NASDI HOLDINGS CORPORATION, A DELAWARE CORPORATION.
"NASDI RESTRUCTURING" MEANS, COLLECTIVELY, (I) THE BORROWER'S REPURCHASE ALL OF
THE CAPITAL STOCK OF NORTH AMERICAN SITE DEVELOPERS, INC. OWNED BY BERARDI FOR
$5,000, (II) THE CONVERSION OF APPROXIMATELY $28,000,000 OF INTERCOMPANY
INDEBTEDNESS OWING BY NORTH AMERICAN SITE DEVELOPERS, INC. TO THE BORROWER INTO
CAPITAL STOCK OF NORTH AMERICAN SITE DEVELOPERS, INC., (III) THE BORROWER'S
CONTRIBUTION OF ALL OF THE ISSUED AND OUTSTANDING SHARES OF CAPITAL STOCK OF
NORTH AMERICAN SITE DEVELOPERS, INC., A MASSACHUSETTS CORPORATION, TO NASDI
HOLDINGS, (IV) THE CONVERSION OF NORTH AMERICAN SITE DEVELOPERS, INC., A
MASSACHUSETTS CORPORATION, INTO NORTH AMERICAN SITE DEVELOPERS, LLC, A DELAWARE
LIMITED LIABILITY COMPANY AND (V) THE ADMISSION OF BERARDI AS A MEMBER OF NASDI
AND THE ISSUANCE TO BERARDI OF A 35% NON-VOTING PROFITS INTEREST IN NASDI.
2.
EFFECTIVENESS OF THIS AGREEMENT;
CONDITIONS PRECEDENT.
THE PROVISIONS OF SECTION 1 OF THIS AGREEMENT SHALL BE
DEEMED TO HAVE BECOME EFFECTIVE AS OF THE DATE FIRST WRITTEN ABOVE (THE
"EFFECTIVE DATE"), BUT SUCH EFFECTIVENESS SHALL BE EXPRESSLY CONDITIONED UPON
THE ADMINISTRATIVE AGENT'S RECEIPT OF EACH OF THE FOLLOWING, IN EACH CASE IN
FORM, SUBSTANCE AND SCOPE REASONABLY ACCEPTABLE TO THE ADMINISTRATIVE AGENT:
(A)
EXECUTED COUNTERPARTS OF THIS AGREEMENT
EXECUTED BY AUTHORIZED OFFICERS OF THE BORROWER AND THE OTHER LOAN PARTIES, AND
BY DULY AUTHORIZED OFFICERS OF THE REQUIRED PREPAYMENT LENDERS; AND
(B)
PAYMENT IN FULL FROM THE BORROWER, IN
IMMEDIATELY AVAILABLE FUNDS, OF AN AMENDMENT FEE PAYABLE TO EACH LENDER
(COLLECTIVELY, THE "CONSENTING LENDERS") EXECUTING AND DELIVERING A COUNTERPART
SIGNATURE PAGE TO THIS AGREEMENT ON OR BEFORE 1:00 (CHICAGO, ILLINOIS
4
TIME) ON MONDAY NOVEMBER 14, 2005 IN AN AMOUNT EQUAL TO 0.075% OF THE SUM OF
SUCH LENDER'S REVOLVING COMMITMENT, PLUS THE OUTSTANDING PRINCIPAL BALANCE OF
SUCH LENDER'S TRANCHE B TERM LOAN (THE "AMENDMENT FEE").
3.
REPRESENTATIONS, WARRANTIES AND
COVENANTS.
(A)
THE BORROWER AND EACH OTHER LOAN PARTY
HEREBY REPRESENTS AND WARRANTS THAT THIS AGREEMENT AND THE CREDIT AGREEMENT AS
AMENDED HEREBY (COLLECTIVELY, THE "AMENDMENT DOCUMENTS") CONSTITUTE LEGAL, VALID
AND BINDING OBLIGATIONS OF THE BORROWER AND THE OTHER LOAN PARTIES ENFORCEABLE
AGAINST THE BORROWER AND THE OTHER LOAN PARTIES IN ACCORDANCE WITH THEIR TERMS.
(B)
THE BORROWER AND EACH OTHER LOAN PARTY
HEREBY REPRESENTS AND WARRANTS THAT (I) ITS EXECUTION, DELIVERY AND PERFORMANCE
OF THIS AGREEMENT AND THE CREDIT AGREEMENT HAVE BEEN DULY AUTHORIZED BY ALL
PROPER CORPORATE OR LIMITED LIABILITY COMPANY ACTION, DO NOT VIOLATE ANY
PROVISION OF ITS ORGANIZATIONAL DOCUMENTS, WILL NOT VIOLATE ANY LAW, REGULATION,
COURT ORDER OR WRIT APPLICABLE TO IT, AND WILL NOT REQUIRE THE APPROVAL OR
CONSENT OF ANY GOVERNMENTAL AGENCY, OR OF ANY OTHER THIRD PARTY UNDER THE TERMS
OF ANY CONTRACT OR AGREEMENT TO WHICH IT OR ANY OF ITS AFFILIATES IS BOUND
(WHICH HAS NOT BEEN PREVIOUSLY OBTAINED), INCLUDING WITHOUT LIMITATION, THE NOTE
INDENTURE AND THE BONDING AGREEMENT AND (II) AFTER GIVING EFFECT TO THE
AMENDMENTS CONTEMPLATED BY SECTION 1 OF THIS AGREEMENT, ALL OBLIGATIONS WILL
CONSTITUTE, AND IF THE FULL AMOUNT OF THE REVOLVING COMMITMENT