exv10w1



 






Exhibit 10.1



 




Eagle Materials Inc.



$40,000,000 5.25% Series 2005A Senior Notes, Tranche A


due November 15, 2012



$80,000,000 5.38% Series 2005A Senior Notes, Tranche B


due November 15, 2015



$80,000,000 5.48% Series 2005A Senior Notes, Tranche C


due November 15, 2017



 





Note Purchase Agreement



 





Dated as of November 15, 2005



 




 









 





Table of Contents




	 	 	 	 	 	 	 
	Section	 	Heading	 	Page	 
	Section 1.	 	Authorization of Notes
	 	 	 1	 
	 	 	 
	 	 	 	 
	     Section 1.1.	 	Description of Notes
	 	 	1	 
	     Section 1.2.	 	Interest Rate
	 	 	2	 
	 	 	 
	 	 	 	 
	Section 2.	 	Sale and Purchase of Notes
	 	 	 2	 
	 	 	 
	 	 	 	 
	     Section 2.1.	 	Series 2005A Notes
	 	 	2	 
	     Section 2.1.	 	Additional Series of Notes
	 	 	2	 
	     Section 2.3.	 	Subsidiary Guaranty
	 	 	4	 
	 	 	 
	 	 	 	 
	Section 3.	 	Closing
	 	 	 4	 
	 	 	 
	 	 	 	 
	Section 4.	 	Conditions to Closing
	 	 	 5	 
	 	 	 
	 	 	 	 
	     Section 4.1.	 	Representations and Warranties
	 	 	5	 
	     Section 4.2.	 	Performance; No Default
	 	 	5	 
	     Section 4.3.	 	Compliance Certificates
	 	 	5	 
	     Section 4.4.	 	Opinions of Counsel
	 	 	6	 
	     Section 4.5.	 	Purchase Permitted By Applicable Law, Etc
	 	 	6	 
	     Section 4.6.	 	Sale of Other Notes
	 	 	6	 
	     Section 4.7.	 	Payment of Special Counsel Fees
	 	 	6	 
	     Section 4.8.	 	Private Placement Number
	 	 	7	 
	     Section 4.9.	 	Changes in Corporate Structure
	 	 	7	 
	     Section 4.10.	 	Subsidiary Guaranty
	 	 	7	 
	     Section 4.11.	 	Funding Instructions
	 	 	7	 
	     Section 4.12.	 	Proceedings and Documents
	 	 	7	 
	 	 	 
	 	 	 	 
	Section 5.	 	Representations and Warranties of the Company
	 	 	 7	 
	 	 	 
	 	 	 	 
	     Section 5.1.	 	Organization; Power and Authority
	 	 	7	 
	     Section 5.2.	 	Authorization, Etc
	 	 	8	 
	     Section 5.3.	 	Disclosure
	 	 	8	 
	     Section 5.4.	 	Organization and Ownership of Shares of Subsidiaries; Affiliates
	 	 	8	 
	     Section 5.5.	 	Financial Statements; Material Liabilities
	 	 	9	 
	     Section 5.6.	 	Compliance with Laws, Other Instruments, Etc
	 	 	9	 
	     Section 5.7.	 	Governmental Authorizations, Etc
	 	 	9	 
	     Section 5.8.	 	Litigation; Observance of Agreements, Statutes and Orders
	 	 	9	 
	     Section 5.9.	 	Taxes
	 	 	10	 
	     Section 5.10.	 	Title to Property; Leases
	 	 	10	 
	     Section 5.11.	 	Licenses, Permits, Etc
	 	 	10	 
	     Section 5.12.	 	Compliance with ERISA
	 	 	11	 






-i-









 






	 	 	 	 	 	 	 
	Section	 	Heading	 	Page	 
	     Section 5.13.	 	Private Offering by the Company
	 	 	11	 
	     Section 5.14.	 	Use of Proceeds; Margin Regulations
	 	 	12	 
	     Section 5.15.	 	Existing Debt; Future Liens
	 	 	12	 
	     Section 5.16.	 	Foreign Assets Control Regulations, Etc
	 	 	13	 
	     Section 5.17.	 	Status under Certain Statutes
	 	 	13	 
	     Section 5.18.	 	Environmental Matters
	 	 	13	 
	     Section 5.19.	 	Notes Rank Pari Passu
	 	 	14	 
	 	 	 
	 	 	 	 
	Section 6.	 	Representations of the Purchaser
	 	 	14	 
	 	 	 
	 	 	 	 
	     Section 6.1.	 	Purchase for Investment
	 	 	14	 
	     Section 6.2.	 	Accredited Investor
	 	 	14	 
	     Section 6.3.	 	Source of Funds
	 	 	14	 
	 	 	 
	 	 	 	 
	Section 7.	 	Information as to Company
	 	 	16	 
	 	 	 
	 	 	 	 
	     Section 7.1.	 	Financial and Business Information
	 	 	16	 
	     Section 7.2.	 	Officer’s Certificate
	 	 	19	 
	     Section 7.3.	 	Visitation
	 	 	19	 
	 	 	 
	 	 	 	 
	Section 8.	 	Payment of the Notes
	 	 	20	 
	 	 	 
	 	 	 	 
	     Section 8.1.	 	Required Prepayments
	 	 	20	 
	     Section 8.2.	 	Optional Prepayments with Make-Whole Amount
	 	 	20	 
	     Section 8.3.	 	Allocation of Partial Prepayments
	 	 	20	 
	     Section 8.4.	 	Maturity; Surrender, Etc.
	 	 	20	 
	     Section 8.5.	 	Purchase of Notes
	 	 	21	 
	     Section 8.6.	 	Make-Whole Amount for the Series 2005A Notes
	 	 	21	 
	 	 	 
	 	 	 	 
	Section 9.	 	Affirmative Covenants
	 	 	22	 
	 	 	 
	 	 	 	 
	     Section 9.1.	 	Compliance with Law
	 	 	22	 
	     Section 9.2.	 	Insurance
	 	 	23	 
	     Section 9.3.	 	Maintenance of Properties
	 	 	23	 
	     Section 9.4.	 	Payment of Taxes and Claims
	 	 	23	 
	     Section 9.5.	 	Corporate Existence, Etc
	 	 	23	 
	     Section 9.6.	 	Designation of Subsidiaries
	 	 	24	 
	     Section 9.7.	 	Notes to Rank Pari Passu
	 	 	24	 
	     Section 9.8.	 	Additional Subsidiary Guarantors
	 	 	24	 
	     Section 9.9.	 	Books and Records
	 	 	25	 
	 	 	 
	 	 	 	 
	Section 10.	 	Negative Covenants
	 	 	25	 
	 	 	 
	 	 	 	 
	     Section 10.1.	 	Consolidated Debt to Consolidated EBITDA
	 	 	25	 
	     Section 10.2.	 	Priority Debt
	 	 	25	 
	     Section 10.3.	 	Limitation on Liens
	 	 	25	 
	     Section 10.4.	 	Sales of Assets
	 	 	27	 
	     Section 10.5.	 	Merger and Consolidation
	 	 	28	 
	     Section 10.6.	 	Transactions with Affiliates
	 	 	29	 






-ii-









 






	 	 	 	 	 	 	 
	Section	 	Heading	 	Page	 
	     Section 10.7.	 	Terrorism Sanctions Regulations
	 	 	29	 
	 	 	 
	 	 	 	 
	Section 11.	 	Events of Default
	 	 	29	 
	 	 	 
	 	 	 	 
	Section 12.	 	Remedies on Default, Etc
	 	 	32	 
	 	 	 
	 	 	 	 
	     Section 12.1.	 	Acceleration
	 	 	32	 
	     Section 12.2.	 	Other Remedies
	 	 	32	 
	     Section 12.3.	 	Rescission
	 	 	32	 
	     Section 12.4.	 	No Waivers or Election of Remedies, Expenses, Etc
	 	 	33	 
	 	 	 
	 	 	 	 
	Section 13.	 	Registration; Exchange; Substitution of Notes
	 	 	33	 
	 	 	 
	 	 	 	 
	     Section 13.1.	 	Registration of Notes
	 	 	33	 
	     Section 13.2.	 	Transfer and Exchange of Notes
	 	 	33	 
	     Section 13.3.	 	Replacement of Notes
	 	 	34	 
	 	 	 
	 	 	 	 
	Section 14.	 	Payments on Notes
	 	 	34	 
	 	 	 
	 	 	 	 
	     Section 14.1.	 	Place of Payment
	 	 	34	 
	     Section 14.2.	 	Home Office Payment
	 	 	34	 
	 	 	 
	 	 	 	 
	Section 15.	 	Expenses, Etc
	 	 	35	 
	 	 	 
	 	 	 	 
	     Section 15.1.	 	Transaction Expenses
	 	 	35	 
	     Section 15.2.	 	Survival
	 	 	35	 
	 	 	 
	 	 	 	 
	Section 16.	 	Survival of Representations and Warranties; Entire Agreement
	 	 	36	 
	 	 	 
	 	 	 	 
	Section 17.	 	Amendment and Waiver
	 	 	36	 
	 	 	 
	 	 	 	 
	     Section 17.1.	 	Requirements
	 	 	36	 
	     Section 17.2.	 	Solicitation of Holders of Notes
	 	 	36	 
	     Section 17.3.	 	Binding Effect, Etc
	 	 	37	 
	     Section 17.4.	 	Notes Held by Company, Etc
	 	 	37	 
	 	 	 
	 	 	 	 
	Section 18.	 	Notices
	 	 	38	 
	 	 	 
	 	 	 	 
	Section 19.	 	Reproduction of Documents
	 	 	38	 
	 	 	 
	 	 	 	 
	Section 20.	 	Confidential Information
	 	 	39	 
	 	 	 
	 	 	 	 
	Section 21.	 	Substitution of Purchaser
	 	 	40	 
	 	 	 
	 	 	 	 
	Section 22.	 	Miscellaneous
	 	 	40	 
	 	 	 
	 	 	 	 





-iii-









 






	 	 	 	 	 	 	 
	Section	 	Heading	 	Page	 
	     Section 22.1.	 	Successors and Assigns
	 	 	40	 
	     Section 22.2.	 	Payments Due on Non-Business Days
	 	 	40	 
	     Section 22.3.	 	Accounting Terms
	 	 	41	 
	     Section 22.4.	 	Severability
	 	 	41	 
	     Section 22.5.	 	Construction
	 	 	41	 
	     Section 22.6.	 	Counterparts
	 	 	41	 
	     Section 22.7.	 	Governing Law
	 	 	41	 
	     Section 22.8.	 	Jurisdiction and Process; Waiver of Jury Trial
	 	 	41	 






-iv-









 






	 	 	 	 	 
	Schedule A	 	—	 	Information Relating to Purchasers

	 	 	 	 	 

	Schedule B	 	—	 	Defined Terms

	 	 	 	 	 

	Schedule 4.9	 	—	 	Changes in Corporate Structure

	 	 	 	 	 

	Schedule 5.4	 	—	 	Subsidiaries of the Company, Ownership of Subsidiary Stock, Affiliates

	 	 	 	 	 

	Schedule 5.5	 	—	 	Financial Statements

	 	 	 	 	 

	Schedule 5.11	 	—	 	Licenses, Permits, Etc.

	 	 	 	 	 

	Schedule 5.15	 	—	 	Existing Debt; Future Liens

	 	 	 	 	 

	Schedule 10.3	 	—	 	Existing Liens

	 	 	 	 	 

	Exhibit 1(a)	 	—	 	Form of 5.25% Series 2005A Senior Notes, Tranche A, due November 15, 2012

	 	 	 	 	 

	Exhibit 1(b)	 	—	 	Form of 5.38% Series 2005A Senior Notes, Tranche B, due November 15, 2015

	 	 	 	 	 

	Exhibit 1(c)	 	—	 	Form of 5.48% Series 2005A Senior Notes, Tranche C, due November 15, 2017

	 	 	 	 	 

	Exhibit 2.3	 	—	 	Form of Subsidiary Guaranty

	 	 	 	 	 

	Exhibit 4.4(a)	 	—	 	Form of Opinion of General Counsel to the Company

	 	 	 	 	 

	Exhibit 4.4(b)	 	—	 	Form of Opinion of Special Counsel to the Company

	 	 	 	 	 

	Exhibit 4.4(c)	 	—	 	Form of Opinion of Special Counsel to the Purchasers

	 	 	 	 	 

	Exhibit S	 	—	 	Form of Supplement to Note Purchase Agreement








-v-









 








Eagle Materials Inc.

3811 Turtle Creek Blvd., Suite 1100

Dallas, Texas 75219



$40,000,000 5.25% Series 2005A Senior Notes, Tranche A,

due November 15, 2012



$80,000,000 5.38% Series 2005A Senior Notes, Tranche B,

due November 15, 2015




$80,000,000 5.48% Series 2005A Senior Notes, Tranche C,

due November 15, 2017




Dated as of

November 15, 2005




To the Purchasers listed in




     the attached Schedule A:



Ladies and Gentlemen:




     Eagle Materials Inc., a Delaware corporation (the “Company”), agrees with the
Purchasers listed in the attached Schedule A (the “Purchasers”) to this Note Purchase Agreement
(this “Agreement”) as follows:



Section 1. Authorization of Notes.




     Section 1.1. Description of Notes. The Company will authorize the issue and sale of the
following Senior Notes:



	 	 	 	 	 	 	 	 	 
	 	 	Series and/or	 	Aggregate Principal	 	 	 	 
	Issue	 	Tranche	 	Amount	 	Interest Rate	 	Maturity Date
	Senior Notes
	 	Series 2005A, Tranche A	 	$40,000,000	 	5.25%	 	November 15, 2012
	Senior Notes
	 	Series 2005A, Tranche B	 	$80,000,000	 	5.38%	 	November 15, 2015
	Senior Notes
	 	Series 2005A, Tranche C	 	$80,000,000	 	5.48%	 	November 15, 2017






Schedule A

(to Note Purchase Agreement)





 









 








     The Senior Notes described above are individually referred to respectively as the “Tranche A
Notes”, the “Tranche B Notes”, and the “Tranche C Notes”, and are collectively referred to as the
“Series 2005A Notes”. The Series 2005 A Notes, together with each Series of Additional Notes which
may from time to time be issued pursuant to the provisions of Section 2.2, are collectively
referred to as the “Notes” (such term shall also include any such notes issued in substitution
therefor pursuant to Section 13 of this Agreement). The Tranche A Notes, the Tranche B Notes, and
the Tranche C Notes shall be substantially in the form set out in Exhibit 1(a), Exhibit 1(b), and
Exhibit 1(c), respectively, with such changes therefrom, if any, as may be approved by the
Purchasers and the Company. Certain capitalized terms used in this Agreement are defined in
Schedule B; references to a “Schedule” or an “Exhibit” are, unless otherwise specified, to a
Schedule or an Exhibit attached to this Agreement.



     Section 1.2. Interest Rate. (a) The Series 2005A Notes shall bear interest (computed on the
basis of a 360-day year of twelve 30-day months) on the unpaid principal thereof from the date of
issuance at their respective stated rate of interest payable semi-annually in arrears on the 15th
day of May and November and at maturity commencing on May 15, 2006, until such principal sum shall
have become due and payable (whether at maturity, upon notice of prepayment or otherwise) and
interest (so computed) on any overdue principal, interest or Make-Whole Amount from the due date
thereof (whether by acceleration or otherwise) at the applicable Default Rate until paid.



Section 2. Sale and Purchase of Notes.




     Section 2.1. Series 2005A Notes. Subject to the terms and conditions of this Agreement, the
Company will issue and sell to each Purchaser and each Purchaser will purchase from the Company, at
the Closing provided for in Section 3, the Series 2005A Notes of the tranches and in the respective
principal amounts specified opposite such Purchaser’s name in Schedule A at the purchase price of
100% of the principal amount thereof. The obligations of each Purchaser hereunder are several and
not joint obligations and each Purchaser shall have no obligation and no liability to any Person
for the performance or nonperformance by any other Purchaser hereunder.



     Section 2.2. Additional Series of Notes. The Company may, from time to time, in its sole
discretion but subject to the terms hereof, issue and sell one or more additional Series of its
unsecured promissory notes under the provisions of this Agreement pursuant to a supplement (a
“Supplement”) substantially in the form of Exhibit S, provided that the aggregate principal amount
of Notes of all Series issued pursuant to all Supplements in accordance with the terms of this
Section 2.2 shall not exceed $500,000,000. Each additional Series of Notes (the “Additional
Notes”) issued pursuant to a Supplement shall be subject to the following terms and conditions:




     (i) each Series of Additional Notes, when so issued, shall be differentiated from all
previous Series by sequential yearly and alphabetical designation inscribed thereon;



 









 






     (ii) Additional Notes of the same Series may consist of more than one different and
separate tranches and may differ with respect to outstanding principal amounts, maturity
dates, interest rates and premiums, if any, and price and terms of redemption or payment
prior to maturity, but all such different and separate tranches of the same Series shall
vote as a single class and constitute one Series;




     (iii) each Series of Additional Notes shall be dated the date of issue, bear interest
at such rate or rates, mature on such date or dates, be subject to such mandatory and
optional prepayment on the dates and at the premiums, if any, have such additional or
different conditions precedent to closing, such representations and warranties and such
additional covenants as shall be specified in the Supplement under which such Additional
Notes are issued and upon execution of any such Supplement, this Agreement shall be amended
(a) to reflect such additional covenants without further action on the part of the holders
of the Notes outstanding under this Agreement, provided, that any such additional covenants
shall inure to the benefit of all holders of Notes so long as any Additional Notes issued
pursuant to such Supplement remain outstanding, and (b) to reflect such representations and
warranties as are contained in such Supplement for the benefit of the holders of such
Additional Notes in accordance with the provisions of Section 16;




     (iv) each Series of Additional Notes issued under this Agreement shall be in
substantially the form of Exhibit 1 to Exhibit S hereto with such variations, omissions and
insertions as are necessary or permitted hereunder;




     (v) the minimum principal amount of any Note issued under a Supplement shall be
$100,000, except as may be necessary to evidence the outstanding amount of any Note
originally issued in a denomination of $100,000 or more;




     (vi) all Additional Notes shall constitute Senior Debt of the Company and shall rank
pari passu with all other outstanding Notes; and




     (vii) no Additional Notes shall be issued hereunder if at the time of issuance thereof
and after giving effect to the application of the proceeds thereof, any Default or Event of
Default shall have occurred and be continuing.



     The obligations of the Additional Purchasers to purchase any Additional Notes shall be subject
to the following conditions precedent, in addition to the conditions specified in the Supplement
pursuant to which such Additional Notes may be issued:




     (a) Compliance Certificate. A duly authorized Senior Financial Officer shall execute
and deliver to each Additional Purchaser and each holder of Notes an Officer’s Certificate
dated the date of issue of such Series of Additional Notes stating that such officer has
reviewed the provisions of this Agreement (including any Supplements hereto)
and setting forth the information and computations (in sufficient detail) required in order
to establish whether after giving effect to the issuance of the Additional Notes and after
giving effect to the application of the proceeds thereof, the Company is in compliance



 









 






with
the requirements of Section 10.1 on such date (based upon the financial statements for the
most recent fiscal quarter ended prior to the date of such certificate).




     (b) Execution and Delivery of Supplement. The Company and each such Additional
Purchaser shall execute and deliver a Supplement substantially in the form of Exhibit S
hereto.




     (c) Representations of Additional Purchasers. Each Additional Purchaser shall have
confirmed in the Supplement that the representations set forth in Section 6 are true with
respect to such Additional Purchaser on and as of the date of issue of the Additional Notes.




     (d) Execution and Delivery of Guaranty Ratification. Provided a Guaranty Release shall
not have occurred, each Subsidiary Guarantor shall execute and deliver a Guaranty
Ratification in the form attached to the Subsidiary Guaranty.



     Section 2.3. Subsidiary Guaranty. (a) The payment by the Company of all amounts due with
respect to the Notes and the performance by the Company of its obligations under this Agreement
will be absolutely and unconditionally guaranteed by the Subsidiary Guarantors pursuant to the
Subsidiary Guaranty Agreement dated as of even date herewith, which shall be substantially in the
form of Exhibit 2.3 attached hereto, and otherwise in accordance with the provisions of Section 9.6
hereof (the “Subsidiary Guaranty”).



     (b) The holders of the Notes agree to discharge and release any Subsidiary Guarantor from the
Subsidiary Guaranty upon receipt of written notification of the Company, provided that (i) such
Subsidiary Guarantor has been released and discharged (or will be released and discharged
concurrently with the release of such Subsidiary Guarantor under the Subsidiary Guaranty) as an
obligor and guarantor under and in respect of the Bank Credit Agreement and the Company so
certifies to the holders of the Notes in a certificate of a Responsible Officer, (ii) at the time
of such release and discharge, the Company shall deliver a certificate of a Responsible Officer to
the holders of the Notes stating that no Default or Event of Default exists, and (iii) if any fee
or other form of consideration is given to any holder of Debt of the Company expressly for the
purpose of such release, holders of the Notes shall receive equivalent consideration (a “Guaranty
Release”).



Section 3. Closing.




     The sale and purchase of the Series 2005A Notes to be purchased by each Purchaser shall occur
at the offices of Chapman and Cutler LLP, 111 West Monroe Street, Chicago, Illinois 60603 at 10:00
a.m. Central time, at a closing (the “Closing”) on November 15, 2005 or on such other Business Day
thereafter on or prior to November 30, 2005 as may be agreed upon by the Company and the Purchasers
(the “Closing Date”). On the Closing Date, the Company will
deliver to each Purchaser the Series 2005A Notes to be purchased by such Purchaser in the form
of a single Series 2005A Note (or such greater number of Series 2005A Notes in denominations of at
least $100,000 as such Purchaser may request) dated the date of the Closing Date and registered in
such Purchaser’s name (or in the name of such Purchaser’s nominee), against



 









 




delivery by such
Purchaser to the Company or its order of immediately available funds in the amount of the purchase
price therefor by wire transfer of immediately available funds for the account of the Company to
Account Number
          , at Wells Fargo, Dallas, Texas 75283-2406, ABA Number           , in
the Account Name of “Eagle Materials Inc.” If, on the Closing Date, the Company shall fail to
tender such Series 2005A Notes to any Purchaser as provided above in this Section 3, or any of the
conditions specified in Section 4 shall not have been fulfilled to any Purchaser’s satisfaction,
such Purchaser shall, at such Purchaser’s election, be relieved of all further obligations under
this Agreement, without thereby waiving any rights such Purchaser may have by reason of such
failure or such nonfulfillment.




Section 4. Conditions to Closing.




     Each Purchaser’s obligation to purchase and pay for the Series 2005A Notes to be sold to such
Purchaser at the Closing is subject to the fulfillment to such Purchaser’s satisfaction, prior to
or at the Closing, of the following conditions applicable to the Closing Date:



     Section 4.1. Representations and Warranties.



     (a) Representations and Warranties of the Company. The representations and warranties of the
Company in this Agreement shall be correct when made and at the time of the Closing.



     (b) Representations and Warranties of the Subsidiary Guarantors. The representations and
warranties of the Subsidiary Guarantors in the Subsidiary Guaranty shall be correct when made and
at the time of the Closing.



     Section 4.2. Performance; No Default.  The Company and each Subsidiary Guarantor
shall have performed and complied with all agreements and conditions contained in this Agreement
and the Subsidiary Guaranty required to be performed or complied with by the Company and each such
Subsidiary Guarantor prior to or at the Closing, and after giving effect to the issue and sale of
the Series 2005A Notes (and the application of the proceeds thereof as contemplated by Section
5.14), no Default or Event of Default shall have occurred and be continuing. Neither the Company
nor any Subsidiary shall have entered into any transaction since the date of the Memorandum that
would have been prohibited by Section 10 hereof had such Sections applied since such date.



     Section 4.3. Compliance Certificates.



     (a) Officer’s Certificate of the Company. The Company shall have delivered to such Purchaser
an Officer’s Certificate, dated the Closing Date, certifying that the conditions specified in
Sections 4.1, 4.2 and 4.9 have been fulfilled.



     (b) Secretary’s Certificate of the Company. The Company shall have delivered to such
Purchaser a certificate, dated the Closing Date, certifying as to the resolutions attached thereto
and other corporate proceedings relating to the authorization, execution and delivery of the Series
2005A Notes and this Agreement.



 









 





     (c) Officer’s Certificate of the Subsidiary Guarantors. Each Subsidiary Guarantor shall have
delivered to such Purchaser an Officer’s Certificate, dated the Closing Date, certifying that the
conditions specified in Sections 4.1(b), 4.2 and 4.9 have been fulfilled.



     (d) Secretary’s Certificate of the Subsidiary Guarantors. Each Subsidiary Guarantor shall
have delivered to such Purchaser a certificate, dated the Closing Date, certifying as to the
resolutions attached thereto and other corporate proceedings relating to the authorization,
execution and delivery of the Subsidiary Guaranty.



     Section 4.4. Opinions of Counsel. Such Purchaser shall have received opinions in
form and substance satisfactory to such Purchaser, dated the Closing Date (a) from James H. Graass,
General Counsel of the Company, covering the matters set forth in Exhibit 4.4(a) and covering such
other matters incident to the transactions contemplated hereby as such Purchaser or its counsel may
reasonably request (and the Company hereby instructs its counsel to deliver such opinion to the
Purchasers), (b) from Baker Botts L.L.P., special counsel for the Company, covering the matters set
forth in Exhibit 4.4(b) and covering such other matters incident to the transactions contemplated
hereby as such Purchaser or its counsel may reasonably request (and the Company hereby instructs
its counsel to deliver such opinion to the Purchasers), and (c) from Chapman and Cutler LLP, the
Purchasers’ special counsel, in connection with such transactions, substantially in the form set
forth in Exhibit 4.4(c) and covering such other matters incident to such transactions as such
Purchaser may reasonably request.



     Section 4.5. Purchase Permitted By Applicable Law, Etc. On the date of the Closing
such Purchaser’s purchase of Series 2005A Notes shall (a) be permitted by the laws and regulations
of each jurisdiction to which such Purchaser is subject, without recourse to provisions (such as
section 1405(a)(8) of the New York Insurance Law) permitting limited investments by insurance
companies without restriction as to the character of the particular investment, (b) not violate any
applicable law or regulation (including, without limitation, Regulation T, U or X of the Board of
Governors of the Federal Reserve System) and (c) not subject such Purchaser to any tax, penalty or
liability under or pursuant to any applicable law or regulation, which law or regulation was not in
effect on the date hereof. If requested by such Purchaser, such Purchaser shall have received an
Officer’s Certificate certifying as to such matters of fact as such Purchaser may reasonably
specify to enable such Purchaser to determine whether such purchase is so permitted.



     Section 4.6. Sale of Other Notes.  Contemporaneously with the Closing the Company
shall sell to each other Purchaser and each other Purchaser shall purchase the Series 2005A Notes
to be purchased by it at the Closing as specified in Schedule A.



     Section 4.7. Payment of Special Counsel Fees. Without limiting the provisions of Section
15.1, the Company shall have paid on or before the Closing Date, the reasonable fees, reasonable
charges and reasonable disbursements of the Purchasers’ special counsel referred to in Section 4.4
to the extent reflected in a statement of such counsel rendered to the Company at least one
Business Day prior to the Closing Date.



 









 





     Section 4.8. Private Placement Number. A Private Placement Number issued by Standard
& Poor’s CUSIP Service Bureau (in cooperation with the Securities Valuation Office of the National
Association of Insurance Commissioners) shall have been obtained for each tranche of the Series
2005A Notes.



     Section 4.9. Changes in Corporate Structure.  Neither the Company nor any Subsidiary
Guarantor shall have changed its jurisdiction of organization or, except as reflected in Schedule
4.9, been a party to any merger or consolidation, or shall have succeeded to all or any substantial
part of the liabilities of any other entity, at any time following the date of the most recent
financial statements referred to in Schedule 5.5.



     Section 4.10. Subsidiary Guaranty. The Subsidiary Guaranty shall have been duly authorized,
executed and delivered by each Subsidiary Guarantor, shall constitute the legal, valid and binding
contract and agreement of each Subsidiary Guarantor and such Purchaser shall have received a true,
correct and complete copy thereof.



     Section 4.11. Funding Instructions. At least three Business Days prior to the date
of the Closing, each Purchaser shall have received written instructions signed by a Responsible
Officer on letterhead of the Company confirming the information specified in Section 3 including
(i) the name and address of the transferee bank, (ii) such transferee bank’s ABA number and (iii)
the account name and number into which the purchase price for the Series 2005A Notes is to be
deposited.



     Section 4.12. Proceedings and Documents. All corporate and other organizational
proceedings in connection with the transactions contemplated by this Agreement and all documents
and instruments incident to such transactions shall be satisfactory to such Purchaser and its
special counsel, and such Purchaser and its special counsel shall have received all such
counterpart originals or certified or other copies of such documents as such Purchaser or such
special counsel may reasonably request.



Section 5. Representations and Warranties of the Company.




        The Company represents and warrants to each Purchaser that:



     Section 5.1. Organization; Power and Authority. The Company is a corporation duly organized,
validly existing and in
good standing under the laws of its jurisdiction of incorporation, and is duly qualified as a
foreign corporation and is in good standing in each jurisdiction in which such qualification is
required by law, other than those jurisdictions as to which the failure to be so qualified or in
good standing would not, individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect. The Company has the corporate power and authority to own or hold under
lease the properties it purports to own or hold under lease, to transact the business it transacts
and proposes to transact, to execute and deliver this Agreement and the Series 2005A Notes and to
perform the provisions hereof and thereof.



 









 





     Section 5.2. Authorization, Etc. This Agreement and the Notes to be issued on the
Closing Date have been duly authorized by all necessary corporate action on the part of the
Company, and this Agreement constitutes, and upon execution and delivery thereof each such Note
will constitute, a legal, valid and binding obligation of the Company enforceable against the
Company in accordance with its terms, except as such enforceability may be limited by (i)
applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the
enforcement of creditors’ rights generally and (ii) general principles of equity (regardless of
whether such enforceability is considered in a proceeding in equity or at law).



     Section 5.3. Disclosure. The Company, through its agent, Banc of America Securities
LLC, has delivered to you and each Other Purchaser a copy of a Private Placement Memorandum, dated
September 2005 (the “Memorandum”), relating to the transactions contemplated hereby. The
Memorandum fairly describes, in all material respects, the general nature of the business and
principal properties of the Company and its Restricted Subsidiaries. This Agreement, the
Memorandum, the documents, certificates or other writings delivered to the Purchasers by or on
behalf of the Company in connection with the transactions contemplated hereby and the financial
statements listed in Schedule 5.5, in each case, delivered to the Purchasers prior to October 3,
2005 (this Agreement, the Memorandum and such documents, certificates or other writings and such
financial statements being referred to, collectively, as the “Disclosure Documents”), taken as a
whole, do not contain any untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein not misleading in light of the circumstances under which
they were made. Except as disclosed in the Disclosure Documents, since March 31, 2005, there has
been no change in the financial condition, operations, business or properties of the Company or any
of its Restricted Subsidiaries except changes that individually or in the aggregate would not
reasonably be expected to have a Material Adverse Effect. There is no fact known to the Company
that would reasonably be expected to have a Material Adverse Effect that has not been set forth
herein or in the Disclosure Documents.



     Section 5.4. Organization and Ownership of Shares of Subsidiaries; Affiliates. (a)
Schedule 5.4 contains (except as noted therein) complete and correct lists (i) of the Company’s
Restricted and Unrestricted Subsidiaries, showing, as to each Subsidiary, the correct name thereof,
the jurisdiction of its organization, and the percentage of shares of each class of its capital
stock or similar equity interests outstanding owned by the Company and each other Subsidiary, (ii)
of the Company’s Affiliates, other than Subsidiaries, and (iii) of the Company’s directors and
senior officers.



