EXHIBIT
      10.16

    
      

      

    

    AMENDED
      AND RESTATED PURCHASE AGREEMENT

     

    Dated
      as of May 16, 2007 (Amending and Restating 

    the
      Purchase Agreement dated as of July 21, 2006),

     

    among

     

    DIGITAL
      DOMAIN, INC.,

     

    WYNDCREST
      DD HOLDINGS, INC.,

     

    THE
      SUBSIDIARY GUARANTORS PARTY HERETO,

     

    THE
      PURCHASERS PARTY HERETO,

     

    and

     

    FMP
      AGENCY SERVICES, LLC,

    as
      Agent

     

    Relating
      to:

     

    $12,500,000
      Aggregate Principal Amount of 

    Senior
      Secured Notes due 2011 of Digital Domain, Inc.

     

    $7,000,000
      Aggregate Principal Amount of 

    Series
      B Senior Secured Notes due 2011 of Digital Domain, Inc.

     

    1,000,000
      Shares of 8.0% Senior Cumulative Convertible Preferred Stock, $0.0001 Par Value,
      

    of
      Wyndcrest DD Holdings, Inc.,

     

    Initial
      Warrants for 7,323,077 (Subject to Adjustment) Shares 

    of
      Common Stock, $0.0001 Par Value, of Wyndcrest DD Holdings,
      Inc.


     

    and

     

    Additional
      Warrants for 2,500,000 (Subject to Adjustment) Shares

    of
      Common Stock, $0.0001 Par Value, of Wyndcrest DD Holdings,
      Inc.

     

    Cahill
      Gordon & Reindel LLP

    80
      Pine Street

    New
      York, New York 10005

     

    
      

      

    

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    TABLE
      OF CONTENTS

    

      
        	
                Section

              	 	
                Page

              
	 
	
                ARTICLE
                  I

                 

                DEFINITIONS

              
	 	 	 
	
                SECTION
                  1.01

              	
                Defined
                  Terms

              	
                3

              
	
                SECTION
                  1.02

              	
                Terms
                  Generally

              	
                33

              
	
                SECTION
                  1.03

              	
                Accounting
                  Terms; GAAP

              	
                33

              
	
                SECTION
                  1.04

              	
                Resolution
                  of Drafting Ambiguities

              	
                33

              
	 
	
                ARTICLE
                  II

                 

                AUTHORIZATION,
                  ISSUANCE AND SALE OF SECURITIES

              
	 	 	 
	
                SECTION
                  2.01

              	
                Authorization
                  of Issue

              	
                33

              
	
                SECTION
                  2.02

              	
                Purchase
                  and Sale

              	
                34

              
	
                SECTION
                  2.03

              	
                First
                  Closing

              	
                34

              
	
                SECTION
                  2.04

              	
                Second
                  Closing

              	
                34

              
	
                SECTION
                  2.05

              	
                Waiver
                  of Antidilution Rights

              	
                34

              
	 
	
                ARTICLE
                  III

                 

                REPRESENTATIONS
                  AND WARRANTIES OF ISSUERS

              
	 	 	 
	
                SECTION
                  3.01

              	
                Organization;
                  Powers

              	
                35

              
	
                SECTION
                  3.02

              	
                Authorization;
                  Enforceability

              	
                35

              
	
                SECTION
                  3.03

              	
                No
                  Conflicts

              	
                35

              
	
                SECTION
                  3.04

              	
                Financial
                  Statements; Projections

              	
                36

              
	
                SECTION
                  3.05

              	
                Properties

              	
                36

              
	
                SECTION
                  3.06

              	
                Intellectual
                  Property

              	
                37

              
	
                SECTION
                  3.07

              	
                Capitalization;
                  Equity Interests and Subsidiaries

              	
                38

              
	
                SECTION
                  3.08

              	
                Litigation;
                  Compliance with Laws

              	
                39

              
	
                SECTION
                  3.09

              	
                Agreements

              	
                39

              
	
                SECTION
                  3.10

              	
                Federal
                  Reserve Regulations

              	
                40

              
	
                SECTION
                  3.11

              	
                Investment
                  Company Act

              	
                40

              
	
                SECTION
                  3.12

              	
                Use
                  of Proceeds

              	
                40

              
	
                SECTION
                  3.13

              	
                Taxes

              	
                40

              
	
                SECTION
                  3.14

              	
                No
                  Material Misstatements

              	
                41

              
	
                SECTION
                  3.15

              	
                Labor
                  Matters

              	
                41

              
	
                SECTION
                  3.16

              	
                Solvency

              	
                41

              
	
                SECTION
                  3.17

              	
                Employee
                  Benefit Plans

              	
                41

              
	
                SECTION
                  3.18

              	
                Environmental
                  Matters

              	
                42

              
	
                SECTION
                  3.19

              	
                Insurance

              	
                43

              
	
                SECTION
                  3.20

              	
                Security
                  Documents

              	
                43

              
	
                SECTION
                  3.21

              	
                Original
                  Acquisition Documents; Representations and Warranties in Original
                  Acquisition Agreement

              	
                44

              


      

       

      
        
           

        

        
          -i-

          
            

          

        

        
           

        

      

       

      
        	
                SECTION
                  3.22

              	
                Foundry
                  Acquisition Documents; Representations and Warranties in Foundry
                  Acquisition Agreement

              	
                44

              
	
                SECTION
                  3.23

              	
                Anti-Terrorism
                  Law

              	
                45

              
	
                SECTION
                  3.24

              	
                Eligibility
                  for Resale Under Rule 144A

              	
                45

              
	
                SECTION
                  3.25

              	
                Private
                  Offering; No Integration or General Solicitations

              	
                46

              
	 
	
                ARTICLE
                  IV

                 

                REPRESENTATIONS
                  AND WARRANTIES OF PURCHASERS

              
	 	 	 
	
                SECTION
                  4.01

              	
                Authorization;
                  Enforceability

              	
                46

              
	
                SECTION
                  4.02

              	
                Investment
                  Purpose

              	
                46

              
	
                SECTION
                  4.03

              	
                Accredited
                  Investor Status

              	
                46

              
	
                SECTION
                  4.04

              	
                Reliance
                  on Exemptions

              	
                46

              
	
                SECTION
                  4.05

              	
                No
                  Conflict

              	
                47

              
	
                SECTION
                  4.06

              	
                Anti-Terrorism.

              	
                47

              
	 
	
                ARTICLE
                  V

                 

                CONDITIONS
                  TO PURCHASERS’ OBLIGATIONS

              
	 	 	 
	
                SECTION
                  5.01

              	
                First
                  Closing Date Conditions

              	
                47

              
	
                SECTION
                  5.02

              	
                Second
                  Closing Date Conditions

              	
                48

              
	 
	
                ARTICLE
                  VI

                 

                AFFIRMATIVE
                  COVENANTS

              
	 	 	 
	
                SECTION
                  6.01

              	
                Financial
                  Statements, Reports, etc.

              	
                52

              
	
                SECTION
                  6.02

              	
                Litigation
                  and Other Notices

              	
                55

              
	
                SECTION
                  6.03

              	
                Existence;
                  Businesses and Properties

              	
                55

              
	
                SECTION
                  6.04

              	
                Insurance

              	
                56

              
	
                SECTION
                  6.05

              	
                Obligations
                  and Taxes

              	
                57

              
	
                SECTION
                  6.06

              	
                Employee
                  Benefits

              	
                58

              
	
                SECTION
                  6.07

              	
                Maintaining
                  Records; Access to Properties and Inspections

              	
                58

              
	
                SECTION
                  6.08

              	
                Use
                  of Proceeds

              	
                58

              
	
                SECTION
                  6.09

              	
                Compliance
                  with Environmental Laws; Environmental Reports

              	
                58

              
	
                SECTION
                  6.10

              	
                Additional
                  Collateral; Additional Guarantors

              	
                59

              
	
                SECTION
                  6.11

              	
                Security
                  Interests; Further Assurances

              	
                60

              
	
                SECTION
                  6.12

              	
                Information
                  Regarding Collateral

              	
                61

              
	
                SECTION
                  6.13

              	
                Affirmative
                  Covenants with Respect to Leases

              	
                61

              
	
                SECTION
                  6.14

              	
                Payment
                  of Principal, Premium and Interest

              	
                61

              
	
                SECTION
                  6.15

              	
                Offer
                  To Repurchase upon Change in Control

              	
                61

              
	
                SECTION
                  6.16

              	
                Offer
                  To Purchase by Application of Excess Proceeds

              	
                62

              
	
                SECTION
                  6.17

              	
                [Reserved]

              	
                64

              
	
                SECTION
                  6.18

              	
                Dormant
                  Subsidiary

              	
                64

              
	
                SECTION
                  6.19

              	
                Post-Closing
                  Covenant

              	
                64

              


      

       

      
        
           

        

        
          -ii-

          
            

          

        

        
           

        

      

       

      
        	
                ARTICLE
                  VII

                 

                NEGATIVE
                  COVENANTS

              
	 	 	 
	
                SECTION
                  7.01

              	
                Indebtedness

              	
                65

              
	
                SECTION
                  7.02

              	
                Liens

              	
                66

              
	
                SECTION
                  7.03

              	
                Sale
                  and Leaseback Transactions

              	
                69

              
	
                SECTION
                  7.04

              	
                Investment,
                  Loan and Advances

              	
                69

              
	
                SECTION
                  7.05

              	
                Mergers
                  and Consolidations

              	
                70

              
	
                SECTION
                  7.06

              	
                Asset
                  Sales, Casualty Events

              	
                71

              
	
                SECTION
                  7.07

              	
                Acquisitions

              	
                72

              
	
                SECTION
                  7.08

              	
                Dividends

              	
                73

              
	
                SECTION
                  7.09

              	
                Transactions
                  with Affiliates

              	
                74

              
	
                SECTION
                  7.10

              	
                Financial
                  Covenants

              	
                74

              
	
                SECTION
                  7.11

              	
                Prepayments
                  of Other Indebtedness; Modifications of Organizational Documents
                  and Other
                  Documents, etc.

              	
                77

              
	
                SECTION
                  7.12

              	
                Limitation
                  on Certain Restrictions on Subsidiaries

              	
                78

              
	
                SECTION
                  7.13

              	
                Limitation
                  on Issuance of Capital Stock

              	
                78

              
	
                SECTION
                  7.14

              	
                Limitation
                  on Creation of Subsidiaries

              	
                79

              
	
                SECTION
                  7.15

              	
                Business

              	
                79

              
	
                SECTION
                  7.16

              	
                Limitation
                  on Accounting Changes

              	
                79

              
	
                SECTION
                  7.17

              	
                Fiscal
                  Year

              	
                79

              
	
                SECTION
                  7.18

              	
                Lease
                  Obligations

              	
                79

              
	
                SECTION
                  7.19

              	
                No
                  Further Negative Pledge

              	
                80

              
	
                SECTION
                  7.20

              	
                Stay,
                  Extension and Usury Laws

              	
                80

              
	
                SECTION
                  7.21

              	
                Payments
                  for Consents

              	
                80

              
	
                SECTION
                  7.22

              	
                Limitation
                  on Repurchases and Other Repayments of Notes

              	
                80

              
	
                SECTION
                  7.23

              	
                No
                  Integration

              	
                80

              
	 
	
                ARTICLE
                  VIII

                 

                GUARANTEE

              
	 	 	 
	
                SECTION
                  8.01

              	
                The
                  Guarantee

              	
                81

              
	
                SECTION
                  8.02

              	
                Obligations
                  Unconditional

              	
                81

              
	
                SECTION
                  8.03

              	
                Reinstatement

              	
                82

              
	
                SECTION
                  8.04

              	
                Subrogation;
                  Subordination

              	
                82

              
	
                SECTION
                  8.05

              	
                Remedies

              	
                82

              
	
                SECTION
                  8.06

              	
                Instrument
                  for the Payment of Money

              	
                83

              
	
                SECTION
                  8.07

              	
                Continuing
                  Guarantee

              	
                83

              
	
                SECTION
                  8.08

              	
                General
                  Limitation on Guarantee Obligations

              	
                83

              
	
                SECTION
                  8.09

              	
                Release
                  of Guarantors

              	
                83

              
	
                SECTION
                  8.10

              	
                Right
                  of Contribution

              	
                83

              
	 
	
                ARTICLE
                  IX

                 

                EVENTS
                  OF DEFAULT

              
	 	 	 
	
                SECTION
                  9.01

              	
                Events
                  of Default

              	
                84

              


      

       

      
        
           

        

        
          -iii-

          
            

          

        

        
           

        

      

       

      
        	
                SECTION
                  9.02

              	
                Waiver
                  of Past Defaults

              	
                87

              
	
                SECTION
                  9.03

              	
                Application
                  of Proceeds

              	
                87

              
	
                SECTION
                  9.04

              	
                The
                  Company’s Right To Cure

              	
                88

              
	 
	
                ARTICLE
                  X

                 

                THE
                  NOTES

              
	 	 	 
	
                SECTION
                  10.01

              	
                Form
                  and Execution

              	
                88

              
	
                SECTION
                  10.02

              	
                Terms
                  of the Notes

              	
                89

              
	
                SECTION
                  10.03

              	
                Denominations

              	
                89

              
	
                SECTION
                  10.04

              	
                Form
                  of Legend for the Notes

              	
                89

              
	
                SECTION
                  10.05

              	
                Payments
                  and Computations

              	
                90

              
	
                SECTION
                  10.06

              	
                Registration;
                  Registration of Transfer and Exchange

              	
                90

              
	
                SECTION
                  10.07

              	
                Transfer
                  Restrictions

              	
                91

              
	
                SECTION
                  10.08

              	
                Mutilated,
                  Destroyed, Lost and Stolen Notes

              	
                92

              
	
                SECTION
                  10.09

              	
                Persons
                  Deemed Owners

              	
                93

              
	
                SECTION
                  10.10

              	
                Cancellation

              	
                93

              
	
                SECTION
                  10.11

              	
                Home
                  Office Payment

              	
                93

              
	 
	
                ARTICLE
                  XI

                 

                REDEMPTION

              
	 	 	 
	
                SECTION
                  11.01

              	
                Right
                  of Redemption

              	
                94

              
	
                SECTION
                  11.02

              	
                Partial
                  Redemptions

              	
                94

              
	
                SECTION
                  11.03

              	
                Notice
                  of Redemption

              	
                94

              
	
                SECTION
                  11.04

              	
                Deposit
                  of Redemption Price

              	
                95

              
	
                SECTION
                  11.05

              	
                Notes
                  Payable on Redemption Date

              	
                95

              
	
                SECTION
                  11.06

              	
                Notes
                  Redeemed in Part

              	
                95

              
	 
	
                ARTICLE
                  XII

                 

                THE
                  AGENT

              
	 	 	 
	
                SECTION
                  12.01

              	
                Appointment
                  and Authority

              	
                95

              
	
                SECTION
                  12.02

              	
                Rights
                  as a Purchaser

              	
                95

              
	
                SECTION
                  12.03

              	
                Exculpatory
                  Provisions

              	
                96

              
	
                SECTION
                  12.04

              	
                Reliance
                  by Agent

              	
                96

              
	
                SECTION
                  12.05

              	
                Delegation
                  of Duties

              	
                97

              
	
                SECTION
                  12.06

              	
                Resignation
                  of Agent

              	
                97

              
	
                SECTION
                  12.07

              	
                Non-Reliance
                  on Agent and Other Purchasers

              	
                97

              
	 
	
                ARTICLE
                  XIII

                 

                LEGAL
                  DEFEASANCE

              
	 	 	 
	
                SECTION
                  13.01

              	
                Legal
                  Defeasance

              	
                98

              
	
                SECTION
                  13.02

              	
                Conditions
                  to Legal Defeasance

              	
                98

              


      

       

      
        
           

        

        
          -iv-

          
            

          

        

        
           

        

      

       

      
        	
                SECTION
                  13.03

              	
                Deposited
                  Money and U.S. Government Obligations To Be Held in Trust

              	
                99

              
	
                SECTION
                  13.04

              	
                Reinstatement

              	
                99

              
	 
	
                ARTICLE
                  XIV

                 

                MISCELLANEOUS

              
	 	 	 
	
                SECTION
                  14.01

              	
                Notices

              	
                100

              
	
                SECTION
                  14.02

              	
                Waivers;
                  Amendment

              	
                101

              
	
                SECTION
                  14.03

              	
                Expenses;
                  Indemnity

              	
                102

              
	
                SECTION
                  14.04

              	
                Successors
                  and Assigns

              	
                104

              
	
                SECTION
                  14.05

              	
                Survival
                  of Agreement

              	
                104

              
	
                SECTION
                  14.06

              	
                Counterparts;
                  Integration; Effectiveness

              	
                104

              
	
                SECTION
                  14.07

              	
                Severability

              	
                105

              
	
                SECTION
                  14.08

              	
                Governing
                  Law; Jurisdiction; Consent to Service of Process

              	
                105

              
	
                SECTION
                  14.09

              	
                Waiver
                  of Jury Trial

              	
                105

              
	
                SECTION
                  14.10

              	
                Headings

              	
                106

              
	
                SECTION
                  14.11

              	
                Confidentiality

              	
                106

              
	
                SECTION
                  14.12

              	
                Obligations
                  Absolute

              	
                106

              
	
                SECTION
                  14.13

              	
                Certain
                  Rights and Obligations Among Noteholders

              	
                107

              
	
                SECTION
                  14.14

              	
                Absence
                  of Personal Liability

              	
                107

              
	
                SECTION
                  14.15

              	
                Acknowledgment

              	
                107

              


      

    

     

    SCHEDULES 

     

    
      	
              Schedule
                A-1

            	
              Information
                Relating to Purchasers at First Closing Date

            
	
              Schedule
                A-2

            	
              Information
                Relating to Purchasers at Second Closing Date

            
	
              Schedule
                1.01A

            	
              Foundry
                Seller Note Refinancing

            
	
              Schedule
                3.03

            	
              Governmental
                Approvals; Compliance with Laws

            
	
              Schedule
                3.04(d)

            	
              Assumptions
                Used in and Qualifications of Forecasts

            
	
              Schedule
                3.05(d)

            	
              Collateral
                Matters

            
	
              Schedule
                3.06(a)

            	
              Intellectual
                Property

            
	
              Schedule
                3.06(c)

            	
              Violations
                or Proceedings

            
	
              Schedule
                3.07(a)

            	
              Equity
                Interests and Options

            
	
              Schedule
                3.08

            	
              Litigation

            
	
              Schedule
                3.09

            	
              Material
                Agreements

            
	
              Schedule
                3.12

            	
              Use
                of Proceeds

            
	
              Schedule
                3.15

            	
              Labor
                Matters

            
	
              Schedule
                3.18

            	
              Environmental
                Matters

            
	
              Schedule
                3.19

            	
              Insurance

            
	
              Schedule
                3.21

            	
              Original
                Acquisition Documents

            
	
              Schedule
                3.22

            	
              Foundry
                Acquisition Documents

            
	
              Schedule
                7.01(b)

            	
              Existing
                Indebtedness

            
	
              Schedule
                7.02(c)

            	
              Existing
                Liens

            
	
              Schedule
                7.04(b)

            	
              Existing
                Investments

            
	
              Schedule
                7.09(e)

            	
              Existing
                Agreements

            


    

    


    
      
        
        

      

      
        -v-

        
          

        

      

      
        
        

      

    

     

    EXHIBITS

     

    
      	
              Exhibit
                A-1

            	
              Form
                of Initial Note

            
	
              Exhibit
                A-2

            	
              Form
                of Additional Note

            
	
              Exhibit
                B

            	
              Form
                of Guarantee

            
	
              Exhibit
                C

            	
              Form
                of Compliance Certificate

            
	
              Exhibit
                D

            	
              Form
                of Joinder Agreement

            
	
              Exhibit
                E-1

            	
              Form
                of Opinion of Bryan Cave LLP

            
	
              Exhibit
                E-2

            	
              Form
                of Opinion of Sullivan & Triggs, LLP

            
	
              Exhibit
                E-3

            	
              Form
                of UK Opinion of Bryan Cave LLP

            
	
              Exhibit
                F

            	
              Form
                of Landlord Access Agreement 

            
	
              Exhibit
                G

            	
              [RESERVED]

            
	
              Exhibit
                H-1

            	
              Form
                of Perfection Certificate

            
	
              Exhibit
                H-2

            	
              Form
                of Perfection Certificate Supplement

            
	
              Exhibit
                I

            	
              Form
                of Security Agreement

            
	
              Exhibit
                J

            	
              Form
                of Solvency Certificate

            
	
              Exhibit
                K

            	
              Form
                of Intercompany Note

            
	
              Exhibit
                L

            	
              [RESERVED]
                

            
	
              Exhibit
                M

            	
              Management
                Rights Letter

            
	
              Exhibit
                N-1

            	
              Form
                of Initial Warrant

            
	
              Exhibit
                N-2

            	
              Form
                of Additional Warrant

            
	
              Exhibit
                O

            	
              Form
                of Certificate of Designations

            
	
              Exhibit
                P

            	
              [RESERVED]

            
	
              Exhibit
                Q

            	
              Form
                of Stockholders Agreement

            
	
              Exhibit
                R-Annual

            	
              Form
                of Annual Key Operational Information and Statistics
                Report

            
	
              Exhibit
                R-Quarterly

            	
              Form
                of Quarterly Key Operational Information and Statistics
                Report

            


    

    


    
      
        
        

      

      
        -vi-

        
          

        

      

      
        
        

      

    


    AMENDED
      AND RESTATED PURCHASE AGREEMENT

     

    This
      AMENDED AND RESTATED PURCHASE AGREEMENT (this “Agreement”)
      is
      dated as of May 16, 2007, among DIGITAL DOMAIN, INC., a Delaware corporation
      (the “Company”),
      WYNDCREST DD HOLDINGS, INC, a Delaware corporation (“Holdings”),
      the
      Subsidiary Guarantors (such term and each other capitalized term used but not
      elsewhere defined herein having the meaning given to it in Article I
      and
      together with Holdings and the Company, the “Issuers”),
      the
      purchasers listed on Schedules
      A-1
      and
A-2
      hereto
      (the “Purchasers”),
      and
      FMP AGENCY SERVICES, LLC as agent (in such capacity, the “Agent”)
      for
      the Secured Parties.

     

    WITNESSETH:

     

    WHEREAS,
      on the First Closing Date (as defined below), the Purchasers entered into that
      certain Purchase Agreement, dated as of the First Closing Date, by and among
      the
      Purchasers and certain of the Issuers (as defined below) (the “Original
      Purchase Agreement”)
      pursuant to which the Purchasers purchased from such Issuers the Initial
      Purchased Securities (as defined below).

     

    WHEREAS,
      on May 12, 2006, pursuant to an Amended and Restated Agreement and Plan of
      Reorganization by and among Holdings, DD Acquisition Subsidiary, Inc., the
      Company and certain participating stockholders listed therein (the “Original
      Participating Stockholders”)
      dated
      as of May 12, 2006 (the “Original
      Acquisition Agreement”)
      Holdings acquired (the “Original
      Acquisition”)
      all of
      the outstanding Equity Interests of the Company for an aggregate purchase price
      of $34,500,000.

     

    WHEREAS,
      as consideration for all of the outstanding Equity Interests of the Company,
      Holdings paid $4,500,000 in cash to the Original Participating Stockholders
      (the
“Original
      Equity Financing”)
      and
      the Company issued $30,000,000 in original principal amount of senior promissory
      notes to the Original Participating Stockholders, $4,500,000 of the aggregate
      principal amount of which senior promissory notes were repaid prior to the
      First
      Closing Date (the “Original
      Seller Notes”).

     

    WHEREAS,
      upon the terms and subject to the conditions set forth in the Original Purchase
      Agreement, the Company agreed to sell to the Purchasers and each Purchaser,
      acting severally and not jointly, agreed to purchase from the Company,
      $12,500,000 in original aggregate principal amount of the Company’s Senior
      Secured Notes due 2011 in the form of Exhibit
      A-1
      hereto
      (the “Initial Notes”).

     

    WHEREAS,
      upon the terms and subject to the conditions set forth in the Original Purchase
      Agreement, Holdings agreed to sell to the Purchasers and each Purchaser, acting
      severally and not jointly, agreed to purchase from Holdings, in aggregate,
      (i) stock purchase warrants (the “Initial Warrants”)
      each
      Initial Warrant evidencing the right to purchase initially one (1) share of
      Holdings’ Common Stock, $0.0001 par value, per share (the “Common
      Stock”),
      which
      Initial Warrants are in the form of Exhibit
      N-1
      hereto
      and (ii) 1,000,000 shares (the “Purchased
      Preferred Stock”)
      of
      Holdings’ 8% Senior Cumulative Convertible Preferred Stock, $0.0001 par value
      per share, issued pursuant to the Certificate of Designations.

     

    WHEREAS,
      prior to the First Closing Date, Holdings consummated an offer to sell shares
      of
      the Common Stock for gross proceeds of approximately $17,437,930 in a private
      placement (the “Original Equity
      Offering”).

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    WHEREAS,
      effective March 23, 2007 (the “Foundry
      Closing Date”),
      pursuant to a Share Purchase Agreement by and among Holdings, The Foundry
      Visionmongers Ltd., a company organized under the laws of England and Wales
      (“Foundry”),
      and
      the sellers party thereto (the “Foundry
      Sellers”)
      (the
“Foundry
      Acquisition Agreement”),
      Holdings acquired from the Foundry Sellers all of the issued and outstanding
      Equity Interests of Foundry for an aggregate purchase price of £5,050,000 (the
“Foundry
      Acquisition”),
      and
      subsequently contributed such Equity Interests to Wyndcrest UK Holdings Limited,
      a direct Wholly Owned Subsidiary of Holdings organized under the laws of England
      and Wales (“Wyndcrest
      UK”).

     

    WHEREAS,
      on the Foundry Closing Date, as consideration for all of the outstanding Equity
      Interests of Foundry, Holdings (i) paid £550,000 in cash to the Foundry Sellers,
      (ii) issued £2,000,000 of restricted Common Stock to the Foundry Sellers and
      (iii) issued £2,500,000 in original principal amount of promissory notes to the
      Foundry Sellers, the primary obligations for which notes were subsequently
      assumed by Wyndcrest UK and guaranteed by Holdings (the “Foundry
      Seller Notes”).

     

    WHEREAS,
      certain of the Issuers and Falcon, as the sole Noteholder under the Original
      Purchase Agreement, entered into the Limited and Conditional Waiver, Consent
      and
      Agreement dated as of the Foundry Closing Date whereby Falcon agreed to waive
      certain requirements set forth in the Original Purchase Agreement and the
      parties thereto agreed to enter into this Agreement within thirty (30) calendar
      days of the date thereof.

     

    WHEREAS,
      upon the terms and subject to the conditions set forth herein, the Company
      agrees to sell to the Purchasers and each Purchaser, acting severally and not
      jointly, agrees to purchase from the Company, $7,000,000 in original aggregate
      principal amount of the Company’s Series B Senior Secured Notes due 2011 in the
      form of Exhibit
      A-2
      hereto
      (the “Additional Notes”).

     

    WHEREAS,
      upon the terms and subject to the conditions set forth herein, Holdings agrees
      to sell to the Purchasers and each Purchaser, acting severally and not jointly,
      agrees to purchase from Holdings, in aggregate, stock purchase warrants (the
      “Additional Warrants”),
      each
      Additional Warrant evidencing the right to purchase initially one (1) share
      of
      Holdings’ Common Stock, which Additional Warrants are in the form of
Exhibit
      N-2
      hereto.

     

    WHEREAS,
      the parties hereto have agreed to amend and restate the Original Purchase
      Agreement in its entirety to read as set forth in this Agreement, and it has
      been agreed by the parties to the Original Purchase Agreement that the Initial
      Purchased Securities and all other “Obligations” under (and as defined in) the
      Original Purchase Agreement (including indemnities) shall be governed by and
      deemed to be outstanding under this Agreement with the intent that the terms
      of
      this Agreement shall supersede the terms of the Original Purchase Agreement
      (which shall hereafter have no further effect upon the parties thereto other
      than with respect to any action, event, representation, warranty or covenant
      occurring, made or applying prior to the Second Closing Date), and all
      references to the Original Purchase Agreement in any Financing Document or
      other
      document or instrument delivered in connection therewith shall be deemed to
      refer to this Agreement and the provisions hereof; provided that it is agreed
      and understood that this Agreement does not constitute a novation, satisfaction
      or payment of any Obligation under the Original Purchase Agreement or any other
      Financing Document except as expressly modified by this Agreement, nor does
      it
      operate as a waiver of any right, power or remedy of any Noteholder under any
      Financing Document.

     

    
      
        
        

      

      
        -2-

        
          

        

      

      
        
        

      

    

     

    WHEREAS,
      a portion of the proceeds of the Initial Notes, Initial Warrants, Purchased
      Preferred Stock and Original Equity Offering were used to prepay the Initial
      Seller Notes and a portion of the proceeds of the Second Closing Purchased
      Securities will be used to prepay the Foundry Seller Notes.

     

    WHEREAS,
      the obligations of the Company under this Agreement and the Notes are and will
      be guaranteed by the Guarantors, such Guarantees to be in the form of
Exhibit
      B.

     

    WHEREAS,
      the holders of the Warrants, Warrant Shares, the Conversion Shares and Purchased
      Preferred Stock from time to time are and will be entitled to the benefits
      of
      the Stockholders Agreement in the form of Exhibit
      Q
      hereto
      (the “Stockholders
      Agreement”),
      dated
      the First Closing Date.

     

    WHEREAS,
      the Issuers have duly authorized the creation and issuance of the Additional
      Notes, the Guarantees and the Additional Warrants, as applicable, and the
      execution and delivery of this Agreement and the other Financing Documents,
      as
      applicable.

     

    WHEREAS,
      all things necessary to make this Agreement, the Additional Notes (when issued
      and delivered hereunder), the Guarantees (when validly endorsed on the
      Additional Notes), the Additional Warrants and each other Financing Document
      valid and binding obligations of each applicable Issuer in accordance with
      their
      respective terms have been done.

     

    NOW,
      THEREFORE, the parties hereto agree to amend and restate the Original Purchase
      Agreement and the Original Purchase Agreement is hereby amended and restated
      in
      its entirety as follows:

     

    ARTICLE
      I

     

    DEFINITIONS

     

    SECTION
      1.01 Defined
      Terms.
      As used
      in this Agreement, the following terms shall have the meanings specified
      below:

     

    “Accredited
      Investor”
shall
      mean any person that is an “accredited investor” within the meaning of Rule
      501(a) under the Securities Act.

     

    “Acquisition
      Consideration”
shall
      mean the purchase consideration for any Permitted Acquisition and all other
      payments by Holdings or any of its Subsidiaries in exchange for, or as part
      of,
      or in connection with, any Permitted Acquisition, whether paid in cash or by
      exchange of Equity Interests or of properties or otherwise and whether payable
      at or prior to the consummation of such Permitted Acquisition or deferred for
      payment at any future time, whether or not any such future payment is subject
      to
      the occurrence of any contingency, and includes any and all payments
      representing the purchase price and any assumptions of Indebtedness, “earn-outs”
and other agreements to make any payment the amount of which is, or the terms
      of
      payment of which are, in any respect subject to or contingent upon the revenues,
      income, cash flow or profits (or the like) of any person or business.


     

    “Advisors”
shall
      have the meaning assigned to such term in Section 14.03(a).

     

    “Additional
      Notes”
shall
      have the meaning assigned to such term in the recitals hereto.

     

    
      
        
        

      

      
        -3-

        
          

        

      

      
        
        

      

    

     

    “Additional
      Warrants”
shall
      have the meaning assigned to such term in the recitals hereto.

     

    “Affiliate”
shall
      mean, when used with respect to a specified person, another person that
      directly, or indirectly through one or more intermediaries, Controls or is
      Controlled by or is under common Control with the person specified; provided,
      however,
      that,
      for purposes of Section 7.09,
      the
      term “Affiliate” shall also include (i) any person that directly or
      indirectly owns more than 10% of any class of Equity Interests of the person
      specified or (ii) any person that is an executive officer or director of
      the person specified. No Purchaser shall be considered an “Affiliate” of
      Holdings or any of its Subsidiaries for purposes of this Agreement.

     

    “Agent”
shall
      have the meaning assigned to such term in the preamble hereto.

     

    “Agreement”
shall
      have the meaning assigned to such term in the preamble hereto.

     

    “Anti-Terrorism
      Laws”
shall
      have the meaning assigned to such term in Section 3.23.

     

    “Applicable
      Law”
shall
      mean all applicable laws, statutes, treaties, rules, codes (including building
      codes), ordinances, regulations, certificates, orders and licenses of, and
      interpretations by, any Governmental Authority and judgments, decrees,
      injunctions, writs, permits, orders or like governmental action of any
      Governmental Authority (including any Environmental Law and any laws pertaining
      to health or safety) applicable to any Issuer or any of its property or
      operations.

     

    “Applicable
      Premium”
shall
      mean, at any time and with respect to any Notes being repurchased or otherwise
      repaid in whole or in part during any of the periods set forth below, an amount
      equal to the percentage, set forth opposite such period, of the aggregate
      principal amount of the Notes required to be repurchased or otherwise repaid
      at
      such time:

     

    
      	
              Period:

            	 	
              Applicable
                Premium:

            
	
              First
                Closing Date - July 20, 2007

            	 	
              5.0%

            
	
              July
                21, 2007 - July 20, 2008

            	 	
              4.0%

            
	
              July
                21, 2008 - July 20, 2009

            	 	
              3.0%

            
	
              July
                21, 2009 and thereafter

            	 	
              1.0%

            


    

    


    “Applicable
      Rate”
shall
      have the meaning assigned to such term in Exhibits A-1
      and
      A-2
      hereto.

     

    “Asset
      Sale”
shall
      mean (a) any conveyance, sale, lease, sublease, assignment, transfer or
      other disposition (including by way of merger or consolidation and including
      any
      Sale and Leaseback Transaction) of any property excluding sales of inventory
      and
      dispositions of cash and cash equivalents, in each case, in the ordinary course
      of business, by Holdings or any of its Subsidiaries and (b) any issuance or
      sale of any Equity Interests of any Subsidiary of any Issuer, in each case,
      to
      any person other than (i) the Company, (ii) any Guarantor,
      (iii) other than for purposes of Section
      7.06,
      any
      other Subsidiary, or (iv) with respect to any Common Stock of the Company
      issued to any holder of an option granted under the employee stock option plan
      of the Company, but only to the extent outstanding as of the effective date
      of
      the Original Acquisition, such holder.

     

    “Attributable
      Indebtedness”
shall
      mean, when used with respect to any Sale and Leaseback Transaction, as at the
      time of determination, the present value (discounted at a rate equivalent to
      the
      Company’s then-current weighted average cost of funds for borrowed money as at
      the time of determination, compounded on a semi-annual basis) of the total
      obligations of the lessee for rental payments during the remaining term of
      the
      lease included in any such Sale and Leaseback Transaction.

     

    
      
        
        

      

      
        -4-

        
          

        

      

      
        
        

      

    

     

    “Bankruptcy
      Law” means
      Title 11 of the United States Code or any similar federal, state or foreign
      bankruptcy, insolvency, reorganization or other law for the relief of
      debtors.

     

    “Board”
shall
      mean the Board of Governors of the Federal Reserve System of the United
      States.

     

    “Board
      of Directors”
shall
      mean, with respect to any person, (i) in the case of any corporation, the
      board of directors of such person, (ii) in the case of any limited
      liability company, the board of managers of such person, (iii) in the case
      of any partnership, the Board of Directors of the general partner of such person
      and (iv) in any other case, the functional equivalent of the
      foregoing.

     

    “Business
      Day”
shall
      mean any day other than a Saturday, Sunday or other day on which banks in New
      York City are authorized or required by law to close.

     

    “Capital
      Assets”
      shall
      mean, with respect to any person, all equipment, fixed assets, intellectual
      property, software and Real Property or improvements of such person, or
      replacements or substitutions therefor or additions thereto, that, in accordance
      with GAAP, have been or should be reflected as additions to property, plant
      or
      equipment on the balance sheet of such person.

     

    “Capital
      Expenditures”
shall
      mean, for any period, without duplication, all expenditures made directly or
      indirectly by Holdings and its Subsidiaries during such period for Capital
      Assets (whether paid in cash or other consideration, financed by the incurrence
      of Indebtedness or accrued as a liability) but excluding (i) expenditures made
      in connection with the replacement, substitution or restoration of property
      pursuant to Section
      7.06(b),
      (ii)
      solely for purposes of Section 7.10(d),
      any
      portion of the increase thereto attributable solely to acquisitions of property,
      plant and equipment in Permitted Acquisitions, (iii) all payments of salary
      and
      other forms of compensation made to employees of and consultants to the Foundry
      in connection with software development, to the extent that such payments are
      required to be capitalized under GAAP and (iv) all expenditures by the Foundry
      of funds received by the Foundry pursuant to research and development grants
      made by one or more Governmental Authorities. For purposes of this definition,
      the purchase price of equipment or other fixed assets that are purchased
      simultaneously with the trade in of existing assets or with insurance proceeds
      shall be included in Capital Expenditures only to the extent of the gross amount
      by which such purchase price exceeds the credit granted by the seller of such
      assets for the assets being traded in at such time or the amount of such
      insurance proceeds, as the case may be.

     

    “Capital
      Lease Obligations”
of
      any
      person shall mean the obligations of such person to pay rent or other amounts
      under any lease of (or other arrangement conveying the right to use) real or
      personal property, or a combination thereof, which obligations are required
      to
      be classified and accounted for as capital leases on a balance sheet of such
      person under GAAP, and the amount of such obligations shall be the capitalized
      amount thereof determined in accordance with GAAP.

     

    “Cash
      Equivalents”
shall
      mean, as to any person, (a) securities issued, or directly, unconditionally
      and fully guaranteed or insured, by the United States or any agency or
      instrumentality thereof (provided
      that the
      full faith and credit of the United States is pledged in support thereof) having
      maturities of not more than one year from the date of acquisition by such
      person; (b) time deposits and certificates of deposit of any commercial
      bank having, or which is the principal banking subsidiary of a bank holding
      company organized under the laws of the United States, any state thereof or
      the
      District of Columbia having, capital and surplus aggregating in excess of
      $500,000,000 and a rating of “A” (or such other similar equivalent rating) or
      higher by at least one nationally recognized statistical rating organization
      (as
      defined in Rule 436 under the Securities Act) with maturities of not more than
      one year from the date of acquisition by such person; (c) repurchase
      obligations with a term of not more than 30 days for underlying securities
      of the types described in clause (a) above entered into with any bank
      meeting the qualifications specified in clause (b) above, which repurchase
      obligations are secured by a valid perfected security interest in the underlying
      securities; (d) commercial paper issued by any person incorporated in the
      United States rated at least A-1 or the equivalent thereof by Standard &
Poor’s Rating Service or at least P-1 or the equivalent thereof by Moody’s
      Investors Service Inc., and in each case maturing not more than one year after
      the date of acquisition by such person; (e) investments in money market
      funds substantially all of whose assets are comprised of securities of the
      types
      described in clauses (a) through (d) above; and (f) demand deposit
      accounts maintained in the ordinary course of business.

     

    
      
        
        

      

      
        -5-

        
          

        

      

      
        
        

      

    

     

    “Casualty
      Event”
shall
      mean any involuntary loss of title, any involuntary loss of, damage to or any
      destruction of, or any condemnation or other taking (including by any
      Governmental Authority) of, any property of Holdings or any of its Subsidiaries.
      “Casualty Event” shall include but not be limited to any taking of all or any
      part of any Real Property of any person or any part thereof, in or by
      condemnation or other eminent domain proceedings pursuant to any Requirement
      of
      Law, or by reason of the temporary requisition of the use or occupancy of all
      or
      any part of any Real Property of any person or any part thereof by any
      Governmental Authority, civil or military, or any settlement in lieu
      thereof.

     

    “CERCLA”
shall
      mean the Comprehensive Environmental Response, Compensation, and Liability
      Act
      of 1980, as amended, 42 U.S.C. § 9601 et
      seq. and
      all
      implementing regulations.

     

    “Certificate
      of Designations”
shall
      mean the Certificate of Designation of the Powers, Preferences and Relative,
      Participating, Optional and Other Special Rights of 8.0% Senior Cumulative
      Convertible Preferred Stock, and Qualifications, Limitations and Restrictions
      Thereof in the form of Exhibit O
      hereto.

     

    A
      “Change
      in Control”
shall
      be deemed to have occurred if:

     

    (a) other
      than as permitted by Section
      6.17,
      Holdings at any time ceases to own 100% of the Equity Interests of the Company,
      Wyndcrest UK or Foundry;

     

    (b) prior
      to
      a QIPO, (x) (i) the Permitted Holders and Falcon (including for this
      purpose any Affiliate of Falcon) (collectively) cease to own, or to have the
      power to vote or direct the voting of, Voting Stock of Holdings representing
      not
      less than 35% of the voting power of the total outstanding Voting Stock of
      Holdings or (ii) the Permitted Holders and Falcon (including for this
      purpose any Affiliate of Falcon) (collectively) cease to own Equity Interests
      representing not less than 35% of the total economic interests of the Equity
      Interests of Holdings or (y) the Permitted Holders (collectively) cease to
      own at least 90% of the Equity Interests of Holdings held by the Permitted
      Holders on the First Closing Date;

     

    (c) at
      any
      time, any “person” or “group” (as such terms are used in Sections 13(d) and
      14(d) of the Exchange Act), other than one or more Permitted Holders or Falcon
      (including for this purpose any Affiliate of Falcon), is or becomes the
      beneficial owner (as defined in Rules 13d-3 and 13d-5 under the Exchange Act,
      except that for purposes of this clause such person or group shall be deemed
      to
      have “beneficial ownership” of all securities that such person or group has the
      right to acquire, whether such right is exercisable immediately or only after
      the passage of time), directly or indirectly, of Voting Stock of Holdings
      representing more than 35% of the voting power of the total outstanding Voting
      Stock of Holdings, and at such time or any time thereafter the Permitted Holders
      and Falcon (including for this purpose any Affiliate of Falcon) (collectively)
      shall fail to own, or to have the power to vote or direct the voting of, Voting
      Stock of Holdings representing a greater percentage of the voting power of
      the
      total outstanding Voting Stock of Holdings; or

     

    
      
        
        

      

      
        -6-

        
          

        

      

      
        
        

      

    

     

    (d) upon
      and
      following a QIPO, during any period of two consecutive years, individuals who
      at
      the beginning of such period constituted the Board of Directors of Holdings
      (together with any new directors whose election to such Board of Directors
      or
      whose nomination for election was approved by the Permitted Holders and Falcon
      (including for this purpose any Affiliate of Falcon), it being understood that
      the consent of Falcon shall not unreasonably be withheld or delayed, or by
      a
      vote of a majority of the members of the Board of Directors of Holdings, which
      members comprising such majority were either directors at the beginning of
      such
      period or whose election or nomination for election was previously so approved)
      cease for any reason to constitute a majority of the Board of Directors of
      Holdings.

     

    For
      purposes of this definition, a person shall not be deemed to have beneficial
      ownership of Equity Interests subject to a stock purchase agreement, merger
      agreement or similar agreement until the consummation of the transactions
      contemplated by such agreement, and a holder of Equity Interests shall not
      be
      deemed a member of a “group” solely by virtue of being a party to a registration
      rights agreement.

     

    “Change
      in Control Offer”
shall
      have the meaning assigned to such term in Section 6.15(a).

     

    “Change
      in Control Payment”
shall
      have the meaning assigned to such term in Section 6.15(a).
      

     

    “Change
      in Control Payment Date”
shall
      have the meaning assigned to such term in Section 6.15(b).

     

    “Change
      in Control Premium”
shall
      mean, with respect to any Notes being repurchased or otherwise repaid in whole
      or in part for the period from the First Closing Date to July 20, 2007, the
      lesser of (i) 25% and (ii) the greater of (x) 5% and (y) the IRR as of the
      date of a Change in Control earned by the Investors on their Investments in
      Holdings and its Subsidiaries made on or prior to the First Closing Date (it
      being understood that during such period, the Change in Control Premium shall
      not be less than 5.0%), and thereafter shall mean, with respect to any Notes
      being repurchased or otherwise repaid in whole or in part during any of the
      periods set forth below, an amount equal to the percentage, set forth opposite
      such period, of the aggregate principal amount of the Notes required to be
      repurchased or otherwise repaid at such time:

     

    
      	
              Period:

            	 	
              Premium:

            
	
              July
                21, 2007 - July 20, 2008

            	 	
              4.0%

            
	
              July
                21, 2008 - July 20, 2009

            	 	
              3.0%

            
	
              July
                21, 2009 and thereafter

            	 	
              1.0%

            


    

     

    
      
        
        

      

      
        -7-

        
          

        

      

      
        
        

      

    

     

    “Change
      in Law”
shall
      mean the occurrence, after the date of this Agreement, of any of the following:
      (a) the adoption or taking into effect of any law, treaty, order, policy,
      rule or regulation, (b) any change in any law, treaty, order, policy, rule
      or regulation or in the administration, interpretation or application thereof
      by
      any Governmental Authority or (c) the making or issuance of any request,
      guideline or directive (whether or not having the force of law) by any
      Governmental Authority.

     

    “Code”
shall
      mean the Internal Revenue Code of 1986, as amended.

     

    “Collateral”
shall
      mean, collectively, all of the Security Agreement Collateral, any Mortgaged
      Property and all other property of whatever kind and nature subject or purported
      to be subject from time to time to a Lien under any Security
      Document.

     

    “Commission”
shall
      mean the Securities and Exchange Commission, as from time to time constituted,
      created under the Exchange Act or, if at any time after the execution of this
      Agreement such Commission is not existing and performing the duties now assigned
      to it under the Exchange Act, the body performing such duties at such
      time.

     

    “Common
      Stock”
shall
      have the meaning assigned to such term in the recitals hereto.

     

    “Company”
shall
      have the meaning assigned to such term in the preamble hereto.

     

    “Compliance
      Certificate”
shall
      mean a certificate of a Financial Officer substantially in the form of
Exhibit C.

     

    “Consolidated
      Amortization Expense”
shall
      mean, for any period, the amortization expense of Holdings and its Subsidiaries
      for such period, determined on a consolidated basis in accordance with
      GAAP.

     

    “Consolidated
      Depreciation Expense”
shall
      mean, for any period, the depreciation expense of Holdings and its Subsidiaries
      for such period, determined on a consolidated basis in accordance with
      GAAP.

