Unassociated Document


    Exhibit
10.1

    
      	
                

            
	
               

              

               

              CREDIT
      AGREEMENT

               

              dated
      as of

               

              August
      31, 2010

               

              among

               

              U.S.
      CONCRETE, INC.

               

              The
      Lenders Party Hereto

               

              and

               

              JPMORGAN
      CHASE BANK, N.A.,

              as
      Administrative Agent

               

              J.P.
      MORGAN SECURITIES INC.,

              as
      Sole Bookrunner and Lead Arranger

               

              WELLS
      FARGO CAPITAL FINANCE, LLC,

              as
      Documentation Agent and Lead Arranger

               

              CHASE
      BUSINESS CREDIT

                

            


    


    
      
         


      

      
         


        
          

        

      

      
         


      

    


    TABLE OF
CONTENTS

     

    
      
        	 
      	 
      	
                Page

              
	 
      
	
                Article
      I

              
	 
      
	
                Definitions

              
	 
      	 
      	 
      
	
                Section 1.01

              	
                Defined
      Terms

              	
                1

              
	
                Section 1.02

              	
                Classification
      of Loans and Borrowings

              	
                33

              
	
                Section 1.03

              	
                Terms
      Generally

              	
                33

              
	
                Section 1.04

              	
                Accounting
      Terms; GAAP

              	
                33

              
	
                Section 1.05

              	
                Times
      of Day 

              	
                34

              
	
                Section 1.06

              	
                Timing
      of Payment of Performance

              	
                34

              
	
                Section 1.07

              	
                Certifications

              	
                34

              
	 
      
	
                Article II

              
	 
      
	
                The Credits

              
	 
      	 
      	 
      
	
                Section 2.01

              	
                Commitments

              	
                34

              
	
                Section 2.02

              	
                Loans
      and Borrowings

              	
                34

              
	
                Section 2.03

              	
                Requests
      for Revolving Borrowings

              	
                35

              
	
                Section 2.04

              	
                Protective
      Advances

              	
                36

              
	
                Section 2.05

              	
                Swingline
      Loans and Overadvances

              	
                36

              
	
                Section 2.06

              	
                Letters
      of Credit.

              	
                38

              
	
                Section 2.07

              	
                Funding
      of Borrowings

              	
                43

              
	
                Section 2.08

              	
                Interest
      Elections

              	
                43

              
	
                Section 2.09

              	
                Termination
      and Reduction of Commitments

              	
                44

              
	
                Section 2.10

              	
                Repayment
      of Loans; Evidence of Debt

              	
                45

              
	
                Section 2.11

              	
                Prepayment
      of Loans

              	
                46

              
	
                Section 2.12

              	
                Fees

              	
                47

              
	
                Section 2.13

              	
                Interest

              	
                48

              
	
                Section 2.14

              	
                Alternate
      Rate of Interest

              	
                49

              
	
                Section 2.15

              	
                Increased
      Costs

              	
                49

              
	
                Section 2.16

              	
                Break
      Funding Payments

              	
                50

              
	
                Section 2.17

              	
                Taxes

              	
                51

              
	
                Section 2.18

              	
                Payments
      Generally; Allocation of Proceeds; Sharing of Set-offs

              	
                53

              
	
                Section 2.19

              	
                Mitigation
      Obligations; Replacement of Lenders

              	
                55

              
	
                Section 2.20

              	
                Defaulting
      Lenders

              	
                56

              
	
                Section 2.21

              	
                Returned
      Payments

              	
                58

              
	 
      
	
                Article III

              
	 
      
	
                Representations and Warranties

              
	 
      	 
      	 
      
	
                Section 3.01

              	
                Organization;
      Powers

              	
                58

              


      

    


    
      
         


      

      
        i

        
          

        

      

      
         


      

    

    


    
      
        	
                Section 3.02

              	
                Authorization;
      Enforceability

              	
                58

              
	
                Section 3.03

              	
                Governmental
      Approvals; No Conflicts

              	
                58

              
	
                Section 3.04

              	
                Financial
      Condition; No Material Adverse Change

              	
                58

              
	
                Section 3.05

              	
                Properties

              	
                59

              
	
                Section 3.06

              	
                Litigation
      and Environmental Matters

              	
                59

              
	
                Section 3.07

              	
                Compliance
      with Laws and Agreements

              	
                60

              
	
                Section 3.08

              	
                Investment
      Company Status

              	
                60

              
	
                Section 3.09

              	
                Taxes

              	
                60

              
	
                Section 3.10

              	
                ERISA

              	
                60

              
	
                Section 3.11

              	
                Disclosure

              	
                61

              
	
                Section 3.12

              	
                Material
      Agreements

              	
                61

              
	
                Section 3.13

              	
                Solvency

              	
                61

              
	
                Section 3.14

              	
                Insurance

              	
                62

              
	
                Section 3.15

              	
                Capitalization
      and Subsidiaries

              	
                62

              
	
                Section 3.16

              	
                Security
      Interest in Collateral

              	
                62

              
	
                Section 3.17

              	
                Employment
      Matters

              	
                62

              
	
                Section 3.18

              	
                Common
      Enterprise

              	
                63

              
	
                Section 3.19

              	
                Margin
      Regulations

              	
                63

              
	 
      
	
                Article IV

              
	 
      
	
                Conditions

              
	 
      	 
      	 
      
	
                Section 4.01

              	
                Effective
      Date

              	
                63

              
	
                Section 4.02

              	
                Each
      Credit Event

              	
                67

              
	
                Section 4.03

              	
                Determinations
      Under Sections 4.01 and 4.02

              	
                68

              
	
                Section 4.04

              	
                Post-Closing
      Conditions

              	
                68

              
	 
      
	
                Article V

              
	 
      
	
                Affirmative Covenants

              
	 
      	 
      	 
      
	
                Section 5.01

              	
                Financial
      Statements; Borrowing Base and Other Information

              	
                69

              
	
                Section 5.02

              	
                Notices
      of Material Events

              	
                73

              
	
                Section 5.03

              	
                Existence;
      Conduct of Business

              	
                74

              
	
                Section 5.04

              	
                Payment
      of Obligations

              	
                74

              
	
                Section 5.05

              	
                Maintenance
      of Properties

              	
                74

              
	
                Section 5.06

              	
                Books
      and Records; Inspection Rights

              	
                75

              
	
                Section 5.07

              	
                Compliance
      with Laws

              	
                75

              
	
                Section 5.08

              	
                Use
      of Proceeds

              	
                75

              
	
                Section 5.09

              	
                Insurance

              	
                75

              
	
                Section 5.10

              	
                Casualty
      and Condemnation

              	
                76

              
	
                Section 5.11

              	
                Appraisals

              	
                76

              
	
                Section 5.12

              	
                Depository
      Banks

              	
                76

              
	
                Section 5.13

              	
                Additional
      Collateral; Further Assurances

              	
                76

              
	
                Section 5.14

              	
                Field
      Examinations

              	
                77

              


      

    


    
      
         


      

      
        ii

        
          

        

      

      
         


      

    

    


    
      
        
          
            
              	
                      Article VI

                    
	 
      
	
                      Negative Covenants

                    
	 
      	 
      	 
      
	
                      Section 6.01

                    	
                      Indebtedness

                    	
                      78

                    
	
                      Section 6.02

                    	
                      Liens

                    	
                      80

                    
	
                      Section 6.03

                    	
                      Fundamental
      Changes

                    	
                      82

                    
	
                      Section 6.04

                    	
                      Investments,
      Loans, Advances, Guarantees and Acquisitions

                    	
                      82

                    
	
                      Section 6.05

                    	
                      Asset
      Sales

                    	
                      84

                    
	
                      Section 6.06

                    	
                      Sale
      and Leaseback Transactions

                    	
                      85

                    
	
                      Section 6.07

                    	
                      Swap
      Agreements

                    	
                      85

                    
	
                      Section 6.08

                    	
                      Restricted
      Payments; Certain Payments of Indebtedness

                    	
                      86

                    
	
                      Section 6.09

                    	
                      Transactions
      with Affiliates

                    	
                      87

                    
	
                      Section 6.10

                    	
                      Restrictive
      Agreements

                    	
                      87

                    
	
                      Section 6.11

                    	
                      Amendment
      of Material Documents

                    	
                      88

                    
	
                      Section 6.12

                    	
                      Capital
      Expenditures

                    	
                      88

                    
	
                      Section 6.13

                    	
                      Fixed
      Charge Coverage Ratio

                    	
                      88

                    
	
                      Section 6.14

                    	
                      End
      of Fiscal Year and Fiscal Quarters

                    	
                      89

                    
	 
      
	
                      Article VII

                    
	 
      
	
                      Events of Default

                    
	 
	
                      Article VIII

                    
	 
      
	
                      The Administrative Agent

                    
	 
	
                      Article IX

                    
	 
      
	
                      Miscellaneous

                    
	 
      	 
      	 
      
	
                      Section 9.01

                    	
                      Notices

                    	
                      95

                    
	
                      Section 9.02

                    	
                      Waivers;
      Amendments

                    	
                      96

                    
	
                      Section 9.03

                    	
                      Expenses;
      Indemnity; Damage Waiver

                    	
                      98

                    
	
                      Section 9.04

                    	
                      Successors
      and Assigns

                    	
                      100

                    
	
                      Section 9.05

                    	
                      Survival

                    	
                      104

                    
	
                      Section 9.06

                    	
                      Counterparts;
      Integration; Effectiveness

                    	
                      104

                    
	
                      Section 9.07

                    	
                      Severability

                    	
                      104

                    
	
                      Section 9.08

                    	
                      Right
      of Setoff

                    	
                      104

                    
	
                      Section 9.09

                    	
                      Governing
      Law; Jurisdiction; Consent to Service of Process

                    	
                      105

                    
	
                      Section 9.10

                    	
                      WAIVER
      OF JURY TRIAL

                    	
                      106

                    
	
                      Section 9.11

                    	
                      Headings

                    	
                      106

                    
	
                      Section 9.12

                    	
                      Confidentiality

                    	
                      106

                    
	
                      Section 9.13

                    	
                      Several
      Obligations; Nonreliance; Violation of Law

                    	
                      107

                    
	
                      Section 9.14

                    	
                      USA
      PATRIOT Act

                    	
                      107

                    
	
                      Section 9.15

                    	
                      Disclosure

                    	
                      108

                    
	
                      Section 9.16

                    	
                      Appointment
      for Perfection

                    	
                      108

                    


            

          

        

      

    


    
      
         


      

      
        iii

        
          

        

      

      
         


      

    

    


    
      
        	
                Section 9.17

              	
                Interest
      Rate Limitation

              	
                108

              
	
                Section 9.18

              	
                Intercreditor
      Agreement

              	
                108

              
	 
      
	
                Article X

              
	 
      
	
                Loan Guaranty

              
	 
      	 
      	 
      
	
                Section 10.01

              	
                Guaranty

              	
                109

              
	
                Section 10.02

              	
                Guaranty
      of Payment

              	
                109

              
	
                Section 10.03

              	
                No
      Discharge or Diminishment of Loan Guaranty

              	
                109

              
	
                Section 10.04

              	
                Defenses
      Waived

              	
                110

              
	
                Section 10.05

              	
                Rights
      of Subrogation

              	
                110

              
	
                Section 10.06

              	
                Reinstatement;
      Stay of Acceleration

              	
                110

              
	
                Section 10.07

              	
                Information

              	
                111

              
	
                Section 10.08

              	
                Termination

              	
                111

              
	
                Section 10.09

              	
                Taxes

              	
                111

              
	
                Section 10.10

              	
                Maximum
      Liability

              	
                111

              
	
                Section 10.11

              	
                Contribution

              	
                112

              
	
                Section 10.12

              	
                Liability
      Cumulative

              	
                112

              


      

    

     

    SCHEDULES:

    


    Commitment
Schedule

    
      	
              Schedule 2.06

            	
              —

            	
              Existing
      Letters of Credit

            
	
              Schedule 3.05

            	
              —

            	
              Properties

            
	
              Schedule 3.06

            	
              —

            	
              Disclosed
      Matters

            
	
              Schedule 3.09

            	
              —

            	
              Taxes

            
	
              Schedule 3.10

            	
              —

            	
              ERISA

            
	
              Schedule 3.12

            	
              —

            	
              Material
      Agreements

            
	
              Schedule 3.14

            	
              —

            	
              Insurance

            
	
              Schedule 3.15

            	
              —

            	
              Capitalization
      and Subsidiaries

            
	
              Schedule 3.17

            	
              —

            	
              Employment
      Matters

            
	
              Schedule 6.01

            	
              —

            	
              Existing
      Indebtedness

            
	
              Schedule 6.02

            	
              —

            	
              Existing
      Liens

            
	
              Schedule 6.05

            	
              —

            	
              Asset
      Sales

            
	
              Schedule 6.04

            	
              —

            	
              Existing
      Investments

            
	
              Schedule 6.09

            	
              —

            	
              Transactions
      with Affiliates

            
	
              Schedule 6.10

            	
              —

            	
              Existing
      Restrictions

            


    


    
      
         


      

      
        iv

        
          

        

      

      
         


      

    

     

    EXHIBITS:

     

    
      	
              Exhibit
      A

            	
              —

            	
              Form
      of Assignment and Assumption

            
	
              Exhibit
      B

            	
              —

            	
              [Reserved.]

            
	
              Exhibit
      C

            	
              —

            	
              Form
      of Borrowing Base Certificate

            
	
              Exhibit
      D

            	
              —

            	
              Form
      of Compliance Certificate

            
	
              Exhibit
      E

            	
              —

            	
              Joinder
      Agreement

            


    


    
      
         


      

      
        v

        
          

        

      

      
         


      

    


    DEFINITIONS

     

    
      
        	 
      	
                Page

              
	 
      	 
      
	
                Account

              	
                1

              
	
                Account
      Debtor

              	
                1

              
	
                Acquisition

              	
                1

              
	
                Act

              	
                107

              
	
                Adjusted
      LIBO Rate

              	
                1

              
	
                Adjusted
      One Month LIBOR Rate

              	
                1

              
	
                Administrative
      Agent

              	
                1

              
	
                Administrative
      Questionnaire

              	
                1

              
	
                Affiliate

              	
                2

              
	
                Aggregate
      Credit Exposure

              	
                2

              
	
                Aggregates

              	
                2

              
	
                Agreement

              	
                1

              
	
                Applicable
      Margin

              	
                2

              
	
                Applicable
      Percentage

              	
                2

              
	
                Applicable
      Unused Commitment Fee
      Rate

              	
                2

              
	
                Appraisal

              	
                2

              
	
                Approved
      Fund

              	
                2

              
	
                Assignment
      and Assumption

              	
                2

              
	
                Auto-Extension
      Letter of Credit

              	
                42

              
	
                Availability

              	
                2

              
	
                Availability
      Block

              	
                2

              
	
                Availability
      Period

              	
                3

              
	
                Available
      Revolving Commitment

              	
                3

              
	
                Banking
      Services

              	
                3

              
	
                Banking
      Services Obligations

              	
                3

              
	
                Banking
      Services Reserves

              	
                3

              
	
                Board

              	
                3

              
	
                Borrower

              	
                3

              
	
                Borrowing

              	
                3

              
	
                Borrowing
      Base

              	
                3

              
	
                Borrowing
      Base Certificate

              	
                4

              
	
                Borrowing
      Base Collateral

              	
                4

              
	
                Borrowing
      Base Contributors

              	
                4

              
	
                Borrowing
      Request

              	
                4

              
	
                Business
      Day

              	
                4

              
	
                Capital
      Expenditures

              	
                4

              
	
                Capital
      Lease

              	
                4

              
	
                Capital
      Lease Obligations

              	
                5

              
	
                CB
      Floating Rate

              	
                5

              
	
                CBFR

              	
                5

              
	
                Change
      in Control

              	
                5

              
	
                Change
      in Law

              	
                5

              


      

    


    
      
         


      

      
        vi

        
          

        

      

      
         


      

    

    


    
      
        	
                Charges

              	
                108

              
	
                Chase

              	
                5

              
	
                Class

              	
                5

              
	
                Code

              	
                6

              
	
                Collateral

              	
                6

              
	
                Collateral
      Access Agreement

              	
                6

              
	
                Collateral
      Documents

              	
                6

              
	
                Collection
      Account

              	
                6

              
	
                Commercial
      LC Exposure

              	
                6

              
	
                Commitment

              	
                6

              
	
                Commitment
      Schedule

              	
                6

              
	
                Consolidated
      Net Tangible Assets

              	
                6

              
	
                Control

              	
                6

              
	
                Controlled

              	
                6

              
	
                Controlled
      Disbursement Account

              	
                6

              
	
                Controlling

              	
                6

              
	
                Credit
      Exposure

              	
                7

              
	
                Customary
      Permitted Liens

              	
                7

              
	
                Default

              	
                8

              
	
                Defaulting
      Lender

              	
                8

              
	
                Deposit
      Account

              	
                8

              
	
                Depreciation
      Amount

              	
                8

              
	
                DIP
      Credit Agreement

              	
                9

              
	
                Disclosed
      Matters

              	
                9

              
	
                Document

              	
                9

              
	
                dollars

              	
                9

              
	
                EBITDA

              	
                9

              
	
                Effective
      Date

              	
                9

              
	
                Eligible
      Accounts

              	
                9

              
	
                Eligible
      Aggregates Inventory

              	
                13

              
	
                Eligible
      Inventory

              	
                13

              
	
                Eligible
      Trucks

              	
                14

              
	
                Environmental
      Laws

              	
                14

              
	
                Environmental
      Liability

              	
                14

              
	
                Equity
      Interests

              	
                14

              
	
                Equity
      Issuance

              	
                15

              
	
                ERISA

              	
                15

              
	
                ERISA
      Affiliate

              	
                15

              
	
                ERISA
      Event

              	
                15

              
	
                Eurodollar

              	
                15

              
	
                Event
      of Default

              	
                15

              
	
                Events
      of Default

              	
                89

              
	
                Exchange
      Act

              	
                5

              
	
                Excluded
      Collateral

              	
                15

              
	
                Excluded
      Issuances

              	
                15

              
	
                Excluded
      Joint Venture

              	
                16

              


      

    


    
      
         


      

      
        vii

        
          

        

      

      
         


      

    

    


    
      
        	
                Excluded
      JV Assets

              	
                16

              
	
                Excluded
      JV Equity

              	
                16

              
	
                Excluded
      Taxes

              	
                16

              
	
                Existing
      Letters of Credit

              	
                16

              
	
                FATCA

              	
                16

              
	
                FCRR
      Test

              	
                16

              
	
                Federal
      Funds Effective Rate

              	
                16

              
	
                Financial
      Officer

              	
                16

              
	
                Fixed
      Charge Coverage Ratio

              	
                17

              
	
                Fixed
      Charges

              	
                17

              
	
                Foreign
      Lender

              	
                17

              
	
                Foreign
      Payee

              	
                17

              
	
                Foreign
      Subsidiary

              	
                17

              
	
                Funding
      Account

              	
                17

              
	
                GAAP

              	
                17

              
	
                Governmental
      Authority

              	
                17

              
	
                Guarantee

              	
                17

              
	
                Guaranteed
      Obligations

              	
                18

              
	
                guarantor

              	
                18

              
	
                Hazardous
      Materials

              	
                18

              
	
                Indebtedness

              	
                18

              
	
                Indemnified
      Taxes

              	
                18

              
	
                Indemnitee

              	
                100

              
	
                Information

              	
                106

              
	
                Initial
      Availability Block Period

              	
                19

              
	
                Intercreditor
      Agreement

              	
                19

              
	
                Interest
      Election Request

              	
                19

              
	
                Interest
      Expense

              	
                19

              
	
                Interest
      Payment Date

              	
                19

              
	
                Interest
      Period

              	
                19

              
	
                Inventory

              	
                19

              
	
                Investment

              	
                19

              
	
                Issuing
      Bank

              	
                19

              
	
                Joinder
      Agreement

              	
                19

              
	
                Land

              	
                20

              
	
                LC
      Collateral Account

              	
                42

              
	
                LC
      Disbursement

              	
                20

              
	
                LC
      Exposure

              	
                20

              
	
                Lead
      Arrangers

              	
                20

              
	
                Lenders

              	
                20

              
	
                Letter
      of Credit

              	
                20

              
	
                LIBO
      Rate

              	
                20

              
	
                Lien

              	
                20

              
	
                Loan
      Documents

              	
                21

              
	
                Loan
      Guarantor

              	
                21

              
	
                Loan
      Guaranty

              	
                21

              


      

    


    
      
         


      

      
        viii

        
          

        

      

      
         


      

    

    


    
      
        	
                Loan
      Parties

              	
                21

              
	
                Loans

              	
                21

              
	
                Material
      Adverse Effect

              	
                21

              
	
                Material
      Agreements

              	
                21

              
	
                Material
      Indebtedness

              	
                21

              
	
                Material
      Real Property

              	
                22

              
	
                Maturity
      Date

              	
                22

              
	
                Maximum
      Liability

              	
                22

              
	
                Maximum
      Rate

              	
                108

              
	
                Moody’s

              	
                22

              
	
                Mortgages

              	
                22

              
	
                Multiemployer
      Plan

              	
                22

              
	
                Net
      Capital Expenditures

              	
                22

              
	
                Net
      Income

              	
                22

              
	
                Net
      Orderly Liquidation Value Inventory Rate

              	
                22

              
	
                Net
      Orderly Liquidation Value Of Eligible Trucks

              	
                23

              
	
                Net
      Proceeds

              	
                23

              
	
                Non-Consenting
      Lender

              	
                23

              
	
                Non-Extension
      Notice Date

              	
                42

              
	
                Non-Paying
      Guarantor

              	
                23

              
	
                Non-Recourse
      Indebtedness

              	
                23

              
	
                Notes
      Agent

              	
                24

              
	
                Notes
      Priority Collateral

              	
                24

              
	
                Obligated
      Party

              	
                24

              
	
                Obligations

              	
                24

              
	
                Off-Balance
      Sheet Liability

              	
                24

              
	
                Other
      Taxes

              	
                24

              
	
                Overadvance

              	
                24

              
	
                parent

              	
                31

              
	
                Participant

              	
                24

              
	
                Payee

              	
                51

              
	
                Paying
      Guarantor

              	
                24

              
	
                PBGC

              	
                24

              
	
                Permitted
      Acquisition

              	
                24

              
	
                Permitted
      Discretion

              	
                26

              
	
                Permitted
      Investments

              	
                26

              
	
                Person

              	
                27

              
	
                Plan

              	
                27

              
	
                Prepayment
      Event

              	
                27

              
	
                primary
      obligor

              	
                18

              
	
                Prime
      Rate

              	
                27

              
	
                Pro
      Forma Basis

              	
                27

              
	
                Projections

              	
                27

              
	
                Protective
      Advance

              	
                28

              
	
                Real
      Property

              	
                28

              
	
                Register

              	
                28

              


      

    


    
      
         


      

      
        ix

        
          

        

      

      
         


      

    

    


    
      
        	
                Related
      Parties

              	
                28

              
	
                Reorganization
      Plan

              	
                28

              
	
                Report

              	
                28

              
	
                Required
      Lenders

              	
                28

              
	
                Requirement
      of Law

              	
                28

              
	
                Reserves

              	
                28

              
	
                Responsible
      Officer

              	
                29

              
	
                Restricted
      Payment

              	
                29

              
	
                Revolving
      Commitment

              	
                29

              
	
                Revolving
      Exposure

              	
                29

              
	
                Revolving
      Lender

              	
                29

              
	
                Revolving
      Loan

              	
                29

              
	
                S&P

              	
                29

              
	
                Secured
      Obligations

              	
                29

              
	
                Secured
      Parties

              	
                29

              
	
                Security
      Agreement

              	
                30

              
	
                Senior
      Notes

              	
                30

              
	
                Senior
      Notes Account

              	
                30

              
	
                Senior
      Notes Agreement

              	
                30

              
	
                Senior
      Notes Documents

              	
                30

              
	
                Service
      Agreement

              	
                30

              
	
                Servicer

              	
                30

              
	
                Settlement

              	
                38

              
	
                Settlement
      Date

              	
                38

              
	
                Standby
      LC Exposure

              	
                30

              
	
                Statutory
      Reserve Rate

              	
                30

              
	
                Subordinated
      Indebtedness

              	
                31

              
	
                subsidiary

              	
                31

              
	
                Subsidiary

              	
                31

              
	
                Supermajority
      Revolving Lenders

              	
                31

              
	
                Swap
      Agreement

              	
                31

              
	
                Swap
      Obligations

              	
                31

              
	
                Swingline
      Exposure

              	
                31

              
	
                Swingline
      Lender

              	
                32

              
	
                Swingline
      Loan

              	
                32

              
	
                Taxes

              	
                32

              
	
                Transactions

              	
                32

              
	
                Trucks

              	
                32

              
	
                Trustee

              	
                32

              
	
                Type

              	
                32

              
	
                UCC

              	
                32

              
	
                Unfunded
      Pension Liability

              	
                32

              
	
                Unliquidated
      Obligations

              	
                32

              
	
                Withdrawal
      Liability

              	
                33

              
	
                Withholding
      Agent

              	
                33

              


      

    


    
      
         


      

      
        x

        
          

        

      

      
         


      

    


    CREDIT
AGREEMENT dated as of August 31, 2010 (as it may be amended, modified or
supplemented from time to time, this “Agreement”),
among U.S. CONCRETE,
INC. (the “Borrower”),
the other Loan Parties party hereto from time to time, the Lenders party hereto,
and JPMORGAN CHASE BANK,
N.A., as Administrative Agent.

     

    The
parties hereto agree as follows:

     

    ARTICLE
I

     

    Definitions

     

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

     

    “Account”
has the meaning assigned to such term in the Security Agreement.

     

    “Account
Debtor” means any Person obligated on an Account.

     

    “Acquisition”
means any transaction, or any series of related transactions, consummated on or
after the date of this Agreement, by which any Loan Party (a) acquires all or
substantially all of the assets of any Person or any division or line of
business of any other Person, whether through purchase of assets, merger or
otherwise or (b) directly or indirectly acquires (in one transaction or as the
most recent transaction in a series of related transactions) at least a majority
(in number of votes) of the Equity Interests in a Person which has ordinary
voting power for the election of directors or other similar management personnel
of a Person (other than Equity Interests having such power only by reason of the
happening of a contingency) or a majority of the outstanding Equity Interests in
a Person.

     

    “Adjusted
LIBO Rate” means, with respect to any Eurodollar Borrowing for any
Interest Period or for any CBFR Borrowing, an interest rate per annum (rounded
upwards, if necessary, to the next 1/16 of 1%) equal to (a) the LIBO Rate for
such Interest Period multiplied by (b) the Statutory Reserve Rate.

     

    “Adjusted
One Month LIBOR Rate” means an interest rate per annum equal to the sum
of (a) 1.0% per annum plus (b)
the Adjusted LIBO Rate for a one-month Interest Period on such day (or if such
day is not a Business Day, the immediately preceding Business Day); provided
that, for the avoidance of doubt, the Adjusted LIBO Rate for any day shall be
based on the rate appearing on the Reuters Screen LIBOR01 Page (or on any
successor or substitute page) at approximately 11:00 a.m., London time on such
day (without any rounding).

     

    “Administrative
Agent” means JPMorgan Chase Bank, N.A., in its capacity as administrative
agent for the Lenders hereunder and its successors and permitted
assigns.

     

    “Administrative
Questionnaire” means an Administrative Questionnaire in a form supplied
by the Administrative Agent.


    
      
         


      

      
        1

        
          

        

      

      
         


      

    

     

    “Affiliate”
means, with respect to a specified Person, another Person that directly, or
indirectly through one or more intermediaries, Controls or is Controlled by or
is under common Control with the Person specified.

     

    “Aggregate
Credit Exposure” means, at any time, the aggregate Credit Exposure of all
the Lenders.

     

    “Aggregates”
means all stone, sand, gravel, limestone and similar minerals, including, but
not limited to, all such materials that constitute “as-extracted collateral”
under the UCC (but excluding oil and gas).

     

    “Applicable
Margin” means 2.75% per annum with respect to CBFR Loans and 3.75% per
annum with respect to Eurodollar Loans.

     

    “Applicable
Percentage” means, with respect to any Lender, with respect to Revolving
Loans, LC Exposure, Swingline Loans, Overadvances, Protective Advances or
Aggregate Credit Exposure, a percentage equal to a fraction the numerator of
which is such Lender’s Revolving Commitment and the denominator of which is the
aggregate Revolving Commitment of all Revolving Lenders (if the Revolving
Commitments have terminated or expired, the Applicable Percentages shall be
determined based upon such Lender’s share of the aggregate Revolving Exposures
at that time); provided that in the case of Section 2.20 when a
Defaulting Lender shall exist, any such Defaulting Lender’s Revolving Commitment
shall be disregarded in the calculation.

     

    “Applicable
Unused Commitment Fee Rate” means 0.75% per annum.

     

    “Appraisal”
means each appraisal referenced in Section 4.01(x), and
any appraisal that is conducted after the Effective Date pursuant to Section 5.11, for the purpose of
calculating certain components of the Borrowing Base, in form and substance
reasonably satisfactory to the Administrative Agent and performed by an
appraiser that is reasonably satisfactory to the Administrative
Agent.

     

    “Approved
Fund” has the meaning assigned to such term in Section
9.04.

     

    “Assignment
and Assumption” means an assignment and assumption entered into by a
Lender and an assignee (with the consent of any party whose consent is required
by Section
9.04), and accepted by the Administrative Agent, substantially in the
form of Exhibit
A or any other form approved by the Administrative Agent.

     

    “Availability”
means, at any time, an amount equal to (a) the lesser of (i) the Revolving
Commitment and (ii) the Borrowing Base minus (b)
the sum of (i) Revolving Exposure of all Lenders and (ii) the Availability
Block.

     

    “Availability
Block”
means an amount equal to (a) $15,000,000 for the Initial Availability Block
Period, and (b) at all times after the Initial Availability Block Period,
unless and until the FCCR Test has been satisfied, $15,000,000 plus $1,000,0000
for each month after the expiration of the Initial Availability Block Period, up
to a maximum Availability Block of $20,000,000.  If the FCCR Test is
satisfied at any time after the Initial Availability Block Period, the
Availability Block will be eliminated and shall not be
reimposed.


    
      
         


      

      
        2

        
          

        

      

      
         


      

    

     

    “Availability
Period” means the period from and including the Effective Date to but
excluding the earlier of the Maturity Date and the date of termination of the
Commitments.

     

    “Available
Revolving Commitment” means, at any time, the Revolving Commitment then
in effect minus
the Revolving Exposure of all Revolving Lenders at such time.

     

    “Banking
Services” means each and any of the following bank services provided to
any Loan Party by any Lender or, during the period it is a Lender, 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” of the Loan Parties means any and all obligations
of the Loan Parties, 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.

     

    “Banking
Services Reserves” means all Reserves which the Administrative Agent from
time to time establishes in its Permitted Discretion for Banking Services then
provided or outstanding.

     

    “Board”
means the Board of Governors of the Federal Reserve System of the United States
of America.

     

    “Borrower”
means U.S.
Concrete, Inc., a Delaware corporation.

     

    “Borrowing”
means (a) Revolving Loans of the same Type, made, converted or continued on the
same date and, in the case of Eurodollar Loans, as to which a single Interest
Period is in effect, (b) a Swingline Loan, (c) a Protective Advance and (d) an
Overadvance.

     

    “Borrowing
Base” means, at any time, (a) the sum of (i) the product of 85% and the
face amount of all Eligible Accounts of the Borrowing Base Contributors
(calculated net, without duplication, of all finance charges, late fees and
other fees that are unearned, unpaid sales, excise or similar taxes, and credits
or allowances granted at such time), (ii) the lesser of (x) the product of
85% multiplied by the
Net Orderly Liquidation Value Inventory Rate of the Eligible Inventory of the
Borrowing Base Contributors (valued at the lower of cost or market on a
first-in, first-out basis) and (y) the sum of (1) 50% of the Eligible
Inventory (other than Eligible Aggregates Inventory) of the Borrowing Base
Contributors and (2) 65% of the Eligible Aggregates Inventory of the
Borrowing Base Contributors (in each case, valued at the lower of cost or market
on a first-in, first-out basis) and (iii) the lesser of (x) $15,000,000 or
(y) the sum of (3) the product of 85% multiplied by (A) the
Net Orderly Liquidation Value Of Eligible Trucks of the Borrowing Base
Contributors as of the date of the latest Appraisal minus
(B) the Net Orderly Liquidation Value Of Eligible Trucks that have been sold
since the date of the latest Appraisal of Eligible Trucks, plus (4)
the product of 80% of the cost of newly acquired Eligible Trucks (net of any
discounts, rebates or credits and excluding any fees, expenses, sales taxes,
other taxes and delivery charges) of the Borrowing Base Contributors since the
date of the latest Appraisal and minus
(5) the Depreciation Amount applicable to Eligible Trucks of the Borrowing Base
Contributors, minus (b) all
Reserves then in effect. The Administrative Agent may, in its Permitted
Discretion, reduce the advance rates set forth above, adjust Reserves or reduce
one or more of the other elements used in computing the Borrowing Base; provided
that any such reduction in advance rates, adjustment in Reserves or reduction in
the elements used in computing the Borrowing Base shall only become effective
upon not less than one (1) Business Day’s notice to the Borrower (during which
period the Administrative Agent shall be available to discuss any such proposed
reduction or adjustment with the Borrower).  The Borrowing Base at any
time shall be determined by reference to the most recent Borrowing Base
Certificate delivered to the Administrative Agent in compliance with the terms
hereof.


    
      
         


      

      
        3

        
          

        

      

      
         


      

    

     

    “Borrowing
Base Certificate” means a certificate, signed and certified as accurate
and complete by a Financial Officer of the Borrower, in substantially the form
of Exhibit C or
another form which is acceptable to the Administrative Agent in its sole
discretion.

     

    “Borrowing
Base Collateral” means the Accounts, Inventory and Trucks (other than
Excluded Collateral) included in the Borrowing Base.

     

    “Borrowing
Base Contributors” means, at any time, the Borrower and each Loan Party
owning Borrowing Base Collateral.

     

    “Borrowing
Request” means a request by the Borrower for a Borrowing in accordance
with Section
2.02.

     

    “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; provided that, when
used in connection with a Eurodollar Loan, the term “Business Day” shall
also exclude any day on which banks are not open for dealings in dollar deposits
in the London interbank market.

     

    “Capital
Expenditures” means, without duplication, any expenditure for any
purchase or other acquisition of any asset which would be classified as a fixed
or capital asset on a consolidated balance sheet of the Borrower and its
Subsidiaries prepared in accordance with GAAP; provided that such term shall
not include amounts expended (i) during such period as a part of the
consideration for, or assets acquired in connection with, any Permitted
Acquisition or obligations assumed in any Permitted Acquisition and (ii) to
replace or repair assets, equipment or other property lost, destroyed, damaged
or condemned, solely (except for any applicable deductible retainage, co-payment
or similar deduction or reduction in reimbursement) to the extent of the amount
of reimbursement (whether pursuant to insurance or indemnity claims) that such
Person has actually received in respect of such lost, destroyed, damaged or
condemned assets.

     

    “Capital
Lease” means, with respect to any Person, any lease of, or other
arrangement conveying the right to use, property by such Person as lessee that
would be accounted for as a capital lease on a balance sheet of such Person
prepared in conformity with GAAP.


    
      
         


      

      
        4

        
          

        

      

      
         


      

    

     

    “Capital
Lease Obligations” of any Person means the obligations of such Person to
pay rent or other amounts under any Capital Lease, and the amount of such
obligations shall be the capitalized amount thereof determined in accordance
with GAAP.

     

    “CB
Floating Rate” means the Prime Rate; provided that the CB Floating Rate
shall never be less than the Adjusted One Month LIBOR Rate for a one-month
Interest Period on such day (or if such day is not a Business Day, the
immediately preceding Business Day).  Any change in the CB Floating
Rate due to a change in the Prime Rate or the Adjusted One Month LIBOR Rate
shall be effective from and including the effective date of such change in the
Prime Rate or the Adjusted One Month LIBOR Rate, respectively.

     

    “CBFR”,
when used in reference to any Loan or Borrowing, refers to whether such Loan, or
the Loans comprising such Borrowing, are bearing interest at a rate determined
by reference to the CB Floating Rate.

     

    “Change in
Control” means the occurrence of any of the following:  (a) any
person or group of persons (within the meaning of Section 13(d) and 14(d)
of the Securities Exchange Act of 1934, as amended (the “Exchange
Act”)) shall have acquired beneficial ownership (within the meaning of
Rule 13d-3 of the Securities and Exchange Commission under the Exchange Act) of
50% or more of the issued and outstanding voting securities within the meaning
of Rule 13d-5(b) of the Exchange Act of the Borrower, (b) during any period of
twelve consecutive calendar months commencing from and after the Effective Date,
individuals who, at the beginning of such period, constituted the board of
directors of the Borrower (together with any new directors whose election by the
board of directors of the Borrower or whose nomination for election by the
stockholders of the Borrower was approved by a vote of at least a majority of
the directors then still in office who either were directors at the beginning of
such period or whose elections or nomination for election was previously so
approved) cease for any reason other than death or disability to constitute a
majority of the directors then in office or (c) a Fundamental Change of Control
(as defined in the Senior Notes Agreement).

     

    “Change in
Law” means, in each case after the Effective Date, (a) the adoption
of any law, rule or regulation, (b) any change in any law, rule or regulation or
in the interpretation or application thereof by any Governmental Authority or
(c) compliance by any Lender or the Issuing Bank (or, for purposes of Section 2.15(b), by
any lending office of such Lender or by such Lender’s or the Issuing Bank’s
holding company, if any) with any request, guideline or directive (whether or
not having the force of law) of any Governmental Authority made or issued after
the Effective Date; provided however, for
purposes of this Agreement, the Dodd-Frank Wall Street Reform and Consumer
Protection Act and all requests, guidelines or directives in connection
therewith are deemed to have gone into effect and to have been adopted after the
Effective Date.

     

    “Chase”
means JPMorgan Chase Bank, N.A., a national banking association, in its
individual capacity, and its successors and permitted assigns.

     

    “Class”,
when used in reference to any Loan or Borrowing, refers to whether such Loan, or
the Loans comprising such Borrowing, are Revolving Loans, Swingline Loans,
Protective Advances or Overadvances.


    
      
         


      

      
        5

        
          

        

      

      
         


      

    

     

    “Code”
means the Internal Revenue Code of 1986, as amended from time to
time.

     

    “Collateral”
means any and all property of a Loan Party, now existing or hereafter acquired,
that may at any time be or become subject to a security interest or Lien in
favor of the Administrative Agent, on behalf of itself and the Lenders, to
secure payment of the Secured Obligations pursuant to the Collateral
Documents.

     

    “Collateral
Access Agreement” has the meaning assigned to such term in the Security
Agreement.

     

    “Collateral
Documents” means, collectively, the Security Agreement, the Mortgages and
any other documents granting a Lien upon the Collateral as security for payment
of the Secured Obligations.

     

    “Collection
Account” has the meaning assigned to such term in the Security
Agreement.

     

    “Commercial
LC Exposure” means, at any time, the sum of (a) the aggregate undrawn
amount of all outstanding commercial Letters of Credit at such time plus (b) the
aggregate amount of all LC Disbursements relating to commercial Letters of
Credit that have not yet been reimbursed by or on behalf of the Borrower at such
time.  The Commercial LC Exposure of any Lender at any time shall be
its Applicable Percentage of the total Commercial LC Exposure at such
time.

     

    “Commitment”
means, with respect to each Lender, the sum of such Lender’s Revolving
Commitment.  The initial amount of each Lender’s Commitment is set
forth on the Commitment Schedule,
or in the Assignment and Assumption pursuant to which such Lender shall have
assumed its Commitment, as applicable.

     

    “Commitment
Schedule” means the Schedule attached hereto identified as
such.

     

    “Consolidated
Net Tangible Assets” means the aggregate amount of assets of the
Borrower and its Subsidiaries (less applicable reserves and other properly
deductible items) after deducting therefrom (to the extent otherwise included
therein) (a) all current liabilities (other than the obligations under the
Senior Notes Agreement or current maturities of long-term Indebtedness), and (b)
all goodwill, trade names, trademarks, patents, unamortized debt discount and
expense and other like intangibles, all as set forth on the books and records of
the Borrower and its Subsidiaries on a consolidated basis and in accordance with
GAAP.

     

    “Control”
means the possession, directly or indirectly, of the power to direct or cause
the direction of the management or policies of a Person, whether through the
ability to exercise voting power, by contract or otherwise.  “Controlling”
and “Controlled”
have meanings correlative thereto.

     

    “Controlled
Disbursement Account” means, collectively, account # 826095606, and
any replacement or additional accounts of the Borrower maintained with the
Administrative Agent as a cash management account pursuant to and under any
agreement between the Borrower and the Administrative Agent, as modified,
amended or supplemented from time to time, and through which all disbursements
of the Borrower, any Loan Party and any designated Subsidiary of the Borrower
are made and settled on a daily basis with no uninvested balance remaining
overnight.


    
      
         


      

      
        6

        
          

        

      

      
         


      

    

     

    “Credit
Exposure” means, as to any Lender at any time, the sum of (a) such
Lender’s Revolving Exposure at such time, plus (b)
an amount equal to its Applicable Percentage, if any, of the aggregate principal
amount of Protective Advances outstanding at such time.

     

    “Customary
Permitted Liens” means, with respect to any Person, any of the following
Liens:

     

    (a)          Liens
with respect to the payment of taxes, assessments or governmental charges in
each case (i) that are not yet due or that are being contested in good faith by
appropriate proceedings and with respect to which adequate reserves or other
appropriate provisions are being maintained to the extent required by GAAP or
(ii) in respect of which the aggregate liability of such Person does not exceed
$1,500,000 at any time;

     

    (b)          Liens
of landlords arising by statute and liens of suppliers, mechanics, carriers,
materialmen, warehousemen or workmen and other liens imposed by law created in
the ordinary course of business (i) for amounts not yet due or that are being
contested in good faith by appropriate proceedings and with respect to which
adequate reserves or other appropriate provisions are being maintained to the
extent required by GAAP or (ii) in respect of which the aggregate liability of
such Person does not exceed $1,500,000 at any time;

     

    (c)          deposits
and pledges of cash, Permitted Investments and Deposit Accounts made in the
ordinary course of business in connection with workers’ compensation,
unemployment insurance or other types of social security benefits or other
ordinary course statutory obligations or to secure the performance of bids,
tenders, sales, contracts (other than for the repayment of borrowed money) and
surety, appeal, customs, bid or performance bonds;

     

    (d)          encumbrances
arising by reason of zoning restrictions, easements, licenses, reservations,
covenants, rights-of-way, utility easements, building restrictions and other
similar encumbrances on the use of Real Property not materially detracting from
the value of such Real Property or not materially interfering with the ordinary
conduct of the business conducted and proposed to be conducted at such Real
Property;

     

    (e)          encumbrances
arising under leases, subleases, licenses or sublicenses of Real Property that
do not, in the aggregate, materially detract from the value of such Real
Property or interfere with the ordinary conduct of the business conducted and
proposed to be conducted at such Real Property;

     

    (f)           Liens
affecting the fee title of any leased Real Property which are created by a party
other than a Loan Party;

     

    (g)          financing
statements with respect to a lessor’s rights in and to personal property leased
to such Person in the ordinary course of such Person’s business other than
through a Capital Lease;


    
      
         


      

      
        7

        
          

        

      

      
         


      

    

     

    (h)        
 solely with respect to Real Property, such other Liens, defects and
encumbrances as may be approved by the Administrative Agent in its sole
discretion;

     

    (i)           Liens
securing judgments which do not constitute an Event of Default; and

     

    (j)           Liens
in favor of a banking institution arising as a matter of law or otherwise
encumbering deposits (including the right of set off) and which are within the
general parameters customary in the banking industry;

     

    provided that the
term “Customary Permitted Liens” shall not include any Lien securing
Indebtedness.

     

    “Default”
means any event or condition which constitutes an Event of Default or which upon
notice, lapse of any grace period or both would, unless cured or waived
hereunder, become an Event of Default.

