EXECUTION
      VERSION




**LOAN
      AND SECURITY AGREEMENT**




**DATED
      AS OF JUNE 30, 2008**




**by
      and among**




**MMC
      CHULA VISTA II LLC, as a Borrower**




**MMC
      ESCONDIDO II LLC, as a Borrower**




**MMC
      ENERGY, INC., as Parent**




**THE
      LENDERS PARTY HERETO**




**and**




**GENERAL
      ELECTRIC CAPITAL CORPORATION,**


**as
      Administrative Agent**










**INDEX
      OF EXHIBITS AND SCHEDULES**




Schedule I
            -
            Administrative
                Agent’s, Lenders’ and Borrowers’ Representatives for Notices; Addresses;
                Delayed Draw Term Loan CommitmentsSchedule 4.3
            -
            Locations;
                Corporate or Other NamesSchedule 4.17
            -
            InsuranceSchedule 4.18
            -
            Bank
                and Security AccountsSchedule 10.3
            -
            Actions
                to Perfect LiensExhibit A
            -
            Form
                of Notice of Delayed Draw Term LoanExhibit B
            -
            Form
                of Secretary’s CertificateExhibit C
            -
            Form
                of Power of AttorneyExhibit D
            -
            Form
                of AssignmentExhibit
                E
            -
            Form
                of NoteExhibit
                F
            -
            Form
                of Notice of Conversion or
                Continuation





This
      LOAN
      AND SECURITY AGREEMENT is dated as of June 30, 2008, and agreed to by and
      between MMC CHULA VISTA II LLC, a Delaware limited liability company
      (“ Chula
      Vista Borrower ”),
      MMC
      ESCONDIDO II LLC, a Delaware limited liability company (“ Escondido
      Borrower ”
and
      together with the Chula Vista Borrower, collectively “ Borrowers ”
and
      individually each a “ Borrower ”),
      MMC
      Energy, Inc., a Delaware corporation (“ Parent ”),
      the
      Lenders (as defined below) and GENERAL ELECTRIC CAPITAL CORPORATION, a Delaware
      corporation (“ GE
      Capital ”),
      as
      administrative agent for the Lenders (in such capacity, and together with its
      successors and permitted assigns, the “ Administrative
      Agent ”).




The
      parties hereto agree as follows:




ARTICLE
      I




DEFINITIONS,
      INTERPRETATION AND ACCOUNTING TERMS




Section
      1.1  Defined
      Terms .
      As used
      in this Agreement, the following terms have the following meanings:




“ Administrative
      Agent ”
has
      the
      meaning specified in the preamble to this Agreement.




“ Affiliate ” means,
      with respect to any Person, each officer, director, general partner or
      joint-venturer of such Person and any other Person that directly or indirectly
      controls, is controlled by, or is under common control with, such Person; provided , however ,
      that
      Lender shall not be an Affiliate of Borrowers. For purpose of this definition,
      “ control ”
means
      the possession of either (a) the power to vote, or the beneficial ownership
      of,
      10% or more of the Voting Stock of such Person or (b) the power to direct or
      cause the direction of the management and policies of such Person, whether
      by
      contract or otherwise.




“ Agreement ”
means
      this Loan and Security Agreement.




“ Applicable
      Margin ”
means,
      with respect to Delayed Draw Term Loans, (i) 2.75% per annum for Base Rate
      Loans
      and (ii) 4.50% per annum for Eurodollar Rate Loans.




“ Approved
      Fund ”
means,
      with respect to any Lender, any Person (other than a natural Person) that (a)
      is
      or will be engaged in making, purchasing, holding or otherwise investing in
      commercial loans and similar extensions of credit in the ordinary course of
      its
      business and (b) is advised or managed by (i) such Lender, (ii) any Affiliate
      of
      such Lender or (iii) any Person (other than an individual) or any Affiliate
      of
      any Person (other than an individual) that administers or manages such
      Lender.




“ Assignment ”
means
      an assignment agreement entered into by a Lender, as assignor, and any
      prospective assignee thereof and accepted by Administrative Agent, in
      substantially the form of Exhibit D.




“ Base
      Rate ”
means,
      at any time, a rate per annum equal to the higher of (a) the rate last quoted
      by The
      Wall Street Journal as the
“base rate on corporate loans posted by at least 75% of the nation’s largest
      banks” in the United States or, if The
      Wall Street Journal ceases
      to quote such rate, the highest per annum interest rate published by the Federal
      Reserve Board in Federal Reserve Statistical Release H.15 (519) (Selected
      Interest Rates) as the “bank prime loan” rate or, if such rate is no longer
      quoted therein, any similar rate quoted therein (as determined by Administrative
      Agent) or any similar release by the Federal Reserve Board (as determined by
      Administrative Agent) and (b) the sum of 0.5% per annum and the Federal Funds
      Rate.




“ Base
      Rate Loan ”
means
      any Loan that bears interest based on the Base Rate.




“ Benefit
      Plan ”
means
      any employee benefit plan as defined in Section 3(3) of ERISA (whether
      governed by the laws of the United States or otherwise) to which any Credit
      Party incurs or otherwise has any obligation or liability, contingent or
      otherwise.





“ Books
      and Records ”
means
      all books, records, board minutes, contracts, licenses, insurance policies,
      environmental audits, business plans, files, computer files, computer discs
      and
      other data and software storage and media devices, accounting books and records,
      financial statements (actual and pro forma), filings with Governmental
      Authorities and any and all records and instruments relating to the Collateral
      or Borrowers’ business.




“ Borrowers ”
has
      the
      meaning set forth in the preamble of this Agreement.




“ BSA ”
has
      the
      meaning assigned to it in Section 4.22 .




“ Business
      Day ” means
      any
      day of the year that is not a Saturday, Sunday or a day on which banks are
      required or authorized to close in New York City and, when determined in
      connection with notices and determinations in respect of any Eurodollar Rate
      or
      Eurodollar Rate Loan or any funding, conversion, continuation, Interest Period
      or payment of any Eurodollar Rate Loan, that is also a day on which dealings
      in
      Dollar deposits are carried on in the London interbank market .




“ Capitalized
      Lease Obligations ”
means,
      at any time, with respect to any Capital Lease, any lease entered into as part
      of any sale and leaseback transaction of any Person or any synthetic lease,
      the
      amount of all obligations of such Person that is (or that would be, if such
      synthetic lease or other lease were accounted for as a Capital Lease)
      capitalized on a balance sheet of such Person prepared in accordance with GAAP.




“ Change
      of Control ”
means,
      the occurrence of any of the following: (a) Parent shall cease to own and
      control, legally and beneficially, all of the economic and voting rights
      associated with ownership of all outstanding Stock of all classes of Stock
      of
      each Borrower, (b) any person or group of persons (within the meaning of the
      Securities Exchange Act of 1934) shall have acquired beneficial ownership
      (within the meaning of Rule 13d-3 promulgated by the Securities and Exchange
      Commission under the Securities Exchange Act of 1934) of more than 40% of the
      issued and outstanding shares of capital Stock of Parent having the right to
      vote for the election of directors of Parent under ordinary circumstances,
      or
      (c) during any period of twelve consecutive calendar months, individuals who
      at
      the beginning of such period (or the Closing Date for any period beginning
      prior
      to the Closing Date) constituted the board of directors of Parent (together
      with
      any new directors whose election by the board of directors of Parent or whose
      nomination for election by the stockholders of Parent was approved by a vote
      of
      at least a majority of the directors then still in office who either were
      directors at the beginning of such period (or the Closing Date for any period
      beginning prior to the Closing Date) or whose election or nomination for
      election was previously so approved) cease for any reason other than death
      or
      disability to constitute a majority of the directors then in
      office.




“ Charges ”
means
      all federal, state, county, city, municipal, local, foreign or other
      governmental taxes (including taxes owed to PBGC at the time due and payable),
      levies, customs or other duties, assessments, charges, liens, and all additional
      charges, interest, penalties, expenses, claims or encumbrances upon or relating
      to (a) the Collateral, (b) the Obligations, (c) the employees, payroll,
      income or gross receipts of any Credit Party, (d) the ownership or use of any
      assets by any Credit Party or (e) any other aspect of any Credit Party’s
      business.




“ Chula
      Vista Assignment of Purchase Agreement ”
means
      the Assignment of Purchase Agreement, dated as of the date hereof, between
      the
      Chula Vista Borrower, as assignor and Administrative Agent, as
      assignee.




“ Chula
      Vista Borrower ”
has
      the
      meaning set forth in the preamble of this Agreement.




“ Chula
      Vista Equipment ”
means
      the Chula Vista Turbines, associated skids and auxiliary equipment, together
      with any and all additions, accessions, parts, accessories, substitutions and
      replacements thereof, now or hereafter installed in, affixed to or used in
      connection therewith.




“ Chula
      Vista Equity Contribution ”
means
      the equity contributions to be made by Parent to the Chula Vista Borrower on
      terms satisfactory to Administrative Agent in an amount not less than 45% of
      the
      purchase price of the Chula Vista Equipment under the Chula Vista Purchase
      Agreement.


2


“ Chula
      Vista Project ”
means
      the peaking power generation facility located at 3497 Main Street, Chula Vista,
      California.




“ Chula
      Vista Purchase Agreement ”
means,
      that certain Contract for U.S. Based Sale of Equipment and Services, dated
      as of
      January 25, 2008, by and between Seller and Parent, as assigned by Parent to
      Chula Vista Borrower pursuant to the Assignment and Assumption Agreement, dated
      as of June 25, 2008 among Seller, Parent and Chula Vista Borrower, as amended,
      supplemented or otherwise modified from time to time.




“ Chula
      Vista Seller Acknowledgment of Assignment ”
means
      the Consent and Agreement, dated as of the date hereof, between Seller and
      Administrative Agent and acknowledged by Chula Vista Borrower.




“ Chula
      Vista Turbines ”
means
      two (2) new GE LM 6000 combustion gas turbines for installation at the Chula
      Vista Project.




“ Closing
      Date ”
means
      the Business Day on which the conditions precedent set forth in Article
      III have
      been satisfied or specifically waived in writing by the Required Lenders, and
      the initial Loans have been made; provided , however ,
      that in
      no event shall the Closing Date be later than June 30, 2008.




“ Code ”
means
      the U.S. Internal Revenue Code of 1986.




“ Collateral ”
has
      the
      meaning assigned to it in Section 10.1 ,
      and any
      other property, real or personal, tangible or intangible, now existing or
      hereafter acquired, that may at any time be or become subject to a security
      interest or Lien in favor of Administrative Agent, for the benefit of the
      Secured Parties, to secure the Obligations, including the Stock of
      Borrowers.




“ Collection
      Account ”
means
      that certain account of Administrative Agent, account number 50-787-72 in the
      name of GECC EFS-T&I Depository Account, Deutsche Bank Trust Company
      Americas, New York, New York, ABA number 021-001-033.




“ Constituent
      Documents ”
means,
      with respect to any Person, collectively and, in each case, together with any
      modification of any term thereof, (a) the articles of incorporation, certificate
      of incorporation, constitution or certificate of formation of such Person,
      (b) the bylaws, operating agreement or joint venture agreement of such
      Person, (c) any other constitutive, organizational or governing document of
      such Person, whether or not equivalent and (d) any other document setting
      forth the manner of election or duties of the directors, officers or managing
      members of such Person or the designation, amount or relative rights,
      limitations and preferences of any Stock of such Person.




“ Construction
      and Project Financing ”
means
      with respect to any Project, a loan facility, loan or other financial
      arrangement provided to the owner of such Project for the purpose of
      construction of such Project.




“ Contractual
      Obligation ”
means
      as to any Person, any provision of any Security issued by such Person or of
      any
      agreement, instrument, or other undertaking (other than a Loan Document or
      the
      Purchase Agreements) to which such Person is a party or by which it or any
      of
      its property is bound or to which any of its property is subject.




“ Control
      Agreement ”
means
      a
      deposit account control agreement and/or lock box agreement among any financial
      institution at which a bank, deposit or security account is maintained,
      Administrative Agent and a Borrower, in form and substance acceptable to
      Administrative Agent.




“ Credit
      Party ”
means
      each Borrower, Parent, and each other Person (other than any Secured Party)
      that
      is or may become a party to this Agreement or any other Loan
      Document.




“ Default ”
means
      any Event of Default or any event that, with the passage of time or notice
      or
      both, would become an Event of Default.




“ Default
      Rate ”
has
      the
      meaning assigned to it in Section 2.7(d) .


3




“ Delayed
      Draw Term Loan ”
has
      the
      meaning assigned to it in Section
      2.1(a)(i) .




“ Delayed
      Draw Term Loan Commitment ”
means,
      with respect to each Lender, the commitment of such Lender to make Delayed
      Draw
      Term Loans, which commitment is in the percentage of the Delayed Draw Term
      Loan
      Commitment set forth under such Lender’s name on Schedule I under
      the caption “ Commitment
      Percentage ”,
      as
      amended to reflect Assignments and as such amount may be reduced pursuant to
      this Agreement ( including
      Section 2.1(a) ).
      The
      aggregate amount of the Delayed Draw Term Loan Commitments on the date hereof
      equals $25,500,000.




“ Delayed
      Draw Term Loan Commitment Period ”
means
      the time period commencing on the Closing Date through and including the Delayed
      Draw Term Loan Commitment Termination Date.




“ Delayed
      Draw Term Loan Commitment Termination Date ”
shall
      mean the earliest of (a) the Stated Expiry Date, (b) the date of
      termination of the Delayed Draw Term Loan Commitments in whole (but not in
      part)
      pursuant to Section
      2.5 or 11.2 ** and
      (c)
      the date on which the Obligations become due and payable in whole (but not
      in
      part) pursuant to Section 11.2 .




“ Delayed
      Draw Term Loan Facility ”
means
      the Delayed Draw Term Loan Commitments and the provisions herein related to
      the
      Delayed Draw Term Loans.




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




“ Domestic
      Person ”
means
      any “United States person” under and as defined in Section 770l(a)(30) of
      the Code.




“ Electronic
      Transmission ”
means
      each document, instruction, authorization, file, information and any other
      communication transmitted, posted or otherwise made or communicated by e-mail
      or
      E-Fax, or otherwise to or from an E-System or other equivalent
      service.




“ Environmental
      Laws ”
means
      all present and future Requirements of Law and Permits imposing liability or
      standards of conduct for or relating to the regulation and protection of human
      health, safety, the environment and natural resources, and including public
      notification requirements and environmental transfer of ownership, notification
      or approval statutes.




“ Environmental
      Liabilities ”
means
      all Liabilities (including costs of Remedial Actions, natural resource damages
      and costs and expenses of investigation and feasibility studies) that may be
      imposed on, incurred by or asserted against a Borrower as a result of, or
      related to, any claim, suit, action, investigation, proceeding or demand by
      any
      Person, whether based in contract, tort, implied or express warranty, strict
      liability, criminal or civil statute or common law or otherwise, arising under
      any Environmental Law or in connection with any environmental, health or safety
      condition or with any Release and resulting from the ownership, lease, sublease
      or other operation or occupation of property by a Borrower, whether on, prior
      or
      after the date hereof.




“ Equipment ”
means,
      collectively, the Chula Vista Equipment and the Escondido
      Equipment.




“ Equipment
      Delivery Date ”
has
      the
      meaning assigned to it in Section
      8.14 .




“ ERISA ”
means
      the Employee Retirement Income Security Act of 1974.




“ ERISA
      Affiliate ”
means,
      collectively, any Credit Party, and any Person under common control, or treated
      as a single employer, with any Credit Party, within the meaning of
      Section 414(b), (c), (m) or (o) of the Code.


4


“ ERISA
      Event ”
means
      any of the following: (a) a reportable event described in
      Section 4043(b) of ERISA (or, unless the 30-day notice requirement has been
      duly waived under the applicable regulations, Section 4043(c) of ERISA)
      with respect to a Title IV Plan, (b) the withdrawal of any ERISA Affiliate
      from a Title IV Plan subject to Section 4063 of ERISA during a plan year in
      which it was a substantial employer, as defined in Section 4001(a)(2) of
      ERISA, (c) the complete or partial withdrawal of any ERISA Affiliate from
      any Multiemployer Plan, (d) with respect to any Multiemployer Plan, the
      filing of a notice of reorganization, insolvency or termination (or treatment
      of
      a plan amendment as termination) under Section 4041A of ERISA, (e) the
      filing of a notice of intent to terminate a Title IV Plan (or treatment of
      a
      plan amendment as termination) under Section 4041 of ERISA, (f) the
      institution of proceedings to terminate a Title IV Plan or Multiemployer Plan
      by
      the PBGC, (g) the failure to make any required contribution to any Title IV
      Plan
      or Multiemployer Plan when due, (h) the imposition of a lien under
      Section 412 of the Code or Section 302 or 4068 of ERISA on any
      property (or rights to property, whether real or personal) of any ERISA
      Affiliate, (i) the failure of a Benefit Plan or any trust thereunder intended
      to
      qualify for tax exempt status under Section 401 or 501 of the Code or other
      Requirements of Law to qualify thereunder and (j) any other event or condition
      that might reasonably be expected to constitute grounds under Section 4042
      of ERISA for the termination of, or the appointment of a trustee to administer,
      any Title IV Plan or Multiemployer Plan or for the imposition of any liability
      upon any ERISA Affiliate under Title IV of ERISA other than for PBGC premiums
      due but not delinquent.




“ Escondido
      Assignment of Purchase Agreement ”
means
      the Assignment of Purchase Agreement, dated as of the date hereof, between
      the
      Escondido Borrower, as assignor and Administrative Agent, as
      assignee.




“ Escondido
      Borrower ”
has
      the
      meaning set forth in the preamble of this Agreement.




“ Escondido
      Equipment ”
means
      the Escondido Turbine, associated skids and auxiliary equipment, together with
      any and all additions, accessions, parts, accessories, substitutions and
      replacements thereof, now or hereafter installed in, affixed to or used in
      connection therewith.




“ Escondido
      Equity Contribution ”
means
      the equity contributions to be made by Parent to the Escondido Borrower on
      terms
      satisfactory to Administrative Agent in an amount not less than 45% of the
      purchase price of the Escondido Equipment under the Escondido Purchase
      Agreement.




“ Escondido
      Project ”
means
      the peaking power generation facility located at 1968 Don Lee Place, Escondido,
      California.




“ Escondido
      Purchase Agreement ”
means,
      that certain Contract for U.S. Based Sale of Equipment and Services, dated
      as of
      May 15, 2008, by and between Seller and Parent, as assigned by Parent to
      Escondido Borrower pursuant to the Assignment and Assumption Agreement, dated
      as
      of June 25, 2008 among Seller, Parent and Escondido Borrower, as amended,
      supplemented or otherwise modified from time to time.




“ Escondido
      Seller Acknowledgment of Assignment ”
means
      the Consent and Agreement, dated as of the date hereof, between Seller and
      Administrative Agent and acknowledged by Escondido Borrower




“ Escondido
      Turbine ”
means
      a
      new GE LM 6000 combustion gas turbine for installation at the Escondido
      Project.




“ Eurodollar
      Base Rate ”  means,
      with respect to any Interest Period for any Eurodollar Rate Loan, the rate
      determined by Administrative Agent to be the offered rate for deposits in
      Dollars for the applicable Interest Period appearing on the Dow Jones Markets
      Telerate Page 3750 as of 11:00 a.m. (London time) on the second full
      Business Day next preceding the first day of each Interest Period. In the event
      that such rate does not appear on the Dow Jones Markets Telerate Page 3750
      (or
      otherwise on the Dow Jones Markets screen) at such time, the “ Eurodollar
      Base Rate ”
shall
      be determined by reference to such other comparable publicly available service
      for displaying the offered rate for deposit in Dollars in the London interbank
      market as may be selected by Administrative Agent and, in the absence of
      availability, such other method to determine such offered rate as may be
      selected by Administrative Agent in its sole discretion.




“ Eurodollar
      Rate ”
means,
      with respect to any Interest Period and for any Eurodollar Rate Loan, an
      interest rate per annum determined as the ratio of (a) the Eurodollar Base
      Rate
      with respect to such Interest Period for such Eurodollar Rate Loan to (b) the
      difference between the number one and the Eurodollar Reserve Requirements with
      respect to such Interest Period and for such Eurodollar Rate
      Loan.


5


“ Eurodollar
      Rate Loan ”
means
      any Loan that bears interest based on the Eurodollar Rate.




“ Eurodollar
      Reserve Requirements ”
means,
      with respect to any Interest Period and for any Eurodollar Rate Loan, a rate
      per
      annum equal to the aggregate, without duplication, of the maximum rates
      (expressed as a decimal number) of reserve requirements in effect 2 Business
      Days prior to the first day of such Interest Period (including basic,
      supplemental, marginal and emergency reserves) under any regulations of the
      Federal Reserve Board or other Governmental Authority having jurisdiction with
      respect thereto dealing with reserve requirements prescribed for eurocurrency
      funding (currently referred to as “eurocurrency liabilities” in Regulation D of
      the Federal Reserve Board) maintained by a member bank of the United States
      Federal Reserve System.




“ E-Fax ”
means
      any system used to receive or transmit faxes electronically.




“ E-Signature ”
means
      the process of attaching to or logically associating with an Electronic
      Transmission an electronic symbol, encryption, digital signature or process
      (including the name or an abbreviation of the name of the party transmitting
      the
      Electronic Transmission) with the intent to sign, authenticate or accept such
      Electronic Transmission.




“ E-System ”
means
      any electronic system, including Intralinks ® and any
      other Internet or extranet-based site, whether such electronic system is owned,
      operated or hosted by Administrative Agent, any of its Related Persons or any
      other Person, providing for access to data protected by passcodes or other
      security system.




“ Event
      of Default ”
has
      the
      meaning assigned to it in Section 11.1 .




“ Federal
      Funds Rate ”
means,
      for any period, a fluctuating interest rate per annum equal for each day during
      such period to the weighted average of the rates on overnight federal funds
      transactions with members of the Federal Reserve System arranged by federal
      funds brokers, as determined by Administrative Agent in its sole
      discretion.




“ Federal
      Reserve Board ”
means
      the Board of Governors of the United States Federal Reserve System and any
      successor thereto.




“ Fees ”
means
      the fees due to Administrative Agent and the Lenders under Section 2.8 and
      under the Fee Letter.




“ Fee
      Letter ”
means
      the letter agreement dated as of the date hereof addressed to Borrowers and
      Parent from Administrative Agent and accepted by Borrowers and Parent, with
      respect to certain fees to be paid from time to time to Administrative Agent
      and
      its Related Persons.




“ Financial
      Statements ”
means
      a
      consolidated balance sheet of each Borrower as at the end of the relevant fiscal
      period and the related consolidated statements of income, retained earnings
      and
      cash flows for the fiscal period then ended.




“ Fiscal
      Quarter ”
means
      each three month fiscal period ending on March 31, June 30,
      September 30 or December 31.




“ Fiscal
      Year ”
means
      the twelve month period of each Borrower ending on
      December 31.




“ GAAP ”
means
      generally accepted accounting principles in the United States of America, as
      in
      effect from time to time, set forth in the opinions and pronouncements of the
      Accounting Principles Board and the American Institute of Certified Public
      Accountants, in the statements and pronouncements of the Financial Accounting
      Standards Board and in such other statements by such other entity as may be
      in
      general use by significant segments of the accounting profession that are
      applicable to the circumstances as of the date of determination.




“ GE
      Capital ”
has
      the
      meaning set forth in the preamble of this Agreement.


6


“ Governmental
      Authority ”
means
      any nation, sovereign or government, any state or other political subdivision
      thereof, any agency, authority or instrumentality thereof and any entity or
      authority exercising executive, legislative, taxing, judicial, regulatory or
      administrative functions of or pertaining to government, including any central
      bank, stock exchange, regulatory body, arbitrator, public sector entity,
      supra-national entity (including the European Union and the European Central
      Bank) and any self-regulatory organization (including the National Association
      of Insurance Commissioners).




“ Guarantor ”
means
      Parent.




“ Guaranty
      Obligation ”
means,
      as applied to any Person, any direct or indirect liability, contingent or
      otherwise, of such Person for any Indebtedness, lease, dividend or other
      obligation (the “ primary
      obligation ”)
      of
      another Person (the “ primary
      obligor ”),
      if
      the purpose or intent of such Person in incurring such liability, or the
      economic effect thereof, is to guarantee such primary obligation or provide
      support, assurance or comfort to the holder of such primary obligation or to
      protect or indemnify such holder against loss with respect to such primary
      obligation, including (a) the direct or indirect guaranty, endorsement (other
      than for collection or deposit in the ordinary course of business), co-making,
      discounting with recourse or sale with recourse by such Person of any primary
      obligation, (b) the incurrence of reimbursement obligations with respect to
      any
      letter of credit or bank guarantee in support of any primary obligation, (c)
      the
      existence of any Lien, or any right, contingent or otherwise, to receive a
      Lien,
      on the property of such Person securing any part of any primary obligation
      and
      (d) any liability of such Person for a primary obligation through any
      Contractual Obligation (contingent or otherwise) or other arrangement (i) to
      purchase, repurchase or otherwise acquire such primary obligation or any
      security therefor or to provide funds for the payment or discharge of such
      primary obligation (whether in the form of a loan, advance, stock purchase,
      capital contribution or otherwise), (ii) to maintain the solvency, working
      capital, equity capital or any balance sheet item, level of income or cash
      flow,
      liquidity or financial condition of any primary obligor, (iii) to make
      take-or-pay or similar payments, if required, regardless of non-performance
      by
      any other party to any Contractual Obligation, (iv) to purchase, sell or lease
      (as lessor or lessee) any property, or to purchase or sell services, primarily
      for the purpose of enabling the primary obligor to satisfy such primary
      obligation or to protect the holder of such primary obligation against loss
      or
      (v) to supply funds to or in any other manner invest in, such primary obligor
      (including to pay for property or services irrespective of whether such property
      is received or such services are rendered); provided , however ,
      that
“ Guaranty
      Obligations ”
shall
      not include (x) endorsements for collection or deposit in the ordinary
      course of business and (y) product warranties given in the ordinary course
      of
      business. The outstanding amount of any Guaranty Obligation shall equal the
      outstanding amount of the primary obligation so guaranteed or otherwise
      supported or, if lower, the stated maximum amount for which such Person may
      be
      liable under such Guaranty Obligation.




“ Guaranty ”
means
      the Guaranty and Pledge Agreement, dated as of the Closing Date by Parent,
      in
      favor of, and in form and substance satisfactory to, Administrative Agent,
      for
      the benefit of the Secured Parties, together with all amendments, modifications
      and supplements thereto.




“ Hazardous
      Material ”
means
      any substance, material or waste that is classified, regulated or otherwise
      characterized under any Environmental Law as hazardous, toxic, a contaminant
      or
      a pollutant or by other words of similar meaning or regulatory effect, including
      petroleum or any fraction thereof, asbestos, polychlorinated biphenyls and
      radioactive substances.




“ Hedging
      Agreement ”
means
      any Interest Rate Contract, foreign exchange, swap, option or forward contract,
      spot, cap, floor or collar transaction, any other derivative instrument and
      any
      other similar speculative transaction and any other similar agreement or
      arrangement designed to alter the risks of any Person arising from fluctuations
      in any underlying variable.


7




“ Indebtedness ”
of
      any
      Person means, without duplication, any of the following, whether or not matured:
      (a) all indebtedness for borrowed money, (b) all obligations evidenced
      by notes, bonds, debentures or similar instruments, (c) all reimbursement
      and all obligations with respect to (i) letters of credit, bank guarantees
      or bankers’ acceptances or (ii) surety, customs, reclamation or performance
      bonds (in each case not related to judgments or litigation) other than those
      entered into in the ordinary course of business, (d) all obligations to pay
      the deferred purchase price of property or services, other than trade payables
      incurred in the ordinary course of business, (e) all obligations created or
      arising under any conditional sale or other title retention agreement,
      regardless of whether the rights and remedies of the seller or lender under
      such
      agreement in the event of default are limited to repossession or sale of such
      property, (f) all Capitalized Lease Obligations, (g) all obligations,
      whether or not contingent, to purchase, redeem, retire, defease or otherwise
      acquire for value any of its own Stock or Stock Equivalents (or any Stock or
      Stock Equivalent of a direct or indirect parent entity thereof) prior to the
      date that is 180 days after the Stated Expiry Date, valued at, in the case
      of
      redeemable preferred Stock, the greater of the voluntary liquidation preference
      and the involuntary liquidation preference of such Stock plus accrued and unpaid
      dividends, (h) all payments that would be required to be made in respect of
      any Hedging Agreement in the event of a termination (including an early
      termination) on the date of determination and (i) all Guaranty Obligations
      for obligations of any other Person constituting Indebtedness of such other
      Person; provided , however ,
      that
      the items in each of clauses
      (a) through (i) above
      shall constitute “ Indebtedness ”
of
      such
      Person solely to the extent, directly or indirectly, (x) such Person is
      liable for any part of any such item, (y) any such item is secured by a
      Lien on such Person’s property or (z) any other Person has a right,
      contingent or otherwise, to cause such Person to become liable for any part
      of
      any such item or to grant such a Lien.




“ Indemnified
      Matters ”
and
      “ Indemnitee ”
have
      the respective meanings assigned to them in Section 13.4 .




“ Intellectual
      Property ”
means
      all rights, title and interests in or relating to intellectual property and
      industrial property arising under any Requirement of Law, including all
      copyrights, patents, trademarks, internet domain names, trade secrets and
      Contractual Obligations relating thereto.




“ Interest
      Period ”
means,
      with respect to any Eurodollar Rate Loan, the period commencing on the date
      such
      Eurodollar Rate Loan is made or converted to a Eurodollar Rate Loan or, if
      such
      Loan is continued, on the last day of the immediately preceding Interest Period
      therefor and ending 3 months thereafter; provided , however ,
      that
      (a) if any Interest Period would otherwise end on a day that is not a
      Business Day, such Interest Period shall be extended to the next succeeding
      Business Day, unless the result of such extension would be to extend such
      Interest Period into another such Business Day falls in the next calendar month,
      in which case such Interest Period shall end 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 end on the
      last
      Business Day of a calendar month, (c) Borrowers may not select any Interest
      Period ending after the Delayed Draw Term Loan Commitment Termination Date,
      and
      (d) there shall be outstanding at any one time no more than 10 Interest
      Periods.




“ Interest
      Rate Contracts ”
means
      all interest rate swap agreements, interest rate cap agreements, interest rate
      collar agreements and interest rate insurance.




“ IRS ”
means
      the Internal Revenue Service of the United States, and any successors
      thereto.




“ Lender ”
means,
      collectively, any financial institution or other Person that (a) is listed
      on
      the signature pages hereof as a “Lender” or (b) from time to time becomes a
      party hereto by execution of an Assignment, in each case, together with its
      successors.




“ Liabilities ”
means
      all claims, actions, suits, judgments, damages, losses, liability, obligations,
      responsibilities, fines, penalties, sanctions, costs, fees, taxes, commissions,
      charges, disbursements and expenses, in each case of any kind or nature
      (including interest accrued thereon or as a result thereto and fees, charges
      and
      disbursements of financial, legal and other advisors and consultants), whether
      joint or several, whether or not indirect, contingent, consequential, actual,
      punitive, treble or otherwise.




“ Lien ”
means
      any mortgage, deed of trust, pledge, hypothecation, assignment, charge, deposit
      arrangement, encumbrance, easement, lien (statutory or other), security interest
      or other security arrangement and any other preference, priority or preferential
      arrangement of any kind or nature whatsoever, including any conditional sale
      contract or other title retention agreement, the interest of a lessor under
      a
      Capital Lease and any synthetic or other financing lease having substantially
      the same economic effect as any of the foregoing.




“ Line
      Amount ”
means
      (a) with respect to Chula Vista Borrower, $17,500,000 and (b) with respect
      to
      Escondido Borrower, $8,500,000.


8




“ Litigation ”
means
      any claim, lawsuit, litigation, investigation or proceeding of or before any
      arbitrator or Governmental Authority.




“ Loan
      Documents ”
means
      this Agreement, the Guaranty and Pledge Agreement, the Chula Vista Assignment
      of
      Purchase Agreement, the Escondido Assignment of Purchase Agreement, the Chula
      Vista Seller Acknowledgment of Assignment, the Escondido Seller Acknowledgement
      of Assignment, the Powers of Attorney, the Fee Letter, and all other documents,
      instruments, certificates, and notices at any time delivered by any Person
      (other than any Secured Party) in connection with any of the
      foregoing.




“ Loans ”
means
      any loan made or deemed made by any Lender under this Agreement.




“ Margin
      Stock ”
has
      the
      meaning assigned to it in Section 4.11 .




