exv4w7






Execution Copy




      




AMENDED AND RESTATED CREDIT AGREEMENT




among



NCI BUILDING SYSTEMS, INC.,

as Borrower,



THE SEVERAL LENDERS



FROM TIME TO TIME PARTIES HERETO,



and



Wachovia Bank, National Association,

as Administrative Agent and Collateral Agent



Dated as of October 20, 2009



Wells Fargo Securities, LLC,

as Lead Arranger and Bookrunner



      




 









 





Table of Contents




	 	 	 	 	 
	 	 	Page	 
	ARTICLE I
	 
	 	 	 	 
	DEFINITIONS
	 
	 	 	 	 
	Section 1.1 Defined Terms
	 	 	1	 
	Section 1.2 Other Definitional Provisions
	 	 	31	 
	 
	 	 	 	 
	ARTICLE II
	 
	 	 	 	 
	AMOUNT AND TERMS OF COMMITMENTS
	 
	 	 	 	 
	Section 2.1 Term Loans
	 	 	31	 
	Section 2.2 Term Loan Notes
	 	 	31	 
	Section 2.3 Repayment of Term Loans
	 	 	32	 
	Section 2.4 Record of Term Loans
	 	 	32	 
	Section 2.5 Additional Commitments
	 	 	33	 
	 
	 	 	 	 
	ARTICLE III
	 
	 	 	 	 
	GENERAL PROVISIONS APPLICABLE TO TERM LOANS
	 
	 	 	 	 
	Section 3.1 Interest Rates and Payment Dates
	 	 	34	 
	Section 3.2 Conversion and Continuation Options
	 	 	35	 
	Section 3.3 Minimum Amounts of Sets
	 	 	36	 
	Section 3.4 Optional and Mandatory Prepayments
	 	 	36	 
	Section 3.5 Computation of Interest and Fees
	 	 	40	 
	Section 3.6 Inability to Determine Interest Rate
	 	 	40	 
	Section 3.7 Pro Rata Treatment and Payments
	 	 	41	 
	Section 3.8 Illegality
	 	 	42	 
	Section 3.9 Requirements of Law
	 	 	42	 
	Section 3.10 Taxes
	 	 	44	 
	Section 3.11 Indemnity
	 	 	46	 
	Section 3.12 Certain Rules Relating to the Payment of Additional Amounts
	 	 	47	 
	Section 3.13 Further Actions On or Prior to Closing
	 	 	48	 
	 
	 	 	 	 
	ARTICLE IV
	 
	 	 	 	 
	REPRESENTATIONS AND WARRANTIES
	 
	 	 	 	 
	Section 4.1 Financial Condition
	 	 	49	 
	Section 4.2 Existence; Compliance with Law
	 	 	50	 
	Section 4.3 Power; Authorization; Enforceable Obligations
	 	 	51	 
	Section 4.4 No Legal Bar
	 	 	51	 
	Section 4.5 No Material Litigation
	 	 	51	 






 









 





Table of Contents

(continued)




	 	 	 	 	 
	 	 	Page	 
	Section 4.6 Ownership of Property; Liens
	 	 	52	 
	Section 4.7 Intellectual Property
	 	 	52	 
	Section 4.8 No Burdensome Restrictions
	 	 	52	 
	Section 4.9 Taxes
	 	 	52	 
	Section 4.10 Federal Regulations
	 	 	52	 
	Section 4.11 ERISA
	 	 	53	 
	Section 4.12 Collateral
	 	 	53	 
	Section 4.13 Investment Company Act; Other Regulations
	 	 	54	 
	Section 4.14 Subsidiaries
	 	 	54	 
	Section 4.15 Environmental Matters
	 	 	54	 
	Section 4.16 No Material Misstatements
	 	 	55	 
	Section 4.17 Labor Matters
	 	 	55	 
	Section 4.18 Insurance
	 	 	56	 
	Section 4.19 Anti-Terrorism
	 	 	56	 
	 
	 	 	 	 
	ARTICLE V
	 
	 	 	 	 
	CONDITIONS PRECEDENT
	 
	 	 	 	 
	Section 5.1 Conditions to Effectiveness of this Agreement
	 	 	56	 
	Section 5.2 Conditions to Each Future Extension of Credit
	 	 	61	 
	 
	 	 	 	 
	ARTICLE VI
	 
	 	 	 	 
	AFFIRMATIVE COVENANTS
	 
	 	 	 	 
	Section 6.1 Financial Statements
	 	 	62	 
	Section 6.2 Certificates; Other Information
	 	 	63	 
	Section 6.3 Payment of Obligations
	 	 	64	 
	Section 6.4 Conduct of Business and Maintenance of Existence
	 	 	64	 
	Section 6.5 Maintenance of Property; Insurance
	 	 	64	 
	Section 6.6 Inspection of Property; Books and Records; Discussions
	 	 	65	 
	Section 6.7 Notices
	 	 	66	 
	Section 6.8 Environmental Laws
	 	 	67	 
	Section 6.9 After-Acquired Real Property and Fixtures
	 	 	68	 
	Section 6.10 Post-Closing Security Perfection
	 	 	70	 
	Section 6.11 2009 Tax Refund
	 	 	70	 
	Section 6.12 Notice of Any ABL Refinancing
	 	 	70	 
	ARTICLE VII
	 
	 	 	 	 
	NEGATIVE COVENANTS
	 
	 	 	 	 
	Section 7.1 Consolidated Leverage Ratio
	 	 	71	 
	Section 7.2 Limitation on Indebtedness
	 	 	71	 






 









 





Table of Contents

(continued)




	 	 	 	 	 
	 	 	Page	 
	Section 7.3 Limitation on Liens
	 	 	75	 
	Section 7.4 Limitation on Guarantee Obligations
	 	 	78	 
	Section 7.5 Limitation on Fundamental Changes
	 	 	80	 
	Section 7.6 Limitation on Sale of Assets
	 	 	81	 
	Section 7.7 Limitation on Dividends and Share Repurchases
	 	 	82	 
	Section 7.8 Limitation on Investments, Loans and Advances
	 	 	84	 
	Section 7.9 Limitations on Certain Acquisitions
	 	 	87	 
	Section 7.10 Limitation on Transactions with Affiliates
	 	 	88	 
	Section 7.11 Limitation on Optional Payments and Modifications of
Debt Instruments and Other Documents
	 	 	89	 
	Section 7.12 Limitation on Lines of Business
	 	 	90	 
	 
	 	 	 	 
	ARTICLE VIII
	 
	 	 	 	 
	EVENTS OF DEFAULT
	 
	 	 	 	 
	Section 8.1 Defaults
	 	 	90	 
	Section 8.2 Waiver of Prior Defaults
	 	 	93	 
	Section 8.3 Waiver of Notices
	 	 	93	 
	 
	 	 	 	 
	ARTICLE IX
	 
	 	 	 	 
	THE AGENTS AND THE OTHER REPRESENTATIVES
	 
	 	 	 	 
	Section 9.1 Appointment
	 	 	93	 
	Section 9.2 Delegation of Duties
	 	 	94	 
	Section 9.3 Exculpatory Provisions
	 	 	94	 
	Section 9.4 Reliance by the Administrative Agent
	 	 	95	 
	Section 9.5 Notice of Default
	 	 	95	 
	Section 9.6 Acknowledgements and Representations by Lenders
	 	 	96	 
	Section 9.7 Indemnification
	 	 	96	 
	Section 9.8 The Administrative Agent and Other Representatives in
Their Individual Capacity
	 	 	97	 
	Section 9.9 Collateral Matters
	 	 	97	 
	Section 9.10 Successor Agent
	 	 	99	 
	Section 9.11 Other Representatives
	 	 	100	 
	Section 9.12 Withholding Tax
	 	 	100	 
	 
	 	 	 	 
	ARTICLE X
	 
	 	 	 	 
	MISCELLANEOUS
	 
	 	 	 	 
	Section 10.1 Amendments and Waivers
	 	 	100	 
	Section 10.2 Notices
	 	 	102	 
	Section 10.3 No Waiver; Cumulative Remedies
	 	 	104	 






 









 





Table of Contents

(continued)




	 	 	 	 	 
	 	 	Page	 
	Section 10.4 Survival of Representations and Warranties
	 	 	104	 
	Section 10.5 Payment of Expenses and Taxes
	 	 	104	 
	Section 10.6 Successors and Assigns; Participations and Assignments
	 	 	105	 
	Section 10.7 Adjustments; Set-off; Calculations; Computations
	 	 	110	 
	Section 10.8 Judgment
	 	 	111	 
	Section 10.9 Counterparts
	 	 	111	 
	Section 10.10 Severability
	 	 	111	 
	Section 10.11 Amendment
	 	 	112	 
	Section 10.12 Integration
	 	 	112	 
	Section 10.13 GOVERNING LAW
	 	 	112	 
	Section 10.14 Submission to Jurisdiction; Waivers
	 	 	112	 
	Section 10.15 Acknowledgements
	 	 	113	 
	Section 10.16 WAIVER OF JURY TRIAL
	 	 	113	 
	Section 10.17 Confidentiality
	 	 	113	 
	Section 10.18 Additional Indebtedness
	 	 	114	 
	Section 10.19 USA Patriot Act Notice
	 	 	114	 











 









 







SCHEDULES




	 	 	 	 	 
	Schedule A

	 	—
	 	Lenders
	Schedule B

	 	—
	 	Rollover Indebtedness
	Schedule C

	 	—
	 	Unscheduled Assumed Indebtedness
	Schedule D

	 	—
	 	Existing Mortgages
	Schedule 3.13(b)

	 	—
	 	Amended and Restated Mortgages
	Schedule 4.5

	 	—
	 	Litigation
	Schedule 4.6

	 	—
	 	Mortgaged Properties
	Schedule 4.7

	 	—
	 	Intellectual Property Claims
	Schedule 4.14

	 	—
	 	Subsidiaries
	Schedule 4.15

	 	—
	 	Environmental Matters
	Schedule 4.18

	 	—
	 	Insurance
	Schedule 5.1(i)

	 	—
	 	Title Policies
	Schedule 7.2(i)

	 	—
	 	Existing Indebtedness
	Schedule 7.6(j)

	 	—
	 	Dispositions






 









 





EXHIBITS




	 	 	 	 	 
	Exhibit A

	 	—
	 	Form of Term Loan Note
	Exhibit B

	 	—
	 	Form of Guarantee and Collateral Agreement
	Exhibit C

	 	—
	 	Form of Mortgages
	Exhibit D

	 	—
	 	Form of Intercreditor Agreement
	Exhibit E

	 	—
	 	Form of U.S. Tax Compliance Certificate
	Exhibit F

	 	—
	 	Form of Assignment and Acceptance
	Exhibit G

	 	—
	 	Form of Tax Sharing Agreement






 









 





     AMENDED AND RESTATED CREDIT AGREEMENT, dated as of October 20, 2009, among NCI BUILDING
SYSTEMS, INC., a Delaware corporation (together with its successors and assigns, the
“Borrower”), the several banks and other financial institutions from time to time parties
to this Agreement (as further defined in Section 1.1, the “Lenders”) and Wachovia Bank,
National Association, as administrative agent and collateral agent for the Lenders hereunder (in
such capacities, respectively, the “Administrative Agent” and the “Collateral
Agent”).



     The parties hereto hereby agree as follows:



W I T N E S S E T H:




     WHEREAS, the Borrower is party to the Credit Agreement, dated as of June 18, 2004 (the
“2004 Credit Agreement”), among the Lenders, the Borrower, the subsidiary guarantors party
thereto, Wachovia Bank, N.A. as administrative agent, and Bank of America, N.A., as syndication
agent;



     WHEREAS, the 2004 Credit Agreement has been amended by the First Amendment to Credit Agreement
dated as of November 9, 2004, the Second Amendment to Credit Agreement, dated as of October 14,
2005, and the Third Amendment to Credit Agreement, dated as of April 7, 2006, by and among the
Borrower, the subsidiary guarantors party thereto and the Administrative Agent (the 2004 Credit
Agreement, as so amended, the “Original Credit Agreement”);



     WHEREAS, pursuant to the Investment Agreement, the CD&R Investors have agreed to make certain
equity investments in the Borrower (the “Equity Investment”) subject to, among other
things, the modification of certain terms in the Original Credit Agreement, including an extension
of the Tranche B Term Loan Maturity Date (as defined in the Original Credit Agreement) and the
partial prepayment of the Tranche B Term Loan (as defined in the Original Credit Agreement), and
the amendment and restatement of the Original Credit Agreement in the form hereof;



     WHEREAS, the Borrower has requested, and the Administrative Agent and the Lenders have agreed,
to hereby amend and restate the Original Credit Agreement to satisfy the terms of the Investment
Agreement;



     NOW, THEREFORE, in consideration of the premises and the mutual agreements contained herein,
the parties hereto agree as follows:



ARTICLE I




DEFINITIONS



     Section 1.1 Defined Terms.



     As used in this Agreement, the following terms shall have the following meanings:



     “2004 Credit Agreement”: as defined in the Recitals.



 









 





     “2009 Tax Refund”: any U.S. federal or state income tax refund received by the
Borrower or any Subsidiary thereof (including the amount of such refund that would have been
received by the Borrower or such Subsidiary but for being utilized to offset any tax liability
otherwise payable by the Borrower or such Subsidiary) to the extent attributable to (and that would
not have been so received but for) any carryback of net operating losses, capital losses, tax
credits or similar tax attributes, if any, of the Borrower and its Subsidiaries for the taxable
year ended on November 1, 2009 to any prior taxable year, provided that, for these
purposes, (i) the amount of any state income tax refund shall be net of U.S. federal income tax
cost thereof to the Borrower or any of its Subsidiaries, (ii) a 2009 Tax Refund shall not include
any refund of state income taxes as a result of an audit or examination of any tax return of the
Borrower or any Subsidiary thereof and (iii) a 2009 Tax Refund shall not include any refund of U.S.
federal income taxes as a result of an audit or examination of any tax return of the Borrower or
any Subsidiary thereof unless the amount of such refund exceeds $4,000,000.



     “ABL Availability”: at any time, the amount of undrawn availability under the ABL
Facility then in effect at such time.



     “ABL Default Event”: the occurrence and continuance of such occurrence of any Event
of Default (as defined in the ABL Facility Agreement) specified under Section 12.1(a) of the ABL
Facility Agreement with respect to which the administrative agent under the ABL Facility Agreement
shall have exercised any remedy provided for thereunder and shall not have rescinded such action.



     “ABL Facility”: the revolving credit facility to be extended pursuant to the ABL
Facility Agreement.



     “ABL Facility Agreement”: the Loan and Security Agreement, dated as of October 20,
2009, among NCI Group, Inc., Robertson-Ceco II Corporation, NCI Building Systems, Inc., the lenders
party thereto and Wells Fargo Foothill, LLC, as administrative agent and co-collateral agent and
Bank of America, N.A. and General Electric Capital Corporation, each as co-collateral agent, as the
same may be amended, supplemented, waived, otherwise modified, extended, renewed, refinanced or
replaced (whether such renewal, refinancing or replacement occurs concurrently with the termination
of the then-existing ABL Facility Documents and the repayment of obligations then due and owing
thereunder or after any lapse of time during which there may not exist any ABL Facility Documents
or any ABL Facility), in whole or in part, from time to time.



     “ABL Facility Documents”: the ABL Facility Agreement, the other Financing Agreements
(as defined therein) and any other agreements, instruments and other documents evidencing or
governing the ABL Facility or entered into at any time in connection therewith, as the same may be
amended, supplemented, waived, otherwise modified, extended, renewed, refinanced or replaced
(whether such renewal, refinancing or replacement occurs concurrently with the termination of the
then-existing ABL Facility Documents and the repayment of obligations then due and owing thereunder
or after any lapse of time during which there may not exist any ABL Facility Documents or any ABL
Facility), in whole or in part, from time to time.



     “ABL Facility Loans”: Indebtedness issued pursuant to the ABL Facility.



2









 





     “ABR”: for any day, a rate per annum (rounded upwards, if necessary, to the next 1/16
of 1%) equal to the greatest of (a) the Prime Rate in effect on such day, (b) the Federal Funds
Effective Rate in effect on such day plus 1/2 of 1% and (c) 3.00%. For purposes hereof: “Prime
Rate” shall mean the rate of interest per annum publicly announced from time to time by
Wachovia Bank, National Association (or another bank of recognized standing reasonably selected by
the Administrative Agent and reasonably satisfactory to the Borrower) as its prime rate in effect
at its principal office in New York City (the Prime Rate not being intended to be the lowest rate
of interest charged by Wachovia Bank, National Association in connection with extensions of credit
to debtors). “Federal Funds Effective Rate” shall mean, for any day, the weighted average
of the rates on overnight federal funds transactions with members of the Federal Reserve System
arranged by federal funds brokers, as published on the next succeeding Business Day by the Federal
Reserve of New York, or, if such rate is not so published for any day which is a Business Day, the
average of the quotations for the day of such transactions received by the Administrative Agent
from three federal funds brokers of recognized standing selected by it. Any change in the ABR due
to a change in the Prime Rate or the Federal Funds Effective Rate shall be effective as of the
opening of business on the effective day of such change in the Prime Rate or the Federal Funds
Effective Rate, respectively.



     “ABR Loans”: Loans the rate of interest applicable to which is based upon the ABR.



     “Acceleration”: as defined in Section 8.1(e).



     “Additional Commitments”: as defined in Section 2.5(a).



     “Additional Committing Lender”: as defined in Section 2.5(c).



     “Additional Indebtedness”: any Indebtedness that (x) is to be secured by a Lien on
any Collateral permitted by Section 7.3 of this Agreement and (y) is designated as “Additional
Indebtedness” by the Borrower by notice in writing to the Administrative Agent.



     “Additional Lender”: as defined in Section 2.5(c).



     “Additional Term Loan Amendment”: as defined in Section 2.5(c).



     “Additional Term Loan Closing Date”: as defined in Section 2.5(d).



     “Additional Term Loans”: as defined in Section 2.5(b).



     “Administrative Agent”: as defined in the Preamble hereto and shall include any
successor to the Administrative Agent appointed pursuant to Section 9.10.



     “Affected Loans”: as defined in Section 3.8.



     “Affected Rate”: as defined in Section 3.6.



     “Affiliate”: as to any Person, any other Person (other than a Subsidiary) which,
directly or indirectly, is in control of, is controlled by, or is under common control with, such
Person. For purposes of this definition, “control” of a Person means the power, directly or
indirectly,



3









 




either to (a) vote 20% or more of the securities having ordinary voting power for the election
of directors of such Person or (b) direct or cause the direction of the management and policies of
such Person, whether by contract or otherwise.




     “Agents”: the collective reference to the Administrative Agent and the Collateral
Agent.



     “Agreement”: this Amended and Restated Credit Agreement, as amended, supplemented,
waived or otherwise modified, from time to time.



     “Applicable Margin”: (i) 5.00% per annum with respect to ABR Loans and 6.00% per
annum with respect to Eurocurrency Loans or (ii) if the Consolidated Leverage Ratio on the last day
of the most recently completed fiscal quarter of the Borrower ending on or after October 30, 2011
is less than 3.50 to 1.00, then 3.50% per annum with respect to ABR Loans and 4.50% per annum with
respect to Eurocurrency Loans, effective on the first day of the immediately subsequent fiscal
quarter, provided that (x) until the end of the first two fiscal quarter period that begins
after the Closing Date, the Applicable Margin shall be as set forth in clause (i) above and (y)
commencing with the fiscal quarter of the Borrower beginning January 30, 2012, the Applicable
Margin in the case of clauses (i) and (ii) above shall increase by 0.25% per annum on the first day
of each fiscal quarter of the Borrower unless (1) the aggregate principal amount of Term Loans
outstanding at the beginning of the immediately preceding fiscal quarter of the Borrower shall have
been reduced by an amount (the “Target Amortization Amount”) equal to $3,750,000 minus (at
the Borrower’s option) any or all of the aggregate principal amount of Term Loans (up to an amount
not to exceed $3,750,000) repaid, prepaid, repurchased or otherwise acquired or retired, including
pursuant to Section 3.4 but excluding scheduled installment payments pursuant to Section 2.3, from
the Closing Date to the last day of such immediately preceding fiscal quarter (excluding any amount
thereof previously applied by the Borrower to the Target Amortization Amount for any previous
fiscal quarter of the Borrower), and thereby to cause the Applicable Margin not to increase on the
first day of the immediately succeeding fiscal quarter of the Borrower or (2) the Target
Amortization Amount as so calculated is zero.



     “Approved Fund”: as defined in Section 10.6(b).



     “Asset Sale”: any sale, issuance, conveyance, transfer, lease or other disposition
(including through a Sale and Leaseback Transaction) by the Borrower or any other Loan Party, in
one or a series of related transactions, of any real or personal, tangible or intangible, property
or assets of the Borrower or such Subsidiary (including Capital Stock of any Subsidiary held by any
Loan Party) to any Person.



     “Assignee”: as defined in Section 10.6(b).



     “Assignment and Acceptance”: an Assignment and Acceptance, substantially in the form
of Exhibit F.



     “Assumed Indebtedness”: the collective reference to all Rollover Indebtedness and
Unscheduled Assumed Indebtedness.



     “Available Amount”: the sum, without duplication, of



4









 





     (a) 50% of the Available CNI Amount accrued during the period (treated as one accounting
period) beginning on August 2, 2009 to the end of the most recent fiscal quarter for which
consolidated financial statements of the Borrower are available (or, in case such Available CNI
Amount shall be a negative number, 100% of such negative number); plus



     (b) the aggregate Net Proceeds and the Fair Market Value of property or assets received (x) by
the Borrower as capital contributions to the Borrower after the Closing Date or from the issuance
or sale of its Capital Stock (other than Disqualified Capital Stock) after the Closing Date (other
than Excluded Contributions) or (y) by the Borrower or any Subsidiary from the issuance and sale by
the Borrower or any Subsidiary after the Closing Date of Indebtedness that shall have been
converted into or exchanged for Capital Stock (other than Disqualified Capital Stock) of the
Borrower or any Parent Entity, plus the amount of any cash and the Fair Market Value of any
property or assets, received by the Borrower or any Subsidiary upon such conversion or exchange;
minus



     (c) the sum of the aggregate amount of dividends, payments and distributions made after the
Closing Date pursuant to Section 7.7(b), Investments made after the Closing Date and then
outstanding pursuant to Section 7.8(q), acquisitions made after the Closing Date pursuant to
Section 7.9(b)(ii)(y) and payments, prepayments, repurchases or redemptions made after the Closing
Date pursuant to Section 7.11(a)(y)(1).



     For purposes of the foregoing and Sections 7.8(e), 7.8(f), 7.8(l), 7.8(p), 7.8(q) and 7.8(r)
the amount of any Investment outstanding at any time shall be the original cost of such Investment,
reduced (at the Borrower’s option) by any dividend, distribution, interest payment, return of
capital, repayment or other amount or value received in respect of such Investment;
provided, that to the extent that the amount of Investments outstanding at any time
pursuant to Section 7.8(q) is so reduced by any portion of any such amount or value that would
otherwise be included in the calculation of Available Amount pursuant to paragraph (a) above, such
portion of such amount or value shall not be so included.



     “Available CNI Amount”: for any period, the net income (loss) of the Borrower and its
Subsidiaries, determined on a consolidated basis in accordance with GAAP and before any reduction
in respect of preferred stock dividends; provided, that there shall not be included in such
Available CNI Amount:



     (a) solely for purposes of determining the amount available under clause (a) of the definition
of “Available Amount” to pay or make dividends, payments and distributions pursuant to Section
7.7(b), any net income (loss) of any Subsidiary that is not a Guarantor if such Subsidiary is
subject to restrictions, directly or indirectly, on the payment of dividends or the making of
similar distributions by such Subsidiary, directly or indirectly, to the Borrower by operation of
the terms of such Subsidiary’s charter or any agreement, instrument, judgment, decree, order,
statute or governmental rule or regulation applicable to such Subsidiary or its stockholders (other
than (i) restrictions that have been waived or otherwise released and (ii) restrictions in effect
on the Closing Date with respect to a Subsidiary and other restrictions with respect to such
Subsidiary that taken as a whole are not materially less favorable to the Lenders than such
restrictions in effect on the Closing Date), except that (A) the Borrower’s equity in the net
income of any such Subsidiary for such period shall be included in such Available CNI



5









 




Amount up to the aggregate amount of any dividend or distribution that was or that could have
been made by such Subsidiary during such period to the Borrower or another Subsidiary (subject, in
the case of a dividend that could have been made to another Subsidiary, to the limitation contained
in this clause) and (B) the net loss of such Subsidiary shall be included to the extent of the
aggregate Investment of the Borrower or any of its other Subsidiaries in such Subsidiary;




     (b) any gain or loss realized upon the sale or other disposition of any asset of the Borrower
or any Subsidiary (including pursuant to any Sale and Leaseback Transaction) that is not sold or
otherwise disposed of in the ordinary course of business (as determined in good faith by the board
of directors of the Borrower);



     (c) any item classified as an extraordinary, unusual or nonrecurring gain, loss or charge
(including fees, expenses and charges associated with the Transactions and any related
transactions, and any acquisition, merger or consolidation after the Closing Date);



     (d) the cumulative effect of a change in accounting principles;



     (e) all deferred financing costs written off and premiums paid in connection with any early
extinguishment of Indebtedness;



     (f) any unrealized gains or losses in respect of any foreign exchange contract, currency swap
agreement or other similar agreement or arrangements (including derivative agreements or
arrangements);



     (g) any unrealized foreign currency transaction gains or losses in respect of Indebtedness of
any Person denominated in a currency other than the functional currency of such Person;



     (h) any non-cash compensation charge arising from any grant of stock, stock options or other
equity based awards;



     (i) to the extent otherwise included in such Available CNI Amount, any unrealized foreign
currency translation or transaction gains or losses in respect of Indebtedness or other obligations
of the Borrower or any Subsidiary owing to the Borrower or any Subsidiary; and



     (j) any non-cash charge, expense or other impact attributable to application of the purchase
method of accounting (including the total amount of depreciation and amortization, cost of sales or
other non-cash expense resulting from the write-up of assets to the extent resulting from such
purchase accounting adjustments).



     In the case of any unusual or nonrecurring gain, loss or charge not included in such Available
CNI Amount pursuant to clause (c) above in any determination thereof, the Borrower will deliver an
officer’s certificate to the Administrative Agent promptly after the date on which such Available
CNI Amount is so determined, setting forth the nature and amount of such unusual or nonrecurring
gain, loss or charge.



6









 





     “Available Excluded Contribution Amount”: the aggregate amount of Excluded
Contributions, minus the sum of (i) the aggregate amount of dividends, payments and distributions
made after the Closing Date pursuant to Section 7.7(a), (ii) the aggregate amount of Investments
made after the Closing Date and then outstanding pursuant to Section 7.8(r), (iii) the aggregate
amount of consideration paid for acquisitions made after the Closing Date pursuant to Section
7.9(b)(iii) and (iv) the aggregate amount of payments, prepayments, repurchases or redemptions made
pursuant to Section 7.11(a)(y)(2).



     “benefited Lender”: as defined in Section 10.7(a).



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



     “Borrower”: as defined in the Preamble hereto.



     “Borrowing”: the borrowing of one Type of Term Loan of a single Tranche by the
Borrowers from all the Lenders having Commitments of the respective Tranche on a given date or
resulting from a conversion or conversions on such date, having in the case of Eurocurrency Loans
the same Interest Period.



     “Borrowing Date”: as defined in Section 5.2(c).



     “Business Day”: a day other than a Saturday, Sunday or other day on which commercial
banks in New York, New York, Houston, Texas or Atlanta, Georgia are authorized or required by law
to remain closed; provided that, when used in connection with a Eurocurrency Loan, “Business Day”
shall also exclude any day on which banks are not open for dealings in dollar deposits in the
London interbank market.



     “Calculation Date”: as defined in Section 7.1(b).



     “Capital Expenditures”: with respect to any Person for any period, the aggregate of
all expenditures by such Person and its consolidated Subsidiaries during such period (exclusive of
expenditures made (i) for investments permitted by Section 7.8 and (ii) for acquisitions permitted
by Section 7.9) which, in accordance with GAAP, are or should be included in capital
expenditures.



     “Capital Stock”: any and all shares, interests, participations or other
equivalents (however designated) of capital stock of a corporation, any and all equivalent
ownership interests in a Person (other than a corporation) and any and all warrants or options to
purchase any of the foregoing.



     “Cash Collateral Agreement”: the Cash Collateral Agreement, dated as of May 21, 2009,
between the Borrower and Wachovia Bank, National Association, as the same may be amended, modified
and/or supplemented from time to time.



     “Cash Equivalents”: (a) securities issued or fully guaranteed or insured by the
United States government or any political subdivision, agency or instrumentality thereof, (b)
securities issued or fully guaranteed or insured by any state, commonwealth or territory of the
United States of America or any political subdivision, agency or instrumentality of any such state,



7









 




commonwealth or territory having, at the time of acquisition, an investment grade rating from
either Standard & Poor’s Ratings Group (a division of The McGraw Hill Companies Inc.) or any
successor rating agency (“S&P”) or Moody’s Investors Service, Inc. or any successor rating
agency (“Moody’s”) (or if at such time neither is issuing ratings, then a comparable rating
of such other nationally recognized rating agency as shall be approved by the Administrative Agent
in its reasonable judgment), (c) time deposits, certificates of deposit or bankers’ acceptances of
(i) any Lender or Affiliate thereof or (ii) any commercial bank having capital and surplus in
excess of $250,000,000 in the case of domestic banks and $100,000,000 (or the dollar equivalent
thereof) in the case of foreign banks, (d) commercial paper rated at least A-2 or the equivalent
thereof by S&P or at least P-2 or the equivalent thereof by Moody’s (or if at such time neither is
issuing ratings, then a comparable rating of such other nationally recognized rating agency as
shall be approved by the Administrative Agent in its reasonable judgment), (e) repurchase
obligations for underlying obligations of the types described in clauses (a), (b) and (d) above
entered into with any commercial bank meeting the qualifications specified in clause (c) above or
with securities dealers of recognized national standing, (f) investments in money market funds
complying with the risk limiting conditions of Rule 2a-7 or any successor rule of the Securities
and Exchange Commission under the Investment Company Act, and (g) investments similar to any of the
foregoing denominated in foreign currencies approved by the board of directors of the Borrower, in
each case provided in clauses (a), (b), (c), (d) and (e) above only, maturing within twelve months
after the date of acquisition.




     “CD&R”: Clayton, Dubilier & Rice, Inc. and any successor in interest thereto or
successor to CD&R’s investment management business.



     “CD&R Holders”: CD&R, the CD&R Investors and any of their respective Affiliates.



     “CD&R Investors”: Clayton, Dubilier & Rice Fund VIII, L.P., CD&R Friends & Family
Fund VIII, L.P. and their respective successors in interest thereto.



     “Change in Consolidated Working Capital”: for any period, a positive or negative
number equal to the amount of Consolidated Working Capital at the beginning of such period minus
the amount of Consolidated Working Capital at the end of such period, which number shall be
adjusted as follows: (x) if such number is a positive number, it shall be adjusted by subtracting
from such number the positive number, if any, equal to any net decrease in ABL Availability during
such period, and (y) if such number is a negative number, it shall be adjusted by adding to such
number the positive number, if any, equal to any net increase in ABL Availability during such
period.



     “Change in Tax Law”: with respect to any Agent, Lender or other Person, any change in
treaty, law or regulation in respect of Taxes, in each case, that occurred after such Agent, Lender
or Person, as the case may be, became a party to this Agreement (or, if such Agent, Lender or
Person is an intermediary or flow-through entity for U.S. federal income tax purposes, after the
relevant beneficiary or member of such Agent, Lender or Person, as the case may be, became such a
beneficiary or member, if later); provided, however, that Change in Tax Law shall not
include any change in any treaty, law or regulation to reflect, in whole or in part, any proposed
rule modification relating to the qualification as a qualified intermediary, payments to a
nonqualified intermediary or payments to foreign entities described in the General Explanations



8









 




of the Administration’s Fiscal Year 2010 Revenue Proposals of the Department of the Treasury,
May 2009.




     “Change of Control”: the occurrence of any of the following events: (i)(x) the
Permitted Holders shall in the aggregate be the “beneficial owner” (as defined in Rules 13d-3 and
13d-5 under the Exchange Act) of (A) if the Borrower is not a Subsidiary of any Parent Entity,
shares of Voting Stock having less than 35% of the total voting power of all outstanding shares of
the Borrower and (B) if the Borrower is a Subsidiary of any Parent Entity, shares of Voting Stock
having less than 35% of the total voting power of all outstanding shares of such Parent Entity
(other than a Parent Entity that is a Subsidiary of another Parent Entity) and (y) any “person” or
“group” (as such terms are used in Sections 13(d) and 14(d) of the Exchange Act), other than one or
more Permitted Holders, shall be the “beneficial owner” of (A) if the Borrower is not a Subsidiary
of any Parent Entity, shares of Voting Stock having more than 35% of the total voting power of all
outstanding shares of the Borrower and (B) if the Borrower is a Subsidiary of any Parent Entity,
shares of Voting Stock having more than 35% of the total voting power of all outstanding shares of
such Parent Entity (other than a Parent Entity that is a Subsidiary of another Parent Entity), and
(ii) the Continuing Directors shall cease to constitute a majority of the members of the board of
directors of the Borrower.



     “Closing Date”: as defined in Section 5.1.



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



     “Collateral”: all assets of the Loan Parties, now owned or hereafter acquired, upon
which a Lien is purported to be created by any Security Document.



     “Collateral Agent”: as defined in the Preamble hereto.



     “Commitment”: as to any Lender, the Tranche B Term Loan Commitments of such Lender.



     “Commonly Controlled Entity”: an entity, whether or not incorporated, which is under
common control with the Borrower within the meaning of Section 4001 of ERISA or is part of a group
which includes the Borrower and which is treated as a single employer under Section 414(b) or (c)
of the Code or, solely for purposes of Section 302 of ERISA and Section 412 of the Code, is treated
as a single employer under Sections 414(m) and (o) of the Code.



     “Conduit Lender”: any special purpose corporation organized and administered by any
Lender for the purpose of making Term Loans otherwise required to be made by such Lender and
designated by such Lender in a written instrument delivered to the Administrative Agent (a copy of
which shall be provided by the Administrative Agent to the Borrower on request); provided
that the designation by any Lender of a Conduit Lender shall not relieve the designating Lender of
any of its obligations under this Agreement, including its obligation to fund a Term Loan if, for
any reason, its Conduit Lender fails to fund any such Term Loan, and the designating Lender (and
not the Conduit Lender) shall have the sole right and responsibility to deliver all consents and
waivers required or requested under this Agreement with respect to its Conduit Lender, and
provided, further, that no Conduit Lender shall (a) be entitled to any payment
pursuant to any provision of this Agreement, including without limitation Sections 3.9, 3.10,



9









 




3.11 or 10.5, in an amount greater than the designating Lender would have been entitled to in
respect of the extensions of credit made by such Conduit Lender if such designating Lender had not
designated such Conduit Lender hereunder, (b) be deemed to have any Tranche B Term Loan Commitment
or (c) be designated if such designation would otherwise increase the costs of any Facility to the
Borrower.




     “Consolidated Current Portion of Long Term Debt”: at the date of determination
thereof, the current portion of Consolidated Long Term Debt that is included in Consolidated Short
Term Debt.



     “Consolidated Indebtedness”: at the date of determination thereof, an amount equal to
(a) all indebtedness for borrowed money of the Borrower and its Subsidiaries as determined on a
consolidated basis in accordance with GAAP and as disclosed on the Borrower’s consolidated balance
sheet minus (b) the lesser of (i) the aggregate amount of cash included in the cash accounts listed
on the consolidated balance sheet of the Borrower and its Subsidiaries as at such date to the
extent such cash is not classified as “restricted” for financial statement purposes and (ii)
$50,000,000.



     “Consolidated Interest Expense”: for any period, an amount equal to (a) interest
expense (accrued and paid or payable in cash for such period, and in any event excluding any
amortization or write off of financing costs) on Indebtedness of the Borrower and its Subsidiaries
for such period minus (b) interest income (accrued and received or receivable in cash for such
period) of the Borrower and its Subsidiaries for such period, in each case determined on a
consolidated basis in accordance with GAAP.



     “Consolidated Leverage Ratio”: as of the last day of any period, the ratio of (a)
Consolidated Indebtedness on such day to (b) EBITDA for such period.



     “Consolidated Long Term Debt”: at the date of determination thereof, all long term
debt of the Borrower and its Subsidiaries as determined on a consolidated basis in accordance with
GAAP and as disclosed on the Borrower’s consolidated balance sheet most recently delivered under
Section 6.1.



     “Consolidated Net Income”: for any period, net income of the Borrower and its
Subsidiaries for such period, determined on a consolidated basis in accordance with GAAP.



     “Consolidated Short Term Debt”: at the date of determination thereof, all short term
debt of the Borrower and its Subsidiaries as determined on a consolidated basis in accordance with
GAAP and as disclosed on the Borrower’s consolidated balance sheet most recently delivered under
Section 6.1.



     “Consolidated Tangible Assets”: as of any date of determination, the total assets
less the sum of the goodwill, net, and other intangible assets, net, in each case reflected on the
consolidated balance sheet of the Borrower and its Subsidiaries as at the end of the most recently
ended fiscal quarter of the Borrower for which such a balance sheet is available, determined on a
consolidated basis in accordance with GAAP; provided, that Consolidated Tangible Assets
shall not be less than $581,000,000.



10









 





     “Consolidated Working Capital”: at the date of determination thereof, the aggregate
amount of all current assets (excluding cash, Cash Equivalents, and deferred taxes and income taxes
receivable recorded as current assets) minus the aggregate amount of all current liabilities
(excluding indebtedness under the ABL Facility, the Consolidated Current Portion of Long Term Debt,
working capital indebtedness of Foreign Subsidiaries, and deferred taxes and accrued income taxes
payable recorded as current liabilities), in each case determined on a consolidated basis for the
Borrower and its Subsidiaries.



     “Continuing Directors”: the directors of the Borrower on the Closing Date, after
giving effect to the Transactions and the other transactions contemplated thereby, and each other
director if, in each case, such other director’s nomination for election to the board of directors
of the Borrower is recommended by at least a majority of the then Continuing Directors or the
election of such other director is approved by one or more Permitted Holders.



     “Contractual Obligation”: as to any Person, any provision of any material security
issued by such Person or of any material agreement, instrument or other undertaking to which such
Person is a party or by which it or any of its property is bound.



     “Convertible Notes”: 2.125% Convertible Senior Subordinated Notes Due 2024 of NCI
Building Systems, Inc., issued on November 16, 2004.



     “Convertible Notes Indenture”: the Indenture, dated as of November 16, 2004, between
the Borrower and The Bank of New York, as trustee.



     “Convertible Note Account”: has the meaning given in the Investment Agreement.



     “Cumulative Excess Cash Flow”: the sum of Excess Cash Flow (but not less than zero)
for the fiscal year ending on October 31, 2010 and Excess Cash Flow (but not less than zero in any
period) for each succeeding and completed fiscal year. For purposes of such calculation, Excess
Cash Flow shall be calculated without reduction for any amount applied as contemplated by clause
(b) of the definition of the term “Not Otherwise Applied.”



     “Cumulative Term Loan Amortization”: as of any date of determination, the aggregate
principal amount of Term Loans repaid, prepaid, repurchased or otherwise acquired or retired (other
than scheduled installment payments pursuant to Section 2.3) from the Closing Date to the date of
determination.



     “Cumulative Term Loan Amortization Not Otherwise Applied”: with reference to any
amount of Cumulative Term Loan Amortization, such amount thereof that was not previously applied by
the Borrower to the Required Amortization Amount and thereby to waive application of Section
7.1(a), as provided in Section 7.1(b).



     “Default”: any of the events specified in Section 8.1, whether or not any requirement
for the giving of notice (other than, in the case of Section 8.1(e), a Default Notice), the lapse
of time, or both, or any other condition specified in Section 8.1, has been satisfied.



     “Default Notice”: as defined in Section 8.1(e).



11









 





     “Defaulting Lender”: any Lender which fails to advance a loan required to be made by
it pursuant to the terms of a syndicated facility or has become insolvent.



     “Deposit Account”: any deposit account (as such term is defined in Article 9 of the
UCC).



     “Disinterested Director”: as defined in Section 7.10.



     “Disposition”: as defined in Section 7.6.



     “Disqualified Capital Stock”: any Capital Stock which, by its terms (or by the terms
of any security into which it is convertible or for which it is exchangeable), or upon the
happening of any event, (a) is mandatorily redeemable in whole or in part prior to the Termination
Date, pursuant to a sinking fund obligation or otherwise, or is redeemable at the option of the
holder thereof, in whole or in part, (b) is convertible into or exchangeable (unless at the sole
option of the issuer thereof) prior to the Termination Date for (i) Indebtedness or any Capital
Stock referred to in clause (a) above, or (c) contains any mandatory repurchase obligation which
comes into effect prior to the Termination Date, provided that any Capital Stock that would not
constitute Disqualified Capital Stock but for provisions thereof giving holders thereof (or the
holders of any security into or for which such Capital Stock is convertible, exchangeable or
exercisable) the right to require the issuer thereof to redeem such Capital Stock upon the
occurrence of a change in control or a sale or other Disposition of property or assets shall not
constitute Disqualified Capital Stock.



     “Dollars” and “$”: dollars in lawful currency of the United States of
America.



     “Domestic Subsidiary”: any Subsidiary of the Borrower which is not a Foreign
Subsidiary.



     “EBITDA”: for any period, Consolidated Net Income for such period adjusted (i) to
exclude the following items (without duplication) of income or expense to the extent that such
items are included in the calculation of Consolidated Net Income: (a) Consolidated Interest
Expense, (b) any non-cash expenses and charges, (c) the provision or benefit for income taxes, (d)
depreciation expense, (e) the expense associated with amortization of intangible and other assets
(including amortization or other expense recognition of any costs associated with asset write-ups
in accordance with FAS Nos. 141 and 142), (f) non-cash provisions for reserves for discontinued
operations, (g) any extraordinary, unusual or non-recurring gains or losses or charges or credits,
including but not limited to any expenses relating to the Transactions, (h) any gain or loss
associated with the sale or write-down of assets not in the ordinary course of business, (i) any
income or loss attributable to noncontrolling interests, and (j) any income or loss accounted for
by the equity method of accounting (except in the case of income to the extent of the amount of
cash dividends or cash distributions paid to the Borrower or any of its Subsidiaries by the entity
accounted for by the equity method of accounting). For the purposes of calculating EBITDA for any
period of four consecutive fiscal quarters (each, a “Reference Period”) pursuant to any
determination of the Consolidated Leverage Ratio, (i) if at any time during such Reference Period
(and after the Closing Date) the Borrower or any of its Subsidiaries shall have made any Material
Disposition, the EBITDA for such Reference Period



12









 




shall be reduced by an amount equal to the EBITDA (if positive) attributable to the property
that is the subject of such Material Disposition for such Reference Period or increased by an
amount equal to the EBITDA (if negative) attributable thereto for such Reference Period and (ii) if
during such Reference Period (and after the Closing Date) the Borrower or any of its Subsidiaries
shall have made a Material Acquisition, EBITDA for such Reference Period shall be calculated after
giving pro forma effect thereto in accordance with Regulation S-X as if such Material Acquisition
occurred on the first day of such Reference Period. As used in this definition, “Material
Acquisition” means any acquisition of property or series of related acquisitions of property
that (x) constitutes assets comprising all or substantially all of an operating unit of a business
or constitutes all or substantially all of the common stock of a Person and (y) involves the
payment of consideration by the Borrower or any of its Subsidiaries in excess of $5,000,000; and
“Material Disposition” means any disposition of property or series of related dispositions
of property that (x) constitutes assets comprising all or substantially all of an operating unit of
a business or constitutes all or substantially all of the common stock of a Person and (y) yields
gross proceeds to the Borrower or any of its Subsidiaries in excess of $5,000,000. Notwithstanding
anything to the contrary contained in this definition, solely for the purposes of the calculation
of the Consolidated Leverage Ratio, EBITDA of the Borrower and its consolidated Subsidiaries shall
be: (x) for the four fiscal quarter period ending last day of the first fiscal quarter commencing
after closing, four times EBITDA for the last fiscal quarter in such period, (y) for the four
fiscal quarter period ending last day of second quarter commencing after closing two times EBITDA
for the last two fiscal quarters in such period and (z) for the four fiscal quarter period ending
last day of third fiscal quarter commencing after closing 4/3 times EBITDA for the last three
fiscal quarters in such period.




     “ECF Payment Date”: as defined in Section 3.4(c)(ii).



     “ECF Percentage”: 50%, provided that with respect to any fiscal year, the ECF
Percentage shall be reduced to zero if the Consolidated Leverage Ratio as of the last day of such
fiscal year is less than 4.00 to 1.00.



     “Environmental Costs”: any and all costs or expenses (including attorney’s and
consultant’s fees, investigation and laboratory fees, response costs, court costs and litigation
expenses, fines, penalties, damages, settlement payments, judgments and awards), of whatever kind
or nature, known or unknown, contingent or otherwise, arising out of, or in any way relating to,
any actual or alleged violation of, noncompliance with or liability under any Environmental Laws.
Environmental Costs include any and all of the foregoing, without regard to whether they arise out
of or are related to any past, pending or threatened proceeding of any kind.



     “Environmental Laws”: any and all U.S. or foreign federal, state, provincial,
territorial, foreign, local or municipal laws, rules, orders, enforceable guidelines,
orders-in-council, regulations, statutes, ordinances, codes, decrees, and such requirements of any
Governmental Authority properly promulgated and having the force and effect of law or other
Requirements of Law (including common law) regulating, relating to or imposing liability or
standards of conduct concerning protection of human health (as it relates to exposure to Materials
of Environmental Concern) or the environment, as have been, or now or at any relevant time
hereafter are, in effect.



13









 





     “Environmental Permits”: any and all permits, licenses, registrations, notifications,
exemptions and any other authorization required under any Environmental Law.



     “Equity Investment”: as defined in the Preamble hereto.



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



     “Eurocurrency Base Rate”: with respect to each day during each Interest Period
pertaining to a Eurocurrency Loan, the rate per annum determined by the Administrative Agent to be
the arithmetic mean (rounded upwards, if necessary, to the nearest 1/100th of 1%) of the
offered rates for deposits in Dollars with a term comparable to such Interest Period that appears
on Reuters Screen LIBOR01 Page (or on any successor or substitute page of such service, or any
successor to or substitute for such service as determined by Agent) at approximately 11:00 A.M.,
London time, on the second full Business Day preceding the first day of such Interest Period;
provided, that the Eurocurrency Base Rate shall not be less than 2.00% per annum.



     “Eurocurrency Loans”: Term Loans the rate of interest applicable to which is based
upon the Eurocurrency Rate.



     “Eurocurrency Rate”: with respect to each day during each Interest Period pertaining
to a Eurocurrency Loan, a rate per annum determined for such day in accordance with the following
formula (rounded upward to the nearest 1/100th of 1%):


Eurocurrency Base Rate

1.00 - Eurocurrency Reserve Requirements




     “Eurocurrency Reserve Requirements”: for any day as applied to a Eurocurrency Loan,
the aggregate (without duplication) of the rates (expressed as a decimal fraction) of reserve
requirements in effect on such day (including basic, supplemental, marginal and emergency reserves
under any regulations of the Board or other Governmental Authority having jurisdiction with respect
thereto) dealing with reserve requirements prescribed for eurocurrency funding (currently referred
to as “Eurocurrency Liabilities” in Regulation D of the Board) maintained by a member bank of the
Federal Reserve System.



     “Event of Default”: any of the events specified in Section 8.1, provided that
any requirement for the giving of notice, the lapse of time, or both, or any other condition, has
been satisfied.



     “Excess Cash Flow”: for any period, EBITDA minus, without duplication, (a) any
Capital Expenditures made in cash during such period, minus (b) any principal payments, purchases
or other retirements (other than principal payments during such period pursuant to Section 3.4(c)
unless and to the extent that the event giving rise to such mandatory prepayment causes an increase
in EBITDA) of the Term Loans made during such period), minus (c) any principal payments, purchases
or other retirements resulting in a permanent reduction of any other Indebtedness (other than the
Convertible Notes) of the Borrower or any of its Subsidiaries made during such period, minus (d)
Consolidated Interest Expense for such period, minus (e) any



14









 




taxes paid or payable in cash or by way of offsetting against refunds due to the Borrower or
any of its Subsidiaries for or in such period, minus (f) the Net Cash Proceeds from any Asset Sale
to the extent that such Net Cash Proceeds (i) (without duplication of clause (a) or (g) of this
definition) consist of any Reinvested Amount or are otherwise applied in accordance with Section
3.4(c) and (ii) are included in the calculation of EBITDA, minus (g) (without duplication of clause
(a) of this definition) any Investment or acquisition made in accordance with Sections 7.8(e),
7.8(h), 7.8(l) or 7.8(p) (without giving effect to the proviso thereto), 7.8(q) or 7.9, minus (h)
(without duplication of clause (b) or (c) of this definition) the proceeds of any Sale and
Leaseback Transactions entered into by the Borrower or any of its Subsidiaries during such period
in the ordinary course of its business to the extent included in EBITDA, minus (i) to the extent
not otherwise subtracted from EBITDA in this definition of “Excess Cash Flow”, any cash dividends
made during such period by the Borrower, so long as such dividends are expressly permitted by
Section 7.7, minus (j) to the extent not otherwise reflected in a reduction of EBITDA, the amount
of any cash contributions required by law to be made by the Borrower or any of its Subsidiaries to
any Plan, minus (k) to the extent included in calculating EBITDA, any cash expenses relating to the
Transactions, minus (l) any earnings of a Foreign Subsidiary included in EBITDA for such period
(except to the extent such earnings are used for any purposes described in clauses (a) through (k)
above) to the extent such Foreign Subsidiary is subject to legal, contractual or other
restrictions, directly or indirectly, on paying dividends or making distributions, directly or
indirectly, to the Borrower or any other Subsidiary thereof, including but not limited to pursuant
to the terms of any Indebtedness of such Foreign Subsidiary, minus (m) to the extent included in
calculating EBITDA for such period, any 2009 Tax Refund or any portion thereof, plus (n) the Change
in Consolidated Working Capital for such period.




     “Exchange Act”: the Securities Exchange Act of 1934, as amended from time to time.



     “Excluded Contribution”: Net Proceeds, or the Fair Market Value of property or
assets, received by the Borrower as capital contributions to the Borrower after the Closing Date or
from the issuance or sale (other than to a Subsidiary) of Capital Stock (other than Disqualified
Capital Stock of the Borrower), in each case to the extent designated as an Excluded Contribution
by the Borrower and not previously included in the calculation of Available Amount for purposes of
determining whether a dividend, payment or distribution may be made pursuant to Section 7.7(b), an
Investment may be made pursuant to Section 7.8(q), an acquisition may be made pursuant to Section
7.9(b)(ii)(y) or an optional payment may be made pursuant to Section 7.11(a)(y)(1).



     “Excluded Taxes”: with respect to any Agent, Lender or other Person, any (a) Taxes
measured by or imposed upon the net income of such Agent, Lender or Person, (b) franchise Taxes,
branch Taxes, Taxes on doing business or Taxes measured by or imposed upon the overall capital or
net worth of such Agent, Lender or Person and (c) Taxes imposed by reason of any activity or other
connection of such Agent, Lender or Person in the jurisdiction imposing such Tax, excluding any
activity or connection arising solely from such Agent, Lender or Person having executed, delivered
or performed its obligations under, or received payment under or enforced, this Agreement or the
Notes.



15









 





     “Exempt Sale and Leaseback Transaction”: any Sale and Leaseback Transaction (a) in
which the sale or transfer of property occurs within 90 days of the acquisition of such property by
the Borrower or any of its Subsidiaries or (b) that involves property with a book value of
$5,000,000 or less, and is not part of a series of related Sale and Leaseback Transactions
involving property with an aggregate value in excess of such amount and entered into with a single
Person or group of Persons.



     “Existing Mortgages”: the mortgages, deeds of trust and deeds to secure debt set
forth in Schedule D.



     “Existing Term Loans”: as defined in Section 2.5(b).



     “Extension of Credit”: as to any Lender, the making of a Term Loan by such Lender.



     “Facility”: the Tranche B Term Loan Commitments and the Term Loans made thereunder.



     “Factoring Transaction”: any transaction or series of transactions entered into by
the Borrower or any Subsidiary pursuant to which the Borrower or such Subsidiary sells, conveys or
otherwise transfers accounts receivable of the Borrower or such Subsidiary to a non-related third
party factor.



     “Fair Market Value”: with respect to any asset or property, the fair market value of
such asset or property as determined in good faith by the board of directors of the Borrower, whose
determination will be conclusive.



     “Federal Funds Effective Rate”: as defined in the definition of the term “ABR” in
this Section 1.1.



     “Financing Lease”: any lease by such Person of property, real or personal, for which
the obligations of the lessee are required in accordance with GAAP to be capitalized on the balance
sheet of such lessee; provided, that, if at any time an operating lease of such lessee is required
to be recharacterized as a Financing Lease after the date hereof as a result of a change in GAAP,
then for purposes hereof such lease shall not be deemed a Financing Lease. The stated maturity of
any Indebtedness under a Financing Lease shall be the scheduled date under the terms thereof of the
last payment of rent or any other amount due under such Financing Lease.



     “FIRREA”: the Financial Institutions Reform, Recovery and Enforcement Act of 1989, as
amended from time to time.



     “Fiscal Period End Date”: as defined in Section 7.1(b).



     “fiscal year”: any period of twelve consecutive months ending on the Sunday closest
to October 31 of any calendar year.



     “Foreign Pension Plan”: a registered pension plan which is subject to applicable
pension legislation other than ERISA or the Code, which a Subsidiary sponsors or maintains, or to
which it makes or is obligated to make contributions.



16









 





     “Foreign Plan”: each Foreign Pension Plan, deferred compensation or other retirement
or superannuation plan, fund, program, agreement, commitment or arrangement whether oral or
written, funded or unfunded, sponsored, established, maintained or contributed to, or required to
be contributed to, or with respect to which any liability is borne, outside the United States of
America, by the Borrower or any of its Subsidiaries, other than any such plan, fund, program,
agreement or arrangement sponsored by a Governmental Authority.



     “Foreign Subsidiary”: (i) any Subsidiary of the Borrower that is not organized under
the laws of the United States of America or any state thereof or the District of Columbia and any
Subsidiary of such Foreign Subsidiary and (ii) any Foreign Subsidiary Holdco.



     “Foreign Subsidiary Holdco”: any Subsidiary of the Borrower that has no material
assets other than securities or Indebtedness of one or more Foreign Subsidiaries (or Subsidiaries
thereof), intellectual property relating to such Foreign Subsidiaries (or Subsidiaries thereof) and
other assets relating to an ownership interest in any such securities, Indebtedness, intellectual
property or Subsidiaries.



     “GAAP”: with respect to the covenant contained in Section 7.1 and all defined terms
relating thereto, and the defined terms “Available CNI Amount” and “Consolidated Tangible Assets,”
generally accepted accounting principles in the United States of America in effect on the Closing
Date, and, for all other purposes under this Agreement, generally accepted accounting principles in
the United States of America in effect from time to time.



     “Governmental Authority”: any nation or government, any state or other political
subdivision thereof and any entity exercising executive, legislative, judicial, regulatory or
administrative functions of or pertaining to government.



     “Guarantee and Collateral Agreement”: the Guarantee and Collateral Agreement
delivered to the Collateral Agent as of the date hereof, substantially in the form of Exhibit B, as
the same may be amended, supplemented, waived or otherwise modified from time to time.



     “Guarantee Obligation”: as to any Person (the “guaranteeing person”), any
obligation of (a) the guaranteeing person or (b) another Person (including any bank under any
letter of credit) to induce the creation of which the guaranteeing person has issued a
reimbursement, counterindemnity or similar obligation, in either case guaranteeing or in effect
guaranteeing any Indebtedness, leases, dividends or other obligations (the “primary
obligations”) of any other third Person (the “primary obligor”) in any manner, whether
directly or indirectly, including any such obligation of the guaranteeing person, whether or not
contingent, (i) to purchase any such primary obligation or any property constituting direct or
indirect security therefor, (ii) to advance or supply funds (A) for the purchase or payment of any
such primary obligation or (B) to maintain working capital or equity capital of the primary obligor
or otherwise to maintain the net worth or solvency of the primary obligor, (iii) to purchase
property, securities or services primarily for the purpose of assuring the owner of any such
primary obligation of the ability of the primary obligor to make payment of such primary obligation
or (iv) otherwise to assure or hold harmless the owner of any such primary obligation against loss
in respect thereof; provided, however, that the term Guarantee Obligation shall not
include endorsements of instruments for deposit or collection in the ordinary course of business.
The amount of any Guarantee



17









 




Obligation of any guaranteeing person shall be deemed to be the lower of (a) an amount equal
to the stated or determinable amount of the primary obligation in respect of which such Guarantee
Obligation is made and (b) the maximum amount for which such guaranteeing person may be liable
pursuant to the terms of the instrument embodying such Guarantee Obligation, unless such primary
obligation and the maximum amount for which such guaranteeing person may be liable are not stated
or determinable, in which case the amount of such Guarantee Obligation shall be such guaranteeing
person’s maximum reasonably anticipated liability in respect thereof as determined by the Borrower
in good faith.




     “guaranteeing person”: as defined in the definition of the term “Guarantee
Obligation” in this Section 1.1.



     “Guarantor”: each Domestic Subsidiary of the Borrower (other than any Domestic
Subsidiary of a Foreign Subsidiary) which becomes a party to the Guarantee and Collateral Agreement
as a guarantor thereunder of the monetary obligations of the Borrower under the Loan Documents, in
each case, unless and until such time as the respective Guarantor ceases to constitute a Domestic
Subsidiary of the Borrower or is released from its obligations as such a guarantor under the
Guarantee and Collateral Agreement in accordance with the terms and conditions thereof.



     “Indebtedness”: of any Person at any date, (a) all indebtedness of such Person for
borrowed money or for the deferred purchase price of property or services (other than trade
liabilities incurred in the ordinary course of business), (b) any other indebtedness of such Person
which is evidenced by a note, bond, debenture or similar instrument, (c) all obligations of such
Person under Financing Leases, (d) all obligations of such Person in respect of acceptances issued
or created for the account of such Person, (e) for purposes of Section 7.2 and Section 8.1(e) only,
all obligations of such Person in respect of Interest Rate Protection Agreements, and (f) all
indebtedness or obligations of the types referred to in the preceding clauses (a) through (e) to
the extent secured by any Lien on any property owned by such Person even though such Person has not
assumed or otherwise become liable for the payment thereof.



     “Indemnification Agreement”: the Indemnification Agreement, dated as of October 20,
2009, between the Borrower and the CD&R Investors, as the same may be amended, modified and/or
supplemented from time to time in accordance with the terms hereof and thereof.



     “Indemnified Liabilities”: as defined in Section 10.5.



     “Indemnitee”: as defined in Section 10.5.



     “Individual Lender Exposure”: as to any Lender, such Lender’s Term Loan Exposure.



     “Insolvency”: with respect to any Multiemployer Plan, the condition that such Plan is
insolvent within the meaning of Section 4245 of ERISA.



     “Insolvent”: pertaining to a condition of Insolvency.



     “Intellectual Property”: as defined in Section 4.7.



18









 





     “Intercreditor Agreement”: the Intercreditor Agreement dated as of the date hereof
among the Administrative Agent and the Collateral Agent and the administrative agent and the
collateral agent under the ABL Facility, and acknowledged by certain of the Loan Parties,
substantially in the form of Exhibit D, as the same may be amended, modified and/or supplemented
from time to time in accordance with the terms thereof.



     “Intercreditor Agreement Supplement”: as defined in Section 9.9(a).



     “Interest Payment Date”: (a) as to any ABR Loan, the last day of each March, June,
September and December to occur while such Term Loan is outstanding, and the final maturity date of
such Term Loan, (b) as to any Eurocurrency Loan having an Interest Period of three months or less,
the last day of such Interest Period, and (c) as to any Eurocurrency Loan having an Interest Period
longer than three months, (i) each day which is three months, or a whole multiple thereof, after
the first day of such Interest Period and (ii) the last day of such Interest Period.



     “Interest Period”: with respect to any Eurocurrency Loan:




     (i) initially, the period commencing on the borrowing or conversion date, as
the case may be, with respect to such Eurocurrency Loan and ending one, two, three
or six months thereafter, as selected by the Borrower in its notice of borrowing or
notice of conversion, as the case may be, given with respect thereto; and




     (ii) thereafter, each period commencing on the last day of the next preceding
Interest Period applicable to such Eurocurrency Loan and ending one, two, three or
six months thereafter, as selected by the Borrower by irrevocable notice to the
Administrative Agent not less than three Business Days prior to the last day of the
then current Interest Period with respect thereto; and




provided that all of the foregoing provisions relating to Interest Periods are
subject to the following:




(A) if any Interest Period would otherwise end on a day that is not a Business Day,
such Interest Period shall be extended to the next succeeding Business Day unless
the result of such extension would be to carry such Interest Period into another
calendar month in which event such Interest Period shall end on the immediately
preceding Business Day;




(B) any Interest Period that would otherwise extend beyond the Termination Date
shall (for all purposes other than Section 3.11) end on the Termination Date;




(C) any Interest Period that begins on the last Business Day of a calendar month
(or on a day for which there is no numerically corresponding day in the calendar
month at the end of such Interest Period) shall end on the last Business Day of a
calendar month; and




19











 






(D) the Borrower shall select Interest Periods so as not to require a scheduled
payment of any Eurocurrency Loan during an Interest Period for such Term Loan.



     “Interest Rate Protection Agreement”: any interest rate protection agreement,
interest rate future, interest rate option, interest rate cap or collar or other interest rate
hedge arrangement to or under which the Borrower or any of its Subsidiaries is or becomes a party
or a beneficiary.



     “Investment Documents”: the Investment Agreement, the Stockholders Agreement, the
Registration Rights Agreement, the Indemnification Agreement and the Series B Preferred Stock CoD.



     “Investment Agreement”: the Investment Agreement, dated as of August 14, 2009,
between the Borrower and the CD&R Investors, as amended on each of August 28, 2009, August 31,
2009, October 8, 2009 and October 16, 2009, as the same now exists or may hereafter be further
amended, modified and/or supplemented from time to time in accordance with the terms hereof and
thereof.



     “Investment Company Act”: the Investment Company Act of 1940, as amended from time to
time.



     “Investments”: as defined in Section 7.8.



     “Judgment Currency”: as defined in Section 10.8(a).



     “Judgment Currency Date”: as defined in Section 10.8(a).



     “Lenders”: the several banks and other financial institutions from time to time
parties to this Agreement together with, in each case, any affiliate of any such bank or financial
institution through which such bank or financial institution elects, by notice to the
Administrative Agent and the Borrower, to make any Term Loans available to the Borrower,
provided that for all purposes of voting or consenting with respect to (a) any amendment,
supplementation or modification of any Loan Document, (b) any waiver of any of the requirements of
any Loan Document or any Default or Event of Default and its consequences or (c) any other matter
as to which a Lender may vote or consent pursuant to Section 10.1 hereof, the bank or financial
institution making such election shall be deemed the “Lender” rather than such affiliate, which
shall not be entitled to so vote or consent.



     “Lien”: any mortgage, pledge, hypothecation, assignment, security deposit
arrangement, encumbrance, lien (statutory or other), charge or other security interest or any
preference, priority or other security agreement or preferential arrangement of any kind or nature
whatsoever (including, without limitation, any conditional sale or other title retention agreement
and any Financing Lease having substantially the same economic effect as any of the foregoing).



     “Loan”: a Term Loan, collectively, the “Loans”.



     “Loan Documents”: this Agreement, any Notes, the Intercreditor Agreement, the
Guarantee and Collateral Agreement and any other Security Documents, each as amended, supplemented,
waived or otherwise modified from time to time.



20









 





     “Loan Parties”: the Borrower and each Subsidiary of the Borrower that is a party to a
Loan Document; individually, a “Loan Party”.



     “Management Investors”: the collective reference to the officers, directors,
employees and other members of the management of the Borrower or any of its Subsidiaries, or family
members or relatives thereof or trusts for the benefit of any of the foregoing, who at any
particular date shall beneficially own or have the right to acquire, directly or indirectly, common
stock of the Borrower or any Parent Entity.



     “Management Subscription Agreements”: one or more stock subscription, stock option,
grant or other agreements which have been or may be entered into between the Borrower or any Parent
Entity and one or more Management Investors (or any of their heirs, successors, assigns, legal
representatives or estates), with respect to the issuance to and/or acquisition, ownership and/or
disposition by any of such parties of common stock of the Borrower or any Parent Entity, or
options, warrants, units or other rights in respect of common stock of the Borrower or any Parent
Entity, any agreements entered into from time to time by transferees of any such stock, options,
warrants or other rights in connection with the sale, transfer or reissuance thereof, and any
assumptions of any of the foregoing by third parties, as amended, supplemented, waived or otherwise
modified from time to time.



     “Material Adverse Effect”: a material adverse effect on (a) the business, operations,
property or condition (financial or otherwise) of the Borrower and its Subsidiaries taken as a
whole or (b) the validity or enforceability as to any Loan Party party thereto of this Agreement or
any of the other Loan Documents or the rights or remedies of the Administrative Agent, the
Collateral Agent and the Lenders under the Loan Documents taken as a whole.



     “Material Subsidiaries”: Subsidiaries of the Borrower constituting, individually or
in the aggregate (as if such Subsidiaries constituted a single Subsidiary), a “significant
subsidiary” in accordance with Rule 1-02 under Regulation S-X.



     “Materials of Environmental Concern”: any hazardous or toxic substances or materials
or wastes defined, listed, or regulated as such in or under, or which may give rise to liability
under, any applicable Environmental Law, including gasoline, petroleum (including crude oil or any
fraction thereof), petroleum products or by-products, asbestos, polychlorinated biphenyls and
urea-formaldehyde insulation.



     “Maximum Consolidated Leverage Ratio”: as at the last day of any period of four
consecutive fiscal quarters of the Borrower ending on any date set forth below, the Consolidated
Leverage Ratio set forth below opposite such period:



	 	 	 
	Four Fiscal Quarter Period Ending	 	Consolidated Leverage Ratio
	October 30, 2011

	 	5.00:1.00
	 
	January 29, 2012

	 	4.75:1.00
	 
	April 29, 2012

	 	4.50:1.00






21









 






	 	 	 
	Four Fiscal Quarter Period Ending	 	Consolidated Leverage Ratio
	July 29, 2012

	 	4.25:1.00
	 
	October 28, 2012

	 	4.00:1.00
	 
	January 27, 2013

	 	3.875:1.00
	 
	April 28, 2013

	 	3.75:1.00
	 
	July 28, 2013

	 	3.625:1.00
	 
	November 3, 2013 and each fiscal quarter end
date thereafter

	 	3.50:1.00






     “Moody’s”: as defined in the definition of “Cash Equivalents” in this Section 1.1.



     “Mortgaged Properties”: the collective reference to the real properties owned in fee
by the Loan Parties described on Schedule 4.6, including all buildings, improvements, structures
and fixtures now or subsequently located thereon and owned by any such Loan Party; individually, a
“Mortgaged Property”



     “Mortgages”: each of the mortgages, deeds of trust and deeds to secure debt executed
and delivered by any Loan Party to the Administrative Agent, substantially in the form of Exhibit C
or in such other form as shall be reasonably acceptable to the Borrower and the Administrative
Agent, as the same may be amended, supplemented, waived or otherwise modified from time to time.
For the avoidance of doubt, the amendment and restatement of an Existing Mortgage shall constitute
a “Mortgage” hereunder.



     “Most Recent Four Quarter Period”: the four fiscal quarter period of the Borrower
ending on the last date of the most recently completed fiscal year or quarter for which financial
statements of the Borrower have been (or have been required to be) delivered under 

Section 6.1 (a) or (b).



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



     “Net Cash Proceeds”: with respect to any Asset Sale, any Recovery Event, or the
issuance of any debt securities or any borrowings by the Borrower or any of its Subsidiaries
pursuant to Section 7.2(c), an amount equal to the gross proceeds in cash and Cash Equivalents of
such Asset Sale, Recovery Event, issuance or borrowing, net of (a) reasonable attorneys’ fees,
accountants’ fees, brokerage, consultant and other customary fees, underwriting commissions and
other reasonable fees and expenses actually incurred in connection with such Asset Sale, Recovery
Event, issuance or borrowing, (b) Taxes paid or reasonably estimated to be payable as a result
thereof, (c) appropriate amounts provided or to be provided by the Borrower or any of its
Subsidiaries as a reserve, in accordance with GAAP, with respect to any liabilities associated with
such Asset Sale or Recovery Event and retained by the Borrower or any such Subsidiary after such
Asset Sale or Recovery Event and other appropriate amounts to be used by the



22









 




Borrower or any of its Subsidiaries to discharge or pay on a current basis any other
liabilities associated with such Asset Sale or Recovery Event, (d) in the case of an Asset Sale or
Recovery Event of or involving an asset subject to a Lien securing any Indebtedness, payments made
and installment payments required to be made to repay such Indebtedness, including payments in
respect of principal, interest and prepayment premiums and penalties, and (e) in the case of an
Asset Sale or Recovery Event of or involving an asset of any Foreign Subsidiary, any amount which
may not be applied as provided in Section 3.4(c) pursuant to any applicable legal, contractual or
other restrictions including but not limited to pursuant to the terms of any Indebtedness of any
Foreign Subsidiary.




     “Net Proceeds”: with respect to any issuance or sale of any securities or incurrence
of indebtedness of the Borrower or any Subsidiary by the Borrower or any Subsidiary, or any capital
contribution, means the cash proceeds of such issuance, sale or contribution net of attorneys’
fees, accountants’ fees, underwriters’ or placement agents’ fees, discounts or commissions and
brokerage, consultant and other fees actually incurred in connection with such issuance, sale or
contribution and net of Taxes paid or payable as a result thereof.



     “New Parent”: as defined in Section 7.6(e).



     “New Tranche B Term Loan Committed Amount”: has the meaning given in the Third
Amendment.



     “Non-Consenting Lender”: as defined in Section 10.1(e).



     “Non-Defaulting Lender”: Any Lender other than a Defaulting Lender.



     “Non-Excluded Taxes”: any Taxes other than Excluded Taxes.



     “Not Otherwise Applied” means, with reference to any amount of Excess Cash Flow, that
such amount (a) was not required to be applied to prepay the Term Loans pursuant to Section 3.4(c),
and (b) was not previously applied in determining the permissibility of a transaction under the
Loan Documents where such permissibility was (or may have been) and remains contingent on receipt
of such amount or utilization of such amount for a specified purpose. The Borrower shall promptly
notify the Administrative Agent of any application of such amount as contemplated by clause (b)
above.



     “Notes”: the Term Loan Notes.



     “Obligation Currency”: as defined in Section 10.8(a).



     “Offer”: as defined in Section 3.4(b).



     “Offer Loans”: as defined in Section 3.4(b).



     “Original Credit Agreement”: as defined in the Recitals.



     “Original Collateral”: Collateral, as defined in the Original Security Agreement



23









 





     “Original Security Agreement”: the Security Agreement, dated as of June 18, 2004,
between the Borrower, the subsidiary guarantors party thereto, and the Administrative Agent.



     “Original Security Documents”: the Original Security Agreement, any pledge
agreements, any account control agreements and any and all other agreements, instruments and
documents entered into or delivered pursuant to or in connection with a security interest in the
Original Collateral pursuant to the Original Credit Agreement; for the avoidance of doubt, the
Existing Mortgages are not included in the defined term “Original Security Documents”.



     “Other Representatives”: Wells Fargo Securities, LLC, in its capacity as bookrunner
and lead arranger of the Commitments hereunder.



     “Parent Entity”: any Person of which the Borrower becomes a Subsidiary after the
Closing Date that is designated by the Borrower as a “Parent Entity,” provided that either
(x) immediately prior to becoming a Parent Entity, such Person was a Subsidiary of Borrower and
became a Parent Entity pursuant to a merger of another Subsidiary with Borrower in which the Voting
Stock of Borrower was exchanged for or converted into Voting Stock of such Person (or the right to
receive such Voting Stock) or (y) immediately after the Borrower first becomes a Subsidiary of such
Person, more than 50% of the Voting Stock of such Person shall be held by one or more Persons that
held more than 50% of the Voting Stock of the Borrower or a Parent Entity of the Borrower
immediately prior to the Borrower first becoming such Subsidiary.



     “Participants”: as defined in Section 10.6(b)(vii).



     “Patriot Act”: as defined in Section 10.19.



     “PBGC”: the Pension Benefit Guaranty Corporation established pursuant to Subtitle A
of Title IV of ERISA (or any successor thereto).



     “Permitted Hedging Arrangement”: agreements or arrangements relating to interest,
currency, commodity or other hedging entered into, purchased or otherwise acquired by the Borrower
or any of its Subsidiaries for bona fide hedging purposes.



     “Permitted Holders”: (a) CD&R, any CD&R Investor and any of their respective
Affiliates; (b) any investment fund or vehicle managed, sponsored or advised by CD&R or any
Affiliate thereof, and any Affiliate of or successor to any such investment fund or vehicle, (c)
any limited or general partners of, or other investors in, any CD&R Investor or any Affiliate
thereof, or any such investment fund or vehicle, (d) any Management Investors and (e) any Person
acting in the capacity of an underwriter in connection with a public or private offering of Capital
Stock of the Borrower or any Parent Entity, and in each case their successors and assigns.



     “Permitted Liens”: as defined in Section 7.3.



     “Person”: an individual, partnership, corporation, limited liability company,
business trust, joint stock company, trust, unincorporated association, joint venture, Governmental
Authority or other entity of whatever nature.



24









 





     “Plan”: at a particular time, any employee benefit plan which is covered by ERISA and
in respect of which the Borrower or a Commonly Controlled Entity is an “employer” as defined in
Section 3(5) of ERISA.



     “Preferred Stock”: the Series B Cumulative Convertible Participating Preferred Stock,
par value $1.00 per share, of the Borrower.



     “primary obligations”: as defined in the definition of the term “Guarantee
Obligation” in this Section 1.1.



     “primary obligor”: as defined in the definition of the term “Guarantee Obligation” in
this Section 1.1.



     “Prime Rate”: as defined in the definition of the term “ABR” in this Section 1.1.



     “rate of exchange”: as defined in Section 10.8(c).



     “Recovery Event”: any settlement of or payment in respect of any property or casualty
insurance claim or any condemnation proceeding relating to any asset of the Borrower or any of its
Subsidiaries giving rise to Net Cash Proceeds to the Borrower or such Subsidiary, as the case may
be, in excess of $1,000,000, to the extent that such settlement or payment does not constitute
reimbursement or compensation for amounts previously paid by the Borrower or any of its
Subsidiaries in respect of such casualty or condemnation.



     “Reference Period”: as defined in the definition of the term “EBITDA” of this Section
1.1.



     “Refinance”: with respect to any then outstanding Indebtedness, the issuance of
Indebtedness issued or given in exchange for, or the proceeds of which are used to, extend,
refinance, renew, replace, substitute or refund, in whole or in part, such theretofore outstanding
Indebtedness.



     “Register”: as defined in Section 10.6(b).



     “Registration Rights Agreement”: the Registration Rights Agreement, dated as of
October 20, 2009, between the Borrower and the CD&R Investors, as the same may be amended, modified
and/or supplemented from time to time in accordance with the terms hereof and thereof..



     “Regulation S-X”: Regulation S-X promulgated by the Securities and Exchange
Commission, as in effect on the Closing Date.



     “Regulation T”: Regulation T of the Board as in effect from time to time.



     “Regulation U”: Regulation U of the Board as in effect from time to time.



     “Regulation X”: Regulation X of the Board as in effect from time to time.



25









 





     “Reinvested Amount”: with respect to any Asset Sale permitted by Section 7.6(i) or
Recovery Event, that portion of the Net Cash Proceeds thereof (which portion shall not exceed, with
respect to any Asset Sale occurring on or after the Closing Date (but not any Recovery Event and
excluding any amount applied to permit any acquisition pursuant to Section 7.9(b)(ii)), $40,000,000
minus the aggregate Reinvested Amounts with respect to all such Asset Sales on or after the Closing
Date) as shall, according to a certificate of a Responsible Officer of the Borrower delivered to
the Administrative Agent within 30 days of such Asset Sale or Recovery Event, be reinvested in the
business of the Borrower and its Subsidiaries in a manner consistent with the provisions hereof
within 180 days of the receipt of such Net Cash Proceeds with respect to any such Asset Sale or
Recovery Event or, if such reinvestment is in a project authorized by the board of directors of the
Borrower that will take longer than such 180 days to complete, the period of time necessary to
complete such project; provided that if any such certificate of a Responsible Officer is
not delivered to the Administrative Agent on the date of such Asset Sale or Recovery Event, subject
to the terms of the Intercreditor Agreement, any Net Cash Proceeds of such Asset Sale or Recovery
Event shall be immediately deposited in a cash collateral account, established at the
Administrative Agent or to be held as collateral in favor of the Administrative Agent as
applicable, for the benefit of the Lenders on terms reasonably satisfactory to the Administrative
Agent, and shall remain on deposit in such cash collateral account until such certificate of a
Responsible Officer is delivered to the Administrative Agent.



     “Related Taxes”: (x) any taxes, charges or assessments, including but not limited to
sales, use, transfer, rental, ad valorem, value-added, stamp, property, consumption, franchise,
license, capital, net worth, gross receipts, excise, occupancy, intangibles or similar taxes,
charges or assessments (other than federal, state or local taxes measured by income and federal,
state or local withholding imposed by any government or other taxing authority on payments made by
any Parent Entity other than to another Parent Entity), required to be paid by any Parent Entity by
virtue of its being incorporated or having Capital Stock outstanding (but not by virtue of owning
stock or other equity interests of any corporation or other entity other than the Borrower, any of
its Subsidiaries or any Parent Entity), or being a holding company parent of the Borrower, any of
its Subsidiaries or any Parent Entity or receiving dividends from or other distributions in respect
of the Capital Stock of the Borrower, any of its Subsidiaries or any Parent Entity, or having
guaranteed any obligations of the Borrower or any Subsidiary thereof, or having made any payment in
respect of any of the items for which the Borrower or any of its Subsidiaries is permitted to make
payments to any Parent Entity pursuant to Section 7.7, or acquiring, developing, maintaining,
owning, prosecuting, protecting or defending its intellectual property and associated rights
(including but not limited to receiving or paying royalties for the use thereof) relating to the
business or businesses of the Borrower or any Subsidiary thereof, or (y) any other federal, state,
foreign, provincial or local taxes measured by income for which any Parent Entity is liable up to
an amount not to exceed, with respect to federal taxes, the amount of any such taxes that the
Borrower and its Subsidiaries would have been required to pay on a separate company basis, or on a
consolidated basis as if the Borrower had filed a consolidated return on behalf of an affiliated
group (as defined in Section 1504 of the Code or an analogous provision of state, local or foreign
law) of which it were the common parent, or with respect to state and local taxes, the amount of
any such taxes that the Borrower and its Subsidiaries would have been required to pay on a separate
company basis, or on a combined basis as if the Borrower had filed a combined return on behalf of
an affiliated group consisting only of the Borrower and its Subsidiaries.



26









 





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



     “Reportable Event”: any of the events set forth in Section 4043(c) of ERISA, other
than those events as to which the thirty day notice period is waived
under Sections .13, .14, .16, .18, .19 or .20 of PBGC Reg. § 2615 or any successor regulation thereto.



     “Required Amortization Amount”: as defined in Section 7.1(b).



     “Required Lenders”: Lenders the sum of whose outstanding Individual Lender Exposures
represent at least a majority of the sum of the aggregate amount of all outstanding Term Loans of
Non-Defaulting Lenders, excluding any Lender that is a CD&R Holder other than with respect to any
consent, approval, vote or other action of Required Lenders that would result in a disproportionate
impact or effect on any Lender that is a CD&R Holder (as Lender) in relation to one or more Lenders
that are not CD&R Holders.



     “Requirement of Law”: as to any Person, the certificate of incorporation and by-laws
or other organizational or governing documents of such Person, and any law, statute, ordinance,
code, decree, treaty, rule or regulation or determination of an arbitrator or a court or other
Governmental Authority, in each case applicable to or binding upon such Person or any of its
material property or to which such Person or any of its material property is subject, including
laws, ordinances and regulations pertaining to zoning, occupancy and subdivision of real
properties; provided that the foregoing shall not apply to any non-binding recommendation
of any Governmental Authority.



     “Responsible Officer”: as to any Person, any of the following officers of such
Person: (a) the chief executive officer or the president of such Person and, with respect to
financial matters, the chief financial officer, the treasurer or the controller of such Person, (b)
any vice president of such Person or, with respect to financial matters, any assistant treasurer or
assistant controller of such Person, who has been designated in writing to the Administrative Agent
as a Responsible Officer by such chief executive officer or president of such Person or, with
respect to financial matters, such chief financial officer of such Person, (c) with respect to
Section 6.7 and without limiting the foregoing, the general counsel of such Person and (d) with
respect to ERISA matters, the senior vice president – human resources (or substantial equivalent)
of such Person.



     “Rollover Indebtedness”: Existing Indebtedness of the Borrower and its Subsidiaries
identified on Schedule B hereto, in each case that remains outstanding after the Closing Date.



     “S&P”: as defined in the definition of the term “Cash Equivalents” in this Section
1.1.



     “Sale and Leaseback Transaction”: any arrangement with any Person providing for the
leasing by the Borrower or any of its Subsidiaries of real or personal property which has been or
is to be sold or transferred by the Borrower or any such Subsidiary to such Person or to any other
Person to whom funds have been or are to be advanced by such Person on the security of such
property or rental obligations of the Borrower or such Subsidiary.



     “Secured Parties”: as defined in the Guarantee and Collateral Agreement.



27









 





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



     “Security Documents”: the collective reference to each Mortgage related to any
Mortgaged Property, the Guarantee and Collateral Agreement and all other similar security documents
hereafter delivered to the Collateral Agent granting a Lien on any asset or assets of any Person to
secure the obligations and liabilities of the Loan Parties hereunder and/or under any of the other
Loan Documents or to secure any guarantee of any such obligations and liabilities, including any
security documents executed and delivered or caused to be delivered to the Collateral Agent
pursuant to Section 6.9(b), in each case as amended, supplemented, waived or otherwise modified
from time to time.



     “Senior Notes”: as defined in Section 7.2(c).



     “Series B Preferred Stock CoD”: the Certificate of Designations, Preferences and
Rights of Series B Cumulative Convertible Participating Preferred Stock of NCI Building Systems,
Inc., dated October 20, 2009.



     “Set”: the collective reference to Eurocurrency Loans of a single Tranche, the then
current Interest Periods with respect to all of which begin on the same date and end on the same
later date (whether or not such Term Loans shall originally have been made on the same day).



     “Single Employer Plan”: any Plan which is covered by Title IV of ERISA, but which is
not a Multiemployer Plan.



     “Solvent” and “Solvency”: with respect to any Person on a particular date, the
condition that, on such date, (a) the fair value of the property of such Person is greater than the
total amount of liabilities, including contingent liabilities, of such Person, (b) the present fair
salable value of the assets of such Person is not less than the amount that will be required to pay
the probable liability of such Person on its debts as they become absolute and matured, (c) such
Person does not intend to, and does not believe that it will, incur debts or liabilities beyond
such Person’s ability to pay as such debts and liabilities mature, and (d) such Person is not
engaged in business or a transaction, and is not about to engage in business or a transaction, for
which such Person’s property would constitute an unreasonably small amount of capital.



     “Stockholders Agreement”: the Stockholders Agreement, dated as of October 20, 2009,
between the Borrower and the CD&R Investors, as the same may be amended, modified and/or
supplemented from time to time in accordance with the terms hereof and thereof.



     “Subordinated Indebtedness”: as defined in Section 7.2(c).



     “Subsidiary”: as to any Person, a corporation, partnership, limited liability company
or other entity (a) of which shares of stock or other ownership interests having ordinary voting
power (other than stock or such other ownership interests having such power only by reason of the
happening of a contingency) to elect a majority of the board of directors or other managers of such
corporation, partnership, limited liability company or other entity are at the time owned by such
Person, or (b) the management of which is otherwise controlled, directly or indirectly through one
or more intermediaries, or both, by such Person and, in the case of this clause (b), which is
treated as a consolidated subsidiary for accounting purposes. Unless otherwise



28









 




qualified, all references to a “Subsidiary” or to “Subsidiaries” in this Agreement shall refer
to a Subsidiary or Subsidiaries of the Borrower.




     “Target Amortization Amount”: as defined in the definition of the term “Applicable
Margin” in this Section 1.1.



     “Tax Sharing Agreement” means any Tax Sharing Agreement entered into between the
Borrower and any Parent Entity, substantially in the form of Exhibit G or otherwise in form and
substance reasonably satisfactory to the Administrative Agent.



     “Taxes”: any and all present or future income, stamp or other taxes, levies, imposts,
duties, fees, deductions or withholdings, now or hereafter imposed, levied, collected, withheld or
assessed by any Governmental Authority.



     “Tax Refund Calculation Date”: (i) each day on which the Borrower or any Subsidiary
receives a 2009 Tax Refund of U.S. federal income taxes and (ii) the last day of any fiscal quarter
of the Borrower if during such fiscal quarter the Borrower and its Subsidiaries have received 2009
Tax Refunds of state income taxes, in the aggregate, in excess of $100,000, provided that
if, during any fiscal quarter, the Borrower and its Subsidiaries have received 2009 Tax Refunds of
state income taxes that, in the aggregate, do not exceed $100,000, then the amount of such 2009 Tax
Refunds received in such fiscal quarter shall be treated as being received by the Borrower and its
Subsidiaries in the immediately following fiscal quarter for the purpose of this clause (ii).



     “Tax Refund Prepayment Date”: as defined in Section 3.4(c)(iii).



     “Term Loan”: each Term Loan advanced pursuant to the Facility.



     “Term Loan Exposure”: as to any Lender, at any time, the amount of unpaid Term Loans
made by such Lender pursuant to Section 2.1.



     “Term Loan Lender”: any Lender having a Tranche B Term Loan Commitment hereunder
and/or a Term Loan outstanding hereunder.



     “Term Loan Note”: each Term Loan Note as defined in Section 2.2 and each New Term
Loan Note.



     “Term Loan Percentage”: as to any Term Loan Lender at any time, the percentage which
such Lender’s Term Loans then outstanding constitutes of the aggregate Term Loans then outstanding.



     “Term Loan Prepayment”: as defined in Section 5.1(b).



     “Termination Date”: the date that is four years and six months from the Closing Date.



     “Third Amendment”: as defined in the recitals.



29









 





     “Third Amendment Effective Date”: has the meaning given in the Original Credit
Agreement.



     “Total Credit Percentage”: as to any Lender at any time, the percentage of the
aggregate Total Commitment then constituted by such Lender’s Commitment.



     “Total Commitment”: at any time, the sum of the Commitments of each of the Lenders at
such time.



     “Total Lender Exposure”: at any time, the sum of all Individual Lender Exposures.



     “Total Term Loan Commitment”: at any time, the sum of the Tranche B Term Loan
Commitments of all of the Lenders at such time.



     “Tranche”: each tranche of Loans available hereunder, with there being one on the
Closing Date; namely Term Loans.



     “Tranche B Term Loan Commitment”: as to any Lender, its obligation to make Term Loans
to the Borrower; collectively, as to all the Term Loan Lenders, the “Tranche B Term Loan
Commitments”.



     “Transactions”: as defined in Section 5.1(b).



     “Transferee”: any Participant or Assignee.



     “Type”: the type of Loan determined based on the currency in which the same is
denominated, and the interest option applicable thereto, with there being multiple Types of Term
Loans hereunder, namely ABR Loans and Eurocurrency Loans.



     “UCC”: the Uniform Commercial Code as in effect in the State of New York from time to
time.



     “Underfunding”: the excess of the present value of all accrued benefits under a Plan
(based on those assumptions used to fund such Plan), determined as of the most recent annual
valuation date, over the value of the assets of such Plan allocable to such accrued benefits.



     “Unscheduled Assumed Indebtedness”: existing Indebtedness of the Borrower and its
Subsidiaries identified on Schedule C, which (i) does not constitute Rollover Indebtedness, (ii)
will not be repaid in connection with the Transactions and (iii) has material terms and conditions
reasonably satisfactory to the Required Lenders.



     “U.S. Tax Compliance Certificate”: as defined in Section 3.10(b).



     “Voting Stock”: shares of Capital Stock entitled to vote generally in the election of
directors.



     “Wholly Owned Domestic Subsidiary”: as to any Person, any Domestic Subsidiary of such
Person that is a Wholly Owned Subsidiary of such Person.



30









 





     “Wholly Owned Subsidiary”: as to any Person, any Subsidiary of such Person of which
such Person owns, directly or indirectly through one or more Wholly Owned Subsidiaries, all of the
Capital Stock of such Subsidiary other than directors qualifying shares or shares held by nominees.



     Section 1.2 Other Definitional Provisions.



     (a) Unless otherwise specified therein, all terms defined in this Agreement shall have the
defined meanings when used in any Notes, any other Loan Document or any certificate or other
document made or delivered pursuant hereto.



     (b) As used herein and in any Notes and any other Loan Document, and any certificate or other
document made or delivered pursuant hereto or thereto, accounting terms relating to the Borrower
and its Subsidiaries not defined in Section 1.1 and accounting terms partly defined in Section 1.1,
to the extent not defined, shall have the respective meanings given to them under GAAP.



     (c) The words “hereof”, “herein” and “hereunder” and words of similar import when used in this
Agreement shall refer to this Agreement as a whole and not to any particular provision of this
Agreement, and Section, Schedule and Exhibit references are to this Agreement unless otherwise
specified. The words “include”, “includes” and “including” shall be deemed to be followed by the
phrase “without limitation”.



     (d) The meanings given to terms defined herein shall be equally applicable to both the
singular and plural forms of such terms.



ARTICLE II




AMOUNT AND TERMS OF COMMITMENTS



     Section 2.1 Term Loans.



     (a) On the date of this Agreement, upon and subject to the terms and conditions of this
Agreement, each Lender holds Term Loans initially funded under the Original Credit Agreement and
outstanding hereunder, in the aggregate principal amount set forth opposite such Lender’s name in
Schedule A, in each case as such amounts may be adjusted or reduced pursuant to the terms hereof.
The Term Loans, except as hereinafter provided, shall, at the option of the Borrower, be maintained
as, and/or converted into, ABR Loans or Eurocurrency Loans, provided that except as
otherwise specifically provided in Section 3.8 and Section 3.9, all Term Loans comprising the same
borrowing shall at all times be of the same Type.



     (b) Once repaid, Term Loans outstanding hereunder may not be reborrowed.



     Section 2.2 Term Loan Notes. Each Lender in possession of any promissory notes issued
by the Borrower evidencing obligations under Original Credit Agreement prior to the Closing Date
shall return such promissory notes to the Borrower no later than the Closing Date, whereupon such
returned promissory notes shall be marked “Cancelled” and new replacement promissory notes in the
form of Exhibit A (each, as amended, supplemented, replaced or



31









 




otherwise modified from time to time, a “Term Loan Note”) issued to such Lender in
equal principal amount. Any Term Loan Notes issued prior to the Closing Date not so tendered for
exchange shall be void and deemed cancelled. Each Term Loan Note issued with respect to Term Loans
provided under the initial Term Loan Commitment shall be dated the Closing Date and each Term Loan
Note issued with respect to Term Loans provided under the New Tranche B Term Loan Committed Amount
shall be dated the Third Amendment Effective Date. Each Term Loan Note shall be payable as
provided in Section 2.1 and provide for the payment of interest in accordance with Section 3.1.




     Section 2.3 Repayment of Term Loans.



     The aggregate Term Loans of all the Lenders shall be payable in consecutive quarterly
installments from and after the Closing Date to and including the Termination Date (subject to
reduction as provided in Section 3.4), on the dates and in the principal amounts, subject to
adjustment as set forth below, equal to the respective amounts set forth below (together with all
accrued interest thereon) opposite the applicable installment dates (or, if less, the aggregate
amount of such Term Loans then outstanding):



	 	 	 
	Date	 	Amount
	The last day of each March, June,
September and December to occur (x)
on or after the first day of the
second calendar quarter to commence
after the Closing Date and (y) prior
to the Termination Date

	 	0.25% of the aggregate principal
amount of all outstanding Term Loans
as of such date
	 
	 	 
	Termination Date

	 	All unpaid aggregate principal
amounts of any outstanding Term
Loans






     Section 2.4 Record of Term Loans.



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



     (b) The Administrative Agent shall maintain the Register pursuant to Section 10.6(b), and a
subaccount therein for each Lender, in which shall be recorded (i) the amount of each Term Loan
made hereunder, the Type thereof and each Interest Period, if any, applicable thereto, (ii) the
amount of any principal or interest due and payable or to become due and payable from the Borrower
to each Lender hereunder and (iii) both the amount of any sum received by the Administrative Agent
hereunder from the Borrower and each Lender’s share thereof.



32









 





     (c) The entries made in the Register and the accounts of each Lender maintained pursuant to
Section 2.4(a) shall, to the extent permitted by applicable law, be prima facie evidence of the
existence and amounts of the obligations of the Borrower therein recorded; provided,
however, that the failure of any Lender or the Administrative Agent to maintain the
Register or any such account, or any error therein, shall not in any manner affect the obligation
of the Borrower to repay (with applicable interest) the Term Loans made to the Borrower by such
Lender in accordance with the terms of this Agreement.



     Section 2.5 Additional Commitments.



     (a) Requests for Additional Commitments. So long as no Default or Event of Default
exists or would arise therefrom, at any time and from time to time prior to the Termination Date,
subject to the terms and conditions set forth herein, the Borrower may, by notice to the
Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of
the Lenders), request to add additional Tranche B Term Loan Commitments under the Facility or under
a new term loan credit facility to be included under the Facility (the “Additional
Commitments”). Any Additional Commitments shall be in an aggregate principal amount that
(x) is not less than $5,000,000 or any whole multiple of $1,000,000 in excess thereof, and
(y) together with the aggregate principal amount of all Additional Commitments previously obtained
pursuant to this Section 2.5 does not exceed the sum of $50,000,000.



     (b) Ranking and Other Provisions. The additional Term Loans made pursuant to
Additional Commitments (the “Additional Term Loans”) (i) shall have the same guarantees as,
and be secured on a pari passu basis in right of payment and security by the same Collateral
securing, the previously outstanding Term Loans (the “Existing Term Loans”) (to the extent
such guarantees and such security in such Collateral can be reasonably obtained without material
cost or risk, and subject to legal limitations and tax structuring considerations), (ii) shall have
a stated maturity date not earlier than the Termination Date and (iii) except as set forth above,
shall be treated substantially the same as the Existing Term Loans, provided that any or
all of the terms and conditions of or applicable to any Additional Term Loans may (at the
Borrower’s option) be different from those of the Existing Term Loans.



     (c) Additional Amendments. Each notice from the Borrower pursuant to this Section 2.5
shall set forth the requested amount and proposed terms of the relevant Additional Commitment.
Additional Commitments (or any portion thereof) may be made by any existing Lender or by any other
bank or entity (any such bank or other financial institution, an “Additional Lender”), in
each case on terms permitted in this Section 2.5 or otherwise on terms reasonably acceptable to the
Administrative Agent. No Lender shall be obligated to provide any Additional Commitments unless it
so agrees. Commitments in respect of any additional Term Loans shall become Commitments under this
Agreement pursuant to an amendment (an “Additional Term Loan Amendment”) to this Agreement
and, as appropriate, the other Loan Documents, executed by the Borrower as of the Additional Term
Loan Closing Date (as defined below), each Lender agreeing to provide such Additional Commitment,
if any, each Additional Lender, if any (each such Lender or Additional Lender, an “Additional
Committing Lender”), and the Administrative Agent. An Additional Term Loan Amendment may,
without the consent of any other Lenders, effect such amendments to any Loan Documents as may be
necessary or



33









 




appropriate, in the opinion of the Administrative Agent, to effect the provisions of this
Section 2.5.




     (d) Certain Conditions. The effectiveness of any Additional Term Loan Amendment
shall, unless otherwise agreed to by the Administrative Agent and each Additional Committing
Lender, be subject to the satisfaction on the date thereof (each, an “Additional Term Loan
Closing Date”) of each of the following conditions:




     (i) the Administrative Agent shall have received on or prior to the Additional Term
Loan Closing Date each of the following, each dated the applicable Additional Term Loan
Closing Date unless otherwise indicated or agreed to by the Administrative Agent and each in
form and substance reasonably satisfactory to the Administrative Agent: (A) the applicable
Additional Term Loan Amendment executed by each Additional Committing Lender and the
Borrower; (B) certified copies of resolutions of the board of directors of the Borrower as
of the Additional Term Loan Closing Date, approving the execution, delivery and performance
of the Additional Term Loan Amendment; and (C) to the extent requested by the Administrative
Agent, an opinion of counsel for the Loan Parties dated the Additional Term Loan Closing
Date, addressed to the Administrative Agent and the Lenders and in form and substance
reasonably satisfactory to the Administrative Agent;




     (ii) the conditions precedent set forth in Section 5.2 shall have been satisfied both
before and after giving effect to such Additional Term Loan Amendment and the Additional
Term Loan provided thereby;




     (iii) there shall have been paid to the Administrative Agent, for the account of the
Additional Committing Lenders, all reasonable fees, if any, as may have been separately
agreed in writing by the Borrower to be due and payable to the Additional Committing Lenders
on or before the Additional Term Loan Closing Date; and




     (iv) after giving effect, on a pro forma basis, to the issuance of the Additional Term
Loans, the Consolidated Leverage Ratio of the Borrower as of the last day of the Most Recent
Four Quarter Period shall be less than 4.00 to 1.00.



ARTICLE III




GENERAL PROVISIONS APPLICABLE TO TERM LOANS



     Section 3.1 Interest Rates and Payment Dates.



     (a) Each Eurocurrency Loan shall bear interest for each day during each Interest Period with
respect thereto at a rate per annum equal to the Eurocurrency Rate determined for such day plus the
Applicable Margin in effect for such day.



     (b) Each ABR Loan shall bear interest for each day that it is outstanding at a rate per annum
equal to the ABR for such day plus the Applicable Margin in effect for such day.



34









 





     (c) If all or a portion of (i) the principal amount of any Term Loan, (ii) any interest
payable thereon or (iii) any other amount payable hereunder shall not be paid when due (whether at
the stated maturity, by acceleration or otherwise), such overdue amount shall bear interest at a
rate per annum which is (x) in the case of overdue principal, the rate that would otherwise be
applicable thereto pursuant to the relevant foregoing provisions of this Section plus 2.00%, (y) in
the case of overdue interest, the rate that would be otherwise applicable to principal of the
related Term Loan pursuant to the relevant foregoing provisions of this Section (other than clause
(x) above) plus 2.00% and (z) in the case of, fees, commissions or other amounts, the rate
described in paragraph (b) of this Section for ABR Loans plus 2.00%, in each case from the date of
such non-payment until such amount is paid in full (as well after as before judgment).



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



     (e) It is the intention of the parties hereto to comply strictly with applicable usury laws;
accordingly, it is stipulated and agreed that the aggregate of all amounts which constitute
interest under applicable usury laws, whether contracted for, charged, taken, reserved, or
received, in connection with the indebtedness evidenced by this Agreement or any Notes, or any
other document relating or referring hereto or thereto, now or hereafter existing, shall never
exceed under any circumstance whatsoever the maximum amount of interest allowed by applicable usury
laws.



     Section 3.2 Conversion and Continuation Options.



     (a) The Borrower may elect from time to time to convert outstanding Term Loans from
Eurocurrency Loans made or outstanding in Dollars to ABR Loans by giving the Administrative Agent
at least two Business Days’ prior irrevocable notice of such election, provided that any
such conversion of Eurocurrency Loans may only be made on the last day of an Interest Period with
respect thereto. The Borrower may elect from time to time to convert outstanding Term Loans made
or outstanding in Dollars from ABR Loans to Eurocurrency Loans outstanding in Dollars by giving the
Administrative Agent at least three Business Days’ prior irrevocable notice of such election. Any
such notice of conversion to Eurocurrency Loans outstanding in Dollars shall specify the length of
the initial Interest Period or Interest Periods therefor. Upon receipt of any such notice the
Administrative Agent shall promptly notify each affected Lender thereof. All or any part of
outstanding Eurocurrency Loans made or outstanding in Dollars and ABR Loans may be converted as
provided herein, provided that (i) (unless the Required Lenders otherwise consent) no Term
Loan may be converted into a Eurocurrency Loan when any Default or Event of Default has occurred
and is continuing and, in the case of any Default, the Administrative Agent has given notice to the
Borrower that no such conversions may be made and (ii) no Term Loan may be converted into a
Eurocurrency Loan after the date that is one month prior to the Termination Date.



     (b) Any Eurocurrency Loan may be continued as such upon the expiration of the then current
Interest Period with respect thereto by the Borrower giving notice to the Administrative Agent of
the length of the next Interest Period to be applicable to such Term Loan, determined in accordance
with the applicable provisions of the term “Interest Period” set forth in Section 1.1,



35









 




provided that no Eurocurrency Loan may be continued as such (i) (unless the Required
Lenders otherwise consent) when any Default or Event of Default has occurred and is continuing and,
in the case of any Default, the Administrative Agent has given notice to the Borrower that no such
continuations may be made or (ii) after the date that is one month prior to the Termination Date,
and provided, further, that (A) if the Borrower shall fail to give any required
notice as described above in this paragraph or if such continuation is not permitted pursuant to
the preceding proviso such Eurocurrency Loans shall be automatically converted to ABR Loans on the
last day of such then expiring Interest Period and (B) if the Borrower shall fail to give any
required notice as described above in this paragraph or if such continuation is not permitted
pursuant to clause (i) of the preceding proviso, such Eurocurrency Loans will be continued for the
shortest available Interest Periods as determined by the Administrative Agent. Upon receipt of any
such notice of continuation pursuant to this Section 3.2(b), the Administrative Agent shall
promptly notify each affected Lender thereof.




     Section 3.3 Minimum Amounts of Sets.



     All borrowings, conversions and continuations of Term Loans hereunder and all selections of
Interest Periods hereunder shall be in such amounts and be made pursuant to such elections so that,
after giving effect thereto, the aggregate principal amount of the Eurocurrency Loans outstanding
in Dollars comprising each Set shall be equal to $2,000,000 or a whole multiple of $1,000,000 in
excess thereof and so that there shall not be more than 15 Sets at any one time outstanding.



     Section 3.4 Optional and Mandatory Prepayments.



     (a) Optional Prepayment. The Borrower may at any time and from time to time prepay
the Term Loans made to it, in whole or in part, subject to Section 3.11, without premium or
penalty, upon at least three Business Days’ irrevocable notice by the Borrower to the
Administrative Agent (in the case of Eurocurrency Loans outstanding), at least one Business Day’s
irrevocable notice by the Borrower to the Administrative Agent (in the case of ABR Loans
outstanding). Such notice shall specify, in the case of any prepayment of Term Loans, the date and
amount of prepayment and whether the prepayment is of Eurocurrency Loans, ABR Loans or a
combination thereof, and, in each case if a combination thereof, the principal amount allocable to
each. Upon the receipt of any such notice the Administrative Agent shall promptly notify each
affected Lender thereof. If any such notice is given, the amount specified in such notice shall be
due and payable on the date specified therein, together with (if a Eurocurrency Loan is prepaid
other than at the end of the Interest Period applicable thereto) any amounts payable pursuant to
Section 3.11 and accrued interest to such date on the amount prepaid; provided that,
notwithstanding anything to the contrary in this Section 3.4(a), the Borrower may rescind any
notice of prepayment under this Section 3.4(a), if such prepayment would have resulted from a
refinancing of this Facility, which refinancing shall not be consummated or shall otherwise be
delayed. Partial prepayments of the Term Loans pursuant to this Section 3.4(a) shall be applied to
such installment or installments thereof at the Borrower may elect; provided that,
notwithstanding the foregoing, any Term Loan may be prepaid in its entirety.