     

    “Defaulting
Lender” means any Lender, as determined by the Administrative Agent, that
has (a) failed to fund any portion of its Loans or participations in Letters of
Credit required to be funded by it hereunder within two (2) Business Days
of the date required to be funded by it hereunder, (b) has notified the
Administrative Agent, any Issuing Bank, the Swingline Lender, any Lender and/or
the Borrower in writing that it does not intend to comply with any of its
funding obligations under this Agreement or has made a public statement to the
effect that it does not intend to comply with its funding obligations under this
Agreement, (c) has otherwise failed to pay over to the Administrative Agent or
any other Lender any other amount required to be paid by it hereunder within
three (3) Business Days of the date when due, unless the subject of a good faith
dispute, or (d) (i) becomes or is insolvent or has a parent company that
has become or is insolvent, or (ii) becomes the subject of a bankruptcy or
insolvency proceeding, or has had a receiver, conservator, trustee or custodian
appointed for it, or has taken any action or furtherance of, or indicating its
consent to, approval of or acquiescence in any such proceeding or appointment or
has a parent company that has become the subject of a bankruptcy or insolvency
proceeding, or has had a receiver, conservator, trustee or custodian appointed
for it, or has taken any action in furtherance of, or indicating its consent to,
approval of or acquiescence in any such proceeding or appointment.

     

    “Deposit
Account” has the meaning given to such term in the UCC.

     

    “Depreciation
Amount”
means, as of any date of determination, an amount equal to the product of (a)
1.5742% of the orderly liquidation value of the Eligible Trucks of the Borrowing
Base Contributors per the most recent Appraisal multiplied by (b) the number
of months since the most recent Appraisal; adjusted upwards for
depreciation attributable to any Eligible Trucks of the Borrowing Base
Contributors acquired since the date of the most recent Appraisal (calculated
based on 1.5742% per month of the cost of such acquired Eligible Trucks) and
adjusted downwards for any depreciation attributable to Eligible Trucks of the
Borrowing Base Contributors disposed of since the date of the most recent
Appraisal (calculated based on 1.5742% per month of the orderly liquidation
value of such disposed Eligible Trucks).


    
      
         


      

      
        8

        
          

        

      

      
         


      

    

     

    “DIP
Credit Agreement” means that certain Revolving Credit, Term Loan and
Guarantee Agreement dated as of May 3, 2010 by and among the Borrower, the other
guarantors party thereto, the lenders party thereto and the Administrative
Agent.

     

    “Disclosed
Matters” means the actions, suits and proceedings and the environmental
matters disclosed in Schedule 3.06.

     

    “Document”
has the meaning assigned to such term in the Security Agreement.

     

    “dollars”
or “$”
refers to lawful money of the United States of America.

     

    “EBITDA” means, with respect to
any Person for any period, (a) Net Income of such Person for such period plus (b) the sum of, in each
case to the extent included in the calculation of such Net Income but without
duplication, (i) any provision for federal, state and local income and franchise
taxes, (ii) Interest Expense, (iii) loss or charges from extraordinary items,
including losses from the sale or
other disposition of assets or any subsidiaries, (iv) depreciation, depletion
and amortization expenses, (v) all other non-cash charges, non-cash impairment
charges and non-cash charges, expenses and losses for such period, provided that each of the
foregoing is a non-recurring charge, expense or loss, (vi) the amount of any
non-cash (x) compensation deduction as the result of any grant of stock or
stock equivalents to employees, officers, directors or consultants and
(y) incentive compensation charges, (vii) unusual or non-recurring charges,
fees and expenses which are acceptable to the Administrative Agent in its sole
discretion, (viii) all one time compensation charges, including without
limitation, stay bonuses paid to existing management and severance costs, in an
aggregate amount not to exceed $1,000,000 and to the extent incurred and paid
prior to December 31, 2010, (ix) fees, expenses and costs incurred in
connection with the Transactions, the Reorganization Plan and other cash
restructuring charges in an aggregate amount not to exceed $11,000,000 and to
the extent paid subsequent to the Effective Date and prior to September 30,
2011, of which cash restructuring charges incurred and paid after the Effective
Date will not exceed $1,800,000, (x) any gains or losses associated with the
disposition of the Excluded Jointed Venture, including the Excluded JV Equity
and Excluded JV Assets, and (xi) to the extent not already included in
Consolidated Net Income, cash proceeds from business interruption insurance
minus (c) the sum of,
in each case to the extent included in the calculation of such Net Income but
without duplication, (i) any credit for any federal, state and local income and
franchise tax, (ii) gains from extraordinary items for such period and (iii) any
other non-cash gains or other items which have been added in determining Net
Income, including any reversal of a change referred to in clause (b)(vi) above by
reason of a decrease in the value of any Stock or Stock
Equivalent.  In no event shall the calculation of “EBITDA” include any
gain or loss from the early extinguishment or repurchase of
Indebtedness.

     

    “Effective
Date” means the date on which the conditions specified in Section 4.01 are
satisfied (or waived in accordance with Section
9.02).

     

    “Eligible
Accounts” means, at any time, the Accounts of the Borrowing Base
Contributors which the Administrative Agent determines in its Permitted
Discretion are eligible as the basis for the extension of Revolving Loans,
Swingline Loans and the issuance of Letters of Credit
hereunder.  Without limiting the Administrative Agent’s discretion
provided herein, Eligible Accounts shall not include any
Account:


    
      
         


      

      
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    (a)           in
which the Administrative Agent does not have a fully perfected first priority
Lien or is subject to any Lien other than Customary Permitted Liens so long as
such Customary Permitted Liens (other than Customary Permitted Liens of the type
described in clause
(a) of the definition thereof) do not have priority over the Lien in
favor of the Administrative Agent; or

     

    (b)           which
is (i) more than 90 days past due according to the original terms of sale or
(ii) 120 days or more past the original invoice date thereof; or

     

    (c)           any
representation or warranty contained in this Agreement or any other Loan
Document with respect to such specific Account is not true and correct;
or

     

    (d)           with
respect to which the Account Debtor has disputed liability or made any claim
with respect to any other Account due from such Account Debtor to such Borrowing
Base Contributor but only to the extent of such dispute or claim;
or

     

    (e)           with
respect to which the Account Debtor has (i) filed a petition for bankruptcy or
any other relief under the Bankruptcy Code or any other law relating to
bankruptcy, insolvency, reorganization or relief of debtors, (ii) made a general
assignment for the benefit of creditors, (iii) had filed against it any petition
or other application for relief under the Bankruptcy Code or any such other law,
(iv) has failed, suspended business operations, become insolvent, called a
meeting of its creditors generally for the purpose of obtaining any financial
concession or accommodation or (v) had or suffered a receiver or a trustee to be
appointed for all or a significant portion of its assets or affairs, in each
case, unless such Accounts arose on a post-petition basis and (1) the Account
Debtor on such Account is a debtor-in-possession in a Chapter 11 case under the
Bankruptcy Code and has available debtor-in-possession financing from sources
and under terms reasonably acceptable to the Administrative Agent and (2) the
Administrative Agent, acting in its sole discretion, determines that such
Account shall be an Eligible Account; provided, however,
that the aggregate amount of all otherwise Eligible Accounts excluded under this
clause (e) shall not,
at any time, exceed 5% of the Eligible Accounts of the Borrowing Base
Contributors; or

     

    (f)           the
Account Debtor on such Account or any of its Affiliates is also a supplier to or
creditor of the Borrower or any of its Subsidiaries, but only to the extent of
the amount owing by the Borrower or any of its Subsidiaries to such supplier or
creditor, unless such supplier or creditor has executed a no-offset letter
reasonably satisfactory to the Administrative Agent, in its sole discretion, in
which case the full amount of such account shall be eligible pursuant to this
clause (f);
or

     

    (g)           which
is owed by an Account Debtor which (i) does not maintain its chief executive
office in the U.S. or Canada or (ii) is not organized under applicable law of
the U.S., any state of the U.S., Canada or any province of Canada unless, in
either case, the sale is on letter of credit or acceptance terms acceptable to
the Administrative Agent in its Permitted Discretion, and (1) such letter of
credit names the Administrative Agent as beneficiary for the benefit of the
Secured Parties or (2) the issuer of such letter of credit has consented to the
assignment of the proceeds thereof to the Administrative Agent;
or


    
      
         


      

      
        10

        
          

        

      

      
         


      

    

     

    (h)          which
(i) does not arise from the sale of goods or performance of services in the
ordinary course of business, (ii) is not evidenced by an invoice or other
documentation satisfactory to the Administrative Agent which has been sent to
the Account Debtor, (iii) represents a sale on a bill-and-hold, guaranteed
sale, sale-and-return, sale on approval, consignment, cash-on-delivery or any
other repurchase or return basis, or (iv) relates to payments of interest;
or

     

    (i)           which
is subject to any deduction, offset, counterclaim, return privilege or other
conditions other than volume sales discounts given in the ordinary course of
such Borrowing Base Contributor’s business; provided,
however, that such Account shall
be ineligible pursuant to this clause (i) only to the
extent of such deduction, offset, counterclaim, return privilege or other
condition; or

     

    (j)           with
respect to which the Account Debtor is located in any State of the United States
requiring the holder of such Account, as a precondition to commencing or
maintaining any action in the courts of such State, either to (i) receive a
certificate of authorization to do business in such State or be in good standing
in such State or (ii) file a Notice of Business Activities Report with the
appropriate office or agency of such State, in each case unless the holder of
such Account has received such a certificate of authority to do business, is in
good standing or, as the case may be, has duly filed such a notice in such
State; or

     

    (k)           with
respect to which the Account Debtor is a Governmental Authority, unless such
Borrowing Base Contributor has assigned its rights to payment of such Account to
the Administrative Agent pursuant to the Assignment of Claims Act of 1940, as
amended, in the case of a federal Governmental Authority, and pursuant to
applicable law, if any, in the case of any other Governmental Authority, and
such assignment has been accepted and acknowledged by the appropriate government
officers; or

     

    (l)           which
represents late charges or finance charges; provided that with
respect to any Account for which late charges or finance charges constitute only
a portion of such Account, such Account shall be ineligible pursuant to this
clause (l) only to the extent of
such late charges or finance charges; or

     

    (m)          which
represents a progress billing consisting of an invoice for goods sold or used or
services rendered pursuant to a contract under which the Account Debtor’s
obligation to pay that invoice is subject to such Borrowing Base Contributor’s
completion of further performance under such contract; or

     

    (n)          which
was previously the subject of a charge-back, debit memo or other transaction
pursuant to which the liability of the Account Debtor thereunder was at one time
extinguished or settled but has subsequently been reinstated and re-aged;
or

     

    (o)          with
respect to which 50% or more of the outstanding Accounts of the Account Debtor
have become, or have been determined by the Administrative Agent, in accordance
with the provisions hereof, to be, ineligible pursuant to clause (b) above;
or

     

    (p)          which
is denominated in a currency other than Dollars; or


    
      
         


      

      
        11

        
          

        

      

      
         


      

    

     

    (q)         which
is a bonded Account or is evidenced by any promissory note, chattel paper or
instrument; or

     

    (r)          with
respect to which such Borrowing Base Contributor, in order to be entitled to
collect such Account, is required to perform any additional service for, or
perform or incur any additional obligation to, the Person to whom or to which it
was made; or

     

    (s)          the
total Accounts of such Account Debtor to such Borrowing Base Contributor
represent more than 15% of the Eligible Accounts of all Borrowing Base
Contributors at such time, but only to the extent of such excess;
or

     

    (t)         
 which is owed by any Affiliate, employee, officer, director, agent or
stockholder of any Loan Party; or

     

    (u)          which
the Administrative Agent determines may not be paid by reason of the Account
Debtor’s inability to pay or which the Administrative Agent otherwise determines
in its Permitted Discretion is unacceptable for any reason whatsoever;
or

     

    (v)           which,
for any Account Debtor, exceeds a credit limit determined by the Administrative
Agent in its Permitted Discretion, to the extent of such excess; or

     

    (w)          with
respect to which any check or other instrument of payment has been returned
uncollected for any reason; or

     

    (x)           for
which the goods giving rise to such Account have not been shipped to the Account
Debtor or for which the services giving rise to such Account have not been
performed by the Borrower or if such Account was invoiced more than once;
or

     

    (y)     
     which does not comply in all material respects
with the requirements of all applicable laws and regulations, whether Federal,
state or local, including without limitation the Federal Consumer Credit
Protection Act, the Federal Truth in Lending Act and Regulation Z of the Board;
or

     

    (z)     
      which relates to the sale of Aggregates at
the minehead or other site of extraction unless an appropriate UCC-1 financing
statement or Mortgage in favor of the Administrative Agent complying with
Section 9-502 of the UCC as to as-extracted collateral shall have been
properly filed in the real property records.

     

    In the
event that an Account which was previously an Eligible Account ceases to be an
Eligible Account hereunder, the Borrower shall notify the Administrative Agent
thereof on and at the time of submission to the Administrative Agent of the next
Borrowing Base Certificate.  In determining the amount of an Eligible
Account, the face amount of an Account may, in the Administrative Agent’s
Permitted Discretion, be reduced by, without duplication of any other Reserve,
eligibility criteria or the terms of the definition of Borrowing Base, to the
extent not reflected in such face amount, (i) the amount of all accrued and
actual discounts, claims, credits or credits pending, promotional program
allowances, price adjustments, finance charges or other allowances (including
any amount that the Borrower may be obligated to rebate to an Account Debtor
pursuant to the terms of any agreement or understanding (written or oral)) and
(ii) the aggregate amount of all cash received in respect of such Account but
not yet applied by the Borrower to reduce the amount of such
Account.


    
      
         


      

      
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    “Eligible
Aggregates Inventory”
means that portion of the Eligible Inventory which consists exclusively of
Aggregates.

     

    “Eligible
Inventory” means, at any time, the Inventory of each of the Borrowing
Base Contributors (other than any Inventory that has been consigned by any such
Borrowing Base Contributor) including raw materials and finished goods which the
Administrative Agent determines in its Permitted Discretion is eligible as the
basis for the extension of Revolving Loans, Swingline Loans and the issuance of
Letters of Credit hereunder.  Without limiting the Administrative
Agent’s discretion provided herein, Eligible Inventory shall only include
Inventory (a) that is owned solely by such Borrowing Base Contributor or
(without duplication) jointly with other Borrowing Base Contributors, (b) with
respect to which the Administrative Agent has a valid, perfected and enforceable
first-priority Lien, subject only to Customary Permitted Liens so long as such
Customary Permitted Liens (other than Customary Permitted Liens of the type
described in clause (a) or (b) of the definition
thereof) do not have priority over the Lien in favor of the Administrative
Agent, (c) with respect to which no covenant, representation or warranty
contained in any Loan Document has been breached, (d) that is not, in the
Administrative Agent’s Permitted Discretion, slow moving, obsolete,
unmerchantable, defective, unfit for sale or not salable at prices approximating
at least the cost of such Inventory in the ordinary course of business, and (e)
with respect to which (in respect of any Inventory labeled with a brand name or
trademark and sold by such Borrowing Base Contributor pursuant to a trademark
owned by such Borrowing Base Contributor or a license granted to such Borrowing
Base Contributor) the Administrative Agent would have rights under such
trademark or license pursuant to the Security Agreement or other agreement
reasonably satisfactory to the Administrative Agent to sell such Inventory in
connection with a liquidation thereof.  No Inventory of any Borrowing
Base Contributor shall be Eligible Inventory if such Inventory consists of or
constitutes (i) goods returned or rejected by customers other than goods that
are undamaged or are resalable in the normal course of business, (ii) goods to
be returned to suppliers, (iii) goods in transit (it being understood, for the
avoidance of doubt, that this clause (iii) shall not
exclude from Eligible Inventory any goods that are in transit from a Borrowing
Base Contributor to a customer of such Borrowing Base Contributor or another
Borrowing Base Contributor), (iv) “fuel” or “gasoline” for operational use
by such Borrowing Base Contributor, (v) goods which constitute forms or casting
patterns used in the production of pre-cast concrete Inventory, (vi) goods which
constitute personal computers (and equipment and supplies related thereto),
(vii) spare parts used in maintenance of the Trucks, (viii) goods located,
stored, used or held at the premises of a third party (excluding goods at
customer locations so long as the aggregate amount thereof does not exceed
$500,000 at any time) unless (1)(A) the Administrative Agent shall have received
a Collateral Access Agreement or (B) in the case of Inventory located at a
leased premises, a Reserve of three months’ rent shall have been established
with respect thereto and (2) an appropriate UCC-1 financing statement shall have
been properly filed or (ix) Aggregates located at the site of extraction unless
an appropriate UCC-1 financing statement or Mortgage in favor of the
Administrative Agent complying with Section 9-502 of the UCC as to
as-extracted collateral shall have been properly filed in the real property
records.  In the event that Inventory which was previously Eligible
Inventory ceases to be Eligible Inventory hereunder, the Borrower shall notify
the Administrative Agent thereof on and at the time of submission to the
Administrative Agent of the next Borrowing Base Certificate.


    
      
         


      

      
        13

        
          

        

      

      
         


      

    

     

    “Eligible
Trucks” means the Trucks of each of the Borrowing Base Contributors (a)
that are owned solely by such Borrowing Base Contributor, (b) with respect to
which the Administrative Agent has a valid, perfected and enforceable
first-priority Lien, subject only to Customary Permitted Liens, (c) with respect
to which no covenant, representation or warranty contained in any Loan Document
has been breached, (d) that are not, in the Administrative Agent’s Permitted
Discretion, obsolete, unmerchantable, defective or otherwise unusable and are in
good working order, condition and repair (ordinary wear and tear excepted), (e)
are evidenced by a certificate of title in the name of a Borrowing Base
Contributor and in the possession of the Administrative Agent or the Servicer,
(f) are properly registered in the name of a Borrowing Base Contributor in one
of the states of the United States and all registration fees then due for such
Truck have been paid, (g) the Administrative Agent’s Lien is noted on the
certificate of title therefor, (h) are currently licensed for commercial use in
the United States and are in compliance with all applicable motor vehicle laws,
(i) are insured by the Borrowing Base Contributors pursuant to the terms of this
Agreement and (j) that the Administrative Agent deems to be Eligible Trucks in
its Permitted Discretion.  Trucks which would otherwise be eligible
pursuant to the foregoing criteria but which were not owned by a Borrowing Base
Contributor on the date of the most recent Appraisal delivered to the
Administrative Agent shall only become “Eligible Trucks” on
the last day of any fiscal month during which (or after) such Truck is (or was)
acquired by such Borrowing Base Contributor.

     

    “Environmental
Laws” means all laws, rules, regulations, codes, ordinances, orders,
decrees, judgments, injunctions or binding agreements issued, promulgated or
entered into by any Governmental Authority, relating in any way to the
protection of the environment, preservation or reclamation of natural resources,
the management, release or threatened release of any Hazardous Material or to
public or worker health and safety regarding exposure to Hazardous
Materials.

     

    “Environmental
Liability” means any liability, contingent or otherwise (including any
liability for damages, costs of environmental remediation, fines, penalties or
indemnities), of the Borrower or any Subsidiary resulting from or based upon (a)
violation of any Environmental Law, (b) the generation, use, handling,
transportation, storage, treatment or disposal of any Hazardous Materials, (c)
exposure to any Hazardous Materials, (d) the release or threatened release of
any Hazardous Materials into the environment or (e) any contract, agreement or
other binding consensual arrangement pursuant to which liability is assumed with
respect to any of the foregoing.

     

    “Equity
Interests” means shares of capital stock, partnership interests,
membership interests in a limited liability company, beneficial interests in a
trust or other equity ownership interests in a Person, and any warrants, options
or other rights entitling the holder thereof to purchase or acquire any such
equity interest; provided, however, that (i) no
portion of the Senior Notes shall be deemed Equity Interests until and only to
the extent such portion of any of the Senior Notes is converted into common
stock of the Borrower and (ii) any other instruments evidencing Indebtedness
convertible into or exchangeable for common stock of the Borrower will be deemed
Indebtedness, and not Equity Interests, until the exchange or conversion
thereof.


    
      
         


      

      
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    “Equity
Issuance” means the issuance or sale of any Equity Interests by the
Borrower or any Subsidiary of the Borrower of Equity Interests of the Borrower
or any Subsidiary of the Borrower, as applicable, to any Person other than the
Borrower or any Subsidiary of the Borrower.

     

    “ERISA”
means the Employee Retirement Income Security Act of 1974, as amended from time
to time.

     

    “ERISA
Affiliate” means any trade or business (whether or not incorporated)
that, together with the Borrower, is treated as a single employer under
Section 414(b) or (c) of the Code or, solely for purposes of
Section 302 of ERISA and Section 412 of the Code, is treated as a
single employer under Section 414 of the Code.

     

    “ERISA
Event” means (a) any “reportable event”, as defined in Section 4043
of ERISA or the regulations issued thereunder with respect to a Plan (other than
an event for which the 30-day notice period is waived); (b) the existence with
respect to any Plan of an “accumulated funding deficiency” (as defined in
Section 412 of the Code or Section 302 of ERISA), whether or not
waived; (c) the filing pursuant to Section 412(d) of the Code or
Section 303(d) of ERISA of an application for a waiver of the minimum
funding standard with respect to any Plan; (d) the incurrence by the Borrower or
any of its ERISA Affiliates of any liability under Title IV of ERISA with
respect to the termination of any Plan; (e) the receipt by the Borrower or any
ERISA Affiliate from the PBGC or a plan administrator of any written notice
relating to an intention to terminate any Plan or Plans or to appoint a trustee
to administer any Plan; (f) the incurrence by the Borrower or any of its ERISA
Affiliates of any liability with respect to the withdrawal or partial withdrawal
from any Plan or Multiemployer Plan; or (g) the receipt by the Borrower or any
ERISA Affiliate of any notice, or the receipt by any Multiemployer Plan from the
Borrower or any ERISA Affiliate of any notice, concerning the imposition of
Withdrawal Liability or a determination that a Multiemployer Plan is, or is
expected to be, insolvent or in reorganization, within the meaning of Title IV
of ERISA.

     

    “Eurodollar”,
when used in reference to any Loan or Borrowing, refers to whether such Loan, or
the Loans comprising such Borrowing, are bearing interest at a rate determined
by reference to the Adjusted LIBO Rate.

     

    “Event of
Default” has the meaning assigned to such term in Article
VII.

     

    “Excluded
Collateral” means (a) the Stock of the Excluded Joint Venture (the “Excluded
JV Equity”), (b) the assets owned by the Excluded Joint Venture (the
“Excluded
JV Assets”), (c) any Real Property (other than Material Real Property)
and leasehold interests in the Real Property except solely as may be necessary
to perfect and enforce the Administrative Agent’s Lien in any as-extracted
collateral and (d) property and assets excluded pursuant to the terms of the
Security Agreement.

     

    “Excluded
Issuances” shall
mean an issuance and sale of Equity Interests of Borrower (a) to directors,
officers, or employees of Borrower or its Subsidiaries, (b) to finance capital
expenditures or any Permitted Acquisitions or other Investments pursuant to
Section 6.04(t)
or (c) pursuant to the terms of convertible Indebtedness.
 

    
      
         


      

      
        15

        
          

        

      

      
         


      

    

     

    “Excluded
Joint Venture” means Superior Materials Holdings LLC and its direct and
indirect subsidiaries.

     

    “Excluded
Taxes” means, with respect to the Administrative Agent, any Lender, the
Issuing Bank or any other recipient of any payment to be made by or on account
of any obligation of the Borrower hereunder, (a) income or franchise taxes
imposed on (or measured by) its net income by the United States of America, or
by the jurisdiction under the laws of which such recipient is organized or in
which its principal office is located or, in the case of any Lender, in which
its applicable lending office is located, (b) any branch profits taxes imposed
by the United States of America or any similar tax imposed by any other
jurisdiction in which the Borrower is located, (c) in the case of a Foreign
Lender (other than an assignee pursuant to a request by the Borrower under Section 2.19(b)), any
withholding tax that is imposed on amounts payable to such Foreign Lender at the
time such Foreign Lender becomes a party to this Agreement (or designates a new
lending office) or is attributable to such Foreign Lender’s failure to comply
with Section
2.17(f), except to the extent that such Foreign Lender (or its assignor,
if any) was entitled, at the time of designation of a new lending office (or
assignment), to receive additional amounts from the Borrower with respect to
such withholding tax pursuant to Section 2.17(a) and
(d) any U.S. Federal withholding Taxes imposed by FATCA.

     

    “Existing
Letters of Credit” means those letters of credit described on Schedule 2.06
hereto.

     

    “FATCA”
means Sections 1471 through 1474 of the Code and any regulations or
official interpretations thereof.

     

    “FCCR
Test” means, for any trailing twelve month period ending
September 30, 2011 or the last day of any calendar month thereafter, a
Fixed Charge Coverage Ratio that is equal to or greater than 1.0 to 1.0, as
evidenced by the Borrower’s financial statements delivered to the Administrative
Agent for the fiscal quarter ending September 30, 2011 or for any calendar
month thereafter.

     

    “Federal
Funds Effective Rate” means, for any day, the weighted average (rounded
upwards, if necessary, to the next 1/100 of 1%) of the rates on overnight
Federal funds transactions with members of the Federal Reserve System arranged
by Federal funds brokers, as published on the next succeeding Business Day by
the Federal Reserve Bank of New York, or, if such rate is not so published for
any day that is a Business Day, the average (rounded upwards, if necessary, to
the next 1/100 of 1%) of the quotations for such day for such transactions
received by the Administrative Agent from three Federal funds brokers of
recognized standing selected by it.

     

    “Financial
Officer” means the chief executive officer, chief financial officer,
principal accounting officer, treasurer, assistant treasurer or controller of
the Borrower.
 

    
      
         


      

      
        16

        
          

        

      

      
         


      

    

     

    “Fixed
Charges” means,
with reference to any period, without duplication, cash Interest Expense, plus
prepayments (other than prepayments of the Revolving Loans which do not result
in a permanent reduction in the Commitments and Indebtedness permitted under
Section
6.01(e) required in connection with any disposition or casualty of
assets financed and securing such Indebtedness, which prepayments of such
Permitted Indebtedness shall be in an amount not to exceed the Net Proceeds
received as a result of such disposition or casualty event) and scheduled
principal payments on Indebtedness made during such period, plus
expense for taxes paid in cash, plus
dividends or distributions paid in cash to a Person other than such Person and
its Subsidiaries, plus
Capital Lease Obligation payments, plus
cash contributions to any Plan to the extent not reflected in Net Income, all
calculated for the Borrower and its Subsidiaries on a consolidated basis; provided, that Fixed
Charges shall exclude the financed portion of all third-party financed capital
expenditures.

     

    “Fixed
Charge Coverage Ratio”
means, for any period, the ratio of (a) EBITDA minus
the unfinanced portion of Net Capital Expenditures to (b) Fixed Charges, all
calculated for the Borrower and its Subsidiaries on a consolidated basis in
accordance with GAAP.

     

    “Foreign
Lender” means any Lender that is organized under the laws of a
jurisdiction other than that in which the Borrower is located.  For
purposes of this definition, the United States of America, each State thereof
and the District of Columbia shall be deemed to constitute a single
jurisdiction.

     

    “Foreign
Payee” means any Payee that is organized under the laws of a jurisdiction
other than that in which the Borrower is located.  For purposes of
this definition, the United States of America, each State thereof and the
District of Columbia shall be deemed to constitute a single
jurisdiction.

     

    “Foreign
Subsidiary” means a Subsidiary that is a “controlled foreign corporation”
under Section 957 of the Code.

     

    “Funding
Account” has the meaning assigned to such term in Section
4.01(h).

     

    “GAAP”
means generally accepted accounting principles in the United States of
America.

     

    “Governmental
Authority” means the government of the United States of America, any
other nation or any political subdivision thereof, whether state or local, and
any agency, authority, instrumentality, regulatory body, court, central bank or
other entity exercising executive, legislative, judicial, taxing, regulatory or
administrative powers or functions of or pertaining to government.

     

    “Guarantee”
of or by any Person (the “guarantor”)
means any obligation, contingent or otherwise, of the guarantor guaranteeing or
having the economic effect of guaranteeing any Indebtedness or other obligation
of any other Person (the “primary
obligor”) in any manner, whether directly or indirectly, and including
any obligation of the guarantor, direct or indirect, (a) to purchase or pay (or
advance or supply funds for the purchase or payment of) such Indebtedness or
other obligation or to purchase (or to advance or supply funds for the purchase
of) any security for the payment thereof, (b) to purchase or lease property,
securities or services for the purpose of assuring the owner of such
Indebtedness or other obligation of the payment thereof, (c) to maintain working
capital, equity capital or any other financial statement condition or liquidity
of the primary obligor so as to enable the primary obligor to pay such
Indebtedness or other obligation or (d) as an account party in respect of any
letter of credit or letter of guaranty issued to support such Indebtedness or
obligation; provided, that the
term Guarantee shall not include endorsements for collection or deposit in
the ordinary course of business.  The amount of any Guarantee of any
guaranteeing Person shall be deemed to be the lower of (A) an amount equal to
the stated or determinable amount of the primary obligation in respect of which
such Guarantee is made and (B) the maximum amount for which such guaranteeing
Person may be liable pursuant to the terms of the instrument embodying such
Guarantee, unless such primary obligation and the maximum amount for which such
guaranteeing Person may be liable are not stated or determinable, in which case
the amount of such Guarantee shall be such guaranteeing Person’s maximum
reasonably anticipated liability (assuming such Person is required to perform)
in respect thereof as determined by such Person in good
faith.
 

    
      
         


      

      
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    “Guaranteed
Obligations” has the meaning assigned to such term in Section
10.01.

     

    “Hazardous
Materials”  means all explosive or radioactive substances or
wastes and all hazardous or toxic substances, wastes or other pollutants,
including petroleum or petroleum distillates, asbestos or asbestos containing
materials, polychlorinated biphenyls, radon gas, infectious or medical wastes
and all other substances or wastes of any nature regulated pursuant to any
Environmental Law.

     

    “Indebtedness”
of any Person means, without duplication, (a) all obligations of such Person for
borrowed money, (b) all obligations of such Person evidenced by bonds,
debentures, notes or similar instruments, (c) all obligations of such Person
upon which interest charges are customarily paid, (d) all obligations of such
Person under conditional sale or other title retention agreements relating to
property acquired by such Person, (e) all obligations of such Person in respect
of the deferred purchase price of property or services (excluding current
accounts payable incurred in the ordinary course of business and accrued
expenses or amounts owed by such Person to employees or officers of such Person
in the ordinary course of business as compensation for services rendered), (f)
all Indebtedness of others secured by any Lien on property owned or acquired by
such Person, whether or not the Indebtedness secured thereby has been assumed,
(g) all Guarantees by such Person of Indebtedness of others as described in
clauses (a) through (f) and (h) through (l) hereof, (h) all Capital Lease
Obligations of such Person, (i) all obligations, contingent or otherwise, of
such Person as an account party in respect of letters of credit and letters of
guaranty, (j) all obligations, contingent or otherwise, of such Person in
respect of bankers’ acceptances, (k) earn-out obligations to the extent
such obligations are liquidated in amount and (l) any other Off-Balance Sheet
Liability.  The Indebtedness of any Person shall include the
Indebtedness of any other entity (including any partnership in which such Person
is a general partner) to the extent such Person is liable therefor as a result
of such Person’s ownership interest in or other relationship with such entity,
except to the extent the terms of such Indebtedness provide that such Person is
not liable therefor.  Notwithstanding anything to the contrary
contained here, “Indebtedness” shall not include the amount of Indebtedness
which is non-recourse to the obligor thereunder or to such Person or for which
recourse is limited to an identified asset shall be equal to the lesser of (i)
the amount of such obligation and (ii) the fair market value of such
asset.

     

    “Indemnified
Taxes” means Taxes other than Excluded Taxes.
 

    
      
         


      

      
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    “Initial
Availability Block
Period”
means the period commencing on the Effective Date and continuing to but
excluding the date of delivery of financial statements for the fiscal quarter
ended September 30, 2011.

     

    “Intercreditor
Agreement” means that certain Intercreditor Agreement dated as of the
date hereof by and among the Administrative Agent, the Notes Agent and the Loan
Parties.

     

    “Interest
Election Request” means a request by the Borrower to convert or continue
a Revolving Borrowing in accordance with Section
2.07.

     

    “Interest
Expense” means, with reference to any period, total interest expense
(including that attributable to Capital Lease Obligations) of the Borrower and
its Subsidiaries for such period with respect to all outstanding Indebtedness of
the Borrower and its Subsidiaries (including all commissions, discounts and
other fees and charges owed with respect to letters of credit and bankers’
acceptance financing and net costs under Swap Agreements in respect of interest
rates to the extent such net costs are allocable to such period as interest
expense in accordance with GAAP), calculated on a consolidated basis for the
Borrower and its Subsidiaries for such period in accordance with
GAAP.

     

    “Interest
Payment Date” means with respect to any CBFR Loan (other than a Swingline
Loan) or Eurodollar Loan, the first Business Day of each calendar month and the
Maturity Date.

     

    “Interest
Period” means with respect to any Eurodollar Borrowing, the period
commencing on the date of such Borrowing and ending on the numerically
corresponding day in the calendar month that is one, two, three or six months
thereafter, as the Borrower may elect; provided, that (a) if
any Interest Period would end on a day other than a Business Day, such Interest
Period shall be extended to the next succeeding Business Day unless, in the case
of a Eurodollar Borrowing only, such next succeeding Business Day would fall in
the next calendar month, in which case such Interest Period shall end on the
next preceding Business Day and (b) any Interest Period pertaining to a
Eurodollar Borrowing that commences on the last Business Day of a calendar month
(or on a day for which there is no numerically corresponding day in the last
calendar month of such Interest Period) shall end on the last Business Day of
the last calendar month of such Interest Period.  For purposes hereof,
the date of a Borrowing initially shall be the date on which such Borrowing is
made and, in the case of a Revolving Borrowing, thereafter shall be the
effective date of the most recent conversion or continuation of such
Borrowing.

     

    “Inventory”
has the meaning assigned to such term in the Security Agreement.

     

    “Investment”
has the meaning assigned to such term in Section
6.04.

     

    “Issuing
Bank” means Chase, in its capacity as the issuer of Letters of Credit
hereunder, and its successors in such capacity as provided in Section
2.06(i).  The Issuing Bank may, in its discretion, arrange for
one or more Letters of Credit to be issued by Affiliates of the Issuing Bank, in
which case the term “Issuing Bank” shall include any such Affiliate with respect
to Letters of Credit issued by such Affiliate.

     

    “Joinder
Agreement” has the meaning assigned to such term in Section
5.11.
 

    
      
         


      

      
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    “Land”
of any Person means all of those plots, pieces or parcels of land now owned,
leased or hereafter acquired or leased or purported to be owned, leased or
hereafter acquired or leased (including, in respect of the Loan Parties, as
reflected in the most recent financial statements of the Borrower) by such
Person, including, without limitation, any quarries.

     

    “LC
Collateral Account” has the meaning assigned to such term in Section
2.06(j).

     

    “LC
Disbursement” means a payment made by the Issuing Bank pursuant to a
Letter of Credit.

     

    “LC
Exposure” means, at any time, the sum of Commercial LC Exposure and
Standby LC Exposure.  The LC Exposure of any Revolving Lender at any
time shall be its Applicable Percentage of the total LC Exposure at such
time.

     

    “Lead
Arrangers” means J.P. Morgan Securities Inc. and Wells Fargo Capital
Finance, LLC.

     

    “Lenders”
means the Persons listed on the Commitment Schedule
and any other Person that shall have become a party hereto pursuant to an
Assignment and Assumption, other than any such Person that ceases to be a party
hereto pursuant to an Assignment and Assumption.  Unless the context
otherwise requires, the term “Lenders” includes the Swingline
Lender.

     

    “Letter of
Credit” means any letter of credit issued pursuant to this
Agreement.

     

    “LIBO
Rate” means, with respect to any Eurodollar Borrowing for any Interest
Period, the rate appearing on Reuters Screen LIBOR01 Page (or on any successor
or substitute page of such Service, or any successor to or substitute for such
Service, providing rate quotations comparable to those currently provided on
such page of such Service, as determined by the Administrative Agent from time
to time for purposes of providing quotations of interest rates applicable to
dollar deposits in the London interbank market) at approximately 11:00 a.m.,
London time, two Business Days prior to the commencement of such Interest
Period, as the rate for dollar deposits with a maturity comparable to such
Interest Period.  In the event that such rate is not available at such
time for any reason, then the “LIBO Rate” with respect to such Eurodollar
Borrowing for such Interest Period shall be the rate at which dollar deposits of
$5,000,000 and for a maturity comparable to such Interest Period are offered by
the principal London office of the Administrative Agent in immediately available
funds in the London interbank market at approximately 11:00 a.m., London time,
two Business Days prior to the commencement of such Interest
Period.

     

    “Lien”
means, with respect to any asset, (a) any mortgage, deed of trust, lien, pledge,
hypothecation, 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.
 

    
      
         


      

      
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    “Loan
Documents” means this Agreement, any promissory notes issued pursuant to
the Agreement, any Letter of Credit applications, the Collateral Documents, the
Loan Guaranty, the Service Agreement, the Intercreditor Agreement and all other
agreements, instruments, documents and certificates identified in Section 4.01 executed
and delivered to, or in favor of, the Administrative Agent or any Lenders and
including all other pledges, powers of attorney, consents, assignments,
contracts, notices, letter of credit agreements and all other written matter
whether heretofore, now or hereafter executed by or on behalf of any Loan Party,
or any employee of any Loan Party, and delivered to the Administrative Agent or
any Lender in connection with the Agreement or the transactions contemplated
thereby.  Any reference in the Agreement or any other Loan Document to
a Loan Document shall include all appendices, exhibits or schedules thereto, and
all amendments, restatements, supplements or other modifications thereto, and
shall refer to the Agreement or such Loan Document as the same may be in effect
at any and all times such reference becomes operative.  In no event
shall any document, instrument or agreement (including any Swap Agreement)
governing any Banking Services, Banking Services Obligations or Swap Obligations
constitute a Loan Document.

     

    “Loan
Guarantor” means each Loan Party (other than the Borrower).

     

    “Loan
Guaranty” means Article X of this
Agreement.

     

    “Loan
Parties” means the Borrower, the Borrower’s Subsidiaries and any other
Person who becomes a party to this Agreement pursuant to a Joinder Agreement and
their successors and assigns.

     

    “Loans”
means the loans and advances made by the Lenders pursuant to this Agreement,
including Swingline Loans, Overadvances and Protective Advances.

     

    “Material
Adverse Effect” means a material adverse effect on (a) the business,
assets, operations, performance or condition, financial or otherwise, of the
Borrower and its Subsidiaries taken as a whole, (b) the ability of any Loan
Party to perform any of its obligations under the Loan Documents to which it is
a party, (c) the Collateral (other than solely by reason of any reduction in the
market value thereof), or the Administrative Agent’s Liens (on behalf of itself
and the Lenders) on the Collateral or the priority of such Liens, or (d) the
rights of or benefits available to the Administrative Agent, the Issuing Bank or
the Lenders thereunder.

     

    “Material
Agreements” has the meaning assigned to such term in Section
3.12.

     

    “Material
Indebtedness” means Indebtedness (other than the Loans and Letters of
Credit), or obligations in respect of one or more Swap Agreements, of any one or
more of the Borrower and its Subsidiaries in an aggregate principal amount
exceeding $2,500,000.  For purposes of determining Material
Indebtedness, the “obligations” of the Borrower or any Subsidiary in respect of
any Swap Agreement at any time shall be, after taking into account the effect of
any netting agreements relating to such Swap Agreement, (a) for any date on or
after the date such Swap Agreement has been closed out and the termination
value determined in accordance therewith, such termination value, and (b) for
any date prior to the date referenced in clause (a), the amount
determined as the mark-to-market value for such Swap Agreement, as determined
based upon the maximum aggregate amount that the Borrower or such Subsidiary
would be required to pay if such Swap Agreement was terminated based upon one or
more mid-market or other readily available quotations provided by any recognized
dealer in such Swap Agreement.
 

    
      
         


      

      
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     “Material
Real Property” means each parcel of Real Property with a net book value
equal to or greater than $700,000.

     

    “Maturity
Date” means August 31, 2014 or any earlier date on which the Commitments
are reduced to zero or otherwise terminated pursuant to the terms
hereof.

     

    “Maximum
Liability” has the meaning assigned to such term in Section
10.10.

     

    “Moody’s”
means Moody’s Investors Service, Inc.

     

    “Mortgages”
means any mortgage, deed of trust or other agreement which conveys or evidences
a Lien in favor of the Administrative Agent, for the benefit of the
Administrative Agent and the Lenders, on Real Property of a Loan Party,
including any amendment, modification or supplement thereto.

     

    “Multiemployer
Plan” means a multiemployer plan as defined in Section 4001(a)(3) of
ERISA.

     

    “Net
Capital Expenditures” means, for any period an amount equal to (a)
Capital Expenditures of the Borrower and its Subsidiaries on a consolidated
basis minus (b)
the net cash proceeds (as reported in the Borrower’s cash flow statement) and/or
trade-in allowance received by the Borrower and its Subsidiaries on a
consolidated basis that are attributed solely to that portion of any asset sale
involving property, plant or equipment and are not required to be applied to the
prepayment of the Senior Notes or deposited, other than on a temporary basis, in
the Asset Sales Proceeds Account (as defined in the Senior Notes
Agreement).

     

    “Net
Income” means, for any period, the consolidated net income (or loss) of
the Borrower and its Subsidiaries, determined on a consolidated basis in
accordance with GAAP; provided that there
shall be excluded (a) the income (or deficit) of any Person accrued prior to the
date it becomes a Subsidiary or is merged into or consolidated with the Borrower
or any of its Subsidiaries, (b) the income (or deficit) of any Person (other
than a Subsidiary) in which the Borrower or any of its Subsidiaries has an
ownership interest, except to the extent that any such income is actually
received by the Borrower or such Subsidiary in the form of dividends or similar
distributions and (c) the undistributed earnings of any Subsidiary to the extent
that the declaration or payment of dividends or similar distributions by such
Subsidiary is not at the time permitted by the terms of any contractual
obligation (other than under any Loan Document) or Requirement of Law applicable
to such Subsidiary.

     

    “Net
Orderly Liquidation Value Inventory Rate” shall mean the orderly
liquidation value (net of estimated costs and expenses incurred in connection
with liquidation) of the Borrowing Base Contributors’ Eligible Inventory as a
percentage of the value of such Eligible Inventory, which percentage shall be
determined by the most recent Appraisal of such Inventory received by the
Administrative Agent.
 

    
      
         


      

      
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    “Net
Orderly Liquidation Value Of Eligible Trucks” means, as of any date of
determination, the orderly liquidation value of the Eligible Trucks of the
Borrowing Base Contributors, net of all estimated costs of liquidation thereof,
which have been appraised pursuant to an Appraisal and are then owned by the
Borrowing Base Contributors as determined by the most recent Appraisal of such
Trucks received by the Administrative Agent.

     

    “Net
Proceeds” means, with respect to any event, (a) the cash proceeds
received in respect of such event including (i) any cash received in respect of
any non-cash proceeds (including any cash payments received by way of deferred
payment of principal pursuant to a note or installment receivable or purchase
price adjustment receivable or otherwise, but excluding any interest payments),
but only as and when received, (ii) in the case of a casualty, cash insurance
proceeds and (iii) in the case of a condemnation or similar event, cash
condemnation awards and similar payments, in each case net of (b) the sum of (i)
all reasonable fees and out-of-pocket costs or expenses paid to third parties
(other than Affiliates) in connection with such event (including, without
limitation, attorneys’ fees, accountants’ fees, investment banking fees, survey
costs, title insurance premiums, and related search and recording charges,
transfer taxes, deed or mortgage recording taxes, other customary expenses and
brokerage, consultant and other customary fees actually incurred in connection
therewith), (ii) in the case of a sale, transfer or other disposition of an
asset (including pursuant to a sale and leaseback transaction or a casualty or a
condemnation or similar proceeding), the amount of all payments required to be
made as a result of such event to repay Indebtedness (other than Loans) secured
by such asset or otherwise subject to mandatory prepayment as a result of such
event, (iii) the amount of all taxes paid (or reasonably estimated to be
payable) and the amount of any reserves or escrows established to fund
contingent liabilities (including indemnification obligations and purchase price
adjustments) reasonably estimated to be payable and (iv) any amount required to
be deposited in the Senior Notes Account pursuant to the terms of the Senior
Notes Agreement, in each case during the year that such event occurred or the
next succeeding year and that are directly attributable to such event (as
determined reasonably and in good faith by a Financial Officer).