“ Material
      Adverse Effect ”
means
      any fact, event or circumstance that, alone or when taken with other events
      or
      conditions occurring or existing concurrently with such event or condition
      (a)
      has or is reasonably expected to have a material adverse effect on the business,
      assets, operations, condition (financial or otherwise), or prospects of any
      Borrower or any Credit Party, (b) materially impairs or is reasonably
      expected to materially impair the ability of any Borrower or any Credit
      Party **** to
      pay
      and perform their obligations under the Loan Documents to which they are a
      party, (c) materially impairs or is reasonably expected to materially impair
      the
      ability of Administrative Agent, the Lenders and the other Secured Parties
      to
      enforce their rights and remedies under any Loan Document or (d) has or is
      reasonably expected to have any material adverse effect on the Collateral,
      the
      Liens of Administrative Agent in such Collateral or the priority of such
      Liens.




“ Multiemployer
      Plan ”
means
      any multiemployer plan, as defined in Section 400l(a)(3) of ERISA, to which
      any ERISA Affiliate incurs or otherwise has any obligation or liability,
      contingent or otherwise.




“ Non-Funding
      Lender ”
has
      the
      meaning assigned to it in Section 2.2(c) .




“ Non-Seller
      Transportation Service ”
has
      the
      meaning assigned to it in Section
      8.14(c) .




“ Non-U.S.
      Lender Party ”
means
      each of Administrative Agent, each Lender, each SPV and each participant, in
      each case that is not a Domestic Person.




“ Notes ”
means
      a
      promissory note in substantially the form of Exhibit E executed and
      delivered by each Borrower, payable to the order of a Lender in a principal
      amount equal to the amount of such Lender’s Delayed Draw Term Loan
      Commitment.




“ Notice
      of Delayed Draw Term Loan ”
has
      the
      meaning assigned to it in Section 2.2(a) .




“ Obligations ”
means,
      with respect to any Credit Party, all amounts, obligations, liabilities,
      covenants and duties of every type and description owing by such Credit Party
      to
      the Secured Parties, any other Indemnitee and any Affiliate of any of them
      arising out of, under, or in connection with, any Loan Document or any other
      agreement between any Credit Party and Lender, whether direct or indirect
      (regardless of whether acquired by assignment), absolute or contingent, due
      or
      to become due, whether liquidated or not, now existing or hereafter arising
      and
      however acquired, and whether or not evidenced by any instrument or for the
      payment of money, including, without duplication, (a) if such Credit Party
      is a
      Borrower, all Loans, (b) all interest, whether or not accruing after the filing
      of any petition in bankruptcy, or the commencement of any insolvency,
      reorganization or similar proceeding, whether or not a claim for post-filing
      or
      post-petition interest is allowed in such proceeding and (c) all other fees,
      expenses (including fees, charges and disbursements of counsel), interest,
      commissions, charges, costs, disbursements, indemnities and reimbursement of
      amounts paid and other sums chargeable to such Credit Party under any Loan
      Document.




“ OFAC ”
has
      the
      meaning assigned to it in Section 4.22 .




“ Other
      Taxes ”
has
      the
      meaning assigned to it in Section
      2.13(c) .




“ Parent ”
has
      the
      meaning set forth in the preamble of this Agreement.


9




“ Parent
      Advances ”
has
      the
      meaning specified in Section
      8.1(b) .




“ PBGC ”
means
      the United States Pension Benefit Guaranty Corporation and any successor
      thereto.




“ Permit ”
means,
      with respect to any Person, any permit, approval, authorization, license,
      registration, certificate, concession, grant, franchise, variance or permission
      from, and any other Contractual Obligations with, any Governmental Authority,
      in
      each case whether or not having the force of law and applicable to or binding
      upon such Person or any of its property or to which such Person or any of its
      property is subject.




“ Permitted
      Lien ”
means
      (a) any possessory lien arising by operation of law in favor of Seller
      prior to delivery of the Equipment to Borrowers; and (b) Liens in favor of
      Administrative Agent securing the Obligations.




“ Person ”
means
      any individual, partnership, corporation (including a business trust and a
      public benefit corporation), joint stock company, estate, association, firm,
      enterprise, trust, limited liability company, unincorporated association, joint
      venture and any other entity or Governmental Authority.




“ Powers
      of Attorney ”
means
      the powers of attorney substantially in the form of Exhibit C .




“ Prepayment
      Fee ”
has
      the
      meaning assigned to it in Section 2.8(b) .




“ Projects ”
means,
      collectively, the Chula Vista Project and the Escondido Project.




“ Pro
      Rata Outstandings ”
means,
      as to any Lender at any time in the case of the Delayed Draw Term Loan Facility,
      the outstanding principal amount of the Delayed Draw Term Loans owing to such
      Lender.




“ Pro
      Rata Share ”
means,
      with respect to any Lender and at any time, the percentage obtained by dividing
      (a) the Delayed Draw Term Loan Commitment (or, if such Delayed Draw Term Loan
      Commitment is terminated, the Pro Rata Outstandings therein) of such Lender
      then
      in effect under the Delayed Draw Term Loan Facility by (b) the sum of the
      Delayed Draw Term Loan Commitments (or, if such Delayed Draw Term Loan
      Commitments in the Delayed Draw Term Loan Facility are terminated, the Pro
      Rata
      Outstandings therein) of all Lenders then in effect under the Delayed Draw
      Term
      Loan Facility.




“ Purchase
      Agreements ”
means,
      collectively, the Chula Vista Purchase Agreement and the Escondido Purchase
      Agreement. The Chula Vista Purchase Agreement and the Escondido Purchase
      Agreement may each be referred to individually as a “ Purchase
      Agreement ”.




“ Register ”
has
      the
      meaning specified in Section 2.11(b) .




“ Related
      Persons ”
means,
      with respect to any Person, each Affiliate of such Person and each director,
      officer, employee, agent, trustee, representative, attorney, accountant and
      each
      insurance, environmental, legal, financial and other advisor (including those
      retained in connection with the satisfaction or attempted satisfaction of any
      condition set forth in Article III )
      and
      other consultants and agents of or to such Person or any of its
      Affiliates.




“ Release ”
means
      any release, threatened release, spill, emission, leaking, pumping, pouring,
      emitting, emptying, escape, injection, deposit, disposal, discharge, dispersal,
      dumping, leaching or migration of Hazardous Material into or through the
      environment.




“ Remedial
      Action ”
means
      all actions required to (a) clean up, remove, treat or in any other way address
      any Hazardous Material in the indoor or outdoor environment, (b) prevent or
      minimize any Release so that a Hazardous Material does not migrate or endanger
      or threaten to endanger public health or welfare or the indoor or outdoor
      environment or (c) perform pre remedial studies and investigations and
      post-remedial monitoring and care with respect to any Hazardous
      Material.


10




“ Required
      Lenders ”
means,
      at any time, Lenders having at such time in excess of 50% of the sum of the
      aggregate Delayed Draw Term Loan Commitments (or, if such Delayed Draw Term
      Loan
      Commitments are terminated, the sum of the Pro Rata Outstandings in the Delayed
      Draw Term Loan Facility) then in effect, ignoring, in such calculation, the
      amounts held by any Non-Funding Lender.




“ Requirement
      of Law ”
means,
      with respect to any Person, collectively, the common law and all federal, state,
      local, foreign, multinational or international laws, statutes, codes, treaties,
      standards, rules and regulations, guidelines, ordinances, orders, judgments,
      writs, injunctions, decrees (including administrative or judicial precedents
      or
      authorities) and the interpretation or administration thereof by, and other
      determinations, directives, requirements or requests of, any Governmental
      Authority, in each case whether or not having the force of law and that are
      applicable to or binding upon such Person or any of its property or to which
      such Person or any of its property is subject.




“ Restricted
      Payment ”
means:
      (a) the declaration or payment of any dividend or the incurrence of any
      liability to make any other payment or distribution of cash or other property
      or
      assets on or in respect of any Borrower’s Stock, (b) any payment or distribution
      made in respect of any subordinated Indebtedness of any Borrower in violation
      of
      any subordination or other agreement made in favor of the Lenders, (c) any
      payment on account of the purchase, redemption, defeasance or other retirement
      of any Borrower’s Stock or Indebtedness or any other payment or distribution
      made in respect of any thereof, either directly or indirectly; other than that
      arising under this Agreement.




“ Secured
      Parties ”
means
      the Lenders, Administrative Agent, each other Indemnitee and any other holder
      of
      any Obligation of any Credit Party.




“ Security ”
means
      all Stock, Stock Equivalents, voting trust certificates, bonds, debentures,
      instruments and other evidence of Indebtedness, whether or not secured,
      convertible or subordinated, all certificates of interest, share or
      participation in, all certificates for the acquisition of, and all warrants,
      options and other rights to acquire, any Security.




“ Sell ”
means,
      with respect to any property, to sell, convey, transfer, assign, license, lease
      or otherwise dispose of, any interest therein or to permit any Person to acquire
      any such interest, including, in each case, through a sale and leaseback
      transaction or through a sale, factoring at maturity, collection of or other
      disposal, with or without recourse, of any notes or accounts receivable.
      Conjugated forms thereof and the noun “ Sale ”
have
      correlative meanings.




“ Seller ”
means
      GE Packaged Power, Inc., a Delaware corporation.




“ Senior
      Obligations ”
has
      the
      meaning assigned to it in Section
      13.24 .




“ Solvent ”
means,
      with respect to any Person as of any date of determination, that, as of such
      date, (a) the value of the assets of such Person (both at fair value and present
      fair saleable value) is greater than the total amount of liabilities (including
      contingent and unliquidated liabilities) of such Person, (b) such Person is
      able
      to pay all liabilities of such Person as such liabilities mature and (c) such
      Person does not have unreasonably small capital. In computing the amount of
      contingent or unliquidated liabilities at any time, such liabilities shall
      be
      computed at the amount that, in light of all the facts and circumstances
      existing at such time, represents the amount that can reasonably be expected
      to
      become an actual or matured liability.




“ SPV ”
means
      any special purpose funding vehicle identified as such in a writing by any
      Lender to Administrative Agent.




“ Stated
      Expiry Date ”
means
      the earlier of (a) the date that is 150 days after the date on which Seller
      shall have delivered all of the Equipment to Borrowers or the Projects and
      (b) July 31, 2009.




“ Stock ”
means
      all shares of capital stock (whether denominated as common stock or preferred
      stock), equity interests, beneficial, partnership or membership interests,
      joint
      venture interests, participations or other ownership or profit interests in
      or
      equivalents (regardless of how designated) of or in a Person (other than an
      individual), whether voting or non-voting.


11




“ Stock
      Equivalents ”
means
      all Securities convertible into or exchangeable for Stock or any other Stock
      Equivalent and all warrants, options or other rights to purchase, subscribe
      for
      or otherwise acquire any Stock or any other Stock Equivalent, whether or not
      presently convertible, exchangeable or exercisable.




“ Subsidiary ”
means,
      with respect to any Person, any corporation, partnership, joint venture, limited
      liability company, association or other entity, the management of which is,
      directly or indirectly, controlled by, or of which an aggregate of more than
      50%
      of the outstanding Voting Stock is, at the time, owned or controlled directly
      or
      indirectly by, such Person or one or more Subsidiaries of such
      Person.




“ Taxes ”
has
      the
      meaning assigned to it in Section
      2.13(a) .




“ Tax
      Returns ”
has
      the
      meaning assigned to it in Section 4.10 .




“ Termination
      Date ”
means
      the date on which all Obligations under this Agreement are indefeasibly paid
      in
      full, in cash, and Borrowers shall have no further right to borrow any moneys
      or
      obtain other credit extensions or financial accommodations under this
      Agreement.




“ Third-Party
      Storage Facility ”
has
      the
      meaning assigned to it in Section
      8.14(c) .




“ Title
      IV Plan ”
means
      a
      pension plan subject to Title IV of ERISA, other than a Multiemployer Plan,
      to
      which any ERISA Affiliate incurs or otherwise has any obligation or liability,
      contingent or otherwise.




“ UCC ”
means
      the Uniform Commercial Code of any applicable jurisdiction and, if the
      applicable jurisdiction shall not have any Uniform Commercial Code, the Uniform
      Commercial Code as in effect in the State of New York.




“ Unused
      Delayed Draw Term Loan Commitment Fee ”
has
      the
      meaning assigned to it in Section 2.8(a) .




“ U.S.
      Lender Party ”
means
      each of Administrative Agent, each Lender, each SPV and each participant, in
      each case, that is a Domestic Person.




“ Voting
      Stock ”
means
      Stock of any Person having ordinary power to vote in the election of members
      of
      the board of directors, managers, trustees or other controlling Persons, of
      such
      Person (irrespective of whether, at the time, Stock of any other class or
      classes of such entity shall have or might have voting power by reason of the
      occurrence of any contingency).




“ Withdrawal
      Liability ”
means,
      at any time, any liability incurred (whether or not assessed) by any ERISA
      Affiliate and not yet satisfied or paid in full at such time with respect to
      any
      Multiemployer Plan pursuant to Section 4201 of ERISA.




Section
      1.2  UCC
      Terms .
      The
      following terms have the meanings given to them in the applicable UCC:
“ account ”,
      “ account
      debtor ”,
      “ chattel
      paper ”,
      “ commercial
      tort claim ”,
      “ contract ”,
      “ deposit
      account ”, “document ”,
      “ equipmen t”,
      “f ixtures ”,
      “ general
      intangible ”,
      “ goods ”, “instrument ”,
      “ inventory ”,
      “ investment
      property ”,
      “ letter-of-credit
      rights , “payment
      intangible ”,
      “ proceeds ”,
      “ software ”
and
      “ supporting
      obligation ”.
      To the
      extent that the UCC is used to define any term herein or in any Loan Document
      and such term is defined differently in different Articles or Divisions of
      the
      UCC, the definition of such term contained in Article or Division 9 shall
      govern.




Section
      1.3  Accounting
      Terms and Principles .
      All
      accounting determinations required to be made pursuant hereto shall, unless
      expressly otherwise provided herein, be made in accordance with
      GAAP.


12


Section
      1.4  Interpretation .
      (a )  Certain
      Terms .
      Except
      as set forth in any Loan Document, all accounting terms not specifically defined
      herein shall be construed in accordance with GAAP (except for the term
“ property ”,
      which
      shall be interpreted as broadly as possible, including, in any case, cash,
      Securities, other assets, rights under Contractual Obligations and Permits
      and
      any right or interest in any property). The terms “ herein ”,
      “ hereof ”
and
      similar terms refer to this Agreement as a whole. In the computation of periods
      of time from a specified date to a later specified date in any Loan Document,
      the term “ from ”
means
      “from and including” and the words “ to ”
and
      “ until ”
each
      mean “to but excluding” and the word “ through ”
means
      “to and including.” In any other case, the term “ including ”
when
      used in any Loan Document means “including without limitation.” The term
“ documents ”
means
      all writings, however evidenced and whether in physical or electronic form,
      including all documents, instruments, agreements, notices, demands,
      certificates, forms, financial statements, opinions and reports. The term
“ incur ”
means
      incur, create, make, issue, assume or otherwise become directly or indirectly
      liable in respect of or responsible for, in each case whether directly or
      indirectly, and the terms “incurrence” and “incurred” and similar derivatives
      shall have correlative meanings.




(b)  Certain
      References .
      Unless
      otherwise expressly indicated, references (i) in this Agreement to an
      Exhibit, Schedule, Article, Section, clause or paragraph refer to the
      appropriate Exhibit or Schedule to, or Article, Section, clause or
      paragraph in, this Agreement and (ii) in any Loan Document, to (A) any
      agreement or instrument shall include, without limitation, all exhibits,
      schedules, appendixes and annexes to such agreement and, unless the prior
      consent of Lender required therefor is not obtained, any amendment, amendment
      and restatement, supplement or other modification to any term of such agreement
      from time to time, (B) any statute shall be to such statute as modified from
      time to time and to any successor legislation thereto, in each case as in effect
      at the time any such reference is operative and (C) any time of day shall
      be a reference to New York time. Titles of articles, sections, clauses,
      paragraphs, exhibits, schedules and annexes contained in any Loan Document
      are
      without substantive meaning or content of any kind whatsoever and are not a
      part
      of the agreement between the parties hereto. Unless otherwise expressly
      indicated, the meaning of any term defined (including by reference) in any
      Loan
      Document shall be equally applicable to both the singular and plural forms
      of
      such term.




ARTICLE
      II




THE
      FACILIT Y




Section
      2.1  Delayed
      Draw Term Loan Commitment .




(a)  Establishment
      of Delayed Draw Term Loan Facility .
      During
      the Delayed Draw Term Commitment Period, and subject to the terms and conditions
      hereof, each Delayed Draw Term Lender severally agrees to make term loans (each,
      a “ Delayed
      Draw Term Loan ”)
      to
      Borrowers after the Closing Date in an amount up to but not exceeding such
      Lender’s Delayed Draw Term Commitment; provided , however ,
      that
      the maximum aggregate principal amount of Delayed Draw Term Loans that may
      be
      advanced to any Borrower shall not exceed the Line Amount for such Borrower.
      Any
      amount borrowed under this Section
      2.1(a) and
      subsequently repaid or prepaid may not be reborrowed. Delayed
      Draw Term Loans shall be made in an aggregate minimum amount of $160,000. Each
      Lender’s Delayed Draw Term Loan Commitment shall be reduced by the amount of
      each Delayed Draw Term Loan advanced by such Lender this Section
      2.1(a) .
      Each
      Lender’s Delayed Draw Term Commitment shall expire on the Delayed Draw Term
      Commitment Termination Date.




(b)  Scheduled
      Repayments .
      The
      Delayed Draw Term Loans shall be repayable on the Stated Expiry
      Date.




Section
      2.2  Borrowing
      Procedures .




(a)  Notice
      from Borrower s .
      Each
      Delayed Draw Term Loan shall be made on notice given by Borrowers to
      Administrative Agent not later than 1:00 p.m. New York time on (i) the first
      Business Day, in the case of a Base Rate Loan and (ii) the third Business
      Day, in the case of a Eurodollar Rate Loan, prior to the date of the proposed
      Delayed Draw Term Loan. Each such notice shall be made in a writing
      substantially in the form of Exhibit A (a
“ Notice
      of Delayed Draw Term Loan ”)
      duly
      completed.


13




(b)  Notice
      to each Lender .
      Administrative Agent shall give to each Lender prompt notice of Administrative
      Agent’s receipt of a Notice of Delayed Draw Term Loan. Each Lender shall, before
      12:00 noon on the date of the proposed borrowing, make available to
      Administrative Agent at its address referred to in Section 13.11 ,
      such
      Lender’s Pro Rata Share of such proposed borrowing and, on the Closing Date,
      such Lender’s Pro Rata Share of the Delayed Draw Term Loan. Upon fulfillment or
      due waiver (i) on the Closing Date, of the applicable conditions set forth
      in Section 3.1 and (ii)
      on the Closing Date and any time thereafter, of the applicable conditions set
      forth in Section 3.2 ,
      Administrative Agent shall make such funds available to applicable
      Borrower.




(c)  Non-Funding
      Lenders .
      Unless
      Administrative Agent shall have received notice from any Lender prior to the
      date such Lender is required to make any payment hereunder with respect to
      any
      Delayed Draw Term Loan that such Lender will not make such payment (or any
      portion thereof) available to Administrative Agent, Administrative Agent may
      assume that such Lender has made such payment available to Administrative Agent
      on the date such payment is required to be made in accordance with this Article II and
      Administrative Agent may, in reliance upon such assumption, make available
      to
      Borrowers on such date a corresponding amount. Borrowers jointly and severally
      agree to repay to Administrative Agent on demand such amount (until repaid
      by
      such Lender) with interest thereon for each day from the date such amount is
      made available to Borrowers until the date such amount is repaid to
      Administrative Agent, at the interest rate applicable to the Obligation that
      would have been created when Administrative Agent made available such amount
      to
      Borrowers had such Lender made a corresponding payment available; provided , however ,
      that
      such payment shall not relieve such Lender of any obligation it may have to
      Borrowers. In
      addition, any Lender that shall not have made available to Administrative
      Agent any portion of any payment described above (any such Lender, a
“ Non-Funding
      Lender ”)
      agrees
      to pay such amount to Administrative Agent on demand together with interest
      thereon, for each day from the date such amount is made available to Borrowers
      until the date such amount is repaid to Administrative Agent, at the Federal
      Funds Rate for the first Business Day and thereafter (i) in the case of a
      payment in respect of a Loan, at the interest rate applicable at the time to
      such Delayed Draw Term Loan and (ii) otherwise, at the interest rate
      applicable to Delayed Draw Term Loans bearing interest at the Base Rate. Such
      repayment shall then constitute the funding of the corresponding Delayed Draw
      Term Loan (including any Delayed Draw Term Loan deemed to have been made
      hereunder with such payment). The existence of any Non-Funding Lender shall
      not
      relieve any other Lender of its obligations under any Loan Document, but no
      other Lender shall be responsible for the failure of any Non-Funding Lender
      to
      make any payment required under any Loan Document.




Section
      2.3  [Intentionally
      Omitted]




Section
      2.4  [Intentionally
      Omitted]




Section
      2.5  Term
      and Prepayment .




(a)  Delayed
      Draw Term Loan Commitment Termination Date .
      Upon
      the Delayed Draw Term Loan Commitment Termination Date the obligation of the
      Lenders to make Delayed Draw Term Loans hereunder shall immediately terminate
      and Borrowers shall jointly and severally pay to Administrative Agent in full,
      in cash: (i) all outstanding Delayed Draw Term Loans and all accrued but unpaid
      interest thereon and (ii) all other non-contingent Obligations due to or
      incurred by any Secured Party.




(b)  [Intentionally
      Omitted]




(c)  Mandatory
      Prepayment .
      Upon
      receipt on or after the Closing Date by any Borrower of net cash proceeds
      arising from any
      casualty or condemnation event with respect to any property of such
      Borrower, including the Collateral, or any liquidated damage, refund or other
      payments under any Purchase Agreement such Borrower shall immediately pay or
      cause to be paid to Administrative Agent an amount equal to 100% of such net
      cash proceeds or payments, as applicable, and Administrative Agent shall apply
      the same to the Obligations as set forth in Section 2.10(b) .




(d)  Voluntary
      Prepayment and Commitment Termination .
      Borrowers shall have the right, at any time upon 30 days’ prior written notice
      to Administrative Agent to (i) terminate voluntarily all (but not part) of
      the
      Delayed Draw Term Loan Commitments and (ii) prepay all of the Obligations.
      The effective date of termination of the Delayed Draw Term Loan Commitments
      and
      the prepayment of all of the Delayed Draw Term Loans specified in such notice
      shall constitute the Delayed Draw Term Loan Commitment Termination Date. If
      Borrowers exercise such right of termination and prepayment, or if the Delayed
      Draw Term Loan Commitments are terminated for any reason prior to the Stated
      Expiry Date (including as a result of the occurrence of an Event of Default),
      Borrowers shall jointly and severally pay to Administrative Agent the applicable
      Prepayment Fee.


14




Section
      2.6  Single
      Loan .
      All
      Loans to Borrowers and all of the other Obligations of Borrowers arising under
      this Agreement and the other Loan Documents shall constitute one joint and
      several general obligation of Borrowers secured by all of the
      Collateral.




Section
      2.7  Interest.




(a)  Rate .
      All
      Loans and the outstanding amount of all other Obligations shall bear interest,
      in the case of Loans, on the unpaid principal amount thereof from the date
      such
      Loans are made and, in the case of such other Obligations, from the date such
      other Obligations are due and payable until, in all cases, paid in full, except
      as otherwise provided in clause
      (c) below,
      as follows: (i) in the case of Base Rate Loans, at a rate per annum equal to
      the
      sum of the Base Rate and the Applicable Margin, each as in effect from time
      to
      time, (ii) in the case of Eurodollar Rate Loans, at a rate per annum equal
      to
      the sum of the Eurodollar Rate and the Applicable Margin, each as in effect
      for
      the applicable Interest Period, and (iii) in the case of other Obligations,
      at a
      rate per annum equal to the sum of the Base Rate and the Applicable Margin
      for
      Base Rate Loans, each as in effect from time to time.




(b)  Computation .
      All
      computations of interest, and all calculations of Fees, shall be made by
      Administrative Agent on the basis of a three hundred and sixty (360) day year,
      in each case for the actual number of days occurring in the period for which
      such interest or Fee is payable. Each determination by Administrative Agent
      of
      an interest rate hereunder (including determinations of a Eurodollar Rate or
      Base Rate in accordance with the definitions of “Eurodollar Rate” and “Base
      Rate”, respectively) shall be conclusive and binding for all purposes, absent
      manifest error.




(c)  Payments .
      Interest accrued shall be payable in arrears (i) if accrued on the principal
      amount of any Loan, (A) at maturity (whether by acceleration or otherwise),
      (B)
      upon the payment or prepayment of the principal amount on which such interest
      has accrued and (C)(1) if such Loan is a Base Rate Loan, on the last day of
      each
      calendar month commencing on the first such day following the making of such
      Loan and (2) if such Loan is a Eurodollar Rate Loan, on the last day of each
      Interest Period applicable to such Loan and, if applicable, on each date during
      such Interest Period occurring every 3 months from the first day of such
      Interest Period and (ii) if accrued on any other Obligation, on demand from
      any
      after the time such Obligation is due and payable (whether by acceleration
      or
      otherwise).




(d)  Default
      Rate .
      Effective upon the occurrence of any Event of Default and for so long as any
      Event of Default shall be continuing, the Applicable Margins shall automatically
      be increased by 2% per annum (such increased rate, the “ Default
      Rate ”),
      and
      all outstanding Obligations, including unpaid interest, shall continue to accrue
      interest from the date of such Event of Default at the Default Rate applicable
      to such Obligations.




(e)  Conversion
      and Continuation Options .




(i)  Option .
      Each
      Borrower may elect (A) in the case of any Eurodollar Rate Loan of such Borrower,
      (1) to continue such Eurodollar Rate Loan or any portion thereof for an
      additional Interest Period on the last day of the Interest Period applicable
      thereto and (2) to convert such Eurodollar Rate Loan or any portion thereof
      into
      a Base Rate Loan at any time on any Business Day, subject to the payment of
      any
      breakage costs required by Section 2.12(a) ,
      and (B)
      in the case of Base Rate Loans, to convert such Base Rate Loans or any portion
      thereof into Eurodollar Rate Loans at any time on any Business Day upon 3
      Business Days’ prior notice; provided , however ,
      that,
      (x) for each Interest Period, the aggregate amount of Eurodollar Rate Loans
      having such Interest Period must be an integral multiple of $1,000,000 and
      (y)
      no conversion in whole or in part of Base Rate Loans to Eurodollar Rate Loans
      and no continuation in whole or in part of Eurodollar Rate Loans shall be
      permitted at any time at which (1) an Event of Default shall be continuing
      and
      Administrative Agent or the Required Lenders shall have determined in their
      sole
      discretion not to permit such conversions or continuations or (2) such
      continuation or conversion would be made during a suspension imposed by Section 2.14 .


15




(ii)  Procedure .
      Each
      such election shall be made by giving Administrative Agent at least 3 Business
      Days’ prior notice in substantially the form of Exhibit F (a
“ Notice
      of Conversion or Continuation ”)
      duly
      completed. Administrative Agent shall promptly notify each Lender of its receipt
      of a Notice of Conversion or Continuation and of the options selected therein.
      If Administrative Agent does not receive a timely Notice of Conversion or
      Continuation from a Borrower containing a permitted election to continue or
      convert any Eurodollar Rate Loan of such Borrower, then, upon the expiration
      of
      the applicable Interest Period, such Loan shall be automatically converted
      to a
      Base Rate Loan. Each partial conversion or continuation shall be allocated
      ratably among the Lenders in accordance with their Pro Rata Share.




(f)  Non-Business
      Days .
      If any
      interest or any other payment under this Agreement becomes due and payable
      on a
      day other than a Business Day, such payment date shall be extended to the next
      succeeding Business Day and interest thereon shall be payable at the then
      applicable rate during such extension.




(g)  Maximum
      Lawful Rate .
      It is
      the intention of the parties hereto to comply with any applicable usury laws;
      accordingly, it is agreed that, notwithstanding any provisions to the contrary
      in this Agreement, in no event shall this Agreement require the payment or
      permit the collection of interest or any amount in the nature of interest or
      fees in excess of the maximum amount permitted by applicable law. If any such
      excess interest is contracted for, charged or received under this Agreement,
      or
      in the event that all of the principal balance shall be prepaid, so that under
      any of such circumstances the amount of interest contracted for, charged or
      received under this Agreement shall exceed the maximum amount of interest
      permitted by applicable law, then in such event any such excess which may have
      been collected shall be either applied as a credit against the then unpaid
      principal balance of any Loan or refunded to Borrowers, at the option of
      Administrative Agent and the effective rate of interest shall be
      automatically reduced to the maximum lawful contract rate allowed under
      applicable law as now or hereafter construed by the courts having jurisdiction
      thereof.




Section
      2.8  Fees .
      Borrowers jointly and severally agree to pay to Administrative Agent the
      following fees:




(a)  Unused
      Delayed Draw Term Loan Commitment Fee .
      For the
      benefit of each Lender, a commitment fee on the average daily amount by which
      the Delayed Draw Term Loan Commitment, of such Lender, as in effect on such
      day,
      exceeds its Pro Rata Share of the aggregate outstanding principal amount of
      all
      Delayed Draw Term Loans (the “ Unused
      Delayed Draw Term Loan Commitment Fee ”)
      from
      the Closing Date through the Delayed Draw Term Loan Commitment Termination
      Date
      at a rate per annum equal to 0.50%. The Unused Delayed Draw Term Loan Commitment
      Fee is payable in arrears on (i) the first day of each calendar month following
      the Closing Date and (ii) the Delayed Draw Term Loan Commitment Termination
      Date.




(b)  Prepayment
      Fee .
      For the
      benefit of each Lender, in the event that the Delayed Draw Term Loan Commitments
      are terminated or Borrowers prepay all or a part of the Delayed Draw Term Loans
      (in each case, whether voluntarily by Borrowers, upon Default or otherwise,
      other than pursuant to a mandatory prepayment pursuant to Section 2.5(c)),
      an
      amount (the “ Prepayment
      Fee ”)
      equal
      to the sum of (x) the amount of the Delayed Draw Term Loan Commitments being
      terminated plus (y) the principal amount of the Delayed Draw Term Loans being
      prepaid prior to such termination, multiplied by:




(i)  3.00%
      if
      such event occurs on or after the Closing Date and on or before the first
      anniversary of the Closing Date, payable on the date of such termination or
      prepayment; or


16




(ii)  0%
      if
      such event occurs after the first anniversary of the Closing Date




; provided , however ,
      that
      Borrowers shall not be required to pay (x) such applicable Prepayment Fee if
      the
      Delayed Draw Term Loans are prepaid in full (and the Delayed Draw Term Loan
      Commitment terminated) with the proceeds of a construction and project financing
      for the Projects which GE Capital is a mandated lead arranger and book running
      manager of such financing, (y) such applicable Prepayment Fee with respect
      to Delayed Draw Term Loan Commitments or Delayed Draw Term Loans relating to
      a
      Borrower and such Borrower’s Project (based on the Line Amount for such
      Borrower) if the Credit Parties have paid in full the applicable breakup fee
      to
      GE Capital for such Project in accordance with the Fee Letter and (z) such
      applicable Prepayment Fee if the Borrowers have paid in full all of the
      Obligations prior to the first anniversary of the Closing Date pursuant to
      a
      declaration by the Administrative Agent under Section
      11.2(a) that
      such Obligations are then due and payable as a result of the occurrence and
      continuance of an Event of Default under Section
      11.1(j) with
      respect to any Borrower; provided , further  that in the
      event that the Borrowers elect not to complete the Projects and sell the
      Equipment and prepay in full the Delayed Draw Term Loans and terminate in full
      the Delayed Draw Term Loan Commitments on or before the first anniversary of
      the
      Closing Date from the proceeds of such sale, then the Prepayment Fee payable
      shall be equal to the sum of (i) the daily amount of interest which accrues
      and is payable on the outstanding Delayed Draw Term Loans being prepaid for
      the
      date of prepayment multiplied by the
      number of days remaining from the date of prepayment to and including the first
      anniversary of the Closing Date, plus (ii) the
      daily amount of the Unused Delayed Draw Term Loan Commitment Fee that accrues
      and is payable for the date of prepayment multiplied by the
      number of days remaining from the date of prepayment to and including the first
      anniversary of the Closing Date. Each Borrower acknowledges and agrees that
      (i)
      it would be difficult or impractical to calculate the Lenders’ actual damages
      from an early termination of the Delayed Draw Term Loan Commitments or the
      prepayment of the Delayed Draw Term Loans **** for
      any
      reason, (ii) the Prepayment Fee provided above is intended to be fair and
      reasonable approximation of such damages and (iii) the Prepayment Fee is not
      intended to be a penalty.




(c)  Other
      Fees .
      Borrowers shall jointly and severally pay to Administrative Agent the additional
      fees and expenses described in the Fee Letter.




