Unassociated Document


    Exhibit
      10.33

    
 

    INTERCREDITOR
      AGREEMENT

     

    This
      INTERCREDITOR AGREEMENT (“Agreement”),
      is
      dated as of March __, 2006, and entered into by and among MODTECH HOLDINGS,
      INC.
      (the “Company”),
      BANK
      OF AMERICA, N.A. (“Bank
      of America”),
      in
      its capacity as collateral agent and representative for the First Lien
      Obligations (as defined below) (in such capacity, together with any replacement
      or successor collateral agent and representative the “First
      Lien Collateral Agent”),
      and
      AMPHORA LIMITED, an exempt company organized under the laws of the Cayman
      Islands (“Amphora”),
      in
      its capacity as collateral agent and representative for the Second Lien
      Obligations (as defined below), (in such capacity, together with any replacement
      or successor collateral agent and representative the “Second
      Lien Collateral Agent”).
      Capitalized terms used in this Agreement have the meanings assigned to them
      in
      Section 1 below.

     

    RECITALS

     

    The
      Company, the lenders and agents party thereto, and Bank of America, as Agent,
      have entered into that Loan and Security Agreement dated as of even date
      herewith, providing for a revolving credit facility (as Refinanced from time
      to
      time, the “First
      Lien Credit Agreement”);

     

    The
      Company and the lenders party thereto entered into that Securities Purchase
      Agreement dated as of December 31, 2004, providing for the issuance of
      convertible senior subordinated notes (as Refinanced from time to time in
      accordance with the terms of this Agreement, the “Second
      Lien Credit Agreement”);

     

    Pursuant
      to (i)  the First Lien Credit Agreement, certain current Subsidiaries of
      the Company have agreed to guaranty the First Lien Obligations and the Company
      has agreed to cause certain future Subsidiaries of the Company to guaranty
      the
      First Lien Obligations (as Refinanced from time to time the “First
      Lien Subsidiary Guaranty”);
      and
      (ii) the Second Lien Credit Agreement, certain current Subsidiaries of the
      Company have guarantied the Second Lien Obligations and the Company has agreed
      to cause certain future Subsidiaries of the Company to guaranty the Second
      Lien
      Obligations (as Refinanced from time to time in accordance with the terms of
      this Agreement, the “Second
      Lien Subsidiary Guaranty”);

     

    The
      obligations of the Company under the First Lien Credit Agreement and any Bank
      Products with the First Lien Lenders (or any of their Affiliates) and the
      obligations of the Subsidiaries under the First Lien Subsidiary Guaranty will
      be
      secured on a first priority basis by liens on all the assets of the Company
      and
      certain Subsidiaries (such current and future Subsidiaries of the Company
      providing a guaranty thereof, the “Guarantor
      Subsidiaries”),
      respectively, pursuant to the terms of the First Lien Collateral
      Documents;

     

    
      
        
        

      

      
        1

        
          

        

      

      
        
        

      

    

     

    The
      obligations of the Company under the Second Lien Credit Agreement and the
      obligations of the Subsidiaries under the Second Lien Subsidiary Guaranty will
      be secured on a second priority basis by liens on substantially all the assets
      of the Company and the Guarantor Subsidiaries, respectively, pursuant to the
      terms of the Second Lien Collateral Documents;

     

    The
      First
      Lien Loan Documents and the Second Lien Loan Documents provide, among other
      things, that the parties thereto shall set forth in this Agreement their
      respective rights and remedies with respect to the Collateral; and

     

    In
      order
      to induce the First Lien Collateral Agent and the First Lien Claimholders to
      extend and maintain credit and other financial accommodations and lend monies
      to
      or for the benefit of the Company, or any other Grantor, the Second Lien
      Collateral Agent on behalf of the Second Lien Claimholders has agreed to the
      intercreditor and other provisions set forth in this Agreement.

     

    AGREEMENT

     

    In
      consideration of the foregoing, the mutual covenants and obligations herein
      set
      forth and for other good and valuable consideration, the sufficiency and receipt
      of which are hereby acknowledged, the parties hereto, intending to be legally
      bound, hereby agree as follows:

     

    SECTION
      1.  Definitions.

     

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

     

    “Affiliate”
means,
      with respect to a specified Person, another Person that directly, or indirectly
      through one or more intermediaries, controls or is controlled by or is under
      common control with the Person specified. For purposes of this definition,
      a
      Person shall be deemed to “control” or be “controlled by” a Person if such
      Person possesses, directly or indirectly, power to direct or cause the direction
      of the management or policies of such Person whether through ownership of equity
      interests, by contract or otherwise.

     

    “Agreement”
means
      this Intercreditor Agreement.

     

    “Asset
      Sale”
has
      the
      meaning assigned to that term in the First Lien Credit Agreement.

     

    “Bank
      Products”
means
      any of the following products, services or facilities extended to the Company
      or
      any of its Subsidiaries by Bank of America or any of its Affiliates: (a) Cash
      Management Services (as defined in the First Lien Credit Agreement); (b)
      products under Hedge Agreements; (c) commercial credit card and merchant card
      services; and (d) other banking products or services as may be requested by
      the
      Company or any of its Subsidiaries.

     

    “Bank
      Product Obligation”
of
      any
      Person means any obligation of such Person pursuant to any Bank Products,
      including, but not limited to Hedging Obligations.

     

    “Bankruptcy
      Code”
means
      Title 11 of the United States Code entitled “Bankruptcy,” as now and
      hereafter in effect, or any successor statute.

     

    “Bankruptcy
      Law”
means
      the Bankruptcy Code and any similar federal, state or foreign law for the relief
      of debtors.

     

    
      
        
        

      

      
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    “Business
      Day”
means
      a
      day other than a Saturday, Sunday or other day on which commercial banks in
      New
      York City or Los Angeles, California are authorized or required by law to
      close.

     

    “Collateral”
means
      all of the assets and property of any Grantor, whether real, personal or mixed,
      constituting either First Lien Collateral or Second Lien Collateral; provided,
      however, that in no event shall Collateral include the irrevocable standby
      letter of credit no. SLCLSTL01562, dated, December 31, 2004, issued by U.S.
      Bank
      National Association for the Company’s account for benefit of Amphora Limited,
      in the maximum amount of $10,000,000 to secure certain of the Second Lien
      Obligations (as renewed or extended from time to time, the “Second
      Lien Letter of Credit”),
      or
      drawings thereunder or proceeds thereof, but shall include any collateral
      pledged to the issuer thereof to support such letter of credit.

     

    “Collateral
      Documents”
means
      this Agreement, the First Lien Collateral Documents and the Second Lien
      Collateral Documents.

     

    “Company”
has
      the
      meaning assigned to that term in the Preamble to this Agreement.

     

    “Comparable
      Second Lien Collateral Document”
means,
      in relation to any Collateral subject to any Lien created under any First Lien
      Collateral Document, that Second Lien Loan Document which creates a Lien on
      the
      same Collateral, granted by the same Grantor.

     

    “Currency
      Agreement”
means
      any foreign exchange contract, currency swap agreement, futures contract, option
      contract, synthetic cap or other similar agreement or arrangement, each of
      which
      is for the purpose of hedging the foreign currency risk associated with the
      Company’s and its Subsidiaries’ operations and not for speculative
      purposes.

     

    “DIP
      Financing”
has
      the
      meaning assigned to that term in Section 6.1.

     

    “Discharge
      of First Lien Obligations”
means,
      except to the extent otherwise expressly provided in Section 5.5 and
      subject to Section 6.5:

     

    (a)  payment
      in full in cash of the principal of and interest (including interest accruing
      on
      or after the commencement of any Insolvency or Liquidation Proceeding, whether
      or not such interest would be allowed in such Insolvency or Liquidation
      Proceeding), and premium, if any, on all Indebtedness outstanding under the
      First Lien Loan Documents constituting First Lien Obligations;

     

    (b)  payment
      in full in cash under any Bank Product Obligations entered into with a First
      Lien Claimholder (or any of their Affiliates) constituting First Lien
      Obligations;

     

    (c)  payment
      in full in cash of all other First Lien Obligations that are due and payable
      or
      otherwise accrued and owing at or prior to the time such principal and interest
      are paid;

     

    
      
        
        

      

      
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    (d)  termination
      or expiration of all commitments, if any, to extend credit that would constitute
      First Lien Obligations; and

     

    (e)  termination
      (without any prior demand for payment thereunder having been made or, if made,
      with such demand having been fully reimbursed in cash) or cash collateralization
      (in an amount and manner, and on terms, satisfactory to the First Lien
      Collateral Agent) of all letters of credit issued constituting First Lien
      Obligations under the First Lien Loan Documents.

     

    “Disposition”
has
      the
      meaning assigned to that term in Section 5.1(b).

     

    “First
      Lien Claimholders”
means,
      at any relevant time, the holders of First Lien Obligations at that time,
      including without limitation the First Lien Lenders (or any Lender Counterparty)
      and the agents under the First Lien Loan Documents.

     

    “First
      Lien Collateral Agent”
has
      the
      meaning assigned to that term in the Recitals to this Agreement.

     

    “First
      Lien Collateral”
means
      all of the assets and property of any Grantor, whether real, personal or mixed,
      in which a Lien is purported to be granted as security for any First Lien
      Obligations.

     

    “First
      Lien Collateral Documents”
means
      the First Lien Credit Agreement (but only the security agreement provisions
      of
      such loan and security agreement), the First Lien Mortgages, and any other
      agreement, document or instrument which is intended to grant to the First Lien
      Collateral Agent or any of the First Lien Claimholders a Lien securing any
      First
      Lien Obligations or under which rights or remedies with respect to such Liens
      are governed, as each may be Refinanced from time to time in accordance with
      the
      terms hereof and thereof.

     

    “First
      Lien Credit Agreement”
has
      the
      meaning assigned to that term in the Recitals to this Agreement.

     

    “First
      Lien Lenders”
means
      the “Lenders” under and as defined in the First Lien Loan Documents, and any
      successor to, or replacements of, such Lenders.

     

    “First
      Lien Loan Documents”
means
      the First Lien Credit Agreement and the Loan Documents (as defined in the First
      Lien Credit Agreement) and each of the other agreements, documents and
      instruments providing for or evidencing or relating to any other First Lien
      Obligation, and any other agreement, writing, document or instrument executed
      or
      delivered at any time in connection with any First Lien Obligations, including
      any intercreditor or joinder agreement among holders of First Lien Obligations,
      to the extent such are effective at the relevant time, as each may be Refinanced
      from time to time in accordance with the terms hereof and thereof.

     

    “First
      Lien Mortgages”
means
      a
      collective reference to each mortgage, deed of trust and other document or
      instrument under which any Lien on real property owned or leased by any Grantor
      is purported to be granted to secure any First Lien Obligations or under which
      rights or remedies with respect to any such Liens are governed.

     

    
      
        
        

      

      
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    “First
      Lien Obligations”
means,
      subject to the next sentence, all Obligations, whether outstanding or
      contingent, evidenced by or arising under: (i) the First Lien Credit
      Agreement, (ii) any of the other First Lien Loan Documents, and/or
      (iii) agreements relating to Bank Products entered into with any First Lien
      Lender (or any Lender Counterparty). “First Lien Obligations” shall include:
      (a) all interest accrued or accruing (or which would, absent commencement
      of an Insolvency or Liquidation Proceeding (and the effect of provisions such
      as
      Section 502(b)(2) of the Bankruptcy Code), accrue) after commencement of an
      Insolvency or Liquidation Proceeding in accordance with the rate specified
      in
      the relevant First Lien Loan Document whether or not the claim for such interest
      is allowed as a claim in such Insolvency or Liquidation Proceeding; and
      (b) any and all fees and expenses (including attorneys’ and/or financial
      consultants’ fees and expenses) incurred by the First Lien Collateral Agent or
      the other First Lien Claimholders after the commencement of an Insolvency or
      Liquidation Proceeding, whether or not the claim for fees and expenses is
      allowed under Section 506(b) of the Bankruptcy Code or any other provision
      of the Bankruptcy Code or Bankruptcy Law as a claim in such Insolvency or
      Liquidation Proceeding.

     

    Notwithstanding
      the foregoing, if the sum of: (1) Indebtedness constituting principal
      outstanding under the First Lien Credit Agreement and the other First Lien
      Loan
      Documents plus (2) the aggregate face amount of any letters of credit
      issued under the First Lien Credit Agreement, is in excess of $57,000,000 in
      the
      aggregate (the “Cap Amount”), then any such principal and reimbursement
      obligations with respect to such letters of credit in excess of the Cap Amount
      (collectively, the “Excluded First Lien Obligations”) shall not be included in
      First Lien Obligations solely for purposes of this Agreement.

     

    “First
      Lien Subsidiary Guaranty”
has
      the
      meaning assigned to that term in the Recitals to this Agreement.

     

    “Governmental
      Authority”
means
      any federal, state, municipal, national or other government, governmental
      department, commission, board, bureau, court, agency or instrumentality or
      political subdivision thereof or any entity or officer exercising executive,
      legislative, judicial, regulatory or administrative functions of or pertaining
      to any government or any court, in each case whether associated with a state
      of
      the United States, the United States, or a foreign entity or
      government.

     

    “Grantors”
means
      the Company, each of the Guarantor Subsidiaries and each other Person that
      may
      from time to time hereafter execute and deliver a First Lien Collateral Document
      or a Second Lien Collateral Document as a “Grantor” (or the equivalent
      thereof).

     

    “Guarantor
      Subsidiaries”
has
      the
      meaning set forth in the Recitals to this Agreement.

     

    “Hedge
      Agreements”
means
      an Interest Rate Agreement or a Currency Agreement entered into with a Lender
      Counterparty and a Grantor.

     

    
      
        
        

      

      
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    “Hedging
      Obligation”
of
      any
      Person means any obligation of such Person pursuant to any Hedge
      Agreements.

     

    “Indebtedness”
means
      and includes all Obligations that constitute “Debt” within the meaning of the
      First Lien Credit Agreement or “Indebtedness” within the meaning of the Second
      Lien Credit Agreement, as applicable.

     

    “Insolvency
      or Liquidation Proceeding”
      means:

     

    (a)  any
      voluntary or involuntary case or proceeding under the Bankruptcy Code with
      respect to any Grantor;

     

    (b)  any
      other
      voluntary or involuntary insolvency, reorganization or bankruptcy case or
      proceeding, or any receivership, liquidation, reorganization or other similar
      case or proceeding with respect to any Grantor or with respect to a material
      portion of their respective assets;

     

    (c)  any
      liquidation, dissolution, reorganization or winding up of any Grantor whether
      voluntary or involuntary and whether or not involving insolvency or bankruptcy
      other than any liquidation, dissolution, reorganized or winding up permitted
      by
      the terms of the First Lien Credit Agreement; or

     

    (d)  any
      general assignment for the benefit of creditors or any other marshaling of
      assets and liabilities of any Grantor.

