exv4w2






EXECUTION COPY




 





$325,000,000




CREDIT AGREEMENT




among




NCI BUILDING SYSTEMS, INC.,

as Borrower,



ITS DOMESTIC SUBSIDIARIES

FROM TIME TO TIME PARTIES HERETO,

as Guarantors,



THE LENDERS PARTIES HERETO,




BANK OF AMERICA, N.A.,

as Syndication Agent



and




WACHOVIA BANK, NATIONAL ASSOCIATION,

as Administrative Agent



Dated as of June 18, 2004



WACHOVIA CAPITAL MARKETS, LLC

and

BANC OF AMERICA SECURITIES LLC,

as Joint Lead Arrangers and Joint Book Runners




 







 









 








TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page	 
	ARTICLE I DEFINITIONS
	 	 	1	 
	Section 1.1 Defined Terms
	 	 	1	 
	Section 1.2 Other Definitional Provisions
	 	 	25	 
	Section 1.3 Accounting Terms
	 	 	25	 
	Section 1.4 Time References
	 	 	25	 
	ARTICLE II THE LOANS; AMOUNT AND TERMS
	 	 	26	 
	Section 2.1 Revolving Loans
	 	 	26	 
	Section 2.2 Tranche B Term Loan
	 	 	28	 
	Section 2.3 Letter of Credit Subfacility
	 	 	29	 
	Section 2.4 Swingline Loan Subfacility
	 	 	33	 
	Section 2.5 Incremental Facility
	 	 	35	 
	Section 2.6 Fees
	 	 	35	 
	Section 2.7 Commitment Reductions
	 	 	36	 
	Section 2.8 Prepayments
	 	 	37	 
	Section 2.9 Default Rate and Payment Dates
	 	 	40	 
	Section 2.10 Conversion Options
	 	 	40	 
	Section 2.11 Computation of Interest and Fees
	 	 	41	 
	Section 2.12 Pro Rata Treatment and Payments
	 	 	42	 
	Section 2.13 Non-Receipt of Funds by the Administrative Agent
	 	 	44	 
	Section 2.14 Inability to Determine Interest Rate
	 	 	45	 
	Section 2.15 Illegality
	 	 	45	 
	Section 2.16 Requirements of Law
	 	 	46	 
	Section 2.17 Indemnity
	 	 	47	 
	Section 2.18 Taxes
	 	 	47	 
	Section 2.19 Indemnification; Nature of Issuing Lender’s Duties
	 	 	49	 
	ARTICLE III REPRESENTATIONS AND WARRANTIES
	 	 	51	 
	Section 3.1 Financial Condition
	 	 	51	 
	Section 3.2 No Change
	 	 	51	 
	Section 3.3 Corporate Existence
	 	 	51	 
	Section 3.4 Corporate Power; Authorization; Enforceable Obligations
	 	 	52	 
	Section 3.5 Compliance with Laws; No Conflict; No Default
	 	 	52	 
	Section 3.6 No Material Litigation
	 	 	53	 
	Section 3.7 Investment Company Act; PUHCA
	 	 	53	 
	Section 3.8 Margin Regulations
	 	 	53	 
	Section 3.9 ERISA
	 	 	54	 
	Section 3.10 Environmental Matters
	 	 	54	 
	Section 3.11 Use of Proceeds
	 	 	54	 
	Section 3.12 Subsidiaries
	 	 	54	 
	Section 3.13 Ownership
	 	 	55	 
	Section 3.14 Indebtedness
	 	 	55	 
	Section 3.15 Taxes
	 	 	55	 
	Section 3.16 Intellectual Property Rights
	 	 	55	 
	Section 3.17 Solvency
	 	 	56	 
	Section 3.18 Investments
	 	 	56	 
	Section 3.19 Location of Collateral
	 	 	56	 






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	 	 	Page	 
	Section 3.20 No Burdensome Restrictions
	 	 	56	 
	Section 3.21 Brokers’ Fees
	 	 	57	 
	Section 3.22 Labor Matters
	 	 	57	 
	Section 3.23 Accuracy and Completeness of Information
	 	 	57	 
	Section 3.24 Material Contracts
	 	 	57	 
	Section 3.25 Insurance
	 	 	57	 
	Section 3.26 Security Documents
	 	 	57	 
	Section 3.27 Classification of Senior Indebtedness
	 	 	58	 
	Section 3.28 Foreign Assets Control Regulations, Etc.
	 	 	58	 
	ARTICLE IV CONDITIONS PRECEDENT
	 	 	58	 
	Section 4.1 Conditions to Closing Date
	 	 	58	 
	Section 4.2 Conditions to All Extensions of Credit
	 	 	62	 
	Section 4.3 Conditions to Funding of Tranche B Term Loan
	 	 	63	 
	ARTICLE V AFFIRMATIVE COVENANTS
	 	 	64	 
	Section 5.1 Financial Statements
	 	 	64	 
	Section 5.2 Certificates; Other Information
	 	 	65	 
	Section 5.3 Payment of Taxes and Other Obligations
	 	 	67	 
	Section 5.4 Conduct of Business and Maintenance of Existence
	 	 	67	 
	Section 5.5 Maintenance of Property; Insurance
	 	 	67	 
	Section 5.6 Inspection of Property; Books and Records; Discussions
	 	 	68	 
	Section 5.7 Notices
	 	 	68	 
	Section 5.8 Environmental Laws
	 	 	69	 
	Section 5.9 Financial Covenants
	 	 	69	 
	Section 5.10 Additional Guarantors
	 	 	70	 
	Section 5.11 Compliance with Law
	 	 	71	 
	Section 5.12 Pledged Assets
	 	 	71	 
	Section 5.13 Covenants Regarding Patents, Trademarks and Copyrights
	 	 	72	 
	Section 5.14 Further Assurances
	 	 	73	 
	ARTICLE VI NEGATIVE COVENANTS
	 	 	73	 
	Section 6.1 Indebtedness
	 	 	73	 
	Section 6.2 Liens
	 	 	74	 
	Section 6.3 Guaranty Obligations
	 	 	74	 
	Section 6.4 Nature of Business
	 	 	75	 
	Section 6.5 Consolidation, Merger, Sale or Purchase of Assets, etc.
	 	 	75	 
	Section 6.6 Advances, Investments and Loans
	 	 	76	 
	Section 6.7 Transactions with Affiliates
	 	 	76	 
	Section 6.8 Ownership of Subsidiaries; Restrictions
	 	 	77	 
	Section 6.9 Fiscal Year; Organizational Documents; Subordinated Debt Documents
	 	 	77	 
	Section 6.10 Limitation on Restricted Actions
	 	 	77	 
	Section 6.11 Restricted Payments
	 	 	77	 
	Section 6.12 No Further Negative Pledges
	 	 	78	 
	ARTICLE VII EVENTS OF DEFAULT
	 	 	78	 
	Section 7.1 Events of Default
	 	 	78	 
	Section 7.2 Acceleration; Remedies
	 	 	81	 
	ARTICLE VIII THE ADMINISTRATIVE AGENT
	 	 	81	 
	Section 8.1 Appointment
	 	 	81	 
	Section 8.2 Delegation of Duties
	 	 	82	 
	Section 8.3 Exculpatory Provisions
	 	 	82	 






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	 	 	Page	 
	Section 8.4 Reliance by Administrative Agent
	 	 	82	 
	Section 8.5 Notice of Default
	 	 	83	 
	Section 8.6 Non-Reliance on Administrative Agent and Other Lenders
	 	 	83	 
	Section 8.7 Indemnification
	 	 	84	 
	Section 8.8 The Administrative Agent in Its Individual Capacity
	 	 	84	 
	Section 8.9 Successor Administrative Agent
	 	 	84	 
	Section 8.10 Other Agents
	 	 	85	 
	ARTICLE IX MISCELLANEOUS
	 	 	85	 
	Section 9.1 Amendments, Waivers and Release of Collateral
	 	 	85	 
	Section 9.2 Notices
	 	 	87	 
	Section 9.3 No Waiver; Cumulative Remedies
	 	 	88	 
	Section 9.4 Survival of Representations and Warranties
	 	 	88	 
	Section 9.5 Payment of Expenses and Taxes
	 	 	89	 
	Section 9.6 Successors and Assigns; Participations; Purchasing Lenders
	 	 	89	 
	Section 9.7 Adjustments; Set-off
	 	 	92	 
	Section 9.8 Table of Contents and Section Headings
	 	 	93	 
	Section 9.9 Counterparts
	 	 	93	 
	Section 9.10 Integration; Effectiveness; Continuing Agreement
	 	 	94	 
	Section 9.11 Severability
	 	 	94	 
	Section 9.12 Governing Law
	 	 	95	 
	Section 9.13 Consent to Jurisdiction and Service of Process
	 	 	95	 
	Section 9.14 Arbitration
	 	 	95	 
	Section 9.15 Confidentiality
	 	 	96	 
	Section 9.16 Acknowledgments
	 	 	97	 
	Section 9.17 Waivers of Jury Trial; Waiver of Consequential Damages
	 	 	97	 
	Section 9.18 Patriot Act Notice
	 	 	98	 
	ARTICLE X GUARANTY
	 	 	98	 
	Section 10.1 The Guaranty
	 	 	98	 
	Section 10.2 Bankruptcy
	 	 	98	 
	Section 10.3 Nature of Liability
	 	 	99	 
	Section 10.4 Independent Obligation
	 	 	99	 
	Section 10.5 Authorization
	 	 	99	 
	Section 10.6 Reliance
	 	 	100	 
	Section 10.7 Waiver
	 	 	100	 
	Section 10.8 Limitation on Enforcement
	 	 	101	 
	Section 10.9 Confirmation of Payment
	 	 	101	 






iii









 






Schedules




	 	 	 
	Schedule 1.1(a)

	 	Account Designation Letter
	Schedule 1.1(b)

	 	Existing Letters of Credit
	Schedule 1.1(c)

	 	Investments
	Schedule 1.1(d)

	 	Liens
	Schedule 2.1(a)

	 	Schedule of Lenders and Commitments
	Schedule 2.1(b)(i)

	 	Form of Notice of Borrowing
	Schedule 2.1(e)

	 	Form of Revolving Note
	Schedule 2.2(d)

	 	Form of Tranche B Term Note
	Schedule 2.4(d)

	 	Form of Swingline Note
	Schedule 2.10

	 	Form of Notice of Conversion/Extension
	Schedule 2.18

	 	Tax Exempt Certificate
	Schedule 3.3

	 	Jurisdictions of Organization and Qualification
	Schedule 3.12

	 	Subsidiaries
	Schedule 3.16

	 	Intellectual Property
	Schedule 3.19(a)

	 	Location of Real Property
	Schedule 3.19(b)

	 	Location of Collateral
	Schedule 3.19(c)

	 	Chief Executive Offices
	Schedule 3.22

	 	Labor Matters
	Schedule 3.24

	 	Material Contracts
	Schedule 3.25

	 	Insurance
	Schedule 4.1(b)

	 	Form of Secretary’s Certificate
	Schedule 4.1(i)

	 	Form of Solvency Certificate
	Schedule 5.2(b)

	 	Form of Officer’s Compliance Certificate
	Schedule 5.10

	 	Form of Joinder Agreement
	Schedule 6.1(b)

	 	Indebtedness
	Schedule 9.2

	 	Lenders’ Lending Offices
	Schedule 9.6(c)

	 	Form of Commitment Transfer Supplement






iv









 





     CREDIT AGREEMENT, dated as of June 18, 2004, among NCI BUILDING SYSTEMS, INC., a Delaware
corporation (the “Borrower”), each of those Domestic Subsidiaries of the Borrower
identified as a “Guarantor” on the signature pages hereto and such other Domestic Subsidiaries of
the Borrower as may from time to time become a party hereto (collectively the “Guarantors”
and individually a “Guarantor”), the several banks and other financial institutions from
time to time parties to this Credit Agreement (collectively the “Lenders” and individually
a “Lender”), BANK OF AMERICA, N.A., as syndication agent (the “Syndication Agent”),
and WACHOVIA BANK, NATIONAL ASSOCIATION, a national banking association, as administrative agent
for the Lenders hereunder (in such capacity, the “Administrative Agent” or the
“Agent”).



W I T N E S S E T H:




     WHEREAS, the Borrower has requested that the Lenders make loans and other financial
accommodations to the Borrower in an aggregate amount of up to $325,000,000, as more particularly
described herein; and



     WHEREAS, the Lenders have agreed to make such loans and other financial accommodations to the
Borrower on the terms and conditions contained herein.



     NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged by the parties hereto, such parties hereby agree as follows:



ARTICLE I




DEFINITIONS



     Section 1.1 Defined Terms.



     As used in this Credit Agreement, terms defined in the preamble to this Credit Agreement have
the meanings therein indicated, and the following terms have the following meanings:



     “ABR Default Rate” shall have the meaning set forth in Section 2.9.



     “Account Designation Letter” shall mean the Notice of Account Designation Letter dated
the Closing Date from the Borrower to the Administrative Agent in substantially the form attached
hereto as Schedule 1.1(a).



     “Additional Credit Party” shall mean each Person that becomes a Guarantor by execution
of a Joinder Agreement in accordance with Section 5.10.



     “Additional Loan” shall have the meaning set forth in Section 2.5.



 









 





     “Administrative Agent” shall have the meaning set forth in the first paragraph of this
Credit Agreement and any successors in such capacity.


     “Affiliate” shall mean as to any Person, any other Person (excluding any 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, a Person shall be
deemed to be “controlled by” a Person if such Person
possesses, directly or indirectly, power either (a) to vote 10% or
more of the securities having ordinary voting power for the election
of directors of such Person or (b) to direct or cause the direction
of the management and policies of such Person whether by contract or  otherwise.



     “Agents” shall mean the Administrative Agent and the Syndication Agent, collectively,
and “Agent” shall mean either the Administrative Agent or the Syndication Agent,
individually.



     “Agreement” or “Credit Agreement” shall mean this Credit Agreement, as
amended, modified or supplemented from time to time in accordance with its terms.



     “Alternate Base Rate” shall mean, for
any day, a rate per annum equal to the greater
of (a) the Prime Rate in effect on such day and (b) the Federal Funds Effective Rate in effect on
such day plus 1/2 of 1%.  For purposes hereof: “Prime Rate” shall mean,
at any time, the rate of interest per annum publicly announced or otherwise identified from time
 to time by Wachovia at its principal office in Charlotte, North Carolina as its prime rate. The parties
hereto acknowledge that the rate announced publicly by Wachovia as its Prime Rate is an index or base rate and
 shall not necessarily be its lowest or best rate charged to its customers or other banks; and “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 Bank of
New York, or, if such rate is not so published on the next succeeding 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. If
for any reason the Administrative Agent shall have determined (which determination shall be conclusive in the absence of manifest
error) that it is unable to ascertain the Federal Funds Effective Rate, for any reason, including the inability or failure of the
Administrative Agent to obtain sufficient quotations in accordance with the terms thereof, the Alternate Base Rate shall be determined
without regard to clause (b) of the first sentence of this definition, as appropriate, until the circumstances giving rise to such inability no
longer exist. Any change in the Alternate Base Rate due to a change in the Prime Rate or the Federal Funds
 Effective Rate shall be effective at the opening of business on the date of such change.



     “Alternate Base Rate Loans” shall mean Loans that bear interest at an interest rate
based on the Alternate Base Rate.



     “Applicable Percentage” shall mean, for any day, the rate per annum set forth below
opposite the applicable level then in effect, it being understood that the Applicable Percentage
for (a) Revolving Loans that are LIBOR Rate Loans shall be the percentage set forth under the



2









 




column “LIBOR Rate Margin for Revolving Loans and Letter of Credit Fee”, (b) the Letter of Credit
Fee shall be the percentage set forth under the column “LIBOR Rate Margin for Revolving Loans and
Letter of Credit Fee”, (c) Revolving Loans that are Alternate Base Rate Loans shall be the
percentage set forth under the column “Alternate Base Rate Margin for Revolving Loans”, (d) Tranche
B Term Loans that are LIBOR Rate Loans shall be the percentage set forth under the column “LIBOR
Rate Margin for Tranche B Term Loans”, (e) Tranche B Term Loans that are Alternate Base Rate Loans
shall be the percentage set forth under the column “Alternate Base Rate Margin for Tranche B Term
Loans”, and (f) the Commitment Fee shall be the percentage set forth under the column “Commitment
Fee”:




	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	LIBOR Rate	 	 	 	 	 	 	 	 
	 	 	 	 	Margin for	 	Alternate	 	 	 	Alternate	 	 
	 	 	 	 	Revolving	 	Base Rate	 	LIBOR Rate	 	Base Rate	 	 
	 	 	 	 	Loans and	 	Margin for	 	Margin for	 	Margin for	 	 
	 	 	Leverage	 	Letter of	 	Revolving	 	Tranche B	 	Tranche B	 	Commitment
	Level	 	Ratio	 	Credit Fee	 	Loans	 	Term Loans	 	Term Loans	 	Fee
	I
	 	< 2.00 to 1.0	 	1.25%	 	0.25%	 	2.00%	 	1.00%	 	0.25%
	II
	 	3 2.00 to 1.0 but   < 2.50 to 1.0	 	1.50%	 	0.50%	 	2.00%	 	1.00%	 	0.375%
	III
	 	3 2.50 to 1.0 but   < 3.00 to 1.0	 	1.75%	 	0.75%	 	2.00%	 	1.00%	 	0.375%
	IV
	 	3 3.00 to 1.0 but   < 3.50 to 1.0	 	2.00%	 	1.00%	 	2.00%	 	1.00%	 	0.50%
	V
	 	3 3.50 to 1.0	 	2.25%	 	1.25%	 	2.00%	 	1.00%	 	0.50%





The Applicable Percentage shall, in each case, be determined and adjusted quarterly on
the first Business Day after the date on which the Administrative Agent has received from the
Borrower the Compliance Certificate required to be delivered to the Administrative Agent in
accordance with the provisions of Section 5.2(b) (each an “Interest Determination
Date”).
Subject to the last sentence of this definition, such Applicable
Percentage shall be effective from such Interest Determination Date
until the next such Interest Determination Date. Notwithstanding the foregoing, the initial Applicable Percentages shall be set at Level III until the first Interest Determination Date to occur after July 31, 2004. If the Borrower shall fail to provide a Compliance Certificate in accordance with the provisions of Section 5.2(b), the Applicable Percentage shall,
on the date five (5) Business Days after the date by which the Borrower was so required to provide such Compliance Certificate to the Administrative Agent, be based on Level V until such time as such information and certifications are provided, whereupon the Level shall be determined by the then current Leverage Ratio.


     “Approved Fund” shall mean, with respect to any Lender, any Fund that is administered
or managed by a Lender, an Affiliate of a Lender or an entity or an Affiliate of an entity that
administers or manages a Lender.



     “Arrangers” shall mean Wachovia Capital Markets, LLC and Banc of America Securities
LLC, together with their successors and assigns.



3









 





     “Asset Disposition” shall mean the disposition of any or all of the assets (including,
without limitation, the Capital Stock of a Subsidiary or any ownership interest in a joint venture)
of the Borrower or any Subsidiary whether by sale, lease, transfer or
otherwise. The term “Asset Disposition” shall not include (a) the sale, lease or
transfer of assets permitted by Section 6.5(a)(i) — (vii), (b)
any Equity Issuance, (c) the sale, lease or transfer of assets by Building Systems de Mexico, S.A. de C.V. and (d) the lease of
assets by a Credit Party to Building . Systems de Mexico, S.A. de C.V.; provided that such leases comply with the terms set forth in Section 6.5(a)(iv).




     “Attributable Indebtedness” shall mean, on any date, (a) in respect of any Capital
Lease of any Person, the capitalized amount thereof that would appear on a balance sheet of such
Person prepared as of such date in accordance with GAAP, and (b) in respect of any Synthetic Lease
Obligation, the capitalized amount of the remaining lease payments under the relevant lease that
would appear on a balance sheet of such Person prepared as of such date in accordance with GAAP if
such lease were accounted for as a Capital Lease.



     “Bank of America” shall mean Bank of America, N.A.



     “Bankruptcy Code” shall mean the Bankruptcy Code in Title 11 of the United States
Code, as amended, modified, succeeded or replaced from time to time.



     “Bankruptcy Event” shall mean any of the events described in Section 7.1(e).



     “Borrower” shall have the meaning set forth in the first paragraph of this Credit
Agreement.



     “Borrowing Date” shall mean, in respect of any Loan, the date such Loan is made.



     “Business Day” shall mean a day other than a Saturday, Sunday or other day on which
commercial banks in Charlotte, North Carolina or New York, New York are authorized or required by
law to close; provided, however, that when used in connection with a rate
determination, borrowing or payment in respect of a LIBOR Rate Loan, the term “Business Day” shall
also exclude any day on which banks in London, England are not open for dealings in Dollar deposits
in the London interbank market.



     “Capital Lease” shall mean any lease of property, real or personal, the obligations
with respect to which are required to be capitalized on a balance sheet of the lessee in accordance
with GAAP.



     “Capital Lease Obligations” shall mean the capitalized lease obligations relating to a
Capital Lease determined in accordance with GAAP.



     “Capital Stock” shall mean (i) in the case of a corporation, capital stock (whether
voting or nonvoting and whether common or preferred), (ii) in the case of an association or
business entity, any and all shares, interests, participations, rights or other equivalents
(however designated) of capital stock, (iii) in the case of a partnership, any partnership
interests (whether



4









 




general or limited) of such partnership, (iv) in the case of a limited liability company, any
membership interests of such company and (v) any other interest or participation that confers on a
Person the right to receive a share of the profits and losses of, or distributions of assets of,
the issuing Person.




     “Cash Equivalents” shall mean (i) securities issued or directly and fully guaranteed
or insured by the United States of America or any agency or instrumentality thereof (provided that
the full faith and credit of the United States of America is pledged in support thereof) having
maturities of not more than twelve months from the date of acquisition (“Government
Obligations”), (ii) U.S. dollar denominated (or foreign currency fully hedged to U.S. dollar)
time deposits, certificates of deposit, Eurodollar time deposits and Eurodollar certificates of
deposit of (y) any domestic commercial bank of recognized standing having capital and surplus in
excess of $250,000,000 or (z) any bank whose short-term commercial paper rating from S&P is at
least A-1 or the equivalent thereof or from Moody’s is at least P-1 or the equivalent thereof (any
such bank being an “Approved Bank”), in each case with maturities of not more than 364 days
from the date of acquisition, (iii) commercial paper and variable or fixed rate notes issued by any
Approved Bank (or by the parent company thereof) or any variable rate notes issued by, or
guaranteed by any domestic corporation rated A-1 (or the equivalent thereof) or better by S&P or
P-1 (or the equivalent thereof) or better by Moody’s and maturing within six months of the date of
acquisition, (iv) repurchase agreements with a bank or trust company (including a Lender) or a
recognized securities dealer having capital and surplus in excess of $250,000,000 for direct
obligations issued by or fully guaranteed by the United States of America, (v) obligations of any
State of the United States or any political subdivision thereof for the payment of the principal
and redemption price of and interest on which there shall have been irrevocably deposited
Government Obligations maturing as to principal and interest at times and in amounts sufficient to
provide such payment, (vi) auction preferred stock rated in the highest short-term credit rating
category by S&P or Moody’s, (vii) readily marketable tax-free municipal bonds of a domestic issuer
rated Aaa by Moody’s, or AAA by S&P, and maturing within one year from the date of issuance (and
investments in mutual funds investing primarily in those bonds) and (viii) demand deposit accounts
maintained in the ordinary course of business.



     “Change of Control” shall mean the occurrence of any of the following events: (a) any
Person or two or more Persons acting in concert shall have acquired beneficial ownership, directly
or indirectly, or shall have acquired by contract or otherwise, or shall have entered into a
contract or arrangement that, upon consummation, will result in its or their acquisition of control
over, Voting Stock (or other securities convertible into such Voting Stock) or economic interests
of the Borrower representing 20% or more of the combined voting power of the Voting Stock of the
Borrower, or (b) Continuing Directors shall cease for any reason to constitute a majority of the
members of the board of directors of the Borrower then in office. As
used herein, “beneficial ownership” shall have the meaning
provided in Rule 13d-3 of the Securities and Exchange Commission
promulgated under the Securities Exchange Act of 1934.



     “Closing Date” shall mean the date of this Credit Agreement.



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



5









 





     “Collateral” shall mean a collective reference to the collateral which is identified
in, and at any time will be covered by, the Security Documents and any other collateral that may
from time to time secure the Credit Party Obligations.



     “Commitment” shall mean the Revolving Commitment, the LOC Commitment, the Tranche B
Term Loan Commitment and the Swingline Commitment, individually or collectively, as appropriate.



     “Commitment Fee” shall have the meaning set forth in Section 2.6(a).



     “Commitment Percentage” shall mean the Revolving Commitment Percentage and/or the
Tranche B Term Loan Commitment Percentage, as appropriate.



     “Commitment Period” shall mean (a) with respect to Revolving Loans, the period from
and including the Closing Date to but excluding the Revolving Commitment Termination Date and (b)
with respect to Letters of Credit, the period from and including the Closing Date to but excluding
the date that is 30 days prior to the Revolving Commitment Termination Date.



     “Commitment Transfer Supplement” shall mean a Commitment Transfer Supplement, in
substantially the form of Schedule 9.6(c).



     “Commonly Controlled Entity” shall mean 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 of
the Code.



     “Compliance Certificate” shall have the meaning set forth in Section 5.2(b)



     “Consolidated” means, when used with reference to financial statements or financial
statement items of the Borrower and its Subsidiaries or any other Person, such statements or items
on a consolidated basis in accordance with the consolidation principles of GAAP.



     “Consolidated Capital Expenditures” shall mean, for any period, the sum of the
aggregate of any expenditures by the Borrower or any Subsidiary during such period for an asset
which will be used in a year or years subsequent to the year in which the expenditure is made and
which asset is properly classifiable in relevant financial statements of such Person as property,
equipment or improvements, fixed assets, or a similar type of capital asset in accordance with
GAAP, excluding, however, without duplication, (a) any such asset acquired in a Permitted
Acquisition, (b) any such expenditure, or portion thereof, to the extent funded (i) with the cash
proceeds of any Disposition made pursuant to Section 6.5 or (ii) with the cash proceeds of a
Recovery Event, and (c) with respect to any such expenditure by Building Systems de Mexico, S.A. de
C.V., (i) the portion thereof, if any, funded with the proceeds of a concurrent loan or capital
contribution by any shareholder of Building Systems de Mexico, S.A. de C.V. other than Borrower or
any Subsidiary of Borrower and (ii) forty-nine percent (49%) of any such expenditure, or portion
thereof, that is funded by Building Systems de Mexico, S.A. de C.V. other than from the proceeds of
concurrent loans or capital contributions from its shareholders;



6









 




provided that the
foregoing clause (c) shall be ineffective on and after the date any Credit Party, individually or
in the aggregate, owns more than 51% of the Capital Stock of Building Systems de Mexico, S.A. de
C.V.




     “Consolidated EBITDA” shall mean, for any period, for the Borrower and its
Subsidiaries, on a consolidated basis, an amount equal to the sum of (a) Consolidated Net
Income for such period, plus (b) without duplication and to the extent deducted in determining
Consolidated Net Income for any period, (i) Consolidated Interest Expense for such period, plus
(ii) federal, state, local and foreign income taxes for such period, plus (iii) depreciation and
amortization expenses for such period, plus (iv) non-cash contributions during such period to
401(k) and other employee benefit plans, plus (v) non-cash restructuring charges during such period
plus (vi) the transaction costs and expenses incurred in connection with this Credit Agreement plus
(vii) the premium paid with respect to the prepayment of the Senior Subordinated Notes in an amount
not to exceed $5,800,000, plus (viii) the non-cash write-off of the remaining deferred financing
costs related to the Existing Credit Agreement and the Senior Subordinated Notes in an amount not
to exceed $4,100,000; provided, however, in no event shall the (y) non-cash
contributions referred to in subsection (b)(iv) above exceed $7,500,000 in aggregate amount during
any four consecutive fiscal quarter period and (z) non-cash charges referred to in subsection
(b)(v) above exceed $5,000,000 in an aggregate amount during any four consecutive fiscal quarter
period. Except as otherwise specified, the applicable period shall be for the four consecutive quarters ending as of the date of
computation.



     “Consolidated Funded Debt” shall mean, on any date of calculation, Funded Debt of the
Borrower and its Subsidiaries on a Consolidated basis.



     “Consolidated Interest Expense” shall mean, for any period, for the Borrower and its
Subsidiaries, on a consolidated basis, total interest expense, whether paid or accrued (including
the interest component of Capital Leases), including, without limitation, all commitment fees,
commissions, discounts and other fees and charges owed with respect to letters of credit and net
costs under interest rate contracts and foreign exchange contracts, but excluding, however,
amortization of debt issuance costs, all as determined in conformity with GAAP. Except as otherwise specified, the applicable period shall be for the four consecutive quarters ending as of the date of
 computation.



     “Consolidated Net Income” shall mean, for any period, the net income (excluding
extraordinary losses and gains and excluding all non-recurring non-cash income and non-cash
expense, in each case net of taxes as demonstrated by the Borrower to the Administrative Agent in
reasonable detail) of the Borrower and its Subsidiaries on a Consolidated basis for such
period. Except as otherwise specified, the applicable period shall be for the four consecutive quarters ending as of the date of computation.




     “Continuing Directors” shall mean the directors of the Borrower on the Closing Date
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 a majority of the then Continuing Directors.



7









 





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



     “Copyright Licenses” shall mean any agreement, whether written or oral, providing for
the grant by or to a Person of any right under any Copyright, including, without limitation, any
thereof referred to in Schedule 3.16 to this Credit Agreement.



     “Copyrights” shall mean all copyrights of the Credit Parties and their Subsidiaries in
all works, now existing or hereafter created or acquired, all registrations and recordings thereof,
and all applications in connection therewith, whether in the United States Copyright Office or in
any similar office or agency of the United States, any state thereof or any other country or any
political subdivision thereof, or otherwise, including, without limitation, any thereof
referred to in Schedule 3.16 and all renewals thereof.



     “Credit Documents” shall mean this Credit Agreement, each of the Notes, any Joinder
Agreement, the Letters of Credit, LOC Documents and the Security Documents.



     “Credit Party” shall mean any of the Borrower and the Guarantors.



     “Credit Party Obligations” shall mean, without duplication, (i) all of the
obligations, indebtedness and liabilities of the Credit Parties to the Lenders (including the
Issuing Lender) and the Administrative Agent, whenever arising, under this Credit Agreement, the
Notes or any of the other Credit Documents, including principal, interest, fees, reimbursements and
indemnification obligations and other amounts (including, but not limited to, any interest accruing
after the occurrence of a filing of a petition of bankruptcy under the Bankruptcy Code with respect
to any Credit Party, regardless of whether such interest is an allowed claim under the Bankruptcy
Code) and (ii) solely for purposes of the Security Documents and the Guaranty, all liabilities and
obligations, whenever arising, owing from any Credit Party or any of their Subsidiaries to any
Hedging Agreement Provider arising under any Secured Hedging Agreement permitted pursuant to
Section 6.1(d).



     “Debt Issuance” shall mean the issuance of any Indebtedness for borrowed money by the
Credit Parties or any of their Subsidiaries (excluding (i) any Equity Issuance, (ii) any
Indebtedness the proceeds of which are used as consideration for a Permitted Acquisition and (iii)
any Indebtedness of the Credit Parties and their Subsidiaries permitted to be incurred pursuant to
Section 6.1(a)-(e), 6.1(g) and 6.1(h) hereof).



     “Default” shall mean any of the events specified in Section 7.1, whether or not any
requirement for the giving of notice or the lapse of time, or both, or any other condition, has
been satisfied.



     “Defaulting Lender” shall mean, at any time, any Lender that, at such time (a) has
failed to make a Loan required pursuant to the terms of this Credit Agreement, including the
funding of a Participation Interest in accordance with the terms hereof and such default remains
uncured, (b) has failed to pay to the Administrative Agent or any Lender an amount owed by such
Lender



8









 







pursuant to the terms of this Credit Agreement and such default remains uncured, or (c) has
been deemed insolvent or has become subject to a bankruptcy or insolvency proceeding or to a
receiver, trustee or similar official.



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



     “Domestic Lending Office” shall mean, initially, the office of each Lender designated
as such Lender’s Domestic Lending Office shown on Schedule 9.2; and thereafter, such other
office of such Lender (within the United States) as such Lender may from time to time specify to
the Administrative Agent and the Borrower as the office of such Lender at which Alternate Base Rate
Loans of such Lender are to be made.



     “Domestic Subsidiary” shall mean any Subsidiary that is organized and existing under
the laws of the United States or any state or commonwealth thereof or under the laws of the
District of Columbia.



     “Environmental Laws” means any and all Federal, state, local, and foreign statutes,
laws, regulations, ordinances, rules, judgments, orders, decrees, permits, concessions, grants,
franchises, licenses, agreements or governmental restrictions of, by or with any Governmental
Authority relating to pollution and the protection of the environment or the release of any
materials into the environment, including those related to hazardous substances or wastes, air
emissions and discharges to waste or public systems.



     “Equity Issuance” shall mean any issuance by any Credit Party or any Subsidiary to any
Person which is not a Credit Party of (a) shares of its Capital Stock, (b) any shares of its
Capital Stock pursuant to the exercise of options or warrants or (c) any shares of its Capital
Stock pursuant to the conversion of any debt securities to equity. The term “Equity Issuance” shall not include (i) any Asset Disposition,
(ii) any Debt Issuance, (iii) or any issuance of shares of Capital Stock of the Borrower as consideration for a Permitted Acquisition or the proceeds
of which are used as consideration for a Permitted Acquisition within the time periods set forth in Section 2.8 or (iv) shares of the Borrower’s Capital Stock
issued as restricted stock awards or otherwise pursuant to the exercise or fulfillment of options, warrants or awards or pursuant to the Borrower’s Stock
Option Plan, the 2003 Long-Term Stock Incentive Plan and any similar plan adopted by the Borrower in replacement thereof or in addition thereto, each as may
be amended, modified or supplemented from time to time
 .



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



     “Eurodollar Reserve Percentage” shall mean for any day, the percentage (expressed as a
decimal and rounded upwards, if necessary, to the next higher 1/100th of 1%) which is in effect for
such day as prescribed by the Federal Reserve Board (or any successor) for determining the maximum
reserve requirement (including without limitation any basic, supplemental or emergency reserves) in
respect of Eurocurrency liabilities, as defined in Regulation D of such Board as in effect from
time to time, or any similar category of liabilities for a member bank of the Federal Reserve
System in New York City.



9









 





     “Event of Default” shall mean any of the events specified in Section 7.1;
provided, however, that any requirement for the giving of notice or the lapse of
time, or both, or any other condition, has been satisfied.



     “Excess Cash Flow” shall mean, for any period, for the Borrower and its Subsidiaries,
on a consolidated basis, an amount equal to (without duplication) the sum of (a) Consolidated
EBITDA for such period, minus (b) actual Consolidated Capital Expenditures for such period, minus
(c) Consolidated Interest Expense for such period, minus (d) federal, state, local and foreign
income taxes paid in cash for such period, minus (e) scheduled payments and voluntary prepayments
of Indebtedness (excluding prepayments of the Revolving Loans unless they result in a pro rata
reduction of the Revolving Committed Amount) during such period, minus (f) Restricted Payments made
hereunder during such period, minus (g) any increases in Working Capital for such period, plus (h)
any decreases in Working Capital for such period, minus (i) the non-financed cash portion of the
consideration paid for any Permitted Acquisition paid during such period.



     “Existing Credit Agreement” shall mean that certain Credit Agreement dated as of
September 13, 2002, as amended, restated, supplemented or otherwise modified, by and among the
Borrower, the guarantors party thereto, Wachovia Bank, National Association, Bank of America, N.A.
and the other lenders party thereto.



     “Existing Letter of Credit” shall mean each of the letters of credit described by date
of issuance, amount, purpose and the date of expiry on Schedule 1.1(b) hereto.



     “Extension of Credit” shall mean, as to any Lender, the making of a Loan by such
Lender or the issuance of, or participation in, a Letter of Credit by such Lender.



     “Federal Funds Effective Rate” shall have the meaning set forth in the definition of
“Alternate Base Rate”.



     “Fee Letter” shall mean the letter agreement dated May 5, 2004, addressed to the
Borrower from Wachovia, Bank of America and the Arrangers, as amended, modified or otherwise
supplemented.



     “Foreign Subsidiary” shall mean any Subsidiary that is not a Domestic Subsidiary.



     “Fronting Fee” shall have the meaning set forth in Section 2.6(b).



     “Fund” shall mean any trust, limited or general partnership, limited liability company,
corporation or other limited purpose entity that invests in loans.



     “Funded Debt” means, as of any date of determination, for the Borrower and its
Subsidiaries on a consolidated basis, the following (without duplication):




     (a) obligations for borrowed money and all obligations evidenced by bonds,



10









 







debentures, notes, loan agreements or other similar instruments;




     (b) Attributable Indebtedness in respect of Capital Leases and Synthetic Lease Obligations;




     (c) obligations in respect of any Redeemable Stock;




     (d) any direct or contingent obligations arising under letters of credit (including standby
and commercial), banker’s acceptances, bank guaranties, surety bonds and similar instruments;




     (e) all obligations to pay the deferred purchase price of property or services (other than
trade payables incurred in the ordinary course of business or accrued liabilities arising in the
ordinary course of business that are not overdue or that are being contested in good faith), and
indebtedness (excluding prepaid interest thereon) secured by a Lien on property owned or being
purchased (including indebtedness arising under conditional sales or other title retention
agreements), whether or not such indebtedness shall have been assumed or is limited in recourse;




     (f) net obligations under any Hedging Agreement;




     (g) Guaranty Obligations with respect to obligations of the type specified in subsections (a)
through (f) above of Persons other than the Borrower or any of its Subsidiaries; and




     (h) all Indebtedness of the types referred to in subsections (a) through (g) above of any
partnership or joint venture (other than a joint venture that is itself a corporation or limited
liability company) in which the Borrower or a Subsidiary is a general partner or joint venturer,
unless such Indebtedness is expressly made non-recourse to the Borrower or such Subsidiary.



     “GAAP” shall mean generally accepted accounting principles in effect in the United
States of America applied on a consistent basis, subject, however, in the case of
determination of compliance with the financial covenants set out in Section 5.9, to the provisions
of Section 1.3.



     “Government Acts” shall have the meaning set forth in Section 2.19.



     “Governmental Approvals” shall mean all authorizations, consents, approvals, permits,
licenses and exemptions of, registrations and filings with, and reports to, all Governmental
Authorities.



     “Governmental Authority” shall mean 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.



11









 





     “Guarantor” shall have the meaning set forth in the first paragraph of this Credit
Agreement.



     “Guaranty” shall mean the guaranty of the Guarantors set forth in Article X.



     “Guaranty Obligations” shall mean, with respect to any Person, without duplication,
any obligations of such Person (other than endorsements in the ordinary course of business of
negotiable instruments for deposit or collection) guaranteeing or intended to guarantee any
Indebtedness of any other Person in any manner, whether direct or indirect, and including without
limitation any obligation, whether or not contingent, (i) to purchase any such Indebtedness or any
property constituting security therefor, (ii) to advance or provide funds or other support for the
payment or purchase of any such Indebtedness or to maintain working capital, solvency or other
balance sheet condition of such other Person (including without limitation keep well agreements,
maintenance agreements, comfort letters or similar agreements or arrangements) for the benefit of
any holder of Indebtedness of such other Person, (iii) to lease or purchase property, securities or
services primarily for the purpose of assuring the holder of such Indebtedness, or (iv) to
otherwise assure or hold harmless the holder of such Indebtedness against loss in respect thereof.
The amount of any Guaranty Obligation hereunder shall (subject to any limitations set forth
therein) be deemed to be an amount equal to the outstanding principal amount (or maximum principal
amount, if larger) of the Indebtedness in respect of which such Guaranty Obligation is made.



     “Hedging Agreement Provider” shall mean any Person that enters into a Secured Hedging
Agreement with a Credit Party or any of its Subsidiaries that is permitted by Section 6.1(d) to the
extent such Person is a Lender, an Affiliate of a Lender or any other Person that was a Lender (or
an Affiliate of a Lender) at the time it entered into the Secured Hedging Agreement but has ceased
to be a Lender (or whose Affiliate has ceased to be a Lender) under the Credit Agreement.



     “Hedging Agreements” shall mean, with respect to any Person, any agreement entered
into to protect such Person against fluctuations in interest rates, or currency or raw materials
values, including, without limitation, any interest rate swap, cap or collar agreement or similar
arrangement between such Person and one or more counterparties, any foreign currency exchange
agreement, currency protection agreements, commodity purchase or option agreements or other
interest or exchange rate hedging agreements.



     “Immaterial Subsidiary” shall mean any Domestic Subsidiary that (a) has assets with a
book value of less than or equal to $1,000,000 and (b) does not have any Indebtedness outstanding.



     “Incremental Facility” shall have the meaning set forth in Section 2.5.



     “Indebtedness” shall mean, with respect to any Person, without duplication, (a) all
obligations of such Person for borrowed money, (b) all obligations of such Person evidenced by
bonds, debentures, notes or similar instruments, or upon which interest payments are customarily
made, (c) all obligations of such Person under conditional sale or other title retention agreements
relating to property purchased by such Person (other than customary reservations or retentions of



12









 







title under agreements with suppliers entered into in the ordinary course of business), (d) all
obligations of such Person issued or assumed as the deferred purchase price of property or services
purchased by such Person (other than trade debt incurred in the ordinary course of business and due
within six months of the incurrence thereof) which would appear as liabilities on a balance sheet
of such Person, (e) all obligations of such Person under take-or-pay or similar arrangements or
under commodities agreements, (f) all Indebtedness of others secured by (or for which the holder of
such Indebtedness has an existing right, contingent or otherwise, to be secured by) any Lien on, or
payable out of the proceeds of production from, property owned or acquired by such Person, whether
or not the obligations secured thereby have been assumed, (g) all Guaranty Obligations of such
Person with respect to Indebtedness of another Person, (h) the principal portion of all Capital
Lease Obligations of such Person, (i) all net obligations of such Person under Hedging Agreements,
excluding any portion thereof which would be accounted for as interest expense under GAAP, (j) the
maximum amount of all letters of credit issued or bankers’ acceptances facilities created for the
account of such Person and, without duplication, all drafts drawn thereunder (to the extent
unreimbursed), (k) all preferred Capital Stock issued by such Person and which by the terms thereof
could be (at the request of the holders thereof or otherwise) subject to mandatory sinking fund
payments, redemption or other acceleration, (l) the principal portion of all Synthetic Lease
Obligations of such Person and (m) the Indebtedness of any partnership or unincorporated joint
venture in which such Person is a general partner or a joint venturer.



     “Insolvency” shall mean, with respect to any Multiemployer Plan, the condition that
such Plan is insolvent within the meaning of such term as used in Section 4245 of ERISA.



     “Intellectual Property” shall mean the Copyrights, Copyright Licenses, Patents, Patent
Licenses, Trademarks and Trademark Licenses of the Credit Parties and their Subsidiaries, all
goodwill associated therewith and all rights to sue for infringement thereof.



     “Interest Coverage Ratio” shall mean, with respect to the Borrower and its
Subsidiaries on a Consolidated basis for the twelve month period ending on the last day of any
fiscal quarter of the Borrower and its Subsidiaries, the ratio of (a) Consolidated EBITDA for such
period to (b) Consolidated Interest Expense for such period.



     “Interest Payment Date” shall mean (a) as to any Alternate Base Rate Loan, the last
day of each March, June, September and December and on the applicable Maturity Date, (b) as to any
LIBOR Rate Loan having an Interest Period of three months or less, the last day of such Interest
Period, and (c) as to any LIBOR Rate Loan having an Interest Period longer than three months, (i)
each three (3) month anniversary following the first day of such Interest Period and (ii) the last
day of such Interest Period.



     “Interest Period” shall mean, with respect to any LIBOR Rate Loan,




     (i) initially, the period commencing on the Borrowing Date or conversion date, as the
case may be, with respect to such LIBOR Rate Loan and ending one, two, three or six months
thereafter, as selected by the Borrower in the Notice of Borrowing or Notice of Conversion
given with respect thereto; and



13









 






     (ii) thereafter, each period commencing on the last day of the immediately preceding
Interest Period applicable to such LIBOR Rate 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; provided that the foregoing provisions are subject to the
following:




     (A) if any Interest Period pertaining to a LIBOR Rate Loan 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 pertaining to a LIBOR Rate Loan 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 the relevant calendar month;




     (C) if the Borrower shall fail to give notice as provided above, the Borrower
shall be deemed to have selected an Alternate Base Rate Loan to replace the affected
LIBOR Rate Loan;




     (D) no Interest Period in respect of any Loan shall extend beyond the
applicable Maturity Date and, further with regard to the Tranche B Term Loans, no
Interest Period shall extend beyond any principal amortization payment date unless
the portion of such Tranche B Term Loan consisting of Alternate Base Rate Loans
together with the portion of such Tranche B Term Loan consisting of LIBOR Rate Loans
with Interest Periods expiring prior to or concurrently with the
date such principal amortization payment date is due, is at least equal to the
amount of such principal amortization payment due on such date; and




     (E) no more than fifteen (15) LIBOR Rate Loans may be in effect at any time.
For purposes hereof, LIBOR Rate Loans with different Interest Periods shall be
considered as separate LIBOR Rate Loans, even if they shall begin on the same date,
although borrowings, extensions and conversions may, in accordance with the
provisions hereof, be combined at the end of existing Interest Periods to constitute
a new LIBOR Rate Loan with a single Interest Period.



     “Investment” shall mean (a) the acquisition (whether for cash, property, services,
assumption of Indebtedness, securities or otherwise) of assets, shares of Capital Stock, bonds,
notes, debentures, partnership, joint ventures or other ownership interests or other securities of
any Person or (b) any deposit with, or advance, loan or other extension of credit to, such Person
(other than deposits made in connection with the purchase of equipment or other assets in the
ordinary course of business or in connection with contracts for goods and services in the ordinary
course of its business) or (c) any other capital contribution to or investment in such Person,



14









 







including, without limitation, any Guaranty Obligation (including any support for a letter of
credit issued on behalf of such Person) incurred for the benefit of such Person.



     “Issuing Lender” shall mean (a) with respect to the Existing Letters of Credit, Bank
of America and (b) with respect to any Letter of Credit other than the Existing Letters of Credit,
Wachovia.



     “Issuing Lender Fees” shall have the meaning set forth in Section 2.6(c).



     “Joinder Agreement” shall mean a Joinder Agreement in substantially the form of
Schedule 5.10, executed and delivered by an Additional Credit Party in accordance with the
provisions of Section 5.10.



     “Lender” shall have the meaning set forth in the first paragraph of this Credit
Agreement.



     “Letters of Credit” shall mean (a) any letter of credit issued by the Issuing Lender
pursuant to the terms hereof and (b) any Existing Letter of Credit, in each case as such letter of
credit may be amended, modified, extended, renewed or replaced from time to time.



     “Letter of Credit Fee” shall have the meaning set forth in Section 2.6(b).



     “Leverage Ratio” shall mean the ratio of (i) Consolidated Funded Debt to (ii)
Consolidated EBITDA.



     “LIBOR” shall mean, for any LIBOR Rate Loan for any Interest Period therefor, the rate
per annum (rounded upwards, if necessary, to the nearest 1/100 of 1%) appearing on Telerate Page
3750 (or any successor page) as the London interbank offered rate for deposits in Dollars at
approximately 11:00 A.M. (London time) two Business Days prior to the first day of such Interest
Period for a term comparable to such Interest Period. If for any reason such rate is not
available, the term “LIBOR” shall mean, for any LIBOR Rate Loan for any Interest Period therefor,
the rate per annum (rounded upwards, if necessary, to the nearest 1/100 of 1%)
appearing on Reuters Screen LIBO Page as the London interbank offered rate for deposits in
Dollars at approximately 11:00 A.M. (London time) two Business Days prior to the first day of such
Interest Period for a term comparable to such Interest Period; provided, however,
if more than one rate is specified on Reuters Screen LIBO Page, the applicable rate shall be the
arithmetic mean of all such rates (rounded upwards, if necessary, to the nearest 1/100 of 1%). If,
for any reason, neither of such rates is available, then “LIBOR” shall mean the rate per annum at
which, as determined by the Administrative Agent, Dollars in an amount comparable to the Loans then
requested are being offered to leading banks at approximately 11:00 A.M. London time, two (2)
Business Days prior to the commencement of the applicable Interest Period for settlement in
immediately available funds by leading banks in the London interbank market for a period equal to
the Interest Period selected.



     “LIBOR Lending Office” shall mean, initially, the office of each Lender designated as
such Lender’s LIBOR Lending Office shown on Schedule 9.2; and thereafter, such other office
of such Lender as such Lender may from time to time specify to the Administrative Agent and



15









 




the Borrower as the office of such Lender at which the LIBOR Rate Loans of such Lender are to be made.


     “LIBOR Rate” shall mean a rate per annum (rounded upwards, if necessary, to the next
higher 1/100th of 1%) determined by the Administrative Agent pursuant to the following formula:



	 	 	 	 	 
	LIBOR Rate =
	 	LIBOR	 	 
	 

	 	 

1.00  - Eurodollar Reserve Percentage
	 	 






     “LIBOR Rate Loan” shall mean Loans the rate of interest applicable to which is based
on the LIBOR Rate.



     “Lien” shall mean any mortgage, pledge, hypothecation, assignment, 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 Capital Lease having substantially the same economic effect as any of the foregoing).



     “Loan” shall mean a Revolving Loan, a Swingline Loan and/or the Tranche B Term Loan,
as appropriate.



     “LOC Commitment” shall mean the commitment of the Issuing Lender to issue Letters of
Credit and with respect to each Lender that has a Revolving Commitment, the commitment of such
Lender to purchase Participation Interests in the Letters of Credit up to such Lender’s LOC
Committed Amount as specified in Schedule 2.1(a), as such amount may be reduced from time
to time in accordance with the provisions hereof.



     “LOC Committed Amount” shall have the meaning set forth in Section 2.3(a).



     “LOC Documents” shall mean, with respect to any Letter of Credit, such Letter of
Credit, any amendments thereto, any documents delivered in connection therewith, any application
therefor, and any agreements, instruments, guarantees or other documents (whether general in
application or applicable only to such Letter of Credit) governing or providing for (i) the rights
and obligations of the parties concerned or (ii) any collateral security for such obligations.



     “LOC Obligations” shall mean, at any time, the sum of (i) the maximum amount which is,
or at any time thereafter may become, available to be drawn under Letters of Credit then
outstanding (including any Existing Letters of Credit), assuming compliance with all requirements
for drawings referred to in such Letters of Credit plus (ii) the aggregate amount of all
drawings under Letters of Credit honored by the Issuing Lender but not theretofore reimbursed.



     “Mandatory LOC Borrowing” shall have the meaning set forth in Section 2.3(e).



     “Mandatory Swingline Borrowing” shall have the meaning set forth in Section
2.4(b)(ii).



16









 





     “Material Adverse Effect” shall mean a material adverse effect on (a) the business,
operations, property, assets or condition (financial or otherwise) of the Borrower or of the Credit
Parties and their Subsidiaries taken as a whole, (b) the ability of the Borrower or of the Credit
Parties and their Subsidiaries, taken as a whole, to perform its or their obligations, as
applicable, when such obligations are required to be performed, under this Credit Agreement, any of
the Notes or any other Credit Document or (c) the validity or enforceability of this Credit
Agreement, any of the Notes or any of the other Credit Documents or the rights or remedies of the
Administrative Agent or the Lenders hereunder or thereunder.



     “Material Contract” shall mean any contract, agreement, permit or license, written or
oral, of the Credit Parties or any of their Subsidiaries the failure to comply with which could
reasonably be expected to have a Material Adverse Effect.



     “Materials of Environmental Concern” shall mean any gasoline or petroleum (including
crude oil or any fraction thereof) or petroleum products or any hazardous or toxic substances,
materials or wastes, defined or regulated as such in or under any Environmental Law, including,
without limitation, asbestos, polychlorinated biphenyls and urea-formaldehyde insulation.



     “Maturity Date” shall mean (a) with respect to the Tranche B Term Loan, the Tranche B
Term Loan Maturity Date and (b) with respect to the Revolving Loans and Swingline Loans, the
Revolving Commitment Termination Date.



     “Mexico Acquisition” shall mean the acquisition of all of the outstanding Voting Stock
of Building Systems de Mexico, S.A. de C.V. not owned by the Borrower on the date of this
Agreement; provided that (i) no Default or Event of Default shall then exist or would exist
after giving effect thereto, (ii) the Credit Parties shall demonstrate to the reasonable
satisfaction of the Administrative Agent that, after giving effect to the acquisition on a pro
forma basis, the Credit Parties are in compliance with each of the financial covenants set forth in
Section 5.9 and (iii) the Administrative Agent, on behalf of the Lenders, shall have received a 65%
(or such higher percentage that would not result in a material adverse tax consequence) pledge of
the Capital Stock of Building Systems de Mexico, S.A. de C.V.



     “Moody’s” shall mean Moody’s Investors Service, Inc.



     “Multiemployer Plan” shall mean a Plan that is a multiemployer plan as defined in
Section 4001(a)(3) of ERISA.



     “Net Cash Proceeds” shall mean the aggregate cash proceeds received by the Borrower or
any Subsidiary in respect of any Asset Disposition, Equity Issuance, Debt Issuance or Recovery
Event, net of (a) direct costs (including, without limitation, legal, accounting and investment
banking fees, and sales commissions, in each case payable to non-Affiliates) associated therewith,
(b) amounts held in escrow to be applied as part of the purchase price of any Asset Disposition,
(c) taxes paid or payable by a Credit Party as a result thereof, (d) the amount paid or payable in
respect of the outstanding principal amount of, premium or penalty, if any, and interest on any
Indebtedness (other than the Credit Party Obligations) that is secured by a Lien



17









 







on the asset in question, if any, to the extent required to be paid and (e) the amount of any reserve reasonably
maintained by the Borrower and its Subsidiaries with respect to indemnification obligations owing
pursuant to the definitive documentation pursuant to which such event is consummated (with any
unused portion of such reserve to constitute Net Cash Proceeds on the date upon which the
indemnification obligations terminate or such reserve is reduced other than in connection with a
payment); it being understood that “Net Cash Proceeds” shall include, without limitation, any cash
received upon the sale or other disposition of any non-cash consideration received by the Borrower
or any Subsidiary in any Asset Disposition, Equity Issuance, Debt Issuance or Recovery Event and
any cash released from escrow as part of the purchase price in connection with any Asset
Disposition.



     “Note” or “Notes” shall mean the Revolving Notes, the Swingline Note and/or
the Tranche B Term Notes, collectively, separately or individually, as appropriate.



     “Notice of Borrowing” shall mean a request for a Revolving Loan borrowing pursuant to
Section 2.1(b)(i) or a Swingline Loan borrowing pursuant to Section 2.4(b)(i), as appropriate. A
Form of Notice of Borrowing is attached as Schedule 2.1(b)(i).



     “Notice of Conversion” shall mean the written notice of extension or conversion as
referenced and defined in Section 2.10.



     “Obligations” shall mean, collectively, Loans and LOC Obligations.



     “Participant” shall have the meaning set forth in Section 9.6(b).



     “Participation Interest” shall mean a participation interest purchased by a Revolving
Lender in LOC Obligations as provided in Section 2.3(c) and in Swingline Loans as provided in
Section 2.4.



