ELEVENTH AMENDMENT TO LOAN AND SECURITY AGREEMENT AND SEVENTH AMENDMENT TO GUARANTY AND SECURITY AGREEMENT

Exhibit 4.9.11

[EXECUTION COPY]

ELEVENTH AMENDMENT TO LOAN AND SECURITY AGREEMENT AND SEVENTH AMENDMENT TO GUARANTY AND SECURITY AGREEMENT

THIS ELEVENTH AMENDMENT TO LOAN AND SECURITY AGREEMENT AND SEVENTH AMENDMENT TO GUARANTY AND SECURITY AGREEMENT (this “Amendment”), dated as of March 2, 2015 is entered into by and among the Lenders signatory hereto, BANK OF AMERICA, N.A., as Agent for the Lenders (in such capacity, “Agent”), HEADWATERS CONSTRUCTION MATERIALS, INC., a Utah corporation (“HCM”), TAPCO INTERNATIONAL CORPORATION, a Michigan corporation (“Tapco”), HEADWATERS RESOURCES, INC., a Utah corporation (“HRI”, and together with HCM, Tapco, and each of HRI’s, HCM’s and Tapco’s subsidiaries identified on the signature pages hereof, each individually a “Borrower”, and collectively, the “Borrowers”), the other Borrowers signatory hereto, HEADWATERS INCORPORATED, a Delaware corporation (“Parent”) HEADWATERS PLANT SERVICES, INC., a Utah corporation (“HPS”) and ▇▇▇▇▇▇ ROOF PRODUCTS, LLC, a Utah limited liability company (“GRP” and together with Parent and HPS, each individually a “Guarantor”, and collectively, the “Guarantors”).

RECITALS

A.                                    Borrowers, Agent and the lenders party thereto from time to time (each a “Lender” and collectively the “Lenders”) have previously entered into that certain Loan and Security Agreement dated as of October 27, 2009 (as amended, supplemented, restated and modified from time to time, the “Loan Agreement”), pursuant to which the Lenders have made certain loans and financial accommodations available to Borrowers.  Terms used herein without definition shall have the meanings ascribed to them in the Loan Agreement (as amended hereby).

B.                                    Guarantors and Agent have previously entered into that certain Guaranty and Security Agreement dated as of October 27, 2009 (as amended, supplemented, restated and modified from time to time, the “Guaranty”), pursuant to which Guarantors have guarantied the loans and other financial accommodations made available to Borrowers by Agent and the Lenders.

C.                                    Borrowers have requested that Agent and the Lenders amend the Loan Agreement and Guarantors have requested that Agent and the Lenders amend the Guaranty, which Agent and the Lenders are willing to do pursuant to the terms and conditions set forth herein.

D.                                    Borrowers and Guarantors are entering into this Amendment with the understanding and agreement that, except as specifically provided herein, none of Agent’s or any Lender’s rights or remedies as set forth in the Loan Agreement or the Guaranty are being waived or modified by the terms of this Amendment.

AGREEMENT

NOW, THEREFORE, in consideration of the foregoing and the mutual covenants herein contained, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereby agree as follows:

1.                                      Amendments to Loan Agreement.  Subject to the satisfaction of the conditions set forth in Section 4 of this Amendment, the Loan Agreement (but not including any Exhibits or Schedules thereto unless expressly provided herein) is hereby amended as set forth in Exhibit A attached hereto such that all of the newly inserted bold, double-underlined text (indicated textually in the same manner as the following example: double-underlined text) and any formatting changes attached hereto shall be deemed to be inserted in the text of the Loan Agreement and all of the deleted stricken text (indicated textually in

the same manner as the following example: stricken text) shall be deemed to be deleted from the text of the Loan Agreement.  Unmarked drafts of the Loan Agreement (but not including any Exhibits or Schedules thereto, except as provided below), as amended by this Amendment, are attached hereto as Exhibit B.  The Borrowers may amend Schedule 9.1.15 to the Loan Agreement by delivering an updated version thereof that includes a description of each of the “Term Loan B Documents”, the “Term Loan B Hedge” and “Convertible Notes” (as applicable) each as defined in the Loan Agreement, promptly upon entry into each agreement.

2.                                      Amendments to Guaranty.  Subject to the satisfaction of the conditions set forth in Section 4 of this Amendment, the Guaranty (but not including any Schedules or Annexes thereto) is hereby amended as set forth in Exhibit C attached hereto such that all of the newly inserted bold, double-underlined text (indicated textually in the same manner as the following example: double-underlined text) and any formatting changes attached hereto shall be deemed to be inserted in the text of the Guaranty and all of the deleted stricken text (indicated textually in the same manner as the following example: stricken text) shall be deemed to be deleted from the text of the Guaranty.  Unmarked drafts of the Guaranty (but not including any Schedules or Annexes thereto), as amended by this Amendment, are attached hereto as Exhibit D.

3.                                      Delivery of Documents.  The Borrowers hereby covenant and agree to deliver true and correct copies of (i) the executed Term Loan B Documents, and the documents governing the Convertible Notes Debt, Term Loan B Hedge, Specified Notes Hedge Transaction and Specified Warrant Transaction promptly after the effectiveness thereof and (ii) any updates to the term sheet for the Term Loan B delivered pursuant to Section 5(f) promptly after the agreement thereof.

4.                                      Effectiveness of this Amendment.  The following shall have occurred before this Amendment is effective:

(a)                                 Amendment.  Agent shall have received this Amendment, executed by Borrowers, Guarantors and the Lenders in a sufficient number of counterparts for distribution to all parties.

(b)                                 Corporate Authority Documents.  Agent shall have received a certificate of a duly authorized officer of each Obligor, in form and substance satisfactory to Agent, certifying (i) that attached copies of such Obligor’s Organic Documents are true and complete, and in full force and effect, without amendment except as shown; (ii) that an attached copy of resolutions authorizing execution and delivery of the Loan Documents is true and complete, and that such resolutions are in full force and effect, were duly adopted, have not been amended, modified or revoked, and constitute all resolutions adopted with respect to this credit facility; and (iii) to the title, name and signature of each Person authorized to sign the Loan Documents.

(c)                                  [Reserved].

(d)                                 Representations and Warranties.  The representations and warranties set forth herein must be true and correct.

(e)                                  No Default.  No event has occurred and is continuing that constitutes an Event of Default.

(f)                                   Payment of Fees.  Borrowers shall have paid all fees and expenses to be paid to Agent and Lenders on or prior to the Eleventh Amendment Effective Date.

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(g)                                  Other Required Documentation.  All other documents and legal matters in connection with the transactions contemplated by this Amendment shall have been delivered or executed or recorded and shall be in form and substance satisfactory to Agent.

5.                                      Representations and Warranties.  Each Borrower and each Guarantor represents and warrants as follows:

(a)                                 Authority.  Each Borrower and each Guarantor has the requisite power and authority to execute and deliver this Amendment, and to perform its obligations hereunder and under the Loan Documents (as amended or modified hereby) to which it is a party.  The execution, delivery and performance by each Borrower and each Guarantor of this Amendment have been duly approved by all necessary action and no other proceedings are necessary to consummate such transactions.

(b)                                 Enforceability.  This Amendment has been duly executed and delivered by each Borrower and each Guarantor.  This Amendment and each Loan Document to which each Borrower or each Guarantor is a party (as amended or modified hereby) is the legal, valid and binding obligation of such Borrower and such Guarantor, enforceable against such Borrower and such Guarantor in accordance with its terms, except as enforceability may be limited by bankruptcy, insolvency or similar laws affecting the enforcement of creditors’ rights generally or by general principles of equity, and is in full force and effect.

(c)                                  Representations and Warranties.  The representations and warranties contained in each Loan Document to which each Borrower or each Guarantor is a party (other than any such representations or warranties that, by their terms, are specifically made as of a date other than the date hereof) are correct on and as of the date hereof as though made on and as of the date hereof.

(d)                                 Due Execution.  The execution, delivery and performance of this Amendment are within the power of each Borrower and each Guarantor, have been duly authorized by all necessary corporate action, have received all necessary governmental approval, if any, and do not contravene any law or any contractual restrictions binding on such Borrower or such Guarantor.

(e)                                  No Default.  No event has occurred and is continuing that constitutes an Event of Default.

(f)                                   Term Sheet for Term Loan B.  Attached hereto as Exhibit E is a true, correct and complete copy of the term sheet for the Term Loan B as of the date hereof.

6.                                      Post-Closing Conditions.  Each Borrower and Guarantor covenants and agrees that such Borrower and Guarantor shall deliver or cause to be delivered to the Agent, a written opinion of Pillsbury ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ LLP, as well as local counsel to Borrowers and Parent in Utah and Michigan, each such written opinion in form and substance satisfactory to Agent, on or before the earlier of: (x) the date that is thirty (30) days following the date hereof and (y) the closing date of the Term Loan B.

7.                                      Choice of Law.  The validity of this Amendment, its construction, interpretation and enforcement, the rights of the parties hereunder, shall be determined under, governed by, and construed in accordance with the internal laws of the State of California, without giving effect to any conflict of law principles (but giving effect to Federal laws relating to national banks).  The consent to forum and arbitration provisions set forth in Section 14.15 of the Loan Agreement are hereby incorporated in this Amendment by reference.

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8.                                      Counterparts.  This Amendment may be executed in any number of counterparts and by different parties and separate counterparts, each of which when so executed and delivered, shall be deemed an original, and all of which, when taken together, shall constitute one and the same instrument.  Delivery of an executed counterpart of a signature page to this Amendment by telefacsimile or a substantially similar electronic transmission shall have the same force and effect as the delivery of an original executed counterpart of this Amendment.  Any party delivering an executed counterpart of this Amendment by telefacsimile or a substantially similar electronic transmission shall also deliver an original executed counterpart, but the failure to do so shall not affect the validity, enforceability or binding effect of such agreement.

9.                                      Reference to and Effect on the Loan Documents.

(a)                                 Upon and after the effectiveness of this Amendment, each reference in the Loan Agreement to “this Agreement”, “hereunder”, “hereof” or words of like import referring to the Loan Agreement, and each reference in the other Loan Documents to “the Loan Agreement”, “thereof” or words of like import referring to the Loan Agreement, shall mean and be a reference to the Loan Agreement as modified and amended hereby.  Upon and after the effectiveness of this Amendment, each reference in the Guaranty to “this Agreement”, “hereunder”, “hereof” or words of like import referring to the Guaranty, and each reference in the other Loan Documents to “the Guaranty”, “thereof” or words of like import referring to the Guaranty, shall mean and be a reference to the Guaranty as modified and amended hereby.

(b)                                 Except as specifically amended above, the Loan Agreement, the Guaranty and all other Loan Documents are and shall continue to be in full force and effect and are hereby in all respects ratified and confirmed and shall constitute the legal, valid, binding and enforceable obligations of Guarantors and Borrowers, as applicable, to Agent and the Lenders.

(c)                                  The execution, delivery and effectiveness of this Amendment shall not, except as expressly provided herein, operate as a waiver of any right, power or remedy of Agent or any Lender under any of the Loan Documents, nor constitute a waiver of any provision of any of the Loan Documents.

(d)                                 To the extent that any terms and conditions in any of the Loan Documents shall contradict or be in conflict with any terms or conditions of the Loan Agreement and Guaranty, after giving effect to this Amendment, such terms and conditions are hereby deemed modified or amended accordingly to reflect the terms and conditions of the Loan Agreement and Guaranty as modified or amended hereby.

10.                               Ratification.  Each Borrower hereby restates, ratifies and reaffirms each and every term and condition set forth in the Loan Agreement, as amended hereby, and the Loan Documents effective as of the date hereof, and each Guarantor hereby restates, ratifies and reaffirms each and every term and condition set forth in the Guaranty, as amended hereby, and the Loan Documents effective as of the date hereof.

11.                               Estoppel.  To induce Lenders to enter into this Amendment and to continue to make advances to Borrowers under the Loan Agreement, each Borrower and each Guarantor hereby acknowledges and agrees that, as of the date hereof, there exists no right of offset, defense, counterclaim or objection in favor of such Borrower or such Guarantor as against Agent or any Lender with respect to the Obligations.

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12.                               Integration.  This Amendment, together with the other Loan Documents, incorporates all negotiations of the parties hereto with respect to the subject matter hereof and is the final expression and agreement of the parties hereto with respect to the subject matter hereof.

13.                               Severability.  In case any provision in this Amendment shall be invalid, illegal or unenforceable, such provision shall be severable from the remainder of this Amendment and the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.

14.                               Notice Address of Agent.  Pursuant to Section 14.3.1 of the Loan Agreement, Agent hereby notifies each party hereto that its address for notices is as follows:  Bank of America, N.A., IL4-135-09-27, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ and Fax: (▇▇▇) ▇▇▇-▇▇▇▇.

[Remainder of Page Left Intentionally Blank]

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IN WITNESS WHEREOF, the parties have entered into this Amendment as of the date first above written.

Headwaters — Signature Page to Eleventh Amendment to LSA and Seventh Amendment to GSA

Headwaters — Signature Page to Eleventh Amendment to LSA and Seventh Amendment to GSA

Headwaters — Signature Page to Eleventh Amendment to LSA and Seventh Amendment to GSA

Headwaters — Signature Page to Eleventh Amendment to LSA and Seventh Amendment to GSA

Headwaters — Signature Page to Eleventh Amendment to LSA and Seventh Amendment to GSA

Headwaters — Signature Page to Eleventh Amendment to LSA and Seventh Amendment to GSA

EXHIBIT B

[EXECUTION COPY]

Conformed Copy through the Eleventh Amendment

HEADWATERS CONSTRUCTION MATERIALS, INC.

TAPCO INTERNATIONAL CORPORATION

HEADWATERS RESOURCES, INC., and

EACH OF THEIR RESPECTIVE SUBSIDIARIES

IDENTIFIED ON THE SIGNATURE PAGES HEREOF,

as Borrowers

LOAN AND SECURITY AGREEMENT

Dated as of October 27, 2009

$70,000,000

CERTAIN FINANCIAL INSTITUTIONS,

as Lenders

and

BANK OF AMERICA, N.A.,

as Administrative Agent and Sole Lead Arranger

TABLE OF CONTENTS

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LIST OF EXHIBITS AND SCHEDULES

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LOAN AND SECURITY AGREEMENT

THIS LOAN AND SECURITY AGREEMENT is dated as of October 27, 2009, among HEADWATERS CONSTRUCTION MATERIALS, INC., a Utah corporation (“HCM”), TAPCO INTERNATIONAL CORPORATION, a Michigan corporation (“Tapco”), HEADWATERS RESOURCES, INC., a Utah corporation (“HRI”, and together with HCM, Tapco, and each of HRI’s, HCM’s and Tapco’s Subsidiaries identified on the signature pages hereof, each individually a “Borrower”, and collectively, the “Borrowers”), the financial institutions party to this Agreement from time to time as lenders (collectively, “Lenders”), and BANK OF AMERICA, N.A., a national banking association, as administrative agent for the Lenders (in such capacity, “Agent”) and as sole lead arranger.

R E C I T A L S:

Borrowers have requested that Lenders provide a credit facility to Borrowers to finance their mutual and collective business enterprise.  Lenders are willing to provide the credit facility on the terms and conditions set forth in this Agreement.

NOW, THEREFORE, for valuable consideration hereby acknowledged, the parties agree as follows:

SECTION 1.                         DEFINITIONS; RULES OF CONSTRUCTION

1.1.                            Definitions.  As used herein, the following terms have the meanings set forth below:

2013 Senior Notes Conditions: the following conditions for 2013 Senior Notes Debt: (a) all such Debt is in an aggregate principal amount that does not exceed $200,000,000; (b) all of the proceeds of such Debt are used (i) for working capital and other lawful corporate purposes of Borrowers and Parent (including Permitted Acquisitions), and (ii) to pay reasonable, documented, out-of-pocket costs and expenses incurred by Borrowers or Parent in connection with the issuance of such Debt, including tender premiums, consent payments, redemption premiums and accrued and unpaid interest; (c) any such Debt has a final maturity no sooner than, a weighted average life no less than, and an interest rate no greater than, the Senior Notes Refinancing Debt (except that Parent’s 7 1/4% Senior Notes due 2019 shall be permitted to have a final maturity date of January 15, 2019); (d) any such Debt is subordinated to the Obligations at least to the same extent as that permissible for the Senior Notes Refinancing Debt; (e) all such Debt is either (i) unsecured, or (ii) subject to the Intercreditor Agreement; (f) the representations, covenants and defaults applicable to any such Debt are no less favorable to Borrowers than those permissible for the Senior Notes Refinancing Debt; (g) no additional Lien is granted to secure any such Debt other than Liens that are permissible under the Senior Notes Refinancing Debt; (h) no additional Person is obligated on any such Debt other than Persons who are permitted to be obligated under the Senior Notes Refinancing Debt; (i) upon giving effect to any such Debt, no Default or Event of Default exists; (j) all such Debt has been incurred on or prior to the date that is one hundred eighty (180) days after the Eighth Amendment Effective Date; and (k) on a pro forma basis the Fixed Charge Coverage Ratio (but calculated to include one year’s projected interest on such Debt as a Fixed Charge), measured on a trailing twelve (12) month basis after giving effect to the incurrence of such Debt and recomputed for the most recent month for which financial statements have been delivered to Agent, is greater than 1.00 to 1.00.

2013 Senior Notes Debt: Borrowed Money that satisfies each of the 2013 Senior Notes Conditions.

Account: as defined in the UCC, including all rights to payment for goods sold or leased, or for services rendered.

Account Debtor: a Person who is obligated under an Account, Chattel Paper or General Intangible.

Acquisition: any transaction, or any series of related transactions, consummated on or after the Closing Date, by which any Obligor (i) acquires any going business or all or substantially all of the assets of any firm, corporation or limited liability company, or division thereof, whether through purchase of assets, merger or otherwise or (ii) acquires all or substantially all of the Equity Interests of any other Person.

Affiliate: with respect to any Person, another Person that directly, or indirectly through one or more intermediaries, Controls or is Controlled by or is under common Control with the Person specified.  “Control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ability to exercise voting power, by contract or otherwise.  “Controlling” and “Controlled” have correlative meanings.

Agent Indemnitees: Agent and its officers, directors, employees, Affiliates, agents and attorneys.

Agent Professionals: attorneys, accountants, appraisers, auditors, business valuation experts, environmental engineers or consultants, turnaround consultants, and other professionals and experts retained by Agent.

Allocable Amount: as defined in Section 5.11.3.

Anti-Terrorism Laws: any laws relating to terrorism or money laundering, including the Patriot Act.

Applicable Law: with respect to a Person, all laws, rules, regulations and governmental guidelines applicable to such Person or its conduct, transaction, agreement or matter in question, including all applicable statutory law, common law and equitable principles, and all provisions of constitutions, treaties, statutes, rules, regulations, orders and decrees of Governmental Authorities.

Applicable Margin: with respect to any Type of Loan, the respective margin set forth in the grid below, as determined by the Availability Ratio for the last calendar quarter:

Until December 31, 2013, margins shall be determined as if Level I were applicable regardless of the Availability Ratio for the last calendar quarter.  Thereafter, margins shall be subject to increase or decrease based upon the Availability Ratio for the prior calendar quarter, as determined by Agent based upon the records of Agent.  If, by the first day of a calendar quarter, any Borrowing Base Certificate due

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in the preceding calendar quarter has not been received, then, at the option of Agent or Required Lenders, the margins shall be determined as if Level III were applicable, from such day until the first day of the calendar month following actual receipt.

Approved Fund: any Person (other than a natural person) that is engaged in making, purchasing, holding or otherwise investing in commercial loans and similar extensions of credit in its ordinary course of activities, and is administered or managed by a Lender, an entity that administers or manages a Lender, or an Affiliate of either.

Asset Disposition: a sale, lease, license, consignment, transfer or other disposition of Property of an Obligor, including a disposition of Property in connection with a sale-leaseback transaction or synthetic lease, but excluding any (i) damage to, or loss of or destruction, or loss of title to, physical property of any Borrower or Guarantor, and (ii) taking of any property of any Borrower or Guarantor or any portion thereof, in or by condemnation or other eminent domain proceedings pursuant to any law, general or special, or by reason of the temporary requisition or use of any property of any Borrower or any Guarantor or any portion thereof by an Governmental Authority.

Assignment and Acceptance: an assignment agreement between a Lender and Eligible Assignee, in the form of Exhibit B.

Availability: the Borrowing Base minus the principal balance of all Revolver Loans.

Availability Block: at Agent’s election, in its sole discretion, a reserve in an amount equal to 10% of the aggregate Revolver Commitments, to be imposed during any Availability Block Period.

Availability Block Commencement Date:  any day that (a) the Excess Availability is less than 40% of the Revolver Commitment and (b) at any time after the occurrence of an initial Availability Block Period, a Default or an Event of Default occurs.

Availability Block Period: the period (a) commencing on the Availability Block Commencement Date and (b) ending on the related Availability Block Termination Date.

Availability Block Termination Date:  any day following an Availability Block Commencement Date when both (a) no Defaults or Events of Default are continuing, and (b) for each day during the two consecutive calendar month period preceding such date the Excess Availability is greater than 50% of the Revolver Commitment.

Availability Ratio: the ratio (expressed as a percentage), for any calendar quarter, of (a) the average daily Availability for such calendar quarter to (b) an amount equal to the average daily aggregate Revolver Commitments for such calendar quarter.

