LOAN AND SECURITY AGREEMENT

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

The parties hereto agree as follows:

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

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

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

“ Agreement ” means this Loan and Security Agreement.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

“ Guarantor ” means Parent.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Section 2.1   Delayed Draw Term Loan Commitment .

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

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

Section 2.2   Borrowing Procedures .

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

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

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

Section 2.3   [Intentionally Omitted]

Section 2.4   [Intentionally Omitted]

Section 2.5   Term and Prepayment .

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

(b)   [Intentionally Omitted]

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

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

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

Section 2.7   Interest.

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

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

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

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

(e)   Conversion and Continuation Options .

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

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

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

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

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

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

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

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

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

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

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

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

ABA No. 021-001-033

Account Number 50-787-72

Deutsche Bank Trust Company Americas, New York, New York

Account Name: GECC EFS-T&I Depository Account

Reference: EF # 22385

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

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

Section 2.10   Application of Payments .

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

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

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

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

Section 2.11   Evidence of Debt .

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

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

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

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

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

Section 2.12   Breakage Costs; Increased Costs; Capital Requirements .

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

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

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

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

Section 2.13   Taxes .

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

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

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

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

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

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

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

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

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

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

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

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

Section 2.15   Joint and Several Liability of Borrowers

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(xii)   duly executed originals of the Fee Letter.

(b)   [Intentionally Omitted]

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

(d)   Purchase Agreements .

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

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

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

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

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

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

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

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

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

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

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

(c)   Equity Contributions .

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

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

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

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

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

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

Section 4.2   Legal Authority to Conduct Business . Each Borrower has: (a)