Section
      2.9  Receipt
      of Payments .
      (a )  Procedure .
      Borrowers shall make each payment under any Loan Document not later than
      11:00 a.m. on the day when due to Administrative Agent by wire transfer to
      the following account (or at such other account or by such other means to such
      other address as Administrative Agent shall have notified Borrowers in writing
      within a reasonable time prior to such payment) in immediately available Dollars
      and without setoff or counterclaim:




ABA
      No.
      021-001-033


Account
      Number 50-787-72


Deutsche
      Bank Trust Company Americas, New York, New York


Account
      Name: GECC EFS-T&I Depository Account


Reference:
      EF # 22385




Administrative
      Agent shall promptly thereafter cause to be distributed immediately available
      funds relating to the payment of principal, interest or fees to the Lenders,
      in
      accordance with the application of payments set forth in Section 2.10 .
      The
      Lenders shall make any payment under any Loan Document in immediately available
      Dollars and without setoff or counterclaim. Payments received by Administrative
      Agent after 11:00 a.m. shall be deemed to be received on the next Business
      Day.




(b)  Advancing
      Payments .
      Unless
      Administrative Agent shall have received notice from any Borrower to the Lenders
      prior to the date on which any payment is due hereunder that Borrowers will
      not
      make such payment in full, Administrative Agent may assume that Borrowers have
      made such payment in full to Administrative Agent on such date and
      Administrative Agent may, in reliance upon such assumption, cause to be
      distributed to each Lender on such due date an amount equal to the amount then
      due such Lender. If and to the extent that Borrowers shall not have made such
      payment in full to Administrative Agent, each Lender shall repay to
      Administrative Agent on demand such amount distributed to such Lender together
      with interest thereon (at the Federal Funds Rate for the first Business Day
      and
      thereafter, at the rate applicable to Loans that bear interest at the Base
      Rate)
      for each day from the date such amount is distributed to such Lender until
      the
      date such Lender repays such amount to Administrative Agent.


17




Section
      2.10  Application
      of Payments .




(a)  Application
      of Voluntary Prepayments .
      Unless
      otherwise provided in this Section 2.10 or
      elsewhere in any Loan Document, all payments and any other amounts received
      by
      Administrative Agent from or for the benefit of Borrowers shall be applied
      to
      repay the Obligations Borrowers so designate.




(b)  Application
      of Mandatory Prepayments .
      Subject
      to the provisions of clause
      (c) below
      with respect to the application of payments during the continuance of an Event
      of Default, any payment made by Borrowers to Administrative Agent pursuant
      to Section 2.5(c) or any
      other prepayment of the Obligations required to be applied in accordance with
      this clause
      (b) shall be
      applied first ,
      to
      repay the outstanding principal balance of the Delayed Draw Term Loans, second ,
      to pay
      any other Obligations then due and payable, and, then ,
      any
      excess shall be returned to Borrowers.




(c)  Application
      of Payments During an Event of Default .
      Each
      Borrower and each other Credit Party party hereto hereby irrevocably waives
      the
      right to direct the application during the continuance of an Event of Default
      of
      any and all payments in respect of any Obligation and any proceeds of Collateral
      and agrees that, notwithstanding the provisions of clause (a) above,
      Administrative Agent may, and, upon either (i) the direction of the Required
      Lenders or (ii) the termination of any Delayed Draw Term Loan Commitment or
      the
      acceleration of any Obligation pursuant to Section 11.2 ,
      shall
      apply all payments in respect of any Obligation, and all proceeds of Collateral (A) first ,
      to pay
      Obligations in respect of any cost or expense reimbursements, fees or
      indemnities then due to Administrative Agent ,
      (B) second ,
      to pay
      Obligations in respect of any cost or expense reimbursements, fees or
      indemnities then due to the Lenders ,
      (C) third ,
      to pay
      interest then due and payable in respect of the Loans ,
      (D) fourth ,
      to
      repay the outstanding principal amounts of the Loans (E) fifth ,
      to the
      ratable payment of all other Obligations .




(d)  Application
      of Payments Generally .
      If
      sufficient amounts are not available to repay all outstanding Obligations
      described in any priority level set forth in this Section 2.10 ,
      the
      available amounts shall be applied, unless otherwise expressly specified herein,
      to such Obligations ratably based on the proportion of the Secured Parties’
interest in such Obligations. Any priority level set forth in this Section 2.10 that
      includes interest shall include all such interest, whether or not accruing
      after
      the filing of any petition in bankruptcy or the commencement of any insolvency,
      reorganization or similar proceeding, and whether or not a claim for post-filing
      or post-petition interest is allowed in any such proceeding.




Section
      2.11  Evidence
      of Debt .




(a)  Records
      of Lenders .
      Each
      Lender shall maintain in accordance with its usual practice accounts evidencing
      Indebtedness of Borrowers to such Lender resulting from each Loan of such Lender
      from time to time, including the amounts of principal and interest payable
      and
      paid to such Lender from time to time under this Agreement. In addition, each
      Lender having sold a participation in any of its Obligations or having
      identified an SPV as such to Administrative Agent, acting as agent of Borrowers
      solely for this purpose and solely for tax purposes, shall establish and
      maintain at its address referred to in Section 13.11 (or at
      such other address as such Lender shall notify Borrowers) a record of ownership,
      in which such Lender shall register by book entry (i) the name and address
      of
      each such participant and SPV (and each change thereto, whether by assignment
      or
      otherwise) and (ii) the rights, interest or obligation of each such
      participant and SPV in any Obligation, in any Delayed Draw Term Loan Commitment
      and in any right to receive any payment hereunder.




(b)  Records
      of Administrative Agent .
      Administrative Agent, acting as agent of Borrowers solely for tax purposes
      and
      solely with respect to the actions described in this Section 2.11 ,
      shall
      establish and maintain at its address referred to in Section 13.11 (or at
      such other address as Administrative Agent may notify Borrowers) (i) a record
      of
      ownership (the “ Register ”)
      in
      which Administrative Agent agrees to register by book entry the interests
      (including any rights to receive payment hereunder) of Administrative Agent,
      each Lender in the Delayed Draw Term Loans, each of their obligations under
      this
      Agreement to participate in each Loan, and any assignment of any such interest,
      obligation or right and (ii) accounts in the Register in accordance with
      its usual practice in which it shall record (A) the names and addresses of
      the
      Lenders (and each change thereto pursuant to Section 13.2 ),
      (B)
      the Delayed Draw Term Loan Commitments of each Lender, (C) the amount of
      each Loan and each funding of any participation described in clause
      (i) above,
      (D) the amount of any principal or interest due and payable or paid and (E)
      any other payment received by Administrative Agent from Borrowers and its
      application to the Obligations.


18




(c)  Registered
      Obligations .
      Notwithstanding anything to the contrary contained in this Agreement, the Loans
      (including any Notes evidencing such Loans) are registered obligations, the
      right, title and interest of the Lenders and their assignees in and to such
      Loans shall be transferable only upon notation of such transfer in the Register
      and no assignment thereof shall be effective until recorded therein. This Section 2.11 and Section 13.2 shall be
      construed so that the Loans are at all times maintained in “ registered
      form ”
within
      the meaning of Sections 163(f), 871(h)(2) and 881(c)(2) of the Code and any
      related regulations (and any successor provisions).




(d)  Prima
      Facie Evidence .
      The
      entries made in the Register and in the accounts maintained pursuant to clauses
      (a) and (b) above
      shall, to the extent permitted by applicable Requirements of Law, be prima
      facie
      evidence of the existence and amounts of the obligations recorded therein; provided , however ,
      that no
      error in such account and no failure of any Lender or Administrative Agent
      to
      maintain any such account shall affect the obligations of any Credit Party
      to
      repay the Loans in accordance with their terms. In addition, the Credit Parties,
      Administrative Agent, the Lenders shall treat each Person whose name is recorded
      in the Register as a Lender, as applicable, for all purposes of this Agreement.
      Information contained in the Register with respect to any Lender shall be
      available for access by Borrowers, Administrative Agent, such Lender at any
      reasonable time and from time to time upon reasonable prior notice. No Lender
      shall, in such capacity, have access to or be otherwise permitted to review
      any
      information in the Register other than information with respect to such Lender
      unless otherwise agreed by Administrative Agent.




(e)  Notes .
      Upon
      any Lender’s request, each Borrower shall promptly execute and deliver Notes to
      such Lender evidencing the Loans of such Lender in the Delayed Draw Term Loan
      Facility and substantially in the form of Exhibit E ; provided , however ,
      that
      only one Note for the Delayed Draw Term Loan Facility shall be issued to each
      Lender, except (i) to an existing Lender exchanging an existing Note to reflect
      changes in the Register relating to such Lender, in which case the new Note
      delivered to such Lender shall be dated the date of the original Note and
      (ii) in the case of loss, destruction or mutilation of an existing Note and
      similar circumstances. Each
      Note, if issued, shall only be issued as means to evidence the right, title
      or
      interest of a Lender or a registered assignee in and to the related Loan, as
      set
      forth in the Register, and in no event shall any Note be considered a bearer
      instrument or obligation.




Section
      2.12  Breakage
      Costs; Increased Costs; Capital Requirements .




(a)  Breakage
      Costs .
      Borrowers shall compensate each Lender, upon demand from such Lender to
      Borrowers (with a copy to Administrative Agent), for all Liabilities (including,
      in each case, those reasonably incurred by reason of the liquidation or
      reemployment of deposits or other funds acquired by such Lender to prepare
      to
      fund, to fund or to maintain the Eurodollar Rate Loans of such Lender to
      Borrowers but excluding any loss of the Applicable Margin on the relevant Loans)
      that such Lender may reasonably incur (i) to the extent, for any reason, a
      proposed Delayed Draw Term Loan, conversion into or continuation of Eurodollar
      Rate Loans does not occur on a date specified therefor in a Notice of Delayed
      Draw Term Loan or a Notice of Conversion or Continuation, (ii) to the
      extent any Eurodollar Rate Loan is paid (whether through a scheduled, optional
      or mandatory prepayment) or converted to a Base Rate Loan (including because
      of Section 2.14 )
      on a
      date that is not the last day of the applicable Interest Period or (iii) as
      a consequence of any failure by Borrowers to repay Eurodollar Rate Loans when
      required by the terms hereof. For purposes of this clause
      (a) ,
      each
      Lender shall be deemed to have funded each Eurodollar Rate Loan made by it
      using
      a matching deposit or other borrowing in the London interbank
      market.




(b)  Increased
      Costs .
      If at
      any time any Lender determines that, after the date hereof, the adoption of,
      or
      any change in or in the interpretation, application or administration of, or
      compliance with, any Requirement of Law (other than any imposition or increase
      of Eurodollar Reserve Requirements) from any Governmental Authority shall have
      the effect of (i) increasing the cost to such Lender of making, funding or
      maintaining any Eurodollar Rate Loan or to agree to do so or of participating,
      or agreeing to participate, in extensions of credit or (ii) imposing any other
      cost to such Lender with respect to compliance with its obligations under any
      Loan Document, then, upon demand by such Lender (with a copy to Administrative
      Agent), Borrowers shall pay to such Lender amounts sufficient to compensate
      such
      Lender for such increased cost .


19




(c)  Increased
      Capital Requirements .
      If at
      any time any Lender determines that, after the date hereof, the adoption of,
      or
      any change in or in the interpretation, application or administration of, or
      compliance with, any Requirement of Law (other than any imposition or increase
      of Eurodollar Reserve Requirements) from any Governmental Authority regarding
      capital adequacy, reserves, special deposits, compulsory loans, insurance
      charges against property of, deposits with or for the account of, Obligations
      owing to, or other credit extended or participated in by, such Lender or any
      similar requirement (in each case other than any imposition or increase of
      Eurodollar Reserve Requirements) shall 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 its obligations under or with respect to any Loan
      Document to a level below that which, taking into account the capital adequacy
      policies of such Lender or corporation, such Lender or corporation could have
      achieved but for such adoption or change, then, upon demand from time to time
      by
      such Lender (with a copy to Administrative Agent), Borrowers shall pay to such
      Lender or corporation amounts sufficient to compensate such Lender or
      corporation for such reduction.




(d)  Compensation
      Certificate .
      Each
      demand for compensation under this Section 2.12 shall be
      accompanied by a certificate of the Lender claiming such compensation, setting
      forth the amounts to be paid hereunder, which certificate shall be conclusive,
      binding and final for all purposes, absent manifest error. In determining such
      amount, such Lender may use any reasonable averaging and attribution methods.
      Notwithstanding the foregoing in this Section 2.12 ,
      no
      Credit Party shall be required to compensate any Lender pursuant to this Section 2.12 for any
      amount incurred more than 180 days prior to the delivery of such certificate; provided , however ,
      that
      such period shall be extended in the case of a reduction caused by any event
      having retroactive effect to include the period of such retroactive effect.




Section
      2.13  Taxes .




(a)  Payments
      Free and Clear of Taxes .
      Except
      as otherwise provided in this Section 2.13 ,
      each
      payment by any Credit Party under any Loan Document shall be made free and
      clear
      of all present or future taxes, levies, imposts, deductions, charges or
      withholdings and all liabilities with respect thereto (and without deduction
      for
      any of them) (collectively, but excluding the taxes set forth in clauses
      (i) and (ii) below,
      the “ Taxes ”)
      other
      than for (i) taxes measured by net income (including branch profits taxes)
      and
      franchise taxes imposed in lieu of net income taxes, in each case imposed on
      any
      Secured Party as a result of a present or former connection between such Secured
      Party and the jurisdiction of the Governmental Authority imposing such tax
      or
      any political subdivision or taxing authority thereof or therein (other than
      such connection arising solely from any Secured Party having executed, delivered
      or performed its obligations or received a payment under, or enforced, any
      Loan
      Document) or (ii) taxes that are directly attributable to the failure (other
      than as a result of a change in any Requirement of Law) by any Secured Party
      to
      deliver the documentation required to be delivered pursuant to clause
      (f) below.




(b)  Gross-Up .
      If any
      Taxes shall be required by law to be deducted from or in respect of any amount
      payable under any Loan Document to any Secured Party (i) such amount shall
      be
      increased as necessary to ensure that, after all required deductions for Taxes
      are made (including deductions applicable to any increases to any amount under
      this Section 2.13 ),
      such
      Secured Party receives the amount it would have received had no such deductions
      been made, (ii) the relevant Credit Party shall make such deductions, (iii)
      the
      relevant Credit Party shall timely pay the full amount deducted to the relevant
      taxing authority or other authority in accordance with applicable Requirements
      of Law and (iv) within 30 days after such payment is made, the relevant
      Credit Party shall deliver to Administrative Agent an original or certified
      copy
      of a receipt evidencing such payment; provided , however ,
      that no
      such increase shall be made with respect to, and no Credit Party shall be
      required to indemnify any such Secured Party pursuant to clause
      (d) below **** for,
      withholding taxes to the extent that the obligation to withhold amounts existed
      on the date that such Secured Party became a “Secured Party” under this
      Agreement in the capacity under which such Secured Party makes a claim under
      this clause
      (b) ,
      except
      in each case to the extent such Secured Party is a direct or indirect assignee
      of any other Secured Party that was entitled, at the time the assignment of
      such
      other Secured Party became effective, to receive additional amounts under this clause
      (b) .




(c)  Other
      Taxes .
      In
      addition, Borrowers jointly and severally agree to pay, and each Borrower
      authorizes Administrative Agent to pay in its name, any stamp, documentary,
      excise or property tax, charges or similar levies imposed by any applicable
      Requirement of Law or Governmental Authority and all Liabilities with respect
      thereto (including by reason of any delay in payment thereof), in each case
      arising from the execution, delivery or registration of, or otherwise with
      respect to, any Loan Document or any transaction contemplated therein
      (collectively, “ Other
      Taxes ”).
      Within 30 days after the date of any payment of Taxes or Other Taxes by any
      Credit Party, Borrowers shall furnish to Administrative Agent, at its address
      referred to in Section 13.11 ,
      the
      original or a certified copy of a receipt evidencing payment
      thereof.


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(d)  Indemnification .
      Borrowers shall jointly and severally reimburse and indemnify, within 30 days
      after receipt of demand therefor (with copy to Administrative Agent), each
      Secured Party for all Taxes and Other Taxes (including any Taxes and Other
      Taxes
      imposed by any jurisdiction on amounts payable under this Section 2.13 )
      paid by
      such Secured Party and any Liabilities arising therefrom or with respect
      thereto, whether or not such Taxes or Other Taxes were correctly or legally
      asserted .
      A
      certificate of the Secured Party (or of Administrative Agent on behalf of such
      Secured Party) claiming any compensation under this clause
      (d) ,
      setting
      forth the amounts to be paid thereunder and delivered to Borrowers with copy
      to
      Administrative Agent, shall be conclusive, binding and final for all purposes,
      absent manifest error. In determining such amount, Administrative Agent and
      such
      Secured Party may use any reasonable averaging and attribution
      methods.




(e)  Mitigation .
      Any
      Lender claiming any additional amounts payable pursuant to this Section 2.13 shall
      use its reasonable efforts (consistent with its internal policies and
      Requirements of Law) to change the jurisdiction of its lending office if such
      a
      change would reduce any such additional amounts (or any similar amount that
      may
      thereafter accrue) and would not, in the sole determination of such Lender,
      be
      otherwise disadvantageous to such Lender.




(f)  Tax
      Forms .
      (i)
      Each Non-U.S. Lender Party that, at any of the following times, is entitled
      to
      an exemption from United States withholding tax or, after a change in any
      Requirement of Law, is subject to such withholding tax at a reduced rate under
      an applicable tax treaty, shall (A) on or prior to the date such Non-U.S. Lender
      Party becomes a “Non-U.S. Lender Party” hereunder, (B) on or prior to the
      date on which any such form or certification expires or becomes obsolete, (C)
      after the occurrence of any event requiring a change in the most recent form
      or
      certification previously delivered by it pursuant to this clause (i) and (D)
      from time to time if requested by Borrowers or Administrative Agent (or, in
      the
      case of a participant or SPV, the relevant Lender), provide Administrative
      Agent
      and Borrowers (or, in the case of a participant or SPV, the relevant Lender)
      with 2 completed originals of each of the following, as applicable :
      (x)
      Forms W-8ECI (claiming exemption from U.S. withholding tax because the income
      is
      effectively connected with a U.S. trade or business), W-8BEN (claiming exemption
      from, or a reduction of, U.S. withholding tax under an income tax treaty) or
      any
      successor forms ,
      (y) in
      the case of a Non-U.S. Lender Party claiming exemption under Sections 871(h)
      or
      881(c) of the Code, Form W-8BEN (claiming exemption from U.S. withholding tax
      under the portfolio interest exemption) or any successor form and a
      certificate in form and substance acceptable to Administrative Agent that such
      Non-U.S. Lender Party is not (1) a “bank” within the meaning of Section
      881(c)(3)(A) of the Code, (2) a “10 percent shareholder” of any Borrower within
      the meaning of Section 881(c)(3)(B) of the Code or (3) a “controlled foreign
      corporation” described in Section 881(c)(3)(C) of the Code or (z) any other
      applicable document prescribed by the IRS certifying as to the entitlement
      of
      such Non-U.S. Lender Party to such exemption from United States withholding
      tax
      or reduced rate with respect to all payments to be made to such Non-U.S. Lender
      Party under the Loan Documents. Unless Borrowers and Administrative Agent have
      received forms or other documents satisfactory to them indicating that payments
      under any Loan Document to or for a Non-U.S. Lender Party are not subject to
      United States withholding tax or are subject to such tax at a rate reduced
      by an
      applicable tax treaty, the Credit Parties and Administrative Agent shall
      withhold amounts required to be withheld by applicable Requirements of Law
      from
      such payments at the applicable statutory rate.




(i)  Each
      U.S.
      Lender Party shall (A) on or prior to the date such U.S. Lender Party becomes
      a
“U.S. Lender Party” hereunder, (B) on or prior to the date on which any such
      form or certification expires or becomes obsolete, (C) after the occurrence
      of
      any event requiring a change in the most recent form or certification previously
      delivered by it pursuant to this clause
      (f) and (D)
      from time to time if requested by Borrowers or Administrative Agent (or, in
      the
      case of a participant or SPV, the relevant Lender), provide Administrative
      Agent
      and Borrowers (or, in the case of a participant or SPV, the relevant Lender)
      with two completed originals of Form W-9 (certifying that such U.S. Lender
      Party
      is entitled to an exemption from U.S. backup withholding tax) or any successor
      form.


21


(ii)  Each
      Lender having sold a participation in any of its Obligations or identified
      an
      SPV as such to Administrative Agent] shall collect from such participant or
      SPV
      the documents described in this clause
      (f) and
      provide them to Administrative Agent.




Section
      2.14  Suspension
      of Eurodollar Rate Option .
      Notwithstanding any provision to the contrary in this Article II ,
      the
      following shall apply:




(a)  Interest
      Rate Unascertainable, Inadequate or Unfair .
      In the
      event that (i) Administrative Agent determines that adequate and fair means
      do
      not exist for ascertaining the applicable interest rates by reference to which
      the Eurodollar Rate is determined or (ii) the Required Lenders notify
      Administrative Agent that the Eurodollar Rate for any Interest Period will
      not
      adequately reflect the cost to the Lenders of making or maintaining such Loans
      for such Interest Period, Administrative Agent shall promptly so notify
      Borrowers, whereupon the obligation of each Lender to make or to continue
      Eurodollar Rate Loans shall be suspended as provided in clause
      (c) below
      until Administrative Agent shall notify Borrowers that the Required Lenders
      have
      determined that the circumstances causing such suspension no longer
      exist.




(b)  Illegality .
      If any
      Lender determines that the introduction of, or any change in or in the
      interpretation of, any Requirement of Law after the date of this Agreement
      shall
      make it unlawful, or any Governmental Authority shall assert that it is
      unlawful, for such Lender or its applicable lending office to make Eurodollar
      Rate Loans or to continue to fund or maintain Eurodollar Rate Loans, then,
      on
      notice thereof and demand therefor by such Lender to Borrowers, through
      Administrative Agent, the obligation of such Lender to make or to continue
      Eurodollar Rate Loans shall be suspended as provided in clause
      (c) below
      until such Lender shall notify Borrowers, through Administrative Agent, that
      it
      has determined that it may lawfully make Eurodollar Rate Loans.




(c)  Effect
      of Suspension .
      If the
      obligation of any Lender to make or to continue Eurodollar Rate Loans is
      suspended, (i) the obligation of such Lender to convert Base Rate Loans into
      Eurodollar Rate Loans shall be suspended, (ii) such Lender shall make a Base
      Rate Loan at any time such Lender would otherwise be obligated to make a
      Eurodollar Rate Loan, (iii) Borrowers may revoke any pending Notice of Delayed
      Draw Term Loan or Notice of Conversion or Continuation to make or continue
      any
      Eurodollar Rate Loan or to convert any Base Rate Loan into a Eurodollar Rate
      Loan and (iv) each Eurodollar Rate Loan of such Lender shall automatically
      and
      immediately (or, in the case of any suspension pursuant to clause
      (a) above,
      on the last day of the current Interest Period thereof) be converted into a
      Base
      Rate Loan.




Section
      2.15  Joint
      and Several Liability of Borrowers




(a)  Each
      Borrower hereby, jointly and severally, absolutely, unconditionally and
      irrevocably accepts, not merely as a surety but also as a co-debtor, joint
      and
      several liability under this Agreement and the other Loan Documents in
      consideration of the financial accommodations provided by or to be provided
      by
      the Lenders with respect to the payment and performance of all of the
      Obligations.




(b)  Any
      term
      or provision of this Agreement or any other Loan Document to the contrary
      notwithstanding, the maximum aggregate amount for which any Borrower shall
      be
      liable hereunder shall not exceed the maximum amount for which such Borrower
      can
      be liable without rendering any payments, as it relates to such Borrower,
      subject to avoidance under applicable Requirements of Law relating to fraudulent
      conveyance or fraudulent transfer (including the Uniform Fraudulent Conveyance
      Act, the Uniform Fraudulent Transfer Act and Section 548 of Title 11 of the
      United States Code or any applicable provisions of comparable Requirements
      of
      Law) (collectively, “ Fraudulent
      Transfer Laws ”).  Any
      analysis of the
      provisions of this Agreement for purposes of Fraudulent Transfer Laws
      shall take
      into account the right of contribution established in clause
      (c) below
      and, for purposes of such analysis, give effect to any discharge of intercompany
      debt as a result of any payment made under the Agreement.




(c)  To
      the
      extent that any Borrower shall be required hereunder to pay any portion of
      the
      Obligations exceeding the greater of (a) the amount of the economic benefit
      actually received by such Borrower from the Loans and other Obligations and
      (b)
      the amount such Borrower would otherwise have paid if such Borrower had paid
      the
      aggregate amount of the Obligations (excluding the amount thereof repaid by
      any
      other Borrower or Parent) in the same proportion as such Borrower’s net worth on
      the date enforcement is sought hereunder bears to the aggregate net worth of
      all
      the Borrowers on such date, then such Borrower shall be reimbursed by such
      other
      Borrower for the amount of such excess, pro rata, based on the respective net
      worth of such other Borrower on such date.


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(d)  To
      the
      maximum extent permitted by Requirements of Law, each Borrower hereby waives
      and
      agrees not to assert any defense, whether arising in connection with or in
      respect of any of the following or otherwise, and hereby agrees that its
      obligations under this Agreement are irrevocable, absolute and unconditional
      and
      shall not be discharged as a result of or otherwise affected by any of the
      following (which may not be pleaded and evidence of which may not be introduced
      in any proceeding with respect to this Agreement, in each case except as
      otherwise agreed in writing by the Administrative Agent):




(i)  the
      invalidity or unenforceability of any obligation of any other Borrower under
      any
      Loan Document or any other agreement or instrument relating thereto (including
      any amendment, consent or waiver thereto), or any security for, or other
      guaranty of, any Obligation or any part thereof, or the lack of perfection
      or
      continuing perfection or failure of priority of any security for the Obligations
      or any part thereof;




(ii)  the
      absence of (A) any attempt to collect any Obligation or any part thereof from
      any other Borrower or other action to enforce the same or (B) any action to
      enforce any Loan Document or any Lien thereunder;




(iii)  the
      failure by any Person to take any steps to perfect and maintain any Lien on,
      or
      to preserve any rights with respect to, any Collateral;




(iv)  any
      workout, insolvency, bankruptcy proceeding, reorganization, arrangement,
      liquidation or dissolution by or against any other Borrower, Parent or any
      Borrower’s Subsidiaries or any procedure, agreement, order, stipulation,
      election, action or omission thereunder, including any discharge or disallowance
      of, or bar or stay against collecting, any Obligation (or any interest thereon)
      in or as a result of any such proceeding;




(v)  any
      foreclosure, whether or not through judicial sale, and any other Sale of any
      Collateral or any election following the occurrence of an Event of Default
      by
      any Secured Party to proceed separately against any Collateral in accordance
      with such Secured Party’s rights under any applicable Requirement of Law;
      or




(vi)  any
      other
      defense, setoff, counterclaim or any other circumstance that might otherwise
      constitute a legal or equitable discharge of any other Borrower, Parent or
      any
      of any Borrower’s Subsidiaries, in each case other than the payment in full of
      the Obligations.




(e)  Each
      Borrower hereby unconditionally and irrevocably waives, to the maximum extent
      permitted by Requirements of Law, and agrees not to assert any claim, defense
      (other than payment in full), setoff or counterclaim based on diligence,
      promptness, presentment, requirements for any demand or notice
      hereunder including any of the following: (i) any demand for payment or
      performance and protest and notice of protest, (ii) any notice of acceptance,
      (iii) any presentment, demand, protest or further notice or other requirements
      of any kind with respect to any Obligation (including any accrued but unpaid
      interest thereon) becoming immediately due and payable and (iv) any other notice
      in respect of any Obligation or any part thereof, and any defense arising by
      reason of any disability or other defense of any other Borrower or Parent.
      Each
      Borrower further unconditionally and irrevocably agrees not to (x) enforce
      or
      otherwise exercise any right of subrogation or any right of reimbursement or
      contribution or similar right against any other Borrower or Parent by reason
      of
      any Loan Document or any payment made thereunder or (y) assert any claim,
      defense (other than payment in full), setoff or counterclaim it may have against
      any other Credit Party or set off any of its obligations to such other Credit
      Party against obligations of such Credit Party to such Borrower. No obligation
      of any Borrower hereunder shall be discharged other than by complete
      performance.


23




(f)  Each
      Borrower hereby assumes responsibility for keeping itself informed of the
      financial condition of each other Borrower, Parent and any other guarantor,
      maker or endorser of any Obligation or any part thereof, and of all other
      circumstances bearing upon the risk of nonpayment of any Obligation or any
      part
      thereof that diligent inquiry would reveal, and each Borrower hereby agrees
      that
      no Secured Party shall have any duty to advise any Borrower of information
      known
      to it regarding such condition or any such circumstances. In the event any
      Secured Party, in its sole discretion, undertakes at any time or from time
      to
      time to provide any such information to any Borrower, such Secured Party shall
      be under no obligation to (i) undertake any investigation not a part of its
      regular business routine, (ii) disclose any information that such Secured
      Party, pursuant to accepted or reasonable commercial finance or banking
      practices, wishes to maintain confidential or (iii) make any future
      disclosures of such information or any other information to any
      Borrower.




ARTICLE
      III




CONDITIONS
      PRECEDENT




Section
      3.1  Conditions
      to the Initial Loans .
      No
      Lender shall be obligated to make any of the Loans or to perform any other
      action hereunder until the following conditions have been satisfied in a manner
      satisfactory to Administrative Agent in its sole discretion, or waived in
      writing by the Required Lenders (and in no event later than June 30,
      2008):




(a)  Certain
      Documentation .
      Administrative Agent shall have received the following, each dated as of the
      Closing Date and in form and substance satisfactory to Administrative Agent
      and
      its counsel:




(i)  this
      Agreement, duly executed by Borrowers, Parent and each Lender;




(ii)  for
      the
      account of each Lender which has requested the same by notice to Administrative
      Agent at least 3 Business Days prior to the Closing Date (or such later date
      as
      maybe agreed by Administrative Agent), a Note conforming to the requirements
      set
      forth in Section 2.11(e) ;




(iii)  duly
      executed originals of the Guaranty and Pledge Agreement;




(iv)  duly
      executed originals of the Chula Vista Assignment of Purchase
      Agreement;




(v)  duly
      executed originals of the Escondido Assignment of Purchase
      Agreement;




(vi)  duly
      executed originals of the Chula Vista Seller Acknowledgment of
      Assignment;




(vii)  duly
      executed originals of the Escondido Seller Acknowledgement of
      Assignment;




(viii)  acknowledgement
      copies of proper financing statements (Form UCC-l) duly filed under the UCC
      in
      all jurisdictions as may be necessary or, in the opinion of Administrative
      Agent, desirable to perfect Administrative Agent’s Lien, for the benefit of
      itself and the Lenders, on the Collateral;




(ix)  certified
      copies of UCC searches, or other evidence satisfactory to Administrative Agent,
      listing all effective financing statements which name a Borrower or any other
      Credit Party (under present name, any previous name or any trade or doing
      business name) as debtor and covering all jurisdictions referred to in clause
      (viii) above,
      together with copies of such other financing statements;


24




(x)  evidence
      of the completion of all other recordings and filings (including UCC-3
      termination statements and other Lien release documentation) as may be necessary
      or, in the opinion of and at the request of Administrative Agent, desirable
      to
      perfect Administrative Agent’s Lien, for the benefit of itself and the Lenders,
      on the Collateral and ensure such Collateral is free and clear of other
      Liens;




(xi)  a
      Power
      of Attorney duly executed by each Borrower; and




(xii)  duly
      executed originals of the Fee Letter.




(b)  [Intentionally
      Omitted]




(c)  Insurance .
      Administrative Agent shall have received evidence satisfactory to it that the
      insurance policies provided for in Section 7.5(a) are in
      full force and effect.




(d)  Purchase
      Agreements .




(i)  Administrative
      Agent shall have received executed
      copies of each Purchase Agreement (including all exhibits, annexes, schedules,
      and attachments referred to therein or delivered pursuant thereto) in effect
      on
      the Closing Date in form and substance satisfactory to Administrative Agent,
      certified by an authorized officer of each Borrower party thereto as true,
      correct and complete copies thereof; and




(ii)  Administrative
      Agent shall have received a certificate from the Chief Financial Officer of each Borrower certifying that
      (A) each of the representations and warranties of such Borrower and, to the
      knowledge of such Borrower, each of the representations and warranties of
      Seller, contained in the Purchase Agreement to which such Borrower is a party
      is
      true, correct and complete in all material respects (except to the extent such
      representation or warranty is qualified by materiality, in which event, it
      is
      true, correct and complete in all respects) and (B) to the best knowledge of
      such Borrower, no Person party to such Purchase Agreement is in default in
      the
      performance or compliance with any of the material terms or provisions of,
      or
      otherwise has a right to terminate for cause, such Purchase
      Agreement.