     (b) All of the outstanding shares of capital stock or similar equity interests of each
Subsidiary shown in Schedule 5.4 as being owned by the Company and its Subsidiaries have been
validly issued, are fully paid and nonassessable and are owned by the Company or another Subsidiary
free and clear of any Lien (except as otherwise disclosed in Schedule 5.4).



     (c) Each Subsidiary identified in Schedule 5.4 is a corporation or other legal entity duly
organized, validly existing and in good standing under the laws of its jurisdiction of
organization, and is duly qualified as a foreign corporation or other legal entity and is in good
standing in each jurisdiction in which such qualification is required by law, other than those
jurisdictions as to which the failure to be so qualified or in good standing would not,
individually or in the



 









 




aggregate, reasonably be expected to have a Material Adverse Effect. Each
such Subsidiary has the corporate or other power and authority to own or hold under lease the
properties it purports to own or hold under lease and to transact the business it transacts and
proposes to transact.




     (d) No Subsidiary is a party to, or otherwise subject to, any legal restriction or any
agreement (other than this Agreement, the agreements listed on Schedule 5.4 and customary
limitations imposed by corporate law statutes) restricting the ability of such Subsidiary to pay
dividends out of profits or make any other similar distributions of profits to the Company or any
of its Subsidiaries that owns outstanding shares of capital stock or similar equity interests of
such Subsidiary.



     Section 5.5. Financial Statements; Material Liabilities. The Company has delivered
to each Purchaser copies of the financial statements of the Company and its Subsidiaries listed on
Schedule 5.5. All of said financial statements (including in each case the related schedules and
notes) fairly present in all material respects the consolidated financial position of the Company
and its Subsidiaries as of the respective dates specified in such Schedule and the consolidated
results of their operations and cash flows for the respective periods so specified and have been
prepared in accordance with GAAP consistently applied throughout the periods involved except as set
forth in the notes thereto (subject, in the case of any interim financial statements, to normal
year-end adjustments). The Company and its Subsidiaries do not have any Material liabilities that
are not disclosed on such financial statements or otherwise disclosed in the Disclosure Documents.



     Section 5.6. Compliance with Laws, Other Instruments, Etc. The execution, delivery
and performance by the Company of this Agreement and the Series 2005A Notes will not (a)
contravene, result in any breach of, or constitute a default under, or result in the creation of
any Lien in respect of any property of the Company or any Subsidiary under, any indenture,
mortgage, deed of trust, loan, purchase or credit agreement, lease, corporate charter or by-laws,
or any other agreement or instrument to which the Company or any Subsidiary is bound or by which
the Company or any Subsidiary or any of their respective properties may be bound or affected, (b)
conflict with or result in a breach of any of the terms, conditions or provisions of any order,
judgment, decree, or ruling of any court, arbitrator or Governmental Authority applicable to the
Company or any Subsidiary, or (c) violate any provision of any statute or other rule or regulation
of any Governmental Authority applicable to the Company or any Subsidiary.



     Section 5.7. Governmental Authorizations, Etc. No consent, approval or authorization
of, or registration, filing or declaration with, any Governmental Authority is required in
connection with the execution, delivery or performance by the Company of this Agreement or the
Series 2005A Notes.



     Section 5.8. Litigation; Observance of Agreements, Statutes and Orders. (a) There
are no actions, suits, investigations or proceedings pending or, to the knowledge of the Company,
threatened against or affecting the Company or any Restricted Subsidiary or any property of the
Company or any Restricted Subsidiary in any court or before any arbitrator of any kind or before or
by any Governmental Authority that, individually or in the aggregate, would reasonably be expected
to have a Material Adverse Effect.



 









 





     (b) Neither the Company nor any Restricted Subsidiary is in default under any term of any
agreement or instrument to which it is a party or by which it is bound, or any order, judgment,
decree or ruling of any court, arbitrator or Governmental Authority or is in violation of any
applicable law, ordinance, rule or regulation (including without limitation Environmental Laws or
the USA Patriot Act) of any Governmental Authority, which default or violation, individually or in
the aggregate, would reasonably be expected to have a Material Adverse Effect.



     Section 5.9. Taxes. The Company and its Subsidiaries have filed all tax returns that
are required to have been filed in any jurisdiction, and have paid all taxes shown to be due and
payable on such returns and all other taxes and assessments levied upon them or their properties,
assets, income or franchises, to the extent such taxes and assessments have become due and payable
and before they have become delinquent, except for any taxes and assessments (a) the amount of
which is not individually or in the aggregate Material or (b) the amount, applicability or validity
of which is currently being contested in good faith by appropriate proceedings and with respect to
which the Company or a Subsidiary, as the case may be, has established adequate reserves in
accordance with GAAP. The Company knows of no basis for any other tax or assessment that would
reasonably be expected to have a Material Adverse Effect. The charges, accruals and reserves on
the books of the Company and its Subsidiaries in respect of federal, state or other taxes for all
fiscal periods are adequate. The federal income tax liabilities of the Company and its
Subsidiaries have been finally determined (whether by reason of completed audits or the statute of
limitations having run) for all fiscal years up to and including the fiscal year ended March 31,
2000.



     Section 5.10. Title to Property; Leases. The Company and its Restricted Subsidiaries
have good and sufficient title to their respective properties which the Company and its Restricted
Subsidiaries own or purport to own that individually or in the aggregate are Material, including
all such properties reflected in the most recent audited balance sheet referred to in Section 5.5
or purported to have been acquired by the Company or any Restricted Subsidiary after said date
(except as sold or otherwise disposed of in the ordinary course of business), in each case free and
clear of Liens prohibited by this Agreement. All leases that individually or in the aggregate are
Material are valid and subsisting and are in full force and effect in all material respects.



     Section 5.11. Licenses, Permits, Etc. Except as disclosed in Schedule 5.11,




     (a) the Company and its Restricted Subsidiaries own or possess all licenses, permits,
franchises, authorizations, patents, copyrights, proprietary software, service marks,
trademarks and trade names, or rights thereto, that individually or in the aggregate are
Material, without known conflict with the rights of others, except, in each case, as would
not reasonably be expected to result in a Material Adverse Effect;




     (b) to the best knowledge of the Company, no product of the Company or any of its
Restricted Subsidiaries infringes in any respect any license, permit, franchise,
authorization, patent, copyright, proprietary software, service mark, trademark, trade name
or other right owned by any other Person, except, in each case, as would not reasonably be
expected to result in a Material Adverse Effect; and



 









 






     (c) to the best knowledge of the Company, there is no violation by any Person of any
right of the Company or any of its Restricted Subsidiaries with respect to any patent,
copyright, proprietary software, service mark, trademark, trade name or other right owned or
used by the Company or any of its Restricted Subsidiaries, except, in each case, as would
not reasonably be expected to result in a Material Adverse Effect.



     Section 5.12. Compliance with ERISA. (a) The Company and each ERISA Affiliate have
operated and administered each Plan in compliance with all applicable laws except for such
instances of noncompliance as have not resulted in and would not reasonably be expected to result
in a Material Adverse Effect. Neither the Company nor any ERISA Affiliate has incurred any
liability pursuant to Title I or IV of ERISA or the penalty or excise tax provisions of the Code
relating to employee benefit plans (as defined in section 3 of ERISA), and no event, transaction or
condition has occurred or exists that would reasonably be expected to result in the incurrence of
any such liability by the Company or any ERISA Affiliate, or in the imposition of any Lien on any
of the rights, properties or assets of the Company or any ERISA Affiliate, in either case pursuant
to Title I or IV of ERISA or to such penalty or excise tax provisions or to section 401(a)(29) or
412 of the Code or section 4068 of ERISA, other than such liabilities or Liens as would not be
individually or in the aggregate Material.



     (b) The present value of the aggregate benefit liabilities under each of the Plans (other than
Multiemployer Plans), determined as of the end of such Plan’s most recently ended plan year on the
basis of the actuarial assumptions specified for funding purposes in such Plan’s most recent
actuarial valuation report, did not exceed the aggregate current value of the assets of such Plan
allocable to such benefit liabilities by more than $5,000,000 in the aggregate for all Plans. The
term “benefit liabilities” has the meaning specified in section 4001 of ERISA and the terms
“current value” and “present value” have the meaning specified in section 3 of ERISA.



     (c) The Company and its ERISA Affiliates have not incurred any withdrawal liabilities (and are
not subject to contingent withdrawal liabilities) under section 4201 or 4204 of ERISA in respect of
Multiemployer Plans that individually or in the aggregate are Material.



     (d) The expected post-retirement benefit obligation (determined as of the last day of the
Company’s most recently ended fiscal year in accordance with Financial Accounting Standards Board
Statement No. 106, without regard to liabilities attributable to continuation coverage mandated by
section 4980B of the Code) of the Company and its Subsidiaries is not Material.



     (e) The execution and delivery of this Agreement and the issuance and sale of the Series 2005A
Notes hereunder will not involve any transaction that is subject to the prohibitions of Section 406
of ERISA or in connection with which a tax would be imposed pursuant to Section 4975(c)(1)(A)-(D)
of the Code. The representation by the Company in the first sentence of this Section 5.12(e) is
made in reliance upon and subject to the accuracy of each Purchaser’s representation in Section 6.3
as to the sources of the funds to be used to pay the purchase price of the Series 2005A Notes to be
purchased by such Purchaser.



     Section 5.13. Private Offering by the Company. Neither the Company nor anyone acting
on the Company’s behalf has offered the Series 2005A Notes or any similar securities for sale to,



 









 




or solicited any offer to buy any of the same from, or otherwise approached or negotiated in
respect thereof with, any Person other than the Purchasers and not more than 2 other Institutional
Investors, each of which has been offered the Series 2005A Notes in connection with a private sale
for investment. Neither the Company nor anyone acting on its behalf has taken, or will take, any
action that would subject the issuance or sale of the Series 2005A Notes to the registration
requirements of Section 5 of the Securities Act or to the registration requirements of any
securities or blue sky laws of any applicable jurisdiction.




     Section 5.14. Use of Proceeds; Margin Regulations. The Company will apply the
proceeds of the sale of the Series 2005A Notes to refinance existing indebtedness and for general
corporate purposes of the Company. No part of the proceeds from the sale of the Series 2005A Notes
hereunder will be used, directly or indirectly, for the purpose of buying or carrying any margin
stock within the meaning of Regulation U of the Board of Governors of the Federal Reserve System
(12 CFR 221), or for the purpose of buying or carrying or trading in any securities under such
circumstances as to involve the Company in a violation of Regulation X of said Board (12 CFR 224)
or to involve any broker or dealer in a violation of Regulation T of said Board (12 CFR 220).
Margin stock does not constitute more than 5% of the value of the consolidated assets of the
Company and its Subsidiaries and the Company does not have any present intention that margin stock
will constitute more than 5% of the value of such assets. As used in this Section, the terms
“margin stock” and “purpose of buying or carrying” shall have the meanings assigned to them in said
Regulation U.



     Section 5.15. Existing Debt; Future Liens. (a) Except as described therein, Schedule 5.15
sets forth a complete and correct list of all outstanding Debt of the Company and its Restricted
Subsidiaries as of September 30, 2005, since which date there has been no Material change in the
amounts, interest rates, sinking funds, installment payments or maturities of the Debt of the
Company or its Restricted Subsidiaries. Neither the Company nor any Restricted Subsidiary is in
default and no waiver of default is currently in effect, in the payment of any principal or
interest on any Debt of the Company or such
Restricted Subsidiary, and no event or condition exists with respect to any Debt of the Company or
any Restricted Subsidiary, that would permit (or that with notice or the lapse of time, or both,
would permit) one or more Persons to cause such Debt to become due and payable before its stated
maturity or before its regularly scheduled dates of payment.



     (b) Except as disclosed in Schedule 5.15, neither the Company nor any Restricted Subsidiary
has agreed or consented to cause or permit in the future (upon the happening of a contingency or
otherwise) any of its property, whether now owned or hereafter acquired, to be subject to a Lien
not permitted by Section 10.3.



     (c) Neither the Company nor any Subsidiary is a party to, or otherwise subject to any
provision contained in, any instrument evidencing Debt of the Company or such Subsidiary, any
agreement relating thereto or any other agreement (including, but not limited to, its charter or
other organizational document) which limits the amount of, or otherwise imposes restrictions on the
incurring of, Debt of the Company, except as specifically indicated in Schedule 5.15.



 









 





     Section 5.16. Foreign Assets Control Regulations, Etc. (a) Neither the sale of the
Series 2005A Notes by the Company hereunder nor its use of the proceeds thereof will violate the
Trading with the Enemy Act, as amended, or any of the foreign assets control regulations of the
United States Treasury Department (31 CFR, Subtitle B, Chapter V, as amended) or any enabling
legislation or executive order relating thereto.



     (b) Neither the Company nor any Subsidiary is a Person described or designated in the
Specially Designated Nationals and Blocked Persons List of the Office of Foreign Assets Control or
in Section 1 of the Anti-Terrorism Order or, to the knowledge of the Company, engages in any
dealings or transactions with any such Person. The Company and its Subsidiaries are in compliance,
in all material respects, with the USA Patriot Act.



     (c) No part of the proceeds from the sale of the Series 2005A Notes hereunder will be used,
directly or indirectly, for any payments to any governmental official or employee, political party,
official of a political party, candidate for political office, or anyone else acting in an official
capacity, in order to obtain, retain or direct business or obtain any improper advantage, in
violation of the United States Foreign Corrupt Practices Act of 1977, as amended, assuming in all
cases that such Act applies to the Company.



     Section 5.17. Status under Certain Statutes. Neither the Company nor any Restricted
Subsidiary is an “investment company” registered or required to be registered under the Investment
Company Act of 1940, as amended, or is subject to regulation under the Public Utility Holding
Company Act of 1935, as amended, the ICC Termination Act of 1995, as amended, or the Federal Power
Act, as amended.



     Section 5.18. Environmental Matters. (a) Neither the Company nor any Restricted Subsidiary
has knowledge of any claim or has received any notice of any claim, and no proceeding has been
instituted raising any claim against the Company or any of its Restricted Subsidiaries or any of
their respective real properties now or
formerly owned, leased or operated by any of them, or other assets, alleging any damage to the
environment or violation of any Environmental Laws, except, in each case, such as would not
reasonably be expected to result in a Material Adverse Effect.



          (b) Neither the Company nor any Restricted Subsidiary has knowledge of any facts which would
give rise to any claim, public or private, of violation of Environmental Laws or damage to the
environment emanating from, occurring on or in any way related to real properties now or formerly
owned, leased or operated by any of them or to other assets or their use, except, in each case,
such as would not reasonably be expected to result in a Material Adverse Effect.



          (c) Neither the Company nor any of its Restricted Subsidiaries has stored any Hazardous
Materials on real properties now or formerly owned, leased or operated by any of them or has
disposed of any Hazardous Materials in each case in a manner contrary to any Environmental Laws in
each case in any manner that would reasonably be expected to result in a Material Adverse Effect.



 









 





          (d) All buildings on all real properties now owned, leased or operated by the Company or any
of its Restricted Subsidiaries are in compliance with applicable Environmental Laws, except where
failure to comply would not reasonably be expected to result in a Material Adverse Effect.



     Section 5.19. Notes Rank Pari Passu. The obligations of the Company under this Agreement and
the Notes rank pari passu in right of payment with all other senior unsecured Debt (actual or
contingent) of the Company, including, without limitation, all senior unsecured Debt of the Company
described in Schedule 5.15 hereto. The obligations of each Subsidiary Guarantor under the
Subsidiary Guaranty rank pari passu in right of payment with all other senior unsecured Debt
(actual or contingent) of such Subsidiary Guarantor, including, without limitation, all senior
unsecured Debt of such Subsidiary Guarantor described in Schedule 5.15 hereto.



Section 6. Representations of the Purchaser.




     Section 6.1. Purchase for Investment. Each Purchaser severally represents that it is
purchasing the Series 2005A Notes for its own account or for one or more separate accounts
maintained by it or for the account of one or more pension or trust funds and not with a view to
the distribution thereof, provided that the disposition of such Purchaser’s or such pension or
trust funds’ property shall at all times be within such Purchaser’s or such pension or trust funds’
control. Each Purchaser understands that the Series 2005A Notes have not been registered under the
Securities Act and may be resold only if registered pursuant to the provisions of the Securities
Act or if an exemption from registration is available, except under circumstances where neither
such registration nor such an exemption is required by law, and that the Company is not required to
register the Series 2005A Notes.



     Section 6.2. Accredited Investor. Each Purchaser represents that it is an “accredited
investor” (as defined in Rule 501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act acting for its own account (and not for the account of
others) or as a fiduciary or agent for others (which others are also “accredited investors”).
Each Purchaser further represents that such Purchaser has had the opportunity to ask questions of
the Company and received answers concerning the terms and conditions of the sale of the Series
2005A Notes.



     Section 6.3. Source of Funds. Each Purchaser severally represents that at least one of the
following statements is an accurate representation as to each source of funds (a “Source”) to be
used by such Purchaser to pay the purchase price of the Series 2005A Notes to be purchased by such
Purchaser hereunder:




     (a) the Source is an “insurance company general account” (as the term is defined in the
United States Department of Labor’s Prohibited Transaction Exemption (“PTE”) 95-60) in
respect of which the reserves and liabilities (as defined by the annual statement for life
insurance companies approved by the National Association of Insurance Commissioners (the
“NAIC Annual Statement”)) for the general account contract(s) held by or on behalf of any
employee benefit plan together with the amount of the reserves and liabilities for the
general account contract(s) held by or on behalf of any other employee



 









 






benefit plans
maintained by the same employer (or affiliate thereof as defined in PTE 95-60) or by the
same employee organization in the general account do not exceed 10% of the total reserves
and liabilities of the general account (exclusive of separate account liabilities) plus
surplus as set forth in the NAIC Annual Statement filed with such Purchaser’s state of
domicile; or




     (b) the Source is a separate account that is maintained solely in connection with such
Purchaser’s fixed contractual obligations under which the amounts payable, or credited, to
any employee benefit plan (or its related trust) that has any interest in such separate
account (or to any participant or beneficiary of such plan (including any annuitant)) are
not affected in any manner by the investment performance of the separate account; or




     (c) the Source is either (i) an insurance company pooled separate account, within the
meaning of PTE 90-1 or (ii) a bank collective investment fund, within the meaning of the PTE
91-38 and, except as disclosed by such Purchaser to the Company in writing pursuant to this
clause (c), no employee benefit plan or group of plans maintained by the same employer or
employee organization beneficially owns more than 10% of all assets allocated to such pooled
separate account or collective investment fund; or




     (d) the Source constitutes assets of an “investment fund” (within the meaning of Part V
of PTE 84-14 (the “QPAM Exemption”)) managed by a “qualified professional asset manager” or
“QPAM” (within the meaning of Part V of the QPAM Exemption), no employee benefit plan’s
assets that are included in such investment fund, when combined with the assets of all other
employee benefit plans established or maintained by the same employer or by an affiliate
(within the meaning of Section V(c)(1) of the QPAM Exemption) of such employer or by the
same employee organization and managed by such QPAM, exceed 20% of the total client assets
managed by such QPAM, the conditions of
Part I(c) and (g) of the QPAM Exemption are satisfied, neither the QPAM nor a person
controlling or controlled by the QPAM (applying the definition of “control” in Section V(e)
of the QPAM Exemption) owns a 5% or more interest in the Company and (i) the identity of
such QPAM and (ii) the names of all employee benefit plans whose assets are included in such
investment fund have been disclosed to the Company in writing pursuant to this clause (d);
or




     (e) the Source constitutes assets of a “plan(s)” (within the meaning of Section IV of
PTE 96-23 (the “INHAM Exemption”)) managed by an “in-house asset manager” or “INHAM” (within
the meaning of Part IV of the INHAM exemption), the conditions of Part I(a), (g) and (h) of
the INHAM Exemption are satisfied, neither the INHAM nor a person controlling or controlled
by the INHAM (applying the definition of “control” in Section IV(d) of the INHAM Exemption)
owns a 5% or more interest in the Company and (i) the identity of such INHAM and (ii) the
name(s) of the employee benefit plan(s) whose assets constitute the Source have been
disclosed to the Company in writing pursuant to this clause (e); or




     (f) the Source is a governmental plan; or



 









 






     (g) the Source is one or more employee benefit plans, or a separate account or trust
fund comprised of one or more employee benefit plans, each of which has been identified to
the Company in writing pursuant to this clause (g); or




     (h) the Source does not include assets of any employee benefit plan, other than a plan
exempt from the coverage of ERISA.


As used in this Section 6.3, the terms “employee benefit plan,” “governmental plan,” and “separate
account” shall have the respective meanings assigned to such terms in section 3 of ERISA.




Section 7. Information as to Company.




     Section 7.1. Financial and Business Information. The Company shall deliver to each holder of
Notes that is an Institutional Investor:




     (a) Quarterly Statements — within 60 days after the end of each quarterly fiscal period
in each fiscal year of the Company (other than the last quarterly fiscal period of each such
fiscal year),




     (i) a consolidated balance sheet of the Company and its Subsidiaries as at the
end of such quarter, and




     (ii) consolidated statements of income, changes in shareholders’ equity and
cash flows of the Company and its Subsidiaries, for such quarter and (in the
case of the second and third quarters) for the portion of the fiscal year ending
with such quarter,




setting forth in each case in comparative form the figures for the corresponding periods in
the previous fiscal year, all in reasonable detail, prepared in accordance with GAAP
applicable to quarterly financial statements generally, and certified by a Senior Financial
Officer as fairly presenting, in all material respects, the financial position of the
companies being reported on and their results of operations and cash flows, subject to
changes resulting from year-end adjustments, provided that filing with the Securities and
Exchange Commission within the time period specified above the Company’s Quarterly Report on
Form 10-Q prepared in compliance with the requirements therefor shall be deemed to satisfy
the requirements of this Section 7.1(a) and, provided, further, that the Company shall be
deemed to have made such delivery of such Form 10-Q if it shall have timely made such Form
10 Q available on “EDGAR” and on its home page on the worldwide web (at the date of this
Agreement located at: http//www.eaglematerials.com) and shall have given each Purchaser
prior notice of such availability on EDGAR and on its home page in connection with each
delivery (such availability and notice thereof being referred to as “Electronic Delivery”);




     (b) Annual Statements — within 105 days after the end of each fiscal year of the
Company,



 









 






     (i) a consolidated balance sheet of the Company and its Subsidiaries, as at the
end of such year, and




     (ii) consolidated statements of income, changes in shareholders’ equity and
cash flows of the Company and its Subsidiaries, for such year,




setting forth in each case in comparative form the figures for the previous fiscal year, all
in reasonable detail, prepared in accordance with GAAP, and accompanied by an opinion
thereon of independent certified public accountants of recognized national standing, which
opinion shall state that such financial statements present fairly, in all material respects,
the financial position of the companies being reported upon and their results of operations
and cash flows and have been prepared in conformity with GAAP, and that the examination of
such accountants in connection with such financial statements has been made in accordance
with generally accepted auditing standards, and that such audit provides a reasonable basis
for such opinion in the circumstances, provided that filing with the Securities and Exchange
Commission within the time period specified above of the Company’s Annual Report on Form
10-K for such fiscal year (together with the Company’s annual report to shareholders, if
any, prepared pursuant to Rule 14a-3 under the Exchange Act) prepared in accordance with the
requirements therefor shall be deemed to satisfy the requirements of this Section 7.1(b),
provided, further, that the Company shall be deemed to have made such delivery of such Form
10-K if it shall have timely made Electronic Delivery thereof;




     (c) SEC and Other Reports — except for filings referred to in Section 7.1(a) and (b)
above, promptly upon their becoming available and, to the extent applicable, one copy of (i)
each financial statement, report, notice or proxy statement sent by the Company or any
Subsidiary to public securities holders generally, and (ii) each regular or periodic report,
each registration statement (without exhibits except as expressly requested by such holder),
and each prospectus and all amendments thereto filed by the Company or any Subsidiary with
the Securities and Exchange Commission and of all press releases and other statements made
available generally by the Company or any Subsidiary to the public concerning developments
that are Material; provided, that the Company shall be deemed to have made such delivery of
any such information if it shall have timely made Electronic Delivery thereof;




     (d) Notice of Default or Event of Default — promptly, and in any event within five
Business Days after a Responsible Officer becomes aware of the existence of any Default or
Event of Default or that any Person has given any notice or taken any action with respect to
a claimed default hereunder or that any Person has given any notice or taken any action with
respect to a claimed default of the type referred to in Section 11(f), a written notice
specifying the nature and period of existence thereof and what action the Company is taking
or proposes to take with respect thereto;




     (e) ERISA Matters — promptly, and in any event within five Business Days after a
Responsible Officer becomes aware of any of the following, a written notice



 









 






setting forth
the nature thereof and the action, if any, that the Company or an ERISA Affiliate proposes
to take with respect thereto:




     (i) with respect to any Plan, any reportable event, as defined in Section 4043(c) of ERISA and the regulations thereunder, for which notice thereof
has not been waived pursuant to such regulations as in effect on the date thereof;
or




     (ii) the taking by the PBGC of steps to institute, or the threatening by the
PBGC of the institution of, proceedings under Section 4042 of ERISA for the
termination of, or the appointment of a trustee to administer, any Plan, or the
receipt by the Company or any ERISA Affiliate of a notice from a Multiemployer Plan
that such action has been taken by the PBGC with respect to such Multiemployer Plan;
or




     (iii) any event, transaction or condition that would result in the incurrence
of any liability by the Company or any ERISA Affiliate pursuant to Title I or IV of
ERISA or the imposition of a penalty or excise tax under the provisions of the Code
relating to employee benefit plans, or the imposition of any Lien on any of the
rights, properties or assets of the Company or any ERISA Affiliate pursuant to Title
I or IV of ERISA or such penalty or excise tax provisions, if such liability or
Lien, taken together with any other such liabilities or Liens then existing, would
reasonably be expected to have a Material Adverse Effect;




     (f) Notices from Governmental Authority — promptly, and in any event within 30 days of
receipt thereof, copies of any notice to the Company or any Subsidiary from any federal or
state Governmental Authority relating to any order, ruling, statute or other law or
regulation that would reasonably be expected to have a Material Adverse Effect;




     (g) Supplements — promptly and in any event within 10 Business Days after the
execution and delivery of any Supplement, a copy thereof; and




     (h) Requested Information — with reasonable promptness, such other data and information
relating to the business, operations, affairs, financial condition, assets or properties of
the Company or any of its Subsidiaries or relating to the ability of the Company to perform
its obligations hereunder and under the Notes as from time to time may be reasonably
requested by any such holder of Notes.



     Notwithstanding the foregoing, in the event that one or more Unrestricted Subsidiaries shall
either (i) own more than 10% of the total consolidated assets of the Company and its Subsidiaries,
or (ii) account for more than 10% of the consolidated gross revenues of the Company and its
Subsidiaries, determined in each case in accordance with GAAP, then, within the respective periods
provided in Section 7.1(a) and (b) above, the Company shall deliver to each holder of Notes that is
an Institutional Investor, unaudited financial statements of the



 









 




character and for the dates and
periods as in said Sections 7.1(a) and (b) covering such group of Unrestricted Subsidiaries (on a
consolidated basis), together with a consolidating statement reflecting eliminations or adjustments
required to reconcile the financial statements of such group of Unrestricted Subsidiaries to the
financial statements delivered pursuant to Sections 7.1(a) and (b).




     Section 7.2. Officer’s Certificate. Each set of financial statements delivered to a holder of
Notes pursuant to Section 7.1(a) or Section 7.1(b) hereof shall be accompanied by a certificate of
a Senior Financial Officer setting forth (which, in the case of Electronic Delivery of any such
financial statements, shall be by separate concurrent delivery of such certificate to each holder
of Notes):




     (a) Covenant Compliance — the information required in order to establish whether the
Company was in compliance with the requirements of Section 10.1 through Section 10.5 hereof,
inclusive, during the quarterly or annual period covered by the statements then being
furnished (including with respect to each such Section, where applicable, the calculations
of the maximum or minimum amount, ratio or percentage, as the case may be, permissible under
the terms of such Sections, and the calculation of the amount, ratio or percentage then in
existence); and




     (b) Event of Default — a statement that such officer has reviewed the relevant terms
hereof and such review shall not have disclosed the existence during the quarterly or annual
period covered by the statements then being furnished of any condition or event that
constitutes a Default or an Event of Default or, if any such condition or event existed or
exists, specifying the nature and period of existence thereof and what action the Company
shall have taken or proposes to take with respect thereto.



     Section 7.3. Visitation. The Company shall permit the representatives of each holder of Notes
that is an Institutional Investor:




     (a) No Default — if no Default or Event of Default then exists, at the expense of such
holder and upon reasonable prior notice to the Company, to visit the principal executive
office of the Company, to discuss the affairs, finances and accounts of the Company and its
Subsidiaries with the Company’s officers, and (with the consent of the Company, which
consent will not be unreasonably withheld) its independent public accountants, and (with the
consent of the Company, which consent will not be unreasonably withheld) to visit the other
offices and properties of the Company and each Restricted Subsidiary, all at such reasonable
times and as often as may be reasonably requested in writing; and




     (b) Default — if a Default or Event of Default then exists, at the expense of the
Company, to visit and inspect any of the offices or properties of the Company or any
Restricted Subsidiary, to examine all their respective books of account, records, reports
and other papers, to make copies and extracts therefrom, and to discuss their respective
affairs, finances and accounts with their respective officers and independent public
accountants (and by this provision the Company authorizes said accountants to discuss




 









 







the affairs, finances and accounts of the Company and its Subsidiaries), all at such times and
as often as may be requested.



Section 8. Payment of the Notes.




     Section 8.1. Required Prepayments. (a) The entire unpaid principal amount of the Tranche A
Notes shall become due and payable on November 15, 2012.



     (b) The entire unpaid principal amount of the Tranche B Notes shall become due and payable on
November 15, 2015.



     (c) The entire unpaid principal amount of the Tranche C Notes shall become due and payable on
November 15, 2017.



     Section 8.2. Optional Prepayments with Make-Whole Amount. The Company may, at its option,
upon notice as provided below, prepay at any time all, or from time to time any part of, the Notes
of any Series in an amount not less than 10% of the original aggregate principal amount of the
Notes of such Series to be prepaid, in the case of a partial prepayment (or such lesser amount as
shall be required to effect a partial prepayment resulting from an offer of prepayment pursuant to
Section 10.4), at 100% of the principal amount so prepaid, together with interest accrued thereon
to the date of such prepayment, plus the Make-Whole Amount determined for the prepayment date with
respect to such principal amount of each Note then outstanding of the applicable Series to be
prepaid. The Company will give each holder of Notes written notice of each optional prepayment
under this Section 8.2 not less than 30 days and not more than 60 days prior to the date fixed for
such prepayment. Each such notice shall specify such date, the aggregate principal




 amount of the Notes of the applicable Series to be prepaid on such date, the principal amount of
each Note held by such holder to be prepaid (determined in accordance with Section 8.3), and the
interest to be paid on the prepayment date with respect to such principal amount being prepaid, and
shall be accompanied by a certificate of a Senior Financial Officer as to the estimated respective
Make-Whole Amount due in connection with such prepayment (calculated as if the date of such notice
were the date of the prepayment), setting forth the details of such computation. Two Business Days
prior to such prepayment, the Company shall deliver to each holder of Notes of the Series to be
prepaid a certificate of a Senior Financial Officer specifying the calculation of each such
Make-Whole Amount as of the specified prepayment date.



     Section 8.3. Allocation of Partial Prepayments. In the case of each partial prepayment of the
Notes pursuant to the provisions of Section 8.2, the principal amount of the Notes of the Series to
be prepaid shall be allocated among all of the Notes of such Series at the time outstanding in
proportion, as nearly as practicable, to the respective unpaid principal amounts thereof. All
regularly scheduled partial prepayments made with respect to any Series of Additional Notes
pursuant to any Supplement shall be allocated as provided therein.



