Unassociated Document


     

    
      Exhibit
10.3

       

    

    INTERCREDITOR
AGREEMENT

     

    Intercreditor
Agreement (this “Agreement”), dated as
of August 31, 2010, among JPMORGAN CHASE BANK, N.A., as Administrative Agent (in
such capacity, with its successors and assigns, and as more specifically defined
below, the “ABL
Representative”) for the ABL Secured Parties (as defined below), U.S.
BANK NATIONAL ASSOCIATION, as Trustee and as Noteholder Collateral Agent (in
such capacities, with its successors and assigns, and as more specifically
defined below, the “Notes
Representative”) for the Notes Secured Parties (as defined below), and
each of the Loan Parties (as defined below) party hereto.

     

    WHEREAS,
U.S. Concrete, Inc., a Delaware corporation (“Borrower”), the other
Loan Parties named therein, the ABL Representative and certain financial
institutions are parties to the Credit Agreement dated as of the date hereof
(the “Existing ABL
Agreement”), pursuant to which such financial institutions have agreed to
make loans and extend other financial accommodations to Borrower from time to
time;

     

    WHEREAS,
Borrower and the Notes Representative are parties to the Indenture dated as of
the date hereof (the “Existing Indenture”),
pursuant to Borrower issued its 9.5% Convertible Secured Notes due 2015 (the
“Notes”) to
certain financial institutions and other entities, and such Notes are guaranteed
by the Loan Parties (other than the Borrower);

     

    WHEREAS,
Borrower and each other Loan Party that is party to any ABL Guarantee has
granted to the ABL Representative security interests in the ABL Collateral as
security for payment and performance of the ABL Obligations;

     

    WHEREAS,
Borrower and each other Loan Party that is party to any Notes Guarantee has
granted to the Notes Representative security interests in the Notes Collateral
as security for payment and performance of the Notes Obligations;

     

    WHEREAS,
the ABL Obligations are to be secured by first priority liens on the ABL
Priority Collateral and second priority liens on the Notes Priority Collateral;
and

     

    WHEREAS,
the Notes Obligations are to be secured by first priority liens on the Notes
Priority Collateral and second priority liens on the ABL Priority
Collateral.

     

    NOW
THEREFORE, in consideration of the foregoing and the mutual covenants herein
contained and other good and valuable consideration, the existence and
sufficiency of which is expressly recognized by all of the parties hereto, the
parties agree as follows:

     

    SECTION
1.       Definitions; Rules of
Construction.

     

    1.1         UCC
Definitions.  Terms defined in the Uniform Commercial Code are
used herein as so defined, including, without limitation, the
following:  Accounts, As-Extracted Collateral, Chattel Paper,
Commercial Tort Claims, Commodity Account, Deposit Accounts, Documents,
Equipment, General Intangibles, Goods, Instruments, Inventory, Investment
Property, Letter of Credit, Letter of Credit Rights, Records, Securities Account
and Supporting Obligations.


    
      
         


      

      
        
        

        
          

        

      

      
         


      

    

     

    1.2         Defined
Terms.  The following terms, as used herein, have the following
meanings:

     

    “ABL Agreement” means
the collective reference to (a) the Existing ABL Agreement, (b) any Additional
ABL Agreement and (c) any other credit agreement, loan agreement, note
agreement, promissory note, indenture or other agreement or instrument
evidencing or governing the terms of any indebtedness or other financial
accommodation that has been incurred to extend, replace, refinance or refund in
whole or in part the indebtedness and other obligations outstanding under the
Existing ABL Agreement (regardless of whether such replacement, refunding or
refinancing is a “working capital” facility, asset-based facility or otherwise),
any Additional ABL Agreement or any other agreement or instrument referred to in
this clause (c) unless such agreement or instrument expressly provides that it
is not intended to be and is not an ABL Agreement hereunder (a “Replacement ABL
Agreement”).  Any reference to the ABL Agreement hereunder
shall be deemed a reference to any ABL Agreement then extant.

     

    “ABL Cap Amount” has
the meaning assigned to such term in the definition of “ABL
Obligations”.

     

    “ABL Collateral” means all
assets, whether now owned or hereafter acquired by any Loan Party, in which a
Lien is granted or purported to be granted at any time to any ABL Secured Party
as security for any ABL Obligation.

     

    “ABL Creditors” means,
collectively, the “Lenders” and the other “Secured Parties”, each as defined in
the ABL Agreement.

     

    “ABL DIP Financing”
has the meaning set forth in Section
5.2(a).

     

    “ABL Documents” means
the ABL Agreement, each ABL Security Document, each ABL Guarantee and each other
“Loan Document” as defined in the ABL Agreement.

     

    “ABL Excess Amount”
shall have the meaning assigned to such term in the definition of “ABL
Obligations”.

     

    “ABL Guarantee” means
any guarantee by any Loan Party of any or all of the ABL
Obligations.

     

    “ABL Lien” means any Lien created
by the ABL Security Documents.

     

    “ABL Obligations”
means (a) all principal of and interest (including without limitation any
Post-Petition Interest) and premium (if any) on all loans made pursuant to the
ABL Agreement or any ABL DIP Financing by the ABL Creditors, (b) all
reimbursement obligations (if any) and interest thereon (including without
limitation any Post-Petition Interest) with respect to any letter of credit or
similar instruments issued pursuant to the ABL Agreement, (c) all Swap
Obligations, (d) all Banking Services Obligations and (e) all guarantee
obligations, indemnities (other than Unasserted Contingent Obligations), fees,
expenses and other amounts payable from time to time pursuant to the ABL
Documents, in each case whether or not allowed or allowable in an Insolvency
Proceeding.  To the extent any payment with respect to any ABL
Obligation (whether by or on behalf of any Loan Party, as Proceeds of
Collateral, enforcement of any right of setoff or otherwise) is declared to be a
fraudulent conveyance or a preference in any respect, set aside or required to
be paid to a debtor in possession, any Notes Secured Party, receiver or similar
Person, then the obligation or part thereof originally intended to be satisfied
shall, for the purposes of this Agreement and the rights and obligations of the
ABL Secured Parties and the Notes Secured Parties with respect to such amounts,
be deemed to be reinstated and outstanding as if such payment had not
occurred.  Notwithstanding the foregoing or any other provision of
this Agreement, if the sum of the ABL Obligations consisting of, without
duplication, (i) the principal amount of loans under the ABL Agreement and the
other ABL Documents, or under any ABL DIP Financing, and (ii) the aggregate face
amount of all outstanding letters of credit issued or deemed issued under, or
otherwise secured under, the ABL Agreement and the other ABL Documents, or under
any ABL DIP Financing (all such ABL Obligations described in clauses (i)
and (ii) above being collectively referred to herein as the “Capped ABL Obligations”),
exceeds the sum of $80,000,000 minus the amount of any
permanent commitment reductions under the ABL Agreement as a result of the
prepayment of such obligations with the net proceeds from any asset dispositions
(for the avoidance of doubt, other than as a result of any replacement,
refunding or refinancing of an ABL Obligation) (the “ABL Cap Amount”),
then the portion of the Capped ABL Obligations exceeding the ABL Cap Amount
(such portion being referred to herein as the “ABL Excess Amount”),
and all interest, premiums, reimbursement obligations and other amounts in
respect of such ABL Excess Amount, shall be secured by the ABL Security
Documents but shall not constitute “ABL Obligations” for all purposes of this
Agreement.


    
      
         


      

      
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    “ABL Obligations Payment
Date” means the first date on which (a) the ABL Obligations (other than
those that constitute Unasserted Contingent Obligations) have been indefeasibly
paid in cash in full (or cash collateralized or defeased in accordance with the
terms of the ABL Documents), (b) all commitments to extend credit under the ABL
Documents have been terminated, (c) there are no outstanding letters of credit
or similar instruments issued under, or Swap Obligations or Banking Services
Obligations secured by, the ABL Documents (other than such as have been cash
collateralized or defeased in accordance with the terms of the ABL Documents),
and (d) so long as the Notes Obligations Payment Date shall not have occurred,
the ABL Representative has delivered a written notice to the Notes
Representative stating that the events described in clauses (a), (b) and (c)
have occurred to the satisfaction of the ABL Secured
Parties.  Notwithstanding the foregoing, if at any time within 90 days
after the ABL Obligations Payment Date has occurred, the Borrower enters into
any refinancing or replacement of any ABL Agreement which refinancing or
replacement is permitted hereby and under the Notes Documents, then such ABL
Obligations Payment Date shall automatically be deemed not to have occurred for
all purposes of this Agreement, and the obligations under such ABL Agreement and
the related ABL Documents shall automatically be treated as ABL 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 collateral agent
under such ABL Documents shall be the ABL Representative for all purposes of
this Agreement.  Upon receipt of a notice within such time period
stating that the Borrower has entered into such new ABL Agreement (which notice
shall include the identity of the new collateral agent, such collateral agent,
the “New ABL Agent”), the Notes
Representative shall promptly enter into such documents and agreements
(including amendments or supplements to this Agreement) at the Loan Parties’
expense as such New ABL Agent may reasonably request in order to provide to the
New ABL Agent the rights contemplated hereby, in each case consistent in all
material respects with the terms of this Agreement.

     

    “ABL Priority
Collateral” means all Collateral consisting of the
following:

     

    (a)           all
Accounts;

     

    (b)           all
Inventory (including As-Extracted Collateral);

     

    (c)           all
Trucks;

     

    (d)           all
Instruments;

     

    (e)           all
Documents;


    
      
         


      

      
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    (f)           all
Chattel Paper;

     

    (g)          all
Deposit Accounts (other than the Asset Sale Proceeds Account) with any bank or
other financial institution (including all cash, cash equivalents, financial
assets, negotiable instruments and other evidence of payment, and other funds on
deposit therein or credited thereto);

     

    (h)          all
Securities Accounts (other than the Asset Sale Proceeds Account) with any
securities intermediary (including any and all Investment Property and all funds
or other property held therein or credited thereto);

     

    (i)           all
Commodity Accounts with any commodities intermediary (including any and all
commodity contracts and all funds and other property held therein or credited
thereto);

     

    (j)           all
Letter of Credit Rights;

     

    (k)          all
General Intangibles (other than Intellectual Property and Capital Stock in
Subsidiaries of Borrower);

     

    (l)           all
As-Extracted Collateral;

     

    (m)         all
accessions to, substitutions for and replacements of the foregoing, together
with all books and records, customer lists, credit files, computer files,
programs, printouts and other computer materials and records related thereto;
and

     

    (n)          to
the extent not otherwise included, all Proceeds (including without limitation,
all insurance proceeds), Supporting Obligations and products of any and all of
the foregoing and all collateral security and guarantees given by any Person
with respect to any of the foregoing;

     

    provided,
however, that, (i) any Collateral, regardless of type, received in exchange for
ABL Priority Collateral pursuant to an Enforcement Action in accordance with the
terms of the ABL Agreement and this Agreement shall be treated as ABL Priority
Collateral under this Agreement, the Notes Security Documents and the ABL
Security Documents; (ii) any Collateral of the type that constitutes ABL
Priority Collateral, if received in exchange for Notes Priority Collateral
pursuant to an Enforcement Action in accordance with the terms of the Indenture
and this Agreement, shall be treated as Notes Priority Collateral under this
Agreement, the Notes Security Documents and the ABL Security Documents; and
(iii) ABL Priority Collateral shall exclude all Notes Priority Collateral
(other than Notes Priority Collateral which is treated as ABL Priority
Collateral as set forth in the proviso (i) above), it being understood and
agreed that the ABL Secured Parties remain entitled to the benefit of their
second priority Lien in any such Collateral.

     

    “ABL Representative”
has the meaning set forth in the introductory paragraph hereof.  In
the case of any Replacement ABL Agreement, the ABL Representative shall be the
Person identified as administrative agent or other representative in such
Agreement.

     

    “ABL Secured Parties”
means the ABL Representative, the ABL Creditors and any other holders of the ABL
Obligations.

     

    “ABL Security
Documents” means the “Collateral Documents” as defined in the ABL
Agreement, and any other documents that are designated under the ABL Agreement
as “ABL Security Documents” for purposes of this Agreement.


    
      
         


      

      
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    “Access Period” means,
with respect to any Real Property or Equipment constituting Notes Priority
Collateral, the period, following the commencement of any Enforcement Action,
which begins on the earlier of (a) the day on which the ABL Representative
provides the Notes Representative with the written notice of its election to
request access to such Real Property or Equipment constituting Notes Priority
Collateral pursuant to Section 3.4(c) and (b)
the day on which the ABL Representative receives written notice from the Notes
Representative that the Notes Representative (or its agent) has obtained
possession or control of such Real Property or Equipment constituting Notes
Priority Collateral or has, through the exercise of remedies or otherwise, sold
or otherwise transferred such Real Property or Equipment constituting Notes
Priority Collateral to any third party purchaser or transferee, and ends on the
earliest of (i) the day which is 120 days after such date
(the “Initial Access
Date”) plus such number of days, if any, after the Initial Access Date
that it is stayed or otherwise prohibited from exercising remedies with respect
to associated ABL Priority Collateral, (ii) the date on which all or
substantially all of the ABL Priority Collateral associated with such Real
Property or Equipment constituting Notes Priority Collateral is sold, collected
or liquidated, (iii) the ABL Obligations Payment Date and (iv) the date on which
the default which resulted in such Enforcement Action has been cured to the
satisfaction of the ABL Representative or waived in writing.

     

    “Additional ABL
Agreement” means any agreement approved for designation as such by the
ABL Representative, the Notes Representative and the Borrower.

     

    “Additional Indenture”
means any agreement approved for designation as such by the ABL Representative,
the Notes Representative and the Borrower.

     

    “Asset Sale Proceeds
Account” means one or more Deposit Accounts or Securities Accounts
together with the cash, cash equivalents, financial assets, negotiable
instruments and other evidence of payment, and other funds on deposit therein or
credited thereto, to the extent consisting solely of Notes Priority
Collateral.

     

    “Banking Services”
means each and any of the following bank services provided to any Loan Party by
any ABL Secured Party (or any of its affiliates):  (a) credit cards
for commercial customers (including, without limitation, “commercial credit
cards” and purchasing cards), (b) stored value cards and (c) treasury management
services (including, without limitation, controlled disbursement, automated
clearinghouse transactions, return items, overdrafts and interstate depository
network services).

     

    “Banking Services Obligations” means,
with respect to any Loan Party, any and all obligations of such Loan Party owed
to any ABL Secured Party (or any of its affiliates), whether absolute or
contingent and howsoever and whensoever created, arising, evidenced or acquired
(including all renewals, extensions and modifications thereof and substitutions
therefor) in connection with Banking Services.

     

    “Bankruptcy Code”
means the United States Bankruptcy Code (11 U.S.C. §101 et seq.), as amended
from time to time.

     

    “Borrower” has the
meaning set forth in the first WHEREAS clause above.

     

    “Business Day” means
any day that is not a Saturday, Sunday or other day on which commercial banks in
New York City are authorized or required by law to remain closed.

     

    “Capital Stock” means
(a) in the case of a corporation, corporate stock, (b) in the case of an
association, any and all shares, interests, participations, rights or other
equivalents (however designated) of corporate stock, (c) in the case of a
partnership or limited liability company, partnership or membership interests
(whether general or limited and however designated, whether voting or
non-voting), and (d) any other interest or participation that confers on a
Person the right to receive a share of the profits and losses of, or
distributions of property of, the issuing Person.


    
      
         


      

      
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    “Capped ABL
Obligations” has the meaning assigned to such term in the definition of
“ABL Obligations”.

     

    “Collateral” means,
collectively, all ABL Collateral and all Notes Collateral.

     

    “Common Collateral”
means all Collateral that constitutes both ABL Collateral and Notes
Collateral.