(e)  Legal
      Opinion .
      Administrative Agent shall have received a opinion of DLA Piper US LLP, outside
      counsel to Borrowers and the other Credit Parties, with respect to the Loan
      Documents in form and substance satisfactory to Administrative Agent and its
      counsel.




(f)  Certified
      Constituent Documents .
      Administrative Agent shall have received a copy of each Constituent Document
      of
      each Credit Party that is on file with any Governmental Authority in any
      jurisdiction, certified as of a recent date by such Governmental Authority,
      together with, if applicable, certificates attesting to the good standing of
      such Credit Party in such jurisdiction and each other jurisdiction where such
      Credit Party is qualified to do business as a foreign entity or where such
      qualification is necessary (and, if appropriate in any such jurisdiction,
      related tax certificates) .




(g)  Secretary’s
      Certificate .
      Administrative Agent shall have received a certificate of the secretary or
      other
      officer of each Credit Party in charge of maintaining books and records of
      such
      Credit Party in substantially the form of Exhibit B hereto.




(h)  Officer’s
      Certificate .
      A
      certificate of an authorized officer of each Borrower stating that (a) each
      condition set forth in Section 3.1 has been
      satisfied, (b) since December 31, 2007, no event or condition has occurred
      or is existing which could reasonably be expected to have a Material Adverse
      Effect, (c) no Litigation has been commenced which, if successful, would
      have a Material Adverse Effect or could challenge any of the transactions
      contemplated by the Agreement and the other Loan Documents to be executed on
      or
      about the Closing Date; and (d) attached thereto is a complete and correct
      copy
      of each Purchase Agreement.


25




(i)  Equipment
      Purchase Price .
      (i) The
      purchase price under the Chula Vista Purchase Agreement for the Chula Vista
      Equipment shall not exceed $31,500,000, and (ii) the purchase price under
      the Escondido Purchase Agreement for the Escondido Equipment shall not exceed
      $15,500,000.




(j)  Other
      Documents .
      Administrative Agent shall have received such other documents, instruments,
      or
      certificates as it or any Lender shall reasonably request.




Section
      3.2  Further
      Conditions to the Loans .
      The
      obligation of each Lender on any date (including the Closing Date) to make
      any
      Loan is subject to the satisfaction of each of the following conditions
      precedent:




(a)  Request .
      Administrative Agent shall have received, to the extent required by Article II ,
      a
      written, timely and duly executed and completed Notice of Delayed Draw Term
      Loan.




(b)  Representations
      and Warranties; No Defaults .
      The
      following statements shall be true on such date, before and after giving effect
      to such Loan :
      (i) the
      representations and warranties set forth in any Loan Document shall be true
      and
      correct (A) if such date is the Closing Date, on and as of such date and
      (B) otherwise, in all material respects on and as of such date or, to the
      extent such representations and warranties expressly relate to an earlier date,
      on and as of such earlier date and (ii) no
      Default shall be continuing.




(c)  Equity
      Contributions .




(i)  In
      the
      case of a borrowing by the Chula Vista Borrower, the Chula Vista Equity
      Contribution shall have been made and the Administrative Agent shall have
      received satisfactory evidence that the Chula Vista Borrower has paid to the
      Seller and the Seller has received the proceeds of the Chula Vista Equity
      Contribution in payment of a portion of the purchase price of the Chula Vista
      Equipment under the Chula Vista Purchase Agreement; or




(ii)  In
      the
      case of a borrowing by the Escondido Borrower, the Escondido Equity Contribution
      shall have been made and the Administrative Agent shall have received
      satisfactory evidence that the Escondido Borrower has paid to the Seller and
      the
      Seller has received the proceeds of the Escondido Equity Contribution in payment
      of a portion of the purchase price of the Escondido Equipment under the
      Escondido Purchase Agreement.




(d)  Additional
      Matters .
      Administrative Agent shall have received such additional documents and
      information as any Lender, through Administrative Agent, may reasonably
      request.




The
      representations and warranties set forth in any Notice of Delayed Draw Term
      Loan
      (or any certificate delivered in connection therewith) shall be deemed to be
      made again on and as of the date of the relevant Loan and the acceptance of
      the
      proceeds thereof.




ARTICLE
      IV




REPRESENTATIONS
      AND WARRANTIES




To
      induce
      the Lenders and Administrative Agent to enter into the Loan Documents, each
      Borrower and Parent represents and warrants to each of them each of the
      following on and as of the Closing Date and each other date applicable pursuant
      to Section 3.2 :




Section
      4.1  Corporate
      Existence; Compliance with Law .
      Each
      Borrower is: (a) duly organized, validly existing and in good standing under
      the
      laws of the jurisdiction of its incorporation or organization, (b) duly
      qualified to do business as a foreign entity and in good standing in each other
      jurisdiction where its ownership or lease of property or the conduct of its
      business requires such qualification, except where the failure to be so
      qualified could not reasonably be expected to have a Material Adverse Effect
      and
      (c) in compliance in all material respects with all Requirements of Law
      (including Environmental Laws) and Contractual Obligations.




26




Section
      4.2  Legal
      Authority to Conduct Business .
      Each
      Borrower has: (a) the requisite corporate power and authority and the legal
      right to execute, deliver and perform its obligations under the Loan Documents,
      and to own, pledge, mortgage or otherwise encumber and operate its properties,
      to lease the property it operates under lease and to conduct its business as
      now, heretofore or proposed to be conducted and (b) all Permits, consents or
      approvals from or by all Persons or Governmental Authorities having jurisdiction
      over such Borrower that are necessary or appropriate for the conduct of its
      business.




Section
      4.3  Locations;
      Corporate or Other Names, Etc. Set
      forth on Schedule 4.3 is (a)
      each Borrower’s name as it appears in official filings in the state of its
      organization and the organizational identification number issued by each
      Borrower’s state of organization or a statement that no such number has been
      issued, (b) each Borrower’s state of organization and (c) the location of each
      Borrower’s chief executive office, corporate offices, warehouses, other
      locations of Collateral and locations where records with respect to Collateral
      are kept (including in each case the county of such locations) and, except
      as
      set forth in such Schedule, such locations have not changed during the preceding
      twelve months. As of the Closing Date, during the prior five years, except
      as
      set forth in Schedule 4.3 ,
      each
      Borrower has not been known as or conducted business in any other name
      (including trade names).




Section
      4.4  Corporate
      Power; Authorization; No Conflicts. The
      execution, delivery and performance by each Borrower of the Loan Documents
      to
      which it is a party, and the creation of all Liens provided for herein and
      therein: (a) are within such Borrower’s power and authority, (b) have been
      duly authorized by all necessary corporate or similar action on the part of
      such
      Borrower, (c) are not in violation of its Constituent Documents, any Contractual
      Obligation of such Borrower or any Requirement of Law, (d) do not result in
      the
      creation or imposition of any Lien (other than Permitted Liens) upon any of
      the
      Collateral and (e) do not require the consent or approval of any Governmental
      Authority or any other Person.




Section
      4.5  Execution
      and Enforceability .
      Each
      Loan Document to which any Borrower is a party has been duly executed and
      delivered by or on behalf of such Borrower, and each such Loan Document is
      a
      legal, valid and binding obligation of such Borrower, enforceable against it
      in
      accordance with its terms, except as such enforcement may be limited by
      bankruptcy, insolvency and other similar laws affecting creditors’ rights
      generally.




Section
      4.6  Ventures,
      Subsidiaries and Affiliates; Outstanding Stock and Indebtedness .
      No
      Borrower has any Subsidiaries, is engaged in any joint venture or partnership
      with any other Person, or is an Affiliate of any other Person (other than Parent
      and its Subsidiaries). All of the issued and outstanding Stock of each Borrower
      (including all rights to purchase, options, warrants or similar rights or
      Contractual Obligations pursuant to which such Borrower may be required to
      issue, Sell, repurchase or redeem any of its Stock) is owned by Parent. No
      Borrower has any outstanding Indebtedness other than the Loans.




Section
      4.7  Material
      Adverse Change. Since
      December 31, 2007, no events have occurred that, alone or in the aggregate,
      have
      had or could reasonably be expected to have a Material Adverse
      Effect.




Section
      4.8  Solvency .
      Both
      before and after giving effect to (a) the Loans made on or prior to the date
      this representation and warranty is made, (b) the disbursement of the proceeds
      of such Loans and (c) the payment and accrual of all transaction costs in
      connection with the foregoing, and each Borrower is Solvent.




Section
      4.9  Litigation .
      No
      Litigation is pending or, to the knowledge of any Borrower, threatened by or
      against any Borrower or against any Borrower’s properties or
      revenues.




Section
      4.10  Taxes .
      Borrowers have not, and are not required to have filed, prior to the Closing
      Date, any federal, state, local and foreign income and franchise and other
      material tax returns, reports and statements (collectively, the “ Tax
      Returns ”)
      with
      any Governmental Authorities.


27


Section
      4.11  Government
      Regulation; Margin Regulations .
      Borrowers are not subject to or regulated under any federal or state statute,
      rule or regulation that restricts or limits any Person’s ability to incur
      Indebtedness, pledge its assets, or to perform its obligations under the Loan
      Documents. Borrowers are not engaged in the business of extending credit for
      the
      purpose of “purchasing” or “carrying” any “margin security” as such terms are
      defined in Regulation U of the Federal Reserve Board as now and hereafter in
      effect (such securities being referred to herein as “ Margin
      Stock ”).
      Borrowers do not own any Margin Stock.




Section
      4.12  No
      Burdensome Obligations; No Defaults .
      No
      Requirement of Law or Contractual Obligation of any Borrower has or have had
      or
      could reasonably be expected to have a Material Adverse Effect. Neither Borrower
      is in default, and to Borrowers’ knowledge no third party is in default, under
      or with respect to any of its Contractual Obligations.




Section
      4.13  ERISA .
      Borrowers have no Title IV Plans, Multiemployer Plans or other Benefit
      Plans.




Section
      4.14  Intellectual
      Property .
      As of
      the Closing Date, Borrowers do not own or use any material Intellectual
      Property. To each Borrower’s knowledge, the conduct and operations of its
      businesses does not infringe, misappropriate, dilute, violate or otherwise
      impair any Intellectual Property owned by any other Person.




Section
      4.15  Title;
      Real Property .
      Each
      Borrower owns all personal property, in each case that is purported to be owned
      or leased by it and none of such property is subject to any Lien except
      Permitted Liens. Borrowers do not own or lease any real property.




Section
      4.16  Full
      Disclosure .
      No
      information contained in any Loan Document, or any written statement furnished
      by or on behalf of any Credit Party under any Loan Document or to induce any
      Lender or Administrative Agent to execute the Loan Documents contains any untrue
      statement of a material fact or omits to state a material fact necessary to
      make
      the statements contained herein or therein not materially misleading in light
      of
      the circumstances under which they were made; provided , that the
      foregoing shall not apply to any projections or forecasts provided by any Credit
      Party after the date upon which it was provided to Administrative Agent or
      any
      Lender.




Section
      4.17  Insurance .
      As of
      the Closing Date, Schedule 4.17 lists
      all insurance of any nature required to be maintained pursuant to Section
      7.5(b) for
      current occurrences by each Borrower, as well as a detailed summary of the
      terms
      and conditions of such insurance.




Section
      4.18  Bank
      and Security Accounts . Schedule 4.18 lists
      all banks and other financial institutions at which each Borrower maintains
      deposits and/or bank, security or other accounts, and such
      Schedule correctly identifies the name, address and telephone number of
      each such financial institution, the name in which the account is held, a
      description of the purpose of the account, and the complete account
      number.




Section
      4.19  Status
      of Borrowers .




(a)  Neither
      Borrower has conducted any business or incurred any Indebtedness, Contractual
      Obligations or other obligations or purchased or acquired any property or assets
      other than (i) its rights and obligations under the Purchase Agreement to which
      such Borrower is a party, (ii) the purchase and ownership of the Equipment
      pursuant to such Purchase Agreement, and (iii) in connection with its
      formation, and in each case, activities directly related thereto;
      and




(b)  The
      only
      member of each of the Borrowers is the Parent. Borrowers have no Subsidiaries
      and do not own any equity interest in, or otherwise own or control any Stock
      of
      or have any ownership interest in, any other Person.


28


Section
      4.20  Purchase
      Agreements .
      Borrowers have delivered to Administrative Agent complete and correct copies
      of
      each Purchase Agreement, including all schedules, attachments and exhibits
      thereto. The Purchase Agreements set forth the entire agreement and
      understanding of the parties thereto relating to the subject matter thereof,
      and
      there are no other agreements, arrangements or understandings, written or oral,
      relating to the matters covered thereby. The execution, delivery and performance
      of each of the Purchase Agreements has been duly authorized by all necessary
      action on the part of each party thereto. No authorization or approval or other
      action by, and no notice to filing with or license from, any Governmental
      Authority is required for the purchase and sale of the Equipment thereunder
      other than such as have been obtained on or prior to the Closing Date. As of
      the
      Closing Date, each of the representations and warranties of each Borrower and,
      to the knowledge of each Borrower, each of the representations and warranties
      of
      Seller, contained in each of the Purchase Agreements is true, correct and
      complete in all material respects (except to the extent such representation
      or
      warranty is qualified by materiality, in which event, it is true, correct and
      complete in all respects).




Section
      4.21  Brokers .
      No
      broker or finder acting on behalf of any Borrower or any other Credit Party
      brought about the obtaining, making or closing of the Agreement and the credit
      provided hereunder and neither Borrowers nor any Credit Party have any
      obligation to any Person in respect of any finder’s or brokerage fees in
      connection therewith.




Section
      4.22  Anti-Terrorism
      and Anti-Money Laundering .
      Each
      Borrower currently: (a) ensures that neither such Borrower nor any Person who
      owns a controlling interest in or otherwise controls such Borrower shall be
      (i)
      listed on the Specially Designated Nationals and Blocked Person List maintained
      by the Office of Foreign Assets Control (“ OFAC ”),
      Department of the Treasury, and/or any other similar lists maintained by OFAC
      pursuant to any authorizing statute, Executive Order or regulation or (ii)
      a
      person designated under Section 1(b), (c) or (d) of Executive Order No.
      13224 (September 23, 2001), any related enabling legislation or any other
      similar Executive Orders and (b) complies with all applicable Bank Secrecy
      Act
      (“ BSA ”)
      laws,
      regulations and government guidance on BSA compliance and on the prevention
      and
      detection of money laundering violations.




ARTICLE
      V





[ INTENTIONALLY
      OMITTED]





ARTICLE
      VI





REPORTING
      COVENANTS




From
      the
      Closing Date through the Termination Date, Borrowers jointly and severally
      agree
      as follows:




Section
      6.1  Financial
      Statements .
      Each
      Borrower shall deliver to Administrative Agent: ****




(a)  within
      45
      days following the end of each Fiscal Quarter, the unaudited Financial
      Statements for such Fiscal Quarter, accompanied by an officer’s certificate of
      the chief financial officer of such Borrower that such Financial Statements
      are
      complete and correct, that there was no Default (or specifying those Defaults
      of
      which he or she was aware).




(b)  within
      120 days following the close of each Fiscal Year, the unaudited Financial
      Statements for such Fiscal Year, which shall provide comparisons to the prior
      Fiscal Year, and shall be accompanied by an officer’s certificate of the chief
      financial officer of such Borrower that such Financial Statements are complete
      and correct, that there was no Default (or specifying those Defaults of which
      he
      or she was aware).




Section
      6.2  Other
      Events .
      Borrowers shall advise Administrative Agent promptly, in reasonable detail,
      in
      writing, upon becoming aware of:




(a)  Liens .
      Any
      Lien, other than a Permitted Lien, attaching to or asserted against any of
      the
      Collateral or any occurrence causing a material loss or decline in value of
      any
      Collateral and the estimated (or actual, if available) amount of such loss
      or
      decline.


29




(b)  Default;
      Equipment. The
      occurrence of any Default or other material event, including any damage,
      casualty or condemnation relating to the Equipment.




(c)  Litigation,
      Etc. The
      existence, threat or commencement of any Litigation against any Credit Party
      or
      any ERISA Affiliate or any allegation of criminal misconduct against any Credit
      Party.




Section
      6.3  Taxes .
      Borrowers shall give Administrative Agent notice of each of the following (which
      may be made by telephone if promptly confirmed in writing) promptly after any
      officer of any Credit Party knows or has reason to know of it: (a) the creation,
      or filing with the IRS or any other Governmental Authority, of any Contractual
      Obligation or other document extending, or having the effect of extending,
      the
      period for assessment or collection of any taxes with respect to Borrowers
      and
      (b) the creation of any Contractual Obligation of any Borrower, or the receipt
      of any request directed to any Borrower, to make any adjustment under
      Section 481(a) of the Code, by reason of a change in accounting method or
      otherwise.




Section
      6.4  Purchase
      Agreements .
      Borrowers shall deliver to Administrative Agent (i) promptly upon receipt
      copies of any notices, invoices or other documents received from Seller under
      or
      relating to any Purchase Agreement or relating to the Equipment and (ii)
      promptly upon delivery to Seller, copies of all notices or other documents
      delivered to Seller under any Purchase Agreement or relating to the
      Equipment.




Section
      6.5  Environmental
      Matters . Borrowers
      shall provide Administrative Agent notice of each of the
      receipt by any Borrower of any notice of violation of or potential liability
      or
      similar notice under Environmental Law .




Section
      6.6  Other
      Reports and Information .
      Borrowers shall, upon request of Administrative Agent, furnish to Administrative
      Agent such other reports and information in connection with the affairs,
      business, financial condition, operations, prospects or management of Borrowers
      or the Collateral as Administrative Agent (or any Lender through Administrative
      Agent) may request, all in reasonable detail.




ARTICLE
      VII





AFFIRMATIVE
      COVENANTS




Each
      Borrower hereby jointly and severally covenants and agrees that from the Closing
      Date until the Termination Date, such Borrower shall:




Section
      7.1  Maintenance
      of Corporate Existence . Preserve
      and maintain (a) its legal existence and good standing under the laws of the
      jurisdiction of its organization and (b) in all material respects its rights
      (charter and statutory), privileges franchises and Permits necessary in the
      conduct of its business.




Section
      7.2  Compliance
      with Laws, Etc. Comply
      in all material respects with all applicable Requirements of Law (including
      Environmental Laws), Contractual Obligations and Permits.




Section
      7.3  Payment
      of Obligations .
      Pay,
      discharge or otherwise satisfy at or before maturity or before they become
      delinquent, as the case may be, all of its Charges and other obligations of
      whatever nature, except where the amount or validity thereof is currently being
      contested in good faith by appropriate proceedings and reserves in conformity
      with GAAP with respect thereto have been provided on the books of such Borrower
      and none of the Collateral is or could reasonably be expected to become subject
      to any Lien or forfeiture or loss as a result of such contest.




Section
      7.4  Maintenance
      of Property and Equipment .
      (a ) Maintain
      and preserve (i) on and after the date of delivery of any Equipment by Seller
      to
      such Borrower, in all respects in good working order and condition the Equipment
      and all of its other properties and assets, (ii) all other of its property
      necessary in the conduct of its business and (iii) all material rights, permits,
      licenses, approvals and privileges (including all Permits) necessary, used
      or
      useful, whether because of its ownership, lease, sublease or other operation
      or
      occupation of property or other conduct of its business, and shall make all
      necessary or appropriate filings with, and give all required notices to,
      Government Authorities. Each Borrower shall also use and maintain the Equipment
      in accordance with any applicable manufacturer’s recommendations. Each Borrower
      shall make all alterations and modifications to the Equipment required to comply
      with any applicable law, rule or regulation. Each Borrower’s use of the
      Equipment shall be subject to any applicable manufacturer’s terms and conditions
      of sale, including any requirements regarding site preparation.


30




Section
      7.5  Maintenance
      of Insurance .
      (a )  Prior
      to
      the date of delivery of any Equipment by Seller to any Borrower, Borrowers
      shall
      cause the Seller to maintain in full force and effect all policies of insurance
      Seller is required to maintain under Article 22 of each of the Purchase
      Agreements. Each Borrower shall, at the request of Administrative Agent,
      exercise its right to request in writing pursuant to Article 22.4 of each of
      the
      Purchase Agreements that Seller furnish such Borrower with the certificates
      of
      insurances evidencing Seller’s compliance with the requirements set forth in
      Article 22.4 of each of the Purchase Agreements.




(b)  On
      and
      after the date of delivery of any Equipment by Seller to a Borrower, maintain
      or
      cause to be maintained in full force and effect insurance
      requirements in accordance with Schedule
      4.17 .




Section
      7.6  Keeping
      of Books .
      Keep
      proper Books and Records, in which full, true and correct entries shall be
      made
      in accordance with GAAP and all other applicable Requirements of Law of all
      financial transactions and the assets and business of such
      Borrower.




Section
      7.7  Access to
      Books and Property .
      With
      respect to each owned, leased, or controlled property, during normal business
      hours and upon reasonable advance notice (unless an Event of Default shall
      have
      occurred and be continuing, in which event no notice shall be required and
      Administrative Agent, the Lenders and any Related Person shall have access
      at
      any and all times): (a) provide access to such property to Administrative Agent
      and any of its Related Persons, as frequently as Administrative Agent determines
      to be appropriate and is reasonable in the circumstances, (b) permit
      Administrative Agent, the Lenders and any Related Person to inspect, audit
      and
      make extracts and copies (or take originals if reasonably necessary) from all
      of
      such Borrower’s Books and Records and (c) permit Administrative Agent, the
      Lenders and any Related Person to inspect, review, evaluate and make physical
      verifications and appraisals of the Equipment and any other Collateral in any
      manner and through any medium that such Person considers advisable, and such
      Borrower agree to render to such Person, at such Borrower’s cost and expense,
      such clerical and other assistance as may be reasonably requested with regard
      thereto.




Section
      7.8  Use
      of
      Proceeds .
      Use the
      proceeds of the Loans solely to (a) pay a portion of the purchase price to
      the Seller for the relevant Equipment pursuant to the applicable Purchase
      Agreement or (b) repay Parent Advances, the proceeds of which have been
      used by the applicable Borrower solely to pay a portion of the purchase price
      to
      the Seller for the relevant Equipment pursuant to the applicable Purchase
      Agreement, other than the initial 45% of such purchase price (which amount
      is
      required to be funded with the Chula Vista Equity Contribution or Escondido
      Equity Contribution, as applicable, and not Parent Advances).




Section
      7.9  Further
      Assurances .
      At any
      time and from time to time, upon the written request of Administrative Agent
      and
      at the sole expense of such Borrower, promptly and duly execute and deliver
      any
      and all such further instruments and documents and take such further action
      as
      Administrative Agent may reasonably deem necessary or advisable (a) to obtain
      the full benefits of this Agreement and the other Loan Documents, (b) to
      protect, preserve, maintain and enforce Administrative Agent’s rights in (and
      the priority of Administrative Agent’s Lien on) any Collateral or (c) to enable
      Administrative Agent and each Lender to exercise all or any of the rights,
      remedies and powers granted herein or in any other Loan Document.




Section
      7.10  Landlord
      Waiver, Consent and Access Agreements .
      In
      accordance with Section
      3.1 of this
      Agreement and prior to such Borrower taking delivery or possession of any of
      the
      Equipment, obtain a landlord waiver, consent and access agreement from the
      lessor of each leased property or mortgage of any owned property with respect
      to
      each location where the Collateral and/or Books and Records are stored or
      located, including the lessor of each of the properties on which the respective
      Projects are located, which agreements shall be reasonably satisfactory in
      form
      and substance to Administrative Agent.


31




Section
      7.11  OFAC .
      Each
      Borrower will comply and will use its best efforts to cause each other Credit
      Party to ensure that neither Borrowers nor any other Credit Party are or shall
      be (a) listed on the Specially Designated Nationals and Blocked Person List
      maintained by OFAC or any other similar lists maintained by OFAC pursuant to
      any
      authorizing statute, Executive Order or regulation or (b) a person designated
      under Section 1(b), (c) or (d) of Executive Order No. 13224
      (September 23, 2001), any related enabling legislation or any other similar
      Executive Orders.




Section
      7.12  Bank
      Accounts .
      Each
      Borrower will cause all of its bank, deposit and/or security accounts to be
      subject to Control Agreements.




ARTICLE
      VIII




NEGATIVE
      COVENANTS




Each
      Borrower hereby jointly and severally covenants and agrees that, from the
      Closing Date until the Termination Date, Borrowers shall not, directly or
      indirectly, by operation of law or otherwise:




Section
      8.1  Indebtedness .  Cancel
      any debt owing to it or create, incur, assume or permit to exist any
      Indebtedness, except (a) the Obligations and (b) subordinated unsecured
      intercompany loans made by Parent to a Borrower the proceeds of which are
      promptly used by such Borrower to pay a portion of the purchase price to the
      Seller for the relevant Equipment pursuant to the applicable Purchase Agreement
      (“ Parent
      Advances ”).




Section
      8.2  Liens .
      Incur,
      maintain or otherwise suffer to exist any Lien upon or with respect to any
      of
      its property, whether now owned or hereafter acquired, or assign any right
      to
      receive income or profits, except for Permitted Liens.




Section
      8.3  Investments;
      Fundamental Changes .
      Form
      any Subsidiary, merge with, consolidate with, allow or cause the occurrence
      of a
      Change of Control, acquire any assets (other than the Equipment) or Stock of
      or
      membership interests in, or otherwise combine with or make any investment in
      or
      loan or advance to, any Person.




Section
      8.4  Asset
      Sales .
      Convey,
      sell, lease, transfer or otherwise dispose of, in one transaction or a series
      of
      transactions, all or any part of its assets, including any Collateral or any
      Equipment.




Section
      8.5  Restricted
      Payments .
      Make or
      permit any Restricted Payment.




Section
      8.6  Business
      Activities .
      Conduct
      any business activities or operations other than those necessary to: (i) perform
      its obligations and exercise its rights under the Purchase Agreement, (ii)
      purchase the Equipment pursuant to the applicable Purchase Agreement, and
      (iii) perform its obligations under the Loan Documents. Each Borrower shall
      not engage in any business or incur any Indebtedness, Contractual Obligations
      or
      other obligations or own any assets or properties other than (x) its rights
      and
      obligations under the Purchase Agreement, (y) the purchase and ownership of
      the Equipment pursuant to the Purchase Agreement, and (z) in connection
      with its formation, and in each case, activities directly related
      thereto.




Section
      8.7  Transactions
      with Affiliates .
      Directly or indirectly enter into any transaction with any Affiliate of any
      Borrower (other than Parent Advances permitted under Section
      8.1(b) ,
      unless
      the prior written consent of the Administrative Agent has been
      obtained.




Section
      8.8  Contracts .
      Create,
      incur, assume or permit to exist any Contractual Obligations other than under
      the Loan Documents and the Purchase Agreements.




Section
      8.9  Modification
      of Certain Documents .
      Amend,
      supplement, waive, or otherwise modify its certificate of formation, operating
      agreement or other organizational documents in any respect.


32




Section
      8.10  Changes
      to Name, Locations, Etc. (a)
      Change (i) its name, chief executive office, corporate offices from those set
      forth on Schedule 4.3 ,
      (ii)
      the locations of the Equipment or any other Collateral, or location of its
      Books
      and Records from those locations set forth on Schedule 4.3 ,
      (iii)
      the type of legal entity that it is, (iv) its organization identification
      number, if any, issued by its state of incorporation or organization or (v)
      its
      state of organization from that set forth on Schedule 4.3 or (b)
      acquire, lease or use any real estate after the Closing Date without
      (i) Administrative Agent’s prior written consent, which may be withheld in
      its sole and absolute discretion and (ii) taking all actions deemed
      necessary or appropriate by Administrative Agent to continuously protect and
      perfect Administrative Agent’s Liens upon the Collateral.




Section
      8.11  Bank
      Accounts .
      (a)
      Establish any depository or other bank account of any kind with any financial
      institution (other than the accounts set forth on Schedule 7.13 )
      or (b)
      close or permit to be closed any of the accounts listed on Schedule 7.13 in each
      case, without Administrative Agent’s prior written consent, and then only after
      Borrowers have implemented agreements with such bank or financial institution
      and Administrative Agent acceptable to Administrative Agent.




Section
      8.12  Margin
      Regulations .
      Use all
      or any portion of the proceeds of any credit extended hereunder to purchase
      or
      carry Margin Stock in contravention of Regulation U of the Federal Reserve
      Board.




Section
      8.13  Compliance
      with ERISA .
      No
      ERISA Affiliate shall cause or suffer to exist (a) any event that could result
      in the imposition of a Lien with respect to any Title IV Plan or Multiemployer
      Plan or any property of a Borrower or (b) any other ERISA Event, that would,
      in
      the aggregate, reasonably be expected to result in liabilities. Borrowers shall
      not cause or suffer to exist any event that could result in the imposition
      of a
      Lien with respect to any Benefit Plan.




Section
      8.14  Equipment .
      (a )  Borrowers
      will not attach anything on any Equipment that will impair the originally
      intended function or use of such Equipment without the prior written consent
      of
      Administrative Agent. Borrowers will not attach or install any Equipment to
      or
      in any other personal or real property without the prior written consent of
      Administrative Agent.




(b)  Borrowers
      shall not permit any Equipment to be located at any location other than
      (i) until the date that any Equipment is delivered to a Borrower by Seller
      in accordance with the terms of the applicable Purchase Agreement, title to
      such
      Equipment shall have been transferred to such Borrower by Seller free and clear
      of all Liens (other than Liens in favor of Administrative Agent securing the
      Obligations), and Seller has delivered to such Borrower and Administrative
      Agent
      the release in form of Attachment 4 to the applicable Purchase Agreement with
      respect to such Equipment) (with respect to such Equipment, such date being
      the
“ Equipment
      Delivery Date ”),
      the
      Seller’s location in accordance with the applicable Purchase Agreement and
      (ii) on and after the Equipment Delivery Date with respect to any Equipment
      (A) the applicable Project for such Equipment or (B) a third-party storage
      facility reasonably acceptable to the Administrative Agent (“Third-Party Storage
      Facility”), provided , that with
      respect to the foregoing clauses (A) and (B), (1) such Equipment is not
      installed in or affixed to any part of the Project or Third-Party Storage
      Facility, as applicable, and is segregated from any other equipment and property
      at such location and otherwise stored in a manner satisfactory to the
      Administrative Agent, (2) Borrowers have in effect insurance with respect
      to such Equipment in accordance with Section
      7.5 ,
      (3) Borrowers have given the Administrative Agent no less than five (5)
      Business Days advance notice prior to such Equipment Delivery Date, and (4)
      Administrative Agent has received such access agreements, consents and waivers
      from the owners of the applicable Project or Third-Party Storage Facility,
      as
      applicable, and any lessor or other Persons holding Liens on such Project or
      Third-Party Storage Facility, as applicable, as Administrative Agent may
      require.




(c)  Borrowers
      shall not (i) use any transportation service for delivery of the Equipment
      from
      the Seller without the prior written consent of the Administrative Agent other
      than (A) the Seller’s transportation service described in Article
      7.6 of each
      of the Purchase Agreements and (B) a third-party transportation service for
      delivery of the Equipment reasonably satisfactory to Administrative Agent in
      all
      respects (a “ Non-Seller
      Transportation Service ”),
      and
      (ii) permit any Equipment to be shipped to storage, including pursuant to Article
      7.5 of the
      Purchase Agreements, provided , that Borrowers may permit any Equipment to be shipped to and stored at a Third-Party
      Storage Facility in accordance with Section
      8.14(c) .
      Prior
      to shipping any Equipment by a Non-Seller Transportation Service Borrowers
      shall
      provide to Administrative Agent evidence satisfactory to it that (1) the
      insurance policies provided for in Section 7.5(a) are in
      full force and effect, (2) risk of loss with respect to such Equipment shall
      not
      pass to Borrowers until the Equipment shall be delivered to the Third-Party
      Storage Facility, and (3) Borrowers shall have given the Administrative
      Agent no less than thirty (30) days advance notice prior to the commencement
      of
      transportation of the Equipment by a Non-Seller Transportation
      Service.


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Section
      8.15  Purchase
      Agreements .
      (a)
      Amend, supplement, waive, terminate or otherwise modify any term or provision
      of
      any of the Purchase Agreements or (b) give any change order, exercise any option
      or purchase any additional equipment under any of the Purchase
      Agreements.




