamental Changes; Disposition of Assets; Acquisitions. No Credit Party shall, nor shall it
permit any of its Subsidiaries to, enter into any transaction of merger or consolidation, or
liquidate, wind up or dissolve itself (or suffer any liquidation or dissolution), or convey, sell,
lease or sub lease (as lessor or sublessor), exchange, transfer or otherwise dispose of, in one
transaction or a series of transactions, all or any part of its business, assets or property of any
kind whatsoever, whether real, personal or mixed and whether tangible or intangible, whether now
owned or hereafter acquired, or acquire by purchase or otherwise (other than purchases or other
acquisitions of inventory, materials and equipment and Capital Expenditures in the ordinary course
of business) the business, property or fixed assets of, or stock or other




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evidence of beneficial ownership of, any Person or any division or line of business or other
business unit of any Person, except:




               (a) any Subsidiary of Company may be merged with or into Company or any Guarantor Subsidiary,
or be liquidated, wound up or dissolved, or all or any part of its business, property or assets may
be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of
transactions, to Company or any Guarantor Subsidiary; provided, in the case of such a
merger, Company or such Guarantor Subsidiary, as applicable, shall be the continuing or surviving
Person;



               (b) sales or other dispositions of assets (i) that do not constitute Asset Sales or (ii) made
to Company or any Guarantor Subsidiary;



               (c) the dissolution of the Foreign Subsidiaries of Vivitar Corporation specified on Schedule
6.8(c); provided, that any assets contained in any such Foreign Subsidiary are transferred
to Vivitar Corporation upon the dissolution of such Foreign Subsidiary;



               (d) (i) the proposed sale of the LCoS business unit of Company pursuant to the Agreement in
Principle, dated as of October 21, 2007, between Company and Compound Phototonics Ltd., and (ii)
certain proposed licensing transactions relating to the transactions described in clause (i) above;
provided, that in each case, that (1) the consideration received for such assets shall be
in an amount at least equal to the fair market value thereof (determined in good faith by the board
of directors (or similar governing body) of such Person), (2) except in the case of clause (i)
above, no less than one hundred percent (100%) thereof shall be paid in Cash, and (3) the Net Asset
Sale Proceeds thereof shall be applied as required by Section 2.13(a);



               (e) Asset Sales, the proceeds of which, when aggregated with the proceeds of all other Asset
Sales or series of related Asset Sales made within the same Fiscal Year, are less than $500,000;
provided that (1) the consideration received for such assets shall be in an amount at least
equal to the fair market value thereof (determined in good faith by the board of directors (or
similar governing body) of such Person), (2) no less than one hundred percent (100%) thereof shall
be paid in Cash, and (3) the Net Asset Sale Proceeds thereof shall be applied as required by
Section 2.13(a);



               (f) disposals of obsolete or worn out property, the proceeds of which, when aggregated with
all other dispositions made pursuant to this clause (d) in any Fiscal Year are less than $500,000;
provided that the consideration received for such assets shall be in an amount at least
equal to the fair market value thereof (determined in good faith by the board of directors (or
similar governing body) of the Credit Party making such disposition);



               (g) Permitted Acquisitions, the aggregate consideration for which constitutes less than
$1,000,000 in the aggregate from the Closing Date to the date of determination;



               (h) Sales of Accounts made pursuant to the Factoring Agreement; and



               (i) Investments made in accordance with Section 6.6.



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          6.9 Disposal of Subsidiary Interests. Except for any sale of all of its interests in the Capital Stock
of any of its Subsidiaries in compliance with the provisions of Section 6.8, no Credit Party shall,
nor shall it permit any of its Subsidiaries to, (a) directly or indirectly sell, assign, pledge or
otherwise encumber or dispose of any Capital Stock of any of its Subsidiaries, except to qualify
directors if required by applicable law; or (b) directly or indirectly to sell, assign, pledge or
otherwise encumber or dispose of any Capital Stock of any of its Subsidiaries, except to another
Credit Party (subject to the restrictions on such disposition otherwise imposed hereunder), or to
qualify directors if required by applicable law.




          6.10 Sales and Lease Backs. Except in connection with Asset Sales permitted pursuant to Section 6.8, no
Credit Party shall, nor shall it permit any of its Subsidiaries to, directly or indirectly, become
or remain liable as lessee or as a guarantor or other surety with respect to any lease of any
property (whether real, personal or mixed), whether now owned or hereafter acquired, which such
Credit Party (a) has sold or transferred or is to sell or to transfer to any other Person (other
than Company or any of its Subsidiaries) or (b) intends to use for substantially the same purpose
as any other property which has been or is to be sold or transferred by such Credit Party to any
Person (other than Company or any of its Subsidiaries) in connection with such lease.




          6.11 Transactions with Shareholders and Affiliates. No Credit Party shall, nor shall it permit any of
its Subsidiaries to, directly or indirectly, enter into or permit to exist any transaction
(including the purchase, sale, lease or exchange of any property or the rendering of any service)
with any holder of five percent (5%) or more of any class of Capital Stock of Company or any of its
Subsidiaries or with any Affiliate of Company or of any such holder, on terms that are less
favorable to Company or that Subsidiary, as the case may be, than those that might be obtained at
the time from a Person who is not such a holder or Affiliate; provided, the foregoing
restriction shall not apply to (a) any transaction between Company and any Guarantor; (b)
reasonable and customary fees paid to members of the board of directors (or similar governing body)
of Company and its Subsidiaries; (c) reasonable compensation arrangements for officers and other
employees of Company and its Subsidiaries entered into in the ordinary course of business; and (d)
transactions described in Schedule 6.11; provided, further, however,
notwithstanding the foregoing, neither Company nor any of its Subsidiaries shall pay any management
or similar fees, or any other fees or payments, to any Affiliate of Company. Company shall
disclose in writing each transaction with any holder of five percent (5%) or more of any class of
Capital Stock of Company or any of its Subsidiaries or with any Affiliate of Company or of any such
holder to Administrative Agent.




          6.12 Conduct of Business. From and after the Closing Date, no Credit Party shall, nor shall it permit
any of its Subsidiaries to, engage in any business other than the businesses engaged in by such
Credit Party on the Closing Date .




          6.13 Permitted Activities of SPV. SPV shall not (a) incur, directly or indirectly, any Indebtedness or
any other obligation or liability whatsoever other than the SPV Obligations under the Credit
Documents and obligations in respect of the businesses described in (c) below; (b) create or suffer
to exist any Lien upon any property or assets now owned or hereafter acquired by it other than the
Liens created under the Collateral Documents to which it is a party; (c) engage in any business or
activity or own any assets other than (i) purchasing Panel Inventory,




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contracting with the Panel Manufacturers and Contractors in connection with the manufacturing and
processing of such Panel Inventory, and selling LCD Televisions manufactured with such Panel
Inventory to third parties in the ordinary course of business; and (ii) performing its obligations
and activities incidental thereto under the Credit Documents; (d) consolidate with or merge with or
into, or convey, transfer or lease all or substantially all its assets to, any Person; (e) sell or
otherwise dispose of any Capital Stock of any of its Subsidiaries; (f) create or acquire any
Subsidiary or make or own any Investment in any Person; or (g) fail to hold itself out to the
public as a legal entity separate and distinct from all other Persons.




          6.14 Amendments or Waivers of Certain Contractual Obligations. No Credit Party shall nor shall it
permit any of its Subsidiaries to, agree to any amendment, restatement, replacement, refinancing,
supplement or other modification to, or waiver or termination of any of its material rights under
any Material Contract if such amendment, restatement, replacement, refinancing, supplement or other
modification or waiver or termination would be adverse to the Agents or the Lenders, in each case,
after the Closing Date without obtaining the prior written consent of the Administrative Agent and
the Requisite Lenders to such amendment, restatement, replacement, refinancing, supplement or other
modification or waiver or termination.




          6.15 Customers and Suppliers. Each Credit Party shall use reasonable best efforts to prevent the
termination, cancellation or limitation of, or modification to or change in, the business
relationship between (i) any Credit Party, on the one hand, and any customer or any group thereof,
on the other hand, whose agreements with any Credit Party are individually or in the aggregate
material to the business or operations of such Credit Party, or (ii) any Credit Party, on the one
hand, and any material supplier thereof, on the other hand.




          6.16 Fiscal Year. No Credit Party shall, nor shall it permit any of its Subsidiaries to change its
Fiscal Year end from June 30th.




          6.17 Deposit Accounts. No Credit Party shall establish, maintain or deposit proceeds in a Deposit
Account that is not subject to the cash management arrangements described in Section 5.15.




          6.18 Amendments to Organizational Agreements and Material Contracts. No Credit Party shall (a) amend or
permit any amendments to any Credit Party’s Organizational Documents; or (b) amend or permit any
amendments to, or terminate or waive any provision of, any Material Contract, any Panel Deposit
Agreement or any Contractor Agreement, in each case, if such amendment, termination, or waiver
could be adverse to Administrative Agent or the Lenders.




          6.19 Prepayments of Certain Indebtedness. No Credit Party shall, directly or indirectly, voluntarily
purchase, redeem, defease or prepay any principal of, premium, if any, interest or other amount
payable in respect of any Indebtedness prior to its scheduled maturity, other than (a) (i) the
Obligations, and (ii) Indebtedness secured by a Permitted Liens if the asset securing such
Indebtedness has been sold or otherwise disposed of in accordance with Section 6.8, and (b)
following the date that is 100 days following the Closing Date, and provided that at the
time of such payment, no Default or Event of Default has occurred and is continuing or




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would result therefrom, the Specified Preferred Bank Indebtedness and/or the Additional Preferred
Bank Indebtedness.




          6.20 Issuance of Capital Stock. Other than Company, no Credit Party shall, nor shall it permit any of
its Subsidiaries to, issue or sell or enter into any agreement or arrangement for the issuance and
sale of any shares of its Capital Stock, any securities convertible into or exchangeable for its
Capital Stock, or any warrants, options or other rights for the purchase or acquisition of shares
of its Capital Stock. No Credit Party shall, nor shall it permit any of its Subsidiaries to, issue
or sell any Disqualified Capital Stock.




          6.21 Affiliate Payments. Except as set forth on Schedule 6.21, no Credit Party shall pay or otherwise
advance, directly or indirectly, any management, consulting or other fees to an Affiliate.




          6.22 Accounts. For the period beginning on the Closing Date and ending on the date that is ninety (90)
days following the Closing Date, no Credit Party shall, or shall permit any of its Subsidiaries to
generate more than $5,000,000 of aggregate proceeds of the Company and its Subsidiaries generated
from sales of Inventory to Account Debtors during such period from sales of Inventory to any
Account Debtors other than Account Debtors located in the United States that are acceptable to the
Agents.




          6.23 Judgments and Litigations. No Credit Party shall, or shall permit any of its Subsidiaries to, pay,
in connection with the settlement of any action, suit, investigation, litigation or proceeding or
other legal or regulatory developments, pending or threatened, or pursuant to any judgment, an
amount in excess of $2,000,000 during any calendar year or in excess of $5,000,000 in the aggregate
since the Closing Date (excluding any amounts paid with the proceeds of insurance or
indemnification payments received in connection therewith), except as otherwise consented to, in
writing, by the Administrative Agent.




          6.24 Panel Inventory. No Credit Party, other than SPV, shall purchase any Panel Inventory (or similar
Inventory) with the proceeds of any Credit Extension (it being understood that at any time that the
Credit Parties desire to purchase any Panel Inventory (or similar Inventory) with the proceeds of
any Revolving Loans, such Panel Inventory (or similar Inventory) shall be purchased by SPV with the
proceeds of Revolving Loans borrowed by Company and loaned to SPV for such purpose). SPV shall not
(i) purchase any Panel Inventory (or similar Inventory) from any Person other than a Panel
Manufacturer acceptable to Administrative Agent that has executed a Panel Deposit Agreement or (ii)
permit any Person to manufacture or otherwise process any Panel Inventory (or similar Inventory)
other than a Contractor acceptable to Administrative Agent that has executed a Contractor’s
Agreement.




     SECTION 7. GUARANTY



          7.1 Guaranty of the Obligations. (a) Subject to the provisions of Section 7.2, Guarantors jointly and
severally hereby irrevocably and unconditionally guaranty to Administrative Agent for the ratable
benefit of the Beneficiaries the due and punctual payment in full of all applicable Obligations
when the same shall become due, whether at stated maturity, by required prepayment, declaration,
acceleration, demand or otherwise (including amounts that




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would become due but for the operation of the automatic stay under Section 362(a) of the Bankruptcy
Code , 11 U.S.C. §362(a)) (collectively, the “Guaranteed Obligations”).




               (b) Each Guarantor indemnifies each Beneficiary immediately on demand against any costs, loss
or liability suffered by that Beneficiary if any obligation guaranteed by it is or becomes
unenforceable, invalid or illegal. The amount of the cost, loss or liability shall be equal to the
amount which that Beneficiary would otherwise have been entitled to recover.



          7.2 Contribution by Guarantors. All Guarantors desire to allocate among themselves (collectively, the
"Contributing Guarantors”), in a fair and equitable manner, their obligations arising under this
Guaranty. Accordingly, in the event any payment or distribution is made on any date by a Guarantor
(a “Funding Guarantor”) under this Guaranty such that its Aggregate Payments exceeds its Fair Share
as of such date, such Funding Guarantor shall be entitled to a contribution from each of the other
Contributing Guarantors in an amount sufficient to cause each Contributing Guarantor’s Aggregate
Payments to equal its Fair Share as of such date. “Fair Share” means, with respect to a
Contributing Guarantor as of any date of determination, an amount equal to (a) the ratio of (i) the
Fair Share Contribution Amount with respect to such Contributing Guarantor, to (ii) the aggregate
of the Fair Share Contribution Amounts with respect to all Contributing Guarantors multiplied by,
(b) the aggregate amount paid or distributed on or before such date by all Funding Guarantors under
this Guaranty in respect of the obligations Guaranteed. “Fair Share Contribution Amount” means,
with respect to a Contributing Guarantor as of any date of determination, the maximum aggregate
amount of the obligations of such Contributing Guarantor under this Guaranty that would not render
its obligations hereunder or thereunder subject to avoidance as a fraudulent transfer or conveyance
under Section 548 of the Bankruptcy Code or any comparable applicable provisions of state law;
provided, that solely for purposes of calculating the Fair Share Contribution Amount with
respect to any Contributing Guarantor for purposes of this Section 7.2, any assets or liabilities
of such Contributing Guarantor arising by virtue of any rights to subrogation, reimbursement or
indemnification or any rights to or obligations of contribution hereunder shall not be considered
as assets or liabilities of such Contributing Guarantor. “Aggregate Payments” means, with respect
to a Contributing Guarantor as of any date of determination, an amount equal to (1) the aggregate
amount of all payments and distributions made on or before such date by such Contributing Guarantor
in respect of this Guaranty (including in respect of this Section 7.2), minus (2) the aggregate
amount of all payments received on or before such date by such Contributing Guarantor from the
other Contributing Guarantors as contributions under this Section 7.2. The amounts payable as
contributions hereunder shall be determined as of the date on which the related payment or
distribution is made by the applicable Funding Guarantor. The allocation among Contributing
Guarantors of their obligations as set forth in this Section 7.2 shall not be construed in any way
to limit the liability of any Contributing Guarantor hereunder. Each Guarantor is a third party
beneficiary to the contribution agreement set forth in this Section 7.2.