     

    “Non-Consenting
Lender” has the
meaning assigned to such term in Section
9.02(d).

     

    “Non-Paying
Guarantor” has the meaning assigned to such term in Section
10.11.

     

    “Non-Recourse
Indebtedness” means Indebtedness:

     

    (a)         as
to which neither the Borrower nor any other Loan Party (i) provides credit
support of any kind (including any undertaking, agreement or instrument that
would constitute Indebtedness), (ii) is directly or indirectly liable as a
primary obligor, guarantor or otherwise, or (iii) constitutes the
lender;

     

    (b)         no
default with respect to which would permit, upon notice, lapse of time or both,
any holder of any other Indebtedness of the Borrower or any other Loan Party to
declare a default on such other Indebtedness or cause the payment of the
Indebtedness to be accelerated or payable prior to its stated maturity;
and
 

    
      
         


      

      
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    (c)         as
to which the Administrative Agent has determined in its sole discretion that the
holder or holders of such Indebtedness will not have any recourse to the stock
or assets of the Borrower or any other Loan Party except for Collateral that
does not constitute Accounts or Inventory.

     

    “Notes
Agent” means U.S. Bank National Association in its capacity as noteholder
collateral agent for the holders of the Senior Notes and its successors and
permitted assigns in such capacity.

     

    “Notes Priority
Collateral” has the meaning assigned to such term in the Intercreditor
Agreement.

     

    “Obligated
Party” has the meaning assigned to such term in Section
10.02.

     

    “Obligations”
means all unpaid principal of and accrued and unpaid interest on the Loans, all
LC Exposure, all accrued and unpaid fees and all expenses, reimbursements,
indemnities and other obligations of the Loan Parties to the Lenders or to any
Lender, the Administrative Agent, the  Issuing Bank or any indemnified
party arising under the Loan Documents.

     

    “Off-Balance
Sheet Liability”
of a Person means (a) any repurchase obligation or liability of such
Person with respect to accounts or notes receivable sold by such Person, (b) any
indebtedness, liability or obligation under any so-called “synthetic lease”
transaction entered into by such Person, or (c) any indebtedness, liability or
obligation arising with respect to any other transaction which is the functional
equivalent of or takes the place of borrowing but which does not constitute a
liability on the balance sheets of such Person (other than operating
leases).

     

    “Other
Taxes” means any and all present or future stamp or documentary taxes or
any other excise or property taxes, charges or similar levies arising from any
payment made hereunder or from the execution, delivery or enforcement of, or
otherwise with respect to, this Agreement.

     

    “Overadvance” has the meaning assigned to
such term in Section
2.05.

     

    “Participant”
has the meaning set forth in Section
9.04.

     

    “Paying
Guarantor” has the meaning assigned to such term in Section
10.11.

     

    “PBGC”
means the Pension Benefit Guaranty Corporation referred to and defined in ERISA
and any successor entity performing similar functions.

     

    “Permitted
Acquisition” means any Acquisition by the Borrower or any Loan Party in a
transaction that satisfies each of the following requirements:

     

    (a)         such
Acquisition is not a hostile or contested Acquisition;
 

    
      
         


      

      
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    (b)          the
business acquired in connection with such Acquisition is not engaged, directly
or indirectly, in any line of business other than the businesses in which the
Borrower or any Loan Party is engaged on the Effective Date and any business
activities that are similar, related, incidental, complementary or corollary
thereto or reasonable extension thereof;

     

    (c)          both
immediately before and immediately after giving effect to such Acquisition and
the Loans (if any) requested to be made in connection therewith, each of the
representations and warranties in the Loan Documents is true and correct in all
material respects (except (i) any such representation or warranty which relates
to a specified prior date, (ii) to the extent the Administrative Agent and the
Lenders have been notified in writing by the Borrower that any representation or
warranty is not correct and the Required Lenders have explicitly waived in
writing compliance with such representation or warranty and (iii) that such
materiality qualifier shall not be applicable to representations and warranties
that are already qualified or modified by materiality in the text
thereof);

     

    (d)          as
soon as available, but in any event sufficiently prior to such Acquisition to
allow the Administrative Agent adequate time to review the information provided
to the Lenders under clause (ii) below, for
Acquisitions with a purchase price greater than $1,000,000, the Borrower shall
provide the Administrative Agent (i) notice of such Acquisition and (ii) a copy
of all business and financial information reasonably requested by the
Administrative Agent including pro forma financial statements, statements of
cash flow, and Availability projections;

     

    (e)          prior
to inclusion of the Accounts, Inventory and Trucks acquired in connection with
such Acquisition in the determination of the Borrowing Base, the Administrative
Agent shall have conducted an Appraisal of such Inventory and, if reasonably
requested by the Administrative Agent, of such Trucks and an audit and field
examination of such Accounts to its satisfaction, any applicable Reserves have
been established, and all appropriate lien filings and collateral documentation
have been duly completed, executed and delivered to the Administrative Agent, in
each case, to the extent required by, and in accordance with, the Loan
Documents;

     

    (f)           if
such Acquisition is an Acquisition of the Equity Interests of a Person, such
Acquisition (i) is structured so that the acquired Person shall become a
wholly-owned subsidiary of a Loan Party pursuant to the terms of this Agreement,
and (ii) will not result in any violation of Regulation U;

     

    (g)          Borrower
or any Loan Guarantor shall not, as a result of or in connection with any such
Acquisition, assume or incur any direct or contingent liabilities (whether
relating to environmental, tax, litigation, or other matters) that could
reasonably be expected to have a Material Adverse Effect;

     

    (h)          in
connection with an Acquisition of the Equity Interests in any Person, all Liens
on property of such Person shall be terminated unless permitted pursuant to the
Loan Documents, or the Administrative Agent in its Permitted Discretion consents
otherwise, and in connection with an Acquisition of the assets of any Person,
all Liens on such assets shall be terminated unless permitted pursuant to the
Loan Documents;
 

    
      
         


      

      
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    (i)           for
any Acquisition consummated on or after October 1, 2011, the Fixed Charge
Coverage Ratio (after giving effect to such Acquisition) shall be greater than
or equal to 1.0 to 1.0 for the most recent trailing twelve month period
(calculated on a Pro Forma Basis) (including synergies and other costs savings
which are demonstrated and verifiable to the satisfaction of the Administrative
Agent)) and assuming that for purposes of calculating such Fixed Charge Coverage
Ratio for such period, such Acquisition and any Indebtedness and related
interest expense incurred in connection therewith occurred on the first day of
such applicable period;

     

    (j)           the
Borrower shall certify (and provide the Administrative Agent with projected
calculations in form and substance reasonably satisfactory to the Administrative
Agent), on its behalf and on behalf of the Loan Parties, to the Administrative
Agent and the Lenders that, immediately after giving effect to the completion of
such Acquisition, Availability will not be less than $15,000,000 if there is an
Availability Block in effect, or $25,000,000 if there is no Availability Block
in effect, such Availability in each case to be determined (assuming all past
due accounts payable of the Loan Parties have been paid in full in
cash);

     

    (k)          the
gross purchase price for all Acquisitions permitted hereby shall not exceed
$5,000,000 per year or $15,000,000 in the aggregate (excluding any portion of a
purchase price paid with (i) the cash proceeds received from an Equity Issuance
made after the Effective Date, (ii) Equity Interests of the Borrower or (iii)
Non-Recourse Indebtedness in an amount not to exceed $10,000,000, provided that
the purchase price paid pursuant to the foregoing clauses (i),
(ii) and (iii) shall not
exceed $50,000,000 in the aggregate and may not consist of proceeds from any
convertible debt); and

     

    (l)           no
Default or Event of Default exists or would result therefrom.

     

    “Permitted
Discretion” means a determination made in good faith and in the exercise
of reasonable (from the perspective of a secured asset-based lender) business
judgment.

     

    “Permitted
Investments”
means:

     

    (a)          direct
obligations of, or obligations the principal of and interest on which are
unconditionally guaranteed by, the United States of America (or by any agency
thereof to the extent such obligations are backed by the full faith and credit
of the United States of America), in each case maturing within one year from the
date of acquisition thereof;

     

    (b)          investments
in commercial paper maturing within 270 days from the date of acquisition
thereof and having, at such date of acquisition, the highest credit rating
obtainable from S&P or from Moody’s;

     

    (c)          investments
in certificates of deposit, banker’s acceptances and time deposits maturing
within 180 days from the date of acquisition thereof issued or guaranteed by or
placed with, and money market deposit accounts issued or offered by, any
domestic office of any commercial bank organized under the laws of the United
States of America or any State thereof which has a combined capital and surplus
and undivided profits of not less than $500,000,000;

     

    (d)          fully
collateralized repurchase agreements with a term of not more than 30 days for
securities described in clause (a) above and entered into with a financial
institution satisfying the criteria described in clause (c) above;
and
 

    
      
         


      

      
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    (e)          money
market funds that (i) comply with the criteria set forth in Securities and
Exchange Commission Rule 2a-7 under the Investment Company Act of 1940, (ii) are
rated AAA by S&P and Aaa by Moody’s and (iii) have portfolio assets of at
least $5,000,000,000.

     

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

     

    “Plan”
means any employee pension benefit plan (other than a Multiemployer Plan)
subject to the provisions of Title IV of ERISA or Section 412 of the
Code or Section 302 of ERISA, and in respect of which the Borrower or any
ERISA Affiliate is (or, if such plan were terminated, would under
Section 4069 of ERISA be deemed to be) an “employer” as defined in
Section 3(5) of ERISA.

     

    “Prepayment
Event” means:

     

    (a)         any
sale, transfer or other disposition (including pursuant to a sale and leaseback
transaction) of any property or asset of any Loan Party, other than dispositions
described in Section
6.05(a), (b), (c), (d), (e), (except as
provided in clause (b) below)
(f), (h), (j), (k) or (m);
or

     

    (b)         any
casualty or other insured damage to, or any taking under power of eminent domain
or by condemnation or similar proceeding of, any property or asset of any Loan
Party, with a fair market value immediately prior to such event equal to or
greater than $500,000; or

     

    (c)         the
issuance by the Borrower of any Equity Interests, or the receipt by the Borrower
of any capital contribution, other than any Excluded Issuances; or

     

    (d)         the
incurrence by any Loan Party of any Indebtedness, other than Indebtedness
permitted under Section
6.01.

     

    “Prime
Rate” means the rate of interest per annum publicly announced from time
to time by Chase as its prime rate at its offices at 270 Park Avenue in New
York City; each change in the Prime Rate shall be effective from and including
the date such change is publicly announced as being effective.

     

    “Pro Forma
Basis” means, whenever pro forma effect is to be given to any Permitted
Acquisition, all components of such calculations shall be adjusted to include or
exclude, as the case may be, without duplication, such components of such
calculations attributable to any business or assets that have been acquired by
the Borrower or any of its Subsidiaries (including through Permitted
Acquisitions) after the first day of the applicable period of determination and
prior to the end of such period and made on a basis that is consistent with
Article 11 of Regulation S-X under the Securities Act and shall include, for the
avoidance of doubt, synergies, operating improvements, operating expense
reductions and other cost savings to the extent allowable, calculated in
accordance with Article 11 of Regulation S-X under the Securities Act and is in
a manner reasonably acceptable to the Administrative Agent.

     

    “Projections”
has the meaning assigned to such term in Section
5.01(f).

     

    
      
         


      

      
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    “Protective
Advance” has the meaning assigned to such term in Section
2.04.

     

    “Real
Property” of any Person means the fee owned Land of such Person, together
with the right, title and interest of such Person, if any, in and to the
streets, the Land lying in the bed of any streets, roads or avenues, opened or
proposed, in front of, the air space and development rights pertaining to the
Land and the right to use such air space and development rights, all rights of
way, privileges, liberties, tenements, hereditaments and appurtenances belonging
or in any way appertaining thereto, all fixtures, all easements now or hereafter
benefiting the Land and all royalties and rights appertaining to the use and
enjoyment of the Land, including all alley, vault, drainage, mineral, water, oil
and gas rights, together with all of the buildings and other improvements now or
hereafter erected on the Land and any fixtures appurtenant thereto.

     

    “Register”
has the meaning set forth in Section
9.04.

     

    “Related
Parties” means, with respect to any specified Person, such Person’s
Affiliates and the respective directors, officers, employees, agents and
advisors of such Person and such Person’s Affiliates.

     

    “Reorganization
Plan” means that certain Joint Plan of Reorganization of U.S. Concrete,
Inc., et al., Pursuant to Chapter 11 of the Bankruptcy Code dated
July 27, 2010 (as amended, supplemented or modified from time to
time).

     

    “Report”
means reports prepared by the Administrative Agent or another Person showing the
results of appraisals, field examinations or audits pertaining to the assets of
the Borrowing Base Contributors from information furnished by or on behalf of
the Borrowing Base Contributors, after the Administrative Agent has exercised
its rights of inspection pursuant to this Agreement, which Reports may be
distributed to the Lenders by the Administrative Agent.

     

    “Required
Lenders” means, at any time, Lenders (other than Defaulting Lenders)
having Credit Exposure and unused Commitments representing more than 50% of the
sum of the total Credit Exposure and unused Commitments at such time; provided that, as
long as there are less than three (3) unaffiliated Lenders, Required Lenders
shall mean all of the Lenders.

     

    “Requirement
of Law” means, as to any Person, the Certificate of Incorporation and
By-Laws or other organizational or governing documents of such Person, and any
law, treaty, rule or regulation or determination of an arbitrator or a court or
other Governmental Authority, in each case applicable to or binding upon such
Person or any of its property or to which such Person or any of its property is
subject.

     

    “Reserves”
means any and all reserves which the Administrative Agent deems necessary, in
its Permitted Discretion, to maintain (including, without limitation, reserves
for accrued and unpaid interest on the Secured Obligations, Banking Services
Reserves, volatility reserves, reserves for rent at locations leased by any Loan
Party and for consignee’s, warehousemen’s and bailee’s charges, reserves for
dilution of Accounts, reserves for Inventory shrinkage, reserves for customs
charges and shipping charges related to any Inventory in transit, reserves for
vehicle licenses, registration fees and other permits, reserves for Swap
Obligations, reserves for contingent liabilities of any Loan Party, reserves for
uninsured losses of any Loan Party, reserves for uninsured, underinsured,
un-indemnified or under-indemnified liabilities or potential liabilities with
respect to any litigation, reserves for accrued and unpaid professional fees
incurred in connection with the Reorganization Plan and reserves for taxes,
fees, assessments, and other governmental charges) with respect to the
Collateral or any Loan Party.
 

    
      
         


      

      
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    “Responsible
Officer” means the chief executive officer, president, vice president,
chief financial officer, treasurer or assistant treasurer or other similar
officer of a Loan Party with responsibility for the administration of the
obligations of such entity in respect of this Agreement.

     

    “Restricted
Payment” means any dividend or other distribution (whether in cash,
securities or other property) with respect to any Equity Interests in the
Borrower or any Subsidiary, or any payment (whether in cash, securities or other
property), including any sinking fund or similar deposit, on account of the
purchase, redemption, retirement, acquisition, cancellation or termination of
any such Equity Interests in the Borrower.

     

    “Revolving
Commitment” means, with respect to each Lender, the commitment, if any,
of such Lender to make Revolving Loans and to acquire participations in Letters
of Credit, Protective Advances, Overadvances and Swingline Loans hereunder,
expressed as an amount representing the maximum possible aggregate amount of
such Lender’s Revolving Exposure hereunder, as such commitment may be reduced or
increased from time to time pursuant to (a) Section 2.09 and (b)
assignments by or to such Lender pursuant to Section
9.04.  The initial amount of each Lender’s Revolving Commitment
is set forth on the Commitment Schedule,
or in the Assignment and Assumption pursuant to which such Lender shall have
assumed its Revolving Commitment, as applicable.  The initial
aggregate amount of the Lenders’ Revolving Commitments is
$75,000,000.

     

    “Revolving
Exposure” means, with respect to any Lender at any time, the sum of (a)
the outstanding principal amount of such Lender’s Revolving Loans and its LC
Exposure and (b) an amount equal to such Lender’s Applicable Percentage of the
aggregate principal amount of Swingline Loans, Protective Advances and
Overadvances outstanding at such time.

     

    “Revolving
Lender” means, as of any date of determination, a Lender with a Revolving
Commitment or, if the Revolving Commitments have terminated or expired, a Lender
with Revolving Exposure.

     

    “Revolving
Loan” means a Loan made pursuant to Section
2.01(a).

     

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

     

    “Secured
Parties” means the Lenders, the Issuing Bank, the Administrative Agent
and any other holder of any Secured Obligation.

     

    “Secured
Obligations” means all Obligations, together with all (a) Banking
Services Obligations and (b) Swap Obligations owing to one or more Lenders or
their respective Affiliates (which, in the case of an Affiliate of a Lender, are
or were incurred during the period in which such Lender is a Lender); provided that at or
prior to the time that any transaction relating to such Swap Obligation is
executed, the Lender party thereto (other than Chase) shall have delivered
written notice to the Administrative Agent that such a transaction has been
entered into and that it constitutes a Secured Obligation entitled to the
benefits of the Collateral Documents.
 

    
      
         


      

      
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    “Security
Agreement” means that certain Pledge and Security Agreement, dated as of
the date hereof, between the Loan Parties and the Administrative Agent, for the
benefit of the Administrative Agent and the Lenders, and any other pledge or
security agreement entered into, after the date of this Agreement by any other
Loan Party (as required by this Agreement or any other Loan Document), or any
other Person, as the same may be amended, restated or otherwise modified from
time to time.

     

    “Senior
Notes” means the $55,000,000 in principal amount of senior secured
convertible notes issued on or about the Effective Date in a private placement
pursuant to Section 4(2) and Regulation D of the Exchange
Act.

     

    “Senior
Notes Account” means the “Asset Sale Proceeds Account” as defined in the
Senior Notes Agreement.

     

    “Senior
Notes Agreement” means that certain Indenture by and among the Notes
Agent, the Trustee, the Loan Parties and the purchasers of the Senior
Notes.

     

    “Senior
Notes Documents” means the Senior Notes Agreement and the “Note
Documents” under and as defined in the Senior Notes Agreement.

     

    “Service
Agreement” means that certain Service Agreement dated as of the Effective
Date between the Administrative Agent and the Servicer relating to the
certificates of title for those Trucks included in the Borrowing Base
Collateral.

     

    “Servicer”
means On The Go Transportation Services, Inc.

     

    “Settlement” has the meaning assigned to
such term in Section
2.05(d).

     

    “Settlement
Date” has the
meaning assigned to such term in Section
2.05(d).

     

    “Standby
LC Exposure” means, at any time, the sum of (a) the aggregate undrawn
amount of all outstanding standby Letters of Credit at such time plus (b) the
aggregate amount of all LC Disbursements relating to standby Letters of Credit
that have not yet been reimbursed by or on behalf of the Borrower at such
time.  The Standby LC Exposure of any Revolving Lender at any time
shall be its Applicable Percentage of the total Standby LC Exposure at such
time.

     

    “Statutory
Reserve Rate” means a fraction (expressed as a decimal), the numerator of
which is the number one and the denominator of which is the number one minus
the aggregate of the maximum reserve percentages (including any marginal,
special, emergency or supplemental reserves) expressed as a decimal established
by the Board to which the Administrative Agent is subject with respect to the
Adjusted LIBO Rate, for eurocurrency funding (currently referred to as
“Eurocurrency Liabilities” in Regulation D of the Board).  Such
reserve percentages shall include those imposed pursuant to such Regulation
D.  Eurodollar Loans shall be deemed to constitute eurocurrency
funding and to be subject to such reserve requirements without benefit of or
credit for proration, exemptions or offsets that may be available from time to
time to any Lender under such Regulation D or any comparable
regulation.  The Statutory Reserve Rate shall be adjusted
automatically on and as of the effective date of any change in any reserve
percentage.
 

    
      
         


      

      
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    “Subordinated
Indebtedness” of a Person means any Indebtedness of such Person the
payment of which is subordinated to payment of the Secured Obligations to the
written satisfaction of the Administrative Agent.

     

    “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.

     

    “Subsidiary”
means any direct or indirect subsidiary of the Borrower or a Loan Party, as
applicable; provided that the Excluded Joint Venture shall not be a “Subsidiary”
with respect to any Person.

     

    “Supermajority
Revolving Lenders”
means, at any time, Lenders, other than Defaulting Lenders, having
Revolving Exposure and unused Revolving Commitments representing more than 75%
of the sum of the total Revolving Exposure and unused Revolving Commitments at
such time.

     

    “Swap
Agreement” means any agreement 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; provided that no
phantom stock or similar plan providing for payments only on account of services
provided by current or former directors, officers, employees or consultants of
the Borrower or the Subsidiaries shall be a Swap Agreement.

     

    “Swap
Obligations” of a Person means any and all obligations of such Person,
whether absolute or contingent and howsoever and whensoever created, arising,
evidenced or acquired (including all renewals, extensions and modifications
thereof and substitutions therefor), under (a) any and all Swap Agreements, and
(b) any and all cancellations, buy backs, reversals, terminations or assignments
of any Swap Agreement transaction.

     

    “Swingline
Exposure” means, at any time, the sum of the aggregate undrawn amount of
all outstanding Swingline Loans at such time.  The Swingline Exposure
of any Revolving Lender at any time shall be its Applicable Percentage of the
total Swingline Exposure at such time.
 

    
      
         


      

      
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    “Swingline
Lender” means JPMorgan Chase Bank, N.A., in its capacity as lender of
Swingline Loans hereunder and any successor thereto.

     

    “Swingline
Loan” has the meaning assigned to such term in Section
2.05(a).

     

    “Taxes”
means any and all present or future taxes, levies, imposts, duties, deductions,
charges or withholdings imposed by any Governmental Authority.

     

    “Transactions”
means the execution, delivery and performance by the Borrower of this Agreement,
the borrowing of Loans and other credit extensions, the use of the proceeds
thereof and the issuance of Letters of Credit hereunder.

     

    “Trucks”
means, with respect to each Borrowing Base Contributor, the ready-mix concrete
trucks and the mixing drums affixed thereto owned by such Borrowing Base
Contributor.

     

    “Trustee” means U.S. Bank National
Association in its capacity as trustee for the holders of the Senior Notes and
its successors and permitted assigns in such capacity.

     

    “Type”,
when used in reference to any Loan or Borrowing, refers to whether the rate of
interest on such Loan, or on the Loans comprising such Borrowing, is determined
by reference to the Adjusted LIBO Rate or the CB Floating Rate.

     

    “UCC”
means the Uniform Commercial Code as in effect from time to time in the State of
New York or any other state the laws of which are required to be applied in
connection with the issue of perfection of security interests.

     

    “Unfunded
Pension Liability” means, with respect to the Borrower or any of its
ERISA Affiliates at any time, the sum of (a) the amount, if any, by which the
present value of all accrued benefits under each Plan exceeds the fair market
value of all assets of such Plan allocable to such benefits in accordance with
Title IV of ERISA, as determined as of the most recent valuation date for such
Plan using the actuarial assumptions pursuant to Section 412 of the Code or
Section 302 of ERISA in effect under such Plan, (b) the aggregate amount of
withdrawal liability that could be assessed under Section 4063 with respect
to each Plan subject to such section, separately calculated for each such Plan
as of its most recent valuation date and (c) for a period of five years
following a transaction reasonably likely to be covered by Section 4069 of
ERISA, the liabilities (whether or not accrued) that could be avoided by the
Borrower, any of its Subsidiaries or any ERISA Affiliate as a result of
such transaction.

     

    “Unliquidated
Obligations” means, at any time, any Secured Obligations (or portion
thereof) that are contingent in nature or unliquidated at such time, including
any Secured Obligation that is:  (a) an obligation to reimburse a bank
for drawings not yet made under a letter of credit issued by it; (b) any other
obligation (including any guarantee) that is contingent in nature at such time;
or (c) an obligation to provide collateral to secure any of the foregoing types
of obligations.
 

    
      
         


      

      
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    “Withdrawal
Liability” means, with respect to the Borrower or any of its Subsidiaries
or any ERISA Affiliate of the Borrower or any of its Subsidiaries at any time,
the liability to a Multiemployer Plan as a result of a complete or partial
withdrawal from such Multiemployer Plan, the terms “complete” or “partial”
withdrawal of which are defined in Part I of Subtitle E of Title IV of
ERISA.

     

    “Withholding
Agent” means the Borrower, any Loan Party or the Administrative
Agent.

     

    Section
1.02      Classification of Loans and
Borrowings.  For purposes of this Agreement, Loans may be
classified and referred to by Class (e.g., a “Revolving
Loan”) or by Type (e.g., a “Eurodollar
Loan”) or by Class and Type (e.g., a “Eurodollar
Revolving Loan”).  Borrowings also may be classified and referred to
by Class (e.g.,
a “Revolving Borrowing”) or by Type (e.g., a “Eurodollar
Borrowing”) or by Class and Type (e.g., a “Eurodollar
Revolving Borrowing”).

     

    Section
1.03      Terms
Generally.  The definitions of terms herein shall apply equally
to the singular and plural forms of the terms defined.  Whenever the
context may require, any pronoun shall include the corresponding masculine,
feminine and neuter forms.  The words “include”, “includes” and
“including” shall be deemed to be followed by the phrase “without
limitation”.  The word “will” shall be construed to have the same
meaning and effect as the word “shall”.  Unless the context requires
otherwise (a) any definition of or reference to any 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,
supplemented or otherwise modified, renewed or extended (subject to any
restrictions on such amendments, supplements or modifications set forth herein),
(b) any reference herein to any Person shall be construed to include such
Person’s successors and permitted assigns and, in the case of any Governmental
Authority, any other Governmental Authority that shall have succeeded to any or
all of the functions thereof, (c) the words “herein”, “hereof” and “hereunder”,
and words of similar import, shall be construed to refer to this Agreement in
its entirety and not to any particular provision hereof, (d) all references
herein to Articles, Sections, Exhibits and Schedules shall be construed to refer
to Articles and Sections of, and Exhibits and Schedules to, this Agreement, (e)
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, (f) all
references to “knowledge” of any Loan Party means the actual knowledge of any
Responsible Officer of such Loan Party and (g) references to any law shall
include all statutory and regulatory provisions consolidating, amending,
replacing, supplementing or interpreting such law (including by succession of
comparable successor laws).

     

    Section
1.04      Accounting Terms;
GAAP.  Except as otherwise expressly provided herein, all terms
of an accounting or financial nature shall be construed in accordance with GAAP,
as in effect from time to time; provided that, if the
Borrower notifies the Administrative Agent that the Borrower requests an
amendment to any provision hereof to eliminate the effect of any change
occurring after the date hereof in GAAP or in the application thereof on the
operation of such provision (or if the Administrative Agent notifies the
Borrower that the Required Lenders request an amendment to any provision hereof
for such purpose), regardless of whether any such notice is given before or
after such change in GAAP or in the application thereof, then such provision
shall be interpreted on the basis of GAAP as in effect and applied immediately
before such change shall have become effective until  such notice
shall have been withdrawn or such provision  amended in accordance
herewith.
 

    
      
         


      

      
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    Section
1.05       Times of
Day.

     

    Unless
otherwise specified, all references herein to times of day shall be references
to Central time (daylight or standard, as applicable).

    


    Section
1.06       Timing of Payment of
Performance.

     

    When the
payment of any obligation or the performance of any covenant, duty or obligation
is stated to be due or performance required on a day which is not a Business
Day, the date of such payment (other than as described in the definition of
Interest Period) or performance shall extend to the immediately succeeding
Business Day.

    


    Section
1.07       Certifications.

     

    All
certifications to be made hereunder by an officer or representative of a Loan
Party shall be made by such person in his or her capacity solely as an officer
or a representative of such Loan Party, on such Loan Party’s behalf and not in
such Person’s individual capacity.

    
 

    ARTICLE
II


     

    The
Credits

     

    Section
2.01      Commitments.  Subject
to the terms and conditions set forth herein, each Lender agrees to make (a)
Revolving Loans to the Borrower from time to time during the Availability Period
in an aggregate principal amount that will not result in (i) such Lender’s
Revolving Exposure exceeding such Lender’s Revolving Commitment or (ii) the
total Revolving Exposures exceeding (x) the lesser of the total Revolving
Commitments or the Borrowing Base, minus
(y) the Availability Block, subject to the Administrative Agent’s authority, in
its sole discretion, to make Protective Advances and Overadvances pursuant to
the terms of Section
2.04 and Section
2.05.  Within the foregoing limits and subject to the terms and
conditions set forth herein, the Borrower may borrow, prepay and reborrow
Revolving Loans without premium or penalty.

     

    Section
2.02      Loans and
Borrowings.  (a) Each Loan (other than a Swingline Loan) shall
be made as part of a Borrowing consisting of Loans of the same Class and Type
made by the Lenders ratably in accordance with their respective Commitments of
the applicable Class.  Any Protective Advance, any Overadvance and any
Swingline Loan shall be made in accordance with the procedures set forth in
Section 2.04
and Section
2.05.

     

    (b)        Subject
to Section
2.14, each Revolving Borrowing shall be comprised entirely of CBFR Loans
or Eurodollar Loans as the Borrower may request in accordance herewith, provided that all
Borrowings made on the Effective Date must be made as CBFR Borrowings but may be
converted into Eurodollar Borrowings in accordance with Section 2.08. Each
Swingline Loan shall be a CBFR Loan.  Each Lender at its option may
make any Eurodollar Loan by causing any domestic or foreign branch or Affiliate
of such Lender to make such Loan; provided that any
exercise of such option shall not affect the obligation of the Borrower to repay
such Loan in accordance with the terms of this Agreement and shall be subject to
Section
2.19.

     

    
      
        
        

      

      
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    (c)    
    At the commencement of each Interest Period for any
Eurodollar Revolving Borrowing, such Borrowing shall be in an aggregate amount
that is an integral multiple of $500,000 and not less than
$1,000,000.  CBFR Revolving Borrowings may be in any
amount.  Borrowings of more than one Type and Class may be outstanding
at the same time; provided that there
shall not at any time be more than a total of six Eurodollar Borrowings
outstanding.
 

    (d)          Notwithstanding
any other provision of this Agreement, the Borrower shall not be entitled to
request, or to elect to convert or continue, any Borrowing if the Interest
Period requested with respect thereto would end after the Maturity
Date.

     

    Section
2.03        Requests for Revolving
Borrowings.  To request a Revolving Borrowing, the Borrower
shall notify the Administrative Agent of such request either in writing
(delivered by hand, facsimile or electronic transmission) in a form approved by
the Administrative Agent and signed by the Borrower or by telephone (a) in the
case of a Eurodollar Borrowing, not later than 11:00 a.m. three Business Days
before the date of the proposed Borrowing or (b) in the case of a CBFR Borrowing
(other than a Swingline Loan for which the deadline will be 1:00 p.m. rather
than noon), not later than noon on the date of the proposed Borrowing; provided that any
such notice of a CBFR Revolving Borrowing to finance the reimbursement of an LC
Disbursement as contemplated by Section 2.06(e) may
be given not later than 11:00 a.m. on the date of the proposed
Borrowing.  Each such telephonic Borrowing Request shall be
irrevocable and shall be confirmed promptly by hand delivery or facsimile to the
Administrative Agent of a written Borrowing Request in a form approved by the
Administrative Agent and signed by the Borrower.  Each such telephonic
and written Borrowing Request shall specify the following information in
compliance with Section
2.01:

     

    (i)           the
aggregate amount of the requested Borrowing and a breakdown of the separate
wires comprising such Borrowing;

     

    (ii)          the
date of such Borrowing, which shall be a Business Day;

     

    (iii)         whether
such Borrowing is to be a CBFR Borrowing or a Eurodollar Borrowing;
and

     

    (iv)         in
the case of a Eurodollar Borrowing, the initial Interest Period to be applicable
thereto, which shall be a period contemplated by the definition of the term
“Interest
Period.”

     

    If no
election as to the Type of Revolving Borrowing is specified, then the requested
Revolving Borrowing shall be a CBFR
Borrowing.  If no Interest Period is specified with respect to any
requested Eurodollar Revolving Borrowing, then the Borrower shall be deemed to
have selected an Interest Period of one month’s duration.  Promptly
following receipt of a Borrowing Request in accordance with this Section, the
Administrative Agent shall advise each Lender of the details thereof and of the
amount of such Lender’s Loan to be made as part of the requested
Borrowing.
 

    
      
         


      

      
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    Section
2.04         Protective
Advances.  (a) Subject to the limitations set forth below, the
Administrative Agent is authorized by the Borrower and the Lenders, from time to
time in the Administrative Agent’s sole discretion (but shall have absolutely no
obligation), to make Loans to the Borrower, on behalf of all Lenders, which the
Administrative Agent, in its Permitted Discretion, deems necessary or desirable
(i) to preserve or protect the Collateral, or any portion thereof, (ii) to
enhance the likelihood of, or maximize the amount of, repayment of the Loans and
other Obligations, or (iii) to pay any other amount chargeable to or required to
be paid by the Borrower pursuant to the terms of this Agreement to the extent
then due, including payments of reimbursable expenses (including costs, fees,
and expenses as described in Section 9.03) and
other sums payable under the Loan Documents (any of such Loans are herein
referred to as “Protective
Advances”); provided that, the
aggregate principal amount of Protective Advances and Overadvances outstanding
at any time shall not at any time exceed $7,500,000; provided further
that, the aggregate principal amount of outstanding Protective Advances plus
the aggregate Revolving Exposure shall not exceed the aggregate Revolving
Commitments.  Protective Advances may be made even if the conditions
precedent set forth in Section 4.02 have not
been satisfied.  The Protective Advances shall be secured by the Liens
in favor of the Administrative Agent in and to the Collateral pursuant to the
Loan Documents and shall constitute Secured Obligations
hereunder.  All Protective Advances shall be CBFR
Borrowings.  The Administrative Agent’s authorization to make
Protective Advances may be revoked at any time by the Required
Lenders.  Any such revocation must be in writing and shall become
effective prospectively upon the Administrative Agent’s and Borrower’s receipt
thereof.  At any time that there is sufficient Availability and the
conditions precedent set forth in Section 4.02 have
been satisfied, the Administrative Agent may request the Revolving Lenders to
make a Revolving Loan to repay a Protective Advance.  At any other
time the Administrative Agent may require the Lenders to fund their risk
participations described in Section
2.04(b).

     

    (b)           Upon
the making of a Protective Advance by the Administrative Agent (whether before or after
the occurrence of a Default), each Lender shall be deemed, without further
action by any party hereto, to have unconditionally and irrevocably purchased
from the Administrative Agent without recourse or warranty, an undivided
interest and participation in such Protective Advance in proportion to its
Applicable Percentage.  From and after the date, if any, on which any
Lender is required to fund its participation in any Protective Advance purchased
hereunder, the Administrative Agent shall promptly distribute to such Lender,
such Lender’s Applicable Percentage of all payments of principal and interest
and all proceeds of Collateral received by the Administrative Agent in respect
of such Protective Advance.

     

    Section
2.05         Swingline Loans and
Overadvances.  (a)
The Administrative Agent, the Swingline Lender and the Revolving Lenders agree
that in order to facilitate the administration of this Agreement and the other
Loan Documents, promptly after the Borrower requests a CBFR Borrowing, the
Swingline Lender may elect to have the terms of this Section 2.05(a) apply
to such Borrowing Request by advancing, on behalf of the Revolving Lenders and
in the amount requested, same day funds to the Borrower on the applicable
Borrowing date to the Funding Account (each such Loan made solely by the
Swingline Lender pursuant to this Section 2.05(a) is
referred to in this Agreement as a “Swingline Loan”),
with settlement among them as to the Swingline Loans to take place on a periodic
basis as set forth in Section
2.05(d).  Each Swingline Loan shall be subject to all the terms
and conditions applicable to other CBFR Loans funded by the Revolving Lenders,
except that all payments thereon shall be payable to the Swingline Lender solely
for its own account. In addition, the Borrower hereby authorizes the
Swingline Lender to, and the Swingline Lender shall, subject to the terms and
conditions set forth herein (but without any further written notice required),
not later than 4:30 p.m. on each Business Day, make available to the Borrower by
means of a credit to the Funding Account, the proceeds of a Swingline Loan to
the extent necessary to pay items to be drawn on any Controlled Disbursement
Account that day (as determined based on notice from the Administrative
Agent).  The aggregate amount of Swingline Loans outstanding at any
time shall not exceed $7,500,000.  The Swingline Lender shall not make
any Swingline Loan if the requested Swingline Loan exceeds Availability (before
giving effect to such Swingline Loan).  All Swingline Loans shall be
CBFR Borrowings.
 

    
      
         


      

      
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    (b)          Any
provision of this Agreement to the contrary notwithstanding, at the request of
the Borrower, the Administrative Agent may in its sole discretion (but with
absolutely no obligation), make Revolving Loans to the Borrower, on behalf of
the Revolving Lenders, in amounts that exceed Availability (any such excess
Revolving Loans are herein referred to collectively as “Overadvances”);
provided that,
no Overadvance shall result in a Default due to Borrower’s request for such
Overadvance or failure to repay unless then due in accordance with this Section 2.05 for
so long as such Overadvance remains outstanding in accordance with the terms of
this paragraph, but solely with respect to the amount of such
Overadvance.  In addition, Overadvances may be made even if the
condition precedent set forth in Section 4.02(c) has
not been satisfied.  All Overadvances shall constitute CBFR
Borrowings.  The authority of the Administrative Agent to make
Overadvances is limited to the extent that the aggregate principal amount
of Protective Advances and Overadvances outstanding at any time shall not at any
time exceed $7,500,000; provided that, each
Overadvance shall mature and be due on the earlier of the Maturity Date, demand
by the Administrative Agent and thirty days after such Overadvance is made, and
no Overadvance shall cause any Revolving Lender’s Revolving Exposure to exceed
its Revolving Commitment; further provided, that the Required
Lenders may at any time revoke the Administrative Agent’s authorization to make
Overadvances.  Any such revocation must be in writing and shall become
effective prospectively upon the Administrative Agent’s receipt
thereof.

     

    (c)          Upon
the making of a Swingline Loan or an Overadvance by the Administrative
Agent (whether before or after the occurrence of a Default and regardless
of whether a Settlement has been requested with respect to such Swingline Loan
or Overadvance), each Revolving Lender shall be deemed, without further action
by any party hereto, to have unconditionally and irrevocably purchased from the
Swingline Lender or the Administrative Agent, as the case may be, without
recourse or warranty, an undivided interest and participation in such Swingline
Loan or Overadvance in proportion to its Applicable Percentage of the Revolving
Commitment.  The Swingline Lender or the Administrative Agent may, at
any time, require the Revolving Lenders to fund their participations. From and
after the date, if any, on which any Revolving Lender is required to fund its
participation in any Swingline Loan or Overadvance purchased hereunder, the
Administrative Agent shall promptly distribute to such Lender, such Lender’s
Applicable Percentage of all payments of principal and interest and all proceeds
of Collateral received by the Administrative Agent in respect of such
Loan.
 

    
      
         


      

      
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    (d)          The
Administrative Agent, on behalf of the Swingline Lender, shall request
settlement (a “Settlement”) with the
Revolving Lenders on at least a weekly basis or on any date that the
Administrative Agent elects, by notifying the Revolving Lenders of such
requested Settlement by facsimile, telephone, or e-mail no later than 12:00 p.m.
on the date of such requested Settlement (the “Settlement
Date”).  Each Revolving Lender (other than the Swingline
Lender, in the case of the Swingline Loans) shall transfer the amount of such
Revolving Lender’s Applicable Percentage of the outstanding principal amount of
the applicable Loan with respect to which Settlement is requested to the
Administrative Agent, to such account of the Administrative Agent as the
Administrative Agent may designate, not later than 2:00 p.m. on such Settlement
Date.  Settlements may occur during the existence of a Default and
whether or not the applicable conditions precedent set forth in Section 4.02 have
then been satisfied.  Such amounts transferred to the Administrative
Agent shall be applied against the amounts of the Swingline Lender’s Swingline
Loans and, together with Swingline Lender’s Applicable Percentage of such
Swingline Loan, shall constitute Revolving Loans of such Revolving Lenders,
respectively.  If any such amount is not transferred to the
Administrative Agent by any Revolving Lender on such Settlement Date, the
Swingline Lender shall be entitled to recover such amount on demand from such
Lender together with interest thereon as specified in Section
2.07.

     

    Section
2.06         Letters of
Credit.

     

    (a)          General.  Subject
to the terms and conditions set forth herein, the Borrower may request the
issuance of Letters of Credit for its own account or for the benefit of the
other Loan Parties, in a form reasonably acceptable to the Administrative Agent
and the Issuing Bank, at any time and from time to time during the Availability
Period.  In the event of any inconsistency between the terms and
conditions of this Agreement and the terms and conditions of any form of letter
of credit application or other agreement submitted by the Borrower to, or
entered into by the Borrower with, the Issuing Bank relating to any Letter of
Credit, the terms and conditions of this Agreement shall control.  All
Existing Letters of Credit shall be deemed to have been issued pursuant to this
Section 2.06,
and from and after the Effective Date shall be subject to and governed by the
terms and conditions hereof.

     

    (b)          Notice of Issuance,
Amendment, Renewal, Extension; Certain Conditions.  To request
the issuance of a Letter of Credit (or the amendment, renewal or extension of an
outstanding Letter of Credit), the Borrower shall hand deliver or facsimile (or
transmit by electronic communication, if arrangements for doing so have been
approved by the Issuing Bank) to the Issuing Bank and the Administrative Agent
(prior to 11:00 am at least three Business Days prior to the requested date
of issuance, amendment, renewal or extension (or such shorter time period
approved by the Issuing Bank in its reasonable discretion)) a notice requesting
the issuance of a Letter of Credit, or identifying the Letter of Credit to be
amended, renewed or extended, and specifying the date of issuance, amendment,
renewal or extension (which shall be a Business Day), the date on which such
Letter of Credit is to expire (which shall comply with paragraph (c) of this
Section), the amount of such Letter of Credit, the name and address of the
beneficiary thereof and such other information as shall be necessary to prepare,
amend, renew or extend such Letter of Credit.  If requested by the
Issuing Bank, the Borrower also shall submit a letter of credit application on
the Issuing Bank’s standard form in connection with any request for a Letter of
Credit.  A Letter of Credit shall be issued, amended, renewed or
extended only if (and upon issuance, amendment, renewal or extension of each
Letter of Credit the Borrower shall be deemed to represent and warrant that),
after giving effect to such issuance, amendment, renewal or extension (i) the LC
Exposure shall not exceed $30,000,000, and (ii) the total Revolving Exposures
shall not exceed (A) the lesser of the total Revolving Commitments and the
Borrowing Base, minus (B) the
Availability Block.
 

    
      
         


      

      
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    (c)          Expiration
Date.  Except for an Auto-Extension Letter of Credit, each
Letter of Credit shall expire at or prior to the close of business on the
earlier of (i) the date one year after the date of the issuance of such Letter
of Credit (or, in the case of any renewal or extension thereof, one year after
such renewal or extension) and (ii) the date that is five Business Days prior to
the Maturity Date.

