exv10w47



 





EXHIBIT
10.47




AMENDED AND RESTATED

PROMISSORY NOTE VARIABLE RATE




			
	$4,000,000.00
	 	July 26, 2007
	 	 	 




FOR VALUE RECEIVED, SYNTAX GROUPS CORPORATION, a California corporation, SYNTAX CORPORATION, a
Nevada corporation, and SYNTAX BRILLIAN CORPORATION (individually and collectively, “Borrower”),
jointly and severally promise to pay to PREFERRED BANK, a California banking corporation
(“Lender”), or its order, at its office located at 601 South Figueroa Street, 20th Floor, Los
Angeles, California 90017, or at such other place as the holder hereof may designate, in lawful
money of the United States of America, the principal sum of Four Million and 00/100 Dollars
($4,000,000.00), or so much thereof as shall have been advanced and is outstanding, together with
interest on the outstanding principal balance, until paid in full in accordance with the terms,
conditions and provisions as hereinafter set forth in this Amended and Restated Promissory Note
Variable Rate (this “Note”). This Note supersedes and fully amends and restates the Promissory Note
Variable Rate, dated December 1, 2006, in the principal amount of $2,000,000.00.



INTEREST RATE. Interest on the outstanding principal balance of this Note shall be
computed and calculated based upon a three hundred sixty (360)-day year and actual days elapsed and
shall accrue at the per annum rate (the “Note Rate”) of one-half of one percent (0.5%) over the
Prime Rate, as the rate may change from time to time. “Prime Rate” shall mean the variable rate of
interest per annum announced, declared and/or published from time to time by Lender as its “Prime
Rate” with the understanding that Lender’s “Prime Rate” is one of its base rates and serves as a
basis upon which effective rates of interest are calculated for loans making reference thereto and
may not be the lowest of Lender’s base rates. If the Prime Rate becomes unavailable during the term
of this Note, Lender may designate a comparable substitute index after notice to Borrower.



PAYMENTS. Interest shall be due and payable monthly, in arrears, based upon the actual
number of days elapsed for that monthly period, commencing on August 5, 2007, and shall continue to
be due and payable, in arrears, on the same day of each calendar month thereafter until the
Maturity Date (as hereinafter defined).



Upon the Maturity Date, the entire unpaid obligation outstanding under this Note shall become due
and payable in full.



All payments due hereunder, including payments of principal and interest, shall be made to Lender
in United States Dollars and shall be in the form of immediately available funds acceptable to the
holder of this Note.



APPLICATION OF PAYMENTS. All payments received by Lender from, or for the account of,
Borrower due hereunder shall be applied by Lender, in its sole and absolute discretion, in the
following manner, or in any other order or manner as Lender chooses:




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	 	a.	 	First. To pay any and all interest due, owing and accrued;
	 
	 	b.	 	Second. To pay any and all costs, advances, expenses or fees
due, owing and payable to Lender, or paid or incurred by Lender, arising from
or out of this; and
	 
	 	c.	 	Third. To pay the outstanding principal balance on this Note.




All records of payments received by Lender shall be maintained at Lender’s office, and the records
of Lender shall, absent manifest error, be binding and conclusive upon Borrower. The failure of
Lender to record any payment or expense shall not limit or otherwise affect the obligations of
Borrower under this Note.



MATURITY DATE. On December 5, 2008 (“Maturity Date”), the entire unpaid principal balance,
and all unpaid accrued interest thereon, shall be due and payable without demand or notice. In the
event that Borrower does not pay this Note in full on the Maturity Date then, as of the Maturity
Date and thereafter until paid in full, the interest accruing on the outstanding principal balance
hereunder shall be computed, calculated and accrued on a daily basis at the Default Rate (as
hereinafter defined).



UNPAID EXPENSES. Expenses that are not received by Lender within ten (10) calendar days
from the date such expenses become due, shall, at the sole discretion of Lender, be added to the
principal balance and shall from the date due bear interest at the Default Rate.