Availability Reserve: the sum (without duplication) of:

(a)                                 the Inventory Reserve;

(b)                                 the Rent and Charges Reserve;

(c)                                  the LC Reserve;

(d)                                 the Bank Product Reserve;

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(e)                                  all accrued Royalties (if any), whether or not then due and payable by a Borrower, arising under any license or agreement under which a Borrower is authorized to use Intellectual Property in connection with any manufacture, marketing, distribution or disposition of Collateral;

(f)                                   the aggregate amount of liabilities secured by: (i) Liens upon Revolver Priority Collateral that are senior to Agent’s Liens, and (ii) Liens (other than Permitted Liens) upon any other Collateral that are senior to Agent’s Liens; but in each case, imposition of any such reserve shall not waive an Event of Default arising therefrom;

(g)                                  the Dilution Reserve;

(h)                                 the Litigation Reserve;

(i)                                     reserves on account of Canadian engineering certifications;

(j)                                    all sales, excise or similar taxes included in the amount of any Accounts reported to Agent;

(k)                                 the Availability Block;

(l)                                     the Fly Ash Commission Reserve;

(m)                             the Term Debt Reserve; and

(n)                                 such additional reserves, in such amounts and with respect to such matters, as Agent in its Credit Judgment may elect to impose from time to time.

Bank of America: Bank of America, N.A., a national banking association, and its successors and assigns.

Bank of America Indemnitees: Bank of America and its officers, directors, employees, Affiliates, agents and attorneys.

Bank Product: any of the following products, services or facilities extended to any Borrower, Guarantor or any Subsidiary of any Borrower or Guarantor by any Lender or any of its Affiliates: (a) Cash Management Services; (b) products under Hedging Agreements; (c) commercial credit card and merchant card services; (d) electronic business-to-business payment and financing systems; and (e) other banking products or services as may be requested by any Borrower or Subsidiary, other than (i) loans, (ii) Letters of Credit and (iii) equipment leases and services and obligations related thereto; provided, however, that for any of the foregoing to be included as an “Obligation” for purposes of a distribution under Section 5.6.1, the applicable Secured Party and Obligor must have previously (i) provided written notice to Agent of (A) the existence of such Bank Product, (B) the maximum dollar amount of obligations arising thereunder to be included as part of the Bank Product Reserve (“Bank Product Amount”), and (C) the methodology to be used by such parties in determining the Bank Product Debt owing from time to time and (ii) received Agent’s approval of such Bank Product Amount.  The Bank Product Amount may be changed from time to time, with Agent’s consent, upon written notice to Agent by the Secured Party and Obligor (or its Subsidiary).

Bank Product Amount: as defined in the definition of Bank Product.

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Bank Product Debt: Debt and other obligations of any Borrower, Guarantor or any Subsidiary of any Borrower or Guarantor relating to Bank Products.

Bank Product Reserve: the aggregate amount of reserves established by Agent from time to time in its discretion in respect of Bank Product Debt, which shall be at least equal to the sum of all Bank Product Amounts.

Bankruptcy Code: Title 11 of the United States Code.

Base Rate: for any day, a per annum rate equal to the greatest of (a) the Prime Rate for such day; (b) the Federal Funds Rate for such day, plus 0.50%; or (c) LIBOR for a 30 day interest period as determined on such day, plus 1.0%.

Base Rate Loan: any Loan that bears interest based on the Base Rate.

Base Rate Revolver Loan: a Revolver Loan that bears interest based on the Base Rate.

Board of Governors: the Board of Governors of the Federal Reserve System.

Borrowed Money: with respect to any Obligor, without duplication, its (a) Debt that (i) arises from the lending of money by any Person to such Obligor, (ii) is evidenced by notes, drafts, bonds, debentures, credit documents or similar instruments, (iii) accrues interest or is a type upon which interest charges are customarily paid (excluding trade payables owing in the Ordinary Course of Business), or (iv) was issued or assumed as full or partial payment for Property; (b) Capital Leases; (c) reimbursement obligations with respect to letters of credit; and (d) guaranties of any Debt of the foregoing types owing by another Person.

Borrower Agent: as defined in Section 4.4.

Borrower Groups: each of the Eldorado Group, the HRI Group, the SCP Group, and the Tapco Group.

Borrowing: a group of Loans of one Type that are made on the same day or are converted into Loans of one Type on the same day.

Borrowing Base: on any date of determination, an amount equal to the lesser of (a) the aggregate amount of Revolver Commitments, minus the LC Reserve, minus the Litigation Reserve, minus the Availability Block, minus the Fly Ash Reserve, minus the Term Debt Reserve; or (b) the sum of the HRI Borrowing Base, plus the Tapco Borrowing Base, plus the Eldorado Borrowing Base, plus the SCP Borrowing Base, plus 100% of Pledged Cash, minus the Availability Reserve.

Borrowing Base Certificate: a certificate, in form and substance satisfactory to Agent, by which Borrowers certify calculation of the Borrowing Base.

Business Day: any day other than a Saturday, Sunday or other day on which commercial banks are authorized to close under the laws of, or are in fact closed in, North Carolina and California, and if such day relates to a LIBOR Loan, any such day on which dealings in Dollar deposits are conducted between banks in the London interbank Eurodollar market.

Capital Expenditures: all liabilities incurred, expenditures made or payments due (whether or not made) by Parent or Subsidiary of Parent for the acquisition of any fixed assets, or any improvements,

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replacements, substitutions or additions thereto with a useful life of more than one year, including the principal portion of Capital Leases.  For the purpose of this definition, the purchase price of Property which is acquired simultaneously with the trade-in of existing Property owned by such Person or any of its Subsidiaries or with insurance proceeds shall be included in Capital Expenditures only to the extent of the gross amount of such purchase price less the credit granted by the seller of such Property being traded in at such time or the amount of such proceeds, as the case may be.

Capital Lease: any lease that is required to be capitalized for financial reporting purposes in accordance with GAAP.

Cash Collateral: cash that is delivered to Agent to Cash Collateralize any Obligations and any interest or other income earned on such cash.

Cash Collateral Account: a demand deposit, money market or other account established by Agent at such financial institution as Agent may select in its discretion, which account shall be subject to Agent’s Liens for the benefit of Secured Parties.

Cash Collateralize: the delivery of cash to Agent, as security for the payment of Obligations, in an amount equal to (a) with respect to LC Obligations, 105% of the aggregate LC Obligations, and (b) with respect to any inchoate, contingent or other Obligations (including Obligations arising under Bank Products), Agent’s good faith estimate of the amount due or to become due, including all fees and other amounts relating to such Obligations.  “Cash Collateralization” has a correlative meaning.

Cash Equivalents: (a) marketable obligations issued or unconditionally guaranteed by, and backed by the full faith and credit of, the United States government, maturing within 12 months of the date of acquisition; (b) certificates of deposit, time deposits and bankers’ acceptances maturing within 12 months of the date of acquisition, and overnight bank deposits, in each case which are issued by a commercial bank organized under the laws of the United States or any state or district thereof, rated A-1 (or better) by S&P or P-1 (or better) by ▇▇▇▇▇’▇ at the time of acquisition, and (unless issued by a Lender) not subject to offset rights; (c) repurchase obligations with a term of not more than 30 days for underlying investments of the types described in clauses (a) and (b) entered into with any bank meeting the qualifications specified in clause (b); (d) commercial paper rated A-1 (or better) by S&P or P-1 (or better) by ▇▇▇▇▇’▇, and maturing within nine months of the date of acquisition; and (e) shares of any money market fund that has substantially all of its assets invested continuously in the types of investments referred to above, has net assets of at least $500,000,000 and has the highest rating obtainable from either ▇▇▇▇▇’▇ or S&P.

Cash Management Services: any services provided from time to time by any Lender or any of its Affiliates to any Borrower, Guarantor or any Subsidiary of any Borrower or Guarantor in connection with operating, collections, payroll, trust, or other depository or disbursement accounts, including automated clearinghouse, e-payable, electronic funds transfer, wire transfer, controlled disbursement, overdraft, depository, information reporting, lockbox and stop payment services.

CERCLA: the Comprehensive Environmental Response Compensation and Liability Act (42 U.S.C. § 9601 et seq.).

Change in Law: the occurrence, after the date hereof, of (a) the adoption or taking effect of any law, rule, regulation or treaty; (b) any change in any law, rule, regulation or treaty or in the administration, interpretation or application thereof by any Governmental Authority; or (c) the making or issuance of any request, guideline or directive (whether or not having the force of law) by any Governmental Authority.

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Change of Control: (a) a majority of the board of directors of Parent fails to consist of Continuing Directors, (b) any “person” or “group” (within the meaning of Sections 13(d) and 14(d) of the Securities Exchange Act of 1934) becomes the “beneficial owner” (as defined in Rule 13d-3 under the Securities Exchange Act of 1934), directly or indirectly, of 35%, or more, of the Equity Interests of Parent having the right to vote for the election of members of the board of directors of Parent, (c) other than pursuant to a transaction permitted under Section 10.2.10, Parent fails to own and control, directly or indirectly, 100% (or, to the extent a lesser percentage is acquired in connection with a Permitted Acquisition, such lesser percentage) of the Equity Interests of each Borrower and each Guarantor (other than Parent), or (d) any “change of control” occurs under the Term Loan B Documents or any document governing Senior Notes Refinancing Debt, 2013 Senior Note Debt, Convertible Notes Debt or Term Loan B Hedge Debt.

Claims: all liabilities, obligations, losses, damages, penalties, judgments, proceedings, interest, costs and expenses of any kind (including remedial response costs, reasonable attorneys’ fees and Extraordinary Expenses) at any time (including after Full Payment of the Obligations, resignation or replacement of Agent, or replacement of any Lender) incurred by or asserted against any Indemnitee in any way relating to (a) any Loans, Letters of Credit, Loan Documents, or the use thereof or transactions relating thereto, (b) any action taken or omitted to be taken by any Indemnitee in connection with any Loan Documents, (c) the existence or perfection of any Liens, or realization upon any Collateral, (d) exercise of any rights or remedies under any Loan Documents or Applicable Law, or (e) failure by any Obligor to perform or observe any terms of any Loan Document, in each case including all costs and expenses relating to any investigation, litigation, arbitration or other proceeding (including an Insolvency Proceeding or appellate proceedings), whether or not the applicable Indemnitee is a party thereto.

Closing Date: as defined in Section 6.1.

Code: the Internal Revenue Code of 1986.

Collateral: all Property described in Section 7.1, all Property described in any Security Documents as security for any Obligations, and all other Property that now or hereafter secures (or is intended to secure) any Obligations.

Commitment: for any Lender, the aggregate amount of such Lender’s Revolver Commitment.  “Commitments” means the aggregate amount of all Revolver Commitments.

Commitment Termination Date: the earliest to occur of (a) the Revolver Termination Date; (b) the date on which Borrowers terminate the Revolver Commitments pursuant to Section 2.1.4; or (c) the date on which the Revolver Commitments are terminated pursuant to Section 11.2.

Compliance Certificate: a certificate, in form and substance satisfactory to Agent, by which Borrowers certify compliance with Section 10.3.

Consolidated Borrowed Money: with respect to Parent and each of its Subsidiaries, without duplication, their (a) Debt that (i) arises from the lending of money by any Person to Parent or any of its Subsidiaries, (ii) is evidenced by notes, drafts, bonds, debentures, credit documents or similar instruments, (iii) accrues interest or is a type upon which interest charges are customarily paid (excluding trade payables owing in the Ordinary Course of Business), or (iv) was issued or assumed as full or partial payment for Property; (b) Capital Leases; (c) reimbursement obligations with respect to letters of credit; and (d) guaranties of any Debt of the foregoing types owing by another Person, all determined on a consolidated basis in accordance with GAAP.

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Consolidated Rent Expense: with reference to any period, the Rentals of Parent and its Subsidiaries calculated on a consolidated basis for such period in accordance with GAAP.

Consolidated Tangible Assets:  as of any date of determination, (a) the total assets reflected on the balance sheet of Parent and its Subsidiaries as of the end of the Fiscal Year most recently ended, less (b) the total intangible assets reflected on the balance sheet of Parent and its Subsidiaries as of the end of the Fiscal Year most recently ended; in each case of clauses (a) and (b), determined on a consolidated basis in accordance with GAAP.

Contingent Obligation: any obligation of a Person arising from a guaranty, indemnity or other assurance of payment or performance of any Debt, lease, dividend or other obligation (“primary obligations”) of another obligor (“primary obligor”) in any manner, whether directly or indirectly, including any obligation of such Person under any (a) guaranty, endorsement, co-making or sale with recourse of an obligation of a primary obligor; (b) obligation to make take-or-pay or similar payments regardless of nonperformance by any other party to an agreement; and (c) arrangement (i) to purchase any primary obligation or security therefor, (ii) to supply funds for the purchase or payment of any primary obligation, (iii) to maintain or assure working capital, equity capital, net worth or solvency of the primary obligor, (iv) to purchase Property or services for the purpose of assuring the ability of the primary obligor to perform a primary obligation, or (v) otherwise to assure or hold harmless the holder of any primary obligation against loss in respect thereof.  The amount of any Contingent Obligation shall be deemed to be the stated or determinable amount of the primary obligation (or, if less, the maximum amount for which such Person may be liable under the instrument evidencing the Contingent Obligation) or, if not stated or determinable, the maximum reasonably anticipated liability with respect thereto.

Continuing Director: with respect to any Person as of any date of determination, any member of the board of directors of such Person who (i) was a member of such board of directors on the Closing Date, or (ii) was nominated for election or elected to such board of directors with the approval of the required majority of the Continuing Directors who were members of such board at the time of such nomination or election; provided that any individual who is so elected or nominated in connection with a merger, consolidation, acquisition or similar transaction shall not be a Continuing Director unless such individual was a Continuing Director prior thereto.

Convertible Notes: the senior convertible notes due not earlier than five (5) years from the date of issuance to be issued by the Parent within one (1) year of the Eleventh Amendment Effective Date and that otherwise satisfy each of the Convertible Notes Conditions.

Convertible Notes Conditions: the following conditions for Convertible Notes Debt: (a) all such Debt is in an aggregate principal amount that does not exceed $200,000,000; (b) all of the proceeds of such Debt are used (i) first, pay reasonable, documented, out-of-pocket costs and expenses incurred by Borrowers or Parent in connection with the issuance of such Debt and the Specified Notes Hedge Transaction and (ii) second, all remaining proceeds to prepay in part the Term Loan B; (c) any such Debt has a term that is not less than five (5) years and a final maturity no sooner than ninety (90) days after the Revolver Termination Date; (d) any such Debt has an interest rate no greater than 3.50% per annum, (e) any such Debt is unsecured; (f) the representations, covenants and defaults applicable to any such Debt are no less favorable to Borrowers than those permissible for the Term Loan B Debt then in effect and not otherwise adverse to the interests of the Agent and the Lenders (as determined by Agent in its reasonable discretion); (g) no additional Person is obligated on any such Debt other than Persons who are permitted to be obligated under the Term Loan B Debt; (h) upon giving effect to any such Debt, no Default or Event of Default exists; and (i) all such Debt has been incurred by Parent on or prior to the date that is one (1) year after the Eleventh Amendment Effective Date.

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Convertible Notes Debt: has the meaning set forth in the Guaranty and Security Agreement.

Credit Judgment: Agent’s judgment exercised in good faith, based upon its consideration of any factor that it believes (a) could adversely affect the quantity, quality, mix or value of Collateral (including any Applicable Law that may inhibit collection of an Account), the enforceability or priority of Agent’s Liens, or the amount that Agent and Lenders could receive in liquidation of any Collateral; (b) suggests that any collateral report or financial information delivered by any Obligor is incomplete, inaccurate or misleading in any material respect; (c) materially increases the likelihood of any Insolvency Proceeding involving an Obligor; or (d) creates or could result in a Default or Event of Default.  In exercising such judgment, Agent may consider any factors that could increase the credit risk of lending to Borrowers on the security of the Collateral.

CWA: the Clean Water Act (33 U.S.C. §§ 1251 et seq.).

Debt: as applied to any Person, without duplication, (a) all items that would be included as liabilities on a balance sheet in accordance with GAAP, including Capital Leases, but excluding trade payables incurred and being paid in the Ordinary Course of Business; (b) all Contingent Obligations; (c) all reimbursement obligations in connection with letters of credit issued for the account of such Person; and (d) in the case of a Borrower, the Obligations.  The Debt of a Person shall include any recourse Debt of any partnership in which such Person is a general partner or joint venturer.

Default: an event or condition that, with the lapse of time or giving of notice, would constitute an Event of Default.

Default Rate: for any Obligation (including, to the extent permitted by law, interest not paid when due), 2% plus the interest rate otherwise applicable thereto.

Defaulting Lender: any Lender that (a) fails to make any payment or provide funds to Agent or any Borrower as required hereunder or fails otherwise to perform its obligations under any Loan Document, and such failure is not cured within one Business Day, or (b) is the subject of any Insolvency Proceeding.

Deposit Account Control Agreements: the Deposit Account control agreements, in each case, in form and substance satisfactory to Agent, to be executed by each institution maintaining a Deposit Account for a Borrower of Guarantor, in favor of Agent, for the benefit of Secured Parties, as security for the Obligations.

Designated Account: the Deposit Account of Borrowers as directed by Borrower Agent to Agent in writing from time to time.

Designated Jurisdiction: any country or territory to the extent that such country or territory itself is the subject of any Sanction.

Dilution Reserve: as of any date of determination, the sum of the Eldorado Dilution Reserve, plus the HRI Dilution Reserve, plus the SCP Dilution Reserve, plus the Tapco Dilution Reserve.

Distribution: any declaration or payment of a distribution, interest or dividend on any Equity Interest (other than payment-in-kind); any distribution, advance or repayment of Debt to a holder of Equity Interests; or any purchase, redemption, or other acquisition or retirement for value of any Equity Interest.

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Dollars: lawful money of the United States.

Domestic Subsidiary: a Subsidiary that is organized or incorporated under the laws of the United States of America, any state of the United States of America, or the District of Columbia.

Dominion Account: one or more special accounts established by Borrowers at Bank of America or another bank acceptable to Agent, over which Agent has exclusive control for withdrawal purposes at all times after a Dominion Trigger Event.

Dominion Trigger Period: the period (a) commencing on the day that an Event of Default occurs, or Excess Availability is less than an amount equal to 12.5% of the aggregate Revolver Commitments at any time; and (b) continuing until, during the preceding thirty (30) consecutive days, no Event of Default has existed and Excess Availability has been greater than or equal to an amount equal to 12.5% of the aggregate Revolver Commitments at all times.

EBITDAR: determined on a consolidated basis for Parent and its Subsidiaries, the sum of (a) net income, calculated before interest expense, expense or benefit for income taxes, depreciation and amortization expense, gains or losses arising from the sale of capital assets, gains arising from the write-up of assets, any extraordinary gains, and any non-cash income (in each case, to the extent included in determining net income), plus (b) Consolidated Rent Expense plus (c) any non-cash charges, losses or expenses of Parent and its Subsidiaries for such period (but excluding any non-cash charge, loss or expense in respect of an item that was included in net income in a prior period and any non-cash charge, loss or expense that relates to the write-down or write-off of inventory, other than any write-down or write-off of inventory as a result of purchase accounting adjustments in respect of any Permitted Acquisition).

Eighth Amendment Effective Date: November 6, 2013.

Eldorado Borrowing Base: on any date of determination, an amount equal to the sum of (a) 85% of the Value of Eldorado Eligible Accounts, plus (b) the lesser of (i) (x) prior to the Eleventh Amendment Effective Date, 65% of the Value of Eldorado Eligible Inventory and (y) on or after the Eleventh Amendment Effective Date, 70% of the Value of Eldorado Eligible Inventory; or (ii) 85% of the NOLV Percentage of the Value of Eldorado Eligible Inventory.

Eldorado Dilution Percent: the percent, determined for the immediately prior 90 or 365 consecutive days (at Agent’s option), equal to (a) bad debt write-downs or write-offs, discounts, returns, promotions, credits, credit memos and other dilutive items with respect to Accounts of the Eldorado Group, divided by (b) gross sales of the Eldorado Group.

Eldorado Dilution Reserve: as of any date of determination, an amount sufficient to reduce the advance rate against Eldorado Eligible Accounts by the percentage points (rounded to the nearest 1/10 of 1%) by which the Eldorado Dilution Percent is in excess of 5.0%.