     (b) Optional Repurchase. Notwithstanding anything to the contrary contained in this
Section 3.4 or any other provision of this Agreement and without otherwise limiting the rights in



36









 




respect of prepayments of the Term Loans of the Borrower and its Subsidiaries, the Borrower or
any Subsidiary of the Borrower may repurchase outstanding Term Loans pursuant to this Section 3.4
on the following basis:





     (i) The Borrower or any Subsidiary of the Borrower may make one or more offers (each,
an “Offer”) to repurchase all or any portion of the Term Loans (such Term Loans, the
“Offer Loans”) of Term Loan Lenders; provided that, (A) the Borrower shall
have used commercially reasonable efforts to have the Facility rated by Standard & Poor’s
and Moody’s prior to the proposed consummation date of such Offer, (B) Standard & Poor’s
shall not have issued, or indicated that it will issue, a rating with respect to the
Facility of SD or D and Moody’s shall not have issued, or indicated that it will issue, a
rating with respect to the Facility of C, in each case with such rating to be in effect at
the time of the proposed consummation date of such Offer, (C) the Borrower or such
Subsidiary delivers a notice of such Offer to the Administrative Agent and all Term Loan
Lenders no later than noon (New York City time) at least five Business Days in advance of a
proposed consummation date of such Offer indicating (1) the last date on which such Offer
may be accepted, (2) the maximum dollar amount of such Offer, (3) the repurchase price per
dollar of principal amount of such Offer Loans at which the Borrower or such Subsidiary is
willing to repurchase such Offer Loans and (4) the instructions, consistent with this
Section 3.4 with respect to the Offer, that a Term Loan Lender must follow in order to have
its Offer Loans repurchased; (D) the Borrower or such Subsidiary shall hold such Offer open
for a minimum period of two Business Days; (E) a Term Loan Lender who elects to participate
in the Offer may choose to sell all or part of such Term Loan Lender’s Offer Loans; and (F)
such Offer shall be made to Term Loan Lenders holding the Offer Loans on a pro rata basis in
accordance with the respective principal amount then due and owing to the Term Loan Lenders;
provided, further that, if any Term Loan Lender elects not to participate in
the Offer, either in whole or in part, the amount of such Term Loan Lender’s Offer Loans not
being tendered shall be excluded in calculating the pro rata amount applicable to the
balance of such Offer Loans;




     (ii) In addition to any repurchase pursuant to Section 3.4(b)(i) above, the Borrower or
any Subsidiary of the Borrower may repurchase all or any portion of the Term Loans held by
(x) any Lender on terms mutually acceptable to the Borrower or such Subsidiary and to such
Lender or (y) any CD&R Holder pursuant to and in accordance with the provisions of the
Stockholders Agreement;




     (iii) With respect to all repurchases made by the Borrower or a Subsidiary of the
Borrower, such repurchases shall be deemed to be voluntary prepayments pursuant to this
Section 3.4 in an amount equal to the aggregate principal amount of such Term Loans,
provided that such repurchases shall not be subject to the provisions of Section 3.7
and Section 3.11;




     (iv) Following any repurchase by the Borrower or any Subsidiary of the Borrower
pursuant to this Section 3.4, (A) all principal and accrued and unpaid interest on the Term
Loans so repurchased shall be deemed to have been paid for all purposes and no longer
outstanding (and may not be resold by the Borrower or such Subsidiary), for all



37









 







purposes of this Agreement and all other Loan Documents, (B) the Borrower or any
Subsidiary of the Borrower, as the case may be, will promptly advise the Administrative
Agent of the total amount of Offer Loans that were repurchased from each Lender who elected
to participate in the Offer; and (C) unless otherwise consented to by the Borrower, each
Lender participating in such repurchase shall surrender to the Borrower any outstanding
Notes held by it all or a portion of which are being repurchased and such Notes shall be
marked “cancelled” by the Borrower; and




     (v) Failure by the Borrower or a Subsidiary of the Borrower to make any payment to a
Lender required by an agreement permitted by this Section 3.4(b) shall not constitute an
Event of Default under Section 8.1(a).



     (c) Mandatory Prepayments.




     (i) If on or after the Closing Date (1) the Borrower or any of its Subsidiaries shall
incur Indebtedness for borrowed money pursuant to Section 7.2(c) pursuant to a public
offering or private placement or otherwise, (2) the Borrower or any other Loan Party shall
make an Asset Sale pursuant to Section 7.6(i) or (3) a Recovery Event occurs, then, in each
case, if and to the extent the applicable Net Cash Proceeds are not required to be applied
to the payment of obligations of the Borrower or the other borrowers under the ABL Facility,
the Borrower shall prepay, in accordance with this Section 3.4(c), the Term Loans in an
amount equal to: (A) in the case of the incurrence of any such Indebtedness other than
Subordinated Indebtedness, 100% of the Net Cash Proceeds thereof, (B) in the case of the
incurrence of any such Indebtedness that is Subordinated Indebtedness, 50% of the Net Cash
Proceeds thereof; and (C) in the case of any such Asset Sale or Recovery Event, 100% of the
Net Cash Proceeds thereof, in each case minus any Reinvested Amounts, with such prepayment
to be made no later than the Business Day following the date of receipt of any such Net Cash
Proceeds except that, in the case of clause (C), if any such Net Cash Proceeds are eligible
to be reinvested in accordance with the definition of the term “Reinvested Amount” in
Section 1.1 and the Borrower has not elected to reinvest such proceeds (or portion thereof,
as the case may be), such prepayment to be made on the earlier of (x) the date on which the
certificate of a Responsible Officer of the Borrower to such effect is delivered to the
Administrative Agent in accordance with such definition and (y) the last day of the period
within which a certificate setting forth such election is required to be delivered in
accordance with such definition.




     (ii) On or before the date that is fifteen Business Days after the 90th day following
the end of each fiscal year of the Borrower ending on or after October 31, 2010 (each, an
“ECF Payment Date”), the Borrower shall, in accordance with Section 3.4(d) and
Section 3.4(e), apply toward the prepayment of the Term Loans an amount equal to (x) the ECF
Percentage of (i) the Borrower’s Excess Cash Flow for the immediately preceding fiscal year
minus (ii) the aggregate principal amount of Term Loans prepaid or repurchased pursuant to
Section 3.4(a) or Section 3.4(b) (in each case, other than any principal amount of Term
Loans so prepaid or repurchased that has previously been applied by the Borrower pursuant to
Section 3.4(c)(iii) to reduce the amount of any prepayment of Term Loans otherwise required
pursuant to Section 3.4(c)(iii)), and any



38









 







ABL Facility Loans prepaid to the extent accompanied by a corresponding permanent
commitment reduction under the ABL Facility, in each case during such fiscal year excluding
prepayments funded with proceeds from the incurrence of long-term Indebtedness, minus (y)
the aggregate principal amount of Term Loans prepaid or repurchased pursuant to Section
3.4(a) or Section 3.4(b) (in each case, other than any principal amount of Term Loans so
prepaid or repurchased that has previously been applied by the Borrower pursuant to Section
3.4(c)(iii) to reduce the amount of any prepayment of Term Loans otherwise required pursuant
to Section 3.4(c)(iii)), and any ABL Facility Loans prepaid to the extent accompanied by a
corresponding permanent commitment reduction under the ABL Facility, in each case since the
end of such fiscal year and on or prior to such ECF Payment Date, excluding prepayments
funded with proceeds from the incurrence of long-term Indebtedness (in the case of this
clause (y), without duplication of any amount thereof previously deducted in any calculation
pursuant to this Section 3.4(c) for any prior ECF Payment Date). For the avoidance of
doubt, for purposes of this Section 3.4(c), proceeds from the incurrence of long-term
Indebtedness shall not be deemed to include proceeds from the incurrence of Indebtedness
under the ABL Facility or any other revolving credit or working capital financing.




     (iii) On or before the date (each such date, a “Tax Refund Prepayment Date”) that is 45
calendar days after each Tax Refund Calculation Date, the Borrower shall, in accordance with
Section 3.4(d) and Section 3.4(e), prepay the Term Loans in an amount equal to the Tax
Refund Prepayment Amount (if greater than zero) with respect to such Tax Refund Calculation
Date. As used herein, the term “Tax Refund Prepayment Amount” with respect to any Tax
Refund Calculation Date means the amount equal to the excess of (1) the greater of (x) $10
million and (y) 50% of the aggregate amount of all 2009 Tax Refunds received by the Borrower
and its Subsidiaries from the date of this Agreement to such Tax Refund Calculation Date
over (2) the aggregate principal amount of Term Loans prepaid or repurchased pursuant to
Section 3.4(a) or Section 3.4(b) (in each case, other than any principal amount of Term
Loans so prepaid or repurchased that has previously been applied by the Borrower pursuant to
Section 3.4(c)(ii) to reduce the amount of any prepayment of Term Loans otherwise required
pursuant to Section 3.4(c)(ii)) or prepaid pursuant to this Section 3.4(c)(iii), in each
case from the date of this Agreement to the Tax Refund Prepayment Date corresponding to such
Tax Refund Calculation Date.




     (iv) Nothing in this paragraph (c) shall limit the rights of the Agents and the Lenders
set forth in Article VIII. Prepayments of Term Loans pursuant to this Section 3.4(c) shall
be applied to reduce the remaining amortization payments in forward order of maturity. No
prepayment of Term Loans pursuant to this Section 3.4(c) shall be in an amount greater than
the then outstanding balance of the Term Loans.



     (d) Amounts prepaid or deemed prepaid on account of Term Loans pursuant to Section 3.4(a),
3.4(b) and 3.4(c) may not be reborrowed.



     (e) Notwithstanding the foregoing provisions of this Section 3.4, if at any time any
prepayment of the Term Loans pursuant to Sections 3.4(a) or 3.4(c) would result, after giving



39









 




effect to the procedures set forth in this Agreement, in the Borrower incurring breakage costs
under Section 3.11 as a result of Eurocurrency Loans being prepaid other than on the last day of an
Interest Period with respect thereto, then, the Borrower may, so long as no Default or Event of
Default shall have occurred and be continuing, in its sole discretion, initially deposit a portion
(up to 100%) of the amounts that otherwise would have been paid in respect of such Eurocurrency
Loans with the Administrative Agent (which deposit must be equal in amount to the amount of such
Eurocurrency Loans not immediately prepaid), to be held as security for the obligations of the
Borrower to make such prepayment pursuant to a cash collateral agreement to be entered into on
terms reasonably satisfactory to the Administrative Agent with such cash collateral to be directly
applied upon the first occurrence thereafter of the last day of an Interest Period with respect to
such Eurocurrency Loans (or such earlier date or dates as shall be requested by the Borrower);
provided that, such unpaid Eurocurrency Loans shall continue to bear interest in accordance
with Section 3.1 until such unpaid Eurocurrency Loans or the related portion of such Eurocurrency
Loans have or has been prepaid.




     Section 3.5 Computation of Interest and Fees.



     (a) Interest (other than interest based on the Prime Rate) shall be calculated on the basis of
a 360-day year for the actual days elapsed; and commitment fees and interest based on the Prime
Rate shall be calculated on the basis of a 365- (or 366-day year, as the case may be) day year for
the actual days elapsed. The Administrative Agent shall as soon as practicable notify the Borrower
and the affected Lenders of each determination of a Eurocurrency Rate. Any change in the interest
rate on a Term Loan resulting from a change in the ABR or the Eurocurrency Reserve Requirements
shall become effective as of the opening of business on the day on which such change becomes
effective. The Administrative Agent shall as soon as practicable notify the Borrower and the
affected Lenders of the effective date and the amount of each such change in interest rate.



     (b) Each determination of an interest rate by the Administrative Agent pursuant to any
provision of this Agreement shall be conclusive and binding on the Borrower and the Lenders in the
absence of manifest error. The Administrative Agent shall, at the request of the Borrower or any
Lender, deliver to the Borrower or such Lender a statement showing in reasonable detail the
calculations used by the Administrative Agent in determining any interest rate pursuant to Section
3.1, excluding any Eurocurrency Base Rate which is based upon the Telerate British Bankers Assoc.
Interest Settlement Rates Page and any ABR Loan which is based upon the Prime Rate.



     Section 3.6 Inability to Determine Interest Rate.



     If prior to the first day of any Interest Period, the Administrative Agent shall have
determined (which determination shall be conclusive and binding upon the Borrower) that, by reason
of circumstances affecting the relevant market, adequate and reasonable means do not exist for
ascertaining the Eurocurrency Rate with respect to any Eurocurrency Loan (the “Affected
Rate”) for such Interest Period, the Administrative Agent shall give telecopy or telephonic
notice thereof to the Borrower and the Lenders as soon as practicable thereafter. If such notice
is given (a) any Eurocurrency Term Loans the rate of interest applicable to which is based on the
Affected Rate requested to be made on the first day of such Interest Period shall be



40









 




made as ABR Loans (to the extent otherwise permitted by Section 3.2) and (b) any Term Loans
that were to have been converted on the first day of such Interest Period to or continued as
Eurocurrency Loans the rate of interest applicable to which is based upon the Affected Rate shall
be converted to or continued as ABR Loans (to the extent otherwise permitted by Section 3.2).




     Section 3.7 Pro Rata Treatment and Payments.



     (a) Each payment (including each prepayment but excluding prepayments pursuant to Section 3.8
or Section 3.12(d) and purchases pursuant to Section 3.4(b)) by the Borrower on account of
principal of and interest on any Term Loans shall be allocated by the Administrative Agent pro rata
according to the respective outstanding principal amounts of the Term Loans then held by the
respective Lenders. All payments (including prepayments) to be made by the Borrower hereunder,
whether on account of principal, interest, fees, or otherwise, shall be made without set-off or
counterclaim and shall be made prior to 1:00 P.M., New York City time, on the due date thereof to
the Administrative Agent, for the account of the Lenders holding the relevant Term Loan, at the
Administrative Agent’s office specified in Section 10.2, in Dollars, in immediately available
funds. Payments received by the Administrative Agent after such time shall be deemed to have been
received on the next Business Day. The Administrative Agent shall distribute such payments to such
Lenders, if any such payment is received prior to 1:00 P.M., New York City time, on a Business Day,
in like funds as received prior to the end of such Business Day and otherwise the Administrative
Agent shall distribute such payment to such Lenders on the next succeeding Business Day. If any
payment hereunder (other than payments on the Eurocurrency Loans) becomes due and payable on a day
other than a Business Day, the maturity of such payment shall be extended to the next succeeding
Business Day, and, with respect to payments of principal, interest thereon shall be payable at the
then applicable rate during such extension. If any payment on a Eurocurrency Loan becomes due and
payable on a day other than a Business Day, the maturity of such payment shall be extended to the
next succeeding Business Day (and, with respect to payments of principal, interest thereon shall be
payable at the then applicable rate during such extension) unless the result of such extension
would be to extend such payment into another calendar month, in which event such payment shall be
made on the immediately preceding Business Day.



     (b) Unless the Administrative Agent shall have been notified in writing by any Lender prior to
a borrowing that such Lender will not make the amount that would constitute its share of such
borrowing available to such Agent, the Administrative Agent may assume that such Lender is making
such amount available to the Administrative Agent, and the Administrative Agent may, in reliance
upon such assumption, make available to the Borrower in respect of such borrowing a corresponding
amount. If such amount is not made available to the Administrative Agent by the required time on
the Borrowing Date therefor, such Lender shall pay to the Administrative Agent on demand, such
amount with interest thereon at a rate equal to the daily average Federal Funds Effective Rate as
quoted by the Administrative Agent for the period until such Lender makes such amount immediately
available to the Administrative Agent. A certificate of the Administrative Agent submitted to any
Lender with respect to any amounts owing under this Section shall be conclusive in the absence of
manifest error. If such Lender’s share of such borrowing is not made available to the
Administrative Agent by such Lender within three Business Days of such Borrowing Date, (x) the
Administrative Agent shall notify the Borrower of the failure of such Lender to make such amount
available to the Administrative



41









 




Agent and the Administrative Agent shall also be entitled to recover such amount with interest
thereon at the rate per annum applicable to ABR Loans hereunder on demand, from the Borrower and
(y) then the Borrower may, without waiving or limiting any rights or remedies it may have against
such Lender hereunder or under applicable law or otherwise, borrow a like amount on an unsecured
basis from any commercial bank for a period ending on the date upon which such Lender does in fact
make such borrowing available, provided that at the time such borrowing is made and at all
times while such amount is outstanding the Borrower would be permitted to borrow such amount
pursuant to Section 2.1.




     Section 3.8 Illegality.



     Notwithstanding any other provision herein, if the adoption of or any change in any
Requirement of Law or in the interpretation or application thereof occurring after the Closing Date
shall make it unlawful for any Lender to make or maintain any Eurocurrency Loans as contemplated by
this Agreement (“Affected Loans”), (a) such Lender shall promptly give written notice of
such circumstances to the Borrower and the Administrative Agent (which notice shall be withdrawn
whenever such circumstances no longer exist), (b) the commitment of such Lender hereunder to make
Affected Loans, continue Affected Loans as such and convert an ABR Loan to an Affected Loan shall
forthwith be cancelled and, until such time as it shall no longer be unlawful for such Lender to
make or maintain such Affected Loans, such Lender shall then have a commitment only to make an ABR
Loan when an Affected Loan is requested (to the extent otherwise permitted by Section 3.2), (c)
such Lender’s Term Loans then outstanding as Affected Loans, if any, shall be converted
automatically to ABR Loans on the respective last days of the then current Interest Periods with
respect to such Term Loans or within such earlier period as required by law (to the extent
otherwise permitted by Section 3.2) and (d) such Lender’s Term Loans then outstanding as Affected
Loans, if any, not otherwise permitted to be converted to ABR Loans by Section 3.2 shall, upon
notice to the Borrower, be prepaid with accrued interest thereon on the last day of the then
current Interest Period with respect thereto (or such earlier date as may be required by any such
Requirement of Law). If any such conversion or prepayment of an Affected Loan occurs on a day
which is not the last day of the then current Interest Period with respect thereto, the Borrower
shall pay to such Lender such amounts, if any, as may be required pursuant to Section 3.11.



     Section 3.9 Requirements of Law.



     (a) If the adoption of or any change in any Requirement of Law or in the interpretation or
application thereof applicable to any Lender, or compliance by any Lender with any request or
directive (whether or not having the force of law) from any central bank or other Governmental
Authority, in each case made subsequent to the Closing Date (or, if later, the date on which such
Lender becomes a Lender):




     (i) shall subject such Lender to any tax of any kind whatsoever with respect to any
Eurocurrency Loans made or maintained by it or its obligation to make or maintain
Eurocurrency Loans, or change the basis of taxation of payments to such Lender in respect
thereof in each case, except for Non-Excluded Taxes and Taxes measured by or imposed upon
the net income, or franchise Taxes, or Taxes measured by or imposed upon overall capital or
net worth, or branch Taxes (in the case of such capital, net worth or



42









 







branch taxes, imposed in lieu of such net income Tax), of such Lender or its applicable
lending office, branch, or any affiliate thereof;




     (ii) shall impose, modify or hold applicable any reserve, special deposit, compulsory
loan or similar requirement against assets held by, deposits or other liabilities in or for
the account of, advances, loans or other extensions of credit by, or any other acquisition
of funds by, any office of such Lender which is not otherwise included in the determination
of the Eurocurrency Rate hereunder; or




     (iii) shall impose on such Lender any other condition (excluding any Tax of any kind
whatsoever);


and the result of any of the foregoing is to increase the cost to such Lender, by an amount which
such Lender deems to be material, of making, converting into, continuing or maintaining
Eurocurrency Loans or to reduce any amount receivable hereunder in respect thereof, then, in any
such case, upon notice to the Borrower from such Lender, through the Administrative Agent, in
accordance herewith, the Borrower shall promptly pay such Lender, upon its demand, any additional
amounts necessary to compensate such Lender for such increased cost or reduced amount receivable
with respect to such Eurocurrency Loans, provided that, in any such case, the Borrower may
elect to convert the Eurocurrency Loans made by such Lender hereunder to ABR Loans (to the extent,
in the case of Eurocurrency Loans, such Eurocurrency Loans are denominated in Dollars and, in all
cases, to the extent such Loans are permitted by Section 3.2) by giving the Administrative Agent at
least one Business Day’s notice of such election, in which case the Borrower shall promptly pay to
such Lender, upon demand, without duplication, amounts theretofore required to be paid to such
Lender pursuant to this Section 3.9(a) and such amounts, if any, as may be required pursuant to
Section 3.11. If any Lender becomes entitled to claim any additional amounts pursuant to this
Section, it shall provide prompt notice thereof to the Borrower, through the Administrative Agent,
certifying (x) that one of the events described in this paragraph (a) has occurred and describing
in reasonable detail the nature of such event, (y) as to the increased cost or reduced amount
resulting from such event and (z) as to the additional amount demanded by such Lender and a
reasonably detailed explanation of the calculation thereof. Such a certificate as to any
additional amounts payable pursuant to this Section submitted by such Lender, through the
Administrative Agent, to the Borrower shall be conclusive in the absence of manifest error. This
covenant shall survive the termination of this Agreement and the payment of the Term Loans and all
other amounts payable hereunder.




     (b) If any Lender shall have determined that the adoption of or any change in any Requirement
of Law regarding capital adequacy or in the interpretation or application thereof or compliance by
such Lender or any corporation controlling such Lender with any request or directive regarding
capital adequacy (whether or not having the force of law) from any Governmental Authority, in each
case, made subsequent to the Closing Date, does or shall have the effect of reducing the rate of
return on such Lender’s or such corporation’s capital as a consequence of such Lender’s obligations
hereunder to a level below that which such Lender or such corporation could have achieved but for
such change or compliance (taking into consideration such Lender’s or such corporation’s policies
with respect to capital adequacy) by an amount deemed by such Lender to be material, then from time
to time, within ten Business Days after submission by such Lender to the Borrower (with a copy to
the Administrative Agent)



43









 




of a written request therefor certifying (x) that one of the events described in this
paragraph (b) has occurred and describing in reasonable detail the nature of such event, (y) as to
the reduction of the rate of return on capital resulting from such event and (z) as to the
additional amount or amounts demanded by such Lender or corporation and a reasonably detailed
explanation of the calculation thereof, the Borrower shall pay to such Lender such additional
amount or amounts as will compensate such Lender or corporation for such reduction. Such a
certificate as to any additional amounts payable pursuant to this Section submitted by such Lender,
through the Administrative Agent, to the Borrower shall be conclusive in the absence of manifest
error. This covenant shall survive the termination of this Agreement and the payment of the Term
Loans and all other amounts payable hereunder.




     (c) Notwithstanding anything to the contrary this Section 3.9, no Borrower shall be required
to pay any amount with respect to any additional cost or reduction specified in paragraph (a) or
paragraph (b) above, to the extent such additional cost or reduction is attributable, directly or
indirectly, to the application of, compliance with or implementation of specific capital adequacy
requirements or new methods of calculating capital adequacy, including any part or “pillar”
(including Pillar 2), of the International Convergence of Capital Measurement Standards: a Revised
Framework, published by the Basel Committee on Banking Supervision in June 2004, or any
implementation, adoption (whether voluntary or compulsory) thereof, whether by an EC Directive or
the FSA Integrated Prudential Sourcebook or any other law or regulation, or otherwise.



     Section 3.10 Taxes.



     (a) Except as provided below in this Section 3.10 or as required by law, all payments made by
the Borrower and the Administrative Agent under this Agreement and the Notes shall be made free and
clear of, and without deduction or withholding for or on account of, any Taxes; provided
that if any Non-Excluded Taxes are required to be withheld from any amounts payable by the
Administrative Agent or the Borrower to any Agent or any Lender under this Agreement or the Notes,
the amounts so payable by the Borrower shall be increased to the extent necessary to yield to such
Agent or Lender (after payment of all Non-Excluded Taxes) interest or any such other amounts
payable hereunder at the rates or in the amounts specified in this Agreement; provided,
however, that the Borrower shall be entitled to deduct and withhold, and shall not be
required to indemnify for, any Non-Excluded Taxes, and any amounts payable by the Borrower or any
Agent to, or for the account of, any Agent or any Lender shall not be increased (i) if such Agent
or Lender fails to comply with the requirements of paragraph (b) or (c) of this Section 3.10 or
Section 3.12 or (ii) with respect to any Non-Excluded Taxes (x) imposed in connection with the
payment of any fees under this Agreement or the Notes or (y) imposed by the United States or any
state or political subdivision thereof unless such Non-Excluded Taxes are imposed as a result of a
Change in Tax Law applicable to such Agent or Lender, as the case may be. Whenever any
Non-Excluded Taxes are payable by the Borrower, as promptly as possible thereafter the Borrower
shall send to the Administrative Agent for its own account or for the account of the applicable
Lender a certified copy of an original official receipt received by the Borrower showing payment
thereof. If the Borrower fails to pay any Non-Excluded Taxes when due to the appropriate taxing
authority or fails to remit to the Administrative Agent the required receipts or other required
documentary evidence, the Borrower shall indemnify the applicable



44









 




Agent or Lender for any incremental taxes, interest or penalties incurred by such Agent or
Lender as a result of any such failure.




     (b) Each Agent and each Lender that is a “United States person” (within the meaning of Section
7701(a)(30) of the Code) shall deliver to the Borrower and the Administrative Agent on or prior to
the Closing Date or, in the case of an Agent or Lender that is an assignee or transferee of an
interest under this Agreement pursuant to Section 10.6, on the date of such assignment or transfer
to such Agent or Lender, two accurate and complete original signed copies of Internal Revenue
Service Form W-9 (or successor form), in each case certifying that such Agent or Lender is a
“United States person” (within the meaning of Section 7701(a)(30) of the Code) and to such Agent’s
or Lender’s entitlement as of such date to a complete exemption from U.S. federal backup
withholding Tax with respect to payments to be made under this Agreement and under any Note. Each
Agent and each Lender that is not a “United States person” (within the meaning of Section
7701(a)(30) of the Code) shall deliver to the Borrower and the Administrative Agent on or prior to
the Closing Date or, in the case of an Agent or Lender that is an assignee or transferee of an
interest under this Agreement pursuant to Section 10.6, on the date of such assignment or transfer
to such Agent or Lender, (i) two accurate and complete original signed copies of Internal Revenue
Service Form W-8ECI or Form W-8BEN (claiming the benefits of an income tax treaty) (or successor
forms), in each case certifying to such Agent’s or Lender’s entitlement as of such date to a
complete exemption from U.S. federal withholding tax with respect to payments to be made under this
Agreement and under any Note, (ii) if such Agent or Lender is not a “bank” within the meaning of
Section 881(c)(3)(A) of the Code and cannot deliver either Internal Revenue Service Form W-8ECI or
Form W-8BEN (claiming the benefits of an income tax treaty) (or successor form) pursuant to clause
(i) above, (x) two certificates substantially in the form of Exhibit E (any such certificate, a
“U.S. Tax Compliance Certificate”) and (y) two accurate and complete original signed copies
of Internal Revenue Service Form W-8BEN (claiming the benefits of the portfolio interest exemption)
(or successor form) certifying to such Agent’s or Lender’s entitlement as of such date to a
complete exemption from U.S. federal withholding tax with respect to payments of interest to be
made under this Agreement and under any Note or (iii) if such Agent or Lender is a non-U.S.
intermediary or flow-through entity for U.S. federal income tax purposes, two accurate and complete
signed copies of Internal Revenue Service Form W-8IMY (and all necessary attachments, including to
the extent applicable, U.S. Tax Compliance Certificates) certifying to such Agent’s or Lender’s
entitlement as of such date to a complete exemption from U.S. federal withholding tax with respect
to payments to be made under this Agreement and under any Note. In addition, each Agent and Lender
agrees that from time to time after the Closing Date, when the passage of time or a change in
circumstances renders the previous certification obsolete or inaccurate, such Agent or Lender shall
deliver to the Borrower and the Administrative Agent two new accurate and complete original signed
copies of Internal Revenue Service Form W-9, Internal Revenue Service Form W-8ECI, Form W-8BEN
(claiming the benefits of an income tax treaty), or Form W-8BEN (claiming the benefits of the
portfolio interest exemption) and a U.S. Tax Compliance Certificate, or Form W-8IMY (with respect
to a non-U.S. intermediary or flow-through entity), as the case may be, and such other forms as may
be required in order to confirm or establish the entitlement of such Agent or Lender to a continued
exemption from U.S. withholding tax with respect to payments under this Agreement and any Note,
unless there has been a Change in Tax Law applicable to such Agent or Lender which renders all such
forms inapplicable or which would prevent such Agent or Lender from duly completing and delivering



45









 




any such form with respect to it, in which case such Agent or Lender shall promptly notify the
Borrower and the Administrative Agent of its inability to deliver any such form.




     (c) Each Agent and each Lender shall, upon request by the Borrower, deliver to the Borrower or
the applicable Governmental Authority, as the case may be, any form or certificate required in
order that any payment made under this Agreement or any Note to such Agent or Lender may be made
free and clear of, and without deduction or withholding for or on account of any Taxes (or to allow
any such deduction or withholding to be made at a reduced rate), provided that such Agent
or Lender is legally entitled to complete, execute and deliver such form or certificate. Each
Person that shall become a Lender or a Participant pursuant to Section 10.6 shall, upon the
effectiveness of the related transfer, be required to provide all of the forms, certifications and
statements pursuant to this Section 3.10, provided that in the case of a Participant the
obligations of such Participant pursuant to paragraph (b) or (c) of this Section 3.10 shall be
determined as if such Participant were a Lender except that such Participant shall furnish all such
required forms, certifications and statements to the Lender from which the related participation
shall have been purchased.



     (d) The provisions in this Section 3.10 shall survive the termination of this Agreement and
the payment of the Notes and all amounts payable hereunder.



     Section 3.11 Indemnity.



     The Borrower agrees to indemnify each Lender and to hold each such Lender harmless from any
loss or expense which such Lender may sustain or incur (other than through such Lender’s gross
negligence or willful misconduct) as a consequence of (a) default by the Borrower in making a
borrowing of, conversion into or continuation of Eurocurrency Loans after the Borrower has given a
notice requesting the same in accordance with the provisions of this Agreement, (b) default by the
Borrower in making any prepayment or conversion of Eurocurrency Loans after the Borrower has given
a notice thereof in accordance with the provisions of this Agreement or (c) the making of a payment
or prepayment of Eurocurrency Loans or the conversion of Eurocurrency Loans on a day which is not
the last day of an Interest Period with respect thereto. Such indemnification may include an
amount equal to the excess, if any, of (i) the amount of interest which would have accrued on the
amount so prepaid, or converted, or not so borrowed, converted or continued, for the period from
the date of such prepayment or conversion or of such failure to borrow, convert or continue to the
last day of the applicable Interest Period (or, in the case of a failure to borrow, convert or
continue, the Interest Period that would have commenced on the date of such failure) in each case
at the applicable rate of interest for such Eurocurrency Loans, as applicable, provided for herein
(excluding, however, the Applicable Margin included therein, if any) over (ii) the amount of
interest (as reasonably determined by such Lender) which would have accrued to such Lender on such
amount by placing such amount on deposit for a comparable period with leading banks in the
interbank eurocurrency market. If any Lender becomes entitled to claim any amounts under the
indemnity contained in this Section 3.11, it shall provide prompt notice thereof to the Borrower,
through the Administrative Agent, certifying (x) that one of the events described in clause (a),
(b) or (c) has occurred and describing in reasonable detail the nature of such event, (y) as to the
loss or expense sustained or incurred by such Lender as a consequence thereof and (z) as to the
amount for which such Lender seeks indemnification hereunder and a reasonably detailed explanation
of



46









 




the calculation thereof. Such a certificate as to any indemnification pursuant to this
Section submitted by such Lender, through the Administrative Agent, to the Borrower shall be
conclusive in the absence of manifest error. This covenant shall survive the termination of this
Agreement and the payment of the Term Loans and all other amounts payable hereunder.




     Section 3.12 Certain Rules Relating to the Payment of Additional Amounts.



     (a) Upon the request, and at the expense of the Borrower, each Lender to which the Borrower is
required to make a payment pursuant to Section 3.9 and Section 3.10, and any Participant in respect
of whose participation such payment is required, shall reasonably afford the Borrower the
opportunity to contest, and reasonably cooperate with the Borrower in contesting, the imposition of
any such Tax giving rise to such payment; provided that (i) such Lender shall not be
required to afford the Borrower the opportunity to so contest unless the Borrower shall have
confirmed in writing to such Lender its obligation to make such payment pursuant to this Agreement
and (ii) the Borrower shall reimburse such Lender for its reasonable attorneys’ and accountants’
fees and disbursements incurred in so cooperating with the Borrower in contesting the imposition of
such Tax; provided, however, that notwithstanding the foregoing no Lender shall be
required to afford the Borrower the opportunity to contest, or cooperate with the Borrower in
contesting, the imposition of any such Taxes, if such Lender in its sole discretion in good faith
determines that to do so would have an adverse effect on it.



     (b) If a Lender changes its applicable lending office (other than (i) pursuant to paragraph
(c) below or (ii) after an Event of Default under Sections 8.1(a) or 8.1(f) has occurred and is
continuing) and the effect of such change, as of the date of such change, would be to cause the
Borrower to become obligated to make any payment under Section 3.9 or Section 3.10, the Borrower
shall not be obligated to make such payment.



     (c) If a condition or an event occurs which would, or would upon the passage of time or giving
of notice, result in the payment of any amount to or on behalf of any Lender by the Borrower
pursuant to Section 3.9 or Section 3.10, such Lender shall promptly notify the Borrower and the
Administrative Agent and shall take such steps as may reasonably be available to it to mitigate the
effects of such condition or event (which shall include efforts to rebook the Term Loans held by
such Lender at another lending office, or through another branch or an affiliate, of such Lender);
provided that such Lender shall not be required to take any step that, in its reasonable
judgment, would be materially disadvantageous to its business or operations or would require it to
incur additional costs (unless the Borrower agrees to reimburse such Lender for the reasonable
incremental out-of-pocket costs thereof).



     (d) If the Borrower shall become obligated to make any payment under Section 3.9 or Section
3.10 and any affected Lender shall not have promptly taken steps necessary to avoid the need for
payments under Section 3.9 or Section 3.10, the Borrower shall have the right, for so long as such
obligation remains, (i) with the assistance of the Administrative Agent, to seek one or more
substitute Lenders reasonably satisfactory to the Administrative Agent and the Borrower to purchase
the affected Term Loan, in whole or in part, at an aggregate price no less than such Term Loan’s
principal amount plus accrued interest, and assume the affected obligations under this Agreement,
or (ii) so long as no Default or Event of Default then exists or will exist immediately after
giving effect to the respective prepayment, upon at least four Business Days’



47









 




irrevocable notice to the Administrative Agent, to prepay the affected Term Loan, in whole or
in part, subject to Section 3.11, without premium or penalty. In the case of the substitution of a
Lender, the Borrower, the Administrative Agent, the affected Lender, and any substitute Lender
shall execute and deliver an appropriately completed Assignment and Acceptance pursuant to Section
10.6(b) to effect the assignment of rights to, and the assumption of obligations by, the substitute
Lender; provided that any fees required to be paid by Section 10.6(b) in connection with
such assignment shall be paid by the Borrower or the substitute Lender. In connection with any
such substitution under this Section 3.12(d), if the affected Lender does not execute and deliver
to the Administrative Agent a duly completed Assignment and Acceptance and/or any other
documentation necessary to reflect such substitution within a period of time deemed reasonable by
the Administrative Agent after the later of (a) the date on which the substitute Lender executes
and delivers such Assignment and Acceptance and/or such other documentation and (b) the date as of
which all obligations of the Borrower owing to the affected Lender relating to the Term Loans and
participations so assigned shall be paid in full by the substitute Lender to such affected Lender,
then such affected Lender shall be deemed to have executed and delivered such Assignment and
Acceptance and/or such other documentation as of such date and the Borrower shall be entitled (but
not obligated) to execute and deliver such Assignment and Acceptance and/or such other
documentation on behalf of such affected Lender. In the case of a prepayment of an affected Term
Loan, the amount specified in the notice shall be due and payable on the date specified therein,
together with any accrued interest to such date on the amount prepaid. In the case of each of the
substitution of a Lender and of the prepayment of an affected Term Loan, the Borrower shall first
pay the affected Lender any additional amounts owing under Section 3.9 and Section 3.10 (as well as
any commitment fees and other amounts then due and owing to such Lender, including any amounts
under Section 3.11) prior to such substitution or prepayment.




     (e) If any Agent or any Lender receives a refund directly attributable to Taxes for which the
Borrower has made a payment under Section 3.9 or Section 3.10, such Agent or such Lender, as the
case may be, shall promptly pay such refund (together with any interest with respect thereto
received from the relevant taxing authority, but net of any reasonable cost incurred in connection
therewith) to the Borrower; provided, however, that the Borrower agrees promptly to
return such refund (together with any interest with respect thereto due to the relevant taxing
authority) (free of all Non-Excluded Taxes) to such Agent or the applicable Lender, as the case may
be, upon receipt of a notice that such refund is required to be repaid to the relevant taxing
authority.



     (f) The obligations of any Agent, Lender or Participant under this Section 3.12 shall survive
the termination of this Agreement and the payment of the Term Loans and all amounts payable
hereunder.



     Section 3.13 Further Actions On or Prior to Closing.



     (a) Effective as of the Closing Date, without further action by any party thereto, the
Original Security Agreement and other Original Security Documents and the Liens created thereby
shall terminate and be of no further force or effect. On the Closing Date, the Administrative
Agent and the Collateral Agent, as applicable, shall take all actions necessary or reasonably
requested by the Borrower to carry out and effectuate the release of all Original



48









 




Collateral from the Liens created thereby; all rights to the Original Collateral thereunder
shall revert to the Obligors (as defined in the Original Security Agreement) and the Administrative
Agent shall execute and deliver to the Obligors such documents (including UCC termination
statements) as such Obligors shall have reasonably requested to evidence such termination.




     (b) Subject to Section 6.10, on or prior to the Closing Date, the Administrative Agent and the
Borrower or its Subsidiaries shall amend and restate each of the Existing Mortgages listed on
Schedule 3.13(b) into substantially the form set forth in Exhibit C or as shall otherwise be
reasonably acceptable to the Borrower and the Administrative Agent.



     (c) Effective as of the Closing Date, (i) the Issuing Lender (as defined in the Original
Credit Agreement), hereby resigns as Issuing Lender under the Original Credit Agreement and shall
not be a party to this Agreement or any Loan Document in such capacity, (ii) with respect to each
outstanding Letter of Credit (as defined in the Original Credit Agreement) the Issuing Lender is no
longer the issuer of any such Letters of Credit in its capacity as Issuing Lender under the
Original Credit Agreement (but, for the avoidance of doubt, the Issuing Lender shall remain the
issuer of such Letters of Credit pursuant to the terms thereof and the Cash Collateral Agreement,
dated as of May 21, 2009 (the “Cash Collateral Agreement”), between the Borrower and the Issuing
Lender), (iii) each such Letter of Credit no longer constitutes an Obligation and (iv) no Lender
under this Agreement or the Original Credit Agreement shall have any liability with respect to such
Letters of Credit (but, for the avoidance of doubt, the Issuing Lender shall remain the issuer of
such Letters of Credit pursuant to the terms thereof and the Cash Collateral Agreement).



ARTICLE IV




REPRESENTATIONS AND WARRANTIES



     The Borrower hereby represents and warrants as of the Closing Date that:



     Section 4.1 Financial Condition.



     (a) (i) The audited consolidated balance sheets of the Borrower and its consolidated
Subsidiaries for the fiscal years ended October 29, 2006, October 28, 2007 and November 2, 2008 and
the related consolidated statements of income, shareholders’ equity and cash flows for the fiscal
years ended on such dates and (ii) the unaudited consolidated financial statements of the Borrower
and its Subsidiaries for the fiscal quarter period ending the most recent fiscal quarter for which
financial statements are available, together with the related consolidated statements of income or
operations, equity and cash flows for such fiscal quarter period ending on such date, in each case
were prepared in accordance with GAAP consistently applied throughout the period covered thereby,
except as otherwise expressly noted therein, and present fairly, in all material respects, the
consolidated financial condition as at such date, and the consolidated results of operations and
consolidated cash flows for the respective fiscal years then ended, of the Borrower and its
consolidated Subsidiaries.



     (b) The pro forma balance sheet and statements of operations of the Borrower and its
consolidated Subsidiaries, copies of which have heretofore been furnished to each Lender, are



49









 




the balance sheet and statements of operations of the Borrower and its consolidated
Subsidiaries as of August 2, 2009, adjusted to give effect (as if such events had occurred on such
date for purposes of the balance sheet and for the three fiscal quarter period ending August 2,
2009 for purposes of the statement of operations), to the initial borrowings and the other
transactions contemplated to occur on the Closing Date.




     (c) As of the Closing Date, no fact, event, change or circumstances shall have occurred since
the date of the Investment Agreement that has had or would be reasonably likely to have a Material
Adverse Effect; provided, however, that in determining whether a Material Adverse
Effect has occurred, there shall be excluded any effect to the extent resulting from the following:
(A) any change, development, occurrence or event affecting the businesses or industries in which
the Borrower and its Subsidiaries operate (including general pricing changes), (B) changes in
general domestic economic conditions, including changes in the financial, securities or credit
markets, or changes in such conditions in any area in which the Borrower or its Subsidiaries
operate, (C) changes in global or national political conditions (including any outbreak or
escalation of hostilities, declared or undeclared acts of war or terrorism), (D) the announcement
of this Agreement and the other Loan Documents, the Investment Agreement and the ABL Facility
Documents and the transactions contemplated hereby and thereby, (E) the failure of the Borrower to
meet any internal or published projections, forecasts or revenue or earning predictions for any
period (provided that the underlying causes of such failure may be considered in
determining whether there is a Material Adverse Effect on the Borrower) or (F) any change in the
trading prices of the Capital Stock on the New York Stock Exchange or of the Convertible Notes
(provided that the underlying causes of such change may be considered in determining whether there
is a Material Adverse Effect on the Borrower); except, with respect to clauses (A), (B), or (C), to
the extent that the effects of such changes have a disproportionate impact on the Borrower and its
Subsidiaries, taken as a whole, relative to other businesses supplying to the non-residential
construction industry.



     (d) As of the Closing Date, after giving effect to the consummation of the Transactions, the
Borrower is Solvent.



     Section 4.2 Existence; Compliance with Law.



     Each of the Loan Parties (a) is duly organized, validly existing and in good standing under
the laws of the jurisdiction of its incorporation or formation, (b) has the corporate or other
organizational power and authority, and the legal right, to own and operate its property, to lease
the property it operates as lessee and to conduct the business in which it is currently engaged,
except to the extent that the failure to have such legal right would not be reasonably expected to
have a Material Adverse Effect, (c) is duly qualified and in good standing under the laws of each
jurisdiction where its ownership, lease or operation of property or the conduct of its business
requires such qualification, other than in such jurisdictions where the failure to be so qualified
and in good standing would not be reasonably expected to have a Material Adverse Effect and (d) is
in compliance with all Requirements of Law, except to the extent that the failure to comply
therewith would not, in the aggregate, be reasonably expected to have a Material Adverse Effect.



50









 





     Section 4.3 Power; Authorization; Enforceable Obligations.



     Each Loan Party has the corporate or other organizational power and authority, and the legal
right, to make, deliver and perform the Loan Documents to which it is a party, and each such Loan
Party has taken all necessary corporate or other organizational action to authorize the execution,
delivery and performance of the Loan Documents to which it is a party on the terms and conditions
of this Agreement and any Notes. No consent or authorization of, filing with, notice to or other
similar act by or in respect of, any Governmental Authority or any other Person is required to be
obtained or made by or on behalf of any Loan Party in connection with the execution, delivery,
performance, validity or enforceability of the Loan Documents to which it is a party, except for
(a) consents, authorizations, notices and filings which have been obtained or made prior to the
Closing Date, (b) filings to perfect the Liens created by the Security Documents and (c) consents,
authorizations, notices and filings which the failure to obtain or make would not reasonably be
expected to have a Material Adverse Effect. This Agreement has been duly executed and delivered by
the Borrower, and each other Loan Document to which any Loan Party is a party will be duly executed
and delivered on behalf of such Loan Party. This Agreement constitutes a legal, valid and binding
obligation of the Borrower and each other Loan Document to which any Loan Party is a party when
executed and delivered will constitute a legal, valid and binding obligation of such Loan Party,
enforceable against such Loan Party in accordance with its terms, except as enforceability may be
limited by applicable domestic or foreign bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting the enforcement of creditors’ rights generally and by general equitable
principles (whether enforcement is sought by proceedings in equity or at law).



     Section 4.4 No Legal Bar.



     The execution, delivery and performance of the Loan Documents by any of the Loan Parties, the
Extensions of Credit hereunder and the use of the proceeds thereof (a) will not violate any
Requirement of Law or Contractual Obligation of such Loan Party in any respect that would
reasonably be expected to have a Material Adverse Effect and (b) will not result in, or require,
the creation or imposition of any Lien (other than the Liens permitted by Section 7.3) on any of
its properties or revenues pursuant to any such Requirement of Law or Contractual Obligation.



     Section 4.5 No Material Litigation.



     No litigation, investigation or proceeding of or before any arbitrator or Governmental
Authority is pending or, to the knowledge of the Borrower, threatened by or against the Borrower or
any of its Subsidiaries or against any of their respective properties or revenues, (a) except as
described on Schedule 4.5, which is so pending or threatened at any time on or prior to the Closing
Date and relates to any of the Loan Documents or any of the transactions contemplated thereby or
(b) which would be reasonably expected to have a Material Adverse Effect.



51









 





     Section 4.6 Ownership of Property; Liens.



     Each of the Borrower and its Subsidiaries has good title in fee simple to all its Mortgaged
Property, and good title to, or a valid leasehold interest in, all its other material property, and
none of such property is subject to any Lien, except for Liens permitted by Section 7.3.



     Section 4.7 Intellectual Property.



     The Borrower and each of its Subsidiaries owns, or has the legal right to use, all United
States and foreign patents, patent applications, trademarks, trademark applications, trade names,
copyrights, technology, know-how and processes necessary for each of them to conduct its business
as currently conducted (the “Intellectual Property”) except for those the failure to own or
have such legal right to use would not be reasonably expected to have a Material Adverse Effect.
Except as provided in Schedule 4.7, no claim has been asserted and is pending by any Person
challenging or questioning the use of any such Intellectual Property or the validity or
effectiveness of any such Intellectual Property, nor does the Borrower know of any such claim, and,
to the knowledge of the Borrower, the use of such Intellectual Property by the Borrower and its
Subsidiaries does not infringe on the rights of any Person, except for such claims and
infringements which in the aggregate, would not be reasonably expected to have a Material Adverse
Effect.



     Section 4.8 No Burdensome Restrictions.



     Neither the Borrower nor any of its Subsidiaries is in violation of any Requirement of Law or
Contractual Obligation of or applicable to the Borrower or any of its Subsidiaries that would be
reasonably expected to have a Material Adverse Effect.



     Section 4.9 Taxes.



     To the knowledge of the Borrower, each of the Borrower and its Subsidiaries has filed or
caused to be filed all United States federal income tax returns and all other material tax returns
that are required to be filed by it and has paid (a) all taxes shown to be due and payable on such
returns and (b) all taxes (other than taxes on real property) shown to be due and payable on any
assessments of which it has received notice made against it or any of its property and all other
taxes, fees or other charges imposed on it or any of its property by any Governmental Authority,
and no tax lien has been filed, and no claim is being asserted, with respect to any such tax, fee
or other charge (in each case under this Section 4.9, excluding any (i) taxes, fees or other
charges with respect to which the failure to pay, in the aggregate, would not have a Material
Adverse Effect and (ii) taxes, fees or other charges the amount or validity of which are currently
being contested in good faith by appropriate proceedings diligently conducted and with respect to
which reserves in conformity with GAAP have been provided on the books of the Borrower or any of
its Subsidiaries, as the case may be).



     Section 4.10 Federal Regulations.



     No part of the proceeds of any Extensions of Credit will be used for any purpose which
violates the provisions of the Regulations of the Board, including without limitation, Regulation
T, Regulation U or Regulation X of the Board. If requested by any Lender or the Administrative



52









 




Agent, the Borrower will furnish to the Administrative Agent and each Lender a statement to
the foregoing effect in conformity with the requirements of FR Form G-3 or FR Form U-1, referred to
in said Regulation U.




     Section 4.11 ERISA.



     During the five year period prior to each date as of which this representation is made, or
deemed made, with respect to any Plan (or, with respect to (f) or (h) below, as of the date such
representation is made or deemed made), none of the following events or conditions, either
individually or in the aggregate, has resulted or is reasonably likely to result in a Material
Adverse Effect: (a) a Reportable Event; (b) an “accumulated funding deficiency” (within the
meaning of Section 412 of the Code or Section 302 of ERISA); (c) any noncompliance with the
applicable provisions of ERISA or the Code; (d) a termination of a Single Employer Plan (other than
a standard termination pursuant to Section 4041(b) of ERISA); (e) a Lien on the property of the
Borrower or its Subsidiaries in favor of the PBGC or a Plan; (f) any Underfunding with respect to
any Single Employer Plan; (g) a complete or partial withdrawal from any Multiemployer Plan by the
Borrower or any Commonly Controlled Entity; (h) any liability of the Borrower or any Commonly
Controlled Entity under ERISA if the Borrower or any such Commonly Controlled Entity were to
withdraw completely from all Multiemployer Plans as of the annual valuation date most closely
preceding the date on which this representation is made or deemed made; (i) the Reorganization or
Insolvency of any Multiemployer Plan; or (j) any transactions that resulted or could reasonably be
expected to result in any liability to the Borrower or any Commonly Controlled Entity under Section
4069 of ERISA or Section 4212(c) of ERISA.



     Section 4.12 Collateral. Upon execution and delivery thereof by the parties thereto,
the Guarantee and Collateral Agreement and the Mortgages will be effective to create (to the extent
described therein) in favor of the Collateral Agent for the benefit of the Secured Parties, a
legal, valid and enforceable security interest in the Collateral described therein, except as may
be limited by applicable domestic or foreign bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws relating to or affecting creditors’ rights
generally, general equitable principles (whether considered in a proceeding in equity or at law)
and an implied covenant of good faith and fair dealing. When (a) the actions specified in Schedule
3 to the Guarantee and Collateral Agreement have been duly taken, (b) all applicable Instruments,
Chattel Paper and Documents (each as described therein) a security interest in which is perfected
by possession have been delivered to, and/or are in the continued possession of, the Collateral
Agent or the agent under the ABL Facility (to be held for the benefit of the Lenders and the
lenders under the ABL Facility pursuant to the terms of the Intercreditor Agreement), (c) all
Deposit Accounts, Electronic Chattel Paper and Pledged Stock (each as defined in the Guarantee and
Collateral Agreement) a security interest in which is required to be or is perfected by “control”
(as described in the UCC from time to time) are under the “control” of the Collateral Agent or the
Administrative Agent, as agent for the Collateral Agent and as directed by the Collateral Agent and
(d) the Mortgages have been duly recorded, the security interests granted pursuant thereto shall
constitute (to the extent described therein) a perfected security interest in all right, title and
interest of each pledgor or mortgagor (as applicable) party thereto in the Collateral described
therein (excluding Commercial Tort Claims, as defined in the Guarantee and Collateral Agreement,
other than such Commercial Tort Claims set forth on



53









 




Schedule 7 thereto (if any)) with respect to such pledgor or mortgagor (as applicable).
Notwithstanding any other provision of this Agreement, capitalized terms which are used in this
Section 4.12 and not defined in this Agreement are so used as defined in the applicable Security
Document. Notwithstanding the foregoing or any other provision of any Loan Document, it is
understood and agreed that the Collateral shall be “as is, where is,” and that such liens and
security interests in favor of the Collateral Agent for the benefit of the Lenders with respect
thereto shall be subject in all respects to all existing Liens, security interests, title
imperfections and defects, and other defects and impairments of any nature whatsoever.




     Section 4.13 Investment Company Act; Other Regulations.



     The Borrower is not an “investment company”, or a company “controlled” by an “investment
company”, within the meaning of the Investment Company Act. The Borrower is not subject to
regulation under any Federal or State statute or regulation (other than Regulation X of the Board)
which limits its ability to incur Indebtedness as contemplated hereby.



     Section 4.14 Subsidiaries.



     Schedule 4.14 sets forth all the Subsidiaries of the Borrower at the Closing Date, the
jurisdiction of their incorporation and the direct or indirect ownership interest of the Borrower
therein.



     Section 4.15 Environmental Matters.



     Other than as disclosed on Schedule 4.15 or exceptions to any of the following that would not,
individually or in the aggregate, reasonably be expected to give rise to a Material Adverse Effect:




     (i) The Borrower and its Subsidiaries: (i) are, and within the period of all
applicable statutes of limitation have been, in compliance with all applicable Environmental
Laws; (ii) hold all Environmental Permits (each of which is in full force and effect)
required for any of their current operations or for any property owned, leased, or otherwise
operated by any of them and reasonably expect to timely obtain without material expense all
such Environmental Permits required for planned operations; (iii) are, and within the period
of all applicable statutes of limitation have been, in compliance with all of their
Environmental Permits; and (iv) believe they will be able to maintain compliance with
Environmental Laws, including any reasonably foreseeable future requirements thereto.




     (ii) Materials of Environmental Concern have not been transported, disposed of,
emitted, discharged, or otherwise released or threatened to be released, to or at any real
property presently or formerly owned, leased or operated by the Borrower or any of its
Subsidiaries or at any other location, which would reasonably be expected to (i) give rise
to liability or other Environmental Costs of the Borrower or any of its Subsidiaries under
any applicable Environmental Law, or (ii) interfere with the Borrower’s planned or continued
operations, or (iii) impair the fair saleable value of any real property owned by the
Borrower or any of its Subsidiaries that is part of the Collateral.



54









 






     (iii) There is no judicial, administrative, or arbitral proceeding (including any
notice of violation or alleged violation) under any Environmental Law to which the Borrower
or any of its Subsidiaries is, or to the knowledge of the Borrower or any of its
Subsidiaries is reasonably likely to be, named as a party that is pending or, to the
knowledge of the Borrower or any of its Subsidiaries, threatened.




     (iv) Neither the Borrower nor any of its Subsidiaries has received any written request
for information, or been notified that it is a potentially responsible party, under the
federal Comprehensive Environmental Response, Compensation, and Liability Act or any similar
Environmental Law, or received any other written request for information from any
Governmental Authority with respect to any Materials of Environmental Concern.




     (v) Neither the Borrower nor any of its Subsidiaries has entered into or agreed to any
consent decree, order, or settlement or other agreement, nor is subject to any judgment,
decree, or order or other agreement, in any judicial, administrative, arbitral, or other
forum, relating to compliance with or liability under any Environmental Law.



     Section 4.16 No Material Misstatements.



     The written information, reports, financial statements, exhibits and schedules furnished by or
on behalf of the Borrower to the Administrative Agent and the Lenders in connection with the
negotiation of any Loan Document or included therein or delivered pursuant thereto, taken as a
whole, did not contain as of the Closing Date any material misstatement of fact and did not omit to
state as of the Closing Date any material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not materially misleading in their
presentation of the Borrower and its Subsidiaries taken as a whole. It is understood that (a) no
representation or warranty is made concerning the forecasts, estimates, pro forma information,
projections and statements as to anticipated future performance or conditions, and the assumptions
on which they were based, contained in any such information, reports, financial statements,
exhibits or schedules, except that as of the date such forecasts, estimates, pro forma information,
projections and statements were generated, (i) such forecasts, estimates, pro forma information,
projections and statements were based on the good faith assumptions of the management of the
Borrower and (ii) such assumptions were believed by such management to be reasonable and (b) such
forecasts, estimates, pro forma information and statements, and the assumptions on which they were
based, may or may not prove to be correct.



     Section 4.17 Labor Matters.



     There are no strikes pending or, to the knowledge of the Borrower, reasonably expected to be
commenced against the Borrower or any of its Subsidiaries which, individually or in the aggregate,
would reasonably be expected to have a Material Adverse Effect. The hours worked and payments made
to employees of the Borrower and each of its Subsidiaries have not been in violation of any
applicable laws, rules or regulations, except where such violations would not reasonably be
expected to have a Material Adverse Effect.



55









 





     Section 4.18 Insurance.



     Schedule 4.18 sets forth a complete and correct listing of all insurance that is (a)
maintained by the Loan Parties and (b) material to the business and operations of the Borrower and
its Subsidiaries taken as a whole with the amounts insured (and any deductibles) set forth therein.



     Section 4.19 Anti-Terrorism.



     As of the Closing Date, the Borrower and its Subsidiaries are in compliance with the Uniting
and Strengthening of America by Providing the Appropriate Tools Required to Intercept and Obstruct
Terrorism Act of 2001, except as would not reasonably be expected to have a Material Adverse
Effect.



ARTICLE V




CONDITIONS PRECEDENT



     Section 5.1 Conditions to Effectiveness of this Agreement.



     This Agreement shall become effective on the date on which the following conditions precedent
shall have been satisfied or waived (the “Closing Date”):



     (a) Loan Documents



     The Administrative Agent shall have received the following Loan Documents, executed and
delivered as required below, with, in the case of clause (i), a copy for each Lender:




     (i) this Agreement, executed and delivered by a duly authorized officer of the
Borrower;




     (ii) the Guarantee and Collateral Agreement, executed and delivered by a duly
authorized officer of the Borrower and each material Wholly Owned Domestic Subsidiary; and




     (iii) the Intercreditor Agreement, executed and delivered by a duly authorized officer
of each party thereto.



     (b) Transactions



     The following collectively are referred to herein as the “Transactions”:




     (i) The Administrative Agent shall receive, substantially concurrently with the
satisfaction of the other conditions precedent set forth in this Section 5.1, evidence
reasonably satisfactory to it, that the Borrower shall have received gross cash proceeds
from the issuance of shares of Preferred Stock in accordance with the terms and conditions
of the Investment Agreement;



56









 






     (ii) The Administrative Agent shall receive, substantially concurrently with the
satisfaction of the other conditions precedent set forth in this Section 5.1, evidence
reasonably satisfactory to it that the Borrower shall have obtained the ABL Facility with
not less than $125,000,000 of commitments thereunder as of the Closing Date;




     (iii) The Lenders shall receive, substantially currently with the satisfaction of the
other conditions precedent set forth in this Section 5.1, prepayment of no less than, in the
aggregate, approximately $143,000,000 principal amount of the Term Loans outstanding under
the Original Credit Agreement, together with all accrued and unpaid interest thereon (the
“Term Loan Prepayment”);




     (iv) The Administrative Agent shall receive, substantially concurrently with the
satisfaction of the other conditions precedent set forth in this Section 5.1, evidence
reasonably satisfactory to it, that the Borrower shall have accepted for redemption the
tender of Convertible Notes in principal amount of not less than $171,000,000; and




     (v) On the Closing Date, the Administrative Agent shall have received complete and
correct copies of the ABL Facility Agreement and the Investment Agreement, certified as such
by an appropriate officer of the Borrower.



     (c) After giving effect to the consummation of the Investment, the Borrower and its
Subsidiaries shall have no outstanding Indebtedness held by third parties, except for Indebtedness
under the Facility and any Assumed Indebtedness. All material terms and conditions of any
Unscheduled Assumed Indebtedness shall be reasonably satisfactory to the Required Lenders. Any
other existing Indebtedness, other than any such Unscheduled Assumed Indebtedness, shall have been
repaid, defeased or otherwise discharged substantially concurrently with or prior to the
satisfaction of the other conditions precedent set forth in this Section 5.1.



     (d) The Lenders shall have received (i) annual projections of the operating budget and cash
flow budget (including related consolidated balance sheets, income statements and statements of
cash flows) of the Borrower and its Subsidiaries prepared on a quarterly basis though the first
four complete fiscal quarters after the Closing Date and thereafter on an annual basis through the
fiscal year ended 2013 and (ii) an opening pro forma balance sheet for the Borrower and its
Subsidiaries as of the last day of the most recent fiscal quarter for which financial statements
are available adjusted to give effect to the Transactions and the other transactions related
thereto.



     (e) The applicable waiting periods specified under Hart-Scott-Rodino Antitrust Improvements
Act of 1976, as amended, with respect to the transactions contemplated by the Investment Agreement
shall have lapsed or been terminated and all other consents or approvals from the boards of
directors, shareholders and other corporate governing bodies, applicable third parties and any
other Governmental Authority required to consummate the Transactions, the failure of which to
obtain would have a material adverse effect on the business, condition (financial or otherwise) or
results of operations of the Borrower and its Subsidiaries, taken as a whole, shall have been
obtained. At the Closing Date, there shall be no law, regulation, injunction, restraining order or
decree of any Governmental Authority that is in effect that



57









 




restrains or prohibits, or imposes materially adverse conditions upon, the consummation of the
transactions contemplated by this Agreement or any of the other Transactions.




          (f) The Administrative Agent shall have received the following executed legal opinions:




          (i) the executed legal opinion of Debevoise & Plimpton LLP, special New York counsel to
CD&R Associates VIII, Ltd.;




          (ii) the executed legal opinion of Richards, Layton & Finger, P.A., special Delaware counsel
to certain of the Loan Parties; and




          (iii) the executed legal opinion of Holland & Hart LLP, special Nevada counsel to certain of
the Loan Parties.




     (g) The Administrative Agent shall have obtained a valid, perfected security interest in the
Collateral (to the extent provided in the Loan Documents); and all documents, instruments, filings,
recordations and searches (consisting solely of Mortgages, surveys, appraisals and flood hazard
certificates and related opinions of local counsel in the case of the Mortgaged Property of the
Loan Parties that constitutes Collateral) reasonably necessary in connection with the perfection
and, in the case of the filings with the U.S. Patent and Trademark Office and the U.S. Copyright
Office, protection of such security interests shall have been executed and delivered or made or, in
the case any UCC filings, written authorization to make such UCC filings shall have been delivered
to the Administrative Agent; provided that with respect to any such Collateral the security
interest in which may not be perfected by possession or the filing of a UCC financing statement or
(in the case of foreign collateral) by making a similar filing in a foreign jurisdiction or by
making a filing with the U. S. Patent and Trademark Office or the U. S. Copyright Office, if
perfection of the Administrative Agent’s security interest in such Collateral may not be
accomplished on the Closing Date using commercially reasonable efforts, then delivery of documents
and instruments for perfection of such security interest shall not constitute a condition precedent
to the Closing Date, and Section 6.10 shall govern the delivery thereof after the Closing Date.
Notwithstanding the foregoing, it is understand and agreed that the Collateral shall be “as is,
where is,” and that such liens and security interests in favor of the Collateral Agent for the
benefit of the Lenders with respect thereto shall be subject in all respects to all existing Liens,
security interests, title imperfections and defects, and other defects and impairments of any
nature whatsoever. The delivery requirements set forth in this Section 5.1(g) shall be a delivery
requirement only and not a requirement with respect to condition or value.



     (h) The Collateral Agent or the ABL Collateral Agent (as defined in the Guarantee and
Collateral Agreement) or any other agent as may be provided for in the Intercreditor Agreement
shall have received the certificates, if any, representing the Pledged Stock under (and as defined
in) the Guarantee and Collateral Agreement, together with an undated stock power for each such
certificate executed in blank by a duly authorized officer of the pledgor thereof.



     (i) The Collateral Agent shall have received in respect of each of the Mortgaged Properties an
irrevocable written commitment to issue a mortgagee’s title policy (or policies) or marked up
unconditional binder for such insurance dated the Closing Date. Each such policy



58









 




shall (i) be in the amount set forth with respect to such policy in Schedule 5.1(i); (ii)
insure that the amended and restated Existing Mortgage creates a valid Lien on the Mortgaged
Property; (iii) name the Collateral Agent for the benefit of the Lenders as the insured thereunder;
(iv) be in the form of an ALTA Loan Policy or the applicable state equivalent; and (v) be issued by
Stewart Title Guaranty Company or any other title companies reasonably satisfactory to the
Collateral Agent (with any other reasonably satisfactory title companies acting as co-insurers or
reinsurers, at the option of the Borrower). The Collateral Agent shall have received evidence
reasonably satisfactory to it that all premiums in respect of each such policy, and all charges for
mortgage recording tax, if any, have been paid or other reasonably satisfactory arrangements have
been made. The Collateral Agent shall have also received a copy of all recorded documents referred
to, or listed as exceptions to title in, the title policy or policies referred to in this Section
and a copy, certified by such parties as the Collateral Agent may deem reasonably appropriate, of
all other documents affecting the Mortgaged Properties, each only to the extent reasonably
requested by the Collateral Agent. The delivery requirements set forth in this Section 5.1(i)
shall be a delivery requirement only and not a requirement with respect to condition or value;
provided that if delivery of the foregoing items may not be accomplished on the Closing
Date using commercially reasonable efforts, then delivery of the foregoing items shall not
constitute a condition precedent to the Closing Date, and Section 6.10 shall govern the delivery
thereof after the Closing Date.




     (j) The Agents, the Lenders and Wachovia Capital Markets, LLC or Wells Fargo Securities, LLC,
as its successor, shall have received all fees and expenses required to be paid or delivered by the
Borrower to them on or prior to the Closing Date.



     (k) The Administrative Agent shall have received a copy of the resolutions, in form and
substance reasonably satisfactory to the Administrative Agent, of the board of directors of each
Loan Party authorizing, as applicable, (i) the execution, delivery and performance of this
Agreement, any Notes and the other Loan Documents to which it is or will be a party as of the
Closing Date, and (ii) the granting by it of the Liens to be created pursuant to the Security
Documents to which it will be a party as of the Closing Date, certified by the Secretary or an
Assistant Secretary of such Loan Party as of the Closing Date, which certificate shall be in form
and substance reasonably satisfactory to the Administrative Agent and shall state that the
resolutions thereby certified have not been amended, modified (except as any later such resolution
may modify any earlier such resolution), revoked or rescinded and are in full force and effect.



     (l) The Administrative Agent shall have received a certificate of each Loan Party, dated the
Closing Date, as to the incumbency and signature of the officers of such Loan Party executing any
Loan Document, reasonably satisfactory in form and substance to the Administrative Agent executed
by a Responsible Officer and the Secretary or any Assistant Secretary of such Loan Party.



     (m) The Administrative Agent shall have received copies of the certificate or articles of
incorporation and by-laws (or other similar governing documents serving the same purpose) of each
Loan Party, certified as of the Closing Date as complete and correct copies thereof by the
Secretary or an Assistant Secretary of such Loan Party with accompanying good standing



59









 




certificates issued by the secretary of the state of incorporation or organization of each
Loan Party.




     (n) The Borrower shall have used reasonable best efforts to ensure that the Administrative
Agent shall have received evidence in form and substance reasonably satisfactory to it that all of
the requirements of Section 6.5 of this Agreement and Section 5.2.2 of the Guarantee and Collateral
Agreement shall have been satisfied. The Borrower shall have caused the Administrative Agent and
the other Secured Parties to have been named as additional insureds with respect to liability
policies and the Collateral Agent to have been named as loss payee with respect to the casualty
insurance maintained by the Borrower and the Guarantors.



     (o) No fact, event, change or circumstances shall have occurred since the date of the
Investment Agreement that has had or would be reasonably likely to have a Material Adverse Effect;
provided, however, that in determining whether a Material Adverse Effect has
occurred, there shall be excluded any effect to the extent resulting from the following: (A) any
change, development, occurrence or event affecting the businesses or industries in which the
Borrower and its Subsidiaries operate (including general pricing changes), (B) changes in general
domestic economic conditions, including changes in the financial, securities or credit markets, or
changes in such conditions in any area in which the Borrower or its Subsidiaries operate, (C)
changes in global or national political conditions (including any outbreak or escalation of
hostilities, declared or undeclared acts of war or terrorism), (D) the announcement of this
Agreement and the other Loan Documents, the Investment Agreement and the ABL Facility Documents and
the transactions contemplated hereby and thereby, (E) the failure of the Borrower to meet any
internal or published projections, forecasts or revenue or earning predictions for any period
(provided that the underlying causes of such failure may be considered in determining
whether there is a Material Adverse Effect on the Borrower) or (F) any change in the trading prices
of the Capital Stock on the New York Stock Exchange or of the Convertible Notes (provided that the
underlying causes of such change may be considered in determining whether there is a Material
Adverse Effect on the Borrower); except, with respect to clauses (A), (B), or (C), to the extent
that the effects of such changes have a disproportionate impact on the Borrower and its
Subsidiaries, taken as a whole, relative to other businesses supplying to the non-residential
construction industry.



     (p) There shall not exist (pro forma for the Transactions) any Default or Event of Default
under this Agreement after giving effect to the effectiveness hereof on the Closing Date;
provided that any Default or Event of Default that would otherwise result from the failure
to provide any guarantee or collateral on the Closing Date after the use of commercially reasonable
efforts by the Borrower or any of its Subsidiaries to do so shall in each case not constitute a
Default or Event of Default for purposes of this Agreement.



     (q) The Borrower shall have used its reasonable best efforts to have the Facility rated by
Standard & Poor’s and Moody’s.



     (r) There shall be no bankruptcy or insolvency proceeding pending with respect to the Borrower
or its Subsidiaries, and there shall be no material litigation pending or to the knowledge of the
Borrower threatened that would reasonably be expected to have a Material Adverse Effect.



60









 





     (s) The Administrative Agent shall have received a certificate of the chief financial officer
of the Borrower certifying the Solvency of the Borrower in customary form reasonably satisfactory
to the Administrative Agent.



     (t) All representations and warranties made by any Loan Party pursuant to this Agreement or
any other Loan Document to which it is a party shall be true and correct in all material respects
on and as of the date of the Equity Investment (although any representations and warranties which
expressly relate to a given date or period shall be required only to be true and correct in all
material respects as of the respective date or for the respective period, as the case may be),
before and after giving effect to the application of the proceeds therefrom, as though made on and
as of such date.



     The receipt and acceptance of the Term Loan Prepayment by the Lenders hereunder shall
conclusively be deemed to constitute an acknowledgement by the Administrative Agent and each Lender
that each of the conditions precedent set forth in this Section 5.1 shall have been satisfied in
accordance with its respective terms or shall have been irrevocably waived by such Person.



     Section 5.2 Conditions to Each Future Extension of Credit.



     The agreement of each Lender or Additional Committing Lender to make any Extension of Credit
requested to be made by it on any date after the Closing Date is subject to the satisfaction or
waiver of the following conditions precedent:




     (a) Representations and Warranties. Each of the representations and warranties
made by any Loan Party pursuant to this Agreement or any other Loan Document (or in any
amendment, modification or supplement hereto or thereto) to which it is a party, and each of
the representations and warranties contained in any certificate furnished at any time by or
on behalf of any Loan Party pursuant to this Agreement or any other Loan Document shall,
except to the extent that they relate to a particular date, be true and correct in all
material respects on and as of such date as if made on and as of such date.




     (b) No Default. No Default or Event of Default shall have occurred and be
continuing on such date after giving effect to the Extensions of Credit requested to be made
on such date.




     (c) Borrowing Notice. With respect to any Borrowing, the Administrative Agent
shall have received a notice of such Borrowing (which notice must be received by the
Administrative Agent prior to 12:30 P.M., New York City time) at least three Business Days
prior to the date of Borrowing (such date, the “Borrowing Date”) specifying the
amount to be borrowed.



     Each borrowing of Term Loans by the Borrower hereunder shall constitute a representation and
warranty by the Borrower as of the date of such borrowing or such issuance that the conditions
contained in this Section 5.2 have been satisfied.



61









 





ARTICLE VI




AFFIRMATIVE COVENANTS



     The Borrower hereby agrees that, from and after the Closing Date and thereafter until payment
in full of the Term Loans and any other amount then due and owing to any Lender or any Agent
hereunder and under any Note, the Borrower shall and (except in the case of delivery of financial
information, reports and notices) shall cause each of its Subsidiaries to:



     Section 6.1 Financial Statements.



     Furnish to the Administrative Agent for delivery to each Lender (and the Administrative Agent
agrees to make and so deliver such copies):




     (a) as soon as available, but in any event not later than the fifth Business Day after
the 90th day following the end of each fiscal year of the Borrower, a copy of the
consolidated balance sheet of the Borrower and its consolidated Subsidiaries as at the end
of such year and the related consolidated statements of operations, changes in common
stockholders’ equity and cash flows for such year, setting forth in each case, in
comparative form the figures for and as of the end of the previous year, reported on without
a “going concern” or like qualification or exception, or qualification arising out of the
scope of the audit, by Ernst & Young LLP or other independent certified public accountants
of nationally recognized standing not unacceptable to the Administrative Agent in its
reasonable judgment (it being agreed that the furnishing of the Borrower’s annual report on
Form 10-K for such year, as filed with the Securities and Exchange Commission, will satisfy
the Borrower’s obligation under this Section 6.1(a) with respect to such year except with
respect to the requirement that such financial statements be reported on without a “going
concern” or like qualification or exception, or qualification arising out of the scope of
the audit);




     (b) as soon as available, but in any event not later than the fifth Business Day after
the 45th day following the end of each of the first three quarterly periods of each fiscal
year of the Borrower, the unaudited consolidated balance sheet of the Borrower and its
consolidated Subsidiaries as at the end of such quarter and the related unaudited
consolidated statements of operations and cash flows of the Borrower and its consolidated
Subsidiaries for such quarter and the portion of the fiscal year through the end of such
quarter, setting forth in each case, in comparative form the figures for and as of the
corresponding periods of the previous year, certified by a Responsible Officer of the
Borrower as being fairly stated in all material respects (subject to normal year-end audit
and other adjustments) (it being agreed that the furnishing of the Borrower’s quarterly
report on Form 10-Q for such quarter, as filed with the Securities and Exchange Commission,
will satisfy the Borrower’s obligations under this Section 6.1(b) with respect to such
quarter); and




     (c) all such financial statements delivered pursuant to Sections 6.1(a) and 6.1(b) to
be (and, in the case of any financial statements delivered pursuant to Section 6.1(b) shall
be certified by a Responsible Officer of the Borrower as being) complete and



62









 







correct in all material respects in conformity with GAAP and to be (and, in the case of
any financial statements delivered pursuant to Section 6.1(b) shall be certified by a
Responsible Officer of the Borrower as being) prepared in reasonable detail in accordance
with GAAP applied consistently throughout the periods reflected therein and with prior
periods that began on or after the Closing Date (except as approved by such accountants or
officer, as the case may be, and disclosed therein, and except, in the case of any financial
statements delivered pursuant to Section 6.1(b), for the absence of certain notes).



     Section 6.2 Certificates; Other Information.



     Furnish to the Administrative Agent for delivery to each Lender (and the Administrative Agent
agrees to make and so deliver such copies):




     (a) concurrently with the delivery of the financial statements referred to in Section
6.1(a), a certificate or report of the independent certified public accountants reporting on
such financial statements stating that in making the audit necessary therefor no knowledge
was obtained of any Default or Event of Default insofar as the same relates to the covenant
set forth in Section 7.1(a) to the extent such covenant is then applicable, except as
specified in such certificate or report (which certificate or report may be limited in
accordance with accounting rules or guidelines);




     (b) concurrently with the delivery of the financial statements and reports referred to
in Sections 6.1(a) and 6.1(b), a certificate signed by a Responsible Officer of the Borrower
(i) stating that, to the best of such Responsible Officer’s knowledge, each of the Borrower
and its respective Subsidiaries during such period has observed or performed all of its
covenants and other agreements, and satisfied every condition, contained in this Agreement
or the other Loan Documents to which it is a party to be observed, performed or satisfied by
it, and that such Responsible Officer has obtained no knowledge of any Default or Event of
Default, except, in each case, as specified in such certificate, and (ii) setting forth the
calculations required to determine compliance with the covenant set forth in Section 7.1(a)
to the extent each covenant is then applicable (in the case of a certificate furnished with
the financial statements referred to in Section 6.1(a) and Section 6.1(b));




     (c) within five Business Days after the same are sent, copies of all financial
statements and reports which the Borrower sends to its public security holders, and within
five Business Days after the same are filed, copies of all financial statements and periodic
reports which the Borrower may file with the Securities and Exchange Commission or any
successor or analogous Governmental Authority;




     (d) within five Business Days after the same are filed, copies of all registration
statements and any amendments and exhibits thereto, which the Borrower may file with the
Securities and Exchange Commission or any successor or analogous Governmental Authority, and
such other documents or instruments as may be reasonably requested by the Administrative
Agent in connection therewith; and



63









 






     (e) promptly, such additional financial and other information as any Agent or Lender
may from time to time reasonably request.



     Section 6.3 Payment of Obligations.



     Pay, discharge or otherwise satisfy at or before maturity or before they become delinquent, as
the case may be, all its material obligations of whatever nature (other than those relating to the
Mortgaged Properties), including taxes, except where the amount or validity thereof is currently
being contested in good faith by appropriate proceedings diligently conducted and reserves in
conformity with GAAP with respect thereto have been provided on the books of the Borrower or any of
its Subsidiaries, as the case may be, and except to the extent that failure to do so, in the
aggregate, would not reasonably be expected to have a Material Adverse Effect.



     Section 6.4 Conduct of Business and Maintenance of Existence.



     Continue to engage in business of the same general type as conducted by the Borrower and its
Subsidiaries on the Closing Date or that is reasonably related thereto, taken as a whole, and
preserve, renew and keep in full force and effect its corporate or other organizational existence
and take all reasonable action to maintain all rights, privileges and franchises necessary or
desirable in the normal conduct of the business of the Borrower and its Subsidiaries, taken as a
whole, except as otherwise expressly permitted pursuant to Section 7.5, provided that the
Borrower and its Subsidiaries shall not be required to maintain any such rights, privileges or
franchises, if the failure to do so would not reasonably be expected to have a Material Adverse
Effect; and comply with all Requirements of Law except to the extent that failure to comply
therewith, in the aggregate, would not reasonably be expected to have a Material Adverse Effect.



     Section 6.5 Maintenance of Property; Insurance.



     (a) Keep all property useful and necessary in the business of the Borrower and its
Subsidiaries, taken as a whole, in good working order and condition; maintain with financially
sound and reputable insurance companies insurance on all property material to the business of the
Borrower and its Subsidiaries, taken as a whole, in at least such amounts and against at least such
risks (but including in any event public liability, product liability and business interruption) as
are consistent with the past practices of the Borrower and its Subsidiaries and otherwise as are
usually insured against in the same general area by companies engaged in the same or a similar
business; furnish to the Administrative Agent, upon written request, information in reasonable
detail as to the insurance carried; and ensure that at all times that, subject to the Intercreditor
Agreement, the Administrative Agent and the other Secured Parties shall be named as additional
insureds with respect to liability policies and the Collateral Agent shall be named as loss payee
with respect to the casualty insurance maintained by the Borrower and the Guarantors;
provided that, unless an Event of Default shall have occurred and be continuing, the
Collateral Agent shall turn over to the Borrower any amounts received by it as loss payee under any
casualty insurance maintained by the Borrower or its Subsidiaries, the disposition of such amounts
to be subject to the provisions of Section 3.4(c), and, unless an Event of Default shall have
occurred and be continuing, the Collateral Agent agrees that the Borrower and/or the applicable
Guarantor shall have the sole right to adjust or settle any claims under such insurance.



64









 





     (b) With respect to each property of the Borrower and its Subsidiaries subject to a Mortgage:




     (i) If any portion of any such property is located in an area identified as a special
flood hazard area by the Federal Emergency Management Agency or other applicable agency, the
Borrower shall maintain or cause to be maintained, flood insurance to the extent required by
law.




     (ii) The Borrower and each of its applicable Subsidiaries promptly shall comply with
and conform to (i) all provisions of each such insurance policy, and (ii) all requirements
of the insurers applicable to such party or to such property or to the use, manner of use,
occupancy, possession, operation, maintenance, alteration or repair of such property, except
for such non-compliance or non-conformity as would not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect. The Borrower shall not use or
permit the use of such property in any manner which would reasonably be expected to result
in the cancellation of any insurance policy or would reasonably be expected to void coverage
required to be maintained with respect to such property pursuant to Section 6.5(a).




     (iii) If the Borrower is in default of its obligations to insure or deliver any such
prepaid policy or policies, the result of which would reasonably be expected to have a
Material Adverse Effect, then the Administrative Agent, at its option upon 10 days’ written
notice to the Borrower, may effect such insurance from year to year at rates substantially
similar to the rate at which the Borrower or any Subsidiary had insured such property, and
pay the premium or premiums therefore, and the Borrower shall pay to the Administrative
Agent on demand such premium or premiums so paid by the Administrative Agent with interest
from the time of payment at a rate per annum equal to 2.00%.




     (iv) If such property, or any part thereof, shall be destroyed or damaged and the
reasonably estimated cost thereof would exceed $5,000,000, the Borrower shall give prompt
notice thereof to the Administrative Agent. All insurance proceeds paid or payable in
connection with any damage or casualty to any property shall be applied in the manner
specified in Section 6.5(a).



     Section 6.6 Inspection of Property; Books and Records; Discussions.



     Keep proper books of records and account in which full, complete and correct entries in
conformity with GAAP and all material Requirements of Law shall be made of all dealings and
transactions in relation to its business and activities; and permit representatives of the
Administrative Agent to visit and inspect any of its properties and examine and, to the extent
reasonable, make abstracts from any of its books and records and to discuss the business,
operations, properties and financial and other condition of the Borrower and its Subsidiaries with
officers and employees of the Borrower and its Subsidiaries and with its independent certified
public accountants, in each case at any reasonable time, upon reasonable notice, and as often as
may reasonably be desired.



65









 





     Section 6.7 Notices.



     Promptly give notice to the Administrative Agent and each Lender of:




     (a) as soon as possible after a Responsible Officer of the Borrower knows or reasonably
should know thereof, the occurrence of any Default or Event of Default;




     (b) as soon as possible after a Responsible Officer of the Borrower knows or reasonably
should know thereof, any (i) default or event of default under any Contractual Obligation of
the Borrower or any of its Subsidiaries, other than as previously disclosed in writing to
the Lenders, or (ii) litigation, investigation or proceeding which may exist at any time
between the Borrower or any of its Subsidiaries and any Governmental Authority, which in
either case would reasonably be expected to not be cured or adversely determined and, if not
cured or if adversely determined, as the case may be, would reasonably be expected to have a
Material Adverse Effect;




     (c) as soon as possible after a Responsible Officer of the Borrower knows or reasonably
should know thereof, the occurrence of any default or event of default under the Convertible
Notes Indenture;




     (d) as soon as possible after a Responsible Officer of the Borrower knows or reasonably
should know thereof, any litigation or proceeding affecting the Borrower or any of its
Subsidiaries that would reasonably be expected to have a Material Adverse Effect;




     (e) the following events, as soon as possible and in any event within 30 days after a
Responsible Officer of the Borrower or any of its Subsidiaries knows or reasonably should
know thereof: (i) the occurrence or expected occurrence of any Reportable Event (or similar
event) with respect to any Single Employer Plan or Foreign Plan, a failure to make any
required contribution to a Single Employer Plan, Multiemployer Plan or Foreign Plan, the
creation of any Lien on the property of the Borrower or its Subsidiaries in favor of the
PBGC, a Plan or a Foreign Plan or any withdrawal from, or the full or partial termination,
Reorganization or Insolvency of, any Multiemployer Plan or Foreign Plan; (ii) the
institution of proceedings or the taking of any other formal action by the PBGC or the
Borrower or any of its Subsidiaries or any Commonly Controlled Entity or any Multiemployer
Plan which could reasonably be expected to result in the withdrawal from, or the
termination, Reorganization or Insolvency of, any Single Employer Plan, Multiemployer Plan
or Foreign Plan; provided, however, that no such notice will be required
under clause (i) or (ii) above unless the event giving rise to such notice, when aggregated
with all other such events under clause (i) or (ii) above, could be reasonably expected to
result in a Material Adverse Effect; or (iii) the first occurrence after the Closing Date of
an Underfunding under a Single Employer Plan or Foreign Plan that exceeds 10% of the value
of the assets of such Single Employer Plan or Foreign Plan, in each case, determined as of
the most recent annual valuation date of such Single Employer Plan or Foreign Plan on the
basis of the actuarial assumptions used to determine the funding requirements of such Single
Employer Plan or Foreign Plan as of such date; and



66









 






     (f) as soon as possible after a Responsible Officer of the Borrower knows or reasonably
should know thereof, (i) any release or discharge by the Borrower or any of its Subsidiaries
of any Materials of Environmental Concern required to be reported under applicable
Environmental Laws to any Governmental Authority, unless the Borrower reasonably determines
that the total Environmental Costs arising out of such release or discharge would not
reasonably be expected to have a Material Adverse Effect; (ii) any condition, circumstance,
occurrence or event not previously disclosed in writing to the Administrative Agent that
would reasonably be expected to result in liability or expense under applicable
Environmental Laws, unless the Borrower reasonably determines that the total Environmental
Costs arising out of such condition, circumstance, occurrence or event would not reasonably
be expected to have a Material Adverse Effect, or would not reasonably be expected to result
in the imposition of any lien or other material restriction on the title, ownership or
transferability of any facilities and properties owned, leased or operated by the Borrower
or any of its Subsidiaries that would reasonably be expected to result in a Material Adverse
Effect; and (iii) any proposed action to be taken by the Borrower or any of its Subsidiaries
that would reasonably be expected to subject the Borrower or any of its Subsidiaries to any
material additional or different requirements or liabilities under Environmental Laws,
unless the Borrower reasonably determines that the total Environmental Costs arising out of
such proposed action would not reasonably be expected to have a Material Adverse Effect.



     Each notice pursuant to this Section shall be accompanied by a statement of a Responsible
Officer of the Borrower (and, if applicable, the relevant Commonly Controlled Entity or Subsidiary)
setting forth details of the occurrence referred to therein and stating what action the Borrower
(or, if applicable, the relevant Commonly Controlled Entity or Subsidiary) proposes to take with
respect thereto.



     Section 6.8 Environmental Laws.



     (a) (i) Comply substantially with, and require substantial compliance by all tenants,
subtenants, contractors, and invitees with, all applicable Environmental Laws; (ii) obtain, comply
substantially with and maintain any and all Environmental Permits necessary for its operations as
conducted and as planned; and (iii) require that all tenants, subtenants, contractors, and invitees
obtain, comply substantially with and maintain any and all Environmental Permits necessary for
their operations as conducted and as planned, with respect to any property leased or subleased
from, or operated by the Borrower or its Subsidiaries. For purposes of this Section 6.8(a),
noncompliance with the foregoing provisions shall not constitute a breach of this covenant,
provided that, upon learning of any actual or suspected noncompliance, the Borrower and any
such affected Subsidiary shall promptly undertake and diligently pursue reasonable efforts, if any,
to achieve compliance, and provided, further, that in any case such noncompliance
would not reasonably be expected to have a Material Adverse Effect.



     (b) Promptly comply, in all material respects, with all orders and directives of all
Governmental Authorities regarding Environmental Laws, other than such orders or directives (i) as
to which the failure to comply would not reasonably be expected to result in a Material Adverse
Effect or (ii) as to which: (x) appropriate reserves have been established in accordance with GAAP;
(y) an appeal or other appropriate contest is or has been timely and properly taken



67









 




and is being diligently pursued in good faith; and (z) if the effectiveness of such order or
directive has not been stayed, the failure to comply with such order or directive during the
pendency of such appeal or contest could not reasonably be expected to give rise to a Material
Adverse Effect.




     Section 6.9 After-Acquired Real Property and Fixtures.



     (a) With respect to any owned real property or fixtures thereon located in the United States
of America, in each case with a purchase price or a fair market value at the time of acquisition of
at least $2,000,000, in which any Loan Party acquires ownership rights at any time after the
Closing Date, promptly grant to the Collateral Agent for the benefit of the applicable Lenders, a
Lien of record on all such owned real property and fixtures, upon terms reasonably satisfactory in
form and substance to the Collateral Agent and in accordance with any applicable requirements of
any Governmental Authority (including any required appraisals of such property under FIRREA);
provided that (i) nothing in this Section 6.9 shall defer or impair the attachment or
perfection of any security interest in any Collateral covered by any of the Security Documents
which would attach or be perfected pursuant to the terms thereof without action by the Borrower,
any of its Subsidiaries or any other Person and (ii) no such Lien shall be required to be granted
as contemplated by this Section 6.9 on any owned real property or fixtures the acquisition of which
is financed, or is to be financed within any time period permitted by Section 7.2(f) or Section
7.2(g), in whole or in part through the incurrence of Indebtedness permitted by Section 7.2(f) or
Section 7.2(g), until such Indebtedness is repaid in full (and not refinanced as permitted by
Section 7.2(f), Section 7.2(g) or Section 7.2(v)) or, as the case may be, the Borrower determines
not to proceed with such financing or refinancing. In connection with any such grant to the
Collateral Agent for the benefit of the Lenders, of a Lien of record on any such real property in
accordance with this Section 6.9, the Borrower or such Subsidiary shall deliver or cause to be
delivered to the Collateral Agent any surveys, title insurance policies and flood hazard
certificates in connection with such grant of such Lien obtained by it in connection with the
acquisition of such ownership rights in such real property or any survey, title insurance policy or
flood hazard certificate that the Collateral Agent shall reasonably request (in light of the value
of such real property and the cost and availability of such surveys, title insurance policies and
flood hazard certificates and whether the delivery of such surveys, title insurance policies and
flood hazard certificates would be customary in connection with such grant of such Lien in similar
circumstances).



     (b) With respect to any Wholly Owned Domestic Subsidiary created or acquired (including by
reason of any Foreign Subsidiary Holdco ceasing to constitute same) subsequent to the Closing Date
by the Borrower or any of its Domestic Subsidiaries (other than any Wholly Owned Domestic
Subsidiary formed solely for the purpose of becoming a Parent Entity, or merging with the Borrower
in connection with another Wholly Owned Domestic Subsidiary becoming a Parent Entity, or otherwise
creating or forming a Parent Entity), promptly notify the Administrative Agent of such occurrence
and, if the Administrative Agent or the Required Lenders so request, promptly (i) execute and
deliver to the Collateral Agent for the benefit of the Lenders such amendments to the Guarantee and
Collateral Agreement as the Collateral Agent shall reasonably deem necessary or reasonably
advisable to grant to the Collateral Agent, for the benefit of the Lenders, a perfected security
interest (as and to the extent provided in the Guarantee and Collateral Agreement) in the Capital
Stock of such new Domestic Subsidiary, (ii)



68









 




deliver to the Collateral Agent or to any agent therefore as may be provided by the
Intercreditor Agreement the certificates (if any) representing such Capital Stock, together with
undated stock powers, executed and delivered in blank by a duly authorized officer of the parent of
such new Domestic Subsidiary and (iii) cause such new Domestic Subsidiary (A) to become a party to
the Guarantee and Collateral Agreement and (B) to take all actions reasonably deemed by the
Collateral Agent to be necessary or advisable to cause the Lien created by the Guarantee and
Collateral Agreement in such new Domestic Subsidiary’s Collateral to be duly perfected in
accordance with all applicable Requirements of Law, including the filing of financing statements in
such jurisdictions as may be reasonably requested by the Collateral Agent.




     (c) With respect to any Foreign Subsidiary created or acquired subsequent to the Closing Date
by the Borrower or any of its Domestic Subsidiaries, the Capital Stock of which is owned directly
by the Borrower or any of its Domestic Subsidiaries, promptly notify the Administrative Agent of
such occurrence and if the Administrative Agent or the Required Lenders so request (it being
understood that if the Administrative Agent does not so request with respect to any such Foreign
Subsidiary that it believes is or is likely to become material to the Borrower and its Subsidiaries
taken as a whole, it will provide notice to the Lenders thereof), promptly (i) execute and deliver
to the Collateral Agent a new pledge agreement or such amendments to the Guarantee and Collateral
Agreement as the Collateral Agent shall reasonably deem necessary or reasonably advisable to grant
to the Collateral Agent, for the benefit of the Lenders, a perfected security interest (as and to
the extent provided in the Guarantee and Collateral Agreement) in the Capital Stock of such new
Foreign Subsidiary that is directly owned by the Borrower or any of its Domestic Subsidiaries
(provided that in no event shall more than 65% of the Capital Stock of any such new Foreign
Subsidiary that is so owned be required to be so pledged and, provided, further,
that no such pledge or security shall be required with respect to any non-wholly owned Foreign
Subsidiary to the extent that the grant of such pledge or security interest would violate the terms
of any agreements under which the Investment by the Borrower or any of its Subsidiaries was made
therein) and (ii) to the extent reasonably deemed advisable by the Collateral Agent, deliver to the
Collateral Agent or to any agent therefor as may be provided by the Intercreditor Agreement the
certificates, if any, representing such Capital Stock, together with undated stock powers, executed
and delivered in blank by a duly authorized officer of the parent of such new Foreign Subsidiary
and take such other action as may be reasonably deemed by the Collateral Agent to be necessary or
desirable to perfect the Collateral Agent’s security interest therein.



     (d) At its own expense, execute, acknowledge and deliver, or cause the execution,
acknowledgement and delivery of, and thereafter register, file or record in an appropriate
governmental office, any document or instrument reasonably deemed by the Collateral Agent to be
necessary or desirable for the creation, perfection and priority and the continuation of the
validity, perfection and priority of the foregoing Liens or any other Liens created pursuant to the
Security Documents (in each case to the extent described therein).



     (e) Notwithstanding anything to contrary in this Agreement, nothing in this Section 6.9 shall
require that any Loan Party grant a Lien with respect to any owned real property or fixtures in
which such Subsidiary acquires ownership rights to the extent that the Administrative Agent, in its
reasonable judgment, determines that the granting of such a Lien is impracticable.



69









 





     Section 6.10 Post-Closing Security Perfection.



     The Borrower agrees to use commercially reasonable efforts to deliver or cause to be delivered
such documents and instruments and take or cause to be taken such other actions as may be
reasonably necessary to provide the perfected security interests described in Sections 3.13(b),
5.1(g) and 5.1(i) (including applicable Mortgages, title reports, title insurance policies,
surveys, appraisals, flood hazard certificates and related opinions of local counsel with respect
to the Mortgaged Property of the Loan Parties that constitutes Collateral) that are not so provided
on the Closing Date. The delivery requirements set forth in this Section 6.10 are delivery
requirements only and not requirements with respect to condition or value. In addition, with
respect to the owned real property located at Highway 114 West and 400 North Kimball, Southlake,
Texas, if such owned real property is owned by a Loan Party on March 31, 2010, the applicable Loan
Party shall promptly grant to the Collateral Agent for the benefit of the applicable Lenders, a
Lien of record on such owned real property and fixtures, upon terms reasonably satisfactory in form
and substance to the Collateral Agent and in accordance with any applicable requirements of any
Governmental Authority.



     Section 6.11 2009 Tax Refund. The Borrower shall use reasonable best efforts to
obtain the maximum amount of any 2009 Tax Refund of U.S. federal income taxes and shall use
commercially reasonable efforts to obtain any 2009 Tax Refund of state income taxes, in each case
that is legally due to the Borrower or any Subsidiary thereof, as soon as reasonably practicable
and based on positions determined by the Borrower in good faith and consistent with past practice
of the Borrower and its Subsidiaries in the ordinary course, provided that this Section
6.11 shall not apply to any 2009 Tax Refund of state income taxes that, in the good faith judgment
of the Borrower, is not expected to be greater than $25,000, and provided, further,
that neither the Borrower nor any Subsidiary thereof shall be required to file any tax return prior
to the due date (taking into account applicable extensions) for filing such tax return.



     Section 6.12 Notice of Any ABL Refinancing.



     If the Borrower shall have determined to replace or refinance the ABL Facility Agreement, the
Borrower shall give notice to the Administrative Agent of such determination (and the
Administrative Agent agrees to so notify the Lenders). The Lenders shall have an opportunity (for
such period of time as the Borrower shall in good faith determine to be reasonable) to make a
proposal to provide such replacement or refinancing of the ABL Facility Agreement, provided
that (i) the Borrower shall not have any obligation to accept any such proposal or to enter into,
continue or consummate any discussions, negotiations, understanding or agreement with any of the
Lenders or any other Person with respect to any such proposal or any replacement or refinancing of
the ABL Facility Agreement, (ii) if the Borrower elects to enter into any discussions or
negotiations with any of the Lenders or any other Person with respect to any such proposal or any
replacement or refinancing of the ABL Facility Agreement, the Borrower shall have the right in its
sole discretion to suspend, discontinue or terminate such discussions or negotiations at any time
or from time to time, and (iii) notwithstanding any other provision hereof, the Borrower shall not
have any liability to any of the Lenders with respect to any fees, expenses or other obligations or
liabilities that any of the Lenders or any other Person may incur in making any such proposal or in
entering into or continuing any such discussions or negotiations.



70









 





ARTICLE VII




NEGATIVE COVENANTS



     The Borrower hereby agrees that, from and after the Closing Date and thereafter until payment
in full of the Term Loans and any other amount then due and owing to any Lender or any Agent
hereunder and under any Note, the Borrower shall not and shall not permit any of its Subsidiaries
to, directly or indirectly:



     Section 7.1 Consolidated Leverage Ratio.



     (a) Permit the Consolidated Leverage Ratio as at the last day of the Most Recent Four Quarter
Period, beginning with the four fiscal quarter period of the Borrower ending October 30, 2011, to
exceed the Maximum Consolidated Leverage Ratio.



     (b) Section 7.1(a) shall not apply with respect to any four fiscal quarter period of the
Borrower (the last day of such period, the “Fiscal Period End Date”) if, as of the last day
(the “Calculation Date”) on which financial statements of the Borrower are required to be
delivered pursuant to Section 6.1(a) or 6.1(b) for the fiscal year or quarter ending on the Fiscal
Period End Date, (x) the aggregate principal amount of Term Loans outstanding at the beginning of
the fiscal quarter then ended shall have been reduced by an amount (the “Required Amortization
Amount”) equal to $3,750,000 minus (at the Borrower’s option) any or all of the Cumulative Term
Loan Amortization Not Otherwise Applied (up to an amount not to exceed $3,750,000), through any
repayment, prepayment, repurchase or other acquisition or retirement (including pursuant to Section
3.4 but excluding scheduled principal installment payments made pursuant to Section 2.3), or (y)
the Required Amortization Amount as calculated pursuant to the foregoing is zero.



     Section 7.2 Limitation on Indebtedness.



     Create, incur, assume or suffer to exist any Indebtedness (including any Indebtedness of any
of its Subsidiaries), except:




     (a) Indebtedness of the Borrower or any of its Subsidiaries incurred pursuant to this
Agreement and the other Loan Documents;




     (b) Indebtedness evidenced by the Convertible Notes in an aggregate principal amount at
any time outstanding not to exceed $9,000,000, provided that all such Indebtedness
shall be repaid, redeemed, defeased, discharged or otherwise acquired or retired no later
than January 15, 2010 with payment therefor to be disbursed from the Convertible Note
Account;




     (c) Indebtedness of the Borrower or any of its Subsidiaries evidenced by any senior
notes, other senior debt securities, or other senior indebtedness (collectively, “Senior
Notes”) or subordinated notes, other subordinated debt securities or other subordinated
indebtedness (“Subordinated Indebtedness”), provided that (i) immediately



71









 







after giving effect to each issuance of such Senior Notes or Subordinated Indebtedness,
the Consolidated Leverage Ratio of the Borrower as at the last day of the Most Recent Four
Quarter Period is less than 4.00 to 1.00, (ii) any such Senior Notes or Subordinated
Indebtedness shall have a stated maturity date after the Termination Date and (iii) any such
Senior Notes or Subordinated Indebtedness shall not be secured by any assets of the Loan
Parties not pledged as Collateral;




     (d) Indebtedness of the Borrower or any of its Subsidiaries incurred pursuant to the
ABL Facility Documents, including any extension, refinancing, refunding, replacement or
renewal thereof, whether in whole or in part; provided that at any time outstanding
pursuant to this clause (d) (i) the aggregate face amount of any outstanding undrawn letters
of credit that are not cash collateralized shall not exceed $25,000,000 and (ii) the
aggregate principal amount of such Indebtedness (including the aggregate face amount of any
outstanding undrawn letters of credit that are not cash collateralized) shall not exceed
$100,000,000 at any time outstanding (except as a result of any capitalization of accrued
and unpaid interest thereon) and ;




     (e) Indebtedness of the Borrower or any Subsidiary to the Borrower or any Subsidiary;




     (f) Indebtedness of the Borrower or any of its Subsidiaries incurred to finance or
refinance the acquisition, leasing, construction or improvement of fixed or capital assets
(whether pursuant to a loan, a Financing Lease or otherwise) otherwise permitted pursuant to
this Agreement, and any other Financing Leases, and any refinancings, replacements,
refundings, renewals or extensions thereof, in whole or in part, in an aggregate principal
amount not exceeding $10,000,000 at any time outstanding, provided that such amount
shall be increased by an amount equal to $10,000,000 on each anniversary of the Closing
Date, so long as no Default or Event of Default shall have occurred and be continuing on any
date on which such amount is to be increased;




     (g) (x) unsecured Indebtedness of the Borrower or any of its Subsidiaries incurred to
finance or refinance the purchase price of, or (y) Indebtedness of the Borrower or any of
its Subsidiaries assumed in connection with, any acquisition permitted by Section 7.9;
provided that (i) in the case of clause (x), such Indebtedness is incurred prior to,
substantially simultaneously with or within six months after such acquisition or in
connection with a refinancing thereof, (ii) if such Indebtedness is owed to a Person, other
than the Person from whom such acquisition is made or any Affiliate thereof, such
Indebtedness shall have terms and conditions reasonably satisfactory to the Administrative
Agent and shall not exceed 70% of the purchase price of such acquisition (including any
Indebtedness assumed in connection with such acquisition) (or such greater percentage as
shall be reasonably satisfactory to the Administrative Agent or, if any such purchase price
shall be greater than $25,000,000, such greater percentage as shall be reasonably
satisfactory to the Required Lenders), (iii) if such Indebtedness is being assumed under
clause (y), such Indebtedness shall not have been incurred by any party in contemplation of
the acquisition permitted by Section 7.9 and (iv) immediately after giving effect to such
acquisition no Default or Event of Default shall have occurred and be continuing;



72









 






     (h) to the extent that any Indebtedness may be incurred or arise thereunder,
Indebtedness of the Borrower or any of its Subsidiaries under Interest Rate Protection
Agreements and Permitted Hedging Arrangements;




     (i) other Indebtedness of the Borrower or any of its Subsidiaries outstanding on the
Closing Date, or incurred under facilities in existence on the Closing Date, and listed on
Schedule 7.2(i), and any refinancings, replacements, refundings, renewals or extensions
thereof, in whole or in part, on financial and other terms, in the reasonable judgment of
the Borrower, no more onerous to the Borrower or any of its Subsidiaries in the aggregate
than the financial and other terms of such Indebtedness, provided that the amount of
such Indebtedness is not increased at the time of such refinancing, replacements, refunding,
renewal or extension except by an amount equal to any original issue discount (if
applicable), any premium or other amounts paid, and discounts, commissions, fees and
expenses incurred, in connection with such refinancing, refunding, renewal or extension;




     (j) to the extent that any Guarantee Obligation or other obligation described in
Section 7.4 constitutes Indebtedness, such Indebtedness;




     (k) Indebtedness in respect of performance, bid, material and supply, tax, appeal,
surety, judgment, replevin and similar bonds, other suretyship arrangements, other similar
obligations, and trade-related letters of credit, all in the ordinary course of business;
and Indebtedness under or in connection with the Cash Collateral Agreement and the letters
of credit secured thereby;




     (l) Indebtedness of Foreign Subsidiaries of the Borrower not exceeding, as to all such
Foreign Subsidiaries, in aggregate principal amount at any time outstanding an amount equal
to the greater of $10,000,000 or 55% of book value of foreign assets;




     (m) Indebtedness of the Borrower or any of its Subsidiaries incurred to finance
insurance premiums in the ordinary course of business;




     (n) Indebtedness of the Borrower or any of its Subsidiaries arising from the honoring
of a check, draft or similar instrument against insufficient funds; provided that
such Indebtedness is extinguished within two Business Days of its incurrence;




     (o) Indebtedness of the Borrower or any of its Subsidiaries in respect of Financing
Leases which have been funded solely by Investments of the Borrower and its Subsidiaries
permitted by Section 7.8(m);




     (p) Indebtedness of the Borrower or any of its Subsidiaries arising in connection with
industrial development or revenue bonds or similar obligations secured by property or assets
leased to and operated by the Borrower or such Subsidiary that were issued in connection
with the financing or refinancing of such property or assets, provided,
that, the aggregate principal amount of such Indebtedness outstanding at any time
shall not exceed $30,000,000;



73









 






     (q) cash management obligations and other Indebtedness of the Borrower or any of its
Subsidiaries in respect of netting services, overdraft protections, credit cards or stored
value cards and similar arrangements in each case arising under standard business terms of
any bank at which the Borrower or any Subsidiary maintains an overdraft, cash pooling,
credit cards or stored value cards or other similar facility or arrangement;




     (r) Indebtedness of the Borrower or any of its Subsidiaries in respect of any Sale and
Leaseback Transaction, provided that immediately after giving effect to each such
Sale and Leaseback Transaction, the Consolidated Leverage Ratio of the Borrower as at the
last day of the Most Recent Four Quarter Period is less than 3.5 to 1.00; and any
refinancings, replacements, refundings, renewals or extensions thereof, in whole or in part;




     (s) Indebtedness of the Borrower or any of its Subsidiaries in respect of obligations
evidenced by bonds, debentures, notes or similar instruments issued as payment-in-kind
interest payments in respect of Indebtedness otherwise permitted under this Section 7.2;




     (t) accretion of the principal amount of Indebtedness of the Borrower or any of its
Subsidiaries otherwise permitted under this Section 7.2 issued at any original issue
discount;




     (u) other Indebtedness of the Borrower or any of its Subsidiaries not exceeding
$15,000,000 in aggregate principal amount at any time outstanding; and




     (v) Indebtedness of the Borrower or any of its Subsidiaries which represents an
extension, refinancing, refunding, replacement or renewal, in whole or in part, of any of
the Indebtedness described in clause (c) and (g) hereof (and, to the extent related thereto,
clauses (s) and (t) hereof); provided that (i) the principal amount (or accreted
value, if applicable) thereof (less any original issue discount, if applicable) does not
exceed the principal amount (or accreted value, if applicable) of the Indebtedness so
extended, refinanced, refunded, replaced or renewed, except by an amount equal to unpaid
accrued interest and premium (including applicable prepayment penalties) thereon plus
discounts, commission and other fees and expenses reasonably incurred in connection
therewith, (ii) any Liens securing such Indebtedness are limited to all or part of the same
property (including, if provided by the documentation evidencing such Indebtedness being
extended, refinanced, replaced or renewed, after-acquired property) that secured or would
have secured the Indebtedness being extended, refinanced, refunded, replaced or renewed;
provided that the total value of the collateral securing such Indebtedness incurred
under this Section 7.2(v) immediately following such incurrence shall not be materially
greater than the value of the collateral securing the Indebtedness being extended,
refinanced, replaced or renewed immediately prior to such extension, refinancing,
replacement or renewal, (iii) no Loan Party that is not originally obligated with respect to
repayment of such Indebtedness is required to become obligated with respect thereto, (iv)
such extension, refinancing, refunding, replacement or renewal does not result in a
shortening of the average weighted maturity of the Indebtedness so extended, refinanced,
refunded, replaced or renewed and (v) if the Indebtedness that is



74









 







extended, refinanced, refunded, replaced or renewed was subordinated in right of
payment to the obligations of the Borrower hereunder and under the other Loan Documents,
then the terms and conditions of the extension, refinancing, refunding, replacement or
renewal Indebtedness must include subordination terms and conditions that are at least as
favorable to the Lenders as those that were applicable to the extended, refinanced,
refunded, replaced or renewed Indebtedness.