HOLIDAY. Whenever any payment to be made under this Note shall be due on a day other than
a business day, including Saturdays, Sundays and legal holidays generally recognized by banks doing
business in California, then the due date for such payment shall be automatically extended to the
next succeeding business day, and such extension of time shall in such cases be included in the
computation of the interest portion of any payment due hereunder.



NO OFFSETS OR DEDUCTIONS. All payments under this Note shall be made by Borrower without
any offset, decrease, reduction or deduction of any kind or nature whatsoever, including, but not
limited to, any decrease, reduction or deduction for, or on account of, any offset, present or
future taxes, present or future reserves, imposts or duties of any kind or nature, that are imposed
or levied by or on behalf of any government or taxing agency, body or authority by or for any
municipality, state or country. If at any time, present or future, Lender shall be compelled, by
any Law, rule, regulation or any other such requirement which on its face or by its application
requires or establishes reserves, or payment, deduction or withholding of taxes, imposts or duties,
to act such that it causes or results in a decrease, reduction or deduction (as described above) in
payment received by Lender, then Borrower shall pay to Lender such additional amounts, as Lender
shall deem necessary and appropriate, such that every payment received under this Note, after such
decrease, reserve, reduction, deduction, payment or required withholding, shall not be reduced in
any manner whatsoever.




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DEFAULT. Any one or more of the following events or occurrences shall constitute a default
under this Note (hereinafter “Default”):





	 	(i)	 	Lender does not receive a payment hereunder when due; or
	 
	 	(ii)	 	There shall be an Event of Default under that certain Amended
and Restated Business Loan and Security Agreement dated as of December 13,
2006, as amended, by and between Borrower and Lender (the “Loan Agreement”).





          Upon the occurrence of a Default hereunder, Lender may, in its sole and absolute discretion,
declare the entire unpaid principal balance, together with all accrued and unpaid interest thereon,
and all other amounts and payments due hereunder, immediately due and payable, without notice or
demand.



DEFAULT RATE. From and after the occurrence of any Default in this Note whether by
non-payment, maturity, acceleration, non-performance or otherwise, and until such Default has been
cured, all outstanding amounts under this Note shall bear interest at a per annum rate (“Default
Rate”) equal to five percent (5%) over the Note Rate.



PREPAYMENT. The principal amount of this Note may be prepaid in whole or in part;
provided, however, that written notice of prepayment is received by Lender
concurrently therewith. Any such prepayment shall not result in a reamortization, deferral,
postponement, suspension, or waiver of any and all principal or other payments due under this Note.



LATE CHARGES. Time is of the essence for all payments and other obligations due under this
Note. Borrower acknowledges that if any payment required under this Note is not received by Lender
within ten (10) days after the same becomes due and payable, Lender will incur extra
administrative expenses (i.e., in addition to expenses incident to receipt of timely payment) and
the loss of the use of funds in connection with the delinquency in payment. Because, from the
nature of the case, the actual damages suffered by Lender by reason of such administrative expenses
and loss of the use of funds would be impracticable or extremely difficult to ascertain, Borrower
agrees that five percent (5%) of the amount of the delinquent payment, together with interest
accruing on the entire principal balance of this Note at the Default Rate, as provided above, shall
be the amount of damages which Lender is entitled to receive upon such breach, in compensation
therefor. Therefore, Borrower shall, in such event, without further demand or notice, pay to
Lender, as Lender’s monetary recovery for such extra administrative expenses and loss of use of
funds, liquidated damages in the amount of five percent (5%) of the amount of the delinquent
payment (in addition to interest at the Default Rate). The provisions of this paragraph are
intended to govern only the determination of damages in the event of a breach in the performance of
Borrower to make timely payments hereunder. Nothing in this Note shall be construed as in any way
giving Borrower the right, express or implied, to fail to make timely payments hereunder, whether
upon payment of such damages or otherwise. The right of Lender to receive payment of such
liquidated and actual damages, and receipt thereof, are without prejudice to the right of Lender to
collect such delinquent payments and any other amounts provided to be paid hereunder or to declare
a default hereunder.