     

    (d)          Participations.  By
the issuance of a Letter of Credit (or an amendment to a Letter of Credit
increasing the amount thereof) and without any further action on the part of the
Issuing Bank or the Revolving Lenders, the Issuing Bank hereby grants to each
Revolving Lender, and each Revolving Lender hereby acquires from the Issuing
Bank, a participation in such Letter of Credit equal to such Lender’s Applicable
Percentage of the aggregate amount available to be drawn under such Letter of
Credit.  In consideration and in furtherance of the foregoing, each
Revolving Lender hereby absolutely and unconditionally agrees to pay to the
Administrative Agent, for the account of the Issuing Bank, such Lender’s
Applicable Percentage of each LC Disbursement made by the Issuing Bank and not
reimbursed by the Borrower on the date due as provided in paragraph (e) of this
Section, or of any reimbursement payment required to be refunded to the Borrower
for any reason.  Each Revolving Lender acknowledges and agrees that
its obligation to acquire participations pursuant to this paragraph in respect
of Letters of Credit is absolute and unconditional and shall not be affected by
any circumstance whatsoever, including any amendment, renewal or extension of
any Letter of Credit or the occurrence and continuance of a Default or reduction
or termination of the Commitments, and that each such payment shall be made
without any offset, abatement, withholding or reduction whatsoever.

     

    (e)          Reimbursement.  If
the Issuing Bank shall make any LC Disbursement in respect of a Letter of
Credit, the Borrower shall reimburse such LC Disbursement by paying to the
Administrative Agent an amount equal to such LC Disbursement not later than 2:00
p.m. on the date that such LC Disbursement is made, if the Borrower shall have
received notice of such LC Disbursement prior to 11:00 a.m. on such date, or, if
such notice has not been received by the Borrower prior to such time on such
date, then not later than 2:00 p.m. on (i) the Business Day that the Borrower
receives such notice, if such notice is received prior to 11:00 a.m. on the day
of receipt, or (ii) the Business Day immediately following the day that the
Borrower receives such notice, if such notice is not received prior to such time
on the day of receipt; provided that, the
Borrower may, subject to the conditions to borrowing set forth herein, request
in accordance with Section 2.03 that
such payment be financed with a CBFR Revolving Borrowing or Swingline Loan in an
equivalent amount and, to the extent so financed, the Borrower’s obligation to
make such payment shall be discharged and replaced by the resulting CBFR
Revolving Borrowing or Swingline Loan.  If the Borrower fails to make
such payment when due, the Administrative Agent shall notify each Revolving
Lender of the applicable LC Disbursement, the payment then due from the Borrower
in respect thereof and such Lender’s Applicable Percentage
thereof.  Promptly following receipt of such notice, each Revolving
Lender shall pay to the Administrative Agent its Applicable Percentage of the
payment then due from the Borrower, in the same manner as provided in Section 2.07 with
respect to Loans made by such Lender (and Section 2.07 shall
apply, mutatis mutandis, to the
payment obligations of the Revolving Lenders), and the Administrative Agent
shall promptly pay to the Issuing Bank the amounts so received by it from the
Revolving Lenders.  Promptly following receipt by the Administrative
Agent of any payment from the Borrower pursuant to this paragraph, the
Administrative Agent shall distribute such payment to the Issuing Bank or, to
the extent that Revolving Lenders have made payments pursuant to this paragraph
to reimburse the Issuing Bank, then to such Lenders and the Issuing Bank as
their interests may appear.  Any payment made by a Revolving Lender
pursuant to this paragraph to reimburse the Issuing Bank for any LC Disbursement
(other than the funding of CBFR Revolving Loans or a Swingline Loan as
contemplated above) shall not constitute a Loan and shall not relieve the
Borrower of its obligation to reimburse such LC
Disbursement.
 

    
      
         


      

      
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      (f)           Obligations
Absolute.  The
Borrower’s obligation to reimburse LC Disbursements as provided in paragraph
(e) of this Section shall be absolute,
unconditional and irrevocable, and shall be performed strictly in accordance
with the terms of this Agreement under any and all circumstances whatsoever and
irrespective of (i) any lack of validity or enforceability
of any Letter of Credit or this Agreement, or any term or provision therein,
(ii) any draft or other document presented
under a Letter of Credit proving to be forged, fraudulent or invalid in any
respect or any statement therein being untrue or inaccurate in any respect,
(iii) payment by the Issuing Bank under a
Letter of Credit against presentation of a draft or other document that does not
comply with the terms of such Letter of Credit, or (iv) any other event or circumstance
whatsoever, whether or not similar to any of the foregoing, that might, but for
the provisions of this Section, constitute a legal or equitable discharge of, or
provide a right of setoff against, the Borrower’s obligations
hereunder (other than
payment or performance).  Neither the Administrative
Agent, the Revolving Lenders nor the Issuing Bank, nor any of their Related
Parties, shall have any liability or responsibility by reason of or in
connection with the issuance or transfer of any Letter of Credit or any payment
or failure to make any payment thereunder (irrespective of any of the
circumstances referred to in the preceding sentence), or any error, omission,
interruption, loss or delay in transmission or delivery of any draft, notice or
other communication under or relating to any Letter of Credit (including any
document required to make a drawing thereunder), any error in interpretation of
technical terms or any consequence arising from causes beyond the control of the
Issuing Bank; provided that the foregoing shall not be
construed to excuse the Issuing Bank from liability to the Borrower to the
extent of any direct damages (as opposed to consequential damages, claims in
respect of which are hereby waived by the Borrower to the extent permitted by
applicable law) suffered by the Borrower that are caused by the Issuing Bank’s
failure to exercise care when determining whether drafts and other documents
presented under a Letter of Credit comply with the terms thereof.  The
parties hereto expressly agree that, in the absence of gross negligence or
willful misconduct on the part of the Issuing Bank (as finally determined by a
court of competent jurisdiction), the Issuing Bank shall be deemed to have
exercised care in each such determination.  In furtherance of the
foregoing and without limiting the generality thereof, the parties agree that,
with respect to documents presented which appear on their face to be in
substantial compliance with the terms of a Letter of Credit, the Issuing Bank
may, in its sole discretion, either accept and make payment upon such documents
without responsibility for further investigation, regardless of any notice or
information to the contrary, or refuse to accept and make payment upon such
documents if such documents are not in strict compliance with the terms of such
Letter of Credit.

       

      
        
          
          

        

        
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      (g)           Disbursement
Procedures.  The
Issuing Bank shall, promptly following its receipt thereof, examine all
documents purporting to represent a demand for payment under a Letter of
Credit.  The Issuing Bank shall promptly notify the Administrative
Agent and the Borrower by telephone (confirmed by facsimile) of such demand for
payment and whether the Issuing Bank has made or will make an LC Disbursement
thereunder; provided that any failure to give or delay in
giving such notice shall not relieve the Borrower of its obligation to reimburse
the Issuing Bank and the Revolving Lenders with respect to any such LC
Disbursement in accordance
with the terms herein.

       

      (h)           Interim
Interest.  If the
Issuing Bank shall make any LC Disbursement, then, unless the Borrower shall
reimburse such LC Disbursement in full on the date such LC Disbursement is made,
the unpaid amount thereof shall bear interest, for each day from and including
the date such LC Disbursement is made to but excluding the date that the
Borrower reimburses such LC Disbursement, at the rate per annum then applicable
to CBFR Revolving Loans; provided that, if the Borrower fails to
reimburse such LC Disbursement when due pursuant to paragraph (e) of this Section, then Section
2.13(d) shall
apply.  Interest accrued pursuant to this paragraph shall be for the
account of the Issuing Bank, except that interest accrued on and after the date
of payment by any Revolving Lender pursuant to paragraph (e) of this Section to reimburse the
Issuing Bank shall be for the account of such Lender to the extent of such
payment.

       

      (i)           Replacement
of the Issuing Bank.  The Issuing Bank may be
replaced at any time by written agreement among the Borrower, the Administrative
Agent, the replaced Issuing Bank and the successor Issuing Bank.  The
Administrative Agent shall notify the Revolving Lenders of any such replacement
of the Issuing Bank.  At the time any such replacement shall become
effective, the Borrower shall pay all unpaid fees accrued for the account of the
replaced Issuing Bank pursuant to Section
2.12(b).  From
and after the effective date of any such replacement, (i) the successor Issuing Bank shall have
all the rights and obligations of the Issuing Bank under this Agreement with
respect to Letters of Credit to be issued thereafter and (ii) references herein to the term
“Issuing
Bank” shall be deemed to
refer to such successor or to any previous Issuing Bank, or to such successor
and all previous Issuing Banks, as the context shall require.  After
the replacement of an Issuing Bank hereunder, the replaced Issuing Bank shall
remain a party hereto and shall continue to have all the rights and obligations
of an Issuing Bank under this Agreement with respect to Letters of Credit issued
by it prior to such replacement to the extent such Letters of Credit
remain outstanding, but
shall not be required to issue additional Letters of Credit.

       

      
        
          
          

        

        
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      (j)           Cash
Collateralization.  If any Event of Default shall occur and be continuing,
on the Business Day that the Borrower receives written notice from the Administrative Agent or
the Required  Lenders (or, if the maturity of the Loans has been
accelerated, Revolving Lenders with LC Exposure representing greater than
50% of the total LC
Exposure) demanding the deposit of cash collateral pursuant to this paragraph,
the Borrower shall deposit in an account with the Administrative Agent, in the
name of the Administrative Agent and for the benefit of the Revolving Lenders
(the “LC
Collateral Account”), an
amount in cash equal to 105% of the LC Exposure as of such date plus accrued and unpaid interest thereon;
provided that the obligation to deposit such
cash collateral shall become effective immediately, and such deposit shall
become immediately due and payable, without demand or other notice of any kind,
upon the occurrence of any Event of Default with respect to the Borrower
described in clause (h) or (i) of Article
VII.  Such
deposit shall be held by the Administrative Agent as collateral for the payment
and performance of the Secured Obligations.  The Administrative Agent
shall have exclusive dominion and control, including the exclusive right of
withdrawal, over such account and the Borrower hereby grants the Administrative
Agent a security interest in the LC Collateral Account.  Other than
any interest earned on the investment of such deposits, which investments shall
be made at the option and sole discretion of the Administrative Agent and at the
Borrower’s risk and expense, such deposits shall not bear
interest.  Interest or profits, if any, on such investments shall
accumulate in such account
for the benefit of the Borrower.  Moneys in such account
shall be applied by the Administrative Agent to reimburse the Issuing Bank for
LC Disbursements for which it has not been reimbursed and, to the extent not so
applied, shall be held for the satisfaction of the reimbursement obligations of
the Borrower for the LC Exposure at such time or, if the maturity of the Loans
has been accelerated (but subject to the consent of Revolving Lenders with LC
Exposure representing greater than 50% of the total LC Exposure), be applied to
satisfy other Secured Obligations in accordance with Section
2.18.  If the
Borrower is required to provide an amount of cash collateral hereunder as a
result of the occurrence and continuance of an Event of Default, such amount (to the extent not
applied as aforesaid) shall be returned to the Borrower within three Business
Days after all such Events
of Default have been cured
or waived.

       

      (k)           Auto-Extension
Letters of Credit.  If the Borrower so requests
in respect of a standby Letter of Credit, the Issuing Bank shall agree to issue
a standby Letter of Credit that has provisions that automatically extend the
expiry date of such standby Letter of Credit for successive periods of up to
twelve months (each, an “Auto-Extension
Letter of Credit”);
provided that any such Auto-Extension Letter of
Credit must permit the Issuing Bank to prevent any such extension at least once
in each twelve month period (commencing with the date of issuance of such Letter
of Credit) by giving prior notice to the beneficiary thereof not later than a
day (the “Non-Extension
Notice Date”) in each such
twelve-month period to be agreed upon at the time such Auto-Extension Letter of
Credit is issued.  Unless otherwise directed by the Issuing Bank, the
Borrower shall not be required to make a specific request to the relevant
Issuing Bank for any such extension.  Once an Auto-Extension Letter of
Credit has been issued, the Lenders shall be deemed to have authorized (but may
not require) the Issuing Bank to permit the extension of such Auto-Extension
Letter of Credit at any time to an expiry date that is not later than the
earlier of twelve months after issuance or five (5) Business Days prior to the
Maturity Date; provided that the Issuing Bank (A) shall not be
required to permit any such extension if the Issuing Bank has determined that it
would have no obligation at such time to issue such Auto-Extension Letter of
Credit in its extended form under the terms hereof, and (B) shall not permit any
such extension if it has received notice (which may be by telephone or in
writing) on or before the day that is five (5) Business Days before the
Non-Extension Notice Date from the Administrative Agent, the Required Lenders or
the Borrower that one or more of the applicable conditions specified in
Section
4.01 is not then satisfied
or waived.

       

      
        
          
          

        

        
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      Section
2.07          Funding of
Borrowings.  (a) Each Lender shall make each Loan to be
made by it hereunder on the proposed date thereof by wire transfer of
immediately available funds by 1:00 p.m. to the account of the Administrative
Agent most recently designated by it for such purpose by notice to the Lenders
in an amount equal to such Lender’s Applicable Percentage; provided that, Swingline Loans shall be made as
provided in Section
2.05. Subject to clause (b) of this Section, the Administrative Agent will make such
Loans available to the Borrower by promptly crediting the amounts so received,
in like funds, to the Funding Account; provided that CBFR Revolving Loans made to
finance the reimbursement of (i) an LC Disbursement as provided in
Section
2.06(e) shall be remitted
by the Administrative Agent to the Issuing Bank and (ii) a Protective Advance or an Overadvance
shall be retained by the Administrative Agent.

       

      (b)           Unless the Administrative Agent shall
have received notice from a Lender prior to the proposed date of any Borrowing
that such Lender will not make available to the Administrative Agent such
Lender’s share of such Borrowing, the Administrative Agent may assume that such
Lender has made such share available on such date in accordance with clause (a) of this Section and may, in reliance
upon such assumption, make available to the Borrower a corresponding
amount.  In such event, if a Lender has not in fact made its share of
the applicable Borrowing available to the Administrative Agent, then the
applicable Lender and the Borrower severally agree to pay to the Administrative
Agent forthwith on demand such corresponding amount with interest thereon, for
each day from and including the date such amount is made available to the
Borrower to but excluding the date of payment to the Administrative Agent, at
(i) in the case of such Lender, the greater
of the Federal Funds Effective Rate and a rate determined by the Administrative
Agent in accordance with banking industry rules on interbank compensation or
(ii) in the case of the Borrower, the
interest rate applicable to CBFR Loans.  If such Lender pays such
amount to the Administrative Agent, then such amount shall constitute such
Lender’s Loan included in such Borrowing.

       

      Section
2.08          Interest
Elections.  (a) Each Revolving Borrowing initially
shall be of the Type specified in the applicable Borrowing Request and, in the
case of a Eurodollar Revolving Borrowing, shall have an initial Interest Period
as specified in such Borrowing Request.  Thereafter, the Borrower may
elect to convert such Borrowing to a different Type or to continue such
Borrowing and, in the case of a Eurodollar Revolving Borrowing, may elect
Interest Periods therefor, all as provided in this Section.  The
Borrower may elect different options with respect to different portions of the
affected Borrowing, in which case each such portion shall be allocated ratably
among the Lenders holding the Loans comprising such Borrowing, and the Loans
comprising each such portion shall be considered a separate
Borrowing.  This Section shall not apply to Swingline Loans, Overadvances or Protective Advances,
which may not be converted or continued.

       

      (b)           To make an election pursuant to this
Section, the Borrower shall notify the Administrative Agent of such election by
telephone by the time that a Borrowing Request would be required under
Section
2.03 if the Borrower were
requesting a Revolving Borrowing of the Type resulting from such election to be
made on the effective date of such election.  Each such telephonic
Interest Election Request shall be irrevocable and shall be confirmed promptly
by hand delivery,
facsimile or electronic transmission to the Administrative Agent of a
written Interest Election Request in a form approved by the Administrative Agent
and signed by the Borrower.

       

      (c)           Each telephonic and written Interest
Election Request shall specify the following information in compliance with
Section
2.02:

       

      
        
          
          

        

        
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      (i)           the Borrowing to which such Interest
Election Request applies and, if different options are being elected with
respect to different portions thereof, the portions thereof to be allocated to
each resulting Borrowing (in which case the information to be specified pursuant
to clauses (iii) and (iv) below shall be specified for each
resulting Borrowing);

       

      (ii)          the effective date of the election made
pursuant to such Interest Election Request, which shall be a Business
Day;

       

      (iii)         whether the resulting Borrowing is to be
a CBFR Borrowing or a Eurodollar Borrowing; and

       

      (iv)         if the resulting Borrowing is a
Eurodollar Borrowing, the Interest Period to be applicable thereto after giving
effect to such election, which shall be a period contemplated by the definition
of the term “Interest
Period”.

       

      If any
such Interest Election Request requests a Eurodollar Borrowing but does not
specify an Interest Period, then the Borrower shall be deemed to have selected
an Interest Period of one month’s duration.

       

      (d)           Promptly following receipt of an
Interest Election Request, the Administrative Agent shall advise each Lender of
the details thereof and of such Lender’s portion of each resulting
Borrowing.

       

      (e)           If the Borrower fails to deliver a
timely Interest Election Request with respect to a Eurodollar Revolving
Borrowing prior to the end of the Interest Period applicable thereto, then,
unless such Borrowing is repaid as provided herein, at the end of such Interest
Period such Borrowing shall be converted to a CBFR
Borrowing.  Notwithstanding any contrary provision hereof, if
a Default has occurred and is continuing
and the Administrative Agent, at the request of the Required Lenders, so
notifies the Borrower, then, so long as a Default is continuing (i) no outstanding Revolving Borrowing may
be converted to or continued as a Eurodollar Borrowing and (ii) unless repaid, each Eurodollar
Revolving Borrowing shall be converted to a CBFR Borrowing at the end of the
Interest Period applicable thereto.

       

      Section
2.09        Termination
and Reduction of Commitments.  (a) Unless previously terminated, the
Commitments shall terminate on the Maturity Date.

       

      (b)           The Borrower may at any time terminate
the Commitments upon (i) the payment in full of all outstanding
Loans, together with accrued and unpaid interest thereon and on any Letters of
Credit, (ii) the cancellation and return of all
outstanding Letters of Credit (or alternatively, with respect to each such
Letter of Credit, the furnishing to the Administrative Agent of a cash deposit
(or at the discretion of the Administrative Agent a back up standby letter of
credit satisfactory to the Administrative Agent) equal to 105% of the LC
Exposure as of such date), (iii) the payment in full of the accrued and
unpaid fees, and (iv) the payment in full of all reimbursable
expenses and other Obligations then due and owing together with accrued and unpaid
interest thereon, if
any.

       

      
        
          
          

        

        
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      (c)           Subject to Section
2.16, the Borrower may from time to time reduce
the Revolving Commitments; provided that (i) each reduction of the Revolving
Commitments shall be in an amount that is an integral multiple of
$1,000,000 and not less
than $1,000,000 and (ii) the Borrower shall not reduce the
Revolving Commitments if, after giving effect to any concurrent prepayment of
the Revolving Loans in accordance with Section
2.10, the sum of the
Revolving Exposures would exceed (A) the lesser of the total Revolving
Commitments and the Borrowing Base, minus (B) the Availability Block.

       

      (d)           The Borrower shall notify the
Administrative Agent of any election to terminate or reduce the Commitments
under paragraph (b) or (c) of this Section at least three Business
Days prior to the effective date of such termination or reduction, specifying
such election and the effective date thereof.  Promptly following
receipt of any notice, the Administrative Agent shall advise the Lenders of the
contents thereof.  Each notice delivered by the Borrower pursuant to
this Section shall be irrevocable; provided that a notice of termination of the
Commitments delivered by the Borrower may state that such notice is conditioned
upon the effectiveness of other credit facilities or other events, in which case such notice may be
revoked by the Borrower (by notice to the Administrative Agent on or prior to
the specified effective date) if such condition is not satisfied.  Any
termination or reduction of the Commitments shall be permanent.  Each
reduction of the Commitments shall be made ratably among the Lenders in
accordance with their respective Commitments.

       

      Section
2.10          Repayment of
Loans; Evidence of Debt.  (a) The Borrower hereby unconditionally
promises to pay (i) to the Administrative Agent for the
account of each Lender the then unpaid principal amount of each Revolving Loan
on the Maturity Date,(ii) to the Administrative Agent the then
unpaid amount of each Protective Advance on the earlier of the Maturity Date and
demand by the Administrative Agent, and (iii) to the Administrative Agent the then
unpaid principal amount of each Overadvance on the earlier of the Maturity Date,
demand by the Administrative Agent and the 30th day after such Overadvance is
made.

       

      (b)           On each Business Day, the Administrative
Agent shall apply all funds credited to the Collection Account on such Business
Day or the immediately preceding Business Day (at the discretion of the
Administrative Agent, whether or not immediately available), first to prepay any Protective Advances and
Overadvances that may be outstanding, pro rata, second to prepay the Revolving Loans and
third to cash collateralize outstanding LC
Exposure, in each case
without a permanent commitment reduction.

       

      (c)           Each Lender shall maintain in accordance
with its usual practice an account or accounts evidencing the indebtedness of
the Borrower to such Lender resulting from each Loan made by such Lender,
including the amounts of principal and interest payable and paid to such Lender
from time to time hereunder.

       

      (d)           The Administrative Agent shall maintain
accounts in which it shall record (i) the amount of each Loan made hereunder,
the Class and Type thereof and the Interest Period applicable thereto,
(ii) the amount of any principal or interest
due and payable or to become due and payable from the Borrower to each Lender
hereunder and (iii) the amount of any sum received by the
Administrative Agent hereunder for the account of the Lenders and each Lender’s
share thereof.

       

      
        
          
          

        

        
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      (e)           The entries made in the accounts
maintained pursuant to paragraph (c) or (d) of this Section shall be prima facie evidence of the existence and amounts
of the obligations recorded therein; provided that the failure of any Lender or the
Administrative Agent to maintain such accounts or any error therein shall not in
any manner affect the obligation of the Borrower to repay the Loans in
accordance with the terms of this Agreement.

       

      (f)           Any Lender may request that Loans made
by it be evidenced by a promissory note.  In such event, the Borrower
shall promptly prepare, execute and deliver to such
Lender a promissory note payable to the order of such Lender (or, if requested
by such Lender, to such Lender and its registered assigns) and in a form
approved by the Administrative Agent and Borrower.  Thereafter, the Loans
evidenced by such promissory note and interest thereon shall at all times
(including after assignment pursuant to Section
9.04) be represented by one
or more promissory notes in such form payable to the order of the payee named
therein (or, if such promissory note is a registered note, to such payee and its
registered assigns).

       

      Section
2.11          Prepayment
of Loans.  (a) The Borrower shall have the right at
any time and from time to time to prepay any Borrowing in whole or in
part without premium or
penalty, subject to prior
notice in accordance with paragraph (d) of this Section.

       

      (b)           In the event and on such occasion that
the total Revolving Exposure exceeds (x) the lesser of (i) the aggregate Revolving Commitments or
(ii) the Borrowing Base, except for Overadvances permitted under
Section
2.05, minus (y) the Availability Block, the Borrower shall prepay the
Revolving Loans, LC
Exposure and/or
Swingline Loans in an aggregate amount equal to such
excess.

       

      In the
event and on each occasion that any Net Proceeds are received by or on behalf of
any Loan Party in respect of any Prepayment Event, the Borrower shall,
immediately after such Net Proceeds are received by any Loan Party and subject
to the terms, conditions and provisions of the Intercreditor Agreement, prepay
the Obligations as set forth in Section 2.11(c) below
in an aggregate amount equal to 100% of such Net Proceeds without a
corresponding commitment reduction, provided that, in the
case of any event described in clause (a) or (b) of the definition of the term
“Prepayment
Event”, any Net Proceeds attributable to Notes Priority Collateral shall
be applied in accordance with the Senior Notes Documents or, if the Senior Notes
(or any replacement or refinancing thereof) are no longer outstanding, any Net
Proceeds attributable to Real Property, equipment or any tangible assets
(excluding Inventory) shall be applied by the Administrative Agent to reduce the
outstanding principal balance of the Revolving Loans (without a permanent
reduction of the Revolving Commitment) and upon such application, the
Administrative Agent may, in the case of any event described in clause (b) of the
definition of the term “Prepayment
Event”,  establish a Reserve against the Borrowing Base in an
amount not greater than the amount of such proceeds so applied to cover the
costs of repair, restoration or replacement.

       

      (c)           All such amounts pursuant to
Section
2.11(c) shall be applied, first to prepay any Protective Advances and
Overadvances that may be outstanding, pro rata, and second to prepay the Revolving Loans without a
corresponding reduction in the Revolving Commitment and to cash collateralize
outstanding LC Exposure.  Subject to the terms, conditions and
provisions of the Intercreditor Agreement, if the precise amount of insurance or
condemnation proceeds allocable to Inventory as compared to equipment, fixtures and Real Property is not otherwise determined, the
allocation and application of those proceeds shall be determined by the
Administrative Agent, in its Permitted Discretion.

       

      
        
          
          

        

        
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      (d)           The Borrower shall notify the
Administrative Agent (and,
in the case of prepayment of a Swingline Loan, the Swingline Lender) by telephone (confirmed by facsimile)
or electronic transmission
of any prepayment hereunder
(i) in the case of a voluntary prepayment of a Eurodollar Revolving
Borrowing, not later than
11:00 a.m. three Business Days before the date of prepayment, or (ii) in the case of a voluntary prepayment
of an CBFR Revolving Borrowing, not later than 11:00 a.m. one Business Day before the date of
prepayment.  Each such notice shall be irrevocable and shall specify
the prepayment date and the principal amount of each Borrowing or portion
thereof to be prepaid; provided that, if a notice of prepayment is
given in connection with a conditional notice of termination of the Commitments
as contemplated by Section
2.09, then such notice of
prepayment may be revoked if such notice of termination is revoked in accordance
with Section
2.09.  Promptly
following receipt of any such notice relating to a Revolving Borrowing, the
Administrative Agent shall advise the Lenders of the contents
thereof.  Each voluntary partial prepayment of any Revolving
Borrowing shall be in an amount that would be permitted in the case of an
advance of a Revolving Borrowing of the same Type as provided in Section
2.02.  Each
prepayment of a Revolving Borrowing shall be applied ratably to the Revolving
Loans included in the prepaid Borrowing.  Prepayments shall be
accompanied by accrued interest to the extent required by Section
2.13.

       

      Section
2.12          Fees.  (a) The Borrower agrees to pay to the
Administrative Agent for the account of each Lender a commitment fee, which
shall accrue at the Applicable Unused Commitment Fee Rate on the average daily
amount of the Available Revolving Commitment of such Lender during the period
from and including the Effective Date to but excluding the date on which the
Lenders’ Revolving Commitments terminate.  Accrued commitment fees
shall be payable monthly
in arrears on the first
Business Day of each calendar month and on the date on which the Revolving
Commitments terminate, commencing on the first such date to occur after the date
hereof.  All commitment fees shall be computed on the basis of a year
of 360 days and shall be payable for the actual number of days
elapsed.

       

      (b)           The Borrower agrees to pay (i) to the Administrative Agent for the
account of each Revolving Lender a participation fee with respect to its
participations in Letters of Credit, which shall accrue at the same Applicable
Margin used to determine the interest rate applicable to Eurodollar Revolving
Loans on the average daily amount of such Lender’s LC Exposure (excluding any
portion thereof attributable to unreimbursed LC Disbursements) during the period
from and including the Effective Date to but excluding the later of the date on
which such Lender’s Revolving Commitment terminates and the date on which such
Revolving Lender ceases to have any LC Exposure, and (ii) to the Issuing Bank a fronting fee,
which shall accrue at the rate of 0.20% per annum on the average daily amount of
the LC Exposure (excluding any portion thereof attributable to unreimbursed LC
Disbursements) during the period from and including the Effective Date to but
excluding the later of the date of termination of the Revolving Commitments and
the date on which there ceases to be any LC Exposure, as well as the Issuing
Bank’s standard fees with respect to the issuance, amendment, renewal or
extension of any Letter of Credit or processing of drawings
thereunder.  Participation fees and fronting fees accrued through and
including the last day of each calendar month shall be payable monthly in arrears on the first Business Day of each
calendar month following such last day, commencing on the first such date to
occur after the Effective Date; provided that all such fees shall be payable on
the date on which the Revolving Commitments terminate and any such fees accruing
after the date on which the Commitments terminate shall be payable on
demand.  Any other fees payable to the Issuing Bank pursuant to this
paragraph shall be payable within 10 days after demand.  All
participation fees and fronting fees shall be computed on the basis of a year of
360 days and shall be payable for the actual number of days
elapsed.

       

      
        
          
          

        

        
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      (c)           The Borrower agrees to pay to the
Administrative Agent, for its own account, fees payable in the amounts and at
the times separately agreed upon between the Borrower and the Administrative
Agent.

       

      (d)           The Borrower agrees to pay to the Lead
Arrangers, for their respective accounts, fees payable in the amounts and at
such times separately agreed upon between the Borrower and the Lead
Arrangers.

       

      (e)           All fees payable hereunder shall be paid
on the dates due, in immediately available funds, to the Administrative Agent
(or to the Issuing Bank, in the case of fees payable to it) for distribution, in
the case of commitment fees and participation fees, to the
Lenders.  Fees paid shall not be refundable under any
circumstances.

       

      Section
2.13         Interest.  (a) The Loans comprising each CBFR
Borrowing (including each
Swingline Loan) shall bear
interest at the CB Floating Rate plus the Applicable
Margin.

       

      (b)           The Loans comprising each Eurodollar
Borrowing shall bear interest at the Adjusted LIBO Rate for the Interest Period
in effect for such Borrowing plus the Applicable
Margin.

       

      (c)           Each Protective Advance and each
Overadvance shall bear interest at the CB Floating Rate plus the Applicable Margin for Revolving
Loans plus 2%.

       

      (d)           Notwithstanding the foregoing, during
the occurrence and continuance of an Event of Default, the Required Lenders may, at their
option, by notice to the Borrower (which notice may
be revoked at the option of the Required Lenders notwithstanding any provision
of Section
9.02 requiring the consent
of “each Lender affected thereby” for reductions in interest rates), declare
effective upon such notice
that (i) all Loans shall bear interest at 2%
plus the rate otherwise applicable to such
Loans as provided in the preceding paragraphs of this Section or (ii) in the case of any other amount
outstanding hereunder, such amount shall accrue at 2% plus the rate applicable to such fee or
other obligation as provided hereunder. 

       

      (e)           Accrued interest on each Loan shall be
payable in arrears on each Interest Payment Date for such Loan and upon
termination of the Commitments; provided that (i) interest accrued pursuant to paragraph
(d) of this Section shall be payable on
demand, (ii) in the event of any repayment or
prepayment of any Loan (other than a prepayment of a CBFR Revolving Loan prior
to the end of the Availability Period), accrued interest on the principal amount
repaid or prepaid shall be payable on the date of such repayment or prepayment
and (iii) in the event of any conversion of any
Eurodollar Loan prior to the end of the current Interest Period therefor,
accrued interest on such Loan shall be payable on the effective date of such
conversion.

       

      
        
          
          

        

        
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      (f)           All interest hereunder shall be computed
on the basis of a year of 360 days, except that interest computed by reference
to the CB Floating Rate shall be computed on the basis of a year of 365 days (or
366 days in a leap year), and in each case shall be payable for the actual
number of days elapsed.  The applicable CB Floating Rate, Adjusted
LIBO Rate or LIBO Rate shall be determined by the Administrative Agent, and such
determination shall be conclusive absent manifest error.

       

      Section
2.14          Alternate
Rate of Interest.  After the Effective
Date, if prior to the commencement of any
Interest Period for a Eurodollar Borrowing:

       

      (a)           the Administrative Agent reasonably determines (which determination shall be
conclusive absent manifest error) that adequate and reasonable means do not
exist for ascertaining the Adjusted LIBO Rate or the LIBO Rate, as applicable,
for such Interest Period; or

       

      (b)           the Administrative Agent is advised by
the Required Lenders that the Adjusted LIBO Rate or the LIBO Rate, as
applicable, for such Interest Period will not adequately and fairly reflect the
cost to such Lenders (or Lender) of making or maintaining their Loans (or its
Loan) included in such Borrowing for such Interest Period;

       

      then the
Administrative Agent shall give notice thereof to the Borrower and the Lenders
by telephone, facsimile or electronic transmission as promptly as practicable
thereafter and, until the Administrative Agent notifies the Borrower and the
Lenders that the circumstances giving rise to such notice no longer exist, (i)
any Interest Election Request that requests the conversion of any Revolving
Borrowing to, or continuation of any Revolving Borrowing as, a Eurodollar
Borrowing shall be ineffective, and (ii) if any Borrowing Request requests a
Eurodollar Revolving Borrowing, such Borrowing shall be made as a CBFR
Borrowing.

       

      Section
2.15          Increased
Costs.  (a) If any Change in Law
shall:

       

      (i)           impose, modify or deem applicable any
reserve, special deposit or similar requirement against assets of, deposits with
or for the account of, or credit extended by, any Lender (except any such
reserve requirement reflected in the Adjusted LIBO Rate) or the Issuing Bank;
or

       

      (ii)          impose on any Lender or the Issuing Bank
or the London interbank market any other condition affecting this Agreement or
Eurodollar Loans made by such Lender or any Letter of Credit or participation
therein;

       

      and the
result of any of the foregoing shall be to increase the cost to such Lender of
making or maintaining any Eurodollar Loan (or of maintaining its obligation to
make any such Loan) or to increase the cost to such Lender or the Issuing Bank
of participating in, issuing or maintaining any Letter of Credit or to reduce
the amount of any sum received or receivable by such Lender or the Issuing Bank
hereunder (whether of principal, interest or otherwise), then the Borrower will
pay to such Lender or the Issuing Bank, as the case may be, such additional
amount or amounts as will compensate such Lender or the Issuing Bank, as the
case may be, for such additional costs incurred or reduction
suffered.

       

      
        
          
          

        

        
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      (b)           If any Lender or the Issuing Bank
determines that any Change in Law regarding capital requirements has or would
have the effect of reducing the rate of return on such Lender’s or the Issuing
Bank’s capital or on the capital of such Lender’s or the Issuing Bank’s holding
company, if any, as a consequence of this Agreement or the Loans made by, or
participations in Letters of Credit held by, such Lender, or the Letters of
Credit issued by the Issuing Bank, to a level below that which such Lender or
the Issuing Bank or such Lender’s or the Issuing Bank’s holding company could
have achieved but for such Change in Law (taking into consideration such
Lender’s or the Issuing Bank’s policies and the policies of such Lender’s or the
Issuing Bank’s holding company with respect to capital adequacy), then from time
to time the Borrower will pay to such Lender or the Issuing Bank, as the case
may be, such additional amount or amounts as will compensate such Lender or the
Issuing Bank or such Lender’s or the Issuing Bank’s holding company for any such
reduction suffered.

       

      (c)           A certificate of a Lender or the Issuing
Bank setting forth in
reasonable detail the
amount or amounts necessary to compensate such Lender or the Issuing Bank or its
holding company, as the case may be, as specified in paragraph (a) or (b) of this Section shall be delivered to
the Borrower and shall be conclusive absent manifest error.  The
Borrower shall pay such Lender or the Issuing Bank, as the case may be, the
amount shown as due on any such certificate within 10 days after receipt
thereof.

       

      (d)           Failure or delay on the part of any
Lender or the Issuing Bank to demand compensation pursuant to this Section shall
not constitute a waiver of such Lender’s or the Issuing Bank’s right to demand
such compensation; provided that the Borrower shall not be required
to compensate a Lender or the Issuing Bank pursuant to this Section for any
increased costs or reductions incurred more than
180 days prior to the date
that such Lender or the Issuing Bank, as the case may be, notifies the Borrower
of the Change in Law giving rise to such increased costs or reductions and of
such Lender’s or the Issuing Bank’s intention to claim compensation therefor;
provided further that, if the Change in Law giving rise
to such increased costs or reductions is retroactive, then the 180-day period referred to above shall be
extended to include the period of retroactive effect
thereof.

       

      Section
2.16          Break
Funding Payments.  In the event of
(a) the payment of any principal of any
Eurodollar Loan other than on the last day of an Interest Period applicable
thereto (including as a result of an Event of Default), (b) the conversion of any Eurodollar Loan
other than on the last day of the Interest Period applicable thereto,
(c) the failure to borrow, convert,
continue or prepay any Eurodollar Loan on the date specified in any notice
delivered pursuant hereto (regardless of whether such notice may be revoked
under Section
2.09(d) and is revoked in
accordance therewith), or (d) the assignment of any Eurodollar Loan
other than on the last day of the Interest Period applicable thereto as a result
of a request by the Borrower pursuant to Section
2.19, then, in any such
event, the Borrower shall compensate each Lender for the loss, cost and expense
attributable to such event.  In the case of a Eurodollar Loan, such
loss, cost or expense to any Lender shall be deemed to include an amount
determined by such Lender to be the excess, if any, of (i) the amount of interest which would have
accrued on the principal amount of such Loan had such event not occurred, at the
Adjusted LIBO Rate that would have been applicable to such Loan, for the period
from the date of such event to the last day of the then current Interest Period
therefor (or, in the case of a failure to borrow, convert or continue, for the
period that would have been the Interest Period for such Loan), over
(ii) the amount of interest which would
accrue on such principal amount for such period at the interest rate which such
Lender would bid were it to bid, at the commencement of such period, for dollar
deposits of a comparable amount and period from other banks in the eurodollar
market.  A certificate of any Lender setting forth in reasonable detail, any amount or amounts that such Lender
is entitled to receive pursuant to this Section shall be delivered to the
Borrower and shall be conclusive absent manifest error.  The Borrower
shall pay such Lender the amount shown as due on any such certificate within 10
days after receipt thereof.

       

      
        
          
          

        

        
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      Section
2.17          Taxes.  (a) Any and all payments by or on account
of any obligation of the Borrower hereunder shall be made free and clear of and
without deduction for any Indemnified Taxes or Other Taxes; provided that if the Borrower shall be required
to deduct any Indemnified Taxes or Other Taxes from such payments, then
(i) the sum payable shall be increased as
necessary so that after making all required deductions (including deductions
applicable to additional sums payable under this Section) the Administrative
Agent, Lender or Issuing Bank (each a “Payee”) receives an amount equal to the sum it
would have received had no such deductions been made, (ii) the Borrower shall make such deductions
and (iii) the Borrower shall pay the full amount
deducted to the relevant Governmental Authority in accordance with applicable
law.

       

      (b)           In addition, the Borrower shall pay any
Other Taxes to the relevant Governmental Authority in accordance with applicable
law.

       

      (c)           The Borrower shall indemnify any Payee, within 15 Business Days after written demand therefor (including documentation
reasonably supporting such request), for the full amount of any Indemnified
Taxes or Other Taxes paid by such Payee, as the case may be, on or with respect
to any payment by or on account of any obligation of the Borrower hereunder
(including Indemnified Taxes or Other Taxes imposed or asserted on or
attributable to amounts payable under this Section) and any penalties, interest
and reasonable expenses arising therefrom or with respect thereto, whether or
not such Indemnified Taxes or Other Taxes were correctly or legally imposed or
asserted by the relevant
Governmental Authority; provided, however, that the Borrower shall not be required to compensate
any Payee, for any Indemnified Taxes or
Other Taxes incurred more
than one hundred eighty (180) days prior to the date that such Payee notifies Borrower of such Indemnified Taxes or Other
Taxes and of such Payee’s
intention to claim compensation
therefor; provided, further, that, if the circumstances giving rise
to such Indemnified Taxes or Other Taxes is retroactive, then the one hundred eighty (180) day period referred to above shall be
extended to include the period of retroactive effect thereof.  A certificate as to the
amount of such payment or liability delivered to the Borrower by a Payee shall be conclusive absent manifest
error.

       

      (d)           Each Lender and the Issuing Bank shall
indemnify the Borrower and the Administrative Agent, within 10 days after
written demand therefor, against any and all Taxes and any and all related
losses, claims, liabilities, penalties, interest and reasonable expenses
(including the fees, charges and disbursements of any counsel for the Borrower
or the Administrative Agent) incurred by or asserted against the Borrower or the
Administrative Agent by any Governmental Authority as a result of the failure by
such Lender or the Issuing Bank, as the case may be, to deliver, or as a result
of the inaccuracy, inadequacy or deficiency of, any documentation required to be
delivered to the Borrower or the Administrative Agent pursuant to Section
2.17(f).  Each
Lender and the Issuing Bank hereby authorizes the Administrative Agent to set
off and apply any and all amounts at any time owing to such Lender or the
Issuing Bank, as the case may be, under this Agreement or any other Loan
Document, against any amount due to the Administrative Agent under
this Section
2.17(d).

       

      
        
          
          

        

        
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      (e)           Within 30 days after any payment of Indemnified Taxes
or Other Taxes by the Borrower to a Governmental Authority, the Borrower shall
deliver to the Administrative Agent the original or a certified copy of a
receipt issued by such Governmental Authority evidencing such payment, a copy of
the return reporting such payment or other evidence of such payment reasonably
satisfactory to the Administrative Agent.

       

      (f)     
      Any Payee that is a "United States person" within
the meaning of section 7701(a)(30) of the Code shall deliver to
the Administrative
Agent and the Borrower IRS Form W-9 or such other documentation
or information prescribed by Applicable Law or reasonably requested by
Administrative Agent or
Borrower to determine
whether such Payee is subject to backup withholding or
information reporting requirements. Any Foreign Payee that is entitled to an exemption from United States withholding
tax, or that is subject to such tax at a reduced rate under an applicable tax
treaty, shall provide the Administrative Agent and the Borrower with two
properly completed and duly executed originals of each of the following, as
applicable: (i) Form W-8IMY (together with any applicable underlying IRS forms,
documentation or certificates) or successor form, (ii) Form W-8ECI (claiming
exemption from U.S. withholding tax because the income is effectively connected
with a U.S. trade or business) or any successor form, (iii) Form W-8BEN
(claiming exemption from, or a reduction of, U.S. withholding tax under an
income tax treaty) or any successor form, (iv) in the case of a Foreign Payee
claiming exemption under Sections 871(h) or 881(c) of the Code, a Form
W-8BEN (claiming exemption from U.S. withholding tax under the portfolio
interest exemption) or any successor form or (v) any other applicable form,
certificate or document prescribed by the IRS or any applicable law certifying
as to such Foreign Payee’s entitlement to such exemption from United States
withholding tax or reduced rate with respect to all payments to be made to such
Foreign Payee under the Loan Documents.  Unless the Borrower and the
Administrative Agent have received forms or other documents satisfactory to them
indicating that payments under any Loan Document to or for a Foreign Payee are
not subject to United States withholding tax or are subject to such tax at a
rate reduced by an applicable tax treaty, the Loan Parties and the
Administrative Agent shall withhold amounts required to be withheld by
applicable Requirements of Law from such payments at the applicable statutory
rate.  In addition, if a payment made to a Payee under any Loan
Document would be subject to U.S. federal withholding Tax imposed by FATCA if
such Payee fails to comply with the applicable reporting requirements of FATCA
(including those contained in Section 1471(b) or 1472(b) of the Code, as
applicable), such Lender shall deliver to the Withholding Agent (A) a
certification signed by the chief financial officer, principal accounting
officer, treasurer or controller and (B) other documentation reasonably
requested by its Withholding Agent sufficient for the Withholding Agent to
comply with its obligations under FATCA and to determine that such Payee has
complied with such applicable reporting requirements.

       

      
        
          
          

        

        
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      (g)           If a Payee determines, in its sole discretion,
that it has received a refund of any Taxes or Other Taxes as to which it has
been indemnified by the Borrower or with respect to which the Borrower has paid
additional amounts pursuant to this Section
2.17, it shall pay over
such refund to the Borrower (but only to the extent of indemnity payments made,
or additional amounts paid, by the Borrower under this Section
2.17 with respect to the
Taxes or Other Taxes giving rise to such refund), net of all out-of-pocket
expenses of such Payee
and without interest (other
than any interest paid by the relevant Governmental Authority with respect to
such refund); provided, that the Borrower, upon the request of the Payee, agrees to repay the amount paid over
to the Borrower (plus any penalties, interest or other
charges imposed by the relevant Governmental Authority) to such Payee in the event the Payee is required to repay such refund to such
Governmental Authority. This Section shall not be construed to require the
Administrative Agent or any Lender to make available its tax returns (or any
other information relating to its taxes which it deems confidential) to the
Borrower or any other Person.