     For purposes of determining compliance with this Section 7.2, in the event that any
Indebtedness meets the criteria of more than one of the types of Indebtedness described in clauses
(a) through (v) above, the Borrower, in its sole discretion, shall classify such item of
Indebtedness and may include the amount and type of such Indebtedness in one or more of such
clauses (including in part under one such clause and in part under another such clause).



     Section 7.3 Limitation on Liens.



     Create, incur, assume or suffer to exist any Lien upon any of its property, assets or
revenues, whether now owned or hereafter acquired, except for the following (Liens described below
are herein referred to as “Permitted Liens”; provided, however, that no
reference to a Permitted Lien herein, including any statement or provision as to the acceptability
of any Permitted Lien, shall in any way constitute or be construed so as to postpone or subordinate
any Liens or other rights of the Agents, the Lenders or any of them hereunder or arising under any
other Loan Document in favor of such Permitted Lien):




     (a) Liens for Taxes not yet delinquent or the nonpayment of which in the aggregate
would not reasonably be expected to have a Material Adverse Effect, or which are being
contested in good faith by appropriate proceedings diligently conducted and adequate
reserves with respect thereto are maintained on the books of the Borrower or its
Subsidiaries, as the case may be, in conformity with GAAP;




     (b) carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s or other like
Liens arising in the ordinary course of business and relating to obligations which are not
overdue for a period of more than 60 days or which are being contested in good faith by
appropriate proceedings diligently conducted;




     (c) Liens of landlords or of mortgagees of landlords arising by operation of law or
pursuant to the terms of real property leases, provided that the rental payments
secured thereby are not yet due and payable;




     (d) pledges, deposits or other Liens in connection with workers’ compensation,
unemployment insurance, other social security benefits or other insurance related
obligations (including pledges or deposits in respect of liability to insurance carriers
under insurance or self-insurance arrangements);




     (e) Liens arising by reason of any judgment, decree or order of any court or other
Governmental Authority, if appropriate legal proceedings which may have been duly initiated
for the review of such judgment, decree or order, are being diligently prosecuted and shall
not have been finally terminated or the period within which such proceedings may be
initiated shall not have expired;



75









 






     (f) Liens to secure the performance of bids, trade contracts (other than for borrowed
money), obligations for utilities, leases, statutory obligations, surety and appeal bonds,
performance bonds, material and supply, tax, judgment and like bonds, replevin bonds, other
similar bonds and other obligations of a like nature incurred in the ordinary course of
business; and Liens created under or in connection with the Cash Collateral Agreement and
the letters of credit secured thereby;




     (g) zoning restrictions, easements, rights-of-way, restrictions on the use of property,
other similar encumbrances incurred in the ordinary course of business and minor
irregularities of title, which do not materially interfere with the ordinary conduct of the
business of the Borrower and its Subsidiaries taken as a whole;




     (h) Liens arising from (i) operating leases and (ii) equipment or other materials which
are not owned by any Borrower or a Subsidiary located on the premises of such Borrower or
Subsidiary (but not in connection with, or as part of, the financing thereof) from time to
time in the ordinary course of business (it being understood that any precautionary UCC
financing statement filings in respect of any such lease or equipment shall not be deemed a
Lien);




     (i) statutory or common law Liens or rights of setoff of depository banks or securities
intermediaries with respect to deposit accounts, securities accounts or other funds of the
Borrower or any Subsidiary maintained at such banks or intermediaries, including to secure
fees and charges in connection with returned items or the standard fees and charges of such
banks or intermediaries in connection with the deposit accounts, securities accounts or
other funds maintained by the Borrower or such Subsidiary at such banks or intermediaries
(but not any Indebtedness for borrowed money owing by the Borrower or such Subsidiary to
such banks or intermediaries);




     (j) Liens on goods in favor of customs and revenue authorities arising as a matter of
law to secure custom duties in connection with the importation of such goods;




     (k) Liens arising out of conditional sale, title retention, consignment or similar
arrangements for the sale of goods entered into by the Borrower or its Subsidiaries in the
ordinary course of business;




     (l) Liens in respect of Indebtedness of the Borrower and its Subsidiaries permitted by
Section 7.2(m), Section 7.2(o) or Section 7.2(q) or (to the extent relating to Indebtedness
otherwise permitted to be secured) Section 7.2(g) or Section 7.2(t);




     (m) Liens on the property or assets described in Section 7.2(p) in respect of
Indebtedness of the Borrower and its Subsidiaries permitted by Section 7.2(p);




     (n) Liens in respect of or consisting of (i) Indebtedness of the Borrower and its
Subsidiaries permitted by Section 7.2(f) incurred to finance or refinance the acquisition,
leasing, construction or improvement of fixed or capital assets, provided, that such
Liens do not at any time encumber any property other than the property financed or
refinanced by such Indebtedness, or (ii) Indebtedness of the Borrower and its Subsidiaries
permitted by Section 7.2(g) assumed in connection with any acquisition permitted by



76









 







Section 7.9, provided that in the case of this clause (ii), (x) such Liens
shall not be created in contemplation of such acquisition and shall be created no later than
the later of the date of such acquisition or the date of the assumption of such
Indebtedness, and (y) the total value of the collateral subject to such Liens immediately
following such acquisition shall not be materially greater than the value of the collateral
subject to such Liens immediately prior to such acquisition;




     (o) Liens existing on assets or properties at the time of the acquisition thereof by
the Borrower or any of its Subsidiaries which do not materially interfere with the use,
occupancy, operation and maintenance of structures existing on the property subject thereto
or extend to or cover any assets or properties of the Borrower or such Subsidiary other than
the assets or property being acquired;




     (p) (i) Liens in respect of Indebtedness of the Borrower and its Subsidiaries permitted
by Section 7.2(i), provided that no such Lien in respect of Indebtedness incurred
pursuant to Section 7.2(i) is spread to cover any additional property after the Closing Date
and that the amount of Indebtedness secured thereby is not increased except as permitted by
Section 7.2(i), (ii) Liens not otherwise permitted hereunder, all of which Liens permitted
pursuant to this Section 7.3(p)(ii) secure obligations not exceeding $10,000,000 in
aggregate amount at any time outstanding, and (iii) Liens contemplated by Section
7.2(v)(ii);




     (q) Liens in respect of Guarantee Obligations permitted under Section 7.4(d) not
exceeding (as to the Borrower and all of its Subsidiaries) $5,000,000 in aggregate amount at
any time outstanding;




     (r) Liens created pursuant to the Security Documents;




     (s) any encumbrance or restriction (including put and call agreements) with respect to
the Capital Stock of any joint venture or similar arrangement pursuant to the joint venture
or similar agreement with respect to such joint venture or similar arrangement,
provided that no such encumbrance or restriction affects in any way the ability of
the Borrower or any of its Subsidiaries to comply with Section 6.9(b) or Section 6.9(c);




     (t) Liens on property of any Foreign Subsidiary of the Borrower in respect of
Indebtedness of such Subsidiary permitted by Section 7.2;




     (u) Liens on intellectual property, including any foreign patents, patent applications,
trademarks, trademark applications, trade names, copyrights, technology, know-how or
processes; provided that such Liens result from the granting of licenses in the
ordinary course of business to any Person to use such intellectual property or such foreign
patents, patent applications, trademarks, trademark applications, trade names, copyrights,
technology, know-how or processes, as the case may be;




     (v) Liens on property (i) of any Subsidiary that is not a Loan Party and (ii) that does
not constitute Collateral, which are Liens in respect of Indebtedness of the applicable
Subsidiary permitted under Section 7.2, Guarantee Obligations of the



77









 







applicable Subsidiary permitted under Section 7.4, or other liabilities or obligations
of the applicable Subsidiary not prohibited by this Agreement;




     (w) Liens in respect of or consisting of Indebtedness of the Borrower and its
Subsidiaries permitted by Section 7.2(c) and Guarantee Obligations in respect of such
Indebtedness permitted under Section 7.4(k) and any refinancings, extensions, refundings,
renewals and replacements thereof, in whole or in part, otherwise permitted under this
Agreement;




     (x) Liens in respect of or consisting of Indebtedness of the Borrower and its
Subsidiaries permitted by Section 7.2(d) and Guarantee Obligations in respect of such
Indebtedness permitted under Section 7.4(k) and any refinancings, extensions, refundings,
renewals and replacements thereof, whether in whole or in part, otherwise permitted under
this Agreement or otherwise created pursuant to the ABL Facility Documents; provided
that (i) such Liens do not apply to any asset other than Collateral that is subject to a
Lien granted under a Security Document to secure the “Secured Obligations” as defined in the
Guarantee and Collateral Agreement and (ii) all such Liens shall be subject to the
Intercreditor Agreement or another intercreditor agreement that is no less favorable to the
Secured Parties than the Intercreditor Agreement;




     (y) Liens in respect of or in connection with Interest Rate Protection Agreements and
Permitted Hedging Arrangements entered into by the Borrower or its Subsidiaries;




     (z) Liens on property subject to Sale and Leaseback Transactions and general
intangibles related thereto;




     (aa) Liens in respect of Guarantee Obligations permitted under Section 7.4 relating to
Indebtedness permitted under Section 7.2, to the extent Liens in respect of such
Indebtedness are permitted under this Section 7.3; and




     (bb) Liens, security interests, title imperfections and defects, and all other defects
and impairments of any nature whatsoever, in each case in existence on the Closing Date.



     Section 7.4 Limitation on Guarantee Obligations.



     Create, incur, assume or suffer to exist any Guarantee Obligation except:




     (a) Guarantee Obligations in existence on the Closing Date, and any refinancings,
refundings, extensions, replacements or renewals thereof, in whole or in part,
provided that the amount of such Guarantee Obligation shall not be increased at the
time of such refinancing, refunding, extension, replacements or renewal except to the extent
that the amount of Indebtedness in respect of such Guarantee Obligations is permitted to be
increased by Section 7.2(i);




     (b) Guarantee Obligations in respect of performance, bid, appeal, surety, material and
supply, tax, judgment, replevin and similar bonds, other suretyship



78









 







arrangements, other similar obligations and trade-related letters of credit, all in the
ordinary course of business;




     (c) Guarantee Obligations in respect of indemnification and contribution agreements
expressly permitted by Section 7.10(d) or similar agreements by the Borrower;




     (d) Guarantee Obligations in respect of third-party loans and advances to officers or
employees of the Borrower or any of its Subsidiaries (i) for travel and entertainment
expenses incurred in the ordinary course of business, (ii) for relocation expenses incurred
in the ordinary course of business, or (iii) for other purposes in an aggregate amount (as
to the Borrower and all of its Subsidiaries), together with the aggregate amount of all
Investments permitted under Section 7.8(e)(iv), of up to $5,000,000 outstanding at any time;




     (e) obligations to insurers required in connection with worker’s compensation and other
insurance coverage incurred in the ordinary course of business;




     (f) obligations of the Borrower and its Subsidiaries under any Interest Rate Protection
Agreements or under Permitted Hedging Arrangements;




     (g) Guarantee Obligations incurred in connection with acquisitions permitted under
Section 7.9, provided that if any such Guarantee Obligation inures to the benefit of
any Person other than the Person from whom such acquisition is made or any Affiliate
thereof, such Guarantee Obligation shall not exceed, with respect to any such acquisition,
70% of the purchase price of such acquisition (including any Indebtedness assumed in
connection with any such acquisition) (or such greater percentage as shall be reasonably
satisfactory to the Administrative Agent or, if any such purchase price shall be greater
than $25,000,000, such greater percentage shall be reasonably satisfactory to the Required
Lenders);




     (h) guarantees made by the Borrower or any of its Subsidiaries of obligations of the
Borrower or any of its Subsidiaries (other than any Indebtedness outstanding pursuant to
Sections 7.2(b), (c) and (d)) which obligations are otherwise permitted under this
Agreement;




     (i) Guarantee Obligations in connection with sales or other dispositions permitted
under Section 7.6, including indemnification obligations with respect to leases, and
guarantees of collectability in respect of accounts receivable or notes receivable for up to
face value;




     (j) Guarantee Obligations incurred pursuant to the Guarantee and Collateral Agreement
or any other Loan Document, or otherwise in respect of Indebtedness permitted by Section
7.2(a);




     (k) Guarantee Obligations (i) in respect of Indebtedness permitted pursuant to
Sections 7.2(b), (c) and (d), provided that (x) if any such Indebtedness is
subordinated in right of payment to the obligations of the Borrower hereunder and under the
other Loan



79









 







Documents, then any corresponding Guarantee Obligations shall be subordinated to
Indebtedness outstanding pursuant to this Agreement and other Loan Documents to
substantially the same extent, and (y) Guarantee Obligations in respect of Indebtedness
permitted pursuant to Section 7.2(b) and (c) shall be permitted only so long as such
Guarantee Obligations are incurred only by Guarantors or the Borrower, or (ii) otherwise
arising pursuant to the ABL Facility Documents;




     (l) accommodation guarantees for the benefit of trade creditors of the Borrower or any
of its Subsidiaries in the ordinary course of business;




     (m) Guarantee Obligations in respect of Investments expressly permitted by Section 7.8;
and




     (n) Guarantee Obligations in respect of Indebtedness or other obligations of a Person
in connection with a joint venture or similar arrangement in respect of which no other
co-investor or other Person has a greater legal or beneficial ownership interest than the
Borrower or any of its Subsidiaries, and as to all of such Persons does not at any time
exceed $10,000,000 in aggregate outstanding principal amount; provided that (i) such
amount shall be increased by an amount equal to $2,500,000 on each anniversary of the
Closing Date, so long as no Default or Event of Default shall have occurred and be
continuing on any date on which such amount is to be increased and (ii) such amount and any
increase in such amount permitted by clause (i) shall be reduced by the aggregate amount of
Investments outstanding under Section 7.8(l).



     Section 7.5 Limitation on Fundamental Changes.



     Enter into any merger, consolidation or amalgamation, or liquidate, wind up or dissolve itself
(or suffer any liquidation or dissolution), or convey, sell, lease, assign, transfer or otherwise
dispose of, all or substantially all of its property, business or assets, except:




     (a) any Subsidiary of the Borrower may be merged, consolidated or amalgamated with or
into the Borrower (provided that the Borrower shall be the continuing or surviving
corporation) or with or into any one or more Wholly Owned Subsidiaries of the Borrower
(provided that the Wholly Owned Subsidiary or Subsidiaries of the Borrower shall be
the continuing or surviving entity);




     (b) any Subsidiary of the Borrower may sell, lease, transfer or otherwise dispose of
any or all of its assets (upon voluntary liquidation or otherwise) to the Borrower or any
Wholly Owned Subsidiary of the Borrower (and, in the case of a non-Wholly Owned Subsidiary,
may be liquidated to the extent the Borrower or any Wholly Owned Subsidiary which is a
direct parent of such non-Wholly Owned Subsidiary receives a pro rata distribution of the
assets thereof);




     (c) the Borrower or any Subsidiary may be merged, consolidated or amalgamated with or
into another Person if the Borrower or such Subsidiary is the surviving corporation or the
Person formed by or surviving such merger, consolidation or amalgamation (i) is organized or
existing under the laws of the United States or any state, district or territory thereof,
(ii) expressly assumes all obligations of the Borrower or such



80









 







Subsidiary, as applicable, under the Loan Documents pursuant to documentation
reasonably satisfactory to the Administrative Agent and immediately after such merger,
consolidation or amalgamation, no Default or Event of Default shall have occurred;




     (d) as expressly permitted by Section 7.6; or




     (e) any merger, consolidation or amalgamation in connection with an acquisition
permitted by Section 7.9(b) or (c).



     Section 7.6 Limitation on Sale of Assets.



     Convey, sell, lease, assign, transfer, license, abandon or otherwise dispose of any of its
property, business or assets, including receivables and leasehold interests (each, a
“Disposition”) (other than leases and subleases in the ordinary course of business),
whether now owned or hereafter acquired, or, in the case of any Subsidiary of the Borrower, issue
or sell any shares of such Subsidiary’s Capital Stock, to any Person other than the Borrower or any
Wholly Owned Subsidiary of the Borrower, except:




     (a) the sale or other Disposition of obsolete, idle, worn out or surplus property or
assets, whether now owned or hereafter acquired, in the ordinary course of business;




     (b) the sale or other Disposition of any property or assets in the ordinary course of
business or in connection with an Exempt Sale and Leaseback Transaction;




     (c) the sale or other Disposition of accounts receivable pursuant to any Factoring
Transaction;




     (d) the sale or discount without recourse of accounts receivable or notes receivable
arising in the ordinary course of business, or the conversion or exchange of accounts
receivable into or for notes receivable, in connection with the compromise or collection
thereof; provided that, in the case of any Foreign Subsidiary of the Borrower, any
such sale or discount may be with recourse if such sale or discount is consistent with
customary practice in such Foreign Subsidiary’s country of business;




     (e) any Disposition of Capital Stock of a Subsidiary that becomes a Parent Entity
(“New Parent”), including as a result of a merger of the Borrower with a Subsidiary
in which (x) previously outstanding Capital Stock of the Borrower is converted into or
becomes a right to receive Capital Stock of a New Parent and (y) Capital Stock of the
Borrower as the continuing or surviving Person in such merger consists of Capital Stock
directly or indirectly held by a New Parent;




     (f) subject to any applicable limitations set forth in Section 7.5, Dispositions of any
assets or property by the Borrower or any of its Subsidiaries to the Borrower or any Wholly
Owned Subsidiary of the Borrower;




     (g) (i) the abandonment or other Disposition of patents, trademarks or other
intellectual property that are, in the reasonable judgment of the Borrower, no longer
economically practicable to maintain or useful in the conduct of the business of the



81









 







Borrower and its Subsidiaries taken as a whole and (ii) licensing of intellectual
property in the ordinary course of business;




     (h) any Disposition by the Borrower or any of its Subsidiaries, provided that
the Net Cash Proceeds of each such Disposition do not exceed $2,500,000 and the aggregate
Net Cash Proceeds of all Dispositions in any fiscal year made pursuant to this paragraph (h)
do not exceed $5,000,000;




     (i) any Asset Sale by the Borrower or any other Loan Party, or other Disposition by any
other Subsidiary of the Borrower, the Net Cash Proceeds of which, together with the Net Cash
Proceeds of other Asset Sales and Dispositions pursuant to this Section 7.6(i), do not
exceed the greater of $50,000,000 or 8.5% of Consolidated Tangible Assets in the aggregate
after the Closing Date, provided that in the case of any such Asset Sale, an amount
equal to 100% of the Net Cash Proceeds of all such Asset Sales less the Reinvested Amount is
applied in accordance with Section 3.4(c)(i)(2); and




     (j) any Disposition set forth on Schedule 7.6(j).



     Section 7.7 Limitation on Dividends and Share Repurchases.



     Declare or pay any dividend (other than dividends payable solely in Capital Stock (other than
Disqualified Capital Stock) of the Borrower or options, warrants or other rights to purchase
Capital Stock (other than Disqualified Capital Stock) of the Borrower) on, or make any payment on
account of (including to set apart assets for a sinking or other analogous fund for) the purchase,
redemption, defeasance, retirement or other acquisition of, any shares of any class of Capital
Stock of the Borrower or any warrants or options to purchase any such Capital Stock, whether now or
hereafter outstanding, or make any other distribution (other than distributions payable solely in
Capital Stock (other than Disqualified Capital Stock) of the Borrower or options, warrants or other
rights to purchase common stock of the Borrower) in respect thereof, either directly or indirectly,
whether in cash or property or in obligations of the Borrower, except that:




     (a) the Borrower may pay or make any dividend, payment or distribution in an amount not
exceeding the Available Excluded Contribution Amount immediately prior to the time of the
payment or making of such dividend, payment or distribution, provided that no such
dividend, payment or distribution shall be permitted if a Default or Event of Default has
occurred and is continuing or would result therefrom unless the aggregate amount of such
dividend, payment or distribution does not exceed the aggregate amount of any Excluded
Contributions (to the extent not applied to permit any dividend, payment or distribution
pursuant to this Section 7.7(a)) received within the 90 day period preceding the date of
such dividend, payment or distribution;




     (b) after the fiscal year ended October 31, 2010, the Borrower may pay or make any
other dividend, payment or distribution in an amount not exceeding the Available Amount
immediately prior to the time of the payment or making of such dividend, payment or
distribution; provided that, at the time of such payment, dividend or distribution,
(i) no Default or Event of Default has occurred and is continuing or would



82









 







result therefrom and (ii) immediately after giving effect to such dividend, payment or
distribution, the Consolidated Leverage Ratio of the Borrower as of the last day of the Most
Recent Four Quarter Period, calculated on a pro forma basis after giving effect to such
dividend, payment or distribution, is less than 4.00 to 1.00;




     (c) the Borrower may pay cash dividends in an amount sufficient to allow any Parent
Entity to pay expenses (other than taxes) incurred in the ordinary course of business,
provided that, if any Parent Entity shall own any material assets other than the
Capital Stock of the Borrower or another Parent Entity or other assets relating to the
ownership interest of such Parent Entity in another Parent Entity, the Borrower or its
Subsidiaries, such cash dividends with respect to such Parent Entity shall be limited to the
reasonable and proportional share, as determined by the Borrower in its reasonable
discretion, of such expenses incurred by such Parent Entity relating or allocable to its
ownership interest in the Borrower or another Parent Entity and such other related assets;




     (d) the Borrower may pay cash dividends in an amount sufficient to cover reasonable and
necessary expenses (including professional fees and expenses) (other than taxes) incurred by
any Parent Entity in connection with (i) registration, public offerings and exchange listing
of equity or debt securities and maintenance of the same, (ii) compliance with reporting
obligations under, or in connection with compliance with, federal or state laws or under
this Agreement or any of the other Loan Documents and (iii) indemnification and
reimbursement of directors, officers and employees in respect of liabilities relating to
their serving in any such capacity, or obligations in respect of director and officer
insurance (including premiums therefor), provided that, in the case of sub-clause
(i) above, if any Parent Entity shall own any material assets other than the Capital Stock
of the Borrower or another Parent Entity or other assets relating to the ownership interest
of such Parent Entity in another Parent Entity, the Borrower or its Subsidiaries, with
respect to such Parent Entity such cash dividends shall be limited to the reasonable and
proportional share, as determined by the Borrower in its reasonable discretion, of such
expenses incurred by such Parent Entity relating or allocable to its ownership interest in
another Parent Entity, the Borrower and such other assets;




     (e) the Borrower may repurchase or may pay cash dividends in an amount sufficient to
allow any Parent Entity to repurchase shares of Capital Stock of the Borrower or such Parent
Entity, as the case may be, or rights, options or units in respect thereof from any
Management Investors or former Management Investors (or any of their respective heirs,
successors, assigns, legal representatives or estates), or as otherwise contemplated by any
Management Subscription Agreements, for an aggregate purchase price not to exceed
$5,000,000; provided that such amount shall be increased by (i) an amount equal to
$2,500,000 on each anniversary of the Closing Date, commencing on the first anniversary of
the Closing Date, and (ii) an amount equal to the proceeds to the Borrower (whether received
by it directly or from a Parent Entity or applied to pay Parent Entity expenses) of any
resales or new issuances of shares and options to any Management Investors, at any time
after the initial issuances to any Management Investors, together with the aggregate amount
of deferred compensation owed by the Borrower or any of its Subsidiaries to any Management
Investor that shall thereafter have been cancelled, waived or exchanged at any time after
the initial issuances to any thereof



83









 







in connection with the grant to such Management Investor of the right to receive or
acquire shares of the Borrower’s or any Parent Entity’s Capital Stock;




     (f) the Borrower may pay cash dividends, or make payments (i) pursuant to any Tax
Sharing Agreement and (ii) to any Parent Entity to pay or permit any Parent Entity to pay
any Related Taxes;




     (g) the Borrower may pay cash dividends in an amount sufficient to allow any Parent
Entity to pay all fees and expenses incurred in connection with the Transactions and the
other transactions expressly contemplated by this Agreement and the other Loan Documents;




     (h) the Borrower may repurchase or withhold, or may pay cash or other dividends in an
amount sufficient to allow any Parent Entity to repurchase or withhold, Capital Stock of the
Borrower or any Parent Entity in connection with the exercise of stock options or warrants
or the vesting of restricted stock (including restricted stock units) if such Capital Stock
represent a portion of the exercise price of, or withholding obligation with respect to such
options, warrants or restricted stock; and




     (i) in addition to cash dividends, payments and distributions expressly permitted by
this Section 7.7, the Borrower may make cash dividends, payments and distributions in an
aggregate amount not to exceed 2.5% of Consolidated Tangible Assets.


For the purposes of this Section 7.7, if the Convertible Notes Indenture is amended, modified or
otherwise supplemented or any provision thereof is waived after the Closing Date, any payments made
with respect to the Convertible Notes in excess of principal, interest and other fees payable with
respect to the Convertible Notes prior to such amendment, modification, supplement or waiver
because of such amendment, modification, supplement or waiver through and including the final
redemption, repurchase or retirement of the Convertible Notes shall be deemed to be a dividend
subject to the provisions of this Section 7.7.




     Section 7.8 Limitation on Investments, Loans and Advances.



     Make any advance, loan, extension of credit or capital contribution to, or purchase any stock,
bonds, notes, debentures or other securities of or any assets constituting a business unit of, or
make any other investment, in cash or by transfer of assets or property, in (each an
“Investment”), any other Person, except:




     (a) extensions of trade credit in the ordinary course of business;




     (b) Investments in cash and Cash Equivalents;




     (c) Investments existing on the Closing Date;




     (d) Investments in notes receivable and other instruments and securities obtained in
connection with transactions permitted by 
Section 7.6(d);



84









 






     (e) loans and advances to officers, directors or employees of the Borrower or any of
its Subsidiaries (i) in the ordinary course of business for travel and entertainment
expenses, (ii) existing on the Closing Date, (iii) made after the Closing Date for
relocation expenses in the ordinary course of business, (iv) made for other purposes in an
aggregate amount (as to the Borrower and all of its Subsidiaries), together with the
aggregate amount of all Guarantee Obligations permitted pursuant to Section 7.4(d)(iii), of
up to $5,000,000 outstanding at any time and (v) relating to indemnification or
reimbursement of any officers, directors or employees in respect of liabilities relating to
their serving in any such capacity or as otherwise specified in Section 7.10;




     (f) loans and advances to Management Investors in connection with the purchase by such
Management Investors of Capital Stock of any Parent Entity (so long as such Parent Entity
applies an amount equal to the net cash proceeds of such purchases to, directly or
indirectly, make capital contributions to, or purchase Capital Stock of, the Borrower or
applies such proceeds to pay Parent Entity expenses) or the Borrower of up to $10,000,000
outstanding at any one time;




     (g) Investments by the Borrower or any Subsidiary in the Borrower or any other
Subsidiary;




     (h) acquisitions expressly permitted by Section 7.9;




     (i) Investments of the Borrower and its Subsidiaries under Interest Rate Protection
Agreements or under Permitted Hedging Arrangements;




     (j) Investments in the nature of pledges or deposits with respect to leases or
utilities provided to third parties in the ordinary course of business or otherwise
described in Sections 7.3(c), 7.3(d) or 7.3(f);




     (k) Investments representing non-cash consideration received by the Borrower or any of
its Subsidiaries in connection with any Disposition or Asset Sale, provided that in
the case of any Disposition or Asset Sale permitted under Sections 7.6(h) or 7.6(i), such
non-cash consideration constitutes not more than 25% of the aggregate consideration received
in connection with such Disposition or Asset Sale and any such non-cash consideration
received by the Borrower or any other Loan Party is pledged to the Collateral Agent for the
benefit of the Lenders pursuant to the Security Documents;




     (l) Investments by the Borrower or any of its Subsidiaries in a Person in connection
with a joint venture or similar arrangement in respect of which no other co-investor or
other Person has a greater legal or beneficial ownership interest than the Borrower or such
Subsidiary in an aggregate amount not to exceed an amount equal to $10,000,000 outstanding
at any time; provided that (i) such amount shall be increased by an amount equal to
$2,500,000 on each anniversary of the Closing Date, so long as no Default or Event of
Default shall have occurred and be continuing on any date on which such amount is to be
increased, (ii) such amount and any increase in such amount permitted by clause (i) shall be
reduced by the aggregate principal amount of Indebtedness in respect of Guarantee
Obligations permitted by Section 7.4(n), (iii) the



85









 







Borrower or such Subsidiary complies with the provisions of Section 6.9(b) hereof, if
applicable, with respect to such ownership interest;




     (m) Investments in industrial development or revenue bonds or similar obligations
secured by property or assets leased to and operated by the Borrower or any of its
Subsidiaries that were issued in connection with the financing or refinancing of such
property or assets, so long as the Borrower or any such Subsidiary may obtain title to such
property or assets at any time by optionally canceling such bonds or obligations, paying a
nominal fee and terminating such financing transaction;




     (n) Investments representing evidences of Indebtedness, securities or other property
received from another Person by the Borrower or any of its Subsidiaries in connection with
any bankruptcy proceeding or other reorganization of such other Person or as a result of
foreclosure, perfection or enforcement of any Lien or exchange for evidences of
Indebtedness, securities or other property of such other Person held by the Borrower or any
of its Subsidiaries; provided that any such securities or other property received by
the Borrower or any other Loan Party is pledged to the Collateral Agent for the benefit of
the Lenders pursuant to the Security Documents;




     (o) any Investment to the extent made using Capital Stock of the Borrower (other than
Disqualified Capital Stock) or Capital Stock of any Parent Entity as consideration;




     (p) in addition to Investments otherwise expressly permitted by this Section 7.8,
Investments by the Borrower or any of its Subsidiaries in an aggregate amount outstanding at
any time not to exceed the greater of (x) 4.5% of Consolidated Tangible Assets and (y)
$25,000,000; provided that (in the case of this clause (y)) such amount shall be
increased by the amount of Cumulative Excess Cash Flow Not Otherwise Applied (which shall be
available for use hereunder only at any time that the Consolidated Leverage Ratio of the
Borrower as at the last day of the Most Recent Four Quarter Period is less than or equal to
4.00 to 1.00);




     (q) any Investment in an amount that does not exceed the Available Amount immediately
prior to the time of the making of such Investment; provided that no Default or
Event of Default has occurred and is continuing or would result therefrom;




     (r) any Investment in an amount that does not exceed the Available Excluded
Contribution Amount immediately prior to the time of the making of such Investment; and




     (s) any Investment expressly permitted by Section 7.7.



     For purposes of determining compliance with this Section 7.8, in the event that any Investment
meets the criteria of more than one of the types of Investments described in clauses (a) through
(s) above, the Borrower, in its sole discretion, shall classify such item of Investment and may
include the amount and type of such Investment in one or more of such clauses (including in part
under one such clause and in part under another such clause).



86









 





     Section 7.9 Limitations on Certain Acquisitions.



     Acquire by purchase or otherwise all the business or assets of, or stock or other evidences of
beneficial ownership of, any Person, except that the Borrower and its Subsidiaries shall be allowed
to make any such acquisition so long as:




     (a) such acquisition is expressly permitted by Section 7.5, or




     (b) the aggregate consideration paid by the Borrower and its Subsidiaries for such
acquisition (including cash and Indebtedness incurred or assumed in connection with such
acquisition) consists of any combination of:




     (i) Capital Stock of the Borrower or any Parent Entity; and/or




     (ii) Cash, property and/or Indebtedness (whether incurred or assumed) in an
aggregate amount not exceeding the greater of (x) the sum of (A) the aggregate Net
Cash Proceeds of all Asset Sales pursuant to Section 7.6 not required to be applied
to a mandatory prepayment of the Term Loans pursuant to Section 3.4(c)(i)(2) plus
(B) Cumulative Excess Cash Flow Not Otherwise Applied and (y) the Available Amount
immediately prior to the time of payment of such cash consideration pursuant to this
clause (ii)(y); and/or




     (iii) Cash, property and/or Indebtedness (whether incurred or assumed) in an
aggregate amount not exceeding the Available Excluded Contribution Amount
immediately prior to the time of payment of such cash consideration pursuant to this
clause (iii); and/or




     (iv) other cash, property and Indebtedness (whether incurred or assumed) in an
aggregate amount that, when aggregated with all other amounts of such cash and
property paid, and Indebtedness incurred or assumed, in each case in reliance on
this clause (iv), does not exceed $20,000,000 in the aggregate since the Closing
Date; or



     (c) (i) immediately after giving effect to such acquisition, no Default or Event of Default
shall have occurred and be continuing as a result of such acquisition, (ii) the Consolidated
Leverage Ratio for the Most Recent Four Quarter Period, calculated on a pro forma basis giving
effect to such acquisition, is equal to or less than either (x) 4.00 to 1.00 or (y) the
Consolidated Leverage Ratio for the Most Recent Four Quarter Period prior to giving effect such
acquisition (such calculation to be made in a manner reasonably satisfactory to the Administrative
Agent and evidenced by a certificate of a Responsible Officer of the Borrower delivered to the
Administrative Agent (which shall promptly deliver copies to each Lender) promptly upon or prior to
the consummation of such acquisition), and (iii) the acquired Person and its Subsidiaries (to the
extent the same become Wholly Owned Domestic Subsidiaries) shall become Guarantors pursuant to the
terms of Section 6.9(b).



87









 





     Section 7.10 Limitation on Transactions with Affiliates.



     Enter into any transaction, including any purchase, sale, lease or exchange of property or the
rendering of any service, with any Affiliate unless such transaction is (a) otherwise permitted
under this Agreement, and (b) upon terms no less favorable to the Borrower or such Subsidiary, as
the case may be, than it would obtain in a comparable arm’s length transaction with a Person which
is not an Affiliate; provided that nothing contained in this Section 7.10 shall be deemed
to prohibit:




     (a) the Borrower or any of its Subsidiaries from entering into or performing any
consulting, management or employment agreements or other compensation arrangements with a
director, officer or employee of the Borrower or any of its Subsidiaries that provides for
annual aggregate base compensation not in excess of $2,000,000 for each such director,
officer or employee;




     (b) the Borrower or any of its Subsidiaries from entering into or performing an
agreement with any CD&R Investor or any Affiliate of any CD&R Investor for the rendering of
management, consulting or financial advisory services for compensation not to exceed in the
aggregate $2,000,000 per year plus reasonable out-of-pocket expenses;




     (c) the payment of transaction expenses in connection with this Agreement or any of the
Transactions;




     (d) the Borrower or any of its Subsidiaries from entering into, making payments
pursuant to and otherwise performing an indemnification and contribution agreement in favor
of any Permitted Holder and each person who is or becomes a director, officer, agent or
employee of the Borrower or any of its Subsidiaries or any Parent Entity, in respect of
liabilities (A) arising under the Securities Act, the Exchange Act and any other applicable
securities laws or otherwise, in connection with any offering of securities by any Parent
Entity (provided that, if such Parent Entity shall own any material assets other
than the Capital Stock of the Borrower or another Parent Entity, or other assets relating to
the ownership interest of such Parent Entity in the Borrower or another Parent Entity, such
liabilities shall be limited to the reasonable and proportional share, as determined by the
Borrower in its reasonable discretion, of such liabilities relating or allocable to the
ownership interest of such Parent Entity in the Borrower or another Parent Entity and such
other related assets) or the Borrower or any of its Subsidiaries, (B) incurred to third
parties for any action or failure to act of the Borrower or any of its Subsidiaries or any
Parent Entity or any of their predecessors or successors, (C) arising out of the performance
by any Affiliate of any CD&R of management consulting or financial advisory services
provided to the Borrower or any of its Subsidiaries or any Parent Entity, (D) arising out of
the fact that any indemnitee was or is a director, officer, agent or employee of the
Borrower or any of its Subsidiaries or any Parent Entity, or is or was serving at the
request of any such corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or enterprise or (E) to the fullest extent
permitted by Delaware or other applicable state law, arising out of any breach or alleged
breach by such indemnitee of his or her fiduciary



88









 







duty as a director or officer of the Borrower or any of its Subsidiaries or any Parent
Entity;




     (e) the Borrower or any of its Subsidiaries from (i) performing any agreements or
commitments with or to any Affiliate existing on the Closing Date (including the Investment
Documents) or (ii) entering into and performing any Tax Sharing Agreement;




     (f) any transaction permitted under Sections 3.4(b), 7.4, 7.5, 7.7, 7.8(e) or 7.8(f),
and any transaction with a Wholly Owned Subsidiary of the Borrower;




     (g) the Borrower from paying to CD&R, any CD&R Investor or any of their respective
Affiliates fees of up to $8,250,000 in the aggregate, plus out-of-pocket expenses, in
connection with the Transactions;




     (h) the Transactions and all transactions relating thereto and agreements in connection
therewith, including in connection with the Investment Documents; and




     (i) any issuance or sale of Capital Stock of the Borrower or capital contribution to
the Borrower.



     For purposes of this Section 7.10, (A) any transaction with any Affiliate shall be deemed to
have satisfied the standard set forth in clause (b) of the first sentence hereof if (i) such
transaction is approved by a majority of the Disinterested Directors of the board of directors of
any Parent Entity, the Borrower or such Subsidiary, or (ii) in the event that at the time of any
such transaction, there are no Disinterested Directors serving on the board of directors of any
Parent Entity, the Borrower or such Subsidiary, such transaction shall be approved by a nationally
recognized expert with expertise in appraising the terms and conditions of the type of transaction
for which approval is required, and (B) “Disinterested Director” shall mean, with respect
to any Person and transaction, a member of the board of directors of such Person who does not have
any material direct or indirect financial interest in or with respect to such transaction.



     Section 7.11 Limitation on Optional Payments and Modifications of Debt Instruments and
Other Documents.



     (a) Make any optional payment or prepayment on or optional repurchase or redemption of any
Subordinated Indebtedness, other than the Convertible Notes, including any optional payments on
account of, or for a sinking or other analogous fund for, the repurchase, redemption, defeasance or
other acquisition thereof, except optional payments, prepayments, repurchases, redemptions,
defeasance or other acquisition of such Subordinated Indebtedness (x) in an amount that does not
exceed the Cumulative Excess Cash Flow Not Otherwise Applied so long as the Consolidated Leverage
Ratio of the Borrower for the Most Recent Four Quarter Period (after giving effect to such payment,
prepayment, repurchase, redemption, defeasance or other acquisition) is less than or equal to 4.00
to 1.00, (y) in an amount that does not exceed the sum of (1) the Available Amount plus (2) the
Available Excluded Contribution Amount immediately prior to the time of making of such optional
payment, prepayment, repurchase or



89









 




redemption or (z) out of the Net Proceeds of, or in exchange for Subordinated Indebtedness or
Capital Stock of the Borrower or any Parent Entity.




     (b) In the event of the occurrence of a Change of Control, repurchase or repay any
Subordinated Indebtedness or any portion thereof, unless the Borrower shall have (i) made payment
in full of the Term Loans and any other amounts then due and owing to any Lender or the
Administrative Agent hereunder and under any Note or (ii) made an offer to pay the Term Loans and
any amounts then due and owing to each Lender and the Administrative Agent hereunder and under any
Note and shall have made payment in full thereof to each such Lender or the Administrative Agent
which has accepted such offer.



     (c) Amend, supplement, waive or otherwise modify any of the provisions of any documents
governing Subordinated Indebtedness (including pursuant to an extension, renewal, replacement or
refinancing thereof) which amends, supplements, waives, or otherwise modifies any subordination
provisions contained therein in any manner that is adverse to the Lenders in any material respect.



     (d) Amend, supplement, waive or otherwise modify any of the terms and conditions of the Tax
Sharing Agreement in any manner that would increase the amounts payable by Borrower or any of its
Subsidiaries thereunder or otherwise amend, supplement, waive or otherwise modify any of the terms
and conditions of the Tax Sharing Agreement except to the extent that any such amendment,
supplement, waiver or modification could not reasonably be expected to have a Material Adverse
Effect.



     Section 7.12 Limitation on Lines of Business. Enter into any business, either
directly or through any Subsidiary or joint venture or similar arrangement described in Section
7.8(l), except for those businesses of the same general type as those in which the Borrower and its
Subsidiaries are engaged on the Closing Date or which are reasonably related thereto, taken as a
whole, and any other business that in the aggregate is not material to the Borrower and its
Subsidiaries, taken as a whole.



ARTICLE VIII




EVENTS OF DEFAULT



     Section 8.1 Defaults. If any of the following events shall occur and be continuing:




     (a) The Borrower shall fail to pay any principal of any Term Loan when due in
accordance with the terms hereof (whether at stated maturity, by mandatory prepayment or
otherwise); or the Borrower shall fail to pay any interest on any Term Loan, or any other
amount payable hereunder, within five (5) days after any such interest or other amount
becomes due in accordance with the terms hereof; or




     (b) Any representation or warranty made or deemed made by any Loan Party herein or in
any other Loan Document (or in any amendment, modification or supplement hereto or thereto)
or which is contained in any certificate furnished at any time by or on behalf of any Loan
Party pursuant to this Agreement or any such other Loan Document



90









 







shall prove to have been incorrect in any material respect on or as of the date made or
deemed made; or




     (c) Any Loan Party shall default in the observance or performance of any agreement
contained in Section 6.7(a) or Article VII of this Agreement or Section 5.2.2 of the
Guarantee and Collateral Agreement; provided that, in the case of a default in the
observance or performance of its obligations under Section 6.7(a) hereof, such default shall
have continued unremedied for a period of two days after a Responsible Officer of the
Borrower shall have discovered or should have discovered such default, and provided
further that, in the case of a default in the observance of or compliance with its
obligations under Section 7.1(a) hereof for any four fiscal quarter period, such default
shall have continued unremedied for a period of five Business Days after the Calculation
Date with respect to such period; or




     (d) Any Loan Party shall default in the observance or performance of any other
agreement contained in this Agreement or any other Loan Document (other than as provided in
paragraphs (a) through (c) of this Article VIII), and such default shall continue unremedied
for a period ending on the earlier of (i) the date 32 days after a Responsible Officer of
the Borrower shall have discovered or should have discovered such default and (ii) the date
15 days after written notice has been given to the Borrower by the Administrative Agent or
the Required Lenders; or




     (e) The Borrower or any of its Subsidiaries shall (i) default in (x) any payment of
principal of or interest on any Indebtedness in excess of $15,000,000 or (y) in the payment
of any Guarantee Obligation in excess of $15,000,000, beyond the period of grace, if any,
provided in the instrument or agreement under which such Indebtedness or Guarantee
Obligation was created; or (ii) default in the observance or performance of any other
agreement or condition relating to any Indebtedness or Guarantee Obligation referred to in
clause (i) above or contained in any instrument or agreement evidencing, securing or
relating thereto, or any other event shall occur or condition exist, the effect of which
default or other event or condition is to cause, or to permit the holder or holders of such
Indebtedness or beneficiary or beneficiaries of such Guarantee Obligation (or a trustee or
agent on behalf of such holder or holders or beneficiary or beneficiaries) to cause, with
the giving of notice or lapse of time if required, such Indebtedness to become due prior to
its stated maturity or such Guarantee Obligation to become payable (an
“Acceleration”), and such time shall have lapsed and, if any notice (a “Default
Notice”) shall be required to commence a grace period or declare the occurrence of an
event of default before notice of Acceleration may be delivered, such Default Notice shall
have been given, and (in the case of any Indebtedness or Guarantee Obligation created under
the ABL Facility Documents) either a further period of 30 days shall have elapsed or such
Acceleration of such Indebtedness or Guarantee Obligation shall have occurred; or




     (f) If (i) any Loan Party or any Material Subsidiaries of the Borrower shall commence
any case, proceeding or other action (A) under any existing or future law of any
jurisdiction, domestic or foreign, relating to bankruptcy, insolvency, reorganization or
relief of debtors, seeking to have an order for relief entered with respect to it, or
seeking to adjudicate it a bankrupt or insolvent, or seeking reorganization, arrangement,



91









 







adjustment, winding-up, liquidation, dissolution, composition or other similar relief
with respect to it or its debts, or (B) seeking appointment of a receiver, interim receiver,
receivers, receiver and manager, trustee, custodian, conservator or other similar official
for it or for all or any substantial part of its assets, or any Loan Party or any Material
Subsidiaries of the Borrower shall make a general assignment for the benefit of its
creditors; or (ii) there shall be commenced against any Loan Party or any Material
Subsidiaries of the Borrower any case, proceeding or other action of a nature referred to in
clause (i) above which (A) results in the entry of an order for relief or any such
adjudication or appointment or (B) remains undismissed, undischarged, unstayed or unbonded
for a period of 60 days; or (iii) there shall be commenced against any Loan Party or any
Material Subsidiaries of the Borrower any case, proceeding or other action seeking issuance
of a warrant of attachment, execution, distraint or similar process against all or any
substantial part of its assets which results in the entry of an order for any such relief
which shall not have been vacated, discharged, stayed or bonded pending appeal within 60
days from the entry thereof; or (iv) any Loan Party or any Material Subsidiaries of the
Borrower shall take any corporate action in furtherance of, or indicating its consent to,
approval of, or acquiescence in, any of the acts set forth in clause (i), (ii), or (iii)
above; or (v) any Loan Party or any Material Subsidiaries of the Borrower shall be generally
unable to, or shall admit in writing its general inability to, pay its debts as they become
due; or




     (g) Any Person shall engage in any “prohibited transaction” (as defined in Section 406
of ERISA or Section 4975 of the Code) involving any Plan, (ii) any “accumulated funding
deficiency” (as defined in Section 302 of ERISA), whether or not waived, shall exist with
respect to any Plan or any Lien in favor of the PBGC or a Plan shall arise on the assets of
either of the Borrower or any Commonly Controlled Entity, (iii) a Reportable Event shall
occur with respect to, or proceedings shall commence to have a trustee appointed, or a
trustee shall be appointed, to administer or to terminate, any Single Employer Plan, which
Reportable Event or commencement of proceedings or appointment of a trustee is in the
reasonable opinion of the Administrative Agent likely to result in the termination of such
Plan for purposes of Title IV of ERISA, (iv) any Single Employer Plan shall terminate for
purposes of Title IV of ERISA other than a standard termination pursuant to Section 4041(b)
of ERISA, (v) either of the Borrower or any Commonly Controlled Entity shall, or in the
reasonable opinion of the Administrative Agent is reasonably likely to, incur any liability
in connection with a withdrawal from, or the Insolvency or Reorganization of, a
Multiemployer Plan, or (vi) any other event or condition shall occur or exist with respect
to a Plan; and in each case in clauses (i) through (vi) above, such event or condition,
together with all other such events or conditions, if any, could be reasonably expected to
result in a Material Adverse Effect; or




     (h) One or more judgments or decrees shall be entered against the Borrower or any of
its Subsidiaries involving in the aggregate at any time a liability (net of any insurance or
indemnity payments actually received in respect thereof prior to or within 60 days from the
entry thereof, or to be received in respect thereof in the event any appeal thereof shall be
unsuccessful) of $15,000,000 or more, and all such judgments or decrees shall not have been
vacated, discharged, stayed or bonded pending appeal within 60 days from the entry thereof;
or



92









 






     (i) Any of the Security Documents shall cease for any reason to be in full force and
effect (other than pursuant to the terms hereof or thereof), or any Loan Party which is a
party to any of the Security Documents shall so assert in writing, or (ii) the Lien created
by any of the Security Documents shall cease to be perfected and enforceable in accordance
with its terms or of the same effect as to perfection and priority purported to be created
thereby with respect to any significant portion of the Collateral (other than in connection
with any termination of such Lien in respect of any Collateral as permitted hereby or by any
Security Document), and such failure of such Lien to be perfected and enforceable with such
priority shall have continued unremedied for a period of 20 days; or




     (j) A Change of Control shall have occurred;


then, and in any such event, (A) if such event is an Event of Default specified in clause
(i) or (ii) of paragraph (f) above with respect to the Borrower, automatically the Commitments, if
any, shall immediately terminate and the Term Loans hereunder (with accrued interest thereon) and
all other amounts owing under this Agreement shall immediately become due and payable, and (B) if
such event is any other Event of Default, either or both of the following actions may be taken:
(i) with the consent of the Required Lenders, the Administrative Agent may, or upon the request of
the Required Lenders the Administrative Agent shall, by notice to the Borrower, declare the
Commitments to be terminated forthwith, whereupon the Commitments, if any, shall immediately
terminate; and (ii) with the consent of the Required Lenders, the Administrative Agent may, or upon
the request of the Required Lenders, the Administrative Agent shall, by notice to the Borrower,
declare the Term Loans hereunder (with accrued interest thereon) and all other amounts owing under
this Agreement to be due and payable forthwith, whereupon the same shall immediately become due and
payable.




     Section 8.2 Waiver of Prior Defaults. Effective as of the Closing Date, the Lenders
and the Administrative Agent hereby irrevocably waive any Default or Event of Default in
existence under the terms and provisions of the Original Credit Agreement immediately prior to the
effectiveness of the amendment and restatement of the Original Credit Agreement by this Agreement,
and any right or remedy with respect thereto under or relating to any Loan Document or any Credit
Document. For purposes of the preceding sentence, the terms “Default”, “Event of Default” and
“Credit Document” are used as defined in the Original Credit Agreement.



     Section 8.3 Waiver of Notices. Except as expressly provided above in this Article
VIII, presentment, demand, protest and all other notices of any kind are hereby expressly waived.



ARTICLE IX




THE AGENTS AND THE OTHER REPRESENTATIVES



     Section 9.1 Appointment.



     Each Lender hereby irrevocably designates and appoints Wachovia Bank, National Association as
the Administrative Agent and Collateral Agent of such Lender under this Agreement and the other
Loan Documents, and each such Lender irrevocably authorizes



93









 




Wachovia Bank, National Association, as Administrative Agent for such Lender, to take such
action on its behalf under the provisions of this Agreement and the other Loan Documents and to
exercise such powers and perform such duties as are expressly delegated to or required of the
Administrative Agent by the terms of this Agreement and the other Loan Documents, together with
such other powers as are reasonably incidental thereto. Notwithstanding any provision to the
contrary elsewhere in this Agreement, the Administrative Agent and the Other Representatives shall
not have any duties or responsibilities, except, in the case of the Administrative Agent and the
Collateral Agent, those expressly set forth herein, or any fiduciary relationship with any Lender,
and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be
read into this Agreement or any other Loan Document or otherwise exist against the Administrative
Agent or the Other Representatives. Each of the Agents may perform any of their respective duties
under this Agreement, the other Loan Documents and any other instruments and agreements referred to
herein or therein by or through its respective officers, directors, agents, employees or affiliates
(it being understood and agreed, for avoidance of doubt and without limiting the generality of the
foregoing, that the Administrative Agent and Collateral Agent may perform any of their respective
duties under the Security Documents by or through one or more of their respective affiliates).




     Section 9.2 Delegation of Duties.



     In performing its functions and duties under this Agreement, each Agent shall act solely as
agent for the Lenders and, as applicable, the other Secured Parties, and no Agent assumes any (and
shall not be deemed to have assumed any) obligation or relationship of agency or trust with or for
the Borrower or any of its Subsidiaries. Each Agent may execute any of its duties under this
Agreement and the other Loan Documents by or through agents or attorneys-in-fact (including the
Collateral Agent in the case of the Administrative Agent), and shall be entitled to advice of
counsel concerning all matters pertaining to such duties. No Agent shall be responsible for the
negligence or misconduct of any agents or attorneys-in-fact or counsel selected by it with
reasonable care.



     Section 9.3 Exculpatory Provisions.



     None of the Administrative Agent or any Other Representative nor any of their officers,
directors, employees, agents, attorneys-in-fact or Affiliates shall be (a) liable for any action
taken or omitted to be taken by such Person under or in connection with this Agreement or any other
Loan Document (except for the gross negligence or willful misconduct of such Person or any of its
officers, directors, employees, agents, attorneys-in-fact or Affiliates) or (b) responsible in any
manner to any of the Lenders for (i) any recitals, statements, representations or warranties made
by the Borrower or any other Loan Party or any officer thereof contained in this Agreement or any
other Loan Document or in any certificate, report, statement or other document referred to or
provided for in, or received by the Administrative Agent or any Other Representative under or in
connection with, this Agreement or any other Loan Document, (ii) for the value, validity,
effectiveness, genuineness, enforceability or sufficiency of this Agreement or any Notes or any
other Loan Document, (iii) for any failure of the Borrower or any other Loan Party to perform its
obligations hereunder or under any other Loan Document, (iv) the performance or observance of any
of the terms, provisions or conditions of this Agreement or any other Loan Document, (v) the
satisfaction of any of the conditions precedent set forth in Article V, or (vi) the existence or



94









 




possible existence of any Default or Event of Default. Neither the Administrative Agent nor
any Other Representative shall be under any obligation to any Lender to ascertain or to inquire as
to the observance or performance of any of the agreements contained in, or conditions of, this
Agreement or any other Loan Document, or to inspect the properties, books or records of the
Borrower or any other Loan Party. Each Lender agrees that, except for notices, reports and other
documents expressly required to be furnished to the Lenders by the Administrative Agent hereunder
or given to the Administrative Agent for the account of or with copies for the Lenders, the
Administrative Agent and the Other Representatives shall not have any duty or responsibility to
provide any Lender with any credit or other information concerning the business, operations,
property, condition (financial or otherwise), prospects or creditworthiness of the Borrower or any
other Loan Party which may come into the possession of the Administrative Agent and the Other
Representatives or any of their officers, directors, employees, agents, attorneys-in-fact or
Affiliates.




     Section 9.4 Reliance by the Administrative Agent.



     The Administrative Agent shall be entitled to rely, and shall be fully protected (and shall
have no liability to any Person) in relying, upon any writing, resolution, notice, consent,
certificate, affidavit, letter, telecopy, telex or teletype message, statement, order or other
document or conversation believed by it to be genuine and correct and to have been signed, sent or
made by the proper Person or Persons and upon advice and statements of legal counsel (including
counsel to the Borrower), independent accountants and other experts selected by the Administrative
Agent. The Administrative Agent may deem and treat the payee of any Note as the owner thereof for
all purposes unless such Note shall have been transferred in accordance with Section 10.6 and all
actions required by such Section in connection with such transfer shall have been taken. Any
request, authority or consent of any Person or entity who, at the time of making such request or
giving such authority or consent, is the holder of any Note shall be conclusive and binding on any
subsequent holder, transferee, assignee or endorsee, as the case may be, of such Note or of any
Note or Notes issued in exchange therefor. The Administrative Agent shall be fully justified as
between itself and the Lenders in failing or refusing to take any action under this Agreement or
any other Loan Document unless it shall first receive such advice or concurrence of the Required
Lenders and/or such other requisite percentage of the Lenders as is required pursuant to Section
10.1(a) as it deems appropriate or it shall first be indemnified to its satisfaction by the Lenders
against any and all liability and expense which may be incurred by it by reason of taking or
continuing to take any such action. The Administrative Agent shall in all cases be fully protected
in acting, or in refraining from acting, under this Agreement and any Notes and the other Loan
Documents in accordance with a request of the Required Lenders and/or such other requisite
percentage of the Lenders as is required pursuant to Section 10.1(a), and such request and any
action taken or failure to act pursuant thereto shall be binding upon all the Lenders and all
future holders of the Term Loans.



     Section 9.5 Notice of Default.



     The Administrative Agent shall not be deemed to have knowledge or notice of the occurrence of
any Default or Event of Default hereunder unless the Administrative Agent has received notice from
a Lender or the Borrower referring to this Agreement, describing such Default or Event of Default
and stating that such notice is a “notice of default”. In the event that



95









 




the Administrative Agent receives such a notice, the Administrative Agent shall give prompt
notice thereof to the Lenders. The Administrative Agent shall take such action reasonably promptly
with respect to such Default or Event of Default as shall be directed by the Required Lenders
and/or such other requisite percentage of the Lenders as is required pursuant to Section 10.1(a);
provided that unless and until the Administrative Agent shall have received such
directions, the Administrative Agent may (but shall not be obligated to) take such action, or
refrain from taking such action, with respect to such Default or Event of Default as it shall deem
advisable in the best interests of the Lenders.




     Section 9.6 Acknowledgements and Representations by Lenders.



     Each Lender expressly acknowledges that none of the Administrative Agent or the Other
Representatives nor any of their officers, directors, employees, agents, attorneys-in-fact or
Affiliates has made any representations or warranties to it and that no act by the Administrative
Agent or any Other Representative hereafter taken, including any review of the affairs of the
Borrower or any other Loan Party, shall be deemed to constitute any representation or warranty by
the Administrative Agent or such Other Representative to any Lender. Each Lender represents to the
Administrative Agent, the Other Representatives and each of the Loan Parties that, independently
and without reliance upon the Administrative Agent, the Other Representatives or any other Lender,
and based on such documents and information as it has deemed appropriate, it has made and will
make, its own appraisal of and investigation into the business, operations, property, financial and
other condition and creditworthiness of the Borrower and the other Loan Parties, it has made its
own decision to make its Term Loans hereunder and enter into this Agreement and it will make its
own decisions in taking or not taking any action under this Agreement and the other Loan Documents
and, except as expressly provided in this Agreement, neither the Administrative Agent nor any Other
Representative shall have any duty or responsibility, either initially or on a continuing basis, to
provide any Lender or the holder of any Note with any credit or other information with respect
thereto, whether coming into its possession before the making of the Term Loans or at any time or
times thereafter. Each Lender represents to each other party hereto that it is a bank, savings and
loan association or other similar savings institution, insurance company, investment fund or
company or other financial institution which makes or acquires commercial loans in the ordinary
course of its business, that it is participating hereunder as a Lender for such commercial
purposes, and that it has the knowledge and experience to be and is capable of evaluating the
merits and risks of being a Lender hereunder. Each Lender acknowledges and agrees to comply with
the provisions of Section 10.6 applicable to the Lenders hereunder.



     Section 9.7 Indemnification.



     (a) The Lenders agree to indemnify each Agent (or any Affiliate thereof) (to the extent not
reimbursed by the Borrower or any other Loan Party and without limiting the obligation of the
Borrower to do so), ratably according to their respective Total Credit Percentages in effect on the
date on which indemnification is sought under this Section from and against any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind whatsoever which may at any time (including at any time following the
payment of the Term Loans) be imposed on, incurred by or asserted against the Administrative Agent
(or any Affiliate thereof) in any way relating to or arising out



96









 




of this Agreement, any of the other Loan Documents or the transactions contemplated hereby or
thereby or any action taken or omitted by any Agent (or any Affiliate thereof) under or in
connection with any of the foregoing; provided that no Lender shall be liable for the
payment of any portion of such liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements to the extent arising from (a) such Agent’s
gross negligence or willful misconduct or (b) claims made or legal proceedings commenced against
such Agent by any security holder or creditor thereof arising out of and based upon rights afforded
any such security holder or creditor solely in its capacity as such. The agreements in this
Section shall survive the payment of the Term Loans and all other amounts payable hereunder.




     (b) The agreements in this Section 9.7 shall survive the payment of all Borrower Obligations
and Guaranteed Obligations (each as defined in the Guarantee and Collateral Agreement).



     Section 9.8 The Administrative Agent and Other Representatives in Their Individual
Capacity.



     The Administrative Agent, the Other Representatives and their Affiliates may make loans to,
accept deposits from and generally engage in any kind of business with the Borrower or any other
Loan Party as though the Administrative Agent and the Other Representatives were not the
Administrative Agent or the Other Representatives hereunder and under the other Loan Documents.
With respect to Term Loans made or renewed by them and any Note issued to them, the Administrative
Agent and the Other Representatives shall have the same rights and powers under this Agreement and
the other Loan Documents as any Lender and may exercise the same as though they were not the
Administrative Agent or an Other Representative, and the terms “Lender” and “Lenders” shall include
the Administrative Agent and the Other Representatives in their individual capacities.



     Section 9.9 Collateral Matters.



     (a) Each Lender authorizes and directs the Collateral Agent to (x) enter into the Security
Documents and the Intercreditor Agreement for the benefit of the Lenders and the other Secured
Parties and (y) enter into any amendments, amendments and restatements, restatements or waivers of
or supplements to or other modifications to the Intercreditor Agreement or enter into a separate
intercreditor agreement in connection with the incurrence of any Loan Party or any Subsidiary
thereof of Additional Indebtedness (the “Intercreditor Agreement Supplement”) to permit
such Additional Indebtedness to be secured by a valid, perfected lien (with such priority as may be
designated by the relevant Loan Party or Subsidiary, to the extent such priority is permitted by
the Loan Documents). Each Lender hereby agrees, and each holder of any Note by the acceptance
thereof will be deemed to agree, that, except as otherwise set forth herein, any action taken by
the Collateral Agent or the Required Lenders in accordance with the provisions of this Agreement,
the Security Documents or the Intercreditor Agreement (as amended by any Intercreditor Agreement
Supplement), and the exercise by the Agents or the Required Lenders of the powers set forth herein
or therein, together with such other powers as are reasonably incidental thereto, shall be
authorized and binding upon all of the Lenders. The Collateral Agent is hereby authorized on
behalf of all of the Lenders, without the necessity of any notice to or further consent from any
Lender, from time to time, to take any action with



97









 




respect to any Collateral or Security Documents which may be necessary to perfect and maintain
perfected the security interest in and liens upon the Collateral granted pursuant to the Security
Documents.




     (b) The Lenders hereby authorize the Administrative Agent and the Collateral Agent, as
applicable, to, and the Administrative Agent and the Collateral Agent, as applicable, shall release
any Lien granted to or held by such Agent upon any Collateral (i) upon termination of the
Commitments and payment and satisfaction of all of the obligations under the Loan Documents at any
time arising under or in respect of this Agreement or the Loan Documents or the transactions
contemplated hereby or thereby, (ii) upon the sale or other Disposition of such Collateral (to a
Person other than a Loan Party) expressly permitted under Section 7.6, including sales in the
ordinary course of business, (iii) upon any merger, amalgamation, consolidation, sale, lease,
transfer or other Disposition expressly permitted under Section 7.5(d) and (iv) if approved,
authorized or ratified in writing by the Required Lenders (or such greater amount, to the extent
required by Section 10.1) or (v) as otherwise may be expressly provided in the relevant Security
Documents. Upon request by the Administrative Agent or the Collateral Agent, at any time, the
Lenders shall confirm in writing such Agent’s authority to release particular types or items of
Collateral pursuant to this Section 9.9.



     (c) The Lenders hereby authorize the Administrative Agent and the Collateral Agent, as the
case may be, in each case at its option and in its discretion, to enter into any amendment,
amendment and restatement, restatement, waiver, supplement or modification, and to make or consent
to any filings or to take any other actions, in each case as contemplated by Section 10.18. Upon
request by any Agent, at any time, the Lenders will confirm in writing the Administrative Agent’s
and the Collateral Agent’s authority under this subsection 9.9(c).



     (d) No Agent shall have any obligation whatsoever to the Lenders to assure that the Collateral
exists or is owned by the Borrower or any of its Subsidiaries or is cared for, protected or insured
or that the Liens granted to any Agent herein or pursuant hereto have been properly or sufficiently
or lawfully created, perfected, protected or enforced or are entitled to any particular priority,
or to exercise or to continue exercising at all or in any manner or under any duty of care,
disclosure or fidelity any of the rights, authorities and powers granted or available to the Agents
in this Section 9.9 or in any of the Security Documents, it being understood and agreed that in
respect of the Collateral, or any act, omission or event related thereto, each Agent may act in any
manner it may deem appropriate, in its sole discretion, given such Agent’s own interest in the
Collateral as Lender and that no Agent shall have any duty or liability whatsoever to the Lenders,
except for its gross negligence or willful misconduct.



     (e) Notwithstanding any provision herein to the contrary, any Security Document may be amended
(or amended and restated), restated, waived, supplemented or modified as contemplated by Section
10.18 with the written consent of the Agent party thereto and the Loan Party party thereto.



     (f) The Collateral Agent may, and hereby does, appoint the Administrative Agent as its agent
for the purposes of holding any Collateral and/or perfecting the Collateral Agent’s security
interest therein and for the purpose of taking such other action with respect to the collateral as
such Agents may from time to time agree.



98









 





     Section 9.10 Successor Agent.



     (a) Subject to the appointment of a successor as set forth herein, the Administrative Agent
and the Collateral Agent may resign or be removed as Administrative Agent or Collateral Agent,
respectively, under this Agreement and the other Loan Documents, as follows:




     (i) The Administrative Agent and the Collateral Agent may resign as Administrative
Agent or Collateral Agent, respectively, upon 10 days’ notice to the Lenders and the
Borrower.




     (ii) If the Administrative Agent or the Collateral Agent is a Defaulting Lender or an
Affiliate of a Defaulting Lender, either the Required Lenders or the Borrower may, upon 10
days’ notice to the Administrative Agent or Collateral Agent, as applicable, remove such
agent.




     (iii) If an ABL Default Event shall have occurred and be continuing, and the
Administrative Agent or Collateral Agent, as applicable, is an Affiliate of or the same
Person as the administrative agent or collateral agent under the ABL Facility Agreement, the
Required Lenders may, upon 10 days’ notice to the Administrative Agent or Collateral Agent,
as applicable, remove such agent.



     (b) If the Administrative Agent or Collateral Agent shall resign or be removed as
Administrative Agent or Collateral Agent, as applicable, under this Agreement and the other Loan
Documents, then the Required Lenders shall appoint from among the Lenders a successor agent for the
Lenders, which successor agent shall be subject to approval by the Borrower, whereupon such
successor agent shall succeed to the rights, powers and duties of the Administrative Agent or the
Collateral Agent, as applicable, and the term “Administrative Agent” or “Collateral Agent,” as
applicable, shall mean such successor agent effective upon such appointment and approval, and the
former Agent’s rights, powers and duties as Administrative Agent or Collateral Agent, as
applicable, shall be terminated, without any other or further act or deed on the part of such
former Agent or any of the parties to this Agreement or any holders of the Term Loans. After any
retiring Agent’s resignation or removal as Agent, the provisions of this Article IX shall inure to
its benefit as to any actions taken or omitted to be taken by it while it was Agent under this
Agreement and the other Loan Documents. Additionally, after any retiring Agent’s resignation as
such Agent, the provisions of this Section shall inure to its benefit as to any actions taken or
omitted to be taken by it while it was such Agent under this Agreement and the other Loan
Documents.



     (c) Any successor agent shall be subject to approval by the Borrower, which approval (i) shall
not be unreasonably withheld or delayed in the case of any successor agent that is a commercial
bank with a combined capital and surplus of at least $500,000,000 and (ii) may otherwise be
withheld by the Borrower in its sole discretion. It is understood and agreed that the Borrower
shall have no obligation to pay any fee to any successor agent that is greater than or in addition
to the fees payable to the Administrative Agent on the date hereof.



99









 





     Section 9.11 Other Representatives.



     None of the entities identified as joint bookrunners and joint lead arrangers pursuant to the
definition of Other Representative contained herein, shall have any duties or responsibilities
hereunder or under any other Loan Document in its capacity as such.



     Section 9.12 Withholding Tax.



     To the extent required by any applicable law, each Agent may withhold from any payment to any
Lender an amount equivalent to any applicable withholding tax, and in no event shall such Agent be
required to be responsible for or pay any additional amount with respect to any such withholding.
If the Internal Revenue Service or any other Governmental Authority asserts a claim that any Agent
did not properly withhold tax from amounts paid to or for the account of any Lender because the
appropriate form was not delivered or was not properly executed or because such Lender failed to
notify such Agent of a change in circumstances which rendered the exemption from or reduction of
withholding tax ineffective or for any other reason, such Lender shall indemnify such Agent fully
for all amounts paid, directly or indirectly, by such Agent as tax or otherwise, including any
penalties or interest and together with any expenses incurred.



ARTICLE X




MISCELLANEOUS



     Section 10.1 Amendments and Waivers.



     (a) Neither this Agreement nor any other Loan Document, nor any terms hereof or thereof, may
be amended, supplemented, modified or waived except in accordance with the provisions of this
Section 10.1. The Required Lenders may, or, with the written consent of the Required Lenders, the
Administrative Agent and the Collateral Agent may, from time to time, (x) enter into with the
respective Loan Parties hereto or thereto, as the case may be, written amendments, supplements or
modifications hereto and to the other Loan Documents for the purpose of adding any provisions to
this Agreement or to the other Loan Documents or changing, in any manner the rights or obligations
of the Lenders or the Loan Parties hereunder or thereunder or (y) waive at any Loan Party’s
request, on such terms and conditions as the Required Lenders, the Administrative Agent or the
Collateral Agent, as the case may be, may specify in such instrument, any of the requirements of
this Agreement or the other Loan Documents or any Default or Event of Default and its consequences;
provided, however, that no such waiver and no such amendment, supplement or
modification shall:




     (i) reduce the amount or extend the scheduled date of maturity of any Term Loan or of
any scheduled installment thereof under Section 2.3, or reduce or forgive the stated rate of
any interest, commission or fee payable hereunder (other than as a result of any waiver of
the applicability of any post-default increase in interest rates), or extend the scheduled
date of any payment thereof, or increase the amount or extend the expiration date of any
Lender’s Commitment, or change the currency in which any Term Loan is payable, in each case
without the consent of each Lender directly and adversely affected



100









 







thereby (it being understood that (x) waivers, amendment, supplements or modifications
of conditions precedent, covenants, Defaults or Events of Default or of a mandatory
reduction in the aggregate Commitment of all Lenders shall not constitute an increase of the
Commitment of any Lender, and that an increase in the available portion of any Commitment of
any Lender shall not constitute an increase in the Commitment of such Lender and (y) any
waiver, amendment, supplement or modification of Section 3.4 or Section 3.7 shall not be
subject to this clause (i));




     (ii) amend, modify or waive any provision of this Section 10.1(a) or reduce the
percentage specified in the definition of Required Lenders, or consent to the assignment or
transfer by the Borrower of any of its rights and obligations under this Agreement and the
other Loan Documents (other than pursuant to Section 7.5 or Section 10.6(a)), in each case
without the written consent of all the Lenders;




     (iii) release any Guarantor under any Security Document, or, in the aggregate (in a
single transaction or a series of related transactions), substantially all of the Collateral
without the consent of all of the Lenders, except as expressly permitted hereby or by any
Security Document (as such documents are in effect on the date hereof or, if later, the date
of execution and delivery thereof in accordance with the terms hereof);




     (iv) require any Lender to make Term Loans having an Interest Period of longer than six
months without the consent of such Lender; or




     (v) amend, modify or waive any provision of Article IX without the written consent of
the then Administrative Agent and of any Other Representative affected thereby;


provided further that, notwithstanding the foregoing, the Collateral Agent may, in
its discretion, release the Lien on Collateral valued in the aggregate not in excess of $10,000,000
in any fiscal year without the consent of any Lender.




     (b) Any waiver and any amendment, supplement or modification pursuant to this Section 10.1
shall apply to each of the Lenders and shall be binding upon the Loan Parties, the Lenders, the
Administrative Agent and all future holders of the Term Loans. In the case of any waiver, each of
the Loan Parties, the Lenders and the Administrative Agent shall be restored to their former
position and rights hereunder and under the other Loan Documents, and any Default or Event of
Default waived shall be deemed to be cured and not continuing; but no such waiver shall extend to
any subsequent or other Default or Event of Default, or impair any right consequent thereon.



     (c) Notwithstanding any provision herein to the contrary, this Agreement may be amended (or
amended and restated) with the written consent of the Required Lenders, the Administrative Agent
and the Borrowers (x) to add one or more additional credit facilities to this Agreement and to
permit the extensions of credit from time to time outstanding thereunder and the accrued interest
and fees in respect thereof to share ratably in the benefits of this Agreement and the other Loan
Documents with the existing Facilities and the accrued interest and fees in respect thereof, (y) to
include, as appropriate, the Lenders holding such credit facilities in any



101









 




required vote or action of the Required Lenders or of the Lenders of each Facility hereunder
and (z) to provide class protection for any additional credit facilities in a manner consistent
with those provided the original Facilities pursuant to the provisions of Section 10.1(a) as
originally in effect.




     (d) Notwithstanding the fact that the consent of all the Lenders is required in certain
circumstances as set forth in Section 10.1(a), (x) each Lender is entitled to vote as such Lender
sees fit on any bankruptcy reorganization plan that affects the Term Loans, and each Lender
acknowledges that the provisions of Section 1126(c) of the Bankruptcy Code supersedes the unanimous
consent provisions set forth herein and (y) the Required Lenders may consent to allow a Borrower or
Guarantor to use cash collateral in the context of a bankruptcy or insolvency proceeding.



     (e) If, in connection with any proposed change, waiver, discharge or termination of or to any
of the provisions of this Agreement and/or any other Loan Document as contemplated by Section
10.1(a), the consent of each Lender or each affected Lender, as applicable, is required and the
consent of the Required Lenders at such time is obtained but the consent of one or more of such
other Lenders whose consent is required is not obtained (each such other Lender, a
“Non-Consenting Lender”), then the Borrower may, on written notice to the Administrative
and the Non-Consenting Lender, replace such Non-Consenting Lender by causing such Lender to (and
such Lender shall be obligated to) assign pursuant to Section 10.6 (with the assignment fee and any
other costs and expenses to be paid by the Borrower in such instance) all of its rights and
obligations under this Agreement to one or more assignees; provided that neither the
Administrative Agent nor any Lender shall have any obligation to the Borrower to find a replacement
Lender; provided, further, that the applicable assignee shall have agreed to the
applicable change, waiver, discharge or termination of this Agreement and/or the other Loan
Documents; and provided, further, that all obligations of the Borrower owing to the
Non-Consenting Lender relating to the Term Loans and participations so assigned shall be paid in
full by the assignee Lender to such Non-Consenting Lender concurrently with such Assignment and
Acceptance. In connection with any such replacement under this Section 10.1(e), if the
Non-Consenting Lender does not execute and deliver to the Administrative Agent a duly completed
Assignment and Acceptance and/or any other documentation necessary to reflect such replacement
within a period of time deemed reasonable by the Borrower after the later of (a) the date on which
the replacement Lender executes and delivers such Assignment and Acceptance and/or such other
documentation and (b) the date as of which all obligations of the Borrower owing to the
Non-Consenting Lender relating to the Term Loans and participations so assigned shall be paid in
full by the assignee Lender to such Non-Consenting Lender, then such Non-Consenting Lender shall be
deemed to have executed and delivered such Assignment and Acceptance and/or such other
documentation as of such date and the Borrower shall be entitled (but not obligated) to execute and
deliver such Assignment and Acceptance and/or such other documentation on behalf of such
Non-Consenting Lender.



     Section 10.2 Notices.



     (a) All notices, requests, and demands to or upon the respective parties hereto to be
effective shall be in writing (including telecopy), and, unless otherwise expressly provided
herein, shall be deemed to have been duly given or made when delivered by hand, or three days



102









 




after being deposited in the mail, postage prepaid, or, in the case of telecopy notice,
electronic communication (including electronic message attachment and internet or intranet websites
reasonably approved by the Administrative Agent) or delivery by a nationally recognized overnight
courier, when received, addressed as follows in the case of the Borrower, the Administrative Agent
and the Collateral Agent, and as set forth in Schedule A in the case of the other parties hereto,
or to such other address as may be hereafter notified by the respective parties hereto and any
future holders of the Term Loans:




	 	 	 
	The Borrower:

	 	NCI Building Systems, Inc.
	 

	 	10943 N. Sam Houston Parkway W.
	 

	 	Houston, Texas 77064
	 

	 	Attention: Chief Financial Officer
	 

	 	Facsimile: 281-897-7837
	 

	 	Telephone: 281-897-7658
	 

	 	Email: mejohnson@ncilp.com
	 
	 	 
	with copies (which copies will not constitute notice) to:
	 
	 	 
	 

	 	Debevoise & Plimpton LLP
	 

	 	Attention: David A. Brittenham
	 

	 	919 Third Avenue
	 

	 	New York, New York 10022
	 

	 	Facsimile: 212-909-6836
	 

	 	Telephone: 212-909-6000
	 

	 	Email: dabrittenham@debevoise.com
	 
	 	 
	The Administrative Agent and the Collateral Agent:
	 
	 	 
	 

	 	Wells Fargo Securities, LLC
	 

	 	Attention: Patrick McKinnon
	 

	 	Facsimile: 704-374-3300
	 

	 	Telephone: 704-715-4433
	 

	 	Email: patrick.mckinnon@wachovia.com
	 
	 	 
	 

	 	Wells Fargo Bank, NA
	 

	 	21 Waterway Avenue, Suite 600
	 

	 	The Woodlands, TX 77380
	 

	 	Attention: Janet Ritter
	 

	 	Facsimile: 281-362-6611
	 

	 	Telephone: 281-362-6635
	 

	 	Email: ritterj@wellsfargo.com





provided that any notice, request or demand to or upon the Administrative Agent or the
Lenders pursuant to Sections 3.2, 3.4 or 3.7 shall not be effective until received.








103









 








     (b) Without in any way limiting the obligation of any Loan Party and its Subsidiaries to
confirm in writing any telephonic notice permitted to be given hereunder, the Administrative Agent
may prior to receipt of written confirmation act without liability upon the basis of such
telephonic notice, believed by the Administrative Agent in good faith to be from a Responsible
Officer.



     Section 10.3 No Waiver; Cumulative Remedies.



     No failure to exercise and no delay in exercising, on the part of the Administrative Agent,
any Lender or any Loan Party, any right, remedy, power or privilege hereunder or under the other
Loan Documents shall operate as a waiver thereof; nor shall any single or partial exercise of any
right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the
exercise of any other right, remedy, power or privilege. The rights, remedies, powers and
privileges herein provided are cumulative and not exclusive of any rights, remedies, powers and
privileges provided by law.



     Section 10.4 Survival of Representations and Warranties.



     All representations and warranties made hereunder and in the other Loan Documents (or in any
amendment, modification or supplement hereto or thereto) and in any certificate delivered pursuant
hereto or such other Loan Documents shall survive the execution and delivery of this Agreement and
the making of the Term Loans hereunder.



     Section 10.5 Payment of Expenses and Taxes.



     The Borrower agrees (a) to pay or reimburse the Agents and the Other Representatives for (1)
all their reasonable out-of-pocket costs and expenses incurred in connection with (i) the
syndication of the Facilities and the development, preparation, execution and delivery of, and any
amendment, supplement or modification to, this Agreement and the other Loan Documents and any other
documents prepared in connection herewith or therewith, (ii) the consummation and administration of
the transactions (including the syndication of the Commitments) contemplated hereby and thereby
(including, without limitation, any fees and expenses in connection with the resignation or removal
of the Administrative Agent pursuant to Section 9.10) and (iii) efforts to monitor the Term Loans
and verify, protect, evaluate, assess, appraise, collect, sell, liquidate or otherwise dispose of
any of the Collateral, and (2) (i) the reasonable fees and disbursements of a single firm of
counsel to Wachovia Bank, National Association and such other special or local counsel,
consultants, advisors, appraisers and auditors whose retention (other than during the continuance
of an Event of Default) is approved by the Borrower, (b) to pay or reimburse each Lender and the
Agents for all their reasonable costs and expenses incurred in connection with the enforcement or
preservation of any rights under this Agreement, the other Loan Documents and any other documents
prepared in connection herewith or therewith, including the fees and disbursements of counsel to
the Agents and the Lenders, (c) to pay, indemnify, or reimburse each Lender and the Agents for, and
hold each Lender and the Agents harmless from, any and all recording and filing fees and any and
all liabilities with respect to, or resulting from any delay in paying, stamp, excise and other
similar taxes, if any, which may be payable or determined to be payable in connection with the
execution and delivery of, or consummation or administration of any of the transactions
contemplated by, or any amendment,



104









 




supplement or modification of, or any waiver or consent under or in respect of, this
Agreement, the other Loan Documents and any such other documents, and (d) to pay, indemnify or
reimburse each Lender, each Agent, their respective affiliates, and their respective officers,
directors, trustees, employees, shareholders, members, attorneys and other advisors, agents and
controlling persons (each, an “Indemnitee”) for, and hold each Indemnitee harmless from and
against, any and all other liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever with respect to
the execution, delivery, enforcement, performance and administration of this Agreement, the other
Loan Documents and any such other documents, including any of the foregoing relating to the use of
proceeds of the Term Loans or the violation of, noncompliance with or liability under, any
Environmental Law applicable to the operations of the Borrower of any of its Subsidiaries or any of
the property of the Borrower or any of its Subsidiaries (all the foregoing in this clause (d),
collectively, the “Indemnified Liabilities”), provided that the Borrower shall not
have any obligation hereunder to the Administrative Agent, any other Agent or any Lender with
respect to Indemnified Liabilities arising from (i) the gross negligence or willful misconduct of
the Administrative Agent, any other Agent or any such Lender (or any of their respective directors,
trustees, officers, employees, agents, successors and assigns) or (ii) claims made or legal
proceedings commenced against the Administrative Agent, any other Agent or any such Lender by any
security holder or creditor thereof arising out of and based upon rights afforded any such security
holder or creditor solely in its capacity as such. No Indemnitee shall be liable for any
consequential or punitive damages in connection with the Facilities. All amounts due under this
Section shall be payable not later than 30 days after written demand therefor. Statements
reflecting amounts payable by the Loan Parties pursuant to this Section shall be submitted to the
address of the Borrower set forth in Section 10.2, or to such other Person or address as may be
hereafter designated by the Borrower in a notice to the Administrative Agent. Notwithstanding the
foregoing, except as provided in clauses (b) and (c) above, the Borrower shall have no obligation
under this Section 10.5 to any Indemnitee with respect to any Taxes. The agreements in this
Section shall survive repayment of the Term Loans and all other amounts payable hereunder.




     Section 10.6 Successors and Assigns; Participations and Assignments.



     (a) The provisions of this Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and assigns permitted hereby, except that (i) other
than in accordance with Section 7.5, none of the Loan Parties may assign or otherwise transfer any
of its rights or obligations hereunder without the prior written consent of each Lender (and any
attempted assignment or transfer by any Loan Party without such consent shall be null and void) and
(ii) no Lender may assign or otherwise transfer its rights or obligations hereunder except in
accordance with this Section.



     (b) (i) Subject to the conditions set forth in Section 10.6(b)(ii) below, any Lender other
than a Conduit Lender may, in the ordinary course of business and in accordance with applicable
law, assign to one or more assignees (each, an “Assignee”) all or a portion of its rights
and obligations under this Agreement (including its Tranche B Term Loan Commitment and/or Term
Loans, pursuant to an Assignment and Acceptance, substantially in the form of Exhibit F) with the
prior written consent (such consent not to be unreasonably withheld or delayed) of:



105









 






     (1) the Borrower, provided that no consent of the Borrower shall be
required for an assignment to a Lender, an affiliate of a Lender, an Approved Fund
(as defined below), a CD&R Holder or, if an Event of Default under Sections 8.1(a)
or 8.1(f) has occurred and is continuing, any other Person; provided, further, that
if any Lender assigns all or a portion of its rights and obligations under this
Agreement to one of its affiliates in connection with or in contemplation of the
sale or other disposition of its interest in such affiliate, the Borrower’s prior
written consent shall be required for such assignment; and




     (2) the Administrative Agent, provided that no consent of the
Administrative Agent shall be required for an assignment to a Lender, an affiliate
of a Lender or a CD&R Holder.




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




     (1) except in the case of an assignment to a Lender, an affiliate of a Lender
or an Approved Fund or an assignment of the entire remaining amount of the assigning
Lender’s Commitments or Term Loans under any Facility, the amount of the Commitments
or Term Loans of the assigning Lender subject to each such assignment (determined as
of the date the Assignment and Acceptance with respect to such assignment is
delivered to the Administrative Agent) shall not be less than $5,000,000 unless the
Borrower and the Administrative Agent otherwise consent, provided that (1)
no such consent of the Borrower shall be required if an Event of Default under
Section 8.1(a) or Section 8.1(f) has occurred and is continuing and (2) such amounts
shall be aggregated in respect of each Lender and its affiliates or Approved Funds,
if any;




     (2) the parties to each assignment shall execute and deliver to the
Administrative Agent an Assignment and Acceptance, together with a processing and
recordation fee of $3,500; provided that for concurrent assignments to two
or more Approved Funds such assignment fee shall only be required to be paid once in
respect of and at the time of such assignments; and




     (3) the Assignee, if it shall not be a Lender, shall deliver to the
Administrative Agent an administrative questionnaire.



     For the purposes of this Section 10.6, the term “Approved Fund” has the following
meaning: “Approved Fund” means any Person (other than a natural person) that is engaged in making,
purchasing, holding or investing in bank loans and similar extensions of credit in the ordinary
course and that is administered or managed by (a) a Lender, (b) an affiliate of a Lender or (c) an
entity or an affiliate of an entity that administers or manages a Lender.




     (iii) Subject to acceptance and recording thereof pursuant to paragraph (b)(iv) below,
from and after the effective date specified in each Assignment and Acceptance the Assignee
thereunder shall be a party hereto and, to the extent of the interest assigned by such
Assignment and Acceptance, have the rights and obligations of a Lender under this Agreement,
and the assigning Lender thereunder shall, to the extent of the interest



106









 







assigned by such Assignment and Acceptance, be released from its obligations under this
Agreement (and, in the case of an Assignment and Acceptance covering all of the assigning
Lender’s rights and obligations under this Agreement, such Lender shall cease to be a party
hereto but shall continue to be entitled to the benefits of (and bound by any related
obligations under) Sections 3.9, 3.10, 3.11, 3.12, 10.5 and 10.17). Any assignment or
transfer by a Lender of rights or obligations under this Agreement that does not comply with
this Section 10.6 shall be treated for purposes of this Agreement as a sale by such Lender
of a participation in such rights and obligations in accordance with paragraph (c) of this
Section.




     (iv) The Borrower hereby designates the Administrative Agent, and the Administrative
Agent agrees, to serve as the Borrower’s agent, solely for purposes of this Section 10.6, to
maintain at one of its offices in New York, New York a copy of each Assignment and
Acceptance delivered to it and a register for the recordation of the names and addresses of
the Lenders, and the Commitments of, and interest and principal amount of the Term Loans
owing to, each Lender pursuant to the terms hereof from time to time (the
“Register”). The entries in the Register shall be conclusive absent manifest error,
and the Borrower, the Administrative Agent and the Lenders shall treat each Person whose
name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all
purposes of this Agreement, notwithstanding notice to the contrary. The Register shall be
available for inspection by the Borrower and any Lender, at any reasonable time and from
time to time upon reasonable prior notice.




     (v) Upon its receipt of a duly completed Assignment and Acceptance executed by an
assigning Lender and an Assignee, the Assignee’s completed administrative questionnaire
(unless the Assignee shall already be a Lender hereunder), the processing and recordation
fee referred to in paragraph (b) of this Section and any written consent to such assignment
required by paragraph (b) of this Section, the Administrative Agent shall accept such
Assignment and Acceptance, record the information contained therein in the Register and give
prompt notice of such assignment and recordation to the Borrower. No assignment shall be
effective for purposes of this Agreement unless it has been recorded in the Register as
provided in this paragraph.




     (vi) On or prior to the effective date of any assignment pursuant to this Section
10.6(b), the assigning Lender shall surrender any outstanding Notes held by it all or a
portion of which are being assigned. Any Notes surrendered by the assigning Lender shall be
returned by the Administrative Agent to the Borrower marked “cancelled”.




     (vii) Notwithstanding the foregoing, no Assignee, which as of the date of any
assignment to it pursuant to this Section 10.6 would be entitled to any payment under
Sections 3.9, 3.10 or 10.5 in an amount greater than the assigning Lender would have been
entitled to as of such date under such Sections with respect to the rights assigned, shall
be entitled to such greater payments unless the assignment was made after an Event of
Default under Section 8.1(a) or 8.1(f) has occurred and is continuing or the Borrower has
expressly consented in writing to waive the benefit of this provision at the time of such
assignment.



107









 





     (c) (i) Any Lender other than a Conduit Lender may, in the ordinary course of its business
and in accordance with applicable law, without the consent of the Borrower or the Administrative
Agent, sell participations to one or more banks or other entities (a “Participant”) in all
or a portion of such Lender’s rights and obligations under this Agreement (including all or a
portion of its Commitments and the Term Loans owing to it); provided that (A) such Lender’s
obligations under this Agreement shall remain unchanged, (B) such Lender shall remain solely
responsible to the other parties hereto for the performance of such obligations, (C) such Lender
shall remain the holder of any such Term Loan for all purposes under this Agreement and the other
Loan Documents, and (D) the Borrower, the Administrative Agent and the Lenders shall continue to
deal solely and directly with such Lender in connection with such Lender’s rights and obligations
under this Agreement. Any agreement pursuant to which a Lender sells such a participation shall
provide that such Lender shall retain the sole right to enforce this Agreement and to approve any
amendment, modification or waiver of any provision of this Agreement; provided that such
agreement may provide that such Lender will not, without the consent of the Participant, agree to
any amendment, modification or waiver that (1) requires the consent of each Lender directly
affected thereby pursuant to the proviso to the second sentence of Section 10.1(a) and (2) directly
affects such Participant. Subject to paragraph (c)(ii) of this Section, the Borrower agrees that
each Participant shall be entitled to the benefits of (and shall have the related obligations
under) Sections 3.9, 3.10, 3.11, 3.12, 10.5 and 10.17 to the same extent as if it were a Lender and
had acquired its interest by assignment pursuant to paragraph (b) of this Section. To the extent
permitted by law, each Participant also shall be entitled to the benefits of Section 10.7(b) as
though it were a Lender, provided that such Participant shall be subject to Section 10.7(a)
as though it were a Lender.




     (ii) No Loan Party shall be obligated to make any greater payment under Sections 3.9,
3.10 or 10.5 than it would have been obligated to make in the absence of any participation,
unless the sale of such participation is made with the prior written consent of the Borrower
and the Borrower expressly waives the benefit of this provision at the time of such
participation. Any Participant shall not be entitled to the benefits of Section 3.10 unless
such Participant complies with Section 3.10(b) and provides the forms and certificates
referenced therein to the Lender that granted such participation.



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



     (e) No assignment or participation made or purported to be made to any Assignee or Participant
shall be effective without the prior written consent of the Borrower if it would require the
Borrower to make any filing with any Governmental Authority or qualify any Term Loan or Note under
the laws of any jurisdiction, and the Borrower shall be entitled to request and receive such
information and assurances as it may reasonably request from any Lender or any Assignee or
Participant to determine whether any such filing or qualification is required or whether any
assignment or participation is otherwise in accordance with applicable law.



108









 





     (f) In the event of a Defaulting Lender, the Borrower may, on prior written notice to the
Administrative Agent and the Defaulting Lender, replace such Defaulting Lender by causing such
Defaulting Lender to (and such Defaulting Lender shall be obligated to) assign pursuant to Section
10.6 (with the assignment fee and any other costs and expenses to be paid by the Borrower in such
instance) all of its rights and obligations under this Agreement to one or more assignees;
provided that neither the Administrative Agent nor any Lender shall have any obligation to
the Borrower to find a replacement Lender; and provided, further, that all
obligations of the Borrower owing to the Defaulting Lender relating to the Term Loans and
participations so assigned shall be paid in full by the assignee Lender to such Defaulting Lender
concurrently with such Assignment and Acceptance. In connection with any such replacement under
this Section 10.6(f), if the Defaulting Lender does not execute and deliver to the Administrative
Agent a duly completed Assignment and Acceptance and/or any other documentation necessary to
reflect such replacement within a period of time deemed reasonable by the Administrative Agent
after the later of (a) the date on which the replacement Lender executes and delivers such
Assignment and Acceptance and/or such other documentation and (b) the date as of which all
obligations of the Borrower owing to the Defaulting Lender relating to the Term Loans and
participations so assigned shall be paid in full by the assignee Lender to such Defaulting Lender,
then such Defaulting Lender shall be deemed to have executed and delivered such Assignment and
Acceptance and/or such other documentation as of such date and the Borrower shall be entitled (but
not obligated) to execute and deliver such Assignment and Acceptance and/or such other
documentation on behalf of such Defaulting Lender.



     (g) Notwithstanding the foregoing, any Conduit Lender may assign any or all of the Term Loans
it may have funded hereunder to its designating Lender without the consent of the Borrower or the
Administrative Agent and without regard to the limitations set forth in Section 10.6(b). The
Borrower, each Lender and the Administrative Agent hereby confirms that it will not institute
against a Conduit Lender or join any other Person in instituting against a Conduit Lender any
domestic or foreign bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding
under any state, federal or provincial bankruptcy or similar law, for one year and one day after
the payment in full of the latest maturing commercial paper note issued by such Conduit Lender;
provided, however, that each Lender designating any Conduit Lender hereby agrees to
indemnify, save and hold harmless each other party hereto for any loss, cost, damage or expense
arising out of its inability to institute such a proceeding against such Conduit Lender during such
period of forbearance. Each such indemnifying Lender shall pay in full any claim received from the
Borrower pursuant to this Section 10.6(g) within 30 Business Days of receipt of a certificate from
a Responsible Officer of the Borrower specifying in reasonable detail the cause and amount of the
loss, cost, damage or expense in respect of which the claim is being asserted, which certificate
shall be conclusive absent manifest error. Without limiting the indemnification obligations of any
indemnifying Lender pursuant to this Section 10.6(g), in the event that the indemnifying Lender
fails timely to compensate the Borrower for such claim, any Term Loans held by the relevant Conduit
Lender shall, if requested by the Borrower, be assigned promptly to the Lender that administers the
Conduit Lender and the designation of such Conduit Lender shall be void.



     (h) If the Borrower wishes to replace the Term Loans or Commitments under any Facility with
ones having different terms, it shall have the option, with the consent of the Administrative Agent
and subject to at least three Business Days’ advance notice to the Lenders



109









 




under such Facility, instead of prepaying the Term Loans or reducing or terminating the
Commitments to be replaced, to (i) require the Lenders under such Facility to assign such Term
Loans or Commitments to the Administrative Agent or its designees and (ii) amend the terms thereof
in accordance with Section 10.1. Pursuant to any such assignment, all Term Loans and Commitments
to be replaced shall be purchased at par (allocated among the Lenders under such Facility in the
same manner as would be required if such Term Loans were being optionally prepaid or such
Commitments were being optionally reduced or terminated by the Borrower), accompanied by payment of
any accrued interest and fees thereon and any amounts owing pursuant to Section 3.11. By receiving
such purchase price, the Lenders under such Facility shall automatically be deemed to have assigned
the Term Loans or Commitments under such Facility pursuant to the terms of the form of Assignment
and Acceptance attached hereto as Exhibit F, and accordingly no other action by such Lenders shall
be required in connection therewith. The provisions of this paragraph are intended to facilitate
the maintenance of the perfection and priority of existing security interests in the Collateral
during any such replacement.




     Section 10.7 Adjustments; Set-off; Calculations; Computations.



     (a) If any Lender (a “benefited Lender”) shall at any time receive any payment from
the Borrower or any Subsidiary thereof of all or part of its Term Loans owing to it or interest
thereon, or receive any collateral from the Borrower or any Subsidiary thereof in respect thereof
(whether voluntarily or involuntarily, by set-off, pursuant to events or proceedings of the nature
referred to in Section 8.1(f), or otherwise (except pursuant to Sections 3.4, 3.8, 3.12(d) or
10.6), in a greater proportion than any such payment to or collateral received by any other Lender,
if any, in respect of such other Lender’s Term Loans owing to it, or interest thereon, such
benefited Lender shall purchase for cash from the other Lenders an interest (by participation,
assignment or otherwise) in such portion of each such other Lender’s Term Loans owing to it, or
shall provide such other Lenders with the benefits of any such collateral, or the proceeds thereof,
as shall be necessary to cause such benefited Lender to share the excess payment or benefits of
such collateral or proceeds ratably with each of the Lenders; provided, however,
that if all or any portion of such excess payment or benefits is thereafter recovered from such
benefited Lender, such purchase shall be rescinded, and the purchase price and benefits returned,
to the extent of such recovery, but without.



     (b) In addition to any rights and remedies of the Lenders provided by law, each Lender shall
have the right, without prior notice to the Borrower, any such notice being expressly waived by the
Borrower to the extent permitted by applicable law, upon the occurrence of an Event of Default
under Section 8.1(a) to set-off and appropriate and apply against any amount then due and payable
under Section 8.1(a) by the Borrower any and all deposits (general or special, time or demand,
provisional or final), in any currency, and any other credits, indebtedness or claims, in any
currency, in each case whether direct or indirect, absolute or contingent, matured or unmatured, at
any time held or owing by such Lender or any branch or agency thereof to or for the credit or the
account of the Borrower. Each Lender agrees promptly to notify the Borrower and the Administrative
Agent after any such set-off and application made by such Lender, provided that the failure
to give such notice shall not affect the validity of such set-off and application.



110









 





     Section 10.8 Judgment.



     (a) If, for the purpose of obtaining or enforcing judgment against any Loan Party in any court
in any jurisdiction, it becomes necessary to convert into any other currency (such other currency
being hereinafter in this Section 10.8 referred to as the “Judgment Currency”) an amount
due under any Loan Document in any currency (the “Obligation Currency”) other than the
Judgment Currency, the conversion shall be made at the rate of exchange prevailing on the Business
Day immediately preceding the date of actual payment of the amount due, in the case of any
proceeding in the courts of any jurisdiction that will give effect to such conversion being made on
such date, or the date on which the judgment is given, in the case of any proceeding in the courts
of any other jurisdiction (the applicable date as of which such conversion is made pursuant to this
Section 10.8 being hereinafter in this Section 10.8 referred to as the “Judgment Conversion
Date”).



     (b) If, in the case of any proceeding in the court of any jurisdiction referred to in Section
10.8(a), there is a change in the rate of exchange prevailing between the Judgment Conversion Date
and the date of actual receipt for value of the amount due, the applicable Loan Party shall pay
such additional amount (if any, but in any event not a lesser amount) as may be necessary to ensure
that the amount actually received in the Judgment Currency, when converted at the rate of exchange
prevailing on the date of payment, will produce the amount of the Obligation Currency which could
have been purchased with the amount of the Judgment Currency stipulated in the judgment or judicial
order at the rate of exchange prevailing on the Judgment Conversion Date. Any amount due from any
Loan Party under this Section 10.8(b) shall be due as a separate debt and shall not be affected by
judgment being obtained for any other amounts due under or in respect of any of the Loan Documents.



     (c) The term “rate of exchange” in this Section 10.8 means the rate of exchange at which the
Administrative Agent, on the relevant date at or about 12:00 noon (New York time), would be
prepared to sell, in accordance with its normal course foreign currency exchange practices, the
Obligation Currency against the Judgment Currency.



     Section 10.9 Counterparts.



     This Agreement may be executed by one or more of the parties to this Agreement on any number
of separate counterparts (including by telecopy), and all of such counterparts taken together shall
be deemed to constitute one and the same instrument. A set of the copies of this Agreement signed
by all the parties shall be delivered to the Borrower and the Administrative Agent.



     Section 10.10 Severability.



     Any provision of this Agreement which is prohibited or unenforceable in any jurisdiction
shall, as to such jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in
any other jurisdiction.



111









 





     Section 10.11 Amendment.



     As of the Closing Date, the terms, conditions, agreements, covenants, representations and
warranties set forth in the Original Credit Agreement shall be amended and restated in their
entirety, and as so amended and restated, replaced and superseded, by the terms, conditions,
agreements, covenants, representations and warranties set forth in this Agreement. As of the
Closing Date, after giving effect to the Transactions, the amendment and restatement contained
herein shall not, in any manner, be construed to constitute payment of, or impair, limit, cancel or
extinguish the Indebtedness and other obligations and liabilities of the Borrower evidenced by or
arising under the Original Credit Agreement. For the avoidance of doubt, Guarantors (as defined in
the Original Credit Agreement) party to the Original Credit Agreement shall not be parties hereto
and shall have no rights, powers, privileges, duties or obligations as parties hereunder but shall
be Guarantors party to the Guarantee and Collateral Agreement and the other Loan Documents to which
they are a party as of the date hereof.



     Section 10.12 Integration.



     This Agreement and the other Loan Documents represent the entire agreement of each of the Loan
Parties party hereto, the Administrative Agent and the Lenders with respect to the subject matter
hereof, and there are no promises, undertakings, representations or warranties by any of the Loan
Parties party hereto, the Administrative Agent or any Lender relative to the subject matter hereof
not expressly set forth or referred to herein or in the other Loan Documents.



     Section 10.13 GOVERNING LAW.



     THIS AGREEMENT AND ANY NOTES AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THIS
AGREEMENT AND ANY NOTES SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE
LAW OF THE STATE OF NEW YORK.



     Section 10.14 Submission to Jurisdiction; Waivers.



     (a) Each party hereto hereby irrevocably and unconditionally:




     (i) submits for itself and its property in any legal action or proceeding relating to
this Agreement and the other Loan Documents to which it is a party, or for recognition and
enforcement of any judgment in respect thereof, to the non-exclusive general jurisdiction of
the courts of the State of New York, the courts of the United States of America for the
Southern District of New York, and appellate courts from any thereof;




     (ii) consents that any such action or proceeding may be brought in such courts and
waives any objection that it may now or hereafter have to the venue of any such action or
proceeding in any such court or that such action or proceeding was brought in an
inconvenient forum and agrees not to plead or claim the same;




     (iii) agrees that service of process in any such action or proceeding may be effected
by mailing a copy thereof by registered or certified mail (or any substantially



112









 







similar form of mail), postage prepaid, to the Borrower, the applicable Lender or the
Administrative Agent, as the case may be, at the address specified in Section 10.2 or at
such other address of which the Administrative Agent, any such Lender and the Borrower shall
have been notified pursuant thereto;




     (iv) agrees that nothing herein shall affect the right to effect service of process in
any other manner permitted by law or shall limit the right to sue in any other jurisdiction;
and




     (v) waives, to the maximum extent not prohibited by law, any right it may have to claim
or recover in any legal action or proceeding referred to in this section any consequential
or punitive damages.



     Section 10.15 Acknowledgements.



     The Borrower hereby acknowledges that:




     (a) it has been advised by counsel in the negotiation, execution and delivery of this
Agreement and the other Loan Documents;




     (b) neither the Administrative Agent nor any Other Representative or Lender has any
fiduciary relationship with or duty to the Borrower arising out of or in connection with
this Agreement or any of the other Loan Documents, and the relationship between the
Administrative Agent and Lenders, on the one hand, and the Borrower, on the other hand, in
connection herewith or therewith is solely that of creditor and debtor; and




     (c) no joint venture is created hereby or by the other Loan Documents or otherwise
exists by virtue of the transactions contemplated hereby and thereby among the Lenders or
among any of the Borrower and the Lenders.



     Section 10.16 WAIVER OF JURY TRIAL.



     EACH OF THE BORROWER, THE AGENTS AND THE LENDERS HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES
TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY NOTES OR ANY
OTHER LOAN DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.



     Section 10.17 Confidentiality.



     Each Agent and each Lender agrees to keep confidential any information (a) provided to it by
or on behalf of the Borrower, or any of their respective Subsidiaries pursuant to or in connection
with the Loan Documents or (b) obtained by such Lender based on a review of the books and records
of the Borrower or any of their respective Subsidiaries; provided that nothing herein shall
prevent any Lender from disclosing any such information (i) to any Agent, any Other Representative
or any other Lender, (ii) to any Transferee, or prospective Transferee or any creditor or any
actual or prospective counterparty (or its advisors) to any swap or derivative transaction relating
to the Borrower and its obligations which agrees to comply with the provisions of this section
pursuant to a written instrument (or electronically recorded agreement



113









 




from any Person listed above in this clause (ii), which Person has been approved by the
Borrower (such approval not be unreasonably withheld), in respect to any electronic information)
for the benefit of the Borrower (it being understood that each relevant Lender shall be solely
responsible for obtaining such instrument (or such electronically recorded agreement)), (iii) to
its affiliates and the employees, officers, directors, agents, attorneys, accountants and other
professional advisors of it and its affiliates, provided that such Lender shall inform each
such Person of the agreement under this Section 10.17 and take reasonable actions to cause
compliance by any such Person referred to in this clause (iii) with this agreement (including,
where appropriate, to cause any such Person to acknowledge its agreement to be bound by the
agreement under this Section 10.17), (iv) upon the request or demand of any Governmental Authority
having jurisdiction over such Lender or its affiliates or to the extent required in response to any
order of any court or other Governmental Authority or as shall otherwise be required pursuant to
any Requirement of Law, provided that such Lender shall, unless prohibited by any
Requirement of Law, notify the Borrower of any disclosure pursuant to this clause (iv) as far in
advance as is reasonably practicable under such circumstances, (v) which has been publicly
disclosed other than in breach of this Agreement, (vi) in connection with the exercise of any
remedy hereunder, under any Loan Document or under any Interest Rate Protection Agreement, (vii) in
connection with periodic regulatory examinations and reviews conducted by the National Association
of Insurance Commissioners or any Governmental Authority having jurisdiction over such Lender or
its affiliates (to the extent applicable), (viii) in connection with any litigation to which such
Lender (or, with respect to any Interest Rate Protection Agreement, any affiliate of any Lender
party thereto) may be a party, subject to the proviso in clause (iv), and (ix) if, prior to such
information having been so provided or obtained, such information was already in an Agent’s or a
Lender’s possession on a non-confidential basis without a duty of confidentiality to the Borrower
being violated. Notwithstanding any other provision of this Agreement, any other Loan Document or
any Assignment and Acceptance, the confidentiality provisions of this Section 10.17 shall survive
with respect to each Lender and Agent until the second anniversary of such Lender or Agent ceasing
to be a Lender or Agent, respectively.