     

    “Comparable Security Document”
means, in relation to any Senior Collateral subject to any Senior Security
Document, that Junior Security Document that creates a security interest in the
same Senior Collateral, granted by the same Loan Party, as
applicable.

     

    “Copyright Licenses”
means any and all agreements granting any right in, to or under Copyrights
(whether a Loan Party is licensee or licensor thereunder).

     

    “Copyrights” means all
right, title, and interest in and to the following:  (a) all
copyrights, rights and interests in copyrights, works protectable by copyright,
copyright registrations, and copyright applications; (b) all renewals of any of
the foregoing; (c) the right to sue for past, present, and future infringements
of any of the foregoing; and (d) all rights corresponding to any of the
foregoing throughout the world.

     

    “Enforcement Action”
means, with respect to the ABL Obligations or the Notes Obligations, the
exercise of any rights and remedies against, or to realize upon, to any Common
Collateral securing such obligations or the commencement or prosecution of
enforcement of any of the rights and remedies under, as applicable, the ABL
Documents or the Notes Documents, or applicable law, including without
limitation the exercise of any rights of set-off or recoupment, and the exercise
of any rights or remedies of a secured creditor under the Uniform Commercial
Code of any applicable jurisdiction or under the Bankruptcy Code.

     

    “Existing ABL
Agreement” has the meaning set forth in the first WHEREAS clause of this
Agreement.

     

    “Existing Indenture”
has the meaning set forth in the second WHEREAS clause of this
Agreement.

     

    “Indenture” means the
collective reference to (a) the Existing Indenture, (b) any Additional Indenture
and (c) any other credit agreement, loan agreement, note agreement, promissory
note, indenture or other agreement or instrument evidencing or governing the
terms of any indebtedness or other financial accommodation that has been
incurred to extend, replace, refinance or refund in whole or in part the
indebtedness and other obligations outstanding under the Existing Indenture, any
Additional Indenture or any other agreement or instrument referred to in this
clause (c) unless such agreement or instrument expressly provides that it is not
intended to be and is not a Indenture hereunder (a “Replacement Indenture”).  Any
reference to the Indenture hereunder shall be deemed a reference to any
Indenture then extant.

     

    “Insolvency
Proceeding” means any proceeding in respect of bankruptcy, insolvency,
winding up, receivership, dissolution or assignment for the benefit of
creditors, in each of the foregoing events whether under the Bankruptcy Code or
any similar federal, state or foreign bankruptcy, insolvency, reorganization,
receivership or similar law.


    
      
         


      

      
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    “Intellectual
Property” means, collectively, all rights, priorities and privileges
relating to intellectual property, whether arising under United States,
multinational or foreign laws or otherwise, including Copyrights, Copyright
Licenses, Patents, Patent Licenses, Trademarks, Trademark Licenses, trade
secrets and Internet domain names, and all rights to sue at law or in equity for
any infringement or other impairment thereof, including the right to receive all
proceeds and damages therefrom.

     

    “Junior Collateral”
shall mean with respect to any Junior Secured Party, any Collateral on which it
has a Junior Lien.

     

    “Junior Documents”
shall mean, collectively, with respect to any Junior Obligations, any provision
pertaining to such Junior Obligation in any Loan Document or any other document,
instrument or certificate evidencing or delivered in connection with such Junior
Obligation.

     

    “Junior
Liens” shall mean (a) with respect to any ABL Priority Collateral,
all Liens securing the Notes Obligations, and (b) with respect to any Notes
Priority Collateral, all Liens securing the ABL Obligations.

     

    “Junior Obligations”
shall mean (a) with respect to any ABL Priority Collateral, all Notes
Obligations and (b) with respect to any Notes Priority Collateral, all ABL
Obligations.

     

    “Junior
Representative” shall mean (a) with respect to any ABL Obligations or any
ABL Priority Collateral, the Notes Representative and (b) with respect to any
Notes Obligations or any Notes Priority Collateral, the ABL
Representative.

     

    “Junior Secured
Parties” shall mean (a) with respect to the ABL Priority Collateral, all
Notes Secured Parties and (b) with respect to the Notes Priority Collateral, all
ABL Secured Parties.

     

    “Junior Security
Documents” shall mean with respect to any Junior Secured Party, the
Security Documents that secure the Junior Obligations.

     

    “Lien” means, with
respect to any asset, (a) any mortgage, deed of trust, deed to secure debt,
lien, pledge, hypothecation, assignment, assignation, debenture, encumbrance,
charge or security interest in, on or of such asset, (b) the interest of a
vendor or a lessor under any conditional sale agreement, capital lease or title
retention agreement (or any financing lease having substantially the same
economic effect as any of the foregoing) relating to such asset and (c) in the
case of securities, any purchase option, call or similar right of a third party
with respect to such securities.

     

    “Lien Priority” means
with respect to any Lien of the ABL Representative or Notes Representative in
the Common Collateral, the order of priority of such Lien specified in Section
2.1.

     

    “Loan Documents” shall
mean, collectively, the ABL Documents and the Notes Documents.

     

    “Loan Party” means
Borrower and each direct or indirect affiliate or shareholder (or equivalent) of
Borrower or any of its affiliates that is now or hereafter becomes a party to
any ABL Document.  All references in this Agreement to any Loan Party
shall include such Loan Party as a debtor-in-possession and any receiver or
trustee for such Loan Party in any Insolvency Proceeding.


    
      
         


      

      
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    “Material Real
Property” means, with respect to a Loan Party, each parcel of fee owned
Real Property (or any interest in owned Real Property) with a net book value
equal to or greater than $700,000.

     

    “Notes Collateral”
means all assets, whether now owned or hereafter acquired by any Loan Party, in
which a Lien is granted or purported to be granted to any Notes Secured Party as
security for any Notes Obligation.

     

    “Notes Creditors”
means the “Holders” and the other “Noteholder Secured Parties”, each as defined
in the Indenture.

     

    “Notes DIP Financing”
has the meaning set forth in Section 5.2(b).

     

    “Notes Documents”
means each Note, each Indenture, each Notes Security Document, each Notes
Guarantee and each other “Note Document” as defined in the
Indenture.

     

    “Notes Guarantee”
means any guarantee by any Loan Party of any or all of the Notes
Obligations.

     

    “Notes Lien” means any Lien created
by the Notes Security Documents.

     

    “Notes Obligations”
means (a) all principal of and interest (including without limitation any
Post-Petition Interest) and premium (if any) on all indebtedness under the Notes
and the Indenture or any Notes DIP Financing by the Notes Creditors, and
(b) all guarantee obligations, indemnities, fees, expenses and other amounts
payable from time to time pursuant to the Notes Documents, in each case whether
or not allowed or allowable in an Insolvency Proceeding.  To the
extent any payment with respect to any Notes Obligation (whether by or on behalf
of any Loan Party, as Proceeds of security, enforcement of any right of setoff
or otherwise) is declared to be a fraudulent conveyance or a preference in any
respect, set aside or required to be paid to a debtor in possession, any ABL
Secured Party, receiver or similar Person, then the obligation or part thereof
originally intended to be satisfied shall, for the purposes of this Agreement
and the rights and obligations of the ABL Secured Parties and the Notes Secured
Parties, be deemed to be reinstated and outstanding as if such payment had not
occurred.

     

    “Notes
Obligations
Payment Date” means the first date on which (a) the Notes Obligations
(other than those that constitute Unasserted Contingent Obligations) have been
indefeasibly paid in cash in full, (b) all commitments to extend credit under
the Notes Documents have been terminated, and (c) so long as the ABL Obligations
Payment Date shall not have occurred, the Notes Representative has delivered a
written notice to the ABL Representative stating that the events described in
clauses (a) and (b) have occurred to the satisfaction of the Notes Secured
Parties.  Notwithstanding the foregoing, if at any time within 90 days
after the Notes Obligations Payment Date has occurred, the Borrower enters into
any refinancing or replacement of any Indenture which refinancing or replacement
is permitted hereby and under the ABL Documents, then such Notes Obligations
Payment Date shall automatically be deemed not to have occurred for all purposes
of this Agreement, and the obligations under such Indenture and the related
Notes Documents shall automatically be treated as Notes 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 collateral agent under
such Notes Documents shall be the Notes Representative for all purposes of this
Agreement.  Upon receipt of a notice within such time period stating
that the Borrower has entered into a new Indenture (which notice shall include
the identity of the new collateral agent, such collateral agent, the “New Notes Agent”),
the ABL Representative shall promptly enter into such documents and agreements
(including amendments or supplements to this Agreement) at the Loan Parties’
expense as such New Notes Agent may reasonably request in order to provide to
the New Notes Agent the rights contemplated hereby, in each case consistent in
all material respects with the terms of this Agreement.


    
      
         


      

      
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    “Notes Priority
Collateral” means all Collateral consisting of the following: (a) all
Equipment (other than Trucks), (b) all Capital Stock in any Subsidiary of
Borrower, (c) all Intellectual Property, (d) all Material Real Property, (e) the
Asset Sale Proceeds Account, (f) all other Notes Collateral that is not ABL
Priority Collateral, (g) all accessions to, substitutions for and replacements
of the foregoing, together with all books and records, computer files, programs,
printouts and other computer materials and records related thereto (other than
to the extent constituting ABL Priority Collateral), and (h) to the extent not
otherwise included, all Proceeds (including without limitation, all insurance
proceeds), Supporting Obligations and products of any and all of the foregoing
and all collateral security and guarantees given by any Person with respect to
any of the foregoing; provided, however, that (i) any Collateral, regardless of
type, received in exchange for Notes Priority Collateral pursuant to an
Enforcement Action in accordance with the terms of the Indenture and this
Agreement shall be treated as Notes Priority Collateral under this Agreement,
the Notes Security Documents and the ABL Security Documents; (ii) any Collateral
of the type that constitutes Notes Priority Collateral, if received in exchange
for ABL Priority Collateral pursuant to an Enforcement Action in accordance with
the terms of the ABL Agreement and this Agreement, shall be treated as ABL
Priority Collateral under this Agreement, the Notes Security Documents and the
ABL Security Documents; and (iii) Notes Priority Collateral shall exclude all
ABL Priority Collateral (other than ABL Priority Collateral which is treated as
Notes Priority Collateral as set forth in the proviso (i) above), it being
understood and agreed that the Notes Secured Parties remain entitled to the
benefit of their second priority Lien in any such Collateral.

     

    “Notes Representative”
has the meaning set forth in the introductory paragraph hereof.  In
the case of any Replacement Indenture, the Notes Representative shall be the
Person identified as trustee or other representative in such
Agreement.

     

    “Notes Secured
Parties” means the Notes Representative, the Notes Creditors and any
other holders of the Notes Obligations.

     

    “Notes Security
Documents” means the “Security Documents” as defined in the Indenture and
any documents that are designated under the Indenture as “Notes Security
Documents” for purposes of this Agreement.

     

    “Patent License” means
all agreements granting any right in, to, or under Patents (whether any Loan
Party is licensee or licensor thereunder).

     

    “Patents” means all
right, title, and interest in and to:  (a) any and all patents and
patent applications; (b) all inventions and improvements described and claimed
therein; (c) all reissues, divisions, continuations, extensions, and
continuations-in-part thereof; (d) all rights to sue for past, present, and
future infringements thereof; and (e) all rights corresponding to any of the
foregoing throughout the world.

     

    “Person” means any
person, individual, sole proprietorship, partnership, joint venture,
corporation, limited liability company, unincorporated organization,
association, institution, entity, party, including any government and any
political subdivision, agency or instrumentality thereof.

     

    “Post-Petition
Interest” means any interest or entitlement to fees or expenses or other
charges that accrues after the commencement of any Insolvency Proceeding (or
would accrue but for the commencement of an Insolvency Proceeding), whether or
not allowed or allowable in any such Insolvency Proceeding.

     

    “Priority Collateral”
means the ABL Priority Collateral or the Notes Priority Collateral, as
applicable.


    
      
         


      

      
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    “Proceeds” means (a)
all “proceeds,” as defined in Article 9 of the Uniform Commercial Code, with
respect to the Common Collateral, and (b) whatever is recoverable or recovered
when any Common Collateral is sold, exchanged, collected, or disposed of,
whether voluntarily or involuntarily.

     

    “Real Property” means
any right, title or interest in and to real property, including any fee
interest, leasehold interest, easement, or license and any other right to use or
occupy real property, including any right arising by contract.

     

    “Replacement ABL
Agreement” has the meaning set forth in the definition of “ABL
Agreement.”

     

    “Replacement Indenture” has the
meaning set forth in the definition of “Indenture.”

     

    “Secured Obligations” shall
mean the ABL Obligations and the Notes Obligations.

     

    “Secured Parties”
means the ABL Secured Parties and the Notes Secured Parties.

     

    “Security Documents” means,
collectively, the ABL Security Documents and the Notes Security
Documents.

     

    “Senior Collateral”
shall mean with respect to any Senior Secured Party, any Collateral on which it
has a Senior Lien.

     

    “Senior Documents”
shall mean, collectively, with respect to any Senior Obligation, any provision
pertaining to such Senior Obligation in any Loan Document or any other document,
instrument or certificate evidencing or delivered in connection with such Senior
Obligation.

     

    “Senior Liens” shall
mean (a) with respect to the ABL Priority Collateral, all Liens securing the ABL
Obligations and (b) with respect to the Notes Priority Collateral, all
Liens securing the Notes Obligations.

     

    “Senior Obligations” shall
mean (a) with respect to any ABL Priority Collateral, all ABL Obligations and
(b) with respect to any Notes Priority Collateral, all Notes
Obligations.

     

    “Senior Obligations Payment Date” shall mean
(a) with respect to ABL Obligations, the ABL Obligations Payment Date and (b)
with respect to any Notes Obligations, the Notes Obligations Payment
Date.

     

    “Senior Representative” shall
mean (a) with respect to any ABL Priority Collateral, the ABL Representative and
(b) with respect to any Notes Priority Collateral, the Notes
Representative.

     

    “Senior Secured
Parties” shall mean (a) with respect to the ABL Priority Collateral, all
ABL Secured Parties and (b) with respect to the Notes Priority Collateral, all
Notes Secured Parties.

     

    “Senior Security
Documents” shall mean with respect to any Senior Secured Party, the
Security Documents that secure the Senior Obligations owing to such Senior
Secured Party.


    
      
         


      

      
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    “Subsidiary” means,
with respect to any Person (the “parent”) at any date, any corporation, limited
liability company, partnership, association or other entity the accounts of
which would be consolidated with those of the parent in the parent’s
consolidated financial statements if such financial statements were prepared in
accordance with GAAP as of such date, as well as any other corporation, limited
liability company, partnership, association or other entity (a) of which
securities or other ownership interests representing more than 50% of the equity
or more than 50% of the ordinary voting power or, in the case of a partnership,
more than 50% of the general partnership interests are, as of such date, owned,
controlled or held, or (b) that is, as of such date, otherwise controlled, by
the parent or one or more subsidiaries of the parent or by the parent and one or
more subsidiaries of the parent; provided, that Superior Materials Holdings LLC
and its direct and indirect subsidiaries shall not be a Subsidiary of any Loan
Party.

     

    “Swap Obligations” means,
with respect to any Loan Party, any and all obligations of such Loan Party,
whether absolute or contingent and howsoever and whensoever created, arising,
evidenced or acquired (including all renewals, extensions and modifications
thereof and substitutions therefor), owed to any ABL Creditor (or any of its
affiliates) under (a) any and all agreements with respect to any swap, forward,
future or derivative transaction or option or similar agreement involving, or
settled by reference to, one or more rates, currencies, commodities, equity or
debt instruments or securities, or economic, financial or pricing indices or
measures of economic, financial or pricing risk or value or any similar
transaction or any combination of these transactions, and (b) any and all
cancellations, buy backs, reversals, terminations or assignments of the any of
the foregoing.

     

    “Trademark Licenses”
means any and all agreements granting any right in or to Trademarks (whether a
Loan Party is licensee or licensor thereunder).