     “Patent Licenses” shall mean all agreements, whether written or oral, providing for
the grant by or to a Person of any right to manufacture, use or sell any invention covered by a
Patent, including, without limitation, any thereof referred to in Schedule 3.16 to the
Credit Agreement.



     “Patents” shall mean all letters patent of the United States or any other country, now
existing or hereafter arising, and all improvement patents, reissues, reexaminations, patents of
additions, renewals and extensions thereof, including, without limitation, any thereof referred to
in Schedule 3.16 to this Credit Agreement, and (ii) all applications for letters patent of
the United States or any other country, now existing or hereafter arising, and all provisionals,
divisions, continuations and continuations-in-part and substitutes thereof, including, without
limitation, any thereof referred to in Schedule 3.16 to this Credit Agreement.



     “Patriot Act” shall have the meaning set forth in Section 9.18.



     “PBGC” shall mean the Pension Benefit Guaranty Corporation established pursuant to
Subtitle A of Title IV of ERISA.



18









 





     “Permitted Acquisition” shall mean (a) the Mexico Acquisition and (b) an acquisition
or any series of related acquisitions by a Credit Party of (i) all or substantially all of the
assets or a majority of the outstanding Voting Stock or economic interests of a Person that is
incorporated, formed or organized in the United States or (ii) any division, line of business or
other business unit of a Person that is incorporated, formed or organized in the United States
(such Person or such division, line of business or other business unit of such Person shall be
referred to herein as the “Target”), in each case that is a type of business (or assets
used in a type of business) permitted to be engaged in by the Credit Parties and their Subsidiaries
pursuant to Section 6.4 hereof, so long as (A) no Default or Event of Default shall then exist or
would exist after giving effect thereto, (B) the Credit Parties shall demonstrate to the reasonable
satisfaction of the Administrative Agent that, after giving effect to the acquisition on a pro
forma basis, the Credit Parties are in compliance with each of the financial covenants set forth in
Section 5.9 and (C) the Administrative Agent, on behalf of the Lenders, shall have received (or
shall receive in connection with the closing of such acquisition) a first priority perfected
security interest (subject to Permitted Liens) in all Collateral (including, without limitation,
Capital Stock) acquired with respect to the Target in accordance with the terms of Sections 5.10
and 5.12 and the Target, if a Person, shall have executed a Joinder Agreement in accordance with
the terms of Section 5.10.



     “Permitted Investments” shall mean:




     (i) cash and Cash Equivalents;




     (ii) Investments set forth on Schedule 1.1(c);




     (iii) receivables owing to the Credit Parties or any of their Subsidiaries or any
receivables and advances to suppliers, in each case if created, acquired or made in the
ordinary course of business and payable or dischargeable in accordance with customary trade
terms;




     (iv) Investments in and loans to any Credit Party by any other Credit Party;




     (v) loans to employees and advances to employees and directors (to the extent such
advances to directors comply with the Sarbanes-Oxley Act of 2002) in an aggregate amount
not to exceed $1,000,000 at any time outstanding;




     (vi) Investments (including debt obligations) received in connection with the
bankruptcy or reorganization of suppliers and customers and in settlement of delinquent
obligations of, and other disputes with, customers and suppliers arising in the ordinary
course of business;




     (vii) Investments, acquisitions or transactions permitted under Section 6.5(b); and




     (viii) additional loan advances and/or Investments in an aggregate amount not to exceed
$10,000,000 at any time outstanding.



19









 





     “Permitted Liens” shall mean:




     (i) Liens created by or otherwise existing under or in connection with this Credit
Agreement or the other Credit Documents in favor of the Lenders;




     (ii) Liens in favor of a Hedging Agreement Provider in connection with a Secured
Hedging Agreement, but only if such Hedging Agreement Provider and the Administrative Agent,
on behalf of the Lenders, shall share pari passu in the collateral subject
to such Liens;




     (iii) Liens securing purchase money indebtedness and Capital Lease Obligations (and
refinancings thereof) to the extent permitted under Section 6.1(c); provided, that
(A) any such Lien attaches to such property concurrently with or within 30 days after the
acquisition thereof and (B) such Lien attaches solely to the property so acquired in such
transaction;




     (iv) Liens for taxes, assessments, charges or other governmental levies not yet due or
as to which the period of grace (not to exceed 60 days), if any, related thereto has not
expired or which are being contested in good faith by appropriate proceedings;
provided that 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 (or, in the
case of Subsidiaries with significant operations outside of the United States of America,
generally accepted accounting principles in effect from time to time in their respective
jurisdictions of incorporation);




     (v) statutory Liens such as carriers’, warehousemen’s, mechanics’, materialmen’s,
landlords’, repairmen’s or other like Liens arising in the ordinary course of business which
are not overdue for a period of more than 30 days or which are being contested in good faith
by appropriate proceedings and for which adequate reserves are maintained on the books of
the Borrower or its Subsidiaries, as the case may be, in conformity with GAAP;




     (vi) pledges or deposits in connection with workers’ compensation, unemployment
insurance and other social security legislation and deposits securing liability to insurance
carriers under insurance or self-insurance arrangements;




     (vii) deposits to secure the performance of bids, trade contracts (other than for
borrowed money), leases, statutory obligations, surety and appeal bonds, performance bonds
and other obligations of a like nature incurred in the ordinary course of business;




     (viii) easements, rights of way, restrictions and other similar encumbrances affecting
real property which, in the aggregate, are not substantial in amount, and which
do not in any case materially detract from the value of the property subject thereto or
materially interfere with the ordinary conduct of the business of the applicable Person;



20









 






     (ix) any extension, renewal or replacement (or successive extensions, renewals or
replacements), in whole or in part, of any Lien referred to in the foregoing clauses;
provided that such extension, renewal or replacement Lien shall be limited to all or
a part of the property which secured the Lien so extended, renewed or replaced (plus
improvements on such property);




     (x) Liens on the assets of any entity existing at the time such assets are acquired by
the Borrower or any Subsidiary, whether by merger, consolidation, purchase of assets or
otherwise so long as (i) such Liens (A) are not created, incurred or assumed in
contemplation of such assets being acquired by the Borrower or any Subsidiary, and (B) do
not extend to any other assets of the Borrower or any Subsidiary; and (ii) the amount of
Indebtedness secured by all such Liens shall not exceed $15,000,000 in aggregate principal
amount at any time; and




     (xi) Liens existing on the Closing Date and set forth on Schedule 1.1(d);
provided that no such Lien shall at any time be extended to cover property or assets other
than the property or assets subject thereto on the Closing Date and improvements thereon and
(b) the principal amount of the Indebtedness secured by such Lien shall not be increased.



     “Person” shall mean 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.



     “Plan” shall mean, at any particular time, any employee benefit plan which is covered
by Title IV of ERISA and in respect of which the Borrower or a Commonly Controlled Entity is (or,
if such plan were terminated at such time, would under Section 4069 of ERISA be deemed to be) an
“employer” as defined in Section 3(5) of ERISA.



     “Pledge Agreement” shall mean the Pledge Agreement dated as of the Closing Date given
by the Borrower and the Guarantors to the Administrative Agent, for the benefit of the Lenders, as
the same may from time to time be amended, supplemented or otherwise modified in accordance with
the terms hereof and thereof.



     “Prime Rate” shall have the meaning set forth in the definition of Alternate Base
Rate.



     “Purchasing Lenders” shall have the meaning set forth in Section 9.6(c).



     “Recovery Event” shall mean the receipt by the Credit Parties or any of their
Subsidiaries of any cash insurance proceeds or condemnation award payable by reason of theft, loss,
physical destruction or damage, taking or similar event with respect to any of their respective
property or assets other than obsolete property or assets no longer used or useful in the business
of the Credit Parties or any of their Subsidiaries.



     “Redeemable Stock” shall mean any Capital Stock of the Borrower or any of its
Subsidiaries which prior to the date which is six months after the Tranche B Term Loan Maturity



21









 







Date may be (a) mandatorily redeemable, (b) redeemable at the option of the holder thereof or (c)
convertible into Indebtedness.



     “Register” shall have the meaning set forth in Section 9.6(d).



     “Reimbursement Obligation” shall mean the obligation of the Borrower to reimburse the
Issuing Lender pursuant to Section 2.3(d) for amounts drawn under Letters of Credit.



     “Reorganization” shall mean, with respect to any Multiemployer Plan, the condition
that such Plan is in reorganization within the meaning of such term as used in Section 4241 of
ERISA.



     “Reportable Event” shall mean 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 PBGC Reg. §4043.



     “Required Lenders” shall mean Lenders holding in the aggregate more than 50% of the
sum of (i) all Revolving Loans and LOC Obligations then outstanding at such time plus the
aggregate unused Revolving Commitments at such time (treating for purposes hereof in the case of
LOC Obligations, in the case of the Issuing Lender and the Swingline Lender, only the portion of
the LOC Obligations of the Issuing Lender and Swingline Loans of the Swingline Lender which are not
subject to the Participation Interests of the other Lenders and, in the case of the Lenders other
than the Issuing Lender and the Swingline Lender, the Participation Interests of such Lenders in
LOC Obligations and the Swingline Loans hereunder as direct Obligations) and (ii) the principal
amount of the Tranche B Term Loan then outstanding at such time; provided, however,
that if any Lender shall be a Defaulting Lender at such time, then there shall be excluded from the
determination of Required Lenders, Obligations (including Participation Interests) owing to such
Defaulting Lender and such Defaulting Lender’s Commitments, or after termination of the
Commitments, the principal balance of the Obligations owing to such Defaulting Lender.



     “Requirement of Law” shall mean, as to any Person, the Certificate of Incorporation
and By-laws or other organizational or governing documents of such Person, and each law, 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 property or to which such Person
or any of its property is subject.



     “Responsible Officer” shall mean, as to (a) the Borrower, the chief executive officer,
president, the chief financial officer or treasurer or (b) any other Credit Party, any duly
authorized officer thereof.



     “Restricted Payment” shall mean (a) any dividend or other distribution, direct or
indirect, on account of any shares of any class of Capital Stock of a Credit Party, now or
hereafter outstanding, (b) any redemption, retirement, sinking fund or similar payment, purchase or
other acquisition for value, direct or indirect, of any shares of any class of Capital Stock of the
Credit Parties or any of their Subsidiaries, now or hereafter outstanding, (c) any payment made to
retire,



22









 







or to obtain the surrender of, any outstanding warrants, options or other rights to acquire
shares of any class of Capital Stock of the Credit Parties or any of their Subsidiaries, now or
hereafter outstanding (excluding any stock appreciation payments or payments in lieu of issuance of
Capital Stock made pursuant to the Borrower’s 2003 Long-Term Stock Incentive Plan, as may be
amended, modified or supplemented from time to time), (d) any payment, prepayment, redemption or
similar payment with respect to the Subordinated Debt of any Credit Party or any of its
Subsidiaries and (e) the payment by any Credit Party of any management or consulting fee to any
Person or of any salary, bonus or other form of compensation to any Person who is directly or
indirectly a significant partner, shareholder, owner or executive officer of any such Person, to
the extent such salary, bonus or other form of compensation is not included in the corporate
overhead of such Credit Party.



     “Revolving Commitment” shall mean, with respect to each Revolving Lender, the
commitment of such Revolving Lender to make Revolving Loans in an aggregate principal amount at any
time outstanding up to an amount equal to such Revolving Lender’s Revolving Commitment Percentage
of the Revolving Committed Amount.



     “Revolving Commitment Percentage” shall mean, for each Revolving Lender, the
percentage identified as its Revolving Commitment Percentage on Schedule 2.1(a) or in the
Register, as such percentage may be modified in connection with any assignment made in accordance
with the provisions of Section 9.6(c).



     “Revolving Commitment Termination Date” shall mean the date that is five (5) years
from the Closing Date.



     “Revolving Committed Amount” shall have the meaning set forth in Section 2.1(a).



     “Revolving Lender” shall mean, as of any date of determination, a Lender holding a
Revolving Commitment on such date.



     “Revolving Loan” shall have the meaning set forth in Section 2.1.



     “Revolving Note” or “Revolving Notes” shall mean the promissory notes of the
Borrower provided pursuant to Section 2.1(e) in favor of each of the Revolving Lenders evidencing
the Revolving Loans, individually or collectively, as appropriate, as such promissory notes may be
amended, modified, restated, supplemented, extended, renewed or replaced from time to time.



     “S&P” shall mean Standard & Poor’s Ratings Services, a division of The McGraw Hill
Companies, Inc.



     “Secured Hedging Agreement” shall mean any Hedging Agreement between a Credit Party
and a Hedging Agreement Provider, as amended, modified, supplemented, extended or restated from
time to time.



23









 





     “Security Agreement” shall mean the Security Agreement dated as of the Closing Date
given by the Borrower and the Guarantors to the Administrative Agent, for the benefit of the
Lenders, as amended, modified or supplemented from time to time in accordance with its terms.



     “Security Documents” shall mean the Security Agreement, the Pledge Agreement and such
other documents, agreements and instruments executed and delivered and/or filed in connection with
the attachment and perfection of the Administrative Agent’s security interests and liens arising
thereunder, including, without limitation, UCC financing statements and patent, trademark and
copyright filings.



     “Senior Funded Debt” shall mean, as of any date of determination, with respect to any
Person, all Consolidated Funded Debt (including, without limitation, the Obligations hereunder)
that is not subordinated in right of payment to the Credit Party Obligations.



     “Senior Leverage Ratio” shall mean the ratio of (i) Senior Funded Debt to (ii)
Consolidated EBITDA.



     “Senior Subordinated Notes” shall mean the Indebtedness of the Borrower, issued
pursuant to that certain Indenture, dated as of May 5, 1999, by and between the Borrower and The
Bank of New York (as successor in interest to Harris Trust Company of New York), and maturing May
5, 2009.


     “Single Employer Plan” shall mean any Plan that is not a Multiemployer Plan.



     “Specified Sales” shall mean (a) the sale, transfer, lease or other disposition of
inventory and materials in the ordinary course of business and (b) the sale, transfer or other
disposition of cash or Cash Equivalents into cash or other Cash Equivalents.



     “Subordinated Debt” shall mean any Indebtedness incurred by any Credit Party which by
its terms is specifically subordinated in right of payment to the prior payment of the Credit Party
Obligations and contains subordination and other terms acceptable to the Administrative Agent,
including, without limitation, the debt evidenced by the Senior Subordinated Notes.



     “Subsidiary” shall mean, as to any Person, a corporation, partnership, limited
liability company or other entity 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 or other entity are at the time owned, or the management
of which is otherwise controlled, directly or indirectly through one or more intermediaries, or
both, by such Person. Unless otherwise qualified, all references to a “Subsidiary” or to
“Subsidiaries” in this Credit Agreement shall refer to a Subsidiary or Subsidiaries of the
Borrower.



     “Swingline Commitment” shall mean the commitment of the Swingline Lender to make
Swingline Loans in an aggregate principal amount at any time outstanding up to the Swingline
Committed Amount, and the commitment of the Revolving Lenders to purchase participation



24









 







interests in the Swingline Loans as provided in Section 2.4(b)(ii), as such amounts may be reduced from time
to time in accordance with the provisions hereof.



     “Swingline Committed Amount” shall mean the amount of the Swingline Lender’s Swingline
Commitment as specified in Section 2.4(a).



     “Swingline Lender” shall mean Wachovia and any successor swingline lender.



     “Swingline Loan” shall have the meaning set forth in Section 2.4(a).



     “Swingline Note” shall mean the promissory note of the Borrower in favor of the
Swingline Lender evidencing the Swingline Loans provided pursuant to Section 2.4(d), as such
promissory note may be amended, modified, supplemented, extended, renewed or replaced from time to
time.



     “Syndication Agent” shall have the meaning set forth in the first paragraph of this
Credit Agreement and any successors in such capacity.



     “Synthetic Lease Obligation” shall mean the monetary obligation of a Person under (a)
a so-called synthetic, off-balance sheet or tax retention lease, or (b) an agreement for the use or
possession of property creating obligations that do not appear on the balance sheet of such Person
but which, upon the insolvency or bankruptcy of such Person, would be characterized as the
indebtedness of such Person (without regard to accounting treatment).



     “Tax Exempt Certificate” shall have the meaning set forth in Section 2.18.



     “Taxes” shall have the meaning set forth in Section 2.18.



     “Term Loan Lender” shall mean, as of any date of determination, any Lender that holds
a portion of the outstanding Tranche B Term Loan on such date.



     “Ticking Fee” shall have the meaning set forth in Section 2.6(e).



     “Ticking Fee Payment Date” shall have the meaning set forth in Section 2.6(e).



     “Trademark License” shall mean any agreement, whether written or oral, providing for
the grant by or to a Person of any right to use any Trademark, including, without limitation, any
thereof referred to in Schedule 3.16 to this Credit Agreement.



     “Trademarks” shall mean all trademarks, trade names, corporate names, company names,
business names, fictitious business names, service marks, elements of package or trade dress of
goods or services, logos and other source or business identifiers, together with the goodwill
associated therewith, now existing or hereafter adopted or acquired, all registrations and
recordings thereof, and all applications in connection therewith, whether in the United States
Patent and Trademark Office or in any similar office or agency of the United States, any State
thereof or any other country or any political subdivision thereof, including, without limitation,




25










 




any thereof referred to in Schedule 3.16 to this Credit Agreement, and (ii) all renewals
thereof including, without limitation, any thereof referred to in Schedule 3.16.




     “Tranche” shall mean the collective reference to (a) LIBOR Rate Loans whose Interest
Periods begin and end on the same day and (b) Alternate Base Rate Loans made on the same day. A
Tranche with respect to LIBOR Rate Loans may sometimes be referred to as a “Eurodollar Tranche”.



     “Tranche B Term Loan” shall have the meaning set forth in Section 2.2(a).



     “Tranche B Term Loan Commitment” shall mean, with respect to each Term Loan Lender,
the commitment of such Term Loan Lender to make its portion of the Tranche B Term Loan in a
principal amount equal to such Term Loan Lender’s Tranche B Term Loan Commitment Percentage of the
Tranche B Term Loan Committed Amount (and for purposes of making determinations of Required Lenders
hereunder after the Closing Date, the principal amount outstanding on the Tranche B Term Loan).



     “Tranche B Term Loan Commitment Percentage” shall mean, for any Term Loan Lender, the
percentage identified as its Tranche B Term Loan Commitment Percentage on Schedule 2.1(a),
as such percentage may be modified in connection with any assignment made in accordance with the
provisions of Section 9.6.



     “Tranche B Term Loan Committed Amount” shall have the meaning set forth in
Section 2.2(a).



     “Tranche B Term Loan Funding Date” shall mean the date upon which all the conditions
precedent to the funding of the Tranche B Term Loans (including, without limitation, the
requirements set forth in Sections 2.2, 4.1 and 4.3) shall have been satisfied; provided,
that the Tranche B Term Loan Funding Date shall occur no later than sixty (60) days after the
Closing Date.



     “Tranche B Term Loan Maturity Date” shall mean the date that is six (6) years from the
Closing Date.



     “Tranche B Term Note” or “Tranche B Term Notes” shall mean the promissory
notes of the Borrower in favor of each of the Term Loan Lenders evidencing the portion of the
Tranche B Term Loan provided pursuant to Section 2.2(d), individually or collectively, as
appropriate, as such promissory notes may be amended, modified, restated, supplemented, extended,
renewed or replaced from time to time.



     “Transfer Effective Date” shall have the meaning set forth in each Commitment Transfer
Supplement.



     “Type” shall mean, as to any Loan, its nature as an Alternate Base Rate Loan or LIBOR
Rate Loan, as the case may be.



26









 





     “Voting Stock” shall mean, with respect to any Person, Capital Stock issued by such
Person the holders of which are ordinarily, in the absence of contingencies, entitled to vote for
the election of directors (or persons performing similar functions) of such Person, even though the
right so to vote may be or have been suspended by the happening of such a contingency.



     “Wachovia” shall mean Wachovia Bank, National Association, a national banking
association.



     “Working Capital” shall mean, as of any date of determination, for the Borrower and
its Subsidiaries on a consolidated basis, the remainder of (a) accounts receivable, inventory and
prepaid expenses minus (b) accounts payable and other accrued expenses including compensation,
benefits and taxes.



     Section 1.2 Other Definitional Provisions.




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




     (b) The words “hereof”, “herein” and “hereunder” and words of similar import when used in this
Credit Agreement shall refer to this Credit Agreement as a whole and not to any particular
provision of this Credit Agreement, and Section, subsection, Schedule and Exhibit references are to
this Credit Agreement unless otherwise specified.




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



     Section 1.3 Accounting Terms.



     Unless otherwise specified herein, all accounting terms used herein shall be interpreted, all
accounting determinations hereunder shall be made, and all financial statements required to be
delivered hereunder shall be prepared in accordance with GAAP applied on a basis consistent with
the most recent audited Consolidated financial statements of the Borrower delivered to the
Administrative Agent; provided that, if the Borrower notifies the Administrative Agent that
it wishes to amend any covenant in Section 5.9 to eliminate the effect of any change in GAAP on the
operation of such covenant (or if the Administrative Agent notifies the Borrower that the Required
Lenders wish to amend Section 5.9 for such purpose), then the Borrower’s compliance with such
covenant shall be determined on the basis of GAAP in effect immediately before the relevant change
in GAAP became effective, until either such notice is withdrawn or such covenant is amended in a
manner satisfactory to the Borrower and the Required Lenders.



     The Borrower shall deliver to the Administrative Agent at the same time as the delivery of any
annual or quarterly financial statements given in accordance with the provisions of Section 5.1,
(i) a description in reasonable detail of any material change in the application of accounting
principles employed in the preparation of such financial statements from those



27









 




applied in the most
recently preceding quarterly or annual financial statements as to which no objection shall have
been made in accordance with the provisions above and (ii) a reasonable estimate of the effect on
the financial statements on account of such changes in application.




     For purposes of computing the financial covenants set forth in Section 5.9 for any applicable
test period, any Permitted Acquisition or permitted sale of assets (including a stock sale) shall
have been deemed to have taken place as of the first day of such applicable test period.



     Section 1.4 Time References.



     Unless otherwise specified, all references herein to times of day shall be references to
Eastern time (daylight or standard, as applicable).



ARTICLE II




THE LOANS; AMOUNT AND TERMS



     Section 2.1 Revolving Loans.




     (a) Revolving Commitment. During the Commitment Period, subject to the terms and
conditions hereof, each Revolving Lender severally agrees to make revolving credit loans
(“Revolving Loans”) to the Borrower from time to time for the purposes hereinafter set
forth; provided, however, that (i) with regard to each Revolving Lender
individually, the sum of such Revolving Lender’s share of outstanding Revolving Loans plus
such Revolving Lender’s Revolving Commitment Percentage of outstanding Swingline Loans plus
such Revolving Lender’s Revolving Commitment Percentage of outstanding LOC Obligations (after
giving effect to the concurrent reduction, if any, in outstanding Swingline Loans and/or
outstanding LOC Obligations to be effected by application of the proceeds of Revolving Loans) shall
not exceed such Revolving Lender’s Revolving Commitment Percentage of the Revolving Committed
Amount and (ii) with regard to the Revolving Lenders collectively, the sum of the aggregate amount
of outstanding Revolving Loans plus outstanding Swingline Loans plus outstanding
LOC Obligations (after giving effect to the concurrent reduction, if any, in outstanding Swingline
Loans and/or outstanding LOC Obligations to be effected by application of the proceeds of Revolving
Loans) shall not exceed the Revolving Committed Amount then in effect. For purposes hereof, the
aggregate amount available hereunder shall be ONE HUNDRED TWENTY-FIVE MILLION DOLLARS
($125,000,000) (as such aggregate maximum amount may be reduced from time to time as provided in
Section 2.7, the “Revolving Committed Amount”). Revolving Loans may consist of Alternate
Base Rate Loans or LIBOR Rate Loans, or a combination thereof, as the Borrower may request, and may
be repaid and reborrowed in accordance with the provisions hereof; provided,
however, the Revolving Loans made on the Closing Date and on the two Business Days
immediately following the Closing Date shall bear interest at the Alternate



28









 






Base Rate. LIBOR Rate
Loans shall be made by each Revolving Lender at its LIBOR Lending Office and Alternate Base Rate
Loans at its Domestic Lending Office.




     (b) Revolving Loan Borrowings.




     (i) Notice of Borrowing. The Borrower may request a Revolving Loan borrowing
by delivering a written Notice of Borrowing (or telephone notice promptly confirmed in
writing by delivery of a written Notice of Borrowing, which delivery may be by fax) to the
Administrative Agent not later than 11:00 A.M. on the date of the requested borrowing in the
case of Alternate Base Rate Loans, and on the third Business Day prior to the date of the
requested borrowing in the case of LIBOR Rate Loans. Each such Notice of Borrowing shall be
irrevocable and shall specify (A) that a Revolving Loan is requested, (B) the date of the
requested borrowing (which shall be a Business Day), (C) the aggregate principal amount to
be borrowed and (D) whether the borrowing shall be comprised of Alternate Base Rate Loans,
LIBOR Rate Loans or a combination thereof, and if LIBOR Rate Loans are requested, the
Interest Period(s) therefor. If the Borrower shall fail to specify in any such Notice of
Borrowing (1) an applicable Interest
Period in the case of a LIBOR Rate Loan, then such notice shall be deemed to be a
request for an Interest Period of one month, or (2) the type of Revolving Loan requested,
then such notice shall be deemed to be a request for an Alternate Base Rate Loan hereunder.
The Administrative Agent shall give notice to each Revolving Lender promptly upon receipt of
each Notice of Borrowing, the contents thereof and each such Revolving Lender’s share
thereof.




     (ii) Minimum Amounts. Each Revolving Loan that is made as an Alternate Base
Rate Loan shall be in a minimum aggregate amount of $500,000 and integral multiples of
$100,000 in excess thereof (or the remaining amount of the Revolving Committed Amount, if
less) other than with respect to payments of reimbursement obligations in accordance with
Section 2.3(d) and with respect to repayments of Swingline Loans in accordance with Section
2.4(b)(ii), each of which may be in the amount of the reimbursement obligation being paid or
of Swingline Loan being repaid. Each Revolving Loan that is made as a LIBOR Rate Loan shall
be in a minimum aggregate amount of $5,000,000 and integral multiples of $1,000,000 in
excess thereof (or the remaining amount of the Revolving Committed Amount, if less).




     (iii) Advances. Each Revolving Lender will make its Revolving Commitment
Percentage of each Revolving Loan borrowing available to the Administrative Agent for the
account of the Borrower at the office of the Administrative Agent specified in Section 9.2,
or at such other office as the Administrative Agent may designate in writing, upon
reasonable advance notice by 1:00 P.M. on the date specified in the applicable Notice of
Borrowing, in Dollars and in funds immediately available to the Administrative Agent. Such
borrowing will then be made available to the Borrower by the Administrative Agent by
crediting the account of the Borrower on the books of such office with



29









 






the aggregate of the
amounts made available to the Administrative Agent by the Revolving Lenders and in like
funds as received by the Administrative Agent.




     (c) Repayment. The principal amount of all Revolving Loans shall be due and payable
in full on the Revolving Commitment Termination Date, unless accelerated sooner pursuant to Section
7.2.




     (d) Interest. Subject to the provisions of Section 2.9(b), Revolving Loans shall bear
interest as follows:




     (i) Alternate Base Rate Loans. During such periods as Revolving Loans shall be
comprised of Alternate Base Rate Loans, each such Alternate Base Rate Loan shall bear
interest at a per annum rate equal to the sum of the Alternate Base Rate plus the
Applicable Percentage; and




     (ii) LIBOR Rate Loans. During such periods as Revolving Loans shall be
comprised of LIBOR Rate Loans, each such LIBOR Rate Loan shall bear interest at a per annum
rate equal to the sum of the LIBOR Rate plus the Applicable Percentage.



     Interest on Revolving Loans shall be payable in arrears on each Interest Payment Date.




     (e) Revolving Notes. The Borrower’s obligation to pay each Revolving Lender’s
Revolving Loans shall be evidenced, upon such Revolving Lender’s request, by a Revolving Note made
payable to such Lender in substantially the form of Schedule 2.1(e).



     Section 2.2 Tranche B Term Loan.




     (a) Tranche B Term Loan. Subject to the terms and conditions hereof and in reliance
upon the representations and warranties set forth herein, each Term Loan Lender severally agrees to
make available to the Borrower on the Tranche B Term Loan Funding Date such Term Loan Lender’s
Tranche B Term Loan Commitment Percentage of a term loan in Dollars (the “Tranche B Term
Loan”) in the aggregate principal amount of TWO HUNDRED MILLION DOLLARS ($200,000,000) (the
“Tranche B Term Loan Committed Amount”) for the purposes hereinafter set forth. The
Tranche B Term Loan may consist of Alternate Base Rate Loans or LIBOR Rate Loans, or a combination
thereof, as the Borrower may request. LIBOR Rate Loans shall be made by each Term Loan Lender at
its LIBOR Lending Office and Alternate Base Rate Loans at its Domestic Lending Office. Amounts
repaid or prepaid on the Tranche B Term Loan may not be reborrowed.




     (b) Repayment of Tranche B Term Loan. The principal amount of the Tranche B Term Loan
shall be repaid in twenty-four (24) consecutive quarterly installments (as reduced pursuant to
Section 2.8) as follows:



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	Principal Amortization	 	Tranche B Term Loan
	Payment Date	 	Principal Amortization Payment
	November 1, 2004
	 	$500,000
	February 1, 2005
	 	$500,000
	May 1, 2005
	 	$500,000
	August 1, 2005
	 	$500,000
	November 1, 2005
	 	$500,000
	February 1, 2006
	 	$500,000
	May 1, 2006
	 	$500,000
	August 1, 2006
	 	$500,000
	November 1, 2006
	 	$500,000
	February 1, 2007
	 	$500,000
	May 1, 2007
	 	$500,000
	August 1, 2007
	 	$500,000
	November 1, 2007
	 	$500,000
	February 1, 2008
	 	$500,000
	May 1, 2008
	 	$500,000
	August 1, 2008
	 	$500,000
	November 1, 2008
	 	$500,000
	February 1, 2009
	 	$500,000
	May 1, 2009
	 	$500,000
	August 1, 2009
	 	$500,000
	November 1, 2009
	 	$500,000
	February 1, 2010
	 	$500,000
	May 1, 2010
	 	$500,000
	Tranche B Term Loan
Maturity Date
	 	$188,500,000 or the remaining

principal amount of the Tranche B

Term Loan






31









 







     (c) Interest on the Tranche B Term Loan. Subject to the provisions of Section 2.9,
the Tranche B Term Loan shall bear interest as follows:




     (i) Alternate Base Rate Loans. During such periods as the Tranche B Term Loan
shall be comprised of Alternate Base Rate Loans, each such Alternate Base Rate Loan shall
bear interest at a per annum rate equal to the sum of the Alternate Base Rate plus
the Applicable Percentage; and




     (ii) LIBOR Rate Loans. During such periods as the Tranche B Term Loan shall be
comprised of LIBOR Rate Loans, each such LIBOR Rate Loan shall bear interest at a per annum
rate equal to the sum of the LIBOR Rate plus the Applicable Percentage.




     Interest on the Tranche B Term Loan shall be payable in arrears on each Interest
Payment Date.




     (d) Tranche B Term Notes. The Borrower’s obligation to pay each Term Loan Lender’s
Tranche B Term Loan shall be evidenced, upon such Term Loan Lender’s request, by a Tranche B Term
Note made payable to such Lender in substantially the form of Schedule 2.2(d).



     Section 2.3 Letter of Credit Subfacility.




     (a) Issuance. Subject to the terms and conditions hereof and of the LOC Documents, if
any, and any other terms and conditions which the Issuing Lender may reasonably require, during the
Commitment Period the Issuing Lender shall issue, and the Revolving Lenders shall participate in,
standby Letters of Credit for the account of the Borrower from time to time upon request in a form
acceptable to the Issuing Lender; provided, however, that (i) the aggregate
amount of LOC Obligations shall not at any time exceed TWENTY MILLION DOLLARS ($20,000,000)
(the “LOC Committed Amount”), (ii) the sum of the aggregate amount of outstanding Revolving
Loans plus outstanding Swingline Loans plus outstanding LOC Obligations shall not
at any time exceed the Revolving Committed Amount then in effect, (iii) all Letters of Credit shall
be denominated in U.S. Dollars and (iv) Letters of Credit shall be issued for any lawful corporate
purposes, including in connection with workers’ compensation and other insurance programs. Except
as otherwise expressly agreed upon by all the Revolving Lenders, no Letter of Credit shall have an
original expiry date more than twelve (12) months from the date of issuance; provided,
however, so long as no Default or Event of Default has occurred and is continuing and
subject to the other terms and conditions to the issuance of Letters of Credit hereunder, the
expiry dates of Letters of Credit (other than the Existing Letters of Credit) may be extended
annually or periodically from time to time on the request of the Borrower or by operation of the
terms of the applicable Letter of Credit to a date not more than twelve (12) months from the date
of extension; provided, further, that no Letter of Credit, as originally issued or
as extended, shall have an expiry date extending beyond the date that is thirty (30) days prior to
the Revolving Commitment Termination Date. Each Letter of Credit shall comply with the related LOC



32









 






Documents. The issuance and expiry date of each Letter of Credit shall be a Business Day. Any
Letters of Credit issued hereunder shall be in a minimum original face amount of $100,000. The
Borrower’s reimbursement obligations in respect of each Existing Letter of Credit, and each
Lender’s participation obligations in connection therewith, shall be governed by the terms of this
Credit Agreement. Notwithstanding any term in this Credit Agreement or in the LOC Documents to the
contrary, the Existing Letters of Credit shall not be renewed or extended beyond the applicable
expiration dates in effect on the Closing Date.




     (b) Notice and Reports. The request for the issuance of a Letter of Credit shall be
submitted to the Issuing Lender at least five (5) Business Days prior to the requested date of
issuance. The Issuing Lender will promptly upon request provide to the Administrative Agent for
dissemination to the Revolving Lenders a detailed report specifying the Letters of Credit which are
then issued and outstanding and any activity with respect thereto which may have occurred since the
date of any prior report, and including therein, among other things, the account party, the
beneficiary, the face amount, expiry date as well as any payments or expirations which may have
occurred. The Issuing Lender will further provide to the Administrative Agent promptly upon
request copies of the Letters of Credit. The Issuing Lender will provide to the Administrative
Agent promptly upon request a summary report of the nature and extent of LOC Obligations then
outstanding.




     (c) Participations. Each Revolving Lender, (i) on the Closing Date with respect to
each Existing Letter of Credit and (ii) upon issuance of any other Letter of Credit (or upon a
Person becoming a Revolving Lender hereunder), shall be deemed to have purchased without recourse a
risk participation from the Issuing Lender in such Letter of Credit and the obligations arising
thereunder and any collateral relating thereto, in each case in an amount equal to its Revolving
Commitment Percentage of the obligations under such Letter of Credit and shall absolutely,
unconditionally and irrevocably assume, as primary obligor and not as surety, and be obligated to
pay to the Issuing Lender therefor and discharge when due, its Revolving Commitment Percentage of
the obligations arising under such Letter of Credit. Without limiting the scope and nature of each
Revolving Lender’s participation in any Letter of Credit, to the extent that the Issuing Lender has
not been reimbursed as required hereunder or under any LOC
Document, each such Revolving Lender shall pay to the Issuing Lender its Revolving Commitment
Percentage of such unreimbursed drawing in same day funds on the day of notification by the Issuing
Lender of an unreimbursed drawing pursuant to and in accordance with the provisions of subsection
(d) hereof. The obligation of each Revolving Lender to so reimburse the Issuing Lender shall be
absolute and unconditional and shall not be affected by the occurrence of a Default, an Event of
Default or any other occurrence or event. Any such reimbursement shall not relieve or otherwise
impair the obligation of the Borrower to reimburse the Issuing Lender under any Letter of Credit,
together with interest as hereinafter provided.




     (d) Reimbursement. In the event of any drawing under any Letter of Credit, the
Issuing Lender will promptly notify the Borrower and the Administrative Agent. The



33









 






Borrower shall
reimburse the Issuing Lender on the day of drawing under any Letter of Credit (either with the
proceeds of a Revolving Loan obtained hereunder or otherwise) in same day funds as provided herein
or in the LOC Documents. If the Borrower shall fail to reimburse the Issuing Lender as provided
herein, the unreimbursed amount of such drawing shall bear interest at a per annum rate equal to
the ABR Default Rate. Unless the Borrower shall immediately notify the Issuing Lender and the
Administrative Agent of its intent to otherwise reimburse the Issuing Lender, the Borrower
shall be deemed to have requested a Mandatory LOC Borrowing in the amount of the drawing as
provided in subsection (e) hereof, the proceeds of which will be used to satisfy the reimbursement
obligations. The Borrower’s reimbursement obligations hereunder shall be absolute and
unconditional under all circumstances irrespective of any rights of set-off, counterclaim or
defense to payment the Borrower may claim or have against the Issuing Lender, the Administrative
Agent, the Lenders, the beneficiary of the Letter of Credit drawn upon or any other Person,
including without limitation any defense based on any failure of the Borrower to receive
consideration or the legality, validity, regularity or unenforceability of the Letter of Credit.
The Issuing Lender will promptly notify the other Revolving Lenders of the amount of any
unreimbursed drawing and each Revolving Lender shall promptly pay to the Administrative Agent for
the account of the Issuing Lender, in Dollars and in immediately available funds, the amount of
such Revolving Lender’s Revolving Commitment Percentage of such unreimbursed drawing. Such payment
shall be made on the day such notice is received by such Revolving Lender from the Issuing Lender
if such notice is received at or before 2:00 P.M., otherwise such payment shall be made at or
before 12:00 Noon on the Business Day next succeeding the day such notice is received. If such
Revolving Lender does not pay such amount to the Issuing Lender in full upon such request, such
Revolving Lender shall, on demand, pay to the Administrative Agent for the account of the Issuing
Lender interest on the unpaid amount during the period from the date of such drawing until such
Revolving Lender pays such amount to the Issuing Lender in full at a rate per annum equal to, if
paid within two (2) Business Days of the date of drawing, the Federal Funds Effective Rate and
thereafter at a rate equal to the Alternate Base Rate. Each Revolving Lender’s obligation to make
such payment to the Issuing Lender, and the right of the Issuing Lender to receive the same, shall
be absolute and unconditional, shall not be affected by any circumstance whatsoever and without
regard to the termination of this Credit Agreement or the Commitments hereunder, the existence of a
Default or Event of Default or the acceleration of the Credit Party Obligations hereunder and shall
be made without any offset, abatement, withholding or reduction whatsoever.




     (e) Repayment with Revolving Loans. On any day on which the Borrower shall have
requested, or been deemed to have requested, a Revolving Loan to reimburse a drawing under a
Letter of Credit, the Administrative Agent shall give notice to the Revolving Lenders that a
Revolving Loan has been requested or deemed requested in connection with a drawing under a Letter
of Credit, in which case a Revolving Loan borrowing comprised entirely of Alternate Base Rate Loans
(each such borrowing, a “Mandatory LOC Borrowing”) shall be immediately made (without
giving effect to any termination of the Commitments pursuant to Section 7.2) pro
rata based on each Revolving Lender’s respective Revolving Commitment Percentage
(determined before



34









 






giving effect to any termination of the Commitments pursuant to Section 7.2) and
the proceeds thereof shall be paid directly to the Issuing Lender for application to the respective
LOC Obligations. Each Revolving Lender hereby irrevocably agrees to make such Revolving Loans on
the day such notice is received by the Revolving Lenders from the Administrative Agent if such
notice is received at or before 2:00 P.M., otherwise such payment shall be made at or before 12:00
Noon on the Business Day next succeeding the day such notice is received, in each case
notwithstanding (i) the amount of Mandatory LOC Borrowing may not comply with the minimum
amount for borrowings of Revolving Loans otherwise required hereunder, (ii) whether any conditions
specified in Section 4.2 are then satisfied, (iii) whether a Default or an Event of Default then
exists, (iv) failure for any such request or deemed request for Revolving Loan to be made by the
time otherwise required in Section 2.1(b), (v) the date of such Mandatory LOC Borrowing, or (vi)
any reduction in the Revolving Committed Amount after any such Letter of Credit may have been drawn
upon. In the event that any Mandatory LOC Borrowing cannot for any reason be made on the date
otherwise required above (including, without limitation, as a result of the commencement of a
proceeding under the Bankruptcy Code with respect to the Borrower), then each such Revolving Lender
hereby agrees that it shall forthwith fund (as of the date the Mandatory LOC Borrowing would
otherwise have occurred, but adjusted for any payments received from the Borrower on or after such
date and prior to such purchase) its Participation Interests in the outstanding LOC Obligations;
provided, further, that in the event any Revolving Lender shall fail to fund its
Participation Interest on the day the Mandatory LOC Borrowing would otherwise have occurred, then
the amount of such Revolving Lender’s unfunded Participation Interest therein shall bear interest
payable by such Revolving Lender to the Issuing Lender upon demand, at the rate equal to, if paid
within two (2) Business Days of such date, the Federal Funds Effective Rate, and thereafter at a
rate equal to the Alternate Base Rate.




     (f) Modification, Extension. The issuance of any supplement, modification, amendment,
renewal, or extension to any Letter of Credit shall, for purposes hereof, be treated in all
respects the same as the issuance of a new Letter of Credit hereunder.




     (g) Uniform Customs and Practices. The Issuing Lender shall have the Letters of
Credit be subject to The Uniform Customs and Practice for Documentary Credits, as published as of
the date of issue by the International Chamber of Commerce (the “UCP”), in which case the
UCP may be incorporated therein and deemed in all respects to be a part thereof.




     (h) Designation of Subsidiaries as Account Parties. Notwithstanding anything to the
contrary set forth in this Agreement, including without limitation Section 2.3(a), a Letter of
Credit issued hereunder may contain a statement to the effect that such Letter of Credit is
issued for the account of a Subsidiary of the Borrower; provided that, notwithstanding such
statement, the Borrower shall be the actual account party for all purposes of this Agreement for
such Letter
of Credit and such statement shall not affect the Borrower’s reimbursement obligations
hereunder with respect to such Letter of Credit.



35









 






     (i) Repayment in Respect of Participation Interests. At any time after the Issuing
Lender has made a payment under any Letter of Credit and has received from any Lender such Lender’s
funded Participation Interest in such LOC Obligations in accordance with Section 2.3(e), if the
Administrative Agent receives for the account of the Issuing Lender from the Borrower any payment
in respect of such LOC Obligations, the Administrative Agent will distribute to such Lender its pro
rata share of such payment made by the Borrower based on such Lender’s Revolving Commitment
Percentage thereof (appropriately adjusted, in the case of interest payments, to reflect the period
of time during which such Lender’s payment on its Participation Interest was outstanding) in the
same funds as those received by the Administrative Agent.



     Section 2.4 Swingline Loan Subfacility.




     (a) Swingline Commitment. During the Commitment Period, subject to the terms and
conditions hereof, the Swingline Lender, in its individual capacity, agrees to make certain
revolving credit loans to the Borrower (each a “Swingline Loan” and, collectively, the
“Swingline Loans”) for the purposes hereinafter set forth; provided,
however, (i) the aggregate amount of Swingline Loans outstanding at any time shall not
exceed TEN MILLION DOLLARS ($10,000,000) (the “Swingline Committed Amount”), and (ii) the
sum of the outstanding Revolving Loans plus outstanding Swingline Loans plus
outstanding LOC Obligations shall not exceed the Revolving Committed Amount. Swingline Loans
hereunder may be repaid and reborrowed in accordance with the provisions hereof.




     (b) Swingline Loan Borrowings.




     (i) Notice of Borrowing and Disbursement. The Swingline Lender will make
Swingline Loans available to the Borrower on any Business Day upon delivery of a Notice of
Borrowing by the Borrower to the Administrative Agent not later than 2:00 P.M. on such
Business Day. Swingline Loan borrowings hereunder shall be made in minimum amounts of
$100,000 and in integral amounts of $100,000 in excess thereof.




     (ii) Repayment of Swingline Loans. Each Swingline Loan borrowing shall be due
and payable on the Revolving Commitment Termination Date. The Swingline Lender may, at any
time, in its sole discretion, by written notice to the Borrower and the Administrative
Agent, demand repayment of its Swingline Loans by way of a Revolving Loan borrowing, in
which case the Borrower shall be deemed to have requested a Revolving Loan borrowing
comprised entirely of Alternate Base Rate Loans in the amount of such Swingline Loans;
provided, however, that, in the following circumstances, any such demand
shall also be deemed to have been given one Business Day prior to each of (A) the Revolving
Commitment Termination Date, (B) the occurrence of any Bankruptcy Event, (C) upon
acceleration of the Credit Party Obligations hereunder, whether on account of a Bankruptcy
Event or any other Event of Default, and (D) the exercise of remedies in accordance with the
provisions of Section 7.2 hereof (each such



36









 






Revolving Loan borrowing made on account of any
such deemed
request therefor as provided herein being hereinafter referred to as “Mandatory
Swingline Borrowing”). Each Revolving Lender hereby irrevocably agrees to make such
Revolving Loans promptly upon any such request or deemed request on account of each
Mandatory Swingline Borrowing in the amount and in the manner specified in the preceding
sentence and on the same such date notwithstanding (1) the amount of Mandatory
Swingline Borrowing may not comply with the minimum amount for borrowings of Revolving Loans
otherwise required hereunder, (2) whether any conditions specified in Section 4.2 are then
satisfied, (3) whether a Default or an Event of Default then exists, (4) failure of any such
request or deemed request for Revolving Loans to be made by the time otherwise required in
Section 2.1(b)(i), (5) the date of such Mandatory Swingline Borrowing, or (6) any reduction
in the Revolving Committed Amount or termination of the Revolving Commitments immediately
prior to such Mandatory Swingline Borrowing or contemporaneously therewith. In the event
that any Mandatory Swingline Borrowing cannot for any reason be made on the date otherwise
required above (including, without limitation, as a result of the commencement of a
proceeding under the Bankruptcy Code), then each Revolving Lender hereby agrees that it
shall forthwith purchase (as of the date the Mandatory Swingline Borrowing would otherwise
have occurred, but adjusted for any payments received from the Borrower on or after such
date and prior to such purchase) from the Swingline Lender such participations in the
outstanding Swingline Loans as shall be necessary to cause each such Revolving Lender to
share in such Swingline Loans ratably based upon its respective Revolving Commitment
Percentage (determined before giving effect to any termination of the Commitments pursuant
to Section 7.2); provided that (x) all interest payable on the Swingline Loans shall
be for the account of the Swingline Lender until the date as of which the respective
participation is purchased, and (y) at the time any purchase of participations pursuant to
this sentence is actually made, the purchasing Revolving Lender shall be required to pay to
the Swingline Lender interest on the principal amount of such participation purchased for
each day from and including the day upon which the Mandatory Swingline Borrowing would
otherwise have occurred to but excluding the date of payment for such participation, at the
rate equal to, if paid within two (2) Business Days of the date of the Mandatory Swingline
Borrowing, the Federal Funds Effective Rate, and thereafter at a rate equal to the Alternate
Base Rate.




     (c) Interest on Swingline Loans. Subject to the provisions of Section 2.9(b),
Swingline Loans shall bear interest at a per annum rate equal to the Alternate Base Rate
plus the Applicable Percentage for Revolving Loans that are Alternate Base Rate Loans.
Interest on Swingline Loans shall be payable in arrears on each Interest Payment Date.




     (d) Swingline Note. The Swingline Loans shall be evidenced by a duly executed
promissory note of the Borrower to the Swingline Lender in the original amount of the
Swingline Committed Amount and substantially in the form of Schedule 2.4(d).



37









 






     (e) Repayments of Participations. At any time after any Lender has purchased and
funded a risk participation in a Swingline Loan in accordance with clause (b) above, if the
Swingline Lender receives any payment on account of such Swingline Loan, the Swingline Lender will
distribute to such Lender its pro rata share (based on its Revolving Commitment Percentage) of such
payment (appropriately adjusted, in the case of interest payments, to reflect
the period of time during which such Lender’s risk participation was funded) in the same funds
as those received by the Swingline Lender



     Section 2.5 Incremental Facility.



     Subject to the terms and conditions set forth herein, the Borrower shall have the right, at
any time and from time to time, to incur additional Indebtedness under this Credit Agreement in the
form of one or more additional term loan facilities (each an “Incremental Facility”) by an
aggregate amount of up to $100,000,000. The following terms and conditions shall apply to each
Incremental Facility: (a) the loans made under any such Incremental Facility (each an
“Additional Loan”) shall constitute Credit Party Obligations and will be secured and
guaranteed with the other Loans on a pari passu basis, (b) the interest rate margin applicable to
such Incremental Facility shall be the Applicable Percentage for the Tranche B Term Loan (c) the
weighted average life and final maturity applicable to any such Incremental Facility shall be
determined at the time such Incremental Facility is made available (provided that (i) such
Incremental Facility shall mature no earlier than the Tranche B Term Loan Maturity Date and (ii) no
greater than 5% of the Incremental Facility shall amortize prior to the date that is one year
before the Tranche B Term Loan Maturity Date), (d) any such Incremental Facility shall be entitled
to the same voting rights as the existing Loans and shall be entitled to receive proceeds of
prepayments on the same basis as comparable Loans, (e) any such Incremental Facility shall be
obtained from existing Lenders or from other banks, financial institutions or investment funds, in
each case in accordance with the terms set forth below, (f) any such Incremental Facility shall be
in a minimum principal amount of $25,000,000 and integral multiples of $1,000,000 in excess
thereof, (g) the proceeds of any Additional Loan will be used to finance capital expenditures and
working capital and other general corporate purposes, including Permitted Acquisitions, (h) the
conditions to Extensions of Credit in Section 4.2 shall have been satisfied and (i) the
Administrative Agent shall have received from the Borrower updated financial projections and an
officer’s certificate, in each case in form and substance satisfactory to the Administrative Agent,
demonstrating that, after giving effect to any such Incremental Facility, the Borrower will be in
compliance with the financial covenants set forth in Section 5.9. Participation in any such
Incremental Facility hereunder shall be offered first to each of the existing Lenders, but each
such Lender shall have no obligation to provide all or any portion of such Incremental Facility.
If the amount of the Incremental Facility requested by the Borrower shall exceed the commitments
which the existing Lenders are willing to provide with respect to such Incremental Facility, then
the Borrower may invite other banks, financial institutions and investment funds reasonably
acceptable to the Administrative Agent to join this Credit Agreement as Lenders hereunder for the
portion of such Incremental Facility not taken by existing Lenders, provided that such
other banks, financial institutions and investment funds shall enter into such joinder agreements
to give effect thereto as the Administrative Agent and the Borrower may reasonably request. The
Administrative Agent is authorized to enter into, on



38









 




behalf of the Lenders, any amendment to this
Credit Agreement or any other Credit Document as may be necessary to incorporate the terms of any
new Incremental Facility therein.




     Section 2.6 Fees.




     (a) Commitment Fee. In consideration of the Revolving Commitment, the Borrower agrees
to pay to the Administrative Agent, for the ratable benefit of the Revolving Lenders, a
commitment fee (the “Commitment Fee”) in an amount equal to the Applicable Percentage
per annum on the average daily unused amount of the Revolving Committed Amount. For purposes of
computation of the Commitment Fee, LOC Obligations shall be considered usage but Swingline Loans
shall not be considered usage of the Revolving Committed Amount. The Commitment Fee shall be
payable quarterly in arrears on the last Business Day of each calendar quarter.




     (b) Letter of Credit Fees. In consideration of the LOC Commitments, the Borrower
agrees to pay to the Administrative Agent, for the ratable benefit of the Revolving Lenders, a fee
(the “Letter of Credit Fee”) equal to the Applicable Percentage for Revolving Loans that
are LIBOR Rate Loans per annum on the average daily maximum amount available to be drawn under each
Letter of Credit from the date of issuance to the date of expiration. In addition to such Letter
of Credit Fee, the Borrower agrees to pay to the Issuing Lender, for its own account without
sharing by the other Lenders, an additional fronting fee (the “Fronting Fee”) of one-eighth
of one percent (0.125%) per annum on the average daily maximum amount available to be drawn under
each such Letter of Credit issued by it. The Letter of Credit Fee and the Fronting Fee shall each
be payable quarterly in arrears on the last Business Day of each calendar quarter.




     (c) Issuing Lender Fees. In addition to the Letter of Credit Fees and Fronting Fees
payable pursuant to subsection (b) hereof, the Borrower shall pay to the Issuing Lender for its own
account without sharing by the other Lenders the reasonable and customary charges from time to time
of the Issuing Lender with respect to the amendment, transfer, administration, cancellation and
conversion of, and drawings under, such Letters of Credit (collectively, the “Issuing Lender
Fees”).




     (d) Administrative Fee. The Borrower agrees to pay to the Administrative Agent the
annual administrative fee as described in the Fee Letter.




     (e) Ticking Fee. The Borrower agrees to pay to the Administrative Agent, for the pro
rata benefit of the Term Loan Lenders, a ticking fee (the “Ticking Fee”) in an amount equal
to 0.375% per annum on the aggregate amount of the Tranche B Term Loan Committed Amount (computed
on the basis of the actual number of days elapsed over a 360-day year), which Ticking Fee shall
accrue from the Closing Date to, and shall be payable in full to the Administrative Agent on, the
earlier to occur of (i) the Tranche B Term Loan Funding Date and (ii) sixty (60) days after the
Closing Date, regardless of whether the Tranche B Term Loan Funding Date actually occurs (the
“Ticking Fee Payment Date”). With respect to any Person that becomes a Term Loan Lender in



39









 






connection with the primary syndication of the Tranche B Term Loan, such Term Loan Lender shall be
entitled to receive its pro rata share of the Ticking Fee for the period (A) from the Closing Date
to the Ticking Fee Payment Date if such Person executes and delivers to the Administrative Agent a
forward purchase confirmation, in form and substance satisfactory to the Administrative Agent,
within seven (7) Business Days following the Closing Date, or (B) from the date such Person
executes and delivers to the Administrative Agent a forward purchase confirmation (to the extent
delivered on or after the eighth (8th) Business Day following the Closing Date), in form
and substance satisfactory to the Administrative Agent, to the Ticking Fee Payment Date.



     Section 2.7 Commitment Reductions.




     (a) Voluntary Reductions. The Borrower shall have the right to terminate or
permanently reduce the unused portion of the Revolving Committed Amount at any time or from time to
time upon not less than five (5) Business Days’ prior written notice to the Administrative Agent
(which shall notify the Lenders thereof as soon as practicable) of each such termination or
reduction, which notice shall specify the effective date thereof and the amount of any such
reduction which shall be in a minimum amount of $5,000,000 or a whole multiple of $1,000,000 in
excess thereof and shall be irrevocable and effective upon receipt by the Administrative Agent;
provided that no such reduction or termination shall be permitted if after giving effect
thereto, and to any prepayments of the Revolving Loans made on the effective date thereof, the sum
of the then outstanding aggregate principal amount of the outstanding Revolving Loans plus
outstanding Swingline Loans plus outstanding LOC Obligations would exceed the Revolving
Committed Amount then in effect.




     (b) Maturity Date. The Revolving Commitment, the LOC Commitment and the Swingline
Commitment shall automatically terminate on the Revolving Commitment Termination Date, unless
terminated sooner pursuant to Section 7.2.



     Section 2.8 Prepayments.