          7.3 Payment by Guarantors. Subject to Section 7.2, Guarantors hereby jointly and severally agree, in
furtherance of the foregoing and not in limitation of any other right which any Beneficiary may
have at law or in equity against any Guarantor by virtue hereof, that upon the failure of any
Borrower to pay any of the Guaranteed Obligations when and as the same shall become due, whether at
stated maturity, by required prepayment, declaration, acceleration,




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demand or otherwise (including amounts that would become due but for the operation of the automatic
stay under Section 362(a) of the Bankruptcy Code, 11 U.S.C. §362(a)), Guarantors will upon demand
pay, or cause to be paid, in Cash, to Administrative Agent for the ratable benefit of
Beneficiaries, an amount equal to the sum of the unpaid principal amount of all Guaranteed
Obligations then due as aforesaid, accrued and unpaid interest on such Guaranteed Obligations
(including interest which, but for such Borrower’s becoming the subject of a case under the
Bankruptcy Code, would have accrued on such Guaranteed Obligations, whether or not a claim is
allowed against such Borrower for such interest in the related bankruptcy case) and all other
Guaranteed Obligations then owed to Beneficiaries as aforesaid.




          7.4 Liability of Guarantors Absolute. Each Guarantor agrees that its obligations hereunder are
irrevocable, absolute, independent and unconditional and shall not be affected by any circumstance
which constitutes a legal or equitable discharge of a guarantor or surety other than payment in
full of the Guaranteed Obligations. In furtherance of the foregoing and without limiting the
generality thereof, each Guarantor agrees as follows:




               (a) this Guaranty is a guaranty of payment when due and not of collectability. This Guaranty
is a primary obligation of each Guarantor and not merely a contract of surety;



               (b) Administrative Agent may enforce this Guaranty upon the occurrence of an Event of Default
notwithstanding the existence of any dispute between any Borrower and any Beneficiary with respect
to the existence of such Event of Default;



               (c) the obligations of each Guarantor hereunder are independent of the obligations of
Borrowers and the obligations of any other guarantor (including any other Guarantor), and a
separate action or actions may be brought and prosecuted against such Guarantor whether or not any
action is brought against any Borrower or any of such other guarantors and whether or not any
Borrower is joined in any such action or actions;



               (d) payment by any Guarantor of a portion, but not all, of the Guaranteed Obligations shall in
no way limit, affect, modify or abridge any Guarantor’s liability for any portion of the Guaranteed
Obligations which has not been paid; and without limiting the generality of the foregoing, if
Administrative Agent is awarded a judgment in any suit brought to enforce any Guarantor’s covenant
to pay a portion of the Guaranteed Obligations, such judgment shall not be deemed to release such
Guarantor from its covenant to pay the portion of the Guaranteed Obligations that is not the
subject of such suit, and such judgment shall not, except to the extent satisfied by such
Guarantor, limit, affect, modify or abridge any other Guarantor’s liability hereunder in respect of
the Guaranteed Obligations;



               (e) any Beneficiary, upon such terms as it deems appropriate, without notice or demand and
without affecting the validity or enforceability hereof or giving rise to any reduction,
limitation, impairment, discharge or termination of any Guarantor’s liability hereunder, from time
to time may (i) renew, extend, accelerate, increase the rate of interest on, or otherwise change
the time, place, manner or terms of payment of the Guaranteed Obligations; (ii) settle, compromise,
release or discharge, or accept or refuse any offer of performance with respect to, or
substitutions for, the Guaranteed Obligations or any agreement relating thereto and/or subordinate
the payment of the same to the payment of any other obligations; (iii) request and



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accept other guaranties of the Guaranteed Obligations and take and hold security for the
payment hereof or the Guaranteed Obligations; (iv) release, surrender, exchange, substitute,
compromise, settle, rescind, waive, alter, subordinate or modify, with or without consideration,
any security for payment of the Guaranteed Obligations, any other guaranties of the Guaranteed
Obligations, or any other obligation of any Person (including any other Guarantor) with respect to
the Guaranteed Obligations; (v) enforce and apply any security now or hereafter held by or for the
benefit of such Beneficiary in respect hereof or the Guaranteed Obligations and direct the order or
manner of sale thereof, or exercise any other right or remedy that such Beneficiary may have
against any such security, in each case as such Beneficiary in its discretion may determine
consistent herewith and any applicable security agreement, including foreclosure on any such
security pursuant to one or more judicial or nonjudicial sales, whether or not every aspect of any
such sale is commercially reasonable, and even though such action operates to impair or extinguish
any right of reimbursement or subrogation or other right or remedy of any Guarantor against any
Borrower or any security for the Guaranteed Obligations; and (vi) exercise any other rights
available to it under the Credit Documents; and



               (f) this Guaranty and the obligations of Guarantors hereunder shall be valid and enforceable
and shall not be subject to any reduction, limitation, impairment, discharge or termination for any
reason (other than payment in full of the Guaranteed Obligations), including the occurrence of any
of the following, whether or not any Guarantor shall have had notice or knowledge of any of them:
(i) any failure or omission to assert or enforce or agreement or election not to assert or enforce,
or the stay or enjoining, by order of court, by operation of law or otherwise, of the exercise or
enforcement of, any claim or demand or any right, power or remedy (whether arising under the Credit
Documents, at law, in equity or otherwise) with respect to the Guaranteed Obligations or any
agreement relating thereto, or with respect to any other guaranty of or security for the payment of
the Guaranteed Obligations; (ii) any rescission, waiver, amendment or modification of, or any
consent to departure from, any of the terms or provisions (including provisions relating to events
of default) hereof, any of the other Credit Documents or any agreement or instrument executed
pursuant thereto, or of any other guaranty or security for the Guaranteed Obligations, in each case
whether or not in accordance with the terms hereof or such Credit Document or any agreement
relating to such other guaranty or security; (iii) the Guaranteed Obligations, or any agreement
relating thereto, at any time being found to be illegal, invalid or unenforceable in any respect;
(iv) the application of payments received from any source (other than payments received pursuant to
the other Credit Documents or from the proceeds of any security for the Guaranteed Obligations,
except to the extent such security also serves as collateral for indebtedness other than the
Guaranteed Obligations) to the payment of indebtedness other than the Guaranteed Obligations, even
though any Beneficiary might have elected to apply such payment to any part or all of the
Guaranteed Obligations; (v) any Beneficiary’s consent to the change, reorganization or termination
of the corporate structure or existence of Company or any of its Subsidiaries and to any
corresponding restructuring of the Guaranteed Obligations; (vi) any failure to perfect or continue
perfection of a security interest in any collateral which secures any of the Guaranteed
Obligations; (vii) any defenses, set offs or counterclaims which any Credit Party may allege or
assert against any Beneficiary in respect of the Guaranteed Obligations, including failure of
consideration, breach of warranty, payment, statute of frauds, statute of limitations, accord and
satisfaction and usury; and (viii) any other act or thing or omission, or delay to do any other act
or thing, which may or might in any manner or



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to any extent vary the risk of any Guarantor as an obligor in respect of the Guaranteed
Obligations.



          7.5 Waivers by Guarantors. Each Guarantor hereby waives, for the benefit of Beneficiaries: (a) any
right to require any Beneficiary, as a condition of payment or performance by such Guarantor, to
(i) proceed against any Borrower, any other guarantor (including any other Guarantor) of the
Guaranteed Obligations or any other Person, (ii) proceed against or exhaust any security held from
any Borrower, any such other guarantor or any other Person, (iii) proceed against or have resort to
any balance of any Deposit Account or credit on the books of any Beneficiary in favor of any
Borrower or any other Person, or (iv) pursue any other remedy in the power of any Beneficiary
whatsoever; (b) any defense arising by reason of the incapacity, lack of authority or any
disability or other defense of any Borrower or any other Guarantor including any defense based on
or arising out of the lack of validity or the unenforceability of the Guaranteed Obligations or any
agreement or instrument relating thereto or by reason of the cessation of the liability of any
Borrower or any other Guarantor from any cause other than payment in full of the Guaranteed
Obligations; (c) any defense based upon any statute or rule of law which provides that the
obligation of a surety must be neither larger in amount nor in other respects more burdensome than
that of the principal; (d) any defense based upon any Beneficiary’s errors or omissions in the
administration of the Guaranteed Obligations, except behavior which amounts to bad faith; (e) (i)
any principles or provisions of law, statutory or otherwise, which are or might be in conflict with
the terms hereof and any legal or equitable discharge of such Guarantor’s obligations hereunder,
(ii) the benefit of any statute of limitations affecting such Guarantor’s liability hereunder or
the enforcement hereof, (iii) any rights to set offs, recoupments and counterclaims, and (iv)
promptness, diligence and any requirement that any Beneficiary protect, secure, perfect or insure
any security interest or lien or any property subject thereto; (f) notices, demands, presentments,
protests, notices of protest, notices of dishonor and notices of any action or inaction, including
acceptance hereof, notices of default hereunder or any agreement or instrument related thereto,
notices of any renewal, extension or modification of the Guaranteed Obligations or any agreement
related thereto, notices of any extension of credit to any Borrower and notices of any of the
matters referred to in Section 7.4 and any right to consent to any thereof; and (g) any defenses or
benefits that may be derived from or afforded by law which limit the liability of or exonerate
guarantors or sureties, or which may conflict with the terms hereof.




          7.6 Guarantors’ Rights of Subrogation, Contribution, etc. Until the Guaranteed Obligations shall have
been indefeasibly paid in full and the Revolving Commitments shall have terminated and all Letters
of Credit shall have expired or been cancelled, each Guarantor hereby waives any claim, right or
remedy, direct or indirect, that such Guarantor now has or may hereafter have against any Borrower
or any other Guarantor or any of its assets in connection with this Guaranty or the performance by
such Guarantor of its obligations hereunder, in each case whether such claim, right or remedy
arises in equity, under contract, by statute, under common law or otherwise and including without
limitation (a) any right of subrogation, reimbursement or indemnification that such Guarantor now
has or may hereafter have against any Borrower with respect to the Guaranteed Obligations, (b) any
right to enforce, or to participate in, any claim, right or remedy that any Beneficiary now has or
may hereafter have against any Borrower, and (c) any benefit of, and any right to participate in,
any collateral or security now or hereafter held by any Beneficiary. In addition, until the
Guaranteed Obligations




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shall have been indefeasibly paid in full and the Revolving Commitments shall have terminated and
all Letters of Credit shall have expired or been cancelled, each Guarantor shall withhold exercise
of any right of contribution such Guarantor may have against any other guarantor (including any
other Guarantor) of the Guaranteed Obligations, including any such right of contribution as
contemplated by Section 7.2. Each Guarantor further agrees that, to the extent the waiver or
agreement to withhold the exercise of its rights of subrogation, reimbursement, indemnification and
contribution as set forth herein is found by a court of competent jurisdiction to be void or
voidable for any reason, any rights of subrogation, reimbursement or indemnification such Guarantor
may have against any Borrower or against any collateral or security, and any rights of contribution
such Guarantor may have against any such other guarantor, shall be junior and subordinate to any
rights any Beneficiary may have against any Borrower, to all right, title and interest any
Beneficiary may have in any such collateral or security, and to any right any Beneficiary may have
against such other guarantor. If any amount shall be paid to any Guarantor on account of any such
subrogation, reimbursement, indemnification or contribution rights at any time when all Guaranteed
Obligations shall not have been finally and indefeasibly paid in full, such amount shall be held in
trust for Administrative Agent on behalf of Beneficiaries and shall forthwith be paid over to
Administrative Agent for the benefit of Beneficiaries to be credited and applied against the
Guaranteed Obligations, whether matured or unmatured, in accordance with the terms hereof.




          7.7 Subordination of Other Obligations. Any Indebtedness of any Borrower or any Guarantor now or
hereafter held by any Guarantor (the “Obligee Guarantor”) is hereby subordinated in right of
payment to the Guaranteed Obligations, and any such indebtedness collected or received by the
Obligee Guarantor after an Event of Default has occurred and is continuing shall be held in trust
for Administrative Agent on behalf of Beneficiaries and shall forthwith be paid over to
Administrative Agent for the benefit of Beneficiaries to be credited and applied against the
Guaranteed Obligations but without affecting, impairing or limiting in any manner the liability of
the Obligee Guarantor under any other provision hereof.




          7.8 Continuing Guaranty. This Guaranty is a continuing guaranty and shall remain in effect until all
of the Guaranteed Obligations shall have been indefeasibly paid in full and the Revolving
Commitments shall have terminated and all Letters of Credit shall have expired or been cancelled.
Each Guarantor hereby irrevocably waives any right to revoke this Guaranty as to future
transactions giving rise to any Guaranteed Obligations.




          7.9 Authority of Guarantors or Borrowers. It is not necessary for any Beneficiary to inquire into the
capacity or powers of any Guarantor or any Borrower or the officers, directors or any agents acting
or purporting to act on behalf of any of them.




          7.10 Financial Condition of Borrowers. Any Credit Extension may be made to any Borrower or continued
from time to time, in each case without notice to or authorization from any Guarantor regardless of
the financial or other condition of such Borrower at the time of any such grant or continuation.
No Beneficiary shall have any obligation to disclose or discuss with any Guarantor its assessment,
or any Guarantor’s assessment, of the financial condition of such Borrower. Each Guarantor has
adequate means to obtain information from each Borrower on a continuing basis concerning the
financial condition of each Borrower and its ability to perform its obligations under the Credit
Documents, and each Guarantor assumes the responsibility for




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being and keeping informed of the financial condition of Borrowers and of all circumstances bearing
upon the risk of nonpayment of the Guaranteed Obligations. Each Guarantor hereby waives and
relinquishes any duty on the part of any Beneficiary to disclose any matter, fact or thing relating
to the business, operations or conditions of any Borrower now known or hereafter known by any
Beneficiary.




          7.11 Bankruptcy, etc.




               (a) So long as any Guaranteed Obligations remain outstanding, no Guarantor shall, without the
prior written consent of Administrative Agent acting pursuant to the instructions of Requisite
Lenders, commence or join with any other Person in commencing any bankruptcy, reorganization or
insolvency case or proceeding of or against any Borrower or any other Guarantor or admit in writing
or in any legal proceeding that it is unable to pay its debts as they become due. The obligations
of Guarantors hereunder shall not be reduced, limited, impaired, discharged, deferred, suspended or
terminated by any case or proceeding, voluntary or involuntary, involving the bankruptcy,
insolvency, receivership, reorganization, liquidation or arrangement of any Borrower or any other
Guarantor or by any defense which any Borrower or any other Guarantor may have by reason of the
order, decree or decision of any court or administrative body resulting from any such proceeding.