ARTICLE
      IX




[INTENTIONALLY
      OMITTED]




ARTICLE
      X




SECURITY
      INTEREST




Section
      10.1  Grant
      of Security Interest .
      (a) As
      collateral security for the prompt and complete payment and performance of
      the
      Obligations, each Borrower hereby grants to Administrative Agent, for the
      benefit of the Secured Parties, a security interest in and Lien upon all of
      its
      property and assets, whether real or personal, tangible or intangible, and
      whether now owned or hereafter acquired, or in which it now has or at any time
      in the future may acquire any right, title, or interest, including all of the
      following property in which it now has or at any time in the future may acquire
      any right, title or interest:




(a)  all
      accounts;




(b)  all
      deposit accounts;




(c)  all
      other
      bank accounts and all funds on deposit therein; all money, cash and cash
      equivalents;




(d)  all
      investment property;




(e)  all
      Stock;




(f)  all
      goods
      (including inventory, equipment and fixtures);




(g)  all
      chattel paper, documents and instruments;




(h)  all
      Books
      and Records;




(i)  all
      general intangibles (including all Intellectual Property, contract rights,
      choses in action, payment intangibles and software);




(j)  all
      letter-of-credit rights;




(k)  all
      commercial tort claims;




(l)  all
      supporting obligations; and




(m)  to
      the
      extent not otherwise included, all Proceeds, tort claims, insurance claims
      and
      other rights to payment not otherwise included in the foregoing and products
      of
      all and any of the foregoing and all accessions to, substitutions and
      replacements for, and rents and profits of, each of the
      foregoing,


34


(all
      of
      the foregoing, together with any other collateral pledged to Administrative
      Agent, for the benefit of the Secured Parties, pursuant to any other Loan
      Document, collectively, the “ Collateral ”).




Section
      10.2  Nature
      of Security Interest .
      Borrowers and Administrative Agent agree that this Agreement creates, and is
      intended to create, valid and continuing Liens upon the Collateral in favor
      of
      Administrative Agent, for the benefit of the Secured Parties.




Section
      10.3  Representations
      and Warranties Regarding Collateral .
      Borrowers jointly and severally represent, warrant and promise to Administrative
      Agent that: (a) each Borrower has rights in and the power to transfer each
      item
      of the Collateral upon which it purports to grant a Lien pursuant to the Loan
      Documents, free and clear of any and all Liens or claims of others, other than
      Permitted Liens, (b) the security interests granted pursuant to this Agreement,
      upon completion of the filings and other actions listed on Schedule 10.3 (which,
      in the case of all filings and other documents referred to in such Schedule,
      have been delivered to Administrative Agent in duly executed form) will
      constitute valid perfected security interests in all of the Collateral in favor
      of Administrative Agent as security for the prompt and complete payment and
      performance of the Obligations, enforceable in accordance with the terms hereof
      against any and all creditors of and purchasers from each Borrower (other than
      purchasers in the ordinary course of business) and such security interests
      are
      prior to all other Liens on the Collateral in existence on the date hereof
      except for Permitted Liens that have priority by operation of law and
      (c) no effective security agreement, mortgage, deed of trust, financing
      statement, equivalent security or Lien instrument or continuation statement
      covering all or any part of the Collateral is or will be on file or of record
      in
      any public office.




Section
      10.4  Defense
      of Collateral .
      Borrowers jointly and severally promise to defend the right, title and interest
      of Administrative Agent in and to the Collateral against the claims and demands
      of all Persons whomsoever, and each shall take such actions, including (a)
      all
      actions necessary to grant Administrative Agent “control” of any investment
      property, deposit accounts, letter-of-credit rights or electronic chattel paper
      owned by any Borrower, with any agreements establishing control to be in form
      and substance satisfactory to Administrative Agent, (b) the prompt delivery
      of
      all original instruments, chattel paper and certificated Stock owned by any
      Borrower granting a Lien on Collateral to Administrative Agent, (c) notification
      to third parties of Administrative Agent’s interest in Collateral at
      Administrative Agent’s request and (d) the institution of litigation against
      third parties as shall be prudent in order to protect and preserve Borrowers’
and Administrative Agent’s respective and several interests in the
      Collateral.




Section
      10.5  Books
      and Records; Legends .
      Each
      Borrower shall mark its Books and Records pertaining to the Collateral to
      evidence the Loan Documents and the Liens granted under the Loan Documents.
      If
      any Borrower retains possession of any chattel paper or instrument with
      Administrative Agent’s consent, such chattel paper and instruments shall be
      marked with the following legend: “This writing and the obligations evidenced or
      secured hereby are subject to the security interest of General Electric Capital
      Corporation, as administrative agent.”




Section
      10.6  Notification
      of Commercial Tort Claims; Intellectual Property .
      Borrowers shall promptly, and in any event within 2 Business Days after the
      same
      is acquired by any Borrower, notify Administrative Agent of any commercial
      tort
      claim acquired by such Borrower and unless otherwise consented by Administrative
      Agent, such Borrower shall enter into a supplement to this Agreement granting
      to
      Administrative Agent, for the benefit of the Secured Parties, a Lien in such
      commercial tort claim. Each Borrower will promptly patent or register, as the
      case may be, all new Intellectual Property and notify Administrative Agent
      in
      writing 5 Business Days prior to filing any such new patent or
      registration.




Section
      10.7  Administrative
      Agent’s Rights .
      (a ) Administrative Agent may, (i) at any time in Administrative Agent’s own
      name or in the name of any Borrower, communicate with account debtors, parties
      to contracts, and obligors in respect of instruments, chattel paper or other
      Collateral to verify to Administrative Agent’s satisfaction, the existence,
      amount and terms of ,
      and any
      other matter relating to, accounts, payment
      intangibles ,
      instruments, chattel paper or other Collateral where necessary and reasonable
      and (ii) at any time after
      an
      Event Default has occurred and is continuing and
      without prior notice to any Borrower, notify account debtors and
      other Persons obligated on any Collateral that Administrative Agent has a
      security interest therein and that
      payments shall be made directly to Administrative Agent. Upon the request of
      Administrative Agent or Borrowers shall so notify such account debtors, parties
      to contracts, and obligors in respect of instruments, chattel paper or other
      Collateral. Borrowers hereby constitute Administrative Agent or Administrative
      Agent’s designee as each Borrower’s attorney-in-fact with power to endorse each
      Borrower’s name upon any notes, acceptance drafts, money orders or other
      evidences of payment or Collateral.


35




(b)  Borrowers
      shall remain liable under each Contractual Obligation to observe and perform
      all
      the conditions and obligations to be observed and performed by each Borrower
      thereunder, and Administrative Agent shall have no obligation or liability
      whatsoever to any Person under any Contractual Obligation (between any Borrower
      or any other Credit Party and any Person other than Administrative Agent) by
      reason of or arising out of the execution, delivery or performance of this
      Agreement, and Administrative Agent shall not be required or obligated in any
      manner (i) to perform or fulfill any of the obligations of Borrowers, (ii)
      to
      make any payment or inquiry or (iii) to take any action of any kind to collect,
      compromise or enforce any performance or the payment of any amounts which may
      have been assigned to it or to which it may be entitled at any time or times
      under or pursuant to any Contractual Obligation.




Section
      10.8  Administrative
      Agent’s Appointment as Attorney-in-fact .
      On the
      Closing Date, each Borrower shall execute and deliver a Power of Attorney.
      The
      power of attorney granted pursuant to the Power of Attorney and all powers
      granted under any Loan Document are powers coupled with an interest and shall
      be
      irrevocable until the Termination Date. The powers conferred on Administrative
      Agent under the Power of Attorney are solely to protect Administrative Agent’s
      interests in the Collateral and shall not impose any duty upon it to exercise
      any such powers. Administrative Agent agrees not to exercise any power or
      authority granted under the Power of Attorney unless an Event of Default has
      occurred and is continuing.




Section
      10.9  Authorization
      to File Financing Statements .
      Each
      Borrower also hereby (a) authorizes Administrative Agent to file any
      financing statements, continuation statements or amendments thereto that (i)
      indicate the Collateral (x) as “all assets” of such Borrower (or any portion of
      such Borrower’s assets) or words of similar effect, regardless of whether any
      particular asset comprised in the Collateral falls within the scope of
      Article 9 of the UCC of such jurisdiction or (y) as being of an equal or
      lesser scope or with greater detail and (ii) contain any other information
      required by Part 5 of Article 9 of the UCC for the sufficiency or filing
      office acceptance of any financing statement, continuation statement or
      amendment and (b) ratifies its authorization for Administrative Agent to have
      filed any initial financing statements, or amendments thereto if filed prior
      to
      the date hereof. Each Borrower acknowledges that it is not authorized to file
      any financing statement or amendment or termination statement with respect to
      any financing statement until the Termination Date and agrees it will not do
      so
      without the prior written consent of Administrative Agent, subject to such
      Borrower’s rights under Section 9-509(d)(2) of the UCC.




Section
      10.10  Grant
      of License to Use Intellectual Property Collateral .
      Each
      Borrower hereby grants to Administrative Agent an irrevocable, non-exclusive
      license (exercisable upon the occurrence and during the continuance of an Event
      of Default without payment of royalty or other compensation to such Borrower)
      to
      use, transfer, license or sublicense any Intellectual Property now owned,
      licensed to, or hereafter acquired by such Borrower, and wherever the same
      may
      be located, and including in such license access to all media in which any
      of
      the licensed items may be recorded or stored and to all computer software and
      programs used for the compilation or printout thereof, and represents, promises
      and agrees that any such license or sublicense is not and will not be in
      conflict with the contractual or commercial rights of any third Person; provided that
      such license will terminate on the Termination Date.




ARTICLE
      XI





EVENTS
      OF
      DEFAULT; RIGHTS AND REMEDIES




Section
      11.1  Events
      of Default .
      The
      occurrence of any one or more of the following events (regardless of the reason
      therefor) shall constitute an “ Event
      of Default ”:




(a)  Any
      Borrower shall fail to make any payment in respect of (i) principal of any
      Loan when due and payable or declared due and payable or (ii) any other
      Obligations when due and payable or declared due and payable and, in the case
      of
      this clause
      (ii) ,
      such
      non-payment continues for a period of 3 Business Days after the due date
      therefor; or


36




(b)  Any
      Borrower, Parent or any other Credit Party shall fail to comply with
      (i) any provision of Article VI , Section 7.1 , Section
      7.4 , Section 7.8 or Article VIII of this
      Agreement or any provision of Article
      V of the
      Guaranty or (ii) any other provision of any Loan Document if, in the case
      of this clause
      (ii) ,
      such
      failure shall remain unremedied for a period of 30 days; or




(c)  (i)
      a
      default or event of default occurs under a Purchase Agreement that is not cured
      within any applicable grace period therefor, or a Purchase Agreement is
      terminated for any reason or Seller shall suspend work on or shipment of the
      Equipment pursuant to Article
      23.6 of a
      Purchase Agreement, or a Borrower or Seller shall have the right to terminate
      any of the Purchase Agreements pursuant to Article
      23 thereof;
      or (ii) an event of default shall occur under any Contractual Obligation of
      a
      Borrower, and such event of default (A) involves the failure to make any
      payment (whether or not such payment is blocked pursuant to the terms of an
      intercreditor agreement or otherwise), whether of principal, interest or
      otherwise, and whether due by scheduled maturity, required prepayment,
      acceleration, demand or otherwise, in respect of any Indebtedness (other than
      the Obligations) of a Borrower or (B) causes (or permits any holder of such
      Indebtedness or a trustee to cause) such Indebtedness, or a portion thereof,
      to
      become due prior to its stated maturity or prior to its regularly scheduled
      date
      of payment; or (iii) an event of default shall occur under any Contractual
      Obligation of Parent (other than a Loan Document), and such event of default
      (A) involves the failure to make any payment (whether or not such payment
      is blocked pursuant to the terms of an intercreditor agreement or otherwise),
      whether of principal, interest or otherwise, and whether due by scheduled
      maturity, required prepayment, acceleration, demand or otherwise, in respect
      of
      any Indebtedness (other than the Obligations) of Parent in an aggregate amount
      exceeding $3,000,000 or (B) causes (or permits any holder of such
      Indebtedness or a trustee to cause) such Indebtedness, or a portion thereof,
      in
      an aggregate amount exceeding $3,000,000 to become due prior to its stated
      maturity or prior to its regularly scheduled date of payment; or




(d)  any
      representation or warranty in this Agreement or any other Loan Document, or
      in
      any written statement pursuant hereto or thereto, or in any report, financial
      statement or certificate made or delivered to Administrative Agent, any Lender
      by a Borrower, Parent or any other Credit Party shall be untrue or incorrect
      in
      any material respect as of the date when made or deemed made, regardless of
      whether such breach involves a representation or warranty with respect to a
      Credit Party that has not signed this Agreement; or




(e)  there
      shall be commenced against a Borrower, Parent or any other Credit Party any
      Litigation seeking issuance of a warrant of attachment, execution, distraint
      or
      similar process against all or any substantial part of its assets that results
      in the entry of an order for any such relief that remains unstayed or
      undismissed for 30 consecutive days; or




(f)  a
      case or
      proceeding shall have been commenced involuntarily against either Borrower,
      Parent or any other Credit Party in a court having competent jurisdiction
      seeking a decree or order: (i) under the United States Bankruptcy Code or any
      other applicable federal, state or foreign bankruptcy or other similar law,
      and
      seeking either (x) the appointment of a custodian, receiver, liquidator,
      assignee, trustee or sequestrator (or similar official) for such Person or
      of
      any substantial part of its properties or (y) the reorganization or winding
      up
      or liquidation of the affairs of any such Person, and such case or proceeding
      shall remain undismissed or unstayed for 60 consecutive days or such court
      shall
      enter a decree or order granting the relief sought in such case or proceeding
      or
      (ii) invalidating or denying any Person’s right, power, or competence to enter
      into or perform any of its obligations under any Loan Document or invalidating
      or denying the validity or enforceability of this Agreement or any other Loan
      Document or any action taken hereunder or thereunder; or




(g)  Any
      Borrower, Parent or any other Credit Party shall (i) commence any case,
      proceeding or other action under any existing or future law of any jurisdiction,
      domestic or foreign, relating to bankruptcy, insolvency, reorganization,
      conservatorship or relief of debtors, seeking to have an order for relief
      entered with respect to it or seeking appointment of a custodian, receiver,
      liquidator, assignee, trustee or sequestrator (or similar official) for it
      or
      any substantial part of its properties, (ii) make a general assignment for
      the
      benefit of creditors, (iii) consent to or take any action in furtherance
      of, or, indicating its consent to, approval of, or acquiescence in, any of
      the
      acts set forth in paragraph
      (f) of this Section 11.1 or clauses
      (i) and (ii) of
      this paragraph
      (g) ,
      (iv)
      shall admit in writing its inability to, or shall be generally unable to, pay
      its debts as such debts become due or (v) cease to be Solvent;
      or


37




(h)  (i)
      a
      final judgment or judgments for the payment of money in excess of $100,000
      in
      the aggregate shall be rendered against any Borrower, unless the same shall
      be
      (a) fully covered by insurance and the issuer(s) of the applicable policies
      shall have acknowledged full coverage in writing within 30 days of judgment
      or
      (b) vacated, stayed, bonded, paid or discharged within a period of 30 days
      from the date of such judgment; or (ii) a final judgment or judgments for the
      payment of money in excess of $3,000,000 in the aggregate shall be rendered
      against Parent or any other Credit Party, unless the same shall be (a) fully
      covered by insurance and the issuer(s) of the applicable policies shall have
      acknowledged full coverage in writing within 30 days of judgment or
      (b) vacated, stayed, bonded, paid or discharged within a period of 30 days
      from the date of such judgment; or




(i)  any
      provision of any Loan Document shall for any reason cease to be valid, binding
      and enforceable in accordance with its terms, or any Lien granted, or intended
      by the Loan Documents to be granted, to Administrative Agent shall cease to
      be a
      valid and perfected Lien having the first priority (or a lesser priority if
      expressly permitted in the Loan Documents) in any of the Collateral (or any
      Credit Party shall so assert any of the foregoing); or




(j)  a
      Change
      of Control shall have occurred.




Section
      11.2  Remedies .
      (a ) If any
      Default shall have occurred and be continuing, then Administrative Agent may,
      and at the request of the Required Lenders shall, terminate or suspend the
      obligations of the Lenders under the Delayed Draw Term Loan Facility. In
      addition, if any Event of Default shall have occurred and be continuing,
      Administrative Agent may, and at the request of the Required Lenders shall,
      without presentment, demand, protest or further notice or other requirements
      of
      any kind, all of which are hereby expressly waived, take any one or more of
      the
      following actions: (i) declare all or any portion of the Delayed Draw Term
      Loan
      Commitments terminated, whereupon the Delayed Draw Term Loan Commitments shall
      immediately be reduced by such portion or, in the case of a termination in
      whole, shall terminate together with any obligation any Lender may have
      hereunder to make any Loan, (ii) declare all or any portion of the Obligations
      to be forthwith due and payable, whereupon such Obligations shall become and
      be
      due and payable, or (iii) exercise any rights and remedies provided to
      Administrative Agent under the Loan Documents or at law or equity, including
      all
      remedies provided under the UCC; provided that
      upon the occurrence of any Event of Default specified in Sections
      11.1(f) or (g) ,
      the
      Delayed Draw Term Loan Commitments of each Lender to make Loans shall each
      automatically be terminated and Obligations shall become immediately due and
      payable without presentment, demand, protest or further notice or other
      requirements of any kind, all of which are hereby expressly waived.




(b)  Without
      limiting the generality of the foregoing, each Borrower and each other Credit
      Party executing this Agreement expressly agrees that upon the occurrence of
      any
      Event of Default, Administrative Agent may collect, receive, assemble, process,
      appropriate and realize upon the Collateral, or any part thereof, and may
      forthwith sell, lease, assign, give an option or options to purchase or
      otherwise dispose of and deliver said Collateral (or contract to do so), or
      any
      part thereof, in one or more parcels at public or private sale or sales, at
      any
      exchange at such prices as it may deem best, for cash or on credit or for future
      delivery without assumption of any credit risk. Administrative Agent and any
      other Secured Party shall have the right upon any such public sale, to the
      extent permitted by law, to purchase for the benefit of Administrative Agent
      or
      such Secured Party the whole or any part of said Collateral so sold, free of
      any
      right of equity of redemption, which right each Borrower hereby releases. Such
      sales may be adjourned, or continued from time to time with or without notice.
      Administrative Agent shall have the right to conduct such sales on any Credit
      Party’s premises or elsewhere and shall have the right to use any Credit Party’s
      premises without rent or other charge for such sales or other action with
      respect to the Collateral for such time as Administrative Agent deems necessary
      or advisable.


38




(c)  Upon
      the
      occurrence and during the continuance of an Event of Default and at
      Administrative Agent’s request, each Borrower and each other Credit Party
      executing this Agreement further agrees, to assemble the Collateral and make
      it
      available to Administrative Agent at places that Administrative Agent shall
      reasonably select, whether at its premises or elsewhere. Until Administrative
      Agent is able to effect a sale, lease, or other disposition of the Collateral,
      Administrative Agent shall have the right to complete, assemble, use or operate
      the Collateral or any part thereof, to the extent that Administrative Agent
      deems appropriate, for the purpose of preserving such Collateral or its value
      or
      for any other purpose. Administrative Agent shall have no obligation to any
      Credit Party to maintain or preserve the rights of any Credit Party as against
      third parties with respect to any Collateral while such Collateral is in the
      possession of Administrative Agent. Administrative Agent may, if it so elects,
      seek the appointment of a receiver or keeper to take possession of any
      Collateral and to enforce any of Administrative Agent’s remedies with respect
      thereto without prior notice or hearing. To the maximum extent permitted by
      applicable law, each Borrower and each other Credit Party executing this
      Agreement waives all claims, damages, and demands against Administrative Agent,
      its Affiliates, agents, and the officers and employees of any of them arising
      out of the repossession, retention or sale of any Collateral except such as
      are
      determined in a final judgment by a court of competent jurisdiction to have
      arisen solely out of the gross negligence or willful misconduct of such Person.
      Each Borrower and each other Credit Party executing this Agreement agrees that
      10 days’ prior notice by Administrative Agent to such Credit Party of the time
      and place of any public sale or of the time after which a private sale may
      take
      place is reasonable notification of such matters. Borrowers and each other
      Credit Party shall remain liable for any deficiency if the proceeds of any
      sale
      or disposition of the Collateral are insufficient to pay all amounts to which
      the Secured Parties are entitled.




(d)  Neither
      any Secured Party’s failure, at any time, to require strict performance by
      Borrowers or any other Credit Party of any provision of any Loan Document,
      nor
      any Secured Party’s failure to exercise, nor any delay in exercising, any right,
      power or privilege hereunder, shall operate as a waiver thereof or waive, affect
      or diminish any right of such Secured Party thereafter to demand strict
      compliance and performance therewith, it being understood that any such waiver
      shall only be effective if made in accordance with Section 13.1 .
      Each
      waiver or consent under any Loan Document shall be effective only in the
      specific instance and for the specific purpose for which it was given. Each
      Secured Party’s rights and remedies under this Agreement shall be cumulative and
      nonexclusive of any other rights and remedies that such Secured Party may have
      under any Loan Document or at law or in equity. No single or partial exercise
      of
      any right, power or privilege hereunder shall preclude any other or future
      exercise thereof or the exercise of any other right, power or privilege. No
      notice to or demand on any Credit Party shall entitle any Credit Party to notice
      or demand in the same, similar or other circumstances. Recourse to the
      Collateral shall not be required.




Section
      11.3  Waivers
      by Credit Parties .
      Except
      as otherwise provided for in this Agreement and to the fullest extent permitted
      by applicable law, each Borrower and each other Credit Party executing this
      Agreement waives: (a) presentment, demand and protest, and notice of
      presentment, dishonor, intent to accelerate, acceleration, protest, default,
      nonpayment, maturity, release, compromise, settlement, extension or renewal
      of
      any or all Loan Documents or any other notes, commercial paper, accounts,
      contracts, documents, instruments, chattel paper and guaranties at any time
      held
      by any Secured Party on which such Credit Party may in any way be liable, and
      hereby ratifies and confirms whatever any Secured Party may do in this regard,
      (b) all rights to notice and a hearing prior to Administrative Agent’s taking
      possession or control of, or to Administrative Agent’s replevy, attachment or
      levy upon, any Collateral or any bond or security that might be required by
      any
      court prior to allowing Administrative Agent to exercise any of its remedies
      and
      (c) the benefit of all valuation, appraisal and exemption laws. Each Borrower
      and each other Credit Party executing this Agreement acknowledges that it has
      been advised by counsel of its choices and decisions with respect to this
      Agreement, the other Loan Documents and the transactions evidenced hereby and
      thereby.




ARTICLE
      XII





ADMINISTRATIVE
      AGENT




Section
      12.1  Appointment
      and Duties .




(a)  Appointment
      of Administrative Agent .
      Each
      Lender hereby appoints GE Capital (together with any successor Administrative
      Agent pursuant to Section 12.9 )
      as
      Administrative Agent hereunder and authorizes Administrative Agent to
      (i) execute and deliver the Loan Documents and accept delivery thereof on
      its behalf from any Credit Party, (ii) take such action on its behalf and to
      exercise all
      rights, powers and remedies and perform the duties as are expressly delegated
      to
      Administrative Agent under such Loan Documents and (iii) exercise such powers
      as
      are reasonably incidental thereto.


39




(b)  Duties
      as Collateral and Disbursing Agent .
      Without
      limiting the generality of clause
      (a) above,
      Administrative Agent shall have the sole and exclusive right and authority
      (to
      the exclusion of the Lenders), and is hereby authorized, to (i) act as the
      disbursing and collecting agent for the Lenders with respect to all payments
      and
      collections arising in connection with the Loan Documents (including in any
      proceeding described in Section 11.1(f) or (g) or any
      other bankruptcy, insolvency or similar proceeding), and each Person making
      any
      payment in connection with any Loan Document to any Secured Party is hereby
      authorized to make such payment to Administrative Agent, (ii) file and prove
      claims and file other documents necessary or desirable to allow the claims
      of
      the Secured Parties with respect to any Obligation in any proceeding described
      in Section 11.1(f) or (g) or any
      other bankruptcy, insolvency or similar proceeding (but not to vote, consent
      or
      otherwise act on behalf of such Secured Party), (iii) act as collateral agent
      for each Secured Party for purposes of the perfection of all Liens created
      by
      such agreements and all other purposes stated therein, (iv) manage, supervise
      and otherwise deal with the Collateral, (v) take such other action as is
      necessary or desirable to maintain the perfection and priority of the Liens
      created or purported to be created by the Loan Documents, (vi) except as may
      be
      otherwise specified in any Loan Document, exercise all remedies given to
      Administrative Agent and the other Secured Parties with respect to the
      Collateral, whether under the Loan Documents, applicable Requirements of Law
      or
      otherwise and (vii) execute any amendment, consent or waiver under the Loan
      Documents on behalf of any Lender that has consented in writing to such
      amendment, consent or waiver; provided , however ,
      that
      Administrative Agent hereby appoints, authorizes and directs each Lender to
      act
      as collateral sub-agent for Administrative Agent, the Lenders for purposes
      of
      the perfection of all Liens with respect to the Collateral, including any
      deposit account maintained by a Credit Party with, and cash and cash equivalents
      held by, such Lender, and may further authorize and direct the Lenders to take
      further actions as collateral sub-agents for purposes of enforcing such Liens
      or
      otherwise to transfer the Collateral subject thereto to Administrative Agent,
      and each Lender hereby agrees to take such further actions to the extent, and
      only to the extent, so authorized and directed.




(c)  Limited
      Duties .
      Under
      the Loan Documents, Administrative Agent (i) is acting solely on behalf of
      the
      Lenders (except to the limited extent provided in Section 2.11(b) with
      respect to the Register and in Section 12.11 ),
      with
      duties that are entirely administrative in nature, notwithstanding the use
      of
      the defined term “Administrative Agent”, the terms “agent”, “administrative
      agent” and “collateral agent” and similar terms in any Loan Document to refer to
      Administrative Agent, which terms are used for title purposes only, (ii) is
      not
      assuming any obligation under any Loan Document other than as expressly set
      forth therein or any role as agent, fiduciary or trustee of or for any Lender
      or
      any other Secured Party and (iii) shall have no implied functions,
      responsibilities, duties, obligations or other liabilities under any Loan
      Document, and each
      Lender hereby waives and agrees not to assert any claim against Administrative
      Agent based on the roles, duties and legal relationships expressly disclaimed
      in clauses
      (i) through (iii) above.




Section
      12.2  Binding
      Effect .
      Each
      Lender agrees that (i) any action taken by Administrative Agent or the Required
      Lenders (or, if expressly required hereby, a greater proportion of the Lenders)
      in accordance with the provisions of the Loan Documents, (ii) any action taken
      by Administrative Agent in reliance upon the instructions of Required Lenders
      (or, where so required, such greater proportion) and (iii) the exercise by
      Administrative Agent or the Required Lenders (or, where so required, such
      greater proportion) of the powers set forth herein or therein, together with
      such other powers as are reasonably incidental thereto, shall be authorized
      and
      binding upon all of the Secured Parties.




Section
      12.3  Use
      of
      Discretion .
      (a) No
      Action without Instructions .
      Administrative Agent shall not be required to exercise any discretion or take,
      or to omit to take, any action, including with respect to enforcement or
      collection, except any action it is required to take or omit to take
      (i) under any Loan Document or (ii) pursuant to instructions from the
      Required Lenders (or, where expressly required by the terms of this Agreement,
      a
      greater proportion of the Lenders).




(a)  Right
      Not to Follow Certain Instructions .
      Notwithstanding clause
      (a) above,
      Administrative Agent shall not be required to take, or to omit to take, any
      action (i) unless, upon demand, Administrative Agent receives an
      indemnification satisfactory to it from the Lenders (or, to the extent
      applicable and acceptable to Administrative Agent, any other Secured Party)
      against all Liabilities that, by reason of such action or omission, may be
      imposed on, incurred by or asserted against Administrative Agent or any Related
      Person thereof or (ii) that is, in the opinion of Administrative Agent or
      its counsel, contrary to any Loan Document or applicable Requirement of
      Law.


40




Section
      12.4  Delegation
      of Rights and Duties .
      Administrative Agent may, upon any term or condition it specifies, delegate
      or
      exercise any of its rights, powers and remedies under, and delegate or perform
      any of its duties or any other action with respect to, any Loan Document by
      or
      through any trustee, co-agent, employee, attorney-in-fact and any other Person
      (including any Secured Party). Any such
      Person shall benefit from this  Article XII to the
      extent provided by Administrative Agent.




Section
      12.5  Reliance
      and Liability .
      (a)
      Administrative Agent may, without incurring any liability hereunder, (i) treat
      the payee of any Note as its holder until such Note has been assigned in
      accordance with Section 12.2(e) ,
      (ii)
      rely on the Register to the extent set forth in Section 2.11 ,
      (iii)
      consult with any of its Related Persons and, whether or not selected by it,
      any
      other advisors, accountants and other experts (including advisors to, and
      accountants and experts engaged by, any Credit Party) and (iv) rely and act
      upon
      any document and information (including those transmitted by Electronic
      Transmission) and any telephone message or conversation, in each case believed
      by it to be genuine and transmitted, signed or otherwise authenticated by the
      appropriate parties.




(b)  None
      of
      Administrative Agent and its Related Persons shall be liable for any action
      taken or omitted to be taken by any of them under or in connection with any
      Loan
      Document, and each Lender, each Borrower and each other Credit Party party
      to
      this Agreement hereby waive and shall not assert any right, claim or cause
      of
      action based thereon, except to the extent of liabilities resulting primarily
      from the gross negligence or willful misconduct of Administrative Agent or,
      as
      the case may be, such Related Person (each as determined in a final,
      non-appealable judgment by a court of competent jurisdiction) in connection
      with
      the duties expressly set forth herein. Without limiting the foregoing,
      Administrative Agent:




(i)  shall
      not
      be responsible or otherwise incur liability for any action or omission taken
      in
      reliance upon the instructions of the Required Lenders or for the actions or
      omissions of any of its Related Persons selected with reasonable care (other
      than employees, officers and directors of Administrative Agent, when acting
      on
      behalf of Administrative Agent);




(ii)  shall
      not
      be responsible to any Secured Party for the due execution, legality, validity,
      enforceability, effectiveness, genuineness, sufficiency or value of, or the
      attachment, perfection or priority of any Lien created or purported to be
      created under or in connection with, any Loan Document;




(iii)  makes
      no
      warranty or representation, and shall not be responsible, to any Secured Party
      for any statement, document, information, representation or warranty made or
      furnished by or on behalf of any Related Person or any Credit Party in
      connection with any Loan Document or any transaction contemplated therein or
      any
      other document or information with respect to any Credit Party, whether or
      not
      transmitted or (except for documents expressly required under any Loan Document
      to be transmitted to the Lenders) omitted to be transmitted by Administrative
      Agent, including as to completeness, accuracy, scope or adequacy thereof, or
      for
      the scope, nature or results of any due diligence performed by Administrative
      Agent in connection with the Loan Documents; and




(iv)  shall
      not
      have any duty to ascertain or to inquire as to the performance or observance
      of
      any provision of any Loan Document, whether any condition set forth in any
      Loan
      Document is satisfied or waived, as to the financial condition of any Credit
      Party or as to the existence or continuation or possible occurrence or
      continuation of any Default or Event of Default and shall not be deemed to
      have
      notice or knowledge of such occurrence or continuation unless it has received
      a
      notice from Borrowers, any Lender describing such Default or Event of Default
      clearly labeled “notice of default” (in which case Administrative Agent shall
      promptly give notice of such receipt to all Lenders);




and,
      for
      each of the items set forth in clauses
      (i) through (iv) above,
      each Lender, each Borrower and each other Credit Party party to this Agreement
      hereby waives and agrees not to assert any right, claim or cause of action
      it
      might have against Administrative Agent based thereon.


41




Section
      12.6  Administrative
      Agent Individually .
      Administrative Agent and its Affiliates may make loans and other extensions
      of
      credit to, acquire Stock and Stock Equivalents of, engage in any kind of
      business with, any Credit Party or Affiliate thereof as though it were not
      acting as Administrative Agent and may receive separate fees and other payments
      therefor. To the extent Administrative Agent or any of its Affiliates makes
      any
      Loan or otherwise becomes a Lender hereunder, it shall have and may exercise
      the
      same rights and powers hereunder and shall be subject to the same obligations
      and liabilities as any other Lender and the terms “Lender” and “Required Lender”
and any similar terms shall, except where otherwise expressly provided in any
      Loan Document, include, without limitation, Administrative Agent or such
      Affiliate, as the case may be, in its individual capacity as Lender or as one
      of
      the Required Lenders, respectively.




Section
      12.7  Lender
      Credit Decision .
      Each
      Lender acknowledges that it shall, independently and without reliance upon
      Administrative Agent, any Lender or any of their Related Persons or upon any
      document solely or in part because such document was transmitted by
      Administrative Agent or any of its Related Persons, conduct its own independent
      investigation of the financial condition and affairs of each Credit Party and
      make and continue to make its own credit decisions in connection with entering
      into, and taking or not taking any action under, any Loan Document or with
      respect to any transaction contemplated in any Loan Document, in each case
      based
      on such documents and information as it shall deem appropriate. Except for
      documents expressly required by any Loan Document to be transmitted by
      Administrative Agent to the Lenders, Administrative Agent shall not have any
      duty or responsibility to provide any Lender with any credit or other
      information concerning the business, prospects, operations, property, financial
      and other condition or creditworthiness of any Credit Party or any Affiliate
      of
      any Credit Party that may come in to the possession of Administrative Agent
      or
      any of its Related Persons.