     (a) Optional Prepayments. The Borrower shall have the right to prepay Loans in whole
or in part from time to time; provided, however, that each partial prepayment of
LIBOR Rate Loans shall be in a minimum principal amount of $5,000,000 and integral multiples of
$1,000,000 in excess thereof, and each partial prepayment of Base Rate Loans and/or a Swingline
Loan shall be in a minimum principal amount of $500,000 and integral multiples of $100,000 in
excess thereof. The Borrower shall give three (3) Business Days’ irrevocable notice in the case of
LIBOR Rate Loans and same-day irrevocable notice on any Business Day in the case of Alternate Base
Rate Loans, to the Administrative Agent (which shall notify the Lenders thereof as soon as
practicable). To the extent that the Borrower elects to prepay the Tranche B Term Loans, amounts
prepaid under this Section 2.8(a) shall be applied, first, to the immediately next-following four
scheduled installments of principal payable with respect to the Tranche B Term Loans, in the order
of their maturity, then to the remaining scheduled installments of principal payable with respect
to the Tranche B Term Loans, in the inverse order of maturity, each



40









 






such application to be made,
first to Alternate Base Rate Loans and then to LIBOR Rate Loans in direct order of Interest Period
maturities. All prepayments under this Section 2.8(a) shall be subject to Section 2.17, but
otherwise without premium or penalty. Interest on the principal amount prepaid shall be payable on
the next occurring Interest Payment Date that would have occurred had such loan not been prepaid
or, at the request of the Administrative Agent, interest on the principal amount prepaid shall be
payable on any date that a prepayment is made hereunder through the date of prepayment. Amounts
prepaid on the Revolving Loans and the Swingline Loans may be reborrowed in accordance with the
terms hereof. Amounts prepaid on the Tranche B Term Loan may not be reborrowed.




     (b) Mandatory Prepayments.




     (i) Revolving Committed Amount. If at any time after the Closing Date, the sum
of the aggregate principal amount of outstanding Revolving Loans plus outstanding
Swingline Loans plus outstanding LOC Obligations shall exceed the Revolving
Committed Amount then in effect, the Borrower immediately shall prepay the Revolving
Loans and Swingline Loans and (after all Revolving Loans and Swingline Loans have been
repaid) cash collateralize the LOC Obligations in an amount sufficient to eliminate such
excess.




     (ii) Excess Cash Flow. Within ninety (90) days after the end of each fiscal
year (commencing with the fiscal year ending October 29, 2005), the Borrower shall prepay
the Loans and/or cash collateralize the LOC Obligations in an amount equal to the sum of (A)
50% of the Excess Cash Flow earned during such prior fiscal year minus (B) the
aggregate amount of voluntary prepayments of the Term Loans made during such prior fiscal
year pursuant to Section 2.8(a); provided, that if the Leverage Ratio is less than
or equal to 2.50 to 1.0 as of the end of any fiscal year, the Borrower shall not be required
to prepay the Loans and/or cash collateralize the LOC Obligations on account of the Excess
Cash Flow earned during such prior fiscal year. Any payments of Excess Cash Flow shall be
applied as set forth in clause (vii) below.




     (iii) Asset Dispositions. Promptly following any Asset Disposition (or related
series of Asset Dispositions), the Borrower shall prepay the Loans and/or cash collateralize
the LOC Obligations in an aggregate amount equal to 100% of the Net Cash Proceeds derived
from such Asset Disposition (or related series of Asset Dispositions) (such prepayment to be
applied as set forth in clause (vii) below); provided, however, that such
Net Cash Proceeds shall not be required to be so applied (A) until the aggregate amount of
Asset Dispositions in any fiscal year is equal to or greater than $250,000 and (B) to the
extent the Borrower delivers to the Administrative Agent a certificate stating that it
intends to use such Net Cash Proceeds to acquire fixed or capital assets (including fixed or
capital assets acquired by reason of a Permitted Acquisition) which will become Collateral
in replacement of the disposed assets within 180 days of the receipt of such Net Cash
Proceeds, it being expressly agreed that any Net Cash Proceeds not



41









 






reinvested within such
180 day period shall be applied to repay the Loans and/or cash collateralize the LOC
Obligations immediately thereafter.




     (iv) Debt Issuances. Immediately upon receipt by any Credit Party or any of
its Subsidiaries of proceeds from any Debt Issuance, the Borrower shall prepay the Loans
and/or cash collateralize the LOC Obligations in an aggregate amount equal to 100% of the
Net Cash Proceeds of such Debt Issuance (such prepayment to be applied as set forth in
clause (vii) below); provided, however, that such Net Cash Proceeds shall
not be required to be so applied to the extent the Borrower delivers to the Administrative
Agent a certificate stating that it intends to use such Net Cash Proceeds to finance a
Permitted Acquisition within 90 days (provided that (A) if during such 90 day period any
Credit Party enters into a definitive purchase agreement or binding letter of intent with
respect to a Permitted Acquisition and (B) if the Leverage Ratio as of the most recent
fiscal quarter ended prior to such Debt Issuance is less than 3.0 to 1.0, then within 180
days) of the receipt of such Net Cash Proceeds, it being expressly agreed that any Net Cash
Proceeds not used in connection with a Permitted Acquisition within such period shall be
applied to repay the Loans and/or cash collateralize the LOC Obligations immediately
thereafter.




     (v) Issuances of Equity. Immediately upon receipt by any Credit Party or any
of its Subsidiaries of proceeds from any Equity Issuance, the Borrower shall prepay the
Loans and/or cash collateralize the LOC Obligations in an aggregate amount equal to 50% of
the Net Cash Proceeds of such Equity Issuance (such prepayment to be applied as set forth in
clause (vii) below); provided, however, that such Net Cash Proceeds shall
not be required to be so applied to the extent the Borrower delivers to the Administrative
Agent a certificate stating that it intends to use such Net Cash Proceeds to finance a
Permitted Acquisition within 90 days (provided that (A) if during such 90 day period any
Credit Party enters into a definitive purchase agreement or binding letter of intent with
respect to a Permitted Acquisition and (B) if the Leverage Ratio as of the most recent
fiscal quarter ended prior to such Equity Issuance is less than 3.0 to 1.0, then within 180
days) of the receipt of such Net Cash Proceeds, it being expressly agreed that any Net Cash
Proceeds not used in connection with a Permitted Acquisition within such period shall be
applied to repay the Loans and/or cash collateralize the LOC Obligations immediately
thereafter.




     (vi) Recovery Event. To the extent Net Cash Proceeds received in connection
with any Recovery Event are not used to acquire fixed or capital assets in replacement of
the assets subject to such Recovery Event within 180 days of the receipt of such Net Cash
Proceeds, immediately following the 180th day occurring after the receipt of such Net Cash
Proceeds, the Borrower shall prepay the Loans and/or cash collateralize the LOC Obligations
in an aggregate amount equal to one hundred percent (100%) of such Net Cash Proceeds not so
used (such prepayment to be applied as set forth in clause (vii) below); provided
that the Net Cash Proceeds from Recovery Events in any fiscal year shall not be required to
be



42









 






so applied until the aggregate amount of such Net Cash Proceeds is equal to or greater
than $250,000.




     (vii) Application of Mandatory Prepayments. All amounts required to be paid
pursuant to this Section 2.8(b) shall be applied as follows: (A) with respect to all amounts
prepaid pursuant to Section 2.8(b)(i), (1) first to the outstanding Swingline Loans,
(2) second to the outstanding Revolving Loans and (3) third, to a cash
collateral account in respect of LOC Obligations and (B) with respect to all amounts prepaid
pursuant to Sections 2.8(b)(ii) through (vi), (1) first to the Tranche B Term Loan
(pro rata to the remaining amortization payments set forth in Section 2.2(b)); (2)
second to outstanding Swingline Loans (without a corresponding permanent reduction
in the Revolving Committed Amount), (3) third to the outstanding Revolving Loans
(without a corresponding permanent reduction in the Revolving Committed Amount) and (4)
fourth to a cash collateral account in respect of LOC Obligations. Within the
parameters of the applications set forth above, prepayments shall be applied first to
Alternate Base Rate Loans and then to LIBOR Rate Loans in direct order of Interest Period
maturities. All prepayments under this Section 2.8(b) shall be subject to Section 2.17 and
be accompanied by interest on the principal amount prepaid through the date of prepayment.




     (c) Hedging Obligations Unaffected. Any repayment or prepayment made pursuant to this
Section 2.8 shall not affect the Borrower’s obligation to continue to make payments under any
Secured Hedging Agreement, which shall remain in full force and effect notwithstanding such
repayment or prepayment, subject to the terms of such Secured Hedging Agreement.



     Section 2.9 Default Rate and Payment Dates.




     (a) If all or a portion of the principal amount of any Loan which is a LIBOR Rate Loan shall
not be paid when due or continued as a LIBOR Rate Loan in accordance with the provisions of Section
2.10 (whether at the stated maturity, by acceleration or otherwise), such overdue principal amount
of such Loan shall be converted to an Alternate Base Rate Loan at the end of the Interest Period
applicable thereto.




     (b) (i) If all or a portion of the principal amount of any LIBOR Rate Loan shall not be paid
when due, such overdue amount shall bear interest at a rate per annum which is equal to the rate
that would otherwise be applicable thereto plus 2%, until the end of the Interest Period
applicable thereto, and thereafter at a rate per annum which is equal to the Alternate Base Rate
plus the sum of the Applicable Percentage then in effect for Alternate Base Rate Loans and
2% (the “ABR Default Rate”) or (ii) if any interest payable on the principal amount of any
Loan or any fee or other amount, including the principal amount of any Alternate Base Rate Loan,
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 equal to the ABR
Default Rate, in each case from the date of such non-payment until such amount is paid in full
(after as



43









 






well as before judgment). Furthermore, upon the occurrence, and during the continuance,
of any Event of Default hereunder, at the option of the Required Lenders, the principal of and, to
the extent permitted by law, interest on the Loans and any other amounts owing hereunder or under
the other Credit Documents shall bear interest, payable on demand, at a per annum rate which is (A)
in the case of principal, the rate that would otherwise be applicable thereto plus 2% or
(B) in the case of interest, fees or other amounts, the ABR Default Rate (after as well as before
judgment).




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



     Section 2.10 Conversion Options.




     (a) The Borrower may, in the case of the Revolving Loans and the Tranche B Term Loan, elect
from time to time to convert Alternate Base Rate Loans to LIBOR Rate Loans by giving the
Administrative Agent at least three Business Days’ prior irrevocable written notice of such
election. In addition, the Borrower may elect from time to time to convert LIBOR Rate Loans to
Alternate Base Rate Loans by giving the Administrative Agent irrevocable written notice by 11:00
A.M. one Business Date prior to the proposed date of conversion. A form of Notice of Conversion is
attached as Schedule 2.10. If the date upon which an Alternate Base Rate Loan is to be
converted to a LIBOR Rate Loan is not a Business Day, then such conversion shall be made on the
next succeeding Business Day. All or any part of outstanding Alternate Base Rate Loans may be
converted as provided herein; provided that (i) no Loan may be converted into a LIBOR Rate
Loan when any Default or Event of Default has occurred and is continuing and (ii) partial
conversions shall be in an aggregate principal amount of $5,000,000 or a whole multiple of
$1,000,000 in excess thereof. LIBOR Rate Loans may only be converted to alternate Base Rate Loans
on the last day of the applicable Interest Period. If the date upon which a LIBOR Rate Loan is to
be converted to an Alternate Base Rate Loan is not a Business
Day, then such conversion shall be made on the next succeeding Business Day and during the
period from such last day of an Interest Period to such succeeding Business Day such Loan shall
bear interest as if it were an Alternate Base Rate Loan.




     (b) Any LIBOR Rate Loans may be continued as such upon the expiration of an Interest Period
with respect thereto by compliance by the Borrower with the notice provisions contained in Section
2.10(a); provided, that no LIBOR Rate Loan may be continued as such when any Default or
Event of Default has occurred and is continuing, in which case such Loan shall be automatically
converted to an Alternate Base Rate Loan at the end of the applicable Interest Period with respect
thereto. If the Borrower shall fail to give timely notice of an election to continue a LIBOR Rate
Loan, or the continuation of LIBOR Rate Loans is not permitted hereunder, such LIBOR Rate Loans
shall be automatically converted to Alternate Base Rate Loans at the end of the applicable Interest
Period with respect thereto.



44









 





     Section 2.11 Computation of Interest and Fees.




     (a) Interest payable hereunder with respect to any Alternate Base Rate Loan based on the Prime
Rate shall be calculated on the basis of a year of 365 days (or 366 days, as applicable) for the
actual days elapsed. All fees, interest and all other amounts payable hereunder shall be
calculated on the basis of a 360 day year for the actual days elapsed. The Administrative Agent
shall as soon as practicable notify the Borrower and the Lenders of each determination of a LIBOR
Rate on the Business Day of the determination thereof. Any change in the interest rate on a Loan
resulting from a change in the Alternate Base Rate shall become effective as of the opening of
business on the day on which such change in the Alternate Base Rate shall become effective. The
Administrative Agent shall as soon as practicable notify the Borrower and the Lenders of the
effective date and the amount of each such change.




     (b) Each determination of an interest rate by the Administrative Agent pursuant to any
provision of this Credit 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,
deliver to the Borrower a statement showing the computations used by the Administrative Agent in
determining any interest rate.




     (c) It is the intent of the Lenders and the Credit Parties to conform to and contract in
strict compliance with applicable usury law from time to time in effect. All agreements between
the Lenders and the Credit Parties are hereby limited by the provisions of this paragraph which
shall override and control all such agreements, whether now existing or hereafter arising and
whether written or oral. In no way, nor in any event or contingency (including but not limited to
prepayment or acceleration of the maturity of any Obligation), shall the interest taken, reserved,
contracted for, charged, or received under this Credit Agreement, under the Notes or otherwise,
exceed the maximum nonusurious amount permissible under applicable law. If, from any possible
construction of any of the Credit Documents or any other document, interest would otherwise be
payable in excess of the maximum nonusurious amount, any such construction shall be subject to the
provisions of this paragraph and such interest shall be automatically reduced to the maximum
nonusurious amount permitted under applicable law, without the necessity of execution of any
amendment or new document. If any Lender shall ever receive anything of value which is
characterized as interest on the Loans under applicable law and which would,
apart from this provision, be in excess of the maximum nonusurious amount, an amount equal to
the amount which would have been excessive interest shall, without penalty, be applied to the
reduction of the principal amount owing on the Loans and not to the payment of interest, or
refunded to the Borrower or other payor thereof if and to the extent such amount which would have
been excessive exceeds such unpaid principal amount of the Loans. The right to demand payment of
the Loans or any other Indebtedness evidenced by any of the Credit Documents does not include the
right to receive any interest which has not otherwise accrued on the date of such demand, and the
Lenders do not intend to charge or receive any unearned interest in the event of such demand. All
interest paid or agreed to be paid to the Lenders with respect to the Loans shall, to the extent
permitted by applicable law,



45









 






be amortized, prorated, allocated, and spread throughout the full
stated term (including any renewal or extension) of the Loans so that the amount of interest on
account of such indebtedness does not exceed the maximum nonusurious amount permitted by applicable
law.



     Section 2.12 Pro Rata Treatment and Payments.




     (a) Allocation of Payments Before Event of Default. Each borrowing of Revolving Loans
and any reduction of the Revolving Commitments shall be made pro rata according to
the respective Revolving Commitment Percentages of the Lenders. Each payment under this Credit
Agreement or any Note shall be applied, first, to any fees then due and owing by the
Borrower pursuant to Section 2.6, second, except as set forth in Section 2.8(a), to
interest then due and owing hereunder and under the Notes and, third, to principal then due
and owing hereunder and under the Notes. Each payment on account of any fees pursuant to Section
2.6 shall be made pro rata in accordance with the respective amounts due and owing
(except as to the Fronting Fees and the Issuing Lender Fees). Each payment (other than
prepayments) by the Borrower on account of principal of and interest on the Revolving Loans and on
the Tranche B Term Loan shall be applied to such Loans as directed by the Borrower or otherwise
applied in accordance with the terms of Section 2.8(a) hereof. Each optional prepayment on account
of principal of the Loans shall be applied in accordance with Section 2.8(a); provided,
that prepayments made pursuant to Section 2.17 shall be applied in accordance with such Section.
Each mandatory prepayment on account of principal of the Loans shall be applied in accordance with
Section 2.8(b). All payments (including prepayments) to be made by the Borrower on account of
principal, interest and fees shall be made without defense, set-off or counterclaim (except as
provided in Section 2.18(b)) and shall be made to the Administrative Agent for the account of the
Lenders at the Administrative Agent’s office specified on Section 9.2 in Dollars and in immediately
available funds not later than 1:00 P.M. on the date when due. The Administrative Agent shall
distribute such payments to the Lenders entitled thereto promptly upon receipt in like funds as
received. If any payment hereunder (other than payments on the LIBOR Rate Loans) becomes due and
payable on a day other than a Business Day, 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 LIBOR Rate Loan becomes due and
payable on a day other than a Business Day, the maturity thereof shall be extended to the next
succeeding Business Day 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) Allocation of Payments After Exercise of Remedies. Notwithstanding any other
provisions of this Credit Agreement to the contrary, after the exercise of remedies (other than the
invocation of default interest pursuant to Section 2.9(b) by the Administrative Agent or the
Lenders pursuant to Section 7.2 (or after the Commitments shall automatically terminate and the
Loans (with accrued interest thereon) and all other amounts under the Credit Documents (including
without limitation the maximum amount of all contingent liabilities under Letters of Credit) shall
automatically become due and



46









 




payable in accordance with the terms of such Section), all amounts
collected or received by the Administrative Agent or any Lender on account of the Credit Party
Obligations or any other amounts outstanding under any of the Credit Documents or in respect of the
Collateral shall be paid over or delivered as follows:




     FIRST, to the payment of all reasonable out-of-pocket costs and expenses (including
without limitation reasonable attorneys’ fees) of the Administrative Agent in connection
with enforcing the rights of the Lenders under the Credit Documents and any protective
advances made by the Administrative Agent with respect to the Collateral under or pursuant
to the terms of the Collateral Documents;




     SECOND, to the payment of any fees owed to the Administrative Agent;




     THIRD, to the payment of all reasonable out-of-pocket costs and expenses (including
without limitation, reasonable attorneys’ fees) of each of the Lenders in connection with
enforcing its rights under the Credit Documents or otherwise with respect to the Credit
Party Obligations owing to such Lender;




     FOURTH, to the payment of all of the Credit Party Obligations consisting of accrued
fees and interest, including, with respect to any Secured Hedging Agreement, any fees,
premiums and scheduled periodic payments due under such Secured Hedging Agreement and any
interest accrued thereon;




     FIFTH, to the payment of the outstanding principal amount of the Credit Party
Obligations and the payment or cash collateralization of the outstanding LOC Obligations,
including, with respect to any Secured Hedging Agreement, any breakage, termination or other
payments due under such Hedging Agreement and any interest accrued thereon;




     SIXTH, to all other Credit Party Obligations and other obligations which shall have
become due and payable under the Credit Documents or otherwise and not repaid pursuant to
clauses “FIRST” through “FIFTH” above; and




     SEVENTH, to the payment of the surplus, if any, to whoever may be lawfully entitled to
receive such surplus.




In carrying out the foregoing, (i) amounts received shall be applied in the numerical order
provided until exhausted prior to application to the next succeeding category; (ii) each of
the Lenders and any Hedging Agreement Providers shall receive an amount equal to its pro
rata share (based on the proportion that the then outstanding Loans and LOC Obligations held
by such Lender or the outstanding obligations payable to such Hedging Agreement Provider
bears to the aggregate then outstanding Loans, LOC Obligations and
obligations payable under all Secured Hedging Agreements) of amounts available to be applied
pursuant to clauses “THIRD”, “FOURTH”, “FIFTH” and “SIXTH” above; and (iii) to the extent
that any amounts available for distribution pursuant to clause “FIFTH” above are
attributable to the issued but undrawn amount of outstanding Letters of Credit,



47








 






such amounts
shall be held by the Administrative Agent in a cash collateral account and applied
(A) first, to reimburse the Issuing Lender from time to time for any drawings under such
Letters of Credit and (B) then, following the expiration of all Letters of Credit, to all
other obligations of the types described in clauses “FIFTH” and “SIXTH” above in the manner
provided in this Section 2.12(b). Notwithstanding the foregoing terms of this Section
2.12(b), only Collateral proceeds and payments under the Guaranty shall be applied to
obligations under any Secured Hedging Agreement.



     Section 2.13 Non-Receipt of Funds by the Administrative Agent.




     (a) Unless the Administrative Agent shall have been notified in writing by a Lender prior to
the date a Loan is to be made by such Lender (which notice shall be effective upon receipt) that
such Lender does not intend to make the proceeds of such Loan available to the Administrative
Agent, the Administrative Agent may assume that such Lender has made such proceeds available to the
Administrative Agent on such date, and the Administrative Agent may in reliance upon such
assumption (but shall not be required to) make available to the Borrower a corresponding amount.
If such corresponding amount is not in fact made available to the Administrative Agent, the
Administrative Agent shall be able to recover such corresponding amount from such Lender. If such
Lender does not pay such corresponding amount forthwith upon the Administrative Agent’s demand
therefor, the Administrative Agent will promptly notify the Borrower, and the Borrower shall
immediately pay such corresponding amount to the Administrative Agent. The Administrative Agent
shall also be entitled to recover from the Lender or the Borrower, as the case may be, interest on
such corresponding amount in respect of each day from the date such corresponding amount was made
available by the Administrative Agent to the Borrower to the date such corresponding amount is
recovered by the Administrative Agent at a per annum rate equal to (i) from the Borrower at the
applicable rate for the applicable borrowing pursuant to the Notice of Borrowing and (ii) from a
Lender at the Federal Effective Funds Rate.




     (b) Unless the Administrative Agent shall have been notified in writing by the Borrower, prior
to the date on which any payment is due from it hereunder (which notice shall be effective upon
receipt) that the Borrower does not intend to make such payment, the Administrative Agent may
assume that the Borrower has made such payment when due, and the Administrative Agent may in
reliance upon such assumption (but shall not be required to) make available to each Lender on such
payment date an amount equal to the portion of such assumed payment to which such Lender is
entitled hereunder, and if the Borrower has not in fact made such payment to the Administrative
Agent, such Lender shall, on demand, repay to the Administrative Agent the amount made available to
such Lender. If such amount is repaid to the Administrative Agent on a date after the date such
amount was made available to such Lender, such Lender shall pay to the Administrative Agent on
demand interest on such amount in respect of each day from the date such amount was made available
by the Administrative Agent to such Lender to the date such amount is recovered by the
Administrative Agent at a per annum rate equal to the Federal Funds Effective Rate.



48









 






     (c) A certificate of the Administrative Agent submitted to the Borrower or any Lender with
respect to any amount owing under this Section 2.13 shall be conclusive in the absence of manifest
error.



     Section 2.14 Inability to Determine Interest Rate.



     Notwithstanding any other provision of this Credit Agreement, if (i) the Administrative Agent
shall reasonably determine (which determination shall be conclusive and binding absent manifest
error) that, by reason of circumstances affecting the relevant market, reasonable and adequate
means do not exist for ascertaining LIBOR for such Interest Period, or (ii) the Required Lenders
shall reasonably determine (which determination shall be conclusive and binding absent manifest
error) that the LIBOR Rate does not adequately and fairly reflect the cost to such Lenders of
funding LIBOR Rate Loans that the Borrower has requested be outstanding as a LIBOR Tranche during
such Interest Period, the Administrative Agent shall forthwith give telephone notice of such
determination, confirmed in writing, to the Borrower, and the Lenders at least two Business Days
prior to the first day of such Interest Period. Unless the Borrower shall have notified the
Administrative Agent upon receipt of such telephone notice that it wishes to rescind or modify its
request regarding such LIBOR Rate Loans, any Loans that were requested to be made as LIBOR Rate
Loans shall be made as Alternate Base Rate Loans and any Loans that were requested to be converted
into or continued as LIBOR Rate Loans shall remain as or be converted into Alternate Base Rate
Loans. Until any such notice has been withdrawn by the Administrative Agent, no further Loans
shall be made as, continued as, or converted into, LIBOR Rate Loans for the Interest Periods so
affected.



     Section 2.15 Illegality.



     Notwithstanding any other provision of this Credit Agreement, if the adoption of or any change
in any Requirement of Law or in the interpretation or application thereof by the relevant
Governmental Authority to any Lender shall make it unlawful for such Lender or its LIBOR Lending
Office to make or maintain LIBOR Rate Loans as contemplated by this Credit Agreement or to obtain
in the interbank eurodollar market through its LIBOR Lending Office the funds with which to make
such Loans, (a) such Lender shall promptly notify the Administrative Agent and the Borrower
thereof, (b) the commitment of such Lender hereunder to make LIBOR Rate Loans or continue LIBOR
Rate Loans as such shall forthwith be suspended until the Administrative Agent shall give notice
that the condition or situation which gave rise to the suspension shall no longer exist, and (c)
such Lender’s Loans then outstanding as LIBOR Rate Loans, if any, shall be converted on the last
day of the Interest Period for such Loans or within such earlier period as required by law as
Alternate Base Rate Loans. The Borrower hereby agrees promptly to pay any Lender, upon its demand,
any additional amounts necessary to compensate such Lender for actual and direct costs (but not
including anticipated profits) reasonably incurred by such Lender in making any repayment in
accordance with this Section including, but not limited to, any interest or fees payable by such
Lender to lenders of funds obtained by it in order to make or maintain its LIBOR Rate Loans
hereunder. 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. Each Lender agrees to use reasonable efforts (including reasonable
efforts to change its LIBOR



49









 




Lending Office) to avoid or to minimize any amounts which may otherwise
be payable pursuant
to this Section; provided, however, that such efforts shall not cause the
imposition on such Lender of any additional costs or legal or regulatory burdens deemed by such
Lender in its sole discretion to be material.




     Section 2.16 Requirements of Law.




     (a) If the adoption of or any change in any Requirement of Law or in the interpretation or
application thereof 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 made subsequent to
the date hereof:




     (i) shall subject such Lender to any tax of any kind whatsoever with respect to any
Letter of Credit, any participation therein or any application relating thereto, any LIBOR
Rate Loan made by it, or change the basis of taxation of payments to such Lender in respect
thereof (except for changes in the rate of tax on the overall net income of such Lender);




     (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 LIBOR Rate hereunder; or




     (iii) shall impose on such Lender any other condition;




and the result of any of the foregoing is to increase the cost to such Lender of making or
maintaining LIBOR Rate Loans or the Letters of Credit or the participations therein or to reduce
any amount receivable hereunder or under any Note, then, in any such case, the Borrower shall
promptly pay such Lender, upon its demand, any additional amounts necessary to compensate such
Lender for such additional cost or reduced amount receivable which such Lender reasonably deems to
be material as determined by such Lender with respect to its LIBOR Rate Loans or Letters of Credit.
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; provided that the Borrower shall not be required to compensate a Lender
pursuant to this Section for any additional amounts due and owing to the extent such Lender shall
have failed to give notice to the Borrower within 90 days after such Lender became aware of the
event or occurrence giving rise to such additional amounts. Each Lender agrees to use reasonable
efforts (including reasonable efforts to change its Domestic Lending Office or LIBOR Lending
Office, as the case may be) to avoid or to minimize any amounts which might otherwise be payable
pursuant to this paragraph of this Section; provided, however, that such efforts
shall not cause the imposition on such Lender of any additional costs or legal or regulatory
burdens reasonably deemed by such Lender to be material.



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(b) If any Lender shall have reasonably 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
central bank or Governmental Authority made subsequent to the date hereof 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 its obligations hereunder to a level below that which such Lender or such
corporation could have achieved but for such adoption, change or compliance (taking into
consideration such Lender’s or such corporation’s policies with respect to capital adequacy) by an
amount reasonably deemed by such Lender to be material, then from time to time, within fifteen (15)
days after demand by such Lender, the Borrower shall pay to such Lender such additional amount as
shall be certified by such Lender as being required to compensate it for such reduction. Such a
certificate as to any additional amounts payable under this Section submitted by a Lender (which
certificate shall include a description of the basis for the computation), through the
Administrative Agent, to the Borrower shall be conclusive absent manifest error.




(c) The agreements in this Section 2.16 shall survive the termination of this Credit Agreement
and payment of the Notes and all other amounts payable hereunder.



     Section 2.17 Indemnity.



     The Borrower hereby agrees to indemnify each Lender and to hold such Lender harmless from any
funding loss or expense which such Lender may sustain or incur as a consequence of (a) the failure
by the Borrower to pay the principal amount of or interest on any Loan by such Lender in accordance
with the terms hereof, (b) the failure of the Borrower to accept a borrowing after the Borrower has
given a notice in accordance with the terms hereof, (c) the failure of the Borrower to make any
prepayment after the Borrower has given a notice in accordance with the terms hereof, and/or (d)
the making by the Borrower of a prepayment of a Loan, or the conversion thereof, on a day which is
not the last day of the Interest Period with respect thereto, in each case including, but not
limited to, any such loss or expense arising from interest or fees payable by such Lender to
lenders of funds obtained by it in order to maintain its Loans hereunder. A certificate as to any
additional amounts payable pursuant to this Section submitted by any Lender, through the
Administrative Agent, to the Borrower (which certificate must be delivered to the Administrative
Agent within thirty days following such default, prepayment or conversion) shall be conclusive in
the absence of manifest error. The agreements in this Section shall survive termination of this
Credit Agreement and payment of the Notes and all other amounts payable hereunder.



     Section 2.18 Taxes.




     (a) All payments made by the Borrower hereunder or under any Note will be, except as provided
in Section 2.18(b), made free and clear of, and without deduction or withholding for, any present
or future taxes, levies, imposts, duties, fees, assessments or other charges of whatever nature now
or hereafter imposed by any Governmental



51









 






Authority or by any political subdivision or taxing
authority thereof or therein with respect to such payments (but excluding any tax imposed on or
measured by the net income or profits of a Lender pursuant to the laws of the jurisdiction in which
it is organized or the jurisdiction in which the principal office or applicable lending office of
such Lender is located or any subdivision thereof or therein) and all interest, penalties or
similar liabilities with respect thereto (all such non-excluded taxes, levies, imposts, duties,
fees, assessments or other charges being referred to collectively as “Taxes”). If
any Taxes are so levied or imposed, the Borrower agrees to pay the full amount of such Taxes,
and such additional amounts as may be necessary so that every payment of all amounts due under this
Credit Agreement or under any Note, after withholding or deduction for or on account of any Taxes,
will not be less than the amount provided for herein or in such Note, except that the Borrower
shall not be obligated to pay any such taxes, charges or similar levies that are incurred or
payable by any Person in connection with any assignment referred to in Section 9.6(c), any
participation referred to in Section 9.6(b) or any pledge or security interest referred to in
Section 9.6(h). The Borrower will furnish to the Administrative Agent as soon as practicable after
the date the payment of any Taxes is due pursuant to applicable law certified copies (to the extent
reasonably available and required by law) of tax receipts evidencing such payment by the Borrower.
The Borrower agrees to indemnify and hold harmless each Lender, and reimburse such Lender upon its
written request, for the amount of any Taxes so levied or imposed and paid by such Lender.




     (b) Each Lender that is not a United States person (as such term is defined in Section
7701(a)(30) of the Code) agrees to deliver to the Borrower and the Administrative Agent on or prior
to the Closing Date, or in the case of a Lender that is an assignee or transferee of an interest
under this Credit Agreement pursuant to Section 9.6(d) (unless the respective Lender was already a
Lender hereunder immediately prior to such assignment or transfer), on the date of such assignment
or transfer to such Lender, (i) if the Lender is a “bank” within the meaning of Section
881(c)(3)(A) of the Code, two accurate and complete original signed copies of Internal Revenue
Service Form W-8BEN, W-8ECI or W-8IMY (or successor forms) certifying such Lender’s entitlement to
a complete exemption from United States withholding tax with respect to payments to be made under
this Credit Agreement and under any Note, or (ii) if the Lender is not a “bank” within the meaning
of Section 881(c)(3)(A) of the Code, either Internal Revenue Service Form W-8BEN, W-8ECI or W-8IMY
as set forth in clause (i) above, or (x) a certificate in substantially the form of Schedule
2.18 (any such certificate, a “Tax Exempt Certificate”) and (y) two accurate and
complete original signed copies of Internal Revenue Service Form W-8BEN (or successor form)
certifying such Lender’s entitlement to an exemption from United States withholding tax with
respect to payments of interest to be made under this Credit Agreement and under any Note. In
addition, each Lender agrees that it will deliver upon the Borrower’s request updated versions of
the foregoing, as applicable, whenever the previous certification has become obsolete or inaccurate
in any material respect, together with such other forms as may be required in order to confirm or
establish the entitlement of such Lender to a continued exemption from or reduction in United
States withholding tax with respect to payments under this Credit Agreement and any Note.
Notwithstanding anything to the contrary contained in Section



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2.18(a), but subject to the
immediately succeeding sentence, (x) the Borrower shall be entitled, to the extent it is required
to do so by law, to deduct or withhold Taxes imposed by the United States (or any political
subdivision or taxing authority thereof or therein) from interest, fees or other amounts payable
hereunder for the account of any Lender which is not a United States person (as such term is
defined in Section 7701(a)(30) of the Code) for U.S. federal income tax purposes to the extent that
such Lender has not provided to the Borrower U.S. Internal Revenue Service Forms that establish a
complete exemption from such deduction or withholding and (y) the Borrower shall not be obligated
pursuant to Section 2.18(a) hereof to gross-up payments to be made to a Lender in respect of Taxes
imposed by the United States if (I) such Lender has not provided to the Borrower the Internal
Revenue Service Forms required to be provided to the Borrower pursuant to this Section 2.18(b) or
(II) in the case of a
payment, other than interest, to a Lender described in clause (ii) above, to the extent that
such Forms do not establish a complete exemption from withholding of such Taxes. Notwithstanding
anything to the contrary contained in the preceding sentence or elsewhere in this Section 2.18, the
Borrower agrees to pay additional amounts and to indemnify each Lender in the manner set forth in
Section 2.18(a) (without regard to the identity of the jurisdiction requiring the deduction or
withholding) in respect of any amounts deducted or withheld by it as described in the immediately
preceding sentence as a result of any changes after the Closing Date in any applicable law, treaty,
governmental rule, regulation, guideline or order, or in the interpretation thereof, relating to
the deducting or withholding of Taxes.




     (c) Each Lender agrees to use reasonable efforts (including reasonable efforts to change its
Domestic Lending Office or LIBOR Lending Office, as the case may be) to avoid or to minimize any
amounts which might otherwise be payable pursuant to this Section; provided,
however, that such efforts shall not cause the imposition on such Lender of any additional
costs or legal or regulatory burdens deemed by such Lender in its sole discretion to be material.




     (d) If the Borrower pays any additional amount pursuant to this Section 2.18 with respect to a
Lender, such Lender shall use reasonable efforts to obtain a refund of tax or credit against its
tax liabilities on account of such payment; provided that such Lender shall have no
obligation to use such reasonable efforts if either (i) it is in an excess foreign tax credit
position or (ii) it believes in good faith, in its sole discretion, that claiming a refund or
credit would cause adverse tax consequences to it. In the event that such Lender receives such a
refund or credit, such Lender shall pay to the Borrower an amount that such Lender reasonably
determines is equal to the net tax benefit obtained by such Lender as a result of such payment by
the Borrower. In the event that no refund or credit is obtained with respect to the Borrower’s
payments to such Lender pursuant to this Section 2.18, then such Lender shall upon request provide
a certification that such Lender has not received a refund or credit for such payments. Nothing
contained in this Section 2.18 shall require a Lender to disclose or detail the basis of its
calculation of the amount of any tax benefit or any other amount or the basis of its determination
referred to in the proviso to the first sentence of this Section 2.18 to the Borrower or any other
party.



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     (e) The agreements in this Section 2.18 shall survive the termination of this Credit Agreement
and the payment of the Notes and all other amounts payable hereunder.



     Section 2.19
Indemnification; Nature of Issuing Lender’s Duties.




     (a) In addition to its other obligations under Section 2.3, the Borrower hereby agrees to
protect, indemnify, pay and save the Issuing Lender and each Revolving Lender harmless from and
against any and all claims, demands, liabilities, damages, losses, costs, charges and expenses
(including reasonable attorneys’ fees) that the Issuing Lender or such Revolving Lender may incur
or be subject to as a consequence, direct or indirect, of (i) the issuance of any Letter of Credit
or (ii) the failure of the Issuing Lender to honor a drawing under a Letter of Credit as a result
of any act or omission, whether rightful or wrongful, of any present or future de jure or de facto
government or Governmental Authority (all such acts or omissions, herein called “Government
Acts”).




     (b) As between the Borrower and the Issuing Lender and each Revolving Lender, the Borrower
shall assume all risks of the acts, omissions or misuse of any Letter of Credit by the beneficiary
thereof. Neither the Issuing Lender nor any Revolving Lender shall be responsible: (i) for the
form, validity, sufficiency, accuracy, genuineness or legal effect of any document submitted by any
party in connection with the application for and issuance of any Letter of Credit, even if it
should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or
forged; (ii) for the validity or sufficiency of any instrument transferring or assigning or
purporting to transfer or assign any Letter of Credit or the rights or benefits thereunder or
proceeds thereof, in whole or in part, that may prove to be invalid or ineffective for any reason;
(iii) for failure of the beneficiary of a Letter of Credit to comply fully with conditions required
in order to draw upon a Letter of Credit; (iv) for errors, omissions, interruptions or delays in
transmission or delivery of any messages, by mail, cable, telegraph, telex or otherwise, whether or
not they be in cipher; (v) for errors in interpretation of technical terms; (vi) for any loss or
delay in the transmission or otherwise of any document required in order to make a drawing under a
Letter of Credit or of the proceeds thereof; and (vii) for any consequences arising from causes
beyond the control of the Issuing Lender or any Revolving Lender, including, without limitation,
any Government Acts. None of the above shall affect, impair, or prevent the vesting of the Issuing
Lender’s rights or powers hereunder.




     (c) In furtherance and extension and not in limitation of the specific provisions hereinabove
set forth, any action taken or omitted by the Issuing Lender or any Revolving Lender, under or in
connection with any Letter of Credit or the related certificates, if taken or omitted in the
absence of gross negligence or willful misconduct, shall not put such Issuing Lender or such
Revolving Lender under any resulting liability to the Borrower. It is the intention of the parties
that this Credit Agreement shall be construed and applied to protect and indemnify the Issuing
Lender and each Revolving Lender against any and all risks involved in the issuance of the Letters
of Credit, all of which risks are hereby assumed by the Borrower, including, without limitation,
any and all risks of the acts or omissions, whether rightful or wrongful, of any Government



54









 






Authority. The Issuing Lender and the Revolving Lenders shall not, in any way, be liable for any
failure by the Issuing Lender or anyone else to pay any drawing under any Letter of Credit as a
result of any Government Acts or any other cause beyond the control of the Issuing Lender and the
Revolving Lenders.




     (d) Nothing in this Section 2.19 is intended to limit the reimbursement obligation of the
Borrower contained in Section 2.3(d) hereof. The obligations of the Borrower under this Section
2.19 shall survive the termination of this Credit Agreement. No act or omissions of any current or
prior beneficiary of a Letter of Credit shall in any way affect or impair the rights of the Issuing
Lender and the Revolving Lenders to enforce any right, power or benefit under this Credit
Agreement.




     (e) Notwithstanding anything to the contrary contained in this Section 2.19, the Borrower
shall have no obligation to indemnify the Issuing Lender or any Revolving Lender in respect of any
liability incurred by the Issuing Lender or such Revolving Lender arising out of the gross
negligence or willful misconduct of the Issuing Lender (including action not taken by the Issuing
Lender or such Revolving Lender), as determined by a court of competent jurisdiction or pursuant to
arbitration.



ARTICLE III




REPRESENTATIONS AND WARRANTIES



     To induce the Lenders to enter into this Credit Agreement and to make the Extensions of Credit
herein provided for, each of the Credit Parties hereby represents and warrants to the
Administrative Agent and to each Lender that:



     Section 3.1 Financial Condition.




     (a) (i) The audited Consolidated financial statements of the Borrower and its Subsidiaries for
the fiscal years ended 2001, 2002 and 2003, together with the related Consolidated statements of
income or operations, equity and cash flows for the fiscal years ended on such dates, (ii) the
unaudited Consolidated financial statements of the Borrower and its Subsidiaries for the six-month
period ending on the last day of the month that ended immediately prior to the Closing Date,
together with the related Consolidated statements of income or operations, equity and cash flows
for the six-month period ending on such date and (iii) a pro forma balance sheet of the Borrower
and its Subsidiaries, giving effect to the initial borrowings and the other transactions
contemplated to occur on the Closing Date, as of the last day of the month that ended immediately
prior to the date twenty (20) days prior to the Closing Date:




     (A) were prepared in accordance with GAAP consistently applied throughout the
period covered thereby, except as otherwise expressly noted therein;



55









 






     (B) fairly present the financial condition of the Borrower and its Subsidiaries
as of the date thereof (subject, in the case of the unaudited financial statements,
to normal year-end adjustments and the absence of footnotes) and results of
operations for the period covered thereby; and




     (C) with respect to clause (a)(i) above, show all material Indebtedness and
other liabilities, direct or contingent, of the Borrower and its Subsidiaries as of
the date thereof, including liabilities for taxes, material commitments and
contingent obligations.




     (b) The projections of the Borrower and its Subsidiaries delivered to the Administrative Agent
on or prior to the Closing Date (consisting of balance sheets and statements of income and cash
flows prepared on a quarterly basis through the first four complete fiscal quarters after the
Closing Date and thereafter on an annual basis through 2010) have been prepared in good faith based
upon reasonable assumptions.



     Section 3.2 No Change.



     Since November 1, 2003, there has been no development or event which has had or that the
Borrower has reasonably concluded could be expected to have a Material Adverse Effect.



     Section 3.3 Corporate Existence.



     Each of the Credit Parties (a) is duly organized, validly existing and, to the extent
applicable, in good standing under the laws of the jurisdiction of its organization, (b) has the
requisite power and authority and the legal right to own and operate all its material property, to
lease the material property it operates as lessee and to conduct the business in which it is
currently engaged, and (c) is duly qualified to conduct business and in good standing under the
laws of each jurisdiction except where the failure to be so qualified could not reasonably be
expected to have a Material Adverse Effect. The jurisdictions in which the Credit Parties as of
the Closing Date are organized and qualified to do business are described on Schedule 3.3.



     Section 3.4 Corporate Power; Authorization; Enforceable Obligations.



     Each of the Credit Parties has full power and authority and the legal right to make, deliver
and perform the Credit Documents to which it is party and has taken all necessary action to
authorize the execution, delivery and performance by it of the Credit Documents to which it is
party. No consent or authorization of, filing with, notice to or other act by or in respect of,
any Governmental Authority or any other Person is required in connection with the borrowings
hereunder or with the execution, delivery or performance of any Credit Document by any of the
Credit Parties (other than those which have been obtained or those with respect to which the
Borrower has reasonably concluded that the failure to obtain could not reasonably be expected to
have a Material Adverse Effect) or with the validity or enforceability of any Credit Document
against any of the Credit Parties (except such filings as are necessary in connection with the
perfection of the Liens created by such Credit Documents). Each Credit Document to which it is a
party has been duly executed and delivered on behalf of the applicable Credit Party. Each



56









 




Credit
Document to which it is a party constitutes a legal, valid and binding obligation of each such
Credit Party, enforceable against such Credit Party in accordance with its terms, 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).




     Section 3.5 Compliance with Laws; No Conflict; No Default.




     (a) The execution, delivery and performance by each Credit Party of the Credit Documents to
which such Credit Party is a party, in accordance with their respective terms, the borrowings
hereunder and the transactions contemplated hereby do not and will not, by the passage of time, the
giving of notice or otherwise, (i) require any Governmental Approval (other than such Governmental
Approvals that have been obtained or made and not subject to suspension, revocation or termination)
or violate any Requirement of Law relating to such Credit Party, (ii) conflict with, result in a
breach of or constitute a default under the articles of incorporation, bylaws, articles of
organization, partnership agreement, operating agreement or other organizational documents of such
Credit Party, any Material Contract to which such Person is a party or by which any of its
properties may be bound or any Governmental Approval relating to such Person, or (iii) result in or
require the creation or imposition of any Lien upon or with respect to any property now owned or
hereafter acquired by such Person other than Liens arising under the Credit Documents.




     (b) Each Credit Party (i) (x) has all Governmental Approvals required by law for it to conduct
its business, each of which is in full force and effect, (y) each such Governmental
Approval is final and not subject to review on appeal and (z) each such Governmental Approval
is not the subject of any pending or, to the best of its knowledge, threatened attack by direct or
collateral proceeding, and (ii) is in compliance with each Governmental Approval applicable to it
and in compliance with all other Requirements of Law relating to it or any of its respective
properties, in each case except to the extent the failure to obtain such Governmental Approval or
failure to comply with such Governmental Approval or Requirement of Law could not reasonably be
expected to have a Material Adverse Effect. Each Credit Party possesses or has the right to use,
all leaseholds, licenses, easements and franchises and all authorizations and other rights that are
material to and necessary for the conduct of its business. Except to the extent noncompliance with
the foregoing leaseholds, easements and franchises could not reasonably be expected to have a
Material Adverse Effect, all of the foregoing are in full force and effect, and the Credit Parties
are in substantial compliance with the foregoing without any known conflict with the valid rights
of others. No event has occurred which permits, or after notice or lapse of time or both would
permit, the revocation or termination of any such Governmental Approval, leasehold, license,
easement, franchise or other right, which termination or revocation could, individually or in the
aggregate, reasonably be expected to have Material Adverse Effect, except that certain of the
leasehold interests of the Credit Parties which, taken in the aggregate, may be material to the
Credit Parties, are tenancies at will which may be terminated by the lessor thereunder at any time
upon delivery of the requisite notice required by state law.




57











 






     (c) None of the Credit Parties is in default under or with respect to any of its of its
Contractual Obligations, or any judgment, order or decree to which it is a party, in any respect
which could reasonably be expected to have a Material Adverse Effect. No Default or Event of
Default has occurred and is continuing.



     Section 3.6 No Material Litigation.



     No litigation, investigation or proceeding of or before any arbitrator or Governmental
Authority is pending or, to the best knowledge of the Credit Parties, threatened by or against any
of them or against any of their respective properties or revenues (a) with respect to the Credit
Documents or any Loan or any of the transactions contemplated hereby, or (b) which the Borrower has
reasonably concluded could be expected to have a Material Adverse Effect.



     Section 3.7 Investment Company Act; PUHCA.



     None of the Credit Parties (a) is an “investment company”, or a company “controlled” by an
“investment company”, within the meaning of the Investment Company Act of 1940, as amended or (b)
is a “holding company,” or a “subsidiary company” of a “holding company,” or an “affiliate” of a
“holding company” or of a “subsidiary company” of a “holding company,” within the meaning of the
Public Utility Holding Company Act of 1935.



     Section 3.8 Margin Regulations.



     No part of the proceeds of any Loan hereunder will be used directly or indirectly for any
purpose which violates, or which would be inconsistent with, the provisions of Regulation T, U or X
of the Board of Governors of the Federal Reserve System as now and from time to time hereafter in
effect. The Credit Parties (a) are not engaged, principally or as one of its important activities,
in the business of extending credit for the purpose of “purchasing” or “carrying” “margin stock”
within the respective meanings of each of such terms under Regulation U and (b) taken as a group do
not own “margin stock” except as identified in the financial statements referred to in Section 3.1
and the aggregate value of all “margin stock” owned by the Credit Parties taken as a group does not
exceed 25% of the value of their assets.



     Section 3.9 ERISA.



     Neither a Reportable Event nor an “accumulated funding deficiency” (within the meaning of
Section 412 of the Code or Section 302 of ERISA) has occurred during the five-year period prior to
the date on which this representation is made or deemed made with respect to any Plan, and each
Plan has complied in all material respects with the applicable provisions of ERISA and the Code,
except to the extent that any such occurrence or failure to comply would not reasonably be expected
to have a Material Adverse Effect. No termination of a Single Employer Plan has occurred resulting
in any liability that has remained underfunded, and no Lien in favor of the PBGC or a Plan has
arisen, during such five-year period which could reasonably be expected to have a Material Adverse
Effect. The present value of all accrued benefits under each Single Employer Plan (based on those
assumptions used to fund such Plans) did not, as of the



58









 




last annual valuation date prior to the
date on which this representation is made or deemed made, exceed the value of the assets of such
Plan allocable to such accrued benefits by an amount
which, as determined in accordance with GAAP, could reasonably be expected to have a Material
Adverse Effect. Neither the Borrower, nor any Subsidiary of the Borrower nor any Commonly
Controlled Entity is currently subject to any liability for a complete or partial withdrawal from a
Multiemployer Plan that could reasonably be expected to have a Material Adverse Effect.




     Section 3.10 Environmental Matters.



     The Borrower and its Subsidiaries conduct in the ordinary course of business a review of the
effect of existing Environmental Laws and claims alleging potential liability or responsibility for
violation of any Environmental Law on their respective businesses, operations and properties, and
as a result thereof the Borrower has reasonably concluded that such Environmental Laws and claims
could not, individually or in the aggregate, reasonably be expected to have a Material Adverse
Effect.



     Section 3.11 Use of Proceeds.



     The proceeds of the Extensions of Credit shall be used (i) to refinance certain existing
Indebtedness of the Borrower, (ii) to pay transaction costs and expenses associated with this
Credit Agreement and (iii) for working capital, permitted capital expenditures and other general
corporate purposes.



     Section 3.12 Subsidiaries.



     Set forth on Schedule 3.12 is a complete and accurate list of all Subsidiaries of the
Borrower. Information on such Schedule includes the number of shares of each class of Capital
Stock or other equity interests outstanding; the number and percentage of outstanding shares of
each class of stock owned by the Credit Parties or any of their Subsidiaries; the number and
effect, if exercised, of all outstanding options, warrants, rights of conversion or purchase and
similar rights. The outstanding Capital Stock and other equity interests of all such Subsidiaries
is validly issued, fully paid and non-assessable and is owned, free and clear of all Liens (other
than those arising under or contemplated in connection with the Credit Documents).



     Section 3.13 Ownership.



     Each of the Credit Parties is the owner of, and has good and marketable title to, all of its
respective assets, which, together with assets leased or licensed by the Credit Parties, represents
such assets individually or in the aggregate material to the conduct of the businesses of the
Credit Parties, taken as a whole on the date hereof, and none of such assets is subject to any Lien
other than Permitted Liens. Each Credit Party enjoys peaceful and undisturbed possession under all
of its leases and all such leases are valid and subsisting and in full force and effect. The
Credit Parties have delivered complete and accurate copies of all material leases to the
Administrative Agent.



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     Section 3.14 Indebtedness.



     Except as otherwise permitted under Section 6.1, the Credit Parties have no Indebtedness.



     Section 3.15 Taxes.



     Each of the Credit Parties has filed, or caused to be filed, all tax returns (federal, state,
local and foreign) required to be filed and paid (a) all amounts of taxes shown thereon to be due
(including interest and penalties) and (b) all other material taxes, fees, assessments and other
governmental charges (including mortgage recording taxes, documentary stamp taxes and intangibles
taxes) owing by it, except for such taxes (i) which are not yet delinquent or (ii) that are being
contested in good faith and by proper proceedings, and against which adequate reserves are being
maintained in accordance with GAAP. None of the Credit Parties is aware as of the Closing Date of
any proposed tax assessments against it or any of its Subsidiaries which could reasonably be
expected to have a Material Adverse Effect.



     Section 3.16 Intellectual Property Rights.



     Each of the Credit Parties and their Subsidiaries owns, or has the legal right to use, all
Intellectual Property necessary for each of them to conduct its business as currently conducted.
Set forth on Schedule 3.16 is a list of all Intellectual Property owned by each of the
Credit Parties and their Subsidiaries or that the Credit Parties or any of their Subsidiaries has
the right to use. Except as disclosed in Schedule 3.16 hereto, (a) one or more of the
Credit Parties has the right to use the Intellectual Property disclosed in Schedule 3.16
hereto in perpetuity and without payment of royalties, (b) all registrations with and applications
to Governmental Authorities in respect of such Intellectual Property are valid and in full force
and effect and are not subject to the payment of any taxes or maintenance fees (except for such
taxes and maintenance fees which are not yet delinquent) or the taking of any interest therein,
held by any of the Credit Parties to maintain their validity or effectiveness, and (c) there are no
restrictions on the direct or indirect transfer of any Contractual Obligation, or any interest
therein, held by any of the Credit Parties in respect of such Intellectual Property. None of the
Credit Parties is in default (or with the giving of notice or lapse of time or both, would be in
default) under any license to use such Intellectual Property; 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 do the Credit Parties or any of
their Subsidiaries know of any such claim; and, to the knowledge of the Credit Parties or any of
their Subsidiaries, the use of such Intellectual Property by the Credit Parties or any of their
Subsidiaries does not infringe on the rights of any Person. The Credit Parties have recorded or
deposited with and paid to the United States Copyright Office, the Register of Copyrights, the
Copyrights Royalty Tribunal or other Governmental Authority, all notices, statements of account,
royalty fees and other documents and instruments required under the terms and conditions of any
Contractual Obligation of the Credit Parties and/or under Title 17 of the United States Code and
the rules and regulations issued thereunder (collectively, the “Copyright Act”), and are
not liable to any Person for copyright infringement under the Copyright Act or any other law, rule,
regulation, contract or license as a result of their business operations. Schedule 3.16
may be updated from time to time



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     Section 3.17 Solvency.



     The fair saleable value of the assets of the Credit Parties and their respective Subsidiaries,
taken as a whole and measured on a going concern basis, exceeds all probable liabilities, including
those to be incurred pursuant to this Credit Agreement. None of the Credit Parties (a) has
unreasonably small capital in relation to the business in which it is or proposes to be engaged or
(b) has incurred, or believes that it will incur after giving effect to the transactions
contemplated by this Credit Agreement, debts beyond its ability to pay such debts as they become
due. In executing the Credit Documents and consummating the transactions contemplated thereby,
none of the Credit Parties intends to hinder, delay or defraud either present or future creditors
or other Persons to which one or more of the Credit Parties is or will become indebted.




     Section 3.18 Investments.



     All Investments of each of the Credit Parties are Permitted Investments.




     Section 3.19 Location of Collateral.



     Set forth on Schedule 3.19(a) is a list of the properties of the Credit Parties and
their Subsidiaries with street address, county and state where located. Set forth on Schedule
3.19(b) is a list of all locations where any tangible personal property of the Credit Parties
and their Subsidiaries is located, including county and state where located. Set forth on
Schedule 3.19(c) is the chief executive office and principal place of business of each of
the Credit Parties and their Subsidiaries. Schedule 3.19(a), 3.19(b) and
3.19(c) may be updated from time to time by the Borrower to include new properties or
locations by giving written notice thereof to the Administrative Agent.




     Section 3.20 No Burdensome Restrictions.



     None of the Credit Parties is a party to any agreement or instrument or subject to any other
obligation or any charter or corporate restriction or any provision of any applicable law, rule or
regulation which, individually or in the aggregate, could reasonably be expected to have a Material
Adverse Effect.




     Section 3.21 Brokers’ Fees.



     None of the Credit Parties and their Subsidiaries has any obligation to any Person in respect
of any finder’s, broker’s, investment banking or other similar fee in connection with any of the
transactions contemplated under the Credit Documents other than the closing and other fees payable
pursuant to this Credit Agreement and as set forth in the Fee Letter.