     Section 10.18 Additional Indebtedness. In connection with the incurrence by
any Loan Party or any Subsidiary thereof of Additional Indebtedness, each of the Administrative
Agent and the Collateral Agent agree to execute and deliver the Intercreditor Agreement Supplement
and any amendments, amendments and restatements, restatements or waivers of or supplements to or
other modifications to, any Security Document, and to make or consent to any filings or take any
other actions in connection therewith, as may be reasonably deemed by the Borrower to be necessary
or reasonably desirable for any Lien on the property or assets of any Loan Party permitted to
secure such Additional Indebtedness to become a valid, perfected lien (with such priority as may be
designated by the relevant Loan Party or Subsidiary, to the extent such priority is permitted by
the Loan Documents) pursuant to the Security Document being so amended, amended and restated,
restated, waived, supplemented or otherwise modified or otherwise.



     Section 10.19 USA Patriot Act Notice. Each Lender hereby notifies the Borrower that
pursuant to the requirements of the USA Patriot Act (Title III of Pub.: 107-56 (signed into law
October 26, 2001)) (the “Patriot Act”), it is required to obtain, verify, and record
information that identifies the Borrower, which information includes the name of the Borrower and
other information that will allow such Lender to identify the Borrower in accordance with the
Patriot



114









 




Act, and the Borrower agrees to provide such information from time to time to any Lender upon
its written request.








115









 








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



	 	 	 	 	 	 	 
	 	 	NCI BUILDING SYSTEMS, INC.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

	 	 
	 	 	Name:	 	 
	 	 	Title:	 	 






116









 








	 	 	 	 	 	 	 
	 	 	WACHOVIA BANK, NATIONAL ASSOCIATION, 

Individually, as a Lender and as Administrative Agent and 

Collateral Agent	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

	 	 
	 	 	Name:	 	 
	 	 	Title:	 	 






117









 








	 	 	 	 	 	 	 
	 	 	[Name of Lender]	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

	 	 
	 	 	Name:	 	 
	 	 	Title:	 	 







118









 








     Acknowledged and Agreed with respect to Sections 3.13(a) and 10.11:



	 	 	 	 	 	 	 
	 	 	NCI GROUP, INC.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

	 	 
	 	 	Name:	 	 
	 	 	Title:	 	 
	 
	 	 	 	 	 	 
	 	 	ROBERTSON-CECO II CORPORATION	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

	 	 
	 	 	Name:	 	 
	 	 	Title:	 	 
	 
	 	 	 	 	 	 
	 	 	STEELBUILDING.COM, INC.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

	 	 
	 	 	Name:	 	 
	 	 	Title:	 	 







119











 







These Schedules are an integral part of that certain Amended and Restated Credit Agreement, dated
October 20, 2009, by and among NCI Building Systems, Inc., the several banks and other financial
institutions from time to time parties thereto and Wachovia Bank, National Association (the
“Agreement”), are incorporated therein by reference and are not intended to be independent from the
Agreement.



Unless defined otherwise in these Schedules, capitalized terms used herein have the meanings given
to them in the Agreement. Headings and italicized language included herein are included solely for
ease of reference and shall not in any way limit the disclosures contained herein.



Disclosure of a matter that is not required to be made does not require disclosure of any similar
matters not required to be disclosed, and disclosure of any item on any of the Schedules shall not
constitute an admission that such item is material or required to be disclosed. Disclosure in any
Schedule of any matter or document shall constitute a disclosure of such matter or document for
purposes of all other Schedules to the extent the applicability to one or more other Schedules is
reasonably apparent from the face of such Schedule.



The inclusion in these Schedules of any matter or document shall not imply any representation,
warranty or undertaking not expressly given in the Agreement nor shall such disclosure be taken as
extending the scope of any of the representations or warranties. Nothing in these Schedules
constitutes an admission of any liability or obligation of any Loan Party to any third party, nor
an admission against a Loan Party’s interests.



Document titles that are listed in italics have been provided by Borrower for the convenience of
Administrative Agent. However, the provision of such titles shall not imply any representation or
warranty as to the accuracy or completeness of such titles. Reference in these Schedules to an
agreement includes a reference to all amendments, modifications or other supplements to such
agreement, to the extent such amendments, modifications or other supplements have been made
available to Administrative Agent.






1









 








Schedule A

to Amended and Restated Credit Agreement




Lenders





	 	 	 	 	 
	Lender	 	Commitment
	AIB Debt Management, Limited
	 	$	4,484,693.84	 
	Amegy Bank National Association
	 	 	382,653.07	 
	Ares Enhanced Credit Opportunities Fund Ltd.
	 	 	88,188.35	 
	Ares Enhanced Loan Investment Strategy IR Ltd.
	 	 	132,282.53	 
	Ares VIII CLO Ltd.
	 	 	866,886.18	 
	Ares VIR CLO Ltd.
	 	 	604,981.41	 
	Ares VR CLO Ltd.
	 	 	253,866.93	 
	Bank of America, N.A.
	 	 	956,632.65	 
	Big Sky III Senior Loan Trust
	 	 	371,819.77	 
	Capital One Leverage Finance Corp.
	 	 	3,146,258.51	 
	CC Arbitrage, Ltd.
	 	 	4,401,995.05	 
	Centaur LowLev Arbitrage Fund Ltd.
	 	 	1,953,585.17	 
	Crédit Industriel et Commercial
	 	 	6,813,064.44	 
	Comerica Bank
	 	 	3,895,238.10	 
	Mercantil Commercebank, NA
	 	 	3,836,495.07	 
	Guaranty Bank (acquired by BBVA Compass)
	 	 	16,830,628.52	 
	Confluent 3 Limited
	 	 	191,326.53	 
	Del Mar CLO I, Ltd.
	 	 	382,653.06	 
	Eaton Vance CDO IX Ltd.
	 	 	494,897.96	 
	Eaton Vance CDO VIII, Ltd.
	 	 	559,523.81	 
	Eaton Vance Floating-Rate Income Trust
	 	 	190,829.58	 
	Eaton Vance Institutional Senior Loan Fund
	 	 	1,463,998.99	 
	Eaton Vance Limited Duration Income Fund
	 	 	703,087.72	 
	Eaton Vance Senior Floating-Rate Trust
	 	 	282,857.14	 
	Eaton Vance VT Floating-Rate Income Fund
	 	 	95,663.26	 
	Fullerton Capital Partners, L.P.
	 	 	511,439.19	 
	GE Business Financial Services Inc. (f/k/a Merrill Lynch
Business Financial Services Inc.)
	 	 	1,852,040.82	 
	GE Commercial Loan Holding LLC
	 	 	6,476,190.48	 
	General Electric Capital Corporation
	 	 	1,940,856.08	 
	Grayson & Co.
	 	 	3,055,918.89	 
	Harris N.A.
	 	 	3,026,257.67	 
	ING Investment Management CLO I, Ltd.
	 	 	428,923.55	 
	ING Investment Management CLO V, Ltd.
	 	 	238,095.24	 
	ING Investment Management CLO IV, Ltd.
	 	 	646,124.38	 
	ING Investment Management CLO II, Ltd.
	 	 	573,979.59	 
	ING Investment Management CLO III, Ltd.
	 	 	238,095.24	 
	JMB Capital Partners Master Fund, L.P.
	 	 	12,808,678.61	 
	Longhorn CDO (Cayman) Ltd.
	 	 	1,490,163.15	 
	Luxor Capital LLC
	 	 	12,498,134.45	 
	Marathon CLO I Ltd.
	 	 	1,744,575.68	 
	Marathon CLO II Ltd.
	 	 	1,573,290.22	 
	Merritt CLO Holding LLC
	 	 	7,324,473.97	 
	Morgan Stanley Investment Management Croton, Ltd.
	 	 	191,326.53	 







2









 






Schedule A

to Amended and Restated Credit Agreement





	 	 	 	 	 
	National City Bank
	 	 	6,819,727.89	 
	The Norinchukin Bank, New York Branch
	 	 	676,681.29	 
	Olympic CLO I
	 	 	551,020.41	 
	QUALCOMM Global Trading, Inc.
	 	 	191,326.53	 
	Cooperatieve Centrale Raiffeisen-Böerenleenbank, B.A.
“Rabobank Nederland”, New York Branch
	 	 	4,922,231.18	 
	San Gabriel CLO I
	 	 	367,346.93	 
	Senior Debt Portfolio
	 	 	1,116,905.11	 
	Shasta CLO I
	 	 	382,653.06	 
	Sierra CLO II
	 	 	382,653.07	 
	The Sumitomo Trust & Banking Co., Ltd., New York Branch
	 	 	1,894,990.32	 
	Sycamore Opportunities Fund, L.P.
	 	 	1,022,878.38	 
	Trustmark National Bank
	 	 	5,518,861.26	 
	UBS AG, Stamford Branch
	 	 	6,348,254.79	 
	Venture III CDO Limited
	 	 	191,326.53	 
	Venture IV CDO Limited
	 	 	244,688.14	 
	Venture IX CDO Limited
	 	 	191,326.53	 
	Venture V CDO Limited
	 	 	191,326.53	 
	Wachovia Bank, National Association
	 	 	4,059,280.39	 
	Wells Fargo Bank, N.A.
	 	 	4,923,850.28	 
	 
	TOTAL
	 	$	150,000,000.00	 















3









 








Schedule B

to Amended and Restated Credit Agreement




Rollover Indebtedness




Secured Interest Rate Swap Agreement entered into with Wachovia Bank, N.A. in a notional amount
equal to $65,000,000



Carter County, Tennessee Industrial Revenue Bond (Approximately $420,000 Remaining)



Convertible Notes ($58,750 Remaining)



Outstanding Letters of Credit (All Cash Collateralized at Approximately $12.4 Million), consisting
of the following:




	 	 	 	 	 	 	 
	Letter of Credit	 	Expiry	 	 	 	 
	Number	 	Date	 	Beneficiary	 	Amount
	SM210246

	 	9/29/2010
	 	St. Paul Fire & Marine Insurance Company
	 	$[Redacted]*
	SM211112

	 	12/1/2009
	 	Zurich American Insurance Company
	 	$[Redacted]*
	SM219776

	 	12/31/2009
	 	Zurich American Insurance Company
	 	$[Redacted]*
	SM219780

	 	4/27/2010
	 	National Union Fire Insurance Company
	 	$[Redacted]*
	SM220984

	 	1/12/2010
	 	Bank of New York Mellon Trust Co. NA,
formerly JP Morgan Trust
	 	$[Redacted]*








 




			
	*	 	indicates redacted and filed separately with the Securities and Exchange Commission.




Intercompany Debt From Robertson Building Systems Ltd. (Canada) to Robertson-Ceco II
Corporation (Approximately $850,000 U.S.)



Intercompany Debt From Building Systems de Mexico (Mexico) to NCI Group, Inc. (Approximately $4.7
Million U.S.)



Purchase of Equipment for IPS Plant II currently postponed, cancelable at will (Approximately €2.76
Million Outstanding)



Finance Insurance Premiums (Approximately $736,000 Remaining)




Ordinary course of business, performance, bid, appeal, surety, supply, judgment, replevin or similar bonds, and similar obligations (Approximate Average Amount of $6 Million), consisting of
the bonds as referred to in Schedule 7.2(i)



4









 








Schedule C

to Amended and Restated Credit Agreement




Unscheduled Assumed Indebtedness



Indebtedness of the Borrower or any of its Subsidiaries incurred pursuant to the ABL Facility
Documents.






5









 








Schedule D

to Amended and Restated Credit Agreement




Existing Mortgages



1. Deed of Trust, Security Agreement, Assignment of Leases and Rents and
Fixture Filing, dated as of August 21, 2009, by NCI Group, Inc., as grantor,
to Stewart Title & Trust of Phoenix, Inc., as trustee, in favor of Wachovia
Bank, National Association, as administrative agent, with respect to the real
property located at 660 South 91st Avenue, Tolleson, AZ



2. Deed of Trust, Security Agreement, Assignment of Leases and Rents and
Fixture Filing, dated as of August 21, 2009, by NCI Group, Inc., as grantor,
to Stewart Title of California, Inc., as trustee, in favor of Wachovia Bank,
National Association, as administrative agent, with respect to the real
property located at 550 Industry Way, Atwater, CA



3. Deed of Trust, Security Agreement, Assignment of Leases and Rents and
Fixture Filing, dated as of August 21, 2009, by Robertson-Ceco II
Corporation, as grantor, to Stewart Title of California, Inc., as trustee, in
favor of Wachovia Bank, National Association, as administrative agent, with
respect to the real property located at 12101 East Brandt Road, Lockeford, CA



4. Deed of Trust, Security Agreement, Assignment of Leases and Rents and
Fixture Filing, dated as of August 21, 2009, by NCI Group, Inc., as grantor,
to Stewart Title of California, Inc., as trustee, in favor of Wachovia Bank,
National Association, as administrative agent, with respect to the real
property located at 9123 Center Street, Rancho Cucamonga, CA



5. Deed to Secure Debt, Security Agreement and Assignment of Leases and
Rents, dated as of August 21, 2009, by NCI Group, Inc., as grantor, in favor
of Wachovia Bank, National Association, as administrative agent, with respect
to the real property located at 1601 Rogers Road, Adel, GA



6. Deed to Secure Debt, Security Agreement and Assignment of Leases and
Rents, dated as of August 21, 2009, by NCI Group, Inc., as grantor, in favor
of Wachovia Bank, National Association, as administrative agent, with respect
to the real property located at 2280 Monier Avenue, Lithia Springs, GA



7. Deed to Secure Debt, Security Agreement and Assignment of Leases and
Rents, dated as of August 21, 2009, by NCI Group, Inc., as grantor, in favor
of Wachovia Bank, National Association, as administrative agent, with respect
to the real property located at 1150 Marietta Industrial Drive NE, Marietta,
GA



8. Mortgage, Security Agreement, Assignment of Leases and Rents and Fixture
Filing, dated as of August 21, 2009, by NCI Group, Inc., as grantor, in favor
of Wachovia Bank, National Association, as administrative agent, with respect
to the real property located at




6









 








Schedule D

to Amended and Restated Credit Agreement



1780 McCall Drive, Shelbyville, IN



9. Mortgage, Security Agreement, Assignment of Leases and Rents and Fixture
Filing, dated as of August 21, 2009, by Robertson-Ceco II Corporation, as
grantor, in favor of Wachovia Bank, National Association, as administrative
agent, with respect to the real property located at 101 West South Street,
Monticello, IA



10. Mortgage, Security Agreement, Assignment of Leases and Rents and Fixture
Filing, dated as of August 21, 2009, by Robertson-Ceco II Corporation, as
grantor, in favor of Wachovia Bank, National Association, as administrative
agent, with respect to the real property located at 305 North Iris Road, Mt.
Pleasant, IA



11. Deed of Trust, Security Agreement, Assignment of Leases and Rents and
Fixture Filing, dated as of August 21, 2009, by Robertson-Ceco II
Corporation, as grantor, to Danny L. Crotwell, as trustee, in favor of
Wachovia Bank, National Association, as administrative agent, with respect to
the real property located at 2400 Highway 45 North, 248 Chubby Drive & 3539
Bluecutt Road, Columbus, MS



12. Deed of Trust, Security Agreement, Assignment of Leases and Rents and
Fixture Filing, dated as of August 21, 2009, by NCI Group, Inc., as grantor,
to Danny L. Crotwell, as trustee, in favor of Wachovia Bank, National
Association, as administrative agent, with respect to the real property
located at 300 Highway 51 North, Hernando, MS



13. Deed of Trust, Security Agreement, Assignment of Leases and Rents and
Fixture Filing, dated as of August 21, 2009, by NCI Group, Inc., as grantor,
to Danny L. Crotwell, as trustee, in favor of Wachovia Bank, National
Association, as administrative agent, with respect to the real property
located at 201 Apache Drive & 951 Prisock Road, Jackson, MS



14. Mortgage, Security Agreement, Assignment of Leases and Rents and Fixture
Filing, dated as of August 21, 2009, by NCI Group, Inc., as grantor, in favor
of Wachovia Bank, National Association, as administrative agent, with respect
to the real property located at 6168 State Route 233, Rome, NY



15. Deed of Trust, Security Agreement, Assignment of Leases and Rents and
Fixture Filing (Collateral Includes Fixtures), dated as of August 21, 2009,
by Robertson-Ceco II Corporation, as grantor, to Stewart Title Company, as
trustee, in favor of Wachovia Bank, National Association, as administrative
agent, with respect to the real property located at 100 Red Iron Road, Rocky
Mount, NC



16. Deed of Trust, Security Agreement, Assignment of Leases and Rents and
Fixture Filing, dated as of August 21, 2009, by NCI Group, Inc., as grantor,
to Frank Alvstad, as trustee, in favor of Wachovia Bank, National
Association, as administrative agent, with respect to the real property
located at 422 Kirby Drive, Lexington, TN






7









 








Schedule D

to Amended and Restated Credit Agreement



17. Deed of Trust, Security Agreement, Assignment of Leases and Rents and
Fixture Filing, dated as of August 21, 2009, by NCI Group, Inc., as grantor,
to Frank Alvstad, as trustee, in favor of Wachovia Bank, National
Association, as administrative agent, with respect to the real property
located at 1836 Dock Street, Memphis, TN



18. Deed of Trust, Security Agreement, Assignment of Leases and Rents and
Fixture Filing, dated as of August 21, 2009, by NCI Group, Inc., as grantor,
to Jay Paxton, Esq., as trustee, in favor of Wachovia Bank, National
Association, as administrative agent, with respect to the real property
located at 10943 North Sam Houston Parkway West, Houston, TX



19. Deed of Trust, Security Agreement, Assignment of Leases and Rents and
Fixture Filing, dated as of August 21, 2009, by NCI Group, Inc., as grantor,
to Jay Paxton, Esq., as trustee, in favor of Wachovia Bank, National
Association, as administrative agent, with respect to the real property
located at 14031 West Hardy, Houston, TX



20. Deed of Trust, Security Agreement, Assignment of Leases and Rents and
Fixture Filing, dated as of August 21, 2009, by NCI Group, Inc., as grantor,
to Jay Paxton, Esq., as trustee, in favor of Wachovia Bank, National
Association, as administrative agent, with respect to the real property
located at 501 North Greenwood Street, Houston, TX



21. Deed of Trust, Security Agreement, Assignment of Leases and Rents and
Fixture Filing, dated as of August 21, 2009, by NCI Group, Inc., as grantor,
to Jay Paxton, Esq., as trustee, in favor of Wachovia Bank, National
Association, as administrative agent, with respect to the real property
located at 7301 Fairview, Houston, TX



22. Deed of Trust, Security Agreement, Assignment of Leases and Rents and
Fixture Filing, dated as of August 21, 2009, by NCI Group, Inc., as grantor,
to Jay Paxton, Esq., as trustee, in favor of Wachovia Bank, National
Association, as administrative agent, with respect to the real property
located at 5244 Bear Creek Court, Irving, TX



23. Deed of Trust, Security Agreement, Assignment of Leases and Rents and
Fixture Filing, dated as of August 21, 2009, by NCI Group, Inc., as grantor,
to Jay Paxton, Esq., as trustee, in favor of Wachovia Bank, National
Association, as administrative agent, with respect to the real property
located at 5711 East FM-40, Lubbock, TX



24. Deed of Trust, Security Agreement, Assignment of Leases and Rents and
Fixture Filing, dated as of August 21, 2009, by NCI Group, Inc., as grantor,
to Title West Title Company, as trustee, in favor of Wachovia Bank, National
Association, as administrative agent, with respect to the real property
located at 1155 West 2300 North, Salt Lake City, UT



25. Deed of Trust, Security Agreement, Assignment of Leases and Rents and
Fixture Filing, dated as of August 21, 2009, by NCI Group, Inc., as grantor,
to Kenneth L.




8









 








Schedule D

to Amended and Restated Credit Agreement



Dickinson, as trustee, in favor of Wachovia Bank, National
Association, as administrative agent, with respect to the real property
located at 1703 Ruffin Mill Road, Colonial Heights, VA



26. Deed of Trust, Security Agreement, Assignment of Leases and Rents and
Fixture Filing, dated as of August 21, 2009, by Robertson-Ceco II
Corporation, as grantor, to Stewart Title of Spokane, LLC, as trustee, in
favor of Wachovia Bank, National Association, as administrative agent, with
respect to the real property located at 2714 South Garfield Road, Airway
Heights, WA









9









 








Schedule 3.13(b)

to Amended and Restated Credit Agreement




Amended and Restated Mortgages




See Schedule D, which is incorporated into this Schedule 3.13(b) as if restated in full.



10









 





Schedule 4.5

to Amended and Restated Credit Agreement




Litigation



Litigation



Identified below are pending lawsuits or threatened litigation claims involving NCI Building
Systems, Inc. or any of its subsidiaries in which the amount in controversy is alleged to be in
excess of $250,000 or is otherwise unspecified. Nothing in this document shall be construed to be
an admission and all allegations and claims of opposing parties in all matters are disputed.
Moreover, nothing in this document shall be interpreted as an admission or waiver of any claim,
defense, counterclaim, affirmative defense, etc. that NCI Building Systems, Inc., its subsidiaries
and/or affiliates have or could assert.





	•	 	JOSE INFANTE V. METAL COATERS OF CALIFORNIA, INC.; NCI GROUP, INC.; HUGO ESTRADA, ET AL. —
Pending in the Superior Court of California, County of San Bernadino, Rancho Cucamonga
Division. Employment matter. Alleged damages unspecified. Discovery is ongoing, no trial
date has been set.
	 
	•	 	NCI GROUP, INC. V. CANNON SERVICES, INC. ET AL.  — Pending in the United States District
Court for the Northern District of Georgia — Atlanta Division. Fraud, theft and conversion
matter. NCI’s damages against all defendants are more than $250,000. Case has been stayed
pending criminal investigation. Discovery will commence once stay is lifted. No trial date
has been set.
	 
	•	 	BERNABE LOPEZ V. MBCI — Pending in District Court in Montgomery County, Texas. Claim
alleges retaliatory termination related to prior workers’ compensation claim. Alleged damages
unspecified. Discovery is ongoing, no trial date has been set. Case has been dormant for
more than 5 years.
	 
	•	 	METRIC CONSTRUCTION CO. V. PROFESSIONAL RAINGUTTER SERVICES, INC., MBCI, ET AL. — Pending
in the United States District Court in Utah. Claim alleges negligent design. Alleged damages
are $742,125. Discovery is ongoing; trial is scheduled for January 2010.
	 
	•	 	CHASE HOME FINANCE LLC ET AL. V. MARK SWINK, MBCI ET AL. — Pending in the Circuit Court of
the 18th Judicial Circuit in and for Seminole County, Florida. Claim alleges wrongful
foreclosure. Alleged damages unspecified. Discovery is ongoing, but case has been dormant
for over 1 year. No trial date has been set.
	 
	•	 	MBCI, A DIVISION OF NCI GROUP, INC. V. CANNON STORAGE SYSTEMS D/B/A VERN CANNON COMPANY AND
VERN CANNON V. MBCI, A DIVISION OF NCI GROUP, INC. — Pending in District Court in Houston,
Harris County, Texas. Breach of contract and business disparagement claims. Counterclaim








11









 








Schedule 4.5

to Amended and Restated Credit Agreement



	 	 	alleges breach of warranty, violations of the Texas Deceptive Trade Practices Act, and tortious
interference. Alleged damages unspecified. MBCI damages are more than $250,000. Discovery is
ongoing; case is set for trial in February 2010.
	 
	•	 	SUMNER COUNTY BOARD OF EDUCATION V. CARDEN COMPANY, INC. V. MBCI, JOHNSON + BAILEY
ARCHITECTS, P.C., ET AL. — Pending in Chancery Court for Sumner County, Tennessee. Claim
alleges construction defect. Alleged damages unspecified. Discovery is ongoing and the
parties are in settlement negotiations. Trial is set for week of April 12, 2010.
	 
	•	 	TEACHERS INSURANCE & ANNUITY ASSOCIATION OF AMERICA, A NEW YORK CORPORATION, FOR THE
BENEFIT OF ITS REAL ESTATE ACCOUNT V. DPR CONSTRUCTION, INC., METALLIC BUILDING COMPANY, ET
AL. — Pending in District Court in Denton County, Texas. Trial has resulted in a jury
verdict apportioning a percentage of damages to NCI. NCI’s insurer will pay $92,269.24 in
damages to Plaintiff building occupant Sincerely Yours and $112,838.88 in damages to Plaintiff
building occupant Vantage Furniture. NCI’s Long Bay® System was found to not be unreasonably
dangerous or defectively designed.
	 
	•	 	KLAMATH COUNTY, OREGON A POLITICAL SUBDIVISION OF THE STATE OF OREGON V. BOGATAY
CONSTRUCTION, INCORPORATED, A/KA/ BOGATAY CONSTRUCTION, INC., NCI BUILDING SYSTEMS, L.P. D/B/A
METALLIC BUILDING COMPANY — Pending in Circuit Court of Klamath County, Oregon. Alleged
breach of warranty suit. Alleged damages of $1,000,000. Discovery is ongoing; no trial date
has been set.
	 
	•	 	SAINT-GOBAIN CONTAINER, INC. V. B.F.I., INC. AND B.F.A., INC. V. NCI BUILDING SYSTEMS,
L.P., D/B/A MESCO BUILDING SOLUTIONS FORMERLY MESCO METAL BUILDINGS — Pending in Davies
County Circuit Court Division, Kentucky. Claim alleges contribution and indemnity related to
building collapse. Alleged damages unspecified. Discovery and settlement negotiations are
ongoing. No trial date has been set.
	 
	•	 	NCI GROUP, INC. D/B/A METALLIC BUILDING COMPANY VS. CALAMAR CONSTRUCTION MANAGEMENT —
Pending in the United States District Court for the Southern District of Texas — Houston
Division. Breach of contract claim for more than $313,000 debt. Counterclaim alleges breach
of warranty and breach of contract. Discovery is concluding and trial is set for November 10,
2009.
	 
	•	 	M.B. KAHN CONSTRUCTION COMPANY, INC., SUCCESSOR IN INTEREST TO CHANCEL CONSTRUCTION GROUP,
INC. V. NCI BUILDING SYSTEMS, INC., SUCCESSOR IN INTEREST TO NCI BUILDING SYSTEM, L.P. —
Pending








12









 








Schedule 4.5

to Amended and Restated Credit Agreement



	 	 	in the U.S. District Court for the District of South Carolina, Florence Division. Claims
allege delay and receipt of nonconforming materials. Alleged damages in excess of $250,000.
Discovery is ongoing; no trial date has been set.
	 
	•	 	JOSE VILLATORO V. TEXAS INTERNATIONAL EXPRESS, LLC AND NCI BUILDING SYSTEMS, INC. —
Pending in Harris County District Court, Houston, Texas. Alleged personal injury claim.
Alleged damages unspecified. Discovery is ongoing; no trial date has been set.
	 
	•	 	WAREHOUSES OF SARATOGA, GP F/K/A SARATOGA WAREHOUSE ASSOCIATES, GP V. UNITED PROGRESS,
INC., STAR BUILDING SYSTEMS ET AL. — Alleged roof leak claim. Alleged damages unspecified.
This case has been dormant for approximately 5 years. No trial date has been set.
	 
	•	 	INTERNATIONAL FIDELITY INSURANCE COMPANY V. BMC CONTRACTORS, INC., NILE, INC., TRITT
ENTERPRISES, INC., HEFCO CONSTRUCTION, INC., STAR BUILDING SYSTEMS, INC., DORIS D. HEFNER, AND
LON DILLARD — Pending in the U.S. District Court for the Middle District of Georgia, Macon
Division. Claim alleges defective design and manufacturing. Alleged damages unspecified.
Star filed a counterclaim for breach of contract. The Court denied Star’s motion for judgment
on the pleadings as well as Star’s opposition to BMC’s motion to set aside default and compel
arbitration. No date has been set for the arbitration. Settlement discussions are ongoing.
	 
	•	 	STEELCON GROUP LTD. V. ROBERTSON BUILDING SYSTEMS, LTD., ROBERTSON-CECO CORP. AND HARVEST
BIBLE CHAPEL — Pending in the Ontario Superior Court of Justice, Canada. Claim alleges
delays, breach of contract, defective design and manufacturing. Alleged damages are $25
million. Counterclaim asserts approximately $4.2 million. Discovery is ongoing; no trial
date has been set.
	 
	•	 	ROBERT OCCHIFINTO V. OLIVO CONSTRUCTION V. STAR BUILDING SYSTEMS — Superior Court of New
Jersey, Sussex County Law Division. Claim alleges breach of warranties, negligence and breach
of implied covenant of good faith and fair dealing, based on alleged supply of inadequate
materials. Alleged damages unspecified. Discovery is ongoing; no trial date has been set.
	 
	•	 	LINDON CALVERT V. ARCO BUILDING SYSTEMS, INC., STAR BUILDING SYSTEMS, KEEYO CRAFT D/B/A
KEEYO CRAFT CONSTRUCTION — Pending in the Circuit Court of Morgan County, Alabama. Claim
alleges breach of warranty. Alleged damages unspecified. Discovery is ongoing; no trial date
has been set.
	 
	•	 	JACKSON RANCHERIA HOTEL & CASINO V. WORTH GROUP MASTERBUILDERS INC. ET AL. V. K7
CONSTRUCTION, INC., STAR










13









 








Schedule 4.5

to Amended and Restated Credit Agreement



	 	 	BUILDING SYSTEMS ET AL. — Pending in Superior Court for the State of California, Amador
County. Claim alleges construction defects. Alleged damages unspecified. Discovery is
ongoing; no trial date has been set.
	 
	•	 	ERIN BRADLY, LLC V. REGIONAL BUILDERS, INC., CECO BUILDINGS CORPORATION, ATLANTIC
REFRIGERATION AND AIR CONDITIONING, INC., AES ARCHITECT, LLC, BRUCE ELLIOTT COMPANY AND CUSTOM
STOREFRONTS & SKYLIGHTS, INC. — Pending in Superior Court for the State of Delaware, Sussex
County. Claim alleges breach of warranty. Alleged damages unspecified. Discovery is
ongoing; no trial date has been set.
	 
	•	 	MARION ALLEY V. ROBERTSON BUILDING SYSTEMS AND ROBERTSON CECO II CORPORATION — Pending in
Ontario Superior Court of Justice, Canada. Claim alleges wrongful discharge matter. Alleged
damages of $450,000 (Canadian). Discovery is ongoing; mediation is scheduled for January
2010.
	 
	•	 	TALLAPOOSA DEVELOPMENT AUTHORITY V. NCI ET AL. — Pending in the United States District
Court for the Northern District of Georgia — Newnan Division. Alleged breach of contract
matter. Alleged damages unspecified. Discovery is ongoing; no trial date has been set.
	 
	•	 	TRAVELERS EXCESS AND SURPLUS LINES COMPANY V. MICHAELSON ENTERPRISES, INC., J MOTA
CONSTRUCTION, LLC, ATLANTECH REPS, INC., MCGOWAN BUILDERS, INC. AND STAR BUILDING SYSTEMS —
Pending in U.S. District Court for the District of New Jersey. Claim relating to allegations
of building collapse. Alleged damages of $314,121.36. Discovery is ongoing; no trial date
has been set.
	 
	•	 	TRAVELERS PROPERTY CASUALTY COMPANY OF AMERICA SUBROGEE OF EMERALD CORRECTIONAL MANAGEMENT,
LLC V. HALE-MILLS CONSTRUCTION, LTD, MID-WEST STEEL BUILDING COMPANY, ET AL — Pending in
Dallas County District Court, Dallas, Texas. Claim alleging roof collapse. Alleged damages
of $567,834.69. Discovery is ongoing; no trial date has been set.
	 
	•	 	NCI V. KELLY R. GINN, GREEN-SPAN PROFILES, L.P., GREEN-SPAN MANAGEMENT, LLC — Pending in
District Court of Harris County, Houston, Texas. Suit against former Executive Vice President
of Operations of NCI Building Systems, Inc. alleging breach of non-competition agreement and
misappropriation of confidential information. Counterclaim filed with damages unspecified.
Discovery is ongoing. Trial is set for April 5, 2010.
	 
	•	 	PRIDE ENTERPRISES, INC. V. LEWES STEEL SERVICES, STAR BUILDING SYSTEMS AND SCOTT AYARS —
Pending in the U.S. District Court for the District of Delaware. Declaratory judgment action
alleging breach of contract. Star’s









14









 





Schedule 4.5

to Amended and Restated Credit Agreement





	 	 	counterclaim damages are more than $250,000. A motion to dismiss based on the venue selection
clause in Star’s contract is pending. No trial date has been set.
	 
	•	 	DBCI V. JB MATHEWS — Pending in the U.S. District Court for the Southern District of
Texas. Breach of contract suit to collect $160,000 for materials purchased by JB Mathews.
Defendant has alleged receipt of defective roll-up doors as basis for non-payment, and has
filed a counterclaim seeking approximately $90,000 in damages. Discovery is in its early
stages; trial is scheduled for the week of May 28, 2010.
	 
	•	 	By letter dated January 15, 2009, QBE Agri Insurance notified NCI Group, Inc. of a
potential claim with respect to the collapse of a pre-engineered steel building that took
place on or about December 27, 2008. The building is located at 3206 A Long Prairie Rd.,
Valley, Washington. The insured has been identified as Springstone.
	 
	•	 	By letter dated February 6, 2009, AMCO Insurance Company, a Nationwide company, notified
All American Building Systems, an unincorporated division of NCI Group, Inc. of a potential
claim with respect to the collapse of a roof that took place on January 27, 2009. The
building is located a 2027 Rust Avenue, Cape Girardeau, Missouri. The insured has been
identified as Rust Investment Properties LLC.
	 
	•	 	Scott, Byron and Barbara House, former owners of Heritage Building Systems and
Steelbuilding.com, have alleged certain claims against NCI Building Systems, Inc. and
NCI Group, Inc. for payment of additional “hold-back” funds from NCI Building Systems, Inc.’s
acquisition of these companies in December 2004 as well as devaluation of restricted stock not
issued in December 2008. NCI Building Systems, Inc. and NCI Group, Inc. have defenses to
these alleged claims. Settlement discussions are ongoing. At this time no lawsuit has been
filed.
	 
	•	 	Dale Earnhardt, Inc. (“DEI”) has raised claims regarding defects in two buildings wherein
the air conditioning units on each building are sinking in the roof structure and, according
to DEI’s claims, are at risk of falling through the roof. For the first building, DEI’s
complaints have been asserted against Metallic Building Company, a division of NCI Group,
Inc., VCC Construction, Keystone Builders and Al Kessel as principal of Keystone. For the
second building, DEI has made its claims against Mesco Building Systems, a division of NCI
Group, Inc., and VCC Construction. With respect to both Metallic and Mesco, DEI has
informally asserted that each structure, or at least the roof on each structure, was
defectively designed. DEI has made these allegations in an attempt to remediate each
structure to avoid litigation. No site inspection has taken place at this time.











15









 








Schedule 4.5

to Amended and Restated Credit Agreement







Tax Audits



There are twenty-five (25) state sales & use and income/franchise tax audits in progress and three
(3) property tax audits in progress. It is possible that a material assessment could result from
any one or more of the audits currently in progress. See the list below for the audits currently
in progress.




NCI Building Systems, Inc. & Subsidiaries

Schedule of Tax Audits Currently in Progress




	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	Local	 	 	 	Type of	 	Audit Period
	Count	 	State	 	Jurisdiction	 	Legal Entity	 	Audit	 	From	 	To
	1.

	 	AL
	 	AlaTax
	 	A & S Building

Systems LP
	 	Sales & Use
	 	1-Jul-05
	 	28-Oct-07
	2.

	 	AL
	 	AlaTax
	 	NCI Building Systems

LP/DBCI
	 	Sales & Use
	 	1-Nov-06
	 	28-Oct-07
	3.

	 	AL
	 	AlaTax
	 	Robertson-Ceco II Corp
	 	Sales & Use
	 	1-Nov-04
	 	30-Jun-07
	4.

	 	AL
	 	Hoover
	 	Metal Building

Components LP
	 	Sales & Use
	 	1-Jan-06
	 	31-Jan-09
	5.

	 	CA
	 	N/A
	 	NCI Building Systems

LP
	 	Sales & Use
	 	1-Oct-03
	 	28-Oct-07
	6.

	 	CA
	 	N/A
	 	Steelbuilding.Com Inc
	 	Sales & Use
	 	1-Apr-05
	 	28-Oct-07
	7.

	 	CT
	 	N/A
	 	Robertson-Ceco II Corp
	 	Sales & Use
	 	1-Nov-05
	 	30-Nov-08
	8.

	 	LA
	 	Bossier City
	 	Metal Building
Components, L.P.
	 	Sales & Use
	 	1-Jul-06
	 	28-Oct-07
	9.

	 	MA
	 	N/A
	 	Robertson-Ceco II Corp
	 	Sales & Use
	 	1-Apr-06
	 	1-Mar-09
	10.

	 	NC
	 	N/A
	 	Robertson-Ceco II Corp
	 	Sales & Use
	 	1-Jan-06
	 	31-Dec-08
	11.

	 	TN
	 	N/A
	 	NCI Building Systems
LP
	 	Sales & Use
	 	1-Dec-03
	 	31-Dec-06
	 
	 	 	 	 	 	 	 	 	 	 	 	 





16









 







Schedule 4.5

to Amended and Restated Credit Agreement



	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	Local	 	 	 	Type of	 	Audit Period
	Count	 	State	 	Jurisdiction	 	Legal Entity	 	Audit	 	From	 	To
	12.

	 	TX
	 	N/A
	 	Metal Building
Components LP
	 	Sales & Use
	 	1-Sep-04
	 	28-Oct-07
	13.

	 	TX
	 	N/A
	 	NCI Building Systems
LP
	 	Sales & Use
	 	1-Jul-04
	 	28-Oct-07
	14.

	 	VA
	 	N/A
	 	Robertson-Ceco II Corp
	 	Sales & Use
	 	1-Sep-05
	 	31-Aug-08
	15.

	 	WA
	 	N/A
	 	NCI Building Systems
LP
	 	Sales & Use
	 	1-Nov-03
	 	28-Oct-07
	16.

	 	WA
	 	N/A
	 	Metal Building
Components LP
	 	Sales & Use
	 	1-Nov-03
	 	28-Oct-07
	17.

	 	WA
	 	N/A
	 	NCI Group LP
	 	Sales & Use
	 	1-Nov-03
	 	28-Oct-07
	18.

	 	NC
	 	N/A
	 	NCI Holding Corp
	 	Income / Franchise
	 	31-Oct-04
	 	28-Oct-07
	19.

	 	NC
	 	N/A
	 	A & S Building
Systems LP
	 	Income / Franchise
	 	31-Oct-04
	 	28-Oct-07
	20.

	 	NC
	 	N/A
	 	Robertson-Ceco Corp
	 	Income / Franchise
	 	1-Jan-05
	 	6-Apr-06
	21.

	 	NC
	 	N/A
	 	Robertson-Ceco II Corp
	 	Income / Franchise
	 	7-Apr-06
	 	28-Oct-07
	22.

	 	SD
	 	N/A
	 	NCI Group, Inc.
	 	Sales & Use
	 	29-Oct-07
	 	1-Nov-09
	23.

	 	SD
	 	N/A
	 	Robertson-Ceco II Corp
	 	Sales & Use
	 	1-Jul-06
	 	1-Nov-09
	24.

	 	SD
	 	NA
	 	NCI Building Systems
LP/DBCI
	 	Sales & Use
	 	1-Jan-06
	 	28-Oct-07
	25.

	 	TX
	 	N/A
	 	Robertson-Ceco II Corp
	 	Franchise
	 	30-Oct-06
	 	28-Oct-07
	26.

	 	TN
	 	Henderson County
	 	NCI Group, Inc.
	 	Property
	 	1-Jan-06
	 	1-Jan-09






17









 







Schedule 4.5

to Amended and Restated Credit Agreement





	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	Local	 	 	 	Type of	 	Audit Period
	Count	 	State	 	Jurisdiction	 	Legal Entity	 	Audit	 	From	 	To
	27.

	 	TN
	 	Shelby County
	 	NCI Group, Inc.
	 	Property
	 	Tax Year 2006
	 	Tax Year 2009
	28.

	 	CA
	 	Merced County
	 	NCI Group, Inc.
	 	Property
	 	Tax Year 2006
	 	Tax Year 2009






NCI Building Systems, Inc. & Subsidiaries

Schedule of Outstanding Statute of Limitations 
Waivers




	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Audit Period	 	Statute
	Jurisdiction	 	Legal Entity	 	Type of Tax	 	From	 	To	 	Extended To
	California

	 	NCI Building Systems LP
	 	Sales & Use
	 	1-Oct-03
	 	28-Oct-07
	 	1/31/2010
	California

	 	Steelbuilding.Com Inc
	 	Sales & Use
	 	1-Apr-05
	 	28-Oct-07
	 	1/31/2010
	Massachusetts

	 	Robertson-Ceco II Corp
	 	Sales & Use
	 	1-Apr-06
	 	1-Mar-09
	 	12/31/2009
	North Carolina

	 	Robertson-Ceco II Corp
	 	Sales & Use
	 	1-Jan-06
	 	31-Dec-08
	 	2/15/2010
	North Carolina

	 	Robertson-Ceco Corp
	 	Income/Franchise
	 	1-Jan-05
	 	6-Apr-06
	 	2/28/2010
	North Carolina

	 	Robertson-Ceco II Corp
	 	Income/Franchise
	 	7-Apr-06
	 	28-Oct-07
	 	2/28/2010
	Tennessee

	 	NCI Building Systems LP
	 	Sales & Use
	 	1-Dec-03
	 	31-Dec-06
	 	10/31/2009
	Texas

	 	Metal Building Components LP
	 	Sales & Use
	 	1-Sep-04
	 	28-Oct-07
	 	1/31/2010
	Texas

	 	NCI Building Systems LP
	 	Sales & Use
	 	1-Jul-04
	 	28-Oct-07
	 	10/31/2010
	Washington

	 	NCI Building Systems LP
	 	Sales & Use
	 	2-Nov-03
	 	28-Oct-07
	 	12/31/2009
	Washington

	 	Metal Building Components LP
	 	Sales & Use
	 	2-Nov-03
	 	28-Oct-07
	 	12/31/2009





On July 6, 2009, NCI Building Systems, Inc. filed Internal Revenue Service Form 3115 on behalf
of its subsidiary, NCI Group, Inc., to change NCI Group, Inc.’s method of amortization of certain
intangible assets.



Employment Matters





	 	1.	 	EEOC Charges Pending:






	 	 	 	Karen Stewart v. Doublecote
	 
	 	 	 	Deidre Thompson v. MBCI






	 	2.	 	EEOC charges with “No Cause” findings but not yet time-barred under right-to-sue:





18









 







Schedule 4.5

to Amended and Restated Credit Agreement









	 	 	 	Louie De La Torre v. NCI Building Systems, Inc.
	 
	 	 	 	Jose Infante v. Metal Coaters of California et al.
	 
	 	 	 	Jerry Pittman v. MBCI






	 	3.	 	Alleged WARN violation:






	 	 	 	James Layton WARN Act Complaint with the Illinois Department of Labor arising out of
the closing of the NCI Building Systems, Inc. facility in Mattoon, Illinois.






	 	4.	 	Litigation:






	 	 	 	Bernabe Lopez v. MBCI — Pending in District Court in Montgomery County, Texas. Claim
alleges retaliatory termination related to prior workers’ compensation claim. Alleged
damages unspecified. Discovery is ongoing, no trial date has been set. Case has been
dormant for more than 5 years.
	 
	 	 	 	Marion Alley v. Robertson Building Systems and Robertson Ceco II Corporation — Pending
in Ontario Superior Court of Justice, Canada. Claim alleges wrongful discharge matter.
Alleged damages of CAD $450,000. Discovery is ongoing; mediation is scheduled for
January 2010.
	 
	 	 	 	Barry Boyd v. Robertson Building Systems, Limited — Pending in Court of Queen’s Bench
of Alberta, Judicial Center of Alberta. Wrongful termination suit. Seeking
approximately CAD $150,000 in damages. Discovery is ongoing; no trial date has been
set.
	 
	 	 	 	Steve Rybchak v. Robertson Building Systems, Limited — Pending in Ontario Superior
Court of Justice. Wrongful termination suit. Seeking approximately CAD $100,000 in
damages. Discovery is ongoing; no trial date has been set. Mediation is anticipated.
	 
	 	 	 	Jacqulyn Rena Cain, on behalf of herself and all others similarly situated v. Metal
Coater of California, Inc., NCI Building Systems, L.P., Metal Building Components, L.P.
et. al. — case is now settled.
	 
	 	 	 	Jose Infante, on behalf of himself and all others similarly situated v. Metal Coater of
California, Inc., NCI Group, Inc., et al. — case is now settled.






	 	5.	 	OSHA Matters:





19









 







Schedule 4.5

to Amended and Restated Credit Agreement









	 	 	 	On 07/22/2008, a notice of citation and penalty from Cal-OSHA was sent to Star Building Systems
(incorrectly identified as a dba for NCI Building Systems, Inc.) with respect to its plant in
Lockeford, California.













20














 





			
	 	 	 
	 
	 	Schedule 4.6

to Amended and Restated Credit Agreement






Mortgaged Properties





	1.	 	660 South 91st Avenue, Tolleson, AZ
	 
	2.	 	550 Industry Way, Atwater, CA
	 
	3.	 	12101 East Brandt Road, Lockeford, CA
	 
	4.	 	9123 Center Street, Rancho Cucamonga, CA
	 
	5.	 	1601 Rogers Road, Adel, GA
	 
	6.	 	2280 Monier Avenue, Lithia Springs, GA
	 
	7.	 	1150 Marietta Industrial Drive NE, Marietta, GA
	 
	8.	 	1780 McCall Drive, Shelbyville, IN
	 
	9.	 	101 West South Street, Monticello, IA
	 
	10.	 	305 North Iris Road, Mt. Pleasant, IA
	 
	11.	 	2400 Highway 45 North, 248 Chubby Drive & 3539 Bluecutt Road, Columbus,
MS
	 
	12.	 	300 Highway 51 North, Hernando, MS
	 
	13.	 	201 Apache Drive & 951 Prisock Road, Jackson, MS
	 
	14.	 	6168 State Route 233, Rome, NY
	 
	15.	 	100 Red Iron Road, Rocky Mount, NC
	 
	16.	 	422 Kirby Drive, Lexington, TN
	 
	17.	 	1836 Dock Street, Memphis, TN
	 
	18.	 	10943 North Sam Houston Parkway West, Houston, TX
	 
	19.	 	14031 West Hardy, Houston, TX
	 
	20.	 	501 North Greenwood Street, Houston, TX
	 
	21.	 	7301 Fairview, Houston, TX





21









 





			
	 	 	 
	 
	 	Schedule 4.6

to Amended and Restated Credit Agreement







	22.	 	5244 Bear Creek Court, Irving, TX
	 
	23.	 	5711 East FM-40, Lubbock, TX
	 
	24.	 	1155 West 2300 North, Salt Lake City, UT
	 
	25.	 	1703 Ruffin Mill Road, Colonial Heights, VA
	 
	26.	 	2714 South Garfield Road, Airway Heights, WA





22









 





			
	 	 	 
	 
	 	Schedule 4.7

to Amended and Restated Credit Agreement






Intellectual Property Claims



The following Liens exist on Borrowers’ Intellectual Property assets:




	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	Registration	 	Registration	 	 
	Mark	 	Registrant	 	No.	 	Date	 	Lien Holder
	M MESCO

	 	NCI Group, Inc.
	 	 	1055914	 	 	01/11/77
	 	MBank Dallas, N.A.
(via security
agreement dated
October 23, 1987
between Anderson
Industries, Inc.
and MBank Dallas,
N.A.)
	 
	M MESCO

	 	NCI Group, Inc.
	 	 	1069517	 	 	07/12/77
	 	MBank Dallas, N.A.
(via security
agreement dated
October 23, 1987
between Anderson
Industries, Inc.
and MBank Dallas,
N.A.)
	 
	CECO

	 	Robertson-Ceco

II Corporation
	 	 	0523359	 	 	04/04/50
	 	Citicorp Industrial
Credit, Inc. as
agent (via security
agreement dated
12/9/86 between The
Ceco Corporation
and Citicorp
Industrial Credit,
Inc. as agent)
	 
	CECOLOK

	 	Robertson-Ceco

II Corporation
	 	 	1337543	 	 	05/28/85
	 	Citicorp Industrial
Credit, Inc. as
agent (via security
agreement dated
12/9/86 between The
Ceco Corporation
and Citicorp
Industrial Credit,
Inc. as agent)





[Redacted]*


* Indicates redacted and filed separately with the Securities and Exchange Commission.




23









 





			
	 	 	 
	 
	 	Schedule 4.14

to Amended and Restated Credit Agreement






Subsidiaries




	 	 	 	 	 
	Subsidiary	 	Ownership Interest	 	Jurisdiction
	NCI Group, Inc.

	 	NCI Building Systems, Inc. (100%)
	 	Nevada
	 
	 	 	 	 
	Robertson-Ceco II Corporation

	 	NCI Building Systems, Inc. (100%)
	 	Delaware
	 
	 	 	 	 
	Building Systems de Mexico S.A. de C.V.

	 	NCI Building Systems, Inc.
 (99.99999998%)
	 	Nuevo Leon, Mexico
	 
	 	 	 	 
	 

	 	NCI Group, Inc.
 (0.00000002%)	 	 
	 
	 	 	 	 
	Steelbuilding.com, Inc.

	 	NCI Group, Inc. (100%)
	 	Delaware
	 
	 	 	 	 
	Robertson Building Systems, Limited

	 	Robertson-Ceco II
 Corporation (100%)
	 	Ontario, Canada






24









 





			
	 	 	 
	 
	 	Schedule 4.15

to Amended and Restated Credit Agreement






Environmental Matters



(i)



None.



(ii)





	•	 	Robertson-Ceco II Corporation, Rocky Mount, North Carolina:






	 	i.	 	The parking lot area of the facility was reportedly used as a historical
hazardous waste site.
	 
	 	ii.	 	In 2008, the Company voluntarily remediated impacted soil containing elevated
metal/chromium concentrations in the embankment area of the facility.






	•	 	Robertson-Ceco II Corporation, Columbus, Mississippi — The rear of this facility was
reportedly used as a historical hazardous waste site.
	 
	•	 	Mesco, Southlake, Texas — The Company conducted soil remediation under the State’s
Voluntary Clean-Up (“VCP”) Program.
	 
	•	 	Metal Prep, Houston, Texas — VCP Site Investigation and Remediation (certificate of
closure received) — 11/10/06.




(iii)





	•	 	Metal Coaters, Rancho Cucamonga, California — South Coast Air Quality Management District
(“SCAQMD”) December 29, 2008 Notice of Violation (“NOV”)/Notice to Comply.
	 
	•	 	MBCI Hardy Water Well NOV — 11/29/07.
	 
	•	 	MCC Inland Empire Utilities Agency NOV — 1/25/2005.
	 
	•	 	MCC Inland Empire Utilities Agency NOV — 6/22/2004.
	 
	•	 	MCC Inland Empire Utilities Agency NOV — 5/17/2005.
	 
	•	 	MCC Inland Empire Utilities Agency NOV — 1/24/2006.
	 
	•	 	MCC Inland Empire Utilities Agency NOV — 7/23/2008.
	 
	•	 	MCC SCAQMD Notice to Comply — 4/19/2006.









25









 








			
	 	 	 
	 
	 	Schedule 4.15

to Amended and Restated Credit Agreement






	•	 	MCC SCAQMD Notice to Comply — 6/3/2005.
	 
	•	 	MCC SCAQMD Notice to Comply — 9/21/2004.
	 
	•	 	MCC SCAQMD Notice to Comply — 3/10/2009.
	 
	•	 	Metal Coaters, Jackson, MS — on 08/10/2009 MCM received a NOV from the MDEQ that it did
not submit its Waste Water Permit Renewal Application in a timely manner.
	 
	•	 	RCC, Rocky Mount, North Carolina — on 08/25/2009 this facility received a NOV for
submitting Quarterly Air Permit Report untimely.
	 
	•	 	RCC, Lockeford, CA — San Joaquin Environmental Health Department conducted a site
inspection of this facility on 08/11/ 2009 and issued a NOV/Notice to Comply.




(iv)





	•	 	Metal Coaters, Marietta, Georgia — Company was identified as a Potentially Responsible
Party (“PRP”) at the M&J Solvents site.
	 
	•	 	Robertson-Ceco II Corporation, Rocky Mount, North Carolina — Company was identified as a
PRP at the Philip Services Superfund Site.
	 
	•	 	NCI Building Systems, Inc. (as purported successor to H.H. Robertson) was identified as a
PRP at the Frontier Chemical waste disposal site in Niagara Falls, NY.




(v)





	•	 	Metal Coaters, Rancho Cucamonga, California — California Department of Toxic Substances
Control December 2005 Corrective Action Consent Agreement.
	 
	•	 	MCM DOT Hazardous Waste Final Order  — 9/2/2006.
	 
	•	 	MCC EPA RCRA Consent Agreement  — 6/30/2005.
	 
	•	 	NCI Lexington Operating Permit NOV and Civil Order  — 7/17/2006.












26









 








			
	 	 	 
	 
	 	Schedule 4.18

to Amended and Restated Credit Agreement






Insurance




     *Indicates redacted and filed separately with the Securities and Exchange Commission.



	 	 	 	 	 	 	 
	COMPANY/POLICY	 	 	 	 	 	AMOUNT OF
	NUMBER	 	TERM	 	DESCRIPTION OF COVERAGE	 	INSURANCE/LIMIT
	 
	[Redacted]*
	 	 	 	 	 	 
	[Redacted]*

	 	[Redacted]*
	 	General Aggregate
	 	[Redacted]*
	[Redacted]*

	 	 	 	Products-Completed Operations
	 	[Redacted]*
	 

	 	 	 	Each Occurrence
	 	[Redacted]*
	 

	 	 	 	Personal and Advertising Injury
	 	[Redacted]*
	 

	 	 	 	Damage to Premises Rented to You
	 	[Redacted]*
	 

	 	 	 	Medical Expense
	 	[Redacted]*
	 

	 	 	 	Employee Benefits Liability	 	 
	 

	 	 	 	     Each Employee
	 	[Redacted]*
	 

	 	 	 	     Aggregate
	 	[Redacted]*
	 
	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	 	 	Self-Insured Retention:
	 	[Redacted]*
	 
	 	 	 	 	 	 
	[Redacted]*
	 	 	 	 	 	 
	[Redacted]*

	 	[Redacted]*
	 	Liability
	 	[Redacted]*
	[Redacted]*

	 	 	 	Personal Injury Protection
	 	[Redacted]*
	 

	 	 	 	Uninsured/Underinsured Motorists
	 	[Redacted]*
	 

	 	 	 	Hired Car Physical Damage
	 	[Redacted]*
	 

	 	 	 	Comprehensive
	 	[Redacted]*
	 

	 	 	 	Collision
	 	[Redacted]*
	 
	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	 	 	NEW YORK SPECIFIC	 	 
	 

	 	 	 	Personal Injury Protection
	 	[Redacted]*
	 

	 	 	 	Aggregate No-Fault Benefits Available
	 	[Redacted]*
	 

	 	 	 	Death Benefit
	 	[Redacted]*
	 

	 	 	 	Other Necessary Expenses Per Day
	 	[Redacted]*
	 

	 	 	 	Statutory Uninsured Motorists
	 	[Redacted]*
	 
	 	 	 	 	 	 
	 

	 	 	 	Deductibles:	 	 
	 

	 	 	 	Liability, PIP & UM, Each Accident
	 	[Redacted]*
	 

	 	 	 	Comprehensive/Collision — PP & LT
	 	[Redacted]*
	 

	 	 	 	Comprehensive/Collision — All Other autos
	 	[Redacted]*
	 
	 	 	 	 	 	 
	[Redacted]*
	 	 	 	 	 	 
	[Redacted]*

	 	[Redacted]*
	 	Employers Liability	 	 
	[Redacted]*

	 	 	 	Bodily Injury by Accident, Each Accident
	 	[Redacted]*
	 

	 	 	 	Bodily Injury by Disease, Policy Limit
	 	[Redacted]*
	 

	 	 	 	Bodily Injury by Disease, Each Employee
	 	[Redacted]*
	 
	 	 	 	 	 	 
	 

	 	 	 	Deductible
	 	[Redacted]*
	[Redacted]*

	 	[Redacted]*
	 	Employers Liability	 	 
	[Redacted]*

	 	 	 	Bodily Injury by Accident, Each Accident
	 	[Redacted]*
	 

	 	 	 	Bodily Injury by Disease, Policy Limit
	 	[Redacted]*
	 

	 	 	 	Bodily Injury by Disease, Each Employee
	 	[Redacted]*
	 
	 	 	 	 	 	 
	[Redacted]*

	 	[Redacted]*
	 	Employers Liability	 	 
	[Redacted]*

	 	 	 	Bodily Injury by Accident, Each Accident
	 	[Redacted]*
	 

	 	 	 	Bodily Injury by Disease, Policy Limit
	 	[Redacted]*
	 

	 	 	 	Bodily Injury by Disease, Each Employee
	 	[Redacted]*
	 
	 	 	 	 	 	 
	[Redacted]*
	 	 	 	 	 	 
	[Redacted]*

	 	[Redacted]*
	 	Each Occurrence
	 	[Redacted]*
	[Redacted]*

	 	 	 	General Aggregate
	 	[Redacted]*
	 

	 	 	 	Products/Completed Operations Aggregate
	 	[Redacted]*
	 

	 	 	 	Crisis Response Sublimit of Insurance
	 	[Redacted]*
	 

	 	 	 	Excess Casualty Crisis Fund Limit of Insurance
	 	[Redacted]*
	 
	 	 	 	 	 	 
	 

	 	 	 	Self Insured Retention:
	 	[Redacted]*
	[Redacted]*

	 	[Redacted]*
	 	Per Occurrence
	 	[Redacted]*
	[Redacted]*

	 	 	 	General Aggregate Where Applicable
	 	[Redacted]*
	[Redacted]*
	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	[Redacted]*

	 	[Redacted]*
	 	Per Occurrence
	 	[Redacted]*
	[Redacted]*

	 	 	 	Aggregate
	 	[Redacted]*
	[Redacted]*
	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	[Redacted]*
	 	 	 	 	 	 
	[Redacted]*

	 	[Redacted]*
	 	No more in any one occurrence than the
proportionate share for the total of all
coverage(s) combined regardless of the number of
premises involved
	 	[Redacted]*
	 
	 	 	 	 	 	 
	[Redacted]*
	 	 	 	 	 	 
	 

	 	 	 	 	 	[Redacted]*
	 

	 	 	 	High Hazard Earth Movement Zones
Excluding California
	 	[Redacted]*
	 

	 	 	 	Earth Movement California
	 	[Redacted]*
	 

	 	 	 	Flood: Annual Occurrence/Aggregate — Not to
exceed the following per occurrence/aggregate
that are part of and not in additional to the
general aggregate limit
	 	[Redacted]*
	 

	 	 	 	     High Hazard Flood Zones
	 	[Redacted]*
	 

	 	 	 	Accounts Receivable
	 	[Redacted]*
	 

	 	 	 	Boiler and Machinery
	 	[Redacted]*
	 

	 	 	 	     Ammonia Damage
	 	[Redacted]*
	 

	 	 	 	     Expediting Expense
	 	[Redacted]*
	 

	 	 	 	     Substance Declared Hazardous
	 	[Redacted]*
	 

	 	 	 	     Spoilage
	 	[Redacted]*
	 

	 	 	 	     Water Damage
	 	[Redacted]*
	 

	 	 	 	Brands, Labels and Trademarks
	 	[Redacted]*
	 

	 	 	 	Business Interruption
	 	[Redacted]*
	 

	 	 	 	Coinsurance Deficiency
	 	[Redacted]*
	 

	 	 	 	Contingent Business Interruption
	 	[Redacted]*
	 

	 	 	 	Contingent Business Interruption — Severstal
North America, Inc
	 	[Redacted]*
	 

	 	 	 	Debris Removal
	 	[Redacted]*
	 

	 	 	 	Decontamination Costs Occurrence/Aggregate
	 	[Redacted]*
	 

	 	 	 	Deferred Payments
	 	[Redacted]*
	 

	 	 	 	Demolition/Increased Cost of Construction
(Building Laws)
	 	[Redacted]*
	 

	 	 	 	Devaluation
	 	[Redacted]*
	 

	 	 	 	Difference in Construction/Difference in Limits
	 	[Redacted]*
	 

	 	 	 	Errors and Omissions
	 	[Redacted]*
	 

	 	 	 	Exhibitions
	 	[Redacted]*
	 

	 	 	 	Expediting Expense
	 	[Redacted]*
	 

	 	 	 	Extra Expense
	 	[Redacted]*
	 

	 	 	 	Fine Arts
	 	[Redacted]*
	 

	 	 	 	Fire Department Service Charge
	 	[Redacted]*
	 

	 	 	 	Foreign Tax Discrepancy
	 	[Redacted]*
	 

	 	 	 	Ingress/egress
	 	[Redacted]*
	 

	 	 	 	Insured’s Liability (Property in care, custody
and control)
	 	[Redacted]*
	 

	 	 	 	Interruption by Civil or Military Authority
	 	[Redacted]*
	 

	 	 	 	Leasehold Interest (excess rent)
	 	[Redacted]*
	 

	 	 	 	Newly Acquired Locations
	 	[Redacted]*
	 

	 	 	 	Off Premises Service Interruption
	 	[Redacted]*
	 

	 	 	 	Pollution and Hazardous Material Cleanup
Occurrence/Aggregate
	 	[Redacted]*
	 

	 	 	 	Professional Fees
	 	[Redacted]*
	 

	 	 	 	Protection of Property
	 	[Redacted]*
	 

	 	 	 	Radioactive Contamination
	 	[Redacted]*
	 

	 	 	 	Rental Value
	 	[Redacted]*
	 

	 	 	 	Research and Development
	 	[Redacted]*
	 

	 	 	 	Royalties
	 	[Redacted]*
	 

	 	 	 	Soft Costs and delay in start up
	 	[Redacted]*
	 

	 	 	 	Tax treatment of certain profits
	 	[Redacted]*
	 

	 	 	 	Tenants and neighbors liability (code)
	 	[Redacted]*
	 

	 	 	 	Transit
	 	[Redacted]*
	 

	 	 	 	Unnamed/Unreported Locations
	 	[Redacted]*
	 

	 	 	 	Valuable Papers and Records
	 	[Redacted]*
	 
	 	 	 	 	 	 
	[Redacted]*

	 	 	 	Deductibles:	 	 
	 

	 	 	 	Combined all coverages except as indicated below:
	 	[Redacted]*
	 

	 	 	 	Earth Movement
	 	[Redacted]*
	 

	 	 	 	 	 	[Redacted]*
	 

	 	 	 	 	 	[Redacted]*
	 

	 	 	 	Flood
	 	[Redacted]*
	 

	 	 	 	 	 	[Redacted]*
	 

	 	 	 	 	 	[Redacted]*
	 

	 	 	 	Named Storm
	 	[Redacted]*
	 

	 	 	 	 	 	[Redacted]*
	 

	 	 	 	 	 	[Redacted]*
	 

	 	 	 	Waiting Period
	 	[Redacted]*
	 

	 	 	 	 	 	[Redacted]*
	 

	 	 	 	 	 	[Redacted]*
	 

	 	 	 	Transit
	 	[Redacted]*
	 
	 	 	 	 	 	 
	[Redacted]*

	 	[Redacted]*	 	 	 	 
	[Redacted]*
	 	 	 	 	 	 
	[Redacted]*
	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	[Redacted]*
	 	 	 	 	 	 
	[Redacted]*

	 	[Redacted]*
	 	Per Occurrence
	 	[Redacted]*
	 
	 	 	 	 	 	 
	[Redacted]*

	 	[Redacted]*
	 	Per Occurrence
	 	[Redacted]*
	 
	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	[Redacted]*
	 	 	 	 	 	 
	[Redacted]*

	 	[Redacted]*
	 	Combined Single Limit, including passengers
	 	[Redacted]*
	 

	 	 	 	Aircraft Physical Damage — 1980 Sabreliner 65
N25VC
	 	[Redacted]*
	 

	 	 	 	Aircraft Physical Damage — 1981 Sabreliner 65
N75VC
	 	[Redacted]*
	 

	 	 	 	War Risk
	 	[Redacted]*
	 

	 	 	 	Corporate Aviation Extended Coverage Amendment	 	 
	 

	 	 	 	Medical Payments
	 	[Redacted]*
	 

	 	 	 	Personal Injury
	 	[Redacted]*
	 

	 	 	 	Voluntary settlement including crew — each
passenger
	 	[Redacted]*
	 
	 	 	 	 	 	 
	[Redacted]*
	 	 	 	 	 	 
	[Redacted]*

	 	[Redacted]*
	 	Commercial General Liability — Master Control
Program Aggregate
	 	[Redacted]*
	 

	 	 	 	General Aggregate
	 	[Redacted]*
	 

	 	 	 	Products-Completed Operations
	 	[Redacted]*
	 

	 	 	 	Personal and Advertising Injury
	 	[Redacted]*
	 

	 	 	 	Each Occurrence
	 	[Redacted]*
	 

	 	 	 	Damage to Premises Rented to You
	 	[Redacted]*
	 

	 	 	 	Medical Expense
	 	[Redacted]*
	 

	 	 	 	Hired and Non-Owned Autos Liability each
accident
	 	[Redacted]*
	 

	 	 	 	Hired and Non-Owned Autos -Medical Expense each
accident
	 	[Redacted]*
	 

	 	 	 	Workers’ Compensation/Employers Liability	 	 
	 

	 	 	 	Workers’ Compensation
	 	[Redacted]*
	 

	 	 	 	Employers Liability	 	 
	 

	 	 	 	Bodily Injury by Accident, Each Accident
	 	[Redacted]*
	 

	 	 	 	Bodily Injury by Disease, Policy Limit
	 	[Redacted]*
	 

	 	 	 	Bodily Injury by Disease, Each Employee
	 	[Redacted]*
	 

	 	 	 	Repatriation
	 	[Redacted]*
	 

	 	 	 	Foreign Travel Accident and Sickness — North
American Employees (US & Canada based)	 	 
	 

	 	 	 	Coverage A, B — Accidental Death and
Dismemberment — 24 Hour Protection	 	 
	 

	 	 	 	Principal Sum, each Insured person or five times
the insured person’s annual salary whichever is
the lower
	 	[Redacted]*
	 

	 	 	 	Aggregate Limit any one accident
for all insured persons
	 	[Redacted]*
	 

	 	 	 	Coverage C — Accident and Sickness Medical
Expenses	 	 
	 

	 	 	 	Covered medical expense, each Insured person
	 	[Redacted]*
	 

	 	 	 	Covered medical expense, maximum
each Injury or Sickness
	 	[Redacted]*
	 

	 	 	 	Coverage D — Emergency Medical Evacuation	 	 
	 

	 	 	 	Covered Expenses, each Insured person
	 	[Redacted]*
	 

	 	 	 	Maximum, each Serious injury or sickness
	 	[Redacted]*
	 

	 	 	 	Coverage E — Emergency Family Travel	 	 
	 

	 	 	 	Maximum, each Emergency medical evacuation
	 	[Redacted]*
	 

	 	 	 	Coverage F — Repatriation of Remains	 	 
	 

	 	 	 	Covered Expense, each Insured Person
	 	[Redacted]*
	 

	 	 	 	Maximum for all Insured person(s)
any one Accident or Sickness
	 	[Redacted]*
	 

	 	 	 	Includes Mexico local policy	 	 
	 
	 	 	 	 	 	 
	[Redacted]*

	 	 	 	Deductible:	 	 
	 

	 	 	 	Coverage C — Accident and Sickness Medical
Expenses	 	 
	[Redacted]*

	 	[Redacted]*	 	 	 	 
	 

	 	 	 	Kidnap and Ransom Each insured event/aggregate
	 	[Redacted]*
	 

	 	 	 	     Each Loss Component Limit	 	 
	 

	 	 	 	     Ransom Monies
	 	[Redacted]*
	 

	 	 	 	     In-Transit Delivery
	 	[Redacted]*
	 

	 	 	 	     Expenses
	 	[Redacted]*
	 

	 	 	 	     Consultants/Expenses
	 	[Redacted]*
	 

	 	 	 	     Judgments, Settlements, and Defense Cost
	 	[Redacted]*
	 

	 	 	 	     Death or Dismemberment
	 	[Redacted]*
	 

	 	 	 	`	 	 
	[Redacted]*
	 	 	 	 	 	 
	[Redacted]*
	 	 	 	 	 	 
	[Redacted]*

	 	[Redacted]*
	 	Each Loss, Remediation Expense or
Legal Defense Expense
	 	[Redacted]*
	[Redacted]*

	 	 	 	Total for all Loss, Remediation
Expense, Legal Defense Expense
	 	[Redacted]*
	 

	 	 	 	Self Insured Retention:	 	 
	 

	 	 	 	Each Loss, Remediation Expense or
Legal Defense Expense
	 	[Redacted]*
	[Redacted]*
	 	 	 	 	 	 
	[Redacted]*

	 	 	 	Each Pollution Incident Limit
	 	[Redacted]*
	[Redacted]*

	 	 	 	Aggregate Limit
	 	[Redacted]*
	 

	 	 	 	Deductible
	 	[Redacted]*
	 
	 	 	 	 	 	 
	[Redacted]*
	 	 	 	 	 	 
	[Redacted]*

	 	[Redacted]*
	 	Vessel Conveyance
	 	[Redacted]*
	 

	 	 	 	Air Conveyance
	 	[Redacted]*
	 

	 	 	 	Land Conveyance
	 	[Redacted]*
	 

	 	 	 	Deductible:	 	 
	 

	 	 	 	Each claim, single loss occurrence
	 	[Redacted]*
	 
	 	 	 	 	 	 
	[Redacted]*
	 	 	 	 	 	 
	[Redacted]*

	 	[Redacted]*
	 	Limit of Liability
	 	[Redacted]*
	[Redacted]*

	 	 	 	Aggregate Limit
	 	[Redacted]*
	 

	 	 	 	Self-Insured Retention
	 	[Redacted]*
	 
	 	 	 	 	 	 
	[Redacted]*

	 	 	 	Limit of Liability
	 	[Redacted]*
	[Redacted]*

	 	[Redacted]*	 	 	 	 
	 
	 	 	 	 	 	 
	[Redacted]*
	 	 	 	 	 	 
	[Redacted]*

	 	[Redacted]*
	 	Employee Theft
	 	[Redacted]*
	[Redacted]*

	 	 	 	Forgery or Alteration
	 	[Redacted]*
	 

	 	 	 	Inside Premises — Theft of Money & Securities
	 	[Redacted]*
	 

	 	 	 	Inside Premises — Robbery, Safe Burglary — Other
Property
	 	[Redacted]*
	 

	 	 	 	Outside the Premises
	 	[Redacted]*
	 

	 	 	 	Computer Fraud
	 	[Redacted]*
	 

	 	 	 	Money Orders and Counterfeit Paper Currency
	 	[Redacted]*
	 

	 	 	 	Funds Transfer Fraud
	 	[Redacted]*
	 

	 	 	 	Deductibles:	 	 
	 

	 	 	 	Employee Theft
	 	[Redacted]*
	 

	 	 	 	Forgery or Alteration
	 	[Redacted]*
	 

	 	 	 	Inside Premises — Theft of Money & Securities
	 	[Redacted]*
	 

	 	 	 	Inside Premises — Robbery, Safe Burglary — Other
Property
	 	[Redacted]*
	 

	 	 	 	Outside the Premises
	 	[Redacted]*
	 

	 	 	 	Computer Fraud
	 	[Redacted]*
	 

	 	 	 	Money Orders and Counterfeit Paper Currency
	 	[Redacted]*
	 

	 	 	 	Funds Transfer Fraud
	 	[Redacted]*
	 
	 	 	 	 	 	 
	[Redacted]*
	 	 	 	 	 	 
	[Redacted]*

	 	[Redacted]*
	 	Limit of Liability
	 	[Redacted]*
	[Redacted]*

	 	 	 	Each Claim for all other loss,
including Defense Costs	 	 
	 

	 	 	 	Self Insured Retention
	 	[Redacted]*
	 

	 	 	 	Employer’s Security Claims — Self Insured
Retention
	 	[Redacted]*
	 
	 	 	 	 	 	 
	[Redacted]*

	 	[Redacted]*
	 	Limit of Liability
	 	[Redacted]*
	[Redacted]*
	 	 	 	 	 	 
	[Redacted]*
	 	 	 	 	 	 
	[Redacted]*

	 	[Redacted]*
	 	Limit of Liability
	 	[Redacted]*
	[Redacted]*
	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	[Redacted]*
	 	 	 	 	 	 
	[Redacted]*

	 	[Redacted]*
	 	Aggregate Limit of Liability for the Policy Year
	 	[Redacted]*
	[Redacted]*

	 	 	 	Retention:	 	 
	 

	 	 	 	Insuring Agreement B and/or C: Each
Claim other than a Securities Claim or Employment Practices Claim
	 	[Redacted]*
	 

	 	 	 	Insuring Agreement B and/or C: Each
Employment Practices Claim
	 	[Redacted]*
	 

	 	 	 	Insuring Agreement B and/or C: Each
Securities Claim
	 	[Redacted]*
	 
	 	 	 	 	 	 
	[Redacted]*

	 	[Redacted]*
	 	Limit of Liability Each Loss
	 	[Redacted]*
	[Redacted]*

	 	 	 	Aggregate Limit of Liability
	 	[Redacted]*
	 
	 	 	 	 	 	 
	[Redacted]*

	 	[Redacted]*
	 	Limit of Liability
	 	[Redacted]*
	[Redacted]*
	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	[Redacted]*

	 	[Redacted]*
	 	Aggregate Limit of Liability
	 	[Redacted]*
	[Redacted]*
	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	[Redacted]*
	 	 	 	 	 	 
	[Redacted]*

	 	[Redacted]*
	 	Limit of Liability
	 	[Redacted]*
	[Redacted]*

	 	 	 	Aggregate
	 	[Redacted]*
	 
	 	 	 	 	 	 
	[Redacted]*

	 	[Redacted]*
	 	Limit of Liability
	 	[Redacted]*
	[Redacted]*
	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	[Redacted]*

	 	[Redacted]*
	 	Limit of Liability
	 	[Redacted]*
	[Redacted]*
	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	[Redacted]*

	 	[Redacted]*
	 	Limit of Liability
	 	[Redacted]*
	[Redacted]*
	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	[Redacted]*
	 	 	 	 	 	 
	[Redacted]*
	 	 	 	 	 	 
	[Redacted]*

	 	[Redacted]*
	 	Limit of Liability
	 	[Redacted]*
	[Redacted]*

	 	[Redacted]*
	 	Limit of Liability
	 	[Redacted]*
	[Redacted]*

	 	[Redacted]*
	 	Limit of Liability
	 	[Redacted]*
	[Redacted]*

	 	[Redacted]*
	 	Limit of Liability
	 	[Redacted]*
	[Redacted]*

	 	[Redacted]*
	 	Limit of Liability
	 	[Redacted]*
	[Redacted]*

	 	[Redacted]*
	 	Limit of Liability
	 	[Redacted]*
	[Redacted]*

	 	[Redacted]*
	 	Limit of Liability
	 	[Redacted]*
	[Redacted]*

	 	[Redacted]*
	 	Limit of Liability
	 	[Redacted]*
	[Redacted]*

	 	[Redacted]*
	 	Limit of Liability
	 	[Redacted]*
	 
	 	 	 	 	 	 
	TRADE CREDIT
	 	 	 	 	 	 
	[Redacted]*

	 	[Redacted]*
	 	Limit of Liability
	 	[Redacted]*
	 
	 	 	 	 	 	 
	SPECIAL CRIME
	 	 	 	 	 	 
	[Redacted]*

	 	[Redacted]*
	 	Limit of Liability
	 	[Redacted]*





This schedule should be used for reference purposes only. Please consult the actual policies for full terms, conditions and exclusions.





* Indicates redacted and filed separately with the Securities and Exchange Commission.








27









 





Schedule 5.1(i)

to Amended and Restated Credit Agreement




Title Policies




	 	 	 	 	 
	Address	 	 
	1. 660 South 91st Avenue, Tolleson, AZ
	 	$[Redacted]*
	2. 550 Industry Way, Atwater, CA
	 	$[Redacted]*
	3. 12101 East Brandt Road, Lockeford, CA
	 	$[Redacted]*
	4. 9123 Center Street, Rancho Cucamonga, CA
	 	$[Redacted]*
	5. 1601 Rogers Road, Adel, GA
	 	$[Redacted]*
	6. 2280 Monier Avenue, Lithia Springs, GA
	 	$[Redacted]*
	7. 1150 Marietta Industrial Drive NE, Marietta, GA
	 	$[Redacted]*
	8. 1780 McCall Drive, Shelbyville, IN
	 	$[Redacted]*
	9. 101 West South Street, Monticello, IA
	 	$[Redacted]*
	10. 305 North Iris Road, Mt. Pleasant, IA
	 	$[Redacted]*
	11. 2400 Highway 45 North, 248 Chubby Drive & 3539
Bluecutt Road, Columbus, MS
	 	$[Redacted]*
	12. 300 Highway 51 North, Hernando, MS
	 	$[Redacted]*
	13. 201 Apache Drive, Jackson, MS
	 	$[Redacted]*
	14. 951 Prisock Road, Jackson, MS
	 	$[Redacted]*
	15. 6168 State Route 233, Rome, NY
	 	$[Redacted]*
	16. 100 Red Iron Road, Rocky Mount, NC
	 	$[Redacted]*
	17. 422 Kirby Drive, Lexington, TN
	 	$[Redacted]*
	18. 1836 Dock Street, Memphis, TN
	 	$[Redacted]*
	19. 10943 North Sam Houston Parkway West, Houston,
TX
	 	$[Redacted]*





 


* indicates redacted and filed separately with the Securities and Exchange Commission.


34









 






Schedule 5.1(i)

to Amended and Restated Credit Agreement




	 	 	 	 	 
	Address	 	 
	20. 14031 West Hardy, Houston, TX
	 	$[Redacted]*
	21. 501 North Greenwood Street, Houston, TX
	 	$[Redacted]*
	22. 7301 Fairview, Houston, TX
	 	$[Redacted]*
	23. 5244 Bear Creek Court, Irving, TX
	 	$[Redacted]*
	24. 5711
East FM-40, Lubbock, TX
	 	$[Redacted]*
	25. 1155 West 2300 North, Salt Lake City, UT
	 	$[Redacted]*
	26. 1703 Ruffin Mill Road, Colonial Heights, VA
	 	$[Redacted]*
	27. 2714 South Garfield Road, Airway Heights, WA
	 	$[Redacted]*





 


* indicates redacted and filed separately with the Securities and Exchange Commission.


35









 





Schedule 7.2(i)

to Amended and Restated Credit Agreement




Existing Indebtedness



Outstanding Letters of Credit (All Cash Collateralized at Approximately $12.4 Million), consisting
of the following:




	 	 	 	 	 	 	 
	Letter of Credit	 	Expiry	 	 	 	 
	Number	 	Date	 	Beneficiary	 	Amount
	SM210246

	 	9/29/2010
	 	St. Paul Fire & Marine Insurance Company
	 	$[Redacted]*
	SM211112

	 	12/1/2009
	 	Zurich American Insurance Company
	 	$[Redacted]*
	SM219776

	 	12/31/2009
	 	Zurich American Insurance Company
	 	$[Redacted]*
	SM219780

	 	4/27/2010
	 	National Union Fire Insurance Company
	 	$[Redacted]*
	SM220984

	 	1/12/2010
	 	Bank of New York Mellon Trust Co. NA,
formerly JP Morgan Trust
	 	$[Redacted]*








 




			
	*	 	indicates redacted and filed separately with the Securities and Exchange Commission.




Intercompany Debt From Robertson Building Systems Ltd. (Canada) to Robertson-Ceco II
Corporation (Approximately $850,000 U.S.)



Intercompany Debt From Building Systems de Mexico (Mexico) to NCI Group, Inc. (Approximately $4.7
Million U.S.)



Secured Interest Rate Swap Agreement entered into with Wachovia Bank, N.A. in a notional amount
equal to $65,000,000



Purchase of Equipment for IPS Plant II currently postponed, cancelable at will (Approximately €2.76
Million Outstanding)



Finance Insurance Premiums (Approximately $736,000 Remaining)



Carter County, Tennessee Industrial Revenue Bond (Approximately $420,000 Remaining)



Ordinary course of business, performance, bid, appeal, surety, supply, judgment, replevin or
similar bonds, and similar obligations (Approximate Average Amount of $6 Million), consisting of
the following:




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Bond	 	 	 	 	 	 	 	 	 	 	 	 
	Number	 	Principal	 	Obligee	 	Description	 	Bond Amount	 	Effective	 	Expiration
	CNA INSURANCE GROUP	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	15812186
	 	MATTHEW D. THIEM	 	SECRETARY OF STATE OF TEXAS	 	Notary Bond for Matthew D. Thiem	 	$	10,000.00	 	 	 	3/2/2006	 	 	 	3/2/2010	 
	15823272
	 	CANDACE LYNN COOK	 	SECRETARY OF STATE OF TEXAS	 	Notary Public Bond	 	$	10,000.00	 	 	 	5/8/2006	 	 	 	5/8/2010	 
	15820482
	 	RHONDA MURPHY	 	SECRETARY OF STATE OF TEXAS	 	Notary Public Bond for Rhonda Murphy	 	$	10,000.00	 	 	 	7/19/2006	 	 	 	7/19/2010	 
	22244845N
	 	GAIL LOUISE RIDDLE	 	FLORIDA DEPARTMENT OF STATE	 	Notary Public Bond for Gail Louise Riddle	 	$	7,500.00	 	 	 	9/14/2006	 	 	 	9/13/2010	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 






36









 








Schedule 7.2(i)

to Amended and Restated Credit Agreement






	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Bond	 	 	 	 	 	 	 	 	 	 	 	 
	Number	 	Principal	 	Obligee	 	Description	 	Bond Amount	 	Effective	 	Expiration
	15833336
	 	JAMIE S. JURGENSMIER	 	SECRETARY OF STATE OF TEXAS	 	Notary Public Bond for Jamie S. Jurgensmier	 	$	10,000.00	 	 	 	1/31/2007	 	 	 	1/31/2011	 
	15844547
	 	REBECCA L. PAUL	 	SECRETARY OF STATE OF TEXAS	 	Texas Notary for Rebecca L. Paul	 	$	10,000.00	 	 	 	3/18/2007	 	 	 	3/18/2011	 
	15874050
	 	WENDI L. HENSON	 	SECRETARY OF STATE OF TEXAS	 	Notary Public Bond for Wendi L. Henson	 	$	10,000.00	 	 	 	9/28/2007	 	 	 	9/28/2011	 
	15878436
	 	MARIANNE J. MCNEILL	 	SECRETARY OF STATE OF TEXAS	 	Notary Public Bond for Marianne J. McNeill	 	$	10,000.00	 	 	 	11/24/2007	 	 	 	11/24/2011	 
	15884757
	 	KASI WILBURN	 	SECRETARY OF STATE OF TEXAS	 	Texas Notary Public Bond for Kasi Leigh Wilburn	 	$	10,000.00	 	 	 	1/4/2008	 	 	 	1/4/2012	 
	15899260
	 	DONNA P. WALKER	 	SECRETARY OF STATE OF TEXAS	 	Notary Public Bond for Donna P. Walker	 	$	10,000.00	 	 	 	4/4/2008	 	 	 	4/4/2012	 
	15899261
	 	CHERYL E. RODRIGUEZ	 	SECRETARY OF STATE OF TEXAS	 	Notary Public Bond for Cheryl E. Rodriguez	 	$	10,000.00	 	 	 	4/11/2008	 	 	 	4/11/2012	 
	15902820
	 	MINNIE ALMAZAN	 	SECRETARY OF STATE OF TEXAS	 	Notary Public Bond for Minnie Almazan	 	$	10,000.00	 	 	 	4/24/2008	 	 	 	4/24/2012	 
	15902826
	 	ANDREW EUGENE COSTA	 	SECRETARY OF STATE OF TEXAS	 	Notary Public Bond for Andrew Eugene Costa, Attorney	 	$	10,000.00	 	 	 	5/7/2008	 	 	 	5/7/2012	 
	15902827
	 	BRADLEY W. GRAHAM	 	SECRETARY OF STATE OF TEXAS	 	Notary Public Bond for Bradley W. Graham, Attorney	 	$	10,000.00	 	 	 	5/7/2008	 	 	 	5/7/2012	 
	15902825
	 	TODD R. MOORE	 	SECRETARY OF STATE OF TEXAS	 	Notary Public Bond for Todd R. Moore, Executive VP & General Counsel	 	$	10,000.00	 	 	 	6/15/2008	 	 	 	6/15/2012	 
	15913123
	 	SHIRLEY M. ABBOTT	 	SECRETARY OF STATE OF TEXAS	 	Notary Public Bond for Shirley M. Abbott	 	$	10,000.00	 	 	 	7/29/2008	 	 	 	7/29/2012	 
	15913124
	 	YVETTE LASHUN WILSON	 	SECRETARY OF STATE OF TEXAS	 	Notary Public Bond for Yvette Lashun Wilson	 	$	10,000.00	 	 	 	7/29/2008	 	 	 	7/29/2012	 
	15913131
	 	JEANETTE Y. WHITE	 	SECRETARY OF STATE OF TEXAS	 	Notary Public Bond for Jeanette Y. Ellis	 	$	10,000.00	 	 	 	8/6/2008	 	 	 	8/6/2012	 
	15916848
	 	ROBIN JOHNSON	 	SECRETARY OF STATE OF TEXAS	 	Notary Public Bond for Robin Johnson	 	$	10,000.00	 	 	 	9/17/2008	 	 	 	9/17/2012	 
	15929120
	 	PATSY R. ABBOTT	 	SECRETARY OF STATE OF TEXAS	 	Notary Public Bond for Patsy R. Abbott -(Mesco)	 	$	10,000.00	 	 	 	12/13/2008	 	 	 	12/13/2012	 
	15936047
	 	DIANNA M. LEHMAN	 	SECRETARY OF STATE OF TEXAS	 	Notary Public Bond for Dianna M. Lehman, San Antonio	 	$	10,000.00	 	 	 	1/26/2009	 	 	 	1/26/2013	 
	15936055
	 	KATHY L. PITCOCK	 	SECRETARY OF STATE OF TEXAS	 	Notary Public Bond for Kathy L. Pitcock, HR Generalist	 	$	10,000.00	 	 	 	3/2/2009	 	 	 	3/2/2013	 
	15951469
	 	TIFFANY S. ANDERSON	 	SECRETARY OF STATE OF TEXAS	 	Notary Public Bond for Tiffany S. Anderson	 	$	10,000.00	 	 	 	5/21/2009	 	 	 	5/21/2013	 
	15951468
	 	SUSAN KING-VELEZ	 	SECRETARY OF STATE OF TEXAS	 	Notary Public Bond for Susan King-Velez	 	$	10,000.00	 	 	 	6/15/2009	 	 	 	6/15/2013	 
	CNA INSURANCE GROUP Subtotal Amount:	 	 	$	237,500.00	 	 	 	 	 	 	 	 	 






SAFECO INSURANCE COMPANIES









37









 








Schedule 7.2(i)

to Amended and Restated Credit Agreement




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Bond	 	 	 	 	 	 	 	 	 	 	 	 
	Number	 	Principal	 	Obligee	 	Description	 	Bond Amount	 	Effective	 	Expiration
	6601916
	 	STAR BUILDING SYSTEMS A DIVISION OF ROBERTSON CECO II CORP., AND NCI COMPANY	 	[Redacted]*	 	[Redacted]*	 	$	[Redacted]*	 	 	 	2/12/2009	 	 	 	2/12/2010	 
	6628989
	 	ROBERTSON-CECO II CORPORATION	 	STATE OF ARIZONA	 	Contractors License Bond	 	$	5,000.00	 	 	 	6/18/2009	 	 	 	6/18/2010	 
	6628990
	 	CECO BUILDING SYSTEMS AN UNINCORPORATED DIVISION OF ROBERTSON-CECO II CORPORATION	 	[Redacted]*	 	[Redacted]*	 	$	[Redacted]*	 	 	 	6/18/2009	 	 	 	6/18/2010	 
	6207047
	 	ROBERTSON-CECO CORPORATION	 	[Redacted]*	 	[Redacted]*	 	$	[Redacted]*	 	 	 	7/1/2009	 	 	 	7/1/2010	 
	6629001
	 	ROBERTSON-CECO II CORPORATION	 	STATE OF ARKANSAS	 	Contractor’s Bond	 	$	10,000.00	 	 	 	7/29/2009	 	 	 	7/29/2010	 
	6510708
	 	METALLIC BUILDING COMPANY, A DIVISION OF NCI GROUP, INC.	 	[Redacted]*	 	[Redacted]*	 	$	[Redacted]*	 	 	 	8/1/2009	 	 	 	8/1/2010	 
	6629004
	 	METALLIC BUILDING COMPANY	 	[Redacted]*	 	[Redacted]*	 	$	[Redacted]*	 	 	 	8/5/2009	 	 	 	8/5/2010	 
	6629006
	 	ROBERTSON-CECO II CORPORATION DBA CECO BUILDING SYSTEMS	 	[Redacted]*	 	[Redacted]*	 	$	[Redacted]*	 	 	 	8/12/2009	 	 	 	8/12/2010	 
	6629013
	 	ROBERTSON-CECO II CORP.DBA CECO BUILDING SYSTEMS	 	[Redacted]*	 	[Redacted]*	 	$	[Redacted]*	 	 	 	8/20/2009	 	 	 	8/20/2010	 
	6629014
	 	ROBERTSON-CECO II CORP. DBA CECO BUILDING SYSTEMS	 	[Redacted]*	 	[Redacted]*	 	$	[Redacted]*	 	 	 	8/20/2009	 	 	 	8/20/2010	 
	6629015
	 	ROBERTSON-CECO II CORPORATION	 	[Redacted]*	 	[Redacted]*	 	$	[Redacted]*	 	 	 	8/25/2009	 	 	 	8/25/2010	 
	6665717
	 	NCI BUILDING SYSTEMS, INC.	 	[Redacted]*	 	[Redacted]*	 	$	[Redacted]*	 	 	 	9/9/2009	 	 	 	9/9/2010	 
	6665718
	 	NCI BUILDING SYSTEMS, INC.	 	[Redacted]*	 	[Redacted]*	 	$	[Redacted]*	 	 	 	9/9/2009	 	 	 	9/9/2010	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 








 




* 
indicates redacted and filed separately with the Securities and
Exchange Commission.



38









 








Schedule 7.2(i)

to Amended and Restated Credit Agreement




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Bond	 	 	 	 	 	 	 	 	 	 	 	 
	Number	 	Principal	 	Obligee	 	Description	 	Bond Amount	 	Effective	 	Expiration
	6665719
	 	AMERICAN BUILDING COMPONENTS (ABC)	 	COMMONWEALTH OF KENTUCKY, DIVISION OF MOTOR CARRIERS	 	Highway Use Bond	 	$	1,000.00	 	 	 	9/9/2009	 	 	 	9/9/2010	 
	6665720
	 	NCI GROUP, INC.	 	[Redacted]*	 	[Redacted]*	 	$	[Redacted]*	 	 	 	9/9/2009	 	 	 	9/9/2010	 
	6665721
	 	METAL COATERS OF GEORGIA	 	[Redacted]*	 	[Redacted]*	 	$	[Redacted]*	 	 	 	9/9/2009	 	 	 	9/9/2010	 
	6629016
	 	NCI BUILDING SYSTEMS, LP DBA DBCI	 	[Redacted]*	 	[Redacted]*	 	$	[Redacted]*	 	 	 	9/10/2009	 	 	 	9/10/2010	 
	6629017
	 	NCI BUILDING SYSTEMS, LP	 	COMMONWEALTH OF KENTUCKY	 	Highway Use Bond	 	$	1,000.00	 	 	 	9/12/2009	 	 	 	9/12/2010	 
	6665723
	 	ROBERTSON-CECO II CORP.  DBA CECO BUILDING SYSTEMS	 	[Redacted]*	 	[Redacted]*	 	$	[Redacted]*	 	 	 	9/14/2009	 	 	 	9/14/2010	 
	6601833
	 	NCI GROUP, INC. DBA METAL BUILDING COMPONENTS	 	STATE OF FLORIDA DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION	 	Financial Responsible Bond	 	$	100,000.00	 	 	 	9/23/2009	 	 	 	9/23/2010	 
	6629018
	 	BARRY JOE DEESE	 	STATE OF CALIFORNIA.	 	Bond of Qualifying Individual	 	$	12,500.00	 	 	 	9/30/2009	 	 	 	9/30/2010	 
	6629019
	 	NCI BUILDING SYSTEMS, LP DBA DBCI	 	STATE OF CALIFORNIA.	 	Contractor’s Bond	 	$	12,500.00	 	 	 	9/30/2009	 	 	 	9/30/2010	 
	6601872
	 	NCI GROUP, INC.	 	[Redacted]*	 	[Redacted]*	 	$	[Redacted]*	 	 	 	12/16/2009	 	 	 	12/16/2010	 
	6170198
	 	ROBERTSON CECO II CORPORATION	 	[Redacted]*	 	[Redacted]*	 	$	[Redacted]*	 	 	 	1/1/2010	 	 	 	12/31/2010	 
	6510723
	 	CAROL P. BELLINGER	 	STATE OF WASHINGTON	 	Notary Public Bond for Carol P. Bellinger at Garco Building Systems	 	$	10,000.00	 	 	 	10/25/2008	 	 	 	10/25/2012	 
	6601897
	 	HEATHER R. BAKER	 	MISSISSIPPI SECRETARY OF STATE'S OFFICE	 	Notary Public Bond for Heather R. Baker, Hernando, MS	 	$	5,000.00	 	 	 	2/10/2009	 	 	 	2/10/2013	 
	6628999
	 	DORINDA WOODWARD	 	STATE OF TENNESSEE	 	Notary Public Bond for Dorinda K. Woodward	 	$	10,000.00	 	 	 	7/22/2009	 	 	 	7/22/2013	 
	6665713
	 	MARTHA L. GILLIAM	 	STATE OF TENNESSEE, ANDERSON COUNTY	 	“Tennessee Notary Bond for Martha L. Gilliam	 	 	 	 	 	 	 	 	 	 	 	 
	(A&S Building Systems)”
	 	$10,000.00	 	8/21/2009	 	8/21/2013	 	 	 	 	 	 	 	 	 	 	 	 
	6665729
	 	SUSAN GIBSON	 	STATE OF TENNESSEE, CAMPBELL COUNTY	 	Notary Public at Large Bond for Susan Gibson at A&S Building Systems	 	$	10,000.00	 	 	 	9/6/2009	 	 	 	9/6/2013	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 






 





* 
indicates redacted and filed separately with the Securities and
Exchange Commission.




39









 








Schedule 7.2(i)

to Amended and Restated Credit Agreement




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Bond	 	 	 	 	 	 	 	 	 	 	 	 
	Number	 	Principal	 	Obligee	 	Description	 	Bond Amount	 	Effective	 	Expiration
	6510520
	 	METAL BUILDING COMPONENTS, INC.	 	[Redacted]*	 	[Redacted]*	 	$	[Redacted]*	 	 	 	10/4/2007	 	 	 	10/4/2014	 
	SAFECO INSURANCE COMPANIES Subtotal Amount:	 	 	 	 	 	 	 	 	 	$	5,455,356.28	 
	TRAVELERS PROPERTY CASUALTY GROUP	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	104417585
	 	AMERICAN BUILDING COMPONENTS (ABC)	 	COMMONWEALTH OF KENTUCKY	 	Kentucky Highway Use Bond	 	$	1,000.00	 	 	 	3/10/2009	 	 	 	3/10/2010	 
	103013175
	 	A & S BUILDING SYSTEMS, INC.	 	[Redacted]*	 	[Redacted]*	 	$	[Redacted]*	 	 	 	5/1/2009	 	 	 	5/1/2010	 
	103218552
	 	METAL COASTERS OF GEORGIA	 	[Redacted]*	 	[Redacted]*	 	$	[Redacted]*	 	 	 	7/30/2009	 	 	 	7/30/2010	 
	104632805
	 	NCI BUILDING SYSTEMS, L.P.	 	[Redacted]*	 	[Redacted]*	 	$	[Redacted]*	 	 	 	11/17/2009	 	 	 	11/17/2010	 
	101077424
	 	NCI BUILDING SYSTEMS, INC	 	[Redacted]*	 	[Redacted]*	 	$	[Redacted]*	 	 	 	12/1/2009	 	 	 	12/1/2010	 
	104841990
	 	TAMERA L. ELLIOTT	 	STATE OF INDIANA	 	Notary Bond for Tamera L. Elliott	 	$	5,000.00	 	 	 	8/16/2007	 	 	 	8/16/2015	 
	TRAVELERS PROPERTY CASUALTY GROUP Subtotal Amount:	 	$	210,000.00	 	 	 	 	 	 	 	 	 
	 
	 
	 	 	 	 	 	TOTAL BONDS	 	$	5,902,856.28	 	 	 	 	 	 	 	 	 








 





* 
indicates redacted and filed separately with the Securities and
Exchange Commission.



40









 








Schedule 7.6(j)

to Amended and Restated Credit Agreement




Dispositions



Owned Real Property that may be sold or leased/subleased:



[Redacted]*



Equipment and Personal Property that may be sold or leased:



[Redacted]*



Borrowers, Guarantors and their respective Subsidiaries may sell, dispose of, lease or otherwise transfer to any Person (including any Borrower, Guarantor or any of their respective Subsidiaries), equipment (including manufacturing equipment and miscellaneous personal property) currently located at the following facilities:



     [Redacted]*








 




			
	*	 	indicates redacted and filed separately with the Securities and Exchange Commission.





41









 





EXHIBIT A TO

AMENDED AND RESTATED CREDIT AGREEMENT




FORM OF TERM LOAN NOTE




					
	$                    
	 	 
	 	New York, New York
	 
	 	 	 	[                     ___], 2009






          FOR VALUE RECEIVED, the undersigned, NCI BUILDING SYSTEMS, INC., a Delaware corporation (the
“Borrower”), hereby unconditionally promises to pay to                      (the “Lender”)
and its successors and assigns, at the office of Wachovia Bank, National Association, located at
[     ], in lawful money of the United States of America and in immediately available funds, the
principal amount of the lesser of (a)                                          DOLLARS ($                    ) and (b)
the aggregate unpaid principal amount of the Term Loan held by the Lender to the undersigned
pursuant to Section 2.1(a) of the Amended and Restated Credit Agreement referred to below, which
sum shall be payable in accordance with Section 2.3 of the Amended and Restated Credit Agreement.




          The Borrower further agrees to pay interest in like money at such office on the unpaid
principal amount hereof from time to time at the applicable rates per annum and on the dates set
forth in Section 3.1 of the Amended and Restated Credit Agreement until such principal amount is
paid in full (both before and after judgment).




          This Term Loan Note is one of the Term Loan Notes referred to in the Amended and Restated
Credit Agreement, dated as of October [     ], 2009 (as amended, supplemented, waived or otherwise
modified from time to time, the “Amended and Restated Credit Agreement”), among the
Borrower, the several banks and other financial institutions from time to time parties thereto
(including the Lender) (the “Lenders”), WACHOVIA BANK, NATIONAL ASSOCIATION, as
administrative agent and collateral agent for the Lenders, and WELLS FARGO SECURITIES, LLC, as lead
arranger and bookrunner, and is entitled to the benefits thereof, is secured and guaranteed as
provided therein and is subject to optional and mandatory prepayment in whole or in part as
provided therein. This Term Loan Note is subject to the terms and conditions of the Amended and
Restated Credit Agreement and in the event of any conflict or inconsistency between this Term Loan
Note and the Amended and Restated Credit Agreement, the terms and conditions of the Amended and
Restated Credit Agreement shall govern and control. Terms used herein which are defined in the
Amended and Restated Credit Agreement shall have such defined meanings unless otherwise defined
herein or unless the context otherwise requires.




          Upon the occurrence of any one or more of the Events of Default specified in the Amended and
Restated Credit Agreement, all amounts then remaining unpaid on this Term Loan Note shall become,
or may be declared to be, immediately due and payable, all as provided therein.




          All parties now and hereafter liable with respect to this Term Loan Note, whether maker,
principal, surety, guarantor, endorser or otherwise, hereby waive, to the maximum extent permitted
by applicable law, presentment, demand, protest and all other notices of any kind under this Term
Loan Note.




          THIS TERM NOTE AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY,
AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.







 









 








	 	 	 	 	 
	 	NCI BUILDING SYSTEMS, INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 




 









 





EXHIBIT B TO

AMENDED AND RESTATED CREDIT AGREEMENT




 





GUARANTEE AND COLLATERAL AGREEMENT



made by



NCI BUILDING SYSTEMS, INC.



and certain of its Subsidiaries,



in favor of



WACHOVIA BANK, NATIONAL ASSOCIATION,

as Administrative Agent and as Collateral Agent



Dated as of October 20, 2009



 








 









 








TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page
	SECTION 1 DEFINED TERMS
	 	 	2	 
	1.1 Definitions
	 	 	2	 
	1.2 Other Definitional Provisions
	 	 	9	 
	 
	 	 	 	 
	SECTION 2 GUARANTEE
	 	 	10	 
	2.1 Guarantee
	 	 	10	 
	2.2 Right of Contribution
	 	 	11	 
	2.3 No Subrogation
	 	 	11	 
	2.4 Amendments, etc. with respect to the Obligations
	 	 	11	 
	2.5 Guarantee Absolute and Unconditional
	 	 	12	 
	2.6 Reinstatement
	 	 	13	 
	2.7 Payments
	 	 	13	 
	 
	 	 	 	 
	SECTION 3 GRANT OF SECURITY INTEREST
	 	 	14	 
	3.1 Grant
	 	 	14	 
	3.2 Pledged Collateral
	 	 	15	 
	3.3 Certain Exceptions
	 	 	15	 
	3.4 Intercreditor Relations
	 	 	16	 
	 
	 	 	 	 
	SECTION 4 REPRESENTATIONS AND WARRANTIES
	 	 	17	 
	4.1 Representations and Warranties of Each Guarantor
	 	 	17	 
	4.2 Representations and Warranties of Each Grantor
	 	 	17	 
	4.3 Representations and Warranties of Each Pledgor
	 	 	20	 
	 
	 	 	 	 
	SECTION 5 COVENANTS
	 	 	21	 
	5.1 Covenants of Each Guarantor
	 	 	21	 
	5.2 Covenants of Each Grantor
	 	 	21	 
	5.3 Covenants of Each Pledgor
	 	 	27	 
	 
	 	 	 	 
	SECTION 6 REMEDIAL PROVISIONS
	 	 	29	 
	6.1 Certain Matters Relating to Accounts
	 	 	29	 
	6.2 Communications with Obligors; Grantors Remain Liable
	 	 	30	 
	6.3 Pledged Stock
	 	 	31	 
	6.4 Proceeds to be Turned Over to the Collateral Agent
	 	 	32	 
	6.5 Application of Proceeds
	 	 	33	 
	6.6 Code and Other Remedies
	 	 	33	 
	6.7 Registration Rights
	 	 	34	 
	6.8 Waiver; Deficiency
	 	 	35	 
	 
	 	 	 	 
	SECTION 7 THE COLLATERAL AGENT
	 	 	36	 
	7.1 Collateral Agent’s Appointment as Attorney-in-Fact, etc
	 	 	36	 
	7.2 Duty of Collateral Agent
	 	 	37	 
	7.3 Financing Statements
	 	 	38	 






 









 






	 	 	 	 	 
	 	 	Page
	7.4 Authority of Collateral Agent
	 	 	38	 
	7.5 Right of Inspection
	 	 	38	 
	 
	 	 	 	 
	SECTION 8 NON-LENDER SECURED PARTIES
	 	 	39	 
	8.1 Rights to Collateral
	 	 	39	 
	8.2 Appointment of Agent
	 	 	40	 
	8.3 Waiver of Claims
	 	 	40	 
	 
	 	 	 	 
	SECTION 9 MISCELLANEOUS
	 	 	40	 
	9.1 Amendments in Writing
	 	 	40	 
	9.2 Notices
	 	 	41	 
	9.3 No Waiver by Course of Conduct; Cumulative Remedies
	 	 	41	 
	9.4 Enforcement Expenses; Indemnification
	 	 	41	 
	9.5 Successors and Assigns
	 	 	42	 
	9.6 Set-Off
	 	 	42	 
	9.7 Counterparts
	 	 	42	 
	9.8 Severability
	 	 	42	 
	9.9 Section Headings
	 	 	43	 
	9.10 Integration
	 	 	43	 
	9.11 GOVERNING LAW
	 	 	43	 
	9.12 Submission to Jurisdiction; Waivers
	 	 	43	 
	9.13 Acknowledgments
	 	 	44	 
	9.14 WAIVER OF JURY TRIAL
	 	 	44	 
	9.15 Additional Grantors
	 	 	44	 
	9.16 Releases
	 	 	44	 
	9.17 Judgment
	 	 	45	 
	 
	 	 	 	 
	SCHEDULES
	 	 	 	 
	 
	 	 	 	 
	1 Notice Addresses of Guarantors
	 	 	 	 
	2 Pledged Securities
	 	 	 	 
	3 Perfection Matters
	 	 	 	 
	4 Location of Jurisdiction of Organization
	 	 	 	 
	5 Intellectual Property
	 	 	 	 
	6 Contracts
	 	 	 	 
	7 Commercial Tort Claims
	 	 	 	 
	 
	 	 	 	 
	ANNEXES
	 	 	 	 
	 
	 	 	 	 
	1 Assumption Agreement
	 	 	 	 
	2 Supplemental Agreement
	 	 	 	 











 









 








GUARANTEE AND COLLATERAL AGREEMENT




     GUARANTEE AND COLLATERAL AGREEMENT, dated as of October 20, 2009, made by NCI BUILDING
SYSTEMS, INC. (the “Borrower”) and certain Subsidiaries of the Borrower in favor of
WACHOVIA BANK, NATIONAL ASSOCIATION, as collateral agent (in such capacity, the “Collateral
Agent”) and administrative agent (in such capacity, the “Administrative Agent”) for the
banks and other financial institutions (collectively, the “Lenders”; individually, a
“Lender”) from time to time parties to the Credit Agreement described below.