     Section 8.4. Maturity; Surrender, Etc. In the case of each prepayment of Notes pursuant to
this Section 8, the principal amount of each Note to be prepaid shall mature and become due and
payable on the date fixed for such prepayment, together with interest on such principal




 









 





amount
accrued to such date and the applicable Make-Whole Amount. From and after such date, unless the
Company shall fail to pay such principal amount when so due and payable, together with the interest
and Make-Whole Amount as aforesaid, interest on such principal amount shall cease to accrue. Any
Note paid or prepaid in full shall be surrendered to the Company and cancelled and shall not be
reissued, and no Note shall be issued in lieu of any prepaid principal amount of any Note.



     Section 8.5. Purchase of Notes. The Company will not and will not permit any Affiliate to
purchase, redeem, prepay or otherwise acquire, directly or indirectly, any of the outstanding Notes
of any Series except (a) upon the payment or prepayment of all of the Notes of such Series in
accordance with the terms of this Agreement (including any Supplement hereto) and the Notes of such
Series or (b) pursuant to a written offer to purchase any outstanding Notes of such Series made by
the Company or an Affiliate pro rata to the holders of the Notes of such Series upon the same terms
and conditions (except that if such Series has more than one separate tranche, such written offer
shall be allocated among all of the separate tranches of such Series at the time outstanding in
proportion, as nearly as practicable, to the respective unpaid principal amounts thereof but such
written offer may otherwise differ among such separate tranches and such written offer shall be
made pro rata to the holders of the same tranches of such Series upon the same terms and
conditions). The Company will promptly cancel all Notes acquired by it or any Affiliate pursuant
to any payment, prepayment or purchase of Notes pursuant to any provision of this Agreement
(including any Supplement hereto) and no Notes may be issued in substitution or exchange for any
such Notes.



     Section 8.6. Make-Whole Amount for the Series 2005A Notes. The term “Make-Whole Amount” means
with respect to any Series 2005A Note an amount equal to the excess, if any, of the Discounted
Value of the Remaining Scheduled Payments with respect to the Called Principal of such Series 2005A
Note of the applicable tranche, minus the amount of such Called Principal, provided that the
Make-Whole Amount may in no event be less than zero. For the purposes of determining the
Make-Whole Amount, the following terms have the following meanings with respect to the Called
Principal of such Series 2005A Note:




     “Called Principal” means, the principal of the Series 2005A Note of the applicable
tranche that is to be prepaid pursuant to Section 8.2 or has become or is declared to be
immediately due and payable pursuant to Section 12.1, as the context requires.




     “Discounted Value” means, the amount obtained by discounting all Remaining Scheduled
Payments from their respective scheduled due dates to the Settlement Date with respect to
such Called Principal, in accordance with accepted financial practice and at a discount
factor (applied on the same periodic basis as that on which interest on such Note is
payable) equal to the Reinvestment Yield.




     “Reinvestment Yield” means, 0.50% plus the yield to maturity calculated by using (i)
the yields reported, as of 10:00 A.M. (New York City time) on the second Business Day
preceding the Settlement Date on screen “PX-1” on the Bloomberg Financial Market Service (or
such other information service as may replace Bloomberg) for actively traded



 









 







U.S. Treasury
securities having a maturity equal to the Remaining Average Life of such Called Principal as
of such Settlement Date, or (ii) if such yields are not reported as of such time or the
yields reported as of such time are not ascertainable (including by way of interpolation),
the Treasury Constant Maturity Series Yields reported, for the latest day for which such
yields have been so reported as of the second Business Day preceding the Settlement Date, in
Federal Reserve Statistical Release H.15 (519) (or any comparable successor publication) for
actively traded U.S. Treasury securities having a constant maturity equal to the Remaining
Average Life of such Called Principal as of such Settlement Date. In either case, the yield
will be determined, if necessary, by (a) converting U.S. Treasury bill quotations to
bond-equivalent yields in accordance with accepted financial practice and (b) interpolating
linearly on a straight line basis between (1) the actively traded U.S. Treasury security
with the maturity closest to and greater than the Remaining Average Life and (2) the
actively traded U.S. Treasury security with the maturity closest to and less than the
Remaining Average Life.




     “Remaining Average Life” means, the number of years (calculated to the nearest
one-twelfth year) obtained by dividing (i) such Called Principal into (ii) the sum of the
products obtained by multiplying (a) the principal component of each Remaining Scheduled
Payment by (b) the number of years (calculated to the nearest one-twelfth year) that will
elapse between the Settlement Date and the scheduled due date of such Remaining Scheduled
Payment.




     “Remaining Scheduled Payments” means, all payments of such Called Principal and
interest thereon that would be due after the Settlement Date if no payment of such
Called Principal were made prior to its scheduled due date, provided that if such
Settlement Date is not a date on which interest payments are due to be made under the terms
of such Note, then the amount of the next succeeding scheduled interest payment will be
reduced by the amount of interest accrued to such Settlement Date and required to be paid on
such Settlement Date pursuant to Section 8.2 or 12.1.




     “Settlement Date” means, the date on which such Called Principal is to be prepaid
pursuant to Section 8.2 or has become or is declared to be immediately due and payable
pursuant to Section 12.1, as the context requires.



Section 9. Affirmative Covenants.




     The Company covenants that so long as any of the Notes are outstanding:



     Section 9.1. Compliance with Law. Without limiting Section 10.7, the Company will, and will
cause each of its Subsidiaries to, comply with all laws, ordinances or governmental rules or
regulations to which each of them is subject, including, without limitation, ERISA, the USA Patriot
Act and Environmental Laws, and will obtain and maintain in effect all licenses, certificates,
permits, franchises and other governmental authorizations necessary to the ownership of their
respective properties or to the conduct of their respective businesses, in each case to the extent
necessary to ensure that non-compliance with such laws, ordinances or governmental rules or
regulations or failures to obtain or maintain in effect such licenses,



 









 







certificates, permits, franchises and other governmental authorizations would not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect.



     Section 9.2. Insurance. The Company will, and will cause each of its Restricted Subsidiaries
to, maintain, with financially sound and reputable insurers, insurance with respect to their
respective properties and businesses against such casualties and contingencies, of such types, on
such terms and in such amounts (including deductibles, co-insurance and self-insurance, if adequate
reserves are maintained with respect thereto) as is customary in the case of entities of
established reputations engaged in the same or a similar business and similarly situated except for
any non-maintenance that would not reasonably be expected to have a Material Adverse Effect.



     Section 9.3. Maintenance of Properties. The Company will, and will cause each of its
Restricted Subsidiaries to, maintain and keep, or cause to be maintained and kept, their respective
properties in good repair, working order and condition (other than ordinary wear and tear), so that
the business carried on in connection therewith may be properly conducted at all times, provided
that this Section shall not prevent the Company or any Restricted Subsidiary from discontinuing the
operation and the maintenance of any of its properties if such discontinuance is desirable in the
conduct of its business and the Company has concluded that such discontinuance would not,
individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.


     Section 9.4. Payment of Taxes and Claims. The Company will, and will cause each of its
Subsidiaries to, file all tax returns required to be filed in any jurisdiction and to pay and
discharge all taxes shown to be due and payable on such returns and all other taxes, assessments,
governmental charges, or levies imposed on them or any of their properties, assets, income or
franchises, to the extent such taxes and assessments have become due and payable and before they
have become delinquent and all claims for which sums have become due and payable that have or might
become a Lien on properties or assets of the Company or any Subsidiary not permitted by Section
10.3, provided that neither the Company nor any Subsidiary need pay any such tax or assessment or
claims if (i) the amount, applicability or validity thereof is contested by the Company or such
Subsidiary on a timely basis in good faith and in appropriate proceedings, and the Company or a
Subsidiary has established adequate reserves therefor in accordance with GAAP on the books of the
Company or such Subsidiary or (ii) the non-filing or nonpayment, as the case may be, of all such
taxes and assessments in the aggregate would not reasonably be expected to have a Material Adverse
Effect.



     Section 9.5. Corporate Existence, Etc. Subject to Sections 10.4 and 10.5, the Company will at
all times preserve and keep in full force and effect its corporate existence, and will at all times
preserve and keep in full force and effect the corporate existence of each of its Restricted
Subsidiaries (unless merged into the Company or a Restricted Subsidiary) and all rights and
franchises of the Company and its Restricted Subsidiaries unless, in the good faith judgment of the
Company, the termination of or failure to preserve and keep in full force and effect such corporate
existence, right or franchise would not, individually or in the aggregate, to have a Material
Adverse Effect.



 









 






     Section 9.6. Designation of Subsidiaries. The Company may from time to time cause any
Subsidiary (other than a Subsidiary Guarantor) to be designated as an Unrestricted Subsidiary or
any Unrestricted Subsidiary to be designated a Restricted Subsidiary; provided, however, that at
the time of such designation and immediately after giving effect thereto, (a) no Default or Event
of Default would exist under the terms of this Agreement, and (b) the Company and its Restricted
Subsidiaries would be in compliance with all of the covenants set forth in this Section 9 and
Section 10 if tested on the date of such action and provided, further, that once a Subsidiary has
been designated an Unrestricted Subsidiary, it shall not thereafter be redesignated as a Restricted
Subsidiary on more than one occasion and once a Subsidiary has been designated a Restricted
Subsidiary, it shall not thereafter be redesignated as an Unrestricted Subsidiary on more than one
occasion. Within ten (10) days following any designation described above, the Company will deliver
to each holder of Notes a notice of such designation accompanied by a certificate signed by a
Senior Financial Officer of the Company certifying compliance with all requirements of this Section
9.6 and setting forth all information required in order to establish such compliance.



     Section 9.7. Notes to Rank Pari Passu. The Notes and all other obligations under this
Agreement of the Company are and at all times shall remain direct and unsecured obligations of the
Company ranking pari passu as against the assets of the Company with all other Notes from time to
time issued and outstanding hereunder without any preference among themselves and pari passu with
the Debt outstanding
under the Bank Credit Agreement and all other present and future unsecured Debt (actual or
contingent) of the Company which is not expressed to be subordinate or junior in rank to any other
unsecured Debt of the Company. All obligations under the Subsidiary Guaranty of each Subsidiary
Guarantor in respect of the Notes, and all other obligations of such Subsidiary Guarantor under the
Subsidiary Guaranty, are and at all times shall remain direct and unsecured obligations of such
Subsidiary Guarantor ranking pari passu as against the assets of such Subsidiary Guarantor with all
obligations of such Subsidiary Guarantor under the Subsidiary Guaranty in respect of all other
Notes from time to time issued and outstanding hereunder and guarantied pursuant to the Subsidiary
Guaranty without any preference among themselves and pari passu with such Subsidiary Guarantor’s
Guaranty in respect of the Debt outstanding under the Bank Credit Agreement and all other present
and future unsecured Debt (actual or contingent) of such Subsidiary Guarantor which is not
expressed to be subordinate or junior in rank to any other unsecured Debt of such Subsidiary
Guarantor.



     Section 9.8. Additional Subsidiary Guarantors. The Company will cause any Subsidiary which is
required by the terms of the Bank Credit Agreement to become a party to, or otherwise guarantee,
Debt in respect of the Bank Credit Agreement, to enter into the Subsidiary Guaranty and deliver to
each of the holders of the Notes (concurrently with the incurrence of any such obligation pursuant
to the Bank Credit Agreement) the following items:




     (a) a joinder agreement in respect of the Subsidiary Guaranty;




     (b) a certificate signed by an authorized Responsible Officer of the Company making
representations and warranties to the effect of those contained in Sections 5.4, 5.6 and
5.7, with respect to such Subsidiary and the Subsidiary Guaranty, as applicable; and



 









 






     (c) an opinion of counsel (who may be in-house counsel for the Company) addressed to
each of the holders of the Notes and reasonably satisfactory to the Required Holders, to the
effect that the Subsidiary Guaranty by such Person has been duly authorized, executed and
delivered and that the Subsidiary Guaranty constitutes the legal, valid and binding
obligation of such Person enforceable in accordance with its terms, except as an enforcement
of such terms may be limited by bankruptcy, insolvency, fraudulent conveyance and similar
laws affecting the enforcement of creditors’ rights generally and by general equitable
principles.



     Section 9.9. Books and Records. The Company will, and will cause each of its Restricted
Subsidiaries to, maintain proper books of record and account in conformity with GAAP and all
applicable requirements of any Governmental Authority having legal or regulatory jurisdiction over
the Company or such Restricted Subsidiary, as the case may be.



Section 10. Negative Covenants.



     The Company covenants that so long as any of the Notes are outstanding:



     Section 10.1. Consolidated Debt to Consolidated EBITDA. The Company will not at any time
permit the ratio of Consolidated Debt to Consolidated EBITDA (Consolidated EBITDA to be calculated
as at the end of each fiscal quarter for the four consecutive fiscal quarters then ended) to exceed
3.50 to 1.00.



     Section 10.2. Priority Debt. The Company will not at any time permit the aggregate amount of
all Priority Debt to exceed 20% of Consolidated Net Worth, determined as of the end of the then
most recently ended fiscal quarter of the Company.



     Section 10.3. Limitation on Liens. The Company will not, and will not permit any of its
Restricted Subsidiaries to, directly or indirectly create, incur, assume or permit to exist (upon
the happening of a contingency or otherwise) any Lien on or with respect to any property or asset
(including, without limitation, any document or instrument in respect of goods or accounts
receivable) of the Company or any such Restricted Subsidiary, whether now owned or held or
hereafter acquired, or any income or profits therefrom, or assign or otherwise convey any right to
receive income or profits (unless it makes, or causes to be made, effective provision whereby the
Notes will be equally and ratably secured with any and all other obligations thereby secured, such
security to be pursuant to an agreement reasonably satisfactory to the Required Holders and, in any
such case, the Notes shall have the benefit, to the fullest extent that, and with such priority as,
the holders of the Notes may be entitled under applicable law, of an equitable Lien on such
property), except:




     (a) Liens for taxes, assessments or other governmental charges that are not yet due and
payable or the payment of which is not at the time required by Section 9.4;




     (b) any attachment or judgment Lien, unless the judgment it secures shall not, within
60 days after the entry thereof, have been satisfied, discharged or execution thereof



 









 







stayed pending appeal, or shall not have been discharged within 60 days after the expiration of any
such stay;




     (c) Liens incidental to the conduct of business or the ownership of properties and
assets (including landlords’, carriers’, warehousemen’s, mechanics’, materialmen’s and other
similar Liens for sums not yet due and payable), Liens to secure the performance of bids,
tenders, leases, or trade contracts, or to secure statutory obligations (including
obligations under workers compensation, unemployment insurance and other social security
legislation), surety or appeal bonds or other Liens incurred in the ordinary course of
business and not in connection with the borrowing of money, Liens arising from UCC financing
statements filed for notice purposes in respect of operating leases and Liens in favor of
depositary banks or securities intermediaries incurred in the ordinary course of business
and not in connection with the incurrence of Debt;




     (d) leases or subleases granted to others, easements, rights-of-way, restrictions and
other similar charges or encumbrances, in each case incidental to the ownership of property
or assets or the ordinary conduct of the business of the Company or any of its
Restricted Subsidiaries, on Liens incidental to minor survey exceptions, zoning restrictions
and the like, provided that such Liens do not, in the aggregate, materially detract from the
value of such property;




     (e) Liens securing Debt of a Restricted Subsidiary to the Company or to a Restricted
Subsidiary;




     (f) Liens existing as of the Closing Date and reflected in Schedule 10.3;




     (g) Liens incurred after the Closing Date given to secure the payment of the purchase
price incurred in connection with the acquisition, construction or improvement of property
(other than accounts receivable or inventory) useful and intended to be used in carrying on
the business of the Company or a Restricted Subsidiary, including Liens existing on such
property at the time of acquisition or construction thereof or Liens incurred within 365
days of such acquisition or completion of such construction or improvement, provided that
(i) the Lien shall attach solely to the property acquired, purchased, constructed or
improved; (ii) at the time of acquisition, construction or improvement of such property (or,
in the case of any Lien incurred within 365 days of such acquisition or completion of such
construction or improvement, at the time of the incurrence of the Debt secured by such
Lien), the aggregate amount remaining unpaid on all Debt secured by Liens on such property,
whether or not assumed by the Company or a Restricted Subsidiary, shall not exceed the
lesser of (y) the cost of such acquisition, construction or improvement or (z) the Fair
Market Value of such property (as determined in good faith by one or more officers of the
Company to whom authority to enter into the transaction has been delegated by the board of
directors of the Company); and (iii) at the time of such incurrence and after giving effect
thereto, no Default or Event of Default would exist;



 









 






     (h) any Lien existing on property of a Person immediately prior to its being
consolidated with or merged into the Company or a Restricted Subsidiary after the Closing
Date or its becoming a Restricted Subsidiary after the Closing Date (other than after being
designated a Restricted Subsidiary pursuant to Section 9.6 hereof), or any Lien existing on
any property acquired after the Closing Date by the Company or any Restricted Subsidiary at
the time such property is so acquired (whether or not the Debt secured thereby shall have
been assumed), provided that (i) no such Lien shall have been created or assumed in
contemplation of such consolidation or merger or such Person’s becoming a Restricted
Subsidiary or such acquisition of property, (ii) each such Lien shall extend solely to the
item or items of property so acquired and, if required by the terms of the instrument
originally creating such Lien, other property which is an improvement to or is acquired for
specific use in connection with such acquired property, and (iii) at the time of such
incurrence and after giving effect thereto, no Default or Event of Default would exist;




     (i) any extensions, renewals or replacements of any Lien permitted by the preceding
subparagraphs (e), (f), (g) and (h) of this Section 10.3, provided that (i) no additional
property shall be encumbered by such Liens, (ii) the unpaid principal amount of
the Debt or other obligations secured thereby shall not be increased on or after the date of
any extension, renewal or replacement, and (iii) at such time and immediately after giving
effect thereto, no Default or Event of Default shall have occurred and be continuing;




     (j) Liens granted on accounts receivable and all Related Rights conveyed in connection
with Receivables Securitization Financings; and




     (k) Liens securing Priority Debt of the Company or any Restricted Subsidiary, provided
that the aggregate principal amount of any such Priority Debt shall be permitted by Section
10.2.



     Section 10.4. Sales of Assetss. Except as permitted by Section 10.5, the Company will not,
and will not permit any Restricted Subsidiary to, sell, lease or otherwise dispose of any
substantial part (as defined below) of the assets of the Company and its Restricted Subsidiaries;
provided, however, that the Company or any Restricted Subsidiary may sell, lease or otherwise
dispose of assets constituting a substantial part of the assets of the Company and its Restricted
Subsidiaries if such assets are sold in an arms length transaction and, at such time and
after giving effect thereto, no Default or Event of Default shall have occurred and be continuing
and an amount equal to the net proceeds received from such sale, lease or other disposition (but
only with respect to that portion of such assets that exceeds the definition of “substantial part”
set forth below) shall be used within 365 days of such sale, lease or disposition, in any
combination:




     (1) for working capital purposes (with respect to any Receivables Securitization
Financing), or to acquire assets used or useful in carrying on the business of the Company
and its Restricted Subsidiaries and having a value at least equal to the value of such
assets sold, leased or otherwise disposed of; and/or



 









 






     (2) to prepay or retire Senior Debt of the Company and/or its Restricted Subsidiaries,
provided that (i) the Company shall offer to prepay each outstanding Note ratably with all
such Senior Debt prepaid or retired, and (ii) any such prepayment of the Notes shall be made
in accordance with the terms of Section 8.2 (except at par and without the payment of any
Make-Whole Amount or any other premium).



     As used in this Section 10.4, a sale, lease or other disposition of assets shall be deemed to
be a “substantial part” of the assets of the Company and its Restricted Subsidiaries if the book
value of such assets, when added to the book value of all other assets sold, leased or otherwise
disposed of by the Company and its Restricted Subsidiaries during the period of 12 consecutive
months ending on the date of such sale, lease or other disposition, exceeds 10% of the book value
of Consolidated Total Assets, determined as of the end of the fiscal quarter immediately preceding
such sale, lease or other disposition; provided that there shall be excluded from any determination
of a “substantial part” any (i) sale or disposition of assets in the ordinary course of business of
the Company and its Restricted Subsidiaries, (ii) any transfer of assets from the Company to any
Restricted Subsidiary or from any Restricted Subsidiary to the Company or a Restricted Subsidiary,
(iii) sales of accounts receivable pursuant to one or more Receivables Securitization Financings
with respect to which the aggregate purchase commitments do not exceed


$75,000,000, and (iv) any sale or transfer of property acquired by the Company or any
Restricted Subsidiary after the date of this Agreement to any Person within 365 days following the
acquisition or construction of such property by the Company or any Restricted Subsidiary if the
Company or a Restricted Subsidiary shall concurrently with such sale or transfer, lease such
property, as lessee.



     Section 10.5. Merger and Consolidation. The Company will not, and will not permit any of its
Restricted Subsidiaries to, consolidate with or merge with any other Person or convey, transfer or
lease substantially all of its assets in a single transaction or series of transactions to any
Person; provided that:




     (1) any Restricted Subsidiary of the Company may (x) consolidate with or merge with, or
convey, transfer or lease substantially all of its assets in a single transaction or series
of transactions to, (i) the Company or a Restricted Subsidiary so long as in any merger or
consolidation involving the Company, the Company shall be the surviving or continuing
corporation or (ii) any other Person so long as the survivor is a Restricted Subsidiary, or
(y) convey, transfer or lease all of its assets in compliance with the provisions of Section
10.4; and




     (2) the foregoing restriction does not apply to the consolidation or merger of the
Company with, or the conveyance, transfer or lease of substantially all of the assets of the
Company in a single transaction or series of transactions to, any Person so long as:




     (a) the successor formed by such consolidation or the survivor of such merger
or the Person that acquires by conveyance, transfer or lease substantially all of
the assets of the Company as an entirety, as the case may be (the “Successor
Entity”), shall be a solvent entity organized and existing under the laws of the
United States of America, any State thereof or the District of Columbia;



 









 






     (b) if the Company is not the Successor Entity, such Successor Entity shall
have executed and delivered to each holder of Notes its assumption of the due and
punctual performance and observance of each covenant and condition of this Agreement
(and each Supplement hereto) and the Notes (pursuant to such agreements and
instruments as shall be reasonably satisfactory to the Required Holders), and the
Successor Entity shall have caused to be delivered to each holder of Notes (A) an
opinion of nationally recognized independent counsel, to the effect that all
agreements or instruments effecting such assumption are enforceable in accordance
with their terms and (B) an acknowledgment from each Subsidiary Guarantor that the
Subsidiary Guaranty continues in full force and effect; and




     (c) immediately before and immediately after giving effect to such transaction
no Default or Event of Default would exist.



     Section 10.6. Transactions with Affiliates. The Company will not and will not permit any
Restricted Subsidiary to enter into directly or indirectly any Material transaction or Material
group of related transactions (including
without limitation the purchase, lease, sale or exchange of properties of any kind or the rendering
of any service) with any Affiliate (other than the Company or another Restricted Subsidiary),
except in the ordinary course and upon fair and reasonable terms that are not materially less
favorable to the Company or such Restricted Subsidiary, taken as a whole, than would be obtainable
in a comparable arm’s-length transaction with a Person not an Affiliate.



     Section 10.7. Terrorism Sanctions Regulations. The Company will not and will not permit any
Subsidiary to (a) become a Person described or designated in the Specially Designated Nationals and
Blocked Persons List of the Office of Foreign Assets Control or in Section 1 of the Anti-Terrorism
Order or (b) to the best of the Company’s knowledge after reasonable investigation, engage in any
dealings or transactions with any such Person.



Section 11. Events of Default.




     An “Event of Default” shall exist if any of the following conditions or events shall occur and
be continuing:




     (a) the Company defaults in the payment of any principal or Make-Whole Amount, if any,
on any Note when the same becomes due and payable, whether at maturity or at a date fixed
for prepayment or by declaration or otherwise; or




     (b) the Company defaults in the payment of any interest on any Note for more than five
Business Days after the same becomes due and payable; or




     (c) the Company defaults in the performance of or compliance with any term contained in
Section 10 or any covenant in a Supplement which specifically provides that it shall have
the benefit of this paragraph (c) or any Subsidiary Guarantor defaults in the



 









 





performance of
or compliance with any term of the Subsidiary Guaranty beyond any period of grace or cure
period (if any) provided with respect thereto; or

     (d) the Company defaults in the performance of or compliance with any term contained
herein or in any Supplement (other than those referred to in paragraphs (a), (b) and (c) of
this Section 11) and such default is not remedied within 30 days after the earlier of (i) a
Responsible Officer obtaining actual knowledge of such default or (ii) the Company receiving
written notice of such default from any holder of a Note (any such written notice to be
identified as a “notice of default” and to refer specifically to this paragraph (d) of
Section 11); or




     (e) any Subsidiary Guaranty ceases to be a legally valid, binding and enforceable
obligation or contract of a Subsidiary Guarantor (other than upon a release of any
Subsidiary Guarantor from a Subsidiary Guaranty in accordance with the terms of Section
2.3(b) hereof), or any Subsidiary Guarantor or any party by, through or on account of any
such Person, challenges in writing the validity, binding nature or enforceability of any
such Subsidiary Guaranty; or




     (f) any representation or warranty made in writing by or on behalf of the Company or
Subsidiary Guarantor in this Agreement or any Subsidiary Guaranty or by any officer of the
Company or any Subsidiary Guarantor in any writing furnished in connection with the
transactions contemplated hereby or by any Subsidiary Guaranty proves to have been false or
incorrect in any material respect on the date as of which made; or




     (g) (i) the Company or any Restricted Subsidiary is in default (as principal or as
guarantor or other surety) in the payment of any principal of or premium or make-whole
amount or interest (in the payment amount of at least $100,000) on any Debt other than the
Notes that is outstanding in an aggregate principal amount of at least $10,000,000 beyond
any period of grace provided with respect thereto, or (ii) the Company or any Restricted
Subsidiary is in default in the performance of or compliance with any term of any
instrument, mortgage, indenture or other agreement relating to any Debt other than the Notes
in an aggregate principal amount of at least $10,000,000 or any other condition exists, and
as a consequence of such default or condition such Debt has become, or has been declared,
due and payable, or (iii) as a consequence of the occurrence or continuation of any event or
condition (other than the passage of time or the right of the holder of Debt to convert such
Debt into equity interests), the Company or any Restricted Subsidiary has become obligated
to purchase or repay Debt other than the Notes before its regular maturity or before its
regularly scheduled dates of payment in an aggregate outstanding principal amount of at
least $10,000,000; or




     (h) the Company or any Material Subsidiary (i) is generally not paying, or admits in
writing its inability to pay, its debts as they become due, (ii) files, or consents by
answer or otherwise to the filing against it of, a petition for relief or reorganization or
arrangement or any other petition in bankruptcy, for liquidation or to take advantage of any
bankruptcy, insolvency, reorganization, moratorium or other similar law of any



 









 







jurisdiction, (iii) makes an assignment for the benefit of its creditors, (iv) consents to the appointment
of a custodian, receiver, trustee or other officer with similar powers with respect to it or
with respect to any substantial part of its property, (v) is adjudicated as insolvent or to
be liquidated, or (vi) takes corporate action for the purpose of any of the foregoing; or




     (i) a court or governmental authority of competent jurisdiction enters an order
appointing, without consent by the Company or any of its Material Subsidiaries, a custodian,
receiver, trustee or other officer with similar powers with respect to it or with respect to
any substantial part of its property, or constituting an order for relief or approving a
petition for relief or reorganization or any other petition in bankruptcy or for liquidation
or to take advantage of any bankruptcy or insolvency law of any jurisdiction, or ordering
the dissolution, winding-up or liquidation of the Company or any of its Material
Subsidiaries, or any such petition shall be filed against the Company or any of its Material
Subsidiaries and such petition shall not be dismissed within 60 days; or




     (j) a final judgment or judgments at any one time outstanding for the payment of money
aggregating in excess of $10,000,000 (except to the extent covered by independent
third-party insurance as to which the insurer acknowledges in writing that
such judgment or judgments are covered by such insurance) are rendered against one or more
of the Company or any of its Restricted Subsidiaries and which judgments are not, within 60
days after entry thereof, bonded, discharged or stayed pending appeal, or are not discharged
within 60 days after the expiration of such stay; or




     (k) if (i) any Plan shall fail to satisfy the minimum funding standards of ERISA or the
Code for any plan year or part thereof or a waiver of such standards or extension of any
amortization period is sought or granted under Section 412 of the Code, (ii) a notice of
intent to terminate any Plan shall have been or is reasonably expected to be filed with the
PBGC or the PBGC shall have instituted proceedings under Section 4042 of ERISA to terminate
or appoint a trustee to administer any Plan or the PBGC shall have notified the Company or
any ERISA Affiliate that a Plan may become a subject of any such proceedings, (iii) the
aggregate “amount of unfunded benefit liabilities” (within the meaning of Section
4001(a)(18) of ERISA) under all Plans, determined in accordance with Title IV of ERISA,
shall exceed $10,000,000, (iv) the Company or any ERISA Affiliate shall have incurred or is
reasonably expected to incur any liability pursuant to Title I or IV of ERISA or the penalty
or excise tax provisions of the Code relating to employee benefit plans, (v) the Company or
any ERISA Affiliate withdraws from any Multiemployer Plan, or (vi) the Company or any
Subsidiary establishes or amends any employee welfare benefit plan that provides
post-employment welfare benefits in a manner that would increase the liability of the
Company or any Subsidiary thereunder; and any such event or events described in clauses (i)
through (vi) above, either individually or together with any other such event or events,
would reasonably be expected to have a Material Adverse Effect.


As used in Section 11(k), the terms “employee benefit plan” and “employee welfare benefit plan”
shall have the respective meanings assigned to such terms in Section 3 of ERISA.





 









 








     Section 12. Remedies on Default, Etc.



     Section 12.1. Acceleration. (a) If an Event of Default with respect to the Company described
in paragraph (h) or (i) of Section 11 (other than an Event of Default described in clause (i) of
paragraph (h) or described in clause (vi) of paragraph (h) by virtue of the fact that such clause
encompasses clause (i) of paragraph (h)) has occurred, all the Notes of every Series then
outstanding shall automatically become immediately due and payable.



     (b) If any other Event of Default has occurred and is continuing, any holder or holders of
more than 50% in aggregate principal amount of the Notes of any Series at the time outstanding may
at any time at its or their option, by notice or notices to the Company, declare all the Notes of
such Series then outstanding to be immediately due and payable.



     (c) If any Event of Default described in paragraph (a) or (b) of Section 11 has occurred and
is continuing with respect to any Notes, any holder or holders of Notes at the time outstanding
affected by such Event of Default may at any time, at its or their option, by notice or
notices to the Company, declare all the Notes held by such holder or holders to be immediately due
and payable.



     Upon any Note’s becoming due and payable under this Section 12.1, whether automatically or by
declaration, such Note will forthwith mature and the entire unpaid principal amount of such Note,
plus (i) all accrued and unpaid interest thereon (including, but not limited to, interest accrued
thereon at the Default Rate) and (ii) the Make-Whole Amount determined in respect of such principal
amount (to the full extent permitted by applicable law), shall all be immediately due and payable,
in each and every case without presentment, demand, protest or further notice, all of which are
hereby waived. The Company acknowledges, and the parties hereto agree, that each holder of a Note
has the right to maintain its investment in the Notes free from repayment by the Company (except as
herein specifically provided for) and that the provision for payment of a Make-Whole Amount by the
Company in the event that the Notes are prepaid or are accelerated as a result of an Event of
Default, is intended to provide compensation for the deprivation of such right under such
circumstances.



     Section 12.2. Other Remedies. If any Default or Event of Default has occurred and is
continuing, and irrespective of whether any Notes have become or have been declared immediately due
and payable under Section 12.1, the holder of any Note at the time outstanding may proceed to
protect and enforce the rights of such holder by an action at law, suit in equity or other
appropriate proceeding, whether for the specific performance of any agreement contained herein or
in any Note, or for an injunction against a violation of any of the terms hereof or thereof, or in
aid of the exercise of any power granted hereby or thereby or by law or otherwise.