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     Section 3.22 Labor Matters.



     There are no collective bargaining agreements or Multiemployer Plans covering the employees of
the Credit Parties as of the Closing Date, other than as set forth in Schedule 3.22 hereto,
and none of the Credit Parties has suffered any strikes, walkouts, work stoppages or other material
labor difficulty within the last five years, other than as set forth in Schedule 3.22
hereto.



     Section 3.23 Accuracy and Completeness of Information.



     All factual information heretofore, contemporaneously or hereafter furnished by or on behalf
of the Credit Parties in writing to the Administrative Agent or any Lender for purposes of or in
connection with this Credit Agreement or any other Credit Document, or any transaction contemplated
hereby or thereby, is or will be true and accurate in all material respects and not incomplete by
omitting to state any material fact necessary to make such information not misleading. There is no
fact now known to any of the Credit Parties which has, or could reasonably be expected to have, a
Material Adverse Effect which fact has not been set forth herein (including the Schedules attached
hereto), in the financial statements of the Credit Parties furnished to the Administrative Agent
and/or the Lenders, or in any certificate, opinion or other written statement made or furnished by
or on behalf of the Credit Parties to the Administrative Agent and/or the Lenders.



     Section 3.24 Material Contracts.



     Schedule 3.24 sets forth a complete and accurate list of all Material Contracts of the
Credit Parties and their Subsidiaries in effect as of the Closing Date. Other than as set forth in
Schedule 3.24, each such Material Contract is, and after giving effect to the transactions
contemplated by the Credit Documents will be, in full force and effect in accordance with the terms
thereof.



     Section 3.25 Insurance.



     The present insurance coverage of the Credit Parties and their Subsidiaries is outlined as to
carrier, policy number, expiration date, type and amount on Schedule 3.25 and such
insurance coverage complies with the requirements set forth in Section 5.5(b).



     Section 3.26 Security Documents.



     The Security Documents create valid security interests in, and Liens on, the Collateral
purported to be covered thereby, which security interests and Liens are currently (or will be, upon
the filing of appropriate financing statements in favor of the Administrative Agent, on behalf of
the Lenders, and on the filing of appropriate termination statements with respect to Liens securing
the obligations of the Credit Parties under the Existing Credit Agreement) perfected security
interests and Liens, prior to all other Liens other than Permitted Liens.



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     Section 3.27 Classification of Senior Indebtedness.



     The Credit Party Obligations constitute “Senior Indebtedness” and “Designated Senior Debt”
under and as defined in any agreement governing any Subordinated Debt, including, without
limitation, the Senior Subordinated Notes, and the subordination provisions set forth in each such
agreement are legally valid and enforceable against the parties thereto.



     Section 3.28 Foreign Assets Control Regulations, Etc.



     Neither any Credit Party nor any of its Subsidiaries is an “enemy” or an “ally of the enemy”
within the meaning of Section 2 of the Trading with the Enemy Act of the United States of America
(50 U.S.C. App. §§ 1 et seq.), as amended. Neither any Credit Party nor any of its Subsidiaries is
in violation of (a) the Trading with the Enemy Act, as amended, (b) any of the foreign assets
control regulations of the United States Treasury Department (31 CFR, Subtitle B,
Chapter V, as amended) or any enabling legislation or executive order relating thereto or (c)
the Patriot Act. None of the Credit Parties (i) is a blocked person described in section 1 of the
Anti-Terrorism Order or (ii) to the best of its knowledge, engages in any dealings or transactions,
or is otherwise associated, with any such blocked person.



ARTICLE IV




CONDITIONS PRECEDENT



     Section 4.1 Conditions to Closing Date.



     This Credit Agreement shall become effective upon, and the obligation of each Lender to make
the initial Revolving Loans, Tranche B Term Loan and the Swingline Loan on the Closing Date is
subject to, the satisfaction of the following conditions precedent:




     (a) Execution of Credit Agreement and Credit Documents. The Administrative Agent
shall have received (i) counterparts of this Credit Agreement, executed by a duly authorized
officer of each party hereto, (ii) for the account of each Revolving Lender requesting a promissory
note, a Revolving Note, (iii) for the account of the Swingline
Lender, the Swingline Note, (iv)
counterparts of the Security Agreement and the Pledge Agreement, in each case conforming to the
requirements of this Credit Agreement and executed by duly authorized officers of the Credit
Parties or other Persons, as applicable and (v) counterparts of any other Credit Document,
executed by the duly authorized officers of the parties thereto.



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     (b) Authority Documents. The Administrative Agent shall have received the following:




     (i) Articles of Incorporation; Partnership Agreement. Copies of the articles
or certificate of incorporation or partnership or other charter documents, of each Credit
Party certified to be true and complete as of a recent date by the appropriate governmental
authority of the state of its organization or formation.




     (ii) Resolutions. Copies of resolutions of the board of directors or other
comparable governing body of each Credit Party approving and adopting the Credit Documents,
the transactions contemplated therein and authorizing execution and delivery thereof,
certified by an officer, general partner or manager of such Credit Party as of the Closing
Date to be true and correct and in force and effect as of such date.




     (iii) Bylaws. A copy of the bylaws, partnership agreement or other operating
agreement of each Credit Party certified by an officer, general partner or manager of such
Credit Party as of the Closing Date to be true and correct and in force and effect as of
such date.




     (iv) Good Standing. Copies of (i) certificates of good standing, existence or
its equivalent with respect to the each Credit Party certified as of a recent date by the
appropriate governmental authorities of the state of incorporation and each other state in
which such Credit Party is qualified to do business and (ii) to the extent readily
available,
a certificate indicating payment of all corporate and other franchise taxes certified
as of a recent date by the appropriate governmental taxing authorities.




     (v) Incumbency. An incumbency certificate of each Credit Party certified by a
secretary or assistant secretary, general partner or manager to be true and correct as of
the Closing Date.




     Each officer’s certificate delivered pursuant to this Section 4.1(b) shall be
substantially in the form of Schedule 4.1(b) hereto.




     (c) Legal Opinions of Counsel. The Administrative Agent shall have received opinions
from counsel to the Credit Parties, dated the Closing Date and addressed to the Administrative
Agent and the Lenders, in form and substance acceptable to the Administrative Agent.




     (d) Personal Property Collateral. The Administrative Agent shall have received, in
form and substance satisfactory to the Administrative Agent:




     (i) searches of Uniform Commercial Code filings in the jurisdiction of the chief
executive office and the jurisdiction of formation of each Credit Party and each
jurisdiction where any Collateral is located or where a filing would need



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to be made in
order to perfect the Administrative Agent’s security interest in the Collateral, copies of
the financing statements on file in such jurisdictions and evidence that no Liens exist
other than Permitted Liens;




     (ii) UCC financing statements for each appropriate jurisdiction as is necessary, in the
Agents’ discretion, to perfect the Administrative Agent’s security interest in the
Collateral;




     (iii) searches of ownership of each Credit Party’s Intellectual Property in the
appropriate governmental offices;




     (iv) such patent/trademark/copyright filings as requested by the Agents in order to
perfect the Administrative Agent’s security interest in the Credit Parties’ Intellectual
Property;




     (v) all stock certificates, if any, evidencing the Capital Stock pledged to the
Administrative Agent pursuant to the Pledge Agreement, together with duly executed in blank
undated stock powers attached thereto;




     (vi) all instruments and chattel paper in the possession of any of the Credit Parties,
together with allonges or assignments as may be necessary or appropriate to perfect the
Administrative Agent’s security interest in the Collateral;




     (vii) duly executed consents as are necessary, in the Agents’ discretion, to perfect
the Lenders’ security interest in the Collateral; and




     (viii) in the case of any personal property Collateral located at premises leased by a
Credit Party, such estoppel letters, consents and waivers from the landlords of such real
property that the Borrower is able to obtain by using its commercially reasonable efforts.




     (e) Liability and Casualty Insurance. The Administrative Agent shall have received
(i) a report from a third party acceptable to the Administrative Agent regarding the Credit
Parties’ insurance status and coverage and (ii) copies of insurance policies or certificates of
insurance evidencing liability and casualty insurance (including, but not limited to, business
interruption insurance) meeting the requirements set forth herein or in the Security Documents.
The Administrative Agent shall be named as loss payee on all casualty insurance policies and as
additional insured on all liability insurance policies, in each case for the benefit of the
Lenders.




     (f) Fees. The Agents and the Lenders shall have received all fees, if any, owing
pursuant to the Fee Letter and Section 2.6.




     (g) Litigation. There shall not exist any material pending or, to the knowledge of
the Credit Parties, threatened litigation, investigation, bankruptcy, insolvency,



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injunction, order
or claim that (i) seeks to enjoin, restrain, restrict, set aside or prohibit, impose material
conditions upon or obtain substantial damages in respect of the consummation or performance of this
Credit Agreement or the other Credit Documents that has not been settled, dismissed, vacated,
discharged or terminated prior to the Closing Date or (ii) that the Borrower has reasonably
concluded could be expected to have a Material Adverse Effect.




     (h) Solvency Certificate. The Administrative Agent shall have received an officer’s
certificate prepared by the chief financial officer of the Borrower as to the financial condition,
solvency and related matters of the Credit Parties and their Subsidiaries, after giving effect to
the initial borrowings under the Credit Documents, in substantially the form of Schedule
4.1(h) hereto.




     (i) Account Designation Letter. The Administrative Agent shall have received the
executed Account Designation Letter in the form of Schedule 1.1(a) hereto.




     (j) Organizational Structure. The corporate or limited partnership and capital and
ownership structure of the Credit Parties shall be as described on Schedule 3.12. The
Agents shall be satisfied with the management structure, legal structure, voting control,
liquidity, total leverage and total capitalization of the Credit Parties.




     (k) Government Consent. The Administrative Agent shall have received evidence that
all governmental, shareholder and material third party consents and approvals necessary in
connection with the financings and other transactions contemplated hereby have been obtained and
all applicable waiting periods have expired without any action being taken by any Governmental
Authority that could restrain, prevent or impose any material adverse conditions on such
transactions or that could seek or threaten any of the foregoing.




     (l) Compliance with Laws. The financings and other transactions contemplated hereby
shall be in compliance with all Requirements of Law.




     (m) Bankruptcy. There shall be no bankruptcy or insolvency proceedings with respect
to Credit Parties or any of their Subsidiaries.




     (n) Existing Indebtedness of the Credit Parties. All of the existing Indebtedness for
borrowed money of the Credit Parties (other than Indebtedness permitted to exist pursuant to
Section 6.1) shall be repaid in full and all security interests related thereto shall be terminated
on the Closing Date.




     (o) Financial Statements. The Administrative Agent and the Lenders shall have
received copies of the financial statements referred to in Section 3.1 hereof, each in form and
substance satisfactory to it.




     (p) No Material Adverse Change. Since November 1, 2003, there has been no material
adverse change in the business, properties, prospects, operations or condition



66









 







(financial or
otherwise) of the Borrower or of the Credit Parties and their Subsidiaries, taken as a whole, and
there shall not have occurred any material disruption or material adverse change in the financial,
banking or capital markets (including the loan syndication market) that has impaired or would
impair the Arrangers’ ability to syndicate the facilities.




     (q) Financial Condition Certificate. The Administrative Agent shall have received a
certificate or certificates executed by a Responsible Officer of the Borrower as of the Closing
Date stating that (i) no action, suit, investigation or proceeding is pending, ongoing or, to the
knowledge of any Credit Party, threatened in any court or before any other Governmental Authority
that purports to affect any Credit Party or any other transaction contemplated by the Credit
Documents, which action, suit, investigation or proceeding the Borrower has reasonably concluded
could be expected to have a Material Adverse Effect and (ii) immediately after giving effect to
this Credit Agreement, the other Credit Documents, and all the transactions contemplated therein
to occur on such date, (A) no Default or Event of Default exists, (B) all representations and
warranties contained herein and in the other Credit Documents are true and correct in all material
respects, and (C) the Credit Parties are in compliance with each of the financial covenants set
forth in Section 5.9 (as demonstrated through detailed calculations of such financial covenants on
an exhibit to such certificate).




     (r) Leverage Ratio. The Administrative Agent shall have received evidence that the
Leverage Ratio of the Credit Parties and their Subsidiaries on a Consolidated basis is not greater
than 3.00 to 1.0, calculated on a pro forma basis giving effect to the initial Extensions of Credit
and the transactions to occur on the Closing Date, as of the most recently ended twelve month
period as of the last day of the month immediately preceding the Closing Date.




     (s) Consolidated EBITDA. The Administrative Agent shall have received evidence
reasonably satisfactory thereto provided by the Borrower that Consolidated EBITDA is not less than
$80,000,000, calculated on a pro forma basis giving effect to the initial Extensions of Credit and
the transactions to occur on the Closing Date, for the twelve month period ending as of the last
day of the month most recently preceding the Closing Date for which such statements are available.




     (t) Due Diligence. The Administrative Agent shall have completed its legal and
environmental due diligence of the Borrower and its Subsidiaries with the scope, content and
results of such due diligence to be satisfactory to the Administrative Agent in its sole
discretion.




     (u) Patriot Act Certificate. The Administrative Agent shall have received, at least
five (5) Business Days prior to the Closing Date, a certificate satisfactory thereto, for benefit
of itself and the Lenders, provided by the Borrower that sets forth information required by the
Patriot Act, including, without limitation, the identity of the Credit Parties, the name and
address of the Credit Parties and other information that will allow



67









 







the Administrative Agent or any
Lender, as applicable, to identify the Credit Parties in accordance with the Patriot Act.




     (v) Credit Rating. The Borrower shall have obtained a senior secured credit rating on
the Facilities from each of Moody’s and S&P.




     (w) Additional Matters. All other documents and legal matters in connection with the
transactions contemplated by this Credit Agreement shall be reasonably satisfactory in form and
substance to the Administrative Agent and its counsel.



     Section 4.2 Conditions to All Extensions of Credit.



     The obligation of each Lender to make any Extension of Credit hereunder is subject to the
satisfaction of the following conditions precedent on the date of making such Extension of Credit:




     (a) Representations and Warranties. The representations and warranties made by the
Credit Parties herein, in the Security Documents or which are contained in any certificate
furnished at any time under or in connection herewith (i) that contain a materiality qualification
shall be true and correct on and as of the date of such Extension of Credit as if made on and as of
such date (except to the extent such representations and warranties expressly relate to another
date in which case such representations and warranties shall be true and correct as of such date)
and (ii) that do not contain a materiality qualification shall be true and correct in all material
respects on and as of the date of such Extension of Credit as if made on and as of such date
(except for those that expressly related to an earlier date).




     (b) No Default or Event of Default. No Default or Event of Default shall have
occurred and be continuing on such date or after giving effect to the Extension of Credit to be
made on such date unless such Default or Event of Default shall have been waived in accordance with
this Credit Agreement.




     (c) Compliance with Commitments. Immediately after giving effect to the making of any
such Extension of Credit (and the application of the proceeds thereof), (i) the sum of outstanding
Revolving Loans plus outstanding Swingline Loans plus LOC Obligations shall not
exceed the Revolving Committed Amount, (ii) the LOC Obligations shall not exceed the LOC Committed
Amount and (iii) the Swingline Loans shall not exceed the Swingline Committed Amount.




     (d) Additional Conditions to Revolving Loans. If a Revolving Loan is requested, all
conditions set forth in Section 2.1 shall have been satisfied.




     (e) Additional Conditions to Letters of Credit. If the issuance of a Letter of Credit
is requested, all conditions set forth in Section 2.3 shall have been satisfied.



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     (f) Additional Conditions to Swingline Loans. If a Swingline Loan is
requested, all conditions set forth in Section 2.4 shall have been satisfied.




     (g)
Additional Conditions to Incremental Facility. If an Additional Loan is
requested, all conditions set forth in Section 2.5 shall have been satisfied.



     Each request for an Extension of Credit and each acceptance by the Borrower of any such
Extension of Credit shall be deemed to constitute representations and warranties by the Credit
Parties as of the date of such Extension of Credit that the conditions set forth above in
paragraphs (a) through (c) and in paragraph (d), (e), (f) or (g), as applicable, have been
satisfied.



     Section 4.3 Conditions to Funding of Tranche B Term Loan.



     The obligation of each Term Loan Lender to make its Tranche B Term Loan Commitment Percentage
of the Tranche B Term Loan Committed Amount available to the Borrower is subject to the
satisfaction of the following conditions precedent:




     (a) Financial Condition Certificate. The Administrative Agent shall have received a
certificate or certificates executed by a Responsible Officer of the Borrower as of the Tranche B
Term Loan Funding Date stating that (i) no Default or Event of Default exists and (ii) all
representations and warranties made by the Credit Parties herein, in the Security Documents or
which are contained in any certificate furnished at any time under or in connection herewith (i)
that contain a materiality qualification shall be true and correct on and as of the Tranche B Term
Loan Funding Date as if made on and as of such date (except to the extent such representations and
warranties expressly relate to another date in which case such representations and warranties shall
be true and correct as of such date) and (ii) that do not contain a materiality qualification shall
be true and correct in all material respects on and as of the Tranche B Term Loan Funding Date as
if made on and as of such date (except for those that expressly related to an earlier date).




     (b) Notice of Borrowing. The Administrative Agent shall have received a Notice of
Borrowing requesting that the Tranche B Term Loan be funded at least three (3) Business Days prior
to the proposed Tranche B Term Loan Funding Date.




     (c) Repayment of Senior Subordinated Notes. The Administrative Agent shall have
received evidence that all Indebtedness and other obligations of the Credit Parties and their
Subsidiaries under the Senior Subordinated Notes have been, or concurrently with the Tranche B Term
Loan Funding Date are being terminated and are being paid or satisfied in full (it being understood
that the irrevocable deposit of money sufficient to pay the redemption price of and accrued
interest on all Senior Subordinated Notes with the trustee or with the paying agent on the Tranche
B Term Loan Funding Date shall be sufficient evidence for this clause (c)).




     (d) Ticking Fee. The Administrative Agent shall have received the Ticking Fee owing
pursuant to Section 2.6(e).



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     (e) Tranche B Term Notes. The Administrative Agent shall have received for the
account of each Lender with a Tranche B Term Loan Commitment that has requested a promissory note
at least two (2) Business Days prior to the Tranche B Term Loan Funding Date, a Tranche B Term
Note.




     (f) Solvency Certificate. The Administrative Agent shall have received an officer’s
certificate from the chief financial officer of the Borrower as to the financial condition,
solvency and related matters of each Credit Party after giving effect to the current borrowings
under the Credit Documents, the funding of the Tranche B Term Loan and the other transactions
contemplated hereby, in substantially the form of Schedule 4.1(h) hereto.



ARTICLE V




AFFIRMATIVE COVENANTS



     Each Credit Party hereby covenants and agrees that on the Closing Date, and thereafter for so
long as this Credit Agreement is in effect and until the Commitments have terminated, no Note
remains outstanding and unpaid and the Credit Party Obligations, together with interest, Commitment
Fees and all other amounts owing to the Administrative Agent or any Lender hereunder, are paid in
full, such Credit Party shall, and shall cause each of its Subsidiaries, to:



     Section 5.1 Financial Statements.



     Furnish to the Administrative Agent for distribution to the Lenders:




     (a) Annual Financial Statements. As soon as available, and in any event no later than
the earlier of (i) the date the Borrower is required by the SEC to deliver its Form 10-K for any
fiscal year of the Borrower and (ii) ninety (90) days after 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 fiscal year and the related Consolidated statements of income
and retained earnings and of cash flows of the Borrower and its Consolidated Subsidiaries for such
year, audited by a firm of independent certified public accountants reasonably acceptable to the
Administrative Agent, setting forth in each case in comparative form the figures for the preceding
fiscal year, reported on without a “going concern” or like qualification or exception, or
qualification indicating that the scope of the audit was inadequate to permit such independent
certified public accountants to certify such financial statements without such qualification; and




     (b)
Quarterly Financial Statements. As soon as available, and in any event no later
than the earlier of (i) the date the Borrower is required by the SEC to deliver its Form 10-Q for
any fiscal quarter of the Borrower and (ii) forty-five (45) days after the end of each of the
fiscal quarters of the Borrower, a company-prepared Consolidated balance sheet of the Borrower and
its consolidated Subsidiaries as at the end of such



70









 







period and related company-prepared
Consolidated statements of income and retained earnings and of cash flows for the Borrower and its
consolidated Subsidiaries for such quarterly period and for the portion of the fiscal year ending
with such period, in each case setting forth in comparative form the figures for the corresponding
period or periods of the preceding fiscal year (subject to normal recurring year-end audit
adjustments).



     All such financial statements shall fairly present, in all material respects, the financial
condition and results from operations of the entities for the periods specified, be prepared in
reasonable detail and in accordance with GAAP (subject, in the case of interim statements, to
normal recurring year-end audit adjustments) applied consistently throughout the periods reflected
therein and be accompanied by a description of, and an estimation of the effect on the financial
statements on account of, a change in the application of accounting principles as provided in
Section 1.3.



     Section 5.2 Certificates; Other Information.



     Furnish to the Administrative Agent for distribution to the Lenders:




     (a) concurrently with the delivery of the financial statements referred to in Section 5.1(a)
above, a certificate of the independent certified public accountants reporting on such financial
statements stating that in making the examination necessary therefor no knowledge was obtained of
any Default or Event of Default, except as specified in such certificate;




     (b) concurrently with the delivery of the financial statements referred to in Sections 5.1(a)
and 5.1(b) above, a certificate of a Responsible Officer substantially in the form of Schedule
5.2(b) (each, a “Compliance Certificate”) stating that (i) such financial statements
present fairly the financial position of the Borrower and its Consolidated Subsidiaries for the
periods indicated in conformity with GAAP applied on a consistent basis, (ii) each of the Credit
Parties during such period observed or performed in all material respects all of its covenants and
other agreements, and satisfied in all material respects every condition, contained in this Credit
Agreement to be observed, performed or satisfied by it, and (iii) such Responsible Officer has
obtained no knowledge of any Default or Event of Default except as specified in such certificate,
and including calculations in reasonable detail required to determine the current Applicable
Percentages and to indicate compliance with Section 5.9 as of the last day of such period;




     (c) within thirty (30) days after the same are sent, copies of all reports (other than those
otherwise provided pursuant to Section 5.1 and those which are of a promotional nature) and other
financial information which the Borrower sends to its shareholders;




     (d) within ninety (90) days after the end of each fiscal year of the Borrower, a certificate
containing information regarding (i) the calculation of Excess Cash Flow and (ii) the amount of all
Asset Dispositions, Debt Issuances, and Equity Issuances that were



71









 







made during the prior fiscal
year and amounts received in connection with any Recovery Event during the prior fiscal year;




     (e) promptly upon receipt thereof, a copy or summary of any other report, or “management
letter” submitted or presented by independent accountants to the Borrower or any of its
Subsidiaries in connection with any annual, interim or special audit of the books of such Person;




     (f) promptly upon their becoming available, copies of (i) all press releases and other
statements made available generally by the Credit Parties to the public concerning material
developments in the business of the Credit Parties and their Subsidiaries and (ii) any non-routine
correspondence or official notices received by the Credit Parties or any of their Subsidiaries from
any Governmental Authority which regulates the operations of the Credit Parties and their
Subsidiaries;




     (g) promptly, such additional financial and other information as the Administrative Agent, on
behalf of any Lender, may from time to time reasonably request;




     (h) concurrently with the delivery of the financial statements referred to in Section 5.1(b)
above, the Borrower shall provide to the Administrative Agent a supplement to Schedule 3.16 setting
forth a complete and correct list of all Intellectual Property owned by or licensed to the Credit
Parties or any of their Subsidiaries that (i) is not set forth in Schedule 3.16, or (ii) has not
been set forth in any supplement to Schedule 3.16 previously furnished by the Borrower to the
Administrative Agent pursuant to this Section 5.2(h).




Documents required to be delivered pursuant to Section 5.1(a) or Section 5.1(b) may be
delivered electronically and if so delivered, shall be deemed to have been delivered on the date
received by the Administrative Agent by electronic mail with all relevant attachments. The
Administrative Agent may post such documents on the Borrower’s behalf on IntraLinks/IntraAgency or
another relevant website, if any, to which each Lender and the Administrative Agent have access
(whether a commercial, third-party website or whether sponsored by the Administrative Agent);
provided that the Borrower shall deliver paper copies of such documents to the
Administrative Agent upon its request until a written request to cease delivering paper copies is
given by the Administrative Agent. Notwithstanding anything contained herein, (A) the Borrower
shall be entitled to deliver the Compliance Certificate required by Section 5.2(b) by
electronic mail and if so delivered shall be deemed to have been delivered on the date received by
the Administrative Agent by electronic mail with all relevant attachments, and (B) whether or not
delivery of any Compliance Certificate required by Section 5.2(b) is effected pursuant to
the preceding clause (A), the Borrower shall be required to provide paper copies of the Compliance
Certificates required by Section 5.2(b) to the Administrative Agent.



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     Section 5.3 Payment of Taxes and Other Obligations.



     Pay, discharge or otherwise satisfy at or before maturity or before they become delinquent, as
the case may be, in accordance with industry practice (subject, where applicable, to specified
grace periods) all its taxes (Federal, state, local and any other taxes) and other obligations and
liabilities of whatever nature and any additional costs that are imposed as a result of any failure
to so pay, discharge or otherwise satisfy such taxes, obligations and liabilities, except when the
amount or validity of any such taxes, obligations and liabilities is currently being contested in
good faith by appropriate proceedings and reserves, if applicable, in conformity with GAAP with
respect thereto have been provided on the books of the Credit Parties.



     Section 5.4 Conduct of Business and Maintenance of Existence.



     Continue to engage in business of the same general type as now conducted by it on the Closing
Date and preserve, renew and keep in full force and effect its existence and good standing; take
all reasonable action to maintain all rights, privileges and franchises necessary or
desirable in the normal conduct of its business and to maintain its goodwill; comply with all
Contractual Obligations and Requirements of Law applicable to it except to the extent that failure
to comply therewith could not, in the aggregate, reasonably be expected to have a Material Adverse
Effect.



     Section 5.5 Maintenance of Property; Insurance.




     (a) Keep all material property useful and necessary in its business in good working order and
condition (ordinary wear and tear, damage by casualty and obsolescence excepted).




     (b) Maintain with financially sound and reputable insurance companies insurance on all its
property (including without limitation its tangible Collateral) in at least such amounts (after
giving effect to any self-insurance compatible with the following requirements) and against at
least such risks as are usually insured against in the same geographical area by companies engaged
in the same or a similar business; and furnish to the Administrative Agent, upon written request,
full information as to the insurance carried. The Administrative Agent shall be named as lender
loss payee or mortgagee, as its interest may appear, and the Administrative Agent shall be named as
an additional insured with respect to any such insurance providing coverage in respect of any
Collateral, and each provider of any such insurance shall agree, by endorsement upon the policy or
policies issued by it or by independent instruments furnished to the Administrative Agent, that it
will give the Administrative Agent thirty (30) days prior written notice before any such policy or
policies shall be altered or canceled, and that no act or default of any Credit Party or any other
Person shall affect the rights of the Administrative Agent or the Lenders under such policy or
policies.




     (c) In case of any material loss, damage to or destruction of the Collateral of any Credit
Party or any material part thereof, such Credit Party shall promptly give written



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notice thereof to
the Administrative Agent generally describing the nature and extent of such damage or destruction.
In case of any material loss, damage to or destruction of the Collateral of any Credit Party or any
material part thereof, such Credit Party, whether or not the insurance proceeds, if any, received
on account of such damage or destruction shall be sufficient for that purpose, at such Credit
Party’s cost and expense, will promptly repair or replace the Collateral of such Credit Party so
lost, damaged or destroyed unless such Credit Party shall have reasonably determined that such
repair or replacement of the affected Collateral is not economically feasible or is not deemed in
the best business interest of such Credit Party.



     Section 5.6 Inspection of Property; Books and Records; Discussions.



     Keep proper books of records and account in which full, true and correct entries in conformity
with GAAP and all Requirements of Law shall be made of all dealings and transactions in relation to
its businesses and activities; and permit, during regular business hours and upon reasonable notice
by the Administrative Agent or any Lender (provided, no such prior notice shall be required
following the occurrence and during the continuance of any Default or Event of Default), the
Administrative Agent or any Lender to visit and inspect any of its properties and examine and make
abstracts from any of its books and records at any reasonable time, and as often as may reasonably
be desired, and to discuss the business, operations, properties and financial and other condition
of the Credit Parties with officers and employees of
the Credit Parties and with their independent certified public accountants; provided,
however, that other than inspections conducted during the existence and continuance of an
Event of Default, no more than two such inspections may be conducted during any fiscal year.



     Section 5.7 Notices.



     Immediately after any Credit Party obtains actual knowledge thereof, give written notice to
the Administrative Agent (which shall transmit such notice to each Lender as soon as practicable)
of the occurrence of any Default or Event of Default, and promptly (but in no event later than two
(2) Business Days after any Credit Party obtains actual knowledge thereof) give written notice of
the following to the Administrative Agent (which shall transmit such notice to each Lender as soon
as practicable):




     (a) the occurrence of any default or event of default under any Contractual Obligation of any
of the Credit Parties which could reasonably be expected to have a Material Adverse Effect;




     (b) any litigation, or any investigation or proceeding affecting any of the Credit Parties
which, if adversely determined, could reasonably be expected to have a Material Adverse Effect;




     (c) (i) the occurrence or expected occurrence of any Reportable Event with respect to any
Plan, a failure to make any required contribution to a Plan, the creation of any Lien in favor of
the PBGC (other than a Permitted Lien) or a Plan or any withdrawal from, or the termination,
Reorganization or Insolvency of, any Multiemployer Plan or (ii)



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the institution of proceedings or
the taking of any other action by the PBGC or any Credit Party or any Commonly Controlled Entity or
any Multiemployer Plan with respect to the withdrawal from, or the terminating, Reorganization or
Insolvency of, any Plan;




     (d) any notice of any violation received by any Credit Party from any Governmental Authority
including, without limitation, any notice of violation of Environmental Laws, which violation could
reasonably be expected to have a Material Adverse Effect;




     (e) any labor controversy that has resulted in, or threatens to result in, a strike or other
work action against any Credit Party which could reasonably be expected to have a Material Adverse
Effect;




     (f) any attachment, judgment, lien, levy or order exceeding $5,000,000 that may be assessed
against or threatened against any Credit Party other than Permitted Liens; and




     (g) any other development or event which could 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 setting forth details of the occurrence referred to therein and stating what action the
Borrower proposes to take with respect thereto. In the case of any notice of a Default or Event of
Default, the Borrower shall specify that such notice is a Default or Event of Default notice on the
face thereof.



     Section 5.8 Environmental Laws.




     (a) Comply in all material respects with all applicable Environmental Laws and obtain and
comply in all material respects with and maintain any and all licenses, approvals, notifications,
registrations or permits required by applicable Environmental Laws.




     (b) Conduct and complete all investigations, studies, sampling and testing, and all remedial,
removal and other actions required under Environmental Laws and promptly comply in all material
respects with all lawful orders and directives of all Governmental Authorities regarding
Environmental Laws except to the extent that the same are being contested in good faith by
appropriate proceedings and the pendency of such proceedings could not reasonably be expected to
have a Material Adverse Effect.




     (c) Defend, indemnify and hold harmless the Administrative Agent and the Lenders, and their
respective employees, agents, officers and directors, from and against any and all claims, demands,
penalties, fines, liabilities, settlements, damages, costs and expenses of whatever kind or nature
known or unknown, contingent or otherwise, arising out of, or in any way relating to the violation
of, noncompliance with or liability under, any Environmental Law applicable to the operations of
the Credit Parties or any of their



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properties, or any orders, requirements or demands of
Governmental Authorities related thereto, including, without limitation, reasonable attorney’s and
consultant’s fees, investigation and laboratory fees, response costs, court costs and litigation
expenses, except to the extent that any of the foregoing arise out of the gross negligence or
willful misconduct of the party seeking indemnification therefor. The agreements in this paragraph
shall survive repayment of the Notes and all other amounts payable hereunder.



     Section 5.9 Financial Covenants.



     Commencing on the day immediately following the Closing Date, the Borrower shall , on a
Consolidated basis, comply with the following financial covenants:




     (a) Leverage Ratio. At all times, the Leverage Ratio shall be less than or equal to
4.0 to 1.0.




     (b) Senior Leverage Ratio. At all times, the Senior Leverage Ratio during the
following periods shall be less than or equal to:



	 	 	 	 	 
	Period	 	Maximum Ratio
	Closing Date through April 30, 2005
	 	 	3.50 to 1.0	 
	May 1, 2005 through April 30, 2007
	 	 	3.25 to 1.0	 
	May 1, 2007 through April 30, 2008
	 	 	3.00 to 1.0	 
	May 1, 2008 and thereafter
	 	 	2.75 to 1.0	 







     (c) Interest Coverage Ratio. At all times, the Interest Coverage Ratio during the
following periods shall be greater than or equal to:



	 	 	 	 	 
	Period	 	Minimum Ratio
	Closing Date through April 30, 2005
	 	 	3.50 to 1.0	 
	May 1, 2005 through April 30, 2007
	 	 	4.00 to 1.0	 
	May 1, 2007 through April 30, 2008
	 	 	4.50 to 1.0	 
	May 1, 2008 and thereafter
	 	 	5.00 to 1.0	 







     (d) Consolidated Capital Expenditures. Consolidated Capital Expenditures made during
the following period shall be less than or equal to:



	 	 	 	 	 
	 	 	Maximum Consolidated
	Period	 	Capital Expenditures
	Fiscal Year 2004
	 	$	30,000,000	 
	Fiscal Year 2005
	 	$	30,000,000	 
	Fiscal Year 2006
	 	$	30,000,000	 
	Fiscal Year 2007
	 	$	30,000,000	 
	Fiscal Year 2008
	 	$	30,000,000	 
	Fiscal Year 2009
	 	$	30,000,000	 
	Fiscal Year 2010
	 	$	30,000,000	 






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     The maximum amount of Consolidated Capital
Expenditures permitted may be increased in any
fiscal year by carrying forward any unused
amount (up to $10,000,000) in the immediately
preceding fiscal year; provided that with
respect to any fiscal year, Consolidated
Capital Expenditures made during any such
fiscal year shall be deemed to be made first
with respect to the applicable limitation for
such fiscal year and then with respect to any
carry forward amount to the extent applicable.



     Section 5.10 Additional Guarantors.



     The Credit Parties will cause each of their Domestic Subsidiaries that is not an Immaterial
Subsidiary, whether newly formed, after acquired or otherwise existing, to promptly (and in any
event within thirty (30) days after such Domestic Subsidiary is formed or acquired (or such longer
period of time as agreed to by the Administrative Agent in its reasonable discretion)) become a
Guarantor hereunder by way of execution of a Joinder Agreement; provided that the aggregate
asset value of all Immaterial Subsidiaries at any time that are not Guarantors shall not exceed
$5,000,000. In connection therewith, the Credit Parties shall give notice to the Administrative
Agent not less than fifteen (15) days prior to creating a Domestic Subsidiary, or acquiring the
Capital Stock of any other Person. The Credit Party Obligations shall be secured by, among other
things, a first priority perfected security interest in the Collateral of such new Guarantor and a
pledge of 100% of the Capital Stock of such new Guarantor and its Domestic Subsidiaries and 65% (or
such higher percentage that would not result in material adverse tax consequences for such new
Guarantor) of the voting Capital Stock and 100% of the non-voting Capital Stock of its first-tier
Foreign Subsidiaries (other than Building Systems de Mexico, S.A. de C.V. to the extent it is not a
wholly-owned Subsidiary of the Credit Parties). In connection with the foregoing, the Credit
Parties shall deliver to the Administrative Agent, with respect to each new Guarantor to the extent
applicable, substantially the same documentation required pursuant to Sections 4.1(b)-(e) and 5.12
and such other documents or agreements as the Administrative Agent may reasonably request.



     Section 5.11 Compliance with Law.



     Each Credit Party will, and will cause each of its Subsidiaries to, comply with all laws,
rules, regulations and orders, and all applicable restrictions imposed by all Governmental
Authorities, applicable to it and its property if noncompliance with any such law, rule,
regulation, order or restriction could reasonably be expected to have a Material Adverse Effect.



     Section 5.12 Pledged Assets.




     (a) Each Credit Party will cause 100% of the Capital Stock in each of its direct or indirect
Domestic Subsidiaries and 65% of the Capital Stock in each of its Foreign Subsidiaries (other than
Building Systems de Mexico, S.A. de C.V. to the extent it is not a wholly-owned Subsidiary of the
Credit Parties) to be subject at all times to a first priority, perfected Lien in favor of the
Administrative Agent pursuant to the terms and conditions of the Security Documents or such other
security documents as the Administrative Agent shall reasonably request.



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     (b) If, subsequent to the Closing Date, a Credit Party shall acquire any securities,
instruments, chattel paper or other personal property required for perfection to be delivered to
the Administrative Agent as Collateral hereunder or under any of the Security Documents, the
Borrower shall promptly (and in any event within three (3) Business Days) after any Responsible
Officer of a Credit Party acquires knowledge of same notify the Administrative Agent of same. Each
Credit Party shall, and shall cause each of its Subsidiaries to, take such action at its own
expense as requested by the Administrative Agent (including, without limitation, any of the actions
described in Section 4.1(d) hereof) to ensure that the Administrative Agent has a first priority
perfected Lien (subject to Permitted Liens) to secure the Credit Party Obligations in (i) all
personal property of the Credit Parties located in the United States and (ii) to the extent deemed
to be material by the Administrative Agent or the Required Lenders in its or their sole reasonable
discretion, all other personal property of the Credit Parties. Each Credit Party shall, and shall
cause each of its Subsidiaries to, adhere to the covenants regarding the location of personal
property as set forth in the Security Documents.



     Section 5.13 Covenants Regarding Patents, Trademarks and Copyrights.




     (a) The Borrower shall notify the Administrative Agent promptly if it knows or has reason to
know that any material application, material letters patent or registration relating to any
material Patent, material Patent License, material Trademark or material Trademark License of the
Credit Parties or any of their Subsidiaries may become abandoned, or of any adverse determination
or development (including, without limitation, the institution of, or any such determination or
development in, any proceeding in the United States Patent and Trademark Office or any court)
regarding the Borrower’s or any of its Subsidiary’s ownership of any material Patent or material
Trademark, its right to patent or register the same, or to enforce, keep and maintain the same, or
its rights under any material Patent License or material Trademark License.




     (b) The Borrower shall notify the Administrative Agent promptly after it knows or has reason
to know of any adverse determination or development (including, without limitation,
the institution of, or any such determination or development in, any proceeding in any court)
regarding any material Copyright or material Copyright License of the Credit Parties or any of
their Subsidiaries, whether (i) such material Copyright or material Copyright License may become
invalid or unenforceable prior to its expiration or termination, or (ii) the Borrower’s or any of
its Subsidiary’s ownership of such material Copyright, its right to register the same or to
enforce, keep and maintain the same, or its rights under such material Copyright License, may
become affected.




     (c) (i) The Borrower shall promptly notify the Administrative Agent of any filing by any
Credit Party or any of its Subsidiaries, either itself or through any agent, employee, licensee or
designee (but in no event later than the fifteenth day following such filing), of any application
for registration of any material Intellectual Property with the United States Copyright Office or
United States Patent and Trademark Office or any similar office or agency in any other country or
any political subdivision thereof.



78









 






     (ii) Upon request of the Administrative Agent, the Borrower shall execute and
deliver any and all agreements, instruments, documents, and papers as the Administrative
Agent may reasonably request to evident the Administrative Agent’s security interest in the
Intellectual Property and the general intangibles referred to in clauses (i) and (ii),
including, without limitation, the goodwill of the Borrower or its Subsidiaries relating
thereto or represented thereby (or such other Intellectual Property or the general
intangibles relating thereto or represented thereby as the Administrative Agent may
reasonably request).




     (d) The Credit Parties and their Subsidiaries will take all necessary actions, including,
without limitation, in any proceeding before the United States Patent and Trademark Office or the
United States Copyright Office, to maintain each item of Intellectual Property of the Borrower and
its Subsidiaries, including, without limitation, payment of maintenance fees, filing of
applications for renewal, affidavits of use, affidavits of incontestability and opposition,
interference and cancellation proceedings unless the Borrower or the relevant Subsidiary, as the
case may be, shall reasonably determine that such Intellectual Property is not material to the
business of the Credit Parties and their Subsidiaries taken as a whole.




     (e) In the event that any Credit Party becomes aware that any Intellectual Property is
infringed, misappropriated or diluted by a third party in any material respect, the Borrower shall
notify the Administrative Agent promptly after it learns thereof and shall, unless the Borrower or
the relevant Subsidiary, as the case may be, shall reasonably determine that such Intellectual
Property is not material to the business of the Credit Parties and their Subsidiaries taken as a
whole, promptly sue for infringement, misappropriation or dilution and to recover any and all
damages for such infringement, misappropriation or dilution or take such other actions as the
Borrower or such Subsidiary, as the case may be, shall reasonably deem appropriate under the
circumstances to protect such Intellectual Property.



     Section 5.14 Further Assurances.



     (a) Upon the request of the Administrative Agent, promptly perform or cause to be performed
any and all acts and execute or cause to be executed any and all documents for filing
under the provisions of the Uniform Commercial Code or any other Requirement of Law which are
necessary or advisable to maintain in favor of the Administrative Agent, for the benefit of the
Lenders, Liens on the Collateral that are duly perfected in accordance with the requirements of, or
the obligations of the Credit Parties under, the Credit Documents and all applicable Requirements
of Law.



     (b) Within sixty (60) days following the Closing Date (as such time may be extended at the
discretion of the Administrative Agent), the Administrative Agent shall have received in the case
of any personal property Collateral located at premises leased by a Credit Party, such estoppel
letters, consents and waivers from the landlords of such real property that the Borrower is able to
obtain by using its commercially reasonable efforts.



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ARTICLE VI




NEGATIVE COVENANTS



     Each Credit Party hereby covenants and agrees that on the Closing Date, and thereafter for so
long as this Credit Agreement is in effect and until the Commitments have terminated, no Note
remains outstanding and unpaid and the Credit Party Obligations, together with interest, Commitment
Fees and all other amounts owing to the Administrative Agent or any Lender hereunder, are paid in
full, such Credit Party shall not, nor shall it permit any of its Subsidiaries, to, directly or
indirectly:



     Section 6.1 Indebtedness.



     Contract, create, incur, assume or permit to exist any Indebtedness, except:




     (a) Indebtedness arising or existing under this Credit Agreement and the other Credit
Documents;




     (b) Indebtedness existing as of the Closing Date as referenced in the financial statements
referenced in Section 3.1(a) (and set out more specifically in Schedule 6.1(b)) hereto and
renewals, refinancings or extensions thereof in a principal amount not in excess of that
outstanding as of the date of such renewal, refinancing or extension;




     (c) Indebtedness incurred or acquired after the Closing Date consisting of Capital Leases or
Indebtedness incurred to provide all or a portion of the purchase price or cost of construction of
an asset; provided that (i) such Indebtedness when incurred shall not exceed the purchase
price or cost of construction of such asset; (ii) no such Indebtedness shall be refinanced for a
principal amount in excess of the principal balance outstanding thereon at the time of such
refinancing; and (iii) the total amount of all such Indebtedness shall not exceed $25,000,000 at
any time outstanding;




     (d) Indebtedness and obligations owing under Secured Hedging Agreements and other Hedging
Agreements entered into in order to manage existing or anticipated interest rate or exchange rate
risks and not for speculative purposes;




     (e) Indebtedness owed from a Credit Party to another Credit Party;




     (f) Indebtedness constituting Subordinated Debt;




     (g) other Indebtedness of Credit Parties which does not exceed $5,000,000 in the aggregate at
any time outstanding, and




     (h) so long as there exists no Default both immediately before and immediately after giving
effect to any such transaction, Indebtedness of a Person which becomes a Subsidiary after the date
hereof or Indebtedness of a Person that is assumed by the Borrower or any Subsidiary in connection
with a Permitted Acquisition, provided that



80









 







(i) such Indebtedness existed at the time such
Person became a Subsidiary or such Permitted Acquisition was consummated, as the case may be, and,
in either case, was not created in anticipation thereof, (ii) immediately after giving effect to
such Person’s becoming a Subsidiary or to the consummation of such Permitted Acquisition by the
Borrower no Default or Event of Default shall have occurred and be continuing, (iii) such
Indebtedness (to the extent secured) shall not exceed $15,000,000 at any time outstanding and (iv)
no more than $50,000,000 in the aggregate of such Indebtedness shall become due before the Tranche
B Term Loan Maturity Date.



     Section 6.2 Liens.



     Contract, create, incur, assume or permit to exist any Lien with respect to any of their
respective property or assets of any kind (whether real or personal, tangible or intangible),
whether now owned or hereafter acquired, except for Permitted Liens. Notwithstanding the
foregoing, if a Credit Party or any of its Subsidiaries shall grant a Lien on any of its assets in
violation of this Section 6.2, then it shall be deemed to have simultaneously granted an equal and
ratable Lien on any such assets in favor of the Administrative Agent for the benefit of the
Lenders.



     Section 6.3 Guaranty Obligations.



     Enter into or otherwise become or be liable in respect of any Guaranty Obligations (excluding
specifically therefrom endorsements in the ordinary course of business of negotiable instruments
for deposit or collection) other than (i) those in favor of the Lenders in connection herewith,
(ii) guaranties given by the Credit Parties or any of their Subsidiaries in favor of any Credit
Party or any such Subsidiary in connection with obligations not constituting Indebtedness including
real property leases and other contracts entered into in the ordinary course of business and (iii)
Guaranty Obligations by the Credit Parties permitted under Section 6.1 (except, as regards
Indebtedness under subsection (b) thereof, only if and to the extent such Indebtedness was
guaranteed on the Closing Date).



     Section 6.4 Nature of Business.



     Alter the character of their business in any material respect from that conducted as of the
Closing Date.



     Section 6.5 Consolidation, Merger, Sale or Purchase of Assets, etc.




     (a) Dissolve, liquidate or wind up its affairs, consolidate or merge with another Person, or
sell, transfer, lease or otherwise dispose of its property or assets or agree to do so at a future
time except the following, without duplication, shall be expressly permitted:




     (i) Specified Sales;



81









 






     (ii) the disposition of property or assets as a result of a Recovery Event to the
extent the Net Cash Proceeds therefrom are used to repay Loans pursuant to Section
2.8(b)(vi) or repair or replace damaged property or to purchase or otherwise acquire new
assets or property in accordance with the terms of Section 2.8(b)(vi);




     (iii) the sale, lease or transfer of property or assets from a Credit Party to another
Credit Party; provided that prior to or simultaneously with any such sale, lease or
transfer, all actions required by the Administrative Agent shall be taken to insure the
continued perfection and priority of the Administrative Agent’s Liens on such property and
assets;




     (iv) the lease of property or assets with a book value (at the time of any such lease)
not to exceed $25,000,000 in the aggregate over the term of this Agreement from a Credit
Party to a Subsidiary that is not a Guarantor; provided that such lease is (A) an
operating lease for fair market value and (B) the ownership rights in the property or assets
are retained by a Credit Party;




     (v) the consolidation, liquidation or merger of a Credit Party into another Credit
Party or any Subsidiary into a Credit Party; provided that (A) prior to or
simultaneously with any such consolidation, liquidation or merger, all actions required by
the Administrative Agent shall be taken to insure the continued perfection and priority of
the Administrative Agent’s Liens on the property and assets of each such Credit Party and
(B) if such consolidation, liquidation or merger involves the Borrower, the Borrower shall
be the surviving entity;




     (vi) the consolidation, liquidation or merger of a Subsidiary that is not a Credit
Party into another Subsidiary that is not a Credit Party;




     (vii) the termination of any Hedging Agreement permitted pursuant to Section 6.1; and




     (viii) other sales, leases or transfers of property or assets in an amount not to
exceed $5,000,000 annually;




provided, that, with respect to clauses (i), (ii) and (vi) above, at least 75% of the
consideration received therefor by such Credit Party shall be in the form of cash or Cash
Equivalents; provided further, that, as to any Collateral that is subject to a disposition
(other than by way of a lease) permitted under this Section 6.5 or under any other
provision of this Agreement or of any other Credit Document, the Borrower shall have the right to
obtain the release of such Collateral from the Liens securing the Credit Party Obligations
concurrently with the consummation of such disposition, at the Borrower’s sole cost and expense and
upon not less than twenty (20) Business Days’ prior written notice to the Administrative Agent; and
provided further, that, as to any Guarantor that ceases to be a Subsidiary as a result of
any transaction permitted under any provision of



82









 







this Agreement or any other Credit Document, the
Borrower (and such Guarantor) shall have the right to obtain the release of such Guarantor from its
obligations under the Guaranty and the release of the property and assets of such Guarantor
from the Liens securing the Credit Party Obligations, in each case at the Borrower’s (or such
Guarantor’s) sole cost and expense and upon not less than twenty (20) Business Days’ prior written
notice to the Administrative Agent; or




     (b) Purchase, lease or otherwise acquire (in a single transaction or a series of related
transactions) the property or assets of any Person (other than purchases or other acquisitions of
inventory, leases, materials, property and equipment in the ordinary course of business, except as
otherwise limited or prohibited herein), or enter into any transaction of merger or consolidation,
except for (i) Investments or acquisitions permitted pursuant to Section 6.6, (ii) Permitted
Acquisitions and (iii) the merger or consolidation of the Borrower or one of its Subsidiaries with
and into a Credit Party; provided that if the Borrower is a party thereto, the Borrower
will be the surviving corporation.



     Section 6.6 Advances, Investments and Loans.



     Lend money or extend credit or make advances to any Person, or purchase or acquire any stock,
obligations or securities of, or any other interest in, or make any capital contribution to, any
Person except for Permitted Investments.



     Section 6.7 Transactions with Affiliates.



     Enter into (a) any transaction or series of transactions, other than compensation arrangements
as set forth in clause (b) below, whether or not in the ordinary course of business, with any
officer, director, shareholder or Affiliate other than on terms and conditions substantially as
favorable as would be obtainable in a comparable arm’s-length transaction with a Person other than
an officer, director, shareholder or Affiliate, or (b) any compensation arrangement with any
officer or director other a compensation arrangement that is in the ordinary course of business and
consistent with historical past practices of compensation for officers and directors.



     Section 6.8 Ownership of Subsidiaries; Restrictions.



     Create, form or acquire any Subsidiaries, except for (a) Domestic Subsidiaries which are
joined as Additional Credit Parties in accordance with the terms hereof and (b) Immaterial
Subsidiaries, subject to the terms of Section 5.10. The Credit Parties will not sell, transfer,
pledge or otherwise dispose of any Capital Stock or other equity interests in any of its
Subsidiaries, nor will it permit any of its Subsidiaries to issue, sell, transfer, pledge or
otherwise dispose of any of their Capital Stock or other equity interests, except in a transaction
permitted by Section 6.5(a).



83









 





     Section 6.9 Fiscal Year; Organizational Documents; Subordinated Debt Documents.



     Change its fiscal year other than a change in its fiscal year approved by the Agents, which
approval will not be unreasonably conditioned, withheld or delayed. None of the Credit Parties
will amend, modify or change its articles of incorporation (or corporate charter or other similar
organizational document) or bylaws (or other similar document) or operating agreement in any
respect adverse to the Lenders without the prior written consent of the Required Lenders.
The Credit Parties will not, without the prior written consent of the Required Lenders, amend,
modify, waive or extend or permit the amendment, modification, waiver or extension of any term of
(i) the Senior Subordinated Notes in a manner that is adverse to the interests of the Lenders or
(ii) any other Subordinated Debt in a manner that is materially adverse to the interests of the
Lenders.



     Section 6.10 Limitation on Restricted Actions.



     Create or otherwise cause or suffer to exist or become effective any encumbrance or
restriction on the ability of any such Person to (a) pay dividends or make any other distributions
to any Credit Party on its Capital Stock or with respect to any other interest or participation in,
or measured by, its profits, (b) pay any Indebtedness or other obligation owed to any Credit Party,
(c) make loans or advances to any Credit Party, (d) sell, lease or transfer any of its properties
or assets to any Credit Party, or (e) act as a Guarantor and pledge its assets pursuant to the
Credit Documents or any renewals, refinancings, exchanges, refundings or extension thereof, except
(in respect of any of the matters referred to in clauses (a)-(d) above) for such encumbrances or
restrictions existing under or by reason of (i) this Credit Agreement and the other Credit
Documents, (ii) applicable law, (iii) any document or instrument governing Indebtedness incurred
pursuant to Section 6.1(c); provided that any such restriction contained therein relates
only to the asset or assets constructed or acquired in connection therewith, or (iv) any Permitted
Lien or any document or instrument governing any Permitted Lien; provided that any such
restriction contained therein relates only to the asset or assets subject to such Permitted Lien.



     Section 6.11 Restricted Payments.



     Declare, order, make or set apart any sum for or pay any Restricted Payment, except (a) to
make dividends payable solely in the same class of Capital Stock of such Person, (b) to make
dividends or other distributions payable to the Borrower or a Domestic Subsidiary, (c) the Borrower
may repurchase shares of its Capital Stock in respect of employee benefit plans and stock options
in an aggregate amount not to exceed $5,000,000 during any fiscal year, (d) so long as no Default
or Event of Default shall have occurred and be continuing or would result therefrom, the Borrower
may make regularly scheduled payments of interest in respect of the Senior Subordinated Notes, (e)
so long as no Default or Event of Default shall have occurred and be continuing or would result
therefrom, the Borrower may prepay the full amount of the Senior Subordinated Notes (and any
accrued and unpaid interest and prepayment premiums with respect thereto) on the Tranche B Term
Loan Funding Date, and (f) so long as no Default or Event of Default shall have occurred and be
continuing and the Borrower demonstrates pro forma compliance with the financial covenants set
forth in Section 5.9, the Borrower may repurchase



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shares of its Capital Stock and/or pay cash
dividends in an aggregate amount during the term of this Credit Agreement not to exceed $25,000,000
plus 25% of Consolidated Net Income since the Closing Date.



     Section 6.12 No Further Negative Pledges.



     Enter into, assume or become subject to any agreement prohibiting or otherwise restricting the
creation or assumption of any Lien upon its properties or assets, whether now owned or hereafter
acquired, or requiring the grant of any security for such obligation if security
is given for some other obligation, except (a) pursuant to this Credit Agreement and the other
Credit Documents and (b) pursuant to any document or instrument governing Indebtedness incurred
pursuant to Section 6.1(c); provided that any such restriction contained therein relates
only to the asset or assets constructed or acquired in connection therewith, and (c) in connection
with any Permitted Lien or any document or instrument governing any Permitted Lien;
provided that any such restriction contained therein relates only to the asset or assets
subject to such Permitted Lien.



ARTICLE VII




EVENTS OF DEFAULT



     Section 7.1 Events of Default.



     An Event of Default shall exist upon the occurrence of any of the following specified events
(each an “Event of Default”):




     (a) Payment Default. The Borrower shall fail to pay any principal on any Loan or Note
when due (whether at maturity, by reason of acceleration or otherwise) in accordance with the terms
thereof or hereof; or the Borrower shall fail to reimburse the Issuing Lender for any LOC
Obligations when due (whether at maturity, by reason of acceleration or otherwise) in accordance
with the terms hereof; or the Borrower shall fail to pay any interest on any Loan or Note or any
fee or other amount payable hereunder when due (whether at maturity, by reason of acceleration or
otherwise) in accordance with the terms thereof or hereof (or any Guarantor shall fail to pay on
the Guaranty in respect of any of the foregoing or in respect of any other Guaranty Obligations
thereunder) and such failure shall continue unremedied for three (3) Business Days.