     

    “Trademarks” means all
right, title, and interest in and to the following:  (a) all
trademarks (including service marks), trade names, trade dress, and trade styles
and the registrations and applications for registration thereof and the goodwill
of the business symbolized by the foregoing; (b) all renewals of the foregoing;
(c) all rights to sue for past, present, and future infringements of the
foregoing, including the right to settle suits involving claims and demands for
royalties owing; and (d) all rights corresponding to any of the foregoing
throughout the world.

     

    “Trucks” means all
ready-mix concrete trucks and the mixing drums affixed thereto owned by any Loan
Party.

     

    “Unasserted Contingent
Obligations” shall mean, at any time, ABL Obligations or Notes
Obligations, as applicable, for taxes, costs, indemnifications, reimbursements,
damages and other liabilities (excluding (a) the principal of, and interest and
premium (if any) on, and fees and expenses relating to, any ABL Obligation or
Notes Obligation, as applicable, and (b) with respect to ABL Obligations
contingent reimbursement obligations in respect of amounts that may be drawn
under outstanding letters of credit) in respect of which no assertion of
liability (whether oral or written) and no claim or demand for payment (whether
oral or written) has been made (and, in the case of ABL Obligations or Notes
Obligations, as applicable, for indemnification, no notice for indemnification
has been issued by the indemnitee) at such time.

     

    “Uniform Commercial
Code” shall mean the Uniform Commercial Code as in effect from time to
time in the applicable jurisdiction.


    
      
         


      

      
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    1.3         Rules of
Construction.  The definitions of terms herein shall apply
equally to the singular and plural forms of the terms defined.  Whenever
the context may require, any pronoun shall include the corresponding masculine,
feminine and neuter forms.  The words “include”, “includes” and “including”
shall be deemed to be followed by the phrase “without limitation”.  The
word “will” shall be construed to have the same meaning and effect as the word
“shall”.  Unless the context requires otherwise (a) any definition of
or reference to any agreement, instrument or other document herein shall be
construed as referring to such agreement, instrument or other document as from
time to time amended, amended and restated, restated, supplemented, modified,
refinanced, replaced, renewed or otherwise extended (subject to any restrictions
on such amendments, amendments and restatements, restatements, supplements,
modifications, refinancings, replacements, renewals and extensions set forth
herein), (b) any reference herein to any Person shall be construed to include
such Person’s successors and permitted assigns, (c) the words “herein”, “hereof”
and “hereunder”, and words of similar import, shall be construed to refer to
this Agreement in its entirety and not to any particular provision hereof, (d)
all references herein to Articles, Sections, Exhibits and Schedules shall be
construed to refer to Articles and Sections of, and Exhibits and Schedules to,
this Agreement 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 Priority.

     

    2.1         Lien
Subordination.  Notwithstanding the date, manner or order of
grant, attachment or perfection of any Junior Lien in respect of any Collateral
or of any Senior Lien in respect of any Collateral and notwithstanding any
provision of the UCC, any applicable law, any Security Document, any alleged or
actual defect or deficiency in any of the foregoing or any other circumstance
whatsoever, the Junior Representative, on behalf of each Junior Secured Party,
in respect of such Collateral hereby agrees that:

     

    (a)           any
Senior Lien in respect of such Collateral, regardless of how acquired, whether
by grant, statute, operation of law, subrogation or otherwise, shall be and
shall remain senior in all respects and prior to any Junior Lien in respect of
such Collateral (whether or not such Senior Lien is subordinated to any Lien
securing any other obligation); and

     

    (b)           any
Junior Lien in respect of such Collateral, regardless of how acquired, whether
by grant, statute, operation of law, subrogation or otherwise, shall be junior
and subordinate in all respects to any Senior Lien in respect of such
Collateral;

     

    provided,
that notwithstanding anything to the contrary contained in this Agreement, any
ABL Liens on any ABL Priority Collateral, insofar as such ABL Liens secure any
ABL Excess Amount, shall be junior and subordinate in all respects to all Notes
Liens on any ABL Priority Collateral.

     

    2.2         Prohibition on Contesting
Liens.  In respect of any Collateral, the Junior
Representative, on behalf of each Junior Secured Party, in respect of such
Collateral agrees that it shall not, and hereby waives any right
to:

     

    (a)           contest,
or support any other Person in contesting, in any proceeding (including any
Insolvency Proceeding), the priority, perfection, validity or enforceability of
any Senior Lien on such Collateral; or

     

    (b)           demand,
request, plead or otherwise assert or claim the benefit of any marshalling,
appraisal, valuation or similar right which it may have in respect of such
Collateral or the Senior Liens on such Collateral, except to the extent that
such rights are expressly granted in this Agreement.


    
      
         


      

      
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    2.3         Nature of
Obligations.  The Notes Representative on behalf of itself and
the other Notes Secured Parties acknowledges that a portion of the ABL
Obligations represents debt that is revolving in nature and that the amount
thereof that may be outstanding at any time or from time to time may be
increased or reduced and subsequently reborrowed, and that the terms of the ABL
Obligations may be modified, extended or amended from time to time, and that the
aggregate amount of the ABL Obligations may be increased, extended, renewed,
replaced or refinanced, in each event, without notice to or consent by the Notes
Secured Parties and without affecting the provisions hereof.  The ABL
Representative on behalf of itself and the other ABL Secured Parties
acknowledges that Notes Obligations may be extended, renewed, replaced or
refinanced without notice to or consent by the ABL Secured Parties and without
affecting the provisions hereof.  The Lien Priorities provided in
Section 2.1
shall not be altered or otherwise affected by any such amendment, modification,
supplement, extension, repayment, reborrowing, increase, replacement, renewal,
restatement or refinancing of either the ABL Obligations or the Notes
Obligations, or any portion thereof.

     

    2.4         No New
Liens.  (a) Until the ABL Obligations Payment Date, no Notes
Secured Party shall acquire or hold any Lien on any assets of any Loan Party
securing any Notes Obligation which assets are not also subject to the Lien of
the ABL Representative under the ABL Documents, subject to the Lien Priority set
forth herein.  If any Notes Secured Party shall (nonetheless and in
breach hereof) acquire or hold any Lien on any assets of any Loan Party securing
any Notes Obligation which assets are not also subject to the Lien of the ABL
Representative under the ABL Documents, subject to the Lien Priority set forth
herein, then the Notes Representative (or the relevant Notes Secured Party)
shall, without the need for any further consent of any other Notes Secured Party
and notwithstanding anything to the contrary in any other Notes Document be
deemed to also hold and have held such lien for the benefit of the ABL
Representative as security for the ABL Obligations (subject to the Lien Priority
and other terms hereof) and shall promptly notify the ABL Representative in
writing of the existence of such Lien.

     

    (b)           Until
the Notes Obligations Payment Date, no ABL Secured Party shall acquire or hold
any Lien on any assets of any Loan Party securing any ABL Obligation which
assets are not also subject to the Lien of the Notes Representative under the
Notes Documents, subject to the Lien Priority set forth herein.  If
any ABL Secured Party shall (nonetheless and in breach hereof) acquire or hold
any Lien on any assets of any Loan Party securing any ABL Obligation which
assets are not also subject to the Lien of the Notes Representative under the
Notes Documents, subject to the Lien Priority set forth herein, then the ABL
Representative (or the relevant ABL Secured Party) shall, without the need for
any further consent of any other ABL Secured Party and notwithstanding anything
to the contrary in any other ABL Document be deemed to also hold and have held
such lien for the benefit of the Notes Representative as security for the Notes
Obligations (subject to the Lien Priority and other terms hereof) and shall
promptly notify the Notes Representative in writing of the existence of such
Lien.

     

    2.5         Separate Grants of Security
and Separate Classification.  Each Secured Party acknowledges
and agrees that (a) the grants of Liens pursuant to the ABL Security Documents
and the Notes Security Documents constitute two separate and distinct grants of
Liens and (b) because of, among other things, their differing rights in the
Common Collateral, the Notes Obligations are fundamentally different from the
ABL Obligations and should be separately classified in any plan of
reorganization proposed or adopted in an Insolvency 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 ABL Secured Parties and
the Notes Secured Parties in respect of the Common Collateral constitute claims
in the same class (rather than separate classes of senior and junior secured
claims), then the ABL Secured Parties and the Notes Secured Parties hereby
acknowledge and agree that all distributions shall be made as if there were
separate classes of ABL Obligation claims and Notes Obligation claims against
the Loan Parties (with the effect being that, to the extent that the aggregate
value of the ABL Priority Collateral or Notes Priority Collateral is sufficient
(for this purpose ignoring all claims held by the other Secured Parties), the
ABL Secured Parties or the Notes Secured Parties, respectively, 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 that is available from each pool of Priority
Collateral for each of the ABL Secured Parties and the Notes Secured Parties,
respectively, before any distribution is made in respect of the claims held by
the other Secured Parties, with the other Secured Parties hereby acknowledging
and agreeing to turn over to the respective other Secured Parties 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 aggregate recoveries.


    
      
         


      

      
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    2.6         Agreements Regarding Actions
to Perfect Liens.  (a) The ABL Representative agrees on behalf
of itself and the other ABL Secured Parties that all mortgages, deeds of trust,
deeds and similar instruments (collectively, “mortgages”) now or
thereafter filed against Real Property in favor of or for the benefit of the ABL
Representative shall contain the following notation (or such other notation
reasonably acceptable to the Notes Representative):  “The lien created
by this mortgage on the real property described herein is junior and subordinate
to the lien on such real property created by any mortgage, deed of trust or
similar instrument now or hereafter granted to [INSERT NAME OF THEN APPLICABLE
NOTES REPRESENTATIVE], as Notes Representative, in accordance with the
provisions of the Intercreditor Agreement dated as of August 31 2010, as
amended, restated, amended and restated, modified, supplemented, renewed or
replaced from time to time.”

     

    (b)           Each
of the ABL Representative and the Notes Representative hereby acknowledges that,
to the extent that it holds, or a third party holds on its behalf, physical
possession of or “control” (as defined in the Uniform Commercial Code) over, or
is otherwise noted as a lienholder on any certificate of title constituting,
Common Collateral pursuant to the ABL Security Documents or the Notes Security
Documents, as applicable, the ABL Representative and the Notes Representative,
as applicable, each agree to hold or control such Common Collateral as bailee
and as non-fiduciary agent for the Notes Representative or the ABL
Representative, as applicable (such bailment and agency being intended, among
other things, to satisfy the requirements of Sections 9-313(c), 9-104, 9-105,
9-106, and 9-107 of the UCC and applicable certificate of title laws), solely
for the purpose of perfecting the security interest (including any
second-priority security interest) granted under the Notes Documents or the ABL
Documents, as applicable, subject to the terms and conditions of this Section 2.6 (either
the ABL Representative or the Notes Representative in such capacity, the “Control
Representative”).  Nothing in this Section 2.6
shall be construed to impose any duty on the ABL Representative or the Notes
Representative (or any third party acting on either such Person’s behalf) or
create any fiduciary relationship with respect to such Common Collateral or
provide the Notes Representative, any other Notes Secured Party, the ABL
Representative or any other ABL Secured Party, as applicable, with any rights
with respect to such Common Collateral beyond those specified in this Agreement,
the ABL Security Documents and the Notes Security Documents, as applicable,
provided that
subsequent to the occurrence of the ABL Obligations Payment Date (so long as the
Notes Obligations Payment Date shall not have occurred), the ABL Representative
shall (i) deliver to the Notes Representative, at the Loan Parties’ sole cost
and expense, the Common Collateral in its possession or control together with
any necessary endorsements to the extent required by the Notes Documents or (ii)
direct and deliver such Common Collateral as a court of competent jurisdiction
otherwise directs; provided, further, that
subsequent to the occurrence of the Notes Obligations Payment Date (so long as
the ABL Obligations Payment Date shall not have occurred), the Notes
Representative shall (A) deliver to the ABL Representative, at the Loan Parties’
sole cost and expense, the Common Collateral in its possession or control
together with any necessary endorsements to the extent required by the ABL
Documents or (B) direct and deliver such Common Collateral as a court of
competent jurisdiction otherwise directs.  The provisions of this
Agreement are intended solely to govern the respective Lien priorities as
between the ABL Secured Parties and the Notes Secured Parties and shall not
impose on the ABL Secured Parties or the Notes Secured Parties any obligations
in respect of the disposition of any Common Collateral (or any proceeds thereof)
that would conflict with prior perfected Liens or any claims thereon in favor of
any other Person that is not a Secured Party.


    
      
         


      

      
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    (c)           The
ABL Representative hereby agrees that after the ABL Obligations Payment Date and
upon the written request of the Notes Representative, to the extent that the
applicable control agreement is in full force and effect and has not been
terminated, the ABL Representative shall continue to act as the Control
Representative for the Notes Representative (solely for the purpose of
perfecting the security interest granted under the Notes Documents and at the
expense of Loan Parties) with respect to the deposit account or securities
account that is the subject of such control agreement, until the earlier to
occur of (i) 30 days after the ABL Obligations Payment Date and (ii) the date
when a control agreement is executed in favor of the Notes Representative with
respect to such deposit account or securities account. The Notes
Representative hereby agrees that after the Notes Obligations Payment Date and
upon the written request of the ABL Representative, to the extent that the
applicable control agreement is in full force and effect and has not been
terminated, the Notes Representative shall continue to act as the Control
Representative for the ABL Representative (solely for the purpose of
perfecting the security interest granted under the ABL Documents and at the
expense of Loan Parties) with respect to the deposit account or securities
account that is the subject of such control agreement, until the earlier to
occur of (1) 30 days after the Notes Obligations Payment Date and (2) the date
when a control agreement is executed in favor of the ABL Representative with
respect to such deposit account or securities account.

     

    (d)           Until
the Notes Obligations Payment Date, the ABL Representative agrees that to the
extent it is in possession of any Common Collateral constituting Notes Priority
Collateral, promptly upon the request of the Notes Representative at any time
prior to the Notes Obligations Payment Date, the ABL Representative shall
deliver to the Notes Representative any such Notes Priority Collateral held by
it, and shall use commercially reasonable efforts to cause each ABL Creditor
known to it to be holding such Notes Priority Collateral to deliver the same to
the Notes Representative, together with any necessary endorsements without
warranty or representation of any kind (or otherwise allow the Notes
Representative to obtain control of such Notes Priority
Collateral).

     

    (e)           Until
the ABL Obligations Payment Date, the Notes Representative agrees that to the
extent it is in possession of any Common Collateral constituting ABL
Priority Collateral, promptly upon the request of the ABL Representative at any
time prior to the ABL Obligations Payment Date, the Notes Representative shall
deliver to the ABL Representative any such ABL Priority Collateral held by it,
and shall use commercially reasonable efforts to cause each Notes Creditor known
to it to be holding such ABL Priority Collateral to deliver the same to the ABL
Representative, together with any necessary endorsements without warranty or
representation of any kind (or otherwise allow the ABL Representative to obtain
control of such ABL Priority Collateral).

     

    (f)           The
ABL Representative shall have no obligation whatsoever to the Notes
Representative or any Notes Creditor to ensure that the Common Collateral is
genuine or owned by any Loan Party or to preserve rights or benefits of any
person except as expressly set forth in this Section
2.6.  The duties or responsibilities of the ABL Representative
under this Section
2.6 shall be limited solely to holding or controlling the Common
Collateral as bailee and non-fiduciary agent in accordance with this Section 2.6 and
delivering the Common Collateral upon the ABL Obligations Payment Date as
provided in this Section 2.6. The
Notes Representative shall have no obligation whatsoever to the ABL
Representative or any ABL Creditor to ensure that the Common Collateral is
genuine or owned by any Loan Party or to preserve rights or benefits of any
person except as expressly set forth in this Section
2.6.  The duties or responsibilities of the Notes
Representative under this Section 2.6 shall be
limited solely to holding or controlling the Common Collateral as bailee and
non-fiduciary agent in accordance with this Section 2.6 and
delivering the Common Collateral upon the Notes Obligations Payment Date as
provided in this Section 2.6.

