Exhibit
10.1

    


    EXECUTION
VERSION

    


    $80,000,000

    


    REVOLVING
CREDIT, TERM LOAN AND GUARANTEE AGREEMENT

    


    Dated
as of May 3, 2010

    


    among

    


    U.S.
Concrete, Inc.,

    a
Debtor and Debtor-in-Possession, as Borrower

    


    and

    


    The
Other Guarantors Named Herein,

    each
either a Debtor and Debtor-in-Possession or a Specified Non-Filer

    


    The
Lenders and Issuers Party Hereto

    


    and

    


    JPMorgan
Chase Bank, N.A.,

    as
Administrative Agent

    *
* *

    


    J.P.
Morgan Securities Inc.,

    as
Sole Lead Arranger and Sole Bookrunner


    
      
         


      

      
         


        
          

        

      

      
         


      

    


    
      
        
          
            
              
                
                  
                    	ARTICLE
      I Definitions, Interpretation and Accounting Terms	
                            2

                          
	 	 
      	 
      
	 	
                            Section
      1.1

                          	
                            Defined
      Terms

                          	
                            2

                          
	 	 
      	 
      	 
      
	 	
                            Section
      1.2

                          	
                            Computation
      of Time Periods

                          	
                            32

                          
	 	 
      	 
      	 
      
	 	
                            Section
      1.3

                          	
                            Accounting
      Terms and Principles

                          	
                            32

                          
	 	 
      	 
      	 
      
	 	
                            Section
      1.4

                          	
                            Certain
      Terms

                          	
                            33

                          
	 	 
      	 
      	 
      
	ARTICLE
      II The Facilities	
                            34

                          
	 	 
      	 
      
	 	
                            Section
      2.1

                          	
                            The
      Commitments

                          	
                            34

                          
	 	 
      	 
      	 
      
	 	
                            Section
      2.2

                          	
                            Borrowing
      Procedures

                          	
                            34

                          
	 	 
      	 
      	 
      
	 	
                            Section
      2.3

                          	
                            Letters
      of Credit

                          	
                            35

                          
	 	 
      	 
      	 
      
	 	
                            Section
      2.4

                          	
                            Reduction
      and Termination of the Commitments

                          	
                            38

                          
	 	 
      	 
      	 
      
	 	
                            Section
      2.5

                          	
                            Repayment
      of Loans

                          	
                            39

                          
	 	 
      	 
      	 
      
	 	
                            Section
      2.6

                          	
                            Evidence
      of Debt

                          	
                            39

                          
	 	 
      	 
      	 
      
	 	
                            Section
      2.7

                          	
                            Optional
      Prepayments

                          	
                            39

                          
	 	 
      	 
      	 
      
	 	
                            Section
      2.8

                          	
                            Mandatory
      Prepayments

                          	
                            39

                          
	 	 
      	 
      	 
      
	 	
                            Section
      2.9

                          	
                            Interest

                          	
                            40

                          
	 	 
      	 
      	 
      
	 	
                            Section
      2.10

                          	
                            Conversion/Continuation
      Option

                          	
                            41

                          
	 	 
      	 
      	 
      
	 	
                            Section
      2.11

                          	
                            Fees

                          	
                            42

                          
	 	 
      	 
      	 
      
	 	
                            Section
      2.12

                          	
                            Payments
      and Computations

                          	
                            42

                          
	 	 
      	 
      	 
      
	 	
                            Section
      2.13

                          	
                            Alternate
      Rate of Interest.

                          	
                            45

                          
	 	 
      	 
      	 
      
	 	
                            Section
      2.14

                          	
                            Special
      Provisions Governing Eurodollar Rate Loans

                          	
                            45

                          
	 	 
      	 
      	 
      
	 	
                            Section
      2.15

                          	
                            Capital
      Adequacy

                          	
                            47

                          
	 	 
      	 
      	 
      
	 	
                            Section
      2.16

                          	
                            Taxes

                          	
                            48

                          
	 	 
      	 
      	 
      
	 	
                            Section
      2.17

                          	
                            Substitution
      of Lenders

                          	
                            50

                          
	 	 
      	 
      	 
      
	 	
                            Section
      2.18

                          	
                            Defaulting
      Lenders.

                          	
                            51

                          
	 	 
      	 
      	 
      
	 	
                            Section
      2.19

                          	
                            Priority
      and Liens.

                          	
                            52

                          
	 	 
      	 
      	 
      
	 	
                            Section
      2.20

                          	
                            Payment
      of Obligations.

                          	
                            52

                          
	 	 
      	 
      	 
      
	 	
                            Section
      2.21

                          	
                            No
      Discharge; Survival of Claims.

                          	
                            53

                          
	 	 
      	 
      	 
      
	 	
                            Section
      2.22

                          	
                            Conflicts.

                          	
                            53

                          
	 	 
      	 
      	 
      
	 	
                            Section
      2.23

                          	
                            Fifteen
      Month Facility Extension Option.

                          	
                            53

                          
	 	 
      	 
      	 
      
	ARTICLE
      III Conditions to Loans and Letters of Credit	
                            54

                          
	 	 
      	 
      
	 	
                            Section
      3.1

                          	
                            Conditions
      to the Initial Extension of Credit

                          	
                            54

                          
	 	 
      	 
      	 
      
	 	
                            Section
      3.2

                          	
                            Conditions
      to the Final Extension of Credit

                          	
                            58

                          
	 	 
      	 
      	 
      
	 	
                            Section
      3.3

                          	
                            Conditions
      Precedent to Each Loan and Letter of Credit

                          	
                            59

                          


                  

                

              

            

          

        

      

    

    


    
      
        
        

      

      
        i

        
          

        

      

      
        
        

      

    

     

    TABLE
OF CONTENTS

    (continued)

    


    
      
        
          
            
              
                
                  
                    
                      
                        
                          
                            
                              
                                
                                  
                                    
                                      	 	 
      	
                                              Page

                                            
	 	 
      	 
      
	 	      
                                              Section
      3.4

                                            	      
                                              Determinations
      of Borrowing Conditions

                                            	60
	 	 	 	 
	ARTICLE
      IV Representations and Warranties	60
	 	 	 	 
	 	
                                              Section
      4.1

                                            	
                                              Corporate
      Existence; Compliance with Law

                                            	
                                              61

                                            
	 	 
      	 
      	 
      
	 	
                                              Section
      4.2

                                            	
                                              Corporate
      Power; Authorization; Enforceable Obligations

                                            	
                                              61

                                            
	 	 
      	 
      	 
      
	 	
                                              Section
      4.3

                                            	
                                              Ownership
      of Borrower; Subsidiaries

                                            	
                                              62

                                            
	 	 
      	 
      	 
      
	 	
                                              Section
      4.4

                                            	
                                              Financial
      Statements

                                            	
                                              62

                                            
	 	 
      	 
      	 
      
	 	
                                              Section
      4.5

                                            	
                                              Material
      Adverse Change

                                            	
                                              63

                                            
	 	 
      	 
      	 
      
	 	
                                              Section
      4.6

                                            	
                                              Litigation

                                            	
                                              63

                                            
	 	 
      	 
      	 
      
	 	
                                              Section
      4.7

                                            	
                                              Taxes

                                            	
                                              63

                                            
	 	 
      	 
      	 
      
	 	
                                              Section
      4.8

                                            	
                                              Full
      Disclosure

                                            	
                                              64

                                            
	 	 
      	 
      	 
      
	 	
                                              Section
      4.9

                                            	
                                              Margin
      Regulations

                                            	
                                              64

                                            
	 	 
      	 
      	 
      
	 	
                                              Section
      4.10

                                            	
                                              No
      Burdensome Restrictions; No Defaults

                                            	
                                              64

                                            
	 	 
      	 
      	 
      
	 	
                                              Section
      4.11

                                            	
                                              Investment
      Company Act

                                            	
                                              65

                                            
	 	 
      	 
      	 
      
	 	
                                              Section
      4.12

                                            	
                                              Use
      of Proceeds

                                            	
                                              65

                                            
	 	 
      	 
      	 
      
	 	
                                              Section
      4.13

                                            	
                                              Insurance

                                            	
                                              65

                                            
	 	 
      	 
      	 
      
	 	
                                              Section
      4.14

                                            	
                                              Labor
      Matters

                                            	
                                              65

                                            
	 	 
      	 
      	 
      
	 	
                                              Section
      4.15

                                            	
                                              ERISA

                                            	
                                              65

                                            
	 	 
      	 
      	 
      
	 	
                                              Section
      4.16

                                            	
                                              Environmental
      Matters

                                            	
                                              66

                                            
	 	 
      	 
      	 
      
	 	
                                              Section
      4.17

                                            	
                                              Intellectual
      Property

                                            	
                                              67

                                            
	 	 
      	 
      	 
      
	 	
                                              Section
      4.18

                                            	
                                              Title;
      Real Property

                                            	
                                              67

                                            
	 	 
      	 
      	 
      
	 	
                                              Section
      4.19

                                            	
                                              Collateral.

                                            	
                                              67

                                            
	 	 
      	 
      	 
      
	 	
                                              Section
      4.20

                                            	
                                              The
      Orders.

                                            	
                                              68

                                            
	 	 
      	 
      	 
      
	ARTICLE
      V Financial Covenants	
                                              68

                                            
	 	 
      	 
      
	 	
                                              Section
      5.1

                                            	
                                              Minimum
      EBITDAR

                                            	
                                              68

                                            
	 	 
      	 
      	 
      
	 	
                                              Section
      5.2

                                            	
                                              Maximum
      Capital Expenditures

                                            	
                                              69

                                            
	 	 
      	 
      	 
      
	ARTICLE
      VI Reporting Covenants	
                                              69

                                            
	 	 
      	 
      
	 	
                                              Section
      6.1

                                            	
                                              Financial
      Statements

                                            	
                                              69

                                            
	 	 
      	 
      	 
      
	 	
                                              Section
      6.2

                                            	
                                              Default
      Notices

                                            	
                                              72

                                            
	 	 
      	 
      	 
      
	 	
                                              Section
      6.3

                                            	
                                              Litigation

                                            	
                                              72

                                            
	 	 
      	 
      	 
      
	 	
                                              Section
      6.4

                                            	
                                              Asset
      Sales

                                            	
                                              72

                                            
	 	 
      	 
      	 
      
	 	
                                              Section
      6.5

                                            	
                                              SEC
      Filings; Press Releases

                                            	
                                              72

                                            


                                    

                                  

                                

                              

                            

                          

                        

                      

                    

                  

                

              

            

          

        

      

    

    


    
      
        
        

      

      
        ii

        
          

        

      

      
        
        

      

       

    

    TABLE
OF CONTENTS

    (continued)

    


    
      
        
          
            
              	 	 
      	 
      	
                      Page

                    
	 	 
      	 
      	 
      
	 	
                      Section
      6.6

                    	
                      Labor
      Relations

                    	
                      73

                    
	 	 
      	 
      	 
      
	 	
                      Section
      6.7

                    	
                      Tax
      Returns

                    	
                      73

                    
	 	 
      	 
      	 
      
	 	
                      Section
      6.8

                    	
                      Insurance

                    	
                      73

                    
	 	 
      	 
      	 
      
	 	
                      Section
      6.9

                    	
                      ERISA
      Matters

                    	
                      73

                    
	 	 
      	 
      	 
      
	 	
                      Section
      6.10

                    	
                      Environmental
      Matters

                    	
                      74

                    
	 	 
      	 
      	 
      
	 	
                      Section
      6.11

                    	
                      Borrowing
      Base Deliverables and Determination

                    	
                      75

                    
	 	 
      	 
      	 
      
	 	
                      Section
      6.12

                    	
                      Other
      Information

                    	
                      77

                    
	 	 
      	 
      	 
      
	ARTICLE
      VII Affirmative Covenants	
                      77

                    
	 	 
      	 
      
	 	
                      Section
      7.1

                    	
                      Preservation
      of Corporate Existence, Etc.

                    	
                      77

                    
	 	 
      	 
      	 
      
	 	
                      Section
      7.2

                    	
                      Compliance
      with Laws, Etc.

                    	
                      77

                    
	 	 
      	 
      	 
      
	 	
                      Section
      7.3

                    	
                      Conduct
      of Business

                    	
                      77

                    
	 	 
      	 
      	 
      
	 	
                      Section
      7.4

                    	
                      Payment
      of Taxes, Etc.

                    	
                      78

                    
	 	 
      	 
      	 
      
	 	
                      Section
      7.5

                    	
                      Maintenance
      of Insurance

                    	
                      78

                    
	 	 
      	 
      	 
      
	 	
                      Section
      7.6

                    	
                      Access

                    	
                      78

                    
	 	 
      	 
      	 
      
	 	
                      Section
      7.7

                    	
                      Update
      Calls.

                    	
                      78

                    
	 	 
      	 
      	 
      
	 	
                      Section
      7.8

                    	
                      Keeping
      of Books

                    	
                      79

                    
	 	 
      	 
      	 
      
	 	
                      Section
      7.9

                    	
                      Maintenance
      of Properties, Etc.

                    	
                      79

                    
	 	 
      	 
      	 
      
	 	
                      Section
      7.10

                    	
                      Application
      of Proceeds

                    	
                      79

                    
	 	 
      	 
      	 
      
	 	
                      Section
      7.11

                    	
                      Environmental

                    	
                      79

                    
	 	 
      	 
      	 
      
	 	
                      Section
      7.12

                    	
                      Additional
      Collateral and Guaranties

                    	
                      79

                    
	 	 
      	 
      	 
      
	 	
                      Section
      7.13

                    	
                      Control
      Accounts; Approved Deposit Accounts

                    	
                      81

                    
	 	 
      	 
      	 
      
	 	
                      Section
      7.14

                    	
                      Real
      Property

                    	
                      83

                    
	 	 
      	 
      	 
      
	 	
                      Section
      7.15

                    	
                      Payment
      of Obligations.

                    	
                      83

                    
	 	 
      	 
      	 
      
	 	
                      Section
      7.16

                    	
                      Post-Closing
      Items

                    	
                      83

                    
	 	 
      	 
      	 
      
	ARTICLE
      VIII Negative Covenants	
                      84

                    
	 	 
      	 
      
	 	
                      Section
      8.1

                    	
                      Indebtedness

                    	
                      84

                    
	 	 
      	 
      	 
      
	 	
                      Section
      8.2

                    	
                      Liens,
      Etc.

                    	
                      85

                    
	 	 
      	 
      	 
      
	 	
                      Section
      8.3

                    	
                      Investments

                    	
                      87

                    
	 	 
      	 
      	 
      
	 	
                      Section
      8.4

                    	
                      Sale
      of Assets

                    	
                      87

                    
	 	 
      	 
      	 
      
	 	
                      Section
      8.5

                    	
                      Restricted
      Payments

                    	
                      88

                    
	 	 
      	 
      	 
      
	 	
                      Section
      8.6

                    	
                      Prepayment
      and Cancellation of Indebtedness

                    	
                      89

                    


            

          

        

      

    

    


    
      
        
        

      

      
        iii

        
          

        

      

      
        
        

      

    

     

    TABLE
OF CONTENTS

    (continued)

    


    
      
        
          
            
              
                
                  
                    
                      	 	 
      	 
      	
                              Page

                            
	 	 
      	 
      	 
      
	 	
                              Section
      8.7

                            	
                              Restriction
      on Fundamental Changes

                            	
                              89

                            
	 	 
      	 
      	 
      
	 	
                              Section
      8.8

                            	
                              Change
      in Nature of Business

                            	
                              89

                            
	 	 
      	 
      	 
      
	 	
                              Section
      8.9

                            	
                              Transactions
      with Affiliates

                            	
                              89

                            
	 	 
      	 
      	 
      
	 	
                              Section
      8.10

                            	
                              Limitations
      on Restrictions on Subsidiary Distributions; No New Negative
      Pledge

                            	
                              90

                            
	 	 
      	 
      	 
      
	 	
                              Section
      8.11

                            	
                              Modification
      of Constituent Documents

                            	
                              90

                            
	 	 
      	 
      	 
      
	 	
                              Section
      8.12

                            	
                              Modification
      of Debt Agreements

                            	
                              91

                            
	 	 
      	 
      	 
      
	 	
                              Section
      8.13

                            	
                              Accounting
      Changes; Fiscal Year

                            	
                              91

                            
	 	 
      	 
      	 
      
	 	
                              Section
      8.14

                            	
                              Margin
      Regulations

                            	
                              91

                            
	 	 
      	 
      	 
      
	 	
                              Section
      8.15

                            	
                              Operating
      Leases; Sale/Leasebacks

                            	
                              91

                            
	 	 
      	 
      	 
      
	 	
                              Section
      8.16

                            	
                              No
      Speculative Transactions

                            	
                              91

                            
	 	 
      	 
      	 
      
	 	
                              Section
      8.17

                            	
                              Compliance
      with ERISA

                            	
                              91

                            
	 	 
      	 
      	 
      
	 	
                              Section
      8.18

                            	
                              Chapter
      11 Claims.

                            	
                              92

                            
	 	 
      	 
      	 
      
	 	
                              Section
      8.19

                            	
                              Available
      Credit

                            	
                              92

                            
	 	 
      	 
      	 
      
	ARTICLE
      IX Events of Default	
                              92

                            
	 	 
      	 
      
	 	
                              Section
      9.1

                            	
                              Events
      of Default

                            	
                              92

                            
	 	 
      	 
      	 
      
	 	
                              Section
      9.2

                            	
                              Remedies

                            	
                              96

                            
	 	 
      	 
      	 
      
	 	
                              Section
      9.3

                            	
                              Actions
      in Respect of Letters of Credit

                            	
                              96

                            
	 	 
      	 
      	 
      
	ARTICLE
      X The Administrative Agent	
                              96

                            
	 	 
      	 
      
	ARTICLE
      XI	
                              99

                            
	 	 
      	 
      
	Guarantee	
                              99

                            
	 	 
      	 
      
	 	
                              Section
      11.1

                            	
                              Guarantee

                            	
                              99

                            
	 	 
      	 
      	 
      
	 	
                              Section
      11.2

                            	
                              Right
      of Contribution

                            	
                              99

                            
	 	 
      	 
      	 
      
	 	
                              Section
      11.3

                            	
                              No
      Subrogation.

                            	
                              100

                            
	 	 
      	 
      	 
      
	 	
                              Section
      11.4

                            	
                              Amendments,
      etc. with Respect to the Obligations.

                            	
                              100

                            
	 	 
      	 
      	 
      
	 	
                              Section
      11.5

                            	
                              Guarantee
      Absolute and Unconditional.

                            	
                              101

                            
	 	 
      	 
      	 
      
	 	
                              Section
      11.6

                            	
                              Reinstatement

                            	
                              101

                            
	 	 
      	 
      	 
      
	 	
                              Section
      11.7

                            	
                              Payments.

                            	
                              101

                            
	 	 
      	 
      	 
      
	ARTICLE
      XII	
                              101

                            
	 	 
      	 
      
	Remedies;
      Application of Proceeds	
                              101

                            
	 	 
      	 
      
	 	
                              Section
      12.1

                            	
                              Remedies;
      Obtaining the Collateral Upon Default.

                            	
                              101

                            
	 	 
      	 
      	 
      
	 	
                              Section
      12.2

                            	
                              Remedies;
      Disposition of the Collateral.

                            	
                              102

                            


                    

                  

                

              

            

          

        

      

    

    


    
      
        
        

      

      
        iv

        
          

        

      

      
        
        

      

    

     

    TABLE
OF CONTENTS

    (continued)

    


    
      
        
          
            	 	 
      	 
      	
                    Page

                  
	 	 
      	 
      	 
      
	 	
                    Section
      12.3

                  	
                    Application
      of DIP Proceeds.

                  	
                    103

                  
	 	 
      	 
      	 
      
	 	
                    Section
      12.4

                  	
                    WAIVER
      OF CLAIMS.

                  	
                    103

                  
	 	 
      	 
      	 
      
	 	
                    Section
      12.5

                  	
                    Remedies
      Cumulative.

                  	
                    104

                  
	 	 
      	 
      	 
      
	 	
                    Section
      12.6

                  	
                    Discontinuance
      of Proceeding.

                  	
                    104

                  
	 	 
      	 
      	 
      
	ARTICLE XIII
      Miscellaneous	
                    104

                  
	 	 
      	 
      
	 	
                    Section
      13.1

                  	
                    Amendments,
      Waivers, Etc.

                  	
                    104

                  
	 	 
      	 
      	 
      
	 	
                    Section
      13.2

                  	
                    Expenses;
      Indemnity; Damage Waiver

                  	
                    106

                  
	 	 
      	 
      	 
      
	 	
                    Section
      13.3

                  	
                    Successors
      and Assigns

                  	
                    108

                  
	 	 
      	 
      	 
      
	 	
                    Section
      13.4

                  	
                    Limitation
      of Liability

                  	
                    110

                  
	 	 
      	 
      	 
      
	 	
                    Section
      13.5

                  	
                    Right
      of Set-off

                  	
                    110

                  
	 	 
      	 
      	 
      
	 	
                    Section
      13.6

                  	
                    Sharing
      of Payments, Etc.

                  	
                    111

                  
	 	 
      	 
      	 
      
	 	
                    Section
      13.7

                  	
                    Notices,
      Etc.

                  	
                    112

                  
	 	 
      	 
      	 
      
	 	
                    Section
      13.8

                  	
                    No
      Waiver; Remedies

                  	
                    113

                  
	 	 
      	 
      	 
      
	 	
                    Section
      13.9

                  	
                    Governing
      Law

                  	
                    113

                  
	 	 
      	 
      	 
      
	 	
                    Section
      13.10

                  	
                    Submission
      to Jurisdiction; Service of Process

                  	
                    113

                  
	 	 
      	 
      	 
      
	 	
                    Section
      13.11

                  	
                    Waiver
      of Jury Trial

                  	
                    114

                  
	 	 
      	 
      	 
      
	 	
                    Section
      13.12

                  	
                    Bankruptcy
      Court Pleadings

                  	
                    114

                  
	 	 
      	 
      	 
      
	 	
                    Section
      13.13

                  	
                    Marshaling;
      Payments Set Aside

                  	
                    114

                  
	 	 
      	 
      	 
      
	 	
                    Section
      13.14

                  	
                    Section
      Titles

                  	
                    114

                  
	 	 
      	 
      	 
      
	 	
                    Section
      13.15

                  	
                    Execution
      in Counterparts

                  	
                    115

                  
	 	 
      	 
      	 
      
	 	
                    Section
      13.16

                  	
                    Entire
      Agreement

                  	
                    115

                  
	 	 
      	 
      	 
      
	 	
                    Section
      13.17

                  	
                    Confidentiality

                  	
                    115

                  
	 	 
      	 
      	 
      
	 	
                    Section
      13.18

                  	
                    Patriot
      Act Notice

                  	
                    115

                  


          

        

      

    

     

    
      
         


      

      
        v

        
          

        

      

      
         


      

    


    
      
        	
                SCHEDULES

              	 
      	 
      
	
                Schedule
      I(A)

              	
                –

              	
                Term
      Commitments

              
	
                Schedule
      I(B)

              	
                –

              	
                Revolving
      Commitments

              
	
                Schedule
      II

              	
                –

              	
                Concentration
      and Disbursement Accounts

              
	
                Schedule
      III

              	
                –

              	
                Non-Specified
      Real Property

              
	
                Schedule
      IV

              	
                –

              	
                Specified
      Real Property

              
	
                Schedule
      2.3

              	
                –

              	
                Existing
      Letters of Credit

              
	
                Schedule
      4.2

              	
                –

              	
                Consents

              
	
                Schedule
      4.3

              	
                –

              	
                Capitalization

              
	
                Schedule
      4.7

              	 
      	
                Taxes

              
	
                Schedule
      4.14

              	
                –

              	
                Labor
      Matters

              
	
                Schedule
      4.16

              	
                –

              	
                Environmental
      Matters

              
	
                Schedule
      4.18

              	
                –

              	
                Real
      Property

              
	
                Schedule
      7.16

              	 
      	
                Expired
      Mortgages

              
	
                Schedule
      8.1

              	
                –

              	
                Existing
      Indebtedness

              
	
                Schedule
      8.2

              	
                –

              	
                Existing
      Liens

              
	
                Schedule
      8.3

              	
                –

              	
                Existing
      Investments

              
	
                Schedule
      8.9

              	
                –

              	
                Excluded
      Joint Venture Agreements

              
	
                Schedule
      8.10

              	 
      	
                Restrictions
      on Subsidiary Distributions and Negative Pledges

              
	 
      	 
      	 
      
	
                EXHIBITS

              	 
      	 
      
	
                Exhibit
      A

              	
                –

              	
                Form
      of Assignment and Acceptance

              
	
                Exhibit
      B

              	
                –

              	
                Form
      of Notice of Borrowing

              
	
                Exhibit
      C

              	
                –

              	
                Form
      of Interim Order

              
	
                Exhibit
      D

              	
                –

              	
                Form
      of Pledge and Security Agreement

              
	
                Exhibit
      E

              	
                –

              	
                Form
      of Borrowing Base Certificate

              
	
                Exhibit
      F

              	
                –

              	
                Form
      of Exemption Certificate

              
	
                Exhibit
      G

              	 
      	
                Form
      of Monthly Financial Statements

              
	
                Exhibit
      H-1

              	 
      	
                Form
      of Term Note

              
	
                Exhibit
      H-2

              	 
      	
                Form
      of Revolving Note

              


      

    

     

    
      
         


      

      
         


        
          

        

      

      
         


      

    


    Revolving
Credit, Term Loan and Guarantee Agreement  (this “Agreement”), dated as of May
3, 2010, among U.S. Concrete, Inc., a Delaware corporation (the “Borrower”), which is a debtor
and debtor-in-possession in a case pending under Chapter 11 of the Bankruptcy
Code, each of the other direct and indirect Domestic Subsidiaries of the
Borrower signatory hereto (such Subsidiaries, the “Guarantors” and, collectively
with the Borrower, but excluding the Specified Non-Filers (as defined below),
the “Debtors” and each
a “Debtor”), each of
which Debtors is a debtor and debtor-in-possession in a case pending under
Chapter 11 of the Bankruptcy Code (the cases of the Debtors, each a “Case” and, collectively, the
“Cases”), JPMORGAN
CHASE BANK, N.A., as Administrative Agent, and each lender from time to time
party hereto (collectively, the “Lenders” and each a “Lender”).

     

    PRELIMINARY
STATEMENTS

     

    On April
29, 2010 (the “Petition
Date”), the Debtors filed voluntary petitions with the Bankruptcy Court
(such term and other capitalized terms used in the introductory paragraph and in
these preliminary statements being used with the meanings given to such terms in
Section 1.1) initiating the Cases and have continued in the possession of their
assets and in the management of their businesses pursuant to Bankruptcy Code
Sections 1107 and 1108.

     

    Pursuant
to this Agreement and the Orders, the Lenders are making available to the
Borrower an $80,000,000 debtor-in-possession loan facility consisting of (i) a
term loan facility in an aggregate principal amount not to exceed $45,000,000
and (ii) a revolving facility in an aggregate principal amount not to exceed
$35,000,000.

     

    The
proceeds of the Loans will be used (i) for operating expenses, working capital
and other general corporate purposes of the Borrower, the other Loan Parties and
their respective Subsidiaries (including without limitation, for the payment of
fees and expenses incurred in connection with entering into this Agreement, the
Cases and the transactions contemplated hereby) and (ii) on the Closing Date to
repay in full the obligations outstanding under the Prepetition Credit
Agreement, in each case subject to the terms of this Agreement and the
Orders.

     

    To
provide guarantees for the repayment of the Loans and the payment of the other
Obligations of the Loan Parties hereunder and under the other Loan Documents,
each Cash Management Document and each Hedging Contract, the Loan Parties are
providing to the Administrative Agent and the Lenders, pursuant to this
Agreement, the other Loan Documents and the Orders, the following (each as more
fully described herein) and subject to the Carve Out (except for clause (a)
below):

     

    (a)           a
guarantee from each of the Guarantors of the due and punctual payment and
performance of the Obligations of the Borrower hereunder;

     

    (b)           an
allowed administrative expense claim entitled to the benefits of Bankruptcy Code
Section 364(c)(1) in each of the Cases, having a superpriority over any and all
administrative expenses of the kind specified in Bankruptcy Code Sections 503(b)
or 507(b);

     

    (c)           pursuant
to Bankruptcy Code Section 364(c)(2) a perfected first priority (subject to
permitted exceptions) Lien on all present and after-acquired property of the
Debtors not subject to a valid, perfected and non-avoidable Lien on the Petition
Date, excluding, in all cases, with respect to the obligations of the Loan
Parties under any Loan Document, (x) 34% of the issued and outstanding Stock of
any new or existing Excluded Foreign Subsidiary (and, for the avoidance of
doubt, 100% of the issued and outstanding Stock of any new or existing Foreign
Subsidiary not owned directly by a Debtor), (y) the Excluded JV Equity (any
Stock so excluded, together with any Stock excluded pursuant to clause (x)
above, the “Excluded
Stock”) and (z) other Excluded Collateral; and

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

       

    

    (d)           pursuant
to Bankruptcy Code Section 364(c)(3) a perfected junior Lien on all present and
after-acquired property of the Debtors that is otherwise subject to a valid,
perfected and non-avoidable Lien on the Petition Date or a valid Lien perfected
(but not granted) after the Petition Date to the extent such post-Petition Date
perfection in respect of a pre-Petition Date claim is expressly permitted under
Section 546(b) of the Bankruptcy Code, excluding, in all cases, any Excluded
Stock and other Excluded Collateral.

     

    Accordingly,
the parties hereto hereby agree as follows:

     

    ARTICLE
I 

    Definitions,
Interpretation and Accounting Terms

     

    Section
1.1 Defined
Terms

     

    As used
in this Agreement, the following terms have the following meanings (such
meanings to be equally applicable to both the singular and plural forms of the
terms defined):

     

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

     

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

     

    “Additional Guarantor” means
any Person who becomes a Guarantor after the Closing Date.

     

    “Additional Notes” means up to
$85 million in aggregate principal amount of additional notes issued under the
terms of the Notes Indenture, having the same terms and conditions as the Notes
issued under the Notes Indenture.

     

    “Adjusted LIBO Rate” means,
with respect to any Eurodollar Borrowing for any Interest Period, 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 (i) 1.0% per
annum plus (ii) 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” has the
meaning specified in the preamble to this Agreement.

     

    “Affected Lender” has the
meaning specified in Section 2.17.

     

    “Affiliate” means, with
respect to any Person, any other Person directly or indirectly controlling or
that is controlled by or is under common control with such Person, each officer,
director, general partner or joint-venturer of such Person, and each Person that
is the beneficial owner of 15% or more of any class of Voting Stock of such
Person.  For the purposes of this definition, “control” means the possession
of the power to direct or cause the direction of the management and policies of
such Person, whether through the ownership of voting securities, by contract or
otherwise.

     

    “Aggregate
Exposure”  means with respect to any Lender at any time, an
amount equal to (a) until the Closing Date, the aggregate amount of such
Lender’s Commitments at such time and (b) thereafter, the sum of (i) the
aggregate amount of such Lender’s Commitments then in effect and (ii) the
aggregate principal amount of such Lender’s Loans then outstanding.

     

    
      
        
        

      

      
        2

        
          

        

      

      
        
        

      

       

    

    “Aggregate Exposure
Percentage” means with respect to any Lender at any time, the ratio
(expressed as a percentage) of such Lender’s Aggregate Exposure at such time to
the Aggregate Exposure of all Lenders at such time.

     

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

     

    “Applicable Amount” means
$3,000,000.

     

    “Applicable Margin” means for
each type of Loan, the rate per annum set forth under the relevant column
heading below:

    


    
      
        
          
            	 
      	 	
                    CBFR Loans

                  	 	 	
                    Eurodollar Rate Loans

                  	 
	
                    Term
      Loans

                  	 	 	4.25	%	 	 	5.25	%
	
                    Revolving
      Loans

                  	 	 	2.50	%	 	 	3.50	%


          

        

      

    

     

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

     

    “Appraisal” means each
appraisal that is conducted after the Closing Date pursuant to Section
6.11(b) for
purpose of determining 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 Deposit Account”
means a Deposit Account (other than an Excluded Deposit Account) that is the
subject of an effective Deposit Account Control Agreement and that is maintained
by any Loan Party with a Deposit Account Bank.  “Approved Deposit Account”
includes all monies on deposit in a Deposit Account and all certificates and
instruments, if any, representing or evidencing such Deposit
Account.

     

    “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 (a) a
Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an
entity that administers or manages a Lender.

     

    “Approved Securities
Intermediary” means (i) a Securities Intermediary or Commodity
Intermediary selected or approved by the Administrative Agent, such approval not
to be unreasonably withheld, delayed or conditioned, and (ii) Merrill
Lynch.

     

    “Arranger” means J.P. Morgan
Securities Inc. in its capacity as sole lead arranger and sole
bookrunner.

     

    “Asset Sale” has the meaning
specified in Section 8.4.

     

    “Assignment and Acceptance”
means an assignment and acceptance entered into by a Lender and an Eligible
Assignee (except upon the occurrence and during the continuance of an Event of
Default, when an Assignment and Acceptance may be entered into by any assignee),
and accepted by the Administrative Agent, in substantially the form of Exhibit A.

     

    
      
        
        

      

      
        3

        
          

        

      

      
        
        

      

       

    

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

    


    “Availability Reserve” means,
effective (a) immediately, if a Default or Event of Default has occurred
and is continuing or (b) otherwise as of one Business Day after the date of
written notice of any determination thereof to the Borrower by the
Administrative Agent (which such notice shall provide reasonable detail for the
basis of the implementation of such reserve), such amounts (without duplication)
as the Administrative Agent may from time to time establish against the
Revolving Facility, in the Administrative Agent’s sole discretion, exercised
reasonably and in good faith, deems appropriate in order to, preserve and
protect (i) the value of the Borrowing Base Collateral or any other material
portion of the Collateral, (ii) the ability of the Administrative Agent and the
Lenders to realize such value, (iii) the Lien of the Administrative Agent
therein or (iv) the priority of the obligations owing under the Loan Documents
relative to any other liability of the Borrower or its Subsidiaries (including,
if applicable, liabilities in respect of Cash Management Obligations and
liabilities with respect to net mark-to-market losses incurred under Hedging
Contracts entered into with Hedging Creditors).

     

    “Available Credit” means, at
any time, the result of (a) the lesser of (i) the then effective Revolving
Commitments and (ii) the Borrowing Base at such time minus (b) the sum of (i) the
aggregate Revolving Outstandings at such time and (ii) without duplication, any
Availability Reserve in effect at such time.

     

    “Bankruptcy Code” means the
Bankruptcy Reform Act of 1978, as heretofore and hereafter amended, and codified
as 11 U.S.C. §§101 et seq.

     

    “Bankruptcy Court” means the
United States Bankruptcy Court for the District of Delaware, or any other court
having jurisdiction over the Cases from time to time.

     

    “Board” means the Board of
Governors of the Federal Reserve System of the United States (or any
successor).

     

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

     

    “Borrower’s Accountants” means
PricewaterhouseCoopers LLP or other independent nationally-recognized
accountants acceptable to the Administrative Agent.

     

    “Borrowing” means either a
Revolving Borrowing or a Term Borrowing.

     

    “Borrowing Base” means, at any
time, (a) the sum of (i) the product of 85% and the face amount of all Eligible
Receivables 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 product of (x) the product of 85% multiplied by the Orderly
Liquidation Value Inventory Rate multiplied by (y) the value
of the Eligible Inventory of the Borrowing Base Contributors (valued, in each
case, at the lower of cost or market on a first-in, first-out basis) at such
time and (iii) the lesser of (x) $20,000,000 and (y) the product of 85% of the
Orderly Liquidation Value Of Eligible Trucks of the Borrowing Base Contributors
at such time, minus (b)
any Eligibility Reserve then in effect and applicable to the Borrowing Base
Collateral.  It being understood, for the avoidance of doubt, that the
Borrowing Base at any time shall be determined by reference to the most recent
Borrowing Base Certificate theretofore delivered to the Administrative (subject
to any Availability Reserve taken by the Administrative Agent in its sole
discretion at any time in accordance with the terms hereunder).

     

    
      
        
        

      

      
        4

        
          

        

      

      
        
        

      

       

    

    “Borrowing Base Certificate”
means a certificate of the Borrowing Base Contributors substantially in the form
of Exhibit E, or
otherwise in form and substance reasonably satisfactory to the Administrative
Agent.

     

    “Borrowing Base Collateral”
means the Accounts, Inventory and Trucks of the Borrowing Base Contributors
other than Excluded Collateral.

     

    “Borrowing Base Contributors”
means (a) the Borrower and (b) each Debtor as of the Closing Date.

     

    “Budget” means the
consolidated forecasts of the consolidated income statement, balance sheet and
cash flows of the Borrower and its Subsidiaries through the date that is one
year after the Closing Date (on a monthly basis), including the material
assumptions on which such forecasts were based, and setting forth the
anticipated disbursements and uses of the Commitments, prepared by the
Borrower’s management assuming that the Notes and the Additional Notes are
outstanding during such periods up to the Effective Date.

     

    “Business Day” means a day of
the year on which banks are not required or authorized to close in New York City
and, if the applicable Business Day relates to notices, determinations, fundings
and payments in connection with the Adjusted LIBO Rate or any Eurodollar Rate
Loans, a day on which dealings in Dollar deposits are also carried on in the
London interbank market.

     

    “Capital Expenditures” means,
for any Person for any period, the aggregate of amounts that would be reflected
as additions to property, plant or equipment on a Consolidated statement of cash
flow of such Person and its Subsidiaries, excluding costs and interest
capitalized during construction; provided that such term shall
not include (i) amounts expended during such period to replace or repair assets,
equipment or other property lost, destroyed, damaged or condemned or otherwise
to acquire, maintain, develop, construct, improve, upgrade or repair assets in
replacement of assets, equipment or other property lost, destroyed, damaged or
condemned, in each case, solely (except for any applicable customary 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 and (ii) expenditures that are
accounted for as capital expenditures of such Person and that are actually paid
for or actually reimbursed by a Person that is not Borrower or any of its
Subsidiaries (it being understood that to the extent the Borrower or any
Subsidiary makes any expenditures to the Excluded Joint Venture for which such
Borrower or Subsidiary is actually reimbursed, such amount shall not constitute
Capital Expenditures).

     

    “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.

     

    “Capital Lease Obligations”
means, with respect to any Person, the capitalized amount of all Consolidated
obligations of such Person or any of its Subsidiaries under Capital
Leases.

     

    “Carve Out” has the meaning
specified in Section 2.19.

     

    “Carve Out Cap” has the
meaning specified in Section 2.19.

     

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

     

    
      
        
        

      

      
        5

        
          

        

      

      
        
        

      

       

    

    “Cash Collateral Account”
means any Deposit Account or Securities Account that is (a) established by the
Administrative Agent from time to time in its sole discretion to receive cash
and Cash Equivalents (or purchase cash or Cash Equivalents with funds received)
from the Loan Parties or Persons acting on their behalf pursuant to the Loan
Documents, (b) with such depositaries and securities intermediaries as the
Administrative Agent may determine in its sole discretion, (c) in the name of
the Administrative Agent (although such account may also have words referring to
the Borrower and the account’s purpose), (d) under the sole dominion and control
of the Administrative Agent and (e) in the case of a Securities Account, with
respect to which the Administrative Agent shall be the Entitlement Holder and
the only Person authorized to give Entitlement Orders with respect
thereto.

     

    “Cash Equivalents” means (a)
securities issued or fully guaranteed or insured by the United States federal
government or any agency thereof, (b) certificates of deposit, eurodollar time
deposits, overnight bank deposits and bankers’ acceptances of any commercial
bank organized under the laws of the United States, any state thereof, the
District of Columbia, any foreign bank, or its branches or agencies (fully
protected against currency fluctuations) that, at the time of acquisition, are
rated at least “A-2” by
S&P or “P-2” by
Moody’s, (c) commercial paper of an issuer rated at least “A-2” by S&P or “P-2” by Moody’s, (d) shares
of any money market fund that (i) has at least 95% of its assets invested
continuously in the types of investments referred to in clauses (a), (b) and (c) above or clauses (e), (f), (g) and
(h) below, (ii) has net
assets exceeding $500,000,000 and (iii) is rated at least “A-2” by S&P or “P-2” by Moody’s, (e)
repurchase obligations of any Lender or of any commercial bank satisfying the
requirements of clause
(b) above, having a term of not more than 30 days, with respect to
securities issued or fully guaranteed or insured by the United States
government, (f) securities with maturities of one year or less from the date of
acquisition issued or fully guaranteed by any state, commonwealth or territory
of the United States, by any political subdivision or taxing authority of any
such state, commonwealth or territory or by any foreign government, the
securities of which state, commonwealth, territory, political subdivision,
taxing authority or foreign government (as the case may be) are rated at least A
by S&P or A-2 by Moody’s, (g) securities with maturities of 270 days or less
from the date of acquisition backed by standby letters of credit issued by any
Lender or any commercial bank satisfying the requirements of clause (b) above, (h) (i)
commercial paper and variable and fixed rate notes issued by any Lender or other
bank or financial institution (or by the parent company of any such Person), in
each case, with a short-term commercial paper rating of at least A-2 by S&P
or at least P-2 by Moody’s and (ii) commercial paper, auction rate notes and
variable rate notes issued by, or guaranteed by, any industrial or financial
company with a short-term commercial paper rating of at least A-2 by S&P or
at least P-2 by Moody’s or at least F-2 or the equivalent thereof by Fitch, and
in each case maturing within nine months after the date of acquisition thereof
and (i) money market funds that (i) are rated AAA by S&P and Aaa by Moody’s
and (ii) have portfolio assets of at least $5,000,000,000; provided, however, that the
maturities of all obligations of the type specified in clauses (a), (b) and (c) above shall not exceed
180 days.

     

    “Cash Flow Forecast” has the
meaning specified in Section 6.1(i).

     

    “Cash Management Document”
means any certificate, agreement or other document executed by any Loan Party in
respect of the Cash Management Obligations of any Loan Party.

     

    “Cash Management Obligation”
means, as applied to any Person, any direct or indirect liability, contingent or
otherwise, of such Person in respect of cash management services (including
treasury, depository, overdraft, credit or debit card, electronic funds transfer
and other cash management arrangements) provided after the Closing
Date (regardless of whether these or similar services were provided prior to the
Closing Date by the Administrative Agent, any Lender or any Affiliate of any of
them) by the Administrative Agent, any Lender or any Affiliate of any of them,
in each case, so long as the applicable Lender is a Lender hereunder, including
obligations for the payment of reasonable fees, interest, charges, expenses,
attorneys’ fees and disbursements in connection therewith, if any.

     

    
      
        
        

      

      
        6

        
          

        

      

      
        
        

      

       

    

    “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 Borrowing” means a
borrowing consisting of CBFR Loans.

     

    “CBFR Loan” means any Loan
during any period in which it bears interest based on the CB Floating
Rate.

     

    “Change of 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 35% or more of the
issued and outstanding voting securities within the meaning of Rule 13d-5(b) of
the Exchange Act of the Borrower or (b) during any period of twelve consecutive
calendar months commencing from and after the Closing 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.

     

    “Closing Date” means May 3,
2010.

     

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

     

    “Collateral” means all
property and interests in property and proceeds thereof now owned or hereafter
acquired by any Loan Party in or upon which a Lien is granted under this
Agreement, the Orders or any Collateral Document, but in any event, excluding
the Excluded Collateral, and subject to the provisions of Section
2.19.

     

    “Collateral Access Agreement”
means individually and collectively, each “Collateral Access Agreement” referred
to in the Pledge and Security Agreement.

     

    “Collateral Documents” means
the Pledge and Security Agreement, the Deposit Account Control Agreements, the
Securities Account Control Agreements, the Mortgages and any other document
executed and delivered by a Loan Party granting a Lien on any of its property to
secure payment of the Obligations.

     

    “Committee” has the meaning
specified in Section 2.19.

     

    “Commitments” means the
collective reference to the Revolving Commitments and the Term
Commitments.

     

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

     

    “Commodity Intermediary” has
the meaning given to such term in the UCC.

     

    “Compliance Certificate” has
the meaning specified in Section 6.1(d).

     

    
      
        
        

      

      
        7

        
          

        

      

      
        
        

      

       

    

    “Concentration and Disbursement
Accounts” shall mean, collectively, the deposit accounts of Borrower
identified on Schedule
II and such other accounts as may be established after the date hereof in
accordance with the terms hereof that are used as concentration or disbursement
accounts.