     (b) Misrepresentation. Any representation or warranty made or deemed made herein, in
the Security Documents or in any of the other Credit Documents or which is contained in any
certificate, document or financial or other statement furnished at any time under or in connection
with this Credit Agreement shall prove to have been incorrect, false or misleading in any material
respect on or as of the date made or deemed made.



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     (c) Covenant Default. (i) Any Credit Party shall fail to perform, comply with or
observe any term, covenant or agreement applicable to it contained in Sections 5.1, 5.2, 5.4, 5.7,
5.9, 5.11 or Article VI hereof; or (ii) any Credit Party shall fail to comply with any other
covenant contained in this Credit Agreement or the other Credit Documents or any other agreement,
document or instrument among any Credit Party, the Administrative Agent and the Lenders or executed
by any Credit Party in favor of the Administrative Agent or the Lenders (other than as described in
Sections 7.1(a) or 7.1(c)(i) above), and such breach or failure to comply is not cured within
thirty (30) days of its occurrence.




     (d) Debt Cross-Default. Any Credit Party shall (i) default in any payment of
principal of or interest on any Indebtedness (other than the Loans, Reimbursement Obligations and
the Guaranty) in a principal amount outstanding of at least $2,500,000 for the Borrower and any of
its Subsidiaries in the aggregate beyond any applicable grace period (not to exceed 30 days), if
any, provided in the instrument or agreement under which such Indebtedness was
created; (ii) default in the observance or performance of any other agreement or condition
relating to any Indebtedness (other than the Loans, Reimbursement Obligations and the Guaranty) in
a principal amount outstanding of at least $2,500,000 in the aggregate beyond any applicable grace
period (not to exceed 30 days) for the Credit Parties and their Subsidiaries 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 Indebtedness (or
a trustee or agent on behalf of such holder or holders or beneficiary or beneficiaries) to cause,
with the giving of notice if required, such Indebtedness to become due prior to its stated
maturity; or (iii) breach or default any Secured Hedging Agreement beyond any applicable grace
period (not to exceed 30 days), if any, provided in the instrument or agreement under which such
Indebtedness was created.




     (e) Bankruptcy Default. (i) The Credit Parties or any of their Subsidiaries shall
commence any case, proceeding or other action as a debtor (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 have it
judged 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 Credit Parties or any of their
Subsidiaries shall make a general assignment for the benefit of its creditors; or (ii) there shall
be commenced against the any Credit Party 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; or (iii) there shall be commenced against any Credit Party or any of its
Subsidiaries 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



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vacated, discharged,
or stayed or bonded pending appeal within 60 days from the entry thereof; or (iv) the Credit
Parties or any of their Subsidiaries shall take any 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) the Credit Parties or any of their Subsidiaries shall generally not, or shall be
unable to, or shall admit in writing its inability to, pay its debts as they become due.




     (f) Judgment Default. One or more judgments, orders, decrees or arbitration awards
shall be entered against the Credit Parties or any of their Subsidiaries involving in the aggregate
a liability (to the extent not paid when due or covered by insurance) of $2,500,000 or more and all
such judgments, orders, decrees or arbitration awards shall not have been paid and satisfied,
vacated, discharged, stayed or bonded pending appeal within 30 days from the entry thereof.




     (g) ERISA Default. (i) 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 (other than a Permitted
Lien) shall arise on the assets of the Borrower, any of its Subsidiaries 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 Required Lenders, 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, (v) the Borrower, any of its Subsidiaries or any
Commonly Controlled Entity shall, or in the reasonable opinion of the Required Lenders is likely
to, incur any liability in connection with a withdrawal from, or the Insolvency or Reorganization
of, any Multiemployer Plan or (vi) any other similar 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 have a Material Adverse Effect.




     (h) Change of Control. A Change of Control shall have occurred.




     (i) Failure of Credit Documents. This Credit Agreement (including the Guaranty) or
any other Credit Document or any provision hereof or thereof shall cease to be in full force and
effect or to give the Administrative Agent and/or the Lenders the security interests, liens,
rights, powers and privileges purported to be created hereby or thereby, or any Credit Party or any
Person acting by or on behalf of any Credit Party shall deny or disaffirm such Person’s obligations
under this Credit Agreement or any other Credit Document.




     (j) Hedging Agreement. Any termination payment shall be due by a Credit Party under
any Hedging Agreement and such amount is not paid within the later to occur



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of five (5) Business
Days after the due date thereof or the expiration of grace periods, if any, in such Hedging
Agreement.




     (k) Subordinated Debt. Any default (which is not waived or cured within the
applicable period of grace) or event of default shall occur under any Subordinated Debt or the
subordination provisions contained therein shall cease to be in full force and effect or to give
the Lenders the rights, powers and privileges purported to be created thereby.



     Section 7.2 Acceleration; Remedies.



     Upon the occurrence and during the continuation of an Event of Default, then, and in any such
event, (a) if such event is a Bankruptcy Event, automatically the Commitments shall immediately
terminate and the Loans (with accrued interest thereon), and all other amounts under the Credit
Documents (including without limitation the maximum amount of all contingent liabilities under
Letters of Credit) shall immediately become due and payable, and the Borrower shall immediately pay
to the Administrative Agent cash collateral as security for the LOC Obligations for subsequent
drawings under then outstanding Letters of Credit in an amount equal to the maximum amount which
may be drawn under Letters of Credit then outstanding, and (b) if such event is any other Event of
Default, subject to the terms of Section 8.5, with the written consent of the Required Lenders, the
Administrative Agent may, or upon the written request of the Required Lenders, the Administrative
Agent shall, take any or all of the following actions: (i) by notice to the Borrower declare the
Commitments to be terminated forthwith, whereupon the Commitments shall immediately terminate; (ii)
by notice of default to the Borrower declare the Loans (with accrued interest thereon) and all
other amounts owing under this Credit
Agreement and the Notes to be due and payable forthwith and direct the Borrower to pay to the
Administrative Agent cash collateral as security for the LOC Obligations for subsequent drawings
under then outstanding Letters of Credit in an amount equal to the maximum amount of which may be
drawn under Letters of Credit then outstanding, whereupon the same shall immediately become due and
payable; and/or (iii) exercise on behalf of the Lenders all of its other rights and remedies under
this Credit Agreement, the other Credit Documents and applicable law. Except as expressly provided
above in this Section 7.2, presentment, demand, protest and all other notices of any kind are
hereby expressly waived by the Credit Parties.



ARTICLE VIII




THE ADMINISTRATIVE AGENT



     Section 8.1 Appointment.



     Each Lender hereby irrevocably designates and appoints Wachovia as the Administrative Agent of
such Lender under this Credit Agreement, and each such Lender irrevocably authorizes Wachovia, as
the Administrative Agent for such Lender, to take such action on its behalf under the provisions of
this Credit Agreement and to exercise such powers and perform such duties as are expressly
delegated to the Administrative Agent by the terms of this Credit Agreement, together with such
other powers as are reasonably incidental thereto. Notwithstanding any



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provision to the contrary
elsewhere in this Credit Agreement, the Administrative Agent shall not have any duties or
responsibilities, except 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 Credit Agreement or otherwise exist against the Administrative Agent.



     Section 8.2 Delegation of Duties.



     The Administrative Agent may execute any of its duties under this Credit Agreement by or
through agents or attorneys-in-fact and shall be entitled to advice of counsel concerning all
matters pertaining to such duties. The Administrative Agent shall not be responsible for the
negligence or misconduct of any agents or attorneys-in-fact selected by it with reasonable care.
Without limiting the foregoing, the Administrative Agent may appoint one of its affiliates as its
agent to perform the functions of the Administrative Agent hereunder relating to the advancing of
funds to the Borrower and distribution of funds to the Lenders and to perform such other related
functions of the Administrative Agent hereunder as are reasonably incidental to such functions.



     Section 8.3 Exculpatory Provisions.



     Neither the Administrative Agent nor any of its officers, directors, employees, agents,
attorneys-in-fact, Subsidiaries or affiliates shall be (a) liable for any action lawfully taken or
omitted to be taken by it or such Person under or in connection with this Credit Agreement (except
for its or such Person’s own gross negligence or willful misconduct) or (b) responsible in any
manner to any of the Lenders for any recitals, statements, representations or warranties made by
any Credit Party or any officer thereof contained in this Credit Agreement or in any
certificate, report, statement or other document referred to or provided for in, or received
by the Administrative Agent under or in connection with, this Credit Agreement or for the value,
validity, effectiveness, genuineness, enforceability or sufficiency of any of the Credit Documents
or for any failure of any Credit Party to perform its obligations hereunder or thereunder. The
Administrative Agent shall not be under any obligation to any Lender to ascertain or to inquire as
to the observance or performance by any Credit Party of any of the agreements contained in, or
conditions of, this Credit Agreement, or to inspect the properties, books or records of any Credit
Party.



     Section 8.4 Reliance by Administrative Agent.



     (a) The Administrative Agent shall be entitled to rely, and shall be fully protected in
relying, upon any note, writing, resolution, notice, consent, certificate, affidavit, letter,
cablegram, telegram, telecopy, telex or teletype message, statement, order or other document or
conversation believed by it in good faith 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,
without limitation, counsel to the Credit Parties), 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 an executed Commitment Transfer Supplement has




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been filed with the Administrative Agent pursuant to Section 9.6(c) with respect to the
Loans evidenced by such Note. The Administrative Agent shall be fully justified in failing
or refusing to take any action under this Credit Agreement unless it shall first receive
such advice or concurrence of the Required Lenders 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 any of the Credit Documents in accordance with a request of the Required
Lenders or all of the Lenders, as may be required under this Credit Agreement, 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 Notes.




     (b) For purposes of determining compliance with the conditions specified in
Section 4.1, each Lender that has signed this Credit Agreement shall be deemed to have
consented to, approved or accepted or to be satisfied with, each document or other matter
required thereunder to be consented to or approved by or acceptable or satisfactory to a
Lender.



     Section 8.5 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 Credit Agreement, describing such Default or Event of
Default and stating that such notice is a “notice of default”. In the event that 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 with respect to such
Default or Event of Default as shall be reasonably directed by the Required Lenders;
provided, however, 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 except to the extent that this Credit
Agreement expressly requires that such action be taken, or not taken, only with the consent or upon
the authorization of the Required Lenders, or all of the Lenders, as the case may be.



     Section 8.6 Non-Reliance on Administrative Agent and Other Lenders.



     Each Lender expressly acknowledges that neither the Administrative Agent nor any of its
officers, directors, employees, agents, attorneys-in-fact or affiliates has made any representation
or warranty to it and that no act by the Administrative Agent hereinafter taken, including any
review of the affairs of any Credit Party, shall be deemed to constitute any representation or
warranty by the Administrative Agent to any Lender. Each Lender represents to the Administrative
Agent that it has, independently and without reliance upon the Administrative Agent or any other
Lender, and based on such documents and information as it has deemed appropriate, made its own
appraisal of and investigation into the business, operations, property, financial and other
condition and creditworthiness of the Borrower or any other Credit Party and made its own decision
to make its Loans hereunder and enter into this Credit Agreement. Each



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Lender also represents that it will, independently and without reliance upon the Administrative
Agent or any other Lender, and based on such documents and information as it shall deem appropriate
at the time, continue to make its own credit analysis, appraisals and decisions in taking or not
taking action under this Credit Agreement, and to make such investigation as it deems necessary to
inform itself as to the business, operations, property, financial and other condition and
creditworthiness of the Borrower and the other Credit Parties. Except for notices, reports and
other documents expressly required to be furnished to the Lenders by the Administrative Agent
hereunder, the Administrative Agent 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 Credit Party
which may come into the possession of the Administrative Agent or any of its officers, directors,
employees, agents, attorneys-in-fact or affiliates.




     Section 8.7 Indemnification.



     The Lenders agree to indemnify the Administrative Agent in its capacity hereunder (to the
extent not reimbursed by the Borrower and without limiting the obligation of the Borrower to do
so), ratably according to their respective Commitment 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, without limitation, at any
time following the payment of the Notes or any Reimbursement Obligation) be imposed on, incurred by
or asserted against the Administrative Agent in any way relating to or arising out of any Credit
Document or any documents contemplated by or referred to herein or therein or the transactions
contemplated hereby or thereby or any action taken or omitted by the Administrative Agent under or
in connection with any of the foregoing; provided, however, 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 resulting from the
Administrative Agent’s gross negligence or willful misconduct, as determined by a court of
competent jurisdiction. The agreements in this Section 8.7 shall survive the termination of this
Credit Agreement and payment of the Notes, any Reimbursement Obligation and all other amounts
payable hereunder.



     Section 8.8 The Administrative Agent in Its Individual Capacity.



     The Administrative Agent and its affiliates may make loans to, accept deposits from and
generally engage in any kind of business with the Borrower and the other Credit Parties as though
the Administrative Agent were not the Administrative Agent hereunder. With respect to the Loans
made or renewed by it and any Note issued to it, the Administrative Agent shall have the same
rights and powers under this Credit Agreement as any Lender and may exercise the same as though it
were not the Administrative Agent, and the terms “Lender” and “Lenders” shall include the
Administrative Agent in its individual capacity.



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     Section 8.9 Successor Administrative Agent.



     The Administrative Agent may resign as Administrative Agent upon 30 days’ prior written notice
to the Borrower and the Lenders. If the Administrative Agent shall resign as Administrative Agent
under this Credit Agreement and the other Credit Documents, then the Required Lenders shall appoint
from among the Lenders a successor administrative agent for the Lenders, which successor agent
shall be approved by the Borrower (such approval not to be unreasonably withheld) so long as no
Default or Event of Default has occurred and is continuing, whereupon such successor administrative
agent shall succeed to the rights, powers and duties of the Administrative Agent, and the term
“Administrative Agent” shall mean such successor administrative agent effective upon such
appointment and approval, and the former Administrative Agent’s rights, powers and duties as
Administrative Agent shall be terminated, without any other or further act or deed on the part of
such former Administrative Agent or any of the parties to this Credit Agreement or any holders of
the Notes. If no successor Administrative Agent has accepted appointment as Administrative Agent
within thirty (30) days after the retiring Administrative Agent’s giving notice of resignation, the
retiring Administrative Agent shall have the right, on behalf of the Lenders, to appoint a
successor administrative agent, which successor shall be approved by the Borrower (such approval
not to be unreasonably withheld) so long as no Default or Event of Default has occurred and is
continuing; provided that such successor administrative agent has minimum capital and
surplus of at least $500,000,000. If no successor administrative agent has accepted appointment as
Administrative Agent within sixty (60) days after the retiring Administrative Agent’s giving notice
of resignation, the retiring Administrative Agent’s resignation shall nevertheless become effective
and the Lenders shall perform all duties of the Administrative Agent hereunder until such time, if
any, as the Required Lenders appoint a successor administrative agent as provided for above. After
any retiring Administrative Agent’s resignation as Administrative Agent, the indemnification
provisions of this Credit Agreement and the other Credit Documents and the provisions of this
Article VIII shall inure to its benefit as to any actions taken or omitted to be taken by it while
it was Administrative Agent under this Credit Agreement.



     Section 8.10 Other Agents.



     None of the Lenders or other Persons identified on the facing page or signature pages of this
Agreement as a “syndication agent,” “documentation agent,” “co—agent,” “book manager,” “book
runner,” “lead manager,” “arranger,” “lead arranger” or “co—arranger” shall have any right, power,
obligation, liability, responsibility or duty under this Agreement other than, in the case of such
Lenders, those applicable to all Lenders as such. Without limiting the foregoing, none of the
Lenders or other Persons so identified shall have or be deemed to have any fiduciary relationship
with any Lender. Each Lender acknowledges that it has not relied, and will not rely, on any of the
Lenders or other Persons so identified in deciding to enter into this Agreement or in taking or not
taking action hereunder.



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ARTICLE IX




MISCELLANEOUS



     Section 9.1 Amendments, Waivers and Release of Collateral.



     Neither this Credit Agreement nor any of the other Credit Documents, nor any terms hereof or
thereof may be amended, supplemented, waived or modified except in accordance with the provisions
of this Section 9.1. The Required Lenders may or, with the written consent of the Required
Lenders, the Administrative Agent may, from time to time, (a) enter into with the Borrower or any
other Credit Party written amendments, supplements or modifications hereto and to the other Credit
Documents for the purpose of adding any provisions to this Credit Agreement or the other Credit
Documents or changing in any manner the rights of the Lenders or of the Borrower or any other
Credit Party hereunder or thereunder or (b) waive, on such terms and conditions as the Required
Lenders may specify in such instrument, any of the requirements of this Credit Agreement or the
other Credit Documents or any Default or Event of Default and its consequences; provided,
however, that no such amendment, supplement, modification, release, waiver or consent
shall:




     (i) reduce the amount or extend the scheduled date of maturity of any Loan or
Note or any installment thereon, or reduce the stated rate of any interest or fee payable
hereunder (except in connection with a waiver of interest at the increased post-default rate
set forth in Section 2.9 which shall be determined by a vote of the Required Lenders) or
extend the scheduled date of any payment thereof or increase the amount or extend the
expiration date of any Lender’s Commitment, in each case without the written consent of each
Lender directly affected thereby; provided that, it is understood and agreed that
(A) no waiver, reduction or deferral of a mandatory prepayment required pursuant to Section
2.8(b), nor any amendment of Section 2.8(b) or the definitions of Asset Disposition, Debt
Issuance, Equity Issuance, Excess Cash Flow, or Recovery Event, shall constitute a reduction
of the amount of, or an extension of the scheduled date of, the scheduled date of maturity
of, or any installment of, any Loan or Note, (B) any reduction in the stated rate of
interest on Revolving Loans shall only require the written consent of each Revolving Lender
and (C) any reduction in the stated rate of interest on the Tranche B Term Loan shall only
require the written consent of each Term Loan Lender; or




     (ii) amend, modify or waive any provision of this Section 9.1 or reduce the
percentage specified in the definition of Required Lenders, without the written consent of
all the Lenders; or




     (iii) amend, modify or waive any provision of Article VIII without the
written consent of the then Administrative Agent; or



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     (iv) release the Borrower or all or substantially all of the Guarantors from
their respective obligations hereunder or under the Guaranty, without the written consent of
all of the Lenders and Hedging Agreement Providers; or




     (v) release all or substantially all of the Collateral, without the written
consent of all of the Lenders and Hedging Agreement Providers; or




     (vi) permit any Credit Party to assign or transfer any of its rights or
obligations under this Credit Agreement or other Credit Documents without the written
consent of all of the Lenders other than in connection with a transaction permitted under
Section 6.5(a)(v); or




     (vii) amend, modify or waive any provision of the Credit Documents requiring
consent, approval or request of the Required Lenders or all Lenders, without the written
consent of all of the Required Lenders or Lenders as appropriate; or




     (viii) amend, modify or waive any provision of the Credit Documents affecting
the rights or duties of the Administrative Agent, the Issuing Lender or the Swingline Lender
under any Credit Document without the written consent of the Administrative Agent, the
Issuing Lender and/or the Swingline Lender, as applicable, in addition to the Lenders
required hereinabove to take such action; or




     (ix) amend or modify the definition of Credit Party Obligations to delete or
exclude any obligation or liability described therein without the written consent of each
Lender and each Hedging Agreement Provider directly affected thereby; or




     (x) amend, modify or waive the order in which Credit Party Obligations are
paid in Section 2.12(b) without the written consent of each Lender and each Hedging
Agreement Provider directly affected thereby.



     Any such waiver, amendment, supplement or modification and any such release shall apply
equally to each of the Lenders and shall be binding upon the Borrower, the other Credit Parties,
the Lenders, the Administrative Agent and all future holders of the Notes. In the case of any
waiver, the Borrower, the other Credit Parties, the Lenders and the Administrative Agent shall be
restored to their former position and rights hereunder and under the outstanding Loans and Notes
and other Credit 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.



     Notwithstanding any of the foregoing to the contrary, the consent of the Borrower and the
other Credit Parties shall not be required for any amendment, modification or waiver of the
provisions of Article VIII (other than the provisions of Section 8.9). In addition, the Credit
Parties and the Lenders hereby authorize the Administrative Agent to modify this Credit Agreement
by unilaterally amending or supplementing Schedule 2.1(a) from time to time in the



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manner requested by the Credit Parties, the Administrative Agent or any Lender in order to reflect
any assignments or transfers of the Loans and Commitments as provided for hereunder;
provided, however, that the Administrative Agent shall promptly deliver a copy of
any such modification to the Borrower and each Lender.




     Notwithstanding the fact that the consent of all the Lenders is required in certain
circumstances as set forth above, (x) each Lender is entitled to vote as such Lender sees fit on
any bankruptcy reorganization plan that affects the 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 Credit Party to use cash
collateral in the context of a bankruptcy or insolvency proceeding.



     Section 9.2 Notices.



     Except as otherwise provided in Article II, all notices, requests and demands to or upon the
respective parties hereto to be effective shall be in writing (including by telecopy), and, unless
otherwise expressly provided herein, shall be deemed to have been duly given or made (a) when
delivered by hand on a Business Day, (b) when transmitted via telecopy (or other facsimile device)
or electronic mail on a Business Day to the number or electronic mail address set out herein, (c)
the Business Day following the day on which the same has been delivered prepaid to a reputable
national overnight air courier service, or (d) the third Business Day following the day on which
the same is sent by certified or registered mail, postage prepaid, in each case, addressed as
follows in the case of the Borrower, the other Credit Parties and the Administrative Agent, and as
set forth on Schedule 9.2 in the case of the Lenders, or to such other address as may be
hereafter notified by the respective parties hereto and any future holders of the Notes:




	 	 	 	 	 
	 

	 	The Borrower
	 	NCI Building Systems, Inc.
	 

	 	and the other
	 	10943 N. Sam Houston Parkway W.
	 

	 	Credit Parties:
	 	Houston, Texas 77064
	 

	 	 	 	Attention: Robert J. Medlock
	 

	 	 	 	                   Chief Financial Officer
	 

	 	 	 	Telecopier: (281) 477-9675
	 

	 	 	 	Telephone: (281) 897-7765
	 

	 	 	 	Email: bmedlock@ncilp.com
	 
	 	 	 	 
	 

	 	The Administrative	 	 
	 

	 	Agent:
	 	Wachovia Bank, National Association
	 

	 	 	 	201 South College Street
	 

	 	 	 	NC0680/CP8
	 

	 	 	 	Charlotte, North Carolina 28288-0608
	 

	 	 	 	Attention: Syndication Agency Services
	 

	 	 	 	Telecopier: (704) 383-3612
	 

	 	 	 	Telephone: (704) 715-1093
	 

	 	 	 	Email: colleen.murphy@wachovia.com






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	 	 	 	with a copy to:
	 
	 	 	 	 
	 

	 	 	 	Wachovia Bank, National Association
	 

	 	 	 	One Wachovia Center, DC-5
	 

	 	 	 	Charlotte, North Carolina 28288-0735
	 

	 	 	 	Attention: Glenn Edwards
	 

	 	 	 	Telecopier: 704-383-3300
	 

	 	 	 	Telephone: 704-383-3810
	 

	 	 	 	Email: glenn.edwards@wachovia.com





provided, that notices given by the Borrower pursuant to Section 2.1 or Section 2.10
hereof shall be effective only upon receipt thereof by the Administrative Agent.




     Section 9.3 No Waiver; Cumulative Remedies.



     No failure to exercise and no delay in exercising, on the part of the Administrative Agent or
any Lender, any right, remedy, power or privilege hereunder 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 9.4 Survival of Representations and Warranties.



     All representations and warranties made hereunder and in any document, certificate or
statement delivered pursuant hereto or in connection herewith shall survive the execution and
delivery of this Credit Agreement and the Notes and the making of the Loans; provided that
all such representations and warranties shall terminate on the date upon which the Commitments have
been terminated and all amounts owing hereunder and under any Notes have been paid in full.



     Section 9.5 Payment of Expenses and Taxes.



     The Credit Parties agree (a) to pay or reimburse the Administrative Agent and the Arrangers
for all reasonable out-of-pocket costs and expenses incurred in connection with the development,
preparation, negotiation, printing and execution of, and any amendment, supplement or modification
to, this Credit Agreement and the other Credit Documents and any other documents prepared in
connection herewith or therewith, and the consummation and administration of the transactions
contemplated hereby and thereby, together with the reasonable fees and disbursements of counsel to
the Administrative Agent, (b) to pay or reimburse each Lender and the Administrative Agent for all
its costs and expenses incurred in connection with the enforcement or preservation of any rights
under this Credit Agreement, the Notes and any such other documents, including, without limitation,
the reasonable fees and disbursements of counsel to the Administrative Agent and to the Lenders
(including reasonable allocated costs of in-house legal counsel), and (c) on demand, to pay,
indemnify, and hold each Lender, the Administrative Agent and the Arrangers harmless from, any and
all recording and filing fees and



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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, supplement or modification of, or any waiver or consent under or
in respect of, the Credit Documents and any such other documents, and (d) to pay, indemnify, and
hold each Lender, the Administrative Agent and the Arrangers and their Affiliates directors,
officers, employees, agents, trustees, investment advisors and other representatives 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 the Credit Documents and
any such other documents and the use, or proposed use, of proceeds of the Loans (all of the
foregoing, collectively, the “indemnified liabilities”); provided, however,
that the Borrower shall not have any obligation hereunder to the Administrative Agent, the
Arrangers or any Lender with respect to indemnified liabilities arising from the gross negligence
or willful misconduct of the Administrative Agent, the Arrangers or such Lender, as determined by a
court of competent jurisdiction. The agreements in this Section 9.5 shall survive repayment of the
Loans, Notes and all other amounts payable hereunder. Notwithstanding anything to the contrary
contained in this Section 9.5 or elsewhere in any of the Credit Documents, neither the Borrower nor
any Subsidiary shall be obligated to pay or reimburse any Person for any costs, expenses, fees,
taxes or other charges of any nature whatsoever that are incurred or payable by any Person in
connection with any assignment referred to in Section 9.6(c), any participation referred to in
Section 9.6(b) or any pledge or security interest referred to in Section 9.6(h).




     Section 9.6 Successors and Assigns; Participations; Purchasing Lenders.




     (a) This Credit Agreement shall be binding upon and inure to the benefit of
the Credit Parties, the Lenders, the Administrative Agent, all future holders of the Notes
and their respective successors and assigns, except that none of the Credit Parties may
assign or transfer any of its rights or obligations under this Credit Agreement or the other
Credit Documents without the prior written consent of each Lender.




     (b) Any Lender may, in the ordinary course of its business and in accordance
with applicable law, at any time sell to one or more banks or other entities
(“Participants”) participating interests in any Loan owing to such Lender, any Note
held by such Lender, any Commitment of such Lender, or any other interest of such Lender
hereunder, in each case in minimum amounts of $1,000,000 (or, if less, the entire amount of
such Lender’s Obligations, Commitments or other interests). In the event of any such sale
by a Lender of participating interests to a Participant, such Lender’s obligations under
this Credit Agreement to the other parties to this Credit Agreement shall remain unchanged,
such Lender shall remain solely responsible for the performance thereof, such Lender shall
remain the holder of any such Note for all purposes under this Credit Agreement, and the
Borrower and the Administrative Agent shall continue to deal solely and directly with such
Lender in connection with such Lender’s rights and obligations under this Credit Agreement.
No Lender shall transfer or grant any participation under which the Participant shall have
rights to approve any amendment to or waiver of this



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Credit Agreement or any other Credit Document except to the extent such amendment or waiver
would (i) extend the scheduled maturity of any Loan or Note or any installment thereon in
which such Participant is participating, or reduce the stated rate or extend the time of
payment of interest or fees thereon (except in connection with a waiver of interest at the
increased post-default rate) or reduce the principal amount thereof, or increase the amount
of the Participant’s participation over the amount thereof then in effect (it being
understood that a waiver of any Default or Event of Default shall not constitute a change in
the terms of such participation, and that an increase in any Commitment or Loan shall be
permitted without consent of a Participant if such Participant’s participation is not
increased as a result thereof), (ii) release the Borrower or any material Guarantor from its
obligations under the Guaranty, (iii) release any material portion of the Collateral, or
(iv) consent to the assignment or transfer by the Borrower of any of its rights and
obligations under this Credit Agreement. In the case of any such participation, the
Participant shall not have any rights under this Credit Agreement or any of the other Credit
Documents (the Participant’s rights against such Lender in respect of such participation to
be those set forth in the agreement executed by such Lender in favor of the Participant
relating thereto) and all amounts payable by the Borrower hereunder shall be determined as
if such Lender had not sold such participation; provided that each Participant shall
be entitled to the benefits of Sections 2.14, 2.15, 2.16, 2.17 and 9.5 with respect to its
participation in the Commitments and the Loans outstanding from time to time;
provided, that no Participant shall be entitled to receive any greater amount
pursuant to such Sections than the transferor Lender would have been entitled to receive in
respect of the amount of the participation transferred by such transferor Lender to such
Participant had no such transfer occurred.




     (c) Any Lender may, in the ordinary course of its business and in accordance
with applicable law, at any time, sell or assign to any Lender or any Affiliate or Approved
Fund thereof and to one or more additional banks or financial institutions or entities but
neither to the Borrower nor any Affiliate of the Borrower (“Purchasing Lenders”),
all or any part of its rights and obligations under this Credit Agreement and the Notes in
minimum amounts of (i) $2,500,000 with respect to its Revolving Commitment and its Revolving
Loans (or, if less, the entire amount of such Lender’s Revolving Commitment and Revolving
Loans) and (ii) $1,000,000 (or any lesser amount as approved by the Administrative Agent)
with respect to its Tranche B Term Loans (or, if less, the entire amount of such Lender’s
Tranche B Term Loans), pursuant to a Commitment Transfer Supplement, executed by such
Purchasing Lender, such transferor Lender, the Administrative Agent (to the extent required)
and, so long as no Default or Event of Default has occurred and is continuing, the Borrower,
and delivered to the Administrative Agent for its acceptance and recording in the Register;
provided, however, that (A) any sale or assignment to an existing Lender, or
Affiliate or Approved Fund thereof, shall not require the consent of the Borrower nor shall
any such sale or assignment be subject to the minimum assignment amounts specified herein
and (B) any sale or assignment of a portion of the Tranche B Term Loan and a Tranche B Term
Loan Commitment shall not require the consent of the Borrower. Upon such execution,
delivery, acceptance and recording, from and after the Transfer Effective Date specified in
such Commitment Transfer Supplement, (x) the Purchasing Lender thereunder shall be



98









 







a party hereto and, to the extent provided in such Commitment Transfer Supplement, have
the rights and obligations of a Lender hereunder with a Commitment as set forth therein, and
(y) the transferor Lender thereunder shall, to the extent provided in such Commitment
Transfer Supplement, be released from its obligations under this Credit Agreement (and, in
the case of a Commitment Transfer Supplement covering all or the remaining portion of a
transferor Lender’s rights and obligations under this Credit Agreement, such transferor
Lender shall cease to be a party hereto). Such Commitment Transfer Supplement shall be
deemed to amend this Credit Agreement to the extent, and only to the extent, necessary to
reflect the addition of such Purchasing Lender and the resulting adjustment of Commitment
Percentages arising from the purchase by such Purchasing Lender of all or a portion of the
rights and obligations of such transferor Lender under this Credit Agreement and the Notes.
On or prior to the Transfer Effective Date specified in such Commitment Transfer Supplement,
the Borrower, at its own expense, shall execute and deliver to the Administrative Agent in
exchange for the Notes delivered to the Administrative Agent pursuant to such Commitment
Transfer Supplement new Notes to the order of such Purchasing Lender in an amount equal to
the Commitment assumed by it pursuant to such Commitment Transfer Supplement and, unless the
transferor Lender has not retained a Commitment hereunder, new Notes to the order of the
transferor Lender in an amount equal to the Commitment retained by it hereunder. Such new
Notes shall be dated the Closing Date and shall otherwise be in the form of the Notes
replaced thereby.




     (d) The Administrative Agent, acting solely for this purpose as an agent of
the Borrower, shall maintain at its address referred to in Section 9.2 a copy of each
Commitment Transfer Supplement delivered to it and a register (the “Register”) for
the recordation of the names and addresses of the Lenders and the Commitment of, and
principal amount of the Loans owing to, each Lender from time to time. The entries in the
Register shall be conclusive, in the absence of manifest error, and the Borrower, the
Administrative Agent and the Lenders may treat each Person whose name is recorded in the
Register as the owner of the Loan recorded therein for all purposes of this Credit
Agreement. The Register shall be available for inspection by the Borrower or any Lender at
any reasonable time and from time to time upon reasonable prior notice.




     (e) Upon its receipt of a duly executed Commitment Transfer Supplement,
together with payment to the Administrative Agent by the transferor Lender or the Purchasing
Lender (except for any assignment by a Lender to an Affiliate of such Lender), as agreed
between them, of a registration and processing fee of $3,500 for each Purchasing Lender
(except that in the case of contemporaneous assignments by a Lender to more than one
Approved Fund managed by the same investment advisor which are not then Lenders hereunder,
only a single such $3,500 fee shall be payable for contemporaneous assignments) listed in
such Commitment Transfer Supplement and the Notes subject to such Commitment Transfer
Supplement (for which neither the Borrower, nor any Subsidiary shall have any obligations
for payment or reimbursement), the Administrative Agent shall (i) accept such Commitment
Transfer Supplement and (ii) record the information contained therein in the Register.



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     (f) Each Credit Party authorizes each Lender to disclose to any Participant
or Purchasing Lender (each, a “Transferee”) and any prospective Transferee any and
all financial information in such Lender’s possession concerning the Credit Parties and
their Affiliates which has been delivered to such Lender by or on behalf of a Credit Party
pursuant to this Credit Agreement or which has been delivered to such Lender by or on behalf
of a Credit Party in connection with such Lender’s credit evaluation of the Credit Parties
and their Affiliates prior to becoming a party to this Credit Agreement, in each case
subject to Section 9.14.




     (g) At the time of each assignment pursuant to this Section 9.6 to a Person
which is not already a Lender hereunder and which is not a United States person (as such
term is defined in Section 7701(a)(30) of the Code) for federal income tax purposes, the
respective assignee Lender shall provide to the Borrower and the Administrative Agent the
appropriate Internal Revenue Service Forms (and, if applicable, a 2.18 Certificate)
described in Section 2.18.




     (h) Nothing herein shall prohibit any Lender from pledging or assigning any
of its rights under this Credit Agreement (including, without limitation, any right to
payment of principal and interest under any Note) to secure obligations of such Lender,
including without limitation, (i) any pledge or assignment to secure obligations to a
Federal Reserve Bank and (ii) in the case of any Lender that is a fund or trust or entity
that invests in commercial bank loans in the ordinary course of business, any pledge or
assignment to any holders of obligations owed, or securities issued, by such Lender
including to any trustee for, or any other representative of, such holders; it being
understood that the requirements for assignments set forth in this Section 9.6 shall not
apply to any such pledge or assignment of a security interest, except with respect to any
foreclosure or similar action taken by such pledgee or assignee with respect to such pledge
or assignment; provided that no such pledge or assignment of a security interest
shall release a Lender from any of its obligations hereunder or substitute any such pledgee
or assignee for such Lender as a party hereto and no such pledgee or assignee shall have any
voting rights under this Credit Agreement unless and until the requirements for assignments
set forth in this Section 9.6 are complied with in connection with any foreclosure or
similar action taken by such pledgee or assignee.



     Section 9.7 Adjustments; Set-off.




     (a) Each Lender agrees that if any Lender (a “benefited Lender”)
shall at any time receive any payment of all or part of its Loans, or interest thereon, or
receive any collateral in respect thereof (whether voluntarily or involuntarily, by set-off,
pursuant to a Bankruptcy Event, or otherwise) 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
Loans, or interest thereon, such benefited Lender shall purchase for cash from the other
Lenders a participating interest in such portion of each such other Lender’s Loan, 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



100









 







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 interest. The Borrower agrees that
each Lender so purchasing a portion of another Lender’s Loans may exercise all rights of
payment (including, without limitation, rights of set-off) with respect to such portion as
fully as if such Lender were the direct holder of such portion.




     (b) In addition to any rights and remedies of the Lenders provided by law
(including, without limitation, other rights of set-off), 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 any Event of Default, to
setoff and appropriate and apply 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 by or owing to such Lender or any branch or agency thereof to or
for the credit or the account of the Borrower or any other Credit Party, or any part thereof
in such amounts as such Lender may elect, against and on account of the Loans and other
Credit Party Obligations of the Borrower and the other Credit Parties to such Lender
hereunder and claims of every nature and description of such Lender against the Borrower and
the other Credit Parties, in any currency, whether arising hereunder, under any other Credit
Document or any Hedging Agreement provided by such Lender pursuant to the terms of this
Agreement, as such Lender may elect, whether or not such Lender has made any demand for
payment and although such obligations, liabilities and claims may be contingent or
unmatured. The aforesaid right of set-off may be exercised by such Lender against the
Borrower, any other Credit Party or against any trustee in bankruptcy, debtor in possession,
assignee for the benefit of creditors, receiver or execution, judgment or attachment
creditor of the Borrower or any other Credit Party, or against anyone else claiming through
or against the Borrower, any other Credit Party or any such trustee in bankruptcy, debtor in
possession, assignee for the benefit of creditors, receiver, or execution, judgment or
attachment creditor, notwithstanding the fact that such right of set-off shall not have been
exercised by such Lender prior to the occurrence of any Event of Default. Each Lender
agrees promptly to notify the Borrower and the Administrative Agent after any such set-off
and application made by such Lender; provided, however, that the failure to
give such notice shall not affect the validity of such set-off and application.



     Section 9.8 Table of Contents and Section Headings.



     The table of contents and the Section and subsection headings herein are intended for
convenience only and shall be ignored in construing this Credit Agreement.



     Section 9.9 Counterparts.



     This Credit Agreement may be executed by one or more of the parties to this Credit Agreement
on any number of separate counterparts, and all of said counterparts taken together shall be deemed
to constitute one and the same instrument. A counterpart hereof (or signature



101









 




page thereto) signed and transmitted by any Person party hereto to the Administrative Agent (or its
counsel) by facsimile machine, telecopier or electronic mail is to be treated as an original. The
signature of such Person thereon, for purposes hereof, is to be considered as an original
signature, and the counterpart (or signature page thereto) so transmitted is to be considered to
have the same binding effect as an original signature on an original document. A set of the copies
of this Credit Agreement signed by all the parties shall be lodged with the Borrower and the
Administrative Agent.




     Section 9.10 Integration; Effectiveness; Continuing Agreement.




     (a) This Credit Agreement, together with the other Credit Documents,
comprises the complete and integrated agreement of the parties on the subject matter hereof
and thereof and supersedes all prior agreements, written or oral, on such subject matter.
In the event of any conflict between the provisions of this Credit Agreement and those of
any other Credit Document, the provisions of this Credit Agreement shall control;
provided that the inclusion of supplemental rights or remedies in favor of the
Administrative Agent or the Lenders in any other Credit Document shall not be deemed a
conflict with this Credit Agreement. Each Credit Document was drafted with the joint
participation of the respective parties thereto and shall be construed neither against nor
in favor of any party, but rather in accordance with the fair meaning thereof.




     (b) This Credit Agreement shall become effective at such time when all of the
conditions set forth in Section 4.1 have been satisfied or waived by the Lenders and it
shall have been executed by the Borrower, the Guarantors and the Administrative Agent, and
the Administrative Agent shall have received copies hereof (telefaxed or otherwise) which,
when taken together, bear the signatures of each Lender, and thereafter this Credit
Agreement shall be binding upon and inure to the benefit of the Borrower, the Guarantors,
the Administrative Agent and each Lender and their respective successors and permitted
assigns.




     (c) This Credit Agreement shall be a continuing agreement and shall remain in
full force and effect until all Loans, LOC Obligations, interest, fees and other Credit
Party Obligations (other than those obligations that expressly survive the termination of
this Credit Agreement) have been paid in full and all Commitments and Letters of Credit have
been terminated. Upon termination, the Credit Parties shall have no further obligations
(other than those obligations that expressly survive the termination of this Credit
Agreement) under the Credit Documents and the Administrative Agent shall, at the request and
expense of the Borrower, deliver all the Collateral in its possession to the Borrower and
release all Liens on the Collateral; provided that should any payment, in whole or
in part, of the Credit Party Obligations be rescinded or otherwise required to be restored
or returned by the Administrative Agent or any Lender, whether as a result of any
proceedings in bankruptcy or reorganization or otherwise, then the Credit Documents shall
automatically be reinstated and all Liens of the Administrative Agent shall reattach to the
Collateral and all amounts required to be restored or returned and all costs and expenses
incurred by the Administrative Agent or any Lender in connection therewith shall be deemed
included as part of the Credit Party Obligations.



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     Section 9.11 Severability.



     Any provision of this Credit 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.



     Section 9.12 Governing Law.



     This Credit Agreement and the Notes and the rights and obligations of the parties under this
Credit Agreement and the Notes shall be governed by, and construed and interpreted in accordance
with, the law of the State of North Carolina.



     Section 9.13 Consent to Jurisdiction and Service of Process.



     All judicial proceedings brought against the Borrower and/or any other Credit Party with
respect to this Credit Agreement, any Note or any of the other Credit Documents may be brought in
any state or federal court of competent jurisdiction in the State of North Carolina, and, by
execution and delivery of this Credit Agreement, each of the Borrower and the other Credit Parties
accepts, for itself and in connection with its properties, generally and unconditionally, the
non-exclusive jurisdiction of the aforesaid courts and irrevocably agrees to be bound by any final
judgment rendered thereby in connection with this Credit Agreement from which no appeal has been
taken or is available. Each of the Borrower and the other Credit Parties irrevocably agrees that
all service of process in any such proceedings in any such court may be effected by mailing a copy
thereof by registered or certified mail (or any substantially similar form of mail), postage
prepaid, to it at its address set forth in Section 9.2 or at such other address of which the
Administrative Agent shall have been notified pursuant thereto, such service being hereby
acknowledged by the each of the Borrower and the other Credit Parties to be effective and binding
service in every respect. Each of the Borrower, the other Credit Parties, the Administrative Agent
and the Lenders irrevocably waives any objection, including, without limitation, any objection to
the laying of venue or based on the grounds of forum non conveniens, which it may now or hereafter
have to the bringing of any such action or proceeding in any such jurisdiction. Nothing herein
shall affect the right to serve process in any other manner permitted by law or shall limit the
right of any Lender to bring proceedings against the Borrower or the other Credit Parties in the
court of any other jurisdiction.



     Section 9.14 Arbitration.




     (a) Notwithstanding the provisions of Section 9.13 to the contrary, upon
demand of any party hereto, whether made before or within three (3) months after institution
of any judicial proceeding, any dispute, claim or controversy arising out of, connected with
or relating to this Credit Agreement and the other Credit Documents (“Disputes”)
between or among parties to this Credit Agreement shall be resolved by binding arbitration
as provided herein. Institution of a judicial proceeding by a party



103









 







does not waive the right of that party to demand arbitration hereunder. Disputes may
include, without limitation, tort claims, counterclaims, disputes as to whether a matter is
subject to arbitration, claims brought as class actions, claims arising from Credit
Documents executed in the future, or claims arising out of or connected with the
transactions reflected by this Credit Agreement.




     Arbitration shall be conducted under and governed by the Commercial Arbitration Rules
(the “Arbitration Rules”) of the American Arbitration Association (the
“AAA”) and Title 9 of the U.S. Code. All arbitration hearings shall be conducted in
Charlotte, North Carolina. A hearing shall begin within 90 days of demand for arbitration
and all hearings shall be concluded within 120 days of demand for arbitration. These time
limitations may not be extended unless a party shows cause for extension and then no more
than a total extension of 60 days. The expedited procedures set forth in Rule 51 et
seq. of the Arbitration Rules shall be applicable to claims of less than $1,000,000.
All applicable statutes of limitation shall apply to any Dispute. A judgment upon the
award may be entered in any court having jurisdiction. Arbitrators shall be licensed
attorneys selected from the Commercial Financial Dispute Arbitration Panel of the AAA. The
parties hereto do not waive applicable Federal or state substantive law except as provided
herein. Notwithstanding the foregoing, this arbitration provision does not apply to
disputes under or related to Hedging Agreements.




     (b) Notwithstanding the preceding binding arbitration provisions, the
Administrative Agent, the Lenders, the Borrower and the other Credit Parties agree to
preserve, without diminution, certain remedies that the Administrative Agent on behalf of
the Lenders may employ or exercise freely, independently or in connection with an
arbitration proceeding or after an arbitration action is brought. The Administrative Agent
on behalf of the Lenders shall have the right to proceed in any court of proper jurisdiction
or by self-help to exercise or prosecute the following remedies, as applicable (i) all
rights to foreclose against any real or personal property or other security by exercising a
power of sale granted under Credit Documents or under applicable law or by judicial
foreclosure and sale, including a proceeding to confirm the sale; (ii) all rights of
self-help including peaceful occupation of real property and collection of rents, set-off,
and peaceful possession of personal property; (iii) obtaining provisional or ancillary
remedies including injunctive relief, sequestration, garnishment, attachment, appointment of
receiver and filing an involuntary bankruptcy proceeding; and (iv) when applicable, a
judgment by confession of judgment. Preservation of these remedies does not limit the power
of an arbitrator to grant similar remedies that may be requested by a party in a Dispute.




     (c) The parties hereto agree that they shall not have a remedy of punitive or
exemplary damages against the other in any Dispute and hereby waive any right or claim to
punitive or exemplary damages they have now or which may arise in the future in connection
with any Dispute whether the Dispute is resolved by arbitration or judicially.




     (d) By execution and delivery of this Credit Agreement, each of the parties
hereto accepts, for itself and in connection with its properties, generally and uncondition



104









 







ally, the non-exclusive jurisdiction relating to any arbitration proceedings conducted under
the Arbitration Rules in Charlotte, North Carolina and irrevocably agrees to be bound by any
final judgment rendered thereby in connection with this Credit Agreement from which no
appeal has been taken or is available.



     Section 9.15 Confidentiality.



     The Administrative Agent and each of the Lenders agrees that, without the prior consent of the
Borrower, it will use its best efforts not to disclose any information with respect to the Credit
Parties which is furnished pursuant to this Credit Agreement, any other Credit Document or any
documents contemplated by or referred to herein or therein and which is designated by the Borrower
to the Lenders in writing as confidential or as to which it is otherwise reasonably clear such
information is not public, except that any Lender may disclose any such information (a) to its
employees, Affiliates, auditors and counsel or to another Lender, (b) as has become generally
available to the public other than by a breach of this Section 9.15, (c) as may be required or
appropriate in any report, statement or testimony submitted to any municipal, state or federal
regulatory body having or claiming to have jurisdiction over such Lender or to the Federal Reserve
Board or the Federal Deposit Insurance Corporation or the OCC or the NAIC or similar organizations
(whether in the United States or elsewhere) or their successors, (d) as may be required or
appropriate in response to any summons or subpoena or any law, order, regulation or ruling
applicable to such Lender, (e) to any prospective Participant or assignee in connection with any
contemplated transfer pursuant to Section 9.6; provided that such prospective transferee
shall have been made aware of this Section 9.15 and shall have agreed to be bound by its provisions
as if it were a party to this Credit Agreement, (f) to Gold Sheets and other similar bank
trade publications; such information to consist of deal terms and other information regarding the
credit facilities evidenced by this Credit Agreement customarily found in such publications, (g) in
connection with any suit, action or proceeding for the purpose of defending itself, reducing its
liability, or protecting or exercising any of its claims, rights, remedies or interests under or in
connection with the Credit Documents or any Secured Hedging Agreement, (h) to any direct or
indirect contractual counterparty in swap agreements or such contractual counterparty’s
professional advisor (so long as such contractual counterparty or professional advisor to such
contractual counterparty agrees to be bound by the provisions of this Section 9.15), and (i) to the
National Association of Insurance Commissioners or any similar organization or any nationally
recognized rating agency that requires access to information about a Lender’s investment portfolio
in connection with ratings issued with respect to such Lender.



     Section 9.16 Acknowledgments.



     The Borrower and the other Credit Parties each hereby acknowledges that:




     (a) it has been advised by counsel in the negotiation, execution and delivery
of each Credit Document;




     (b) neither the Administrative Agent nor any Lender has any fiduciary
relationship with or duty to the Borrower or any other Credit Party arising out of or in
connection with this Credit Agreement and the relationship between Administrative



105









 







Agent and Lenders, on one hand, and the Borrower and the other Credit Parties, on the other
hand, in connection herewith is solely that of debtor and creditor; and




     (c) no joint venture exists among the Lenders or among the Borrower or the
other Credit Parties and the Lenders.



     Section 9.17 Waivers of Jury Trial; Waiver of Consequential Damages.



     THE BORROWER, THE OTHER CREDIT PARTIES, THE ADMINISTRATIVE AGENT AND THE LENDERS HEREBY
IRREVOCABLY AND UNCONDITIONALLY WAIVE, TO THE EXTENT PERMITTED BY APPLICABLE LAW, TRIAL BY JURY IN
ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS CREDIT AGREEMENT OR ANY OTHER CREDIT DOCUMENT AND
FOR ANY COUNTERCLAIM THEREIN. Each of the Borrower, the other Credit Parties, the Administrative
Agent and the Lenders agree not to assert any claim against any other party to this Credit
Agreement or any their respective directors, officers, employees, attorneys, Affiliates or agents,
on any theory of liability, for special, indirect, consequential or punitive damages arising out of
or otherwise relating to any of the transactions contemplated herein.



     Section 9.18 Patriot Act Notice.



     Each Lender and the Administrative Agent (for itself and not on behalf of any other party)
hereby notifies the Borrower that, pursuant to the requirements of the USA Patriot Act, Title III
of Pub. L. 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 and address of the Borrower and other information that will allow such Lender or the
Administrative Agent, as applicable, to identify the Borrower in accordance with the Patriot Act.



ARTICLE X




GUARANTY



     Section 10.1 The Guaranty.



     In order to induce the Lenders to enter into this Credit Agreement and any Hedging Agreement
Provider to enter into any Secured Hedging Agreement and to extend credit hereunder and thereunder
and in recognition of the direct benefits to be received by the Guarantors from the Extensions of
Credit hereunder and any Secured Hedging Agreement, each of the Guarantors hereby agrees with the
Administrative Agent and the Lenders as follows: the Guarantor hereby unconditionally and
irrevocably jointly and severally guarantees as primary obligor and not merely as surety the full
and prompt payment when due, whether upon maturity, by acceleration or otherwise, of any and all
Credit Party Obligations. If any or all of the Credit Party Obligations becomes due and payable
hereunder or under any Secured Hedging Agreement, each Guarantor unconditionally promises to pay
such indebtedness to the Administrative Agent, the Lenders, the Hedging Agreement Providers, or
their respective order,



106









 




or demand, together with any and all reasonable expenses which may be incurred by the
Administrative Agent or the Lenders in collecting any of the Credit Party Obligations.




     Notwithstanding any provision to the contrary contained herein or in any other of the Credit
Documents, to the extent the obligations of a Guarantor shall be adjudicated to be invalid or
unenforceable for any reason (including, without limitation, because of any applicable state or
federal law relating to fraudulent conveyances or transfers) then the obligations of each such
Guarantor hereunder shall be limited to the maximum amount that is permissible under applicable law
(whether federal or state and including, without limitation, the Bankruptcy Code).



     Section 10.2 Bankruptcy.



     Additionally, each of the Guarantors unconditionally and irrevocably guarantees jointly and
severally the payment of any and all Credit Party Obligations of the Borrower to the Lenders and
any Hedging Agreement Provider whether or not due or payable by the Borrower upon the occurrence of
any Bankruptcy Event, and unconditionally promises to pay such Credit Party Obligations to the
Administrative Agent for the account of the Lenders and to any such Hedging Agreement Provider, or
order, on demand, in lawful money of the United States. Each of the Guarantors further agrees that
to the extent that the Borrower or a Guarantor shall make a payment or a transfer of an interest in
any property to the Administrative Agent, any Lender or any Hedging Agreement Provider, which
payment or transfer or any part thereof is subsequently invalidated, declared to be fraudulent or
preferential, or otherwise is avoided, and/or required to be repaid to the Borrower or a Guarantor,
the estate of the Borrower or a Guarantor, a trustee, receiver or any other party under any
bankruptcy law, state or federal law, common law or equitable cause, then to the extent of such
avoidance or repayment, the obligation or part thereof intended to be satisfied shall be revived
and continued in full force and effect as if said payment had not been made.



     Section 10.3 Nature of Liability.



     The liability of each Guarantor hereunder is exclusive and independent of any security for or
other guaranty of the Credit Party Obligations of the Borrower whether executed by any such
Guarantor, any other guarantor or by any other party, and no Guarantor’s liability hereunder shall
be affected or impaired by (a) any direction as to application of payment by the Borrower or by any
other party, or (b) any other continuing or other guaranty, undertaking or maximum liability of a
guarantor or of any other party as to the Credit Party Obligations of the Borrower, or (c) any
payment on or in reduction of any such other guaranty or undertaking, or (d) any dissolution,
termination or increase, decrease or change in personnel by the Borrower, or (e) any payment made
to the Administrative Agent, the Lenders or any Hedging Agreement Provider on the Credit Party
Obligations which the Administrative Agent, such Lenders or such Hedging Agreement Provider repay
the Borrower pursuant to court order in any bankruptcy, reorganization, arrangement, moratorium or
other debtor relief proceeding, and each of the Guarantors waives any right to the deferral or
modification of its obligations hereunder by reason of any such proceeding.



107









 





     Section 10.4 Independent Obligation.



     The obligations of each Guarantor hereunder are independent of the obligations of any other
Guarantor or the Borrower, and a separate action or actions may be brought and prosecuted against
each Guarantor whether or not action is brought against any other Guarantor or the Borrower and
whether or not any other Guarantor or the Borrower is joined in any such action or actions.



     Section 10.5 Authorization.



     Each of the Guarantors authorizes the Administrative Agent, each Lender and each Hedging
Agreement Provider without notice or demand (except as shall be required by applicable statute and
cannot be waived), and without affecting or impairing its liability hereunder, from time to time to
(a) renew, compromise, extend, increase, accelerate or otherwise change the time for payment of, or
otherwise change the terms of the Credit Party Obligations or any part thereof in accordance with
this Agreement and any Secured Hedging Agreement, as applicable, including any increase or decrease
of the rate of interest thereon, (b) take and hold security from any Guarantor or any other party
for the payment of this Guaranty or the Credit Party Obligations and exchange, enforce waive and
release any such security, (c) apply such security and direct the order or manner of sale thereof
as the Administrative Agent and the Lenders in their discretion may determine and (d) release or
substitute any one or more endorsers, Guarantors, the Borrower or other obligors.



     Section 10.6 Reliance.



     It is not necessary for the Administrative Agent, the Lenders or any Hedging Agreement
Provider to inquire into the capacity or powers of the Borrower or the officers, directors,
members, partners or agents acting or purporting to act on its behalf, and any Credit Party
Obligations made or created in reliance upon the professed exercise of such powers shall be
guaranteed hereunder.



     Section 10.7 Waiver.