     Section 12.3. Rescission. At any time after the Notes of any Series have been declared due
and payable pursuant to clause (b) or (c) of Section 12.1, the holders of not less than 51% in
aggregate principal amount of the Notes of such Series then outstanding, by written notice to the
Company, may rescind and annul any such declaration and its consequences if (a) the Company has
paid all overdue interest on the Notes of such Series, all principal of and Make-Whole Amount on
any Notes of such Series that are due and payable and are unpaid other than by reason



 









 







of such declaration, and all interest on such overdue principal and Make-Whole Amount and (to the extent
permitted by applicable law) any overdue interest in respect of the Notes of such Series at the
Default Rate, (b) neither the Company nor any other Person shall have paid any amounts which have
become due solely by reason of such declaration, (c) all Events of Default and Defaults, other than
non-payment of amounts that have become due solely by reason of such declaration, have been cured
or have been waived pursuant to Section 17, and (d) no judgment or decree has been entered for the
payment of any monies due pursuant hereto or to any Notes of such Series. No rescission and
annulment under this Section 12.3 will extend to or affect any subsequent Event of Default or
Default or impair any right consequent thereon.



     Section 12.4. No Waivers or Election of Remedies, Expenses, Etc. No course of dealing and no
delay on the part of any holder of any Note in exercising any right, power or remedy shall operate
as a waiver thereof or otherwise prejudice such holder’s rights, powers or remedies. No right,
power or
remedy conferred by this Agreement or by any Note upon any holder thereof shall be exclusive of any
other right, power or remedy referred to herein or therein or now or hereafter available at law, in
equity, by statute or otherwise. Without limiting the obligations of the Company under Section 15,
the Company will pay to the holder of each Note on demand such further amount as shall be
sufficient to cover all costs and expenses of such holder incurred in any enforcement or collection
under this Section 12, including, without limitation, reasonable attorneys’ fees, expenses and
disbursements.



Section 13. Registration; Exchange; Substitution of Notes.




     Section 13.1. Registration of Notes. The Company shall keep at its principal executive office
a register for the registration and registration of transfers of Notes. The name and address of
each holder of one or more Notes, each transfer thereof and the name and address of each transferee
of one or more Notes shall be registered in such register. Prior to due presentment for
registration of transfer, the Person in whose name any Note shall be registered shall be deemed and
treated as the owner and holder thereof for all purposes hereof, and the Company shall not be
affected by any notice or knowledge to the contrary. The Company shall give to any holder of a
Note that is an Institutional Investor promptly upon request therefor, a complete and correct copy
of the names and addresses of all registered holders of Notes.



     Section 13.2. Transfer and Exchange of Notes. Upon surrender of any Note to the Company at
the address and to the attention of the designated officer (all as specified in Section 18(iii)),
for registration of transfer or exchange (and in the case of a surrender for registration of
transfer accompanied by a written instrument of transfer duly executed by the registered holder of
such Note or such holder’s attorney duly authorized in writing and accompanied by the relevant
name, address and other information for notices of each transferee of such Note or part thereof),
within ten Business Days thereafter, the Company shall execute and deliver, at the Company’s
expense (except as provided below), one or more new Notes (as requested by the holder thereof) of
the same Series (and of the same tranche if such Series has separate tranches) in exchange
therefor, in an aggregate principal amount equal to the unpaid principal amount of the surrendered
Note. Each such new Note shall be payable to such Person as such holder may request and shall be
substantially in the form of the Note of such Series originally issued hereunder or pursuant to any
Supplement. Each such new Note shall be dated



 









 







and bear interest from the date to which interest shall have been paid on the surrendered Note or dated the date of the surrendered Note if no
interest shall have been paid thereon. The Company may require payment of a sum sufficient to
cover any stamp tax or governmental charge imposed in respect of any such transfer of Notes. Notes
shall not be transferred in denominations of less than $2,000,000, provided that if necessary to
enable the registration of transfer by a holder of its entire holding of Notes, one Note may be in
a denomination of less than $2,000,000. Any transferee, by its acceptance of a Note registered in
its name (or the name of its nominee), shall be deemed to have made the representations set forth
in Sections 6.2 and 6.3.



     The Notes have not been registered under the Securities Act or under the securities laws of
any state and each holder agrees that such Notes shall not be transferred or resold unless
registered under the Securities Act and all applicable state securities laws or unless an exemption
from the requirement for such registration is available.



     Section 13.3. Replacement of Notes. Upon receipt by the Company at the address and to the
attention of the designated officer (all as specified in Section 18(iii)) of evidence reasonably
satisfactory to it of the ownership of and the loss, theft, destruction or mutilation of any Note
(which evidence shall be, in the case of an Institutional Investor, notice from such Institutional
Investor of such ownership and such loss, theft, destruction or mutilation), and




     (a) in the case of loss, theft or destruction, of indemnity reasonably satisfactory to
it (provided that if the holder of such Note is, or is a nominee for, an original Purchaser
or another holder of a Note with a minimum net worth of at least $50,000,000 or a Qualified
Institutional Buyer, such Person’s own unsecured agreement of indemnity shall be deemed to
be satisfactory), or




     (b) in the case of mutilation, upon surrender and cancellation thereof,


the Company at its own expense shall execute and deliver not more than 10 Business Days following
satisfaction of such conditions, in lieu thereof, a new Note of the same Series (and of the same
tranche if such Series has separate tranches), dated and bearing interest from the date to which
interest shall have been paid on such lost, stolen, destroyed or mutilated Note or dated the date
of such lost, stolen, destroyed or mutilated Note if no interest shall have been paid thereon.




Section 14. Payments on Notes.




     Section 14.1. Place of Payment. Subject to Section 14.2, payments of principal, Make-Whole
Amount and interest becoming due and payable on the Notes shall be made in New York, New York at
the principal office of Bank of America, N.A. in such jurisdiction. The Company may at any time,
by notice to each holder of a Note, change the place of payment of the Notes so long as such place
of payment shall be either the principal office of the Company in such jurisdiction or the
principal office of a bank or trust company in such jurisdiction.



     Section 14.2. Home Office Payment. So long as any Purchaser or Additional Purchaser or such
Purchaser’s nominee or such Additional Purchaser’s nominee shall be the holder of any Note, and
notwithstanding anything contained in Section 14.1 or in such Note to the contrary, the



 









 







Company will pay all sums becoming due on such Note for principal, Make-Whole Amount and interest by the
method and at the address specified for such purpose for such Purchaser on Schedule A hereto or, in
the case of any Additional Purchaser, Schedule A attached to any Supplement pursuant to which such
Additional Purchaser is a party, or by such other method or at such other address as such Purchaser
or Additional Purchaser shall have from time to time specified to the Company in writing for such
purpose, without the presentation or surrender of such Note or the making of any notation
thereon, except that upon written request of the Company made concurrently with or reasonably
promptly after payment or prepayment in full of any Note, such Purchaser or Additional Purchaser
shall surrender such Note for cancellation, reasonably promptly after any such request, to the
Company at its principal executive office or at the place of payment most recently designated by
the Company pursuant to Section 14.1. Prior to any sale or other disposition of any Note held by
any Purchaser or Additional Purchaser or such Person’s nominee, such Person will, at its election,
either endorse thereon the amount of principal paid thereon and the last date to which interest has
been paid thereon or surrender such Note to the Company in exchange for a new Note or Notes
pursuant to Section 13.2. The Company will afford the benefits of this Section 14.2 to any
Institutional Investor that is the direct or indirect transferee of any Note purchased by a
Purchaser under this Agreement and that has made the same agreement relating to such Note as the
Purchasers have made in this Section 14.2.



Section 15. Expenses, Etc.




     Section 15.1. Transaction Expenses. Whether or not the transactions contemplated hereby are
consummated, the Company will pay all reasonable actual out-of-pocket costs and expenses (including
reasonable attorneys’ fees of a special counsel for the Purchasers or any Additional Purchasers
and, if reasonably required by the Required Holders, local or other counsel) incurred by each
Purchaser and each Additional Purchaser and each other holder of a Note in connection with such
transactions and in connection with any amendments, waivers or consents under or in respect of this
Agreement (including any Supplement) or the Notes (whether or not such amendment, waiver or consent
becomes effective), including, without limitation: (a) the costs and expenses incurred in enforcing
or defending (or determining whether or how to enforce or defend) any rights under this Agreement
(including any Supplement) or the Notes or in responding to any subpoena or other legal process or
informal investigative demand issued in connection with this Agreement (including any Supplement)
or the Notes, or by reason of being a holder of any Note, and (b) the costs and expenses, including
financial advisors’ fees, incurred in connection with the insolvency or bankruptcy of the Company
or any Subsidiary or in connection with any work-out or restructuring of the transactions
contemplated hereby and by the Notes. The Company will pay, and will save each Purchaser, each
Additional Purchaser and each other holder of a Note harmless from, all claims in respect of any
fees, costs or expenses if any, of brokers and finders (other than those, if any, retained by a
Purchaser or other holder in connection with its purchase of the Notes).



     Section 15.2. Survival. The obligations of the Company under this Section 15 will survive the
payment or transfer of any Note, the enforcement, amendment or waiver of any provision of this
Agreement, any Supplement or the Notes, and the termination of this Agreement or any Supplement.



 









 





Section 16. Survival of Representations and Warranties; Entire Agreement. 




     All representations and warranties contained herein or in any Supplement shall survive the
execution and delivery of this Agreement, such Supplement and the Notes, the purchase or transfer
by any Purchaser or any Additional Purchaser of any such Note or portion thereof or interest
therein and the payment of any Note may be relied upon by any subsequent holder of any such Note,
regardless of any investigation made at any time by or on behalf of any Purchaser or any Additional
Purchaser or any other holder of any such Note. All statements contained in any certificate or
other instrument delivered by or on behalf of the Company pursuant to this Agreement or any
Supplement shall be deemed representations and warranties of the Company under this Agreement;
provided, that the representations and warranties contained in any Supplement shall only be made
for the benefit of the Additional Purchasers which are party to such Supplement and the holders of
the Notes issued pursuant to such Supplement, including subsequent holders of any Note issued
pursuant to such Supplement, and shall not require the consent of the holders of existing Notes.
Subject to the preceding sentence, this Agreement (including every Supplement) and the Notes embody
the entire agreement and understanding between the Purchasers and the Additional Purchasers and the
Company and supersede all prior agreements and understandings relating to the subject matter
hereof.



Section 17. Amendment and Waiver.




     Section 17.1. Requirements. (a) This Agreement (including any Supplement) and the Notes may
be amended, and the observance of any term hereof or of the Notes may be waived (either
retroactively or prospectively), with (and only with) the written consent of the Company and the
Required Holders, except that (i) no amendment or waiver of any of the provisions of Section 1, 2,
3, 4, 5, 6 or 21 hereof or the corresponding provision of any Supplement, or any defined term (as
it is used in any such Section or such corresponding provision of any Supplement), will be
effective as to any holder of Notes unless consented to by such holder of Notes in writing, and
(ii) no such amendment or waiver may, without the written consent of all of the holders of Notes at
the time outstanding affected thereby, (A) subject to the provisions of Section 12 relating to
acceleration or rescission, change the amount or time of any prepayment or payment of principal of,
or reduce the rate or change the time of payment or method of computation of interest (if such
change results in a decrease in the interest rate) or of the Make-Whole Amount on, the Notes, (B)
change the percentage of the principal amount of the Notes the holders of which are required to
consent to any such amendment or waiver, or (C) amend any of Sections 8, 11(a), 11(b), 12, 17 or
20.



          (b) Supplements. Notwithstanding anything to the contrary contained herein, the Company may
enter into any Supplement providing for the issuance of one or more Series of Additional Notes
consistent with Section 2.2 hereof without obtaining the consent of any holder of any other Series
of Notes.




     Section 17.2. Solicitation of Holders of Notes.



     (a) Solicitation. The Company will provide each holder of the Notes (irrespective of the
amount of Notes then owned by it) with sufficient information, sufficiently far in advance of



 









 







the date a decision is required, to enable such holder to make an informed and considered decision with
respect to any proposed amendment, waiver or consent in respect of any of the provisions hereof, of
any Supplement or of the Notes. The Company will deliver executed or true and correct copies of
each amendment, waiver or consent effected pursuant to the provisions of this Section 17 to each
holder of outstanding Notes promptly following the date on which it is executed and delivered by,
or receives the consent or approval of, the requisite holders of Notes.



     (b) Payment. The Company will not directly or indirectly pay or cause to be paid any
remuneration, whether by way of supplemental or additional interest, fee or otherwise, or grant any
security or provide other credit support, to any holder of Notes as consideration for or as an
inducement to the entering into by any holder of Notes of any waiver or amendment of any of the
terms and provisions hereof or of any Supplement unless such remuneration is concurrently paid, or
security is concurrently granted or other credit support is concurrently provided, on the same
terms, ratably to each holder of Notes then outstanding even if such holder did not consent to such
waiver or amendment.



     (c) Consent in Contemplation of Transfer. Any consent made pursuant to this Section 17 by a
holder of Notes that has transferred or has agreed to transfer its Notes to the Company, any
Subsidiary or any Affiliate of the Company and has provided or has agreed to provide such written
consent as a condition to such transfer shall be void and of no force or effect except solely as to
such holder, and any amendments effected or waivers granted or to be effected or granted that would
not have been or would not be so effected or granted but for such consent (and the consents of all
other holders of Notes that were acquired under the same or similar conditions) shall be void and
of no force or effect except solely as to such holder.



     Section 17.3. Binding Effect, Etc. Any amendment or waiver consented to as provided in this
Section 17 applies equally to all holders of Notes and is binding upon them and upon each future
holder of any Note and upon the Company without regard to whether such Note has been marked to
indicate such amendment or waiver. No such amendment or waiver will extend to or affect any
obligation, covenant, agreement, Default or Event of Default not expressly amended or waived or
impair any right consequent thereon. No course of dealing between the Company and the holder of
any Note nor any delay in exercising any rights hereunder or under any Note shall operate as a
waiver of any rights of any holder of such Note. As used herein, the term “this Agreement” and
references thereto shall mean this Agreement as it may from time to time be amended or
supplemented.



     Section 17.4. Notes Held by Company, Etc. Solely for the purpose of determining whether the
holders of the requisite percentage of the aggregate principal amount of Notes then outstanding
approved or consented to any amendment, waiver or consent to be given under this Agreement or the
Notes, or have directed the taking of any action provided herein or in the Notes to be taken upon
the direction of
the holders of a specified percentage of the aggregate principal amount of Notes then outstanding,
Notes directly or indirectly owned by the Company or any of its Affiliates shall be deemed not to
be outstanding.



 









 





Section 18. Notices.




     All notices and communications provided for hereunder shall be in writing and sent (a) by
telecopy if the sender on the same day sends a confirming copy of such notice by a recognized
overnight delivery service (charges prepaid), (b) by registered or certified mail with return
receipt requested (postage prepaid) or (c) by a recognized overnight delivery service (with charges
prepaid). Any such notice must be sent:




     (i) if to a Purchaser or such Purchaser’s nominee, to such Purchaser or such
Purchaser’s nominee at the address specified for such communications in Schedule A to this
Agreement, or at such other address as such Purchaser or such Purchaser’s nominee shall have
specified to the Company in writing pursuant to this Section 18;




     (ii) if to an Additional Purchaser or such Additional Purchaser’s nominee, to such
Additional Purchaser or such Additional Purchaser’s nominee at the address specified for
such communications in Schedule A to any Supplement, or at such other address as such
Additional Purchaser or such Additional Purchaser’s nominee shall have specified to the
Company in writing,




     (iii) if to any other holder of any Note, to such holder at such address as such other
holder shall have specified to the Company in writing pursuant to this Section 18, or




     (iv) if to the Company, to the Company at its address set forth at the beginning hereof
to the attention of Chief Financial Officer, with a copy to the General Counsel, or at such
other address as the Company shall have specified to the holder of each Note in writing.


Notices under this Section 18 will be deemed given only when actually received.




Section 19. Reproduction of Documents.




     This Agreement and all documents relating thereto, including, without limitation, (a)
consents, waivers and modifications that may hereafter be executed, (b) documents received by any
Purchaser at the Closing or by any Additional Purchaser (except the Notes themselves), and (c)
financial statements, certificates and other information previously or hereafter furnished to any
Purchaser or any Additional Purchaser, may be reproduced by such Purchaser or such Additional
Purchaser by any photographic, photostatic, electronic, digital, or other similar process and such
Purchaser or such Additional Purchaser may destroy any original document so reproduced. The
Company agrees and stipulates that, to the extent permitted by applicable law, any such
reproduction shall be admissible in evidence as the original itself in any judicial or
administrative proceeding (whether or not the original is in existence and whether or not such
reproduction was made by such Purchaser or such Additional Purchaser in the regular course of
business) and any enlargement, facsimile or further reproduction of such reproduction shall
likewise be admissible in evidence. This Section 19 shall not prohibit the Company or any other
holder of Notes from contesting any such reproduction to the same extent that it could contest the
original, or from introducing evidence to demonstrate the inaccuracy of any such reproduction.



 









 





Section 20. Confidential Information.




     For the purposes of this Section 20, “Confidential Information” means information delivered to
any Purchaser or any Additional Purchaser by or on behalf of the Company or any Subsidiary in
connection with the transactions contemplated by or otherwise pursuant to this Agreement that is
proprietary in nature and that was clearly marked or labeled or otherwise adequately identified
when received by such Purchaser or Additional Purchaser as being confidential information of the
Company or such Subsidiary, provided that such term does not include information that (a) was
publicly known or otherwise known to such Purchaser or such Additional Purchaser prior to the time
of such disclosure, (b) subsequently becomes publicly known through no act or omission by such
Purchaser or such Additional Purchaser or any Person acting on such Purchaser’s or such Additional
Purchaser’s behalf, (c) otherwise becomes known to such Purchaser or such Additional Purchaser
other than through disclosure by the Company or any Subsidiary, or through disclosure by any other
Person known by such Purchaser or Additional Purchaser to be subject to a confidentiality agreement
or undertaking, or (d) constitutes financial statements delivered to such Purchaser or such
Additional Purchaser under Section 7.1 that are otherwise publicly available. Each Purchaser and
each Additional Purchaser will maintain the confidentiality of such Confidential Information in
accordance with procedures adopted by such Purchaser or such Additional Purchaser in good faith to
protect confidential information of third parties delivered to such Purchaser or such Additional
Purchaser, provided that such Purchaser or such Additional Purchaser may deliver or disclose
Confidential Information to (i) such Purchaser’s or such Additional Purchaser’s directors,
trustees, officers, employees, agents, attorneys and affiliates (to the extent such disclosure
reasonably relates to the administration of the investment represented by such Purchaser’s or such
Additional Purchaser’s Notes), (ii) such Purchaser’s or such Additional Purchaser’s financial
advisors and other professional advisors who agree to hold confidential the Confidential
Information substantially in accordance with the terms of this Section 20, (iii) any other holder
of any Note, (iv) any Institutional Investor to which such Purchaser or such Additional Purchaser
sells or offers to sell such Note or any part thereof or any participation therein (if such Person
has agreed in writing prior to its receipt of such Confidential Information to be bound by the
provisions of this Section 20), (v) any Person from which such Purchaser or such Additional
Purchaser offers to purchase any security of the Company (if such Person has agreed in writing
prior to its receipt of such Confidential Information to be bound by the provisions of this Section
20), (vi) any federal or state regulatory authority having jurisdiction over such Purchaser or such
Additional Purchaser, (vii) the National Association of Insurance Commissioners or any similar
organization, or any nationally recognized rating agency that requires access to information about
such Purchaser’s or such Additional Purchaser’s investment portfolio, or (viii) any other Person to
which such delivery or disclosure may be necessary or appropriate (w) to effect compliance with any
law, rule, regulation or order applicable to such Purchaser or such Additional Purchaser, (x) in
response to any subpoena or other legal process,
(y) in connection with any litigation to which such Purchaser or such Additional Purchaser is
a party or (z) if an Event of Default has occurred and is continuing, to the extent such Purchaser
or such Additional Purchaser may reasonably determine such delivery and disclosure to be necessary
or appropriate in the enforcement or for the protection of the rights and remedies under such
Purchaser’s or such Additional Purchaser’s Notes, the Subsidiary Guaranty and this Agreement. Each
holder of a Note, by its acceptance of a Note, will be deemed to have agreed to be bound by



 









 







and to be entitled to the benefits of this Section 20 as though it were a party to this Agreement. On
reasonable request by the Company in connection with the delivery to any holder of a Note of
information required to be delivered to such holder under this Agreement or requested by such
holder (other than a holder that is a party to this Agreement or its nominee), such holder will
enter into an agreement with the Company embodying the provisions of this Section 20.



Section 21. Substitution of Purchaser.




     Each Purchaser and each Additional Purchaser shall have the right to substitute any one of its
Affiliates as the purchaser of the Notes that it has agreed to purchase hereunder, by written
notice to the Company, which notice shall be signed by both such Purchaser or such Additional
Purchaser and such Affiliate, shall contain such Affiliate’s agreement to be bound by this
Agreement and shall contain a confirmation by such Affiliate of the accuracy with respect to it of
the representations set forth in Section 6. Upon receipt of such notice, any reference to such
Purchaser or such Additional Purchaser in this Agreement (other than in this Section 21), shall be
deemed to refer to such Affiliate in lieu of such original Purchaser or such original Additional
Purchaser. In the event that such Affiliate is so substituted as a Purchaser or an Additional
Purchaser hereunder and such Affiliate thereafter transfers to such original Purchaser or such
original Additional Purchaser all of the Notes then held by such Affiliate, upon receipt by the
Company of notice of such transfer, any reference to such Affiliate as a “Purchaser” or an
“Additional Purchaser” in this Agreement (other than in this Section 21), shall no longer be deemed
to refer to such Affiliate, but shall refer to such original Purchaser or such original Additional
Purchaser, and such original Purchaser or such original Additional Purchaser shall again have all
the rights of an original holder of the Notes under this Agreement.



Section 22. Miscellaneous.




     Section 22.1. Successors and Assigns. All covenants and other agreements contained in this
Agreement (including all covenants and other agreements contained in any Supplement) by or on
behalf of any of the parties hereto bind and inure to the benefit of their respective successors
and assigns (including, without limitation, any subsequent holder of a Note) whether so expressed
or not.



     Section 22.2. Payments Due on Non-Business Days. Anything in this Agreement or the Notes to
the contrary notwithstanding (but without limiting the requirement in Section 8.4 that the notice
of any optional prepayment specify a Business Day as the date fixed for such prepayment), any
payment of principal of or Make-Whole Amount or interest on any Note that is due on a date other
than a Business Day shall be made on the next succeeding Business Day without including the
additional
days elapsed in the computation of the interest payable on such next succeeding Business Day;
provided that if the maturity date of any Note is a date other than a Business Day, the payment
otherwise due on such maturity date shall be made on the next succeeding Business Day and shall
include the additional days elapsed in the computation of interest payable on such next succeeding
Business Day.



 









 





     Section 22.3. Accounting Terms. All accounting terms used herein which are not expressly
defined in this Agreement have the meanings respectively given to them in accordance with GAAP.
Except as otherwise specifically provided herein, (i) all computations made pursuant to this
Agreement shall be made in accordance with GAAP, and (ii) all financial statements shall be
prepared in accordance with GAAP.



     Section 22.4. Severability. Any provision of this Agreement that is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining provisions hereof, and any
such prohibition or unenforceability in any jurisdiction shall (to the full extent permitted by
law) not invalidate or render unenforceable such provision in any other jurisdiction.



     Section 22.5. Construction. Each covenant contained herein shall be construed (absent express
provision to the contrary) as being independent of each other covenant contained herein, so that
compliance with any one covenant shall not (absent such an express contrary provision) be deemed to
excuse compliance with any other covenant. Where any provision herein refers to action to be taken
by any Person, or which such Person is prohibited from taking, such provision shall be applicable
whether such action is taken directly or indirectly by such Person.



     For the avoidance of doubt, all Schedules and Exhibits attached to this Agreement shall be
deemed to be a part hereof.



     Section 22.6. Counterparts. This Agreement may be executed in any number of counterparts,
each of which shall be an original but all of which together shall constitute one instrument. Each
counterpart may consist of a number of copies hereof, each signed by less than all, but together
signed by all, of the parties hereto.



     Section 22.7. Governing Law. This Agreement shall be construed and enforced in accordance
with, and the rights of the parties shall be governed by, the law of the State of New York
excluding choice-of-law principles of the law of such State that would permit the application of
the laws of a jurisdiction other than such State.



     Section 22.8. Jurisdiction and Process; Waiver of Jury Trial. (a) The Company irrevocably
submits to the non-exclusive jurisdiction of any New York State or federal court sitting in the
Borough of Manhattan, The City of New York, over any suit, action or proceeding arising out of or
relating to this Agreement or the Notes. To the fullest extent permitted by applicable law, the
Company
irrevocably waives and agrees not to assert, by way of motion, as a defense or otherwise, any claim
that it is not subject to the jurisdiction of any such court, any objection that it may now or
hereafter have to the laying of the venue of any such suit, action or proceeding brought in any
such court and any claim that any such suit, action or proceeding brought in any such court has
been brought in an inconvenient forum.



     (b) The Company consents to process being served by or on behalf of any holder of Notes in any
suit, action or proceeding of the nature referred to in Section 22.8(a) by mailing a copy thereof
by registered or certified mail (or any substantially similar form of mail), postage prepaid,
return receipt requested, to it at its address specified in Section 18 or at such other



 









 







address of
which such holder shall then have been notified pursuant to said Section. The Company agrees that
such service upon receipt (i) shall be deemed in every respect effective service of process upon it
in any such suit, action or proceeding and (ii) shall, to the fullest extent permitted by
applicable law, be taken and held to be valid personal service upon and personal delivery to it.
Notices hereunder shall be conclusively presumed received as evidenced by a delivery receipt
furnished by the United States Postal Service or any reputable commercial delivery service.



     (c) Nothing in this Section 22.8 shall affect the right of any holder of a Note to serve
process in any manner permitted by law, or limit any right that the holders of any of the Notes may
have to bring proceedings against the Company in the courts of any appropriate jurisdiction or to
enforce in any lawful manner a judgment obtained in one jurisdiction in any other jurisdiction.



     (d) The parties hereto to the fullest extent permitted by law hereby waive trial by jury
in any action brought on or with respect to this Agreement, the Notes or any other document
executed in connection herewith or therewith.



* * * * *




 









 








     The execution hereof by the Purchasers shall constitute a contract among the Company and the
Purchasers for the uses and purposes hereinabove set forth. This Agreement may be executed in any
number of counterparts, each executed counterpart constituting an original but all together only
one agreement.



	 	 	 	 	 
	 	Very truly yours,

Eagle Materials Inc.

 	 
	 	By:  	/s/ Arthur R. Zunker, Jr.
 	 
	 	 	Arthur R. Zunker, Jr. 	 
	 	 	Senior Vice President and Treasurer 	 
	 




 









 








Accepted as of the date first written above.




	 	 	 	 	 
	 	 	Metropolitan Life Insurance Company
	 
	 	 	 	 
	 

	 	By:
	 	/s/ Christopher D. Pahlke
	 

	 	 	 	 
	 

	 	 	 	Name: Christopher D. Pahlke
	 

	 	 	 	Title: Vice President






	 	 	 	 	 
	 	 	General American Life Insurance Company
	 
	 	 	 	 
	 

	 	By:
	 	Metropolitan Life Insurance Company, its

Investment Manager






	 	 	 	 	 	 	 
	 

	 	By
	 	/s/ Judith A. Gulotta
 

	 	 
	 

	 	 	 	Name: Judith A. Gulotta	 	 
	 

	 	 	 	Title: Director	 	 






	 	 	 	 	 
	 	 	The Travelers Insurance Company
	 
	 	 	 	 
	 

	 	By:
	 	Metropolitan Life Insurance Company, its

Investment Manager






	 	 	 	 	 	 	 
	 

	 	By
	 	/s/ Judith A. Gulotta
 

	 	 
	 

	 	 	 	Name: Judith A. Gulotta	 	 
	 

	 	 	 	Title: Director	 	 






 









 






	 	 	 	 	 
	 	Transamerica Occidental Life Insurance Company

 	 
	 	By:  	/s/ Christopher A. Pahlke
 	 
	 	 	Name:  	Christopher A. Pahlke 	 
	 	 	Title:  	Vice President 	 
	 




	 	 	 	 	 
	 	Transamerica Life Insurance Company

 	 
	 	By:  	/s/ Christopher A. Pahlke
 	 
	 	 	Name:  	Christopher A. Pahlke 	 
	 	 	Title:  	Vice President 	 
	 
	 	Monumental Life Insurance Company
	 	 	 	 
	 	By:
	/s/ Christopher A. Pahlke
	 	 	 
	 	 	Name: Christopher A. Pahlke
	 	 	Title: Vice President





 









 






	 	 	 	 	 
	 	 	The Lincoln National Life Insurance
Company
	 
	 	 	 	 
	 

	 	By:
	 	Delaware Investment Advisers, a series of
Delaware Management Business Trust,
Attorney-In-Fact






	 	 	 	 	 	 	 
	 

	 	By
	 	/s/ Bradley S. Ritter
 

	 	 
	 

	 	 	 	Name: Bradley S. Ritter	 	 
	 

	 	 	 	Title: Senior Vice President	 	 






	 	 	 	 	 
	 	 	Sons of Norway
	 
	 	 	 	 
	 

	 	By:
	 	Delaware Lincoln Investment Advisers, a
series of Delaware Management Business
Trust, Attorney-In-Fact






	 	 	 	 	 	 	 
	 

	 	By
	 	/s/ Bradley S. Ritter
 

	 	 
	 

	 	 	 	Name: Bradley S. Ritter	 	 
	 

	 	 	 	Title: Senior Vice President	 	 






	 	 	 	 	 
	 	 	First Penn-Pacific Life Insurance

Company
	 
	 	 	 	 
	 

	 	By:
	 	Delaware Investment Advisers, a series of
Delaware Management Business Trust,
Attorney-In-Fact






	 	 	 	 	 	 	 
	 

	 	By
	 	/s/ Bradley S. Ritter
 

	 	 
	 

	 	 	 	Name: Bradley S. Ritter	 	 
	 

	 	 	 	Title: Senior Vice President	 	 






	 	 	 	 	 
	 	 	Lincoln Life & Annuity Company of New
York
	 
	 	 	 	 
	 

	 	By:
	 	Delaware Investment Advisers, a series of
Delaware Management Business Trust,
Attorney-In-Fact






	 	 	 	 	 	 	 
	 

	 	By
	 	/s/ Bradley S. Ritter
 

Name: Bradley S. Ritter
	 	 
	 

	 	 	 	Title: Senior Vice President	 	 






 









 






	 	 	 	 	 
	 	 	Jackson National Life Insurance Company
	 
	 	 	 	 
	 

	 	By:
	 	PPM America, Inc., as attorney in fact,
on behalf of Jackson National Life Insurance
Company






	 	 	 	 	 	 	 
	 

	 	By
	 	/s/ Chris Kappas
 

Name: Chris Kappas
	 	 
	 

	 	 	 	Title: Managing Director	 	 






	 	 	 	 	 
	 	 	Jackson National Life Insurance Company of
New York
	 
	 	 	 	 
	 

	 	By:
	 	PPM America, Inc., as attorney in fact,
on behalf of Jackson National Life Insurance
Company of New York






	 	 	 	 	 	 	 
	 

	 	By
	 	/s/ Chris Kappas
 

	 	 
	 

	 	 	 	Name: Chris Kappas	 	 
	 

	 	 	 	Title: Managing Director	 	 






 









 






	 	 	 	 	 
	 	General Electric Capital Assurance Company

 	 
	 	By     /s/ Stephen R. De Motto
 	 
	 	Name:  	Stephen R. De Motto 	 
	 	Title:  	Investment Officer 	 
	 



	 	 	 	 	 
	 	GE Capital Life Assurance Company of New York

 	 
	 	By     /s/ Stephen R. De Moto
 	 
	 	Name:  	Stephen R. De Moto 	 
	 	Title:  	Investment Officer 	 



 









 






	 	 	 	 	 



Schedule A (to Note Purchase Agreement) intentionally omitted





 










 






Defined Terms




     As used herein, the following terms have the respective meanings set forth below or set forth
in the Section hereof following such term:



     “Additional Notes” is defined in Section 2.2.