       

      Section
2.18         Payments
Generally; Allocation of Proceeds; Sharing of Set-offs.  (a) The Borrower shall make each payment
required to be made by it hereunder (whether of principal, interest, fees or
reimbursement of LC Disbursements, or of amounts payable under Section
2.15, Section
2.16 or Section
2.17, or otherwise) prior to 2:00 p.m.
on the date when due, in
immediately available funds, without set-off or counterclaim.  Any
amounts received after such time on any date may, in the discretion of the
Administrative Agent, be deemed to have been received on the next succeeding
Business Day for purposes of calculating interest thereon.  All such
payments shall be made to the Administrative Agent at its offices at 10 South
Dearborn Street, 22nd Floor, Chicago, Illinois (or such other location identified by
the Administrative Agent to the Borrower in writing), except payments to be made directly to
the Issuing Bank or
Swingline Lender as
expressly provided herein and except that payments pursuant to Section
2.15, Section
2.16, Section
2.17 and Section
9.03 shall be made directly
to the Persons entitled thereto.  The Administrative Agent shall
distribute any such payments received by it for the account of any other Person
to the appropriate recipient promptly following receipt thereof.  If
any payment hereunder shall be due on a day that is not a Business Day, the date
for payment shall be extended to the next succeeding Business Day, and, in the
case of any payment accruing interest, interest thereon shall be payable for the
period of such extension.  All payments hereunder shall be made in
dollars.

       

      (b)           Any proceeds of Collateral received by
the Administrative Agent (i) not constituting either (A) a specific payment of principal,
interest, fees or other sum payable under the Loan Documents (which shall be
applied as specified by the Borrower), (B) a mandatory prepayment (which shall be
applied in accordance with Section
2.11) or (C) amounts to be applied from the
Collection Account (which shall be applied in accordance with Section
2.10(b)) or (ii) after an Event of Default has occurred
and is continuing and the Administrative Agent so elects or the Required Lenders
so direct, such funds shall be applied ratably first, to pay any fees, indemnities, or
expense reimbursements including amounts then due to the Administrative Agent
and the Issuing Bank from the Borrower pursuant to the Loan
Documents (other than in
connection with Banking Services or Swap Obligations) pursuant to the Loan
Documents, second, to pay any fees or expense
reimbursements then due to the Lenders from the Borrower (other than in
connection with Banking Services or Swap Obligations), third, to pay interest due in respect of the
Overadvances and Protective Advances, fourth, to pay the principal of the
Overadvances and Protective Advances, fifth, to pay interest then due and payable
on the Loans (other than the Overadvances and Protective Advances) ratably,
sixth, to prepay principal on the Loans
(other than the Overadvances and Protective Advances) and unreimbursed LC
Disbursements ratably, seventh, to pay an amount to the Administrative
Agent equal to one hundred five percent (105%) of the aggregate undrawn face
amount of all outstanding Letters of Credit and the aggregate amount of any
unpaid LC Disbursements, to be held as cash collateral for such Obligations,
eighth, to payment of any amounts owing with
respect to Banking Services and Swap Obligations, ninth, to the payment of any other Secured
Obligation due to the Administrative Agent or any Lender by the
Borrower and tenth, the balance, if any, after all of the
Secured Obligations have been paid in full, to the Borrower or as otherwise
required by law. Notwithstanding anything to the contrary
contained in this Agreement, unless so directed by the Borrower, or unless a
Default is in existence, neither the Administrative Agent nor any Lender shall
apply any payment which it receives to any Eurodollar Loan of a Class, except (A) on the expiration date of the Interest
Period applicable to any such Eurodollar Loan or (B) in the event, and only to the extent,
that there are no outstanding CBFR Loans of the same Class and, in any
such event, the Borrower shall pay the break funding payment required in
accordance with Section
2.16.  The
Administrative Agent and the Lenders shall have the continuing and exclusive
right to apply and reverse and reapply any and all such proceeds and payments to
any portion of the Secured Obligations.

       

      
        
          
          

        

        
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      (c)           At the election of the Administrative
Agent, all payments of principal, interest, LC Disbursements, fees, premiums,
reimbursable expenses (including, without limitation, all reimbursement for fees
and expenses pursuant to Section
9.03), and other sums
then due and payable under the Loan Documents, may be
paid from the proceeds of Borrowings made hereunder whether made following a
request by the Borrower pursuant to Section
2.03 or a deemed request as
provided in this Section or may be deducted from the Collection Account.  The Borrower hereby
irrevocably authorizes (i) the Administrative Agent to make a
Borrowing for the purpose of paying each payment of principal, interest and fees as it becomes due and
payable hereunder or any
other amount due and
payable under the Loan
Documents and agrees that all such amounts charged shall constitute Loans
(including Swingline Loans
and Overadvances, but such
a Borrowing may only constitute a Protective Advance if it is to reimburse
costs, fees and expenses as described in Section
9.03) and that all such
Borrowings shall be deemed to have been requested pursuant to Section
2.03, Section
2.04 or Section
2.05, as applicable and
(ii) the Administrative Agent to charge
the Collection
Account of the Borrower
maintained with the Administrative Agent for each payment of principal, interest
and fees as it becomes due hereunder or any other amount due under the Loan
Documents.

       

      (d)           If any Lender shall, by exercising any
right of set-off or counterclaim or otherwise, obtain payment in respect of any
principal of or interest on any of its Loans or participations in LC
Disbursements resulting in such Lender receiving payment of a greater proportion
of the aggregate amount of its Loans and participations in LC Disbursements and
accrued interest thereon than the proportion received by any other Lender, then
the Lender receiving such greater proportion shall purchase (for cash at face
value) participations in the Loans and participations in LC Disbursements of
other Lenders to the extent necessary so that the benefit of all such payments
shall be shared by the Lenders ratably in accordance with the aggregate amount
of principal of and accrued interest on their respective Loans and
participations in LC Disbursements; provided that (i) if any such participations are
purchased and all or any portion of the payment giving rise thereto is
recovered, such participations shall be rescinded and the purchase price
restored to the extent of such recovery, without interest, and (ii) the provisions of this paragraph shall
not be construed to apply to any payment made by the Borrower pursuant to and in
accordance with the express terms of this Agreement or any payment obtained by a
Lender as consideration for the assignment of or sale of a participation in any
of its Loans or participations in LC Disbursements to any assignee or
participant, other than to the Borrower or any Subsidiary or Affiliate thereof
(as to which the provisions of this paragraph shall apply).  The
Borrower consents to the foregoing and agrees, to the extent it may effectively
do so under applicable law, that any Lender acquiring a participation pursuant
to the foregoing arrangements may exercise against the Borrower rights of
set-off and counterclaim with respect to such participation as fully as if such
Lender were a direct creditor of the Borrower in the amount of such
participation, in each case
in accordance with the terms of this Agreement.

       

      
        
          
          

        

        
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      (e)           Unless the Administrative Agent shall
have received notice from the Borrower prior to the date on which any payment is
due to the Administrative Agent for the account of the Lenders or the Issuing
Bank hereunder that the Borrower will not make such payment, the Administrative
Agent may assume that the Borrower has made such payment on such date in
accordance herewith and may, in reliance upon such assumption, distribute to the
Lenders or the Issuing Bank, as the case may be, the amount due.  In
such event, if the Borrower has not in fact made such payment, then each of the
Lenders or the Issuing Bank, as the case may be, severally agrees to repay to
the Administrative Agent forthwith on demand the amount so distributed to such
Lender or Issuing Bank with interest thereon, for each day from and including
the date such amount is distributed to it to but excluding the date of payment
to the Administrative Agent, at the greater of the Federal Funds Effective Rate
and a rate determined by the Administrative Agent in accordance with banking
industry rules on interbank compensation.

       

      (f)           
If any Lender shall fail to make
any payment required to be made by it pursuant to Section
2.05, 2.06(d) or (e), 2.07(b), 2.18(e) or 9.03(c), then the Administrative Agent may, in
its discretion (notwithstanding any contrary provision hereof), (i) apply any amounts thereafter received
by the Administrative Agent for the account of such Lender to satisfy such
Lender’s obligations under such Sections until all such unsatisfied obligations
are fully paid and/or (ii) deposit any such amounts in a segregated account
as cash collateral for, and apply any such amounts to, any future funding
obligations of such Lender under such Sections; application of amounts pursuant
to (i) and (ii) above shall be made in such order a may
be determined by the Administrative Agent in its discretion.

       

      Section
2.19          Mitigation
Obligations; Replacement of Lenders.

       

      (a)           If any Lender requests compensation
under Section
2.15, or if the Borrower is
required to pay any additional amount to any Lender or any Governmental
Authority for the account of any Lender pursuant to Section
2.17, then such Lender shall use reasonable
efforts to designate a different lending office for funding or booking its Loans
hereunder or to assign its rights and obligations hereunder to another of its
offices, branches or affiliates, if, in the judgment of such Lender, such
designation or assignment (i) would eliminate or reduce amounts
payable pursuant to Section
2.15 or 2.17, as the case may be, in the future and
(ii) would not subject such Lender to any
unreimbursed cost or expense and would not otherwise be disadvantageous to such
Lender.  The Borrower hereby agrees to pay all reasonable costs and
expenses incurred by any Lender in connection with any such designation or
assignment promptly
following written demand (including documentation supporting such
demand).

       

      
        
          
          

        

        
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      (b)           If any Lender requests compensation
under Section
2.15, or if the Borrower is
required to pay any additional amount to any Lender or any Governmental
Authority for the account of any Lender pursuant to Section
2.17, or if any Lender
becomes a Defaulting Lender, then the Borrower may, at its sole expense and
effort, upon notice to such Lender and the Administrative Agent, require such
Lender to assign and delegate, without recourse (in accordance with and subject
to the restrictions contained in Section
9.04), all its interests,
rights and obligations under this Agreement to an assignee that shall assume
such obligations (which assignee may be another Lender, if a Lender accepts such
assignment); provided that (i) the Borrower shall have received the
prior written consent of the Administrative Agent (and if a Revolving Commitment
is being assigned, the Issuing Bank) to the extent required by Section
9.04, which consent shall
not unreasonably be withheld, conditioned or delayed, (ii) such Lender shall have received payment
of an amount equal to the outstanding principal of its Loans and participations
in LC Disbursements and
Swingline Loans, accrued
interest thereon, accrued fees and all other amounts payable to it hereunder,
from the assignee (to the extent of such outstanding principal and accrued
interest and fees) or the Borrower (in the case of all other amounts) and
(iii) in the case of any such assignment
resulting from a claim for compensation under Section
2.15 or payments required
to be made pursuant to Section
2.17, such assignment will
result in a reduction in such compensation or payments.  A Lender
shall not be required to make any such assignment and delegation if, prior
thereto, as a result of a waiver by such Lender or otherwise, the circumstances
entitling the Borrower to require such assignment and delegation cease to
apply.

       

      Section
2.20         Defaulting
Lenders.  Notwithstanding any
provision of this Agreement to the contrary, if any Lender becomes a Defaulting
Lender, then the following provisions shall apply for so long as such Lender is
a Defaulting Lender:

       

      (a)           fees shall cease to accrue on the
unfunded portion of the Revolving Commitment of such Defaulting Lender pursuant
to Section
2.12(a);

       

      (b)           the Commitment and Revolving Credit
Exposure of such Defaulting Lender shall not be included in determining whether
all Lenders or the Required Lenders have taken or may take any action hereunder
(including any consent to any amendment or waiver pursuant to Section
9.02), provided that any
waiver, amendment or modification requiring the consent of all Lenders or each
affected Lender which affects such Defaulting Lender differently than other
affected Lenders shall require the consent of such Defaulting
Lender;

       

      (c)           if any Swingline Exposure or LC Exposure exists at the time a Lender
becomes a Defaulting Lender then:

       

      (i)           all or any part of such Swingline Exposure and LC Exposure shall be reallocated among
the non-Defaulting Lenders in accordance with their respective Applicable
Percentages but only to the extent (x) the sum of all non-Defaulting Lenders’
Revolving Credit Exposures plus such Defaulting Lender’s Swingline Exposure and LC Exposure does not exceed the total of
all non-Defaulting Lenders’ Revolving Commitments and (y) the conditions set
forth in Section
4.02 are satisfied at such
time; and

       

      
        
          
          

        

        
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      (ii)           if the reallocation described in clause
(i) above cannot, or can only partially, be
effected, the Borrower shall within one Business Day following written notice by the Administrative Agent,
(x) first, prepay such
Swingline Exposure and (y) cash collateralize such Defaulting
Lender’s LC Exposure (after giving effect to any partial reallocation pursuant
to clause (i) above) in accordance with the
procedures set forth in Section
2.06(j) for so long as such
LC Exposure is outstanding;

       

      (iii)           if the Borrower cash collateralizes any
portion of such Defaulting Lender’s LC Exposure pursuant to Section
2.20(c), the Borrower shall
not be required to pay any fees to such Defaulting Lender pursuant to
Section
2.12(b) with respect to
such Defaulting Lender’s LC Exposure during the period such Defaulting Lender’s
LC Exposure is cash collateralized;

       

      (iv)           if the LC Exposure of the non-Defaulting
Lenders is reallocated pursuant to Section
2.20(c), then the fees
payable to the Lenders pursuant to Section
2.12(a) and Section
2.12(b) shall be adjusted
in accordance with such non-Defaulting Lenders’ Applicable Percentages;
or

       

      (v)           if any Defaulting Lender’s LC Exposure
is neither cash collateralized nor reallocated pursuant to Section
2.20(c), then, without
prejudice to any rights or remedies of the Issuing Bank or any Lender hereunder,
all facility fees that otherwise would have been payable to such Defaulting
Lender (solely with respect to the portion of such Defaulting Lender’s
Commitment that was utilized by such LC Exposure) and letter of credit fees
payable under Section
2.12(b) with respect to
such Defaulting Lender’s LC Exposure shall be payable to the Issuing Bank until
such LC Exposure is cash collateralized and/or reallocated;

       

      (d)           the Issuing Bank shall not be required
to issue, amend or increase any Letter of Credit, unless it is satisfied that
the related exposure will be 100% covered by the Commitments of the
non-Defaulting Lenders and/or cash collateral will be provided by the Borrower
in accordance with Section
2.20(c), and participating
interests in any such newly issued or increased Letter of Credit or newly made Swingline Loan
shall be allocated among
non-Defaulting Lenders in a manner consistent with Section
2.20(c)(i) (and Defaulting
Lenders shall not participate therein); and

       

      (e)           in the event and on the date that each
of the Administrative
Agent, the Borrower, the
Issuing Bank and the
Swingline Lender each
agrees that a Defaulting Lender has adequately remedied all matters that caused
such Lender to be a Defaulting Lender, then the Swingline Exposure and LC Exposure of the other Lenders shall
be readjusted to reflect the inclusion of such Lender’s Revolving Commitment and
on such date such Lender shall purchase at par such of the Loans (other than Swingline Loans) of the other Lenders as the Administrative Agent shall
determine may be necessary in order for such Lender to hold such Loans in
accordance with its Applicable Percentage.

       

      
        
          
          

        

        
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      Section
2.21          Returned
Payments.  If
after receipt of any payment which is applied to the payment of all or any part
of the Obligations, the Administrative Agent or any Lender is for any reason
compelled to surrender such payment or proceeds to any Person because such
payment or application of proceeds is invalidated, declared fraudulent, set
aside, determined to be void or voidable as a preference, impermissible setoff,
or a diversion of trust funds, or for any other reason, then the Obligations or
part thereof intended to be satisfied shall be revived and continued and this
Agreement shall continue in full force as if such payment or proceeds had not
been received by the Administrative Agent or such Lender.  The
provisions of this Section
2.21 shall be and remain
effective notwithstanding any contrary action which may have been taken by the
Administrative Agent or any Lender in reliance upon such payment or application
of proceeds.  The provisions of this Section
2.21 shall survive the
termination of this Agreement.

       

      ARTICLE
III

       

      Representations and
Warranties

       

      Each Loan
Party represents and warrants to the Lenders that:

       

      Section
3.01          Organization;
Powers.  Each of
the Loan Parties and its Subsidiaries is duly organized, validly existing and in
good standing (to the
extent applicable) under
the laws of the jurisdiction of its organization, has all requisite power and
authority to carry on its business as now conducted and, except where the
failure to do so, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect, is qualified to do business in,
and is in good standing in, every jurisdiction where such qualification is
required.

       

      Section
3.02          Authorization;
Enforceability.  The Transactions are within
each Loan Party’s organizational powers and have been duly authorized by all
necessary organizational actions and, if required, actions by equity
holders.  The Loan Documents to which each Loan Party is a party have
been duly executed and delivered by such Loan Party and constitute a legal,
valid and binding obligation of such Loan Party, enforceable in accordance with
its terms, subject to applicable bankruptcy, insolvency, reorganization,
moratorium or other laws affecting creditors’ rights generally and subject to
general principles of equity, regardless of whether considered in a proceeding
in equity or at law.

       

      Section
3.03          Governmental
Approvals; No Conflicts.  The Transactions
(a) do not require any consent or approval
of, registration or filing with, or any other action by, any Governmental
Authority, except such as have been obtained or made and are in full force and effect and
except for filings
necessary to perfect Liens created pursuant to the Loan Documents and
release existing Liens securing the DIP Credit Agreement, (b) will not violate any Requirement of Law
applicable to any Loan Party or any of its Subsidiaries, (c) will not violate or result in a default
under any material
indenture, agreement or
other instrument binding upon any Loan Party or any of its Subsidiaries or its
assets, and (d) will not result in the creation or
imposition of any Lien on any asset of any Loan Party or any of its
Subsidiaries, except Liens created pursuant to the Loan Documents and the Senior Notes
Documents.

       

      Section
3.04          Financial
Condition; No Material Adverse Change.  (a) The Borrower has heretofore furnished
to the Lenders its consolidated balance sheet and statements of income,
stockholders equity and cash flows (i) as of and for the fiscal year ended
December 31, 2009, reported on by PricewaterhouseCoopers LLP, independent public accountants, and
(ii) as of and for the fiscal quarter and
the portion of the fiscal year ended June 30, 2010, certified by one of its Financial
Officers.  Such financial statements
present fairly, in all material respects, the financial position and results of
operations and cash flows of the Borrower and its consolidated Subsidiaries as
of such dates and for such periods in accordance with GAAP, subject to year-end
audit adjustments and the absence of footnotes in the case of the statements
referred to in clause (ii) above.

       

      
        
          
          

        

        
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      (b)           No event, change or condition has
occurred that has had, or could reasonably be expected to have, a Material
Adverse Effect, since June 30, 2010.

       

      Section
3.05          Properties.  (a) As of the Effective Date, Schedule
3.05 sets forth the address of each parcel
of Real Property that is owned or leased by each
Loan Party.  As
of the Effective Date, each
of the Loan Parties’
material leases and
subleases is valid and enforceable in accordance with its terms (subject to applicable bankruptcy,
insolvency, reorganization, moratorium or other laws affecting creditors’ rights
generally and subject to general principles of equity, regardless of whether
considered in a proceeding in equity or at law) and is in full force and effect, and no
default by any party to any such lease or sublease exists, except for any default which could not
reasonably be expected, individually or in the aggregate, to result in a
Material Adverse Effect.  Each of the Loan Parties
and its Subsidiaries has good and indefeasible title to, or valid leasehold
interests in, or rights
to, all its material real and personal property, free of all
Liens other than those permitted by Section
6.02.

       

      (b)           Each of the Loan Parties and its Subsidiaries owns, or
is licensed to use, all
trademarks, tradenames, copyrights, patents and other intellectual
property necessary to its
business as currently conducted, a correct and complete list of all trademark
registrations and applications, patents and patent applications, and copyright
applications and registrations owned by a Loan Party or any of its Subsidiaries,
as of the date of this Agreement, is set forth on Schedule
3.05, and the use thereof by the Loan
Parties and their
respective Subsidiaries
does not infringe in any material respect upon the rights of any other Person,
and the Loan Parties’ rights thereto are not subject to any licensing agreement or
similar arrangement.

       

      Section
3.06          Litigation
and Environmental Matters.  (a) There are no actions, suits or
proceedings by or before any arbitrator or Governmental Authority pending
against or, to the knowledge of any Loan Party, threatened against or affecting the Loan Parties or any of their
Subsidiaries (i) as to which there is a reasonable
possibility of an adverse determination and that, if adversely determined, could
reasonably be expected, individually or in the aggregate, to result in a
Material Adverse Effect (other than the Disclosed Matters) or (ii) that involve this Agreement or the
Transactions.

       

      (b)           Except for the Disclosed
Matters, (i) no Loan Party nor any of its
Subsidiaries has received notice of any claim with respect to any Environmental
Liability or knows of any basis for any Environmental Liability that,
individually or in the
aggregate, could reasonably
be expected to result in a Material Adverse Effect, and (ii) no Loan Party nor any of its
Subsidiaries (A) has failed to comply with any
Environmental Law or to obtain, maintain or comply with any permit, license or
other approval required under any Environmental Law or (B) has become subject to any Environmental
Liability, in each case,
that, individually or in the aggregate, could reasonably be expected to result
in a Material Adverse Effect.

       

      
        
          
          

        

        
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      (c)   
         Since the date of this Agreement, there
has been no change in the status of the Disclosed Matters that, individually or
in the aggregate, has resulted in, or materially increased the likelihood of, a
Material Adverse Effect.

       

      Section
3.07          Compliance
with Laws and Agreements.  Each of the Loan Parties and their respective Subsidiaries is in compliance with all
Requirements of Law applicable to it or its property and all indentures,
agreements and other instruments binding upon it or its property, except where
the failure to do so, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect.  No Default has
occurred and is continuing.

       

      Section
3.08          Investment
Company Status.  No Loan Party nor any of
its Subsidiaries is required to be registered as
an “investment company” as
defined in, or subject to regulation under, the Investment Company Act of
1940.

       

      Section
3.09          Taxes.  Except as set forth on Schedule 3.09, each of the Loan Parties and their respective Subsidiaries has timely filed or caused
to be filed all Tax returns and reports required to have been filed and paid or caused to be paid all Taxes
required to have been paid by it, except (a) Taxes that are being contested in good
faith by appropriate proceedings and for which such Loan Party or such
Subsidiary, as applicable, has set aside on its books adequate
reserves or (b) Taxes in
respect of which the aggregate liability does not exceed $1,500,000.  Except as set forth on Schedule 3.09, as of the Effective Date,
no tax liens have been
filed and no claims are being asserted with respect to any such
taxes that have not been
discharged by the Reorganization Plan.

       

      Section
3.10          ERISA. Except as set forth on Schedule 3.10:

       

      (a)           No ERISA Event has occurred or is
reasonably expected to occur that, when taken together with all other such ERISA
Events for which liability is reasonably expected to occur, could reasonably be
expected to result in a Material Adverse Effect.

       

      (b)           Neither Borrower nor any of the
Borrower’s Subsidiaries or ERISA Affiliates has an Unfunded Pension Liability,
except as could not reasonably be expected to have a Material Adverse
Effect.

       

      (c)           Neither Borrower nor any of the
Borrower’s Subsidiaries or ERISA Affiliates has been assessed Withdrawal
Liability except as could not reasonably be expected to have a Material Adverse
Effect.

       

      (d)           All Plans have been operated and
administered in compliance with the Code, ERISA, and all applicable regulations
promulgated thereunder, except as could not reasonably be expected to have a
Material Adverse Effect.  There has been no prohibited transaction or
violation of fiduciary responsibilities with respect to any Plan except as could
not reasonably be expected to have a Material Adverse
Effect.

       

      
        
          
          

        

        
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      Section
3.11          Disclosure.  The Borrower has disclosed
to the Lenders all agreements, instruments and corporate or other restrictions
to which it or any Subsidiary is subject, and all other matters known to it,
that, individually or in the aggregate, could reasonably be expected to result
in a Material Adverse Effect.  None of the reports, historical financial statements, certificates or
other information furnished by or on behalf of any Loan Party to the
Administrative Agent or any
Lender pursuant to this
Agreement or any other Loan Document (other than projections, budgets,
estimates, forward looking information and general market data), as modified or supplemented by other
information so furnished
when taken as a whole,
contains any material misstatement of fact or omits to state any material fact
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading; provided that, with respect to projected
financial information, the Borrower represents only that such information was
prepared in good faith based upon assumptions believed to be reasonable at the
time delivered and, if such projected financial information was delivered prior
to the Effective Date, as of the Effective Date (it being understood that projections
are inherently uncertain and actual results may be materially different, and no
assurance can be given that the projected results will be realized and such
projections should not be viewed as a guarantee of performance).

       

      Section
3.12          Material
Agreements.  All
material agreements and contracts (other than any agreement or instrument
evidencing or governing Indebtedness) to which any Loan Party is a party or is
bound as of the date of this Agreement and with which the failure to comply is
reasonably likely to result in a Material Adverse Effect (the “Material
Agreements”) are listed on Schedule 3.12.   No Loan Party is in default in the
performance, observance or fulfillment of any of the obligations, covenants or
conditions contained in any Material Agreement to which it is a
party.

       

      Section
3.13          Solvency.  (a) Immediately after the consummation of
the Transactions to occur on the Effective Date, (i) the fair value (measured on a going concern value) of
the assets of the Borrower and its Subsidiaries, on a consolidated
basis, at a fair valuation, will exceed
the debts and liabilities,
subordinated, contingent or otherwise of the Borrower and its Subsidiaries,
on a consolidated basis;
(ii) the present fair saleable value
of the property of the
Borrower and its Subsidiaries, on a consolidated basis, will be greater than the amount that
will be required to pay the probable liability of its debts and other
liabilities, subordinated, contingent or otherwise of the Borrower and its Subsidiaries,
on a consolidated basis, as
such debts and other liabilities become absolute and matured; (iii) the Borrower and its Subsidiaries, on a
consolidated basis, will be able to pay their debts and liabilities, subordinated,
contingent or otherwise, as such debts and liabilities become absolute and
matured; and (iv) the Borrower and its Subsidiaries, on a
consolidated basis, will
not have unreasonably small capital with which to conduct the business in which they
are engaged as such
business is now conducted and is proposed to be conducted after the Effective
Date.  The amount
of contingent liabilities at any time shall be computed as the amount that, in
the light of all the facts and circumstances existing at such time, represents
the amount that can reasonably be expected to become an actual or matured
liability.

       

      (b)           No Loan Party intends to, or will permit
any of its Subsidiaries to, and no Loan Party believes that it or any of its
Subsidiaries will, incur debts beyond its ability to pay such debts as they
mature, taking into account the timing of and amounts of cash to be received by
it or any such Subsidiary and the timing of the amounts of cash to be payable on
or in respect of its Indebtedness or the Indebtedness of any such
Subsidiary.

       

      
        
          
          

        

        
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      Section
3.14          Insurance.  Schedule 3.14 sets forth a description of all
insurance maintained by or on behalf of the Loan Parties and the Subsidiaries as
of the Effective Date.  As of the Effective Date, all premiums in
respect of such insurance have been paid to the extent due.  The Borrower believes that
the insurance maintained by or on behalf of the Borrower and the Subsidiaries is
adequate.

       

      Section
3.15          Capitalization
and Subsidiaries.  Schedule 3.15 sets forth as of the Effective Date (a) a correct and complete list of the name
and relationship to the Borrower of each and all of the Borrower’s Subsidiaries,
(b) a true and complete listing of each
class of each of the Borrower’s authorized Equity Interests, of which all issued shares are validly issued,
outstanding, fully paid and
non-assessable, and
(c) the type of entity of the
Borrower  and each of its Subsidiaries.  All of the issued
and outstanding Equity Interests owned by any Loan Party has been (to the extent
such concepts are relevant with respect to such ownership interests) duly
authorized and issued and is fully paid and non-assessable.

       

      Section
3.16          Security
Interest in Collateral.  The provisions of this
Agreement and the other Loan Documents create legal and valid Liens on all the
Collateral in favor of the Administrative Agent, for the benefit of the
Administrative Agent and the Lenders, and when (i) financing statements and other
filings, including, without limitation any short form intellectual property
security agreements, fixture filings and other real estate filings, in
appropriate form are filed in the appropriate offices in the case of Liens
perfected by filing (provided, however, that additional filings may be necessary
to perfect the Administrative Agent’s Lien on any intellectual property acquired
after the date hereof), (ii) the Administrative Agent takes possession, control
or assignment of the Collateral with respect to which a security interest may be
perfected only by possession, control or assignment (which possession, control
or assignment shall be given to the Administrative Agent to the extent
possession or control by the Administrative Agent is required by each Collateral
Document) or (iii) the Administrative Agent’s Lien on any Collateral represented
by a certificate of title is noted (which notation shall be required to the
extent set forth in the Collateral Documents) in the case of Liens perfected by
notation, such Liens
constitute perfected and continuing Liens on the Collateral, securing the
Secured Obligations, enforceable against the applicable Loan Party and all third
parties (subject to
applicable bankruptcy, insolvency, reorganization, moratorium or other laws
affecting creditors’ rights generally and subject to general principles of
equity, regardless of whether considered in a proceeding in equity or at
law), and having priority
over all other Liens on the Collateral to the extent provided in the
Intercreditor Agreement except in the case of (a) Customary Permitted Liens, Liens set forth on Schedule
6.02 and Liens permitted by Section
6.02(d) or (e), to the extent any such Liens would
have priority over the Liens in favor of the Administrative Agent pursuant to
any applicable law or agreement, (b) Liens perfected only by
possession, control or
notation to the extent the
Administrative Agent has not obtained or does not maintain possession of such
Collateral and
(c) Liens in favor of the Notes Agent in
Notes Priority Collateral.  Notwithstanding the
foregoing, nothing in the Loan Documents shall require any Loan Party to make
any filings or take any actions to record or perfect the Administrative Agent’s
Lien in any intellectual property outside of the United
States.

       

      Section
3.17          Employment
Matters.  Except as set forth in Schedule
3.17, as of the Effective Date, there are no
strikes, lockouts or slowdowns against any Loan Party or any Subsidiary pending
or, to the knowledge of the Borrower, threatened.  The hours worked by
and payments made to employees of the Loan Parties and the Subsidiaries have not
been in violation of the Fair Labor Standards Act or any other applicable
Federal, state, local or foreign law dealing with such
matters.  Except
as set forth in Schedule
3.17, all payments due from any Loan Party or
any Subsidiary, or for which any claim may be made against any Loan Party or any
Subsidiary, on account of wages and employee health and welfare insurance and
other benefits, have been paid or accrued as a liability on the books of the
Loan Party or such Subsidiary.

       

      
        
          
          

        

        
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      Section
3.18          Common
Enterprise.  The
successful operation and condition of each of the Loan Parties is dependent on
the continued successful performance of the functions of the group of the Loan
Parties as a whole and the successful operation of each of the Loan Parties is
dependent on the successful performance and operation of each other Loan
Party.  Each Loan Party expects to derive benefit (and its board of
directors or other governing body has determined that it may reasonably be
expected to derive benefit), directly and indirectly, from (a) successful operations of each of the
other Loan Parties and (b) the credit extended by the Lenders to
the Borrower hereunder, both in their separate capacities and as members of the
group of companies.  Each Loan Party has determined that execution,
delivery, and performance of this Agreement and any other Loan Documents to be
executed by such Loan Party is within its purpose, will be of direct and
indirect benefit to such Loan Party, and is in its best
interest.

       

      Section
3.19          Margin
Regulations.  The
Borrower is not engaged in the business of extending credit for the purpose of
purchasing or carrying margin stock (within the meaning of Regulation U of the
Federal Reserve Board), and no proceeds of any Loan will be used to purchase or
carry any such margin stock or to extend credit to others for the purpose of
purchasing or carrying any such margin stock in contravention of Regulation T, U
or X of the Federal Reserve Board.

       

      ARTICLE
IV


       

      Conditions

       

      Section
4.01          Effective
Date.  The
obligations of the Lenders to make Loans and of the Issuing Bank to issue
Letters of Credit hereunder shall not become effective until the date on which
each of the following conditions is satisfied (or waived in accordance with
Section
9.02):

       

      (a)           Credit
Agreement and Loan Documents.  The Administrative Agent
(or its counsel) shall have received (i) from each party hereto either
(A) a counterpart of this Agreement signed
on behalf of such party or (B) written evidence satisfactory to the
Administrative Agent (which may include facsimile transmission of a signed
signature page of this Agreement) that such party has signed a counterpart of
this Agreement and (ii) duly executed copies of the Loan
Documents and such other certificates, documents, instruments and agreements as
the Administrative Agent shall reasonably request in connection with the
transactions contemplated by this Agreement and the other Loan Documents,
including the initial
Borrowing Request, any
promissory notes requested by a Lender pursuant to Section
2.10 payable to the order
of each such requesting
Lender and one or more
written opinions of the Loan Parties’ counsel, addressed
to the Administrative Agent, the Issuing Bank and the Lenders in form and substance (including local
counsel opinions with regard to perfection of the Administrative Agent’s Lien in
as-extracted collateral) reasonably satisfactory to the Administrative
Agent.

       

      
        
          
          

        

        
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      (b)           Financial
Statements and Projections.  The Lenders shall have
received (i) audited consolidated financial
statements of the Borrower for the 2009, 2008 and 2007 fiscal years,
(ii) unaudited interim consolidated
financial statements of Borrower for the fiscal month and quarter ended June 30, 2010, (iii) unaudited
consolidated statement of operations of Borrower for the fiscal month ended July
31, 2010 and (iv) satisfactory (x) quarterly projections
through December 31, 2011 and (y) annual projections through December 31,
2014.

       

      (c)           Closing
Certificates; Certified Certificate of Incorporation; Good Standing
Certificates.  The Administrative Agent
shall have received (i) a certificate on behalf of each Loan Party, dated the Effective
Date and executed by its Secretary or Assistant Secretary, which shall
(A) certify the resolutions of its Board of
Directors, members or other body authorizing the execution, delivery and
performance of the Loan Documents to which it is a party, (B) identify by name and title and bear the
signatures of the Financial Officers and any other officers of such Loan Party
authorized to sign the Loan Documents to which it is a party, and (C) contain appropriate attachments,
including the certificate or articles of incorporation or organization of each
Loan Party certified by the relevant authority of the jurisdiction of
organization of such Loan Party and a true and correct copy of its by-laws or
operating, management or partnership agreement, and (ii) a long form good standing certificate
for each Loan Party from its jurisdiction of organization and each jurisdiction where the conduct
of such Loan Party’s business activities or the ownership of its properties
necessitates qualification, in each case as of a recent date.

       

      (d)           No Default
Certificate.  The
Administrative Agent shall
have received a certificate, signed by the chief financial officer or chief executive officer of the Borrower on behalf of each Loan Party, on the initial Borrowing date (i) stating that no Default has occurred
and is continuing, (ii) stating that the representations and
warranties contained in Article
III are true and correct as
of such date, and (iii) certifying any other factual matters as
may be reasonably requested by the Administrative Agent.

       

      (e)           Fees.  The Lenders and the
Administrative Agent shall
have received all fees then due and payable, and all reasonable out-of-pocket expenses for which invoices have been
presented (including the reasonable fees and reasonable out-of-pocket expenses of legal counsel), on or before
the Effective Date.  All such amounts will be paid with proceeds of
the Senior Notes or
proceeds of Loans made on
the Effective Date and will be reflected in the funding instructions given by
the Borrower to the Administrative Agent on or before the Effective
Date.

       

      (f)           Lien
Searches.  The
Administrative Agent shall have received the results of a recent lien search in
each of the jurisdictions
where the Loan Parties
are organized or Material
Real Property is located,
and such search shall
reveal no Liens on any of
the assets of the Loan Parties except for (i) Liens permitted by Section
6.02 or (ii) Liens discharged on or prior to the Effective
Date pursuant to a pay-off letter or other documentation satisfactory to the
Administrative Agent.

       

      (g)           Pay-Off
Letter.  The
Administrative Agent shall have received a reasonably satisfactory pay-off letter for all loans under the DIP Credit
Agreement to be repaid from the proceeds of the initial Borrowing and the Senior Notes, confirming that all Liens upon any of
the property of the Loan Parties constituting Collateral will be terminated or
released concurrently with such payment.


      
        
           


        

        
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    (h)          Funding
Account.  The Administrative Agent shall have received a notice
setting forth the deposit account of the Borrower (the “Funding
Account”) to which the Lender is authorized by the Borrower to transfer
the proceeds of any Borrowings requested or authorized pursuant to this
Agreement.

     

    (i)           [Reserved.]

     

    (j)           Collateral Access and
Control Agreements.  The Administrative Agent shall have
received each (i) Collateral Access Agreement required to be provided pursuant
to Section 4.13 of the Security Agreement and, to the extent not obtained,
the Administrative Agent shall impose a rent or charges Reserve for each
applicable location in accordance with the definition of Eligible Inventory; and
(ii) Deposit Account Control Agreement required to be provided pursuant to
Section 4.14 of the Security Agreement.

     

    (k)          [Reserved.]

     

    (l)           Borrowing Base
Certificate.  The Lead Arrangers shall have received a
Borrowing Base Certificate which calculates the Borrowing Base as of a date
specified by the Administrative Agent prior to the Effective Date with customary
supporting documentation.

     

    (m)          Closing
Availability.  After giving effect to all Borrowings to be made
on the Effective Date and the issuance of any Letters of Credit on the Effective
Date and payment of all fees and expenses due hereunder, and with all of the
Loan Parties’ indebtedness, liabilities, and obligations current, the Borrower’s
Availability shall not be less than $23,500,000.

     

    (n)          Pledged Stock; Stock Powers;
Pledged Notes.  The Administrative Agent shall have confirmed
that the Notes Agent has received the certificates representing the shares of
Capital Stock pledged pursuant to the Security Agreement, together with an
undated stock power for each such certificate executed in blank by a duly
authorized officer of the pledgor thereof, and the Administrative Agent shall
have received each promissory note (if any) pledged to the Administrative Agent
pursuant to the Security Agreement endorsed (without recourse) in blank (or
accompanied by an executed transfer form in blank) by the pledgor
thereof.

     

    (o)          Filings, Registrations and
Recordings.  Each document (including any Uniform Commercial
Code financing statement) required by the Collateral Documents or under law or
reasonably requested by the Administrative Agent to be filed, registered or
recorded in order to create in favor of the Administrative Agent, for the
benefit of the Lenders, a perfected Lien on the Collateral described therein,
prior and superior in right to any other Person (other than with respect to
Liens expressly permitted by Section 6.02), shall
be in proper form for filing, registration or recordation.

     

    (p)          [Reserved.]

     

    (q)          Insurance.  The
Administrative Agent shall have received evidence of insurance coverage in form,
scope, and substance reasonably satisfactory to the Administrative Agent and
otherwise in compliance with the terms of Section 5.09 and
Section 4.12 of the Security Agreement.

     

    
      
         


      

      
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    (r)           Letter of Credit
Application.  The Administrative Agent shall have received a
properly completed letter of credit application (whether standalone or pursuant
to a master agreement, as applicable) if the issuance of a Letter of Credit
(other than the Existing Letters of Credit) will be required on the Effective
Date.  The Borrower shall have executed the Issuing Bank’s master
agreement for the issuance of commercial Letters of Credit.

     

    (s)           Tax
Withholding.  The Administrative Agent shall have received a
properly completed and signed IRS Form W-8 or W-9, as applicable, for each Loan
Party.

     

    (t)           Third Party Consents and
Approvals.  The Administrative Agent shall have received fully
executed copies of all consents and approvals, if any, required to be obtained
from any Governmental Authority or other Person (which in the case of
non-Governmental Authorities is limited to material consents and approvals) in
connection with the Transactions (including member and shareholder approvals, if
any), each of which shall have been obtained on satisfactory terms and shall be
in full force and effect.

     

    (u)          Reorganization Plan.
The Reorganization Plan shall be in form and substance reasonably acceptable to
the Administrative Agent in all material respects and shall have been confirmed
by a final order entered by the Bankruptcy Court (the “Confirmation Order”)
in form and substance reasonably acceptable to the Administrative Agent in all
material respects, which has not been stayed by the Bankruptcy Court or by any
court having jurisdiction to issue such stay.  The Confirmation Order
shall have been entered upon proper notice to all parties to be bound by the
Reorganization Plan, all as may be required by the Bankruptcy Code, the Federal
Rules of Bankruptcy Procedure, order of the Bankruptcy Court, and any applicable
local bankruptcy rules.  Moreover, (i) the time to appeal the
Confirmation Order or to seek review, rehearing or certiorari with respect to
the Confirmation Order must have expired, (ii) unless otherwise waived by the
Administrative Agent, no appeal or petition for review, rehearing or certiorari
with respect to the Confirmation Order may be pending and (iii) the Confirmation
Order must otherwise be in full force and effect.  The effective date
of the Reorganization Plan shall have occurred or shall occur substantially
concurrently with the Effective Date.

     

    (v)          Notes.  (i)
Each Loan Party shall have executed and delivered definitive financing
documentation with respect to the Senior Notes (including the Intercreditor
Agreement), on terms reasonably satisfactory to the Administrative Agent and
Lead Arrangers; and

     

    (ii)           the
conditions to the effectiveness of the documentation governing the Senior Notes
shall have been satisfied or waived on terms reasonably satisfactory to the
Administrative Agent, and concurrently the Borrower shall have received at least
$55,000,000 in gross cash proceeds from the issuance of the Senior
Notes.

     

    (w)          Pro Forma Balance
Sheets.  The Administrative Agent and the Lenders shall have
received a pro forma consolidated balance sheet of the Borrower as at the date
of the most recent balance sheet delivered pursuant to clause (b) above prepared to give
effect to the consummation of the funding of the initial Loans and the issuance
of the Senior Notes as if such funding and issuance had occurred on such date or
on the first day of such period, as applicable, and consistent in all material
respects with information previously provided by the Borrower.

     

    
      
         


      

      
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    (x)           Appraisals.  The
Administrative Agent shall have received asset appraisals of the Inventory and
Trucks, which appraisals shall be in form and substance satisfactory to the
Administrative Agent.

     

    (y)          Field
Examinations.  The Administrative Agent shall have received
updated field examinations and audits requested by it in connection with the
Transactions, with respect to the Borrowing Base Collateral and such other
information or materials as the Administrative Agent shall include within the
scope of such field examination and audit, all of which shall be in form and
substance satisfactory to the Administrative Agent.

     

    (z)           Corporate
Structure.  The Lead Arrangers shall be reasonably satisfied in
their sole judgment with the corporate (or other organizational) structure,
capital structure, other material debt instruments, material Accounts and
governing documents of the Loan Parties.

     

    (aa)         Patriot
Act.  The Administrative Agent shall have received at least
three days prior to the Effective Date, all documentation and other information
required by bank regulatory authorities under applicable “know-your-customer”
and anti-money laundering rules and regulations, including the Patriot
Act.

     

    (bb)        Other
Documents.  The Administrative Agent shall have received such
other documents as the Administrative Agent, the Issuing Bank, any Lender or
their respective counsel may have reasonably requested.

     

    The
Administrative Agent shall notify the Borrower and the Lenders of the Effective
Date, and such notice shall be conclusive and
binding.  Notwithstanding the foregoing, the obligations of the
Lenders to make Loans and of the Issuing Bank to issue Letters of Credit
hereunder shall not become effective unless each of the foregoing conditions is
satisfied (or waived pursuant to Section 9.02) at or
prior to 2:00 p.m. on September 27, 2010 (and, in the event such conditions are
not so satisfied or waived, the Commitments shall terminate at such
time).

     

    Section
4.02         Each Credit
Event.  The obligation of each Lender to make a Loan on the
occasion of any Borrowing, and of the Issuing Bank to issue, amend, renew or
extend any Letter of Credit, is subject to the satisfaction of the following
conditions:

     

    (a)           The
representations and warranties of the Borrower set forth in this Agreement shall
be true and correct in all material respects on and as of the date of such
Borrowing or the date of issuance, amendment, renewal or extension of such
Letter of Credit, as applicable, except to the extent such representations and
warranties expressly relate to an earlier date, in which case such
representations and warranties shall have been true and correct in all material
respects as of such earlier date, except that such materiality qualifier shall
not be applicable to representations and warranties that are already qualified
or modified by materiality in the text thereof.