Eldorado Eligible Account: an Account owing to any Borrower in the Eldorado Group that arises in the Ordinary Course of Business from the sale of goods or rendition of services, is payable in Dollars and is deemed by Agent, in its Credit Judgment, to be an Eldorado Eligible Account.  Without limiting the foregoing, no such Account shall be an Eldorado Eligible Account if:

(a)                                 it is unpaid for more than 60 days after the original due date, or more than 90 days after the original invoice date;

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(b)                                 50% or more of the Accounts owing by the Account Debtor to Borrowers in the Eldorado Group are not Eldorado Eligible Accounts under the foregoing clause;

(c)                                  when aggregated with other Accounts owing by the Account Debtor to Borrowers in the Eldorado Group, it exceeds 15% of the aggregate Eldorado Eligible Accounts (or such higher percentage as the Required Lenders may establish for the Account Debtor from time to time);

(d)                                 it does not conform with a covenant or representation herein;

(e)                                  it is subject to a potential offset, counterclaim, dispute, deduction, discount (other than an early-pay discount offered as part of normal-course selling terms), recoupment, reserve, defense, chargeback, credit or allowance by the Account Debtor, whether it is a creditor, a supplier or otherwise (but ineligibility shall be limited to the amount thereof);

(f)                                   an Insolvency Proceeding has been commenced by or against the Account Debtor; or the Account Debtor has failed, has suspended or ceased doing business, is liquidating, dissolving or winding up its affairs, or is not Solvent; or the applicable Borrower is not able to bring suit or enforce remedies against the Account Debtor through judicial process;

(g)                                  the Account Debtor is organized or has its principal offices or assets outside the United States or Canada unless (i) such Account is supported by an irrevocable letter of credit satisfactory to Agent (as to form, substance, and issuer or domestic confirming bank); and (ii) such letter of credit has been delivered to Agent and is directly drawable by Agent;

(h)                                 it is owing by a Government Authority, unless the Account Debtor is the United States or any State, department, agency or instrumentality thereof and the Assignment of Claims Act or any similar State or local law, if applicable, has been complied with in a manner satisfactory to Agent;

(i)                                     it is not subject to a duly perfected, first priority Lien in favor of Agent, or is subject to any Lien other than a Permitted Lien which has been explicitly disclosed to Agent in writing;

(j)                                    the goods giving rise to it have not been delivered to and accepted by the Account Debtor, the services giving rise to it have not been accepted by the Account Debtor, or it otherwise does not represent a final sale;

(k)                                 it is evidenced by Chattel Paper or an Instrument of any kind, or has been reduced to judgment;

(l)                                     its payment has been extended, the Account Debtor has made a partial payment, or it arises from a sale on a cash-on-delivery basis;

(m)                             it arises from a sale to an Affiliate, from a sale on a ▇▇▇▇-and-hold, guaranteed sale, sale-or-return, sale-on-approval, consignment, or other repurchase or return basis, or from a sale to a Person for personal, family or household purposes;

(n)                                 it represents a progress billing or retainage; or

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(o)                                 it includes a billing for interest, fees or late charges, but ineligibility shall be limited to the extent thereof.

In calculating delinquent portions of Accounts under clauses (a) and (b), credit balances more than 90 days old will be excluded.

Eldorado Eligible Inventory: Inventory owned by any Borrower in the Eldorado Group that Agent, in its Credit Judgment, deems to be Eldorado Eligible Inventory.  Without limiting the foregoing, no such Inventory shall be Eldorado Eligible Inventory unless it:

(a)                                 is finished goods or raw materials, and not work-in-process, packaging or shipping materials, labels, samples, display items, bags, replacement parts or manufacturing supplies;

(b)                                 is not held on consignment, nor subject to any deposit or downpayment;

(c)                                  is in new and saleable condition and is not damaged, defective, shopworn or otherwise unfit for sale;

(d)                                 is not slow-moving, obsolete or unmerchantable, and does not constitute returned or repossessed goods;

(e)                                  meets all standards imposed by any Governmental Authority, and does not constitute hazardous materials under any Environmental Law;

(f)                                   conforms with the covenants and representations herein;

(g)                                  is subject to Agent’s duly perfected, first priority Lien, and no other Lien other than Permitted Liens which have been explicitly disclosed to Agent in writing;

(h)                                 is within the continental United States, is not in transit except between locations of Borrowers, and is not consigned to any Person;

(i)                                     is not subject to any warehouse receipt or negotiable Document;

(j)                                    is not subject to any License or other arrangement that restricts such Borrower’s or Agent’s right to dispose of such Inventory, unless Agent has received an appropriate Lien Waiver;

(k)                                 is not located on leased premises or in the possession of a warehouseman, processor, repairman, mechanic, shipper, freight forwarder or other Person, unless the lessor or such Person has delivered a Lien Waiver or an appropriate Rent and Charges Reserve has been established;

(l)                                     does not consist of molds or pallets;

(m)                             is not currently contemplated to be written off by the applicable Borrower; and

(n)                                 is reflected in the details of a current perpetual inventory report.

Eldorado Group: collectively, HCM Stone, LLC, a Utah limited liability company, Dutch Quality Stone, Inc., an Ohio corporation, Eldorado SC-Acquisition Co., a Utah corporation, Eldorado G-

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Acquisition Co., a Utah corporation, Eldorado Stone LLC, a Delaware limited liability company, Eldorado Stone Acquisition Co., LLC, a Utah limited liability company, Eldorado Stone Funding Co., LLC, a Utah limited liability company, Stonecraft Manufacturing, LLC, an Ohio limited liability company, Chihuahua Stone, LLC, a Utah limited liability company, Eldorado Stone Operations, LLC, a Utah limited liability company, ▇-▇ ▇▇▇▇▇, LLC, a Utah limited liability company.

Eleventh Amendment Effective Date: March 2, 2015.

Eligible Accounts: collectively, the Eldorado Eligible Accounts, the HRI Eligible Accounts, the SCP Eligible Accounts, and the Tapco Eligible Accounts.

Eligible Assignee: a Person that is (a) a Lender, U.S.-based Affiliate of a Lender or Approved Fund; (b) any other financial institution approved by Agent and Borrower Agent (which approval by Agent or Borrower Agent shall not be unreasonably withheld or delayed, and shall be deemed given if no objection is made within three Business Days after notice of the proposed assignment), that is organized under the laws of the United States or any state or district thereof, has total assets in excess of $5 billion, extends asset-based lending facilities in its ordinary course of business and whose becoming an assignee would not constitute a prohibited transaction under Section 4975 of the Code or any other Applicable Law; and (c) during any Event of Default, any Person commercially reasonably acceptable to Agent in its discretion.

Eligible Inventory: collectively, the Eldorado Eligible Inventory, the SCP Eligible Inventory, and the Tapco Eligible Inventory.

Enforcement Action: any action to enforce any Obligations or Loan Documents or to realize upon any Collateral (whether by judicial action, self-help, notification of Account Debtors, exercise of setoff or recoupment, or otherwise).

Environmental Agreement: each agreement of Borrowers and Guarantors with respect to any Real Estate subject to a Mortgage, pursuant to which Borrowers and Guarantors, as applicable, agree to indemnify and hold harmless Agent and Lenders from liability under any Environmental Laws.

Environmental Laws: all Applicable Laws (including all programs, permits and guidance promulgated by regulatory agencies), relating to public health (but excluding occupational safety and health, to the extent regulated by OSHA) or the protection or pollution of the environment, including CERCLA, RCRA and CWA.

Environmental Notice: a written notice from any Governmental Authority of any possible noncompliance with, investigation of a possible violation of, litigation relating to, or potential fine or liability under any Environmental Law, or with respect to any Environmental Release, environmental pollution or hazardous materials, including any complaint, summons, citation, order, claim, demand or request for correction, remediation or otherwise.

Environmental Release: a release as defined in CERCLA or under any other Environmental Law.

Equity Interest: the interest of any (a) shareholder in a corporation; (b) partner in a partnership (whether general, limited, limited liability or joint venture); (c) member in a limited liability company; or (d) other Person having any other form of equity security or ownership interest in any other Person.

ERISA: the Employee Retirement Income Security Act of 1974.

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ERISA Affiliate: any trade or business (whether or not incorporated) under common control with an Obligor within the meaning of Section 414(b) or (c) of the Code (and Sections 414(m) and (o) of the Code for purposes of provisions relating to Section 412 of the Code).

ERISA Event: (a) a Reportable Event with respect to a Pension Plan; (b) a withdrawal by any Obligor or ERISA Affiliate from a Pension Plan subject to Section 4063 of ERISA during a plan year in which it was a substantial employer (as defined in Section 4001(a)(2) of ERISA) or a cessation of operations that is treated as such a withdrawal under Section 4062(e) of ERISA; (c) a complete or partial withdrawal by any Obligor or ERISA Affiliate from a Multiemployer Plan or notification to the Multiemployer Plan that such plan is in reorganization; (d) the filing of a notice of intent to terminate, the treatment of a Plan amendment as a termination under Section 4041 or 4041A of ERISA, or the commencement of proceedings by the PBGC to terminate a Pension Plan or Multiemployer Plan; (e) any Obligor or ERISA Affiliate fails to meet any minimum funding obligations with respect to any Pension Plan or Multiemployer Plan, or requests a minimum funding waiver; (f) an event or condition which constitutes grounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Pension Plan or Multiemployer Plan; or (g) the imposition of any liability under Title IV of ERISA, other than for PBGC premiums due but not delinquent under Section 4007 of ERISA, upon any Obligor or ERISA Affiliate.

Event of Default: as defined in Section 11.

Excess Availability: as of any date of determination, the amount equal to Availability minus the aggregate amount, if any, of all trade payables of Borrowers and Guarantors unpaid for more than 60 days after the original invoice date and all book overdrafts of Borrowers and Guarantors, in each case as determined by Agent in its Credit Judgment.

Excluded Tax: with respect to Agent, any Lender, Issuing Bank or any other recipient of a payment to be made by or on account of any Obligation, (a) Taxes imposed on or measured by its overall net income (however denominated), and franchise taxes imposed on it (in lieu of net income taxes), by the jurisdiction (or any political subdivision thereof) under the laws of which such recipient is organized or in which its principal office is located or, in the case of any Lender, in which its applicable Lending Office is located; (b) any branch profits taxes imposed by the United States or any similar tax imposed by any other jurisdiction in which Borrower Agent is located; (c) any backup withholding tax required by the Code to be withheld from amounts payable to a Lender that has failed to comply with Section 5.10; and (d) in the case of a Foreign Lender, any United States withholding tax that is (i) required pursuant to laws in force at the time such Lender becomes a Lender (or designates a new Lending Office) hereunder, or (ii) attributable to such Lender’s failure or inability (other than as a result of a Change in Law) to comply with Section 5.10, except to the extent that such Foreign Lender (or its assignor, if any) was entitled, at the time of designation of a new Lending Office (or assignment), to receive additional amounts from Borrowers with respect to such withholding tax.

Exempt Property: (i) in the case of the Real Estate, all such Real Estate other than the Real Estate Collateral, (ii) all vehicles and other Collateral subject to state certificate of title statutes, (iii) all Deposit Accounts which are not maintained with the Agent and that with respect to which Deposit Account Control Agreements are not required to be entered into in accordance with Section 8.5, and (iv) the Equity Interests in FlexCrete Building Systems, L.C., a Utah limited liability company.

Existing Credit Agreement: the Credit Agreement dated as of September 8, 2004, by and among Parent, as the borrower, the lenders party thereto, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Senior Funding, Inc., as administrative agent, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated, as collateral agent, and JPMorgan Chase Bank, as syndication agent.

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Extraordinary Expenses: all costs, expenses or advances that Agent or any Lender may incur during a Default or Event of Default, or during the pendency of an Insolvency Proceeding of a Borrower or Guarantor, in each case, including those relating to (a) any audit, inspection, repossession, storage, repair, appraisal, insurance, manufacture, preparation or advertising for sale, sale, collection, or other preservation of or realization upon any Collateral; (b) any action, arbitration or other proceeding (whether instituted by or against Agent, any Lender, any Obligor, any representative of creditors of an Obligor or any other Person) in any way relating to any Collateral (including the validity, perfection, priority or avoidability of Agent’s Liens with respect to any Collateral), Loan Documents, Letters of Credit or Obligations, including any lender liability or other Claims; (c) the exercise, protection or enforcement of any rights or remedies of Agent or any Lender in, or the monitoring of, any Insolvency Proceeding; (d) settlement or satisfaction of any taxes, charges or Liens with respect to any Collateral; (e) any Enforcement Action; (f) negotiation and documentation of any modification, waiver, workout, restructuring or forbearance with respect to any Loan Documents or Obligations; and (g) Protective Advances.  Such costs, expenses and advances include transfer fees, Other Taxes, storage fees, insurance costs, permit fees, utility reservation and standby fees, legal fees, appraisal fees, brokers’ fees and commissions, auctioneers’ fees and commissions, accountants’ fees, environmental study fees, wages and salaries paid to employees of any Obligor or independent contractors in liquidating any Collateral, and travel expenses.

Federal Funds Rate: (a) the weighted average of interest rates on overnight federal funds transactions with members of the Federal Reserve System arranged by federal funds brokers on the applicable Business Day (or on the preceding Business Day, if the applicable day is not a Business Day), as published by the Federal Reserve Bank of New York on the next Business Day; or (b) if no such rate is published on the next Business Day, the average rate (rounded up, if necessary, to the nearest 1/8 of 1%) charged to Bank of America on the applicable day on such transactions, as determined by Agent.

Fee Letter: the fee letter agreement, dated as of the Closing Date, between Agent and Borrowers.

Fifth Amendment Effective Date: April 26, 2012.

Fiscal Quarter: each period of three months, commencing on the first day of a Fiscal Year.

Fiscal Year: the fiscal year of Borrowers and Subsidiaries for accounting and tax purposes, ending on September 30 of each year.

Fixed Charge Coverage Ratio: the ratio, determined on a consolidated basis for Parent and Parent’s Subsidiaries for the most recent twelve calendar months, of (a) EBITDAR minus Capital Expenditures (except those financed with Consolidated Borrowed Money other than Revolver Loans) and cash taxes paid, to (b) Fixed Charges, plus Consolidated Rent Expense.

Fixed Charges: the sum of (1) cash interest paid or scheduled to be paid (other than cash premiums paid in connection with extinguishing the Senior Notes Refinancing Debt to the extent such premiums are substantially contemporaneously funded with the proceeds of new Debt permitted to be incurred hereunder and such premiums constitute interest expense), (2) principal payments made or scheduled to be made on Consolidated Borrowed Money (other than (i) repayments of the Revolver Loans, (ii) voluntary prepayments (which for clarification shall not include any scheduled or mandatory prepayments) made if, as applicable, the Borrowers are permitted to make such prepayments under Section 10.2.8 hereof and the Parent is permitted to make such prepayments under Section 5.2(g) of the Guaranty and Security Agreement, (iii) (a) “Excess Cash Flow” (as such term is defined in the Term Loan B Agreement on the Term Loan B Closing Date, which definition shall be satisfactory to the Agent) payments, in an amount not to exceed 50% of “Excess Cash Flow” for any fiscal year and (b) mandatory

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prepayments due on account of the sale or other disposition of assets constituting Second Lien Collateral (provided that such sale or disposition of assets is also permitted by this Agreement) or due on account of casualty insurance proceeds received in respect of Second Lien Collateral, (iv) payments made to extinguish the Senior Notes Refinancing Debt solely to the extent such Debt is refinanced on a dollar-for-dollar basis with the proceeds of the Term Loan B Debt and (v) payments made to extinguish the Term Loan B Debt solely to the extent such Debt is refinanced on a dollar-for-dollar basis with the proceeds of the Convertible Notes or other Debt permitted to be incurred under the Loan Documents and the Term Loan B Documents), (3) Distributions made and (4) earn-out obligations, working capital adjustments, purchase price and similar adjustments and indemnification obligations under any agreements entered into in connection with any Permitted Acquisition.  Capitalized terms used in this definition and not otherwise defined in this Agreement shall have the meanings provided in the Guaranty and Security Agreement.

FLSA: the Fair Labor Standards Act of 1938.

Fly Ash Commission Reserve: as of any date of determination, an amount equal to (a) $2,000,000 plus (b) the amount of all commissions owing by any Borrower on account of any fly ash products sold by any Borrower that are unpaid for more than 45 days after the original due date.

Foreign Lender: any Lender that is organized under the laws of a jurisdiction other than the laws of the United States, or any state or district thereof.

Foreign Plan: any employee benefit plan or arrangement (a) maintained or contributed to by any Obligor or Subsidiary that is not subject to the laws of the United States; or (b) mandated by a government other than the United States for employees of any Obligor or Subsidiary.

Foreign Subsidiary: a Subsidiary that is a “controlled foreign corporation” under Section 957 of the Code, such that a guaranty by such Subsidiary of the Obligations or a Lien on the assets of such Subsidiary to secure the Obligations would result in material tax liability to Borrowers.

Full Payment: with respect to any Obligations, (a) the full and indefeasible cash payment thereof, including any interest, fees and other charges accruing during an Insolvency Proceeding (whether or not allowed in the proceeding); (b) if such Obligations are LC Obligations or inchoate or contingent in nature, Cash Collateralization thereof (or delivery of a standby letter of credit acceptable to Agent in its discretion, in the amount of required Cash Collateral); and (c) a release of any Claims of Obligors against Agent, Lenders and Issuing Bank arising on or before the payment date.  No Loans shall be deemed to have been paid in full until all Commitments related to such Loans have expired or been terminated.

GAAP: generally accepted accounting principles in effect in the United States from time to time.

Governmental Approvals: all authorizations, consents, approvals, licenses and exemptions of, registrations and filings with, and required reports to, all Governmental Authorities.

Governmental Authority: any federal, state, municipal, foreign or other governmental department, agency, commission, board, bureau, court, tribunal, instrumentality, political subdivision, or other entity or officer exercising executive, legislative, judicial, regulatory or administrative functions for or pertaining to any government or court, in each case whether associated with the United States, a state, district or territory thereof, or a foreign entity or government.

Guarantor Payment: as defined in Section 5.11.3.

Guarantors: Parent, and each Person who guarantees payment or performance of any Obligations.

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Guaranty: each guaranty agreement executed by a Guarantor in favor of Agent.

Guaranty and Security Agreement: that certain Guaranty and Security Agreement, dated as of October 27, 2009, among the Guarantors signatory thereto and Agent, as the same may be amended, restated, supplemented or otherwise modified from time to time.

Hedging Agreement: an agreement relating to any swap, cap, floor, collar, option, forward, cross right or obligation, or combination thereof or similar transaction, with respect to interest rate, foreign exchange, currency, commodity, credit or equity risk.

HMT: as defined in the definition of Sanctions.

HRI Borrowing Base: on any date of determination, an amount equal to 85% of the Value of HRI Eligible Accounts.

HRI Dilution Percent: the percent, determined for the immediately prior 90 or 365 consecutive days (at Agent’s option), equal to (a) bad debt write-downs or write-offs, discounts, returns, promotions, credits, credit memos and other dilutive items with respect to Accounts of the HRI Group, divided by (b) gross sales of the HRI Group.

HRI Dilution Reserve: as of any date of determination, an amount sufficient to reduce the advance rate against HRI Eligible Accounts by the percentage points (rounded to the nearest 1/10 of 1%) by which the HRI Dilution Percent is in excess of 5.0%.

HRI Eligible Account: an Account owing to any Borrower in the HRI Group that arises in the Ordinary Course of Business from the sale of goods or rendition of services, is payable in Dollars and is deemed by Agent, in its Credit Judgment, to be a HRI Eligible Account.  Without limiting the foregoing, no such Account shall be a HRI Eligible Account if:

(a)                                 it is unpaid for more than 60 days after the original due date, or more than 90 days after the original invoice date;

(b)                                 50% or more of the Accounts owing by the Account Debtor to Borrowers in the HRI Group are not HRI Eligible Accounts under the foregoing clause;

(c)                                  when aggregated with other Accounts owing by the Account Debtor to Borrowers in the HRI Group, it exceeds 15% of the aggregate HRI Eligible Accounts (or such higher percentage as the Required Lenders may establish for the Account Debtor from time to time);

(d)                                 it does not conform with a covenant or representation herein;

(e)                                  it is subject to a potential offset, counterclaim, dispute, deduction, discount (other than an early-pay discount offered as part of normal-course selling terms), recoupment, reserve, defense, chargeback, credit or allowance by the Account Debtor, whether it is a creditor, a supplier or otherwise (but ineligibility shall be limited to the amount thereof);

(f)                                   an Insolvency Proceeding has been commenced by or against the Account Debtor; or the Account Debtor has failed, has suspended or ceased doing business, is liquidating, dissolving or winding up its affairs, or is not Solvent; or the applicable Borrower is not able to bring suit or enforce remedies against the Account Debtor through judicial process;

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(g)                                  the Account Debtor is organized or has its principal offices or assets outside the United States or Canada unless (i) such Account is supported by an irrevocable letter of credit satisfactory to Agent (as to form, substance, and issuer or domestic confirming bank); and (ii) such letter of credit has been delivered to Agent and is directly drawable by Agent;

(h)                                 it is owing by a Government Authority, unless the Account Debtor is the United States or any State, department, agency or instrumentality thereof and the Assignment of Claims Act or any similar State or local law, if applicable, has been complied with in a manner satisfactory to Agent;

(i)                                     it is not subject to a duly perfected, first priority Lien in favor of Agent, or is subject to any Lien other than a Permitted Lien which has been explicitly disclosed to Agent in writing;

(j)                                    the goods giving rise to it have not been delivered to and accepted by the Account Debtor, the services giving rise to it have not been accepted by the Account Debtor, or it otherwise does not represent a final sale;

(k)                                 it is evidenced by Chattel Paper or an Instrument of any kind, or has been reduced to judgment;

(l)                                     its payment has been extended, the Account Debtor has made a partial payment, or it arises from a sale on a cash-on-delivery basis;

(m)                             it arises from a sale to an Affiliate, from a sale on a ▇▇▇▇-and-hold, guaranteed sale, sale-or-return, sale-on-approval, consignment, or other repurchase or return basis, or from a sale to a Person for personal, family or household purposes;

(n)                                 it represents a progress billing or retainage; or

(o)                                 it includes a billing for interest, fees or late charges, but ineligibility shall be limited to the extent thereof.

In calculating delinquent portions of Accounts under clauses (a) and (b), credit balances more than 90 days old will be excluded.

HRI Group: collectively, Headwaters Resources, Inc., a Utah corporation, and Headwaters Services Corporation, a Utah corporation.

Impacted Loans: as defined in Section 3.6.

Indemnified Taxes: Taxes other than Excluded Taxes.

Indemnitees: Agent Indemnitees, Lender Indemnitees, Issuing Bank Indemnitees and Bank of America Indemnitees.