     “Additional Purchasers” means purchasers of Additional Notes.



     “Affiliate” means, at any time, and with respect to any Person, (a) any other Person that at
such time directly or indirectly through one or more intermediaries Controls, or is Controlled by,
or is under common Control with, such first Person, and (b) any Person beneficially owning or
holding, directly or indirectly, 10% or more of any class of voting or equity interests of the
Company or any Subsidiary or any Person of which the Company and its Subsidiaries beneficially own
or hold, in the aggregate, directly or indirectly, 10% or more of any class of voting or equity
interests. As used in this definition, “Control” means the possession, directly or indirectly, of
the power to direct or cause the direction of the management and policies of a Person, whether
through the ownership of voting securities, by contract or otherwise. Unless the context otherwise
clearly requires, any reference to an “Affiliate” is a reference to an Affiliate of the Company.



     “Anti-Terrorism Order” means Executive Order No. 13,224 of September 24, 2001, Blocking
Property and Prohibiting Transactions with Persons Who Commit, Threaten to Commit or Support
Terrorism, 66 U.S. Fed. Reg. 49, 079 (2001), as amended.



     “Bank Credit Agreement” means the Amended and Restated Credit Agreement dated as of December
16, 2004 by and among the Company, certain Subsidiaries of the Company named therein, JPMorgan
Chase Bank, N.A., as administrative agent, and the other financial institutions party thereto, as
amended, restated, joined, supplemented or otherwise modified from time to time, and any renewals,
extensions or replacements thereof, which constitute the primary bank credit facility of the
Company and its Subsidiaries.



     “Business Day” means any day other than a Saturday, a Sunday or a day on which commercial
banks in New York, New York or Dallas, Texas are required or authorized to be closed.



     “Capital Lease” means, at any time, a lease with respect to which the lessee is required
concurrently to recognize the acquisition of an asset and the incurrence of a liability in
accordance with GAAP.



     “Capital Lease Obligation” means, with respect to any Person and a Capital Lease, the amount
of the obligation of such Person as the lessee under such Capital Lease which would, in accordance
with GAAP, appear as a liability on a balance sheet of such Person.



     “Closing” is defined in Section 3.



Schedule B

(to Note Purchase Agreement)




 









 





     “Closing Date” is defined in Section 3.



     “Code” means the Internal Revenue Code of 1986, as amended from time to time, and the rules
and regulations promulgated thereunder from time to time.



     “Company” means Eagle Materials Inc., a Delaware corporation, or any successor that becomes
such in the manner prescribed in Section 10.5.



     “Confidential Information” is defined in Section 20.



     “Consolidated Debt” means as of any date of determination the total amount of all Debt of the
Company and its Restricted Subsidiaries determined on a consolidated basis in accordance with GAAP.



     “Consolidated EBITDA” shall mean, for any period, Consolidated Net Income for such period,
plus, to the extent deducted in computing such Consolidated Net Income and without duplication, (a)
depreciation, depletion, if any, and amortization expense for such period, (b) Consolidated
Interest Expense for such period, (c) income tax expense for such period, and (d) other non-cash
charges for such period, all as determined on a consolidated basis in accordance with GAAP. For
purposes of calculating Consolidated EBITDA for any period of four consecutive quarters, if during
such period the Company or any Restricted Subsidiary shall have acquired or disposed of any Person
or acquired or disposed of all or substantially all of the operating assets of any Person,
Consolidated EBITDA for such period shall be calculated after giving pro forma effect thereto as if
such transaction had occurred on the first day of such period.



     “Consolidated Interest Expense” shall mean, for any period, the aggregate of all interest
expense of the Company and its Restricted Subsidiaries deducted in the calculation of Consolidated
Net Income for such period, determined on a consolidated basis in accordance with GAAP.



     “Consolidated Net Income” shall mean, for any period, the consolidated net income (or loss) of
the Company and its Restricted Subsidiaries for such period, determined on a consolidated basis in
accordance with GAAP.



     “Consolidated Net Worth” shall mean the consolidated stockholder’s equity of the Company and
its Restricted Subsidiaries, as defined according to GAAP.



     “Consolidated Total Assets” means, as of any date of determination, the total amount of all
assets of the Company and its Restricted Subsidiaries, determined on a consolidated basis in
accordance with GAAP.



     “Debt” means, with respect to any Person, without duplication,




     (a) its liabilities for borrowed money;



B-2









 






     (b) its liabilities for the deferred purchase price of property acquired by such Person
(excluding accounts payable and other accrued liabilities arising in the ordinary course of
business but including, without limitation, all liabilities created or arising under any
conditional sale or other title retention agreement with respect to any such property);




     (c) its Capital Lease Obligations;




     (d) its liabilities for borrowed money secured by any Lien with respect to any property
owned by such Person (whether or not it has assumed or otherwise become liable for such
liabilities); and




     (e) Guarantees by such Person with respect to liabilities of a type described in any of
clauses (a) through (d) hereof.



     Debt of any Person shall include all obligations of such Person of the character described in
clauses (a) through (e) to the extent such Person remains legally liable in respect thereof
notwithstanding that any such obligation is deemed to be extinguished under GAAP.



     “Default” means an event or condition the occurrence or existence of which would, with the
lapse of time or the giving of notice or both, become an Event of Default.



     “Default Rate” means with respect to the Notes of any Series that rate of interest that is 2%
per annum above the rate of interest stated in clause (a) of the first paragraph of the Notes of
such Series (and of such tranche if such Series has separate tranches).



     “Electronic Delivery” is defined in Section 7.1(a).



     “Environmental Laws” means any and all federal, state, local, and foreign statutes, laws,
regulations, ordinances, rules, judgments, orders, decrees, permits, concessions, grants,
franchises, licenses, agreements or governmental restrictions relating to pollution and the
protection of the environment or the release of any materials into the environment, including but
not limited to those related to hazardous substances or wastes, air emissions and discharges to
waste or public systems.



     “ERISA” means the Employee Retirement Income Security Act of 1974, as amended from time to
time, and the rules and regulations promulgated thereunder from time to time in effect.



     “ERISA Affiliate” means any trade or business (whether or not incorporated) that is treated as
a single employer together with the Company under section 414 of the Code.



     “Event of Default” is defined in Section 11.



     “Exchange Act” means the Securities Exchange Act of 1934, as amended.



B-3









 






     “Fair Market Value” means, at any time and with respect to any property, the sale value of
such property that would be realized in an arm’s-length sale at such time between an informed and
willing buyer and an informed and willing seller (neither being under a compulsion to buy or sell),
as reasonably determined in the good faith opinion of the Company’s board of directors.



     “GAAP” means those generally accepted accounting principles as in effect from time to time in
the United States of America.



     “Governmental Authority” means





     (a) the government of




     (i) the United States of America or any state or other political subdivision
thereof, or




     (ii) any jurisdiction in which the Company or any Restricted Subsidiary
conducts all or any part of its business, or which has jurisdiction over any
properties of the Company or any Restricted Subsidiary, or




     (b) any entity exercising executive, legislative, judicial, regulatory or
administrative functions of, or pertaining to, any such government.



     “Guaranty” means, with respect to any Person, any obligation (except the endorsement in the
ordinary course of business of negotiable instruments for deposit or collection) of such Person
guaranteeing or in effect guaranteeing any Debt, dividend or other obligation of any other Person
in any manner, whether directly or indirectly, including (without limitation) obligations incurred
through an agreement, contingent or otherwise, by such Person:




     (a) to purchase such Debt or obligation or any property constituting security therefor
primarily for the purpose of assuring the owner of such Debt or obligation of the ability of
any other Person to make payment of the Debt or obligation;




     (b) to advance or supply funds (i) for the purchase or payment of such Debt or
obligation, or (ii) to maintain any working capital or other balance sheet condition or any
income statement condition of any other Person or otherwise to advance or make available
funds for the purchase or payment of such Debt or obligation;




     (c) to lease properties or to purchase properties or services primarily for the purpose
of assuring the owner of such Debt or obligation of the ability of any other Person to make
payment of the Debt or obligation; or




     (d) otherwise to assure the owner of such Debt or obligation against loss in respect
thereof.



     In any computation of the Debt or other liabilities of the obligor under any Guaranty, the
Debt or other obligations that are the subject of such Guaranty shall be assumed to be direct



B-4









 







obligations of such obligor, provided that the amount of such Debt outstanding for purposes of
this Agreement shall not exceed the maximum amount of Debt that is the subject of such Guaranty.



     “Guaranty Release” is defined in Section 2.3.



     “Hazardous Material” means any and all pollutants, toxic or hazardous wastes or other
substances that might pose a hazard to health and safety, the removal of which may be required or
the generation, manufacture, refining, production, processing, treatment, storage, handling,
transportation, transfer, use, disposal, release, discharge, spillage, seepage or filtration of
which is or shall be restricted, prohibited or penalized by any applicable law including, but not
limited to, asbestos, urea formaldehyde foam insulation, polychlorinated biphenyls, petroleum,
petroleum products, lead based paint, radon gas or similar restricted, prohibited or penalized
substances.



     “holder” means, with respect to any Note, the Person in whose name such Note is registered in
the register maintained by the Company pursuant to Section 13.1.



     “Institutional Investor” means (a) any original purchaser of a Note, (b) any holder of more
than $2,000,000 of the aggregate principal amount of the Notes then outstanding, and (c) any bank,
trust company, savings and loan association or other financial institution, any pension plan, any
investment company, any insurance company, any broker or dealer, or any other similar financial
institution or entity, regardless of legal form.



     “Lien” means, with respect to any Person, any mortgage, lien, pledge, charge, security
interest or other encumbrance, or any interest or title of any vendor, lessor, lender or other
secured party to or of such Person under any conditional sale or other title retention agreement
(other than an operating lease) or Capital Lease, upon or with respect to any property or asset of
such Person (including, in the case of stock, shareholder agreements, voting trust agreements and
all similar arrangements).



     “Make-Whole Amount” shall have the meaning (i) set forth in Section 8.6 with respect to any
Series 2005A Note and (ii) set forth in the applicable Supplement with respect to any other Series
of Notes.



     “Material” means material in relation to the business, operations, affairs, financial
condition, assets or properties of the Company and its Restricted Subsidiaries taken as a whole.



     “Material Adverse Effect” means a material adverse effect on (a) the business, operations,
affairs, financial condition, assets or properties of the Company and its Restricted Subsidiaries
taken as a whole, or (b) the ability of the Company to perform its obligations under this Agreement
(including any Supplement) and the Notes, (c) the ability of any Subsidiary Guarantor to perform
its obligations under the Subsidiary Guaranty or (d) the validity or enforceability of this
Agreement (including any Supplement), the Notes or the Subsidiary Guaranty.



B-5









 





     “Material Subsidiary” means, at any time, any Restricted Subsidiary of the Company which,
together with all other Restricted Subsidiaries of such Restricted Subsidiary, accounts for more
than (i) 5% of Consolidated Total Assets or (ii) 5% of consolidated revenue of the Company and its
Restricted Subsidiaries.



     “Memorandum” is defined in Section 5.3.



     “Multiemployer Plan” means any Plan that is a “multiemployer plan” (as such term is defined in
Section 4001(a)(3) of ERISA).



     “Notes” is defined in Section 1.



     “Officer’s Certificate” means a certificate of a Senior Financial Officer or of any other
officer of the Company whose responsibilities extend to the subject matter of such certificate.



     “PBGC” means the Pension Benefit Guaranty Corporation referred to and defined in ERISA or any
successor thereto.



     “Person” means an individual, partnership, corporation, limited liability company,
association, trust, unincorporated organization, or a government or agency or political subdivision
thereof.



     “Plan” means an “employee benefit plan” (as defined in Section 3(3) of ERISA) subject to Title
I of ERISA that is or, within the preceding five years, has been established or maintained, or to
which contributions are or, within the preceding five years, have been made or required to be made,
by the Company or any ERISA Affiliate or with respect to which the Company or any ERISA Affiliate
may have any liability.



     “Priority Debt” means (without duplication), as of the date of any determination thereof, the
sum of (i) all unsecured Debt of Restricted Subsidiaries (including all Guaranties of Debt of the
Company but excluding (x) Debt owing to the Company or any other Restricted Subsidiary, (y) Debt
outstanding at the time such Person became a Restricted Subsidiary (other than an Unrestricted
Subsidiary which is designated as a Restricted Subsidiary pursuant to Section 9.6 hereof), provided
that such Debt shall have not been incurred in contemplation of such person becoming a Restricted
Subsidiary, and (z) all Guaranties of Debt of the Company by any Restricted Subsidiary which has
also guaranteed the Notes and (ii) all Debt of the Company and its Restricted Subsidiaries secured
by Liens other than Debt secured by Liens permitted by subparagraphs (a) through (j), inclusive, of
Section 10.3.



     “property” or “properties” means, unless otherwise specifically limited, real or personal
property of any kind, tangible or intangible, choate or inchoate.



     “Purchasers” means the purchasers of the Notes named in Schedule A hereto.



     “QPAM Exemption” means Prohibited Transaction Class Exemption 84-14 issued by the United
States Department of Labor.



B-6









 





     “Qualified Institutional Buyer” means any Person who is a qualified institutional buyer within
the meaning of such term as set forth in Rule 144(a)(1) under the Securities Act.



     “Receivables Securitization Financing” means a transaction or group of transactions typically
referred to as a securitization in which a Person sells, directly or indirectly through another
Person, its accounts receivable on a non-recourse basis (other than for recourse relating to
certain bad acts or breaches of representations or warranties) in a transaction treated as a legal
true sale to a special purpose bankruptcy remote entity that obtains debt financing or sells
interests in such receivables to finance the purchase price and any further assignment by such
entity in connection therewith.



     “Related Rights” means, with respect to any account receivable that is conveyed pursuant to a
Receivables Securitization Financing (for purposes of this definition, each such account
receivable, is referred to as a “Subject Receivable” , and the Company, together with the
Subsidiaries of the Company which are party to the applicable Receivables Securitization Financing,
are referred to as the “Subject Parties”):




     (a) all of the Subject Parties’ interest in any goods (including returned goods), and
documentation of title evidencing the shipment or storage of any goods (including returned
goods), relating to any sale giving rise to such Subject Receivable,




     (b) all instruments and chattel paper that may evidence such Subject Receivable,




     (c) all other security interests or liens and property subject thereto from time to
time purporting to secure payment of such Subject Receivable, whether pursuant to the
contract or agreement evidencing such Subject Receivable or otherwise, together with all
uniform commercial code financing statements or similar filings related thereto,




     (d) all of the Subject Parties’ rights, interests and claims under the contracts or
agreements evidencing such Subject Receivable and all guaranties, indemnities, insurance and
other agreements or arrangements of whatever character from time to time supporting or
securing payment of such Subject Receivable or otherwise relating to such Subject
Receivable, whether pursuant to the contract or agreement evidencing such Subject Receivable
or otherwise;




     (e) all of the Subject Parties’ rights, interests and claims under the agreements
evidencing the applicable Receivables Securitization Financing, any contract or agreement
evidencing such Subject Receivable and any other agreement or document between the Subject
Party that originated such Subject Receivable and the account debtor with respect to such
Subject Receivable;




     (f) all collections and other proceeds of such Subject Receivable, and all deposit
accounts or securities accounts into which the account debtor with respect to such Subject
Receivable is directed to deposit the payments on such Subject Receivable or into which such
payments are regularly deposited;



B-7









 






     (g) all books and records of any Subject Party relating to such Subject Receivable or
any of the foregoing; and




     (h) all collections and other proceeds and products of, and all monies due or to become
due to any Subject Party with respect to, any of the foregoing that are received by any
Subject Party.



     “Required Holders” means, at any time, the holders of not less than 51% in principal amount of
the Notes of each Series at the time outstanding (exclusive of Notes then owned by the Company or
any of its Affiliates and any Notes held by parties who are contractually required to abstain from
voting with respect to matters affecting the holders of the Notes).



     “Responsible Officer” means any Senior Financial Officer and any other officer of the Company
with responsibility for the administration of the relevant portion of this Agreement.



     “Restricted Subsidiary” means any Subsidiary as to which: (i) at least a majority of the
voting securities are owned by the Company and/or one or more Restricted Subsidiaries and (ii) the
Company has not designated an Unrestricted Subsidiary by notice in writing given to the holders of
the Notes.



     “Securities Act” means the Securities Act of 1933, as amended from time to time.



     “Senior Debt” means, as of the date of any determination thereof, all Consolidated Debt, other
than Subordinated Debt.



     “Senior Financial Officer” means the chief financial officer, principal accounting officer,
treasurer or comptroller of the Company.



     “Series” means any series of Notes issued pursuant to this Agreement or any Supplement hereto.



     “Series 2005A Notes” is defined in Section 1 of this Agreement.



     “Subordinated Debt” means all unsecured Debt of the Company which shall contain or have
applicable thereto subordination provisions providing for the subordination thereof to other Debt
of the Company (including, without limitation, the obligations of the Company under this Agreement,
any Supplement or the Notes).



     “Subsidiary” means, as to any Person, any corporation, association or other business entity in
which such Person or one or more of its Subsidiaries or such Person and one or more of its
Subsidiaries owns sufficient equity or voting interests to enable it or them (as a group)
ordinarily, in the absence of contingencies, to elect a majority of the directors (or Persons
performing similar functions) of such entity, and any partnership or joint venture if more than a
50% interest in the profits or capital thereof is owned by such Person or one or more of its
Subsidiaries or such Person and one or more of its Subsidiaries (unless such partnership can and
does ordinarily take major business actions without the prior approval of such Person or one or



B-8









 







more of its Subsidiaries). Unless the context otherwise clearly requires, any reference to a
“Subsidiary” is a reference to a Subsidiary of the Company.



     “Subsidiary Guarantor” means each Subsidiary which is party to the Subsidiary Guaranty.



     “Subsidiary Guaranty” is defined in Section 2.3.



     “Successor Entity” is defined in Section 10.5.



     “Supplement” is defined in Section 2.2.



     “tranche” means all Notes of a Series having the same maturity, interest rate and schedule for
mandatory prepayments.



     “Tranche A Notes” is defined in Section 1 of this Agreement.



     “Tranche B Notes” is defined in Section 1 of this Agreement.



     “Tranche C Notes” is defined in Section 1 of this Agreement.



     “Unrestricted Subsidiary” means any Subsidiary so designated by the Company in accordance with
the terms and provisions of this Agreement.



     “USA Patriot Act” means United States Public Law 107-56, Uniting and Strengthening America by
Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT ACT) Act of
2001, as amended from time to time, and the rules and regulations promulgated thereunder from time
to time in effect.



B-9









 





Schedules 4.9, 5.4, 5.5, 5.11, 5.15, and 10.3 to Note Purchase Agreement
 Intentionally Omitted







 









 





[Form of Tranche A Note]




Eagle Materials Inc.




5.25% Series 2005A Senior Note, Tranche A, due November 15, 2012




	 	 	 
	No.           [                     ]

	 	[Date]
	$[                                        ]

	 	PPN 26969P A* 9






     For Value Received, the undersigned, Eagle Materials Inc. (herein
called the “Company"), a corporation organized and existing under the laws of the State of
Delaware, hereby promises to pay to [                                                            ] or registered assigns, the principal
sum of [                                        ] Dollars (or so much thereof as shall not have been prepaid) on
November 15, 2012 with interest (computed on the basis of a 360-day year of twelve 30-day months)
(a) on the unpaid balance hereof at the rate of 5.25% per annum from the date hereof, payable
semi-annually, on the 15th day of May and November in each year and at maturity, commencing on May
15, 2006, until the principal hereof shall have become due and payable, and (b) to the extent
permitted by law, at a rate per annum from time to time equal to 7.25%, on any overdue payment of
interest and, during the continuance of an Event of Default, on the unpaid balance hereof and on
any overdue payment of any Make-Whole Amount, payable semiannually as aforesaid (or, at the option
of the registered holder hereof, on demand).



     Payments of principal of, interest on and any Make-Whole Amount with respect to this Note are
to be made in lawful money of the United States of America at the principal office of Bank of
America, N.A. in New York, New York or at such other place as the Company shall have designated by
written notice to the holder of this Note as provided in the Note Purchase Agreement referred to
below.



     This Note is one of a series of Senior Notes (herein called the “Notes") issued pursuant to
the Note Purchase Agreement, dated as of November 15, 2005 (as from time to time amended,
supplemented or modified, the “Note Purchase Agreement"), between the Company and the respective
Purchasers named therein and is entitled to the benefits thereof. Each holder of this Note will be
deemed, by its acceptance hereof, to have (i) agreed to the confidentiality provisions set forth in
Section 20 of the Note Purchase Agreement and (ii) made the representations set forth in Sections
6.2 and 6.3 of the Note Purchase Agreement. Unless otherwise indicated, capitalized terms used in
this Note shall have the respective meanings ascribed to such terms in the Note Purchase Agreement.



     This Note is a registered Note and, as provided in the Note Purchase Agreement, upon surrender
of this Note for registration of transfer, duly endorsed, or accompanied by a written instrument of
transfer duly executed, by the registered holder hereof or such holder’s attorney duly authorized
in writing, a new Note for a like principal amount will be issued to, and registered in the name
of, the transferee. Prior to due presentment for registration of transfer, the Company may treat
the person in whose name this Note is registered as the owner hereof for the purpose of receiving
payment and for all other purposes, and the Company will not be affected by any notice to the
contrary.



Exhibit 1(a)

(to Note Purchase Agreement)




 









 





     The Company will make required prepayments of principal on the date and in the amounts
specified in the Note Agreement. This Note is subject to optional prepayment, in whole or from
time to time in part, at the times and on the terms specified in the Note Purchase Agreement, but
not otherwise.



     Pursuant to the Subsidiary Guaranty Agreement dated as of November 15, 2005 (as amended,
restated or otherwise modified from time to time, the “Subsidiary Guaranty"), certain Subsidiaries
of the Company have absolutely and unconditionally guaranteed payment in full of the principal of,
Make-Whole Amount, if any, and interest on this Note and the performance by the Company of its
obligations contained in the Note Purchase Agreement all as more fully set forth in said Subsidiary
Guaranty.



     If an Event of Default, as defined in the Note Purchase Agreement, occurs and is continuing,
the principal of this Note may be declared or otherwise become due and payable in the manner, at
the price (including any applicable Make-Whole Amount) and with the effect provided in the Note
Purchase Agreement.



     This Note shall be construed and enforced in accordance with, and the rights of the issuer and
holder hereof shall be governed by, the law of the State of New York excluding choice-of-law
principles of the law of such State that would require the application of the laws of a
jurisdiction other than such State.




	 	 	 	 	 	 	 
	 	 	Eagle Materials Inc.
	 
	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	By	 	 	 	 
	 	 	 	 	 
	 

	 	 	 	Name:	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Title:	 	 
	 

	 	 	 	 	 	 





E-1-2









 






[Form of Tranche B Note]




Eagle Materials Inc.




5.38% Series 2005A Senior Note, Tranche B, due November 15, 2015




	 	 	 
	No.            [                    ]

	 	[Date]
	$[                                        ]

	 	PPN 26969P A@ 7






     For Value Received, the undersigned, Eagle Materials Inc. (herein called the
“Company”), a corporation organized and existing under the laws of the State of Delaware, hereby
promises to pay to [                                                            ] or registered assigns, the principal sum of
[                                        ] Dollars (or so much thereof as shall not have been prepaid) on November
15, 2015 with interest (computed on the basis of a 360-day year of twelve 30-day months) (a) on the
unpaid balance hereof at the rate of 5.38% per annum from the date hereof, payable semi-annually,
on the 15th day of May and November in each year and at maturity, commencing on May 15, 2006, until
the principal hereof shall have become due and payable, and (b) to the extent permitted by law, at
a rate per annum from time to time equal to 7.38%, on any overdue payment of interest and, during
the continuance of an Event of Default, on the unpaid balance hereof and on any overdue payment of
any Make-Whole Amount, payable semiannually as aforesaid (or, at the option of the registered
holder hereof, on demand).



     Payments of principal of, interest on and any Make-Whole Amount with respect to this Note are
to be made in lawful money of the United States of America at the principal office of Bank of
America, N.A. in New York, New York or at such other place as the Company shall have designated by
written notice to the holder of this Note as provided in the Note Purchase Agreement referred to
below.



     This
Note is one of a series of Senior Notes (herein called the
“Notes”) issued pursuant to
the Note Purchase Agreement, dated as of November 15, 2005 (as from time to time amended,
supplemented or modified, the “Note Purchase Agreement”), between the Company and the respective
Purchasers named therein and is entitled to the benefits thereof. Each holder of this Note will be
deemed, by its acceptance hereof, to have (i) agreed to the confidentiality provisions set forth in
Section 20 of the Note Purchase Agreement and (ii) made the representations set forth in Sections
6.2 and 6.3 of the Note Purchase Agreement. Unless otherwise indicated, capitalized terms used in
this Note shall have the respective meanings ascribed to such terms in the Note Purchase Agreement.



     This Note is a registered Note and, as provided in the Note Purchase Agreement, upon surrender
of this Note for registration of transfer, duly endorsed, or accompanied by a written instrument of
transfer duly executed, by the registered holder hereof or such holder’s attorney duly authorized
in writing, a new Note for a like principal amount will be issued to, and registered in the name
of, the transferee. Prior to due presentment for registration of transfer, the Company may treat
the person in whose name this Note is registered as the owner hereof for the purpose of receiving
payment and for all other purposes, and the Company will not be affected by any notice to the
contrary.



Exhibit 1(b)

(to Note Purchase Agreement)




 









 





     The Company will make required prepayments of principal on the date and in the amounts
specified in the Note Agreement. This Note is subject to optional prepayment, in whole or from
time to time in part, at the times and on the terms specified in the Note Purchase Agreement, but
not otherwise.



     Pursuant to the Subsidiary Guaranty Agreement dated as of November 15, 2005 (as amended,
restated or otherwise modified from time to time, the
“Subsidiary Guaranty”), certain Subsidiaries
of the Company have absolutely and unconditionally guaranteed payment in full of the principal of,
Make-Whole Amount, if any, and interest on this Note and the performance by the Company of its
obligations contained in the Note Purchase Agreement all as more fully set forth in said Subsidiary
Guaranty.



     If an Event of Default, as defined in the Note Purchase Agreement, occurs and is continuing,
the principal of this Note may be declared or otherwise become due and payable in the manner, at
the price (including any applicable Make-Whole Amount) and with the effect provided in the Note
Purchase Agreement.



     This Note shall be construed and enforced in accordance with, and the rights of the issuer and
holder hereof shall be governed by, the law of the State of New York excluding choice-of-law
principles of the law of such State that would require the application of the laws of a
jurisdiction other than such State.



	 	 	 	 	 	 	 
	 	 	Eagle Materials Inc.
	 
	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	By	 	 	 	 
	 	 	 	 	 
	 

	 	 	 	Name:	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Title:	 	 
	 

	 	 	 	 	 	 





E-2-2





 










 






[Form of Tranche C Note]




Eagle Materials Inc.




5.48% Series 2005A Senior Note, Tranche C, due November 15, 2017




			
	No.               [                    ]

$[                                        ]
	 	[Date]

PPN 26969P A# 5






     For Value Received, the undersigned, Eagle Materials Inc. (herein called the
“Company”), a corporation organized and existing under the laws of the State of Delaware, hereby
promises to pay to [                                        ] or registered assigns, the principal sum of
[                    ] Dollars (or so much thereof as shall not have been prepaid) on November
15, 2017 with interest (computed on the basis of a 360-day year of twelve 30-day months) (a) on the
unpaid balance hereof at the rate of 5.48% per annum from the date hereof, payable semi-annually,
on the 15th day of May and November in each year and at maturity, commencing on May 15, 2006, until
the principal hereof shall have become due and payable, and (b) to the extent permitted by law, at
a rate per annum from time to time equal to 7.48%, on any overdue payment of interest and, during
the continuance of an Event of Default, on the unpaid balance hereof and on any overdue payment of
any Make-Whole Amount, payable semiannually as aforesaid (or, at the option of the registered
holder hereof, on demand).



     Payments of principal of, interest on and any Make-Whole Amount with respect to this Note are
to be made in lawful money of the United States of America at the principal office of Bank of
America, N.A. in New York, New York or at such other place as the Company shall have designated by
written notice to the holder of this Note as provided in the Note Purchase Agreement referred to
below.



     This Note is one of a series of Senior Notes (herein called the “Notes”) issued pursuant to
the Note Purchase Agreement, dated as of November 15, 2005 (as from time to time amended,
supplemented or modified, the “Note Purchase Agreement”), between the Company and the respective
Purchasers named therein and is entitled to the benefits thereof. Each holder of this Note will be
deemed, by its acceptance hereof, to have (i) agreed to the confidentiality provisions set forth in
Section 20 of the Note Purchase Agreement and (ii) made the representations set forth in Sections
6.2 and 6.3 of the Note Purchase Agreement. Unless otherwise indicated, capitalized terms used in
this Note shall have the respective meanings ascribed to such terms in the Note Purchase Agreement.



     This Note is a registered Note and, as provided in the Note Purchase Agreement, upon surrender
of this Note for registration of transfer, duly endorsed, or accompanied by a written instrument of
transfer duly executed, by the registered holder hereof or such holder’s attorney duly authorized
in writing, a new Note for a like principal amount will be issued to, and registered in the name
of, the transferee. Prior to due presentment for registration of transfer, the Company may treat
the person in whose name this Note is registered as the owner hereof for the



Exhibit 1(c)

(to Note Purchase Agreement)




 









 




purpose of receiving payment and for all other purposes, and the Company will not be affected by any
notice to the contrary.




     The Company will make required prepayments of principal on the date and in the amounts
specified in the Note Agreement. This Note is subject to optional prepayment, in whole or from
time to time in part, at the times and on the terms specified in the Note Purchase Agreement, but
not otherwise.



     Pursuant to the Subsidiary Guaranty Agreement dated as of November 15, 2005 (as amended,
restated or otherwise modified from time to time, the “Subsidiary Guaranty”), certain Subsidiaries
of the Company have absolutely and unconditionally guaranteed payment in full of the principal of,
Make-Whole Amount, if any, and interest on this Note and the performance by the Company of its
obligations contained in the Note Purchase Agreement all as more fully set forth in said Subsidiary
Guaranty.



     If an Event of Default, as defined in the Note Purchase Agreement, occurs and is continuing,
the principal of this Note may be declared or otherwise become due and payable in the manner, at
the price (including any applicable Make-Whole Amount) and with the effect provided in the Note
Purchase Agreement.



     This Note shall be construed and enforced in accordance with, and the rights of the issuer and
holder hereof shall be governed by, the law of the State of New York excluding choice-of-law
principles of the law of such State that would require the application of the laws of a
jurisdiction other than such State.



	 	 	 	 	 	 	 	 	 
	 	 	Eagle Materials Inc.	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 	 	 
	 

	 	 	 	 	 	 	 	 
	 

	 	 	 	Title:	 	 	 	 
	 

	 	 	 	 	 	 	 	 





E-4-2









 





Form of Subsidiary Guaranty




Subsidiary Guaranty — Eagle Materials Inc.