     

    “Consolidated
      EBITDA”
shall
      mean, for any period, Consolidated Net Income for such period, adjusted by
      (x) adding
      thereto,
      in each
      case only to the extent (and in the same proportion) deducted in determining
      such Consolidated Net Income and without duplication (and with respect to the
      portion of Consolidated Net Income attributable to any Subsidiary of Holdings
      only if a corresponding amount would be permitted at the date of determination
      to be distributed to Holdings by such Subsidiary without prior approval (that
      has not been obtained), pursuant to the terms of its Organizational Documents
      and all agreements (other than the Financing Documents), instruments and
      Requirements of Law applicable to such Subsidiary or its
      equityholders):

     

    (a) Consolidated
      Interest Expense for such period,

     

    (b) Consolidated
      Amortization Expense for such period,

     

    (c) Consolidated
      Depreciation Expense for such period,

     

    (d) Consolidated
      Tax Expense for such period, 

     

    
      
        
        

      

      
        -8-

        
          

        

      

      
        
        

      

    

     

    (e) costs
      and
      expenses directly incurred in connection with the Transactions (not to exceed
      $1,750,000), and

     

    (f) the
      aggregate amount of all other non-cash charges reducing Consolidated Net Income
      (excluding any non-cash charge that results in an accrual of a reserve for
      cash
      charges in any future period) for such period; and

     

    (y) subtracting
      therefrom,
      without
      duplication:

     

    (a) the
      aggregate amount of all non-cash items increasing Consolidated Net Income (other
      than the accrual of revenue or recording of receivables in the ordinary course
      of business) for such period;

     

    (b) any
      payments of salary and other forms of compensation made to employees of and
      consultants to the Foundry in connection with software development, to the
      extent that such payments are required to be capitalized under GAAP during
      such
      period; and

     

    (c) all
      expenditures during such period by the Foundry of funds received by the Foundry
      pursuant to research and development grants (to the extent such grants were
      treated as revenue in determining Consolidate Net Income) made by one or more
      Governmental Authorities.

     

    Consolidated
      EBITDA shall be calculated on a Pro Forma Basis to give effect to the
      Acquisition, any Permitted Acquisition (including, without limitation, the
      Foundry Acquisition) and Asset Sales (other than any dispositions in the
      ordinary course of business) consummated at any time on or after the first
      day
      of the Test Period thereof as if each such Permitted Acquisition had been
      effected on the first day of such period and as if the Acquisition and each
      such
      Asset Sale had been consummated on the day prior to the first day of such
      period.

     

    Notwithstanding
      the foregoing, all payments of consideration (which amount, for the avoidance
      of
      doubt, shall not include payments to employees of Holdings and any of its
      Subsidiaries pursuant to employment agreements or other salary arrangements,
      without regard to GAAP) to the Foundry Sellers pursuant to the terms of the
      Foundry Acquisition Documents that are required to be characterized under GAAP
      as compensation expense shall be excluded in their entirety from the calculation
      of Consolidated EBITDA.

     

    “Consolidated
      Fixed Charge Coverage Ratio”
shall
      mean, for any Test Period, the ratio of (a) Consolidated EBITDA for such
      Test Period less Unfinanced Capital Expenditures for such Test Period to
      (b) Consolidated Fixed Charges for such Test Period.

     

    “Consolidated
      Fixed Charges”
shall
      mean, for any period, the sum, without duplication, of:

     

    (a) Consolidated
      Interest Expense for such period;

     

    (b) all
      cash
      payments in respect of income taxes made by Holdings or any of its Subsidiaries
      during such period (net of any cash refund in respect of income taxes actually
      received during such period);

     

    
      
        
        

      

      
        -9-

        
          

        

      

      
        
        

      

    

     

    (c) the
      principal amount of all scheduled amortization payments on all Indebtedness
      (including the principal component of all Capital Lease Obligations) of Holdings
      and its Subsidiaries for such period (as determined on the first day of the
      respective period); 

     

    (d) the
      product of (i) all dividend payments on any series of Disqualified Capital
      Stock
      of Holdings or any of its Subsidiaries (other than dividend payments to Holdings
      or any of its Subsidiaries) multiplied
      by
      (ii) a
      fraction, the numerator of which is one and the denominator of which is one
      minus the then current combined federal, state and local statutory tax rate
      of
      Holdings and its Subsidiaries, expressed as a decimal; and

     

    (e) the
      product of (i) all cash dividend payments on any Preferred Stock (other than
      Disqualified Capital Stock) of Holdings or any of its Subsidiaries (other than
      dividend payments to Holdings or any of its Subsidiaries) multiplied by (ii)
      a
      fraction, the numerator of which is one and the denominator of which is one
      minus the then current combined federal, state and local statutory tax rate
      of
      Holdings and its Subsidiaries, expressed as a decimal.

     

    “Consolidated
      Indebtedness”
shall
      mean, as at any date of determination, the aggregate amount of all Indebtedness
      of Holdings and its Subsidiaries, determined on a consolidated basis in
      accordance with GAAP.

     

    “Consolidated
      Interest Coverage Ratio”
shall
      mean, for any Test Period, the ratio of (x) Consolidated EBITDA for such Test
      Period to (y) Consolidated Interest Expense for such Test Period.

     

    “Consolidated
      Interest Expense”
shall
      mean, for any period, the total consolidated interest expense of Holdings and
      its Subsidiaries for such period determined on a consolidated basis in
      accordance with GAAP plus,
      without
      duplication:

     

    (a) imputed
      interest on Capital Lease Obligations and Attributable Indebtedness of Holdings
      and its Subsidiaries for such period;

     

    (b) commissions,
      discounts and other fees and charges owed by Holdings or any of its Subsidiaries
      with respect to letters of credit securing financial obligations, bankers’
acceptance financing and receivables financings for such period;

     

    (c) amortization
      of debt issuance costs, debt discount or premium and other financing fees and
      expenses incurred by Holdings or any of its Subsidiaries for such
      period;

     

    (d) cash
      contributions to any employee stock ownership plan or similar trust made by
      Holdings or any of its Subsidiaries to the extent such contributions are used
      by
      such plan or trust to pay interest or fees to any person (other than Holdings
      or
      a Wholly Owned Subsidiary) in connection with Indebtedness incurred by such
      plan
      or trust for such period;

     

    (e) all
      interest paid or payable with respect to discontinued operations of Holdings
      or
      any of its Subsidiaries for such period;

     

    (f) the
      interest portion of any deferred payment obligations of Holdings or any of
      its
      Subsidiaries for such period; and

     

    (g) all
      interest on any Indebtedness of Holdings or any of its Subsidiaries of the
      type
      described in clause (f) or (k) of the definition of “Indebtedness” for such
      period;

     

    
      
        
        

      

      
        -10-

        
          

        

      

      
        
        

      

    

     

    provided
      that (a)
      to the extent directly related to the Original Transactions or the Second
      Closing Transactions, debt issuance costs, debt discount or premium, other
      financing fees and expenses, the accretion of original issue discount on the
      Notes and any related interest expense attributable to the Warrants shall in
      each case be excluded from the calculation of Consolidated Interest Expense
      and
      (b) Consolidated Interest Expense shall be calculated after giving effect to
      Hedging Agreements related to interest rates (including associated costs),
      but
      excluding unrealized gains and losses with respect to Hedging Agreements related
      to interest rates.

     

    Consolidated
      Interest Expense shall be calculated on a Pro Forma Basis to give effect to
      any
      Indebtedness incurred, assumed or permanently repaid or extinguished during
      the
      relevant Test Period in connection with the Original Acquisition, any Permitted
      Acquisitions (including, without limitation, the Foundry Acquisition) and Asset
      Sales (other than any dispositions in the ordinary course of business) as if
      such incurrence, assumption, repayment or extinguishing had been effected on
      the
      first day of such period.

     

    “Consolidated
      Net Income”
shall
      mean, for any period, the consolidated net income (or loss) of Holdings and
      its
      Subsidiaries determined on a consolidated basis in accordance with GAAP;
provided
      that
      there shall be excluded from such net income (or loss) (to the extent otherwise
      included therein), without duplication:

     

    (a) the
      net
      income (or loss) of any person (other than a Subsidiary of Holdings) in which
      any person other than Holdings and its Subsidiaries has an ownership interest,
      except to the extent that cash in an amount equal to any such income has
      actually been received by Holdings or (subject to clause (b) below) any of
      its Subsidiaries during such period;

     

    (b) the
      net
      income of any Subsidiary of Holdings during such period to the extent that
      the
      declaration or payment of dividends or similar distributions by such Subsidiary
      of that income is not permitted by operation of the terms of its Organizational
      Documents or any agreement, instrument or Requirement of Law applicable to
      that
      Subsidiary during such period, except that Holdings’ equity in the net loss of
      any such Subsidiary for such period shall be included in determining
      Consolidated Net Income;

     

    (c) any
      gain
      (or loss), together with any related provisions for taxes on any such gain
      (or
      the tax effect of any such loss), realized during such period by Holdings or
      any
      of its Subsidiaries upon any Asset Sale (other than any dispositions in the
      ordinary course of business) by Holdings or any of its
      Subsidiaries;

     

    (d) gains
      and
      losses due solely to fluctuations in currency values and the related tax effects
      determined in accordance with GAAP for such period;

     

    (e) earnings
      resulting from any reappraisal, revaluation or write-up of assets;

     

    (f) unrealized
      gains and losses with respect to Hedging Obligations for such period;
      and

     

    (g) any
      extraordinary gain (or extraordinary loss), together with any related provision
      for taxes on any such gain (or the tax effect of any such loss), recorded or
      recognized by Holdings or any of its Subsidiaries during such
      period.

     

    
      
        
        

      

      
        -11-

        
          

        

      

      
        
        

      

    

     

    Consolidated
      Net Income shall be reduced (to the extent not already reduced thereby) by
      the
      amount of any payments to or on behalf of Holdings made by any Subsidiary of
      Holdings pursuant to Section 7.08(c).

     

    “Consolidated
      Tax Expense”
shall
      mean, for any period, the tax expense of Holdings and its Subsidiaries, for
      such
      period, determined on a consolidated basis in accordance with GAAP.

     

    “Contested
      Collateral Lien Conditions”
shall
      mean, with respect to any Permitted Lien of the type described in
      clauses (a), (b), (e) and (f) of Section 7.02,
      the
      following conditions:

     

    (a) Holdings
      or a Subsidiary shall cause any proceeding instituted contesting such Lien
      to
      stay the sale or forfeiture of any portion of the Collateral on account of
      such
      Lien;

     

    (b) at
      the
      option and at the request of the Required Holders, to the extent such Lien
      is in
      an amount in excess of $50,000, the appropriate Issuer shall maintain cash
      reserves in an amount sufficient to pay and discharge such Lien and the Required
      Holders’ reasonable estimate of all interest and penalties related thereto;
      and

     

    (c) such
      Lien
      shall in all respects be subject and subordinate in priority to the Lien and
      security interest created and evidenced by the Security Documents, except if
      and
      to the extent that the Requirement of Law creating, permitting or authorizing
      such Lien provides that such Lien is or must be superior to the Lien and
      security interest created and evidenced by the Security Documents.

     

    “Contingent
      Obligation”
shall
      mean, as to any person, any obligation, agreement, understanding or arrangement
      of such person guaranteeing or intended to guarantee any Indebtedness, leases,
      dividends or other obligations (“primary
      obligations”)
      of any
      other person (the “primary
      obligor”)
      in any
      manner, whether directly or indirectly, including any obligation of such person,
      whether or not contingent, (a) to purchase any such primary obligation or
      any property constituting direct or indirect security therefor; (b) to
      advance or supply funds (i) for the purchase or payment of any such primary
      obligation or (ii) to maintain working capital or equity capital of the
      primary obligor or otherwise to maintain the net worth or solvency of the
      primary obligor; (c) to purchase property, securities or services primarily
      for the purpose of assuring the owner of any such primary obligation of the
      ability of the primary obligor to make payment of such primary obligation;
      (d) with respect to bankers’ acceptances, letters of credit and similar
      credit arrangements, until a reimbursement obligation arises (which
      reimbursement obligation shall constitute Indebtedness); or (e) otherwise
      to assure or hold harmless the holder of such primary obligation against loss
      in
      respect thereof; provided,
      however,
      that
      the term “Contingent Obligation” shall not include endorsements of instruments
      for deposit or collection in the ordinary course of business or any product
      warranties. The amount of any Contingent Obligation shall be deemed to be an
      amount equal to the stated or determinable amount of the primary obligation
      in
      respect of which such Contingent Obligation is made (or, if less, the maximum
      amount of such primary obligation for which such person may be liable, whether
      singly or jointly, pursuant to the terms of the instrument evidencing such
      Contingent Obligation) or, if not stated or determinable, the maximum reasonably
      anticipated liability in respect thereof (assuming such person is required
      to
      perform thereunder) as determined by such person in good faith.

     

    “Control”
shall
      mean the possession, directly or indirectly, of the power to direct or cause
      the
      direction of the management or policies of a person, whether through the
      ownership of voting securities, by contract or otherwise, and the terms
“Controlling”
and
      “Controlled”
shall
      have meanings correlative thereto.

     

    
      
        
        

      

      
        -12-

        
          

        

      

      
        
        

      

    

     

    “Control
      Agreement”
shall
      have the meaning assigned to such term in the Security Agreement.

     

    “Controlled
      Investment Affiliate”
means,
      as to any person, any other person which directly or indirectly is in Control
      of, is Controlled by, or is under common Control with, such person and is
      organized by such person (or any person Controlling such person) primarily
      for
      making equity or debt investments in Holdings or other portfolio
      companies.

     

    “Conversion
      Share”
shall
      mean a share of the Common Stock issuable upon conversion of the Purchased
      Preferred Stock.

     

    “Cost
      Portion”
shall
      have the meaning assigned to such term in the definition of “Qualified
      Cash”.

     

    “Cure
      Amount” shall
      have the meaning assigned to such term in Section
      9.04(a).
      

     

    “Cure
      Right”
shall
      have the meaning assigned to such term in Section
      9.04(a).

     

    “Debt
      Issuance”
shall
      mean the incurrence by Holdings or any of its Subsidiaries of any Indebtedness
      after the First Closing Date (other than as permitted by Section 7.01).

     

    “Default”
shall
      mean any event, occurrence or condition which is, or upon notice, lapse of
      time
      or both would constitute, an Event of Default.

     

    “Disqualified
      Capital Stock”
shall
      mean any Equity Interest which, by its terms (or by the terms of any security
      into which it is convertible or for which it is exchangeable), or upon the
      happening of any event, (a) matures (excluding any maturity as the result
      of an optional redemption by the issuer thereof) or is mandatorily redeemable,
      pursuant to a sinking fund obligation or otherwise, or is redeemable at the
      option of the holder thereof, in whole or in part, on or prior to the first
      anniversary of the Stated Maturity Date of the Notes, (b) is convertible
      into or exchangeable (unless at the sole option of the issuer thereof) for
      (i) debt securities or (ii) any Equity Interests referred to in (a)
      above, in each case at any time on or prior to the first anniversary of the
      Stated Maturity Date of the Notes, or (c) contains any repurchase
      obligation which may come into effect prior to payment in full of all
      Obligations; provided,
      however,
      that
      any Equity Interests that would not constitute Disqualified Capital Stock but
      for provisions thereof giving holders thereof (or the holders of any security
      into or for which such Equity Interests are convertible, exchangeable or
      exercisable) the right to require the issuer thereof to redeem such Equity
      Interests upon the occurrence of a change in control or an asset sale occurring
      prior to the first anniversary of the Stated Maturity Date of the Notes shall
      not constitute Disqualified Capital Stock if such Equity Interests provide
      that
      the issuer thereof will not redeem any such Equity Interests pursuant to such
      provisions prior to the repayment in full of the Obligations. 

     

    “Dividend”
with
      respect to any person shall mean that such person has declared or paid a
      dividend or returned any equity capital to the holders of its Equity Interests
      or authorized or made any other distribution, payment or delivery of property
      (other than Qualified Capital Stock of such person) or cash to the holders
      of
      its Equity Interests as such, or redeemed, retired, purchased or otherwise
      acquired, directly or indirectly, for consideration any of its Equity Interests
      outstanding (or any options or warrants issued by such person with respect
      to
      its Equity Interests), or set aside any funds for any of the foregoing purposes,
      or shall have permitted any of its Subsidiaries to purchase or otherwise acquire
      for consideration any of the Equity Interests of such person outstanding (or
      any
      options or warrants issued by such person with respect to its Equity Interests).
      Without limiting the foregoing, “Dividends” with respect to any person shall
      also include all payments made or required to be made by such person with
      respect to any stock appreciation rights, plans, equity incentive or achievement
      plans or any similar plans or setting aside of any funds for the foregoing
      purposes.

     

    
      
        
        

      

      
        -13-

        
          

        

      

      
        
        

      

    

     

    “dollars”
or
      “$”
shall
      mean lawful money of the United States.

     

    “Environment”
shall
      mean ambient air, indoor air, surface water and groundwater (including potable
      water, navigable water and wetlands), the land surface or subsurface strata,
      natural resources, the workplace or as otherwise defined in any Environmental
      Law.

     

    “Environmental
      Claim”
shall
      mean any claim, notice, demand, order, action, suit, proceeding or other
      communication alleging liability for or obligation with respect to any
      investigation, remediation, removal, cleanup, response, corrective action,
      damages to natural resources, personal injury, property damage, fines, penalties
      or other costs resulting from, related to or arising out of (i) the
      presence, Release or threatened Release in or into the Environment of Hazardous
      Material at any location or (ii) any violation or alleged violation of any
      Environmental Law, and shall include any claim seeking damages, contribution,
      indemnification, cost recovery, compensation or injunctive relief resulting
      from, related to or arising out of the presence, Release or threatened Release
      of Hazardous Material or alleged injury or threat of injury to health, safety
      or
      the Environment.

     

    “Environmental
      Law”
shall
      mean any and all present and future treaties, laws, statutes, ordinances,
      regulations, rules, decrees, orders, judgments, consent orders, consent decrees,
      code or other binding requirements, and the common law, relating to protection
      of public health or the Environment, the Release or threatened Release of
      Hazardous Material, natural resources or natural resource damages, or
      occupational safety or health, and any and all Environmental
      Permits.

     

    “Environmental
      Permit”
shall
      mean any permit, license, approval, registration, notification, exemption,
      consent or other authorization required by or from a Governmental Authority
      under Environmental Law.

     

    “Equipment”
shall
      have the meaning assigned to such term in the Security Agreement.

     

    “Equity
      Interest”
shall
      mean, with respect to any person, any and all shares, interests, participations
      or other equivalents, including membership interests (however designated,
      whether voting or nonvoting), of equity of such person, including, if such
      person is a partnership, partnership interests (whether general or limited)
      and
      any other interest or participation that confers on a person the right to
      receive a share of the profits and losses of, or distributions of property
      of,
      such partnership, whether outstanding on the First Closing Date or issued after
      the First Closing Date, but excluding debt securities convertible or
      exchangeable into such equity.

     

    “Equity
      Investors”
shall
      mean Falcon, the Investors, their Controlled Investment Affiliates and Related
      Parties (other than Holdings and its Subsidiaries) and one or more investors
      reasonably satisfactory to the Purchasers.

     

    “ERISA”
shall
      mean the Employee Retirement Income Security Act of 1974, as the same may be
      amended from time to time.

     

    
      
        
        

      

      
        -14-

        
          

        

      

      
        
        

      

    

     

    “ERISA
      Affiliate”
shall
      mean, with respect to any person, any trade or business (whether or not
      incorporated) that, together with such person, is treated as a single employer
      under Section 414 of the Code.

     

    “ERISA
      Event”
shall
      mean (a) any “reportable event,” as defined in Section 4043 of ERISA
      or the regulations issued thereunder, with respect to a Plan (other than an
      event for which the 30-day notice period is waived by regulation); (b) the
      existence with respect to any Plan of an “accumulated funding deficiency” (as
      defined in Section 412 of the Code or Section 302 of ERISA), whether
      or not waived; (c) the failure to make by its due date a required installment
      under Section 412(m) of the Code with respect to any Plan or the failure to
      make any required contribution to a Multiemployer Plan; (d) the filing
      pursuant to Section 412(d) of the Code or Section 303(d) of ERISA of
      an application for a waiver of the minimum funding standard with respect to
      any
      Plan; (e) the incurrence by any Issuer or any of its ERISA Affiliates of
      any liability under Title IV of ERISA with respect to the termination of any
      Plan; (f) the receipt by any Issuer or any of its ERISA Affiliates from the
      PBGC or a plan administrator of any notice relating to the intention to
      terminate any Plan or Plans or to appoint a trustee to administer any Plan,
      or
      the occurrence of any event or condition which could reasonably be expected
      to
      constitute grounds under ERISA for the termination of, or the appointment of
      a
      trustee to administer, any Plan; (g) the incurrence by any Issuer or any of
      its ERISA Affiliates of any liability with respect to the withdrawal from any
      Plan or Multiemployer Plan; (h) the receipt by Holdings or any of its
      Subsidiaries or its ERISA Affiliates of any notice, concerning the imposition
      of
      Withdrawal Liability or a determination that a Multiemployer Plan is, or is
      expected to be, insolvent or in reorganization, within the meaning of Title
      IV
      of ERISA; (i) the “substantial cessation of operations” within the meaning
      of Section 4062(e) of ERISA with respect to a Plan; (j) the making of any
      amendment to any Plan which could result in the imposition of a lien or the
      posting of a bond or other security; and (k) the occurrence of a nonexempt
      prohibited transaction (within the meaning of Section 4975 of the Code or
      Section 406 of ERISA) which could reasonably be expected to result in
      liability to Holdings or any of its Subsidiaries.

     

    “Event
      of Default”
shall
      have the meaning assigned to such term in Section 9.01.

     

    “Excess
      Proceeds Offer”
shall
      have the meaning assigned to such term in Section 6.16(a).

     

    “Excess
      Proceeds Offer Payment Date”
shall
      have the meaning assigned to such term in Section 6.16(b).

     

    “Exchange
      Act”
shall
      mean the Securities Exchange Act of 1934, as amended.

     

    “Executive
      Order”
shall
      have the meaning assigned to such term in Section 3.23.

     

    “Existing
      Lien”
shall
      have the meaning assigned to such term in Section 7.02(c).

     

    “Falcon”
shall
      mean Falcon Mezzanine Partners II, LP, a Delaware limited
      partnership.

     

    “FIA”
shall
      mean Falcon Investment Advisors, LLC, a Delaware limited liability
      company.

     

    “Financial
      Officer”
of
      any
      person shall mean the chief financial officer, principal accounting officer,
      treasurer or controller of such person.

     

    
      
        
        

      

      
        -15-

        
          

        

      

      
        
        

      

    

     

    “Financing
      Documents”
shall
      mean, collectively, this Agreement, the Notes, the Security Documents, the
      Guarantees, the Management Rights Letter, the Certificate of Designations,
      the
      Stockholders Agreement, the Warrants, the Original Fee Letter, the Second
      Closing Fee Letter, and all certificates, instruments, financial and other
      statements and other documents made or delivered in connection herewith and
      therewith.

     

    “FIRREA”
shall
      mean the Financial Institutions Reform, Recovery and Enforcement Act of 1989,
      as
      amended.

     

    “First
      Closing Date”
shall
      have the meaning assigned to such term in Section
      2.03.

     

    “First
      Closing Date Perfection Certificate”
shall
      mean the Perfection Certificate dated the First Closing Date.

     

    “Foreign
      Plan”
shall
      mean any employee benefit plan, program, policy, arrangement or agreement
      maintained or contributed to by Holdings or any of its Subsidiaries with respect
      to employees employed outside the United States.

     

    “Foreign
      Subsidiary”
shall
      mean a Subsidiary that is organized under the laws of a jurisdiction other
      than
      the United States or any state thereof or the District of Columbia.

     

    “Foundry”
shall
      have the meaning assigned to such term in the recitals hereto.

     

    “Foundry
      Acquisition”
shall
      have the meaning assigned to such term in the recitals hereto.

     

    “Foundry
      Acquisition Agreement”
shall
      have the meaning assigned to such term in the recitals hereto.

     

    “Foundry
      Acquisition Documents”
shall
      mean the Foundry Acquisition Agreement and the other documents listed on
Schedule
      3.22.

     

    “Foundry
      Closing Date”
shall
      have the meaning assigned to such term in the recitals hereto.

     

    “Foundry
      Seller Note Refinancing”
shall
      mean the repayment of not less than $3,500,000 of the aggregate principal amount
      of Foundry Seller Notes outstanding with the proceeds of the Second Closing
      Purchased Securities, as particularized on Schedule
      1.01A
      attached
      hereto.

     

    “Foundry
      Seller Notes”
shall
      have the meaning assigned to such term in the recitals hereto.

     

    “Foundry
      Sellers”
shall
      have the meaning assigned to such term in the recitals hereto.

     

    “Foundry
      Transactions”
means
      the acquisition by Holdings of all of the Equity Interests of Foundry pursuant
      to the terms of the Foundry Acquisition Agreement, the subsequent contribution
      of such Equity Interests to Wyndcrest UK, and the consummation of the other
      transactions contemplated by the Foundry Acquisition Documents.

     

    
      
        
        

      

      
        -16-

        
          

        

      

      
        
        

      

    

     

    “GAAP”
shall
      mean generally accepted accounting principles in the United States applied
      on a
      consistent basis.

     

    “Governmental
      Authority”
shall
      mean the government of the United States or any other nation, or of any
      political subdivision thereof, whether state, provincial or local, and any
      agency, authority, instrumentality, regulatory body, court, central bank or
      other entity exercising executive, legislative, judicial, taxing, regulatory
      or
      administrative powers or functions of or pertaining to government (including
      any
      supra-national bodies such as the European Union or the European Central
      Bank).

     

    “Governmental
      Real Property Disclosure Requirements”
shall
      mean any Requirement of Law of any Governmental Authority requiring notification
      of the buyer, lessee, mortgagee, assignee or other transferee of any Real
      Property, facility, establishment or business, or notification, registration
      or
      filing to or with any Governmental Authority, in connection with the sale,
      lease, mortgage, assignment or other transfer (including any transfer of
      control) of any Real Property, facility, establishment or business, of the
      actual or threatened presence or Release in or into the Environment, or the
      use,
      disposal or handling of Hazardous Material on, at, under or near the Real
      Property, facility, establishment or business to be sold, leased, mortgaged,
      assigned or transferred.

     

    “Guaranteed
      Obligations”
shall
      have the meaning assigned to such term in Section
      8.01.

     

    “Guarantees”
shall
      mean the guarantees issued pursuant to Article VIII
      by the
      Guarantors.

     

    “Guarantors”
shall
      mean Holdings and the Subsidiary Guarantors.

     

    “Hazardous
      Materials”
shall
      mean the following: hazardous substances; hazardous wastes; polychlorinated
      biphenyls (“PCBs”)
      or any
      substance or compound containing PCBs; asbestos or any asbestos-containing
      materials in any form or condition; radon or any other radioactive materials
      including any source, special nuclear or by-product material; petroleum, crude
      oil or any fraction thereof; and any other pollutant or contaminant or
      chemicals, wastes, materials, compounds, constituents or substances, subject
      to
      regulation or which can give rise to liability under any Environmental
      Laws.

     

    “Hedging
      Agreement”
shall
      mean any swap, cap, collar, forward purchase or similar agreements or
      arrangements dealing with interest rates, currency exchange rates or commodity
      prices, either generally or under specific contingencies.

     

    “Hedging
      Obligations”
shall
      mean obligations under or with respect to Hedging Agreements.

     

    “Holder”
shall
      mean any Noteholder or any Warrantholder.

     

    “Holdings”
shall
      have the meaning assigned to such term in the preamble hereto.

     

    “Holdings
      Preferred Stock”
shall
      mean Holdings’ 8.0% Senior Cumulative Convertible Preferred Stock, par value
      $0.0001 per share.

     

    
      
        
        

      

      
        -17-

        
          

        

      

      
        
        

      

    

     

    “Indebtedness”
of
      any
      person shall mean, without duplication, (a) all obligations of such person
      for borrowed money or advances; (b) all obligations of such person
      evidenced by bonds, debentures, notes or similar instruments; (c) all
      obligations of such person upon which interest charges are customarily paid
      or
      accrued; (d) all obligations of such person under conditional sale or other
      title retention agreements relating to property purchased by such person;
      (e) all obligations of such person issued or assumed as the deferred
      purchase price of property or services (excluding trade accounts payable and
      accrued obligations incurred in the ordinary course of business on normal trade
      terms and not overdue by more than 90 days); (f) all Indebtedness of
      others secured by any Lien on property owned or acquired by such person, whether
      or not the obligations secured thereby have been assumed, but limited to the
      fair market value of such property; (g) all Capital Lease Obligations,
      Purchase Money Obligations and synthetic lease obligations of such person;
      (h) all Hedging Obligations to the extent required to be reflected on a
      balance sheet of such person; (i) all Attributable Indebtedness of such
      person; (j) all obligations of such person for the reimbursement of any
      obligor in respect of letters of credit, letters of guaranty, bankers’
acceptances and similar credit transactions; and (k) all Contingent
      Obligations of such person in respect of Indebtedness or obligations of others
      of the kinds referred to in clauses (a) through (j) above. The Indebtedness
      of any person shall include the Indebtedness of any other entity (including
      any
      partnership in which such person is a general partner) to the extent such person
      is liable therefor as a result of such person’s ownership interest in or other
      relationship with such entity, except (other than in the case of general partner
      liability) to the extent that terms of such Indebtedness expressly provide
      that
      such person is not liable therefor.

     

    “Indemnitee”
shall
      have the meaning assigned to such term in Section 14.03(b).

     

    “Information”
shall
      have the meaning assigned to such term in Section 14.11.

     

    “Initial
      Notes”
shall
      have the meaning assigned to such term in the recitals hereto.

     

    “Initial Purchased
      Security”
shall
      mean, individually, any of the Initial Notes, Guarantees, Purchased Preferred
      Stock or Initial Warrants, and “Initial Purchased
      Securities”
means,
      collectively, the Initial Notes, Guarantees, Purchased Preferred Stock and
      Initial Warrants.

     

    “Initial Purchase
      Price”
shall
      have the meaning assigned to such term in Section 2.02(a).

     

    “Initial
      Warrants”
shall
      have the meaning assigned to such term in the recitals hereto.

     

    “Institutional
      Investor”
shall
      mean (a) any original Purchaser of a Note and any transferee that is an
      Affiliate of any original Purchaser, (b) any holder of a Note holding more
      than 25% of the aggregate principal amount of the Notes then outstanding, and
      (c) any bank, trust company, savings and loan association or other
      financial institution, any pension plan, any investment company or investment
      fund, any insurance company, any broker or dealer, or any other similar
      financial institution or entity, regardless of legal form organized under the
      laws of the United States or a State thereof, with capital and surplus in excess
      of $50,000,000.

     

    “Insurance
      Policies”
shall
      mean the insurance policies and coverages required to be maintained by each
      Issuer which is an owner of Mortgaged Property with respect to the applicable
      Mortgaged Property pursuant to Section 6.04
      and all
      renewals and extensions thereof.

     

    “Insurance
      Requirements”
shall
      mean, collectively, all provisions of the Insurance Policies, all requirements
      of the issuer of any of the Insurance Policies and all orders, rules,
      regulations and any other requirements of the National Board of Fire
      Underwriters (or any other body exercising similar functions) binding upon
      each
      Issuer which is an owner of Mortgaged Property and applicable to the Mortgaged
      Property or any use or condition thereof.

     

    
      
        
        

      

      
        -18-

        
          

        

      

      
        
        

      

    

     

    “Intellectual
      Property”
shall
      have the meaning assigned to such term in Section 3.06(a).

     

    “Intercompany
      Note”
shall
      mean a promissory note substantially in the form of Exhibit K.

     

    “Interest
      Payment Date”
shall
      have the meaning assigned to such term in Exhibits A-1
      and
A-2
      hereto.

     

    “Investments”
shall
      have the meaning assigned to such term in Section 7.04.

     

    “Investors”
shall
      have the meaning assigned to such term in the Stockholders Agreement (as in
      effect on the Second Closing Date), except that solely for purposes of the
      definition of “IRR” and for calculating the Change in Control Premium, Investors
      shall have the meaning assigned to such term in the Stockholders Agreement
      (as
      in effect on the First Closing Date).

     

    “IRR”
shall
      mean the interest rate which, when used to calculate the net present value
      of
      all Cash Inflows and all Cash Outflows (each as defined below) realized with
      respect to the Investors’ Investments in Holdings upon a Change in Control,
      causes such net amount to equal zero. “Cash
      Inflows”
as
      used
      herein shall mean the proceeds (net of underwriting discounts and commissions,
      placement agent, finder and similar fees and other expenses incurred by the
      Investors in connection with such Change in Control) to the Investors of any
      disposition of their Investments in Holdings (in whole or in part), and
      dividends, returns of capital and other distributions with respect to their
      Investments in Holdings, whether received directly or indirectly by the
      Investors. “Cash
      Outflows”
as
      used
      herein include the sum of all cash payments made to Holdings by the Investors
      and Investments by the Investors in Holdings.

     

    Cash
      Inflows and Cash Outflows shall be calculated with respect to Investments in
      Holdings only to the extent actually realized or deemed realized in a Change
      in
      Control.

     

    “Issuers” shall
      mean the Company and the Guarantors.

     

    “Joinder
      Agreement”
shall
      mean a joinder agreement substantially in the form of Exhibit D.

     

    “Landlord
      Access Agreement”
shall
      mean a Landlord Access Agreement, substantially in the form of Exhibit F,
      or such
      other form as may reasonably be acceptable to the Required Holders.

     

    “Leases”
shall
      mean any and all leases, subleases, tenancies, options, concession agreements,
      rental agreements, occupancy agreements, franchise agreements, access agreements
      and any other agreements (including all amendments, extensions, replacements,
      renewals, modifications and/or guarantees thereof), whether or not of record
      and
      whether now in existence or hereafter entered into, affecting the use or
      occupancy of all or any portion of any Real Property.

     

    “Legal
      Defeasance”
has
      the
      meaning assigned to such term in Section
      13.01.

     

    “Lien”
shall
      mean, with respect to any property, (a) any mortgage, deed of trust, lien,
      pledge, encumbrance, claim, charge, assignment, hypothecation, security interest
      or encumbrance of any kind or any arrangement to provide priority or preference
      or any filing of any financing statement under the UCC or any other similar
      notice of lien under any similar notice or recording statute of any Governmental
      Authority, including any easement, right-of-way or other encumbrance on title
      to
      Real Property, in each of the foregoing cases whether voluntary or imposed
      by
      law, and any agreement to give any of the foregoing; (b) the interest of a
      vendor or a lessor under any conditional sale agreement, capital lease or title
      retention agreement (or any financing lease having substantially the same
      economic effect as any of the foregoing) relating to such property; and
      (c) in the case of securities, any purchase option, call or similar right
      of a third party with respect to such securities.

     

    
      
        
        

      

      
        -19-

        
          

        

      

      
        
        

      

    

     

    “Management
      Rights Letter”
shall
      mean the Management Rights Letter among the Company, Holdings and Falcon
      substantially in the form of Exhibit M
      hereto.

     

    “Margin
      Stock”
shall
      have the meaning assigned to such term in Regulation U.

     

    “Material
      Adverse Effect”
shall
      mean (a) a material adverse effect on the business, property, results of
      operations, prospects or condition, financial or otherwise, or material
      agreements of Holdings and its Subsidiaries, taken as a whole; (b) material
      impairment of the ability of the Issuers to fully and timely perform any of
      their obligations under any Financing Document; (c) material impairment of
      the rights of or benefits or remedies available to the Purchasers or any Holder
      under any Financing Document, taken as a whole; or (d) a material adverse
      effect on the Collateral or the Liens in favor of the Agent (for its benefit
      and
      for the benefit of the other Secured Parties) on the Collateral or the priority
      of such Liens.

     

    “Material
      Indebtedness”
shall
      mean any Indebtedness (other than the Notes) or Hedging Obligations of Holdings
      or any Subsidiaries in an aggregate outstanding principal amount exceeding
      $500,000. For purposes of determining Material Indebtedness, the “principal
      amount” in respect of any Hedging Obligations of any Issuer at any time shall be
      the maximum aggregate amount (giving effect to any netting agreements) that
      such
      Issuer would be required to pay if the related Hedging Agreement were terminated
      at such time.

     

    “Maturity,”
when
      used with respect to any Note, shall mean the date on which the principal of
      such Note or portion thereof becomes due and payable as therein or herein
      provided, whether at the Stated Maturity Date or by declaration of acceleration,
      call for redemption or otherwise (including in connection with any offer to
      purchase that this Agreement requires the Company to make).

     

    “Minimum
      Qualified Cash Requirement”
shall
      have the meaning assigned to such term in Section
      7.10(a).

     

    “Mortgage”
shall
      mean an agreement, including, but not limited to, a mortgage, deed of trust
      or
      any other document, creating and evidencing a Lien on a Mortgaged Property,
      which shall be in a form reasonably satisfactory to the Agent, in each case,
      with such schedules and including such provisions as shall be necessary to
      conform such document to applicable local or foreign law or as shall be
      customary under applicable local or foreign law.

     

    “Mortgaged
      Property”
shall
      mean each Real Property, if any, which shall be subject to a Mortgage
      delivered after the Second Closing Date pursuant to Section 6.10(c).

     

    “Multiemployer
      Plan”
shall
      mean a multiemployer plan within the meaning of Section 4001(a)(3) or
      Section 3(37) of ERISA (a) to which any Issuer or any of their
      Subsidiaries or any ERISA Affiliate thereof is then making or accruing an
      obligation to make contributions; (b) to which any Issuer or any ERISA
      Affiliate thereof has within the preceding five plan years made contributions;
      or (c) with respect to which any Issuer or any of their Subsidiaries could
      incur liability.

     

    
      
        
        

      

      
        -20-

        
          

        

      

      
        
        

      

    

     

    “Net
      Cash Proceeds”
shall
      mean:

     

    (a) with
      respect to any Asset Sale (other than any issuance or sale of Equity Interests),
      the cash proceeds received by Holdings or any of its Subsidiaries (including
      cash proceeds subsequently received (as and when received by Holdings or any
      of
      its Subsidiaries) in respect of non-cash consideration initially received)
      net
      of (i) selling expenses (including reasonable brokers’ fees or commissions,
      legal, accounting and other professional and transactional fees, transfer and
      similar taxes and Holdings’ good faith estimate of income taxes paid or payable
      in connection with such sale); (ii) amounts provided as a reserve, in
      accordance with GAAP, against (x) any liabilities under any indemnification
      obligations associated with such Asset Sale or (y) any other liabilities
      retained by Holdings or any of its Subsidiaries associated with the properties
      sold in such Asset Sale (provided
      that, to
      the extent and at the time any such amounts are released from such reserve,
      such
      amounts shall constitute Net Cash Proceeds); (iii) Holdings’ good faith
      estimate of payments required to be made with respect to unassumed liabilities
      relating to the properties sold within 90 days of such Asset Sale
      (provided
      that, to
      the extent such cash proceeds are not used to make payments in respect of such
      unassumed liabilities within 90 days of such Asset Sale, such cash proceeds
      shall constitute Net Cash Proceeds); and (iv) the principal amount, premium
      or penalty, if any, interest and other amounts on any Indebtedness for borrowed
      money which is secured by a Lien on the properties sold in such Asset Sale
      (so
      long as such Lien was permitted to encumber such properties under the Financing
      Documents at the time of such sale) and which is repaid with such proceeds
      (other than any such Indebtedness assumed by the purchaser of such
      properties);

     

    (b) with
      respect to any issuance or sale of Equity Interests by Holdings or any
      Subsidiary of Holdings, the cash proceeds thereof (net of any customary fees,
      commissions, costs and other expenses incurred in connection
      therewith);

     

    (c) with
      respect to any Debt Issuance, the cash proceeds thereof, net of customary fees,
      commissions, costs and other expenses incurred in connection therewith;
      and

     

    (d) with
      respect to any Casualty Event, the cash insurance proceeds, condemnation awards
      and other compensation received in respect thereof, net of all reasonable costs
      and expenses incurred in connection with the collection of such proceeds, awards
      or other compensation in respect of such Casualty Event.

     

    “Non-Guarantor
      Subsidiary”
shall
      mean each Subsidiary that is not a Guarantor.

     

    “Noteholder”
shall
      mean a person in whose name a Note is registered on the Security
      Register.

     

    “Note”
shall
      mean, individually, any of the Initial Notes or the Additional Notes, and
“Notes”
means,
      collectively, the Initial Notes and the Additional Notes.

     

    “Obligations”
shall
      mean (a) obligations of the Company and the other Issuers from time to time
      arising under or in respect of the due and punctual payment of (i) the
      principal of and premium, if any, and interest (including interest accruing
      during the pendency of any bankruptcy, insolvency, receivership or other similar
      proceeding, regardless of whether allowed or allowable in such proceeding)
      on
      the Notes and the Guarantees, when and as due, whether at maturity, by
      acceleration, upon one or more dates set for prepayment or otherwise, and
      (ii) all other monetary obligations, including fees, costs, expenses and
      indemnities, whether primary, secondary, direct, contingent, fixed or otherwise
      (including monetary obligations incurred during the pendency of any bankruptcy,
      insolvency, receivership or other similar proceeding, regardless of whether
      allowed or allowable in such proceeding), of the Company and the other Issuers
      under this Agreement and the other Financing Documents, and (b) the due and
      punctual performance of all covenants, agreements, obligations and liabilities
      of the Company and the other Issuers under or pursuant to this Agreement and
      the
      other Financing Documents.

     

    
      
        
        

      

      
        -21-

        
          

        

      

      
        
        

      

    

     

    “OFAC”
shall
      have the meaning assigned to such term in Section 3.23.

     

    “Offer
      Amount”
shall
      have the meaning assigned to such term in Section
      6.16(b).

     

    “Offering”
shall
      have the meaning assigned to such term in Section
      6.19(b).

     

    “Offering
      Documents”
shall
      have the meaning assigned to such term in Section
      6.19(b).

     

    “Officers’
      Certificate”
shall
      mean a certificate executed by the chairman of the Board of Directors (if an
      officer), the chief executive officer or the president and one of the Financial
      Officers, each in his or her official (and not individual)
      capacity.

     

    “Optional
      Redemption Premium”
      shall
      have the meaning assigned to such term in Section
      9.01.

     

    “Organizational
      Documents”
shall
      mean, with respect to any person, (i) in the case of any corporation, the
      certificate of incorporation and by-laws (or similar documents) of such person,
      (ii) in the case of any limited liability company, the certificate of
      formation and operating agreement (or similar documents) of such person,
      (iii) in the case of any limited partnership, the certificate of formation
      and limited partnership agreement (or similar documents) of such person,
      (iv) in the case of any general partnership, the partnership agreement (or
      similar document) of such person and (v) in any other case, the functional
      equivalent of the foregoing.

     

    “Original
      Acquisition”
shall
      have the meaning assigned to such term in the recitals hereto.

     

    “Original
      Acquisition Agreement”
shall
      have the meaning assigned to such term in the recitals hereto.

     

    “Original
      Acquisition Documents”
shall
      mean the Original Acquisition Agreement and the other documents listed on
Schedule
      3.21.

     

    “Original Equity
      Financing”
shall
      have the meaning assigned to such term in the recitals hereto.

     

    “Original Equity
      Offering”
shall
      have the meaning assigned to such term in the recitals hereto.

     

    
      
        
        

      

      
        -22-

        
          

        

      

      
        
        

      

    

     

    “Original
      Fee Letter”
shall
      mean that certain Fee Letter among Holdings and FIA relating to the Initial
      Purchased Securities.

     

    “Original
      Participating Stockholders”
shall
      have the meaning assigned to such term in the recitals hereto.

     

    “Original
      Purchase Agreement”
shall
      have the meaning assigned to such term in the recitals hereto.

     

    “Original Seller
      Notes”
shall
      have the meaning assigned to such term in the recitals hereto.

     

    “Original
      Transactions”
shall
      mean, collectively, the transactions to occur pursuant to the Original
      Acquisition Documents, the Original Purchase Agreement and the other Financing
      Documents executed and delivered on the First Closing Date, including (a) the
      consummation of the Original Acquisition; (b) the execution, delivery and
      performance of the Original Purchase Agreement and such other Financing
      Documents and the issuance of the Initial Purchased Securities in connection
      therewith; (c) the repayment with the proceeds of the Initial Purchased
      Securities of the Original Seller Notes; (d) the Original Equity Offering;
      and
      (e) the payment of all fees and expenses to be paid on or prior to the
      First Closing Date and owing in connection with the foregoing.

     

    “outstanding,”
when
      used with respect to the Notes, shall mean, as of the date of determination,
      all
      Notes theretofore executed and delivered under this Agreement, except:

     

    (a) Notes
      theretofore cancelled by the Company or delivered to the Company for
      cancellation;

     

    (b) Notes
      for
      whose payment or redemption money in the necessary amount has been theretofore
      set aside by the Company with a third party in trust for the Noteholders;
provided
      that if
      such Notes are to be redeemed, notice of such redemption has been duly given
      as
      provided in this Agreement; and

     

    (c) Notes
      which have been paid pursuant to Section
      10.08
      or in
      exchange for or in lieu of which other Notes have been executed and delivered
      pursuant to this Agreement, other than any such Notes in respect of which there
      shall have been presented to the Company proof satisfactory to it that such
      Notes are held by a bona fide purchaser in whose hands such Notes are valid
      obligations of the Company;

     

    provided,
      however,
      that in
      determining whether the Noteholders of the requisite principal amount of the
      outstanding Notes have given any request, demand, authorization, direction,
      notice, consent or waiver hereunder, Notes owned by the Company or any other
      obligor upon the Notes or any Affiliate of the Company or of such other obligor
      shall be disregarded and deemed not to be outstanding. Notes so owned which
      have
      been pledged in good faith may be regarded as outstanding if the pledgee
      establishes to the reasonable satisfaction of the Required Holders the pledgee’s
      right so to act with respect to such Notes and that the pledgee is not the
      Company or any other obligor upon the Notes or any Affiliate of the Company
      or
      of such other obligor.

     

    “PBGC”
shall
      mean the Pension Benefit Guaranty Corporation referred to and defined in
      ERISA.

     

    
      
        
        

      

      
        -23-

        
          

        

      

      
        
        

      

    

     

    “Perfection
      Certificate”
shall
      mean a certificate in the form of Exhibit H-1
      or any
      other form approved by the Agent, as the same shall be supplemented from time
      to
      time by a Perfection Certificate Supplement or otherwise.

     

    “Perfection
      Certificate Supplement”
shall
      mean a certificate supplement in the form of Exhibit H-2
      or any
      other form approved by the Agent.