     

    
      
         


      

      
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    (b)          At
the time of and immediately after giving effect to such Borrowing or the
issuance, amendment, renewal or extension of such Letter of Credit, as
applicable, no Default shall have occurred and be continuing.

     

    (c)           After
giving effect to any Borrowing or the issuance of any Letter of Credit,
Availability is not less than zero.

     

    Each
Borrowing and each issuance, amendment, renewal or extension of a Letter of
Credit shall be deemed to constitute a representation and warranty by the
Borrower on the date thereof as to the matters specified in paragraphs (a), (b)
and (c) of this Section.

     

    Notwithstanding
the failure to satisfy the conditions precedent set forth in paragraphs (a) or
(b) of this Section, unless otherwise directed by the Required Lenders, the
Administrative Agent may, but shall have no obligation to, continue to make
Loans and an Issuing Bank may, but shall have no obligation to, issue or cause
to be issued any Letter of Credit for the ratable account and risk of Lenders
from time to time if the Administrative Agent believes that making such Loans or
issuing or causing to be issued any such Letter of Credit is in the best
interests of the Lenders.

     

    Section
4.03         Determinations Under
Sections 4.01 and 4.02.  For purposes of determining
compliance with the conditions specified in Sections 4.01
and 4.02 that
are necessary for the Effective Date to have occurred, each applicable Lender
shall be deemed to have consented to, approved or accepted or to be satisfied
with each document or other matter required thereunder to be consented to or
approved by or acceptable or satisfactory to such Lender unless an officer of
the Administrative Agent responsible for the transactions contemplated by the
Loan Documents shall have received notice from such Lender prior to the
Effective Date specifying its objection thereto, and such Lender shall not have
made available to the Administrative Agent such Lender’s ratable portion of the
initial Borrowing.

     

    Section
4.04         Post-Closing
Conditions.  Within 75 days following the Effective Date (or
such later date as agreed by the Administrative Agent) and substantially
contemporaneously with the delivery of any mortgages under the Senior Notes
Documents, the Administrative Agent shall have received, with respect to each
parcel of Material Real Property which is subject to a first priority mortgage
in favor of the Notes Agent, each of the following, in form and substance
reasonably satisfactory to the Administrative Agent:

     

    (a)          a
second priority Lien Mortgage on such property;

     

    (b)          evidence
that a counterpart of the Mortgage has been delivered to the title company for
recording in the place necessary, in the Administrative Agent’s judgment, to
create a valid and enforceable second priority Lien in favor of the
Administrative Agent for the benefit of itself and the Lenders;

     

    (c)          ALTA
or other mortgagee’s title policy;

     

    (d)          an
opinion of counsel in the state in which such parcel of Material Real Property
is located in form and substance and from counsel reasonably satisfactory to the
Administrative Agent;

     

    
      
         


      

      
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    (e)           if
any such parcel of Material Real Property is determined by the Administrative
Agent to be in a flood zone, a flood notification form signed by the Borrower
and evidence that flood insurance is in place for the building and contents, all
in form and substance reasonably satisfactory to the Administrative Agent;
and

     

    (f)           an
ALTA survey prepared and certified to the Administrative Agent by a surveyor
reasonably acceptable to the Administrative Agent for each Material Real
Property.

     

    Notwithstanding
any provision of this Agreement, any failure to satisfy the conditions set forth
in this Section
4.04 shall constitute an immediate Event of Default without further
notice to the Loan Parties.

     

    ARTICLE
V

     

    Affirmative
Covenants

     

    Until the
Commitments have expired or been terminated and the principal of and interest on
each Loan and all fees payable hereunder shall have been paid in full and all
Letters of Credit, Banking Services Obligations and Swap Obligations shall have
expired, terminated, been cash collateralized or backstopped to the
Administrative Agent’s satisfaction and all LC Disbursements shall have been
reimbursed, each Loan Party executing this Agreement covenants and agrees,
jointly and severally with all of the Loan Parties, with the Lenders
that:

     

    Section
5.01          Financial Statements;
Borrowing Base and Other Information.  The Borrower will
furnish to the Administrative Agent and each Lender:

     

    (a)           within
90 days after the end of each fiscal year of the Borrower, its audited
consolidated balance
sheet and related statements of operations, stockholders’ equity and cash flows
as of the end of and for such year, setting forth in each case in comparative
form the figures for the previous fiscal year, all reported on by a “Big Four”
independent public accounting firm or other independent public accountants
reasonably acceptable to the Administrative Agent (without a “going concern” or
like qualification or exception and without any qualification or exception as to
the scope of such audit (other than with respect to the 2010 audit solely with
respect to bankruptcy matters)) to the effect that such consolidated financial
statements present fairly in all material respects the financial condition and
results of operations of the Borrower and its consolidated Subsidiaries on a
consolidated basis in accordance with GAAP consistently applied, accompanied by
any management letter, if available, prepared by said accountants;

     

    (b)          within
45 days after the end of each of the first three fiscal quarters of the
Borrower, its unaudited consolidated balance sheet and related statements of
operations, stockholders’ equity and cash flows as of the end of and for such
fiscal quarter and the then elapsed portion of the fiscal year, setting forth in
each case in comparative form the figures for the corresponding period or
periods of (or, in the case of the balance sheet, as of the end of) the previous
fiscal year and the Projections, all certified by one of its Financial Officers
as presenting fairly in all material respects the financial condition and
results of operations of the Borrower and its consolidated Subsidiaries on a
consolidated basis in accordance with GAAP consistently applied, subject to
normal year-end audit adjustments and the absence of footnotes, together with a
narrative discussion and analysis of the financial condition and results of
operations of the Borrower and its Subsidiaries for the applicable fiscal
quarter;

     

    
      
         


      

      
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    (c)           within
30 days after the end of each fiscal month of the Borrower, its unaudited
consolidated balance sheet and related statements of operations as of the end of
and for such fiscal month and the then elapsed portion of the fiscal year,
setting forth in each case in comparative form the figures for the corresponding
month and year-to-date periods of the previous fiscal year, all certified by one
of its Financial Officers as presenting fairly in all material respects the
financial condition and results of operations of the Borrower and its
consolidated Subsidiaries on a consolidated basis in accordance with GAAP
consistently applied, subject to normal year-end audit adjustments and the
absence of footnotes, together with updates to the most recently delivered
narrative discussion and analysis described in clause (b)(ii);

     

    (d)          concurrently
with any delivery of financial statements under clause (a) or (b) or (c) above, a
certificate of a Financial Officer of the Borrower in substantially the form of
Exhibit
D (i) certifying, in the case of the financial statements delivered
under clause (b) or (c), as presenting
fairly in all material respects the financial condition and results of
operations of the Borrower and its consolidated Subsidiaries on a consolidated
basis in accordance with GAAP consistently applied, subject to normal year-end
audit adjustments and the absence of footnotes, (ii) certifying as to whether a
Default has occurred and is continuing and, if a Default has occurred and is
continuing, specifying the details thereof and any action taken or proposed to
be taken with respect thereto, (iii) setting forth reasonably detailed
calculations with respect to Sections 6.12 and 6.13 (commencing
September 30, 2011 irrespective of whether the FCCR Commencement Date has
occurred), in the case of the financial statements delivered under clauses (a) and (b) for Section 6.12 and the
financial statements delivered under clauses (a) or (b) and (c) for Section 6.13 and (iv)
stating whether any change in GAAP or in the application thereof has occurred
since the date of the audited financial statements referred to in Section 3.04 and, if
any such change has occurred, specifying the effect of such change on the
financial statements accompanying such certificate;

     

    (e)           concurrently
with any delivery of financial statements under clause (a) above, if
reasonably available, a certificate of the accounting firm that reported on such
financial statements stating whether they obtained knowledge during the course
of their examination of such financial statements of any Default (which
certificate may be limited to the extent required by accounting rules or
guidelines);

     

    (f)           concurrently
with any delivery of  financial statements
under clauses (a) or (b) above, (i) a
certificate of a Responsible Officer of the Borrower certifying that the
corporate chart attached thereto (or the last corporate chart delivered pursuant
to this clause (f)) is true,
correct, complete and current in all material respects as of the date of such
financial statements and (ii) a certificate of a Responsible Officer of the
Borrower in form and substance reasonably satisfactory to the Administrative
Agent that all certificates, statements, updates and other documents (including
updated schedules) required to be delivered pursuant to the Pledge and Security
Agreement by any Loan Party in the preceding fiscal quarter have been delivered
thereunder (or such delivery requirement was otherwise duly waived or
extended).  The reporting requirements set forth in this clause (f) are in
addition to, and are not intended to and shall not replace or otherwise modify,
any obligation of any Loan Party under any Loan Document (including other notice
or reporting requirements);

     

    
      
         


      

      
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    (g)          within 30 days
after the end of each fiscal year of the Borrower, a copy of the plan and
forecast (including a projected consolidated balance sheet, income statement and
funds flow statement) of the Borrower and its Subsidiaries for each quarter of
the upcoming fiscal year (the “Projections”)
in form reasonably satisfactory to the Administrative Agent;

     

    (h)          within
15 days of the end of each calendar month or as may be requested by the
Administrative Agent if an Event of Default has occurred and is continuing, as
of the period then ended, a Borrowing Base Certificate and supporting
information in connection therewith, together with any additional reports with
respect to the Borrowing Base as the Administrative Agent may reasonably
request; provided that a Borrowing
Base Certificate shall be delivered weekly within 3 Business Days after the end
of each calendar week if Availability is less than $12,500,000 at any
time;

     

    (i)           within
15 days of the end of each calendar month, as of the period then ended, all
delivered electronically in a text formatted file acceptable to the
Administrative Agent:

     

    (i)           a
detailed aging of the Borrowing Base Contributors’ Accounts, by customer, aged
by invoice date or due  date, as available, and reconciled to the
Borrowing Base Certificate delivered as of such date prepared in a manner
reasonably acceptable to the Administrative Agent;

     

    (ii)          a
schedule detailing the Borrowing Base Contributors’ Inventory, in form
reasonably satisfactory to the Administrative Agent, (A) by location, by class
(raw material, work-in-process and finished goods), by product type, which
Inventory shall be valued at the lower of cost (determined on a first-in,
first-out basis) or market and adjusted for Reserves as the Administrative Agent
has previously indicated to the Borrower are deemed by the Administrative Agent
to be appropriate, and (B) reconciled to the Borrowing Base Certificate
delivered as of such date;

     

    (iii)         a
worksheet of calculations prepared by the Borrower to determine Eligible
Accounts and Eligible Inventory, such worksheets detailing the Accounts and
Inventory excluded from Eligible Accounts and Eligible Inventory and the
reason for such exclusion;

     

    (iv)         a
reconciliation of the Borrowing Base Contributors’ Accounts and Inventory
between the amounts shown in the Borrowing Base Contributors’ general ledgers
and financial statements and the reports delivered pursuant to clauses (i) and
(ii) above; and

     

    (v)          a
reconciliation of the loan balance per the Borrower’s general ledger to the loan
balance under this Agreement;

     

    (j)           within
20 days of the end of each calendar month and during the continuance of an Event
of Default, at such other times as may be requested by the Administrative Agent,
with respect to the Eligible Trucks of the Borrowing Base Contributors, a
certificate setting forth, as of the month then ended, all delivered
electronically in a text formatted file acceptable to the Administrative
Agent:

     

    
      
         


      

      
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    (i)           a
summary report of the Trucks of the Borrowing Base Contributors (differentiating
with respect to Eligible Trucks and all other Trucks), indicating, if available,
changes in value and depreciation amounts;

     

    (ii)          a
list of Trucks of the Borrowing Base Contributors purchased or otherwise
acquired during such period, setting forth the following information to the
extent available:  the date of acquisition, the manufacturer, the year
made, the model, the vehicle identification number, the owner, State in which it
is titled, the Certificate of Title identification number and the license plate
number, together with a copy of the invoice, purchase order, registration or
other document setting forth the vehicle identification number of such
vehicle;

     

    (iii)         a
summary report of Eligible Trucks of the Borrowing Base Contributors sold or
contracted for sale during such period;

     

    (iv)         a
report reconciling the records of the Borrowing Base Contributors against the
most recent report of the Administrative Agent with respect to the Eligible
Trucks; and

     

    (v)          any
other information relating to the Trucks as the Administrative Agent may
reasonably request;

     

    (k)           within
15 days of the end of each calendar month, as of the month then ended, a
schedule of the Borrower’s accounts payable, delivered electronically in a text
formatted file reasonably acceptable to the Administrative Agent, which will
include, commencing with the month ending October 31, 2010, an aging of
such accounts payable;

     

    (l)           at
such times as may be requested by the Administrative Agent, a list of all
customer addresses, delivered electronically in a text formatted file acceptable
to the Administrative Agent;

     

    (m)         promptly
upon the Administrative Agent’s request:

     

    (i)           copies
of invoices in connection with the invoices issued by the Borrowing Base
Contributors in connection with any Accounts, credit memos, shipping and
delivery documents, and other information related thereto;

     

    (ii)          copies
of purchase orders, invoices, and shipping and delivery documents in connection
with any Inventory or Trucks purchased by any Borrowing Base Contributor;
and

     

    (iii)         a
schedule detailing the balance of all intercompany accounts of the Loan
Parties;

     

    (n)          promptly
upon request by the Administrative Agent, on a monthly basis, the Borrowing Base
Contributors’ sales journal, cash receipts journal (identifying trade and
non-trade cash receipts) and debit memo/credit memo journal;

     

    
      
         


      

      
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    (o)          promptly
upon request of the Administrative Agent, copies of all tax returns filed by any
Loan Party with the U.S. Internal Revenue Service;

     

    (p)          [Reserved.]


     

    (q)          promptly
after the same become publicly available, copies of all periodic and other
reports, proxy statements and other materials filed by the Borrower or any
Subsidiary with the Securities and Exchange Commission, or any Governmental
Authority succeeding to any or all of the functions of said Commission, or with
any national securities exchange, or distributed by the Borrower to its
shareholders generally, as the case may be; and

     

    (r)           promptly
following any request therefor, such other information regarding the operations,
business affairs and financial condition of the Borrower or any Subsidiary, or
compliance with the terms of this Agreement, as the Administrative Agent or any
Lender may reasonably request.

     

    Notwithstanding
the foregoing, the obligations in paragraphs (a) and (b) of this Section 5.01 shall be
satisfied with respect to financial information of Borrower and its Subsidiaries
by furnishing (A) the applicable financial statements of Borrower or (B)
Borrower's Form 10-K or 10-Q, as applicable, filed with the
SEC.  Documents required to be delivered pursuant to Section 5.01(a),
(b) and (p) may be delivered
electronically and if so delivered, shall be deemed to have been delivered on
the date (i) on which the Borrower posts such documents via EDGAR, or provides a
link thereto on its website on the Internet at www.us-concrete.com/; or (ii) on
which such documents are posted on the Borrower’s behalf on
IntraLinks/IntraAgency or another relevant website, if any, to which each Lender
and the Administrative Agent have access (whether a commercial, third-party
website or whether sponsored by the Administrative Agent).

     

    Section
5.02          Notices of Material
Events.  The Borrower will furnish to the Administrative Agent
and each Lender prompt written notice upon a Loan Party obtaining knowledge of
the following:

     

    (a)           the
occurrence of any Default;

     

    (b)          receipt
of any notice of any governmental investigation or any litigation or proceeding
commenced or threatened against any Loan Party that (i) seeks damages in excess
of $1,000,000 (excluding any amount covered by third party insurance as to which
the insurer has not declined coverage), (ii) seeks injunctive relief that
affects or impairs the use of any Collateral, (iii) is asserted or instituted
against any Plan, its fiduciaries or its assets involving a claim in excess of
$500,000, (iv) alleges criminal misconduct by any Loan Party, (v) alleges the
violation of any law regarding, or seeks remedies in connection with, any
Environmental Laws and which could reasonably be expected to result in
expenditures by any Loan Party in excess of $500,000, (vi) contests any tax,
fee, assessment, or other governmental charge in excess of $500,000, or (vii)
involves any product recall;

     

    (c)           any
Lien (other than any Lien permitted by Section 6.02
excluding paragraphs (e), (g), (h), (j) and (k) thereof) or material claim made
or asserted against any of the Collateral;

     

    
      
         


      

      
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    (d)          any
judgment rendered against any Loan Party in excess of $1,000,000;

     

    (e)           any
and all default notices received under or with respect to any leased location or
public warehouse where Borrowing Base Collateral is located (which shall be
delivered within two Business Days after receipt thereof);

     

    (f)           all
material amendments to Material Agreements, together with a copy of each such
amendment;

     

    (g)          the
fact that a Loan Party has entered into a Swap Agreement or an amendment to a
Swap Agreement, together with copies of all agreements evidencing such Swap
Agreement or amendments thereto (which shall be delivered within two Business
Days);

     

    (h)          the
occurrence of any ERISA Event that, alone or together with any other ERISA
Events that have occurred, could reasonably be expected to result in liability
of the Borrower and its Subsidiaries in an aggregate amount exceeding
$1,000,000; and

     

    (i)           any
other development that results in, or could reasonably be expected to result in,
a Material Adverse Effect.

     

    Each
notice delivered under this Section shall be accompanied by a statement of a
Financial Officer or other Responsible Officer of the Borrower setting forth the
details of the event or development requiring such notice and any action taken
or proposed to be taken with respect thereto.

     

    Section
5.03         Existence; Conduct of
Business.  Each Loan Party will, and will cause each Subsidiary
to, (a) do or cause to be done all things necessary to preserve, renew and keep
in full force and effect (i) its legal existence and (ii) the rights,
qualifications, licenses, permits, franchises, governmental authorizations,
intellectual property rights, licenses and permits in its reasonable business
judgment necessary to the conduct of its business, and maintain all requisite
authority to conduct its business in each jurisdiction in which its business is
conducted; provided that the
foregoing shall not prohibit any merger, consolidation, liquidation or
dissolution permitted under Section 6.03 or
dispositions, sales, transfers or leases permitted by Section 6.05 and
(b) except as permitted by Section 6.03, carry
on and conduct its business in substantially the same manner and in
substantially the same fields of enterprise as it is presently
conducted.

     

    Section
5.04         Payment of
Obligations.  Each Loan Party will, and will cause
each  Subsidiary to, pay or discharge all Material Indebtedness and
all other material liabilities and obligations, including Taxes, before the same
shall become delinquent or in default, except where (a) the validity or amount
thereof is being contested in good faith by appropriate proceedings, (b) such
Loan Party or such Subsidiary has set aside on its books adequate reserves with
respect thereto in accordance with GAAP and (c) the failure to make payment
pending such contest could not reasonably be expected to result in a Material
Adverse Effect.

     

    Section
5.05         Maintenance of
Properties.  Each Loan Party will, and will cause each
Subsidiary to, keep and maintain all property material to the conduct of its
business in good working order and condition, ordinary wear and tear and
casualty and condemnation excepted.

     

    
      
         


      

      
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    Section
5.06         Books and Records;
Inspection Rights.  Each Loan Party will, and will cause each
Subsidiary to, (a) keep proper books of record and account in which full, true
and correct entries are made of all dealings and transactions in relation to its
business and activities and (b) permit any representatives designated by the
Administrative Agent or any Lender (including employees of the Administrative
Agent, any Lender or any consultants, accountants, lawyers and appraisers
retained by the Administrative Agent), upon reasonable prior notice during
normal business hours, to visit and inspect its properties, to examine and make
extracts from its books and records and to discuss its affairs, finances and
condition with its officers and independent accountants (and a Responsible
Officer of the Borrower shall be entitled to, but not required to, participate
in such discussions with the independent accountants so long as the
participation of such Responsible Officer does not result in an unreasonable
delay in such discussions), all at such reasonable times and as often as
reasonably requested.  The
Loan Parties acknowledge that the Administrative Agent, after exercising its
rights of inspection, may prepare and distribute to the Lenders certain Reports
pertaining to the Loan Parties’ assets for internal use by the Administrative
Agent and the Lenders, which shall in each case be subject to the terms and
conditions of Section
9.12.

     

    Section
5.07         Compliance with
Laws.  Each Loan Party will, and will cause each Subsidiary to,
comply with all Requirements of Law applicable to it or its property, except
where the failure to do so, individually or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect.

     

    Section
5.08         Use of
Proceeds.  The proceeds of the Loans and the Letters of Credit
are being used by the Borrower (and, to the extent distributed to them by the
Borrower, each other Loan Party) solely (a) for operating expenses, working
capital and other general corporate purposes of the Borrower, the other Loan
Parties and their respective subsidiaries, (b) to pay transaction costs, fees
and expenses incurred in connection with this Agreement, the Reorganization Plan
and the transactions contemplated thereunder and hereby and to fund payments
required to be made under and in accordance with the Reorganization Plan and (c)
on the Effective Date to repay in full the obligations outstanding under the DIP
Credit Agreement.  No part of the proceeds of any Loan and no Letter
of Credit will be used, whether directly or indirectly, for any purpose that
entails a violation of any of the Regulations of the Board, including
Regulations T, U and X.

     

    Section
5.09         Insurance.  Each
Loan Party will, and will cause each Subsidiary to, maintain with financially
sound and reputable carriers having a financial strength rating of at least A by
A.M. Best Company (a) insurance in such amounts (with no greater risk retention)
and against such risks (including loss or damage by fire and loss in transit;
theft, burglary, pilferage, larceny, embezzlement, and other criminal
activities; business interruption; and general liability) and such other
hazards, as is customarily maintained by companies of established repute engaged
in the same or similar businesses operating in the same or similar locations and
(b) all insurance required pursuant to the Collateral Documents.  The
Borrower will furnish to the Lenders, promptly upon request of the
Administrative Agent, information in reasonable detail as to the insurance so
maintained.

     

    
      
         


      

      
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    Section
5.10         Casualty and
Condemnation.  The Borrower (a) will furnish to the
Administrative Agent and the Lenders prompt written notice of any casualty,
loss, destruction or other insured damage to the Collateral or the
commencement of any action or proceeding for the taking of any portion of the
Collateral or interest therein under power of eminent domain or by condemnation
or similar proceeding, in each case in the amount of $500,000 or more and (b)
will ensure that the Net Proceeds of any such event (whether in the form of
insurance proceeds, condemnation awards or otherwise) are collected and applied
in accordance with the applicable provisions of this Agreement and the
Collateral Documents.

     

    Section
5.11         Appraisals.  At
any time that the Administrative Agent orders an Appraisal of the Inventory or
Trucks of the Borrower and its Subsidiaries, the Borrower and its Subsidiaries
will cooperate with and assist in the preparation of such Appraisal, which shall
include, without limitation, information required by applicable law and
regulations; provided, however, that if no
Event of Default has occurred and is continuing, one such Appraisal per calendar
year for Inventory and Trucks, respectively, shall be at the sole expense of the
Loan Parties, and if any Event of Default exists, then each Appraisal commenced
during the existence of such Event of Default shall be at the expense of the
Loan Parties.

     

    Section
5.12         Depository
Banks.  The Borrower and each Subsidiary will utilize the
Administrative Agent as its principal depository bank, including for the
maintenance of operating, administrative, cash management, collection activity,
and other deposit accounts for the conduct of its business.

     

    Section
5.13         Additional Collateral;
Further Assurances.  (a) Subject to applicable law and the
Intercreditor Agreement, the Borrower and each other Loan Party shall cause each
of its Subsidiaries (other than Foreign Subsidiaries) formed or acquired after
the date of this Agreement in accordance with the terms of this Agreement to
become a Loan Party by executing the Joinder Agreement set forth as Exhibit E hereto (the
“Joinder
Agreement”) within 10 days of formation or acquisition as applicable (or
such later date as agreed to by the Administrative Agent in its reasonable
judgment).  Upon execution and delivery thereof, each such Person (i)
shall automatically become a Loan Guarantor hereunder and thereupon shall have
all of the rights, benefits, duties, and obligations in such capacity under the
Loan Documents and (ii) subject to the terms, conditions and provisions of
the Intercreditor Agreement will grant Liens to the Administrative Agent, for
the benefit of the Administrative Agent and the Lenders, in any property of such
Loan Party which constitutes Collateral, including any Material Real
Property located in the U.S. owned by any Loan Party in each case within 10 days
for Collateral other than Material Real Property or 75 days in the case of
Material Real Property (or such later date as agreed to by the Administrative
Agent in its reasonable judgment) or as otherwise set forth in any Collateral
Document.

     

    (b)          The
Borrower and each other Loan Party will cause (i) 100% of the issued and
outstanding Equity Interests of each of its Subsidiaries (other than Foreign
Subsidiaries and the Excluded Joint Venture) and (ii) 66% of the issued and
outstanding Equity Interests entitled to vote (within the meaning of Treas. Reg.
Section 1.956-2(c)(2)) and 100% of the issued and outstanding Equity Interests
not entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2) in
each Foreign Subsidiary directly owned by the Borrower or any domestic
Subsidiary to be subject at all times to a second priority, perfected Lien
(subject to Liens permitted by Section 6.02) in
favor of the Administrative Agent pursuant to the terms and conditions of the
Loan Documents (including the Intercreditor Agreement).

     

    
      
         


      

      
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    (c)          Without
limiting the foregoing, but subject to the terms, conditions and provisions of
the Loan Documents, each Loan Party will, and will cause each Subsidiary (other
than Foreign Subsidiaries) to, execute and deliver, or cause to be executed and
delivered, to the Administrative Agent such documents, agreements and
instruments, and will take or cause to be taken such further actions (including
the filing and recording of financing statements, fixture filings, mortgages,
deeds of trust and other documents and such other actions or deliveries of the
type required by Section 4.01, as
applicable), which may be required by law or which the Administrative Agent may,
from time to time, reasonably request to carry out the terms and conditions of
this Agreement and the other Loan Documents and to ensure perfection and
priority of the Liens created or intended to be created by the Collateral
Documents, all at the expense of the Loan Parties.

     

    (d)          Subject
to the terms, conditions and provisions of the Intercreditor Agreement, if any
material assets (including any Material Real Property or improvements thereto or
any interest therein) are acquired by the Borrower or any Loan Guarantor after
the Effective Date (other than assets constituting Collateral under the Security
Agreement that become subject to the Lien in favor of the Security Agreement
upon acquisition thereof) constituting Collateral, the Borrower will promptly
notify the Administrative Agent and the Lenders thereof, and, if requested by
the Administrative Agent or the Required Lenders, within 10 days for Collateral
other than Material Real Property or 75 days in the case of Material Real
Property (or such later date as agreed to by the Administrative Agent in its
reasonable discretion or as otherwise set forth in any Collateral Document, the
Borrower will cause such assets to be subjected to a Lien securing the Secured
Obligations and will take, and cause the Loan Guarantor to take, such actions as
shall be necessary or reasonably requested by the Administrative Agent to grant
and perfect such Liens, including actions described in paragraph (c) of this
Section, all at the reasonable expense of the Loan Parties in each case in
accordance with the terms, conditions and provisions of the Loan
Documents.

     

    Section
5.14         Field
Examinations.  At any time that the Administrative Agent
reasonably requests, the Borrower will permit the Administrative Agent to
conduct field examinations with respect to all components of the Borrowing Base
Collateral and such other matters regarding the Loan Parties or the Collateral
as the Administrative Agent shall reasonably require; provided, however, the
Borrower shall only be required to reimburse the Administrative Agent for the
cost of three field examinations in any fiscal year, unless an Event of
Default exists, at which time each field examination commenced during the
existence of an Event of Default or shall be at the expense of the
Borrower.

     

    ARTICLE
VI


     

    Negative
Covenants

     

    Until the
Commitments have expired or terminated and the principal of and interest on each
Loan and all fees, expenses and other amounts payable under any Loan Document
have been paid in full and all Letters of Credit, Banking Services Obligations
and Swap Obligations have expired, terminated, been cash collateralized or
backstopped to the Administrative Agent’s satisfaction and all LC Disbursements
shall have been reimbursed, the Loan Parties covenant and agree, jointly and
severally, with the Lenders that:

     

    
      
         


      

      
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    Section
6.01         Indebtedness.  No
Loan Party will, nor will it permit any Subsidiary to, create, incur or suffer
to exist any Indebtedness, except:

     

    (a)          the
Secured Obligations;

     

    (b)          Indebtedness
existing on the date hereof and set forth in Schedule 6.01, including the
Senior Notes, and extensions and renewals of any such Indebtedness in
accordance with clause (f) hereof (but not any refinancing or replacement
thereof);

     

    (c)           Indebtedness
of the Borrower to any Subsidiary or the Excluded Joint Venture and of any
Subsidiary to the Borrower, any other Subsidiary or the Excluded Joint Venture,
provided that
(i) Indebtedness of any Subsidiary that is not a Loan Party to the Borrower or
any Subsidiary that is a Loan Party shall be subject to Section 6.04 and (ii)
Indebtedness of the Borrower to any Subsidiary and Indebtedness of any
Subsidiary that is a Loan Party to any Subsidiary that is not a Loan Party shall
be subordinated to the Secured Obligations on terms reasonably satisfactory to
the Administrative Agent;

     

    (d)          Guarantees
by the Borrower of Indebtedness of any Subsidiary or the Excluded Joint Venture
and by any Subsidiary of Indebtedness of the Borrower, any other Subsidiary or
the Excluded Joint Venture, provided that (i) the
Indebtedness of a Subsidiary so Guaranteed is permitted by this Section 6.01, (ii)
Guarantees by the Borrower or any Subsidiary that is a Loan Party of
Indebtedness of any Subsidiary that is not a Loan Party shall be subject to
Section 6.04
and (iii) Guarantees permitted under this clause (d) shall be subordinated to
the Secured Obligations of the applicable Subsidiary on the same terms as the
Indebtedness so Guaranteed is subordinated to the Secured
Obligations;

     

    (e)           Indebtedness
of the Borrower or any Subsidiary incurred to finance the acquisition,
construction or improvement of any fixed or capital assets (whether or not
constituting purchase money Indebtedness), including Trucks, Capital Lease
Obligations and any Indebtedness assumed in connection with the acquisition of
any such assets or secured by a Lien on any such assets prior to or in
connection with the acquisition thereof, and extensions, renewals and
replacements of any such Indebtedness so long as any such renewal, extension,
replacement or refunding is in an aggregate principal amount not greater than
the principal amount (plus accrued interest and any premium, fees or expenses
incurred in connection therewith); provided that (i)
such Indebtedness is incurred prior to or within 90 days after such acquisition
or the completion of such construction or improvement and (ii) the aggregate
principal amount of Indebtedness permitted by this clause (e) at any time
outstanding shall not exceed the greater of $20,000,000 and 12.5% of
Consolidated Net Tangible Assets;

     

    (f)           Indebtedness
which represents an extension, refinancing, replacement or renewal of any of the
Indebtedness described in clauses (b) and (k) hereof; provided
that, (i) the principal amount of such Indebtedness is not increased other than
by an amount equal to accrued interest, fees, expenses and premiums incurred in
connection therewith and the interest rate does not exceed the current market
rate for that type of Indebtedness, (ii) any Liens securing such
Indebtedness are not extended to any additional property of any Loan Party,
(iii) no Loan Party that is not originally obligated with respect to repayment
of such Indebtedness is required to become obligated with respect thereto, (iv)
such extension, refinancing, replacement or renewal does not result in a
shortening of the average weighted maturity of the Indebtedness so extended,
refinanced or renewed, (v) the terms of any such extension, refinancing,
replacement or renewal are not less favorable to the obligor thereunder than the
original terms of such Indebtedness taken as a whole in light of current market
conditions and (vi) if the Indebtedness that is refinanced, renewed, or extended
was subordinated in right of payment to the Secured Obligations, then the terms
and conditions of the refinancing, renewal, replacement or extension
Indebtedness must include subordination terms and conditions that are at least
as favorable to the Administrative Agent and the Lenders as those that were
applicable to the refinanced, renewed, or extended Indebtedness;

     

    
      
         


      

      
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    (g)          Indebtedness
owed to any person providing workers’ compensation, health, disability or other
employee benefits or property, casualty or liability insurance, pursuant to
reimbursement or indemnification obligations to such person, in each case
incurred in the ordinary course of business;

     

    (h)          Indebtedness
of the Borrower or any Subsidiary in respect of performance bonds, completion
guarantees, bid bonds, appeal bonds, surety bonds and similar obligations, in
each case provided in the ordinary course of business;

     

    (i)           Indebtedness
incurred in the ordinary course of business in connection with the financing of
insurance premiums;

     

    (j)           Indebtedness
arising from the honoring by a bank or other financial institution of a check,
draft or similar instrument inadvertently drawn against insufficient funds in
the ordinary course of business.

     

    (k)           Indebtedness
(including the deferred purchase price for a Permitted Acquisition) of any
Person that becomes a Subsidiary after the date hereof; provided that (i)
such Indebtedness exists at the time such Person becomes a Subsidiary and is not
created in contemplation of or in connection with such Person becoming a
Subsidiary or such Indebtedness is incurred to finance such Permitted
Acquisition and (ii) the aggregate principal amount of Indebtedness permitted by
this clause
(k)
shall not exceed $10,000,000 at any time outstanding;

     

    (l)           Indebtedness
under Swap Agreements entered into from time to time by any Loan Party or
Subsidiary in accordance with Section
6.07;

     

    (m)         Indebtedness
consisting of deferred purchase price or notes issued to officers, directors and
employees to purchase or redeem Equity Interests of a Loan Party in an amount
not to exceed $1,500,000 at any time;

     

    (n)          Indebtedness
in respect of netting services, overdraft protections and other cash management
arrangements, in each case in the ordinary course of business;

     

    (o)          Guarantees
by any Loan Party of Indebtedness or other obligations arising in the ordinary
course of business of any other Loan Party;

     

    
      
         


      

      
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    (p)          Indebtedness
constituting the obligation to make purchase price adjustments and indemnities
in connection with Permitted Acquisitions and dispositions permitted
hereunder;

     

    (q)          Subordinated
Indebtedness; and

     

    (r)           other
Indebtedness in an aggregate principal amount not exceeding $2,000,000 at any
time outstanding.

     

    Section
6.02         Liens.  No
Loan Party will, nor will it permit any Subsidiary to, create, incur, assume or
permit to exist any Lien on any property or asset now owned or hereafter
acquired by it, or assign or sell any income or revenues (including accounts
receivable) or rights in respect of any thereof, except:

     

    (a)           Liens
created pursuant to any Loan Document and Liens in favor of the Notes Agent
securing the obligations under the Senior Notes Agreement (in each case, the
priority of which shall be as provided in the Intercreditor
Agreement);

     

    (b)          Customary
Permitted Liens;

     

    (c)          any
Lien on any property or asset of the Borrower or any Subsidiary existing on the
date hereof and set forth in Schedule 6.02; provided that (i)
such Lien shall not apply to any other property or asset of the Borrower or
Subsidiary (other than proceeds and accessions thereof) unless otherwise
permitted hereby and (ii) such Lien shall secure only those obligations which it
secures on the date hereof and extensions, renewals and replacements thereof
that do not increase the outstanding principal amount thereof (other than by an
amount equal to accrued interest, fees, expenses and premiums incurred in
connection thereof);

     

    (d)          Liens
on fixed or capital assets (including Trucks) acquired, constructed or improved
by the Borrower or any Subsidiary; provided that (i)
such security interests secure Indebtedness permitted by clause (e) of Section 6.01, (ii)
such security interests and the Indebtedness secured thereby are incurred prior
to or within 90 days after such acquisition or the completion of such
construction or improvement, (iii) the Indebtedness secured thereby does not
exceed 100% of the cost of acquiring, constructing or improving such fixed or
capital assets and (iv) such security interests shall not apply to any other
property or assets of the Borrower or Subsidiary (other than proceeds and
accessions thereof) unless otherwise permitted thereof;

     

    (e)          any
Lien on any property or asset (other than Accounts and Inventory) that is
acquired by the Borrower or any Subsidiary or existing on any property or asset
(other than Accounts and Inventory) of any Person that becomes a Loan Party
after the date hereof and that secures Indebtedness permitted by Section 6.01(k);
provided that
(i) such Lien shall not apply to any other property or assets of the Loan Party
(other than proceeds and accessions thereof) unless otherwise permitted thereof
and (ii) such Lien shall secure only those obligations which it secures on the
date of such acquisition or the date such Person becomes a Loan Party, as the
case may be and extensions, renewals, refinancings and replacements thereof that
do not increase the outstanding principal amount thereof (other than by any
amount equal to accrued interest, fees, expenses and premiums incurred in
connection herewith);

     

    
      
         


      

      
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    (f)           Liens
of a collecting bank arising in the ordinary course of business under Section
4-208 of the Uniform Commercial Code in effect in the relevant jurisdiction
covering only the items being collected upon;

     

    (g)          Liens
arising out of sale and leaseback transactions permitted by Section
6.06;

     

    (h)          Liens
granted by a Subsidiary that is not a Loan Party in favor of the Borrower or
another Loan Party in respect of Indebtedness owed by such
Subsidiary;

     

    (i)           Liens
securing Indebtedness permitted under Section 6.01(i),
provided that
(i) such Liens are limited to securing only the unpaid premiums under the
applicable insurance policy and (ii) such Liens only encumbered the proceeds of
the applicable insurance policy;

     

    (j)           Liens
securing obligations in an aggregate amount not to exceed $1,000,000 at any
time;

     

    (k)           Liens
resulting from the deposit of funds or evidences of Indebtedness in trust for
the purpose of defeasing or discharging Indebtedness of the Borrower or any
Subsidiary so long as such defeasance or discharge is otherwise permitted under
this Agreement;

     

    (l)           non-exclusive
licenses or sublicenses of intellectual property granted by any Loan Party in
the ordinary course of business;

     

    (m)          Liens
attaching solely to cash earnest money deposits in connection with any letter of
intent or purchase agreement in connection with a Permitted
Acquisition;

     

    (n)           Liens
arising by operation of law under Article 2 of the UCC in favor of reclaiming
seller of goods or buyer of goods;

     

    (o)           Security
given to a public or private utility or any Governmental Authority as required
in the ordinary course of business; and

     

    (p)           Liens
in the nature of the right of setoff in favor of counterparties to contractual
agreements with the Loan Parities in the ordinary course of
business.

     

    Notwithstanding
the foregoing, none of the Liens permitted pursuant to this Section 6.02 may at
any time attach to any Loan Party’s (i) Accounts, other than those permitted
under clauses (a) and
(i) of the definition of Customary Permitted Lien and clause (a) above
and (ii) Inventory, other than those permitted under clauses (a), (b) and
(i) of the definition of Customary Permitted Lien and clause (a)
above.

     

    
      
         


      

      
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    Section
6.03         Fundamental
Changes.  (a) No Loan Party will, nor will it permit any
Subsidiary to, merge into or consolidate with any other Person, or permit any
other Person to merge into or consolidate with it, or liquidate or dissolve,
except (x) in connection with any Permitted Acquisition or (y) that, if at the
time thereof and immediately after giving effect thereto no Event of Default
shall have occurred and be continuing (i) any Subsidiary of the Borrower may
merge into or consolidate with the Borrower in a transaction in which the
Borrower is the surviving corporation, (ii) any Loan Party (other than the
Borrower) may merge into or consolidate with any Loan Party in a transaction in
which the surviving entity is a Loan Party, (iii) any Subsidiary may
liquidate or dissolve if its assets are transferred, distributed or otherwise
distributed as a dividend to a Loan Party and (iv) any Subsidiary that is not a
Loan Party may liquidate or dissolve if the Borrower determines in good faith
that such liquidation or dissolution is in the best interests of the Borrower
and is not materially disadvantageous to the Lenders; provided that any
such merger involving a Person that is not a wholly owned Subsidiary immediately
prior to such merger shall not be permitted unless also permitted by Section
6.04.

     

    (b)          No
Loan Party will, nor will it permit any of its Subsidiaries to, engage in any
business other than businesses of the type conducted by the Borrower and its
Subsidiaries on the date of execution of this Agreement and businesses
reasonably related, incidental, ancillary, corollary, complementary thereto or a
reasonable extension thereof.

     

    Section
6.04         Investments, Loans,
Advances, Guarantees and Acquisitions.  No Loan Party will, nor
will it permit any Subsidiary to, purchase, hold or acquire (including pursuant
to any merger with any Person that was not a Loan Party and a wholly owned
Subsidiary prior to such merger) any capital stock, evidences of indebtedness or
other securities (including any option, warrant or other right to acquire any of
the foregoing) of, make or permit to exist any loans or advances to, Guarantee
any obligations of, or make or permit to exist any investment or any other
interest in, any other Person, or purchase or otherwise acquire (in one
transaction or a series of transactions) any assets of any other Person
constituting a business unit (whether through purchase of assets, merger or
otherwise) (each an “Investment”),
except:

     

    (a)           Permitted
Investments, subject to control agreements in favor of the Administrative Agent
for the benefit of the Lenders or otherwise subject to a perfected security
interest in favor of the Administrative Agent for the benefit of the Lenders to
the extent required by the Collateral Documents;

     

    (b)          Investments
in existence on the date of this Agreement and described in Schedule 6.04 and any
extensions, replacements or renewals thereof which do not result in an increase
in the amount thereof;

     

    (c)           Investments
by the Borrower and the Subsidiaries in Equity Interests in their respective
Subsidiaries, provided
that (i) any such Equity Interests held by a Loan Party shall be pledged
pursuant to the Security Agreement (subject to the limitations applicable to
common stock of a Foreign Subsidiary referred to in Section 5.13) and
(ii) the aggregate amount of investments by Loan Parties in Subsidiaries that
are not Loan Parties (together with outstanding intercompany loans permitted
under clause (ii) to the proviso to Section 6.04(d) and
outstanding Guarantees permitted under the proviso to Section 6.04(e))
shall not exceed $2,500,000 at any time outstanding (in each case
determined without regard to any write-downs or write-offs);

     

    
      
         


      

      
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    (d)           Investments
made by the Borrower to any Subsidiary and made by any Subsidiary to the
Borrower or any other Subsidiary, provided that (i) any
such loans and advances made by a Loan Party shall be evidenced by a promissory
note pledged pursuant to the Security Agreement and (ii) the amount of such
loans and advances made by Loan Parties to Subsidiaries that are not Loan
Parties (together with outstanding investments permitted under clause (ii) to
the proviso to Section
6.04(c) and outstanding Guarantees permitted under the proviso to Section 6.04(e))
shall not exceed $2,500,000 at any time outstanding (in each case determined
without regard to any write-downs or write-offs);

     

    (e)           Guarantees
constituting Indebtedness permitted by Section 6.01, provided that the
aggregate principal amount of Indebtedness of Subsidiaries that are not Loan
Parties that is Guaranteed by any Loan Party shall (together with outstanding
investments permitted under clause (ii) to the proviso to Section 6.04(c) and
outstanding intercompany loans permitted under clause (ii) to the proviso to
Section
6.04(d)) shall not exceed $2,500,000 at any time outstanding (in each
case determined without regard to any write-downs or write-offs);

     

    (f)           loans
or advances made by a Loan Party to its employees, officers and directors on an
arms-length basis (i) in the ordinary course of business consistent with past
practices for travel and entertainment expenses, relocation costs and similar
purposes up to a maximum of $500,000 in the aggregate at any one time
outstanding and (ii) to purchase Equity Interests of a Loan Party up to a
maximum of $2,500,000 in the aggregate at any one time outstanding, provided
that any such loans or advances described in this clause (ii) are
cashless;

     

    (g)          subject
to Sections 4.2(a) and 4.4 of the Security Agreement, notes payable, or stock or
other securities issued by Account Debtors to a Loan Party pursuant to
negotiated agreements with respect to settlement of such Account Debtor’s
Accounts in the ordinary course of business, consistent with past
practices;

     

    (h)          Investments
in the form of Swap Agreements permitted by Section
6.07;

     

    (i)           Investments
of any Person existing at the time such Person becomes a Subsidiary of the
Borrower or consolidates or merges with the Borrower or any of the Subsidiaries
(including in connection with a permitted acquisition) so long as such
investments were not made in contemplation of such Person becoming a Subsidiary
or of such merger;

     

    (j)           Investments
received in connection with the dispositions of assets permitted by Section
6.05;

     

    (k)           investments
constituting deposits described in clause (c) of the definition of the term
“Customary Permitted
Liens;”

     

    (l)           Permitted
Acquisitions;

     

    (m)         deposits,
prepayments and other credits to suppliers made in the ordinary course of
business consistent with the past practices of Borrower and its
Subsidiaries;

     

    (n)          Investments
in respect of Capital Expenditures permitted under Section
6.12;

     

    (o)          sales,
transfers, leases or dispositions to the extent permitted by Section 6.05, Section 6.09 and
other Loan Documents;

     

    
      
         


      

      
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    (p)          Loan
Parties may establish wholly owned Subsidiaries to the extent they comply with
Section
5.13;

     

    (q)          earnest
money required in connection with and to the extent permitted by Permitted
Acquisitions;

     

    (r)           Investments
by any Loan Party or a Subsidiary in the Excluded Joint Venture after the
Effective Date in an aggregate amount not to exceed $7,000,000;

     

    (s)           (i)
the acquisition and holding  of accounts receivables owing to the
Borrower or any Subsidiary if created or acquired in the ordinary course of
business and payable or dischargeable in accordance with customary terms, and
(ii) the endorsement of negotiable instruments for collection in the ordinary
course of business; and

     

    (t)           other
Investments not exceeding in the aggregate $1,500,000 at any time
outstanding.