 





Subsidiary Guaranty Agreement




Dated as of November 15, 2005




from




The Subsidiary Guarantors Named Herein




for the benefit of




The Holders of the Notes




Re:




$40,000,000 5.25% Series 2005A Senior Notes, Tranche A

due November 15, 2012




$80,000,000 5.38% Series 2005A Senior Notes, Tranche B

due November 15, 2015




$80,000,000 5.48% Series 2005A Senior Notes, Tranche C

due November 15, 2017




of 




Eagle Materials Inc.




Exhibit 2.3

(to Note Purchase Agreement)





 









 





Table of Contents




	 	 	 	 	 	 	 
	Section	 	Heading	 	Page
	Section 1.

	 	Guaranty
	 	 	2	 
	 
	 	 	 	 	 	 
	Section 2.

	 	Representations and Warranties
	 	 	3	 
	 
	 	 	 	 	 	 
	Section 3.

	 	Subsidiary Guarantor’s Obligations Unconditional
	 	 	5	 
	 
	 	 	 	 	 	 
	Section 4.

	 	Full Recourse Obligations; Pari Passu Ranking
	 	 	10	 
	 
	 	 	 	 	 	 
	Section 5.

	 	Waiver
	 	 	11	 
	 
	 	 	 	 	 	 
	Section 6.

	 	Waiver of Subrogation
	 	 	12	 
	 
	 	 	 	 	 	 
	Section 7.

	 	Subordination
	 	 	12	 
	 
	 	 	 	 	 	 
	Section 8.

	 	Effect of Bankruptcy Proceedings, Etc
	 	 	13	 
	 
	 	 	 	 	 	 
	Section 9.

	 	Term of Guaranty
	 	 	13	 
	 
	 	 	 	 	 	 
	Section 10.

	 	Contribution
	 	 	14	 
	 
	 	 	 	 	 	 
	Section 11.

	 	Limitation of Liability
	 	 	14	 
	 
	 	 	 	 	 	 
	Section 12.

	 	Negative Pledge
	 	 	15	 
	 
	 	 	 	 	 	 
	Section 13.

	 	Supplemental Agreement
	 	 	15	 
	 
	 	 	 	 	 	 
	Section 14.

	 	Definitions and Terms Generally
	 	 	15	 
	 
	 	 	 	 	 	 
	Section 15.

	 	Notices
	 	 	16	 
	 
	 	 	 	 	 	 
	Section 16.

	 	Amendments, Etc
	 	 	17	 
	 
	 	 	 	 	 	 
	Section 17.

	 	Consent to Jurisdiction; Service of Process
	 	 	17	 






- i - 









 






	 	 	 	 	 	 	 
	Section	 	Heading	 	Page
	Section 18.

	 	Waiver of Jury Trial
	 	 	18	 
	 
	 	 	 	 	 	 
	Section 19.

	 	Survival
	 	 	18	 
	 
	 	 	 	 	 	 
	Section 20.

	 	Severability
	 	 	18	 
	 
	 	 	 	 	 	 
	Section 21.

	 	Successors and Assigns
	 	 	19	 
	 
	 	 	 	 	 	 
	Section 22.

	 	Table of Contents; Headings
	 	 	19	 
	 
	 	 	 	 	 	 
	Section 23.

	 	Counterparts
	 	 	19	 
	 
	 	 	 	 	 	 
	Section 24.

	 	Governing Law
	 	 	19	 
	 
	 	 	 	 	 	 
	Section 25.

	 	Release
	 	 	19	 
	 
	 	 	 	 	 	 
	Section 26.

	 	Covenant Compliance
	 	 	19	 






- ii - 









 





     Subsidiary Guaranty Agreement, dated as of November 15, 2005 (the “Guaranty”), from
each of:




	 	(i)	 	American Gypsum Company,
	 
	 	(ii)	 	American Gypsum Marketing Company,
	 
	 	(iii)	 	CCP Cement Company,
	 
	 	(iv)	 	CCP Concrete/Aggregates LLC,
	 
	 	(v)	 	CCP Gypsum Company,
	 
	 	(vi)	 	CCP Land Company,
	 
	 	(vii)	 	Centex Cement Corporation,
	 
	 	(viii)	 	Hollis & Eastern Railroad Company LLC,
	 
	 	(ix)	 	Mathews Readymix LLC,
	 
	 	(x)	 	M&W Drywall Supply Company,
	 
	 	(xi)	 	Mountain Cement Company,
	 
	 	(xii)	 	Nevada Cement Company,
	 
	 	(xiii)	 	Republic Paperboard Company LLC,
	 
	 	(xiv)	 	Texas Cement Company,
	 
	 	(xv)	 	Western Aggregates LLC,
	 
	 	(xvi)	 	Western Cement Company of California,
	 
	 	(xvii)	 	Centex Materials LLC,
	 
	 	(xviii)	 	TLCC GP LLC,
	 
	 	(xix)	 	TLCC LP LLC, 
	 
	 	(xx)	 	AG South Carolina LLC,
	 
	 	(xxi)	 	Illinois Cement Company LLC, and
	 
	 	(xxii)	 	such Subsidiaries as shall become parties hereto in accordance with Section
13 hereof (each a “Subsidiary Guarantor” and collectively the “Subsidiary
Guarantors”),




for the benefit of the holders from time to time of the Notes (as defined below) (the “Holders”).
Capitalized terms used herein are defined in Section 14 hereof or the Note Purchase Agreement
referred to below.




     Whereas, Eagle Materials Inc., a Delaware corporation (the “Company”), will authorize
the issue and sale of (i) $40,000,000 5.25% Series 2005A Senior Notes, Tranche A, due November 15,
2012 (the “Tranche A Notes”), (ii) $80,000,000 5.38% Series 2005A Senior Notes, Tranche B, due
November 15, 2015 (the “Tranche B Notes”) and (iii) $80,000,000 5.48% Series 2005A Senior Notes,
Tranche C, due November 15, 2017 (the “Tranche C Notes” and, together with the Tranche A Notes and
the Tranche B Notes, the “Series 2005A Notes”), pursuant to a Note Purchase Agreement, dated as of
the date hereof (as amended, modified or supplemented from time to time, the “Note Purchase
Agreement”) among the Company and the purchasers named therein.



     Whereas, the Company is authorized to issue Additional Notes (as such term is defined
in the Note Purchase Agreement) of one or more separate series from time to time in an



 









 







aggregate principal amount not to exceed $500,000,000 pursuant to Section 2.2 of the Note Purchase
Agreement.



     Whereas, the Additional Notes together with the Series 2005A Notes are collectively
referred to as the “Notes”.



     Whereas, each of the Subsidiary Guarantors is a Subsidiary of the Company.



     Whereas, the Company has agreed that certain of its Subsidiaries will guarantee its
obligations under the Notes and the Note Purchase Agreement.



     Whereas, the Subsidiary Guarantors each acknowledge that they will derive substantial
benefits from the issuance of the Notes.



     Now, Therefore, in consideration of the premises and to induce the Holders to
purchase the Notes, each of the Subsidiary Guarantors, intending to be legally bound, hereby agrees
for the benefit of the Holders, as follows:



Section 1.      Guaranty. 




     Each Subsidiary Guarantor with all other Subsidiary Guarantors, hereby absolutely,
unconditionally and irrevocably guarantees, jointly and severally, as a primary obligor and not
merely as a surety, to each Holder and its successors and assigns, the full and punctual payment
and performance when due, whether at stated maturity, by acceleration or otherwise, of the
principal of and Make-Whole Amount and interest on (including, without limitation, interest,
whether or not an allowable claim, accruing after the date of filing of any petition in bankruptcy,
or the commencement of any bankruptcy, insolvency or similar proceeding relating to the Company)
the Notes and all other amounts under the Note Purchase Agreement and all other obligations,
agreements and covenants of the Company now or hereafter existing under the Note Purchase Agreement
whether for principal, Make-Whole Amount, interest (including interest accruing or becoming owing
both prior to and subsequent to the commencement of any proceeding against or with respect to the
Company under any chapter of Title 11 of the United States Code), indemnification payments,
expenses (including reasonable attorneys’ fees and expenses) or otherwise, and all reasonable costs
and expenses, if any, incurred by any Holder in connection with enforcing any rights under this
Guaranty (all such obligations being the “Guaranteed Obligations”), and agrees to pay any and all
reasonable expenses incurred by each Holder in enforcing this Guaranty; provided that,
notwithstanding anything contained herein or in the Note Purchase Agreement to the contrary, the
maximum liability of each Subsidiary Guarantor hereunder and under the Note Purchase Agreement
shall in no event exceed such Guarantor’s Maximum Guaranteed Amount, and provided further, each
Subsidiary Guarantor shall be unconditionally required to pay all amounts demanded of it hereunder
prior to any determination of such Maximum Guaranteed Amount and the recipient of such payment, if
so required by a final non-appealable order of a court of competent jurisdiction, shall then be
liable for the refund of any excess amounts. If any such rebate or refund is ever required, all
other Subsidiary Guarantors (and the Company) shall be fully liable for the repayment thereof to
the maximum extent allowed by applicable law. This Guaranty is an absolute, unconditional, present



- 2 -









 







and continuing guaranty of payment and not of collectibility and is in no way conditioned upon any attempt to collect
from the Company or any other action, occurrence or circumstance whatsoever. Each Subsidiary
Guarantor agrees that the Guaranteed Obligations may at any time and from to time exceed the
Maximum Guaranteed Amount of such Subsidiary Guarantor without impairing this Guaranty or affecting
the rights and remedies of the Holders hereunder.



     Notwithstanding any stay, injunction or other prohibition preventing such action against the
Company, if for any reason whatsoever the Company shall fail or be unable duly, punctually and
fully to perform and (in the case of the payment of Guaranteed Obligations) pay such amounts as and
when the same shall become due and (in the case of the payment of Guaranteed Obligations) payable
or to perform or comply with any other Guaranteed Obligation, each Subsidiary Guarantor will
forthwith (in the case of the payment of Guaranteed Obligations) pay or cause to be paid such
amounts to the Holders, in lawful money of the United States of America, at the place specified in
the Note Purchase Agreement, or perform or comply with such Guaranteed Obligations or cause such
Guaranteed Obligations to be performed or complied with, (in the case of the payment of Guaranteed
Obligations) together with interest (in the amounts and to the extent required under such Notes) on
any amount due and owing.



Section 2.      Representations and Warranties. 




     Each Subsidiary Guarantor hereby represents and warrants as follows:



     (a) All representations and warranties contained in the Note Purchase Agreement that relate to
such Subsidiary Guarantor are true and correct in all respects and are incorporated by reference
with the same force and effect as though set forth herein in full.



     (b) Such Subsidiary Guarantor acknowledges that any default in the due observance or
performance by such Subsidiary Guarantor of any covenant, condition or agreement contained herein
(if, after the running of any applicable notice and opportunity to cure periods provided in the
Note Purchase Agreement, such default or event of default remains uncured) shall constitute an
Event of Default.



     (c) There are no conditions precedent to the effectiveness of this Guaranty that have not been
satisfied or expressly waived.



     (d) Such Subsidiary Guarantor has, independently and without reliance upon the Holders and
based on such documents and information as it has deemed appropriate, made its own credit analysis
and decision to enter into this Guaranty. Such Subsidiary Guarantor has investigated fully the
benefits and advantages which will be derived by it from execution of this Guaranty, and the Board
of Directors (or equivalent governing body) of such Subsidiary Guarantor has decided that a direct
and/or an indirect benefit will accrue to such Subsidiary Guarantor by reason of the execution of
this Guaranty.



     (e) (i) This Guaranty is not given with actual intent to hinder, delay or defraud any Person
to which such Subsidiary Guarantor is or will become, on or after the date hereof,
indebted; (ii) such Subsidiary Guarantor has received at least a reasonably equivalent value in



- 3 -









 







exchange for the giving of this Guaranty; (iii) such Subsidiary Guarantor is not insolvent on the
date hereof and will not become insolvent as a result of the giving of this Guaranty; (iv) such
Subsidiary Guarantor is not engaged in a business or transaction, nor is about to engage in a
business or transaction, for which any property remaining with such Subsidiary Guarantor
constitutes an unreasonably small amount of capital; and (v) such Subsidiary Guarantor does not
intend to incur debts that will be beyond such Subsidiary Guarantor’s ability to pay as such debts
mature.



     (f) Each Subsidiary Guarantor is a corporation or other legal entity duly organized and
validly existing under the laws of its state of organization, and has the requisite power,
authority and legal right under the laws of its state of organization to conduct its business as
presently conducted and to execute, deliver and perform its obligations under this Guaranty.



     (g) The execution, delivery and performance of this Guaranty have been duly authorized by all
necessary action, corporate or otherwise, on the part of each Subsidiary Guarantor, and does not
require any consent or approval of, or the giving of notice to, or the taking of any other action
in respect of, any stockholder or trustee or holder of any equity, indebtedness or obligations of
such Subsidiary Guarantor. This Guaranty constitutes a legal, valid and binding obligation of each
Subsidiary Guarantor, enforceable against such Subsidiary Guarantor in accordance with its terms,
except that such enforceability is subject to any limitations arising from bankruptcy, insolvency,
liquidation, moratorium, reorganization and other similar laws of general application relating to
or affecting the rights of creditors or pledgees and to general principles of equity (regardless of
whether such enforceability is considered in a proceeding in equity or at law).



     (h) The execution, delivery and performance of this Guaranty does not and will not conflict
with or result in any violation of or default under any provision of the Articles or Certificate of
Incorporation or Formation or by-laws or partnership agreement or operating agreement or other
organizational documents, as the case may be, of any Subsidiary Guarantor, or any indenture,
mortgage, deed of trust, instrument, law, rule or regulation binding on any Subsidiary Guarantor or
any Subsidiary Guarantor’s assets or property or to which a Subsidiary Guarantor is a party.



     (i) The execution, delivery and performance of this Guaranty does not and will not result in
violation of any judgment or order applicable to any Subsidiary Guarantor or result in the creation
or imposition of any Lien on any of the properties or revenues of any Subsidiary Guarantor pursuant
to any requirement of law or any indenture, mortgage, deed of trust or other instrument to which
such Subsidiary Guarantor is a party or pursuant to which such Subsidiary Guarantor or any of its
assets or property is bound.



     (j) The execution, delivery and performance of this Guaranty do not and will not conflict with
and do not and will not require any consent, approval or authorization of, or registration or
filing with, any governmental authority or agency of the state of organization of any Subsidiary
Guarantor or of the United States or any State.



- 4 -









 





     (k) There are no pending or, to the knowledge of any Subsidiary Guarantor, threatened actions
or proceedings against or affecting such Subsidiary Guarantor or any of its properties by or before
any court or administrative agency or arbiter that would adversely affect the ability of such
Subsidiary Guarantor to perform its obligations hereunder or call into question the validity or
enforceability of this Guaranty.



     (l) Each Subsidiary Guarantor’s obligations under this Guaranty are at least pari passu in
right of payment with all other senior unsecured Debt (actual or contingent) of such Subsidiary
Guarantor, including, without limitation, all senior unsecured Debt of such Subsidiary Guarantor
described in Schedule 5.15 of the Note Purchase Agreement.



     (m) No Subsidiary Guarantor is in breach of or default under or with respect to any
instrument, document or agreement binding upon such Subsidiary Guarantor which breach or default
would reasonably be expected to have a Material Adverse Effect. Each Subsidiary Guarantor is in
compliance with all applicable requirements of law except such non-compliance as would not
reasonably be expected to have a Material Adverse Effect.



     (n) The execution, delivery and performance by each Subsidiary Guarantor of this Guaranty will
not render such Subsidiary Guarantor insolvent, nor is it being made in contemplation of such
Subsidiary Guarantor’s insolvency, and the Subsidiary Guarantor does not have an unreasonably small
capital.



Section 3.      Subsidiary Guarantor’s Obligations Unconditional.




     (a) This Guaranty shall constitute a guarantee of payment, performance and compliance and not
of collection, and each Subsidiary Guarantor specifically agrees that it shall not be necessary,
and that such Subsidiary Guarantor shall not be entitled to require, before or as a condition of
enforcing the liability of such Subsidiary Guarantor under this Guaranty or requiring payment or
performance of the Guaranteed Obligations by any Subsidiary Guarantor hereunder, or at any time
thereafter, that any Holder: (a) file suit or proceed to obtain or assert a claim for personal
judgment against the Company or any other Person that may be liable for or with respect to any
Guaranteed Obligation; (b) make any other effort to obtain payment or performance of any Guaranteed
Obligation from the Company or any other Person that may be liable for or with respect to such
Guaranteed Obligation, except for the making of the demands, when appropriate, described in Section
1; (c) foreclose against, or seek to realize upon security now or hereafter existing for such
Guaranteed Obligations; (d) except to the extent set forth in Section 1, exercise or assert any
other right or remedy to which such Holder is or may be entitled in connection with any Guaranteed
Obligation or any security or other guaranty therefor; or (e) assert or file any claim against the
assets or property of the Company or any other Person liable for any Guaranteed Obligation. Each
Subsidiary Guarantor agrees that this Guaranty shall be continuing, and that the Guaranteed
Obligations will be paid and performed in accordance with their terms and the terms of this
Guaranty, and are the primary, absolute and unconditional obligations of such Subsidiary Guarantor,
irrespective of the value, genuineness, validity, legality, regularity or enforceability or lack
thereof of any part of the Guaranteed Obligations or any agreement or instrument relating to the
Guaranteed Obligations or this Guaranty, or the existence
of any indemnities with respect to the existence of any other guarantee of or security



- 5 -









 







for any
of the Guaranteed Obligations, or any substitution, release or exchange of any other guarantee of
or security for any of the Guaranteed Obligations, and, to the fullest extent permitted by
applicable law, irrespective of any other circumstance whatsoever that might otherwise constitute a
legal or equitable discharge or defense of a surety or guarantor, it being the intent of this
Section 3 that the obligations of each Subsidiary Guarantor hereunder shall be irrevocable,
primary, absolute and unconditional under any and all circumstances.



     (b) Each Subsidiary Guarantor hereby expressly waives notice of acceptance of and reliance
upon this Guaranty, diligence, presentment, demand of payment or performance, protest and all other
notices (except as otherwise provided for in Section 1) whatsoever, any requirement that the
Holders exhaust any right, power or remedy or proceed against the Company or against any other
Person under any other guarantee of, or security for, or any other agreement, regarding any of the
Guaranteed Obligations. Each Subsidiary Guarantor further agrees that, subject solely to the
requirement of making demands under Section 1, the occurrence of any event or other circumstance
that might otherwise vary the risk of the Company or such Subsidiary Guarantor or constitute a
defense (legal or equitable) available to, or a discharge of, or a counterclaim or right of set-off
by, the Company or such Subsidiary Guarantor (other than the full and indefeasible due payment and
performance of the Guaranteed Obligations), shall not affect the liability of any Subsidiary
Guarantor hereunder.



     (c) The obligations of each Subsidiary Guarantor under this Guaranty are not subject to any
counterclaim, set-off, deduction, diminution, abatement, recoupment, suspension, deferment or
defense based upon any claim such Subsidiary Guarantor or any other Person may have against the
Company, any Holder or any other Person, and shall remain in full force and effect without regard
to, and shall not be released, discharged or in any way affected by, any circumstances or condition
whatsoever (whether or not such Subsidiary Guarantor or the Company shall have any knowledge or
notice thereof), including:




     (i) any renewal, extension, modification, increase, decrease, alteration or
rearrangement of all or any part of the Guaranteed Obligations or any instrument executed in
connection therewith, or any contract or understanding with the Company, the Holders, or any
of them, or any other Person, pertaining to the Guaranteed Obligations;




     (ii) any adjustment, indulgence, forbearance or compromise that might be granted or
given by any Holder to the Company or any other Person liable on the Guaranteed Obligations,
or the failure of any Holder to assert any claim or demand or to exercise any right or
remedy against the Company or any other Person under the provisions of the Note Purchase
Agreement, the Notes or otherwise; or any rescission, waiver, amendment or modification of,
or any release from any of the terms or provisions of, the Note Purchase Agreement, the
Notes, any guarantee or any other agreement;




     (iii) the insolvency, bankruptcy arrangement, adjustment, composition, liquidation,
disability, dissolution or lack of power of the Company or any other Person at any time
liable for the payment of all or part of the Guaranteed Obligations; or any dissolution of
the Company or any other such



- 6 -









 







Person, or any change, restructuring or
termination of the organizational structure or existence of the Company or any other such
Person, or any sale, lease or transfer of any or all of the assets or property of the
Company or any other such Person, or any change in the shareholders, partners, or members of
the Company or any other such Person; or any default, failure or delay, willful or
otherwise, in the performance of the Guaranteed Obligations;




     (iv) the invalidity, illegality or unenforceability of all or any part of the
Guaranteed Obligations, or any document or agreement executed in connection with the
Guaranteed Obligations, for any reason whatsoever, including the fact that the Guaranteed
Obligations, or any part thereof, exceed the amount permitted by law, the act of creating
the Guaranteed Obligations or any part is ultra vires, the officers or representatives
executing the documents or otherwise creating the Guaranteed Obligations acted in excess of
their authority, the Guaranteed Obligations violate applicable usury laws, the Company or
any other Person has valid defenses, claims or offsets (whether at law, in equity or by
agreement) which render the Guaranteed Obligations wholly or partially uncollectible from
the Company or any other Person, the creation, performance or repayment of the Guaranteed
Obligations (or the execution, delivery and performance of any document or instrument
representing part of the Guaranteed Obligations or executed in connection with the
Guaranteed Obligations or given to secure the repayment of the Guaranteed Obligations) is
illegal, uncollectible, legally impossible or unenforceable, or the documents or instruments
pertaining to the Guaranteed Obligations have been forged or otherwise are irregular or not
genuine or authentic;




     (v) any full or partial release of the liability of the Company on the Guaranteed
Obligations or any part thereof, of any co-guarantors, or of any other Person now or
hereafter liable, whether directly or indirectly, jointly, severally, or jointly and
severally, to pay, perform, guarantee or assure the payment of the Guaranteed Obligations or
any part thereof, it being recognized, acknowledged and agreed by each Subsidiary Guarantor
that such Subsidiary Guarantor may be required to pay the Guaranteed Obligations in full
without assistance or support of any other Person, and such Subsidiary Guarantor has not
been induced to enter into this Guaranty on the basis of a contemplation, belief,
understanding or agreement that any parties other than the Company will be liable to perform
the Guaranteed Obligations, or that the Holders will look to other parties to perform the
Guaranteed Obligations;




     (vi) the taking or accepting of any other security, collateral or guaranty, or other
assurance of payment, for all or any part of the Guaranteed Obligations;




     (vii) any release, surrender, exchange, subordination, deterioration, waste, loss or
impairment (including negligent, unreasonable or unjustifiable impairment) of any
collateral, property or security, at any time existing in connection with, or assuring or
securing payment of, all or any part of the Guaranteed Obligations;




     (viii) the failure of any Holder or any other Person to exercise diligence or
reasonable care in the preservation, protection, enforcement, sale or other handling or
treatment of all or any part of such collateral, property or security;



- 7 -









 






     (ix) the fact that any collateral, security, security interest or Lien contemplated or
intended to be given, created or granted as security for the repayment of the Guaranteed
Obligations shall not be properly perfected or created, or shall prove to be unenforceable
or subordinate to any other security interest or Lien, it being recognized and agreed by
each Subsidiary Guarantor that such Subsidiary Guarantor is not entering into this Guaranty
in reliance on, or in contemplation of the benefits of, the validity, enforceability,
collectibility or value of any of the collateral;




     (x) any payment by the Company to any Holder being held to constitute a preference
under any Fraudulent Conveyance Law, or for any reason any Holder being required to refund
such payment or pay such amount to the Company or someone else;




     (xi) any other action taken or omitted to be taken with respect to the Guaranteed
Obligations, or the security and collateral therefor, whether or not such action or omission
prejudices such Subsidiary Guarantor or increases the likelihood that such Subsidiary
Guarantor will be required to pay the Guaranteed Obligations pursuant to the terms hereof,
it being the unambiguous and unequivocal intention of such Subsidiary Guarantor that it
shall be obligated to pay the Guaranteed Obligations when due, notwithstanding any
occurrence, circumstance, event, action or omission whatsoever, whether or not contemplated,
and whether or not otherwise or particularly described herein, except for the full and final
indefeasible payment and satisfaction of the Guaranteed Obligations in cash;




     (xii) the fact that all or any of the Guaranteed Obligations cease to exist by
operation of law, including by way of a discharge, limitation or tolling thereof under
applicable bankruptcy laws;




     (xiii) any other circumstance (including any statute of limitations) that might in any
manner or to any extent otherwise constitute a defense available to, vary the risk of, or
operate as a discharge of, the Company or any Person as a matter of law or equity;




     (xiv) any change in the ownership of any shares of capital stock (or other equity
interests) of the Company, or any change in the relationship between the Company and such
Subsidiary Guarantor or any termination of any such relationship;




     (xv) any default, failure or delay, willful or otherwise, in the performance by the
Company, any Subsidiary Guarantor or any other Person of any obligations of any kind or
character whatsoever under the Note Purchase Agreement or any other agreement;




     (xvi) any merger or consolidation of the Company or any Subsidiary Guarantor or any
other Person into or with any other Person or any sale, lease, transfer or other disposition
of any of the assets or property of the Company, any Subsidiary Guarantor or any other
Person to any other Person, or any change in the ownership of any shares or partnership
interests or other equity interests of the Company, any Subsidiary Guarantor or any other
Person;



- 8 -









 






     (xvii) in respect of the Company, any Subsidiary Guarantor or any other Person, any
change of circumstances, whether or not foreseen or foreseeable, whether or not imputable to
the Company, any Subsidiary Guarantor or any other Person, or other impossibility of
performance through fire, explosion, accident, labor disturbance, floods, droughts,
embargoes, wars (whether or not declared), civil commotion, acts of God or the public enemy,
delays or failure of suppliers or carriers, inability to obtain materials, action of any
Federal or state regulatory body or agency, change of law or any other causes affecting
performance, or any other force majeure, whether or not beyond the control of the Company,
any Subsidiary Guarantor or any other Person and whether or not of the kind hereinbefore
specified; or




     (xviii) any other occurrence, circumstance, or event whatsoever, whether similar or
dissimilar to the foregoing, whether foreseen or unforeseen, and any other circumstance
which might otherwise constitute a legal or equitable defense or discharge of the
liabilities of a guarantor or surety or which might otherwise limit recourse against such
Subsidiary Guarantor;


provided that the specific enumeration of the above-mentioned acts, failures or omissions shall not
be deemed to exclude any other acts, failures or omissions, though not specifically mentioned
above, it being the purpose and intent of this Guaranty and the parties hereto that the obligations
of each Subsidiary Guarantor shall be absolute and unconditional and shall not be discharged,
impaired or varied except by the payment and performance of all obligations of the Company under
the Note Purchase Agreement and the Notes in accordance with their respective terms as each may be
amended or modified from time to time. Without limiting the foregoing, it is understood that
repeated and successive demands may be made and recoveries may be had hereunder as and when, from
time to time, the Company or any Subsidiary Guarantor shall default under or in respect of the
terms of the Note Purchase Agreement and that notwithstanding recovery hereunder for or in respect
of any given default or defaults by the Company or any Subsidiary Guarantor under the Note Purchase
Agreement, this Guaranty shall remain in full force and effect and shall apply to each and every
subsequent default. All waivers herein contained shall be without prejudice to the Holders at
their respective options to proceed against the Company, any Subsidiary Guarantor or other Person,
whether by separate action or by joinder.




     (d) Each Subsidiary Guarantor hereby consents and agrees that any Holder or Holders from time
to time, with or without any further notice to or assent from any other Subsidiary Guarantor may,
without in any manner affecting the liability of any Subsidiary Guarantor under this Guaranty, and
upon such terms and conditions as any such Holder or Holders may deem advisable:




     (i) extend in whole or in part (by renewal or otherwise), modify, change, compromise,
release or extend the duration of the time for the performance or payment of any debt,
liability or obligation of the Company or any Subsidiary Guarantor or of any other Person
secondarily or otherwise liable for any debt, liability or obligations of the Company on the
Note Purchase Agreement or the Notes, or waive any Default or Event



- 9 -









 







of Default with respect
thereto, or waive, modify, amend or change any provision of any other agreement or waive
this Guaranty; or




     (ii) sell, release, surrender, modify, impair, exchange or substitute any and all
property, of any nature and from whomsoever received, held by, or for the benefit of, any
such Holder as direct or indirect security for the payment or performance of any debt,
liability or obligation of the Company, any Subsidiary Guarantor or of any other Person
secondarily or otherwise liable for any debt, liability or obligation of the Company on the
Note Purchase Agreement or the Notes; or




     (iii) settle, adjust or compromise any claim of the Company or any Subsidiary Guarantor
against any other Person secondarily or otherwise liable for any debt, liability or
obligation of the Company on the Note Purchase Agreement or the Notes; or




     (iv) purchase Additional Notes form time to time from the Company pursuant to the terms
and provisions of the Note Purchase Agreement.


Each Subsidiary Guarantor hereby ratifies and confirms any such extension, renewal, change, sale,
release, waiver, surrender, exchange, modification, amendment, impairment, substitution,
settlement, adjustment, compromise or purchase of Additional Notes and that the same shall be
binding upon it, and hereby waives, to the fullest extent permitted by law, any and all defenses,
counterclaims or offsets which it might or could have by reason thereof, it being understood that
such Subsidiary Guarantor shall at all times be bound by this Guaranty and remain liable hereunder.




     (e) All rights of any Holder may be transferred or assigned at any time in accordance with the
Note Purchase Agreement and shall be considered to be transferred or assigned at any time or from
time to time upon the transfer of such Note in accordance with the Note Purchase Agreement without
the consent of or notice to the Subsidiary Guarantors under this Guaranty.



     (f) No Holder shall be under any obligation: (i) to marshal any assets in favor of the
Subsidiary Guarantors or in payment of any or all of the liabilities of the Company or any
Subsidiary Guarantor under or in respect of the Notes or the obligations of the Company and the
Subsidiary Guarantors under the Note Purchase Agreement or (ii) to pursue any other remedy that the
Subsidiary Guarantors may or may not be able to pursue themselves and that may lighten the
Subsidiary Guarantors’ burden, any right to which each Subsidiary Guarantor hereby expressly
waives.



Section 4.      Full Recourse Obligations; Pari Passu Ranking.




     Subject to the Maximum Guaranteed Amount specified above, the obligations of each Subsidiary
Guarantor set forth herein constitute the full recourse obligations of such Subsidiary Guarantor
enforceable against it to the full extent of all its assets and properties.



     The respective obligations under this Guaranty of the Subsidiary Guarantors in respect of the
Notes, and all other obligations of the Subsidiary Guarantors hereunder, are and at all times




- 10 -










 





shall remain direct and unsecured obligations of the Subsidiary Guarantors ranking pari passu as against
the assets of the Subsidiary Guarantors with all obligations of the Subsidiary Guarantors hereunder
in respect of all other Notes from time to time issued and outstanding under the Note Purchase
Agreement without any preference among themselves and pari passu with the Subsidiary Guarantors’
Guaranty in respect of the Debt outstanding under the Bank Credit Agreement and all other present
and future unsecured Debt (actual or contingent) of the Subsidiary Guarantors which is not
expressed to be subordinate or junior in rank to any other unsecured Debt of the Subsidiary
Guarantors.




Section 5. Waiver.