W I T N E S S E T H:




     WHEREAS, pursuant to that certain Amended and Restated Credit Agreement, dated as of the date
hereof (as amended, amended and restated, waived, supplemented or otherwise modified from time to
time, together with any agreement extending the maturity of, or restructuring, refunding,
refinancing or increasing the Indebtedness under such agreement or successor agreements, the
“Credit Agreement”), among the Borrower, Wachovia Bank, National Association, as Collateral
Agent and Administrative Agent, and the other parties party thereto, the Lenders have severally
agreed to make extensions of credit to the Borrower upon the terms and subject to the conditions
set forth therein;



     WHEREAS, pursuant to that certain Loan and Security Agreement, dated as of the date hereof (as
amended, amended and restated, waived, supplemented or otherwise modified from time to time,
together with any agreement extending the maturity of, or restructuring, refunding, refinancing or
increasing the Indebtedness under such agreement or successor agreements, the “ABL Credit
Agreement”), among NCI Group, Inc., a Nevada corporation and Robertson-CECO II Corporation, a
Delaware corporation, (collectively, the “ABL Borrowers”), the Borrower, the several banks
and other financial institutions from time to time parties thereto as lenders (as “Lenders” is
further defined in the ABL Credit Agreement, the “ABL Lenders”), Wells Fargo Foothill, LLC,
as administrative agent (in its specific capacity as Administrative Agent, the “ABL
Administrative Agent”) and collateral agent (in its specific capacity as Collateral Agent, the
“ABL Collateral Agent”) for the ABL Lenders thereunder, and the other parties party
thereto, the ABL Lenders have severally agreed to make extensions of credit to the ABL Borrowers
upon the terms and subject to the conditions set forth therein;



     WHEREAS, pursuant to the ABL Credit Agreement, the Borrower and the ABL Borrowers have granted
a first priority Lien to the ABL Collateral Agent for the benefit of the holders of ABL Obligations
(as defined below) on the ABL Priority Collateral (as defined below) and a second priority Lien for
the benefit of the holders of the ABL Obligations on the Term Loan Priority Collateral (as defined
below);



     WHEREAS, the Borrower is a member of an affiliated group of companies that includes the
Borrower, the Borrower’s Domestic Subsidiaries that are party hereto and any other Domestic
Subsidiary of the Borrower that becomes a party hereto from time to time after the date hereof (all
of the foregoing collectively, the “Grantors”);



 









 





     WHEREAS, the the Collateral Agent, the Administrative Agent, the ABL Collateral Agent and the
ABL Administrative Agent and the control agent referred to therein have entered into an
Intercreditor Agreement, acknowledged by the Borrower and the Grantors, dated as of the date hereof
(as amended, amended and restated, waived, supplemented or otherwise modified from time to time
(subject to Section 9.1 hereof), the “Intercreditor Agreement”);



     WHEREAS, the Borrower and the other Grantors are engaged in related businesses, and each such
Grantor will derive substantial benefit from the making of the extensions of credit under the
Credit Agreement and the ABL Credit Agreement; and



     WHEREAS, it is a condition to the obligation of the Lenders to make their respective
extensions of credit under the Credit Agreement that the Grantors shall execute and deliver this
Agreement to the Collateral Agent for the benefit of the Secured Parties (as defined below).



     NOW, THEREFORE, in consideration of the premises and to induce the Administrative Agent and
the Lenders to enter into the Credit Agreement and to induce the Lenders to make their respective
extensions of credit to the Borrower thereunder, each Grantor hereby agrees with the Administrative
Agent and the Collateral Agent, for the benefit of the Secured Parties, as follows:



SECTION 1 DEFINED TERMS




          1.1 Definitions. (a) Unless otherwise defined herein, terms defined in the Credit
Agreement and used herein shall have the meanings given to them in the Credit Agreement, and the
following terms that are defined in the Code (as in effect on the date hereof) are used herein as
so defined: Chattel Paper, Commercial Tort Claims, Deposit Accounts, Documents, Electronic Chattel
Paper, Equipment, Farm Products, Fixtures, Goods, Letter of Credit Rights, Money, Promissory
Notes, Records and Securities Account.




          (b) The following terms shall have the following meanings:




     “ABL Administrative Agent”: as defined in the recitals hereto.



     “ABL Borrowers”: as defined in the recitals hereto.



     “ABL Collateral Agent”: as defined in the recitals hereto.



     “ABL Credit Agreement”: as defined in the recitals hereto.



     “ABL Lenders”: as defined in the recitals hereto.



     “ABL Obligations”: “Working Capital Obligations” as defined in the Intercreditor
Agreement.



     “ABL Priority Collateral”: “Working Capital Priority Collateral” as defined in the
Intercreditor Agreement.



2









 





     “Accounts”: all accounts (as defined in the Code) of each Grantor, including, without
limitation, all Accounts Receivable of such Grantor.



     “Accounts Receivable”: any right to payment for goods sold or leased or for services
rendered, which is not evidenced by an instrument (as defined in the Code) or Chattel Paper.



     “Additional Agent”: as defined in the Intercreditor Agreement.



     “Additional Collateral Documents”: as defined in the Intercreditor Agreement.



     “Additional Obligations”: as defined in the Intercreditor Agreement.



     “Adjusted Net Worth”: of any Guarantor at any time, shall mean the greater of (x) $0
and (y) the amount by which the fair saleable value of such Guarantor’s assets on the date of the
respective payment hereunder exceeds its debts and other liabilities (including contingent
liabilities, but without giving effect to any of its obligations under this Agreement or any other
Loan Document, the ABL Credit Agreement or any ABL Facility Document) on such date.



     “Administrative Agent”: as defined in the preamble hereto.



     “Agreement”: this Guarantee and Collateral Agreement, as the same may be amended,
restated, supplemented, waived or otherwise modified from time to time.



     “Applicable Law”: as defined in Section 9.8 hereof.



     “Bank Products Agreement”: any agreement pursuant to which a bank or other financial
institution agrees to provide treasury or cash management services (including, without limitation,
controlled disbursements, automated clearinghouse transactions, return items, netting, overdrafts
and interstate depository network services).



     “Bankruptcy Case”: (i) The Borrower or any of its Subsidiaries commencing any case,
proceeding or other action (A) under any existing or future law of any jurisdiction, domestic or
foreign, relating to bankruptcy, insolvency, reorganization, conservatorship or relief of debtors,
seeking to have an order for relief entered with respect to it, or seeking to adjudicate it a
bankrupt or insolvent, or seeking reorganization, arrangement, adjustment, winding-up, liquidation,
dissolution, composition or other relief with respect to it or its debts, or (B) seeking
appointment of a receiver, trustee, custodian, conservator or other similar official for it or for
all or any substantial part of its assets, or the Borrower or any of its Subsidiaries making a
general assignment for the benefit of its creditors; or (ii) there being commenced against the
Borrower or any of its Subsidiaries any case, proceeding or other action of a nature referred to in
clause (i) above which (A) results in the entry of an order for relief or any such adjudication or
appointment or (B) remains undismissed, undischarged or unbonded for a period of 60 days.



     “Borrower Obligations”: the collective reference to all obligations and liabilities of
the Borrower in respect of the unpaid principal of and interest on (including, without limitation,
interest accruing after the maturity of the Loans and interest accruing after the filing of any
petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding,
relating to the Borrower, whether or not a claim for post-filing or post-petition



3









 




interest is allowed in such proceeding) the Loans, and all other obligations and liabilities
of the Borrower to the Secured Parties, whether direct or indirect, absolute or contingent, due or
to become due, or now existing or hereafter incurred, which may arise under, out of, or in
connection with, the Credit Agreement, the Loans, the other Loan Documents, any Interest Rate
Protection Agreement, Permitted Hedging Arrangement or Bank Products Agreement entered into with
any Person who was at the time of entry into such agreement a Lender or an Affiliate of any Lender,
any Guarantee of the Borrower or any of its Subsidiaries as to which any Secured Party is a
beneficiary, the provision of cash management services by any Lender or an Affiliate thereof to the
Borrower or any Subsidiary thereof, or any other document made, delivered or given in connection
therewith, in each case whether on account of principal, interest, reimbursement obligations,
amounts payable in connection with the provision of such cash management services or a termination
of any transaction entered into pursuant to any such Interest Rate Protection Agreement or
Permitted Hedging Arrangement, fees, indemnities, costs, expenses or otherwise (including, without
limitation, all reasonable fees, expenses and disbursements of counsel to the Administrative Agent
or any other Secured Party that are required to be paid by the Borrower pursuant to the terms of
the Credit Agreement or any other Loan Document).




     “Borrower”: as defined in the preamble hereto.



     “Code”: the Uniform Commercial Code as from time to time in effect in the State of
New York.



     “Collateral”: as defined in Section 3; provided that, for purposes of Section
6.5, Section 8 and Section 9.16(b), “Collateral” shall have the meaning assigned to such term in
the Credit Agreement.



     “Collateral Account Bank”: Wachovia Bank, National Association, an Affiliate thereof
or another bank which at all times is a Lender as selected by the relevant Grantor and consented to
in writing by the Collateral Agent (such consent not to be unreasonably withheld or delayed).



     “Collateral Agent”: as defined in the preamble hereto.



     “Collateral Proceeds Account”: a non-interest bearing cash collateral account
established and maintained by the relevant Grantor at an office of the Collateral Account Bank in
the name, and in the sole dominion and control of, the Collateral Agent for the benefit of the
Secured Parties.



     “Commercial Tort Action”: any action, other than an action primarily seeking
declaratory or injunctive relief with respect to claims asserted or expected to be asserted by
Persons other than the Grantors, that is commenced by a Grantor in the courts of the United States
of America, any state or territory thereof or any political subdivision of any such state or
territory, in which any Grantor seeks damages arising out of torts committed against it that would
reasonably be expected to result in a damage award to it exceeding $2,000,000.



     “Contracts”: with respect to any Grantor, all contracts, agreements, instruments and
indentures in any form and portions thereof (except for contracts listed on Schedule 6
hereto), to which such Grantor is a party or under which such Grantor or any property of such
Grantor is



4









 




subject, as the same may from time to time be amended, supplemented, waived or otherwise
modified, including, without limitation, (i) all rights of such Grantor to receive moneys due and
to become due to it thereunder or in connection therewith, (ii) all rights of such Grantor to
damages arising thereunder and (iii) all rights of such Grantor to perform and to exercise all
remedies thereunder.




     “Copyright Licenses”: with respect to any Grantor, all United States written license
agreements of such Grantor providing for the grant by or to such Grantor of any right under any
United States copyright, other than agreements with any Person who is an Affiliate or a Subsidiary
of the Borrower or such Grantor, including, without limitation, any material license agreements
listed on Schedule 5 hereto, subject, in each case, to the terms of such license
agreements, and the right to prepare for sale, sell and advertise for sale, all Inventory now or
hereafter covered by such licenses.



     “Copyrights”: with respect to any Grantor, all of such Grantor’s right, title and
interest in and to all United States copyrights, whether or not the underlying works of authorship
have been published or registered, all United States copyright registrations and copyright
applications, including, without limitation, any copyright registrations and copyright applications
listed on Schedule 5 hereto, and (i) all renewals thereof, (ii) all income, royalties,
damages and payments now and hereafter due and/or payable with respect thereto, including, without
limitation, payments under all licenses entered into in connection therewith, and damages and
payments for past or future infringements thereof and (iii) the right to sue or otherwise recover
for past, present and future infringements and misappropriations thereof.



     “Credit Agreement”: has the meaning provided in the recitals hereto.



     “Excluded Assets”: as defined in Section 3.3.



     “Foreign Intellectual Property”: all non-U.S. Intellectual Property.



     “General Fund Account”: the general fund account of the relevant Grantor established
at the same office of the Collateral Account Bank as the Collateral Proceeds Account.



     “General Intangibles”: all “general intangibles” as that term is defined in Section
9-102(a)(42) of the Uniform Commercial Code in effect in the State of New York on the date hereof.



     “Grantor”: as defined in the recitals hereto.



     “Guarantor Obligations”: with respect to any Guarantor, the collective reference to
(i) the Obligations guaranteed by such Guarantor pursuant to Section 2 and (ii) all obligations and
liabilities of such Guarantor that may arise under or in connection with this Agreement or any
other Loan Document to which such Guarantor is a party, any Interest Rate Protection Agreement,
Permitted Hedging Arrangement or Bank Products Agreement entered into with any Person who was at
the time of entry into such agreement a Lender or an Affiliate of any Lender, any Guarantee of the
Borrower or any of its Subsidiaries as to which any Secured Party is a beneficiary, the provision
of cash management services by any Lender or an Affiliate thereof to the Borrower or any Subsidiary
thereof, or any other document made, delivered or given in



5









 




connection therewith of such Guarantor, in each case whether on account of guarantee
obligations, reimbursement obligations, fees, indemnities, costs, expenses or otherwise (including,
without limitation, all fees and disbursements of counsel to the Administrative Agent or any other
Secured Party that are required to be paid by such Guarantor pursuant to the terms of this
Agreement or any other Loan Document).




     “Guarantors”: the collective reference to each Grantor other than the Borrower.



     “Instruments”: has the meaning specified in Article 9 of the Code, but excluding the
Pledged Securities.



     “Intellectual Property”: with respect to any Grantor, the collective reference to
such Grantor’s Copyrights, Copyright Licenses, Patents, Patent Licenses, Trade Secrets, Trade
Secret Licenses, Trademarks and Trademark Licenses.



     “Intercreditor Agreement”: as defined in the recitals hereto.



     “Intercompany Note”: with respect to any Grantor, any promissory note in a principal
amount in excess of $2,000,000 evidencing loans made by such Grantor to the Borrower or any of its
Subsidiaries.



     “Inventory”: with respect to any Grantor, all inventory (as defined in the Code) of
such Grantor.



     “Investment Property”: the collective reference to (i) all “investment property” as
such term is defined in Section 9-102(a)(49) of the Uniform Commercial Code in effect in the State
of New York on the date hereof (other than any Capital Stock of any Foreign Subsidiary and other
than any Capital Stock excluded from the definition of “Pledged Stock”) and (ii) whether or not
constituting “investment property” as so defined, all Pledged Securities.



     “Issuers”: the collective reference to the Persons identified on Schedule 2
as the issuers of Pledged Stock, together with any successors to such companies.



     “Lender”: as defined in the preamble hereto.



     “Non-Lender Secured Parties”: the collective reference to any person who, at the time
of entering into any Interest Rate Protection Agreement or Permitted Hedging Arrangement or Banks
Products Agreement secured hereby, was a Lender or an Affiliate of any Lender and their respective
successors and assigns.



     “Obligations”: (i) in the case of the Borrower, its Borrower Obligations and (ii) in
the case of each Guarantor, its Guarantor Obligations.



     “Patent Licenses”: with respect to any Grantor, all United States written license
agreements of such Grantor providing for the grant by or to such Grantor of any right under any
United States patent, patent application, or patentable invention other than agreements with any
Person who is an Affiliate or a Subsidiary of the Borrower or such Grantor, including, without
limitation, the material license agreements listed on Schedule 5 hereto, subject, in each
case, to



6









 




the terms of such license agreements, and the right to prepare for sale, sell and advertise
for sale, all Inventory now or hereafter covered by such licenses.




     “Patents”: with respect to any Grantor, all of such Grantor’s right, title and
interest in and to all United States patents, patent applications and patentable inventions and all
reissues and extensions thereof, including, without limitation, all patents and patent applications
identified in Schedule 5 hereto, and including, without limitation, (i) all inventions and
improvements described and claimed therein, (ii) the right to sue or otherwise recover for any and
all past, present and future infringements and misappropriations thereof, (iii) all income,
royalties, damages and other payments now and hereafter due and/or payable with respect thereto
(including, without limitation, payments under all licenses entered into in connection therewith,
and damages and payments for past, present or future infringements thereof), and (iv) all other
rights corresponding thereto in the United States and all reissues, divisions, continuations,
continuations-in-part, substitutes, renewals, and extensions thereof, all improvements thereon, and
all other rights of any kind whatsoever of such Grantor accruing thereunder or pertaining thereto.



     “Pledged Collateral”: as to any Pledgor, the Pledged Securities now owned or at any
time hereafter acquired by such Pledgor, and any Proceeds thereof.



     “Pledged Notes”: with respect to any Pledgor, all Intercompany Notes at any time
issued to, or held or owned by, such Pledgor.



     “Pledged Securities”: the collective reference to the Pledged Notes and the Pledged
Stock.



     “Pledged Stock”: with respect to any Pledgor, the shares of Capital Stock listed on
Schedule 2 as held by such Pledgor, together with any other shares, stock certificates,
options or rights of any nature whatsoever in respect of the Capital Stock of any Issuer that may
be issued or granted to, or held by, such Pledgor while this Agreement is in effect
(provided that in no event shall there be pledged, nor shall any Pledgor be required to
pledge, directly or indirectly, (i) more than 65% of any series of the outstanding Capital Stock of
any Foreign Subsidiary, (ii) any of the Capital Stock of a Subsidiary of a Foreign Subsidiary and
(iii) de minimis shares of a Foreign Subsidiary held by any Pledgor as a nominee or in a similar
capacity).



     “Pledgor”: the Borrower (with respect to Pledged Stock of the entities listed on
Schedule 2 hereto under the name of the Borrower and all other Pledged Collateral of the
Borrower) and each other Grantor (with respect to Pledged Securities held by such Grantor and all
other Pledged Collateral of such Grantor).



     “Proceeds”: all “proceeds” as such term is defined in Section 9-102(a)(64) of the
Uniform Commercial Code in effect in the State of New York on the date hereof and, in any event,
Proceeds of Pledged Securities shall include, without limitation, all dividends or other income
from the Pledged Securities, collections thereon or distributions or payments with respect thereto.



     “Restrictive Agreements”: as defined in Section 3.3(a).



7









 





     “Secured Bank Product Agreement”: any Interest Rate Protection Agreement, Permitted
Hedging Arrangement or Bank Products Agreement entered into with any Person who was at the time of
entry into such agreement a Lender or an Affiliate of any Lender, or any agreement providing for
the provision of cash management services by any Lender or an Affiliate thereof to the Borrower or
any Subsidiary thereof, or any other document made, delivered or given in connection therewith of
such Guarantor.



     “Secured Parties”: the collective reference to (i) the Administrative Agent, the
Collateral Agent and each Other Representative, (ii) the Lenders, (iii) with respect to any
Interest Rate Protection Agreement, Permitted Hedging Arrangement or Bank Products Agreement with
the Borrower or any of its Subsidiaries, any counterparty thereto that, at the time such agreement
or arrangement was entered into, was a Lender or an Affiliate of any Lender and (iv) their
respective successors and assigns and their permitted transferees and endorsees.



     “Security Collateral”: with respect to any Grantor, means, collectively, the
Collateral (if any) and the Pledged Collateral (if any) of such Grantor.



     “Specified Asset”: as defined in Section 4.2.2 hereof.



     “Term Loan Priority Collateral”: as defined in the Intercreditor Agreement.



     “Trade Secret Licenses”: with respect to any Grantor, all United States written
license agreements of such Grantor providing for the grant by or to such Grantor of any right under
any trade secrets, including, without limitation, know how, processes, formulae, compositions,
designs, and confidential business and technical information, and all rights of any kind whatsoever
accruing thereunder or pertaining thereto, other than agreements with any Person who is an
Affiliate or a Subsidiary of the Borrower or such Grantor, subject, in each case, to the terms of
such license agreements, and the right to prepare for sale, sell and advertise for sale, all
Inventory now or hereafter covered by such licenses.



     “Trade Secrets”: with respect to any Grantor, all of such Grantor’s right, title and
interest in and to all United States trade secrets, including, without limitation, know-how,
processes, formulae, compositions, designs, and confidential business and technical information,
and all rights of any kind whatsoever accruing thereunder or pertaining thereto, including, without
limitation, (i) all income, royalties, damages and payments now and hereafter due and/or payable
with respect thereto, including, without limitation, payments under all licenses, non-disclosure
agreements and memoranda of understanding entered into in connection therewith, and damages and
payments for past or future misappropriations thereof, and (ii) the right to sue or otherwise
recover for past, present or future misappropriations thereof.



     “Trademark Licenses”: with respect to any Grantor, all United States written license
agreements of such Grantor providing for the grant by or to such Grantor of any right under any
United States trademarks, service marks, trade names, trade dress or other indicia of trade origin
or business identifiers, other than agreements with any Person who is an Affiliate or a Subsidiary
of the Borrower or such Grantor, including, without limitation, the material license agreements
listed on Schedule 5 hereto, subject, in each case, to the terms of such license
agreements, and



8









 




the right to prepare for sale, sell and advertise for sale, all Inventory now or hereafter
covered by such licenses.




     “Trademarks”: with respect to any Grantor, all of such Grantor’s right, title and
interest in and to all United States trademarks, service marks, trade names, trade dress or other
indicia of trade origin or business identifiers, trademark and service mark registrations, and
applications for trademark or service mark registrations (except for “intent to use” applications
for trademark or service mark registrations filed pursuant to Section 1(b) of the Lanham Act, 15
U.S.C. § 1051, unless and until an Amendment to Allege Use or a Statement of Use under Sections
1(c) and 1(d) of said Act has been filed, it being understood and agreed that the carve out in this
parenthetical shall be applicable only if and for so long as a grant of a security interest in, or
the exercise of rights or remedies with respect to, such intent to use application would invalidate
or otherwise jeopardize Grantor’s rights therein), and any renewals thereof, including, without
limitation, each registration and application identified in Schedule 5 hereto, and
including, without limitation, (i) the right to sue or otherwise recover for any and all past,
present and future infringements or dilutions thereof, (ii) all income, royalties, damages and
other payments now and hereafter due and/or payable with respect thereto (including, without
limitation, payments under all licenses entered into in connection therewith, and damages and
payments for past or future infringements thereof), and (iii) all other rights corresponding
thereto in the United States and all other rights of any kind whatsoever of such Grantor accruing
thereunder or pertaining thereto in the United States, together in each case with the goodwill of
the business connected with the use of, and symbolized by, each such trademark, service mark, trade
name, trade dress or other indicia of trade origin or business identifiers.



     “Vehicles”: all cars, trucks, trailers, construction and earth moving equipment and
other vehicles covered by a certificate of title law of any state and all tires and other
appurtenances to any of the foregoing.



          1.2 Other Definitional Provisions. (a) The words “hereof”, “herein”, “hereto” and
“hereunder” and words of similar import when used in this Agreement shall refer to this Agreement
as a whole and not to any particular provision of this Agreement, and Section, Schedule and Annex
references are to this Agreement unless otherwise specified.




          (b) The meanings given to terms defined herein shall be equally applicable to both the
singular and plural forms of such terms.




          (c) Where the context requires, terms relating to the Collateral, Pledged Collateral or
Security Collateral, or any part thereof, when used in relation to a Grantor shall refer to such
Grantor’s Collateral, Pledged Collateral or Security Collateral or the relevant part thereof.




          (d) All references in this Agreement to any of the property described in the definition of the
term “Collateral” or “Pledged Collateral”, or to any Proceeds thereof, shall be deemed to be
references thereto only to the extent the same constitute Collateral or Pledged Collateral,
respectively.







9









 








SECTION 2 GUARANTEE




          2.1 Guarantee. (a) Each of the Guarantors hereby, jointly and severally,
unconditionally and irrevocably, guarantees, as primary obligor and not merely as surety, to the
Administrative Agent, for the benefit of the applicable Secured Parties, the prompt and complete
payment and performance by the Borrower when due and payable (whether at the stated maturity, by
acceleration or otherwise) of the Borrower Obligations of the Borrower owed to the applicable
Secured Parties.




          (b) Anything herein or in any other Loan Document to the contrary notwithstanding, the maximum
liability of each Guarantor hereunder and under the other Loan Documents shall in no event exceed
the amount that can be guaranteed by such Guarantor under applicable law, including applicable
federal and state laws relating to the insolvency of debtors; provided that, to the maximum
extent permitted under applicable law, it is the intent of the parties hereto that (x) the amount
of liability of any of the Guarantors or any guarantee in respect of Indebtedness represented by
the Senior Notes or Subordinated Indebtedness shall be reduced before the amount of the liability
of the respective Guarantor is reduced hereunder and (y) the rights of contribution of each
Guarantor provided in following Section 2.2 be included as an asset of the respective Guarantor in
determining the maximum liability of such Guarantor hereunder.




          (c) Each Guarantor agrees that the Borrower Obligations guaranteed by it hereunder may at any
time and from time to time exceed the amount of the liability of such Guarantor hereunder without
impairing the guarantee contained in this Section 2 or affecting the rights and remedies of the
Administrative Agent or any other Secured Party hereunder.




          (d) The guarantee contained in this Section 2 shall remain in full force and effect until the
earlier to occur of (i) the first date on which all the Loans, all other Borrower Obligations then
due and owing, and the obligations of each Guarantor under the guarantee contained in this Section
2 then due and owing shall have been satisfied by payment in full in cash, or (ii) as to any
Guarantor, the sale or other disposition of all of the Capital Stock of such Guarantor (to a Person
other than the Borrower or a Subsidiary of the Borrower) as permitted under the Credit Agreement.




          (e) No payment made by the Borrower, any of the Guarantors, any other guarantor or any other
Person or received or collected by the Administrative Agent or any other Secured Party from the
Borrower, any of the Guarantors, any other guarantor or any other Person by virtue of any action or
proceeding or any set-off or appropriation or application at any time or from time to time in
reduction of or in payment of any of the Borrower Obligations shall be deemed to modify, reduce,
release or otherwise affect the liability of any Guarantor hereunder which shall, notwithstanding
any such payment (other than any payment made by such Guarantor in respect of the Borrower
Obligations or any payment received or collected from such Guarantor in respect of any of the
Borrower Obligations), remain liable for the Borrower Obligations of the Borrower guaranteed by it
hereunder up to the maximum liability of such Guarantor hereunder until the earlier to occur of (i)
the first date on which all the Loans, and all other Borrower Obligations then due and owing, are
paid in full in cash or (ii) the sale or other






10









 







disposition of all of the Capital Stock of such Guarantor (to a Person other than the Borrower
or a Subsidiary of the Borrower) as permitted under the Credit Agreement.




          2.2 Right of Contribution. Each Guarantor hereby agrees that to the extent that a
Guarantor shall have paid more than its proportionate share (based, to the maximum extent permitted
by law, on the respective Adjusted Net Worths of the Guarantors on the date the respective payment
is made) of any payment made hereunder, such Guarantor shall be entitled to seek and receive
contribution from and against any other Guarantor hereunder that has not paid its proportionate
share of such payment. Each Guarantor’s right of contribution shall be subject to the terms and
conditions of Section 2.3. The provisions of this Section 2.2 shall in no respect limit the
obligations and liabilities of any Guarantor to the Administrative Agent and the other Secured
Parties, and each Guarantor shall remain liable to the Administrative Agent and the other Secured
Parties for the full amount guaranteed by such Guarantor hereunder.




          2.3 No Subrogation. Notwithstanding any payment made by any Guarantor hereunder or
any set-off or application of funds of any Guarantor by the Collateral Agent or any other Secured
Party, no Guarantor shall be entitled to be subrogated to any of the rights of the Collateral Agent
or any other Secured Party against the Borrower or any other Guarantor or any collateral security
or guarantee or right of offset held by the Collateral Agent or any other Secured Party for the
payment of the Borrower Obligations, nor shall any Guarantor seek or be entitled to seek any
contribution or reimbursement from the Borrower or any other Guarantor in respect of payments made
by such Guarantor hereunder, until all amounts owing to the Collateral Agent and the other Secured
Parties by the Borrower on account of the Borrower Obligations are paid in full in cash. If any
amount shall be paid to any Guarantor on account of such subrogation rights at any time when all of
the Borrower Obligations shall not have been paid in full in cash, such amount shall be held by
such Guarantor in trust for the Collateral Agent and the other Secured Parties, segregated from
other funds of such Guarantor, and shall, forthwith upon receipt by such Guarantor, be turned over
to the Collateral Agent in the exact form received by such Guarantor (duly indorsed by such
Guarantor to the Collateral Agent, if required), to be held as collateral security for all of the
Borrower Obligations (whether matured or unmatured) guaranteed by such Guarantor and/or then or at
any time thereafter may be applied against any Borrower Obligations, whether matured or unmatured,
in such order as the Collateral Agent may determine.




          2.4 Amendments, etc. with respect to the Obligations. To the maximum extent permitted
by law, each Guarantor shall remain obligated hereunder notwithstanding that, without any
reservation of rights against any Guarantor and without notice to or further assent by any
Guarantor, any demand for payment of any of the Borrower Obligations made by the Collateral Agent,
the Administrative Agent or any other Secured Party may be rescinded by the Collateral Agent, the
Administrative Agent or such other Secured Party and any of the Borrower Obligations continued, and
the Borrower Obligations, or the liability of any other Person upon or for any part thereof, or any
collateral security or guarantee therefor or right of offset with respect thereto, may, from time
to time, in whole or in part, be renewed, extended, amended, waived, modified, accelerated,
compromised, subordinated, waived, surrendered or released by the Collateral Agent, the
Administrative Agent or any other Secured Party, and the Credit Agreement and the other Loan
Documents and any other documents executed and delivered in connection therewith may be amended,
waived, modified, supplemented or terminated, in whole






11









 







or in part, as the Collateral Agent or the Administrative Agent (or the Required Lenders under
the Credit Agreement or the applicable Lenders(s), as the case may be) may deem advisable from time
to time, and any collateral security, guarantee or right of offset at any time held by the
Collateral Agent, the Administrative Agent or any other Secured Party for the payment of any of the
Borrower Obligations may be sold, exchanged, waived, surrendered or released. None of the
Collateral Agent, the Administrative Agent nor any other Secured Party shall have any obligation to
protect, secure, perfect or insure any Lien at any time held by it as security for any of the
Borrower Obligations or for the guarantee contained in this Section 2 or any property subject
thereto, except to the extent required by applicable law.




          2.5 Guarantee Absolute and Unconditional. Each Guarantor waives, to the maximum
extent permitted by applicable law, any and all notice of the creation, renewal, extension or
accrual of any of the Borrower Obligations and notice of or proof of reliance by the Collateral
Agent, the Administrative Agent or any other Secured Party upon the guarantee contained in this
Section 2 or acceptance of the guarantee contained in this Section 2; each of the Borrower
Obligations, and any obligation contained therein, shall conclusively be deemed to have been
created, contracted or incurred, or renewed, extended, amended or waived, in reliance upon the
guarantee contained in this Section 2; and all dealings between the Borrower and any of the
Guarantors, on the one hand, and the Collateral Agent, the Administrative Agent and the other
Secured Parties, on the other hand, likewise shall be conclusively presumed to have been had or
consummated in reliance upon the guarantee contained in this Section 2. Each Guarantor waives, to
the maximum extent permitted by applicable law, diligence, presentment, protest, demand for payment
and notice of default or nonpayment to or upon the Borrower or any of the other Guarantors with
respect to any of the Borrower Obligations. Each Guarantor understands and agrees, to the extent
permitted by law, that the guarantee contained in this Section 2 shall be construed as a
continuing, absolute and unconditional guarantee of payment and not of collection. Each Guarantor
hereby waives, to the maximum extent permitted by applicable law, any and all defenses (other than
any suit for breach of a contractual provision of any of the Loan Documents) that it may have
arising out of or in connection with any and all of the following: (a) the validity or
enforceability of the Credit Agreement or any other Loan Document, any of the Borrower Obligations
or any other collateral security therefor or guarantee or right of offset with respect thereto at
any time or from time to time held by the Collateral Agent, the Administrative Agent or any other
Secured Party, (b) any defense, set-off or counterclaim (other than a defense of payment or
performance) that may at any time be available to or be asserted by the Borrower against the
Collateral Agent, the Administrative Agent or any other Secured Party, (c) any change in the time,
place, manner or place of payment, amendment, or waiver or increase in any of the Obligations, (d)
any exchange, taking, or release of Security Collateral, (e) any change in the structure or
existence of the Borrower or any other Guarantor, (f) any application of Security Collateral to any
of the Obligations, (g) any law, regulation or order of any jurisdiction, or any other event,
affecting any term of any Obligation or the rights of the Collateral Agent, the Administrative
Agent or any other Secured Party with respect thereto, including, without limitation: (i) the
application of any such law, regulation, decree or order, including any prior approval, which would
prevent the exchange of any currency (other than Dollars) for Dollars or the remittance of funds
outside of such jurisdiction or the unavailability of Dollars in any legal exchange market in such
jurisdiction in accordance with normal commercial practice, (ii) a declaration of banking
moratorium or any suspension of payments by banks in such jurisdiction or the imposition by such
jurisdiction or any Governmental Authority thereof of






12









 







any moratorium on, the required rescheduling or restructuring of, or required approval of
payments on, any indebtedness in such jurisdiction, (iii) any expropriation, confiscation,
nationalization or requisition by such country or any Governmental Authority that directly or
indirectly deprives the Borrower of any assets or their use, or of the ability to operate its
business or a material part thereof, or (iv) any war (whether or not declared), insurrection,
revolution, hostile act, civil strife or similar events occurring in such jurisdiction which has
the same effect as the events described in clause (i), (ii) or (iii) above (in each of the cases
contemplated in clauses (i) through (iv) above, to the extent occurring or existing on or at any
time after the date of this Agreement), or (h) any other circumstance whatsoever (other than
payment in full in cash of the Borrower Obligations guaranteed by it hereunder) (with or without
notice to or knowledge of the Borrower or such Guarantor) that constitutes, or might be construed
to constitute, an equitable or legal discharge of the Borrower for the Borrower Obligations, or of
such Guarantor under the guarantee contained in this Section 2, in bankruptcy or in any other
instance. When making any demand hereunder or otherwise pursuing its rights and remedies hereunder
against any Guarantor, the Collateral Agent, the Administrative Agent and any other Secured Party
may, but shall be under no obligation to, make a similar demand on or otherwise pursue such rights
and remedies as it may have against the Borrower, any other Guarantor or any other Person or
against any collateral security or guarantee for the Borrower Obligations guaranteed by such
Guarantor hereunder or any right of offset with respect thereto, and any failure by the Collateral
Agent, the Administrative Agent or any other Secured Party to make any such demand, to pursue such
other rights or remedies or to collect any payments from the Borrower, any other Guarantor or any
other Person or to realize upon any such collateral security or guarantee or to exercise any such
right of offset, or any release of the Borrower, any other Guarantor or any other Person or any
such collateral security, guarantee or right of offset, shall not relieve any Guarantor of any
obligation or liability hereunder, and shall not impair or affect the rights and remedies, whether
express, implied or available as a matter of law, of the Collateral Agent, the Administrative Agent
or any other Secured Party against any Guarantor. For the purposes hereof “demand” shall include
the commencement and continuance of any legal proceedings.




          2.6 Reinstatement. The guarantee of any Guarantor contained in this Section 2 shall
continue to be effective, or be reinstated, as the case may be, if at any time payment, or any part
thereof, of any of the Borrower Obligations guaranteed by such Guarantor hereunder is rescinded or
must otherwise be restored or returned by the Collateral Agent, the Administrative Agent or any
other Secured Party upon the insolvency, bankruptcy, dissolution, liquidation or reorganization of
the Borrower or any Guarantor, or upon or as a result of the appointment of a receiver, intervenor
or conservator of, or trustee or similar officer for, the Borrower or any Guarantor or any
substantial part of its property, or otherwise, all as though such payments had not been made.




          2.7 Payments. Each Guarantor hereby guarantees that payments hereunder will be paid
to the Administrative Agent without set-off or counterclaim, in Dollars (or in the case of any
amount required to be paid in any other currency pursuant to the requirements of the Credit
Agreement or other agreement relating to the respective Obligations, such other currency), at the
Administrative Agent’s office specified in Section 10.2 of the Credit Agreement or such other
address as may be designated in writing by the Administrative Agent to such Guarantor from time to
time in accordance with Section 10.2 of the Credit Agreement.







13









 








SECTION 3 GRANT OF SECURITY INTEREST




          3.1 Grant. Each Grantor hereby grants, subject to existing licenses to use the
Copyrights, Patents, Trademarks and Trade Secrets granted by such Grantor in the ordinary course of
business, to the Collateral Agent, for the benefit of the Secured Parties, a security interest in
all of the Collateral of such Grantor, as collateral security for the prompt and complete payment
and performance when due (whether at the stated maturity, by acceleration or otherwise) of the
Obligations of such Grantor, except as provided in Section 3.3. The term “Collateral”, as to any
Grantor, means the following property (wherever located) now owned or at any time hereafter
acquired by such Grantor or in which such Grantor now has or at any time in the future may acquire
any right, title or interest, except as provided in Section 3.3:





     (a) all Accounts;




     (b) all Chattel Paper;




     (c) all Commercial Tort Claims constituting Commercial Tort Actions described in
Schedule 7 (together with any Commercial Tort Actions subject to a further writing provided
in accordance with Section 5.2.12);




     (d) all Contracts;




     (e) all Deposit Accounts;




     (f) all Documents;




     (g) all Equipment (other than Vehicles);




     (h) all Fixtures;




     (i) all General Intangibles;




     (j) all Instruments;




     (k) all Intellectual Property;




     (l) all Inventory;




     (m) all Investment Property;




     (n) all Letter of Credit Rights;




     (o) all Money (including all cash and Cash Equivalents);




     (p) all books and Records pertaining to any of the foregoing;




     (q) the Collateral Proceeds Account; and



14









 






     (r) to the extent not otherwise included, all Proceeds and products of any and all of
the foregoing and all collateral security and guarantees given by any Person with respect to
any of the foregoing;


provided that, in the case of each Grantor, Collateral shall not include any Pledged
Collateral, or any property or assets specifically excluded from Pledged Collateral (including any
Capital Stock of any Foreign Subsidiary in excess of 65% of any series of such stock).




          3.2 Pledged Collateral. Each Grantor that is a Pledgor hereby grants to the
Collateral Agent, for the benefit of the Secured Parties, a security interest in all of the Pledged
Collateral of such Pledgor now owned or at any time hereafter acquired by such Pledgor, and any
Proceeds thereof, as collateral security for the prompt and complete performance when due (whether
at the stated maturity, by acceleration or otherwise) of the Obligations of such Pledgor, except as
provided in Section 3.3.




          3.3 Certain Exceptions. No security interest is or will be granted pursuant hereto in
any right, title or interest of any Grantor under or in (collectively, the “Excluded
Assets”):




          (a) any Instruments, Contracts, Chattel Paper, General Intangibles, Copyright Licenses, Patent
Licenses, Trademark Licenses, Trade Secret Licenses or other contracts or agreements with or issued
by Persons other than the Borrower, a Subsidiary of the Borrower or an Affiliate thereof,
(collectively, “Restrictive Agreements”) that would otherwise be included in the Security
Collateral (and such Restrictive Agreements shall not be deemed to constitute a part of the
Security Collateral) for so long as, and to the extent that, the granting of such a security
interest pursuant hereto would result in a breach, default or termination of such Restrictive
Agreements (in each case, except to the extent that, pursuant to the Code or other applicable law,
the granting of security interests therein can be made without resulting in a breach, default or
termination of such Restrictive Agreements);




          (b) any Equipment or other property that would otherwise be included in the Security
Collateral (and such Equipment or other property shall not be deemed to constitute a part of the
Security Collateral) if such Equipment or other property is subject to a Lien described in Section
7.3(n) or 7.3(y) of the Credit Agreement (but in each case only for so long as (i) such Liens are
in place and (ii) the granting of a Lien in such Equipment or other property would breach or
conflict with the agreement giving rise to such Liens);




          (c) any property that would otherwise be included in the Security Collateral (and such
property shall not be deemed to constitute a part of the Security Collateral) if such property (x)
has been sold or otherwise transferred in connection with (i) a Sale and Leaseback Transaction the
proceeds of which are applied as, if and to the extent required in accordance with Section 3.4(c)
of the Credit Agreement or (ii) an Exempt Sale and Leaseback Transaction or (y) constitutes
Proceeds or products of any property that has been sold or otherwise transferred pursuant to such
Sale and Leaseback Transaction or Exempt Sale and Leaseback Transaction (other than any payments
received by such Grantor in payment for the sale or transfer of such property in such Sale and
Leaseback Transaction or Exempt Sale and Leaseback Transaction) ;







15









 








          (d) Capital Stock which is specifically excluded from the definition of Pledged Stock by
virtue of the proviso contained in the parenthetical to such definition;




          (e) Foreign Intellectual Property;




          (f) any Money, cash, Cash Equivalents, checks, other negotiable instrument, funds and other
evidence of payment held in any Deposit Account of the Borrower or any of its Subsidiaries in the
nature of security deposit with respect to obligations for the benefit of the Borrower or any of
its Subsidiaries, which must be held for or returned to the applicable counterparty under
applicable law or pursuant to Contractual Obligations;




          (g) any deposit account or other account containing collateral securing the obligations of any
Grantor with respect to the Existing Letters of Credit (as defined in the ABL Credit Agreement as
in effect on the date hereof), and any cash, Cash Equivalents or investment property in such
accounts;




          (h) without limiting clause 3.3(a) above, those assets over which the granting of security
interests in such assets would be prohibited by contract permitted under the Credit Agreement and
set forth on Schedule 6, applicable law or regulation or the organizational documents of any
non-wholly owned Subsidiary (including permitted liens, leases and licenses), or to the extent that
such security interests would result in adverse tax or accounting consequences as reasonably
determined by the Borrower; or




          (i) those assets as to which the applicable Grantor and the Collateral Agent shall mutually
and reasonably determine that the costs of obtaining such a security interest are excessive in
relation to the value of the security interest to be afforded thereby.




          3.4 Intercreditor Relations. Notwithstanding anything herein to the contrary, it is
the understanding of the parties that the Liens granted pursuant to Section 3.1 herein shall (x)
with respect to all Security Collateral other than Term Loan Priority Collateral, prior to the
Discharge of Working Capital Obligations (as defined in the Intercreditor Agreement), be subject
and subordinate to the Liens granted to the ABL Collateral Agent for the benefit of the holders of
the ABL Obligations to secure the ABL Obligations pursuant to the ABL Credit Agreement, as and to
the extent provided in the Intercreditor Agreement, and (y) with respect to all Security
Collateral, prior to the applicable Discharge of Additional Obligations (as defined in the
Intercreditor Agreement), be pari passu and equal in priority to the Liens granted to any
Additional Agent for the benefit of the holders of the applicable Additional Obligations to secure
such Additional Obligations pursuant to the applicable Additional Collateral Documents, as and to
the extent provided in the Intercreditor Agreement. The Collateral Agent acknowledges and agrees
that the relative priority of such Liens granted to the Collateral Agent, the ABL Collateral Agent
and any Additional Agent may be determined solely pursuant to the Intercreditor Agreement, and not
by priority as a matter of law or otherwise. Notwithstanding anything herein to the contrary, the
Liens and security interest granted to the Collateral Agent pursuant to this Agreement and the
exercise of any right or remedy by the Collateral Agent hereunder are subject to the provisions of
the Intercreditor Agreement. In the event of any conflict between the terms of the Intercreditor
Agreement and this Agreement, the terms of the Intercreditor Agreement shall govern and control as
among the Collateral Agent, the ABL Collateral Agent and any






16









 







Additional Agent. Notwithstanding any other provision hereof, (x) for so long as any ABL
Obligations remain outstanding, any obligation hereunder to physically deliver to the Collateral
Agent any Security Collateral shall be satisfied by causing such Security Collateral to be
physically delivered to the ABL Collateral Agent to be held in accordance with the Intercreditor
Agreement and (y) for so long as any Additional Obligations remain outstanding, any obligation
hereunder to physically deliver to the Collateral Agent any Security Collateral shall be satisfied
by causing such Security Collateral to be physically delivered to any Additional Agent to be held
in accordance with the Intercreditor Agreement.




SECTION 4 REPRESENTATIONS AND WARRANTIES




          4.1 Representations and Warranties of Each Guarantor. To induce the Collateral Agent
and the Lenders to enter into the Credit Agreement and to induce the Lenders to make their
respective extensions of credit to the Borrower thereunder, each Guarantor hereby represents and
warrants to the Collateral Agent and each other Secured Party that the representations and
warranties set forth in Article IV of the Credit Agreement as they relate to such Guarantor or to
the Loan Documents to which such Guarantor is a party, each of which representations and warranties
is hereby incorporated herein by reference, are true and correct in all material respects, and the
Collateral Agent and each other Secured Party shall be entitled to rely on each of such
representations and warranties as if fully set forth herein; provided that each reference
in each such representation and warranty to the Borrower’s knowledge shall, for the purposes of
this Section 4.1, be deemed to be a reference to such Guarantor’s knowledge.




          4.2 Representations and Warranties of Each Grantor. To induce the Collateral Agent
and the Lenders to enter into the Credit Agreement and to induce the Lenders to make their
respective extensions of credit to the Borrower thereunder, each Grantor hereby represents and
warrants to the Collateral Agent and each other Secured Party that, in each case after giving
effect to the Transactions:




          4.2.1 Title; No Other Liens. Except for the security interests granted to the
Collateral Agent for the benefit of the Secured Parties pursuant to this Agreement and the other
Liens permitted to exist on such Grantor’s Collateral by the Credit Agreement (including, without
limitation, Section 7.3 thereof), such Grantor owns each item of such Grantor’s Collateral free and
clear of any and all Liens. No currently effective financing statement or other similar public
notice with respect to all or any part of such Grantor’s Collateral is on file or of record in any
public office in the United States of America, any state, territory or dependency thereof or the
District of Columbia, except such as have been filed in favor of the Collateral Agent for the
benefit of the Secured Parties pursuant to this Agreement or as are permitted by the Credit
Agreement (including, without limitation, Section 7.3 thereof) or any other Loan Document or for
which termination statements will be delivered on the Closing Date.




          4.2.2 Perfected First Priority Liens. (a) This Agreement is effective to create, as
collateral security for the Obligations of such Grantor, valid and enforceable Liens on such
Grantor’s Security Collateral in favor of the Collateral Agent for the benefit of the Secured
Parties, except as enforceability may be affected by bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws relating to or affecting creditor’s






17









 







rights generally, general equitable principles (whether considered in a proceeding in equity
or at law) and an implied covenant of good faith and fair dealing.




          (b) Except with regard to (i) Liens (if any) on Specified Assets and (ii) any rights in favor
of the United States government as required by law (if any), upon the completion of the Filings and
the delivery to and continuing possession by the Collateral Agent of all Instruments, Chattel Paper
and Documents a security interest in which is perfected by possession, and the obtaining and
maintenance of “control” (as described in the Code) by the Collateral Agent of all Deposit
Accounts, the Collateral Proceeds Account, Electronic Chattel Paper and Letter of Credit Rights a
security interest in which is perfected by “control” and in the case of Commercial Tort Actions
(other than such Commercial Tort Actions listed on Schedule 7 on the date of this Agreement) the
taking of the actions required by Section 5.2.12 herein, the Liens created pursuant to this
Agreement will constitute valid Liens on and (to the extent provided herein) perfected security
interests in such Grantor’s Security Collateral in favor of the Collateral Agent for the benefit of
the Secured Parties, and will be prior to all other Liens of all other Persons other than Permitted
Liens, and enforceable as such as against all other Persons other than Ordinary Course Transferees,
except to the extent that the recording of an assignment or other transfer of title to the
Collateral Agent or the recording of other applicable documents in the United States Patent and
Trademark Office or United States Copyright Office may be necessary for perfection or
enforceability, and except as enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement of creditors’ rights generally
and by general equitable principles (whether enforcement is sought by proceedings in equity or at
law) or by an implied covenant of good faith and fair dealing. As used in this Section 4.2.2(b),
the following terms shall have the following meanings:





     “Filings”: the filing or recording of (i) the Financing Statements as set
forth in Schedule 3, (ii) this Agreement or a notice thereof with respect to
Intellectual Property as set forth in Schedule 3, and (iii) any filings after the
Closing Date in any other jurisdiction as may be necessary under any Requirement of Law.




     “Financing Statements”: the financing statements delivered to the Collateral
Agent by such Grantor on the Closing Date for filing in the jurisdictions listed in
Schedule 4.




     “Ordinary Course Transferees”: (i) with respect to goods only, buyers in the
ordinary course of business and lessees in the ordinary course of business to the extent
provided in Section 9-320(a) and 9-321 of the Uniform Commercial Code as in effect from time
to time in the relevant jurisdiction, (ii) with respect to general intangibles only,
licensees in the ordinary course of business to the extent provided in Section 9-321 of the
Uniform Commercial Code as in effect from time to time in the relevant jurisdiction and
(iii) any other Person who is entitled to take free of the Lien pursuant to the Uniform
Commercial Code as in effect from time to time in the relevant jurisdiction.




     “Permitted Liens”: Liens permitted pursuant to the Credit Documents, including
without limitation those permitted to exist pursuant to Section 7.3 of the Credit Agreement.



18









 






     “Specified Assets”: the following property and assets of such Grantor:




     (1) Patents, Patent Licenses, Trademarks and Trademark Licenses to the extent
that (a) Liens thereon cannot be perfected by the filing of financing statements
under the Uniform Commercial Code or by the filing and acceptance thereof in the
United States Patent and Trademark Office or (b) such Patents, Patent Licenses,
Trademarks and Trademark Licenses are not, individually or in the aggregate,
material to the business of the Borrower and its Subsidiaries taken as a whole;




     (2) Copyrights and Copyright Licenses and Accounts or receivables arising
therefrom to the extent that the Uniform Commercial Code as in effect from time to
time in the relevant jurisdiction is not applicable to the creation or perfection of
Liens thereon or Liens thereon cannot be perfected by the filing and acceptance of
this Agreement or short form thereof in the United States Copyright Office;




     (3) Collateral for which the perfection of Liens thereon requires filings in or
other actions under the laws of jurisdictions outside of the United States of
America, any State, territory or dependency thereof or the District of Columbia;




     (4) Contracts, Accounts or receivables subject to the Assignment of Claims Act;




     (5) goods included in Collateral received by any Person from any Grantor for
“sale or return” within the meaning of Section 2-326 of the Uniform Commercial Code
of the applicable jurisdiction, to the extent of claims of creditors of such Person;




     (6) Fixtures; Money, cash and Cash Equivalents;




     (7) Proceeds of Accounts, receivables or Inventory which do not themselves
constitute Collateral or which have not been transferred to or deposited in the
Collateral Proceeds Account (if any) or to a Deposit Account of a Grantor subject
to the Collateral Agent’s control; and




     (8) uncertificated securities (to the extent a security interest is not
perfected by the filing of a financing statements).




     4.2.3 Jurisdiction of Organization. On the date hereof, such Grantor’s jurisdiction
of organization is specified on Schedule 4.



          4.2.4 Farm Products. None of such Grantor’s Collateral constitutes, or is the
Proceeds of, Farm Products.




          4.2.5 Accounts Receivable. The amounts represented by such Grantor to the
Administrative Agent or the other Secured Parties from time to time as owing by each account debtor
or by all account debtors in respect of such Grantor’s Accounts Receivable constituting






19









 







Security Collateral will at such time be the correct amount, in all material respects,
actually owing by such account debtor or debtors thereunder, except to the extent that appropriate
reserves therefor have been established on the books of such Grantor in accordance with GAAP.
Unless otherwise indicated in writing to the Administrative Agent, each Account Receivable of such
Grantor arises out of a bona fide sale and delivery of goods or rendition of services by such
Grantor. Such Grantor has not given any account debtor any deduction in respect of the amount due
under any such Account, except in the ordinary course of business or as such Grantor may otherwise
advise the Administrative Agent in writing.




          4.2.6 Patents, Copyrights and Trademarks. Schedule 5 lists all material
Trademarks, material Copyrights and material Patents, in each case, registered in the United States
Patent and Trademark Office or the United States Copyright Office, as applicable, and owned by such
Grantor in its own name as of the date hereof, and all material Trademark Licenses, all material
Copyright Licenses (other than licenses to commercially available software) and all material Patent
Licenses (including, without limitation, material Trademark Licenses for registered Trademarks,
material Copyright Licenses for registered Copyrights and material Patent Licenses for issued
Patents) owned by such Grantor in its own name as of the date hereof.




          4.3 Representations and Warranties of Each Pledgor. To induce the Collateral Agent,
the Administrative Agent and the Lenders to enter into the Credit Agreement and to induce the
Lenders to make their respective extensions of credit to the Borrower thereunder, each Pledgor
hereby represents and warrants to the Collateral Agent and each other Secured Party that:




          4.3.1 Except as provided in Section 3.3, the shares of Pledged Stock pledged by such Pledgor
hereunder constitute (i) in the case of shares of a Domestic Subsidiary, all the issued and
outstanding shares of all classes of the Capital Stock of such Domestic Subsidiary owned by such
Pledgor and (ii) in the case of any Pledged Stock constituting Capital Stock of any Foreign
Subsidiary, such percentage (not more than 65%) as is specified on Schedule 2 of all the issued and
outstanding shares of all classes of the Capital Stock of each such Foreign Subsidiary owned by
such Pledgor.




          4.3.2 All the shares of the Pledged Stock pledged by such Pledgor hereunder have been duly and
validly issued and are fully paid and nonassessable (or the equivalent, if any, under applicable
foreign law).




          4.3.3 Such Pledgor is the record and beneficial owner of, and has good title to, the Pledged
Securities pledged by it hereunder, free of any and all Liens or options in favor of, or claims of,
any other Person, except the security interest created by this Agreement and Liens arising by
operation of law or permitted by the Credit Agreement (or described in the definition of “Permitted
Lien” in the Credit Agreement).




          4.3.4 Except with respect to security interests in Pledged Securities (if any) constituting
Specified Assets, upon the delivery to the Collateral Agent of the certificates evidencing the
Pledged Securities held by such Pledgor together with executed undated stock powers or other
instruments of transfer, the security interest created in such Pledged Securities






20









 







constituting certificated securities by this Agreement, assuming the continuing possession of
such Pledged Securities by the Collateral Agent, will constitute a valid, perfected first priority
(subject, in terms of priority only, to the priority of the Liens of the ABL Collateral Agent and
any Additional Agent) security interest in such Pledged Securities to the extent provided in and
governed by the Code, enforceable in accordance with its terms against all creditors of such
Pledgor and any Persons purporting to purchase such Pledged Securities from such Pledgor, except as
enforceability may be affected by bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws relating to or affecting creditors’ rights generally, general
equitable principles (whether considered in a proceeding in equity or at law) and an implied
covenant of good faith and fair dealing.




          4.3.5 Except with respect to security interests in Pledged Securities (if any) constituting
Specified Assets, upon the obtaining and maintenance of “control” (as described in the Code) by the
Collateral Agent of all Pledged Securities that constitute uncertificated securities, the security
interest created by this Agreement in such Pledged Securities that constitute uncertificated
securities, will constitute a valid, perfected first priority (subject, in terms of priority only,
to the priority of the Liens of the ABL Collateral Agent or any Additional Agent) security interest
in such Pledged Securities constituting uncertificated securities, enforceable in accordance with
its terms against all creditors of such Pledgor and any persons purporting to purchase such Pledged
Securities from such Pledgor, to the extent provided in and governed by the Code, except as
enforceability may be affected by bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws relating to or affecting creditors’ rights generally, general
equitable principles (whether considered in a proceeding in equity or at law) and an implied
covenant of good faith and fair dealing.




SECTION 5 COVENANTS




          5.1 Covenants of Each Guarantor. Each Guarantor covenants and agrees with the
Collateral Agent and the other Secured Parties that, from and after the date of this Agreement
until the earlier to occur of (i) the date upon which the Loans, and all other Obligations then due
and owing, shall have been paid in full in cash or (ii) as to any Guarantor, the date upon which
all the Capital Stock of such Guarantor shall have been sold or otherwise disposed of (to a Person
other than the Borrower or a Subsidiary of the Borrower) in accordance with the terms of the Credit
Agreement, such Guarantor shall take, or shall refrain from taking, as the case may be, each action
that is necessary to be taken or not taken, as the case may be, so that no Default or Event of
Default is caused by the failure to take such action or to refrain from taking such action by such
Guarantor or any of its Subsidiaries.




          5.2 Covenants of Each Grantor. Each Grantor covenants and agrees with the Collateral
Agent and the other Secured Parties that, from and after the date of this Agreement until the
earlier to occur of (i) the date upon which the Loans, and all other Obligations then due and owing
shall have been paid in full in cash or (ii) as to any Grantor, the date upon which all the Capital
Stock of such Grantor shall have been sold or otherwise disposed of (to a Person other than the
Borrower or a Subsidiary of the Borrower) in accordance with the terms of the Credit Agreement:







21









 








          5.2.1 Delivery of Instruments, Chattel Paper and Securities. If any amount payable
under or in connection with any of such Grantor’s Collateral shall be or become evidenced by any
Instrument or Chattel Paper, such Grantor shall (except as provided in the following sentence) be
entitled to retain possession of all Collateral of such Grantor evidenced by any Instrument or
Chattel Paper, and shall hold all such Collateral in trust for the Collateral Agent, for the
benefit of the Secured Parties. In the event that an Event of Default shall have occurred and be
continuing, upon the request of the Collateral Agent, such Instrument or Chattel Paper shall be
promptly delivered to the Collateral Agent, the ABL Collateral Agent or any Additional Agent, as
applicable, in accordance with the Intercreditor Agreement, duly indorsed in a manner satisfactory
to the Collateral Agent, the ABL Collateral Agent or any Additional Agent, as applicable, in
accordance with the Intercreditor Agreement, to be held as Collateral pursuant to this Agreement.
Such Grantor shall not permit any other Person (other than the ABL Collateral Agent or any
Additional Agent, as applicable, in accordance with the Intercreditor Agreement) to possess any
such Collateral at any time other than in connection with any sale or other disposition of such
Collateral in a transaction permitted by the Credit Agreement.




          5.2.2 Maintenance of Insurance. Such Grantor will maintain with financially sound and
reputable insurance companies insurance on, or self insure, all property material to the business
of the Borrower and its Subsidiaries, taken as a whole, in at least such amounts and against at
least such risks (but including in any event public liability, product liability and business
interruption) as are consistent with the past practices of the Borrower and its Subsidiaries and
otherwise as are usually insured against in the same general area by companies engaged in the same
or a similar business; furnish to the Collateral Agent, upon written request, information in
reasonable detail as to the insurance carried; and ensure that the Administrative Agent, for the
benefit of the Secured Parties, shall be named as additional insureds with respect to liability
policies and the Collateral Agent shall be named loss payee with respect to the casualty insurance
maintained by such Grantor with respect to such Grantor’s Collateral.




          5.2.3 Payment of Obligations. Such Grantor will pay and discharge or otherwise
satisfy at or before maturity or before they become delinquent, as the case may be, all material
taxes, assessments and governmental charges or levies imposed upon such Grantor’s Collateral or in
respect of income or profits therefrom, as well as all material claims of any kind (including,
without limitation, material claims for labor, materials and supplies) against or with respect to
such Grantor’s Collateral (in each case in this Section 5.2.3 other than those relating to the
Mortgaged Properties), except where the amount or validity thereof is currently being contested in
good faith by appropriate proceedings and reserves in conformity with GAAP with respect thereto
have been provided on the books of such Grantor, and except to the extent that failure to do so, in
the aggregate, would not reasonably be expected to have a Material Adverse Effect.




          5.2.4 Maintenance of Perfected Security Interest; Further Documentation. (a) Such
Grantor shall maintain the security interest created by this Agreement in such Grantor’s Collateral
as a security interest having at least the perfection and priority described in Section 4.2.2 of
this Agreement and shall defend such security interest against the claims and demands of all
Persons whomsoever.







22









 








          (b) Such Grantor will furnish to the Collateral Agent from time to time statements and
schedules further identifying and describing such Grantor’s Collateral and such other reports in
connection with such Grantor’s Collateral as the Collateral Agent may reasonably request in
writing, all in reasonable detail.




          (c) At any time and from time to time, upon the written request of the Collateral Agent, and
at the sole expense of such Grantor, such Grantor will promptly and duly execute and deliver such
further instruments and documents and take such further actions as the Collateral Agent may
reasonably request for the purpose of obtaining or preserving the full benefits of this Agreement
and of the rights and powers herein granted by such Grantor, including, without limitation, the
filing of any financing or continuation statements under the Uniform Commercial Code (or other
similar laws) in effect in any United States jurisdiction with respect to the security interests
created hereby.




          5.2.5 Changes in Name, Jurisdiction of Organization, etc. Such Grantor will not,
except upon not less than 30 days’ prior written notice to the Collateral Agent, change its name or
jurisdiction of organization (whether by merger of otherwise); provided that, promptly
after receiving a written request therefor from the Collateral Agent, such Grantor shall deliver to
the Collateral Agent all additional financing statements and other documents reasonably requested
by the Collateral Agent to maintain the validity, perfection and priority of the security interests
as and to the extent provided for herein.




          5.2.6 Notices. Such Grantor will advise the Administrative Agent promptly, in
reasonable detail, of:




          (a) any Lien (other than security interests created hereby or Liens permitted under the Credit
Agreement or Liens described in the definition of “Permitted Lien” in the Credit Agreement) on any
of such Grantor’s Collateral which would materially adversely affect the ability of the Collateral
Agent to exercise any of its remedies hereunder; and




          (b) the occurrence of any other event which would reasonably be expected to have a material
adverse effect on the security interests created hereby.




          5.2.7 Pledged Stock. In the case of each Grantor that is an Issuer, such Issuer
agrees that (i) it will be bound by the terms of this Agreement relating to the Pledged Stock
issued by it and will comply with such terms insofar as such terms are applicable to it, (ii) it
will notify the Collateral Agent promptly in writing of the occurrence of any of the events
described in Section 5.3.1 with respect to the Pledged Stock issued by it and (iii) the terms of
Sections 6.3(c) and 6.7 shall apply to it, mutatis mutandis, with respect to all
actions that may be required of it pursuant to Section 6.3(c) or 6.7 with respect to the Pledged
Stock issued by it.




          5.2.8 Accounts Receivable. (a) With respect to Accounts Receivable constituting
Collateral, other than in the ordinary course of business or as permitted by the Loan Documents,
such Grantor will not (i) grant any extension of the time of payment of any of such Grantor’s
Accounts Receivable, (ii) compromise or settle any such Account Receivable for less than the full
amount thereof, (iii) release, wholly or partially, any Person liable for the payment of any
Account Receivable, (iv) allow any credit or discount whatsoever on any such Account






23









 







Receivable or (v) amend, supplement or modify any Account Receivable unless such extensions,
compromises, settlements, releases, credits or discounts would not reasonably be expected to
materially adversely affect the value of the Accounts Receivable constituting Collateral taken as a
whole.




          (b) Such Grantor will deliver to the Collateral Agent a copy of each material demand, notice
or document received by it that questions or calls into doubt the validity or enforceability of
more than 10% of the aggregate amount of the then outstanding Accounts Receivable.




          5.2.9 Maintenance of Records. Such Grantor will keep and maintain at its own cost and
expense reasonably satisfactory and complete records of its Collateral, including, without
limitation, a record of all payments received and all credits granted with respect to such
Collateral, and shall mark such records to evidence this Agreement and the Liens and the security
interests created hereby.




          5.2.10 Acquisition of Intellectual Property. Within 90 days after the end of each
calendar year, such Grantor will notify the Collateral Agent of any acquisition by such Grantor of
(i) any registration of any material Copyright, Patent or Trademark or (ii) any exclusive rights
under a material Copyright License, Patent License or Trademark License constituting Collateral,
and shall take such actions as may be reasonably requested by the Collateral Agent (but only to the
extent such actions are within such Grantor’s control) to perfect the security interest granted to
the Collateral Agent and the other Secured Parties therein, to the extent provided herein in
respect of any Copyright, Patent or Trademark constituting Collateral on the date hereof, by (x)
the execution and delivery of an amendment or supplement to this Agreement (or amendments to any
such agreement previously executed or delivered by such Grantor) and/or (y) the making of
appropriate filings (I) of financing statements under the Uniform Commercial Code of any applicable
jurisdiction and/or (II) in the United States Patent and Trademark Office, or with respect to
Copyrights and Copyright Licenses, another applicable office).




          5.2.11 Protection of Trade Secrets. Such Grantor shall take all steps which it deems
commercially reasonable to preserve and protect the secrecy of all material Trade Secrets of such
Grantor.




          5.2.12 Commercial Tort Actions. All Commercial Tort Actions of each Grantor in
existence on the date of this Agreement, known to such Grantor after reasonable inquiry, are
described in Schedule 7 hereto. If any Grantor shall at any time after the date of this Agreement
acquire a Commercial Tort Action in an amount of $2,000,000, such Grantor shall promptly notify the
Collateral Agent thereof in a writing signed by such Grantor and describing the details thereof and
shall grant to the Collateral Agent in such writing a security interest therein and in the proceeds
thereof, all upon the terms of this Agreement, with such writing to be in form and substance
reasonably satisfactory to the Collateral Agent.




          5.2.13 Assignment of Letter of Credit Rights. In the case of any Letter-of-Credit
Rights of any Grantor in any letter of credit exceeding $2,000,000 in value acquired following the
Closing Date (other than any Letter of Credit Right constituting ABL Priority Collateral), such
Grantor shall use its commercially reasonable efforts to promptly obtain the consent of the






24









 







issuer thereof and any nominated person thereon to the assignment of the proceeds of the
related letter of credit in accordance with Section 5-114(c) of the UCC, pursuant to an agreement
in form and substance reasonably satisfactory to the Administrative Agent, in each case subject to
the Intercreditor Agreement.




          5.2.14 Securities Accounts and Uncertificated Investment Property. (a) Prior to the
Discharge of Working Capital Obligations (as defined in the Intercreditor Agreement), if such
Grantor enters into any agreement with any third party (other than any Agent (as defined in the
Intercreditor Agreement)) as required by the ABL Credit Agreement that gives the ABL Collateral
Agent control for purposes of perfection over any Collateral consisting of a Deposit Account, a
Securities Account or uncertificated securities (within the meaning of the UCC), such Grantor shall
use commercially reasonable efforts to ensure that the Collateral Agent is also given control
(either directly or pursuant to intercreditor or agency arrangements with the ABL Collateral Agent
or any Additional Agent) over such Collateral for purposes of perfection, all in accordance with
and subject to the Intercreditor Agreement. At such Grantor’s option such control shall terminate
(and any agreement purporting to grant such control shall at such Grantor’s option provide for such
termination) at such time as the Borrower or any of its Subsidiaries obtains an Other Revolving
Facility (as defined below).




          (b) After the Discharge of Working Capital Obligations but only until an Other Revolving
Facility (as defined below) is obtained, if any ABL Deposit Account (as defined below) of such
Grantor shall have an average balance for any month in excess of $2,000,000, such Grantor shall,
unless such Grantor and the Collateral Agent otherwise agree, use commercially reasonable efforts
to put a Control Agreement (as defined below) into effect for such Deposit Account or Securities
Account reasonably promptly. If the aggregate average balance for any month of all ABL Deposit
Accounts shall exceed $10,000,000, the Grantors shall, unless the Grantors and the Collateral Agent
otherwise agree, use commercially reasonable efforts to reduce the aggregate average monthly
balances of all ABL Deposit Accounts to $10,000,000 or less reasonably promptly (which efforts may
include, without limitation, the transfer or redirection of funds or the entry into Control
Agreements, in each case at the Grantors’ option). An “ABL Deposit Account” means any Deposit
Account or Securities Account of a Grantor constituting Collateral (other than any Deposit Account
or Securities Account maintained with the Collateral Agent or any Additional Agent, as the case may
be) that (1) but for the Discharge of Working Capital Obligations, would have been required to be
subject to a control agreement in favor of the ABL Collateral Agent pursuant to the terms of the
ABL Credit Agreement as in effect immediately prior to the Discharge of Working Capital Obligations
and (2) over which the Collateral Agent does not exercise control for purposes of perfection in
accordance with the Intercreditor Agreement. A “Control Agreement” means an agreement that
purports to grant control over the applicable Deposit Account or Securities Account to the
Collateral Agent or any Additional Agent, as applicable. Any Control Agreement shall provide that
the Collateral Agent and any Additional Agent, as applicable, will not exercise control over such
Collateral unless an Event of Default has occurred and is continuing. Any Control Agreement shall
also contain terms reasonably satisfactory to the relevant Grantor providing for the termination of
such Control Agreement (and the Collateral Agent hereby agrees that all such Control Agreements,
and the obligations of the Grantors under this clause (b), shall terminate) at such time that the
Borrower or any of its Subsidiaries obtains an Other Revolving Facility (as defined below).






25









 








          (c) After the Discharge of Working Capital Obligations, if the Borrower or any of its
Subsidiaries obtains a revolving or working capital or other similar facility (whether or not
asset-based) the obligations under which are not (without limiting the definition thereof) ABL
Obligations (if designated by the Borrower as such, an “Other Revolving Facility”), prior
to the discharge of obligations thereunder, and if such Grantor enters into any agreement with any
third party (other than any lender under the Other Revolving Facility or agent thereof) as required
by the Other Revolving Facility that gives the lenders thereunder control for purposes of
perfection over any Collateral consisting of a Deposit Account or Securities Account that is not
otherwise subject to the control of the Collateral Agent or any Additional Agent, as applicable in
accordance with the Intercreditor Agreement, such Grantor shall use commercially reasonable efforts
to ensure that the Collateral Agent or an Additional Agent, as applicable and in accordance with
the Intercreditor Agreement, is also given control (either directly or pursuant to intercreditor or
agency arrangements with any Additional Agent, such lenders under the Other Revolving Facility or
any agent thereof) over such Deposit Account or Securities Account for purposes of perfection, on a
subordinated, second lien and/or junior priority basis if so requested by such Grantor.




               (d) As used in this Section 5.2.14, “control” has the meaning specified in the UCC, it being
understood and agreed that any agreement granting control to the Collateral Agent or any Additional
Agent, as applicable, (1) may at the applicable Grantor’s option provide that the Collateral Agent
or such Additional Agent, as applicable, may exercise or be entitled to control (i) only after the
Discharge of Working Capital Obligations or discharge of obligations under an Other Revolving
Facility, as the case may be, (ii) only with the consent of the ABL Collateral Agent or the secured
party or parties under an Other Revolving Facility (or an agent thereof) as the case may be, (iii)
only after the ABL Collateral Agent has delivered written notice to the applicable bank or
securities intermediary, as the case may be, that the Collateral Agent may exercise or be entitled
to control, and such bank or securities intermediary, as the case may be, has acknowledged receipt
of such notice or (iv) subject to similar limitations and (2) shall otherwise, unless the Grantor
otherwise agrees (and except for provisions establishing lien priorities), be on terms and
conditions substantially similar to, or no more favorable to the Collateral Agent or Additional
Agent, as the case may be, than, the applicable control agreement in favor or the ABL Collateral
Agent or the secured party or parties under an Other Revolving Facility.



               (e) The Collateral Agent hereby agrees that it will not exercise control over, nor deliver any
notice of control or entitlement order or instruction with respect to, any Deposit Account,
Securities Account or uncertificated securities unless an Event of Default has occurred and is
continuing.



          5.2.16 Protection of Trademarks. Except as permitted by the Loan Documents or the
ABL Facility Documents, such Grantor agrees to take all steps which it deems commercially
reasonable to maintain the Trademark registrations and pursue the Trademark applications now or
hereafter listed on Schedule 5, except where such Grantor has reasonably determined that any of the
foregoing is not material to the business of such Grantor.







26









 








          5.2.17 Quality Control. Subject to the Loan Documents and the ABL Facility
Documents, such Grantor shall take all steps which it deems commercially reasonable to exercise
quality control over any Inventory constituting Term Loan Priority Collateral bearing any of the
Trademarks, except where the failure to do so would not reasonably be expected to have,
individually or in the aggregate, a Material Adverse Effect.




          5.2.18 Abandonment. Except as permitted by the Loan Documents or the ABL Facility
Documents, such Grantor shall not abandon any Trademark registration, issued Patent or Copyright
registration, or any pending Trademark, Patent or Copyright application, in each case now or
hereafter listed on Schedule 5, without the consent of the Collateral Agent.




          5.3 Covenants of Each Pledgor. Each Pledgor covenants and agrees with the Collateral
Agent and the other Secured Parties that, from and after the date of this Agreement until the
earlier to occur of (i) the Loans, and all other Obligations then due and owing shall have been
paid in full in cash or (ii) as to any Pledgor, all the Capital Stock of such Pledgor shall have
been sold or otherwise disposed of (to a Person other than the Borrower or a Subsidiary of the
Borrower) as permitted under the terms of the Credit Agreement:




          5.3.1 Additional Shares. If such Pledgor shall, as a result of its ownership of its
Pledged Stock, become entitled to receive or shall receive any stock certificate (including,
without limitation, any stock certificate representing a stock dividend or a distribution in
connection with any reclassification, increase or reduction of capital or any certificate issued in
connection with any reorganization), stock option or similar rights in respect of the Capital Stock
of any Issuer, whether in addition to, in substitution of, as a conversion of, or in exchange for,
any shares of the Pledged Stock, or otherwise in respect thereof, such Pledgor shall accept the
same as the agent of the Collateral Agent and the other Secured Parties, hold the same in trust for
the Collateral Agent and the other Secured Parties and deliver the same forthwith to the Collateral
Agent (who will hold the same on behalf of the Secured Parties), the ABL Collateral Agent or any
Additional Agent, as applicable, in accordance with the Intercreditor Agreement, in the exact form
received, duly indorsed by such Pledgor to the Collateral Agent, the ABL Collateral Agent or any
Additional Agent, as applicable, in accordance with the Intercreditor Agreement, if required,
together with an undated stock power covering such certificate duly executed in blank by such
Grantor, to be held by the Collateral Agent, the ABL Collateral Agent or any Additional Agent, as
applicable, in accordance with the Intercreditor Agreement, subject to the terms hereof, as
additional collateral security for the Obligations (subject to Section 3.3 and provided
that in no event shall there be pledged, nor shall any Pledgor be required to pledge, more than 65%
of any series of the outstanding Capital Stock of any Foreign Subsidiary pursuant to this
Agreement). Any sums paid upon or in respect of the Pledged Stock upon the liquidation or
dissolution of any Issuer (except any liquidation or dissolution of any Subsidiary of the Borrower
in accordance with the Credit Agreement) shall be paid over to the Collateral Agent, the ABL
Collateral Agent or any Additional Agent as applicable, in accordance with the Intercreditor
Agreement to be held hereunder by the Collateral Agent, the ABL Collateral Agent or any Additional
Agent, as applicable, in accordance with the Intercreditor Agreement subject to the terms hereof as
additional collateral security for the Obligations, and in case any distribution of capital shall
be made on or in respect of the Pledged Stock or any property shall be distributed upon or with
respect to the Pledged Stock pursuant to the recapitalization or reclassification of the capital of
any Issuer or pursuant to the reorganization thereof, the property






27









 







so distributed shall, unless otherwise subject to a perfected security interest in favor of
the Collateral Agent, be delivered to the Collateral Agent, the ABL Collateral Agent or any
Additional Agent as applicable, in accordance with the Intercreditor Agreement, to be held
hereunder by the Collateral Agent, the ABL Collateral Agent or any Additional Agent, as applicable,
in accordance with the Intercreditor Agreement subject to the terms hereof as additional collateral
security for the Obligations, in each case except as otherwise provided by the Intercreditor
Agreement. If any sums of money or property so paid or distributed in respect of the Pledged Stock
shall be received by such Pledgor, such Pledgor shall, until such money or property is paid or
delivered to the Collateral Agent, the ABL Collateral Agent or any Additional Agent, as applicable,
in accordance with the Intercreditor Agreement, hold such money or property in trust for the
Secured Parties, segregated from other funds of such Pledgor, as additional collateral security for
the Obligations.




          5.3.2 Maintenance of Pledged Stock. Without the prior written consent of the
Collateral Agent, such Pledgor will not (except as permitted by the Credit Agreement) (i) vote to
enable, or take any other action to permit, any Issuer to issue any stock or other equity
securities of any nature or to issue any other securities convertible into, or granting the right
to purchase or exchange for, any stock or other equity securities of any nature of any Issuer, (ii)
sell, assign, transfer, exchange, or otherwise dispose of, or grant any option with respect to, the
Pledged Securities or Proceeds thereof, (iii) create, incur or permit to exist any Lien or option
in favor of, or any material adverse claim of any Person with respect to, any of the Pledged
Securities or Proceeds thereof, or any interest therein, except for the security interests created
by this Agreement or Liens arising by operation of law or (iv) enter into any agreement or
undertaking restricting the right or ability of such Pledgor or the Collateral Agent to sell,
assign or transfer any of the Pledged Securities or Proceeds thereof. Each interest in any limited
liability company formed by a Grantor after the Closing Date that is a Wholly Owned Subsidiary of
the Grantor pledged hereunder shall be represented by a certificate, shall be a “security” within
the meaning of the Article 8 of the Code and shall be governed by Article 8 of the Code. The
charter documents of each such limited liability company shall include an express provision
providing that each interest in such entity “is a security governed by Article 8 of the Uniform
Commercial Code in effect in the State of New York on the date hereof”.




          5.3.3 Pledged Notes. Such Pledgor shall, on the date of this Agreement (or on such
later date upon which it becomes a party hereto pursuant to Section 9.15), deliver to the
Collateral Agent, the ABL Collateral Agent or any Additional Agent, as applicable, in accordance
with the Intercreditor Agreement, all Pledged Notes then held by such Pledgor (excluding any
Pledged Note the principal amount of which does not exceed $2,000,000), endorsed in blank or, at
the request of the Collateral Agent, endorsed to the Collateral Agent. Furthermore, within ten
Business Days after any Pledgor obtains a Pledged Note with a principal amount in excess of
$2,000,000, such Pledgor shall cause such Pledged Note to be delivered to the Collateral Agent, or
the ABL Collateral Agent or any Additional Agent, as applicable, in accordance with the
Intercreditor Agreement, endorsed in blank or, at the request of the Collateral Agent, endorsed to
the Collateral Agent, or the ABL Collateral Agent or any Additional Agent, as applicable, in
accordance with the Intercreditor Agreement.







28









 








          5.3.4 Maintenance of Security Interest. Such Pledgor shall maintain the security
interest created by this Agreement in such Pledgor’s Pledged Collateral as a security interest
having at least the perfection and priority described in Section 4.3.4 or 4.3.5 of this Agreement,
as applicable, and shall defend such security interest against the claims and demands of all
Persons whomsoever. At any time and from time to time, upon the written request of the Collateral
Agent and at the sole expense of such Pledgor, such Pledgor will promptly and duly execute and
deliver such further instruments and documents and take such further actions as the Collateral
Agent may reasonably request for the purpose of obtaining or preserving the full benefits of this
Agreement and of the rights and powers herein granted by such Pledgor.




SECTION 6 REMEDIAL PROVISIONS




          6.1 Certain Matters Relating to Accounts. (a) At any time and from time to time
after the occurrence and during the continuance of an Event of Default, the Collateral Agent shall
have the right to make test verifications of the Accounts Receivable constituting Collateral in any
reasonable manner and through any reasonable medium that it reasonably considers advisable, and the
relevant Grantor shall furnish all such assistance and information as the Collateral Agent may
reasonably require in connection with such test verifications. At any time and from time to time
after the occurrence and during the continuance of an Event of Default, upon the Collateral Agent’s
reasonable request and at the expense of the relevant Grantor, such Grantor shall cause independent
public accountants or others reasonably satisfactory to the Collateral Agent to furnish to the
Collateral Agent reports showing reconciliations, aging and test verifications of, and trial
balances for, the Accounts Receivable constituting Collateral.




          (b) The Collateral Agent hereby authorizes each Grantor to collect such Grantor’s Accounts
Receivable constituting Collateral and to the extent permitted by applicable law the Collateral
Agent may curtail or terminate said authority at any time after the occurrence and during the
continuance of an Event of Default specified in Section 8.1(f) of the Credit Agreement with respect
to any Grantor. If required by the Collateral Agent at any time after the occurrence and during
the continuance of an Event of Default specified in Section 8.1(f) of the Credit Agreement with
respect to any Grantor, to the extent permitted by applicable law, any Proceeds constituting
payments or other cash proceeds of Accounts Receivables constituting Collateral, when collected by
such Grantor, (i) shall be forthwith (and, in any event, within two Business Days of receipt by
such Grantor) deposited in, or otherwise transferred by such Grantor to, the Collateral Proceeds
Account, subject to withdrawal by the Collateral Agent for the account of the Secured Parties only
as provided in Section 6.5, and (ii) until so turned over, shall be held by such Grantor in trust
for the Collateral Agent and the other Secured Parties, segregated from other funds of such
Grantor. All Proceeds constituting collections or other cash proceeds of Accounts Receivable
constituting Collateral while held by the Collateral Account Bank (or by any Grantor in trust for
the benefit of the Collateral Agent and the other Secured Parties) shall continue to be collateral
security for all of the Obligations and shall not constitute payment thereof until applied as
hereinafter provided. At any time when an Event of Default specified in Section 8.1(f) of the
Credit Agreement has occurred and is continuing with respect to any Grantor, to the extent
permitted by applicable law, at the Collateral Agent’s election, each of the Collateral Agent and
the Administrative Agent may apply all or any part of the funds on deposit in the Collateral
Proceeds Account established by the relevant Grantor to the payment of






29









 







the Obligations of such Grantor then due and owing, such application to be made as set forth
in Section 6.5 hereof. So long as no Event of Default has occurred and is continuing, the funds on
deposit in the Collateral Proceeds Account shall be remitted as provided in Section 6.1(d) hereof.




          (c) At any time and from time to time after the occurrence and during the continuance of an
Event of Default specified in Section 8.1(f) of the Credit Agreement with respect to any Grantor,
to the extent permitted by applicable law, at the Collateral Agent’s request, each Grantor shall
deliver to the Collateral Agent copies or, if required by the Collateral Agent for the enforcement
thereof or foreclosure thereon, originals of all documents held by such Grantor evidencing, and
relating to, the agreements and transactions which gave rise to such Grantor’s Accounts Receivable
constituting Collateral, including, without limitation, all statements relating to such Grantor’s
Accounts Receivable constituting Collateral and all orders, invoices and shipping receipts.




          (d) So long as no Event of Default has occurred and is continuing, the Collateral Agent shall
instruct the Collateral Account Bank to promptly remit any funds on deposit in each Grantor’s
Collateral Proceeds Account to such Grantor’s General Fund Account or any other account designated
by such Grantor. In the event that an Event of Default has occurred and is continuing, the
Collateral Agent and the Grantors agree that the Collateral Agent, at its option, may require that
each Collateral Proceeds Account and the General Fund Account of each Grantor be established at the
Collateral Agent. Each Grantor shall have the right, at any time and from time to time, to
withdraw such of its own funds from its own General Fund Account, and to maintain such balances in
its General Fund Account, as it shall deem to be necessary or desirable.




          6.2 Communications with Obligors; Grantors Remain Liable. (a) The Collateral Agent in
its own name or in the name of others, may at any time and from time to time after the occurrence
and during the continuance of an Event of Default specified in Section 8.1(f) of the Credit
Agreement with respect to any Grantor, to the extent permitted by applicable law, communicate with
obligors under the Accounts Receivable constituting Collateral and parties to the Contracts (in
each case, to the extent constituting Collateral) to verify with them to the Collateral Agent’s
satisfaction the existence, amount and terms of any Accounts Receivable or Contracts.




          (b) Upon the request of the Collateral Agent at any time after the occurrence and during the
continuance of an Event of Default specified in Section 8.1(f) of the Credit Agreement with respect
to any Grantor, to the extent permitted by applicable law, each Grantor shall notify obligors on
such Grantor’s Accounts Receivable and parties to such Grantor’s Contracts (in each case, to the
extent constituting Collateral) that such Accounts Receivable and such Contracts have been assigned
to the Collateral Agent, for the benefit of the Secured Parties, and that payments in respect
thereof shall be made directly to the Collateral Agent.




          (c) Anything herein to the contrary notwithstanding, each Grantor shall remain liable under
each of such Grantor’s Accounts Receivable to observe and perform all the conditions and
obligations to be observed and performed by it thereunder, all in accordance with the terms of any
agreement giving rise thereto. None of the Collateral Agent, the Administrative Agent or any other
Secured Party shall have any obligation or liability under any Account






30









 







Receivable (or any agreement giving rise thereto) by reason of or arising out of this
Agreement or the receipt by the Collateral Agent or any other Secured Party of any payment relating
thereto, nor shall the Collateral Agent or any other Secured Party be obligated in any manner to
perform any of the obligations of any Grantor under or pursuant to any Account Receivable (or any
agreement giving rise thereto) to make any payment, to make any inquiry as to the nature or the
sufficiency of any payment received by it or as to the sufficiency of any performance by any party
thereunder, to present or file any claim, to take any action to enforce any performance or to
collect the payment of any amounts that may have been assigned to it or to which it may be entitled
at any time or times.




          6.3 Pledged Stock. (a) Unless an Event of Default shall have occurred and be
continuing and the Collateral Agent shall have given notice to the relevant Pledgor of the
Collateral Agent’s intent to exercise its corresponding rights pursuant to Section 6.3(b), each
Pledgor shall be permitted to receive all cash dividends and distributions paid in respect of the
Pledged Stock (subject to the last two sentences of Section 5.3.1 of this Agreement) and all
payments made in respect of the Pledged Notes, to the extent permitted in the Credit Agreement, and
to exercise all voting and corporate rights with respect to the Pledged Stock; provided,
however, that no vote shall be cast or corporate right exercised or such other action taken
(other than in connection with a transaction expressly permitted by the Credit Agreement) which, in
the Collateral Agent’s reasonable judgment, would materially impair the Pledged Stock or the
related rights or remedies of the Secured Parties or which would be inconsistent with or result in
any violation of any provision of the Credit Agreement, this Agreement or any other Loan Document.




          (b) If an Event of Default shall occur and be continuing and the Collateral Agent shall give
notice of its intent to exercise such rights to the relevant Pledgor or Pledgors, (i) the
Collateral Agent, the ABL Collateral Agent or any Additional Agent, as applicable, in accordance
with the Intercreditor Agreement, shall have the right to receive any and all cash dividends,
payments or other Proceeds paid in respect of the Pledged Stock and make application thereof to the
Obligations of the relevant Pledgor in such order as is provided in Section 6.5, and (ii) any or
all of the Pledged Stock shall be registered in the name of the Collateral Agent or its nominee or
the ABL Collateral Agent or any Additional Agent or the respective nominee thereof, and the
Collateral Agent or its nominee or the ABL Collateral Agent or any Additional Agent or the
respective nominee thereof, as applicable, in accordance with the Intercreditor Agreement, may
thereafter exercise (x) all voting, corporate and other rights pertaining to such Pledged Stock at
any meeting of shareholders of the relevant Issuer or Issuers or otherwise and (y) any and all
rights of conversion, exchange, subscription and any other rights, privileges or options pertaining
to such Pledged Stock as if it were the absolute owner thereof (including, without limitation, the
right to exchange at its discretion any and all of the Pledged Stock upon the merger,
consolidation, reorganization, recapitalization or other fundamental change in the corporate
structure of any Issuer, or upon the exercise by the relevant Pledgor or the Collateral Agent, the
ABL Collateral Agent or any Additional Agent, as applicable, in accordance with the Intercreditor
Agreement, of any right, privilege or option pertaining to such Pledged Stock, and in connection
therewith, the right to deposit and deliver any and all of the Pledged Stock with any committee,
depository, transfer agent, registrar or other designated agency upon such terms and conditions as
the Collateral Agent, the ABL Collateral Agent or any Additional Agent, as applicable, in
accordance with the Intercreditor Agreement, may reasonably determine), all






31









 







without liability (other than for its gross negligence or willful misconduct) except to
account for property actually received by it, but the Collateral Agent, the ABL Collateral Agent or
any Additional Agent, as applicable, in accordance with the Intercreditor Agreement, shall have no
duty, to any Pledgor to exercise any such right, privilege or option and shall not be responsible
for any failure to do so or delay in so doing, provided that the Collateral Agent, the ABL
Collateral Agent or any Additional Agent, as applicable, in accordance with the Intercreditor
Agreement, shall not exercise any voting or other consensual rights pertaining to the Pledged Stock
in any way that would constitute an exercise of the remedies described in Section 6.6 other than in
accordance with Section 6.6.




          (c) Each Pledgor hereby authorizes and instructs each Issuer or maker of any Pledged
Securities pledged by such Pledgor hereunder to (i) comply with any instruction received by it from
the Collateral Agent in writing that (x) states that an Event of Default has occurred and is
continuing and (y) is otherwise in accordance with the terms of this Agreement, without any other
or further instructions from such Pledgor, and each Pledgor agrees that each Issuer or maker shall
be fully protected in so complying, and (ii) unless otherwise expressly permitted hereby, pay any
dividends or other payments with respect to the Pledged Securities directly to the Collateral
Agent.




          (d) Each party acknowledges that the shares of the entities listed on the Schedule 2 attached
hereto are being transferred to and deposited with the Collateral Agent as collateral security for
the loans made by lenders pursuant to the Credit Agreement and the ABL Credit Agreement and that
this Section 6.3(d) is intended to be the certificate of exemption from New York stock transfer
taxes for the purposes of complying with Section 270.5(b) of the Tax Law of the State of New York.




          6.4 Proceeds to be Turned Over to the Collateral Agent. In addition to the rights of
the Collateral Agent and the other Secured Parties specified in Section 6.1 with respect to
payments of Accounts Receivable constituting Collateral, if an Event of Default shall occur and be
continuing, and the Collateral Agent shall have instructed any Grantor to do so, all Proceeds of
Security Collateral received by such Grantor consisting of cash, checks and other Cash Equivalent
items shall be held by such Grantor in trust for the Collateral Agent and the other Secured Parties
hereto, or the ABL Collateral Agent and the other Secured Parties (as defined in the ABL Credit
Agreement) or any Additional Agent and the other applicable Additional Secured Parties (as defined
in the Intercreditor Agreement), as applicable, in accordance with the Intercreditor Agreement,
segregated from other funds of such Grantor, and shall, forthwith upon receipt by such Grantor, be
turned over to the Collateral Agent, the ABL Collateral Agent or any Additional Agent, as
applicable, in accordance with the Intercreditor Agreement (or their respective agents appointed
for purposes of perfection), in the exact form received by such Grantor (duly indorsed by such
Grantor to the Collateral Agent, the ABL Collateral Agent or any Additional Agent, as applicable,
in accordance with the Intercreditor Agreement, if required). All Proceeds of Security Collateral
received by the Collateral Agent hereunder shall be held by the Collateral Agent in the relevant
Collateral Proceeds Account maintained under its sole dominion and control. All Proceeds of
Security Collateral while held by the Collateral Agent in such Collateral Proceeds Account (or by
the relevant Grantor in trust for the Collateral Agent and the other Secured Parties) shall
continue to be held as collateral security for all the






32









 







Obligations of such Grantor and shall not constitute payment thereof until applied as provided
in Section 6.5.




          6.5 Application of Proceeds. It is agreed that if an Event of Default shall occur and
be continuing, subject to the Intercreditor Agreement, any and all Proceeds of the relevant
Grantor’s Security Collateral (as defined in the Credit Agreement) received by the Collateral Agent
(whether from the relevant Grantor or otherwise) shall be held by the Collateral Agent for the
benefit of the Secured Parties as collateral security for the Obligations of the relevant Grantor
(whether matured or unmatured), and/or then or at any time thereafter may, in the sole discretion
of the Collateral Agent, be applied by the Collateral Agent in accordance with the Intercreditor
Agreement, and thereafter against the Obligations of the relevant Grantor then due and owing as
follows (without duplication of any amounts applied in accordance with the Intercreditor
Agreement):





     FIRST, to the payment of all Obligations consisting of all reasonable out-of-pocket
costs and expenses (including, without limitation, reasonable attorneys’ fees) of the
Administrative Agent and the Collateral Agent in connection with enforcing the rights of the
Lenders under the Loan Documents;




     SECOND, to the payment of all Obligations consisting of any fees owed to the
Administrative Agent and the Collateral Agent;




     THIRD, to the payment of all Obligations consisting of all reasonable out-of-pocket
costs and expenses (including, without limitation, reasonable attorneys’ fees of counsel to
the Administrative Agent and the Lenders) of each Lender in connection with enforcing its
rights under the Loan Documents;




     FOURTH, to the payment of all Obligations consisting of accrued fees (other than any
referred to in clause “SECOND” above) and interest, including, with respect to Obligations
owed to any Non-Lender Secured Party, any fees, premiums and scheduled periodic payments
then due and owing to such Non-Lender Secured Party under any Secured Bank Product
Agreement;




     FIFTH, to the payment of all Obligations consisting of outstanding principal,
including, with respect to Obligations owed to any Non-Lender Secured Party, any breakage,
termination or other payments then due and owing to such Non-Lender Secured Party under any
Secured Bank Product Agreement;




     SIXTH, to the payment of all other Obligations then due and owing and not paid pursuant
to the Intercreditor Agreement or clauses “FIRST” through “FIFTH” above; and




     SEVENTH, thereafter in accordance with the Intercreditor Agreement to the extent
applicable, and then to the relevant Grantor or its successors or assigns, or to whoever may
be lawfully entitled to receive the same.



          6.6 Code and Other Remedies. If an Event of Default shall occur and be continuing,
the Collateral Agent, on behalf of the Secured Parties, may exercise, in addition to all other
rights and remedies granted to them in this Agreement and in any other instrument or






33









 







agreement securing, evidencing or relating to the Obligations to the extent permitted by
applicable law, all rights and remedies of a secured party under the Code or any other applicable
law. Without limiting the generality of the foregoing, to the extent permitted by applicable law,
the Collateral Agent, without demand of performance or other demand, presentment, protest,
advertisement or notice of any kind (except any notice required by law referred to below) to or
upon any Grantor or any other Person (all and each of which demands, defenses, advertisements and
notices are hereby waived), may in such circumstances, forthwith collect, receive, appropriate and
realize upon the Security Collateral, or any part thereof, and/or may forthwith, subject to any
existing reserved rights or licenses, sell, lease, assign, give option or options to purchase, or
otherwise dispose of and deliver the Security Collateral or any part thereof (or contract to do any
of the foregoing), in one or more parcels at public or private sale or sales, at any exchange,
broker’s board or office of the Collateral Agent or any other Secured Party or elsewhere upon such
terms and conditions as it may deem advisable and at such prices as it may deem best, for cash or
on credit or for future delivery without assumption of any credit risk. The Collateral Agent or
any other Secured Party shall have the right, to the extent permitted by law, upon any such sale or
sales, to purchase the whole or any part of the Security Collateral so sold, free of any right or
equity of redemption in such Grantor, which right or equity is hereby waived and released. Each
Grantor further agrees, at the Collateral Agent’s request, to assemble the Security Collateral and
make it available to the Collateral Agent at places which the Collateral Agent shall reasonably
select, whether at such Grantor’s premises or elsewhere. The Collateral Agent shall apply the net
proceeds of any action taken by it pursuant to this Section 6.6, after deducting all reasonable
costs and expenses of every kind incurred in connection therewith or incidental to the care or
safekeeping of any of the Security Collateral or in any way relating to the Security Collateral or
the rights of the Collateral Agent and the other Secured Parties hereunder, including, without
limitation, reasonable attorneys’ fees and disbursements, to the payment in whole or in part of the
Obligations of the relevant Grantor then due and owing, in the order of priority specified in
Section 6.5 above, and only after such application and after the payment by the Collateral Agent of
any other amount required by any provision of law, including, without limitation, Section
9-615(a)(3) of the Code, need the Collateral Agent account for the surplus, if any, to such
Grantor. To the extent permitted by applicable law, (i) such Grantor waives all claims, damages
and demands it may acquire against the Collateral Agent or any other Secured Party arising out of
the repossession, retention or sale of the Security Collateral, other than any such claims, damages
and demands that may arise from the gross negligence or willful misconduct of any of the Collateral
Agent or such other Secured Party, and (ii) if any notice of a proposed sale or other disposition
of Security Collateral shall be required by law, such notice shall be deemed reasonable and proper
if given at least 10 days before such sale or other disposition.




          6.7 Registration Rights. (a) If the Collateral Agent shall determine to exercise its
right to sell any or all of the Pledged Stock pursuant to Section 6.6, and if in the reasonable
opinion of the Collateral Agent it is necessary or reasonably advisable to have the Pledged Stock,
or that portion thereof to be sold, registered under the provisions of the Securities Act, the
relevant Pledgor will use its reasonable best efforts to cause the Issuer thereof to (i) execute
and deliver, and use its best efforts to cause the directors and officers of such Issuer to execute
and deliver, all such instruments and documents, and do or cause to be done all such other acts as
may be, in the reasonable opinion of the Collateral Agent, necessary or advisable to register such
Pledged Stock, or that portion thereof to be sold, under the provisions of the Securities Act, (ii)






34









 







use its reasonable best efforts to cause the registration statement relating thereto to become
effective and to remain effective for a period of not more than one year from the date of the first
public offering of such Pledged Stock, or that portion thereof to be sold, and (iii) make all
amendments thereto and/or to the related prospectus which, in the reasonable opinion of the
Collateral Agent, are necessary or advisable, all in conformity with the requirements of the
Securities Act and the rules and regulations of the Securities and Exchange Commission applicable
thereto. Such Pledgor agrees to use its reasonable best efforts to cause such Issuer to comply
with the provisions of the securities or “Blue Sky” laws of any and all states and the District of
Columbia that the Collateral Agent shall reasonably designate and to make available to its security
holders, as soon as practicable, an earnings statement (which need not be audited) that will
satisfy the provisions of Section 11(a) of the Securities Act.




          (b) Such Pledgor recognizes that the Collateral Agent may be unable to effect a public sale of
any or all such Pledged Stock, by reason of certain prohibitions contained in the Securities Act
and applicable state securities laws or otherwise, and may be compelled to resort to one or more
private sales thereof to a restricted group of purchasers which will be obliged to agree, among
other things, to acquire such securities for their own account for investment and not with a view
to the distribution or resale thereof. Such Pledgor acknowledges and agrees that any such private
sale may result in prices and other terms less favorable than if such sale were a public sale and,
notwithstanding such circumstances, to the extent permitted by applicable law, agrees that any such
private sale shall be deemed to have been made in a commercially reasonable manner. The Collateral
Agent shall not be under any obligation to delay a sale of any of the Pledged Stock for the period
of time necessary to permit the Issuer thereof to register such securities for public sale under
the Securities Act, or under applicable state securities laws, even if such Issuer would agree to
do so.




          (c) Such Pledgor agrees to use its reasonable best efforts to do or cause to be done all such
other acts as may be necessary to make such sale or sales of all or any portion of such Pledged
Stock pursuant to this Section 6.7 valid and binding and in compliance with any and all other
applicable Requirements of Law. Such Pledgor further agrees that a breach of any of the covenants
contained in this Section 6.7 will cause irreparable injury to the Collateral Agent and the
Lenders, that the Collateral Agent and the Lenders have no adequate remedy at law in respect of
such breach and, as a consequence, that each and every covenant contained in this Section 6.7 shall
be specifically enforceable against such Pledgor, and to the extent permitted by applicable law,
such Pledgor hereby waives and agrees not to assert any defenses against an action for specific
performance of such covenants except for a defense that no Event of Default has occurred or is
continuing under the Credit Agreement.




          6.8 Waiver; Deficiency. Each Grantor shall remain liable for any deficiency if the
proceeds of any sale or other disposition of the Security Collateral are insufficient to pay in
full, the Loans and, to the extent then due and owing, all other Obligations of such Grantor and
the reasonable fees and disbursements of any attorneys employed by the Collateral Agent or any
other Secured Party to collect such deficiency.





35












 





SECTION 7 THE COLLATERAL AGENT




          7.1 Collateral Agent’s Appointment as Attorney-in-Fact, etc.  (a) Each Grantor hereby
irrevocably constitutes and appoints the Collateral Agent and any authorized officer or agent
thereof, with full power of substitution, as its true and lawful attorney-in-fact with full
irrevocable power and authority in the place and stead of such Grantor and in the name of such
Grantor or in its own name, for the purpose of carrying out the terms of this Agreement, to take
any and all appropriate action and to execute any and all documents and instruments that may be
reasonably necessary or desirable to accomplish the purposes of this Agreement to the extent
permitted by applicable law, provided that the Collateral Agent agrees not to exercise such
power except upon the occurrence and during the continuance of any Event of Default. Without
limiting the generality of the foregoing, at any time when an Event of Default has occurred and is
continuing (in each case to the extent permitted by applicable law), (x) each Pledgor hereby gives
the Collateral Agent the power and right, on behalf of such Pledgor, without notice or assent by
such Pledgor, to execute, in connection with any sale provided for in Section 6.6(a) or 6.7, any
indorsements, assessments or other instruments of conveyance or transfer with respect to such
Pledgor’s Pledged Collateral, and (y) each Grantor hereby gives the Collateral Agent the power and
right, on behalf of such Grantor, without notice to or assent by such Grantor, to do any or all of
the following:





     (i) in the name of such Grantor or its own name, or otherwise, take possession of and
indorse and collect any checks, drafts, notes, acceptances or other instruments for the
payment of moneys due under any Account Receivable of such Grantor that constitutes Security
Collateral or with respect to any other Security Collateral of such Grantor and file any
claim or take any other action or institute any proceeding in any court of law or equity or
otherwise deemed appropriate by the Collateral Agent for the purpose of collecting any and
all such moneys due under any Account Receivable of such Grantor that constitutes Security
Collateral or with respect to any other Security Collateral of such Grantor whenever
payable;




     (ii) in the case of any Copyright, Patent, or Trademark constituting Collateral of such
Grantor, execute and deliver any and all agreements, instruments, documents and papers as
the Collateral Agent may reasonably request to such Grantor to evidence the Collateral
Agent’s and the Lenders’ security interest in such Copyright, Patent, or Trademark and the
goodwill and general intangibles of such Grantor relating thereto or represented thereby;




     (iii) pay or discharge taxes and Liens, other than Liens permitted under this Agreement
or the other Loan Documents, levied or placed on the Security Collateral of such Grantor,
effect any repairs or any insurance called for by the terms of this Agreement and pay all or
any part of the premiums therefor and the costs thereof; and




     (iv) (A) direct any party liable for any payment under any of the Security Collateral
of such Grantor to make payment of any and all moneys due or to become due thereunder
directly to the Collateral Agent or as the Collateral Agent shall direct; (B) ask or demand
for, collect, receive payment of and receipt for, any and all moneys, claims and other
amounts due or to become due at any time in respect of or arising out of any



36









 






     Security Collateral of such Grantor; (C) sign and indorse any invoices, freight or
express bills, bills of lading, storage or warehouse receipts, drafts against debtors,
assignments, verifications, notices and other documents in connection with any of the
Security Collateral of such Grantor; (D) commence and prosecute any suits, actions or
proceedings at law or in equity in any court of competent jurisdiction to collect the
Security Collateral of such Grantor or any portion thereof and to enforce any other right in
respect of any Security Collateral of such Grantor; (E) defend any suit, action or
proceeding brought against such Grantor with respect to any Security Collateral of such
Grantor; (F) settle, compromise or adjust any such suit, action or proceeding described in
clause (E) above and, in connection therewith, to give such discharges or releases as the
Collateral Agent may deem appropriate; (G) subject to any existing reserved rights or
licenses, assign any Copyright, Patent or Trademark constituting Security Collateral of such
Grantor (along with the goodwill of the business to which any such Copyright, Patent or
Trademark pertains), for such term or terms, on such conditions, and in such manner, as the
Collateral Agent shall in its sole discretion determine; and (H) generally, sell, transfer,
pledge and make any agreement with respect to or otherwise deal with any of the Security
Collateral of such Grantor as fully and completely as though the Collateral Agent were the
absolute owner thereof for all purposes, and do, at the Collateral Agent’s option and such
Grantor’s expense, at any time, or from time to time, all acts and things which the
Collateral Agent deems necessary to protect, preserve or realize upon the Security
Collateral of such Grantor and the Collateral Agent’s and the other Secured Parties’
security interests therein and to effect the intent of this Agreement, all as fully and
effectively as such Grantor might do.



          (b) The reasonable expenses of the Collateral Agent incurred in connection with actions
undertaken as provided in this Section 7.1, together with interest thereon at a rate per annum
equal to the rate per annum at which interest would then be payable on past due ABR Loans, from the
date of payment by the Collateral Agent to the date reimbursed by the relevant Grantor, shall be
payable by such Grantor to the Collateral Agent on demand.




          (c) Each Grantor hereby ratifies all that said attorney shall lawfully do or cause to be done
by virtue hereof. All powers, authorizations and agencies contained in this Agreement are coupled
with an interest and are irrevocable as to the relevant Grantor until this Agreement is terminated
as to such Grantor, and the security interests in the Security Collateral of such Grantor created
hereby are released.