Insolvency Proceeding: any case or proceeding commenced by or against a Person under any state, federal or foreign law for, or any agreement of such Person to, (a) the entry of an order for relief under the Bankruptcy Code, or any other insolvency, debtor relief or debt adjustment law; (b) the appointment of a receiver, trustee, liquidator, administrator, conservator or other custodian for such Person or any part of its Property; or (c) an assignment or trust mortgage for the benefit of creditors.

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Intellectual Property: all intellectual and similar Property of a Person, including inventions, designs, patents, copyrights, trademarks, service marks, trade names, trade secrets, confidential or proprietary information, customer lists, know-how, software and databases; all embodiments or fixations thereof and all related documentation, applications, registrations and franchises; all licenses or other rights to use any of the foregoing; and all books and records relating to the foregoing.

Intellectual Property Claim: any claim or assertion (whether in writing, by suit or otherwise) that a Borrower’s or Subsidiary’s ownership, use, marketing, sale or distribution of any Inventory, Equipment, Intellectual Property or other Property violates another Person’s Intellectual Property.

Intercreditor Agreement: (i) the Intercreditor Agreement of even date herewith, between the Senior Secured Notes Collateral Agent for the holders of any Senior Notes Refinancing Debt and the Agent, as amended, until such agreement is terminated upon prepayment of the Senior Notes Refinancing Debt; and (ii) thereafter, such intercreditor agreement as may be entered into between Agent and the Term Loan B Agent for the holders of the Term Loan B Debt and Term Loan B Hedge Debt (if applicable) which intercreditor agreement shall be on substantially the same terms as the Intercreditor Agreement referred to in clause (i) of this definition, except to the extent otherwise agreed by Agent, and shall otherwise be in form and substance satisfactory to Agent.

Interest Period: as defined in Section 3.1.3.

Inventory: as defined in the UCC, including all goods intended for sale, lease, display or demonstration; all work in process; and all raw materials, and other materials and supplies of any kind that are or could be used in connection with the manufacture, printing, packing, shipping, advertising, sale, lease or furnishing of such goods, or otherwise used or consumed in a Borrower’s business (but excluding Equipment).

Inventory Reserve: reserves established by Agent in its Credit Judgment to reflect factors that may negatively impact the Value of Inventory, including change in salability, obsolescence, seasonality, theft, shrinkage, imbalance, change in composition or mix, markdowns and vendor chargebacks.

Investment: any acquisition of all or substantially all assets of a Person; any acquisition of record or beneficial ownership of any Equity Interests of a Person; or any loan, advance or capital contribution to or other investment in a Person.

IRS: the United States Internal Revenue Service.

Issuing Bank: Bank of America or an Affiliate of Bank of America.

Issuing Bank Indemnitees: Issuing Bank and its officers, directors, employees, Affiliates, agents and attorneys.

Kleer Acquisition: the acquisition of certain assets of Kleer Lumber, Inc., a Massachusetts corporation, pursuant to that certain Asset Purchase Agreement, dated on or about December 14, 2012, among Tapco, Kleer Lumber, Inc. and any other party identified on the signature pages thereto (the “Kleer Acquisition Agreement”).

Kleer Acquisition Loan:  Debt owing by Tapco to Parent in connection with the Kleer Acquisition that (a) is not secured by a Lien, (b) does not exceed $5,000,000, (c) is incurred prior to the Kleer Acquisition Payment Date, and (d) the proceeds of which are used solely to fund the purchase consideration payable by Tapco in connection with the Kleer Acquisition.

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Kleer Acquisition Payment Date: two (2) Business Days prior to the Closing Date (as defined in the Kleer Acquisition Agreement) of the Kleer Acquisition.

LC Application: an application by Borrower Agent to Issuing Bank for issuance of a Letter of Credit, in form and substance satisfactory to Issuing Bank.

LC Conditions: the following conditions necessary for issuance of a Letter of Credit: (a) each of the conditions set forth in Section 6; (b) after giving effect to such issuance, total LC Obligations do not exceed the Letter of Credit Subline, no Overadvance exists and, if no Revolver Loans are outstanding, the LC Obligations do not exceed the Borrowing Base (without giving effect to the LC Reserve for purposes of this calculation); (c) the expiration date of such Letter of Credit is (i) no more than 365 days from issuance, in the case of standby Letters of Credit, (ii) no more than 120 days from issuance, in the case of documentary Letters of Credit, and (iii) at least 20 Business Days prior to the Revolver Termination Date; (d) the Letter of Credit and payments thereunder are denominated in Dollars; and (e) the purpose and form of the proposed Letter of Credit are satisfactory to Agent and Issuing Bank in their discretion.

LC Documents: all documents, instruments and agreements (including LC Requests and LC Applications) delivered by Borrowers or any other Person to Issuing Bank or Agent in connection with issuance, amendment or renewal of, or payment under, any Letter of Credit.

LC Obligations: the sum (without duplication) of (a) all amounts owing by Borrowers for any drawings under Letters of Credit; (b) the maximum amount available to be drawn under all outstanding Letters of Credit; and (c) all fees and other amounts owing with respect to Letters of Credit.

LC Request: a request for issuance of a Letter of Credit, to be provided by Borrower Agent to Issuing Bank, in form satisfactory to Agent and Issuing Bank.

LC Reserve: the aggregate of all LC Obligations, other than (a) those that have been Cash Collateralized; and (b) if no Default or Event of Default exists, those constituting fees and other amounts owing to the Issuing Bank.

Lender Indemnitees: Lenders and their respective officers, directors, employees, Affiliates, agents and attorneys.

Lenders: as defined in the preamble to this Agreement, including Agent in its capacity as a provider of Swingline Loans and any other Person who hereafter becomes a “Lender” pursuant to an Assignment and Acceptance.

Lending Office: the office designated as such by the applicable Lender at the time it becomes party to this Agreement or thereafter by notice to Agent and Borrower Agent.

Letter of Credit: any standby or documentary letter of credit issued by Issuing Bank for the account of a Borrower, or any indemnity, guarantee, exposure transmittal memorandum or similar form of credit support issued by Agent or Issuing Bank for the benefit of a Borrower.

Letter of Credit Subline: $35,000,000.

LIBOR: means (a) for any Interest Period with respect to a LIBOR Loan, the per annum rate of interest (rounded up to the nearest 1/8th of 1% and in no event less than zero) determined by Agent at or about 11:00 a.m. (London time) two Business Days prior to an Interest Period, for a term equivalent to such period, equal to the London Interbank Offered Rate, or a comparable or successor rate approved by

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the Agent, as published on the applicable Reuters screen page (or other commercially available source designated by the Agent from time to time); and (b) for any interest calculation with respect to a Base Rate Loan on any date, the per annum rate of interest (rounded up to the nearest 1/8th of 1% and in no event less than zero) determined by Agent at or about 11:00 a.m. (London time) two Business Days prior to such date, for U.S. Dollar deposits with a term of one month commencing that day, equal to the London Interbank Offered Rate, or a comparable or successor rate approved by the Agent, as published on the applicable Reuters screen page (or other commercially available source designated by the Agent from time to time);

provided, that, in each case, any comparable or successor rate shall be applied by Agent, if administratively feasible, in a manner consistent with market practice, and any such comparable rate shall be applied in a manner consistent with other similarly situated syndicated commercial lending transactions agented by the Agent.  If the Board of Governors imposes a Reserve Percentage with respect to LIBOR deposits, then LIBOR shall be the foregoing rate, divided by 1 minus the Reserve Percentage.

LIBOR Loan: each set of LIBOR Revolver Loans having a common length and commencement of Interest Period.

LIBOR Revolver Loan: a Revolver Loan that bears interest based on LIBOR.

License: any license or agreement under which an Obligor is authorized to use Intellectual Property in connection with any manufacture, marketing, distribution or disposition of Collateral, any use of Property or any other conduct of its business.

Licensor: any Person from whom an Obligor obtains the right to use any Intellectual Property.

Lien: any Person’s interest in Property securing an obligation owed to, or a claim by, such Person, whether such interest is based on common law, statute or contract, including liens, security interests, pledges, hypothecations, statutory trusts, reservations, exceptions, encroachments, easements, rights-of-way, covenants, conditions, restrictions, leases, and other title exceptions and encumbrances affecting Property.

Lien Waiver: an agreement, in form and substance satisfactory to Agent, by which (a) for any Collateral located on leased premises, the lessor waives or subordinates any Lien it may have on the Collateral, and agrees to permit Agent to enter upon the premises and remove the Collateral or to use the premises to store or dispose of the Collateral; (b) for any Collateral held by a warehouseman, processor, shipper, customs broker or freight forwarder, such Person waives or subordinates any Lien it may have on the Collateral, agrees to hold any Documents in its possession relating to the Collateral as agent for Agent, and agrees to deliver the Collateral to Agent upon request; (c) for any Collateral held by a repairman, mechanic or bailee, such Person acknowledges Agent’s Lien, waives or subordinates any Lien it may have on the Collateral, and agrees to deliver the Collateral to Agent upon request; and (d) for any Collateral subject to a Licensor’s Intellectual Property rights, the Licensor grants to Agent the right, vis-à-vis such Licensor, to enforce Agent’s Liens with respect to the Collateral, including the right to dispose of it with the benefit of the Intellectual Property, whether or not a default exists under any applicable License.

Line Usage: for any period, the percent equal to (a) the average daily amount of outstanding Obligations for such period divided by (b) the average amount of Revolver Commitments during such period.

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Litigation Reserve: an amount equal to any amounts (net of insurance coverage therefore acknowledged by the insurer in writing) owing by Parent or any of its Subsidiaries from time to time in connection with unsatisfied verdicts, judgments or settlements, as established by Agent from time to time in its Credit Judgment.

Loan: a Revolver Loan.

Loan Account: the loan account established by each Lender on its books pursuant to Section 5.8.

Loan Documents: this Agreement, Other Agreements and Security Documents.

Loan Year: each 12 month period commencing on the Closing Date and on each anniversary of the Closing Date.

Margin Stock: as defined in Regulation U of the Board of Governors.

Material Adverse Effect: the effect of any event or circumstance that, taken alone or in conjunction with other events or circumstances, (a) has or could be reasonably expected to have a material adverse effect on the business, operations, Properties, prospects or condition (financial or otherwise) of any Borrower Group taken as a whole or the Obligors taken as a whole, on the value of any material Collateral, on the enforceability of the Loan Documents, or on the validity or priority of Agent’s Liens on the Collateral; (b) impairs the ability of any Borrower or Guarantor to perform its obligations under the Loan Documents, including repayment of the Obligations; or (c) otherwise impairs the ability of Agent or any Lender to enforce or collect the Obligations or to realize upon the Collateral.

Material Contract: any agreement or arrangement to which a Borrower or Subsidiary is party (other than the Loan Documents) (a) that is deemed to be a material contract under any securities law applicable to such Obligor, including the Securities Act of 1933; (b) for which breach, termination, nonperformance or failure to renew could reasonably be expected to have a Material Adverse Effect; or (c) that relates to Subordinated Debt, or Debt in an aggregate amount of $10,000,000 or more.

Moody’s: ▇▇▇▇▇’▇ Investors Service, Inc., and its successors.

Mortgage: each mortgage, deed of trust or deed to secure debt pursuant to which a Borrower or Guarantor grants to Agent, for the benefit of Secured Parties, Liens upon the Real Estate Collateral owned by such Borrower, as security for the Obligations.

Multiemployer Plan: any employee benefit plan of the type described in Section 4001(a)(3) of ERISA, to which any Obligor or ERISA Affiliate makes or is obligated to make contributions, or during the preceding five plan years, has made or been obligated to make contributions.

Net Proceeds: with respect to an Asset Disposition, proceeds (including, when received, any deferred or escrowed payments) received by a Borrower or Subsidiary in cash from such disposition, net of (a) reasonable and customary costs and expenses actually incurred in connection therewith, including legal fees and sales commissions; (b) amounts applied to repayment of Debt secured by a Permitted Lien senior to Agent’s Liens on Collateral sold; (c) any Taxes reasonably attributable to such Asset Disposition (including any withholding in respect of such Taxes) and reasonably estimated by Borrowers to be actually payable; and (d) reserves for indemnities, until such reserves are no longer needed.

NOLV Percentage: with respect to any category of Inventory for any Borrower Group, the net orderly liquidation value of such Inventory, expressed as a percentage, expected to be realized at an

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orderly, negotiated sale held within a reasonable period of time, net of all liquidation expenses, as determined from the most recent appraisal of such Inventory performed by an appraiser and on terms satisfactory to Agent.

Notes: each Revolver Note or other promissory note executed by a Borrower to evidence any Obligations.

Notice of Borrowing: a Notice of Borrowing to be provided by Borrower Agent to request a Borrowing of Revolver Loans, in form satisfactory to Agent (including any electronic form on an electronic platform or electronic transmission system as shall be approved by the Agent), appropriately completed and signed by a Senior Officer of the Borrower Agent.

Notice of Conversion/Continuation: a Notice of Conversion/Continuation to be provided by Borrower Agent to request a conversion or continuation of any Loans as LIBOR Loans, in form satisfactory to Agent (including any electronic form on an electronic platform or electronic transmission system as shall be approved by the Agent), appropriately completed and signed by a Senior Officer of the Borrower Agent.

Obligations: all (a) principal of and premium, if any, on the Loans, (b) LC Obligations and other obligations of Obligors with respect to Letters of Credit, (c) interest, expenses, fees and other sums payable by Obligors under Loan Documents, (d) obligations of Obligors under any indemnity for Claims, (e) Extraordinary Expenses, (f) Bank Product Debt, and (g) other Debts, obligations and liabilities of any kind owing by Obligors pursuant to the Loan Documents, whether now existing or hereafter arising, whether evidenced by a note or other writing, whether allowed in any Insolvency Proceeding, whether arising from an extension of credit, issuance of a letter of credit, acceptance, loan, guaranty, indemnification or otherwise, and whether direct or indirect, absolute or contingent, due or to become due, primary or secondary, or joint or several.

Obligor: each Borrower, Guarantor, or other Person that is liable for payment of any Obligations or that has granted a Lien in favor of Agent on its assets to secure any Obligations.

OFAC: the Office of Foreign Assets Control of the United States Department of the Treasury.

Operating Lease: with respect to any Person, any lease of Property (other than a Capital Lease) by such Person as lessee which has an original term (including any required renewals and any renewals effective at the option of the lessor) of one year or more.

Ordinary Course of Business: the ordinary course of business of any Borrower or Subsidiary, consistent with past practices and undertaken in good faith.

Organic Documents: with respect to any Person, its charter, certificate or articles of incorporation, bylaws, articles of organization, limited liability company agreement, operating agreement, members agreement, shareholders agreement, partnership agreement, certificate of partnership, certificate of formation, voting trust agreement, or similar agreement or instrument governing the formation or management of such Person.

OSHA: the Occupational Safety and Hazard Act of 1970.

Other Agreement: each Note; each LC Document; each Lien Waiver; the Fee Letter; the Intercreditor Agreement; each Related Real Estate Document; each Borrowing Base Certificate, each Compliance Certificate, each financial statement or report delivered hereunder; or other document,

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instrument or agreement (other than this Agreement or a Security Document) now or hereafter delivered by an Obligor or other Person to Agent or a Lender in connection with any transactions relating hereto.

Other Taxes: all present or future stamp or documentary taxes or any other excise or property taxes, charges or similar levies arising from any payment made under any Loan Document or from the execution, delivery or enforcement of, or otherwise with respect to, any Loan Document.

Overadvance: as defined in Section 2.1.5.

Overadvance Loan: a Base Rate Revolver Loan made when an Overadvance exists or is caused by the funding thereof.

Parent: Headwaters Incorporated, a Delaware corporation.

Participant: as defined in Section 13.2.

Patent Security Agreement: each patent security agreement pursuant to which an Obligor grants to Agent, for the benefit of Secured Parties, a Lien on such Obligor’s interests in its patents, as security for the Obligations.

Patriot Act: the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, Pub. L. No. 107-56, 115 Stat. 272 (2001).

Payment Item: each check, draft or other item of payment payable to a Borrower, including those constituting proceeds of any Collateral.

PBGC: the Pension Benefit Guaranty Corporation.

Pension Plan: any employee pension benefit plan (as such term is defined in Section 3(2) of ERISA), other than a Multiemployer Plan, that is subject to Title IV of ERISA and is sponsored or maintained by any Obligor or ERISA Affiliate or to which the Obligor or ERISA Affiliate contributes or has an obligation to contribute, or in the case of a multiple employer or other plan described in Section 4064(a) of ERISA, has made contributions at any time during the preceding five plan years.

Permitted Acquisition:  any Acquisition by any Obligor in a transaction that satisfies each of the following requirements: (a) such Acquisition is not a hostile acquisition or contested by the Person to be acquired; (b) the assets being acquired (other than a de minimis amount of assets in relation to Obligors’ total assets), or the Person whose Equity Interests are being acquired, are useful in or engaged in, as applicable, the business of Obligors or a business reasonably related thereto; (c) both before and after giving effect to such Acquisition, each of the representations and warranties in the Loan Documents is true and correct; (d) no Default or Event of Default shall have occurred and be continuing or would result from the consummation of such Acquisition; (e) as soon as available, but not less than 30 days (or 15 days in the case of the Kleer Acquisition) prior to such Acquisition, the Obligors have provided Agent (i) notice of such Acquisition and (ii) a copy of all available business and financial information reasonably requested by Agent, including pro forma financial statements, statements of cash flow, financial covenant projections, and Availability projections; (f) not later than: (i) 15 Business Days (or 10 Business Days in the case of the Kleer Acquisition) prior to the anticipated closing date of such Acquisition, Obligors shall have provided the Agent with the then current drafts of the acquisition agreement and other material documents relative to such Acquisition, which agreement and documents must be reasonably acceptable to Agent and (ii) 5 Business Days prior to the anticipated closing date of such Acquisition, Obligors shall have provided the Agent with the final copies of the acquisition agreement and other material documents

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relative to such Acquisition, which agreement and documents must be reasonably acceptable to Agent; (g) Intentionally Omitted; (h) if such Acquisition is an acquisition of the Equity Interests of a Person, the Acquisition is structured so that the acquired Person shall become a wholly-owned direct Subsidiary of an Obligor and, if required under Section 10.1.9 of this Agreement or Section 5.1(h) of the Guaranty and Security Agreement, an Obligor pursuant to the terms of the Loan Documents; (i) if such Acquisition is an acquisition of assets, the Acquisition is structured so that: (x) in the case of an acquisition of assets located in the United States, an Obligor shall acquire such assets, and (y) in the case of an acquisition of assets located in Canada, either an Obligor or a wholly-owned direct Subsidiary of an Obligor shall acquire such assets; (j) the assets being acquired (other than a de minimis amount of assets in relation to the assets being acquired) are located within the United States or Canada, or the Person whose Equity Interests are being acquired is organized in a jurisdiction located within the United States or Canada; (k) no Debt will be incurred, assumed, or would exist with respect to any Obligor or its Subsidiaries as a result of such Acquisition, other than Debt permitted under Section 10.2.1 or Section 5.2(a) of the Guaranty and Security Agreement, as applicable, and no Liens will be incurred, assumed, or would exist with respect to the assets of any Obligor or its Subsidiaries as a result or such Acquisition other than Permitted Liens or Permitted Liens (as defined in the Guaranty and Security Agreement), as applicable; and (l) either: (i) (A) both immediately before and immediately after giving effect to any such Acquisition, Excess Availability is greater than an amount equal to 15% of the aggregate Revolver Commitments, and (B) on a pro forma basis the Fixed Charge Coverage Ratio, measured on a trailing twelve (12) month basis after giving effect to any such Acquisition and recomputed for the most recent month for which financial statements have been delivered to Agent, is greater than 1.00 to 1.00; or (ii) both immediately before and immediately after giving effect to any such Acquisition, Excess Availability is greater than an amount equal to 20% of the aggregate Revolver Commitments.  In no event will assets acquired pursuant to a Permitted Acquisition constitute assets eligible for inclusion in the Borrowing Base prior to completion of a field examination and other due diligence acceptable to Agent in its discretion.

Permitted Asset Disposition: (i) an Asset Disposition by any Obligor other than a Borrower, or (ii) as long as: (x) no Default or Event of Default exists (provided that, in the case of clauses (a) and (c) only, such Asset Dispositions will continue to be permitted unless Agent has given Borrower Agent notice otherwise), and (y) in the case of clauses (a) and (c) only, all Net Proceeds are remitted to a Dominion Account, an Asset Disposition by a Borrower that is: (a) a sale of Inventory in the Ordinary Course of Business; (b) a disposition of Equipment that, in the aggregate during any 12 month period, has a fair market or book value (whichever is more) of $5,000,000 or less; (c) a disposition of Inventory that is obsolete, unmerchantable or otherwise unsalable in the Ordinary Course of Business; (d) a sale or grant of non-exclusive licenses of Intellectual Property entered into in the Ordinary Course of Business; (e) termination of a lease of real or personal Property that is not necessary for the Ordinary Course of Business, could not reasonably be expected to have a Material Adverse Effect and does not result from a Borrower’s default; (f) leases, sales or other dispositions of Property (other than any Revolver Priority Collateral) that, in the aggregate during any Fiscal Year, do not exceed more than 5% of Consolidated Tangible Assets; (g) a disposition of Property (other than any Revolver Priority Collateral) that is exchanged for credit against the purchase price of similar replacement property; (h) a transfer of Property by a Borrower to another Borrower; or (i) approved in writing by Agent and Required Lenders.