     

    “Permitted
      Acquisition”
shall
      mean (x) the Foundry Acquisition or (y) any transaction or series of related
      transactions for the direct or indirect (a) acquisition by the Company or
      any of its Subsidiaries of all or substantially all of the property of any
      person, or of any business or division of any person; (b) acquisition by
      the Company or any of its Subsidiaries of in excess of 50% of the Equity
      Interests of any person, and otherwise causing such person to become a
      Subsidiary of such person; or (c) merger or consolidation or any other
      combination of the Company or any of its Subsidiaries with any person, if each
      of the following conditions is met:

     

    (i)
      no
      Default then exists or would result therefrom;

     

    (ii)
      after
      giving effect to such transaction on a Pro Forma Basis, (A) Holdings shall
      be in compliance with all covenants set forth in Section 7.10
      as of
      the most recent Test Period (assuming, for purposes of Section 7.10,
      that
      such transaction, and all other Permitted Acquisitions consummated since the
      first day of the relevant Test Period for each of the financial covenants set
      forth in Section 7.10
      ending
      on or prior to the date of such transaction, had occurred on the first day
      of
      such relevant Test Period), and (B) unless expressly approved by the
      Required Holders, the person or business to be acquired shall have generated
      positive cash flow for the Test Period most recently ended prior to the date
      of
      consummation of such acquisition;

     

    (iii)
      neither
      Holdings nor any of its Subsidiaries shall, in connection with any such
      transaction, assume or remain liable with respect to any Indebtedness or other
      liability (including any material tax or ERISA liability) of the related seller
      or the business, person or properties acquired, except (A) to the extent
      permitted under Section 7.01
      and
      (B) obligations not constituting Indebtedness incurred in the ordinary
      course of business and necessary or desirable to the continued operation of
      the
      underlying properties, and any other such liabilities or obligations not
      permitted to be assumed or otherwise supported by Holdings or any of its
      Subsidiaries hereunder shall be paid in full or released as to the business,
      persons or properties being so acquired on or before the consummation of such
      acquisition;

     

    (iv)
      the
      person or business to be acquired shall be, or shall be engaged in, a business
      of the type that the Company and the Subsidiaries are permitted to be engaged
      in
      under Section 7.15
      and the
      property acquired in connection with any such transaction shall be made subject
      to the Lien of the Security Documents and shall be free and clear of any Liens,
      other than Permitted Collateral Liens;

     

    (v)
      the
      Board
      of Directors of the person to be acquired shall not have indicated publicly
      its
      opposition to the consummation of such acquisition (unless such opposition
      has
      been publicly withdrawn); 

     

    (vi)
      all
      transactions in connection therewith shall be consummated in accordance with
      all
      applicable Requirements of Law;

     

    
      
        
        

      

      
        -24-

        
          

        

      

      
        
        

      

    

     

    (vii)
      the
      Company shall have provided the Noteholders with (A) historical financial
      statements for the last fiscal year (or, if less, the number of months since
      formation) of the person or business to be acquired (to the extent available)
      and unaudited financial statements thereof for the most recent interim period
      which are available, (B) reasonably detailed projections for the succeeding
      year pertaining to the person or business to be acquired and updated projections
      for the Company after giving effect to such transaction, (C) copies of all
      material documentation pertaining to such transaction, and (D) all such
      other information and data relating to such transaction or the person or
      business to be acquired as may be reasonably requested by the Required Holders;
      and

     

    (viii)
      the
      aggregate amount of the Acquisition Consideration for any Permitted Acquisition
      shall not exceed (x) prior to a QIPO, 10% of the enterprise value of Holdings
      on
      a consolidated basis, or (y) following a QIPO, 17.5% of the enterprise value
      of
      Holdings on a consolidated basis, in each case, (I) calculated without giving
      effect to such Permitted Acquisition and (II) as determined by the Board of
      Directors of Holdings acting reasonably and in good faith.

     

    “Permitted
      Collateral Liens”
means
      (a) in the case of Collateral other than Mortgaged Property, the Liens described
      in clauses (a), (b), (c), (d), (e), (f), (g), (h), (j), (k), (l), (m) and (n)
      of
Section
      7.02
      and
      (b) in the case of Mortgaged Property, “Permitted Collateral Liens” shall
      mean the Liens described in clauses (a), (b), (d), (e), (g) and (l) of
Section
      7.02;
      provided,
      however,
      upon
      the date of delivery of each Mortgage under Section 6.10
      or
6.11,
      Permitted Collateral Liens shall mean only those Liens set forth in Schedule
      B
      to the applicable Mortgage.

     

    “Permitted
      Cure Security”
shall
      mean the Common Stock.

     

    “Permitted
      Holders”
shall
      mean (a) the Investors, (b) their Controlled Investment Affiliates,
      (c) Permitted Transferees with respect to (i) the portion of their
      ownership of Voting Stock of Holdings representing not more than that 8% of
      the
      total outstanding Voting Stock of Holdings and (ii) the portion of their
      ownership of Equity Interests of Holdings representing not more than 8% of
      the
      total economic interests of Holdings, and (d) with respect to the Persons
      described in clause (a) above, Related Parties.

     

    “Permitted
      Liens”
      shall
      have the meaning assigned to such term in Section 7.02.

     

    “Permitted
      Tax Distributions”
shall
      mean payments, dividends or distributions by (i) the Company to Holdings in
      order to pay consolidated or combined federal, state or local taxes not payable
      directly by the Company or any of its Subsidiaries which payments by the Company
      are not in excess of the tax liabilities that would have been payable by the
      Company and its Subsidiaries on a stand alone basis or (ii) Wyndcrest UK to
      Holdings in order to pay consolidated or combined federal, state or local taxes
      not payable directly by Wyndcrest UK or any of its Subsidiaries which payments
      by Wyndcrest UK are not in excess of the tax liabilities that would have been
      payable by Wyndcrest UK and its Subsidiaries on a stand alone
      basis.

     

    “Permitted
      Transferees”
shall
      mean the group consisting of (i) current or future directors, officers,
      consultants, employees, strategic partners and other management personnel of
      the
      Company and (ii) bona fide investors in Holdings who made such Investment
      without the intent of causing a change of control in the management or affairs
      of the Company.

     

    
      
        
        

      

      
        -25-

        
          

        

      

      
        
        

      

    

     

    “person”
shall
      mean any natural person, corporation, limited liability company, trust, joint
      venture, association, company, partnership, Governmental Authority or other
      entity.

     

    “Plan”
shall
      mean any employee pension benefit plan (other than a Multiemployer Plan) subject
      to the provisions of Title IV of ERISA or Section 412 of the Code or
      Section 302 of ERISA which is maintained or contributed to by Holdings or
      any of its Subsidiaries or its ERISA Affiliates or with respect to which
      Holdings or any of its Subsidiaries could incur liability (including under
      Section 4069 of ERISA).

     

    “Predecessor
      Note”
of
      any
      particular Note shall mean every previous Note evidencing all or a portion
      of
      the same debt as that evidenced by such particular Note.

     

    “Preferred
      Stock”
shall
      mean, with respect to any person, any and all preferred or preference Equity
      Interests (however designated) of such person whether now outstanding or issued
      after the Second Closing Date.

     

    “Premises”
shall
      have the meaning assigned thereto in the applicable Mortgage.

     

    “Private
      Placement Memorandum”
shall
      mean that certain Confidential Private Placement Memorandum dated as of
      April 21, 2006.

     

    “Pro
      Forma Basis”
shall
      mean on a pro forma basis in accordance with GAAP and otherwise reasonably
      satisfactory to the Required Holders.

     

    “Pro
      Rata Share”
means,
      as to a particular Noteholder, with respect to all payments, computations and
      other matters, the percentage obtained by dividing (a) the aggregate principal
      amount of the Notes held by that Noteholder by (b) the aggregate outstanding
      principal amount of all Notes held by the Noteholders.

     

    “property”
shall
      mean any right, title or interest in or to property or assets of any kind
      whatsoever, whether real, personal or mixed and whether tangible or intangible
      and including Equity Interests or other ownership interests of any person and
      whether now in existence or owned or hereafter entered into or acquired,
      including all Real Property.

     

    “Property
      Material Adverse Effect”
shall
      have the meaning assigned thereto in the applicable Mortgage.

     

    “Purchase
      Money Obligation”
shall
      mean, for any person, the obligations of such person in respect of Indebtedness
      (including Capital Lease Obligations) incurred for the purpose of financing
      all
      or any part of the purchase price of any property (including Equity Interests
      of
      any person) or the cost of installation, construction or improvement of any
      property and any refinancing thereof; provided,
      however,
      that
      (i) such Indebtedness is incurred within one year after such acquisition,
      installation, construction or improvement of such property by such person and
      (ii) the amount of such Indebtedness does not exceed 100% of the cost of such
      acquisition, installation, construction or improvement, as the case may
      be.

     

    “Purchased
      Preferred Stock”
shall
      have the meaning assigned to such term in the recitals hereto.

     

    
      
        
        

      

      
        -26-

        
          

        

      

      
        
        

      

    

     

    “Purchased
      Security”
shall
      mean, individually, any Initial Purchased Security or any Second Closing
      Purchased Security, and “Purchased
      Securities”
shall
      mean, collectively, the Initial Purchased Securities and the Second Closing
      Purchased Securities.

     

    “Purchasers”
shall
      have the meaning assigned to such term in the preamble hereto.

     

    “QIPO”
shall
      mean the first underwritten public offering by Holdings of its Common Stock
      after the Second Closing Date pursuant to a registration statement filed with
      the Commission in accordance with the Securities Act, which public offering
      shall raise gross cash proceeds to Holdings of at least
      $25,000,000.

     

    “Qualified
      Capital Stock”
of
      any
      person shall mean any Equity Interests of such person that are not Disqualified
      Capital Stock.

     

    “Qualified
      Cash”
of
      any
      person shall mean, as of any date, an amount equal to the cash and Cash
      Equivalents set forth on the consolidated balance sheet of such person
      determined in accordance with GAAP, less an amount equal to that portion of
      deferred revenue and advance billings (or similar items) set forth on such
      balance sheet as of such date which represents an amount determined in good
      faith by Holdings required to be expended to earn into revenue such deferred
      revenue and advance billings (the “Cost
      Portion”);
      provided
      that in
      no case shall the Cost Portion be less than 63% of the aggregate amount of
      such
      deferred revenue and advance billings as of such date.

     

    “Qualified
      Institutional Buyer”:
      shall
      have the meaning assigned to such term in Rule 144A promulgated under the
      Securities Act.

     

    “Real
      Property”
shall
      mean, collectively, all right, title and interest (including any leasehold,
      mineral or other estate) in and to any and all parcels of or interests in real
      property owned, leased or operated by any person, whether by lease, license
      or
      other means, together with, in each case, all easements, hereditaments and
      appurtenances relating thereto, all improvements and appurtenant fixtures and
      equipment, all general intangibles and contract rights and other property and
      rights incidental to the ownership, lease or operation thereof.

     

    “Redemption
      Date”
when
      used with respect to any Note to be redeemed, means the date fixed for such
      redemption by or pursuant to this Agreement or the Notes.

     

    “Redemption
      Price”
when
      used with respect to any Note to be redeemed, means the price at which it is
      to
      be redeemed pursuant to this Agreement or the Notes.

     

    “Reference
      Closing Price”
shall
      have the meaning assigned to such term in Exhibits A-1
      and
A-2
      hereto.

     

    “Regular
      Record Date”
has
      the
      meaning set forth in Section
      10.05.

     

    “Regulation S”
shall
      mean Regulation S under the Securities Act (or any successor provision), as
      it
      may be amended from time to time.

     

    “Regulation
      T”
shall
      mean Regulation T of the Board as from time to time in effect and all official
      rulings and interpretations thereunder or thereof.

     

    
      
        
        

      

      
        -27-

        
          

        

      

      
        
        

      

    

     

    “Regulation
      U”
shall
      mean Regulation U of the Board as from time to time in effect and all official
      rulings and interpretations thereunder or thereof.

     

    “Regulation
      X”
shall
      mean Regulation X of the Board as from time to time in effect and all official
      rulings and interpretations thereunder or thereof.

     

    “Related
      Parties”
shall
      mean, with respect to any person, such person’s Affiliates and the partners,
      directors, officers, employees, agents and advisors of such person and of such
      person’s Affiliates.

     

    “Release”
shall
      mean any spilling, leaking, seepage, pumping, pouring, emitting, emptying,
      discharging, injecting, escaping, leaching, dumping, disposing, depositing,
      dispersing, emanating or migrating of any Hazardous Material in, into, onto
      or
      through the Environment.

     

    “Required
      Holders”
shall
      mean Noteholders holding a majority of the aggregate principal amount of
      outstanding Notes.

     

    “Requirements
      of Law”
shall
      mean, collectively, any and all requirements of any Governmental Authority
      including any and all laws, judgments, orders, decrees, ordinances, rules,
      regulations, statutes or case law.

     

    “Response”
shall
      mean (a) ”response” as such term is defined in CERCLA, 42 U.S.C.
§ 9601(24), and (b) all other actions required by any Governmental
      Authority or voluntarily undertaken to (i) clean up, remove, treat, abate,
      monitor or in any other way address any Hazardous Material in the Environment;
      (ii) prevent the Release or threat of Release, or minimize the further
      Release, of any Hazardous Material; or (iii) perform studies and
      investigations in connection with, or as a precondition to, or to determine
      the
      necessity of the activities described in, clause (i) or (ii)
      above.

     

    “Responsible
      Officer”
of
      any
      person shall mean any executive officer or Financial Officer of such person
      and
      any other officer or similar official thereof with responsibility for the
      administration of the obligations of such person in respect of this
      Agreement.

     

    “Rule
      144A”
shall
      mean Rule 144A under the Securities Act (or any successor provision), as it
      may
      be amended from time to time.

     

    “S&P”
shall
      mean Standard & Poor’s Ratings Services, a division of The McGraw Hill
      Companies, Inc.

     

    “sale”
shall
      have the meaning assigned to such term in Section
      10.07.
      

     

    “Sale
      and Leaseback Transaction”
has
      the
      meaning assigned to such term in Section 7.03.

     

    “Second Closing
      Conditions”
shall
      have the meaning assigned to such term in Section
      5.02.

     

    “Second
      Closing Date”
shall
      have the meaning assigned to such term in Section
      2.04.

     

    “Second
      Closing Date Perfection
      Certificate”
shall
      mean the Perfection Certificate dated the Second Closing Date.

     

    
      
        
        

      

      
        -28-

        
          

        

      

      
        
        

      

    

     

    “Second
      Closing Fee Letter”
shall
      mean that certain Fee Letter among Holdings and FIA relating to the Second
      Closing Purchased Securities.

     

    “Second
      Closing Purchase
      Price”
shall
      have the meaning assigned to such term in Section 2.02(b).

     

    “Second
      Closing Purchased
      Security”
shall
      mean, individually, any of the Additional Notes or Additional Warrants, and
      “Second
      Closing Purchased
      Securities”
means,
      collectively, the Additional Notes and Additional Warrants.

     

    “Second
      Closing Transactions”
shall
      mean, collectively, the transactions to occur pursuant to the Financing
      Documents executed and delivered on the Second Closing Date, including
      (a) the execution, delivery and performance of such Financing Documents and
      the issuance of the Second Closing Purchased Securities in connection therewith;
      (b) the Foundry Seller Note Refinancing; and (c) the payment of all
      fees and expenses to be paid on or prior to the Second Closing Date and owing
      in
      connection with the foregoing.

     

    “Secured
      Parties”
shall
      mean, collectively, the Agent and the Noteholders.

     

    “Securities
      Act”
shall
      mean the Securities Act of 1933, as amended.

     

    “Securities
      Collateral”
shall
      have the meaning assigned to such term in the Security Agreement.

     

    “Security
      Agreement”
shall
      mean a Security Agreement substantially in the form of Exhibit I
      among
      the Company, the Guarantors party thereto and the Agent for the benefit of
      the
      Secured Parties.

     

    “Security
      Agreement Collateral”
shall
      mean all property pledged or granted as collateral pursuant to the Security
      Agreement (a) on the First Closing Date or (b) thereafter pursuant to
Section 6.10.

     

    “Security
      Documents”
shall
      mean the Security Agreement, the UK Security Documents, the Mortgages, if any,
      and each other security document or pledge agreement delivered in accordance
      with applicable local or foreign law to grant a valid, perfected security
      interest in any property as collateral for the Obligations, and all UCC or
      other
      financing statements or instruments of perfection required by this Agreement,
      the Security Agreement, the UK Security Documents, any Mortgage or any other
      such security document or pledge agreement to be filed with respect to the
      security interests in property and fixtures created pursuant to the Security
      Agreement, the UK Security Documents or any Mortgage and any other document
      or
      instrument utilized to pledge or grant or purport to pledge or grant a security
      interest or lien on any property as collateral for the Obligations.

     

    “Security
      Register”
shall
      have the meaning assigned to such term in Section
      10.06.

     

    “Significant
      Subsidiary”
shall
      mean any Subsidiary of Holdings, other than Senbazuru Productions (for so long
      as it engages in no material activities and acquires no material assets except
      as in effect on the First Closing Date), that shall at any time have assets
      with
      a fair market value in excess of $50,000 or revenue in excess of $50,000 in
      any
      twelve month period.

     

    “Sponsor”
shall
      mean Wyndcrest Holdings, LLC, a Florida limited liability company.

     

    
      
        
        

      

      
        -29-

        
          

        

      

      
        
        

      

    

     

    “Stated
      Maturity Date”
shall
      have the meaning assigned to such term in Exhibits A-1
      and
A-2
      hereto.

     

    “Sterling”
and
      “£”
mean
      the lawful currency of the United Kingdom.

     

    “Stockholders
      Agreement”
shall
      have the meaning assigned to such term in the recitals hereto.

     

    “Subordinated
      Indebtedness”
shall
      mean Indebtedness of the Company or any Guarantor that is by its terms
      subordinated in right of payment to the Obligations of the Company and such
      Guarantor, as applicable.

     

    “Subsidiary”
shall
      mean, with respect to any person (the “parent”)
      at any
      date, (i) any person the accounts of which would be consolidated with those
      of the parent in the parent’s consolidated financial statements if such
      financial statements were prepared in accordance with GAAP as of such date,
      (ii) any other corporation, limited liability company, association or other
      business entity of which securities or other ownership interests representing
      more than 50% of the voting power of all Equity Interests entitled (without
      regard to the occurrence of any contingency) to vote in the election of the
      Board of Directors thereof are, as of such date, owned, controlled or held
      by
      the parent and/or one or more Subsidiaries of the parent, (iii) any
      partnership (a) the sole general partner or the managing general partner of
      which is the parent and/or one or more Subsidiaries of the parent or
      (b) the only general partners of which are the parent and/or one or more
      Subsidiaries of the parent and (iv) any other person that is otherwise
      Controlled by the parent and/or one or more Subsidiaries of the parent. Unless
      the context requires otherwise, “Subsidiary” refers to a Subsidiary of
      Holdings.

     

    “Subsidiary
      Guarantor”
shall
      mean D2 Software, Inc., Wyndcrest UK, Foundry and each other Significant
      Subsidiary that becomes a party to this Agreement pursuant to Section
      6.10.

     

    “Supplemental Private
      Placement Memorandum”
shall
      mean, collectively, that certain Supplement No. 1 to the Confidential Private
      Placement Memorandum dated as of May 3, 2006, and that certain Supplement No.
      2
      to the Confidential Private Placement Memorandum dated as of May 29,
      2006.

     

    “Survey”
shall
      mean a survey of any Mortgaged Property (and all improvements thereon) which
      is
      (a) (i) prepared by a surveyor or engineer licensed to perform surveys in
      the jurisdiction where such Mortgaged Property is located, (ii) dated (or
      redated) not earlier than six months prior to the date of delivery thereof
      unless there shall have occurred within six months prior to such date of
      delivery any exterior construction on the site of such Mortgaged Property or
      any
      easement, right of way or other interest in the Mortgaged Property has been
      granted or become effective through operation of law or otherwise with respect
      to such Mortgaged Property which, in either case, can be depicted on a survey,
      in which events, as applicable, such survey shall be dated (or redated) after
      the completion of such construction or if such construction shall not have
      been
      completed as of such date of delivery, not earlier than 20 days prior to
      such date of delivery, or after the grant or effectiveness of any such easement,
      right of way or other interest in the Mortgaged Property, (iii) certified
      by the surveyor (in a manner reasonably acceptable to the Required Holders)
      to
      the Required Holders, the Agent and the Title Company, (iv) complying in
      all respects with the minimum detail requirements of the American Land Title
      Association as such requirements are in effect on the date of preparation of
      such survey and (v) sufficient for the Title Company to remove all standard
      survey exceptions from the title insurance policy (or commitment) relating
      to
      such Mortgaged Property and issue the endorsements of the type required under
      the definition herein of “Title Policy” or (b) otherwise acceptable to the
      Agent.

     

    
      
        
        

      

      
        -30-

        
          

        

      

      
        
        

      

    

     

     

    “Tax
      Returns”
shall
      mean all returns, statements, filings, attachments and other documents or
      certifications required to be filed in respect of Taxes.

     

    “Taxes”
shall
      mean all present or future taxes, levies, imposts, duties, deductions,
      withholdings, assessments, fees or other charges imposed by any Governmental
      Authority, including any interest, additions to tax or penalties applicable
      thereto.

     

    “Test
      Period”
shall
      mean, at any time, the four consecutive fiscal quarters of Holdings then last
      ended (in each case taken as one accounting period).

     

    “Title
      Company”
shall
      mean any title insurance company as shall be retained by Holdings and reasonably
      acceptable to the Required Holders.

     

    “Title
      Policy”
shall
      mean, with respect to each Mortgage, a policy of title insurance (or marked
      up
      title insurance commitment having the effect of a policy of title insurance)
      insuring the Lien of such Mortgage as a valid first mortgage Lien on the
      Mortgaged Property and fixtures described therein in the amount equal to not
      less than 115% of the fair market value of such Mortgaged Property and fixtures,
      which policy (or such marked-up commitment) shall (i) be issued by the
      Title Company, (ii) to the extent necessary, include such reinsurance
      arrangements (with provisions for direct access, if necessary) as shall be
      reasonably acceptable to the Noteholders, (iii) contain a “tie-in” or
“cluster” endorsement, if available under applicable law (i.e.,
      policies which insure against losses regardless of location or allocated value
      of the insured property up to a stated maximum coverage amount), (iv) have
      been supplemented by such endorsements (or where such endorsements are not
      available, opinions of special counsel, architects or other professionals
      reasonably acceptable to the Noteholders) as shall be reasonably requested
      by
      the Agent or the Noteholders (including endorsements on matters relating to
      usury, first loss, last dollar, zoning, contiguity, revolving credit, doing
      business, non-imputation, public road access, survey, variable rate,
      environmental lien, subdivision, mortgage recording tax, separate tax lot,
      and
      so-called comprehensive coverage over covenants and restrictions), and
      (v) contain no exceptions to title other than exceptions acceptable to the
      Noteholders.

     

    “Total
      Leverage Ratio”
shall
      mean, at any date of determination, the ratio of Consolidated Indebtedness
      on
      such date to Consolidated EBITDA for the Test Period then most recently
      ended.

     

    “Trading
      Day”
shall
      have the meaning assigned to such term in Exhibits
      A-1
      and
A-2
      hereto.

     

    “Transaction
      Documents”
shall
      mean, collectively, the Original Acquisition Documents, the Foundry Acquisition
      Documents and the Financing Documents

     

    “Transactions”
shall
      mean, collectively, the Original Transactions, the Foundry Transactions and
      the
      Second Closing Transactions.

     

    “Transferred
      Subsidiary Guarantor”
shall
      have the meaning assigned to such term in Section 8.09.

     

    “Trustee”
shall
      mean a nationally recognized trust company reasonably satisfactory to the
      Required Holders having a combined capital and surplus of at least $100,000,000
      as set forth in its most recent applicable published annual report of
      condition.

     

    
      
        
        

      

      
        -31-

        
          

        

      

      
        
        

      

    

     

    “UCC”
shall
      mean the Uniform Commercial Code as in effect from time to time (except as
      otherwise specified) in any applicable state or jurisdiction.

     

    “UK
      Security Documents”
shall
      mean (i) each security document or pledge agreement delivered in accordance
      with
      the law of England and Wales to grant a valid, perfected security interest
      in
      any property as collateral for the Obligations, (ii) all other financing
      statements or instruments of perfection required pursuant to each such security
      document or pledge agreement, and (iii) any other such security document or
      pledge agreement to be filed with respect to the security interests in property
      and fixtures created pursuant to any document or instrument utilized to pledge
      or grant or purport to pledge or grant a security interest or lien on any
      property of any Subsidiary of Holdings organized under the law of England and
      Wales as collateral for the Obligations, each such document, pledge or filing
      to
      be reasonably satisfactory to the Required Holders.

     

    “Unfinanced
      Capital Expenditures”
shall
      mean any Capital Expenditure not made pursuant to any Capital Lease
      Obligation.

     

    “United
      States”
shall
      mean the United States of America.

     

    “U.S.
      Government Obligations”
shall
      mean marketable direct obligations issued by, or unconditionally guaranteed
      by,
      the United States government or issued by any agency or instrumentality thereof
      and backed by the full faith and credit of the United States of America that,
      in
      each case, mature within one year from the date of acquisition thereof and
      are
      not callable or redeemable at the option of the issuer thereof.

     

    “USA
      PATRIOT Act”
      shall
      have the meaning assigned to such term in Section
      3.23.

     

    “Voting
      Stock”
shall
      mean, with respect to any person, any class or classes of Equity Interests
      pursuant to which the holders thereof have the general voting power under
      ordinary circumstances to elect at least a majority of the Board of Directors
      of
      such person.

     

    “Warrant”
shall
      mean, individually, any Initial Warrant or any Additional Warrant and
“Warrants”
means,
      collectively, the Initial Warrants and the Additional Warrants.

     

    “Warrant
      Share”
shall
      mean a share of the Common Stock issuable upon exercise of a
      Warrant.

     

    “Warrantholder”
means
      a
      person in whose name a Warrant or Warrant Share is registered.

     

    “Wholly
      Owned Subsidiary”
shall
      mean, as to any person, (a) any corporation 100% of whose capital stock
      (other than directors’ qualifying shares) is at the time owned by such person
      and/or one or more Wholly Owned Subsidiaries of such person and (b) any
      partnership, association, joint venture, limited liability company or other
      entity in which such person and/or one or more Wholly Owned Subsidiaries of
      such
      person have a 100% equity interest at such time.

     

    “Withdrawal
      Liability”
shall
      mean liability to a Multiemployer Plan as a result of a complete or partial
      withdrawal from such Multiemployer Plan, as such terms are defined in
      Part I of Subtitle E of Title IV of ERISA.

     

    “Wyndcrest
      UK”
shall
      have the meaning assigned to such term in the recitals hereto.

     

    
      
        
        

      

      
        -32-

        
          

        

      

      
        
        

      

    

     

    SECTION
      1.02 Terms
      Generally.
      The
      definitions of terms herein shall apply equally to the singular and plural
      forms
      of the terms defined. Whenever the context may require, any pronoun shall
      include the corresponding masculine, feminine and neuter forms. The words
“include,” “includes” and “including” shall be deemed to be followed by the
      phrase “without limitation.” The word “will” shall be construed to have the same
      meaning and effect as the word “shall.” Unless the context requires otherwise
      (a) any definition of or reference to any Financing Document, agreement,
      instrument or other document herein shall be construed as referring to such
      agreement, instrument or other document as from time to time amended,
      supplemented or otherwise modified (subject to any restrictions on such
      amendments, supplements or modifications set forth herein), (b) any
      reference herein to any person shall be construed to include such person’s
      successors and assigns, (c) the words “herein,” “hereof” and “hereunder,”
and words of similar import, shall be construed to refer to this Agreement
      in
      its entirety and not to any particular provision hereof, (d) all references
      herein to Articles, Sections, Exhibits and Schedules shall be construed to
      refer
      to Articles and Sections of, and Exhibits and Schedules to, this Agreement,
      (e) any reference to any law or regulation herein shall refer to such law
      or regulation as amended, modified or supplemented from time to time,
      (f) the words “asset” and “property” shall be construed to have the same
      meaning and effect and to refer to any and all tangible and intangible assets
      and properties, including cash, securities, accounts and contract rights and
      (g)
“on,” when used with respect to the Mortgaged Property or any property adjacent
      to the Mortgaged Property, means “on, in, under, above or about.”

     

    SECTION
      1.03 Accounting
      Terms; GAAP.
      Except
      as otherwise expressly provided herein, all financial statements to be delivered
      pursuant to this Agreement shall be prepared in accordance with GAAP as in
      effect from time to time and all terms of an accounting or financial nature
      shall be construed and interpreted in accordance with GAAP, as in effect on
      the
      date hereof unless otherwise agreed to by the Company and the Required
      Holders.

     

    SECTION
      1.04 Resolution
      of Drafting Ambiguities.
      Each
      Issuer acknowledges and agrees that it was represented by counsel in connection
      with the execution and delivery of the Financing Documents to which it is a
      party, that it and its counsel reviewed and participated in the preparation
      and
      negotiation hereof and thereof and that any rule of construction to the effect
      that ambiguities are to be resolved against the drafting party shall not be
      employed in the interpretation hereof or thereof.

     

    ARTICLE
      II

     

    AUTHORIZATION,
      ISSUANCE AND SALE OF SECURITIES

     

    SECTION
      2.01 Authorization
      of Issue.
      

     

    (a) On
      the
      First Closing Date, (i) the Company authorized the issue and sale of $12,500,000
      in aggregate principal amount of the Initial Notes, each in the form of
Exhibit A-1
      hereto,
      (ii) Holdings authorized the issue and sale of (x) 1,000,000 shares of Purchased
      Preferred Stock, each share of Purchased Preferred Stock issued under the
      Certificate of Designations, and (y) 7,323,077 Initial Warrants to purchase
      initially 7,323,077 shares of Common Stock, each Initial Warrant in the form
      of
Exhibit
      N-1
      hereto,
      and (iii) each Guarantor authorized the issue of its Guarantee of the Initial
      Notes, each such Guarantee in the form of Exhibit
      B
      hereto.

     

    
      
        
        

      

      
        -33-

        
          

        

      

      
        
        

      

    

     

    (b) As
      of the
      Second Closing Date, (i) the Company has authorized the issue and sale of
      $7,000,000 in aggregate principal amount of the Additional Notes, each
      Additional Note to be in the form of Exhibit
      A-2
      hereto,
      (ii) Holdings has authorized the issue and sale of 2,500,000 Additional Warrants
      to purchase initially 2,500,000 shares of Common Stock, each Additional Warrant
      to be in the form of Exhibit
      N-2
      hereto,
      and (iii) each Guarantor has authorized the issue of its Guarantee of the
      Additional Notes, each such Guarantee in the form of Exhibit
      B
      hereto.

     

    SECTION
      2.02 Purchase
      and Sale .
      

     

    (a) On
      the
      First Closing Date, the Company and Holdings, as applicable, sold to each
      Purchaser, and each Purchaser, acting severally and not jointly, purchased
      from
      the Company and Holdings, as applicable, the aggregate principal amount of
      Initial Notes, the aggregate number of shares of Purchased Preferred Stock
      and
      the aggregate number of Additional Warrants, in each case as set forth in
Schedule A-1
      opposite
      the name of such Purchaser at (i) 89.2% of the principal amount thereof in
      the
      case of the Notes, (ii) $1.00 per share of Purchased Preferred Stock and (iii)
      $0.1845 per Warrant in the case of the Warrants (the “Initial Purchase
      Price”).

     

    (b) On
      the
      basis of the representations and warranties contained herein and subject to
      the
      terms and conditions set forth herein, the Company and Holdings, as applicable,
      agree to sell to each Purchaser, and each Purchaser, acting severally and not
      jointly, agrees to purchase from the Company and Holdings, as applicable, the
      aggregate principal amount of Notes and the aggregate number of Warrants, in
      each case as set forth in Schedule A-2
      opposite
      the name of such Purchaser at (i) 93.41% of the principal amount thereof in
      the
      case of the Notes and (ii) $0.1845 per Warrant in the case of the Warrants
      (the
“Second
      Closing Purchase Price”).

     

    SECTION
      2.03 First
      Closing.
      The
      purchase and sale of, payment for and delivery of the Initial Purchased
      Securities pursuant to the Original Purchase Agreement occurred at the offices
      of Cahill Gordon & Reindel llp,
      80 Pine
      Street, New York, New York 10005-1702, at 9:00 a.m., New York City time, on
      July
      21, 2006 (the “First
      Closing Date”).
      On
      the First Closing Date, Holdings or the Company, as applicable, delivered to
      each Purchaser the Initial Purchased Securities purchased by such Purchaser
      on
      the First Closing Date against payment by such Purchaser to Holdings and the
      Company to their order of the amount of the Initial Purchase Price paid by
      such
      Purchaser therefor.

     

    SECTION
      2.04 Second
      Closing.
      The
      purchase and sale of, payment for and delivery of the Second Closing Purchased
      Securities pursuant to this Agreement shall occur at the offices of Cahill
      Gordon & Reindel llp,
      80 Pine
      Street, New York, New York 10005-1702, at 9:00 a.m., New York City time, on
      May
      16, 2007, or such other time as shall be agreed upon by the Purchasers and
      the
      Company (such date of payment and delivery being herein called the “Second Closing
      Date”).
      On
      the Second Closing Date, Holdings or the Company, as applicable, will deliver
      to
      each Purchaser the Second Closing Purchased Securities to be purchased by such
      Purchaser on the Second Closing Date against payment by such Purchaser to
      Holdings and the Company by wire transfer in immediately available funds of
      the
      applicable portion of the Second Closing Purchase Price to be paid by such
      Purchaser therefor to such bank account or accounts as Holdings and the Company
      may request in writing at least two Business Days prior to the Second Closing
      Date. 

     

    SECTION
      2.05 Waiver
      of Antidilution Rights.
      The
      Purchasers hereby waive any antidilution rights with respect to the Holdings
      Preferred Stock and the Initial Warrants pursuant to Section (e)(v)(B) of the
      Certificate of Designations and Section 4(b) of the Initial Warrants
      certificate, respectively, solely as such rights may be triggered by the sale,
      purchase and issuance of the Additional Warrants hereunder.

     

    
      
        
        

      

      
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    ARTICLE
      III

     

    REPRESENTATIONS
      AND WARRANTIES
      OF ISSUERS

     

    Each
      Issuer acting jointly and severally represents and warrants to each Purchaser
      and each Noteholder as of the date hereof that, except as qualified or otherwise
      disclosed in the Disclosure Schedule attached hereto:

     

    SECTION
      3.01 Organization;
      Powers.
      Each
      Issuer (a) is duly organized and validly existing under the laws of the
      jurisdiction of its organization, (b) has all requisite power and authority
      to carry on its business as now conducted and to own and lease its property
      and
      (c) is qualified and in good standing (to the extent such concept is
      applicable in the applicable jurisdiction) to do business in every jurisdiction
      where such qualification is required, except in such jurisdictions where the
      failure to so qualify or be in good standing, individually or in the aggregate,
      could not reasonably be expected to result in a Material Adverse Effect. There
      is no existing default under any Organizational Document of any Issuer or any
      event which, with the giving of notice or passage of time or both, would
      constitute a default by any party thereunder.

     

    SECTION
      3.02 Authorization;
      Enforceability.
      The
      Second Closing Transactions to be entered into by each Issuer and the Foundry
      Transactions entered into by certain Issuers are within such Issuer’s powers and
      have been duly authorized by all necessary action on the part of such Issuer.
      This Agreement has been duly executed and delivered by each Issuer and
      constitutes, and each other Financing Document to which any Issuer is to be
      a
      party, when executed and delivered by such Issuer, will constitute, a legal,
      valid and binding obligation of such Issuer, enforceable in accordance with
      its
      terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium
      or other laws affecting creditors’ rights generally and subject to general
      principles of equity, regardless of whether considered in a proceeding in equity
      or at law.

     

    SECTION
      3.03 No
      Conflicts.
      Except
      as set forth on Schedule 3.03,
      the
      consummation of the Second Closing Transactions and the Foundry Transactions
      by
      the Issuers (a) does not require any consent or approval of, registration
      or filing with, or any other action by, any Governmental Authority, except
      (i) such as have been obtained or made and are in full force and effect,
      (ii) filings necessary to perfect Liens created by the Financing Documents
      and (iii) consents, approvals, registrations, filings, permits or actions
      the failure to obtain or perform which could not reasonably be expected to
      result in a Material Adverse Effect, (b) will not violate the
      Organizational Documents of the Issuers, (c) will not violate any Requirement
      of
      Law, (d) will not violate or result in a default or require any consent or
      approval under any indenture, agreement or other instrument binding upon any
      Issuer or its property, or give rise to a right thereunder to require any
      payment to be made by any Issuer, except for violations, defaults or the
      creation of such rights that could not reasonably be expected to result in
      a
      Material Adverse Effect, and (e) will not result in the creation or
      imposition of any Lien on any property of the Issuers, except Liens created
      by
      the Financing Documents and Permitted Liens.

     

    
      
        
        

      

      
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    SECTION
      3.04 Financial
      Statements; Projections.

     

    (a) Historical
      Financial Statements.
      The
      Company has heretofore delivered to the Purchasers or their representatives
      the
      consolidated balance sheets and related statements of income, stockholders’
equity and cash flows of the Company (i) as of and for the fiscal years
      ended December 31, 2005, 2004, 2003 and 2002, audited by and accompanied by
      the
      unqualified opinion of PricewaterhouseCoopers LLP, independent public
      accountants, and (ii) as of and for the six-month period ended June 30,
      2006, the nine-month period ended September 30, 2006 and the three-month period
      ended March 31, 2007 and the monthly periods ended January 31, 2007 and February
      28, 2007 and for the comparable periods of the preceding fiscal year. Such
      financial statements and all financial statements delivered pursuant to
Section 6.01(a),
      (b)
      and
(c)
      have
      been or will be prepared in accordance with GAAP and present fairly and
      accurately the financial condition and results of operations and cash flows
      of
      the Company as of the dates and for the periods to which they relate, subject,
      in the case of such interim statements, to the absence of footnotes, normal
      year
      end adjustments and presentation in condensed format omitting certain line
      items
      required by GAAP. The Company has heretofore delivered to the Purchasers
      Foundry’s unaudited balance sheet as of January 31, 2007 and as of March
      31, 2007, and Foundry’s unaudited profit and loss account (including any notes
      thereon) for the period of ten (10) months ended January 31, 2007 and for the
      period of three (3) months ended March 31, 2007.

     

    (b) No
      Liabilities.
      Except
      as set forth in the financial statements referred to in Section
      3.04(a),
      there
      are no liabilities of Holdings or any of its Subsidiaries of any kind, whether
      accrued, contingent, absolute, determined, determinable or otherwise, which
      would be required to be disclosed under GAAP and are not so disclosed, and
      there
      is no existing condition, situation or set of circumstances which could
      reasonably be expected to result in such a liability, other than liabilities
      under the Financing Documents. Since December 31, 2005 there has been no event,
      change, circumstance or occurrence that, individually or in the aggregate,
      has
      had or could reasonably be expected to result in a Material Adverse
      Effect.

     

    (c) [Reserved].

     

    (d) Forecasts.
      The
      forecasts of financial performance of Holdings and its Subsidiaries furnished
      to
      the Purchasers have been prepared in good faith by Holdings and based on
      assumptions believed by Holdings to be reasonable at the time of their
      preparation, as set forth with greater particularity in Schedule
      3.04(d).

     

    SECTION
      3.05 Properties.

     

    (a) Generally.
      The
      Issuers have good title to, or valid leasehold interests in, all the property
      material to their business, free and clear of all Liens except for, in the
      case
      of Collateral, Permitted Collateral Liens and, in the case of all other material
      property, Permitted Liens and minor irregularities or deficiencies in title
      that, individually or in the aggregate, do not interfere with its ability to
      conduct its business as currently conducted or to utilize such property for
      its
      intended purpose. The property of the Issuers, taken as a whole, (i) is in
      good operating order, condition and repair (ordinary wear and tear excepted)
      and
      (ii) constitutes all the property which is required for the business and
      operations of the Issuers as presently conducted.

     

    (b) Real
      Property.
      Holdings and its Subsidiaries own no fee interest in Real Property. Schedule 8
      to the
      First Closing Date Perfection Certificate, as supplemented by the Second Closing
      Date Perfection Certificate, contains a true and complete list of each interest
      in Real Property leased, subleased or otherwise occupied or utilized by Holdings
      or any of its Subsidiaries, as lessee, sublessee, franchisee or licensee, as
      of
      the date hereof and describes the type of interest therein held by Holdings
      or
      such Subsidiary, as the case may be, and whether any Lease requires the consent
      of the landlord or tenant thereunder, or other party thereto, to the Second
      Closing Transactions.

     

    
      
        
        

      

      
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    (c) No
      Casualty Event.
      Neither
      Holdings nor any Subsidiary has received any notice of, nor has any knowledge
      of, the occurrence or pendency or contemplation of any Casualty Event affecting
      all or any portion of its property that could reasonably be expected to result
      in a Material Adverse Effect.

     

    (d) Collateral.
      Except
      as set forth in Schedule
      3.05(d),
      the
      Issuers own or have rights to use all of the Collateral and all rights with
      respect to any of the foregoing used in, necessary for or material to their
      business as currently conducted. Except as set forth in Schedule
      3.05(d),
      the use
      by the Issuers of such Collateral and all such rights with respect to the
      foregoing do not, to the knowledge of the Issuers, infringe on the rights of
      any
      person other than such infringement which could not, individually or in the
      aggregate, reasonably be expected to result in a Material Adverse Effect. Except
      as set forth in Schedule
      3.05(d),
      no
      claim has been made and remains outstanding that Holdings’ or any of its
      Subsidiaries’ use of any Collateral does or may violate the rights of any third
      party that could, individually or in the aggregate, reasonably be expected
      to
      result in a Material Adverse Effect.

     

    SECTION
      3.06 Intellectual
      Property.

     

    (a) Ownership/No
      Claims.
      Except
      as set forth in Schedule
      3.06(a),
      the
      Issuers own, or are licensed to use, all patents, patent applications,
      trademarks, trade names, service marks, copyrights, technology, trade secrets,
      proprietary information, domain names, know-how and processes necessary for
      the
      conduct of their business as currently conducted (the “Intellectual
      Property”),
      except for those the failure to own or license which, individually or in the
      aggregate, could not reasonably be expected to result in a Material Adverse
      Effect. Except as set forth in Schedule
      3.06(a),
      no
      claim has been asserted and is pending by any person challenging or questioning
      the use of any such Intellectual Property or the validity or effectiveness
      of
      any such Intellectual Property, nor does any Issuer know of any valid basis
      for
      any such claim, except for such claims that, individually or in the aggregate,
      could not reasonably be expected to result in a Material Adverse Effect. Except
      as set forth in Schedule
      3.06(a),
      the use
      of such Intellectual Property by the Issuers does not infringe the rights of
      any
      person, except for such claims and infringements that, individually or in the
      aggregate, could not reasonably be expected to result in a Material Adverse
      Effect.

     

    (b) Registrations.
      Except
      pursuant to licenses and other user agreements entered into by Holdings and
      each
      of its Subsidiaries in the ordinary course of business that are listed in
Schedule 12(a)
      or
12(b)
      to the
      First Closing Date Perfection Certificate, as supplemented by the Second Closing
      Date Perfection Certificate, on and as of the date hereof (i) each of
      Holdings and its Subsidiaries owns and possesses the right to use, and has
      done
      nothing to authorize or enable any other person to use, the copyrights, patents
      or trademarks (as such terms are defined in the Security Agreement) listed
      in
Schedule 12(a)
      or
12(b)
      to the
      First Closing Date Perfection Certificate, as supplemented by the Second Closing
      Date Perfection Certificate, and (ii) all registrations listed in
Schedule 12(a)
      or
12(b)
      to the
      First Closing Date Perfection Certificate, as supplemented by the Second Closing
      Date Perfection Certificate, are valid and in full force and
      effect.

     

    (c) No
      Violations or Proceedings.
      To each
      Issuer’s knowledge, on and as of the date hereof, there is no material violation
      by others of any right of such Issuer with respect to any copyright, patent
      or
      trademark listed in Schedule
      12(a)
      or
12(b)
      to the
      First Closing Date Perfection Certificate, as supplemented by the Second Closing
      Date Perfection Certificate, pledged by it under the name of such Issuer, except
      as may be set forth on Schedule
      3.06(c).

     

    
      
        
        

      

      
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    SECTION
      3.07 Capitalization;
      Equity Interests and Subsidiaries.

     

    (a) Capitalization.
      After
      giving effect to the Second Closing Transactions, the authorized Equity
      Interests of Holdings consist solely of 180,000,000 shares of Common Stock,
      of
      which 72,675,183 shares will be issued and outstanding and 25,000,000 shares
      of
      its Preferred Stock, of which 1,000,000 shares will be issued and outstanding.
      No shares of any class of Equity Interests of Holdings were held by Holdings
      in
      its treasury or by Holdings’ Subsidiaries. Schedule
      3.07(a)
      sets
      forth all Equity Interests and warrants and options in Holdings as of the Second
      Closing Date, together with a true and correct list of the holders of such
      Equity Interests, warrants and options, and, other than as reflected on such
      schedule, Holdings (i) has not issued any shares of any class of its Equity
      Interests and (ii) has not split, combined or reclassified any of its shares
      of
      any class of its Equity Interests. All the issued and outstanding Equity
      Interests (including all shares of Purchased Preferred Stock and all Common
      Stock to be issued upon exercise of the Warrants or conversion of the Purchased
      Preferred Stock) of Holdings have been duly authorized and are (or in the case
      of Common Stock issued upon exercise of the Warrants or conversion of the
      Purchased Preferred Stock will be) validly issued, fully paid and nonassessable
      and are (or in the case of Common Stock issued upon exercise of the Warrants,
      will be) free of preemptive rights. Holdings has duly reserved for issuance
      a
      sufficient number of shares of Common Stock for issuance upon exercise of the
      Warrants at the initial exercise rate thereof and upon conversion of the
      Purchased Preferred Stock at the initial conversion rate thereof. Except as
      set
      forth on Schedule
      3.07(a),
      there
      are no securities of Holdings or any of its Subsidiaries that are convertible
      into or exchangeable for Equity Interests of Holdings or any of its
      Subsidiaries, and no options, warrants, calls, subscriptions, convertible
      securities, or other like rights, agreements or commitments which obligate
      Holdings or any of its Subsidiaries. There are no outstanding obligations of
      Holdings or any of its Subsidiaries to repurchase, redeem or otherwise acquire
      any Equity Interests of Holdings or any of its Subsidiaries and, except as
      set
      forth on Schedule
      3.07(a),
      neither
      Holdings nor any of its Subsidiaries has any awards or options outstanding
      under
      any stock option plans or agreements or any other outstanding stock-related
      awards. Except as set forth on Schedule
      3.07(a),
      as of
      the Second Closing Date, neither Holdings nor any of its Subsidiaries has any
      obligation to issue, transfer or sell any Equity Interests of Holdings or its
      Subsidiaries, other than pursuant to the exercise of options issued by the
      Company prior to the effective date of the Original Acquisition or the
      requirements of the Financing Documents. There will be no voting trusts or
      other
      agreements or understandings to which Holdings or any of its Subsidiaries will
      be party with respect to the holding, voting or disposing of Equity Interests
      of
      Holdings or any of its Subsidiaries, other than pursuant to the Financing
      Documents. After the Second Closing Date, neither Holdings nor any of its
      Subsidiaries will have any outstanding bonds, debentures, notes or similar
      obligations or securities that entitle the holders thereof to vote with the
      stockholders of Holdings or any of its Subsidiaries on any matter or which
      are
      convertible into or exercisable for securities having such a right to
      vote.