     

    “Interest
      Rate Agreement”
means
      any interest rate swap agreement, interest rate cap agreement, interest rate
      collar agreement, interest rate hedging agreement or other similar agreement
      or
      arrangement each of which is for the purposes of hedging the interest rate
      exposure associated with the Company’s and its Subsidiaries’ operations and not
      for speculative purposes.

     

    “Lender
      Counterparty”
means
      each First Lien Lender or any Affiliate of a First Lien Lender counterparty
      to a
      Hedge Agreement or other agreement relating to Bank Products (including any
      Person who is a First Lien Lender (and any Affiliate thereof) as of the date
      hereof but subsequently, whether before or after entering into a Hedge Agreement
      or such other agreement relating to Bank Products, ceases to be a First Lien
      Lender) including, without limitation, each such Affiliate that enders into
      a
      joinder agreement with the First Lien Collateral Agent.

     

    “Lien”
means
      any lien, mortgage, pledge, assignment, security interest, charge or encumbrance
      of any kind (including any agreement to give any of the foregoing, any
      conditional sale or other title retention agreement, and any lease in the nature
      thereof) and any option, trust, UCC financing statement or other preferential
      arrangement having the practical effect of any of the foregoing.

     

    “Lien
      Enforcement Action”
means:
      (a) the taking of any action to enforce or realize upon any Lien,
      (b) the exercise of any right or remedy provided to a secured creditor on
      account of a Lien under any of the Collateral Documents or under applicable
      law,
      including the election to retain any collateral in satisfaction of a Lien,
      (c) the taking of any action or the exercise of any right or remedy in
      respect of the collection on, set off against, marshaling of, or foreclosure
      on
      the Collateral (including, without limitation, the notification of account
      debtors), (d) the sale, lease, license, or other disposition of all or any
      portion of the Collateral by private or public sale or any other means
      permissible under applicable law, (e) the exercise of any other right of a
      secured creditor under Article 9 of the UCC, (f) the adjustment of any
      insurance claim, and (g) the commencement of any legal proceedings against
      the Company or any other Grantor or with respect to any Collateral for any
      relief described in clauses (a) though (f) above.

     

    
      
        
        

      

      
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    “New
      Agent”
has
      the
      meaning assigned to that term in Section 5.5.

     

    “Obligations”
means
      all obligations of every nature of each Grantor from time to time owed to any
      agent or trustee, the First Lien Claimholders, the Second Lien Claimholders
      or
      any of them or their respective Affiliates under the First Lien Loan Documents,
      the Second Lien Loan Documents or agreements relating to Bank Products,
      including, without limitation, (a) any principal of or interest or premium
      on any indebtedness, including any reimbursement obligation in respect of any
      letter of credit, or any other liability, including interest accruing after
      the
      filing of a petition initiating any proceeding under the Bankruptcy Code,
      (b) any fees, indemnification obligations, charges, costs, expense
      reimbursement obligations or other liabilities payable under the documentation
      governing any indebtedness, (c) any obligation to post cash collateral in
      respect of letters of credit or any other obligations, (d) in the case of
      the First Lien Obligations, any Bank Product Obligations (including payments
      for
      early termination), and (e) all performance obligations under the
      documentation governing any indebtedness, in each case, whether direct or
      indirect, absolute or contingent, joint or several, in each case, whether or
      not
      the claim for such amounts is allowed under Section 506(b) of the Bankruptcy
      Code or any other provision of the Bankruptcy Code or Bankruptcy Law as a claim
      in an Insolvency or Liquidation Proceeding.

     

    “Person”
means
      any natural person, corporation, limited liability company, limited liability
      partnerships, trust, joint venture, association, company, bank, general or
      limited partnership, Governmental Authority or other entity or organization,
      whether or not legal entities.

     

    “Pledged
      Collateral”
has
      the
      meaning set forth in Section 5.4(a).

     

    “Recovery”
has
      the
      meaning set forth in Section 6.5.

     

    “Refinance”
means,
      in respect of any Indebtedness or any First Lien Loan Documents or Second Lien
      Loan Documents with respect to any Indebtedness, to refinance, extend, renew,
      defease, amend, modify, supplement, restructure, replace, refund or repay,
      or to
      issue other indebtedness in exchange or replacement for, such Indebtedness
      or
      any First Lien Loan Documents or Second Lien Loan Documents in whole or in
      part,
      whether pursuant to one or more agreements, with the same and/or different
      lenders and/or agents. “Refinanced” and “Refinancing” shall have correlative
      meanings.

     

    
      
        
        

      

      
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    “Second
      Lien Claimholders”
means,
      at any relevant time, the holders of Second Lien Obligations at that time,
      including without limitation the Second Lien Lenders and the agents under the
      Second Lien Loan Documents.

     

    “Second
      Lien Collateral”
means
      all of the assets and property of any Grantor, whether real, personal or mixed,
      with respect to which a Lien is purported to be granted as security for any
      Second Lien Obligations.

     

    “Second
      Lien Collateral Agent”
has
      the
      meaning assigned to that term in the Preamble of this Agreement.

     

    “Second
      Lien Collateral Documents”
means
      the Pledge and Security Agreement (as defined in the Second Lien Credit
      Agreement, as in effect on the date hereof), the Second Lien Mortgages, and
      any
      other agreement, document or instrument which is intended to grant to the Second
      Lien Collateral Agent or any of the Second Lien Claimholders a Lien securing
      any
      Second Lien Obligations or under which rights or remedies with respect to such
      Liens are governed as each may be Refinanced from time to time in accordance
      with the terms hereof and thereof.

     

    “Second
      Lien Credit Agreement”
has
      the
      meaning assigned to that term in the Recitals to this Agreement.

     

    “Second
      Lien Lenders”
means
      the “Lenders” under and as defined in the Second Lien Credit Agreement, and any
      successors to, or replacements of, such Lenders.

     

    “Second
      Lien Letter of Credit”
has
      the
      meaning set forth in the definition of “Collateral” herein.

     

    “Second
      Lien Loan Documents”
means
      the Second Lien Credit Agreement, the Second Lien Notes and the Transaction
      Documents (as defined in the Second Lien Credit Agreement) and each of the
      other
      agreements, documents and instruments providing for or evidencing or relating
      to
      any other Second Lien Obligation, and any other agreement, writing, document
      or
      instrument executed or delivered at any time in connection with any Second
      Lien
      Obligations, including any intercreditor or joinder agreement among holders
      of
      Second Lien Obligations to the extent such are effective at the relevant time,
      as each may be amended, restated, supplemented, modified, renewed, extended
      or
      Refinanced from time to time in accordance with the provisions hereof and
      thereof.

     

    “Second
      Lien Mortgages”
means
      a
      collective reference to each mortgage, deed of trust and any other document
      or
      instrument under which any Lien on real property owned or leased by any Grantor
      is purported to be granted to secure any Second Lien Obligations or under which
      rights or remedies with respect to any such Liens are governed.

     

    
      
        
        

      

      
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    “Second
      Lien Notes”
means
      the Amended and Restated Senior Subordinated Secured Convertible Notes, dated
      as
      of August 5, 2005, issued by the Company in favor of the Second Lien Lenders,
      in
      the original aggregate principal amount of $25,900,000, as amended by the
      Amendment Agreement, dated as of even date herewith, between the Company and
      the
      Second Lien Lenders, and as otherwise Refinanced from time to time in accordance
      with the terms hereof and thereof.

     

    “Second
      Lien Obligations”
means
      all Obligations, whether outstanding or contingent, evidenced by or arising
      under: (i) the Second Lien Credit Agreement and/or (ii) any of the
      other Second Lien Loan Documents. “Second Lien Obligations” shall include:
      (a) all interest accrued or accruing (or which would, absent commencement
      of an Insolvency or Liquidation Proceeding (and the effect of provisions such
      as
      Section 502(b)(2) of the Bankruptcy Code), accrue) after commencement of an
      Insolvency or Liquidation Proceeding in accordance with the rate specified
      in
      the relevant Second Lien Loan Document whether or not the claim for such
      interest is allowed as a claim in such Insolvency or Liquidation Proceeding;
      and
      (b) any and all fees and expenses (including attorneys’ and/or financial
      consultants’ fees and expenses) incurred by the Second Lien Collateral Agent or
      the other Second Lien Claimholders after the commencement of an Insolvency
      or
      Liquidation Proceeding, whether or not the claim for fees and expenses is
      allowed under Section 506(b) of the Bankruptcy Code or any other provision
      of the Bankruptcy Code or Bankruptcy Law as a claim in such Insolvency or
      Liquidation Proceeding.

     

    “Second
      Lien Subsidiary Guaranty”
has
      the
      meaning assigned to that term in the Recitals to this Agreement.

     

    “Standstill
      Period”
has
      the
      meaning set forth in Section 3.1(a)(5).

     

    “Subsidiary”
means,
      with respect to any Person, any corporation, partnership, limited liability
      company, association, joint venture or other business entity of which more
      than
      50% of the total voting power of shares of stock or other ownership interests
      entitled (without regard to the occurrence of any contingency) to vote in the
      election of the Person or Persons (whether directors, managers, trustees or
      other Persons performing similar functions) having the power to direct or cause
      the direction of the management and policies thereof is at the time owned or
      controlled, directly or indirectly, by that Person or one or more of the other
      Subsidiaries of that Person or a combination thereof.

     

    “UCC”
means
      the Uniform Commercial Code (or any similar or equivalent legislation) as in
      effect in any applicable jurisdiction.

     

    1.2  Terms
      Generally.
      The
      definitions of terms in this Agreement shall apply equally to the singular
      and
      plural forms of the terms defined. Whenever the context may require, any pronoun
      shall include the corresponding masculine, feminine and neuter forms. The words
      “include,” “includes” and “including” shall be deemed to be followed by the
      phrase “without limitation.” The word “will” shall be construed to have the same
      meaning and effect as the word “shall.” Unless the context requires
      otherwise:

     

    (a)  any
      definition of or reference to any agreement, instrument or other document herein
      shall be construed as referring to such agreement, instrument or other document
      as from time to time amended, restated, supplemented, modified, renewed or
      extended subject to the limitations set forth herein;

     

    
      
        
        

      

      
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    (b)  any
      reference herein to any Person shall be construed to include such Person’s
      permitted successors and assigns;

     

    (c)  the
      words
“herein,” “hereof” and “hereunder,” and words of similar import, shall be
      construed to refer to this Agreement in its entirety and not to any particular
      provision hereof;

     

    (d)  all
      references herein to Sections shall be construed to refer to Sections of this
      Agreement; and

     

    (e)  the
      words
“asset” and “property” shall be construed to have the same meaning and effect
      and to refer to any and all tangible and intangible assets and properties,
      including cash, securities, accounts and contract rights.

     

    SECTION
      2.  Lien
      Priorities.

     

    2.1  Relative
      Priorities.
      Notwithstanding the date, time, method, manner or order of grant, attachment
      or
      perfection of any Liens securing the Second Lien Obligations granted on the
      Collateral or of any Liens securing the First Lien Obligations granted on the
      Collateral and notwithstanding any provision of the UCC, or any statutory,
      decisional or other applicable law that would provide for a contrary ordering
      of
      priorities, or the Second Lien Loan Documents or any defect or deficiencies
      in,
      or failure to perfect, the Liens securing the First Lien Obligations or any
      other circumstance whatsoever, each of the Grantors, the First Lien Collateral
      Agent, and the Second Lien Collateral Agent, on behalf of itself and the Second
      Lien Claimholders, hereby acknowledges and agrees that:

     

    (a)  any
      Lien
      purported to be granted on the Collateral securing any First Lien Obligations
      now or hereafter held by or on behalf of the First Lien Collateral Agent or
      any
      First Lien Claimholders or any agent or trustee therefor, regardless of how
      or
      when acquired, whether by grant, possession, statute, operation of law,
      subrogation or otherwise, shall be “first” priority and senior in all respects
      and prior to any Lien on the Collateral securing any Second Lien Obligations;
      and

     

    (b)  any
      Lien
      purported to be granted on the Collateral securing any Second Lien Obligations
      now or hereafter held by or on behalf of the Second Lien Collateral Agent,
      any
      Second Lien Claimholders or any agent or trustee therefor regardless of how
      acquired, whether by grant, possession, statute, operation of law, subrogation
      or otherwise, shall be “second” priority and junior and subordinate and subject
      in all respects to all Liens on the Collateral securing any First Lien
      Obligations. All Liens on the Collateral securing any First Lien Obligations
      shall be and remain senior in all respects and prior to all Liens on the
      Collateral securing any Second Lien Obligations for all purposes, whether or
      not
      such Liens securing any First Lien Obligations are subordinated to any Lien
      securing any other obligation of the Company, any other Grantor or any other
      Person.

     

    2.2  Prohibition
      on Contesting Liens.
      Each of
      the Second Lien Collateral Agent, for itself and on behalf of each Second Lien
      Claimholder, and the First Lien Collateral Agent, for itself and on behalf
      of
      each First Lien Claimholder, agrees that it will not (and hereby waives any
      right to) contest or support any other Person in contesting, in any proceeding
      (including any Insolvency or Liquidation Proceeding), (i) the priority,
      validity or enforceability of a Lien held by or on behalf of any of the First
      Lien Claimholders in the First Lien Collateral or by or on behalf of any of
      the
      Second Lien Claimholders in the Second Lien Collateral, as the case may be;
      provided that nothing in this Agreement shall be construed to prevent or impair
      the rights of the First Lien Collateral Agent or any First Lien Claimholder
      to
      enforce this Agreement, including the provisions of this Agreement relating
      to
      the priority of the Liens securing the First Lien Obligations as provided in
      Sections 2.1 and 3.1, (ii) the validity or enforceability of any
      Collateral Documents (including this Agreement) or any Obligation or other
      obligation thereunder, or (iii) except as expressly set forth herein, the
      relative rights and duties of the First Lien Claimholders and the Second Lien
      Claimholders granted and/or established pursuant to this Agreement or any other
      Collateral Document.

     

    
      
        
        

      

      
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    2.3  No
      New
      Liens.
      So long
      as the Discharge of First Lien Obligations has not occurred, whether or not
      any
      Insolvency or Liquidation Proceeding has been commenced by or against the
      Company or any other Grantor, the parties hereto agree that the Company shall
      not, and shall not permit any other Grantor to grant or permit (and the Second
      Lien Claimholders agree that they shall not receive) any additional Liens,
      or
      take any action to perfect a Lien, on any asset or property to secure any Second
      Lien Obligation unless a first priority Lien is granted to the First Lien
      Collateral Agent on such asset or property to secure the First Lien Obligations.
      To the extent that the foregoing provisions are not complied with for any
      reason, without limiting any other rights and remedies available to the First
      Lien Collateral Agent and/or the First Lien Claimholders, the Second Lien
      Collateral Agent, on behalf of Second Lien Claimholders, agrees that any amounts
      received by or distributed to any of them pursuant to or as a result of Liens
      granted in contravention of this Section 2.3 shall be subject to
      Section 4.2.