Section
      12.8  Expenses;
      Indemnities .
      (a)
      Each Lender agrees to reimburse Administrative Agent and each of its Related
      Persons (to the extent not reimbursed by any Credit Party) promptly upon demand
      for such Lender’s Pro Rata Share with respect to the Delayed Draw Term Loan
      Facility of any costs and expenses (including fees, charges and disbursements
      of
      financial, legal and other advisors and Other Taxes paid in the name of, or
      on
      behalf of, any Credit Party) that may be incurred by Administrative Agent or
      any
      of its Related Persons in connection with the preparation, syndication,
      execution, delivery, administration, modification, consent, waiver or
      enforcement (whether through negotiations, through any work-out, bankruptcy,
      restructuring or other legal or other proceeding or otherwise) of, or legal
      advice in respect of its rights or responsibilities under, any Loan
      Document.




(b)  Each
      Lender further agrees to indemnify Administrative Agent and each of its Related
      Persons (to the extent not reimbursed by any Credit Party), from and against
      such Lender’s aggregate Pro Rata Share with respect to the Delayed Draw Term
      Loan Facility of the Liabilities (including taxes, interests and penalties
      imposed for not properly withholding or backup withholding on payments made
      to
      on or for the account of any Lender) that may be imposed on, incurred by or
      asserted against Administrative Agent or any of its Related Persons in any
      matter relating to or arising out of, in connection with or as a result of
      any
      Loan Document, any Related Document or any other act, event or transaction
      related, contemplated in or attendant to any such document, or, in each case,
      any action taken or omitted to be taken by Administrative Agent or any of its
      Related Persons under or with respect to any of the foregoing; provided , however ,
      that no
      Lender shall be liable to Administrative Agent or any of its Related Persons
      to
      the extent such liability has resulted primarily from the gross negligence
      or
      willful misconduct of Administrative Agent or, as the case may be, such Related
      Person, as determined by a court of competent jurisdiction in a final
      non-appealable judgment or order.




Section
      12.9  Resignation
      of Administrative Agent . (a) Administrative Agent may resign at any time by delivering notice of
      such resignation to the Lenders and Borrowers, effective on the date set forth
      in such notice or, if not such date is set forth therein, upon the date such
      notice shall be effective. If Administrative Agent delivers any such notice,
      the
      Required Lenders shall have the right to appoint a successor Administrative
      Agent. If, within 30 days after the retiring Administrative Agent having given
      notice of resignation, no successor Administrative Agent has been appointed
      by
      the Required Lenders that has accepted such appointment, then the retiring
      Administrative Agent may, on behalf of the Lenders, appoint a successor
      Administrative Agent from among the Lenders. Each appointment under this clause
      (a) shall be
      subject to the prior consent of Borrowers, which may not be unreasonably
      withheld but shall not be required during the continuance of a
      Default.


42




(b)  Effective
      immediately upon its resignation, (i) the retiring Administrative Agent shall
      be
      discharged from its duties and obligations under the Loan Documents, (ii) the
      Lenders shall assume and perform all of the duties of Administrative Agent
      until
      a successor Administrative Agent shall have accepted a valid appointment
      hereunder, (iii) the retiring Administrative Agent and its Related Persons
      shall no longer have the benefit of any provision of any Loan Document other
      than with respect to any actions taken or omitted to be taken while such
      retiring Administrative Agent was, or because such Administrative Agent had
      been, validly acting as Administrative Agent under the Loan Documents and (iv)
      subject to its rights under Section 12.3 ,
      the
      retiring Administrative Agent shall take such action as may be reasonably
      necessary to assign to the successor Administrative Agent its rights as
      Administrative Agent under the Loan Documents. Effective immediately upon its
      acceptance of a valid appointment as Administrative Agent, a successor
      Administrative Agent shall succeed to, and become vested with, all the rights,
      powers, privileges and duties of the retiring Administrative Agent under the
      Loan Documents.




Section
      12.10  Release
      of Collateral or Guarantors .
      Each
      Lender hereby consents to the release and hereby directs Administrative Agent
      to
      release any
      Lien
      held by Administrative Agent for the benefit of the Secured Parties against
      all
      of the Collateral and all Credit Parties, upon the Termination Date. Each
      Lender hereby directs Administrative Agent, and Administrative Agent hereby
      agrees, upon receipt of reasonable advance notice from Borrowers, to execute
      and
      deliver or file such documents and to perform other actions reasonably necessary
      to release the guaranties and Liens when and as directed in this Section 12.10 .




Section
      12.11  Additional
      Secured Parties .
      The
      benefit of the provisions of the Loan Documents directly relating to the
      Collateral or any Lien granted thereunder shall extend to and be available
      to
      any Secured Party that is not a Lender as long as, by accepting such benefits,
      such Secured Party agrees, as among Administrative Agent and all other Secured
      Parties, that such Secured Party is bound by (and, if requested by
      Administrative Agent, shall confirm such agreement in a writing in form and
      substance acceptable to Administrative Agent) this Article XII , Section 13.8 , Section 13.9 and Section 13.22 and the
      decisions and actions of Administrative Agent and the Required Lenders (or,
      where expressly required by the terms of this Agreement, a greater proportion
      of
      the Lenders) to the same extent a Lender is bound; provided , however ,
      that,
      notwithstanding the foregoing, (a) such Secured Party shall be bound by Section 12.8 only to
      the extent of Liabilities, costs and expenses with respect to or otherwise
      relating to the Collateral held for the benefit of such Secured Party, in which
      case the obligations of such Secured Party thereunder shall not be limited
      by
      any concept of Pro Rata Share or similar concept, (b) each of Administrative
      Agent, the Lenders shall be entitled to act at its sole discretion, without
      regard to the interest of such Secured Party, regardless of whether any
      Obligation to such Secured Party thereafter remains outstanding, is deprived
      of
      the benefit of the Collateral, becomes unsecured or is otherwise affected or
      put
      in jeopardy thereby, and without any duty or liability to such Secured Party
      or
      any such Obligation and (c) such Secured Party shall not have any right to
      be
      notified of, consent to, direct, require or be heard with respect to, any action
      taken or omitted in respect of the Collateral or under any Loan
      Document.




ARTICLE
      XIII





MISCELLANEOUS




Section
      13.1  Modification
      of Agreement ,
      Amendments, Waivers, Etc .
      (a) No amendment or waiver of any provision of any Loan Document (other
      than the Fee Letter) and no consent to any departure by any Credit Party
      therefrom shall be effective unless the same shall be in writing and signed
      (1)
      in the case of an amendment, consent or waiver to cure any ambiguity, omission,
      defect or inconsistency or granting a new Lien for the benefit of the Secured
      Parties or extending an existing Lien over additional property, by
      Administrative Agent and Borrowers and any other Credit Party which is a party
      to such agreement, (2) in the case of any other waiver or consent, by the
      Required Lenders (or by Administrative Agent with the consent of the Required
      Lenders) and (3) in the case of any other amendment, by the Required Lenders
      (or
      by Administrative Agent with the consent of the Required Lenders) and Borrowers
      and any other Credit Party which is a party to such agreement; provided , however ,
      that no
      amendment, consent or waiver described in clause (2) or (3) above
      shall, unless in writing and signed by each Lender directly affected thereby
      (or
      by Administrative Agent with the consent of such Lender), in addition to any
      other Person the signature of which is otherwise required pursuant to any Loan
      Document, do any of the following:




(i)  waive
      any
      condition specified in Section 3.1 ,
      except
      any condition referring to any other provision of any Loan
      Document;


43




(ii)  increase
      the Delayed Draw Term Loan Commitment of such Lender or subject such Lender
      to
      any additional obligation;




(iii)  reduce
      (including through release, forgiveness, assignment or otherwise) (A) the
      principal amount of, the interest rate on, or any obligation of Borrowers to
      repay (whether or not on a fixed date), any outstanding Loan owing to such
      Lender or (B) any Fee or accrued interest payable to such Lender; provided , however ,
      that
      this clause (iii) does not
      apply to (x) any change to any provision increasing any interest rate or
      Fee during the continuance of an Event of Default or to any payment of any
      such
      increase or (y) any modification to any financial covenant set forth in Article V or in
      any definition set forth therein or principally used therein;




(iv)  waive
      or
      postpone any scheduled maturity date or other scheduled date fixed for the
      payment, in whole or in part, of principal of or interest on any Loan or Fee
      owing to such Lender or for the reduction of such Lender’s Delayed Draw Term
      Loan Commitment; provided , however ,
      that
      this clause (iv) does not
      apply to any change to mandatory prepayments, including those required under Section 2.5 ,
      or to
      the application of any payment, including as set forth in Section 2.10 ;




(v)  except
      as
      provided in Section 12.10 ,
      release
      all or substantially all of the Collateral or any Guarantor from its guaranty
      of
      any Obligation of any Borrower;




(vi)  reduce
      or
      increase the proportion of Lenders required for the Lenders (or any subset
      thereof) to take any action hereunder or change the definition of the terms
      “Required Lenders”, “Pro Rata Share” or “Pro Rata Outstandings”; or




(vii)  amend Section 12.10 , Section 13.9 or this Section 13.1 ;




and provided , further ,
      that no
      amendment, waiver or consent shall affect the rights or duties under any Loan
      Document of, or any payment to, Administrative Agent (or otherwise modify any
      provision of Article XII or the
      application thereof) or any SPV that has been granted an option pursuant to Section 13.2(f) unless
      in writing and signed by Administrative Agent or such SPV in addition to any
      signature otherwise required and (z) the consent of Borrowers shall not be
      required to change any order of priority set forth in Section 2.10 .




(b)  Each
      waiver or consent under any Loan Document 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 shall entitle any Credit Party to any notice
      or
      demand in the same, similar or other circumstances. No failure on the part
      of
      any Secured Party to exercise, and no delay in exercising, any right hereunder
      shall operate as a waiver thereof, nor shall any single or partial exercise
      of
      any such right preclude any other or further exercise thereof or the exercise
      of
      any other right.




Section
      13.2  Binding
      Effect; Assignments and Participations .
      (a) Binding
      Effect .
      This
      Agreement shall become effective when it shall have been executed by Borrowers,
      each other Credit Party and Administrative Agent and when Administrative Agent
      shall have been notified by each Lender that such Lender has executed it.
      Thereafter, it shall be binding upon and inure to the benefit of, but only
      to
      the benefit of, Borrowers and each other Credit Party (in each case except
      for Article XII ),
      Administrative Agent, each Lender and, to the extent provided in Section 13.11 ,
      each
      other Indemnitee and Secured Party and, in each case, their respective
      successors and permitted assigns. Except as expressly provided in any Loan
      Document (including in Section 12.9 ),
      none
      of Borrowers, any other Credit Party, or Administrative Agent shall have the
      right to assign any rights or obligations hereunder or any interest
      herein .


44


(b)  Right
      to Assign .
      Each
      Lender may sell, transfer, negotiate or assign all or a portion of its rights
      and obligations hereunder (including all or a portion of its Delayed Draw Term
      Loan Commitments and its rights and obligations with respect to Loans) to
      (i) any existing Lender, (ii) any Affiliate or Approved Fund of any existing
      Lender or (iii) any other Person acceptable (which acceptance shall not be
      unreasonably withheld or delayed) to Administrative Agent and, as long as no
      Event of Default is continuing, Borrowers; provided , however ,
      that  (x)
      such
      Sales must be ratable among the obligations owing to and owed by such Lender
      with respect to the Delayed Draw Term Loan Facility and (y) for the Delayed
      Draw
      Term Loan Facility, the aggregate outstanding principal amount (determined
      as of
      the effective date of the applicable Assignment) of the Loans, Delayed Draw
      Term
      Loan Commitments subject to any such Sale shall be an integral multiple of
      $1,000,000, unless such Sale is made to an existing Lender or an Affiliate
      or
      Approved Fund of any existing Lender, is of the assignor’s (together with its
      Affiliates and Approved Funds) entire interest in such Facility or is made
      with
      the prior consent of Borrowers and Administrative Agent.




(c)  Procedure .
      The
      parties to each Sale made in reliance on clause
      (b) above
      (other than those described in clause
      (e) or (f) below)
      shall execute and deliver to Administrative Agent (which shall keep a copy
      thereof) an Assignment, together with any existing Note subject to such Sale
      (or
      any affidavit of loss therefor acceptable to Administrative Agent), any tax
      forms required to be delivered pursuant to Section 2.13(f) and
      payment by the assignee of an assignment fee in the amount of $3,500. Upon
      receipt of all the foregoing, and conditioned upon such receipt and upon
      Administrative Agent consenting to such Assignment, from and after the effective
      date specified in such Assignment, Administrative Agent shall record or cause
      to
      be recorded in the Register the information contained in such
      Assignment.




(d)  Effectiveness .
      Effective upon the entry of such record in the Register, (i) such assignee
      shall become a party hereto and, to the extent that rights and obligations
      under
      the Loan Documents have been assigned to such assignee pursuant to such
      Assignment, shall have the rights and obligations of a Lender, (ii) any
      applicable Note shall be transferred to such assignee through such entry and
      (iii) the assignor thereunder shall, to the extent that rights and obligations
      under this Agreement have been assigned by it pursuant to such Assignment,
      relinquish its rights (except for those surviving the termination of the Delayed
      Draw Term Loan Commitments and the payment in full of the Obligations) and
      be
      released from its obligations under the Loan Documents, other than those
      relating to events or circumstances occurring prior to such assignment (and,
      in
      the case of an Assignment covering all or the remaining portion of an assigning
      Lender’s rights and obligations under the Loan Documents, such Lender shall
      cease to be a party hereto except that each Lender agrees to remain bound by Article XII , Section 13.8 and Section 13.9 to the
      extent provided in Section 12.11 ).




(e)  Grant
      of Security Interests .
      In
      addition to the other rights provided in this Section 13.2 ,
      each
      Lender may grant
      a
      security interest in, or otherwise assign as collateral, any of its rights
      under
      this Agreement, whether now owned or hereafter acquired (including rights to
      payments of principal or interest on the Loans), to (A) any federal reserve
      bank
      (pursuant to Regulation A of the Federal Reserve Board), without notice to
      Administrative Agent or (B) any holder of, or trustee for the benefit of
      the holders of, such Lender’s Securities by notice to Administrative Agent; provided , however ,
      that no
      such holder or trustee, whether because of such grant or assignment or any
      foreclosure thereon (unless such foreclosure is made through an assignment
      in
      accordance with clause
      (b) above),
      shall be entitled to any rights of such Lender hereunder and no such Lender
      shall be relieved of any of its obligations hereunder.


45




(f)  Participants
      and SPVs . In
      addition to the other rights provided in this Section 13.2 ,
      each
      Lender may, (x) with notice to Administrative Agent, grant to an SPV the option
      to make all or any part of any Loan that such Lender would otherwise be required
      to make hereunder (and the exercise of such option by such SPV and the making
      of
      Loans pursuant thereto shall satisfy the obligation of such Lender to make
      such
      Loans hereunder) and such SPV may assign to such Lender the right to receive
      payment with respect to any Obligation and (y) without notice to or consent
      from Administrative Agent or Borrowers, sell participations to one or more
      Persons in or to all or a portion of its rights and obligations under the Loan
      Documents (including all its rights and obligations with respect to the Delayed
      Draw Term Loans); provided , however ,
      that,
      whether as a result of any term of any Loan Document or of such grant or
      participation, (i) no such SPV or participant shall have a commitment, or be
      deemed to have made an offer to commit, to make Loans hereunder, and, except
      as
      provided in the applicable option agreement, none shall be liable for any
      obligation of such Lender hereunder, (ii) such Lender’s rights and obligations,
      and the rights and obligations of the Credit Parties and the Secured Parties
      towards such Lender, under any Loan Document shall remain unchanged and each
      other party hereto shall continue to deal solely with such Lender, which shall
      remain the holder of the Obligations in the Register, except that (A) each
      such
      participant and SPV shall be entitled to the benefit of Sections 2.12 and 2.13 ,
      but
      only to the extent such participant or SPV delivers the tax forms such Lender
      is
      required to collect pursuant to Section 2.13(f) and then
      only to the extent of any amount to which such Lender would be entitled in
      the
      absence of any such grant or participation and (B) each such SPV may receive
      other payments that would otherwise be made to such Lender with respect to
      Loans
      funded by such SPV to the extent provided in the applicable option agreement
      and
      set forth in a notice provided to Administrative Agent by such SPV and such
      Lender, provided , however ,
      that in
      no case (including pursuant to clause
      (A) or (B) above)
      shall an SPV or participant have the right to enforce any of the terms of any
      Loan Document, and (iii) the consent of such SPV or participant shall not be
      required (either directly, as a restraint on such Lender’s ability to consent
      hereunder or otherwise) for any amendments, waivers or consents with respect
      to
      any Loan Document or to exercise or refrain from exercising any powers or rights
      such Lender may have under or in respect of the Loan Documents (including the
      right to enforce or direct enforcement of the Obligations), except for those
      described in clauses (iii) and (iv) of Section 13.1(a) with
      respect to amounts, or dates fixed for payment of amounts, to which such
      participant or SPV would otherwise be entitled and, in the case of participants,
      except for those described in Section 13.1(a)(v) (or
      amendments, consents and waivers with respect to Section 12.10 to
      release all or substant ially
      all
      of the Collateral). No party
      hereto shall institute (and Borrowers shall cause each other Credit Party not
      to
      institute) against any SPV grantee of an option pursuant to this clause
      (f) any
      bankruptcy, reorganization, insolvency, liquidation or similar proceeding,
      prior
      to the date that is one year and one day after the payment in full of all
      outstanding commercial paper of such SPV; provided, however, that each Lender
      having designated an SPV as such agrees to indemnify each Indemnitee against
      any
      Liability that may be incurred by, or asserted against, such Indemnitee as
      a
      result of failing to institute such proceeding (including a failure to get
      reimbursed by such SPV for any such Liability). The agreement in the preceding
      sentence shall survive the termination of the Delayed Draw Term Loan Commitments
      and the payment in full of the Obligations.




Section
      13.3  Costs
      and Expenses .
      Any
      action taken by any Credit Party under or with respect to any Loan Document,
      even if required under any Loan Document or at the request of any Secured Party,
      shall be at the expense of such Credit Party, and no Secured Party shall be
      required under any Loan Document to reimburse any Credit Party therefor. In
      addition, Borrowers jointly and severally agree to pay or reimburse upon demand
      (a) Administrative Agent for all reasonable, documented, out-of-pocket
      costs and expenses incurred by it or any of its Related Persons in connection
      with the investigation, development, preparation, negotiation, syndication,
      execution, interpretation or administration of (including the forwarding to
      Borrowers or any other Person on behalf of Borrowers by Administrative Agent
      of
      the proceeds of any Loan (including a wire transfer fee of $25 per wire
      transfer)), any modification of any term of or termination of, any Loan
      Document, any commitment or proposal letter therefor, any other document
      prepared in connection therewith or the consummation and administration of
      any
      transaction contemplated therein (including periodic audits in connection
      therewith and environmental audits and assessments), in each case including
      the
      reasonable fees, charges and disbursements of legal counsel to Administrative
      Agent, (b) Administrative Agent for all reasonable, documented, costs and
      expenses incurred by it or any of its Related Persons in connection with
      internal audit reviews, field examinations and Collateral examinations (which
      shall be reimbursed, in addition to the out-of-pocket costs and expenses of
      such
      examiners, at the per diem rate per individual charged by Administrative Agent
      for its examiners) and (c) each of Administrative Agent, its Related Persons,
      and each Lender and for all costs and expenses incurred in connection with
      (i)
      any refinancing or restructuring of the credit arrangements provided hereunder
      in the nature of a “work-out”, (ii) the enforcement or preservation of any right
      or remedy under any Loan Document, any Obligation, with respect to the
      Collateral or any other related right or remedy or (iii) the commencement,
      defense, conduct of, intervention in, or the taking of any other action with
      respect to, any proceeding (including any bankruptcy or insolvency proceeding)
      related to any Credit Party, Loan Document, Obligation or any other transaction
      consummated on the Closing Date (or the response to and preparation for any
      subpoena or request for document production relating thereto), including fees
      and disbursements of counsel .


46




Section
      13.4  Indemnities .
      (a)
      Borrower jointly and severally agree to indemnify, hold harmless and defend
      Administrative Agent, each Lender, and each of their respective Related Persons
      (each such Person being an “ Indemnitee ”)
      from
      and against all Liabilities (including brokerage commissions, fees and other
      compensation) that may be imposed on, incurred by or asserted against any such
      Indemnitee in any matter relating to or arising out of, in connection with
      or as
      a result of (i) any Loan Document, the Purchase Agreement, any Obligation (or
      the repayment thereof), the use or intended use of the proceeds of any Loan
      or
      any securities filing of, or with respect to, any Credit Party, (ii) any
      commitment letter, proposal letter or term sheet with any Person or any
      Contractual Obligation, arrangement or understanding with any broker, finder
      or
      consultant, in each case entered into by or on behalf of any Credit Party or
      any
      Affiliate of any of them in connection with any of the foregoing and any
      Contractual Obligation entered into in connection with any E-Systems or other
      Electronic Transmissions, (iii) any actual or prospective investigation,
      litigation or other proceeding, whether or not brought by any such Indemnitee
      or
      any of its Related Persons, any holders of Securities or creditors (and
      including attorneys’ fees in any case), whether or not any such Indemnitee,
      Related Person, holder or creditor is a party thereto, and whether or not based
      on any securities or commercial law or regulation or any other Requirement
      of
      Law or theory thereof, including common law, equity, contract, tort or otherwise
      or (iv) any other act, event or transaction related, contemplated in or
      attendant to any of the foregoing (collectively, the “ Indemnified
      Matters ”); provided , however ,
      that
      (x) Borrowers shall not have any liability under this Section 13.4 to any
      Indemnitee with respect to any Indemnified Matter if, and (y) no Indemnitee
      shall have any liability with respect to any Indemnified Matter (as to which
      such Indemnitee would otherwise be liable), other than to the extent such
      liability has resulted primarily from the gross negligence or willful misconduct
      of such Indemnitee, as determined by a court of competent jurisdiction in a
      final non-appealable judgment or order. Furthermore, each Borrower and each
      other Credit Party executing this Agreement waives and agrees not to assert
      against any Indemnitee, and shall cause each other Credit Party to waive and
      not
      assert against any Indemnitee, any right of contribution with respect to any
      Liabilities that may be imposed on, incurred by or asserted against any Related
      Person.




(b)  Without
      limiting the foregoing, “ Indemnified
      Matters ”
      includes all Environmental Liabilities, including those arising from, or
      otherwise involving, any property of any Related Person or any actual, alleged
      or prospective damage to property or natural resources or harm or injury alleged
      to have resulted from any Release of Hazardous Materials on, upon or into such
      property or natural resource or any property on or contiguous to any real
      property of any Related Person, whether or not, with respect to any such
      Environmental Liabilities, any Indemnitee is a mortgagee pursuant to any
      leasehold mortgage, a mortgagee in possession, the successor-in-interest to
      any
      Related Person or the owner, lessee or operator of any property of any Related
      Person through any foreclosure action, in each case except to the extent such
      Environmental Liabilities (i) are incurred solely following foreclosure by
      any
      Secured Party or following any Secured Party having become the
      successor-in-interest to any Credit Party and (ii) are attributable solely
      to acts of such Indemnitee.




Section
      13.5  Survival .
      Any
      indemnification or other protection provided to any Indemnitee pursuant to
      any
      Loan Document (including pursuant to Sections
      2.12 , 2.13 , 13.3 , 13.4 or this 13.5 and Article
      XII )
      and all
      representations and warranties made in any Loan Document shall (a) survive
      the Termination Date and (b) inure to the benefit of any Person that at any
      time
      held a right thereunder (as an Indemnitee or otherwise) and, thereafter, its
      successors and permitted assigns.




Section
      13.6  Limitation
      of Liability for Certain Damages .
      In no
      event shall any Indemnitee be liable on any theory of liability for any special,
      indirect, consequential or punitive damages (including any loss of profits,
      business or anticipated savings). Each Borrower and each other Credit Party
      signatory hereto hereby waives, releases and agrees (and shall cause each other
      Credit Party to waive, release and agree) not to sue upon any such claim for
      any
      special, indirect, consequential or punitive damages, whether or not accrued
      and
      whether or not known or suspected to exist in its favor.




Section
      13.7  Lender-Creditor
      Relationship .
      The
      relationship between the Lenders and Administrative Agent, on the one hand,
      and
      the Credit Parties, on the other hand, is solely that of lender and creditor.
      No
      Secured Party has any fiduciary relationship or duty to any Credit Party arising
      out of or in connection with, and there is no agency, tenancy or joint venture
      relationship between the Secured Parties and the Credit Parties by virtue of,
      any Loan Document or any transaction contemplated therein.




Section
      13.8  Right
      of Setoff .
      Each of
      Administrative Agent, each Lender and each Affiliate (including each branch
      office thereof) of any of them is hereby authorized, without notice or demand
      (each of which is hereby waived by each Borrower), at any time and from time
      to
      time during the continuance of any Event of Default and to the fullest extent
      permitted by applicable Requirements of Law, to set off and apply any and all
      deposits (whether general or special, time or demand, provisional or final)
      at
      any time held and other Indebtedness, claims or other obligations at any time
      owing by Administrative Agent, such Lender or any of their respective Affiliates
      to or for the credit or the account of Borrowers against any Obligation of
      any
      Credit Party now or hereafter existing, whether or not any demand was made
      under
      any Loan Document with respect to such Obligation and even though such
      Obligation may be unmatured. Each of Administrative Agent, each Lender agrees
      promptly to notify Borrowers and Administrative Agent after any such setoff
      and
      application made by such Lender or its Affiliates; provided , however ,
      that
      the failure to give such notice shall not affect the validity of such setoff
      and
      application. The rights under this Section 13.8 are in
      addition to any other rights and remedies (including other rights of setoff)
      that Administrative Agent, the Lenders and their Affiliates and other Secured
      Parties may have.


47




Section
      13.9  Sharing
      of Payments, Etc .
      If any
      Lender, directly or through an Affiliate or branch office thereof, obtains
      any
      payment of any Obligation of any Credit Party (whether voluntary, involuntary
      or
      through the exercise of any right of setoff or the receipt of any Collateral
      or
“ proceeds ”
(as
      defined under the applicable UCC) of Collateral) other than pursuant to Sections 2.12 , 2.13 and 2.14 and such
      payment exceeds the amount such Lender would have been entitled to receive
      if
      all payments had gone to, and been distributed by, Administrative Agent in
      accordance with the provisions of the Loan Documents, such Lender shall purchase
      for cash from other Secured Parties such participations in their Obligations
      as
      necessary for such Lender to share such excess payment with such Secured Parties
      to ensure such payment is applied as though it had been received by
      Administrative Agent and applied in accordance with this Agreement (or, if
      such
      application would then be at the discretion of Borrowers, applied to repay
      the
      Obligations in accordance herewith) ; provided , however ,
      that
      (a) if such payment is rescinded or otherwise recovered from such Lender in
      whole or in part, such purchase shall be rescinded and the purchase price
      therefor shall be returned to such Lender without interest and (b) such Lender
      shall, to the fullest extent permitted by applicable Requirements of Law, be
      able to exercise all its rights of payment (including the right of setoff)
      with
      respect to such participation as fully as if such Lender were the direct
      creditor of Borrowers in the amount of such participation.




Section
      13.10  Marshaling;
      Payments Set Aside .
      No
      Secured Party shall be under any obligation to marshal any property in favor
      of
      any Credit Party or any other party or against or in payment of any Obligation.
      To the extent that any Secured Party receives a payment from Borrowers, from
      any
      other Credit Party, from the proceeds of the Collateral, from the exercise
      of
      its rights of setoff, any enforcement action or otherwise, and such payment
      is
      subsequently, in whole or in part, invalidated, declared to be fraudulent or
      preferential, set aside or required to be repaid to a trustee, receiver or
      any
      other party, then to the extent of such recovery, the obligation or part thereof
      originally intended to be satisfied, and all Liens, rights and remedies
      therefor, shall be revived and continued in full force and effect as if such
      payment had not occurred.




Section
      13.11  Notices .
      (a ) Addresses .
      All
      notices, demands, requests, directions and other communications required or
      expressly authorized to be made by this Agreement shall, whether or not
      specified to be in writing but unless otherwise expressly specified to be given
      by any other means, be given in writing and (i) addressed to (A) if to Borrowers
      or any Credit Party, to the address set forth for Borrowers on Schedule I hereto, (B)
      if to
      Administrative Agent, to the address set forth for the Administrative Agent
      on Schedule
      I hereto
      and (C) otherwise to the party to be notified at its address specified
      opposite its name on Schedule I or on
      the signature page of any applicable Assignment, (ii) posted to
      Intralinks ® (to
      the
      extent such system is available and set up by or at the direction of the
      Administrative Agent prior to posting) in an appropriate location by uploading
      such notice, demand, request, direction or other communication to *www.intralinks.com* ,
      faxing
      it to 866-545-6600 with an appropriate bar-coded fax coversheet or using such
      other means of posting to Intralinks ® as may
      be available and reasonably acceptable to Administrative Agent prior to such
      posting, (iii) posted to any other E-System set up by or at the direction of
      Administrative Agent in an appropriate location or (iv) addressed to such
      other address as shall be notified in writing (A) in the case of Borrowers,
      and
      Administrative Agent, to the other parties hereto and (B) in the case of all
      other parties, to Borrowers and Administrative Agent. Transmission by electronic
      mail (including E-Fax, even if transmitted to the fax numbers set forth in clause
      (i) above)
      shall not be sufficient or effective to transmit any such notice under this clause
      (a) unless
      such transmission is an available means to post to any E-System.




(b)  Effectiveness .
      All
      communications described in clause
      (a) above
      and all other notices, demands, requests and other communications made in
      connection with this Agreement shall be effective and be deemed to have been
      received (i) if delivered by hand, upon personal delivery, (ii) if delivered
      by
      overnight courier service, 1 Business Day after delivery to such courier
      service, (iii) if delivered by mail, when deposited in the mails, (iv) if
      delivered by facsimile (other than to post to an E-System pursuant to clause
      (a)(ii) or (a)(iii) above), upon sender’s receipt of confirmation of proper
      transmission and (v) if delivered by posting to any E-System, on the later
      of
      the date of such posting in and appropriate location and the date access to
      such
      posting is given to the recipient thereof in accordance with the standard
      procedures applicable to such E-System; provided , however ,
      that no
      communications to Administrative Agent pursuant to Article II shall be
      effective until received by Administrative Agent.


48




Section
      13.12  Electronic
      Transmissions .
      (a) Authorization .
      Subject
      to the provisions of Section 13.11(a) ,
      each of
      Administrative Agent, the Lenders, Borrowers and each of their Related Persons
      is authorized (but not required) to transmit, post or otherwise make or
      communicate, in its sole discretion, Electronic Transmissions in connection
      with
      any Loan Document and the transactions contemplated therein. Each party hereto
      and each other Secured Party hereby acknowledges and agrees that the use of
      Electronic Transmissions is not necessarily secure and that there are risks
      associated with such use, including risks of interception, disclosure and abuse
      and each indicates it assumes and accepts such risks by hereby authorizing
      the
      transmission of Electronic Transmissions.




(b)  Signatures .
      Subject
      to the provisions of Section 13.11(a) ,
      (i)(A)
      no posting to any E-System shall be denied legal effect merely because it is
      made electronically, (B) each E-Signature on any such posting shall be
      deemed sufficient to satisfy any requirement for a “signature” and (C) each
      such posting shall be deemed sufficient to satisfy any requirement for a
“writing”, in each case including pursuant to any Loan Document, any applicable
      provision of any UCC, the federal Uniform Electronic Transactions Act, the
      Electronic Signatures in Global and National Commerce Act and any substantive
      or
      procedural Requirement of Law governing such subject matter, (ii) each such
      posting that is not readily capable of bearing either a signature or a
      reproduction of a signature may be signed, and shall be deemed signed, by
      attaching to, or logically associating with such posting, an E-Signature, upon
      which each Secured Party and Credit Party may rely and assume the authenticity
      thereof, (iii) each such posting containing a signature, a reproduction of
      a
      signature or an E-Signature shall, for all intents and purposes, have the same
      effect and weight as a signed paper original and (iv) each party hereto or
      beneficiary hereto agrees not to contest the validity or enforceability of
      any
      posting on any E-System or E-Signature on any such posting under the provisions
      of any applicable Requirement of Law requiring certain documents to be in
      writing or signed; provided , however ,
      that
      nothing herein shall limit such party’s or beneficiary’s right to contest
      whether any posting to any E-System or E-Signature has been altered after
      transmission.