     

    “Confirmation Order” means an
order of the Bankruptcy Court confirming a plan of reorganization.

     

    “Consolidated” means, with
respect to any Person, the consolidation of accounts of such Person and its
Subsidiaries in accordance with GAAP.

     

    “Consolidated Net Income”
means, for any Person for any period, the Consolidated net income (or loss) of
such Person and its Subsidiaries for such period; provided, however, that (a)
the net income of any other Person in which such Person or one of its
Subsidiaries has a joint interest with a third party (which interest does not
cause the net income of such other Person to be Consolidated into the net income
of such Person) shall be included only to the extent of the amount of dividends
or distributions paid in cash to such Person or Subsidiary, (b) the net income
of any Subsidiary of such Person that is subject to any restriction or
limitation on the payment of dividends or the making of other distributions
shall be excluded to the extent of such restriction or limitation and (c)
extraordinary gains and losses and any one-time increase or decrease to net
income that is required to be recorded because of the adoption of new accounting
policies, practices or standards required by GAAP shall be
excluded.

     

    “Constituent Documents” means,
with respect to any Person, (a) the articles of incorporation, certificate of
incorporation, constitution or certificate of formation (or the equivalent
organizational documents) of such Person, (b) the by laws or operating agreement
(or the equivalent governing documents) of such Person and (c) any document
setting forth the manner of election and duties of the directors or managing
members (or any equivalent managers) of such Person (if any) and the
designation, amount or relative rights, limitations and preferences of any class
or series of such Person’s Stock.

     

    “Contaminant” means any
material, substance or waste that is classified, regulated or otherwise
characterized under any Environmental Law as hazardous, toxic, a contaminant or
a pollutant or by other words of similar meaning or regulatory effect, including
any petroleum or petroleum derived substance or waste, asbestos and
polychlorinated biphenyls and any other substance, material or waste that would
be reasonably be expected to result in liability under any Environmental
Law.

     

    “Contractual Obligation” of
any Person means any obligation, agreement, undertaking or similar provision of
any Security issued by such Person or of any agreement, undertaking, contract,
lease, indenture, mortgage, deed of trust or other instrument (excluding a Loan
Document) to which such Person is a party or by which it or any of its property
is bound or to which any of its property is subject.

     

    “Control Account” means a
Securities Account or Commodity Account that is the subject of an effective
Securities Account Control Agreement and that is maintained by any Loan Party
with an Approved Securities Intermediary.  “Control Account” includes all
Financial Assets held in a Securities Account or a Commodity Account and all
certificates and instruments, if any, representing or evidencing the Financial
Assets contained therein.

     

    “Corporate Chart” means a
corporate organizational chart, list or other similar document and setting forth
for each Person that is a Loan Party that is subject to Section 7.12 or that is
a Subsidiary of any of them, (a) the full legal name of such Person (and any
trade name, fictitious name or other name such Person may have had or operated
under), (b) the jurisdiction of organization, the organizational number (if any)
and the tax identification number (if any) of such Person, (c) the location of
such Person’s chief executive office (or sole place of business) and (d) the
number of shares of each class of such Person’s Stock authorized (if
applicable), the number outstanding as of the date of delivery and the number
and percentage of such outstanding shares for each such class owned (directly or
indirectly) by any Loan Party or any Subsidiary of any of them.

     

    
      
        
        

      

      
        8

        
          

        

      

      
        
        

      

       

    

    “Credit Impairment Event” means
(i) the release of a material portion of the Collateral, (ii)
the release of any Guarantor from its obligations under Article XI,
(iii) the payment of adequate protection, (iv) any creditor obtaining
relief from stay to foreclose on assets of the Loan Parties in an amount in
excess of $100,000, (v) any amendment or waiver of any Specified Financial
Covenants or the underlying definitions used in the Specified Financial
Covenants, (vi) the amendment or waiver of Section 2.8 that materially adversely
affects either, but not both in substantially the same manner, of the Revolving
Lenders or the Term Lenders, (vii) the waiver of any Default or Event of Default
resulting from a breach by any Debtor of the Interim Order or the Final
Order or (viii) any modification of either the Interim Order or the Final Order
in a manner adverse to the Lenders, provided, that
notwithstanding anything herein to the contrary, no action or event shall be a
Credit Impairment Event if such action or event is permitted pursuant to the
terms hereof.

     

    “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, (ii)
in respect of which the aggregate liability of such Person does not exceed
$1,000,000 at any time or (iii) that are otherwise stayed pursuant to the
Cases;

     

    (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, (ii) in respect of which the aggregate liability of
such Person does not exceed $1,000,000 at any time or (iii) that are otherwise
stayed pursuant to the Cases;

     

    (c)           deposits
and pledges of cash, Cash Equivalents 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 or subleases 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;

     

    
      
        
        

      

      
        9

        
          

        

      

      
        
        

      

       

    

    (f)           
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;

     

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

     

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

     

    (i)           
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.

     

    “Debt Issuance” means the
incurrence of Indebtedness (a) of the type specified in clause (a) or (b) of the definition of
“Indebtedness” by the
Borrower or any of its Subsidiaries and (b) incurred pursuant to Section
8.1(k).

     

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

     

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

     

    “Defaulting Lender” means any
Lender that (a) has failed to fund any portion of its Loans or participations in
Letters of Credit required to be funded by it hereunder within 2 Business Days
of the date required to be funded by it hereunder, (b) has notified the
Administrative Agent, any Issuer, 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 3 Business Days of the date
when due, unless the subject of a good faith dispute, or (d) becomes (or is) the
subject of any action or proceeding of a type described in Section 9.1(f) (or
any comparable proceeding initiated by a regulatory authority having
jurisdiction over such Lender).

     

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

     

    “Deposit Account Bank” means a
financial institution selected or approved by the Administrative Agent, such
approval not to be unreasonably withheld, delayed or conditioned.  The
following financial institutions are approved:  Bank of America, N.A.
and JPMorgan.

     

    “Deposit Account Control
Agreement” has the meaning specified in the Pledge and Security
Agreement.

     

    “Designated Real Property”
means the following Real Property: (i) Prosper Plant, 706 S. Dallas Parkway,
Collin County, Texas; (ii) Alliance Plant, 9.431 Acres, Denton County 13624 FM
1171, Roanoke, Texas and part of the Alliance Plant property consisting of
10.438 acres in Denton County, Roanoke, Texas and (iii) Plant #260, Frisco Batch
Plant, 14800 SH-121, Frisco, Texas.

     

    “Disqualified Stock” means
with respect to any Person, any Stock that, by its terms (or by the terms of any
Security into which it is convertible or for which it is exchangeable), or upon
the happening of any event, matures or is mandatorily redeemable, pursuant to a
sinking fund obligation or otherwise, or is exchangeable for Indebtedness of
such Person or is redeemable at the option of the holder thereof, in whole or in
part, on or prior to the Scheduled Termination Date.

     

    
      
        
        

      

      
        10

        
          

        

      

      
        
        

      

       

    

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

     

    “Domestic Person” means any
“United States person”
under and as defined in Section 7701(a)(30) of the Code.

     

    “Domestic Subsidiary” means
any Subsidiary of the Borrower organized under the laws of any state of the
United States of America or the District of Columbia.

     

    “EBITDAR” means, with respect
to any Person for any period, (a) Consolidated 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
Consolidated 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, (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 and (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 plus (c) reorganization and
restructuring costs, charges and expenses (including fees, costs and expenses
incurred in connection with this Agreement, the restructuring or repayment of
the Prepetition Credit Agreement, or the transactions contemplated hereby or
thereby) in an aggregate amount during the term of this Agreement not to exceed
(w) $7,500,000 in the aggregate as of June 30, 2010, (x) $18,500,000 in the
aggregate as of September 30, 2010, (y) $24,000,000 in the aggregate as of
December 31, 2010 and (z) $26,000,000 in the aggregate throughout the term of
this Agreement minus
(d) the sum of, in each case to the extent included in the calculation of such
Consolidated 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 Consolidated 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 “EBITDAR” include
any gain or loss from the early extinguishment or repurchase of Indebtedness.

     

    “Effective Date” means the
effective date of a plan of reorganization in the Cases.

     

    “Eligibility Reserves” means,
effective (a) immediately, if any Default or Event of Default has occurred
and is continuing or (b) otherwise, as of one Business Day after the date
of written notice of any determination thereof to the Borrower by the
Administrative Agent (which such notice shall provide reasonable detail for the
basis of the implementation of such reserve) immediately, such amounts as the
Administrative Agent, in its sole discretion, exercised reasonably and in good
faith, may from time to time establish against the gross amounts of Eligible
Receivables, Eligible Inventory and/or Eligible Trucks to reflect risks or
contingencies existing on or arising after the Closing Date that are reasonably
expected to affect any one or more classes of such items and that have not
already been taken into account in the calculation of the Borrowing Base or any
Availability Reserve (including, without limitation, reserves for excess
dilution of Accounts of the Borrowing Base Contributors).

     

    “Eligible Assignee” means (a)
a Lender or an Affiliate or Approved Fund of any Lender, (b) a commercial bank
having total assets exceeding $5,000,000,000, (c) a finance company, insurance
company or any other financial institution or Fund, in each case reasonably
acceptable to the Administrative Agent and regularly engaged in making,
purchasing or investing in loans and having a net worth, determined in
accordance with GAAP, exceeding $250,000,000 (or, to the extent net worth is
less than such amount, a finance company, insurance company, other financial
institution or Fund, reasonably acceptable to the Administrative Agent and the
Borrower) or (d) a savings and loan association or savings bank organized under
the laws of the United States or any State thereof having a net worth,
determined in accordance with GAAP, exceeding $250,000,000.

     

    
      
        
        

      

      
        11

        
          

        

      

      
        
        

      

       

    

    “Eligible Inventory” means 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, goods subject to an agreement providing for a bill and hold
arrangement (but only to the extent any Account relating thereto is not
otherwise eligible for inclusion as an Eligible Receivable), finished goods,
truck parts and supplies (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) of the definition
thereof) do not have priority over the Lien in favor of the Administrative
Agent, (c) with respect to which no representation or warranty contained in any
Loan Document has been breached, (d) that is not, in the Administrative Agent’s
sole discretion, exercised reasonably and in good faith, obsolete or
unmerchantable, (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 Pledge and Security
Agreement, the Orders or other agreement reasonably satisfactory to the
Administrative Agent to sell such Inventory in connection with a liquidation
thereof and (f) that the Administrative Agent deems to be Eligible Inventory
based on such credit and collateral considerations as the Administrative Agent
may, in its sole discretion, exercised reasonably and in good faith, deem
appropriate.  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), (iv) “fuel” or “gasoline” for operational use
by such Borrowing Base Contributor, (vi) goods which constitute forms or casting
patterns used in the production of pre-cast concrete Inventory, (vii) goods
which constitute personal computers (and equipment and supplies related
thereto), (viii) goods which are classified as “Other” in the most recent
Appraisal delivered to the Administrative Agent, (ix) spare parts used in
maintenance of the Trucks and which are identified in the most recent Appraisal
delivered to the Administrative Agent as parts “without supporting detail” or
similar notation, (x) goods for which a reserve has been taken on the balance
sheet of such Borrowing Base Contributor or (xi) goods located, stored, used or
held at the premises of a third party unless (A)(1) the Administrative Agent
shall have received a Collateral Access Agreement or (2) in the case of
Inventory located at a leased premises, and without duplication of any
“occupancy costs” reflected in the most recent Appraisal delivered to the
Administrative Agent, an Eligibility Reserve of up to three months’ rent (as
determined by the Administrative Agent in its sole discretion, exercised
reasonably and in good faith) shall have been established with respect thereto
and (B) an appropriate UCC 1 financing statement shall have been properly
filed.  For the avoidance of doubt, eligible “raw materials” means the
Eligible Inventory of each Borrowing Base Contributor that is classified,
consistent with past practice, on such Borrowing Base Contributor’s account
system as “raw materials”.

     

    “Eligible Receivable” means
the gross outstanding balance of each Account of each Borrowing Base Contributor
arising out of the sale of merchandise, goods or services in the ordinary course
of business, that is made by such Borrowing Base Contributor to a Person that is
not an Affiliate of such Borrowing Base Contributor and that constitutes
Collateral in which the Administrative Agent has a fully perfected first
priority 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; provided, however, that an
Account shall not be an “Eligible Receivable” if any
of the following shall be true:

     

    
      
        
        

      

      
        12

        
          

        

      

      
        
        

      

       

    

    (a)         
such Account 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

     

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

     

    (c)         
the
Account Debtor on such Account 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

     

    (d)         
the
Account Debtor on such Account 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 unless such Accounts arose
on a post-petition basis and (A) 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 (B) the Administrative Agent, acting
in its sole discretion, determines that such Account shall be an Eligible
Receivable; provided,
however, that the aggregate amount of all Eligible Receivables under this
clause (d) shall not,
at any time, exceed 5% of the Eligible Receivables of the Borrowing Base
Contributors; or

     

    (e)         
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 (e);
or

     

    (f)         
the sale
represented by such Account is to an Account Debtor located outside the United
States, unless the sale is on letter of credit or acceptance terms reasonably
acceptable to the Administrative Agent, in its sole discretion, exercised
reasonably and in good faith, and (i) such letter of credit names the
Administrative Agent as beneficiary for the benefit of the Secured Parties or
(ii) the issuer of such letter of credit has consented to the assignment of the
proceeds thereof to the Administrative Agent; or

     

    (g)         
the sale
to such Account Debtor on such Account is on a bill-and-hold, guaranteed sale,
cash-on-delivery, sale-and-return, sale-on-approval or consignment basis or
other terms by reason of which the payment by such Account Debtor is or may be
conditional, provided
that with respect to any Accounts which are bill-and-hold, if the relevant
Account Debtor has delivered to the relevant Borrowing Base Contributor a letter
(or other agreement) pursuant to which such Account Debtor accepts title and
risk of loss with respect to the goods or services which are the subject of such
Accounts (and such Borrowing Base Contributor has delivered a true and complete
copy of such letter to the Administrative Agent) prior to the delivery of such
goods or services by such Borrowing Base Contributor to such Account Debtor,
then the bill-and-hold Accounts of such Account Debtor shall not be deemed
ineligible pursuant to this clause (g); or

     

    
      
        
        

      

      
        13

        
          

        

      

      
        
        

      

       

    

    (h)         
such
Account is (i) a bonded Account or (ii) subject to a Lien in favor of any Person
other than the Administrative Agent for the benefit of the Secured Parties 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

     

    (i)         
such
Account 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)         
the
Account Debtor on such Account 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)         
the
Account Debtor on such Account 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)         
such
Account or any portion thereof 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)         such
Account 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; provided that with respect to
any such Account for which all of the goods sold or used or services rendered
have been delivered or performed, as the case may be, and a final invoice upon
completion of all performance under such contract has been sent to the Account
Debtor, such Account shall not be deemed to be ineligible pursuant to this clause (m); or

     

    (n)         
such
Account 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)         
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 (a) above;
or

     

    (p)         
the sale
represented by such Account is denominated in a currency other than Dollars;
or

     

    (q)         
such
Account is not evidenced by an invoice or other writing or electronic record in
form acceptable to the Administrative Agent, in its sole discretion, exercised
reasonably and in good faith; or

     

    
      
        
        

      

      
        14

        
          

        

      

      
        
        

      

       

    

    (r)         
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 Receivables of all Borrowing Base Contributors at
such time, but only to the extent of such excess; or

     

    (t)         
the
Administrative Agent, in accordance with its customary criteria, determines, in
its sole discretion, exercised reasonably and in good faith, that such Account
might not be paid or is otherwise ineligible.

     

    Notwithstanding
the foregoing, any Account which is secured by a letter of credit issued by an
Eligible Assignee pertaining to the contract under which such Account arose and
as to which either (i) such letter of credit names the Administrative Agent as
beneficiary for the benefit of the Secured Parties or (ii) the issuer of such
letter of credit has consented to the assignment of the proceeds thereof to the
Administrative Agent, shall constitute an Eligible Receivable.

     

    “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 representation or
warranty contained in any Loan Document has been breached, (d) that are not, in
the Administrative Agent’s sole discretion, exercised reasonably and in good
faith, obsolete or unmerchantable and (e) that the Administrative Agent deems to
be Eligible Trucks, based on such credit and collateral considerations as the
Administrative Agent may, in its sole discretion, exercised reasonably and in
good faith, deem appropriate.  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.

     

    “Entitlement Holder” has the
meaning given to such term in the UCC.

     

    “Entitlement Order” has the
meaning given to such term in the UCC.

     

    “Environmental Laws” means all
applicable Requirements of Law now or hereafter in effect and as amended or
supplemented from time to time, relating to pollution or the regulation and
protection of human or animal health, safety, the environment or natural
resources, including the Comprehensive Environmental Response, Compensation, and
Liability Act of 1980, as amended (42 U.S.C. § 9601 et seq.); the Hazardous
Material Transportation Act, as amended (49 U.S.C. § 5101 et seq.); the Federal
Insecticide, Fungicide, and Rodenticide Act, as amended (7 U.S.C. § 136 et seq.); the Resource
Conservation and Recovery Act, as amended (42 U.S.C. § 6901 et seq.); the Toxic Substance
Control Act, as amended (15 U.S.C. § 2601 et seq.); the Clean Air Act,
as amended (42 U.S.C. § 7401 et seq.); the Federal Water
Pollution Control Act, as amended (33 U.S.C. § 1251 et seq.); the Occupational
Safety and Health Act, as amended (29 U.S.C. § 651 et seq.); the Safe Drinking
Water Act, as amended (42 U.S.C. § 300f et seq.); and each of their
state and local counterparts or equivalents and any transfer of ownership
notification or approval statute, including the Industrial Site Recovery Act
(N.J. Stat. Ann. § 13:1K-6 et
seq.); and including such applicable Requirements of Law requiring the
reclamation of mining sites.

     

    
      
        
        

      

      
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    “Environmental Liabilities and
Costs” means, with respect to any Person, all liabilities, obligations,
responsibilities, Remedial Actions, losses, damages, punitive damages,
consequential damages, treble damages, costs and expenses (including all
reasonable fees, disbursements and expenses of counsel, experts and consultants
and costs of investigation and feasibility studies), fines, penalties, sanctions
and interest (a) incurred as a result of any claim or demand by any other
Person, whether based in contract, tort, implied or express warranty, strict
liability, criminal or civil statute and arising under or relating to any
Environmental Law, including all those (i) relating to any Permit, order or
agreement with any Governmental Authority or other Person, (ii) relating to any
environmental, health or safety condition or to any Release or threatened
Release or (iii) resulting from the past, present or future operations of, or
ownership of property by, such Person or any of its Subsidiaries or (b)
otherwise relating to Environmental Laws.

     

    “Environmental Lien” means any
Lien in favor of any Governmental Authority for Environmental Liabilities and
Costs.

     

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

     

    “Equity Issuance” means the
issuance or sale of any Stock by the Borrower or any Subsidiary of the Borrower
of Stock 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 United
States Employee Retirement Income Security Act of 1974.

     

    “ERISA Affiliate” means any
trade or business (whether or not incorporated) under common control or treated
as a single employer with the Borrower or any of its Subsidiaries within the
meaning of Section 414(b), (c), (m) or (o) of the Code.

     

    “ERISA Event” means (a) a
Reportable Event with respect to a Title IV Plan or a Multiemployer Plan, (b)
the withdrawal of the Borrower, any of its Subsidiaries or any ERISA Affiliate
from a Title IV Plan subject to Section 4063 of ERISA during a plan year in
which it was a substantial employer, as defined in Section 4001(a)(2) of
ERISA, (c) the complete or partial withdrawal of the Borrower, any of its
Subsidiaries or any ERISA Affiliate from any Multiemployer Plan, (d) notice that
a Multiemployer Plan is Insolvent, in Reorganization, or in “endangered” or
“critical” status (within the meaning of Section 432 of the Code or Section 305
of ERISA), (e) the filing of a notice of intent to terminate a Title IV Plan or
the treatment of a plan amendment as a termination under Section 4041 of
ERISA, (f) the institution of proceedings to terminate a Title IV Plan or
Multiemployer Plan by the PBGC, (g) any failure by any Title IV Plan to satisfy
the minimum funding standards (within the meaning of Sections 412 or 430 of the
Code or Section 302 of ERISA) applicable to such Title IV Plan, whether or not
waived, (h) the filing pursuant to Section 412(c) of the Code or Section 302(c)
of ERISA of an application for a waiver of the minimum funding standard with
respect to any Title IV Plan, (i) the failure of Borrower, any of its
Subsidiaries or any ERISA Affiliate to make by its due date a required
installment under Section 430(j) of the Code with respect to any Pension Plan or
any required contribution to a  Multiemployer Plan, (j) a
determination that any Title IV Plan is, or is expected to be, in “at risk”
status  (within the meaning of Section 430 of the Code or Section 303
of ERISA), (k) the imposition of a  lien under Section 412 of the
Code or Sections 302 or 4068 of ERISA on the Borrower or any of its
Subsidiaries or any ERISA Affiliate or (l) any other event or condition that
might reasonably be expected to constitute grounds under Section 4042 of
ERISA for the termination of, or the appointment of a trustee to administer, any
Title IV Plan or Multiemployer Plan or the imposition of any liability under
Title IV of ERISA, other than for PBGC premiums due but not delinquent under
Section 4007 of ERISA.

     

    “Eurodollar Borrowing” means a
borrowing consisting of Eurodollar Rate Loans.

     

    “Eurodollar Rate Loan” means
any Loan the rate of interest applicable to which is based upon the Adjusted
LIBO Rate.

     

    
      
        
        

      

      
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    “Event of Default” has the
meaning specified in Section 9.1.

    


    “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”) and (c)
property and assets excluded pursuant to the terms of the Pledge and Security
Agreement.

     

    “Excluded Deposit Account”
means any Deposit Account maintained by the Borrower or its Subsidiaries as to
which the criteria in the provisos to clause (z) of Section
7.13(a) shall be
satisfied.

     

    “Excluded Foreign Subsidiary”
means any Subsidiary that is not a Domestic Subsidiary in respect of which
either (a) the pledge of all of the Stock of such Subsidiary as Collateral to
secure payment of the Obligations or (b) the guaranteeing by such Subsidiary of
the Obligations, would, in the good faith judgment of the Borrower based on an
analysis reasonably satisfactory to the Administrative Agent, result in adverse
tax consequences to the Loan Parties and their Subsidiaries, taken as a
whole.

     

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

     

    “Excluded JV Assets” has the
meaning set forth in clause
(b) of the definition of “Excluded
Collateral”.

     

    “Excluded JV Equity” has the
meaning set forth in clause
(a) of the definition of “Excluded
Collateral”.

     

    “Excluded Stock” has the
meaning specified in the preamble to this Agreement.

     

    “Facility” means each of (a)
the Term Commitments and the Term Loans made thereunder (the “Term Facility”) and (b) the
Revolving Commitments and the Revolving Loans made thereunder (the “Revolving
Facility”).

     

    “Fair Market Value” means (a)
with respect to any asset or group of assets (other than a marketable Security)
at any date, the value of the consideration obtainable in a sale of such asset
at such date assuming a sale by a willing seller to a willing purchaser dealing
at arm’s length and arranged in an orderly manner over a reasonable period of
time having regard to the nature and characteristics of such asset, as
reasonably determined by the Board of Directors of the Borrower or, if such
asset shall have been the subject of a relatively contemporaneous appraisal by
an independent third party appraiser, the basic material assumptions underlying
which have not materially changed since its date, the value set forth in such
appraisal, provided
that the Board of Directors shall be permitted to consider the circumstances
existing at such time (including, without limitation, any relevant legal
compulsion, judicial proceeding or administrative order or the possibility
thereof) in determining such Fair Market Value in connection with such
transaction and (b) with respect to any marketable Security at any date, the
closing sale price of such Security on the Business Day next preceding such
date, as appearing in any published list of any national securities exchange or
the NASDAQ Stock Market or, if there is no such closing sale price of such
Security, the final price for the purchase of such Security at face value quoted
on such Business Day by a financial institution of recognized standing regularly
dealing in Securities of such type and selected by the Administrative
Agent.

     

    “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.

    


    
      
        
        

      

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

     

    “Fifteen Month Facility Extension
Option” has the meaning given to such term in Section 2.23.

     

    “Final Closing Date” means the
first date following the Final Order Entry Date that the conditions precedent
set forth in Section 3.1, Section 3.2 and Section 3.3 shall have been satisfied
or waived.

     

    “Final Order” means an order
of the Bankruptcy Court entered in the Cases, in substantially the form of the
Interim Order, with such modifications thereto as are reasonably satisfactory to
the Administrative Agent and the Requisite Lenders.

     

    “Final Order Entry Date” means
the date the Final Order is entered on the Bankruptcy Court’s docket in the
Cases.

     

    “Financial Asset” has the
meaning given to such term in the UCC.

     

    “Financial Statements” means
the financial statements of the Borrower and its Subsidiaries delivered in
accordance with Section 4.4 and Section
6.1.

     

    “Fiscal Quarter” means each of
the three month periods ending on March 31, June 30, September 30
and December 31.

     

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

     

    “Flood Hazard Property” means
each Mortgaged Property which is located in an area designated by the Federal
Emergency Management Agency (or any successor agency) as having special flood or
mudslide hazards.

     

    “Fund” means any Person (other
than a natural Person) that is or will be engaged in making, purchasing, holding
or otherwise investing in commercial loans and similar extensions of credit in
the ordinary course of its business.

     

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

     

    “General Intangible” has the
meaning given to such term in the UCC.

     

    “Governmental Authority” means
any nation, sovereign or government, any state or other political subdivision
thereof and any entity or authority exercising executive, legislative, judicial,
taxing, regulatory or administrative functions of or pertaining to government,
including any central bank or stock exchange.

     

    
      
        
        

      

      
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    “Guarantor” means each
Subsidiary of the Borrower, that is not an Excluded Foreign Subsidiary, that
guarantees any of the Obligations under Article XI.

     

    “Guaranty Obligation” means,
as applied to any Person, any direct or indirect liability, contingent or
otherwise, of such Person (the “guaranteeing person”) with
respect to any Indebtedness of another Person, if the purpose or intent of the
guaranteeing person is to provide assurance to the obligee of such Indebtedness
that such Indebtedness will be paid or discharged, that any agreement relating
thereto will be complied with, or that any holder of such Indebtedness will be
protected (in whole or in part) against loss in respect thereof, including (a)
the direct or indirect guaranty, endorsement (other than for collection or
deposit in the ordinary course of business), co making, discounting with
recourse or sale with recourse by such Person of Indebtedness of another Person
and (b) any liability of such Person for Indebtedness of another Person through
any agreement (contingent or otherwise) (i) to purchase, repurchase or otherwise
acquire such Indebtedness or any security therefor or to provide funds for the
payment or discharge of such Indebtedness (whether in the form of a loan,
advance, stock purchase, capital contribution or otherwise), (ii) to maintain
the solvency or any balance sheet item, level of income or financial condition
of another Person, (iii) to make take or pay or similar payments, if required,
regardless of non performance by any other party or parties to an agreement,
(iv) to purchase, sell or lease (as lessor or lessee) property, or to purchase
or sell services, primarily for the purpose of enabling the debtor to make
payment of such Indebtedness or to assure the holder of such Indebtedness
against loss or (v) to supply funds to, or in any other manner invest in, such
other Person (including to pay for property or services irrespective of whether
such property is received or such services are rendered), if in the case of any
agreement described under clause (b)(i), (ii), (iii), (iv)
or (v) above the
primary purpose or intent thereof is to provide assurance that Indebtedness of
another Person will be paid or discharged, that any agreement relating thereto
will be complied with or that any holder of such Indebtedness will be protected
(in whole or in part) against loss in respect thereof.  The amount of
any Guaranty Obligation 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 Guaranty Obligation is made and (b) the
maximum amount for which such guaranteeing person may be liable pursuant to the
terms of the instrument embodying such Guaranty Obligation, 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 Guaranty
Obligation shall be such guaranteeing person’s maximum reasonably anticipated
liability in respect thereof as determined by the Borrower in good
faith.

     

    “Hedging Contracts” means all
Interest Rate Contracts, foreign exchange contracts, credit derivatives,
currency swap or option agreements, forward contracts, commodity swap, purchase
or option agreements, other commodity price hedging arrangements and all other
similar agreements or arrangements designed to alter the risks of any Person
arising from fluctuations in interest rates, currency values or commodity
prices.

     

    “Hedging Creditor” means the
Administrative Agent, any Lender or any Affiliate of any of them from time to
time party to one or more Hedging Contracts (regardless of whether these or
similar services were provided prior to the Closing Date by the Administrative
Agent, any Lender or any Affiliate of any of them, but only so long as such
Lender is a Lender hereunder) permitted hereunder with a Loan
Party.

     

    
      
        
        

      

      
        19

        
          

        

      

      
        
        

      

       

    

    “Indebtedness” of any Person
means without duplication (a) all indebtedness of such Person for borrowed
money, (b) all obligations of such Person evidenced by notes, bonds, debentures
or similar instruments or that bear interest, (c) all reimbursement and all
obligations with respect to letters of credit, bankers’ acceptances, surety
bonds and performance bonds, whether or not matured, (d) all indebtedness for
the deferred purchase price of property or services, other than trade payables
incurred in the ordinary course of business, prepaid 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, (e) all indebtedness of such
Person created or arising under any conditional sale or other title retention
agreement with respect to property acquired by such Person (even though the
rights and remedies of the seller or lender under such agreement in the event of
default are limited to repossession or sale of such property), (f) all Capital
Lease Obligations of such Person and the present value of future rental payments
under all synthetic leases, (g) all Guaranty Obligations of such Person, (h) all
obligations of such Person to purchase, redeem, retire, defease or otherwise
acquire for value any Stock or Stock Equivalents (other than for other Stock or
Stock Equivalents that do not constitute Disqualified Stock) of such Person
prior to the Scheduled Termination Date, valued, in the case of redeemable
preferred stock, at the greater of its voluntary liquidation preference and its
involuntary liquidation preference plus accrued and unpaid dividends, (i) all
net payments that such Person would have to make in the event of an early
termination on the date Indebtedness of such Person is being determined in
respect of Hedging Contracts of such Person and (j) all Indebtedness of the type
referred to above secured by (or for which the holder of such Indebtedness has
an existing right, contingent or otherwise, to be secured by) any Lien upon or
in property (including Accounts and General Intangibles) owned by such Person,
even though such Person has not assumed or become liable for the payment of such
Indebtedness.

     

    “Indemnitee” has the meaning
specified in Section 13.2(b).

     

    “Initial Cash Flow Forecast”
has the meaning specified in Section 3.1(o).

     

    “Insolvent” means, with
respect to a Multiemployer Plan, the condition that such Plan is insolvent
within the meaning of Section 4245 of ERISA.

     

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

     

    “Interest Expense” means, for
any Person for any period, Consolidated total interest expense of such Person
and its Subsidiaries for such period and including, in any event, net costs
under Interest Rate Contracts for such period.

     

    “Interest Payment Date” means
as to any CBFR Loan or Eurodollar Rate Loan, the first Business Day of each
calendar month and the Revolving Termination Date for Revolving Loans and the
Term Termination Date for Term Loans.

     

    “Interest Period” means as to
any Eurodollar Rate Loan, (a) initially, the period commencing on the borrowing
or conversion date, as the case may be, with respect to such Eurodollar Rate
Loan and ending one, two, three or six months thereafter, as selected by the
Borrower in its Notice of Borrowing or notice of conversion, as the case may be,
given with respect thereto and (b) thereafter, each period commencing on the
last day of the next preceding Interest Period applicable to such Eurodollar
Rate Loan and ending one, two, three or six months thereafter, as selected by
the Borrower by irrevocable notice to the Administrative Agent not later than
11:00 A.M., New York City time, on the date that is three Business Days prior to
the last day of the then current Interest Period with respect thereto; provided that all of the
foregoing provisions relating to Interest Periods in respect of Eurodollar Rate
Loans are subject to the following:

     

    (i)           
 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 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;

     

    (ii)            the
Borrower may not select an Interest Period under a particular Facility that
would extend beyond the Revolving Termination Date or Term Termination
Date;

     

    
      
        
        

      

      
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    (iii)          any
Interest Period 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;

     

    (iv)         
the
Borrower may not select any Interest Period in respect of Loans having an
aggregate principal amount of less than $1,000,000; and

     

    (v)          
there
shall be outstanding at any one time no more than four (4) Interest Periods in
the aggregate.

     

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

     

    “Interim Order” means an order
of the Bankruptcy Court entered in the Cases granting interim approval of the
transactions involving the Debtors contemplated by this Agreement and the other
Loan Documents and granting the Liens on the Collateral and the Superpriority
Claims described herein in favor of the Administrative Agent and the Lenders,
substantially in the form of Exhibit C hereto, and
otherwise in form and substance reasonably satisfactory to the Administrative
Agent and the Requisite Lenders.

     

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

     

    “Investment” means, with
respect to any Person, (a) any purchase or other acquisition by such Person of
(i) any Security issued by, (ii) a beneficial interest in any Security issued
by, or (iii) any other equity ownership interest in, any other Person, (b) any
purchase by such Person of all or a significant part of the assets of a business
conducted by any other Person, or all or substantially all of the assets
constituting the business of a division, branch or other unit operation of any
other Person, (c) any loan, advance (other than deposits with financial
institutions available for withdrawal on demand, prepaid expenses, accounts
receivable and similar items made or incurred in the ordinary course of
business) or capital contribution by such Person to any other Person, including
all Indebtedness of any other Person to such Person arising from a sale of
property by such Person other than in the ordinary course of its business and
(d) any Guaranty Obligation incurred by such Person.

     

    “IRS” means the Internal
Revenue Service of the United States or any successor thereto.

     

    “Issue” means, with respect to
any Letter of Credit, to issue, extend the expiry of, renew or increase the
maximum face amount (including by deleting or reducing any scheduled decrease in
such maximum face amount) of, such Letter of Credit.  The terms “Issued” and “Issuance” shall have a
corresponding meaning.

     

    “Issuer” means each Lender or
Affiliate of a Lender that is listed on the signature pages hereof as an “Issuer” or (b) hereafter
becomes an Issuer pursuant to the terms of Section 2.3(i).

     

    “JPMorgan” means JPMorgan
Chase Bank, N.A.

     

    “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) by such Person, including, without limitation, any
quarries.

     

    
      
        
        

      

      
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    “Leases” means, with respect
to any Person, all of those leasehold estates in real property of such Person,
as lessee, as such may be amended, supplemented or otherwise modified from time
to time.

     

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

     

    “Letter of Credit” means any
letter of credit Issued pursuant to Section 2.3.

     

    “Letter of Credit
Disbursement” means a payment made by the Issuer pursuant to a Letter of
Credit.

     

    “Letter of Credit Obligations”
means, at any time, the aggregate of all liabilities at such time of the
Borrower to all Issuers with respect to Letters of Credit, whether or not any
such liability is contingent, including, without duplication, the sum of (a) the
Reimbursement Obligations at such time and (b) the Letter of Credit Undrawn
Amounts at such time.

     

    “Letter of Credit Sublimit”
means $30,000,000.

     

    “Letter of Credit Undrawn
Amounts” means, at any time, the aggregate undrawn face amount of all
Letters of Credit outstanding at such time.

     

    “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.  Notwithstanding the
foregoing, with respect to the Term Loans only, in no event shall the LIBO Rate
be less than 2.0% per annum.

    


    “Lien” means any mortgage,
deed of trust, pledge, hypothecation, assignment, charge, deposit arrangement,
encumbrance, lien (statutory or other), security interest or preference,
priority or other security agreement or preferential arrangement of any kind or
nature whatsoever intended to assure payment of any Indebtedness or the
performance of any other obligation, including any conditional sale or other
title retention agreement, the interest of a lessor under a Capital Lease and
any financing lease having substantially the same economic effect as any of the
foregoing, and the filing of any financing statement under the UCC or comparable
law of any jurisdiction naming the owner of the asset to which such Lien relates
as debtor.

     

    “Loan” means the Term Loans
and the Revolving Loans.

     

    “Loan Documents” means,
collectively, this Agreement, the Orders, the Promissory Notes (if any), the
Collateral Documents and each certificate, agreement or document executed by a
Responsible Officer of a Loan Party and delivered to the Administrative Agent or
any Lender in connection with or pursuant to any of the foregoing.

     

    
      
        
        

      

      
        22

        
          

        

      

      
        
        

      

       

    

    “Loan Party” means each of the
Borrower, each Guarantor and each other Subsidiary of the Borrower that executes
and delivers a Loan Document.

     

    “Majority Facility Lenders”
means with respect to any Facility, the holders of more than 50% of the
aggregate unpaid principal amount of the Term Loans or the Revolving
Outstandings, as the case may be, outstanding under such Facility (or, in the
case of the Revolving Facility, prior to any termination of the Revolving
Commitments, the holders of more than 50% of the Revolving
Commitments).

     

    “Material Adverse Change”
means a material adverse change in any of (a) the condition (financial or
otherwise), business, performance, prospects, operations or properties of the
Borrower and its Subsidiaries, taken as a whole (other than (i) any events
leading up to the filing of the Cases disclosed to the Lenders and (ii) those
events which customarily occur following the commencement of a proceeding under
Chapter 11 of the Bankruptcy Code and other events ancillary thereto), (b) the
ability of the Borrower and the Guarantors, taken as a whole, to perform their
respective obligations under the Loan Documents or (c) the rights and remedies
of the Administrative Agent, the Lenders or the Issuers to enforce the Loan
Documents.

     

    “Material Adverse Effect”
means an effect that results in or causes, or could reasonably be expected to
result in or cause, a Material Adverse Change.

     

    “Maximum Credit” means, at any
time, the lesser of (a) (i) the Revolving Commitments in effect at such time and
(ii) the Borrowing Base at such time minus (b) the aggregate
amount of any Availability Reserve in effect at such time.

     

    “Merrill Lynch Account” has
the meaning specified in Section 7.13(f).

     

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

     

    “Mortgagee’s Title Insurance
Policy” has the meaning specified in Section 3.1(s).

     

    “Mortgaged Property” means
each parcel of Real Property subject to the Lien of a Mortgage pursuant to the
terms of this Agreement.

     

    “Mortgages” means each of the
mortgages and deeds of trust made by any Loan Party in favor of, or for the
benefit of, the Administrative Agent for the benefit of the Lenders, in a form
reasonably acceptable to the Administrative Agent.

     

    “Multiemployer Plan” means a
multiemployer plan, as defined in Section 4001(a)(3) of ERISA, to which the
Borrower, any of its Subsidiaries or any ERISA Affiliate has any obligation or
liability, contingent or otherwise.

     

    “Net Cash Proceeds” means
proceeds received by the Borrower or any of its Subsidiaries after the Closing
Date in cash or Cash Equivalents from any (a) Asset Sale (other than an Asset
Sale permitted under Section 8.4(a), Section 8.4(b), Section 8.4(c), Section
8.4(d), Section 8.4(e), Section 8.4(f), Section 8.4(h), Section 8.4(i) or
Section 8.4(j)) net of (i) the reasonable cash costs and expenses of sale,
assignment or other disposition (including a reasonable reserve for liabilities
retained by the Borrower or such Subsidiary in connection with such Asset Sale;
it being understood that “Net
Cash Proceeds” shall include, without limitation, any reversal of a
reserve described in this clause (i) or if such liabilities have not been
satisfied in cash and such reserve not reversed within the longer of (x) 365
days after such Asset Sale and (y) the applicable contractual limitations
period, the amount of such reserve), (ii) taxes paid or reasonably estimated to
be payable as a result thereof and (iii) any amount required to be paid or
prepaid on Indebtedness (other than the Obligations) secured by the assets
subject to such Asset Sale; provided, however, that evidence of
clauses (i), (ii)
and (iii) above
is provided to the Administrative Agent in form and substance reasonably
satisfactory to it, (b) Property Loss Event or (c)(i) Equity Issuance (other
than any such issuance of Stock (other than Disqualified Stock) of the Borrower
occurring in the ordinary course of business to any director, member of the
management or employee of the Borrower or its Subsidiaries) or (ii) any Debt
Issuance, in each case net of brokers’ and advisors’ fees and other costs
incurred in connection with such transaction; provided, however, that in the case of
this clause (c),
evidence of such costs is provided to the Administrative Agent in form and
substance reasonably satisfactory to it.

     

    
      
         


      

      
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    “Non-Consenting Lender” has
the meaning specified in Section 13.1(c).

     

    “Non-Filer” means any
Affiliate of the Borrower that is not a Debtor.

     

    “Non-Funding Lender” has the
meaning specified in Section 2.2(e).

     

    “Non-Specified Real Property”
shall mean the Real Property owned by the Loan Parties with a net book value
less than $100,000, as listed on Schedule III.

     

    “Non-U.S. Lender” means each
Lender or Issuer (or the Administrative Agent) that is a Non-U.S.
Person.

     

    “Non-U.S. Person” means any
Person that is not a Domestic Person.

     

    “Notes” means those 8-3/8%
Senior Subordinated Notes due 2014 issued pursuant to the Notes
Indenture.

     

    “Notes Forbearance Agreements”
means individually and collectively, each of (a) that certain Restructuring and
Lock-Up Agreement dated as of April 28, 2010 whereby the holders of each of the
Notes and the Additional Notes that are party to such Restructuring and Lock-Up
Agreement agreed to forbear from taking any action in respect of the guarantees
provided by the Specified Non-Filers and (b) that certain Restructuring and
Lock-Up Agreement dated as of April 28, 2010 whereby Deutsche Bank Securities
Inc. in its capacity as a holder of Notes and Additional Notes agreed to forbear
from taking any action in respect of the guarantees provided by the Specified
Non-Filers.

     

    “Notes Indenture” means that
certain Indenture dated as of March 31, 2004 by and between the Borrower,
as issuer, and Wells Fargo Bank, National Association, as trustee, governing the
Notes and the Additional Notes (or any notes which are freely transferable
issued in exchange for the Notes or Additional Notes but having substantially
the same terms and conditions).

     

    “Notice of Borrowing” has the
meaning specified in Section 2.2(a).

     

    “Obligations” means the Loans,
the Letter of Credit Obligations and all other amounts, obligations, covenants
and duties owing by the Borrower or any Guarantor to the Administrative Agent,
any Lender, any Issuer, any Affiliate of any of them or any Indemnitee, of every
type and description (whether by reason of an extension of credit, opening or
amendment of a letter of credit or payment of any draft drawn or other payment
thereunder, loan, guaranty, indemnification, foreign exchange or currency swap
transaction, interest rate hedging transaction or otherwise), present or future,
arising under this Agreement, any other Loan Document, any Cash Management
Document and any Hedging Contract, whether direct or indirect (including those
acquired by assignment), absolute or contingent, due or to become due, now
existing or hereafter arising and however acquired and whether or not evidenced
by any note, guaranty or other instrument or for the payment of money, including
all letter of credit, cash management and other fees, interest, charges,
expenses, attorneys’ fees and disbursements, Cash Management Obligations and
other sums chargeable to the Borrower or any Guarantor under this Agreement, any
other Loan Document, any Cash Management Document, any Hedging Contract and all
obligations of the Borrower under any Loan Document to provide cash collateral
for any Letter of Credit Obligation and, with respect to any Obligations of a
Non-Filer, interest accruing after the filing of any petition in bankruptcy, or
the commencement of any insolvency, reorganization or like proceeding, relating
to such Non-Filer.


    
      
         


      

      
        24

        
          

        

      

      
         


      

    

     

    “Orderly Liquidation Value Inventory
Rate” shall mean the orderly liquidation value (net of reasonable 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.