     

    
      
        
        

      

      
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    SECTION
3.       Enforcement Rights.


    3.1         Exclusive
Enforcement.  Until the Senior Obligations Payment Date has
occurred, whether or not an Insolvency Proceeding has been commenced by or
against any Loan Party, the Senior Secured Parties shall have the exclusive
right to take and continue any Enforcement Action (including the right to credit
bid their debt) with respect to the Senior Collateral, without any consultation
with or consent of any Junior Secured Party, but subject to the proviso set
forth in Section
5.1.  Upon the occurrence and during the continuance of a
default or an event of default under the Senior Documents, the Senior
Representative and the other Senior Secured Parties may take and continue any
Enforcement Action with respect to the Senior Obligations and the Senior
Collateral in such order and manner as they may determine in their sole
discretion in accordance with the terms and conditions of the Senior
Documents.  Notwithstanding the foregoing, any Junior Representative
may, subject to Section 3.2, take all
such actions as it shall deem necessary to (i) perfect or continue the
perfection of its Junior Liens or (ii) to create, preserve or protect (but not
enforce) the Junior Liens on any Collateral.

     

    3.2         Standstill and
Waivers.  Each Junior Representative, on behalf of itself and
the other Junior Secured Parties, agrees that, until the Senior Obligations
Payment Date has occurred, whether or not an Insolvency Proceeding has been
commenced by or against any Loan Party, but subject to the proviso set forth in
Section
5.1:

     

    (a)           they
will not take or cause to be taken any action, the purpose or effect of which is
to make any Lien on any Senior Collateral that secures any Junior Obligation
pari passu with or senior to, or to give any Junior Secured Party any preference
or priority relative to, the Liens on the Senior Collateral securing the Senior
Obligations;

     

    (b)           they
will not, directly or indirectly, contest, oppose, object to, interfere with,
hinder or delay, in any manner, whether by judicial proceedings (including
without limitation the filing of an Insolvency Proceeding) or otherwise, any
foreclosure, sale, lease, exchange, transfer or other disposition of the Senior
Collateral by any Senior Secured Party or any other Enforcement Action taken (or
any forbearance from taking any Enforcement Action) in respect of the Senior
Collateral by or on behalf of any Senior Secured Party;

     

    (c)           they
have no right to (x) direct either the Senior Representative or any other Senior
Secured Party to exercise any right, remedy or power with respect to the Senior
Collateral or pursuant to the Senior Security Documents in respect of the Senior
Collateral or (y) consent or object to the exercise by the Senior Representative
or any other Senior Secured Party of any right, remedy or power with respect to
the Senior Collateral or pursuant to the Senior Security Documents with respect
to the Senior Collateral or to the timing or manner in which any such right is
exercised or not exercised (or, to the extent they may have any such right
described in this clause (c), whether as a junior lien creditor in respect of
the Senior Collateral or otherwise, they hereby irrevocably waive such
right);

     

    (d)           they
will not institute any suit or other proceeding or assert in any suit,
Insolvency Proceeding or other proceeding any claim against any Senior Secured
Party seeking damages from or other relief by way of specific performance,
instructions or otherwise, with respect to, and no Senior Secured Party shall be
liable for, any action taken or omitted to be taken by any Senior Secured Party
with respect to the Senior Collateral or pursuant to the Senior Documents in
respect of the Senior Collateral;

     

    (e)           they
will not commence judicial or nonjudicial foreclosure proceedings with respect
to, seek to have a trustee, receiver, liquidator or similar official appointed
for or over, attempt any action to take possession of any Senior Collateral,
exercise any right, remedy or power with respect to, or otherwise take any
action to enforce their interest in or realize upon, the Senior Collateral;
and

     

    (f)           they
will not seek, and hereby waive any right, to have the Senior Collateral or any
part thereof marshaled upon any foreclosure or other disposition of the Senior
Collateral.


    
      
         


      

      
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    3.3         Judgment
Creditors.  In the event that any Notes Secured Party becomes a
judgment lien creditor in respect of Common Collateral as a result of its
enforcement of its rights as an unsecured creditor, such judgment lien shall be
subject to the terms of this Agreement for all purposes (including in relation
to the ABL Liens and the ABL Obligations) to the same extent as all other Liens
securing the Notes Obligations are subject to the terms of this
Agreement.  In the event that any ABL Secured Party becomes a judgment
lien creditor in respect of Common Collateral as a result of its enforcement of
its rights as an unsecured creditor, such judgment lien shall be subject to the
terms of this Agreement for all purposes (including in relation to the Notes
Liens and the Notes Obligations) to the same extent as all other Liens securing
the ABL Obligations are subject to the terms of this Agreement.

     

    3.4         Cooperation; Sharing of
Information and Access.  (a) The Notes Representative, on
behalf of itself and the other Notes Secured Parties, agrees that each of them
shall take such actions as the ABL Representative shall request in connection
with the exercise by the ABL Secured Parties of their rights set forth herein in
respect of the ABL Priority Collateral.  The ABL Representative, on
behalf of itself and the other ABL Secured Parties, agrees that each of them
shall take such actions as the Notes Representative shall request in connection
with the exercise by the Notes Secured Parties of their rights set forth herein
in respect of the Notes Priority Collateral.

     

    (b)           In
the event that the ABL Representative shall, in the exercise of its rights under
the ABL Security Documents or otherwise, receive possession or control of any
books and Records of any Loan Party which contain information identifying or
pertaining to the Notes Priority Collateral, the ABL Representative shall
promptly notify the Notes Representative of such fact and, upon request from the
Notes Representative and as promptly as practicable thereafter, either make
available to the Notes Representative such books and Records for inspection and
duplication or provide to the Notes Representative copies thereof.  In
the event that the Notes Representative shall, in the exercise of its rights
under the Notes Security Documents or otherwise, receive possession or control
of any books and Records of any Loan Party which contain information identifying
or pertaining to any of the ABL Priority Collateral, the Notes Representative
shall promptly notify the ABL Representative of such fact and, upon request from
the ABL Representative and as promptly as practicable thereafter, either make
available to the ABL Representative such books and Records for inspection and
duplication or provide the ABL Representative copies thereof.  The
Notes Representative hereby irrevocably grants the ABL Representative an
non-exclusive worldwide license or right to use, to the maximum extent permitted
by applicable law and to the extent of the Notes Representative’s interest
therein, exercisable without payment of royalty or other compensation, to use
any of the Intellectual Property incorporated in or relating to the ABL Priority
Collateral and now or hereafter owned by, licensed to, or otherwise used by the
Loan Parties in order for ABL Representative and the other ABL Secured Parties
to purchase, use, market, repossess, possess, store, assemble, manufacture,
process, sell, transfer, distribute or otherwise dispose of any asset included
in the ABL Priority Collateral in connection with the liquidation, disposition
or realization upon the ABL Priority Collateral in accordance with the terms and
conditions of the ABL Security Documents and the other ABL
Documents.  Nothing contained in this Section 3.4 shall
restrict the rights of the Notes Representative from selling, assigning or
otherwise transferring any of the Loan Parties’ Intellectual Property; provided,
that the Notes Representative agrees that any sale, transfer or other
disposition of any of the Loan Parties’ Intellectual Property (whether by
foreclosure or otherwise) will be subject to the ABL Representative’s rights as
set forth in this Section
3.4.  The ABL Representative acknowledges that with respect to
the Intellectual Property subject to the foregoing license, the Notes
Representative or third party purchaser, as owner of such Intellectual Property,
shall have such rights of quality control (“quality” being the relevant Loan
Party’s standards in effect immediately prior to ABL Representative’s use of the
relevant Intellectual Property) and inspection to the extent reasonably
necessary pursuant to applicable law to maintain the validity and enforceability
of such Intellectual Property, provided, that if the Notes Representative elects
to exercise such quality control and/or inspection rights it may retain
professionals to do so at the expense of the Loan Parties.


    
      
         


      

      
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    (c)           If
the Notes Representative, or any agent or representative of the Notes
Representative, or any receiver, shall, after the commencement of any
Enforcement Action, obtain possession or physical control of any of the Notes
Priority Collateral (or sells or otherwise transfers any of the Notes Priority
Collateral to a third party purchaser or transferee without first obtaining
possession or physical control), the Notes Representative shall promptly notify
the ABL Representative in writing of that fact, and the ABL Representative
shall, within ten Business Days thereafter, notify the Notes Representative in
writing as to whether the ABL Representative desires to exercise access rights
under this Agreement.  In addition, if the ABL Representative, or any
agent or representative of the ABL Representative, or any receiver, shall obtain
possession or physical control of any of the Notes Priority Collateral in
connection with an Enforcement Action, then the ABL Representative shall
promptly notify the Notes Representative that the ABL Representative is
exercising its access rights under this Agreement and its rights under Section 3.4 under
either circumstance.  Upon delivery of such notice by the ABL
Representative to the Notes Representative, the parties shall confer in good
faith to coordinate with respect to the ABL Representative’s exercise of such
access rights, with such access rights to apply to any Real Property or
Equipment constituting Notes Priority Collateral access to which is reasonably
necessary to enable the ABL Representative during normal business hours to
convert ABL Priority Collateral consisting of raw materials and work-in-process
into saleable finished goods and/or to transport such ABL Priority Collateral to
a point where such conversion can occur, to otherwise prepare ABL Priority
Collateral for sale and/or to arrange or effect the sale of ABL Priority
Collateral, all in accordance with the manner in which such matters are
completed in the ordinary course of business.  Consistent with the
definition of “Access
Period,” access rights will apply to differing parcels of Real Property
or items of Equipment constituting Notes Priority Collateral at differing times,
in which case, a differing Access Period will apply to each such parcel of Real
Property and each such item of Equipment.  During any pertinent Access
Period, the ABL Representative and its agents, representatives and designees
shall have a non-exclusive right to have access to, and a rent-free right to
use, the relevant Real Property or Equipment constituting Notes Priority
Collateral for the purposes described above.  The ABL Representative
shall take proper and reasonable care of any Notes Priority Collateral that is
used by the ABL Representative during the Access Period and shall repair at its
expense (without waiving any rights of reimbursement from the Loan Parties) and
replace any damage (ordinary wear-and-tear excepted) caused by any act or
omission of the ABL Representative or its agents, representatives or designees
and leave such Notes Priority Collateral in a condition substantially similar
(ordinary wear and tear excepted) to the condition of such Notes Priority
Collateral immediately prior to the date of commencement of the use thereof by
the ABL Representative.  The ABL Representative shall comply with all
applicable laws in connection with its use or occupancy or possession of the ABL
Priority Collateral.  The ABL Representative shall indemnify and hold
harmless the Notes Representative and the Notes Creditors for any injury or
damage to Persons or property (ordinary wear-and-tear excepted) caused by the
acts or omissions of Persons under its control; provided, however, that the ABL
Representative and the ABL Creditors will not be liable for any diminution in
the value of Notes Priority Collateral caused by the absence of the ABL Priority
Collateral therefrom.  The ABL Representative, for itself and on
behalf of the ABL Secured Parties, hereby acknowledges that, during the period
any Notes Priority Collateral shall be under control or possession of the Notes
Representative or the other Notes Creditors, the Notes Representatives and other
Notes Creditors shall not be obligated to take any action to protect or to
procure insurance with respect to any ABL Priority Collateral that may be
located on or in the Notes Priority Collateral, it being understood that the
Notes Representative and other Notes Creditors shall have no responsibility for
loss or damage to the ABL Priority Collateral (other than as a result of the
gross negligence or willful misconduct of the Notes Representative and/or the
other Notes Creditors or their agents) and that risk of loss or damage to the
ABL Priority Collateral shall remain with ABL Representative and the ABL Secured
Parties.  The ABL Representative and the Notes Representative shall
cooperate and use reasonable efforts to ensure that their activities during the
Access Period as described above do not interfere materially with the activities
of the other as described above, including the right of Notes Representative to
show the Notes Priority Collateral to prospective purchasers and to ready the
Notes Priority Collateral for sale.  Consistent with the definition of
the term “Access
Period,” if any order or injunction is issued or stay is granted or is
otherwise effective by operation of law that prohibits the ABL Representative
from exercising any of its rights hereunder, then the Access Period granted to
the ABL Representative under this Section 3.4 shall be
stayed during the period of such prohibition and shall continue thereafter for
the number of days remaining as required under this Section
3.4.  If any Notes Priority Collateral is sold or otherwise
transferred to a third party purchaser or transferee, the Notes Representative
shall expressly condition such sale or other transfer on such purchaser’s or
transferee’s agreement to grant the ABL Representative the access rights
otherwise applicable pursuant to this Agreement.


    
      
         


      

      
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    3.5         No Additional Rights For the
Loan Parties Hereunder.  Except as provided in Section 3.6 hereof,
if any ABL Secured Party or Notes Secured Party shall enforce its rights or
remedies in violation of the terms of this Agreement, no Loan Party shall be
entitled to use such violation as a defense to any action by any ABL Secured
Party or Notes Secured Party, nor to assert such violation as a counterclaim or
basis for set off or recoupment against any ABL Secured Party or Notes Secured
Party.

     

    3.6         Actions Upon
Breach.  (a) If any ABL Secured Party or Notes Secured Party,
contrary to this Agreement, commences or participates in any action or
proceeding against any Loan Party or the Common Collateral, such Loan Party,
with the prior written consent of the ABL Representative or the Notes
Representative, as applicable, may interpose as a defense or dilatory plea the
making of this Agreement, and any ABL Secured Party or Notes Secured Party, as
applicable, may intervene and interpose such defense or plea in its or their
name or in the name of such Loan Party.

     

    (b)           Should
any ABL Secured Party or Notes Secured Party, contrary to this Agreement, in any
way take, attempt to or threaten to take any action with respect to the Common
Collateral (including, without limitation, any attempt to realize upon or
enforce any remedy with respect to this Agreement), or fail to take any action
required by this Agreement, any ABL Secured Party or Notes Secured Party (in its
own name or in the name of the relevant Loan Party), as applicable, or the
relevant Loan Party, may obtain relief against such ABL Secured Party or Notes
Secured Party, as applicable, by injunction, specific performance and/or other
appropriate equitable relief, it being understood and agreed by each of the ABL
Representative on behalf of each ABL Secured Party and the Notes Representative
on behalf of each Notes Secured Party that (i) the ABL Secured Parties’ or Notes
Secured Parties’, as applicable, damages from its actions may at that time be
difficult to ascertain and may be irreparable, and (ii) each Notes Secured Party
or ABL Secured Party, as applicable, waives any defense that the Loan Parties
and/or the Notes Secured Parties and/or ABL Secured Parties, as applicable,
cannot demonstrate damage and/or be made whole by the awarding of
damages.

     

    SECTION
4.       Application of Proceeds of Senior Collateral; Dispositions
and Releases of Lien; Notices and Insurance.

     

    4.1         Application of
Proceeds.

     

    (a)           Application of Proceeds of
Senior Collateral.  Subject to clause (d) below, whether or not
any Insolvency Proceeding has been commenced by or against any Loan Party and
whether or not any default or event of default under the Senior Documents has
occurred, the Senior Representative and Junior Representative hereby agree that
all Senior Collateral, and all Proceeds thereof, received by either of them in
connection with the collection, sale or disposition of Senior Collateral
constituting an Enforcement Action shall be applied,

     

    first, to the payment
of costs and expenses (including reasonable attorneys fees and expenses and
court costs) of the Senior Secured Parties in connection with such Enforcement
Action,


    
      
         


      

      
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    second, to the
payment of the Senior Obligations in accordance with the Senior Documents until
the Senior Obligations Payment Date,

     

    third, to the payment
of the Junior Obligations in accordance with the Junior Documents until the
Junior Obligations Payment Date,

     

    fourth, in respect of
ABL Collateral or Proceeds thereof, to the payment of any ABL Excess Amount,
and

     

    fifth, the balance,
if any, to the Loan Parties or to whosoever may be lawfully entitled to receive
the same or as a court of competent jurisdiction may direct.