     Each Subsidiary Guarantor unconditionally waives, to the extent permitted by applicable law:




     (a) notice of any of the matters referred to in Section 3;




     (b) notice to such Subsidiary Guarantor of the incurrence of any of the Guaranteed
Obligations, notice to such Subsidiary Guarantor of any breach or default by the Company or
such Subsidiary Guarantor with respect to any of the Guaranteed Obligations or any other
notice that may be required, by statute, rule of law or otherwise, to preserve any rights of
any Holder against such Subsidiary Guarantor;




     (c) presentment to the Company or such Subsidiary Guarantor or of payment from the
Company or such Subsidiary Guarantor with respect to any Note or other Guaranteed Obligation
or protest for nonpayment or dishonor;




     (d) any right to the enforcement, assertion, exercise or exhaustion by any Holder of
any right, power, privilege or remedy conferred in any Note, the Note Purchase Agreement or
otherwise;




     (e) any requirement of diligence on the part of any Holder;




     (f) any requirement to mitigate the damages resulting from any default under the Notes
or the Note Purchase Agreement;




     (g) any notice of any sale, transfer or other disposition of any right, title to or
interest in any Note or other Guaranteed Obligation by any Holder, assignee or participant
thereof, or in the Note Purchase Agreement;




     (h) any release of any Subsidiary Guarantor from its obligations hereunder resulting
from any loss by it of its rights of subrogation hereunder; and




     (i) any other circumstance whatsoever which might otherwise constitute a legal or
equitable discharge, release or defense of a guarantor or surety or which might otherwise
limit recourse against such Subsidiary Guarantor.



- 11 -









 





Section 6. Waiver of Subrogation.




     Notwithstanding any payment or payments made by any Subsidiary Guarantor hereunder, or any
application by any Holder of any security or of any credits or claims, no Subsidiary Guarantor will
assert or exercise any rights of any Holder or of such Subsidiary Guarantor against the Company to
recover the amount of any payment made by such Subsidiary Guarantor to any Holder hereunder by way
of any claim, remedy or subrogation, reimbursement, exoneration, contribution, indemnity,
participation or otherwise arising by contract, by statute, under common law or otherwise, and such
Subsidiary Guarantor shall not have any right of recourse to or any claim against assets or
property of the Company, in each case unless and until the Guaranteed Obligations have been
indefeasibly paid in full. Until such time (but not thereafter), each Subsidiary Guarantor hereby
expressly waives any right to exercise any claim, right or remedy which such Subsidiary Guarantor
may now have or hereafter acquire against the Company or any other Subsidiary Guarantor that arises
under the Notes, the Note Purchase Agreement or from the performance by any Subsidiary Guarantor of
the guaranty hereunder including any claim, remedy or right of subrogation, reimbursement,
exoneration, contribution, indemnification or participation in any claim, right or remedy of any
Holder against the Company or any Subsidiary Guarantor, or any security that any Holder now has or
hereafter acquires, whether or not such claim, right or remedy arises in equity, under contract, by
statute, under common law or otherwise. If any amount shall be paid to a Subsidiary Guarantor by
the Company or another Subsidiary Guarantor after payment in full of the Guaranteed Obligations,
and all or any portion of the Guaranteed Obligations shall thereafter be reinstated in whole or in
part and any Holder is required to repay any sums received by any of them in payment of the
Guaranteed Obligations, this Guaranty shall be automatically reinstated and such amount shall be
held in trust for the benefit of the Holders and shall forthwith be paid to the Holders to be
credited and applied to the Guaranteed Obligations, whether matured or unmatured. The provisions
of this paragraph shall survive the termination of this Guaranty, and any satisfaction and
discharge of the Company by virtue of any payment, court order or any Federal or state law.



Section 7. Subordination.




     If any Subsidiary Guarantor is or becomes the holder of any indebtedness payable by the
Company or another Subsidiary Guarantor, each Subsidiary Guarantor hereby subordinates all
indebtedness owing to it from the Company or such other Subsidiary Guarantor to all indebtedness of
the Company to the Holders, and agrees that, during the continuance of any Event of Default, it
shall not accept any payment on the same until payment in full of the Guaranteed Obligations and
shall in no circumstance whatsoever attempt to set-off or reduce any obligations hereunder because
of such indebtedness. If any amount shall nevertheless be paid in violation of the foregoing to a
Subsidiary Guarantor by the Company or another Subsidiary Guarantor prior to payment in full of the
Guaranteed Obligations, such amount shall be held in trust for the benefit of the Holders and shall forthwith be paid to the Holders to be credited
and applied to the Guaranteed Obligations, whether matured or unmatured.



- 12 -









 





Section 8. Effect of Bankruptcy Proceedings, Etc.




     (a) If after receipt of any payment of, or proceeds of any security applied (or intended to be
applied) to the payment of all or any part of, the Guaranteed Obligations, any Holder is for any
reason compelled to surrender or voluntarily surrenders (under circumstances in which it believes
it could reasonably be expected to be so compelled if it did not voluntarily surrender), such
payment or proceeds to any Person (i) because such payment or application of proceeds is or may be
avoided, invalidated, declared fraudulent, set aside, determined to be void or voidable as a
preference, fraudulent conveyance, fraudulent transfer, impermissible set-off or a diversion of
trust funds or (ii) for any other similar reason, including, without limitation, (x) any judgment,
decree or order of any court or administrative body having jurisdiction over any Holder or any of
their respective properties or (y) any settlement or compromise of any such claim effected by any
Holder with any such claimant (including the Company), then the Guaranteed Obligations or part
thereof intended to be satisfied shall be reinstated and continue, and this Guaranty shall continue
in full force as if such payment or proceeds had not been received, notwithstanding any revocation
thereof or the cancellation of any Note or any other instrument evidencing any Guaranteed
Obligations or otherwise, and the Subsidiary Guarantors, jointly and severally, shall be liable to
pay the Holders, and hereby do indemnify the Holders and hold them harmless for, the amount of such
payment or proceeds so surrendered and all expenses (including reasonable attorneys’ fees, court
costs and expenses attributable thereto) incurred by any Holder in defense of any claim made
against any of them that any payment or proceeds received by any Holder in respect of all or part
of the Guaranteed Obligations must be surrendered. The provisions of this paragraph shall survive
the termination of this Guaranty, and any satisfaction and discharge of the Company by virtue of
any payment, court order or any Federal or state law.



     (b) If an event permitting the acceleration of the maturity of any of the Guaranteed
Obligations shall at any time have occurred and be continuing, and such acceleration shall at such
time be prevented by reason of the pendency against the Company or any other Person of any case or
proceeding contemplated by Section 8(a) hereof, then, for the purpose of defining the obligation of
any Subsidiary Guarantor under this Guaranty, the maturity of the principal amount of the
Guaranteed Obligations shall be deemed to have been accelerated with the same effect as if an
acceleration had occurred in accordance with the terms of such Guaranteed Obligations, and such
Subsidiary Guarantor shall forthwith pay such principal amount, all accrued and unpaid interest
thereon, and all other Guaranteed Obligations, due or that would have become due but for such case
or proceeding, without further notice or demand.



Section 9. Term of Guaranty.




     This Guaranty and all guarantees, covenants and agreements of each Subsidiary Guarantor
contained herein shall continue in full force and effect and shall not be discharged until such
time as all of the principal of and interest on the Notes, the other Guaranteed
Obligations and other independent payment obligations of such Subsidiary Guarantor under this
Guaranty shall be indefeasibly paid in cash and performed in full, and all of the agreements of
each of the other Subsidiary Guarantors hereunder shall be duly and indefeasibly paid in cash and
performed in full.



- 13 -









 





Section 10. Contribution.




     In order to provide for just and equitable contribution among the Subsidiary Guarantors, each
Subsidiary Guarantor agrees that, to the extent any Subsidiary Guarantor makes any payment
hereunder on any date which, when added to all preceding payments made by such Subsidiary Guarantor
hereunder, would result in the aggregate payments by such Subsidiary Guarantor hereunder exceeding
its Percentage (as defined below) of all payments then or theretofore made by all Subsidiary
Guarantors hereunder, such Subsidiary Guarantor shall have a right of contribution against each
other Subsidiary Guarantor whose aggregate payments then or theretofore made hereunder are less
than its Percentage of all payments by all Subsidiary Guarantors then or theretofore made
hereunder, in an amount such that, after giving effect to any such contribution rights, each
Subsidiary Guarantor will have paid only its Percentage of all payments by all Subsidiary
Guarantors then or theretofore made hereunder. Such contribution rights shall be subordinate and
subject in right of payment to the Guaranteed Obligations and all other indebtedness owed to any
Holder and, except as provided in the next sentence, no Subsidiary Guarantor shall exercise such
rights of contribution until all Guaranteed Obligations have been indefeasibly paid in cash and
performed in full. Furthermore, each Subsidiary Guarantor hereby unconditionally and irrevocably
agrees that in the event any payment shall be required to be made to any Holder under this Guaranty
or any other guaranty, such Subsidiary Guarantor will contribute, to the maximum extent permitted
by law, such amounts to each other Subsidiary Guarantor and each other guarantor so as to maximize
the aggregate amount paid to the Holders under or in respect of the Notes and the Note Purchase
Agreement. A Subsidiary Guarantor’s “Percentage” on any date shall mean the percentage obtained by
dividing (a) the Adjusted Net Assets of such Subsidiary Guarantor on such date by (b) the sum of
the Adjusted Net Assets of all Subsidiary Guarantors on such date. “Adjusted Net Assets” means,
for each Subsidiary Guarantor on any date, the lesser of (i) the amount by which the fair value of
the property of such Subsidiary Guarantor exceeds the total amount of liabilities, including
contingent liabilities, but excluding liabilities under this Guaranty, of such Subsidiary Guarantor
on such date and (ii) the amount by which the present fair salable value of the assets of such
Subsidiary Guarantor on such date exceeds the amount that will be required to pay the probable
liability of such Subsidiary Guarantor on its debts, excluding debt in respect of this Guaranty, as
they become absolute and matured.



Section 11. Limitation of Liability. 




     Each Subsidiary Guarantor hereby confirms that it is the intention of such Subsidiary
Guarantor that the guarantee by such Subsidiary Guarantor pursuant to this Guaranty not constitute
a fraudulent transfer or conveyance for purposes of Title 11 of the United States Code, the Uniform
Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar
applicable Federal or state law (all such statutes and laws are collectively referred to as
“Fraudulent Conveyance Laws”). To effectuate the foregoing intention, each Subsidiary Guarantor
hereby irrevocably agrees that the obligations of such Subsidiary Guarantor under this Guaranty
shall be limited to the amount as will, after giving effect to all rights to receive any
collections from or payments by or on behalf of any other Subsidiary Guarantor in respect of the
obligations of such other Subsidiary Guarantor pursuant to Section 10 hereof, result in the
obligations of such Subsidiary Guarantor under this Guaranty not constituting such a fraudulent



- 14 -









 







transfer or conveyance. In the event that the liability of any Subsidiary Guarantor hereunder is
limited pursuant to this Section 11 to an amount that is less than the total amount of the
Guaranteed Obligations, then it is understood and agreed that the portion of the Guaranteed
Obligations for which such Subsidiary Guarantor is liable hereunder shall be the last portion of
the Guaranteed Obligations to be repaid.



Section 12. Negative Pledge. 




     Except as permitted under Section 10.3 of the Note Purchase Agreement, no Subsidiary Guarantor
will create any Lien on its assets or property to any other Person during the pendency of this
Guaranty except for Liens permitted by Section 10.3 of the Note Purchase Agreement.



Section 13. Supplemental Agreement. 




     Upon execution and delivery by a Subsidiary of a Supplemental Agreement substantially in the
form of Exhibit A hereto, such Subsidiary shall become a Subsidiary Guarantor hereunder with the
same force and effect as if originally named as a Subsidiary Guarantor herein. The execution and
delivery of any such instrument shall not require the consent of any other Subsidiary Guarantor
hereunder or of any Holder. The rights and obligations of each Subsidiary Guarantor hereunder
shall remain in full force and effect notwithstanding the addition of any new Subsidiary Guarantor
as a party to this Guaranty.



Section 14. Definitions and Terms Generally. 




     (a) Unless otherwise defined herein, capitalized terms defined in the Note Purchase Agreement
are used herein as defined therein. In addition, the following terms shall have the following
meanings.



     “Adjusted Net Assets” has the meaning specified in Section 10 hereof.



     “Fraudulent Conveyance Laws” has the meaning specified in Section 11 hereof.



     “Guaranteed Obligations” has the meaning specified in Section 1 hereof.



     “Guaranty” has the meaning specified in the introduction hereto.



     “holder” means, with respect to any Note, the Person in whose name such Note is registered in
the register maintained by the Company pursuant to Section 13.1 of the Note Purchase Agreement.



     “Holders” has the meaning specified in the introduction hereto.



     “Material Adverse Effect” means a material adverse effect on (a) the business, operations,
affairs, financial condition, assets or properties of the Company and the Subsidiary Guarantors,
taken as a whole, (b) the ability of any Subsidiary Guarantor to perform its



- 15 -









 







obligations under this Guaranty or (c) the validity or enforceability of this Guaranty, the Note Purchase Agreement or the
Notes.



     “Maximum Guaranteed Amount” shall mean, for each Subsidiary Guarantor, the maximum amount
which any Subsidiary Guarantor could pay under this Guaranty without having such payment set aside
as a fraudulent transfer or conveyance or similar action under Fraudulent Conveyance Law.



     “Note Purchase Agreement” has the meanings specified in the Recitals hereto.



     “Notes” has the meanings specified in the Recitals hereto.



     “Percentage” has the meaning specified in Section 10 hereof.



     “property” or “properties” means, unless otherwise specifically limited, real or personal
property of any kind, tangible or intangible, choate or inchoate.



     “Required Holders” has the meaning specified in the Note Purchase Agreement.



     “Subsidiary Guarantor” has the meaning specified in the introduction hereto.



     (b) Whenever the context may require, any pronoun shall include the corresponding masculine,
feminine and neuter forms. The words “include,” “includes” and “including” shall be deemed to be
followed by the phrase “without limitation.” All references herein to Articles, Sections, Exhibits
and Schedules shall be deemed references to Articles and Sections of, and Exhibits and Schedules
to, this Guaranty unless the context shall otherwise require.



Section 15. Notices. 




     All notices under the terms and provisions hereof shall be in writing (with charges prepaid),
and shall be delivered or sent by hand, by telecopy, by express courier service or by registered or
certified mail, return receipt requested, postage prepaid, addressed,




     (a) if to any Holder, at the address set forth in the Note Purchase Agreement, or at
such other address as any such Holder shall from time to time designate to the Company,




     (b) if to a Subsidiary Guarantor, at the address of such Subsidiary Guarantor set forth
on the signature pages hereto or at such other address as such Subsidiary Guarantor shall
from time to time designate in writing to each Holder.


A notice or communication shall be deemed to have been duly given and effective:





	 	(a)	 	when delivered (whether or not accepted), if personally delivered;




- 16 -









 












	 	(b)	 	five Business Days after being deposited in the mail, postage prepaid, if
delivered by first-class mail (whether or not accepted);
	 
	 	(c)	 	when sent, if sent via facsimile;
	 
	 	(d)	 	when delivered if sent by registered or certified mail (whether or not
accepted); and
	 
	 	(e)	 	on the next Business Day if timely delivered by an overnight air courier, with
charges prepaid (whether or not accepted).





Section 16. Amendments, Etc. 




     No amendment, alteration, modification or waiver of any term or provision of this Guaranty,
nor consent to any departure by any Subsidiary Guarantor therefrom, shall in any event be effective
unless the same shall be in writing and consented to by each Subsidiary Guarantor and the Required
Holders provided, however, that (i) any amendment, alteration, modification or waiver of the terms
and conditions contained in Section 1 hereof shall require consent from all Holders, and then such
waiver or consent shall be effective only in the specific instance and for the specific purpose for
which given and (ii) any Supplemental Agreement executed pursuant to Section 13 shall not require
the consent of any Holder or any Subsidiary Guarantor.



Section 17. Consent to Jurisdiction; Service of Process. 




     (a) Each Subsidiary Guarantor irrevocably submits to the nonexclusive in personam jurisdiction
of any New York State or federal court sitting in New York City, over any suit, action or
proceeding arising out of or relating to this Guaranty or the Notes. To the fullest extent it may
effectively do so under applicable law, each Subsidiary Guarantor irrevocably waives and agrees not
to assert, by way of motion, as a defense or otherwise, any claim that it is not subject to the in
personam jurisdiction of any such court, any objection that it may now or hereafter have to the
laying of the venue of any such suit, action or proceeding brought in any such court and any claim
that any such suit, action or proceeding brought in any such court has been brought in an
inconvenient forum.



     (b) Each Subsidiary Guarantor agrees, to the fullest extent it may effectively do so under
applicable law, that a final judgment in any suit, action or proceeding of the nature referred
to in paragraph (a) of this Section 17 brought in any such court shall be conclusive and binding
upon such party, subject to rights of appeal and may be enforced in the courts of the United States
of America or the State of New York (or any other courts to the jurisdiction of which such party is
or may be subject) by a suit upon such judgment.



     (c) Each Subsidiary Guarantor consents to process being served in any suit, action or
proceeding of the nature referred to in paragraph (a) of this Section 17 by mailing a copy thereof
by registered or certified mail, postage prepaid, return receipt requested, to the address of each
Subsidiary Guarantor specified in Section 15 or at such other address of which you shall then



- 17 -









 







have been notified pursuant to said Section. Each Subsidiary Guarantor agrees that such service upon
receipt (i) shall be deemed in every respect effective service of process upon it in any such suit,
action or proceeding and (ii) shall, to the full extent permitted by law, be taken and held to be
valid personal service upon and personal delivery to such party. Notices hereunder shall be
conclusively presumed received as evidenced by a delivery receipt furnished by the United States
Postal Service or any reputable commercial delivery service.



     (d) Nothing in this Section 17 shall affect the right of any Holder to serve process in any
manner permitted by law, or limit any right that any of the Holders may have to bring proceedings
against any Subsidiary Guarantor in the courts of any appropriate jurisdiction or to enforce in any
lawful manner a judgment obtained in one jurisdiction in any other jurisdiction.



Section 18. Waiver of Jury Trial. 




     Each Subsidiary Guarantor and by its acceptance hereof each Holder, to the fullest extent
permitted by applicable law, irrevocably and unconditionally waives the right to trial by jury in
any legal or equitable action, suit or proceeding arising out of or relating to this Guaranty or
the Note Purchase Agreement or any transaction contemplated hereby or thereby or the subject matter
of any of the foregoing.



Section 19. Survival. 




     All warranties, representations and covenants made by each Subsidiary Guarantor herein or in
any written certificate or other instrument required to be delivered by it or on its behalf
hereunder or under the Note Purchase Agreement shall be considered to have been relied upon by the
Holders and shall survive the execution and delivery of this Guaranty, regardless of any
investigation made by any Holder or on such Holder’s behalf. All statements in any such
certificate or other instrument shall constitute warranties and representations by such Subsidiary
Guarantor hereunder.



Section 20. Severability. 




     Any provision of this Guaranty which is prohibited or unenforceable in any jurisdiction shall,
as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability
without invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in
any other jurisdiction. To the extent permitted by applicable law, each Subsidiary Guarantor
hereby waives any provision of law that renders any provisions hereof prohibited or unenforceable
in any respect.



- 18 -









 





Section 21. Successors and Assigns. 




     The terms of this Guaranty shall be binding upon each Subsidiary Guarantor and its successors
and assigns and shall inure to the benefit of the Holders and their respective successors and
assigns.



Section 22. Table of Contents; Headings. 




     The section and paragraph headings in this Guaranty and the table of contents are for
convenience of reference only and shall not modify, define, expand or limit any of the terms or
provisions hereof, and all references herein to numbered sections, unless otherwise indicated, are
to sections in this Guaranty.



Section 23. Counterparts. 




     This Guaranty may be executed in any number of counterparts, each of which shall be an
original, but all of which together shall constitute one instrument.



Section 24. Governing Law. 




     This Guaranty shall in all respects be governed by, and construed and interpreted in
accordance with, the laws of the State of New York, without regard to the conflicts of laws
principles of such state.



Section 25. Release. 




     Notwithstanding any other provision hereof to the contrary, including without limitation
Section 3(c)(v), 3(c)(xiv) and 3(c)(xv), a Subsidiary Guarantor shall be automatically released
from its guaranty hereunder upon the sale or exchange of all or substantially all of the stock (or
other equity interests) or the assets of such Subsidiary Guarantor permitted pursuant to Section
10.4 of the Note Purchase Agreement.



Section 26. Covenant Compliance. 




     Each Subsidiary Guarantor agrees to comply with each of the covenants contained herein and in
the Note Purchase Agreement that imposes or purports to impose, by reference to such
Subsidiary Guarantor, express or otherwise, through agreements with the Company, restrictions
or obligations on such Subsidiary Guarantor.



- 19 -









 





     In Witness Whereof, each party hereto has caused this Guaranty to be duly executed as
of the date first above written.



	 	 	 
	 

	 	American Gypsum Company
	 

	 	American Gypsum Marketing Company
	 

	 	CCP Cement Company
	 

	 	CCP Concrete/Aggregates LLC
	 

	 	CCP Gypsum Company
	 

	 	CCP Land Company
	 

	 	Centex Cement Corporation
	 

	 	Hollis & Eastern Railroad Company LLC
	 

	 	Mathews Readymix LLC
	 

	 	M&W Drywall Supply Company
	 

	 	Mountain Cement Company
	 

	 	Nevada Cement Company
	 

	 	Republic Paperboard Company LLC
	 

	 	Texas Cement Company
	 

	 	Western Aggregates LLC 
	 

	 	Western Cement Company of California
	 

	 	AG South Carolina LLC
	 

	 	Illinois Cement Company LLC 






	 	 	 	 	 
	 

	 	By:	 	 
	 

	 	 	 	 
	 

	 	 	 	Name:

Title:
	 
	 	 	 	 
	 	 	Centex Materials LLC

	 	 	TLCC GP LLC
	 
	 	 	 	 
	 

	 	By:	 	 
	 

	 	 	 	 
	 

	 	 	 	Name:

Title:
	 
	 	 	 	 
	 	 	TLCC LP LLC
	 
	 	 	 	 
	 

	 	By:	 	 
	 

	 	 	 	 
	 

	 	 	 	Name:

Title:






	 	 	 	 	 	 	 
	 

	 	Notice for each of the above:	 	 	 	 
	 

	 	 	 	Address:
	 	3811 Turtle Creek Blvd.
	 

	 	 	 	 	 	Suite 1100

Dallas, Texas 75219
	 
	 	 	 	 	 	 
	 

	 	 	 	Telecopy:
	 	(214) 432-2100







- 20 -










 






Exhibit A

Form of Supplemental Agreement




     Supplemental Agreement dated as of                     , ___from                     , a                     
organized under the laws of the State of                      (the “New Subsidiary”), for the benefit of the
Holders (as defined in the Guaranty referred to below). Capitalized terms used herein without
definition shall have the respective meanings ascribed thereto in the Subsidiary Guaranty
Agreement, dated as of November 15, 2005 (the “Guaranty”), from: (i) [names of guarantors] and (___)
such other Subsidiaries (as defined below) as shall become parties thereto in accordance therewith,
for the benefit of the Holders (as such term is defined in such Guaranty).



     Whereas, Eagle Materials Inc., a Delaware corporation (the “Company”), authorized the
issue and sale of (i) $40,000,000 5.25% Series 2005A Senior Notes, Tranche A, due November 15, 2012
(the “Tranche A Notes”), (ii) $80,000,000 5.38% Series 2005A Senior Notes, Tranche B, due November
15, 2015 (the “Tranche B Notes”) and (iii) $80,000,000 5.48% Series 2005A Senior Notes, Tranche C,
due November 15, 2017 (the “Tranche C Notes” and, together with the Tranche A Notes and the Tranche
B Notes, the “Series 2005A Notes”), pursuant to a Note Purchase Agreement, dated as of November 15,
2005 (as amended, modified or supplemented from time to time, the “Note Purchase Agreement”) among
the Company and the purchasers named therein.



     Whereas, the Company is authorized to issue Additional Notes (as such term is defined
in the Note Purchase Agreement) of one or more separate series from time to time in an aggregate
principal amount not to exceed $500,000,000 pursuant to Section 2.2 of the Note Purchase Agreement.



     Whereas, the Additional Notes together with the Series 2005A Notes are collectively
referred to as the “Notes”.



     Whereas, the New Subsidiary is a Subsidiary of the Company.



     Whereas, certain of the existing Subsidiaries of the Company have entered into the
Guaranty.



     Whereas, the Note Purchase Agreement requires that certain Subsidiaries become party
to the Guaranty (as a Subsidiary Guarantor).



     Whereas, the New Subsidiary acknowledges that it has and will derive substantial
benefits from the issuance of the Notes.



     Whereas, the Guaranty specifies that additional Subsidiaries may become Subsidiary
Guarantors under such Guaranty by execution and delivery of an instrument in the form of this
Agreement. The undersigned Subsidiary is executing this Agreement in accordance with the
requirements of the Note Purchase Agreement and the Guaranty in order to become a Subsidiary
Guarantor under the Guaranty as consideration for the Notes previously purchased.



 









 





     Now, Therefore, the New Subsidiary Guarantor agrees as follows:



     Section 1. Guaranty. In accordance with Section 13 of the Guaranty, the New Subsidiary by its
signature hereto shall become a Subsidiary Guarantor under such Guaranty with the same force and
effect as if originally named therein as a Subsidiary Guarantor and the New Subsidiary hereby (a)
agrees to all the terms and provisions of such Guaranty applicable to it as a Subsidiary Guarantor
thereunder, (b) represents and warrants that the representations and warranties made by it as a
Subsidiary Guarantor are true and correct on and as of the date hereof with the same effect as
though made on and as of the date hereof, (c) acknowledges receipt of a copy of and agrees to be
obligated and bound by the terms of such Guaranty, and (d) agrees that each reference to a
“Subsidiary Guarantor” in such Guaranty shall be deemed to include the New Subsidiary.



     Section 2. Enforceability. The New Subsidiary hereby represents and warrants that this
Agreement has been duly authorized, executed and delivered by the New Subsidiary and that each of
this Agreement and the Guaranty (as supplemented hereby) constitutes a legal, valid and binding
obligation of the New Subsidiary enforceable against it in accordance with its terms, except as
such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar
laws affecting the applicability of creditors’ rights generally and by equitable principles of
general applicability (regardless of whether such enforceability is considered in a proceeding in
equity or at law).



     Section 3. Effect on Guaranty. Except as expressly supplemented hereby, the Guaranty shall
continue in full force and effect.



     Section 4. Governing Law. This Agreement shall in all respects be governed by,
and construed and interpreted in accordance with, the laws of the State of New York, without regard
to the conflicts of laws principles of such state.



     Section 5. Savings Clause. To the fullest extent permitted under applicable law, in the event
any one or more of the provisions contained in this Agreement should be held invalid, illegal or
unenforceable in any respect with respect to the New Subsidiary, no party hereto shall be required
to comply with such provision for so long as such provision is held to be invalid, illegal or
unenforceable, and the validity, legality and enforceability of the remaining provisions contained
herein shall not in any way be affected or impaired. The parties shall endeavor in good-faith
negotiations to replace any invalid, illegal or unenforceable provisions with valid provisions, the
economic effect of which comes as close as possible to that of the invalid, illegal or
unenforceable provisions.



     Section 6. Notices. All communications to the New Subsidiary shall be given to it at the
address or telecopy number set forth under its signature hereto.



 









 





     In Witness Whereof, the New Subsidiary has duly executed this Agreement as of the day
and year first above written.



	 	 	 	 	 	 	 
	 	 	[New Subsidiary]
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 	 	 	 	 
	 

	 	 	 	Name:	 	 
	 

	 	 	 	Title:	 	 
	 
	 	 	 	 	 	 
	 

	 	 	 	Address:	 	 
	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	 	 	Telecopy:	 	 
	 	 	 	 	 	 	 





 









 





Form of Opinion of General Counsel

to the Company




     The closing opinion of James H. Graass, General Counsel of the Company, which is called for by
Section 4.4 of the Note Purchase Agreement, shall be dated the Closing Date and addressed to the
Purchasers, shall be satisfactory in scope and form to each Purchaser and shall be in the form
attached hereto.



Exhibit 4.4(a)

(to Note Purchase Agreement)



 









 





November 15, 2005




To each of the Purchasers listed on

Schedule I attached hereto




	 	 	 	 	 
	 

	 	Re:
	 	Eagle Materials Inc.
	 

	 	 	 	$40,000,000 5.25% Series 2005A Senior Notes, Tranche A due November 15, 2012

	 

	 	 	 	$80,000,000 5.38% Series 2005A Senior Notes, Tranche B due November 15, 2015
	 

	 	 	 	$80,000,000 5.48% Series 2005A Senior Notes, Tranche C due November 15, 2017






Dear Sirs:




     I am Executive Vice President and General Counsel of Eagle Materials Inc., a Delaware
corporation (the “Company”), and have represented the Company and the Subsidiary Guarantors, as
defined below, in connection with (i) the Note Purchase Agreement dated as of November 15, 2005
(the “Note Agreement”) among the Company and each of you, pursuant to which the Company has issued
to you collectively today $40,000,000 aggregate principal amount of its 5.25% Series 2005A Senior
Notes, Tranche A due November 15, 2012, $80,000,000 aggregate principal amount of its 5.38% Series
2005A Senior Notes, Tranche B due November 15, 2015, and $80,000,000 aggregate principal amount of
its 5.48% Series 2005A Senior Notes, Tranche C due November 15, 2017 (collectively, the “Notes”),
and (ii) the Subsidiary Guaranty Agreement dated as of November 15, 2005 (the “Subsidiary
Guaranty”), entered into by certain direct and indirect Subsidiaries of the Company parties thereto
(the “Subsidiary Guarantors”). The Note Agreement, the Notes and the Subsidiary Guaranty are
sometimes referred to collectively herein as the “Transaction Documents”. All capitalized terms
used in this opinion and not otherwise defined herein shall have the meanings attributed to them in
the Note Agreement. This opinion is being furnished to you pursuant to Section 4.4(a) of the Note
Agreement.



     In connection with the foregoing, I have researched such questions of law and examined the
originals or copies, certified or otherwise authenticated to my satisfaction, of the Transaction
Documents and of such corporate, partnership or limited liability company records, agreements or
other instruments of the Company and the Subsidiary Guarantors, certificates of public officials
and of officers of the Company and the Subsidiary Guarantors and other instruments and documents as
I have deemed necessary as a basis for the opinions hereinafter expressed. As to various questions
of fact material to such opinions, I have, where relevant facts were not independently established,
relied upon statements of officers of the Company or applicable Subsidiary Guarantor.



 









 





     I have, with your permission and without independent verification, assumed that the signatures
(other than those of the officers of the Company or any Subsidiary Guarantors) on all documents
examined by me are genuine, all documents submitted to me as originals are authentic and all
documents submitted as certified or photostatic copies conform to the originals thereof.



     Upon the basis of the foregoing and subject to the conditions and qualifications set forth
herein, I am of the opinion that:



     1. The Company and each Subsidiary Guarantor has the requisite corporate or other
organizational power and authority to conduct the activities in which it is now engaged.



     2. Each Subsidiary Guarantor is a corporation or other legal entity, validly existing and in
good standing under the laws of its jurisdiction of organization, and has the requisite corporate
or other organizational power and authority to execute, deliver and perform the Subsidiary
Guaranty.



     3. The issuance and sale of the Notes, the execution, delivery and performance by the Company
of the Note Agreement, and the execution, delivery and performance by each Subsidiary Guarantor of
the Subsidiary Guaranty do not violate any provision of any law or other rule or regulation of any
Governmental Authority applicable to the Company or any such Subsidiary Guarantor or conflict with
or result in any breach of any of the provisions of or constitute a default under or result in the
creation or imposition of any Lien upon any property of the Company or any such Subsidiary
Guarantor pursuant to the provisions of the Articles or Certificate of Incorporation or By-laws, or
such similar organizational or governing instrument, as the case may be, of the Company or such
Subsidiary Guarantor or any of the agreements listed on Schedule 5.15 to the Note Agreement or any
other material agreement or other instrument to which the Company or any such Subsidiary Guarantor
is a party or by which the Company or any such Subsidiary Guarantor may be bound.