          7.2 Duty of Collateral Agent. The Collateral Agent’s sole duty with respect to the
custody, safekeeping and physical preservation of the Security Collateral in its possession, under
Section 9-207 of the Code or otherwise, shall be to deal with it in the same manner as the
Collateral Agent deals with similar property for its own account. None of the Collateral Agent or
any other Secured Party nor any of their respective officers, directors, employees or agents shall
be liable for failure to demand, collect or realize upon any of the Security Collateral or for any
delay in doing so or shall be under any obligation to sell or otherwise dispose of any Security
Collateral upon the request of any Grantor or any other Person or, except as otherwise provided
herein, to take any other action whatsoever with regard to the Security Collateral or any part
thereof. The powers conferred on the Collateral Agent and the other Secured Parties hereunder are
solely to protect the Collateral Agent’s and the other Secured Parties’ interests in the Security






37









 







Collateral and shall not impose any duty upon the Collateral Agent or any other Secured Party
to exercise any such powers. The Collateral Agent and the other Secured Parties shall be
accountable only for amounts that they actually receive as a result of the exercise of such powers,
and neither they nor any of their officers, directors, employees or agents shall be responsible to
any Grantor for any act or failure to act hereunder, except as otherwise provided herein or for
their own gross negligence or willful misconduct.




          7.3 Financing Statements. Pursuant to any applicable law, each Grantor authorizes the
Collateral Agent to file or record financing statements and other filing or recording documents or
instruments with respect to such Grantor’s Security Collateral without the signature of such
Grantor in such form and in such filing offices as the Collateral Agent reasonably determines
appropriate to perfect the security interests of the Collateral Agent under this Agreement. Each
Grantor authorizes the Collateral Agent to use the collateral description “all personal property”
or “all assets” in any such financing statements. The Collateral Agent agrees to use commercially
reasonable efforts to notify the relevant Grantor of any financing or continuation statement filed
by it, provided that any failure to give such notice shall not affect the validity or effectiveness
of any such filing.




          7.4 Authority of Collateral Agent. Each Grantor acknowledges that the rights and
responsibilities of the Collateral Agent under this Agreement with respect to any action taken by
the Collateral Agent or the exercise or non-exercise by the Collateral Agent of any option, voting
right, request, judgment or other right or remedy provided for herein or resulting or arising out
of this Agreement or any amendment, supplement or other modification of this Agreement shall, as
between the Collateral Agent and the Secured Parties, be governed by the Credit Agreement and by
such other agreements with respect thereto as may exist from time to time among them, but, as
between the Collateral Agent and the Grantors, the Collateral Agent shall be conclusively presumed
to be acting as agent for the Secured Parties with full and valid authority so to act or refrain
from acting, and no Grantor shall be under any obligation, or entitlement, to make any inquiry
respecting such authority.




          7.5 Right of Inspection. Upon reasonable written advance notice to any Grantor and as
often as may reasonably be desired, or at any time and from time to time after the occurrence and
during the continuation of an Event of Default, the Collateral Agent shall have reasonable access
during normal business hours to all the books, correspondence and records of such Grantor, and the
Collateral Agent and its representatives may examine the same, and to the extent reasonable take
extracts therefrom and make photocopies thereof, and such Grantor agrees to render to the
Collateral Agent at such Grantor’s reasonable cost and expense, such clerical and other assistance
as may be reasonably requested with regard thereto. The Collateral Agent and its representatives
shall also have the right, upon reasonable advance written notice to such Grantor subject to any
lease restrictions, to enter during normal business hours into and upon any premises owned, leased
or operated by such Grantor where any of such Grantor’s Inventory or Equipment is located for the
purpose of inspecting the same, observing its use or otherwise protecting its interests therein.







38









 








SECTION 8 NON-LENDER SECURED PARTIES




          8.1 Rights to Collateral  (a) The Non-Lender Secured Parties shall not have any right
whatsoever to do any of the following: (i) exercise any rights or remedies with respect to the
Collateral (such term, as used in this Section 8, having the meaning assigned to it in the Credit
Agreement), including, without limitation, the right to (A) enforce any Liens or sell or otherwise
foreclose on any portion of the Collateral, (B) request any action, institute any proceedings,
exercise any voting rights, give any instructions, make any election, notice account debtors or
make collections with respect to all or any portion of the Collateral or (C) release any Guarantor
under this Agreement or release any Collateral from the Liens of any Security Document or consent
to or otherwise approve any such release; (ii) demand, accept or obtain any Lien on any Collateral
(except for Liens arising under, and subject to the terms of, this Agreement); (iii) vote in any
Bankruptcy Case or similar proceeding in respect of the Borrower or any of its Subsidiaries (any
such proceeding, for purposes of this clause (a), a “Bankruptcy”) with respect to, or take
any other actions concerning the Collateral; (iv) receive any proceeds from any sale, transfer or
other disposition of any of the Collateral (except in accordance with this Agreement); (v) oppose
any sale, transfer or other disposition of the Collateral; (vi) object to any debtor-in-possession
financing in any Bankruptcy which is provided by one or more Lenders among others (including on a
priming basis under Section 364(d) of the Bankruptcy Code); (vii) object to the use of cash
collateral in respect of the Collateral in any Bankruptcy; or (viii) seek, or object to the Lenders
seeking on an equal and ratable basis, any adequate protection or relief from the automatic stay
with respect to the Collateral in any Bankruptcy.




          (b) Each Non-Lender Secured Party, by its acceptance of the benefits of this Agreement and the
other Security Documents, agrees that in exercising rights and remedies with respect to the
Collateral, the Collateral Agent and the Lenders, with the consent of the Collateral Agent, may
enforce the provisions of the Security Documents and exercise remedies thereunder and under any
other Loan Documents (or refrain from enforcing rights and exercising remedies), all in such order
and in such manner as they may determine in the exercise of their sole business judgment. Such
exercise and enforcement shall include, without limitation, the rights to collect, sell, dispose of
or otherwise realize upon all or any part of the Collateral, to incur expenses in connection with
such collection, sale, disposition or other realization and to exercise all the rights and remedies
of a secured lender under the Uniform Commercial Code of any applicable jurisdiction. The
Non-Lender Secured Parties by their acceptance of the benefits of this Agreement and the other
Security Documents hereby agree not to contest or otherwise challenge any such collection, sale,
disposition or other realization of or upon all or any of the Collateral. Whether or not a
Bankruptcy Case has been commenced, the Non-Lender Secured Parties shall be deemed to have
consented to any sale or other disposition of any property, business or assets of the Borrower or
any of its Subsidiaries and the release of any or all of the Collateral from the Liens of any
Security Document in connection therewith.




          (c) Notwithstanding any provision of this Section 8.1, the Non-Lender Secured Parties shall be
entitled to file any necessary responsive or defensive pleadings in opposition to any motion,
claim, adversary proceeding or other pleadings (A) in order to prevent any Person from seeking to
foreclose on the Collateral or supersede the Non-Lender Secured Parties’ claim thereto or (B) in
opposition to any motion, claim, adversary proceeding or other






39









 







pleading made by any Person objecting to or otherwise seeking the disallowance of the claims
of the Non-Lender Secured Parties.




          (d) Each Non-Lender Secured Party, by its acceptance of the benefit of this Agreement, agrees
that the Collateral Agent and the Lenders may deal with the Collateral, including any exchange,
taking or release of Collateral, may change or increase the amount of the Borrower Obligations
and/or the Guarantor Obligations, and may release any Guarantor from its Obligations hereunder, all
without any liability or obligation (except as may be otherwise expressly provided herein) to the
Non-Lender Secured Parties.




          8.2 Appointment of Agent. Each Non-Lender Secured Party, by its acceptance of the
benefits of this Agreement and the other Security Documents, shall be deemed irrevocably to make,
constitute and appoint the Collateral Agent, as agent under the Credit Agreement (and all officers,
employees or agents designated by the Collateral Agent) as such Person’s true and lawful agent and
attorney-in-fact, and in such capacity, the Collateral Agent shall have the right, with power of
substitution for the Non-Lender Secured Parties and in each such Person’s name or otherwise, to
effectuate any sale, transfer or other disposition of the Collateral. It is understood and agreed
that the appointment of the Collateral Agent as the agent and attorney-in-fact of the Non-Lender
Secured Parties for the purposes set forth herein is coupled with an interest and is irrevocable.
It is understood and agreed that the Collateral Agent has appointed the Administrative Agent as its
agent for purposes of perfecting certain of the security interests created hereunder and for
otherwise carrying out certain of its obligations hereunder.




          8.3 Waiver of Claims. To the maximum extent permitted by law, each Non-Lender Secured
Party waives any claim it might have against the Collateral Agent or the Lenders with respect to,
or arising out of, any action or failure to act or any error of judgment, negligence, or mistake or
oversight whatsoever on the part of the Collateral Agent or the Lenders or their respective
directors, officers, employees or agents with respect to any exercise of rights or remedies under
the Loan Documents or any transaction relating to the Collateral (including, without limitation,
any such exercise described in Section 8.1(b) above), except for any such action or failure to act
which constitutes willful misconduct or gross negligence of such Person. None of the Collateral
Agent or any Lender or any of their respective directors, officers, employees or agents shall be
liable for failure to demand, collect or realize upon any of the Collateral or for any delay in
doing so or shall be under any obligation to sell or otherwise dispose of any Collateral upon the
request of the Borrower, any Subsidiary of the Borrower, any Non-Lender Secured Party or any other
Person or to take any other action or forbear from doing so whatsoever with regard to the
Collateral or any part thereof, except for any such action or failure to act which constitutes
willful misconduct or gross negligence of such Person.




SECTION 9 MISCELLANEOUS




          9.1 Amendments in Writing. None of the terms or provisions of this Agreement may be
waived, amended, supplemented or otherwise modified except by a written instrument executed by each
affected Grantor and the Collateral Agent, provided that (a) any provision of this Agreement
imposing obligations on any Grantor may be waived by the Collateral Agent in a written instrument
executed by the Collateral Agent and (b) notwithstanding anything to the contrary in Section 10.1
of the Credit Agreement, no such waiver and no such amendment or






40









 







modification shall amend, modify or waive the definition of “Secured Party” or Section 6.5 if
such waiver, amendment, or modification would adversely affect a Secured Party without the written
consent of each such affected Secured Party. For the avoidance of doubt, it is understood and
agreed that any amendment, amendment and restatement, waiver, supplement or other modification of
or to the Intercreditor Agreement that would have the effect, directly or indirectly, through any
reference herein to the Intercreditor Agreement or otherwise, of waiving, amending, supplementing
or otherwise modifying this Agreement, or any term or provision hereof, or any right or obligation
of any Grantor hereunder or in respect hereof, shall not be given such effect except pursuant to a
written instrument executed by each affected Grantor and the Collateral Agent in accordance with
this Section 9.1.




          9.2 Notices. All notices, requests and demands to or upon the Collateral Agent or any
Grantor hereunder shall be effected in the manner provided for in Section 10.2 of the Credit
Agreement; provided that any such notice, request or demand to or upon any Guarantor shall be
addressed to such Guarantor at its notice address set forth on Schedule 1, unless and until such
Guarantor shall change such address by notice to the Collateral Agent and the Administrative Agent
given in accordance with Section 10.2 of the Credit Agreement.




          9.3 No Waiver by Course of Conduct; Cumulative Remedies. None of the Collateral Agent
or any other Secured Party shall by any act (except by a written instrument pursuant to Section
9.1), delay, indulgence, omission or otherwise be deemed to have waived any right or remedy
hereunder or to have acquiesced in any Default or Event of Default. No failure to exercise, nor
any delay in exercising, on the part of the Collateral Agent or any other Secured Party, any right,
power or privilege hereunder shall operate as a waiver thereof. No single or partial exercise of
any right, power or privilege hereunder shall preclude any other or further exercise thereof or the
exercise of any other right, power or privilege. A waiver by the Collateral Agent or any other
Secured Party of any right or remedy hereunder on any one occasion shall not be construed as a bar
to any right or remedy which the Collateral Agent or such other Secured Party would otherwise have
on any future occasion. The rights and remedies herein provided are cumulative, may be exercised
singly or concurrently and are not exclusive of any other rights or remedies provided by law.




          9.4 Enforcement Expenses; Indemnification. (a) Each Guarantor jointly and severally
agrees to pay or reimburse each Secured Party and the Collateral Agent for all their respective
reasonable costs and expenses incurred in collecting against any Guarantor under the guarantee
contained in Section 2 or otherwise enforcing or preserving any rights under this Agreement against
such Guarantor and the other Loan Documents to which such Guarantor is a party, including, without
limitation, the reasonable fees and disbursements of counsel to the Secured Parties, the Collateral
Agent and the Administrative Agent.




          (b) Each Grantor jointly and severally agrees to pay, and to save the Collateral Agent, the
Administrative Agent and the other Secured Parties harmless from, (x) any and all liabilities with
respect to, or resulting from any delay in paying, any and all stamp, excise, sales or other
similar taxes which may be payable or determined to be payable with respect to any of the Security
Collateral or in connection with any of the transactions contemplated by this Agreement and (y) any
and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind or nature whatsoever with respect






41









 







to the execution, delivery, enforcement, performance and administration of this Agreement
(collectively, the “indemnified liabilities”), in each case to the extent the Borrower
would be required to do so pursuant to Section 10.5 of the Credit Agreement, and in any event
excluding any taxes or other indemnified liabilities arising from gross negligence or willful
misconduct of the Collateral Agent, the Administrative Agent or any other Secured Party.




          (c) The agreements in this Section 9.4 shall survive repayment of the Obligations and all
other amounts payable under the Credit Agreement and the other Loan Documents.




          9.5 Successors and Assigns. This Agreement shall be binding upon and shall inure to
the benefit of the Grantors, the Collateral Agent and the Secured Parties and their respective
successors and assigns; provided that no Grantor may assign, transfer or delegate any of its rights
or obligations under this Agreement without the prior written consent of the Collateral Agent.




          9.6 Set-Off. Each Guarantor hereby irrevocably authorizes each of the Administrative
Agent and the Collateral Agent and each other Secured Party at any time and from time to time
without notice to such Guarantor, any other Guarantor or the Borrower, any such notice being
expressly waived by each Guarantor and by the Borrower, to the extent permitted by applicable law,
upon the occurrence and during the continuance of an Event of Default under Section 8.1(f) of the
Credit Agreement with respect to any Guarantor so long as any amount remains unpaid after it
becomes due and payable by such Guarantor hereunder, to set-off and appropriate and apply against
any such amount any and all deposits (general or special, time or demand, provisional or final)
(other than the Collateral Proceeds Account), in any currency, and any other credits, indebtedness
or claims, in any currency, in each case whether direct or indirect, absolute or contingent,
matured or unmatured, at any time held or owing by the Collateral Agent, the Administrative Agent
or such other Secured Party to or for the credit or the account of such Guarantor, or any part
thereof in such amounts as the Collateral Agent, the Administrative Agent or such other Secured
Party may elect. The Collateral Agent, the Administrative Agent and each other Secured Party shall
notify such Guarantor promptly of any such set-off and the application made by the Collateral
Agent, the Administrative Agent or such other Secured Party of the proceeds thereof; provided that
the failure to give such notice shall not affect the validity of such set-off and application. The
rights of the Collateral Agent, the Administrative Agent and each other Secured Party under this
Section 9.6 are in addition to other rights and remedies (including, without limitation, other
rights of set-off) which the Collateral Agent, the Administrative Agent or such other Secured Party
may have.




          9.7 Counterparts. This Agreement may be executed by one or more of the parties to
this Agreement on any number of separate counterparts, and all of said counterparts taken together
shall be deemed to constitute one and the same instrument.




          9.8 Severability. Any provision of this Agreement which is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining provisions hereof, and any
such prohibition or unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction; provided that, with respect to any Pledged






42









 







Stock issued by a Foreign Subsidiary, all rights, powers and remedies provided in this
Agreement may be exercised only to the extent that they do not violate any provision of any law,
rule or regulation of any Governmental Authority applicable to any such Pledged Stock or affecting
the legality, validity or enforceability of any of the provisions of this Agreement against the
Pledgor (such laws, rules or regulations, “Applicable Law”) and are intended to be limited
to the extent necessary so that they will not render this Agreement invalid, unenforceable or not
entitled to be recorded, registered or filed under the provisions of any Applicable Law.




          9.9 Section Headings. The Section headings used in this Agreement are for convenience
of reference only and are not to affect the construction hereof or be taken into consideration in
the interpretation hereof.




          9.10 Integration. This Agreement and the other Loan Documents represent the entire
agreement of the Grantors, the Collateral Agent, the Administrative Agent and the other Secured
Parties with respect to the subject matter hereof, and there are no promises, undertakings,
representations or warranties by the Grantors, the Collateral Agent, the Administrative Agent or
any other Secured Party relative to subject matter hereof not expressly set forth or referred to
herein or in the other Loan Documents.




          9.11 GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES
HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE
STATE OF NEW YORK.




          9.12 Submission to Jurisdiction; Waivers. Each party hereto hereby irrevocably and
unconditionally:




          (a) submits for itself and its property in any legal action or proceeding relating to this
Agreement and the other Loan Documents to which it is a party, or for recognition and enforcement
of any judgment in respect thereof, to the non-exclusive general jurisdiction of the courts of the
State of New York, the courts of the United States of America for the Southern District of
New York, and appellate courts from any thereof;




          (b) consents that any such action or proceeding may be brought in such courts and waives any
objection that it may now or hereafter have to the venue of any such action or proceeding in any
such court or that such action or proceeding was brought in an inconvenient court and agrees not to
plead or claim the same;




          (c) agrees that service of process in any such action or proceeding may be effected by mailing
a copy thereof by registered or certified mail (or any substantially similar form of mail), postage
prepaid, to such party at its address referred to in Section 9.2 or at such other address of which
the Collateral Agent and the Administrative Agent (in the case of any other party hereto) or the
Borrower (in the case of the Collateral Agent and the Administrative Agent) shall have been
notified pursuant thereto;




          (d) agrees that nothing herein shall affect the right to effect service of process in any
other manner permitted by law or shall limit the right to sue in any other jurisdiction; and







43









 








          (e) waives, to the maximum extent not prohibited by law, any right it may have to claim or
recover in any legal action or proceeding referred to in this Section any punitive damages.




          9.13 Acknowledgments. Each Guarantor hereby acknowledges that:




          (a) it has been advised by counsel in the negotiation, execution and delivery of this
Agreement and the other Loan Documents to which it is a party;




          (b) none of the Collateral Agent, the Administrative Agent or any other Secured Party has any
fiduciary relationship with or duty to any Guarantor arising out of or in connection with this
Agreement or any of the other Loan Documents, and the relationship between the Guarantors, on the
one hand, and the Collateral Agent, the Administrative Agent and the other Secured Parties, on the
other hand, in connection herewith or therewith is solely that of debtor and creditor; and




          (c) no joint venture is created hereby or by the other Loan Documents or otherwise exists by
virtue of the transactions contemplated hereby among the Secured Parties or among the Guarantors
and the Secured Parties.




          9.14 WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY
WAIVES TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN
DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.




          9.15 Additional Grantors. Each new Subsidiary of the Borrower that is required to
become a party to this Agreement pursuant to Section 6.9 of the Credit Agreement shall become a
Grantor for all purposes of this Agreement upon execution and delivery by such Subsidiary of an
Assumption Agreement substantially in the form of Annex 1 hereto. Each existing Grantor that is
required to become a Pledgor with respect to Capital Stock of any new Subsidiary of the Borrower
pursuant to Section 6.9 of the Credit Agreement shall become a Pledgor with respect thereto upon
execution and delivery by such Grantor of a Supplemental Agreement substantially in the form of
Annex 2 hereto.




          9.16 Releases. (a) At such time as the Loans and the other Obligations (other than
any Obligations owing to a Non-Lender Secured Party in respect of the provision of cash management
services) then due and owing shall have been paid in full, all Security Collateral shall be
released from the Liens created hereby, and this Agreement and all obligations (other than those
expressly stated to survive such termination) of the Collateral Agent and each Grantor hereunder
shall terminate, all without delivery of any instrument or performance of any act by any party, and
all rights to the Security Collateral shall revert to the Grantors. At the request and sole
expense of any Grantor following any such termination, the Collateral Agent shall deliver to such
Grantor any Security Collateral held by the Collateral Agent hereunder, and the Collateral Agent
and the Administrative Agent shall execute and deliver to such Grantor such documents (including
without limitation UCC termination statements) as such Grantor shall reasonably request to evidence
such termination.







44









 








          (b) In connection with any sale or other disposition of Security Collateral permitted by the
Credit Agreement (other than any sale or disposition to another Grantor), the Lien pursuant to this
Agreement on such sold or disposed of Security Collateral shall be automatically released. In
connection with the sale or other disposition of all of the Capital Stock of any Guarantor (other
than to the Borrower or a Subsidiary of the Borrower) or the sale or other disposition of Security
Collateral (other than a sale or disposition to another Grantor) permitted under the Credit
Agreement, the Collateral Agent shall, upon receipt from the Borrower of a written request for the
release of such Guarantor from its Guarantee or the release of the Security Collateral subject to
such sale or other disposition, identifying such Guarantor or the relevant Security Collateral and
the terms of the sale or other disposition in reasonable detail, including the price thereof and
any expenses in connection therewith, together with a certification by the Borrower stating that
such transaction is in compliance with the Credit Agreement and the other Loan Documents, deliver
to the Borrower or the relevant Grantor any of the relevant Security Collateral held by the
Collateral Agent hereunder and the Collateral Agent and the Administrative Agent shall execute and
deliver to the relevant Grantor (at the sole cost and expense of such Grantor) all releases or
other documents (including without limitation UCC termination statements) necessary or reasonably
desirable for the release of such Guarantee or the Liens created hereby on such Security
Collateral, as applicable, as such Grantor may reasonably request.




          9.17 Judgment. (a) If for the purpose of obtaining judgment in any court it is
necessary to convert a sum due hereunder in one currency into another currency, the parties hereto
agree, to the fullest extent that they may effectively do so, that the rate of exchange used shall
be that at which in accordance with normal banking procedures the Collateral Agent could purchase
the first currency with such other currency on the Business Day preceding the day on which final
judgment is given.




          (b) The obligations of any Guarantor in respect of this Agreement to the Collateral Agent, for
the benefit of each holder of Secured Obligations, shall, notwithstanding any judgment in a
currency (the “judgment currency”) other than the currency in which the sum originally due
to such holder is denominated (the “original currency”), be discharged only to the extent
that on the Business Day following receipt by the Collateral Agent of any sum adjudged to be so due
in the judgment currency, the Collateral Agent may in accordance with normal banking procedures
purchase the original currency with the judgment currency; if the amount of the original currency
so purchased is less than the sum originally due to such holder in the original currency, such
Guarantor agrees, as a separate obligation and notwithstanding any such judgment, to indemnify the
Collateral Agent for the benefit of such holder, against such loss, and if the amount of the
original currency so purchased exceeds the sum originally due to the Collateral Agent, the
Collateral Agent agrees to remit to the Borrower, such excess. This covenant shall survive the
termination of this Agreement and payment of the Obligations and all other amounts payable
hereunder.




[Remainder of page left blank intentionally; Signature page to follow.]






45









 








[Signature Pages Left Intentionally Blank]









46









 











SCHEDULE 1




NOTICE ADDRESSES OF GUARANTORS




47









 





SCHEDULE 2




PLEDGED SECURITIES




Pledged Stock:



	 	 	 	 	 
	Pledgor	 	Issuer	 	Description of Pledged Stock
	 
	 	 
	 	 





Pledged Notes:




1









 





SCHEDULE 3




PERFECTION MATTERS




Existing Security Interests



	 	 	 	 	 
	Grantor	 	Secured Party	 	Description of Collateral
	 
	 	 
	 	 





UCC Filings




	 	 	 	 	 	 	 
	Grantor	 	State	 	Filing Office	 	Document Filed
	 
	 	 
	 	 
	 	 





Intellectual Property Filings




 









 





SCHEDULE 4




LOCATION OF JURISDICTION OF ORGANIZATION




	 	 	 
	Grantor	 	Location
	 
	 	 





 









 





SCHEDULE 5




INTELLECTUAL PROPERTY




Copyrights and Copyright Licenses


Grantor




Patents and Patent Licenses



Grantor




Trademarks and Trademark Licenses



Grantor




 









 





SCHEDULE 6




CONTRACTS







 









 








SCHEDULE 7




COMMERCIAL TORT CLAIMS









 









 








Annex 1 to

Guarantee and Collateral Agreement




ASSUMPTION AGREEMENT




          ASSUMPTION AGREEMENT, dated as of ______ ______, ______, made by
                                                            , a                     
 corporation (the “Additional Grantor”), in
favor of Wachovia Bank, National Association, as collateral agent and administrative agent (in such
capacity, the “Collateral Agent”) for the banks and other financial institutions (the
“Lenders”) from time to time parties to the Credit Agreement referred to below and the
other Secured Parties (as defined below). All capitalized terms not defined herein shall have the
meaning ascribed to them in such the Guarantee and Collateral Agreement referred to below, or if
not defined therein, in the Credit Agreement.




W
I T N E S S E
T H:




          WHEREAS, NCI Building Systems, Inc. (the “Borrower”), Wachovia Bank, National
Association, as administrative agent and collateral agent and the Lenders are parties to an Amended
and Restated Credit Agreement, dated as of [                    ] (as amended, supplemented, waived or
otherwise modified from time to time, the “Credit Agreement”);




          WHEREAS, in connection with the Credit Agreement, the Borrower and certain of its Subsidiaries
are, or are to become, parties to the Guarantee and Collateral Agreement, dated as of
[                    ] (as amended, supplemented, waived or otherwise modified from time to time, the
“Guarantee and Collateral Agreement”), in favor of the Collateral Agent, for the benefit of
the Secured Parties (as defined in the Guarantee and Collateral Agreement);




          WHEREAS, the Additional Grantor is a member of an affiliated group of companies that includes
the Borrower and each other Grantor; the proceeds of the extensions of credit under the Credit
Agreement will be used in part to enable the Borrower to make valuable transfers to one or more of
the other Grantors (including the Additional Grantor) in connection with the operation of their
respective businesses; and the Borrower and the other Grantors (including the Additional Grantor)
are engaged in related businesses, and each such Grantor (including the Additional Grantor) will
derive substantial direct and indirect benefit from the making of the extensions of credit under
the Credit Agreement;




          WHEREAS, the Credit Agreement requires the Additional Grantor to become a party to the
Guarantee and Collateral Agreement; and




          WHEREAS, the Additional Grantor has agreed to execute and deliver this Assumption Agreement in
order to become a party to the Guarantee and Collateral Agreement;




          NOW, THEREFORE, IT IS AGREED:




          1. Guarantee and Collateral Agreement. By executing and delivering this Assumption
Agreement, the Additional Grantor, as provided in Section 9.15 of the Guarantee and Collateral
Agreement, hereby becomes a party to the Guarantee and Collateral Agreement as a Grantor thereunder
with the same force and effect as if originally named therein as a Guarantor [, Grantor and
Pledgor] [and Grantor] [and Pledgor] 1 and, without limiting the generality of the






 




			
	1	 	Indicate the capacities in which the Additional
Grantor is becoming a Grantor.




 









 









foregoing, hereby expressly assumes all obligations and liabilities of a Guarantor [, Grantor
and Pledgor] [and Grantor] [and Pledgor]2 thereunder. The information set forth in
Annex 1-A hereto is hereby added to the information set forth in Schedules [___] to the
Guarantee and Collateral Agreement, and such Schedules are hereby amended and modified to include
such information. The Additional Grantor hereby represents and warrants that each of the
representations and warranties of such Additional Grantor, in its capacities as a Guarantor [,
Grantor and Pledgor] [and Grantor] [and Pledgor], 3 contained in Section 4 of the
Guarantee and Collateral Agreement is true and correct in all material respects on and as the date
hereof (after giving effect to this Assumption Agreement) as if made on and as of such date.




          2. GOVERNING LAW. THIS ASSUMPTION AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE
STATE OF NEW YORK.






 




			
	2	 	Indicate the capacities in which the Additional
Grantor is becoming a Grantor.
	 
	3	 	Indicate the capacities in which the Additional
Grantor is becoming a Grantor.




 









 










     IN WITNESS WHEREOF, the undersigned has caused this Assumption Agreement to be duly executed
and delivered as of the date first above written.



	 	 	 	 	 	 	 
	 	 	[ADDITIONAL GRANTOR]	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

Name:
	 	 
	 

	 	 	 	Title:	 	 






Acknowledged and Agreed to as

of the date hereof by:




WACHOVIA BANK, NATIONAL ASSOCIATION,

as Collateral Agent and Administrative Agent




	 	 	 	 	 
	By:
	 	 	 	 
	 

	 	 

Name:
	 	 
	 

	 	Title:	 	 











 









 








Annex 1-A to

Assumption Agreement




Supplement to

Guarantee and Collateral Agreement

Schedule 1




Supplement to

Guarantee and Collateral Agreement

Schedule 2



Supplement to

Guarantee and Collateral Agreement

Schedule 3



Supplement to

Guarantee and Collateral Agreement

Schedule 4



Supplement to

Guarantee and Collateral Agreement

Schedule 5



Supplement to

Guarantee and Collateral Agreement

Schedule 6



Supplement to

Guarantee and Collateral Agreement

Schedule 7








 









 








Annex 2 to

Guarantee and Collateral Agreement




SUPPLEMENTAL AGREEMENT




          SUPPLEMENTAL AGREEMENT, dated as of                      ___, ___, made by                     , a
                     corporation (the “Additional Pledgor”), in favor of Wachovia Bank, National
Association, as collateral agent and administrative agent (in such capacity, the “Collateral
Agent”) for the banks and other financial institutions (the “Lenders”) from time to
time parties to the Credit Agreement referred to below and the other Secured Parties (as defined
below). All capitalized terms not defined herein shall have the meaning ascribed to them in the
Guarantee and Collateral Agreement referred to below, or if not defined therein, in the Credit
Agreement.



W
I T N E S S E
T H:





          WHEREAS, NCI Building Systems, Inc. (the “Borrower”), Wachovia Bank, National
Association, as administrative agent and collateral agent and the Lenders are parties to an Amended
and Restated Credit Agreement, dated as of [                    ] (as amended, supplemented, waived or
otherwise modified from time to time, the “Credit Agreement”);




          WHEREAS, in connection with the Credit Agreement, the Borrower and certain of its Subsidiaries
are, or are to become, parties to the Guarantee and Collateral Agreement, dated as of [                    ]
(as amended, supplemented, waived or otherwise modified from time to time, the “Guarantee and
Collateral Agreement”), in favor of the Collateral Agent, for the benefit of the Secured
Parties (as defined in the Guarantee and Collateral Agreement);




          WHEREAS, the Credit Agreement requires the Additional Pledgor to become a Pledgor under the
Guarantee and Collateral Agreement with respect to Capital Stock of certain new Subsidiaries of the
Borrower; and




          WHEREAS, the Additional Pledgor has agreed to execute and deliver this Supplemental Agreement
in order to become such a Pledgor under the Guarantee and Collateral Agreement;




          NOW, THEREFORE, IT IS AGREED:




          1. Guarantee and Collateral Agreement. By executing and delivering this Supplemental
Agreement, the Additional Pledgor, as provided in Section 9.15 of the Guarantee and Collateral
Agreement, hereby becomes a Pledgor under the Guarantee and Collateral Agreement with respect to
the shares of Capital Stock of the Subsidiary of the Borrower listed in Annex 1-A hereto, as a
Grantor thereunder. The information set forth in Annex 1-A hereto is hereby added to the
information set forth in Schedule 2 to the Guarantee and Collateral Agreement, and such Schedule 2
is hereby amended and modified to include such information.




          2. GOVERNING LAW. THIS SUPPLEMENTAL AGREEMENT AND RIGHTS AND OBLIGATIONS OF THE
PARTIES HERUNDER SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS
OF THE STATE OF NEW YORK.







 









 








     IN WITNESS WHEREOF, the undersigned has caused this Supplemental Agreement to be duly executed
and delivered as of the date first above written.



	 	 	 	 	 	 	 
	 	 	[ADDITIONAL PLEDGOR]	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

Name:
	 	 
	 

	 	 	 	Title:	 	 






Acknowledged and Agreed to as

of the date hereof by:




WACHOVIA BANK, NATIONAL ASSOCIATION

as Collateral Agent and Administrative Agent




	 	 	 	 	 
	By:
	 	 	 	 
	 

	 	 

Name:
	 	 
	 

	 	Title:	 	 







 









 








Annex 2 to

Guarantee and Collateral Agreement




Supplement to

Guarantee and Collateral Agreement

Schedule 2




Pledged Stock



	 	 	 	 	 
	Pledgor	 	Issuer	 	Description of Pledged Stock
	 
	 	 
	 	 






 












 





EXHIBIT C-1 TO


AMENDED AND RESTATED CREDIT AGREEMENT


Drawn By and Return To:

Moore & Van Allen PLLC

Bank of America Corporate Center

100 North Tryon Street, Floor 47

Charlotte, North Carolina 28202-4003

Attn: Timothy W. Corrigan




	 	 	 
	STATE OF                     

	 	                                        
	 
	 	 
	COUNTY OF                     
	 	 






AMENDED AND RESTATED DEED OF TRUST, SECURITY AGREEMENT, ASSIGNMENT

OF LEASES AND RENTS AND FIXTURE FILING




     THIS AMENDED AND RESTATED DEED OF TRUST, SECURITY AGREEMENT, ASSIGNMENT OF LEASES AND RENTS
AND FIXTURE FILING (the “Deed of Trust”) is made and entered into as of the ___day of October,
2009, by and among                                         , a                     , with an address as of the date hereof at 10943
North Sam Houston Parkway West, Houston, Texas 77064, Attention: Chief Financial Officer (the
“Grantor”),                                         , a                     , as trustee, with an address as of the date
hereof at                                                              (together with its successors and assigns, in such capacity, the
“Trustee”), and WACHOVIA BANK, NATIONAL ASSOCIATION, a national banking association, in its
capacity as Collateral Agent for the Lenders from time to time party to the Credit Agreement
referenced below, with an address as of the date hereof at 21 Waterway Avenue, Suite 600, The
Woodlands, Texas 77380, Attention: Janet Ritter (in such capacity, the “Agent”).



RECITALS:




     WHEREAS, NCI Building Systems, Inc. (the “Borrower”), as the borrower, and certain
subsidiaries and affiliates of the Borrower, including the Grantor, as guarantors (collectively,
the “Guarantors”), entered into that certain Credit Agreement, dated as of June 18, 2004, among the
Borrower, the Guarantors, the Lenders from time to time party thereto and Wachovia Bank, National
Association, as amended and modified by that certain First Amendment to Credit Agreement, dated as
of November 9, 2004, that certain Second Amendment to Credit Agreement, dated as of October 14,
2005, that certain Third Amendment to Credit Agreement, dated as of April 7, 2006, and that certain
Waiver, dated as of July 15, 2009 (as so amended and modified, the “Original Credit
Agreement”);



     WHEREAS, the Borrower, the Lenders and the Agent have agreed to amend and restate the Original
Credit Agreement pursuant to that certain Amended and Restated Credit Agreement, dated as of
October ___, 2009 (as the same may be amended, restated, supplemented or otherwise modified from
time to time, the “Credit Agreement”; capitalized terms used herein and not otherwise defined shall
have the meanings assigned to such terms in the Credit Agreement);



     WHEREAS, the Grantor is the owner of the fee simple interest in the real property described on
Exhibit A attached hereto and incorporated herein by reference;



 









 





     WHEREAS, in connection with the Original Credit Agreement, the Grantor entered into that
certain Deed of Trust, Security Agreement, Assignment of Leases and Rents and Fixture Filing, dated
as of August 21, 2009 and recorded on ___, 2009 in the ___ County Recorder’s Office as
Instrument Number                     , by the Grantor for the benefit of the Agent (the “Original Deed
of Trust”);



     WHEREAS, the Lenders have agreed to enter into the Credit Agreement provided that, among other
things, the Grantor and the Agent amend and restate the Original Deed of Trust in the form hereof;



     WHEREAS, concurrently with the entering into of the Credit Agreement, the Borrower and the
Guarantors have entered into that certain ABL Facility, dated as of an equal date therewith. All
obligations of the Grantor under the ABL Facility are secured by, among other things, a certain
Deed of Trust, Security Agreement, Assignment of Leases and Rents and Fixture Filing executed by
the Grantor for the benefit of the Agent (as defined in the ABL Facility Agreement, the “ABL
Agent”); and



     WHEREAS, in order to induce (i) the Lenders to enter into the Credit Agreement, and (ii) the
Lenders (as defined in the ABL Facility Agreement) to enter into the ABL Facility, the Agent and
the ABL Agent have agreed to the subordination, intercreditor and other provisions set forth in
that certain Intercreditor Agreement, dated as of the date of the Credit Agreement.



W I T N E S S E T H:




     The Grantor, in consideration of the indebtedness herein recited and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, has irrevocably
granted, released, sold, remised, bargained, assigned, pledged, warranted, transferred and
conveyed, and does hereby grant, release, sell, remise, bargain, assign, pledge, warrant, transfer
and convey to the Trustee and the Trustee’s successors and assigns, in trust, with power of sale,
for the benefit of the Agent and its successors and assigns, a continuing security interest in and
to, and lien upon, all of the Grantor’s right, title and interest in and to the following described
land, real property interests, buildings, improvements and fixtures:




     (a) All that tract or parcel of land and other real property interests in                     
County,                     , as more particularly described in Exhibit A attached hereto
and made a part hereof (the “Land”), and all of the Grantor’s right, title and interest in
and to rights appurtenant thereto, including easement rights; and




     (b) All buildings and improvements of every kind and description now or hereafter
erected or placed on the Land (the “Improvements”) and all fixtures now or hereafter owned
by the Grantor and attached to or installed in and used in connection with the aforesaid
Land and Improvements (collectively, the “Fixtures”) (hereinafter, the Land, the
Improvements and the Fixtures may be collectively referred to as the “Premises”).



     TO HAVE AND HOLD the same, together with all privileges, hereditaments, easements and
appurtenances thereunto belonging, subject to the Permitted Liens, to the Trustee and the Trustee’s
successors and assigns to secure the Indebtedness (hereinafter defined) and other obligations
herein recited and upon this special trust; provided that, should (i) the Indebtedness (hereinafter
defined) secured hereby be paid according to the tenor and effect thereof when the same shall be
due and payable and should the Loan Parties timely and fully discharge their obligations secured
hereby and satisfy the obligations in full or (ii) the conditions set forth in the Credit Agreement
for the release of this Deed of Trust be fully satisfied (in the reasonable judgment of the Agent),
the lien and security interest of this Deed of Trust shall cease, terminate and be void and the
Agent or its successor or assign shall promptly



2









 




cause a release of this Deed of Trust to be filed in the appropriate office; and until such
obligations are fully satisfied, it shall remain in full force and virtue.




     And, as additional security for said Indebtedness, subject to the Guarantee and Collateral
Agreement, the Grantor hereby unconditionally assigns to the Agent all the security deposits,
rents, issues, profits and revenues of the Premises from time to time accruing (the “Rents and
Profits”), which assignment constitutes a present, absolute and unconditional assignment and not an
assignment for additional security only, reserving only the right to the Grantor to collect and
apply the same as the Grantor chooses as long as no Event of Default (as defined in Article III)
has occurred and is continuing.



     As additional collateral and further security for the Indebtedness, subject to the Guarantee
and Collateral Agreement, the Grantor does hereby assign to Agent and grants to Agent a security
interest in all of the right, title and the interest of the Grantor in and to any and all real
property leases and rental agreements (collectively, the “Leases”) with respect to the Premises or
any part thereof, and the Grantor agrees to execute and deliver to the Agent such additional
instruments, in form and substance reasonably satisfactory to the Agent, as may hereafter be
requested by the Agent to evidence and confirm said assignment; provided, however, that acceptance
of any such assignment shall not be construed to impose upon the Agent any obligation with respect
thereto.



     The Grantor, the Trustee and the Agent covenant, represent and agree as follows:



ARTICLE I




Indebtedness Secured



     1.1 Indebtedness. The Agent and the Lenders have agreed to establish a senior secured
credit facility in favor of the Borrower pursuant to the terms of the Credit Agreement. This Deed
of Trust is given to secure the payment and performance by the Grantor of (a) all obligations of
the Grantor under the Notes, the Credit Agreement, this Deed of Trust, the other Loan Documents and
any document made, delivered or given in connection with (i) any Interest Rate Protection
Agreement, Permitted Hedging Arrangement or Bank Products Agreement (as defined in the Guarantee
and Collateral Agreement) entered into with any Person who was at the time of entry into such
agreement a Lender or an affiliate of any Lender, (ii) any guaranty of the Borrower or any of its
Subsidiaries as to which any Secured Party (as defined in the Guarantee and Collateral Agreement)
is a beneficiary or (iii) the provision of cash management services by any Lender or an Affiliate
thereof to the Borrower or any Subsidiary thereof to any Secured Party (as defined in the Guarantee
and Collateral Agreement), howsoever evidenced, created, incurred or acquired, whether primary,
secondary, direct, contingent, or joint and several, (b) all obligations and liabilities of the
Grantor incurred in connection with the collection and enforcement of the foregoing to the extent
provided in the Credit Agreement and (c) all other Obligations (as defined in the Guarantee and
Collateral Agreement) of the Grantor (all of the foregoing, whether now existing or hereafter
arising, collectively, the “Indebtedness”).



     1.2 Future Advances. This Deed of Trust is given to secure the Indebtedness and the
repayment of the aforesaid obligations together with each advance of any Term Loan, any renewals or
extensions or modifications thereof upon the same or different terms or at the same or different
rate of interest and also to secure all future advances and readvances that may subsequently be
made to the Grantor or any other Loan Party by the Lenders evidenced by any promissory notes given
in connection with the aforesaid obligations, and all renewals, modifications, replacements and
extensions thereof. The lien of such future advances and re-advances shall relate back to the date
of this Deed of Trust.



3









 





ARTICLE II




Grantor’s Covenants, Representations and Agreements



     2.1 Title to Property. The Grantor has good title in fee simple to the Premises, and
the Premises are not subject to any Lien, except for Permitted Liens.



     2.2 Taxes and Fees; Maintenance of Premises. The Grantor agrees to comply with
Sections 6.3, 6.5(a), 6.5(b)(i), 7.3(a) and 10.5 of the
Credit Agreement to the extent applicable.



     2.3 Reimbursement. The Grantor agrees to comply with Section 6.5(b)(iii) of
the Credit Agreement to the extent applicable.



     2.4 Additional Documents. The Grantor agrees to comply with Section 6.9(d) of
the Credit Agreement to the extent applicable.



     2.5 Restrictions on Sale or Encumbrance. The Grantor agrees to comply with
Sections 7.3 and 7.6 of the Credit Agreement to the extent applicable.



     2.6 Fees and Expenses. The Grantor will promptly pay upon demand any and all
reasonable costs and expenses of the Agent, including, without limitation, reasonable attorneys’
fees actually incurred by the Agent, to the extent required under the Credit Agreement.



     2.7 Intentionally Omitted.



     2.8 Intentionally Omitted.



     2.9 Insurance.




     (a) Types Required. The Grantor shall maintain insurance for the Premises as
set forth in Section 6.5(a) of the Credit Agreement to the extent applicable.




     (b) Use of Proceeds. Insurance proceeds shall be applied or disbursed as set
forth in Sections 3.4(c) and 6.5(a) of the Credit Agreement to the extent
applicable.



     2.10 Eminent Domain. All proceeds or awards relating to condemnation or other taking
pursuant to the power of eminent domain shall be applied pursuant to Section 3.4(c) of the
Credit Agreement to the extent applicable.



     2.11 Releases and Waivers. The Grantor agrees that no release by the Agent of any
portion of the Premises, the Rents and Profits or the Leases, no subordination of lien, no
forbearance on the part of the Agent to collect on any Term Loan, or any part thereof, no waiver of
any right granted or remedy available to the Agent and no action taken or not taken by the Agent
shall, except to the extent expressly released, in any way have the effect of releasing the Grantor
from full responsibility to the Agent for the complete discharge of each and every of the Grantor’s
obligations hereunder.



     2.12 Intentionally Omitted.



     2.13 Compliance with Law. The Grantor agrees to comply with Section 6.4 of
the Credit Agreement to the extent applicable.



4









 





     2.14 Inspection. The Grantor agrees to comply with Section 6.6(a) of the
Credit Agreement to the extent applicable.



     2.15 Security Agreement.



     (a) This Deed of Trust is hereby made and declared to be a security agreement encumbering the
Fixtures, and Grantor grants to the Agent a security interest in the Fixtures. The Grantor grants
to the Agent all of the rights and remedies of a secured party under the laws of the state in which
the Premises are located. A financing statement or statements reciting this Deed of Trust to be a
security agreement with respect to the Fixtures may be appropriately filed by the Agent.



     (b) The Grantor warrants that, as of the date hereof, the name and address of the “Debtor”
(which is the Grantor) are as set forth in the preamble of this Deed of Trust and a statement
indicating the types, or describing the items, of collateral is set forth hereinabove. Grantor
warrants that Grantor’s exact legal name is correctly set forth in the preamble of this Deed of
Trust.



     (c) This Deed of Trust will be filed in the real property records.



     (d) The Grantor is a corporation organized under the laws of the State of ___and the
Grantor’s organizational identification number is                                         .



ARTICLE III




Events of Default



     An Event of Default shall exist and be continuing under the terms of this Deed of Trust upon
the existence and during the continuance of an Event of Default under the terms of the Credit
Agreement.



ARTICLE IV




Foreclosure



     4.1 Acceleration of Secured Indebtedness; Foreclosure. Upon the occurrence and during
the continuance of an Event of Default, the entire balance of the Indebtedness and any other
obligations due under the Loan Documents, including all accrued interest, shall become due and
payable to the extent such amounts become due and payable under the Credit Agreement. Provided an
Event of Default has occurred and is continuing, upon failure to pay the Indebtedness or reimburse
any other amounts due under the Loan Documents in full at any stated or accelerated maturity and in
addition to all other remedies available to the Agent at law or in equity, the Agent may do any of
the following:



     (a) Give notice of an Event of Default and of election to cause the Premises to be sold as may
be required by law or as may be necessary to cause the Trustee to exercise the power of sale
granted herein. The Trustee shall then record and give notice of an Event of Default as then
required by law and, after the expiration of such time as may be required by law, may sell the
property subject to this Deed of Trust at the time and place specified in the notice of sale, as a
whole or in separate parcels as directed by the Agent, or by the Grantor to the extent required by
law, at public auction to the highest bidder for cash in lawful money of the United States, payable
at time of sale, all in accordance with applicable law. The Trustee, from time to time, may
postpone or continue the sale of all or any portion of the property subject to this Deed of Trust
by public declaration at the time and place last appointed for the sale. No other



5









 




notice of the postponed sale shall be required except as required by applicable law. Upon any
sale, the Trustee shall deliver a deed conveying the property sold, without any covenant or
warranty, express or implied, to the purchaser or purchasers at the sale. Any person, including
the Grantor, the Trustee or the Agent, may purchase at the sale.




     (b) Commence proceedings for foreclosure of this Deed of Trust in the manner provided by law
for the foreclosure of a real property deed of trust.



     4.2 Waiver. To the extent permitted by applicable law, the Grantor hereby waives any
statutory right of redemption in connection with any foreclosure proceeding.



     4.3 Proceeds of Sale. The proceeds of any foreclosure sale of the Premises, or any
part thereof, will be distributed and applied in accordance with the terms and conditions of the
Credit Agreement (subject to any applicable provisions of applicable law).



     4.4 Trustee’s Fees. If a foreclosure proceeding is commenced by the Trustee but
terminated prior to its completion, the Trustee’s fees, disbursements and expenses (including legal
fees and expenses) will be reasonable but not more than one percent (1%) of the fair market value
of the Premises if the termination occurs prior to the first public auction sale and not more than
two percent (2%) of the fair market value of the Premises if the termination occurs after the first
public auction sale.



ARTICLE V




Additional Rights and Remedies of the Agent



     5.1 Rights Upon an Event of Default. Upon the occurrence and during the continuance
of an Event of Default, the Agent, immediately and without additional notice and without liability
therefor to the Grantor, except for gross negligence, willful misconduct or unlawful conduct, may
do or cause to be done any or all of the following to the extent permitted by applicable law, and
subject to the terms of the Intercreditor Agreement: (a) take physical possession of the Premises;
(b) exercise its right to collect the Rents and Profits; (c) enter into contracts for the
completion, repair and maintenance of the Improvements thereon; (d) expend Term Loan funds and any
rents, income and profits derived from the Premises for the payment of any taxes, insurance
premiums, assessments and charges for completion, repair and maintenance of the Improvements,
preservation of the lien of this Deed of Trust and satisfaction and fulfillment of any liabilities
or obligations of the Grantor arising out of or in any way connected with the Premises whether or
not such liabilities and obligations in any way affect, or may affect, the lien of this Deed of
Trust; (e) enter into leases demising the Premises or any part thereof; (f) take such steps to
protect and enforce the specific performance of any covenant, condition or agreement in the Notes,
this Deed of Trust, the Credit Agreement or the other Loan Documents, or to aid the execution of
any power herein granted; and (g) generally, supervise, manage, and contract with reference to the
Premises as if the Agent were equitable owner of the Premises. Notwithstanding the occurrence of
an Event of Default, the Agent shall continue to have the right to pay money, whether or not Term
Loan funds, for the purposes described in Sections 2.2 and 2.6 hereof, and all such
sums and interest thereon shall be secured hereby. The Grantor also agrees that any of the
foregoing rights and remedies of the Agent may be exercised at any time during the continuance of
an Event of Default independently of the exercise of any other such rights and remedies, and the
Agent may continue to exercise any or all such rights and remedies until (i) the Event(s) of
Default are cured, (ii) foreclosure and the conveyance of the Premises to the high bidder, or (iii)
the Term Loans and any other amounts then due and owing under the Credit Agreement to any Lender or
the Agent are paid in full.



6









 





     5.2 Appointment of Receiver. Upon the occurrence and during the continuance of an
Event of Default, subject to the terms of the Intercreditor Agreement, the Agent shall be entitled,
without additional notice and without regard to the adequacy of any security for the Indebtedness
secured hereby, whether the same shall then be occupied as a homestead or not, or the solvency of
any party bound for its payment, to make application for the appointment of a receiver to take
possession of and to operate the Premises, and to collect the rents, issues, profits, and income
thereof, all expenses of which shall be added to the Indebtedness and secured hereby. The receiver
shall have all the rights and powers provided for under the laws of the state in which the Premises
are located, including without limitation, the power to execute leases, and the power to collect
the rents, sales proceeds, issues, profits and proceeds of the Premises during the pendency of such
foreclosure suit, as well as during any further times when the Grantor, its successors or assigns,
except for the intervention of such receiver, would be entitled to collect such rents, sales
proceeds, issues, proceeds and profits, and all other powers which may be necessary or are usual in
such cases for the protection, possession, control, management and operation of the Premises during
the whole of said period. Receiver’s fees, reasonable attorneys’ fees and costs incurred in
connection with the appointment of a receiver pursuant to this Section 5.2 shall be secured by this
Deed of Trust. Notwithstanding the appointment of any receiver, trustee or other custodian, the
Agent shall be entitled to retain possession and control of any cash or other instruments at the
time held by or payable or deliverable under the terms of the Deed of Trust to the Agent to the
fullest extent permitted by law.



     5.3 Waivers. No waiver of a prior Event of Default shall operate to waive any
subsequent Event(s) of Default. All remedies provided in this Deed of Trust, the Notes, the Credit
Agreement or any of the other Loan Documents are cumulative and may, at the election of the Agent,
be exercised alternatively, successively, or in any manner and are in addition to any other rights
provided by law.



     5.4 Delivery of Possession After Foreclosure. In the event there is a foreclosure sale
hereunder and at the time of such sale, the Grantor or the Grantor’s successors or assigns are
occupying or using the Premises, or any part thereof, each and all immediately shall become the
tenant of the purchaser at such sale, which tenancy shall be a tenancy from day to day, terminable
at the will of either landlord or tenant, at a reasonable rental per day based upon the value of
the property occupied, such rental to be due daily to the purchaser; and to the extent permitted by
applicable law, the purchaser at such sale, notwithstanding any language herein apparently to the
contrary, shall have the sole option to demand possession immediately following the sale or to
permit the occupants to remain as tenants at will. In the event the tenant fails to surrender
possession of said property upon demand, the purchaser shall be entitled to institute and maintain
a summary action for possession of the property (such as an action for forcible detainer) in any
court having jurisdiction.



     5.5 Marshalling. The Grantor hereby waives, in the event of foreclosure of this Deed
of Trust or the enforcement by the Agent of any other rights and remedies hereunder, any right
otherwise available in respect to marshalling of assets which secure any Term Loan and any other
indebtedness secured hereby or to require the Agent to pursue its remedies against any other such
assets.



     5.6 Protection of Premises. Upon the occurrence and during the continuance of an
Event of Default, the Agent may take such actions, including, but not limited to disbursements of
such sums, as the Agent in its sole but reasonable discretion deems necessary to protect the
Agent’s interest in the Premises.



7









 





ARTICLE VI




General Conditions



     6.1 Substitution of Trustee.



          (a) Appointment of Successor Trustee. If, for any reason, the Agent shall elect to
substitute for the Trustee herein named (or for any successor to said Trustee), the Agent shall
have the right to appoint successor Trustee(s) by duly acknowledged written instruments, and each
new Trustee immediately upon recordation of the instrument so appointing him shall become successor
in title to the Premises for the uses and purposes of this Deed of Trust, with all the powers,
duties and obligations conferred on the Trustee in the same manner and to the same effect as though
he were named herein as the Trustee. If more than one Trustee has been appointed, each of such
Trustees and each successor thereto shall be and hereby is empowered to act independently.




          (b) Authority of the Agent. If the Agent is a banking corporation, state banking
corporation or a national banking association and the instrument of appointment of any successor or
replacement Trustee is executed on the Agent’s behalf by an officer of such corporation, state
banking corporation or national banking association, then such appointment may be executed by any
authorized officer or agent of the Agent and such appointment shall be conclusively presumed to be
executed with authority and shall be valid and sufficient without proof of any action by the board
of directors or any superior officer of the Agent.




          (c) Effect of Appointment of Successor Trustee. Upon the appointment and
designation of any successor, substitute or replacement Trustee, the Trustee’s entire estate and
title in the Premises shall vest in the designated successor, substitute or replacement Trustee.
Such successor, substitute or replacement Trustee shall thereupon succeed to and shall hold,
possess and execute all the rights, powers, privileges, immunities and duties herein conferred upon
the Trustee. All references herein to the Trustee shall be deemed to refer to the Trustee
(including any successor or substitute appointed and designated as herein provided) from time to
time acting hereunder.




          (d) Confirmation of Transfer and Succession. Any new Trustee appointed
pursuant to any of the provisions hereof shall, without any further act, deed or conveyance, become
vested with all the estates, properties, rights, powers and trusts of his predecessor in the rights
hereunder with like effect as if originally named as the Trustee herein; but nevertheless, upon the
written request of the Agent or of any successor, substitute or replacement Trustee, any former
Trustee ceasing to act shall execute and deliver an instrument transferring to such successor,
substitute or replacement Trustee all of the right, title, estate and interest in the Premises of
the Trustee so ceasing to act, together with all the rights, powers, privileges, immunities and
duties herein conferred upon the Trustee, and shall duly assign, transfer and deliver all
properties and moneys held by said Trustee hereunder to said successor, substitute or replacement
Trustee.




     6.2 Terms. The singular used herein shall be deemed to include the plural; the
masculine deemed to include the feminine and neuter; and the named parties deemed to include their
successors and assigns to the extent permitted under the Credit Agreement. The word “person” shall
include any individual, partnership, corporation, limited liability company, business trust, joint
stock company, trust, unincorporated association, joint venture, Governmental Authority or other
entity of whatever nature, and the word “Premises” shall include any portion of the Premises or
interest therein. The words “include”, “includes” and “including” shall be deemed to be followed
by the phrase without limitation.



8









 





     6.3 Notices. All notices, requests and other communications shall be given in
accordance with Section 10.2 of the Credit Agreement.



     6.4 Severability. If any provision of this Deed of Trust is determined to be illegal,
invalid or unenforceable, such provision shall be fully severable and the remaining provisions
shall remain in full force and effect and shall be construed without giving effect to the illegal,
invalid or unenforceable provisions.



     6.5 Headings. The captions and headings herein are inserted only as a matter of
convenience and for reference and in no way define, limit, or describe the scope of this Deed of
Trust nor the intent of any provision hereof.



     6.6 Intercreditor Agreement. Notwithstanding anything to the
contrary contained herein, the lien and security interest granted to the Agent pursuant to this
Deed of Trust and the exercise of any right or remedy by the Agent hereunder are subject to the
provisions of the Intercreditor Agreement.



     6.7 Conflicting Terms.



          (a) In the event of any conflict between the terms and provisions of the Intercreditor
Agreement and the terms and provisions of this Deed of Trust, the terms and provisions of the
Intercreditor Agreement shall control and supersede the provisions of this Deed of Trust with
respect to such conflicts other than with respect to Section 6.8.




          (b) In the event of any conflict between the terms and provisions of the Credit Agreement and
the terms and provisions of this Deed of Trust, the terms and provisions of the Credit Agreement
shall control and supersede the provisions of this Deed of Trust with respect to such conflicts
other than with respect to Section 6.8.




     6.8 Governing Law. This Deed of Trust shall be governed by and construed in
accordance with the internal law of the state in which the Premises are located.



     6.9 Application of the Foreclosure Law. If any provision in this Deed of
Trust shall be inconsistent with any provision of the foreclosure laws of the state in which the
Premises are located, the provisions of such laws shall take precedence over the provisions of this
Deed of Trust, but shall not invalidate or render unenforceable any other provision of this Deed of
Trust that can be construed in a manner consistent with such laws.



     6.10 Written Agreement. This Deed of Trust may not be amended, supplemented
or otherwise modified except in accordance with Section 10.1 of the Credit Agreement.



     6.11 Waiver of Jury Trial. Section 10.16 of the Credit Agreement is hereby
incorporated by reference.



     6.12 Request for Notice. The Grantor requests a copy of any statutory notice of
default and a copy of any statutory notice of sale hereunder be mailed to the Grantor at the
address specified in Section 6.3 of this Deed of Trust.



     6.13 Counterparts. This Deed of Trust may be executed by one or more of the
parties on any number of separate counterparts, and all of such counterparts taken together shall
be deemed to constitute one and the same instrument.



9









 





     6.14 Release. If any of the Premises shall be sold, transferred or otherwise
disposed of by the Grantor in a transaction permitted by the Credit Agreement, then the Agent, at
the request of the Grantor, shall execute and deliver to the Grantor all releases or other
documents reasonably necessary or desirable for the release of the Liens created hereby on the
Premises. The Grantor shall deliver to the Agent prior to the date of the proposed release, a
written request for release identifying the sale or other disposition in reasonable detail,
together with a certification by the Grantor stating that such transaction is in compliance with
the Credit Agreement and the other Loan Documents.



     6.15 State Specific Provisions. In the event of any inconsistencies between
this Section 6.15 and any of the other terms and provisions of this Deed of Trust, the
terms and provisions of this Section 6.15 shall control and be binding.



	 
	 


	 

	 







                                        .




     6.16 Amendment and Restatement of Original Deed of Trust. The Grantor and the
Agent acknowledge and agree that this Deed of Trust is executed for the purpose of amending and
restating the Original Deed of Trust and is not intended to extinguish, release or otherwise
discharge the Grantor’s obligations under the Original Deed of Trust and is not intended to be a
novation of the Grantor’s obligations under the Original Deed of Trust.



[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]




10









 





     IN WITNESS WHEREOF, the Grantor and the Agent have executed this Deed of Trust as of the above
written date.



	 	 	 	 	 	 	 
	 	 	GRANTOR:	 	 
	 
	 	 	 	 	 	 
	 	 	AGENT:	 	 
	 
	 	 	 	 	 	 
	 	 	WACHOVIA BANK, NATIONAL ASSOCIATION,	 	 
	 	 	a national banking association	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

Name:
	 	 
	 

	 	 	 	Title:	 	 






 









 






[ADD STATE NOTARY FORMS FOR GRANTOR AND AGENT]




 









 





Exhibit A




[Legal Description to be Attached]




 











 




EXHIBIT C-2 TO


AMENDED AND RESTATED CREDIT AGREEMENT




Drawn By and Return To:

Moore & Van Allen PLLC

Bank of America Corporate Center

100 North Tryon Street, Floor 47

Charlotte, North Carolina 28202-4003

Attn: Timothy W. Corrigan




_______________________________




AMENDED AND RESTATED DEED TO SECURE DEBT, SECURITY AGREEMENT AND

ASSIGNMENT OF LEASES AND RENTS




     THIS AMENDED AND RESTATED DEED TO SECURE DEBT, SECURITY AGREEMENT AND ASSIGNMENT OF LEASES AND
RENTS (the “Security Deed”) is made and entered into as of
the ______ day of October, 2009, by and
between ___, a ___, with an address as of the date hereof at 10943 North
Sam Houston Parkway West, Houston, Texas 77064, Attention: Chief Financial Officer (the
“Grantor”), and WACHOVIA BANK, NATIONAL ASSOCIATION, a national banking association, in its
capacity as Collateral Agent for the Lenders from time to time party to the Credit Agreement
referenced below, with an address as of the date hereof at 21 Waterway Avenue, Suite 600, The
Woodlands, Texas 77380, Attention: Janet Ritter (in such capacity, the “Agent”).



	 	 	 	 	 	 	 
	NOTE
	 	TO
	 	RECORDING
	 	OFFICER:
	 
	 
	 	 	 	 	 	 	 
	 
	 	 	 	 	 	. 	 
	 	 	 





RECITALS:




     WHEREAS, NCI Building Systems, Inc. (the “Borrower”), as the borrower, and certain
subsidiaries and affiliates of the Borrower, including the Grantor, as guarantors (collectively,
the “Guarantors”), entered into that certain Credit Agreement, dated as of June 18, 2004, among the
Borrower, the Guarantors, the Lenders from time to time party thereto and Wachovia Bank, National



 









 




Association, as amended and modified by that certain First Amendment to Credit Agreement, dated as
of November 9, 2004, that certain Second Amendment to Credit Agreement, dated as of October 14,
2005, that certain Third Amendment to Credit Agreement, dated as of April 7, 2006, and that certain
Waiver, dated as of July 15, 2009 (as so amended and modified, the “Original Credit
Agreement”);




     WHEREAS, the Borrower, the Lenders and the Agent have agreed to amend and restate the Original
Credit Agreement pursuant to that certain Amended and Restated Credit Agreement, dated as of
October ___, 2009 (as the same may be amended, restated, supplemented or otherwise modified from
time to time, the “Credit Agreement”; capitalized terms used herein and not otherwise defined shall
have the meanings assigned to such terms in the Credit Agreement);



     WHEREAS, the Grantor is the owner of the fee simple interest in the real property described on
Exhibit A attached hereto and incorporated herein by reference;



     WHEREAS, in connection with the Original Credit Agreement, the Grantor entered into that
certain Deed to Secure Debt, Security Agreement and Assignment of Leases and Rents, dated as of
August 21, 2009 and recorded on                     , 2009 in the                      County Recorder’s Office as
Instrument Number                                         , by the Grantor for the benefit of the Agent (the “Original Deed
to Secure Debt”);



     WHEREAS, the Lenders have agreed to enter into the Credit Agreement provided that, among other
things, the Grantor and the Agent amend and restate the Original Deed to Secure Debt in the form
hereof;



     WHEREAS, concurrently with the entering into of the Credit Agreement, the Borrower and the
Guarantors have entered into that certain ABL Facility, dated as of an equal date therewith. All
obligations of the Grantor under the ABL Facility are secured by, among other things, a certain
Deed to Secure Debt, Security Agreement and Assignment of Leases and Rents executed by the Grantor
for the benefit of the Agent (as defined in the ABL Facility Agreement, the “ABL Agent”); and



     WHEREAS, in order to induce (i) the Lenders to enter into the Credit Agreement, and (ii) the
Lenders (as defined in the ABL Facility Agreement) to enter into the ABL Facility, the Agent and
the ABL Agent have agreed to the subordination, intercreditor and other provisions set forth in
that certain Intercreditor Agreement, dated as of the date of the Credit Agreement.



W I T N E S S E T H:




     The Grantor, in consideration of the indebtedness herein recited and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, has irrevocably
granted, released, sold, remised, bargained, assigned, pledged, warranted, transferred and
conveyed, and does hereby grant, release, sell, remise, bargain, assign, pledge, warrant, transfer
and convey to the Agent and the Agent’s successors and assigns, and grants a continuing security
title and security interest in and to all of the Grantor’s right, title and interest in and to the
following described land, real property interests, buildings, improvements and fixtures:




     (a) All that tract or parcel of land and other real property interests in                     
County, Georgia, as more particularly described in Exhibit A attached hereto and
made a part hereof (the “Land”), and all of the Grantor’s right, title and interest in and
to rights appurtenant thereto, including easement rights; and



2









 






     (b) All buildings and improvements of every kind and description now or hereafter
erected or placed on the Land (the “Improvements”) and all fixtures now or hereafter owned
by the Grantor and attached to or installed in and used in connection with the aforesaid
Land and Improvements (collectively, the “Fixtures”) (hereinafter, the Land, the
Improvements and the Fixtures may be collectively referred to as the “Premises”).



     TO HAVE AND HOLD the same, together with all privileges, hereditaments, easements and
appurtenances thereunto belonging IN FEE SIMPLE forever, subject to the Permitted Liens, to the
Agent and the Agent’s successors and assigns to secure the Indebtedness (hereinafter defined) and
other obligations herein recited; provided that, should (i) the Indebtedness (hereinafter defined)
secured hereby be paid according to the tenor and effect thereof when the same shall be due and
payable and should the Loan Parties timely and fully discharge their obligations secured hereby and
satisfy the obligations in full or (ii) the conditions set forth in the Credit Agreement for the
release of this Security Deed be fully satisfied (in the reasonable judgment of the Agent), the
Agent or its successor or assign shall promptly cause a cancellation of this Security Deed to be
filed in the appropriate office; and until such obligations are fully satisfied, it shall remain in
full force and virtue.



     This Security Deed is intended to operate and is to be construed as a deed passing title to
the Premises to the Agent and is made under those provisions of the existing laws of the State of
Georgia relating to deeds to secure debt (including e.g. O.C.G.A. § 44-14-60), and not as a
mortgage, and is given to secure payment and performance of the Indebtedness (as hereinafter
defined) of the Grantor.



     And, as additional security for said Indebtedness, subject to the Guarantee and Collateral
Agreement, the Grantor hereby unconditionally assigns to the Agent all the security deposits,
rents, issues, profits and revenues of the Premises from time to time accruing (the “Rents and
Profits”), which assignment constitutes a present, absolute and unconditional assignment and not an
assignment for additional security only, reserving only the right to the Grantor to collect and
apply the same as the Grantor chooses as long as no Event of Default (as defined in Article III)
has occurred and is continuing.



     As additional collateral and further security for the Indebtedness, subject to the Guarantee
and Collateral Agreement, the Grantor does hereby assign to Agent and grants to Agent a security
interest in all of the right, title and the interest of the Grantor in and to any and all real
property leases and rental agreements (collectively, the “Leases”) with respect to the Premises or
any part thereof, and the Grantor agrees to execute and deliver to the Agent such additional
instruments, in form and substance reasonably satisfactory to the Agent, as may hereafter be
requested by the Agent to evidence and confirm said assignment; provided, however, that acceptance
of any such assignment shall not be construed to impose upon the Agent any obligation with respect
thereto.



     The Grantor and the Agent covenant, represent and agree as follows:



ARTICLE I




Indebtedness Secured



     1.1 Indebtedness. The Agent and the Lenders have agreed to establish a senior secured
credit facility in favor of the Borrower pursuant to the terms of the Credit Agreement. This
Security Deed is given to secure the payment and performance by the Grantor of (a) all obligations
of the Grantor under the Notes, the Credit Agreement, this Security Deed, the other Loan Documents
and any document made, delivered or given in connection with (i) any Interest Rate Protection
Agreement, Permitted Hedging



3









 




Arrangement or Bank Products Agreement (as defined in the Guarantee and Collateral Agreement)
entered into with any Person who was at the time of entry into such agreement a Lender or an
affiliate of any Lender, (ii) any guaranty of the Borrower or any of its Subsidiaries as to which
any Secured Party (as defined in the Guarantee and Collateral Agreement) is a beneficiary or (iii)
the provision of cash management services by any Lender or an Affiliate thereof to the Borrower or
any Subsidiary thereof to any Secured Party (as defined in the Guarantee and Collateral Agreement),
howsoever evidenced, created, incurred or acquired, whether primary, secondary, direct, contingent,
or joint and several, (b) all obligations and liabilities of the Grantor incurred in connection
with the collection and enforcement of the foregoing to the extent provided in the Credit Agreement
and (c) all other Obligations (as defined in the Guarantee and Collateral Agreement) of the Grantor
(all of the foregoing, whether now existing or hereafter arising, collectively, the
“Indebtedness”). The final maturity date of the Indebtedness shall be fifty-four (54) months after
the date hereof, as the same may be extended or renewed from time to time.




     1.2 Future Advances. This Security Deed is given to secure the Indebtedness and the
repayment of the aforesaid obligations together with each advance of any Term Loan, any renewals or
extensions or modifications thereof upon the same or different terms or at the same or different
rate of interest and also to secure all future advances and readvances that may subsequently be
made to the Grantor or any other Loan Party by the Lenders evidenced by any promissory notes given
in connection with the aforesaid obligations, and all renewals, modifications, replacements and
extensions thereof. The lien of such future advances and re-advances shall relate back to the date
of this Security Deed.



ARTICLE II




Grantor’s Covenants, Representations and Agreements



     2.1 Title to Property. The Grantor has good title in fee simple to the Premises, and
the Premises are not subject to any Lien, except for Permitted Liens.



     2.2 Taxes and Fees; Maintenance of Premises. The Grantor agrees to comply with
Sections 6.3, 6.5(a), 6.5(b)(i), 7.3(a) and 10.5 of the
Credit Agreement to the extent applicable.



     2.3 Reimbursement. The Grantor agrees to comply with Section 6.5(b)(iii) of
the Credit Agreement to the extent applicable.



     2.4 Additional Documents. The Grantor agrees to comply with Section 6.9(d) of
the Credit Agreement to the extent applicable.



     2.5 Restrictions on Sale or Encumbrance. The Grantor agrees to comply with
Sections 7.3 and 7.6 of the Credit Agreement to the extent applicable.



     2.6 Fees and Expenses. The Grantor will promptly pay upon demand any and all
reasonable costs and expenses of the Agent, including, without limitation, reasonable attorneys’
fees actually incurred by the Agent, to the extent required under the Credit Agreement.



     2.7 Intentionally Omitted.



     2.8 Intentionally Omitted.



4









 





     2.9 Insurance.




     (a) Types Required. The Grantor shall maintain insurance for the Premises as
set forth in Section 6.5(a) of the Credit Agreement to the extent applicable.




     (b) Use of Proceeds. Insurance proceeds shall be applied or disbursed as set
forth in Sections 3.4(c) and 6.5(a) of the Credit Agreement to the extent
applicable.



     2.10 Eminent Domain. All proceeds or awards relating to condemnation or other taking
pursuant to the power of eminent domain shall be applied pursuant to Section 3.4(c) of the
Credit Agreement to the extent applicable.



     2.11 Releases and Waivers. The Grantor agrees that no release by the Agent of any
portion of the Premises, the Rents and Profits or the Leases, no subordination of lien, no
forbearance on the part of the Agent to collect on any Term Loan, or any part thereof, no waiver of
any right granted or remedy available to the Agent and no action taken or not taken by the Agent
shall, except to the extent expressly released, in any way have the effect of releasing the Grantor
from full responsibility to the Agent for the complete discharge of each and every of the Grantor’s
obligations hereunder.



     2.12 Intentionally Omitted.



     2.13 Compliance with Law. The Grantor agrees to comply with Section 6.4 of
the Credit Agreement to the extent applicable.



     2.14 Inspection. The Grantor agrees to comply with Section 6.6(a) of the
Credit Agreement to the extent applicable.



     2.15 Security Agreement.



     (a) This Security Deed is hereby made and declared to be a security agreement encumbering the
Fixtures, and Grantor grants to the Agent a security interest in the Fixtures. The Grantor grants
to the Agent all of the rights and remedies of a secured party under the laws of the state in which
the Premises are located. A financing statement or statements reciting this Security Deed to be a
security agreement with respect to the Fixtures may be appropriately filed by the Agent.



     (b) The Grantor warrants that, as of the date hereof, the name and address of the “Debtor”
(which is the Grantor) are as set forth in the preamble of this Security Deed and a statement
indicating the types, or describing the items, of collateral is set forth hereinabove. Grantor
warrants that Grantor’s exact legal name is correctly set forth in the preamble of this Security
Deed.



     (c) This Security Deed will be filed in the real property records.



     (d) The Grantor is a corporation organized under the laws of the State of                      and the
Grantor’s organizational identification number is                                         .




5












 





ARTICLE III




Events of Default



     An Event of Default shall exist and be continuing under the terms of this Security Deed upon
the existence and during the continuance of an Event of Default under the terms of the Credit
Agreement.



ARTICLE IV




Foreclosure



     4.1 Acceleration of Secured Indebtedness; Foreclosure. Upon the occurrence and during
the continuance of an Event of Default, the entire balance of the Indebtedness and any other
obligations due under the Loan Documents, including all accrued interest, shall become due and
payable to the extent such amounts become due and payable under the Credit Agreement. Provided an
Event of Default has occurred and is continuing, upon failure to pay the Indebtedness or reimburse
any other amounts due under the Loan Documents in full at any stated or accelerated maturity and in
addition to all other remedies available to the Agent at law or in equity, the Agent may sell the
Premises or any part of the Premises at one or more public sale or sales before the door of the
courthouse of the county in which the Land or any part of the Land is situated, to the highest
bidder for cash, in order to pay the Indebtedness in whole or in part, and all expenses of sale and
of all proceedings in connection therewith, including reasonable attorney’s fees, after advertising
the time, place and terms of sale once a week for four (4) weeks immediately preceding such sale
(but without regard to the number of days) in a newspaper in which sheriff’s sales are advertised
in said county, all other notice being hereby waived by the Grantor to the fullest extent permitted
by law. At any such public sale, the Agent may execute and deliver to the purchaser a conveyance
of the Premises or any part of the Premises in fee simple, with no warranties of title, and to this
end the Grantor hereby constitutes and appoints the Agent as the agent and attorney-in-fact of the
Grantor to make such sale and conveyance, and thereby to divest the Grantor of all right, title and
equity that the Grantor may have in and to the Premises and to vest the same in the purchaser or
purchasers at such sale or sales, and all the acts and doings of said agent and attorney-in-fact
are hereby ratified and confirmed, and any recitals in said conveyance or conveyances as to facts
essential to a valid sale shall be binding upon the Grantor. The aforesaid power of sale and
agency hereby granted are coupled with an interest and are irrevocable, and shall not be exhausted
by one exercise thereof but may be exercised until full payment of all of the Indebtedness. In the
event of any sale under this Security Deed by virtue of the exercise of the powers herein granted,
or pursuant to any order in any judicial proceeding or otherwise, the Premises may be sold as an
entirety or in separate parcels and in such manner or order as the Agent in its discretion may
elect, and one or more exercises of the powers herein granted shall not extinguish nor exhaust such
powers, until the entire Premises are sold or the Indebtedness is paid in full. The Agent may, at
its option, sell the Premises subject to the rights of any tenants of the Premises, and the failure
to make any such tenants parties to any foreclosure proceedings and to foreclose their rights will
not be asserted by the Grantor to be a defense to any proceedings instituted by the Agent to
collect the Indebtedness. If the Indebtedness is now or hereafter further secured by any
mortgages, deeds to secure debt, chattel mortgages, pledges, contracts of guaranty, assignments of
lease or other security instruments, the Agent may at its option exhaust the remedies granted under
any of said security either concurrently or independently, and in such order as the Agent may
determine in its discretion. Upon any foreclosure sale, the Agent may bid for and purchase the
Premises and shall be entitled to apply all or any part of the Indebtedness as a credit to the
purchase price. In the event of any such foreclosure sale by the Agent, the Grantor shall be
deemed a tenant holding over and shall forthwith deliver possession to the purchaser or purchasers
at such sale or be summarily dispossessed according to



6









 





provisions of law applicable to tenants holding over. In case the Agent shall have proceeded to
enforce any right, power or remedy under this Security Deed by foreclosure, entry or otherwise or
in the event the Agent commences advertising of the intended exercise of the sale under power
provided hereunder, and such proceeding or advertisement shall have been withdrawn, discontinued or
abandoned for any reason, then in every such case (i) the Grantor and the Agent shall be restored
to their former positions and rights, (ii) all rights, powers and remedies of the Agent shall
continue as if no such proceeding had taken place, (iii) each and every Event of Default declared
or occurring prior or subsequent to such withdrawal, discontinuance or abandonment shall be deemed
to be a continuing Event of Default, and (iv) neither this Security Deed, nor the Notes, nor the
Indebtedness, nor any other Loan Document shall be or shall be deemed to have been reinstated or
otherwise affected by such withdrawal, discontinuance or abandonment; and, to the fullest extent
permitted by law, the Grantor hereby expressly waives the benefit of any statute or rule of law now
provided, or which may hereafter be provided, which would produce a result contrary to or in
conflict with this sentence.




     4.2 Proceeds of Sale. The proceeds of any foreclosure sale of the Premises, or any
part thereof, will be distributed and applied in accordance with the terms and conditions of the
Credit Agreement (subject to any applicable provisions of applicable law).



ARTICLE V




Additional Rights and Remedies of the Agent



     5.1 Rights Upon an Event of Default. Upon the occurrence and during the continuance
of an Event of Default, the Agent, immediately and without additional notice and without liability
therefor to the Grantor, except for gross negligence, willful misconduct or unlawful conduct, may
do or cause to be done any or all of the following to the extent permitted by applicable law, and
subject to the terms of the Intercreditor Agreement: (a) take physical possession of the Premises;
(b) exercise its right to collect the Rents and Profits; (c) enter into contracts for the
completion, repair and maintenance of the Improvements thereon; (d) expend Term Loan funds and any
rents, income and profits derived from the Premises for the payment of any taxes, insurance
premiums, assessments and charges for completion, repair and maintenance of the Improvements,
preservation of the lien of this Security Deed and satisfaction and fulfillment of any liabilities
or obligations of the Grantor arising out of or in any way connected with the Premises whether or
not such liabilities and obligations in any way affect, or may affect, the lien of this Security
Deed; (e) enter into leases demising the Premises or any part thereof; (f) take such steps to
protect and enforce the specific performance of any covenant, condition or agreement in the Notes,
this Security Deed, the Credit Agreement or the other Loan Documents, or to aid the execution of
any power herein granted; and (g) generally, supervise, manage, and contract with reference to the
Premises as if the Agent were equitable owner of the Premises. Notwithstanding the occurrence of
an Event of Default, the Agent shall continue to have the right to pay money, whether or not Term
Loan funds, for the purposes described in Sections 2.2 and 2.6 hereof, and all such
sums and interest thereon shall be secured hereby. The Grantor also agrees that any of the
foregoing rights and remedies of the Agent may be exercised at any time during the continuance of
an Event of Default independently of the exercise of any other such rights and remedies, and the
Agent may continue to exercise any or all such rights and remedies until (i) the Event(s) of
Default are cured, (ii) foreclosure and the conveyance of the Premises to the high bidder, or (iii)
the Term Loans and any other amounts then due and owing under the Credit Agreement to any Lender or
the Agent are paid in full.



     5.2 Appointment of Receiver. Upon the occurrence and during the continuance of an
Event of Default, subject to the terms of the Intercreditor Agreement, the Agent shall be entitled,
without



7









 





additional notice and without regard to the adequacy of any security for the Indebtedness secured
hereby, whether the same shall then be occupied as a homestead or not, or the solvency of any party
bound for its payment, to make application for the appointment of a receiver to take possession of
and to operate the Premises, and to collect the rents, issues, profits, and income thereof, all
expenses of which shall be added to the Indebtedness and secured hereby. The receiver shall have
all the rights and powers provided for under the laws of the State of Georgia, including without
limitation, the power to execute leases, and the power to collect the rents, sales proceeds,
issues, profits and proceeds of the Premises during the pendency of such foreclosure suit, as well
as during any further times when the Grantor, its successors or assigns, except for the
intervention of such receiver, would be entitled to collect such rents, sales proceeds, issues,
proceeds and profits, and all other powers which may be necessary or are usual in such cases for
the protection, possession, control, management and operation of the Premises during the whole of
said period. Receiver’s fees, reasonable attorneys’ fees and costs incurred in connection with the
appointment of a receiver pursuant to this Section 5.2 shall be secured by this Security Deed.
Notwithstanding the appointment of any receiver, trustee or other custodian, the Agent shall be
entitled to retain possession and control of any cash or other instruments at the time held by or
payable or deliverable under the terms of the Security Deed to the Agent to the fullest extent
permitted by law.




     5.3 Waivers. No waiver of a prior Event of Default shall operate to waive any
subsequent Event(s) of Default. All remedies provided in this Security Deed, the Notes, the Credit
Agreement or any of the other Loan Documents are cumulative and may, at the election of the Agent,
be exercised alternatively, successively, or in any manner and are in addition to any other rights
provided by law.



     5.4 Delivery of Possession After Foreclosure. In the event there is a foreclosure
sale hereunder and at the time of such sale, the Grantor or the Grantor’s successors or assigns are
occupying or using the Premises, or any part thereof, each and all immediately shall become the
tenant of the purchaser at such sale, which tenancy shall be a tenancy from day to day, terminable
at the will of either landlord or tenant, at a reasonable rental per day based upon the value of
the property occupied, such rental to be due daily to the purchaser; and to the extent permitted by
applicable law, the purchaser at such sale, notwithstanding any language herein apparently to the
contrary, shall have the sole option to demand possession immediately following the sale or to
permit the occupants to remain as tenants at will. In the event the tenant fails to surrender
possession of said property upon demand, the purchaser shall be entitled to institute and maintain
a summary action for possession of the property (such as an action for forcible detainer) in any
court having jurisdiction.



     5.5 Marshalling. The Grantor hereby waives, in the event of foreclosure of this
Security Deed or the enforcement by the Agent of any other rights and remedies hereunder, any right
otherwise available in respect to marshalling of assets which secure any Term Loan and any other
indebtedness secured hereby or to require the Agent to pursue its remedies against any other such
assets.



     5.6 Protection of Premises. Upon the occurrence and during the continuance of an
Event of Default, the Agent may take such actions, including, but not limited to disbursements of
such sums, as the Agent in its sole but reasonable discretion deems necessary to protect the
Agent’s interest in the Premises.



     5.7 CONSTITUTIONAL WAIVER. BY EXECUTION OF THIS SECURITY DEED AND BY INITIALING THIS
PARAGRAPH 5.7, THE GRANTOR EXPRESSLY ACKNOWLEDGES THE RIGHT, SUBJECT TO THE CREDIT AGREEMENT, TO
ACCELERATE THE INDEBTEDNESS EVIDENCED BY THE NOTES AND THE POWER OF ATTORNEY GIVEN HEREIN TO THE
AGENT TO SELL THE PREMISES BY NONJUDICIAL FORECLOSURE UPON AN EVENT OF DEFAULT BY THE GRANTOR
WITHOUT ANY JUDICIAL HEARING AND WITHOUT ANY NOTICE OTHER THAN SUCH NOTICE (IF ANY) AS IS
SPECIFICALLY REQUIRED TO BE



8









 





GIVEN UNDER THE PROVISIONS OF THIS SECURITY DEED AND TO THE FULLEST EXTENT PERMITTED BY LAW, THE
GRANTOR HEREBY WAIVES ANY RIGHT THE GRANTOR MAY HAVE UNDER THE CONSTITUTION OR THE LAWS OF THE
STATE OF GEORGIA OR THE CONSTITUTION OR THE LAWS OF THE UNITED STATES OF AMERICA TO NOTICE, OTHER
THAN EXPRESSLY PROVIDED FOR IN THIS SECURITY DEED OR THE CREDIT AGREEMENT, OR TO A JUDICIAL HEARING
PRIOR TO THE EXERCISE OF ANY RIGHT OR REMEDY PROVIDED BY THIS INSTRUMENT TO THE AGENT, AND, TO THE
FULLEST EXTENT PERMITTED BY LAW, THE GRANTOR WAIVES THE GRANTOR’S RIGHTS, IF ANY, TO SET ASIDE OR
INVALIDATE ANY SALE DULY CONSUMMATED IN ACCORDANCE WITH THE PROVISIONS OF THIS SECURITY DEED ON THE
GROUNDS (IF SUCH BE THE CASE) THAT THE SALE WAS CONSUMMATED WITHOUT A PRIOR JUDICIAL HEARING. ALL
WAIVERS BY THE GRANTOR IN THIS PARAGRAPH HAVE BEEN MADE VOLUNTARILY, INTELLIGENTLY, AND KNOWINGLY,
AFTER THE GRANTOR HAS BY THE GRANTOR’S ATTORNEY BEEN FIRST APPRISED OF AND COUNSELED WITH RESPECT
TO THE GRANTOR’S POSSIBLE ALTERNATIVE RIGHTS.




	 	 	 
	 

(Initialed and Acknowledged by Grantor)

	 	 






ARTICLE VI




General Conditions



     6.1 Terms. The singular used herein shall be deemed to include the plural; the
masculine deemed to include the feminine and neuter; and the named parties deemed to include their
successors and assigns to the extent permitted under the Credit Agreement. The word “person” shall
include any individual, partnership, corporation, limited liability company, business trust, joint
stock company, trust, unincorporated association, joint venture, Governmental Authority or other
entity of whatever nature, and the word “Premises” shall include any portion of the Premises or
interest therein. The words “include”, “includes” and “including” shall be deemed to be followed
by the phrase without limitation.



     6.2 Notices. All notices, requests and other communications shall be given in
accordance with Section 10.2 of the Credit Agreement.



     6.3 Severability. If any provision of this Security Deed is determined to be illegal,
invalid or unenforceable, such provision shall be fully severable and the remaining provisions
shall remain in full force and effect and shall be construed without giving effect to the illegal,
invalid or unenforceable provisions.



     6.4 Headings. The captions and headings herein are inserted only as a matter of
convenience and for reference and in no way define, limit, or describe the scope of this Security
Deed nor the intent of any provision hereof.



     6.5 Intercreditor Agreement. Notwithstanding anything to the contrary
contained herein, the lien and security interest granted to the Agent pursuant to this Security
Deed and the exercise of any right or remedy by the Agent hereunder are subject to the provisions
of the Intercreditor Agreement.



9









 





     6.6 Conflicting Terms.


          (a) In the event of any conflict between the terms and provisions of the Intercreditor
Agreement and the terms and provisions of this Security Deed, the terms and provisions of the
Intercreditor Agreement shall control and supersede the provisions of this Security Deed with
respect to such conflicts other than with respect to Section 6.7.


          (b) In the event of any conflict between the terms and provisions of the Credit Agreement and
the terms and provisions of this Security Deed, the terms and provisions of the Credit Agreement
shall control and supersede the provisions of this Security Deed with respect to such conflicts
other than with respect to Section 6.7.



     6. 7 Governing Law. This Security Deed shall be governed by and construed in
accordance with the internal law of the state in which the Premises are located.



     6. 8 Application of the Foreclosure Law. If any provision in this Security
Deed shall be inconsistent with any provision of the foreclosure laws of the State of Georgia, the
provisions of such laws shall take precedence over the provisions of this Security Deed, but shall
not invalidate or render unenforceable any other provision of this Security Deed that can be
construed in a manner consistent with such laws.



     6. 9 Written Agreement. This Security Deed may not be amended, supplemented
or otherwise modified except in accordance with Section 10.1 of the Credit Agreement.



     6. 10 Waiver of Jury Trial. Section 10.16 of the Credit Agreement is
hereby incorporated by reference.



     6. 11 Request for Notice. The Grantor requests a copy of any statutory notice
of default and a copy of any statutory notice of sale hereunder be mailed to the Grantor at the
address specified in Section 6.2 of this Security Deed.



     6.12 Counterparts. This Security Deed may be executed by one or more of the
parties on any number of separate counterparts, and all of such counterparts taken together shall
be deemed to constitute one and the same instrument.



     6.13 Intentionally Omitted.



     6.14 Release. If any of the Premises shall be sold, transferred or otherwise
disposed of by the Grantor in a transaction permitted by the Credit Agreement, then the Agent, at
the request of the Grantor, shall execute and deliver to the Grantor all releases, cancellations or
other documents reasonably necessary or desirable for the release or cancellation of this Security
Deed. The Grantor shall deliver to the Agent prior to the date of the proposed release, a written
request for release identifying the sale or other disposition in reasonable detail, together with a
certification by the Grantor stating that such transaction is in compliance with the Credit
Agreement and the other Loan Documents.



     6.15 Amendment and Restatement of Original Security Deed. The Grantor and the
Agent acknowledge and agree that this Security Deed is executed for the purpose of amending and
restating the Original Security Deed and is not intended to extinguish, release or otherwise
discharge the Grantor’s obligations under the Original Security Deed and is not intended to be a
novation of the Grantor’s obligations under the Original Security Deed.



10









 





[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]




11









 








     IN WITNESS WHEREOF, the Grantor and the Agent have executed this Security Deed under seal as
of the above written date.



	 	 	 	 	 	 	 
	 	 	GRANTOR:	 	 
	 
	 	 	 	 	 	 
	 	 	                    ,	 	 
	 	 	a                     	 	 
	 
	 	 	 	 	 	 
	Signed, sealed and delivered

in the presence of:
	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	Name:
	 	 

	 	 
	 

	 	Title:	 	 	 	 
	 
	 	 	 	 	 	 
	 

Unofficial Witness

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 

Notary Public

	 	 	 	 	 	 






My Commission Expires:                                        




[Notary Seal]




	 	 	 	 	 	 	 
	 	 	AGENT:	 	 
	 
	 	 	 	 	 	 
	 	 	WACHOVIA BANK, NATIONAL ASSOCIATION,

a national banking association	 	 
	 
	 	 	 	 	 	 
	Signed, sealed and delivered

in the presence of:
	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	Name:
	 	 

	 	 
	 

	 	Title:	 	 	 	 
	 
	 	 	 	 	 	 
	 

Unofficial Witness

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 

Notary Public

	 	 	 	 	 	 






My Commission Expires:                                        




[Notary Seal]






12









 








Exhibit A




[Legal Description to be Attached]














 






EXHIBIT C-3 TO


AMENDED AND RESTATED CREDIT AGREEMENT




Drawn By and Return To:

Moore & Van Allen PLLC

Bank of America Corporate Center

100 North Tryon Street, Floor 47

Charlotte, North Carolina 28202-4003

Attn: Timothy W. Corrigan




			
	 	 	 
	STATE OF                                         
	 	                                                            






COUNTY OF                                         




AMENDED AND RESTATED MORTGAGE, SECURITY AGREEMENT, ASSIGNMENT

OF LEASES AND RENTS AND FIXTURE FILING




     THIS AMENDED AND RESTATED MORTGAGE, SECURITY AGREEMENT, ASSIGNMENT OF LEASES AND RENTS AND
FIXTURE FILING (the “Mortgage”) is made and entered into as of the ___day of October, 2009, by and
between                                         , a                                     
    , with an address as of the date hereof at
10943 North Sam Houston Parkway West, Houston, Texas 77064, Attention: Chief Financial Officer
(the “Grantor”), and WACHOVIA BANK, NATIONAL ASSOCIATION, a national banking association, in its
capacity as Collateral Agent for the Lenders from time to time party to the Credit Agreement
referenced below, with an address as of the date hereof at 21 Waterway Avenue, Suite 600, The
Woodlands, Texas 77380, Attention: Janet Ritter (in such capacity, the “Agent”).



RECITALS:




     WHEREAS, NCI Building Systems, Inc. (the “Borrower”), as the borrower, and certain
subsidiaries and affiliates of the Borrower, including the Grantor, as guarantors (collectively,
the “Guarantors”), entered into that certain Credit Agreement, dated as of June 18, 2004, among the
Borrower, the Guarantors, the Lenders from time to time party thereto and Wachovia Bank, National
Association, as amended and modified by that certain First Amendment to Credit Agreement, dated as
of November 9, 2004, that certain Second Amendment to Credit Agreement, dated as of October 14,
2005, that certain Third Amendment to Credit Agreement, dated as of April 7, 2006, and that certain
Waiver, dated as of July 15, 2009 (as so amended and modified, the “Original Credit
Agreement”);



     WHEREAS, the Borrower, the Lenders and the Agent have agreed to amend and restate the Original
Credit Agreement pursuant to that certain Amended and Restated Credit Agreement, dated as of
October ___, 2009 (as the same may be amended, restated, supplemented or otherwise modified from
time to time, the “Credit Agreement”; capitalized terms used herein and not otherwise defined shall
have the meanings assigned to such terms in the Credit Agreement);



     WHEREAS, the Grantor is the owner of the fee simple interest in the real property described on
Exhibit A attached hereto and incorporated herein by reference;



     WHEREAS, in connection with the Original Credit Agreement, the Grantor entered into that
certain Mortgage, Security Agreement, Assignment of Leases and Rents and Fixture Filing, dated as
of August 21, 2009 and recorded on                     , 2009 in the                      County Recorder’s Office as
Instrument Number                     , by the Grantor for the benefit of the Agent (the “Original
Mortgage”);



 









 





     WHEREAS, the Lenders have agreed to enter into the Credit Agreement provided that, among other
things, the Grantor and the Agent amend and restate the Original Mortgage in the form hereof;




     WHEREAS, concurrently with the entering into of the Credit Agreement, the Borrower and the
Guarantors have entered into that certain ABL Facility, dated as of an equal date therewith. All
obligations of the Grantor under the ABL Facility are secured by, among other things, a certain
Mortgage, Security Agreement, Assignment of Leases and Rents and Fixture Filing executed by the
Grantor for the benefit of the Agent (as defined in the ABL Facility Agreement, the “ABL Agent”);
and



     WHEREAS, in order to induce (i) the Lenders to enter into the Credit Agreement, and (ii) the
Lenders (as defined in the ABL Facility Agreement) to enter into the ABL Facility, the Agent and
the ABL Agent have agreed to the subordination, intercreditor and other provisions set forth in
that certain Intercreditor Agreement, dated as of the date of the Credit Agreement.



W I T N E S S E T H:




     The Grantor, in consideration of the indebtedness herein recited and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, has irrevocably
granted, released, sold, remised, bargained, assigned, pledged, warranted, mortgaged, transferred
and conveyed, and does hereby grant, release, sell, remise, bargain, assign, pledge, warrant,
mortgage, transfer and convey to the Agent and the Agent’s successors and assigns, a continuing
security interest in and to, and lien upon, all of the Grantor’s right, title and interest in and
to the following described land, real property interests, buildings, improvements and fixtures:




     (a) All that tract or parcel of land and other real property interests in                     
County,                     , as more particularly described in Exhibit A attached hereto
and made a part hereof (the “Land”), and all of the Grantor’s right, title and interest in
and to rights appurtenant thereto, including easement rights; and




     (b) All buildings and improvements of every kind and description now or hereafter
erected or placed on the Land (the “Improvements”) and all fixtures now or hereafter owned
by the Grantor and attached to or installed in and used in connection with the aforesaid
Land and Improvements (collectively, the “Fixtures”) (hereinafter, the Land, the
Improvements and the Fixtures may be collectively referred to as the “Premises”).



     TO HAVE AND HOLD the same, together with all privileges, hereditaments, easements and
appurtenances thereunto belonging, subject to the Permitted Liens, to the Agent and the Agent’s
successors and assigns to secure the Indebtedness (hereinafter defined) and other obligations
herein recited; provided that, should (i) the Indebtedness (hereinafter defined) secured hereby be
paid according to the tenor and effect thereof when the same shall be due and payable and should
the Loan Parties timely and fully discharge their obligations secured hereby and satisfy the
obligations in full or (ii) the conditions set forth in the Credit Agreement for the release of
this Mortgage be fully satisfied (in the reasonable judgment of the Agent), the lien and security
interest of this Mortgage shall cease, terminate and be void and the Agent or its successor or
assign shall promptly cause a release of this Mortgage to be filed in the appropriate office; and
until such obligations are fully satisfied, it shall remain in full force and virtue.



     And, as additional security for said Indebtedness, subject to the Guarantee and Collateral
Agreement, the Grantor hereby unconditionally assigns to the Agent all the security deposits,
rents, issues, profits and revenues of the Premises from time to time accruing (the “Rents and
Profits”), which assignment constitutes a present, absolute and unconditional assignment and not an
assignment for



2









 





additional security only, reserving only the right to the Grantor to collect and apply the same as
the Grantor chooses as long as no Event of Default (as defined in Article III) has occurred and is
continuing.




     As additional collateral and further security for the Indebtedness, subject to the Guarantee
and Collateral Agreement, the Grantor does hereby assign to Agent and grants to Agent a security
interest in all of the right, title and the interest of the Grantor in and to any and all real
property leases and rental agreements (collectively, the “Leases”) with respect to the Premises or
any part thereof, and the Grantor agrees to execute and deliver to the Agent such additional
instruments, in form and substance reasonably satisfactory to the Agent, as may hereafter be
requested by the Agent to evidence and confirm said assignment; provided, however, that acceptance
of any such assignment shall not be construed to impose upon the Agent any obligation with respect
thereto.



     The Grantor and the Agent covenant, represent and agree as follows:



ARTICLE I




Indebtedness Secured



     1.1 Indebtedness. The Agent and the Lenders have agreed to establish a senior secured
credit facility in favor of the Borrower pursuant to the terms of the Credit Agreement. This
Mortgage is given to secure the payment and performance by the Grantor of (a) all obligations of
the Grantor under the Notes, the Credit Agreement, this Mortgage, the other Loan Documents and any
document made, delivered or given in connection with (i) any Interest Rate Protection Agreement,
Permitted Hedging Arrangement or Bank Products Agreement (as defined in the Guarantee and
Collateral Agreement) entered into with any Person who was at the time of entry into such agreement
a Lender or an affiliate of any Lender, (ii) any guaranty of the Borrower or any of its
Subsidiaries as to which any Secured Party (as defined in the Guarantee and Collateral Agreement)
is a beneficiary or (iii) the provision of cash management services by any Lender or an Affiliate
thereof to the Borrower or any Subsidiary thereof to any Secured Party (as defined in the Guarantee
and Collateral Agreement), howsoever evidenced, created, incurred or acquired, whether primary,
secondary, direct, contingent, or joint and several, (b) all obligations and liabilities of the
Grantor incurred in connection with the collection and enforcement of the foregoing to the extent
provided in the Credit Agreement and (c) all other Obligations (as defined in the Guarantee and
Collateral Agreement) of the Grantor (all of the foregoing, whether now existing or hereafter
arising, collectively, the “Indebtedness”).



     1.2 Future Advances. This Mortgage is given to secure the Indebtedness and the
repayment of the aforesaid obligations together with each advance of any Term Loan, any renewals or
extensions or modifications thereof upon the same or different terms or at the same or different
rate of interest and also to secure all future advances and readvances that may subsequently be
made to the Grantor or any other Loan Party by the Lenders evidenced by any promissory notes given
in connection with the aforesaid obligations, and all renewals, modifications, replacements and
extensions thereof. The lien of such future advances and re-advances shall relate back to the date
of this Mortgage.



ARTICLE II




Grantor’s Covenants, Representations and Agreements



     2.1 Title to Property. The Grantor has good title in fee simple to the Premises, and
the Premises are not subject to any Lien, except for Permitted Liens.



3









 





     2.2 Taxes and Fees; Maintenance of Premises. The Grantor agrees to comply with
Sections 6.3, 6.5(a), 6.5(b)(i), 7.3(a) and 10.5 of the
Credit Agreement to the extent applicable.



     2.3 Reimbursement. The Grantor agrees to comply with Section 6.5(b)(iii) of
the Credit Agreement to the extent applicable.



     2.4 Additional Documents. The Grantor agrees to comply with Section 6.9(d) of
the Credit Agreement to the extent applicable.



     2.5 Restrictions on Sale or Encumbrance. The Grantor agrees to comply with
Sections 7.3 and 7.6 of the Credit Agreement to the extent applicable.



     2.6 Fees and Expenses. The Grantor will promptly pay upon demand any and all
reasonable costs and expenses of the Agent, including, without limitation, reasonable attorneys’
fees actually incurred by the Agent, to the extent required under the Credit Agreement.



     2.7 Intentionally Omitted.



     2.8 Intentionally Omitted.



     2.9 Insurance.




     (a) Types Required. The Grantor shall maintain insurance for the Premises as
set forth in Section 6.5(a) of the Credit Agreement to the extent applicable.




     (b) Use of Proceeds. Insurance proceeds shall be applied or disbursed as set
forth in Sections 3.4(c) and 6.5(a) of the Credit Agreement to the extent
applicable.



     2.10 Eminent Domain. All proceeds or awards relating to condemnation or other taking
pursuant to the power of eminent domain shall be applied pursuant to Section 3.4(c) of the
Credit Agreement to the extent applicable.



     2.11 Releases and Waivers. The Grantor agrees that no release by the Agent of any
portion of the Premises, the Rents and Profits or the Leases, no subordination of lien, no
forbearance on the part of the Agent to collect on any Term Loan, or any part thereof, no waiver of
any right granted or remedy available to the Agent and no action taken or not taken by the Agent
shall, except to the extent expressly released, in any way have the effect of releasing the Grantor
from full responsibility to the Agent for the complete discharge of each and every of the Grantor’s
obligations hereunder.



     2.12 Intentionally Omitted.



     2.13 Compliance with Law. The Grantor agrees to comply with Section 6.4 of
the Credit Agreement to the extent applicable.



     2.14 Inspection. The Grantor agrees to comply with Section 6.6(a) of the
Credit Agreement to the extent applicable.



     2.15 Security Agreement.



     (a) This Mortgage is hereby made and declared to be a security agreement encumbering the
Fixtures, and Grantor grants to the Agent a security interest in the Fixtures. The Grantor grants
to the



4









 





Agent all of the rights and remedies of a secured party under the laws of the state in which the
Premises are located. A financing statement or statements reciting this Mortgage to be a security
agreement with respect to the Fixtures may be appropriately filed by the Agent.




     (b) The Grantor warrants that, as of the date hereof, the name and address of the “Debtor”
(which is the Grantor) are as set forth in the preamble of this Mortgage and a statement indicating
the types, or describing the items, of collateral is set forth hereinabove. Grantor warrants that
Grantor’s exact legal name is correctly set forth in the preamble of this Mortgage.



     (c) This Mortgage will be filed in the real property records.



     (d) The Grantor is a corporation organized under the laws of the State of                      and the
Grantor’s organizational identification number is                                         .



ARTICLE III




Events of Default



     An Event of Default shall exist and be continuing under the terms of this Mortgage upon the
existence and during the continuance of an Event of Default under the terms of the Credit
Agreement.



ARTICLE IV




Foreclosure



     4.1 Acceleration of Secured Indebtedness; Foreclosure. Upon the occurrence and during
the continuance of an Event of Default, the entire balance of the Indebtedness and any other
obligations due under the Loan Documents, including all accrued interest, shall become due and
payable to the extent such amounts become due and payable under the Credit Agreement. Provided an
Event of Default has occurred and is continuing, upon failure to pay the Indebtedness or reimburse
any other amounts due under the Loan Documents in full at any stated or accelerated maturity and in
addition to all other remedies available to the Agent at law or in equity, the Agent may foreclose
the lien of this Mortgage by judicial or non-judicial proceeding in a manner permitted by
applicable law. The Grantor hereby waives, to the fullest extent permitted by law, any statutory
right of redemption in connection with such foreclosure proceeding.



     4.2 Proceeds of Sale. The proceeds of any foreclosure sale of the Premises, or any
part thereof, will be distributed and applied in accordance with the terms and conditions of the
Credit Agreement (subject to any applicable provisions of applicable law).



ARTICLE V




Additional Rights and Remedies of the Agent



     5.1 Rights Upon an Event of Default. Upon the occurrence and during the continuance
of an Event of Default, the Agent, immediately and without additional notice and without liability
therefor to the Grantor, except for gross negligence, willful misconduct or unlawful conduct, may
do or cause to be done any or all of the following to the extent permitted by applicable law, and
subject to the terms of the Intercreditor Agreement: (a) take physical possession of the Premises;
(b) exercise its right to collect the Rents and Profits; (c) enter into contracts for the
completion, repair and maintenance of the Improvements



5









 





thereon; (d) expend Term Loan funds and any rents, income and profits derived from the Premises for
the payment of any taxes, insurance premiums, assessments and charges for completion, repair and
maintenance of the Improvements, preservation of the lien of this Mortgage and satisfaction and
fulfillment of any liabilities or obligations of the Grantor arising out of or in any way connected
with the Premises whether or not such liabilities and obligations in any way affect, or may affect,
the lien of this Mortgage; (e) enter into leases demising the Premises or any part thereof; (f)
take such steps to protect and enforce the specific performance of any covenant, condition or
agreement in the Notes, this Mortgage, the Credit Agreement or the other Loan Documents, or to aid
the execution of any power herein granted; and (g) generally, supervise, manage, and contract with
reference to the Premises as if the Agent were equitable owner of the Premises. Notwithstanding
the occurrence of an Event of Default, the Agent shall continue to have the right to pay money,
whether or not Term Loan funds, for the purposes described in Sections 2.2 and 2.6
hereof, and all such sums and interest thereon shall be secured hereby. The Grantor also agrees
that any of the foregoing rights and remedies of the Agent may be exercised at any time during the
continuance of an Event of Default independently of the exercise of any other such rights and
remedies, and the Agent may continue to exercise any or all such rights and remedies until (i) the
Event(s) of Default are cured, (ii) foreclosure and the conveyance of the Premises to the high
bidder, or (iii) the Term Loans and any other amounts then due and owing under the Credit Agreement
to any Lender or the Agent are paid in full.