     

    SECTION
      3.  Enforcement.

     

    3.1  Exercise
      of Remedies.

     

    (a)  Except
      as
      otherwise permitted by Section 3.1(c), until the Discharge of First Lien
      Obligations has occurred, whether or not any Insolvency or Liquidation
      Proceeding has been commenced by or against the Company or any other Grantor,
      the Second Lien Collateral Agent and the Second Lien Claimholders:

     

    (1)  will
      not
      exercise or seek to exercise any rights or remedies with respect to any
      Collateral (including, without limitation, the exercise of any right of setoff
      or any right under any lockbox agreement, account control agreement, landlord
      waiver or bailee’s letter or similar agreement or arrangement to which the
      Second Lien Collateral Agent or any Second Lien Claimholder is a party) or
      institute any action or proceeding with respect to such rights or remedies
      (including any action of foreclosure) or take any other Lien Enforcement
      Action;

     

    (2)  will
      not
      contest, protest or object to any foreclosure proceeding or action brought
      by
      the First Lien Collateral Agent or any First Lien Claimholder or any other
      exercise by the First Lien Collateral Agent or any First Lien Claimholder of
      any
      rights and remedies relating to the Collateral under the First Lien Loan
      Documents or otherwise;

     

    
      
        
        

      

      
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      (3)  will
        not
        object to the forbearance by the First Lien Collateral Agent or the First
        Lien
        Claimholders from bringing or pursuing any foreclosure proceeding or action
        or
        any other exercise of any rights or remedies relating to the Collateral,
        in each
        case so long as the Liens granted to secure the Second Lien Obligations of
        the
        Second Lien Claimholders attach to the proceeds thereof subject to the relative
        priorities described in Section 2;

       
(4)  will
      not
      initiate or join in or petition for or vote in favor of any resolution for
      or
      instigate or support, any Insolvency or Liquidation Proceeding; and

     

    (5)  will
      not:

     

    (i)  accelerate
      any payment of all or any of the Second Lien Obligations;

     

    (ii)  collect
      the Second Lien Obligations or any part thereof other than in common equity
      of
      the Company;

     

    (iii)  enforce
      any right of repayment of any Second Lien Obligations other than in common
      equity of the Company; or

     

    (iv)  initiate
      (or join in) or file or prosecute any proceeding or judicial action with respect
      to the Second Lien Obligations;

     

    provided
      that, upon 5 Business Days prior written notice to the First Lien Collateral
      Agent after the Standstill Period, to the extent permitted by the terms of
      the
      Second Lien Loan Documents, the Second Lien Collateral Agent may accelerate
      the
      Second Lien Obligations and may, subject to the terms of clause (4) above
      and the other provisions of this Agreement, file and prosecute a lawsuit to
      collect the Second Lien Obligations.

     

    As
      used
      in this Section 3.1(a)(5), the term “Standstill Period” means the period
      beginning on the occurrence of an Event of Default under and as defined in
      the
      Second Lien Loan Documents and ending on the date that is 540 days following
      the
      latest date after both (1) any Second Lien Collateral Agent shall have
      given notice (making specific reference to this Section 3.1(a)(5) and
      describing such Event of Default that is subject to such notice) to the First
      Lien Collateral Agent that any such Event of Default under the Second Lien
      Loan
      Documents shall have occurred and be continuing and of such Second Lien
      Collateral Agent’s intent to exercise rights and remedies and (2) the
      commencement of material work under all of the contracts that any of the
      Grantors then have entered into as of the time of the delivery of the notice
      in
      the preceding clause (1), except for any contracts, which individually or
      in the aggregate, as of such date would not entitle the Company to aggregate
      payments in excess of $1,000,000.

     

    (b)  Until
      the
      Discharge of First Lien Obligations has occurred, whether or not any Insolvency
      or Liquidation Proceeding has been commenced by or against the Company or any
      other Grantor, the First Lien Collateral Agent and the First Lien Claimholders
      shall have the exclusive right to manage, perform and enforce the terms of
      the
      First Lien Loan Documents in respect of the Collateral, to exercise and enforce
      rights, exercise remedies (including set-off and the right to credit bid their
      debt) and make determinations in its sole discretion regarding the release,
      disposition, or restrictions with respect to the Collateral, including, without
      limitation, the exclusive right to take or retake control or possession of
      the
      Collateral and to hold, prepare for sale, process, lease, sell, dispose of
      or
      liquidate the Collateral, all without any consultation with or the consent
      of
      the Second Lien Collateral Agent or any Second Lien Claimholder. In exercising
      rights and remedies with respect to the Collateral, the First Lien Collateral
      Agent and the First Lien Claimholders may enforce the provisions of the First
      Lien Loan Documents and exercise remedies thereunder, all in such order and
      in
      such manner as they may determine in the exercise of their sole discretion.
      Such
      exercise and enforcement shall include the rights of an agent appointed by
      them
      to sell or otherwise dispose of Collateral upon foreclosure, to incur expenses
      in connection with such sale or disposition, and to exercise all the rights
      and
      remedies of a secured creditor under the UCC and of a secured creditor under
      Bankruptcy Laws of any applicable jurisdiction.

     

    
      
        
        

      

      
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    (c)  Notwithstanding
      anything in this Agreement to the contrary (except as specifically provided
      below), the Second Lien Collateral Agent and any Second Lien Claimholder may,
      at
      any time and from time to time:

     

    (1)  file
      a
      claim or statement of interest with respect to the Second Lien Obligations;
      provided that an Insolvency or Liquidation Proceeding has been commenced by
      or
      against the Company or any other Grantor by or on behalf of someone other than
      a
      Second Lien Claimholder;

     

    (2)  take
      any
      action (not adverse to the priority status of the Liens on the Collateral
      securing the First Lien Obligations, or the rights of any First Lien Collateral
      Agent or the First Lien Claimholders to exercise remedies in respect thereof)
      in
      order to create, perfect or maintain its Lien on the Collateral, subject to
      the
      terms of this Agreement;

     

    (3)  ask
      the
      Company for and/or, subject to Section 4.3 hereof, scheduled payments with
      respect to Second Lien Obligations required to be made in accordance with the
      terms of the Second Lien Loan Documents then due and owing, but without
      acceleration of the maturity of such obligations;

     

    (4)  exercise
      any and all of their rights and remedies in respect of any conversion or
      redemption of, or any other payment of, any Second Lien Obligations solely
      into
      common equity of the Company; and

     

    (5)  sell,
      assign or otherwise transfer any and all of the Second Lien Obligations and
      their rights relating thereto, subject to and in compliance with the provisions
      of this Agreement, so long as any such subsequent holder agrees in writing
      to be
      bound by the terms of this Agreement.

     

    The
      Second Lien Collateral Agent, on behalf of itself and the Second Lien
      Claimholders, agrees that it will not take or receive any Collateral or any
      proceeds of Collateral in connection with the exercise of any right or remedy
      (including set-off) with respect to any Collateral, unless and until the
      Discharge of First Lien Obligations has occurred. Without limiting the
      generality of the foregoing, unless and until the Discharge of First Lien
      Obligations has occurred, except as expressly provided in Section 3.1(c),
      the sole right of the Second Lien Collateral Agent and the Second Lien
      Claimholders with respect to the Collateral is to hold a Lien on the Collateral
      pursuant to the Second Lien Collateral Documents for the period and to the
      extent granted therein and to receive a share of the proceeds thereof, if any,
      after the Discharge of First Lien Obligations has occurred.

     

    
      
        
        

      

      
        13

        
          

        

      

      
        
        

      

    

    (d)  (1)   The
      Second Lien Collateral Agent, for itself and on behalf of the Second Lien
      Claimholders, agrees that the Second Lien Collateral Agent and the Second Lien
      Claimholders will not take any action that would hinder, delay, limit or
      prohibit any exercise of remedies under the First Lien Loan Documents or is
      otherwise prohibited hereunder, including any sale, lease, exchange, transfer
      or
      other disposition of the Collateral, whether by foreclosure or otherwise or
      that
      would limit, invalidate, avoid or set aside any Lien or Collateral Document
      or
      subordinate the priority of the First Lien Obligations to the Second Lien
      Obligations or afford the Liens securing the Second Lien Obligations equal
      ranking to the Liens securing the First Lien Obligations;

     

    (2)  the
      Second Lien Collateral Agent, for itself and on behalf of the Second Lien
      Claimholders, hereby waives any and all rights it or the Second Lien
      Claimholders may have as a junior lien creditor or otherwise (whether arising
      under the UCC or any other law) to object to the manner in which the First
      Lien
      Collateral Agent or the First Lien Claimholders seek to enforce or collect
      the
      First Lien Obligations or the Liens securing the First Lien Obligations granted
      in any of the First Lien Collateral, regardless of whether any action or failure
      to act by or on behalf of the First Lien Collateral Agent or First Lien
      Claimholders is adverse to the interest of the Second Lien Claimholders;
      and

     

    (3)  the
      Second Lien Collateral Agent hereby acknowledges and agrees that no covenant,
      agreement or restriction contained in the Second Lien Collateral Documents
      or
      any other Second Lien Loan Document shall be deemed to restrict in any way
      the
      rights and remedies of the First Lien Collateral Agent or the First Lien
      Claimholders with respect to the Collateral as set forth in this Agreement
      and
      the First Lien Loan Documents.

     

    (e)  Except
      as
      specifically set forth in Sections 3.1(a) and (d) and subject to
      Section 3.1(f), the Second Lien Collateral Agent and the Second Lien
      Claimholders may exercise rights and remedies as unsecured creditors against
      the
      Company or any other Grantor that has guaranteed or granted Liens to secure
      the
      Second Lien Obligations in accordance with the terms of this Agreement, the
      Second Lien Loan Documents and applicable law; provided that in the event that
      any Second Lien Claimholder becomes a judgment Lien creditor in respect of
      Collateral as a result of its enforcement of its rights as an unsecured creditor
      with respect to the Second Lien Obligations, such judgment Lien shall be subject
      to the terms of this Agreement for all purposes (including in relation to the
      First Lien Obligations and being subordinate thereto) as the other Liens
      securing the Second Lien Obligations subject to this Agreement.

     

    (f)  Except
      as
      specifically set forth in Sections 3.1(a) and (d) and Section 4.3,
      nothing in this Agreement shall prohibit the receipt by the Second Lien
      Collateral Agent or any Second Lien Claimholders of the required payments of
      interest, principal and other amounts owed in respect of the Second Lien
      Obligations so long as both such payment does not constitute proceeds of
      Collateral and such receipt is not the direct or indirect result of the exercise
      by the Second Lien Collateral Agent or any Second Lien Claimholders of rights
      or
      remedies as a secured creditor (including set-off) or enforcement in
      contravention of this Agreement of any Lien held by any of them. Nothing in
      this
      Agreement impairs or otherwise adversely affects any rights or remedies the
      First Lien Collateral Agent or the First Lien Claimholders may have with respect
      to the First Lien Collateral.

     

    
      
        
        

      

      
        14

        
          

        

      

      
        
        

      

    

     

    SECTION
      4.  Payments.

     

    4.1  Application
      of Proceeds.

     

    (a)  So
      long
      as the Discharge of First Lien Obligations has not occurred, whether or not
      any
      Insolvency or Liquidation Proceeding has been commenced by or against the
      Company or any other Grantor, all Collateral or proceeds thereof received or
      collected in connection with the sale or other disposition of, or collection
      on,
      all such Collateral (whether made or effected by a Grantor, a First Lien
      Claimholder, a Second Lien Claimholder or any other Person) (i) pursuant to
      the enforcement of any Collateral Document or the exercise of any remedial
      provision thereunder or under or pursuant to any applicable law, and all
      proceeds of Collateral that are recovered pursuant to an avoidance action or
      (ii) that otherwise are to be paid over to or for the account of the First
      Lien Collateral Agent or any other First Lien Claimholder or the Second Lien
      Collateral Agent or any other Second Lien Claimholder in accordance with or
      pursuant to any of the First Lien Loan Documents or any of the Second Lien
      Loan
      Documents, together with all other proceeds received by the First Lien
      Collateral Agent or the Second Lien Collateral Agent hereunder (including all
      funds received in respect of post-petition interest or fees and expenses) as
      a
      result of any such enforcement or the exercise of any such remedial provision
      or
      as a result of any distribution of or in respect of any Collateral (whether
      or
      not expressly characterized as such, including amounts representing proceeds
      turned over to any such Grantor or the estate of any such Grantor by First
      Lien
      Collateral Agent or any other First Lien Claimholder or the Second Lien
      Collateral Agent or any other Second Lien Claimholder as a result of any
      avoidance action) upon or in any Insolvency or Liquidation Proceeding with
      respect to any Grantor, or the application of any Collateral (or proceeds
      thereof) to the payment of any of the First Lien Obligations or Second Lien
      Obligations or any distribution of Collateral (or proceeds thereof) upon the
      liquidation or dissolution of any Grantor, or the winding up of the assets
      or
      business of any Grantor, shall be applied first, to payment of the First Lien
      Obligations and the provision of cash collateral in respect of issued and
      outstanding Letters of Credit in accordance with the First Lien Loan Documents
      and in respect of Bank Products in accordance with the First Lien Loan
      Documents, and second, to payment of the Second Lien Obligations then due and
      payable, and third, to payment of Excluded First Lien Obligations and, with
      respect to Excluded First Lien Obligations consisting of issued and outstanding
      Letters of Credit and Bank Products, the provision of cash collateral in respect
      of such Letters of Credit and such Bank Product in accordance with the First
      Lien Loan Documents.

     

    (b)  It
      is
      understood and agreed that the Grantors remain jointly and severally liable
      to
      the relevant creditors for any deficiency between (x) the amount of the proceeds
      of the Collateral received by such creditors hereunder and (y) the aggregate
      amount of the Obligations owing to such creditors.

     

    
      
        
        

      

      
        15

        
          

        

      

      
        
        

      

    

     

    4.2  Payments
      Over.
      So long
      as the Discharge of First Lien Obligations has not occurred but subject to
      Section 6.5 in any event, whether or not any Insolvency or Liquidation
      Proceeding has been commenced by or against the Company or any other Grantor,
      any Collateral or proceeds thereof (or any distribution in respect of
      Collateral) (whether or not characterized as such) (including assets or proceeds
      subject to Liens referred to in the final sentence of Section 2.3) received
      by the Second Lien Collateral Agent or any Second Lien Claimholders, whether
      received from any Grantor or any other Person, in connection with the exercise
      of any right or remedy (including set-off) relating to the Collateral or
      otherwise that is inconsistent or in contravention of this Agreement shall
      be
      segregated and held in trust and forthwith paid over to the First Lien
      Collateral Agent for the benefit of the First Lien Claimholders in the same
      form
      as received, with any necessary endorsements. The First Lien Collateral Agent
      is
      hereby authorized to make any such endorsements as agent for the Second Lien
      Collateral Agent or any such Second Lien Claimholders. This authorization is
      coupled with an interest and is irrevocable until the Discharge of First Lien
      Obligations.