               (b) Each Guarantor acknowledges and agrees that any interest on any portion of the Guaranteed
Obligations which accrues after the commencement of any case or proceeding referred to in clause
(a) above (or, if interest on any portion of the Guaranteed Obligations ceases to accrue by
operation of law by reason of the commencement of such case or proceeding, such interest as would
have accrued on such portion of the Guaranteed Obligations if such case or proceeding had not been
commenced) shall be included in the Guaranteed Obligations because it is the intention of
Guarantors and Beneficiaries that the Guaranteed Obligations which are guaranteed by Guarantors
pursuant hereto should be determined without regard to any rule of law or order which may relieve
any Borrower of any portion of such Guaranteed Obligations. Guarantors will permit any trustee in
bankruptcy, receiver, debtor in possession, assignee for the benefit of creditors or similar person
to pay Administrative Agent, or allow the claim of Administrative Agent in respect of, any such
interest accruing after the date on which such case or proceeding is commenced.



               (c) In the event that all or any portion of the Guaranteed Obligations are paid by the
Applicable Borrower, the obligations of Guarantors hereunder shall continue and remain in full
force and effect or be reinstated, as the case may be, in the event that all or any part of such
payment(s) are rescinded or recovered directly or indirectly from any Beneficiary as a preference,
fraudulent transfer or otherwise, and any such payments which are so rescinded or recovered shall
constitute Guaranteed Obligations for all purposes hereunder.



          7.12 Discharge of Guaranty Upon Sale of Guarantor. If all of the Capital Stock of any Guarantor or any
of its successors in interest hereunder shall be sold or otherwise disposed of (including by merger
or consolidation) in accordance with the terms and conditions hereof, the Guaranty of such
Guarantor or such successor in interest, as the case may be, hereunder shall automatically be
discharged and released without any further action by any Beneficiary or any other Person effective
as of the time of such Asset Sale.




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          7.13 Taxes. The provisions of Section 2.19 shall apply, mutatis mutandi, to the
Guarantors and payments thereby.




     SECTION 8. EVENTS OF DEFAULT



          8.1 Events of Default. If any one or more of the following conditions or events shall occur:




               (a) Failure to Make Payments When Due. Failure by Borrower or any other Credit Party to pay
(i) when due the principal of and premium, if any, on any Loan whether at stated maturity, by
acceleration or otherwise; (ii) when due any installment of principal of any Agent Advance or Loan,
by notice of voluntary prepayment, by mandatory prepayment or otherwise; (iii) when due any amount
payable to Issuing Bank in reimbursement of any drawing under a Letter of Credit; or (iv) when due
any interest on any Agent Advance or any Loan or any fee or any other amount due hereunder.



               (b) Default in Other Agreements. (i) Failure of any Credit Party or any of their respective
Subsidiaries to pay when due any principal of or interest on or any other amount payable in respect
of one or more items of Indebtedness (other than Indebtedness referred to in Section 8.1(a)) in a
principal amount of $750,000 or more (individually or in the aggregate), or (ii) breach or default
by any Credit Party or any of their respective Subsidiaries with respect to any other material term
of (1) one or more items of Indebtedness in the individual or aggregate principal amounts referred
to in clause (i) above, or (2) any loan agreement, mortgage, indenture or other agreement relating
to such item(s) of Indebtedness if the effect of such breach or default is to cause, or to permit
the holder or holders of that Indebtedness (or a trustee on behalf of such holder or holders), to
cause, that Indebtedness to become or be declared due and payable (or subject to a compulsory
repurchase or redeemable) or to require the prepayment, redemption, repurchase or defeasance of, or
to cause Company or any of its Subsidiaries to make any offer to prepay, redeem, repurchase or
defease such Indebtedness, prior to its stated maturity or the stated maturity of any underlying
obligation, as the case may be; or



               (c) Breach of Certain Covenants. Failure of any Credit Party to perform or comply with any
term or condition contained in Section 2.5, Sections 5.1, 5.2, 5.3, 5.5, 5.6, 5.8, 5.9, 5.15, 5.16,
5.17, 5.18, 5.19, 5.20 or 5.21 or Section 6; or



               (d) Breach of Representations, etc. Any representation, warranty, certification or other
statement made or deemed made by any Credit Party in any Credit Document or in any statement or
certificate at any time given by any Credit Party or any of its Subsidiaries in writing pursuant
hereto or thereto or in connection herewith or therewith shall be false in any material respect (to
the extent not otherwise qualified as to materiality) as of the date made or deemed made; or



               (e) Other Defaults Under Credit Documents. Any Credit Party shall default in the performance
of or compliance with any term contained herein or any of the other Credit Documents, other than
any such term referred to in any other Section of this Section 8.1, and such default, if capable of
being remedied, shall remained unremedied for a period of 15 days; or



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               (f) Involuntary Bankruptcy; Appointment of Receiver, etc. (i) A court of competent
jurisdiction shall enter a decree or order for relief in respect of Company or any of its
Subsidiaries, any Specified Party or any Specified Account Debtor in an involuntary case under the
Bankruptcy Code or under any other applicable bankruptcy, insolvency or similar law now or
hereafter in effect, which decree or order is not stayed; or any other similar relief shall be
granted under any applicable Federal or state law; or (ii) an involuntary case shall be commenced
against Company or any of its Subsidiaries, any Specified Party or any Specified Account Debtor
under the Bankruptcy Code or under any other applicable bankruptcy, insolvency or similar law now
or hereafter in effect; or a decree or order of a court having jurisdiction in the premises for the
appointment of a receiver, liquidator, sequestrator, trustee, custodian or other officer having
similar powers over Company or any of its Subsidiaries, any Specified Party or any Specified
Account Debtor, or over all or a substantial part of their respective property, shall have been
entered; or there shall have occurred the involuntary appointment of an interim receiver, trustee
or other custodian of Company or any of its Subsidiaries, any Specified Party or any Specified
Account Debtor for all or a substantial part of their respective properties; or a warrant of
attachment, execution or similar process shall have been issued against any substantial part of the
property of Company or any of its Subsidiaries, any Specified Party or any Specified Account
Debtor, and any such event described in this clause (ii) shall continue for forty-five (45) days
without having been dismissed, bonded or discharged; or



               (g) Voluntary Bankruptcy; Appointment of Receiver, etc. (i) Company or any of its
Subsidiaries, any Specified Party or any Specified Account Debtor shall have an order for relief
entered with respect to it or shall commence a voluntary case under the Bankruptcy Code or under
any other applicable bankruptcy, insolvency or similar law now or hereafter in effect, or shall
consent to the entry of an order for relief in an involuntary case, or to the conversion of an
involuntary case to a voluntary case, under any such law, or shall consent to the appointment of or
taking possession by a receiver, trustee or other custodian for all or a substantial part of its
property; or Company or any of its Subsidiaries, any Specified Party or any Specified Account
Debtor shall make any assignment for the benefit of creditors; or (ii) Company or any of its
Subsidiaries, any Specified Party or any Specified Account Debtor shall be unable, or shall fail
generally, or shall admit in writing its inability, to pay its debts as such debts become due; or
the board of directors (or similar governing body) (or any committee thereof) of Company or any of
its Subsidiaries, any Specified Party or any Specified Account Debtor shall adopt any resolution or
otherwise authorize any action to approve any of the actions referred to herein or in Section
8.1(f); or



               (h) Judgments and Attachments. One or more money judgments, writs or warrants of attachment or
similar processes involving an amount, individually or in the aggregate in excess of $750,000 at
any time, (to the extent not fully covered by insurance (less any deductible) as to which a solvent
and unaffiliated insurance company has acknowledged coverage), shall be entered or filed against
Company or any of its Subsidiaries or any of their respective assets either (i) enforcement
proceedings are commenced in connection therewith, or (ii) such money judgment, write or warrant of
attachment and shall remain undischarged, unvacated, unbonded or unstayed for a period of ten (10)
consecutive Business Days; or




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               (i) Dissolution. Any order, judgment or decree shall be entered against any Credit Party, any
Specified Party or any Specified Account Debtor decreeing the dissolution or split up of such
Credit Party, such Specified Party or such Specified Account Debtor; or



               (j) Employee Benefit Plans. (i) There shall occur one or more ERISA Events which individually
or in the aggregate results in or might reasonably be expected to result in liability of Company,
any of its Subsidiaries or any of their respective ERISA Affiliates in excess of $750,000 during
the term hereof; or (ii) there exists any fact or circumstance that reasonably could be expected to
result in the imposition of a Lien or security interest under Section 401(a)(29) or 412(n) of the
Internal Revenue Code or under ERISA or the non-U.S. equivalent thereof; or



               (k) Change of Control. A Change of Control shall occur; or



               (l) Guaranties, Collateral Documents and other Documents. At any time after the execution and
delivery thereof, (i) the Guaranty, for any reason, other than the satisfaction in full of all
Obligations, shall cease to be in full force and effect (other than in accordance with its terms)
or shall be declared to be null and void or any Guarantor, as applicable, shall repudiate its
obligations thereunder, (ii) this Agreement or any Collateral Document ceases to be in full force
and effect (other than by reason of a release of Collateral in accordance with the terms hereof or
thereof or the satisfaction in full of the Obligations in accordance with the terms hereof) or
shall be declared null and void, or Collateral Agent shall not have or shall cease to have a valid
and perfected Lien in any Collateral purported to be covered by the Collateral Documents with the
priority required by the relevant Collateral Document, in each case for any reason, (iii) any
Credit Party shall contest the validity or enforceability of any Credit Document or deny that it
has any further liability, including with respect to future advances by Lenders, under any Credit
Document to which it is a party, or (iv) any Contractor Agreement, any Panel Deposit Agreement or
any Specified Party Document shall cease to be in full force and effect (other than in accordance
with its terms) or shall be declared to be null and void, or any Contractor, Panel Manufacturer or
Specified Party, as applicable, shall repudiate or deny its obligations thereunder, or any party to
a Contractor Agreement, a Panel Deposit Agreement or any Specified Party Document shall breach its
obligations thereunder and such breach shall remain unremedied for ten (10) days;



               (m) Environmental Liabilities. Any Credit Party or any of its Subsidiaries shall be
liable for any environmental liabilities or related costs the payment of which could reasonably be
expected to have a Material Adverse Effect; or



               (n) Proceedings. The indictment of any Credit Party or any of its Subsidiaries under
any criminal statute, or commencement of criminal or civil proceedings against any Credit Party or
any of its Subsidiaries pursuant to which statute or proceedings the penalties or remedies sought
or available include forfeiture to any Governmental Authority of any material portion of the
property of such Person; or



               (o) Cessation of Business. (i) Any Credit Party or any of its Subsidiaries or any
Specified Party is enjoined, restrained or in any way prevented by the order of any court or any
Governmental Authority from conducting all or any material part of its business for more



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than 15 days; (ii) any other cessation of a substantial part of the business of Company or any
of its Subsidiaries or any Specified Party for a period which materially and adversely affects
Company or any of its Subsidiaries or any Specified Party; or (iii) any material damage to, or
loss, theft or destruction of, any Collateral whether or not insured or any strike, lockout, labor
dispute, embargo, condemnation, act of God or public enemy, or other casualty which causes, for
more than 15 consecutive days, the cessation or substantial curtailment of revenue producing
activities at a Facility, if any such event or circumstance could reasonably be expected to have a
Material Adverse Effect; or




               (p) Material Supply Chain Disruptions; Loss of Material Accounts; Material Adverse
Effect. An event or development occurs that could reasonably be expected to (i) result in a
material disruption to the supply chain of the Company or any of its Subsidiaries, (ii) result in
the failure of any Specified Account Debtor to pay any Account owing to the Company or any of its
Subsidiaries in an amount in excess of $5,000,000 within 80 days after the due date specified on
the invoice relating to such Account or 200 days after the original date of the invoice relating to
such Account, or (iii) have a Material Adverse Effect.


THEN, (1) upon the occurrence of any Event of Default described in Section 8.1(f) or 8.1(g),
automatically, and (2) upon the occurrence of any other Event of Default, upon notice to the
Borrowers by Administrative Agent, (A) the Commitments, if any, of each Lender having such
Commitments and the obligation of Administrative Agent to procure, or the Issuing Bank to issue,
any Letter of Credit shall immediately terminate; (B) each of the following shall immediately
become due and payable, in each case without presentment, demand, protest or other requirements of
any kind, all of which are hereby expressly waived by each Credit Party: (I) the unpaid principal
amount of and accrued interest on the Loans, (II) an amount equal to the maximum amount that may at
any time be drawn under all Letters of Credit then outstanding (regardless of whether any
beneficiary under any such Letter of Credit shall have presented, or shall be entitled at such time
to present, the drafts or other documents or certificates required to draw under such Letters of
Credit), and (III) all other Obligations; provided, that the foregoing shall not affect in
any way the obligations of Lenders under Section 2.3(e); (C) Administrative Agent may cause
Collateral Agent to enforce any and all Liens and security interests created pursuant to Collateral
Documents; and (D) Administrative Agent shall direct Company to pay (and Company hereby agrees upon
receipt of such notice, or upon the occurrence of any Event of Default specified in Sections 8.1(f)
and (g) to pay) to Administrative Agent such additional amounts of cash, to be held as security for
Company’s reimbursement Obligations in respect of Letters of Credit then outstanding under
arrangements acceptable to Administrative Agent, equal to one hundred and five percent (105%) of
the Letter of Credit Usage at any time prior to the stated expiry of all outstanding Letters of
Credit.




     SECTION 9. AGENTS



          9.1 Appointment of Agents. Silver Point is hereby appointed Administrative Agent hereunder and under
the other Credit Documents and each Lender hereby authorizes Silver Point, in such capacity, to act
as its agent in accordance with the terms hereof and the other Credit Documents. Silver Point is
hereby appointed Borrowing Base Agent hereunder and under the other Credit Documents and each
Lender hereby authorizes Silver Point, in such capacity, to act as its agent in accordance with the
terms hereof and the other Credit Documents. Silver Point is



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hereby appointed Collateral Agent hereunder and under the other Credit Documents, and each Lender
hereby authorizes Silver Point to act as its agent in accordance with the terms hereof and the
other Credit Documents. In each case, such appointment and authorization includes, without
limitation, the authority to make the Loans and Agent Advances, for such Agent or on behalf of the
applicable Lenders as provided in this Agreement or any other Credit Document and to perform,
exercise, and enforce any and all other rights and remedies of the Lenders with respect to the
Credit Parties, the Obligations, or otherwise related to any of same to the extent reasonably
incidental to the exercise by such Agent of the rights and remedies specifically authorized to be
exercised by such Agent by the terms of this Agreement or any other Credit Document. Each Agent
hereby agrees to act upon the express conditions contained herein and the other Credit Documents,
as applicable. The provisions of this Section 9 are solely for the benefit of Agents and Lenders
and no Credit Party shall have any rights as a third party beneficiary of any of the provisions
thereof. In performing its functions and duties hereunder, each Agent shall act solely as an agent
of Lenders and does not assume and shall not be deemed to have assumed any obligation towards or
relationship of agency or trust with or for Company or any of its Subsidiaries.