     (a) Each of the Guarantors waives any right (except as shall be required by
applicable statute and cannot be waived) to require the Administrative Agent, any Lender or
any Hedging Agreement Provider to (i) proceed against the Borrower, any other guarantor or
any other party, (ii) proceed against or exhaust any security held from the Borrower, any
other guarantor or any other party, or (iii) pursue any other remedy in the Administrative
Agent’s, any Lender’s or any Hedging Agreement Provider’s power whatsoever. Each of the
Guarantors waives any defense based on or arising out of any defense of the Borrower, any
other guarantor or any other party other than payment in full of the Credit Party
Obligations (other than contingent indemnity obligations), including without limitation any
defense based on or arising out of the disability of the Borrower, any other guarantor or
any other party, or the unenforceability of the Credit Party Obligations or any part thereof
from any cause, or the cessation from any cause of the liability of the Borrower other than
payment in full of the Credit Party Obligations.



108









 






Without limiting the generality of the provisions of this Article X, each of the Guarantors
hereby specifically waives the benefits of N.C. Gen. Stat. § 26-7 through 26-9, inclusive.
The Administrative Agent may, at its election, foreclose on any security held by the
Administrative Agent by one or more judicial or nonjudicial sales (to the extent such sale
is permitted by applicable law), or exercise any other right or remedy the Administrative
Agent or any Lender may have against the Borrower or any other party, or any security,
without affecting or impairing in any way the liability of any Guarantor hereunder except to
the extent the Credit Party Obligations have been paid in full and the Commitments have been
terminated. Each of the Guarantors waives any defense arising out of any such election by
the Administrative Agent or any of the Lenders, even though such election operates to impair
or extinguish any right of reimbursement or subrogation or other right or remedy of the
Guarantors against the Borrower or any other party or any security.




     (b) Each of the Guarantors waives all presentments, demands for performance,
protests and notices, including without limitation notices of nonperformance, notice of
protest, notices of dishonor, notices of acceptance of this Guaranty, and notices of the
existence, creation or incurring of new or additional Credit Party Obligations. Each
Guarantor assumes all responsibility for being and keeping itself informed of the Borrower’s
financial condition and assets, and of all other circumstances bearing upon the risk of
nonpayment of the Credit Party Obligations and the nature, scope and extent of the risks
which such Guarantor assumes and incurs hereunder, and agrees that neither the
Administrative Agent nor any Lender shall have any duty to advise such Guarantor of
information known to it regarding such circumstances or risks.




     (c) Each of the Guarantors hereby agrees it will not exercise any rights of
subrogation which it may at any time otherwise have as a result of this Guaranty (whether
contractual, under Section 509 of the U.S. Bankruptcy Code, or otherwise) to the claims of
the Lenders or any Hedging Agreement Provider against the Borrower or any other guarantor of
the Credit Party Obligations of the Borrower owing to the Lenders or such Hedging Agreement
Provider (collectively, the “Other Parties”) and all contractual, statutory or
common law rights of reimbursement, contribution or indemnity from any Other Party which it
may at any time otherwise have as a result of this Guaranty until such time as the Credit
Party Obligations shall have been paid in full and the Commitments have been terminated.
Each of the Guarantors hereby further agrees not to exercise any right to enforce any other
remedy which the Administrative Agent, the Lenders or any Hedging Agreement Provider now
have or may hereafter have against any Other Party, any endorser or any other guarantor of
all or any part of the Credit Party Obligations of the Borrower and any benefit of, and any
right to participate in, any security or collateral given to or for the benefit of the
Lenders and/or the Hedging Agreement Providers to secure payment of the Credit Party
Obligations of the Borrower until such time as the Credit Party Obligations (other than
contingent indemnity obligations) shall have been paid in full and the Commitments have been
terminated.



109









 





     Section 10.8 Limitation on Enforcement.



     The Lenders and the Hedging Agreement Providers agree that this Guaranty may be enforced only
by the action of the Administrative Agent acting upon the instructions of the Required Lenders or
such Hedging Agreement Provider (only with respect to obligations under the applicable Secured
Hedging Agreement) and that no Lender or Hedging Agreement Provider shall have any right
individually to seek to enforce or to enforce this Guaranty, it being understood and agreed that
such rights and remedies may be exercised by the Administrative Agent for the benefit of the
Lenders under the terms of this Credit Agreement and for the benefit of any Hedging Agreement
Provider under any Secured Hedging Agreement. The Lenders and the Hedging Agreement Providers
further agree that this Guaranty may not be enforced against any director, officer, employee or
stockholder of the Guarantors.



     Section 10.9 Confirmation of Payment.



     The Administrative Agent and the Lenders will, upon request after payment of the Credit Party
Obligations and termination of the Commitments relating thereto, confirm to the Borrower, the
Guarantors or any other Person that such indebtedness and obligations have been paid and the
Commitments relating thereto terminated, subject to the provisions of Section 10.2.



[REMAINDER OF PAGE INTENTIONALLY BLANK]






110









 







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




	 	 	 	 	 	 	 
	BORROWER:	 	NCI BUILDING SYSTEMS, INC.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:

Name:
	 	/s/ Robert J. Medlock
 

Robert J. Medlock
	 	 
	 

	 	Title:
	 	Executive Vice President and	 	 
	 

	 	 	 	Chief Financial Officer	 	 
	 
	 	 	 	 	 	 
	GUARANTORS:	 	NCI HOLDING CORP.	 	 
	 	 	NCI OPERATING CORP.	 	 
	 	 	METAL COATERS OF CALIFORNIA, INC.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:

Name:
	 	/s/ Robert J. Medlock
 

Robert J. Medlock
	 	 
	 

	 	Title:
	 	Executive Vice President and	 	 
	 

	 	 	 	Chief Financial Officer	 	 
	 
	 	 	 	 	 	 
	 	 	A & S BUILDING SYSTEMS, L.P.	 	 
	 	 	NCI BUILDING SYSTEMS, L.P.	 	 
	 	 	METAL BUILDING COMPONENTS, L.P.	 	 
	 	 	NCI GROUP, L.P.	 	 
	 
	 	 	 	 	 	 
	 

	 	 	 	     NCI OPERATING CORP.,	 	 
	 

	 	 	 	     as General Partner	 	 
	 
	 	 	 	 	 	 
	 

	 	By:

Name:
	 	/s/ Robert J. Medlock
 

Robert J. Medlock
	 	 
	 

	 	Title:
	 	Executive Vice President and	 	 
	 

	 	 	 	Chief Financial Officer	 	 






NCI Building Systems, Inc.

Credit Agreement




 









 





	 	 	 	 	 	 	 
	ADMINISTRATIVE
AGENT AND LENDERS:
	 	 	 	 	 	 
	 	 	WACHOVIA BANK, NATIONAL	 	 
	 	 	ASSOCIATION,	 	 
	 	 	as Administrative Agent and as a Lender	 	 
	 
	 	 	 	 	 	 
	 

	 	By:

Name:
	 	/s/ Glenn F. Edwards
 

Glenn F. Edwards
	 	 
	 

	 	Title:
	 	Managing Director	 	 






NCI Building Systems, Inc.

Credit Agreement




 









 





	 	 	 	 	 	 	 
	 	 	ALLIED IRISH BANKS, P.L.C.,	 	 
	 	 	as a Lender	 	 
	 
	 	 	 	 	 	 
	 

	 	By:

Name:
	 	/s/ Margaret Brennan
 

Margaret Brennan
	 	 
	 

	 	Title:
	 	Vice President	 	 
	 
	 	 	 	 	 	 
	 

	 	By:

Name:
	 	/s/ Joseph S. Augustini
 

Joseph S. Augustini
	 	 
	 

	 	Title:
	 	Vice President	 	 






NCI Building Systems, Inc.

Credit Agreement




 









 





	 	 	 	 	 	 	 
	 	 	BANK OF AMERICA, N.A.,	 	 
	 	 	as Syndication Agent and as a Lender	 	 
	 
	 	 	 	 	 	 
	 

	 	By:

Name:
	 	/s/ Brian D. Corum
 

Brian D. Corum
	 	 
	 

	 	Title:
	 	Managing Director	 	 






NCI Building Systems, Inc.

Credit Agreement




 









 





	 	 	 	 	 	 	 
	 	 	BNP PARIBAS,	 	 
	 	 	as a Lender	 	 
	 
	 	 	 	 	 	 
	 

	 	By:

Name:
	 	/s/ Mike Shryock
 

Mike Shryock
	 	 
	 

	 	Title:
	 	Director	 	 
	 
	 	 	 	 	 	 
	 

	 	By:

Name:
	 	/s/ Aurora L. Abella
 

Aurora L. Abella
	 	 
	 

	 	Title:
	 	Vice President	 	 






NCI Building Systems, Inc.

Credit Agreement




 









 





	 	 	 	 	 	 	 
	 	 	CREDIT INDUSTRIEL ET	 	 
	 	 	COMMERCIAL, as a Lender	 	 
	 
	 	 	 	 	 	 
	 

	 	By:

Name:
	 	/s/ Anthony Rock
 

Anthony Rock
	 	 
	 

	 	Title:
	 	Vice President	 	 
	 
	 	 	 	 	 	 
	 

	 	By:

Name:
	 	/s/ Marcus Edward
 

Marcus Edward
	 	 
	 

	 	Title:
	 	Vice President	 	 






NCI Building Systems, Inc.

Credit Agreement




 









 





	 	 	 	 	 	 	 
	 	 	COOPERATIEVE CENTRALE	 	 
	 	 	RAIFFEISEN-BOERENLEENBANK B.V.	 	 
	 	 	“RABOBANK INTERNATIONAL”,	 	 
	 	 	NEW YORK BRANCH, as a Lender	 	 
	 
	 	 	 	 	 	 
	 

	 	By:

Name:
	 	/s/ Bert M. Corum
 

Bert M. Corum
	 	 
	 

	 	Title:
	 	Executive Director	 	 
	 
	 	 	 	 	 	 
	 

	 	By:

Name:
	 	/s/ Rebecca O. Morrow
 

Rebecca O. Morrow
	 	 
	 

	 	Title:
	 	Executive Director	 	 






NCI Building Systems, Inc.

Credit Agreement




 









 





	 	 	 	 	 	 	 
	 	 	GENERAL ELECTRIC CAPITAL	 	 
	 	 	CORPORATION, as a Lender	 	 
	 
	 	 	 	 	 	 
	 

	 	By:

Name:
	 	/s/ Brian P. Schwinn
 

Brian P. Schwinn
	 	 
	 

	 	Title:
	 	Duly Authorized Signatory	 	 






NCI Building Systems, Inc.

Credit Agreement




 









 





	 	 	 	 	 	 	 
	 	 	GUARANTY BANK, as a Lender	 	 
	 
	 	 	 	 	 	 
	 

	 	By:

Name:
	 	/s/ Scott L. Brewer
 

Scott L. Brewer
	 	 
	 

	 	Title:
	 	SVP	 	 






NCI Building Systems, Inc.

Credit Agreement




 









 





	 	 	 	 	 	 	 
	 	 	NATIONAL CITY BANK,	 	 
	 	 	as a Lender	 	 
	 
	 	 	 	 	 	 
	 

	 	By:

Name:
	 	/s/ Frank Byrne
 

Frank Byrne
	 	 
	 

	 	Title:
	 	Account Officer	 	 






NCI Building Systems, Inc.

Credit Agreement





 












 





Schedule 1.1(a)




[FORM OF]

NOTICE OF ACCOUNT DESIGNATION



                    , 2004



Wachovia Bank, National Association,

as Administrative Agent

Charlotte Plaza

201 South College Street, CP-8

Charlotte, North Carolina 28288-0680

Attn: Syndication Agency Services



Ladies and Gentlemen:




     This Notice of Account Designation is delivered to you by NCI Building Systems, Inc., a
Delaware corporation (the “Borrower”), under the Credit Agreement, dated as of June 18,
2004 (as amended, restated or otherwise modified, the “Credit Agreement”), by and among the
Borrower, the Domestic Subsidiaries of the Borrower from time to time party thereto (collectively
the “Guarantors”), the Lenders from time to time party thereto and Wachovia Bank, National
Association, as Administrative Agent for the Lenders (the “Administrative Agent”).
Capitalized terms used herein and not otherwise defined shall have the meanings set forth in the
Credit Agreement.



     The Administrative Agent is hereby authorized to disburse all Loan proceeds into the following
account, unless the Borrower shall designate, in writing to the Administrative Agent, one or more
other accounts:


[                                        ]

ABA Routing Number [                    ]

Account #[                    ]




     Notwithstanding the foregoing, on the Closing Date, funds borrowed under the Credit Agreement
shall be sent to the institutions and/or persons designated on payment instructions to be delivered
separately.



[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]














 





     IN WITNESS WHEREOF, the undersigned has executed this Notice of Account Designation this ___
day of                     , 2004.



	 	 	 	 	 
	 	NCI BUILDING SYSTEMS, INC.,

a Delaware corporation

 	 
	 	By:  	 	 
	 	Name:  	 	 
	 	Title:  	 	 
	 














 




SCHEDULE 1.1(b)

EXISTING LETTERS OF CREDIT



	1.	 	Standby Letter of Credit issued by Bank of America, N.A. (No. 907590) in favor of Traveler’s
Insurance Indemnity Company in the amount of
$        
         (expiring on or around November 2004).
	 
	2.	 	Standby Letter of Credit issued by Bank of America, N.A. (No. 3050664) in favor of St. Paul
Fire and Marine Insurance Company in the amount of
$        
         (expiring on November 1 or 17,
2004).














 





SCHEDULE 1.1(c)




EXISTING INVESTMENTS




	1.	 	NCI and its subsidiaries make employee loans and advances in the ordinary course and in de
minimus amounts, except that the companies do not make loans to NCI’s executive officers or
directors.





Page 1 of 1









 





SCHEDULE 1.1(d)




EXISTING LIENS




	1.	 	NCI Building Systems, Inc.





	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	Financing	 	 	 	 
	Filed With	 	Secured Party	 	Statement No.	 	Covering	 	Notice Only
	 
	Delaware Secretary of State

	 	Wells Fargo Equipment
Finance, Inc.
	 	 	10987581	 	 	 	 	Forklift
	 
	 	 	 	 	 	 	 	 	 	 
	Delaware Secretary of State

	 	CIT Communications

Finance Corporation
	 	 	20995138	 	 	 	 	Equipment
	 
	 	 	 	 	 	 	 	 	 	 
	Delaware Secretary of State

	 	Cisco Systems Capital

Corporation
	 	 	21682909	 	 	 	 	Equipment
	 
	 	 	 	 	 	 	 	 	 	 
	Delaware Secretary of State

	 	Inter-Tel Leasing, Inc.
	 	 	22689028	 	 	 	 	Equipment
	 
	 	 	 	 	 	 	 	 	 	 
	Delaware Secretary of State

	 	IOS Capital, LLC
	 	 	30937360	 	 	 	 	Equipment
	 
	 	 	 	 	 	 	 	 	 	 
	Delaware Secretary of State

	 	Citicorp Del Lease, Inc.
	 	 	31942500	 	 	 	 	Equipment
	 
	 	 	 	 	 	 	 	 	 	 
	Delaware Secretary of State

	 	IOS Capital LLC
	 	 	32097163	 	 	 	 	Equipment
	 
	 	 	 	 	 	 	 	 	 	 
	Delaware Secretary of State

	 	OCE-USA, Inc.
	 	 	32113788	 	 	 	 	Equipment
	 
	 	 	 	 	 	 	 	 	 	 
	Texas Secretary of State

	 	Associates Leasing Inc.
	 	 	99-137549	 	 	 	 	Equipment
	 
	 	 	 	 	 	 	 	 	 	 
	Texas Secretary of State

	 	Associates Leasing Inc.
	 	 	00-477952	 	 	 	 	Equipment
	 
	 	 	 	 	 	 	 	 	 	 
	Texas Secretary of State

	 	Associates Leasing Inc.
	 	 	00-481981	 	 	 	 	Equipment
	 
	 	 	 	 	 	 	 	 	 	 
	Texas Secretary of State

	 	Associates Leasing Inc.
	 	 	00-491170	 	 	 	 	Equipment
	 
	 	 	 	 	 	 	 	 	 	 
	Texas Secretary of State

	 	Associates Leasing Inc.
	 	 	00-499312	 	 	 	 	Equipment
	 
	 	 	 	 	 	 	 	 	 	 
	Texas Secretary of State

	 	Associates Leasing Inc.
	 	 	00-519468	 	 	 	 	Equipment
	 
	 	 	 	 	 	 	 	 	 	 
	Texas Secretary of State

	 	Associates Leasing Inc.
	 	 	00-539310	 	 	 	 	Equipment
	 
	 	 	 	 	 	 	 	 	 	 
	Texas Secretary of State

	 	Associates Leasing Inc.
	 	 	00-546775	 	 	 	 	Equipment
	 
	 	 	 	 	 	 	 	 	 	 
	Texas Secretary of State

	 	U.S. Bancorp Leasing
& Financial
	 	 	00-613731	 	 	 	 	Equipment
	 
	 	 	 	 	 	 	 	 	 	 
	Texas Secretary of State

	 	Associates Leasing Inc.
	 	 	00-622719	 	 	 	 	Equipment
	 
	 	 	 	 	 	 	 	 	 	 
	Texas Secretary of State

	 	Associates Leasing Inc.
	 	 	01-041772	 	 	 	 	Equipment
	 
	 	 	 	 	 	 	 	 	 	 
	Texas Secretary of State

	 	Associates Leasing Inc.
	 	 	01-050056	 	 	 	 	Equipment
	 
	 	 	 	 	 	 	 	 	 	 
	Texas Secretary of State

	 	Associates Leasing Inc.
	 	 	01-085886	 	 	 	 	Equipment
	 
	 	 	 	 	 	 	 	 	 	 





Page 1 of 4









 






	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	Financing	 	 	 	 
	Filed With	 	Secured Party	 	Statement No.	 	Covering	 	Notice Only
	 
	Texas Secretary of State

	 	Citicorp Vendor

Finance, Inc
	 	 	01-123985	 	 	 	 	Equipment
	 
	 	 	 	 	 	 	 	 	 	 
	Texas Secretary of State

	 	xpedx (div. of
International Paper
Company)
	 	 	02-0002711891	 	 	 	 	Products received

on consignment
	 
	 	 	 	 	 	 	 	 	 	 
	Texas Secretary of State

	 	Cisco Systems Capital

Corporation
	 	 	02-0036598093	 	 	 	 	Equipment







	2.	 	NCI Operating Corp.





	 	 	 	 	 	 	 	 	 
	 	 	 	 	Financing	 	 	 	 
	Filed With	 	Secured Party	 	Statement No.	 	Covering	 	Notice Only
	 
	 
	 	 	 	 	 	 	 	 
	None








	3.	 	NCI Holding Corp.





	 	 	 	 	 	 	 	 	 
	 	 	 	 	Financing	 	 	 	 
	Filed With	 	Secured Party	 	Statement No.	 	Covering	 	Notice Only
	 
	 
	 	 	 	 	 	 	 	 
	None








	4.	 	NCI Building Systems, L.P.





	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	Financing	 	 	 	 
	Filed With	 	Secured Party	 	Statement No.	 	Covering	 	Notice Only
	 
	Texas Secretary of State

	 	Winthrop Resources

Corporation
	 	 	99-225230	 	 	 	 	Equipment
	 
	 	 	 	 	 	 	 	 	 	 
	Texas Secretary of State

	 	U.S. Bancorp Leasing
& Financial
	 	 	00-437979	 	 	 	 	Equipment
	 
	 	 	 	 	 	 	 	 	 	 
	Texas Secretary of State

	 	Inter-Tel Leasing Inc.
	 	 	00-506246	 	 	 	 	Equipment
	 
	 	 	 	 	 	 	 	 	 	 
	Texas Secretary of State

	 	Wells Fargo Equipment

Finance, Inc
	 	 	00-507561	 	 	 	 	Equipment
	 
	 	 	 	 	 	 	 	 	 	 
	Texas Secretary of State

	 	Associates Leasing Inc.
	 	 	00-539310	 	 	 	 	Equipment
	 
	 	 	 	 	 	 	 	 	 	 
	Texas Secretary of State

	 	U.S. Bancorp Leasing
& Financial
	 	 	00-542673	 	 	 	 	Equipment
	 
	 	 	 	 	 	 	 	 	 	 
	Texas Secretary of State

	 	General Electric Capital

Corporation
	 	 	00-646191	 	 	 	 	Equipment
	 
	 	 	 	 	 	 	 	 	 	 
	Texas Secretary of State

	 	Associates Leasing Inc.
	 	 	00-649546	 	 	 	 	Equipment
	 
	 	 	 	 	 	 	 	 	 	 
	Texas Secretary of State

	 	Associates Leasing Inc.
	 	 	01-001064	 	 	 	 	Equipment
	 
	 	 	 	 	 	 	 	 	 	 
	Texas Secretary of State

	 	U.S. Bancorp. Leasing
& Financial
	 	 	01-046171	 	 	 	 	Equipment
	 
	 	 	 	 	 	 	 	 	 	 
	Texas Secretary of State

	 	xpedx (div. of International
Paper Company)
	 	 	02-0002711891	 	 	 	 	Products

received on

consignment






Page 2 of 4









 





	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	Financing	 	 	 	 
	Filed With	 	Secured Party	 	Statement No.	 	Covering	 	Notice Only
	 
	Texas Secretary of State
	 	Sun Microsystems Finance,
a Sun Microsystems, Inc.
Business
	 	 	02-0037020418	 	 	 	 	Equipment
	 
	 	 	 	 	 	 	 	 	 	 
	Texas Secretary of State

	 	ISI Commercial
Refrigeration, L.P.
	 	 	03-0024180230	 	 	 	 	Equipment
	 
	 	 	 	 	 	 	 	 	 	 
	Texas Secretary of State
	 	Atlas Bolt & Screw
Company	 	 	03-0034023904	 	 	 	 	Consigned Inventory
	 
	 	 	 	 	 	 	 	 	 	 
	Delaware Secretary of State

	 	Inter-Tel Leasing, Inc.
	 	 	22689028	 	 	 	 	Equipment
	 
	 	 	 	 	 	 	 	 	 	 
	Delaware Secretary of State

	 	IOS Capital
	 	 	33023234	 	 	 	 	Equipment
	 
	 	 	 	 	 	 	 	 	 	 
	Delaware Secretary of State

	 	IOS Capital
	 	 	33023275	 	 	 	 	Equipment
	 
	 	 	 	 	 	 	 	 	 	 
	Delaware Secretary of State

	 	IOS Capital
	 	 	33343814	 	 	 	 	Equipment
	 
	 	 	 	 	 	 	 	 	 	 
	Delaware Secretary of State

	 	IOS Capital
	 	 	40518755	 	 	 	 	Equipment
	 
	 	 	 	 	 	 	 	 	 	 
	Delaware Secretary of State

	 	IOS Capital
	 	 	40518763	 	 	 	 	Equipment
	 
	 	 	 	 	 	 	 	 	 	 
	Delaware Secretary of State

	 	IOS Capital
	 	 	40518789	 	 	 	 	Equipment
	 
	 	 	 	 	 	 	 	 	 	 
	Delaware Secretary of State

	 	IOS Capital
	 	 	40518797	 	 	 	 	Equipment
	 
	 	 	 	 	 	 	 	 	 	 
	Delaware Secretary of State

	 	IOS Capital
	 	 	40720013	 	 	 	 	Equipment
	 
	 	 	 	 	 	 	 	 	 	 
	Delaware Secretary of State

	 	IOS Capital
	 	 	41353541	 	 	 	 	Equipment
	 
	 	 	 	 	 	 	 	 	 	 






	5.	 	A&S Building Systems, L.P.





	 	 	 	 	 	 	 	 	 
	 	 	 	 	Financing	 	 	 	 
	Filed With	 	Secured Party	 	Statement No.	 	Covering	 	Notice Only
	 
	Texas Secretary of State

	 	NEC America, Inc.
	 	01-139554
	 	 	 	Equipment







	6.	 	NCI Group, L.P. (f/k/a Metal Coaters Operating, L.P.)





	 	 	 	 	 	 	 	 	 
	 	 	 	 	Financing	 	 	 	 
	Filed With	 	Secured Party	 	Statement No.	 	Covering	 	Notice Only
	 
	Texas Secretary of State

	 	Wells Fargo Equipment
Finance, Inc.
	 	02-0010532124
	 	 	 	Equipment
	 
	 	 	 	 	 	 	 	 
	Texas Secretary of State

	 	Bethlehem Steel

Corporation
	 	02-0014180753
	 	 	 	Consigned Steel
	 
	 	 	 	 	 	 	 	 
	Texas Secretary of State

	 	Wells Fargo Bank,

National Association,

as Agent
	 	03-0025024682
	 	 	 	Consigned

Materials






Page 3 of 4









 







	7.	 	Metal Building Components, L.P. and/or Metal Building Components, Inc. and/or MBCI





	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	Financing	 	 	 	 
	Filed With	 	Secured Party	 	Statement No.	 	Covering	 	Notice Only
	 
	Texas Secretary of State

	 	Signode Corporation
	 	 	85-278476	 	 	 	 	Equipment
	 
	 	 	 	 	 	 	 	 	 	 
	Texas Secretary of State

	 	Associates Leasing, Inc.
	 	 	99-149005	 	 	 	 	Equipment
	 
	 	 	 	 	 	 	 	 	 	 
	Texas Secretary of State

	 	Associates Leasing, Inc.
	 	 	99-161548	 	 	 	 	Equipment
	 
	 	 	 	 	 	 	 	 	 	 
	Texas Secretary of State

	 	Linc Monex, a division
of Linc Capital, Inc.
	 	 	99-239713	 	 	 	 	Equipment
	 
	 	 	 	 	 	 	 	 	 	 
	Texas Secretary of State

	 	Mellon Leasing
	 	 	00-447846	 	 	 	 	Equipment
	 
	 	 	 	 	 	 	 	 	 	 
	Texas Secretary of State

	 	Associates Leasing, Inc.
	 	 	00-554701	 	 	 	 	Equipment
	 
	 	 	 	 	 	 	 	 	 	 
	Texas Secretary of State

	 	Citicorp Del Lease, Inc.
	 	 	01-006552	 	 	 	 	Equipment
	 
	 	 	 	 	 	 	 	 	 	 
	Texas Secretary of State

	 	U.S. Bancorp Equipment
Finance, Inc.
	 	 	04-0041133591	 	 	 	 	Equipment
	 
	 	 	 	 	 	 	 	 	 	 
	Hinds County, Mississippi

(1st district)

	 	Signode Corporation
	 	 	381721	 	 	 	 	Equipment







	8.	 	Metal Coaters of California, Inc.





	 	 	 	 	 	 	 	 	 
	 	 	 	 	Financing	 	 	 	 
	Filed With	 	Secured Party	 	Statement No.	 	Covering	 	Notice Only
	 
	Texas Secretary of State

	 	Bethlehem Steel

Corporation
	 	02-0014180642
	 	 	 	Consigned Steel
	 
	 	 	 	 	 	 	 	 
	Texas Secretary of State

	 	United States Steel

Corporation
	 	04-0058433219
	 	 	 	Consigned Steel






Page 4 of 4









 





Schedule 2.1(a)



SCHEDULE OF LENDERS AND

COMMITMENTS




	 	 	 	 	 	 	 	 	 	 	 
	Lender	 	[Redacted]*	 	[Redacted]*	 	[Redacted]*	 	[Redacted]*	 	[Redacted]*
	Wachovia Bank, National
Association

	 	[Redacted]*
	 	[Redacted]*
	 	[Redacted]*
	 	[Redacted]*
	 	[Redacted]*
	Allied Irish Banks, p.l.c.

	 	[Redacted]*
	 	[Redacted]*
	 	[Redacted]*
	 	[Redacted]*
	 	[Redacted]*
	Bank of America, N.A.

	 	[Redacted]*
	 	[Redacted]*
	 	[Redacted]*
	 	[Redacted]*
	 	[Redacted]*
	BNP Paribas

	 	[Redacted]*
	 	[Redacted]*
	 	[Redacted]*
	 	[Redacted]*
	 	[Redacted]*
	Credit Industriel et Commercial

	 	[Redacted]*
	 	[Redacted]*
	 	[Redacted]*
	 	[Redacted]*
	 	[Redacted]*
	Cooperatieve Centrale
Raiffeisen-Boerenleenbank B.V.
“Rabobank International”, New
York Branch

	 	[Redacted]*
	 	[Redacted]*
	 	[Redacted]*
	 	[Redacted]*
	 	[Redacted]*
	General Electric Capital
Corporation

	 	[Redacted]*
	 	[Redacted]*
	 	[Redacted]*
	 	[Redacted]*
	 	[Redacted]*
	Guaranty Bank

	 	[Redacted]*
	 	[Redacted]*
	 	[Redacted]*
	 	[Redacted]*
	 	[Redacted]*
	National City Bank

	 	[Redacted]*
	 	[Redacted]*
	 	[Redacted]*
	 	[Redacted]*
	 	[Redacted]*
	Southwest Bank of Texas, N.A.

	 	[Redacted]*
	 	[Redacted]*
	 	[Redacted]*
	 	[Redacted]*
	 	[Redacted]*
	Washington Mutual Bank

	 	[Redacted]*
	 	[Redacted]*
	 	[Redacted]*
	 	[Redacted]*
	 	[Redacted]*
	Total:

	 	[Redacted]*
	 	[Redacted]*
	 	[Redacted]*
	 	[Redacted]*
	 	[Redacted]*






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














 





Schedule 2.1(b)(i)




[FORM OF]

NOTICE OF BORROWING



                    , 2004



Wachovia Bank, National Association,

as Administrative Agent

Charlotte Plaza

201 South College Street, CP-8

Charlotte, North Carolina 28288-0680

Attn: Syndication Agency Services



Ladies and Gentlemen:




     Pursuant to Section [2.1(b)(i)][2.4(b)(i)][4.3(b)] of the Credit Agreement, dated as of June
18, 2004 (as amended, restated or otherwise modified, the “Credit Agreement”), by and among
NCI Building Systems, Inc., a Delaware corporation (the “Borrower”), the Domestic
Subsidiaries of the Borrower from time to time party thereto (collectively the
“Guarantors”), the lenders from time to time party thereto (the “Lenders”) and
Wachovia Bank, National Association, as Administrative Agent for the Lenders (the
“Administrative Agent”), the Borrower hereby requests the following (the “Proposed
Borrowing”):




	I.	 	Revolving Loans be made as follows:





	 	 	 	 	 	 	 
	 	 	 	 	Interest	 	Interest
	 	 	 	 	Rate	 	Period
	 	 	 	 	(Alternate Base	 	(One, two, three or six months—
	Date	 	Amount	 	Rate/LIBOR Rate)	 	for LIBOR Rate only)
	 
	 	 
	 	 
	 	 
	 	 	 	 	 	 	 
	 
	 	 
	 	 
	 	 
	 	 	 	 	 	 	 
	 
	 	 
	 	 
	 	 
	 	 	 	 	 	 	 
	 
	 	 
	 	 
	 	 
	 	 	 	 	 	 	 
	 
	 	 
	 	 
	 	 






			
	      NOTE:	 	BORROWINGS MUST BE IN MINIMUM AGGREGATE DOLLAR AMOUNTS OF $1,000,000 AND
$1,000,000 INCREMENTS IN EXCESS THEREOF.






	II.	 	Swingline Loans be made on [date] as follows:
	 
	 	 	Swingline Loans requested:






	 	(1)	 	Total Amount of Swingline Loans                      $                    






			
	      NOTE:	 	SWINGLINE LOAN BORROWINGS MUST BE IN MINIMUM AMOUNTS OF $100,000 AND IN
INTEGRAL AMOUNTS OF $100,000 IN EXCESS THEREOF.




III. The Tranche B Term Loan be made on                                          [must be at least three Business Days
after the date this Notice of Borrowing is submitted].




     Terms defined in the Credit Agreement shall have the same meanings when used herein.













 





     The undersigned hereby certifies that the following statements are true on the date hereof and
will be true on the date of the Proposed Borrowing:




     (A) the representations and warranties made by the Credit Parties in the Credit
Agreement, in the Security Documents or which are contained in any certificate furnished at
any time under or in connection therewith shall be true and correct on and as of the date of
the Proposed Borrowing as if made on and as of such date;




     (B) no Default or Event of Default shall have occurred and be continuing on the date of
the Proposed Borrowing, or after giving effect to the Proposed Borrowing; and




     (C) immediately after giving effect to the making of the Proposed Borrowing (and the
application of the proceeds thereof), (i) the sum of outstanding Revolving Loans plus
outstanding LOC Obligations plus outstanding Swingline Loans shall not exceed the Revolving
Committed Amount, (ii) the LOC Obligations shall not exceed the LOC Committed Amount and
(iii) the Swingline Loans shall not exceed the Swingline Committed Amount.



	 	 	 	 	 
	 	Very truly yours,



NCI BUILDING SYSTEMS, INC.,

a Delaware corporation

 	 
	 	By:  	 	 
	 	Name:  	 	 
	 	Title:  	 	 
	 














 





Schedule 2.1(e)




[FORM OF]

REVOLVING NOTE



                    , 200___




     FOR VALUE RECEIVED, the undersigned, NCI BUILDING SYSTEMS, INC., a Delaware corporation (the
“Borrower”) hereby unconditionally promises to pay, on the Revolving Commitment Termination
Date (as defined in the Credit Agreement referred to below), to the order of                      (the
“Lender”) at the office of Wachovia Bank, National Association located at Charlotte Plaza,
201 South College Street, CP-8, Charlotte, North Carolina 28288-0680, in lawful money of the
United States of America and in immediately available funds, the aggregate unpaid principal amount
of all Revolving Loans made by the Lender to the undersigned pursuant to Section 2.1 of the Credit
Agreement referred to below. The undersigned further agrees to pay interest in like money at such
office on the unpaid principal amount hereof and, to the extent permitted by law, accrued interest
in respect hereof from time to time from the date hereof until payment in full of the principal
amount hereof and accrued interest hereon, at the rates and on the dates set forth in the Credit
Agreement.



     The holder of this Note is authorized to endorse the date and amount of each Loan pursuant to
Section 2.1 of the Credit Agreement and each payment of principal and interest with respect thereto
and its character as a LIBOR Rate Loan or an Alternate Base Rate Loan on Schedule I annexed
hereto and made a part hereof, or on a continuation thereof which shall be attached hereto and made
a part hereof, which endorsement shall constitute prima facie evidence of the accuracy of
the information endorsed (absent error); provided, however, that the failure to
make any such endorsement shall not affect the obligations of the undersigned under this Note.



     This Note is one of the Revolving Notes referred to in the Credit Agreement, dated as of June
18, 2004 (as amended, restated or otherwise modified, the “Credit Agreement”), by and among
the Borrower, the Domestic Subsidiaries of the Borrower from time to time party thereto
(collectively the “Guarantors”), the lenders from time to time party thereto (the
“Lenders”) and Wachovia Bank, National Association, as Administrative Agent for the Lenders
(the “Administrative Agent”), and is entitled to the benefits thereof. Capitalized terms
used but not otherwise defined herein shall have the meanings provided in the Credit Agreement.



     Upon the occurrence of any one or more of the Events of Default specified in the Credit
Agreement, all amounts then remaining unpaid on this Note shall become, or may be declared to be,
immediately due and payable, all as provided therein. In the event this Note is not paid when due
at any stated or accelerated maturity, the Borrower agrees to pay, in addition to principal and
interest, all costs of collection, including reasonable attorneys’ fees.



     All parties now and hereafter liable with respect to this Note, whether maker, principal,
surety, endorser or otherwise, hereby waive presentment, demand, protest and all other notices of
any kind.



     THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF
THE STATE OF NORTH CAROLINA.



	 	 	 	 	 
	 	NCI BUILDING SYSTEMS, INC.,

a Delaware corporation

 	 
	 	By:  	
 	 
	 	Name:  	 	 
	 	Title:  	 	 
	 














 





SCHEDULE 1

to

Revolving Note




LOANS AND PAYMENTS OF PRINCIPAL



	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	Principal	 	 	 	 
	 	 	Amount	 	Type	 	 	 	 	 	 	 	Paid	 	 	 	 
	 	 	Of	 	of	 	Interest	 	Interest	 	Maturity	 	or	 	Principal	 	Notation
	Date	 	Loan	 	Loan1	 	Rate	 	Period	 	Date	 	Converted	 	Balance	 	Made By
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 







 




			
	1	 	The type of Loan may be represented by “L”
for LIBOR Rate Loans or “ABR” for Alternate Base Rate Loans.


















 





Schedule 2.2(d)




[FORM OF]

TRANCHE B TERM NOTE



                    , 2004




     FOR VALUE RECEIVED, the undersigned, NCI BUILDING SYSTEMS, INC., a Delaware corporation (the
“Borrower”) hereby unconditionally promises to pay, on the Tranche B. Term Loan Maturity
Date (as defined in the Credit Agreement referred to below), to the order of                      (the
“Lender”) at the office of Wachovia Bank, National Association at Charlotte Plaza, 201
South College Street, CP-8, Charlotte, North Carolina 28288-0680, in lawful money of the United
States of America and in immediately available funds, the aggregate unpaid principal amount of the
Tranche B Term Loan made by the Lender to the undersigned pursuant to Section 2.2 of the Credit
Agreement referred to below. The undersigned further agrees to pay interest in like money at such
office on the unpaid principal amount hereof and, to the extent permitted by law, accrued interest
in respect hereof from time to time from the date hereof until payment in full of the principal
amount hereof and accrued interest hereon, at the rates and on the dates set forth in the Credit
Agreement.



     The holder of this Note is authorized to endorse the date and amount of each payment of
principal and interest with respect to the Tranche B Term Loan evidenced by this Note and the
portion thereof that constitutes a LIBOR Rate Loan or an Alternate Base Rate Loan on Schedule
I annexed hereto and made a part hereof, or on a continuation thereof which shall be attached
hereto and made a part hereof, which endorsement shall constitute prima facie evidence of
the accuracy of the information endorsed (absent error); provided, however, that
the failure to make any such endorsement shall not affect the obligations of the undersigned under
this Note.



     This Note is one of the Tranche B Term Notes referred to in the Credit Agreement, dated as of
June 18, 2004 (as amended, restated or otherwise modified, the “Credit Agreement”), by and
among the Borrower, the Domestic Subsidiaries of the Borrower from time to time party thereto
(collectively the “Guarantors”), the lenders from time to time party thereto (the
“Lenders”) and Wachovia Bank, National Association, as Administrative Agent for the Lenders
(the “Administrative Agent”), and is entitled to the benefits thereof. Capitalized terms
used but not otherwise defined herein shall have the meanings provided in the Credit Agreement.



     Upon the occurrence of any one or more of the Events of Default specified in the Credit
Agreement, all amounts then remaining unpaid on this Note shall become, or may be declared to be,
immediately due and payable, all as provided therein. In the event this Note is not paid when due
at any stated or accelerated maturity, the Borrower agrees to pay, in addition to principal and
interest, all costs of collection, including reasonable attorneys’ fees.



     All parties now and hereafter liable with respect to this Note, whether maker, principal,
surety, endorser or otherwise, hereby waive presentment, demand, protest and all other notices of
any kind.



     THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF
THE STATE OF NORTH CAROLINA.



	 	 	 	 	 	 	 
	 	 	NCI BUILDING SYSTEMS, INC.,	 	 
	 	 	a Delaware corporation	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	Name:
	 	 

	 	 
	 

	 	Title:
	 	 

	 	 
	 

	 	 	 	 

	 	 






 









 





SCHEDULE 1

to

Tranche B Term Note




LOANS AND PAYMENTS OF PRINCIPAL



	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	Principal	 	 	 	 
	 	 	Amount	 	Type	 	 	 	 	 	 	 	Paid	 	 	 	 
	 	 	of	 	of	 	Interest	 	Interest	 	Maturity	 	Or	 	Principal	 	Notation
	Date	 	Loan	 	Loan1	 	Rate	 	Period	 	Date	 	Converted	 	Balance	 	Made By
	 

	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 







 




			
	1	 	The type of Loan may be represented by “L”
for LIBOR Rate Loans or “ABR” for Alternate Base Rate Loans.




 









 










Schedule 2.4(d)




[FORM OF]

SWINGLINE NOTE



                    , 2004




     FOR VALUE RECEIVED, the undersigned, NCI BUILDING SYSTEMS, INC., a Delaware corporation (the
“Borrower”) hereby unconditionally promises to pay on the Revolving Commitment Termination
Date (as defined in the Credit Agreement referred to below), to the order of WACHOVIA BANK,
NATIONAL ASSOCIATION (the “Swingline Lender”) at the office of Wachovia Bank, National
Association at Charlotte Plaza, 201 South College Street, CP-8, Charlotte, North Carolina
28288-0680, in lawful money of the United States of America and in immediately available funds, the
aggregate unpaid principal amount of all Swingline Loans made by the Swingline Lender to the
undersigned pursuant to Section 2.4 of the Credit Agreement referred to below. The undersigned
further agrees to pay interest in like money at such office on the unpaid principal amount hereof
and, to the extent permitted by law, accrued interest in respect hereof from time to time from the
date hereof until payment in full of the principal amount hereof and accrued interest hereon, at
the rates and on the dates set forth in the Credit Agreement.



     The holder of this Note is authorized to endorse the date and amount of each Swingline Loan
pursuant to Section 2.4 of the Credit Agreement and each payment of principal and interest with
respect thereto and its character as an Alternate Base Rate Loan or otherwise on Schedule I
annexed hereto and made a part hereof, or on a continuation thereof which shall be attached hereto
and made a part hereof, which endorsement shall constitute prima facie evidence of the
accuracy of the information endorsed (absent error); provided, however, that the
failure to make any such endorsement shall not affect the obligations of the undersigned under this
Note.



     This Note is the Swingline Note referred to in the Credit Agreement, dated as of June 18, 2004
(as amended, restated or otherwise modified, the “Credit Agreement”), by and among the
Borrower, the Domestic Subsidiaries of the Borrower from time to time party thereto (collectively
the “Guarantors”), the lenders from time to time party thereto (the “Lenders”) and
Wachovia Bank, National Association, as Administrative Agent for the Lenders (the
“Administrative Agent”), and is entitled to the benefits thereof. Capitalized terms used
but not otherwise defined herein shall have the meanings provided in the Credit Agreement.



     Upon the occurrence of any one or more of the Events of Default specified in the Credit
Agreement, all amounts then remaining unpaid on this Note shall become, or may be declared to be,
immediately due and payable, all as provided therein. In the event this Note is not paid when due
at any stated or accelerated maturity, the Borrower agrees to pay, in addition to principal and
interest, all costs of collection, including reasonable attorneys’ fees.



     All parties now and hereafter liable with respect to this Note, whether maker, principal,
surety, endorser or otherwise, hereby waive presentment, demand, protest and all other notices of
any kind.



     THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF
THE STATE OF NORTH CAROLINA.



	 	 	 	 	 	 	 
	 	 	NCI BUILDING SYSTEMS, INC.,	 	 
	 	 	a Delaware corporation	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	Name:
	 	 

	 	 
	 

	 	Title:
	 	 

	 	 
	 

	 	 	 	 

	 	 






 









 






SCHEDULE 1

to

Swingline Note




LOANS AND PAYMENTS OF PRINCIPAL



	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	Amount	 	Type	 	 	 	 	 	 	 	 
	 	 	of	 	of	 	Interest	 	Principal	 	Principal	 	Notation
	Date	 	Loan	 	Loan	 	Rate	 	Paid	 	Balance	 	Made By
	 

	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 
	 	 
	 	 
	 	 
	 	 
	 	 









 









 








Schedule 2.10




[FORM OF]

NOTICE OF CONVERSION/EXTENSION



                    , 2004



Wachovia Bank, National Association,

as Administrative Agent

Charlotte Plaza

201 South College Street, CP-8

Charlotte, North Carolina 28288-0680

Attn: Syndication Agency Services



Ladies and Gentlemen:




     Pursuant to Section 2.10 of the Credit Agreement, dated as of June 18, 2004 (as amended,
restated or otherwise modified, the “Credit Agreement”), by and among NCI Building Systems,
Inc., a Delaware corporation (the “Borrower”), the Domestic Subsidiaries of the Borrower
from time to time party thereto (collectively the “Guarantors”), the lenders from time to
time party thereto (the “Lenders”) and Wachovia Bank, National Association, as
Administrative Agent for the Lenders (the “Administrative Agent”), the Borrower hereby
requests ___conversion or ___extension of the following Loans be made as follows (the
“Proposed Conversion/Extension”):



	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	Requested Interest	 	 	Requested Interest	 
	 	 	Current Interest	 	 	 	 	 	 	 	 	 	 	Rate	 	 	Period	 
	Applicable	 	Rate and Interest	 	 	 	 	 	 	Amount to be	 	 	(Alternate Base	 	 	(One, two, three or six months-	 
	Loan	 	Period	 	 	Date	 	 	converted/extended	 	 	Rate/LIBOR Rate)	 	 	- for LIBOR Rate only)	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 






	 	NOTE: 	 	PARTIAL CONVERSIONS MUST BE IN MINIMUM AMOUNTS OF $1,000,000 AND $1,000,000
INCREMENTS IN EXCESS THEREOF.





     Terms defined in the Credit Agreement shall have the same meanings when used herein.



     The undersigned hereby certifies that the following statements are true on the date hereof and
will be true on the date of the Proposed Conversion/Extension:




     (A) the representations and warranties made by the Credit Parties in the Credit
Agreement, in the Security Documents or which are contained in any certificate furnished at
any time under or in connection therewith shall be true and correct on and as of the date of
the Proposed Conversion/Extension as if made on and as of such date;




     (B) no Default or Event of Default will have occurred and be continuing on the date of
the Proposed Conversion/Extension, or after giving effect to the Proposed
Conversion/Extension; and




     (C) immediately after giving effect to the making of the Proposed Conversion/Extension,
(i) the sum of outstanding Revolving Loans plus outstanding LOC Obligations plus outstanding
Swingline Loans shall not exceed the Revolving Committed Amount, (ii) the LOC Obligations
shall not exceed the LOC Committed Amount and (iii) the Swingline Loans shall not exceed the
Swingline Committed Amount.



 









 





	 	 	 	 	 	 	 
	 	 	Very truly yours,	 	 
	 
	 	 	 	 	 	 
	 	 	NCI BUILDING SYSTEMS, INC.,	 	 
	 	 	a Delaware corporation	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	Name:
	 	 

	 	 
	 

	 	Title:
	 	 

	 	 
	 

	 	 	 	 

	 	 










 









 








Schedule 2.18




TAX EXEMPT CERTIFICATE



     Reference is hereby made to the Credit Agreement, dated as of June 18, 2004 (as amended,
restated or otherwise modified, the “Credit Agreement”), by and among NCI Building Systems,
Inc., a Delaware corporation (the “Borrower”), the Domestic Subsidiaries of the Borrower
from time to time party thereto (collectively the “Guarantors”), the lenders from time to
time party thereto (the “Lenders”) and Wachovia Bank, National Association, as
Administrative Agent for the Lenders (the “Administrative Agent”). Pursuant to the
provisions of Section 2.18 of the Credit Agreement, the undersigned hereby certifies that it is not
a “bank” as such term is used in Section 881(c)(3)(A) of the Internal Revenue Code of 1986, as
amended.



	 	 	 	 	 	 	 
	 	 	[NAME OF LENDER]	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	Name:
	 	 

	 	 
	 

	 	Title:
	 	 

	 	 
	 

	 	 	 	 

	 	 






 









 





SCHEDULE 3.3




JURISDICTIONS OF ORGANIZATION AND QUALIFICATION



	 	 	 	 	 	 	 
	 	 	 	 	JURISDICTION OF	 	 
	 	 	 	 	INCORPORATION	 	JURISDICTION OF
	 	 	COMPANY	 	OR ORGANIZATION	 	QUALIFICATION
	1.

	 	NCI Building Systems, Inc.
	 	Delaware
	 	Texas
	 
	 	 	 	 	 	 
	2.

	 	NCI Operating Corp.
	 	Nevada
	 	California
	 

	 	 	 	 	 	Florida
	 

	 	 	 	 	 	Georgia
	 

	 	 	 	 	 	Illinois
	 

	 	 	 	 	 	Massachusetts
	 

	 	 	 	 	 	Michigan
	 

	 	 	 	 	 	Mississippi
	 

	 	 	 	 	 	North Dakota
	 

	 	 	 	 	 	Ohio
	 

	 	 	 	 	 	Oregon
	 

	 	 	 	 	 	South Carolina

Texas
	 

	 	 	 	 	 	Utah
	 

	 	 	 	 	 	Virginia
	 
	 	 	 	 	 	 
	3.

	 	NCI Holding Corp.
	 	Delaware
	 	None
	 
	 	 	 	 	 	 
	4.

	 	Metal Coaters of California, Inc.
	 	Texas
	 	California
	 
	 	 	 	 	 	 
	5.

	 	A & S Building Systems, L.P.
	 	Texas
	 	Florida
	 

	 	 	 	 	 	Michigan
	 

	 	 	 	 	 	South Carolina
	 

	 	 	 	 	 	Tennessee






 Page 1 of  3  









 





	 	 	 	 	 	 	 
	 	 	 	 	JURISDICTION OF	 	 
	 	 	 	 	INCORPORATION	 	JURISDICTION OF
	 	 	COMPANY	 	OR ORGANIZATION	 	QUALIFICATION
	6.

	 	NCI Building Systems, L.P.
	 	Texas
	 	Alabama
	 

	 	 	 	 	 	Arizona
	 

	 	 	 	 	 	California
	 

	 	 	 	 	 	Florida
	 

	 	 	 	 	 	Georgia
	 

	 	 	 	 	 	Illinois
	 

	 	 	 	 	 	Iowa
	 

	 	 	 	 	 	Massachusetts
	 

	 	 	 	 	 	Mississippi
	 

	 	 	 	 	 	New Mexico
	 

	 	 	 	 	 	North Carolina
	 

	 	 	 	 	 	Ohio
	 

	 	 	 	 	 	Oklahoma
	 

	 	 	 	 	 	South Carolina
	 

	 	 	 	 	 	Wisconsin
	 
	 	 	 	 	 	 
	7.

	 	Metal Building Components, L.P.
	 	Texas
	 	Arizona
	 

	 	 	 	 	 	California
	 

	 	 	 	 	 	Florida
	 

	 	 	 	 	 	Georgia
	 

	 	 	 	 	 	Idaho
	 

	 	 	 	 	 	Indiana
	 

	 	 	 	 	 	Iowa
	 

	 	 	 	 	 	Kentucky
	 

	 	 	 	 	 	Michigan
	 

	 	 	 	 	 	Mississippi
	 

	 	 	 	 	 	Nebraska
	 

	 	 	 	 	 	New Jersey
	 

	 	 	 	 	 	New York
	 

	 	 	 	 	 	North Dakota
	 

	 	 	 	 	 	Oklahoma
	 

	 	 	 	 	 	Pennsylvania
	 

	 	 	 	 	 	Tennessee
	 

	 	 	 	 	 	Utah
	 

	 	 	 	 	 	Virginia






 Page 2 of  3  









 





	 	 	 	 	 	 	 
	 	 	 	 	JURISDICTION OF	 	 
	 	 	 	 	INCORPORATION	 	JURISDICTION OF
	 	 	COMPANY	 	OR ORGANIZATION	 	QUALIFICATION
	8.

	 	NCI Group, L.P.
	 	Texas
	 	Alabama
	 

	 	 	 	 	 	Arizona
	 

	 	 	 	 	 	Arkansas
	 

	 	 	 	 	 	California
	 

	 	 	 	 	 	Colorado
	 

	 	 	 	 	 	Florida
	 

	 	 	 	 	 	Georgia
	 

	 	 	 	 	 	Idaho
	 

	 	 	 	 	 	Illinois
	 

	 	 	 	 	 	Indiana
	 

	 	 	 	 	 	Iowa
	 

	 	 	 	 	 	Kansas
	 

	 	 	 	 	 	Kentucky
	 

	 	 	 	 	 	Louisiana
	 

	 	 	 	 	 	Massachusetts
	 

	 	 	 	 	 	Michigan
	 

	 	 	 	 	 	Minnesota
	 

	 	 	 	 	 	Mississippi
	 

	 	 	 	 	 	Missouri
	 

	 	 	 	 	 	Nebraska
	 

	 	 	 	 	 	Nevada
	 

	 	 	 	 	 	New Jersey
	 

	 	 	 	 	 	New Mexico
	 

	 	 	 	 	 	New York
	 

	 	 	 	 	 	North Carolina
	 

	 	 	 	 	 	Ohio
	 

	 	 	 	 	 	Oklahoma
	 

	 	 	 	 	 	Oregon
	 

	 	 	 	 	 	Pennsylvania
	 

	 	 	 	 	 	South Carolina
	 

	 	 	 	 	 	Tennessee
	 

	 	 	 	 	 	Utah
	 

	 	 	 	 	 	Virginia
	 

	 	 	 	 	 	Washington
	 

	 	 	 	 	 	West Virginia
	 

	 	 	 	 	 	Wisconsin






 Page 3 of  3  









 




SCHEDULE 3.12


SUBSIDIARIES



	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	Jurisdiction	 	No. of	 	 	 	Owner of	 	No. of	 	Percentage
	 	 	of	 	Outstanding	 	Outstanding	 	Outstanding	 	Shares/	 	of Shares/
	 	 	Incorporation	 	Shares/	 	Warrants,	 	Shares/	 	Interests	 	Interests
	Subsidiary	 	/Organization	 	Interests	 	Options, Etc.	 	Interests	 	Owned	 	Owned
	Building Systems de
México, S.A. de
C.V.

	 	Mexican
Stock corporation
with variable
capital
(domiciled in
Monterrey)
	 	50,000 Series A
Shares One and
00/100 Mexican
Pesos (MX. 1.00)
par value
(fixed cap.)


Series B Shares One
and 00/100 Mexican
Pesos (MX. 1.00)
par value
(variable cap.)
	 	N/A








N/A	 	NCI Building Systems, Inc.

Empresas STIVA,
S.A. de C.V. 




NCI Building
Systems, Inc.

 Empresas STIVA,
S.A. de C.V.	 	 	25,500

24,500






30,702,143


29,486,710	 	 	 	51

49






51


49	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	NCI Operating
Corp.

	 	Nevada
	 	1,000 shares of
common stock, $1.00
par value
	 	N/A
	 	NCI Building
Systems, Inc.
	 	 	1,000	 	 	 	100	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	NCI Holding Corp.

	 	Delaware
	 	1,000 shares of
common stock, $1.00
par value
	 	N/A
	 	NCI Building
Systems, Inc.
	 	 	1,000	 	 	 	100	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Metal Coaters of
California, Inc.

	 	Texas
	 	10,000 shares of
common stock, $0.10
par value
	 	N/A
	 	NCI Holding Corp.
	 	 	10,000	 	 	 	100	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	A&S Building
Systems, L.P.

	 	Texas
	 	general partnership

interest


limited partnership

interest
	 	N/A
	 	NCI Operating Corp.



NCI Holding Corp.	 	 	N/A



N/A	 	 	 	1



99	 






Page 1 of 2 








 






	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	Jurisdiction	 	No. of	 	 	 	Owner of	 	No. of	 	 
	 	 	of	 	Outstanding	 	Outstanding	 	Outstanding	 	Shares/	 	Percentage
	 	 	Incorporation	 	Shares/	 	Warrants,	 	Shares/	 	Interests	 	of Shares/
	Subsidiary	 	/Organization	 	Interests	 	Options, Etc.	 	Interests	 	Owned	 	Interests Owned
	NCI Building
Systems, L.P.

	 	Texas
	 	general partnership
interest

limited
partnership
interest
	 	N/A
	 	NCI Operating Corp.