     5.2 Appointment of Receiver. Upon the occurrence and during the continuance of an
Event of Default, subject to the terms of the Intercreditor Agreement, the Agent shall be entitled,
without additional notice and without regard to the adequacy of any security for the Indebtedness
secured hereby, whether the same shall then be occupied as a homestead or not, or the solvency of
any party bound for its payment, to make application for the appointment of a receiver to take
possession of and to operate the Premises, and to collect the rents, issues, profits, and income
thereof, all expenses of which shall be added to the Indebtedness and secured hereby. The receiver
shall have all the rights and powers provided for under the laws of the state in which the Premises
are located, including without limitation, the power to execute leases, and the power to collect
the rents, sales proceeds, issues, profits and proceeds of the Premises during the pendency of such
foreclosure suit, as well as during any further times when the Grantor, its successors or assigns,
except for the intervention of such receiver, would be entitled to collect such rents, sales
proceeds, issues, proceeds and profits, and all other powers which may be necessary or are usual in
such cases for the protection, possession, control, management and operation of the Premises during
the whole of said period. Receiver’s fees, reasonable attorneys’ fees and costs incurred in
connection with the appointment of a receiver pursuant to this Section 5.2 shall be secured by this
Mortgage. Notwithstanding the appointment of any receiver, trustee or other custodian, the Agent
shall be entitled to retain possession and control of any cash or other instruments at the time
held by or payable or deliverable under the terms of the Mortgage to the Agent to the fullest
extent permitted by law.



     5.3 Waivers. No waiver of a prior Event of Default shall operate to waive any
subsequent Event(s) of Default. All remedies provided in this Mortgage, the Notes, the Credit
Agreement or any of the other Loan Documents are cumulative and may, at the election of the Agent,
be exercised alternatively, successively, or in any manner and are in addition to any other rights
provided by law.



     5.4 Delivery of Possession After Foreclosure. In the event there is a foreclosure
sale hereunder and at the time of such sale, the Grantor or the Grantor’s successors or assigns are
occupying or using the Premises, or any part thereof, each and all immediately shall become the
tenant of the purchaser at such sale, which tenancy shall be a tenancy from day to day, terminable
at the will of either landlord or tenant, at a reasonable rental per day based upon the value of
the property occupied, such rental to be due daily to the purchaser; and to the extent permitted by
applicable law, the purchaser at such sale, notwithstanding any language herein apparently to the
contrary, shall have the sole option to demand possession immediately following the sale or to
permit the occupants to remain as tenants at will. In the



6









 





event the tenant fails to surrender possession of said property upon demand, the purchaser shall be
entitled to institute and maintain a summary action for possession of the property (such as an
action for forcible detainer) in any court having jurisdiction.




     5.5 Marshalling. The Grantor hereby waives, in the event of foreclosure of this
Mortgage or the enforcement by the Agent of any other rights and remedies hereunder, any right
otherwise available in respect to marshalling of assets which secure any Term Loan and any other
indebtedness secured hereby or to require the Agent to pursue its remedies against any other such
assets.



     5.6 Protection of Premises. Upon the occurrence and during the continuance of an
Event of Default, the Agent may take such actions, including, but not limited to disbursements of
such sums, as the Agent in its sole but reasonable discretion deems necessary to protect the
Agent’s interest in the Premises.



ARTICLE VI




General Conditions



     6.1 Terms. The singular used herein shall be deemed to include the plural; the
masculine deemed to include the feminine and neuter; and the named parties deemed to include their
successors and assigns to the extent permitted under the Credit Agreement. The word “person” shall
include any individual, partnership, corporation, limited liability company, business trust, joint
stock company, trust, unincorporated association, joint venture, Governmental Authority or other
entity of whatever nature, and the word “Premises” shall include any portion of the Premises or
interest therein. The words “include”, “includes” and “including” shall be deemed to be followed
by the phrase without limitation.



     6.2 Notices. All notices, requests and other communications shall be given in
accordance with Section 10.2 of the Credit Agreement.



     6.3 Severability. If any provision of this Mortgage is determined to be illegal,
invalid or unenforceable, such provision shall be fully severable and the remaining provisions
shall remain in full force and effect and shall be construed without giving effect to the illegal,
invalid or unenforceable provisions.



     6.4 Headings. The captions and headings herein are inserted only as a matter of
convenience and for reference and in no way define, limit, or describe the scope of this Mortgage
nor the intent of any provision hereof.



     6.5 Intercreditor Agreement. Notwithstanding anything to the contrary
contained herein, the lien and security interest granted to the Agent pursuant to this Mortgage and
the exercise of any right or remedy by the Agent hereunder are subject to the provisions of the
Intercreditor Agreement.



     6.6 Conflicting Terms.


          (a) In the event of any conflict between the terms and provisions of the Intercreditor
Agreement and the terms and provisions of this Mortgage, the terms and provisions of the
Intercreditor Agreement shall control and supersede the provisions of this Mortgage with respect to
such conflicts other than with respect to Section 6.7.


          (b) In the event of any conflict between the terms and provisions of the Credit Agreement and
the terms and provisions of this Mortgage, the terms and provisions of the Credit



7









 








Agreement shall control and supersede the provisions of this Mortgage with respect to such
conflicts other than with respect to Section 6.7.




     6.7 Governing Law. This Mortgage shall be governed by and construed in
accordance with the internal law of the state in which the Premises are located.



     6.8 Application of the Foreclosure Law. If any provision in this Mortgage
shall be inconsistent with any provision of the foreclosure laws of the state in which the Premises
are located, the provisions of such laws shall take precedence over the provisions of this
Mortgage, but shall not invalidate or render unenforceable any other provision of this Mortgage
that can be construed in a manner consistent with such laws.



     6.9 Written Agreement. This Mortgage may not be amended, supplemented or
otherwise modified except in accordance with Section 10.1 of the Credit Agreement.



     6.10 Waiver of Jury Trial. Section 10.16 of the Credit Agreement is
hereby incorporated by reference.



     6.11 Request for Notice. The Grantor requests a copy of any statutory notice
of default and a copy of any statutory notice of sale hereunder be mailed to the Grantor at the
address specified in Section 6.2 of this Mortgage.



     6.12 Counterparts. This Mortgage may be executed by one or more of the
parties on any number of separate counterparts, and all of such counterparts taken together shall
be deemed to constitute one and the same instrument.



     6.13 Intentionally Omitted.



     6.14 Release. If any of the Premises shall be sold, transferred or otherwise
disposed of by the Grantor in a transaction permitted by the Credit Agreement, then the Agent, at
the request of the Grantor, shall execute and deliver to the Grantor all releases or other
documents reasonably necessary or desirable for the release of the Liens created hereby on the
Premises. The Grantor shall deliver to the Agent prior to the date of the proposed release, a
written request for release identifying the sale or other disposition in reasonable detail,
together with a certification by the Grantor stating that such transaction is in compliance with
the Credit Agreement and the other Loan Documents.



     6. 15 State Specific Provisions. In the event of any inconsistencies between
this Section 6.15 and any of the other terms and provisions of this Mortgage, the terms and
provisions of this Section 6.15 shall control and be binding.



      




                                          
                        
                        
                        
                        
                        
                        
                        
                        
                        
                        
                        
                        
                        
        .



     6.16 Amendment and Restatement of Original Mortgage. The Grantor and the
Agent acknowledge and agree that this Mortgage is executed for the purpose of amending and
restating the Original Mortgage and is not intended to extinguish, release or otherwise discharge
the Grantor’s obligations under the Original Mortgage and is not intended to be a novation of the
Grantor’s obligations under the Original Mortgage.



[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]






8









 








     IN WITNESS WHEREOF, the Grantor and the Agent have executed this Mortgage as of the above
written date.



	 	 	 	 	 	 	 
	 	 	GRANTOR:	 	 
	 
	 	 	 	 	 	 
	 	 	AGENT:	 	 
	 
	 	 	 	 	 	 
	 	 	WACHOVIA BANK, NATIONAL ASSOCIATION,

a national banking association	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	Name:
	 	 

	 	 
	 

	 	Title:	 	 	 	 
















 








[ADD STATE NOTARY FORMS FOR GRANTOR AND AGENT]
















 








Exhibit A




[Legal Description to be Attached]



















 





EXHIBIT D TO

AMENDED AND RESTATED CREDIT AGREEMENT




 





INTERCREDITOR AGREEMENT




among



NCI BUILDING SYSTEMS, INC.,

as a Borrower or Guarantor,



CERTAIN DOMESTIC SUBSIDIARIES OF NCI BUILDING SYSTEMS, INC.,

as Borrowers or Guarantors



and



WELLS FARGO FOOTHILL, LLC

as the Working Capital Agent and the Working Capital Administrative Agent



and



WACHOVIA BANK, NATIONAL ASSOCIATION,

as the Term Loan Agent and the Term Loan Administrative Agent



and



WELLS FARGO BANK, NATIONAL ASSOCIATION

as the Control Agent



Dated as of October 20, 2009




 










 









 








TABLE OF CONTENTS




	 	 	 	 	 
	SECTION 1 Definitions
	 	 	3	 
	1.1 Defined Terms
	 	 	3	 
	1.2 Terms Generally
	 	 	18	 
	 
	 	 	 	 
	SECTION 2 Lien Priorities
	 	 	19	 
	2.1 Scope of Collateral
	 	 	19	 
	2.2 Priority
	 	 	19	 
	2.3 Failure to Perfect
	 	 	21	 
	2.4 Prohibition on Contesting Liens
	 	 	22	 
	2.5 No New Liens
	 	 	22	 
	2.6 Similar Liens and Agreements
	 	 	23	 
	 
	 	 	 	 
	SECTION 3 Enforcement
	 	 	24	 
	3.1 Enforcement
	 	 	24	 
	3.2 Actions Upon Breach
	 	 	30	 
	 
	 	 	 	 
	SECTION 4 Payments
	 	 	30	 
	4.1 Application of Proceeds
	 	 	30	 
	4.2 Payment Turnover
	 	 	32	 
	 
	 	 	 	 
	SECTION 5 Other Agreements
	 	 	32	 
	5.1 Releases
	 	 	32	 
	5.2 Insurance
	 	 	37	 
	5.3 Control Agent for Perfection
	 	 	38	 
	5.4 Access to Term Loan Priority Collateral
	 	 	40	 
	5.5 Consent to Limited License
	 	 	41	 
	 
	 	 	 	 
	SECTION 6 Insolvency or Liquidation Proceedings
	 	 	42	 
	6.1 Use of Cash Collateral and Financing Issues
	 	 	42	 
	6.2 Sale Issues
	 	 	43	 
	6.3 Relief from the Automatic Stay
	 	 	43	 
	6.4 Adequate Protection
	 	 	43	 
	6.5 Separate Grants of Security and Separate Classification
	 	 	44	 
	6.6 Post-Petition Claims
	 	 	45	 
	6.7 Avoidance Issues
	 	 	45	 
	6.8 Expense Claims
	 	 	45	 
	6.9 Effectiveness in Insolvency or Liquidation Proceedings
	 	 	45	 
	 
	 	 	 	 
	SECTION 7
Reliance; Waivers; Etc.
	 	 	46	 
	7.1 Non-Reliance
	 	 	46	 
	7.2 No Warranties or Liability
	 	 	47	 
	7.3 No Waiver of Lien Priorities
	 	 	48	 
	7.4 Obligations Unconditional
	 	 	50	 
	7.5 Certain Notices
	 	 	50	 
	 
	 	 	 	 
	SECTION 8 Miscellaneous
	 	 	51	 
	8.1 Conflicts
	 	 	51	 






 









 






	 	 	 	 	 
	8.2 Effectiveness; Continuing Nature of this Agreement; Severability
	 	 	51	 
	8.3 Amendments; Waivers
	 	 	51	 
	8.4 Information Concerning Financial Condition of Company and its Subsidiaries
	 	 	52	 
	8.5 Subrogation
	 	 	52	 
	8.6 [Reserved]
	 	 	52	 
	8.7 SUBMISSION TO JURISDICTION; WAIVER OF JURY TRIAL
	 	 	53	 
	8.8 Notices
	 	 	54	 
	8.9 Further Assurances
	 	 	54	 
	8.10 Designation of Additional Indebtedness; Joinder of Additional Agents
	 	 	54	 
	8.11 Binding on Successors and Assigns
	 	 	55	 
	8.12 Specific Performance
	 	 	55	 
	8.13 Headings
	 	 	55	 
	8.14 Counterparts
	 	 	56	 
	8.15 Authorization
	 	 	56	 
	8.16 No Third Party Beneficiaries
	 	 	56	 
	8.17 Provisions Solely to Define Relative Rights
	 	 	56	 






 









 





     THIS INTERCREDITOR AGREEMENT (the “Agreement”), dated as of October 20, 2009, is
entered into by and among NCI BUILDING SYSTEMS, INC., a Delaware corporation (the
“Company”), those certain Domestic Subsidiaries of the Company from time to time party to
the Working Capital Credit Documents, the Term Loan Credit Documents or any Additional Documents as
borrowers or guarantors (together, with the Company, the “Grantors”), WACHOVIA BANK,
NATIONAL ASSOCIATION, in its capacity as administrative agent for the Term Loan Lenders referenced
below (in such capacity, together with its successors and assigns in such capacity, the “Term
Loan Administrative Agent”) and its capacity as collateral agent for the Term Loan Lenders
referenced below (in such capacity, together with its successors and assigns in such capacity, the
“Term Loan Agent”), WELLS FARGO FOOTHILL, LLC, in its capacity as administrative agent for
the Working Capital Lenders referenced below (in such capacity, the “Working Capital
Administrative Agent”) and its capacity as collateral agent for the Working Capital Lenders
referenced below (in such capacity, together with its successors and assigns in such capacity, the
“Working Capital Agent”) and WELLS FARGO BANK, NATIONAL ASSOCIATION, in its capacity as
control agent for the Working Capital Agent, the Term Loan Agent and any Additional Agent (in such
capacity, together with its successors and assigns in such capacity, the “Control Agent”).



RECITALS:




     WHEREAS, certain of the Grantors, the financial institutions from time to time party thereto
as lenders (collectively, the “Term Loan Lenders”), the Term Loan Administrative Agent and
the Term Loan Agent are parties to that certain Amended and Restated Credit Agreement dated as of
the date hereof (as amended, restated, supplemented or modified from time to time, the “Initial
Term Loan Credit Agreement”), pursuant to which the Term Loan Lenders shall make a term loan
credit facility available to the Company secured by a first priority security interest in certain
assets of the Grantors and a second priority security interest in certain other assets of such
Grantors;



     WHEREAS, the Grantors, the financial institutions from time to time party thereto as lenders
(collectively, the “Working Capital Lenders”), the Working Capital Administrative Agent and
the Working Capital Agent are parties to that certain Loan and Security Agreement, dated as of the
date hereof (as amended, restated, supplemented or modified from time to time, the “Initial
Working Capital Credit Agreement”), pursuant to which the Working Capital Lenders shall make a
revolving credit facility available to the Grantors that are borrowers thereunder secured by a
first priority security interest in certain assets of the Grantors and a second priority security
interest in certain other assets of the Grantors;



     WHEREAS, pursuant to this Agreement, the Company may, from time to time, designate certain
additional Indebtedness as “Additional Indebtedness” by executing and delivering the Additional
Indebtedness Designation and by complying with the procedures set forth in Section 8.10 hereof, and
the holders of such Additional Indebtedness and any other applicable Additional Claimholder shall
thereafter constitute Additional Claimholder, and any Additional Agent (as hereinafter defined) for
any such Additional Claimholder shall thereafter constitute an Additional Agent, for all purposes
under this Agreement; and



     WHEREAS, the Working Capital Agent, for and on behalf of the Working Capital Claimholders, and
the Term Loan Agent, for and on behalf of the Term Loan Claimholders, desire to enter into this
Agreement to (i) confirm the relative priorities of their respective security interests in the
assets and properties of the Grantors, and (ii) provide for the orderly sharing among them, in
accordance with such priorities, of the proceeds of such assets and properties upon any foreclosure
thereon or other disposition thereof.



2









 





     NOW THEREFORE, in consideration of the foregoing and the mutual covenants herein contained and
other good and valuable consideration, the existence and sufficiency of which are hereby
acknowledged, the parties hereto, intending to be legally bound, hereby agree as follows:



SECTION 1




DEFINITIONS



     1.1 Defined Terms. As used in the Agreement, the following terms shall have the following
meanings:



     “Account” means, as to each Grantor, all present and future rights of such Person to payment
of a monetary obligation, whether or not earned by performance, which is not evidenced by chattel
paper or an instrument, (a) for property that has been or is to be sold, leased, licensed,
assigned, or otherwise disposed of, (b) for services rendered or to be rendered, (c) for a
secondary obligation incurred or to be incurred, or (d) arising out of the use of a credit or
charge card or information contained on or for use with the card.



     “Additional Agent” means any one or more agents, trustees or other representatives for or of
any one or more Additional Credit Facility Creditors, and shall include any replacement thereof or
successor thereto, as well as any Person designated as an “Agent” under any Additional Credit
Facility.



     “Additional Bank Products Affiliate” means any Additional Credit Facility Creditor or any
Affiliate of any Additional Credit Facility Creditor that has entered into a Bank Products
Agreement with a Grantor with the obligations of such Grantor thereunder being secured by one or
more Additional Collateral Documents.



     “Additional Borrower” means any Grantor that incurs or issues Additional Indebtedness.



     “Additional Cap Amount” has the meaning set forth in the definition of Additional Obligations.



     “Additional Claimholders” means, at any relevant time, the holder or holders of Additional
Obligations at such time, including without limitation any Additional Credit Facility Creditors,
any Additional Bank Products Affiliate and each Additional Agent, and all successors, assigns,
transferees and replacements thereof, as well as any Person designated as an “Additional
Claimholder” under any Additional Credit Facility; and with respect to any Additional Agent, shall
mean the Additional Claimholders for which such Additional Agent acts as Additional Agent.



     “Additional Collateral” means all of the assets and property of any Grantor, whether real,
personal or mixed, with respect to which a Lien is granted as security for any Additional
Obligations



     “Additional Collateral Disposition” has the meaning set forth in Section 5.1(b)(ii).



     “Additional Collateral Documents” means all “Security Documents” as defined in any Additional
Credit Facility, and in any event shall include all security agreements, mortgages, deeds of trust,
pledges and other collateral documents executed and delivered in connection with any Additional
Credit Facility, and any other agreement, document or instrument pursuant to which a Lien is
granted securing any Additional Obligations or under which rights or remedies with respect to such
Liens are governed, in each case as the same may be amended, restated, modified or supplemented
from time to time.



3









 





     “Additional Collateral Exercise of Remedies” has the meaning set forth in
Section 5.1(b)(i).



     “Additional Credit Facilities” means any one or more agreements, instruments and documents
under which any Additional Indebtedness is or may be incurred, including without limitation any
credit agreements, loan agreements, indentures or other financing agreements, in each case as the
same may be amended, modified or supplemented from time to time, together with any other agreement
extending the maturity of, consolidating, restructuring, refunding, replacing or refinancing all or
any portion of the Additional Obligations, whether by the same or any other lender, debtholder or
group of lenders or debtholders, or the same or any other agent, trustee or representative
therefor, and whether or not increasing the amount of any Indebtedness that may be incurred
thereunder.



     “Additional Credit Facility Creditors” means one or more holders of Additional Indebtedness
(or commitments therefor) that is or may be incurred under one or more Additional Credit
Facilities.



     “Additional Documents” means any Additional Credit Facilities, any Additional Guarantees, any
Additional Collateral Documents, any Bank Products Agreements between any Grantor and any
Additional Bank Products Affiliate, those other ancillary agreements as to which any Additional
Claimholder is a party or a beneficiary and all other agreements, instruments, documents and
certificates, now or hereafter executed by or on behalf of any Grantor or any of its respective
Subsidiaries or Affiliates and delivered to any Additional Agent in connection with any of the
foregoing or any Additional Credit Facility, and any other document or instrument executed or
delivered at any time in connection with any Additional Obligations, including any intercreditor or
joinder agreement among holders of Additional Obligations or among holders of Term Loan Obligations
and Additional Obligations, in each case as the same may be amended, modified or supplemented from
time to time.



     “Additional Effective Date” has the meaning set forth in Section 8.10(b).



     “Additional Guarantees” means any one or more guarantees of any Additional Obligations of any
Grantor by any other Grantor in favor of any Additional Claimholder.



     “Additional Indebtedness” means any Additional Specified Indebtedness that (1) is permitted to
be secured by a Lien (as defined below) on Collateral by




	(a)	 	prior to the Discharge of Working Capital Obligations, Section 10.2 of the Initial Working
Capital Credit Agreement (if the Initial Working Capital Credit Agreement is then in effect)
or the corresponding negative covenant restricting Liens contained in any other Working
Capital Credit Agreement then in effect if the Initial Working Capital Credit Agreement is not
then in effect (which covenant is designated in such Working Capital Credit Agreement as
applicable for purposes of this definition),






	(b)	 	prior to the Discharge of Term Loan Obligations, Section 7.3 of the Initial Term Loan Credit
Agreement (if the Initial Term Loan Credit Agreement is then in effect) or the corresponding
negative covenant restricting Liens contained in any other Term Loan Credit Agreement then in
effect (which covenant is designated in such Term Loan Credit Agreement as applicable for
purposes of this definition) and






	(c)	 	prior to the Discharge of Additional Obligations, any negative covenant restricting Liens
contained in any applicable Additional Credit Facility then in effect (which covenant is
designated in such Additional Credit Facility as applicable for purposes of this definition)
and




4









 










(2) is designated as “Additional Indebtedness” by the Company pursuant to an Additional
Indebtedness Designation and in compliance with the procedures set forth in Section 8.10.



As used in this definition of “Additional Indebtedness”, the term “Lien” shall have the meaning set
forth (x) for purposes of the preceding clause (1)(a), prior to the Discharge of Working Capital
Obligations, in Section 1 of the Initial Working Capital Credit Agreement (if the Initial Working
Capital Credit Agreement is then in effect), or in any other Working Capital Credit Agreement then
in effect (if the Initial Working Capital Credit Agreement is not then in effect), (y) for purposes
of the preceding clause (1)(b), prior to the Discharge of Term Loan Obligations, in Section 1.1 of
the Initial Term Loan Credit Agreement (if the Initial Term Loan Credit Agreement is then in
effect), or in any other Term Loan Credit Agreement then in effect, and (z) for purposes of the
preceding clause (1)(c), prior to the Discharge of Additional Obligations, in the applicable
Additional Credit Facility then in effect.




     “Additional Indebtedness Designation” means a certificate of the Company with respect to
Additional Indebtedness substantially in the form of Exhibit A attached hereto



     “Additional Indebtedness Joinder” means a joinder agreement executed by one or more Additional
Agents in respect of the Additional Indebtedness subject to an Additional Indebtedness Designation,
on behalf of one or more Additional Creditors in respect of such Additional Indebtedness,
substantially in the form of Exhibit B attached hereto



     “Additional Specified Indebtedness” means any Indebtedness that is or may from time to time be
incurred by any Grantor in compliance with:




	(a)	 	prior to the Discharge of Working Capital Obligations, Section 10.3 of the Initial Working
Capital Credit Agreement (if the Initial Working Capital Credit Agreement is then in effect)
or the corresponding negative covenant restricting Indebtedness contained in any other Working
Capital Credit Agreement then in effect if the Initial Working Capital Credit Agreement is not
then in effect (which covenant is designated in such Working Capital Credit Agreement as
applicable for purposes of this definition),






	(b)	 	prior to the Discharge of Term Loan Obligations, Section 7.2 of the Term Credit Agreement (if
the Initial Term Loan Credit Agreement is then in effect) or the corresponding negative
covenant restricting Indebtedness contained in any other Term Loan Credit Agreement then in
effect (which covenant is designated in such Term Loan Credit Agreement as applicable for
purposes of this definition) and






	(c)	 	any negative covenant restricting Indebtedness contained in any Additional Credit Facility
then in effect (which covenant is designated in such Additional Credit Facility as applicable
for purposes of this definition).




As used in this definition of “Additional Specified Indebtedness”, the term “Indebtedness” shall
have the meaning set forth (x) for purposes of the preceding clause (a), prior to the Discharge of
Working Capital Obligations, in Section 1 of the Initial Working Capital Credit Agreement (if the
Initial Working Capital Credit Agreement is then in effect), or in any other Working Capital Credit
Agreement then in effect (if the Initial Working Capital Credit Agreement is not then in effect),
(y) for purposes of the preceding clause (b), prior to the Discharge of Term Loan Obligations, in
Section 1.1 of the Initial Term Loan Credit Agreement (if the Initial Term Loan Credit Agreement is
then in effect), or in any other Term Loan Credit Agreement then in effect, and (z) for purposes of
the preceding clause (c), prior to the Discharge of Additional Obligations, in the applicable
Additional Credit Facility then in effect.






5









 








     “Additional Obligations” means any and all loans and all other obligations, liabilities and
indebtedness of every kind, nature and description owing by any Grantor whether now existing or
hereafter arising, whether arising before, during or after the commencement of any case with
respect to any Grantor under the Bankruptcy Code or any other Insolvency or Liquidation Proceeding
under (i) any Additional Credit Facilities, (ii) any other Additional Documents and (iii) any Bank
Products Agreements with any Additional Agent, any Additional Credit Facility Creditor or any
Affiliate of any Additional Credit Facility Creditor; provided that the aggregate principal
amount of, without duplication, any term loans, bonds, debentures, notes or similar instruments
(excluding, in any event, any Bank Product Debt) issued under any Additional Credit Facility in
excess of the amount thereof constituting Additional Specified Indebtedness (the “Additional Debt
Cap Amount”), shall not constitute Additional Obligations for purposes of this Agreement.
“Additional Obligations” shall include (x) all interest accrued or accruing (or which would, absent
commencement of an Insolvency or Liquidation Proceeding, accrue) in accordance with the rate
specified in the relevant Additional Document and (y) all fees, costs and charges incurred in
connection with the Additional Documents and provided for thereunder, in the case of each of clause
(x) and clause (y) whether before or after commencement of an Insolvency or Liquidation Proceeding
and irrespective of whether any claim for such interest, fees, costs or charges is allowed as a
claim in such Insolvency or Liquidation Proceeding.



     “Affiliate” means, with respect to a specified Person, any other Person which directly or
indirectly, through one or more intermediaries, controls or is controlled by or is under common
control with such Person, and without limiting the generality of the foregoing, includes (a) any
Person which beneficially owns or holds ten (10%) percent or more of any class of Voting Stock of
such Person or other equity interests in such Person, (b) any Person of which such Person
beneficially owns or holds ten (10%) percent or more of any class of Voting Stock or in which such
Person beneficially owns or holds ten (10%) percent or more of the equity interests and (c) any
director or executive officer of such Person. For the purposes of this definition, the term
“control” (including with correlative meanings, the terms “controlled by” and “under common control
with”), as used with respect to any Person, means the possession, directly or indirectly, of the
power to direct or cause the direction of the management and policies of such Person, whether
through the ownership of Voting Stock, by agreement or otherwise.



     “Agent” means the Working Capital Agent, the Term Loan Agent or any Additional Agent, as
applicable.



     “Agent Parties” means (i) prior to the Discharge of Term Loan Obligations, the Term Loan
Agent, (ii) prior to the Discharge of Working Capital Obligations, the Working Capital Agent and
(iii) prior to the Discharge of Additional Obligations, any Additional Agent.



     “Aggregate Principal Exposure” means the aggregate principal amount of, without duplication,
any issued but undrawn letters of credit, any reimbursement obligations for drawn letters of
credit, term loans, revolving loans, bonds, debentures, notes or similar instruments (excluding, in
any event, Bank Product Debt) issued under the Working Capital Credit Documents, the Term Loan
Credit Documents, or any Additional Credit Facility and related applicable Additional Documents, as
applicable.



     “Agreement” means this Agreement, as amended, renewed, extended, supplemented or otherwise
modified from time to time in accordance with the terms hereof.



     “Bank Products Agreement” means (x) any agreement pursuant to which a bank or other financial
institution agrees to provide any of the following products, services or facilities extended to any
Grantor by any Claimholder or any of its Affiliates: (a) Cash Management Services; (b) commercial



6









 




credit card and merchant card services; and (c) other banking products or services as may be
requested by any Grantor, other than letters of credit, and (y) any interest rate, foreign
currency, commodity or equity swap, collar, cap, floor or forward rate agreement, or other
agreement or arrangement designed to protect against fluctuations in interest rates or currency,
commodity or equity values (including, without limitation, any option with respect to any of the
foregoing and any combination of the foregoing agreements or arrangements), entered into between
any Grantor and any Claimholder or any of its Affiliates, and any confirmation executed in
connection with any such agreement or arrangement.




     “Bank Product Debt” of any Person means any obligation of such Person pursuant to any Bank
Products Agreement.



     “Bankruptcy Code” means the Bankruptcy Code in Title 11 of the United States Code, as amended,
modified, succeeded or replaced from time to time.



     “Bankruptcy Law” means the Bankruptcy Code, and all other liquidation, conservatorship,
bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership,
insolvency, reorganization, or similar debtor relief Laws of the United States or other applicable
jurisdictions from time to time in effect and affecting the rights of creditors generally.



     “Business Day” means any day other than a Saturday, Sunday, or other day on which commercial
banks are authorized or required to close under the laws of the State of New York, and a day on
which the Control Agent is open for the transaction of business.



     “Capital Lease” means, as applied to any Person, any lease of (or any agreement conveying the
right to use) any property (whether real, personal or mixed) by such Person as lessee which in
accordance with GAAP, is required to be reflected as a liability on the balance sheet of such
Person.



     “Capital Stock” means, with respect to any Person, any and all shares, interests,
participations or other equivalents (however designated) of such Person’s capital stock or
partnership, limited liability company or other equity interests at any time outstanding, and any
and all rights, warrants or options exchangeable for or convertible into such capital stock or
other interests (but excluding any debt security that is exchangeable for or convertible into such
capital stock).



     “Cash Management Services” means any services provided from time to time to the Grantors in
connection with operating, collections, payroll, trust, or other depository or disbursement
accounts or otherwise consisting of treasury or cash management services, including automated
clearinghouse, controlled disbursement, depository, electronic funds transfer, information
reporting, lockbox, stop payment, return item, netting, overdraft and/or wire transfer services.



     “Certificated Security” has the meaning set forth in the UCC.




	 	 	“Chattel Paper” has the meaning set forth in the UCC.





     “Claimholders” means the Term Loan Claimholders, the Working Capital Claimholders and any
Additional Claimholders.



     “Collateral” means all of the assets and property of any Grantor, whether tangible or
intangible, constituting both Working Capital Collateral and Term Loan Collateral.



     “Commercial Tort Claim” has the meaning set forth in the UCC.



7









 





     “Company” has the meaning set forth in the introductory paragraph of this Agreement.



     “Control Collateral” means any Collateral consisting of any Certificated Security, Instrument,
Investment Property, Deposit Accounts and cash.



     “Controlled Account” means those certain Deposit Accounts of any Grantor subject to Liens
under the terms of the Working Capital Collateral Documents and the Term Loan Collateral Documents.



     “Credit Agreement” means the Term Loan Credit Agreement, the Working Capital Credit Agreement
or any Additional Credit Facility, as applicable.



     “Credit Documents” means the Term Loan Credit Documents, the Working Capital Credit Documents
and any Additional Documents.



     “Customer Contracts” means all contracts for the provision of goods or services by any Grantor
to any Person or by any Person to any Grantor.



     “Deposit Accounts” has the meaning set forth in the UCC.



     “DIP Financing” has the meaning set forth in Section 6.1.



     “Discharge of Additional Obligations” means, if any Indebtedness shall at any time have been
incurred under any Additional Credit Facility, (i) payment in full in cash of the principal of and
interest (including interest accruing on or after the commencement of any Insolvency or Liquidation
Proceeding, whether or not a claim for such interest is, or would be, allowed in whole or in part
in such Insolvency or Liquidation Proceeding) and premium, if any, on all Indebtedness outstanding
under all Additional Credit Facilities and any other Additional Documents and termination of all
commitments to lend or otherwise extend credit (if any) under all Additional Credit Facilities and
other Additional Documents, other than pursuant to any Refinancing through the incurrence of
Indebtedness designated as Additional Indebtedness by the Company, and (ii) payment in full in cash
of all other Additional Obligations that are due and payable or otherwise accrued and owing at or
prior to the time such principal and interest are paid (including legal fees and other expenses,
costs or charges accruing on or after the commencement of any Insolvency or Liquidation Proceeding,
whether or not a claim for such fees, expenses, costs or charges is, or would be, allowed in such
Insolvency or Liquidation Proceeding), and (iii) termination or cash collateralization (in an
amount reasonably satisfactory to the Term Loan Administrative Agent) of any Bank Products
Agreement (to the extent obligations under such Bank Products Agreement constitute applicable
Additional Obligations) and the payment in full in cash of all Bank Product Debt (to the extent
such Bank Product Debt constitutes Additional Obligations), subject, with respect to the aggregate
principal amount of the relevant items set forth in the foregoing clauses (i) and (ii), to the
limitations set forth in the definition of Additional Cap Amount.



     “Discharge of Obligations” means a Discharge of Term Loan Obligations, a Discharge of Working
Capital Obligations, or a Discharge of Additional Obligations, as applicable.



     “Discharge of Term Loan Obligations” means (i) payment in full in cash of the principal of and
interest (including interest accruing on or after the commencement of any Insolvency or Liquidation
Proceeding, whether or not a claim for such interest is, or would be, allowed in whole or in part
in such Insolvency or Liquidation Proceeding) and premium, if any, on all Indebtedness outstanding
under the Term Loan Credit Documents and termination of all commitments to lend or otherwise extend
credit (if



8









 




any) under the Term Loan Credit Documents, other than pursuant to any Refinancing under a Term
Loan Credit Agreement designated as a Term Loan Credit Agreement by the Company, and (ii) payment
in full in cash of all other Term Loan Obligations that are due and payable or otherwise accrued
and owing at or prior to the time such principal and interest are paid (including legal fees and
other expenses, costs or charges accruing on or after the commencement of any Insolvency or
Liquidation Proceeding, whether or not a claim for such fees, expenses, costs or charges is, or
would be, allowed in such Insolvency or Liquidation Proceeding), and (iii) termination or cash
collateralization (in an amount reasonably satisfactory to the Term Loan Administrative Agent) of
any Bank Products Agreement (to the extent obligations under such Bank Products Agreement
constitute Term Loan Obligations) and the payment in full in cash of all Bank Product Debt (to the
extent such Bank Product Debt constitutes Term Loan Obligations), subject, with respect to the
aggregate principal amount of the relevant items set forth in the foregoing clauses (i) and (ii),
to the limitations set forth in the definition of TL Cap Amount.




     “Discharge of Working Capital Obligations” means (i) payment in full in cash of the principal
of and interest (including interest accruing on or after the commencement of any Insolvency or
Liquidation Proceeding, whether or not a claim for such interest is, or would be, allowed in whole
or in part in such Insolvency or Liquidation Proceeding) and premium, if any, on all Indebtedness
outstanding under the Working Capital Credit Documents and termination of all commitments to lend
or otherwise extend credit under the Working Capital Credit Documents, other than pursuant to any
Refinancing under a Working Capital Credit Agreement designated as a Working Capital Credit
Agreement by the Company, (ii) payment in full in cash of all other Working Capital Obligations
that are due and payable or otherwise accrued and owing at or prior to the time such principal and
interest are paid (including legal fees and other expenses, costs or charges accruing on or after
the commencement of any Insolvency or Liquidation Proceeding, whether or not a claim for such fees,
expenses, costs or charges is, or would be, allowed in whole or in part in such Insolvency or
Liquidation Proceeding), (iii) the payment in full in cash of cash collateral, or at Working
Capital Agent’s option, the delivery to Working Capital Agent of a letter of credit payable to
Working Capital Agent, in either case in accordance with the terms of the Working Capital Credit
Documents in respect of (A) letters of credit, banker’s acceptances or similar instruments issued
under the Working Capital Credit Documents (in an amount equal to one hundred three (103%) percent
of the amount of such letters of credit, banker’s acceptance or similar instruments) and (B)
continuing obligations of Working Capital Agent and Working Capital Lenders under control
agreements and other contingent Working Capital Obligations for which a claim or demand for payment
has been made at such time (including attorneys’ fees and legal expenses) to any Working Capital
Claimholders for which such Working Capital Claimholder is entitled to indemnification by any
Grantor, (iv) termination or cash collateralization (in an amount reasonably satisfactory to the
Working Capital Administrative Agent) of any Bank Products Agreement (to the extent that the
obligations under such Bank Products Agreement constitutes Working Capital Obligations) and the
payment in full in cash of all Bank Product Debt (to the extent such Bank Product Debt constitutes
Working Capital Obligations), subject, with respect to the aggregate principal amount of the
relevant items set forth in the foregoing clauses (i), (ii) and (iii)(A), to the limitations set
forth in the definition of Maximum Working Capital Obligations.



     “Documents” has the meaning set forth in the UCC.



     “Domestic Subsidiaries” shall mean, with respect to any Person, any Subsidiary of such Person
which is incorporated or organized under the laws of any state of the United States or the District
of Columbia.



     “Equipment” has the meaning set forth in the UCC, including all machinery, apparatus,
equipment, fittings, furniture, fixtures, motor vehicles and other tangible personal property
(other than



9









 




Inventory), and all parts, accessories and special tools therefor, and accessions thereto.




     “Event of Default” has the meaning set forth in (a) prior to the Discharge of Working Capital
Obligations, the Working Capital Credit Agreement, (b) prior to the Discharge of Term Loan
Obligations, the Term Loan Credit Agreement and (c) prior to the Discharge of Additional
Obligations, any applicable Additional Credit Facility then in effect.



     “Excess Additional Obligations Principal Exposure” has the meaning set forth in Section
2.2(e).



     “Excess Term Loan Principal Exposure” has the meaning set forth in Section 2.2(d).



     “Excess Working Capital Principal Exposure” has the meaning set forth in Section 2.2(c).



     “Financial Asset” has the meaning set forth in the UCC.



     “Fixture” has the meaning set forth in the UCC.



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



     “General Intangible” has the meaning set forth in the UCC.



     “Goods” has the meaning set forth in the UCC.



     “Grantors” has the meaning set forth in the introductory paragraph of this Agreement.



     “Indebtedness” means, with respect to any Person, any liability, whether or not contingent,
(a) in respect of borrowed money (whether or not the recourse of the lender is to the whole of the
assets of such Person or only to a portion thereof) or evidenced by bonds, notes, debentures or
similar instruments; (b) representing the balance deferred and unpaid of the purchase price of any
property or services (other than an account payable to a trade creditor (whether or not an
Affiliate) incurred in the ordinary course of business of such Person); (c) all obligations as
lessee under leases which have been, or should be, in accordance with GAAP recorded as Capital
Leases; (d) any contractual obligation, contingent or otherwise, of such Person to pay or be liable
for the payment of any indebtedness described in this definition of another Person, including,
without limitation, any such indebtedness, directly or indirectly guaranteed, or any agreement to
purchase, repurchase, or otherwise acquire such indebtedness, obligation or liability or any
security therefor, or to provide funds for the payment or discharge thereof, or to maintain
solvency, assets, level of income, or other financial condition; (e) all obligations with respect
to redeemable stock and redemption or repurchase obligations under any Capital Stock or other
equity securities issued by such Person; (f) all reimbursement obligations and other liabilities of
such Person with respect to surety bonds (whether bid, performance or otherwise), letters of
credit, banker’s acceptances, drafts or similar documents or instruments issued for such Person’s
account; (g) all indebtedness of such Person in respect of indebtedness of another Person for
borrowed money or indebtedness of another Person otherwise described in this definition which is
secured by any consensual lien, security interest, collateral assignment, conditional sale,
mortgage, deed of trust, or other



10









 




encumbrance on any asset of such Person, whether or not such obligations, liabilities or
indebtedness are assumed by or are a personal liability of such Person, all as of such time; (h)
all obligations, liabilities and indebtedness of such Person (marked to market) arising under swap
agreements, cap agreements and collar agreements and other agreements or arrangements designed to
protect such person against fluctuations in interest rates or currency or commodity values; (i) all
obligations owed by such Person under license agreements with respect to non-refundable, advance or
minimum guarantee royalty payments; (j) indebtedness of any partnership or joint venture in which
such Person is a general partner or a joint venturer to the extent such Person is liable therefor
as a result of such Person’s ownership interest in such entity, except to the extent that the terms
of such indebtedness expressly provide that such Person is not liable therefor or such Person has
no liability therefor as a matter of law and (k) the principal and interest portions of all rental
obligations of such Person under any synthetic lease or similar off-balance sheet financing where
such transaction is considered to be borrowed money for tax purposes but is classified as an
operating lease in accordance with GAAP.




     “Initial Working Capital Credit Agreement” has the meaning set forth in the recitals hereto.



     “Initial Term Loan Credit Agreement” has the meaning set forth in the recitals hereto.



     “Insolvency or Liquidation Proceeding” means 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 Bankruptcy Law or 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.



     “Instrument” has the meaning set forth in the UCC.



     “Investment Property” has the meaning set forth in the UCC.



     “Inventory” has the meaning set forth 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 the Company’s business (but excluding Equipment).




	 	 	“Letter of Credit Rights” has the meaning set forth in the UCC.





     “Lien” means any mortgage, pledge, hypothecation, assignment, deposit arrangement,
encumbrance, lien (statutory or other), charge, or preference, priority or other security interest
or preferential arrangement in the nature of a security interest of any kind or nature whatsoever
(including any conditional sale or other title retention agreement, any easement, right of way or
other encumbrance on title to real property, and any financing lease having substantially the same
economic effect as any of the foregoing).



     “Limited License” has the meaning set forth in Section 5.5.



     “Maximum Working Capital Obligations” has the meaning set forth in the definition of Working
Capital Obligations.



     “Non-Priority Agent” means, with respect to the Working Capital Priority Collateral, the Term



11









 




Loan Agent and any Additional Agent, as applicable, and, with respect to the Term Loan
Priority Collateral, the Working Capital Agent.




     “Non-Priority Claimholders” means, with respect to the Working Capital Priority Collateral,
the Term Loan Claimholders or the applicable Additional Claimholders, as applicable, and, with
respect to the Term Loan Priority Collateral, the Working Capital Claimholders.



     “Obligations” means Term Loan Obligations, the Working Capital Obligations or any Additional
Obligations, as applicable.



     “Ordinary Course of Business” means the ordinary course of business of the Company or
Subsidiaries, consistent with past practices and undertaken in good faith (and not for the purpose
of evading any provision of a Credit Document).




	 	 	“Payment Intangibles” has the meaning set forth in the UCC.





     “Person” means any individual, sole proprietorship, partnership, corporation (including any
corporation which elects subchapter S status under the Internal Revenue Code of 1986), limited
liability company, limited liability partnership, business trust, unincorporated association, joint
stock corporation, trust, joint venture or other entity or any government or any agency or
instrumentality or political subdivision thereof.



     “Priority Agent” means, with respect to the Working Capital Priority Collateral, the Working
Capital Agent, and, with respect to the Term Loan Priority Collateral, the Term Loan
Representative. The Term Loan Representative’s constituents (for purposes of Section 5.3,
Section 5.4 and Section 6.1) shall be all Claimholders who are Priority
Claimholders with respect to the Term Loan Priority Collateral or (after the Discharge of Working
Capital Obligations) the Collateral.



     “Priority Claimholders” means, with respect to the Working Capital Priority Collateral, the
Working Capital Claimholders, and, with respect to the Term Loan Priority Collateral, the Term Loan
Claimholders and any Additional Claimholders, as applicable.



     “Priority Collateral” means, with respect to the Working Capital Agent and the other Working
Capital Claimholders, the Working Capital Priority Collateral, and, with respect to the Term Loan
Agent and the other Term Loan Claimholders and any Additional Agent and any other Additional
Claimholders, the Term Loan Priority Collateral, as applicable.



     “Proceeds” has the meaning set forth in the UCC.



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



     “Protective Advances” means loans made under the Working Capital Credit Agreement by the
Working Capital Agent, that, in the exercise of its reasonable business judgment, the Working
Capital Agent deems the funding of such loan to be necessary (i) to preserve or protect the Working
Capital Priority Collateral or any portion thereof, (ii) to enhance the likelihood, or increase the
amount, of repayment of the Working Capital Obligations or (iii) to pay any other amount chargeable
to Grantors pursuant to the terms of the Working Capital Credit Agreement, including costs, fees
and expenses, all of which loans shall be deemed part of the Working Capital Obligations and
secured by the Collateral.



12









 





     “Recovery” has the meaning set forth in Section 6.7.



     “Refinance” means, in respect of any Indebtedness, to refinance, replace or repay, or to issue
other Indebtedness, in exchange or replacement for, such Indebtedness (whether such refinancing,
replacement or repayment or issuance occurs concurrently with the repayment of such Indebtedness or
after any lapse of time during which there may not exist any such Indebtedness). “Refinanced” and
“Refinancing” shall have correlative meanings.



     “Requisite Lenders” means Additional Claimholders and/or Term Loan Claimholders holding, in
the aggregate, in excess of 50% of the aggregate principal amount of the Additional Obligations and
the Term Loan Obligations; provided that, if the matter being consented to or the action being
taken by the Term Loan Representative is the subordination of Liens to other Liens, the consent to
DIP Financing, or the consent to a sale of all or substantially all of the Term Loan Priority
Collateral or (after the Discharge of Working Capital Obligations) all or substantially all of the
Collateral, then “Requisite Lenders” means those Claimholders necessary to validly consent to the
requested action in accordance with the applicable Term Loan Documents and Additional Loan
Documents.



     “Subsidiary” means, with respect to any Person, any corporation, limited liability company,
limited liability partnership or other limited or general partnership, trust, association or other
business entity of which an aggregate of at least a majority of the outstanding Capital Stock or
other interests entitled to vote in the election of the board of directors of such corporation
(irrespective of whether, at the time, Capital Stock of any other class or classes of such
corporation shall have or might have voting power by reason of the happening of any contingency),
managers, trustees or other controlling persons, or an equivalent controlling interest therein, of
such Person is, at the time, directly or indirectly, owned by such Person and/or one or more
subsidiaries of such Person.




	 	 	“Supporting Obligations” has the meaning set forth in the UCC.





     “Term Loan Administrative Agent” has the meaning set forth in the introductory paragraph of
this Agreement and including any replacement or successor agent whether under the Initial Term Loan
Credit Agreement or any subsequent Term Loan Credit Agreement.



     “Term Loan Agent” has the meaning set forth in the introductory paragraph of this Agreement
and including any replacement or successor agent whether under the Initial Term Loan Credit
Agreement or any subsequent Term Loan Credit Agreement.



     “Term Loan Claimholders” means, at any relevant time, the holders of Term Loan Obligations at
such time, including without limitation the Term Loan Lenders and any agent under the Term Loan
Credit Agreement.



     “Term Loan Collateral” means all of the assets and property of any Grantor, whether real,
personal or mixed, with respect to which a Lien is granted as security for any Term Loan
Obligations.



     “Term Loan Collateral Disposition” has the meaning set forth in Section 5.1(a)(ii).



     “Term Loan Collateral Documents” means the Security Documents (as defined in the Term Loan
Credit Agreement as amended from time to time) and any other agreement, document or instrument
pursuant to which a Lien is granted securing any Term Loan Obligations or under which rights or
remedies with respect to such Liens are governed.



13









 





     “Term Loan Collateral Exercise of Remedies” has the meaning set forth in
Section 5.1(a)(i).



     “Term Loan Credit Agreement” means (i) the Initial Term Loan Credit Agreement and (ii) if
designated by the Company, any other credit agreement, loan agreement, note agreement, promissory
note, indenture or other agreement or instrument evidencing or governing the terms of any
indebtedness or other financial accommodation that has been incurred to extend, increase (subject
to the limitations set forth herein), or Refinance in whole or in part the indebtedness and other
obligations outstanding under the (x) Initial Term Loan Credit Agreement or (y) any subsequent Term
Loan Credit Agreement (as amended, restated, supplemented or modified from time to time);
provided, that the lenders party to such Term Loan Credit Agreement shall agree, by a
joinder agreement substantially in the form of Exhibit C hereto or otherwise in form and substance
reasonably satisfactory to the Working Capital Agent, that the obligations under such Term Loan
Credit Agreement are subject to the terms and provisions of this Agreement. Any reference to the
Term Loan Credit Agreement hereunder shall be deemed a reference to any Term Loan Credit Agreement
then in existence.



     “Term Loan Credit Documents” means the Term Loan Credit Agreement and the other Loan Documents
(as defined in the Term Loan Credit Agreement as amended from time to time) and each of the other
agreements, documents and instruments providing for or evidencing any other Term Loan Obligation,
and any other document or instrument executed or delivered at any time in connection with any Term
Loan Obligations, including any intercreditor or joinder agreement among holders of Term Loan
Obligations or among holders of Term Loan Obligations and Additional Obligations, to the extent
such are effective at the relevant time, as each may be modified from time to time.



     “Term Loan Lenders” means any “Lender”, as defined in the Term Loan Credit Agreement, and
including, in the case of Bank Products Agreements, Affiliates of Term Loan Lenders who are parties
to Bank Products Agreements with any Grantor.



     “Term Loan Obligations” means any and all loans and all other obligations, liabilities and
indebtedness of every kind, nature and description owing by any Grantor whether now existing or
hereafter arising, whether arising before, during or after the commencement of any case with
respect to any Grantor under the Bankruptcy Code or any other Insolvency or Liquidation Proceeding
under (i) the Term Loan Credit Agreement, (ii) the other Term Loan Credit Documents and (iii) any
Bank Products Agreement entered into with any Person who at the time of entry into such agreement
is either the Term Loan Agent, the Term Loan Administrative Agent, any Term Loan Lender or any
Affiliate of a Term Loan Lender; provided that the aggregate principal amount of, without
duplication, any term loans, bonds, debentures, notes or similar instruments (excluding, in any
event, any Bank Product Debt) issued under the Term Loan Credit Agreement or any other Term Loan
Credit Document (or any Refinancing thereof) in excess of (x) at all times prior to the funding of
the Additional Term Loans (as such term is defined in the Term Loan Credit Agreement in effect as
of the date hereof), $171,000,000, and (y) at all times after the funding of the Additional Term
Loans, the sum of $171,000,000 plus the product of (i) 114% times (ii) the amount
actually funded under the Additional Term Loans in an amount not to exceed the maximum amount of
Incremental Term Loans permitted by the Term Loan Credit Agreement in effect as of the date hereof
(the “TL Cap Amount”), shall not constitute Term Loan Obligations for purposes of this Agreement.
“Term Loan Obligations” shall include (x) all interest accrued or accruing (or which would, absent
commencement of an Insolvency or Liquidation Proceeding, accrue) in accordance with the rate
specified in the relevant Term Loan Credit Document and (y) all fees, costs and charges incurred in
connection with the Term Loan Credit Documents and provided for thereunder, in the case of each of
clause (x) and clause (y) whether before or after commencement of an Insolvency or Liquidation
Proceeding and irrespective of whether any claim for such interest, fees, costs or charges is
allowed as a claim in such Insolvency or Liquidation Proceeding. To the extent that the principal
balance of



14









 




obligations owing under the Term Loan Credit Agreement or any other Term Loan Credit Document
exceeds the TL Cap Amount, the excess shall be attributed entirely to the portion of Term Loan
Obligations that causes the TL Cap Amount to be exceeded.




     “Term Loan Priority Collateral” means all of the present and future assets and Property of the
Company and any other Grantor, whether real, personal or mixed, with respect to which a Lien is
granted as security for any Term Loan Obligations, that do not constitute Working Capital Priority
Collateral, including without limitation:



     (a) all of the Capital Stock of each of the present and future Subsidiaries of the Company;



     (b) all of the following present and future Property of the Company and each other Grantor:




     (i) all present and future patents and patent license rights, trademarks and trademark
license rights, copyrights and copyright license rights, trade secrets and processes and
other intellectual property;




     (ii) all present and future machinery and other Equipment, real Property (whether owned
or leased), Fixtures, Financial Assets, Investment Property and Commercial Tort Claims;




     (iii) the TL Deposit Account (to the extent any Grantor has rights therein) and all
cash from time to time on deposit in the TL Deposit Account (to the extent any Grantor has
rights therein);




     (iv) Chattel Paper, Documents and Instruments; and




     (v) General Intangibles and other contract rights, including any indemnification
rights; and



     (c) all Proceeds (including, without limitation, insurance proceeds) and products of the
Property and assets described in the foregoing clauses (a) and (b).



     “Term Loan Representative” means the Term Loan Agent acting at the direction of the Requisite
Lenders, unless the principal amount of Additional Obligations under any Additional Credit Facility
exceeds the principal amount of Term Loan Obligations under the Term Loan Facility, and in such
case, the Additional Agent under such Additional Credit Facility (or, if there is more than one
such Additional Credit Facility, the Additional Credit Facility under which the greatest principal
amount of Additional Obligations is outstanding at the time) acting at the direction of the
Requisite Lenders.



     “TL Cap Amount” has the meaning set forth in the definition of Term Loan Obligations.



     “TL Deposit Account” means that certain segregated Deposit Account of the Company created on
or after the date hereof to hold the proceeds of Term Loan Priority Collateral, together with any
replacement or similar deposit account created to serve such purpose.



     “UCC” means the Uniform Commercial Code (or any similar or equivalent legislation) as in
effect in any applicable jurisdiction.



     “Voting Stock” means, with respect to any Person, (a) one (1) or more classes of Capital Stock
of such Person having general voting powers to elect at least a majority of the board of directors,
managers



15









 




or trustees of such Person, irrespective of whether at the time Capital Stock of any other
class or classes have or might have voting power by reason of the happening of any contingency, and
(b) any Capital Stock of such Person convertible or exchangeable without restriction at the option
of the holder thereof into Capital Stock of such Person described in clause (a) of this definition.




     “Working Capital Administrative Agent” has the meaning set forth in the introductory paragraph
of this Agreement and including any replacement or successor agent whether under the Initial
Working Capital Credit Agreement or any subsequent Working Capital Credit Agreement.



     “Working Capital Agent” has the meaning set forth in the introductory paragraph of this
Agreement and including any replacement or successor agent whether under the Initial Working
Capital Credit Agreement or any subsequent Working Capital Credit Agreement.



     “Working Capital Claimholders” means, at any relevant time, the holders of Working Capital
Obligations at such time, including without limitation the Working Capital Lenders and any agent
under the Working Capital Credit Agreement, and including, in the case of Bank Products Agreements,
Affiliates of Working Capital Lenders who are parties to Bank Products Agreements with any Grantor.



     “Working Capital Collateral” means all of the assets and property of any Grantor, whether
real, personal or mixed, with respect to which a Lien is granted as security for any Working
Capital Obligations.



     “Working Capital Collateral Disposition” has the meaning set forth in
Section 5.1(d)(ii).



     “Working Capital Collateral Documents” means the Security Documents (as defined in the Working
Capital Credit Agreement as amended from time to time) and any other agreement, document or
instrument pursuant to which a Lien is granted securing any Working Capital Obligations or under
which rights or remedies with respect to such Liens are governed.



     “Working Capital Collateral Exercise of Remedies” has the meaning set forth in
Section 5.1(d)(i).



     “Working Capital Credit Agreement” means (i) the Initial Working Capital Credit Agreement and
(ii) if designated by the Company, any other credit agreement, loan agreement, note agreement,
promissory note, indenture or other agreement or instrument evidencing or governing the terms of
any indebtedness or other financial accommodation that has been incurred to extend, increase
(subject to the limitations set forth herein), or Refinance in whole or in part the indebtedness
and other obligations outstanding under the (x) Initial Working Capital Credit Agreement or (y) any
subsequent Working Capital Credit Agreement (as amended, restated, supplemented or modified from
time to time); provided, that the lenders party to such Working Capital Credit Agreement
shall agree, by a joinder agreement substantially in the form of Exhibit C hereto or otherwise in
form and substance reasonably satisfactory to the Term Loan Agent, that the obligations under such
Working Capital Credit Agreement are subject to the terms and provisions of this Agreement.. Any
reference to the Working Capital Credit Agreement hereunder shall be deemed a reference to any
Working Capital Credit Agreement then in existence.



     “Working Capital Credit Documents” means the Working Capital Credit Agreement and the other
Financing Agreements (as defined in the Working Capital Credit Agreement as amended from time to
time) and each of the other agreements, documents and instruments providing for or evidencing any
other Working Capital Obligation, and any other document or instrument executed or delivered at any
time in connection with any Working Capital Obligations, including any intercreditor or joinder



16









 




agreement among holders of Working Capital Obligations, to the extent such are effective at
the relevant time, as each may be modified from time to time.




     “Working Capital General Intangibles” means all General Intangibles (including, without
limitation, (i) payment intangibles, (ii) all interest, fees, late charges, penalties, collection
fees and other amounts due or to become due or otherwise payable in connection with any Account,
(iii) choses in action, causes of action, or other rights and claims against carriers, shippers,
processors, warehouses, bailees, custom brokers, freight forwarders, or other third parties at any
time in possession of, or using, any of the other Working Capital Priority Collateral or any
sellers of any other Working Capital Priority Collateral, (iv) rights of stoppage in transit,
replevin, repossession, reclamation and other rights and remedies of an unpaid vendor, lienor or
secured party, (v) agreements or arrangements with sales agents, distributors or the like and/or
consignees, warehouses or other third persons in possession of Inventory, (vi) guaranty or warranty
claims with respect to Accounts or Inventory, (vii) rights to indemnification and proceeds thereof,
and (viii) commercial tort claims) of a Grantor that arise from, in respect of or constitute
proceeds of, any of the Accounts or other specifically enumerated types of Working Capital Priority
Collateral.



     “Working Capital Lenders” means any “Lender” as such term is defined in the Working Capital
Credit Agreement.



     “Working Capital Obligations” means any and all loans, letter of credit obligations and all
other obligations, liabilities and indebtedness of every kind, nature and description owing by any
Grantor whether now existing or hereafter arising, whether arising before, during or after the
commencement of any case with respect to any Grantor under the Bankruptcy Code or any other
Insolvency or Liquidation Proceeding under (i) the Working Capital Credit Agreement, (ii) the other
Working Capital Credit Documents and (iii) any Bank Products Agreement entered into with any Person
who at the time of entry into such agreement is either the Working Capital Agent, the Working
Capital Administrative Agent, the Working Capital Lenders or any Affiliate of the Working Capital
Lenders; provided that, the aggregate principal amount of, without duplication, any
revolving credit commitments, revolving credit loans, letters of credit, term loans, bonds,
debentures, notes or similar instruments (excluding, in any event, Bank Product Debt and Protective
Advances) issued under the Working Capital Credit Agreement or any other Working Capital Credit
Document (or any Refinancing thereof) in excess of the lesser of (x) the sum of the Maximum Credit
(as such term is defined in the Working Capital Credit Agreement in effect as of the date hereof)
as then in effect in accordance with the terms of the Working Capital Credit Agreement plus
fourteen (14%) percent thereof or (y) $200,000,000 (the “Maximum Working Capital Obligations”),
shall not constitute Working Capital Obligations for purposes of this Agreement. “Working Capital
Obligations” shall include (x) all interest accrued or accruing (or which would, absent
commencement of an Insolvency or Liquidation Proceeding, accrue) in accordance with the rate
specified in the relevant Working Capital Credit Document and (y) all fees, costs and charges
incurred in connection with the Working Capital Credit Documents and provided for thereunder, in
the case of each of clause (x) and clause (y) whether before or after commencement of an Insolvency
or Liquidation Proceeding and irrespective of whether any claim for such interest, fees, costs or
charges is allowed as a claim in such Insolvency or Liquidation Proceeding.



     “Working Capital Priority Collateral” means all of the following present and future assets and
Property of the Company and any other Grantor with respect to which a Lien is granted as security
for any Working Capital Obligations:




     (a) (i) Accounts (other than Accounts or other payment obligations constituting the
proceeds of Term Loan Priority Collateral);



17









 






     (ii) Inventory;




     (iii) Chattel Paper, Instruments, Documents, in each case only to the extent relating
to Accounts (other than Accounts or other payment obligations constituting the proceeds of
Term Loan Priority Collateral), Inventory or other specifically enumerated types of Working
Capital Priority Collateral;




     (iv) Working Capital General Intangibles;




     (v) Deposit Accounts (other than the TL Deposit Account);




     (vi) cash and investment property (other than the TL Deposit Account, the stock of
subsidiaries or Proceeds of the Term Loan Priority Collateral), including all monies,
deposits and balances held in or for deposit in or otherwise attributable to any lockboxes
or deposit accounts established or used by any Grantor in connection with the financing
arrangements with Working Capital Agent and Working Capital Lenders for the handling of
collections of any of the Accounts or any of the other Working Capital Priority Collateral
of Borrower, or any other deposit account, investment account or other account at any
depository or other institution and including any investment property (including securities,
whether certificated or uncertificated, securities accounts, security entitlements,
commodity contracts or commodity accounts), other than the TL Deposit Account or any of the
same held in the TL Deposit Account or constituting the stock of subsidiaries of a Grantor;




     (vii) Letter-of-Credit Rights and Supporting Obligations in respect of Inventory,
Accounts (other than Accounts or other payment obligations constituting the proceeds of Term
Loan Priority Collateral) or other specifically enumerated types of Working Capital Priority
Collateral;




     (viii) books and records and accounting systems relating to Accounts, Inventory or
other specifically enumerated types of Working Capital Priority Collateral
including, without limitation, invoices, purchase order, ledger cards, shipping
evidence, statements, correspondence, memoranda, customer lists, credit files and other
data, in each case relating to any of the other Working Capital Priority Collateral or any
account debtor, together with the tapes, software, disks, diskettes and other data and media
storage devices;




     (ix) Customer Contracts;




     (x) tax refunds (other than any 2009 Tax Refunds (as defined in the Term Loan Credit
Agreement));




     (xi) any Bank Products Agreements consisting of hedge agreements; and



     (b) all Proceeds (including, without limitation, insurance proceeds) and products of the
Property described in the foregoing clause (a).



     1.2 Terms Generally. The definitions of terms herein shall apply equally to the singular and
plural forms of the terms defined. Whenever the context may require, any pronoun shall include the
corresponding masculine, feminine and neuter forms. The words “include”, “includes” and
“including” shall be deemed to be followed by the phrase “without limitation.” The word “will”
shall be construed to



18









 




have the same meaning and effect as the word “shall”. Unless the context requires otherwise
(i) any definition of or reference to any agreement, instrument or other document herein shall be
construed as referring to such agreement, instrument or other document as from time to time
amended, supplemented or otherwise modified, (ii) any reference herein to any Person shall be
construed to include such Person’s successors and assigns, (iii) the words “herein”, “hereof” and
“hereunder”, and words of similar import, shall be construed to refer to this Agreement in its
entirety and not to any particular provision hereof, (iv) all references herein to Exhibits or
Sections shall be construed to refer to Exhibits or Sections of this Agreement and (v) the words
“asset” and “property” shall be construed to have the same meaning and effect and to refer to any
and all tangible and intangible assets and properties, including cash, securities, accounts and
contract rights.




SECTION 2




LIEN PRIORITIES



     2.1 Scope of Collateral. The Working Capital Agent, for and on behalf of the Working Capital
Claimholders, hereby acknowledges that (a) the Term Loan Agent, for and on behalf of the Term Loan
Claimholders, has been granted Liens upon all of the Collateral pursuant to the Term Loan Credit
Documents to secure the Term Loan Obligations and (b) upon compliance with Section 8.10 of
this Agreement, any Additional Agent, for and on behalf of the applicable Additional Claimholders,
will have been granted Liens upon all of the Collateral pursuant to the applicable Additional
Documents to secure the applicable Additional Obligations. The Term Loan Agent, for and on behalf
of the Term Loan Claimholders, hereby acknowledges that (a) the Working Capital Agent, for and on
behalf of the Working Capital Claimholders, has been granted Liens upon all of the Collateral
pursuant to the Working Capital Credit Documents to secure the Working Capital Obligations and (b)
upon compliance with Section 8.10 of this Agreement, any Additional Agent, for and on
behalf of the applicable Additional Claimholders, will have been granted Liens upon all of the
Collateral pursuant to the applicable Additional Documents to secure the applicable Additional
Obligations. Each Additional Agent, for and on behalf of the applicable Additional Claimholders,
hereby acknowledges that (a) the Working Capital Agent, for and on behalf of the Working Capital
Claimholders, has been granted Liens upon all of the Collateral pursuant to the Working Capital
Credit Documents to secure the Working Capital Obligations, (b) the Term Loan Agent, for and on
behalf of the Term Loan Claimholders, has been granted Liens upon all of the Collateral pursuant to
the Term Loan Credit Documents to secure the Term Loan Obligations and (c) any other Additional
Agent, for and on behalf of the applicable Additional Claimholders, will have been granted Liens
upon all of the Collateral pursuant to the applicable Additional Documents to secure the applicable
Additional Obligations



     2.2 Priority.




     (a) Notwithstanding the order or time of attachment, or the order, time or manner of
perfection, or the order or time of filing or recordation of any document or instrument, or
other method of perfecting a Lien in favor of any Claimholder in any Working Capital
Priority Collateral, and notwithstanding any conflicting terms or conditions which may be
contained in any of the Credit Documents, subject to Section 2.2(c), (x) the Liens
upon the Working Capital Priority Collateral securing the Working Capital Obligations shall
have priority over the Liens upon the Working Capital Priority Collateral securing the Term
Loan Obligations and any Additional Obligations and such Liens upon the Working Capital
Priority Collateral securing the Term Loan Obligations and any Additional Obligations are
and shall be junior and subordinate to the Liens upon the Working Capital Priority
Collateral securing the Working Capital Obligations in all respects, (y) the Liens upon the
Working Capital Priority Collateral securing the Term Loan



19









 







Obligations shall in all respects be pari passu and equal in priority with any Liens
upon the Working Capital Priority Collateral securing any Additional Obligations and (z)
except as may be separately otherwise agreed by and between or among any applicable
Additional Agents, any Liens upon the Working Capital Priority Collateral securing any
applicable Additional Obligations shall in all respects be pari passu and equal in priority
with any Liens upon the Working Capital Collateral securing any other Additional
Obligations.




     (b) Notwithstanding the order or time of attachment, or the order, time or manner of
perfection, or the order or time of filing or recordation of any document or instrument, or
other method of perfecting a Lien in favor of any Claimholder in any Term Loan Priority
Collateral, and notwithstanding any conflicting terms or conditions which may be contained
in any of the Credit Documents, subject to Section 2.2(d), (x) the Liens upon the
Term Loan Priority Collateral securing the Term Loan Obligations and any Additional
Obligations shall have priority over the Liens upon the Term Loan Priority Collateral
securing the Working Capital Obligations and such Liens upon the Term Loan Priority
Collateral securing the Working Capital Obligations are and shall be junior and subordinate
to the Liens upon the Term Loan Priority Collateral securing the Term Loan Obligations and
any Additional Obligations in all respects, (y) the Liens upon the Term Loan Priority
Collateral securing the Term Loan Obligations shall in all respects be pari passu and equal
in priority with any Liens upon the Term Loan Priority Collateral securing any Additional
Obligations and (z) except as may be separately otherwise agreed by and between or among any
applicable Additional Agents, any Liens upon the Term Loan Priority Collateral securing any
applicable Additional Obligations shall in all respects be pari passu and equal in priority
with any Liens upon the Term Loan Priority Collateral securing any other Additional
Obligations.




     (c) Notwithstanding the foregoing clauses (a) and (b) or anything else in this
Agreement to the contrary, the Aggregate Principal Exposure of extensions of credit made by
the Working Capital Lenders to any of the Grantors that exceed the Maximum Working Capital
Obligations (such excess amount, the “Excess Working Capital Principal Exposure”) shall not
be considered Working Capital Obligations for purposes of the Lien priority set forth in
Section 2.2(a) above with respect to the Working Capital Priority Collateral. To
the extent provided under the Working Capital Credit Documents, all such Excess Working
Capital Principal Exposure shall continue to be secured by the Collateral (including without
limitation the Working Capital Priority Collateral); provided, that to the extent
that the Liens on the Working Capital Priority Collateral secure such Excess Working Capital
Principal Exposure, such Liens shall be junior and subordinate to the Liens on the Working
Capital Priority Collateral securing the Term Loan Obligations (other than any Excess Term
Loan Principal Exposure) and any Additional Obligations (other than any Excess Additional
Obligations Principal Exposure).




     (d) Notwithstanding the foregoing clauses (a) and (b) or anything else in this
Agreement to the contrary, the Aggregate Principal Exposure of extensions of credit made by
Term Loan Lenders to any of the Grantors that exceed the TL Cap Amount (such excess amount,
the “Excess Term Loan Principal Exposure”) shall not be considered Term Loan Obligations for
purposes of the Lien priority set forth in Section 2.2(b) above with respect to the
Term Loan Priority Collateral and Section 2.2(a)(y) above with respect to the
Working Capital Priority Collateral. To the extent provided under the Term Loan Credit
Documents, all such Excess Term Loan Principal Exposure shall continue to be secured by the
Collateral (including without limitation the Term Loan Priority Collateral);
provided, that (x) to the extent that the Liens on the Term Loan Priority Collateral
secure such Excess Term Loan Principal Exposure, such Liens shall be junior and subordinate
to the Liens on the Term Loan Priority Collateral securing the



20









 







Working Capital Obligations (other than any Excess Working Capital Principal Exposure)
and any Additional Obligations (other than any Excess Additional Obligations Principal
Exposure) and (y) to the extent that the Liens on the Working Capital Priority Collateral
secure such Excess Term Loan Principal Exposure, such Liens shall be junior and subordinate
to the Liens on the Working Capital Priority Collateral securing any Additional Obligations
(other than any Excess Additional Obligations Principal Exposure) and any Excess Working
Capital Principal Exposure




     (e) Notwithstanding the foregoing clauses (a) and (b) or anything else in this
Agreement to the contrary, the Aggregate Principal Exposure of extensions of credit made by
any applicable Additional Credit Facility Creditors to any of the Grantors under the
applicable Additional Credit Facility and other related applicable Additional Documents that
exceed the Additional Cap Amount (such excess amount, the “Excess Additional Obligations
Principal Exposure”) shall not be considered Additional Obligations for purposes of the Lien
priority set forth in Section 2.2(b) above with respect to the Term Loan Priority
Collateral and Sections 2.2(a)(y) and 2.2(a)(z) above with respect to the Working
Capital Priority Collateral. To the extent provided under such Additional Credit Facility
and other related applicable Additional Documents, all such Excess Additional Obligations
Principal Exposure shall continue to be secured by the Collateral (including without
limitation the Term Loan Priority Collateral); provided, that (x) to the extent that
the Liens on the Term Loan Priority Collateral secure such Excess Additional Obligations
Principal Exposure, such Liens shall be junior and subordinate to the Liens on the Term Loan
Priority Collateral securing the Working Capital Obligations (other than any Excess Working
Capital Principal Exposure), the Term Loan Obligations (other than any Excess Term Loan
Principal Exposure) and any other Additional Obligations (other than any applicable Excess
Additional Obligations Principal Exposure in respect of such other Additional Obligations)
and (y) to the extent that the Liens on the Working Capital Priority Collateral secure such
Excess Additional Obligations Principal Exposure, such Liens shall be junior and subordinate
to the Liens on the Working Capital Priority Collateral securing the Term Loan Obligations
(other than any Excess Term Loan Principal Exposure) and any other Additional Obligations
(other than any applicable Excess Additional Obligations Principal Exposure in respect of
such other Additional Obligations) and any Excess Working Capital Principal Exposure.



     2.3 Failure to Perfect. Notwithstanding any failure of any Claimholder to perfect its
security interest in its respective Priority Collateral, the subordination of its Lien on such
Priority Collateral to any Lien securing any other obligation of any Grantor, or the avoidance,
invalidation or lapse of its Lien on such Priority Collateral:




	(a)	 	subject to Section 2.2(c), the Liens upon the Working Capital Priority Collateral securing
the Working Capital Obligations shall be and remain senior in all respects and prior to the
Liens on the Working Capital Priority Collateral securing the Term Loan Obligations and any
Additional Obligations,






	(b)	 	subject to Section 2.2(d), the Liens on the Term Loan Priority Collateral securing the Term
Loan Obligations shall be and remain senior in all respects and prior to the Liens on the Term
Loan Priority Collateral securing the Working Capital Obligations, and the Liens on any
Collateral securing the Term Loan Obligations shall be pari passu and equal in priority in all
respects with any Liens on such Collateral securing any Additional Obligations, and






	(c)	 	subject to Section 2.2(e), the Liens on the Term Loan Priority Collateral securing any
Additional Obligations shall be and remain senior in all respects and prior to the Liens on
the Term Loan




21









 






	 	 	Priority Collateral securing the Working Capital Obligations, and the Liens on any
Collateral securing any Additional Obligations shall be pari passu and equal in priority in
all respects with any Liens on such Collateral securing the Term Loan Obligations and any
other Additional Obligations.





     2.4 Prohibition on Contesting Liens. Each of the Working Capital Agent, for itself and on
behalf of each Working Capital Claimholder, the Term Loan Agent, for itself and on behalf of each
Term Loan Claimholder, and each Additional Agent, for itself and on behalf of each applicable
Additional Claimholder, agrees that it shall not (and hereby waives any right to) contest or
support any other Person in contesting, in any proceeding (including any Insolvency or Liquidation
Proceeding), the priority, validity or enforceability of a Lien held by or on behalf of any of the
Term Loan Claimholders in any Collateral, or by or on behalf of any of the Working Capital
Claimholders in any Collateral, or by or on behalf of any of the Additional Claimholders in any
Collateral, as the case may be; provided that nothing in this Agreement shall be
construed to prevent or impair the rights of any such party to enforce this Agreement, including
the priority of the Lien held by it or for its benefit on its respective Priority Collateral as
provided in Sections 2.2 and 3.1.



     2.5 No New Liens.




     (a) Limitation on Collateral for Working Capital Claimholders. Until the
Discharge of Term Loan Obligations shall have occurred, if any Working Capital Claimholder
shall (nonetheless and in breach hereof) acquire any Lien on any assets of any Grantor or
any of its Subsidiaries to secure the Working Capital Obligations, which assets are not also
subject to a Lien in favor of the Term Loan Agent to secure the Term Loan Obligations, then
such Working Capital Claimholder shall, without the need for any further consent of any
other Person and notwithstanding anything to the contrary in any Working Capital Credit
Document (x) also hold and be deemed to have held such Lien and security interest for the
benefit of the Term Loan Agent as security for the Term Loan Obligations subject to the
priorities set forth herein, with any amounts received in respect thereof subject to
distribution and turnover under Section 4, or (y) release such Lien. Until any
applicable Discharge of Additional Obligations shall have occurred, if any Working Capital
Claimholder shall (nonetheless and in breach hereof) acquire any Lien on any assets of any
Grantor or any of its Subsidiaries to secure the Working Capital Obligations, which assets
are not also subject to a Lien in favor of the applicable Additional Agent to secure the
applicable Additional Obligations, then such Working Capital Claimholder shall, without the
need for any further consent of any other Person and notwithstanding anything to the
contrary in any Working Capital Credit Document (x) also hold and be deemed to have held
such Lien and security interest for the benefit of such Additional Agent as security for
such Additional Obligations subject to the priorities set forth herein, with any amounts
received in respect thereof subject to distribution and turnover under Section 4, or
(y) release such Lien.




     (b) Limitation on Collateral for Term Loan Claimholders. Until the Discharge
of Working Capital Obligations shall have occurred, if any Term Loan Claimholder shall
(nonetheless and in breach hereof) acquire any Lien on any assets of any Grantor or any of
its Subsidiaries to secure any Term Loan Obligations, which assets are not also subject to a
Lien of the Working Capital Agent to secure the Working Capital Obligations, then such Term
Loan Claimholder, shall, without the need for any further consent of any other Person and
notwithstanding anything to the contrary in any Term Loan Credit Document (x) also hold and
be deemed to have held such Lien and security interest for the benefit of the Working
Capital Agent as security for the Working Capital Obligations subject to the priorities set
forth herein, with any amounts received in respect thereof subject to distribution and
turnover under Section 4, or



22









 







(y) release such Lien. Until any applicable Discharge of Additional Obligations shall
have occurred, if any Term Loan Claimholder shall (nonetheless and in breach hereof) acquire
any Lien on any assets of any Grantor or any of its Subsidiaries to secure any Term Loan
Obligations, which assets are not also subject to a Lien of the applicable Additional Agent
to secure the applicable Additional Obligations, then such Term Loan Claimholder, shall,
without the need for any further consent of any other Person and notwithstanding anything to
the contrary in any Term Loan Credit Document (x) also hold and be deemed to have held such
Lien and security interest for the benefit of such Additional Agent as security for such
Additional Obligations subject to the priorities set forth herein, with any amounts received
in respect thereof subject to distribution and turnover under Section 4, or
(y) release such Lien.




     (c) Limitation on Collateral for Additional Claimholders. Until the Discharge
of Working Capital Obligations shall have occurred, if any Additional Claimholder shall
(nonetheless and in breach hereof) acquire any Lien on any assets of any Grantor or any of
its Subsidiaries to secure any Additional Obligations, which assets are not also subject to
a Lien of the Working Capital Agent to secure the Working Capital Obligations, then such
Additional Claimholder, shall, without the need for any further consent of any other Person
and notwithstanding anything to the contrary in any Additional Document (x) also hold and be
deemed to have held such Lien and security interest for the benefit of the Working Capital
Agent as security for the Working Capital Obligations subject to the priorities set forth
herein, with any amounts received in respect thereof subject to distribution and turnover
under Section 4, or (y) release such Lien. Until the Discharge of Term Loan
Obligations shall have occurred, if any Additional Claimholder shall (nonetheless and in
breach hereof) acquire any Lien on any assets of any Grantor or any of its Subsidiaries to
secure any Additional Obligations, which assets are not also subject to a Lien of the Term
Loan Agent to secure the Term Loan Obligations, then such Additional Claimholder, shall,
without the need for any further consent of any other Person and notwithstanding anything to
the contrary in any Additional Document (x) also hold and be deemed to have held such Lien
and security interest for the benefit of the Term Loan Agent as security for the Term Loan
Obligations subject to the priorities set forth herein, with any amounts received in respect
thereof subject to distribution and turnover under Section 4, or (y) release such
Lien. Until any applicable Discharge of Additional Obligations shall have occurred , if any
Additional Agent or other applicable Additional Claimholder shall (nonetheless and in breach
hereof) acquire any Lien on any assets of any Grantor or any of its Subsidiaries to secure
any Additional Obligations, which assets are not also subject to a Lien of any other
Additional Agent to secure any other Additional Obligations, then such Additional Agent or
other applicable Additional Claimholder, shall, without the need for any further consent of
any other Person and notwithstanding anything to the contrary in any applicable Additional
Document (x) also hold and be deemed to have held such Lien and security interest for the
benefit of such other Additional Agent as security for such other Additional Obligations
subject to the priorities set forth herein, with any amounts received in respect thereof
subject to distribution and turnover under Section 4, or (y) release such Lien.



     2.6 Similar Liens and Agreements. The parties hereto agree that it is their intention that
the Working Capital Collateral, the Term Loan Collateral and the Additional Collateral be
identical. In furtherance of the foregoing and of Section 8.9, the parties hereto agree,
subject to the other provisions of this Agreement, that upon request by the Working Capital Agent,
the Term Loan Agent or any Additional Agent, to cooperate in good faith (and to direct their
counsel to cooperate in good faith) from time to time in order to determine the specific items
included in the Working Capital Collateral, the Term Loan Collateral and the Additional Collateral
and the steps taken to perfect their respective Liens thereon and the identity of the respective
parties obligated under the Working Capital Credit Documents, the Term



23









 




Loan Credit Documents and the Additional Documents.




SECTION 3




ENFORCEMENT



     3.1 Enforcement.




     (a) So long as the Discharge of Working Capital Obligations has not occurred, whether
or not any Insolvency or Liquidation Proceeding has been commenced by or against Company or
any other Grantor:




     (i) the Term Loan Agent and the Term Loan Claimholders:




     (A) will not exercise or seek to exercise any rights or remedies
(including any right of set-off or recoupment) with respect to any Working
Capital Priority Collateral (including, without limitation, the exercise of
any right under any lockbox agreement, account control agreement, landlord
waiver or bailee’s letter or similar agreement or arrangement to which the
Term Loan Agent or any Term Loan Claimholder is a party) or institute or
commence (or join with any other Person in commencing) any enforcement,
collection, execution, levy or foreclosure action or proceeding with respect
to any Lien on the Working Capital Priority Collateral held by it under the
Term Loan Credit Documents or otherwise; and




     (B) will not contest, protest or object to any foreclosure proceeding
or action brought by the Working Capital Agent or any Working Claimholder
with respect to the Working Capital Priority Collateral, or any other
exercise by the Working Capital Agent or any other Working Capital
Claimholder, of any rights and remedies relating to the Working Capital
Priority Collateral under the Working Capital Credit Documents or otherwise;
provided that the respective interests of the Term Loan Claimholders attach
to the proceeds thereof, subject to the relative priorities described in
Section 2 and Section 4; and




     (C) will not object to the forbearance by the Working Capital Agent or
the other Working Capital Claimholders from bringing or pursuing any
foreclosure proceeding or action or any other exercise of any rights or
remedies relating to the Working Capital Priority Collateral; and




     (ii) subject to Section 5.1, the Working Capital Agent and the other
Working Capital Claimholders shall have the exclusive right to enforce rights,
exercise remedies (including set-off and the right to credit bid their debt) and
make determinations regarding the release, disposition, or restrictions with respect
to the Working Capital Priority Collateral without any consultation with or the
consent of the Term Loan Agent or any other Term Loan Claimholder; provided,
that




     (A) in any Insolvency or Liquidation Proceeding commenced by or against
Company or any other Grantor, the Term Loan Administrative Agent or the Term
Loan Agent may file a claim or statement of interest with respect to the
Term Loan Obligations,



24









 






     (B) the Term Loan Agent may take any action (not adverse to the Liens
on the Working Capital Priority Collateral securing the Working Capital
Obligations, or the rights of the Working Capital Agent or the other Working
Capital Claimholders to exercise remedies in respect thereof) in order to
preserve or protect its Lien on the Working Capital Priority Collateral,




     (C) the Term Loan Claimholders shall be entitled to file any necessary
responsive or defensive pleadings in opposition to any motion, claim,
adversary proceeding or other pleading made by any person objecting to or
otherwise seeking the disallowance of the claims of the Term Loan
Claimholders, including without limitation any claims secured by the Working
Capital Priority Collateral, if any, in each case in accordance with the
terms of this Agreement,




     (D) in any Insolvency or Liquidation Proceeding, the Term Loan
Claimholders shall be entitled to file any pleadings, objections, motions or
agreements which assert rights or interests available to unsecured creditors
of the Grantors arising under either Bankruptcy Law or applicable
non-bankruptcy law, in each case in accordance with the terms of this
Agreement (including subject to the terms of Section 5.1 and Section 6.2),




     (E) in any Insolvency or Liquidation Proceeding, the Term Loan
Claimholders shall be entitled to vote on any plan of reorganization, except
to the extent inconsistent with the provisions hereof, and




     (F) the Term Loan Agent or any Term Loan Claimholder may exercise any
of its rights or remedies with respect to the Term Loan Priority Collateral
consistent with the terms of this Agreement.




     (b) So long as the Discharge of Term Loan Obligations has not occurred, whether or not
any Insolvency or Liquidation Proceeding has been commenced by or against Company or any
other Grantor:




     (i) the Working Capital Agent and the Working Capital Claimholders:




     (A) will not exercise or seek to exercise any rights or remedies
(including any right of set-off or recoupment) with respect to any Term Loan
Priority Collateral (including, without limitation, the exercise of any
right under any lockbox agreement, account control agreement, landlord
waiver or bailee’s letter or similar agreement or arrangement to which the
Working Capital Agent or any Working Capital Claimholder is a party) or
institute or commence (or join with any other Person in commencing) any
enforcement, collection, execution, levy or foreclosure action or proceeding
with respect to any Lien on the Term Loan Priority Collateral held by it
under the Working Capital Credit Documents or otherwise; and




     (B) will not contest, protest or object to any foreclosure proceeding
or action brought by the Term Loan Agent or any Term Loan Claimholder with
respect to the Term Loan Priority Collateral, or any other exercise by the
Term Loan Agent or any other Term Loan Claimholder, of any rights and
remedies



25









 







relating to the Term Loan Priority Collateral under the Term Loan
Credit Documents or otherwise; provided that the respective interests of the
Working Capital Claimholders attach to the proceeds thereof, subject to the
relative priorities described in Section 2 and Section 4;
and




     (C) will not object to the forbearance by the Term Loan Agent or the
other Term Loan Claimholders from bringing or pursuing any foreclosure
proceeding or action or any other exercise of any rights or remedies
relating to the Term Loan Priority Collateral; and




     (ii) subject to Section 5.1, the Term Loan Representative shall have
the exclusive right to enforce rights, exercise remedies (including set-off and the
right to credit bid their debt) and make determinations regarding the release,
disposition, or restrictions with respect to the Term Loan Priority Collateral
without any consultation with or the consent of the Working Capital Agent or any
other Working Capital Claimholder; provided, that




     (A) in any Insolvency or Liquidation Proceeding commenced by or against
Company or any other Grantor, the Working Capital Administrative Agent or
the Working Capital Agent may file a claim or statement of interest with
respect to the Working Capital Obligations,




     (B) the Working Capital Agent may take any action (not adverse to the
Liens on the Term Loan Priority Collateral securing the Term Loan
Obligations, or the rights of the Term Loan Agent, the other Term Loan
Claimholders, any Additional Agent or any Additional Claimholders to
exercise remedies in respect thereof) in order to preserve or protect its
Lien on the Term Loan Priority Collateral,




     (C) the Working Capital Claimholders shall be entitled to file any
necessary responsive or defensive pleadings in opposition to any motion,
claim, adversary proceeding or other pleading made by any person objecting
to or otherwise seeking the disallowance of the claims of the Working
Capital Claimholders, including without limitation any claims secured by the
Term Loan Priority Collateral, if any, in each case in accordance with the
terms of this Agreement,




     (D) in any Insolvency or Liquidation Proceeding, the Working Capital
Claimholders shall be entitled to file any pleadings, objections, motions or
agreements which assert rights or interests available to unsecured creditors
of the Grantors arising under either Bankruptcy Law or applicable
non-bankruptcy law, in each case in accordance with the terms of this
Agreement (including subject to the terms of Section 5.1 and Section 6.2),




     (E) in any Insolvency or Liquidation Proceeding, the Working Capital
Claimholders shall be entitled to vote on any plan of reorganization, except
to the extent inconsistent with the provisions hereof, and




     (F) the Working Capital Agent or any Working Capital Claimholder may
exercise any of its rights or remedies with respect to the Working Capital



26









 







Priority Collateral consistent with the terms of this Agreement.




     (c) So long as the Discharge of Working Capital Obligations has not occurred, whether
or not any Insolvency or Liquidation Proceeding has been commenced by or against Company or
any other Grantor:




     (i) any Additional Agent and the applicable Additional Claimholders:




     (A) will not exercise or seek to exercise any rights or remedies
(including any right of set-off or recoupment) with respect to any Working
Capital Priority Collateral (including, without limitation, the exercise of
any right under any lockbox agreement, account control agreement, landlord
waiver or bailee’s letter or similar agreement or arrangement to which such
Additional Agent or any such Additional Claimholder is a party) or institute
or commence (or join with any other Person in commencing) any enforcement,
collection, execution, levy or foreclosure action or proceeding with respect
to any Lien on the Working Capital Priority Collateral held by it under the
Additional Documents or otherwise; and




     (B) will not contest, protest or object to any foreclosure proceeding
or action brought by the Working Capital Agent or any Working Claimholder
with respect to the Working Capital Priority Collateral, or any other
exercise by the Working Capital Agent or any other Working Capital
Claimholder, of any rights and remedies relating to the Working Capital
Priority Collateral under the Working Capital Credit Documents or otherwise;
provided that the respective interests of such Additional Agent and other
Additional Claimholders attach to the proceeds thereof, subject to the
relative priorities described in Section 2 and Section 4;
and




     (C) will not object to the forbearance by the Working Capital Agent or
the other Working Capital Claimholders from bringing or pursuing any
foreclosure proceeding or action or any other exercise of any rights or
remedies relating to the Working Capital Priority Collateral; and




     (ii) subject to Section 5.1, the Working Capital Agent and the other
Working Capital Claimholders shall have the exclusive right to enforce rights,
exercise remedies (including set-off and the right to credit bid their debt) and
make determinations regarding the release, disposition, or restrictions with respect
to the Working Capital Priority Collateral without any consultation with or the
consent of such Additional Agent or any such other Additional Claimholder;
provided, that




     (A) in any Insolvency or Liquidation Proceeding commenced by or against
Company or any other Grantor, such Additional Agent may file a claim or
statement of interest with respect to the applicable Additional Obligations,




     (B) such Additional Agent may take any action (not adverse to the Liens
on the Working Capital Priority Collateral securing the Working Capital
Obligations, or the rights of the Working Capital Agent or the other Working
Capital Claimholders to exercise remedies in respect thereof) in order to
preserve or protect its Lien on the Working Capital Priority Collateral,



27









 






     (C) such Additional Agent and other Additional Claimholders shall be
entitled to file any necessary responsive or defensive pleadings in
opposition to any motion, claim, adversary proceeding or other pleading made
by any person objecting to or otherwise seeking the disallowance of the
claims of any of such Additional Agent and other Additional Claimholders,
including without limitation any claims secured by the Working Capital
Priority Collateral, if any, in each case in accordance with the terms of
this Agreement,




     (D) in any Insolvency or Liquidation Proceeding, such Additional Agent
and other Additional Claimholders shall be entitled to file any pleadings,
objections, motions or agreements which assert rights or interests available
to unsecured creditors of the Grantors arising under either Bankruptcy Law
or applicable non-bankruptcy law, in each case in accordance with the terms
of this Agreement (including subject to the terms of Section 5.1 and Section
6.2),




     (E) in any Insolvency or Liquidation Proceeding, such Additional Agent
and other Additional Claimholders shall be entitled to vote on any plan of
reorganization, except to the extent inconsistent with the provisions
hereof, and




     (F) such Additional Agent and other Additional Claimholders may
exercise any of its rights or remedies with respect to the Term Loan
Priority Collateral consistent with the terms of this Agreement.




     (d) So long as any Discharge of Additional Obligations has not occurred, whether or not
any Insolvency or Liquidation Proceeding has been commenced by or against Company or any
other Grantor:




     (i) the Working Capital Agent and the Working Capital Claimholders:




     (A) will not exercise or seek to exercise any rights or remedies
(including any right of set-off or recoupment) with respect to any Term Loan
Priority Collateral (including, without limitation, the exercise of any
right under any lockbox agreement, account control agreement, landlord
waiver or bailee’s letter or similar agreement or arrangement to which the
Working Capital Agent or any Working Capital Claimholder is a party) or
institute or commence (or join with any other Person in commencing) any
enforcement, collection, execution, levy or foreclosure action or proceeding
with respect to any Lien on the Term Loan Priority Collateral held by it
under the Working Capital Credit Documents or otherwise; and




     (B) will not contest, protest or object to any foreclosure proceeding
or action brought by any Additional Agent or any Additional Claimholder with
respect to the Term Loan Priority Collateral, or any other exercise by any
Additional Agent or any other Additional Claimholder, of any rights and
remedies relating to the Term Loan Priority Collateral under the Additional
Documents or otherwise; provided that the respective interests of the
Working Capital Claimholders attach to the proceeds thereof, subject to the
relative priorities described in Section 2 and Section 4;
and



28









 






     (C) will not object to the forbearance by any Additional Agent or any
other Additional Claimholder from bringing or pursuing any foreclosure
proceeding or action or any other exercise of any rights or remedies
relating to the Term Loan Priority Collateral.




     (e) In exercising rights and remedies with respect to its or their Priority Collateral,
the applicable Priority Agent and the applicable Priority Claimholders may enforce the
provisions of their respective Credit Documents and exercise Collateral remedies thereunder,
all in such order and in such manner as they may determine in the exercise of their sole
discretion. Such exercise and enforcement shall include the rights of an agent appointed by
the applicable Priority Agent and Priority Claimholders to sell or otherwise dispose of such
Priority Collateral upon foreclosure, to incur expenses in connection with such sale or
disposition, and to exercise all the rights and remedies of a secured creditor under the UCC
of any applicable jurisdiction and of a secured creditor under Bankruptcy Laws of any
applicable jurisdiction. For the avoidance of doubt, the Term Loan Representative shall
enforce rights against Collateral but shall not be entitled (in such capacity), unless
specifically authorized by the applicable Term Loan Agent or Additional Agent, to pursue any
remedy against the Company or a Grantor which is not a Collateral remedy.




     (f) Each Agent, on behalf of itself and Claimholders for which it acts as Agent, agrees
that it will not take or receive any Collateral or any proceeds of Collateral in connection
with the exercise of any right or remedy (including set-off or recoupment) with respect to
any Collateral, except to the extent such Collateral, or proceeds thereof, constitutes its
Priority Collateral, and that any such Collateral or proceeds thereof taken or received by
it that does not constitute its Priority Collateral will be paid over to the applicable
Priority Agent pursuant to Section 4.2, unless and until the relevant Discharge of
Obligations of the Priority Claimholders has occurred, except as expressly provided in
Section 6.4. Without limiting the generality of the foregoing, (i) unless and until
the Discharge of Working Capital Obligations has occurred, (x) the sole right of the Term
Loan Agent and the Term Loan Claimholders with respect to the Working Capital Priority
Collateral is to hold a Lien on the Working Capital Priority Collateral pursuant to the Term
Loan Credit Documents for the period and to the extent granted therein and to receive a
share of the proceeds thereof, if any, after the Discharge of Working Capital Obligations
has occurred in accordance with the terms of the Working Capital Credit Documents and
applicable law and (y) the sole right of any Additional Agent and the other applicable
Additional Claimholders with respect to the Working Capital Priority Collateral is to hold a
Lien on the Working Capital Priority Collateral pursuant to the Additional Documents for the
period and to the extent granted therein and to receive a share of the proceeds thereof, if
any, after the Discharge of Working Capital Obligations has occurred in accordance with the
terms of the Working Capital Credit Documents and applicable law, and (ii) unless and until
the Discharge of Term Loan Obligations and any Discharge of Additional Obligations has
occurred, the sole right of the Working Capital Agent and the Working Capital Claimholders
with respect to the Term Loan Priority Collateral is to hold a Lien on the Term Loan
Priority Collateral pursuant to the Working Capital Credit Documents for the period and to
the extent granted therein and to receive a share of the proceeds thereof, if any, after (x)
the Discharge of Term Loan Obligations has occurred in accordance with the terms of the Term
Loan Credit Documents and applicable law and (y) any Discharge of Additional Obligations has
occurred in accordance with the terms of the Additional Documents and applicable law.




     (g) Subject to the proviso in clause (ii) of Section 3.1(a), Section
3.1(b), Section 3.1(c) or Section 3.1(d), as applicable, (i) the Working
Capital Agent, for itself and on behalf of



29









 







the Claimholders for which it acts as Agent, (x) agrees that neither it nor such
Claimholders for which it acts as Agent will take any action that would hinder, delay or
impede any exercise of remedies by the Term Loan Agent and other Term Loan Claimholders or
any Additional Agent and other Additional Claimholders under the other Agreements with
respect to such Claimholders’ respective Priority Collateral, including any sale, lease,
exchange, transfer or other disposition of such Priority Collateral, whether by foreclosure
or otherwise, and (y) hereby waives any and all rights it or the Claimholders for which it
acts as Agent may have as a junior lien creditor or otherwise to object to the manner or
order in which the Term Loan Agent or the other Term Loan Claimholders, any Additional Agent
or any Additional Claimholders seek to enforce the Liens granted in their respective
Priority Collateral, and (ii) each of the Term Loan Agent and any Additional Agent, for
itself and on behalf of the Claimholders for which it acts as Agent, (x) agrees that neither
it nor such Claimholders for which it acts as Agent will take any action that would hinder,
delay or impede any exercise of remedies by the Working Capital Agent and other Working
Capital Claimholders under the other Agreements with respect to such Claimholders’
respective Priority Collateral, including any sale, lease, exchange, transfer or other
disposition of such Priority Collateral, whether by foreclosure or otherwise, and (y) hereby
waives any and all rights it or the Claimholders for which it acts as Agent may have as a
junior lien creditor or otherwise to object to the manner or order in which the Working
Capital Agent or the other Working Capital Claimholders seek to enforce the Liens granted in
their respective Priority Collateral.



     3.2 Actions Upon Breach.




     (a) If any Claimholder commences or participates in any action or proceeding against
Company, any other Grantor or the Collateral in violation of this Agreement, any Agent for
any other Claimholders may interpose in the name of such Claimholders or in the name of
Company or such Grantor the making of this Agreement as a defense or dilatory plea.




     (b) Should any Claimholder in any way take, or attempt or threaten to take, contrary
to this Agreement, any action with respect to Collateral, or fail to take any action
required by this Agreement, any Agent for any other Claimholders (in its own name or in the
name of a Grantor) may obtain relief against such offending Claimholder by injunction,
specific performance and/or other appropriate equitable relief, it being understood and
agreed by all of the Claimholders that (i) the damages from such actions may be difficult to
ascertain and may be irreparable, and (ii) the offending Claimholder waives any defense that
such other Claimholders cannot demonstrate damage or be made whole by the awarding of
damages.



SECTION 4




PAYMENTS



     4.1 Application of Proceeds.




     (a) So long as the Discharge of Term Loan Obligations and the Discharge of Additional
Obligations have not occurred, any proceeds of Term Loan Priority Collateral received in
connection with the sale or other disposition of such Collateral, or collection on such
Collateral upon the exercise of remedies, shall be applied as follows:




     first, to the payment of costs and expenses of the Term Loan Agent or
any Additional Agent, as applicable, in connection with such sale or disposition of
or
collection on such Collateral, and



30









 






     second, to the payment, on a pro rata basis, of (x) the Term Loan Obligations
in accordance with the relevant Term Loan Credit Documents until the Discharge of
Term Loan Obligations shall have occurred and (y) any Additional Obligations in
accordance with the applicable Additional Documents until the Discharge of
Additional Obligations shall have occurred.




	 	 	Upon the Discharge of Term Loan Obligations, the Term Loan Agent shall deliver to any
Additional Agent or (if there is no Additional Agent) the Working Capital Agent any proceeds
of Term Loan Priority Collateral held by it in the same form as received, with any necessary
endorsements or, as a court of competent jurisdiction may otherwise direct. Upon the
Discharge of Additional Obligations, the applicable Additional Agent shall deliver to the
Term Loan Agent or any Additional Agent or (if there is no Term Loan Agent or Additional
Agent) the Working Capital Agent any proceeds of Term Loan Priority Collateral held by it in
the same form as received, with any necessary endorsements or, as a court of competent
jurisdiction may otherwise direct. Any such proceeds of Term Loan Priority Collateral so
received by the Working Capital Agent shall be applied by the Working Capital Agent to the
Working Capital Obligations in such order as specified in the Working Capital Credit
Documents and otherwise in accordance with the Working Capital Documents. Any proceeds of
Term Loan Priority Collateral not otherwise applied in accordance with this Section
4.1(a) shall be delivered to the relevant Grantor or to whosoever may be lawfully
entitled to receive the same or as a court of competent jurisdictions may direct. The
foregoing provisions of this Section 4.1(a) shall not impose on Term Loan Agent or
any other Term Loan Claimholder, or any Additional Agent or any other Additional
Claimholder, any obligations which would conflict with prior perfected claims therein in
favor of any other person or any order or decree of any court or other governmental
authority or any applicable law.






     (b) So long as the Discharge of Working Capital Obligations has not occurred, any
proceeds of Working Capital Priority Collateral received in connection with the sale or
other disposition of such Collateral, or collection on such Collateral upon the exercise of
remedies, shall be applied by the Working Capital Agent to the Working Capital Obligations
in such order as specified in the relevant Working Capital Credit Documents. Upon the
Discharge of Working Capital Obligations, the Working Capital Agent shall deliver to the
Term Loan Representative any proceeds of Working Capital Priority Collateral held by it in
the same form as received for application in accordance with Section 4.1(a), with
any necessary endorsements or, as a court of competent jurisdiction may otherwise direct.
Upon the Discharge of Term Loan Obligations and the Discharge of the Working Capital
Obligations, the Term Loan Agent shall deliver to any Additional Agent any proceeds of
Working Capital Priority Collateral held by it in the same form as received, with any
necessary endorsements or, as a court of competent jurisdiction may otherwise direct. Upon
the Discharge of Additional Obligations related to a particular Additional Credit Facility
and the Discharge of the Working Capital Obligations, the applicable Additional Agent shall
deliver to the Term Loan Agent or any other Additional Agent any proceeds of Working Capital
Priority Collateral held by it in the same form as received, with any necessary endorsements
or, as a court of competent jurisdiction may otherwise direct. Any proceeds of Working
Capital Priority Collateral not otherwise applied in accordance with this Section
4.1(b) shall be delivered to the relevant Grantor or to whosoever may be lawfully
entitled to receive the same or as a court of competent jurisdictions may direct. The
foregoing provisions of this Section 4.1(b) shall not impose on Working Capital
Agent or any other Working Capital Claimholder any obligations which would conflict with
prior perfected claims therein in favor of



31









 







any other person or any order or decree of any court or other governmental authority or
any applicable law.




     (c) Except as set forth in this Section 4.1(c), nothing in this Agreement shall
require any Agent or any Claimholder to determine the source or priority of funds received
by it and applied to its Obligations. In the absence of fraudulent conduct, willful
misconduct or gross negligence, the sole remedy of any Agent or Claimholder for the tender
and application of proceeds of its Priority Collateral to the Obligations of the
Non-Priority Claimholders shall be to proceed directly against the Grantors unless, prior to
the application of such proceeds to the Obligations of the Non-Priority Claimholders, the
applicable Agent for the applicable Non-Priority Claimholders shall have a received a
written notice that such proceeds are (or will be) the proceeds of the Priority
Claimholders’ Priority Collateral with such notice to contain the following information: (i)
a description of the Priority Claimholders’ Priority Collateral that is being sold,
transferred or otherwise disposed of to generate the proceeds, (ii) a description of the
transaction generating the proceeds and (iii) the actual or anticipated date of such
transaction.



     4.2 Payment Turnover.




     (a) So long as the Discharge of Working Capital Obligations has not occurred, any
Working Capital Priority Collateral or proceeds thereof (together with assets or proceeds
subject to Liens referred to in Section 6.4) received by the Term Loan Agent or any
other Term Loan Claimholders, or by any Additional Agent or any other applicable Additional
Claimholders, in connection with the exercise of any right or remedy (including set-off or
recoupment) in respect of the Working Capital Priority Collateral shall be segregated and
held in trust and forthwith paid over to the Working Capital Agent in the same form as
received, with any necessary endorsements or as a court of competent jurisdiction may
otherwise direct. The Working Capital Agent is hereby authorized to make any such
endorsements as agent for the Term Loan Agent or any such Term Loan Claimholders, or such
Additional Agent or any such Additional Claimholders. This authorization is coupled with an
interest and is irrevocable until such time as this Agreement is terminated in accordance
with its terms.




     (b) So long as the Discharge of Term Loan Obligations and the Discharge of Additional
Obligations have not occurred, any Term Loan Priority Collateral or proceeds thereof
(together with assets or proceeds subject to Liens referred to in Section 6.4)
received by the Working Capital Agent or any other Working Capital Claimholders in
connection with the exercise of any right or remedy (including set-off or recoupment) in
respect of the Term Loan Priority Collateral shall be segregated and held in trust and
forthwith paid over to the Term Loan Representative for application in accordance with
Section 4.1(a) in the same form as received, with any necessary endorsements or as a
court of competent jurisdiction may otherwise direct. Each of the Term Loan Agent and any
Additional Agent is hereby authorized to make any such endorsements as agent for the Working
Capital Agent or any such Working Capital Claimholders. This authorization is coupled with
an interest and is irrevocable until such time as this Agreement is terminated in accordance
with its terms.