          9.2 Powers and Duties. Each Lender irrevocably authorizes each Agent to take such action on such
Lender’s behalf and to exercise such powers, rights and remedies and perform such duties hereunder
and under the other Credit Documents as are specifically delegated or granted to such Agent by the
terms hereof and thereof, together with such actions, powers, rights and remedies as are reasonably
incidental thereto. Each Agent shall have only those duties and responsibilities that are
expressly specified herein and the other Credit Documents. Each Agent may exercise such powers,
rights and remedies and perform such duties by or through its agents or employees. No Agent shall
have or be deemed to have, by reason hereof or any of the other Credit Documents, a fiduciary
relationship in respect of any Lender; and nothing herein or any of the other Credit Documents,
expressed or implied, is intended to or shall be so construed as to impose upon any Agent any
obligations in respect hereof or any of the other Credit Documents except as expressly set forth
herein or therein.




          9.3 General Immunity.




               (a) No Responsibility for Certain Matters. No Agent shall be responsible to any Lender for the
execution, effectiveness, genuineness, validity, enforceability, collectability or sufficiency
hereof or any other Credit Document or for any representations, warranties, recitals or statements
made herein or therein or made in any written or oral statements or in any financial or other
statements, instruments, reports or certificates or any other documents furnished or made by any
Agent to Lenders or by or on behalf of any Credit Party to any Agent or any Lender in connection
with the Credit Documents and the transactions contemplated thereby or for the financial condition
or business affairs of any Credit Party or any other Person liable for the payment of any
Obligations, nor shall any Agent be required to ascertain or inquire as to the performance or
observance of any of the terms, conditions, provisions, covenants or agreements contained in any of
the Credit Documents or as to the use of the proceeds of the Loans or as to the existence or
possible existence of any Event of Default or Default or to make any disclosures with respect to
the foregoing. Anything contained herein to the contrary notwithstanding, neither Administrative
Agent nor Borrowing Base Agent shall have any



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liability arising from confirmations of the amount of outstanding Loans or the Letter of Credit
Usage or the component amounts thereof.



               (b) Exculpatory Provisions. No Agent nor any of its officers, partners, directors, employees
or agents shall be liable to Lenders for any action taken or omitted by any Agent under or in
connection with any of the Credit Documents except to the extent caused by such Agent’s gross
negligence or willful misconduct as determined by a court of competent jurisdiction in a final,
nonappealable order. Each Agent shall be entitled to refrain from any act or the taking of any
action (including the failure to take an action) in connection herewith or any of the other Credit
Documents or from the exercise of any power, discretion or authority vested in it hereunder or
thereunder unless and until such Agent shall have received instructions in respect thereof from
Requisite Lenders (or such other Lenders as may be required to give such instructions under Section
10.5) or, in the case of the Collateral Agent, in accordance with the Pledge and Security Agreement
or other applicable Collateral Document, and, upon receipt of such instructions from Requisite
Lenders (or such other Lenders, as the case may be), or in accordance with the Pledge and Security
Agreement or other applicable Collateral Document, as the case may be, such Agent shall be entitled
to act or (where so instructed) refrain from acting, or to exercise such power, discretion or
authority, in accordance with such instructions. Without prejudice to the generality of the
foregoing, (i) each Agent shall be entitled to rely, and shall be fully protected in relying, upon
any communication, instrument or document believed by it to be genuine and correct and to have been
signed or sent by the proper Person or Persons, and shall be entitled to rely and shall be
protected and free from liability in relying on opinions and judgments of attorneys (who may be
attorneys for the Credit Parties), accountants, experts and other professional advisors selected by
it; and (ii) no Lender shall have any right of action whatsoever against any Agent as a result of
such Agent acting or (where so instructed) refraining from acting hereunder or any of the other
Credit Documents in accordance with the instructions of Requisite Lenders (or such other Lenders as
may be required to give such instructions under Section 10.5) or, in the case of the Collateral
Agent, in accordance with the Pledge and Security Agreement or other applicable Collateral
Document, or, in the case of the Borrowing Base Agent, in accordance with the terms of this
Agreement.



               (c) Notice of Default. The Administrative Agent shall not be deemed to have knowledge or
notice of the occurrence of any Default or Event of Default, except with respect to Events of
Default in the payment of principal, interest and fees required to be paid to Administrative Agent
for the account of the Lenders, unless Administrative Agent shall have received written notice from
a Lender or any Credit Party referring to this Agreement, describing such Default or Event of
Default and stating that such notice is a “notice of default.” The Administrative Agent will
notify the Lenders of its receipt of any such notice. The Administrative Agent shall take such
action with respect to any such Default or Event of Default as may be directed by the Requisite
Lenders in accordance with Section 8; provided, however, that unless and until Administrative Agent
has received any such direction, Administrative Agent may (but shall not be obligated to) take such
action, or refrain from taking such action, with respect to such Default or Event of Default as it
shall deem advisable or in the best interest of the Lenders.



          9.4 Agents Entitled to Act as Lender. The agency hereby created shall in no way impair or affect any
of the rights and powers of, or impose any duties or obligations upon, any



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Agent in its individual capacity as a Lender hereunder. With respect to its participation in the
Loans and the Letters of Credit, each Agent shall have the same rights and powers hereunder as any
other Lender and may exercise the same as if it were not performing the duties and functions
delegated to it hereunder, and the term "Lender” shall, unless the context clearly otherwise
indicates, include each Agent in its individual capacity. Any Agent and its Affiliates may accept
deposits from, lend money to, own securities of, and generally engage in any kind of banking,
trust, financial advisory or other business with Company or any of its Affiliates as if it were not
performing the duties specified herein, and may accept fees and other consideration from the Credit
Parties for services in connection herewith and otherwise without having to account for the same to
Lenders.




          9.5 Lenders’ Representations, Warranties and Acknowledgment.




               (a) Each Lender represents and warrants that it has made its own independent investigation of
the financial condition and affairs of Company and its Subsidiaries, without reliance upon any
Agent or any other Lender and based on such documents and information as it has deemed appropriate,
in connection with Credit Extensions hereunder and that it has made and shall continue to make its
own appraisal of the creditworthiness of Company and its Subsidiaries. No Agent shall have any
duty or responsibility, either initially or on a continuing basis, to make any such investigation
or any such appraisal on behalf of Lenders or to provide any Lender with any credit or other
information with respect thereto, whether coming into its possession before the making of the Loans
or at any time or times thereafter, and no Agent shall have any responsibility with respect to the
accuracy of or the completeness of any information provided to Lenders.



               (b) Each Lender, by delivering its signature page to this Agreement and funding its Tranche
A Term Loan, Tranche A-1 Term Loan and/or Revolving Loans on the Closing Date, as the case may be,
shall be deemed to have acknowledged receipt of, and consented to and approved, each Credit
Document and each other document required to be approved by any Agent, Requisite Lenders or
Lenders, as applicable on the Closing Date.



          9.6 Right to Indemnity. Each Lender, in proportion to its Pro Rata Share, severally agrees to
indemnify each Agent, their Affiliates and their respective officers, partners, directors,
trustees, employees, representatives and agents of each Agent (each, an "Indemnitee Agent Party"),
to the extent that such Indemnitee Agent Party shall not have been reimbursed by any Credit Party,
for and against any and all liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses (including counsel fees and disbursements) or disbursements of
any kind or nature whatsoever which may be imposed on, incurred by or asserted against such
Indemnitee Agent Party in exercising its powers, rights and remedies or performing its duties
hereunder or under the other Credit Documents or otherwise in its capacity as such Indemnitee Agent
Party in any way relating to or arising out of this Agreement or the other Credit Documents, IN ALL
CASES, WHETHER OR NOT CAUSED BY OR ARISING, IN WHOLE OR IN PART, OUT OF THE COMPARATIVE,
CONTRIBUTORY, OR SOLE NEGLIGENCE OF SUCH INDEMNITEE AGENT PARTY; provided, that no Lender
shall be liable for any portion of such liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements resulting from such Indemnitee Agent
Party’s gross negligence or willful misconduct as determined by a



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court of competent jurisdiction in a final, nonappealable order. If any indemnity furnished to any
Indemnitee Agent Party for any purpose shall, in the opinion of such Indemnitee Agent Party, be
insufficient or become impaired, such Indemnitee Agent Party may call for additional indemnity and
cease, or not commence, to do the acts indemnified against until such additional indemnity is
furnished; provided, that in no event shall this sentence require any Lender to indemnify
any Indemnitee Agent Party against any liability, obligation, loss, damage, penalty, action,
judgment, suit, cost, expense or disbursement in excess of such Lender’s Pro Rata Share thereof;
and provided further, that this sentence shall not be deemed to require any Lender
to indemnify any Indemnitee Agent Party against any liability, obligation, loss, damage, penalty,
action, judgment, suit, cost, expense or disbursement described in the proviso in the immediately
preceding sentence.




          9.7 Successor Administrative Agent.




               (a) At any time, Administrative Agent and Collateral Agent may (and, at the request of the
Requisite Class Lenders for the Lenders having Revolving Exposure, following the repayment of the
Term Loans in full, shall) resign by giving thirty (30) days’ prior written notice thereof to
Lenders and the Borrowers. Upon any such notice of resignation, Requisite Lenders shall have the
right, upon five Business Days’ notice to Company, to appoint a successor Administrative Agent and
Collateral Agent. If no successor shall have been so appointed by the Requisite Lenders and shall
have accepted such appointment within thirty (30) days after the retiring Administrative Agent and
Collateral Agent gives notice of its resignation, then the retiring Administrative Agent and
Collateral Agent may, on behalf of the Lenders and the Issuing Bank, appoint a successor
Administrative Agent and Collateral Agent from among the Lenders. Upon the acceptance of any
appointment as Administrative Agent and Collateral Agent hereunder by a successor Administrative
Agent and Collateral Agent, that successor Administrative Agent and Collateral Agent shall
thereupon succeed to and become vested with all the rights, powers, privileges and duties of the
retiring Administrative Agent and Collateral Agent and the retiring Administrative Agent and
Collateral Agent shall promptly (i) transfer to such successor Administrative Agent and Collateral
Agent all sums, Securities and other items of Collateral held under the Collateral Documents,
together with all records and other documents necessary or appropriate in connection with the
performance of the duties of the successor Administrative Agent and Collateral Agent under the
Credit Documents, and (ii) execute and deliver to such successor Administrative Agent and
Collateral Agent such amendments to financing statements, and take such other actions, as may be
necessary or appropriate in connection with the assignment to such successor Administrative Agent
and Collateral Agent of the security interests created under the Collateral Documents, whereupon
such retiring Administrative Agent and Collateral Agent shall be discharged from its duties and
obligations hereunder. After any retiring Administrative Agent’s and Collateral Agent’s
resignation hereunder as Administrative Agent and Collateral Agent, the provisions of this Section
9 shall inure to its benefit as to any actions taken or omitted to be taken by it while it was
Administrative Agent hereunder.



               (b) Notwithstanding anything herein to the contrary, Administrative Agent may assign its
rights and duties as Administrative Agent hereunder to an Affiliate or Related Fund of Silver Point
without the prior written consent of, or prior written notice to, any Credit Party or any Lender;
provided that the Credit Parties and the Lenders may deem and treat such



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assigning Administrative Agent as Administrative Agent for all purposes hereof, unless and
until such assigning Administrative Agent provides written notice to the Borrowers and the Lenders
of such assignment. Upon such assignment such Affiliate shall succeed to and become vested with
all rights, powers, privileges and duties as Administrative Agent hereunder and under the other
Credit Documents.



               (c) Delegation of Duties. Administrative Agent may perform any and all of its duties
and exercise its rights and powers under this Agreement or under any other Credit Document by or
through any one or more sub-agents appointed by Administrative Agent. Administrative Agent and any
such sub-agent may perform any and all of its duties and exercise its rights and powers by or
through their respective Affiliates. The exculpatory, indemnification and other provisions of this
Article 9 shall apply to any the Affiliates of Administrative Agent and shall apply to their
respective activities in connection with the syndication of the credit facilities provided for
herein as well as activities as Administrative Agent. All of the rights, benefits and privileges
(including the exculpatory and indemnification provisions) of this Article 9 shall apply to any
such sub-agent and to the Affiliates of any such sub-agent, and shall apply to their respective
activities as sub-agent as if such sub-agent and Affiliates were named herein. Notwithstanding
anything herein to the contrary, with respect to each sub-agent appointed by Administrative Agent,
(i) such sub-agent shall be a third party beneficiary under this Agreement with respect to all such
rights, benefits and privileges (including exculpatory and rights to indemnification) and shall
have all of the rights, benefits and privileges of a third party beneficiary, including an
independent right of action to enforce such rights, benefits and privileges (including exculpatory
rights and rights to indemnification) directly, without the consent or joinder of any other Person,
against any or all of the Credit Parties and the Lenders, (ii) such rights, benefits and privileges
(including exculpatory rights and rights to indemnification) shall not be modified or amended
without the consent of such sub-agent, and (iii) such sub-agent shall only have obligations to
Administrative Agent and not to any Credit Party, Lender or any other Person and no Credit Party,
Lender or any other Person shall have the rights, directly or indirectly, as a third party
beneficiary or otherwise, against such sub-agent.



               (d) Borrowing Base Agent may resign at any time by giving thirty (30) days’ prior written
notice thereof to Lenders and Borrowers. Upon any such notice of resignation, the Requisite Class
of Lenders having Revolving Exposure shall have the right, upon five Business Days’ notice to
Borrowers and with the consent of the Administrative Agent, to appoint a successor Borrowing Base
Agent. If no successor shall have been so appointed by the Requisite Class of Lenders having
Revolving Exposure and shall have accepted such appointment within thirty (30) days after the
retiring Borrowing Base Agent gives notice of its resignation, then the retiring Borrowing Base
Agent may, on behalf of the Lenders and the Issuing Bank appoint a successor Borrowing Base Agent
from among the Lenders. Upon the acceptance of any appointment as Borrowing Base Agent hereunder
by a successor Borrowing Base Agent, that successor Borrowing Base Agent shall thereupon succeed to
and become vested with all the rights, powers, privileges and duties of the retiring Borrowing Base
Agent and the retiring Borrowing Base Agent shall promptly (i) transfer to such successor Borrowing
Base Agent all sums, Securities and other items of Collateral held under the Collateral Documents,
together with all records and other documents necessary or appropriate in connection with the
performance of the duties of the successor Borrowing Base Agent under the Credit Documents, and
(ii) execute and deliver to such successor Borrowing Base Agent such amendments to financing
statements,



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and take such other actions, as may be necessary or appropriate in connection with the
assignment to such successor Borrowing Base Agent of the security interests created under the
Collateral Documents, whereupon such retiring Borrowing Base Agent shall be discharged from its
duties and obligations hereunder. After any retiring Borrowing Base Agent’s resignation hereunder
as Borrowing Base Agent, the provisions of this Section 9 shall inure to its benefit as to any
actions taken or omitted to be taken by it while it was Borrowing Base Agent hereunder.