Permitted Contingent Obligations: Contingent Obligations (a) arising from endorsements of Payment Items for collection or deposit in the Ordinary Course of Business; (b) arising from Hedging Agreements permitted hereunder; (c) existing on the Closing Date, and any extension or renewal thereof that does not increase the amount of such Contingent Obligation when extended or renewed; (d) incurred in the Ordinary Course of Business with respect to surety, appeal or performance bonds, or other similar obligations; (e) arising from customary indemnification obligations in favor of purchasers in connection with dispositions of Equipment permitted hereunder; (f) arising under the Loan Documents; (g) consisting of customary indemnification obligations included in contracts entered into in the Ordinary Course of

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Business; (h) pursuant to guaranties by: (i) a Borrower of the obligations of another Borrower, (ii) a Guarantor of the obligations of another Guarantor, or (iii) a Guarantor of the obligations of a Borrower, in each case, with respect to lease, contracts and other commitments entered into in the Ordinary Course of Business; or (i) in an aggregate amount of $5,000,000 or less at any time.

Permitted Lien: as defined in Section 10.2.2.

Permitted Purchase Money Debt: Purchase Money Debt of Borrowers and Subsidiaries that is unsecured or secured only by a Purchase Money Lien, as long as the aggregate amount does not exceed $5,000,000 at any time.

Person: any individual, corporation, limited liability company, partnership, joint venture, joint stock company, land trust, business trust, unincorporated organization, Governmental Authority or other entity.

Plan: any employee benefit plan (as such term is defined in Section 3(3) of ERISA) established by an Obligor or, with respect to any such plan that is subject to Section 412 of the Code or Title IV of ERISA, an ERISA Affiliate.

Pledged Cash: the funds maintained in a blocked Deposit Account of Borrowers, which may not be withdrawn without the Agent’s prior consent (such consent not to be unreasonably withheld if (i) upon and after giving effect to such withdrawal, no Default or Event of Default shall have occurred and be continuing and (ii) immediately after such withdrawal (for clarification, including after giving effect to any recalculation of the Borrowing Base upon giving effect to such withdrawal), Availability would be a positive number), and which are subject to effective security documents, in form and substance satisfactory to Agent, that provide Agent with a perfected first priority security interest in and Lien on such funds; provided that, for clarification, no Pledged Cash shall also constitute Term Debt Cash Collateral and no Term Debt Cash Collateral shall also constitute Pledged Cash.

Prepayment Conditions: means with respect to a payment (whether (x) voluntary or mandatory, (y) in respect of cash settlement, net cash settlement or cash payment in lieu of issuing fractional shares with respect to Convertible Notes Debt, or (z) a prepayment, redemption, retirement, defeasance or acquisition) either: (a)(i) no Event of Default exists or would result therefrom, (ii) Excess Availability is greater than an amount equal to 20% of the aggregate Revolver Commitments immediately after giving effect to any such payment, and (iii) Borrowers shall have delivered to Agent one (1) Business Day’s prior written notice of any such payment accompanied by detailed calculations confirming that Borrowers are in compliance with the requirements set forth in this clause (a); or (b) if Excess Availability is less than or equal to an amount equal to 20% of the aggregate Revolver Commitments immediately after giving effect to any such payment, (i) no Event of Default exists or would result therefrom, (ii) Excess Availability is greater than an amount equal to 15% of the aggregate Revolver Commitments immediately after giving effect to any such payment, (iii) on a pro forma basis the Fixed Charge Coverage Ratio, measured on a trailing twelve (12) month basis after giving effect to any such payment and recomputed for the most recent month for which financial statements have been delivered to Agent, is greater than 1.00 to 1.00, and (iv) Borrowers shall have delivered to Agent one (1) Business Day’s prior written notice of any such prepayment accompanied by detailed calculations confirming that Borrowers are in compliance with the requirements set forth in this clause (b).

Prime Rate: the rate of interest announced by Bank of America from time to time as its prime rate.  Such rate is set by Bank of America on the basis of various factors, including its costs and desired return, general economic conditions and other factors, and is used as a reference point for pricing some loans, which may be priced at, above or below such rate.  Any change in such rate announced by Bank of

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America shall take effect at the opening of business on the day specified in the public announcement of such change.

Pro Rata: with respect to any Lender, a percentage (carried out to the ninth decimal place) determined (a) while Revolver Commitments are outstanding, by dividing the amount of such Lender’s Revolver Commitment by the aggregate amount of all Revolver Commitments; and (b) at any other time, by dividing the amount of such Lender’s Loans and LC Obligations by the aggregate amount of all outstanding Loans and LC Obligations.

Properly Contested: with respect to any obligation of an Obligor, (a) the obligation is subject to a bona fide dispute regarding amount or the Obligor’s liability to pay; (b) the obligation is being properly contested in good faith by appropriate proceedings promptly instituted and diligently pursued; (c) appropriate reserves have been established in accordance with GAAP; (d) non-payment could not reasonably be expected to have a Material Adverse Effect, nor result in forfeiture or sale of any assets of the Obligor; (e) no Lien is imposed on assets of the Obligor, unless bonded and stayed to the satisfaction of Agent; and (f) if the obligation results from entry of a judgment or other order, such judgment or order is stayed pending appeal or other judicial review.

Property: any interest in any kind of property or asset, whether real, personal or mixed, or tangible or intangible.

Protective Advances: as defined in Section 2.1.6.

Purchase Money Debt: (a) Debt (other than the Obligations or Capital Leases) for payment of any of the purchase price of fixed assets; (b) Debt (other than the Obligations or Capital Leases) incurred within 30 days before or after acquisition of any fixed assets, for the purpose of financing any of the purchase price thereof; and (c) any renewals, extensions or refinancings (but not increases) thereof.

Purchase Money Lien: a Lien that secures Purchase Money Debt, encumbering only the fixed assets acquired with such Debt and constituting a purchase money security interest under the UCC, excluding all Capital Leases.

RCRA: the Resource Conservation and Recovery Act (42 U.S.C. §§ 6991-6991i).

Real Estate: all right, title and interest (whether as owner, lessor or lessee) in any real Property or any buildings, structures, parking areas or other improvements thereon.

Real Estate Collateral: means all Real Estate owned by any Borrower or Guarantor listed on Schedule 7.3.1, any Real Estate owned by any Borrower or Guarantor that is acquired after the Closing Date with a net book value in excess of $1,000,000 and any additional Real Estate owned by any Borrower or Guarantor to the extent that the aggregate net book value of all such Real Estate owned by Borrowers and Guarantors that does not constitute Real Estate Collateral exceeds $15,000,000.

Refinancing Conditions: the following conditions for Refinancing Debt:  (a) it is in an aggregate principal amount that does not exceed the principal amount of the Debt being extended, renewed or refinanced; (b) it has a final maturity no sooner than, a weighted average life no less than, and an interest rate no greater than, the Debt being extended, renewed or refinanced; (c) it is subordinated to the Obligations at least to the same extent as the Debt being extended, renewed or refinanced; (d) the representations, covenants and defaults applicable to it are no less favorable to Borrowers than those applicable to the Debt being extended, renewed or refinanced; (e) no additional Lien is granted to secure

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it; (f) no additional Person is obligated on such Debt; and (g) upon giving effect to it, no Default or Event of Default exists.

Refinancing Debt: Borrowed Money that is the result of an extension, renewal or refinancing of Debt permitted under Section 10.2.1(b), (d), (k), (p), (s), (t) or (v).

Reimbursement Date: as defined in Section 2.3.2.

Related Real Estate Documents: with respect to any Real Estate subject to a Mortgage, the following, in form and substance satisfactory to Agent and received by Agent for review at least 15 days (or such fewer days as may be agreed between the Agent and Borrower Agent in writing) prior to the effective date of the Mortgage: (a) a mortgagee title policy (or binder therefor) covering Agent’s interest under the Mortgage, in a form and amount and by an insurer acceptable to Agent, which must be fully paid on such effective date; (b) such assignments of leases, estoppel letters, attornment agreements, consents, waivers and releases as Agent may require with respect to other Persons having an interest in the Real Estate; (c) flood insurance in an amount, with endorsements and by an insurer acceptable to Agent, if the Real Estate is within a flood plain; and (d) an Environmental Agreement and such other documents, instruments or agreements as Agent may reasonably require with respect to any environmental risks regarding the Real Estate.

Rent and Charges Reserve: the aggregate of (a) all past due rent and other amounts owing by an Obligor to any landlord, warehouseman, processor, repairman, mechanic, shipper, freight forwarder, broker or other Person who possesses any Collateral or could assert a Lien on any Collateral; and (b) a reserve at least equal to three months’ rent and other charges that could be payable to any such Person, unless it has executed a Lien Waiver.

Rentals: with respect to any Person, the aggregate fixed amounts payable by such Person under any Operating Lease.

Report: as defined in Section 12.2.3.

Reportable Event: any of the events set forth in Section 4043(c) of ERISA, other than events for which the 30 day notice period has been waived.

Reporting Trigger Period: the period (a) commencing on the day that an Event of Default occurs, or Excess Availability is less than an amount equal to 15% of the aggregate Revolver Commitments at any time; and (b) continuing until, during the preceding thirty (30) consecutive days, no Event of Default has existed and Excess Availability has been greater than or equal to an amount equal to 15% of the aggregate Revolver Commitments at all times.

Required Lenders: Lenders (subject to Section 4.2) having (a) Revolver Commitments in excess of 50% of the aggregate Revolver Commitments; and (b) if the Revolver Commitments have terminated, Loans in excess of 50% of all outstanding Loans; provided, however, that at any time there are 2 or more Lenders, “Required Lenders” must include at least 2 Lenders.

Reserve Percentage: the reserve percentage (expressed as a decimal, rounded up to the nearest 1/8th of 1%) applicable to member banks under regulations issued from time to time by the Board of Governors for determining the maximum reserve requirement (including any emergency, supplemental or other marginal reserve requirement) with respect to Eurocurrency funding (currently referred to as “Eurocurrency liabilities”).

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Restricted Cash: cash of Borrowers that is in blocked Deposit Accounts of Borrowers over which only Agent has control, subject to Deposit Account Control Agreements in form and substance satisfactory to Agent.

Restricted Investment: any Investment by a Borrower or Subsidiary, other than (a) Investments in (i) Subsidiaries to the extent existing on the Closing Date, (ii) Subsidiaries that become a Borrower in accordance with Section 10.1.9 before or concurrently with the making of such Investment, or (iii) another Borrower; (b) Cash Equivalents that are subject to Agent’s Lien and control, pursuant to documentation in form and substance satisfactory to Agent; (c) loans and advances permitted under Section 10.2.7; (d) Investments consisting of accounts receivable created, acquired or made by any Obligor in the Ordinary Course of Business and payable or dischargeable in accordance with customary trade terms; (e) Investments consisting of Equity Interests, obligations, securities or other Property received by any Obligor in settlement of accounts receivable from bankrupt obligors; (f) Investments existing on the Closing Date and set forth on Schedule P-1; (g) Permitted Acquisitions; (h) Investments resulting from pledges and deposits constituting Permitted Liens; (i) Hedging Agreements to the extent permitted under Section 10.2.15; (j) Investments made in the Ordinary Course of Business in connection with obtaining, maintaining or renewing customer contracts so long as the aggregate amount of all such Investments made after the Closing Date do not exceed $3,000,000; provided, however, that any returns on such Investments recovered by a Borrower shall be deemed to reduce, on a dollar for dollar basis, the amount of such Investments for purposes of calculating compliance with the foregoing limit; (k) any Investment (other than an Acquisition) made if either: (i) (A) both immediately before and immediately after giving effect to such Investment, no Event of Default exists and Excess Availability is greater than an amount equal to 15% of the aggregate Revolver Commitments, and (B) on a pro forma basis the Fixed Charge Coverage Ratio, measured on a trailing twelve (12) month basis after giving effect to such Investment and recomputed for the most recent month for which financial statements have been delivered to Agent, is greater than 1.00 to 1.00; or (ii) both immediately before and immediately after giving effect to such Investment, no Event of Default exists and Excess Availability is greater than an amount equal to 20% of the aggregate Revolver Commitments; (l) Investments otherwise permitted by the Required Lenders in writing; and (m) the Specified Notes Hedge Transaction and Specified Warrant Transaction to the extent constituting an Investment.

Restrictive Agreement: an agreement (other than a Loan Document) that conditions or restricts the right of any Borrower, Subsidiary or other Obligor to incur or repay Borrowed Money, to grant Liens on any Borrower’s or Guarantor’s assets, to declare or make Distributions, to modify, extend or renew any agreement evidencing Borrowed Money, or to repay any intercompany Debt; provided that an agreement  that conditions or restricts the right of any Borrower, Subsidiary or other Obligor to grant Liens on such person’s leased equipment that is subject to a Capital Lease shall not be deemed a Restrictive Agreement.

Revolver Commitment: for any Lender, its obligation to make Revolver Loans and to participate in LC Obligations up to the maximum principal amount shown on Schedule 1.1, or as hereafter modified pursuant to Section 2.1.7 or an Assignment and Acceptance to which it is a party.  “Revolver Commitments” means the aggregate amount of such commitments of all Lenders.

Revolver Loan: a loan made pursuant to Section 2.1, and any Swingline Loan, Overadvance Loan or Protective Advance.

Revolver Note: a promissory note to be executed by Borrowers in favor of a Lender in the form of Exhibit A, which shall be in the amount of such Lender’s Revolver Commitment and shall evidence the Revolver Loans made by such Lender.

Revolver Priority Collateral: as defined in the Intercreditor Agreement.

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Revolver Springing Maturity Date: means, upon the occurrence of any Revolver Springing Maturity Event, the date that is ninety (90) days prior to then earliest TD Early Maturity Date.

Revolver Springing Maturity Event: means the existence of any condition or the occurrence of any event on any date that is within 90 days of any TD Trigger Date that would otherwise constitute a Term Debt Early Termination Event.

Revolver Termination Date: the earliest of: (x) any Term Debt Reserve Shortfall Date, (y) March 2, 2020 or (z) Revolver Springing Maturity Date.

Royalties: all royalties, fees, expense reimbursement and other amounts payable by a Borrower under a License.

Sanction(s): any sanction administered or enforced by the United States Government (including without limitation, OFAC), the United Nations Security Council, the European Union, Her Majesty’s Treasury (“HMT”) or other relevant sanctions authority.

S&P: Standard & Poor’s Ratings Services, a division of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc., and its successors.

SCP Borrowing Base: on any date of determination, an amount equal to the sum of (a) 85% of the Value of SCP Eligible Accounts, plus (b) the lesser of (i) (x) prior to the Eleventh Amendment Effective Date, 65% of the Value of SCP Eligible Inventory and (y) on or after the Eleventh Amendment Effective Date, 70% of the Value of SCP Eligible Inventory; or (ii) 85% of the NOLV Percentage of the Value of SCP Eligible Inventory.

SCP Dilution Percent: the percent, determined for the immediately prior 90 or 365 consecutive days (at Agent’s option), equal to (a) bad debt write-downs or write-offs, discounts, returns, promotions, credits, credit memos and other dilutive items with respect to Accounts of the SCP Group, divided by (b) gross sales of the SCP Group.

SCP Dilution Reserve: as of any date of determination, an amount sufficient to reduce the advance rate against SCP Eligible Accounts by the percentage points (rounded to the nearest 1/10 of 1%) by which the SCP Dilution Percent is in excess of 5.0%.

SCP Eligible Account: an Account owing to any Borrower in the SCP Group that arises in the Ordinary Course of Business from the sale of goods or rendition of services, is payable in Dollars and is deemed by Agent, in its Credit Judgment, to be a SCP Eligible Account.  Without limiting the foregoing, no such Account shall be a SCP Eligible Account if:

(a)                                 it is unpaid for more than 60 days after the original due date, or more than 90 days after the original invoice date;

(b)                                 50% or more of the Accounts owing by the Account Debtor to Borrowers in the SCP Group are not SCP Eligible Accounts under the foregoing clause;

(c)                                  when aggregated with other Accounts owing by the Account Debtor to Borrowers in the SCP Group, it exceeds 15% of the aggregate SCP Eligible Accounts (or such higher percentage as the Required Lenders may establish for the Account Debtor from time to time);

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(d)                                 it does not conform with a covenant or representation herein;

(e)                                  it is subject to a potential offset, counterclaim, dispute, deduction, discount (other than an early-pay discount offered as part of normal-course selling terms), recoupment, reserve, defense, chargeback, credit or allowance by the Account Debtor, whether it is a creditor, a supplier or otherwise (but ineligibility shall be limited to the amount thereof);

(f)                                   an Insolvency Proceeding has been commenced by or against the Account Debtor; or the Account Debtor has failed, has suspended or ceased doing business, is liquidating, dissolving or winding up its affairs, or is not Solvent; or the applicable Borrower is not able to bring suit or enforce remedies against the Account Debtor through judicial process;

(g)                                  the Account Debtor is organized or has its principal offices or assets outside the United States or Canada unless (i) such Account is supported by an irrevocable letter of credit satisfactory to Agent (as to form, substance, and issuer or domestic confirming bank); and (ii) such letter of credit has been delivered to Agent and is directly drawable by Agent;

(h)                                 it is owing by a Government Authority, unless the Account Debtor is the United States or any State, department, agency or instrumentality thereof and the Assignment of Claims Act or any similar State or local law, if applicable, has been complied with in a manner satisfactory to Agent;

(i)                                     it is not subject to a duly perfected, first priority Lien in favor of Agent, or is subject to any Lien other than a Permitted Lien which has been explicitly disclosed to Agent in writing;

(j)                                    the goods giving rise to it have not been delivered to and accepted by the Account Debtor, the services giving rise to it have not been accepted by the Account Debtor, or it otherwise does not represent a final sale;

(k)                                 it is evidenced by Chattel Paper or an Instrument of any kind, or has been reduced to judgment;

(l)                                     its payment has been extended, the Account Debtor has made a partial payment, or it arises from a sale on a cash-on-delivery basis;

(m)                             it arises from a sale to an Affiliate, from a sale on a ▇▇▇▇-and-hold, guaranteed sale, sale-or-return, sale-on-approval, consignment, or other repurchase or return basis, or from a sale to a Person for personal, family or household purposes;

(n)                                 it represents a progress billing or retainage; or

(o)                                 it includes a billing for interest, fees or late charges, but ineligibility shall be limited to the extent thereof.

In calculating delinquent portions of Accounts under clauses (a) and (b), credit balances more than 90 days old will be excluded.

SCP Eligible Inventory: Inventory owned by any Borrower in the SCP Group that Agent, in its Credit Judgment, deems to be SCP Eligible Inventory.  Without limiting the foregoing, no such Inventory shall be SCP Eligible Inventory unless it:

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(a)                                 is finished goods or raw materials, and not work-in-process, packaging or shipping materials, labels, samples, display items, bags, replacement parts or manufacturing supplies;

(b)                                 is not held on consignment, nor subject to any deposit or downpayment;

(c)                                  is in new and saleable condition and is not damaged, defective, shopworn or otherwise unfit for sale;

(d)                                 is not slow-moving, obsolete or unmerchantable, and does not constitute returned or repossessed goods;

(e)                                  meets all standards imposed by any Governmental Authority, and does not constitute hazardous materials under any Environmental Law;

(f)                                   conforms with the covenants and representations herein;

(g)                                  is subject to Agent’s duly perfected, first priority Lien, and no other Lien other than Permitted Liens which have been explicitly disclosed to Agent in writing;

(h)                                 is within the continental United States, is not in transit except between locations of Borrowers, and is not consigned to any Person;

(i)                                     is not subject to any warehouse receipt or negotiable Document;

(j)                                    is not subject to any License or other arrangement that restricts such Borrower’s or Agent’s right to dispose of such Inventory, unless Agent has received an appropriate Lien Waiver;

(k)                                 is not located on leased premises or in the possession of a warehouseman, processor, repairman, mechanic, shipper, freight forwarder or other Person, unless the lessor or such Person has delivered a Lien Waiver or an appropriate Rent and Charges Reserve has been established; and

(l)                                     is reflected in the details of a current perpetual inventory report.

SCP Group: collectively, Headwaters Construction Materials, Inc, a Utah corporation, HCM Utah, LLC, a Utah limited liability company, and Headwaters Construction Materials, LLC, a Texas limited liability company.

Second Lien Collateral: Collateral consisting of the “Notes Priority Collateral” under and as defined in the Intercreditor Agreement as modified, supplemented, amended and amended and restated from time to time, in each case, with the Agent’s consent.

Secured Parties: Agent, Issuing Bank, Lenders and providers of Bank Products.

Security Documents: the Guaranties, Mortgages, Patent Security Agreements, Trademark Security Agreements, Deposit Account Control Agreements, and all other documents, instruments and agreements now or hereafter securing (or given with the intent to secure) any Obligations.

Senior Notes Refinancing Condition: the following conditions for Senior Notes Refinancing Debt: (a) all such Debt is in an aggregate principal amount that does not exceed $400,000,000; (b) all of

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the proceeds of such Debt are used (i) to repurchase the Senior Secured Notes through a tender offer, open market purchase, redemption or discharge of the Senior Secured Notes and (ii) to pay reasonable, documented, out-of-pocket costs and expenses incurred by Borrowers or Parent in connection with the issuance of such Debt, including tender premiums, consent payments, redemption premiums and accrued and unpaid interest; provided, however, that up to $10,000,000 of the proceeds of such Debt may be used for working capital and other lawful corporate purposes of Borrowers and Parent; (c) any such Debt has a final maturity no sooner than, a weighted average life no less than, and an interest rate no greater than, the Debt evidenced by the Senior Secured Notes Documents; (d) any such Debt is subordinated to the Obligations at least to the same extent as the Debt evidenced by the Senior Secured Notes Documents; (e) all such Debt is subject to the Intercreditor Agreement; (f) the representations, covenants and defaults applicable to any such Debt are no less favorable to Borrowers than those applicable to the Debt evidenced by the Senior Secured Notes Documents; (g) no additional Lien is granted to secure any such Debt; (h) no additional Person is obligated on any such Debt; and (i) upon giving effect to any such Debt, no Default or Event of Default exists.