     

    (b) Equity
      Interests.
      Schedules
      1(a)
      and
10(a)
      to the
      First Closing Date Perfection Certificate, as supplemented by the Second Closing
      Date Perfection Certificate, set forth a list of (i) all the Subsidiaries
      of Holdings and their jurisdictions of organization as of the Second Closing
      Date and (ii) the number of each class of its Equity Interests authorized,
      and the number outstanding, on the Second Closing Date and the number of shares
      covered by all outstanding options, warrants, rights of conversion or purchase
      and similar rights at the Second Closing Date. All Equity Interests of the
      Issuers are duly and validly issued and are fully paid and non-assessable,
      and,
      other than the Equity Interests of Holdings, are owned by Holdings, directly
      or
      indirectly through Wholly Owned Subsidiaries. Each Issuer is the record and
      beneficial owner of, and has good and marketable title to, the Equity Interests
      pledged by it under the Security Documents, free of any and all Liens, rights
      or
      claims of other persons, except the security interest created by the Security
      Documents, and there are no outstanding warrants, options or other rights to
      purchase, or shareholder, voting trust or similar agreements outstanding with
      respect to, or property that is convertible into, or that requires the issuance
      or sale of, any such Equity Interests.

     

    
      
        
        

      

      
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    (c) No
      Consent of Third Parties Required.
      No
      consent of any person including any other general or limited partner, any other
      member of a limited liability company, any other shareholder or any other trust
      beneficiary is necessary or reasonably desirable (from the perspective of a
      secured party) in connection with the creation, perfection or first priority
      status of the security interest of the Agent in any Equity Interests pledged
      to
      the Agent for the benefit of the Secured Parties under the Security Documents
      or
      the exercise by the Agent of the voting or other rights provided for in the
      Security Documents or the exercise of remedies in respect thereof.

     

    (d) Organizational
      Chart.
      An
      accurate organizational chart, showing the ownership structure of Holdings
      and
      each of its Subsidiaries on the Second Closing Date is set forth on Schedule
      10(a)
      to the
      First Closing Date Perfection Certificate, as supplemented by the Second Closing
      Date Perfection Certificate.

     

    (e) Nature
      of Business of Subsidiaries of Holdings.
      No
      Subsidiary of Holdings, other than the Company, D2 Software, Inc., Wyndcrest
      UK
      or Foundry, constitutes a Significant Subsidiary.

     

    SECTION
      3.08 Litigation;
      Compliance with Laws.
      Except
      as set forth on Schedule 3.08,
      there
      are no actions, suits or proceedings at law or in equity by or before any
      Governmental Authority now pending or, to the knowledge of any Issuer,
      threatened against or affecting Holdings or any of its Subsidiaries or any
      business, property or rights of Holdings or any of its Subsidiaries
      (i) that involve any Financing Document or any of the Transactions or
      (ii) as to which there is a reasonable possibility of an adverse
      determination and that, if adversely determined, could reasonably be expected,
      individually or in the aggregate, to result in a Material Adverse Effect. Except
      as set forth on Schedule
      3.08,
      and
      except for matters covered by Section 3.18,
      neither
      Holdings nor any Subsidiary or any of its property is in violation of, nor
      will
      the continued operation of its property as currently conducted violate, any
      Requirements of Law (including any zoning or building ordinance, code or
      approval or any building permits) or any restrictions of record or agreements
      affecting Holdings’ or any of its Subsidiaries’ Real Property or is in default
      with respect to any Requirement of Law, where such violation or default,
      individually or in the aggregate, could reasonably be expected to result in
      a
      Material Adverse Effect.

     

    SECTION
      3.09 Agreements.
      Neither
      Holdings nor any Subsidiary is in default in any manner under any provision
      of
      any indenture or other agreement or instrument evidencing Indebtedness, or
      any
      other agreement or instrument to which it is a party or by which it or any
      of
      its property is or may be bound, where such default could reasonably be expected
      to result in a Material Adverse Effect, and no condition exists which, with
      the
      giving of notice or the lapse of time or both, would constitute such a default.
      Schedule 3.09
      accurately and completely lists all material agreements (other than leases
      of
      Real Property set forth on Schedule
      8(a)
      or
8(b)
      to the
      First Closing Date Perfection Certificate, as supplemented by the Second Closing
      Date Perfection Certificate) to which Holdings or any of its Subsidiaries is
      a
      party which are in effect on the date hereof in connection with the operation
      of
      the business conducted thereby and Holdings has delivered to each Purchaser
      complete and correct copies of all such material agreements, including any
      amendments, supplements or modifications with respect thereto, and all such
      agreements are in full force and effect.

     

    
      
        
        

      

      
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    SECTION
      3.10 Federal
      Reserve Regulations.

     

    (a) Neither
      Holdings nor any Subsidiary is engaged principally, or as one of its important
      activities, in the business of extending credit for the purpose of buying or
      carrying Margin Stock. The pledge of the Securities Collateral pursuant to
      the
      Security Documents does not violate the regulations of the Board, including
      Regulation T, U or X.

     

    (b) No
      part
      of the proceeds from the issuance of any Second Closing Purchased Security
      will
      be used, whether directly or indirectly, and whether immediately, incidentally
      or ultimately, for any purpose that entails a violation of, or that is
      inconsistent with, the provisions of the regulations of the Board, including
      Regulation T, U or X.

     

    SECTION
      3.11 Investment
      Company Act.
      Neither
      Holdings nor any Subsidiary is an “investment company” or a company “controlled”
by an “investment company,” as defined in, or subject to regulation under, the
      Investment Company Act of 1940, as amended.

     

    SECTION
      3.12 Use
      of Proceeds.
      The
      Company will use the proceeds from the issuance of the Second Closing Purchased
      Securities as set forth on Schedule 3.12.

     

    SECTION
      3.13 Taxes.
      Each of
      Holdings and its Subsidiaries has (a) timely filed or caused to be timely
      filed all federal Tax Returns and all material state, local and foreign Tax
      Returns or materials required to have been filed by it and all such Tax Returns
      are true and correct in all material respects and (b) duly and timely paid,
      collected or remitted or caused to be duly and timely paid, collected or
      remitted all Taxes (whether or not shown on any Tax Return) due and payable,
      collectible or remittable by it and all assessments received by it, except
      Taxes
      (i) that are being contested in good faith by appropriate proceedings and
      for which Holdings or such Subsidiary has set aside on its books adequate
      reserves in accordance with GAAP and (ii) which could not, individually or
      in the aggregate, be reasonably expected to have a Material Adverse Effect.
      Each
      Issuer and its Subsidiaries has made adequate provision in accordance with
      GAAP
      for all Taxes not yet due and payable. No Issuer or any of its Subsidiaries
      is
      aware of any proposed or pending tax assessments, deficiencies or audits against
      it. Neither Holdings nor any of its Subsidiaries has ever been a party to any
      understanding or arrangement constituting a “tax shelter” within the meaning of
      Section 6111(c), Section 6111(d) or Section 6662(d)(2)(C)(iii) of the Code,
      or
      has ever “participated” in a “reportable transaction” within the meaning of
      Treasury Regulation Section 1.6011-4. No waivers of statutes of limitation
      have
      been given by or requested with respect to any Taxes of Holdings or any of
      its
      Subsidiaries for any open tax year. None of Holdings or any of its Subsidiaries
      will be required, as a result of (i) a change in accounting method to include
      any adjustment under Section 481(c) of the Code (or any similar provision of
      state, local or foreign law) in taxable income for any Tax period ending at
      or
      after the First Closing Date, or (ii) any “closing agreement” as described in
      Section 7121 of the Code (or any similar provision of state, local or foreign
      Tax law), to include any item of income in or exclude any item of deduction
      from
      any Tax period ending at or after the First Closing Date. There are no Liens
      on
      any of the assets of Holdings or any of its Subsidiaries that arose in
      connection with any failure (or alleged failure) to pay any Tax. Neither
      Holdings nor any of its Subsidiaries has ever been a member of an affiliated,
      combined, consolidated or unitary Tax group for purposes of filing any Tax
      Return containing any member other than the Company and its Subsidiaries and
      Wyndcrest UK and its Subsidiaries. No closing agreements, private letter
      rulings, technical advance memoranda or similar agreements or rulings have
      been
      entered into or issued by any taxing authority with respect to Holdings or
      any
      of its Subsidiaries, except for those that were determined favorably to the
      taxpayer, or resulted in adverse consequences immaterial to the taxpayer.
      Neither Holdings nor any of its Subsidiaries or any predecessors to any of
      such
      entities has made any consent under Section 341 of the Code with respect to
      Holdings or any such Subsidiary.

     

    
      
        
        

      

      
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    SECTION
      3.14 No
      Material Misstatements.
      No
      information, report, financial statement, certificate, exhibit or schedule
      furnished by or on behalf of Holdings or any of its Subsidiaries to any
      Purchaser in connection with the negotiation of any Financing Document or
      included therein or delivered pursuant thereto, including, without limitation,
      the Private Placement Memorandum (as supplemented by the Supplemental Private
      Placement Memorandum), taken as a whole, contained or contains any material
      misstatement of fact or omitted or omits to state any material fact necessary
      to
      make the statements therein, in the light of the circumstances under which
      they
      were or are made, not misleading, as of the date such information is dated
      or
      certified; provided
      that, to
      the extent any such information, report, financial statement, certificate,
      exhibit or schedule was based upon or constitutes a forecast or projection,
      each
      Issuer represents only that it acted in good faith and utilized reasonable
      assumptions and due care in the preparation of such information, report,
      financial statement, certificate, exhibit or schedule.

     

    SECTION
      3.15 Labor
      Matters.
      As of
      the Second Closing Date, there are no strikes, lockouts or slowdowns against
      Holdings or any of its Subsidiaries pending or, to the knowledge of any Issuer,
      threatened. Except as disclosed in Schedule
      3.15,
      the
      hours worked by and payments made to employees of Holdings or any of its
      Subsidiaries have not been in violation of the Fair Labor Standards Act of
      1938,
      as amended, or any other applicable federal, state, local or foreign law dealing
      with such matters in any manner which could reasonably be expected to result
      in
      a Material Adverse Effect. All payments due from Holdings or any of its
      Subsidiaries, or for which any claim may be made against Holdings or any of
      its
      Subsidiaries, on account of wages and employee health and welfare insurance
      and
      other benefits, have been paid or accrued as a liability on the books of
      Holdings or such Subsidiary, as appropriate, except where the failure to do
      so
      could not reasonably be expected to result in a Material Adverse Effect. The
      consummation of the Transactions will not give rise to any right of termination
      or right of renegotiation on the part of any union under any collective
      bargaining agreement to which Holdings or any of its Subsidiaries is
      bound.

     

    SECTION
      3.16 Solvency.
      Immediately after the consummation of the Second Closing Transactions to occur
      on the Second Closing Date and immediately after giving effect to the
      application of the proceeds from the issuance of Second Closing Purchased
      Securities on such date, (a) the fair value of the properties of Holdings
      (individually and on a consolidated basis with its Subsidiaries) will exceed
      its
      debts and liabilities, subordinated, contingent or otherwise; (b) the
      present fair saleable value of the property of Holdings (individually and on
      a
      consolidated basis with its Subsidiaries) will be greater than the amount that
      will be required to pay the probable liability of its existing debts and other
      liabilities, subordinated, contingent or otherwise, as such debts and other
      liabilities become absolute and matured; and (c) Holdings (individually and
      on a consolidated basis with its Subsidiaries) will not have unreasonably small
      capital with which to conduct the business in which it is engaged as such
      business is now conducted and is proposed to be conducted following the Second
      Closing Date (in each case consistent with the past practices of the
      Subsidiaries).

     

    SECTION
      3.17 Employee
      Benefit Plans.
      Holdings and each of its Subsidiaries and their ERISA Affiliates are in
      compliance in all material respects with the applicable provisions of ERISA
      and
      the Code (relating to employee benefit plans) and the regulations and published
      interpretations thereunder. No ERISA Event has occurred or is reasonably
      expected to occur that, when taken together with all other such ERISA Events,
      could reasonably be expected to result in material liability of Holdings or
      any
      of its Subsidiaries or any of their ERISA Affiliates or the imposition of a
      Lien
      on any of the property of Holdings or any of its Subsidiaries. The present
      value
      of all accumulated benefit obligations of all underfunded Plans (based on the
      assumptions used for purposes of Statement of Financial Accounting Standards
      No. 87) did not, as of the date of the most recent financial statements
      reflecting such amounts, exceed by more than $50,000 the fair market value
      of
      the property of all such underfunded Plans. Using actuarial assumptions and
      computation methods consistent with subpart I of subtitle E of Title IV of
      ERISA, the aggregate liabilities of Holdings and each of its Subsidiaries or
      their ERISA Affiliates to all Multiemployer Plans in the event of a complete
      withdrawal therefrom, as of the close of the most recent fiscal year of each
      such Multiemployer Plan, could not reasonably be expected to result in a
      Material Adverse Effect.

     

    
      
        
        

      

      
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    SECTION
      3.18 Environmental
      Matters.

     

    (a) Except
      as
      set forth in Schedule
      3.18
      and
      except as, individually or in the aggregate, could not reasonably be expected
      to
      result in a loss to the business, property, operations or prospects of Holdings
      or any of its Subsidiaries in excess of $100,000:

     

    (i) Holdings
      and each of its Subsidiaries and their businesses, operations and Real Property
      are in compliance with, and Holdings and each of its Subsidiaries have no
      liability under, any applicable Environmental Law; and under the currently
      effective business plan of Holdings and each of its Subsidiaries, no
      expenditures or operational adjustments will be required in order to comply
      with
      applicable Environmental Laws during the next five years;

     

    (ii) Holdings
      and each of its Subsidiaries have obtained all Environmental Permits required
      for the conduct of their businesses and operations, and the ownership, operation
      and use of their property, under Environmental Law, all such Environmental
      Permits are valid and in good standing and, under the currently effective
      business plan of Holdings and each of its Subsidiaries, no expenditures or
      operational adjustments will be required in order to renew or modify such
      Environmental Permits during the next five years;

     

    (iii) There
      has
      been no Release or threatened Release of Hazardous Material on, at, under or
      from any Real Property or facility presently or formerly owned, leased or
      operated by Holdings or any of its Subsidiaries or their predecessors in
      interest that could reasonably be expected to result in liability to Holdings
      or
      any of its Subsidiaries under any applicable Environmental Law;

     

    (iv) There
      is
      no Environmental Claim pending or, to the knowledge of any Issuer, threatened
      against Holdings or any of its Subsidiaries, or relating to the Real Property
      currently or formerly owned, leased or operated by Holdings or any of its
      Subsidiaries or their predecessors in interest or relating to the operations
      of
      Holdings or any of its Subsidiaries, and there are no actions, activities,
      circumstances, conditions, events or incidents that could reasonably form the
      basis of such an Environmental Claim; and

     

    (v) No
      person
      with an indemnity or contribution obligation to Holdings or any of its
      Subsidiaries relating to compliance with or liability under Environmental Law
      is
      in default with respect to such obligation.

    
       

      (b) (i)
        Neither Holdings nor any of its Subsidiaries is obligated to perform any
        action
        or otherwise incur any expense under Environmental Law pursuant to any order,
        decree, judgment or agreement by which it is bound or has assumed by contract,
        agreement or operation of law, and neither Holdings nor any of its Subsidiaries
        is conducting or financing any Response pursuant to any Environmental Law
        with
        respect to any Real Property or any other location;

    

    
      
        
        

      

      
        -42-

        
          

        

      

      
        
        

      

    

     

    (ii)
      No
      Real
      Property or facility owned, operated or leased by Holdings or any of its
      Subsidiaries and, to the knowledge of the Issuers, no Real Property or facility
      formerly owned, operated or leased by Holdings or any of its Subsidiaries or
      any
      of their predecessors in interest is (A) listed or proposed for listing on
      the National Priorities List promulgated pursuant to CERCLA or (B) listed
      on the Comprehensive Environmental Response, Compensation and Liability
      Information System promulgated pursuant to CERCLA or (C) included on any
      similar list maintained by any Governmental Authority including any such list
      relating to petroleum;

     

    (iii)
      No
      Lien
      has been recorded or, to the knowledge of any Issuer, threatened under any
      Environmental Law with respect to any Real Property or other assets of Holdings
      or any of its Subsidiaries;

     

    (iv)
      The
      execution, delivery and performance of this Agreement and the consummation
      of
      the transactions contemplated hereby will not require any notification,
      registration, filing, reporting, disclosure, investigation, remediation or
      cleanup pursuant to any Governmental Real Property Disclosure Requirements
      or
      any other applicable Environmental Law; and

     

    (v)
      Holdings
      and each of its Subsidiaries have made available to the Purchasers all material
      records and files in the possession, custody or control of, or otherwise
      reasonably available to, Holdings and each of its Subsidiaries concerning
      compliance with or liability under Environmental Law, including those concerning
      the actual or suspected existence of Hazardous Material at Real Property or
      facilities currently or formerly owned, operated, leased or used by Holdings
      or
      any of its Subsidiaries.

     

    SECTION
      3.19 Insurance.
      Schedule 3.19
      sets
      forth a true, complete and correct description of all insurance maintained
      by
      Holdings and each of its Subsidiaries as of the Second Closing Date. All
      insurance maintained by Holdings and each of its Subsidiaries is in full force
      and effect, all premiums have been duly paid, and neither Holdings nor any
      Subsidiary has received notice of violation or cancellation thereof, and there
      exists no default under any Insurance Requirement that could reasonably be
      expected to result in a Material Adverse Effect. Each of Holdings and its
      Subsidiaries has insurance in such amounts and covering such risks and
      liabilities as are customary for companies of a similar size engaged in similar
      businesses in similar locations.

     

    SECTION
      3.20 Security
      Documents.

     

    (a) Security
      Agreement.
      The
      Security Agreement is effective to create in favor of the Agent, for the benefit
      of the Secured Parties, legal, valid and enforceable Liens on, and security
      interests in, the Security Agreement Collateral and, when (i) financing
      statements and other filings in appropriate form are filed in the offices
      specified on Schedule 7
      to the
First
      Closing Date Perfection Certificate, as supplemented by the Second Closing
      Date
      Perfection Certificate,
      and
      (ii) upon the taking of possession or control by the Agent of the Security
      Agreement Collateral with respect to which a security interest may be perfected
      only by possession or control (which possession or control shall be given to
      the
      Agent to the extent possession or control by the Agent is required by the
      Security Documents), the Liens created by the Security Documents shall
      constitute fully perfected Liens on, and security interests in, all right,
      title
      and interest of the grantors in the Security Agreement Collateral (other than
      such Security Agreement Collateral in which a security interest cannot be
      perfected under the UCC as in effect at the relevant time in the relevant
      jurisdiction), in each case subject to no Liens other than Permitted Collateral
      Liens. 

     

    
      
        
        

      

      
        -43-

        
          

        

      

      
        
        

      

    

     

    (b) The
      UK
      Security Documents are effective to create in favor of the Agent, for the
      benefit of the Secured Parties, legal, valid and enforceable Liens on, and
      security interests in, all Collateral described therein, and when all applicable
      steps have been taken under the law of England and Wales or as reasonably
      requested by the Purchasers, the Liens created by the UK Security Documents
      shall constitute fully perfected Liens on, and security interests in, all right,
      title and interest of the grantors in such Collateral (other than such
      Collateral in which a security interest cannot be perfected under Applicable
      Law
      of England and Wales at the relevant time), in each case subject to no Liens
      other than Permitted Collateral Liens.

     

    (c) PTO
      Filing; Copyright Office Filing.
      The
      Liens created by the Security Agreement constitute fully perfected Liens on,
      and
      security interests in, all right, title and interest of the grantors thereunder
      in Patents (as defined in the Security Agreement) registered or applied for
      with
      the United States Patent and Trademark Office or Copyrights (as defined in
      such
      Security Agreement) registered or applied for with the United States Copyright
      Office, as the case may be, in each case subject to no Liens other than
      Permitted Collateral Liens.

     

    (d) Valid
      Liens.
      Each
      Security Document delivered pursuant to Sections 6.10
      and
6.11
      will,
      upon execution and delivery thereof, be effective to create in favor of the
      Agent, for the benefit of the Secured Parties, legal, valid and enforceable
      Liens on, and security interests in, all of the Issuers’ right, title and
      interest in and to the Collateral thereunder, and (i) when all appropriate
      filings or recordings are made in the appropriate offices as may be required
      under applicable law and (ii) upon the taking of possession or control by
      the Agent of such Collateral with respect to which a security interest may
      be
      perfected only by possession or control (which such possession or control shall
      be given to the Agent to the extent required by any Security Document), the
      Liens created by such Security Document will constitute fully perfected Liens
      on, and security interests in, all right, title and interest of the Issuers
      in
      such Collateral (other than such Collateral (except for Real Property) in which
      a security interest cannot be perfected under the UCC or other Applicable Law
      as
      in effect at the relevant time in the relevant jurisdiction), in each case
      subject to no Liens other than the applicable Permitted Collateral Liens.


     

    SECTION
      3.21 Original
      Acquisition Documents; Representations and Warranties in Original Acquisition
      Agreement.
      Schedule
      3.21
      lists
      (i) each exhibit, schedule, annex or other attachment to the Original
      Acquisition Agreement and (ii) each material agreement, certificate, instrument,
      letter or other document not referenced in clause (i) entered into, executed
      or
      delivered in connection with the Original Acquisition. The Purchasers have
      been
      furnished true and complete copies of each Original Acquisition Document to
      the
      extent executed and delivered on or prior to the First Closing Date. All
      representations and warranties of each Issuer or non-stockholder Affiliate
      thereof set forth in the Original Acquisition Agreement were true and correct
      in
      all material respects as of the time such representations and warranties were
      made. All conditions precedent to the Original Acquisition Documents had been
      fulfilled prior to the consummation of the Original Acquisition and not waived.
      The Original Acquisition Documents have not been amended or otherwise modified
      from the executed copies and there has been no breach of any material term
      or
      condition of the Original Acquisition Documents.

    
      
         

        SECTION
          3.22 Foundry
          Acquisition Documents; Representations and Warranties in Foundry Acquisition
          Agreement.
          Schedule
          3.22
          lists
          (i) each exhibit, schedule, annex or other attachment to the Foundry Acquisition
          Agreement and (ii) each material agreement, certificate, instrument, letter
          or
          other document not referenced in clause (i) entered into, executed or delivered
          in connection with the Foundry Acquisition. The Purchasers have been furnished
          true and complete copies of each Foundry Acquisition Document to the extent
          executed and delivered on or prior to the Second Closing Date. All
          representations and warranties of each Issuer or non-stockholder Affiliate
          thereof set forth in the Foundry Acquisition Agreement were true and correct
          in
          all material respects as of the time such representations and warranties
          were
          made. All conditions precedent to the Foundry Acquisition Documents had
          been
          fulfilled prior to the consummation of the Foundry Acquisition and not
          waived.
          The Foundry Acquisition Documents have not been amended or otherwise modified
          from the executed copies and there has been no breach of any material term
          or
          condition of the Foundry Acquisition Documents.

      

      
        
          
          

        

        
          -44-

          
            

          

        

        
          
          

        

      

    

     

    SECTION
      3.23 Anti-Terrorism
      Law.

     

    (a) Neither
      Holdings nor any of its Subsidiaries nor, to the knowledge of the Issuers,
      any
      of its Affiliates is in violation of any Requirement of Law relating to
      terrorism or money laundering (“Anti-Terrorism
      Laws”),
      including Executive Order No. 13224 on Terrorist Financing, effective
      September 24, 2001 (the “Executive
      Order”),
      and
      the Uniting and Strengthening America by Providing Appropriate Tools Required
      to
      Intercept and Obstruct Terrorism Act of 2001, Public Law 107-56 (the
“USA
      PATRIOT Act”).

     

    (b) Neither
      Holdings nor any of its Subsidiaries nor, to the knowledge of the Issuers,
      any
      Affiliate or broker or other agent of Holdings or any of its Subsidiaries acting
      or benefiting in any capacity in connection with the issuance of the Second
      Closing Purchased Securities is any of the following:

     

    (i) a
      person
      that is listed in the annex to, or is otherwise subject to the provisions of,
      the Executive Order;

     

    (ii) a
      person
      owned or controlled by, or acting for or on behalf of, any person that is listed
      in the annex to, or is otherwise subject to the provisions of, the Executive
      Order;

     

    (iii) a
      person
      with which any Purchaser is prohibited from dealing or otherwise engaging in
      any
      transaction by any Anti-Terrorism Law;

     

    (iv) a
      person
      that commits, threatens or conspires to commit or supports “terrorism” as
      defined in the Executive Order; or

     

    (v) a
      person
      that is named as a “specially designated national and blocked person” on the
      most current list published by the U.S. Treasury Department Office of Foreign
      Assets Control (“OFAC”)
      at its
      official website or any replacement website or other replacement official
      publication of such list.

     

    (c) Neither
      Holdings nor any of its Subsidiaries nor, to the knowledge of the Issuers,
      any
      broker or other agent of Holdings or any of its Subsidiaries acting in any
      capacity in connection with the issuance and sale of the Second Closing
      Purchased Securities (i) conducts any business or engages in making or
      receiving any contribution of funds, goods or services to or for the benefit
      of
      any person described in paragraph (b) above, (ii) deals in, or
      otherwise engages in any transaction relating to, any property or interests
      in
      property blocked pursuant to the Executive Order, or (iii) engages in or
      conspires to engage in any transaction that evades or avoids, or has the purpose
      of evading or avoiding, or attempts to violate, any of the prohibitions set
      forth in any Anti-Terrorism Law.

    
       

      SECTION
        3.24 Eligibility
        for Resale Under Rule 144A.
        The
        Purchased Securities are eligible for resale pursuant to Rule 144A and are
        not
        of the same class as securities listed on a national securities exchange
        registered under Section 6 of the Exchange Act or quoted on a U.S. automated
        interdealer quotation system.

    

    
      
        
        

      

      
        -45-

        
          

        

      

      
        
        

      

    

     

    SECTION
      3.25 Private
      Offering; No Integration or General Solicitations.

     

    (a) It
      is not
      necessary in connection with the offer, sale and delivery of the Second Closing
      Purchased Securities to the Purchasers in the manner contemplated by this
      Agreement to register the offer and sale of the Second Closing Purchased
      Securities under the Securities Act.

     

    (b) Neither
      Holdings nor any of its Subsidiaries has, directly or indirectly, offered,
      sold
      or solicited any offer to buy and neither Holdings nor any of its Subsidiaries
      will, directly or indirectly, offer, sell or solicit any offer to buy, any
      security of a type or in a manner which would be integrated with the sale of
      the
      Second Closing Purchased Securities and require the offer and sale of any Second
      Closing Purchased Securities to be registered under the Securities Act. None
      of
      Holdings, its Subsidiaries, their respective Affiliates or any person acting
      on
      its or any of their behalf (other than the Purchasers, as to whom the Issuers
      make no representation or warranty) has engaged or will engage in any form
      of
      general solicitation or general advertising (within the meaning of Rule 502(c)
      under the Securities Act) in connection with the offering of the Second Closing
      Purchased Securities. 

     

    ARTICLE
      IV

     

    REPRESENTATIONS
      AND WARRANTIES OF PURCHASERS

     

    Each
      Purchaser acting jointly and severally represents and warrants to each Issuer
      as
      of the date hereof that:

     

    SECTION
      4.01 Authorization;
      Enforceability.
      This
      Agreement and each other Financing Document to which such Purchaser is to be
      a
      party has been duly authorized and this Agreement has been duly executed and
      delivered by such Purchaser and constitutes, and each other Financing Document
      to which such Purchaser is to be a party, when executed and delivered by such
      Purchaser, will constitute, a legal, valid and binding obligation of such
      Purchaser, enforceable in accordance with its terms, subject to applicable
      bankruptcy, insolvency, reorganization, moratorium or other laws affecting
      creditors’ rights generally and subject to general principles of equity,
      regardless of whether considered in a proceeding in equity or at
      law.

     

    SECTION
      4.02 Investment
      Purpose.
      Such
      Purchaser is acquiring the Additional Notes and the other Second Closing
      Purchased Securities for its own account and not with a view toward, or for
      resale in connection with, the sale or distribution thereof within the meaning
      of the Securities Act that would be in violation of the securities laws of
      the
      United States or any state thereof, but subject, nevertheless, to the
      disposition of its property being at all times within its control.

    
       

      SECTION
        4.03 Accredited
        Investor Status.
        Such
        Purchaser is an Accredited Investor.

       

      SECTION
        4.04 Reliance
        on Exemptions.
        Such
        Purchaser understands that the Additional Notes are being offered and issued
        in
        reliance on specific exemptions from the registration requirements of the
        United
        States federal and state securities laws and each of the Issuers is relying
        in
        part upon the truth and accuracy of, and such Purchaser’s compliance with, the
        representations, warranties, agreements, acknowledgments and understandings
        of
        such Purchaser set forth herein in order to determine the availability of
        such
        exemptions and the eligibility of such Purchaser to acquire the Additional
        Notes.

    

    
      
        
        

      

      
        -46-

        
          

        

      

      
        
        

      

    

     

    SECTION
      4.05 No
      Conflict.
      The
      consummation of the Transactions by such Purchaser (a) does not require any
      consent or approval of, registration or filing with, or any other action by,
      any
      Governmental Authority applicable to such Purchaser, except such as have been
      obtained or made and are in full force and effect, (b) will not violate the
      Organizational Documents of such Purchaser, (c) will not violate any Requirement
      of Law applicable to such Purchaser and (d) will not result in a default or
      require any consent or approval under any indenture, agreement or other
      instrument binding upon such Purchaser or its property, or give rise to a right
      thereunder to require any payment to be made by such Purchaser.

     

    SECTION
      4.06 Anti-Terrorism.

     

    (a) Neither
      such Purchaser nor, to the knowledge of such Purchaser, any of its Affiliates
      is
      in violation of any Anti-Terrorism Laws, the Executive Order or the USA PATRIOT
      Act.

     

    (b) Neither
      such Purchaser nor, to the knowledge of such Purchaser, any Affiliate or broker
      or other agent of such Purchaser acting or benefiting in any capacity in
      connection with the issuance of the Second Closing Purchased Securities is
      any
      of the following:

     

    (i) a
      person
      that is listed in the annex to, or is otherwise subject to the provisions of,
      the Executive Order;

     

    (ii) a
      person
      owned or controlled by, or acting for or on behalf of, any person that is listed
      in the annex to, or is otherwise subject to the provisions of, the Executive
      Order;

     

    (iii) a
      person
      that commits, threatens or conspires to commit or supports “terrorism” as
      defined in the Executive Order;

     

    (iv) a
      person
      that is named as a “specially designated national and blocked person” on the
      most current list of published by OFAC at its official website or any
      replacement website or other replacement official publication of such
      list.

     

    (c) Neither
      such Purchaser nor any of its Subsidiaries nor, to the knowledge of such
      Purchaser, any broker or other agent of such Purchaser acting in any capacity
      in
      connection with the issuance and sale of the Second Closing Purchased Securities
      (i) conducts any business or engages in making or receiving any
      contribution of funds, goods or services to or for the benefit of any person
      described in paragraph (b) above, (ii) deals in, or otherwise engages
      in any transaction relating to, any property or interests in property blocked
      pursuant to the Executive Order, or (iii) engages in or conspires to engage
      in any transaction that evades or avoids, or has the purpose of evading or
      avoiding, or attempts to violate, any of the prohibitions set forth in any
      Anti-Terrorism Law.

     

    ARTICLE
      V

     

    CONDITIONS
      TO PURCHASERS’
      OBLIGATIONS

     

    SECTION
      5.01 First
      Closing Date Conditions.
      The
      obligation of the Purchasers to purchase the Initial Purchased Securities
      purchased on the First Closing Date was subject to the prior or concurrent
      satisfaction of each of the conditions precedent set forth in Section
      5.01
      of the
      Original Purchase Agreement.

    
      
         

      

      
        -47-

        
          

        

      

      
         

      

    

     

    SECTION
      5.02 Second
      Closing Date Conditions.
      The
      obligation of the Purchasers to purchase the Second Closing Purchased Securities
      to be purchased on the Second Closing Date is subject to the prior or concurrent
      satisfaction of each of the conditions set forth in this Section
      5.02
      (the
“Second Closing
      Conditions”),
      except to the extent waived in writing by the Purchasers:

     

    (a) Financing
      Documents.
      All
      legal matters incident to this Agreement, the issuance of the Second Closing
      Purchased Securities hereunder and the other Financing Documents (including,
      without limitation, the UK Security Documents) shall be satisfactory to the
      Purchasers and there shall have been delivered to each Purchaser an executed
      counterpart of each of the Financing Documents (including, without limitation,
      the UK Security Documents) and the First Closing Date Perfection Certificate,
      as
      supplemented by the Second Closing Date Perfection Certificate.

     

    (b) Requirements
      of Law.
      The
      Purchasers shall be satisfied that each Issuer, their Subsidiaries, the Second
      Closing Transactions contemplated by this Agreement and the other Financing
      Documents and the Foundry Transactions shall be in full compliance with all
      material Requirements of Law.

     

    (c) Organizational
      Documents.
      The
      Purchasers shall have received:

     

    (i) a
      certificate of the secretary or assistant secretary of each Issuer dated the
      Second Closing Date certifying (A) that attached thereto is a true and
      complete copy of each Organizational Document of such Issuer certified (to
      the
      extent applicable) as of a recent date by the Secretary of State of the state
      of
      its organization (or other applicable Governmental Authority), (B) that
      attached thereto is a true and complete copy of resolutions duly adopted by
      the
      Board of Directors of such Issuer authorizing the execution, delivery and
      performance of the Financing Documents to be entered into by such Issuer in
      connection with the Second Closing Transactions and, in the case of Holdings
      and
      the Company, the issuance of the Second Closing Purchased Securities hereunder,
      and that such resolutions have not been modified, rescinded or amended and
      are
      in full force and effect and (C) as to the incumbency and specimen
      signature of each officer executing any such Financing Document or any other
      document delivered in connection therewith on behalf of such Issuer (together
      with a certificate of another officer as to the incumbency and specimen
      signature of the secretary or assistant secretary executing the certificate
      in
      this clause (i));

     

    (ii) a
      certificate as to the good standing of each Issuer (in so-called “long-form” if
      available) as of a recent date, from such Secretary of State (or other
      applicable Governmental Authority); and

     

    (iii) such
      other documents as the Agent or any Purchaser may reasonably
      request.

     

    (d) Officers’
      Certificate.
      The
      Purchasers shall have received a certificate, dated the Second Closing Date
      and
      signed by the chief executive officer and the chief financial officer or vice
      president of finance of Holdings, confirming compliance with the conditions
      precedent set forth in this Section 5.02.

    
      
         

      

      
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    (e) Foundry
      Seller Note Refinancing.
      The
      Foundry Seller Note Refinancing shall have been consummated to the satisfaction
      of the Purchasers.

     

    (f) Financial
      Statements; Projections.
      The
      Purchasers shall have received and shall be satisfied with the form and
      substance of the financial statements described in Section 3.04
      and with
      the forecasts of the financial performance of Holdings and its
      Subsidiaries.

     

    (g) Indebtedness
      and Minority Interests.
      After
      giving effect to the Second Closing Transactions and the other transactions
      contemplated hereby, neither Holdings nor any of its Subsidiaries shall have
      outstanding any Indebtedness or preferred equity other than (i) the Notes,
      (ii)
      the Purchased Preferred Stock, (iii) the Foundry Seller Notes (to the extent
      not
      refinanced pursuant to the Foundry Seller Notes Refinancing) and (iv) the
      Indebtedness listed on Schedule
      7.01(b).

     

    (h) Opinions
      of Counsel.
      The
      Purchasers shall have received a favorable written opinion of (i) Bryan
      Cave LLP, counsel for the Issuers, as to New York law and the Delaware Uniform
      Commercial Code substantially to the effect set forth in Exhibit E-1,
      (ii)
      Sullivan & Triggs, LLP, counsel for the Issuers, as to the Delaware General
      Corporation Law and federal law, substantially to the effect set forth in
Exhibit
      E-2
      and
      (iii) Bryan Cave LLP, counsel for the Issuers, as to the laws of England and
      Wales, substantially to the effect set forth in Exhibit
      E-3,
      in each
      case (A) dated the Second Closing Date, (B) addressed to the
      Purchasers and Agent and (C) covering the matters respectively set forth in
Exhibits
      E-1,
      E-2
      and
E-3
      and such
      other matters relating to the Financing Documents and the Second Closing
      Transactions as the Purchasers shall reasonably request.

     

    (i) Solvency
      Certificate and Other Reports.
      The
      Purchasers shall have received a solvency certificate in the form of
Exhibit J,
      dated
      the Second Closing Date and signed by the chief financial officer of Holdings.
      The Purchasers shall have received all other reports and opinions of appraisers,
      consultants or other advisors retained by it to review the business, operations
      or condition of Holdings and its Subsidiaries giving effect to the Second
      Closing Transactions, and shall be satisfied with such reports and
      opinions.

     

    (j) Consents.
      The
      Purchasers shall be satisfied that all requisite Governmental Authorities and
      third parties shall have approved or consented to the Foundry Transactions
      and
      the Second Closing Transactions, and there shall be no governmental or judicial
      action, actual or threatened, that has or would have, singly or in the
      aggregate, a reasonable likelihood of restraining, preventing or imposing
      burdensome conditions on the Foundry Transactions and the Second Closing
      Transactions or the other transactions contemplated hereby.

     

    (k) Litigation.
      There
      shall be no litigation, public or private, or administrative proceedings,
      governmental investigation or other legal or regulatory developments, actual
      or
      threatened, that, singly or in the aggregate, could reasonably be expected
      to
      result in a Material Adverse Effect, or could reasonably be expected to
      materially and adversely affect the ability of Holdings or its Subsidiaries
      to
      fully and timely perform their respective obligations under the Financing
      Documents, or the ability of the parties to consummate the financings
      contemplated hereby or the other Second Closing Transactions.

     

    (l) Uses
      of Proceeds.
      The
      uses of the proceeds from the issuance of the Second Closing Purchased
      Securities shall be as set forth in Section
      3.12.

    
      
         

      

      
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    (m) Fees.
      There
      shall have been paid all fees and other amounts due and payable on or prior
      to
      the Second Closing Date, including, without limitation, pursuant to the Second
      Closing Fee Letter and reimbursement or payment of all expenses (including
      the
      legal fees and expenses of Cahill Gordon & Reindel llp,
      special
      counsel to the Purchasers, and the fees and expenses of any local counsel,
      foreign counsel, appraisers, consultants and other advisors to the Purchasers)
      required to be reimbursed or paid by the Company hereunder or under any other
      Financing Document.

     

    (n) Private
      Placement Numbers.
      On or
      prior to the Second Closing Date, the Company shall have requested and received
      from S&P a private placement number for each of the Second Closing Purchased
      Securities.

     

    (o) No
      Default.
      Holdings and each of its Subsidiaries shall be in compliance in all material
      respects with all the terms and provisions set forth herein and in each other
      Financing Document on its part to be observed or performed, and, at the time
      of
      and immediately after giving effect to the issuance of the applicable Second
      Closing Purchased Securities and the application of the proceeds from the
      issuance thereof, no Default shall have occurred and be continuing on such
      date.

     

    (p) Representations
      and Warranties.
      Each of
      the representations and warranties (made by any Issuer set forth in
      Article III hereof or in any other Financing Document) shall be true and
      correct in all material respects (except that any representation and warranty
      that is qualified as to “materiality” or “Material Adverse Effect” shall be true
      and correct in all respects) on and as of the Second Closing Date with the
      same
      effect as though made on and as of such date, except to the extent such
      representations and warranties expressly relate to an earlier date.


     

    (q) No
      Legal Bar.
      No
      order, judgment or decree of any Governmental Authority shall purport to
      restrain any Purchaser from purchasing any Second Closing Purchased Security
      to
      be purchased by it. No injunction or other restraining order shall have been
      issued, shall be pending or noticed with respect to any action, suit or
      proceeding seeking to enjoin or otherwise prevent the consummation of, or to
      recover any damages or obtain relief as a result of, the transactions
      contemplated by this Agreement or the issuance of Second Closing Purchased
      Securities hereunder.

     

    (r) Absence
      of Material Adverse Effect.
      Since
      December 31, 2005, there shall have occurred no event, change, circumstance
      or
      occurrence that, individually or in the aggregate, has had or could reasonably
      be expected to result in a Material Adverse Effect.

     

    (s) Accuracy
      of Information.
      All
      information furnished by the Issuers and their respective representatives to
      the
      Purchasers on or prior to the Second Closing Date with respect to the business,
      management, operations, affairs, condition (financial or otherwise), assets,
      property, prospects or results of operations of Holdings and its Subsidiaries
      shall be accurate and complete in all material respects.

     

    (t) Maximum
      Total Leverage Ratio.
      Each
      Purchaser shall be satisfied that the Total Leverage Ratio, determined on a
      Pro
      Forma Basis as of March 31, 2007, for the twelve month period ending on such
      date, but including the Indebtedness under the Notes and the consummation of
      the
      other Second Closing Transactions, shall be no greater than 2.13 to
      1.0.

    
      
         

      

      
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    (u) Minimum
      Consolidated EBITDA.
      Each
      Purchaser shall be satisfied that the Consolidated EBITDA, determined on a
      Pro
      Forma Basis as of March 31, 2007, for the twelve month period ending on such
      date, but including the Indebtedness under the Notes and the consummation of
      the
      other Second Closing Transactions, shall be equal to or greater than $10,209,000
      (exclusive of expenses incurred in connection with the Second Closing
      Transactions).

     

    (v) Due
      Diligence.
      The
      Purchasers shall have completed their business, accounting, legal and
      environmental due diligence review of Holdings and its Subsidiaries and other
      matters relevant to the Transactions and such due diligence review shall have
      been completed to the satisfaction of the Purchasers in their sole
      discretion.

     

    (w) Simultaneous
      Purchase.
      Each of
      the Purchasers shall have simultaneously purchased the Purchased Securities
      to
      be purchased by such Purchaser.

     

    (x) Insurance.
      The
      Agent and the Purchasers shall have received a copy of, or a certificate as
      to
      coverage under, the insurance policies required by Section 6.04
      and the
      applicable provisions of the Security Documents, each of which shall be endorsed
      or otherwise amended to include a “standard” or “New York” lender’s loss payable
      or mortgagee endorsement (as applicable) and shall name the Agent, on behalf
      of
      the Secured Parties, as additional insured, in form and substance satisfactory
      to the Purchasers.

     

    (y) Personal
      Property Requirements.
      The
      Agent shall have received:

     

    (i) [Reserved]

     

    (ii) UCC
      financing statements in appropriate form for filing under the UCC, filings
      with
      the United States Patent and Trademark Office and United States Copyright Office
      and such other documents under applicable Requirements of Law in each
      jurisdiction as may be necessary or appropriate or, in the opinion of the
      Purchasers, desirable to perfect the Liens on the assets of Wyndcrest UK and
      Foundry created, or purported to be created, by the Security Documents and,
      with
      respect to all such UCC financing statements required to be filed pursuant
      to
      the Financing Documents, evidence satisfactory to the Purchasers that the
      Company has retained, at its sole cost and expense, a service provider
      acceptable to the Purchasers for the tracking of all such financing statements
      and notification to the Agent, of, among other things, the upcoming lapse or
      expiration thereof;

     

    (iii) certified
      copies of UCC, United States Patent and Trademark Office and United States
      Copyright Office, tax and judgment lien searches, bankruptcy and pending lawsuit
      searches or equivalent reports or searches, each of a recent date listing all
      effective financing statements, lien notices or comparable documents that name
      any Issuer as debtor and that are filed in those state and county jurisdictions
      in which any property of any Issuer is located and the state and county
      jurisdictions in which any Issuer is organized or maintains its principal place
      of business and such other searches that the Purchasers deem necessary or
      appropriate, none of which encumber the Collateral covered or intended to be
      covered by the Security Documents (other than Permitted Collateral Liens or
      any
      other Liens acceptable to the Purchasers);

     

    
      
         

      

      
        -51-

        
          

        

      

      
         

      

    

    (iv) evidence
      acceptable to the Purchasers that all applicable steps have been taken under
      the
      law of England and Wales or as reasonably requested by the Purchasers
to
      perfect the Liens created, or purported to be created, by the UK Security
      Documents; and

     

    (v) evidence
      acceptable to the Purchasers of payment or arrangements for payment by each
      Issuer of all applicable recording taxes, fees, charges, costs and reasonable
      expenses required for the recording of the UK Security Documents.

     

    ARTICLE
      VI

     

    AFFIRMATIVE
      COVENANTS

     

    Each
      Issuer warrants, covenants and agrees with each Noteholder that from the First
      Closing Date, or, in the case of Wyndcrest UK and Foundry, from the Second
      Closing Date, until the principal amounts (and premium, if any) of all Notes,
      and all interest and other Obligations hereunder in respect thereof, shall
      be
      paid in full, each (except as expressly limited to one or more specified
      Issuers) Issuer will, and will cause each of its Subsidiaries to:

     

    SECTION
      6.01 Financial
      Statements, Reports, etc.