     

    (b)           Limited Obligation or
Liability.  In exercising remedies, whether as a secured
creditor or otherwise, the Senior Representative shall have no obligation or
liability to the Junior Representative or to any Junior Secured Party, regarding
the adequacy of any Proceeds or for any action or omission, save and except
solely for an action or omission that breaches the express obligations
undertaken by each party under the terms of this Agreement.

     

    (c)           Segregation of Collateral;
Turnover.  Until the occurrence of the Senior Obligations
Payment Date, whether or not an Insolvency Proceeding has been commenced by or
against any Loan Party, any Senior Collateral that may be received by any Junior
Secured Party in violation of this Agreement shall be segregated and held in
trust and promptly paid over to the Senior Representative, for the benefit of
the Senior Secured Parties, in the same form as received with any necessary
endorsements, or as a court of competent jurisdiction may otherwise direct and
each Junior Secured Party hereby authorizes the Senior Representative to make
any such endorsements as agent for the Junior Representative (which
authorization, being coupled with an interest, is irrevocable).

     

    (d)           Mixed Collateral
Proceeds.  Notwithstanding anything to the contrary contained
above or in the definition of the ABL Priority Collateral or Notes Priority
Collateral, in the event that proceeds of Common Collateral are received from
(or are otherwise attributable to the value of) a sale or other disposition of
Common Collateral that involves a combination of ABL Priority Collateral and
Notes Priority Collateral, the portion of such proceeds that shall be allocated
as proceeds of ABL Priority Collateral for purposes of this Agreement shall be
an amount equal to the net book value of such ABL Priority Collateral (except in
the case of Accounts which amount shall be equal to the face amount of such
Accounts).  In addition, notwithstanding anything to the contrary
contained above or in the definition of the ABL Priority Collateral or Term Loan
Priority Collateral, to the extent proceeds of Collateral are proceeds received
from (or are otherwise attributable to the value of) the sale or disposition of
all or substantially all of the Capital Stock of any Subsidiary of Borrower
which is a Loan Party or all or substantially all of the assets of any such
Subsidiary, such proceeds shall constitute (1) first, in an amount equal to the
face amount of the Accounts and the net book value of all other ABL Priority
Collateral owned by such Subsidiary at the time of such sale, ABL Priority
Collateral and (2) second, to the extent in excess of the amounts described in
preceding clause (1), Term Loan Priority Collateral.


    
      
         


      

      
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    4.2         Releases of
Liens.  Upon any release, sale or disposition of Senior
Collateral permitted pursuant to the terms of the Senior Documents that results
in the release of the Senior Lien on any Senior Collateral (including without
limitation any sale or other disposition pursuant to any Enforcement Action)
(other than release of the Senior Lien due to the occurrence of the Senior
Obligations Payment Date), the Junior Lien on such Senior Collateral (excluding
any portion of the proceeds of such Senior Collateral remaining after the Senior
Obligations Payment Date occurs) shall be automatically and unconditionally
released with no further consent or action of any Person.  The Junior
Representative shall, at the Loan Parties’ expense, promptly execute and deliver
such release documents and instruments and shall take such further actions as
the Senior Representative shall request to evidence any release of the Junior
Lien described in this Section
4.2.  The Junior Representative hereby appoints the Senior
Representative and any officer or duly authorized person of the Senior
Representative, with full power of substitution, as its true and lawful
attorney-in-fact with full irrevocable power of attorney in the place and stead
of the Junior Representative and in the name of the Junior Representative or in
the Senior Representative’s own name, from time to time, in the Senior
Representative’s sole discretion, for the purposes of carrying out the terms of
this Section
4.2, to take any and all appropriate action and to execute and deliver
any and all documents and instruments as may be necessary or desirable to
accomplish the purposes of this Section 4.2,
including, without limitation, any financing statements, endorsements,
assignments, releases or other documents or instruments of transfer (which
appointment, being coupled with an interest, is irrevocable).  Until
the Senior Obligations Payment Date occurs, to the extent that the Senior
Secured Parties have released any Lien on Senior Collateral and any such Lien is
later reinstated, then the Junior Secured Parties shall be granted a Junior Lien
on any such Senior Collateral.

     

    4.3         Certain Real Property
Notices; Insurance.

     

    (a)           The
Notes Representative shall give the ABL Representative at least 30 days notice
prior to commencing any Enforcement Action against any Real Property owned by
any Loan Party at which ABL Priority Collateral is stored or otherwise located
or to dispossess any Loan Party from such Real Property (it being understood
that failure to give such notice shall not affect the effectiveness or validity
of such Enforcement Action).

     

    (b)           Proceeds
of Common Collateral include insurance proceeds and therefore the Lien Priority
shall govern the ultimate disposition of casualty insurance
proceeds.  The ABL Representative shall be named as additional insured
or loss payee, as applicable, with respect to all insurance policies relating to
ABL Priority Collateral and the Notes Representative shall be named as
additional insured or loss payee, as applicable, with respect to all insurance
policies relating to Notes Priority Collateral.  The ABL
Representative shall have the sole and exclusive right, as against the Notes
Representative, to adjust settlement of insurance claims in the event of any
covered loss, theft or destruction of ABL Priority Collateral.  The
Notes Representative shall have the sole and exclusive right, as against the ABL
Representative, to adjust settlement of insurance claims in the event of any
covered loss, theft or destruction of Notes Priority Collateral.  If,
and to the extent of, any loss under an insurance policy that covers both ABL
Priority Collateral and Notes Priority Collateral, the ABL Representative and
the Notes Representative shall work jointly in good faith to adjust or settle
under the applicable insurance policy.  Each of the Notes
Representative and ABL Representative shall cooperate (if necessary) in a
reasonable manner in effecting the payment of insurance proceeds in accordance
with Section
4.1.

     

    SECTION
5.       Insolvency
Proceedings.

     

    5.1         Filing of
Motions.  Until the Senior Obligations Payment Date has
occurred, the Junior Representative agrees on behalf of itself and the other
Junior Secured Parties that no Junior Secured Party shall, in or in connection
with any Insolvency Proceeding, file any pleadings or motions, take any position
at any hearing or proceeding of any nature, or otherwise take any action
whatsoever, in each case in respect of any of the Senior Collateral, including,
without limitation, with respect to the determination of any Liens or claims
held by the Senior Representative (including the validity and enforceability
thereof) or any other Senior Secured Party in respect of any Senior Collateral
or the value of any claims of such parties under Section 506(a) of the
Bankruptcy Code or otherwise; provided that the
Junior Representative may (a) file a proof of claim in an Insolvency Proceeding,
and (b) file any necessary responsive or defensive pleadings in opposition of
any motion or other pleadings made by any Person objecting to or otherwise
seeking the disallowance of any Person objecting to or otherwise seeking the
disallowance of the claims of the Junior Secured Parties on the Senior
Collateral, subject to the limitations contained in this Agreement and only if
consistent with the terms and the limitations on the Junior Representative
imposed hereby.


    
      
         


      

      
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    5.2         Financing
Matters.  (a) If any Loan
Party becomes subject to any Insolvency Proceeding in the United States at any
time prior to the ABL Obligations Payment Date, and if the ABL Representative or
the other ABL Secured Parties desire to consent (or not object) to the use of
ABL Priority Collateral constituting cash collateral under the Bankruptcy Code
or to provide financing to any Loan Party under the Bankruptcy Code or to
consent (or not object) to the provision of such financing to any Loan Party by
any third party secured by all or a portion of the ABL Priority Collateral (any
such financing, “ABL DIP Financing”),
then the Notes Representative agrees, on behalf of itself and the other Notes
Secured Parties, that each Notes Secured Party (i) will be deemed to have
consented to, will raise no objection to, nor support any other Person objecting
to, the use of such cash collateral or to such ABL DIP Financing on the grounds
of a failure to provide “adequate protection” for the Notes Representative’s
Lien on the Notes Collateral to secure the Notes Obligations or on any other
grounds (and will not request any adequate protection solely as a result of such
ABL DIP Financing) and (ii) will subordinate (and will be deemed hereunder to
have subordinated) the Notes Liens on any ABL Priority Collateral (A) to such
ABL DIP Financing on the same terms as the ABL Liens are subordinated thereto
(and such subordination will not alter in any manner the terms of this
Agreement), (B) to any adequate protection provided to the ABL Secured Parties
and (C) to any “carve-out” for professional fees and customary fees and expenses
agreed to by the ABL Representative or the other ABL Secured Parties and
approved by the bankruptcy court, so long as (w) such ABL DIP Financing will not
result in the Capped ABL Obligations exceeding the ABL Cap Amount, (x) the
Notes Representative retains its Lien on the Notes Collateral to secure the
Notes Obligations (in each case, including Proceeds thereof arising after the
commencement of the case under the Bankruptcy Code) and, as to the Notes
Priority Collateral only, such Lien has the same priority as existed prior to
the commencement of the case under the Bankruptcy Code and any Lien securing
such ABL DIP Financing is junior and subordinate to the Lien of the Notes
Representative on the Notes Priority Collateral, (y) all Liens on ABL Priority
Collateral securing any such ABL DIP Financing shall be senior to or on a parity
with the Liens of the ABL Representative and the other ABL Secured Parties
securing the ABL Obligations on ABL Priority Collateral and (z) if the ABL
Representative receives a replacement or adequate protection Lien on
post-petition assets of the debtor to secure the ABL Obligations, and such
replacement or adequate protection Lien is on any of the Notes Priority
Collateral, (1) such replacement or adequate protection Lien on such
post-petition assets which are part of the Notes Priority Collateral (the “Notes Post-Petition
Assets”) is junior and subordinate to the Lien in favor of the Notes
Representative on the Notes Priority Collateral and (2) the Notes Representative
also receives a replacement or adequate protection Lien on such Notes
Post-Petition Assets of the debtor to secure the Notes
Obligations.  In no event will any of the ABL Secured Parties seek to
obtain a priming Lien on any of the Notes Priority Collateral and nothing
contained herein shall be deemed to be a consent by Notes Secured Parties to any
adequate protection payments using Notes Priority Collateral.


    
      
         


      

      
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    (b)           If
any Loan Party becomes subject to any Insolvency Proceeding in the United States
at any time prior to the Notes Obligations Payment Date, and if the Notes
Representative or the other Notes Secured Parties desire to consent (or not
object) or to provide financing to any Loan Party under the Bankruptcy Code or
to consent (or not object) to the provision of such financing to any Loan Party
by any third party secured by all or a portion of the Notes Priority Collateral
(any such financing, “Notes DIP
Financing”), then the ABL Representative agrees, on behalf of itself and
the other ABL Secured Parties, that each ABL Secured Party (i) will be deemed to
have consented to, will raise no objection to, nor support any other Person
objecting to such Notes DIP Financing on the grounds of a failure to provide
“adequate protection” for the ABL Representative’s Lien on the ABL Collateral to
secure the ABL Obligations or on any other grounds (and will not request any
adequate protection solely as a result of such Notes DIP Financing) and (ii)
will subordinate (and will be deemed hereunder to have subordinated) the ABL
Liens on any Notes Priority Collateral (A) to such Notes DIP Financing on the
same terms as the Notes Liens are subordinated thereto (and such subordination
will not alter in any manner the terms of this Agreement), (B) to any adequate
protection provided to the Notes Secured Parties and (C) to any “carve-out” for
professional fees and customary fees and expenses agreed to by the Notes
Representative or the other Notes Secured Parties and approved by the bankruptcy
court, so long as (x) the ABL Representative retains its Lien on the ABL
Collateral to secure the ABL Obligations (in each case, including Proceeds
thereof arising after the commencement of the case under the Bankruptcy Code)
and, as to the ABL Priority Collateral only, such Lien has the same priority as
existed prior to the commencement of the case under the Bankruptcy Code and any
Lien securing such Notes DIP Financing is junior and subordinate to the Lien of
the ABL Representative on the ABL Priority Collateral, (y) all Liens on Notes
Priority Collateral securing any such Notes DIP Financing shall be senior to or
on a parity with the Liens of the Notes Representative and the other Notes
Secured Parties securing the Notes Obligations on Notes Priority Collateral and
(z) if the Notes Representative receives a replacement or adequate protection
Lien on post-petition assets of the debtor to secure the Notes Obligations, and
such replacement or adequate protection Lien is on any of the ABL Priority
Collateral, (1) such replacement or adequate protection Lien on such
post-petition assets which are part of the ABL Priority Collateral (the “ABL Post-Petition
Assets”) is junior and subordinate to the Lien in favor of the ABL
Representative on the ABL Priority Collateral and (2) the ABL Representative
also receives a replacement or adequate protection Lien on such ABL
Post-Petition Assets of the debtor to secure the ABL Obligations.  In
no event will any of the Notes Secured Parties seek to obtain a priming Lien on
any of the ABL Priority Collateral, and nothing contained herein shall be deemed
to be a consent by the ABL Secured Parties to any adequate protection payments
using ABL Priority Collateral.

     

    (c)           All
Liens granted to the Notes Representative or the ABL Representative in any
Insolvency Proceeding, whether as adequate protection or otherwise, are intended
to be and shall be deemed to be subject to the Lien Priority and the other terms
and conditions of this Agreement.

     

    5.3           Relief From the Automatic
Stay.  Until the ABL Obligations Payment Date, the Notes
Representative agrees, on behalf of itself and the other Notes Secured Parties,
that none of them will seek (or support any other Person in seeking) relief from
the automatic stay or from any other stay in any Insolvency Proceeding or take
any action in derogation thereof, in each case in respect of any ABL Priority
Collateral, without the prior written consent of the ABL
Representative.  Until the Notes Obligations Payment Date, the ABL
Representative agrees, on behalf of itself and the other ABL Secured Parties,
that none of them will seek relief from the automatic stay or from any other
stay in any Insolvency Proceeding or take any action in derogation thereof, in
each case in respect of any Notes Priority Collateral, without the prior written
consent of the Notes Representative.  In addition, neither the Notes
Representative nor the ABL Representative shall seek any relief from the
automatic stay with respect to any Common Collateral without providing 30 days’
prior written notice to the other, unless otherwise agreed by both the ABL
Representative and the Notes Representative.

     

    5.4           No
Contest.  The Junior Representative, on behalf of itself and
the Junior Secured Parties, agrees that, prior to the Senior Obligations Payment
Date, none of them shall contest (or support any other Person contesting) (a)
any request by the Senior Representative or any Senior Secured Party for
adequate protection of its interest in the Senior Collateral (unless in
contravention of Section 5.2(a) or (b), as applicable),
or (b) any objection by the Senior Representative or any Senior Secured Party to
any motion, relief, action, or proceeding based on a claim by the Senior
Representative or any Senior Secured Party that its interests in the Senior
Collateral (unless in contravention of Section 5.2(a) or (b), as applicable)
are not adequately protected (or any other similar request under any law
applicable to an Insolvency Proceeding), so long as any Liens granted to the
Senior Representative as adequate protection of its interests are subject to
this Agreement.