     

    Section
6.05         Asset
Sales.  No Loan Party will, nor will it permit any Subsidiary
to, sell, transfer, lease or otherwise dispose of any asset, including any
Equity Interest owned by it, nor will the Borrower permit any Subsidiary to
issue any additional Equity Interest in such Subsidiary (other than to the
Borrower or another Subsidiary in compliance with Section 6.04),
except:

     

    (a)          sales,
transfers and dispositions of (i) inventory, cash and cash equivalents in the
ordinary course of business, (ii) used, obsolete, worn out or surplus equipment
or property in the ordinary course of business, (iii) Real Property that is
no longer necessary in or useful to the business of the Borrower or any of its
Subsidiaries in the ordinary course of business, (iv) non-core assets acquired
in a Permitted Acquisition and (v) disposition of the assets of or Excluded JV
Equity in the Excluded Joint Venture;

     

    (b)          sales,
transfers and dispositions to the Borrower or any Subsidiary, provided that any
such sales, transfers or dispositions involving a Subsidiary that is not a Loan
Party shall be made in compliance with Section
6.09;

     

    (c)          sales,
transfers and dispositions of accounts receivable in connection with the
compromise, settlement or collection thereof;

     

    (d)          sales,
transfers and dispositions of Permitted Investments and other Investments
permitted by clauses (i) and (k) of Section
6.04;

     

    (e)          sale
and leaseback transactions permitted by Section
6.06;

     

    (f)           dispositions
resulting from any casualty or other insured damage to, or any taking under
power of eminent domain or by condemnation or similar proceeding of, any
property or asset of the Borrower or any Subsidiary; 

     

    
      
         


      

      
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    (g)          sales,
transfers and other dispositions of assets (other than Equity Interests in a
Subsidiary unless all Equity Interests in such Subsidiary are sold) that are not
permitted by any other paragraph of this Section, provided that the
aggregate fair market value of all assets sold, transferred or otherwise
disposed of in reliance upon this paragraph (g) shall not exceed $5,000,000
during any fiscal year of the Borrower;

     

    (h)          a
true lease or sublease of Real Property that (i) does not constitute
Indebtedness and (ii) does not constitute a Sale and Leaseback
Transaction;

     

    (i)           the
sale or disposition of personal property (other than Accounts, Eligible Trucks
and Inventory) of the Borrower and its Subsidiaries to the Excluded Joint
Venture consummated in connection with managing the Excluded Joint Venture in
the ordinary course of business and consistent with past practices, in an
aggregate amount not to exceed $1,500,000; and

     

    (j)           the
lease (as lessee or lessor), sublease, non-exclusive license (as licensee or
licensor) or sublicense of real or personal property and the termination of such
lease or license, in each case, in the ordinary course of business and in
accordance with the applicable Collateral Documents;

     

    (k)          sales,
transfers, lease or dispositions in accordance with Section
6.03; 

     

    (l)           sales,
transfers or dispositions described on Schedule 6.05;
and

     

    (m)         expiration
or abandonment of intellectual property in the ordinary course of
business.

     

    provided that all
sales, transfers, leases and other dispositions permitted hereby (other than
those permitted by paragraphs (a)(v), (b), (f), (h), (j), (j), (k) and (m) above) shall be
made for fair value and for at least 75% cash consideration of such fair
value.

     

    Section
6.06         Sale and Leaseback
Transactions.  No Loan Party will, nor will it permit any
Subsidiary to, enter into any arrangement, directly or indirectly, whereby it
shall sell or transfer any property, real or personal, used or useful in its
business, whether now owned or hereafter acquired, and thereafter rent or lease
such property or other property that it intends to use for substantially the
same purpose or purposes as the property sold or transferred, except for (a) any
such sale of any fixed or capital assets by the Borrower or any Subsidiary that
is made for cash consideration in an amount not less than the fair value of such
fixed or capital asset and is consummated within 90 days after the Borrower or
such Subsidiary acquires or completes the construction of such fixed or capital
asset, or (b) any such sale to a Loan Party.

     

    Section
6.07         Swap
Agreements.  No Loan Party will, nor will it permit
any  Subsidiary to, enter into any Swap Agreement, except (a) Swap
Agreements entered into to hedge or mitigate risks to which the Borrower or any
Subsidiary has actual exposure (other than those in respect of Equity Interests
of the Borrower or any of its Subsidiaries), and (b) Swap Agreements entered
into in order to effectively cap, collar or exchange interest rates (from fixed
to floating rates, from one floating rate to another floating rate or otherwise)
with respect to any interest-bearing liability or investment of the Borrower or
any Subsidiary.

     

    
      
         


      

      
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    Section
6.08         Restricted Payments; Certain
Payments of Indebtedness.  (a) No Loan Party will, nor will it
permit any Subsidiary to, declare or make, or agree to pay or make, directly or
indirectly, any Restricted Payment, or incur any obligation (contingent or
otherwise) to do so, except as follows:

     

    (i)           the
Borrower may declare and pay Restricted Payments with respect to its common
stock payable solely in additional shares of its common stock, and, with respect
to its preferred stock, payable solely in additional shares of such preferred
stock, in shares of its common stock or an increase in liquidation
value;

     

    (ii)          Subsidiaries
may declare and make Restricted Payments ratably with respect to their Equity
Interests;

     

    (iii)         Restricted
Payments in respect of fractional shares;

     

    (iv)         the
Borrower may make Restricted Payments, not exceeding $3,500,000 during any
fiscal year,  pursuant to and in accordance with stock option plans or
other benefit plans for management or employees of the Borrower and its
Subsidiaries; and

     

    (v)          the
Borrower or a Subsidiary may make payments in cash or issue notes to former
employees, officers or directors of such Person in connection with the
redemption or repurchase of Equity Interests in the Borrower or a Subsidiary
from such former employees, officers or directors upon termination of employment
with a Loan Party or their death or disability in an aggregate amount not to
exceed $1,500,000 and provided that any such notes are subordinated to the
Obligations in form and substance reasonably acceptable to the Administrative
Agent.

     

    (b)          No
Loan Party will, nor will it permit any Subsidiary to, make or agree to pay or
make, directly or indirectly, any voluntary payment or other distribution
(whether in cash, securities or other property) of or in respect of principal of
or interest on any Indebtedness, or any payment or other distribution (whether
in cash, securities or other property), including any sinking fund or similar
deposit, on account of the purchase, redemption, retirement, acquisition,
cancellation or termination of any Indebtedness, except:

     

    (i)           payment
of Indebtedness created under the Loan Documents;

     

    (ii)          payment
of regularly scheduled interest and principal payments as and when due in
respect of any Indebtedness, other than payments in respect of the Subordinated
Indebtedness prohibited by the subordination provisions thereof;

     

    (iii)         refinancings
of Indebtedness to the extent permitted by Section
6.01;

     

    (iv)         payments
of intercompany Indebtedness between Loan Parties;

     

    (v)          so
long as no Default or Event of Default has occurred and is continuing, payment
of Indebtedness with either (x) the Net Proceeds from the issuance of common
stock or other Equity Interests of the Borrower or (y) the issuance of common
stock or other Equity Interests of the Borrower;

     

    
      
         


      

      
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    (vi)         payment
of secured Indebtedness that becomes due as a result of the voluntary sale or
transfer of the property or assets securing such Indebtedness; and

     

    (vii)        so
long as no Default or Event of Default has occurred and is continuing, the
voluntary prepayment, redemption or repurchase of (A) up to $2,500,000 of the
Senior Notes during the term of this Agreement if the Borrower is in pro forma
compliance with the Fixed Charge Coverage Ratio and has Availability of not less
than $10,000,000 if there is an Availability Block in effect or has Availability
of not less than $20,000,000 if there is no Availability Block in effect, in
each case after giving effect thereto, and (B) up to $2,500,000 of other
Indebtedness during the term of this Agreement if the Borrower is in pro forma
compliance with the Fixed Charge Coverage Ratio and has Availability of not less
than $10,000,000 if there is an Availability Block in effect or has Availability
of not less than $20,000,000 if there is no Availability Block in effect, in
each case after giving effect thereto.

     

    Section
6.09         Transactions with
Affiliates.  No Loan Party will, nor will it permit any
Subsidiary to, sell, lease or otherwise transfer any property or assets to, or
purchase, lease or otherwise acquire any property or assets from, or otherwise
engage in any other transactions with, any of its Affiliates, except (a)
transactions that (i) are in the ordinary course of business and (ii) are at
prices and on terms and conditions not less favorable to the Borrower or such
Subsidiary than could be obtained on an arm’s-length basis from unrelated third
parties, (b) transactions between or among (i) the Borrower and any Subsidiary
that is a Loan Party or (ii) Subsidiaries that are not Loan Parties,
(c) any Investment, Indebtedness or Restricted Payment permitted by the
Agreement, (d) loans and advances to employees permitted under Section 6.04, (e) the
payment of reasonable fees to directors of the Borrower or any Subsidiary who
are not employees of the Borrower or any Subsidiary, and compensation and
employee benefit arrangements paid to, and indemnities provided for the benefit
of, directors, officers or employees of the Borrower or its Subsidiaries in the
ordinary course of business, (f) any issuances of securities or other payments,
awards or grants in cash, securities or otherwise pursuant to, or the funding
of, employment agreements, stock options and stock ownership plans or other
compensation plans approved by the Borrower’s board of directors and (g)
transactions described on Schedule
6.09.

     

    Section
6.10         Restrictive
Agreements.  No Loan Party will, nor will it permit any
Subsidiary to, directly or indirectly, enter into, incur or permit to exist any
consensual agreement or other arrangement that prohibits, restricts or imposes
any condition upon (a) the ability of such Loan Party or any of its Subsidiaries
to create, incur or permit to exist any Lien upon any of its property or assets,
or (b) the ability of any Subsidiary to pay dividends or other distributions
with respect to any shares of its capital stock or to make or repay loans or
advances to the Borrower or any other Subsidiary or to Guarantee Indebtedness of
the Borrower or any other Subsidiary; provided that (i) the
foregoing shall not apply to restrictions and conditions imposed by law or by
any Loan Document or the Senior Notes Documents, (ii) the foregoing shall not
apply to restrictions and conditions existing on the date hereof identified on
Schedule 6.10 (but shall apply
to any extension or renewal of, or any amendment or modification materially
expanding the scope of, any such restriction or condition), (iii) the foregoing
shall not apply to customary restrictions and conditions contained in agreements
relating to the sale of a Subsidiary pending such sale, provided such
restrictions and conditions apply only to the Subsidiary that is to be sold and
such sale is permitted hereunder, (iv) clause (a) of the foregoing shall not
apply to restrictions or conditions imposed by any agreement relating to secured
Indebtedness permitted by this Agreement if such restrictions or conditions
apply only to the property or assets securing such Indebtedness, (v) clause (a)
of the foregoing shall not apply to customary provisions in leases and other
contracts restricting the assignment, subletting, licensing or encumbering
thereof, (vi) restrictions which are not more restrictive than those contained
in this Agreement contained in any documents governing any Indebtedness incurred
after the Effective Date in accordance with the provisions of this Agreement,
(vii) any agreement in effect at the time such Subsidiary becomes a Subsidiary
of the Borrower, so long as such agreement was not entered into in contemplation
of such Person becoming a Subsidiary of the Borrower, (viii) customary
provisions in joint venture agreements and other similar agreements applicable
to joint ventures permitted hereunder and applicable solely to such joint
venture entered into in the ordinary course of business and (ix) any agreement
evidencing any permitted modification, replacement, renewal, extension or
refinancing of such agreements identified in clauses (i) - (viii) so long as
such modification, replacement, renewal, extension or refinancing is not (taken
as a whole) materially less favorable to the Lenders.

     

    
      
         


      

      
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    Section
6.11         Amendment of Material
Documents.  No Loan Party will, nor will it permit any
Subsidiary to, amend, modify or waive any of its rights under (a) agreement
relating to any Subordinated Indebtedness, (b) its certificate of incorporation,
by-laws, operating, management or partnership agreement or other organizational
documents or (c) the
Senior Notes, to the extent any such amendment, modification or waiver would
be adverse to the Lenders; provided, that any refinancing permitted by
Section 6.01
shall not be deemed to be adverse for purposes of this Section
6.11.

     

    Section
6.12         Capital
Expenditures.  (a) The Borrower will not, nor will it
permit any Subsidiary to, incur or make any Capital Expenditures in an amount
exceeding (i) $15,000,000 in the aggregate from the Effective Date through and
including December 31, 2010 and (ii) 7.0% of consolidated annual revenue of
Borrower and its Subsidiaries for the trailing twelve month period ending on the
last day of each fiscal quarter thereafter (commencing with the fiscal quarter
ended March 31, 2011); provided that the amount of any Capital Expenditures
permitted to be made in respect of the trailing twelve month period ending on
March 31, 2011 shall be increased by a maximum of $7,500,000 of the unused
amount of Capital Expenditures that were permitted to be made during the fiscal
year ended December 31, 2010.

     

    Section
6.13         Fixed Charge Coverage
Ratio.  Beginning with the fiscal month in which the
Availability Block is eliminated and with respect to any fiscal month thereafter
in which Availability was at any time less than $15,000,000 (any such month, the
“FCCR Commencement Date”),
the Borrower shall maintain a Fixed Charge Coverage Ratio for the trailing
twelve month period of at least 1.0:1.0, determined (i) as of the last day of
the fiscal month preceding the FCCR Commencement Date and (ii) as of the last
day of each fiscal month occurring thereafter for the trailing twelve month
period ending on each such date, until Availability is equal to or greater than
$15,000,000 for a period of thirty (30) consecutive days.

     

    
      
         


      

      
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    Section
6.14         End of Fiscal Year and
Fiscal Quarters.  Unless otherwise agreed by the Administrative
Agent, the Loan Parties shall cause each of their fiscal years and the fiscal
years of each of their Subsidiaries to end on December 31st of the
applicable year and shall cause each of their fiscal quarters and the fiscal
quarters of their Subsidiaries to end on March 31st, June 30th, September 30th
and December 31st of the applicable year.

     

    ARTICLE
VII

     

    Events of
Default

     

    If any of
the following events (“Events of
Default”) shall occur:

     

    (a)           the
Borrower shall fail to pay any principal or interest of any Loan or any
reimbursement obligation in respect of any LC Disbursement when and as the same
shall become due and payable, whether at the due date thereof or at a date fixed
for prepayment thereof or otherwise;

     

    (b)          the
Borrower shall fail to pay any fee or any other amount (other than an amount
referred to in clause (a) of this Article) payable under this Agreement, when
and as the same shall become due and payable, and such failure shall continue
unremedied for a period of three Business Days;

     

    (c)          any
representation or warranty made or deemed made by or on behalf of any Loan Party
or any Subsidiary in or in connection with this Agreement or any Loan Document
or any amendment or modification thereof or waiver thereunder, or in any report,
certificate, financial statement or other document furnished pursuant to or in
connection with this Agreement or any Loan Document or any amendment or
modification thereof or waiver thereunder, shall prove to have been materially
incorrect when made or deemed made, except that such materiality qualifier shall
not be applicable to representations and warranties that are already qualified
or modified by materiality in the text thereof;

     

    (d)          any
Loan Party shall fail to observe or perform any covenant, condition or agreement
contained in Section
4.04, Section
5.02(a), Section 5.03 (with
respect to a Loan Party’s existence) or Section 5.08 or in
Article
VI;

     

    (e)          any
Loan Party shall fail to observe or perform any covenant, condition or agreement
contained in this Agreement or any other Loan Document (other than those which
constitute a default under another Section of this Article), and such failure
shall continue unremedied for a period of (i) 5 days after the earlier of
knowledge of a Loan Party of such breach or notice thereof from the
Administrative Agent (which notice will be given at the request of any Lender)
if such breach relates to terms or provisions of Section 5.01, Section 5.02 (other
than Section
5.02(a)), Section 5.03 through
Section 5.07,
Section
5.08, Section
5.09, Section 5.10, Section 5.12 or
Section
5.13(a) of this Agreement or (ii) 15 Business Days after
the earlier of knowledge of a Loan Party of such breach or notice thereof from
the Administrative Agent (which notice will be given at the request of any
Lender) if such breach relates to terms or provisions of any other Section of
this Agreement or any other Loan Document;

     

    
      
         


      

      
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    (f)           any
Loan Party or any Subsidiary shall fail to make any payment (whether of
principal or interest and regardless of amount) in respect of any Material
Indebtedness, when and as the same shall become due and payable;

     

    (g)           any
event or condition occurs that results in any Material Indebtedness becoming due
prior to its scheduled maturity or that enables or permits (with or without the
giving of notice, the lapse of time or both) the holder or holders of any
Material Indebtedness or any trustee or agent on its or their behalf to cause
any Material Indebtedness to become due, or to require the prepayment,
repurchase, redemption or defeasance thereof, prior to its scheduled maturity
(after giving effect to any grace period, amendment or waiver); provided that this
clause (g) shall not apply to secured Indebtedness that becomes due as a result
of the voluntary sale or transfer of the property or assets securing such
Indebtedness or any Indebtedness which converts to Equity Interests as a result
of any event or condition;

     

    (h)           an
involuntary proceeding shall be commenced or an involuntary petition shall be
filed seeking (i) liquidation, reorganization or other relief in respect of a
Loan Party or any Subsidiary of any Loan Party or its debts, or of a substantial
part of its assets, under any Federal, state or foreign bankruptcy, insolvency,
receivership or similar law now or hereafter in effect or (ii) the appointment
of a receiver, trustee, custodian, sequestrator, conservator or similar official
for any Loan Party or any Subsidiary of any Loan Party or for a substantial part
of its assets, and, in any such case, such proceeding or petition shall continue
undismissed for 60 consecutive days or an order or decree approving or ordering
any of the foregoing shall be entered;

     

    (i)           any
Loan Party or any Subsidiary of any Loan Party shall (i) voluntarily commence
any proceeding or file any petition seeking liquidation, reorganization or other
relief under any Federal, state or foreign bankruptcy, insolvency, receivership
or similar law now or hereafter in effect, (ii) consent to the institution of,
or fail to contest in a timely and appropriate manner, any proceeding or
petition described in clause (h) of this Article, (iii) apply for or consent to
the appointment of a receiver, trustee, custodian, sequestrator, conservator or
similar official for such Loan Party or Subsidiary of any Loan Party or for a
substantial part of its assets, (iv) file an answer admitting the material
allegations of a petition filed against it in any such proceeding, (v) make a
general assignment for the benefit of creditors or (vi) take any action for the
purpose of effecting any of the foregoing;

     

    (j)           any
Loan Party or any Subsidiary of any Loan Party shall become unable, admit in
writing its inability or fail generally to pay its debts as they become
due;

     

    (k)          one
or more final judgments for the payment of money in an aggregate amount in
excess of $2,500,000 (in excess of insurance provided by reputable providers for
which coverage has not been disclaimed) shall be rendered against any Loan
Party, any Subsidiary of any Loan Party or any combination thereof and the same
shall remain undischarged for a period of 30 consecutive days during which
execution shall not be effectively stayed, or any action shall be legally taken
by a judgment creditor to attach or levy upon any assets of any Loan Party or
any Subsidiary of any Loan Party to enforce any such judgment or any Loan Party
or any Subsidiary of any Loan Party shall fail within 30 days to discharge one
or more non-monetary judgments or orders which, individually or in the
aggregate, could reasonably be expected to have a Material Adverse Effect, which
judgments or orders, in any such case, are not stayed on appeal or otherwise
being appropriately contested in good faith by proper proceedings diligently
pursued;


    
      
         


      

      
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    (l)           
an ERISA Event shall have occurred that, when taken together with all other
ERISA Events that have occurred, results in liability of the Borrower and its
Subsidiaries exceeding $5,000,000;

     

    (m)          a
Change in Control shall occur;

     

    (n)           the
occurrence of any “Event of Default” under and as defined in the Senior Notes
Agreement;

     

    (o)           the
Loan Guaranty shall fail to remain in full force or effect or any action shall
be taken by a Loan Party to discontinue or to assert the invalidity or
unenforceability of the Loan Guaranty, or any Loan Guarantor shall fail to
comply with any of the terms or provisions of the Loan Guaranty to which it is a
party, or any Loan Guarantor shall deny that it has any further liability under
the Loan Guaranty to which it is a party, or shall give notice to such
effect;

     

    (p)           any
Collateral Document shall for any reason fail to create a valid and perfected
first priority Lien in any Collateral purported to be covered thereby (other
than (i) in respect of Collateral with a value not to exceed $250,000 or (ii) as
a result of the action or inaction of the Administrative Agent), except as
permitted by the terms of any Collateral Document, or any Collateral Document
shall fail to remain in full force or effect or any action shall be taken by a
Loan Party to discontinue or to assert the invalidity or unenforceability of any
Collateral Document;
or

     

    (q)           any
material provision of any Loan Document for any reason ceases to be valid,
binding and enforceable in accordance with its terms (other than as a result of
the action or inaction of the Administrative Agent or Lenders) (or any Loan
Party shall challenge the enforceability of any Loan Document or shall assert in
writing, or engage in any action or inaction based on any such assertion, that
any provision of any of the Loan Documents has ceased to be or otherwise is not
valid, binding and enforceable in accordance with its terms);

     

    then, and
in every such event (other than an event with respect to the Borrower described
in clause (h) or (i) of this Article), and at any time thereafter during the
continuance of such event, the Administrative Agent may, and at the request of
the Required Lenders shall, by notice to the Borrower, take either or both of
the following actions, at the same or different times:  (i) terminate
the Commitments, and thereupon the Commitments shall terminate immediately, and
(ii) declare the Loans then outstanding to be due and payable in whole (or in
part, in which case any principal not so declared to be due and payable may
thereafter be declared to be due and payable), and thereupon the principal of
the Loans so declared to be due and payable, together with accrued interest
thereon and all fees and other obligations of the Borrower accrued hereunder,
shall become due and payable immediately, without presentment, demand, protest
or other notice of any kind, all of which are hereby waived by the Borrower; and
in case of any event with respect to the Borrower described in clause (h) or (i)
of this Article, the Commitments shall automatically terminate and the principal
of the Loans then outstanding, together with accrued interest thereon and all
fees and other obligations of the Borrower accrued hereunder, shall
automatically become due and payable, without presentment, demand, protest or
other notice of any kind, all of which are hereby waived by the Borrower to the
extent permitted by applicable law.  Upon the occurrence and the
continuance of an Event of Default, the Administrative Agent may, and at the
request of the Required Lenders shall, exercise any rights and remedies provided
to the Administrative Agent under the Loan Documents or at law or equity,
including all remedies provided under the UCC.


    
      
         


      

      
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    ARTICLE
VIII

     

    The Administrative
Agent

     

    Each of
the Lenders and the Issuing Bank hereby irrevocably appoints the Administrative
Agent as its agent and authorizes the Administrative Agent to take such actions
on its behalf, including execution of the other Loan Documents, and to exercise
such powers as are delegated to the Administrative Agent by the terms of the
Loan Documents, together with such actions and powers as are reasonably
incidental thereto.

     

    The bank
serving as the Administrative Agent hereunder shall have the same rights and
powers in its capacity as a Lender as any other Lender and may exercise the same
as though it were not the Administrative Agent, and such bank and its Affiliates
may accept deposits from, lend money to and generally engage in any kind of
business with the Loan Parties or any Subsidiary of a Loan Party or other
Affiliate thereof as if it were not the Administrative Agent
hereunder.

     

    The
Administrative Agent shall not have any duties or obligations except those
expressly set forth in the Loan Documents.  Without limiting the
generality of the foregoing, (a) the Administrative Agent shall not be subject
to any fiduciary or other implied duties, regardless of whether a Default has
occurred and is continuing, (b) the Administrative Agent shall not have any duty
to take any discretionary action or exercise any discretionary powers, except
discretionary rights and powers expressly contemplated by the Loan Documents
that the Administrative Agent is required to exercise in writing as directed by
the Required Lenders (or such other number or percentage of the Lenders as shall
be necessary under the circumstances as provided in Section 9.02), and
(c) except as expressly set forth in the Loan Documents, the Administrative
Agent shall not have any duty to disclose, and shall not be liable for the
failure to disclose, any information relating to any Loan Party or any of its
Subsidiaries that is communicated to or obtained by the bank serving as
Administrative Agent or any of its Affiliates in any capacity.  The
Administrative Agent shall not be liable for any action taken or not taken by it
with the consent or at the request of the Required Lenders (or such other number
or percentage of the Lenders as shall be necessary under the circumstances as
provided in Section
9.02) or in the absence of its own gross negligence or willful
misconduct.  The Administrative Agent shall be deemed not to have
knowledge of any Default unless and until written notice thereof is given to the
Administrative Agent by the Borrower or a Lender, and the Administrative Agent
shall not be responsible for or have any duty to ascertain or inquire into (d)
any statement, warranty or representation made in or in connection with any Loan
Document, (e) the contents of any certificate, report or other document
delivered hereunder or in connection with any Loan Document, (f) the performance
or observance of any of the covenants, agreements or other terms or conditions
set forth in any Loan Document, (g) the validity, enforceability, effectiveness
or genuineness of any Loan Document or any other agreement, instrument or
document, (h) the creation, perfection or priority of Liens on the Collateral or
the existence of the Collateral, or (i) the satisfaction of any condition set
forth in Article
IV or elsewhere in any Loan Document, other than to confirm receipt of
items expressly required to be delivered to the Administrative
Agent.


    
      
         


      

      
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    The
Administrative Agent shall be entitled to rely upon, and shall not incur any
liability for relying upon, any notice, request, certificate, consent,
statement, instrument, document or other writing believed by it in good faith to
be genuine and to have been signed or sent by the proper Person.  The
Administrative Agent also may rely upon any statement made to it orally or by
telephone and believed by it to be made by the proper Person, and shall not
incur any liability for relying thereon.  The Administrative Agent may
consult with legal counsel (who may be counsel for the Borrower), independent
accountants and other experts selected by it, and shall not be liable for any
action taken or not taken by it in accordance with the advice of any such
counsel, accountants or experts.

     

    The
Administrative Agent may perform any and all its duties and exercise its rights
and powers by or through any one or more sub-agents appointed by the
Administrative Agent.  The Administrative Agent and any such sub-agent
may perform any and all its duties and exercise its rights and powers through
their respective Related Parties.  The exculpatory provisions of the
preceding paragraphs shall apply to any such sub-agent and to the Related
Parties of the Administrative Agent and any such sub-agent, and shall apply to
their respective activities in connection with the syndication of the credit
facilities provided for herein as well as activities as Administrative
Agent.

     

    Subject
to the appointment and acceptance of a successor Administrative Agent as
provided in this paragraph, the Administrative Agent may resign at any time by
giving at least 10 days prior notice to the Lenders, the Issuing Bank and the
Borrower.  Upon any such resignation, the Required Lenders shall have
the right, absent an Event of Default, in consultation with the Borrower, to
appoint a successor.  If no successor shall have been so appointed by
the Required Lenders and shall have accepted such appointment within 30 days
after the retiring Administrative Agent gives notice of its resignation, then
the retiring Administrative Agent may, on behalf of and in consultation with the
Lenders and the Issuing Bank, appoint a successor Administrative Agent which
shall be a commercial bank or an Affiliate of any such commercial bank which is,
absent an Event of Default, reasonably acceptable to the
Borrower.  Upon the acceptance of its appointment as Administrative
Agent hereunder by a successor, such successor shall succeed to and become
vested with all the rights, powers, privileges and duties of the retiring
Administrative Agent, and the retiring Administrative Agent shall be discharged
from its duties and obligations hereunder.  The fees payable by the
Borrower to a successor Administrative Agent shall be the same as those payable
to its predecessor unless otherwise agreed between the Borrower and such
successor.  After the Administrative Agent’s resignation hereunder,
the provisions of this Article, Section 2.17(d) and
Section 9.03
shall continue in effect for the benefit of such retiring Administrative Agent,
its sub-agents and their respective Related Parties in respect of any actions
taken or omitted to be taken by any of them while it was acting as
Administrative Agent.


    
      
         


      

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

     

    Each
Lender hereby agrees that (i) it has requested a copy of each Report prepared by
or on behalf of the Administrative Agent; (ii) the Administrative Agent (A)
makes no representation or warranty, express or implied, as to the completeness
or accuracy of any Report or any of the information contained therein or any
inaccuracy or omission contained in or relating to a Report and (B) shall not be
liable for any information contained in any Report; (iii) the Reports are not
comprehensive audits or examinations, and that any Person performing any field
examination will inspect only specific information regarding the Loan Parties
and will rely significantly upon the Loan Parties’ books and records, as well as
on representations of the Loan Parties’ personnel and that the Administrative
Agent undertakes no obligation to update, correct or supplement the Reports;
(iv) it will keep all Reports confidential and strictly for its internal use,
not share the Report with any Loan Party or any other Person except as otherwise
permitted pursuant to this Agreement; and (v) without limiting the generality of
any other indemnification provision contained in this Agreement, it will pay and
protect, and indemnify, defend, and hold the Administrative Agent and any such
other Person preparing a Report harmless from and against, the claims, actions,
proceedings, damages, costs, expenses, and other amounts (including reasonable
attorney fees) incurred by as the direct or indirect result of any third parties
who might obtain all or part of any Report through the indemnifying
Lender.

     

    With
respect to the incurrence or issuance by the Loan Parties of any Indebtedness
that is permitted to be secured by Liens pursuant to Section 6.02(a), each
of the Lenders hereby authorizes and directs the Administrative Agent to enter
into the Collateral Documents and the Intercreditor Agreement on behalf of such
Lender and agrees that the Administrative Agent in its various capacities
thereunder may take such actions on its behalf as is contemplated by the terms
of the Collateral Documents and the Intercreditor Agreement.  Each
Lender hereunder (a) agrees that it will be bound by and will take no actions
contrary to the provisions of the Collateral Documents and the Intercreditor
Agreement, (b) authorizes and instructs the Administrative Agent to enter into
the Collateral Documents and the Intercreditor Agreement as agent and on behalf
of such Lender, (c) agrees that the Administrative Agent may take such actions
on behalf of such Lender as is contemplated by the terms of the Collateral
Documents and the Intercreditor Agreement, (d) consents to the subordination of
Liens provided for in the Intercreditor Agreement and (e) agrees this Agreement
and the other Loan Documents are subject to the terms, conditions and provisions
of the Intercreditor Agreement.

    


    The
Lenders (or Affiliates thereof) identified in this Agreement, or hereafter
appointed by the Administrative Agent, as a “Documentation Agent”, “Sole
Bookrunner” or other similar titles, shall not have any right, power,
obligation, liability, responsibility or duty under this Agreement other than
those applicable to all Lenders herein.


    
      
         


      

      
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    ARTICLE
IX

     

    Miscellaneous

     

    Section
9.01        Notices.  (a)
Except in the case of notices and other communications expressly permitted to be
given by telephone (and subject to paragraph (b) below), all notices, demands
and other communications provided for herein shall be in writing and shall be
delivered by hand or overnight courier service, mailed by certified or
registered mail or sent by facsimile or electronic transmission, as
follows:

     

    (i)           if
to any Loan Party, to the Borrower at:

     

    U.S.
Concrete, Inc.

    2925
Briarpark, Suite 1050

    Houston,
Texas  77042

    Attention:  General
Counsel

    Telecopy
no:  (713) 499-6201

    E-Mail
Address:  clindeman@us-concrete.com

    


    (ii)          if to the Administrative
Agent, the Issuing Bank or the Swingline Lender:

     

    JPMorgan
Chase Bank, N.A.

    2200 Ross
Avenue, 9th Floor

    Dallas,
Texas 75220

    Attention:
Mario Quintanilla

    Telephone
No. (214) 965-2371

    Facsimile:
(214) 965-4731

    


    (iii)         with a copy
to:

     

    JPMorgan
Chase Bank, N.A.

    10 South
Dearborn, 22nd Floor

    Chicago,
Illinois, 60603-2003

    Attention:
Elena Ruiz

    Telephone
No. (312) 732-7572

    Facsimile:
(312) 732-7603

    


    All such
notices and other communications (A) sent by hand or overnight courier service,
or mailed by certified or registered mail, shall be deemed to have been given
when received or (B) sent by facsimile shall be deemed to have been given when
sent, provided
that if not given during normal business hours for the recipient, shall be
deemed to have been given at the opening of business on the next Business Day
for the recipient.


    
      
         


      

      
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    (b)           Notices
and other communications to the Lenders hereunder may be delivered or furnished
by electronic communications (including e-mail and internet or intranet
websites) pursuant to procedures approved by the Administrative Agent; provided that the
foregoing shall not apply to notices pursuant to Article II or to
compliance and no Event of Default certificates delivered pursuant to Section 5.01(d)
unless otherwise agreed by the Administrative Agent and the applicable
Lender.  The Administrative Agent or the Borrower (on behalf of the
Loan Parties) may, in its discretion, agree to accept notices and other
communications to it hereunder by electronic communications pursuant to
procedures approved by it; provided that
approval of such procedures may be limited to particular notices or
communications. All such notices and other communications (i) sent to an e-mail
address shall be deemed received upon the sender’s receipt of an acknowledgement
from the intended recipient (such as by the “return receipt requested” function,
as available, return e-mail or other written acknowledgement), provided that if not
given during the normal business hours of the recipient, such notice or
communication shall be deemed to have been given at the opening of business on
the next Business Day for the recipient, and (ii) posted to an Internet or
intranet website shall be deemed received upon the deemed receipt by the
intended recipient at its e-mail address as described in the foregoing clause
(b)(i) of notification that such notice or communication is available and
identifying the website address therefor.

     

    (c)           Any
party hereto may change its address or facsimile number for notices and other
communications hereunder by notice to the other parties hereto.

     

    Section
9.02          Waivers;
Amendments.  (a) No failure or delay by the Administrative
Agent, the Issuing Bank or any Lender in exercising any right or power hereunder
or under any other Loan Document shall operate as a waiver thereof, nor shall
any single or partial exercise of any such right or power, or any abandonment or
discontinuance of steps to enforce such a right or power, preclude any other or
further exercise thereof or the exercise of any other right or power to the
extent permitted by applicable law.  The rights and remedies of the
Administrative Agent, the Issuing Bank and the Lenders hereunder and under any
other Loan Document are cumulative and are not exclusive of any rights or
remedies that they would otherwise have.  No waiver of any provision
of any Loan Document or consent to any departure by any Loan Party therefrom
shall in any event be effective unless the same shall be permitted by paragraph
(b) of this Section, and then such waiver or consent shall be effective only in
the specific instance and for the purpose for which given.  Without
limiting the generality of the foregoing, the making of a Loan or issuance of a
Letter of Credit shall not be construed as a waiver of any Default, regardless
of whether the Administrative Agent, any Lender or the Issuing Bank may have had
notice or knowledge of such Default at the time.


    
      
         


      

      
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    (b)           Neither
this Agreement nor any other Loan Document nor any provision hereof or thereof
may be waived, amended or modified except (i) in the case of this Agreement,
pursuant to an agreement or agreements in writing entered into by the Borrower
and the Required Lenders or, (ii) in the case of any other Loan Document (other
than the Intercreditor Agreement which shall be amended and modified in
accordance with the provisions set forth therein), pursuant to an agreement or
agreements in writing entered into by the Administrative Agent and the Loan
Party or Loan Parties that are parties thereto, with the consent of the Required
Lenders; provided that no such
agreement shall (A) increase the Commitment of any Lender without the written
consent of such Lender (provided that the Administrative Agent may make
Protective Advances as set forth in Section 2.04 or
Overadvances set forth in Section 2.05), (B)
reduce or forgive the principal amount of any Loan or LC Disbursement or reduce
the rate of interest thereon, or reduce or forgive any interest or fees payable
hereunder, without the written consent of each Lender directly affected thereby
(provided that the waiver of default interest or any Default or Event of Default
shall not constitute a reduction or forgiveness of any interest or fee), (C)
postpone any scheduled date of payment of the principal amount of any Loan or LC
Disbursement, or any scheduled date for the payment of any interest, fees or
other Obligations payable hereunder, or reduce the amount of, waive or excuse
any such payment, or postpone the scheduled date of expiration of any
Commitment, without the written consent of each Lender directly affected thereby
(other than mandatory prepayments), (D) change Section
2.18(b) or alter the manner in which payments are shared, without
the written consent of each Lender, (E) increase the advance rates set forth in
the definition of Borrowing Base or add new categories of eligible assets or
modify that portion of Section 2.01 which limits the amount that can be borrowed
in each case in a manner that would increase availability, without the written
consent of the Supermajority Revolving Lenders, (F) change any of the provisions
of this Section or the definition of “Required Lenders” or
reduce the number or percentage of Lenders (or Lenders of any Class) specified
in any provision of any Loan Document required to waive, amend or modify any
rights thereunder or make any determination or grant any consent thereunder,
without the written consent of each Lender, (G) change Section 2.20, without
the consent of each Lender (other than any Defaulting Lender), (H) release any
Loan Guarantor from its obligation under its Loan Guaranty (except as otherwise
permitted herein or in the other Loan Documents), without the written consent of
each Lender, or (I) subordinate the Secured Obligations owed to any Lender
or any Liens securing such Secured Obligations except as otherwise provided
herein, without the consent of each Lender, (J) change Section 9.04 to allow
a Loan Party or any Affiliate thereof to become a permitted assignee without the
consent of each Lender, or (K) except as provided in clauses (c) and (d) of this Section
or in any Collateral Document, release all or substantially all of the
Collateral, without the written consent of each Lender; provided further that
no such agreement shall amend, modify or otherwise adversely affect the rights
or duties of the Administrative Agent, the Issuing Bank or the Swingline Lender
hereunder without the prior written consent of the Administrative Agent, the
Swingline Lender or the Issuing Bank, as the case may be (it being understood
that any change to Section 2.20 shall
require the consent of the Administrative Agent, the Swingline Lender and the
Issuing Bank).  The Administrative Agent may also amend the Commitment Schedule
to reflect assignments entered into pursuant to Section 9.04.

     

    (c)           The
Lenders hereby irrevocably authorize the Administrative Agent, at its option and
in its sole discretion, to release any Liens granted to the Administrative Agent
by the Loan Parties on any Collateral (i) upon the termination of the all
Commitments, payment and satisfaction in full in cash of all Secured Obligations
(other than Unliquidated  Obligations), and the cash collateralization
of all Unliquidated Obligations in a manner satisfactory to each affected
Lender, (ii) constituting property being sold or disposed of if the Loan Party
disposing of such property certifies to the Administrative Agent that the sale
or disposition is made in compliance with the terms of this Agreement (and the
Administrative Agent may rely conclusively on any such certificate, without
further inquiry), and to the extent that the property being sold or disposed of
constitutes 100% of the Equity Interest of a Subsidiary, the Administrative
Agent is authorized to release any Loan Guaranty provided by such Subsidiary,
(iii) constituting property leased to a Loan Party under a lease which has
expired or been terminated in a transaction permitted under this Agreement, or
(iv) as required to effect any sale or other disposition of such Collateral in
connection with any exercise of remedies of the Administrative Agent and the
Lenders pursuant to Article
VII.  Except as provided in the preceding sentence, the
Administrative Agent will not release any Liens on Borrowing Base Collateral
without the prior written authorization of the Required Lenders; provided that, the
Administrative Agent may in its discretion, release its Liens on Collateral
valued in the aggregate not in excess of $5,000,000 during any calendar year
without the prior written authorization of the Required Lenders to the extent
the Loan Parties are permitted to dispose of such Collateral pursuant to the
terms of the Loan Documents.  Any such release shall not in any manner
discharge, affect, or impair the Obligations or any Liens (other than those
expressly being released) upon (or obligations of the Loan Parties in respect
of) all interests retained by the Loan Parties, including the proceeds of any
sale, all of which shall continue to constitute part of the
Collateral.


    
      
         


      

      
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    (d)           If,
in connection with any proposed amendment, waiver or
consent  requiring the consent of “each Lender” or “each Lender
affected thereby,” the consent of the Required Lenders or the Supermajority
Revolving Lenders is obtained, but the consent of other necessary Lenders is not
obtained (any such Lender whose consent is necessary but not obtained being
referred to herein as a “Non-Consenting
Lender”), then the Borrower may elect to replace a Non-Consenting
Lender as a Lender party to this Agreement, provided that, concurrently with
such replacement, (1) another bank or other entity which is reasonably
satisfactory to the Borrower and the Administrative Agent shall agree (and the
Administrative Agent agrees any other Lender, an Affiliate of a Lender and
Approved Fund is acceptable), as of such date, to purchase for cash the Loans
and other Obligations due to the Non-Consenting Lender pursuant to an Assignment
and Assumption and to become a Lender for all purposes under this Agreement and
to assume all obligations of the Non-Consenting Lender to be terminated as of
such date and to comply with the requirements of clause (b) of Section 9.04, and (2)
the Borrower shall pay to such Non-Consenting Lender in same day funds on the
day of such replacement (a) all interest, fees and other amounts then accrued
but unpaid to such Non-Consenting Lender by the Borrower hereunder to and
including the date of termination, including without limitation payments due to
such Non-Consenting Lender under Section 2.15 and
Section 2.17,
and (b) an amount, if any, equal to the payment which would have been due to
such Lender on the day of such replacement under Section 2.16 had the
Loans of such Non-Consenting Lender been prepaid on such date rather than sold
to the replacement Lender.

     

    Section
9.03         Expenses; Indemnity; Damage
Waiver.  (a) The Borrower shall pay (i) all reasonable and
documented out-of-pocket expenses incurred by the Administrative Agent, the Lead
Arrangers and their Affiliates (including the reasonable fees, charges and
disbursements of one counsel for the Administrative Agent and the Lead
Arrangers, collectively, exclusive of any local counsel) in connection with the
syndication and distribution (including, without limitation, via the internet or
through a service such as Intralinks) of the credit facilities provided for
herein, the preparation and administration of the Loan Documents or any
amendments, modifications or waivers of the provisions of the Loan Documents
(whether or not the transactions contemplated hereby or thereby shall be
consummated), (ii) all reasonable and documented out-of-pocket expenses incurred
by the Issuing Bank in connection with the issuance, amendment, renewal or
extension of any Letter of Credit or any demand for payment thereunder and (iii)
all out-of-pocket expenses incurred by the Administrative Agent, the Lead
Arrangers, the Issuing Bank or any Lender, including the fees, charges and
disbursements of any counsel for the Administrative Agent, the Lead Arrangers,
the Issuing Bank or any Lender, in connection with the enforcement, collection
or protection of its rights in connection with the Loan Documents, including its
rights under this Section, or in connection with the Loans made or Letters of
Credit issued hereunder, including all such out-of-pocket expenses incurred
during  any workout, restructuring or negotiations in respect of such
Loans or Letters of Credit. Expenses being reimbursed by the Borrower under this
Section include, without limiting the generality of the foregoing, reasonable
out-of-pocket costs and expenses incurred in connection with:


    
      
         


      

      
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    (A)           Subject
to Section
5.11, Appraisals, insurance reviews and the Service
Agreement;

     

    (B)           Subject
to Section
5.14, field examinations and the preparation of Reports based on the fees
charged by a third party retained by the Administrative Agent or the internally
allocated fees for each Person employed by the Administrative Agent with respect
to each field examination;

     

    (C)           background
checks regarding senior management and/or key investors, as deemed necessary or
appropriate in the reasonable discretion of the Administrative
Agent;

     

    (D)           taxes,
fees and other charges for (1) lien and title searches and title
insurance, (2) recording the Mortgages, filing financing statements and
continuations, and (3) noting the Administrative Agent’s Liens on Trucks
and other actions to perfect, protect, and continue the Administrative Agent’s
Liens;

     

    (E)           sums
paid or incurred to take any action required of any Loan Party under the Loan
Documents that such Loan Party fails to pay or take; and

     

    (F)           forwarding
loan proceeds, collecting checks and other items of payment, and establishing
and maintaining the accounts and lock boxes, and costs and expenses of
preserving and protecting the Collateral.