     

    (a) Annual
      Reports.
      Furnish
      to each Noteholder, as soon as available and in any event within 120 days
      after the end of each fiscal year, beginning with the fiscal year ending
      December 31, 2006, (i) the consolidated and consolidating balance sheet of
      Holdings as of the end of such fiscal year and related consolidated and
      consolidating statements of income, cash flows and stockholders’ equity for such
      fiscal year, in comparative form with (x) such financial statements as of
      the end of, and for, the preceding fiscal year and (y) the budget for such
      fiscal year delivered pursuant to Section 6.01(h),
      and the
      notes thereto, all prepared in accordance with GAAP and, in the case of the
      consolidated financial statement, accompanied by an opinion of
      PricewaterhouseCoopers LLP or other independent public accountants of recognized
      national standing (which opinion shall not be qualified as to scope or contain
      any going concern or other qualification), stating that such financial
      statements fairly present, in all material respects, the consolidated financial
      condition, results of operations and cash flows of Holdings as of the dates
      and
      for the periods specified in accordance with GAAP, and (ii) such other
      information as is called for by Exhibit
      R-Annual
      attached
      hereto; provided,
      however, that
      if
      Holdings is then subject to the reporting requirements under Section 13 or
      Section 15(d) of the Exchange Act, the delivery by Holdings to such Noteholder
      of an Annual Report on Form 10-K or any successor form within the time periods
      above described shall satisfy the requirements of this Section
      6.01(a).
      The
      consolidating balance sheet and statements of income, stockholders’ equity and
      cash flows required by this paragraph may be in the form contained in the notes
      to the financial statements included in Holdings’ Form 10-K;

     

    (b) Quarterly
      Reports.
      Furnish
      to each Noteholder, as soon as available and in any event within 45 days
      after the end of each of the first three fiscal quarters of each fiscal year,
      beginning with the fiscal quarter ending June 30, 2006, (i) the
      consolidated and consolidating balance sheet of Holdings as of the end of such
      fiscal quarter and related consolidated and consolidating statements of income
      and cash flows for such fiscal quarter and for the then elapsed portion of
      the
      fiscal year, in comparative form with (x) the consolidated statements of income
      and cash flows for the comparable periods in the previous fiscal year and
      (y) the budget for such fiscal quarter delivered pursuant to Section
      6.01(h),
      all
      prepared in accordance with GAAP and accompanied by a certificate of a Financial
      Officer stating that such financial statements fairly present, in all material
      respects, the consolidated and consolidating financial condition, results of
      operations and cash flows of Holdings as of the date and for the periods
      specified in accordance with GAAP consistently applied, and on a basis
      consistent with audited financial statements referred to in clause (a) of
      this Section, subject to the absence of footnotes, normal year-end audit
      adjustments, and presentation in a condensed format omitting certain line items
      required by GAAP, and (ii) such other information as is called for by
Exhibit
      R-Quarterly
      attached
      hereto; provided,
      however, that
      if
      Holdings is then subject to the reporting requirements under Section 13 or
      Section 15(d) of the Exchange Act, the delivery by Holdings to such Noteholder
      of a Quarterly Report on Form 10-Q or any successor form within the time periods
      above described shall satisfy the requirements of this Section
      6.01(b).
      The
      consolidating balance sheet and statements of income and cash flows required
      by
      this paragraph may be in the form contained in the notes to the financial
      statements included in Holdings’ Form 10-Q;

    
      
         

      

      
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    (c) Monthly
      Reports.
      Furnish
      to each Noteholder, within 30 days after the end of each fiscal month
      during the period when the Issuers are required to comply with the covenant
      set
      forth in Section
      7.10(b),
      and
      thereafter 30 days after the end of the first two months of each fiscal quarter,
      (i) the consolidated and consolidating balance sheet of Holdings as of the
      end of each such month and the related consolidated and consolidating statements
      of income and cash flows of Holdings for such month and for the then elapsed
      portion of the fiscal year, in comparative form with (x) the consolidated and
      consolidating statements of income and cash flows for the comparable periods
      in
      the previous fiscal year and (y) the budget for such fiscal month delivered
      pursuant to Section
      6.01(h),
      to be
      prepared in accordance with GAAP, consistently applied, subject to the absence
      of footnotes, normal year-end audit adjustments and presentation in a condensed
      format omitting certain line items required by GAAP; provided
      that no
      monthly report required under clause (i) of this Section
      6.01(c)
      shall be
      required to include information relating to Foundry prior to the monthly report
      for the monthly period ended July 31, 2007; and (ii) such internally
      generated monthly and other reports as may be provided from time to time to
      any
      Investor;

     

    (d) Financial
      Officer’s Certificate.
      Furnish
      to each Noteholder, (i) (A) concurrently with any delivery of financial
      statements under Section 6.01(a),
      (b)
      or
(c),
      a
      Compliance Certificate (it being understood that such Compliance Certificate
      shall only be required on a monthly basis for so long as Holdings is required
      to
      comply with the provisions of Section 7.10(b))
      (x) certifying that during the period covered thereby no Default has
      occurred or, if such a Default has occurred, specifying the nature and extent
      thereof and any corrective action taken or proposed to be taken with respect
      thereto, (y) beginning with the fiscal quarter ending June 30, 2006,
      setting forth computations in reasonable detail satisfactory to the Required
      Holders demonstrating compliance with the covenants contained in Sections 7.07(f)
      and
7.10
      and
      (z) showing a reconciliation of Consolidated EBITDA to the net income set
      forth on the statement of income; and (B) no later than 3 Business Days after
      each fiscal month in which Holdings is required to comply with the covenant
      set
      forth in Section
      7.10(b)
      a
      certificate of a Financial Officer certifying as to the cash and Cash
      Equivalents balances of Holdings and its Subsidiaries as of the last day of
      such
      fiscal month, based solely on account information available online, and no
      later
      than 15 calendar days after each fiscal month in which Holdings is required
      to
      comply with the covenant set forth in Section
      7.10(b)
      a
      certificate of a Financial Officer certifying as to the amount of Qualified
      Cash
      as of the last day of such fiscal month and whether or not the Minimum Qualified
      Cash Requirement for such fiscal month has been satisfied; and (ii) unless
      prohibited by professional standards applicable to such accounting firm,
      concurrently with any delivery of financial statements under Section 6.01(a)
      above,
      beginning with the fiscal year ending December 31, 2006, a report of the
      accounting firm opining on or certifying such financial statements stating
      that
      in the course of its regular audit of the financial statements of Holdings
      and
      its Subsidiaries, which audit was conducted in accordance with generally
      accepted auditing standards, such accounting firm obtained no knowledge that
      any
      Default insofar as it relates to financial or accounting matters has occurred
      or, if in the opinion of such accounting firm such a Default has occurred,
      specifying the nature and extent thereof;

    
      
         

      

      
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    (e) Financial
      Officer’s Certificate Regarding Collateral.
      Furnish
      to each Noteholder, concurrently with any delivery of financial statements
      under
Section 6.01(a),
      a
      certificate of a Financial Officer setting forth the information required
      pursuant to the First Closing Date Perfection Certificate, as supplemented
      by
      the Second Closing Date Perfection Certificate, or confirming that there has
      been no change in such information since the date of the latest Perfection
      Certificate Supplement;

     

    (f) Public
      Reports.
      Furnish
      to each Noteholder, promptly after the same become publicly available, copies
      of
      all periodic and other reports, proxy statements and other materials filed
      by
      Holdings or any of its Subsidiaries with the Commission, or any Governmental
      Authority succeeding to any or all of the functions of said Commission, or
      with
      any national securities exchange, or distributed to holders of its Indebtedness
      pursuant to the terms of the documentation governing such Indebtedness (or
      any
      trustee, agent or other representative therefor), as the case may
      be;

     

    (g) Management
      Letters.
      Furnish
      to each Noteholder, promptly after the receipt thereof by Holdings or any of
      its
      Subsidiaries, a copy of any “management letter” received by any such person from
      its certified public accountants and the management’s responses
      thereto;

     

    (h) Budgets.
      Furnish
      to each Noteholder, no later than 15 days before the beginning of each fiscal
      year, a budget for Holdings and its Subsidiaries, including balance sheets,
      statements of income and sources and uses of cash and otherwise in the form
      attached hereto as Exhibit
      R-Annual,
      for (i)
      each month of such fiscal year with appropriate presentation and discussion
      of
      the principal assumptions upon which such budgets are based, accompanied by
      the
      statement of a Financial Officer of Holdings to the effect that the budget
      of
      Holdings and its Subsidiaries is a reasonable estimate for the periods covered
      thereby;

     

    (i) Meetings
      with Noteholders.
      Within
      five Business Days after delivery of financial statements described in
Section 6.01(a),
      (b)
      or
(c)
      or the
      budgets described in Section 6.01(h),
      at the
      request of the Required Holders, cause the key management of Holdings and its
      Significant Subsidiaries to hold a meeting (at a mutually agreeable location,
      venue and time or, at the option of the Required Holders, by conference call)
      with all Noteholders who choose to attend such meeting, at which meeting shall
      be reviewed the financial results for such period and the financial condition
      of
      Holdings and its Subsidiaries and the budgets presented for such
      period;

     

    (j) Organization.
      Furnish
      to each Noteholder, concurrently with any delivery of financial statements
      under
Section 6.01(a),
      an
      accurate organizational chart as required by Section 3.07(d),
      or
      confirmation that there are no changes to Schedule 10(a)
      to the
      First Closing Date Perfection Certificate, as supplemented by the Second Closing
      Date Perfection Certificate;

     

    (k) Organizational
      Documents.
      Promptly provide copies to each Noteholder of any Organizational Documents
      that
      have been amended or modified in accordance with the terms hereof and deliver
      to
      each Noteholder a copy of any notice of default given or received by Holdings
      or
      any of its Subsidiaries under any Organizational Document within 15 days after
      Holdings or such Subsidiary, as appropriate, gives or receives such
      notice;

    
      
         

      

      
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    (l) Original
      Issue Discount Information.
      Deliver
      to each Noteholder all original issue discount information relating to the
      Notes
      as may be required by applicable law to be delivered by the issuer of such
      Indebtedness to the obligees or purchasers thereof; and

     

    (m) Other
      Information.
      Promptly, from time to time, furnish to each Noteholder such other information
      regarding the operations, business affairs and financial condition of Holdings
      or any of its Subsidiaries, or compliance with the terms of any Financing
      Document, as the Agent or the Required Holders may reasonably request, and,
      upon
      the request of any such Noteholder contemplating a sale of Notes pursuant to
      Rule 144A, furnish, at the Issuers’ expense, to such Noteholders and beneficial
      owners of any Note and prospective purchasers of such securities information
      satisfying the requirements of subsection (d)(4) of Rule 144A.

     

    SECTION
      6.02 Litigation
      and Other Notices.
      Furnish
      to the Agent written notice of the following promptly after it becomes known
      to
      a Responsible Officer of Holdings or any of its Subsidiaries (and, in any event,
      within five (5) Business Days after it so becomes known):

     

    (a) any
      Default, specifying the nature and extent thereof and the corrective action
      (if
      any) taken or proposed to be taken with respect thereto;

     

    (b) the
      filing or commencement of, or any threat or notice of intention of any person
      to
      file or commence, any action, suit, litigation or proceeding, whether at law
      or
      in equity by or before any Governmental Authority, (i) against Holdings or
      any of its Subsidiaries or any Affiliate thereof that could reasonably be
      expected to result in a Material Adverse Effect or (ii) with respect to any
      Financing Document;

     

    (c) any
      development that has resulted in, or could reasonably be expected to result
      in a
      Material Adverse Effect;

     

    (d) the
      occurrence of a Casualty Event that could reasonably be expected to result
      in a
      Material Adverse Effect; and

     

    (e) (i) the
      incurrence of any Lien (other than Permitted Collateral Liens) on, or claim
      asserted against, any material portion of the Collateral or (ii) the
      occurrence of any other event which could materially adversely affect the value
      of the Collateral.

     

    SECTION
      6.03 Existence;
      Businesses and Properties.

     

    (a) Do
      or
      cause to be done all things necessary to preserve, renew and maintain in full
      force and effect its legal existence, except as otherwise expressly permitted
      under Section 7.05
      or
Section 7.06
      or, in
      the case of any Subsidiary Guarantor, where the failure to perform such
      obligations, individually or in the aggregate, could not reasonably be expected
      to result in a Material Adverse Effect.

     

    (b) Do
      or
      cause to be done all things necessary to obtain, preserve, renew, extend and
      keep in full force and effect the rights, licenses, permits, privileges,
      franchises, authorizations, patents, copyrights, trademarks and trade names
      material to the conduct of its business; maintain and operate such business
      in
      substantially the manner in which it is presently conducted and operated; comply
      with all applicable Requirements of Law (including any and all zoning, or
      building laws, ordinances, codes or approvals, Environmental Law or any building
      permits or any restrictions of record or agreements affecting the Real Property)
      and decrees and orders of any Governmental Authority, whether now in effect
      or
      hereafter enacted, except where the failure to comply, individually or in the
      aggregate, could not reasonably be expected to result in a Material Adverse
      Effect; pay and perform its obligations under all Leases, and Transaction
      Documents; and at all times maintain, preserve and protect all property material
      to the conduct of such business and keep such property in good repair, working
      order and condition (other than wear and tear occurring in the ordinary course
      of business) and from time to time make, or cause to be made, all needful and
      proper repairs, renewals, additions, improvements and replacements thereto
      necessary in order that the business carried on in connection therewith may
      be
      properly conducted at all times; provided
      that
      nothing in this Section 6.03(b)
      shall
      prevent (i) sales of property, consolidations or mergers by or involving
      Holdings or any of its Subsidiaries in accordance with Section 7.05
      or
Section 7.06;
      (ii) the withdrawal by Holdings or any of its Subsidiaries of its
      qualification as a foreign corporation in any jurisdiction where such
      withdrawal, individually or in the aggregate, could not reasonably be expected
      to result in a Material Adverse Effect; or (iii) the abandonment by
      Holdings or any of its Subsidiaries of any rights, franchises, licenses,
      trademarks, trade names, copyrights or patents that such person reasonably
      determines are not useful to its business or no longer commercially
      desirable.

    
      
         

      

      
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    SECTION
      6.04 Insurance.

     

    (a) Generally.
      Keep
      its insurable property adequately insured at all times by financially sound
      and
      reputable insurers; maintain such other insurance, to such extent and against
      such risks as is customary with companies of the same or similar size in the
      same or similar businesses operating in the same or similar locations, including
      insurance with respect to Mortgaged Properties, if any, and such other
      properties as are material to the business of Holdings and its Subsidiaries
      against such casualties and contingencies and of such types and in such amounts
      with such deductibles as is customary in the case of similar businesses of
      the
      same size operating in the same or similar locations, all such insurance to
      (i) provide that no cancellation, material reduction in amount or material
      change in coverage thereof shall be effective until at least 30 days after
      receipt by the Agent of written notice thereof, (ii) name the Agent as
      mortgagee (in the case of property insurance) or additional insured (in the
      case
      of liability insurance) or loss payee (in the case of property insurance),
      as
      applicable, (iii) if reasonably requested by the Agent, include a breach of
      warranty clause and (iv) be reasonably satisfactory in all other respects
      to the Agent, including (i) physical hazard insurance on an “all risk”
basis, (ii) commercial general liability insurance against claims for
      bodily injury, death or property damage covering any and all insurable claims,
      (iii) explosion insurance in respect of any boilers, machinery or similar
      apparatus constituting Collateral, (iv) business interruption insurance,
      (v) worker’s compensation insurance and such other insurance as may be
      required by any Requirement of Law and (vi) such other insurance against risks
      as the Required Holders may from time to time reasonably require (such policies
      to be in such form and amounts and having such coverage as may be reasonably
      satisfactory to the Required Holders); provided
      that
      with respect to physical hazard insurance, neither the Agent nor Holdings or
      any
      of its Subsidiaries, as applicable, shall agree to the adjustment of any claim
      thereunder without the consent of the other (such consent not to be unreasonably
      withheld or delayed); provided,
      further,
      that no
      such consent of Holdings or any of its Subsidiaries shall be required during
      an
      Event of Default. 

     

    (b) Notice
      to Agent.
      Notify
      the Agent immediately whenever any separate insurance concurrent in form or
      contributing in the event of loss with that required to be maintained under
      this
Section 6.04
      is taken
      out (except on a short-term basis consistent with the past practice of the
      Company and the ordinary course of its business) by Holdings or any of its
      Subsidiaries; and promptly deliver to the Agent a duplicate original copy of
      such policy or policies.

     

    (c) Flood
      Insurance.
      With
      respect to each Mortgaged Property, obtain flood insurance in such total amount
      as the Agent or the Required Holders may from time to time reasonably require,
      if at any time the area in which any improvements located on any Mortgaged
      Property is designated a “flood hazard area” in any Flood Insurance Rate Map
      published by the Federal Emergency Management Agency (or any successor agency),
      and otherwise comply with the National Flood Insurance Program as set forth
      in
      the Flood Disaster Protection Act of 1973, as amended from time to
      time.

    
      
         

      

      
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    (d) Broker’s
      Report.
      Use its
      commercially reasonable efforts to cause to be delivered to the Agent a report
      of a reputable insurance broker with respect to such insurance and such
      supplemental reports with respect thereto as the Agent or the Required Holders
      may from time to time reasonably request.

     

    (e) Mortgaged
      Properties.
      In the
      case of an Issuer that is an owner of Mortgaged Property, to not take any action
      that is reasonably likely to be the basis for termination, revocation or denial
      of any insurance coverage required to be maintained under such Issuer’s
      respective Mortgage or that could be the basis for a defense to any claim under
      any Insurance Policy maintained in respect of the Premises, and otherwise comply
      in all material respects with all Insurance Requirements in respect of the
      Premises; provided,
      however,
      that
      such Issuer may, at its own expense and after written notice to the Agent and
      the Noteholders, (i) contest the applicability or enforceability of any
      such Insurance Requirements by appropriate legal proceedings, the prosecution
      of
      which does not constitute a basis for cancellation or revocation of any
      insurance coverage required under this Section 6.04
      or
      (ii) cause the Insurance Policy containing any such Insurance Requirement
      to be replaced by a new policy complying with the provisions of this
Section 6.04.

     

    SECTION
      6.05 Obligations
      and Taxes.

     

    (a) Payment
      of Obligations.
      Pay its
      Indebtedness and other material obligations promptly and in accordance with
      their terms and pay and discharge promptly when due all Taxes, assessments
      and
      governmental charges or levies imposed upon it or upon its income or profits
      or
      in respect of its property, before the same shall become delinquent or in
      default, as well as all lawful claims for labor, services, materials and
      supplies or otherwise that, if unpaid, might give rise to a Lien other than
      a
      Permitted Lien upon such properties or any part thereof; provided
      that
      such payment and discharge shall not be required with respect to any such Tax,
      assessment, charge, levy or claim so long as (x)(i) the validity or amount
      thereof shall be contested in good faith by appropriate proceedings timely
      instituted and diligently conducted and (ii) in the case of Collateral,
      Holdings or the applicable Subsidiary shall have otherwise complied with the
      Contested Collateral Lien Conditions and (y) the failure to pay could not
      reasonably be expected to result in a Material Adverse Effect.

     

    (b) Filing
      of Returns.
      Timely
      (subject to permitted extensions) and correctly file all material Tax Returns
      required to be filed by it and withhold, collect and remit all Taxes that it
      is
      required to collect, withhold or remit.

     

    (c) Tax
      Shelter Reporting.
      In the
      case of the Company, in the event that it determines to take any action
      inconsistent with its present intention not to treat the Notes as being a
“reportable transaction” within the meaning of Treasury Regulation
      Section 1.6011-4, promptly notify the Noteholders thereof.

     

    (d) Treatment
      of Warrants.
      The
      Issuers and the Purchasers agree that the Warrants shall be treated as stock
      for
      all U.S. income tax purposes and no party shall take a position in contravention
      herewith unless otherwise required by law. For the avoidance of doubt, the
      foregoing agreement shall not alter the commercial rights and obligations of
      the
      Issuers and the Purchasers with respect to the Warrants, including but not
      limited to voting rights and the right to participate in dividends or
      disposition proceeds with respect to the Common Stock, and shall not impact
      the
      financial or accounting treatment by the Issuers of the put right associated
      with the Warrant.

    
      
         

      

      
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    SECTION
      6.06 Employee
      Benefits.
      (a) Comply in all material respects with the applicable provisions of ERISA
      and the Code (relating to employee benefits) and (b) furnish to the Agent
      (x) as soon as possible after, and in any event within five (5) Business
      Days after any Responsible Officer of Holdings or any of its Subsidiaries or
      any
      ERISA Affiliates of Holdings or any of its Subsidiaries knows or has reason
      to
      know that, any ERISA Event has occurred that, alone or together with any other
      ERISA Event, could reasonably be expected to result in liability of Holdings
      or
      any of its Subsidiaries or any of their ERISA Affiliates thereof in an aggregate
      amount exceeding $100,000 or the imposition of a Lien, a statement of a
      Financial Officer of the Company or Holdings setting forth details as to such
      ERISA Event and the action, if any, that Holdings and its Subsidiaries propose
      to take with respect thereto, and (y) upon request by the Required Holders,
      copies of (i) each Schedule B (Actuarial Information) to the annual
      report (Form 5500 Series) filed by Holdings or any of its Subsidiaries or any
      ERISA Affiliate with the Internal Revenue Service with respect to each Plan;
      (ii) the most recent actuarial valuation report for each Plan;
      (iii) all notices received by Holdings or any of its Subsidiaries or any
      ERISA Affiliate from a Multiemployer Plan sponsor or any governmental agency
      concerning an ERISA Event; and (iv) such other documents or governmental
      reports or filings relating to any Plan (or employee benefit plan sponsored
      or
      contributed to by Holdings or any of its Subsidiaries) as the Required Holders
      shall reasonably request.

     

    SECTION
      6.07 Maintaining
      Records; Access to Properties and Inspections.
      Keep
      proper books of record and account in which full, true and correct entries
      in
      all material respects in conformity with GAAP and all Requirements of Law are
      made of all material dealings and transactions in relation to its business
      and
      activities and permit any representatives designated by the Agent or any
      Noteholder to visit, audit and inspect its financial records and property,
      at
      reasonable times and as often as reasonably requested (but in no event, more
      than once in a twelve month period if no Default or Event of Default shall
      have
      occurred) and to make extracts from and copies of such financial records, and
      permit any representatives designated by the Noteholders or the Agent to discuss
      its affairs, finances, accounts and condition with its officers and employees
      and advisors (including independent accountants).

     

    SECTION
      6.08 Use
      of Proceeds.
      Use the
      proceeds from the issuance of the Second Closing Purchased Securities only
      for
      the purposes set forth in Section 3.12.

     

    SECTION
      6.09 Compliance
      with Environmental Laws; Environmental Reports.
      

     

    (a) Comply,
      and cause all lessees and other persons occupying Real Property of Holdings
      or
      any of its Subsidiaries to comply, in all material respects with all
      Environmental Laws and Environmental Permits applicable to its operations and
      Real Property; obtain and renew all material Environmental Permits applicable
      to
      its operations and Real Property; and conduct all Responses required by, and
      in
      accordance with, Environmental Laws; provided
      that
      neither Holdings nor any of its Subsidiaries shall be required to undertake
      any
      Response to the extent that its obligation to do so is being contested in good
      faith and by proper proceedings and appropriate reserves are being maintained
      with respect to such circumstances in accordance with GAAP.

     

    (b) If
      a
      Default caused by reason of a breach of Section 3.18
      or
Section 6.09(a)
      shall
      have occurred and be continuing for more than 20 days without Holdings or
      any of its Subsidiaries commencing activities reasonably likely to cure such
      Default in accordance with Environmental Laws, at the written request of the
      Agent or the Required Holders, provide to the Agent within 45 days after
      such request, at the expense of the Company an environmental assessment report
      regarding the matters which are the subject of such Default, including, where
      appropriate, soil and/or groundwater sampling, prepared by an environmental
      consulting firm and, in form and substance, reasonably acceptable to the Agent
      and indicating the presence or absence of Hazardous Materials and the estimated
      cost of any compliance or Response to address them.

    
      
         

      

      
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    SECTION
      6.10 Additional
      Collateral; Additional Guarantors.

     

    (a) Subject
      to this Section 6.10,
      with
      respect to any property acquired after the First Closing Date by any Issuer
      that
      is intended to be subject to the Lien created by any of the Security Documents
      but is not so subject, promptly (and in any event within 30 days after the
      acquisition thereof) (i) execute and deliver to the Noteholders and the
      Agent such amendments or supplements to the relevant Security Documents or
      such
      other documents as the Agent or the Required Holders shall deem necessary or
      advisable to grant to the Agent, for its benefit and for the benefit of the
      other Secured Parties, a Lien on such property subject to no Liens other than
      Permitted Collateral Liens, and (ii) take all actions necessary to cause
      such Lien to be duly perfected to the extent required by such Security Document
      in accordance with all applicable Requirements of Law, including the filing
      of
      financing statements in such jurisdictions as may be reasonably requested by
      the
      Agent or the Required Holders, and (iii) otherwise take such actions and
      execute and/or deliver to the Agent such documents as the Agent or the Required
      Holders shall require to confirm the validity, perfection and priority of the
      Lien of the Security Documents on such after-acquired properties. 

     

    (b) With
      respect to any person that becomes a Significant Subsidiary of Holdings after
      the First Closing Date (including, without limitation, any existing Subsidiary
      that is not prior to such time a Significant Subsidiary), promptly (and in
      any
      event within 30 days after such person becomes a Significant Subsidiary)
      (i) deliver to the Agent the certificates, if any, representing all of the
      Equity Interests of such Subsidiary, together with undated stock powers or
      other
      appropriate instruments of transfer executed and delivered in blank by a duly
      authorized officer of the holder(s) of such Equity Interests, and all
      intercompany notes owing from such Subsidiary to any Issuer together with
      instruments of transfer executed and delivered in blank by a duly authorized
      officer of such Issuer and (ii) cause such new Significant Subsidiary
      (A) to execute a Joinder Agreement or such comparable documentation to
      become a Subsidiary Guarantor and a joinder agreement to the applicable Security
      Document, substantially in the form annexed thereto or, in the case of a Foreign
      Subsidiary, execute a security agreement compatible with the laws of such
      Foreign Subsidiary’s jurisdiction in form and substance reasonably satisfactory
      to the Agent and the Required Holders, and (B) to take all actions
      necessary or advisable in the opinion of the Agent and the Required Holders
      to
      cause the Lien created by the applicable Security Document to be duly perfected
      to the extent required by such agreement in accordance with all applicable
      Requirements of Law, including the filing of financing statements in such
      jurisdictions as may be reasonably requested by the Agent or the Required
      Holders. Notwithstanding the foregoing, (1) the certificates representing
      the Equity Interests required to be delivered to the Agent pursuant to
      clause (i) of this Section 6.10(b)
      shall
      not include any Equity Interests of a Foreign Subsidiary created or acquired
      after the First Closing Date and (2) no Foreign Subsidiary shall be
      required to take the actions specified in clause (ii) of this Section 6.10(b),
      if, in
      the case of either clause (1) or (2), doing so would constitute an
      investment of earnings in United States property under Section 956 (or a
      successor provision) of the Code, which investment would or could reasonably
      be
      expected to trigger a material increase in the net income of a United States
      shareholder of such Subsidiary pursuant to Section 951 (or a successor
      provision) of the Code, as reasonably determined by the Required Holders;
provided
      that
      this exception shall not apply to (A) Voting Stock of any Subsidiary which
      is a first-tier controlled foreign corporation (as defined in
      Section 957(a) of the Code) representing 66% of the total voting power of
      all outstanding Voting Stock of such Subsidiary and (B) 100% of the Equity
      Interests not constituting Voting Stock of any such Subsidiary, except that
      any
      such Equity Interests constituting “stock entitled to vote” within the meaning
      of Treasury Regulation Section 1.956-2(c)(2) shall be treated as Voting
      Stock for purposes of this Section 6.10(b).
      

    
      
         

      

      
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    (c) Promptly
      grant to the Agent, within 30 days of the acquisition thereof, a security
      interest in and Mortgage on (i) each Real Property owned in fee by such
      Issuer as is acquired by such Issuer after the First Closing Date and that,
      together with any improvements thereon, individually has a fair market value
      of
      at least $50,000, and (ii) unless the Required Holders otherwise consent,
      each leasehold interest of such Issuer in Real Property of such Issuer, acquired
      after the First Closing Date, which leasehold interest individually has a fair
      market value of at least $50,000, in each case, as additional security for
      the
      Obligations (unless the subject property is already mortgaged to a third party
      to the extent permitted by Section 7.02).
      Such
      Mortgages shall be granted pursuant to documentation reasonably satisfactory
      in
      form and substance to the Agent and the Required Holders and shall constitute
      valid and enforceable perfected Liens subject only to Permitted Collateral
      Liens
      or other Liens acceptable to the Agent and the Required Holders. The Mortgages
      or instruments related thereto shall be duly recorded or filed in such manner
      and in such places as are required by law to establish, perfect, preserve and
      protect the Liens in favor of the Agent required to be granted pursuant to
      the
      Mortgages and all taxes, fees and other charges payable in connection therewith
      shall be paid in full. Such Issuer shall otherwise take such actions and execute
      and/or deliver to the Agent and the Required Holders such documents as the
      Agent
      or the Required Holders shall reasonably require to confirm the validity,
      perfection and priority of the Lien of any new Mortgage against such
      after-acquired Real Property (including a Title Policy, a Survey and local
      counsel opinion (in form and substance reasonably satisfactory to the Agent
      and
      the Required Holders) in respect of such Mortgage).

     

    SECTION
      6.11 Security
      Interests; Further Assurances.
      Promptly, upon the reasonable request of the Agent or the Required Holders,
      at
      the Company’s expense, execute, acknowledge and deliver, or cause the execution,
      acknowledgment and delivery of, and thereafter register, file or record, or
      cause to be registered, filed or recorded, in an appropriate governmental
      office, any document or instrument supplemental to or confirmatory of the
      Security Documents or otherwise deemed by the Agent or the Required Holders
      reasonably necessary or desirable for the continued validity, perfection and
      priority of the Liens on the Collateral covered thereby subject to no other
      Liens except as permitted by the applicable Security Document, or obtain any
      consents or waivers as may be necessary or appropriate in connection therewith.
      Deliver or cause to be delivered to the Noteholders and the Agent from time
      to
      time such other documentation, consents, authorizations, approvals and orders
      in
      form and substance reasonably satisfactory to the Agent and the Required Holders
      as the Agent and the Required Holders shall reasonably deem necessary to perfect
      or maintain the Liens on the Collateral pursuant to the Security Documents.
      Upon
      the exercise by the Agent or any Noteholder of any power, right, privilege
      or
      remedy pursuant to any Financing Document which requires any consent, approval,
      registration, qualification or authorization of any Governmental Authority,
      execute and deliver all applications, certifications, instruments and other
      documents and papers that the Agent or the Required Holders may reasonably
      require. If the Agent or the Required Holders determine that they are required
      by a Requirement of Law to have appraisals prepared in respect of the Real
      Property of any Issuer constituting Collateral, Holdings shall provide to the
      Noteholders appraisals that satisfy the applicable requirements of the Real
      Estate Appraisal Reform Amendments of FIRREA and are otherwise in form and
      substance satisfactory to the Agent and the Required Holders. 

    
      
         

      

      
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    SECTION
      6.12 Information
      Regarding Collateral.

     

    (a) Not
      effect any change (i) in any Issuer’s legal name, (ii) in the location
      of any Issuer’s chief executive office, (iii) in any Issuer’s identity or
      organizational structure, (iv) in any Issuer’s Federal Taxpayer
      Identification Number or organizational identification number, if any, or
      (v) in any Issuer’s jurisdiction of organization (in each case, including
      by merging with or into any other entity, reorganizing, dissolving, liquidating,
      reorganizing or organizing in any other jurisdiction), until (A) it shall
      have given the Agent and the Noteholders not less than 30 days’ prior
      written notice (in the form of an Officers’ Certificate), or such lesser notice
      period agreed to by the Agent, of its intention so to do, clearly describing
      such change and providing such other information in connection therewith as
      the
      Agent or the Required Holders may reasonably request and (B) it shall have
      taken all action reasonably satisfactory to the Agent to maintain the perfection
      and priority of the security interest of the Agent for the benefit of the
      Secured Parties in the Collateral, if applicable. Each Issuer agrees to promptly
      provide the Agent with certified Organizational Documents reflecting any of
      the
      changes described in the preceding sentence. Each Issuer also agrees to promptly
      notify the Agent of any change in the location of any office in which it
      maintains books or records relating to Collateral owned by it or any office
      or
      facility at which Collateral is located (including the establishment of any
      such
      new office or facility), other than changes in location to a Mortgaged Property
      or a leased property subject to a Landlord Access Agreement. 

     

    (b) Concurrently
      with the delivery of financial statements pursuant to Section 6.01(a),
      deliver
      to the Noteholders and the Agent a Perfection Certificate Supplement and a
      certificate of a Financial Officer of the Company certifying that all UCC
      financing statements (including fixture filings, as applicable) or other
      appropriate filings, recordings or registrations, including all refilings,
      rerecordings and reregistrations, containing a description of the Collateral
      have been filed of record in each governmental, municipal or other appropriate
      office in each jurisdiction necessary to protect and perfect the security
      interests and Liens under the Security Documents for a period of not less than
      18 months after the date of such certificate (except as noted therein with
      respect to any continuation statements to be filed within such
      period).

     

    SECTION
      6.13 Affirmative
      Covenants with Respect to Leases.
      With
      respect to each Lease under which it is the lessor, perform all the obligations
      imposed upon the landlord under such Lease and enforce all of the tenant’s
      obligations thereunder, except where the failure to so perform or enforce could
      not reasonably be expected to result in a Property Material Adverse
      Effect.

     

    SECTION
      6.14 Payment
      of Principal, Premium and Interest.In
      the
      case of the Company, duly and punctually pay the principal of (and premium,
      if
      any, on) and all interest on the Notes and all other fees, costs and expenses
      owed hereunder in accordance with the terms of the Notes and this
      Agreement.
      The
      Company shall pay interest on overdue principal (including post-petition
      interest in a proceeding under any Bankruptcy Law), and interest on overdue
      interest, to the extent lawful, at the rate specified in the Notes.

     

    SECTION
      6.15 Offer
      To Repurchase upon Change in Control.

     

    (a) Not
      less
      than five (5) Business Days prior to the scheduled or first anticipated date
      of
      the occurrence of a Change in Control, the Company shall make an offer (a
“Change
      in Control Offer”)
      to
      each Noteholder to repurchase all or any part of each Noteholder’s Notes at an
      offer price in cash equal to the sum of 100% of the outstanding principal amount
      thereof plus the Change in Control Premium, plus accrued and unpaid interest,
      if
      any, and fees thereon to the Change in Control Payment Date (the “Change
      in Control Payment”).
      The
      Change in Control Offer may state that the obligation of the Company to
      repurchase Notes pursuant to the Change in Control Offer is subject to the
      occurrence of the Change in Control.

    
      
         

      

      
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    (b)
      Not
      less
      than five (5) Business Days prior to the earlier of the scheduled or first
      anticipated date of the occurrence of a Change in Control, the Company shall
      send, by overnight courier, a notice to each Noteholder stating:

     

    (i) that
      the
      Change in Control Offer is being made pursuant to this Section
      6.15
      and that
      all Notes tendered will be accepted for payment;

     

    (ii) the
      purchase price and the purchase date, which shall be the time and date of the
      consummation of such Change in Control (the “Change
      in Control Payment Date”);

     

    (iii) that
      any
      Notes not tendered will continue to accrue interest;

     

    (iv) that,
      unless the Company defaults in the payment of the Change in Control Payment,
      all
      Notes accepted for payment pursuant to the Change in Control Offer shall cease
      to accrue interest after the Change in Control Payment Date;

     

    (v) that
      Noteholders electing to have any Notes purchased pursuant to a Change in Control
      Offer shall be required to surrender the Notes, with the form entitled “Option
      of Holder to Elect Purchase” on the reverse of the Notes completed, to the
      Company or its designated agent for such purpose at the address specified in
      the
      notice prior to 5:00 p.m. Eastern Time on the Business Day preceding the Change
      in Control Payment Date;

     

    (vi) that
      Noteholders will be entitled to withdraw their election if the Company or its
      designated agent for such purpose receives, not later than 9:00 a.m. Eastern
      Time on the Change in Control Payment Date, a telegram, telex, facsimile
      transmission or letter setting forth the name of the Noteholder, the principal
      amount of Notes delivered for purchase, and a statement that such Noteholder
      is
      withdrawing his election to have the Notes purchased; and

     

    (vii) that
      Noteholders that have elected to have their Notes purchased only in part will
      be
      issued new Notes equal in principal amount to the unpurchased portion of the
      Notes surrendered.

     

    (c)
      On
      the
      Change in Control Payment Date, the Company shall, to the extent lawful,
      (i) accept for payment all Notes or portions thereof properly tendered
      pursuant to the Change in Control Offer, (ii) transmit to each Noteholder
      so tendered the Change in Control Payment for such Notes by wire transfer in
      immediately available funds, and (iii) execute and mail to each Noteholder
      a new Note equal in principal amount to any unpurchased portion of the Notes
      surrendered, if any. The Company shall inform the Noteholders in writing of
      the
      results of the Change in Control Offer on or as soon as practicable after the
      Change in Control Payment Date.

     

    SECTION
      6.16 Offer
      To Purchase by Application of Excess Proceeds.

     

    (a) Excess
      Proceeds Offer.
      No later
      than (x) one Business Day following receipt of any Net Cash Proceeds of any
      Debt Issuance and (y) the 271st day following each receipt by Holdings or
      any of its Subsidiaries of Net Cash Proceeds of an Asset Sale or Casualty Event
      to the extent such Net Cash Proceeds have not been applied in accordance with
      Sections 7.06(b)
      or
(c),
      the
      Company shall in each case apply such Net Cash Proceeds to an offer (an
“Excess
      Proceeds Offer”)
      to
      repurchase the Notes, at a purchase price in cash equal to the sum of 100%
      of
      the principal amount thereof plus the Applicable Premium in the case of an
      Asset
      Sale or Casualty Event or the Optional Redemption Premium in the case of a
      Debt
      Issuance, in each case, plus accrued and unpaid interest, if any, and fees
      to
      the purchase date in accordance with the terms of this Section 6.16.
      In the
      event that, pursuant to Section
      7.06
      hereof,
      the Company shall commence an offer to all Noteholders to purchase Notes, it
      shall follow the procedures specified in this Section
      6.16.
      

    
      
         

      

      
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    (b) Excess
      Proceeds Offer.
      Within
      two (2) Business Days following each date on which the Company’s obligation to
      make an Excess Proceeds Offer is triggered, the Company shall send, by overnight
      courier, a notice to each Noteholder stating:

     

    (i) that
      the
      Excess Proceeds Offer is being made pursuant to this Section
      6.16
      or
7.06,
      as
      applicable;

     

    (ii) that
      the
      Company shall purchase the principal amount of Notes required to be purchased
      pursuant to this Section 6.16
      or
Section
      7.06,
      as
      applicable (the “Offer
      Amount”),
      the
      purchase price per Note and the purchase date, which shall be at least 5 but
      no
      more than 10 Business Days from the date on which the Company mails notice
      of
      the Excess Proceeds Offer (the “Excess
      Proceeds Offer Payment Date”);

     

    (iii) that
      any
      Notes not tendered will continue to accrue interest;

     

    (iv) that,
      unless the Company defaults in payment of the Offer Amount on the Excess
      Proceeds Offer Payment Date, all Notes accepted for payment pursuant to the
      Excess Proceeds Offer shall cease to accrue interest after the Excess Proceeds
      Offer Payment Date;

     

    (v) that
      Noteholders electing to have any Notes purchased pursuant to an Excess Proceeds
      Offer shall be required to surrender the Notes, with the form entitled “Option
      of Holder to Elect Purchase” on the reverse of the Notes completed, to the
      Company or its designated agent for such purpose at the address specified in
      the
      notice prior to 5:00 p.m. Eastern Time on the Business Day preceding the Excess
      Proceeds Offer Payment Date;

     

    (vi) that
      Noteholders will be entitled to withdraw their election if the Company or its
      designated agent for such purpose receives, not later than 9:00 a.m. Eastern
      Time on the Excess Proceeds Offer Payment Date, a telegram, telex, facsimile
      transmission or letter setting forth the name of the Noteholder, the principal
      amount of Notes delivered for purchase, and a statement that such Noteholder
      is
      withdrawing his election to have the Notes purchased;

     

    (vii) that,
      if
      the aggregate principal amount of Notes surrendered by Noteholders exceeds
      the
      Offer Amount, the Company shall select the Notes to be purchased on a
pro
      rata
      basis;
      and

     

    (viii) that
      Noteholders whose Notes are being purchased only in part will be issued new
      Notes equal in principal amount to the unpurchased portion of the Notes
      surrendered.

     

    (c)
      On
      the
      Excess Proceeds Offer Payment Date, the Company shall, to the extent lawful,
      (i) accept for payment, on a pro rata
      basis to
      the extent necessary, all Notes or portions thereof properly tendered pursuant
      to the Excess Proceeds Offer up to the principal amount of Notes equal to the
      Offer Amount, or, if less than the Offer Amount has been tendered, all Notes
      tendered, (ii) transmit to each holder of Notes so tendered the purchase
      price (together with the Applicable Premium or Optional Redemption Premium,
      as
      applicable) for such Notes by wire transfer in immediately available funds,
      plus
      all accrued and unpaid interest, if any, and fees to the Excess Proceeds Offer
      Payment Date, (iii) execute and mail to each Noteholder a new Note equal in
      principal amount to any unpurchased portion of the Notes surrendered, if any,
      and (iv) deliver to the Noteholders a statement of a Financial Officer of
      the Company or Holdings stating that such Notes or portions thereof were
      accepted for payment by the Company in accordance with the terms of this
Section 6.16
      or
Section 7.06.
      The
      Company shall inform the Noteholders in writing of the results of the Excess
      Proceeds Offer on or as soon as practicable after the Excess Proceeds Offer
      Payment Date.

    
      
         

      

      
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    SECTION
      6.17 [[Reserved].
      

     

    SECTION
      6.18 Dormant
      Subsidiary.
      The
      Company shall exert commercially reasonable efforts to dispose of its entire
      indirect equity interest in D2K, Inc., a Korean entity in which Digital Domain
      International, Inc. owns a minority interest and of which the Issuers have
      no
      current knowledge.

     

    SECTION
      6.19 Post-Closing
      Covenant.
      

     

    (a) The
      Company shall deliver to the Agent, for the benefit of the Secured Parties
      (in
      each case, unless waived or extended by the Required Holders in their sole
      discretion): 

     

    (i) within
      one (1) Business Day following the Second Closing Date, original stock
      certificates, accompanied by original instruments of transfer and stock powers
      undated and endorsed in blank, representing 100% of the direct or indirect
      interests of any Issuer in the following Subsidiaries of Holdings: The Foundry
      Visionmongers Ltd. and Wyndcrest UK Holdings Limited; 

     

    (ii) within
      three (3) Business Days following the Second Closing Date, a letter from each
      Foundry Seller representing its receipt of payment for its pro rata share of
      the
      Foundry Seller Note Refinancing; and

     

    (iii) within
      two (2) Business Days following the Second Closing Date, control agreements
      perfecting the security interest of the Agent, for the benefit of the Secured
      Parties, in the accounts of all Issuers listed on Schedule
      14
      to the
      Second Closing Date Perfection Certificate (other than the accounts identified
      therein as HSBC Sterling Business, HSBC Sterling Business Money, HSBC US Dollar
      and HSBC Euro).

     

    (b) Holdings
      shall, within thirty (30) calendar days following the Second Closing Date,
      prepare a subscription agreement and related offering documents (the
“Offering
      Documents”)
      relating to the issuance of at least $5,000,000 in Net Cash Proceeds from the
      sale of shares of its Common Stock (the “Offering”),
      which
      Offering Documents shall be in form and substance reasonably satisfactory to
      the
      Noteholders, and Holdings shall use its commercially reasonable efforts to
      consummate such Offering on the terms set forth therein no later than sixty
      (60)
      calendar days following the Second Closing Date.

    
      
         

      

      
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    ARTICLE
      VII

     

    NEGATIVE
      COVENANTS

     

    Each
      Issuer warrants, covenants and agrees with each Purchaser and each Noteholder
      that, from the First Closing Date, or, in the case of Wyndcrest UK and Foundry,
      from the Second Closing Date, until the principal amount (and premium, if any)
      of all Notes, and all interest and other Obligations hereunder in respect
      thereof, shall have been paid in full, no Issuer will, nor will it cause or
      permit any of its Subsidiaries to:

     

    SECTION
      7.01 Indebtedness.
      Incur,
      create, assume or permit to exist, directly or indirectly, any Indebtedness,
      except

     

    (a) Indebtedness
      incurred under this Agreement, the Notes and the Guarantees;

     

    (b) (i) Indebtedness
      of the Company or any Subsidiary outstanding on the First Closing Date and
      listed on Schedule 7.01(b),
      and
      (ii) refinancings or renewals thereof; provided
      that
      (A) any such refinancing Indebtedness is in an aggregate principal amount
      not greater than the aggregate principal amount of the Indebtedness being
      renewed or refinanced, plus
      the
      amount of any premiums required to be paid thereon and reasonable fees and
      expenses associated therewith, (B) such refinancing Indebtedness has a
      later or equal final maturity and longer or equal weighted average life than
      the
      Indebtedness being renewed or refinanced and (C) the covenants, events of
      default, subordination and other provisions thereof (including any guarantees
      thereof) shall be, in the aggregate, no less favorable to the Noteholders than
      those contained in the Indebtedness being renewed or refinanced;

     

    (c) Indebtedness
      of the Company or any of its Subsidiaries or Wyndcrest UK or any of its
      Subsidiaries under Hedging Obligations with respect to interest rates, foreign
      currency exchange rates or commodity prices, in each case not entered into
      for
      speculative purposes; provided
      that if
      such Hedging Obligations relate to interest rates, (i) such Hedging
      Obligations relate to payment obligations on Indebtedness otherwise permitted
      to
      be incurred by the Financing Documents and (ii) the notional principal
      amount of such Hedging Obligations at the time incurred does not exceed the
      principal amount of the Indebtedness to which such Hedging Obligations
      relate;

     

    (d) Indebtedness
      of the Company or any of its Subsidiaries or Wyndcrest UK or any of its
      Subsidiaries permitted by Section 7.04(f);

     

    (e) Indebtedness
      of the Company or any Subsidiary or Wyndcrest UK or any Subsidiary in respect
      of
      Purchase Money Obligations and Capital Lease Obligations and Indebtedness of
      Holdings and Wyndcrest UK in respect of the Foundry Seller Notes (including,
      without limitation, Purchase Money Obligations and Capital Lease Obligations
      in
      existence on the First Closing Date and set forth in Schedule
      7.01(b)),
      and
      refinancings or renewals thereof, in an aggregate amount not to exceed (i)
      the
      greater of (x) $5,000,000 and (y) $6,500,000 less the principal amount of the
      Foundry Seller Notes which is repaid (including by way of the Foundry Seller
      Note Refinancing) following the Foundry Closing Date, at any time outstanding
      prior to a QIPO, or (ii) $7,000,000 at any time outstanding following a
      QIPO;

    
      
         

      

      
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    (f) Indebtedness
      of the Company or any Subsidiary or Wyndcrest UK or any Subsidiary in respect
      of
      bid, performance or surety bonds, workers’ compensation claims, self-insurance
      obligations and bankers acceptances issued for the account of the Company or
      any
      of its Subsidiaries or Wyndcrest UK or any of its Subsidiaries in the ordinary
      course of business, including guarantees or obligations of the Company or any
      of
      its Subsidiaries or Wyndcrest UK or any of its Subsidiaries with respect to
      letters of credit supporting such bid, performance or surety bonds, workers’
compensation claims, self-insurance obligations and bankers acceptances (in
      each
      case other than for an obligation for money borrowed), incurred in the ordinary
      course of business, and specifically including obligations of the Company or
      Foundry under a medical insurance self-insurance arrangement that the Company
      or
      Foundry may elect to put in place after the First Closing Date;

     

    (g) Contingent
      Obligations of the Company or any Subsidiary or Wyndcrest UK or any Subsidiary
      in respect of Indebtedness otherwise permitted under this Section 7.01;

     

    (h) Indebtedness
      of the Company or any Subsidiary or Wyndcrest UK or any Subsidiary arising
      from
      the honoring by a bank or other financial institution of a check, draft or
      similar instrument inadvertently (except in the case of daylight overdrafts)
      drawn against insufficient funds in the ordinary course of business;
provided,
      however,
      that
      such Indebtedness is extinguished within five Business Days of incurrence;
      

     

    (i) Indebtedness
      of the Company or any Subsidiary or Wyndcrest UK or any Subsidiary arising
      in
      connection with endorsement of instruments for deposit in the ordinary course
      of
      business; and

     

    (j) Indebtedness
      of Holdings or Wyndcrest UK under the Foundry Seller Notes until such time
      as
      the Foundry Seller Notes are repaid.