    
      
         


      

      
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    5.5           Avoidance
Issues.  If any Senior Secured Party is required in any
Insolvency Proceeding or otherwise to disgorge, turn over or otherwise pay to
the estate of any Loan Party, because such amount was avoided or ordered to be
paid or disgorged for any reason, including without limitation because it was
found to be a fraudulent or preferential transfer, any amount (a “Recovery”), whether
received as proceeds of security, enforcement of any right of set-off or
otherwise, then the Senior Obligations shall be reinstated to the extent of such
Recovery and deemed to be outstanding as if such payment had not occurred and
the Senior Obligations Payment Date shall be deemed not to have occurred and to
the extent that the ABL Cap Amount was decreased in connection with any such
payment of ABL Obligations, the ABL Cap Amount shall be increased to such
extent.  If this Agreement shall have been terminated prior to such
Recovery, this Agreement shall be reinstated in full force and effect, and such
prior termination shall not diminish, release, discharge, impair or otherwise
affect the obligations of the parties hereto.  The Junior Secured
Parties agree that none of them shall be entitled to benefit from any avoidance
action affecting or otherwise relating to any distribution or allocation made in
accordance with this Agreement, whether by preference or otherwise, it being
understood and agreed that the benefit of such avoidance action otherwise
allocable to them shall instead be allocated and turned over for application in
accordance with the priorities set forth in this Agreement.

     

    5.6           Asset Dispositions in an
Insolvency Proceeding.  Neither the Junior Representative nor
any other Junior Secured Party shall, in an Insolvency Proceeding or otherwise,
oppose any sale or disposition of any Senior Collateral that is supported by the
Senior Secured Parties, and the Junior Representative and each other Junior
Secured Party will be deemed to have consented under Section 363 of the
Bankruptcy Code (and otherwise) to any sale of any Senior Collateral supported
by the Senior Secured Parties and to have released their Liens on such assets;
provided that this Section 5.6 shall not
apply to any case of a sale or disposition of Real Property constituting Notes
Priority Collateral unless the ABL Representative has received at least 60 days
prior notice of the consummation of any such sale.

     

    5.7           Other
Matters.  To the extent that the Senior Representative or any
Senior Secured Party has or acquires rights under Section 363 or Section 364 of
the Bankruptcy Code with respect to any of the Junior Collateral, the Senior
Representative agrees, on behalf of itself and the other Senior Secured Parties,
not to assert any of such rights without the prior written consent of the Junior
Representative; provided that if
requested by the Junior Representative, the Senior Representative shall timely
exercise such rights in the manner requested by the Junior Representative,
including any rights to payments in respect of such rights.

     

    5.8           Effectiveness in Insolvency
Proceedings.  This Agreement, which the parties hereto
expressly acknowledge is a “subordination agreement” under section 510(a) of the
Bankruptcy Code, shall be effective before, during and after the commencement of
an Insolvency Proceeding.

     

    SECTION
6.       Notes Documents and ABL
Documents.

     

    (a)           Each
Loan Party and the Notes Representative, on behalf of itself and the Notes
Secured Parties, agrees that it shall not at any time execute or deliver any
amendment or other modification to any of the Notes Documents inconsistent with
or in violation of this Agreement.

     

    (b)           Each
Loan Party and the ABL Representative, on behalf of itself and the ABL Secured
Parties, agrees that it shall not at any time execute or deliver any amendment
or other modification to any of the ABL Documents inconsistent with or in
violation of this Agreement.

     

    
      
         


      

      
        24

        
          

        

      

      
         


      

    


    (c)           In
the event the Senior Representative enters into any amendment, waiver or consent
in respect of any of the Senior Security Documents for the purpose of adding to,
or deleting from, or waiving or consenting to any departures from any provisions
of, any Senior Security Document (including any release of any Lien in favor of
such Senior Secured Party) or changing in any manner the rights of any parties
thereunder, in each case solely with respect to any Senior Collateral, then such
amendment, waiver or consent shall apply automatically to any comparable
provision of the Comparable Security Document without the consent of or action
by any Junior Secured Party (with all such amendments, waivers and modifications
subject to the terms hereof); provided that, (i) no
such amendment, waiver or consent shall have the effect of removing assets
subject to the Lien of any Junior Security Document, except to the extent that a
release of such Lien is permitted by Section 4.2, (ii) no
such amendment, waiver or consent with respect to any provision applicable to
the Junior Representative under the Junior Documents shall be made without the
prior written consent of the Junior Representative, and (iii) notice of such
amendment, waiver or consent shall be given to the Junior Representative no
later than 30 days after its effectiveness, provided that the
failure to give such notice shall not affect the effectiveness and validity
thereof.

     

    SECTION
7.       Purchase
Options.

     

    7.1           Notice of
Exercise.  (a) Upon the occurrence and during the continuance
of an “Event of Default” under the ABL Documents, if such Event of Default
remains uncured or unwaived for at least thirty (30) consecutive days and the
requisite ABL Creditors have not agreed to forbear from the exercise of
remedies, all or a portion of the Notes Creditors, acting as a single group,
shall have the option at any time upon five (5) Business Days’ prior written
notice to the ABL Representative to purchase all (but not less than all) of the
ABL Obligations from the ABL Secured Parties.  Such notice from such
Notes Creditors to the ABL Representative shall be irrevocable.

     

    (b)           Upon
the occurrence and during the continuance of an “Event of Default” under the
Notes Documents, if such Event of Default remains uncured or unwaived for at
least thirty (30) consecutive days and the requisite Notes Creditors have not
agreed to forbear from the exercise of remedies, all or a portion of the ABL
Creditors, acting as a single group, shall have the option at any time upon five
(5) Business Days’ prior written notice to the Notes Representative to purchase
all (but not less than all) of the Notes Obligations from the Notes Secured
Parties.  Such notice from such ABL Creditors to the Notes
Representative shall be irrevocable.

     

    7.2           Purchase and
Sale.  (a) On the date specified by the relevant Notes
Creditors in the notice contemplated by Section 7.1(a) above
(which shall not be less than five (5) Business Days, nor more than twenty (20)
calendar days, after the receipt by the ABL Representative of the notice of the
relevant Notes Creditor’s election to exercise such option), the ABL Lenders
shall sell to the relevant Notes Creditors, and the relevant Notes Creditors
shall purchase from the ABL Creditors, the ABL Obligations, provided that, the
ABL Representative and the other ABL Secured Parties shall retain all rights to
be indemnified or held harmless by the Loan Parties in accordance with the terms
of the ABL Documents but shall not retain any rights to the security
therefor.

     

    (b)           On
the date specified by the relevant ABL Creditors in the notice contemplated by
Section 7.1(b)
above (which shall not be less than five (5) Business Days, nor more than twenty
(20) calendar days, after the receipt by the Notes Representative of the notice
of the relevant ABL Creditor’s election to exercise such option), the Notes
Creditors shall sell to the relevant ABL Creditors, and the relevant ABL
Creditors shall purchase from the Notes Creditors, the Notes Obligations, provided that, the
Notes Representative and the other Notes Secured Parties shall retain all rights
to be indemnified or held harmless by the Loan Parties in accordance with the
terms of the Notes Documents but shall not retain any rights to the security
therefor.

     

    
      
         


      

      
        25

        
          

        

      

      
         


      

    


    7.3           Payment of Purchase
Price.  Upon the date of such purchase and sale, the relevant
Notes Creditors or the relevant ABL Creditors, as applicable, shall (a) pay to
the ABL Representative for the benefit of the ABL Creditors (with respect to a
purchase of the ABL Obligations) or to the Notes Representative for the benefit
of the Notes Creditors (with respect to a purchase of the Notes Obligations) as
the purchase price therefor the full amount of all the ABL Obligations or Notes
Obligations, as applicable, then outstanding and unpaid (including principal,
interest, fees and expenses, including reasonable attorneys’ fees and legal
expenses but specifically excluding any prepayment premium, make-whole,
termination or similar fees), (b) with respect to a purchase of the ABL
Obligations, furnish cash collateral to the ABL Representative in a manner and
in such amounts as the ABL Representative determines is reasonably necessary to
secure the ABL Representative, the ABL Secured Parties, letter of credit issuing
banks and applicable affiliates in connection with any issued and outstanding
letters of credit, Swap Obligations and Banking Service Obligations secured by
the ABL Documents, (c) with respect to a purchase of the ABL Obligations, agree
to reimburse the ABL Representative, the ABL Secured Parties and letter of
credit issuing banks for any loss, cost, damage or expense (including reasonable
attorneys’ fees and legal expenses) in connection with any commissions, fees,
costs or expenses related to any issued and outstanding letters of credit as
described above and any checks or other payments provisionally credited to the
ABL Obligations, and/or as to which the ABL Representative has not yet received
final payment, (d) agree to reimburse the ABL Secured Parties or the Notes
Secured Parties, as applicable, and with respect to a purchase of the ABL
Obligations letter of credit issuing banks, in respect of indemnification
obligations of the Loan Parties under the ABL Documents or the Notes Documents,
as applicable, as to matters or circumstances known to the ABL Representative or
the Notes Representative, as applicable, at the time of the purchase and sale
which would reasonably be expected to result in any loss, cost, damage or
expense (including reasonable attorneys’ fees and legal expenses) to the ABL
Secured Parties, the Notes Secured Parties or letter of credit issuing banks, as
applicable, and (e) agree to indemnify and hold harmless the ABL Secured Parties
or the Notes Secured Parties, as applicable, and with respect to a purchase of
the ABL Obligations letter of credit issuing banks, from and against any loss,
liability, claim, damage or expense (including reasonable fees and expenses of
legal counsel) arising out of any claim asserted by a third party in respect of
the ABL Obligations or the Notes Obligations, as applicable, as a direct result
of any acts by any Notes Secured Party or any ABL Secured Party, as applicable,
occurring after the date of such purchase.  Such purchase price and
cash collateral shall be remitted by wire transfer in federal funds to such bank
account in New York, New York as the ABL Representative or the Notes
Representative, as applicable, may designate in writing for such
purpose.

     

    7.4           Limitation on
Representations and Warranties.  Such purchase shall be
expressly made without representation or warranty of any kind by any selling
party (or the ABL Representative or the Notes Representative) and without
recourse of any kind, except that the selling party shall represent and
warrant:  (a) the amount of the ABL Obligations or Notes Obligations,
as applicable, being purchased from it, (b) that such ABL Secured Party or Notes
Secured Party, as applicable, owns the ABL Obligations or Notes Obligations, as
applicable, free and clear of any Liens or encumbrances and (c) that such ABL
Secured Party or Notes Secured Party, as applicable, has the right to assign
such ABL Obligations or Notes Obligations, as applicable, and the assignment is
duly authorized.

     

    SECTION
8.        Reliance; Waivers;
etc.

     

    8.1           Reliance.  The
ABL Documents are deemed to have been executed and delivered, and all extensions
of credit thereunder are deemed to have been made or incurred, in reliance upon
this Agreement.  The Notes Representative, on behalf of it itself and
the other Notes Secured Parties, expressly waives all notice of the acceptance
of and reliance on this Agreement by the ABL Representative and the other ABL
Secured Parties.  The Notes Documents are deemed to have been executed
and delivered and all extensions of credit thereunder are deemed to have been
made or incurred, in reliance upon this Agreement.  The ABL
Representative, on behalf of itself and the other ABL Secured Parties, expressly
waives all notices of the acceptance of and reliance on this Agreement by the
Notes Representative and the other Notes Secured Parties.

     

    
      
         


      

      
        26

        
          

        

      

      
         


      

    


    8.2           No Warranties or
Liability.  The Notes Representative and the ABL Representative
acknowledge and agree that neither has made any representation or warranty with
respect to the execution, validity, legality, completeness, collectibility or
enforceability of any other ABL Document or any Notes
Document.  Except as otherwise provided in this Agreement, the Notes
Representative and the ABL Representative will be entitled to manage and
supervise the respective extensions of credit to any Loan Party in accordance
with law and their usual practices, modified from time to time as they deem
appropriate.

     

    8.3           No
Waivers.  No right or benefit of any party hereunder shall at
any time in any way be prejudiced or impaired by any act or failure to act on
the part of such party or any other party hereto or by any noncompliance by any
Loan Party with the terms and conditions of any of the ABL Documents or the
Notes Documents.

     

    SECTION
9.       Obligations
Unconditional. For so long as this Agreement is in full force and
effect, all rights, interests, agreements and obligations hereunder of the
Senior Representative and the Senior Secured Parties in respect of any
Collateral and the Junior Representative and the Junior Secured Parties in
respect of such Collateral shall remain in full force and effect regardless
of:

     

    (a)           any
lack of validity or enforceability of any Senior Document or any Junior Document
and regardless of whether the Liens of the Senior Representative and Senior
Secured Parties are not perfected or are voidable for any reason;

     

    (b)           any
change in the time, manner or place of payment of, or in any other terms of, all
or any of the Senior Obligations or Junior 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 Senior Document
or any Junior Document;

     

    (c)           any
exchange, release or lack of perfection of any Lien on any Collateral or any
other asset, or any amendment, waiver or other modification, whether in writing
or by course of conduct or otherwise, of all or any of the Senior Obligations or
Junior Obligations or any guarantee thereof;

     

    (d)           the
commencement of any Insolvency Proceeding in respect of any Loan Party;
or

     

    (e)           any
other circumstances which otherwise might constitute a defense available to, or
a discharge of, any Loan Party in respect of any Secured Obligation or of any
Junior Secured Party in respect of this Agreement.

     

    
      
         


      

      
        27

        
          

        

      

      
         


      

    


    SECTION
10.     Miscellaneous.

     

    10.1         Rights of
Subrogation.  The Notes Representative, for and on behalf of
itself and the Notes Secured Parties, agrees that no payment to the ABL
Representative or any ABL Secured Party pursuant to the provisions of this
Agreement shall entitle the Notes Representative or any Notes Secured Party to
exercise any rights of subrogation in respect thereof until the ABL Obligations
Payment Date.  Following the ABL Obligations Payment Date, the ABL
Representative agrees to execute such documents, agreements, and instruments as
the Notes Representative or any Notes Secured Party may reasonably request to
evidence the transfer by subrogation to any such Person of an interest in the
ABL Obligations resulting from payments to the ABL Representative by such
Person, so long as all costs and expenses (including all reasonable legal fees
and disbursements) incurred in connection therewith by the ABL Representative
are paid by such Person upon request for payment thereof.  The ABL
Representative, for and on behalf of itself and the ABL Secured Parties, agrees
that no payment to the Notes Representative or any Notes Secured Party pursuant
to the provisions of this Agreement shall entitle the ABL Representative or any
ABL Secured Party to exercise any rights of subrogation in respect thereof until
the Notes Obligations Payment Date.  Following the Notes Obligations
Payment Date, the Notes Representative agrees to execute such documents,
agreements, and instruments as the ABL Representative or any ABL Secured Party
may reasonably request to evidence the transfer by subrogation to any such
Person of an interest in the Notes Obligations resulting from payments to the
Notes Representative by such Person, so long as all costs and expenses
(including all reasonable legal fees and disbursements) incurred in connection
therewith by the Notes Representative are paid by such Person upon request for
payment thereof.

     

    10.2         Further
Assurances.  Each of the Notes Representative and the ABL
Representative will, at the Loan Parties’ expense and at any time and from time
to time, promptly execute and deliver all further instruments and documents, and
take all further action, that may be necessary or desirable, or that the other
party may reasonably request, in order to protect any right or interest granted
or purported to be granted hereby or to enable the ABL Representative or the
Notes Representative to exercise and enforce its rights and remedies hereunder;
provided, however, that no
party shall be required to pay over any payment or distribution, execute any
instruments or documents, or take any other action referred to in this Section 10.2, to the
extent that such action would contravene any law, order or other legal
requirement or any of the terms or provisions of this Agreement, and in the
event of a controversy or dispute, such party may interplead any payment or
distribution in any court of competent jurisdiction, without further
responsibility in respect of such payment or distribution under this Section
10.2.

     

    10.3         Conflicts.  In
the event of any conflict between the provisions of this Agreement and the
provisions of any ABL Document or any Notes Document, the provisions of this
Agreement shall govern to the extent of such conflict.

     

    10.4         Continuing Nature of
Provisions.  Subject to Section 5.5, this
Agreement shall continue to be effective, and shall not be revocable by any
party hereto, until the earlier of (a) the ABL Obligations Payment Date and (b)
the Notes Obligations Payment Date.  This is a continuing agreement
and the ABL Secured Parties and the Notes Secured Parties may continue, at any
time and without notice to the other parties hereto, to extend credit and other
financial accommodations, lend monies and provide indebtedness to, or for the
benefit of, any Loan Party on the faith hereof.