(c)  Separate
      Agreements .
      All
      uses of an E-System shall be governed by and subject to, in addition to Section 13.11 and this Section 13.12 ,
      separate terms and conditions posted or referenced in such E-System and related
      Contractual Obligations executed by Secured Parties and Credit Parties in
      connection with the use of such E-System.




(d)  LIMITATION
      OF LIABILITY .
      ALL
      E-SYSTEMS AND ELECTRONIC TRANSMISSIONS SHALL BE PROVIDED “AS IS” AND “AS
      AVAILABLE”. NONE OF ADMINISTRATIVE AGENT OR ANY OF ITS RELATED PERSONS WARRANTS
      THE ACCURACY, ADEQUACY OR COMPLETENESS OF ANY E-SYSTEMS OR ELECTRONIC
      TRANSMISSION AND DISCLAIMS ALL LIABILITY FOR ERRORS OR OMISSIONS THEREIN. NO
      WARRANTY OF ANY KIND IS MADE BY ADMINISTRATIVE AGENT OR ANY OF ITS RELATED
      PERSONS IN CONNECTION WITH ANY E-SYSTEMS OR ELECTRONIC COMMUNICATION, INCLUDING
      ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE,
      NON-INFRINGEMENT OF THIRD-PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE
      DEFECTS. **** Each
      Borrower and each other Credit Party executing this Agreement and each Secured
      Party agrees that Administrative Agent has no responsibility for maintaining
      or
      providing any equipment, software, services or any testing required in
      connection with any Electronic Transmission or otherwise required for any
      E-System.




Section
      13.13  Governing
      Law .
      The
      laws of the State of New York shall govern all matters arising out of, in
      connection with or relating to this Agreement, including, without limitation,
      its validity, interpretation, construction, performance and
      enforcement.




Section
      13.14  Jurisdiction .
      (a) Submission
      to Jurisdiction .
      Any
      legal action or proceeding with respect to any Loan Document may be brought
      in
      the courts of the State of New York located in the City of New York, Borough
      of
      Manhattan, or of the United States of America for the Southern District of
      New
      York and, by execution and delivery of this Agreement, each Borrower and each
      other Credit Party executing this Agreement hereby accepts for itself and in
      respect of its property, generally and unconditionally, the jurisdiction of
      the
      aforesaid courts. The parties hereto (and, to the extent set forth in any other
      Loan Document, each other Credit Party) hereby irrevocably waive any objection,
      including any objection to the laying of venue or based on the grounds of forum
      non conveniens ,
      that
      any of them may now or hereafter have to the bringing of any such action or
      proceeding in such jurisdictions.


49




(a)  Service
      of Process .
      Each
      Credit Party hereby irrevocably waives personal service of any and all legal
      process, summons, notices and other documents and other service of process
      of
      any kind and consents to such service in any suit, action or proceeding brought
      in the United States of America with respect to or otherwise arising out of
      or
      in connection with any Loan Document by any means permitted by applicable
      Requirements of Law, including by the mailing thereof (by registered or
      certified mail, postage prepaid) to the address of Borrowers specified in Schedule I (and
      shall be effective when such mailing shall be effective, as provided therein).
      Each Credit Party agrees that a final judgment in any such action or proceeding
      shall be conclusive and may be enforced in other jurisdictions by suit on the
      judgment or in any other manner provided by law.




(b)  Non-Exclusive
      Jurisdiction .
      Nothing
      contained in this Section 13.14 shall
      affect the right of Lender to serve process in any other manner permitted by
      applicable Requirements of Law or commence legal proceedings or otherwise
      proceed against any Credit Party in any other jurisdiction.




Section
      13.15  WAIVER
      OF JURY TRIAL .
      THE
      PARTIES HERETO, TO THE EXTENT PERMITTED BY LAW, WAIVE ALL RIGHT TO TRIAL BY
      JURY
      IN ANY ACTION, SUIT, OR PROCEEDING ARISING OUT OF, IN CONNECTION WITH OR
      RELATING TO, THIS AGREEMENT, THE OTHER LOAN DOCUMENTS AND ANY OTHER TRANSACTION
      CONTEMPLATED HEREBY AND THEREBY. THIS WAIVER APPLIES TO ANY ACTION, SUIT OR
      PROCEEDING WHETHER SOUNDING IN TORT, CONTRACT OR OTHERWISE.




The
      parties hereto intend and agree that the immediately preceding paragraph, in
      which the parties agree to waive their rights to a jury trial, is valid and
      shall be given effect. If, however, any action or proceeding is filed in a
      court
      of the State of California by or against any party hereto in connection with
      any
      of the transactions contemplated by this Agreement, any Loan Document or any
      document related hereto, and if, in that action or proceeding the immediately
      preceding paragraph is held to be invalid or unenforceable for any reason,
      the
      parties hereto hereby agree that this provision shall be the sole method for
      dispute resolution. If the immediately preceding paragraph is held to be invalid
      or unenforceable, the parties hereto agree that, pursuant to California Code
      of
      Civil Procedure Section 638, et seq. (collectively, “ Section 638 ”):




(a)  the
      parties hereto shall move the court to appoint one referee to hear and determine
      all of the issues in such action or proceeding (whether of fact or of law)
      and
      to report a statement of decision, provided that at the option of Lender, any
      such issues pertaining to a “provisional remedy” as defined in California Code
      of Civil Procedure Section 1281.8 shall be heard and determined by the
      court;




(b)  the
      parties shall base this request upon the fact that they are parties to a written
      contract that provides that any controversy arising therefrom shall be heard
      by
      a referee, and the parties hereto intend that this paragraph create a reference
      agreement within the meaning of Section 638;




(c)  the
      parties shall confer in good faith and seek to agree upon a referee and move
      that such person be appointed;




(d)  if
      the
      parties are unable to agree upon the person who shall serve as referee within
      30
      days following the filing of the complaint, then each party shall submit to
      the
      court within 30 days thereafter up to 3 nominees for appointment as referee
      and
      shall move the court to appoint 1 person from among the nominees against whom
      there is no legal objection; each person nominated by a party must either be
      (1)
      a former or retired judge with experience adjudicating commercial cases or
      (2)
      an attorney with at least 10 years of experience litigating commercial disputes;
      and




(e)  Borrowers
      shall jointly and severally be responsible to pay all fees and expenses of
      any
      referee appointed in such action or proceeding.




Section
      13.16  Severability .
      Any
      provision of any Loan Document being held illegal, invalid or unenforceable
      in
      any jurisdiction shall not affect any part of such provision not held illegal,
      invalid or unenforceable, any other provision of any Loan Document or any part
      of such provision in any other jurisdiction.


50




Section
      13.17  Execution
      in Counterparts .
      This
      Agreement may be executed in any number of counterparts and by different parties
      in separate counterparts, each of which when so executed shall be deemed to
      be
      an original and all of which taken together shall constitute one and the same
      agreement. Signature pages may be detached from multiple separate counterparts
      and attached to a single counterpart. Delivery of an executed signature page
      of
      this Agreement by facsimile transmission or Electronic Transmission shall be
      as
      effective as delivery of a manually executed counterpart hereof.




Section
      13.18  ENTIRE
      AGREEMENT .
      THE
      LOAN DOCUMENTS EMBODY THE ENTIRE AGREEMENT OF THE PARTIES AND SUPERSEDE ALL
      PRIOR AGREEMENTS AND UNDERSTANDINGS RELATING TO THE SUBJECT MATTER THEREOF
      AND
      ANY PRIOR LETTER OF INTEREST, COMMITMENT LETTER, FEE LETTER, CONFIDENTIALITY
      AND
      SIMILAR AGREEMENTS INVOLVING ANY CREDIT PARTY AND ANY OF ADMINISTRATIVE AGENT,
      ANY LENDER OR ANY OF THEIR RESPECTIVE AFFILIATES RELATING TO A FINANCING OF
      SUBSTANTIALLY SIMILAR FORM, PURPOSE OR EFFECT. IN THE EVENT OF ANY CONFLICT
      BETWEEN THE TERMS OF THIS AGREEMENT AND ANY OTHER LOAN DOCUMENT, THE TERMS
      OF
      THIS AGREEMENT SHALL GOVERN (UNLESS SUCH TERMS OF SUCH OTHER LOAN DOCUMENTS
      ARE
      NECESSARY TO COMPLY WITH APPLICABLE REQUIREMENTS OF LAW, IN WHICH CASE SUCH
      TERMS SHALL GOVERN TO THE EXTENT NECESSARY TO COMPLY THEREWITH).




Section
      13.19  Use
      of
      Name .
      Each
      Borrower and each other Credit Party executing this Agreement agrees, and shall
      cause each other Credit Party to agree, that it shall not, and none of its
      Affiliates shall, issue any press release or other public disclosure (other
      than
      any document filed with any Governmental Authority relating to a public offering
      of the Securities of any Credit Party) using the name, logo or otherwise
      referring to GE Capital or of any of its Affiliates, the Loan Documents or
      any
      transaction contemplated therein to which the Secured Parties are party without
      at least 2 Business Days’ prior notice to GE Capital and without the prior
      consent of GE Capital except to the extent required to do so under applicable
      Requirements of Law and then, only after consulting with GE Capital prior
      thereto.




Section
      13.20  Authorized
      Signature. Until
      Administrative Agent shall be notified in writing by Borrowers or any other
      Credit Party to the contrary, the signature upon any document or instrument
      delivered pursuant hereto and believed by Administrative Agent or any of
      Administrative Agent’s officers, agents, or employees to be that of an officer
      of Borrowers or such other Credit Party shall bind Borrowers and such other
      Credit Party and be deemed to be the act of Borrower or such other Credit Party
      affixed pursuant to and in accordance with resolutions duly adopted by
      Borrowers’ or such other Credit Party’s board of directors (or similar governing
      body), and Administrative Agent shall be entitled to assume the authority of
      each signature and authority of the person whose signature it is or appears
      to
      be unless the person acting in reliance thereon shall have actual knowledge
      to
      the contrary.




Section
      13.21  Time
      of the Essence .
      Time is
      of the essence for performance of the Obligations under the Loan
      Documents.




Section
      13.22  Non-Public
      Information; Confidentiality .
      (a)
      Each Lender acknowledges and agrees that it may receive material non-public
      information hereunder concerning the Credit Parties and their Affiliates and
      Securities and agrees to use such information in compliance with all relevant
      policies, procedures and Contractual Obligations and applicable Requirements
      of
      Law (including United States federal and state security laws and
      regulations).


51




(b)  Each
      Lender and Administrative Agent agrees to use all reasonable efforts to
      maintain, in accordance with its customary practices, the confidentiality of
      information obtained by it pursuant to any Loan Document and designated in
      writing by any Credit Party as confidential, except that such information may
      be
      disclosed (i) with Borrowers’ consent, (ii) to Related Persons of such Lender or
      Administrative Agent, as the case may be, that are advised of the confidential
      nature of such information and are instructed to keep such information
      confidential, (iii) to the extent such information presently is or hereafter
      becomes available to such Lender or Administrative Agent, as the case may be,
      on
      a non-confidential basis from a source other than any Credit Party, (iv) to
      the
      extent disclosure is required by applicable Requirements of Law or other legal
      process or requested or demanded by any Governmental Authority, (v) to the
      extent necessary or customary for inclusion in league table measurements or
      in
      any tombstone or other advertising materials (and the Credit Parties consent
      to
      the publication of such tombstone or other advertising materials by
      Administrative Agent, any Lender or any of their Related Persons), (vi) (A)
      to the National Association of Insurance Commissioners or any similar
      organization, any examiner or any nationally recognized rating agency or (B)
      otherwise to the extent consisting of general portfolio information that does
      not identify Borrowers, (vii) to current or prospective assignees, SPVs
      (including the investors therein) grantees of any option described in Section 13.2(f) or
      participants, in each case to the extent such assignees, investors,
      participants, or Related Persons agree to be bound by provisions substantially
      similar to the provisions of this Section 13.22 and
      (viii) in connection with the exercise of any remedy under any Loan Document.
      In
      the event of any conflict between the terms of this Section 13.22 and
      those of any other Contractual Obligation entered into with any Credit Party
      (whether or not a Loan Document), the terms of this Section 13.22 shall
      govern.




Section
      13.23  Patriot
      Act Notice .
      Each
      Lender subject to the USA Patriot Act of 2001 (31 U.S.C. 5318 et seq.) hereby
      notifies Borrowers that, pursuant to Section 326 thereof, it is required to
      obtain, verify and record information that identifies Borrowers, including
      the
      name and address of each Borrower and other information allowing such Lender
      to
      identify each Borrower in accordance with such act.




Section
      13.24  Subordination
      of Intercompany Obligations .




(a)  Each
      Credit Party executing this Agreement covenants and agrees that the payment
      of
      all indebtedness, principal, interest (including interest which accrues after
      the commencement of any case or proceeding in bankruptcy, or for the
      reorganization of any Credit Party), fees, charges, expenses, attorneys’ fees
      and any other sum, obligation or liability owing by any Credit Party to any
      other Credit Party, including, without limitation, the Parent Advances
      (collectively, the “ Subordinated
      Intercompany Obligations ”),
      is
      subordinated, to the extent and in the manner provided in this Section
      13.24 ,
      to the
      prior payment in full of all Obligations (herein, the “ Senior
      Obligations ”)
      and
      that the subordination is for the benefit of the Administrative Agent and
      Lenders, and Administrative Agent may enforce such provisions
      directly.




(b)  Each
      Credit Party executing this Agreement hereby (i) authorizes Administrative
      Agent
      to demand specific performance of the terms of this Section
      13.24 ,
      whether
      or not any other Credit Party shall have complied with any of the provisions
      hereof applicable to it, at any time when such Credit Party shall have failed
      to
      comply with any provisions of this Section
      13.24 which
      are applicable to it and (ii) irrevocably waives any defense based on the
      adequacy of a remedy at law, which might be asserted as a bar to such remedy
      of
      specific performance.




(c)  Upon
      any
      distribution of assets of any Credit Party in any dissolution, winding up,
      liquidation or reorganization (whether in bankruptcy, insolvency or receivership
      proceedings or upon an assignment for the benefit of creditors or
      otherwise):




(i)  The
      Administrative Agent and Lenders shall first be entitled to receive payment
      in
      full in cash of the Obligations before any Credit Party is entitled to receive
      any payment on account of the Subordinated Intercompany
      Obligations.




(ii)  Any
      payment or distribution of assets of any Credit Party of any kind or character,
      whether in cash, property or securities, to which any other Credit Party would
      be entitled except for the provisions of this Section
      13.24 ,
      shall
      be paid by the liquidating trustee or agent or other Person making such payment
      or distribution directly to the Administrative Agent, to the extent necessary
      to
      make payment in full of all Senior Obligations remaining unpaid after giving
      effect to any concurrent payment or distribution or provisions therefor to
      the
      Administrative Agent and Lenders.




(iii)  In
      the
      event that notwithstanding the foregoing provisions of this Section
      13.24 ,
      any
      payment or distribution of assets of any Credit Party of any kind or character,
      whether in cash, property or securities, shall be received by any other Credit
      Party on account of the Subordinated Intercompany Obligations before all Senior
      Obligations are paid in full, such payment or distribution shall be received
      and
      held in trust for and shall be paid over to the Administrative Agent for
      application to the payment of the Senior Obligations until all of the Senior
      Obligations shall have been paid in full, after giving effect to any concurrent
      payment or distribution or provision therefor to the Administrative Agent and
      Lenders.


52




(iv)  No
      right
      of the Administrative Agent and Lenders or any other present or future holders
      of any Senior Obligations to enforce the subordination provisions herein shall
      at any time in any way be prejudiced or impaired by any act or failure to act
      on
      the part of any Credit Party or by any act or failure to act, in good faith,
      by
      any such holder, or by any noncompliance by Parent with the terms hereof,
      regardless of any knowledge thereof which any such holder may have or be
      otherwise charged with.




**[** THE
      REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK **]**


53


IN
      WITNESS WHEREOF, this Loan and Security Agreement has been duly executed as
      of
      the date first written above.




**CHULA
                VISTA BORROWER**MMC
                CHULA VISTA II LLCBy:
                MMC Energy, Inc., its sole MemberBy:
            /s/
                Denis GagnonName:
            Denis
                GagnonTitle:
            Chief
                Financial Officer**ESCONDIDO
                BORROWER**MMC
                ESCONDIDO II LLCBy:
                MMC Energy, Inc., its sole MemberBy:
            /s/
                Denis GagnonName:
            Denis
                GagnonTitle:
            Chief
                Financial Officer**PARENT**MMC
                ENERGY, INC.By:
            /s/
                Denis GagnonName:
            Denis
              GagnonTitle:
            Chief
                Financial Officer**ADMINISTRATIVE
                AGENT**GENERAL
                ELECTRIC CAPITALCORPORATIONBy:
            /s/
              Matthew A. Toth, IIIName:
            Matthew A.
              Toth,
              IIITitle:
            Duly
                Authorized Signatory**LENDERS**GENERAL
                ELECTRIC CAPITALCORPORATIONBy:
            /s/
              Matthew A. Toth, IIIName:
            Matthew A.
              Toth,
              IIITitle:
            Duly
                Authorized Signatory


54


****SCHEDULE I****




****ADMINISTRATIVE
      AGENT’S, LENDERS’ AND BORROWERS’ ADDRESSES FOR
      NOTICES****




Administrative
      Agent’s Address




Name:
            General
                Electric Capital CorporationAddress:
            120
                Long Ridge Road
              Stamford,
                Connecticut 06927Attn:
            Mr.
                Osvaldo Rubio, EFS Account ManagerTelephone:
            (203)
                961-5321Facsimile:
            (513)
                204-3798with
                a copy to:
            Paul,
                Hastings, Janofsky & Walker LLP
              75
                East 55th Street
              New
                York, New York, 10022
              Attention:
                Mario J. Ippolito
              Telecopier
                No.: (212) 230-7848
              Telephone
                No.: (212) 318-6420




Lenders’
      Addresses:




Name:
            General
                Electric Capital CorporationAddress:
            120
                Long Ridge Road
              Stamford,
                Connecticut 06927Attn:
            Mr.
                Osvaldo Rubio, EFS Account ManagerTelephone:
            (203)
                961-5321Facsimile:
            (513)
                204-3798Delayed
                Draw Term Loan Commitment
              Percentage:
            100%




Borrowers
      Address:




Chula
      Vista Borrower’s Address




Name:
            MMC
                Chula Vista II LLCAddress:
            26
                Broadway, Suite 960
              New
                York, NY 10004Attn:
            Dennis
                GagnonTelephone:
            (212)
                785-5478Facsimile:
            (212)
                785-7640With
                a copy to:
            DLA
                Piper US LLP
              1251
                Avenue of the Americas
              New
                York, New York, 10020
              Attention:
                Dean Colucci
              Telecopier
                No.: (212) 884-8494
              Telephone
                No.: (212) 335-4794









MMC
      Escondido Borrower’s Address:




Name:
            MMC
                Escondido II LLCAddress:
            26
                Broadway, Suite 960
              New
                York, NY 10004Attn:
            Dennis
                GagnonTelephone:
            (212)
                785-5478Facsimile:
            (212)
                785-7640With
                a copy to:
            DLA
                Piper US LLP
              1251
                Avenue of the Americas
              New
                York, New York, 10020
              Attention:
                Dean Colucci
              Telecopier
                No.: (212) 884-8494
              Telephone
                No.: (212) 335-4794










**SCHEDULE
      4.3**




**LOCATIONS;
      CORPORATE OR OTHER NAMES**




Chula
      Vista Borrower




A. Official
      Legal Name :  MMC
      Chula
      Vista II LLC




B. Type
      of Entity (corporation, partnership, etc.) :  Limited
      liability company




C. Organization
      Identification Number :  4491832




D. State
      of Organization or Incorporation :  Delaware




E. Location
      of chief executive office, corporate offices, warehouses and other locations
      of
      Collateral and locations


of
      records with respect to Collateral : 26
      Broadway, Suite 960


New
      York,
      NY 10004





F. Prior
      legal or trades names of the Borrower during past 5 years :




N/A




Escondido
      Borrower




A. Official
      Legal Name :  MMC
      Escondido II LLC




B. Type
      of Entity (corporation, partnership, etc.) :  Limited
      liability company




C. Organization
      Identification Number :  4491829




D. State
      of Organization or Incorporation :  Delaware







E. Location
      of chief executive office, corporate offices, warehouses and other locations
      of
      Collateral and locations


of
      records with respect to Collateral : 26
      Broadway, Suite 960


New
      York, NY 10004




F. Prior
      legal or trades names of the Borrower during past 5 years :




N/A








**SCHEDULE
      4.17**




**INSURANCE**




Part
      I
– List of Policies :





Provide
      details here and attach copies of insurance certificates representing all
      coverages.





Part
      II – Insurance Requirements :





Coverage. The
      Borrowers shall procure, maintain or caused to be maintained in full force
      and
      effect the following minimum insurance coverages, at their sole expense, as
      set
      forth below. All such insurance carried shall be placed with such insurers
      having a minimum A.M. Best rating of A:X, and be in such form, with such other
      terms, conditions, limits and deductibles (subject to the minimum insurance
      coverages below) and such other or additional insurance to cover increases
      or
      changes in risks, policy limits, policy coverages or otherwise are from time
      to
      time insured against for properties which Administrative Agent may reasonably
      require:





(A)
            All
                Risk Property Insurance.All risk property insurance covering each and every component of
                the
                Equipment against physical loss or damage, including but not limited
                to
                fire and lightning, extended coverage, collapse, flood, earth movement
                and
                blanket comprehensive boiler and machinery coverage, malicious mischief,
                and against certified and non-certified acts of terrorism. Such insurance
                shall include coverage for all property during on and off site storage
                and
                during inland transit on a “warehouse to warehouse” basis. Such insurance
                coverage shall be written on a replacement cost basis in an amount
                equal
                to either full replacement cost values. Such insurance policy shall
                include an agreed amount endorsement waiving any coinsurance
                penalty.





(B)
            Marine
                Ocean Cargo.Marine ocean cargo insurance covering each and every component of
                the
                Equipment against physical loss or damage shipped by waterborne or
                air
                transit. Such insurance coverage shall be written on a “warehouse to
                warehouse” basis covering all risk of loss or damage including war risk,
                strikes, riots and civil commotion. Such insurance coverage shall
                include
                a 50/50 clause with All Risk Property Insurance, ninety (90) days
                concealed damage discovery, and extra/expediting expenses. Such insurance
                coverage shall include a per conveyance limit of not less than the
                full
                replacement value of each shipment. Such insurance coverage may be
                subject
                to deductibles not to exceed $100,000 for each and every
                occurrence.





(C)
            Commercial
                or Comprehensive General Liability Insurance.Commercial general liability insurance written on an occurrence basis
                with
                a limit of liability of not less than $1,000,000. Such insurance
                shall
                include, but not be limited to, coverage for premises/operations,
                explosion, collapse, underground hazards, sudden and accidental pollution,
                contractual liability, independent contractors, products/completed
                operations, property damage and personal injury liability. Such insurance
                coverage shall not include exclusions for punitive or exemplary damages
                where insurable under law.





(D)
            Workers’
                Compensation/Employer’s Liability.If
                the Borrowers have any employees, such shall maintain Workers’
                Compensation insurance in accordance with statutory provisions covering
                accidental injury, illness or death of any such employee while at
                work or
                in the scope of his or her employment with such entity, and Employer’s
                Liability insurance in an amount not less than $1,000,000. Such insurance
                coverage shall not include any occupational disease
                exclusions.





(E)
            Motor
                Vehicle Liability.Motor Vehicle Liability insurance covering owned, non-owned, leased,
                hired
                or borrowed vehicles of the Borrowers, if any, against bodily injury
                or
                property damage. Such insurance coverage shall have a limit of liability
                of not less than $1,000,000.







(F)
            Excess/Umbrella
                Liability.Excess Umbrella Liability insurance written on an occurrence basis
                and
                providing coverage limits in excess of the primary limits applying
                under
                policies described insubsections
                (II)(C),(II)(D),
                and(II)(E).
                Such insurance coverage shall have a limit of liability of not less
                than
                $5,000,000. Such insurance coverage shall include a drop down provision
                in
                the event of exhaustion of underlying limits and/or aggregates and
                apply
                on a following form basis to the primary coverage. Such insurance
                coverage
                shall not include exclusions for punitive and/or exemplary damages
                where
                insurable under law.





(G)
            Endorsements:





a.
            The
                Borrowers shall in form and substance acceptable to Administrative
                Agent
                and cause their insurance coverages to be endorsed as
                follows:




i.
            Administrative
                Agent shall be an additional insured with respect to the insurance
                coverages described insubsections
                (II).
                Administrative Agent shall be Loss Payee in accordance with Lender’s Loss
                Payable Endorsement 438 BFU or equivalent for coverages described
                insubsections
                (II)(A)and(II)(B)and shall provide that any payment for any loss or damage with respect
                to
                the property shall be made to Administrative Agent. It shall be understood
                that any obligation imposed upon the Borrowers, including but not
                limited
                to the obligation to pay premiums, shall be the sole obligation of
                the
                Borrowers, and not that of Administrative
                Agent;




ii.
            The
                insurance companies will give Administrative Agent at least ten (10)
                days
                prior written notice, in the case of nonpayment of premiums, or thirty
                (30) days’ prior written notice, in all other cases, before any such
                policy or policies of insurance shall be altered or canceled and
                that no
                act or default of the primary insured party or any other Person shall
                affect the right of Administrative Agent to recover under such policy
                or
                policies of insurance in case of loss or
                damage;




iii.
            In
                as much as the liability policies are written to cover more than
                one
                insured, all terms, conditions, insuring agreements and endorsements
                of
                the liability policies, with the exception of the limits of liability,
                shall operate in the same manner as if there were a separate policy
                covering each insured;




iv.
            The
                insurers thereunder shall waive all rights of subrogation against
                Administrative Agent, any right of setoff or counterclaim and any
                other
                right to deduction, whether by attachment of otherwise;
                and




v.
                Such
                    insurance shall be primary without right of contribution of any
                    other
                    insurance carried by or on behalf of Administrative Agent with
                    respect to
                    its interests.





(H)
            Certifications.
                On the Closing Date, and at each policy renewal, but no less than
                annually, the Borrowers shall provide to Administrative Agent approved
                Certificates of Insurance from each insurer or by an authorized
                representative of each insurer. Such certification shall identify
                the
                underwriters, the type of insurance, the limits, deductibles, and
                term
                thereof and shall specifically list the special provisions delineated
                for
                such insurance required bySection
                (II)(G),
                above. Upon request, the Borrowers shall furnish Administrative Agent
                with
                copies of all insurance policies, binders, cover notes or other evidence
                of such insurance.





(I)
            Insurance
                Report.Concurrently with the furnishing of all certificates referred to
                in thisSchedule
                4.17,
                the Borrowers shall furnish the Administrative Agent with an opinion
                from
                independent insurance broker(s), acceptable to the Administrative
                Agent,
                acting reasonably, stating that all premiums then due have been paid
                and
                that, in the opinion of such broker(s), the insurance then maintained
                by
                the Borrowers is in accordance with thisSchedule
                4.17.
                Furthermore, upon its first knowledge, such broker(s) shall advise
                the
                Administrative Agent promptly in writing of any default in the payment
                of
                any premiums or any other act or omission, on the part of any Person,
                which might invalidate or render unenforceable, in whole or in part,
                any
                insurance provided by the
                Borrowers.





****SCHEDULE
      4.18****




****BANK
      AND SECURITY ACCOUNTS****




List
      all banks and other financial institutions that any Borrower maintains deposits
      and/or bank, security or other accounts :




**Bank/Institution**
            
            **Name in Which Account Held**
            
            **Description**
            
            **Account number**Citibank 1
                Broadway New York,
              NY
                10004 (212) 248-6834
            
            MMC
                Chula Vista II LLC
            
            Checking
                – Controlled
            
            9939531120Citibank
                1 Broadway New York,
              NY
                10004 (212) 248-6834
            
            MMC
                Escondido II LLC
            
            Checking
                - Controlled
            
            9939531147







**SCHEDULE
      10.3**




**ACTIONS
      TO PERFECT LIENS**




UCC
      Filings State of
      Delaware




Other
      Actions to Perfect Liens None.





**EXHIBIT
      A**




**NOTICE
      OF DELAYED DRAW TERM LOAN**




__________,
      200__




General
      Electric Capital Corporation., as Administrative Agent


120
      Long
      Ridge Road


Stamford,
      Connecticut 06927


Attention:
      Mr. Osvaldo Rubio, EFS Account Manager




Re:
            MMC
                Chula Vista II LLC




Ladies
      and Gentlemen:




Reference
      is made to that certain Loan and Security Agreement (as amended, modified,
      supplemented, renewed or restated from time to time, the “ Loan
      Agreement ”;
      capitalized terms used but not defined herein have the meanings given them
      in
      the Agreement) dated as of June 30, 2008, by and among MMC Chula Vista II LLC,
      a
      Delaware limited liability company (“ Chula
      Vista  Borrower ”),
      MMC
      Escondido II LLC (“Escondido Borrower”) and together with the Chula Vista
      Borrower, collectively “Borrowers” and individually each “ Borrower ”),
      the
      other Credit Parties signatory thereto, each of the financial institutions
      a
      signatory thereto, from time to time, together with their successors and
      assignees (the “ Lenders ”),
      as
      lenders, and General Electric Capital Corporation., a Delaware corporation,
      as
      administrative Agent for the Lenders (in such capacity, the “ Administrative
      Agent ”).




The
      Borrowers hereby give you notice that the [Chula Vista Borrower/Escondido
      Borrower] (the “ Applicable
      Borrower ”)
      hereby
      requests the borrowing of a Delayed Draw Term Loan under Article
      2 of the
      Loan Agreement and in connection therewith, sets forth the information related
      to such borrowing:




(i)
            The
                aggregate principal amount of the Delayed Draw Term Loan is $[______]
                (the
                “Borrowing”)




(ii)
            The
                Delayed Draw Term Loan is requested to be made on [______ __, 200__]
                (the
                “Borrowing
                Date”).




[(iii)1
                The
                    Borrowing is requested to pay the attached invoices received
                    by the
                    Applicable Borrower from Seller under Section 5.1 of the Purchase
                    Agreement to which Applicable Borrower is a party for payments
                    required to
                    be made in accordance with the payment schedule set forth in
                    Attachment 3
                    to such Purchase Agreement. Borrowers hereby direct that the
                    proceeds of
                    the Borrowing be sent directly by Administrative Agent to the
                    Seller for
                    application to Borrowers’ obligations under the Purchase Agreement to
                    which Applicable Borrower is a party by wire transfer as
                    follows:




[Insert
      Seller’s bank account information]]




[(iii)1
            The
                Borrowing is requested to repay Parent Advances, the proceeds of
                which
                have been used by the Applicable Borrower solely to pay the attached
                invoices received by the Applicable Borrower from Seller under Section
                5.1
                of the Purchase Agreement to which the Applicable Borrower is a party
                for
                the payments required to be made in accordance with the payment schedule
                set forth in Attachment 3 to such Purchase Agreement (other than
                the
                initial 45% of such payments). Attached hereto is correspondence
                from the
                Seller confirming that the such invoices have been paid. Borrowers
                hereby
                direct that the proceeds of the Borrowing be sent by the Administrative
                Agent to the Parent in repayment of such Parent Advances by wire
                transfer
                as follows:




1 Insert
        appropriate clause (iii).









[Insert
      Parent’s bank account information]]




The
      undersigned hereby certifies that (i) all of the statements contained in Section 3.2 of the
      Loan Agreement are true and correct on the date hereof, and will be true and
      correct on the Borrowing Date, before and after giving effect thereto and the
      application of the proceeds of the requested Delayed Draw Term Loan and
      (ii) the proceeds of the requested Delayed Draw Term Loan will be used as
      set forth in clause
      (iii) above.





IN
      WITNESS WHEREOF, Borrowers have executed this Notice by its duly authorized
      member as of the date first written above.