     

    SECTION
      7.02 Liens.
      Create,
      incur, assume or permit to exist, directly or indirectly, any Lien on any
      property now owned or hereafter acquired by it or on any income or revenues
      or
      rights in respect of any thereof, except the following (collectively, the
“Permitted
      Liens”):

     

    (a) inchoate
      Liens for taxes, assessments or governmental charges or levies not yet due
      and
      payable or delinquent and Liens for taxes, assessments or governmental charges
      or levies, which (i) are being contested in good faith by appropriate
      proceedings for which adequate reserves have been established in accordance
      with
      GAAP, which proceedings (or orders entered in connection with such proceedings)
      have the effect of preventing the forfeiture or sale of the property subject
      to
      any such Lien, and (ii) in the case of any such charge or claim which has
      or may become a Lien against any of the Collateral, such Lien and the contest
      thereof shall satisfy the Contested Collateral Lien Conditions;

     

    (b) Liens
      in
      respect of property of the Company or any of its Subsidiaries or Wyndcrest
      UK or
      any of its Subsidiaries imposed by Requirements of Law, which were incurred
      in
      the ordinary course of business and do not secure Indebtedness for borrowed
      money, such as carriers’, warehousemen’s, materialmen’s, landlords’, workmen’s,
      suppliers’, repairmen’s and mechanics’ Liens and other similar Liens arising in
      the ordinary course of business, and (i) which do not in the aggregate
      materially detract from the value of the property of the Company and its
      Subsidiaries or Wyndcrest UK and its Subsidiaries, taken as a whole, and do
      not
      materially impair the use thereof in the operation of the business of the
      Company and its Subsidiaries or Wyndcrest UK and its Subsidiaries, taken as
      a
      whole, (ii) which, if they secure obligations that are then due and unpaid,
      are being contested in good faith by appropriate proceedings for which adequate
      reserves have been established in accordance with GAAP, which proceedings (or
      orders entered in connection with such proceedings) have the effect of
      preventing the forfeiture or sale of the property subject to any such Lien,
      and
      (iii) in the case of any such Lien which has or may become a Lien against
      any of the Collateral, such Lien and the contest thereof shall satisfy the
      Contested Collateral Lien Conditions;

    
      
         

      

      
        -66-

        
          

        

      

      
         

      

    

     

    (c) any
      Lien
      in existence on the First Closing Date and set forth on Schedule 7.02(c)
      and any
      Lien granted as a replacement or substitute therefor; provided
      that any
      such replacement or substitute Lien (i) except as permitted by Section 7.01(b)(ii)(A),
      does
      not secure an aggregate amount of Indebtedness, if any, greater than that
      secured on the First Closing Date and (ii) does not encumber any property
      other than the property subject thereto on the First Closing Date (any such
      Lien, an “Existing
      Lien”);

     

    (d) easements,
      rights-of-way, restrictions (including zoning restrictions), covenants,
      licenses, encroachments, protrusions and other similar charges or encumbrances,
      and minor title deficiencies on or with respect to any Real Property, in each
      case whether now or hereafter in existence, not (i) securing Indebtedness,
      (ii) individually or in the aggregate materially impairing the value or
      marketability of such Real Property or (iii) individually or in the
      aggregate materially interfering with the ordinary conduct of the business
      of
      Holdings and its Subsidiaries at such Real Property;

     

    (e) Liens
      arising out of judgments, attachments or awards not resulting in a Default
      and
      in respect of which Holdings or any applicable Subsidiary shall in good faith
      be
      prosecuting an appeal or proceedings for review in respect of which there shall
      be secured a subsisting stay of execution pending such appeal or proceedings
      and, in the case of any such Lien which has or may become a Lien against any
      of
      the Collateral, such Lien and the contest thereof shall satisfy the Contested
      Collateral Lien Conditions;

     

    (f) Liens
      (other than any Lien imposed by ERISA) (x) imposed by Requirements of Law
      or deposits made in connection therewith in the ordinary course of business
      in
      connection with workers’ compensation, unemployment insurance and other types of
      social security legislation, (y) incurred in the ordinary course of
      business to secure the performance of tenders, statutory obligations (other
      than
      excise taxes), surety, stay, customs and appeal bonds, statutory bonds, bids,
      leases, government contracts, trade contracts, performance and return of money
      bonds and other similar obligations (exclusive of obligations for the payment
      of
      borrowed money) or (z) arising by virtue of deposits made in the ordinary
      course of business to secure liability for premiums to insurance carriers;
      provided
      that
      (i) with respect to clauses (x), (y) and (z) of this
      paragraph (f), such Liens are for amounts not yet due and payable or
      delinquent or, to the extent such amounts are so due and payable, such amounts
      are being contested in good faith by appropriate proceedings for which adequate
      reserves have been established in accordance with GAAP, which proceedings or
      orders entered in connection with such proceedings have the effect of preventing
      the forfeiture or sale of the property subject to any such Lien, (ii) to
      the extent such Liens are not imposed by Requirements of Law, such Liens shall
      in no event encumber any property other than cash and Cash Equivalents,
      (iii) in the case of any such Lien against any of the Collateral, such Lien
      and the contest thereof shall satisfy the Contested Collateral Lien Conditions
      and (iv) the aggregate amount of deposits at any time pursuant to
      clause (y) and clause (z) of this paragraph (f) shall not exceed
      $100,000 in the aggregate;

    
      
         

      

      
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    (g) Leases
      of
      the properties of the Company or any of its Subsidiaries or Wyndcrest UK or
      any
      of its Subsidiaries, in each case entered into in the ordinary course of its
      business so long as such Leases are subordinate in all respects to the Liens
      granted and evidenced by the Security Documents and do not, individually or
      in
      the aggregate, (i) interfere in any material respect with the ordinary
      conduct of the business of the Company or any of its Subsidiaries or Wyndcrest
      UK or any of its Subsidiaries, or (ii) materially impair the use (for its
      intended purposes) or the value of the property subject thereto;

     

    (h) Liens
      arising out of conditional sale, title retention, consignment or similar
      arrangements for the sale of goods entered into by the Company or any of its
      Subsidiaries or Wyndcrest UK or any of its Subsidiaries in the ordinary course
      of business in accordance with the past practices of the Company or any of
      its
      Subsidiaries or Wyndcrest UK or any of its Subsidiaries, as
      applicable;

     

    (i) Liens
      securing Indebtedness incurred pursuant to Section 7.01(e);
      provided
      that any
      such Liens attach only to the property being financed pursuant to such
      Indebtedness and do not encumber any other property of the Company or any of
      its
      Subsidiaries or Wyndcrest UK or any of its Subsidiaries, as
      applicable;

     

    (j) bankers’
      Liens, rights of setoff and other similar Liens existing solely with respect
      to
      cash and Cash Equivalents on deposit in one or more accounts maintained by
      any
      Issuer or any of its Subsidiaries, in each case granted in the ordinary course
      of business in favor of the bank or banks with which such accounts are
      maintained, securing amounts owing to such bank with respect to cash management
      and operating account arrangements, including those involving pooled accounts
      and netting arrangements; provided
      that,
      unless such Liens are non-consensual and arise by operation of law, in no case
      shall any such Liens secure (either directly or indirectly) the repayment of
      any
      Indebtedness;

     

    (k) Liens
      on
      property of a person existing at the time such person is acquired or merged
      with
      or into or consolidated with the Company or any of its Subsidiaries or Wyndcrest
      UK or any of its Subsidiaries to the extent permitted hereunder (and not created
      in anticipation or contemplation thereof); provided
      that
      such Liens do not extend to property not subject to such Liens at the time
      of
      acquisition (other than improvements thereon) and are no more favorable to
      the
      lienholders than such existing Liens;

     

    (l) Liens
      granted pursuant to the Security Documents to secure the
      Obligations;

     

    (m) licenses
      of Intellectual Property granted by the Company or any of its Subsidiaries
      or
      Wyndcrest UK or any of its Subsidiaries in the ordinary course of business
      and
      not interfering in any material respect with the ordinary conduct of business
      of
      the Company and its Subsidiaries or Wyndcrest UK or any of its Subsidiaries,
      as
      applicable;

     

    (n) the
      filing of UCC financing statements solely as a precautionary measure in
      connection with operating leases or consignment of goods; 

     

    (o) Liens
      in
      favor of clients of the Company or Foundry securing their interest in their
      work
      in progress and granted in the ordinary course of business consistent with
      industry practice; and

    
      
         

      

      
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    (p) Liens
      incurred in the ordinary course of business of the Company or any of its
      Subsidiaries or Wyndcrest UK or any of its Subsidiaries with respect to
      obligations that do not in the aggregate exceed (i) $120,000 at any time
      outstanding prior to a QIPO, or (ii) $600,000 at any time outstanding following
      a QIPO, in each case, so long as such Liens, to the extent covering any
      Collateral, are junior to the Liens granted pursuant to the Security
      Documents;

     

    provided,
      however,
      that no
      consensual Liens shall be permitted to exist, directly or indirectly, on any
      Securities Collateral, other than Liens granted pursuant to the Security
      Documents.

     

    SECTION
      7.03 Sale
      and Leaseback Transactions.
      Enter
      into any arrangement, directly or indirectly, with any person whereby it shall
      sell or transfer any property, real or personal, used or useful in its business,
      whether now owned or hereafter acquired, and thereafter rent or lease such
      property or other property which it intends to use for substantially the same
      purpose or purposes as the property being sold or transferred (a “Sale
      and Leaseback Transaction”)
      unless
      (x)(i) the sale of such property is permitted by Section 7.06
      and
      (ii) any Liens arising in connection with its use of such property are
      permitted by Section 7.02,
      or
      (y) such arrangement is entered into in the ordinary course of business and
      consistent with past practices; provided
      that the
      sale component thereof shall be consummated within 90 days of the date from
      which such property was acquired by the applicable Issuer and shall otherwise
      comply with the terms of this Agreement.

     

    SECTION
      7.04 Investment,
      Loan and Advances.
      Directly or indirectly, lend money or credit (by way of guarantee or otherwise)
      or make advances to any person, or purchase or acquire, other than as permitted
      by Section
      7.05
      or
Section
      7.07,
      any
      stock, bonds, notes, debentures or other obligations or securities of, or any
      other interest in, or make any capital contribution to, any other person, or
      purchase or own a futures contract or otherwise become liable for the purchase
      or sale of currency or other commodities at a future date in the nature of
      a
      futures contract (all of the foregoing, collectively, “Investments”),
      except that the following shall be permitted:

     

    (a) Holdings
      and its Subsidiaries may consummate the Transactions in accordance with the
      provisions of the Transaction Documents;

     

    (b) Investments
      outstanding on the First Closing Date and identified on Schedule 7.04(b)
      and
      similar Investments made thereafter to the extent not otherwise prohibited
      by
      this Agreement;

     

    (c) the
      Company and its Subsidiaries and Wyndcrest UK and its Subsidiaries may
      (i) acquire and hold accounts receivables owing to any of them if created
      or acquired in the ordinary course of business and payable or dischargeable
      in
      accordance with customary terms, (ii) invest in, acquire and hold cash and
      Cash Equivalents, (iii) endorse negotiable instruments held for collection
      in the ordinary course of business and (iv) make lease, utility and other
      similar deposits in the ordinary course of business;

     

    (d) Hedging
      Obligations incurred pursuant to Section 7.01(c);

     

    (e) loans
      and
      advances to directors, employees and officers of the Company and its
      Subsidiaries and Wyndcrest UK and its Subsidiaries for bona
      fide
      business
      purposes and to purchase Equity Interests of Holdings, in an aggregate amount
      not to exceed $200,000 at any time outstanding;

    
      
         

      

      
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    (f) Investments
      (i) by Holdings or any of its Subsidiaries in the Company or any Subsidiary
      Guarantor and (ii) by a Subsidiary of the Company that is not a Subsidiary
      Guarantor in any other Subsidiary of the Company that is not a Subsidiary
      Guarantor; provided
      that any
      Investment in the form of a loan or advance shall be evidenced by the
      Intercompany Note and, in the case of a loan or advance by an Issuer, pledged
      by
      such Issuer as Collateral pursuant to the Security Documents;

     

    (g) Investments
      in securities of trade creditors or customers in the ordinary course of business
      received upon foreclosure or pursuant to any plan of reorganization or
      liquidation or similar arrangement upon the bankruptcy or insolvency of such
      trade creditors or customers;

     

    (h) Investments
      made by the Company or any of its Subsidiaries or Wyndcrest UK or any of its
      Subsidiaries as a result of consideration received in connection with an Asset
      Sale made in compliance with Section 7.06;
      and

     

    (i) other
      Investments including, without limitation, joint ventures, in an aggregate
      amount not to exceed (x) $300,000 at any time outstanding prior to a QIPO or
      (y)
      $1,200,000 at any time outstanding following a QIPO.

     

    An
      Investment shall be deemed to be outstanding to the extent not returned in
      the
      same form as the original Investment to the applicable Issuer or Subsidiary
      thereof.

     

    SECTION
      7.05 Mergers
      and Consolidations.
      Wind
      up, liquidate or dissolve its affairs or enter into any transaction of merger
      or
      consolidation (or agree to do any of the foregoing at any future time), except
      that the following shall be permitted:

     

    (a) the
      Transactions as contemplated by the Transaction Documents;

     

    (b) Asset
      Sales and Casualty Events in compliance with Section 7.06;

     

    (c) acquisitions
      in compliance with Section 7.07;

     

    (d) Holdings
      or any of its Subsidiaries may merge or consolidate with or into Holdings,
      the
      Company or any Subsidiary Guarantor (as long as Holdings is the surviving person
      in the case of any merger or consolidation involving Holdings, (x) the Company
      is the surviving person in the case of any other merger or consolidation
      involving the Company, (y) a domestic Subsidiary Guarantor is the surviving
      person in the case of any merger or consolidation involving a domestic
      Subsidiary Guarantor and a foreign Subsidiary Guarantor and (z) a Subsidiary
      Guarantor is the surviving person and is a Wholly Owned Subsidiary of the
      Company in any other case); provided
      that the
      Lien on and security interest in such property granted or to be granted in
      favor
      of the Agent under the Security Documents shall be maintained or created in
      accordance with the provisions of Section 6.10
      or
Section 6.11,
      as
      applicable; provided
      further that
      immediately upon the merger or consolidation of the Company with or into
      Holdings: 

     

    (i) Holdings
      shall expressly assume all the obligations of the Company under this Agreement
      and the other Financing Documents pursuant to documents or instruments in form
      reasonably satisfactory to the Required Holders;

     

    (ii) immediately
      after giving effect to such transaction, no Default or Event of Default shall
      have occurred and be continuing;

    
      
         

      

      
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    (iii) each
      Subsidiary Guarantor shall have confirmed that its Guarantee shall apply to
      Holdings’ assumed obligations under this Agreement and the other Financing
      Documents; 

     

    (iv) Holdings
      shall have delivered to the Agent a certificate of a Responsible Officer and
      a
      written opinion from legal counsel who is acceptable to the Required Holders
      (it
      being understood that each of Sullivan & Triggs, LLP and Bryan Cave LLP are
      acceptable to the Required Holders), each stating that such consolidation or
      merger complies with this Agreement and the other Financing Documents;
      and

     

    (v) Holdings
      shall succeed to, and be substituted for, the Company under this Agreement
      and
      the other Financing Documents; and

     

    (e) any
      Subsidiary of Holdings (other than the Company) may dissolve, liquidate or
      wind
      up its affairs at any time; provided
      that
      such dissolution, liquidation or winding up, as applicable, could not reasonably
      be expected to have a Material Adverse Effect.

     

    SECTION
      7.06 Asset
      Sales, Casualty Events.
      

     

    (a) Effect
      any Asset Sale, or agree to effect any Asset Sale, except that the following
      shall be permitted:

     

    (i) disposition
      of used, worn out, obsolete or surplus property by Holdings or any of its
      Subsidiaries in the ordinary course of business and the abandonment or other
      disposition of Intellectual Property that is, in the reasonable judgment of
      the
      applicable Issuer, no longer economically practicable to maintain or useful
      in
      the conduct of the business of such Issuer and its Subsidiaries taken as a
      whole;

     

    (ii) Asset
      Sales; provided
      that the
      aggregate consideration received in respect of all Asset Sales pursuant to
      this
      clause (ii) shall not exceed (x) $390,000 in any four consecutive fiscal
      quarters of Holdings ending prior to a QIPO, or (y) $1,050,000 in any four
      consecutive fiscal quarters of Holdings following a QIPO;

     

    (iii) leases
      of
      real or personal property in the ordinary course of business and in accordance
      with the applicable Security Documents;

     

    (iv) mergers
      and consolidations in compliance with Section 7.05;
      

     

    (v) Investments
      in compliance with Section 7.04;
      and

     

    (vi) the
      Transactions as contemplated by the Transaction Documents.

     

    (b) Not
      later
      than one Business Day following the receipt of any Net Cash Proceeds of any
      Asset Sale by Holdings or any of its Subsidiaries, the Company shall make an
      offer to repurchase the Notes at a repurchase price equal to 100% of the
      outstanding principal amount thereof, plus the Applicable Premium, plus accrued
      and unpaid interest, if any, and fees in accordance with Section 6.16,
      in an
      aggregate amount equal to 100% of such Net Cash Proceeds; provided
      that:

     

    (i) no
      such
      repurchase shall be required under this Section 7.06,
      with
      respect to (A) any Asset Sale permitted by Section 7.06(a)(i),
      (B) the disposition of property which constitutes a Casualty Event, or
      (C) Asset Sales for fair market value resulting in no more than (x)
      $120,000 in Net Cash Proceeds in any fiscal year ending prior to a QIPO or
      (y)
      $600,000 in Net Cash Proceeds in any fiscal year following a QIPO; provided
      that
      clause (C) shall not apply in the case of any Asset Sale described in
      clause (b) of the definition thereof; and

    
      
         

      

      
        -71-

        
          

        

      

      
         

      

    

     

    (ii) so
      long
      as no Default shall then exist or would arise therefrom and the aggregate of
      such Net Cash Proceeds of Asset Sales shall not exceed $120,000 in any fiscal
      year ending prior to a QIPO or $600,000 in any fiscal year following a QIPO,
      such proceeds shall not be required to be so applied on such date to the extent
      that Holdings shall have delivered an Officers’ Certificate to the Noteholders
      on or prior to such date stating that such Net Cash Proceeds are expected to
      be
      reinvested by the Company or the Subsidiary Guarantor to which such Asset Sale
      relates in fixed or capital assets within 270 days following the date of
      such Asset Sale (which Officer’s Certificate shall set forth the estimates of
      the proceeds to be so expended); provided
      that if
      all or any portion of such Net Cash Proceeds is not so reinvested within such
      270-day period, then the Company shall apply 100% of such unused Net Cash
      Proceeds to make an Excess Proceeds Offer in accordance with this Section
      7.06(b)
      and
Section
      6.16;
      provided,
      further,
      that if
      the properties or assets subject to such Asset Sale constituted Collateral,
      then
      all properties and assets purchased with the Net Cash Proceeds thereof pursuant
      to this subsection shall be made subject to the Lien of the applicable Security
      Documents in favor of the Agent, for its benefit and for the benefit of the
      other Secured Parties in accordance with Sections
      6.10
      and
6.11.

     

    (c) Not
      later
      than one Business Day following the receipt of any Net Cash Proceeds in excess
      of $120,000 if prior to a QIPO, or $600,000 if following a QIPO, from a Casualty
      Event by Holdings or any of its Subsidiaries, the Company shall make an offer
      to
      repurchase the Notes at a repurchase price equal to 100% of the principal amount
      thereof, plus the Applicable Premium, plus accrued and unpaid interest, if
      any,
      and fees in accordance with Section 6.16,
      in an
      aggregate amount equal to 100% of the total amount of such Net Cash Proceeds
      from such Casualty Event; provided
      that so
      long as no Default shall then exist or arise therefrom, such proceeds shall
      not
      be required to be so applied on such date to the extent that Holdings shall
      have
      delivered an Officers’ Certificate to the Agent and the Noteholders on or prior
      to such date stating that such proceeds are expected to be used to repair,
      replace or restore any property in respect of which such Net Cash Proceeds
      were
      paid, no later than 270 days following the date of receipt of such proceeds
      (which Officer’s Certificate shall set forth the estimates of the proceeds to be
      so expended); provided
      that if
      all or any portion of such Net Cash Proceeds is not so applied within such
      270-day period, then the Company shall apply 100% of such unused Net Cash
      Proceeds to make an Excess Proceeds Offer in accordance with this Section
      7.06(c)
      and
Section
      6.16;
      provided
      further
      that if
      the property subject to such Casualty Event constituted Collateral under the
      Security Documents, then all property purchased with the Net Cash Proceeds
      thereof pursuant to this subsection shall be made subject to the Lien of the
      applicable Security Documents in favor of the Agent, for its benefit and for
      the
      benefit of the other Secured Parties in accordance with Sections
      6.10
      and
6.11.

     

    SECTION
      7.07 Acquisitions.
      Purchase or otherwise acquire (in one or a series of related transactions)
      any
      part of the property (whether tangible or intangible) of any person (or agree
      to
      do any of the foregoing at any future time), except that the following shall
      be
      permitted:

     

    (a) Capital
      Expenditures by the Company and its Subsidiaries and Wyndcrest UK and its
      Subsidiaries shall be permitted to the extent permitted by Section
      7.10(d);

     

    (b) purchases
      and other acquisitions of any assets and property in the ordinary course of
      business;

     

    
      
         

      

      
        -72-

        
          

        

      

      
         

      

    

    (c) Investments
      in compliance with Section 7.04;

     

    (d) leases
      of
      real or personal property in the ordinary course of business and in accordance
      with the applicable Security Documents;

     

    (e) the
      Transactions as contemplated by the Transaction Documents;

     

    (f) Permitted
      Acquisitions; and

     

    (g) mergers
      and consolidations in compliance with Section 7.05;

     

    provided
      that the
      Lien on and security interest in such property granted or to be granted in
      favor
      of the Agent under the Security Documents shall be maintained or created in
      accordance with the provisions of Section 6.10
      or
Section 6.11,
      as
      applicable.

     

    SECTION
      7.08 Dividends.
      Authorize, declare or pay, directly or indirectly, any Dividends with respect
      to
      Holdings or any of its Subsidiaries, except that the following shall be
      permitted:

     

    (a) Dividends
      by any Subsidiary of the Company to the Company or any Subsidiary Guarantor
      that
      is a Wholly Owned Subsidiary of the Company, and dividends by any Subsidiary
      of
      Wyndcrest UK to Wyndcrest UK or any Subsidiary Guarantor that is a Wholly Owned
      Subsidiary of Wyndcrest UK;

     

    (b) payments
      to Holdings to permit Holdings, and the subsequent use of such payments by
      Holdings, to repurchase or redeem Qualified Capital Stock of Holdings held
      by
      officers, directors or employees or former officers, directors or employees
      (or
      their transferees, estates or beneficiaries under their estates) of the Company
      or any of its Subsidiaries or Wyndcrest UK or any of its Subsidiaries, upon
      their death, disability, retirement, severance or termination of employment
      or
      service; provided
      that the
      aggregate cash consideration paid for all such redemptions and payments shall
      not exceed, from and after the First Closing Date the sum of $1,000,000,
plus
      the net
      cash proceeds of any “key-man” life insurance policies of the Company or any of
      its Subsidiaries received after the First Closing Date that have not been used
      to make any repurchases, redemptions or payments under this clause (b),
plus
      the net
      cash proceeds of any “key-man” life insurance policies of Wyndcrest UK or any of
      its Subsidiaries received after the Second Closing Date that have not been
      used
      to make any repurchases, redemptions or payments under this clause (b);


     

    (c) (A)
      to
      the extent actually used by Holdings to pay such taxes, costs and expenses,
      payments by the Company, Wyndcrest UK or Foundry to or on behalf of Holdings
      in
      an amount sufficient to pay franchise taxes and other fees required to maintain
      the legal existence of Holdings and (B) payments by the Company, Wyndcrest
      UK or
      Foundry to or on behalf of Holdings in an amount sufficient to pay out of pocket
      legal, insurance, accounting and filing costs and other expenses in the nature
      of overhead in the ordinary course of business of Holdings, provided that the
      aggregate amount of such Dividends under clauses (A) and (B) shall not exceed
      $300,000 in any fiscal year ending prior to the consummation of a QIPO;
      and

     

    (d) Permitted
      Tax Distributions by the Company or Wyndcrest UK to Holdings, so long as
      Holdings uses such distributions to pay its taxes. 

    
      
         

      

      
        -73-

        
          

        

      

      
         

      

    

     

    SECTION
      7.09 Transactions
      with Affiliates.
      Enter
      into, directly or indirectly, any transaction or series of related transactions,
      whether or not in the ordinary course of business, with any Affiliate of
      Holdings or any of its Subsidiaries (other than between or among the Company
      and
      one or more of its Subsidiaries that are Subsidiary Guarantors or between or
      among Wyndcrest UK and one or more of its Subsidiaries that are Subsidiary
      Guarantors), other than on terms and conditions at least as favorable to
      Holdings or such Subsidiary as would reasonably be obtained by Holdings or
      such
      Subsidiary at that time in a comparable arm’s-length transaction with a person
      other than an Affiliate, except that the following shall be
      permitted:

     

    (a) Dividends
      permitted by Section 7.08;

     

    (b) Investments
      permitted by Sections 7.04(e)
      and
(f);

     

    (c) reasonable
      and customary director, officer and employee compensation (including bonuses)
      and other benefits (including retirement, health, stock option and other benefit
      plans) and indemnification arrangements, in each case approved by the Board
      of
      Directors of Holdings or the applicable Subsidiary thereof;

     

    (d) transactions
      with customers, clients, suppliers, joint venture partners or purchasers or
      sellers of goods and services, in each case in the ordinary course of business
      and otherwise not prohibited by the Financing Documents;

     

    (e) the
      existence of, and the performance by Holdings or any of its Subsidiaries of
      its
      obligations under the terms of, any limited liability company, limited
      partnership or other Organizational Document or securityholders agreement
      (including any registration rights agreement or purchase agreement related
      thereto) to which it is a party on the Second Closing Date and which is
      disclosed in Schedule
      7.09(e)
      as in
      effect on the Second Closing Date, and similar agreements that it may enter
      into
      thereafter; provided,
      however,
      that
      the existence of, or the performance by Holdings or any of its Subsidiaries
      of
      obligations under, any amendment to any such existing agreement or any such
      similar agreement entered into after the Second Closing Date shall only be
      permitted by this Section 7.09(e)
      to the
      extent not more adverse to the interest of the Noteholders in any material
      respect, when taken as a whole, than any of such documents and agreements as
      in
      effect on the Second Closing Date;

     

    (f) sales
      of
      Qualified Capital Stock of Holdings to Affiliates of Holdings not otherwise
      prohibited by the Financing Documents and the granting of registration and
      other
      customary rights in connection therewith; and

     

    (g) the
      Transactions as contemplated by the Transaction Documents.

     

    SECTION
      7.10 Financial
      Covenants.

     

    (a) Maximum
      Total Leverage Ratio.
      Permit
      the Total Leverage Ratio, as of the last day of any Test Period set forth in
      the
      table below, to exceed the ratio set forth opposite such period (i) in
      Column (X) of the table below if Qualified Cash is at least $20,000,000
      (the “Minimum
      Qualified Cash Requirement”) as
      of the
      last day of the applicable Test Period or (ii) in Column (Y) of the
      table below if the Minimum Qualified Cash Requirement is not satisfied as of
      the
      last day of the applicable Test Period:

    
      
         

      

      
        -74-

        
          

        

      

      
         

      

    

     

    
      	
              Period

            	 	
              (X)

              Minimum
                Qualified Cash 

              Requirement
                

              Satisfied

              Leverage
                Ratio

            	 	
              (Y)

              Minimum
                Qualified Cash 

              Requirement
                

              Not
                Satisfied

              Leverage
                Ratio

            
	
              Test
                Period Ending September 30, 2008

            	 	
              3.30
                to 1.0

            	 	
              2.50
                to 1.0

            
	
              Test
                Period Ending December 31, 2008

            	 	
              3.00
                to 1.0

            	 	
              2.30
                to 1.0

            
	
              Test
                Period Ending March 31, 2009

            	 	
              2.90
                to 1.0

            	 	
              2.20
                to 1.0

            
	
              Test
                Period Ending June 30, 2009

            	 	
              2.90
                to 1.0

            	 	
              2.20
                to 1.0

            
	
              Test
                Period Ending September 30, 2009

            	 	
              2.80
                to 1.0

            	 	
              2.20
                to 1.0

            
	
              Test
                Period Ending December 31, 2009

            	 	
              2.80
                to 1.0

            	 	
              2.10
                to 1.0

            
	
              Test
                Period Ending March 31, 2010

            	 	
              2.70
                to 1.0

            	 	
              2.10
                to 1.0

            
	
              Test
                Period Ending June 30, 2010

            	 	
              2.60
                to 1.0

            	 	
              2.00
                to 1.0

            
	
              Test
                Period Ending September 30, 2010

            	 	
              2.60
                to 1.0

            	 	
              2.00
                to 1.0

            
	
              Test
                Period Ending December 31, 2010

            	 	
              2.60
                to 1.0

            	 	
              2.00
                to 1.0

            
	
              Test
                Period Ending March 31, 2011

            	 	
              2.50
                to 1.0

            	 	
              1.90
                to 1.0

            
	
              Test
                Period Ending June 30, 2011

            	 	
              2.50
                to 1.0

            	 	
              1.90
                to 1.0

            
	
              Test
                Period Ending on the Stated Maturity
                Date

            	 	
              2.50
                to 1.0

            	 	
              1.90
                to 1.0

            


    

    


    (b) Minimum
      Qualified Cash.
      Permit
      Qualified Cash of Holdings as of any date set forth below to be less than the
      amount set forth opposite such date below:

     

    
      	
              Date

            	 	
              Qualified
                Cash

              (in
                millions)

            	 
	
              June
                30, 2006

            	 	
              $

            	
              9,000,000

            	 
	
              July
                31, 2006

            	 	
              $

            	
              9,000,000

            	 
	
              August
                31, 2006

            	 	
              $

            	
              9,000,000

            	 


    

    
      	
              September
                30, 2006

            	 	
              $

            	
              9,000,000

            	 
	
              October
                31, 2006

            	 	
              $

            	
              9,000,000

            	 
	
              November
                30, 2006

            	 	
              $

            	
              9,000,000

            	 
	
              December
                31, 2006

            	 	
              $

            	
              9,000,000

            	 
	
              January
                31, 2007

            	 	
              $

            	
              9,000,000

            	 
	
              February
                28, 2007

            	 	
              $

            	
              9,000,000

            	 


    

    
       

      
        
           

        

        
          -75-

          
            

          

        

        
           

        

      

       

      
        	 

                Date

              	 	
                Qualified
                  Cash

                (in
                  millions)

              	 


      

    

    
      	
              March
                31, 2007

            	 	
              $

            	
              9,000,000

            	 
	
              April
                30, 2007

            	 	
              $

            	
              9,000,000

            	 
	
              May
                31, 2007

            	 	
              $

            	
              9,000,000

            	 
	
              June
                30, 2007

            	 	
              $

            	
              9,000,000

            	 
	
              July
                31, 2007

            	 	
              $

            	
              10,000,000

            	 
	
              August
                31, 2007

            	 	
              $

            	
              10,000,000

            	 
	
              September
                30, 2007

            	 	
              $

            	
              10,000,000

            	 
	
              October
                31, 2007

            	 	
              $

            	
              10,000,000

            	 
	
              November
                30, 2007

            	 	
              $

            	
              10,000,000

            	 
	
              December
                31, 2007

            	 	
              $

            	
              10,000,000

            	 
	
              January
                31, 2008

            	 	
              $

            	
              10,000,000

            	 
	
              February
                28, 2008

            	 	
              $

            	
              10,000,000

            	 
	
              March
                31, 2008

            	 	
              $

            	
              10,000,000

            	 
	
              April
                30, 2008

            	 	
              $

            	
              10,000,000

            	 
	
              May
                31, 2008

            	 	
              $

            	
              10,000,000

            	 
	
              June
                30, 2008

            	 	
              $

            	
              10,000,000

            	 


    

     

    ;
      provided
      that for
      so long as any Foundry Seller Notes shall remain outstanding as of any date
      of
      determination, the required minimum amount of Qualified Cash set forth above
      at
      such date of determination shall be increased by $1,000,000.

     

     

    (c) Minimum
      Fixed Charge Coverage Ratio.
      Permit
      the Consolidated Fixed Charge Coverage Ratio, as of the last day of any Test
      Period set forth in the table below, to be less than the ratio set forth
      opposite such period (i) in Column (X) of the table below if the Minimum
      Qualified Cash Requirement is satisfied as of the last day of the applicable
      Test Period or (ii) in Column (Y) of the table below if the Minimum Qualified
      Cash Requirement is not satisfied as of the last day of the applicable Test
      Period:

    
      
         

      

      
        -76-

        
          

        

      

      
         

      

    

     

    
      	
              Period

            	 	
              (X)

              Minimum
                Qualified Cash 

              Requirement
                

              Satisfied

              Fixed
                Charge 

              Coverage
                Ratio

            	 	
              (Y)

              Minimum
                Qualified Cash 

              Requirement
                

              Not
                Satisfied

              Fixed
                Charge 

              Coverage
                Ratio

            
	
              Test
                Period Ending September 30, 2008

            	 	
              0.40
                to 1.0

            	 	
              0.60
                to 1.0

            
	
              Test
                Period Ending December 31, 2008

            	 	
              0.50
                to 1.0

            	 	
              0.90
                to 1.0

            
	
              Test
                Period Ending March 31, 2009

            	 	
              0.60
                to 1.0

            	 	
              1.00
                to 1.0

            
	
              Test
                Period Ending June 30, 2009

            	 	
              0.70
                to 1.0

            	 	
              1.10
                to 1.0

            
	
              Test
                Period Ending September 30, 2009

            	 	
              0.70
                to 1.0

            	 	
              1.20
                to 1.0

            
	
              Test
                Period Ending December 31, 2009

            	 	
              0.70
                to 1.0

            	 	
              1.20
                to 1.0

            
	
              Test
                Period Ending March 31, 2010

            	 	
              0.80
                to 1.0

            	 	
              1.30
                to 1.0

            
	
              Test
                Period Ending June 30, 2010

            	 	
              0.80
                to 1.0

            	 	
              1.40
                to 1.0

            
	
              Test
                Period Ending September 30, 2010

            	 	
              0.90
                to 1.0

            	 	
              1.50
                to 1.0

            
	
              Test
                Period Ending December 31, 2010

            	 	
              0.90
                to 1.0

            	 	
              1.50
                to 1.0

            
	
              Test
                Period Ending March 31, 2011

            	 	
              0.90
                to 1.0

            	 	
              1.60
                to 1.0

            
	
              Test
                Period Ending June 30, 2011

            	 	
              1.00
                to 1.0

            	 	
              1.70
                to 1.0

            
	
              Test
                Period Ending on the Stated Maturity
                Date

            	 	
              1.00
                to 1.0

            	 	
              1.70
                to 1.0

            


    

    


    (d) Limitation
      on Capital Expenditures.
      Permit
      the aggregate amount of Capital Expenditures made in any fiscal year commencing
      with the fiscal year ending December 31, 2006, to exceed the sum of (i) (x)
      $5,050,000 in any fiscal year ending prior to a QIPO and (y) $7,050,000 in
      any
      fiscal year following a QIPO and (ii) the Net Cash Proceeds from the sale of
      Common Stock occurring after the First Closing Date and contributed to the
      common equity capital of Holdings or any of its Subsidiaries, to the extent
      reserved for Capital Expenditures and not yet applied towards Capital
      Expenditures; provided
      that,
      notwithstanding the limitations set forth in clauses (x) and (y) of this
Section
      7.10(d),
      an
      amount equal to the Second Closing Purchase Price minus
      the
      aggregate amount of Foundry Seller Notes outstanding immediately prior to the
      Second Closing Date (it being understood that the amount of such difference
      shall not exceed $2,000,000) may be utilized for Capital Expenditures by
      Holdings or any of its Subsidiaries.

     

    SECTION
      7.11 Prepayments
      of Other Indebtedness; Modifications of Organizational Documents and Other
      Documents, etc. Directly
      or indirectly:

     

    (a) make
      (or
      give any notice in respect thereof) any voluntary or optional payment or
      prepayment on or redemption or acquisition for value of, or any prepayment
      or
      redemption as a result of any asset sale, change of control or similar event
      of,
      any Subordinated Indebtedness;

     

    (b) amend
      or
      modify, or permit the amendment or modification of, any provision of any
      Transaction Document or any document governing any Material Indebtedness in
      any
      manner that is adverse in any material respect to the interests of the
      Noteholders; or

     

    (c) terminate,
      amend or modify any of its Organizational Documents (including (x) by the filing
      or modification of any certificate of designation and (y) any election to treat
      any Pledged Securities (as defined in the Security Agreement) as a “security”
under Section 8-103 of the UCC other than concurrently with the delivery of
      certificates representing such Pledged Securities to the Agent) or any agreement
      to which it is a party with respect to its Equity Interests (including any
      stockholders’ agreement), or enter into any new agreement with respect to its
      Equity Interests, other than any such amendments or modifications or such new
      agreements which are not adverse in any material respect to the interests of
      the
      Noteholders; provided
      that
      Holdings may issue such Equity Interests, so long as such issuance is not
      prohibited by Section 7.13
      or any
      other provision of this Agreement, and may amend or modify its Organizational
      Documents to authorize any such Equity Interests.

    
      
         

      

      
        -77-

        
          

        

      

      
         

      

    

     

    SECTION
      7.12 Limitation
      on Certain Restrictions on Subsidiaries.
      Directly or indirectly, create or otherwise cause or suffer to exist or become
      effective any encumbrance or restriction on the ability of any Subsidiary of
      the
      Company to (a) pay dividends or make any other distributions on its capital
      stock or any other interest or participation in its profits owned by the Company
      or any of its Subsidiaries, or pay any Indebtedness owed to the Company or
      a
      Subsidiary, (b) make loans or advances to the Company or any of its
      Subsidiaries or (c) transfer any of its properties to the Company or any of
      its Subsidiaries, except for such encumbrances or restrictions existing under
      or
      by reason of (i) applicable Requirements of Law; (ii) this Agreement
      and the other Financing Documents; (iii) customary provisions restricting
      subletting or assignment of any lease governing a leasehold interest of a
      Subsidiary; (iv) customary provisions restricting assignment of any
      agreement entered into by a Subsidiary in the ordinary course of business;
      (v) any holder of a Lien permitted by Section 7.02
      restricting the transfer of the property subject thereto; (vi) customary
      restrictions and conditions contained in any agreement relating to the sale
      of
      any property permitted under Section 7.06
      pending
      the consummation of such sale; (vii) any agreement in effect at the time
      such Subsidiary becomes a Subsidiary of the Company or Wyndcrest UK, so long
      as
      such agreement was not entered into in connection with or in contemplation
      of
      such person becoming a Subsidiary of the Company or Wyndcrest UK; (viii) without
      affecting the Issuers’ obligations under Section 6.11,
      customary provisions in partnership agreements, limited liability company
      organizational governance documents, asset sale and stock sale agreements and
      other similar agreements entered into in the ordinary course of business that
      restrict the transfer of ownership interests in such partnership, limited
      liability company or similar person; (ix) restrictions on cash or other deposits
      or net worth imposed by suppliers or landlords under contracts entered into
      in
      the ordinary course of business; (x) any instrument governing Indebtedness
      assumed in connection with any Permitted Acquisition, which encumbrance or
      restriction is not applicable to any person, or the properties or assets of
      any
      person, other than the person or the properties or assets of the person so
      acquired; (xi) in the case of any joint venture which is not an Issuer in
      respect of any matters referred to in clauses (b) and (c) above,
      restrictions in such person’s Organizational Documents or pursuant to any joint
      venture agreement or stockholders agreements solely to the extent of the Equity
      Interests of or property held in the subject joint venture or other entity;
      or
      (xii) any encumbrances or restrictions imposed by any amendments or
      refinancings that are otherwise permitted by the Financing Documents or the
      agreements referred to in clause (vii) above; provided
      that
      such amendments or refinancings are no more materially restrictive with respect
      to such encumbrances and restrictions than those prior to such amendment or
      refinancing.

     

    SECTION
      7.13 Limitation
      on Issuance of Capital Stock.

     

    (a) With
      respect to Holdings, issue any Equity Interest that is not Qualified Capital
      Stock.

     

    (b) With
      respect to the Company or any of its Subsidiaries or Wyndcrest UK or any of
      its
      Subsidiaries, issue any Equity Interest (including by way of sales of treasury
      stock) or any options or warrants to purchase, or securities convertible into,
      any Equity Interest, except (i) for stock splits, stock dividends and
      additional issuances of Equity Interests which do not decrease the percentage
      ownership of Holdings or any of its Subsidiaries in any class of the Equity
      Interest of such Issuer; (ii) that Subsidiaries of the Company formed after
      the First Closing Date in accordance with Section 7.14
      may
      issue Equity Interests to the Company or the Subsidiary of the Company which
      is
      to own such Equity Interests, and that Subsidiaries of Wyndcrest UK formed
      after
      the Second Closing Date in accordance with Section
      7.14
      may
      issue Equity Interests to Wyndcrest UK or the Subsidiary of Wyndcrest UK which
      is to own such Equity Interests; and (iii) that the Company or Wyndcrest UK
      may issue common stock that is Qualified Capital Stock to Holdings and may
      fulfill its obligations to issue Common Stock under employee stock options
      outstanding on the Second Closing Date. All Equity Interests issued in
      accordance with this Section 7.13(b)
      shall,
      to the extent required by Sections 6.10
      and
6.11
      or any
      Security Document, be delivered to the Agent for pledge pursuant to the
      applicable Security Document.

    
      
         

      

      
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    SECTION
      7.14 Limitation
      on Creation of Subsidiaries.
      Establish, create or acquire any additional Subsidiaries without the prior
      written consent of the Required Holders; provided
      that,
      without such consent, (A) Holdings may establish or create Wyndcrest UK as
      a Wholly Owned Subsidiary of Holdings; and (B) the Company or Wyndcrest UK
      may (i) establish or create one or more Wholly Owned Subsidiaries of the
      Company or Wyndcrest UK, (ii) establish, create or acquire one or more
      Subsidiaries in connection with an Investment made pursuant to Section 7.04(f),
      (iii) in the case of the Company only after the Second Closing Date,
      acquire one or more Subsidiaries in connection with a Permitted Acquisition,
      so
      long as, in each case, Section 6.10(b),
      if
      applicable, shall be complied with, or (iv) provided that such Investment
      shall be permitted under Section 7.04(i),
      establish or create one or more joint ventures with co-producers or
      co-developers of entertainment properties, consistent with industry
      practice.

     

    SECTION
      7.15 Business.
      

     

    (a) With
      respect to Holdings, engage in any business activities or have any properties
      or
      liabilities, other than (i) its ownership of the Equity Interests of the Company
      and Wyndcrest UK, (ii) obligations under the Financing Documents, Foundry Seller
      Notes and Foundry Acquisition Documents and (iii) activities and properties
      incidental to the foregoing clauses (i) and (ii).

     

    (b) With
      respect to the Company and its Subsidiaries and Wyndcrest UK and its
      Subsidiaries, engage (directly or indirectly) in any business other than those
      businesses in which the Company and its Subsidiaries and Wyndcrest UK and its
      Subsidiaries are engaged on the Second Closing Date (or, in the good faith
      judgment of the Board of Directors thereof, which are substantially related
      thereto or are reasonable extensions thereof, including, without limitation,
      the
      development, production, distribution and exploitation of filmed entertainment,
      video games and media, digital and interactive content and
      technology).

     

    SECTION
      7.16 Limitation
      on Accounting Changes.
      Make or
      permit any change in accounting policies or reporting practices, without the
      consent of the Required Holders, which consent shall not be unreasonably
      withheld, except changes that are (i) consistent with GAAP or (ii) following
      a
      QIPO, required by the rules and regulations of the Commission.

     

    SECTION
      7.17 Fiscal
      Year.
      Change
      its fiscal year-end to a date other than December 31.

     

    SECTION
      7.18 Lease
      Obligations.
      Create,
      incur, assume or suffer to exist any obligations as lessee (other than pursuant
      to Capital Leases) for the rental or hire of real or personal property of any
      kind under leases or agreements to lease having an original term of one year
      or
      more that would cause the direct and contingent liabilities of Holdings and
      its
      Subsidiaries, on a consolidated basis, in respect of all such obligations to
      exceed (i) $3,000,000 payable in any period of 12 consecutive months ending
      prior to a QIPO or (ii) $4,000,000 payable in any period of 12 consecutive
      months following a QIPO.

    
      
         

      

      
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    SECTION
      7.19 No
      Further Negative Pledge.
      Enter
      into any agreement, instrument, deed or lease which prohibits or limits the
      ability of any Issuer to create, incur, assume or suffer to exist any Lien
      upon
      any of its properties or revenues, whether now owned or hereafter acquired,
      or
      which requires the grant of any security for an obligation if security is
      granted for another obligation, except the following: (1) this Agreement
      and the other Financing Documents; (2) covenants in documents creating
      Liens permitted by Section 7.02
      prohibiting further Liens on the properties encumbered thereby; (3) any
      other agreement that does not restrict in any manner (directly or indirectly)
      Liens created pursuant to the Financing Documents on any Collateral securing
      the
      Obligations and does not require the direct or indirect granting of any Lien
      securing any Indebtedness or other obligation by virtue of the granting of
      Liens
      on or pledge of property of any Issuer to secure the Obligations; and
      (4) any prohibition or limitation that (a) exists pursuant to
      applicable Requirements of Law, (b) consists of customary restrictions and
      conditions contained in any agreement relating to the sale of any property
      permitted under Section 7.06
      pending
      the consummation of such sale, (c) restricts subletting or assignment of
      any lease governing a leasehold interest of the Company or a Subsidiary or
      Wyndcrest UK or a Subsidiary, (d) exists in any agreement in effect at the
      time a Subsidiary becomes a Subsidiary of the Company or Wyndcrest UK, so long
      as such agreement was not entered into in contemplation of such person becoming
      a Subsidiary or (e) is imposed by any amendments or refinancings that are
      otherwise permitted by the Financing Documents of the agreements referred to
      in
      clause (4)(d); provided
      that
      such amendments and refinancings are no more materially restrictive with respect
      to such prohibitions and limitations than those prior to such amendment or
      refinancing.