     

    10.5         Amendments;
Waivers.  (a) No amendment or modification of any of the
provisions of this Agreement shall be effective unless the same shall be in
writing and signed by the ABL Representative and the Notes
Representative.  Each Loan Party agrees that this Agreement may be
amended or modified by the ABL Representative and the Notes Representative
without notice to, or the consent of, any Loan Party, provided no Loan Party
shall be bound by any such amendment or modification that directly and adversely
affects the rights or duties of such Loan Party in any material
respect.

     

    (b)           It
is understood that the ABL Representative and the Notes Representative, without
the consent of any other ABL Secured Party or Notes Secured Party, may in their
discretion determine that a supplemental agreement (which may take the form of
an amendment and restatement of this Agreement) is necessary or appropriate to
facilitate having additional indebtedness or other obligations (“Additional Debt”) of
any of the Loan Parties become ABL Obligations or Notes Obligations, as the case
may be, under this Agreement, which supplemental agreement shall specify whether
such Additional Debt constitutes ABL Obligations or Notes Obligations, provided, that such
Additional Debt is permitted to be incurred by the ABL Agreement and Indenture
then extant, and is permitted by said Agreements to be subject to the provisions
of this Agreement as ABL Obligations or Notes Obligations, as
applicable.


    
      
         


      

      
        28

        
          

        

      

      
         


      

    

    


     

    10.6         Information Concerning
Financial Condition of the Loan Parties.  The Notes
Representative and the ABL Representative hereby agree that no party shall have
any duty to advise any other party of information known to it regarding the
financial condition of the Loan Parties or any other circumstances bearing upon
the risk of nonpayment of the ABL Obligations or the Note Obligations (except as
otherwise provided in the ABL Documents and Notes Documents).  In the
event the Notes Representative or the ABL Representative, in its sole
discretion, undertakes at any time or from time to time to provide any
information to any other party to this Agreement, it shall be under no
obligation (a) to provide any such information to such other party or any other
party on any subsequent occasion, (b) to undertake any investigation not a part
of its regular business routine, or (c) to disclose any other
information.

     

    10.7         Governing
Law.  This Agreement shall be construed in accordance with and
governed by the law of the State of New York, except as otherwise required by
mandatory provisions of law and except to the extent that remedies provided by
the laws of any jurisdiction other than the State of New York are governed by
the laws of such jurisdiction.

     

    10.8         Submission to Jurisdiction;
JURY TRIAL WAIVER.  (a) Each ABL Secured Party, each Notes
Secured Party and each Loan Party hereby irrevocably and unconditionally
submits, for itself and its property, to the nonexclusive jurisdiction of the
Supreme Court of the State of New York sitting in New York County and of the
United States District Court of the Southern District of New York, and any
appellate court from any thereof, in any action or proceeding arising out of or
relating to this Agreement, or for recognition or enforcement of any judgment,
and each such party hereby irrevocably and unconditionally agrees that all
claims in respect of any such action or proceeding may be heard and determined
in such New York State or, to the extent permitted by law, in such Federal
court.  Each such party agrees that a final judgment in any such
action or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by
law.  Nothing in this Agreement shall affect any right that the any
ABL Secured Party or Notes Secured Party may otherwise have to bring any action
or proceeding against any Loan Party or its properties in the courts of any
jurisdiction.

     

    (b)           Each
ABL Secured Party, each Notes Secured Party and each Loan Party hereby
irrevocably and unconditionally waives, to the fullest extent it may legally and
effectively do so (i) any objection it may now or hereafter have to the laying
of venue of any suit, action or proceeding arising out of or relating to this
Agreement in any court referred to in paragraph (a) of this Section and (ii) the
defense of an inconvenient forum to the maintenance of such action or
proceeding.

     

    (c)           Each
party to this Agreement irrevocably consents to service of process in the manner
provided for notices in Section
10.9.  Nothing in this Agreement will affect the right of any
party to this Agreement to serve process in any other manner permitted by
law.

     

    (d)           EACH
PARTY HERETO HEREBY WAIVES ITS RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR
CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT OR ANY OF THE
TRANSACTIONS CONTEMPLATED HEREIN, INCLUDING CONTRACT CLAIMS, TORT CLAIMS, BREACH
OF DUTY CLAIMS, AND ALL OTHER COMMON LAW OR STATUTORY CLAIMS.  EACH
PARTY HERETO REPRESENTS THAT IT HAS REVIEWED THIS WAIVER AND IT KNOWINGLY AND
VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL
COUNSEL.  IN THE EVENT OF LITIGATION, A COPY OF THIS AGREEMENT MAY BE
FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT.

     

    
      
         


      

      
        29

        
          

        

      

      
         


      

    

     

    10.9         Notices.  Unless
otherwise specifically provided herein, any notice or other communication herein
required or permitted to be given shall be in writing and may be personally
served, telecopied, or sent by overnight express courier service or United
States mail and shall be deemed to have been given when delivered in person or
by courier service, upon receipt of a telecopy or five days after deposit in the
United States mail (certified, with postage prepaid and properly
addressed).  For the purposes hereof, the addresses of the parties
hereto (until notice of a change thereof is delivered as provided in this Section 10.9) shall
be as set forth below each party’s name on the signature pages hereof, 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.

     

    10.10       Successors and
Assigns.  This Agreement
shall be binding upon and inure to the benefit of each of the parties hereto and
each of the ABL Secured Parties and Notes Secured Parties and their respective
successors and assigns, and nothing herein is intended, or shall be construed to
give, any other Person any right, remedy or claim under, to or in respect of
this Agreement or any Collateral.

     

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

     

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

     

    10.13       Other
Remedies.  For avoidance of doubt, it is understood that
nothing in this Agreement shall prevent any ABL Secured Party or any Notes
Secured Party from exercising any available remedy to accelerate the maturity of
any indebtedness or other obligations owing under the ABL Documents or the Notes
Documents, as applicable, or to demand payment under any guarantee in respect
thereof.

     

    10.14       Counterparts; Integration;
Effectiveness.  This Agreement may be executed in counterparts
(and by different parties hereto on 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 by telecopy or electronic transmission shall be effective
as delivery of a manually executed counterpart of this
Agreement.  This Agreement shall become effective when it shall have
been executed by each party hereto.

     

    10.15       Additional Loan
Parties.  Borrower shall cause each Person that becomes a Loan
Party after the date hereof to become a party to this Agreement by execution and
delivery by such Person of a Joinder Agreement in the form of Annex 1
hereto.

     

    10.16       Force
Majeure.  Other than with respect to obligations that can be
performed by the payment of money, whenever a period of time is herein
prescribed for action to be taken by either the ABL Representative or the
Notes Representative, such Person shall not be liable or responsible for, and
there shall be excluded from the computation of any such period of time, any
delays due to strikes, riots, acts of God, shortages of labor or materials, war
and terrorist acts or activities.

     

    
      
         


      

      
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    10.17       No Consequential
Damages.  Neither the ABL Representative nor the Notes
Representative shall be liable for any indirect, special or consequential
damages (including but not limited to lost profits) whatsoever, even if it has
been informed of the likelihood thereof and regardless of the form of
action.

     

    
      
         


      

      
        31

        
          

        

      

      
         


      

    


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

     

    
      
        
          
            
              
                
                  
                    
                      
                        
                          
                            
                              
                                
                                  
                                    
                                      
                                        
                                          
                                            
                                              
                                                
                                                  
                                                    
                                                      
                                                        
                                                          
                                                            
                                                              
                                                                
                                                                  
                                                                    
                                                                      
                                                                        
                                                                          
                                                                            
                                                                              
                                                                                
                                                                                  
                                                                                    
                                                                                      
                                                                                        
                                                                                          
                                                                                            
                                                                                              
                                                                                                
                                                                                                  
                                                                                                    	 	
                                                                                                            JPMORGAN
      CHASE BANK, N.A., as ABL

                                                                                                            Representative
      for and on behalf of the ABL Secured

                                                                                                            Parties

                                                                                                          
	 	 
      	 
      
	 	
                                                                                                            By:

                                                                                                          	
                                                                                                            /s/
      Mario Quintanilla

                                                                                                          
	 	
                                                                                                            Name:  

                                                                                                          	
                                                                                                            Mario
      Quintanilla

                                                                                                          
	 	
                                                                                                            Title:

                                                                                                          	
                                                                                                            Vice
      President

                                                                                                          
	 	 
      	 
      
	 	
                                                                                                            Address
      for Notices:

                                                                                                          
	 	 
      	 
      
	 	JPMorgan
      Chase Bank, N.A.
	 	2200
      Ross Avenue, 9th
      Floor
	 	MC:
      TX1-2921
	 	
                                                                                                            Attention:

                                                                                                          	Mario
      Quintanilla
	 	
                                                                                                            Telecopy No.:

                                                                                                          	(214)
      965-4731
	 	 
      	 
      
	 	
                                                                                                            U.S.
      BANK NATIONAL ASSOCIATION, as Notes

                                                                                                            Representative
      for and on behalf of the Notes Secured

                                                                                                            Parties

                                                                                                          
	 	 
      	 
      
	 	
                                                                                                            By:

                                                                                                          	
                                                                                                            /s/
      Wally Jones

                                                                                                          
	 	
                                                                                                            Name:  

                                                                                                          	
                                                                                                            Wally
      Jones

                                                                                                          
	 	
                                                                                                            Title:

                                                                                                          	
                                                                                                            Vice
      President

                                                                                                          
	 	 
      	 
      
	 	
                                                                                                            Address
      for Notices:

                                                                                                          
	 	 
      	 
      
	 	150
      Fourth Avenue North, 2nd Floor
	 	Nashville,
      TN 37219
	 	 
        
	 	
                                                                                                            Attention:

                                                                                                          	Corporate
      Trust Services - U.S. Concrete
	 	
                                                                                                            Telecopy No.:

                                                                                                          	(615)
      251-0737


                                                                                                  

                                                                                                

                                                                                              

                                                                                            

                                                                                          

                                                                                        

                                                                                      

                                                                                    

                                                                                  

                                                                                

                                                                              

                                                                            

                                                                          

                                                                        

                                                                      

                                                                    

                                                                  

                                                                

                                                              

                                                            

                                                          

                                                        

                                                      

                                                    

                                                  

                                                

                                              

                                            

                                          

                                        

                                      

                                    

                                  

                                

                              

                            

                          

                        

                      

                    

                  

                

              

            

          

        

      

    

    


    [Signature
Page to Intercreditor Agreement]


    
      
         


      

      
         


        
          

        

      

      
         


      

    

    


    
      
        
          
            	 
      	
                    U.S.
      CONCRETE, INC.

                  
	 	 
	 
      	
                    By:

                  	
                    /s/ Michael W. Harlan

                  
	 
      	
                    Name:

                  	
                    Michael W. Harlan

                  
	 
      	
                    Title:

                  	
                    Chief Executive Officer and
      President

                  
	 
      	 
      	 
      
	 
      	
                    Address
      for Notices for U.S. Concrete, Inc. and all of the 

                    following
      entities:

                  
	 
      	 
      
	 
      	
                    2925
      Briarpark, Suite 1050

                  
	 
      	
                    Houston,
      Texas  77042

                  
	 
      	
                    Attention:  General
      Counsel

                  
	 
      	
                    Telecopy
      No:  (713) 499-6201

                  
	 
      	 
      	 
      
	 
      	
                    ALBERTA
      INVESTMENTS, INC.

                  
	 
      	 
      
	 
      	
                    By:

                  	
                    /s/ Michael W. Harlan

                  
	 
      	
                    Name:

                  	
                    Michael W. Harlan

                  
	 
      	
                    Title:

                  	
                    President

                  
	 
      	 
      	 
      
	 
      	
                    ALLIANCE
      HAULERS, INC.

                  
	 
      	 
      
	 
      	
                    By:

                  	
                    /s/ Michael W. Harlan

                  
	 
      	
                    Name:

                  	
                    Michael W. Harlan

                  
	 
      	
                    Title:

                  	
                    President

                  
	 
      	 
      	 
      
	 
      	
                    AMERICAN
      CONCRETE PRODUCTS, INC.

                  
	 	 
	 
      	
                    By:

                  	
                    /s/ Curt M. Lindeman

                  
	 
      	
                    Name:

                  	
                    Curt M. Lindeman

                  
	 
      	
                    Title:

                  	
                    Vice President and
  Secretary

                  
	 
      	 
      	 
      
	 
      	
                    ATLAS
      REDI-MIX, LLC

                  
	 
      	 
      	 
      
	 
      	
                    By:

                  	
                    /s/ Michael W. Harlan

                  
	 
      	
                    Name:

                  	
                    Michael W. Harlan

                  
	 
      	
                    Title:

                  	
                    President

                  


          

        

      

    

     

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Page to Intercreditor Agreement]


    
      
         


      

      
         


        
          

        

      

      
         


      

    

     

    
      
        	 
      	
                ATLAS-TUCK
      CONCRETE, INC.

              
	 
      	 
      
	 
      	
                By:

              	
                /s/ Michael W. Harlan

              
	 
      	
                Name:

              	
                Michael W. Harlan

              
	 
      	
                Title:

              	
                President

              
	 
      	 
      	 
      
	 
      	
                BWB,
      INC. OF MICHIGAN

              
	 
      	 
      
	 
      	
                By:

              	
                /s/ Curt M. Lindeman

              
	 
      	
                Name:

              	
                Curt M. Lindeman

              
	 
      	
                Title:

              	
                Vice President and
  Secretary

              
	 
      	 
      	 
      
	 
      	
                BEALL
      CONCRETE ENTERPRISES, LLC

              
	 
      	 
      	 
      
	 
      	
                By:

              	
                /s/ Michael W. Harlan

              
	 
      	
                Name:

              	
                Michael W. Harlan

              
	 
      	
                Title:

              	
                President

              
	 
      	 
      	 
      
	 
      	
                BEALL
      INVESTMENT CORPORATION, INC.

              
	 
      	 
      	 
      
	 
      	
                By:

              	
                /s/ Michael W. Harlan

              
	 
      	
                Name:

              	
                Michael W. Harlan

              
	 
      	
                Title:

              	
                President

              
	 
      	 
      	 
      
	 
      	
                BEALL
      INDUSTRIES, INC.

              
	 
      	 
      	 
      
	 
      	
                By:

              	
                /s/ Michael W. Harlan

              
	 
      	
                Name:

              	
                Michael W. Harlan

              
	 
      	
                Title:

              	
                President

              
	 
      	 
      	 
      
	 
      	
                BEALL
      MANAGEMENT, INC.

              
	 
      	 
      	 
      
	 
      	
                By:

              	
                /s/ Michael W. Harlan

              
	 
      	
                Name:

              	
                Michael W. Harlan

              
	 
      	
                Title:

              	
                President

              


      

    

     

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Page to Intercreditor Agreement]


    
      
         


      

      
         


        
          

        

      

      
         


      

    

     

    
      
        	 
      	
                BRECKENRIDGE
      READY MIX, INC.

              
	 
      	 
      	 
      
	 
      	
                By:

              	
                /s/ Curt M. Lindeman

              
	 
      	
                Name:

              	
                Curt M. Lindeman

              
	 
      	
                Title:

              	
                Vice President and
  Secretary

              
	 
      	 
      	 
      
	 
      	
                BUILDERS’
      REDI-MIX LLC

              
	 
      	 
      	 
      
	 
      	
                By:

              	
                /s/ Curt M. Lindeman

              
	 
      	
                Name:

              	
                Curt M. Lindeman

              
	 
      	
                Title:

              	
                Vice President and
  Secretary

              
	 
      	 
      	 
      
	 
      	
                CENTRAL
      CONCRETE SUPPLY CO., INC.