     

    All of
the foregoing costs and expenses may be charged to the Borrower as Revolving
Loans or to the Collection Account, all as described in Section
2.18(c).

     

    (b)           The
Borrower shall indemnify the Administrative Agent, the Lead Arrangers, the
Issuing Bank and each Lender, and each Related Party of any of the foregoing
Persons (each such Person being called an “Indemnitee”)
against, and hold each Indemnitee harmless from, any and all losses, claims,
damages, penalties, incremental taxes, liabilities and related reasonable
out-of-pocket expenses, including the reasonable documented fees, charges and
disbursements of any counsel for any Indemnitee, incurred by or asserted against
any Indemnitee arising out of, in connection with, or as a result of (i) the
execution or delivery of the Loan Documents or any agreement or instrument
contemplated thereby, the performance by the parties hereto of their respective
obligations thereunder or the consummation of the Transactions or any other
transactions contemplated hereby, (ii) any Loan or Letter of Credit or the use
of the proceeds therefrom (including any refusal by the Issuing Bank to honor a
demand for payment under a Letter of Credit if the documents presented in
connection with such demand do not strictly comply with the terms of such Letter
of Credit), (iii) any actual or alleged presence or release of Hazardous
Materials on or from any property owned or operated by the Borrower or any of
its Subsidiaries, or any Environmental Liability related in any way to the
Borrower or any of its Subsidiaries, (iv) the failure of the Borrower to deliver
to the Administrative Agent the required receipts or other required documentary
evidence with respect to a payment made by the Borrower for Taxes pursuant
to Section 2.17, or (v) any
actual or prospective claim, litigation, investigation or proceeding relating to
any of the foregoing, whether based on contract, tort or any other theory and
regardless of whether any Indemnitee is a party thereto; provided that such
indemnity shall not, as to any Indemnitee, be available to the extent that such
losses, claims, damages, penalties, liabilities or related expenses (x) are
determined by a court of competent jurisdiction by final and nonappealable
judgment to have resulted from the gross negligence or willful misconduct of
such Indemnitee or such Indemnitee’s Related Parties or (y) arise from any
dispute solely among Indemnitees. WITHOUT LIMITATION OF THE FOREGOING BUT
SUBJECT TO ANY LIMITATION CONTAINED THEREIN, IT IS THE INTENTION OF THE BORROWER
AND THE BORROWER AGREES THAT THE FOREGOING INDEMNITIES SHALL APPLY TO EACH
INDEMNITEE WITH RESPECT TO LOSSES, CLAIMS, DAMAGES, PENALTIES, LIABILITIES AND
RELATED EXPENSES (INCLUDING, WITHOUT LIMITATION, ALL EXPENSES OF LITIGATION OR
PREPARATION THEREFOR), WHICH IN WHOLE OR IN PART ARE CAUSED BY OR ARISE OUT OF
THE NEGLIGENCE OF SUCH (AND/OR ANY OTHER) INDEMNITEE.


    
      
         


      

      
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    (c)           To
the extent that the Borrower fails to pay any amount required to be paid by it
to the Administrative Agent promptly following written demand, any Lead
Arranger, the Issuing Bank or the Swingline Lender under paragraph (a) or (b) of
this Section, each Lender severally agrees to pay to the Administrative Agent,
such Lead Arranger, the Issuing Bank or the Swingline Lender, as the case may
be, such Lender’s Applicable Percentage (determined as of the time that the
applicable unreimbursed expense or indemnity payment is sought) of such unpaid
amount; provided that the
unreimbursed expense or indemnified loss, claim, damage, penalty, liability or
related expense, as the case may be, was incurred by or asserted against the
Administrative Agent, such Lead Arranger, the Issuing Bank or the Swingline
Lender in its capacity as such.

     

    (d)           To
the extent permitted by applicable law, no Loan Party shall assert, and each
hereby waives, any claim against any Indemnitee, on any theory of liability, for
special, indirect, consequential or punitive damages (as opposed to direct or
actual damages) arising out of, in connection with, or as a result of, this
Agreement or any agreement or instrument contemplated hereby, the Transactions,
any Loan or Letter of Credit or the use of the proceeds thereof.

     

    (e)           All
amounts due under this Section shall be payable promptly after written demand
therefor.

     

    Section
9.04          Successors and
Assigns.  (a) The provisions of this Agreement and the
Intercreditor Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and assigns permitted hereby
(including any Affiliate of the Issuing Bank that issues any Letter of Credit),
except that (i) the Borrower may not assign or otherwise transfer any of its
rights or obligations hereunder without the prior written consent of each Lender
(and any attempted assignment or transfer by the Borrower without such consent
shall be null and void) and (ii) no Lender may assign or otherwise transfer its
rights or obligations hereunder except in accordance with this
Section.  Nothing in this Agreement, expressed or implied, shall be
construed to confer upon any Person (other than the parties hereto, their
respective successors and assigns permitted hereby (including any Affiliate of
the Issuing Bank that issues any Letter of Credit), Participants (to the extent
provided in paragraph (c) of this Section) and, to the extent expressly
contemplated hereby, the Related Parties of each of the Administrative Agent,
the Issuing Bank and the Lenders) any legal or equitable right, remedy or claim
under or by reason of this Agreement.


    
      
         


      

      
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    (b)           (i)
Subject to the conditions set forth in paragraph (b)(ii) below, any Lender may
assign to one or more assignees all or a portion of its rights and obligations
under this Agreement (including all or a portion of its Commitment and the Loans
at the time owing to it) with the prior written consent (such consent not to be
unreasonably withheld, conditioned or delayed) of:

     

    (A)           the
Borrower, provided that no
consent of the Borrower shall be required for an assignment to a Lender, an
Affiliate of a Lender, an Approved Fund or, if an Event of Default has occurred
and is continuing, any other assignee;

     

    (B)           the
Administrative Agent,
and

     

    (C)           the
Issuing Bank.

     

    (ii)          Assignments
shall be subject to the following additional conditions:

     

    (A)           except
in the case of an assignment to a Lender or an Affiliate of a Lender or an
assignment of the entire remaining amount of the assigning Lender’s Commitment
or Loans of any Class, the amount of the Commitment or Loans of the assigning
Lender subject to each such assignment (determined as of the date the Assignment
and Assumption with respect to such assignment is delivered to the
Administrative Agent) shall not be less than $5,000,000 unless each of the
Borrower and the Administrative Agent otherwise consent, provided that no such
consent of the Borrower shall be required if an Event of Default has occurred
and is continuing;

     

    (B)           each
partial assignment shall be made as an assignment of a proportionate part of all
the assigning Lender’s rights and obligations under this Agreement;

     

    (C)           the
parties to each assignment shall execute and deliver to the Administrative Agent
an Assignment and Assumption, together with a processing and recordation fee of
$3,500;

     

    (D)           no
Loan Party or any Affiliate thereof shall become an assignee; and

     

    (E)           the
assignee, if it shall not be a Lender, shall deliver to the Administrative Agent
an Administrative Questionnaire in which the assignee designates one or more
Credit Contacts to whom all syndicate-level information (which may contain
material non-public information about the Borrower, the Loan Parties and their
Related Parties or their respective securities) will be made available and who
may receive such information in accordance with the assignee’s compliance
procedures and applicable laws, including Federal and state securities
laws.


    
      
         


      

      
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    For the
purposes of this Section 9.04(b), the
term “Approved
Fund” has the following meaning:

     

    “Approved
Fund” means any Person (other than a natural person) that is engaged in
making, purchasing, holding or investing in bank loans and similar extensions of
credit in the ordinary course of its business and that is administered or
managed by (i) a Lender, (ii) an Affiliate of a Lender or (iii) an entity or an
Affiliate of an entity that administers or manages a Lender.

     

    (iii)           Subject
to acceptance and recording thereof pursuant to paragraph (b)(iv) of this
Section, from and after the effective date specified in each Assignment and
Assumption the assignee thereunder shall be a party hereto and, to the extent of
the interest assigned by such Assignment and Assumption, have the rights and
obligations of a Lender under this Agreement, and the assigning Lender
thereunder shall, to the extent of the interest assigned by such Assignment and
Assumption, be released from its obligations under this Agreement (and, in the
case of an Assignment and Assumption covering all of the assigning Lender’s
rights and obligations under this Agreement, such Lender shall cease to be a
party hereto but shall continue to be entitled to the benefits of Section 2.15, Section 2.16, Section 2.17 and
Section 9.03 to
the extent such benefits relate to the time period prior to the effective date
specified in such Assignment and Assumption).  Any assignment or
transfer by a Lender of rights or obligations under this Agreement that does not
comply with this Section 9.04 shall be
treated for purposes of this Agreement as a sale by such Lender of a
participation in such rights and obligations in accordance with paragraph (c) of
this Section.

     

    (iv)           The
Administrative Agent, acting for this purpose as an agent of the Borrower, shall
maintain at one of its offices a copy of each Assignment and Assumption
delivered to it and a register for the recordation of the names and addresses of
the Lenders, and the Commitment of, and principal amount of the Loans and LC
Disbursements owing to, each Lender pursuant to the terms hereof from time to
time (the “Register”).  The
entries in the Register shall be conclusive, and the Borrower, the
Administrative Agent, the Issuing Bank and the Lenders may treat each Person
whose name is recorded in the Register pursuant to the terms hereof as a Lender
hereunder for all purposes of this Agreement, notwithstanding notice to the
contrary.  The Register shall be available for inspection by the
Borrower, the Issuing Bank and any Lender, at any reasonable time and from time
to time upon reasonable prior notice.

     

    (v)           Upon
its receipt of a duly completed Assignment and Assumption executed by an
assigning Lender and an assignee, the assignee’s completed Administrative
Questionnaire (unless the assignee shall already be a Lender hereunder), the
processing and recordation fee referred to in paragraph (b) of this Section and
any written consent to such assignment required by paragraph (b) of this
Section, the Administrative Agent shall accept such Assignment and Assumption
and record the information contained therein in the Register; provided that if
either the assigning Lender or the assignee shall have failed to make any
payment required to be made by it pursuant to Section 2.05, Section 2.06(d) or
Section
2.06(e), Section 2.07(b),
Section
2.18(d), Section 2.18(e) or
Section
9.03(c), the Administrative Agent shall have no obligation to accept such
Assignment and Assumption and record the information therein in the Register
unless and until such payment shall have been made in full, together with all
accrued interest thereon.  No assignment shall be effective for
purposes of this Agreement unless it has been recorded in the Register as
provided in this paragraph.

     


    
      
         


      

      
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    (c)           (i)
Any Lender may, without the consent of the Borrower, the Administrative Agent,
the Issuing Bank or the Swingline Lender, sell participations to one or more
banks or other entities (a “Participant”)
in all or a portion of such Lender’s rights and obligations under this Agreement
(including all or a portion of its Commitment and the Loans owing to it); provided that (A)
such Lender’s obligations under this Agreement shall remain unchanged, (B) such
Lender shall remain solely responsible to the other parties hereto for the
performance of such obligations and (C) the Borrower, the Administrative Agent,
the Issuing Bank and the other Lenders shall continue to deal solely and
directly with such Lender in connection with such Lender’s rights and
obligations under this Agreement.  Any agreement or instrument
pursuant to which a Lender sells such a participation shall provide that such
Lender shall retain the sole right to enforce this Agreement and to approve any
amendment, modification or waiver of any provision of this Agreement; provided that such
agreement or instrument may provide that such Lender will not, without the
consent of the Participant, agree to any amendment, modification or waiver
described in the first proviso to Section 9.02(b) that
affects such Participant.  Subject to paragraph (c)(ii) of this
Section, the Borrower agrees that each Participant shall be entitled to the
benefits of Section
2.15, Section
2.16 and Section 2.17 to the
same extent as if it were a Lender and had acquired its interest by assignment
pursuant to paragraph (b) of this Section.  To the extent permitted by
law, each Participant also shall be entitled to the benefits of Section 9.08 as
though it were a Lender, provided such Participant agrees to be subject to Section 2.18(c) as
though it were a Lender.

     

    (ii)           A
Participant shall not be entitled to receive any greater payment under Section 2.15 or Section 2.17 than the
applicable Lender would have been entitled to receive with respect to the
participation sold to such Participant, unless the sale of the participation to
such Participant is made with the Borrower’s prior written consent.  A
Participant that would be a Foreign Lender if it were a Lender shall not be
entitled to the benefits of Section 2.17 unless
the Borrower is notified of the participation sold to such Participant and such
Participant agrees, for the benefit of the Borrower, to comply with Section 2.17(f) as
though it were a Lender and in all events shall not receive any amounts other
than the applicable Lender would have been entitled to receive.

     

    (d)           Any
Lender may at any time pledge or assign a security interest in all or any
portion of its rights under this Agreement to secure obligations of such Lender,
including without limitation any pledge or assignment to secure obligations to a
Federal Reserve Bank, and this Section shall not apply to any such pledge or
assignment of a security interest; provided that no such
pledge or assignment of a security interest shall release a Lender from any of
its obligations hereunder or substitute any such pledgee or assignee for such
Lender as a party hereto.

     


    
      
         


      

      
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    Section
9.05          Survival.  All
covenants, agreements, representations and warranties made by the Loan Parties
in the Loan Documents and in the certificates or other instruments delivered in
connection with or pursuant to this Agreement or any other Loan Document shall
be considered to have been relied upon by the other parties hereto and shall
survive the execution and delivery of the Loan Documents and the making of any
Loans and issuance of any Letters of Credit, regardless of any investigation
made by any such other party or on its behalf and notwithstanding that the
Administrative Agent, the Issuing Bank or any Lender may have had notice or
knowledge of any Default or incorrect representation or warranty at the time any
credit is extended hereunder, and shall continue in full force and effect as
long as the principal of or any accrued interest on any Loan or any fee or any
other amount payable under this Agreement is outstanding and unpaid or any
Letter of Credit is outstanding and so long as the Commitments have not expired
or terminated.  The provisions of Section 2.15, Section 2.16, Section 2.17 and
Section 9.03
and Article
VIII shall survive and remain in full force and effect regardless of the
repayment of the Loans, the expiration or termination of the Letters of Credit
and the Commitments or the termination of this Agreement or any provision
hereof.

     

    Section
9.06          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.  This Agreement, the other Loan Documents and any
separate letter agreements with respect to fees payable to the Administrative
Agent constitute the entire contract among the parties relating to the subject
matter hereof and supersede any and all previous agreements and understandings,
oral or written, relating to the subject matter hereof.  Except as
provided in Section
4.01, this Agreement shall become effective when it shall have been
executed and delivered by the Administrative Agent and when the Administrative
Agent shall have received counterparts hereof which, when taken together, bear
the signatures of each of the other parties hereto, and thereafter shall be
binding upon and inure to the benefit of the parties hereto and their respective
permitted successors and assigns.  Delivery of an executed counterpart
of a signature page of this Agreement by facsimile or other electronic
communication (including via email or PDF) shall be effective as delivery of a
manually executed counterpart of this Agreement. THIS WRITTEN AGREEMENT
REPRESENTS THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED
BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE
PARTIES.  THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE
PARTIES.

     

    Section
9.07          Severability.  Any
provision of any Loan Document 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 thereof; and the
invalidity of a particular provision in a particular jurisdiction shall not
invalidate such provision in any other jurisdiction.

     

    Section
9.08          Right of
Setoff.  If an Event of Default shall have occurred and be
continuing, each Lender and each of its Affiliates is hereby authorized at any
time and from time to time, to the fullest extent permitted by law, to set off
and apply any and all deposits (general or special, time or demand, provisional
or final) other than any escrow, employee benefit, tax, trust, payroll, petty
cash accounts or any Senior Notes Account, at any time held and other
obligations at any time owing by such Lender or Affiliate to or for the credit
or the account of the Borrower or such Loan Guarantor against any of and all the
Secured Obligations held by such Lender irrespective of whether or not such
Lender shall have made any demand under the Loan Documents and although such
obligations may be unmatured.  The applicable Lender shall notify the
Borrower and the Administrative Agent of such set-off or application, provided that any
failure to give or any delay in giving such notice to the Borrower shall not
affect the validity of any such set-off or application under this
Section.  The rights of each Lender under this Section are in addition
to other rights and remedies (including other rights of setoff) which such
Lender may have.

     

    
      
         


      

      
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    (a)           NOTWITHSTANDING
THE FOREGOING, AT ANY TIME THAT ANY OF THE SECURED OBLIGATIONS SHALL BE SECURED
BY REAL PROPERTY LOCATED IN CALIFORNIA, NO LENDER SHALL EXERCISE A RIGHT OF
SETOFF, LENDER’S LIEN OR COUNTERCLAIM OR TAKE ANY COURT OR ADMINISTRATIVE ACTION
OR INSTITUTE ANY PROCEEDING TO ENFORCE ANY PROVISION OF THIS AGREEMENT OR ANY
LOAN DOCUMENT UNLESS IT IS TAKEN WITH THE CONSENT OF THE LENDERS REQUIRED BY
SECTION 9.02 OF THIS AGREEMENT, IF SUCH SETOFF OR ACTION OR PROCEEDING WOULD OR
MIGHT (PURSUANT TO SECTIONS 580a, 580b, 580d AND 726 OF THE CALIFORNIA CODE OF
CIVIL PROCEDURE OR SECTION 2924 OF THE CALIFORNIA CIVIL CODE, IF APPLICABLE, OR
OTHERWISE) AFFECT OR IMPAIR THE VALIDITY, PRIORITY, OR ENFORCEABILITY OF THE
LIENS GRANTED TO AGENT PURSUANT TO THE COLLATERAL DOCUMENTS OR THE
ENFORCEABILITY OF THE SECURED OBLIGATIONS HEREUNDER, AND ANY ATTEMPTED EXERCISE
BY ANY LENDER OR ANY SUCH RIGHT WITHOUT OBTAINING SUCH CONSENT OF THE PARTIES AS
REQUIRED ABOVE, SHALL BE NULL AND VOID.  THIS PARAGRAPH SHALL BE
SOLELY FOR THE BENEFIT OF EACH OF THE LENDERS.

     

    Section
9.09          Governing Law; Jurisdiction;
Consent to Service of Process.  (a) The Loan Documents (other
than those containing a contrary express choice of law provision) shall be
governed by and construed in accordance with the laws of the State of New York,
but giving effect to federal laws applicable to national banks.

     

    (b)           Each
Loan Party hereby irrevocably and unconditionally submits, for itself and its
property, to the nonexclusive jurisdiction of any U.S. Federal or New York State
court sitting in New York, New York in any action or proceeding arising out of
or relating to any Loan Documents, or for recognition or enforcement of any
judgment, and each of the parties hereto hereby irrevocably and unconditionally
agrees that all claims in respect of any such action or proceeding may be heard
and determined in such New York State or, to the extent permitted by law, in
such Federal court.  Each of the parties hereto agrees that a final
judgment in any such action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other manner
provided by law.  Nothing in this Agreement or any other Loan Document
shall affect any right that the Administrative Agent, the Issuing Bank or any
Lender may otherwise have to bring any action or proceeding relating to this
Agreement or any other Loan Document against any Loan Party or its properties in
the courts of any jurisdiction.

     

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


    
      
         


      

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

     

    Section
9.10          WAIVER OF JURY
TRIAL.  EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY
LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS
AGREEMENT, ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED THEREBY
(WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY).  EACH PARTY
HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER
PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT,
IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B)
ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER
INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND
CERTIFICATIONS IN THIS SECTION.

     

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

     

    Section
9.12          Confidentiality.  Each
of the Administrative Agent, the Issuing Bank and the Lenders individually
agrees to maintain the confidentiality of the Information (as defined below),
except that Information may be disclosed (a) to its and its Affiliates’
directors, officers, employees and agents, including accountants, auditors,
consultants, legal counsel and other advisors that are expected to be involved
in the evaluation of such information in connection with the transactions
contemplated by this Agreement (it being understood that the Persons to whom
such disclosure is made will be informed of the confidential nature of such
Information and instructed to keep such Information confidential), (b) to the
extent requested by any regulatory authority, (c) to the extent required by
Requirement of Law or required by any subpoena or similar legal process, (d) to
any other party to this Agreement, (e) in connection with the exercise of any
remedies hereunder or any suit, action or proceeding relating to this Agreement
or any other Loan Document or the enforcement of rights hereunder or thereunder,
(f) subject to an agreement containing provisions substantially the same as
those of this Section, to (i) any assignee of or Participant in, or any
prospective assignee of or Participant in, any of its rights or obligations
under this Agreement or in connection with any pledge or assignment of a
security interest in all or any portion of its rights under this Agreement as
permitted under Section
9.04(d) or (ii) any actual or prospective counterparty (or its
advisors) to any swap or derivative transaction relating to the Loan Parties and
their obligations, (g) with the consent of the Borrower, or (h) to the extent such
Information (i) becomes publicly available other than as a result of a breach of
this Section or (ii) becomes available to the Administrative Agent, the Issuing
Bank or any Lender on a non-confidential basis from a source other than the
Borrower not in violation of confidentiality obligations owed to any Loan Party
hereunder.  For the purposes of this Section, “Information”
means all material, non-public information received from the Borrower relating
to the Borrower or its business, other than any such information that is
available to the Administrative Agent, the Issuing Bank or any Lender on a
non-confidential basis prior to disclosure by the Borrower.  Any
Person required to maintain the confidentiality of Information as provided in
this Section shall be considered to have complied with its obligation to do so
if such Person has exercised the same degree of care to maintain the
confidentiality of such Information as such Person would accord to its own
confidential information.


    
      
         


      

      
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    EACH
LENDER ACKNOWLEDGES THAT INFORMATION AS DEFINED IN SECTION 9.12 FURNISHED TO IT
PURSUANT TO THIS AGREEMENT MAY INCLUDE MATERIAL NON-PUBLIC INFORMATION
CONCERNING THE BORROWER AND ITS AFFILIATES AND  THEIR RELATED PARTIES
OR THEIR RESPECTIVE SECURITIES, AND CONFIRMS THAT IT HAS DEVELOPED COMPLIANCE
PROCEDURES REGARDING THE USE OF MATERIAL NON-PUBLIC INFORMATION AND THAT IT WILL
HANDLE SUCH MATERIAL NON-PUBLIC INFORMATION IN ACCORDANCE WITH THOSE PROCEDURES
AND APPLICABLE LAW, INCLUDING FEDERAL AND STATE SECURITIES LAWS.

     

    ALL
INFORMATION, INCLUDING REQUESTS FOR WAIVERS AND AMENDMENTS, FURNISHED BY THE
BORROWER OR THE ADMINISTRATIVE AGENT PURSUANT TO, OR IN THE COURSE OF
ADMINISTERING, THIS AGREEMENT WILL BE SYNDICATE-LEVEL INFORMATION, WHICH MAY
CONTAIN MATERIAL NON-PUBLIC INFORMATION ABOUT THE BORROWER, THE LOAN PARTIES AND
THEIR RELATED PARTIES OR THEIR RESPECTIVE SECURITIES.  ACCORDINGLY,
EACH LENDER REPRESENTS TO THE BORROWER AND THE ADMINISTRATIVE AGENT THAT IT HAS
IDENTIFIED IN ITS ADMINISTRATIVE QUESTIONNAIRE A CREDIT CONTACT WHO MAY RECEIVE
INFORMATION THAT MAY CONTAIN MATERIAL NON-PUBLIC INFORMATION IN ACCORDANCE WITH
ITS COMPLIANCE PROCEDURES AND APPLICABLE LAW, INCLUDING FEDERAL AND STATE
SECURITIES LAWS.

     

    Section
9.13          Several Obligations;
Nonreliance; Violation of Law.  The respective obligations of
the Lenders hereunder are several and not joint and the failure of any Lender to
make any Loan or perform any of its obligations hereunder shall not relieve any
other Lender from any of its obligations hereunder. Each Lender hereby
represents that it is not relying on or looking to any margin stock for the
repayment of the Borrowings provided for herein.  Anything contained
in this Agreement to the contrary notwithstanding, neither the Issuing Bank nor
any Lender shall be obligated to extend credit to the Borrower in violation of
any Requirement of Law.

     

    Section
9.14          USA PATRIOT
Act.  Each Lender that is subject to the requirements of the
USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001))
(the “Act”)
hereby notifies the Borrower that pursuant to the requirements of the Act, it is
required to obtain, verify and record information that identifies the Borrower,
which information includes the name and address of the Borrower and other
information that will allow such Lender to identify the Borrower in accordance
with the Act.


    
      
         


      

      
        107

        
          

        

      

      
         


      

    

     

    Section
9.15          Disclosure.  Each
Loan Party and each Lender hereby acknowledges and agrees that the
Administrative Agent and/or its Affiliates from time to time may hold
investments in, make other loans to or have other relationships with any of the
Loan Parties and their respective Affiliates.

     

    Section
9.16          Appointment for
Perfection.  Each Lender hereby appoints each other Lender as
its agent for the purpose of perfecting Liens, for the benefit of the
Administrative Agent and the Lenders, in assets which, in accordance with
Article 9 of the UCC or any other applicable law can be perfected only by
possession.  Should any Lender (other than the Administrative Agent)
obtain possession of any such Collateral, such Lender shall notify the
Administrative Agent thereof, and, promptly upon the Administrative Agent’s
request therefor shall deliver such Collateral to the Administrative Agent or
otherwise deal with such Collateral in accordance with the Administrative
Agent’s instructions.

     

    Section
9.17          Interest Rate
Limitation.  Notwithstanding anything herein to the contrary,
if at any time the interest rate applicable to any Loan, together with all fees,
charges and other amounts which are treated as interest on such Loan under
applicable law (collectively the “Charges”), shall
exceed the maximum lawful rate (the “Maximum Rate”) which
may be contracted for, charged, taken, received or reserved by the Lender
holding such Loan in accordance with applicable law, the rate of interest
payable in respect of such Loan hereunder, together with all Charges payable in
respect thereof, shall be limited to the Maximum Rate and, to the extent lawful,
the interest and Charges that would have been payable in respect of such Loan
but were not payable as a result of the operation of this Section shall be
cumulated and the interest and Charges payable to such Lender in respect of
other Loans or periods shall be increased (but not above the Maximum Rate
therefor) until such cumulated amount, together with interest thereon at the
Federal Funds Effective Rate to the date of repayment, shall have been received
by such Lender.

     

    Section
9.18          Intercreditor
Agreement.  Notwithstanding anything herein to the contrary,
any Liens and security interests granted to the Administrative Agent pursuant to
any Loan Document and the exercise of any right or remedy by Administrative
Agent under any Loan Document are subject to the provisions of the Intercreditor
Agreement. If there is a conflict between the terms of the Intercreditor
Agreement and this Agreement, the terms of the Intercreditor Agreement will
control.


    
      
         


      

      
        108

        
          

        

      

      
         


      

    

     

    ARTICLE
X

     

    Loan
Guaranty

     

    Section
10.01       Guaranty.  Each
Loan Guarantor (other than those that have delivered a separate Guaranty) hereby
agrees that it is jointly and severally liable for, and absolutely and
unconditionally guarantees to the Lenders the prompt payment when due, whether
at stated maturity, upon acceleration or otherwise, and at all times thereafter,
of the Secured Obligations and to the extent the Borrower would be required to
do so pursuant to Section 9.03(a)(iii),
all costs and expenses paid or incurred by the Administrative Agent, the Issuing
Bank and the Lenders in endeavoring to collect all or any part of the Secured
Obligations from, or in prosecuting any action against, the Borrower, any Loan
Guarantor or any other guarantor of all or any part of the Secured Obligations
(such costs and expenses, together with the Secured Obligations, collectively
the “Guaranteed
Obligations”).  Each Loan Guarantor further agrees that the
Guaranteed Obligations may be extended or renewed in whole or in part without
notice to or further assent from it, and that it remains bound upon its
guarantee notwithstanding any such extension or renewal. All terms of this Loan
Guaranty apply to and may be enforced by or on behalf of any domestic or foreign
branch or Affiliate of any Lender that extended any portion of the Guaranteed
Obligations.

     

    Section
10.02        Guaranty of
Payment.  This Loan Guaranty is a guaranty of payment and not
of collection. Each Loan Guarantor waives any right to require the
Administrative Agent, the Issuing Bank or any Lender to sue the Borrower, any
Loan Guarantor, any other guarantor, or any other person obligated for all or
any part of the Guaranteed Obligations (each, an “Obligated
Party”), or otherwise to enforce its payment against any collateral
securing all or any part of the Guaranteed Obligations.

     

    Section
10.03        No Discharge or Diminishment
of Loan Guaranty.  (a) Except as otherwise provided for herein,
the obligations of each Loan Guarantor hereunder are unconditional and absolute
and not subject to any reduction, limitation, impairment or termination for any
reason (other than the indefeasible payment in full in cash of the Guaranteed
Obligations), including:  (i) any claim of waiver, release, extension,
renewal, settlement, surrender, alteration, or compromise of any of the
Guaranteed Obligations, by operation of law or otherwise; (ii) any change in the
corporate existence, structure or ownership of the Borrower or any other
guarantor of or other person liable for any of the Guaranteed Obligations; (iii)
any insolvency, bankruptcy, reorganization or other similar proceeding affecting
any Obligated Party, or their assets or any resulting release or discharge of
any obligation of any Obligated Party; or (iv) the existence of any claim,
setoff or other rights which any Loan Guarantor may have at any time against any
Obligated Party, the Administrative Agent, the Issuing Bank, any Lender, or any
other person, whether in connection herewith or in any unrelated
transactions.

     

    (b)           The
obligations of each Loan Guarantor hereunder are not subject to any defense or
setoff, counterclaim, recoupment, or termination whatsoever by reason of the
invalidity, illegality, or unenforceability of any of the Guaranteed Obligations
or otherwise, or any provision of applicable law or regulation purporting to
prohibit payment by any Obligated Party, of the Guaranteed Obligations or any
part thereof.

     

    (c)           Further,
the obligations of any Loan Guarantor hereunder are not discharged or impaired
or otherwise affected by:  (i) the failure of the Administrative
Agent, the Issuing Bank or any Lender to assert any claim or demand or to
enforce any remedy with respect to all or any part of the Guaranteed
Obligations; (ii) any waiver or modification of or supplement to any provision
of any agreement relating to the Guaranteed Obligations; (iii) any release,
non-perfection, or invalidity of any indirect or direct security for the
obligations of the Borrower for all or any part of the Guaranteed Obligations or
any obligations of any other guarantor of or other person liable for any of the
Guaranteed Obligations; (iv) any action or failure to act by the Administrative
Agent, the Issuing Bank or any Lender with respect to any collateral securing
any part of the Guaranteed Obligations; or (v) any default, failure or delay,
willful or otherwise, in the payment or performance of any of the Guaranteed
Obligations, or any other circumstance, act, omission or delay that might in any
manner or to any extent vary the risk of such Loan Guarantor or that would
otherwise operate as a discharge of any Loan Guarantor as a matter of law or
equity (other than the indefeasible payment in full in cash of the Guaranteed
Obligations).


    
      
         


      

      
        109

        
          

        

      

      
         


      

    

     

    Section
10.04        Defenses
Waived.  To the fullest extent permitted by applicable law,
each Loan Guarantor hereby waives any defense based on or arising out of any
defense of the Borrower or any Loan Guarantor or the unenforceability of all or
any part of the Guaranteed Obligations from any cause, or the cessation from any
cause of the liability of the Borrower or any Loan Guarantor, other than the
indefeasible payment in full in cash of the Guaranteed Obligations. Without
limiting the generality of the foregoing, each Loan Guarantor irrevocably waives
acceptance hereof, presentment, demand, protest and, to the fullest extent
permitted by law, any notice not provided for herein, as well as any requirement
that at any time any action be taken by any person against any Obligated Party,
or any other person.  Each Loan Guarantor confirms that it is not a
surety under any state law and shall not raise any such law as a defense to its
obligations hereunder.  The Administrative Agent may, at its election,
foreclose on any Collateral held by it by one or more judicial or nonjudicial
sales, accept an assignment of any such Collateral in lieu of foreclosure or
otherwise act or fail to act with respect to any collateral securing all or a
part of the Guaranteed Obligations, compromise or adjust any part of the
Guaranteed Obligations, make any other accommodation with any Obligated Party or
exercise any other right or remedy available to it against any Obligated Party,
without affecting or impairing in any way the liability of such Loan Guarantor
under this Loan Guaranty except to the extent the Guaranteed Obligations have
been fully and indefeasibly paid in cash.  To the fullest extent
permitted by applicable law, each Loan Guarantor waives any defense arising out
of any such election even though that election may operate, pursuant to
applicable law, to impair or extinguish any right of reimbursement or
subrogation or other right or remedy of any Loan Guarantor against any Obligated
Party or any security.

     

    Section
10.05       Rights of
Subrogation.  No Loan Guarantor will assert any right, claim or
cause of action, including, without limitation, a claim of subrogation,
contribution or indemnification that it has against any Obligated Party, or any
collateral, until the Loan Parties and the Loan Guarantors have fully performed
all their obligations to the Administrative Agent, the Issuing Bank and the
Lenders.

     

    Section
10.06        Reinstatement; Stay of
Acceleration.  If at any time any payment of any portion of the
Guaranteed Obligations is rescinded or must otherwise be restored or returned
upon the insolvency, bankruptcy, or reorganization of the Borrower or otherwise,
each Loan Guarantor’s obligations under this Loan Guaranty with respect to that
payment shall be reinstated at such time as though the payment had not been made
and whether or not the Administrative Agent, the Issuing Bank and the Lenders
are in possession of this Loan Guaranty. If acceleration of the time for payment
of any of the Guaranteed Obligations is stayed upon the insolvency, bankruptcy
or reorganization of the Borrower, all such amounts otherwise subject to
acceleration under the terms of any agreement relating to the Guaranteed
Obligations shall nonetheless be payable by the Loan Guarantors forthwith on
demand by the Lender.


    
      
         


      

      
        110

        
          

        

      

      
         


      

    

     

    Section
10.07        Information.  Each
Loan Guarantor assumes all responsibility for being and keeping itself informed
of the Borrower’s financial condition and assets, and of all other circumstances
bearing upon the risk of nonpayment of the Guaranteed Obligations and the
nature, scope and extent of the risks that each Loan Guarantor assumes and
incurs under this Loan Guaranty, and agrees that neither the Administrative
Agent, the Issuing Bank nor any Lender shall have any duty to advise any Loan
Guarantor of information known to it regarding those circumstances or
risks.

     

    Section
10.08        Termination.  The
Lenders may continue to make loans or extend credit to the Borrower based on
this Loan Guaranty until five days after it receives written notice of
termination from any Loan Guarantor.  Notwithstanding receipt of any
such notice, each Loan Guarantor will continue to be liable to the Lenders for
any Guaranteed Obligations created, assumed or committed to prior to the fifth
day after receipt of the notice, and all subsequent renewals, extensions,
modifications and amendments with respect to, or substitutions for, all or any
part of that Guaranteed Obligations.

     

    Section
10.09        Taxes.  All
payments of the Guaranteed Obligations will be made by each Loan Guarantor free
and clear of and without deduction for any Indemnified Taxes or Other Taxes;
provided that
if any Loan Guarantor shall be required to deduct any Indemnified Taxes or Other
Taxes from such payments, then (a) the sum payable shall be increased as
necessary so that after making all required deductions (including deductions
applicable to additional sums payable under this Section) the Administrative
Agent, Lender or Issuing Bank (as the case may be) receives an amount equal to
the sum it would have received had no such deductions been made, (b) such Loan
Guarantor shall make such deductions and (c) such Loan Guarantor shall pay the
full amount deducted to the relevant Governmental Authority in accordance with
applicable law.

     

    Section
10.10        Maximum
Liability.  The provisions of this Loan Guaranty are severable,
and in any action or proceeding involving any state corporate law, or any state,
federal or foreign bankruptcy, insolvency, reorganization or other law affecting
the rights of creditors generally, if the obligations of any Loan Guarantor
under this Loan Guaranty would otherwise be held or determined to be avoidable,
invalid or unenforceable on account of the amount of such Loan Guarantor’s
liability under this Loan Guaranty, then, notwithstanding any other provision of
this Loan Guaranty to the contrary, the amount of such liability shall, without
any further action by the Loan Guarantors or the Lenders, be automatically
limited and reduced to the highest amount that is valid and enforceable as
determined in such action or proceeding (such highest amount determined
hereunder being the relevant Loan Guarantor’s “Maximum
Liability”).  This Section with respect to the Maximum
Liability of each Loan Guarantor is intended solely to preserve the rights of
the Lenders to the maximum extent not subject to avoidance under applicable law,
and no Loan Guarantor nor any other person or entity shall have any right or
claim under this Section with respect to such Maximum Liability, except to the
extent necessary so that the obligations of any Loan Guarantor hereunder shall
not be rendered voidable under applicable law. Each Loan Guarantor agrees that
the Guaranteed Obligations may at any time and from time to time exceed the
Maximum Liability of each Loan Guarantor without impairing this Loan Guaranty or
affecting the rights and remedies of the Lenders hereunder, provided that,
nothing in this sentence shall be construed to increase any Loan Guarantor’s
obligations hereunder beyond its Maximum Liability.


    
      
         


      

      
        111

        
          

        

      

      
         


      

    

     

    Section
10.11        Contribution.  In
the event any Loan Guarantor (a “Paying
Guarantor”) shall make any payment or payments under this Loan Guaranty
or shall suffer any loss as a result of any realization upon any collateral
granted by it to secure its obligations under this Loan Guaranty, each other
Loan Guarantor (each a “Non-Paying
Guarantor”) shall contribute to such Paying Guarantor an amount equal to
such Non-Paying Guarantor’s “Applicable Percentage” of such payment or payments
made, or losses suffered, by such Paying Guarantor.  For purposes of
this Article X,
each Non-Paying Guarantor’s “Applicable
Percentage” with respect to any such payment or loss by a Paying
Guarantor shall be determined as of the date on which such payment or loss was
made by reference to the ratio of (a) such Non-Paying Guarantor’s Maximum
Liability as of such date (without giving effect to any right to receive, or
obligation to make, any contribution hereunder) or, if such Non-Paying
Guarantor’s Maximum Liability has not been determined, the aggregate amount of
all monies received by such Non-Paying Guarantor from the Borrower after the
date hereof (whether by loan, capital infusion or by other means) to (b) the
aggregate Maximum Liability of all Loan Guarantors hereunder (including such
Paying Guarantor) as of such date (without giving effect to any right to
receive, or obligation to make, any contribution hereunder), or to the extent
that a Maximum Liability has not been determined for any Loan Guarantor, the
aggregate amount of all monies received by such Loan Guarantors from the
Borrower after the date hereof (whether by loan, capital infusion or by other
means).  Nothing in this provision shall affect any Loan Guarantor’s
several liability for the entire amount of the Guaranteed Obligations (up to
such Loan Guarantor’s Maximum Liability).  Each of the Loan Guarantors
covenants and agrees that its right to receive any contribution under this Loan
Guaranty from a Non-Paying Guarantor shall be subordinate and junior in right of
payment to the payment in full in cash of the Guaranteed
Obligations.  This provision is for the benefit of both the
Administrative Agent, the Issuing Bank, the Lenders and the Loan Guarantors and
may be enforced by any one, or more, or all of them in accordance with the terms
hereof.

     

    Section
10.12        Liability
Cumulative.  The liability of each Loan Party as a Loan
Guarantor under this Article X is in
addition to and shall be cumulative with all liabilities of each Loan Party to
the Administrative Agent, the Issuing Bank and the Lenders under this Agreement
and the other Loan Documents to which such Loan Party is a party or in respect
of any obligations or liabilities of the other Loan Parties, without any
limitation as to amount, unless the instrument or agreement evidencing or
creating such other liability specifically provides to the
contrary.


    
      
         


      

      
        112

        
          

        

      

      
         


      

    

     

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

     

    
      
        
          
            
              
                	
                        U.S. CONCRETE, INC., as
      Borrower

                      
	 
      	 
      
	
                        By:

                      	
                        /s/ Michael W. Harlan

                      
	
                        Name:

                      	
                        Michael
      W. Harlan

                      
	
                        Title:

                      	
                        Chief
      Executive Officer and President

                      
	 
      	 
      
	
                        OTHER
      LOAN PARTIES:

                      
	 
	
                        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

                      


              

            

          

        

      

    

     

    
      [Signature
Page to Credit 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
      INDUSTRIES, INC.

                  
	 
      	 
      
	
                    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

                  


          

        

      

    

     

    
      [Signature
Page to Credit Agreement]

    

     

    
      
         


      

      
         


        
          

        

      

      
         


      

    

     

    
      
        
          	
                  BEALL
      MANAGEMENT, INC.

                
	 
      
	
                  By:

                	
                  /s/ Michael W. Harlan

                
	
                  Name:   Michael
      W. Harlan

                
	
                  Title:     President

                
	 
      
	
                  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

                


        

      

    

        


    [Signature
Page to Credit Agreement]

     

    
      
         


      

      
         


        
          

        

      

      
         


      

    

    
    

    
      
        	
                CONCRETE
      ACQUISITION III, LLC

              
	 
      
	
                By:

              	
                /s/ Curt M. Lindeman

              
	
                Name:   Curt
      M. Lindeman

              
	
                Title:     President

              
	 
      
	
                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

              


      

    

         


    [Signature
Page to Credit Agreement]

     

    
      
         


      

      
         


        
          

        

      

      
         


      

    

    
    

    
      
        	
                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

              
	 
      
	
                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

              


      

    

         


    [Signature
Page to Credit Agreement]
 

    
      
         


      

      
         


        
          

        

      

      
         


      

    

    
    

    
      
        	
                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

              
	 
      
	
                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

              


      

    

        


    [Signature
Page to Credit Agreement]


    
      
         


      

      
         


        
          

        

      

      
         


      

    

    
    

    
      
        	
                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

              
	 
      
	
                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

              


      

    

         


    [Signature
Page to Credit Agreement]
  

    
      
         


      

      
         


        
          

        

      

      
         


      

    

    
    

    
      
        	
                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

              
	 
      
	
                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

              


      

    

        


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                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

              
	 
      
	
                USC
      MICHIGAN, INC.

              
	 
      
	
                By:

              	
                /s/ Michael W. Harlan

              
	
                Name:  
      Michael W. Harlan

              
	
                Title:    
      Vice President and Secretary

              


      

    

         

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                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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                        AGENTS
      AND LENDERS:

                      
	 
      
	
                        JPMORGAN CHASE BANK,
      N.A., as Administrative Agent, Issuing Bank, Swingline Lender and a
      Lender

                      
	 
      	 
      
	
                        By:

                      	/s/
      Mario Quintanilla
	
                        Name:

                      	Mario
      Quintanilla
	
                        Title:

                      	Vice
      President


              

            

          

        

      

    

           


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                        WELLS FARGO CAPITAL FINANCE,
      LLC, as Documentation Agent, Lead Arranger and a
    Lender

                      
	 
      	 
      
	
                        By:

                      	/s/
      Kathy Plisko
	
                        Name:

                      	Kathy
      Plisko
	
                        Title:

                      	Managing
      Director


              

            

          

        

      

    

        


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