     

    “Orderly Liquidation Value Of
Eligible Trucks” means, as of any date of determination, the result of
the following formula:

     

    (a) -
(b)

     

    where

     

    (a)
represents the sum of {(x) + (y) – (z)};

     

    (b)
represents the product of (i) the number represented by clause (a) above and (ii) a
percentage representing the reasonable costs and expenses expected to be
incurred in connection with a liquidation of the Eligible Trucks (such
percentage to be determined by reference to the most recent Appraisal referred
to in clause (x)
below);

     

    (x)
represents, with respect to the Eligible Trucks of the Borrowing Base
Contributors which have been appraised pursuant to an Appraisal and are then
owned by the Borrowing Base Contributors, the orderly liquidation value of such
Eligible Trucks as determined by the most recent Appraisal of such Trucks
received by the Administrative Agent;

     

    (y)
represents, with respect to Eligible Trucks which have been acquired by the
Borrowing Base Contributors during any fiscal month occurring after the most
recent Appraisal referred to in clause (x) above (but only
until such time as the next Appraisal occurs) and are then owned by the
Borrowing Base Contributors, the cost of such Trucks (without deduction for
depreciation, which shall be governed by clause (z) below);
and

     

    (z)
represents the cumulative book depreciation (determined in accordance with the
depreciation methods used by the Borrowing Base Contributors with respect to
Trucks on the Closing Date) attributable to all Eligible Trucks of the Borrowing
Base Contributors (it being understood that such depreciation shall be an
estimated amount as of the first two months of each Fiscal Quarter and shall be
adjusted to an actual number as of the end of each Fiscal Quarter).

     

    “Orders” means the collective
reference to the Interim Order and the Final Order.

     

    “Participant” has the meaning
specified in Section 13.3(f).

     

     “Patriot Act” means the USA
Patriot Act of 2001 (31 U.S.C. §5318 et. seq.).


    
      
         


      

      
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    “PBGC” means the Pension
Benefit Guaranty Corporation or any successor thereto.

     

    “Permit” means any permit,
approval, authorization, license, variance or permission required from a
Governmental Authority under an applicable Requirement of Law.

     

    “Permitted Utility Deposit
Account” means any Deposit Accounts held by the Company or any of its
Subsidiaries that is funded in connection with a deposit provided to any utility
company as a result of the Cases, provided that the aggregate balance on deposit
in all Permitted Utility Deposit Accounts shall not at any time exceed
$500,000.

     

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

     

    “Petition Date” has the
meaning specified in the preamble to this Agreement.

     

    “Pledge and Security
Agreement” means an agreement, in substantially the form of Exhibit D, executed by
the Borrower and each Guarantor.

     

    “Pledged Debt Instruments” has
the meaning specified in the Pledge and Security Agreement.

     

    “Pledged Stock” has the
meaning specified in the Pledge and Security Agreement.

     

    “Prepetition Credit Agreement”
means the Amended and Restated Credit Agreement, dated as of June 30, 2006,
among the US Borrower, the lenders party thereto and the agents party thereto,
as amended, supplemented or otherwise modified.

     

    “Prime Rate” means the rate of
interest per annum publicly announced from time to time by JPMorgan 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.

    


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

     

    “Professional Fees” has the
meaning specified in Section 2.19.

     

    “Promissory Note” means the collective
reference to any promissory note evidencing Loans.

     

    “Property Loss Event” means
(a) any loss of or damage to property of the Borrower or any of its Subsidiaries
that results in the receipt by such Person of Net Cash Proceeds of insurance in
an amount in excess of $500,000 (individually or in the aggregate) or (b) any
taking of property of the Borrower or any of its Subsidiaries that results in
the receipt by such Person of Net Cash Proceeds in an amount in excess of
$500,000 (individually or in the aggregate).

     

    “Protective Advances” means
all expenses, disbursements and advances incurred by the Administrative Agent
pursuant to the Loan Documents that the Administrative Agent, in its sole
discretion, exercised reasonably and in good faith, deems necessary or desirable
to preserve or protect the Collateral or any portion thereof or to enhance the
likelihood, or maximize the amount, of repayment of the Obligations, provided that in no event
shall the aggregate amount of Protective Advances outstanding at any time be
greater than 5% of the lesser of (a) the Revolving Commitment and (b) the
Borrowing Base.

     

    
      
         


      

      
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    “Purchasing Lender” has the
meaning specified in Section 13.6(b).

     

    “Real Property” of any Person
means the 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
specified in Section 13.3(d).

     

    “Reimbursement Obligations”
means, as and when matured, the obligation of the Borrower to pay, on the date
payment is made or scheduled to be made to the beneficiary under each such
Letter of Credit and in the currency drawn, all amounts of each drafts and other
requests for payments drawn under Letters of Credit, and all other matured
reimbursement or repayment obligations of the Borrower to any Issuer with
respect to amounts drawn under Letters of Credit.

     

    “Related Documents” means the
Notes Indenture and each other document and instrument executed with respect
thereto.

     

    “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.

    “Release” means, with respect
to any Person, any release, spill, emission, leaking, pumping, injection,
deposit, disposal, discharge, dispersal, leaching or migration, in each case, of
any Contaminant into the indoor or outdoor environment or into or out of any
property owned, leased or operated by such Person, including the movement of
Contaminants through or in the air, soil, surface water, ground water or
property.

     

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

     

    “Reorganization” means, with
respect to any Multiemployer Plan, the condition that such plan is in
reorganization within the meaning of Section 4241 of ERISA.

     

    “Reportable Event” means any
“reportable event,” as defined in Section 4043 of ERISA or the regulations
issued thereunder, other than those events as to which the 30-day notice period
referred to in Section 4043 of ERISA has been waived.

    


    “Report” means (a) reports
prepared by the Administrative Agent or another Person showing the results of
appraisals, field examinations or audits pertaining to the Borrower's assets
from information furnished by or on behalf of the Borrower, after the
Administrative Agent has exercised its rights of inspection pursuant to this
Agreement, (b) Compliance Certificates, (c) each financial report delivered to
the Administrative Agent pursuant to Section 6.1 and (d) the Borrowing Base
Certificates, in each case, which Reports may be distributed to the Lenders by
the Administrative Agent.


    
      
         


      

      
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    “Requirement of Law” means,
with respect to any Person, the common law and all federal, state, local and
foreign laws, treaties, rules and regulations, orders, judgments, decrees and
other determinations of, concessions, grants, franchises, licenses and other
Contractual Obligations with, any Governmental Authority or arbitrator,
applicable to or binding upon such Person or any of its property or to which
such Person or any of its property is subject.

    


    “Requisite Lenders” at any
time, (a) the holders of more than 50% of the Aggregate Exposure of all Lenders
and (b) the Administrative Agent.

     

    “Responsible Officer” means,
with respect to any Person, any of the principal executive officers, managing
members or general partners of such Person but, in any event, with respect to
financial matters, the chief financial officer, treasurer or controller of such
Person.

     

    “Restricted Payment” means (a)
any dividend, distribution or any other payment whether direct or indirect, on
account of any Stock or Stock Equivalent of the Borrower or any of its
Subsidiaries now or hereafter outstanding and (b) any redemption, retirement,
sinking fund or similar payment, purchase or other acquisition for value, direct
or indirect, of any Stock or Stock Equivalent of the Borrower or any of its
Subsidiaries now or hereafter outstanding other than for Stock or Stock
Equivalents which do not constitute Disqualified Stock.

     

    “Revolving Borrowing” means a
borrowing consisting of Revolving Loans made on the same day by the Revolving
Lenders ratably according to their respective Revolving Percentage.

     

    “Revolving Commitment” means,
with respect to each Revolving Lender, the commitment of such Revolving Lender
to make Revolving Loans and acquire interests in other Revolving Outstandings in
the aggregate principal amount outstanding not to exceed the amount set forth
opposite such Revolving Lender’s name on Schedule I(B) under the
caption “Revolving
Commitment” and as such amount may be reduced pursuant to this
Agreement.  The initial aggregate amount of the Revolving Commitments
is $35,000,000.

     

    “Revolving Facility” has the
meaning specified in the definition of “Facility”.

     

    “Revolving Interim Availability Amount”
has the meaning given to such term in Section 3.1(c).

     

    “Revolving Lender” means each
Lender that has a Revolving Commitment or that holds a Revolving
Loan.

     

    “Revolving Loan” has the
meaning specified in Section 2.1(a).

     

    “Revolving Outstandings”
means, at any particular time, the sum of (a) the principal amount of the
Revolving Loans outstanding at such time and (b) the Letter of Credit
Obligations outstanding at such time.

     

    “Revolving Percentage” means,
with respect to any Revolving Lender, the percentage obtained by dividing (a)
the Revolving Commitment of such Revolving Lender by (b) the aggregate Revolving
Commitments of all Revolving Lenders (or, at any time on or after the Revolving
Termination Date, the percentage obtained by dividing the aggregate outstanding
principal balance of the Revolving Outstandings owing to such Revolving Lender
by the aggregate outstanding principal balance of the Revolving Outstandings
owing to all Revolving Lenders).


    
      
         


      

      
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    “Revolving Termination Date”
shall mean the earliest of (a) the Scheduled Termination Date, (b) the date of
termination of all of the Revolving Commitments pursuant to Section 2.4, (c) 45 days (or such later
date as the Requisite Lenders may agree) after entry of the Interim Order if the
Final Order has not been entered prior thereto, (d) the date any of the Cases
shall be dismissed or converted to a case under Chapter 7 of the Bankruptcy
Code, (e) the Effective Date and (f) the date on which the Obligations become
due and payable pursuant to Section 9.2.

     

    “Revolving Unused Commitment Fee” has
the meaning specified in Section 2.11(a).

     

    “S&P” means Standard &
Poor’s Rating Services.

     

    “Sale and Leaseback
Transaction” means any arrangement entered into by the Borrower or any
Subsidiary of the Borrower with any Person providing for the leasing to the
Borrower or such Subsidiary of any capital asset which has been or is to be sold
or transferred by the Borrower or such Subsidiary to such Person or to any other
Person to whom funds have been or are to be advanced by such Person on the
security of such capital asset or rental obligations of the Borrower or such
Subsidiary.

     

    “Sarbanes-Oxley Act” means the
United States Sarbanes-Oxley Act of 2002.

     

    “Scheduled Termination Date”
means May 3, 2011, provided, that upon the
effectiveness of the Fifteen Month Facility Extension Option, the Scheduled
Termination Date shall be August 3, 2011.

     

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

     

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

     

    “Securities Account Control
Agreement” has the meaning specified in the Pledge and Security
Agreement.

     

    “Securities Intermediary” has
the meaning given to such term in the UCC.

     

    “Security” means any Stock,
Stock Equivalent, voting trust certificate, bond, debenture, note or other
evidence of Indebtedness, whether secured, unsecured, convertible or
subordinated, or any certificate of interest, share or participation in, any
temporary or interim certificate for the purchase or acquisition of, or any
right to subscribe to, purchase or acquire, any of the foregoing, but shall not
include any evidence of the Obligations.

     

    “Selling Lender” has the
meaning specified in Section 13.6(b).

     

    “Specified Financial
Covenants” means collectively the covenants set forth in Section 5.1 and
Section 5.2.

     

    “Specified Letter of Credit”
means that certain Letter of Credit originally issued on April 6, 2010, by
JPMorgan, in its capacity as Issuer under the Prepetition Credit Agreement, to
Bank of America, N.A., as beneficiary, in the face amount of
$3,500,000.

     

    “Specified Non-Filers” means
individually and collectively, each of Kurtz Gravel Company, BWB, Inc. of
Michigan, USC Michigan, Inc., Superior Holdings, Inc. and Builders' Redi-Mix,
LLC.

     

    
      
         


      

      
        29

        
          

        

      

      
         


      

    


    “Specified Real Property”
shall mean the Real Property owned by the Loan Parties with a net book value
equal to or great than $100,000, as listed on Schedule IV.

     

    “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.

    


    “Stock” means shares of
capital stock (whether denominated as common stock or preferred stock),
beneficial, partnership or membership interests, participations or other
equivalents (regardless of how designated) of or in a corporation, partnership,
limited liability company or equivalent entity, whether voting or
nonvoting.

     

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

     

    “Subordinated Indebtedness”
means unsecured Indebtedness of the Borrower or any Subsidiary owing to any
Person that is not a Debtor that is subordinated to the payment in full of the
Obligations on subordination terms reasonably satisfactory to the Administrative
Agent.

     

    “Subsidiary” means, with
respect to any Person, any corporation, partnership, limited liability company
or other business entity of which an aggregate of 50% or more of the outstanding
Voting Stock is, at the time, directly or indirectly, owned or controlled by
such Person or one or more Subsidiaries of such Person; provided, that the Excluded
Joint Venture shall not be a “Subsidiary”, with respect to
any Person.

     

    “Substitute Institution” has
the meaning specified in Section 2.17.

     

    “Substitution Notice” has the
meaning specified in Section 2.17.

     

    “Supermajority Lenders” means
at any time, (a) the holders of more than 75% of the Aggregate Exposure of all
Lenders and (b) the Administrative Agent.

     

    “Superpriority Claim” means a
claim against any Debtor in any of the Cases which is an administrative expense
claim having priority over any or all administrative expenses of the kind
specified in Section 503(b) or 507(b) of the Bankruptcy Code, including a claim
pursuant to Section 364(c)(1) of the Bankruptcy Code.

     

    “Tax Affiliate” means, with
respect to any Person, (a) any Subsidiary of such Person and (b) any Affiliate
of such Person with which such Person files or is eligible to file consolidated,
combined or unitary tax returns.

     

    “Tax Return” has the meaning
specified in Section 4.7(a).


    
      
         


      

      
        30

        
          

        

      

      
         


      

    

    


    “Taxes” has the meaning
specified in Section 2.16(a).

    


    “Term Borrowing” means a borrowing
consisting of Term Loans made on the same day by the Term Lenders ratably
according to their respective Term Percentage.

     

    “Term Commitments” means, with
respect to each Term Lender, the commitment of such Term Lender to make Term
Loans in the aggregate principal amount outstanding not to exceed the amount set
forth opposite such Term Lender’s name on Schedule I(A) under the
caption “Term
Commitment” and as such amount may be reduced pursuant to this
Agreement.  The initial aggregate amount of the Term Commitments is
$45,000,000.

    


    “Term Facility” has the
meaning specified in the definition of “Facility”.

     

    “Term Lender” means each
Lender that has a Term Commitment or that holds a Term Loan.

     

    “Term Loans” has the meaning
specified in Section 2.1(b).

    


    “Term Percentage” as to any
Term Lender at any time, the percentage which such Lender’s Term Commitment then
constitutes of the aggregate Term Commitments (or, at any time after the Closing
Date, the percentage which the aggregate principal amount of such Lender’s Term
Loans then outstanding constitutes of the aggregate principal amount of the Term
Loans then outstanding).

    


    “Term Termination Date” shall
mean the earliest of (a) the Scheduled Termination Date, (b) the date of
termination of all of the Term Commitments pursuant to Section 2.4, (c) 45 days (or such later
date as the Requisite Lenders may agree) after entry of the Interim Order if the
Final Order has not been entered prior thereto, (d) the date any of the Cases
shall be dismissed or converted to a case under Chapter 7 of the Bankruptcy
Code, (e) the Effective Date and (f) the date on which the Obligations become
due and payable pursuant to Section 9.2.

    


    “Termination Date” means the
later to occur of (i) the Revolving Termination Date and (ii) the Term
Termination Date.

    


    “Test Period” means on any
date, the period beginning on May 1, 2010 and ending on such date (taken as one
accounting period).

    


    “Title IV Plan” means an
employee pension benefit (as defined in Section 3(2) of ERISA) plan (other than
a Multiemployer Plan) covered by Title IV of ERISA or Section 412 of the Code or
Section 302 of ERISA and to which the Borrower any of its Subsidiaries or any
ERISA Affiliate has any obligation or liability, contingent or
otherwise.

     

    “Trigger Notice” has the
meaning specified in Section 2.19.

     

    “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.

     

    “UCC” has the meaning
specified in the Pledge and Security Agreement.

     

    
      
         


      

      
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    “Unfunded Pension Liability”
means, with respect to the Borrower or any of its Subsidiaries at any time, the
sum of (a) the amount, if any, by which the present value of all accrued
benefits under each Title IV Plan (other than any Title IV Plan subject to
Section 4063 of ERISA) exceeds the fair market value of all assets of such
Title IV Plan allocable to such benefits in accordance with Title IV of ERISA,
as determined as of the most recent valuation date for such Title IV Plan using
the actuarial assumptions in effect under such Title IV Plan, (b) the aggregate
amount of Withdrawal Liability that could be assessed under Section 4063
with respect to each Title IV Plan subject to such section, separately
calculated for each such Title IV 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.

     

    “U.S. Lender” means each
Lender or Issuer (or the Administrative Agent) that is a Domestic
Person.

     

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

     

    “Wholly-Owned Subsidiary” of
any Person means any Subsidiary of such Person, all of the Stock of which (other
than director’s qualifying shares, local residents or other holders, in each
case, as may be required by law) is owned by such Person, either directly or
indirectly through one or more Wholly-Owned Subsidiaries of such
Person.

     

    “Withdrawal Liability” means,
with respect to the Borrower or any of its Subsidiaries at any time, the
aggregate liability incurred (whether or not assessed) with respect to all
Multiemployer Plans pursuant to Section 4201 of ERISA or for increases in
contributions required to be made pursuant to Section 4243 of
ERISA.

     

    Section
1.2          Computation of
Time Periods

     

    In this
Agreement, in the computation of periods of time from a specified date to a
later specified date, the word “from” means “from and including” and the
words “to” and “until” each mean “to but excluding” and the
word “through” means
“to and
including.”

     

    Section
1.3          Accounting Terms
and Principles

     

    (a)           Except
as set forth below, all accounting terms not specifically defined herein shall
be construed in conformity with GAAP and all accounting determinations required
to be made pursuant hereto (including for purpose of measuring compliance with
Article V  shall, unless expressly otherwise provided herein, be made
in conformity with GAAP.  Notwithstanding any other provision
contained herein, all terms of an accounting or financial nature used herein
shall be construed, and all computations of amounts and ratios referred to
herein shall be made, without giving effect to any election under Statement of
Financial Accounting Standards 159 (or any other Financial Accounting Standard
having a similar result or effect) to value any Indebtedness or other
liabilities of the Borrower or any Subsidiary at “fair value”, as defined
therein.

     

    (b)           If
any change in the accounting principles used in the preparation of the most
recent Financial Statements referred to in Section 6.1 is hereafter required
or permitted by the rules, regulations, pronouncements and opinions of the
Financial Accounting Standards Board or the American Institute of Certified
Public Accountants (or any successors thereto) and such change is adopted by the
Borrower with the agreement of the Borrower’s Accountants and results in a
change in any of the calculations required by Article V that would not have
resulted had such accounting change not occurred, the parties hereto agree to
enter into negotiations in order to amend such provisions so as to equitably
reflect such change such that the criteria for evaluating compliance with such
covenants by the Borrower shall be the same after such change as if such change
had not been made; provided,
however, that no change in GAAP that would affect a calculation that
measures compliance with any provision of the Loan Documents shall be given
effect until such provisions are amended to reflect such changes in
GAAP.


    
      
         


      

      
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    (c)           For
purposes of making all financial calculations to determine compliance with
Article V, 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 with a Fair Market Value in
excess of $200,000 that have been acquired or disposed of by the Borrower or any
of its Subsidiaries after the first day of the applicable period of
determination and prior to the end of such period, as determined in good faith
by the Borrower on a pro forma basis.

     

    Section
1.4          Certain
Terms

     

    (a)           The
terms “herein,” “hereof”, “hereto” and “hereunder” and similar terms
refer to this Agreement as a whole and not to any particular Article, Section,
subsection or clause in, this Agreement.

     

    (b)           Unless
otherwise expressly indicated herein, (i) references in this Agreement to an
Exhibit, Schedule, Article, Section, clause or sub-clause refer to the
appropriate Exhibit or Schedule to, or Article, Section, clause or
sub-clause in this Agreement and (ii) the words “above” and “below”, when following a
reference to a clause or a sub-clause of any Loan Document, refer to a clause or
sub-clause within, respectively, the same Section or clause.

     

    (c)           Each
agreement defined in this Article I shall include all
appendices, exhibits and schedules thereto.  Unless the prior written
consent of the Requisite Lenders is required hereunder for an amendment,
restatement, supplement, modification, extension, renewal or replacement to any
such agreement and such consent is not obtained, references in this Agreement to
such agreement shall be to such agreement as so amended, restated, supplemented
or modified, extended, renewed or replaced.

     

    (d)           References
in this Agreement to any statute shall be to such statute as amended or modified
from time to time and to any successor legislation thereto, in each case as in
effect at the time any such reference is operative.

     

    (e)           The
term “including” when
used in any Loan Document means “including without limitation”
except when used in the computation of time periods.

     

    (f)           The
terms “Lender,” “Issuer” and “Administrative Agent”
include, without limitation, their respective successors.

     

    (g)               All
references to “knowledge” of any Loan Party means the actual knowledge of a
Responsible Officer.

     

    (h)           The
words “asset” and “property” shall be construed as having the same meaning and
effect and to refer to any and all tangible and intangible assets and
properties, including, without limitation, cash, securities, accounts and
contract rights.

     

    (i)           Any
reference herein to any Person shall be construed to include such Person’s
permitted successors and assigns.

     

    
      
         


      

      
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    ARTICLE
II

    The
Facilities

     

    Section
2.1          The
Commitments

     

    (a)           On
the terms and subject to the conditions contained in this Agreement and the
Orders, each Revolving Lender severally agrees to make loans in Dollars (each a
“Revolving Loan”) to
the Borrower from time to time on any Business Day during the period from the
Closing Date until the Revolving Termination Date in an aggregate principal
amount at any time outstanding for all such loans by such Revolving Lender not
to exceed such Revolving Lender’s Revolving Commitment; provided, however, that at no
time shall any Revolving Lender be obligated to make a Revolving Loan in excess
of such Revolving Lender’s Revolving Percentage of the Available Credit, provided, further, that (i) during the
period from the Closing Date until the Final Closing Date, the aggregate
principal amount of Revolving Loans shall at no time exceed the Revolving
Interim Availability Amount and (ii) at any time following the Final Closing
Date, the aggregate principal amount of Revolving Loans shall at no time exceed
that aggregate principal amount of Revolving Loans permitted to be made to the
Borrower pursuant to the Orders.  Within the limits of the Revolving
Commitment of each Revolving Lender, amounts of Revolving Loans repaid may be
reborrowed under this Section 2.1(a).

     

    (b)           On
the terms and subject to the conditions contained in this Agreement and the
Orders, each Term Lender severally agrees to make a term loan (a “Term Loan”) in Dollars to the
Borrower on the Closing Date in an amount not to exceed such Lender’s Term
Commitment.  Amounts borrowed under this Section 2.1(a) and repaid or
prepaid may not be reborrowed.

     

    Section
2.2          Borrowing
Procedures

     

    (a)           Each
Borrowing shall be made on irrevocable notice given by the Borrower to the
Administrative Agent (i) not later than 2:00 p.m. (New York time) the date of
the proposed Borrowing, in the case of a Borrowing of CBFR Loans, and (ii) not
later than 10:00 a.m. (New York time) 3 Business Days, in the case of a
Borrowing of Eurodollar Rate Loans, prior to the date of the proposed
Borrowing.  Each such notice shall be in substantially the form of
Exhibit B (a
“Notice of Borrowing”),
specifying (A) the date of such proposed Borrowing, (B) the aggregate amount of
such proposed Borrowing, (C) whether any portion of the proposed Borrowing will
be of CBFR Loans or Eurodollar Rate Loans, (D) whether the Loan will be a
Revolving Loan or a Term Loan, (E) the initial Interest Period or Periods for
any such Eurodollar Rate Loans and (F) for Revolving Borrowings, the Available
Credit (after giving effect to such proposed Revolving
Borrowing).  The Loans shall be made as CBFR Loans unless, subject to
Section 2.14, the Notice of Borrowing specifies that all or a portion thereof
shall be Eurodollar Rate Loans, provided that all Borrowings
made on the Closing Date and the Final Closing Date shall be made initially as
CBFR Borrowings but may be converted into Eurodollar Borrowings in accordance
with Section 2.10.

     

    (b)           Each
Revolving Lender shall, before 11:00 a.m. (New York time) on the date of the
proposed Borrowing, make available to the Administrative Agent at its address
referred to in Section 13.7, in immediately available funds, such Lender’s
Revolving Percentage of such proposed Borrowing.  Upon fulfillment (or
due waiver in accordance with Section 13.1) (i) on the Closing Date, of
the applicable conditions set forth in Section 3.1, (ii) on the Final Closing
Date, of the applicable conditions set forth in Section 3.2 and (iii) at any
time (including the Closing Date and Final Closing Date), of the applicable
conditions set forth in Section 3.3, as the case may be, and after the
Administrative Agent’s receipt of such funds, the Administrative Agent shall
make such funds available to the Borrower.

     

    
      
         


      

      
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    (c)           Each
Term Lender shall, before 11:00 a.m. (New York time) on the date of the proposed
Borrowing, make available to the Administrative Agent at its address referred to
in Section 13.7, in immediately available funds, such Lender’s Term Percentage
of such proposed Borrowing.  Upon fulfillment (or due waiver in
accordance with Section 13.1) (i) on the Closing Date, of
the applicable conditions set forth in Section 3.1 and (ii) on the Final Closing
Date, of the applicable conditions set forth in Section 3.2, as the case may be,
and after the Administrative Agent’s receipt of such funds, the Administrative
Agent shall make such funds available to the Borrower.

     

    (d)           Unless
the Administrative Agent shall have received notice from a Lender prior to the
date of any proposed Borrowing that such Lender will not make available to the
Administrative Agent such Lender’s Revolving Percentage or Term Percentage, as
applicable, of such Borrowing (or any portion thereof), the Administrative Agent
may assume that such Lender has made such Revolving Percentage or Term
Percentage, as applicable, available to the Administrative Agent on the date of
such Borrowing in accordance with this Section 2.2 and the Administrative
Agent may, in reliance upon such assumption, make available to the Borrower on
such date a corresponding amount.  If and to the extent that such
Lender shall not have so made such Revolving Percentage or Term Percentage, as
applicable, available to the Administrative Agent, such Lender and the Borrower
severally agree to repay to the Administrative Agent forthwith on written demand
such corresponding amount together with interest thereon, for each day from the
date such amount is made available to the Borrower until the date such amount is
repaid to the Administrative Agent, at (i) in the case of the Borrower, the
interest rate applicable at the time to the Loans comprising such Borrowing and
(ii) in the case of such Lender, the Federal Funds Effective Rate for the first
Business Day and thereafter at the interest rate applicable at the time to the
Loans comprising such Borrowing.  If such Lender shall repay to the
Administrative Agent such corresponding amount, such corresponding amount so
repaid shall constitute such Lender’s Loan as part of such Borrowing for
purposes of this Agreement.  If the Borrower shall repay to the
Administrative Agent such corresponding amount, such payment shall not relieve
such Lender of any obligation it may have hereunder to the
Borrower.

     

    (e)           The
failure of any Lender to make on the date specified any Loan or any payment
required by it (such Lender being a “Non-Funding Lender”),
including any payment in respect of its participation in Letter of Credit
Obligations, shall not relieve any other Lender of its obligations to make such
Loan or payment on such date but no such other Lender shall be responsible for
the failure of any Non-Funding Lender to make a Loan or payment required under
this Agreement.

     

    Section
2.3          Letters of
Credit

     

    (a)           Subject
to the terms and conditions set forth herein, the Borrower may request the
Issuance of Letters of Credit for its own account, in a form reasonably
acceptable to the Administrative Agent and the Issuer, at any time and from time
to time during the Availability Period.  Each Letter of Credit shall
(i) be denominated in Dollars and (ii) expire no later than the earlier of (x)
the first anniversary of its date of issuance and (y) the date that is five
Business Days prior to the Revolving Termination Date.  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 Issuer relating to any Letter of Credit, the terms and conditions of this
Agreement shall control in all respects.


    
      
         


      

      
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    (b)           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 Issuer) to the Issuer and the Administrative Agent
(prior to 9:00 a.m., New York City time, at least three Business Days prior to
the requested date of issuance, amendment, renewal or extension) 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 Section 2.3(c)), the amount of such Letter of Credit, the name
and address of the beneficiary thereof and such other information as shall be
reasonably necessary to prepare, amend, renew or extend such Letter of
Credit.  If requested by the Issuer, the Borrower also shall submit a
letter of credit application on the Issuer’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 Letter of Credit Obligations would not exceed the
Letter of Credit Sublimit or (ii) the aggregate amount of Revolving Outstandings
would not exceed the Maximum Credit

     

    (c)           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 Revolving Termination Date.

     

    (d)           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
Issuer or the Revolving Lenders, the Issuer hereby grants to each Revolving
Lender, and each Revolving Lender hereby acquires from the Issuer, a
participation in such Letter of Credit equal to such Lender's Revolving
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 Issuer, such Lender's Revolving
Percentage of each Letter of Credit Disbursement made by the Issuer and not
reimbursed by the Borrower on the date due as provided in paragraph Section
2.3(e), 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 Revolving Commitments, and that each such payment shall be
made without any offset, abatement, withholding or reduction
whatsoever.

     

    (e)           If
the Issuer shall make any Letter of Credit Disbursement in respect of a Letter
of Credit, the Borrower shall reimburse such Letter of Credit Disbursement by
paying to the Administrative Agent an amount equal to such Letter of Credit
Disbursement not later than 10:00 a.m., New York City time, on the Business Day
immediately following the day that the Borrower receives written notice of such
payment.  If the Borrower fails to make such payment when due, the
Administrative Agent shall notify each Revolving Lender of the applicable Letter
of Credit Disbursement, the payment then due from the Borrower in respect
thereof and such Lender's Revolving Percentage thereof.  Promptly
following receipt of such notice, each Revolving Lender shall pay to the
Administrative Agent its Revolving Percentage of the payment then due from the
Borrower, in the same manner as provided in Section 2.2(b) with respect to
Revolving Loans made by such Revolving Lender (and Section
2.2(b)  shall apply, mutatis mutandis, to the payment obligations of
the Revolving Lenders), and the Administrative Agent shall promptly pay to the
Issuer 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 Issuer or, to the extent that
Revolving Lenders have made payments pursuant to this paragraph to reimburse the
Issuer, then to such Revolving Lenders and the Issuer as their interests may
appear.  Any payment made by a Revolving Lender pursuant to this
paragraph to reimburse the Issuer for any Letter of Credit Disbursement shall
not constitute a Loan and shall not relieve the Borrower of its obligation to
reimburse such Letter of Credit Disbursement.

     

    
      
         


      

      
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    (f)           The
Borrower's obligation to reimburse Letter of Credit Disbursements as provided in
Section 2.3(e) 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 Issuer 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 2.3, 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 Issuer, 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 Issuer; provided that this assumption
is not intended to, and shall not, preclude the Borrower from pursuing such
rights and remedies as it may have against the beneficiary at law or under any
other agreement, provided further that the
foregoing shall not be construed to excuse the Issuer 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
such Issuer’s failure to exercise the standard of care set forth above 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 wilful misconduct on the part
of the Issuer (as finally determined by a court of competent jurisdiction), the
Issuer 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 Issuer 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.

     

    (g)           The
Issuer shall, promptly following its receipt thereof, examine all documents
purporting to represent a demand for payment under a Letter of
Credit.  The Issuer shall promptly notify the Administrative Agent and
the Borrower by telephone (confirmed by facsimile) of such demand for payment
and whether the Issuer has made or will make a Letter of Credit 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 Issuer and the
Revolving Lenders with respect to any such Letter of Credit
Disbursement.

     

    
      
         


      

      
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    (h)           If
the Issuer shall make any Letter of Credit Disbursement, then, unless the
Borrower shall reimburse such Letter of Credit 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 Letter of Credit Disbursement is made
to but excluding the date that the Borrower reimburses such Letter of Credit
Disbursement, at the rate per annum equal to the Applicable Margin then in
effect with respect to Eurodollar Rate Loans under the Revolving Facility; provided that, if the
Borrower fails to reimburse such Letter of Credit Disbursement when due pursuant
to Section 2.3(e), then Section 2.9(b) shall apply.  Interest accrued
pursuant to this paragraph shall be for the account of the Issuer, except that
interest accrued on and after the date of payment by any Revolving Lender
pursuant to Section 2.3(e) to reimburse the Issuer shall be for the account of
such Lender to the extent of such payment.

     

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

     

    (j)           Notwithstanding
anything to the contrary herein, on and after the Closing Date, each letter of
credit set forth on Schedule
2.3 will constitute a Letter of Credit, and the issuer of such letter of
credit shall constitute an Issuer, under this Agreement and for purposes hereof
will be deemed to have been issued on the Closing Date, provided that the Specified
Letter of Credit shall not be considered a Letter of Credit Obligation for the
purposes of (i) the definition of “Revolving Outstandings” and (ii) Section
2.11(a).  The Borrower agrees that it shall pay such other fees in
respect of the Specified Letter of Credit as may be mutually agreed to by the
Borrower and JPMorgan.

     

    Section
2.4          Reduction and
Termination of the Commitments

     

    The
Borrower may, upon at least 5 Business Days’ prior notice to the Administrative
Agent, terminate in whole or reduce in part ratably the unused portions of the
respective Revolving Commitments of the Revolving Lenders.  All
outstanding Revolving Commitments shall terminate on the Scheduled Termination
Date.  Upon the Revolving Commitments being terminated, the Revolving
Loans having been paid and the Borrower providing cash collateral for the Letter
of Credit Obligations in the manner set forth in Section 9.3 in an amount equal to
105%, the Borrower may, upon at least 5 Business Days’ prior notice to the
Administrative Agent, terminate in whole or reduce in part ratably the unused
portions of the respective Term Commitments of the Term
Lenders.


    
      
         


      

      
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    Section
2.5          Repayment of
Loans

     

    The
Borrower promises to repay the entire unpaid principal amount of the Loans on
the Termination Date.

     

    Section
2.6          Evidence of
Debt

     

    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)
substantially in the forms attached hereto as Exhibit H-1 and Exhibit H-2, as
applicable.  Thereafter, the Loans evidenced by such Promissory Note
and interest thereon shall at all times (including after assignment pursuant to
Section 13.3) 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
2.7          Optional
Prepayments

     

    The
Borrower may voluntarily prepay the outstanding principal amount of the
Revolving Loans in whole or in part (without premium or penalty, except as set
forth herein).  Upon the Revolving Commitments being terminated, the
Revolving Loans having been paid and full and the Borrower providing cash
collateral for the Letter of Credit Obligations in the manner set forth in
Section 9.3 in an
amount equal to 105%, the Borrower may prepay the outstanding principal amount
of the Term Loans in whole or in part.  Prepayments under this Section
2.7 may only be made upon notice delivered to the Administrative Agent no later
than 11:00 a.m., New York City time, three Business Days prior thereto, in the
case of Eurodollar Rate Loans, and no later than 11:00 a.m., New York City time,
one Business Day prior thereto, in the case of CBFR Loans, which notice shall
specify the date and amount of prepayment and whether the prepayment is of
Eurodollar Rate Loans or CBFR Loans.  If any prepayment of
any Eurodollar Rate Loan is made by the Borrower other than on the last day of
an Interest Period for such Loan, the Borrower shall also pay any amount owing
pursuant to Section 2.14(d).  Partial prepayments of Loans shall be in
an aggregate principal amount of $1,000,000 or a whole multiple thereof (or such
other amount that is equal to amount required to repay the Revolving Loans or
the Term Loans, as applicable, in full).

     

    Section
2.8          Mandatory
Prepayments

     

    (a)           Within
one Business Day of receipt by the Borrower or any of its Subsidiaries of Net
Cash Proceeds arising (i) from an Asset Sale, Property Loss Event, Debt Issuance
or Equity Issuance, the Borrower shall immediately prepay the Loans in an amount
equal to 100% of such Net Cash Proceeds, provided that in the case of any Asset
Sale or Property Loss Event, if the Borrower shall deliver to the Administrative
Agent a certificate of a Responsible Officer to the effect that the Loan Parties
intend to apply the Net Cash Proceeds from such event (or a portion thereof
specified in such certificate), within 150 days after receipt of such Net Cash
Proceeds, to acquire (or replace or rebuild) property (excluding Inventory) used
or useful in the business of the Loan Parties, and certifying that no Default or
Event of Default has occurred and is continuing, then no prepayment shall be
required pursuant to this paragraph in respect of the Net Cash Proceeds
specified in such certificate, provided however that to the extent
any such Net Cash Proceeds therefrom have not been so applied by the end of such
150 day period, at such time a prepayment shall be required in an amount equal
to such Net Cash Proceeds that have not been so applied.  Any such
mandatory prepayment shall be applied in accordance with clause (b)
below.  The Borrower shall also prepay the Loans to the extent
required by clause (c)
below.

     

    
      
         


      

      
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    (b)           Subject
to the provisions of Section 2.12(g), any prepayments made by the Borrower
required to be applied in accordance with this clause (b) shall be applied
as follows:  first, to repay the outstanding principal balance of the
Revolving Loans until such Revolving Loans shall have been repaid in full; and
then, to repay the outstanding principal balance of the Term Loans until such
Term Loans shall have been paid in full.  Repayments of Revolving
Loans required to be made pursuant to this clause (b) shall result in a
permanent reduction of the Revolving Commitments.  Repayments of Term
Loans required to be made pursuant to this clause (b) may not be
reborrowed.

     

    (c)           If
at any time, the aggregate principal amount of Revolving Outstandings exceeds
the Maximum Credit at such time, the Borrower shall forthwith prepay the
Revolving Loans then outstanding in an amount equal to such
excess.  If any such excess remains after repayment in full of the
aggregate outstanding Revolving Loans, the Borrower shall provide cash
collateral for the Letter of Credit Obligations in the manner set forth in
Section 9.3 in an
amount equal to 105% of such excess.  If any such excess remains after
repayment in full of the aggregate outstanding Revolving Loans and cash
collateralization of the Letters of Credit as provided in the preceding
sentence, the Borrower shall forthwith prepay the Term Loans then outstanding in
an amount equal to such excess.

     

    (d)           The
Borrower hereby irrevocably waives the right to direct the application of all
funds in the Cash Collateral Account and agrees that the Administrative Agent
shall, except as provided in Section 2.12(g) and clause (b) above, on each
Business Day apply payments in respect of any Obligations and all funds credited
to the Cash Collateral Account on such Business Day or the immediately preceding
Business Day (at the discretion of the Administrative Agent, whether or not
immediately available) as follows:  first, if such date is an
Interest Payment Date, to accrued but unpaid interest on the Revolving Loans,
ratably; second, to
repay the outstanding principal balance of the Revolving Loans until such
Revolving Loans shall have been repaid in full (without, for the avoidance of
doubt, a permanent reduction in the Revolving Commitments); third, to be held as cash
collateral for the Letter of Credit Obligations in the manner set forth in
Section 9.3 in an
amount equal to 105% of the aggregate Letter of Credit Undrawn Amounts; fourth, to any other
Obligation owing to the Revolving Lenders then due and payable; and then as
otherwise directed by the Borrower so long as such direction does not violate
the terms of this Agreement.  The Administrative Agent agrees so to
apply such funds and the Borrower consents to such application.  If
(i) following such application or (ii) after all Letters of Credit shall have
expired or be fully drawn and all Commitments shall have been terminated, there
are no Loans outstanding and no other Obligations that are then due and payable,
then the Administrative Agent shall cause any remaining funds in the Cash
Collateral Account to be paid at the written direction of the Borrower (or, in
the absence of such direction, to the Borrower or another Person lawfully
entitled thereto).

     

    Section
2.9          Interest

     

    (a)           All
Loans and the outstanding amount of all other Obligations (other than pursuant
to (i) Hedging Contracts, to the extent such Hedging Contracts provide for the
accrual of interest on unpaid obligations and (ii) Cash Management Obligations)
shall bear interest, in the case of Loans, on the unpaid principal amount
thereof from the date such Loans are made and, in the case of such other
Obligations, from the date such other Obligations are due and payable until, in
all cases, paid in full, except as otherwise provided in clause (b) below, as
follows:

     

    
      
         


      

      
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    (i)           if
a CBFR Loan or such other Obligation, at a rate per annum equal to the sum of
(A) the CB Floating Rate as in effect from time to time and (B) the Applicable
Margin; and

     

    (ii)          if
a Eurodollar Rate Loan, at a rate per annum equal to the sum of (A) the Adjusted
LIBO Rate determined for the applicable Interest Period and (B) the Applicable
Margin in effect from time to time during such Interest Period.

     

    (b)           Notwithstanding
the rates of interest specified in clause (a) above or elsewhere
herein, effective immediately upon the occurrence of an Event of Default and for
as long thereafter as such Event of Default shall be continuing, the principal
balance of all Loans and the amount of all other Obligations then due and
payable shall bear interest at a rate that is 2.0% percent per annum in excess
of the rate of interest applicable to such Loans or other Obligations from time
to time.  Such interest shall be payable on written
demand.

     

    (c)           Interest
shall be payable in arrears on each Interest Payment Date, provided that interest
accruing pursuant to paragraph (b) of this Section 2.9 shall be payable from
time to time on demand.

     

    Section
2.10        Conversion/Continuation
Option

     

    (a)           The
Borrower may elect from time to time to convert Eurodollar Rate Loans to CBFR
Loans by giving the Administrative Agent prior irrevocable notice of such
election no later than 11:00 a.m., New York City time, on the Business Day
preceding the proposed conversion date, provided that any such
conversion of Eurodollar Rate Loans may only be made on the last day of an
Interest Period with respect thereto.  The Borrower may elect from
time to time to convert CBFR Loans to Eurodollar Rate Loans by giving the
Administrative Agent prior irrevocable notice of such election no later than
11:00 A.M., New York City time, on the third Business Day preceding the proposed
conversion date (which notice shall specify the length of the initial Interest
Period therefor), provided that no CBFR Loan
under a particular Facility may be converted into a Eurodollar Rate Loan when
any Event of Default has occurred and is continuing and the Majority Facility
Lenders in respect of such Facility have determined in their reasonable
discretion not to permit such conversions.  Upon receipt of any such
notice the Administrative Agent shall promptly notify each relevant Lender
thereof.

     

    (b)           Any
Eurodollar Rate Loan may be continued as such upon the expiration of the then
current Interest Period with respect thereto by the Borrower giving irrevocable
notice to the Administrative Agent, in accordance with the applicable provisions
of the term “Interest Period” set forth in Section 1.1, of the length of the
next Interest Period to be applicable to such Loans, provided that no Eurodollar
Rate Loan under a particular Facility may be continued as such when any Event of
Default has occurred and is continuing and the Majority Facility Lenders in
respect of such Facility have determined in their reasonable discretion not to
permit such continuations, and provided, further, that if the Borrower
shall fail to give any required notice as described above in this paragraph or
if such continuation is not permitted pursuant to the preceding proviso such
Loans shall be automatically converted to CBFR Loans on the last day of such
then expiring Interest Period.  Upon receipt of any such notice the
Administrative Agent shall promptly notify each relevant Lender
thereof.

     

    
      
         


      

      
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    Section
2.11        Fees

     

    (a)           The
Borrower agrees to pay in immediately available Dollars to each Revolving Lender
a commitment fee on the actual daily amount by which the Revolving Commitment of
such Revolving Lender exceeds such Revolving Lender’s Revolving Percentage of
the sum of (i) the aggregate outstanding principal amount of Revolving Loans and
(ii) the outstanding amount of the aggregate Letter of Credit Obligations (the “
Revolving Unused Commitment Fee”) from
the Closing Date through the Revolving Termination Date at the Applicable Unused
Commitment Fee Rate, payable in arrears (x) on the first Business Day of each
calendar month, commencing on the first such Business Day following the Closing
Date and (y) on the Revolving Termination Date.

     

    (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, at the rate per annum equal to the Applicable Margin then in
effect with respect to Eurodollar Rate Loans under the Revolving Facility on the
average daily amount of such Lender's Letter of Credit Obligations during the
period from and including the Closing 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 Letter of Credit Obligations and
(ii) to the Issuer a fronting fee, which shall accrue at the rate of 0.20% per
annum on the average daily amount of Letter of Credit Undrawn Amounts during the
period from and including the Closing 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 Letter of Credit Obligations, as well as the Issuer’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
quarter shall be payable on the first Business Day of each January, April, July
and October following such last day, commencing on the first such date to occur
after the Closing 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 Revolving Commitments
terminate shall be payable on written demand.  Any other fees payable
to the Issuer pursuant to this paragraph shall be payable within 15 days after
written demand (including documentation reasonably supporting such
request).  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.