Senior Notes Refinancing Debt: Borrowed Money in respect of the 7 5/8% senior secured notes due 2019, issued by Parent pursuant to that certain Indenture dated March 11, 2011.

Senior Officer: the chairman of the board, president, chief executive officer or chief financial officer, treasurer or other responsible financial officer acceptable to the Agent, in each case, of a Borrower or, if the context requires, an Obligor, and, solely for the purposes of notices give under Section 4, any other officer or employee of the applicable Obligor so designated by any of the foregoing officers in a notice to the Agent or any other officer or employee of the applicable Obligor designated in or pursuant to an agreement between the applicable Obligor and the Agent.  Any document delivered hereunder that is signed by a Senior Officer of an Obligor shall be conclusively presumed to have been authorized by all necessary corporate, partnership and/or other action on the part of such Obligor and such Senior Officer shall be conclusively presumed to have acted on behalf of such Obligor.

Senior Secured Notes:  senior secured notes due not earlier than 2014 to be issued by Parent on the Closing Date and the Debt represented thereby, the terms and conditions of which are satisfactory to each Lender in its sole discretion.

Senior Secured Notes Documents:  the indenture to be entered into among Parent, certain of its subsidiaries listed therein and the trustee named therein, in respect of the Senior Secured Notes and all other instruments, agreements and other documents evidencing or governing the Senior Secured Notes or providing for any guaranty or other right in respect thereof, the terms and conditions of which are satisfactory to each Lender in its sole discretion.

Senior Secured Notes Collateral Agent:  Wilmington Trust, FSB, any successor Trustee under any indenture governing any Senior Notes Refinancing Debt.

Settlement Report: a report delivered by Agent to Lenders summarizing the Revolver Loans and participations in LC Obligations outstanding as of a given settlement date, allocated to Lenders on a Pro Rata basis in accordance with their Revolver Commitments.

Seventh Amendment Effective Date: December 13, 2012.

Solvent: as to any Person, such Person (a) owns Property whose fair salable value is greater than the amount required to pay all of its debts (including contingent, subordinated, unmatured and unliquidated liabilities); (b) owns Property whose present fair salable value (as defined below) is greater than the probable total liabilities (including contingent, subordinated, unmatured and unliquidated

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liabilities) of such Person as they become absolute and matured; (c) is able to pay all of its debts as they mature; (d) has capital that is not unreasonably small for its business and is sufficient to carry on its business and transactions and all business and transactions in which it is about to engage; (e) is not “insolvent” within the meaning of Section 101(32) of the Bankruptcy Code; and (f) has not incurred (by way of assumption or otherwise) any obligations or liabilities (contingent or otherwise) under any Loan Documents, or made any conveyance in connection therewith, with actual intent to hinder, delay or defraud either present or future creditors of such Person or any of its Affiliates.  “Fair salable value” means the amount that could be obtained for assets within a reasonable time, either through collection or through sale under ordinary selling conditions by a capable and diligent seller to an interested buyer who is willing (but under no compulsion) to purchase.

Specified Notes Hedge Transaction:  call options or capped call options on common stock of the Parent purchased by the Parent substantially concurrently with the incurrence of the Convertible Notes Debt, so long as no Default or Event of Default then exists, which options are exercisable by the Parent in connection with the conversion of the Convertible Notes Debt and the purchase price of which in the aggregate, net of the price of the warrants issued pursuant to the Specified Warrant Transaction, does not exceed twenty million dollars ($20,000,000), and the Specified Warrant Transaction.

Specified Warrant Transaction:  call options, warrants or rights to purchase common stock of the Parent sold by the Parent to the counterparties under the Specified Notes Hedge Transaction substantially concurrently with the incurrence of the Convertible Notes Debt, so long as no Default or Event of Default then exists, in connection with the Specified Notes Hedging Transaction, which warrants or options are exercisable in connection with the sale by the holders thereof of the common stock of the Parent pursuant to the Specified Notes Hedge Transaction.

Subordinated Debt: Debt incurred by a Borrower that is expressly subordinate and junior in right of payment to Full Payment of all Obligations, and is on terms (including maturity, interest, fees, repayment, covenants and subordination) satisfactory to the Required Lenders.

Subsidiary: any entity at least 50% of whose voting securities or Equity Interests is owned by a Borrower or any combination of Borrowers (including indirect ownership by a Borrower through other entities in which the Borrower directly or indirectly owns 50% of the voting securities or Equity Interests); provided that FlexCrete Building Systems, L.C., a Utah limited liability company shall not be considered a “Subsidiary” of a Borrower for any purpose under this Agreement, including, without limitation, for purposes of the covenants set forth in Section 10.3.

Swingline Loan: any Borrowing of Base Rate Revolver Loans funded with Agent’s funds, until such Borrowing is settled among Lenders or repaid by Borrowers.

Tapco Borrowing Base: on any date of determination, an amount equal to the sum of (a) 85% of the Value of Tapco Eligible Accounts, plus (b) the lesser of (i) (x) prior to the Eleventh Amendment Effective Date, 65% of the Value of Tapco Eligible Inventory and (y) on or after the Eleventh Amendment Effective Date, 70% of the Value of Tapco Eligible Inventory; or (ii) 85% of the NOLV Percentage of the Value of Tapco Eligible Inventory.

Tapco Dilution Percent: the percent, determined for the immediately prior 90 or 365 consecutive days (at Agent’s option), equal to (a) bad debt write-downs or write-offs, discounts, returns, promotions, credits, credit memos and other dilutive items with respect to Accounts of the Tapco Group, divided by (b) gross sales of the Tapco Group.

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Tapco Dilution Reserve: as of any date of determination, an amount sufficient to reduce the advance rate against Tapco Eligible Accounts by the percentage points (rounded to the nearest 1/10 of 1%) by which the Tapco Dilution Percent is in excess of 5.0%.

Tapco Eligible Account: an Account owing to any Borrower in the Tapco Group that arises in the Ordinary Course of Business from the sale of goods or rendition of services, is payable in Dollars and is deemed by Agent, in its Credit Judgment, to be a Tapco Eligible Account.  Without limiting the foregoing, no such Account shall be a Tapco Eligible Account if:

(a)                                 it is unpaid for more than 60 days after the original due date, or more than 90 days after the original invoice date;

(b)                                 50% or more of the Accounts owing by the Account Debtor to Borrowers in the Tapco Group are not Tapco Eligible Accounts under the foregoing clause;

(c)                                  when aggregated with other Accounts owing by the Account Debtor to Borrowers in the Tapco Group, it exceeds (i) in the case of The Home Depot, Inc., 20% of the aggregate Tapco Eligible Accounts, or (ii) in the case of all other Account Debtors, 15% of the aggregate Tapco Eligible Accounts (or such higher percentage as the Required Lenders may establish for the Account Debtor from time to time);

(d)                                 it does not conform with a covenant or representation herein;

(e)                                  it is subject to a potential offset, counterclaim, dispute, deduction, discount (other than an early-pay discount offered as part of normal-course selling terms), recoupment, reserve, defense, chargeback, credit or allowance by the Account Debtor, whether it is a creditor, a supplier or otherwise (but ineligibility shall be limited to the amount thereof);

(f)                                   an Insolvency Proceeding has been commenced by or against the Account Debtor; or the Account Debtor has failed, has suspended or ceased doing business, is liquidating, dissolving or winding up its affairs, or is not Solvent; or the applicable Borrower is not able to bring suit or enforce remedies against the Account Debtor through judicial process;

(g)                                  the Account Debtor is organized or has its principal offices or assets outside the United States or Canada unless (i) such Account is supported by an irrevocable letter of credit satisfactory to Agent (as to form, substance, and issuer or domestic confirming bank); and (ii) such letter of credit has been delivered to Agent and is directly drawable by Agent;

(h)                                 it is owing by a Government Authority, unless the Account Debtor is the United States or any State, department, agency or instrumentality thereof and the Assignment of Claims Act or any similar State or local law, if applicable, has been complied with in a manner satisfactory to Agent;

(i)                                     it is not subject to a duly perfected, first priority Lien in favor of Agent, or is subject to any Lien other than a Permitted Lien which has been explicitly disclosed to Agent in writing;

(j)                                    the goods giving rise to it have not been delivered to and accepted by the Account Debtor, the services giving rise to it have not been accepted by the Account Debtor, or it otherwise does not represent a final sale;

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(k)                                 it is evidenced by Chattel Paper or an Instrument of any kind, or has been reduced to judgment;

(l)                                     its payment has been extended, the Account Debtor has made a partial payment, or it arises from a sale on a cash-on-delivery basis;

(m)                             it arises from a sale to an Affiliate, from a sale on a ▇▇▇▇-and-hold, guaranteed sale, sale-or-return, sale-on-approval, consignment, or other repurchase or return basis, or from a sale to a Person for personal, family or household purposes;

(n)                                 it represents a progress billing or retainage;

(o)                                 Intentionally Omitted; or

(p)                                 it includes a billing for interest, fees or late charges, but ineligibility shall be limited to the extent thereof.

In calculating delinquent portions of Accounts under clauses (a) and (b), credit balances more than 90 days old will be excluded.

Tapco Eligible Inventory: Inventory owned by any Borrower in the Tapco Group that Agent, in its Credit Judgment, deems to be Tapco Eligible Inventory.  Without limiting the foregoing, no such Inventory shall be Tapco Eligible Inventory unless it:

(a)                                 is finished goods or raw materials, and not work-in-process, packaging or shipping materials, labels, samples, display items, bags, replacement parts or manufacturing supplies;

(b)                                 is not held on consignment, nor subject to any deposit or downpayment;

(c)                                  is in new and saleable condition and is not damaged, defective, shopworn or otherwise unfit for sale;

(d)                                 is not slow-moving, obsolete or unmerchantable, and does not constitute returned or repossessed goods;

(e)                                  meets all standards imposed by any Governmental Authority, and does not constitute hazardous materials under any Environmental Law;

(f)                                   conforms with the covenants and representations herein;

(g)                                  is subject to Agent’s duly perfected, first priority Lien, and no other Lien other than Permitted Liens which have been explicitly disclosed to Agent in writing;

(h)                                 is within the continental United States, is not in transit except between locations of Borrowers, and is not consigned to any Person;

(i)                                     is not subject to any warehouse receipt or negotiable Document;

(j)                                    is not subject to any License or other arrangement that restricts such Borrower’s or Agent’s right to dispose of such Inventory, unless Agent has received an appropriate Lien Waiver;

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(k)                                 is not located on leased premises or in the possession of a warehouseman, processor, repairman, mechanic, shipper, freight forwarder or other Person, unless the lessor or such Person has delivered a Lien Waiver or an appropriate Rent and Charges Reserve has been established;

(l)                                     does not consist of molds;

(o)                                 Intentionally Omitted; and

(l)                                     is reflected in the details of a current perpetual inventory report.

Tapco Group: collectively, Tapco International Corporation, a Michigan corporation, and Atlantic Shutter Systems, Inc., a South Carolina corporation.

Taxes: all present or future taxes, levies, imposts, duties, deductions, withholdings (including backup withholding), assessments, fees or other charges imposed by any Governmental Authority, including any interest, additions to tax or penalties applicable thereto.

TD Trigger Date: has the meaning assigned to such term in the definition of Term Debt Early Termination Event.

TD Early Maturity Date: has the meaning assigned to such term in the definition of Term Debt Early Termination Event.

Term Debt: any one or more of the following Debt: (a) the Senior Notes Refinancing Debt, (b) 2013 Senior Notes Debt, (c) Term Loan B Debt, (d) Convertible Notes Debt, (e) Term Loan B Hedge, and (f) any Refinancing Debt of any of the foregoing permitted under this Agreement or under the Guaranty and Security Agreement.

Term Debt Cash Collateral: the funds maintained in a blocked Deposit Account of Borrowers, which funds may not be withdrawn without the Agent’s prior consent (such consent not to be unreasonably withheld if (i) upon and after giving effect to such withdrawal, no Default or Event of Default shall have occurred and be continuing and (ii) immediately after such withdrawal (for clarification, including after giving effect to any recalculation of the Borrowing Base upon giving effect to such withdrawal), Availability would be a positive number), and which are subject to effective security documents, in form and substance satisfactory to Agent, that provide Agent with a perfected first priority security interest in and Lien on such funds; provided that, for clarification, no Term Debt Cash Collateral shall also constitute Pledged Cash and no Pledged Cash shall also constitute Term Debt Cash Collateral.

Term Debt Early Termination Event:  means the existence of any condition or the occurrence of any event on any date (such date, a “TD Trigger Date”) that would cause the stated maturity of the Term Debt to be accelerated or otherwise shortened on such TD Trigger Date (such accelerated or shortened maturity date, a “TD Early Maturity Date”).  For the avoidance of doubt, (x) the inclusion of an event of default under any document governing Term Debt that is triggered based, in any manner, on the stated maturity of other Debt (other than any cross-default to such Debt) shall constitute a TD Early Maturity Date and a TD Trigger Date and (y) the inclusion of any other event of default, not described in clause (x) above, as a term or condition in any document governing Term Debt shall not by itself constitute a TD Early Maturity Date or a TD Trigger Date.

Term Debt Reserve:  (i) with respect to any of the Term Debt, a reserve established by the Agent at any time on or after the date that is ninety (90) days prior to the maturity date of such Term Debt,

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which reserve does not exceed the outstanding principal amount of such Term Debt, plus any other amounts owing with respect to, or to be paid in respect of, such Term Debt on or prior to the maturity date thereof; less (ii) the amount of the Term Debt Cash Collateral.  If the result of the foregoing is a negative number, then the Term Debt Reserve shall be zero (-0-).

Term Debt Reserve Shortfall Date:  each date that Agent establishes a Term Debt Reserve, unless at such time, (x) if there are no Revolver Loans or LC Obligations outstanding, Availability is greater than zero ($0), or (y) if there are any Revolver Loans or LC Obligations outstanding, the aggregate amount of such outstanding Revolver Loans and LC Obligations does not exceed the Borrowing Base (without giving effect to the LC Reserve for purposes of this calculation).

Term Loan B: means a term loan from the Term Loan B Lenders to Parent in an aggregate original principal amount not to exceed $450,000,000 pursuant to the Term Loan B Documents.

Term Loan B Agent: means Deutsche Bank AG New York Branch or such other Person from time to time party to the Term Loan B Documents acting in its capacity as agent for the Term Loan B Lenders.

Term Loan B Closing Date: means the date the Term Loan B Documents become effective in accordance with their terms and the Term Loan B is funded.

Term Loan B Conditions: the following conditions for the Term Loan B Debt: (a) the aggregate principal amount of such Debt at any time outstanding does not exceed $450,000,000; (b) the proceeds of such Debt are used (i) first, to repurchase all of the Senior Notes Refinancing Debt through a tender offer, open market purchase, redemption or discharge of the 7 5/8% senior secured notes due 2019, issued by the Parent and to pay reasonable, documented, out-of-pocket costs and expenses incurred by Borrowers or Parent in connection with the issuance of such Debt, including tender premiums, consent payments, redemption premiums and accrued and unpaid interest and (ii) second, the balance of the proceeds of such Debt to be used for working capital and other lawful corporate purposes; (c) such Debt has a term that is not less than five (5) years and a final maturity no sooner than ninety (90) days after the Revolver Termination Date (after giving effect to any TD Early Maturity Date); (d) any such Debt has an all-in-yield (which shall be determined by including interest rates, original issue discount, upfront fees, commitment fees and any other similar fees or charges) no greater than 6.00%, including, without limitation, an original issue discount not in excess of 1.00% of the aggregate principal amount of such Term Loan B Debt, (e) any such Debt is subordinated to the Obligations at least to the same extent as that permissible for the Senior Notes Refinancing Debt; (f) all such Debt is subject to the Intercreditor Agreement; (g) the final Term Loan B Documents (and the terms and conditions, the representations, covenants and defaults applicable thereto) shall be consistent with the draft term sheet with respect to the Term Loan B delivered to the Agent on the Eleventh Amendment Effective Date, with such changes and inclusion of additional terms and provisions as are not adverse to the interests of the Agent and the Lenders (as determined by Agent in its reasonable discretion); (h) upon giving effect to any such Debt, including, without limitation, upon giving effect to any additional incurrence of Term Loan B Debt after the date of the initial incurrence thereof, no Default or Event of Default exists; (i) the obligors in respect of such Debt shall not include any Person that is not an Obligor under the Senior Notes Refinancing Debt) and (j) all such Debt has been incurred by Parent on or prior to the date that is one hundred twenty (120) days after the Eleventh Amendment Effective Date.

Term Loan B Debt: means Borrowed Money incurred by Parent under the Term Loan B Documents that satisfies each of the Term Loan B Conditions.

Term Loan B Documents: means the documents evidencing the Term Loan B Debt.

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Term Loan B Lenders: means the financial institutions from time to time party to the Term Loan B Documents as lenders of the Term Loan B.

Term Loan B Hedge: means a Hedging Agreement with respect to interest rate risk under the Term Loan B.

Term Loan B Hedge Conditions: the following conditions for the Term Loan B Hedge: (a) the Term Loan B Hedge shall be designed to hedge against interest rate risks incurred in respect of the Term Loan B and not for speculative purposes; (b) to the extent secured, all such Term Loan B Hedge Debt is subject to the Intercreditor Agreement, provided that such liens shall encumber the same assets and have the same priority under the Intercreditor Agreement as the liens of the holders of the Term Loan B Debt; and (c) upon entering into the Term Loan B Hedge, no Default or Event of Default exists.

Term Loan B Hedge Debt: means Debt incurred by Parent under the Term Loan B Hedge that satisfies each of the Term Loan B Hedge Conditions.

Terminated Lender: as defined in Section 4.7.

Trademark Security Agreement: each trademark security agreement pursuant to which an Obligor grants to Agent, for the benefit of Secured Parties, a Lien on such Obligor’s interests in trademarks, as security for the Obligations.

Transferee: any actual or potential Eligible Assignee, Participant or other Person acquiring an interest in any Obligations.

Type: any type of a Loan (i.e., Base Rate Loan or LIBOR Loan) that has the same interest option and, in the case of LIBOR Loans, the same Interest Period.

UCC: the Uniform Commercial Code as in effect in the State of California or, when the laws of any other jurisdiction govern the perfection or enforcement of any Lien, the Uniform Commercial Code of such jurisdiction.

Unfunded Pension Liability: the excess of the present value of a Pension Plan’s benefit liabilities, as described in Section 4001(a)(16) of ERISA, over the current value of that Pension Plan’s assets, determined in accordance with the assumptions used for funding the Pension Plan pursuant to Section 412 of the Code as of the most recent valuation date for the applicable plan year.

Upstream Payment: a Distribution by a Subsidiary of a Borrower to such Borrower.

Unused Line Margin: the percentage set forth below, as determined by the Line Usage for the prior calendar month:

Notwithstanding the forgoing, from the Eighth Amendment Effective Date until November 30, 2013, the Unused Line Margin shall be determined as if Level II were applicable.  Thereafter, the Unused Line

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Margin shall be subject to increase or decrease based upon the Line Usage for the prior month, as determined by Agent.  If by the first day of a month, any Borrowing Base Certificate due in the preceding month has not been received, then, at the option of Agent or Required Lenders, the Unused Line Margin shall be determined as if Level II were applicable, from such day until the first day of the calendar month following actual receipt.

Value: (a) for Inventory, its value determined on the basis of the lower of cost or market, calculated on a first-in, first-out basis, and excluding any portion of cost attributable to intercompany profit among Borrowers and their Affiliates; and (b) for an Account, its face amount, net of any returns, rebates, discounts (calculated on the shortest terms), credits, allowances or Taxes (including sales, excise or other taxes) that have been or could be claimed by the Account Debtor or any other Person.

1.2.                            Accounting Terms.  Under the Loan Documents (except as otherwise specified herein), all accounting terms shall be interpreted, all accounting determinations shall be made, and all financial statements shall be prepared, in accordance with GAAP applied on a basis consistent with the most recent audited financial statements of Borrowers delivered to Agent before the Closing Date and using the same inventory valuation method as used in such financial statements, except for any change required or permitted by GAAP if Borrowers’ certified public accountants concur in such change and the change is disclosed to Agent; provided, however, that, in addition to the foregoing conditions, no such change shall be made in any accounting determinations used to calculate the Fixed Charge Coverage Ratio unless Section 10.3 is amended in a manner satisfactory to Required Lenders to take into account the effects of the change.

1.3.                            Uniform Commercial Code.  As used herein, the following terms are defined in accordance with the UCC in effect in the State of California from time to time:  “Chattel Paper,” “Commercial Tort Claim,” “Deposit Account,” “Document,” “Equipment,” “General Intangibles,” “Goods,” “Instrument,” “Investment Property,” “Letter-of-Credit Right” and “Supporting Obligation.”