SECTION 5




OTHER AGREEMENTS



     5.1 Releases.




32











 






     (a) If, in connection with:




     (i) the exercise of any Term Loan Agent’s remedies in respect of the Term Loan
Priority Collateral, including any sale, lease, exchange, transfer or other
disposition of any such Collateral after an event of default under the terms of the
Term Loan Credit Documents, and as defined therein, has occurred and is continuing
by or on behalf of Term Loan Agent or a Grantor with the approval of Term Loan Agent
(a “Term Loan Collateral Exercise of Remedies”); or




     (ii) any sale, lease, exchange, transfer or other disposition of any Term Loan
Priority Collateral permitted or otherwise consented to under the terms of the Term
Loan Credit Documents (whether or not an event of default thereunder, and as defined
therein, has occurred and is continuing) (a “Term Loan Collateral Disposition”);




     the Term Loan Agent, for itself or on behalf of any of the Term Loan Claimholders,
releases any of its Liens on any part of the Term Loan Priority Collateral, then the Liens,
if any, of the Working Capital Agent, for itself or for the benefit of the Working Capital
Claimholders, on such Term Loan Priority Collateral, shall be automatically, unconditionally
and simultaneously released (the “Term Collateral Second Lien Release”) and the Working
Capital Agent, for itself and the Working Capital Claimholders shall be deemed to have
authorized the Term Loan Agent to file UCC amendments and terminations covering the Term
Loan Priority Collateral so sold or otherwise disposed of with respect to the UCC financing
statements between any Grantor and the Working Capital Agent to evidence such release and
termination and promptly upon the request of the Term Loan Agent execute and deliver such
other release documents and confirmations of the authorization to file UCC amendments and
terminations provided for herein, in each case as the Term Loan Agent may require in
connection with such sale or other disposition by the Term Loan Agent, the Term Loan Agent’s
agents or any Grantor with the consent of the Term Loan Agent to evidence and effectuate
such termination and release; provided, that, (A) any such release or UCC
amendment or termination by or on behalf of the Working Capital Agent shall not extend to or
otherwise affect any of the rights, if any, of the Working Capital Agent to the proceeds
from any such sale or other disposition of Term Loan Priority Collateral upon the Discharge
of Term Loan Obligations and the Discharge of Additional Obligations and (B) the Term
Collateral Second Lien Release shall not occur without the consent of the Working Capital
Agent (x) in the case of a Term Loan Collateral Exercise of Remedies, as to any Term Loan
Priority Collateral the net proceeds of the disposition of which will not be applied to
repay the Term Loan Obligations or Additional Obligations or (y) in the case of a Term Loan
Collateral Disposition, if the Term Loan Collateral Disposition is prohibited by any
provision of the Working Capital Credit Agreement.




     (b) If, in connection with:




     (i) the exercise of any Additional Agent’s remedies in respect of the Term Loan
Priority Collateral, including any sale, lease, exchange, transfer or other
disposition of any such Collateral after an event of default under the terms of the
applicable Additional Documents, and as defined therein, has occurred and is
continuing by or on behalf of such Additional Agent or a Grantor with the approval
of such Additional Agent (a “Additional Collateral Exercise of Remedies”); or




     (ii) any sale, lease, exchange, transfer or other disposition of any Term Loan
Priority Collateral permitted or otherwise consented to under the terms of the
applicable



33









 







Additional Documents (whether or not an event of default thereunder, and as
defined therein, has occurred and is continuing) (a “Additional Collateral
Disposition”);




     such Additional Agent, for itself or on behalf of any of the applicable Additional
Claimholders, releases any of its Liens on any part of the Term Loan Priority Collateral,
then the Liens, if any, of the Working Capital Agent, for itself or for the benefit of the
Working Capital Claimholders, on such Term Loan Priority Collateral, shall be automatically,
unconditionally and simultaneously released (the “Additional Collateral Second Lien
Release”) and the Working Capital Agent, for itself and the Working Capital Claimholders
shall be deemed to have authorized such Additional Agent to file UCC amendments and
terminations covering the Term Loan Priority Collateral so sold or otherwise disposed of
with respect to the UCC financing statements between any Grantor and the Working Capital
Agent to evidence such release and termination and promptly upon the request of such
Additional Agent execute and deliver such other release documents and confirmations of the
authorization to file UCC amendments and terminations provided for herein, in each case as
such Additional Agent may require in connection with such sale or other disposition by such
Additional Agent, such Additional Agent’s agents or any Grantor with the consent of such
Additional Agent to evidence and effectuate such termination and release; provided,
that, (A) any such release or UCC amendment or termination by or on behalf of the
Working Capital Agent shall not extend to or otherwise affect any of the rights, if any, of
the Working Capital Agent to the proceeds from any such sale or other disposition of Term
Loan Priority Collateral upon the Discharge of Term Loan Obligations and the Discharge of
Additional Obligations and (B) the Additional Collateral Second Lien Release shall not occur
without the consent of the Working Capital Agent (x) in the case of an Additional Collateral
Exercise of Remedies, as to any Term Loan Priority Collateral the net proceeds of the
disposition of which will not be applied to repay the Term Loan Obligations or Additional
Obligations or (y) in the case of a Additional Collateral Disposition, if the Additional
Collateral Disposition is prohibited by any provision of the Working Capital Credit
Agreement.




     (c) Until the Discharge of Term Loan Obligations and the Discharge of Additional
Obligations occurs, the Working Capital Agent, for itself and on behalf of the Working
Capital Claimholders, hereby irrevocably constitutes and appoints the Term Loan
Representative and any officer or agent of the Term Loan Representative, with full power of
substitution, as its true and lawful attorney-in-fact with full irrevocable power and
authority in the place and stead of the Working Capital Agent or any such Claimholder or in
the Term Loan Representative’s own name, from time to time in the Term Loan Representative’s
discretion, for the purpose of carrying out the terms of Section 5.1(a), to take any
and all appropriate action and to execute any and all documents and instruments which may be
necessary to accomplish the purposes of Section 5.1(a), including any endorsements
or other instruments of transfer or release.




     (d) Until the Discharge of Term Loan Obligations occurs, to the extent that the Term
Loan Agent for itself and on behalf of the Term Loan Claimholders has released any Lien on
Term Loan Priority Collateral and any such Liens are later reinstated or the Term Loan
Agent, on behalf of the Term Loan Claimholders, obtain any new Liens from Grantors on Term
Loan Priority Collateral, then the Working Capital Agent for itself and on behalf of the
Working Capital Claimholders shall be granted a Lien on any such Term Loan Priority
Collateral or have its Lien reinstated, as the case may be, subject to the priorities set
forth in Section 2. Until the Discharge of Additional Obligations occurs, to the
extent that the applicable Additional Agent for itself and on behalf of the applicable
Additional Claimholders has released any Lien on Term Loan Priority Collateral and any such
Liens are later reinstated or such Additional Agent, on behalf of such Additional
Claimholders, obtain any new Liens from Grantors, then the Working



34









 







Capital Agent for itself and on behalf of the Working Capital Claimholders shall be
granted a Lien on any such Term Loan Priority Collateral or have its Lien reinstated, as the
case may be, subject to the priorities set forth in Section 2.




     (e) If, in connection with:




     (i) the exercise of any Working Capital Agent’s remedies in respect of the
Working Capital Priority Collateral, including any sale, lease, exchange, transfer
or other disposition of any such Collateral after an event of default under the
terms of the Working Capital Credit Documents, and as defined therein, has occurred
and is continuing by or on behalf of Working Capital Agent or a Grantor with the
approval of Working Capital Agent (a “Working Capital Collateral Exercise of
Remedies”); or




     (ii) any sale, lease, exchange, transfer or other disposition of any Working
Capital Priority Collateral permitted or otherwise consented to under the terms of
the Working Capital Credit Documents (whether or not an event of default thereunder,
and as defined therein, has occurred and is continuing) (a “Working Capital
Collateral Disposition”);




     the Working Capital Agent, for itself or on behalf of any of the Working Capital
Claimholders, releases any of its Liens on any part of the Working Capital Priority
Collateral, then the Liens, if any, of the Term Loan Agent, for itself or for the benefit of
the Term Loan Claimholders, and of any Additional Agent, for itself or for the benefit of
the applicable Additional Claimholders, on such Working Capital Priority Collateral, shall
be automatically, unconditionally and simultaneously released (the “Working Capital
Collateral Second Lien Release”) and




     (1) the Term Loan Agent, for itself and the Term Loan Claimholders shall be
deemed to have authorized the Working Capital Agent to file UCC amendments and
terminations covering the Working Capital Priority Collateral so sold or otherwise
disposed of with respect to the UCC financing statements between any Grantor and the
Term Loan Agent to evidence such release and termination and promptly upon the
request of the Working Capital Agent execute and deliver such other release
documents and confirmations of the authorization to file UCC amendments and
terminations provided for herein, in each case as the Working Capital Agent may
require in connection with such sale or other disposition by the Working Capital
Agent, the Working Capital Agent’s agents or any Grantor with the consent of the
Working Capital Agent to evidence and effectuate such termination and release;
provided, that, (A) any such release or UCC amendment or termination
by or on behalf of the Term Loan Agent shall not extend to or otherwise affect any
of the rights, if any, of the Term Loan Agent to the proceeds from any such sale or
other disposition of Working Capital Priority Collateral upon the Discharge of
Working Capital Obligations and (B) the Working Capital Second Lien Release shall
not occur without the consent of the Term Loan Agent (x) in the case of a Working
Capital Collateral Exercise of Remedies, as to any Working Capital Priority
Collateral the net proceeds of the disposition of which will not be applied to repay
the Working Capital Obligations or (y) in the case of a Working Capital Collateral
Disposition, if the Working Capital Collateral Disposition is prohibited by any
provision of the Term Loan Credit Agreement, and




     (2) any Additional Agent, for itself and the applicable Additional



35









 







Claimholders shall be deemed to have authorized the Working Capital Agent to
file UCC amendments and terminations covering the Working Capital Priority
Collateral so sold or otherwise disposed of with respect to the UCC financing
statements between any Grantor and such Additional Agent to evidence such release
and termination and promptly upon the request of the Working Capital Agent execute
and deliver such other release documents and confirmations of the authorization to
file UCC amendments and terminations provided for herein, in each case as the
Working Capital Agent may require in connection with such sale or other disposition
by the Working Capital Agent, the Working Capital Agent’s agents or any Grantor with
the consent of the Working Capital Agent to evidence and effectuate such termination
and release; provided, that, (A) any such release or UCC amendment
or termination by or on behalf of such Additional Agent shall not extend to or
otherwise affect any of the rights, if any, of such Additional Agent to the proceeds
from any such sale or other disposition of Working Capital Priority Collateral upon
the Discharge of Working Capital Obligations and (B) the Working Capital Second Lien
Release shall not occur without the consent of such Additional Agent (x) in the case
of a Working Capital Collateral Exercise of Remedies, as to any Working Capital
Priority Collateral the net proceeds of the disposition of which will not be applied
to repay the Working Capital Obligations or (y) in the case of a Working Capital
Collateral Disposition, if the Working Capital Collateral Disposition is prohibited
by any provision of the applicable Additional Credit Facility.




     (f) In the event that Proceeds of Collateral are received in connection with any sale,
lease, exchange, transfer or other disposition of any such Collateral that directly or
indirectly involves a combination of Working Capital Priority Collateral or Term Loan
Priority Collateral, the Working Capital Agent, the Term Loan Agent and any Additional Agent
shall use commercially reasonable efforts in good faith to allocate the Proceeds received in
connection with such any sale, lease, exchange, transfer or other disposition of any such
Collateral to the Working Capital Priority Collateral and the Term Loan Priority Collateral.
If the Working Capital Agent, the Term Loan Agent and any Additional Agent are unable to
agree on such allocation within ten (10) days (or such other period of time to which the
Working Capital Agent, the Term Loan Agent and any Additional Agent mutually agree) of the
consummation of such sale, lease, exchange, transfer or other disposition, the portion of
such Proceeds that shall be allocated as Proceeds of Working Capital Priority Collateral for
purposes of this Agreement shall be an amount equal to the sum of the net book value of the
Accounts and Inventory included in the Collateral so disposed of (determined at the time of
such sale, lease, exchange, transfer or other disposition) with the balance of the Proceeds
to be allocated to the Term Loan Priority Collateral; provided however, this Section
5.1(f) shall not apply in the event that the Term Loan Agent or the other Term Loan
Claimholders, the Working Capital Agent or the other Working Capital Claimholders or any
Additional Agent or the other applicable Additional Claimholders did not consent to the
sale, lease, exchange, transfer or other disposition.




     (g) Until the Discharge of Working Capital Obligations occurs, the Term Loan Agent, for
itself and on behalf of the Term Loan Claimholders, hereby irrevocably constitutes and
appoints the Working Capital Agent and any officer or agent of the Working Capital Agent,
with full power of substitution, as its true and lawful attorney-in-fact with full
irrevocable power and authority in the place and stead of the Term Loan Agent or any such
Claimholder or in the Working Capital Agent’s own name, from time to time in the Working
Capital Agent’s discretion, for the purpose of carrying out the terms of Section
5.1(e), to take any and all appropriate action and to execute any and all documents and
instruments which may be necessary to accomplish the purposes of Section 5.1(e),
including any endorsements or other instruments of transfer or release.



36









 






Until the Discharge of Working Capital Obligations occurs, each Additional Agent, for
itself and on behalf of the applicable Additional Claimholders, hereby irrevocably
constitutes and appoints the Working Capital Agent and any officer or agent of the Working
Capital Agent, with full power of substitution, as its true and lawful attorney-in-fact with
full irrevocable power and authority in the place and stead of such Additional Agent or any
such Claimholder or in the Working Capital Agent’s own name, from time to time in the
Working Capital Agent’s discretion, for the purpose of carrying out the terms of Section
5.1(e), to take any and all appropriate action and to execute any and all documents and
instruments which may be necessary to accomplish the purposes of Section 5.1(e),
including any endorsements or other instruments of transfer or release. Each authorization
under this Section 5.1(g) is coupled with an interest and is irrevocable until such
time as this Agreement is terminated in accordance with its terms.




     (h) Until the Discharge of Working Capital Obligations occurs, to the extent that the
Working Capital Agent for itself and on behalf of the Working Capital Claimholders has
released any Lien on Working Capital Priority Collateral and any such Liens are later
reinstated or the Working Capital Agent, on behalf of the Working Capital Claimholders,
obtain any new Liens from Grantors on any Working Capital Priority Collateral, then the Term
Loan Agent for itself and on behalf of the Term Loan Claimholders shall be granted a Lien on
any such Working Capital Priority Collateral or have its Lien reinstated, as the case may
be, and each Additional Agent for itself and on behalf of the applicable Additional
Claimholders shall be granted a Lien on any such Working Capital Priority Collateral or have
its Lien reinstated, as the case may be, in each case subject to the priorities set forth in
Section 2.



     5.2 Insurance. The Working Capital Agent, the Term Loan Agent and any Additional Agent shall
be named as additional insureds with respect to liability insurance policies maintained from time
to time by any Grantor, and the Working Capital Agent, the Term Loan Agent, each Additional Agent
or the Control Agent (on behalf of the Agent Parties and Claimholders), as their interests may
appear, shall be named as a loss payee under any casualty insurance policies maintained from time
to time by any Grantor, in each case as and to the extent required in the applicable Credit
Documents. As between the applicable Priority Agent and the applicable Priority Claimholders, on
the one hand, and the applicable Non-Priority Agent and the applicable Non-Priority Claimholders on
the other hand, the applicable Priority Agent and the applicable Priority Claimholders shall have
the sole and exclusive right, in accordance with and subject to the terms of the applicable Credit
Documents, (a) to adjust or settle any insurance policy or claim in the event of any loss with
respect to their respective Priority Collateral and (b) to approve any award granted in any
condemnation or similar proceeding affecting their respective Priority Collateral. All proceeds of
any such policy and any such award in respect of any such Priority Collateral that are payable to
the Agents shall be paid to the applicable Priority Agent (on a ratable basis or as may be
otherwise agreed as between the Term Loan Agent and any Additional Agent, in the case of Term Loan
Priority Collateral) for the benefit of the applicable Priority Claimholders to the extent required
under their respective Credit Documents, and thereafter to the applicable Non-Priority Agent (on a
ratable basis or as may be otherwise agreed as between the Term Loan Agent and any Additional
Agent, in the case of Term Loan Priority Collateral) for the benefit of the applicable Non-Priority
Claimholders to the extent required under their respective Credit Documents, and then to the owner
of the subject property or as a court of competent jurisdiction may otherwise direct. If any
Claimholder shall, at any time, receive any proceeds of any such insurance policy or any such award
in contravention of this Agreement, it shall pay such proceeds over to the Priority Agent in
accordance with the terms of Section 4.2. In the event that an Agent is named as loss
payee on property which is not its Priority Collateral, such Agent agrees to comply with the
instructions of the Priority Agent with respect to such collateral (a) in adjusting or settling any
insurance policy or claim in the event of any loss with respect to such Priority Collateral and (b)
to approving any award granted in any condemnation or similar proceeding affecting such Priority



37









 




Collateral.




     5.3 Control Agent for Perfection.




     (a) The Term Loan Agent, on behalf of itself and the Term Loan Claimholders, and the
Working Capital Agent, on behalf of itself and the Working Capital Claimholders, and any
Additional Agent, on behalf of itself and the applicable Additional Claimholders, each
hereby appoint Wells Fargo Bank, National Association as its collateral agent (in such
capacity, together with any successor in such capacity appointed by the Term Loan Agent, the
Working Capital Agent and any Additional Agent, the “Control Agent”) for the limited purpose
of acting as the agent on behalf of the Term Loan Agent (on behalf of itself and the Term
Loan Claimholders), the Working Capital Agent (on behalf of itself and the Working Capital
Claimholders) and any Additional Agent (on behalf of itself and the applicable Additional
Claimholders) with respect to the Control Collateral. The Control Agent accepts such
appointment and agrees to hold the Control Collateral in its possession or control (or in
the possession or control of its agents or bailees) as Control Agent for the benefit of the
Term Loan Agent (on behalf of itself and the Term Loan Claimholders) and the Working Capital
Agent (on behalf of itself and the Working Capital Claimholders) and any Additional Agent
(on behalf of itself and the applicable Additional Claimholders) and any permitted assignee
of any thereof solely for the purpose of perfecting the security interest granted to such
parties in such Control Collateral, subject to the terms and conditions of this Section
5.3. The Term Loan Agent, the Working Capital Agent and any Additional Agent hereby
acknowledge that the Control Agent shall obtain “control” under the UCC over each Controlled
Account as contemplated by the Term Loan Collateral Documents, the Working Capital
Collateral Documents and the applicable Additional Collateral Documents for the benefit of
both the Term Loan Agent (on behalf of itself and the Term Loan Claimholders) and the
Working Capital Agent (on behalf of itself and the Working Capital Claimholders) and any
Additional Agent (on behalf of itself and the applicable Additional Claimholders) pursuant
to a control agreements relating to a Controlled Account if requested by the Working Capital
Agent, the Term Loan Agent and any Additional Agent to act in such capacity.




     (b) The Control Agent, the Term Loan Agent, on behalf of itself and the Term Loan
Claimholders, and the Working Capital Agent, on behalf of itself and the Working Capital
Claimholders, and any Additional Agent, on behalf of itself and the applicable Additional
Claimholders, each hereby agrees that the applicable Priority Agent shall have the sole and
exclusive right and authority to give instructions to, and otherwise direct, the Control
Agent in respect of the Control Collateral constituting such Priority Agent’s constituents’
Priority Collateral or any control agreement with respect to any Control Collateral until
the date upon which the Discharge of Obligations shall have occurred with respect to the
Obligations owed to Claimholders for whom the applicable Priority Agent acts as Agent, and
none of the Non-Priority Claimholders will impede, hinder, delay or interfere with the
exercise of such rights by the Priority Agent in any respect. The Grantors hereby jointly
and severally agree to pay, reimburse, indemnify and hold harmless the Control Agent to the
same extent and on the same terms that the Grantors are required to do so for the Working
Capital Agent in accordance with the Working Capital Credit Agreement (if the Control Agent
is the Working Capital Agent) or for the Term Loan Agent in accordance with the Term Loan
Credit Agreement (if the Control Agent is the Term Loan Agent) or for any Additional Agent
in accordance with the applicable Additional Credit Facility (if the Control Agent is such
Additional Agent). The Working Capital Claimholders hereby jointly and severally agree to
pay, reimburse, indemnify and hold harmless the Control Agent to the same extent and on the
same terms that the Working Capital Claimholders are required to do so for the Working
Capital Agent in accordance with the



38









 







Working Capital Credit Agreement. The Term Loan Claimholders hereby jointly and
severally agree to pay, reimburse, indemnify and hold harmless the Control Agent to the same
extent and on the same terms that the Term Loan Claimholders are required to do so for the
Term Loan Agent in accordance with the Term Loan Credit Agreement. The applicable
Additional Claimholders hereby jointly and severally agree to pay, reimburse, indemnify and
hold harmless the Control Agent to the same extent and on the same terms that the such
Additional Claimholders are required to do so for the applicable Additional Agent in
accordance with the applicable Additional Credit Facility.




     (c) Except as set forth below, the Control Agent shall have no obligation whatsoever to
the Agents or any other Claimholder including, without limitation, any obligation to assure
that the Control Collateral is genuine or owned by any Grantor or one of their respective
Subsidiaries or to preserve rights or benefits of any Person except as expressly set forth
in this Section 5.3. In acting on behalf of the Agents and other Claimholders, the
duties or responsibilities of the Control Agent under this Section 5.3 shall be
limited solely (i) to physically holding the Control Collateral delivered to the Control
Agent by any Grantor as agent for the Term Loan Agent (on behalf of itself and the Term Loan
Claimholders), the Working Capital Agent (on behalf of itself and the Working Capital
Claimholders) and any Additional Agent (on behalf of itself and the applicable Additional
Claimholders), in each case for purposes of perfecting the Lien held by the Term Loan Agent,
the Working Capital Agent and each Additional Agent, (ii) exercising control of Deposit
Accounts on which it has control and forwarding the funds on deposit therein to the Agent
for the applicable Priority Claimholders, in each case as and to the extent provided in the
Credit Documents and (iii) delivering such collateral as set forth in Section
5.3(e).




     (d) The Control Agent shall not have, by reason of this Agreement or any other document
a fiduciary relationship in respect of the Term Loan Agent or any Term Loan Claimholder, the
Working Capital Agent or any Working Capital Claimholder, or any Additional Agent or any
Additional Claimholder.




     (e) (i) Upon the Discharge of Term Loan Obligations and the Discharge of Additional
Obligations, the Control Agent shall deliver any Control Collateral in the possession of the
Control Agent to the Working Capital Agent together with any necessary endorsements (or
otherwise allow the Working Capital Agent to obtain control of such Control Collateral) or
as a court of competent jurisdiction may otherwise direct and the Working Capital Agent
shall accept and succeed to the role of the Control Agent as the agent for perfection on
such Control Collateral.




     (ii) Upon the Discharge of Working Capital Obligations and the Discharge of
Additional Obligations, the Control Agent shall deliver any Control Collateral in
the possession of the Control Agent to the Term Loan Agent together with any
necessary endorsements (or otherwise allow the Term Loan Agent to obtain control of
such Control Collateral) or as a court of competent jurisdiction may otherwise
direct and the Term Loan Agent shall accept and succeed to the role of the Control
Agent as the agent for perfection on such Control Collateral.




     (iii) Upon the Discharge of Working Capital Obligations and the Discharge of
Term Loan Obligations, if there is at the time any Additional Agent, the Control
Agent shall deliver any Control Collateral in the possession of the Control Agent to
such Additional Agent (or otherwise allow such Additional Agent for such Additional
Claimholders to obtain control of such Control Collateral) or as a court of
competent



39









 







jurisdiction may otherwise direct and such Additional Agent shall accept and
succeed to the role of the Control Agent as the agent for perfection on such Control
Collateral, provided that if there is at the time more than one Additional
Agent, the Control Agent shall retain such Control Collateral.




     (f) The Control Agent shall have an unfettered right to resign as Control Agent upon 30
days notice to each Agent Party. If upon the effective date of such resignation no
successor to the Control Agent has been appointed by the Agent Parties, the Control Agent
shall deliver to the Working Capital Agent (if then an Agent Party) or to another Agent (if
the Working Capital Agent is not then an Agent Party) the Control Collateral together with
any necessary endorsements (or otherwise allow such Agent to obtain control of such Control
Collateral) or as a court of competent jurisdiction may otherwise direct and such Agent
shall accept and succeed to the role of the Control Agent as the agent for perfection on the
Control Collateral.




     (g) Notwithstanding the foregoing, each Agent, for and on behalf of itself and the
Claimholders represented thereby, agrees to hold all Control Collateral in its possession,
custody, or control (or in the possession, custody, or control of agents or bailees
therefor) as agent for the other Claimholders solely for the purpose of perfecting the
security interest granted to each other Agent Party or Claimholder in such Control
Collateral, subject to the terms and conditions of this Section. Such Agent shall not have
any obligation whatsoever to the other Claimholders to assure that such Control Collateral
is genuine or owned by any Grantor or any other Person or to preserve rights or benefits of
any Person therein. The duties or responsibilities of such Agent under this Section 5.3(g)
are and shall be limited solely to holding or maintaining control of such Control Collateral
as agent for the other Claimholders for purposes of perfecting the Lien held by the
Claimholders. Such Agent is not and shall not be deemed to be a fiduciary of any kind for
any Claimholder or any other Person.



     5.4 Access to Term Loan Priority Collateral.




     (a) In the event the Term Loan Representative shall acquire control or possession of
any of the Term Loan Priority Collateral or shall, through the exercise of remedies under
the Term Loan Credit Documents or any Additional Documents or otherwise, sell any of the
Term Loan Priority Collateral to any third party (a “Third Party Purchaser”), such
Agent shall, to the extent permitted by law, permit the Working Capital Agent (or shall
require as a condition of such sale to the Third Party Purchaser that the Third Party
Purchaser agree to permit the Working Capital Agent), at the Working Capital Agent’s option:
(i) to enter any of the premises of any Grantor (or Third Party Purchaser) constituting
such Term Loan Priority Collateral under such control or possession (or sold to a Third
Party Purchaser) in order to inspect, remove or take any action with respect to the Working
Capital Priority Collateral or to enforce the Working Capital Agent’s rights with respect
thereto, including, but not limited to, the examination and removal of Working Capital
Priority Collateral and the examination and duplication of any Collateral (to the extent not
Working Capital Priority Collateral) under such control or possession (or sold to a Third
Party Purchaser) consisting of books and records of any Grantor related to the Working
Capital Priority Collateral; (ii) to use the Collateral for the purpose of manufacturing or
processing raw materials or work-in-process into finished inventory; (iii) to use any of the
Collateral under such control or possession (or sold to a Third Party Purchaser) consisting
of computers or other data processing equipment related to the storage or processing of
records, documents or files pertaining to the Working Capital Priority Collateral and use
any Collateral under such control or possession (or sold to a Third Party Purchaser)
consisting of other equipment to handle, deal with or dispose of any Working Capital
Priority Collateral pursuant to



40









 







the Working Capital Agent’s rights as set forth in the Working Capital Credit
Documents, the UCC of any applicable jurisdiction and other applicable law, and (iv) to use
any of the Collateral consisting of intellectual property rights owned or controlled by (x)
the Term Loan Agent or the other Term Loan Claimholders or (y) such Additional Agent or the
other applicable Additional Claimholders, as applicable, as is or may be necessary for the
Working Capital Agent to deal with the Working Capital Priority Collateral (including the
sale or other disposition thereof). Such use by Working Capital Agent of the Collateral
shall not be on an exclusive basis.




     (b) The Working Capital Agent hereby acknowledges, for itself and on behalf of the
other Working Capital Claimholders that, during the period any Working Capital Priority
Collateral shall be under control or possession of the Term Loan Agent or any Additional
Agent, such Agent shall not be obligated to take any action to protect or to procure
insurance with respect to such Working Capital Priority Collateral, it being understood that
such Agent shall have no responsibility for loss or damage to the Working Capital Priority
Collateral (other than as a result of the gross negligence or willful misconduct of such
Agent or its agents, as determined by a final non-appealable judgment of a court of
competent jurisdiction) and that all the risk of loss or damage to the Working Capital
Priority Collateral shall remain with the Working Capital Claimholders; provided,
that to the extent insurance obtained by such Agent provides coverage for risks relating to
access to or use of Working Capital Priority Collateral, the Working Capital Agent will be
made an additional named insured thereunder.




     (c) The rights of Working Capital Agent set forth in Section 5.4(a)(i)-(iii)
above shall continue until the later of (i) 180 days after the date Working Capital Agent
first receives written notice from the Term Loan Representative that it has control or
possession of the Term Loan Priority Collateral at issue and (ii) the sale or other
disposition of such Priority Collateral by the Term Loan Representative or its constituents.
Such time period shall be tolled during the pendency of any Insolvency Proceeding of any
Grantor or other proceedings pursuant to which the Working Capital Claimholders, the Term
Loan Claimholders and any Additional Claimholders are effectively stayed from enforcing
their rights against the Working Capital Priority Collateral. In no event shall any Term
Loan Claimholder or any Additional Claimholder take any action to interfere, limit or
restrict the rights of Working Capital Agent or the exercise of such rights by Working
Capital Agent to have access to or to use any of such Collateral pursuant to Section
5.4(a) prior to the expiration of such period.




     (d) During the actual occupation by the Working Capital Agent or its agents or
representatives, of any real property constituting Term Loan Priority Collateral during the
access and use period permitted by Section 5.4(a) above, the Working Capital
Claimholders shall be obligated to pay to the Term Loan Claimholders and any Additional
Claimholders any rent payable to third parties and all utilities, taxes and other
maintenance and operating costs of such real property during any such period of actual
occupation by the Working Capital Agent or its agents or representatives, but only to the
extent the Term Loan Claimholders or such Additional Claimholders are required to pay or are
otherwise paying any such rent, utilities, taxes or other maintenance and operating costs
during the actual occupation of such real property by the Working Capital Agent or its
agents or representatives.



     5.5 Consent to Limited License. The Term Loan Agent, for itself and on behalf of the other
Term Loan Claimholders, and any Additional Agent, for itself and on behalf of the applicable other
Additional Claimholders, (i) acknowledges and consents to the grant to the Working Capital Agent by
the Company (and the other Grantors, as applicable) of a limited, non-exclusive royalty-free
license on the terms set forth in Section 12.2(e) of the Initial Working Capital Credit Agreement
in effect as of the date



41









 




hereof or on substantially equivalent terms in the case of any Working Capital Credit
Agreement other than the Initial Working Capital Credit Agreement (the “Limited License”) and (ii)
agrees that its Liens in the Term Loan Priority Collateral shall be subject to the Limited License.
The Term Loan Agent further agrees that, in connection with any foreclosure sale conducted by the
Term Loan Agent in respect of Term Loan Priority Collateral of the type described in the Limited
License (the “IP Collateral”), (x) any notice required to be given by the Term Loan Agent in
connection with such foreclosure shall contain an acknowledgement that the Term Loan Agent’s Lien
is subject to the Limited License, (y) the Term Loan Agent shall deliver a copy of the Limited
License to any purchaser at such foreclosure and provide written notice to such purchaser that the
Term Loan Agent’s Lien and the purchaser’s rights in the transferred IP Collateral are subject to
the Limited License and (z) the purchaser shall acknowledge in writing that it purchased the IP
Collateral subject to the Limited License. Each Additional Agent further agrees that, in
connection with any foreclosure sale conducted by such Additional Agent in respect of IP
Collateral, (x) any notice required to be given by such Additional Agent in connection with such
foreclosure shall contain an acknowledgement that such Additional Agent’s Lien is subject to the
Limited License, (y) such Additional Agent shall deliver a copy of the Limited License to any
purchaser at such foreclosure and provide written notice to such purchaser that such Additional
Agent’s Lien and the purchaser’s rights in the transferred IP Collateral are subject to the Limited
License and (z) the purchaser shall acknowledge in writing that it purchased the IP Collateral
subject to the Limited License.




SECTION 6




INSOLVENCY OR LIQUIDATION PROCEEDINGS



     6.1 Use of Cash Collateral and Financing Issues. If Company or any other Grantor shall be
subject to any Insolvency or Liquidation Proceeding and the Priority Agent shall desire to permit
the use of cash collateral which constitutes such Priority Agent’s constituents’ Priority
Collateral or to permit Company or any other Grantor to obtain financing secured by such Priority
Collateral (and not by any Collateral which does not constitute such Priority Agent’s Priority
Collateral), from one or more of the Claimholders for whom such Priority Agent acts as Agent, under
Section 363 or Section 364 of the Bankruptcy Code or any similar Bankruptcy Law (such financing, a
“DIP Financing”), then each Non-Priority Agent, on behalf of itself and the Non-Priority
Claimholders, (A) agrees that it will raise no objection to such use of cash collateral or DIP
Financing nor support any other Person objecting to, such sale, use, or lease of cash collateral or
DIP Financing and will not request any form of adequate protection or any other relief in
connection therewith (except as agreed by the Priority Agent or to the extent expressly permitted
by Section 6.4) and, to the extent the Liens securing the Priority Obligations are
subordinated to or pari passu with the Liens securing such DIP Financing, each Non-Priority
Agent will subordinate its Liens in such Priority Collateral to (x) the Liens securing such DIP
Financing (and all Obligations relating thereto), (y) any adequate protection Liens provided to the
Priority Claimholders and (z) any “carve-out” for professional or United States Trustee fees agreed
to by the Priority Agent; (B) agrees that, at the option of the Priority Agent, an order approving
such DIP Financing or cash collateral usage may be entered even if the order provides that any
claim arising under section 507(b) of the Bankruptcy Code as a result of a failure of adequate
protection of the liens of the Non-Priority Claimholders in Collateral which is not its Priority
Collateral may not be paid from the proceeds of claims arising under sections 544, 546, 547, 548 or
550 of the Bankruptcy Code; and (C) agree that notice received two (2) calendar days prior to the
entry of an order approving such usage of cash collateral or approving such DIP Financing shall be
adequate notice; provided that the foregoing shall not prohibit any Non-Priority Agent or
the Non-Priority Claimholders from objecting solely to any provisions in any agreement regarding
the use of cash collateral or any DIP Financing relating to, describing or requiring any provision
or content of a plan of reorganization other than any provisions requiring that the DIP Financing
be paid in full in cash. The Term Loan Agent and Term Loan Claimholders and any



42









 




Additional Agent and any Additional Claimholders shall not, directly or indirectly, offer to
provide, support any other Person in providing, provide or seek to provide DIP Financing secured by
Liens equal or senior to the Liens on the Working Capital Priority Collateral, without the prior
written consent of the Working Capital Agent. The Working Capital Agent and Working Capital
Claimholders shall not, directly or indirectly, offer to provide, support any other Person in
providing, provide or seek to provide DIP Financing secured by Liens equal or senior to the Liens
on the Term Loan Priority Collateral, without the prior written consent of the Term Loan Agent and
any Additional Agent. The Term Loan Agent and the Term Loan Claimholders shall not, directly or
indirectly, offer to provide, support any other Person in providing, provide or seek to provide DIP
Financing secured by Liens equal or senior to the Liens on the Term Loan Priority Collateral,
without the prior written consent of any Additional Agent. Any Additional Agent and such other
applicable Additional Claimholders shall not, directly or indirectly, offer to provide, support any
other Person in providing, provide or seek to provide DIP Financing secured by Liens equal or
senior to the Liens on the Term Loan Priority Collateral, without the prior written consent of the
Term Loan Agent and any other Additional Agent. All references to any Collateral hereunder shall
be construed to include any assets arising after the commencement of the case under the Bankruptcy
Code of the same type or category as such Collateral.




     6.2 Sale Issues. Each Agent, on behalf of itself and the Claimholders for whom it acts as
Agent, agrees that it will raise no objection to or oppose a sale or other disposition of any
Collateral which does not constitute its Priority Collateral free and clear of its Liens or other
claims under Section 363 of the Bankruptcy Code if the Priority Agent has consented to such sale or
disposition of such assets so long as the interests of such Agent and the Claimholders for whom it
acts as Agent in such Collateral attach to the proceeds thereof, subject to the terms of this
Agreement. If requested by any Priority Agent in connection therewith, each Non-Priority Agent
shall affirmatively consent to such a sale or disposition.



     6.3 Relief from the Automatic Stay. Each Agent, on behalf of itself and the Claimholders for
whom it acts as Agent, agrees that none of them shall (i) seek relief from the automatic stay or
any other stay in any Insolvency or Liquidation Proceeding in respect of any Collateral which does
not constitute its Priority Collateral, without the prior written consent of the Priority Agent, or
(ii) oppose any request by any Priority Agent or any Priority Claimholder to seek relief from the
automatic stay or any other stay in any Insolvency or Liquidation Proceeding in respect of their
respective Priority Collateral.




	6.4	 	Adequate Protection.






     (a) Each Agent, on behalf of itself and the Claimholders for whom it acts as Agent, may
seek adequate protection of its interest in its respective Priority Collateral and each
other Agent, on behalf of itself and the Claimholders for whom it acts as Agent, agrees that
none of them shall contest (or support any other person contesting) (i) any such request for
adequate protection by any Priority Agent with respect to its Priority Collateral or (ii)
any objection by any Priority Agent or the Priority Claimholders to any motion, relief,
action or proceeding based on any Priority Agent or the Priority Claimholders claiming a
lack of adequate protection of their interests in their respective Priority Collateral.
Each Agent acknowledges and agrees that any superpriority administrative expense claim
granted to such Agent or arising under 11 U.S.C. § 507(b) as adequate protection of its
interest in its respective Priority Collateral shall be pari passu with any superpriority
administrative expense claim granted to any other Agent as adequate protection of their
interest in its respective Priority Collateral.




     (b) Each Non-Priority Agent, on behalf of itself and the Claimholders for whom it acts
as Agent, may seek adequate protection of its junior interest in Collateral, subject to the



43









 







provisions of this Agreement, only if (A) any Priority Agent is granted adequate protection
in the
form of a replacement Lien on post-petition collateral of the same type as the Priority
Collateral, and (B) such additional protection requested by such Agent is in the form of a
replacement Lien on such post-petition collateral of the same type as the Priority
Collateral, which Lien, if granted, will be subordinated to the adequate protection Liens
granted in favor of such Priority Agent on such post-petition collateral and the Liens
securing any DIP financing (and all Obligations relating thereto) secured by such Priority
Collateral on the same basis as the Liens of such Non-Priority Agent on such Priority
Collateral are subordinated to the Liens of such Priority Agent on such Priority Collateral
under this Agreement. In the event that a Non-Priority Agent, on behalf of itself or any of
the Claimholders for whom it acts as Agent, seeks or requests (or is otherwise granted)
adequate protection of its junior interest in Collateral in the form of a replacement Lien
on additional collateral in any form, then such Agent, on behalf of itself and the
Claimholders for whom it acts as Agent, agrees that (i) any other Non-Priority Agent also
holding a junior interest in such Collateral shall also be granted a replacement lien on
such additional collateral as adequate protection of such junior interest in such Collateral
and that such Non-Priority Agent’s replacement Lien shall be pari passu to the replacement
Lien of such other Non-Priority Agent and (ii) each Priority Agent shall also be granted a
replacement Lien on such additional collateral as adequate protection of its senior interest
in Collateral and that such Agent’s replacement Lien shall be subordinated to the
replacement Lien of each such Priority Agent. If any Agent or Claimholder receives as
adequate protection a Lien on post-petition assets of the same type as its pre-petition
Priority Collateral, then such post-petition assets shall also constitute Priority
Collateral of such Person to the extent of any allowed claim secured by such adequate
protection Lien.




     (c) Each Non-Priority Agent on behalf of itself and the Non-Priority Claimholders for
whom it acts as Agent, may seek and receive additional adequate protection of its junior
interest in Collateral, subject to the provisions of this Agreement, in the form of a
superpriority administrative expense claim, including a claim arising under 11 U.S.C. §
507(b), which superpriority administrative expense claim shall be junior in all respects to
any superpriority administrative expense claim granted to the Priority Claimholders with
respect to such Collateral and pari passu in all respects with any superpriority
administrative expense claim granted to any other Non-Priority Claimholders with respect to
such Collateral. In the event that a Non-Priority Agent, on behalf of itself and the
Non-Priority Claimholders for whom it acts as Agent, seeks or receives protection of its
junior interest in Collateral and is granted a superpriority administrative expense claim,
including a claim arising under 11 U.S.C. § 507(b), then such Non-Priority Agent, on behalf
of itself and the Non-Priority Claimholders for whom it acts as Agent, agrees that (i) the
Priority Claimholders shall receive a superpriority administrative expense claim which shall
be senior in all respects to the superpriority administrative expense claim granted to such
Agent with respect to such Collateral and (ii) any other Non-Priority Claimholders shall
receive a superpriority administrative expense claim which shall be pari passu in all
respects with the superpriority administrative expense claim granted to such Agent with
respect to such Collateral.



     6.5 Separate Grants of Security and Separate Classification. Each of the Grantors and each of
the Claimholders acknowledges and agrees with respect to each class of Priority Collateral that (i)
the grants of Liens pursuant to the Working Capital Collateral Documents, on the one hand, and the
Term Loan Collateral Documents and any Additional Collateral Documents, on the other hand,
constitute separate and distinct grants of Liens and (ii) because of, among other things, their
differing rights in the Collateral, the Working Capital Obligations, on the one hand, and the Term
Loan Obligations and any Additional Obligations, on the other hand, are fundamentally different
from one another and must be separately classified in any plan of reorganization proposed or
adopted in an Insolvency or Liquidation



44









 







Proceeding. To further effectuate the intent of the
parties as provided in the immediately preceding
sentence, if it is held that the claims of (x) the Working Capital Claimholders and (y) the
Term Loan Claimholders and/or any Additional Claimholders in respect of any Priority Collateral,
constitute only one secured claim (rather than separate classes of senior and junior secured
claims), then the Priority Claimholders shall be entitled to receive, in addition to amounts
distributed to them from, or in respect of, their Priority Collateral in respect of principal,
pre-petition interest and other claims, all amounts owing in respect of post-petition interest,
fees, costs and other charges, irrespective of whether a claim for such amounts is allowed or
allowable in such Insolvency or Liquidation Proceeding, before any distribution from, or in respect
of, any such Priority Collateral is made in respect of the claims held by the Non-Priority
Claimholders, with the Non-Priority Claimholders hereby acknowledging and agreeing to turn over to
the Priority Claimholders amounts otherwise received or receivable by them to the extent necessary
to effectuate the intent of this sentence, even if such turnover has the effect of reducing the
claim or recovery of the Non-Priority Claimholders.



     6.6 Post-Petition Claims. No Agent, nor any of the Claimholders for which it acts as Agent,
shall oppose or seek to challenge (a) any claim by any Priority Agent or any Priority Claimholder
for allowance in any Insolvency or Liquidation Proceeding of Obligations consisting of
post-petition interest, fees, costs, charges or expenses to the extent of the value of the lien of
such Priority Agent in such Priority Agent’s Priority Collateral, without regard to the existence
of the Lien of any Non-Priority Agent in such Collateral, or (b) any claim by any Non-Priority
Agent or any Non-Priority Claimholder for allowance in any Insolvency or Liquidation Proceeding of
Obligations consisting of post-petition interest, fees, costs, charges or expenses to the extent of
the value of the lien of such Non-Priority Agent in such Collateral.



     6.7 Avoidance Issues. If any Priority Claimholder is required in any Insolvency or
Liquidation Proceeding, or otherwise, to turn over or otherwise pay to the estate of any Grantor
any amount in respect of any Working Capital Obligation, any Term Loan Obligation or any Additional
Obligation, as applicable (a “Recovery”), then such Claimholder shall be entitled to a
reinstatement of its Obligations with respect to all such recovered amounts. If this Agreement
shall have been terminated prior to such Recovery, this Agreement shall be reinstated in full force
and effect, and such prior termination shall not diminish, release, discharge, impair or otherwise
affect the obligations of the parties hereto from such date of reinstatement. Priority Collateral
or proceeds thereof received by any Non-Priority Agent or any other Non-Priority Claimholder after
a Discharge of Obligations of the Priority Claimholders and prior to the reinstatement of such
Obligations shall be delivered to the Priority Agent (in the case of the Term Loan Agent and any
Additional Agent, on a ratable basis or on such other basis as such Agents may agree) upon such
reinstatement in accordance with Section 4.2.



     6.8 Expense Claims. Each Non-Priority Agent, for itself and on behalf of the Claimholders for
whom it acts as Agent, agrees that it will not (i) contest the payment of fees, expenses or other
amounts to any Priority Agent or any Priority Claimholder under Section 506(b) of the Bankruptcy
Code or otherwise to the extent of the value of the lien of such Priority Agent in such Priority
Agent’s Priority Collateral and to the extent provided for in the applicable Credit Agreement or
(ii) assert or enforce any claim under Section 506(c) of the Bankruptcy Code senior to or on parity
with the Lien of any Priority Agent for costs or expenses of preserving or disposing of such
Priority Agent’s Priority Collateral.



     6.9 Effectiveness in Insolvency or Liquidation Proceedings. This Agreement, which the parties
hereto expressly acknowledge is a “subordination agreement” under Section 510(a) of the Bankruptcy
Code, shall be effective before, during and after the commencement of an Insolvency or Liquidation
Proceeding. All references in this Agreement to any Grantor shall include such Person as a
debtor-in-possession and any receiver or trustee for such Person in any Insolvency or Liquidation
Proceeding.



45









 





SECTION 7




RELIANCE; WAIVERS; ETC.



     7.1 Non-Reliance




     (a) The consent by the Working Capital Claimholders to the execution and delivery of
the Term Loan Credit Documents and the grant to the Term Loan Agent on behalf of the Term
Loan Claimholders of a Lien on the Working Capital Priority Collateral, and to the execution
and delivery of any Additional Documents and the grant to any Additional Agent on behalf of
any applicable Additional Claimholders of a Lien on such Collateral, and all loans and other
extensions of credit made or deemed made on and after the date hereof by the Working Capital
Claimholders to the Grantors, shall be deemed to have been given and made in reliance upon
this Agreement. The consent by the Term Loan Claimholders to the execution and delivery of
the Working Capital Credit Documents and the grant to the Working Capital Agent on behalf of
the Working Capital Claimholders of a Lien on the Term Loan Priority Collateral, and to the
execution and delivery of any Additional Documents and the grant to any Additional Agent on
behalf of any applicable Additional Claimholders of a Lien on such Collateral, and all loans
and other extensions of credit made or deemed made on and after the date hereof by the Term
Loan Claimholders to the Grantors, shall be deemed to have been given and made in reliance
upon this Agreement. The consent by any Additional Claimholders to the execution and
delivery of any Additional Documents (other than such Additional Documents executed by or on
behalf of such Additional Claimholders) and the grant to any Additional Agent (other than
any Additional Agent that acts as Agent for such Additional Claimholders) on behalf of any
other applicable Additional Claimholders of a Lien on the Collateral, and all loans and
other extensions of credit made or deemed made on and after the date hereof by such
Additional Claimholders to the Grantors, shall be deemed to have been given and made in
reliance upon this Agreement.




     (b) The Term Loan Agent and the Term Loan Administrative Agent, on behalf of themselves
and the other Term Loan Claimholders, acknowledge that they and the Term Loan Claimholders
have, independently and without reliance on the Working Capital Agent or any other Working
Capital Claimholder, or on any Additional Agent or any other Additional Claimholder, and
based on documents and information deemed by them appropriate, made their own credit
analysis and decision to enter into the Term Loan Credit Agreement, the other Term Loan
Credit Documents, this Agreement and the transactions contemplated hereby and thereby and
they will continue to make their own credit decision in taking or not taking any action
under the Term Loan Credit Agreement, the other Term Loan Credit Documents or this
Agreement. The Working Capital Agent and the Working Capital Administrative Agent, on
behalf of themselves and the other Working Capital Claimholders, acknowledge that they and
the Working Capital Claimholders have, independently and without reliance on the Term Loan
Agent or any other Term Loan Claimholder, or on any Additional Agent or any other Additional
Claimholder, and based on documents and information deemed by them appropriate, made their
own credit analysis and decision to enter into the Working Capital Credit Agreement, the
other Working Capital Credit Documents, this Agreement and the transactions contemplated
hereby and thereby and they will continue to make their own credit decision in taking or not
taking any action under the Working Capital Credit Agreement, the other Working Capital
Credit Documents or this Agreement. Each Additional Agent, on behalf of itself and any
other applicable Additional Claimholders, acknowledges that it and the applicable Additional
Claimholders have,



46









 







independently and without reliance on the Working Capital Agent or any
Working Capital
Claimholder, or the Term Loan Agent or any Term Loan Claimholder, or any other
Additional Agent or any other applicable Additional Claimholders for which such other
Additional Agent acts as Agent, and based on documents and information deemed by them
appropriate, made their own credit analysis and decision to enter into the applicable
Additional Documents, this Agreement and the transactions contemplated hereby and thereby
and they will continue to make their own credit decision in taking or not taking any action
under the Additional Documents or this Agreement.



     7.2 No Warranties or Liability.



     (a) The Working Capital Agent, on behalf of itself and the Working Capital Claimholders,
acknowledges and agrees that (i) the Term Loan Agent and the Term Loan Claimholders have made no
express or implied representation or warranty, including with respect to the execution, validity,
legality, completeness, collectibility or enforceability of any of the Term Loan Credit Documents,
the ownership of any Collateral or the perfection or priority of any Liens thereon and (ii) any
Additional Agent and any Additional Claimholders have made no express or implied representation or
warranty, including with respect to the execution, validity, legality, completeness, collectibility
or enforceability of any of the Additional Documents, the ownership of any Collateral or the
perfection or priority of any Liens thereon.



     (b) The Term Loan Agent, on behalf of itself and the Term Loan Claimholders, acknowledges and
agrees that (i) the Working Capital Agent and the Working Capital Claimholders have made no express
or implied representation or warranty, including with respect to the execution, validity, legality,
completeness, collectibility or enforceability of any of the Working Capital Credit Documents, the
ownership of any Collateral or the perfection or priority of any Liens thereon and (ii) any
Additional Agent and any Additional Claimholders have made no express or implied representation or
warranty, including with respect to the execution, validity, legality, completeness, collectibility
or enforceability of any of the Additional Documents, the ownership of any Collateral or the
perfection or priority of any Liens thereon.



     (c) Each Additional Agent, on behalf of itself and the applicable Additional Claimholders,
acknowledges and agrees that (i) the Working Capital Agent and the Working Capital Claimholders
have made no express or implied representation or warranty, including with respect to the
execution, validity, legality, completeness, collectibility or enforceability of any of the Working
Capital Credit Documents, the ownership of any Collateral or the perfection or priority of any
Liens thereon, (ii) the Term Loan Agent and the Term Loan Claimholders have made no express or
implied representation or warranty, including with respect to the execution, validity, legality,
completeness, collectibility or enforceability of any of the Term Loan Credit Documents, the
ownership of any Collateral or the perfection or priority of any Liens thereon and (iii) any other
Additional Agent and any other applicable Additional Claimholders for which such other Additional
Agent acts as Agent have made no express or implied representation or warranty, including with
respect to the execution, validity, legality, completeness, collectibility or enforceability of any
of the Additional Documents, the ownership of any Collateral or the perfection or priority of any
Liens thereon.



     (d) The Term Loan Claimholders will be entitled to manage and supervise their respective loans
and extensions of credit under the Term Loan Credit Documents in accordance with law and as they
may otherwise, in their sole discretion, deem appropriate. The Additional Claimholders will be
entitled to manage and supervise their respective loans and extensions of credit under any
applicable Additional Documents in accordance with law and as they may otherwise, in their sole
discretion, deem appropriate. The Working Capital Claimholders will be entitled to manage and
supervise their respective loans and



47









 







extensions of credit under the Working Capital Documents in
accordance with law and as they may
otherwise, in their sole discretion, deem appropriate.



     (e) Neither any Agent nor any Claimholder for which such Agent acts as Agent shall have any
duty to any other Agent or any Claimholder for which such other Agent acts as Agent to act or
refrain from acting in a manner which allows, or results in, the occurrence or continuance of an
event of default or default under any agreements with Company or any Grantor (including the Working
Capital Credit Documents, the Term Loan Credit Documents and any Additional Documents), regardless
of any knowledge thereof which they may have or be charged with.



     7.3 No Waiver of Lien Priorities.




     (a) No right of the Working Capital Agent and the Working Capital Claimholders, the
Term Loan Agent and the Term Loan Claimholders, any Additional Agent and any Additional
Claimholders, the Control Agent or any of them to enforce any provision of this Agreement or
their respective Credit Documents shall at any time in any way be prejudiced or impaired by
any act or failure to act on the part of the Company or any other Grantor or by any act or
failure to act by such party, or by any noncompliance by any Person with the terms,
provisions and covenants of this Agreement or their respective Credit Documents, regardless
of any knowledge thereof which such party may have or be otherwise charged with.




     (b) Without in any way limiting the generality of the foregoing paragraph (but subject
to the rights of the Company and the other Grantors under the applicable Credit Documents),
the Working Capital Agent and the Working Capital Claimholders, the Term Loan Agent and the
Term Loan Claimholders, and any Additional Agent and any Additional Claimholders and any of
them may, at any time and from time to time in accordance with their respective Credit
Documents or applicable law, without the consent of, or notice to, the other Claimholders
and without incurring any liabilities to the other Claimholders and without impairing or
releasing the Lien priorities and other benefits provided in this Agreement (even if any
right of subrogation or other right or remedy of the other Claimholders is affected,
impaired or extinguished thereby) do any one or more of the following:




     (i) make loans and advances to any Grantor or issue, guaranty or obtain letters
of credit for account of any Grantor or otherwise extend credit to any Grantor, in
any amount and on any terms, whether pursuant to a commitment or as a discretionary
advance and whether or not any default or event of default or failure of condition
is then continuing (subject, in each case, to any limitations expressly set forth in
this Agreement);




     (ii) change the manner, place or terms of payment or change or extend the time
of payment of, or amend, renew, exchange, increase or alter, the terms of any of
their respective Obligations or guaranty thereof or any liability of the Company or
any other Grantor, or any liability incurred directly or indirectly in respect
thereof (including any increase in or extension of their respective Obligations,
without any restriction as to the amount, tenor or terms of any such increase or
extension, subject to any limitations expressly set forth in this Agreement) or,
subject to the provisions of this Agreement, otherwise amend, renew, exchange,
extend, modify or supplement in any manner any Liens held by such Agent or such
Claimholders, their respective Obligations or any of their respective Credit
Documents; provided, however, the foregoing shall not prohibit any other
Agent and any other Claimholders from enforcing, consistent with the other



48









 







terms of
this Agreement, any right arising under their respective Credit Agreement or
other Credit Documents as a result of any Grantor’s violation of the terms
hereof;




     (iii) subject to the provisions of this Agreement, sell, exchange, release,
surrender, realize upon, enforce or otherwise deal with in any manner and in any
order any part of the Collateral or any liability of the Company or any other
Grantor to such Claimholders or such Agent, or any liability incurred directly or
indirectly in respect thereof;




     (iv) settle or compromise their respective Obligations or any portion thereof
or any other liability of the Company or any other Grantor or any security therefor
or any liability incurred directly or indirectly in respect thereof and apply any
sums by whomsoever paid and however realized to any liability (including their
respective Obligations) in any manner or order;




     (v) subject to the restrictions set forth in this Agreement, exercise or delay
in or refrain from exercising any right or remedy against the Company or any
security or any other Grantor or any other Person, elect any remedy and otherwise
deal freely with Company, any other Grantor or any Collateral and any security and
any guarantor or any liability of the Company or any other Grantor to such
Claimholders or any liability incurred directly or indirectly in respect thereof;




     (vi) take or fail to take any Lien securing their respective Obligations or any
other collateral security for such Obligations or take or fail to take any action
which may be necessary or appropriate to ensure that any Lien securing such
Obligations or any other Lien upon any property is duly enforceable or perfected or
entitled to priority as against any other Lien, provided that Liens taken in
violation of Section 2.5 shall be subject to the provisions of Section 2.5; or




     (vii) otherwise release, discharge or permit the lapse of any or all Liens
securing their respective Obligations or any other Liens upon any property at any
time securing any such Obligations.




     (c) Each Agent, on behalf of itself and the Claimholders for which it acts as Agent,
also agrees that no Priority Agent or Priority Claimholders shall have any liability to such
Agent or the Claimholders for which it acts as Agent, and such Agent on behalf of itself and
the Claimholders for which it acts as Agent, hereby waives all claims against any Priority
Agent and any Priority Claimholders, arising out of any and all actions which such Priority
Agent or such Priority Claimholders may take or permit or omit to take with respect to their
Priority Collateral. Each Agent, on behalf of itself and the Claimholders for which it acts
as Agent, agrees that no Priority Agent or Priority Claimholders shall have any duty to them
in respect of the maintenance or preservation of any Priority Agent’s Priority Collateral.




     (d) Each Agent, on behalf of itself and the Claimholders for which it acts as Agent,
agrees not to assert and hereby waives, to the fullest extent permitted by law, any right to
demand, request, plead or otherwise assert or otherwise claim the benefit of, any
marshalling, appraisal, valuation or other similar right that may otherwise be available
under applicable law with respect to Collateral that does not constitute its Priority
Collateral or any other similar rights a junior secured creditor may have under applicable
law.



49









 





     7.4 Obligations Unconditional. All rights, interests, agreements and obligations of the
Working Capital Agent and the Working Capital Claimholders, the Term Loan Agent and the Term
Loan Claimholders, and any Additional Agent and any Additional Claimholders, respectively,
hereunder shall remain in full force and effect irrespective of:




     (a) any lack of validity or enforceability of any Working Capital Credit Documents, any
Term Loan Credit Documents or any Additional Documents or any setting aside or avoidance of
any Lien;




     (b) except as otherwise set forth in this Agreement, any change in the time, manner or
place of payment of, or in any other terms of, all or any of the Working Capital
Obligations, the Term Loan Obligations or any Additional Obligations, or any amendment or
waiver or other modification, including any increase in the amount thereof, whether by
course of conduct or otherwise, of the terms of any Working Capital Credit Document, any
Term Loan Credit Document or any Additional Document;




     (c) any exchange of any security interest in any Collateral or any other collateral, or
any amendment, waiver or other modification, whether in writing or by course of conduct or
otherwise, of all or any of the Working Capital Obligations, the Term Loan Obligations or
any Additional Obligations or any guarantee thereof;




     (d) the commencement of any Insolvency or Liquidation Proceeding in respect of the
Company or any other Grantor; or




     (e) any other circumstances which otherwise might constitute a defense available to, or
a discharge of, the Company or any other Grantor in respect of the Working Capital
Obligations, the Term Loan Obligations or the Additional Obligations.



     7.5 Certain Notices.




     (a) Promptly upon the Discharge of Working Capital Obligations, the Working Capital
Agent shall deliver written notice confirming same to the remaining Agent Parties;
provided that the failure to give any such notice shall not result in any liability
of the Working Capital Agent or the other Working Capital Claimholders hereunder or in the
modification, alteration, impairment, or waiver of the rights of any party hereunder.
Promptly upon the Discharge of Term Loan Obligations, the Term Loan Agent shall deliver
written notice confirming same to the remaining Agent Parties; provided that the
failure to give any such notice shall not result in any liability of the Term Loan Agent or
the other Term Loan Claimholders hereunder or in the modification, alteration, impairment,
or waiver of the rights of any party hereunder. Promptly upon the Discharge of Additional
Obligations, the applicable Additional Agent shall deliver written notice confirming same to
the Working Capital Agent, the Term Loan Agent and any other Additional Agent;
provided that the failure to give any such notice shall not result in any liability
of such Additional Agent or the applicable Additional Claimholders or in the modification,
alteration, impairment, or waiver of the rights of any party hereunder.




     (b) No later than five (5) days prior to the commencement by any Priority Agent of any
enforcement action or the exercise of any remedy with respect to its Priority Collateral
(including by way of a public or private sale of such Priority Collateral), such Priority
Agent shall notify the other Agent Parties of such intended action; provided that
the failure to give any such notice shall not result in any liability hereunder of such
Priority Agent or the Priority



50









 







Claimholders for which it acts as Agent or in the
modification, alteration, impairment, or waiver
of the rights of any party hereunder.



SECTION 8




MISCELLANEOUS



     8.1 Conflicts. In the event of any conflict between the provisions of this Agreement and the
provisions of the Term Loan Credit Documents, the Working Capital Credit Documents or any
Additional Documents, the provisions of this Agreement shall govern and control. The parties
hereto acknowledge that the terms of this Agreement are not intended to negate any specific rights
granted to the Company or any other Grantor in the Term Loan Credit Documents, the Working Capital
Credit Documents or any Additional Documents.



     8.2 Effectiveness; Continuing Nature of this Agreement; Severability. This Agreement shall
become effective when executed and delivered by the parties hereto. This is a continuing agreement
of lien subordination and the Working Capital Claimholders, the Term Loan Claimholders and any
Additional Claimholders may each continue, at any time and without notice to the other
Claimholders, to extend credit and other financial accommodations and lend monies to or for the
benefit of the Company or any Grantor constituting Working Capital Obligations, Term Loan
Obligations or Additional Obligations, as applicable, in reliance hereof. The terms of this
Agreement shall survive, and shall continue in full force and effect, in any Insolvency or
Liquidation Proceeding. Any provision of this Agreement which is prohibited or unenforceable in
any jurisdiction shall not invalidate the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in
any other jurisdiction. All references to the Company or any other Grantor shall include the
Company or such Grantor as debtor and debtor-in-possession and any receiver or trustee for the
Company or any other Grantor (as the case may be) in any Insolvency or Liquidation Proceeding.
This Agreement shall terminate and be of no further force and effect upon the Discharge of Working
Capital Obligations (in accordance with the provisions hereof), except for Section 5.3 and
the provisions of this Section 8 as they relate to Section 5.3, and subject to
reinstatement in accordance with Section 6.7.



     8.3 Amendments; Waivers. No amendment, modification or waiver of any of the provisions of
this Agreement by the Working Capital Agent, the Term Loan Agent or any Additional Agent, or
(subject to the following sentence) the Company or any other Grantor, shall be deemed to be made
unless the same shall be in writing signed on behalf of each party hereto or its authorized agent
and each waiver, if any, shall be a waiver only with respect to the specific instance involved and
shall in no way impair the rights of the parties making such waiver or the obligations of the other
parties to such party in any other respect or at any other time. Notwithstanding the foregoing,
neither the Company nor any other Grantor shall have any right to consent to or approve any
amendment, modification or waiver of any provision of this Agreement except to the extent its
rights or obligations are directly affected; provided that (x) no amendment, modification
or waiver of any provision of this Agreement, and no consent to any departure therefrom by any
party hereto, that changes, alters, modifies or otherwise affects any right or obligation of, or
otherwise adversely affects in any manner, any Additional Agent that is not then a party hereto, or
any Additional Claimholder not then represented by an Additional Agent that is then a party hereto
(including but not limited to any change, alteration, modification or other effect upon any right
or obligation of or other adverse effect upon any such Additional Agent or Additional Claimholder
that may at any subsequent time become a party hereto or beneficiary hereof) shall be effective
unless it is consented to in writing by the Company (regardless of whether any such Additional
Agent or Additional Claimholder ever becomes a party hereto or beneficiary hereof) and (y) any



51









 







amendment, modification or waiver of any provision of this Agreement that would have the effect,
directly or indirectly, through any reference in any Credit Document to this Agreement or
otherwise, of waiving, amending, supplementing or otherwise modifying any Credit Document, or any
term or provision thereof, or any right or obligation of the Company or any other Grantor
thereunder or in respect thereof, shall not be given such effect except pursuant to a written
instrument executed by the Company and each other affected Grantor.



     8.4 Information Concerning Financial Condition of Company and its Subsidiaries.




     (a) The Term Loan Agent and the Term Loan Claimholders, and the Working Capital Agent
and the Working Capital Claimholders, and each Additional Agent and applicable Additional
Claimholders, respectively, shall each be responsible for keeping themselves informed of (a)
the financial condition of Company and its Subsidiaries and all endorsers or guarantors of
the Term Loan Obligations, the Working Capital Obligations or any Additional Obligations and
(b) all other circumstances bearing upon the risk of nonpayment of the Term Loan
Obligations, the Working Capital Obligations or any Additional Obligations. Each Agent and
the Claimholders for which it acts as Agent shall have no duty to advise any other Agent or
any Claimholder for which any other Agent acts as Agent of information known to it or them
regarding such condition or any such circumstances or otherwise. In the event that any
Agent or any of the Claimholders for which it acts as Agent, in its or their sole
discretion, undertakes at any time or from time to time to provide any such information to
any other Agent or any Claimholder for which such other Agent acts as Agent, it or they
shall be under no obligation (w) to make, and such party shall not make, any express or
implied representation or warranty, including with respect to the accuracy, completeness,
truthfulness or validity of any such information so provided, (x) to provide any additional
information or to provide any such information on any subsequent occasion, (y) to undertake
any investigation or (z) to disclose any information which, pursuant to accepted or
reasonable commercial finance practices, such party wishes to maintain confidential or is
otherwise required to maintain confidential.




     (b) The Grantors agree that any information with respect to the Control Collateral
provided by any Grantor to the Control Agent expressly and solely in its capacity as Control
Agent may be shared by the Control Agent with any Claimholder upon its request therefor,
notwithstanding any request or demand by such Grantor that such information be kept
confidential; provided, that such information shall otherwise be subject to the
respective confidentiality provisions in the Working Capital Credit Agreement, the Term Loan
Credit Agreement and each Additional Credit Facility, as applicable, and to any other
confidentiality agreement or undertaking to which such Claimholder is party or otherwise
subject.



     8.5 Subrogation. Each Agent, for itself and on behalf of the Claimholders for which it acts
as Agent, hereby waives any rights of subrogation it may acquire as a result of any payment
hereunder until the Discharge of Obligations has occurred with respect to each other group of
Claimholders.



     8.6 Notice of Term Loan Representative Change. Until an Agent (other than the existing Term
Loan Representative) receives written notice from the existing Term Loan Representative, in
accordance with Section 8.8 of this Agreement, of a change in the identity of the Term Loan
Representative, such Agent shall be entitled to act as if the existing Term Loan Representative is
in fact the Term Loan Representative. Each Agent (other than the existing Term Loan
Representative) shall be entitled to rely upon any written notice of a change in the identity of
the Term Loan Representative which facially appears to be from the then existing Term Loan
Representative and is delivered in accordance with Section 8.8 and such Agent shall not be required
to inquire into the veracity or genuineness of such



52









 







notice. Each existing Term Loan
Representative from time to time agrees to give prompt written notice
to each Agent of any change in the identity of the Term Loan Representative.



     8.7 Governing Law; Choice of Forum; Service of Process; Jury Trial Waiver.




     (a) This Agreement and the rights and obligations of the parties hereto under this
Agreement shall be governed by and construed in accordance with the internal laws of the
State of New York without giving effect to the rules or principles of conflict of laws
thereof to the extent that the same are not mandatorily applicable by statute and would
cause the application of the laws of any other jurisdiction.




     (b) The parties hereto irrevocably consent and submit to the non-exclusive jurisdiction
of the courts of the State of New York sitting in New York County, New York and the United
States District Court of the Southern District of New York, whichever the Agents may elect,
and to the fullest extent permitted by law, waive any objection based on venue or forum non
conveniens with respect to any action instituted therein arising under this Agreement or any
of the other Credit Document and agree that any dispute with respect to any such matters
shall be heard only in the courts described above (except that the Agents and the
Claimholders reserve the right to bring any action or proceeding against any Grantor or its
or their property in the courts of any other jurisdiction which such Agent or Claimholder
deems necessary or appropriate in order to realize on the Collateral or to otherwise enforce
its rights against any Grantor or its or their property).




     (c) Each Grantor to the fullest extent permitted by law hereby waives personal service
of any and all process upon it and consents that all such service of process may be made by
certified mail (return receipt requested) directed to its address set forth herein and
service so made shall be deemed to be completed five (5) days after the same shall have been
so deposited in the U.S. mails, or, at the Agents’ option, by service upon any Grantor in
any other manner provided under the rules of any such courts.




     (d) EACH PARTY HERETO HEREBY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND,
ACTION OR CAUSE OF ACTION ARISING UNDER THIS AGREEMENT OR ANY OF THE OTHER CREDIT DOCUMENTS
OR IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO
IN RESPECT OF THIS AGREEMENT OR ANY OF THE OTHER CREDIT DOCUMENTS OR THE TRANSACTIONS
RELATED HERETO OR THERETO IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, AND
WHETHER IN CONTRACT, TORT, EQUITY OR OTHERWISE. EACH PARTY HERETO HEREBY AGREES AND
CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT
TRIAL WITHOUT A JURY AND THAT ANY PARTY HERETO MAY FILE AN ORIGINAL COUNTERPART OF A COPY OF
THIS AGREEMENT WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE PARTIES HERETO TO
THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.




     (e) The Agents and Claimholders shall not have any liability to any Grantor (whether in
tort, contract, equity or otherwise) for losses suffered by such Grantor in connection with,
arising out of, or in any way related to the transactions or relationships contemplated by
this Agreement, or any act, omission or event occurring in connection herewith, except to
the extent it is determined by a final and non-appealable judgment or court order binding on
the applicable Agent and Claimholders that the losses were the result of acts or omissions
constituting gross



53









 







negligence or willful misconduct. Each Grantor: (i) certifies that
neither the Agents, the
Claimholders nor any representative, agent or attorney acting for or on behalf of the
Agents or the Claimholders has represented, expressly or otherwise, that the Agents and the
Claimholders would not, in the event of litigation, seek to enforce any of the waivers
provided for in this Agreement or any of the other Credit Documents and (ii) acknowledges
that in entering into this Agreement and the other Credit Documents, the Agents and the
Claimholders are relying upon, among other things, the waivers and certifications set forth
in this Section 8.7 and elsewhere herein and therein.



     8.8 Notices. All notices to the Control Agent, the Term Loan Claimholders, the Working
Capital Claimholders and any applicable Additional Claimholders permitted or required under this
Agreement shall also be sent to the Working Capital Agent, the Term Loan Agent and the applicable
Additional Agent, respectively. Unless otherwise specifically provided herein, any notice or other
communication herein required or permitted to be given shall be in writing and may be personally
served, electronically mailed or sent by courier service or U.S. mail and shall be deemed to have
been given when delivered in person or by courier service, upon receipt of electronic mail or four
Business Days after deposit in the U.S. mail (registered or certified, with postage prepaid and
properly addressed). For the purposes hereof, the addresses of the parties hereto shall be as set
forth below each party’s name on the signature pages hereto, or, as to each party, at such other
address as may be designated by such party in a written notice to all of the other parties.



     8.9 Further Assurances. The Working Capital Agent, on behalf of itself and the Working
Capital Claimholders, the Term Loan Agent, on behalf of itself and the Term Loan Claimholders, any
Additional Agent, on behalf of itself and the applicable Additional Claimholders, and the Company,
agree that each of them shall take such further action and shall execute and deliver such
additional documents and instruments (in recordable form, if requested) as the Working Capital
Agent, the Term Loan Agent or such Additional Agent may reasonably request to effectuate the terms
of and the lien priorities contemplated by this Agreement.



     8.10 Designation of Additional Indebtedness; Joinder of Additional Agents.



     (a) The Company may designate any Additional Indebtedness complying with the requirements of
the definition of “Additional Indebtedness” as Additional Indebtedness for purposes of this
Agreement, upon complying with the following conditions:




	(i)	 	One or more Additional Agents for one or more Additional Claimholders in respect of such
Additional Indebtedness shall have executed the Additional Indebtedness Joinder with respect
to such Additional Indebtedness, and the Company or any such Additional Agent shall have
delivered such executed Additional Indebtedness Joinder to each Agent Party;






	(ii)	 	at least five Business Days prior to delivery of the Additional Indebtedness Joinder, the
Company shall have delivered to each Agent Party complete and correct copies of any Additional
Credit Facility, Additional Guarantees and Additional Collateral Documents that will govern
such Additional Indebtedness upon giving effect to such designation (which may be unexecuted
copies of Additional Documents to be executed and delivered concurrently with the
effectiveness of such designation);






	(iii)	 	The Company shall have executed and delivered to each Agent Party the Additional
Indebtedness Designation with respect to such Additional Indebtedness;




54









 












	(iv)	 	all state and local stamp, recording, filing, intangible and similar taxes or fees (if any)
that are
payable in connection with the inclusion of such Additional Indebtedness under this
Agreement shall have been paid and reasonable evidence thereof shall have been given to each
Agent Party; and






	(v)	 	No Event of Default shall have occurred and be continuing.





     (b) Upon satisfaction of the foregoing conditions, the designated Additional Indebtedness
shall constitute “Additional Indebtedness”, any Additional Credit Facility under which such
Additional Indebtedness is or may be incurred shall constitute an “Additional Credit Facility”, any
holder of such Additional Indebtedness or other applicable Additional Creditor shall constitute an
“Additional Creditor”, and any Additional Agent for any such Additional Creditor shall constitute
an “Additional Agent”, for all purposes under this Agreement. The date on which the foregoing
conditions shall have been satisfied with respect to such Additional Indebtedness is herein called
the “Additional Effective Date”. Prior to the Additional Effective Date with respect to such
Additional Indebtedness, all references herein to Additional Indebtedness shall be deemed not to
take into account such Additional Indebtedness, and the rights and obligations of each Agent Party
shall be determined on the basis that such Additional Indebtedness is not then designated. On and
after the Additional Effective Date with respect to such Additional Indebtedness, all references
herein to Additional Indebtedness shall be deemed to take into account such Additional
Indebtedness, and the rights and obligations of each Agent Party shall be determined on the basis
that such Additional Indebtedness is then designated.



     (c) In connection with any designation of Additional Indebtedness pursuant to this Section
8.10, each Agent Party agrees (x) to execute and deliver any amendments, amendments and
restatements, restatements or waivers of or supplements to or other modifications to, any Term
Collateral Documents, Working Capital Collateral Documents, or Additional Collateral Documents, as
applicable, and any blocked account, control or other agreements relating to any security interest
in Control Collateral, and to make or consent to any filings or take any other actions, as may be
reasonably deemed by the Company to be necessary or reasonably desirable for any Lien on any
Collateral to secure such Additional Indebtedness to become a valid and perfected Lien (with the
priority contemplated by this Agreement), and (y) otherwise to reasonably cooperate to effectuate a
designation of Additional Indebtedness pursuant to this Section 8.10 (including without limitation,
if requested, by executing an acknowledgment of any Additional Indebtedness Joinder or of the
occurrence of any Additional Effective Date), in each event at the sole costs of the Company and
the Grantors.



     8.11 Binding on Successors and Assigns. This Agreement shall be binding upon the Working
Capital Agent, the other Working Capital Claimholders, the Term Loan Agent, the other Term Loan
Claimholders, each Additional Agent and the other Additional Claimholders, the Control Agent and
their respective successors and assigns.



     8.12 Specific Performance. Each Agent may demand specific performance of this Agreement.
Each Agent, on behalf of itself and the Claimholders for which it acts as Agent, hereby irrevocably
waives any defense based on the adequacy of a remedy at law and any other defense which might be
asserted to bar the remedy of specific performance in any action which may be brought by any other
Agent.



     8.13 Headings. Section headings in this Agreement are included herein for convenience of
reference only and shall not constitute a part of this Agreement for any other purpose or be given
any substantive effect.



55









 





     8.14 Counterparts. This Agreement may be executed in counterparts (and by different
parties hereto in different counterparts), each of which shall constitute an original, but all
of which when taken together shall constitute a single contract. Delivery of an executed
counterpart of a signature page of this Agreement or any document or instrument delivered in
connection herewith by telecopy shall be effective as delivery of a manually executed counterpart
of this Agreement or such other document or instrument, as applicable.



     8.15 Authorization. By its signature, each Person executing this Agreement on behalf of a
party hereto represents and warrants to the other parties hereto that it is duly authorized to
execute this Agreement.



     8.16 No Third Party Beneficiaries. This Agreement and the rights and benefits hereof shall
inure to the benefit of each of the parties hereto and its respective successors and assigns and
shall inure to the benefit of each of the Working Capital Agent, the other Working Capital
Claimholders, the Term Loan Agent, the other Term Loan Claimholders, each Additional Agent, the
other Additional Claimholders, the Control Agent and the Company and the other Grantors. No other
Person shall have or be entitled to assert rights or benefits hereunder.



     8.17 Provisions Solely to Define Relative Rights. The provisions of this Agreement are and
are intended solely for the purpose of defining the relative rights of the Working Capital
Claimholders, the Term Loan Claimholders and any Additional Claimholders, respectively. Nothing in
this Agreement is intended to or shall impair the rights of Company or any other Grantor, or the
obligations of Company or any other Grantor to pay the Working Capital Obligations, the Term Loan
Obligations and any Additional Obligations as and when the same shall become due and payable in
accordance with their terms.



     8.18 Future Grantors. Any Domestic Subsidiary of the Company from time to time party to a
Credit Document shall become a “Grantor” hereunder for all purposes of this Agreement upon
execution and delivery by such Domestic Subsidiary of a joinder agreement substantially in the form
of Exhibit D hereto.



[Signature Pages Follow]




56









 





     IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first
written above.



	 	 	 	 	 
	 	WELLS FARGO FOOTHILL, LLC,

as Working Capital Agent,

 	 
	 	By:  	 	 
	 	Name:  	 	 	 
	 	Title:  	 	 	 
	 



Notice Address:




[                                        ], as Working Capital Agent

[                                        ]

[                                        ]

[                                        ]

Attention: [                                        ]

Telecopier: [                                        ]

Telephone: [                                        ]




with a copy to:




[                                        ]

[                                        ]

[                                        ]

Attention: [                                        ]

Telecopier: [                                        ]

Telephone: [                                        ]




 









 





	 	 	 	 	 
	 	WACHOVIA BANK, NATIONAL ASSOCIATION,

as Term Loan Agent,

 	 
	 	By:  	 	 
	 	Name:  	 	 	 
	 	Title:  	 	 	 
	 



Notice Address:




Wachovia Bank, National Association, as Term Loan Agent

Wells Fargo Securities

One Wachovia Center

301 South College Street, 6th Floor

Charlotte, NC 28288

Attention: Patrick McKinnon

Facsimile: 704-374-3300

Telephone: 704-715-4433

Email: patrick.mckinnon@wachovia.com




with a copy to:




Wells Fargo Bank, NA

21 Waterway Avenue, Suite 600

The Woodlands, TX 77380

Attention: Janet Ritter

Facsimile: 281-362-6611

Telephone: 281-362-6635

Email: ritterj@wellsfargo.com







 









 








	 	 	 	 	 
	 	WELLS FARGO BANK, NATIONAL ASSOCIATION,

as Control Agent,

 	 
	 	By:  	 	 
	 	Name:  	 	 	 
	 	Title:  	 	 	 
	 



Notice Address:




Wells Fargo Bank, NA, , as Control Agent

21 Waterway Avenue, Suite 600

The Woodlands, TX 77380

Attention: Janet Ritter

Facsimile: 281-362-6611

Telephone: 281-362-6635

Email: ritterj@wellsfargo.com




with a copy to:




Wachovia Bank, National Association

Wells Fargo Securities

One Wachovia Center

301 South College Street, 6th Floor

Charlotte, NC 28288

Attention: Patrick McKinnon

Facsimile: 704-374-3300

Telephone: 704-715-4433

Email: patrick.mckinnon@wachovia.com







 









 








	 	 	 	 	 
	 	NCI BUILDING SYSTEMS, INC.,

a Delaware corporation

 	 
	 	By:  	 	 
	 	Name:  	 	 	 
	 	Title 	 	 
	 



	 	 	 	 	 
	 	[                                        ],

a [                                        ]

 	 
	 	By:  	 	 
	 	Name:  	 	 	 
	 	Title:  	 	 	 
	 



Notice Address:




NCI Building Systems, Inc.

10943 N. Sam Houston Parkway W.

Houston, Texas 77064

Attention: Chief Financial Officer

Telecopier: [                                        ]

Telephone: [                                        ]




with a copy to:




[                                        ]

[                                        ]

[                                        ]

Attention: [                                        ]

Telecopier: [                                        ]

Telephone: [                                        ]




 









 





EXHIBIT A








 









 








EXHIBIT B







 









 








EXHIBIT C







 









 








EXHIBIT D









 









 








EXHIBIT E TO

AMENDED AND RESTATED CREDIT AGREEMENT




FORM OF U.S. TAX COMPLIANCE CERTIFICATE




          Reference is made to the Loan(s) held by the undersigned pursuant to the Amended and Restated
Credit Agreement (the “Amended and Restated Credit Agreement”) dated                     , 2009
entered into by and among NCI Building Systems, Inc., a Delaware corporation (the
"Borrower”), the parties hereto from time to time as lenders thereto (each individually, a
"Lender” and collectively, “Lenders”) and Wells Fargo Bank, N.A., as administrative
agent and collateral agent for the Lenders thereunder (in such capacity, the “Administrative
Agent”). The undersigned hereby certifies under penalty of perjury that:





	 	1.	 	The undersigned is the sole record and beneficial owner of the Loan(s) (as
well as any promissory note(s) evidencing such Loan(s)) registered in its name;
	 
	 	2.	 	The income from the Loan(s) held by the undersigned is not effectively
connected with the conduct of a trade or business within the United States;
	 
	 	3.	 	The undersigned is not a bank (as such term is used in Section 881(c)(3)(A)
of the Internal Revenue Code of 1986, as amended (the “Code”)), is not subject
to regulatory or other legal requirements as a bank in any jurisdiction and has not
been treated as a bank for purposes of any tax, securities law or other filing or
submission made to any governmental authority, any application made to a rating agency
or any qualification for any exemption from any tax, securities law or other legal
requirements;
	 
	 	4.	 	The undersigned is not a 10-percent shareholder of the Borrower within the
meaning of Section 871(h)(3)(B) of the Code; and
	 
	 	5.	 	The undersigned is not a controlled foreign corporation receiving interest
from a related person within the meaning of Section 881(c)(3)(C) of the Code.





          The undersigned has furnished the Administrative Agent and the Borrower each with a
certificate of the undersigned’s non-U.S. person status on Internal Revenue Service Form W-8BEN.
By executing this certificate, the undersigned agrees that (1) if the information provided on this
certificate changes, the undersigned shall so inform the Administrative Agent and the Borrower in
writing within 30 days of such change and (2) the undersigned shall furnish the Administrative
Agent and the Borrower each with, a properly completed and currently effective certificate in
either the calendar year in which a payment is to be made to the undersigned pursuant to the
Amended and Restated Credit Agreement, or in either of the two calendar years preceding such
payment.







E-1









 








          Unless otherwise defined herein, terms defined in the Amended and Restated Credit Agreement
and used herein shall have the meanings given to them in the Amended and Restated Credit Agreement.




	 	 	 	 	 
	 	[NAME OF LENDER]

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:
[Address]  	 	 
	 


Dated:                     , 200___





E-2











 








EXHIBIT F TO

AMENDED AND RESTATED CREDIT AGREEMENT




FORM OF ASSIGNMENT AND ACCEPTANCE




          Reference
is made to the Amended and Restated Credit Agreement, dated as of
October [     ], 2009
(as amended, supplemented, waived or otherwise modified from time to time, the “Amended and
Restated Credit Agreement”), among NCI BUILDING SYSTEMS, INC., a Delaware corporation (the
“Borrower”), the several banks and other financial institutions from time to time parties
thereto (the “Lenders”), WACHOVIA BANK, NATIONAL ASSOCIATION, as administrative agent and
collateral agent for the Lenders (the “Administrative Agent”). Unless otherwise defined
herein, terms defined in the Amended and Restated Credit Agreement and used herein shall have the
meanings given to them in the Amended and Restated Credit Agreement.




                                                   (the “Assignor”) and             
                             (the
“Assignee”) agree as follows:





	 	1.	 	The Assignor hereby irrevocably sells and assigns to the Assignee without recourse
to the Assignor, and the Assignee hereby irrevocably purchases and assumes from the
Assignor without recourse to the Assignor, as of the Transfer Effective Date (as
defined below), an interest (the “Assigned Interest”) as set forth in Schedule
1 in and to the Assignor’s rights and obligations under the Amended and Restated Credit
Agreement and the other Loan Documents with respect to the Loans under the Amended and
Restated Credit Agreement (the “Assigned Loans”), in a principal amount as set
forth on Schedule 1.
	 
	 	2.	 	The Assignor (a) makes no representation or warranty and assumes no
responsibility with respect to any statements, warranties or representations made in or
in connection with the Amended and Restated Credit Agreement, any other Loan Document
or any other instrument or document furnished pursuant thereto or the execution,
legality, validity, enforceability, genuineness, sufficiency or value of the Amended
and Restated Credit Agreement, any other Loan Document or any other instrument or
document furnished pursuant thereto, other than that it is the legal and beneficial
owner of the Assigned Interest and that it has not created any adverse claim upon the
interest being assigned by it hereunder and that such interest is free and clear of any
such adverse claim; (b) makes no representation or warranty and assumes no
responsibility with respect to the financial condition of the Borrower, any of its
Subsidiaries or the performance or observance by the Borrower or any of its
Subsidiaries of any of their respective obligations under the Amended and Restated
Credit Agreement, any other Loan Document or any other instrument or document furnished
pursuant hereto or thereto; and (c) attaches the Note(s), if any, held by it evidencing
the Assigned Loans.
	 
	 	3.	 	The Assignee (a) represents and warrants that it is legally authorized to enter
into this Assignment and Acceptance; (b) confirms that it has received a copy of the
Amended and Restated Credit Agreement, together with copies of the financial
statements referred to in Section 6.1 thereof and such other documents and
information as it has deemed appropriate to make its own credit analysis and
decision to enter into this Assignment and Acceptance; (c) agrees that it will,
independently and without reliance upon the Assignor, the Administrative Agent or
any other Lender and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or not
taking action under the Amended and Restated Credit














 












	 	 	 	Agreement, the other Loan
Documents or any other instrument or document furnished pursuant hereto or thereto;
(d) appoints and authorizes the Administrative Agent to take such action as agent on
its behalf and to exercise such powers and discretion under the Amended and Restated
Credit Agreement, the other Loan Documents or any other instrument or document
furnished pursuant hereto or thereto as are delegated to the Administrative Agent by
the terms thereof, together with such powers as are incidental thereto; (e) hereby
affirms the acknowledgements and representations of such Assignee as a Lender
contained in Section 10.6 of the Amended and Restated Credit Agreement; and (f)
agrees that it will be bound by the provisions of the Amended and Restated Credit
Agreement and will perform in accordance with the terms of the Amended and Restated
Credit Agreement all the obligations which by the terms of the Amended and Restated
Credit Agreement are required to be performed by it as a Lender, including its
obligations pursuant to Section 10.17 of the Amended and Restated Credit Agreement,
and, if it is organized under the laws of a jurisdiction outside the United States,
its obligations pursuant to Section 3.10(b) of the Amended and Restated Credit
Agreement.
	 
	 	4.	 	The effective date of this Assignment and Acceptance shall be ___ ___, 20___
(the “Transfer Effective Date”). Following the execution of this Assignment
and Acceptance, it will be delivered to the Administrative Agent for acceptance by it
and recording by the Administrative Agent pursuant to Section 10.6 of the Amended and
Restated Credit Agreement, effective as of the Transfer Effective Date (which shall
not, unless otherwise agreed to by the Administrative Agent, be earlier than five
Business Days after the date of such acceptance and recording by the Administrative
Agent).
	 
	 	5.	 	Upon such acceptance and recording, from and after the Transfer Effective Date,
the Administrative Agent shall make all payments in respect of the Assigned Interest
(including payments of principal, interest, fees and other amounts) to the Assignee
whether such amounts have accrued prior to the Transfer Effective Date or accrued
subsequent to the Transfer Effective Date. The Assignor and the Assignee shall make
all appropriate adjustments in payments by the Administrative Agent for periods prior
to the Transfer Effective Date or with respect to the making of this assignment
directly between themselves.
	 
	 	6.	 	From and after the Transfer Effective Date, (a) the Assignee shall be a party
to the Amended and Restated Credit Agreement and, to the extent provided in this
Assignment and Acceptance, have the rights and obligations of a Lender thereunder and
under the other Loan Documents and shall be bound by the
provisions thereof and (b) the Assignor shall, to the extent provided in this
Assignment and Acceptance, relinquish its rights and be released from its
obligations under the Amended and Restated Credit Agreement, but shall nevertheless
continue to be entitled to the benefits of (and bound by any related obligations
under) Sections 3.9, 3.10, 3.11, 10.5 and 10.17 thereof.
	 
	 	7.	 	Notwithstanding any other provision hereof, if the consents of the Borrower and
the Administrative Agent hereto are required under Section 10.6 of the Amended and
Restated Credit Agreement, this Assignment and Acceptance shall not be effective unless
such consents shall have been obtained.
	 
	 	8.	 	This Assignment and Acceptance shall be governed by, and construed and
interpreted in accordance with, the law of the State of New York.




F-2









 











          IN WITNESS WHEREOF, the parties hereto have caused this Assignment and Acceptance to be
executed as of the date first above written by their respective duly authorized officers on
Schedule 1 hereto.




F-3









 





SCHEDULE 1 to the

Assignment and Acceptance




     Re: Amended and Restated Credit Agreement, dated as of
October [     ], 2009, among NCI BUILDING SYSTEMS, INC., a Delaware
corporation (the “Borrower”), the several banks and other
financial institutions from time to time parties thereto (the
“Lenders”), WACHOVIA BANK, NATIONAL ASSOCIATION, as
administrative agent and collateral agent for the Lenders, and
WELLS FARGO SECURITIES, LLC, as lead arranger and bookrunner.



Name of Assignor:




Name of Assignee:




Transfer Effective Date of Assignment:




	 	 	 	 	 
	Aggregate Amount of 	 	 
	Loans for all Lenders	 	Amount of Loans Assigned
	___ . ________%
	 	$	 






	 	 	 	 	 	 	 	 	 
	[NAME OF ASSIGNEE]	 	[NAME OF ASSIGNOR]	 	 
	 
	 	 	 	 	 	 	 	 
	By:

	 	 	 	By:	 	 	 	 
	 

	 	 

Name:
	 	 	 	 

Name:
	 	 
	 

	 	Title:
	 	 	 	Title:	 	 
















 








	 	 	 	 	 
	Accepted for recording in the Register:	 	 
	 
	 	 	 	 
	WACHOVIA BANK, NATIONAL ASSOCIATION,	 	 
	as Administrative Agent	 	 
	 
	 	 	 	 
	By:
	 	 	 	 
	 

	 	 

Name:
	 	 
	 

	 	Title:	 	 
	 
	 	 	 	 
	By:
	 	 	 	 
	 

	 	 

Name:
	 	 
	 

	 	Title:	 	 









	 	 	 	 	 
	Consented To:	 	 
	 
	 	 	 	 
	NCI BUILDING SYSTEMS, INC.
	 
	 	 	 	 
	By:
	 	 	 	 
	 

	 	 

Name:
	 	 
	 

	 	Title:	 	 
	 
	 	 	 	 
	WACHOVIA BANK, NATIONAL
	ASSOCIATION,	 	 
	as Administrative Agent	 	 
	 
	 	 	 	 
	By:
	 	 	 	 
	 

	 	 

Name:
	 	 
	 

	 	Title:	 	 
	By:
	 	 	 	 
	 

	 	 

Name:
	 	 
	 

	 	Title:	 	 












5











 





EXHIBIT G TO

AMENDED AND RESTATED CREDIT AGREEMENT




TAX SHARING AGREEMENT




     This Tax Sharing Agreement (the “Agreement”), dated as of [___], is made and entered
into between [                    ], a [Delaware] corporation (“Holding”) and NCI Building Systems,
Inc., a Delaware corporation (the “Company”). This Agreement shall become effective and
binding upon the parties hereto as of the date hereof.



W I T N E S S E T H:




     WHEREAS, the parties hereto desire to provide for the allocation of liabilities, procedures to
be followed, and other matters with respect to Combined Taxes (as defined below);



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



ARTICLE I




DEFINITIONS




	1.	 	Definitions.
	 
	 	 	Code: shall mean the Internal Revenue Code of 1986, as amended.
	 
	 	 	Combined Tax: shall mean any Tax in respect of a Combined Tax Group.
	 
	 	 	Combined Tax Group: shall mean any affiliated group (i) of which the Company or
any of its Subsidiaries was or is, or was or is required to be, a member for any Tax year
and (ii) of which a Parent Entity was or is, or was or is required to be, the common parent
for such Tax year for purposes of paying Taxes or filing a Tax Return.
	 
	 	 	Combined Tax Return: shall mean any Tax Return with respect to any Combined Tax.
	 
	 	 	Company Group: shall mean, with respect to any Combined Tax, a subgroup of the
relevant Combined Tax Group, whose member or members shall include each member of such
Combined Tax Group that is either the Company or a Subsidiary of the Company.




 









 






	 	 	Due Date: shall mean, with respect to the filing of any Tax Return or the payment
of Tax, the date on which such Tax Return is due to be filed with, or such payment is due
to be made to, the appropriate Taxing Authority pursuant to applicable law, giving effect
to any applicable extensions of the time for such filing or payment.
	 
	 	 	Estimated Tax Sharing Payments: shall mean the periodic tax sharing payments
required under Article III, Section 2 of this Agreement.
	 
	 	 	IRS: shall mean the United States Internal Revenue Service, including, but not
limited to, its authorized agents and representatives and, in the case of a litigated
controversy, the attorneys representing it.
	 
	 	 	Parent Entity: shall mean Holding and any Subsidiary of Holding other than the
Company and its Subsidiaries.
	 
	 	 	Person: shall mean any individual, corporation, partnership, joint venture,
association, joint-stock company, limited liability company, trust, unincorporated
organization, government or any agency or political subdivision thereof or any other
entity.
	 
	 	 	Pro Forma Company Return: shall mean a pro forma Tax Return prepared pursuant to
Article III, Section 1 or 3.
	 
	 	 	Subsidiary: shall mean, with respect to any Person at any time, any corporation,
association, partnership or other business entity of which more than 50% of the total
voting power of shares of capital stock or other equity interests (including partnership
interests) entitled (without regard to the occurrence of any contingency) to vote in the
election of directors, managers or trustees thereof is at the time owned or controlled,
directly or indirectly, by (a) such Person or (b) one or more Subsidiaries
of such Person.
	 
	 	 	Tax: shall mean any federal, state, local or foreign income, alternative minimum,
accumulated earnings, personal holding company, franchise, capital stock, profits, windfall
profits, gross receipts, sales, use, value added, transfer, registration, stamp, premium,
excise, customs duties, severance, environmental (including taxes under section 59A of the
Code), real property, personal property, ad valorem, rent, occupancy, license, occupation,
employment, payroll, social security, disability, unemployment, workers’ compensation,
withholding, estimated or other similar tax, duty, fee, assessment or other governmental
charge or deficiencies thereof (including all interest and penalties thereon and additions
thereto).




 









 






	 	 	Tax Return: shall mean any federal, state, local or foreign tax return,
declaration, statement, report, schedule, form or information return or any amendment to
any of the foregoing relating to Taxes.
	 
	 	 	Taxing Authority: shall mean, with respect to any Tax, the governmental entity or
political subdivision thereof that imposes such Tax, and the agency (if any) charged with
the collection of such Tax for such entity or subdivision.
	 
	 	 	Treasury Regulations: shall mean the regulations prescribed under the Code.
	 
	2.	 	Successors.
	 
	 	 	References to the Company or a Parent Entity shall include any successor thereto or any
Person with respect to which the Company or such Parent Entity, respectively, is the
successor.





ARTICLE II




PROCEDURAL MATTERS




	1.	 	The applicable Parent Entity shall have the sole and exclusive responsibility for the
preparation and filing of each Combined Tax Return for each Combined Tax with respect to which
it is the common parent, including any amended returns and any other returns, documents or
statements required to be filed with any Taxing Authority relating to such Combined Tax
Return. Holding shall, or shall cause the applicable Parent Entity to, file all such Combined
Tax Returns on a timely basis, taking into account extensions of the due date for the filings
of such returns.
	 
	2.	 	The Company shall, and shall cause each of its Subsidiaries that is eligible to be a member
of the relevant Combined Tax Group to, join and continue to join in filing a Combined Tax
Return with respect to each jurisdiction for all Tax years for which the Company or such
Subsidiary, as the case may be, is eligible to do so under the applicable Tax law, unless
Holding shall request otherwise.
	 
	3.	 	Holding shall, or shall cause the applicable Parent Entity to, make all payments to the
applicable Taxing Authority of all Combined Taxes that the relevant Combined Tax Group is
required to pay, including estimated payments relating thereto. The applicable Parent Entity
shall have the right to exercise all powers of a common parent with respect to each relevant
Combined Tax Return or Combined Tax.




 









 






	4.	 	The applicable Parent Entity shall be the sole and exclusive agent of the Combined Tax Group
of which it is the common parent and of each member of such group in respect of any and all
matters relating to any Combined Tax of such group for all Combined Tax Return years. In its
sole discretion, such Parent Entity shall have the right with respect to each such Combined
Tax Return (a) to determine (i) the manner in which such return shall be
prepared and filed, including, without limitation, the manner in which any item of income,
gain, loss, deduction or credit shall be reported and the adoption or change of any method of
accounting, (ii) whether any extensions may be requested and (iii) the
elections that will be made by each member of the Combined Tax Group for which such Combined
Tax Return is filed, (b) to contest, compromise or settle any adjustment or deficiency
proposed, asserted or assessed as a result of any audit of such return by any Taxing
Authority, (c) to file, prosecute, compromise or settle any claim for refund and
(d) to determine whether any refund to which such Combined Tax Group may be entitled
shall be paid by way of refund or credited against the Combined Tax liability of such group.
The Company hereby irrevocably appoints, and shall cause each of its Subsidiaries that is a
member of each such Combined Tax Group to irrevocably appoint, such Parent Entity as its agent
and attorney-in-fact to take such action (including the execution of documents) as such Parent
Entity may deem appropriate to effect the foregoing.
	 
	5.	 	The Company shall, and shall as appropriate cause each of its Subsidiaries that is a member
of a Combined Tax Group to, reimburse the applicable Parent Entity for (a) any outside
legal and accounting expenses incurred by such Parent Entity in the course of the conduct of
any audit or contest regarding a Combined Tax liability of such group, (b) any other
expenses incurred by such Parent Entity in the course of any litigation relating thereto and
(c) the cost of preparing any Combined Tax Return or otherwise administering this
Agreement.
	 
	6.	 	The Company shall, and shall cause each of its Subsidiaries that is a member of a Combined
Tax Group to, furnish to the applicable Parent Entity in a timely manner such information,
documents and other assistance, in each case as such Parent Entity may reasonably request in
connection with the filing of each Combined Tax Return with respect to such group or any audit
or examination by any Taxing Authority or any judicial or administrative proceeding relating
to a Combined Tax of such group or otherwise with respect to this Agreement and the
transactions contemplated hereby.




 









 











ARTICLE III




TAX SHARING PAYMENTS




	1.	 	For each Tax year for which a Parent Entity files, or is required to file, a Combined Tax
Return on or after the date hereof, Holding shall, or shall cause the applicable Parent Entity
to, timely prepare, or cause to be prepared, a Pro Forma Company Return for each relevant
Company Group for such year (including, if necessary, preparing Pro Forma Company Returns for
prior years). Each such Pro Forma Company Return shall include only the items of income,
deduction, gain, loss and credit of the members of the Company Group that join in the filing
of such Combined Tax Return, and shall be prepared in a manner consistent with the elections,
methods of accounting, and positions with respect to specific items made or used by such
Parent Entity for purposes of such Combined Tax Return. Each such Pro Forma Company Return
shall reflect any carryovers of net operating losses, net capital losses, excess tax credits
or other tax attributes from Pro Forma Company Returns with respect to the same Combined Tax
for prior years assuming that members of such Company Group had not been in existence before
the date hereof, which carryovers could have been utilized by the Company Group if such
Company Group had never been included in the relevant Combined Tax Group, but only to the
extent such Parent Entity utilizes such carryovers. For purposes of this Article III, Section
1, (a) a carryover will be treated as utilized by a Parent Entity to the extent that
the Tax liability of the relevant Combined Tax Group determined taking into account such
carryover is less than the Tax liability of such Combined Tax Group determined without giving
effect to such carryover, (b) any provision of the Code that requires consolidated
computations, such as sections 861 and 1231, and any similar provision with respect to any
other Combined Tax, shall be applied separately to the Company Group for purposes of preparing
the Pro Forma Company Return and (c) Treasury Regulations section 1.1502-13, and any
similar provisions with respect to any other Combined Tax, shall be applied as if the Company
Group were not a part of the relevant Combined Tax Group. The Pro Forma Company Return shall
be provided to the Company no later than 10 days before the Due Date for filing the relevant
Combined Tax Return.
	 
	2.	 	For each Tax year in which a Combined Tax Return is, or is required to be, filed by a Parent
Entity, the Company shall, and shall as appropriate cause each of its Subsidiaries that is a
member of the relevant Combined Tax Group to, make periodic payments (“Estimated Tax
Sharing Payments”) to such Parent Entity in such amounts as, and no later than the dates
on which, payments of estimated tax with respect to such Combined Tax would be due on or after
the date hereof from the Company Group under section 6655 of the Code, and any similar
provisions




 









 






	 	 	with respect to any other Combined Tax, if it were not included in the relevant Combined
Tax Group (computed on a basis consistent with the relevant Pro Forma Company Return). The
balance, if any, of the Estimated Tax Sharing Payments due on or after the date hereof for
such Tax year shall be paid to such Parent Entity no later than December 15 of such year.
The Company shall, and shall as appropriate cause each of its Subsidiaries that is a member
of the relevant Combined Tax Group to, pay to the applicable Parent Entity no later than
the Due Date (for this purpose, determined without regard to extensions) on which each
Combined Tax Return for each Tax year is, or is required to be, filed by such Parent Entity
on or after the date hereof, an amount equal to the excess of (a) the sum of
(i) the Tax liability shown on the relevant Pro Forma Company Return prepared for
such Tax year and (ii) the additions to tax, if any, under section 6655 of the
Code, and any similar provisions with respect to any other Combined Tax, that would have
been imposed upon the Company Group (treating the amount due to such Parent Entity under
clause (i) above as the Company Group’s Tax liability and treating any Estimated Tax
Sharing Payments as estimated Tax payments with respect to such liability) over (b)
the Estimated Tax Sharing Payments made relating thereto.
	 
	3.	 	To the extent that, after the date hereof, any audit, litigation, claim or refund with
respect to a Combined Tax Return results in an increase in Tax liability relating to the
treatment of a Company Group item, a corresponding adjustment shall be made to such item and
to the Company Group’s Tax liability reflected on the applicable Pro Forma Company Return.
Within 5 days after any such adjustment, the Company shall, and shall as appropriate cause
each of its Subsidiaries that is a member of the relevant Combined Tax Group to, make
additional Tax sharing payments, including interest and penalties consistent with such
adjustment, to the applicable Parent Entity.
	 
	4.	 	All calculations required to be made by a Parent Entity under this Agreement shall be binding
upon the parties hereto absent manifest error.





ARTICLE IV




INTEREST




	1.	 	With respect to any federal income Tax, any amount relating thereto which is required to be
paid by the Company or any of its Subsidiaries pursuant to this Agreement and which has not
been timely paid to the applicable Parent Entity




 









 






	 	 	shall be subject to an interest charge at the rate and in the manner provided in the Code
for interest on underpayments of federal income Tax for the relevant period.
	 
	2.	 	With respect to any Combined Tax other than federal income Tax, any amount relating thereto
which is required to be paid by the Company or any of its Subsidiaries pursuant to this
Agreement and which has not been timely paid to the applicable Parent Entity shall be subject
to an interest charge at the rate and in the manner provided under the applicable state or
local statute for interest on underpayments of such Tax for the relevant period.





ARTICLE V




MISCELLANEOUS PROVISIONS




	1.	 	Any information or documents furnished by one party to another pursuant to this Agreement
shall be treated as confidential and, except as, and to the extent, required during the course
of an audit or litigation or otherwise required by law, shall not be disclosed to another
Person without the consent, which shall not be unreasonably withheld, of the first party.
	 
	2.	 	All payments to be made by any party under this Agreement shall, except to the extent
otherwise specifically provided herein, be made without setoff, counterclaim or withholding,
all of which are expressly waived.
	 
	3.	 	Nothing in this Agreement shall be construed to require a party hereto to pay any liability
or obligation arising under this Agreement more than once.
	 
	4.	 	If due to any change in applicable law, regulations, or interpretation thereof after the date
of this Agreement, performance of any provision of this Agreement or any transaction
contemplated thereby shall become impracticable or impossible, the parties hereto shall use
their best efforts to find and employ an alternative means to achieve the same or
substantially the same result as that contemplated by such provision.
	 
	5.	 	This Agreement shall be binding upon and inure to the benefit of any successor to each of the
parties, by merger, acquisition of assets or otherwise, to the same extent as if the successor
had been an original party to this Agreement.




 









 






	6.	 	This Agreement shall be governed by and construed in accordance with the laws of the State of
New York without giving effect to the rules or principles of conflict of laws thereof, to the
extent the same are not mandatorily applicable by statute and would permit or require the
application of the laws of another jurisdiction.
	 
	7.	 	This Agreement may be executed simultaneously in one or more counterparts, each of which will
be deemed an original, but all of which when taken together shall constitute one and the same
instrument.
	 
	8.	 	The headings in this Agreement are for convenience only and shall not be deemed for any
purpose to constitute a part or to affect the interpretation of this Agreement.
	 
	9.	 	This Agreement may be amended from time to time by agreement in writing executed by all the
parties hereto or all of the parties then bound thereby. This Agreement constitutes the
entire agreement with respect to the subject matter hereof and supersedes all prior written
and oral understandings with respect thereto.
	 
	10.	 	Any notice, request or other communication required or permitted in this Agreement shall be
in writing and shall be sufficiently given if personally delivered or if sent by registered or
certified mail, postage prepaid, addressed as follows:
	 
	 	 	If to a Parent Entity:
	 
	 	 	If to the Company:




NCI Building Systems, Inc.

10943 North Sam Houston Parkway West

Houston, Texas 77064

Attention: Chief Financial Officer

Facsimile: (281) 477-9674




 









 









	 	 	In each case, with a copy to (which shall not constitute notice):




Debevoise & Plimpton LLP

919 Third Avenue

New York, New York 10022

Attention: David A. Brittenham

Facsimile: (212) 909-6836



or to such other address as set forth in writing by either party to the other in accordance with
this section.









 









 








          IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their
authorized representatives.




	 	 	 	 	 
	 	[HOLDING]

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



[Tax Sharing Agreement]







 









 








	 	 	 	 	 
	 	NCI BUILDING SYSTEMS, INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



[Tax Sharing Agreement]