     

    Section
2.12        Payments and
Computations

     

    (a)           The
Borrower shall make each payment hereunder (including fees and expenses) not
later than noon (New York time) on the day when due, in the currency specified
herein (or, if no such currency is specified, in Dollars) to the Administrative
Agent at its address referred to in Section 13.7 in immediately
available funds without set-off or counterclaim.  The Administrative
Agent shall promptly thereafter cause to be distributed immediately available
funds relating to the payment of principal, interest or fees to the Lenders, in
accordance with the application of payments set forth in clause (f) or (g) below, as applicable;
provided, however, that
amounts payable pursuant to Section 2.14(b), Section 2.14(c), Section 2.15 or
Section 2.16, shall be paid only to the affected Lender or
Lenders.  Payments received by the Administrative Agent after 11:00
a.m. (New York time) shall be deemed to be received on the next Business
Day.

     

    (b)           All
interest and fees hereunder shall be computed on the basis of a year of 360
days, except that interest computed by reference to the CB Floating Rate at
times when the CB Floating Rate is based on the Prime 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.

     

    
      
         


      

      
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    (c)           Each
payment by a Borrower of any Loan, Reimbursement Obligation (including interest
or fees in respect thereof) and each reimbursement of various costs, expenses or
other Obligation shall be made in the currency in which such Loan was made, such
Letter of Credit issued or such cost, expense or other Obligation was
incurred.

     

    (d)           Whenever
any payment hereunder shall be stated to be due on a day other than a Business
Day, the due date for such payment shall be extended to the next succeeding
Business Day, and such extension of time shall in such case be included in the
computation of payment of interest or fees, as the case may be; provided, however, that if
such extension would cause payment of interest on or principal of any Eurodollar
Rate Loan to be made in the next calendar month, such payment shall be made on
the immediately preceding Business Day.  All repayments of any Loans
shall be applied as follows:  first, to repay such Loans outstanding
as CBFR Loans and then, to repay such Loans outstanding as Eurodollar Rate
Loans, with those Eurodollar Rate Loans having earlier expiring Eurodollar
Interest Periods being repaid prior to those having later expiring Eurodollar
Interest Periods.

     

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

     

    (f)           Except
for payments and other amounts received by the Administrative Agent and applied
in accordance with the provisions of clause (g) below (or required
to be applied in accordance with Section 2.8), all payments and any other
amounts received by the Administrative Agent from or for the benefit of the
Borrower shall be applied as follows:  first, to pay principal of,
and interest on, any portion of the Loans the Administrative Agent may have
advanced pursuant to the express provisions of this Agreement on behalf of any
Lender, for which the Administrative Agent has not then been reimbursed by such
Lender or the Borrower, second, to pay all other
Obligations then due and payable (without, for the avoidance of doubt, in the
case of any repayment of any Revolving Loan, a permanent reduction in the
Revolving Commitments) and third, as the Borrower so
designates.  Payments in respect of Revolving Loans received by the
Administrative Agent shall be distributed to each Revolving Lender in accordance
with such Revolving Lender’s Revolving Percentage; payments in respect of Term
Loans received by the Administrative Agent shall be distributed to each Term
Lender in accordance with such Term Lender’s Term Percentage and all payments of
fees and all other payments in respect of any other Obligation shall be
allocated among such of the Lenders and Issuers as are entitled thereto and, for
such payments allocated to the Lenders, in proportion to their respective
Aggregate Exposure Percentage.

     

    (g)           The
Borrower hereby irrevocably waives the right to direct the application of any
and all payments in respect of the Obligations and any proceeds of Collateral
after the occurrence and during the continuance of an Event of Default and
agrees that, notwithstanding the provisions of Section 2.8 and clause (f) above, the
Administrative Agent may, and, upon either (A) the written direction of the
Requisite Lenders or (B) the acceleration of the Obligations pursuant to Section
9.2 shall, apply
all payments in respect of any Obligations and all funds on deposit in any Cash
Collateral Account and all other proceeds of Collateral in the following
order:

     

    
      
         


      

      
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    (i)     
     first, to pay interest on and then
principal of any portion of the Revolving Loans that the Administrative Agent
may have advanced on behalf of any Lender for which the Administrative Agent has
not then been reimbursed by such Lender or the Borrower;

     

    (ii)          second, to pay Obligations in
respect of any expense reimbursements or indemnities then due to the
Administrative Agent;

     

    (iii)         third, to pay Obligations in
respect of any expense reimbursements or indemnities then due to the Lenders and
the Issuers;

     

    (iv)         fourth, to pay Obligations in
respect of any fees then due to the Administrative Agent, the Arranger, the
Lenders and the Issuers;

     

    (v)        
fifth, to pay interest then due
and payable in respect of the Revolving Loans and Reimbursement Obligations
(including interest that would have accrued but for a bankruptcy proceeding
involving the Borrower);

     

    (vi)       
sixth, to pay or prepay principal
amounts on the Revolving Loans and Reimbursement Obligations, and to provide
cash collateral for outstanding Letter of Credit Undrawn Amounts in the manner
described in Section 9.3, ratably to the aggregate principal amount of such
Revolving Loans, Reimbursement Obligations and Letter of Credit Undrawn
Amounts;

     

    (vii)       seventh,
to pay Obligations in respect of Cash Management Obligations and Hedging
Contracts in an aggregate amount not to exceed $2,500,000, ratably;

     

    (viii)      eighth, to pay interest then due
and payable in respect of the Term Loans (including interest that would have
accrued but for a bankruptcy proceeding involving the Borrower);

     

    (ix)        ninth, to pay or prepay principal
amounts on the Term Loans;

     

    (x)         tenth,
to pay all other Obligations in respect of Cash Management Obligations
and Hedging Contracts, ratably;

     

    (xi)        eleventh, to the ratable payment of
all other Obligations; and

     

    (xii)       twelfth, to the payment of the
surplus, if any, to the Borrower;

     

    provided, however, that if
sufficient funds are not available to fund all payments to be made in respect of
any Obligation described in any of clauses (i), (ii), (iii), (iv), (v),
(vi), (vii), (viii), (ix), (x) and (xi) above the available funds being
applied with respect to any such Obligation (unless otherwise specified in such
clause) shall be allocated to the payment of such Obligation ratably, based on
the proportion of the Administrative Agent’s and each Lender’s or Issuer’s
interest in the aggregate outstanding Obligations described in such clauses;
provided, however, that
payments that would otherwise be allocated to the Revolving Lenders shall be
allocated first to repay Protective Advances pro rata until such Protective
Advances are repaid in full and then to repay the Revolving Loans or to provide
cash collateral for outstanding Letters of Credit.  The order of
priority set forth in clauses
(i), (ii), (iii), (iv), (v), (vi), (vii), (viii), (ix), (x), (xi) and
(xii) above may at any time and from time to time be changed pursuant to
the terms of Section 13.1 without necessity of notice to or consent of or
approval by the Borrower, any Secured Party that is not a Lender or Issuer or by
any other Person that is not a Lender or Issuer.


    
      
         


      

      
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    (h)           At
the option of the Administrative Agent, (i) upon one Business Day prior written
notice to the Borrower, fees, expenses and other sums (other than principal), in
each case, then due and payable in respect of the Revolving Loans may be paid
from the proceeds of Revolving Loans and (ii) Reimbursement Obligations,
interest in respect of the Revolving Loans and Protective Advances may be paid
from the proceeds of Revolving Loans.  The Borrower hereby authorizes
the Revolving Lenders to make such Revolving Loans pursuant to Section
2.2(a) from time
to time in the amounts of any and all principal payable with respect to the
Reimbursement Obligations, interest, fees, expenses and other sums payable in
respect of the Revolving Loans and Protective Advances, and further authorizes
the Administrative Agent to give the Lenders notice of any Revolving Borrowing
with respect to such Revolving Loans and to distribute the proceeds of such
Revolving Loans to pay such amounts.  The Borrower agrees that all
such Revolving Loans so made shall be deemed to have been requested by it
(irrespective of the satisfaction of the conditions in Section 3.3, which
conditions the Revolving Lenders irrevocably waive) and directs that all
proceeds thereof shall be used to pay such amounts.

     

    Section
2.13        Alternate Rate of
Interest.

     

    If prior
to the commencement of any Interest Period for a Eurodollar
Borrowing:

     

    (a)           the
Administrative Agent 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 Requisite 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 or facsimile 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 Notice of Borrowing requests a Revolving Borrowing
for a Eurodollar Rate Loans, such Borrowing shall be made as an CBFR
Borrowing.

     

    Section
2.14        Special Provisions Governing
Eurodollar Rate Loans

     

    (a)           Determination of Interest
Rate

     

    The
Adjusted LIBO Rate for each Interest Period for Eurodollar Rate Loans shall be
determined by the Administrative Agent pursuant to the procedures set forth in
the definition of “Adjusted
LIBO Rate.”  The Administrative Agent’s determination shall be
presumed to be correct absent manifest error and shall be binding on the
Borrower.


    
      
         


      

      
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    (b)           Increased Costs

     

    If at any
time any Lender reasonably determines in good faith that the introduction of, or
any change in or in the interpretation of, any law, treaty or governmental rule,
regulation or order (other than any change by way of imposition or increase of
reserve requirements included in determining the Adjusted LIBO Rate) or the
compliance by such Lender with any guideline, request or directive from any
central bank or other Governmental Authority (whether or not having the force of
law) in each case after the Closing Date, shall have the effect of increasing
the cost to such Lender of agreeing to make or making, funding or maintaining
any Eurodollar Rate Loans, then the Borrower shall upon 10 days of written
demand (including documentation reasonably supporting such request) by such
Lender (with a copy of such written demand to the Administrative Agent), pay to
the Administrative Agent for the account of such Lender additional amounts
sufficient to compensate such Lender for such increased cost.  A
certificate as to the amount of such increased cost, submitted to the Borrower
and the Administrative Agent by such Lender, shall be conclusive and binding for
all purposes, absent manifest error.

     

    (c)           Illegality

     

    Notwithstanding
any other provision of this Agreement, if any Lender reasonably determines in
good faith that the introduction of, or any change in or in the interpretation
of, any law, treaty or governmental rule, regulation or order in each case after
the Closing Date shall make it unlawful, or any central bank or other
Governmental Authority shall assert that it is unlawful, for any Lender to make
Eurodollar Rate Loans or to continue to fund or maintain Eurodollar Rate Loans,
then, on written notice thereof and written demand therefor by such Lender to
the Borrower through the Administrative Agent, (i) the obligation of such Lender
to make or to continue Eurodollar Rate Loans and to convert CBFR Loans into
Eurodollar Rate Loans shall be suspended, and each such Lender shall make a CBFR
Loan as part of any requested Borrowing of Eurodollar Rate Loans and (ii) if the
affected Eurodollar Rate Loans are then outstanding, the Borrower shall
immediately convert each such Loan into a CBFR Loan.  If, at any time
after a Lender gives notice under this clause (d), such Lender determines that
it may lawfully make Eurodollar Rate Loans, such Lender shall promptly give
notice of that determination to the Borrower and the Administrative Agent, and
the Administrative Agent shall promptly transmit the notice to each other
Lender.  The Borrower’s right to request, and such Lender’s
obligation, if any, to make Eurodollar Rate Loans shall thereupon be
restored.

     

    (d)           Breakage Costs

     

    In
addition to all amounts required to be paid by the Borrower pursuant to Section
2.9, the Borrower shall compensate each Lender, within 10 days’ of written
demand (including documentation reasonably supporting such request), for all
losses, expenses and liabilities (including any loss or expense incurred by
reason of the liquidation or reemployment of deposits or other funds acquired by
such Lender to fund or maintain such Lender’s Eurodollar Rate Loans to the
Borrower or that would have been incurred if the Lender had match-funded such
Loans in such manner, but excluding any loss of the Applicable Margin on the
relevant Loans or other consequential damages) that such Lender may sustain (i)
if for any reason (other than solely by reason of such Lender being a
Non-Funding Lender) a proposed Borrowing, conversion into or continuation of
Eurodollar Rate Loans does not occur on a date specified therefor in a Borrowing
notice or notice given in connection with a conversion or continuation of a Loan
given by the Borrower or in a telephonic request by it for Revolving Borrowing
or conversion or continuation or a successive Interest Period does not commence
after notice therefor is given pursuant to Section 2.10, (ii) if for any reason
any Eurodollar Rate Loan is prepaid (including mandatorily pursuant to Section
2.8) on a date that is not the last day of the applicable Interest Period, (iii)
as a consequence of a required conversion of a Eurodollar Rate Loan to a CBFR
Loan as a result of any of the events indicated in clause (d) above or (iv) as a
consequence of any failure by the Borrower to repay Eurodollar Rate Loans when
required by the terms hereof.  The Lender making demand for such
compensation shall deliver to the Borrower concurrently with such demand a
written statement as to such losses, expenses and liabilities, and this
statement shall be conclusive as to the amount of compensation due to such
Lender, absent manifest error.


    
      
         


      

      
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    The
agreements contained in this Section 2.14 shall survive the
termination of this Agreement and the payment of all amounts payable hereunder;
provided, however, that
the Borrower shall not be required to compensate a Lender pursuant to clauses (b), (c) and (d) of this Section 2.14 for any such increased
cost or reduction incurred more than 180 days prior to the date that such Lender
demands, or notifies the Borrower of its intention to demand, compensation
therefor; provided,
that, if the circumstance giving rise to such increased cost or reduction is
retroactive, then such 180-day period referred to above shall be extended to
include the period of retroactive effect thereof.

     

    Section
2.15        Capital
Adequacy

     

    If at any
time any Lender determines that (a) the adoption of, or any change in or in the
interpretation of, any law, treaty or governmental rule, regulation or order
after the Closing Date regarding capital adequacy, (b) compliance with any such
law, treaty, rule, regulation or order enacted after the Closing Date or (c)
compliance with any guideline or request or directive from any central bank or
other Governmental Authority (whether or not having the force of law) enacted
after the Closing Date shall have the effect of reducing the rate of return on
such Lender’s (or any corporation controlling such Lender’s) capital as a
consequence of its obligations hereunder or under or in respect of any Letter of
Credit to a level below that which such Lender or such corporation could have
achieved but for such adoption, change, compliance or interpretation, then, upon
demand from time to time by such Lender (with a copy of such demand to the
Administrative Agent), the Borrower shall pay to the Administrative Agent for
the account of such Lender, from time to time as specified by such Lender,
additional amounts sufficient to compensate such Lender for such
reduction.  A certificate as to such amounts submitted to the Borrower
and the Administrative Agent by such Lender shall be conclusive and binding for
all purposes absent manifest error.

     

    The
agreements contained in this Section 2.15 shall survive the
termination of this Agreement and the payment of all amounts payable hereunder;
provided, however, that
the Borrower shall not be required to compensate a Lender pursuant to this
Section 2.15 for
any such increased cost or reduction incurred more than 180 days prior to the
date that such Lender demands, or notifies the Borrower of its intention to
demand, compensation therefor; provided, that, if the
circumstance giving rise to such increased cost or reduction is retroactive,
then such 180-day period referred to above shall be extended to include the
period of retroactive effect thereof.


    
      
         


      

      
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    Section
2.16        Taxes

     

    (a)           Except
as otherwise provided in this Section 2.16, any and all payments by or on behalf
of any Loan Party under each Loan Document shall be made free and clear of and
without deduction or withholding for or on account of any and all present or
future taxes, levies, imposts, deductions, charges or withholdings, and all
liabilities with respect thereto (including any interest, additions to tax or
penalties applicable thereto), excluding in the case of the Administrative
Agent, each Lender or each Issuer, taxes measured by its net income and
franchise taxes (imposed in lieu of net income taxes) imposed on it as a result
of a present or former connection between the Administrative Agent, such Lender
or such Issuer (as the case may be) and the jurisdiction of the Governmental
Authority imposing such tax or any taxing authority thereof or therein, other
than any such connection arising solely from the Administrative Agent, such
Lender or such Issuer having executed, delivered or performed its obligations or
received a payment under, or enforced, any Loan Document (all such non-excluded
taxes, levies, imposts, deductions, charges, withholdings and liabilities being
hereinafter referred to as “Taxes”).  If any
Taxes shall be required by law to be deducted from or in respect of any sum
payable under any Loan Document to any Lender, any Issuer or the Administrative
Agent, as determined in good faith by the applicable withholding agent, (i) the
sum payable by the applicable Loan Party shall be increased as may be necessary
so that, after making all required deductions (including deductions applicable
to additional sums payable under this Section 2.16), such Lender, such Issuer or
the Administrative Agent (as the case may be) receives an amount equal to the
sum it would have received had no such deductions been made, (ii) the relevant
Loan Party shall make such deductions, (iii) the relevant Loan Party shall pay
the full amount deducted to the relevant Governmental Authority in accordance
with applicable law and (iv) the relevant Loan Party shall deliver to the
Administrative Agent evidence of such payment in accordance with Section
2.16(d) below;
provided, however, that the Borrower
shall not be required to increase any sum payable to any Lender with respect to
any Taxes (y) that are attributable to such Lender’s failure to comply with the
requirements of Section 2.16 (f), or (z) that are
United States withholding taxes payable with respect to payments under the Loan
Documents under laws (including any statute, treaty or regulation) in effect on
the Closing Date (or, in the case of (A) an Eligible Assignee, the date of the
Assignment and Acceptance, (B) a successor Administrative Agent, the date of the
appointment of such Administrative Agent, and (C) a successor Issuer, the date
such Issuer becomes an Issuer) applicable to such Lender, such Issuer or the
Administrative Agent, as the case may be (each such date, the “Applicable
Date”), except to the extent that such Lender’s assignor (if any), a predecessor
Administrative Agent or a predecessor Issuer, as the case may be, was entitled,
on the Applicable Date, to receive additional sums payable with respect to such
Taxes under this Section 2.16 or that such Taxes are
payable as a result of any change in such laws occurring after the Applicable
Date.

     

    (b)          In
addition, the Borrower shall pay to the relevant Governmental Authority in
accordance with applicable law any present or future stamp or documentary taxes
or any other excise or property taxes, charges or similar levies of the United
States or any political subdivision thereof or any foreign jurisdiction, and all
liabilities with respect thereto (including any interest, additions to tax or
penalties applicable thereto), in each case arising from any payment made under
any Loan Document or from the execution, delivery, enforcement or registration
of, or otherwise with respect to, any Loan Document (collectively, “Other Taxes”).

     

    (c)           The
Loan Parties shall, jointly and severally, indemnify each Lender, each Issuer
and the Administrative Agent for the full amount of Taxes and Other Taxes
(including any Taxes and Other Taxes imposed by any jurisdiction on amounts
payable under this Section 2.16) paid or payable by such Lender, such Issuer or
the Administrative Agent (as the case may be) and any liability (including for
penalties, interest and expenses) arising therefrom or with respect thereto
(including as a result of any Loan Party’s failure to pay such Taxes or Other
Taxes when due to the relevant Governmental Authority or to furnish the required
receipts under Section 2.16(d)), whether or not such Taxes or Other Taxes were
correctly or legally asserted.  This indemnification shall be made
within 30 days from the date such Lender, such Issuer or the Administrative
Agent (as the case may be) makes written demand (including documentation
reasonably supporting such request) therefor.

     

    (d)          Within
30 days after the date of any payment of Taxes or Other Taxes by any Loan Party,
the Borrower shall furnish to the Administrative Agent, at its address referred
to in Section 13.7, the original or a certified copy of a receipt evidencing
payment thereof.

     

    (e)                   Without
prejudice to the survival of any other agreement of the Borrower hereunder, the
agreements and obligations of the Borrower contained in this Section 2.16 shall survive the
payment in full of the Obligations, provided, however, that the
Borrower shall not be required to compensate a Lender pursuant to this Section
2.16 for any taxes incurred more than 180 days prior to the date that such
Lender demands, or notifies the borrower of its intention to demand,
compensation therefor; provided, that, it the
circumstance giving rise to such increased cost or reduction is retroactive,
then such 180 day period referred to above shall be extended to include the
period of retroactive effect thereof.

     

    
      
         


      

      
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    (f)           (i)
Prior to the Closing Date in the case of each Non-U.S. Lender that is a
signatory hereto, and on the date of the Assignment and Acceptance pursuant to
which it becomes a Lender or on the date a successor Issuer becomes an Issuer or
on the date a successor Administrative Agent becomes the Administrative Agent,
as the case may be, in the case of each other Non-U.S. Lender, on or before the
date that any such form or certification expires or becomes obsolete, after the
occurrence of any event requiring a change in the most recent form or
certification previously delivered by it to the Borrower and the Administrative
Agent, and from time to time thereafter if requested by the Borrower or the
Administrative Agent, each Non-U.S. Lender that is entitled at such time 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: (v) Form W-8IMY (together with any
applicable underlying IRS forms, documentation or certificates) or successor
form, (w) 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, (x) Form W-8BEN (claiming exemption from, or a reduction of, U.S.
withholding tax under an income tax treaty) or any successor form, (y) in the
case of a Non-U.S. Lender 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 and a certificate
substantially in the form of Exhibit F or (z) any other
applicable form, certificate or document prescribed by the IRS or any applicable
law certifying as to such Non-U.S. Lender’s entitlement to such exemption from
United States withholding tax or reduced rate with respect to all payments to be
made to such Non-U.S. Lender 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 Non-U.S. Lender 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.  Notwithstanding any other provision of this Section
2.16(f) a Non-U.S. Lender shall not be required to deliver any form pursuant to
this Section 2.16 that such Non-U.S. Lender is not legally able to
deliver.

     

    (ii)          Prior
to the Closing Date in the case of each U.S. Lender that is a signatory hereto,
and on the date of the Assignment and Acceptance pursuant to which it becomes a
Lender, or on the date a successor Issuer becomes an Issuer or on the date a
successor Administrative Agent becomes the Administrative Agent, as the case may
be, in the case of each other U.S. Lender, on or before the date that any such
form or certification expires or becomes obsolete, after the occurrence of any
event requiring a change in the most recent form or certification previously
delivered by it to the Borrower and the Administrative Agent, and from time to
time thereafter if requested by the Borrower or the Administrative Agent, each
U.S. Lender shall provide the Administrative Agent and the Borrower with two
completed originals of Form W-9 (certifying that such U.S. Lender is entitled to
an exemption from U.S. backup withholding tax) or any successor
form.  Solely for purposes of this Section 2.16(f), a U.S. Lender
shall not include a Lender, an Issuer or an Administrative Agent that may be
treated as an exempt recipient based on the indicators described in Treasury
Regulation section 1.6049-4(c)(1)(ii).

     

    
      
         


      

      
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    (g)           Any
Lender claiming any additional amounts payable pursuant to this Section
2.16 shall, if
requested by the Borrower, use commercially reasonable efforts (consistent with
its internal policies and Requirements of Law) to change the jurisdiction if the
making of such a change would avoid the need for, or reduce the amount of, any
such additional amounts that would be payable or may thereafter accrue and would
not, in the sole determination of such Lender, be otherwise disadvantageous to
such Lender; provided,
that, nothing in this
Section 2.16(g) shall affect or postpone any of the obligations of the Borrower
or any other Loan Party or the rights of any Lender under this Section
2.16.

     

    (h)           Each
Lender shall indemnify the Administrative Agent for the full amount of any
taxes, levies, imposts, duties, charges, fees, deductions, withholdings or
similar charges imposed by any Governmental Authority that are attributable to
such Lender and that are payable or paid by the Administrative Agent, together
with all interest, penalties, reasonable costs and expenses arising therefrom or
with respect thereto, as determined by the Administrative Agent in good
faith.  A certificate as to the amount of such payment or liability
delivered to any Lender by the Administrative Agent shall be conclusive absent
manifest error.

     

    Section
2.17        Substitution of
Lenders

     

    (a)           In
the event that (i)(A) any Lender makes a claim under Section 2.14(b) or Section 2.15, (B) it
becomes illegal for any Lender to continue to fund or make any Eurodollar Rate
Loan and such Lender notifies the Borrower pursuant to Section 2.14(c), (C) any
Loan Party is required to make any payment pursuant to Section 2.16 that is attributable to
a particular Lender or (D) any Lender becomes a Non-Funding Lender and (ii) in
the case of clause
(i)(A) above, as a consequence of increased costs in respect of which
such claim is made, the effective rate of interest payable to such Lender under
this Agreement with respect to its Loans materially exceeds the effective
average annual rate of interest payable to the Requisite Lenders under this
Agreement (any such Lender, an “Affected Lender”), the
Borrower may substitute any Lender and any other Eligible Assignee (a “Substitute Institution”) for
such Affected Lender hereunder, after delivery of a written notice (a “Substitution Notice”) by the
Borrower to the Administrative Agent and the Affected Lender within a reasonable
time (in any case not to exceed 90 days) following the occurrence of any of the
events described in clause
(i) above that the Borrower intends to make such substitution; provided, however, that, if
more than one Lender claims increased costs, illegality or right to payment
arising from the same act or condition and such claims are received by the
Borrower within 30 days of each other, then the Borrower may substitute all, but
not (except to the extent the Borrower has already substituted one of such
Affected Lenders before the Borrower’s receipt of the other Affected Lenders’
claim) less than all, Lenders making such claims.

     

    (b)           If
the Substitution Notice was properly issued under this Section 2.17, the
Affected Lender shall sell, and the Substitute Institution shall purchase, all
rights and claims of such Affected Lender under the Loan Documents, and the
Substitute Institution shall assume, and the Affected Lender shall be relieved
of, the Affected Lender’s Revolving Commitments and all other prior unperformed
obligations of the Affected Lender under the Loan Documents (other than in
respect of any damages (other than exemplary or punitive damages, to the extent
permitted by applicable law) in respect of any such unperformed
obligations).  Such purchase and sale (and the corresponding
assignment of all rights and claims hereunder) shall be recorded in the Register
maintained by the Administrative Agent and shall be effective on (and not
earlier than) the later of (i) the receipt by the Affected Lender of its
Revolving Percentage of the Revolving Outstandings or Term Percentage of Term
Loans, as applicable, together with any other Obligations owing to it, (ii) the
receipt by the Administrative Agent of an agreement in form and substance
reasonably satisfactory to it and the Borrower whereby the Substitute
Institution shall agree to be bound by the terms hereof and (iii) the payment in
full to the Affected Lender in cash of all fees, unreimbursed costs and expenses
and indemnities accrued pursuant to the terms of the Loan Documents and unpaid
through such effective date.  Upon the effectiveness of such sale,
purchase and assumption, the Substitute Institution shall become a “Lender” hereunder for all
purposes of this Agreement having a Commitment in the amount of such Affected
Lender’s Commitment assumed by it and such Commitment of the Affected Lender
shall be terminated; provided,
however, that all indemnities under the Loan Documents shall continue in
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    (c)           Each
Lender agrees that, if it becomes an Affected Lender and its rights and claims
are assigned hereunder to a Substitute Institution pursuant to this Section
2.17, it shall execute and deliver to the Administrative Agent an Assignment and
Acceptance to evidence such assignment, together with any Promissory Note (if
such Loans are evidenced by a Promissory Note) evidencing the Loans subject to
such Assignment and Acceptance; provided, however, that the
failure of any Affected Lender to execute an Assignment and Acceptance shall not
render such assignment invalid.

     

    Section
2.18        Defaulting
Lenders.

     

    Notwithstanding
any provision of this Agreement to the contrary, if any Revolving Lender becomes
a Defaulting Lender, then the following provisions shall apply for so long as
such Revolving Lender is a Defaulting Lender if any Letter of Credit Obligations
exist at the time a Revolving Lender becomes a Defaulting Lender, then the
Borrower shall within 15 Business Days (or such longer period as the
Administrative Agent and relevant Issuer may agree to) following written notice
by the Administrative Agent to the Borrower (A) cash collateralize such
Defaulting Lender’s share of the Letter of Credit Obligations in accordance with
the procedures set forth in Section 9.3 for so long as such
Letter of Credit Obligations are outstanding, or (B) enter into other
arrangements reasonably satisfactory to the Administrative Agent, the Issuer and
the Borrower (it being understood and agreed that once a Revolving Lender is no
longer a Defaulting Lender and has satisfied all of its obligations under this
Agreement, the cash collateral referenced in clause (A) above of this
Section 2.18 shall
be returned promptly to the Borrower).

     

    The
rights and remedies against a Defaulting Lender under this Section 2.18 are in addition to
other rights and remedies that Borrower, the Administrative Agent, the Issuer
and the non-Defaulting Lenders may have against such Defaulting
Lender.  The arrangements permitted or required by this Section
2.18 shall be
permitted under this Agreement, notwithstanding any limitation on Liens or
otherwise.

     

    
      
         


      

      
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    Section
2.19        Priority and
Liens.

     

    The
Debtors hereby covenant, represent and warrant that, upon entry of the Interim
Order (and the Final Order, as applicable), the Obligations of the Debtors
hereunder and under the other Loan Documents, each Cash Management Document,
each Hedging Contract and the obligations of the Debtors pursuant to Article XI,
(i) pursuant to Section 364(c)(1) of the Bankruptcy Code, shall at all times
constitute allowed Superpriority Claims, (ii) pursuant to Section 364(c)(2) of
the Bankruptcy Code, shall be secured by a perfected first priority Lien on all
Collateral that is otherwise not encumbered by a valid and perfected Lien as of
the Petition Date or a valid Lien perfected (but not granted) thereafter to the
extent such post-Petition Date perfection in respect of a pre-Petition Date
claim is expressly permitted under Section 546(b) of the Bankruptcy Code and
(iii) pursuant to Section 364(c)(3) of the Bankruptcy Code, shall be secured by
a perfected junior Lien upon all Collateral that is subject to valid, perfected
and non-avoidable Liens in existence on the Petition Date or valid Liens
perfected (but not granted) thereafter to the extent such post-Petition Date
perfection in respect of a pre-Petition Date claim is expressly permitted under
Section 546(b) of the Bankruptcy Code, subject, in each case, only to (x) in the
event of the occurrence and during the continuance of an Event of Default, the
payment of allowed and unpaid professional fees and disbursements (the “Professional Fees”) incurred
at any time after the first business day following delivery of written notice
from the Administrative Agent to the U.S. Trustee and each of the lead counsel
for the Debtors and the Committee (as defined below) (the “Trigger Notice”) of the
occurrence of an Event of Default (to the extent allowed by the Bankruptcy Court
at any time) by the Loan Parties and any statutory committees appointed in the
Cases (each a “Committee”) in an aggregate
amount not in excess of $1,500,000 (the “Carve Out Cap”), (y) all
unpaid Professional Fees incurred by the Loan Parties and any Committee at any
time on or prior to the first business day following delivery of the Trigger
Notice to the extent allowed by the Bankruptcy Court at any time, and the
payment of fees pursuant to 28 U.S.C. §1930 and (z) fees and expenses up to
$250,000 incurred by a trustee under Section 726(b) of the Bankruptcy Code
(without regard to the notice set forth in (x) or (y) above) (the amounts
described in clauses (x), (y)
and (z)
collectively, the “Carve
Out”).  Notwithstanding the foregoing, (i) the Carve Out shall not
be available to pay any professional fees and expenses incurred in connection
with the initiation or prosecution of any claims, causes of action, adversary
proceedings or other litigation against the Administrative Agent, the Lenders or
the administrative agent under the Prepetition Credit Agreement, (ii) so long as
an Event of Default shall not have occurred and be continuing, the Debtors shall
be permitted to pay compensation and reimbursement of expenses allowed and
payable under 11 U.S.C. § 330 and § 331, as the same may be due and payable, and
the same shall not reduce the Carve Out and (iii) the Carve Out Cap shall not be
reduced by the payment of Professional Fees incurred on or prior to the first
business day following delivery of a Trigger Notice without regard to when such
amounts are allowed by the Bankruptcy Court.  Upon the commencement of a
liquidation, the Debtors are directed to deposit an amount equal to the unpaid
Professional Fees, including the Carve Out Cap, prior to making any
distributions to creditors in a segregated account solely for payment of
Professional Fees that are within the Carve Out. Nothing herein shall be
construed as a waiver of the right of the Administrative Agent or any Lender to
object to the allowance of any Professional Fees and disbursements.

     

    As to all
Collateral, including without limitation, all cash, Cash Equivalents and Real
Property the title to which is held by any Debtor, or the possession of which is
held by any Debtor in the form of a leasehold interest, each Debtor hereby
grants a security interest in, hypothecates, mortgages, pledges to the
Administrative Agent, for the benefit of the Lenders and the other holders of
the Obligations, all of the right, title and interest of the Borrower and such
Debtor in all of such Collateral, including without limitation, all cash, Cash
Equivalents and owned Real Property and in all such leasehold interests,
together in each case with all of the right, title and interest of the Borrower
and such Debtor in and to all buildings, improvements, and fixtures related
thereto, any lease or sublease thereof, all general intangibles relating thereto
and all proceeds thereof.  The Borrower and each Debtor acknowledges
that, pursuant to the Orders, the Liens granted in favor of the Administrative
Agent (on behalf of the Lenders) in all of the Collateral shall be perfected
without the recordation of any Uniform Commercial Code financing statements,
notices of Lien or other instruments of mortgage or assignment.  The
Borrower and each Guarantor further agrees that (a) the Administrative Agent
shall have the rights and remedies set forth in Article IX and Article XII and
the Orders in respect of the Collateral and (b) if requested by the
Administrative Agent, the Borrower and each of the other Debtors shall enter
into separate security agreements, pledge agreements and fee mortgages with
respect to such Collateral on terms reasonably satisfactory to the
Administrative Agent.

     

    Section
2.20        Payment of
Obligations. Upon the
maturity (whether by acceleration or otherwise) of any of the Obligations under
this Agreement, any of the other Loan Documents, each Cash Management Document
and each Hedging Contract, the Lenders shall be entitled to immediate payment of
such Obligations without further application to or order of the Bankruptcy
Court.

     

    
      
         


      

      
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    Section
2.21        No Discharge; Survival of
Claims.

     

    Each
Debtor agrees that to the extent its Obligations (other than contingent
indemnification and fees obligations not yet due and owing) hereunder are not
satisfied in full, (a) its Obligations arising hereunder shall not be discharged
by the entry of a Confirmation Order (and each Debtor, pursuant to Section
1141(d)(4) of the Bankruptcy Code, hereby waives any such discharge) and (b) the
Superpriority Claim granted to the Administrative Agent and the Lenders pursuant
to the Orders and described in Section 2.19 and the Liens granted to the
Administrative Agent pursuant to the Orders and described in Section 2.19 shall
not be affected in any manner by the entry of a Confirmation Order.

     

    Section
2.22        Conflicts.

     

    To the
extent of any conflict between the provisions of this Agreement and provisions
contained in the Interim Order (or the Final Order, as applicable), the
provisions of the applicable Order shall govern in all respects.

     

    Section
2.23        Fifteen Month Facility
Extension Option.

     

    The
Borrower may extend the Scheduled Termination Date to August 3, 2011 (the “Fifteen Month Facility Extension
Option”) subject to, and the Scheduled Termination Date shall be so
extended upon satisfaction or waiver of, the following conditions
precedent:

     

    (a)           the
Borrower shall provide written notice to the Administrative Agent at least
thirty (30) days and no more than forty-five (45) days prior to May 3, 2011 of
its intention to exercise the Fifteen Month Facility Extension
Option;

     

    (b)           the
Borrower shall pay a fee to the Administrative Agent on or before the initial
Scheduled Termination Date for the account of the Lenders equal to 1.0% of the
sum of (i) the Revolving Commitments and (ii) the outstanding principal balance
of the Terms Loans, in each case as May 3, 2011;

     

    (c)           the
Loan Parties shall have filed with the Bankruptcy Court a plan of reorganization
with the Bankruptcy Court;

     

    (d)           the
Administrative Agent and the Lenders shall have received monthly Budgets through
August 3, 2011;

     

    (e)           no
Default or Event of Default shall have occurred and be continuing as of May 3,
2011; and

     

    (f)           the
representations and warranties of the Borrower and each other Loan Party
contained in Article IV or any other Loan Document shall be true and correct in
all material respects on and as of May 3, 2011 and shall be true and correct in
all material respects on and as of May 3, 2011 with the same effect as though
made on and as of such date, except to the extent such representations and
warranties expressly relate to an earlier date, in which case such
representations and warranties shall have been true and correct in all material
respects as of such earlier date.

     

    The
Administrative Agent will notify the Borrower and the Lenders upon the
effectiveness of the Fifteen Month Facility Extension Option.

     

    
      
         


      

      
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    ARTICLE
III

    Conditions
to Loans and Letters of Credit

     

    Section
3.1          Conditions to the
Initial Extension of Credit

     

    The
agreement of each Lender to make the Term Loans on the Closing Date and any
Revolving Loans requested to be made by it during the period on and from the
Closing Date until the Final Closing Date and of each Issuer to Issue any Letter
of Credit during the period on and from the Closing Date until the Final Closing
Date is subject to the satisfaction or waiver, prior to or concurrently with the
making of such extension of credit, of the following conditions
precedent:

     

    (a)           Certain
Documents.  The Administrative Agent shall have received on or
prior to the Closing Date each of the following, each dated the Closing Date
unless otherwise indicated or agreed to by the Administrative Agent, in form and
substance reasonably satisfactory to the Administrative Agent:

     

    (i)           this
Agreement, duly executed and delivered by the Borrower, each Guarantor and, for
the account of each Lender requesting the same at least two Business Days prior
to the Closing Date, a Promissory Note of the Borrower conforming to the
requirements set forth herein;

     

    (ii)          the
Pledge and Security Agreement, duly executed and delivered by each Loan
Party;

     

    (iii)         each
Deposit Account Control Agreement and Securities Account Control Agreement
required to be delivered pursuant to this Agreement or any other Loan
Document;

     

    (iv)         the
executed Notes Forbearance Agreements, each of which shall be (x) in full force
and effect and (y) reasonably satisfactory to the Administrative
Agent.

     

    (v)          a
Borrowing Base Certificate which calculates the Borrowing Base as of the end of
April 23, 2010;

     

    (vi)         (x)
a customary opinion of Kirkland & Ellis, LLP, counsel to the Debtors and (y)
a customary opinion of Kirkland & Ellis, LLP, counsel to the Specified
Non-Filers;

     

    (vii)        a
copy of the articles or certificate of incorporation (or equivalent Constituent
Document) of each Loan Party, certified as of a recent date by the Secretary of
State of the state of organization of such Loan Party, together with
certificates of such official attesting to the good standing or existence, as
applicable, of each such Loan Party;

     

    (viii)       a
certificate of the Secretary or an Assistant Secretary of each Loan Party
certifying (A) the names and true signatures of each officer of such Loan Party
that has been authorized to execute and deliver any Loan Document or other
document required hereunder to be executed and delivered by or on behalf of such
Loan Party on the Closing Date, (B) the by-laws (or equivalent Constituent
Document) of such Loan Party as in effect on the date of such certification, (C)
the resolutions of such Loan Party’s Board of Directors (or equivalent governing
body) approving and authorizing the execution, delivery and performance of this
Agreement and the other Loan Documents to which it is a party and (D) that there
have been no changes in the certificate of incorporation (or equivalent
Constituent Document) of such Loan Party from the certificate of incorporation
(or equivalent Constituent Document) delivered pursuant to clause (vi)
above;

     

    
      
        
        

      

      
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    (ix)          a
certificate of a Responsible Officer of the Borrower to the effect that (A) the
condition set forth in Section 3.3(b) has been satisfied and
(B) there shall exist no action, suit, investigation, litigation or proceeding
pending or threatened in any court or before any arbitrator or Governmental
Authority that (x) would result in a Material Adverse Change or (y) restrains,
prevents or imposes or can reasonably be expected to impose materially adverse
conditions upon the Facilities;

     

    (x)          evidence
reasonably satisfactory to the Administrative Agent that the insurance policies
required to be maintained by Section 7.5 and any Collateral
Document have been obtained and are in full force and effect, together with,
unless otherwise agreed by the Administrative Agent, endorsements naming the
Administrative Agent, on behalf of the Secured Parties, as an additional insured
or loss payee under all insurance policies as to which the Administrative Agent
shall have reasonably requested to be so named;

     

    (xi)          the
results of recent lien searches conducted in the jurisdictions in which the Loan
Parties are organized, and such search shall reveal no Liens on any of the
assets of the Loan Parties except for Liens permitted by Section 8.2 or
discharged on or prior to the Closing Date pursuant to documentation reasonably
satisfactory to the Administrative Agent; and

     

    (xii)         such
other certificates, documents, agreements and information respecting any Loan
Party as any Lender through the Administrative Agent may reasonably
request.

     

    (b)           Consents,
Etc.  Each of the Borrower and its Subsidiaries shall have
received, on reasonably satisfactory terms, all consents and authorizations
required pursuant to any material Contractual Obligation (other than the Related
Documents or material Contractual Obligations which are in default directly or
indirectly as a result of the Cases) with any other Person and shall have
obtained all Permits of, and effected all notices to and filings with, any
Governmental Authority, in each case, as may be necessary to allow each of the
Borrower and its Subsidiaries lawfully (i) to execute, deliver and perform, in
all material respects, their respective obligations hereunder and under the
other Loan Documents to which each of them, respectively, is, or shall be, a
party and each other agreement or instrument to be executed and delivered by
each of them, respectively, pursuant thereto or in connection therewith and (ii)
to create and perfect the Liens on the Collateral to be owned by each of them in
the manner and for the purpose contemplated by the Loan Documents.