1.4.                            Certain Matters of Construction.  The terms “herein,” “hereof,” “hereunder” and other words of similar import refer to this Agreement as a whole and not to any particular section, paragraph or subdivision.  Any pronoun used shall be deemed to cover all genders.  In the computation of periods of time from a specified date to a later specified date, “from” means “from and including,” and “to” and “until” each mean “to but excluding.”  The terms “including” and “include” shall mean “including, without limitation” and, for purposes of each Loan Document, the parties agree that the rule of ejusdem generis shall not be applicable to limit any provision.  Section titles appear as a matter of convenience only and shall not affect the interpretation of any Loan Document.  All references to (a) laws or statutes include all related rules, regulations, interpretations, amendments and successor provisions; (b) any document, instrument or agreement includes any amendments, waivers and other modifications, extensions or renewals (to the extent permitted by the Loan Documents); (c) any section means, unless the context otherwise requires, a section of this Agreement; (d) any exhibits or schedules mean, unless the context otherwise requires, exhibits and schedules attached hereto, which are hereby incorporated by reference; (e) any Person includes successors and assigns; (f) time of day means time of day at Agent’s notice address under Section 14.3.1; or (g) discretion of Agent, Issuing Bank or any Lender means the sole and absolute discretion of such Person.  All calculations of Value, fundings of Loans, issuances of Letters of Credit and payments of Obligations shall be in Dollars and, unless the context otherwise requires, all determinations (including calculations of Borrowing Base and financial covenants) made from time to time under the Loan Documents shall be made in light of the circumstances existing at such time.  Borrowing Base calculations shall be consistent with historical methods of valuation and calculation, and otherwise satisfactory to Agent (and not necessarily calculated in accordance with GAAP).  Borrowers shall have the burden of establishing any alleged negligence, misconduct or lack of good faith by Agent, Issuing Bank or any Lender under any Loan Documents.  No provision of any Loan

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Document shall be construed against any party by reason of such party having, or being deemed to have, drafted the provision.  Whenever the phrase “to the best of Borrowers’ knowledge” or words of similar import are used in any Loan Documents, it means actual knowledge of a Senior Officer, or knowledge that a Senior Officer would have obtained if he or she had engaged in good faith and diligent performance of his or her duties, including reasonably specific inquiries of employees or agents and a good faith attempt to ascertain the matter to which such phrase relates.

SECTION 2.                         CREDIT FACILITIES

2.1.                            Revolver Commitment.

2.1.1.                                 Revolver Loans.  Each Lender agrees, severally on a Pro Rata basis up to its Revolver Commitment, on the terms set forth herein, to make Revolver Loans to Borrowers from time to time through the Commitment Termination Date.  The Revolver Loans may be repaid and reborrowed as provided herein.  In no event shall Lenders have any obligation to honor a request for a Revolver Loan if the unpaid balance of Revolver Loans outstanding at such time (including the requested Loan) would exceed the Borrowing Base.

2.1.2.                                 Revolver Notes.  The Revolver Loans made by each Lender and interest accruing thereon shall be evidenced by the records of Agent and such Lender.  At the request of any Lender, Borrowers shall deliver a Revolver Note to such Lender.

2.1.3.                                 Use of Proceeds.  The proceeds of Revolver Loans shall be used by Borrowers solely (a) to pay fees and transaction expenses associated with the closing of this credit facility; (b) to pay Obligations in accordance with this Agreement; and (c) for working capital and other lawful corporate purposes of Borrowers.

2.1.4.                                 Termination of Revolver Commitments.  The Revolver Commitments shall terminate on the Revolver Termination Date, unless sooner terminated in accordance with this Agreement.  Upon at least 45 days prior written notice to Agent at any time after the first Loan Year, Borrowers may, at their option, terminate the Revolver Commitments and this credit facility.  Any notice of termination given by Borrowers shall be irrevocable.  On the termination date, Borrowers shall make Full Payment of all Obligations.

2.1.5.                                 Overadvances.  If the aggregate Revolver Loans exceed the Borrowing Base (“Overadvance”), the excess amount shall be payable by Borrowers on demand by Agent or the Required Lenders, but all such Revolver Loans shall nevertheless constitute Obligations secured by the Collateral and entitled to all benefits of the Loan Documents.  Unless its authority has been revoked in writing by Required Lenders, Agent may require Lenders to honor requests for Overadvance Loans and to forbear from requiring Borrowers to cure an Overadvance, (a) when no other Event of Default is known to Agent, as long as (i) the Overadvance does not continue for more than 30 consecutive days (and no Overadvance may exist for at least five consecutive days thereafter before further Overadvance Loans are required), and (ii) the Overadvance is not known by Agent to exceed 10% of the aggregate Revolver Commitments; and (b) regardless of whether an Event of Default exists, if Agent discovers an Overadvance not previously known by it to exist, as long as from the date of such discovery the Overadvance does not continue for more than 30 consecutive days.  In no event shall Overadvance Loans be required that would cause the outstanding Revolver Loans and LC Obligations to exceed the aggregate Revolver Commitments.  Any funding of an Overadvance Loan or sufferance of an Overadvance shall not constitute a waiver by Agent or Lenders of the Event of Default caused thereby.  In no event shall any Borrower or other Obligor be deemed a beneficiary of this Section nor authorized to enforce any of its terms.

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2.1.6.                                 Protective Advances.  Agent shall be authorized, in its discretion, at any time that any conditions in Section 6 are not satisfied, and without regard to the aggregate Commitments, to make Base Rate Revolver Loans (“Protective Advances”) (a) up to an aggregate amount of 10% of the aggregate Revolver Commitments outstanding at any time, if Agent deems such Loans necessary or desirable to preserve or protect Collateral, or to enhance the collectibility or repayment of Obligations; or (b) to pay any other amounts chargeable to Obligors under any Loan Documents, including costs, fees and expenses.  Each Lender shall participate in each Protective Advance on a Pro Rata basis.  Required Lenders may at any time revoke Agent’s authority to make further Protective Advances by written notice to Agent.  Absent such revocation, Agent’s determination that funding of a Protective Advance is appropriate shall be conclusive.

2.1.7.                                 Increase in Revolver Commitments.  Borrowers may request an increase in Revolver Commitments from time to time upon notice to Agent, as long as (a) the requested increase is in a minimum amount of $5,000,000 and is offered on the same terms as existing Revolver Commitments, except for a closing fee agreed to among Agent and Borrowers, (b) increases under this Section do not exceed $15,000,000 in the aggregate and no more than three (3) increases are made, and (c) the requested increase is consented to by any holders of Debt subject to the Intercreditor Agreement (to the extent deemed necessary by Agent).  Agent shall promptly notify Lenders of the requested increase and, within 20 Business Days thereafter, each Lender shall notify Agent if and to what extent such Lender commits to increase its Revolver Commitment.  Any Lender not responding within such period shall be deemed to have declined an increase.  If Lenders fail to commit to the full requested increase, Eligible Assignees may issue additional Revolver Commitments and become Lenders hereunder.  Agent may allocate, in its discretion, the increased Revolver Commitments among committing Lenders and, if necessary, Eligible Assignees.  Provided the conditions set forth in Section 6.2 are satisfied, total Revolver Commitments shall be increased by the requested amount (or such lesser amount committed by Lenders and Eligible Assignees) on a date agreed upon by Agent and Borrower Agent, but no later than 45 days following Borrowers’ increase request.  Agent, Borrowers, and new and existing Lenders shall execute and deliver such documents and agreements as Agent deems appropriate to evidence the increase in and allocations of Revolver Commitments.  On the effective date of an increase, the Revolver Usage and other exposures under the Revolver Commitments shall be reallocated among Lenders, and settled by Agent if necessary,  in accordance with Lenders’ adjusted shares of such Revolver Commitments.

2.2.                            Intentionally Omitted.

2.3.                            Letter of Credit Facility.

2.3.1.                                 Issuance of Letters of Credit.  Issuing Bank agrees to issue Letters of Credit from time to time until 30 days prior to the Revolver Termination Date (or until the Commitment Termination Date, if earlier), on the terms set forth herein, including the following:

(a)                                 Each Borrower acknowledges that Issuing Bank’s willingness to issue any Letter of Credit is conditioned upon Issuing Bank’s receipt of a LC Application with respect to the requested Letter of Credit, as well as such other instruments and agreements as Issuing Bank may customarily require for issuance of a letter of credit of similar type and amount.  Issuing Bank shall have no obligation to issue any Letter of Credit unless (i) Issuing Bank receives a LC Request and LC Application at least three Business Days prior to the requested date of issuance; (ii) each LC Condition is satisfied; and (iii) if a Defaulting Lender exists, such Lender or Borrowers have entered into arrangements satisfactory to Agent and Issuing Bank to eliminate any funding risk associated with the Defaulting Lender.  If Issuing Bank receives written notice from a Lender at least two Business Days before issuance of a Letter of Credit that any LC Condition has not been satisfied, Issuing Bank shall have no obligation to issue the requested Letter of Credit (or any other) until such notice is withdrawn in writing by that Lender or until

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Required Lenders have waived such condition in accordance with this Agreement.  Prior to receipt of any such notice, Issuing Bank shall not be deemed to have knowledge of any failure of any of the LC Conditions set forth in clauses (a) and (b) of the definition of L/C Conditions.

(b)                                 Letters of Credit may be requested by a Borrower only (i) to support obligations of such Borrower incurred in the Ordinary Course of Business; or (ii) for other purposes as Agent and Lenders may approve from time to time in writing.  The renewal or extension of any Letter of Credit shall be treated as the issuance of a new Letter of Credit, except that delivery of a new LC Application shall be required at the discretion of Issuing Bank.

(c)                                  Borrowers assume all risks of the acts, omissions or misuses of any Letter of Credit by the beneficiary.  In connection with issuance of any Letter of Credit, none of Agent, Issuing Bank or any Lender shall be responsible for the existence, character, quality, quantity, condition, packing, value or delivery of any goods purported to be represented by any Documents; any differences or variation in the character, quality, quantity, condition, packing, value or delivery of any goods from that expressed in any Documents; the form, validity, sufficiency, accuracy, genuineness or legal effect of any Documents or of any endorsements thereon; the time, place, manner or order in which shipment of goods is made; partial or incomplete shipment of, or failure to ship, any goods referred to in a Letter of Credit or Documents; any deviation from instructions, delay, default or fraud by any shipper or other Person in connection with any goods, shipment or delivery; any breach of contract between a shipper or vendor and a Borrower; errors, omissions, interruptions or delays in transmission or delivery of any messages, by mail, cable, telegraph, telex, telecopy, e-mail, telephone or otherwise; errors in interpretation of technical terms; the misapplication by a beneficiary of any Letter of Credit or the proceeds thereof; or any consequences arising from causes beyond the control of Issuing Bank, Agent or any Lender, including any act or omission of a Governmental Authority.  The rights and remedies of Issuing Bank under the Loan Documents shall be cumulative.  Issuing Bank shall be fully subrogated to the rights and remedies of each beneficiary whose claims against Borrowers are discharged with proceeds of any Letter of Credit.

(d)                                 In connection with its administration of and enforcement of rights or remedies under any Letters of Credit or LC Documents, Issuing Bank shall be entitled to act, and shall be fully protected in acting, upon any certification, documentation or communication in whatever form believed by Issuing Bank, in good faith, to be genuine and correct and to have been signed, sent or made by a proper Person, except to the extent Issuing Bank shall be grossly negligent in so doing or the same shall constitute willful misconduct.  Issuing Bank may consult with and employ legal counsel, accountants and other experts to advise it concerning its obligations, rights and remedies, and shall be entitled to act upon, and shall be fully protected in any action taken in good faith reliance upon, any advice given by such experts, except to the extent Issuing Bank shall be grossly negligent in so doing or the same shall constitute willful misconduct.  Issuing Bank may employ agents and attorneys-in-fact in connection with any matter relating to Letters of Credit or LC Documents, and shall not be liable for the negligence or misconduct of agents and attorneys-in-fact selected with reasonable care.

2.3.2.                                 Reimbursement; Participations.

(a)                                 If Issuing Bank honors any request for payment under a Letter of Credit, Borrowers shall pay to Issuing Bank, on the same day (“Reimbursement Date”), the amount paid by Issuing Bank under such Letter of Credit and if Borrowers fail to pay such amount on such day, Borrowers shall also pay interest in such amount at the interest rate for Base Rate Revolver Loans from the Reimbursement Date until payment by Borrowers.  The obligation of Borrowers to reimburse Issuing Bank for any payment made under a Letter of Credit shall be absolute, unconditional, irrevocable, and joint and several, and shall be paid without regard to any lack of validity or enforceability of any Letter of Credit or the existence of any claim, setoff, defense or other right that Borrowers may have at any time

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against the beneficiary.  Whether or not Borrower Agent submits a Notice of Borrowing, if Borrowers do not, on the Reimbursement Date, pay Issuing Bank the amount paid under the Letter of Credit, Borrowers shall be deemed to have requested a Borrowing of Base Rate Revolver Loans in an amount necessary to pay all amounts due Issuing Bank on any Reimbursement Date and each Lender agrees to fund its Pro Rata share of such deemed Borrowing whether or not the Commitments have terminated, an Overadvance exists or is created thereby, or the conditions in Section 6 are satisfied.

(b)                                 Upon issuance of a Letter of Credit, each Lender shall be deemed to have irrevocably and unconditionally purchased from Issuing Bank, without recourse or warranty, an undivided Pro Rata interest and participation in all LC Obligations relating to the Letter of Credit.  If Issuing Bank makes any payment under a Letter of Credit and Borrowers do not reimburse such payment on the Reimbursement Date, Agent shall promptly notify Lenders and each Lender shall promptly (within one Business Day) and unconditionally pay to Agent, for the benefit of Issuing Bank, the Lender’s Pro Rata share of such payment.  Upon request by a Lender, Issuing Bank shall furnish copies of any Letters of Credit and LC Documents in its possession at such time.

(c)                                  The obligation of each Lender to make payments to Agent for the account of Issuing Bank in connection with Issuing Bank’s payment under a Letter of Credit shall be absolute, unconditional and irrevocable, not subject to any counterclaim, setoff, qualification or exception whatsoever, and shall be made in accordance with this Agreement under all circumstances, irrespective of any lack of validity or unenforceability of any Loan Documents; any draft, certificate or other document presented under a Letter of Credit having been determined to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect; or the existence of any setoff or defense that any Obligor may have with respect to any Obligations.  Issuing Bank does not assume any responsibility for any failure or delay in performance or any breach by any Borrower or other Person of any obligations under any LC Documents.  Issuing Bank does not make to Lenders any express or implied warranty, representation or guaranty with respect to the Collateral, LC Documents or any Obligor.  Issuing Bank shall not be responsible to any Lender for any recitals, statements, information, representations or warranties contained in, or for the execution, validity, genuineness, effectiveness or enforceability of any LC Documents; the validity, genuineness, enforceability, collectibility, value or sufficiency of any Collateral or the perfection of any Lien therein; or the assets, liabilities, financial condition, results of operations, business, creditworthiness or legal status of any Obligor.

(d)                                 No Issuing Bank Indemnitee shall be liable to any Lender or other Person for any action taken or omitted to be taken in connection with any LC Documents except as a result of its actual gross negligence or willful misconduct.  Issuing Bank shall not have any liability to any Lender if Issuing Bank refrains from any action under any Letter of Credit or LC Documents until it receives written instructions from Required Lenders.

2.3.3.                                 Cash Collateral.  If any LC Obligations, whether or not then due or payable, shall for any reason be outstanding at any time (a) that an Event of Default exists, (b) that Availability is less than zero, (c) after the Commitment Termination Date, or (d) within 5 Business Days prior to the Revolver Termination Date, then Borrowers shall, at Issuing Bank’s, Agent’s or Required Lenders’ request, Cash Collateralize the maximum amount available to be drawn under all outstanding Letters of Credit and all other LC Obligations.  Borrowers shall, on demand by Issuing Bank or Agent from time to time, Cash Collateralize the LC Obligations of any Defaulting Lender.  If Borrowers fail to provide any Cash Collateral as required hereunder, Lenders may (and shall upon direction of Agent) advance, as Revolver Loans, the amount of the Cash Collateral required (whether or not the Commitments have terminated, an Overadvance exists or the conditions in Section 6 are satisfied).

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SECTION 3.                         INTEREST, FEES AND CHARGES

3.1.                            Interest.

3.1.1.                                 Rates and Payment of Interest.

(a)                                 The Obligations shall bear interest (i) if a Base Rate Loan, at the Base Rate in effect from time to time, plus the Applicable Margin; (ii) if a LIBOR Loan, at LIBOR for the applicable Interest Period, plus the Applicable Margin; and (iii) if any other Obligation (including, to the extent permitted by law, interest not paid when due), at the Base Rate in effect from time to time, plus the Applicable Margin for Base Rate Revolver Loans.  Interest shall accrue from the date the Loan is advanced or the Obligation is incurred or payable, until paid by Borrowers.  If a Loan is repaid on the same day made, one day’s interest shall accrue.

(b)                                 During an Insolvency Proceeding with respect to any Borrower, or during any other Event of Default if Agent or Required Lenders in their discretion so elect, Obligations shall bear interest at the Default Rate (whether before or after any judgment).  Each Borrower acknowledges that the cost and expense to Agent and Lenders due to an Event of Default are difficult to ascertain and that the Default Rate is a fair and reasonable estimate to compensate Agent and Lenders for this.

(c)                                  Interest accrued on the Loans shall be due and payable in arrears, (i) on the first day of each month; (ii) on any date of prepayment, with respect to the principal amount of Loans being prepaid; and (iii) on the Commitment Termination Date.  Interest accrued on any other Obligations shall be due and payable as provided in the Loan Documents and, if no payment date is specified, shall be due and payable on demand.  Notwithstanding the foregoing, interest accrued at the Default Rate shall be due and payable on demand.

3.1.2.                                 Application of LIBOR to Outstanding Loans.

(a)                                 Borrowers may on any Business Day, subject to delivery of a Notice of Conversion/Continuation, elect to convert any portion of the Base Rate Loans to, or to continue any LIBOR Loan at the end of its Interest Period as, a LIBOR Loan.  During any Default or Event of Default, Agent may (and shall at the direction of Required Lenders) declare that no Loan may be made, converted or continued as a LIBOR Loan.

(b)                                 Whenever Borrowers desire to convert or continue Loans as LIBOR Loans, Borrower Agent shall give Agent a Notice of Conversion/Continuation, no later than 11:00 a.m. at least three Business Days before the requested conversion or continuation date.  Promptly after receiving any such notice, Agent shall notify each Lender thereof.  Each Notice of Conversion/Continuation shall be irrevocable, and shall specify the amount of Loans to be converted or continued, the conversion or continuation date (which shall be a Business Day), and the duration of the Interest Period (which shall be deemed to be 30 days if not specified).  If, upon the expiration of any Interest Period in respect of any LIBOR Loans, Borrowers shall have failed to deliver a Notice of Conversion/Continuation, they shall be deemed to have elected to convert such Loans into Base Rate Loans.

3.1.3.                                 Interest Periods.  In connection with the making, conversion or continuation of any LIBOR Loans, Borrowers shall select an interest period (“Interest Period”) to apply, which interest period shall be 30, 60, or 90 days; provided, however, that:

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(a)                                 the Interest Period shall commence on the date the Loan is made or continued as, or converted into, a LIBOR Loan, and shall expire on the numerically corresponding day in the calendar month at its end;

(b)                                 if any Interest Period commences on a day for which there is no corresponding day in the calendar month at its end or if such corresponding day falls after the last Business Day of such month, then the Interest Period shall expire on the last Business Day of such month; and if any Interest Period would expire on a day that is not a Business Day, the period shall expire on the next Business Day; and

(c)                                  no Interest Period shall extend beyond the Revolver Termination Date.

3.2.                            Fees.

3.2.1.                                 Unused Line Fee.  Borrowers shall pay to Agent, for the Pro Rata benefit of Lenders, a fee equal to the Unused Line Margin per annum times the amount by which the Revolver Commitments exceed the average daily balance of Revolver Loans and LC Obligations during any month.  Such fee shall be payable in arrears, on the first day of each month and on the Commitment Termination Date.

3.2.2.                                 LC Facility Fees.  Borrowers shall pay (a) to Agent, for the Pro Rata benefit of Lenders, a fee equal to the Applicable Margin in effect for LIBOR Revolver Loans times the average daily maximum amount available to be drawn under outstanding Letters of Credit, which fee shall be payable monthly in arrears, on the first day of each month; (b) to Issuing Bank, for its own account, a fronting fee equal to 0.125% per annum on the average daily maximum amount available to be drawn under each outstanding Letter of Credit, which fee shall be payable monthly in arrears, on the first day of each month; and (c) to Issuing Bank, for its own account, all customary charges associated with the issuance, amending, negotiating, payment, processing, transfer and administration of Letters of Credit, which charges shall be paid as and when incurred.  During an Event of Default, the fee payable under clause (a) shall be increased by 2% per annum.

3.2.3.                                 Agent Fees.  In consideration of Agent’s syndication of the Commitments and service as Agent hereunder, Borrowers shall pay to Agent, for its own account, the fees described in the Fee Letter.

3.3.                            Computation of Interest, Fees, Yield Protection.  All interest, as well as fees and other charges calculated on a per annum basis, shall be computed for the actual days elapsed, based on a year of 360 days.  Each determination by Agent of any interest, fees or interest rate hereunder shall be final, conclusive and binding for all purposes, absent manifest error.  All fees shall be fully earned when due and shall not be subject to rebate, refund or proration.  All fees payable under Section 3.2 are compensation for services and are not, and shall not be deemed to be, interest or any other charge for the use, forbearance or detention of money.  A certificate as to amounts payable by Borrowers under Section 3.4, 3.6, 3.7, 3.9 or 5.9, submitted to Borrower Agent by Agent or the affected Lender, as applicable, shall be final, conclusive and binding for all purposes, absent manifest error, and Borrowers shall pay such amounts to the appropriate party within 10 days following receipt of the certificate.