     

    4.3  No
      Payment.
      None of
      the Second Lien Claimholders (including the Second Lien Collateral Agent) shall
      accept or receive, call or demand, and none of the Grantors shall make,
      (x) any payment in respect of the Second Lien Obligations (other than in
      common equity of the Company) at a time when a “Default” or “Event of Default”
exists, or would result from any such payment, under (and as defined in) the
      First Lien Loan Documents, (y) any voluntary prepayment of any portion of
      the principal amount (or interest thereon) or other amounts in respect of the
      Second Lien Obligations (other than in common equity of the Company) or
      (z) any other payment, mandatory prepayment or redemption (other than in
      common equity of the Company) of any portion of the principal amount (or
      interest thereon) or other amounts in respect of the Second Lien Obligations
      other than in compliance with the terms of First Lien Loan Documents and the
      Second Lien Loan Documents; provided,
      however,
      that
      (1) the Second Lien Lenders may, at any time, exercise any and all rights under
      the Second Lien Loan Documents to convert or redeem any of the Second Lien
      Obligations into common equity of the Company; and (2) so long as both (A)
      no
“Default” or “Event of Default” exists, or would result from any such payment,
      under (and as defined in) the First Lien Loan Documents, and (B) there will
      exist at least $3,000,000 of “Availability” as determined on a commercially
      reasonable basis, in good faith, under (and as defined in) the First Lien Loan
      Documents, after taking any such payment or redemption into account, the Second
      Lien Lenders may receive payment of principal in cash at the final scheduled
      maturity date of the Second Lien Notes, and the Second Lien Lenders may exercise
      and receive payment of principal in cash from permitted mandatory redemptions
      of
      the Second Lien Notes as follows: 

     

    (a)  subject
      to the following terms, the Second Lien Lenders shall have the right to cause
      the Company to redeem up to the following principal amount(s) of the Second
      Lien
      Notes on each of the following redemption dates by delivering written notice
      of
      the exercise of such right to the Company 30 Trading Days (as defined in the
      Second Lien Notes) prior to the redemption dates: (i) up to $8.33 million,
      on
      August 31, 2006 (“First
      Redemption Date”);
      (ii) up to $9.23 million, on August 31, 2007 (“Second
      Redemption Date”);
      and
      (iii) up to $8.33 million, on September 2, 2008 (“Third
      Redemption Date”
and,
      together with the First Redemption Date and the Second Redemption Date,
      collectively, the “Redemption
      Dates”);

     

    
      
        
        

      

      
        16

        
          

        

      

      
        
        

      

    

     

    (b)  if
      the
      Second Lien Lenders elect to redeem any of the Second Lien Notes on the
      applicable Redemption Dates, the Second Lien Lenders will be required to first
      use at least $5 million of cash collateral supporting the Second Lien Letter
      of
      Credit as repayment proceeds for the First Redemption Date and Second Redemption
      Date, respectively, to consummate the redemption; provided that such Second
      Lien
      Letter of Credit is automatically reduced by the amount of any cash collateral
      which is released;

     

    (c)  in
      the
      event the Company is required to redeem any portion of the Second Lien Notes
      on
      one of the applicable Redemption Dates, which redemption, under the terms of
      the
      Second Lien Loan Documents, (i) triggers the release of cash collateral for
      the Second Lien Letter of Credit and (ii) thereby reduces the Second Lien
      Letter of Credit by a corresponding amount of such released cash collateral,
      the
      Second Lien Lenders shall be permitted a right of redemption for an amount
      up to
      the additional $3.33 million then called for redemption on the applicable
      Redemption Date, so long as (A) no greater than (1) $3.33 million of
      redemption proceeds, on the First Redemption Date, and (2) $4.23 million of
      redemption proceeds, on the Second Redemption Date, are derived from borrowings
      under the First Lien Loan Documents, (B) the Company has met the conditions
      referenced in Section 4.3(d) below, (C) with respect to the applicable
      Redemption Date, the Second Lien Lenders have used at least $5 million of cash
      collateral securing the Second Lien Letter of Credit towards redemption of
      the
      Second Lien Notes on such specific Redemption Date (with the corresponding
      reduction to the Second Lien Letter of Credit), and (D) no default or event
      of default then exists, or would result from such payment, under the First
      Lien
      Loan Documents;

     

    (d)  the
      redemption conditions referenced above shall be: (i) with respect to the
      First Redemption Date, the Company meeting one hundred percent (100%) of its
      budgeted EBITDA (as defined in the First Lien Credit Agreement) as disclosed
      to
      the First Lien Collateral Agent on the date hereof for the trailing six-month
      period ending on June 30, 2006, as evidenced by the delivery of financial
      statements in compliance with the requirements of the First Lien Credit
      Agreement together with a certificate signed by the chief financial officer
      of
      the Company certifying as to such evidence, and (ii) with respect to the
      Second Redemption Date, the Company meeting the requirements set out in clause
      (i) above and meeting at least ninety percent (90%) of its budgeted EBITDA
      as
      disclosed to the First Lien Collateral Agent on the date hereof for the trailing
      twelve-month period ending on June 30, 2007, as evidenced by the delivery of
      financial statements in compliance with the requirements of the First Lien
      Credit Agreement together with a certificate signed by the chief financial
      officer of the Company certifying as to such evidence.

     

    SECTION
      5.  Other
      Agreements.

     

    5.1  Releases.

     

    (a)  If,
      in
      connection with the exercise of the First Lien Collateral Agent’s remedies in
      respect of the Collateral provided for in Section 3.1, the First Lien
      Collateral Agent, for itself or on behalf of any of the First Lien Claimholders,
      releases any of its Liens on any part of the Collateral or releases any Grantor
      from its obligations under its guaranty of the First Lien Obligations, then
      the
      Liens, if any, of the Second Lien Collateral Agent, for itself or for the
      benefit of the Second Lien Claimholders, on such Collateral, and the obligations
      of such Grantor under its guaranty of the Second Lien Obligations, shall be
      automatically, unconditionally and simultaneously released. The Second Lien
      Collateral Agent, for itself or on behalf of any such Second Lien Claimholders,
      promptly shall execute and deliver to the First Lien Collateral Agent or such
      Grantor such termination statements, releases and other documents as the First
      Lien Collateral Agent or such Grantor may request to effectively confirm such
      release.

     

    
      
        
        

      

      
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    (b)  If
      in
      connection with any sale, lease, exchange, transfer or other disposition of
      any
      Collateral (collectively, a “Disposition”) permitted under the terms of the
      First Lien Loan Documents or consented to by the First Lien Claimholders (other
      than the exercise of the First Lien Collateral Agent’s remedies in respect of
      the Collateral provided for in Section 3.1), the First Lien Collateral
      Agent, for itself or on behalf of any of the First Lien Claimholders, releases
      any of its Liens on any part of the Collateral, or releases any Grantor from
      its
      obligations under its guaranty of the First Lien Obligations, then the Liens,
      if
      any, of the Second Lien Collateral Agent, for itself or for the benefit of
      the
      Second Lien Claimholders, on such Collateral, and the obligations of such
      Grantor under its guaranty of the Second Lien Obligations, shall be
      automatically, unconditionally and simultaneously released. The Second Lien
      Collateral Agent, for itself or on behalf of any such Second Lien Claimholders,
      promptly shall execute and deliver to the First Lien Collateral Agent or such
      Grantor such termination statements, releases and other documents as the First
      Lien Collateral Agent or such Grantor may request to effectively confirm such
      release.

     

    (c)  Until
      the
      Discharge of First Lien Obligations occurs, the Second Lien Collateral Agent,
      for itself and on behalf of the Second Lien Claimholders, hereby irrevocably
      constitutes and appoints the First Lien Collateral Agent and any officer or
      agent of the First Lien Collateral Agent, with full power of substitution,
      as
      its true and lawful attorney-in-fact with full irrevocable power and authority
      in the place and stead of the Second Lien Collateral Agent or such holder or
      in
      the First Lien Collateral Agent’s own name, from time to time in the First Lien
      Collateral Agent’s discretion, for the purpose of carrying out the terms of this
      Section 5.1, to take any and all appropriate action and to execute any and
      all documents and instruments which may be necessary to accomplish the purposes
      of this Section 5.1, including any endorsements or other instruments of
      transfer or release.

     

    5.2  Insurance.
      Unless
      and until the Discharge of First Lien Obligations has occurred, the First Lien
      Collateral Agent and the First Lien Claimholders shall have the sole and
      exclusive right, subject to the rights of the Grantors under the First Lien
      Loan
      Documents, to adjust settlement for any insurance policy covering the Collateral
      in the event of any loss thereunder and to approve any award granted in any
      condemnation or similar proceeding (or any deed in lieu of condemnation)
      affecting the Collateral. Unless and until the Discharge of First Lien
      Obligations has occurred, and subject to the rights of the Grantors under the
      First Lien Collateral Documents, all proceeds of any such policy and any such
      award (or any payments with respect to a deed in lieu of condemnation) if in
      respect to the Collateral shall be paid to the First Lien Collateral Agent
      for
      the benefit of the First Lien Claimholders pursuant to the terms of the First
      Lien Loan Documents (including, without limitation, for purposes of cash
      collateralization of commitments, letters of credit and Bank Products) and
      thereafter, to the extent no First Lien Obligations are outstanding, and subject
      to the rights of the Grantors under the Second Lien Collateral Documents, to
      the
      Second Lien Collateral Agent for the benefit of the Second Lien Claimholders
      to
      the extent required under the Second Lien Collateral Documents and then, to
      the
      extent no Second Lien Obligations are outstanding, to the owner of the subject
      property, such other Person as may be entitled thereto or as a court of
      competent jurisdiction may otherwise direct. Until the Discharge of First Lien
      Obligations has occurred, if the Second Lien Collateral Agent or any Second
      Lien
      Claimholders shall, at any time, receive any proceeds of any such insurance
      policy or any such award or payment in contravention of this Agreement, it
      shall
      pay such proceeds over to the First Lien Collateral Agent in accordance with
      the
      terms of Section 4.2 of this Agreement.

     

    
      
        
        

      

      
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    5.3  Amendments
      to First Lien Loan Documents and Second Lien Loan Documents.

     

    (a)  Subject
      to the terms of this Agreement, each of the Second Lien Claimholders and the
      Second Lien Collateral Agent agrees the First Lien Loan Documents and any and
      all collateral therefor and guarantees thereof, may be amended, supplemented,
      restated, extended, renewed, replaced or otherwise modified in accordance with
      their terms and the First Lien Credit Agreement and other First Lien Loan
      Documents may be Refinanced, and the First Lien Claimholders and the First
      Lien
      Collateral Agent may grant waivers or extensions of time or performance to
      and
      make compromises, including releases of collateral or guarantees, and
      settlements with any of the Grantors and all other persons, in each case,
      without notice to, or the consent of the Second Lien Collateral Agent or any
      of
      the Second Lien Claimholders, but otherwise subject to the terms of this
      Agreement all without affecting the lien subordination or other provisions
      of
      this Agreement. 

     

    (b)  Without
      the prior written consent of the First Lien Collateral Agent, no Second Lien
      Loan Document may be amended, supplemented, restated, extended, renewed,
      replaced or otherwise modified or entered into to the extent such amendment,
      supplement, restatement, extension, renewal, replacement or modification, or
      the
      terms of any new Second Lien Loan Document, would:

     

    (1)  increase
      the principal or the interest rate or yield provisions or otherwise change
      or
      add fees or premiums applicable to the Second Lien Obligations (excluding
      increases resulting from the accrual of interest at the default rate as provided
      in the Second Lien Loan Documents on the date hereof);

     

    (2)  (x) add
      any representations, warranties, covenants (financial or otherwise), default
      or
      Event of Default thereunder (other than additional reporting or information
      requirements) or (y) change any representation, warranty, covenant, default
      or Event of Default thereunder (other than to eliminate any such representation,
      covenant, warranty, default or Event of Default or to increase any grace period
      related thereto or otherwise to make such representation, warranty, covenant,
      default or Event of Default or condition less restrictive or burdensome on
      the
      Grantors; it being understood that in no event shall any such change reduce
      the
      amount of permitted First Lien Obligations or priority liens
      thereon);

     

    
      
        
        

      

      
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    (3)  change
      (to earlier dates) any dates upon which payments of principal or interest are
      due thereon or change amounts due on any date or change the maturity date (other
      than to extend the maturity date or reduce amounts due on any
      date);

     

    (4)  change
      the prepayment provisions thereof (other than to reduce any required amount
      thereof or to extend time for payment thereof), or change any collateral
      therefor (other than to release such collateral);

     

    (5)  increase
      the obligations of the obligor thereunder or confer any additional rights on
      the
      lenders under the Second Lien Credit Agreement (or a representative on their
      behalf) which would be adverse to any Grantor or First Lien Lenders;
      or

     

    (6)  contravene
      the provisions of this Agreement.

     

    (c)  The
      Second Lien Credit Agreement may be Refinanced in whole but not in part (but
      not
      with cash proceeds from any equity issuance or capital contribution) to the
      extent the terms and conditions of such Refinancing debt are not less favorable
      to the Grantors and to the First Lien Lenders or the other First Lien
      Obligations than the Second Lien Loan Documents (as permitted to be amended,
      supplemented or otherwise modified pursuant to Section 5.3(b)), as
      determined in the reasonable opinion of the First Lien Collateral Agent, acting
      on behalf of the First Lien Lenders, the then outstanding aggregate principal
      amount of the Second Lien Obligations is not increased, the average life to
      maturity thereof is greater than or equal to that of the Second Lien Credit
      Agreement and all other terms and provisions of such refinancing debt are
      acceptable to the First Lien Collateral Agent and the holders of such
      Refinancing debt bind themselves in writing to the terms of this
      Agreement.

     

    (d)  No
      Second
      Lien Lender or Second Lien Collateral Agent shall sell, assign, dispose of
      or
      otherwise transfer all or any portion of its Second Lien Obligations or resign
      as agent unless the transferee thereof shall have executed and delivered an
      Acknowledgement and Consent, in a form acceptable to the First Lien Collateral
      Agent, providing for the agreement of such transferee to be bound by the
      provisions of this Agreement as a “Second Lien Lender” or “Second Lien
      Collateral Agent” hereunder. Notwithstanding any failure of any such transferee
      to execute and deliver such an Acknowledgement and Consent, this Agreement
      shall
      survive any sale, assignment, disposal or other transfer of all or any portion
      of the Second Lien Obligations to such transferee or replacement of the Second
      Lien Collateral Agent and the terms of this Agreement shall be binding upon
      the
      successors and assigns of the Second Lien Lenders and Second Lien Collateral
      Agent, as provided herein.