     

    (c)           Interim Order.  The
Bankruptcy Court shall have entered, upon motion in form and substance
reasonably satisfactory to the Administrative Agent, the Interim Order no later
than three Business Days after the Petition Date (or such later date agreed to
by the Administrative Agent in its sole discretion) approving and authorizing
the Facilities, the Loan Documents and all provisions thereof and the priorities
and liens granted under Bankruptcy Code Section 364(c) in form and substance
reasonably satisfactory to the Administrative Agent and its counsel, as well as
the Requisite Lenders, and including without limitation, provisions (i) granting
the Superpriority Claims and the Superpriority Liens in favor of the Lenders on
the Collateral pursuant to Section 2.19, (ii) providing for the automatic
vacation of such stay to permit the enforcement of the Administrative Agent’s or
the Lenders’ remedies hereunder and under the Loan Documents, (iii) prohibiting
the incurrence of Indebtedness with priority equal to or greater than the
Lenders’ under the Loans, except as expressly allowed hereunder, (iv)
prohibiting any granting or imposition of Liens, except as expressly allowed
hereunder, (v) authorizing the repayment in full of all the obligations
outstanding under the Prepetition Credit Agreement, (vi) authorizing the payment
of all fees and expenses due to the Lenders and the Administrative Agent, (vii)
finding that the Lenders are extending credit to the Borrower in good faith
within the meaning of Section 364(e) of the Bankruptcy Code, (viii) authorizing
extensions of credit in the form of revolving loans to the Borrower in amounts
not in excess of $30,000,000 (the “Revolving Interim Availability Amount”)
and (ix) authorizing extensions of credit in the form of term loans to the
Borrower in an amount equal to $45,000,000;

     

    
      
        
        

      

      
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    (d)           Effectiveness of Interim
Order.  The Interim Order shall not have been reversed,
modified, amended, stayed or vacated, in the case of any modification or
amendment, in a manner adverse to the Lenders, without the consent of the
Administrative Agent and the Requisite Lenders;

     

    (e)           Compliance with Interim
Order.  The Loan Parties shall be in compliance in all respects
with the Interim Order pursuant to the terms therein;

     

    (f)           First Day
Motion/Orders.  The Cases shall have been commenced in the
Bankruptcy Court and all of the “first day orders” and all related pleadings to
be entered at the time of commencement of the Cases or shortly thereafter,
including in respect of amounts of critical vendor payments, if any, shall be
reasonably satisfactory in form and substance to the Administrative
Agent;

     

    (g)           No Trustee.  No
trustee, receiver, interim receiver or receiver and manager shall be appointed
in any of the Cases, or a responsible officer or an examiner with enlarged
powers shall be appointed in any of the Cases (having powers beyond those set
forth in Bankruptcy Code sections 1106(a)(3) and (4));

     

    (h)           Fees and
Expenses.  The Lenders, the Administrative Agent and the
Arranger shall have received all fees and invoiced reasonable out-of-pocket
expenses earned, due and payable on or before the Closing Date;

     

    (i)           Available
Credit.  After giving effect to the Loans funded and the
Letters of Credit Issued on the Closing Date, the Available Credit shall be
equal to or greater than $11,000,000 as of the Closing Date;

     

    (j)           Repayment of Prepetition Credit
Agreement. The loans under the Prepetition Credit Agreement shall have
been repaid in full in cash and all commitments relating thereto shall have been
terminated, and all liens and security interests related thereto shall have been
terminated or released, in each case contemporaneous with such repayment and the
Administrative Agent shall have received a payoff letter in form and substance
reasonably satisfactory to it in connection therewith;

     

    (k)           Litigation.  There
shall not exist any action, investigation, litigation or proceeding pending or
threatened in any court or before any arbitrator or governmental authority that
could reasonably be expected to have a Material Adverse Effect;

     

    (l)           Financial
Statements.  The Administrative Agent and the Lenders shall
have received (i) audited consolidated financial statements of the Borrower
for the three most recent Fiscal Years and (ii) unaudited consolidated financial
statements of the Borrower for the fiscal quarter ended March 31, 2010, subject
to the absence of footnote disclosure and normal year end audit
adjustments;

     

    
      
        
        

      

      
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    (m)           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 clause (l) above prepared to
give effect to the consummation of the funding of the Loans as if such funding
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;

     

    (n)           Budget.  The
Administrative Agent and the Lenders shall have received the Budget, which shall
be in substance reasonably satisfactory to the Administrative Agent and the
Lenders;

     

    (o)           Cash Flow Forecasts. The
Administrative Agent and the Lenders shall have received a 13-week cash flow
projection of the Borrower and its Subsidiaries, which shall be in form and
substance reasonably satisfactory to the Administrative Agent and the Lenders
(the “Initial Cash Flow
Forecast”);

     

    (p)           Pledged Stock; Stock Powers; Pledged
Notes.  The Administrative Agent shall have received, to the
extent applicable, (i) the certificates representing the shares of Stock pledged
pursuant to the Collateral Documents and/or the Orders, together with (where
permissible under applicable law) an undated stock power for each such
certificate executed in blank by a duly authorized officer of the pledgor
thereof and (ii) each promissory note (if any) pledged to the Administrative
Agent pursuant to the Collateral Documents and/or the Order endorsed (without
recourse) in blank (or accompanied by an executed transfer form in blank) by the
pledgor thereof;

     

    (q)           Field Examination. The
Administrative Agent shall be reasonably satisfied with the results of a field
examination of the Borrowing Base Contributors conducted by the Administrative
Agent’s field examiners;

     

    (r)           Patriot Act.  The
Administrative Agent shall have received at least three days prior to the
Closing 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;

     

    (s)           Mortgages.  The
Administrative Agent shall have received counterparts of each of the following,
each dated on or before the Closing Date, in form and substance reasonably
satisfactory to the Administrative Agent:

     

    (i)           a
Mortgage with respect to each Specified Real Property;

     

    (ii)          an
opinion of counsel in the states in which the Mortgages for each Specified Real
Property is to be recorded;

     

    (iii)         for
each Specified Real Property with a net book value equal to or greater than
$700,000 (other than the Designated Real Property) (x) a mortgagee’s title
policy (or policies) or marked-up unconditional binder (or binders) for such
insurance (a “Mortgagee’s
Title Insurance Policy”), which shall (A) be issued at ordinary rates,
(B) insure that the Lien granted pursuant to the Mortgage insured thereby
creates a valid first Lien on such Specified Real Property free and clear of all
defects and encumbrances, except for Customary Permitted Liens, (C) name the
Administrative Agent for the benefit of the Secured Parties as the insured
thereunder, (D) be in the form of the ALTA Loan Policy – 2006 (or equivalent
policies), (E) contain such  endorsements and affirmative coverages as
the Administrative Agent, and be in an amount, shall reasonably request, and (F)
be issued by one or more national title insurance companies  and (y) a
copy of all documents referred to, or listed as exceptions to title, in such
title policy (or policies);

     

    
      
        
        

      

      
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    (iv)         for
each Specified Real Property with a net book value equal to or greater than
$700,000 (other than the Designated Real Property), evidence that all premiums
in respect of each Mortgagee’s Title Insurance Policy, all recording fees and
stamp, documentary, intangible or mortgage taxes, if any, in connection with the
Mortgage have been paid or delivered to the title company to pay;

     

    (v)          for
each Specified Real Property, a “Life-of-Loan” Federal Emergency Management
Agency Standard Flood Hazard Determination (together with a notice about special
flood hazard area status and flood disaster assistance, duly executed by the
applicable Borrower or the applicable Loan Party);

     

    (vi)         with
respect to any Specified Real Property that is a Flood Hazard Property, the
Administrative Agent shall have received (A) evidence of flood insurance (to the
extent such Mortgaged Property is located in a community which participates in
the National Flood Insurance Program) in an amount which will cause such
Mortgaged Property to comply with the National Flood Insurance Program as set
forth in the Flood Disaster Protection Act of 1973 and (B) confirmation that the
Borrower or the applicable Loan Party has received the notice required pursuant
to Section 208(e)(3) of Regulation H of the Board;

     

    (vii)        if
available and in possession of the Borrower, a Phase I environmental report with
respect to each parcel of Specified Real Property;

     

    (viii)       if
available and in possession of the Borrower, a survey with respect to each
parcel of Specified Real Property; and

     

    (ix)         such
other agreements, documents and instruments as the Administrative Agent deems
reasonably necessary to create, register or otherwise perfect, maintain,
evidence the existence, substance, form or validity of, or enforce a valid and
enforceable first priority Lien on each parcel of Specified Real Property in
favor of the Administrative Agent for the benefit of the Secured Parties (or in
favor of such other trustee as may be required under local law) subject only to
Permitted Liens.

     

    Section
3.2          Conditions to the
Final Extension of Credit

     

    The
agreement of each Lender to make any Revolving Loans requested to be made by it
on and after the Final Closing Date and of each Issuer to Issue any Letter of
Credit on and after the Final Closing Date is subject to the satisfaction or
waiver, prior to or concurrently with the making of such extension of credit, of
the following conditions precedent:

     

    (a)           Final Order. Not later than
45 days following the entry of the Interim Order (or such later date agreed to
by the Administrative Agent), the Final Order shall have been entered by the
Bankruptcy Court in form and substance reasonably satisfactory to the
Administrative Agent and the Requisite Lenders on a motion by the Loan Parties
that is in form and substance reasonably satisfactory to the Administrative
Agent, approving and authorizing on a final basis the matters and containing the
provisions described in Section 3.1(c) and containing a waiver of the Debtors’
rights under Section 506(c) of the Bankruptcy Code;

     

    (b)           Effectiveness of Final Order.
The Final Order shall not have been reversed, modified, amended, stayed or
vacated in a manner adverse to the Lenders;

     

    (c)           Compliance with Final Order.
The Loan Parties shall be in compliance with the Final Order in accordance with
the terms therein;

     

    
      
        
        

      

      
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    (d)           Cash Flow
Forecasts.  The Lenders shall have received the Cash Flow
Forecast and variance reports then required pursuant to Section 6.1(i) and
Section 6.1(j), each in form reasonably satisfactory to the Administrative
Agent;

     

    (e)           Fees and
Expenses.  The Lenders, the Administrative Agent and the
Arranger shall have received all fees and invoiced reasonable out-of-pocket
expenses earned, due and payable on or before the Final Closing
Date;

     

    (f)           Mortgages.  The
Administrative Agent shall have received counterparts of each of the following,
each dated on or before the Final Closing Date, in form and substance reasonably
satisfactory to the Administrative Agent:

     

    (i)           a
Mortgage with respect to each Non-Specified Real Property;

     

    (ii)          an
opinion of counsel in the states in which the Mortgages for each Non-Specified
Real Property is to be recorded;

     

    (iii)         for
each Non-Specified Real Property a “Life-of-Loan” Federal Emergency Management
Agency Standard Flood Hazard Determination (together with a notice about special
flood hazard area status and flood disaster assistance, duly executed by the
applicable Borrower or the applicable Loan Party);

     

    (iv)         with
respect to any Non-Specified Property that is a Flood Hazard Property, the
Administrative Agent shall have received (A) evidence of flood insurance (to the
extent such Mortgaged Property is located in a community which participates in
the National Flood Insurance Program) in an amount which will cause such
Mortgaged Property to comply with the National Flood Insurance Program as set
forth in the Flood Disaster Protection Act of 1973 and (B) confirmation that the
Borrower or the applicable Loan Party has received the notice required pursuant
to Section 208(e)(3) of Regulation H of the Board;

     

    (v)          if
available and in possession of the Borrower, a Phase I environmental report with
respect to each parcel of Non-Specified Real Property;

     

    (vi)         if
available and in possession of the Borrower, a survey with respect to each
parcel of Non-Specified Real Property; and

     

    (vii)        such
other agreements, documents and instruments as the Administrative Agent deems
reasonably necessary to create, register or otherwise perfect, maintain,
evidence the existence, substance, form or validity of, or enforce a valid and
enforceable first priority Lien on each parcel of Non-Specified Real Property in
favor of the Administrative Agent for the benefit of the Secured Parties (or in
favor of such other trustee as may be required under local law) subject only to
Permitted Liens.

     

    Section
3.3           Conditions
Precedent to Each Loan and Letter of Credit

     

    The
obligation of each Lender on any date (including the Closing Date and the Final
Closing Date) to make any Loan and of each Issuer on any date (including the
Closing Date and the Final Closing Date) to Issue any Letter of Credit is
subject to the satisfaction of each of the following conditions
precedent:

     

    (a)           Request for Borrowing or Issuance of
Letter of Credit.  With respect to any Loan, the Administrative
Agent shall have received a duly executed Notice of Borrowing and with respect
to any Letter of Credit, the Administrative Agent and the Issuer shall have
received a duly executed letter of credit application in form and substance
reasonably satisfactory to the Issuer.

     

    
      
        
        

      

      
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    (b)           Representations and Warranties; No
Defaults.  The following statements shall be true on the date
of such Loan or Issuance, both before and after giving effect thereto and, in
the case of any Loan, to the application of the proceeds thereof:

     

    (i)           the
representations and warranties set forth in Article IV and in the other Loan
Documents shall be true and correct on and as of the Closing Date and shall be
true and correct in all material respects on and as of any such date after the
Closing Date with the same effect as though made on and as of such date, except
to the extent such representations and warranties expressly relate to an earlier
date, in which case such representations and warranties shall have been true and
correct in all material respects as of such earlier date; and

     

    (ii)          no
Default or Event of Default shall have occurred and be continuing.

     

    (c)           Borrowing
Base.  The Borrower shall have delivered the Borrowing Base
Certificate required to be delivered by Section 6.11(a).  After giving
effect to the Revolving Loans or Letters of Credit requested to be made or
Issued on any such date and the use of proceeds thereof, (i) the Revolving
Outstandings shall not exceed the Maximum Credit at such time and (ii) the
Available Credit shall not be less than the Applicable Amount.

     

    (d)           No Legal
Impediments.  The making of the Loans or the Issuance of such
Letter of Credit on such date does not violate any Requirement of Law on the
date of or immediately following such Loan or Issuance of such Letter of Credit
and is not enjoined, temporarily, preliminarily or permanently.

     

    Each
submission by the Borrower to the Administrative Agent of a Notice of Borrowing
and the acceptance by the Borrower of the proceeds of each Loan requested
therein, and each Issuance of each Letter of Credit, shall be deemed to
constitute a representation and warranty by the Borrower as to the matters
specified in clause (b)
above on the date of the making of such Loan or the Issuance of such Letter of
Credit.

     

    Section
3.4           Determinations
of Borrowing Conditions

     

    For
purposes of determining compliance with the conditions specified in Section 3.1,
Section 3.2 and Section 3.3, each Lender shall be deemed to have consented to,
approved, accepted or be satisfied with, each document or other matter required
thereunder to be consented to or approved by or acceptable or satisfactory to
the Lenders unless the Administrative Agent shall have received notice from such
Lender prior to such Borrowing or Issuance or deemed Issuance hereunder
specifying its objection thereto and such Lender shall not have made available
to the Administrative Agent such Lender’s ratable portion of such
Borrowing.

     

    ARTICLE
IV

    Representations
and Warranties

     

    To induce
the Lenders, the Issuers and the Administrative Agent to enter into this
Agreement, the Borrower represents and warrants each of the following to the
Lenders, the Issuers and the Administrative Agent, on and as of the Closing Date
and after giving effect to the making of the Loans and the other financial
accommodations on the Closing Date, if any, and on and as of each date as
required by Section 3.3(b)(i):

     

    
      
        
        

      

      
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    Section
4.1           Corporate
Existence; Compliance with Law

     

    Each of
the Borrower and the Borrower’s Subsidiaries (a) is duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
organization, (b) is duly qualified to do business as a foreign entity and in
good standing or in existence, as applicable, under the laws of each
jurisdiction where such qualification is necessary, except where the failure to
be so qualified or in good standing could not reasonably be expected to have,
individually or in the aggregate, a Material Adverse Effect, (c) subject, in the
case of any Debtor, to the entry by the Bankruptcy Court of the Interim Order
and the Final Order and to the terms thereof, has all requisite power and
authority and the legal right to own, pledge, mortgage and operate its material
properties, to lease the material property it operates under lease and to
conduct its business as now or currently proposed to be conducted, (d) is in
compliance with its Constituent Documents, (e) is in compliance with all
applicable Requirements of Law except (x) where the failure to be in compliance
could not reasonably be expected to have, individually or in the aggregate, a
Material Adverse Effect or (y) in the case of any Debtor, to the extent failure
to comply therewith is permitted by Chapter 11 of the Bankruptcy Code and (f)
subject, in the case of any Debtor, to the entry by the Bankruptcy Court of the
Interim Order and the Final Order, has all necessary Permits from or by, has
made all necessary filings with, and has given all necessary notices to, each
Governmental Authority having jurisdiction, to the extent required for such
ownership, operation and conduct, except for Permits or filings that can be
obtained or made by the taking of ministerial action to secure the grant or
transfer thereof or where the failure to obtain or make could not reasonably be
expected to have, individually or in the aggregate, a Material Adverse
Effect.

     

    Section
4.2           Corporate
Power; Authorization; Enforceable Obligations

     

    (a)           The
execution, delivery and performance by each Loan Party (and in the case of a
Debtor, upon entry by the Bankruptcy Court of the Interim Order (or the Final
Order, as applicable)), of the Loan Documents to which it is a party and the
consummation of the transactions contemplated thereby:

     

    (i)           are
within such Loan Party’s corporate, limited liability company, partnership or
other organizational powers;

     

    (ii)          have
been or, at the time of delivery thereof pursuant to Article III will have been duly
authorized by all necessary action, including the consent of shareholders,
partners and members where required;

     

    (iii)         do
not and will not (A) contravene such Loan Party’s or any of its Subsidiaries’
respective Constituent Documents, (B) violate in any material manner any other
Requirement of Law applicable to such Loan Party (including Regulations T, U and
X of the Federal Reserve Board), or any order or decree of any Governmental
Authority or arbitrator applicable to such Loan Party, (C) conflict with or
result in the breach of, or constitute a default under, or result in or permit
the termination or acceleration of any material Contractual Obligation (other
than the Related Documents or any material Contractual Obligation in default
directly or indirectly as a result of the Cases) of such Loan Party or any of
its Subsidiaries or (D) result in the creation or imposition of any Lien upon
any property of such Loan Party or any of its Subsidiaries, other than Liens
permitted under Section 8.2; and

     

    (iv)         do
not require the consent of, authorization by, approval of, notice to, or filing
or registration with, any Governmental Authority or any other Person, other than
(x) those listed on Schedule 4.2 or (y) those that have
been or will be, prior to the Closing Date, obtained or made, and each of which
on the Closing Date will be in full force and effect.

     

    
      
        
        

      

      
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    (b)           This
Agreement has been, and each of the other Loan Documents will have been upon
delivery thereof pursuant to the terms of this Agreement, duly executed and
delivered by each Loan Party party thereto.  This Agreement is, and
the other Loan Documents will be, when delivered hereunder, the legal, valid and
binding obligation of each Loan Party party thereto, enforceable against such
Loan Party in accordance with its terms (except, as it relates to any Non-Filer,
as such enforceability may be limited by applicable bankruptcy, insolvency,
reorganization or similar laws affecting creditors’ rights generally and by
principles of equity).

     

    Section
4.3           Ownership
of Borrower; Subsidiaries

     

    (a)           Set
forth on Schedule 4.3 is a
complete and accurate list showing, as of the Closing Date, all Subsidiaries of
the Borrower and, as to each such Subsidiary, the jurisdiction of its
organization, the number of shares of each class of Stock authorized (if
applicable), the number outstanding on the Closing Date and the number and
percentage of the outstanding shares of each such class owned (directly or
indirectly) by the Borrower or any Subsidiary of the Borrower as of the Closing
Date.  Except as set forth on Schedule 4.3, no Stock
of any Subsidiary of the Borrower is subject to any outstanding option, warrant,
right of conversion or purchase of any similar right as of the Closing
Date.  All of the outstanding Stock of each Subsidiary of the Borrower
owned (directly or indirectly) by the Borrower or any other Subsidiary of the
Borrower has been validly issued, is fully paid and non-assessable (to the
extent applicable) and is owned by the Borrower or a Subsidiary of the Borrower,
free and clear of all Liens (other than the Liens in favor of the Secured
Parties created by this Agreement, the Orders, the Pledge and Security Agreement
or any other Loan Document or otherwise permitted by Section
8.2).  Except as permitted pursuant to Section 8.10, neither the
Borrower nor any such Subsidiary is a party to, or has knowledge of, any
agreement restricting the transfer or hypothecation of any Stock of any such
Subsidiary, other than the Loan Documents.

     

    Section
4.4           Financial
Statements

     

    (a)           The
Consolidated balance sheet of the Borrower and its Subsidiaries as at
December 31, 2009 and the related Consolidated statements of income,
stockholders’ equity and cash flows of the Borrower and its Subsidiaries for the
fiscal years then ended, certified by PricewaterhouseCoopers LLP, and the
unaudited Consolidated balance sheet of the Borrower and its Subsidiaries as at
March 31, 2010, and the related unaudited Consolidated statements of
income, stockholders’ equity and cash flows of the Borrower and its Subsidiaries
for the twelve months then ended, copies of which have been furnished to each
Lender, fairly present in all material respects, subject, in the case of said
balance sheet as at March 31, 2010, and said statements of income,
stockholders’ equity and cash flows for the twelve months then ended, to the
absence of footnote disclosure and normal year-end audit adjustments, the
Consolidated financial condition of the Borrower and its Subsidiaries as at such
dates and the Consolidated results of the operations of the Borrower and its
Subsidiaries for the periods ended on such dates, all in conformity with
GAAP.

     

    (b)           None
of the Borrower or any of its Subsidiaries has any material obligation,
contingent liability or liability for taxes, long-term leases or unusual forward
or long-term commitment that is not reflected in the Financial Statements
referred to in clause (a)
above or in the notes thereto and not otherwise permitted by this
Agreement.

     

    
      
        
        

      

      
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    (c)           The
Budget and Cash Flow Forecast have each been prepared by the Borrower in light
of the past operations of its business.  The Budget and Cash Flow
Forecast are each based upon estimates and assumptions stated therein, all of
which the Borrower believes to be reasonable and fair in light of current
conditions and current facts known to the Borrower and, as of the Closing Date,
reflect the Borrower’s good faith and reasonable estimates of the future
financial performance of the Borrower and its Subsidiaries and of the other
information projected therein for the periods set forth
therein.  While the assumptions and estimates upon which the Budget
and Cash Flow Forecast are based were made in good faith and on the basis of
information and assumptions that the Borrower believed to be reasonable at the
time made, the Lenders, the Issuers and the Administrative Agent understand,
acknowledge and agree that such assumptions and estimates as they relate to
future events are not to be viewed as fact and that actual results during the
period or periods covered by such assumptions and estimates may differ from the
Budget and Cash Flow Forecast, respectively, by a material amount.

     

    Section
4.5           Material
Adverse Change

     

    Since
December 31, 2009, there has been no Material Adverse Change and there have been
no events or developments that, individually or in the aggregate, have had, or
could reasonably be expected to have, a Material Adverse Effect.

     

    Section
4.6           Litigation

     

    There are
no pending or, to the knowledge of the Borrower, threatened actions,
investigations or proceedings affecting the Borrower or any of its Subsidiaries
before any court, Governmental Authority or arbitrator other than (x) the Cases
and (y) those that could not reasonably be expected to have, individually or in
the aggregate, a Material Adverse Effect.

     

    Section
4.7           Taxes

     

    (a)           All
federal, state, local and foreign income and franchise and other material tax
returns, reports and statements required to be filed by the Borrower or any of
its Tax Affiliates (collectively, the “Tax Returns”) have been filed
with the appropriate Governmental Authorities in all jurisdictions in which such
Tax Returns are required to be filed, all such Tax Returns are true, complete
and correct in all material respects, and all taxes, charges and other
impositions reflected therein or otherwise due and payable have been paid prior
to the date on which any fine, penalty, interest, late charge or loss may be
added thereto for non-payment thereof except (i) where contested in good faith
and by appropriate proceedings if adequate reserves therefor have been
established on the books of the Borrower or such Tax Affiliate in conformity
with GAAP or (ii) to the extent the aggregate liability of the Borrower or such
Tax Affiliate does not exceed $1,000,000 at any time or (iii) to the extent
stayed pursuant to the Cases.  Except as set forth on Schedule 4.7, no
Tax Return is under audit or examination by any Governmental Authority and no
notice of such an audit or examination or any assertion of any claim for Taxes
has been given or made by any Governmental Authority, in each case which would
have a Material Adverse Effect.  Proper and accurate amounts have been
withheld by the Borrower and each of its Tax Affiliates from their respective
employees for all periods in compliance in all material respects with the tax,
social security and unemployment withholding provisions of applicable
Requirements of Law and such withholdings have been timely paid to the
respective Governmental Authorities.  Except as set forth on Schedule
4.7, as of the Closing Date, no tax lien has been filed.

     

    (b)           Except
as set forth on Schedule 4.7, as of the Closing Date, in the last two years,
none of the Borrower or any of its Tax Affiliates has (i) executed or filed with
the IRS or any other Governmental Authority any agreement or other document
extending, or having the effect of extending, the period for the filing of any
Tax Return or the assessment or collection of any charges, (ii) incurred any
obligation under any tax sharing agreement or arrangement other than those of
which the Administrative Agent has received a copy prior to the Closing Date or
(iii) been a member of an affiliated, combined or unitary group other than the
group of which the Borrower (or its Tax Affiliate) is the common
parent.

     

    
      
        
        

      

      
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    Section
4.8           Full
Disclosure

     

    The
written information prepared or furnished by or on behalf of the Borrower and
its Subsidiaries in connection with this Agreement (including any information
provided to the Bankruptcy Court) or the consummation of the transactions
contemplated hereunder taken as a whole, when delivered and taken as a whole,
does not contain any untrue statement of a material fact or omit to state a
material fact necessary to make the statements contained therein or herein not
misleading.  All facts known to the Borrower as of the Closing Date
and material to an understanding of the financial condition, business,
properties or prospects of the Borrower and its Subsidiaries taken as one
enterprise have been disclosed on or prior to the Closing Date to the
Administrative Agent; provided that, with respect
to the Budget and Cash Flow Forecast, estimates, budgets or other general market
data, the Borrower represents only that such information was prepared in good
faith based on assumptions and estimates believed to be reasonable at the time
made, and the Lenders, the Issuers and the Administrative Agent understand,
acknowledge and agree that such assumptions and estimates as they relate to
future events are not to be viewed as fact and that actual results during the
period or periods covered by such assumptions and estimates may differ from the
Budget and Cash Flow Forecast, estimates, budgets or other general market data
by a material amount.

     

    Section
4.9           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.

     

    Section
4.10         No Burdensome
Restrictions; No Defaults

     

    (a)           No
Debtor (i) is a party to any Contractual Obligation the compliance with one or
more of which would have, in the aggregate, a Material Adverse Effect or the
performance of which by any thereof, either unconditionally or upon the
happening of an event, would result in the creation of a Lien (other than a Lien
(x) permitted under Section 8.2 or (y) created pursuant
to the Related Documents) on the assets of any thereof or (ii) is subject to one
or more charter or corporate restrictions that would, in the aggregate, have a
Material Adverse Effect.

     

    (b)           Neither
the Borrower nor any Subsidiary of the Borrower is in default under or with
respect to any Contractual Obligation (other than (i) in the case of any Debtor,
entered into prior to the Petition Date, (ii) any default under the Related
Documents or (iii) any default arising directly or indirectly as a result of the
Cases) owed by it and, to the knowledge of the Borrower, no other party is in
default under or with respect to any Contractual Obligation owed to any Loan
Party or to any Subsidiary of any Loan Party, other than, in either case, those
defaults that could not reasonably be expected to have, individually or in the
aggregate, a Material Adverse Effect.

     

    (c)           No
Default or Event of Default has occurred and is continuing.

     

    (d)           To
the best knowledge of the Borrower, there are no Requirements of Law applicable
to any Loan Party or any Subsidiary of any Loan Party the compliance with which
by such Loan Party or such Subsidiary, as the case may be, would, in the
aggregate, have a Material Adverse Effect.

     

    
      
        
        

      

      
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    Section
4.11        Investment Company
Act

     

    Neither
the Borrower nor any Subsidiary of the Borrower is an “investment company” or an
“affiliated person” of,
or “promoter” or “principal underwriter” for,
an “investment
company,” as such terms are defined in the Investment Company Act of
1940, as amended.

     

    Section
4.12        Use of Proceeds

     

    From and
after the Closing Date, 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 the payment of transaction
costs, fees and expenses incurred in connection with this Agreement (including,
without limitation, “Chapter 11 expenses” (or, “administrative costs reflecting
Chapter 11 expenses”)) and the transactions contemplated hereby and (b) for
operating expenses, working capital and general corporate purposes and (c) on
the Closing Date to repay in full the obligations outstanding under the
Prepetition Credit Agreement.

     

    Section
4.13        Insurance

     

    All
policies of insurance of any kind or nature of the Borrower or any of its
Subsidiaries, including policies of life, fire, theft, flood, product liability,
public liability, property damage, other casualty, employee fidelity, workers’
compensation and employee health and welfare insurance, are in full force and
effect and are of a nature and provide such coverage as is sufficient and as is
customarily carried by (including through self insurance) businesses of the size
and character of such Person.  None of the Borrower or any of its
Subsidiaries has been refused insurance for any material coverage for which it
had applied or had any policy of insurance terminated (other than at its
request).

     

    Section
4.14        Labor Matters

     

    (a)           There
are no strikes, work stoppages, slowdowns or lockouts pending or, to the
Borrower’s knowledge, threatened against or involving the Borrower or any of its
Subsidiaries, other than those that could not reasonably be expected to have,
individually or in the aggregate, a Material Adverse Effect.

     

    (b)           There
are (i) no unfair labor practices, grievances, complaints or arbitrations
pending, or, to the Borrower’s knowledge, threatened, against or involving the
Borrower or any of its Subsidiaries or (ii) no arbitrations or grievances
threatened involving the Borrower or any of its Subsidiaries, other than those,
in each case that could not reasonably be expected to have, individually or in
the aggregate, a Material Adverse Effect.

     

    (c)           Except
as set forth on Schedule 4.14, as of the
Closing Date, there is no collective bargaining agreement covering any employee
of the Borrower or its Subsidiaries.

     

    (d)           The
public filings made by the Borrower with the Securities and Exchange Commission
set forth, as of the Closing Date, a listing of all executive employment
agreements and stock option plans of the Borrower and any of its
Subsidiaries.

     

    Section
4.15        ERISA

     

    (a)           Each
employee benefit plan of the Borrower or any of the Borrower’s Subsidiaries
intended to qualify under Section 401 of the Code does so qualify, and any
trust created thereunder is exempt from tax under the provisions of
Section 501 of the Code, except where such failures could not reasonably be
expected to have a Material Adverse Effect.

     

    
      
        
        

      

      
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    (b)           Each
Title IV Plan is in compliance in all material respects with applicable
provisions of ERISA, the Code and other Requirements of Law except for
non-compliances that could not reasonably be expected to have a Material Adverse
Effect.

     

    (c)           There
has been no, nor is there reasonably expected to occur, any ERISA Event other
than those that could not reasonably be expected to have a Material Adverse
Effect.

     

    (d)           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.

     

    (e)           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.

     

    Section
4.16        Environmental
Matters

     

    (a)           The
operations of the Borrower and each of its Subsidiaries are, and have been, in
compliance with all Environmental Laws, including obtaining and complying with
all required environmental, health and safety Permits, other than
non-compliances that, in the aggregate, would not have a reasonable likelihood
of the Borrower and its Subsidiaries incurring Environmental Liabilities and
Costs in excess of $1,000,000.

     

    (b)           None
of the Borrower or any of its Subsidiaries or any Real Property currently or, to
the knowledge of the Borrower, previously owned, operated or leased by or for
the Borrower or any of its Subsidiaries has caused or experienced a Release or
is subject to, or is the subject of, any pending or, to the knowledge of the
Borrower, threatened, Remedial Action litigation, claim, order, agreement,
notice of violation, notice of potential liability proceeding or governmental
investigation under or pursuant to Environmental Laws other than those that, in
the aggregate, are not reasonably likely to result in the Borrower and its
Subsidiaries incurring Environmental Liabilities and Costs in excess of
$1,000,000.

     

    (c)           Except
as disclosed on Schedule 4.16, as of the
Closing Date none of the Borrower or any of its Subsidiaries is a treatment,
storage or disposal facility requiring a Permit under the Resource Conservation
and Recovery Act, 42 U.S.C. § 6901 et seq., the regulations
thereunder or any state analog.

     

    (d)           There
are no facts, circumstances or conditions arising out of or relating to the
operations or ownership of the Borrower or of Real Property owned, operated or
leased by the Borrower or any of its Subsidiaries that are not specifically
included in the financial information furnished to the Lenders other than those
that, in the aggregate, would not have a reasonable likelihood of the Borrower
and its Subsidiaries incurring Environmental Liabilities and Costs in excess of
$1,000,000.

     

    (e)           As
of the Closing Date, no Environmental Lien has attached to any property of the
Borrower or any of its Subsidiaries and, to the knowledge of the Borrower, no
facts, circumstances or conditions exist that could reasonably be expected to
result in any such Lien attaching to any such property.

     

    (f)           As
of the Closing Date, the Borrower and each of its Subsidiaries has provided the
Administrative Agent with an opportunity to review all environmental, health or
safety audits, studies, assessments, inspections, investigations or other
environmental health and safety reports relating to the operations of the
Borrower or any of its Subsidiaries or any Real Property of any of them that are
in the possession, custody or control of the Borrower or any of its
Subsidiaries.

     

    
      
        
        

      

      
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    Section
4.17        Intellectual
Property

     

    The
Borrower and its Subsidiaries own or license or otherwise have the right to use
all licenses, permits, patents, patent applications, trademarks, trademark
applications, service marks, trade names, copyrights, copyright applications,
Internet domain names, franchises, authorizations and other intellectual
property rights (including all Intellectual Property as defined in the Pledge
and Security Agreement) that are necessary for the operations of their
respective businesses, without infringement upon or conflict with the rights of
any other Person with respect thereto, including all trade names associated with
any private label brands of the Borrower or any of its Subsidiaries, except to
the extent the failure to so own, license or use such rights would to have a
Material Adverse Effect.  To the Borrower’s knowledge, no license,
permit, patent, patent application, trademark, trademark application, service
mark, trade name, copyright, copyright application, Internet domain name,
franchise, authorization, other intellectual property right (including all
“Intellectual Property”
as defined in the Pledge and Security Agreement), slogan or other advertising
device, product, process, method, substance, part or component, or other
material now employed, or now contemplated to be employed, by the Borrower or
any of its Subsidiaries infringes upon or conflicts with any rights owned by any
other Person, and no claim or litigation regarding any of the foregoing is
pending or threatened, in either case, which would have a Material Adverse
Effect.

     

    Section
4.18        Title; Real
Property

     

    (a)           Each
of the Borrower and its Subsidiaries has good and marketable title to, or valid
leasehold interests in, all material Real Property and good title to leasehold
interests in or rights in all material personal property, in each case that is
purported to be owned or leased by it, including those reflected on the most
recent Financial Statements delivered by the Borrower, and none of such
properties and assets is subject to any Lien, except Liens permitted under
Section 8.2.  The Borrower and its Subsidiaries have received all
deeds, assignments, waivers, consents, non-disturbance and recognition or
similar agreements, bills of sale and other documents in respect of, and have
duly effected all recordings, filings and other actions necessary to establish,
protect and perfect, the Borrower’s and its Subsidiaries’ right, title and
interest in and to all such property, except to the extent the failure to have
received or effected the same could reasonably be expected to have a Material
Adverse Effect.

     

    (b)           Set
forth on Schedule 4.18 is a
complete and accurate list of all Real Property of each Loan Party and its
Subsidiaries and showing, as of the Closing Date, the current street address
(including city and state) and the Subsidiary which is the owner or lessee
thereof.

     

    (c)           All
Permits required to have been issued or appropriate to enable all Real Property
of the Borrower or any of its Subsidiaries (and in the case of a Debtor, subject
to the Interim Order (and the Final Order when entered)) to be lawfully occupied
and used for all of the purposes for which they are currently occupied and used
have been lawfully issued and are in full force and effect, other than those
that could not reasonably be expected to have, individually or in the aggregate,
a Material Adverse Effect.

     

    Section
4.19        Collateral.

     

    (a)           Subject
to the Carve Out, with respect to the Debtors, the Interim Order is (and the
Final Order when entered will be) effective to create in favor of the Lenders
legal, valid, enforceable and fully perfected security interests in and Liens on
the Collateral described therein.

     

    
      
        
        

      

      
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    (b)                   Without
limiting the foregoing, the Loan Documents are effective to create in favor of
the Administrative Agent, for the benefit of the Lenders, a legal, valid and
enforceable (except, as it relates to any Non-Filer, as such enforceability may
be limited by applicable bankruptcy, insolvency, reorganization or similar laws
affecting creditors’ rights generally and by principles of equity) security
interest in the Collateral described therein and upon the filing of any UCC
financing statements and the taking of any other actions (including providing
control (as defined in the UCC) or notating the Administrative Agent’s lien on
certificates of title) or making of filings required for perfection under the
laws of the relevant jurisdictions and specified in such Loan Documents, as
necessary, and, if applicable, the taking of actions or making of filings with
respect to Intellectual Property registrations or applications issued or
pending, and, in the case of any real property, filing of the Mortgages as
necessary, such Liens constitute perfected and continuing liens on such
Collateral, securing the applicable obligations described in such Loan
Documents, enforceable (except, as it relates to any Non-Filer, as such
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization or similar laws affecting creditors’ rights generally and by
principles of equity) against the applicable Loan Party and all third parties,
and having priority over all other Liens on such Collateral, except in the case
of Liens permitted pursuant to Section 8.2 hereunder, to the
extent such Liens would have priority over the Liens in favor of the
Administrative Agent pursuant to any applicable law and to the extent perfection
may be achieved by the foregoing filings; provided, however, that additional
filings may be required to perfect the security interest for the benefit of the
Lenders in Intellectual Property acquired after the date hereof.

     

    Section
4.20        The Orders.

     

    Upon the
maturity (whether by acceleration or otherwise) of any of the Obligations, the
Lenders shall, subject to the provisions of Article IX and the applicable
provisions of the Orders, be entitled to immediate payment of such Obligations,
and to enforce the remedies provided for hereunder, without further application
to or order by the Bankruptcy Court.  The Interim Order (or the Final
Order, as applicable) is in full force and effect and not subject to appeal,
reversal modification or stay.

     

    ARTICLE
V

    Financial
Covenants

     

    The
Borrower agrees with the Lenders, the Issuers and the Administrative Agent to
each of the following, so long as any Obligation or any Commitment remains
outstanding:

     

    Section
5.1          Minimum
EBITDAR

     

    The
Borrower shall not permit EBITDAR of the Borrower as at the last day of any Test
Period ending on any date set forth below, to be less than the amount set forth
below opposite such date:

     

    
      
        
        

      

      
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                      Date

                    

                  	 	
                    
                      Cumulative

                      Consolidated

                      EBITDAR

                    

                  	 
	 
      	 	 	 
	
                    May
      31, 2010

                  	 	$       	166,000	 
	
                    June
      30, 2010

                  	 	$	2,024,000	 
	
                    July
      31, 2010

                  	 	$	4,140,000	 
	
                    August
      31, 2010

                  	 	$	7,525,000	 
	
                    September
      30, 2010

                  	 	$	11,308,000	 
	
                    October
      31, 2010

                  	 	$	16,277,000	 
	
                    November
      30, 2010

                  	 	$	17,127,000	 
	
                    December
      31, 2010

                  	 	$	16,291,000	 
	
                    January
      31, 2011

                  	 	$	16,738,000	 
	
                    February
      28, 2011

                  	 	$	18,749,000	 
	
                    March
      31, 2011

                  	 	$	21,370,000	 
	
                    April
      30, 2011

                  	 	$	24,031,000	 
	
                    May
      31, 2011

                  	 	$	25,847,000	 
	
                    June
      30, 2011

                  	 	$	30,020,000	 


          

        

      

    

     

    Section
5.2           Maximum
Capital Expenditures

     

    The
Borrower shall not make or incur, or permit to be made or incurred, Capital
Expenditures during any Test Period ending on any date set forth below to exceed
the amount set forth opposite such date:

     

    
      
        
          
            
              	
                      Capital Expenditure Test Period Ending

                    	 	
                      Cumulative Capital Expenditure

                      Amount

                    	 
	 	 	 	 	 
	
                      June
      30, 2010

                    	 	$	1,454,000	 
	
                      September
      30, 2010

                    	 	$	5,549,000	 
	
                      December
      31, 2010

                    	 	$	7,147,000	 
	
                      March
      31, 2011

                    	 	$	11,647,000	 
	
                      June
      30, 2011

                    	 	$	13,647,000	 


            

          

        

      

    

     

    ARTICLE
VI

    Reporting
Covenants

     

    The
Borrower agrees with the Lenders, the Issuers and the Administrative Agent to
each of the following, as long as any Obligation or any Commitment remains
outstanding:

     

    Section
6.1           Financial
Statements

     

    The
Borrower shall furnish to the Administrative Agent (it being understood that
reports on Form 8-K, Form 10-Q or Form 10-K shall be deemed furnished at such
time as the same are publicly available on EDGAR) each of the
following:

     

    (a)           Monthly
Reports.  With respect to each fiscal month in each Fiscal Year
(each, a “referent
month”), on or prior to the last day of the fiscal month following the
end of each such referent month, financial information regarding the Borrower
and its Subsidiaries in the form of Exhibit G, including,
without limitation, (i) Consolidated unaudited statements of income for such
referent month and that portion of the current Fiscal Year ending as of the
close of such month, setting forth in comparative form the figures for the
corresponding period in the prior year and the figures contained in the Budget
or, if applicable, the latest business plan provided pursuant to clause (f) below for the
current Fiscal Year, in each case certified by a Responsible Officer of the
Borrower as fairly presenting in all material respects the Consolidated
financial position of the Borrower and its Subsidiaries as at the dates
indicated and the results of their operations for the periods indicated in
accordance with GAAP (subject to the absence of footnote disclosure and normal
year-end and quarter-end audit adjustments), (ii) the total amount of Capital
Expenditures made during such referent month (and on a cumulative basis since
the Closing Date for the portion of the Fiscal Year then ended), (iii) the gross
amount of Accounts, Trucks and Inventory as of the end of such referent month
and (iv) updates to the most recently delivered narrative discussion and
analysis described in clause
(b) below.

     

    
      
        
        

      

      
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    (b)           Quarterly
Reports.  Within 45 days after the end of each of the first
three Fiscal Quarters of each Fiscal Year, financial information regarding the
Borrower and its Subsidiaries consisting of (i) Consolidated unaudited balance
sheets as of the close of such quarter and the related statements of income and
cash flow for such quarter and that portion of the Fiscal Year ending as of the
close of such quarter, setting forth in comparative form the figures for the
corresponding period in the prior year and the figures from the statements of
income contained in the Budgets or, if applicable, the latest business plan
provided pursuant to clause
(f) below for the current Fiscal Year and (ii) narrative discussion and
analysis of the financial condition and results of operations of the Borrower
and its Subsidiaries for the applicable Fiscal Quarter,  in each case
certified by a Responsible Officer of the Borrower as fairly presenting in all
material respects the Consolidated financial position of the Borrower and its
Subsidiaries as at the dates indicated and the results of their operations and
cash flow for the periods indicated in accordance with GAAP (subject to the
absence of footnote disclosure and normal year-end audit
adjustments).

     

    (c)           Annual
Reports.  Within 90 days after the end of each Fiscal Year,
audited financial information regarding the Borrower and its Subsidiaries
consisting of Consolidated balance sheets of the Borrower and its Subsidiaries
as of the end of such year and related statements of income and cash flows of
the Borrower and its Subsidiaries for such Fiscal Year, all prepared in
conformity with GAAP and certified, in the case of such Consolidated Financial
Statements, without qualification or exception (other than a “going concern”
exception or similar exception or qualification), together with the report of
such accounting firm stating that (i) such Financial Statements fairly present
in all material respects the Consolidated financial position of the Borrower and
its Subsidiaries as at the dates indicated and the results of their operations
and cash flow for the periods indicated in conformity with GAAP applied on a
basis consistent with prior years (except for changes with which the Borrower’s
Accountants shall concur and that shall have been disclosed in the notes to the
Financial Statements) and (ii) the examination by the Borrower’s Accountants in
connection with such Consolidated Financial Statements has been made in
accordance with generally accepted auditing standards, and accompanied by a
certificate stating that in the course of the regular audit of the business of
the Borrower and its Subsidiaries such accounting firm has obtained no knowledge
that a Default or Event of Default has occurred and is continuing, or, if in the
opinion of such accounting firm, a Default or Event of Default has occurred and
is continuing, a statement as to the nature thereof.

     

    (d)           Compliance Certificate.
Together with each delivery of any Financial Statement pursuant to clauses (a), (b) or (c) above, a certificate of a
Responsible Officer of the Borrower (each, a “Compliance Certificate”) (i)
showing in reasonable detail the calculations used in demonstrating compliance
with each of the financial covenants contained in Article V for the applicable Test
Period and (ii) stating that no Default or Event of Default has occurred and is
continuing or, if a Default or an Event of Default has occurred and is
continuing, stating the nature thereof and the action that the Borrower proposes
to take with respect thereto.

     

    
      
        
        

      

      
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    (e)           Corporate Chart and Other Collateral
Updates.  Together with each delivery of any Financial
Statement pursuant to clause
(b) or (c)
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
(e)) is true, correct, complete and current as of the date of such
Financial Statement and (ii) a certificate of a Responsible Officer of the
Borrower in form and substance 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 (e) 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).

     

    (f)           Business Plan.  Not
later than 45 days after the end of each Fiscal Year, and containing
substantially the types of financial information contained in the Budgets, (i)
the annual business plan of the Borrower and its Subsidiaries for the next
succeeding Fiscal Year approved by the Board of Directors of the Borrower, (ii)
forecasts prepared by management of the Borrower for each fiscal month in the
next succeeding Fiscal Year and (iii) forecasts prepared by management of the
Borrower for each of the succeeding Fiscal Years through the Fiscal Year in
which the Termination Date is scheduled to occur, including, in each instance
described in clauses (ii) and
(iii) above, (x) a projected year-end income statement and (y) a
statement of all of the material assumptions on which such forecasts are
based.

     

    (g)           Management Letters,
Etc.  Within 10 Business Days after receipt thereof by any Loan
Party, copies of each final management letter, exception report or similar
letter or report received by such Loan Party from its independent certified
public accountants (including the Borrower’s Accountants).

     

    (h)           Intercompany Loan
Balances.  Together with each delivery of any Financial
Statement pursuant to clause
(a) above, a summary of the outstanding balance of all intercompany
Indebtedness as of the last day of the fiscal month covered by such Financial
Statement, certified by a Responsible Officer of the Borrower.

     

    (i)           Cash Flow
Forecasts.  No later than Thursday of every other calendar
week, commencing May 6, 2010, a rolling 13-week cash flow projection of the
Borrower and its Subsidiaries substantially in the form of the Initial Cash Flow
Forecast (each, a “Cash Flow
Forecast”), which shall be reasonably satisfactory to the Administrative
Agent, certified by a Responsible Officer of the Borrower as being prepared
based upon good faith estimates and assumptions that are believed by senior
management of Borrower to be reasonable at the time made and as of the date of
delivery that such Responsible Officer is not aware of (x) any information
contained in such cash flow forecast which is false or materially misleading or
(y) any omission of information which causes such cash flow forecast to be false
or materially misleading (it being understood that any such forecasts are
estimates and that actual results may vary materially from such
forecasts).