     

    SECTION
      7.20 Stay,
      Extension and Usury Laws.
      Plead,
      or in any manner whatsoever claim or take the benefit or advantage of, any
      stay,
      extension or usury law or other law wherever enacted, now or at any time
      hereafter in force, that may affect the covenants or the performance of its
      obligations under the Notes, the Guarantees or this Agreement, and each Issuer
      hereby expressly waives all benefit or advantage of any such law, and covenants
      that it shall not, by resort to any such law, hinder, delay or impede the
      execution of any power herein granted to the Noteholders, but shall suffer
      and
      permit the execution of every such power as though no such law has been
      enacted.

     

    SECTION
      7.21 Payments
      for Consents.
      Pay or
      cause to be paid any consideration, whether by way of interest, fee or
      otherwise, to any Noteholder in consideration for or as an inducement to any
      consent, waiver or amendment of any of the terms or provisions of this Agreement
      or the Notes unless such consideration is concurrently offered to be paid or
      is
      concurrently paid to all Noteholders that consent, waive or agree to amend
      in
      the time frame set forth in the solicitation documents relating to such consent,
      waiver or agreement.

     

    SECTION
      7.22 Limitation
      on Repurchases and Other Repayments of Notes.
      Prepay,
      repurchase, redeem or otherwise acquire or retire (and shall not permit any
      Affiliate to), in whole or in part, directly or indirectly, any Notes held
      by
      any Noteholder unless the Company shall have offered to prepay, repurchase,
      redeem or otherwise acquire or retire, as the case may be, the same proportion
      of the aggregate principal amount of the Notes held by each other Noteholder
      at
      the time outstanding upon the same terms and conditions.

     

    SECTION
      7.23 No
      Integration.
      Make
      any offer or sale of securities of any class of any Issuer if, as a result
      of
      the doctrine of “integration” referred to in Rule 502 under the Securities Act,
      such offer or sale would render invalid (for the purpose of the sale of the
      Notes to the Purchasers) any applicable exemption from the registration
      requirements of the Securities Act provided by Section 4(2) thereof or by Rule
      144A or Regulation S or otherwise.

    
      
         

      

      
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    ARTICLE
      VIII

     

    GUARANTEE

     

    SECTION
      8.01 The
      Guarantee.
      The
      Guarantors hereby jointly and severally guarantee, as a primary obligor and
      not
      as a surety to each Secured Party and their respective successors and assigns,
      the prompt payment in full when due (whether at the Stated Maturity Date, by
      required prepayment, declaration, demand, by acceleration or otherwise) of
      the
      principal of, premium, if any, and interest (including any interest, fees,
      costs
      or charges that would accrue but for the provisions of Title 11 of the United
      States Code after any bankruptcy or insolvency petition under Title 11 of the
      United States Code) on the Notes held by each Noteholder and all other
      Obligations from time to time owing to the Secured Parties by any Issuer under
      any Financing Document in accordance with the terms thereof (such obligations
      being herein collectively called the “Guaranteed
      Obligations”).
      The
      Guarantors hereby jointly and severally agree that if the Company or other
      Guarantor(s) shall fail to pay in full when due (whether at the Stated Maturity
      Date, by acceleration or otherwise) any of the Guaranteed Obligations, the
      Guarantors will promptly pay the same in cash, without any demand or notice
      whatsoever, and that in the case of any extension of time of payment or renewal
      of any of the Guaranteed Obligations, the same will be promptly paid in full
      when due (whether at extended maturity, by acceleration or otherwise) in
      accordance with the terms of such extension or renewal.

     

    SECTION
      8.02 Obligations
      Unconditional.
      The
      obligations of the Guarantors under Section 8.01
      shall
      constitute a guaranty of payment and to the fullest extent permitted by
      applicable Requirements of Law, are absolute, irrevocable and unconditional,
      joint and several, irrespective of the value, genuineness, validity, regularity
      or enforceability of the Guaranteed Obligations of the Company under this
      Agreement, the Notes or any other agreement or instrument referred to herein
      or
      therein, or any substitution, release or exchange of any other guarantee of
      or
      security for any of the Guaranteed Obligations, and, irrespective of any other
      circumstance whatsoever that might otherwise constitute a legal or equitable
      discharge or defense of a surety or guarantor (except for payment in full).
      Without limiting the generality of the foregoing, it is agreed that the
      occurrence of any one or more of the following shall not alter or impair the
      liability of the Guarantors hereunder which shall remain absolute, irrevocable
      and unconditional under any and all circumstances as described
      above:

     

    (i) at
      any
      time or from time to time, without notice to the Guarantors, the time for any
      performance of or compliance with any of the Guaranteed Obligations shall be
      extended, or such performance or compliance shall be waived;

     

    (ii) any
      of
      the acts mentioned in any of the provisions of this Agreement or the Notes,
      if
      any, or any other agreement or instrument referred to herein or therein shall
      be
      done or omitted;

     

    (iii) the
      maturity of any of the Guaranteed Obligations shall be accelerated, or any
      of
      the Guaranteed Obligations shall be amended in any respect, or any right under
      the Financing Documents or any other agreement or instrument referred to herein
      or therein shall be amended or waived in any respect or any other guarantee
      of
      any of the Guaranteed Obligations or any security therefor shall be released
      or
      exchanged in whole or in part or otherwise dealt with; 

    
      
         

      

      
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    (iv) any
      Lien
      or security interest granted to, or in favor of, any Noteholder or Agent as
      security for any of the Guaranteed Obligations shall fail to be perfected;
      or


     

    (v) the
      release of any other Guarantor pursuant to Section 8.09.

     

    The
      Guarantors hereby expressly waive diligence, presentment, demand of payment,
      protest and all notices whatsoever, and any requirement that any Secured Party
      exhaust any right, power or remedy or proceed against the Company under this
      Agreement or the Notes, if any, or any other agreement or instrument referred
      to
      herein or therein, or against any other person under any other guarantee of,
      or
      security for, any of the Guaranteed Obligations. The Guarantors waive any and
      all notice of the creation, renewal, extension, waiver, termination or accrual
      of any of the Guaranteed Obligations and notice of or proof of reliance by
      any
      Secured Party upon this Guarantee or acceptance of this Guarantee, and the
      Guaranteed Obligations, and any of them, shall conclusively be deemed to have
      been created, contracted or incurred in reliance upon this Guarantee, and all
      dealings between the Company and the Secured Parties shall likewise be
      conclusively presumed to have been had or consummated in reliance upon this
      Guarantee. This Guarantee shall be construed as a continuing, absolute,
      irrevocable and unconditional guarantee of payment without regard to any right
      of offset with respect to the Guaranteed Obligations at any time or from time
      to
      time held by Secured Parties, and the obligations and liabilities of the
      Guarantors hereunder shall not be conditioned or contingent upon the pursuit
      by
      the Secured Parties or any other person at any time of any right or remedy
      against the Company or against any other person which may be or become liable
      in
      respect of all or any part of the Guaranteed Obligations or against any
      collateral security or guarantee therefor or right of offset with respect
      thereto. This Guarantee shall remain in full force and effect and be binding
      in
      accordance with and to the extent of its terms upon the Guarantors and the
      successors and assigns thereof, and shall inure to the benefit of the
      Purchasers, and their respective successors and assigns, notwithstanding that
      from time to time during the term of this Agreement there may be no Guaranteed
      Obligations outstanding.

     

    SECTION
      8.03 Reinstatement.
      The
      obligations of the Guarantors under this Article VIII
      shall be
      automatically reinstated if and to the extent that for any reason any payment
      by
      or on behalf of the Company or other Issuer in respect of the Guaranteed
      Obligations is rescinded or must be otherwise restored by any holder of any
      of
      the Guaranteed Obligations, whether as a result of any proceedings in bankruptcy
      or reorganization or otherwise.

     

    SECTION
      8.04 Subrogation;
      Subordination.
      Each
      Guarantor hereby agrees that until the indefeasible payment and satisfaction
      in
      full in cash of all Guaranteed Obligations it shall waive any claim and shall
      not exercise any right or remedy, direct or indirect, arising by reason of
      any
      performance by it of its guarantee in Section 8.01,
      whether
      by subrogation or otherwise, against the Company or any other Guarantor of
      any
      of the Guaranteed Obligations or any security for any of the Guaranteed
      Obligations. Any Indebtedness of any Issuer permitted pursuant to Section 7.01(d)
      shall be
      subordinated to such Issuer’s Obligations in the manner set forth in the
      Intercompany Note evidencing such Indebtedness.

     

    SECTION
      8.05 Remedies.
      The
      Guarantors jointly and severally agree that, as between the Guarantors and
      the
      Noteholders, the obligations of the Company under this Agreement and the Notes,
      if any, may be declared to be forthwith due and payable as provided in
Article
      IX
      (and
      shall be deemed to have become automatically due and payable in the
      circumstances provided in Article
      IX)
      for
      purposes of Section 8.01,
      notwithstanding any stay, injunction or other prohibition preventing such
      declaration (or such obligations from becoming automatically due and payable)
      as
      against the Company and that, in the event of such declaration (or such
      obligations being deemed to have become automatically due and payable), such
      obligations (whether or not due and payable by the Company) shall forthwith
      become due and payable by the Guarantors for purposes of Section 8.01.

    
      
         

      

      
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    SECTION
      8.06 Instrument
      for the Payment of Money.
      Each
      Guarantor hereby acknowledges that the guarantee in this Article VIII
      constitutes an instrument for the payment of money, and consents and agrees
      that
      any Noteholder, at its sole option, in the event of a dispute by such Guarantor
      as to the payment of any moneys due hereunder, shall have the right to bring
      a
      motion-action under New York CPLR Section 3213.

     

    SECTION
      8.07 Continuing
      Guarantee.
      The
      guarantee in this Article VIII
      is a
      continuing guarantee of payment, and shall apply to all Guaranteed Obligations
      whenever arising.

     

    SECTION
      8.08 General
      Limitation on Guarantee Obligations.
      In any
      action or proceeding involving any state corporate, limited partnership or
      limited liability company law, or any applicable state, federal or foreign
      bankruptcy, insolvency, reorganization or other law affecting the rights of
      creditors generally, if the obligations of any Guarantor under Section 8.01
      would
      otherwise be held or determined to be void, voidable, invalid or unenforceable,
      or subordinated to the claims of any other creditors, on account of the amount
      of its liability under Section 8.01,
      then,
      notwithstanding any other provision to the contrary, the amount of such
      liability shall, without any further action by such Guarantor, any Issuer or
      any
      other person, be automatically limited and reduced to the highest amount (after
      giving effect to the right of contribution established in Section
      8.10)
      that is
      valid and enforceable and not subordinated to the claims of other creditors
      as
      determined in such action or proceeding.

     

    SECTION
      8.09 Release
      of Guarantors.
      If, in
      compliance with the terms and provisions of the Financing Documents, all of
      the
      Equity Interests or property of any Subsidiary Guarantor are sold or otherwise
      transferred (a “Transferred
      Subsidiary Guarantor”)
      to a
      person or persons, none of which is Holdings or any of its Subsidiaries, such
      Transferred Subsidiary Guarantor shall, upon the consummation of such sale
      or
      transfer, be automatically released from its obligations under this Agreement
      (including under Section 14.03
      hereof)
      and its obligations to pledge and grant any Collateral owned by it pursuant
      to
      any Security Document and, in the case of a sale of all or substantially all
      of
      the Equity Interests of the Transferred Subsidiary Guarantor, the pledge of
      such
      Equity Interests to the Agent pursuant to the Security Documents shall be
      automatically released, and the Agent shall take such actions as are necessary
      to effect each release described in this Section 8.09
      in
      accordance with the relevant provisions of the Security Documents, so long
      as
      the Company shall have provided the Agent such certifications or documents
      as
      the Agent shall reasonably request in order to demonstrate compliance with
      this
      Agreement.

     

    SECTION
      8.10 Right
      of Contribution.
      Each
      Subsidiary Guarantor hereby agrees that to the extent that a Subsidiary
      Guarantor shall have paid more than its proportionate share of any payment
      made
      hereunder, such Subsidiary Guarantor shall be entitled to seek and receive
      contribution from and against any other Subsidiary Guarantor hereunder which
      has
      not paid its proportionate share of such payment. Each Subsidiary Guarantor’s
      right of contribution shall be subject to the terms and conditions of
Section
      8.04.
      The
      provisions of this Section
      8.10
      shall in
      no respect limit the obligations and liabilities of any Subsidiary Guarantor
      to
      the Agent and the Noteholders, and each Subsidiary Guarantor shall remain liable
      to the Agent and the Noteholders for the full amount guaranteed by such
      Subsidiary Guarantor hereunder.

    
      
         

      

      
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    ARTICLE
      IX

     

    EVENTS
      OF DEFAULT

     

    SECTION
      9.01 Events
      of Default.
      Upon
      the occurrence and during the continuance of the following events (“Events
      of Default”):

     

    (a) default
      shall be made in the payment of any principal, or premium, if any, on any Notes
      when and as the same shall become due and payable, whether at the due date
      thereof or at a date fixed for repurchase thereof or by acceleration thereof
      or
      otherwise;

     

    (b) default
      shall be made in the payment of any interest on any Note or any fee or any
      other
      amount (other than an amount referred to in paragraph (a) above) due under
      any Financing Document, when and as the same shall become due and payable,
      and
      such default shall continue unremedied for a period of five (5) Business
      Days;

     

    (c) any
      representation or warranty made or deemed made in or in connection with any
      Financing Document or any representation, warranty, statement or information
      contained in any report, certificate, financial statement or other instrument
      furnished in connection with or pursuant to any Financing Document, shall prove
      to have been false or misleading in any material respect when so made, deemed
      made or furnished;

     

    (d) default
      shall be made in the due observance or performance by Holdings or any of its
      Subsidiaries of any covenant, condition or agreement contained in Section 6.02,
      6.03(a),
      6.08,
      6.15,
      6.16,
      6.19
      or in
Article VII;

     

    (e) default
      shall be made in the due observance or performance by Holdings or any of its
      Subsidiaries of any covenant, condition or agreement contained in any Financing
      Document (other than those specified in paragraphs (a), (b) or (d)
      immediately above) and such default shall continue unremedied or shall not
      be
      waived for a period of 30 days after written notice thereof from the Agent
      or any Noteholder to the Company;

     

    (f) Holdings
      or any of its Subsidiaries shall (i) fail to pay any principal or interest,
      regardless of amount, due in respect of any Indebtedness (other than the
      Obligations), when and as the same shall become due and payable beyond any
      applicable grace period, or (ii) fail to observe or perform any other term,
      covenant, condition or agreement contained in any agreement or instrument
      evidencing or governing any such Indebtedness if the effect of any failure
      referred to in this clause (ii) is to cause, or to permit the holder or
      holders of such Indebtedness or a trustee or other representative on its or
      their behalf (with or without the giving of notice, the lapse of time or both)
      to cause, such Indebtedness to become due prior to its stated maturity or become
      subject to a mandatory purchase offer by the obligor; provided
      that it
      shall not constitute an Event of Default pursuant to this paragraph
      (f) unless the aggregate amount of all such Indebtedness referred to in
      clauses (i) and (ii) exceeds $500,000 at any one time;

     

    (g) an
      involuntary proceeding shall be commenced or an involuntary petition shall
      be
      filed in a court of competent jurisdiction seeking (i) relief in respect of
      any Issuer or of a substantial part of the property of Holdings or any other
      Issuer, under Title 11 of the U.S. Code, as now constituted or hereafter
      amended, or any other federal, state or foreign bankruptcy, insolvency,
      receivership or similar law; (ii) the appointment of a receiver, trustee,
      custodian, sequestrator, conservator or similar official for Holdings or any
      other Issuer or for a substantial part of the property of Holdings or any other
      Issuer; or (iii) the winding-up or liquidation of Holdings or any other
      Issuer; and such proceeding or petition shall continue undismissed for
      90 days or an order or decree approving or ordering any of the foregoing
      shall be entered;

    
      
         

      

      
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    (h) Holdings
      or any other Issuer shall (i) voluntarily commence any proceeding or file
      any petition seeking relief under Title 11 of the United States Code, as
      now constituted or hereafter amended, or any other federal, state or foreign
      bankruptcy, insolvency, receivership or similar law; (ii) consent to the
      institution of, or fail to contest in a timely and appropriate manner, any
      proceeding or the filing of any petition described in clause (g) above;
      (iii) apply for or consent to the appointment of a receiver, trustee,
      custodian, sequestrator, conservator or similar official for Holdings or any
      other Issuer or for a substantial part of the property of Holdings or any other
      Issuer; (iv) file an answer admitting the material allegations of a
      petition filed against it in any such proceeding; (v) make a general
      assignment for the benefit of creditors; (vi) become unable, admit in
      writing its inability or fail generally to pay its debts as they become due;
      (vii) take any action for the purpose of effecting any of the foregoing; or
      (viii) wind up or liquidate;

     

    (i) one
      or
      more judgments, orders or decrees for the payment of money in an aggregate
      amount in excess of $500,000 shall be rendered against Holdings or any of its
      Subsidiaries or any combination thereof and the same shall remain undischarged,
      unvacated or unbonded for a period of 30 consecutive days during which execution
      shall not be effectively stayed, or any action shall be legally taken by a
      judgment creditor to levy upon properties of Holdings or any of its Subsidiaries
      to enforce any such judgment;

     

    (j) one
      or
      more ERISA Events shall have occurred that, in the opinion of the Required
      Holders, when taken together with all other such ERISA Events, could reasonably
      be expected to result in liability of Holdings or any of its Subsidiaries and
      its ERISA Affiliates in an aggregate amount exceeding $500,000 or in the
      imposition of a Lien on any properties of Holdings or any of its
      Subsidiaries;

     

    (k) the
      security interest and Lien purported to be created by any Security Document
      shall cease to be in full force and effect, or shall cease to give the Agent,
      for the benefit of the Secured Parties, the Liens, rights, powers and privileges
      purported to be created and granted under such Security Document (including
      a
      perfected first priority security interest in and Lien on all of the Collateral
      thereunder (except as otherwise expressly provided in such Security Document))
      in favor of the Agent, or shall be asserted by the Company or any other Issuer
      not to be a valid, perfected, first priority (except as otherwise expressly
      provided in this Agreement or such Security Document) security interest in
      or
      Lien on the Collateral covered thereby;

     

    (l) any
      Financing Document or any material provisions thereof shall at any time and
      for
      any reason be declared by a court of competent jurisdiction to be null and
      void,
      or a proceeding shall be commenced by any Issuer or any other person, or by
      any
      Governmental Authority, seeking to establish the invalidity or unenforceability
      thereof (exclusive of questions of interpretation of any provision thereof),
      or
      any Issuer shall repudiate or deny any portion of its liability or obligation
      for the Obligations;

     

    (m) there
      shall have occurred the termination of, or the receipt by any Issuer of notice
      of the termination of, or the occurrence of any event or condition which would,
      with the passage of time or the giving of notice or both, constitute an event
      of
      default under or permit the termination of, any one or more agreements or
      licenses of Holdings or any of its Subsidiaries, the termination of which has
      or
      could reasonably be expected to result in a Material Adverse Effect;
      or

    
      
         

      

      
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    (n) Holdings
      or any of its Subsidiaries shall be prohibited or otherwise restrained from
      conducting the business theretofore conducted by it in any manner that has
      or
      could reasonably be expected to result in a Material Adverse Effect by virtue
      of
      any determination, ruling, decision, decree or order of any court or
      Governmental Authority of competent jurisdiction; 

     

    then,
      and
      in every such event (other than an event with respect to any Issuer described
      in
      paragraph (g) or (h) above), and at any time thereafter during the
      continuance of such event, the Required Holders may, by written notice to the
      Company, declare the Notes then outstanding to be immediately due and payable,
      and thereupon the principal of the Notes so declared to be due and payable,
      together with accrued interest thereon and any unpaid accrued fees, and all
      other Obligations of the Company accrued hereunder and under any other Financing
      Document, shall become forthwith due and payable, without presentment, demand,
      protest or any other notice of any kind, all of which are hereby expressly
      waived by the Issuers, anything contained herein or in any other Financing
      Document to the contrary notwithstanding; and in any event, with respect to
      any
      Issuer described in paragraph (g) or (h) above, the principal of the Notes
      then outstanding, together with accrued interest thereon and any and all fees
      and all other Obligations of the Company accrued hereunder, shall automatically
      become due and payable, without presentment, demand, protest or any other notice
      of any kind, all of which are hereby expressly waived by the Issuers, anything
      contained herein or in any other Financing Document to the contrary
      notwithstanding. Notwithstanding the foregoing, the right of any Noteholder
      to
      receive payment of principal of, premium, if any, or interest on any Note held
      by such Noteholder on or after the respective due dates expressed in such Note,
      or to bring suit for the enforcement of any such repayment on or after such
      respective dates, is absolute and unconditional and shall not be impaired or
      affected without the consent of such Noteholder.

     

    If
      an
      Event of Default occurs by reason of any willful action (or inaction) taken
      (or
      not taken) by or on behalf of the Company, as determined by a court of competent
      jurisdiction, with the intention of avoiding payment of the premium that the
      Company would have had to pay if the Company then had elected to optionally
      redeem the Notes pursuant to Paragraph 3 of the Notes (the “Optional
      Redemption Premium”),
      then,
      upon acceleration of the Notes as provided for in the preceding paragraph,
      the
      amount of the Optional Redemption Premium applicable to an optional redemption
      of the Notes occurring on the date of the applicable Event of Default shall
      also
      become and be immediately due and payable, to the extent permitted by applicable
      law, anything in this Agreement or in the Notes to the contrary
      notwithstanding.

     

    At
      any
      time after such a declaration of acceleration has been made and before a
      judgment or decree for payment of the money due has been obtained, the Required
      Holders, by written notice to the Company, may rescind and annul such
      declaration and its consequences if:

     

    (a) the
      Company has paid a sum sufficient to pay: (i) all overdue interest on all Notes;
      (ii) the principal of (and premium, if any, on) any Notes which have become
      due
      otherwise than by such declaration of acceleration (including any Notes required
      to have been purchased pursuant to an offer to purchase that the Company is
      required to make hereunder) and any interest thereon at the rate borne by the
      Notes; and (iii) to the extent that payment of such interest is lawful, interest
      upon overdue interest at the rate provided therefor in the Notes; and


    
      
         

      

      
        -86-

        
          

        

      

      
         

      

    

     

    (b) all
      Events of Default, other than the non-payment of the principal amount of Notes
      and interest thereon which have become due solely by such declaration of
      acceleration, have been cured or waived as provided in Section
      9.02.

     

    SECTION
      9.02 Waiver
      of Past Defaults.
      The
      Required Holders may on behalf of the Holders of all the Notes waive any past
      default hereunder and its consequences, except a default: (i) in the payment
      of
      the principal (or premium, if any) or interest on any Note (including any Note
      which is required to have been purchased pursuant to an offer to purchase that
      the Company is required to make hereunder); or (ii) in respect of a covenant
      or
      provision hereof which under Section
      14.02
      cannot
      be modified or amended without the consent of the Holder of each outstanding
      Note affected.

     

    Upon
      any
      such waiver, such default shall cease to exist, and any Event of Default arising
      therefrom shall be deemed to have been cured, for every purpose of this
      Agreement; provided,
      however,
      that no
      such waiver shall extend to any subsequent or other default or impair any right
      consequent thereon.

     

    SECTION
      9.03 Application
      of Proceeds.
      The
      proceeds received by the Agent in respect of any sale of, collection from or
      other realization upon all or any part of the Collateral pursuant to the
      exercise by the Agent of its remedies under the Security Documents shall be
      applied, in full or in part, together with any other sums then held by the
      Agent
      pursuant to this Agreement, promptly by the Agent as follows:

     

    (a) First,
      to the
      payment of all reasonable costs and expenses, fees, commissions and taxes of
      such sale, collection or other realization including compensation to the Agent
      and its agents and counsel, and all expenses, liabilities and advances made
      or
      incurred by the Agent in connection therewith and all amounts for which the
      Agent is entitled to indemnification pursuant to the provisions of any Financing
      Document, together with interest on each such amount at the highest rate then
      in
      effect under this Agreement from and after the date such amount is due, owing
      or
      unpaid until paid in full;

     

    (b) Second,
      to the
      payment of all other reasonable costs and expenses of such sale, collection
      or
      other realization including compensation to the other Secured Parties and their
      agents and counsel and all costs, liabilities and advances made or incurred
      by
      the other Secured Parties in connection therewith, together with interest on
      each such amount at the highest rate then in effect under this Agreement from
      and after the date such amount is due, owing or unpaid until paid in
      full;

     

    (c) Third,
      without
      duplication of amounts applied pursuant to clauses (a) and (b) above, to
      the indefeasible payment in full in cash, pro
      rata,
      of
      interest and other amounts constituting Obligations, in each case equally and
      ratably in accordance with the respective amounts thereof then due and
      owing;

     

    (d) Fourth,
      to the
      indefeasible payment in full in cash, pro
      rata,
      of the
      principal amount of the Obligations and any premium thereon; and

     

    (e) Fifth,
      the
      balance, if any, to the person lawfully entitled thereto (including the
      applicable Issuer or its successors or assigns) or as a court of competent
      jurisdiction may direct.

    
      
         

      

      
        -87-

        
          

        

      

      
         

      

    

     

    In
      the
      event that any such proceeds are insufficient to pay in full the items described
      in clauses (a) through (e) of this Section 9.03,
      the
      Issuers shall remain liable, jointly and severally, for any
      deficiency.

     

    SECTION
      9.04 The
      Company’s Right To Cure.
      

     

    (a) Notwithstanding
      anything to the contrary contained in Section
      9.01,
      in the
      event that Holdings fails to comply with any of the covenants in Section
      7.10 (a),
      (b)
      or
(c),
      until
      the expiration of the 15th day subsequent to the date the certificate
      calculating compliance with such covenant is required to be delivered pursuant
      to Section
      6.01(d),
      Holdings shall have the right to issue Permitted Cure Securities for cash to,
      or
      otherwise receive cash contributions from, Sponsor or any of its Controlled
      Investment Affiliates (collectively, the “Cure
      Right”),
      and
      upon the contribution to the Company of such cash (the “Cure
      Amount”)
      pursuant to the exercise of such Cure Right such financial covenant shall be
      recalculated giving effect to the following pro
      forma
      adjustments:

     

    (i) Consolidated
      EBITDA (in the case of Sections
      7.10(a)
      or
(c))
      or
      Qualified Cash (in the case of Section
      7.10(b)),
      as
      applicable, shall be increased, solely for the purposes of Section
      7.10
      and not
      for any other purpose under this Agreement, by an amount equal to the Cure
      Amount; and

     

    (ii) If,
      after
      giving effect to the foregoing recalculations, Holdings shall then be in
      compliance with the requirements of Section
      7.10,
      the
      Holdings shall be deemed to have satisfied the requirements of Section
      7.10
      as of
      the relevant date of determination with the same effect as though there had
      been
      no failure to comply therewith at such date, and the applicable breach or
      default of Section
      7.10
      that had
      occurred shall be deemed cured for the purposes of this Agreement.

     

    Notwithstanding
      anything herein to the contrary, (i) in each four-fiscal-quarter period there
      shall be at least two fiscal quarters in which the Cure Right is not exercised,
      (ii) in each eight-fiscal-quarter period, there shall be at least five fiscal
      quarters during which the Cure Right is not exercised, (iii) for purposes of
      this Section
      9.04,
      the
      Cure Amount shall be no greater than the amount required for purposes of
      complying with Section
      7.10
      and (iv)
      the aggregate amount of all Cure Amounts shall not exceed
      $6,000,000.

     

    (b) Prior
      to
      the funding of any Cure Amount the Company shall provide each Noteholder with
      a
      certificate of Responsible Officer identifying in reasonable detail the
      circumstances resulting in the covenant non-compliance, and the Company shall
      provide the Noteholders with such additional information relating thereto as
      the
      Required Holders shall reasonably require.

     

    ARTICLE
      X

     

    THE
      NOTES

     

    SECTION
      10.01 Form
      and Execution.
      The
      Initial Notes shall be in the form of Exhibit A-1
      hereto
      and the Additional Notes shall be in the form of Exhibit
      A-2
      hereto.
      The Notes shall be executed on behalf of the Company by its President or one
      of
      its Vice Presidents and attested by its Secretary or one of its Assistant
      Secretaries. The signature of any of these officers on the Notes may be manual
      or facsimile.

    
      
         

      

      
        -88-

        
          

        

      

      
         

      

    

     

    Notes
      bearing the manual or facsimile signatures of individuals who were at any time
      the proper officers of the Company shall bind the Company, notwithstanding
      that
      such individuals or any of them have ceased to hold such offices prior to the
      authentication and delivery of such Notes or did not hold such offices at the
      date of such Notes.

     

    SECTION
      10.02 Terms
      of the Notes.
      The
      terms of the Initial Notes and the Additional Notes shall be as set forth in,
      respectively, Exhibits
      A-1
      and
A-2
      hereto.
      Without limiting the foregoing:

     

    (a) Stated
      Maturity Date.
      The
      Stated Maturity Date of the principal of the Initial Notes and the Additional
      Notes shall be as provided in, respectively, Exhibits A-1
      and
A-2
      hereto.

     

    (b) Interest.
      The
      Initial Notes and the Additional Notes will bear interest on their principal
      amount and overdue interest as provided in, respectively, Exhibits A-1
      and
A-2
      hereto.

     

    SECTION
      10.03 Denominations.
      The
      Notes shall be issuable only in registered form without coupons and only in
      denominations of U.S. $1,000 and any integral multiple thereof.

     

    SECTION
      10.04 Form
      of Legend for the Notes.
      

     

    (a) Initial
      Notes.
      Unless
      otherwise permitted by Section
      10.07,
      every
      Initial Note issued and delivered hereunder shall bear a legend in substantially
      the following form:

     

    THE
      SECURITY REPRESENTED BY THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE
      SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES
      ACT”),
      OR QUALIFIED UNDER ANY STATE SECURITIES LAWS AND MAY NOT BE TRANSFERRED, SOLD
      OR
      OTHERWISE DISPOSED OF EXCEPT WHILE A REGISTRATION STATEMENT IS IN EFFECT OR
      PURSUANT TO AN AVAILABLE EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT
      AND APPLICABLE STATE SECURITIES LAWS. THE HOLDER OF THIS SECURITY IS SUBJECT
      TO
      THE TERMS OF THE PURCHASE AGREEMENT, DATED AS OF JULY 21, 2006, AS AMENDED
      AND
      RESTATED ON MAY 16, 2007 (THE “PURCHASE
      AGREEMENT”),
      AMONG DIGITAL DOMAIN, INC. (THE “COMPANY”),
      WYNDCREST DD HOLDINGS, INC., THE SUBSIDIARY GUARANTORS NAMED THEREIN AND THE
      PURCHASERS NAMED THEREIN. A COPY OF SUCH PURCHASE AGREEMENT IS AVAILABLE AT
      THE
      OFFICES OF THE COMPANY.

     

    FOR
      PURPOSES OF SECTIONS 1272, 1273 AND 1275 OF THE INTERNAL REVENUE CODE OF 1986,
      AS AMENDED, AND THE RULES AND REGULATIONS THEREUNDER, THIS NOTE IS BEING ISSUED
      WITH ORIGINAL ISSUE DISCOUNT. THE ISSUE DATE IS JULY 21, 2006. FOR INFORMATION
      RELATING TO (1) THE ISSUE PRICE, (2) THE YIELD TO MATURITY AND (3) THE AMOUNT
      OF
      THE ORIGINAL ISSUE DISCOUNT, PLEASE CONTACT YVETTE MACALUSO, VICE
      PRESIDENT-FINANCE OF THE COMPANY, AT (310) 314-2842. 

    
      
         

      

      
        -89-

        
          

        

      

      
         

      

    

     

    (b) Additional
      Notes.
      Unless
      otherwise permitted by Section
      10.07,
      every
      Additional Note issued and delivered hereunder shall bear a legend in
      substantially the following form:

     

    THE
      SECURITY REPRESENTED BY THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE
      SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES
      ACT”),
      OR QUALIFIED UNDER ANY STATE SECURITIES LAWS AND MAY NOT BE TRANSFERRED, SOLD
      OR
      OTHERWISE DISPOSED OF EXCEPT WHILE A REGISTRATION STATEMENT IS IN EFFECT OR
      PURSUANT TO AN AVAILABLE EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT
      AND APPLICABLE STATE SECURITIES LAWS. THE HOLDER OF THIS SECURITY IS SUBJECT
      TO
      THE TERMS OF THE PURCHASE AGREEMENT, DATED AS OF JULY 21, 2006, AS AMENDED
      AND
      RESTATED ON MAY 16, 2007 (THE “PURCHASE
      AGREEMENT”),
      AMONG DIGITAL DOMAIN, INC. (THE “COMPANY”),
      WYNDCREST DD HOLDINGS, INC., THE SUBSIDIARY GUARANTORS NAMED THEREIN AND THE
      PURCHASERS NAMED THEREIN. A COPY OF SUCH PURCHASE AGREEMENT IS AVAILABLE AT
      THE
      OFFICES OF THE COMPANY.

     

    FOR
      PURPOSES OF SECTIONS 1272, 1273 AND 1275 OF THE INTERNAL REVENUE CODE OF 1986,
      AS AMENDED, AND THE RULES AND REGULATIONS THEREUNDER, THIS NOTE IS BEING ISSUED
      WITH ORIGINAL ISSUE DISCOUNT. THE ISSUE DATE IS MAY 16, 2007. FOR INFORMATION
      RELATING TO (1) THE ISSUE PRICE, (2) THE YIELD TO MATURITY AND (3) THE AMOUNT
      OF
      THE ORIGINAL ISSUE DISCOUNT, PLEASE CONTACT YVETTE MACALUSO, VICE PRESIDENT
      -
      FINANCE OF THE COMPANY, AT (310) 314-2842. 

     

    SECTION
      10.05 Payments
      and Computations.
      All
      payments of interest on the Notes shall be paid to the persons in whose names
      such Notes are registered on the Security Register at the close of business
      on
      the date fifteen calendar days prior to the related Interest Payment Date (the
      “Regular
      Record Date”)
      and
      all payments of principal on the Notes shall be paid to the persons in whose
      names such Notes are registered on the applicable Redemption Date or at
      Maturity, as applicable. Notwithstanding the foregoing, if a Note is issued
      after a Regular Record Date and prior to an Interest Payment Date, the record
      date for such Interest Payment Date applicable to such Note shall be the
      original issue date thereof. Principal and premium, if any, on any Note shall
      be
      payable only against surrender therefor, while payments of interest on Notes
      shall be made, in accordance with this Agreement and subject to applicable
      laws
      and regulations, by wire transfer in immediately available funds to such account
      as any Noteholder shall designate by written instructions received by the
      Company no less than 5 days prior to any applicable Interest Payment Date,
      which
      wire instruction shall continue in effect until such time as the Noteholder
      otherwise notifies the Company or such Noteholder no longer is the registered
      owner of such Note or Notes.

     

    SECTION
      10.06 Registration;
      Registration of Transfer and Exchange.

     

    (a) Security
      Register.
      The
      Company shall maintain a register (the “Security
      Register”)
      for
      the registration or transfer of the Notes. The name and address of the
      Noteholder of each Note, records of any transfers of the Notes and the name
      and
      address of any transferee of a Note shall be entered in the Security Register
      and the Company shall, promptly upon receipt thereof, update the Security
      Register to reflect all information received from a Noteholder. There shall
      be
      no more than one Noteholder for each Note, including all beneficial interests
      therein.

    
      
         

      

      
        -90-

        
          

        

      

      
         

      

    

     

    (b)
      Registration
      of Transfer.
      Upon
      surrender for registration of transfer of any Note at the office or agency
      of
      the Company, the Company shall execute and deliver, in the name of the
      designated transferee or transferees, one or more new Notes, of any authorized
      denominations and like aggregate principal amount.

     

    (c)
      Exchange.
      At the
      option of the Noteholder, Notes may be exchanged for other Notes, of any
      authorized denominations and of like aggregate principal amount, upon surrender
      of the Notes to be exchanged at such office or agency. Whenever any Notes are
      so
      surrendered for exchange, the Company shall execute and deliver the Notes which
      the Noteholder making the exchange is entitled to receive.

     

    (d)
      Effect
      of Registration of Transfer or Exchange.
      All
      Notes issued upon any registration of transfer or exchange of Notes shall be
      the
      valid obligations of the Company, evidencing the same debt, and entitled to
      the
      same benefits under this Agreement, as the Notes surrendered upon such
      registration of transfer or exchange.

     

    (e)
      Requirements;
      Charges.
      Every
      Note presented or surrendered for registration of transfer or for exchange
      shall
      (if so required by the Company) be duly endorsed, or be accompanied by a written
      instrument of transfer in form satisfactory to the Company duly executed, by
      the
      Noteholder thereof or his attorney duly authorized in writing. No service charge
      shall be made for any registration of transfer or exchange of
      Notes.

     

    (f)
      Certain
      Limitations.
      If the
      Notes are to be redeemed in part, the Company shall not be required (i) to
      issue, register the transfer of or exchange any Note during a period beginning
      at the opening of business 15 Business Days before the day of the mailing of
      a
      notice of redemption of any such Notes selected for redemption under
Section
      11.02
      and
      ending at the close of business on the Business Day of such mailing, or
      (ii) to register the transfer of or exchange any Note so selected for
      redemption in whole or in part, except the unredeemed portion of any Note being
      redeemed in part.

     

    SECTION
      10.07 Transfer
      Restrictions.
      

     

    (a) No
      Note
      may be sold, transferred or otherwise disposed of (any such sale, transfer
      or
      other disposition is herein referred to as a “sale”),
      except in compliance with this Section
      10.07.

     

    (b) Subject
      to clause (e) below, a Noteholder may sell Notes to a transferee that is an
      Accredited Investor or a Qualified Institutional Buyer; provided,
      however, that
      each
      of the following conditions is satisfied:

     

    (i) such
      transferee represents that it is acquiring the Note or Notes for its own account
      and that it is not acquiring such Note or Notes with a view to, or for offer
      or
      sale in connection with, any distribution thereof (within the meaning of the
      Securities Act) that would be in violation of the securities laws of the United
      States or any state thereof, but subject, nevertheless, to the disposition
      of
      its property being at all times within its control; and

     

    (ii) such
      transferee agrees to be bound by the provisions of this Section
      10.07
      with
      respect to any resale of the Notes.

    
      
         

      

      
        -91-

        
          

        

      

      
         

      

    

     

    (c) Subject
      to clause (e) below, a Noteholder may sell its Notes to a transferee in
      accordance with Regulation S; provided,
      however, that
      each
      of the following conditions is satisfied:

     

    (i) the
      offer
      of Notes is not made to a person in the United States; and either:

     

    (A) at
      the
      time the buy order is originated, the transferee is outside the United States
      or
      the Noteholder and any person acting on its behalf reasonably believes that
      the
      transferee is outside the United States, or

     

    (B) the
      transaction is executed in, on or through the facilities of a designated
      offshore securities market and neither the Noteholder nor any person acting
      on
      its behalf knows that the transaction was pre-arranged with a buyer in the
      United States;

     

    (ii) no
      directed selling efforts are made in contravention of the requirements of Rule
      903(b) or 904(b) of Regulation S, as applicable; and

     

    (iii) the
      transaction is not part of a plan or scheme to evade the registration
      requirements of the Securities Act.

     

    (d) Subject
      to clause (e) below, in the event of a proposed sale that does not qualify
      under
      either Section
      10.07(b)
      or
10.07(c)
      above, a
      Noteholder may sell its Notes only if:

     

    (i) such
      Noteholder gives written notice to the Company of its intention to effect such
      sale, which notice (A) shall describe the manner and circumstances of the
      proposed transaction in reasonable detail and (B) shall designate the
      counsel for such Noteholder, which counsel shall be reasonably satisfactory
      to
      the Company; 

     

    (ii) counsel
      for the Noteholder shall render an opinion to the effect that such proposed
      sale
      may be effected without registration under the Securities Act; and

     

    (iii) such
      transferee complies with Sections
      10.07(b)(i) and
      10.07(b)(ii).

     

    (e) Notwithstanding
      the forgoing provisions of this Section
      10.07,
      no sale
      of a Note shall be permitted unless the Noteholder thereof shall have received
      the prior written consent of the Company (which consent may be withheld or
      delayed by the Company in its sole discretion); provided
      that no
      such consent shall be required (i) following the occurrence of and during the
      continuance of a Default or Event of Default or (ii) in connection with the
      sale
      of a Note to one or more Noteholders and/or Affiliates of any Noteholder. In
      the
      event that the Company shall not have notified a Noteholder as to its
      determination to grant or withhold its consent in connection with any proposed
      sale within five (5) Business Days of a request by such Noteholder, the Company
      shall be deemed to have consented to such sale.

     

    SECTION
      10.08 Mutilated,
      Destroyed, Lost and Stolen Notes.
      If any
      mutilated Note is surrendered to the Company, the Company shall execute and
      deliver in exchange therefor a new Note of the same principal amount and bearing
      a number not contemporaneously outstanding.

     

    If
      there
      shall be delivered to the Company (a) evidence to its satisfaction of the
      destruction, loss or theft of any Note and (b) such security or indemnity
      as may be required by it to save each of it and any agent harmless, then, in
      the
      absence of notice that such Note has been acquired by a bona fide purchaser,
      the
      Company shall execute and deliver, in lieu of any such destroyed, lost or stolen
      Note, a new Note of a like principal amount and bearing a number not
      contemporaneously outstanding.

    
      
         

      

      
        -92-

        
          

        

      

      
         

      

    

     

    In
      case
      any such mutilated, destroyed, lost or stolen Note has become or is about to
      become due and payable, the Company in its discretion may, instead of issuing
      a
      new Note, pay such Note.

     

    Upon
      the
      issuance of any new Note pursuant to this Section, the Company may require
      the
      payment of a sum sufficient to cover any tax or other governmental charge that
      may be imposed in relation thereto and any other expenses connected
      therewith.

     

    Every
      new
      Note issued pursuant to this Section
      10.08
      in lieu
      of any destroyed, lost or stolen Note shall constitute an original additional
      contractual obligation of the Company, whether or not the destroyed, lost or
      stolen Note shall be at any time enforceable by anyone, and shall be entitled
      to
      all the benefits of this Agreement equally and proportionately with any and
      all
      other Notes duly issued hereunder.

     

    The
      provisions of this Section
      10.08
      are
      exclusive and shall preclude (to the extent lawful) all other rights and
      remedies with respect to the replacement or payment of mutilated, destroyed,
      lost or stolen Notes.

     

    SECTION
      10.09 Persons
      Deemed Owners.
      Prior
      to due presentment of a Note for registration of transfer, the Company and
      any
      agent of the Company may treat the person in whose name such Note is registered
      as the owner of such Note for the purpose of receiving payment of principal
      of
      and interest on such Note and for all other purposes whatsoever, whether or
      not
      such Note be overdue and neither the Company nor any agent of the Company shall
      be affected by notice to the contrary.

     

    SECTION
      10.10 Cancellation.
      All
      Notes surrendered for payment, redemption, registration of transfer or exchange
      shall, if surrendered to any person other than the Company, be delivered to
      the
      Company and shall be promptly canceled by it. The Company shall cancel any
      Notes
      previously issued and delivered hereunder which the Company may have
      reacquired.

     

    SECTION
      10.11 Home
      Office Payment.
      So long
      as any Purchaser or its nominee shall be the holder of any Note, and
      notwithstanding anything contained in this Agreement or such Note to the
      contrary, the Company will pay all sums becoming due on such Note for principal,
      premium, if any, and interest by such method and at such address as such
      Purchaser shall have from time to time specified to the Company in writing
      for
      such purpose, without the presentation or surrender of such Note or the making
      of any notation thereon, except that upon written request of the Company made
      concurrently with or reasonably promptly after payment or prepayment in full
      of
      any Note, such Purchaser shall surrender such Note for cancellation reasonably
      promptly after any such request, to the Company at its principal executive
      office. Prior to any sale or other disposition of any Note held by such
      Purchaser or its nominee such Purchaser will, at its election, either endorse
      thereon the amount of principal paid thereon and the last date to which interest
      has been paid thereon or surrender such Note to the Company in exchange for
      a
      new Note or Notes pursuant to Section
      10.06.
      The
      Company will afford the benefits of this Section
      10.11
      to any
      Institutional Investor that is the direct or indirect transferee of any Note
      purchased by such Purchaser under this Agreement and that has made the same
      agreement relating to such Note as such Purchaser made in this Section
      10.11.

    
      
         

      

      
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    ARTICLE
      XI

     

    REDEMPTION

     

    SECTION
      11.01 Right
      of Redemption.
      The
      Initial Notes may be redeemed at the election of the Company at such times,
      in
      such amounts and at the Redemption Prices (together with any applicable accrued
      interest to the Redemption Date) specified in the form of Initial Note attached
      as Exhibit A-1
      hereto.
      The Additional Notes may be redeemed at the election of the Company at such
      times, in such amounts and at the Redemption Prices (together with any
      applicable accrued interest to the Redemption Date) specified in the form of
      Additional Note attached as Exhibit
      A-2
      hereto.

     

    SECTION
      11.02 Partial
      Redemptions.
      In case
      the Company elects to redeem less than all of the Notes, the Company shall
      redeem the Notes on a pro
      rata
      basis
      within each series of Notes (i.e., Initial Notes and Additional Notes) as well
      as (other than, at the option of the Company and in its sole discretion, in
      the
      case of a redemption, pursuant to the terms of the Additional Notes, of all
      (but
      not less than all) Additional Notes in connection with the consummation of
      a
      QIPO prior to December 31, 2007) on a pro
      rata
      basis
      with respect to all Notes. For all purposes of this Agreement, unless the
      context otherwise requires, all provisions relating to the redemption of Notes
      shall relate, in the case of any Notes redeemed or to be redeemed only in part,
      to the portion of the principal amount of such Notes which has been or is to
      be
      redeemed.

     

    SECTION
      11.03 Notice
      of Redemption.
      Notice
      of redemption shall be given by overnight courier not less than five Business
      Days nor more than ten Business Days prior to the Redemption Date, to each
      Noteholder to be redeemed, at his address appearing in the Security Register;
      provided
      that if
      such redemption is of the Additional Notes in connection with the consummation
      of a QIPO prior to December 31, 2007, such notice of redemption may be
      given by overnight courier not less than three Business Days prior to the
      Redemption Date and such notice of redemption may state that such redemption
      is
      conditioned upon the consummation of a QIPO.