**BORROWERS**MMC
                CHULA VISTA II LLCBy:
              MMC Energy, Inc., its sole MemberBy:Name:Title:MMC
                ESCONDIDO II LLCBy:
                MMC Energy, Inc., its sole MemberBy:Name:Title:





**EXHIBIT
      B**





**FORM
      OF SECRETARY’S CERTIFICATE**




The
      undersigned hereby certifies that he or she is the duly elected and acting
      Secretary or Assistant Secretary of **[** Name
      of
      Credit Party **]** ,
      a **[** State
      of
      Organization **]
      [** Type
      of
      Legal Entity **]** (the
“ Credit
      Party ”),
      and
      as such is the custodian of Credit Party’s Books and Records and is authorized
      to execute and deliver this Certificate in connection with the Loans being
      made
      to MMC Chula Vista II LLC and MMC Escondido II LLC (the “ Borrowers ”)
      under
      the Loan and Security Agreement of even date herewith (the “ Loan
      Agreement ”)
      by and
      among Borrowers, the other Credit Parties signatory thereto, each of the
      financial institutions a signatory thereto, from time to time, together with
      their successors and assignees (the “ Lenders ”),
      as
      lenders, and General Electric Capital Corporation., a Delaware corporation,
      as
      administrative Agent for the Lenders (in such capacity, the “ Administrative
      Agent ”).
      Capitalized terms not defined in this Certificate shall have the meanings
      ascribed to them in the Loan Agreement. In order to induce the Lenders to
      execute the Agreement and make the Loans, the undersigned certifies (in his
      or
      her secretarial capacity, and on behalf of Credit Party) as
      follows:




1.
            Attached
                hereto asExhibit Ais
                a true and complete copy of the**[**Describe
                Charter Document**]**of
                the Credit Party (the “Charter”),
                as certified by the Secretary of State of the State of**[**Insert
                State of Organization**]**.
                The Charter has not been amended since the date shown on the attached
                certificate (except as reflected in any attachments hereto) and is
                now in
                full force and effect.




2.
            Attached
                hereto asExhibit Bis
                a true and complete copy of the**[**Insert
                name of Governing Document—Bylaws, Operating Agreement, etc.**]**of
                the Credit Party (the “Governing
                Document”),
                which Governing Document has not been amended since the date of the
                adoption thereof (except as reflected in any attachments hereto)
                and is
                now in full force and effect.




3.
            Attached
                hereto asExhibit Cis
                a true and complete copy of a unanimous written consent executed
                by all of
                the members of the**[**describe
                governing body—board of directors, manager, etc.**]**of
                the Credit Party, said consent authorizing the execution, delivery and
                performance of the Loan Documents to which the Credit Party is a
                party,
                and said consent has not been modified, rescinded or amended since
                the
                date thereof and is in full force and effect as of the date
                hereof.




4.
            The
                following Persons are now duly elected and qualified officers of
                the
                Credit Party holding the offices indicated next to their respective
                names
                below, and the signatures appearing opposite their respective names
                below
                are the true and genuine signatures of such officers, and each of
                such
                officers is duly authorized to execute and deliver, on behalf of
                the
                Credit Party, the Loan Documents to which the Credit Party is a party
                and
                any certificate or other document to be delivered by the Credit Party
                pursuant to such Loan Documents:









Name
            
            Office
            
            Signature___________________
            
            ___________________
            
            ______________________________________
            
            ___________________
            
            ______________________________________
            
            ___________________
            
            ______________________________________
            
            ___________________
            
            ______________________________________
            
            ___________________
            
            ___________________







IN
      WITNESS WHEREOF, the undersigned have executed this Certificate on **** ________________,
      20__.




By:_____________________________________________Name:___________________________________________Title:
                **[**Assistant**]**
                Secretary





The
      undersigned, the **[** insert
      title of officer **]** of the
      Credit Party, hereby certifies that **[** insert
      name of **[** Assistant **]** Secretary of Credit Party **]** is the **[** Assistant **]** Secretary of the Credit Party and is authorized to execute and deliver this
      Certificate.




By:_____________________________________________Name:___________________________________________Title:
                **[**insert title of
                officer**]**





**EXHIBIT
      C**





**POWER
      OF ATTORNEY**




This
      Power of Attorney is executed and delivered by **[** insert
      name of Credit Party **]** (“ Credit
      Party ”),
      to
      General Electric Capital Corporation, as administrative agent (hereinafter
      referred to as “ Attorney ”),
      under
      a Loan and Security Agreement dated as even date herewith (the “ Agreement ”;
      capitalized terms are used herein as defined in the Agreement) by and among
      MMC
      Chula Vista II LLC, MMC Escondido II LLC, the other “Credit Parties” named
      therein, if any, the Lenders from time to time party thereto and General
      Electric Capital Corporation, as administrative agent. No person to whom this
      Power of Attorney is presented, as authority for Attorney to take any action
      or
      actions contemplated hereby, shall inquire into or seek confirmation from Credit
      Party as to the authority of Attorney to take any action described below, or
      as
      to the existence of or fulfillment of any condition to this Power of Attorney,
      which is intended to grant to Attorney unconditionally the authority to take
      and
      perform the actions contemplated herein, and Credit Party irrevocably waives
      any
      right to commence any suit or action, in law or equity, against any person
      or
      entity which acts in reliance upon or acknowledges the authority granted under
      this Power of Attorney. The power of attorney granted hereby is coupled with
      an
      interest, and may not be revoked or canceled by Credit Party without Attorney’s
      written consent until such time as payment in full of all Obligations due and
      payable to Attorney has been made under the Loan Documents.




Credit
      Party hereby irrevocably constitutes and appoints Attorney (and all officers,
      employees or agents designated by Attorney), with full power of substitution,
      as
      Credit Party’s true and lawful attorney-in-fact with full irrevocable power and
      authority in the place and stead of Credit Party and in the name of Credit
      Party
      or in its own name, from time to time in Attorney’s discretion, to take any and
      all appropriate action and to execute and deliver any and all documents and
      instruments which may be necessary or desirable to accomplish the purposes
      of
      the Loan Documents and, without limiting the generality of the foregoing, Credit
      Party hereby grants to Attorney the power and right, on behalf of Credit Party,
      without notice to or assent by Credit Party, and at any time, to do the
      following: (a) change the address for delivery of mail, open mail for Credit
      Party, and ask, demand, collect, give acquittances and receipts for, take
      possession of, endorse and receive payment of, any checks, drafts, notes,
      acceptances, or other instruments for the payment of moneys due, and sign and
      endorse any invoices, freight or express bills, bills of lading, storage or
      warehouse receipts, drafts against debtors, assignments, verifications, and
      notices in connection with any property of Credit Party, (b) effect any
      repairs to any asset of Credit Party, or continue or obtain any insurance and
      pay all or any part of the premiums therefor and costs thereof, and make, settle
      and adjust all claims under such policies of insurance, and make all
      determinations and decisions with respect to such policies, (c) pay or
      discharge any taxes, liens, security interests, or other encumbrances levied
      or
      placed on or threatened against Credit Party or its property, (d) defend
      any suit, action or proceeding brought against Credit Party if Credit Party
      does
      not defend such suit, action or proceeding or if Attorney believes that Credit
      Party is not pursuing such defense in a manner that will maximize the recovery
      to Attorney, and settle, compromise or adjust any suit, action, or proceeding
      described above and, in connection therewith, give such discharges or releases
      as Attorney may deem appropriate, (e) file or prosecute any claim,
      litigation, suit or proceeding in any court of competent jurisdiction or before
      any arbitrator, or take any other action otherwise deemed appropriate by
      Attorney for the purpose of collecting any and all such moneys due to Credit
      Party whenever payable and to enforce any other right in respect of Credit
      Party’s property, (f) sell, transfer, pledge, compromise payment or make
      any other agreement with respect to, or otherwise deal with any property of
      Credit Party, and execute, in connection with such sale or action, any
      endorsements, assignments or other instruments of conveyance or transfer in
      connection therewith and (g) cause the certified public accountants then
      engaged by Credit Party to prepare and deliver to Attorney at any time and
      from
      time to time, promptly upon Attorney’s request, the following reports:
      (1) a reconciliation of all accounts, (2) an aging of all accounts,
      (3) trial balances, (4) test verifications of such accounts as
      Attorney may request and (5) the results of each physical verification of
      inventory, all as though Attorney were the absolute owner of the property of
      Credit Party for all purposes, and to do, at Attorney’s option and Credit
      Party’s expense, at any time or from time to time, all acts and other things
      that Attorney reasonably deems necessary to perfect, preserve, or realize upon
      Credit Party’s property or assets and Attorney’s liens thereon, all as fully and
      effectively as Credit Party might do. Credit Party hereby ratifies, to the
      extent permitted by law, all that said attorneys shall lawfully do or cause
      to
      be done by virtue hereof.





IN
      WITNESS WHEREOF, this Power of Attorney is executed by Credit Party on
      ________________, 20___.




**[** CREDIT
      PARTY **]**   ATTEST:_________________________




By:___________________________________Name:
                [Signatory Person (name) for Credit Party]Title:
                [Signatory Title for Credit Party]





*Notarization
      in appropriate form for the state of execution is required*





****EXHIBIT
      D****




****FORM
      OF ASSIGNMENT****




This
      ASSIGNMENT, dated as of the Effective Date, is entered into between the assignor
      and the assignee (each as defined below).




The
      parties hereto hereby agree as follows:




Borrowers:
            MMC
                Chula Vista II LLC, a Delaware limited liability company and MMC
                Escondido
                II LLC, a Delaware limited liability company (the “Borrowers”)Administrative
                Agent:
            General
                Electric Capital Corporation, as administrative agent for the Lenders
                (in
                such capacity and together with its successors and permitted assigns,
                the
                “Administrative
                Agent”)Loan
                Agreement:
            Loan
                and Security Agreement, dated as of June 30, 2008, among the Borrowers,
                the other Credit Parties party thereto, the Lenders party thereto,
                from
                time to time, and the Administrative Agent (as the same may be amended,
                restated, supplemented or otherwise modified from time to time, the
                “Loan
                Agreement”;
                capitalized terms used herein without definition are used as defined
                in
                the Loan Agreement)**[**Trade
                Date:
            _________,
                ____**]1**Effective
                Date:
            _________,
                ____2




Assignor
              (collectively, the
              “Assignors”)3
            
            Assignee
              (collectively, the
              “Assignees”)4
            
            Facility
              Assigned
            
            Aggregate
              amount of
              Delayed Draw
              Term Loan
              Commitments
              or principal
              amount of
              Loans for all
              Lenders5
            
            Aggregate
              amount of
              Delayed Draw
              Term Loan
              Commitments
              or principal
              amount of
              Loans
              Assigned5
            
            Percentage
              Assigned6**[**Name
                of Assignor**]**
            
            
            **[**Name
                of Assignee]
              **[**Affiliate**]****[**Approved
                Fund**]**of
              **[**Name
                of Lender**]**
            
            
            Delayed
                Draw Term Loan Facility
            
            $
            __________
            
            $
            __________
            
            
            __.______
            %




**[** The
      Remainder of this Page Was Intentionally Left Blank **]**




1 Insert
      for informational purposes only if needed to determine other arrangements
      between the assignor and the assignee.


2 To
      be
      filled out by Administrative Agent upon entry in the Register.


3 List
      each
      Assignor, as appropriate.


4 List
      each
      Assignee, as appropriate.


5 Amount
      to
      be adjusted by the counterparties to take into account any payments or
      prepayments made between the Trade Date and
      the
      Effective Date. The aggregate amounts are inserted for informational purposes
      only to help in calculating the percentages assigned
      which, themselves, are for informational purposes only.


6 Set
      forth, to at least 9 decimals, the Assigned Interest as a percentage of the
      aggregate Commitment or Loans in the Facility.


This
      percentage is set forth for informational purposes only and is not intended
      to
      be binding. The assignments are based on the amounts
      assigned not on the percentages listed in this column.





Section
      1 .  Assignment .
      Each
      Assignor hereby sells and assigns to the Assignee set forth above opposite
      such
      Assignor, and such Assignee hereby purchases and assumes from such Assignor,
      such Assignor’s rights and obligations in its capacity as Lender under the Loan
      Agreement (including Liabilities owing to or by such Assignor thereunder) and
      the other Loan Documents, in each case to the extent related to the amounts
      identified above opposite such Assignor (such Assignor’s “ Assigned
      Interest ”).




Section
      2 .  Representations,
      Warranties and Covenants of Assignors .
      Each
      Assignor severally but not jointly (a) represents and warrants to its
      corresponding Assignee and the Administrative Agent that (i) it has full power
      and authority, and has taken all actions necessary for it, to execute and
      deliver this Assignment and to consummate the transactions contemplated hereby
      and (ii) it is the legal and beneficial owner of its Assigned Interest and
      that
      such Assigned Interest is free and clear of any Lien and other adverse claims,
      (b) makes no other representation or warranty and assumes no responsibility,
      including with respect to the aggregate amount of the Delayed Draw Term Loan
      Facility, the percentage of the Delayed Draw Term Loan Facility represented
      by
      the amounts assigned, any statements, representations and warranties made in
      or
      in connection with any Loan Document or any other document or information
      furnished pursuant thereto, the execution, legality, validity, enforceability
      or
      genuineness of any Loan Document or any document or information provided in
      connection therewith and the existence, nature or value of any Collateral,
      (c)
      assumes no responsibility (and makes no representation or warranty) with respect
      to the financial condition of any Credit Party or the performance or
      nonperformance by any Credit Party of any obligation under any Loan Document
      or
      any document provided in connection therewith and (d) attaches any Notes held
      by
      it evidencing at least in part the Assigned Interest of such Assignor (or,
      if
      applicable, an affidavit of loss or similar affidavit therefor) and requests
      that the Administrative Agent exchange such Notes for new Notes in accordance
      with Section 2.11(e) of the
      Loan Agreement.




Section
      3 .  Representations,
      Warranties and Covenants of Assignees .
      Each
      Assignee severally but not jointly (a) represents and warrants to its
      corresponding Assignor and the Administrative Agent that (i) it has full power
      and authority, and has taken all actions necessary for such Assignee, to execute
      and deliver this Assignment and to consummate the transactions contemplated
      hereby, (ii) to the extent indicated above, is an Affiliate or an Approved
      Fund
      of the Lender set forth above and (iii) it is sophisticated with respect to
      decisions to acquire assets of the type represented by the Assigned Interest
      assigned to it hereunder and either such Assignee or the Person exercising
      discretion in making the decision for such assignment is experienced in
      acquiring assets of such type, (b) appoints and authorizes the Administrative
      Agent to take such action as administrative agent and collateral agent on its
      behalf and to exercise such powers under the Loan Documents as are delegated
      to
      the Administrative Agent by the terms thereof, together with such powers as
      are
      reasonably incidental thereto, (c) shall perform in accordance with their
      terms all obligations that, by the terms of the Loan Documents, are required
      to
      be performed by it as a Lender, (d) confirms it has received such documents
      and
      information as it has deemed appropriate to make its own credit analysis and
      decision to enter into
      this
      Assignment and shall continue to make its own credit decisions in taking or
      not
      taking any action under any Loan Document independently and without reliance
      upon any Secured Party and based on such documents and information as it shall
      deem appropriate at the time, (e) acknowledges and agrees that, as a
      Lender, it may receive material non-public information and confidential
      information concerning the Loan Parties and their Affiliates and Securities
      and
      agrees to use such information in accordance with Section
      13.22 of the
      Loan Agreement, (f) specifies as its applicable lending offices (and
      addresses for notices) the offices at the addresses set forth beneath its name
      on the signature pages hereof, (g) shall pay to the Administrative Agent an
      assignment fee in the amount of $3,500 to the extent such fee is required to
      be
      paid under Section
      13.2(c) of the
      Loan Agreement and (h) to the extent required pursuant to Section
      2.13(f) of the
      Loan Agreement, attaches two completed originals of Forms W-8ECI, W-8BEN or
      W-9.




Section
      4 .  Determination
      of Effective Date; Register .
      Following the due execution and delivery of this Assignment by each Assignor,
      each Assignee and, to the extent required by Section
      13.2(b) of the
      Loan Agreement, the Borrowers, this Assignment (including its attachments)
      will
      be delivered to the Administrative Agent for its acceptance and recording in
      the
      Register. The effective date of this Assignment (the “ Effective
      Date ”)
      shall
      be the later of (i) the acceptance of this Assignment by the Administrative
      Agent and (ii) the recording of this Assignment in the Register. The
      Administrative Agent shall insert the Effective Date when known in the space
      provided therefor at the beginning of this Assignment.







Section
      5 .  Effect .
      As of
      the Effective Date, (a) each Assignee shall be a party to the Loan Agreement
      and, to the extent provided in this Assignment, have the rights and obligations
      of a Lender under the Loan Agreement and (b) each Assignor shall, to the extent
      provided in this Assignment, relinquish its rights (except those surviving
      the
      termination of the Delayed Draw Term Loan Commitments and payment in full of
      the
      Obligations) and be released from its obligations under the Loan Documents
      other
      than those obligations relating to events and circumstances occurring prior
      to
      the Effective Date.




Section
      6 .  Distribution
      of Payments .
      On and
      after the Effective Date, the Administrative Agent shall make all payments
      under
      the Loan Documents in respect of each Assigned Interest of any Assignor (a)
      in
      the case of amounts accrued to but excluding the Effective Date, to such
      Assignor and (b) otherwise, to the corresponding Assignee.




Section
      7 .  Miscellaneous .
      This
      Assignment is a Loan Document and, as such, is subject to certain provisions
      of
      the Loan Agreement, including Sections
      1.4 , 13.14(a) and 13.15 thereof.
      On and after the Effective Date, this Assignment shall be binding upon, and
      inure to the benefit of, the Assignors, Assignees, the Administrative Agent
      and
      their Related Persons and their successors and assigns. This Assignment shall
      be
      governed by, and be construed and interpreted in accordance with, the law of
      the
      State of New York. This Assignment may be executed in any number of counterparts
      and by different parties in separate counterparts, each of which when so
      executed shall be deemed to be an original and all of which taken together
      shall
      constitute one and the same agreement. Signature pages may be detached from
      multiple separate counterparts and attached to a single counterpart. Delivery
      of
      an executed signature page of this Assignment by facsimile transmission or
      Electronic Transmission shall be as effective as delivery of a manually executed
      counterpart of this Assignment.




**[** Signature
      Pages Follow **]**


3





IN
      WITNESS WHEREOF, the parties hereto have caused this Assignment to be executed
      by their respective officers thereunto duly authorized, as of the date first
      above written.




**[**NAME
                OF ASSIGNOR**]**as
              AssignorBy:Name:Title:**[**NAME
                OF ASSIGNEE**]**as
              AssigneeBy:Name:Title:[Lending
                Office for Eurodollar Rate Loans:8[Insert
                Address (including contact name, fax number ande-mail
                address)]]Lending
                Office (and address for notices)for
                any other purpose:[Insert
                Address (including contact name, fax number ande-mail
                address)]




ACCEPTED
                and AGREEDthis
                __ day of ______ _____:GENERAL
                ELECTRIC CAPITAL CORPORATIONas
                Administrative AgentBy:Name:Title:[MMC
                CHULA VISTA II LLC]9[By:Name:Title:][MMC
                ESCONDIDO II LLC]8[By:Name:Title:]




_________________________


8 Insert
      for each Assignee.


9 Include
      only if required pursuant to Section 13.2(b) of the Loan
      Agreement.


4


****EXHIBIT
      E****




****FORM
      OF NOTE****




LENDER: **[** NAME
      OF
      LENDER **]**  NEW
      YORK,
      NEW YORK


PRINCIPAL
                AMOUNT: $_______
            ___________,
                20__




FOR
      VALUE
      RECEIVED, the undersigned, MMC Chula Vista II LLC, a Delaware limited liability
      company, and MMC Escondido II LLC, a Delaware limited liability company (“each a Borrower ”
and,
      collectively, “ Borrowers ”),
      hereby jointly and severally promise to pay to the order of the Lender set
      forth
      above (the “ Lender ”)
      the
      Principal Amount set forth above, or, if less, the aggregate unpaid principal
      amount of all Delayed Draw Term Loans (as defined in the Loan Agreement referred
      to below) of the Lender to the Borrowers, payable at such times and in such
      amounts as are specified in the Loan Agreement.




The
      Borrowers jointly and severally promise to pay interest on the unpaid principal
      amount of the Delayed Draw Term Loans from the date made until such principal
      amount is paid in full, payable at such times and at such interest rates as
      are
      specified in the Loan Agreement. Demand, diligence, presentment, protest and
      notice of non-payment and protest are hereby waived by Borrowers.




Both
      principal and interest are payable in Dollars to General Electric Capital
      Corporation, as Administrative Agent, at 120 Long Ridge Road, Stamford
      Connecticut 06927, in immediately available funds.




This
      Note
      is one of the Notes referred to in, and is entitled to the benefits of, the
      Loan
      and Security Agreement, dated as of June 30, 2008 (as the same may be
      amended, restated, supplemented or otherwise modified from time to time, the
      “ Loan
      Agreement ”),
      among
      the Borrowers, the other Credit Parties party thereto, the Lenders party thereto
      from time to time and General Electric Capital Corporation, as administrative
      agent for the Lenders. Capitalized terms used herein without definition are
      used
      as defined in the Loan Agreement.




The
      Loan
      Agreement, among other things, (a) provides for the making of Delayed Draw
      Term
      Loans by the Lender to Borrowers in an aggregate amount not to exceed at any
      time outstanding the Principal Amount set forth above, the indebtedness of
      the
      Borrowers resulting from such Delayed Draw Term Loans being evidenced by this
      Note and (b) contains provisions for acceleration of the maturity of the unpaid
      principal amount of this Note upon the happening of certain stated events and
      also for prepayments on account of the principal hereof prior to the maturity
      hereof upon the terms and conditions specified therein.




This
      Note
      is a Loan Document, is entitled to the benefits of the Loan Documents and is
      subject to certain provisions of the Loan Agreement, including Sections 1.4 , 13.14(a) and 13.15 thereof.
      The obligations of the Borrowers under this Note are joint and several as
      provided in Section
      2.15 of the
      Loan Agreement.




This
      Note
      is a registered obligation, transferable only upon notation in the Register,
      and
      no assignment hereof shall be effective until recorded therein.




This
      Note
      shall be governed by, and construed and interpreted in accordance with, the
      law
      of the State of New York.




**[** Signature
      Pages Follow **]**





In
      witness whereof, each Borrower has caused this Note to be executed and delivered
      by its duly authorized officer as of the day and year and at the place set
      forth
      above.




MMC
                CHULA VISTA II LLCBy:
                MMC Energy, Inc., its sole MemberBy:Name:Title:MMC
                ESCONDIDO II LLCBy:
                MMC Energy, Inc., its sole MemberBy:Name:Title:





****EXHIBIT
      F****




****FORM
      OF NOTICE OF CONVERSION OR
      CONTINUATION****




GENERAL
      ELECTRIC CAPITAL CORPORATION




as
      Administrative Agent under the




Loan
      Agreement referred to below




_________
      __, 20__




Attention:




Re:
            MMC
                Chula Vista II LLC and MMC Escondido II LLC(“Borrowers”)




Reference
      is made to the Loan and Security Agreement, dated as of June 30, 2008 (as the
      same may be amended, restated, supplemented or otherwise modified from time
      to
      time, the “ Loan
      Agreement ”),
      among
      Borrowers, the lenders from time to time party thereto, General Electric Capital
      Corporation, as administrative agent, and the other parties thereto. Capitalized
      terms used herein and not otherwise defined herein are used herein as defined
      in
      the Loan Agreement.




Borrowers
      hereby gives you irrevocable notice, pursuant to Section 2.7(e)(ii) of the
      Loan Agreement of its request for the following:




E.  a
      continuation, on ________, ____, as Eurodollar Rate Loans having an Interest
      Period of 3 months of **[** a **]** Delayed
      Draw Term Loan **[** s **]** in **[** the **]**  **[** an
      aggregate **]** outstanding principal amount of $____________ having an Interest Period ending
      on the proposed date for such continuation;


F.  a
      conversion, on ________, ____, to Eurodollar Rate Loans having an Interest
      Period of 3 months of **[** a **]** Delayed
      Draw Term Loan **[** s **]** in **[** the **]**  **[** an
      aggregate **]** outstanding principal amount of $____________; and


G.  a
      conversion, on ________, ____, to Base Rate Loans, of **[** a **]** Delayed
      Draw Term Loan **[** s **]** in **[** the **]**  **[** an
      aggregate **]** outstanding principal amount of $____________.




In
      connection herewith, the undersigned hereby certifies that no Default is
      continuing on the date hereof, both before and after giving effect to any Loan
      to be made on or before any date for any proposed conversion or continuation
      set
      forth above.




MMC
                CHULA VISTA II LLCBy:
                MMC Energy, Inc., its sole MemberBy:Name:
            Denis
                GagnonTitle:
            Chief
                Financial OfficerMMC
                ESCONDIDO II LLCBy:
                MMC Energy, Inc., its sole MemberBy:Name:
            Denis
                GagnonTitle:
            Chief
                Financial Officer







**TABLE
        OF CONTENTS**


**Page**ARTICLE
                  IDEFINITIONS,
                  INTERPRETATION AND ACCOUNTING TERMS
              1Section
                  1.1
              Defined
                  Terms
              1Section
                  1.2
              UCC
                  Terms
              12Section
                  1.3
              Accounting
                  Terms and Principles
              12Section
                  1.4
              Interpretation
              13ARTICLE
                  IITHE
                  FACILITY
              13Section
                  2.1
              Delayed
                  Draw Term Loan Commitment
              13Section
                  2.2
              Borrowing
                  Procedures
              13Section
                  2.3
              [Intentionally
                  Omitted]
              14Section
                  2.4
              [Intentionally
                  Omitted]
              14Section
                  2.5
              Term
                  and Prepayment
              14Section
                  2.6
              Single
                  Loan
              15Section
                  2.7
              Interest
              15Section
                  2.8
              Fees
              16Section
                  2.9
              Receipt
                  of Payments
              17Section
                  2.10
              Application
                  of Payments
              17Section
                  2.11
              Evidence
                  of Debt
              18Section
                  2.12
              Breakage
                  Costs; Increased Costs; Capital Requirements
              19Section
                  2.13
              Taxes
              20Section
                  2.14
              Suspension
                  of Eurodollar Rate Option
              22Section
                  2.15
              Joint
                  and Several Liability of Borrowers
              22ARTICLE
                  IIICONDITIONS
                  PRECEDENT
              24Section
                  3.1
              Conditions
                  to the Initial Loans
              24Section
                  3.2
              Further
                  Conditions to the Loans
              26ARTICLE
                  IVREPRESENTATIONS
                  AND WARRANTIES
              26Section
                  4.1
              Corporate
                  Existence; Compliance with Law
              26Section
                  4.2
              Legal
                  Authority to Conduct Business
              27Section
                  4.3
              Locations;
                  Corporate or Other Names, Etc
              27Section
                  4.4
              Corporate
                  Power; Authorization; No Conflicts
              27Section
                  4.5
              Execution
                  and Enforceability
              27Section
                  4.6
              Ventures,
                  Subsidiaries and Affiliates; Outstanding Stock and
                  Indebtedness
              27Section
                  4.7
              Material
                  Adverse Change
              27Section
                  4.8
              Solvency
              27Section
                  4.9
              Litigation
              27Section
                  4.10
              Taxes
              27Section
                  4.11
              Government
                  Regulation; Margin Regulations
              28Section
                  4.12
              No
                  Burdensome Obligations; No Defaults
              28Section
                  4.13
              ERISA
              28Section 4.14
              Intellectual
                  Property
              28


-i-




**TABLE
        OF CONTENTS**
 (continued)
  **Page**Section
                  4.15
              Title;
                  Real Property
              28Section
                  4.16
              Full
                  Disclosure
              28Section
                  4.17
              Insurance
              28Section
                  4.18
              Bank
                  and Security Accounts
              28Section
                  4.19
              Status
                  of Borrowers
              28Section
                  4.20
              Purchase
                  Agreements
              28Section
                  4.21
              Brokers
              29Section
                  4.22
              Anti-Terrorism
                  and Anti-Money Laundering
              29ARTICLE
                  V[Intentionally
                  Omitted]
              29ARTICLE
                  VIREPORTING
                  COVENANTS
              29Section
                  6.1
              Financial
                  Statements
              29Section
                  6.2
              Other
                  Events
              29Section
                  6.3
              Taxes
              30Section
                  6.4
              Purchase
                  Agreements
              30Section
                  6.5
              Environmental
                  Matters
              30Section
                  6.6
              Other
                  Reports and Information
              30ARTICLE
                  VIIAFFIRMATIVE
                  COVENANTS
              30Section
                  7.1
              Maintenance
                  of Corporate Existence
              30Section
                  7.2
              Compliance
                  with Laws, Etc
              30Section
                  7.3
              Payment
                  of Obligations
              30Section
                  7.4
              Maintenance
                  of Property and Equipment
              30Section
                  7.5
              Maintenance
                  of Insurance
              31Section
                  7.6
              Keeping
                  of Books
              31Section
                  7.7
              Access
                  to Books and Property
              31Section
                  7.8
              Use
                  of Proceeds
              31Section
                  7.9
              Further
                  Assurances
              31Section
                  7.10
              Landlord
                  Waiver, Consent and Access Agreements
              31Section
                  7.11
              OFAC
              32Section
                  7.12
              Bank
                  Accounts
              32ARTICLE
                  VIIINEGATIVE
                  COVENANTS32Section
                  8.1
              Indebtedness
              32Section
                  8.2
              Liens
              32Section
                  8.3
              Investments;
                  Fundamental Changes
              32Section
                  8.4
              Asset
                  Sales
              32Section
                  8.5
              Restricted
                  Payments
              32Section
                  8.6
              Business
                  Activities
              32Section
                  8.7
              Transactions
                  with Affiliates
              32Section
                  8.8
              Contracts
              32Section
                  8.9
              Modification
                  of Certain Documents
              32Section 8.10
              Changes
                  to Name, Locations, Etc
              33


-ii-
  **TABLE
          OF CONTENTS**
 (continued)


**Page**Section
                  8.11
              Bank
                  Accounts
              33Section
                  8.12
              Margin
                  Regulations
              33Section
                  8.13
              Compliance
                  with ERISA
              33Section
                  8.14
              Equipment
              33Section
                  8.15
              Purchase
                  Agreements
              34ARTICLE
                  IX[Intentionally
                  Omitted]
              34ARTICLE
                  X
              34Section
                  10.1
              Grant
                  of Security Interest
              34Section
                  10.2
              Nature
                  of Security Interest
              35Section
                  10.3
              Representations
                  and Warranties Regarding Collateral
              35Section
                  10.4
              Defense
                  of Collateral
              35Section
                  10.5
              Books
                  and Records; Legends
              35Section
                  10.6
              Notification
                  of Commercial Tort Claims; Intellectual Property
              35Section
                  10.7
              Administrative
                  Agent’s Rights
              35Section
                  10.8
              Administrative
                  Agent’s Appointment as Attorney-in-fact
              36Section
                  10.9
              Authorization
                  to File Financing Statements
              36Section
                  10.10
              Grant
                  of License to Use Intellectual Property Collateral
              36ARTICLE
                  XIEVENTS
                  OF DEFAULT; RIGHTS AND REMEDIES
              36Section
                  11.1
              Events
                  of Default
              36Section
                  11.2
              Remedies
              38Section
                  11.3
              Waivers
                  by Credit Parties
              39ARTICLE
                  XIIADMINISTRATIVE
                  AGENT
              39Section
                  12.1
              Appointment
                  and Duties
              39Section
                  12.2
              Binding
                  Effect
              40Section
                  12.3
              Use
                  of Discretion
              40Section
                  12.4
              Delegation
                  of Rights and Duties
              41Section
                  12.5
              Reliance
                  and Liability
              41Section
                  12.6
              Administrative
                  Agent Individually
              42Section
                  12.7
              Lender
                  Credit Decision
              42Section
                  12.8
              Expenses;
                  Indemnities
              42Section
                  12.9
              Resignation
                  of Administrative Agent
              42Section
                  12.10
              Release
                  of Collateral or Guarantors
              43Section
                  12.11
              Additional
                  Secured Parties
              43ARTICLE
                  XIIIMISCELLANEOUS
              43Section
                  13.1
              Modification
                  of Agreement, Amendments, Waivers, Etc
              43Section
                  13.2
              Binding
                  Effect; Assignments and Participations
              44Section
                  13.3
              Costs
                  and Expenses
              46Section
                  13.4
              Indemnities
              46Section
                  13.5
              Survival
              47Section 13.6
              Limitation
                  of Liability for Certain Damages
              47


-iii-




**Page**Section
                    13.7
                Lender-Creditor
                    Relationship
                47Section
                    13.8
                Right
                    of Setoff
                47Section
                    13.9
                Sharing
                    of Payments, Etc
                48Section
                    13.10
                Marshaling;
                    Payments Set Aside
                48Section
                    13.11
                Notices
                48Section
                    13.12
                Electronic
                    Transmissions
                49Section
                    13.13
                Governing
                    Law
                49Section
                    13.14
                Jurisdiction
                49Section
                    13.15
                WAIVER
                    OF JURY TRIAL
                50Section
                    13.16
                Severability
                50Section
                    13.17
                Execution
                    in Counterparts
                51Section
                    13.18
                ENTIRE
                    AGREEMENT
                51Section
                    13.19
                Use
                    of Name
                51Section
                    13.20
                Authorized
                    Signature
                51Section
                    13.21
                Time
                    of the Essence
                51Section
                    13.22
                Non-Public
                    Information; Confidentiality
                51Section
                    13.23
                Patriot
                    Act Notice
                52Section 13.24
                Subordination
                    of Intercompany Obligations
                52
  -iv-