     4. There are no actions, suits or proceedings pending or, to my knowledge after due inquiry,
threatened against or affecting the Company or any Subsidiary in any court or before any
governmental authority or arbitration board or tribunal which, if adversely determined, would have
a materially adverse effect on the ability of the Company to perform its obligations under the Note
Agreement and the Notes, on the ability of any Subsidiary Guarantor to perform its obligations
under the Subsidiary Guaranty or on the legality, validity or enforceability of the Company’s
obligations under the Note Agreement and the Notes or any Subsidiary Guarantor’s obligations under
the Subsidiary Guaranty. Neither the Company nor any Subsidiary is in default in any material
respect with respect to any court or government authority, or arbitration board or tribunal.



     5. No approval, consent or withholding of objection on the part of, or filing, registration or
qualification with, any governmental body, Federal or state, is necessary in connection with the
execution and delivery by the Company of the Note Agreement and the Notes or the execution and
delivery by each Subsidiary Guarantor of the Subsidiary Guaranty.



 









 





     6. The Subsidiary Guaranty has been duly authorized by all necessary corporate or other
organizational action on the part of each Subsidiary Guarantor and has been duly executed and
delivered by each Subsidiary Guarantor.



     The opinions expressed above are subject to the following qualifications:




	 	(a)	 	I am a member of the bar of the State of Texas, and, except as
hereinafter provided with respect to the business organization laws of the
states of California, Delaware and Nevada, I express no opinion herein as to
the effect that the laws or decisions of courts of any jurisdiction other than
the United States of America and the State of Texas may have upon such
opinions. To the extent that the opinions expressed above may relate to or be
governed by or construed under the laws of the states of California, Delaware
or Nevada, such opinion pass on such matters; however, I advise you that I am
not a member of the bar of the state of California, Delaware or Nevada although
it is my practice as General Counsel of the Company and each Subsidiary
Guarantor to pass upon matters governed by California, Delaware or Nevada
business organization laws. I undertake no obligation or responsibility to
update or supplement such opinion in response to subsequent changes in law or
future events affecting any of the transactions contemplated by the Transaction
Documents.
	 
	 	(b)	 	The opinions expressed above are solely for your benefit and,
without my prior written consent, may not be relied upon, quoted in whole or in
part or otherwise referred to in any legal opinion, document or other report,
and may not be furnished to any other person or entity provided, that: (i) a
copy of this opinion letter may be included in routine filings made with
regulatory authorities by the Purchasers and subsequent institutional holders
of the Notes; and (ii) subsequent institutional holders of the Notes and the
Purchaser’s special counsel, Chapman and Cutler LLP, may each also rely upon
the opinions expressed herein as if this opinion letter were addressed and
delivered to such holders or such special counsel on the date hereof.





	 	 	 
	 

	 	Very truly yours,
	 
	 	 
	 

	 	James H. Graass
	 

	 	Executive Vice President and
	 

	 	General Counsel







 









 








			
	Each of the Purchasers listed

on Schedule I
	 	November 15, 2005






Schedule I




Purchasers




Metropolitan Life Insurance Company

General American Life Insurance Company

The Travelers Insurance Company

Transamerica Occidental Life Insurance Company

Transamerica Life Insurance Company

Monumental Life Insurance Company

The Lincoln National Life Insurance Company

Sons of Norway

First Penn-Pacific Life Insurance Company

Lincoln Life & Annuity Company of New York

Jackson National Life Insurance Company

Jackson National Life Insurance Company of New York

General Electric Capital Assurance Company

GE Capital Life Assurance Company of New York






 









 





			
	Each of the Purchasers listed

on Schedule I
	 	November 15, 2005






Form of Opinion of Special Counsel

to the Company




     The closing opinion of Baker Botts L.L.P., special counsel to the Company, which is called for
by Section 4.4 of the Note Purchase Agreement, shall be dated the Closing Date and addressed to the
Purchasers, shall be satisfactory in scope and form to each Purchaser and shall be in the form
attached hereto.



Exhibit 4.4(b)

(to Note Purchase Agreement)




 









 





November 15, 2005




Each of the Purchasers listed on

Schedule I attached hereto




	 	 	 	 	 
	 

	 	Re:
	 	Eagle Materials Inc.
	 

	 	 	 	$40,000,000 5.25% Series 2005A Senior Notes, Tranche A due November 15, 2012
	 

	 	 	 	$80,000,000 5.38% Series 2005A Senior Notes, Tranche B due November 15, 2015
	 

	 	 	 	$80,000,000 5.48% Series 2005A Senior Notes, Tranche C due November 15, 2017






Ladies and Gentlemen:




     We have acted as special counsel to Eagle Materials Inc., a Delaware corporation (the
“Company”), in connection with (i) the Note Purchase Agreement dated as of November 15, 2005 (the
“Note Agreement”) among the Company and each of you, pursuant to which the Company has issued to
you collectively today $40,000,000 aggregate principal amount of its 5.25% Series 2005A Senior
Notes, Tranche A due November 15, 2012, $80,000,000 aggregate principal amount of its 5.38% Series
2005A Senior Notes, Tranche B due November 15, 2015, and $80,000,000 aggregate principal amount of
its 5.48% Series 2005A Senior Notes, Tranche C due November 15, 2017 (collectively, the “Notes”),
and (ii) the Subsidiary Guaranty Agreement dated as of November 15, 2005 (the “Subsidiary Guaranty
Agreement”), entered into by certain direct and indirect Subsidiaries of the Company parties
thereto (the “Subsidiary Guarantors”). The Note Agreement, the Notes and the Subsidiary Guaranty
Agreement are sometimes referred to collectively herein as the “Transaction Documents”. Capitalized
terms used and not otherwise defined herein have the respective meanings specified in the Note
Agreement. This opinion is being furnished to you pursuant to Section 4.4(b) of the Note
Agreement.



     In this connection and as a basis for the opinions hereinafter expressed, we have examined
executed counterparts of each of the Transaction Documents. We have also examined originals, or
copies certified or otherwise identified to our satisfaction, of (i) the certificate of
incorporation and bylaws of the Company, each as amended to date, (ii) certain corporate records of
the Company, (iii) certificates of public officials and of officers of the Company and the
Subsidiary Guarantors and (iv) such other documents, all as we have deemed relevant and necessary
as a basis for the opinions hereinafter expressed. In giving such opinions, we have relied upon
certificates of officers of the Company and the Subsidiary Guarantors and of governmental and
public officials, and upon the representations and warranties of the parties in



 









 




the Transaction Documents, in each case with respect to the accuracy of factual matters contained
therein or covered thereby.




     We have, with your permission and without independent verification, assumed that the
signatures on all documents examined by us are genuine, all documents submitted to us as originals
are authentic and all documents submitted as certified or photostatic copies conform to the
originals thereof, and that each of the Transaction Documents constitutes a valid, binding and
enforceable obligation of each party thereto other than the Company and the Subsidiary Guarantors.



     With respect to the Subsidiary Guarantors, we have also, with your permission and without
independent verification, assumed the following: (i) each of the Subsidiary Guarantors is a
corporation or limited liability company, as applicable, validly existing and in good standing
under the laws of such Subsidiary Guarantor’s applicable jurisdiction of organization and has the
requisite power to enter into, and to perform its obligations under, the Subsidiary Guaranty
Agreement, (ii) the Subsidiary Guaranty Agreement has been duly authorized by all requisite action
by each of the Subsidiary Guarantors, (iii) the Subsidiary Guaranty Agreement has been duly
executed and delivered by an authorized officer of each of the Subsidiary Guarantors, (iv) the
execution and delivery by each of the Subsidiary Guarantors of, and performance of each of the
Subsidiary Guarantor’s agreements in, the Subsidiary Guaranty Agreement does not violate the
certificate or articles of incorporation, bylaws, certificate or articles of formation, limited
liability company agreement or other organizational or governance document of any Subsidiary
Guarantor or breach or otherwise violate any existing obligation of any Subsidiary Guarantor under
any court order, judgment or decree, (v) the execution and delivery by each of the Subsidiary
Guarantors of the Subsidiary Guaranty Agreement, the consummation of the transactions contemplated
by the Subsidiary Guaranty Agreement, and compliance by each of the Subsidiary Guarantors with the
provisions thereof will not violate any statute, rule or regulation of any applicable governmental
authority and (vi) no consent, approval, waiver, license or authorization or other action by or
filing with any governmental authority is required under the statutes, rules or regulations of any
applicable governmental authority in connection with the execution, delivery and performance by the
Subsidiary Guarantors of the Subsidiary Guaranty Agreement.



     On the basis of the foregoing, and subject to the qualifications, exceptions, assumptions and
limitations hereinafter set forth, we are of the opinion that:



     1. The Company is validly existing as a corporation in good standing under the laws of the
State of Delaware and has the corporate power to execute and deliver the Note Agreement and the
Notes, to perform its obligations under the Note Agreement and to issue and sell the Notes.



     2. The Note Agreement and the Notes have been duly authorized by all requisite corporate
action by the Company, have been duly executed and delivered by an authorized officer of the
Company and constitute valid and binding obligations of the Company, enforceable against the
Company in accordance with their respective terms.



     3. The Subsidiary Guaranty Agreement constitutes the valid and binding obligation of each of
the Subsidiary Guarantors, enforceable against each of the Subsidiary Guarantors in accordance with
their respective terms.



 









 





     4. Based upon the factual representations contained in Sections 5.13, 6.1 and 6.2 of the Note
Agreement and in the letter dated November 15, 2005 from Banc of America Securities LLC relating to
its offering of the Notes, it is not necessary in connection with the offering, issuance, sale and
delivery of the Notes and the execution and delivery of the Subsidiary Guaranty Agreement under the
circumstances contemplated by the Note Agreement and the Subsidiary Guaranty Agreement to register
the Notes or the Subsidiary Guaranty Agreement under the Securities Act or to qualify an indenture
in respect of the Notes or the Subsidiary Guaranty Agreement under the Trust Indenture Act of 1939,
as amended.



     5. The extension, arranging and obtaining of the credit represented by (i) the execution and
delivery by the Company of the Note Agreement and the Notes, (ii) the issuance of the Notes by the
Company and (iii) the application of the proceeds of the sale of the Notes do not result in a
violation of Regulations T, U or X of the Board of Governors of the Federal Reserve System.



     6. Neither the Company nor any of the Subsidiary Guarantors is an “investment company” or a
company controlled by an “investment company,” within the meaning of the Investment Company Act of
1940, as amended.



     The opinions set forth above are subject to the following qualifications and limitations:



     (a) The enforceability of the Transaction Documents may be subject to or limited by
bankruptcy, insolvency, reorganization, arrangement, fraudulent conveyance or transfer, moratorium
or other similar laws and court decisions, now or hereafter in effect, relating to or affecting the
rights of creditors generally.



     (b) The enforceability of the Transaction Documents is subject to the application of and may
be limited by general principles of equity, including, without limitation, concepts of materiality,
reasonableness, good faith and fair dealing (regardless of whether enforcement is sought in equity
or at law).



     (c) The remedies of specific performance and injunctive and other forms of equitable relief
are subject to equitable defenses and to the discretion of the court before which any proceeding
therefor may be brought.



     (d) Insofar as the opinions expressed in paragraphs 2 and 3 relate to the enforceability of
the Company’s and the Subsidiary Guarantors’ obligation to pay the Make-Whole Amount under the
circumstances contemplated by Sections 11 and 12 of the Note Agreement, we have assumed, with your
permission, that a court would give effect to the parties’ characterization of the Make-Whole
Amount in the final sentence of Section 12.1 of the Note Agreement and would not hold that such
amount constituted a penalty.



     (e) Certain of the remedial, waiver, consent and other provisions of the Subsidiary Guaranty
Agreement may be unenforceable under existing laws or judicial decisions. However, subject to the
other express qualifications contained herein, such laws or judicial decisions would not, in our
opinion, substantially interfere with the practical realization of the principal benefits expressed
in the Subsidiary Guaranty Agreement, except for the economic consequences of any procedural delay
that might result from such laws or decisions.



 









 





     (f) Without limiting the opinion expressed in paragraph 4 above, we express no
opinion as to the various state, federal and foreign laws regulating the Purchasers
or the conduct of their business that may relate to the Transaction Documents and the
transactions contemplated thereby.



     The foregoing opinions are limited in all respects to the laws of the State of
New York, the applicable federal laws of the United States of America and the
Delaware General Corporation Law (and with respect to such Delaware statute, without
consideration of any judicial or administrative interpretations thereof), each as in
effect on the date hereof, and no opinion is expressed herein as to any matters
governed by the laws of any other jurisdiction. We undertake no obligation or
responsibility to update or supplement such opinions in response to subsequent
changes in the law or future events affecting any of the transactions contemplated by
the Transaction Documents.



     The opinions expressed herein are rendered for your benefit solely in connection with the
transactions consummated on the date hereof pursuant to the Transaction Documents and may not be
relied upon or used for any purpose by any other Person without, in each instance, our express
prior written consent; provided, that (i) a copy of this opinion letter may be included in routine
filings made with regulatory authorities by the Purchasers and subsequent institutional holders of
the Notes; and (ii) subsequent institutional holders of the Notes and the Purchaser’s special
counsel, Chapman and Cutler LLP, may each also rely upon the opinions expressed herein solely for
the aforesaid purposes as if this opinion letter were addressed and delivered to such holders or
such special counsel on the date hereof.



Very truly yours,




PBD




 









 








Schedule I




Purchasers




Metropolitan Life Insurance Company

General American Life Insurance Company

The Travelers Insurance Company

Transamerica Occidental Life Insurance Company

Transamerica Life Insurance Company

Monumental Life Insurance Company

The Lincoln National Life Insurance Company

Sons of Norway

First Penn-Pacific Life Insurance Company

Lincoln Life & Annuity Company of New York

Jackson National Life Insurance Company

Jackson National Life Insurance Company of New York

General Electric Capital Assurance Company

GE Capital Life Assurance Company of New York





 










 







Form of Opinion of Special Counsel

to the Purchasers




     The closing opinion of Chapman and Cutler LLP, special counsel to the Purchasers, called for
by Section 4.4 of the Note Purchase Agreement, shall be dated the Closing Date and addressed to
each Purchaser, shall be satisfactory in form and substance to each Purchaser and shall be to the
effect that:



     1. The Company is a corporation, validly existing and in good standing under the laws of its
jurisdiction of incorporation and has the corporate power and the corporate authority to execute
and deliver the Note Purchase Agreement and to issue the Series 2005A Notes.



     2. The Note Purchase Agreement has been duly authorized by all necessary corporate action on
the part of the Company, has been duly executed and delivered by the Company and constitutes the
legal, valid and binding contract of the Company enforceable in accordance with its terms, subject
to bankruptcy, insolvency, fraudulent conveyance and similar laws affecting creditors’ rights
generally, and general principles of equity (regardless of whether the application of such
principles is considered in a proceeding in equity or at law).



     3. The Series 2005A Notes have been duly authorized by all necessary corporate action on the
part of the Company, and the Series 2005A Notes being delivered on the date hereof have been duly
executed and delivered by the Company and constitute the legal, valid and binding obligations of
the Company enforceable in accordance with their terms, subject to bankruptcy, insolvency,
fraudulent conveyance and similar laws affecting creditors’ rights generally, and general
principles of equity (regardless of whether the application of such principles is considered in a
proceeding in equity or at law).



     4. The issuance, sale and delivery of the Series 2005A Notes and the execution and delivery of
the Subsidiary Guaranty under the circumstances contemplated by the Note Purchase Agreement and the
Subsidiary Guaranty do not, under existing law, require the registration of the Series 2005A Notes
or the Subsidiary Guaranty under the Securities Act of 1933, as amended, or the qualification of an
indenture under the Trust Indenture Act of 1939, as amended.




Exhibit 4.4(c)

(to Note Purchase Agreement)



E-4.4(c)-1









 





     With respect to matters of fact upon which such opinion is based, Chapman and Cutler LLP may
rely on appropriate certificates of public officials and officers of the Company and upon
representations of the Company and the Purchasers delivered in connection with the issuance and
sale of the Series 2005A Notes.



     In rendering the opinion set forth in paragraph 1 above, Chapman and Cutler LLP may rely, as
to matters referred to in paragraph 1, solely upon an examination of the Articles of Incorporation
certified by, and a certificate of good standing of the Company from, the Secretary of State of the
State of Delaware, the Bylaws of the Company and the general business corporation law of the State
of Delaware. The opinion of Chapman and Cutler LLP is limited to the laws of the State of New
York, the general business corporation law of the State of Delaware and the Federal laws of the
United States.




E-4.4(c)-2









 






 





Eagle Materials Inc.




[Number] Supplement to Note Purchase Agreement




Dated as of________________________




Re: $                                                             % Series                      Senior Notes




Due                                         




 





Exhibit S

(to Note Purchase Agreement)









 








Eagle Materials Inc.

3811 Turtle Creek Blvd., Suite 1100

Dallas, Texas 75219




Dated as of

                                        , 20__




To the Purchaser(s) named in

Schedule A hereto




Ladies and Gentlemen:




     This [Number] Supplement to Note Purchase Agreement (the “Supplement”) is between Eagle
Materials Inc., a Delaware corporation (the “Company”), and the institutional investors named
on Schedule A attached hereto (the “Purchasers”).



     Reference is hereby made to that certain Note Purchase Agreement dated as of November ___, 2005
(the “Note Purchase Agreement”) between the Company and the purchasers listed on Schedule A
thereto. All capitalized terms not otherwise defined herein shall have the same meaning as
specified in the Note Purchase Agreement. Reference is further made to Section 2.2 of the Note
Purchase Agreement which requires that, prior to the delivery of any Additional Notes, the Company
and each Additional Purchaser shall execute and deliver a Supplement.



     The Company hereby agrees with the Purchaser(s) as follows:



     1. The Company has authorized the issue and sale of $                     aggregate principal amount of
its                     % Series                      Senior Notes due                     , ___(the “Series                      Notes”). The Series
___Notes, together with the Series 2005A Notes [and the Series ___Notes] initially issued
pursuant to the Note Purchase Agreement [and the                      Supplement] and each series of
Additional Notes which may from time to time hereafter be issued pursuant to the provisions of
Section 2.2 of the Note Purchase Agreement, are collectively referred to as the “Notes” (such term
shall also include any such notes issued in substitution therefor pursuant to Section 13 of the
Note Purchase Agreement). The Series ___Notes shall be substantially in the form set out in
Exhibit 1 hereto with such changes therefrom, if any, as may be approved by the Purchaser(s) and
the Company.



     2. Subject to the terms and conditions hereof and as set forth in the Note Purchase Agreement
and on the basis of the representations and warranties hereinafter set forth, the Company agrees to
issue and sell to each Purchaser, and each Purchaser agrees to purchase from the Company, Series
___Notes in the principal amount set forth opposite such Purchaser’s name on Schedule A hereto
at a price of 100% of the principal amount thereof on the closing date hereinafter mentioned.













 





     3. The sale and purchase of the Series                      Notes to be purchased by each Purchaser shall
occur at the offices of [                                                            ] at 10:00 a.m. Chicago time, at a closing
(the “Closing”) on                     , ___or on such other Business Day thereafter on or prior to                     ,
___as may be agreed upon by the Company and the Purchasers. At the Closing, the Company will
deliver to each Purchaser the Series                      Notes to be purchased by such Purchaser in the form of
a single Series                      Note (or such greater number of Series                      Notes in denominations of at
least $100,000 as such Purchaser may request) dated the date of the Closing and registered in such
Purchaser’s name (or in the name of such Purchaser’s nominee), against delivery by such Purchaser
to the Company or its order of immediately available funds in the amount of the purchase price
therefor by wire transfer of immediately available funds for the account of the Company to account
number [                                                            ] at                                          Bank, [Insert Bank address, ABA number for wire
transfers, and any other relevant wire transfer information]. If, at the Closing, the Company
shall fail to tender such Series                      Notes to any Purchaser as provided above in this Section 3,
or any of the conditions specified in Section 4 shall not have been fulfilled to any Purchaser’s
satisfaction, such Purchaser shall, at such Purchaser’s election, be relieved of all further
obligations under this Supplement and the Note Purchase Agreement, without thereby waiving any
rights such Purchaser may have by reason of such failure or such nonfulfillment.



     4. The obligation of each Purchaser to purchase and pay for the Series                      Notes to be sold
to such Purchaser at the Closing is subject to the fulfillment to such Purchaser’s satisfaction,
prior to the Closing, of the conditions set forth in Section 4 of the Note Purchase Agreement with
respect to the Series                      Notes to be purchased at the Closing, and to the following additional
conditions:




(a) Except as supplemented, amended or superceded by the representations and warranties
set forth in Exhibit A hereto, each of the representations and warranties of the Company set
forth in Section 5 of the Note Purchase Agreement shall be correct as of the date of Closing
and the Company shall have delivered to each Purchaser an Officer’s Certificate, dated the
date of the Closing certifying that such condition has been fulfilled.




(b) Contemporaneously with the Closing, the Company shall sell to each Purchaser, and
each Purchaser shall purchase, the Series                      Notes to be purchased by such Purchaser at
the Closing as specified in Schedule A.



     5. [Here insert special provisions for Series                      Notes including prepayment provisions
applicable to Series                      Notes (including Make-Whole Amount) and closing conditions applicable
to Series                      Notes].



     6. Each Purchaser represents and warrants that the representations and warranties set forth in
Section 6 of the Note Purchase Agreement are true and correct on the date hereof with respect to
the purchase of the Series                      Notes by such Purchaser.



     7. The Company and each Purchaser agree to be bound by and comply with the terms and
provisions of the Note Purchase Agreement as fully and completely as if such Purchaser were an
original signatory to the Note Purchase Agreement.



- 2 -









 





     The execution hereof shall constitute a contract between the Company and the Purchaser(s) for
the uses and purposes hereinabove set forth, and this agreement may be executed in any number of
counterparts, each executed counterpart constituting an original but all together only one
agreement.



	 	 	 	 	 	 	 	 	 
	 	 	Eagle Materials Inc.	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 	 	 
	 

	 	 	 	 	 	 	 	 
	 

	 	 	 	Title:	 	 	 	 
	 

	 	 	 	 	 	 	 	 





Accepted as of                     , _______




	 	 	 	 	 	 	 	 	 
	 	 	[Variation]	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 	 	 
	 

	 	 	 	 	 	 	 	 
	 

	 	 	 	Title:	 	 	 	 
	 

	 	 	 	 	 	 	 	 





- 3 -









 






Information Relating to Purchasers




	 	 	 	 	 
	 

	 	Principal 

	Name and Address of Purchaser

	 	Amount of Series

	 

	 	                     Notes to

	 

	 	Be Purchased

	 
	 	 	 	 
	[Name of Purchaser]

	 	 	$	 







	(1)	 	All payments by wire transfer of
immediately available funds to:
	 
	 	 	with sufficient information to identify the
source and application of such funds.
	 
	(2)	 	All notices of payments and written
confirmations of such wire transfers:
	 
	(3)	 	All other communications:






Schedule A

(to Supplement)









 








Supplemental Representations




     The Company represents and warrants to each Purchaser that except as hereinafter set forth in
this Exhibit A, each of the representations and warranties set forth in Section 5 of the Note
Purchase Agreement is true and correct in all material respects as of the date hereof with respect
to the Series                      Notes with the same force and effect as if each reference to “Series 2005A
Notes” set forth therein was modified to refer the “Series                      Notes” and each reference to
“this Agreement” therein was modified to refer to the Note Purchase Agreement as supplemented by
the                      Supplement. The Section references hereinafter set forth correspond to the similar
sections of the Note Purchase Agreement which are supplemented hereby:



     Section 5.3. Disclosure. The Company, through its agent, Banc of America Securities LLC has
delivered to each Purchaser a copy of a Private Placement Memorandum, dated                                          (the
“Memorandum”), relating to the transactions contemplated by the                      Supplement. The Memorandum
fairly describes, in all material respects, the general nature of the business and principal
properties of the Company and its Restricted Subsidiaries. The Note Purchase Agreement, the
Memorandum, the documents, certificates or other writings delivered to each Purchaser by or on
behalf of the Company in connection with the transactions contemplated by the Note Purchase
Agreement and the                      Supplement and the financial statements listed in Schedule 5.5 to the
                    Supplement, taken as a whole, do not contain any untrue statement of a material fact or omit
to state any material fact necessary to make the statements therein not misleading in light of the
circumstances under which they were made. Since                                         , there has been no change in the
financial condition, operations, business, properties or prospects of the Company or any
Restricted Subsidiary except changes that individually or in the aggregate would not reasonably be
expected to have a Material Adverse Effect. There is no fact known to the Company that would
reasonably be expected to have a Material Adverse Effect that has not been set forth herein or in
the Memorandum or in the other documents, certificates and other writings delivered to each
Purchaser by or on behalf of the Company specifically for use in connection with the transactions
contemplated hereby.



     Section 5.4. Organization and Ownership of Shares of Subsidiaries. (a) Schedule 5.4 to the
                     Supplement contains (except as noted therein) complete and correct lists of (i) the
Company’s Restricted and Unrestricted Subsidiaries, and showing, as to each Subsidiary, the correct
name thereof, the jurisdiction of its organization, and the percentage of shares of each class of
its capital stock or similar equity interests outstanding owned by the Company and each other
Subsidiary, (ii) the Company’s Affiliates, other than Subsidiaries, and (iii) the Company’s
directors and senior officers.



     Section 5.13. Private Offering by the Company. Neither the Company nor anyone acting on its
behalf has offered the Series ___Notes or any similar securities for sale to, or solicited any
offer to buy any of the same from, or otherwise approached or negotiated in respect thereof with,
any Person other than the Purchasers and not more than [                    ] other Institutional Investors, each
of which has been offered the Series                      Notes at a private sale for investment. Neither the
Company nor anyone acting on its behalf has taken, or will take, any action that would



Exhibit A

(to Supplement)









 




subject the issuance or sale of the Notes to the registration requirements of Section 5 of the
Securities Act.




     Section 5.14. Use of Proceeds; Margin Regulations. The Company will apply the proceeds of the
sale of the Series                      Notes to                                                             and for general corporate
purposes. No part of the proceeds from the sale of the Series                      Notes pursuant to the                     
Supplement will be used, directly or indirectly, for the purpose of buying or carrying any margin
stock within the meaning of Regulation U of the Board of Governors of the Federal Reserve System
(12 CFR 221), or for the purpose of buying or carrying or trading in any securities under such
circumstances as to involve the Company in a violation of Regulation X of said Board (12 CFR 224)
or to involve any broker or dealer in a violation of Regulation T of said Board (12 CFR 220).
Margin stock does not constitute more than 5% of the value of the consolidated assets of the
Company and its Subsidiaries and the Company does not have any present intention that margin stock
will constitute more than 5% of the value of such assets. As used in this Section, the terms
“margin stock” and “purpose of buying or carrying” shall have the meanings assigned to them in said
Regulation U.



     Section 5.15. Existing Debt; Future Liens. (a) Schedule 5.15 to the                      Supplement sets
forth a complete and correct list of all outstanding Debt of the Company and its Restricted
Subsidiaries as of                                         , since which date there has been no Material change in the
amounts, interest rates, sinking funds, installment payments or maturities of the Debt of the
Company or its Restricted Subsidiaries. Neither the Company nor any Restricted Subsidiary is in
default and no waiver of default is currently in effect, in the payment of any principal or
interest on any Debt of the Company or such Subsidiary and no event or condition exists with
respect to any Debt of the Company or any Restricted Subsidiary that would permit (or that with
notice or the lapse of time, or both, would permit) one or more Persons to cause such Debt to
become due and payable before its stated maturity or before its regularly scheduled dates of
payment.



[Add any additional Sections as appropriate at the time the Series                      Notes are issued]









- 2 -









 











[Form of Series                      Note]




Eagle Materials Inc.




___% Series ______ Senior Note due ______________




			
	No. [                    ]
	 	[Date]
	$[                                        ]
	 	PPN [                                        ]






     For Value Received, the undersigned, Eagle Materials Inc., a corporation
organized and existing under the laws of the State of Delaware (herein called the “Company”),
hereby promises to pay to [                                        ], or registered assigns, the principal sum of
[                                        ] Dollars (or so much thereof as shall not have been prepaid) on
                    , with interest (computed on the basis of a 360-day year of twelve 30-day months)
(a) on the unpaid balance hereof at the rate of                     % per annum from the date hereof, payable
semiannually, on the                      day of                      and                      in each year, commencing on the first of such
dates after the date hereof, until the principal hereof shall have become due and payable, and (b)
to the extent permitted by law, at a rate per annum from time to time equal to [2% above the stated
rate], on any overdue payment of interest and, during the continuance of an Event of Default, on
the unpaid balance hereof and on any overdue payment of any Make-Whole Amount, payable
[semiannually] as aforesaid (or, at the option of the registered holder hereof, on demand).



     Payments of principal of, interest on and any Make-Whole Amount with respect to this Note are
to be made in lawful money of the United States of America at                                         , in
                                        , or at such other place as the Company shall have designated by written
notice to the holder of this Note as provided in the Note Purchase Agreement referred to below.



     This Note is one of a series of Senior Notes (the “Notes”) issued pursuant to a Supplement to
the Note Purchase Agreement dated as of November 15, 2005 (as from time to time amended,
supplemented or modified, the “Note Purchase Agreement”), between the Company, the Purchasers named
therein and Additional Purchasers of Notes from time to time issued pursuant to any Supplement to
the Note Purchase Agreement. This Note and the holder hereof are entitled equally and ratably with
the holders of all other Notes of all series from time to time outstanding under the Note Purchase
Agreement to all the benefits provided for thereby or referred to therein. Each holder of this
Note will be deemed, by its acceptance hereof, to have (i) agreed to the confidentiality provisions
set forth in Section 20 of the Note Purchase Agreement and (ii) made the representations set forth
in Sections 6.2 and 6.3 of the Note Purchase Agreement. Unless otherwise indicated, capitalized
terms used in this Note shall have the respective meanings ascribed to such terms in the Note
Purchase Agreement.



     This Note is registered with the Company and, as provided in the Note Purchase Agreement, upon
surrender of this Note for registration of transfer, duly endorsed, or



Exhibit A

(to Supplement)










 




accompanied by a written instrument of transfer duly executed, by the registered holder hereof
or such holder’s attorney duly authorized in writing, a new Note of the same series for a like
principal amount will be issued to, and registered in the name of, the transferee. Prior to due
presentment for registration of transfer, the Company may treat the person in whose name this Note
is registered as the owner hereof for the purpose of receiving payment and for all other purposes,
and the Company will not be affected by any notice to the contrary.




     The Company will make required prepayments of principal on the dates and in the amounts
specified in the Note Purchase Agreement. [This Note is not subject to regularly scheduled
prepayments of principal.] This Note is [also] subject to optional prepayment, in whole or from
time to time in part, at the times and on the terms specified in the Note Purchase Agreement, but
not otherwise.



     Pursuant to the Subsidiary Guaranty Agreement dated as of November 15, 2005 (as amended or
modified from time to time, the “Subsidiary Guaranty”), certain Subsidiaries of the Company have
absolutely and unconditionally guaranteed payment in full of the principal of, Make-Whole Amount,
if any, and interest on this Note and the performance by the Company of its obligations contained
in the Note Purchase Agreement all as more fully set forth in said Subsidiary Guaranty.



     If an Event of Default, as defined in the Note Purchase Agreement, occurs and is continuing,
the principal of this Note may be declared or otherwise become due and payable in the manner, at
the price (including any applicable Make-Whole Amount) and with the effect provided in the Note
Purchase Agreement.



     This Note shall be construed and enforced in accordance with, and the rights of the parties
shall be governed by, the law of the State of New York excluding choice-of-law principles of the
law of such State that would require the application of the laws of a jurisdiction other than such
State.



	 	 	 	 	 	 	 	 	 
	 	 	Eagle Materials Inc.	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 	 	 
	 

	 	 	 	 	 	 	 	 
	 

	 	 	 	Title:	 	 	 	 
	 

	 	 	 	 	 	 	 	 






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