     

    (j)           Variance
Reports.  No later than Thursday of every other calendar week,
commencing May 6, 2010, a variance report in form reasonably satisfactory to the
Administrative Agent, showing on a line item basis the percentage and dollar
variance of actual cash disbursements and cash receipts for the prior week from
the amounts set forth for each such period in the most recent Cash Flow Forecast
and a narrative analysis of each material variance for the prior two week
period.

     

    
      
        
        

      

      
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    (k)           Bankruptcy
Documents.  Substantially contemporaneously upon such filing
with the Bankruptcy Court, copies of all orders, pleadings and motions,
applications, judicial information, financial information, plan of
reorganization or liquidation and/or any disclosure statement related to such
plan and other documents to be filed by or on behalf of the Borrower or any of
its Subsidiaries with the Bankruptcy Court or the United States Trustee in the
Cases, or to be distributed by or on behalf of the Borrower or any of its
Subsidiaries to any Committee (other than (i) pleadings, motions, applications
or other filings which would reasonably expected to be immaterial to the
Administrative Agent and the Lenders, (ii) emergency pleadings, motions or other
filings where, despite such Debtor’s best efforts, such contemporaneous delivery
is impracticable, which shall be delivered as soon as commercially practicable
after the filing or distribution thereof and (iii) copies of pleadings and
motions in connection with the Facilities, which shall be delivered as soon as
commercially practicable in advance of the filing or distribution
thereof).

     

    Section
6.2           Default
Notices

     

    As soon
as practicable, and in any event within 5 Business Days after a Responsible
Officer of any Loan Party has actual knowledge of the existence of any Default,
Event of Default or other event having had a Material Adverse Effect or having
any reasonable likelihood of causing or resulting in a Material Adverse Change,
the Borrower shall give the Administrative Agent notice specifying the nature of
such Default or Event of Default or such other event, including the anticipated
effect thereof, which notice, if given by telephone, shall be promptly confirmed
in writing on the next Business Day.

     

    Section
6.3           Litigation

     

    Promptly
after the commencement thereof, the Borrower shall give the Administrative Agent
written notice of the commencement of all actions, suits and proceedings before
any domestic or foreign Governmental Authority or arbitrator affecting the
Borrower or any of Subsidiary of the Borrower that (i) seeks injunctive or
similar relief or (ii) in the reasonable judgment of the Borrower or such
Subsidiary, expose the Borrower or such Subsidiary to liability that would have
a Material Adverse Effect.

     

    Section
6.4           Asset
Sales

     

    Prior to
the consummation of any Asset Sale which would require a mandatory prepayment to
be made pursuant to Section 2.8, the Borrower shall use commercially reasonable
efforts to send the Administrative Agent a notice (i) describing such Asset
Sale, (ii) stating the estimated Net Cash Proceeds anticipated to be received by
the Borrower or any of its Subsidiaries and (iii) describing any reinvestment in
connection therewith contemplated pursuant to the terms of Section
2.8(a).

     

    Section
6.5           SEC
Filings; Press Releases

     

    Promptly
after the sending or filing thereof, the Borrower shall send the Administrative
Agent copies of (a) all reports that the Borrower sends to its security holders
generally, (b) all reports and registration statements that the Borrower or any
of its Subsidiaries files with the Securities and Exchange Commission or any
national or foreign securities exchange or the National Association of
Securities Dealers, Inc. (it being understood that reports on Form 8-K, Form
10-Q or Form 10-K shall be deemed delivered at such time as the same are
publicly available on EDGAR) and (c) all other statements concerning material
changes or developments in the business of such Loan Party made available by any
Loan Party to the public or any other creditor (in each case, unless such
information has been disclosed pursuant to the terms of this
Agreement).

     

    
      
        
        

      

      
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    Section
6.6           Labor
Relations

     

    Promptly
after becoming aware of the same, the Borrower shall give the Administrative
Agent written notice of (a) any labor dispute to which the Borrower or any of
its Subsidiaries is or may become a party, including any strikes, lockouts or
other disputes relating to any of such Person’s plants and other facilities
which could reasonably be expected to have a Material Adverse Effect, and (b)
any Worker Adjustment and Retraining Notification Act or related liability
incurred with respect to the closing of any plant or other facility of any such
Person.

     

    Section
6.7           Tax
Returns

     

    Promptly
following the reasonable request of any Lender, through the Administrative
Agent, the Borrower shall provide copies of (a) all federal and all material
state and local tax returns and reports filed by the Borrower or any Subsidiary
of the Borrower in respect of taxes measured by income (excluding sales, use and
like taxes) and (b) written notices or other information reasonably requested by
any Lender, through the Administrative Agent, with respect to any actual audits
of the tax returns described in clause (a)
above.

     

    Section
6.8           Insurance

     

    Within 90
days after the end of each Fiscal Year, the Borrower shall furnish the
Administrative Agent with (a) a report in form and substance reasonably
satisfactory to the Administrative Agent and the Lenders outlining all material
insurance coverage maintained as of the date of such report by the Borrower or
any Subsidiary of the Borrower and the duration of such coverage and (b) an
insurance broker’s statement that all premiums then due and payable with respect
to such coverage have been paid and confirming that the Administrative Agent has
been named as loss payee or additional insured, as applicable.

     

    Section
6.9           ERISA
Matters

     

    The
Borrower shall furnish the Administrative Agent (with sufficient copies for each
of the Lenders) each of the following:

     

    (a)           promptly
and in any event within 30 days after the Borrower, any Subsidiary of the
Borrower or any ERISA Affiliate knows or has reason to know that any ERISA Event
has occurred, written notice describing such event;

     

    (b)           promptly
and in any event within 10 days after the Borrower, any Subsidiary of the
Borrower or any ERISA Affiliate knows or has reason to know that a request for a
minimum funding waiver under Section 412 of the Code has been filed with
respect to any Title IV Plan, a written statement of a Responsible Officer of
the Borrower describing such ERISA Event or waiver request and the action, if
any, the Borrower, its Subsidiaries and ERISA Affiliates propose to take with
respect thereto and a copy of any notice filed with the PBGC or the IRS
pertaining thereto;

     

    (c)           simultaneously
with the date that the Borrower, any Subsidiary of the Borrower or any ERISA
Affiliate files a notice of intent to terminate any Title IV Plan, if such
termination would require material additional contributions in order to be
considered a standard termination within the meaning of Section 4041(b) of
ERISA, a copy of each notice; and

     

    
      
        
        

      

      
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    (d)           promptly
following receipt thereof, copies of any documents described in Sections 101(k)
or 101(l) of ERISA that the Borrower, any Subsidiary of the Borrower or any
ERISA Affiliate may request with respect to any Multiemployer Plan; provided, that if the
Borrower, Subsidiaries or ERISA Affiliates have not requested such documents or
notices from the administrator or sponsor of the applicable Multiemployer Plan,
then, upon reasonable request of the Administrative Agent, the Borrower,
Subsidiaries and/or their ERISA Affiliates shall promptly make a request for
such documents or notices from such administrator or sponsor and the Borrower
shall provide copies of such documents and notices to the Administrative Agent
(on behalf of each Lender) promptly after receipt thereof.

     

    Section
6.10        Environmental
Matters

     

    The
Borrower shall provide the Administrative Agent promptly and in any event within
10 days after the Borrower or any Subsidiary of the Borrower obtaining knowledge
of any of the following, written notice of each of the following:

     

    (a)           that
any Loan Party is or may be liable to any Person as a result of a Release or
threatened Release that could reasonably be expected to subject such Loan Party
to Environmental Liabilities and Costs exceeding $1,000,000;

     

    (b)           the
receipt by any Loan Party of notification that any real or personal property of
such Loan Party is or is reasonably likely to be subject to any Environmental
Lien;

     

    (c)           the
receipt by any Loan Party of any notice of violation of or potential liability
under, or knowledge by such Loan Party that there exists a condition that could
reasonably be expected to result in a violation of or liability under, any
Environmental Law, except for violations and liabilities the consequence of
which, in the aggregate, would not be reasonably likely to subject the Loan
Parties collectively to Environmental Liabilities and Costs exceeding
$1,000,000;

     

    (d)           the
commencement of any judicial or administrative proceeding or investigation
alleging a violation of or liability under any Environmental Law, that, in the
aggregate, if adversely determined, would have a reasonable likelihood of
subjecting the Loan Parties collectively to Environmental Liabilities and Costs
exceeding $1,000,000;

     

    (e)           any
proposed acquisition of stock, assets or real estate, any proposed leasing of
property or any other action by any Loan Party or any of its Subsidiaries other
than those the consequences of which, in the aggregate, would not have a
reasonable likelihood of subjecting the Loan Parties collectively to
Environmental Liabilities and Costs exceeding $1,000,000;

     

    (f)           any
proposed action by any Loan Party or any of its Subsidiaries or any proposed
change in Environmental Laws that, in the aggregate, have a reasonable
likelihood of requiring the Loan Parties to obtain additional environmental,
health or safety Permits or make additional capital improvements to obtain
compliance with Environmental Laws that, in the aggregate, would have cost
$1,000,000 or more or that shall subject the Loan Parties to additional
Environmental Liabilities and Costs exceeding $1,000,000 to the extent not fully
covered by insurance; and

     

    (g)           upon
written request by any Lender through the Administrative Agent, a report
providing an update of the status of any environmental, health or safety
compliance, hazard or liability issue identified in any notice or report
delivered pursuant to this Agreement.

     

    
      
        
        

      

      
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    Section
6.11        Borrowing Base Deliverables
and Determination

     

    (a)           The
Borrower shall deliver, not later than 3 Business Days after the end of the last
day of each week, a Borrowing Base Certificate as of the end of such period
(containing available updated figures for Eligible Receivables) executed by a
Responsible Officer of the Borrower.

     

    (b)           The
Borrower shall conduct, or shall cause to be conducted, at its reasonable
expense and upon the request of the Administrative Agent (provided that so long as no
Default or Event of Default has occurred and is continuing, such request shall
be made no more than twice in any twelve consecutive months), and, promptly upon
completion, present to the Administrative Agent for approval, such appraisals by
third party appraisers reasonably satisfactory to the Administrative Agent,
investigations and reviews as the Administrative Agent shall request for the
purpose of determining the Borrowing Base (it being understood that the Truck
appraisal conducted in September 2009 and previously delivered to the
Administrative Agent shall satisfy this requirement for the six month period
ending March 30, 2010 and, absent the continuation of a Default or Event of
Default, no inventory appraisal shall be required during the six months
following the Closing Date).  The Borrower shall promptly furnish to
the Administrative Agent any information that the Administrative Agent may
reasonably request regarding the determination and calculation of the Borrowing
Base including correct and complete copies of any invoices, underlying
agreements, instruments or other documents and the identity of all Account
Debtors in respect of Accounts referred to in the Borrowing Base. 

     

    (c)           The
Borrower shall promptly notify the Administrative Agent in writing in the event
that at any time the Borrower receives or otherwise gains knowledge (i) that the
outstanding Revolving Outstandings exceed the Borrowing Base as a result of a
decrease therein, in which case such notice shall also include the amount of
such excess or (ii) that Available Credit is at any time less than
$3,000,000.

     

    (d)           The
Administrative Agent may, at the Borrower’s sole reasonable cost and expense,
make test verifications of the Accounts and physical verifications of the
Inventory in any manner and through any medium that the Administrative Agent
considers advisable, which such verifications shall be made at the reasonable
discretion of the Administrative Agent during normal business hours and, as long
as no Default or Event of Default has occurred and is continuing, following
reasonable prior notice to the Borrower, and the Borrower shall furnish all such
assistance and information as the Administrative Agent may reasonably require in
connection therewith.  At any time and from time to time, promptly
following the Administrative Agent’s reasonable request and at the reasonable
expense of the Borrower, the Borrower shall cause independent public accountants
or others reasonably satisfactory to the Administrative Agent to furnish to the
Administrative Agent reports showing reconciliations, aging and test
verifications of, and trial balances for, the Accounts.  Additionally,
the Administrative
Agent may at any time (with prior notice to the Borrower), at the
Borrower’s sole cost and expense, in the Administrative
Agent’s own name, in the name of a nominee of the Administrative Agent, or in
the name of any Borrowing Base Contributor communicate (by mail, telephone,
facsimile or otherwise) with the Account Debtors of any such Borrowing Base
Contributor, parties to contracts with any such Borrowing Base Contributor and
obligors in respect of Instruments of any such Borrowing Base Contributor to
verify with such Persons, to the Administrative Agent’s satisfaction, the
existence, amount, terms of, and any other matter relating to, Accounts,
Instruments, chattel paper, payment intangibles and/or other
receivables. 

     

    
      
        
        

      

      
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    (e)           The
Borrower shall permit the Administrative Agent or any of its Affiliates (or one
of their representatives), at the Borrower’s sole reasonable cost and expense,
to conduct field examinations of the Borrowing Base Collateral, which such
examinations shall be made at the reasonable discretion of the Administrative
Agent during normal business hours and, as long as no Default or Event of
Default has occurred and is continuing, following reasonable prior notice to the
Borrower, provided that
so long as no Default or Event of Default has occurred and is continuing, such
examinations shall not be conducted more than four times in any twelve month
period, provided
further that the field exam performed in advance of the Closing Date
shall constitute one field exam for the purposes of this Section
6.11(e).

     

    (f)           Within
10 Business Days of the end of each calendar month, as of the period then ended,
all delivered electronically in a text formatted file reasonably acceptable to
the Administrative Agent:

     

    (i)           a
detailed aging report of the Borrowing Base Contributors’ Accounts in a form
reasonably acceptable to the Administrative Agent;

     

    (ii)          a
schedule detailing the Borrowing Base Contributors’ Inventory by unit, in form
reasonably satisfactory to the Administrative Agent, by location (any Inventory
located with a third party under any consignment or Collateral Access
Agreement), by class (raw material, work-in-process and finished goods), which
Inventory shall be valued at the lower of cost (determined on a first-in,
first-out basis) or market and adjusted for Eligibility Reserves as the
Administrative Agent has previously indicated to the Borrower are deemed by the
Administrative Agent to be appropriate;

     

    (iii)         a
worksheet of calculations prepared by the Borrowing Base Contributors to
determine Eligible Receivables and Eligible Inventory, such worksheets detailing
the Accounts and Inventory excluded from Eligible Receivables and Eligible
Inventory and the reason for such exclusion with respect to the last Borrowing
Base Certificate delivered for such month;

     

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

     

    (v)          a
reconciliation of the loan balance per the Borrowing Base Contributors’ general
ledger to the loan balance under this Agreement.

     

    (vi)         a
schedule and aging of the Borrowing Base Contributors’ accounts payable,
delivered electronically in a text formatted file reasonably acceptable to the
Administrative Agent.

     

    (g)           At
such other times as may be requested by the Administrative Agent, a list of all
customer addresses, delivered electronically in a text formatted file reasonably
acceptable to the Administrative Agent.

     

    (h)           Promptly
upon the Administrative Agent’s reasonable 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;

     

    
      
        
        

      

      
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    (ii)          copies
of purchase orders, invoices, and shipping and delivery documents in connection
with any Inventory or Equipment purchased by any Loan Party; and

     

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

     

    Section
6.12        Other
Information

     

    The
Borrower shall promptly provide the Administrative Agent or any Lender with such
other information respecting the business, properties, condition, financial or
otherwise, or operations of the Borrower or any Subsidiary of the Borrower as
the Administrative Agent or such Lender through the Administrative Agent may
from time to time reasonably request (excluding privileged information and
information otherwise subject to confidentiality restrictions whereby such
restrictions prohibit dissemination to the Administrative Agent and the
Lenders).

     

    ARTICLE
VII

    Affirmative
Covenants

     

    Each Loan
Party agrees with the Lenders, the Issuers and the Administrative Agent to each
of the following, as long as any Obligation or any Commitment remains
outstanding:

     

    Section
7.1           Preservation
of Corporate Existence, Etc.

     

    Each Loan
Party shall, and shall cause each of its Subsidiaries to, preserve and maintain
(a) its legal existence and (b) except to the extent any failure to preserve and
maintain the same could not reasonably be expected to have, individually or in
the aggregate, a Material Adverse Effect, its rights (charter and statutory) and
franchises, except, in each case, as permitted by Section 8.3, Section 8.4 and
Section 8.7.

     

    Section
7.2           Compliance
with Laws, Etc.

     

    Each Loan
Party shall, and shall cause each of its Subsidiaries to (and in the case of a
Debtor, subject to the effect of the Cases) comply with all applicable
Requirements of Law, Contractual Obligations (other than the Related Documents
or other Contractual Obligations of which the Loan Parties or any Subsidiary is
in breach as a direct or indirect result of the Cases) and Permits, except where
the failure so to comply could not reasonably be expected to have, individually
or in the aggregate, a Material Adverse Effect.

     

    Section
7.3           Conduct of
Business

     

    Subject
to the effect of (or changes as a result of) the Cases, each Loan Party shall,
and shall cause each of its Subsidiaries to, (a) conduct its business in the
ordinary course and consistent with past practice and (b) use its reasonable
efforts, in the ordinary course and consistent with past practice, to preserve
its business and the goodwill and business of the customers, advertisers,
suppliers and others having business relations with the Borrower or any of its
Subsidiaries, except in each case where the failure to comply with the covenants
in each of clauses (a)
and (b) above could not
reasonably be expected to have, individually or in the aggregate, a Material
Adverse Effect.

     

    
      
        
        

      

      
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    Section
7.4           Payment of
Taxes, Etc.

     

    Each Loan
Party shall, and shall cause each of its Subsidiaries to, pay and discharge
before the same shall become delinquent, all lawful governmental claims, taxes,
assessments, charges and levies, except (a) where contested in good faith, by
proper proceedings and adequate reserves therefor have been established on the
books of the Borrower or the appropriate Subsidiary in conformity with GAAP or
(b) to the extent the aggregate liability of the Borrower or such Subsidiary
does not exceed $1,000,000 at any time or (c) to the extent stayed pursuant to
the Cases.

     

    Section
7.5           Maintenance
of Insurance

     

    Each Loan
Party shall (a) maintain for itself, and each of its Subsidiaries, insurance
with responsible and reputable insurance companies or associations in such
amounts and covering such risks as is usually carried by companies engaged in
similar businesses and owning similar properties in the same general areas in
which the Borrower or such Subsidiary operates (including self insurance), and
such other insurance as may be reasonably requested by the Requisite Lenders,
and, in any event, all insurance required by any Collateral Documents and (b)
cause all such insurance relating to any Loan Party to name the Administrative
Agent on behalf of the Secured Parties as additional insured or loss payee, as
appropriate, and to provide that no cancellation, material addition in amount or
material change in coverage shall be effective until after 30 days’ written
notice thereof to the Administrative Agent.

     

    Section
7.6           Access

     

    Each Loan
Party shall, and shall cause each of its Subsidiaries to, from time to time
permit the Administrative Agent and the Lenders, or any agents or
representatives thereof, within 2 Business Days after written notification of
the same (except that during the continuance of an Event of Default, no such
notice shall be required) to (a) examine and make copies of and abstracts from
the records and books of account of the Borrower and each Subsidiary of the
Borrower, (b) visit the properties of the Borrower and each Subsidiary of the
Borrower, (c) discuss the affairs, finances and accounts of the Borrower and
each Subsidiary of the Borrower with any of their respective officers or
directors, (d) communicate directly with any of its certified public accountants
(including the Borrower’s Accountants), provided that in the case of
clause (d), so long as
no Default or Event of Default has occurred and is continuing, a Responsible
Officer of the Borrower or such Subsidiary shall be invited to participate in
such communication (but the participation or attendance of such Responsible
Officer shall not be required) and (e) provide to the Administrative Agent and
the Lenders (or, in each case, any of their respective representatives, advisors
or independent contractors) access to information (including historical
information) and personnel, including, without limitation, regularly scheduled
meetings with senior management and other advisors to the Borrower and its
Subsidiaries, in each case during normal business hours, and provide to access
to all information any that the Administrative Agent or its financial advisor
shall reasonably request in good faith from time to time, provided that so long as no
Default or Event of Default has occurred and is continuing, the Borrower shall
reimburse the expenses of the Administrative Agent related to such visit no more
than two times in any twelve month period.  The Borrower and its
Subsidiaries shall authorize its certified public accountants (including the
Borrower’s Accountants) to disclose to the Administrative Agent or any Lender
any and all financial statements and other information of any kind, as the
Administrative Agent or any Lender reasonably requests and that such accountants
may have with respect to the business, financial condition, results of
operations or other affairs of the Borrower or any Subsidiary of the
Borrower.

     

    Section
7.7           Update
Calls.

     

    Promptly
following the reasonable request by the Administrative Agent at such times as
the Borrower and the Administrative Agent shall agree (and at least once per
calendar month), the Borrower shall host a conference call (with a question and
answer period) with members of senior management of the Borrower as the Borrower
and Administrative Agent deem appropriate and the Administrative Agent and the
Lenders and their respective representatives and advisors to discuss the
performance of the business, strategic alternatives and other issues as the
Administrative Agent may reasonably request.

     

    
      
        
        

      

      
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    Section
7.8           Keeping of
Books

     

    Each Loan
Party shall, and shall cause each of its Subsidiaries to, keep, proper books of
record and account, in which full and correct entries shall be made in
conformity with GAAP of all financial transactions and the assets and business
of the Borrower and each such Subsidiary.

     

    Section
7.9           Maintenance
of Properties, Etc.

     

    Each Loan
Party shall, and shall cause each of its Subsidiaries to, maintain and preserve
(a) in good working order and condition all of its properties necessary in the
conduct of its business (subject to ordinary wear and tear, casualty and
condemnation), (b) all rights, permits, licenses, approvals and privileges
(including all Permits) used or useful or necessary in the conduct of its
business and (c) all registered patents, trademarks, trade names, copyrights and
service marks with respect to its business, except, in each case (i)
dispositions permitted pursuant to Section 8.4 or (ii) where failure to so
maintain and preserve the items set forth in clauses (a), (b) and (c) above could not
reasonably be expected to have, individually or in the aggregate, a Material
Adverse Effect.

     

    Section
7.10        Application of
Proceeds

     

    Each Loan
Party shall (and, to the extent distributed to them by the Borrower, each Loan
Party) shall use the entire amount of the proceeds of the Loans as provided in
Section 4.12.

     

    Section
7.11        Environmental

     

    Each Loan
Party shall, and shall cause each of its Subsidiaries to, comply in all material
respects with Environmental Laws and, without limiting the foregoing, the
Borrower shall, at its sole cost and expense, upon receipt of any notification
or otherwise obtaining knowledge of any Release or other event that has any
reasonable likelihood of any of the Borrower or any Subsidiary of the Borrower
incurring Environmental Liabilities and Costs in excess of $1,000,000 in the
aggregate, (a) conduct, or pay for consultants to conduct, tests or assessments
of environmental conditions at such operations or properties, including the
investigation and testing of subsurface conditions and (b) take such Remedial
Action and undertake such investigation or other action as required by
Environmental Laws or as any Governmental Authority requires or as is
appropriate and consistent with good business practice to address the Release or
event and otherwise ensure compliance with Environmental Laws.

     

    Section
7.12        Additional Collateral and
Guaranties

     

    Except as
otherwise expressly set forth in the Loan Documents, to the extent not delivered
to the Administrative Agent on or before the Closing Date (including in respect
of after-acquired property and Persons that become Subsidiaries of any Loan
Party after the Closing Date (other than any Excluded Joint Venture)), each Loan
Party agrees promptly to do, or cause each of its Subsidiaries to do, each of
the following, unless otherwise agreed by the Administrative Agent:

     

    (a)           cause
each Domestic Subsidiary formed or acquired after the Closing Date in accordance
with the terms of this Agreement to become a Guarantor by executing a joinder
agreement in a form mutually agreed to by the Administrative Agent and the
Borrower on or before the 15th Business Day following the date of such
acquisition or formation, it being understood and agreed that upon execution and
delivery thereof, each such Person (i) shall automatically become a Guarantor
hereunder and thereupon shall have all of the rights, benefits, duties, and
obligations in such capacity under the Loan Documents and (ii) 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;


     

    
      
        
        

      

      
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    (b)           deliver
to the Administrative Agent such duly-executed joinder and amendments to the
Pledge and Security Agreement and, if applicable, other Collateral Documents, in
each case in form and substance reasonably satisfactory to the Administrative
Agent and as the Administrative Agent deems necessary or advisable in order to
carry out the terms and conditions of this Agreement and the other Loan
Documents and to ensure creation, perfection and priority of the Liens created
or intended to be created by the Collateral Documents or the Orders, all at the
reasonable expense of the Loan Parties;

     

    (c)           with
respect to any property (other than Real Property or property not otherwise
constituting Collateral) acquired after the Closing Date by any Loan Party,
promptly (i) execute and deliver to the Administrative Agent such amendments to
the Collateral Documents or other documents as the Administrative Agent deems
necessary or advisable to grant to the Administrative Agent, for the benefit of
the relevant Lenders, a security interest in such property and (ii) take all
actions necessary or advisable to grant to the Administrative Agent, for the
benefit of the relevant Lenders, a perfected first priority security interest in
such property (subject only to Liens permitted pursuant to Section 8.2),
including the filing of Uniform Commercial Code financing statements in such
jurisdictions as may be required by any Collateral Document or by law or as may
be requested by the Administrative Agent;

     

    (d)           with
respect to any fee interest in any Real Property acquired after the Closing Date
by any Loan Party with a net book value in excess of $100,000, promptly (1)
execute and deliver a first priority Mortgage, in favor of the Administrative
Agent, for the benefit of the relevant Lenders, covering such real property
(subject only to Liens permitted pursuant to Section 8.2) and (2) if requested
by the Administrative Agent, provide the relevant Lenders with (w) title and
extended coverage insurance covering such real property in an amount at least
equal to the purchase price of such real property (or such other amount as shall
be reasonably specified by the Administrative Agent), provided that this clause (w) shall only be
applicable to any fee interest in any Real Property with a net book value in
excess of $700,000, (x) if in possession of the Loan Party, a current ALTA
survey thereof, together with a surveyor’s certificate (or comparable documents,
if any, in any applicable jurisdiction), (y) any consents or estoppels
reasonably deemed necessary or advisable by the Administrative Agent in
connection with such Mortgage, each of the foregoing in form and substance
reasonably satisfactory to the Administrative Agent, provided that such
obligations under this clause
(y) shall be limited to the Borrower’s use of commercially reasonable
efforts and (z) an opinion of local counsel in the state where such Real
Property is located in form and substance reasonably satisfactory to the
Administrative Agent;

     

    (e)           deliver
to the Administrative Agent all certificates, instruments and other documents
representing all Pledged Stock, Pledged Debt Instruments and all other Stock,
Stock Equivalents and other debt Securities being pledged pursuant to the
joinders and amendments executed pursuant to Section 7.12(b), together with (i)
in the case of certificated Pledged Stock and other certificated Stock and Stock
Equivalents, undated stock powers endorsed in blank and (ii) in the case of
Pledged Debt Instruments and other certificated debt Securities, endorsed in
blank, in each case executed and delivered by a Responsible Officer of such Loan
Party or such Subsidiary thereof, as the case may be;

     

    (f)           to
take such other actions necessary or advisable to carry out the terms and
conditions of this Agreement and the other Loan Documents and to ensure
creation, perfection and priority of the Liens created or intended to be created
by the Collateral Documents or the Orders, all at the reasonable expense of the
Loan Parties, including the filing of UCC financing statements in such
jurisdictions as may be required by the Collateral Documents or by law or as may
be reasonably requested by the Administrative Agent; and

     

    
      
        
        

      

      
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    (g)           if
reasonably requested by the Administrative Agent, deliver to the Administrative
Agent legal opinions relating to the matters described above, which opinions
shall be in form and substance, and from counsel, reasonably satisfactory to the
Administrative Agent.

     

    Section
7.13        Control Accounts; Approved
Deposit Accounts

     

    (a)           Each
Loan Party shall (i) subject to clause (f) below, deposit in
an Approved Deposit Account all cash they receive, (ii) subject to clause (f) below, not
establish or maintain any Securities Account that is not a Control Account and
(iii) not establish or maintain any Deposit Account other than with a Deposit
Account Bank; provided,
however, that the Borrower and each of its Subsidiaries may establish or
maintain (x) Permitted Utility Deposit Accounts, (y) payroll, withholding tax
and other fiduciary accounts, including accounts for which the funds on deposit
therein pertain to Liens permitted under clause (c) of the definition
of “Customary Permitted
Liens” (provided
that neither the Borrower nor any such Subsidiary may maintain funds in any such
account in excess of amounts which are actually accrued (or, in the case of
fiduciary accounts, otherwise required to be maintained therein) to its
employees or the relevant Governmental Authority or other beneficiary of such
fiduciary account) and (z) Excluded Deposit Accounts, provided further that (1) all
deposits into and balances maintained in the Excluded Deposit Accounts shall be
in the ordinary course of business and consistent with past practices; provided, that no proceeds of
Loans may be deposited into an Excluded Deposit Account (other than to the
extent necessary to repay any amounts then overdrawn) and (2) to the extent the
aggregate balances in all Excluded Deposit Accounts at any time exceed $300,000
for a period of longer than 3 Business Days the Borrower shall, or shall cause
the relevant Subsidiary to, either (A) cause such amounts in excess of $300,000
to, within 1 Business Day, be transferred to an Approved Deposit Account or (B)
cause one or more Excluded Deposit Accounts to become an Approved Deposit
Account so that, after giving effect to the actions in clauses (A) and/or (B) the aggregate balance on
deposit in all Excluded Deposit Accounts shall not at any time exceed $300,000
for a period longer than 3 Business Days.

     

    (b)           Each
Loan Party shall, and shall cause each of its Subsidiaries to, (i) subject to
clause (a) above,
instruct each Account Debtor or other Person obligated to make a payment to any
of them under any Account or General Intangible to make payment, or to continue
to make payment, to an Approved Deposit Account and (ii) subject to clause (a) above, deposit in
an Approved Deposit Account immediately upon receipt all Proceeds of such
Accounts and General Intangibles received by the Borrower or any of its
Subsidiaries from any other Person.

     

    (c)           In
the event (i) the Borrower, any Subsidiary of the Borrower or any Deposit
Account Bank shall, after the Closing Date, terminate an agreement with respect
to the maintenance of an Approved Deposit Account for any reason, (ii) the
Administrative Agent shall demand such termination as a result of the failure of
a Deposit Account Bank to comply with the terms of the applicable Deposit
Account Control Agreement or (iii) the Administrative Agent determines in its
sole discretion, exercised reasonably and in good faith, that the financial
condition of a Deposit Account Bank has materially deteriorated, the Borrower
shall, and shall cause each Subsidiary of the Borrower to, notify all of their
respective obligors that were making payments to such terminated Approved
Deposit Account to make all future payments to another Approved Deposit Account
(such notification to occur with the next billing cycle after the Administrative
Agent has made such determination).

     

    
      
        
        

      

      
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    (d)           In
the event (i) the Borrower, any Subsidiary of the Borrower or any Approved
Securities Intermediary shall, after the Closing Date, terminate an agreement
with respect to the maintenance of a Control Account for any reason, (ii) the
Administrative Agent shall demand such termination as a result of the failure of
an Approved Securities Intermediary to comply with the terms of the applicable
Securities Account Control Agreement or (iii) the Administrative Agent
determines in its sole discretion, exercised reasonably in good faith, that the
financial condition of an Approved Securities Intermediary has materially
deteriorated, the Borrower shall, and shall cause each Subsidiary of the
Borrower to, notify all of its obligors that were making payments to such
terminated Control Account to make all future payments to another Control
Account (such notification to occur with the next billing cycle after the
Administrative Agent has made such determination).

     

    (e)           The
Administrative Agent may establish one or more Cash Collateral Accounts with
such depositaries and Securities Intermediaries as it in its sole discretion
shall determine; provided,
however, that no Cash Collateral Account shall be established with
respect to the assets of any Excluded Foreign Subsidiary.  The
Borrower agrees that each such Cash Collateral Account shall be under the sole
dominion and control of the Administrative Agent and that the Administrative
Agent shall be the Entitlement Holder with respect to each such Cash Collateral
Account that is a Securities Account and the only Person authorized to give
Entitlement Orders with respect to each such Securities
Account.  Without limiting the foregoing, funds on deposit in any Cash
Collateral Account may be invested (but the Administrative Agent shall be under
no obligation to make any such investment) in Cash Equivalents at the direction
of the Administrative Agent and, except during the continuance of an Event of
Default, the Administrative Agent agrees with the Borrower to issue Entitlement
Orders for such investments in Cash Equivalents as requested by the Borrower;
provided, however, that
the Administrative Agent shall not have any responsibility for, or bear any risk
of loss of, any such investment or income thereon.  Interest or
profits, if any, on such investments shall accumulate in such account for the
benefit of the Borrower and shall such interest profits shall be applied in
accordance with the terms of this Agreement.  None of the Borrower,
any Subsidiary of the Borrower or any other Loan Party or Person claiming on
behalf of or through the Borrower, any Subsidiary of the Borrower or any other
Loan Party shall have any right to demand payment of any funds held in any Cash
Collateral Account at any time prior to the termination of all outstanding
Letters of Credit and the payment in full of all then outstanding and payable
monetary Obligations.  The Administrative Agent shall apply all funds
on deposit in a Cash Collateral Account as provided in Section
2.8(d).

     

    (f)           The
provisions of this Section 7.13 shall not apply to any Excluded Foreign
Subsidiary or Excluded Joint Venture to the extent the same is not otherwise
required to become a Guarantor hereunder.  The Borrower may maintain a
Securities Account with Merrill Lynch which is not a Control Account for the
sole purpose of depositing therein deferred compensation payments on behalf of
its employees and officers in accordance with the Borrower’s existing incentive
plan for which accounts are maintained at Merrill Lynch (or any of its
Affiliates) (the “Merrill
Lynch Account”); provided that the aggregate
amount from time to time on deposit therein shall not exceed an amount equal to
(a) $500,000 minus all distributions or withdrawals made from the Merrill Lynch
Account on or after the Closing Date plus (b) the amount, if any, earned on the
amounts on deposit in the Merrill Lynch Account.

     

    (g)           Each
Loan Party agrees that, notwithstanding anything to the contrary herein or in
any other Loan Document, the Administrative Agent may exercise any rights it has
under any Deposit Account Control Agreement or Securities Account Control
Agreement at any time and shall apply all such amounts in accordance with the
terms of this Agreement.

     

    
      
        
        

      

      
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    Section
7.14        Real Property

     

    Subject
to the effect of the Cases, the Borrower shall, and shall cause each of its
Subsidiaries to, (i) comply with all of their respective obligations under all
Leases now or hereafter held respectively by them except to the extent the
failure to so comply could not reasonably be expect to have a Material Adverse
Effect, (ii) not terminate, modify, amend, cancel, extend or otherwise change in
any manner which could reasonably be expected to have a Material Adverse Effect
any term, covenant or condition of any Lease, (iii) not assign or sublet any
Lease if such assignment or sublet would have a Material Adverse Effect, (iv)
provide the Administrative Agent with a copy of each notice of default under any
Lease received by the Borrower or any Subsidiary of the Borrower promptly after
receipt thereof in respect of any Lease which is material to the condition
(financial or otherwise), business, performance, prospects, operations or
properties of the Borrower or any of its Subsidiaries, (v) deliver to the
Administrative Agent a copy of each notice of default sent by the Borrower or
any Subsidiary of the Borrower under any such Lease simultaneously with its
delivery of such notice under such Lease and (vi) notify the Administrative
Agent promptly after the Borrower or any Subsidiary takes possession of, or
becomes liable under, any new leased premises or Lease (whichever is earlier),
which is material to the condition (financial or otherwise), business,
performance, prospects, operations or properties of the Borrower or any of its
Subsidiaries.

     

    Section
7.15        Payment of
Obligations.

     

    (a)                   In
the case of any Debtor, except in accordance with the Bankruptcy Code or by an
applicable order of the Bankruptcy Court, pay, discharge or otherwise satisfy at
or before maturity or before they become delinquent, as the case may be, (i) all
its post-petition material taxes and other material obligations of whatever
nature that constitute administrative expenses under Section 503(b) of the
Bankruptcy Code in the Cases, except, so long as no material property (other
than money for such obligation and the interest or penalty accruing thereon (or
property with a value not in excess of such amounts)) of any Loan Party is in
danger of being lost or forfeited as a result thereof, no such obligation need
be paid (x) if the amount or validity thereof is currently being contested in
good faith by appropriate proceedings and any required reserves in conformity
with GAAP with respect thereto have been provided on the books of the relevant
Debtor or (y) to the extent the aggregate liability of the Debtors does not
exceed $1,000,000 at any time and (ii) all material obligations arising from
Contractual Obligations entered into after the Petition Date or from Contractual
Obligations entered into prior to the Petition Date and assumed and which are
permitted to be paid post-petition by order of the Bankruptcy Court that has
been entered with the consent of the Administrative Agent.

     

    (b)                   In
the case of any Non-Filer, pay, discharge or otherwise satisfy at or before
maturity or before they become delinquent, as the case may be, all its material
obligations of whatever nature, except (i) where the amount or validity thereof
is currently being contested in good faith by appropriate proceedings and any
required reserves in conformity with GAAP with respect thereto have been
provided on the books of the relevant Non-Filer or (ii) obligations under the
Related Documents.

     

    Section
7.16        Post-Closing
Items

     

    (a)                   On
or prior to the date that is 45 days following the Closing Date (or such later
date as the Administrative Agent may approve in its reasonable discretion),
transfer to and maintain with the Administrative Agent (or any of its
Affiliates) each Concentration and Disbursement Account.

     

    
      
        
        

      

      
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    (b)                   On
or prior to the date that is 30 days following the Closing Date (or such later
date as the Administrative Agent may approve in its reasonable discretion)
deliver to the Administrative Agent:

     

    (i)           for
each Designated Real Property (x) a Mortgagee’s Title Insurance Policy, which
shall (A) be issued at ordinary rates, (B) insure that the Lien granted pursuant
to the Mortgage insured thereby creates a valid first Lien on such Designated
Real Property free and clear of all defects and encumbrances, except for
Customary Permitted Liens, (C) name the Administrative Agent for the benefit of
the Secured Parties as the insured thereunder, (D) be in the form of the ALTA
Loan Policy – 2006 (or equivalent policies), (E) contain
such  endorsements and affirmative coverages as the Administrative
Agent, and be in an amount, shall reasonably request, and (F) be issued by one
or more national title insurance companies  and (y) a copy of all
documents referred to, or listed as exceptions to title, in such title policy
(or policies); and

     

    (ii)          for
each Designated Real Property, evidence that all premiums in respect of each
Mortgagee’s Title Insurance Policy, all recording fees and stamp, documentary,
intangible or mortgage taxes, if any, in connection with the Mortgage have been
paid or delivered to the title company to pay.

     

    (c)                   On
or prior to the date that is 30 days following the Closing Date (or such later
date as the Administrative Agent may approve in its reasonable discretion) use
commercially reasonable efforts to deliver to the Administrative Agent evidence
reasonably satisfactory to the Administrative Agent that each of the mortgages
set forth on Schedule 7.16 (i) (it being understood and agreed, that each such
mortgage currently does not secure, and in the future shall not secure, any
obligations or Indebtedness thereby) has been terminated and released of
record.

     

    ARTICLE
VIII

    Negative
Covenants


     

    Each Loan
Party agrees with the Lenders, the Issuers and the Administrative Agent to each
of the following, as long as any Obligation or any Revolving Commitment remains
outstanding:

     

    Section
8.1          Indebtedness

     

    No Loan
Party shall, nor shall it permit any of its Subsidiaries to, directly or
indirectly create, incur, assume or otherwise become or remain directly or
indirectly liable with respect to any Indebtedness except for the
following:

     

    (a)           the
Obligations (other than in respect of Hedging Contracts not permitted to be
incurred pursuant to Section 8.16) and Guaranty
Obligations in respect thereof;

     

    (b)           Indebtedness
existing on the Petition Date and disclosed on Schedule 8.1;

     

    (c)           Indebtedness
arising from intercompany loans (i) from the Borrower to any Debtor, (ii) from
any Debtor to the Borrower or any other Debtor or (iii) from any Non-Filer to
any Debtor;

     

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


    
      
         


      

      
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    (e)           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;

     

    (f)          
 Guaranty Obligations in respect of Indebtedness that is otherwise
permitted to be incurred pursuant to this Section 8.1;

     

    (g)           Renewals,
extensions, refinancings and refundings of Indebtedness permitted by clause (b)
above or this clause (g); provided, however, that any
such renewal, extension, refinancing or refunding is in an aggregate principal
amount not greater than the principal amount (plus (i) accrued interest in
respect of such Indebtedness and (ii) the reasonable costs incurred by such
Person in connection with such refinancing or refunding, including applicable
premiums, transaction expenses, etc.) of, than the Indebtedness being renewed,
extended, refinanced or refunded;

     

    (h)           Indebtedness
consisting of any obligation to make take or pay or similar payments regardless
of nonperformance by any other party to an agreement incurred in the ordinary
course of business;

     

    (i)      
     Indebtedness in respect of workers’ compensation
claims, self insurance obligations, bid or performance bonds, surety appeal or
similar bonds and completion guarantees provided by the Borrower and the
Subsidiaries in the ordinary course of their business;

     

    (j)        
   Capital Lease Obligations and purchase money Indebtedness
incurred by the Borrower or a Subsidiary of the Borrower to finance the
acquisition of fixed assets; provided, however, that the Capital Expenditure
related thereto is otherwise permitted by Section 5.2 and that the aggregate
outstanding principal amount of all such Capital Lease Obligations and purchase
money Indebtedness shall not exceed $4,500,000 at any time; and

     

    (k)           additional
Indebtedness in an aggregate principal amount not to exceed
$1,000,000.

     

    Section
8.2          Liens,
Etc.

     

    No Loan
Party shall, nor shall it permit any of its Subsidiaries to, create or suffer to
exist, any Lien upon or with respect to any of their respective properties or
assets, whether now owned or hereafter acquired except for the
following:

     

    (a)           Liens
created pursuant to the Loan Documents (including the Orders);

     

    (b)           Liens
existing on the Petition Date and disclosed on Schedule 8.2, provided that (x) no such
Lien is spread to cover any additional property after the Petition Date other
than pursuant to the Orders for purposes of providing “adequate protection”
under the Bankruptcy Code and (y) the amount of Indebtedness secured thereby is
not increased;

     

    (c)           Customary
Permitted Liens on the assets of the Borrower and the Borrower’s
Subsidiaries;

     

    (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 and the other operations of the Borrower and its Subsidiaries taken as
a whole;


    
      
         


      

      
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    (e)           purchase
money Liens granted by the Borrower or any of its Subsidiaries (including the
interest of a lesser under a Capital Lease and purchase money Liens to which any
property is subject at the time, on or after the Closing Date, of the Borrower’s
or such Subsidiary’s acquisition thereof) securing Indebtedness permitted under
Section 8.1(j) and limited in each case to the property purchased with the
proceeds of such purchase money Indebtedness or subject to such Capital Lease
and any improvements, accessions or proceeds thereto or thereof;

     

    (f)            any
Lien securing the renewal, extension, refinancing or refunding of any
Indebtedness secured by any Lien permitted by clause (b) or (e) above or this
clause (f) without any change in the assets subject to such Lien and to the
extent such renewal, extension, refinancing or refunding is permitted by Section
8.1(g);

     

    (g)           Liens
securing Inventory under construction arising from progress or partial payments
by a customer of the Borrower or any Subsidiary relating to such
Inventory;


     

    (h)           Liens
securing Indebtedness permitted under Section 8.1(d), provided that (i) such Liens
are limited to securing only the unpaid premiums under the applicable insurance
policy and (ii) such Liens only encumber the proceeds of the applicable
insurance policy;


     

    (i)           
Liens in favor of Merrill Lynch (or any affiliate thereof which maintains the
Merrill Lynch Account) solely in respect of the Merrill Lynch Account in an
aggregate amount not to exceed the amount of funds on deposit in the Merrill
Lynch Account;


     

    (j)            Liens
securing deductibles, self-insurance, co-payment, co-insurance, retentions or
similar obligations to providers of property, casualty or liability insurance in
the ordinary course of business;


     

    (k)           any
interest or title of a lessor or sublessor under any lease of Real Property
permitted hereunder;


     

    (l)            purported
Liens evidenced by the filing of precautionary UCC financing statements relating
solely to the operating leases of personal property entered into in the ordinary
course of business;


     

    (m)          licenses
of patents, trademarks and other intellectual property rights granted by the
Borrower or any of its Subsidiaries in the ordinary course of business and not
interfering in any respect with the ordinary conduct of the business of Borrower
or such Subsidiary;


     

    (n)           Liens
in respect of the Permitted Utility Deposit Accounts; and


     

    (o)           Liens
on assets securing other obligations if the aggregate amount of the obligations
or liabilities secured thereby does not exceed $1,000,000 at any time
outstanding.