     

    All
      notices of redemption shall state:

     

    (a)
      the
      Redemption Date,

     

    (b)
      the
      Redemption Price,

     

    (c)
      if
      less
      than all the outstanding Notes are to be redeemed, the portion of each Note
      to
      be redeemed,

     

    (d)
      that
      on
      the Redemption Date the Redemption Price will become due and payable upon each
      such Note to be redeemed and that interest thereon will cease to accrue on
      and
      after said date, and

     

    (e)
      the
      place
      or places where such Notes are to be surrendered for payment of the Redemption
      Price.

     

    Notice
      of
      redemption of Notes to be redeemed at the election of the Company shall be
      given
      by the Company and at the expense of the Company.

    
      
         

      

      
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    SECTION
      11.04 Deposit
      of Redemption Price.
      Prior
      to any Redemption Date, the Company shall segregate and hold in trust an amount
      of money sufficient to pay the Redemption Price of, and (except if the
      Redemption Date shall be an Interest Payment Date) any applicable accrued
      interest on, all the Notes which are to be redeemed on that date.

     

    SECTION
      11.05 Notes
      Payable on Redemption Date.
      If
      notice of redemption shall have been given as provided above, the Notes so
      to be
      redeemed shall, on the Redemption Date, become due and payable at the Redemption
      Price therein specified, and from and after such date (unless the Company shall
      default in the payment of the Redemption Price and any applicable accrued
      interest) such Notes shall not bear interest. Upon surrender of any such Note
      for redemption in accordance with said notice, such Note shall be paid by the
      Company at the Redemption Price, together with any applicable accrued interest
      to the Redemption Date; provided,
      however, that
      installments of interest due on or prior to the Redemption Date shall be payable
      to the Noteholders of such Notes, or one or more Predecessor Notes, registered
      as such at the close of business on the relevant Record Dates according to
      their
      terms and the provisions of this Agreement.

     

    If
      any
      Note called for redemption shall not be so paid upon surrender thereof for
      redemption, the principal (and premium, if any) shall, until paid, bear interest
      from the Redemption Date at the rate provided by the Note.

     

    SECTION
      11.06 Notes
      Redeemed in Part.
      Any
      Note which is to be redeemed only in part shall be surrendered at the principal
      offices of the Company (with, if the Company so requires, due endorsement by,
      or
      a written instrument of transfer in form satisfactory to the Company duly
      executed by, the Noteholder thereof or his attorney duly authorized in writing),
      and the Company shall execute and deliver to the Noteholder of such Note without
      service charge, a new Note or Notes, of any authorized denomination as requested
      by such Noteholder, in aggregate principal amount equal to and in exchange
      for
      the unredeemed portion of the principal of the Note so surrendered.

     

    ARTICLE
      XII

     

    THE
      AGENT

     

    SECTION
      12.01 Appointment
      and Authority.
      Each of
      the Noteholders hereby irrevocably appoints FMP Agency Services, LLC, to act
      on
      its behalf as the Agent hereunder and under the other Financing Documents and
      authorizes the Agent to take such actions on its behalf and to exercise such
      powers as are delegated to the Agent by the terms hereof or thereof, together
      with such actions and powers as are reasonably incidental thereto. The
      provisions of this Article are solely for the benefit of the Agent and the
      Noteholders, and neither the Company nor any other Issuer shall have rights
      as a
      third party beneficiary of any of such provisions.

     

    SECTION
      12.02 Rights
      as a Purchaser.
      Each
      person serving as an Agent hereunder shall have the same rights and powers
      in
      its capacity as a Noteholder as any other Noteholder and may exercise the same
      as though it were not an Agent and the term “Noteholder” or “Noteholders” shall,
      unless otherwise expressly indicated or unless the context otherwise requires,
      include each person serving as an Agent hereunder in its individual capacity.
      Such person and its Affiliates may accept deposits from, lend money to, act
      as
      the financial advisor or in any other advisory capacity for and generally engage
      in any kind of business with Holdings or any of its Subsidiaries or other
      Affiliate thereof as if such person were not an Agent hereunder and without
      any
      duty to account therefor to the Noteholders.

    
      
         

      

      
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    SECTION
      12.03 Exculpatory
      Provisions.
      The
      Agent shall not have any duties or obligations except those expressly set forth
      herein and in the other Financing Documents. Without limiting the generality
      of
      the foregoing, the Agent: 

     

    (i) shall
      not
      be subject to any fiduciary or other implied duties, regardless of whether
      a
      Default has occurred and is continuing;

     

    (ii) shall
      not
      have any duty to take any discretionary action or exercise any discretionary
      powers, except discretionary rights and powers expressly contemplated hereby
      or
      by the other Financing Documents that the Agent is required to exercise as
      directed in writing by the Required Holders (or such other number or percentage
      of the Noteholders as shall be expressly provided for herein or in the other
      Financing Documents); provided
      that the
      Agent shall not be required to take any action that, in its judgment or the
      judgment of its counsel, may expose the Agent to liability or that is contrary
      to any Financing Document or applicable Requirements of Law; and

     

    (iii) shall
      not, except as expressly set forth herein and in the other Financing Documents,
      have any duty to disclose, and shall not be liable for the failure to disclose,
      any information relating to the Company or any of its Affiliates that is
      communicated to or obtained by the person serving as the Agent or any of its
      Affiliates in any capacity.

     

    The
      Agent
      shall not be liable for any action taken or not taken by it (x) with the
      consent or at the request of the Required Holders (or such other number or
      percentage of the Noteholders as shall be necessary, or as the Agent shall
      believe in good faith shall be necessary, under the circumstances as provided
      in
Section 14.02)
      or
      (y) in the absence of its own gross negligence or willful misconduct. The
      Agent shall not be deemed to have knowledge of any Default unless and until
      notice describing such Default is given to the Agent by the Company or a
      Noteholder.

     

    The
      Agent
      shall not be responsible for or have any duty to ascertain or inquire into
      (i) any statement, warranty or representation made in or in connection with
      this Agreement or any other Financing Document, (ii) the contents of any
      certificate, report or other document delivered hereunder or thereunder or
      in
      connection herewith or therewith, (iii) the performance or observance of
      any of the covenants, agreements or other terms or conditions set forth herein
      or therein or the occurrence of any Default, (iv) the validity,
      enforceability, effectiveness or genuineness of this Agreement, any other
      Financing Document or any other agreement, instrument or document or
      (v) the satisfaction of any condition set forth in Article V
      or
      elsewhere herein, other than to confirm receipt of items expressly required
      to
      be delivered to the Agent. Without limiting the generality of the foregoing,
      the
      use of the term “agent” in this Agreement with reference to the Agent is not
      intended to connote any fiduciary or other implied (or express) obligations
      arising under agency doctrine of any applicable law. Instead, such term us
      used
      merely as a matter of market custom and is intended to create or reflect only
      an
      administrative relationship between independent contracting
      parties.

     

    SECTION
      12.04 Reliance
      by Agent.
      The
      Agent shall be entitled to rely upon, and shall not incur any liability for
      relying upon, any notice, request, certificate, consent, statement, instrument,
      document or other writing (including any electronic message, Internet or
      intranet website posting or other distribution) believed by it to be genuine
      and
      to have been signed, sent or otherwise authenticated by the proper person.
      The
      Agent also may rely upon any statement made to it orally or by telephone and
      believed by it to have been made by the proper person, and shall not incur any
      liability for relying thereon. The Agent may consult with legal counsel (who
      may
      be counsel for the Company), independent accountants and other experts selected
      by it, and shall not be liable for any action taken or not taken by it in
      accordance with the advice of any such counsel, accountants or
      experts.

    
      
         

      

      
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    SECTION
      12.05 Delegation
      of Duties.
      The
      Agent may perform any and all of its duties and exercise its rights and powers
      hereunder or under any other Financing Document by or through, or delegate
      any
      and all such rights and powers to, any one or more sub-agents appointed by
      the
      Agent. The Agent and any such sub-agent may perform any and all of its duties
      and exercise its rights and powers by or through their respective Related
      Parties. The exculpatory provisions of this Article shall apply to any such
      sub-agent and to the Related Parties of the Agent and any such sub-agent, and
      shall apply to their respective activities in connection with the syndication
      of
      the credit facilities provided for herein as well as activities as
      Agent.

     

    SECTION
      12.06 Resignation
      of Agent.
      The
      Agent may at any time give notice of its resignation to the Noteholders and
      the
      Company. Upon receipt of any such notice of resignation, the Required Holders
      shall have the right, in consultation with the Company, to appoint a successor.
      If no such successor shall have been so appointed by the Required Holders and
      shall have accepted such appointment within 30 days after the retiring
      Agent gives notice of its resignation, then the retiring Agent may on behalf
      of
      the Noteholders, appoint a successor Agent provided that if the Agent shall
      notify the Company and the Noteholders that no person has accepted such
      appointment, then such resignation shall nonetheless become effective in
      accordance with such notice and (1) the retiring Agent shall be discharged
      from its duties and obligations hereunder and under the other Financing
      Documents (except that in the case of any collateral security held by the Agent
      on behalf of the Noteholders under any of the Financing Documents, the retiring
      Agent shall continue to hold such collateral security as nominee until such
      time
      as a successor Agent is appointed) and (2) all payments, communications and
      determinations provided to be made by, to or through an Agent shall instead
      be
      made by or to each Noteholder directly, until such time as the Required Holders
      appoint a successor Agent as provided for above in this paragraph. Upon the
      acceptance of a successor’s appointment as Agent hereunder, such successor shall
      succeed to and become vested with all of the rights, powers, privileges and
      duties of the retiring (or retired) Agent, and the retiring Agent shall be
      discharged from all of its duties and obligations hereunder or under the other
      Financing Documents (if not already discharged therefrom as provided above
      in
      this paragraph). The amounts payable by the Company to a successor Agent shall
      be the same as those payable to its predecessor hereunder and under the other
      Financing Documents, unless otherwise agreed between the Company and such
      successor. After the retiring Agent’s resignation hereunder and under the other
      Financing Documents, the provisions of this Article XII
      and
Section 14.03
      shall
      continue in effect for the benefit of such retiring Agent, its sub-agents and
      their respective Related Parties in respect of any actions taken or omitted
      to
      be taken by any of them while the retiring Agent was acting as
      Agent.

     

    SECTION
      12.07 Non-Reliance
      on Agent and Other Purchasers.
      Each
      Purchaser acknowledges that it has, independently and without reliance upon
      the
      Agent or any other Purchaser and based on such documents and information as
      it
      has deemed appropriate, made its own credit analysis and decision to enter
      into
      this Agreement. Each Purchaser also acknowledges that it will, independently
      and
      without reliance upon the Agent or any other Purchaser and based on such
      documents and information as it shall from time to time deem appropriate,
      continue to make its own decisions in taking or not taking action under or
      based
      upon this Agreement, any other Financing Document or any related agreement
      or
      any document furnished hereunder or thereunder.

    
      
         

      

      
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    ARTICLE
      XIII

     

    LEGAL
      DEFEASANCE

     

    SECTION
      13.01 Legal
      Defeasance. The
      Company may, at its option and at any time, elect to have the obligations of
      the
      Issuers and of the Guarantors discharged with respect to the outstanding Notes
      on a date whereby the conditions set forth in Section
      13.02
      are
      satisfied (hereinafter, “Legal
      Defeasance”);
      provided
      that all
      outstanding Notes shall be called for redemption pursuant to Paragraph 3 of
      the Notes or otherwise have a Stated Maturity Date, as applicable, no more
      than
      730 days following the date of such Legal Defeasance. For this purpose,
      such Legal Defeasance means that the Issuers will be deemed on the date thereof
      to have paid and discharged the entire indebtedness represented by the
      outstanding Notes and to have satisfied all their other obligations under such
      Notes and this Agreement (and the Trustee, at the expense of the Issuers, shall,
      subject to Section
      13.04,
      execute
      instruments in form and substance reasonably satisfactory to the Required
      Holders acknowledging the same), except for the following which shall survive
      until otherwise terminated or discharged hereunder: (1) the rights of
      Noteholders to receive solely from the trust funds described in Section
      13.02
      and as
      more fully set forth in Section
      13.02,
      payments in respect of the principal of, premium, if any, and interest on such
      Notes when such payments are due hereunder and under the Notes, (2) the
      Issuers’ obligations (other than payment obligations) with respect to such Notes
      under Article
      X
      and
Section
      6.03(a),
      (3) this Article
      XIII
      and (4)
Section
      14.03.

     

    Concurrently
      with any Legal Defeasance, the Company may, at its further option, cause to
      be
      terminated, as of the date on which such Legal Defeasance occurs, all of the
      obligations under any or all of the Guarantees and obtain the release of the
      Guarantees of any or all Guarantors. In order to exercise such option regarding
      a Guarantee, the Issuers shall provide the Noteholders with written notice
      of
      their desire to terminate such Guarantee prior to the delivery of the opinions
      of counsel referred to in Section
      13.02.

     

    SECTION
      13.02 Conditions
      to Legal Defeasance. The
      following shall be the conditions to application of Section
      13.01
      to the
      outstanding Notes:

     

    (a) the
      Company must irrevocably deposit with the Trustee, in trust, for the benefit
      of
      the Noteholders, cash in dollars, U.S. Government Obligations or a combination
      thereof in such amounts as will be sufficient, in the opinion of a nationally
      recognized firm of independent public accountants (such opinion to be addressed
      and delivered to the Trustee, and upon which the Trustee shall have no liability
      in relying), to pay the principal, premium, if any, and interest on the Notes
      outstanding on the Stated Maturity Date or on the applicable optional redemption
      date, as the case may be, and the Company must specify whether such Notes are
      being defeased to maturity or to a particular redemption date;

     

    (b) the
      Issuers shall have delivered to the Noteholders and the Trustee an opinion
      of
      counsel in the United States confirming that (a) the Issuers have received
      from, or there has been published by, the Internal Revenue Service a ruling
      or
      (b) since the First Closing Date, there has been a change in the applicable
      federal income tax law, in either case to the effect that, and based thereon
      such opinion of counsel shall confirm that, the Noteholders will not recognize
      income, gain or loss for federal income tax purposes as a result of such Legal
      Defeasance and will be subject to federal income tax on the same amounts, in
      the
      same manner and at the same times as would have been the case if such Legal
      Defeasance had not occurred;

    
      
         

      

      
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    (c) no
      Default or Event of Default shall have occurred and be continuing on the date
      of
      such deposit (other than a Default or Event of Default resulting from the
      borrowing of funds to be applied to such deposit) or, insofar as Events of
      Default from bankruptcy or insolvency events are concerned, at any time in
      the
      period ending on the 181st day after the date of deposit;

     

    (d) such
      Legal Defeasance will not result in a breach or violation of, or constitute
      a
      default under, any material agreement or instrument (other than the Financing
      Documents) to which Holdings or any of its Subsidiaries is a party or by which
      Holdings or any of its Subsidiaries is bound;

     

    (e) the
      Issuers must have delivered to the Noteholders and the Trustee an opinion of
      counsel to the effect that, assuming no intervening bankruptcy of any Issuer
      or
      any Guarantor between the date of deposit and the 181st day following the
      deposit, and assuming that no Noteholder is an “insider” of an Issuer under
      applicable Bankruptcy Law, after the 181st day following the deposit, the trust
      funds will not be subject to the effect of applicable Bankruptcy
      Law;

     

    (f) the
      Company must deliver to the Noteholders and the Trustee a certificate of a
      Responsible Officer stating that the deposit was not made by the Company with
      the intent of preferring the Noteholders over the other creditors of the Issuers
      with the intent of defeating, hindering, delaying or defrauding creditors of
      the
      Issuers or others; and

     

    (g) the
      Issuers must deliver to the Noteholders and the Trustee a certificate of a
      Responsible Officer and an opinion of counsel, each stating that all conditions
      precedent provided for relating to the Legal Defeasance have been complied
      with.

     

    SECTION
      13.03 Deposited
      Money and U.S. Government Obligations To Be Held in Trust. All
      money
      and U.S. Government Obligations (including the proceeds thereof) deposited
      with
      the Trustee pursuant to Section
      13.02
      in
      respect of the outstanding Notes shall be held in trust and applied by the
      Trustee, in accordance with the provisions of such Notes and this Agreement,
      to
      the payment directly to the Noteholders, of all sums due and to become due
      thereon in respect of principal, premium, if any, and accrued interest, but
      such
      money need not be segregated from other funds except to the extent required
      by
      law.

     

    The
      Issuers shall (on a joint and several basis) pay and indemnify the Trustee
      against any tax, fee or other charge imposed on or assessed against the U.S.
      Government Obligations deposited pursuant to Section
      13.02
      or the
      principal, premium, if any, and interest received in respect thereof other
      than
      any such tax, fee or other charge which by law is for the account of the
      Noteholders.

     

    Anything
      in this Article XIII
      to the
      contrary notwithstanding, the Trustee shall deliver or pay to the Company from
      time to time upon a request of Holdings or the Company any money or U.S.
      Government Obligations held by it as provided in Section
      13.02
      which,
      in the opinion of a nationally recognized firm of independent public accountants
      expressed in a written certification thereof delivered to the Trustee, are
      in
      excess of the amount thereof which would then be required to be deposited to
      effect an equivalent Legal Defeasance.

     

    SECTION
      13.04 Reinstatement. If
      the
      Trustee is unable to apply any money or U.S. Government Obligations in
      accordance with Section
      13.01
      by
      reason of any legal proceeding or by reason of any order or judgment of any
      court or governmental authority enjoining, restraining or otherwise prohibiting
      such application, each Issuer’s obligations under the Financing Documents shall
      be revived and reinstated as though no deposit had occurred pursuant to this
      Article XIII
      until
      such time as the Trustee is permitted to apply all such money or U.S. Government
      Obligations in accordance with this Agreement and the Notes.

    
      
         

      

      
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    ARTICLE
      XIV

     

    MISCELLANEOUS

     

    SECTION
      14.01 Notices.
      Except
      in the case of notices and other communications expressly permitted to be given
      by telephone all notices and other communications provided for herein shall
      be
      in writing and shall be delivered by hand or overnight courier service, mailed
      by certified or registered mail or sent by telecopier or e-mail as
      follows:

     

    (i)   
      If
      to any
      Issuer, to the Company at:

     

    Digital
      Domain, Inc.

    300
      Rose
      Avenue

    Venice,
      California 90291

    Attention:
      Joseph M. Gabriel, Esq.

    Telecopier
      No.: 310-314-2943

    E-mail:
      jgabriel@d2.com

     

    with
      a
      copy to (which shall not constitute notice):

     

    Wyndcrest
      DD Holdings, Inc.

    150
      U.S.
      Highway One, Suite 500

    Jupiter,
      FL 33477

    Attention:
      John C. Textor

    Telecopier
      No.: 561-277-6446

    E-mail:
      jtextor@wyndcrest.com

     

    with
      a
      copy to (which shall not constitute notice):

     

    Sullivan
      & Triggs, LLP

    1230
      Montana Avenue, Suite 201

    Santa
      Monica, California 90403

    Attention:
      D. Thomas Triggs

    Fax:
      (310) 451-8303

    E-mail:
      ttriggs@sullivantriggs.com

     

    or
      at
      such other address as any such Issuer shall have specified to the Noteholders
      and the Agent in writing.

    
      
         

      

      
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    (ii)  
      If
      to the
      Agent, to it at:

     

    FMP
      Agency Services, LLC

    21
      Custom
      House Street; 10th Floor

    Boston,
      MA 02110

    Attention:
      William J. Kennedy Jr.

    Telecopier
      No.: (617) 412-2799

    E-mail:
      wkennedy@falconinvestments.com

     

    or
      at
      such other address as any such Agent shall have specified to the Company in
      writing.

     

    (iii)  
      If
      to a
      Purchaser or its Nominee: 

     

    To
      such
      Purchaser or its nominee at the address specified for such communications in
      Schedule
      A-1
      or
A-2
      (or at
      such other address as such Purchaser shall have specified to the Company in
      writing), with a copy to (which shall not constitute notice):

     

    Cahill
      Gordon & Reindel LLP

    80
      Pine
      Street

    New
      York,
      New York 10005

    Attention:
      John Papachristos, Esq. 

    Fax:
      (212) 269-5420

    E-mail:
      jpapachristos@cahill.com

     

    or
      at
      such other address as such Purchaser or its nominee shall have specified to
      the
      Company in writing.

     

    (iv) 
      If
      to any
      other Holder:

     

    To
      such
      Holder at the address of such Holder appearing in the Security Register or
      such
      other address as such other Holder shall have specified to the Company or
      Holdings in writing. 

     

    Notices
      sent by hand or overnight courier service, or mailed by certified or registered
      mail, shall be deemed to have been given when received; notices sent by
      telecopier shall be deemed to have been given when sent (except that, if not
      given during normal business hours for the recipient, shall be deemed to have
      been given at the opening of business on the next business day for the
      recipient), and notices sent by e-mail shall be deemed to have been given when
      the recipient thereof shall have confirmed receipt thereof.

     

    SECTION
      14.02 Waivers;
      Amendment.

     

    (a) No
      failure or delay by any Holder in exercising any right or power hereunder or
      under any other Financing Document shall operate as a waiver thereof, nor shall
      any single or partial exercise of any such right or power, or any abandonment
      or
      discontinuance of steps to enforce such a right or power, preclude any other
      or
      further exercise thereof or the exercise of any other right or power. The rights
      and remedies of each Holder hereunder and under the other Financing Documents
      are cumulative and are not exclusive of any rights or remedies that they would
      otherwise have. No waiver of any provision of any Financing Document or consent
      to any departure by any Issuer therefrom shall in any event be effective unless
      the same shall be permitted by Section
      14.02(b),
      and
      then such waiver or consent shall be effective only in the specific instance
      and
      for the purpose for which given. 

    
      
         

      

      
        -101-

        
          

        

      

      
         

      

    

     

    (b) This
      Agreement and the Notes may be amended, and the observance of any term hereof
      and thereof may be waived (either retroactively or prospectively), with (and
      only with) the written consent of Holdings, the Company and the Required Holders
      (provided
      that any
      amendment or waiver which relates to (x) the Purchased Preferred Stock
      shall require the written consent of Holdings and the holders of a majority
      of
      the outstanding shares of Purchased Preferred Stock and/or shares of Common
      Stock into which they are converted (with Purchased Preferred Stock counted
      on
      an as-converted basis) or (y) the Warrants and/or Warrant Shares shall require
      the written consent of Holdings and the holders of a majority of the outstanding
      Warrants and/or Warrant Shares (with Warrants counted on an as-exercised basis);
      provided,
      however, that
      no
      such amendment or waiver may, without the prior written consent of each
      Noteholder affected thereby (or each Purchaser if prior to the Second Closing
      Date) (i) subject any Noteholder to any additional obligation,
      (ii) reduce the principal of or change the rate of interest on any Note,
      (iii) postpone the date fixed for any payment of principal of (or premium,
      if any) or interest on any Note, (iv) change the percentage of the
      aggregate principal amount of the Notes the Noteholders of which shall be
      required to consent or take any other action under this Section 14.02(b)
      or any
      other provision of this Agreement, (v) amend or waive the provisions of
      (A) Section
      6.15
      following the occurrence of a Change in Control or (B) Sections
      6.16
      and
7.06
      following the maturity of the Company’s obligation to make an Excess Proceeds
      Offer and in the case of each of clauses (A) and (B), any of the definitions
      to
      the extent used in such Sections, (vi) reduce the premium payable upon any
      redemption or repurchase of the Notes or change the time at which any Note
      may
      be redeemed or repurchased, (vii) impair the right of any Noteholder to
      receive payment of principal, premium, if any, and interest on such Noteholder’s
      Notes on or after the due dates therefore or to institute suit for the
      enforcement of any payment on or with respect to such Noteholder’s Notes,
      (viii) adversely affect the ranking of the Notes, (ix) change the
      currency in which amounts due under the Notes are payable, (x) release any
      Guarantor from its Guarantee of the Notes other than in accordance with the
      terms of this Agreement or (xi) release all or a substantial portion of the
      Collateral from the Liens of the Security Documents or alter the relative
      priorities of the Obligations entitled to the Liens of the Security Documents.
      No amendment or waiver of this Agreement will extend to or affect any
      obligation, covenant, agreement, Default or Event of Default not expressly
      amended or waived or thereby impair any right consequent thereon. As used
      herein, the term this “Agreement” and references thereto shall mean this
      Agreement as it may from time to time be amended or supplemented.

     

    SECTION
      14.03 Expenses;
      Indemnity.

     

    (a) Expenses.
      The
      Issuers agree, jointly and severally, to pay, promptly upon demand:

     

    (i) all
      reasonable out-of-pocket costs and expenses incurred by the Purchasers and
      the
      Holders, including the reasonable fees, charges and disbursements of Advisors
      for the Purchasers and the Holders in connection with the preparation, execution
      and delivery of the Financing Documents and relating to any actual or proposed
      amendment, supplement or waiver of any of the Financing Documents (whether
      or
      not the transactions contemplated hereby or thereby shall be consummated);
      provided
      that the
      Issuers shall not be liable for such costs and expenses incurred prior to the
      First Closing Date to the extent such pre-First Closing Date expenses exceed
      $300,000; and, provided
      further,
      that
      the Issuers shall not be liable for such costs and expenses incurred in
      connection with the Second Closing Transactions prior to the Second Closing
      Date
      to the extent such costs and expenses exceed $250,000;

    
      
         

      

      
        -102-

        
          

        

      

      
         

      

    

     

    (ii) all
      reasonable out-of-pocket costs and expenses incurred by the Purchasers and
      the
      Holders, including the reasonable out-of-pocket fees, charges and disbursements
      of Advisors for the Purchasers and the Holders, in connection with the
      enforcement or protection of their rights under the Financing Documents,
      including their rights under this Section 14.03(a),
      or in
      connection with the Purchased Securities issued hereunder, including all such
      costs and expenses incurred during any workout, restructuring or negotiations
      in
      respect of the Purchased Securities; and

     

    (iii) all
      documentary and similar taxes and charges in respect of the Financing
      Documents.

     

    For
      purposes of this Section
      14.03(a),
      “Advisors”
shall
      mean legal counsel (including local counsel), auditors, accountants,
      consultants, appraisers or other advisors; provided
      that in
      the case of clause (i), the engagement of any Advisors other than legal counsel
      (including local counsel) or the engagement of more than one firm of legal
      counsel (other than local counsel) shall be subject to approval by the Company
      (which approval shall not be unreasonably withheld).

     

    (b) Indemnification.
      The
      Issuers agree, jointly and severally, to indemnify the Purchasers and Holders,
      each of their Affiliates, and each of their respective partners, controlling
      persons, directors, officers, trustees, employees and agents (each such person
      being called an “Indemnitee”)
      against, and to hold each Indemnitee harmless from, all and any and all losses,
      claims, damages, liabilities, penalties, judgments, suits and related reasonable
      out-of-pocket expenses, including reasonable counsel fees, charges and
      disbursements, incurred by or asserted against any Indemnitee arising out of,
      in
      any way connected with, or as a result of (i) the execution, delivery,
      performance, administration or enforcement of the Financing Documents,
      (ii) any actual or proposed use of the proceeds of the Purchased
      Securities, (iii) any actual or alleged presence or Release or threatened
      Release of Hazardous Materials, on, at, under or from any property owned, leased
      or operated by Holdings or any of its Subsidiaries at any time, or any
      Environmental Claim related in any way to Holdings or any of its Subsidiaries,
      or (iv) any actual or prospective claim, litigation, investigation or proceeding
      relating to any of the foregoing, whether based on contract, tort or any other
      theory, whether brought by a third party or by Holdings or any of its
      Subsidiaries, and regardless of whether any Indemnitee is a party thereto;
      provided
      that
      such indemnity shall not, as to any Indemnitee, be available to the extent
      that
      such losses, claims, damages, liabilities, penalties, judgments, suits or
      related expenses are determined by a court of competent jurisdiction by final
      and nonappealable judgment to have resulted (i) from a breach by such
      Indemnitee of its obligations under the Financing Documents, or
      (ii) primarily from the gross negligence or willful misconduct of such
      Indemnitee or its agents or representatives.

     

    (c) Reimbursement
      by Holders.
      To the
      extent that any Issuer for any reason fails to indefeasibly pay any amount
      required under paragraph (a) or (b) of this Section
      14.03
      to be
      paid by it to the Agent (or any sub-agent thereof), each Holder severally agrees
      to pay to the Agent (or any such sub-agent), such Holder’s pro rata
      share
      (determined as of the time that the applicable unreimbursed expense or indemnity
      payment is sought) of such unpaid amount; provided
      that the
      unreimbursed expense or indemnified loss, claim, damage, liability, penalty,
      judgment, suit or related expense, as the case may be, was incurred by or
      asserted against the Agent (or any such sub-agent), or against any Related
      Party
      of any of the foregoing acting for the Agent (or any such sub-agent), in
      connection with such capacity. The obligations of the Holders under this
      paragraph (c) are subject to the provisions of Section 14.05.
      For
      purposes hereof, a Holder’s “pro rata
      share”
shall be determined based upon its share of the sum of the total Purchased
      Securities at the time.

    
      
         

      

      
        -103-

        
          

        

      

      
         

      

    

     

    (d) Waiver
      of Consequential Damages, Etc.
      To the
      fullest extent permitted by applicable Requirements of Law, no Issuer shall
      assert, and each Issuer hereby waives, any claim against any Indemnitee, on
      any
      theory of liability, for special, indirect, consequential or punitive damages
      (as opposed to direct or actual damages) arising out of, in connection with,
      or
      as a result of, this Agreement, any other Financing Document or any agreement
      or
      instrument contemplated hereby, the transactions contemplated hereby or thereby,
      any Purchased Security or the use of the proceeds thereof. No Indemnitee
      referred to in paragraph (b) above shall be liable for any damages arising
      from
      the use by unintended recipients of any information or other materials
      distributed by it through telecommunications, electronic or other information
      transmission systems in connection with this Agreement or the other Financing
      Documents or the transactions contemplated hereby or thereby.

     

    (e) Survival.
      The
      provisions of this Section 14.03
      shall
      remain operative and in full force and effect regardless of the expiration
      of
      the term of this Agreement, the consummation of the transactions contemplated
      hereby, the repayment of the Notes, the invalidity or unenforceability of any
      term or provision of this Agreement or any other Financing Document, or any
      investigation made by or on behalf of any Purchaser or Noteholder. All amounts
      due under this Section 14.03
      shall be
      payable on written demand therefor accompanied by reasonable documentation
      with
      respect to any reimbursement, indemnification or other amount
      requested.

     

    SECTION
      14.04 Successors
      and Assigns.
      The
      provisions of this Agreement shall be binding upon and inure to the benefit
      of
      the parties hereto and their respective successors and assigns permitted hereby
      (including, without limitation, each subsequent Holder of a Purchased Security)
      except that no Issuer may assign or otherwise transfer any of its rights or
      obligations hereunder without the prior written consent of each Holder (and
      any
      attempted assignment or transfer by any Issuer without such consent shall be
      null and void). Nothing in this Agreement, express or implied, shall be
      construed to confer upon any person (other than the parties hereto, their
      respective successors and assigns permitted hereby and, to the extent expressly
      contemplated hereby, the other Indemnitees) any legal or equitable right, remedy
      or claim under or by reason of this Agreement.

     

    SECTION
      14.05 Survival
      of Agreement.
      All
      covenants, agreements, representations and warranties made by the Issuers in
      the
      Financing Documents and in the certificates or other instruments delivered
      in
      connection with or pursuant to this Agreement or any other Financing Document
      shall be considered to have been relied upon by the other parties hereto and
      shall survive the execution and delivery of the Financing Documents and the
      issuance of any Purchased Securities, regardless of any investigation made
      by
      any such other party or on its behalf and notwithstanding that the Purchasers
      or
      Holders may have had notice or knowledge of any Default or incorrect
      representation or warranty at the time any purchase of Purchased Securities
      is
      made hereunder, and shall continue in full force and effect as long as any
      Purchased Security or any fee or any other amount payable under this Agreement
      or any other Financing Document is outstanding and unpaid. The provisions of
      Section
      14.03
      shall
      survive and remain in full force and effect regardless of the consummation
      of
      the transactions contemplated hereby, the repayment of the Purchased Securities,
      the payment of the Obligations or the termination of this Agreement or any
      provision hereof.

     

    SECTION
      14.06 Counterparts;
      Integration; Effectiveness.
      This
      Agreement may be executed in counterparts (and by different parties hereto
      in
      different counterparts), each of which shall constitute an original, but all
      of
      which when taken together shall constitute a single contract. This Agreement
      and
      the other Financing Documents constitute the entire contract among the parties
      relating to the subject matter hereof and thereof and supersede any and all
      previous agreements and understandings, oral or written, relating to the subject
      matter hereof and thereof. This Agreement shall become effective when it shall
      have been executed by the Agent and each of the Purchasers and when each of
      the
      Agent and the Purchasers shall have received counterparts hereof which, when
      taken together, bear the signatures of each of the other parties hereto, and
      thereafter shall be binding upon and inure to the benefit of the parties hereto
      and, to the extent provided herein, their respective successors and assigns.
      Delivery of an executed counterpart of a signature page of this Agreement by
      telecopy shall be as effective as delivery of a manually executed counterpart
      of
      this Agreement.

    
      
         

      

      
        -104-

        
          

        

      

      
         

      

    

     

    SECTION
      14.07 Severability.
      Any
      provision of this Agreement held to be invalid, illegal or unenforceable in
      any
      jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
      such invalidity, illegality or unenforceability without affecting the validity,
      legality and enforceability of the remaining provisions hereof; and the
      invalidity of a particular provision in a particular jurisdiction shall not
      invalidate such provision in any other jurisdiction.

     

    SECTION
      14.08 Governing
      Law; Jurisdiction; Consent to Service of Process.

     

    (a) This
      Agreement shall be construed in accordance with and governed by the law of
      the
      State of New York, without regard to conflicts of law principles that would
      require the application of the laws of another jurisdiction.

     

    (b) Each
      Issuer hereby irrevocably and unconditionally submits, for itself and its
      property, to the nonexclusive jurisdiction of the Supreme Court of the State
      of
      New York sitting in New York County and of the United States District Court
      of
      the Southern District of New York, and any appellate court from any thereof,
      in
      any action or proceeding arising out of or relating to any Financing Document,
      or for recognition or enforcement of any judgment, and each of the parties
      hereto hereby irrevocably and unconditionally agrees that all claims in respect
      of any such action or proceeding may be heard and determined in such New York
      State or, to the extent permitted by law, in such federal court. Each of the
      parties hereto 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. Nothing in this Agreement
      or
      any other Financing Document shall affect any right that the Purchasers or
      any
      Holder may otherwise have to bring any action or proceeding relating to this
      Agreement or any other Financing Document against any Issuer or its properties
      in the courts of any jurisdiction.

     

    (c) Each
      Issuer hereby irrevocably and unconditionally waives, to the fullest extent
      it
      may legally and effectively do so, any objection which it may now or hereafter
      have to the laying of venue of any suit, action or proceeding arising out of
      or
      relating to this Agreement or any other Financing Document in any court referred
      to in Section
      14.08(b).
      Each of
      the parties hereto hereby irrevocably waives, to the fullest extent permitted
      by
      law, the defense of an inconvenient forum to the maintenance of such action
      or
      proceeding in any such court.

     

    (d) Each
      party to this Agreement irrevocably consents to service of process in any action
      or proceeding arising out of or relating to any Financing Document, in the
      manner provided for notices (other than telecopy and email) in Section 14.01.
      Nothing
      in this Agreement or any other Financing Document will affect the right of
      any
      party to this Agreement to serve process in any other manner permitted by
      applicable law.

     

    SECTION
      14.09 Waiver
      of Jury Trial.
      Each
      Issuer hereby waives, to the fullest extent permitted by applicable Requirements
      of Law, any right it may have to a trial by jury in any legal proceeding
      directly or indirectly arising out of or relating to this Agreement, any other
      Financing Document or the transactions contemplated hereby (whether based on
      contract, tort or any other theory). Each party hereto (a) certifies that
      no representative, agent or attorney of any other party has represented,
      expressly or otherwise, that such other party would not, in the event of
      litigation, seek to enforce the foregoing waiver and (b) acknowledges that
      it and the other parties hereto have been induced to enter into this Agreement
      by, among other things, the mutual waivers and certifications in this
      Section.

    
      
         

      

      
        -105-

        
          

        

      

      
         

      

    

     

    SECTION
      14.10 Headings.
      Article
      and Section headings and the Table of Contents used herein are for convenience
      of reference only, are not part of this Agreement and shall not affect the
      construction of, or be taken into consideration in interpreting, this
      Agreement.

     

    SECTION
      14.11 Confidentiality.
      Each
      Purchaser and Holder agrees to maintain the confidentiality of, and to not
      use,
      the Information (as defined below), except that Information may be disclosed
      (a) to its Affiliates and to its and its Affiliates’ respective partners,
      directors, officers, employees and agents, including accountants, legal counsel
      and other Advisors (it being understood that the persons to whom such disclosure
      is made will be informed of the confidential nature of such Information and
      instructed to keep such Information confidential pursuant to the terms hereof),
      (b) to the extent requested by any regulatory authority, (c) to the
      extent required by applicable Requirements of Law or by any subpoena or similar
      legal process, (d) to any other party to this Agreement, (e) in
      connection with the exercise of any remedies hereunder or under any other
      Financing Document or any suit, action or proceeding relating to this Agreement
      or any other Financing Document or the enforcement of rights hereunder or
      thereunder, (f) subject to an agreement containing provisions substantially
      the same as those of this Section 14.11,
      to
      (i) any transferee of, or any prospective transferee of, any Purchased
      Securities, (ii) any actual or prospective counterparty (or its advisors)
      to any swap or derivative transaction relating to any Issuer or any Purchased
      Security or (iii) any rating agency for the purpose of obtaining a credit
      rating applicable to any Purchased Security or the Issuers, (g) with the
      consent of the Company, (h) to the extent such Information (x) is publicly
      available at the time of disclosure or becomes publicly available other than
      as
      a result of a breach of this Section or (y) becomes available to such Purchaser
      or Holder on a nonconfidential basis from a source other than Holdings or any
      of
      its Subsidiaries; provided
      that
      such source is not known by such disclosing party to be bound by confidentiality
      obligations to the Company or (i) to a person that is an investor or
      prospective investor in such Holder or an affiliated investment vehicle that
      agrees that its access to information regarding Holdings and its Subsidiaries
      and the Purchased Securities is solely for purposes of evaluating an investment
      in such Holder or affiliated investment vehicle. For the purposes of this
      Section, “Information”
shall
      mean all information received from Holdings or any of its Subsidiaries relating
      to Holdings or any of its Subsidiaries or their business, that is clearly
      identified or reasonably identifiable at the time of delivery as confidential,
      other than any such information that is available to the Purchasers or any
      Holder on a nonconfidential basis prior to disclosure by Holdings or any of
      its
      Subsidiaries. Any person required to maintain the confidentiality of Information
      as provided in this Section shall be considered to have complied with its
      obligation to do so if such person has exercised the same degree of reasonable
      care to maintain the confidentiality of such Information as such person would
      reasonably accord to its own confidential information.

     

    SECTION
      14.12 Obligations
      Absolute.
      To the
      fullest extent permitted by applicable Requirement of Law, all obligations
      of
      the Issuers hereunder shall be absolute and unconditional irrespective
      of:

     

    (a) any
      bankruptcy, insolvency, reorganization, arrangement, readjustment, composition,
      liquidation or the like of any Issuer;

    
      
         

      

      
        -106-

        
          

        

      

      
         

      

    

     

    (b) any
      lack
      of validity or enforceability of any Financing Document or any other agreement
      or instrument relating thereto against any Issuer (other than based upon a
      failure of consideration with respect thereto);

     

    (c) any
      change in the time, manner or place of payment of, or in any other term of,
      all
      or any of the Obligations, or any other amendment or waiver of or any consent
      to
      any departure from any Financing Document or any other agreement or instrument
      relating thereto, as permitted by the terms thereof;

     

    (d) any
      exchange, release or non-perfection of any other Collateral, or any release
      or
      amendment or waiver of or consent to any departure from any guarantee, for
      all
      or any of the Obligations;

     

    (e) any
      exercise or non-exercise, or any waiver, of any right, remedy, power or
      privilege under or in respect hereof or any Financing Document; or

     

    (f) any
      other
      circumstances which might otherwise constitute a defense available to, or a
      discharge of, the Issuers, other than as provided in any Financing Document.
      

     

    SECTION
      14.13 Certain
      Rights and Obligations Among Noteholders.
      If, at
      any time or times, a Noteholder shall receive a prepayment on its Note (whether
      by voluntary payment, setoff or otherwise) which is greater than its Pro Rata
      Share, it shall notify the other Noteholders of the amount and date of such
      prepayment. If all other Noteholders shall not have received their Pro Rata
      Share of such prepayment, the Noteholder giving such notice shall remit to
      the
      other Noteholders such amount as is necessary to distribute such prepayment
      or
      proceeds, as applicable, among all Noteholders in accordance with their
      respective Pro Rata Shares. The amount of any such remittance shall be credited
      to the Obligations of the Noteholder to whom it is remitted, and shall not
      be
      credited to the Obligations of the remitting Noteholder. The provisions of
      this
Section
      14.13
      are
      solely for the benefit of the Noteholders, and neither the Issuers nor any
      other
      Person other than a Noteholder shall have any rights with respect to or be
      entitled to enforce this Section.

     

    SECTION
      14.14 Absence
      of Personal Liability.
      Each of
      the Purchasers, each of the Issuers and the Agent hereby expressly acknowledge
      and agree that with respect to each Officers’ Certificate, Compliance
      Certificate and each other certificate required to be delivered pursuant to
      or
      in connection with this Agreement or any other Financing Document, the person
      signing such certificate shall be deemed in so acting to be acting solely in
      a
      representative capacity on behalf of the applicable Issuer or other entity,
      and
      no person signing such certificate shall have any personal civil liability
      with
      respect thereto or as a consequence thereof, except for actions by such person
      involving fraud or willful misconduct.

     

    SECTION
      14.15 Acknowledgment.
      Each
      Issuer hereby expressly (i) acknowledges the terms of this Agreement, (ii)
      ratifies and affirms its obligations under the other Financing Documents
      executed by such Issuer and (iii) acknowledges its continued liability under
      all
      such Financing Documents and agrees such Financing Documents remain in full
      force and effect, including with respect to its obligations thereunder as
      modified by this Agreement. 

     

    [Signature
      Pages Follow]

     

    
      
        
        

      

      
        -107-

        
          

        

      

      
        
        

      

    


    IN
      WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
      executed by their respective authorized officers as of the day and year first
      above written.

    
      	 	 	 
	 	
              DIGITAL
                DOMAIN, INC. 

            
	 
 	 
 	 
 
	
            	By:  	
            
	 	
              

              Name: 

              Title: 

            
	 	
            


    

    
      	 	 	 
	 	
              WYNDCREST
                DD HOLDINGS, INC.

            
	 
 	 
 	 
 
	
            	By:  	
            
	 	
              

              Name: 

              Title:

            
	 	
            


    

    
      	 	 	 
	 	
              D2
                SOFTWARE, INC.

            
	 
 	 
 	 
 
	
            	By:  	
            
	 	
              

              Name: 

              Title:

            
	 	
            


    

    
      	 	 	 
	 	
              WYNDCREST
                UK HOLDINGS LIMITED

            
	 
 	 
 	 
 
	
            	By:  	
            
	 	
              

              Name: 

              Title:

            
	 	
            


    

    
      	 	 	 
	 	
              THE
                FOUNDRY VISIONMONGERS LTD.

            
	 
 	 
 	 
 
	
            	By:  	
            
	 	
              

              Name:

              Title:

            


    

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    
      	 	 	
               

            
	 	
              FALCON
                MEZZANINE PARTNERS II, LP, 

                     
                a Delaware limited partnership, as Purchaser

               

              By: 
                Falcon Mezzanine Investments II, LLC, 

                     
                a Delaware limited liability company, its General
                Partner

            
	 
 	 
 	 
 
	
            	By:  	
            
	 	
              

              Name: 

              Title:

            
	 	
            


    

     

    
 

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    

      	 	 	 
	 	
              FMP
                AGENCY SERVICES, LLC, as Agent

            
	 
 	 
 	 
 
	
            	By:  	
            
	 	
              

              Name:

              Title: 

            
	 	
            


    

     

     

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    


    SCHEDULE
      A-1


    INFORMATION
      RELATING TO THE PURCHASERS AT FIRST CLOSING DATE

     

    
      	
              Purchaser

            	 	
              Principal

              Amount
                of

              Notes
                to be

              Purchased

            	 	
              Purchase

              Price
                for

              Notes

            	 	
              Number
                of

              Warrants

              to
                be

              Purchased

            	 	
              Purchase

              Price

              for

              Warrants

            	 	
              Number

              of

              Purchased

              Preferred

              Stock

              to
                be

              Purchased

            	 	
              Purchase

              Price
                for

              Purchased

              Preferred

              Stock

            	 	
              Aggregate

              Purchase

              Price

              for
                the Initial

              Purchased

              Securities

            	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	
              Falcon
                Mezzanine

              Partners
                II, LP

              21
                Custom House Street

              10th
                Floor

              Boston,
                MA 02110

              Attention:
                Rafael Fogel

              Fax:
                (212) 300-0299

              rfogel@falconinvestments.com

            	 	
              $

            	
              12,500,000

            	 	
              $

            	
              11,148,892.29

            	 	 	
              7,323,077

            	 	
              $

            	
              1,351,107.71

            	 	 	
              1,000,000

              shares

            	 	
              $

            	
              1,000,000

            	 	
              $

            	
              13,500,000

            	 


    

     

     

    
      
        
        

      

      
        A-1-1

        
          

        

      

      
        
        

      

    


    SCHEDULE
      A-2


    INFORMATION
      RELATING TO THE PURCHASERS AT SECOND CLOSING DATE

     

    
      	
              Purchaser

            	 	
              Principal

              Amount
                of

              Notes
                to be

              Purchased

            	 	
              Purchase

              Price
                for

              Notes

            	 	
              Number
                of

              Warrants

              to
                be

              Purchased

            	 	
              Purchase

              Price

              for

              Warrants

            	 	
              Aggregate

              Purchase

              Price

              for
                the

              Second
                Closing Purchased

              Securities

            	 
	 	 	 	 	 	 	 	 	 	 	 	 
	
              Falcon
                Mezzanine

              Partners
                II, LP

              21
                Custom House Street

              10th
                Floor

              Boston,
                MA 02110

              Attention:
                Rafael Fogel

              Fax:
                (212) 300-0299

              rfogel@falconinvestments.com

            	 	
              $

            	
              7,000,000

            	 	
              $

            	
              6,538,750

            	 	 	
              2,500,000

            	 	
              $

            	
              461,250

            	 	
              $

            	
              7,000,000

            	 


    

     

    
 

    
      
        
        

      

      
        A-2-1