NCI Holding Corp.
	 	N/A


N/A
	 	1


99
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	Metal Building
Components, L.P.

	 	Texas
	 	general partnership
interest


limited partnership
interest
	 	N/A
	 	NCI Operating Corp.


NCI Holding Corp.	 	N/A


N/A	 	1


99
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	NCI Group, L.P.

	 	Texas
	 	general partnership
interest


limited partnership
interest
	 	N/A
	 	NCI Operating Corp.


NCI Holding Corp.	 	N/A


N/A	 	1


99







Page 2 of 2 









 








SCHEDULE 3.16




INTELLECTUAL PROPERTY




	 	 	Owned Intellectual Property:





	 	 	 	 	 
	Registered Trademarks	 	Registration/Serial No.	 	Owner
	Retro-R
	 	1,906,296	 	NCI Building Systems, L.P.
	Royal K-70
	 	2,025,884	 	NCI Building Systems, L.P.
	Dura 20
	 	2,037,498	 	NCI Building Systems, L.P.
	Metallic Building Company
	 	2,110,344	 	NCI Building Systems, L.P.
	Metallic and design
	 	623,865	 	NCI Building Systems, L.P.
	NCI & design
	 	2,028,845	 	NCI Building Systems, L.P.
	AAS (miscellaneous design)
	 	2,035,454	 	NCI Building Systems, L.P.
	A&S Building Systems
	 	2,028,846	 	NCI Building Systems, L.P.
	Mid-West Steel Building Company
	 	2,040,247	 	NCI Building Systems, L.P.
	Design logo for Midwest Steel
	 	2,030,148	 	NCI Building Systems, L.P.
	ARS & design
	 	2,030,149	 	NCI Building Systems, L.P.
	Value Express & design
	 	2,054,529	 	NCI Building Systems, L.P.
	NCI Express & design
	 	2,052,295	 	NCI Building Systems, L.P.
	NCI Building Components
	 	2,028,844	 	NCI Building Systems, L.P.
	NCI
	 	2,079,167	 	NCI Building Systems, L.P.
	DBCI
	 	2,071,877	 	NCI Building Systems, L.P.
	Metallic
	 	2,119,193	 	NCI Building Systems, L.P.
	Verti-Loc
	 	2,085,914	 	NCI Building Systems, L.P.
	Vistasheen
	 	2,335,371	 	A&S Building Systems, L.P.
	Vistacolor
	 	2,335,370	 	A&S Building Systems, L.P.
	VistaShadow
	 	2,335,369	 	A&S Building Systems, L.P.
	Architectural Loc
	 	2,202,364	 	NCI Building Systems, L.P.
	SS216
	 	2,169,345	 	NCI Building Systems, L.P.
	Mesco & design
	 	1,055,914	 	NCI Building Systems, L.P.
	Mesco and design
	 	1,069,517	 	NCI Building Systems, L.P.
	Classic Steel Frame Homes
	 	2,183,547	 	NCI Building Systems, L.P.
	ECI and design
	 	2,296,476	 	NCI Building Systems, L.P.
	IPS & design
	 	2,196,662	 	NCI Building Systems, L.P.
	Battenlok
	 	1,686,016	 	Metal Building Components, L.P.
	Signature
	 	1,750,427	 	Metal Building Components, L.P.
	Ultra-Dek 124
	 	1,310,768	 	Metal Building Components, L.P.
	Double-Lok 124
	 	1,613,519	 	Metal Building Components, L.P.
	Lokseam
	 	1,684,278	 	Metal Building Components, L.P.
	MBCI and design
	 	1,424,579	 	Metal Building Components, L.P.
	NuRoof
	 	1,917,593	 	Metal Building Components, L.P.






Page 1 of 12 









 






	 	 	 	 	 
	Registered Trademarks	 	Registration/Serial No.	 	Owner
	FlexLoc
	 	1,950,005	 	Metal Building Components, L.P.
	Imperial Rib
	 	1,980,366	 	Metal Building Components, L.P.
	ABC American Building
Components
	 	1,926,989	 	Metal Building Components, L.P.
	Monarch Rib
	 	1,905,298	 	Metal Building Components, L.P.
	MBCI (and design)
	 	1,206,560	 	Metal Building Components, L.P.
	Regal Rib
	 	1,082,255	 	Metal Building Components, L.P.
	Rugged Rib
	 	1,171,944	 	Metal Building Components, L.P.
	Ajax
	 	0,236,307	 	Metal Building Components, L.P.
	NuWall
	 	2,281,230	 	Metal Building Components, L.P.
	SuperLok
	 	2,161,830	 	Metal Building Components, L.P.
	StormProof
	 	2,277,089	 	Metal Building Components, L.P.
	Rain Guard
	 	2,192,159	 	Metal Building Components, L.P.
	Classic
	 	2,256,416	 	Metal Building Components, L.P.
	Perma-Clad
	 	2,193,540	 	Metal Building Components, L.P.
	Artisan
	 	2,262,021	 	Metal Building Components, L.P.
	LiteFrame
	 	2,266,112	 	Metal Building Components, L.P.
	Traditional
	 	2,286,987	 	Metal Building Components, L.P.
	SlimLine
	 	2,192,160	 	Metal Building Components, L.P.
	Royal Lock
	 	2,770,513	 	Metal Building Components, L.P.
	Ameri-Drain
	 	2,264,507	 	Metal Building Components, L.P.
	Supra-Rib
	 	2,647,624	 	Metal Building Components, L.P.
	7/8” Wide Rib
	 	2,478,821	 	Metal Building Components, L.P.
	3/4” High Rib
	 	2,450,419	 	Metal Building Components, L.P.
	S-36
	 	2,262,735	 	Metal Building Components, Inc.
	BI-36
	 	2,266,746	 	Metal Building Components, Inc.
	B-36
	 	2,259,247	 	Metal Building Components, Inc.
	Metal Coaters and design
	 	1,675,343	 	NCI Group, L.P.
	DOUBLECOTE
	 	2,005,583	 	NCI Group, L.P.
	Long Bay System
	 	2,485,858	 	NCI Building Systems, L.P.
	SL-16
	 	2,359,209	 	Metal Building Components, L.P.
	Millennium
	 	2,458,977	 	Metal Building Components, L.P.
	WeatherSafe
	 	2,489,812	 	Metal Building Components, L.P.
	Metal-Prep and design
	 	1,663,644	 	NCI Group, L.P.
	Speedy Steel Garages
	 	2,581,159	 	Metal Building Components, L.P.
	Tuff-Shield
	 	2,662,600	 	NCI Building Systems, L.P.
	Classic Steel Frame Homes and
design
	 	2,741,396	 	NCI Building Systems, L.P.
	DBCI and design
	 	76/437479 (pending)	 	NCI Building Systems, L.P.
	A&S and design
	 	76/437478 (pending)	 	NCI Building Systems, L.P.
	SS Steel System and design
	 	76/496573 (pending)	 	NCI Building Systems, L.P.
	Tri-Lok
	 	76/473638 (pending)	 	Metal Building Components, L.P.






Page 2 of 12 









 






	 	 	 	 	 
	Registered Trademarks	 	Registration/Serial No.	 	Owner
	NCI Metal Depots and design
	 	76/473683 (pending)	 	NCI Building Systems, L.P.
	Tri-Lok Plus
	 	76/510575 (pending)	 	Metal Building Components, L.P.
	Ultra-Dek
	 	76/559837 (pending)	 	Metal Building Components, L.P.
	Classic Steel Frame Homes
	 	822443252 (Brazil)	 	NCI Building Systems, L.P.
	Building Systems de Mexico
	 	595314 (Mexico)	 	NCI Building Systems, L.P.
	Building Systems de Mexico
	 	595315 (Mexico)	 	NCI Building Systems, L.P.
	Metallic and design
	 	593415 (Mexico)	 	NCI Building Systems, L.P.
	Metallic and design
	 	595316 (Mexico)	 	NCI Building Systems, L.P.
	BSM and design
	 	595317 (Mexico)	 	NCI Building Systems, L.P.
	BSM and design
	 	593416 (Mexico)	 	NCI Building Systems, L.P.
	Metallic and design
	 	515413 (Mexico)	 	NCI Building Systems, L.P.
	Metallic and design
	 	556035 (Mexico)	 	NCI Building Systems, L.P.
	Metallic Building Company
	 	546893 (Mexico)	 	NCI Building Systems, L.P.






	 	 	 	 	 
	Patent Title	 	Patent/Application No.	 	Owner
	Apparatus and
Method for
Retrofitting a
Metal Roof
	 	5402572	 	NCI Building Systems, L.P.
	Vented Closure
	 	5605022	 	NCI Building Systems, L.P.
	Apparatus for
Retrofitting a
Metal Roof
	 	5855101	 	NCI Building Systems, L.P.
	Cinch Strap and
Backup Plate for
Metal Roof Endlap
Joint
	 	4655020	 	Metal Building Components, L.P.
	Structural Member
for Use in the
Construction of
Buildings
	 	6519908	 	NCI Building Systems, L.P.
	Tension Device For
Live Axle Door
	 	5778490	 	David B. Curtis (1)
	Structural Member
for Use in the
Construction of
Buildings
	 	10/314852 (pending)	 	NCI Building Systems, L.P.
	Multi-Story
Building and Method
for Construction
Thereof
	 	10/435303 (pending)	 	Fred E. Schubert
	Method and
Apparatus for
Suspending a Door
	 	10/619744 (pending)	 	NCI Building Systems, L.P.
	Structural Member
for Use in the
Construction of
Buildings
(Australia)
	 	2001276042 (pending)	 	NCI Building Systems, L.P.
	Structural Member
for Use in the
Construction of
Buildings (Brazil)
	 	P10112040-9 (pending)	 	NCI Building Systems, L.P.
	Structural Member
for Use in the
Construction of
Buildings (Canada)
	 	2412726 (pending)	 	NCI Building Systems, L.P.
	Structural Member
for Use in the
Construction of
Buildings (China)
	 	01814208.7 (pending)	 	NCI Building Systems, L.P.






Page 3 of 12 









 






	 	 	 	 	 
	Patent Title	 	Patent/Application No.	 	Owner
	Structural Member
for Use in the
Construction of
Buildings (European
Patent Office)
	 	01953610.1 (pending)	 	NCI Building Systems, L.P.
	Structural Member
for Use in the
Construction of
Buildings (Hungary)
	 	P0302105 (pending)	 	NCI Building Systems, L.P.
	Structural Member
for Use in the
Construction of
Buildings (Mexico)
	 	2003/000090 (pending)	 	NCI Building Systems, L.P.
	Structural Member
for Use in the
Construction of
Buildings (Poland)
	 	P-36120 (pending)	 	NCI Building Systems, L.P.
	Structural Member
for Use in the
Construction of
Buildings (Russian
Federation)
	 	2003101973 (pending)	 	NCI Building Systems, L.P.
	Multi-Story
Building and Method
for Construction
	 	PCT/US04/12097	 	 
	Thereof
	 	(pending)	 	 








 




			
	(1)	 	Subject to License Agreement.





	 	 	 	 	 
	Copyright Title	 	Registration No.	 	Owner
	Ultra-Dek 124 and Double-Lok
124 computer estimating /
material take-off program
	 	TX3211051	 	Metal Building Components, L.P.
	Ultra-simple, ultra-sure,
Ultra-Dek 124
	 	TX1938083	 	Metal Building Components, L.P.
	M B C I
	 	TX1924612	 	Metal Building Components, L.P.
	Ultra-Dek 124 erection manual
	 	TX1924543	 	Metal Building Components, L.P.
	Ultra-Dek 124
	 	TX1923318	 	Metal Building Components, L.P.






Licensed Intellectual Property:





	 	 	 	Patent License Agreement, dated November 13, 1995, between NCI Building Systems, L.P. (as
successor in interest to DBCI Acquisition Corporation) and David B. Curtis relating to
Tension Device for Live Axle Door — Patent No. 578490





Licensed Software:





	 	 	 	 	 
	Vendor Name	 	Software Name	 	Modules
	 
	Websense, Inc.

	 	Websense	 	 
	Noetix, Corp.

	 	NoetixViews
	 	Accounts Payable
	 

	 	 	 	Accounts Receivable
	 

	 	 	 	Fixed Assets
	 

	 	 	 	General Ledger






Page 4 of 12 









 







	 	 	 	 	 
	Vendor Name	 	Software Name	 	Modules
	 
	 

	 	 	 	Purchasing
	 

	 	 	 	Inventory
	 

	 	 	 	Order Entry
	 

	 	 	 	AOL
	 

	 	 	 	EUL Generator
	 
	 	 	 	 
	Merant

	 	PVCS
	 	Professional Suite v3.6.00
	 

	 	 	 	ERP v3.400
	 
	 	 	 	 
	Optio Software, Inc.

	 	Optio
	 	Document Customization Server
	v6.1.1 sol2
	 	 	 	 
	 
	 	 	 	 
	 

	 	 	 	Designer Software 3.0.17
	 

	 	 	 	Checkbook Software v2.02 d386
	 
	 	 	 	 
	Oracle Corporation

	 	Oracle
	 	Alert rl0.7
	 

	 	Applications
	 	Human Resources v7.0 rl0.7
	 

	 	 	 	Object Library v6.1 rl0.7
	 

	 	 	 	Sales Compensation v] .0 rl0.7
	 

	 	 	 	Payroll v4.0 rl0.7
	 

	 	 	 	Server EE 7.3
	 

	 	 	 	App Server EE Dorn 3.0
	 

	 	 	 	General Ledger v9.0 rl 0.7
	 

	 	 	 	Payables v8.0 rl0.7
	 

	 	 	 	Assets v7.0.l 66 r10.7
	 

	 	 	 	Purchasing v8.0 rl0.7
	 

	 	 	 	Receivables v7.0 rl0.7
	 

	 	 	 	Order Entry v4.0rl0.7
	 

	 	 	 	Inventory v5.0 rl0.7
	 

	 	 	 	Work in Process v5.1 r10.7
	 

	 	 	 	Bills of Material v5.0 r10.7
	 

	 	 	 	Developer 2.0
	 

	 	 	 	Discover/2000 v1.3
	 

	 	 	 	Discover User Ed. V3.0
	 

	 	 	 	Designer/2000 2.1.2
	 

	 	 	 	Discover Viewer 3.1w
	 

	 	 	 	Server EE 8 v8.0
	 

	 	 	 	Tuning Pack 2.0
	 

	 	 	 	Diagnostics Pack 2.0
	 

	 	 	 	Server EE 8I 8.1
	 

	 	 	 	Change Management Pack 2.0
	 

	 	 	 	Alert v5.0 rl0.7
	 
	 	 	 	 
	Oracle Corporation

	 	Oracle 11i
	 	E-Business Intelligence
	 

	 	 	 	Marketing, TeleSales, Field Sales
	 

	 	 	 	Order Management
	 

	 	 	 	Inventory Management





Page 5 of 12 









 






	 	 	 	 	 
	Vendor Name	 	Software Name	 	Modules
	 
	 

	 	 	 	Purchasing
	 

	 	 	 	Discrete
Manufacturing & Process Manufacturing

	 

	 	 	 	TeleService, Service Contracts
	 

	 	 	 	Project Costing, Project Billing
	 

	 	 	 	Financials
	 

	 	 	 	Human Resources
	 
	 	 	 	 
	Frontstep

	 	Syteline
	 	Syteline
Progress Enterprise Database Server v9.1c

	 

	 	 	 	Syteline Progress Client Networking
	 
	 	 	 	 
	v9.1c
	 	 	 	 
	 

	 	 	 	Progress Roundtable v9.lc
	 

	 	 	 	Syteline Progress Package v9.1c
	 
	 	 	 	 
	Frontstep

	 	Syteline
	 	Progress Personal Database
	 

	 	 	 	Syteline Progress Package License
	 

	 	 	 	Progress 4GL Development System
	 

	 	 	 	Progress Enterprise Database Server
	 

	 	 	 	Single Source Vertex Interface
	 
	 	 	 	 
	License
	 	 	 	 
	 

	 	 	 	Syteline ERP License
	 

	 	 	 	Progress Client Networking
	 

	 	 	 	Query Results
	 

	 	 	 	Syteline
Parameter Rule & Tables Source License

	 

	 	 	 	Service Subscription
	 

	 	 	 	Syteline ERP Source License
	 

	 	 	 	Syteline Progress Provision License
	 
	 	 	 	 
	SIS Technologies

	 	Veritas
	 	Veritas SAN Manager
	 

	 	 	 	Veritas Sun Cluster
	 

	 	 	 	Veritas Volume Manager
	 
	 	 	 	 
	CDW Computer Centers

	 	Microsoft
	 	MS SLA WIN CAL SA
	 

	 	 	 	MS SLA EXCH CAL SA
	 

	 	 	 	MS SLA WIN PRO SA
	 

	 	 	 	Microsoft Select Office Professional
	 
	 	 	 	 
	Software
	 	 	 	 
	 

	 	 	 	Assurance

	 

	 	 	 	Microsoft Select Office Software
	Assurance
	 	 	 	 
	 

	 	 	 	MS SLA WIN CAL UPG ADV
	Annual
	 	 	 	 
	 

	 	 	 	MS SLA EXCH CAL UPGADV
	Annual
	 	 	 	 





Page 6 of 12 









 






	 	 	 	 	 
	Vendor Name	 	Software Name	 	Modules
	 
	 

	 	 	 	MS SLA SRVR UPG ADV Annual
	 

	 	 	 	MS SLA WIN XP PRO UPG/SA
	 

	 	 	 	MS SLA SQL SRVR STD ED
	LIC/SA PK
	 	 	 	 
	 

	 	 	 	ICP
	 
	 	 	 	 
	 

	 	MAS 200
	 	Financials
	 

	 	 	 	Manufacturing
	 
	 	 	 	 
	Westbrook Technologies

	 	Fortis
	 	Document Management
	 

	 	Inflo
	 	Workflow Process
	 

	 	 	 	PowerWeb






A&S Building Systems, L.P.




	 	 	 	 	 
	Vendor Name	 	Software Name	 	Modules
	 
	N/A

	 	Helois Software
	 	Text Pad
	 

	 	Solutions	 	 
	 
	 	 	 	 
	N/A

	 	AutoDesk, Inc.
	 	AutoCAD LT 2002 10.3.0.0 (4)
	 

	 	 	 	Auto CAD LT 2000(i) Live (3)
	 

	 	 	 	Auto CAD LT 98 (9)
	 
	 	 	 	 
	N/A

	 	N/A
	 	RISA-3D-v4.1






Mesco Building Systems



Commercial Software


Libra

Great Plains Dynamics

FAS — Fixed Asset System

Rate Locator

AutoCAD 2002

IntelliCAD 2000

Delphi v7

Delphi v5

Visual Basic v5

Watcom Furtran

MultiEdit 

Adobe Acrobat

Pervasive SQL DBMS

Seagate Crystal Reports and Crystal Enterprise

Visio 2000

IES



Page 7 of 12 











 




CFS

MathCad

Novell Netware

Novell NDS for NT

MS Windows NT 4.0 Server

MS Exchange Server 5.5

Symantec Norton Antivirus Corporate Edition

Veritas Backup Exec for Windows

Veritas Backup Exec Agent for Windows

Veritas Backup Exec Intelligent Disaster Recover

Veritas Backup Exec Open File Option

Smart Storage — Archive Xtender for Win NT/2K



In-House Developed



Mpact

Order Entry System

Bill of Material System

Coil Tracking System

Schedule

Frame design/detailing system

Purlin and Girt design system

Crane beam design




NCI Building Systems, L.P.



In-House Developed Software:



Drafting Detail Search

Electronic Product Catalog

Load Data By County

Long Bay System Information

A&S DES Interface

nciDWG Viewer

Anchor Bolt Batch Print

Absentee Report XLS Generator

Autocad Script Generator

AISC Shape Explorer

User Activation/Authorization

Argos BOM Formatter

CAD Search

CAD Search Administrator

Material Weight Calculator

CODE Repository

Compound Document Data Objects

Compound Object Data Structures



Page 8 of 12









 






INP File Creator

ZIP File Creator/Explorer

Customer Tracker

Job File Tracker

Debug Monitor

Engineering Design Interface

DXF to PAS Converter

EMF Viewer / Printer

DXF Viewer / Printer

Image Gallery

iViewer

Main Frame Design

Main Frame Detailing

Matrix Manipulation

nciArchive Manager

nciAutoPlot

nciEndwall Detailing

nciLBS Detailer

nciTIFF Combine

nciTIFF Manager

nciTIFF Scanner

nciTIFF Viewer

OpenDWG Interface

Product ID Generator

S Drawings Manager

S Drawings Creator

User Registration

User Verification

Main Frame Connection Design

Express Pricing & Drafting System

Prism Pricing System

Prism Anchor Bolt Drawing System

Drawings Plus



In-House Developed Components:



CompDOC

dxfSHXMatrix

FastStringFuncs

FastStrings

Huffman

nciAbout

nciAddList

nciAISCShapes

nciBooleanList

nciBrowseForFolder




Page 9 of 12









 





nciCalendar

nciChangeNotification

nciCheckListbox

nciCheckTreeView

nciCoIdFormedShapes

nciColorButton

nciColumnRafterConnectionDetailer 

nciCommon

nciCompDocDataType

nciCompObj

nciCompObjDocConvertor

nciComponents

nciCSVParser

nciDoubleList

nciDraftingTypes

nciDXF

nciEdit

nciEMFViewer

nciEncrypt

nciEndwallFrames

nciExpParser

nciFramingComponents

nciGroupBox

nciLabel

nciListsAndMeasurements

nciLongIntList

nciMainFrames

nciMemoryStringStream

nciMemoryTable

nciMetaFile

nciMRUList

nciPanel

nciPreferences

nciPreview

nciPricingControls

nciPrinterSettings

nciProcessTimer

nciRadioListbox

nciRTF

nciSetsAndOrdsToFromString

nciShellControls

nciShellControlsI

nciShellIcons

nciSpeedButton

nciStreamClipboard

nciStringGrid




Page 10 of 12









 





nciStringParser

nciSurfaceFramingComponent

nciUtils

nciVariantList

nciVectorList

nciVersion

nciVisualStringList

uNCIDWG



Third Party Components — 32 bit:

DBlsam

Diamond Access

Dream Company

Envision

HyperString

FastString

ImageLIB

Raize

Rubicon

Shell Control Pack

TurboPower

TChartPro

VCLZip

XLS

ZLib



Compilers
— 32 bit:



Borland Delphi 6

Borland C++ Builder 6

Microsoft Visual C++ 6

Compaq Fortran 6.2



Compilers — 16 bit:



Microsoft Visual C++ 1.52c

Microsoft Visual Basic 3.0

Microsoft Fortran 5.1



Third Party Components — 16 bit:




	 	 	 
	Inner Media, Inc:

	 	Zip/Unzip
	 
	 	 
	Desaware, Inc:

	 	API Guide
	 

	 	Version Stamper
	 

	 	Call Back






Page 11 of 12








 






	 	 	 
	BeCubed Software, Inc:

	 	VB Tools
	 
	 	 
	Sheridan Software Systems, Inc:

	 	Designer Widgets IndexTab Custom Control
	 

	 	Data Widgets 2 Custom Controls






	 	 	 
	MicroHelp Inc:

	 	VBTools5 — run time dil
	 

	 	Gauge Control






	 	 	 
	Haas Service GmbH and Simplex Software:

	 	Visual Basic 3-D Custom Control






Page 12 of 12









 




SCHEDULE 3.19(a)


LOCATION OF REAL PROPERTY


Owned Real Property:



	 	 	 	 	 
	 	 	County/Independent	 	 
	Street Address and Zip Code	 	City	 	State
	10943 North Sam Houston Parkway West
	 	 	 	 
	Houston, Texas 77064

	 	Harris
	 	Texas
	 
	 	 	 	 
	9123 Center Street
	 	 	 	 
	Rancho Cucamonga, California 91730

	 	San Bernardino
	 	California
	 
	 	 	 	 
	1880 Hwy. 116
	 	 	 	 
	Caryville, Tennessee 37714

	 	Campbell
	 	Tennessee
	 
	 	 	 	 
	201 Apache Drive
	 	 	 	 
	Jackson, Mississippi 39272

	 	Hinds
	 	Mississippi
	 
	 	 	 	 
	7301 Fairview
	 	 	 	 
	Houston, Texas 77041

	 	Harris
	 	Texas
	 
	 	 	 	 
	7311 Fairview
	 	 	 	 
	Houston, Texas 77041

	 	Harris
	 	Texas
	 
	 	 	 	 
	7313 Fairview
	 	 	 	 
	Houston, Texas 77041

	 	Harris
	 	Texas
	 
	 	 	 	 
	1509 DeWitt Avenue East
	 	 	 	 
	Mattoon, Illinois 61938

	 	Coles
	 	Illinois
	 
	 	 	 	 
	550 Industry Way
	 	 	 	 
	Atwater, California 95301

	 	Merced
	 	California
	 
	 	 	 	 
	13706 Cabezut Drive
	 	 	 	 
	Laredo, Texas 78045

	 	Webb
	 	Texas
	 
	 	 	 	 
	4310 Industrial Access Road
	 	 	 	 
	Douglasville, Georgia 30134

	 	Douglas
	 	Georgia
	 
	 	 	 	 
	5707 Mitchelldale Street
	 	 	 	 
	Houston, Texas 77092

	 	Harris
	 	Texas
	 
	 	 	 	 
	Hwy. 114 & 400 North Kimball
	 	 	 	 
	Southlake, Texas 76092

	 	Tarrant
	 	Texas
	 
	 	 	 	 
	14031 West Hardy
	 	 	 	 
	Houston, Texas 77060

	 	Harris
	 	Texas
	 
	 	 	 	 
	5711 FM-40
	 	 	 	 
	Lubbock, Texas 79403

	 	Lubbock
	 	Texas
	 
	 	 	 	 
	7000 South Eastern Avenue
	 	 	 	 
	Oklahoma City, Oklahoma 73149

	 	Oklahoma
	 	Oklahoma
	 
	 	 	 	 
	8677 I-10 East
	 	 	 	 
	Converse, Texas 78109

	 	Bexar
	 	Texas





Page 1 of 5








 






	 	 	 	 	 
	 	 	County/Independent	 	 
	Street Address and Zip Code	 	City	 	State
	2280 Monier Avenue
	 	 	 	 
	Lithia Springs, Georgia 30122

	 	Douglas
	 	Georgia
	 
	 	 	 	 
	402 North Frontage Road
	 	 	 	 
	Plant City, Florida 33563

	 	Hillsborough
	 	Florida
	 
	 	 	 	 
	801 South Avenue

	 	City of	 	 
	Colonial Heights, Virginia 23834

	 	Colonial Heights
	 	Virginia
	 
	 	 	 	 
	1780 McCall Drive
	 	 	 	 
	Shelbyville, Indiana 46176

	 	Shelby
	 	Indiana
	 
	 	 	 	 
	1011 Ellison Avenue
	 	 	 	 
	Omaha, Nebraska 68110

	 	Douglas
	 	Nebraska
	 
	 	 	 	 
	300 Highway 51 North
	 	 	 	 
	Hernando, Mississippi 38632

	 	De Soto
	 	Mississippi
	 
	 	 	 	 
	6168 State Route 233
	 	 	 	 
	Rome, New York 13440

	 	Oneida
	 	New York
	 
	 	 	 	 
	1601 Rogers Road
	 	 	 	 
	Adel, Georgia 31620

	 	Cook
	 	Georgia
	 
	 	 	 	 
	660 South 91st Avenue
	 	 	 	 
	Tolleson, Arizona 85353

	 	Maricopa
	 	Arizona
	 
	 	 	 	 
	1155 West 2300 North
	 	 	 	 
	Salt Lake City, Utah 84116

	 	Salt Lake
	 	Utah
	 
	 	 	 	 
	1804 Jack McKay Boulevard
	 	 	 	 
	Ennis, Texas 75119

	 	Ellis
	 	Texas
	 
	 	 	 	 
	6975 Danville Road
	 	 	 	 
	Nicholasville, Kentucky 40356

	 	Jessamine
	 	Kentucky
	 
	 	 	 	 
	515 13th Avenue East
	 	 	 	 
	Oskaloosa, Iowa 52577

	 	Mahaska
	 	Iowa
	 
	 	 	 	 
	530 North Bronson Avenue
	 	 	 	 
	Big Rapids, Michigan 49307

	 	Mecosta
	 	Michigan
	 
	 	 	 	 
	422 Kirby Drive
	 	 	 	 
	Lexington, Tennessee 38351

	 	Henderson
	 	Tennessee
	 
	 	 	 	 
	40602 Highway 290
	 	 	 	 
	Waller, Texas 77484

	 	Harris
	 	Texas
	 
	 	 	 	 
	12555 Interstate 10 East
	 	 	 	 
	Baytown Texas 77520

	 	Chambers
	 	Texas
	 
	 	 	 	 
	1150 Marietta Industrial Drive NE
	 	 	 	 
	Marietta, Georgia 30062

	 	Cobb
	 	Georgia
	 
	 	 	 	 
	501 North Greenwood Street
	 	 	 	 
	Houston, Texas 77011

	 	Harris
	 	Texas






Page 2 of 5









 






	 	 	 	 	 
	 	 	County/Independent	 	 
	Street Address and Zip Code	 	City	 	State
	1836 Dock Street
	 	 	 	 
	Memphis, Tennessee 38113

	 	Shelby
	 	Tennessee
	 
	 	 	 	 
	951 Prisock Road
	 	 	 	 
	Jackson, Mississippi 39272

	 	Hinds
	 	Mississippi
	 
	 	 	 	 
	Ave. Stiva Aeropuerto #600

	 	Monterrey
	 	Mexico
	Parque Stiva Aeropuerto Apodaca,
	 	 	 	 
	Nuevo Leon Mexico 66600
	 	 	 	 





Leased Real Property:




	 	 	 	 	 
	 	 	County/Independent	 	State/Country
	Street Address and Zip Code	 	City	 	 
	1105 N. Market Street

	 	 	 	 
	Suite 1300
	 	 	 	 
	Wilmington, DE 19801
	 	New Castle	 	Delaware
	 
	 	 	 	 
	301 West Broome Street

	 	Troup
	 	Georgia
	Suite 213
	 	 	 	 
	LaGrange, Georgia 30240
	 	 	 	 
	 
	 	 	 	 
	1500 West DeWitt Henry Drive

	 	White
	 	Arkansas
	Suite 6-10
	 	 	 	 
	Beebe, Arkansas 72012
	 	 	 	 
	 
	 	 	 	 
	115a Alabama Street
	 	 	 	 
	Columbus, Mississippi 39702

	 	Lowndes
	 	Mississippi
	 
	 	 	 	 
	125 Pequanoc Drive
	 	 	 	 
	Tallapoosa, Georgia 30176

	 	Haralson
	 	Georgia
	 
	 	 	 	 
	13202 Murphy Road
	 	 	 	 
	Stafford, Texas 77477

	 	Fort Bend
	 	Texas
	 
	 	 	 	 
	5424 Rufe Snow Drive

	 	Tarrant
	 	Texas
	Suite 102
	 	 	 	 
	Fort Worth, Texas 76180
	 	 	 	 
	 
	 	 	 	 
	1718 Central Avenue

	 	Webster
	 	Iowa
	Suite 7
	 	 	 	 
	Fort Dodge, Iowa 50501
	 	 	 	 
	 
	 	 	 	 
	2124 South Meridian
	 	 	 	 
	Oklahoma City, Oklahoma 73108

	 	Oklahoma
	 	Oklahoma
	 
	 	 	 	 
	285 Forest Grove

	 	Waukesha
	 	Wisconsin
	Suite 209
	 	 	 	 
	Pewaukee, Wisconsin 53072
	 	 	 	 






Page 3 of 5








 






	 	 	 	 	 
	 	 	County/Independent	 	State/Country
	Street Address and Zip Code	 	City	 	 
	350 Hwy. 290 E

	 	 	 	 
	Ste 7
	 	 	 	 
	Hempstead, Texas 77445
	 	Waller	 	Texas
	 
	 	 	 	 
	530 Vine Street
	 	 	 	 
	Starkville, Mississippi 39759

	 	Oktibbeha
	 	Mississippi
	 
	 	 	 	 
	110 East Broad Street
	 	 	 	 
	Eufaula, Alabama 36027

	 	Barbour
	 	Alabama
	 
	 	 	 	 
	21 East Front Street
	 	 	 	 
	El Paso, Illinois 61738

	 	Woodford
	 	Illinois
	 
	 	 	 	 
	4645 Timber Ridge Road

	 	Douglas
	 	Georgia
	Suite 250
	 	 	 	 
	Douglasville, Georgia 30135
	 	 	 	 
	 
	 	 	 	 
	6535 West German Road
	 	 	 	 
	Chandler, Arizona 85226

	 	Maricopa
	 	Arizona
	 
	 	 	 	 
	880 Industrial Park Drive, NE
	 	 	 	 
	Marietta, Georgia 30062

	 	Cobb
	 	Georgia
	 
	 	 	 	 
	3200 Pinewood Drive
	 	 	 	 
	Arlington, Texas 76010

	 	Tarrant
	 	Texas
	 
	 	 	 	 
	2611 East Lindsey Privado Drive
	 	 	 	 
	Ontario, California 91761

	 	San Bernadino
	 	California
	 
	 	 	 	 
	12150 Shiloh Road, Suite 120
	 	 	 	 
	Dallas, Texas 75228

	 	Dallas
	 	Texas
	 
	 	 	 	 
	2679 Peachtree Square
	 	 	 	 
	Doraville, Georgia 30360

	 	DeKalb
	 	Georgia
	 
	 	 	 	 
	1001 Enterprise Avenue

	 	Oklahoma County
	 	Oklahoma
	Bay 2B-3B-4-5-6-7
	 	 	 	 
	Oklahoma City, Oklahoma 73128
	 	 	 	 
	 
	 	 	 	 
	13808 Imperial Highway

	 	Los Angeles
	 	California
	Suite 250
	 	 	 	 
	Santa Fe Springs, California 90670
	 	 	 	 
	 
	 	 	 	 
	107 Second Avenue SE
	 	 	 	 
	Cullman, Alabama 35055

	 	Cullman
	 	Alabama
	 
	 	 	 	 
	1414 Elrod Road
	 	 	 	 
	Piedmont, South Carolina 29673

	 	Anderson
	 	South Carolina
	 
	 	 	 	 
	4900 2nd Street, N.W.
	 	 	 	 
	Albuquerque, New Mexico 87107

	 	Bernalillo
	 	New Mexico
	 
	 	 	 	 
	550 South Compress
	 	 	 	 
	Las Cruces, New Mexico 88005

	 	Dona Ana
	 	New Mexico






Page 4 of 5









 






	 	 	 	 	 
	 	 	County/Independent	 	State/Country
	Street Address and Zip Code	 	City	 	 
	2001 San Juan Boulevard
	 	 	 	 
	Farmington, New Mexico 87401

	 	San Juan
	 	New Mexico
	 
	 	 	 	 
	4901 Brazosport Boulevard North

	 	Brazoria County
	 	Texas
	Clute, Texas 77531
	 	 	 	 
	 
	 	 	 	 
	4901 Brazosport Boulevard North
	 	 	 	 
	Richwood, Texas 77531
	 	 	 	 
	 
	 	 	 	 
	1283 Tallevast Road

	 	Manatee
	 	Florida
	Sarasota, Florida 34243
	 	 	 	 
	 
	 	 	 	 
	(office closed/lease runs through 10/04)
	 	 	 	 











Page 5 of 5









 








SCHEDULE 3.19(b)


LOCATION OF TANGIBLE PERSONAL PROPERTY




	 	 	 	 	 
	 	 	County/Independent	 	 
	Street Address and Zip Code	 	City	 	State
	10943 North Sam Houston Parkway West
	 	 	 	 
	Houston, Texas 77064

	 	Harris
	 	Texas
	 
	 	 	 	 
	9123 Center Street
	 	 	 	 
	Rancho Cucamonga, California 91730

	 	San Bernardino
	 	California
	 
	 	 	 	 
	1880 Hwy. 116
	 	 	 	 
	Caryville, Tennessee 37714

	 	Campbell
	 	Tennessee
	 
	 	 	 	 
	201 Apache Drive
	 	 	 	 
	Jackson, Mississippi 39272

	 	Hinds
	 	Mississippi
	 
	 	 	 	 
	7301 Fairview
	 	 	 	 
	Houston, Texas 77041

	 	Harris
	 	Texas
	 
	 	 	 	 
	7311 Fairview
	 	 	 	 
	Houston, Texas 77041

	 	Harris
	 	Texas
	 
	 	 	 	 
	7313 Fairview
	 	 	 	 
	Houston, Texas 77041

	 	Harris
	 	Texas
	 
	 	 	 	 
	1509 DeWitt Avenue East
	 	 	 	 
	Mattoon, Illinois 61938

	 	Coles
	 	Illinois
	 
	 	 	 	 
	550 Industry Way
	 	 	 	 
	Atwater, California 95301

	 	Merced
	 	California
	 
	 	 	 	 
	13706 Cabezut Drive
	 	 	 	 
	Laredo, Texas 78045

	 	Webb
	 	Texas
	 
	 	 	 	 
	4310 Industrial Access Road
	 	 	 	 
	Douglasville, Georgia 30134

	 	Douglas
	 	Georgia
	 
	 	 	 	 
	5707 Mitchelldale Street
	 	 	 	 
	Houston, Texas 77092

	 	Harris
	 	Texas
	 
	 	 	 	 
	Hwy. 114 & 400 North Kimball
	 	 	 	 
	Southlake, Texas 76092

	 	Tarrant
	 	Texas
	 
	 	 	 	 
	14031 West Hardy
	 	 	 	 
	Houston, Texas 77060

	 	Harris
	 	Texas
	 
	 	 	 	 
	5711 FM-40
	 	 	 	 
	Lubbock, Texas 79403

	 	Lubbock
	 	Texas
	 
	 	 	 	 
	7000 South Eastern Avenue
	 	 	 	 
	Oklahoma City, Oklahoma 73149

	 	Oklahoma
	 	Oklahoma
	 
	 	 	 	 
	8677 I-10 East
	 	 	 	 
	Converse, Texas 78109

	 	Bexar
	 	Texas






Page 1 of 7









 






	 	 	 	 	 
	 	 	County/Independent	 	 
	Street Address and Zip Code	 	City	 	State
	2280 Monier Avenue
	 	 	 	 
	Lithia Springs, Georgia 30122

	 	Douglas
	 	Georgia
	 
	 	 	 	 
	402 North Frontage Road
	 	 	 	 
	Plant City, Florida 33563

	 	Hillsborough
	 	Florida
	 
	 	 	 	 
	801 South Avenue

	 	City of	 	 
	Colonial Heights, Virginia 23834

	 	Colonial Heights
	 	Virginia
	 
	 	 	 	 
	1780 McCall Drive
	 	 	 	 
	Shelbyville, Indiana 46176

	 	Shelby
	 	Indiana
	 
	 	 	 	 
	1011 Ellison Avenue
	 	 	 	 
	Omaha, Nebraska 68110

	 	Douglas
	 	Nebraska
	 
	 	 	 	 
	300 Highway 51 North
	 	 	 	 
	Hernando, Mississippi 38632

	 	De Soto
	 	Mississippi
	 
	 	 	 	 
	6168 State Route 233
	 	 	 	 
	Rome, New York 13440

	 	Oneida
	 	New York
	 
	 	 	 	 
	1601 Rogers Road
	 	 	 	 
	Adel, Georgia 31620

	 	Cook
	 	Georgia
	 
	 	 	 	 
	660 South 91st Avenue
	 	 	 	 
	Tolleson, Arizona 85353

	 	Maricopa
	 	Arizona
	 
	 	 	 	 
	1155 West 2300 North
	 	 	 	 
	Salt Lake City, Utah 84116

	 	Salt Lake
	 	Utah
	 
	 	 	 	 
	1804 Jack McKay Boulevard
	 	 	 	 
	Ennis, Texas 75119

	 	Ellis
	 	Texas
	 
	 	 	 	 
	6975 Danville Road
	 	 	 	 
	Nicholasville, Kentucky 40356

	 	Jessamine
	 	Kentucky
	 
	 	 	 	 
	515 13th Avenue East
	 	 	 	 
	Oskaloosa, Iowa 52577

	 	Mahaska
	 	Iowa
	 
	 	 	 	 
	530 North Bronson Avenue
	 	 	 	 
	Big Rapids, Michigan 49307

	 	Mecosta
	 	Michigan
	 
	 	 	 	 
	422 Kirby Drive
	 	 	 	 
	Lexington, Tennessee 38351

	 	Henderson
	 	Tennessee
	 
	 	 	 	 
	40602 Highway 290
	 	 	 	 
	Waller, Texas 77484

	 	Harris
	 	Texas
	 
	 	 	 	 
	12555 Interstate 10 East
	 	 	 	 
	Baytown Texas 77520

	 	Chambers
	 	Texas
	 
	 	 	 	 
	4901 Brazosport Boulevard North

	 	Brazoria County
	 	Texas
	Clute, Texas 77531
	 	 	 	 
	 
	 	 	 	 
	4901 Brazosport Boulevard North
	 	 	 	 
	Richwood, Texas 77531
	 	 	 	 






Page 2 of 7









 






	 	 	 	 	 
	 	 	County/Independent	 	 
	Street Address and Zip Code	 	City	 	State
	1150 Marietta Industrial Drive NE
	 	 	 	 
	Marietta, Georgia 30062

	 	Cobb
	 	Georgia
	 
	 	 	 	 
	501 North Greenwood Street
	 	 	 	 
	Houston, Texas 77011

	 	Harris
	 	Texas
	 
	 	 	 	 
	1836 Dock Street
	 	 	 	 
	Memphis, Tennessee 38113

	 	Shelby
	 	Tennessee
	 
	 	 	 	 
	951 Prisock Road
	 	 	 	 
	Jackson, Mississippi 39272

	 	Hinds
	 	Mississippi
	 
	 	 	 	 
	880 Industrial Park Drive, NE
	 	 	 	 
	Marietta, Georgia 30062

	 	Cobb
	 	Georgia
	 
	 	 	 	 
	1105 N. Market Street

	 	New Castle
	 	Delaware
	Suite 1300
	 	 	 	 
	Wilmington, DE 19801
	 	 	 	 
	 
	 	 	 	 
	301 West Broome Street

	 	Troup
	 	Georgia
	Suite 213
	 	 	 	 
	LaGrange, Georgia 30240
	 	 	 	 
	 
	 	 	 	 
	1500 West DeWitt Henry Drive

	 	White
	 	Arkansas
	Suite 6-10
	 	 	 	 
	Beebe, Arkansas 72012
	 	 	 	 
	 
	 	 	 	 
	1918 Harrison

	 	Broward
	 	Florida
	Suite 204
	 	 	 	 
	Hollywood, Florida 33020
	 	 	 	 
	(Employee leases the office)
	 	 	 	 
	 
	 	 	 	 
	115a Alabama Street
	 	 	 	 
	Columbus, Mississippi 39702

	 	Lowndes
	 	Mississippi
	 
	 	 	 	 
	125 Pequanoc Drive
	 	 	 	 
	Tallapoosa, Georgia 30176

	 	Haralson
	 	Georgia
	 
	 	 	 	 
	13202 Murphy Road
	 	 	 	 
	Stafford, Texas 77477

	 	Fort Bend
	 	Texas
	 
	 	 	 	 
	5424 Rufe Snow Drive

	 	Tarrant
	 	Texas
	Suite 102
	 	 	 	 
	Fort Worth, Texas 76180
	 	 	 	 
	 
	 	 	 	 
	1718 Central Avenue

	 	Webster
	 	Iowa
	Suite 7
	 	 	 	 
	Fort Dodge, Iowa 50501
	 	 	 	 
	 
	 	 	 	 
	2124 South Meridian
	 	 	 	 
	Oklahoma City, Oklahoma 73108

	 	Oklahoma
	 	Oklahoma
	 
	 	 	 	 
	285 Forest Grove

	 	Waukesha
	 	Wisconsin
	Suite 209
	 	 	 	 
	Pewaukee, Wisconsin 53072
	 	 	 	 






Page 3 of 7









 






	 	 	 	 	 
	 	 	County/Independent	 	 
	Street Address and Zip Code	 	City	 	State
	350 Hwy. 290 E

	 	Waller
	 	Texas
	Suite 7
	 	 	 	 
	Hempstead, Texas 77445
	 	 	 	 
	 
	 	 	 	 
	530 Vine Street
	 	 	 	 
	Starkville, Mississippi 39759

	 	Oktibbeha
	 	Mississippi
	 
	 	 	 	 
	110 East Broad Street
	 	 	 	 
	Eufaula, Alabama 36027

	 	Barbour
	 	Alabama
	 
	 	 	 	 
	21 East Front Street
	 	 	 	 
	El Paso, Illinois 61738

	 	Woodford
	 	Illinois
	 
	 	 	 	 
	4645 Timber Ridge Road

	 	Douglas
	 	Georgia
	Suite 250
	 	 	 	 
	Douglasville, Georgia 30135
	 	 	 	 
	 
	 	 	 	 
	6535 West German Road
	 	 	 	 
	Chandler, Arizona 85226

	 	Maricopa
	 	Arizona
	 
	 	 	 	 
	3200 Pinewood Drive
	 	 	 	 
	Arlington, Texas 76010

	 	Tarrant
	 	Texas
	 
	 	 	 	 
	2611 East Lindsey Privado Drive
	 	 	 	 
	Ontario, California 91761

	 	San Bernadino
	 	California
	 
	 	 	 	 
	12150 Shiloh Road, Suite 120
	 	 	 	 
	Dallas, Texas 75228

	 	Dallas
	 	Texas
	 
	 	 	 	 
	2679 Peachtree Square
	 	 	 	 
	Doraville, Georgia 30360

	 	DeKalb
	 	Georgia
	 
	 	 	 	 
	1001 Enterprise Avenue

	 	Oklahoma County
	 	Oklahoma
	Bay 2B-3B-4-5-6-7
	 	 	 	 
	Oklahoma City, Oklahoma 73128
	 	 	 	 
	 
	 	 	 	 
	13808 Imperial Highway

	 	Los Angeles
	 	California
	Suite 250
	 	 	 	 
	Santa Fe Springs, California 90670
	 	 	 	 
	 
	 	 	 	 
	107 Second Avenue SE
	 	 	 	 
	Cullman, Alabama 35055

	 	Cullman
	 	Alabama
	 
	 	 	 	 
	1414 Elrod Road
	 	 	 	 
	Piedmont, South Carolina 29673

	 	Anderson
	 	South Carolina
	 
	 	 	 	 
	4900 2nd Street, N.W.
	 	 	 	 
	Albuquerque, New Mexico 87107

	 	Bernalillo
	 	New Mexico
	 
	 	 	 	 
	550 South Compress
	 	 	 	 
	Las Cruces, New Mexico 88005

	 	Dona Ana
	 	New Mexico
	 
	 	 	 	 
	2001 San Juan Boulevard
	 	 	 	 
	Farmington, New Mexico 87401

	 	San Juan
	 	New Mexico






Page 4 of 7









 






	 	 	 	 	 
	 	 	County/Independent	 	 
	Street Address and Zip Code	 	City	 	State
	1283 Tallevast Road

	 	Manatee
	 	Florida
	Sarasota, Florida 34243
	 	 	 	 
	(office closed/lease runs through 10/04)
	 	 	 	 
	 
	 	 	 	 
	Ave. Stiva Aeropuerto #600

	 	Monterrey
	 	Mexico
	Parque Stiva Aeropuerto Apodaca,
	 	 	 	 
	Nuevo Leon Mexico 66600
	 	 	 	 





Third Party Locations (third parties who store or process inventory of the Credit Parties):





	 	 	 	 	 
	 	 	County/Independent	 	 
	Name/Street Address and Zip Code	 	City	 	State
	 
	[Redacted]*
	 	[Redacted]*
	 	[Redacted]*
	 	 	 	 	 
	[Redacted]*
	 	[Redacted]*
	 	[Redacted]*
	 	 	 	 	 
	[Redacted]*
	 	[Redacted]*
	 	[Redacted]*
	 	 	 	 	 
	[Redacted]*
	 	[Redacted]*
	 	[Redacted]*
	 	 	 	 	 
	[Redacted]*
	 	[Redacted]*
	 	[Redacted]*
	 	 	 	 	 
	[Redacted]*
	 	[Redacted]*
	 	[Redacted]*
	 	 	 	 	 
	[Redacted]*
	 	[Redacted]*
	 	[Redacted]*
	 	 	 	 	 
	[Redacted]*
	 	[Redacted]*
	 	[Redacted]*
	 	 	 	 	 
	[Redacted]*
	 	[Redacted]*
	 	[Redacted]*
	 	 	 	 	 
	[Redacted]*
	 	[Redacted]*
	 	[Redacted]*





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



Page 5 of 7









 







	 	 	 	 	 
	 	 	County/Independent	 	 
	Name/Street Address and Zip Code	 	City	 	State
	 
	[Redacted]*
	 	[Redacted]*
	 	[Redacted]*
	 	 	 	 	 
	[Redacted]*
	 	[Redacted]*
	 	[Redacted]*
	 	 	 	 	 
	[Redacted]*
	 	[Redacted]*
	 	[Redacted]*
	 	 	 	 	 
	[Redacted]*
	 	[Redacted]*
	 	[Redacted]*
	 	 	 	 	 
	[Redacted]*
	 	[Redacted]*
	 	[Redacted]*
	 	 	 	 	 
	[Redacted]*
	 	[Redacted]*
	 	[Redacted]*
	 	 	 	 	 
	[Redacted]*
	 	[Redacted]*
	 	[Redacted]*
	 	 	 	 	 
	[Redacted]*
	 	[Redacted]*
	 	[Redacted]*
	 	 	 	 	 
	[Redacted]*
	 	[Redacted]*
	 	[Redacted]*
	 	 	 	 	 
	[Redacted]*
	 	[Redacted]*
	 	[Redacted]*
	 	 	 	 	 
	[Redacted]*
	 	[Redacted]*
	 	[Redacted]*
	 	 	 	 	 
	[Redacted]*
	 	[Redacted]*
	 	[Redacted]*
	 	 	 	 	 
	[Redacted]*
	 	[Redacted]*
	 	[Redacted]*
	 	 	 	 	 
	[Redacted]*
	 	[Redacted]*
	 	[Redacted]*




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



Page 6 of 7









 






	 	 	 	 	 
	 	 	County/Independent	 	 
	Name/Street Address and Zip Code	 	City	 	State
	 
	[Redacted]*
	 	[Redacted]*
	 	[Redacted]*
	 	 	 	 	 
	[Redacted]*
	 	[Redacted]*
	 	[Redacted]*
	 	 	 	 	 
	[Redacted]*
	 	[Redacted]*
	 	[Redacted]*
	 	 	 	 	 
	[Redacted]*
	 	[Redacted]*
	 	[Redacted]*
	 	 	 	 	 
	[Redacted]*
	 	[Redacted]*
	 	[Redacted]*
	 	 	 	 	 
	[Redacted]*
	 	[Redacted]*
	 	[Redacted]*
	 	 	 	 	 
	[Redacted]*
	 	[Redacted]*
	 	[Redacted]*
	 	 	 	 	 
	[Redacted]*
	 	[Redacted]*
	 	[Redacted]*
	 	 	 	 	 
	[Redacted]*
	 	[Redacted]*
	 	[Redacted]*
	 	 	 	 	 
	[Redacted]*
	 	[Redacted]*
	 	[Redacted]*








 




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





Page 7 of 7









 




SCHEDULE 3.19(c)


CHIEF EXECUTIVE OFFICES AND PRINCIPAL PLACE OF BUSINESS




	 	 	 	 	 
	COMPANY	 	OFFICE	 	ADDRESS
	NCI Building Systems, Inc.

	 	Chief Executive Office:
	 	10943 North Sam Houston Parkway West

Houston, Texas 77064
	 
	 	 	 	 
	 

	 	Principal Place of
Business:
	 	10943 North Sam Houston Parkway West

Houston, Texas 77064
	 
	 	 	 	 
	Building Systems de
Mexico, S.A. de C.V.

	 	Chief Executive Office:
	 	Ave. Stiva Aeropuerto #600

Parque Stiva Aeropuerto Apodaca,

Nuevo Leon Mexico 66600
	 
	 	 	 	 
	 

	 	Principal Place of
Business:
	 	Ave. Stiva Aeropuerto #600

Parque Stiva Aeropuerto Apodaca,

Nuevo Leon Mexico 66600
	 
	 	 	 	 
	NCI Operating Corp.

	 	Chief Executive Office:
	 	10943 North Sam Houston Parkway West

Houston, Texas 77064
	 
	 	 	 	 
	 

	 	Principal Place of
Business:
	 	10943 North Sam Houston Parkway West

Houston, Texas 77064
	 
	 	 	 	 
	NCI Holding Corp:

	 	Chief Executive Office:
	 	c/o Delaware Corporate Management,
Inc.

1105 North Market Street, Suite 1300

P O. Box 8985

Wilmington, Delaware 19801
	 
	 	 	 	 
	 

	 	Principal Place of
Business:
	 	c/o Delaware Corporate Management,
Inc.

1105 North Market Street, Suite 1300

P O. Box 8985

Wilmington, Delaware 19801
	 
	 	 	 	 
	Metal Coaters of
California, Inc.

	 	Chief Executive Office:
	 	10943 North Sam Houston Parkway West

Houston, Texas 77064
	 
	 	 	 	 
	 

	 	Principal Place of
Business:
	 	9123 Center Street

Rancho Cucamonga, California 91730
	 
	 	 	 	 
	NCI Building Systems, L.P.

	 	Chief Executive Office:
	 	10943 North Sam Houston Parkway West

Houston, Texas 77064
	 
	 	 	 	 
	 

	 	Principal Place of
Business:
	 	7301 Fairview

Houston, Texas 77041
	 
	 	 	 	 
	A&S Building Systems, L.P.

	 	Chief Executive Office:
	 	10943 North Sam Houston Parkway West

Houston, Texas 77064
	 
	 	 	 	 
	 

	 	Principal Place of
Business:
	 	1880 Highway 116

Caryville, Tennessee 37714
	 
	 	 	 	 
	Metal Building
Components, L.P.

	 	Chief Executive Office:
	 	10943 North Sam Houston Parkway West

Houston, Texas 77064
	 
	 	 	 	 
	 

	 	Principal Place of
Business:
	 	14031 West Hardy

Houston, Texas 77060
	 
	 	 	 	 
	NCI Group, L.P.

	 	Chief Executive Office:
	 	10943 North Sam Houston Parkway West

Houston, Texas 77064
	 
	 	 	 	 
	 

	 	Principal Place of
Business:
	 	10943 North Sam Houston Parkway West

Houston, Texas 77064







Page 1 of 1











 





SCHEDULE 3.22



LABOR MATTERS



The United Steel Workers of America has periodically petitioned the National Labor Relations Board to
be recognized as the collective bargaining representative of the production and
maintenance employees at various facilities, but has lost the resulting union
election each time. The last elections were at our Rancho Cucamonga, California facility in August 1998 and
November 1999 and at our Jackson, Mississippi facility in May 2004.