          9.8 Collateral Matters, Collateral, Documents and Guaranty.




               (a) Agents under Collateral Documents and Guaranty. Each Lender hereby further irrevocably
authorizes Administrative Agent or Collateral Agent, as applicable, on behalf of and for the
benefit of Lenders, to be the agent for and representative of Lenders with respect to the Guaranty,
the Collateral, the Collateral Documents and the Credit Documents. Subject to Section 10.5,
without further written consent or authorization from Lenders, Administrative Agent or Collateral
Agent, as applicable, may execute any documents or instruments necessary to (i) release any Lien
encumbering any item of Collateral that is the subject of a sale or other disposition of assets
permitted hereby or to which Requisite Lenders (or such other Lenders as may be required to give
such consent under Section 10.5) have otherwise consented, or (ii) release any Guarantor from the
Guaranty pursuant to Section 7.12 or with respect to which Requisite Lenders (or such other Lenders
as may be required to give such consent under Section 10.5) have otherwise consented.



               (b) Right to Realize on Collateral and Enforce Guaranty. Anything contained in any of the
Credit Documents to the contrary notwithstanding, each Borrower, Administrative Agent, Collateral
Agent and each Lender hereby agree that (i) no Lender shall have any right individually to realize
upon any of the Collateral or to enforce the Guaranty, it being understood and agreed that all
powers, rights and remedies hereunder may be exercised solely by Administrative Agent, on behalf of
Lenders in accordance with the terms hereof and all powers, rights and remedies under the
Collateral Documents may be exercised solely by Collateral Agent, and (ii) in the event of a
foreclosure by Collateral Agent on any of the Collateral pursuant to a public or private sale,
Collateral Agent or any Lender may be the purchaser of any or all of such Collateral at any such
sale and Collateral Agent, as agent for and representative of Secured Parties (but not any Lender
or Lenders in its or their respective individual capacities unless Requisite Lenders shall
otherwise agree in writing) shall be entitled, for the purpose of bidding and making settlement or
payment of the purchase price for all or any portion of the Collateral sold at any such public
sale, to use and apply any of the Obligations as a credit on account of the purchase price for any
collateral payable by Collateral Agent at such sale.



               (c) Agent Advances. Subject to the terms of any separate written agreement among the Agents
and the Lenders, any Agent may from time to time make such disbursements and advances ((“Agent
Advances”) in an amount not to exceed the lesser of (x) $10,000,000, and (y) 10.0% of the Borrowing
Base (at the time such Agent Advance is made), in the aggregate; provided, that the
aggregate amount of Agent Advances shall either (A) not exceed the difference between (i) the
aggregate Revolving Commitments of all Lenders and (ii) the Total Utilization of Revolving
Commitments or (B) not exceed the Borrowing Base less the sum of (i) the Total Utilization
Revolving Commitments and (ii) the aggregate principal amount of Term Loans outstanding) which such
Agent, in its sole discretion, deems necessary or desirable



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to preserve, protect, prepare for sale or lease or dispose of the Collateral or any portion
thereof, to enhance the likelihood or maximize the amount of repayment by the Applicable Borrowers
of the Loans, Letter of Credit usage and other Obligations or to pay any other amount chargeable to
the Applicable Borrowers pursuant to the terms of this Agreement, including, without limitation,
costs, fees and expenses as described in Section 10.2 and Section 10.3. The Agent Advances shall
be repayable by the Borrowers on demand and be secured by the Collateral and shall bear interest at
a rate per annum equal to the rate then applicable to Base Rate Loans. The Agent Advances shall
constitute Obligations hereunder which may be charged to the Borrowing Base Agent Loan Account in
accordance with Section 2.15(f). Without limitation to its obligations pursuant to Section 9.3,
each Lender agrees that it shall make available to the Agent making such Agent Advances, upon such
Agent’s demand, in Dollars in immediately available funds, the amount equal to such Lender’s Pro
Rata Share of each such Agent Advance. If such funds are not made available to the Agent making
such Agent Advances by such Lender, such Agent shall be entitled to recover such funds on demand
from such Lender, together with interest thereon for each day from the date such payment was due
until the date such amount is paid to such Agent, at the Federal Funds Rate for 3 Business Days and
thereafter at the Base Rate.



          9.9 Posting of Approved Electronic Communications.




               (a) Delivery of Communications. Each Credit Party hereby agrees, unless directed otherwise by
Administrative Agent or unless the electronic mail address referred to below has not been provided
by Administrative Agent to such Credit Party that it will, or will cause its Subsidiaries to,
provide to Administrative Agent all information, documents and other materials that it is obligated
to furnish to Administrative Agent or to the Lenders pursuant to the Credit Documents, including
all notices, requests, financial statements, financial and other reports, certificates and other
information materials, but excluding any such communication that (i) is or relates to a Funding
Notice or a Conversion/Continuation Notice, (ii) relates to the payment of any principal or other
amount due under this Agreement prior to the scheduled date therefor, (iii) provides notice of any
Default under this Agreement or any other Credit Document or (iv) is required to be delivered to
satisfy any condition precedent to the effectiveness of this Agreement and/or any Loan or other
extension of credit hereunder (all such non-excluded communications being referred to herein
collectively as “Communications”), by transmitting the Communications in an electronic/soft medium
that is properly identified in a format acceptable to Administrative Agent to an electronic mail
address as directed by Administrative Agent. In addition, each Credit Party agrees, and agrees to
cause its Subsidiaries, to continue to provide the Communications to Administrative Agent or the
Lenders, as the case may be, in the manner specified in the Credit Documents but only to the extent
requested by Administrative Agent.



               (b) Platform. Each Credit Party further agrees that Administrative Agent may make the
Communications available to the Lenders by posting the Communications on Intralinks or a
substantially similar electronic transmission system (the “Platform”).



               (c) No Warranties as to Platform. THE PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE”. THE
INDEMNITEES DO NOT WARRANT THE ACCURACY OR COMPLETENESS OF THE COMMUNICATIONS OR THE ADEQUACY OF
THE PLATFORM AND EXPRESSLY DISCLAIM LIABILITY FOR ERRORS OR OMISSIONS IN



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THE COMMUNICATIONS. NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY
OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR
FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS IS MADE BY THE INDEMNITEES IN CONNECTION WITH THE
COMMUNICATIONS OR THE PLATFORM. IN NO EVENT SHALL THE INDEMNITEES HAVE ANY LIABILITY TO ANY LENDER
OR ANY OTHER PERSON FOR DAMAGES OF ANY KIND, WHETHER OR NOT BASED ON STRICT LIABILITY AND INCLUDING
DIRECT OR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOSSES OR EXPENSES (WHETHER IN
TORT, CONTRACT OR OTHERWISE) ARISING OUT OF ADMINISTRATIVE AGENT’S TRANSMISSION OF COMMUNICATIONS
THROUGH THE INTERNET, EXCEPT TO THE EXTENT THE LIABILITY OF ANY INDEMNITEES IS FOUND IN A FINAL,
NONAPPEALABLE ORDER BY A COURT OF COMPETENT JURISDICTION TO HAVE RESULTED PRIMARILY FROM SUCH
INDEMNITEE’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.



               (d) Delivery Via Platform. Administrative Agent agrees that the receipt of the Communications
by Administrative Agent at its electronic mail address set forth above shall constitute effective
delivery of the Communications to Administrative Agent for purposes of the Credit Documents. Each
Lender agrees that receipt of notice to it (as provided in the next sentence) specifying that the
Communications have been posted to the Platform shall constitute effective delivery of the
Communications to such Lender for purposes of the Credit Documents. Each Lender agrees to notify
Administrative Agent in writing (including by electronic communication) from time to time of such
Lender’s electronic mail address to which the foregoing notice may be sent by electronic
transmission and that the foregoing notice may be sent to such electronic mail address.



               (e) No Prejudice to Notice Rights. Nothing herein shall prejudice the right of Administrative
Agent or any Lender to give any notice or other communication pursuant to any Credit Document in
any other manner specified in such Credit Document.



          9.10 Proofs of Claim. The Lenders and each Credit Party hereby agree that after the occurrence of an
Event of Default pursuant to Sections 8.1(f) or (g), in case of the pendency of any receivership,
insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to a Credit Party, Administrative Agent (irrespective of whether the
principal of any Loan shall then be due and payable as herein expressed or by declaration or
otherwise and irrespective of whether Administrative Agent shall have made any demand on any of any
Credit Party or any other Person) shall be entitled and empowered, by intervention in such
proceeding or otherwise:




               (a) to file and prove a claim for the whole amount of principal and interest owing and unpaid
in respect of the Loans and any other Obligations that are owing and unpaid and to file such other
papers or documents as may be necessary or advisable in order to have the claims of the Lenders,
Administrative Agent and other Agents (including any claim for the reasonable compensation,
expenses, disbursements and advances of the Lenders, Administrative Agent and other agents and
their agents and counsel and all other amounts due Lenders, Administrative Agent and other agents
hereunder) allowed in such judicial proceeding; and



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               (b) to collect and receive any moneys or other property payable or deliverable on any such
claims and to distribute the same;


and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official
in any such judicial proceeding is hereby authorized by each Lender to make such payments to
Administrative Agent and, in the event that Administrative Agent shall consent to the making of
such payments directly to the Lenders, to, subject to Section 2.15(h), pay to Administrative Agent
any amount due for the reasonable compensation, expenses, disbursements and advances of
Administrative Agent and its agents and counsel, and any other amounts due Administrative Agent and
other agents hereunder. Nothing herein contained shall be deemed to authorize Administrative Agent
to authorize or consent to or accept or adopt on behalf of any Lender any plan of reorganization,
arrangement, adjustment or composition affecting the Obligations or the rights of any Lenders or to
authorize Administrative Agent to vote in respect of the claim of any Lender in any such
proceeding. Further, nothing contained in this Section 9.10 shall affect or preclude the ability
of any Lender to (i) file and prove such a claim in the event that Administrative Agent has not
acted within ten (10) days prior to any applicable bar date and (ii) require an amendment of the
proof of claim to accurately reflect such Lender’s outstanding Obligations.




          9.11 Agents and Arrangers. Except as otherwise set forth herein, no arrangers shall have any right,
power, obligation, liability, responsibility or duty under this Agreement (or any other Credit
Document) other than those applicable to all Lenders as such. Without limiting the foregoing, no
arrangers shall have or be deemed to have any fiduciary relationship with any other Lender. Each
Lender acknowledges that it has not relied, and will not rely, on any arranger in deciding to enter
into this Agreement and each other Credit Document to which it is a party or in taking or not
taking action hereunder or thereunder.




     SECTION 10. MISCELLANEOUS



          10.1 Notices. Unless otherwise specifically provided herein, any notice or other communication herein
required or permitted to be given to a Credit Party, Issuing Bank, Borrowing Base Agent or an
Agent, shall be sent to such Person’s address as set forth on Appendix B or in the other relevant
Credit Document, and in the case of any Lender, the address as indicated on Appendix B or otherwise
indicated to Administrative Agent in writing. Each notice hereunder shall be in writing and may be
personally served, telexed or sent by telefacsimile or United States mail or courier service and
shall be deemed to have been given when delivered in person or by courier service and signed for
against receipt thereof, upon receipt of telefacsimile or telex, or three Business Days after
depositing it in the United States mail with postage prepaid and properly addressed;
provided that, no notice to any Issuing Bank, Agent or Borrowing Base Agent shall be
effective until received by Issuing Bank, such Agent or Borrowing Base Agent.




          10.2 Expenses. Whether or not the transactions contemplated hereby shall be consummated, Company agrees
to pay promptly, and in any event within five (5) Business Days after written demand therefor, (a)
all the actual and reasonable costs and expenses of preparation of the Credit Documents and any
consents, amendments, waivers or other modifications thereto; (b) all the costs of furnishing all
opinions by counsel for Company and the other Credit Parties;




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(c) the fees, expenses and disbursements of counsel to Agents and Borrowing Base Agent (including
allocated costs of internal counsel) in connection with the negotiation, preparation, execution and
administration of the Credit Documents and any consents, amendments, waivers or other modifications
thereto and any other documents or matters requested by any Credit Party; (d) all the actual costs
and expenses of creating and perfecting (or the non-U.S. equivalent thereof) Liens in favor of
Collateral Agent, for the benefit of Secured Parties pursuant hereto, including filing and
recording fees, expenses and amounts owed pursuant to Section 2.19(c) and (d), search fees, title
insurance premiums and fees, expenses and disbursements of counsel to each Agent and Borrowing Base
Agent and of counsel providing any opinions that any Agent, Borrowing Base Agent or Requisite
Lenders may request in respect of the Collateral or the Liens created pursuant to the Collateral
Documents; (e) all the actual costs and fees, expenses and disbursements of any auditors,
accountants, consultants or appraisers whether internal or external; (f) all the actual costs and
expenses (including the fees, expenses and disbursements of counsel (including allocated costs of
internal counsel) and of any appraisers, consultants, advisors and agents employed or retained by
Collateral Agent and its counsel) in connection with the custody or preservation of any of the
Collateral; (g) all other actual and costs and expenses incurred by each Agent and Borrowing Base
Agent in connection with due diligence, the syndication of the Loans and Commitments and the
negotiation, preparation and execution of the Credit Documents and any consents, amendments,
waivers or other modifications thereto and the transactions contemplated thereby; (h) reasonable
out of pocket expenses incurred by any Agent and Borrowing Base Agent in connection with having the
Loans rated by one or more rating agencies; and (i) after the occurrence of a Default or an Event
of Default, all costs and expenses, including attorneys’ fees (including allocated costs of
internal counsel) and costs of settlement, incurred by any Agent, Borrowing Base Agent and Lenders
in enforcing any Obligations of or in collecting any payments due from any Credit Party hereunder
or under the other Credit Documents by reason of such Default or Event of Default (including in
connection with the sale of, collection from, or other realization upon any of the Collateral or
the enforcement of the Guaranty) or in connection with any refinancing or restructuring of the
credit arrangements provided hereunder in the nature of a "work out” or pursuant to any insolvency
or bankruptcy cases or proceedings.




          10.3 Indemnity.




               (a) In addition to the payment of expenses pursuant to Section 10.2, whether or not the
transactions contemplated hereby shall be consummated, each Credit Party agrees to defend (subject
to Indemnitees’ selection of counsel), indemnify, pay and hold harmless, each Agent, Borrowing Base
Agent and Lender, their Affiliates and their respective officers, partners, directors, trustees,
employees, representatives, attorneys, advisors and agents of each Agent, Borrowing Base Agent and
each Lender (each, an "Indemnitee"), from and against any and all Indemnified Liabilities, IN ALL
CASES, WHETHER OR NOT CAUSED BY OR ARISING, IN WHOLE OR IN PART, OUT OF THE COMPARATIVE,
CONTRIBUTORY, OR SOLE NEGLIGENCE OF SUCH INDEMNITEE; provided that, no Credit Party shall
have any obligation to any Indemnitee hereunder with respect to any Indemnified Liabilities to the
extent such Indemnified Liabilities arise from the gross negligence or willful misconduct of that
Indemnitee to the extent determined pursuant to a final nonappealable judgment of a court of
competent jurisdiction. To the extent that the undertakings to defend, indemnify, pay and hold
harmless set forth in this Section 10.3 may be unenforceable in whole or in part because they are



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violative of any law or public policy, the applicable Credit Party shall contribute the
maximum portion that it is permitted to pay and satisfy under applicable law to the payment and
satisfaction of all Indemnified Liabilities incurred by Indemnitees or any of them.