3.4.                            Reimbursement Obligations.  Borrowers shall reimburse Agent and each Lender for all Extraordinary Expenses, except to the extent provided to the contrary in Section 14.2.  Borrowers shall also reimburse Agent for all legal, accounting, appraisal, consulting, and other fees, costs and expenses incurred by it in connection with (a) negotiation and preparation of any Loan Documents, including any amendment or other modification thereof; (b) administration of and actions relating to any Collateral,

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Loan Documents and transactions contemplated thereby, including any actions taken to perfect or maintain priority of Agent’s Liens on any Collateral, to maintain any insurance required hereunder or to verify Collateral; and (c) subject to the limits of Section 10.1.1(b), each inspection, audit or appraisal with respect to any Obligor or Collateral, whether prepared by Agent’s personnel or a third party.  All legal, accounting and consulting fees shall be charged to Borrowers by Agent’s professionals at their full hourly rates, regardless of any reduced or alternative fee billing arrangements that Agent, any Lender or any of their Affiliates may have with such professionals with respect to this or any other transaction.  If, for any reason (including inaccurate reporting on financial statements, a Borrowing Base Certificate, or a Compliance Certificate), it is determined that a higher Applicable Margin or Unused Line Margin should have applied to a period than was actually applied, then the proper margin shall be applied retroactively and Borrowers shall immediately pay to Agent, for the Pro Rata benefit of Lenders, an amount equal to the difference between the amount of interest and fees that would have accrued using the proper margin and the amount actually paid.  All amounts payable by Borrowers under this Section shall be due on demand.

3.5.                            Illegality.  If any Lender determines that any Applicable Law has made it unlawful, or that any Governmental Authority has asserted that it is unlawful, for any Lender or its applicable Lending Office to make, maintain or fund LIBOR Loans, or to determine or charge interest rates based upon LIBOR, or any Governmental Authority has imposed material restrictions on the authority of such Lender to purchase or sell, or to take deposits of, Dollars in the London interbank market, then, on notice thereof by such Lender to Agent, any obligation of such Lender to make or continue LIBOR Loans or to convert Base Rate Loans to LIBOR Loans shall be suspended until such Lender notifies Agent that the circumstances giving rise to such determination no longer exist.  Upon delivery of such notice, Borrowers shall prepay or, if applicable, convert all LIBOR Loans of such Lender to Base Rate Loans, either on the last day of the Interest Period therefor, if such Lender may lawfully continue to maintain such LIBOR Loans to such day, or immediately, if such Lender may not lawfully continue to maintain such LIBOR Loans.  Upon any such prepayment or conversion, Borrowers shall also pay accrued interest on the amount so prepaid or converted.

3.6.                            Inability to Determine Rates.  If in connection with any request for a LIBOR Loan or a conversion to or continuation thereof, (a) the Agent determines that (i) Dollar deposits are not being offered to banks in the London interbank market for the applicable amount and Interest Period of such LIBOR Loan, or (ii) adequate and reasonable means do not exist for determining LIBOR for any requested Interest Period with respect to a proposed LIBOR Loan or in connection with an existing or proposed Base Rate Loan (in each case with respect to clause (a) (i) above, “Impacted Loans”), or (b) the Agent or the affected Lenders determine that for any reason that LIBOR for any requested Interest Period with respect to a proposed LIBOR Loan does not adequately and fairly reflect the cost to such Lenders of funding such LIBOR Loan, the Agent will promptly so notify the Borrowers and each Lender.  Thereafter, (x) the obligation of the Lenders to make or maintain LIBOR Loans shall be suspended, (to the extent of the affected LIBOR Loans or Interest Periods), and (y) in the event of a determination described in the preceding sentence with respect to the LIBOR component of the Base Rate, the utilization of the LIBOR component in determining the Base Rate shall be suspended, in each case until the Agent upon the instruction of the affected Lenders revokes such notice.  Upon receipt of a notice from the Agent suspending the obligation of the Lenders to make LIBOR Loans, the Borrowers may revoke any pending request for a Borrowing of, conversion to or continuation of LIBOR Loans (to the extent of the affected LIBOR Loans or Interest Periods) or, failing that, will be deemed to have converted such request into a request for a Borrowing of Base Rate Loans in the amount specified therein.

Notwithstanding the foregoing, if the Agent has made the determination described in clause (a)(i) of this Section 3.6, the Agent, in consultation with the Borrowers and the affected Lenders, may establish an alternative interest rate for the Impacted Loans, in which case, such alternative rate of

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interest shall apply with respect to the Impacted Loans until (1) the Agent revokes the notice delivered with respect to the Impacted Loans under clause (a) of the first sentence of this section, (2) the Agent or the affected Lenders notify the Agent and the Borrowers that such alternative interest rate does not adequately and fairly reflect the cost to such Lenders of funding the Impacted Loans, or (3) any Lender determines that any Applicable Law has made it unlawful, or that any Governmental Authority has asserted that it is unlawful, for such Lender or its applicable lending office to make, maintain or fund Loans whose interest is determined by reference to such alternative rate of interest or to determine or charge interest rates based upon such rate or any Governmental Authority has imposed material restrictions on the authority of such Lender to do any of the foregoing and provides the Agent and the Borrowers written notice thereof.

3.7.                            Increased Costs; Capital Adequacy.

3.7.1.                                 Change in Law.  If any Change in Law (other than any Change of Law by way of imposition or increase of Reserve Percentage included in determining LIBOR) shall:

(a)                                 impose modify or deem applicable any reserve, special deposit, compulsory loan, insurance charge or similar requirement against assets of, deposits with or for the account of, or credit extended or participated in by, any Lender (except any reserve requirement reflected in LIBOR) or Issuing Bank;

(b)                                 subject any Lender or Issuing Bank to any Tax with respect to any Loan, Loan Document, Letter of Credit or participation in LC Obligations, or change the basis of taxation of payments to such Lender or Issuing Bank in respect thereof (except for Indemnified Taxes or Other Taxes covered by Section 5.9 and the imposition of, or any change in the rate of, any Excluded Tax payable by such Lender or Issuing Bank); or

(c)                                  impose on any Lender or Issuing Bank or the London interbank market any other condition, cost or expense affecting any Loan, Loan Document, Letter of Credit or participation in LC Obligations;

and the result thereof shall be to increase the cost to such Lender of making or maintaining any LIBOR Loan (or of maintaining its obligation to make any such Loan), or to increase the cost to such Lender or Issuing Bank of participating in, issuing or maintaining any Letter of Credit (or of maintaining its obligation to participate in or to issue any Letter of Credit), or to reduce the amount of any sum received or receivable by such Lender or Issuing Bank hereunder (whether of principal, interest or any other amount) then, upon request of such Lender or Issuing Bank, Borrowers will pay to such Lender or Issuing Bank, as applicable, such additional amount or amounts as will compensate such Lender or Issuing Bank, as applicable, for such additional costs incurred or reduction suffered.

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

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3.7.3.                                 Compensation.  Failure or delay on the part of any Lender or Issuing Bank to demand compensation pursuant to this Section shall not constitute a waiver of its right to demand such compensation, but Borrowers shall not be required to compensate a Lender or Issuing Bank for any increased costs incurred or reductions suffered more than nine months prior to the date that the Lender or Issuing Bank notifies Borrower Agent of the Change in Law giving rise to such increased costs or reductions and of such Lender’s or Issuing Bank’s intention to claim compensation therefor (except that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the nine-month period referred to above shall be extended to include the period of retroactive effect thereof).

3.8.                            Mitigation.  If any Lender gives a notice under Section 3.5 or requests compensation under Section 3.7, or if Borrowers are required to pay additional amounts with respect to a Lender under Section 5.9, then such Lender shall use reasonable efforts to designate a different Lending Office or to assign its rights and obligations hereunder to another of its offices, branches or Affiliates, if, in the judgment of such Lender, such designation or assignment (a) would eliminate the need for such notice or reduce amounts payable or to be withheld in the future, as applicable; and (b) would not subject the Lender to any unreimbursed cost or expense and would not otherwise be disadvantageous to it.  Borrowers shall pay all reasonable costs and expenses incurred by any Lender in connection with any such designation or assignment.

3.9.                            Funding Losses.  If for any reason (other than default by a Lender) (a) any Borrowing of, or conversion to or continuation of, a LIBOR Loan does not occur on the date specified therefor in a Notice of Borrowing or Notice of Conversion/Continuation (whether or not withdrawn), (b) any repayment or conversion of a LIBOR Loan occurs on a day other than the end of its Interest Period, or (c) Borrowers fail to repay a LIBOR Loan when required hereunder, then Borrowers shall pay to Agent its customary administrative charge and to each Lender all losses and expenses that it sustains as a consequence thereof, including loss of anticipated profits and any loss or expense arising from liquidation or redeployment of funds or from fees payable to terminate deposits of matching funds.  Lenders shall not be required to purchase Dollar deposits in the London interbank market or any other offshore Dollar market to fund any LIBOR Loan, but the provisions hereof shall be deemed to apply as if each Lender had purchased such deposits to fund its LIBOR Loans.

3.10.                     Maximum Interest.  Notwithstanding anything to the contrary contained in any Loan Document, the interest paid or agreed to be paid under the Loan Documents shall not exceed the maximum rate of non-usurious interest permitted by Applicable Law (“maximum rate”).  If Agent or any Lender shall receive interest in an amount that exceeds the maximum rate, the excess interest shall be applied to the principal of the Obligations or, if it exceeds such unpaid principal, refunded to Borrowers.  In determining whether the interest contracted for, charged or received by Agent or a Lender exceeds the maximum rate, such Person may, to the extent permitted by Applicable Law, (a) characterize any payment that is not principal as an expense, fee or premium rather than interest; (b) exclude voluntary prepayments and the effects thereof; and (c) amortize, prorate, allocate and spread in equal or unequal parts the total amount of interest throughout the contemplated term of the Obligations hereunder.

SECTION 4.                         LOAN ADMINISTRATION

4.1.                            Manner of Borrowing and Funding Revolver Loans.

4.1.1.                                 Notice of Borrowing.

(a)                                 Whenever Borrowers desire funding of a Borrowing of Revolver Loans, Borrower Agent shall give Agent irrevocable notice, which may be given by (A) telephone, or (B) a Notice of Borrowing; provided that any telephone notice must be confirmed promptly by delivery to the

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Administrative Agent of a Notice of Borrowing.  Such Notice of Borrowing must be received by Agent no later than 11:00 a.m. (i) on the Business Day of the requested funding date, in the case of Base Rate Loans, and (ii) at least three Business Days prior to the requested funding date, in the case of LIBOR Loans.  Notices received after 11:00 a.m. shall be deemed received on the next Business Day.  Each Notice of Borrowing shall be irrevocable and shall specify (A) the amount of the Borrowing, (B) the requested funding date (which must be a Business Day), (C) whether the Borrowing is to be made as Base Rate Loans or LIBOR Loans, and (D) in the case of LIBOR Loans, the duration of the applicable Interest Period (which shall be deemed to be 30 days if not specified).

(b)                                 Unless payment is otherwise timely made by Borrowers, the becoming due of any Obligations (whether principal, interest, fees or other charges, including Extraordinary Expenses, LC Obligations, Cash Collateral and Bank Product Debt) shall be deemed to be a request for Base Rate Revolver Loans on the due date, in the amount of such Obligations.  The proceeds of such Revolver Loans shall be disbursed as direct payment of the relevant Obligation.  In addition, Agent may, at its option, charge such Obligations against any operating, investment or other account of a Borrower maintained with Agent or any of its Affiliates.

(c)                                  If Borrowers establish a controlled disbursement account with Agent or any Affiliate of Agent, then the presentation for payment of any check or other item of payment drawn on such account at a time when there are insufficient funds to cover it shall be deemed to be a request for Base Rate Revolver Loans on the date of such presentation, in the amount of the check and items presented for payment.  The proceeds of such Revolver Loans may be disbursed directly to the controlled disbursement account or other appropriate account.

4.1.2.                                 Fundings by Lenders.  Each Lender shall timely honor its Revolver Commitment by funding its Pro Rata share of each Borrowing of Revolver Loans that is properly requested hereunder.  Except for Borrowings to be made as Swingline Loans, Agent shall endeavor to notify Lenders of each Notice of Borrowing (or deemed request for a Borrowing) by 12:00 noon on the proposed funding date for Base Rate Loans or by 3:00 p.m. at least two Business Days before any proposed funding of LIBOR Loans.  Each Lender shall fund to Agent such Lender’s Pro Rata share of the Borrowing to the account specified by Agent in immediately available funds not later than 2:00 p.m. on the requested funding date, unless Agent’s notice is received after the times provided above, in which event Lender shall fund its Pro Rata share by 11:00 a.m. on the next Business Day.  Subject to its receipt of such amounts from Lenders, Agent shall disburse the proceeds of the Revolver Loans as directed by Borrower Agent.  Unless Agent shall have received (in sufficient time to act) written notice from a Lender that it does not intend to fund its Pro Rata share of a Borrowing, Agent may assume that such Lender has deposited or promptly will deposit its share with Agent, and Agent may disburse a corresponding amount to Borrowers.  If a Lender’s share of any Borrowing or of any settlement pursuant to Section 4.1.3(b) is not received by Agent, then Borrowers agree to repay to Agent on demand the amount of such share, together with interest thereon from the date disbursed until repaid, at the rate applicable to the Borrowing.

4.1.3.                                 Swingline Loans; Settlement.

(a)                                 Agent may, but shall not be obligated to, advance Swingline Loans to Borrowers, up to an aggregate outstanding amount of 15% of the aggregate Revolver Commitments, unless the funding is specifically required to be made by all Lenders hereunder.  Each Swingline Loan shall constitute a Revolver Loan for all purposes, except that payments thereon shall be made to Agent for its own account.  The obligation of Borrowers to repay Swingline Loans shall be evidenced by the records of Agent and need not be evidenced by any promissory note.

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(b)                                 To facilitate administration of the Revolver Loans, Lenders and Agent agree (which agreement is solely among them, and not for the benefit of or enforceable by any Borrower) that settlement among them with respect to Swingline Loans and other Revolver Loans may take place on a date determined from time to time by Agent, which shall occur at least once each week.  On each settlement date, settlement shall be made with each Lender in accordance with the Settlement Report delivered by Agent to Lenders.  Between settlement dates, Agent may in its discretion apply payments on Revolver Loans to Swingline Loans, regardless of any designation by Borrower or any provision herein to the contrary.  Each Lender’s obligation to make settlements with Agent is absolute and unconditional, without offset, counterclaim or other defense, and whether or not the Commitments have terminated, an Overadvance exists or the conditions in Section 6 are satisfied.  If, due to an Insolvency Proceeding with respect to a Borrower or otherwise, any Swingline Loan may not be settled among Lenders hereunder, then each Lender shall be deemed to have purchased from Agent a Pro Rata participation in each unpaid Swingline Loan and shall transfer the amount of such participation to Agent, in immediately available funds, within one Business Day after Agent’s request therefor.

4.1.4.                                 Notices.  Each Borrower authorizes Agent and Lenders to extend, convert or continue Loans, effect selections of interest rates, and transfer funds to or on behalf of Borrowers based on Borrower Agent’s irrevocable notice to the Agent, which may be given by (A) telephone, or (B) a Notice of Borrowing; provided that any telephone notice must be confirmed promptly by delivery to Agent of a Notice of Borrowing or Notice of Conversion/Continuation, if applicable, but if it differs in any material respect from the action taken by Agent or Lenders, the records of Agent and Lenders shall govern.  Neither Agent nor any Lender shall have any liability for any loss suffered by a Borrower as a result of Agent or any Lender acting upon its understanding of telephonic or e-mailed instructions from a person believed in good faith by Agent or any Lender to be a person authorized to give such instructions on a Borrower’s behalf.

4.2.                            Defaulting Lender.  Agent may (but shall not be required to), in its discretion, retain any payments or other funds received by Agent that are to be provided to a Defaulting Lender hereunder, and may apply such funds to such Lender’s defaulted obligations or readvance the funds to Borrowers in accordance with this Agreement.  The failure of any Lender to fund a Loan, to make any payment in respect of LC Obligations or to otherwise perform its obligations hereunder shall not relieve any other Lender of its obligations, and no Lender shall be responsible for default by another Lender.  Lenders and Agent agree (which agreement is solely among them, and not for the benefit of or enforceable by any Borrower) that, solely for purposes of determining a Defaulting Lender’s right to vote on matters relating to the Loan Documents (including the granting of any consents or waivers) and to share in payments, fees and Collateral proceeds thereunder, a Defaulting Lender shall not be deemed to be a “Lender” until all its defaulted obligations have been cured.  Notwithstanding anything contained herein to the contrary, Borrowers reserve all of their rights and remedies against each Defaulting Lender to recover for any damages caused to Borrowers by such Defaulting Lender on account of such Default Lender’s failure to make any payment or provide funds to Agent or any Borrower as required hereunder.

4.3.                            Number and Amount of LIBOR Loans; Determination of Rate.  Each Borrowing of LIBOR Loans when made shall be in a minimum amount of $1,000,000, plus any increment of $1,000,000 in excess thereof.  No more than 5 Borrowings of LIBOR Loans may be outstanding at any time, and all LIBOR Loans having the same length and beginning date of their Interest Periods shall be aggregated together and considered one Borrowing for this purpose.  Upon determining LIBOR for any Interest Period requested by Borrowers, Agent shall promptly notify Borrowers thereof by telephone or electronically and, if requested by Borrowers, shall confirm any telephonic notice in writing.

4.4.                            Borrower Agent.  Each Borrower hereby designates Headwaters Resources, Inc., a Utah corporation (“Borrower Agent”) as its representative and agent for all purposes under the Loan

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Documents, including requests for Loans and Letters of Credit, designation of interest rates, delivery or receipt of communications, preparation and delivery of Borrowing Base and financial reports, receipt and payment of Obligations, requests for waivers, amendments or other accommodations, actions under the Loan Documents (including in respect of compliance with covenants), and all other dealings with Agent, Issuing Bank or any Lender.  Borrower Agent hereby accepts such appointment.  Agent and Lenders shall be entitled to rely upon, and shall be fully protected in relying upon, any notice or communication (including any notice of borrowing) delivered by Borrower Agent on behalf of any Borrower.  Agent and Lenders may give any notice or communication with a Borrower hereunder to Borrower Agent on behalf of such Borrower.  Each of Agent, Issuing Bank and Lenders shall have the right, in its discretion, to deal exclusively with Borrower Agent for any or all purposes under the Loan Documents.  Each Borrower agrees that any notice, election, communication, representation, agreement or undertaking made on its behalf by Borrower Agent shall be binding upon and enforceable against it.

4.5.                            One Obligation.  The Loans, LC Obligations and other Obligations shall constitute one general obligation of Borrowers and (unless otherwise expressly provided in any Loan Document) shall be secured by Agent’s Lien upon all Collateral; provided, however, that Agent and each Lender shall be deemed to be a creditor of, and the holder of a separate claim against, each Borrower to the extent of any Obligations jointly or severally owed by such Borrower.

4.6.                            Effect of Termination.  On the effective date of any termination of the Commitments, all Obligations shall be immediately due and payable, and any Borrower or any Lender may terminate its and its Affiliates’ Bank Products (including, only with the consent of Agent, any Cash Management Services).  All undertakings of Borrowers contained in the Loan Documents shall survive any termination, and Agent shall retain its Liens in the Collateral and all of its rights and remedies under the Loan Documents until Full Payment of the Obligations.  Notwithstanding Full Payment of the Obligations, Agent shall not be required to terminate its Liens in any Collateral unless, with respect to any damages Agent may incur as a result of the dishonor or return of Payment Items applied to Obligations, Agent receives (a) a written agreement, executed by Borrowers and any Person whose advances are used in whole or in part to satisfy the Obligations, indemnifying Agent and Lenders from any such damages; or (b) such Cash Collateral as Agent, in its discretion, deems necessary to protect against any such damages.  Sections 2.3, 3.4, 3.6, 3.7, 3.9, 5.5, 5.9, 5.10, 12, 14.2 and this Section, and the obligation of each Obligor and Lender with respect to each indemnity given by it in any Loan Document, shall survive Full Payment of the Obligations and any release relating to this credit facility.

4.7.                            Assignment of Commitments Under Certain Circumstances.  In the event that any Lender is a Defaulting Lender, then with respect to each such Defaulting Lender (a “Terminated Lender”), Borrower Agent shall have the right, but not the obligation, at its own expense, upon notice to such Terminated Lender and Agent, to replace such Terminated Lender with an Eligible Assignee (in accordance with and subject to restrictions of Section 13.2.4), and such Terminated Lender hereby agrees to transfer and assign without recourse (in accordance with and subject to the restrictions in Section 13.2.4) all its interests, rights and obligations under the Loan Documents to such Eligible Assignee; provided, however, that no such Terminated Lender shall be obligated to make any such assignment unless (i) such assignment shall not conflict with any law, rule, regulation or order of any Governmental Authority and (ii) such Terminated Lender shall have been paid in immediately available funds on the date of such assignment the principal of and interest accrued to the date of payment on the Loans made by such Terminated Lender and all fees and other amounts accrued for such Terminated Lender’s account or owed to it hereunder.  Each Lender agrees that, if it becomes a Terminated Lender, it shall execute and deliver to Agent an assignment and acceptance agreement to evidence such sale and purchase and shall deliver to Agent any Notes subject to such assignment and acceptance; provided, however, that the failure of any Terminated Lender to execute an assignment and acceptance shall not render such sale and