    
      
         


      

      
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    Section
8.3          Investments

     

    No Loan
Party shall, nor shall it permit any of its Subsidiaries to, directly or
indirectly, make or maintain any Investment except for the
following:

     

    (a)           Investments
existing on the Petition Date and disclosed on Schedule 8.3 and any
extensions or renewals thereof, provided however that any such renewal
or extension is in an aggregate principal amount not greater than the principal
amount (and the reasonable costs and expenses incurred by such Person in
connection with such extension or renewal) of the Investment being extended or
renewed;

     

    (b)           Investments
(i) in cash and Cash Equivalents held in compliance with Section 7.13(a) and (ii) of amounts on
deposit in the Merrill Lynch Account; provided that neither the
Merrill Lynch Account or any Investment maintained therein may be a margin
account or held or made on margin;

     

    (c)           Investments
in payment intangibles, chattel paper (each as defined in the UCC) and Accounts,
notes receivable and similar items arising or acquired in the ordinary course of
business of the Borrower and its Subsidiaries;

     

    (d)           Investments
received in settlement of amounts due to the Borrower or any Subsidiary of the
Borrower effected in the ordinary course of business or in connection with the
bankruptcy or reorganization of suppliers and customers or in settlement of
delinquent obligations of, and other disputes with, customers and suppliers
arising in the ordinary course of business;

     

    (e)           Investments
by (i) the Borrower in any Debtor or any Debtor in the Borrower or any other
Debtor, (ii) any Non-Filer in any other Non-Filer or any Debtor and (iii) any
Debtor in any Non-Filer or the Excluded Joint Venture in the ordinary course of
business in an amount not to exceed $2.500.000;

     

    (f)           loans
or advances to employees, officers and directors of the Borrower or any
Subsidiaries of the Borrower in the ordinary course of business other than any
loans or advances that would be in violation of Section 402 of the
Sarbanes-Oxley Act; provided,
however, that the aggregate principal amount of all loans and advances
permitted pursuant to this clause (f) shall not exceed
$250,000 at any time;

     

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

     

    (h)           Investments
in respect of Capital Expenditures permitted under Section 5.2; and

     

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

     

    Section
8.4          Sale of
Assets

     

    No Loan
Party shall, nor shall it permit any of its Subsidiaries to, sell, convey,
transfer, lease or otherwise dispose of, any of their respective assets or any
interest therein (including the sale or factoring at maturity or collection of
any accounts) to any Person, or permit or suffer any other Person to acquire any
interest in any of their respective assets or, except in the case of the
Borrower, issue or sell any shares of their Stock or any Stock Equivalents (any
such disposition being an “Asset Sale”), except for the
following:

     

    (a)           the
sale or disposition of Cash Equivalents or Inventory, in each case in the
ordinary course of business;


    
      
         


      

      
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    (b)           the
sale or disposition of Equipment or Real Estate that has become obsolete or is
replaced in the ordinary course of business or is no longer necessary in or
useful to the business of the Borrower and its Subsidiaries in the ordinary
course of business;

     

    (c)           assignments
and licenses of intellectual property of the Borrower and its Subsidiaries in
the ordinary course of business;

     

    (d)           any
Asset Sale to the Borrower or any Debtor;

     

    (e)           any
Asset Sale of all or any part of the Excluded Joint Venture or the Excluded JV
Equity;

     

    (f)           sales
or dispositions permitted under Section 8.7;

     

    (g)           as
long as no Default or Event of Default is continuing or would result therefrom,
any other Asset Sale for Fair Market Value, payable in cash upon such sale;
provided, however, that
with respect to any such Asset Sale pursuant to this clause (g), (i) the aggregate
consideration received during any Fiscal Year for all such Asset Sales shall not
exceed $500,000 and (ii) an amount equal to all Net Cash Proceeds of such Asset
Sale are applied to the payment of the Obligations as set forth in, and to the
extent required by, Section 2.8;

     

    (h)           a
true lease or sublease of Real Property that (i) does not constitute
Indebtedness, (ii) does not constitute a Sale and Leaseback Transaction and
(iii) is expressly permitted pursuant to the terms of this
Agreement;

     

    (i)      
     the sale or disposition of personal property
(other than 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 $1,000,000;

     

    (j)       
    transfers of condemned property as a result of the
exercise of “eminent” domain or other similar policies to the respective
Governmental Authority or agency that has condemned the same (whether by deed in
lieu of condemnation or otherwise), and transfers of properties or assets that
have been subject to a casualty to the respective insurer of such property as
part of an insurance settlement; and

     

    (k)           sales
or dispositions disclosed on Schedule 8.4.

     

    Section
8.5          Restricted
Payments

     

    No Loan
Party shall, and shall not permit any of its Subsidiaries to, directly or
indirectly, declare, order, pay, make or set apart any sum for any Restricted
Payment except for the following:

     

    (a)           Restricted
Payments by (i) any Subsidiary of the Borrower to the Borrower or any Debtor or
(ii) any Non-Filer to any other Non-Filer; and

     

    (b)          
dividends and distributions declared and paid (i) on the common Stock of the
Borrower and payable only in common Stock of the Borrower or (ii) on the common
Stock of any Subsidiary and payable only in common Stock of such
Subsidiary.


    
      
         


      

      
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    Section
8.6          Prepayment and
Cancellation of Indebtedness

     

    (a)           No
Loan Party shall, nor shall it permit any of its Subsidiaries to, cancel any
claim or Indebtedness owed to any of them except (i) in the ordinary course of
business consistent with past practice or in its reasonable credit judgment,
(ii) in respect of intercompany Indebtedness among the Borrower and the Debtors
and (iii) as required by the Bankruptcy Court.

     

    (b)           No
Loan Party shall, nor shall it permit any of its Subsidiaries to, prepay,
redeem, purchase, defease or otherwise satisfy prior to the scheduled maturity
thereof in any manner, or make any payment in violation of any subordination
terms of, any Subordinated Indebtedness, except as required by the Bankruptcy
Court.

     

    Section
8.7          Restriction on
Fundamental Changes

     

    No Loan
Party shall, nor shall it permit any of its Subsidiaries to (a) merge with any
Person, (b) consolidate with any Person, (c) acquire all or substantially all of
the Stock or Stock Equivalents of any Person, (d) acquire all or substantially
all of the assets of any Person or all or substantially all of the assets
constituting the business of a division, branch or other unit operation of any
Person, (e) enter into any joint venture or partnership with any Person or (f)
acquire or create any Subsidiary unless, after giving effect to such creation or
acquisition, such Subsidiary is a Wholly-Owned Subsidiary of the Borrower, the
Borrower is in compliance with Section 7.12 and Section 7.14 and the Investment
in such Subsidiary is permitted under Section 8.3(e).  In addition,
(x) any Guarantor may merge or consolidate with, or be liquidated into, the
Borrower (so long as the Borrower is the surviving Person) or any Debtor, (y)
the Borrower or any Debtor may acquire all or substantially all of the assets of
any Guarantor or Subsidiary and (z) any Subsidiary of the Borrower may merge or
consolidate with, or be liquidated into, the Borrower (so long as the Borrower
is the surviving Person) or any Debtor (so long as such Debtor is the surviving
Person and continues to be a Wholly-Owned Subsidiary of the
Borrower).  Notwithstanding the foregoing, the Borrower shall not, nor
shall it permit any of its Subsidiaries to, form, acquire, create or enter into
(1) any joint venture or partnership with any other Person (other than any
partnership among the Borrower and any Debtor) or (2) any Subsidiary that is not
a Domestic Subsidiary.

     

    Section
8.8          Change in Nature
of Business

     

    No Loan
Party shall, and shall not permit any of its Subsidiaries to, make any material
change in the nature or conduct of the business as carried on by such Loan Party
and its Subsidiaries at the Petition Date, except as otherwise permitted by
Section 8.4 or Section 8.7.

     

    Section
8.9          Transactions with
Affiliates

     

    No Loan
Party shall, nor shall it permit any of its Subsidiaries to, except as otherwise
expressly permitted herein, do any of the following:  (a) make any
Investment in an Affiliate of the Borrower that is not the Borrower or a
Guarantor (other than permitted under Section 8.3), (b) transfer, sell, lease,
assign or otherwise dispose of any asset to any Affiliate of the Borrower that
is not a Guarantor (other than Asset Sales permitted under Section 8.4 or Restricted Payments
permitted under Section 8.5), (c) merge into or consolidate with or purchase or
acquire assets from any Affiliate of the Borrower that is not the Borrower or a
Guarantor (other than permitted under Section 8.7) or (d) enter into any other
transaction directly or indirectly with or for the benefit of any Affiliate of
the Borrower that is not a Guarantor (including guaranties and assumptions of
obligations of any such Affiliate), except for, (i) transactions in the ordinary
course of business on a basis no less favorable to the Borrower or, as the case
may be, such Subsidiary thereof as would be obtained in a comparable arm’s
length transaction with a Person not an Affiliate thereof, (ii) salaries and
other director or employee compensation to officers or directors of the Borrower
or any of its Subsidiaries commensurate with current compensation levels (or
reimbursement of reasonable expenses and advances made in the ordinary course of
business), (iii) transactions among the Borrower and the Debtors and amongst the
Debtors, (iv) transactions among any Non-Filer and any other Non-Filer, (v)
transactions contemplated pursuant to the agreements listed on Schedule 8.9 and (vi)
transactions among the Borrower or a Subsidiary of the Borrower and an Affiliate
of the Borrower that is not the Borrower or a Guarantor on a basis no less
favorable to the Borrower or, as the case may be, such Subsidiary thereof, as
would be obtained in a comparable arm’s length transaction with a Person not an
Affiliate thereof, if otherwise permitted under this Agreement or the other Loan
Documents.


    
      
         


      

      
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    Section
8.10        Limitations on Restrictions
on Subsidiary Distributions; No New Negative Pledge

     

    No Loan
Party shall, and shall not permit any of its Subsidiaries to, (a) agree to enter
into or suffer to exist or become effective any consensual encumbrance or
restriction of any kind on the ability of such Subsidiary to (i) pay dividends
or make any other distribution, (ii) transfer funds or assets to the Borrower or
any Subsidiary of the Borrower or (iii) make loans or advances to or other
Investments in, or pay any Indebtedness owed to, the Borrower or any other
Subsidiary of the Borrower or (b) enter into or suffer to exist or become
effective any agreement prohibiting or limiting the ability of the Borrower or
any Subsidiary of the Borrower to create, incur, assume or suffer to exist any
Lien upon any of its property, assets or revenues, whether now owned or
hereafter acquired, to secure the Obligations, including any agreement requiring
any other Indebtedness or Contractual Obligation to be equally and ratably
secured with the Obligations except:

     

    (1)           pursuant
to the Loan Documents (including the Orders);

     

    (2)           pursuant
to the Related Documents, to the extent Indebtedness is outstanding under any
such Related Document;

     

    (3)           existing
on the Petition Date and disclosed on Schedule 8.10;

     

    (4)           in
the case of clause (a)
above, (a) customary restrictions in sale agreements limiting the
transfer of such Property pending the closing of such sale, (b) customary
restrictions pertaining to subletting or assignment of leases, licenses or other
contracts, (c) restrictions contained in agreements evidencing Indebtedness
permitted by Section 8.1(b), Section 8.1(g), Section 8.1(j) and Section 8.1(k)
(in which case, any prohibition or limitation shall only be effective against
the assets and proceeds of such borrower and its subsidiaries secured or
financed against or thereby); and

     

    (5)           in
the case of clause (b)
above, restrictions contained in agreements evidencing Indebtedness permitted by
Section 8.1(b), Section 8.1(g), Section 8.1(j) and Section 8.1(k) (in which
case, any prohibition or limitation shall only be effective against the assets
and proceeds of such borrower and its subsidiaries secured or financed against
or thereby).

     

    Section
8.11        Modification of Constituent
Documents

     

    Except in
connection with the Cases or as otherwise permitted by Section 8.7, no Loan
Party shall, nor shall it permit any of its Subsidiaries to, change its capital
structure (including in the terms of its outstanding Stock) or otherwise amend
its Constituent Documents, except for changes and amendments that do not
materially and adversely affect the rights and privileges of the Borrower or any
Subsidiary of the Borrower and do not materially and adversely affect the
interests of the Administrative Agent, the Lenders and the Issuers under the
Loan Documents or in the Collateral.


    
      
         


      

      
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    Section
8.12        Modification of Debt
Agreements

     

    No Loan
Party shall, nor shall it permit any of its Subsidiaries to, change or amend the
terms of any Subordinated Debt (or any indenture or agreement or other material
document entered into in connection therewith) if the effect of such amendment
is to (a) increase the interest rate on such Subordinated Debt, (b) change the
dates upon which payments of principal or interest are due on such Subordinated
Debt other than to extend such dates, (c) change any default or event of default
other than to delete or make less restrictive any default provision therein, or
add any covenant with respect to such Subordinated Debt, (d) change the
subordination provisions of such Subordinated Debt in a manner materially
adverse to the Lenders in their sole discretion, (e) change the redemption or
prepayment provisions of such Subordinated Debt other than to extend the dates
therefor or to reduce the premiums payable in connection therewith or (f) change
or amend any other term if such change or amendment would materially increase
the obligations of the obligor or confer additional material rights to the
holder of such Subordinated Debt in a manner adverse to the Borrower, any
Subsidiary of the Borrower, the Administrative Agent or any Lender.

     

    Section
8.13        Accounting Changes; Fiscal
Year

     

    No Loan
Party shall, nor shall it permit any of its Subsidiaries to, change its (a)
accounting treatment and reporting practices or tax reporting treatment, except
as required by GAAP or any Requirement of Law and disclosed to the Lenders and
the Administrative Agent or (b) Fiscal Year.

     

    Section
8.14        Margin
Regulations

     

    No Loan
Party shall, nor shall it permit any of its Subsidiaries to, use all or any
portion of the proceeds of any credit extended hereunder to purchase or carry
margin stock (within the meaning of Regulation U of the Federal Reserve Board)
in contravention of Regulation U of the Federal Reserve Board.

     

    Section
8.15        Operating Leases;
Sale/Leasebacks

     

    (a)           No
Loan Party shall, nor shall it permit any of its Subsidiaries to, become liable
after the Closing Date as lessee or guarantor or other surety with respect to
any operating lease entered into outside the ordinary course of business of such
Person, unless the aggregate amount of all rents paid or accrued under all such
operating leases shall not exceed $100,000 in the aggregate.

     

    (b)           The
Borrower shall not, nor shall it permit any of its Subsidiaries to, enter into
any Sale and Leaseback Transaction.

     

    Section
8.16        No Speculative
Transactions

     

    No Loan
Party shall, nor shall it permit any of its Subsidiaries to, engage in any
speculative transaction or in any transaction involving Hedging Contracts except
for the sole purpose of hedging in the normal course of business and consistent
with industry practices.

     

    Section
8.17        Compliance with
ERISA

     

    No Loan
Party shall, nor shall it permit any of its Subsidiaries or any ERISA Affiliate
to, cause or permit to occur (a) an event that could result in the imposition of
a Lien under Section 412 of the Code or Section 302 or 4068 of ERISA,
(b) an Unfunded Pension Liability or (c) one or more ERISA Events that, in each
case in clauses (a)
through (c) above, such
event or condition, together with all such other events or conditions that could
reasonably be expected to result in have a Material Adverse
Effect.


    
      
         


      

      
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    Section
8.18        Chapter 11
Claims.

     

    No Loan
Party shall, nor shall it permit any of its Subsidiaries to incur, create,
assume, suffer to exist or permit any other Superpriority Claim or Lien on any
Collateral which is pari passu with or senior to the claims of the
Administrative Agent and the Lenders granted pursuant to this Agreement, the
Security Documents and/or the Interim Order (or the Final Order, as applicable),
except for the Carve Out and Liens permitted pursuant to Section 8.3 which, with
respect to the Debtors, are in accordance with the Interim Order (or Final
Order, as applicable), are senior to such Liens.

     

    Section
8.19        Available
Credit

     

    No Loan
Party shall permit the Available Credit to be less than $3,000,000 at any
time.

     

    ARTICLE
IX

    Events
of Default


     

    Section
9.1          Events of
Default

     

    Each of
the following events shall be an Event of Default:

     

    (a)           (i)
the Borrower shall fail to pay any principal of any Loan or any Reimbursement
Obligation when the same becomes due and payable or (ii) the Borrower shall fail
to pay any interest on any Loan, any fee under any of the Loan Documents or any
other Obligation (other than (x) one referred to in clause (a)(i) and (y)
Obligations arising under Cash Management Documents and Hedging Contracts) and
such non-payment continues for a period of 3 Business Days after the due date
therefor; or

     

    (b)           any
representation or warranty made or deemed made by any Loan Party in any Loan
Document or by any Loan Party (or any of its officers) in connection with any
Loan Document shall prove to have been incorrect in any material respect when
made or deemed made; or

     

    (c)           any
Loan Party shall fail to perform or observe (i) any term, covenant or agreement
contained in Article V, Section 6.1, Section 6.2, Section 7.1, Section 7.6,
Section 7.9, Section 7.12, Section 7.15 or Article VIII, (ii) any term, covenant
or agreement contained in Section 6.11(a) through Section 6.11(e) within 2 days after the
earlier of (A) the date on which a Responsible Officer of the Borrower becomes
aware of such failure and (B) the date on which written notice thereof shall
have been given to the Borrower by the Administrative Agent or any Lender, (iii)
any term, covenant or agreement contained in Section 6.11(f) through Section
6.11(h) within 5 Business Days after the earlier of (A) the date on which a
Responsible Officer of the Borrower becomes aware of such failure and (B) the
date on which written notice thereof shall have been given to the Borrower by
the Administrative Agent or any Lender or (iv) any other term, covenant or
agreement contained in this Agreement or in any other Loan Document if such
failure under this clause (iv)
shall remain unremedied for 25 days after the earlier of (A) the date on
which a Responsible Officer of the Borrower becomes aware of such failure and
(B) the date on which written notice thereof shall have been given to the
Borrower by the Administrative Agent or any Lender; or

    

      
        
           


        

        
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      (d)           (i)
the Borrower or any of its Subsidiaries shall fail to make any payment on any
Indebtedness of the Borrower or any such Subsidiary (other than the Obligations)
or any Guaranty Obligation in respect of Indebtedness of any other Person, and,
in each case, such Indebtedness is incurred after the Petition Date and such
failure relates to Indebtedness having a principal amount of $1,000,000 or more,
when the same becomes due and payable (whether by scheduled maturity, required
prepayment, acceleration, demand or otherwise), (ii) any other event shall occur
or condition shall exist under any agreement or instrument relating to any such
Indebtedness, if the effect of such event or condition is to accelerate, or to
permit the acceleration of, the maturity of such Indebtedness (after giving
effect to any applicable grace period or amendment) or (iii) any such
Indebtedness shall become or be declared to be due and payable, or be required
to be prepaid or repurchased (other than by a regularly scheduled required
prepayment), prior to the stated maturity thereof; or

       

      (e)           any
creditor of a Non-Filer shall exercise any remedy against any Non-Filer,
including, without limitation, the acceleration of debt (other than any
automatic acceleration of the Non-Filers’ debt as a result of the Cases), the
exercise of any guaranty or the foreclosure on collateral unless each such
Non-Filer seeks protection under any Requirement of Law relating to bankruptcy,
insolvency or reorganization or relief of debtors, within 14 days thereof on
terms reasonably satisfactory to the Administrative Agent; or

       

      (f)           except
as specifically contemplated by clause (e) above, (i) any Non-Filer shall
generally not pay its debts as such debts become due, shall admit in writing its
inability to pay its debts generally or shall make a general assignment for the
benefit of creditors, (ii) any proceeding shall be instituted by or against any
Non-Filer seeking to adjudicate it a bankrupt or insolvent, or seeking
liquidation, winding up, reorganization, arrangement, adjustment, protection,
relief or composition of it or its debts, under any Requirement of Law relating
to bankruptcy, insolvency or reorganization or relief of debtors, or seeking the
entry of an order for relief or the appointment of a custodian, receiver,
trustee or other similar official for it or for any substantial part of its
property; provided,
however, that, in the
case of any such proceedings instituted against any Non-Filer (but not
instituted by such Non-Filer), either such proceedings shall remain undismissed
or unstayed for a period of 30 days or more or any action sought in such
proceedings shall occur or (iii) any Non-Filer shall take any corporate action
to authorize any action set forth in clauses (i) and (ii) above; or

       

      (g)           any
of the Cases shall be dismissed or converted to a case under Chapter 7 of the
Bankruptcy Code or a trustee under Chapter 11 of the Bankruptcy Code shall be
appointed in any of the Cases with expanded powers to operate or manage the
financial affairs, business or reorganization of the Debtors; or

       

      (h)           (i)
an order of the Bankruptcy Court shall be entered granting another Superpriority
Claim or Lien (other than the Carve Out) pari passu with or senior to that
granted to the Lenders and the Administrative Agent pursuant to this Agreement
and the Interim Order (or the Final Order, as applicable) without the consent of
the Administrative Agent and the Requisite Lenders, (ii) an order of the
Bankruptcy Court shall be entered reversing, staying for a period in excess of
five days, vacating or otherwise amending, supplementing or modifying the
Interim Order (or the Final Order, as applicable) in a manner adverse to the
Lenders without the written consent of the Administrative Agent and the
Requisite Lenders; (iii) an order of the Bankruptcy Court shall be entered under
Section 1106(b) of the Bankruptcy Code in any of the Cases appointing an
examiner having enlarged powers relating to the operation of the business of the
Loan Parties (i.e., powers beyond those set forth under Sections 1106(a)(3) and
(4) of the Bankruptcy Code) and such order shall not be reversed or vacated
within 30 days after the entry thereof; (iv) the Final Order Entry Date shall
not have occurred by the date that is 45 days following the date of entry of the
Interim Order (or such later date as the Administrative Agent may agree in its
sole discretion); or (v) a plan shall be confirmed in any of the Cases of the
Debtors that does not provide for termination of the Commitments and payment in
full in cash of the Obligations on the Effective Date or any order shall be
entered which dismisses any of the Cases of the Debtors and which order does not
provide for termination of the Commitments and payment in full in cash of the
Obligations or any of the Debtors shall seek support, or fail to contest in good
faith the filing or confirmation of such a plan or the entry of such an order;
or


      
        
           


        

        
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      (i)           
any Loan Party shall make any payments relating to Indebtedness incurred and
outstanding prior to the Petition Date other than (i) in the case of a Debtor,
as permitted under the Interim Order (or the Final Order, as applicable),
(ii) in the case of a Debtor, in respect of and in accordance with, and to
the extent authorized by, a “first day” or other order reasonably satisfactory
to the Administrative Agent, (iii) in the case of a Non-Filer, any Indebtedness
(other than Indebtedness under the Related Documents) and (iv) as otherwise
permitted under this Agreement, including pursuant to the Orders or any other
order of the Bankruptcy Court that is reasonably acceptable to the
Administrative Agent and the Requisite Lenders; or

       

      (j)           
the entry of an order granting relief from the automatic stay so as to allow a
third party to proceed against any property of any Loan Party which either (i)
has a value in excess of $1,000,000 in the aggregate or (ii) could reasonably
expected to result in a Material Adverse Effect; or

       

      (k)           the
filing of any pleading by any Loan Party seeking, or otherwise consenting to,
any of the matters set forth in paragraphs (g), (h), (i) or (j) above in this
Section; or

       

      (l)           
the Borrower or any Subsidiary thereof shall fail to comply with the Interim
Order or the Final Order; or

       

      (m)          subject
to any extensions agreed to by the Administrative Agent and the Requisite
Lenders in their reasonable discretion, the Debtors shall have failed to comply
with any of the following: (i) file with the Bankruptcy Court a plan of
reorganization and related disclosure statement for each of the Cases in form
and substance reasonably satisfactory to the Administrative Agent, within 90
days after the Petition Date; (ii) obtain an order of the Bankruptcy Court, in
form and substance reasonably satisfactory to the Administrative Agent,
approving such disclosure statement within 120 days after the Petition Date;
(iii) obtain an order of the Bankruptcy Court, in form and substance reasonably
satisfactory to the Administrative Agent, confirming such plan of reorganization
within 165 days after the Petition Date; and (iv) consummate such plan of
reorganization on or before the date that is 180 days after the Petition Date;
or

       

      (n)           one
or more final judgments or decrees required to be satisfied as an administrative
expense claim shall be entered after the Petition Date against any Loan Party
involving in the aggregate a liability (not paid or fully covered by insurance
as to which the relevant insurance company has not denied coverage) of
$1,000,000 or more, and all such judgments or decrees shall not have been
vacated, discharged, stayed or bonded pending appeal within 30 days from the
entry thereof; or

       

      (o)           (i)
an ERISA Event shall occur, (ii) an Unfunded Pension Liability shall exist or
(iii) the Borrower, any Subsidiary or any ERISA Affiliate shall be assessed
Withdrawal Liabilities; and in each case in clauses (i) through (iii) above, the amount of
all liabilities and deficiencies resulting therefrom, together with all such
other liabilities and/or deficiencies, whether or not assessed, exceeds
$5,000,000 individually or in the aggregate; or


      
        
           


        

        
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      (p)           there
shall be rendered against the Loan Parties or any other Subsidiaries a
nonmonetary judgment with respect to a post-Petition Date event which causes or
could reasonably be expected to have a Material Adverse Effect; or

       

      (q)           any
proceeding shall be commenced by any Loan Party seeking, or otherwise consenting
to, (i) the invalidation, subordination or other challenging of the
Superpriority Claims and Liens granted to secure the Obligations or (ii) any
relief under Section 506(c) of the Bankruptcy Code with respect to any
Collateral; or

       

      (r)           any
provision of any Loan Document (including the Orders) after delivery thereof
shall for any reason fail or cease to be valid and binding on, or enforceable
against (other than in accordance with its terms), any Loan Party party thereto,
or any Loan Party shall so state in writing; or

       

      (s)           any
Collateral Document (including the Orders) shall for any reason fail or cease to
create a valid and enforceable Lien on any Collateral purported to be covered
thereby or, except as permitted by the Loan Documents, such Lien shall fail or
cease to be a perfected and first priority Lien, subject to Liens permitted by
Section 8.2, or any Loan Party shall so state in writing; or

       

      (t)           the
guarantees contained in the Orders or in this Agreement shall cease, for any
reason, to be in full force and effect or any Loan Party shall so assert in
writing; or

       

      (u)           there
shall occur any Change of Control; or

       

      (v)           one
or more of the Borrower and the Subsidiaries of the Borrower shall have entered
into one or more consent or settlement decrees or agreements or similar
arrangements with a Governmental Authority or one or more judgments, orders,
decrees or similar actions shall have been entered against one or more of the
Borrower and the Subsidiaries of the Borrower based on or arising from the
violation of or pursuant to any Environmental Law, or the generation, storage,
transportation, treatment, disposal or Release of any Contaminant and, in
connection with all the foregoing, the Borrower or any Subsidiary of the
Borrower is likely to incur Environmental Liabilities and Costs exceeding
$1,000,000 individually or in the aggregate to the extent not fully covered by
insurance (so long as the applicable insurer has not denied or disputed coverage
thereof) that were not reflected in the Budgets or the Financial Statements
delivered pursuant to Section 4.4 prior to the Closing
Date; or

       

      (w)           Section
3 of either of the Notes Forbearance Agreements shall for any reason fail or
cease to be valid and binding on, or enforceable against, any party thereto, or
any party thereto shall so state in writing.


      
        
           


        

        
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      Section
9.2          Remedies

       

      During
the continuance of any Event of Default, the Administrative Agent (a) may and,
at the request of the Majority Facility Lenders for the Revolving Facility,
shall, by notice to the Borrower declare that all or any portion of the
Revolving Commitments be terminated, whereupon the obligation of each Revolving
Lender to make any Revolving Loan and each Issuer to Issue any Letter of Credit
shall immediately terminate, (b) may and, at the request of the Majority
Facility Lenders for the Term Facility, shall, by notice to the Borrower declare
that all or any portion of the Term Commitments be terminated, whereupon the
obligation of each Term Lender to make any Term Loan shall immediately
terminate, (c) may, and, at the request of the Majority Facility Lenders for the
Revolving Facility, shall, by notice to the Borrower, declare the Revolving
Loans, all accrued but unpaid interest thereon to be forthwith due and payable,
whereupon the Revolving Loans, all such interest and all such amounts shall
become and be forthwith due and payable, without presentment, demand, protest or
further notice of any kind, all of which are hereby expressly waived by the
Borrower to the extent permitted by applicable law, (d) may, and, at the request
of the Majority Facility Lenders for the Term Facility, shall, by notice to the
Borrower, declare the Term Loans, all accrued but unpaid interest thereon to be
forthwith due and payable, without presentment, demand, protest or further
notice of any kind, all of which are hereby expressly waived by the Borrower to
the extent permitted by applicable law and (e) may, and, at the request of the
Requisite Lenders, shall, by notice to the Borrower, declare all other
Obligations payable under this Agreement to be forthwith due and payable,
whereupon such Obligations shall become and be forthwith due and payable,
without presentment, demand, protest or further notice of any kind, all of which
are hereby expressly waived by the Borrower to the extent permitted by
applicable law, provided,
however, that upon the occurrence of the Events of Default specified in
Section 9.1(f), (x) the Commitments of each Lender to make Loans and the
commitments of each Revolving Lender and Issuer to Issue or participate in
Letters of Credit shall each automatically be terminated and (y) the Loans, all
such interest and all such amounts and Obligations shall automatically become
and be due and payable, without presentment, demand, protest or any notice of
any kind, all of which are hereby expressly waived by the
Borrower.  In addition to the remedies set forth above, subject to the
terms of the Orders, the Administrative Agent may and, at the request of the
Majority Facility Lenders for either the Revolving Facility or the Term
Facility, shall exercise any remedies provided for by the Collateral Documents
in accordance with the terms thereof or any other remedies provided by
applicable law, provided that with respect to
the enforcement of Liens or other remedies with respect to the Collateral, the
Administrative Agent shall provide the Borrower (with a copy to counsel for the
Official Creditors’ Committee in the Cases, and to the United States Trustee)
with five (5) Business Days’ written notice prior to taking the action
contemplated thereby and provided further, that upon receipt of
notice referred to in the immediately preceding clause with respect to any
Deposit Accounts constituting Collateral, the Borrower may continue to make
ordinary course disbursements from such Deposit Accounts but may not withdraw or
disburse any other amounts from such Deposit Accounts.

       

      Section
9.3          Actions in
Respect of Letters of Credit

       

      At any
time (i) upon the Revolving Termination Date or (ii) after the Revolving
Termination Date when the aggregate funds on deposit in Cash Collateral Accounts
shall be less than 105% of the Letter of Credit Obligations, the Borrower shall
pay to the Administrative Agent in immediately available funds at the
Administrative Agent’s office referred to in Section 13.7, for deposit in a Cash
Collateral Account, the amount required to that, after such payment, the
aggregate funds on deposit in the Cash Collateral Accounts equals or exceeds
105% of the sum of all outstanding Letter of Credit Obligations.  The
Administrative Agent may, from time to time after funds are deposited in any
Cash Collateral Account, apply funds then held in such Cash Collateral Account
to the payment of any amounts, in accordance with Section 2.8(d) and Section 2.12(g), as
shall have become or shall become due and payable by the
Borrower.  The Administrative Agent shall promptly give written notice
of any such application; provided, however, that the
failure to give such written notice shall not invalidate any such
application.

       

      ARTICLE
X

      The
Administrative Agent


       

      (a)           Each
of the Lenders and the Issuer 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.


      
        
           


        

        
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      (b)           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
Related Parties 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.

       

      (c)           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 Requisite Lenders (or such other number or percentage of the
Lenders as shall be necessary under the terms of this Agreement), 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 Related Parties 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 Requisite Lenders (or such other number or percentage of
the Lenders as shall be necessary under the terms of this Agreement) or in the
absence of its own (or its Affiliates’, agents’, officers’, directors’ or
advisors’) gross negligence or wilful 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 (i) any statement, warranty or
representation made in or in connection with any Loan Document, (ii) the
contents of any certificate, report or other document delivered hereunder or in
connection with any Loan Document, (iii) the performance or observance of
any of the covenants, agreements or other terms or conditions set forth in any
Loan Document, (iv) the validity, enforceability, effectiveness or
genuineness of any Loan Document or any other agreement, instrument or document,
(v) the creation, perfection or priority of Liens on the Collateral or the
existence of the Collateral or (vi) the satisfaction of any condition set
forth in Article III or elsewhere in any Loan Document, other than to confirm
receipt of items expressly required to be delivered to the Administrative
Agent.

       

      (d)           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 reasonably 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 reasonably believed by it in good faith 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.

       

      (e)           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.


      
        
           


        

        
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      (f)           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
notifying the Lenders, the Issuer and the Borrower.  Upon any such
resignation, the Requisite Lenders shall have the right, with the consent (not
to be unreasonably withheld or delayed) of the Borrower (provided that such consent
shall not be required if a Default or Event of Default has occurred and is
continuing) to appoint a successor.  If no successor shall have been
so appointed by the Requisite 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 the
Lenders and the Issuer, appoint a successor Administrative Agent which shall be
a commercial bank or an Affiliate of any such commercial bank.  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 X, Section 2.16(c) and Section 13.2 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.

       

      (g)           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.

       

      (h)           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 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.


      
        
           


        

        
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      ARTICLE
XI

      Guarantee

       

      Section
11.1        Guarantee

       

      (a)           Each
of the Guarantors hereby, jointly and severally, unconditionally and
irrevocably, guarantees to the Administrative Agent, for the ratable benefit of
the Lenders and their respective successors, indorsees, transferees and assigns
permitted hereunder, the prompt and complete payment and performance by the
Borrower when due (whether at the stated maturity, by acceleration or otherwise)
of the Obligations.

       

      (b)           Anything
herein or in any other Loan Document to the contrary notwithstanding, the
maximum liability of each Guarantor under this Section 11.1 and under the other
Loan Documents shall in no event exceed the amount which is permitted under
applicable federal and state laws relating to the insolvency of
debtors.

       

      (c)           Each
Guarantor agrees to the extent permitted by applicable law that the Obligations
may at any time and from time to time exceed the amount of the liability of such
Guarantor hereunder without impairing the guarantee contained in this Article XI
or affecting the rights and remedies of the Administrative Agent or any Lender
hereunder.

       

      (d)           The
guarantee contained in this Article XI shall remain in full force and effect
until all the Obligations and the obligations of each Guarantor under the
guarantee contained in this Article XI shall have been satisfied by payment in
full (other than contingent obligations not then due and owing) and the
Commitments shall be terminated.

       

      (e)           No
payment made by the Borrower, any of the Guarantors, any other guarantor or any
other Person or received or collected by the Administrative Agent or any Lender
from the Borrower, any of the Guarantors, any other guarantor or any other
Person by virtue of any action or proceeding or any set-off or appropriation or
application at any time or from time to time in reduction of or in payment of
the Obligations shall be deemed to modify, reduce, release or otherwise affect
the liability of any Guarantor hereunder which shall, notwithstanding any such
payment (other than any payment made by such Guarantor in respect of the
Obligations or any payment received or collected from such Guarantor in respect
of the Obligations), remain liable for the Obligations up to the maximum
liability of such Guarantor hereunder until the Obligations (other than
contingent obligations not then due and owing) are paid in full and the
Commitments are terminated.

       

      Section
11.2        Right of Contribution 
Each
Guarantor hereby agrees that to the extent that a Guarantor shall have paid more
than its proportionate share of any payment made hereunder, such Guarantor shall
be entitled to seek and receive contribution from and against any other
Guarantor hereunder which has not paid its proportionate share of such
payment.  Each Guarantor’s right of contribution shall be subject to
the terms and conditions of Section 11.3.  The provisions of this
Section 11.2 shall in no respect limit the obligations and liabilities of any
Guarantor to the Administrative Agent and the Lenders, and each Guarantor shall
remain liable to the Administrative Agent and the Lenders for the full amount
guaranteed by such Guarantor hereunder.


      
        
           


        

        
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      Section
11.3        No Subrogation.

       

      Notwithstanding
any payment made by any Guarantor hereunder or any set-off or application of
funds of any Guarantor by the Administrative Agent or any Lender, no Guarantor
shall be entitled to be subrogated to any of the rights of the Administrative
Agent or any Lender against the Borrower or any other Guarantor or any
collateral security or guarantee or right of offset held by the Administrative
Agent or any Lender for the payment of the Obligations, nor shall any Guarantor
seek or be entitled to seek any contribution or reimbursement from the Borrower
or any other Guarantor in respect of payments made by such Guarantor hereunder,
until all amounts owing to the Administrative Agent and the Lenders by the
Borrower on account of the Obligations (other than contingent obligations not
then due and owing) are paid in full and the Commitments are
terminated.  If any amount shall be paid to any Guarantor on account
of such subrogation rights at any time when all of the Obligations (other than
contingent obligations not then due and owing) shall not have been paid in full,
such amount shall be held by such Guarantor for the benefit of the
Administrative Agent and the Lenders, segregated from other funds of such
Guarantor, and shall, promptly upon receipt by such Guarantor, be turned over to
the Administrative Agent in the exact form received by such Guarantor (duly
indorsed by such Guarantor to the Administrative Agent, if required), to be
applied against the Obligations, whether matured or unmatured, in accordance
with the terms of this Agreement.

       

      Section
11.4        Amendments, etc. with
Respect to the Obligations.

       

      To the
extent permitted by applicable law, each Guarantor shall remain obligated
hereunder notwithstanding that, without any reservation of rights against any
Guarantor and without notice to or further assent by any Guarantor, any demand
for payment of any of the Obligations made by the Administrative Agent or any
Lender may be rescinded by the Administrative Agent or such Lender and any of
the Obligations continued, and the Obligations, or the liability of any other
Person upon or for any part thereof, or any collateral security or guarantee
therefor or right of offset with respect thereto, may, from time to time, in
whole or in part, be renewed, extended, amended, modified, accelerated,
compromised, waived, surrendered or released by the Administrative Agent or any
Lender, and this Agreement and the other Loan Documents and any other documents
executed and delivered in connection herewith or therewith may be amended,
modified, supplemented or terminated, in whole or in part, as the Administrative
Agent (or the Requisite Lenders or all Lenders, as the case may be) may deem
advisable from time to time, and any collateral security, guarantee or right of
offset at any time held by the Administrative Agent or any Lender for the
payment of the Obligations may be sold, exchanged, waived, surrendered or
released.  To the extent permitted by applicable law, neither the
Administrative Agent nor any Lender shall have any obligation to protect,
secure, perfect or insure any Lien at any time held by it as security for the
Obligations or for the guarantee contained in this Article XI or any property
subject thereto.


      
        
           


        

        
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      Section
11.5        Guarantee Absolute and
Unconditional.

       

      To the
extent permitted by applicable law, each Guarantor waives any and all notice of
the creation, renewal, extension or accrual of any of the Obligations and notice
of or proof of reliance by the Administrative Agent or any Lender upon the
guarantee contained in this Article XI or acceptance of the guarantee contained
in this Article XI; the Obligations, and any of them, shall conclusively be
deemed to have been created, contracted or incurred, or renewed, extended,
amended or waived, in reliance upon the guarantee contained in this Article XI;
and all dealings between the Borrower and any of the Guarantors, on the one
hand, and the Administrative Agent and the Lenders, on the other hand, likewise
shall be conclusively presumed to have been had or consummated in reliance upon
the guarantee contained in this Article XI.  To the extent permitted
by applicable law, each Guarantor waives diligence, presentment, protest, demand
for payment and notice of default or nonpayment to or upon the Borrower or any
of the Guarantors with respect to the Obligations.  Each Guarantor
understands and agrees that the guarantee contained in this Article XI shall be
construed as a continuing, absolute and unconditional guarantee of payment
without regard to (a) the validity or enforceability of this Agreement or any
other Loan Document, any of the Obligations or any other collateral security
therefor or guarantee or right of offset with respect thereto at any time or
from time to time held by the Administrative Agent or any Lender, (b) any
defense, set-off or counterclaim (other than a defense of payment or
performance) which may at any time be available to or be asserted by the
Borrower or any other Person against the Administrative Agent or any Lender, or
(c) any other circumstance (other than payment or performance) whatsoever (with
or without notice to or knowledge of such Borrower or such Guarantor) which
constitutes, or might be construed to constitute, an equitable or legal
discharge of such Borrower for the Obligations, or of such Guarantor under the
guarantee contained in this Article XI, in bankruptcy or in any other
instance.  When making any demand hereunder or otherwise pursuing its
rights and remedies hereunder against any Guarantor, the Administrative Agent or
any Lender may, but shall be under no obligation to, make a similar demand on or
otherwise pursue such rights and remedies as it may have against the Borrower,
any other Guarantor, or any other Person or against any collateral security or
guarantee for the Obligations or any right of offset with respect thereto, and
any failure by the Administrative Agent or any Lender to make any such demand,
to pursue such other rights or remedies or to collect any payments from the
Borrower, any other Guarantor, or any other Person or to realize upon any such
collateral security or guarantee or to exercise any such right of offset, or any
release of the  Borrower, any other Guarantor, or any other Person or
any such collateral security, guarantee or right of offset, shall not relieve
any Guarantor of any obligation or liability hereunder, and shall not impair or
affect the rights and remedies, whether express, implied or available as a
matter of law, of the Administrative Agent or any Lender against any
Guarantor.  For the purposes hereof “demand” shall include the
commencement and continuance of legal proceedings relating to this guarantee or
the Obligations.

       

      Section
11.6        Reinstatement

       

      The
guarantee contained in this Article XI shall continue to be effective, or be
reinstated, as the case may be, if at any time payment, or any part thereof, of
any of the Obligations is rescinded or must otherwise be restored or returned by
the Administrative Agent or any Lender upon the insolvency, bankruptcy,
dissolution, liquidation or reorganization of any Loan Party, or upon or as a
result of the appointment of a receiver, intervenor or conservator of, or
trustee or similar officer for, any Loan Party or any substantial part of its
property, or otherwise, all as though such payments had not been
made.

       

      Section
11.7        Payments.

       

      Each
Guarantor hereby guarantees that payments hereunder will be paid to the
Administrative Agent without set-off or counterclaim.

       

      ARTICLE
XII

      Remedies;
Application of Proceeds


       

      Section
12.1        Remedies; Obtaining the
Collateral Upon Default.

       

      Upon the
occurrence and during the continuance of an Event of Default (and after notice
of such Event of Default, if required under the Orders), to the extent any such
action is permitted by the Interim Order (or the Final Order, as applicable) or
Article XI, the Administrative Agent, in addition to any rights now or hereafter
existing under applicable law, and without application to or order of the
Bankruptcy Court, shall have all rights as a secured creditor under the Uniform
Commercial Code in all relevant jurisdictions and may, and, at the request of
the Majority Facility Lenders for either the Revolving Facility or the Term
Facility, shall:


      
        
           


        

        
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      (a)           personally,
or by agents or attorneys, immediately retake possession of the Collateral or
any part thereof, from the Borrower, any Guarantor, or any other Person who then
has possession of any part thereof with or without notice or process of law (but
subject to any Requirements of Law), and for that purpose may enter upon the
Borrower’s, or any Guarantor’s premises where any of the Collateral is located
and remove the same and use in connection with such removal any and all
services, supplies, aids and other facilities of the Borrower, or such
Guarantor; 

       

      (b)           instruct
the obligor or obligors on any agreements, instrument or other obligation
constituting the Collateral to make any payment required by the terms of such
instrument or agreement directly to any Cash Collateral Account;

       

      (c)           sell,
assign or otherwise liquidate, or direct any Loan Party to sell, assign or
otherwise liquidate, any or all of the Collateral or any part thereof in
accordance with Section 12.2, and take possession of the proceeds of any such
sale, assignment or liquidation; and

       

      (d)           take
possession of the Collateral or any part thereof, by directing the Borrower and
any Guarantor in writing to deliver the same to the Administrative Agent at any
place or places designated by the Administrative Agent, in which event the
Borrower and such Guarantor shall at its own expense:

       

      (i)           forthwith
cause the same to be moved to the place or places so designated by the
Administrative Agent and there delivered to the Administrative
Agent,

       

      (ii)          store
and keep any Collateral so delivered to the Administrative Agent at such place
or places pending further action by the Administrative Agent as provided in
Section 12.2, and

       

      (iii)         while
the Collateral shall be so stored and kept, provide such guards and maintenance
services as shall be necessary to protect the same and to preserve and maintain
them in satisfactory condition;

       

      it being
understood that the Borrower’s and each Guarantor’s obligation so to deliver the
Collateral is of the essence of this Agreement and that, accordingly, upon
application to the Bankruptcy Court, the Administrative Agent shall be entitled
to a decree requiring specific performance by the Borrower or such Guarantor of
such obligation.