     

    (e)  Each
      of
      the Company and the Second Lien Collateral Agent agrees that each Second Lien
      Collateral Document shall include the following language (or language to similar
      effect approved by the First Lien Collateral Agent):

     

    “Notwithstanding
      anything herein to the contrary, the lien and security interest granted to
      the
      Second Lien Collateral Agent pursuant to this Agreement and the exercise of
      any
      right or remedy by the Second Lien Collateral Agent hereunder are subject to
      the
      provisions of the Intercreditor Agreement, dated as of March __, 2006 (as
      amended, restated, supplemented or otherwise modified from time to time, the
      “Intercreditor Agreement”), among Modtech Holdings, Inc., Bank of America, N.A.,
      as First Lien Collateral Agent and Amphora Limited, as Second Lien Collateral
      Agent and certain other persons party or that may become party thereto from
      time
      to time. In the event of any conflict between the terms of the Intercreditor
      Agreement and this Agreement, the terms of the Intercreditor Agreement shall
      govern and control.”

     

    
      
        
        

      

      
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    In
      addition, the Company agrees that each Second Lien Mortgage covering any
      Collateral shall contain such other language as the First Lien Collateral Agent
      may reasonably request to reflect the subordination of such Second Lien Mortgage
      to the First Lien Collateral Document covering such Collateral.

     

    (f)  In
      the
      event any First Lien Collateral Agent or the First Lien Claimholders and the
      relevant Grantor enter into any amendment, waiver or consent in respect of
      any
      of the First Lien Collateral Documents for the purpose of adding to, or deleting
      from, or waiving or consenting to any departures from any provisions of, any
      First Lien Collateral Document or changing in any manner the rights of the
      First
      Lien Collateral Agent, such First Lien Claimholders, the Company or any other
      Grantor thereunder, then such amendment, waiver or consent shall apply
      automatically to any comparable provision of the Comparable Second Lien
      Collateral Document without the consent of the Second Lien Collateral Agent
      or
      the Second Lien Claimholders and without any action by the Second Lien
      Collateral Agent, the Company or any other Grantor, provided, that no such
      amendment, waiver or consent shall have the effect of: (1) removing assets
      subject to the Lien of the Second Lien Collateral Documents, except to the
      extent that a release of such Lien is permitted or required by Section 5.1
      of this Agreement; or (2) imposing duties on the Second Lien Collateral
      Agent without its consent.

     

    5.4  Bailee
      for Perfection.

     

    (a)  The
      First
      Lien Collateral Agent agrees to hold (subject always to the rights of the First
      Lien Collateral Agent as a prior Lien holder) that part of the Collateral that
      is in its possession or control (or in the possession or control of its agents
      or bailees) to the extent that possession or control thereof is taken to perfect
      a Lien thereon under the UCC (such Collateral being the “Pledged Collateral”) as
      collateral agent for the First Lien Claimholders and as bailee for the Second
      Lien Collateral Agent (such bailment being intended, among other things, to
      satisfy the requirements of Section 8-301(a)(2) and 9-313(c) of the UCC)
      and any assignee solely for the purpose of perfecting the security interest
      granted under the First Lien Loan Documents and the Second Lien Loan Documents,
      respectively, subject to the terms and conditions of this
      Section 5.4.

     

    (b)  The
      First
      Lien Collateral Agent shall have no duties or obligation whatsoever to the
      First
      Lien Claimholders, the Second Lien Collateral Agent or any Second Lien
      Claimholder to ensure that the Pledged Collateral is genuine or owned by any
      of
      the Grantors or to preserve rights or benefits of any Person except as expressly
      set forth in this Section 5.4. The duties or responsibilities of the First
      Lien Collateral Agent under this Section 5.4 shall be limited solely to
      holding the Pledged Collateral as bailee in accordance with this
      Section 5.4.

     

    
      
        
        

      

      
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    (c)  The
      First
      Lien Collateral Agent acting pursuant to this Section 5.4 shall not have by
      reason of the First Lien Collateral Documents, the Second Lien Collateral
      Documents, this Agreement or any other document a fiduciary relationship in
      respect of the First Lien Claimholders, the Second Lien Collateral Agent or
      any
      Second Lien Claimholder.

     

    (d)  Upon
      the
      Discharge of First Lien Obligations under the First Lien Loan Documents to
      which
      the First Lien Collateral Agent is a party, the First Lien Collateral Agent
      shall deliver the remaining Pledged Collateral (if any) together with any
      necessary endorsements, first, to the Second Lien Collateral Agent to the extent
      Second Lien Obligations remain outstanding, and second, to the Company to the
      extent no First Lien Obligations or Second Lien Obligations remain outstanding
      (in each case, so as to allow such Person to obtain control of such Pledged
      Collateral). The First Lien Collateral Agent further agrees to take all other
      action reasonably requested by the Second Lien Collateral Agent in connection
      with the Second Lien Collateral Agent obtaining a first-priority interest in
      the
      Collateral or as a court of competent jurisdiction may otherwise
      direct.

     

    5.5  When
      Discharge of First Lien Obligations Deemed to Not Have Occurred.
      If, at
      any time after the Discharge of First Lien Obligations has occurred, the Company
      thereafter enters into any Refinancing of any First Lien Loan Document
      evidencing a First Lien Obligation which Refinancing is permitted by this
      Agreement, then such Discharge of First Lien Obligations shall automatically
      be
      deemed not to have occurred for all purposes of this Agreement (other than
      with
      respect to any actions taken as a result of the occurrence of such first
      Discharge of First Lien Obligations), and, from and after the date on which
      the
      New First Lien Debt Notice is delivered to the Second Lien Collateral Agent
      in
      accordance with the next sentence, the obligations under such Refinancing of
      the
      First Lien Loan Document shall automatically be treated as First Lien
      Obligations for all purposes of this Agreement, including for purposes of the
      Lien priorities and rights in respect of Collateral set forth herein, and the
      First Lien Collateral Agent under such First Lien Loan Documents shall be the
      First Lien Collateral Agent for all purposes of this Agreement. Upon receipt
      of
      a notice (the “New First Lien Debt Notice”) stating that the Company has entered
      into a new First Lien Loan Document (which notice shall include the identity
      of
      the new First Lien Collateral Agent, such agent, the “New Agent”), the Second
      Lien Collateral Agent shall promptly (a) enter into such documents and
      agreements (including amendments or supplements to this Agreement) as the
      Company or such New Agent shall reasonably request in order to provide to the
      New Agent the rights contemplated hereby, in each case consistent in all
      material respects with the terms of this Agreement and (b) deliver to the
      New Agent any Pledged Collateral held by it together with any necessary
      endorsements (or otherwise allow the New Agent to obtain control of such Pledged
      Collateral). The New Agent shall agree to be bound by the terms of this
      Agreement.

     

    SECTION
      6.  Insolvency
      or Liquidation Proceedings.

     

    6.1  Finance
      and Sale Issues.
      Until
      the Discharge of First Lien Obligations has occurred, if the Company or any
      other Grantor shall be subject to any Insolvency or Liquidation Proceeding
      and
      the First Lien Collateral Agent shall desire to permit the use of “Cash
      Collateral” (as such term is defined in Section 363(a) of the Bankruptcy
      Code), on which the First Lien Collateral Agent or any other creditor has a
      Lien
      or to permit the Company or any other Grantor to obtain financing, whether
      from
      the First Lien Claimholders or any other entity under Section 363 or 364 of
      the Bankruptcy Code or any similar Bankruptcy Law (“DIP Financing”), then the
      Second Lien Collateral Agent, on behalf of itself and the Second Lien
      Claimholders, agrees that it will raise no objection to such Cash Collateral
      use
      or DIP Financing and will not request adequate protection or any other relief
      in
      connection therewith (except, as expressly agreed by the First Lien Collateral
      Agent) and, to the extent the Liens securing the First Lien Obligations are
      subordinated to or pari passu with such DIP Financing, the Second Lien
      Collateral Agent will subordinate its Liens in the Collateral to the Liens
      securing such DIP Financing (and all Obligations relating thereto). Without
      limiting the generality of any other provision of this Agreement, where the
      First Lien Collateral Agent has agreed to the use of cash collateral in such
      an
      instance, only such cash collateral that is actually distributed to (or
      permitted to be retained by) the First Lien Collateral Agent for final
      application against the First Lien Obligations or the Second Lien Obligations
      shall be subject to the application provisions of Section 4.1. Otherwise,
      in such an instance, any cash collateral permitted to be used by the Company
      or
      any Grantor shall not be subject to such application provisions. Without
      limiting the generality of any other provision of this Agreement, where the
      First Lien Collateral Agent shall desire to permit the Company or any other
      Grantor to obtain DIP Financing and such DIP Financing has been authorized
      by an
      unstayed order or judgment of the court with jurisdiction over such proceeding
      in form and substance acceptable to the First Lien Collateral Agent,
      Section 4.1 automatically shall be deemed to have been rewritten in a
      manner that reflects the priority of payment to which the First Lien Collateral
      Agent has agreed in approving such DIP Financing, including in the event that
      the First Lien Collateral Agent has agreed that the obligations owing under
      such
      DIP Financing may or shall be paid from Collateral proceeds as first priority
      in
      the “waterfall” set forth in Section 4.1 (with each class in the current
      order of application in such Section then being lowered one notch), and any
      reference herein to Section 4.1 shall be to Section 4.1 as so
      rewritten. Notwithstanding any other provision contained in this Agreement
      to
      the contrary, the provisions of the immediately preceding sentence shall apply
      only where the First Lien Collateral Agent affirmatively has consented in
      writing to such DIP Financing. Where the First Lien Collateral Agent has not
      so
      consented in writing to any such DIP Financing, including where any DIP
      Financing has been approved by such court over the First Lien Collateral Agent’s
      express objection, there shall be no deemed change to the provisions of
      Section 4.1, and such provisions (as well as the other provisions of this
      Agreement) shall continue to apply to the relative rights of the First Lien
      Claimholders, on the one hand, and the Second Lien Claimholders, on the other
      hand. The Second Lien Collateral Agent on behalf of the Second Lien
      Claimholders, agrees that it will raise no objection or oppose a motion to
      sell
      or otherwise dispose of any Collateral free and clear of its Liens or other
      claims under Section 363 of the Bankruptcy Code if the requisite First Lien
      Claimholders have consented to such sale or disposition of such
      assets.

     

    
      
        
        

      

      
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    6.2  Relief
      from the Automatic Stay.
      Until
      the Discharge of First Lien Obligations has occurred, the Second Lien Collateral
      Agent, on behalf of itself and the Second Lien Claimholders, agrees that none
      of
      them shall seek (or support any other Person seeking) relief from the automatic
      stay or any other stay in any Insolvency or Liquidation Proceeding in respect
      of
      the Collateral, without the prior written consent of the First Lien Collateral
      Agent.

     

    6.3  Adequate
      Protection.

     

    (a)  The
      Second Lien Collateral Agent, on behalf of itself and each of the Second Lien
      Claimholders, agrees that none of them shall object or contest (or support
      any
      other Person contesting):

     

    (1)  any
      request by the First Lien Collateral Agent or the First Lien Claimholders for
      adequate protection;

     

    (2)  any
      objection by the First Lien Collateral Agent or the First Lien Claimholders
      to
      any motion, relief, action or proceeding based on the First Lien Collateral
      Agent or the First Lien Claimholders claiming a lack of adequate protection;
      or

     

    (3)  the
      payment of interest, fees, expenses or other amounts to the First Lien
      Claimholders under Section 506(b) or 506(c) of the Bankruptcy Code or
      otherwise.

     

    (b)  Notwithstanding
      the foregoing provisions in this Section 6.3, in any Insolvency or
      Liquidation Proceeding in the event the Second Lien Collateral Agent, on behalf
      of itself and the Second Lien Claimholders, seeks or requests adequate
      protection in respect of Second Lien Obligations and such adequate protection
      is
      granted in the form of additional collateral (irrespective of the terms of
      this
      Agreement), then the Second Lien Collateral Agent, on behalf of itself or any
      of
      the Second Lien Claimholders, agrees that the First Lien Collateral Agent shall
      also be granted a senior Lien on such additional collateral as security for
      the
      First Lien Obligations and for any Cash Collateral use or DIP Financing provided
      by the First Lien Claimholders and that any Lien on such additional collateral
      securing the Second Lien Obligations shall be subordinated to the Liens on
      such
      collateral securing the First Lien Obligations and any such DIP Financing
      provided by the First Lien Claimholders (and all Obligations relating thereto)
      and to any other Liens granted to the First Lien Claimholders as adequate
      protection on the same basis as the other Liens securing the Second Lien
      Obligations are so subordinated to such First Lien Obligations under this
      Agreement.

     

    6.4  No
      Waiver; Voting.
      Nothing
      contained herein shall prohibit or in any way limit the First Lien Collateral
      Agent or any First Lien Claimholder from objecting in any Insolvency or
      Liquidation Proceeding or otherwise to any action taken by the Second Lien
      Collateral Agent or any of the Second Lien Claimholders, including the seeking
      by the Second Lien Collateral Agent or any Second Lien Claimholders of adequate
      protection or the asserting by the Second Lien Collateral Agent or any Second
      Lien Claimholders of any of its rights and remedies under the Second Lien Loan
      Documents or otherwise. In any Insolvency or Liquidation Proceeding, neither
      the
      Second Lien Collateral Agent nor any other Second Lien Claimholder shall
      (i) oppose, object to, or vote against any plan of reorganization or
      disclosure statement to the extent the terms of such plan or disclosure
      statement are consistent with the priorities and enforcement rights of the
      First
      Lien Claimholders under this Agreement or (ii) vote any claim in respect of
      Second Lien Obligations for any plan of reorganization of any Grantor unless
      (x) such plan provides for the payment in full in cash of all First Lien
      Obligations on the effective date of such plan of reorganization or
      (y) such plan provides for treatment of the First Lien Obligations in a
      manner that would result in such First Lien Obligations having relative lien
      (or, if the obligations, property or assets to be distributed in respect of
      the
      First Lien Obligations under such plan are unsecured, other) priority over
      the
      Second Lien Obligations to at least the same extent as if such obligations,
      property or assets were secured by Liens, whether or not such obligations,
      property or assets are, in fact, secured by any such Liens, and further requires
      (or does not purport to otherwise alter the provisions of this Agreement
      requiring) that all distributions on account of the Second Lien Obligations
      under such plan be delivered to the First Lien Collateral Agent and distributed
      as provided in Section 4.1.

