exv10w49



 





EXHIBIT 10.49




FIFTH AMENDED AND RESTATED PROMISSORY NOTE

VARIABLE RATE




			
	 	 	 
	$75,000,000.00
	 	July 26, 2007






FOR VALUE RECEIVED, SYNTAX-BRILLIAN CORPORATION, a Delaware corporation (“SBC”), SYNTAX GROUPS
CORPORATION, a California corporation (“SGC”) and SYNTAX CORPORATION, a Nevada corporation (“SC”
and, together with SBC and SGC, 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 Seventy Five Million and no/100 Dollars ($75,000,000.00), 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 (i) that certain Promissory Note Variable Rate executed by
SGC and SC on or about September 28, 2005, (ii) that certain Amended and Restated Promissory Note
Variable Rate executed by SGC and SC and dated as of January 31, 2006, (iii) that certain Second
Amended and Restated Promissory Note Variable Rate executed by SGC and SC and dated as of October
17, 2006, (iv) that certain Third Amended and Restated Promissory Note executed by Borrower and
dated as of December 13, 2006, and (v) that certain Fourth Amended and Restated Promissory Note
Variable Rate executed by SBC, SGC and SC and dated as of February 21, 2007.



LOAN AGREEMENT. This Note (i) is a “Note” as defined in that certain Amended and Restated
Business Loan and Security Agreement dated as of December 13, 2006, as amended (the “Loan
Agreement”), entered into by and between Borrower and Lender, as it may be amended from time to
time, (ii) represents and evidences all Advances made under the Loan Agreement, and (iii) is
subject to all of the terms and conditions thereof. All terms not defined herein shall have the
same meaning as in the Loan Agreement. In the event of a conflict between the terms of this Note
and the Loan Agreement, the terms of this Note shall prevail.



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.



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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, the Loan
Agreement, and any other Loan Documents 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:




	 	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 Note, the Loan Agreement, and the other Loan Documents; 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.



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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.



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 in the amount and within the
applicable cure period, if any, when due, as set forth herein or in the Loan
Agreement; or
	 
	 	(ii)	 	There shall be an Event of Default under the Loan Agreement; or
	 
	 	(iii)	 	There shall be a default under any of the other Loan
Documents.





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



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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 under any of the Loan Documents, or to declare a default hereunder or under
any of the Loan Documents.



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, or any other Loan Documents, 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 and the other Loan Documents, or any of them, the protection or
preservation of the collateral or security for this Note, 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) Business 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.



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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,
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. Any married person who is obligated on this Note, directly or
indirectly, agrees that recourse may be had to such person’s separate property in addition to any
and all community property of such person.



[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:

	 	/s/ Wayne Pratt
 

	 	 
	Name: Wayne Pratt	 	 
	Title: EVP CFO	 	 
	 
	 	 	 	 
	SYNTAX GROUPS CORPORATION,	 	 
	a California corporation	 	 
	 
	 	 	 	 
	By:

	 	/s/ Wayne Pratt
 

	 	 
	Name: Wayne Pratt	 	 
	Title: EVP CFO	 	 
	 
	 	 	 	 
	SYNTAX CORPORATION,	 	 
	a Nevada corporation	 	 
	 
	 	 	 	 
	By:

	 	/s/ Wayne Pratt
 

	 	 
	Name: Wayne Pratt	 	 
	Title: EVP CFO	 	 







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