       

      Section
12.2        Remedies; Disposition of the
Collateral.

       

      Upon the
occurrence and during the continuance of an Event of Default (and after notice
of such Event of Default, if required under the Orders), and to the extent
permitted by the Interim Order (or the Final Order, as applicable) or Article
XI, without application to or order of the Bankruptcy Court, any Collateral
repossessed by the Administrative Agent under or pursuant to Section 12.1 or the
Interim Order (or the Final Order, as applicable) or any other Loan Document,
and any other Collateral whether or not so repossessed by the Administrative
Agent, may be sold, assigned, leased or otherwise disposed of under one or more
contracts or as an entirety, and without the necessity of gathering at the place
of sale the property to be sold, and in general in such manner, at such time or
times, at such place or places and on commercially reasonable terms, in
compliance with any Requirements of Law.  Any of the Collateral may be
sold, leased or otherwise disposed of, in the condition in which the same
existed when taken by the Administrative Agent or after any overhaul or repair
which the Administrative Agent shall determine to be commercially
reasonable.  Any such disposition which shall be a private sale or
other private proceeding permitted by applicable Requirements of Law shall be
made upon not less than 10 days’ written notice to the Borrower specifying the
time at which such disposition is to be made and the intended sale price or
other consideration therefor, and shall be subject, for the 10 days after the
giving of such notice, to the right of the Borrower or any nominee of the
Borrower to acquire the Collateral involved at a price or for such other
consideration at least equal to the intended sale price or other consideration
so specified.  Any such disposition which shall be a public sale
permitted by applicable Requirements of Law shall be made upon not less than 10
days’ written notice to the Borrower specifying the time and place of such sale
and, in the absence of applicable Requirement of Law, shall be by public auction
(which may, at the Administrative Agent’s option, be subject to reserve), after
publication of notice of such auction not less than 10 days prior thereto in USA
Today and The Wall Street Journal, National Edition.  Subject to
Section 12.4, to the extent permitted by any such Requirement of Law, the
Administrative Agent on behalf of the Lenders or any Lender may bid for and
become the purchaser of the Collateral or any item thereof, offered for sale in
accordance with this Section 12.2 without accountability to the Borrower or any
Guarantor.  If, under mandatory Requirements of Law, the
Administrative Agent shall be required to make disposition of the Collateral
within a period of time which does not permit the giving of notice to the
Borrower as hereinabove specified, the Administrative Agent need give the
Borrower only such notice of disposition as shall be reasonably
practicable.


      
        
           


        

        
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      Section
12.3        Application of DIP
Proceeds.

       

      (a)           Notwithstanding
anything to the contrary contained in this Agreement or any other Loan Document,
(i) if the Administrative Agent takes action under Article XI upon the
occurrence and during the continuance of an Event of Default, or at any time on
or after the Termination Date, any payment by any Loan Party on account of
principal of, interest on and fees with respect to the Loans, or any Guaranty
Obligation with respect thereto, and any proceeds arising out of any realization
(including after foreclosure) upon the Collateral shall be applied in the order
set forth in Section 2.12(g) and (ii) any payments or distributions of any kind
or character, whether in cash, property or securities, made by any Loan Party or
otherwise in a manner inconsistent with clause (i) of this Section
12.3(a) shall be held in trust and paid over or delivered to the Administrative
Agent so that the priorities and requirements set forth in such clause (i) are
satisfied.

       

      (b)           It
is understood that the Loan Parties shall remain liable to the extent of any
deficiency between the amount of the proceeds of the Collateral and the amount
of the Obligations.

       

      Section
12.4        WAIVER OF
CLAIMS.

       

       EXCEPT
AS OTHERWISE PROVIDED IN THIS AGREEMENT OR THE ORDERS, THE LOAN PARTIES HEREBY
WAIVE, TO THE EXTENT PERMITTED BY APPLICABLE LAW:

       

      (a)           NOTICE
AND JUDICIAL HEARING IN CONNECTION WITH THE ADMINISTRATIVE AGENT’S TAKING
POSSESSION OR THE ADMINISTRATIVE AGENT’S DISPOSITION OF ANY OF THE COLLATERAL,
INCLUDING WITHOUT LIMITATION, ANY AND ALL PRIOR NOTICE AND HEARING FOR ANY
PREJUDGMENT REMEDY OR REMEDIES AND ANY SUCH RIGHT WHICH THE BORROWER, OR ANY
GUARANTOR WOULD OTHERWISE HAVE UNDER ANY REQUIREMENT OF LAW;

       

      (b)           ALL
DAMAGES OCCASIONED BY SUCH TAKING OF POSSESSION EXCEPT ANY DAMAGES WHICH ARE THE
DIRECT RESULT OF THE ADMINISTRATIVE AGENT’S OR ANY LENDER’S BAD FAITH, GROSS
NEGLIGENCE OR WILLFUL MISCONDUCT;


      
        
           


        

        
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      (c)           ALL
OTHER REQUIREMENTS TO THE TIME, PLACE AND TERMS OF SALE OR OTHER REQUIREMENTS
WITH RESPECT TO THE ENFORCEMENT OF THE ADMINISTRATIVE AGENT’S RIGHTS HEREUNDER;
AND

       

      (d)           ALL
RIGHTS OF REDEMPTION, APPRAISEMENT, STAY, EXTENSION OR MORATORIUM NOW OR
HEREAFTER IN FORCE UNDER ANY APPLICABLE LAW IN ORDER TO PREVENT OR DELAY THE
ENFORCEMENT OF THIS AGREEMENT OR THE ABSOLUTE SALE OF THE COLLATERAL OR ANY
PORTION THEREOF, AND EACH LOAN PARTY, FOR ITSELF AND ALL WHO MAY CLAIM UNDER IT,
INSOFAR AS IT OR THEY NOW OR HEREAFTER LAWFULLY MAY, HEREBY WAIVES THE BENEFIT
OF ALL SUCH LAWS.

       

      Section
12.5        Remedies
Cumulative.

       

      Each and
every right, power and remedy hereby specifically given to the Administrative
Agent and the Lenders shall be in addition to every other right, power and
remedy specifically given under this Agreement, the Orders or the other Loan
Documents or now or hereafter existing at law or in equity, or by statute and
each and every right, power and remedy whether specifically herein given or
otherwise existing may be exercised from time to time or simultaneously and as
often and in such order as may be deemed expedient by the Administrative Agent
or any Lender.  All such rights, powers and remedies shall be
cumulative and the exercise or the beginning of exercise of one shall not be
deemed a waiver of the right to exercise of any other or others.  No
delay or omission of the Administrative Agent or any Lender in the exercise of
any such right, power or remedy and no renewal or extension of any of the
Obligations shall impair any such right, power or remedy or shall be construed
to be a waiver of any Default or Event of Default or an acquiescence
therein.  In the event that the Administrative Agent shall bring any
suit to enforce any of its rights hereunder and shall be entitled to judgment,
then in such suit the Administrative Agent may recover reasonable expenses,
including reasonable attorneys’ fees, and the amounts thereof shall be included
in such judgment.

       

      Section
12.6        Discontinuance of
Proceeding.

       

      In case
the Administrative Agent shall have instituted any proceeding to enforce any
right, power or remedy under this Agreement by foreclosure, sale, entry or
otherwise, and such proceeding shall have been discontinued or abandoned for any
reason or shall have been determined adversely to the Administrative Agent, then
and in every such case the Borrower, the Administrative Agent and each holder of
any of the Obligations shall be restored to their former positions and rights
hereunder with respect to the Collateral subject to the Liens granted under this
Agreement and the Final Order, and all rights, remedies and powers of the
Administrative Agent and the Lenders shall continue as if no such proceeding had
been instituted.

       

      ARTICLE
XIII

      Miscellaneous

       

      Section
13.1        Amendments, Waivers,
Etc.

       

      (a)           No
amendment or waiver of any provision of this Agreement or any other Loan
Document nor consent to any departure by any Loan Party therefrom shall in any
event be effective unless the same shall be in writing and signed by the
Requisite Lenders (or by the Administrative Agent with the consent of the
Requisite Lenders); provided,
however, that any amendment, waiver or consent that would constitute a
Credit Impairment Event shall become effective only if approved in writing by
the Supermajority Lenders (or by the Administrative Agent with the consent of
the Supermajority Lenders); provided further, however,
that no amendment, waiver or consent shall, unless in writing and signed by each
Lender directly affected thereby (other than any Non-Funding Lender), in
addition to the consent of the Requisite Lenders or Supermajority Lenders, as
applicable (or the Administrative Agent with the consent thereof), do any of the
following:


      
        
           


        

        
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      (i)           increase
the Commitment of such Lender;

       

      (ii)          extend
the scheduled final maturity, or otherwise extend the maturity, of any Loan
(except pursuant to the Fifteen Month Facility Extension Option) owing to such
Lender, extend the expiration date of any Commitment hereunder, or waive, reduce
or postpone any scheduled date fixed for the payment or reduction of principal
or interest of any such Loan or fees owing to such Lender (it being understood
that Section 2.8 does not provide for
scheduled dates fixed for payment and no waiver of default rate interest
constitutes a waiver, reduction or postponement for purposes of this clause
(ii));

       

      (iii)         reduce,
or release the Borrower from its obligations to repay, the principal amount of
any Loan or Reimbursement Obligation owing to such Lender (other than by the
payment or prepayment thereof);

       

      (iv)         reduce
the rate of interest on any Loan or Reimbursement Obligation outstanding and
owing to such Lender or any fee payable hereunder to such Lender (it being
understood that the rescission of any election to impose (or waiver of any
imposition of) default rate interest shall not be deemed to be a reduction to
the rate of interest on any Loan or Reimbursement Obligation);

       

      (v)         except
as otherwise permitted by Section 2.19, expressly subordinate any of the
Obligations or any Liens securing the Obligations;

       

      (vi)         postpone
any scheduled date fixed for payment of interest or fees owing to such Lender or
waive any such payment;

       

      (vii)        release
all or substantially all of the Collateral or release all or substantially all
of the Guarantors from their obligations under Article XI;

       

      (viii)       amend
this Section 13.1 or either definition of
the terms “Credit Impairment
Event”, “Requisite
Lenders” or “Supermajority Lenders”,
“Revolving Percentage”, “Term
Percentage”, “Aggregate
Exposure Percentage” or “Majority Facility
Lenders”;

       

      and provided, further, that (x)
no amendment or consent which shall increase the aggregate Commitments of all
Lenders hereunder above the Commitments in effect on the Closing Date shall be
effective unless in writing and signed by each Lender, (y) no amendment or
consent which shall increase the aggregate principal amount of the Term Loans or
the Term Commitments of all Term Lenders hereunder above the Term Commitments in
effect on the Closing Date shall be effective unless in writing and signed by
the Majority Facility Lenders for the Term Facility or (z) any amendment, waiver
or consent which changes the definition of “Borrowing Base” or any
defined terms used in such definition shall be effective if in writing and
signed by (and only by) the Majority Facility Lenders for the Revolving
Facility; provided, further,
that the Administrative Agent may, with the consent of the Borrower,
amend, modify or supplement this Agreement or any other Loan Document to cure
any typographical error, defect or inconsistency, so long as such amendment,
modification or supplement does not adversely affect the rights of any Lender or
any Issuer.


      
        
           


        

        
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      (b)           The
Administrative Agent may, but shall have no obligation to, with the written
concurrence of any Lender, execute amendments, modifications, waivers or
consents on behalf of such Lender.  Any waiver or consent shall be
effective only in the specific instance and for the specific purpose for which
it was given.  No notice to or demand on the Borrower in any case
shall entitle the Borrower to any other or further notice or demand in similar
or other circumstances.

       

      (c)           If,
in connection with any proposed amendment, modification, waiver or termination
the consent of any Lender whose consent is required is not obtained (any such
Lender whose consent is not obtained as described in this Section 13.1 being referred to as a
“Non-Consenting
Lender”), then, at the Borrower’s request, any Eligible Assignee shall
purchase from such Non-Consenting Lender, and such Non-Consenting Lender agrees
that it shall, upon request made within 90 days of such non-consent, sell and
assign to the Lender acting as the Administrative Agent or such Eligible
Assignee, all of the Commitments, Revolving Outstandings and Term Loans of such
Non-Consenting Lender for an amount equal to the principal balance of all Loans
held by the Non-Consenting Lender and all accrued and unpaid interest and fees
with respect thereto through the date of sale; provided, however, that such
purchase and sale shall be recorded in the Register maintained by the
Administrative Agent and shall not be effective until (x) the Administrative
Agent shall have received from such Eligible Assignee an agreement in form and
substance reasonably satisfactory to the Administrative Agent and the Borrower
whereby such Eligible Assignee shall agree to be bound by the terms hereof and
(y) such Non-Consenting Lender shall have received payments of all Loans held by
it and all accrued and unpaid interest and fees with respect thereto through the
date of the sale.  Each Lender agrees that, if it becomes a
Non-Consenting Lender, it shall execute and deliver to the Administrative Agent
an Assignment an Acceptance to evidence such sale and purchase and shall deliver
to the Administrative Agent any Promissory Note (if the assigning Lender’s Loans
are evidenced by a Promissory Note) subject to such Assignment and Acceptance;
provided, however, that
the failure of any Non-Consenting Lender to execute an Assignment and Acceptance
shall not render such sale and purchase (and the corresponding assignment)
invalid and such assignment shall be recorded in the Register.

       

      Section
13.2        Expenses; Indemnity; Damage
Waiver

       

      (a)           The
Borrower shall pay (i) all reasonable out-of-pocket expenses incurred by the
Administrative Agent and its Related Parties, including the reasonable fees,
charges and disbursements of counsel for the Administrative Agent, in connection
with the syndication and distribution (including, without limitation, via the
internet or through a service such as Intralinks) of the 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 out-of-pocket expenses incurred by the Issuer
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 Issuer or any Lender,
including the fees, charges and disbursements of any counsel for the
Administrative Agent, the Issuer 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 13.2, 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, but subject to the limitations otherwise set forth
in this Agreement, reasonable out-of-pocket costs and expenses incurred in
connection with:


      
        
           


        

        
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      (i)           appraisals
and insurance reviews;

       

      (ii)          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;

       

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

       

      (iv)         taxes,
fees and other charges for (A) lien and title searches and title insurance and
(B) recording the Mortgages, filing financing statements and continuations, and
other actions to perfect, protect, and continue the Administrative Agent’s
Liens;

       

      (v)          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 after five Business Days
prior notice from the Administrative Agent; and

       

      (vi)         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.

       

      (b)           The
Borrower shall indemnify the Administrative Agent, the Issuer 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, liabilities and related expenses, including the 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 any other transactions
contemplated hereby, (ii) any Loan or Letter of Credit or the use of the
proceeds therefrom (including any refusal by the Issuer 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 Environmental Liabilities and Costs related in any way to the Borrower
or any of its Subsidiaries or (iv) any actual 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 are
determined by a court of competent jurisdiction by final and nonappealable
judgment to have resulted from the gross negligence or wilful misconduct of such
Indemnitee (or such Indemnitee’s Related Parties).  For the avoidance
of doubt, any indemnification for Taxes or Other Taxes shall be subject to the
terms and conditions of Section 2.16(c) and Section 2.16(e).

       

      (c)           To
the extent that the Borrower fails to pay any amount required to be paid by it
to the Administrative Agent or this Issuer under paragraph (a) or (b) above,
each Lender severally agrees to pay to the Administrative Agent or the Issuer,
as the case may be, such Lender's Aggregate Exposure 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 or the
Issuer in its capacity as such.


      
        
           


        

        
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      (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, 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 (including documentation reasonably supporting such
request).

       

      Section
13.3        Successors and
Assigns

       

      (a)           The
provisions of this Agreement shall be binding upon and inure to the benefit of
the parties hereto and their respective successors and assigns permitted hereby
(including any Affiliate of the Issuer 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
13.3.  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 Issuer that issues any Letter of Credit), Participants (to the extent
provided in Section 13.3(f)) and, to the extent expressly contemplated hereby,
the Related Parties of each of the Administrative Agent, the Issuer and the
Lenders) any legal or equitable right, remedy or claim under or by reason of
this Agreement.

       

      (b)           (i)
Subject to the conditions set forth in clause (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) of the Administrative Agent, provided that no consent of
the Administrative Agent shall be required for an assignment (x) of all or any
portion of a Loan to a Lender, an Affiliate of a Lender or an Approved Fund or
(y) upon the occurrence and during the continuance of any Event of Default and
(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, the amount of the Commitment or Loans of the assigning
Lender subject to each such assignment (determined as of the date the Assignment
and Acceptance with respect to such assignment is delivered to the
Administrative Agent) shall not be less than $5,000,000, unless the
Administrative Agent otherwise consents, (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, provided that this clause
shall not be construed to prohibit the assignment of a proportionate part of all
the assigning Lender’s rights and obligations in respect of either (x) Revolving
Loans or (y) Term Loans, (C) the parties to each assignment shall execute and
deliver to the Administrative Agent an Assignment and Acceptance, together with
a processing and recordation fee of $3,500 and (D) the assignee, if it
shall not be a Lender, shall deliver to the Administrative Agent the information
required by Section 2.16(e) and an Administrative Questionnaire in which the
assignee designates one or more 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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      (c)           Subject
to acceptance and recording thereof pursuant to Section 13.3(d), from and after
the effective date specified in each Assignment and Acceptance the assignee
thereunder shall be a party hereto and, to the extent of the interest assigned
by such Assignment and Acceptance, 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 Acceptance, be released from its
obligations under this Agreement (and, in the case of an Assignment and
Acceptance 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 2.14(b),  Section 2.15 and
Section 2.16, subject to the limitations set forth in Section
2.16(e)).  Any assignment or transfer by a Lender of rights or
obligations under this Agreement that does not comply with this Section 13.3
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 Section
13.3(f).

       

      (d)           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 Acceptance
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 Letter
of Credit Disbursements owing to, each Lender pursuant to the terms hereof from
time to time (the “Register”).  The
entries in the Register shall be conclusive absent manifest error, and the
Borrower, the Administrative Agent, the Issuer 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 Issuer and any Lender, at any reasonable time and from time to
time upon reasonable prior notice.

       

      (e)           Upon
its receipt of a duly completed Assignment and Acceptance 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 Section 13.3(b) and any written
consent to such assignment required by Section 13.3(b), the Administrative Agent
shall accept such Assignment and Acceptance 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 2.3(d), Section 2.3(e), Section 2.2(d) or Section 13.2(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.

       

      (f)            Any
Lender may, without the consent of the Borrower, the Administrative Agent or the
Issuer, 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 Issuer 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.  Subject to Section 13.3(g), the Borrower agrees that each
Participant shall be entitled to the benefits of Section 2.14(b), Section 2.15
and Section 2.16 (subject to the limitations set forth in Section 2.16(e)) to
the same extent as if it were a Lender and had acquired its interest by
assignment pursuant to paragraph (b) of this Section.


      
        
           


        

        
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      (g)           A
Participant shall not be entitled to receive any greater payment under Section
2.14(b), Section 2.15 and Section 2.16 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 Non-U.S. Lender if it were a Lender shall not be entitled to the benefits
of Section 2.16 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 2.16 as though it were a Lender.

       

      (h)           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 13.3 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.

       

      Section
13.4        Limitation of
Liability

       

      The
Borrower agrees that no Indemnitee shall have any liability (whether in
contract, tort or otherwise) to any Loan Party or any of their respective
Subsidiaries or any of their respective equity holders or creditors for or in
connection with the transactions contemplated hereby and in the other Loan
Documents, except to the extent such liability is determined in a final
non-appealable judgment by a court of competent jurisdiction to have resulted
primarily from such Indemnitee’s (or such Indemnitee’s Related Parties’) gross
negligence or willful misconduct.  In no event, however, shall any
Indemnitee or Loan Party be liable on any theory of liability for any special,
indirect, consequential or punitive damages (including, without limitation, any
loss of profits, business or anticipated savings).  Each of the
parties hereto hereby waives, releases and agrees (each for itself and on behalf
of its Subsidiaries) not to sue upon any such claim for any special, indirect,
consequential or punitive damages, whether or not accrued and whether or not
known or suspected to exist in its favor.

       

      Section
13.5        Right of
Set-off

       

      Subject
to the terms of the Orders, upon the occurrence and during the continuance of
any Event of Default each Lender and each Affiliate of a Lender may with the
express written consent of the Requisite Lenders (and that, it shall, to the
extent lawfully entitled to do so, upon the request of the Requisite Lenders) at
any time and from time to time, to the fullest extent permitted by law, set off
and apply any and all deposits (general or special, time or demand, provisional
or final, but excluding any trust or fiduciary account) at any time held and
other Indebtedness at any time owing by such Lender or its Affiliates to or for
the credit or the account of the Borrower against any and all of the Obligations
now or hereafter existing whether or not such Lender shall have made any demand
under this Agreement or any other Loan Document and even though such Obligations
may be unmatured.  Each Lender agrees promptly to notify the Borrower
after any such set-off and application made by such Lender or its Affiliates;
provided, however, to
the extent permitted by applicable law, that the failure to give such notice
shall not affect the validity of such set-off and application.


      
        
           


        

        
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      Section
13.6        Sharing of Payments,
Etc.

       

      (a)           Subject
to (i) the Carve Out and (ii) the Interim Order (or the Final Order, as
applicable), notwithstanding the provisions of Section 362 of the Bankruptcy
Code, if any Revolving Lender (directly or through an Affiliate thereof) obtains
any payment (whether voluntary, involuntary, through the exercise of any right
of set-off (including pursuant to Article XII, Section 13.5 or otherwise) of the
Revolving Loans owing to it, any interest thereon, fees in respect thereof or
amounts due pursuant to Section 13.2 (other than payments
pursuant to Section 2.14, Section 2.15 or Section 2.16 or as otherwise set forth
herein) or otherwise receives any Collateral or any Proceeds of Collateral
(other than payments pursuant to Section 2.14, Section 2.15 or Section 2.16 or
as otherwise set forth herein) (in each case, whether voluntary, involuntary,
through the exercise of any right of set-off or otherwise (including pursuant to
Section 13.5) in excess of its Revolving Percentage of all payments of such
Obligations obtained by all the Revolving Lenders, such Revolving Lender (a “
Revolving Purchasing Lender”) shall
forthwith purchase from the other Revolving Lenders (each, a “Revolving Selling Lender”) such
participations in their Revolving Loans or other related Obligations as shall be
necessary to cause such Revolving Purchasing Lender to share the excess payment
ratably with each of them.

       

      (b)           Subject
to (i) the Carve Out and (ii) the Interim Order (or the Final Order, as
applicable), notwithstanding the provisions of Section 362 of the Bankruptcy
Code, if any Term Lender (directly or through an Affiliate thereof) obtains any
payment (whether voluntary, involuntary, through the exercise of any right of
set-off (including pursuant to Article XII, Section 13.5 or otherwise) of the
Term Loans owing to it, any interest thereon, fees in respect thereof or amounts
due pursuant to Section 13.2 (other than payments pursuant to Section 2.14,
Section 2.15 or Section 2.16 or as otherwise set forth herein) or otherwise
receives any Collateral or any Proceeds of Collateral (other than payments
pursuant to Section 2.14, Section 2.15 or Section 2.16 or as otherwise set forth
herein) (in each case, whether voluntary, involuntary, through the exercise of
any right of set-off or otherwise (including pursuant to Section 13.5) in excess
of its Term Percentage of all payments of such Obligations obtained by all the
Term Lenders, such Term Lender (a “ Term Purchasing Lender”; together
with the Revolving Purchasing Lenders, a “Purchasing Lender”) shall
forthwith purchase from the other Term Lenders (each, a “Term Selling Lender” ; together
with the Term Selling Lenders, a “Selling Lender”)) such
participations in their Term Loans or other related Obligations as shall be
necessary to cause such Term Purchasing Lender to share the excess payment
ratably with each of them.

       

      (c)           If
all or any portion of any payment received by a Purchasing Lender is thereafter
recovered from such Purchasing Lender, such purchase from each Selling Lender
shall be rescinded and such Selling Lender shall repay to the Purchasing Lender
the purchase price to the extent of such recovery together with an amount equal
to such Selling Lender’s ratable share (according to the proportion of (i) the
amount of such Selling Lender’s required repayment in relation to (ii) the total
amount so recovered from the Purchasing Lender) of any interest or other amount
paid or payable by the Purchasing Lender in respect of the total amount so
recovered.

       

      (d)           The
Borrower agrees that any Purchasing Lender so purchasing a participation from a
Selling Lender pursuant to this Section 13.6 may, to the fullest
extent permitted by law, exercise all its rights of payment (including the right
of set-off) with respect to such participation as fully as if such Lender were
the direct creditor of the Borrower in the amount of such
participation.

       

      (e)           Notwithstanding
any in this Section 13.6 to the contrary, the provisions of Section 2.12(g)
shall be applicable with respect to the receipt of any Collateral or
Proceeds.


      
        
           


        

        
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      Section
13.7        Notices, Etc.

       

      (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 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, as follows:

       

      if to the
Borrower:

       

      U.S.
Concrete

       

      2925
Briarpark, Suite 1050

       

      Houston,
Texas  77042

       

      Attention:  General
Counsel

       

      Telecopy
no:  (713) 499-6201

       

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


       

      with a
copy to:

       

      Kirkland
& Ellis LLP

      300 North
LaSalle Street

      Chicago,
Illinois 60654

      Attention:
Patrick Nash and Michelle Kilkenney

      Telephone
No. (312) 862-2000

       

      Facsimile:
312-862-2200

       

      if to the
Administrative Agent:

       

      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


       

      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 (i) sent by hand or overnight courier service,
or mailed by certified or registered mail, shall be deemed to have been given
when received or (ii) 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 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 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
13.8        No Waiver;
Remedies

       

      No
failure on the part of any Lender, Issuer or the Administrative Agent to
exercise, and no delay in exercising, any right hereunder shall operate as a
waiver thereof; nor shall any single or partial exercise of any such right
preclude any other or further exercise thereof or the exercise of any other
right.  The remedies herein provided are cumulative and not exclusive
of any remedies provided by law.

       

      Section
13.9        Governing Law

       

      THIS
AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HERETO SHALL BE GOVERNED
BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF
NEW YORK, AND TO THE EXTENT APPLICABLE, THE BANKRUPTCY CODE.

       

      Section
13.10      Submission to Jurisdiction; Service of
Process

       

      (a)           Any
legal action or proceeding with respect to this Agreement or any other Loan
Document may be brought in the courts of the Bankruptcy Court and, if the
Bankruptcy Court does not have (or abstains from) jurisdiction, to the
non-exclusive general jurisdiction of any State or Federal court of competent
jurisdiction sitting in New York County, New York;.  The parties
hereto hereby irrevocably waive any objection, including any objection to the
laying of venue or based on the grounds of forum non conveniens, that any of
them may now or hereafter have to the bringing of any such action or proceeding
in such respective jurisdictions.

       

      (b)           The
Borrower irrevocably consents to the service of any and all process in any suit,
action or proceeding brought in the United States of America by the mailing (by
registered or certified mail, postage prepaid) of copies of such process to the
Borrower at its address specified in Section 13.7.  The Borrower
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.


      
        
           


        

        
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    (c)           Nothing
contained in this Section 13.11 shall affect the right
of the Administrative Agent or any Lender to serve process in any other manner
permitted by law or commence legal proceedings or otherwise proceed against the
Borrower or any other Loan Party in any other jurisdiction.

     

    (d)           If
for the purposes of obtaining judgment in any court it is necessary to convert a
sum due hereunder in Dollars into another currency, the parties hereto agree, to
the fullest extent that they may effectively do so, that the rate of exchange
used shall be that at which in accordance with normal banking procedures the
Administrative Agent could purchase Dollars with such other currency at the spot
rate of exchange quoted by the Administrative Agent at 11:00 a.m. (New York
time) on the Business Day preceding that on which final judgment is given, for
the purchase of Dollars, for delivery 2 Business Days thereafter.

     

    Section
13.11      Waiver of Jury Trial

     

    Each
of the Administrative Agent, the Lenders, the Issuers and the Borrower
irrevocably waives trial by jury in any action or proceeding with respect to
this Agreement or any other Loan Document.

     

    Section
13.12      Bankruptcy Court Pleadings

     

    No Loan
Party will without the express consent of the Administrative Agent (a) mention
in any pleading or argument before the Bankruptcy Court in support of, or in any
way relating to, a position that Bankruptcy Court authorization should be
granted on the ground that such authorization is permitted by this Agreement
(unless a Person opposing any such pleading or argument relies on this Agreement
to assert or question the propriety of such) or (b) in any way attempt to
support a position before the Bankruptcy Court based on the provisions of this
Agreement.

     

    Section
13.13      Marshaling; Payments Set
Aside

     

    None of
the Administrative Agent, any Lender or any Issuer shall be under any obligation
to marshal any assets in favor of the Borrower or any other party or against or
in payment of any or all of the Obligations.  To the extent that the
Borrower makes a payment or payments to the Administrative Agent, the Lenders or
the Issuers or any such Person receives payment from the proceeds of the
Collateral or exercise their rights of setoff, and such payment or payments or
the proceeds of such enforcement or setoff or any part thereof are subsequently
invalidated, declared to be fraudulent or preferential, set aside or required to
be repaid to a trustee, receiver or any other party, then to the extent of such
recovery, the obligation or part thereof originally intended to be satisfied,
and all Liens, right and remedies therefor, shall be revived and continued in
full force and effect as if such payment had not been made or such enforcement
or setoff had not occurred.

     

    Section
13.14      Section Titles

     

    The
section titles contained in this Agreement are and shall be without substantive
meaning or content of any kind whatsoever and are not a part of the agreement
between the parties hereto, except when used to reference a
section.


    
      
         


      

      
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    Section
13.15      Execution in Counterparts

     

    This
Agreement may be executed in any number of counterparts and by different parties
in separate counterparts, each of which when so executed shall be deemed to be
an original and all of which taken together shall constitute one and the same
agreement.  Signature pages may be detached from multiple separate
counterparts and attached to a single counterpart so that all signature pages
are attached to the same document.  Delivery of an executed signature
page of this Agreement by facsimile transmission or email shall be as effective
as delivery of a manually executed counterpart hereof.  A set of the
copies of this Agreement signed by all parties shall be lodged with the Borrower
and the Administrative Agent.

     

    Section
13.16      Entire Agreement

     

    This
Agreement, together with all of the other Loan Documents and all certificates
and documents delivered hereunder or thereunder, embodies the entire agreement
of the parties and supersedes all prior agreements and understandings relating
to the subject matter hereof, except to the extent otherwise expressly provided
in the Commitment Letter dated as of March 22, 2010.  Subject to
the terms of Section 2.22, In the event of any conflict between the terms of
this Agreement and any other Loan Document, the terms of this Agreement shall
govern.

     

    Section
13.17      Confidentiality

     

    Each
Lender and the Administrative Agent agree to use all reasonable efforts to keep
information obtained by it pursuant hereto and the other Loan Documents
confidential in accordance with such Lender’s or the Administrative Agent’s, as
the case may be, customary practices and agrees that it shall only use such
information in connection with the transactions contemplated by this Agreement
and not disclose any such information other than (a) to such Lender’s or the
Administrative Agent’s, as the case may be, employees, representatives and
agents that are or are expected to be involved in the evaluation of such
information in connection with the transactions contemplated by this Agreement
and are advised of the confidential nature of such information, (b) to the
extent such information presently is or hereafter becomes available to such
Lender or the Administrative Agent, as the case may be, on a non-confidential
basis from a source other than the Borrower or any other Loan Party, (c) to the
extent disclosure is required by law, regulation or judicial order or requested
or required by bank regulators or auditors, (d) if requested in the Cases or (e)
to current or prospective assignees and Participants, contractual counterparties
in any Hedging Contract permitted hereunder and to their respective legal or
financial advisors, in each case and to the extent such assignees, Participants,
grantees or counterparties agree to be bound by the provisions of this Section
13.18.  Notwithstanding any other provision in this Agreement, the
Administrative Agent, the Arranger and the Lenders hereby agree that the
Borrower and each of its officers, directors, employees, accountants, attorneys
and other advisors may disclose to any and all persons, without limitation of
any kind, the U.S. tax treatment and U.S. tax structure of the Facilities and
the transactions contemplated hereby and all materials of any kind (including
opinions and other tax analyses) that are provided to each of them relating to
such U.S. tax treatment and U.S. tax structure.

     

    Section
13.18      Patriot Act Notice

     

    Each
Lender subject to the Patriot Act hereby notifies the Borrower that, pursuant to
Section 326 of the Patriot Act, it is required to obtain, verify and record
information that identifies the Borrower, including, the name and address of the
Borrower and other information that will allow such Lender to identify the
Borrower in accordance with the Patriot Act.


    
      
         


      

      
        115

        
          

        

      

      
         


      

    


    In
Witness Whereof, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized, as of the date
first above written.

     

    
      
        
          
            
              
                
                  	
                          U.S.
      Concrete, Inc.

                        
	 
      	
                          as
      Borrower

                        
	 
      	 
      	 
      
	
                          By:

                        	
                          /s/ Robert D. Hardy

                        
	 
      	
                          Name:

                        	
                          Robert
      D. Hardy

                        
	 
      	
                          Title:

                        	
                          Executive
      Vice President and Chief Financial

                        
	 
      	 
      	
                          Officer

                        


                

              

            

          

        

      

    

     

    
      
        	
                ALBERTA
      INVESTMENTS, INC.

              
	
                ALLIANCE
      HAULERS, INC.

              
	
                AMERICAN
      CONCRETE PRODUCTS, INC.

              
	
                ATLAS
      REDI-MIX, LLC

              
	
                ATLAS-TUCK
      CONCRETE, INC.

              
	
                BEALL
      CONCRETE ENTERPRISES, LLC

              
	
                BEALL
      INDUSTRIES, INC.

              
	
                BEALL
      INVESTMENT CORPORATION, INC.

              
	
                BEALL
      MANAGEMENT, INC.

              
	
                BUILDERS’
      REDI-MIX, LLC

              
	
                BWB,
      INC. OF MICHIGAN

              
	
                CENTRAL
      CONCRETE SUPPLY CO., INC.

              
	
                CENTRAL
      PRECAST CONCRETE, INC.

              
	
                HAMBURG
      QUARRY LIMITED LIABILITY COMPANY

              
	
                INGRAM
      CONCRETE, LLC

              
	
                MG,
      LLC

              
	
                REDI-MIX
      CONCRETE, L.P.

              
	
                REDI-MIX
      GP, LLC

              
	
                REDI-MIX,
      LLC

              
	
                SAN
      DIEGO PRECAST CONCRETE, INC.

              
	
                SIERRA
      PRECAST, INC.

              
	
                SMITH
      PRE-CAST, INC.

              
	
                SUPERIOR
      CONCRETE MATERIALS, INC.

              
	
                U.S.
      CONCRETE ON-SITE, INC.

              
	
                USC
      MANAGEMENT CO., LLC

              
	
                USC
      PAYROLL, INC.

              
	
                USC
      TECHNOLOGIES, INC., each
      as a Guarantor

              


      

    

    


    
      
        
          
            	
                    By:

                  	
                     /s/ Curt M.
  Lindeman

                  
	 
      	
                    Name:

                  	
                    Curt
      M. Lindeman

                  
	 
      	
                    Title:

                  	
                    Vice
      President and
Secretary

                  


          

        

      

    


    
      
         


      

      
         


        
          

        

      

      
         


      

    

    


    
      
        	
                KURTZ
      GRAVEL COMPANY

              
	
                SUPERIOR
      HOLDINGS, INC.

              
	
                TITAN
      CONCRETE INDUSTRIES, INC., each as a

                Guarantor

              


      

    

    


    
      
        
          
            
              
                	
                        By:
      

                      	/s/
      Robert D. Hardy
	 
      	
                        Name:

                      	
                        Robert
      D. Hardy

                      
	 
      	
                        Title:

                      	
                        Vice
      President and
Secretary

                      


              

            

          

        

      

    

    


    
      
        
          
            
              
                
                  
                    	
                            BRECKENRIDGE
      READY MIX, INC, as a
      Guarantor

                          
	 
      	 
      	 
      
	
                            By:
      

                          	/s/
      Robert D. Hardy
	 
      	
                            Name:

                          	
                            Robert
      D. Hardy

                          
	 
      	
                            Title:

                          	
                            Vice
      President

                          


                  

                

              

            

          

        

      

    

    


    
      
        
          
            
              
                
                  	
                          RIVERSIDE
      MATERIALS, LLC, as a
      Guarantor

                        
	 
      	 
      	 
      
	
                          By:

                        	
                          /s/ Robert D. Hardy

                        
	 
      	
                          Name:

                        	
                          Robert
      D. Hardy

                        
	 
      	
                          Title:

                        	
                          President
      and
Secretary

                        


                

              

            

          

        

      

    

    


    
      
        
          
            
              
                
                  
                    
                      	
                              EASTERN
      CONCRETE MATERIALS, INC., as a

                              Guarantor

                            
	 
      	 
      	 
      
	
                              By:
      

                            	/s/
      Robert D. Hardy
	 
      	
                              Name:

                            	
                              Robert
      D. Hardy

                            
	 
      	
                              Title:

                            	
                              President
      and
Secretary

                            


                    

                  

                

              

            

          

        

      

    

    


    
      
        
          	
                  LOCAL
      CONCRETE SUPPLY & EQUIPMENT, LLC

                
	
                  MASTER
      MIX CONCRETE, LLC

                
	
                  MASTER
      MIX, LLC

                
	
                  NYC
      CONCRETE MATERIALS, LLC

                
	
                  PEBBLE
      LANE ASSOCIATES, LLC,
      each as a

                  Guarantor

                


        

      

    

    


    
      
        
          
            	
                    By:

                  	
                     /s/ Curt M.
  Lindeman

                  
	 
      	
                    Name:

                  	
                    Curt
      M. Lindeman

                  
	 
      	
                    Title:

                  	
                    President
      and Secretary

                  


          

        

      

    


    
      
         


      

      
         


        
          

        

      

      
         


      

    

    


    
      
        
          
            
              
                
                  
                    
                      
                        
                          
                            
                              	
                                      CONCRETE
      XXXIII ACQUISITION, INC.

                                    
	
                                      CONCRETE
      XXXIV ACQUISITION, INC.

                                    
	
                                      CONCRETE
      XXXV ACQUISITION, INC.

                                    
	
                                      CONCRETE
      XXXVI ACQUISITION, INC.,
      each as a Guarantor

                                    
	 
      	 
      	 
      
	
                                      By:

                                    	
                                       /s/ Curt M.
  Lindeman

                                    
	 
      	
                                      Name:

                                    	
                                      Curt
      M. Lindeman

                                    
	 
      	
                                      Title:

                                    	
                                      President

                                    


                            

                          

                        

                      

                    

                  

                

              

            

          

        

      

    

    


    
      
        
          
            
              
                
                  
                    
                      
                        
                          
                            
                              	
                                      CONCRETE
      ACQUISITION III, LLC

                                    
	
                                      CONCRETE
      ACQUISITION IV, LLC

                                    
	
                                      CONCRETE
      ACQUISITION V, LLC

                                    
	
                                      CONCRETE
      ACQUISITION VI, LLC,
      each as a

                                      Guarantor

                                    
	 
      	 
      	 
      
	
                                      By:

                                    	
                                       /s/ Curt M.
  Lindeman

                                    
	 
      	
                                      Name:

                                    	
                                      Curt
      M. Lindeman

                                    
	 
      	
                                      Title:

                                    	
                                      President

                                    


                            

                          

                        

                      

                    

                  

                

              

            

          

        

      

    

    


    
      
        
          
            
              
                
                  
                    	
                            USC
      ATLANTIC, INC., as a
      Guarantor

                          
	 
      	 
      	 
      
	
                            By:

                          	
                             /s/ Sean M. Gore

                          
	 
      	
                            Name:

                          	
                            Sean
      M. Gore

                          
	 
      	
                            Title:

                          	
                            Vice
      President and Secretary

                          
	 
      	 
      	 
      
	
                            USC
      MICHIGAN, INC., as a
      Guarantor

                          
	 
      	 
      	 
      
	
                            By:

                          	
                             /s/ Michael W.
  Harlan

                          
	 
      	
                            Name:

                          	
                            Michael
      W. Harlan

                          
	 
      	
                            Title:

                          	
                            Vice
      President and
Secretary

                          


                  

                

              

            

          

        

      

    


    
      
         


      

      
         


        
          

        

      

      
         


      

    

     

    
      
        
          
            
              	
                      JPMorgan
      Chase Bank, N.A., as
      Administrative

                      Agent, Issuer and
      Lender

                    
	 
      	 
      	 
      
	
                      By:

                    	
                       /s/ Mario
  Quintanilla

                    
	 
      	
                      Name:

                    	
                      Mario
      Quintanilla

                    
	 
      	
                      Title:

                    	
                      Vice
      President

                    


            

          

        

      

    


    
      
         


      

      
         


        
          

        

      

      
         


      

    

    


    
      
        
          
            
              
                
                  	
                          TENNENBAUM
      DIP OPPORTUNITY FUND, LLC

                        
	 
      	 
      	 
      
	
                          By:

                        	
                          TENNENBAUM
      CAPITAL PARTNERS, LLC

                        
	
                          Its:

                        	
                          Investment
      Manager

                        
	 
      	 
      	 
      
	
                          By:

                        	
                          /s/ David Hollander

                        
	 
      	
                          Name:

                        	
                          David
      Hollander

                        
	 
      	
                          Title:

                        	
                          Partner

                        


                

              

            

          

        

      

    


    
      
         


      

      
         


        
          

        

      

      
         


      

    

    


    
      
        
          
            
              	
                      CITIGROUP
      FINANCIAL PRODUCTS, INC.

                    
	 
      	 
      	 
      
	
                      By:

                    	
                       /s/ Marc Heimowitz

                    
	 
      	
                      Name:

                    	
                      Marc
      Heimowitz

                    
	 
      	
                      Title:

                    	
                      Managing
      Director

                    


            

          

        

      

    


    
      
         


      

      
         


        
          

        

      

      
         


      

    

    


    
      
        
          
            
              	
                      WHITEBOX
      HEDGE HIGH YIELD PARTNERS, L.P.

                    
	 
      	 
      	 
      
	
                      By:

                    	
                       /s/ Mark Strefling

                    
	 
      	
                      Name:

                    	
                      Mark
      Strefling

                    
	 
      	
                      Title:

                    	
                      CLO

                    


            

          

        

      

    


    
      
         


      

      
         


        
          

        

      

      
         


      

    

    


    
      
        
          
            
              	
                      WHITEBOX
      COMBINED PARTNERS, L.P.

                    
	 
      	 
      	 
      
	
                      By:

                    	
                       /s/ Mark Strefling

                    
	 
      	
                      Name:

                    	
                      Mark
      Strefling

                    
	 
      	
                      Title:

                    	
                      CLO

                    


            

          

        

      

    


    
      
         


      

      
         


        
          

        

      

      
         


      

    

    


    
      
        
          
            
              
                
                  
                    	
                            DEUTSCHE
      BANK AG CAYMAN ISLANDS

                            BRANCH

                          
	
                            By:
      DB Services New Jersey, Inc.

                          
	 
      	 
      	 
      
	
                            By:

                          	
                             /s/ Jonathan Shin

                          
	 
      	
                            Name:

                          	
                            Jonathan
      Shin

                          
	 
      	
                            Title:

                          	
                            Assistant
      Vice President

                          
	 
      	 
      	 
      
	
                            By:

                          	
                             /s/ Peter Schoepe

                          
	 
      	
                            Name:

                          	
                            Peter
      Schoepe

                          
	 
      	
                            Title:

                          	
                            Assistant
      Vice
President