     

    
      
        
        

      

      
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    6.5  Avoidance
      Issues.
      If any
      First Lien Claimholder is required in any Insolvency or Liquidation Proceeding
      or otherwise to turn over or otherwise pay to the estate of the Company or
      any
      other Grantor any amount paid in respect of First Lien Obligations (a
“Recovery”), then such First Lien Claimholders shall be entitled to a
      reinstatement of First Lien Obligations with respect to all such recovered
      amounts and a reinstatement of liens securing the First Lien Obligations with
      the priorities set forth herein, all as if any Discharge of First Lien
      Obligations had not occurred. If this Agreement shall have been terminated
      prior
      to such Recovery, this Agreement shall be reinstated in full force and effect
      as
      if no Discharge of First Lien Obligations had occurred, and such prior
      termination shall not diminish, release, discharge, impair or otherwise affect
      the obligations of the parties hereto, including without limitation, any
      turnover provisions hereof, which may then require the payment to the First
      Lien
      Claimholders by the Second Lien Claimholders.

     

    6.6  Reorganization
      Securities.
      If, in
      any Insolvency or Liquidation Proceeding, debt obligations of the reorganized
      debtor secured by Liens upon any property of the reorganized debtor are
      distributed pursuant to a plan of reorganization or similar dispositive
      restructuring plan, both on account of First Lien Obligations and on account
      of
      Second Lien Obligations, then, to the extent the debt obligations distributed
      on
      account of the First Lien Obligations and on account of the Second Lien
      Obligations are secured by Liens upon the same property, the provisions of
      this
      Agreement will survive the distribution of such debt obligations pursuant to
      such plan and will apply with like effect to the Liens securing such debt
      obligations.

     

    6.7  Post-Petition
      Interest.

     

    (a)  Neither
      the Second Lien Collateral Agent nor any Second Lien Claimholder shall oppose
      or
      seek to challenge any claim by the First Lien Collateral Agent or any First
      Lien
      Claimholder for allowance in any Insolvency or Liquidation Proceeding of First
      Lien Obligations consisting of post-petition interest, fees or expenses.
      Regardless of whether any such claim is allowed, and without limiting the
      generality of the other provisions of this Agreement, this Agreement expressly
      is intended to include and does include the “rule of explicitness” in that this
      Agreement expressly entitles the First Lien Claimholders to receive payment
      from
      the Collateral of any post-petition interest, fees or expenses through
      distributions made pursuant to the provisions of this Agreement even though
      such
      interest, fees, expenses are not allowed or allowable against the bankruptcy
      estate of the Company or any other Grantor under Section 502(b)(2) or
      Section 506(b) of the Bankruptcy Code or under any other provision of the
      Bankruptcy Code or any other Bankruptcy Law.

     

    
      
        
        

      

      
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    (b)  Neither
      the First Lien Collateral Agent nor any other First Lien Claimholder shall
      oppose or seek to challenge any claim by the Second Lien Collateral Agent or
      any
      Second Lien Claimholder for allowance in any Insolvency or Liquidation
      Proceeding of Second Lien Obligations consisting of post-petition interest,
      fees
      or expenses to the extent of the value of the Lien of the Second Lien Collateral
      Agent on behalf of the Second Lien Claimholders on the Collateral (after taking
      into account the Lien on the First Lien Collateral in favor of the First Lien
      Collateral Agent for the benefit of the First Lien Claimholders).

     

    6.8  Waiver.
      The
      Second Lien Collateral Agent, for itself and on behalf of the Second Lien
      Claimholders, waives any claim it may hereafter have against any First Lien
      Claimholder arising out of the election of any First Lien Claimholder of the
      application of Section 1111(b)(2) of the Bankruptcy Code, and/or out of any
      cash collateral or financing arrangement or out of any grant of a security
      interest in connection with the Collateral in any Insolvency or Liquidation
      Proceeding.

     

    6.9  Limitations.
      So long
      as the Discharge of First Lien Obligations has not occurred, without the express
      written consent of the First Lien Collateral Agent, none of the Second Lien
      Claimholders shall, in any Insolvency or Liquidation Proceeding involving any
      Grantor, (i) make an election pursuant to Section 1111(b) of the
      Bankruptcy Code, (ii) oppose or object to the determination of the extent
      of any Liens held by any of the First Lien Claimholders or the value of any
      claims of First Lien Claimholders under Section 506(a) of the Bankruptcy
      Code or (iii) oppose or object to the payment of interest and expenses
      under Sections 506(b) and (c) of the Bankruptcy Code.

     

    6.10  Separate
      Grants of Security and Separate Classification.
      The
      Second Lien Collateral Agent, for itself and on behalf of the Second Lien
      Claimholders, and the First Lien Collateral Agent for itself and on behalf
      of
      the First Lien Claimholders, acknowledges and agrees that:

     

    (a)  the
      grants of Liens pursuant to the First Lien Collateral Documents and the Second
      Lien Collateral Documents constitute two separate and distinct grants of Liens;
      and

     

    (b)  because
      of, among other things, their differing rights in the Collateral, the Second
      Lien Obligations are fundamentally different from the First Lien Obligations
      and
      must be separately classified in any plan of reorganization proposed or adopted
      in an Insolvency or Liquidation Proceeding.

     

    To
      further effectuate the intent of the parties as provided in the immediately
      preceding sentence, if it is held that the claims of the First Lien Claimholders
      and the Second Lien Claimholders in respect of the Collateral constitute only
      one secured claim (rather than separate classes of senior and junior secured
      claims), then each of the parties hereto hereby acknowledges and agrees that,
      subject to Sections 2.1 and 4.1, all distributions shall be made as if
      there were separate classes of senior and junior secured claims against the
      Grantors in respect of the Collateral (with the effect being that, to the extent
      that the aggregate value of the Collateral is sufficient (for this purpose
      ignoring all claims held by the Second Lien Claimholders), the First Lien
      Claimholders shall be entitled to receive, in addition to amounts distributed
      to
      them in respect of principal, pre-petition interest and other claims, all
      amounts owing in respect of post-petition interest, including any additional
      interest payable pursuant to the First Lien Credit Agreement, arising from
      or
      related to a default, which is disallowed as a claim in any Insolvency or
      Liquidation Proceeding) before any distribution is made in respect of the claims
      held by the Second Lien Claimholders, with the Second Lien Collateral Agent,
      for
      itself and on behalf of the Second Lien Claimholders, hereby acknowledging
      and
      agreeing to turn over to the First Lien Collateral Agent, for itself and on
      behalf of the First Lien Claimholders, amounts otherwise received or receivable
      by them to the extent necessary to effectuate the intent of this sentence,
      even
      if such turnover has the effect of reducing the claim or recovery of the Second
      Lien Claimholders).

     

    
      
        
        

      

      
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    SECTION
      7.  Reliance;
      Waivers; Etc.

     

    7.1  Reliance.
      Other
      than any reliance on the terms of this Agreement, the First Lien Collateral
      Agent, on behalf of itself and the First Lien Claimholders under its First
      Lien
      Loan Documents, acknowledges that it and such First Lien Claimholders have,
      independently and without reliance on the Second Lien Collateral Agent or any
      Second Lien Claimholders, and based on documents and information deemed by
      them
      appropriate, made their own credit analysis and decision to enter into such
      First Lien Loan Documents and be bound by the terms of this Agreement and they
      will continue to make their own credit decision in taking or not taking any
      action under the First Lien Credit Agreement or this Agreement. The Second
      Lien
      Collateral Agent, on behalf of itself and the Second Lien Claimholders,
      acknowledges that it and the Second Lien Claimholders have, independently and
      without reliance on the First Lien Collateral Agent or any First Lien
      Claimholder, and based on documents and information deemed by them appropriate,
      made their own credit analysis and decision to enter into each of the Second
      Lien Loan Documents and be bound by the terms of this Agreement and they will
      continue to make their own credit decision in taking or not taking any action
      under the Second Lien Loan Documents or this Agreement.

     

    7.2  No
      Warranties or Liability.
      The
      First Lien Collateral Agent, on behalf of itself and the First Lien Claimholders
      under the First Lien Loan Documents, acknowledges and agrees that each of the
      Second Lien Collateral Agent and the Second Lien Claimholders have made no
      express or implied representation or warranty, including with respect to the
      execution, validity, legality, completeness, collectability or enforceability
      of
      any of the Second Lien Loan Documents, the ownership of any Collateral or the
      perfection or priority of any Liens thereon. Except as otherwise provided
      herein, the Second Lien Claimholders will be entitled to manage and supervise
      their respective loans and extensions of credit under the Second Lien Loan
      Documents in accordance with law and as they may otherwise, in their sole
      discretion, deem appropriate. The Second Lien Collateral Agent, on behalf of
      itself and the Second Lien Obligations, acknowledges and agrees that the First
      Lien Collateral Agent and the First Lien Claimholders have made no express
      or
      implied representation or warranty, including with respect to the execution,
      validity, legality, completeness, collectability or enforceability of any of
      the
      First Lien Loan Documents, the ownership of any Collateral or the perfection
      or
      priority of any Liens thereon. Except as otherwise provided herein, the First
      Lien Claimholders will be entitled to manage and supervise their respective
      loans and extensions of credit under their respective First Lien Loan Documents
      in accordance with law and as they may otherwise, in their sole discretion,
      deem
      appropriate. The Second Lien Collateral Agent and the Second Lien Claimholders
      shall have no duty to the First Lien Collateral Agent or any of the First Lien
      Claimholders, and the First Lien Collateral Agent and the First Lien
      Claimholders shall have no duty to the Second Lien Collateral Agent or any
      of
      the Second Lien Claimholders, to act or refrain from acting in a manner which
      allows, or results in, the occurrence or continuance of an event of default
      or
      default under any agreements with the Company or any other Grantor (including
      the First Lien Loan Documents and the Second Lien Loan Documents), regardless
      of
      any knowledge thereof which they may have or be charged with.

     

    
      
        
        

      

      
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    7.3  No
      Waiver of Lien Priorities.

     

    (a)  No
      right
      of the First Lien Claimholders, the First Lien Collateral Agent or any of them
      to enforce any provision of this Agreement or any First Lien Loan Document
      shall
      at any time in any way be prejudiced or impaired by any act or failure to act
      on
      the part of the Company or any other Grantor or by any act or failure to act
      by
      any First Lien Claimholder or the First Lien Collateral Agent, or by any
      noncompliance by any Person with the terms, provisions and covenants of this
      Agreement, any of the First Lien Loan Documents or any of the Second Lien Loan
      Documents, regardless of any knowledge thereof which the First Lien Collateral
      Agent or the First Lien Claimholders, or any of them, may have or be otherwise
      charged with.

     

    (b)  Without
      in any way limiting the generality of the foregoing paragraph (but subject
      to
      the rights of the Company and the other Grantors under the First Lien Loan
      Documents), the First Lien Claimholders, the First Lien Collateral Agent and
      any
      of them may, at any time and from time to time in accordance with the First
      Lien
      Loan Documents and/or applicable law, without the consent of, or notice to,
      the
      Second Lien Collateral Agent or any Second Lien Claimholders, without incurring
      any liabilities to the Second Lien Collateral Agent or any Second Lien
      Claimholders and without impairing or releasing the Lien priorities and other
      benefits provided in this Agreement (even if any right of subrogation,
      reimbursement or contribution or other right or remedy of the Second Lien
      Collateral Agent or any Second Lien Claimholders is affected, impaired or
      extinguished thereby) do any one or more of the following:

     

    (1)  make
      loans and advances to any Grantor or issue, guarantee or obtain letters of
      credit for account of any Grantor or otherwise extend credit to any Grantor,
      in
      any amount and on any terms, whether pursuant to a commitment or as a
      discretionary advance and whether or not any default or event of default or
      failure of condition is then continuing;

     

    (2)  change
      the manner, place or terms of payment or change or extend the time of payment
      of, or amend, renew, exchange, increase or alter, the terms of any of the First
      Lien Obligations or any Lien on any First Lien Collateral or guaranty thereof
      or
      any liability of the Company or any other Grantor, or any liability incurred
      directly or indirectly in respect thereof (including any increase in or
      extension of the First Lien Obligations, without any restriction as to the
      tenor
      or terms of any such increase or extension) or otherwise amend, renew, exchange,
      extend, modify or supplement in any manner any Liens held by the First Lien
      Collateral Agent or any of the First Lien Claimholders, the First Lien
      Obligations or any of the First Lien Loan Documents;

     

    (3)  sell,
      exchange, release, surrender, realize upon, enforce or otherwise deal with
      in
      any manner and in any order any part of the First Lien Collateral or any
      liability of the Company or any other Grantor to the First Lien Claimholders
      or
      the First Lien Collateral Agent, or any liability incurred directly or
      indirectly in respect thereof;

     

    (4)  settle
      or
      compromise any First Lien Obligation or any other liability of the Company
      or
      any other Grantor or any security therefor or any liability incurred directly
      or
      indirectly in respect thereof and apply any sums by whomsoever paid and however
      realized to any liability (including the First Lien Obligations) in any manner
      or order;

     

    
      
        
        

      

      
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    (5)  exercise
      or delay in or refrain from exercising any right or remedy against the Company
      or any security or any other Grantor or any other Person, elect any remedy
      and
      otherwise deal freely with the Company, any other Grantor or any First Lien
      Collateral and any security and any guarantor or any liability of the Company
      or
      any other Grantor to the First Lien Claimholders or any liability incurred
      directly or indirectly in respect thereof; and

     

    (6)  release
      or discharge any First Lien Obligation or any guaranty thereof or any agreement
      or obligation of any Grantor or any other person or entity with respect
      thereto.

     

    (c)  Except
      as
      otherwise provided herein, the Second Lien Collateral Agent, on behalf of itself
      and the Second Lien Claimholders, also agrees that the First Lien Claimholders
      and the First Lien Collateral Agent shall have no liability to the Second Lien
      Collateral Agent or any Second Lien Claimholders, and the Second Lien Collateral
      Agent, on behalf of itself and the Second Lien Claimholders, hereby waives
      any
      claim against any First Lien Claimholder or the First Lien Collateral Agent,
      arising out of any and all actions which the First Lien Claimholders or the
      First Lien Collateral Agent may take or permit or omit to take with respect
      to:

     

    (1)  the
      First
      Lien Loan Documents;

     

    (2)  the
      collection of the First Lien Obligations; or

     

    (3)  the
      foreclosure upon, or sale, liquidation or other disposition of, any First Lien
      Collateral. The Second Lien Collateral Agent, on behalf of itself and the Second
      Lien Claimholders, agrees that the First Lien Claimholders and the First Lien
      Collateral Agent have no duty, express or implied, fiduciary or otherwise,
      to
      them in respect of the maintenance or preservation of the First Lien Collateral,
      the First Lien Obligations or otherwise. Neither the First Lien Collateral
      Agent
      nor any other First Lien Claimholder nor any of their respective directors,
      officers, employees or agents will be liable for failure to demand, collect
      or
      realize upon any of the Collateral or for any delay in doing so, or will be
      under any obligation to sell or otherwise dispose of any Collateral upon the
      request of the Company or any other Grantor or upon the request of the Second
      Lien Collateral Agent, any other holder of Second Lien Obligations or any other
      Person or to take any other action whatsoever with regard to the Collateral
      or
      any part thereof.