               (b) To the extent permitted by applicable law, no Credit Party shall assert, and each Credit
Party hereby waives, any claim against Lenders, Agents, Borrowing Base Agent, Issuing Bank and
their respective Affiliates, directors, employees, representatives, attorneys, advisors or agents,
on any theory of liability, for special, indirect, consequential or punitive damages (as opposed
to direct or actual damages) (whether or not the claim therefor is based on contract, tort or duty
imposed by any applicable legal requirement) arising out of, in connection with, as a result of, or
in any way related to, this Agreement or any Credit Document or any agreement or instrument
contemplated hereby or thereby or referred to herein or therein, the transactions contemplated
hereby or thereby, any Loan or the use of the proceeds thereof or any act or omission or event
occurring in connection therewith, and each Credit Party hereby waives, releases and agrees not to
sue upon any such claim or any such damages, whether or not accrued and whether or not known or
suspected to exist in its favor.



          10.4 Set Off. In addition to any rights now or hereafter granted under applicable law and not
by way of limitation of any such rights, upon the occurrence of any Event of Default each Lender,
Issuing Bank, and their respective Affiliates is hereby authorized by each Credit Party at any time
or from time to time subject to the consent of Administrative Agent (such consent not to be
unreasonably withheld or delayed), without notice to any Credit Party or to any other Person (other
than Administrative Agent), any such notice being hereby expressly waived, to set off and to
appropriate and to apply any and all deposits (general or special, including Indebtedness evidenced
by certificates of deposit, whether matured or unmatured, but not including trust accounts (in
whatever currency)) and any other Indebtedness at any time held or owing by such Lender to or for
the credit or the account of any Credit Party (in whatever currency) against and on account of the
obligations and liabilities of any Credit Party to such Lender or Issuing Bank hereunder, the
Letters of Credit and participations in any L/C Funding Support and under the other Credit
Documents, including all claims of any nature or description arising out of or connected hereto,
the Letters of Credit and participations in any L/C Funding Support or with any other Credit
Document, irrespective of whether or not (a) such Lender shall have made any demand hereunder, (b)
the principal of or the interest on the Loans or any amounts in respect of the Letters of Credit or
any L/C Funding Support or any other amounts due hereunder shall have become due and payable
pursuant to Section 2 and although such obligations and liabilities, or any of them, may be
contingent or unmatured or (c) such obligation or liability is owed to a branch or office of such
Lender or Issuing Bank different from the branch or office holding such deposit or obligation or
such Indebtedness.




          10.5 Amendments and Waivers.




               (a) Requisite Lenders’ Consent. Subject to Sections 10.5(b) and 10.5(c), no amendment,
modification, termination or waiver of any provision of the Credit Documents, or consent to any
departure by any Credit Party therefrom, shall in any event be effective without the written
concurrence of (i) in the case of this Agreement, Administrative Agent and the Requisite Lenders or
(ii) in the case of any other Credit Document, Administrative Agent and, if party thereto, the
Collateral Agent, in each case, with the consent of the Requisite Lenders.



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               (b) Affected Lenders’ Consent. Without the written consent of each Lender (other than a
Defaulting Lender) that would be affected thereby, no amendment, modification, termination, or
consent shall be effective if the effect thereof would:



                    (i) extend the scheduled final maturity of any Loan or Note of such Lender;



                    (ii) waive, reduce or postpone any scheduled repayment due such Lender, any mandatory
prepayment due such Lender pursuant to Section 2.13 or any right of such Lender to waive a
prepayment due such Lender pursuant to Section 2.13;



                    (iii) extend the stated expiration date of any Letter of Credit beyond the Revolving
Commitment Termination Date;



                    (iv) reduce the rate of interest on any Loan of such Lender (other than any amendment to the
definition of "Default Rate” and any waiver of any increase in the interest rate applicable to any
Loan pursuant to Section 2.9 (each of which may be affected by consent of the Requisite Lenders))
or any fee, in each case, payable hereunder to such Lender;



                    (v) extend the time for payment of any such interest or fees to such Lender;



                    (vi) reduce the principal amount of any Loan or any reimbursement or other funding obligation
in respect of any Letter of Credit of such Lender;



                    (vii) amend, modify, terminate or waive any provision of this Section 10.5(b) or Section
10.5(c);



                    (viii) amend
the definition of “Requisite Lenders” or
“Pro Rata Share”;



                    (ix) release all or substantially all of the Collateral or all or substantially all of the
Guarantors from the Guaranty except as expressly provided in the Credit Documents; or



                    (x) consent to the assignment or transfer by any Credit Party of any of its rights and
obligations under any Credit Document;


provided, however, that the Fee Letter may be amended or modified, or the rights or
privileges thereunder waived, in a writing executed only by the parties thereto.




               (c) Other Consents. No amendment, modification, termination or waiver of any provision of the
Credit Documents, or consent to any departure by any Credit Party therefrom, shall:



                    (i) increase any Revolving Commitment of any Lender over the amount thereof then in effect
without the consent of such Lender; provided, that no



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amendment, modification or waiver of any condition precedent, covenant, Default or Event of
Default shall constitute an increase in any Revolving Commitment of any Lender;



                    (ii) without the consent of Requisite Class Lenders of Lenders having Revolving Exposure,
amend, modify or waive (A) the definitions of the terms “Account(s)”, “Account Debtor”,
“Availability”, “Borrowing Base”, “Borrowing Base Agent”, “Borrowing Base Certificate”, “Dilution”,
“Dilution Reserve”, “Eligible Account”, “Eligible Foreign Account”, “Eligible Inventory”, “Eligible
Panel Inventory”, “Inventory”, “Net Amount of Eligible Accounts”, “Net Amount of Eligible Foreign
Receivables” if, in each case, such changes result in making additional credit available to
Borrowers; or (B) Section 2.14(a);



                    (iii) amend, modify, terminate or waive any obligation of Lenders relating to the purchase of
participations in Letters of Credit as provided in Section 2.3 without the written consent of
Administrative Agent and of Issuing Bank; or



                    (iv) amend, modify, terminate or waive any provision of Section 9 as the same applies to any
Agent, Issuing Bank or Borrowing Base Agent, or any other provision hereof as the same applies to
the rights or obligations of any Agent, Issuing Bank or Borrowing Base Agent, in each case without
the consent of such Agent, Issuing Bank or Borrowing Base Agent, as applicable.


Notwithstanding anything to the contrary herein, no Defaulting Lender shall have any right to
approve or disapprove any amendment, modification, waiver or consent hereunder, except that the
Commitment of such Lender may not be increased or extended without the consent of such Lender.




               (d) Execution of Amendments, etc. Administrative Agent may, but shall have no obligation to,
with the concurrence of any Lender, execute amendments, modifications, waivers or consents on
behalf of such Lender. Any waiver or consent shall be effective only in the specific instance and
for the specific purpose for which it was given. No notice to or demand on any Credit Party in any
case shall entitle any Credit Party to any other or further notice or demand in similar or other
circumstances. Any amendment, modification, termination, waiver or consent effected in accordance
with this Section 10.5 shall be binding upon each Lender at the time outstanding, each future
Lender and, if signed by a Credit Party, on such Credit Party.



          10.6 Successors and Assigns; Participations.




               (a) Generally. This Agreement shall be binding upon the parties hereto and their respective
successors and assigns and shall inure to the benefit of the parties hereto and the successors and
assigns of Lenders. No Credit Party’s rights or obligations hereunder nor any interest therein may
be assigned or delegated by any Credit Party without the prior written consent of all Lenders (and
any attempted assignment or transfer by any Credit Party without such consent shall be null and
void). Nothing in this Agreement, expressed or implied, shall be construed to confer upon any
Person (other than the parties hereto, their respective successors and assigns permitted hereby
and, to the extent expressly contemplated hereby, Affiliates of each of the Agents, Borrowing Base
Agent and Lenders) any legal or equitable right, remedy or claim under or by reason of this
Agreement.



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               (b) Registers. The Credit Parties, Administrative Agent, the Borrowing Base Agent and Lenders
shall deem and treat the Persons listed as Lenders in the Registers as the holders and owners of
the corresponding Commitments and Loans listed therein for all purposes hereof, and no assignment
or transfer of any such Commitment or Loan shall be effective, in each case, unless and until an
Assignment Agreement effecting the assignment or transfer thereof shall have been delivered to and
accepted by Administrative Agent or Borrowing Base Agent, as applicable, and recorded in the
applicable Register as provided in Section 10.6(e). Prior to such recordation, all amounts owed
with respect to the applicable Commitment or Loan shall be owed to the Lender listed in the
applicable Register as the owner thereof, and any request, authority or consent of any Person who,
at the time of making such request or giving such authority or consent, is listed in the applicable
Register as a Lender shall be conclusive and binding on any subsequent holder, assignee or
transferee of the corresponding Commitments or Loans. Solely for the purposes of maintaining the
Revolving Loan Register and for tax purposes only Borrowing Base Agent shall be deemed to be acting
on behalf of the Credit Parties, and solely for the purposes of maintaining the Term Register and
for tax purposes only Administrative Agent shall be deemed to be acting on behalf of the Credit
Parties.



               (c) Right to Assign. Each Lender shall have the right at any time to sell, assign or transfer
all or a portion of its rights and obligations under this Agreement on a pro-rata basis only with
respect to all or a portion of its Commitment or Loans owing to it or other Obligations
(provided, however, that each such assignment shall be of a uniform, and not
varying, percentage of all rights and obligations under and in respect of any Loan and any related
Commitments):



                    (i) to any Person meeting the criteria of clause (i)(a) or clause (ii)(a) of the definition of
the term of "Eligible Assignee” upon the giving of notice to Administrative Agent; and



                    (ii) to any Person otherwise constituting an Eligible Assignee with the consent of
Administrative Agent (which consent shall not be unreasonably withheld or delayed);
provided, that each such assignment pursuant to this Section 10.6(c)(ii) shall be in an
aggregate amount of not less than (A) $1,000,000 (or such lesser amount as may be agreed to by the
Applicable Borrower (if no Event of Default has occurred and is continuing) and Administrative
Agent or as shall constitute the aggregate amount of the Revolving Commitments and Revolving Loans
of the assigning Lender) with respect to the assignment of the Revolving Commitments and Revolving
Loans and (B) $1,000,000 (or such lesser amount as may be agreed to by the Applicable Borrower (if
no Event of Default has occurred and is continuing) and Administrative Agent or as shall constitute
the aggregate amount of the Tranche A Term Loans or Tranche A-1 Term Loans of the assigning Lender)
with respect to the assignment of Term Loans.



               (d) Mechanics. The assigning Lender and the assignee thereof shall execute and deliver to
Administrative Agent an Assignment Agreement, together with such forms, certificates or other
evidence, if any, with respect to United States Federal income tax withholding matters as the
assignee under such Assignment Agreement may be required to deliver to Administrative Agent
pursuant to Section 2.19(e). In addition, each assignee of a



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Lender shall execute an acknowledgment to the agreement among lenders entered into between the
Lenders, the Agents and the Borrowing Base Agent on the Closing Date.



               (e) Notice of Assignment. Upon its receipt and acceptance of a duly executed and completed
Assignment Agreement, any forms, certificates or other evidence required by this Agreement in
connection therewith, Administrative Agent shall record the information contained in such
Assignment Agreement in the Register, shall give prompt notice thereof to the Applicable Borrower
and shall maintain a copy of such Assignment Agreement.



               (f) Representations and Warranties of Assignee. Each Lender, upon execution and delivery
hereof or upon executing and delivering an Assignment Agreement, as the case may be, represents and
warrants as of the Closing Date or as of the applicable Effective Date (as defined in the
applicable Assignment Agreement) that (i) it is an Eligible Assignee; (ii) it is sophisticated with
respect to decisions to acquire assets of the type represented by the Assigned Interest (as defined
in the Assignment Agreement) and either it, or the person exercising discretion in making its
decision to acquire the Assigned Interest, is experienced in acquiring assets of such type; and
(iii) it will make or invest in, as the case may be, its Commitments or Loans for its own account
in the ordinary course of its business and without a view to distribution of such Commitments or
Loans within the meaning of the Securities Act or the Exchange Act or other Federal securities laws
(it being understood that, subject to the provisions of this Section 10.6, the disposition of such
Revolving Commitments or Loans or any interests therein shall at all times remain within its
exclusive control).



               (g) Effect of Assignment. Subject to the terms and conditions of this Section 10.6, as of the
"Effective Date” specified in the applicable Assignment Agreement: (i) the assignee thereunder
shall have the rights and obligations of a "Lender” hereunder to the extent such rights and
obligations hereunder have been assigned to it pursuant to such Assignment Agreement and shall
thereafter be a party hereto and a "Lender” for all purposes hereof; (ii) the assigning Lender
thereunder shall, to the extent that rights and obligations hereunder have been assigned thereby
pursuant to such Assignment Agreement, relinquish its rights (other than any rights which survive
the termination hereof under Section 10.9) and be released from its obligations hereunder (and, in
the case of an Assignment Agreement covering all or the remaining portion of an assigning Lender’s
rights and obligations hereunder, such Lender shall cease to be a party hereto; provided,
that anything contained in any of the Credit Documents to the contrary notwithstanding, (y) Issuing
Bank shall continue to have all rights and obligations thereof with respect to such Letters of
Credit until the cancellation or expiration of such Letters of Credit and the reimbursement of any
amounts drawn thereunder, and (z) such assigning Lender shall continue to be entitled to the
benefit of all indemnities hereunder as specified herein with respect to matters arising out of the
prior involvement of such assigning Lender as a Lender hereunder); (iii) the Commitments shall be
modified to reflect the Commitment of such assignee and any Commitment of such assigning Lender, if
any; and (iv) if any such assignment occurs after the issuance of any Note hereunder, the assigning
Lender shall, upon the effectiveness of such assignment or as promptly thereafter as practicable,
surrender its applicable Notes to Administrative Agent for cancellation, and thereupon the
Applicable Borrower shall issue and deliver new Notes, if so requested by the assignee and/or
assigning Lender, to such assignee and/or to such assigning Lender, with appropriate insertions, to
reflect the new Commitments and/or outstanding Loans of the assignee and/or the assigning Lender.