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COSTS AND EXPENSES. Borrower hereby agrees to pay any and all costs or expenses paid or
incurred by Lender by reason of, as a result of, or in connection with the enforcement of this Note
including, but not limited to, any and all reasonable attorney’s fees and related costs when such
costs or expenses are paid or incurred in connection with the enforcement of this Note, the
protection or preservation of the collateral or security for this Note, if any, or any other
rights, remedies or interests of Lender, whether or not suit is filed. Borrower’s agreement to pay
any and all such costs and expenses includes, but is not limited to, costs and expenses incurred in
or in connection with any bankruptcy proceeding, in enforcing any judgment obtained by Lender and
in connection with any and all appeals therefrom, and in connection with the monitoring of any
bankruptcy proceeding and its effect on Lender’s rights and claims for recovery of the amounts due
hereunder, any proceeding concerning relief from the automatic stay, use of cash collateral, proofs
of claim, approval of a disclosure statement or confirmation of, or objections to confirmation of,
any plan of reorganization. All such costs and expenses are due and payable to Lender by Borrower
within ten (10) days following demand.



WAIVERS. Borrower hereby waives grace, diligence, presentment, demand, notice of demand,
dishonor, notice of dishonor, protest, notice of protest, any and all exemption rights against the
indebtedness evidenced by this Note and the right to plead any statute of limitations as a defense
to the repayment of all or any portion of this Note, and interest thereon, to the fullest extent
allowed by law, and all compensation of cross-demands pursuant to California Code of Civil
Procedure Section 431.70. No delay, omission or failure on the part of Lender in exercising any
right or remedy hereunder shall operate as a waiver of such right or remedy or any other right or
remedy of Lender.



MAXIMUM LEGAL RATE. This Note is subject to the express condition that at no time shall
Borrower be obligated, or required, to pay interest on the principal balance at a rate which could
subject Lender to either civil or criminal liability as a result of such rate being in excess of
the maximum rate which Lender is permitted to charge. If, by the terms of this Note, Borrower is,
at any time, required or obligated to pay interest on the principal balance at a rate in excess of
such maximum rate, then the rate of interest under this Note shall be deemed to be immediately
reduced to such maximum rate and interest payable hereunder shall be computed at such maximum rate
and any portion of all prior interest payments in excess of such maximum rate shall be applied, or
shall retroactively be deemed to have been payments made, in reduction of the principal balance, as
the case may be.



AMENDMENT; GOVERNING LAW. This Note may be amended, changed, modified, terminated or
canceled only by a written agreement signed by the party against whom enforcement is sought for any
such action. This Note shall be governed by, and construed under, the Laws of the State of
California.



AUTHORITY. Borrower, and each person executing this Note on Borrower’s behalf, hereby
represents and warrants to Lender that, by its execution below, Borrower has the full power,


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authority and legal right to execute and deliver this Note and that the indebtedness evidenced
hereby constitutes a valid and binding obligation of Borrower without exception or limitation. In
the event that this Note is executed by more than one person or entity, the liability hereunder
shall be joint and several.




[Signature page to follow.]




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          IN WITNESS WHEREOF, Borrower has executed this Note as of the day and year first above
written.




“Borrower”




SYNTAX-BRILLIAN CORPORATION,

a Delaware corporation




	 	 	 	 	 
	By: 

Name:

	 	/s/ Wayne Pratt
 

Wayne Pratt
	 	 
	Title:

	 	EVP CFO	 	 
	 
	 	 	 	 
	SYNTAX GROUPS CORPORATION,

a California corporation	 	 
	 
	 	 	 	 
	By: 

Name:

	 	/s/ Wayne Pratt
 

Wayne Pratt
	 	 
	Title:

	 	EVP CFO	 	 
	 
	 	 	 	 
	SYNTAX CORPORATION,

a Nevada corporation	 	 
	 
	 	 	 	 
	By: 

Name:

	 	/s/ Wayne Pratt
 

Wayne Pratt
	 	 
	Title:

	 	EVP CFO	 	 







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