     

    (d)  The
      Second Lien Collateral Agent, on behalf of itself and the Second Lien
      Claimholders, agrees not to assert and hereby waives, to the fullest extent
      permitted by law, any right to demand, request, plead or otherwise assert or
      otherwise claim the benefit of, any marshalling, appraisal, valuation or other
      similar right that may otherwise be available under applicable law with respect
      to the Collateral or any other similar rights a junior secured creditor may
      have
      under applicable law.

     

    
      
        
        

      

      
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    (e)  Each
      creditor by accepting the benefits of the Collateral Documents agrees that
      the
      First Lien Collateral Agent shall not have any duty or obligation to realize
      first upon any type of Collateral or to sell, dispose of or otherwise liquidate
      all or any portion of the Collateral in any manner, including as a result of
      the
      application of the principles of marshaling or otherwise, that would maximize
      the return to any class of creditors holding Obligations of any type (whether
      First Lien Obligations or Second Lien Obligations), notwithstanding that the
      order and timing of any such realization, sale, disposition or liquidation
      may
      affect the amount of proceeds actually received by such class of creditors
      from
      such realization, sale, disposition or liquidation.

     

    7.4  Obligations
      Unconditional.
      All
      rights, interests, agreements and obligations of the First Lien Collateral
      Agent
      and the First Lien Claimholders and the Second Lien Collateral Agent and the
      Second Lien Claimholders, respectively, hereunder shall remain in full force
      and
      effect irrespective of:

     

    (a)  any
      lack
      of validity or enforceability of any First Lien Loan Documents or any Second
      Lien Loan Documents;

     

    (b)  any
      change in the time, manner or place of payment of, or in any other terms of,
      all
      or any of the First Lien Obligations or Second Lien Obligations, or any
      amendment or waiver or other modification, including any increase in the amount
      thereof, whether by course of conduct or otherwise, of the terms of any First
      Lien Loan Document or any Second Lien Loan Document;

     

    (c)  any
      exchange of any security interest in any Collateral or any other collateral,
      or
      any amendment, waiver or other modification, whether in writing or by course
      of
      conduct or otherwise, of all or any of the First Lien Obligations or Second
      Lien
      Obligations or any guaranty thereof;

     

    (d)  the
      commencement of any Insolvency or Liquidation Proceeding in respect of the
      Company or any other Grantor; or

     

    (e)  any
      other
      circumstances which otherwise might constitute a defense available to, or a
      discharge of, the Company or any other Grantor in respect of the First Lien
      Collateral Agent, the First Lien Obligations, or any First Lien Claimholder,
      the
      Second Lien Collateral Agent, the Second Lien Obligations or any Second Lien
      Claimholder in respect of this Agreement.

     

    
      
        
        

      

      
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    SECTION
      8.  Miscellaneous.

     

    8.1  Conflicts.
      In the
      event of any conflict between the provisions of this Agreement and the
      provisions of the First Lien Loan Documents or the Second Lien Loan Documents,
      the provisions of this Agreement shall govern and control.

     

    8.2  Effectiveness;
      Continuing Nature of this Agreement; Severability.
      This
      Agreement shall become effective when executed and delivered by the parties
      hereto. This is a continuing agreement of lien subordination and the First
      Lien
      Claimholders may continue, at any time and without notice to the Second Lien
      Collateral Agent or any Second Lien Claimholder to extend credit and other
      financial accommodations and lend monies to or for the benefit of the Company
      or
      any Grantor constituting First Lien Obligations in reliance hereof. The Second
      Lien Collateral Agent, on behalf of itself and the Second Lien Claimholders,
      hereby waives any right it may have under applicable law to revoke this
      Agreement or any of the provisions of this Agreement. The terms of this
      Agreement shall survive, and shall continue in full force and effect, in any
      Insolvency or Liquidation Proceeding. Without limiting the generality of the
      foregoing, this Agreement is intended to constitute and shall be deemed to
      constitute a “subordination agreement” within the meaning of Section 510(a)
      of the Bankruptcy Code and is intended to be and shall be interpreted to be
      enforceable to the maximum extent permitted pursuant to applicable nonbankruptcy
      law. Any provision of this Agreement which is prohibited or unenforceable in
      any
      jurisdiction shall not invalidate the remaining provisions hereof, and any
      such
      prohibition or unenforceability in any jurisdiction shall not invalidate or
      render unenforceable such provision in any other jurisdiction. All references
      to
      the Company or any other Grantor shall include the Company or such Grantor
      as
      debtor and debtor-in-possession and any receiver or trustee for the Company
      or
      any other Grantor (as the case may be) in any Insolvency or Liquidation
      Proceeding. This Agreement shall terminate and be of no further force and
      effect:

     

    (a)  with
      respect to the First Lien Collateral Agent, the First Lien Claimholders and
      the
      First Lien Obligations, upon the date of Discharge of First Lien Obligations
      and
      payment in full in cash of all Excluded First Lien Obligations, subject to
      the
      rights of the First Lien Claimholders under Sections 6.5 and 7;
      and

     

    (b)  with
      respect to the Second Lien Collateral Agent, the Second Lien Claimholders and
      the Second Lien Obligations, upon the later of (1) the date upon which the
      obligations under the Second Lien Credit Agreement terminate if there are no
      other Second Lien Obligations outstanding on such date and (2) if there are
      other Second Lien Obligations outstanding on such date, the date upon which
      such
      Second Lien Obligations terminate, subject to their obligations under Section
      4.1.

     

    8.3  Amendments;
      Waivers.
      No
      amendment, modification or waiver of any of the provisions of this Agreement
      by
      the Second Lien Collateral Agent or the First Lien Collateral Agent shall be
      deemed to be made unless the same shall be in writing signed on behalf of each
      party hereto or its authorized agent and each waiver, if any, shall be a waiver
      only with respect to the specific instance involved and shall in no way impair
      the rights of the parties making such waiver or the obligations of the other
      parties to such party in any other respect or at any other time. Notwithstanding
      the foregoing, the Company shall not have any right to consent to or approve
      any
      amendment, modification or waiver of any provision of this Agreement except
      to
      the extent to cause additional obligations to the Company.

     

    
      
        
        

      

      
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    8.4  Information
      Concerning Financial Condition of the Company and its
      Subsidiaries.
      The
      First Lien Collateral Agent and the First Lien Claimholders, on the one hand,
      and the Second Lien Claimholders and the Second Lien Collateral Agent, on the
      other hand, shall each be responsible for keeping themselves informed of
      (a) the financial condition of the Company and its Subsidiaries and all
      endorsers and/or guarantors of the First Lien Obligations or the Second Lien
      Obligations and (b) all other circumstances bearing upon the risk of
      nonpayment of the First Lien Obligations or the Second Lien Obligations. The
      First Lien Collateral Agent and the First Lien Claimholders shall have no duty
      to advise the Second Lien Collateral Agent or any Second Lien Claimholder of
      information known to it or them regarding such condition or any such
      circumstances or otherwise. In the event the First Lien Collateral Agent or
      any
      of the First Lien Claimholders, in its or their sole discretion, undertakes
      at
      any time or from time to time to provide any such information to the Second
      Lien
      Collateral Agent or any Second Lien Claimholder, it or they shall be under
      no
      obligation:

     

    (a)  to
      make,
      and the First Lien Collateral Agent and the First Lien Claimholders shall not
      make, any express or implied representation or warranty, including with respect
      to the accuracy, completeness, truthfulness or validity of any such information
      so provided;

     

    (b)  to
      provide any additional information or to provide any such information on any
      subsequent occasion;

     

    (c)  to
      undertake any investigation; or

     

    (d)  to
      disclose any information which, pursuant to accepted or reasonable commercial
      finance practices, such party wishes to maintain confidential or is otherwise
      required to maintain confidential.

     

    8.5  Subrogation.
      With
      respect to the value of any payments or distributions in cash, property or
      other
      assets that any of the Second Lien Claimholders or the Second Lien Collateral
      Agent pays over to the First Lien Collateral Agent or the First Lien
      Claimholders under the terms of this Agreement, the Second Lien Claimholders
      and
      the Second Lien Collateral Agent shall be subrogated to the rights of the First
      Lien Collateral Agent and the First Lien Claimholders; provided that, the Second
      Lien Collateral Agent, on behalf of itself and the Second Lien Claimholders,
      hereby waives and agrees not to assert or enforce all rights of subrogation,
      reimbursement or contribution it may acquire as a result of any payment
      hereunder until the Discharge of First Lien Obligations has occurred. The
      Company acknowledges and agrees that the value of any payments or distributions
      in cash, property or other assets received by the Second Lien Collateral Agent
      or the Second Lien Claimholders that are paid over to the First Lien Collateral
      Agent or the First Lien Claimholders pursuant to this Agreement shall not reduce
      any of the Second Lien Obligations.

     

    
      
        
        

      

      
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    8.6  Application
      of Payments.
      All
      payments received by the First Lien Collateral Agent or the First Lien
      Claimholders may be applied, reversed and reapplied, in whole or in part, to
      such part of the First Lien Obligations as the First Lien Claimholders, in
      their
      sole discretion deem appropriate. The Second Lien Collateral Agent, on behalf
      of
      itself and the Second Lien Claimholders, assents to any extension or
      postponement of the time of payment of the First Lien Obligations or any part
      thereof and to any other indulgence with respect thereto, to any substitution,
      exchange or release of any security which may at any time secure any part of
      the
      First Lien Obligations and to the addition or release of any other Person
      primarily or secondarily liable therefor.

     

    8.7  SUBMISSION
      TO JURISDICTION; WAIVERS.

     

    (a)  ALL
      JUDICIAL PROCEEDINGS BROUGHT AGAINST ANY PARTY ARISING OUT OF OR RELATING HERETO
      MAY BE BROUGHT IN ANY STATE OR FEDERAL COURT OF COMPETENT JURISDICTION IN LOS
      ANGELES, CALIFORNIA. BY EXECUTING AND DELIVERING THIS AGREEMENT, EACH PARTY,
      FOR
      ITSELF AND IN CONNECTION WITH ITS PROPERTIES, IRREVOCABLY:

     

    (1)  ACCEPTS
      GENERALLY AND UNCONDITIONALLY THE NONEXCLUSIVE JURISDICTION AND VENUE OF SUCH
      COURTS;

     

    (2)  WAIVES
      ANY DEFENSE OF FORUM NON CONVENIENS;

     

    (3)  AGREES
      THAT SERVICE OF ALL PROCESS IN ANY SUCH PROCEEDING IN ANY SUCH COURT MAY BE
      MADE
      BY REGISTERED OR CERTIFIED MAIL, RETURN RECEIPT REQUESTED, TO THE APPLICABLE
      PARTY AT ITS ADDRESS PROVIDED IN ACCORDANCE WITH SECTION 8.8;
      AND

     

    (4)  AGREES
      THAT SERVICE AS PROVIDED IN CLAUSE (3) ABOVE IS SUFFICIENT TO CONFER
      PERSONAL JURISDICTION OVER THE APPLICABLE PARTY IN ANY SUCH PROCEEDING IN ANY
      SUCH COURT, AND OTHERWISE CONSTITUTES EFFECTIVE AND BINDING SERVICE IN EVERY
      RESPECT.

     

    (b)  EACH
      OF THE PARTIES HERETO HEREBY AGREES TO WAIVE ITS RESPECTIVE RIGHTS TO A JURY
      TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING HEREUNDER. THE
      SCOPE
      OF THIS WAIVER IS INTENDED TO BE ALL-ENCOMPASSING OF ANY AND ALL DISPUTES THAT
      MAY BE FILED IN ANY COURT AND THAT RELATE TO THE SUBJECT MATTER HEREOF,
      INCLUDING CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS AND ALL OTHER
      COMMON LAW AND STATUTORY CLAIMS. EACH PARTY HERETO ACKNOWLEDGES THAT THIS WAIVER
      IS A MATERIAL INDUCEMENT TO ENTER INTO A BUSINESS RELATIONSHIP, THAT EACH HAS
      ALREADY RELIED ON THIS WAIVER IN ENTERING INTO THIS AGREEMENT, AND THAT EACH
      WILL CONTINUE TO RELY ON THIS WAIVER IN ITS RELATED FUTURE DEALINGS. EACH PARTY
      HERETO FURTHER WARRANTS AND REPRESENTS THAT IT HAS REVIEWED THIS WAIVER WITH
      ITS
      LEGAL COUNSEL AND THAT IT KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS
      FOLLOWING CONSULTATION WITH LEGAL COUNSEL. THIS WAIVER IS IRREVOCABLE, MEANING
      THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING (OTHER THAN BY A MUTUAL
      WRITTEN WAIVER SPECIFICALLY REFERRING TO THIS SECTION 8.7(b) AND EXECUTED
      BY EACH OF THE PARTIES HERETO), AND THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT
      AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS HERETO. IN THE EVENT OF
      LITIGATION, THIS AGREEMENT MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY
      THE
      COURT.

     

    
      
        
        

      

      
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    (c)  EACH
      OF THE PARTIES HERETO WAIVES ANY RIGHT IT MAY HAVE TO TRIAL BY JURY IN RESPECT
      OF ANY LITIGATION BASED ON, OR ARISING OUT OF, UNDER OR IN CONNECTION WITH
      THIS
      AGREEMENT OR ANY OTHER FIRST LIEN LOAN DOCUMENT OR SECOND LIEN LOAN DOCUMENT,
      OR
      ANY COURSE OF CONDUCT, COURSE OF DEALING, VERBAL OR WRITTEN STATEMENT OR ACTION
      OF ANY PARTY HERETO.

     

    (d)  EXCEPT
      AS PROHIBITED BY LAW, EACH OF THE PARTIES HEREBY WAIVES ANY RIGHT WHICH IT
      MAY
      HAVE TO CLAIM OR RECOVER IN ANY LITIGATION REFERRED TO IN THE PRECEDING
      PARAGRAPH ANY SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OR ANY
      DAMAGES OTHER THAN, OR IN ADDITION TO, ACTUAL DAMAGES.

     

    8.8  Notices.
      All
      notices to the Second Lien Claimholders and the First Lien Claimholders
      permitted or required under this Agreement shall also be sent to the Second
      Lien
      Collateral Agent and the First Lien Collateral Agent, respectively. Unless
      otherwise specifically provided herein, any notice hereunder shall be in writing
      and may be personally served, telexed or sent by telefacsimile or United States
      mail or courier service and shall be deemed to have been given when delivered
      in
      person or by courier service and signed for against receipt thereof, upon
      receipt of telefacsimile or telex, or three Business Days after depositing
      it in
      the United States mail with postage prepaid and properly addressed. For the
      purposes hereof, the addresses of the parties hereto shall be as set forth
      below
      each party’s name on the signature pages hereto, or, as to each party, at such
      other address as may be designated by such party in a written notice to all
      of
      the other parties.