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               (h) Participations. Each Lender shall have the right at any time to sell one or more
participations to any Person (other than Company, any of its Subsidiaries or any of its Affiliates)
in all or any part of its Commitments, Loans or in any other Obligation. The holder of any such
participation (a “Participant"), other than an Affiliate of the Lender granting such participation,
shall not be entitled to require such Lender to take or omit to take any action hereunder except
with respect to any amendment, modification or waiver that would (i) extend the final scheduled
maturity of any Loan, Note or Letter of Credit (unless such Letter of Credit is not extended beyond
the Revolving Commitment Termination Date) in which such Participant is participating, or reduce
the rate or extend the time of payment of interest or fees thereon (except any amendment to the
definition of "Default Rate” or in connection with a waiver of applicability of any post default
increase in interest rates) or reduce the principal amount thereof, or increase the amount of the
Participant’s participation over the amount thereof then in effect (it being understood that a
waiver of any Default or Event of Default or of a mandatory reduction in the Commitment shall not
constitute a change in the terms of such participation, and that an increase in any Commitment or
Loan shall be permitted without the consent of any Participant if the Participant’s participation
is not increased as a result thereof), (ii) consent to the assignment or transfer by any Credit
Party of any of its rights and obligations under this Agreement, or (iii) release all or
substantially all of the Collateral under the Collateral Documents or all or substantially all of
the Guarantors from the Guaranty (in each case, except as expressly provided in the Credit
Documents) supporting the Loans hereunder in which such Participant is participating. Each Credit
Party agrees that each Participant shall be entitled, through the participating Lender, to the
benefits of Sections 2.17(c), 2.18 and 2.19 to the same extent as if it were a Lender and had
acquired its interest by assignment pursuant to clause (c) of this Section; provided, that
(i) a Participant shall not be entitled to receive any greater payment under Section 2.18 or 2.19
than the applicable Lender would have been entitled to receive with respect to the participation
sold to such Participant, unless the sale of the participation to such Participant is made with the
Applicable Borrower’s prior written consent, and (ii) a Participant that would be a Non-U.S. Lender
if it were a Lender shall not be entitled to the benefits of Section 2.19 unless the Applicable
Borrower is notified of the participation sold to such Participant and such Participant agrees, for
the benefit of the Credit Parties, to comply with Section 2.19 as though it were a Lender. To the
extent permitted by law, each Participant also shall be entitled to the benefits of Section 10.4 as
though it were a Lender, provided such Participant agrees to be subject to Section 2.16 as though
it were a Lender.



               (i) Certain Other Assignments. In addition to any other assignment permitted pursuant to this
Section 10.6, any Lender may assign, pledge and/or grant a security interest in, all or any portion
of its Loans, the other Obligations owed by or to such Lender, and its Notes, if any, to secure
obligations of such Lender including to any Federal Reserve Bank as collateral security pursuant to
Regulation A of the Board of Governors of the Federal Reserve System and any operating circular
issued by such Federal Reserve Bank; provided, that no Lender, as between the Credit
Parties and such Lender, shall be relieved of any of its obligations hereunder as a result of any
such assignment and pledge, and provided further, that in no event shall the
applicable Federal Reserve Bank, pledgee or trustee be considered to be a "Lender” or be entitled
to require the assigning Lender to take or omit to take any action hereunder.



          10.7 Special Purpose Funding Vehicles. Notwithstanding anything to the contrary contained herein, any
Lender (“Granting Lender”) may grant to a special purpose funding



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vehicle (a “SPC”), identified as such in writing from time to time by the Granting Lender to
Administrative Agent and the Applicable Borrower, the option to provide to the Applicable Borrower
all or any part of any Loan that such Granting Lender would otherwise be obligated to make to the
Applicable Borrower pursuant to this Agreement; provided that (x) nothing herein shall constitute a
commitment by any SPC to make any Loans and (y) if an SPC elects not to exercise such option or
otherwise fails to provide all or any part of such Loan, the Granting Lender shall be obligated to
make such Loan pursuant to the terms hereof. The making of a Loan by an SPC hereunder shall
utilize the Commitment of the Granting Lender to the same extent, and as if, such Loan were made by
such Granting Lender. Each party hereto hereby agrees that no SPC shall be liable for any
indemnity or similar payment obligation under this Agreement (all liability for which shall remain
with the Granting Lender). In furtherance of the foregoing, each party hereto hereby agrees (which
agreement shall survive the termination of this Agreement) that, prior to the date that is one year
and one day after the payment in full of all outstanding commercial paper or other senior
indebtedness of any SPC, it will not institute against, or join any other person in instituting
against, such SPC any bankruptcy, reorganization, arrangement, insolvency or liquidation
proceedings under the laws of the United States or any State thereof. In addition, notwithstanding
anything to the contrary contained in this clause, any SPC may (i) with notice to, but without the
prior written consent of, the Applicable Borrower or Administrative Agent and without paying any
processing fee therefor, assign all or a portion of its interests in any Loans to the Granting
Lender or to any financial institutions (consented to by the Applicable Borrower and Administrative
Agent) providing liquidity and/or credit support to or for the account of such SPC to support the
funding or maintenance of Loans and (ii) disclose on a confidential basis any non-public
information relating to its Loans to any rating agency, commercial paper dealer or provider of any
surety, guarantee or credit or liquidity enhancement to such SPC. This Section may not be amended
without the written consent of the SPC. Each Borrower acknowledges and agrees, subject to the next
sentence, that, to the fullest extent permitted under applicable law, each SPC, for purposes of
Sections 2.16, 2.17, 2.18, 2.19, 10.2, 10.3 and 10.4, shall be considered a Lender. No Borrower
shall not be required to pay any amount under Sections 2.16, 2.17, 2.18, 2.19, 10.2, 10.3 and 10.4
that is greater than the amount which it would have been required to pay had no grant been made by
a Granting Lender to a SPC.




          10.8 Independence of Covenants. All covenants hereunder shall be given independent effect so that if a
particular action or condition is not permitted by any of such covenants, the fact that it would be
permitted by an exception to, or would otherwise be within the limitations of, another covenant
shall not avoid the occurrence of a Default or an Event of Default if such action is taken or
condition exists.




          10.9 Survival of Representations, Warranties and Agreements. All representations, warranties and
agreements made herein shall survive the execution and delivery hereof and the making of any Credit
Extension. Notwithstanding anything herein or implied by law to the contrary, the agreements of
each Credit Party set forth in Sections 2.17(c), 2.18, 2.19, 10.2, 10.3 and 10.4 and the agreements
of Lenders set forth in Sections 2.16, 9.3(b) and 9.6 shall survive the payment of the Loans, the
cancellation or expiration of the Letters of Credit and the reimbursement of any amounts drawn
thereunder, and the termination hereof.




          10.10 No Waiver; Remedies Cumulative. No failure or delay on the part of any Agent, Borrowing Base Agent
or any Lender in the exercise of any power, right or privilege



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hereunder or under any other Credit Document shall impair such power, right or privilege or be
construed to be a waiver of any default or acquiescence therein, nor shall any single or partial
exercise of any such power, right or privilege preclude other or further exercise thereof or of any
other power, right or privilege. The rights, powers and remedies given to each Agent, Borrowing
Base Agent and each Lender hereby are cumulative and shall be in addition to and independent of all
rights, powers and remedies existing by virtue of any statute or rule of law or in any of the other
Credit Documents. Any forbearance or failure to exercise, and any delay in exercising, any right,
power or remedy hereunder shall not impair any such right, power or remedy or be construed to be a
waiver thereof, nor shall it preclude the further exercise of any such right, power or remedy.




          10.11 Marshalling; Payments Set Aside. Neither any Agent, Borrowing Base Agent nor any Lender shall be
under any obligation to marshal any assets in favor of any Credit Party or any other Person or
against or in payment of any or all of the Obligations. To the extent that any Credit Party makes
a payment or payments to Administrative Agent, Issuing Bank, or Lenders (or to Administrative
Agent, on behalf of Lenders Issuing Bank,), or Administrative Agent, Collateral Agent, Issuing
Bank, or Lenders enforce any security interests or exercise their rights of setoff, and such
payment or payments or the proceeds of such enforcement or setoff or any part thereof are
subsequently invalidated, declared to be fraudulent or preferential, set aside and/or required to
be repaid to a trustee, receiver or any other party under any bankruptcy law, any other state or
Federal law, common law or any equitable cause, then, to the extent of such recovery, the
obligation or part thereof originally intended to be satisfied, and all Liens, rights and remedies
therefor or related thereto, shall be revived and continued in full force and effect as if such
payment or payments had not been made or such enforcement or setoff had not occurred.




          10.12 Severability. In case any provision in or obligation hereunder or any Note or other Credit
Document shall be invalid, illegal or unenforceable in any jurisdiction, the validity, legality and
enforceability of the remaining provisions or obligations, or of such provision or obligation in
any other jurisdiction, shall not in any way be affected or impaired thereby.




          10.13 Obligations Several; Independent Nature of Lenders’ Rights. The obligations of Lenders hereunder
are several and no Lender shall be responsible for the obligations or Commitment of any other
Lender hereunder. Nothing contained herein or in any other Credit Document, and no action taken by
Lenders pursuant hereto or thereto, shall be deemed to constitute Lenders as a partnership, an
association, a joint venture or any other kind of entity. The amounts payable at any time
hereunder to each Lender shall be a separate and independent debt, and each Lender shall be
entitled to protect and enforce its rights arising out hereof and it shall not be necessary for any
other Lender to be joined as an additional party in any proceeding for such purpose.




          10.14 Headings. Section headings herein are included herein for convenience of reference only and shall
not constitute a part hereof for any other purpose or be given any substantive effect.




          10.15 APPLICABLE LAW. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE
GOVERNED BY,




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AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.




          10.16 CONSENT TO JURISDICTION.




               (a) ALL JUDICIAL PROCEEDINGS BROUGHT AGAINST ANY CREDIT PARTY ARISING OUT OF OR RELATING
HERETO OR ANY OTHER CREDIT DOCUMENT, OR ANY OF THE OBLIGATIONS, MAY BE BROUGHT IN ANY STATE OR
FEDERAL COURT OF COMPETENT JURISDICTION IN THE STATE, COUNTY AND CITY OF NEW YORK. BY EXECUTING
AND DELIVERING THIS AGREEMENT, EACH CREDIT PARTY, FOR ITSELF AND IN CONNECTION WITH ITS PROPERTIES,
IRREVOCABLY (i) ACCEPTS GENERALLY AND UNCONDITIONALLY THE NONEXCLUSIVE JURISDICTION AND VENUE OF
SUCH COURTS; (ii) WAIVES ANY DEFENSE OF FORUM NON CONVENIENS; (iii) AGREES THAT SERVICE OF ALL
PROCESS IN ANY SUCH PROCEEDING IN ANY SUCH COURT MAY BE MADE BY REGISTERED OR CERTIFIED MAIL,
RETURN RECEIPT REQUESTED, TO THE APPLICABLE CREDIT PARTY AT ITS ADDRESS PROVIDED IN ACCORDANCE WITH
SECTION 10.1 AND TO ANY PROCESS AGENT SELECTED IN ACCORDANCE WITH SECTION 3.1(t) ABOVE IS
SUFFICIENT TO CONFER PERSONAL JURISDICTION OVER THE APPLICABLE CREDIT PARTY IN ANY SUCH PROCEEDING
IN ANY SUCH COURT, AND OTHERWISE CONSTITUTES EFFECTIVE AND BINDING SERVICE IN EVERY RESPECT; AND
(iv) AGREES THAT AGENTS, BORROWING BASE AGENT AND LENDERS RETAIN THE RIGHT TO SERVE PROCESS IN ANY
OTHER MANNER PERMITTED BY LAW OR TO BRING PROCEEDINGS AGAINST ANY CREDIT PARTY IN THE COURTS OF ANY
OTHER JURISDICTION.



               (b) EACH CREDIT PARTY HEREBY AGREES THAT PROCESS MAY BE SERVED ON IT BY CERTIFIED MAIL, RETURN
RECEIPT REQUESTED, TO THE ADDRESSES PERTAINING TO IT AS SPECIFIED IN SECTION 10.1. ANY AND ALL
SERVICE OF PROCESS AND ANY OTHER NOTICE IN ANY SUCH ACTION, SUIT OR PROCEEDING SHALL BE EFFECTIVE
AGAINST ANY CREDIT PARTY IF GIVEN BY REGISTERED OR CERTIFIED MAIL, RETURN RECEIPT REQUESTED, OR BY
ANY OTHER MEANS OR MAIL WHICH REQUIRES A SIGNED RECEIPT, POSTAGE PREPAID, MAILED AS PROVIDED ABOVE.



          10.17 WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO HEREBY AGREES TO WAIVE ITS RESPECTIVE RIGHTS TO A
JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING HEREUNDER OR UNDER ANY OF THE
OTHER CREDIT DOCUMENTS OR ANY DEALINGS BETWEEN THEM RELATING TO THE SUBJECT MATTER OF THIS LOAN
TRANSACTION OR THE LENDER/BORROWER RELATIONSHIP THAT IS BEING ESTABLISHED. THE SCOPE OF THIS
WAIVER IS INTENDED TO BE ALL ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE FILED IN ANY COURT
AND THAT RELATE TO THE SUBJECT MATTER OF THIS TRANSACTION, INCLUDING CONTRACT CLAIMS, TORT CLAIMS,
BREACH OF DUTY CLAIMS AND ALL OTHER COMMON LAW AND STATUTORY CLAIMS. EACH PARTY



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HERETO ACKNOWLEDGES THAT THIS WAIVER IS A MATERIAL INDUCEMENT TO ENTER INTO A BUSINESS
RELATIONSHIP, THAT EACH HAS ALREADY RELIED ON THIS WAIVER IN ENTERING INTO THIS AGREEMENT, AND THAT
EACH WILL CONTINUE TO RELY ON THIS WAIVER IN ITS RELATED FUTURE DEALINGS. EACH PARTY HERETO
FURTHER WARRANTS AND REPRESENTS THAT IT HAS REVIEWED THIS WAIVER WITH ITS LEGAL COUNSEL AND THAT IT
KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL.
THIS WAIVER IS IRREVOCABLE, MEANING THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING (OTHER
THAN BY A MUTUAL WRITTEN WAIVER SPECIFICALLY REFERRING TO THIS SECTION 10.16 AND EXECUTED BY EACH
OF THE PARTIES HERETO), AND THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS,
SUPPLEMENTS OR MODIFICATIONS HERETO OR ANY OF THE OTHER CREDIT DOCUMENTS OR TO ANY OTHER DOCUMENTS
OR AGREEMENTS RELATING TO THE LOANS MADE HEREUNDER. IN THE EVENT OF LITIGATION, THIS AGREEMENT MAY
BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT.