              
	 
      	 
      	 
      
	 
      	
                By:

              	
                /s/ Curt M. Lindeman

              
	 
      	
                Name:

              	
                Curt M. Lindeman

              
	 
      	
                Title:

              	
                Vice President and
  Secretary

              
	 
      	 
      	 
      
	 
      	
                CENTRAL
      PRECAST CONCRETE, INC.

              
	 
      	 
      	 
      
	 
      	
                By:

              	
                /s/ Curt M. Lindeman

              
	 
      	
                Name:

              	
                Curt M. Lindeman

              
	 
      	
                Title:

              	
                Vice President and
  Secretary

              
	 
      	 
      	 
      
	 
      	
                CONCRETE
      ACQUISITION III, LLC

              
	 
      	 
      	 
      
	 
      	
                By:

              	
                /s/ Curt M. Lindeman

              
	 
      	
                Name:

              	
                Curt M. Lindeman

              
	 
      	
                Title:

              	
                President

              


      

    

    


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Page to Intercreditor Agreement]


    
      
         


      

      
         


        
          

        

      

      
         


      

    

     

    
      
        	 
      	
                CONCRETE
      ACQUISITION IV, LLC

              
	 
      	 
      	 
      
	 
      	
                By:

              	
                /s/ Curt M. Lindeman

              
	 
      	
                Name:

              	
                Curt M. Lindeman

              
	 
      	
                Title:

              	
                President

              
	 
      	 
      	 
      
	 
      	
                CONCRETE
      ACQUISITION V, LLC

              
	 
      	 
      	 
      
	 
      	
                By:

              	
                /s/ Curt M. Lindeman

              
	 
      	
                Name:

              	
                Curt M. Lindeman

              
	 
      	
                Title:

              	
                President

              
	 
      	 
      	 
      
	 
      	
                CONCRETE
      ACQUISITION VI, LLC

              
	 
      	 
      	 
      
	 
      	
                By:

              	
                /s/ Curt M. Lindeman

              
	 
      	
                Name:

              	
                Curt M. Lindeman

              
	 
      	
                Title:

              	
                President

              
	 
      	 
      	 
      
	 
      	
                CONCRETE
      XXXIII ACQUISITION, INC.

              
	 
      	 
      	 
      
	 
      	
                By:

              	
                /s/ Curt M. Lindeman

              
	 
      	
                Name:

              	
                Curt M. Lindeman

              
	 
      	
                Title:

              	
                President

              
	 
      	 
      	 
      
	 
      	
                CONCRETE
      XXXIV ACQUISITION, INC.

              
	 
      	 
      	 
      
	 
      	
                By:

              	
                /s/ Curt M. Lindeman

              
	 
      	
                Name:

              	
                Curt M. Lindeman

              
	 
      	
                Title:

              	
                President

              
	 
      	 
      	 
      
	 
      	
                CONCRETE
      XXXV ACQUISITION, INC.

              
	 
      	 
      	 
      
	 
      	
                By:

              	
                /s/ Curt M. Lindeman

              
	 
      	
                Name:

              	
                Curt M. Lindeman

              
	 
      	
                Title:

              	
                President

              


      

    

    


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Page to Intercreditor Agreement]


    
      
         


      

      
         


        
          

        

      

      
         


      

    

     

    
      
        
          	 
      	
                  CONCRETE
      XXXVI ACQUISITION, INC.

                
	 
      	 
      	 
      
	 
      	
                  By:

                	
                  /s/ Curt M. Lindeman

                
	 
      	
                  Name:

                	
                  Curt M. Lindeman

                
	 
      	
                  Title:

                	
                  President

                
	 
      	 
      	 
      
	 
      	
                  EASTERN
      CONCRETE MATERIALS, INC.

                
	 
      	 
      	 
      
	 
      	
                  By:

                	
                  /s/ Michael W. Harlan

                
	 
      	
                  Name:

                	
                  Michael W. Harlan

                
	 
      	
                  Title:

                	
                  President and Secretary

                
	 
      	 
      	 
      
	 
      	
                  HAMBURG
      QUARRY LIMITED LIABILITY COMPANY

                
	 
      	 
      	 
      
	 
      	
                  By:

                	
                  /s/ Michael W. Harlan

                
	 
      	
                  Name:

                	
                  Michael W. Harlan

                
	 
      	
                  Title:

                	
                  President

                
	 
      	 
      	 
      
	 
      	
                  INGRAM
      CONCRETE, LLC

                
	 	 
	 
      	
                  By:

                	
                  /s/ Curt M. Lindeman

                
	 
      	
                  Name:

                	
                  Curt M. Lindeman

                
	 
      	
                  Title:

                	
                  Vice President and
  Secretary

                
	 
      	 
      	 
      
	 
      	
                  KURTZ
      GRAVEL COMPANY

                
	 
      	 
      	 
      
	 
      	
                  By:

                	
                  /s/ Michael W. Harlan

                
	 
      	
                  Name:

                	
                  Michael W. Harlan

                
	 
      	
                  Title:

                	
                  Vice President and
  Secretary

                


        

      

    

    


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Page to Intercreditor Agreement]


    
      
         


      

      
         


        
          

        

      

      
         


      

    

     

    
      
        
          	 
      	
                  LOCAL
      CONCRETE SUPPLY & EQUIPMENT, LLC

                
	 
      	 
      	 
      
	 
      	
                  By:

                	
                  /s/ Curt M. Lindeman

                
	 
      	
                  Name:

                	
                  Curt M. Lindeman

                
	 
      	
                  Title:

                	
                  President and Secretary

                
	 
      	 
      	 
      
	 
      	
                  MASTER
      MIX, LLC

                
	 
      	 
      	 
      
	 
      	
                  By:

                	
                  /s/ Curt M. Lindeman

                
	 
      	
                  Name:

                	
                  Curt M. Lindeman

                
	 
      	
                  Title:

                	
                  President and Secretary

                
	 
      	 
      	 
      
	 
      	
                  MASTER
      MIX CONCRETE, LLC

                
	 
      	 
      	 
      
	 
      	
                  By:

                	
                  /s/ Curt M. Lindeman

                
	 
      	
                  Name:

                	
                  Curt M. Lindeman

                
	 
      	
                  Title:

                	
                  President and Secretary

                
	 
      	 
      	 
      
	 
      	
                  MG,
      LLC

                
	 
      	 
      	 
      
	 
      	
                  By:

                	
                  /s/ Curt M. Lindeman

                
	 
      	
                  Name:

                	
                  Curt M. Lindeman

                
	 
      	
                  Title:

                	
                  Vice President and
  Secretary

                
	 
      	 
      	 
      
	 
      	
                  NYC
      CONCRETE MATERIALS, LLC

                
	 
      	 
      	 
      
	 
      	
                  By:

                	
                  /s/ Curt M. Lindeman

                
	 
      	
                  Name:

                	
                  Curt M. Lindeman

                
	 
      	
                  Title:

                	
                  President and Secretary

                
	 
      	 
      	 
      
	 
      	
                  PEBBLE
      LANE ASSOCIATES, LLC

                
	 	 
	 
      	
                  By:

                	
                  /s/ Curt M. Lindeman

                
	 
      	
                  Name:

                	
                  Curt M. Lindeman

                
	 
      	
                  Title:

                	
                  President and
  Secretary

                


        

      

    

    


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Page to Intercreditor Agreement]


    
      
         


      

      
         


        
          

        

      

      
         


      

    

    


    
      
        	 
      	
                REDI-MIX
      CONCRETE, L.P.

              
	 
      	 
      	 
      
	 
      	
                By:

              	
                /s/ Michael W. Harlan

              
	 
      	
                Name:

              	
                Michael W. Harlan

              
	 
      	
                Title:

              	
                President

              
	 
      	 
      	 
      
	 
      	
                REDI-MIX
      GP, LLC

              
	 
      	 
      	 
      
	 
      	
                By:

              	
                /s/ Michael W. Harlan

              
	 
      	
                Name:

              	
                Michael W. Harlan

              
	 
      	
                Title:

              	
                President

              
	 
      	 
      	 
      
	 
      	
                REDI-MIX,
      LLC

              
	 
      	 
      	 
      
	 
      	
                By:

              	
                /s/ Michael W. Harlan

              
	 
      	
                Name:

              	
                Michael W. Harlan

              
	 
      	
                Title:

              	
                President

              
	 
      	 
      	 
      
	 
      	
                RIVERSIDE
      MATERIALS, LLC

              
	 
      	 
      	 
      
	 
      	
                By:

              	
                /s/ Wallace H. Johnson

              
	 
      	
                Name:

              	
                Wallace H. Johnson

              
	 
      	
                Title:

              	
                President and Secretary

              
	 
      	 
      	 
      
	 
      	
                SAN
      DIEGO PRECAST CONCRETE, INC.

              
	 
      	 
      	 
      
	 
      	
                By:

              	
                /s/ Curt M. Lindeman

              
	 
      	
                Name:

              	
                Curt M. Lindeman

              
	 
      	
                Title:

              	
                Vice President and
  Secretary

              


      

    

    


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Page to Intercreditor Agreement]


    
      
         


      

      
         


        
          

        

      

      
         


      

    

     

    
      
        
          
            
              
                
                  
                    
                      
                        
                          
                            
                              
                                
                                  
                                    
                                      
                                        	 
      	
                                                SIERRA
      PRECAST, INC.

                                              
	 
      	 
      	 
      
	 
      	
                                                By:

                                              	
                                                /s/ Curt M. Lindeman

                                              
	 
      	
                                                Name:

                                              	
                                                Curt M. Lindeman

                                              
	 
      	
                                                Title:

                                              	
                                                Vice President and
  Secretary

                                              
	 
      	 
      	 
      
	 
      	
                                                SMITH
      PRE-CAST, INC.

                                              
	 
      	 
      	 
      
	 
      	
                                                By:

                                              	
                                                /s/ Curt M. Lindeman

                                              
	 
      	
                                                Name:

                                              	
                                                Curt M. Lindeman

                                              
	 
      	
                                                Title:

                                              	
                                                Vice President and
  Secretary

                                              
	 
      	 
      	 
      
	 
      	
                                                SUPERIOR
      CONCRETE MATERIALS, INC.

                                              
	 
      	 
      	 
      
	 
      	
                                                By:

                                              	
                                                /s/ Curt M. Lindeman

                                              
	 
      	
                                                Name:

                                              	
                                                Curt M. Lindeman

                                              
	 
      	
                                                Title:

                                              	
                                                Vice President and
  Secretary

                                              
	 
      	 
      	 
      
	 	SUPERIOR
      HOLDINGS, INC.
	 	 	 
	 	By:	/s/
      Michael W. Harlan
	 	Name:	Michael
      W. Harlan
	 	Title:	

                                                Vice President and
  Secretary

                                              
	 	 	 
	 
      	
                                                TITAN
      CONCRETE INDUSTRIES, INC.

                                              
	 
      	 
      	 
      
	 
      	
                                                By:

                                              	
                                                /s/ Michael W. Harlan

                                              
	 
      	
                                                Name:

                                              	
                                                Michael W. Harlan

                                              
	 
      	
                                                Title:

                                              	
                                                Vice President and
  Secretary

                                              
	 
      	 
      	 
      
	 
      	
                                                USC
      ATLANTIC, INC.

                                              
	 
      	 
      	 
      
	 
      	
                                                By:

                                              	
                                                /s/ Michael W. Harlan

                                              
	 
      	
                                                Name:

                                              	
                                                Michael W. Harlan

                                              
	 
      	
                                                Title:

                                              	
                                                Vice President and
  Secretary

                                              
	 
      	 
      	 
      
	 
      	
                                                USC
      MANAGEMENT CO., LLC

                                              
	 
      	 
      	 
      
	 
      	
                                                By:

                                              	
                                                /s/ Curt M. Lindeman

                                              
	 
      	
                                                Name:

                                              	
                                                Curt M. Lindeman

                                              
	 
      	
                                                Title:

                                              	
                                                Vice President and
  Secretary

                                              


                                      

                                    

                                  

                                

                              

                            

                          

                        

                      

                    

                  

                

              

            

          

        

      

    

    


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                USC
      MICHIGAN, INC.

              
	 
      	 
      	 
      
	 
      	
                By:

              	
                /s/ Michael W. Harlan

              
	 
      	
                Name:

              	
                Michael W. Harlan

              
	 
      	
                Title:

              	
                Vice President and
  Secretary

              
	 
      	 
      	 
      
	 
      	
                USC
      PAYROLL, INC.

              
	 
      	 
      	 
      
	 
      	
                By:

              	
                /s/ Curt M. Lindeman

              
	 
      	
                Name:

              	
                Curt M. Lindeman

              
	 
      	
                Title:

              	
                Vice President and
  Secretary

              
	 
      	 
      	 
      
	 
      	
                USC
      TECHNOLOGIES, INC.

              
	 
      	 
      	 
      
	 
      	
                By:

              	
                /s/ Curt M. Lindeman

              
	 
      	
                Name:

              	
                Curt M. Lindeman

              
	 
      	
                Title:

              	
                Vice President and
  Secretary

              
	 
      	 
      	 
      
	 
      	
                U.S.
      CONCRETE ON-SITE, INC.

              
	 
      	 
      	 
      
	 
      	
                By:

              	
                /s/ Curt M. Lindeman

              
	 
      	
                Name:

              	
                Curt M. Lindeman

              
	 
      	
                Title:

              	
                Vice President and
  Secretary

              


      

    

    


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    ANNEX
1


     

    JOINDER
AGREEMENT

     

    THIS
JOINDER AGREEMENT (this “Agreement”), dated as
of _______________ __, 20__, is executed by ______________________________, a
____________________ (the “New Subsidiary”) in
favor of JPMORGAN CHASE BANK, N.A. (“ABL Representative”)
and U.S. BANK NATIONAL ASSOCIATION (“Notes
Representative”), in their capacities as ABL Representative and Notes
Representative, respectively, under that certain Intercreditor Agreement (the
“Intercreditor
Agreement”), dated as of August __, 2010 among the ABL Representative,
the Notes Representative, U.S Concrete, Inc. and each of the other Loan Parties
party thereto.  All capitalized terms used herein and not otherwise
defined shall have the meanings set forth in the Intercreditor
Agreement.

     

    The New
Subsidiary, for the benefit of the ABL Representative and the Notes
Representative, hereby agrees as follows:

     

    1.           The
New Subsidiary hereby acknowledges the Intercreditor Agreement and acknowledges,
agrees and confirms that, by its execution of this Agreement, the New Subsidiary
will be deemed to be a Loan Party under the Intercreditor Agreement and shall
have all of the obligations of a Loan Party thereunder as if it had executed the
Intercreditor Agreement.  The New Subsidiary hereby ratifies, as of
the date hereof, and agrees to be bound by, all of the terms, provisions and
conditions contained in the Intercreditor Agreement.

     

    2.           The
address of the New Subsidiary for purposes of 10.09 of the Intercreditor
Agreement is as follows:

     

    
      
        
          
            
              
                	 
      	
                          

                      	 
      
	 
      	
                         
        

                      	 
      
	 
      	
                         
        

                      	 
      
	 
      	
                         
        

                      	 
      


              

            

          

        

      

    

     

    3.           THIS
AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE NEW SUBSIDIARY HEREUNDER SHALL
BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK.

     

    
      
         


      

      
        Annex 1 -
1

        
          

        

      

      
         


      

    


    IN
WITNESS WHEREOF, the New Subsidiary has caused this Agreement to be duly
executed by its authorized officer, as of the day and year first above
written.

     

    
      
        
          
            
              
                
                  	 	
                          [NEW
      SUBSIDIARY]

                        
	 	 
      	 
      
	 	
                          By:

                        	 
          
	 	
                          Name:

                        	   
        
	 	
                          Title:

                        	 
       



                

              

            

          

        

      

    

     

    
      
         


      

      
        Annex 1 -
2