     

    8.9  Further
      Assurances.
      The
      First Lien Collateral Agent, on behalf of itself and the First Lien Claimholders
      under the First Lien Loan Documents, and the Second Lien Collateral Agent,
      on
      behalf of itself and the Second Lien Claimholders under the Second Lien Loan
      Documents, and the Company, agree that each of them shall take such further
      action and shall execute and deliver such additional documents and instruments
      (in recordable form, if requested) as the First Lien Collateral Agent or the
      Second Lien Collateral Agent may reasonably request to effectuate the terms
      of
      and the Lien priorities contemplated by this Agreement.

     

    
      
        
        

      

      
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    8.10  APPLICABLE
      LAW.
      THIS
      AGREEMENT SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN
      ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.

     

    8.11  Binding
      on Successors and Assigns.
      This
      Agreement shall be binding upon the Company, the Grantors, the First Lien
      Collateral Agent, the First Lien Claimholders, the Second Lien Collateral Agent,
      the Second Lien Claimholders and their respective successors and
      assigns.

     

    8.12  Specific
      Performance.
      Each of
      the First Lien Collateral Agent and the Second Lien Collateral Agent may demand
      specific performance of this Agreement. The First Lien Collateral Agent, on
      behalf of itself and the First Lien Claimholders under the First Lien Loan
      Documents, and the Second Lien Collateral Agent, on behalf of itself and the
      Second Lien Claimholders, hereby irrevocably waive any defense based on the
      adequacy of a remedy at law and any other defense which might be asserted to
      bar
      the remedy of specific performance in any action which may be brought by the
      First Lien Collateral Agent or the First Lien Claimholders or the Second Lien
      Collateral Agent or the Second Lien Claimholders, as the case may
      be.

     

    8.13  Headings.
      Section
      headings in this Agreement are included herein for convenience of reference
      only
      and shall not constitute a part of this Agreement for any other purpose or
      be
      given any substantive effect.

     

    8.14  Counterparts.
      This
      Agreement may be executed in counterparts (and by different parties hereto
      in
      different counterparts), each of which shall constitute an original, but all
      of
      which when taken together shall constitute a single contract. Delivery of an
      executed counterpart of a signature page of this Agreement or any document
      or
      instrument delivered in connection herewith by telecopy shall be effective
      as
      delivery of a manually executed counterpart of this Agreement or such other
      document or instrument, as applicable.

     

    8.15  Authorization.
      By its
      signature, each Person executing this Agreement on behalf of a party hereto
      represents and warrants to the other parties hereto that it is duly authorized
      to execute this Agreement.

     

    8.16  No
      Third Party Beneficiaries.
      This
      Agreement and the rights and benefits hereof shall inure to the benefit of
      each
      of the parties hereto and its respective successors and assigns and shall inure
      to the benefit of each of the First Lien Claimholders and the Second Lien
      Claimholders. No other Person shall have or be entitled to assert rights or
      benefits hereunder.

     

    8.17  Provisions
      Solely to Define Relative Rights.
      The
      provisions of this Agreement are and are intended solely for the purpose of
      defining the relative rights of the First Lien Claimholders on the one hand
      and
      the Second Lien Claimholders on the other hand. None of the Company, any other
      Grantor or any other creditor thereof shall have any rights hereunder and
      neither the Company nor any Grantor may rely on the terms hereof. Nothing in
      this Agreement is intended to or shall impair the obligations of the Company
      or
      any other Grantor, which are absolute and unconditional, to pay the First Lien
      Obligations and the Second Lien Obligations as and when the same shall become
      due and payable in accordance with their terms.

     

    
      
        
        

      

      
        34

        
          

        

      

      
        
        

      

    

     

    8.18  Interpretation.
      This
      Agreement and the other documents relating to this Agreement are the result
      of
      negotiations among and have been reviewed by counsel to the First Lien
      Collateral Agent, the First Lien Claimholders, the Second Lien Collateral Agent
      and the Second Lien Claimholders, and certain of the other parties, and are
      the
      products of all parties. Accordingly, they shall not be construed against any
      party merely because of such party’s involvement in their
      preparation.

     

    8.19  Option
      to Purchase First Lien Obligations.

     

    (a)  Upon
      the
      delivery by the First Lien Collateral Agent to the Second Lien Collateral Agent
      of written notice in accordance with this Section 8.19(a) (a “Trigger
      Notice”)
      of the
      First Lien Collateral Agent and the First Lien Lenders (x) accelerating the
      First Lien Obligations or (y) their intent to commence any foreclosure or other
      action to sell or otherwise realize upon all or substantially all of the
      Collateral, the Second Lien Collateral Agent or any or all of the Second Lien
      Lenders, as a single group, shall have an option, exercised by delivery of
      written notice by the Second Lien Collateral Agent to the First Lien Collateral
      Agent (a “Purchase
      Notice”)
      given
      by a same-day facsimile or personal delivery, to purchase all (but not less
      than
      all) of the First Lien Obligations (at the “Purchase Price” referred to in
      Section 8.19(d) below) from the First Lien Collateral Agent and the First
      Lien Lenders. The Purchase Notice shall specify which Second Lien Lenders (the
      “Purchasing
      Second Lien Lenders”)
      will
      purchase the First Lien Obligations. The Purchase Notice shall be irrevocable.
      If the Second Lien Collateral Agent does not deliver such Purchase Notice within
      ten (10) Business Days of the delivery of the Trigger Notice, the purchase
      right
      of the Second Lien Collateral Agent and the other Second Lien Lenders hereunder
      with respect to such Trigger Notice shall expire and be of no force and
      effect.

     

    (b)  The
      First
      Lien Collateral Agent shall deliver to the Second Lien Collateral Agent the
      Trigger Notice referred to in Section 8.19(a) above (i) in the absence
      of an Exigent Circumstance (defined below), not more than five (5) Business
      Days
      prior to the taking of the earliest of the actions described in
      Section 8.19(a)(y), or (ii) if Exigent Circumstances exist, as soon as
      practicable and in any event not more than five (5) Business Days after the
      taking of action described in Section 8.19(a)(y) or (iii) in the case of
      acceleration of the First Lien Obligations, as soon as practicable and in any
      event not more than five (5) Business Days after such acceleration. The Second
      Lien Collateral Agent may send to the First Lien Collateral Agent the Purchase
      Notice referred to in Section 8.19(a) above within five (5) Business Days
      of receipt of such Trigger Notice, in which event, in the absence of Exigent
      Circumstances, the First Lien Collateral Agent and the other First Lien Lenders
      shall not commence any foreclosure or other action to sell or otherwise realize
      upon such Collateral, as the case may be, provided,
      that,
      the
      purchase and sale with respect to the First Lien Obligations provided for in
      this Section 8.19 shall have closed within ten (10) Business Days after
      receipt by the First Lien Collateral Agent of the Purchase Notice and the First
      Lien Collateral Agent shall have received payment in full in cash of the
      Purchase Price for the First Lien Obligations as provided for herein within
      such
      five (5) Business Day period. As used herein, “Exigent
      Circumstance”
shall
      mean (i) an Insolvency or Liquidation Proceeding by or against any Grantor,
      (ii) an exercise by another lender of enforcement rights or remedies with
      respect to particular Collateral having an aggregate fair market value in excess
      of $1,000,000, or (iii) an event or circumstance that materially and
      imminently threatens the ability of the First Lien Collateral Agent to realize
      upon all or a material part of the Collateral, such as, without limitation,
      fraudulent removal or concealment thereof, destruction (other than to the extent
      covered by insurance) or material waste thereof.

     

    
      
        
        

      

      
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    (c)  On
      the
      date specified by the Second Lien Collateral Agent in the Purchase Notice (which
      shall not be more than ten (10) Business Days after the receipt by the First
      Lien Collateral Agent of the Purchase Notice), the First Lien Collateral Agent
      and the other First Lien Lenders shall sell to the Second Lien Collateral Agent
      and the other Second Lien Lenders, without recourse or warranty (except as
      specified in Section 8.19(e)) of any kind, and the Second Lien Collateral
      Agent and the other Second Lien Lenders shall purchase from the First Lien
      Collateral Agent and the other First Lien Lenders all (but not less than all)
      of
      the First Lien Obligations. From and after such sale and purchase of the First
      Lien Obligations, subject to the provisions of Section 8.19(d) hereof, the
      Second Lien Collateral Agent and the other Second Lien Lenders shall be parties
      to the First Lien Credit Agreement and the other First Lien Loan Documents,
      and
      shall have the rights and remedies and obligations and responsibilities of
      the
      First Lien Collateral Agent and other First Lien Lenders thereunder, and the
      First Lien Collateral Agent and the other First Lien Lenders shall have assigned
      their rights and remedies and shall have been released from their obligations
      and responsibilities under the First Lien Credit Agreement and the other First
      Lien Loan Documents and shall cease to be parties thereto. The First Lien
      Claimholders and the Second Lien Claimholders will execute an assignment and
      acceptance agreement, in a form acceptable to the First Lien Collateral Agent
      to
      assign the entire First Lien Obligations (as opposed to a percentage share
      thereof), to assign the agency to the Second Lien Collateral Agent, to otherwise
      reflect the terms of this Section 8.19, and to evidence the purchase and
      sale of the First Lien Obligations.

     

    (d)  Upon
      the
      date of such purchase and sale, the Purchasing Second Lien Lenders shall
      (i) pay to the First Lien Collateral Agent as the purchase price therefor
      (the “Purchase
      Price”)
      the
      full amount of all the First Lien Obligations then outstanding and unpaid,
      (ii) without duplication of (i), furnish cash collateral to the First Lien
      Collateral Agent to secure the First Lien Lenders with respect to
      (a) obligations under letters of credit in an amount equal to 105% of the
      aggregate undrawn face amount of any issued and outstanding letters of credit
      provided by the issuing bank (or any issued and outstanding letters of credit
      that the First Lien Collateral Agent has arranged to be provided by third
      parties pursuant to the financing arrangements of the First Lien Lenders with
      any Grantor) to the Company and, in any event, use reasonable efforts to replace
      all of such letters of credit with letters of credit issued by or for the
      account of the Purchasing Second Lien Lenders and (b) Bank Product
      Obligations in an amount equal to 100% of any Grantor’s obligations (as
      determined by the First Lien Collateral Agent), (iii) without duplication
      of (i), agree to reimburse the First Lien Collateral Agent and the other First
      Lien Lenders for any loss, cost, damage or expense (including attorneys’ fees
      and expenses) in connection with any commissions, fees, costs or expenses
      related to any issued and outstanding letters of credit and any checks or other
      payments provisionally credited to the First Lien Obligations, and/or as to
      which the First Lien Collateral Agent or any First Lien Claimholder has not
      yet
      received final payment, reasonably documented in writing,(iv) permit the
      First Lien Collateral Agent and the First Lien Lenders to retain Liens on the
      Collateral to secure any indemnification obligations of the Grantors that
      survive the termination of the First Lien Loan Documents, (v) without
      duplication of (i), agree to reimburse, within five (5) Business Days of written
      demand by the First Lien Collateral Agent therefore and reasonably documented
      in
      writing, the First Lien Collateral Agent and the other First Lien Lenders in
      respect of indemnification obligations of the Grantors under the First Lien
      Loan
      Documents as to matters or circumstances reasonably identified by the First
      Lien
      Collateral Agent in writing prior to such sale which would reasonably be
      expected to result in any loss, cost, damage or expense (including reasonable
      attorneys’ fees and legal expenses) to any First Lien Claimholder reasonably
      documented in writing, and (vi) agree to pay to the First Lien Collateral
      Agent and the other First Lien Lenders any of the other obligations in respect
      of the First Lien Obligations, within three (3) Business Days after receipt
      by
      the Second Lien Lenders of amounts sufficient to pay all or a portion of such
      other obligations. Such purchase price and cash collateral shall be remitted
      by
      wire transfer of immediately available federal funds to such bank account of
      the
      First Lien Collateral Agent as the First Lien Collateral Agent may designate
      in
      writing to the Second Lien Collateral Agent for such purpose. Interest shall
      be
      calculated to but excluding the Business Day on which such purchase and sale
      shall occur if the amounts so paid by the Purchasing Second Lien Lenders to
      the
      bank account designated by the First Lien Collateral Agent are received in
      such
      bank account prior to 1:00 p.m., New York time and interest shall be calculated
      to and including such Business Day if the amounts so paid by the Purchasing
      Second Lien Lenders to the bank account designated by the First Lien Collateral
      Agent are received in such bank account later than 1:00 p.m., New York
      time.

     

    
      
        
        

      

      
        36

        
          

        

      

      
        
        

      

    

    (e)  Such
      purchase shall be expressly made without representation or warranty of any
      kind
      by any of the First Lien Lenders as to the First Lien Obligations or otherwise
      and without recourse to any of the First Lien Lenders, except that each of
      the
      First Lien Lenders shall represent and warrant: (i) the amount of the First
      Lien Obligations being purchased from such First Lien Lender; (ii) that
      such First Lien Lender owns such First Lien Obligations free and clear of any
      Liens or encumbrances; and (iii) such First Lien Lenders has the right to
      assign such First Lien Obligations and the assignment is duly
      authorized.

     
 

    
      
        
        

        
        

      

      
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    IN
      WITNESS WHEREOF, the parties hereto have executed this Intercreditor Agreement
      as of the date first written above.

     

    
      	 	 	 First
              Lien
              Collateral Agent
	 
 	 
 	 
 BANK
              OF AMERICA, N.A.,
	 	 	 as
              First Lien Collateral Agent,
	 	 	 
	 	By:  	 
	 	
              

            
	 	 
	 	 
	 	55
              South
              Lake 
	 	 Pasadena, California
              91101


    

     

    
 

    
      
         

         

        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    
      	 	 	 
	 	 Second Lien Collateral Agent
	 	 
	 	AMPHORA
              LIMITED,
	 	 as Second Lien Collateral
              Agent
	 
 	 
 	 
 
	 	By:  	
              Amaranth
                Advisors L.L.C., Its Trading Advisor

            
	 	 	 
	 	 By:	 
	 	
              
Name:
	 	Title:
	 	 
	 	 c/o Amaranth Advisors L.L.C.
	 	 One
              American Lane
	 	Greenwich, CT 06831 
	 	 Attention:
              General Counsel
	 	 Facsimile: (203) 422-3540
	 	 Telephone: (203)
              422-3340


    

     

     

    
      	 	 	 	 
	 	 MODTECH HOLDINGS, INC	 	 
	 	 	 	 
	 By:	 	 	 
	 	
              
Name:	 	
            
	 	Title:	 	 
	 	 	 	 
	 	[NOTICE ADDRESS]