          10.18 Confidentiality. Each Lender shall hold all non-public information regarding Company and its
Subsidiaries and their businesses clearly identified as such by Company and obtained by such Lender
pursuant to the requirements hereof in accordance with such Lender’s customary procedures for
handling confidential information of such nature, it being understood and agreed by each Credit
Party that, in any event, a Lender may make (i) disclosures of such information to Affiliates of
such Lender and to their directors, officers, employees, agents and advisors (and to other persons
authorized by a Lender or Agent or Borrowing Base Agent to organize, present or disseminate such
information in connection with disclosures otherwise made in accordance with this Section 10.18),
(ii) disclosures of such information reasonably required by any bona fide or potential assignee,
transferee or participant in connection with the contemplated assignment, transfer or participation
by such Lender of any Loans or any participations therein or by any direct or indirect contractual
counterparties (or the professional advisors thereto) in Interest Rate Agreements
(provided, such counterparties and advisors are advised of and agree to be bound by the
provisions of this Section 10.18), (iii) disclosure to any rating agency when required by it,
provided that, prior to any disclosure, such rating agency shall undertake in writing to
preserve the confidentiality of any confidential information relating to the Credit Parties
received by it from any of the Agents, Borrowing Base Agent or any Lender, (iv) disclosures to any
Lender’s financing sources, provided that prior to any disclosure, such financing source is
informed of the confidential nature of the information, (v) disclosure of information which (A)
becomes publicly available other than as a result of a breach of this Section 10.18 or (B) becomes
available to Administrative Agent or any Lender on a non-confidential basis from a source other
than a Credit Party, and (vi) disclosures required or requested by any governmental agency or
examiner representative thereof or by the NAIC or pursuant to legal or judicial process;
provided, that unless specifically prohibited by applicable law or court order, each Lender
shall make reasonable efforts to notify Company of any request by any governmental agency or
representative thereof (other than any such request in connection with any examination of the
financial condition or other routine examination of such Lender by such governmental agency) for
disclosure of any such non-public information prior to disclosure of such information.
Notwithstanding the foregoing, on or after the Closing Date,



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Administrative Agent may, at its own expense, issue news releases and publish "tombstone”
advertisements and other announcements relating to this transaction in newspapers, trade journals
and other appropriate media.




          10.19 Usury Savings Clause. Notwithstanding any other provision herein, the aggregate interest rate
charged or agreed to be paid with respect to any of the Obligations, including all charges or fees
in connection therewith deemed in the nature of interest under applicable law shall not exceed the
Highest Lawful Rate. If the rate of interest (determined without regard to the preceding sentence)
under this Agreement at any time exceeds the Highest Lawful Rate, the outstanding amount of the
Loans made hereunder shall bear interest at the Highest Lawful Rate until the total amount of
interest due hereunder equals the amount of interest which would have been due hereunder if the
stated rates of interest set forth in this Agreement had at all times been in effect. In addition,
if when the Loans made hereunder are repaid in full the total interest due hereunder (taking into
account the increase provided for above) is less than the total amount of interest which would have
been due hereunder if the stated rates of interest set forth in this Agreement had at all times
been in effect, then to the extent permitted by law, the Applicable Borrower shall pay to
Administrative Agent an amount equal to the difference between the amount of interest paid and the
amount of interest which would have been paid if the Highest Lawful Rate had at all times been in
effect. Notwithstanding the foregoing, it is the intention of Lenders and each Borrower to conform
strictly to any applicable usury laws. Accordingly, if any Lender contracts for, charges, or
receives any consideration which constitutes interest in excess of the Highest Lawful Rate, then
any such excess shall be cancelled automatically and, if previously paid, shall at such Lender’s
option be applied to the outstanding amount of the Loans made hereunder or be refunded to the
Applicable Borrower. In determining whether the interest contracted for, charged, or received by
Administrative Agent or a Lender exceeds the Highest Lawful Rate, such Person may, to the extent
permitted by applicable law, (a) characterize any payment that is not principal as an expense, fee,
or premium rather than interest, (b) exclude voluntary prepayments and the effects thereof, and (c)
amortize, prorate, allocate, and spread in equal or unequal parts the total amount of interest,
throughout the contemplated term of the Obligations hereunder.




          10.20 Counterparts. This Agreement may be executed in any number of counterparts, each of which when so
executed and delivered shall be deemed an original, but all such counterparts together shall
constitute but one and the same instrument.




          10.21 Effectiveness. This Agreement shall become effective upon the execution of a counterpart hereof by
each of the parties hereto and receipt by Company and Administrative Agent of written or telephonic
notification of such execution and authorization of delivery thereof.




          10.22 Patriot Act. Each Lender and Administrative Agent (for itself and not on behalf of any Lender)
hereby notifies each Credit Party that pursuant to the requirements of the Patriot Act, it is
required to obtain, verify and record information that identifies such Credit Party, which
information includes the name and address of such Credit Party and other information that will
allow such Lender or Administrative Agent, as applicable, to identify such Credit Party in
accordance with the Patriot Act.





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          10.23 Disclosure. Each Credit Party and each Lender hereby acknowledges and agrees that Administrative
Agent and/or its Affiliates from time to time may hold investments in, and make other loans to, or
have other relationships with any of the Credit Parties and their respective Affiliates. In
addition, each Credit Party and each Lender hereby acknowledges that Administrative Agent has also
received a warrant from Company.




          10.24 Appointment for Perfection. Each Lender hereby appoints each other Lender as its agent for the
purpose of perfecting Liens, for the benefit of Administrative Agent and the Lenders, in assets
which, in accordance with Article 9 of the UCC or any other applicable law can be perfected only by
possession or control. Should any Lender (other than Administrative Agent) obtain possession of
any such Collateral, such Lender shall notify Administrative Agent thereof, and, promptly upon
Administrative Agent’s request therefor shall deliver such Collateral to Administrative Agent or
otherwise deal with such Collateral in accordance with Administrative Agent’s instructions.




          10.25 Advertising and Publicity. No Credit Party shall issue or disseminate to the public (by
advertisement, including without limitation any “tombstone” advertisement, press release or
otherwise), submit for publication or otherwise cause or seek to publish any information describing
the credit or other financial accommodations made available by Lenders pursuant to this Agreement
and the other Credit Documents without the prior written consent of Administrative Agent. Nothing
in the foregoing shall be construed to prohibit any Credit Party from making any submission or
filing which it is required to make by applicable law or pursuant to judicial process;
provided, that, (i) such filing or submission shall contain only such information as is
necessary to comply with applicable law or judicial process and (ii) unless specifically prohibited
by applicable law or court order, such Credit Party shall promptly notify Administrative Agent of
the requirement to make such submission or filing and provide Administrative Agent with a copy
thereof.



          10.26 Foreign Currency.



               (a) Each Credit Party’s obligation hereunder and under the other Credit Documents to make
payments in U.S. Dollars (the “Obligation Currency”) shall not be discharged or satisfied by any
tender or recovery pursuant to any judgment expressed in or converted into any currency other than
the Obligation Currency, except to the extent that such tender or recovery results in the effective
receipt by the Administrative Agent, the Collateral Agent or the respective Lender of the full
amount of the Obligation Currency expressed to be payable to the Administrative Agent, the
Collateral Agent or such Lender under this Agreement or the other Credit Documents. If, for the
purpose of obtaining or enforcing judgment against any Credit Party in any court or in any
jurisdiction, it becomes necessary to convert into or from any currency other than the Obligation
Currency (such other currency being hereinafter referred to as the “Foreign Currency”) an amount
due in the Obligation Currency, the conversion shall be made, at the rate of exchange quoted by the
Reference Bank, determined, in each case, as of the date immediately preceding the day on which the
judgment is given (such Business Day being hereinafter referred to as the “Foreign Currency
Conversion Date”).



               (b) If there is a change in the rate of exchange prevailing between the Foreign Currency
Conversion Date and the date of actual payment of the amount due, the Applicable



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Borrower covenants and agrees to pay, or cause to be paid, such additional amounts, if any
(but in any event not a lesser amount), as may be necessary to ensure that the amount paid in the
Foreign Currency, when converted at the rate of exchange prevailing on the date of payment, will
produce the amount of the Obligation Currency that could have been purchased with the amount of
Foreign Currency stipulated in the judgment or judicial award at the rate of exchange prevailing on
the Foreign Currency Conversion Date.




               (c) For purposes of determining any rate of exchange for this Section, such amounts shall
include any premium and costs payable in connection with the purchase of the Obligation Currency.



          10.27 Immunity. To the extent that any Credit Party has or hereafter may acquire any immunity from
jurisdiction of any court or from any legal process (whether through service or notice, attachment
prior to judgment, attachment in aid of execution, or otherwise) with respect to itself or its
property, each Credit Party hereby irrevocably waives such immunity in respect of its obligations
hereunder and under the other Credit Documents to which it is a party to the extent permitted by
applicable law and, without limiting the generality of the foregoing, agrees that the waivers set
forth in this Section 10.28 shall be to the fullest extent permitted under the Foreign Sovereign
Immunities Act of 1976 of the United States and are intended to be irrevocable for purposes of such
Act.



[Remainder of page intentionally left blank]




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         IN WITNESS WHEREOF, the parties hereto
have caused this Agreement to be duly executed and
delivered by their respective officers thereunto duly authorized as of the date first written
above.




	 	 	 	 	 
	 	SYNTAX-BRILLIAN CORPORATION

 	 
	 	By:  	/s/ John S. Hodgson 	 
	 	 	Name:  	John S. Hodgson 	 
	 	 	Title:  	Executive Vice President, Chief Financial Officer and Treasurer 	 
	 




	 	 	 	 	 
	 	SYNTAX-BRILLIAN SPE, INC.

 	 
	 	By:  	/s/ John S. Hodgson 	 
	 	 	Name:  	John S. Hodgson 	 
	 	 	Title:  	Chief Financial Officer 	 
	 



	 	 	 	 	 
	 	SYNTAX GROUPS CORPORATION

 	 
	 	By:  	/s/ John S. Hodgson 	 
	 	 	Name:  	John S. Hodgson 	 
	 	 	Title:  	Chief Financial Officer 	 
	 



	 	 	 	 	 
	 	SYNTAX CORPORATION

 	 
	 	By:  	/s/ John S. Hodgson 	 
	 	 	Name:  	John S. Hodgson 	 
	 	 	Title:  	Chief Financial Officer 	 
	 



	 	 	 	 	 
	 	VIVITAR CORPORATION

 	 
	 	By:  	/s/ John S. Hodgson 	 
	 	 	Name:  	John S. Hodgson 	 
	 	 	Title:  	Chief Financial Officer 	 





 









 






	 	 	 	 	 



	 	 	 	 	 
	 	SILVER POINT FINANCE, LLC,

as Administrative Agent, Lead Arranger and

Collateral Agent and a Lender

 	 
	 	By:  	/s/ Frederick H. Fogel 	 
	 	 	Name:  	Frederick H. Fogel 	 
	 	 	Title:  	Authorized Signatory 	 



 









 






	 	 	 	 	 



	 	 	 	 	 
	 	SP SYNTAX LLC,

as a Lender

 	 
	 	By:  	/s/
Frederick H. Fogel 	 
	 	 	Name:  	Frederick H. Fogel 	 
	 	 	Title:  	Authorized Signatory 	 
	 



	 	 	 	 	 
	 	SP3 SYNTAX LLC,

as a Lender

 	 
	 	By:  	/s/
Frederick H. Fogel 	 
	 	 	Name:  	Frederick H. Fogel 	 
	 	 	Title:  	Authorized Signatory 	 



 









 






	 	 	 	 	 



	 	 	 	 	 
	 	CITICORP USA, INC.,

as a Lender

 	 
	 	By:  	/s/
James R. Williams 	 
	 	 	Name:  	James R. Williams 	 
	 	 	Title:  	Director and Vice President 	 



 









 






	 	 	 	 	 



	 	 	 	 	 
	 	WELLS FARGO FOOTHILL, LLC,

as a Lender

 	 
	 	By:  	/s/
Todd R. Nakamoto 	 
	 	 	Name:  	Todd R. Nakamoto 	 
	 	 	Title:  	Vice President 	 



 









 






	 	 	 	 	 



	 	 	 	 	 
	 	THE CIT GROUP/COMMERCIAL SERVICES, INC.,

as a Lender

 	 
	 	By:  	/s/
Nathan L. Hugg	 
	 	 	Name:  	Nathan L. Hugg	 
	 	 	Title:  	Senior Vice President	 



 









 






	 	 	 	 	 



	 	 	 	 	 
	 	WACHOVIA CAPITAL FINANCE
CORPORATION (NEW ENGLAND)

as a Lender

 	 
	 	By:  	/s/
Robert A. Kinne	 
	 	 	Name:  	Robert A. Kinne	 
	 	 	Title:  	Director	 



 









 






	 	 	 	 	 



APPENDIX A-1




TO CREDIT AND GUARANTY AGREEMENT




Tranche A Term Loan Commitments




	 	 	 	 	 	 	 	 	 
	 	 	Tranche A	 	 	Pro	 
	Lender	 	Term Loan Commitment	 	 	Rata Share	 
	SP Syntax LLC
	 	$	85,066,666.66	 	 	 	77.333333	%
	SP3 Syntax LLC
	 	$	10,266,666.67	 	 	 	9.333333	%
	Citicorp USA, Inc.
	 	$	14,666,666.67	 	 	 	13.333333	%
	 
	 	 	 	 	 	 
	Total
	 	$	110,000,000.00	 	 	 	100	%
	 
	 	 	 	 	 	 






Appendix A-1




 









 








APPENDIX A-2




TO CREDIT AND GUARANTY AGREEMENT




Tranche A-1 Term Loan Commitments




	 	 	 	 	 	 	 	 	 
	 	 	Tranche A-1	 	 	Pro	 
	Lender	 	Term Loan Commitment	 	 	Rata Share	 
	SP Syntax LLC
	 	$	30,933,333.34	 	 	 	77.333333	%
	SP3 Syntax LLC
	 	$	3,733,333.33	 	 	 	9.333333	%
	Citicorp USA, Inc.
	 	$	5,333,333.33	 	 	 	13.333333	%
	 
	 	 	 	 	 	 
	Total
	 	$	40,000,000.00	 	 	 	100	%
	 
	 	 	 	 	 	 






Appendix A-2




 









 








APPENDIX A-3




TO CREDIT AND GUARANTY AGREEMENT




Revolving Commitments




	 	 	 	 	 	 	 	 	 
	Lender	 	Revolving Commitment	 	 	Pro Rata Share	 
	Wells Fargo Foothill, LLC
	 	$	33,333,333.34	 	 	 	33.33	%
	The CIT Group/Commercial
Services, Inc.
	 	$	33,333,333.33	 	 	 	33.33	%
	Wachovia Capital Finance
Corporation (New England)
	 	$	33,333,333.33	 	 	 	33.33	%
	 
	 	 	 	 	 	 
	Total
	 	$	100,000,000.00	 	 	 	33.33	%
	 
	 	 	 	 	 	 






Appendix A-3




 









 








APPENDIX B




TO CREDIT AND GUARANTY AGREEMENT




Notice Addresses




SYNTAX-BRILLIAN CORPORATION and each other Credit Party



1600 N. Desert Drive

Tempe, Arizona 85281

Attention: General Counsel, Chief Financial Officer and Treasurer

Telecopier: 602-389-8869




with a copy to:



Greenburg Traurig, LLP

2375 E. Camelback Road, Suite 700

Phoenix, AZ 85016

Attention: Robert S. Kant, Esq.

Telecopier: 602-445-8100




Annex A-1




 









 








SILVER POINT FINANCE, LLC




as Administrative Agent and Collateral Agent,



Silver Point Finance, LLC

Two Greenwich Plaza

Greenwich, Connecticut 06830

Telecopier: (203) 542-4550

Attention: Tim Skoufis, Account Manager




Annex A-2