Page 1 of 1









 








SCHEDULE 3.24



 [Redacted]*


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



 









 




SCHEDULE 3.25


Insurance


 [Redacted]*


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



Page 1 of 3









 








Schedule 4.1(b)




[FORM OF]

SECRETARY’S CERTIFICATE



[CREDIT PARTY]



     Pursuant to Section 4.1(b) of the Credit Agreement, dated as of June 18, 2004 (as amended,
restated or otherwise modified, the “Credit Agreement”; capitalized terms used herein and
not defined shall have the meanings provided in the Credit Agreement), by and among NCI Building
Systems, Inc., a Delaware corporation (the “Borrower”), the Domestic Subsidiaries of the
Borrower from time to time party thereto (collectively the “Guarantors”), the lenders from
time to time party thereto (the “Lenders”) and Wachovia Bank, National Association, as
Administrative Agent for the Lenders (the “Administrative Agent”), the undersigned
                     of [CREDIT PARTY] hereby certifies as follows:



     1. Attached hereto as Exhibit A is a true and complete copy of the [articles of
incorporation] [certificate of formation] [certificate of limited partnership] of [CREDIT PARTY]
and all amendments thereto as in effect on the date hereof.



     2. Attached hereto as Exhibit B is a true and complete copy of the [bylaws] [operating
agreement] [partnership agreement] of [CREDIT PARTY] and all amendments thereto as in effect on the
date hereof.



     3. Attached hereto as Exhibit C is a true and complete copy of resolutions duly
adopted by the board of directors of [CREDIT PARTY] on                      2004. Such resolutions have not
in any way been rescinded or modified and have been in full force and effect since their adoption
to and including the date hereof, and such resolutions are the only corporate proceedings of
[CREDIT PARTY] now in force relating to or affecting the matters referred to therein.



     4. The following persons are the duly elected and qualified officers of [CREDIT PARTY],
holding the offices indicated next to the names below on the date hereof, and the signatures
appearing opposite the names of the officers below are their true and genuine signatures, and each
of such officers is duly authorized to execute and deliver on behalf of [CREDIT PARTY] the Credit
Agreement, the Notes and the other Credit Documents to be issued pursuant thereto:



	 	 	 	 	 
	Name	 	Office	 	Signature
	 	 	 	 	 





 









 






     IN WITNESS WHEREOF, I hereunder subscribe my name effective as of the ___day of                     ,
2004.



	 	 	 	 	 	 	 
	 	 	   	 	 
	 

	 	Name:	 	 	 	 
	 

	 	Title:
	 	 

	 	 
	 

	 	 	 	 

	 	 





I,                     , the                      of [CREDIT PARTY], hereby certify that
                     is the duly elected and qualified                      of [CREDIT PARTY]
and that his/her true and genuine signature is set forth above.




	 	 	 	 	 	 	 
	 	 	   	 	 
	 

	 	Name:	 	 	 	 
	 

	 	Title:
	 	 

	 	 
	 

	 	 	 	 

	 	 











 









 








Schedule 4.1(i)




[FORM OF]

SOLVENCY CERTIFICATE



     The undersigned chief financial officer of NCI Building Systems, Inc., a Delaware corporation
(the “Borrower”), is familiar with the properties, businesses, assets and liabilities of
the Credit Parties and is duly authorized to execute this certificate on behalf of the Borrower.



     Reference is made to that Credit Agreement, dated as of June 18, 2004 (as amended, restated or
otherwise modified, the “Credit Agreement”), by and among the Borrower, the Domestic
Subsidiaries of the Borrower from time to time party thereto (collectively the
“Guarantors”), the lenders from time to time party thereto (the “Lenders”) and
Wachovia Bank, National Association, as Administrative Agent for the Lenders (the
“Administrative Agent”). All capitalized terms used herein and not defined shall have the
meanings provided in the Credit Agreement.



     The undersigned certifies that he has made such investigation and inquiries as to the
financial condition of the Credit Parties as the undersigned deems necessary and prudent for the
purpose of providing this Certificate. The undersigned acknowledges that the Administrative Agent
and the Lenders are relying on the truth and accuracy of this Certificate in connection with the
making of Loans and other Extensions of Credit under the Credit Agreement.



     The undersigned certifies that the financial information, projections and assumptions which
underlie and form the basis for the representations made in this Certificate were reasonable when
made and were made in good faith and continue to be reasonable as of the date hereof.



     BASED ON THE FOREGOING, the undersigned certifies that, both before and after giving effect to
the Loans and other Extensions of Credit made on the Closing Date:




     A. Each of the Credit Parties is able to pay its debts and other liabilities,
contingent obligations and other commitments as they mature in the normal course of
business.




     B. None of the Credit Parties intends to, and does not believe that it will, incur
debts or liabilities beyond its ability to pay as such debts and liabilities mature in their
ordinary course.




     C. None of the Credit Parties is engaged in any business or transaction, or is about to
engage in any business or transaction, for which the assets of such Credit Party would
constitute unreasonably small capital after giving due consideration to the prevailing
practice in the industry in which such Credit Party is engaged or is to engage.




     D. The present fair saleable value of the consolidated assets of the Credit Parties and
their Subsidiaries, taken as a whole, measured on a going concern basis, exceeds all
probable liabilities including those incurred pursuant to the Credit Agreement.



 









 





     IN WITNESS WHEREOF, the undersigned has executed this Certificate this ___day of                     ,
2004, in the undersigned’s capacity as the chief financial officer of the Borrower.



	 	 	 	 	 	 	 
	 	 	NCI BUILDING SYSTEMS, INC.,

a Delaware corporation	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	Name:
	 	 

	 	 
	 

	 	Title:
	 	 

	 	 
	 

	 	 	 	 

	 	 











 









 








Schedule 5.2(b)




[FORM OF]

COMPLIANCE CERTIFICATE



OFFICER’S COMPLIANCE CERTIFICATE



Dated:                     , 2004



     The undersigned, on behalf of Juno Lighting, Inc. (the “Borrower”) hereby certifies to
Wachovia Bank, National Association, as Administrative Agent (the “Administrative Agent”),
and the Lenders party to the Credit Agreement referred to below, as follows:



     1. This Certificate is delivered to you pursuant to Section 5.2(b) of the Credit Agreement,
dated as of June 18, 2004 (as amended, restated or otherwise modified, the “Credit
Agreement”), by and among the Borrower, the Domestic Subsidiaries of the Borrower from time to
time party thereto (collectively the “Guarantors”), the lenders from time to time party
thereto (the “Lenders”) and the Administrative Agent. Capitalized terms used
herein and not defined herein shall have the meanings assigned thereto in the Credit Agreement.



     2. I have reviewed the financial statements of the Borrower and its consolidated Subsidiaries
dated as of                      and for the                      period[s] then ended and such statements
present fairly the financial position of the Borrower and its consolidated Subsidiaries as of the
dates indicated and the results of their operations and cash flows for the period[s] indicated in
conformity with GAAP applied on a consistent basis.



     3. I have reviewed the terms of the Credit Agreement and the related Credit Documents and have
made, or caused to be made under my supervision, a review in reasonable detail of the transactions
and the condition of the Borrower and its consolidated Subsidiaries during the accounting period
covered by the financial statements referred to in Paragraph 2 above. Based on such review, each
of the Credit Parties during such accounting period observed or performed in all material respects
all of its covenants and other agreements, and satisfied in all material respects every condition,
contained in the Credit Agreement to be observed, performed or satisfied by it. Such review has
not disclosed the existence during or at the end of such accounting period of any condition or
event that constitutes a Default or an Event of Default, nor do I have any knowledge of the
existence of any such condition or event as at the date of this Certificate [except, if such
condition or event existed or exists, describe the nature and period of existence thereof and what
action the Borrower has taken, is taking and proposes to take with respect thereto].



     4. The Applicable Percentages and calculations determining such percentages are set forth on
the attached Schedule 1 and the Borrower and its Subsidiaries are in compliance with the
financial covenants contained in Section 5.9 of the Credit Agreement as shown on such Schedule
1.



 









 





     IN WITNESS WHEREOF, the undersigned has executed this Officer’s Compliance Certificate on
behalf of the Borrower on the ___day of                     , 200_.



	 	 	 	 	 	 	 
	 	 	NCI BUILDING SYSTEMS, INC.,

a Delaware corporation	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	Name:
	 	 

	 	 
	 

	 	Title:
	 	 

	 	 
	 

	 	 	 	 

	 	 






 









 






Schedule I to

Officer’s Compliance Certificate




For the Quarter/Year ended      (“Financial Statement Date”)




	I.	 	Leverage Ratio





	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	A.	 	Funded Debt, as of Interest Determination Date, for the Borrower and its
Subsidiaries on a consolidated basis:
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	1.	 	 	Funded Debt:	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	(a)
	 	Without duplication, all
obligations for borrowed money and all
obligations evidenced by bonds, debentures,
notes, loan agreements or other similar
instruments (in thousands):
	 	$                    
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	(b)
	 	Without duplication,
Attributable Indebtedness in respect of Capital
Leases and Synthetic Lease Obligations (in
thousands):
	 	$                    
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	(c)
	 	Without duplication,
obligations in respect of any Redeemable Stock
(in thousands):
	 	$                    
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	(d)
	 	Without duplication, all
direct or contingent obligations arising under
letters of credit (including standby and
commercial), banker’s acceptances, bank
guaranties, surety bonds and similar instruments
(in thousands):
	 	$                    
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	(e)
	 	Without duplication, all
obligations to pay the deferred purchase price of
property or services (other than trade payables
incurred in the ordinary course of business or
accrued liabilities arising in the ordinary
course of business that are not overdue or that
are being contested in good faith), and
indebtedness (excluding prepaid interest thereon)
secured by a Lien on property owned or being
purchased (including indebtedness arising under
conditional sales or other title retention
agreements), whether or not such indebtedness
shall have been assumed or is limited in recourse
(in thousands):
	 	$                    
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	(f)
	 	Without duplication, net
obligations under any Hedging Agreement (in
thousands):
	 	$                    
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	(g)
	 	Without duplication,
Guaranty Obligations with respect to obligations
of the type specified in	 	 






 









 






	 	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	 	 	subsections (a) through (f) above of Persons
other than the Borrower or any of its
Subsidiaries (in thousands):
	 	$                    
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	(h)
	 	Without duplication, all
Indebtedness of the types referred to in
subsections (a) through (g) above of any
partnership or joint venture (other than a joint
venture that is itself a corporation or limited
liability company) in which the Borrower or a
Subsidiary is a general partner or joint
venturer, unless such Indebtedness is expressly
made non-recourse to the Borrower or such
Subsidiary (in thousands):
	 	$                    
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	(i)
	 	Funded Debt (Lines
I.A.1(a) + (b) + (c) + (d) + (e) + (f) + (g) +
(h)):
	 	$                    
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	B.	 	Consolidated EBITDA for the period of the four
consecutive fiscal quarters ending on the Interest Determination
Date (the “Subject Period”) for the Borrower and its
Subsidiaries on a consolidated basis:	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	1.	 	 	Consolidated EBITDA:	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	(a)
	 	Consolidated Net Income
for the Subject Period (in thousands):
	 	$                    
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	(b)
	 	Without duplication and
to the extent deducted in determining Net Income,
Consolidated Interest Expense for the Subject
Period (in thousands):
	 	$                    
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	(c)
	 	Without duplication and
to the extent deducted in determining
Consolidated Net Income, federal, state, local
and foreign income taxes for the Subject Period
(in thousands):
	 	$                    
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	(d)
	 	Without duplication and
to the extent deducted in determining
Consolidated Net Income, depreciation and
amortization expenses for the Subject Period (in
thousands):
	 	$                    
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	(e)
	 	Without duplication and
to the extent deducted in determining
Consolidated Net Income, non-cash contributions
during the Subject Period to 401(k) and other
employee benefit plans, not to exceed $7,500,000
(in thousands):
	 	$                    
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	(f)
	 	Without duplication and
to the extent deducted in determining
Consolidated Net Income, non-cash	 	 






 









 






	 	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	 	 	restructuring charges (net of tax) during the
Subject Period, not to exceed $5,000,000 (in
thousands):
	 	$                    
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	(g)
	 	Without duplication and
to the extent deducted in determining
Consolidated Net Income, the transaction costs
and expenses incurred in connection with the
Credit Agreement (in thousands):
	 	$                    
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	(h)
	 	Without duplication and
to the extent deducted in determining
Consolidated Net Income, the premium paid with
respect to the prepayment of the Senior
Subordinated Notes in an amount not to exceed
$5,800,000 (in thousands):
	 	$                    
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	(i)
	 	Without duplication and
to the extent deducted in determining
Consolidated Net Income, the non-cash write-off
of the remaining deferred financing costs related
to the Existing Credit Agreement and the Senior
Subordinated Notes in an amount not to exceed
$4,100,000 (in thousands):
	 	$                    
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	(j)
	 	EBITDA (Lines I.B.1(a) + (b) + (c) + (d) + (e) +
(f) + (g) + (h) + (i)):
	 	$                    
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	C.	 	 	Leverage Ratio (Line I.A.1.(i)  ̧ Line I.B.1.(j)):	 	______ to 1
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	D.	 	 	Maximum Leverage Ratio:	 	4.00 to 1







	II.	 	Senior Leverage Ratio






	 	A.	 	Senior Funded Debt, as of Interest Determination Date, for the Borrower and its
Subsidiaries on a consolidated basis:





	 	 	 	 	 	 	 	 	 	 	 
	 	 	1. Consolidated Funded Debt (Line I.A.1.(i))	 	$                    
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	2. Subordinated Debt	 	$                    
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	3. Senior Funded Debt (Line II.A.1 – Line II.A.2)	 	$                    







	 	B.	 	Consolidated EBITDA for the period of the four consecutive fiscal quarters ending on
the Interest Determination Date (the “Subject Period”) for the Borrower and its
Subsidiaries on a consolidated basis:





	 	 	 	 	 	 	 	 	 	 	 
	 	 	1. Consolidated EBITDA (Line I.B.1.(j)):	 	$                    






 









 






	 	 	 	 	 	 	 	 	 	 	 
	 	 	C.	 	Senior Leverage Ratio (Line II.A.3.  ̧ Line II.B.1.):	 	______ to 1
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	D.	 	Maximum Leverage Ratio:	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 

	 	E.	 	 	 	 	 	 	 	 






	 	 	 	 	 
	Period	 	Maximum Ratio
	Closing Date through April 30, 2005
	 	 	3.50 to 1.0	 
	May 1, 2005 through April 30, 2007
	 	 	3.25 to 1.0	 
	May 1, 2007 through April 30, 2008
	 	 	3.00 to 1.0	 
	May 1, 2008 and thereafter
	 	 	2.75 to 1.0	 







	III.	 	Interest Coverage Ratio.





	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	A.	 	Consolidated EBITDA for the Subject Period (Line I.B.1(j)) (in thousands):	 	$                    
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	B.	 	Consolidated Interest Expense for the Subject Period	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	1.	 	 	total interest expense, for the Subject
Period, whether paid or accrued (including the interest
component of Capital Leases) including, without
limitation, all commitment fees, commissions, discounts
and other fees and charges owed with respect to letters
of credit and net costs under interest rate contracts and
foreign exchange contracts (in thousands):	 	$                    
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	2.	 	 	amortization of debt issuance costs (in
thousands):	 	$                    
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	3.	 	 	Interest Expense (Lines III.B. 1. - 2.) (in
thousands):	 	$                    
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	C.	 	Interest Coverage Ratio (Line III.A.  ̧ Line III.B.3.):	 	____ to 1
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	D.	 	Minimum Required:	 	 






	 	 	 	 	 
	Period	 	Minimum Ratio
	Closing Date through April 30, 2005
	 	 	3.50 to 1.0	 
	May 1, 2005 through April 30, 2007
	 	 	4.00 to 1.0	 
	May 1, 2007 through April 30, 2008
	 	 	4.50 to 1.0	 
	May 1, 2008 and thereafter
	 	 	5.00 to 1.0	 






 









 







	IV.	 	Consolidated Capital Expenditures.





	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	A. Consolidated Capital Expenditures for 2004 as of Closing Date	 	$                    

	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	B. Maximum Consolidated Capital Expenditures in any year	 	$  30,000,000
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	The maximum amount of Consolidated Capital Expenditures permitted may be increased in any
fiscal year by carrying forward any unused amount (up to $10,000,000) in the immediately
preceding fiscal year; provided that with respect to any fiscal year, Consolidated
Capital Expenditures made during any such fiscal year shall be deemed to be made first with
respect to the applicable limitation for such fiscal year and then with respect to any carry
forward amount to the extent applicable.







	V.	 	Limitation on Restricted Payments.





	 	 	 	 	 	 	 	 	 	 	 
	 	 	A.	 	Dividends payable solely in the same class of Capital
Stock of such Person (in thousands):	 	$                    
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	B.	 	Dividends or other distributions payable to the Borrower
or a Domestic Subsidiary (in thousands):	 	$                    
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	C.	 	Repurchases of Capital Stock in respect of employee
benefit plans and stock options in an aggregate amount not to
exceed $5,000,000 during any fiscal year (in thousands):	 	$                    
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	D.	 	So long as no Default or Event of Default shall have
occurred and be continuing or would result therefrom, regularly
scheduled payments of interest in respect of the Senior
Subordinated Notes (in thousands):	 	$                    
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	E.	 	So long as no Default or Event of Default shall have
occurred and be continuing and the Borrower demonstrates pro
forma compliance with the financial covenants set forth in
Section 5.9, repurchases of its Capital Stock and/or pay cash
dividends in an aggregate amount during the term of this Credit
Agreement not to exceed $25,000,000 plus 25% of Consolidated Net
Income since the Closing Date (in thousands):	 	$                    







 











 





Schedule 5.10




[FORM OF]

JOINDER AGREEMENT



     THIS JOINDER AGREEMENT (this “Agreement”), dated as of                     , 200_, is by and
among                                         , a                                   
       (the “Subsidiary Guarantor”), NCI
Building Systems, Inc., a Delaware corporation (the “Borrower”), and Wachovia Bank,
National Association, in its capacity as Administrative Agent under that certain Credit Agreement,
dated as of June 18, 2004 (as amended, restated or otherwise modified, the “Credit
Agreement”), by and among the Borrower, the Domestic Subsidiaries of the Borrower from time to
time party thereto (collectively the “Guarantors”), the lenders from time to time party
thereto (the “Lenders”) and the Administrative Agent. Capitalized terms used herein but
not otherwise defined shall have the meanings provided in the Credit Agreement.



     The Subsidiary Guarantor is an Additional Credit Party, and, consequently, the Credit Parties
are required by Section 5.10 of the Credit Agreement to cause the Subsidiary Guarantor to become a
“Guarantor” thereunder.



     Accordingly, the Subsidiary Guarantor and the Borrower hereby agree as follows with the
Administrative Agent, for the benefit of the Lenders:



     1. The Subsidiary Guarantor hereby acknowledges, agrees and confirms that, by its execution of
this Agreement, the Subsidiary Guarantor will be deemed to be a party to and a “Guarantor” under
the Credit Agreement and shall have all of the obligations of a Guarantor thereunder as if it had
executed the Credit Agreement. The Subsidiary Guarantor hereby ratifies, as of the date hereof,
and agrees to be bound by, all of the terms, provisions and conditions contained in the applicable
Credit Documents, including without limitation (a) all of the representations and warranties set
forth in Article III of the Credit Agreement and (b) all of the affirmative and negative covenants
set forth in Articles V and VI of the Credit Agreement. Without limiting the generality of the
foregoing terms of this Paragraph 1, the Subsidiary Guarantor hereby guarantees, jointly and
severally together with the other Guarantors, the prompt payment of the Credit Party Obligations in
accordance with Article X of the Credit Agreement.



     2. The Subsidiary Guarantor hereby acknowledges, agrees and confirms that, by its execution of
this Agreement, the Subsidiary Guarantor will be deemed to be a party to the Security Agreement,
and shall have all the rights and obligations of an “Obligor” (as such term is defined in the
Security Agreement) thereunder as if it had executed the Security Agreement. The Subsidiary
Guarantor hereby ratifies, as of the date hereof, and agrees to be bound by, all of the terms,
provisions and conditions contained in the Security Agreement.



     3. The Subsidiary Guarantor hereby acknowledges, agrees and confirms that, by its execution of
this Agreement, the Subsidiary Guarantor will be deemed to be a party to the Pledge Agreement, and
shall have all the rights and obligations of a “Pledgor” thereunder as if it had executed the
Pledge Agreement. The Subsidiary Guarantor hereby ratifies, as of the date hereof, and agrees to
be bound by, all the terms, provisions and conditions contained in the Pledge Agreement.



     4. The Subsidiary Guarantor acknowledges and confirms that it has received a copy of the
Credit Agreement and the schedules and exhibits thereto and each Security Document and the
schedules and exhibits thereto. The information on the schedules to the Credit Agreement and the
Security Documents are hereby supplemented (to the extent permitted under the Credit Agreement or
Security Documents) to reflect the information shown on the attached Schedule A.



     5. The Borrower confirms that the Credit Agreement is, and upon the Subsidiary Guarantor
becoming a Guarantor, shall continue to be, in full force and effect. The parties hereto confirm
and agree that immediately upon the Subsidiary Guarantor becoming a Guarantor the term “Credit
Party Obligations,” as used in the Credit Agreement, shall include all obligations of the
Subsidiary Guarantor under the Credit Agreement and under each other Credit Document.



 









 





     6. Each of the Borrower and the Subsidiary Guarantor agrees that at any time and from time to
time, upon the written request of the Administrative Agent, it will execute and deliver such
further documents and do such further acts as the Administrative Agent may reasonably request in
accordance with the terms and conditions of the Credit Agreement in order to effect the purposes of
this Agreement.



     7. This Agreement may be executed in two or more counterparts, each of which shall constitute
an original but all of which when taken together shall constitute one contract.



     8. This Agreement shall be governed by and construed and interpreted in accordance with the
laws of the State of North Carolina without regard to principles of conflicts of laws that would
call for the application of the laws of any other jurisdiction. The terms of Sections 9.13 and
9.16 of the Credit Agreement are incorporated herein by reference, mutatis mutandis, and the
parties hereto agree to such terms.



 









 





     IN WITNESS WHEREOF, each of the Borrower and the Subsidiary Guarantor has caused this
Agreement to be duly executed by its authorized officer, and the Administrative Agent, for the
benefit of the Lenders, has caused the same to be accepted by its authorized officer, as of the day
and year first above written.



	 	 	 	 	 	 	 
	SUBSIDIARY GUARANTOR:	 	[SUBSIDIARY GUARANTOR]	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	Name:
	 	 

	 	 
	 

	 	Title:
	 	 

	 	 
	 

	 	 	 	 

	 	 
	 
	 	 	 	 	 	 
	BORROWER:	 	NCI BUILDING SYSTEMS, INC,

a Delaware corporation	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	Name:
	 	 

	 	 
	 

	 	Title:
	 	 

	 	 
	 

	 	 	 	 

	 	 






	 	 	 	 	 
	Acknowledged, accepted and agreed:	 	 
	 
	 	 	 	 
	WACHOVIA BANK, NATIONAL ASSOCIATION, 

as Administrative Agent	 	 
	 
	 	 	 	 
	By:
	 	 	 	 
	Name:

	 	 

	 	 
	Title:

	 	 

	 	 
	 

	 	 

	 	 






 









 






SCHEDULE A

to

Joinder Agreement




Schedules
to Credit Agreement and Security Documents






 









 








SCHEDULE 6.1(b)




INDEBTEDNESS




	1.	 	[Redacted]






	2.	 	$125,000,000 of 91/4% Senior Subordinated Notes due 2009 issued pursuant to that certain
Indenture, dated May 5, 1999, by and among NCI, the guarantors named therein and The Bank
of New York (as successor in interest to Harris Trust Company of New York)




Page 1 of 1 









 











Schedule 9.2




NOTICES/LENDERS’ LENDING OFFICES



	 	 	 
	Lenders:
	 	 
	 
	 	 
	Credit Contact

	 	Administrative Contact
	 
	 	 






 









 





Schedule 9.6(c)




[FORM OF]

COMMITMENT TRANSFER SUPPLEMENT



     Reference is made to the Credit Agreement, dated as of June 18, 2004 (as amended, restated or
otherwise modified, the “Credit Agreement”), by and among NCI Building Systems, Inc., a
Delaware corporation (the “Borrower”), the Domestic Subsidiaries of the Borrower from time
to time party thereto (collectively the “Guarantors”), the lenders from time to time party
thereto (the “Lenders”) and Wachovia Bank, National Association, as Administrative Agent
for the Lenders (the “Administrative Agent”). Unless otherwise defined herein, terms
defined in the Credit Agreement and used herein shall have the meanings provided in the Credit
Agreement.



                                             
 (the “Transferor Lender”) and                    
                     (the
“Purchasing Lender”) agree as follows:



     1. For an agreed consideration, the Transferor Lender hereby irrevocably sells and assigns to
the Purchasing Lender, and the Purchasing Lender hereby irrevocably purchases and assumes from the
Transferor Lender subject to and in accordance with the terms hereof and the Credit Agreement, as
of the Transfer Funding Date (as defined below), (a) all of the Transferor Lender’s rights and
obligations under the Credit Agreement with respect to those credit facilities contained in the
Credit Agreement as set forth on Schedule 1, and all instruments delivered pursuant thereto
to the extent related to the principal amount and Commitment Percentage set forth on Schedule
1 attached hereto of all of such outstanding rights and obligations of the Transferor Lender
under the respective facilities set forth on Schedule 1 (including any letters of credit,
guarantees, and swingline loans included in such facilities) and (b) to the extent permitted to be
assigned under applicable law, all claims, suits, causes of action and any other right of the
Transferor Lender (in its capacity as a Lender) against any Person, whether known or unknown,
arising under or in connection with the Credit Agreement, any other documents or instruments
delivered pursuant thereto or the loan transactions governed thereby or in any way based on or
related to any of the foregoing, including, but not limited to, contract claims, tort claims,
malpractice claims, statutory claims and all other claims at law or in equity related to the rights
and obligations sold and assigned pursuant to clause (a) above (the rights and obligations sold and
assigned pursuant to clauses (a) and (b) above being referred to herein collectively as, the
“Assigned Interest”). Such sale and assignment is without recourse to the Transferor
Lender and, except as expressly provided in this Commitment Transfer Supplement, without
representation or warranty by the Transferor Lender.



     2. The Transferor Lender (a) represents and warrants that (i) it is the legal and beneficial
owner of the Assigned Interest, (ii) the Assigned Interest is free and clear of any lien,
encumbrance or other adverse claim and (iii) it has full power and authority, and has taken all
action necessary, to execute and deliver this Commitment Transfer Supplement and to consummate the
transactions contemplated hereby; (b) assumes no responsibility with respect to (i) any statements,
warranties or representations made in or in connection with the Credit Agreement or any other
Credit Document, (ii) the execution, legality, validity, enforceability, genuineness, sufficiency
or value of the Credit Documents or any collateral thereunder, (iii) the financial condition of the
Borrower, any of its Subsidiaries or Affiliates or any other Person obligated in respect of any
Credit Document or (iv) the performance or observance by the Borrower, any of its Subsidiaries or
Affiliates or any other Person of any of their respective obligations under the Credit Documents;
and (c) in the case of an assignment of the entire remaining amount of the Transferor Lender’s
Commitments, attaches any Note(s) held by it evidencing the Assigned Interest and requests that the
Administrative Agent exchange the attached Note(s) upon the request of the Purchasing Lender for a
new Note(s) payable to the Purchasing Lender.



     3. The Purchasing Lender (a) represents and warrants that (i) it has full power and
authority, and has taken all action necessary, to execute and deliver this Commitment Transfer
Supplement and to consummate the transactions contemplated hereby and to become a Lender under the
Credit Agreement, (ii) from and after the Effective Date (as defined below), it shall be bound by
the provisions of the Credit Documents as a Lender thereunder and, to the extent of the Assigned
Interest, shall have the obligations of a Lender thereunder and (iii) it has received a copy of the
Credit Agreement, together with copies of the financial statements referred to in Section 3.1
thereof, the financial statements delivered pursuant to Section 5.1 thereof, if any, and such other
documents and information as it has deemed appropriate to make its own credit analysis and decision
to enter into this Commitment Transfer Supplement and to purchase the Assigned Interest on the
basis of which it has made such analysis and decision independently and without reliance on the
Administrative Agent or any other Lender; (b) agrees that it will (i) independently and without
reliance upon the Transferor Lender, 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 Credit Agreement, the other Credit Documents or
any other



 









 




instrument or document furnished pursuant hereto or thereto and (ii) perform in accordance with its
terms all the obligations which by the terms of the Credit Documents are required to be performed
by it as a Lender including, if it is organized under the laws of a jurisdiction outside the United
States, its obligations pursuant to Section 2.18 of the Credit Agreement; and (c) appoints and
authorizes the Administrative Agent to take such action as agent on its behalf and to exercise such
powers and discretion under the Credit Agreement, the other Credit 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.




     4. The effective date of this Commitment Transfer Supplement shall be                      ___, 20___(the
“Effective Date”). Following the execution of this Commitment Transfer Supplement, it will
be delivered to the Administrative Agent for acceptance by it and recording by the Administrative
Agent pursuant to the Credit Agreement, effective as of the Effective Date.



     5. The funding date for this Commitment Transfer Supplement shall be                      ___, 20___(the
“Transfer Funding Date”). On the Transfer Funding Date, any registration and processing
fee shall be due and payable to the Administrative Agent pursuant to Section 9.6 of the Credit
Agreement.



     6. Upon such acceptance, recording and payment of applicable registration and processing
fees, from and after the Transfer Funding 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 Purchasing Lender whether such amounts have accrued prior to the Transfer Funding
Date or accrue subsequent to the Transfer Funding Date. The Transferor Lender and the Purchasing
Lender shall make all appropriate adjustments in payments by the Administrative Agent for periods
prior to the Transfer Funding Date or, with respect to the making of this assignment, directly
between themselves.



     7. From and after the Transfer Funding Date, (a) the Purchasing Lender shall be a party to
the Credit Agreement and, to the extent provided in this Commitment Transfer Supplement, have the
rights and obligations of a Lender thereunder and under the other Credit Documents and shall be
bound by the provisions thereof and (b) the Transferor Lender shall, to the extent provided in this
Commitment Transfer Supplement, relinquish its rights and be released from its obligations under
the Credit Agreement.



     8. This Commitment Transfer supplement shall be governed by and construed in accordance with
the laws of the State of North Carolina.



     9. This Commitment Transfer Supplement shall be binding upon, and inure to the benefit of, the
parties hereto and their respective successors and assigns. This Commitment Transfer Supplement
may be executed in any number of counterparts, which together shall constitute one instrument.
Delivery of an executed counterpart of a signature page of this Commitment Transfer Supplement by
telecopy shall be effective as delivery of a manually executed counterpart of this Commitment
Transfer Supplement.



     IN WITNESS WHEREOF, the parties hereto have caused this Commitment Transfer Supplement to be
executed as of the date first above written by their respective duly authorized officers on
Schedule 1 hereto.



 









 





SCHEDULE 1

TO COMMITMENT TRANSFER SUPPLEMENT




Effective Date:                     , 200_


Name of Transferor Lender:                                         



Name of Purchasing Lender:                                         



Transfer Funding Date of Assignment:                                         



Assigned Interest:




	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	Principal Amount of	 	 	 	 	 	 	 
	 	 	Commitment/Loans	 	 	Commitment Percentage	 	 	 	 
	Facility Assigned	 	Assigned	 	 	Assigned1	 	 	CUSIP Number	 
	 
	 	$	 	 	 	 	%	 	 	 	 	 






	 	 	 	 	 	 	 	 	 	 	 
	[NAME OF PURCHASING LENDER]	 	 	 	[NAME OR TRANSFEROR LENDER]	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	By

	 	 
 

Name:
	 	 	 	By
	 	 
 

Name:
	 	 
	 

	 	Title:
	 	 	 	 	 	Title:	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	Accepted (if required):	 	 	 	Consented to (if required):	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	WACHOVIA BANK, NATIONAL ASSOCIATION,

as the Administrative Agent, Swingline Lender and

Issuing Lender	 	 	 	NCI BUILDING SYSTEMS, INC.,

a Delaware corporation,

as the Borrower	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	By:

	 	 
 

Name:
	 	 	 	By:
	 	 
 

Name:
	 	 
	 

	 	Title:
	 	 	 	 	 	Title:	 	 








 




			
	1	 	Calculate the Commitment Percentage that
is assigned to at least 9 decimal places and show as a percentage of the
aggregate commitments of all Lenders.






 











 





	 	 	 	 	 
	 

	 	Delaware

The first State

	 	PAGE 1






     I, HARRIET SMITH WINDSOR, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY
CERTIFY “NCI BUILDING SYSTEMS, INC.” IS DULY INCORPORATED UNDER THE LAWS OF THE STATE OF
DELAWARE AND IS IN GOOD STANDING AND HAS A LEGAL CORPORATE EXISTENCE SO FAR AS THE RECORDS OF THIS
OFFICE SHOW, AS OF THE TENTH DAY OF JUNE, A. D. 2004.



     AND
I DO HEREBY FURTHER CERTIFY THAT THE SAID “NCI BUILDING SYSTEMS, INC. ” WAS
INCORPORATED ON THE TWENTY-THIRD DAY OF DECEMBER, A.D. 1991.



     AND I DO HEREBY FURTHER CERTIFY THAT THE ANNUAL REPORTS HAVE BEEN FILED TO DATE.



     AND I DO HEREBY FURTHER CERTIFY THAT THE FRANCHISE TAXES HAVE BEEN PAID TO DATE.



						
	 	 	 	 	 	 
	 	2282840 8300



040429629
	 	
	 	/s/ Harriet Smith Windsor

Harriet Smith Windsor, Secretary of State


AUTHENTICATION: 3163668

DATE: 06-10-04






 









 





	 	 	 	 	 
	 

	 	Delaware

The first State

	 	PAGE 1






     I,
HARRIET SMITH WINDSOR, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY
CERTIFY “NCI HOLDING CORP. ” IS DULY INCORPORATED UNDER THE
LAWS OF THE STATE OF DELAWARE AND IS
IN GOOD STANDING AND HAS A LEGAL CORPORATE EXISTENCE SO FAR AS THE RECORDS OF THIS OFFICE SHOW, AS
OF THE TENTH DAY OF JUNE, A.D. 2004.



     AND
I DO HEREBY FURTHER CERTIFY THAT THE SAID “NCI HOLDING CORP. ” WAS INCORPORATED ON THE
TWENTY-SEVENTH DAY OF APRIL, A.D. 1993.



     AND I DO HEREBY FURTHER CERTIFY THAT THE ANNUAL REPORTS HAVE BEEN FILED TO DATE.



     AND I DO HEREBY FURTHER CERTIFY THAT THE FRANCHISE TAXES HAVE BEEN PAID TO DATE.



						
	 	 	 	 	 	 
	 	2334301 8300



040429640
	 	
	 	/s/ Harriet Smith Windsor
Harriet Smith Windsor, Secretary of State


AUTHENTICATION: 3163178

DATE: 06-10-04






 









 









	CERTIFICATE OF EXISTENCE WITH STATUS IN GOOD STANDING
1, DEAN HELLER, the duly elected and qualified Nevada Secretary of State, do hereby certify
that i am, by the laws of said State, the custodian of the records relating to filings by
corporations, non-profit corporations, corporation soles, limited-liability companies, limited
partnerships, limited-liabiiity limited partnerships, limited-liability partnerships and business
trusts pursuant to Title 7 of the Nevada Revised Statutes which are either presently in a status of
good standing or were in good standing for a time period subsequent of 1976 and am the proper
officer to execute this certificate.
I further certify that the records of the Nevada Secretary of State, at the date of this
certificate, evidence, NCI OPERATING CORP., as a corporation duly organized under the laws of
Nevada and existing under and by virtue of the laws of the State of Nevada since April 12, 1993,
and is in good standing in this state.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the Great Seal of State, at my
office, in Carson City. Nevada, on June 10, 2004.
DEAN HELLER Secretary of State By Certification Clerk





 









 





					
	Corporations Section

P.O. Box 13697

Austin, Texas 78711-3697
	 	
	 	Geoffrey S. Connor

Secretary of State






Office of the Secretary of State



The undersigned, as Secretary of State of Texas, does hereby certify that the document,
Articles Of Incorporation for METAL COATERS OF CALIFORNIA, INC. (filing number: 148370600), a
Domestic Business Corporation, was filed in this office on March 25, 1998.



It is further certified that the entity status in Texas is active.




In testimony whereof, I have hereunto signed my name

officially and caused to be impressed hereon the Seal

of State at my office in Austin, Texas on June 10,
2004.




			
	 	 	 
	
	 	
Geoffrey S. Connor

Secretary of State






Come
visit us on the internet at http://www.sos.state.tx.us/




					
	PHONE(5l2) 463-5555
	 	FAX(512) 463-5709
	 	TTY7-1-1
	Prepared by: SOS-WEB	 	 	 	 






 









 





			
	Certificate of Account Status — Letter of Good Standing
	 	Page 1 of 1








Texas Comptroller Of Public Accounts

CAROLE
KEETON STRAYHORN • COMPTROLLER • AUSTIN, TEXAS 78774





June 18, 2004



CERTIFICATE OF ACCOUNT STATUS



THE STATE OF TEXAS

COUNTY OF TRAVIS



I, Carole Keeton Strayhorn, Comptroller of Public Accounts of the State of
Texas, DO HEREBY CERTIFY that according to the records of this office




METAL COATERS OF CALIFORNIA INC



is, as of this date, in good standing with this office having no franchise tax reports or
payments due at this time. This certificate is valid through the date that the next
franchise tax report will be due May 16, 2005.



This certificate does not make a representation as to the status of the corporation’s
Certificate of Authority, if any, with the Texas Secretary of State.



This certificate is valid for the purpose of conversion when the converted entity is
subject to franchise tax as required by law. This certificate is not valid for the
purpose of dissolution, merger, or withdrawal.




GIVEN UNDER MY HAND AND SEAL OF

OFFICE in the City of Austin, this

18th day of June, 2004 A.D.






Carole Keeton Strayhorn

Texas Comptroller




Taxpayer number: 17605693443

File number: 0148370600







			
	 	 	 
	 	 	 






 









 





					
	Corporations Section

P.O. Box 13697

Austin, Texas 78711-3697
	 	
	 	Geoffrey S. Connor

Secretary of State






Office of the Secretary of State



The
undersigned, as Secretary of State of Texas, does hereby certify that the
document, Certificate Of Limited Partnership for A & S BUILDING SYSTEMS, L.P. (filing number:
9396110), a Domestic Limited Partnership (LP), was filed in this office on December 16, 1996.



It is further certified that the entity status in Texas is active.




In testimony whereof, I have hereunto signed my name

officially and caused to be impressed hereon the Seal

of State at my office in Austin, Texas on June 10,
2004.




			
	 	 	 
	
	 	
Geoffrey S. Connor

Secretary of State






Come visit us on the internet at http://www.sos.state.tx.us/




					
	PHONE(5l2) 463-5555
	 	FAX(512) 463-5709
	 	TTY7-1-1
	Prepared by: SOS-WEB	 	 	 	 






 









 





					
	Corporations Section

P.O. Box 13697

Austin, Texas 78711-3697
	 	
	 	Geoffrey S. Connor

Secretary of State






Office of the Secretary of State



The undersigned, as Secretary of State of Texas, does hereby certify that the document,
Certificate Of Limited Partnership for NCI BUILDING SYSTEMS, L.P.
(filing number: 6812410), a
Domestic Limited Partnership (LP), was filed in this office on April 21, 1993.



It is further certified that the entity status in Texas is active.




In testimony whereof, I have hereunto signed my name

officially and caused to be impressed hereon the Seal

of State at my office in Austin, Texas on June 10,
2004.




			
	 	 	 
	
	 	
Geoffrey S. Connor

Secretary of State






Come visit us on the internet at http://www.sos.state.tx.us/




					
	PHONE(5l2) 463-5555
	 	FAX(512) 463-5709
	 	TTY7-1-1
	Prepared by: SOS-WEB	 	 	 	 






 









 





					
	Corporations Section

P.O. Box 13697

Austin, Texas 78711-3697
	 	
	 	Geoffrey S. Connor

Secretary of State






Office of the Secretary of State



The undersigned, as Secretary of State of Texas, does hereby certify that the document,
Certificate Of Limited Partnership for METAL BUILDING COMPONENTS, L.P. (filing number: 10797310),
a Domestic Limited Partnership (LP), was filed in this office on April 24, 1998.



It is further certified that the entity status in Texas is active.




In testimony whereof, 1 have hereunto signed my name

officially and caused to be impressed hereon the Seal

of State at my office in Austin, Texas on June 10,
2004.




			
	 	 	 
	
	 	
Geoffrey S. Connor

Secretary of State






Come visit us on the internet at http://www.sos.state.tx.us/




					
	PHONE(5l2) 463-5555
	 	FAX(512) 463-5709
	 	TTY7-1-1
	Prepared by: SOS-WEB	 	 	 	 






 









 





					
	Corporations Section

P.O. Box 13697

Austin, Texas 78711-3697
	 	
	 	Geoffrey S. Connor

Secretary of State






Office of the Secretary of State



The undersigned, as Secretary of State of Texas, does hereby certify that the document,
Certificate Of Limited Partnership for NCI Group, L.P. (filing number: 10797510), a Domestic
Limited Partnership (LP), was filed in this office on April 24, 1998.



It is further certified that the entity status in Texas is active.




In testimony whereof, I have hereunto signed my

name officially and caused to be impressed hereon the

Seal of State at my office in Austin, Texas on June
10, 2004.




			
	 	 	 
	
	 	
Geoffrey S. Connor

Secretary of State






Come visit us on the internet at http://www.sos.state.tx.us/




					
	PHONE(5l2) 463-5555
	 	FAX(512) 463-5709
	 	TTY7-1-1
	Prepared by: SOS-WEB	 	 	 	 







 











 





SECURITY AGREEMENT




     THIS SECURITY AGREEMENT (as amended, modified, extended, renewed, restated or replaced from time to
time, the “Security Agreement”), is entered into as of June 18, 2004, among NCI BUILDING
SYSTEMS, INC., a Delaware corporation (the “Borrower”), each of the Domestic Subsidiaries
of the Borrower from time to time party hereto (individually a “Guarantor” and collectively
the “Guarantors”: the Guarantors, together with the Borrower, individually an
“Obligor” and collectively the “Obligors”) and WACHOVIA BANK, NATIONAL ASSOCIATION,
in its capacity as Administrative Agent under the Credit Agreement referred to below (in such
capacity, the “Administrative Agent”) for the several banks and other financial
institutions as may from time to time become parties to such Credit Agreement (individually a
“Lender” and collectively the “Lenders”).



RECITALS




     WHEREAS, the Borrower, the Guarantors, the Lenders and the Administrative Agent are entering into
contemporaneously herewith that certain Credit Agreement dated as of the date hereof (as amended,
modified, extended, renewed, restated or replaced from time to time, the “Credit
Agreement”), pursuant to which the Lenders have agreed to make Loans and to issue and/or
acquire participation interests in Letters of Credit upon the terms and subject to the conditions
set forth therein;



     WHEREAS, it is a condition precedent to the effectiveness of the Credit Agreement and the
obligations of the Lenders to make their respective Loans and to issue and/or acquire participation
interests in Letters of Credit under the Credit Agreement that the Obligors shall have executed and
delivered this Security Agreement to the Administrative Agent for the ratable benefit of the
Lenders; and



     WHEREAS, the Obligors constitute one integrated financial enterprise, and the Extensions of Credit
to any Obligor shall benefit directly and indirectly each Obligor.



     NOW, THEREFORE, in consideration of these premises and other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows:



     1. Definitions.




     (a) Unless otherwise defined herein, capitalized terms used herein shall have the meanings ascribed
to such terms in the Credit Agreement, and the following terms which are defined in the Uniform
Commercial Code from time to time in effect in the State of North Carolina (the “UCC”) are
used herein as so defined: Accessions, Accounts, As-Extracted Collateral, Chattel Paper, Commercial
Tort Claims, Consumer Goods, Control, Deposit Accounts, Documents, Electronic Chattel Paper,
Equipment, Farm Products, Fixtures, General Intangibles, Goods, Instruments, Inventory, Investment



 









 




Property, Letter-of-Credit Rights, Manufactured Homes, Payment Intangibles, Proceeds, Securities
Account, Securities Intermediary, Security Entitlement, Software, Supporting Obligations and
Tangible Chattel Paper.




     (b) For purposes of this Security Agreement, the term “Lender” shall include any Hedging
Agreement Provider.



     (c) In addition, the following term shall have the following meaning:



     “Secured Obligations”: (a) all of the Credit Party Obligations (including obligations under
Secured Hedging Agreements), howsoever evidenced, created, incurred or acquired, whether primary,
secondary, direct, contingent, or joint and several and (b) all expenses and charges, legal and
otherwise, incurred by the Administrative Agent and/or the Lenders in collecting or enforcing any
of the Credit Party Obligations or in realizing on or protecting any security therefor, including
without limitation the security granted hereunder.



2. Grant of Security Interest in the Collateral.




     (a) To secure the prompt payment and performance in full when due, whether by lapse of time,
acceleration, mandatory prepayment or otherwise, of the Secured Obligations, each Obligor hereby
grants to the Administrative Agent, for the ratable benefit of the Lenders, a continuing security
interest in, and a right to set off against, any and all right, title and interest of such Obligor
in and to the following, whether now owned or existing or owned, acquired, or arising hereafter
(collectively, the “Collateral”):




	 	(i)	 	all Accounts;
	 
	 	(ii)	 	all cash and Cash Equivalents;
	 
	 	(iii)	 	all Chattel Paper;
	 
	 	(iv)	 	those certain Commercial Tort Claims of such Obligor set forth on Schedule 2(a)(iv)
attached hereto (as such Schedule may be updated from time to time by such Obligor);
	 
	 	(v)	 	all Copyright Licenses;
	 
	 	(vi)	 	all Copyrights;
	 
	 	(vii)	 	all Deposit Accounts;
	 
	 	(viii)	 	all Documents;
	 
	 	(ix)	 	all Equipment, provided, however, that with respect to Equipment, “Collateral” shall
not include or be deemed to include Equipment included





2









 






	 	 	 	in heating, ventilating and air conditioning systems and fixtures, electrical systems and fixtures,
plumbing systems and fixtures, building mechanical systems and fixtures, or any other base building
systems and fixtures constituting fixtures under the UCC and necessary to, or primarily utilized in
connection with, the operation of the real property and improvements on or to which any such
systems and fixtures are affixed or attached;
	 
	 	(x)	 	all Fixtures, provided, however, that with respect to Fixtures, “Collateral” shall not
include or be deemed to include Fixtures included in heating, ventilating and air conditioning
systems and fixtures, electrical systems and fixtures, plumbing systems and fixtures, building
mechanical systems and fixtures, or any other base building systems and fixtures constituting
fixtures under the UCC and necessary to, or primarily utilized in connection with, the operation of
the real property and improvements on or to which any such systems and fixtures are affixed or
attached;
	 
	 	(xi)	 	all General Intangibles;
	 
	 	(xii)	 	all Goods;
	 
	 	(xiii)	 	all Instruments;
	 
	 	(xiv)	 	all Inventory, provided, however, that with respect to Inventory, “Collateral” shall
not include Goods owned by customers of an Obligor and delivered by such customers to such Obligor
for processing by such Obligor at such Obligor’s location in the ordinary course of business;
	 
	 	(xv)	 	all Investment Property;
	 
	 	(xvi)	 	all Letter-of-Credit Rights;
	 
	 	(xvii)	 	all Material Contracts and all such other agreements, contracts, leases, licenses, tax
sharing agreements or hedging arrangements now or hereafter entered into by an Obligor, as such
agreements may be amended or otherwise modified from time to time (collectively, the “Assigned
Agreements”), including without limitation, (A) all rights of an Obligor to receive moneys due and
to become due under or pursuant to the Assigned Agreements, (B) all rights of an Obligor to receive
proceeds of any insurance, indemnity, warranty or guaranty with respect to the Assigned Agreements,
(C) claims of an Obligor for damages arising out of or for breach of or default under the Assigned
Agreements and (D) the right of an Obligor to terminate the Assigned Agreements, to perform
thereunder and to compel performance and otherwise exercise all remedies thereunder;




3









 






	 	(xviii)	 	all Payment Intangibles;
	 
	 	(xix)	 	all Patent Licenses;
	 
	 	(xx)	 	all Patents;
	 
	 	(xxi)	 	all Trademark Licenses;
	 
	 	(xxii)	 	all Trademarks;
	 
	 	(xxiii)	 	all Software;
	 
	 	(xxiv)	 	all Supporting Obligations;
	 
	 	(xxv)	 	all books, records, ledger cards, files, correspondence, computer programs, tapes, disks, and
related data processing software (owned by such Obligor or in which it has an interest) that at any
time evidence or contain information relating to any Collateral or are otherwise necessary or
helpful in the collection thereof or realization thereupon;
	 
	 	(xxvi)	 	all other personal property of any kind or type whatsoever owned by such Obligor; and
	 
	 	(xxvii)	 	to the extent not otherwise included, all, Accessions, Proceeds and products of any and all
of the foregoing;




provided that to the extent that the provisions of any Assigned Agreement, lease or license
of Software, or any Copyright License, Patent License or Trademark License expressly limit or
prohibit any assignment thereof and/or any grant of a security interest therein, the security
interest granted hereby, and each assignment thereof pursuant to any of the Credit Documents, shall
be limited so as to conform to each such limitation and prohibition, and the Administrative Agent
will not enforce its security interest in, or assignment of, any Obligor’s rights thereunder (other
than in respect of the Proceeds thereof) in contravention of such limitation or prohibition for so
long as the same continues, it being understood that upon the request of the Administrative Agent,
each Obligor will in good faith use commercially reasonable efforts to obtain consent for the
creation of a security interest in favor of the Administrative Agent for the benefit of the Lenders
(and to the Administrative Agent’s or any Lender’s enforcement of such security interest) in such
Loan Party’s rights under such Assigned Agreement, lease or license of Software, or such Copyright
License, Patent License or Trademark License, as the case may be.




     (b) The Obligors and the Administrative Agent, on behalf of the Lenders, hereby acknowledge
and agree that the security interest created hereby in the Collateral (i)



4









 




constitutes continuing collateral security for all of the Secured Obligations, whether now
existing or hereafter arising and (ii) is not to be construed as a present assignment of any
Assigned Agreement, lease or license of Software or of any Intellectual Property.




     (c) The term “Collateral” shall include any Secured Hedging Agreement and any rights of the
Obligors thereunder only for purposes of this Section 2.



3. Provisions
Relating to Accounts, Contracts and Agreements.



     (a) Anything herein to the contrary notwithstanding, each of the Obligors shall remain
liable under each of its Accounts, contracts and agreements 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 to each such Account or the terms of such contract or
agreement. Neither the Administrative Agent nor any Lender shall have any obligation or liability
under any Account (or any agreement giving rise thereto), contract or agreement by reason of or
arising out of this Security Agreement or the receipt by the Administrative Agent or any Lender of
any payment relating to such Account, contract or agreement pursuant hereto, nor shall the
Administrative Agent or any Lender be obligated in any manner to perform any of the obligations of
an Obligor under or pursuant to any Account (or any agreement giving rise thereto), contract or
agreement, 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 under any Account
(or any agreement giving rise thereto), contract or agreement, to present or file any claim, to
take any action to enforce any performance or to collect the payment of any amounts which may have
been assigned to it or to which it may be entitled at any time or times.



     (b) The Administrative Agent hereby authorizes the Obligors to collect the Accounts;
provided, that the Administrative Agent may curtail or terminate such authority at any time
after the occurrence and during the continuation of an Event of Default. If required by the
Administrative Agent at any time after the occurrence and during the continuation of an Event of
Default, any payments of Accounts, when collected by the Obligors (i) shall be forthwith (and in
any event within two (2) Business Days) deposited by the Obligors in a collateral account
maintained under the sole dominion and control of the Administrative Agent, subject to withdrawal
by the Administrative Agent for the account of the Lenders only as provided in Section 12 hereof,
and (ii) until so turned over, shall be held by the Obligors in trust for the Administrative Agent
and the Lenders, segregated from other funds of the Obligors.



     (c) At any time and from time to time, the Administrative Agent shall have the right, but
not the obligation, to make test verifications of the Accounts in any manner and through any medium
that it reasonably considers advisable, and the Obligors shall furnish all such assistance and
information as the Administrative Agent may require in connection with such test verifications.
Upon the occurrence and continuation of an Event of Default, upon the Administrative Agent’s
request and at the expense of the



5









 






Obligors, the Obligors shall cause independent public accountants or others satisfactory to
the Administrative Agent to furnish to the Administrative Agent reports showing reconciliations,
aging and test verifications of, and trial balances for, the Accounts. The Administrative Agent in
its own name or in the name of others may communicate with account debtors on the Accounts to
verify with them to the Administrative Agent’s satisfaction the existence, amount and terms of any
Accounts.



     4. Representations and Warranties. Each Obligor hereby represents and warrants to the
Administrative Agent, for the benefit of the Lenders, that so long as any of the Secured
Obligations (other than contingent indemnity obligations that survive termination of the Credit
Documents pursuant to the stated terms thereof) remain outstanding, any Credit Document or Secured
Hedging Agreement is in effect, and until all of the Commitments shall have been terminated:




(a)
Chief Executive Office; Books & Records; Legal Name; State of Formation. As of
the Closing Date, each Obligor’s chief executive office and chief place of business are (and for
the prior four months has been) located at the locations set forth on Schedule 3.19(c) to
the Credit Agreement, and as of the Closing Date each Obligor keeps its books and records at such
locations. As of the Closing Date, the exact legal name of each Obligor is as shown opposite the
captions “Borrower” and “Guarantors” on the signature pages of this Security Agreement and the
state of incorporation or organization of each such Obligor is (and for the prior four months has
been) the jurisdiction designated for such Obligor on Schedule 3.3 to the Credit Agreement.
No Obligor has in the four months preceding the Closing Date changed its name, been party to a
merger, consolidation or other change in structure or used any tradename not disclosed on
Schedule 4(a) attached hereto (as updated from time to time).




(b) Location of Tangible Collateral. As of the Closing Date, the location of all
tangible Collateral owned by each Obligor is as shown on
Schedule 3.19(b) to the Credit
Agreement, other than tangible Collateral (i) in possession of the Administrative Agent, (ii) in
transit to one of the locations shown on Schedule 3.19(b) to the Credit Agreement, (iii)
temporarily deployed off-site in the ordinary course of business of such Obligor, (iv) consisting
of Inventory temporarily at locations of third-party vendors pending shipment to an Obligor, (v)
consisting of Inventory being processed at third-party processing facilities, or (vi) temporarily
absent for purposes of maintenance or repair.




(c) Ownership. Each Obligor is the legal and beneficial owner of its Collateral and
has the right to pledge, sell, assign or transfer the same, except to the extent such right with
respect to any Assigned Agreement, lease or license of Software, or such Copyright License, Patent
License or Trademark License, or the property subject thereto is limited or precluded by the
express terms of such Assignment Agreement, lease or license of Software, or Copyright License,
Patent License or Trademark License, as the case may be.



6









 





     (d) This Security Agreement creates a valid security interest in favor of the Administrative
Agent, for the benefit of the Lenders, in the Collateral of such Obligor and, when properly
perfected by (i) the filing of an appropriate financing statement under the UCC, (ii) the granting
of Control to the Administrative Agent and (iii) the filing of an appropriate notice with the
United States Patent and Trademark Office or the United States Copyright Office, as appropriate for
the item or type of Collateral in question, shall constitute a valid first priority (subject to
Permitted Liens), perfected security interest in such Collateral, to the extent such security
interest can be perfected by (i) the filing of an appropriate financing statement covering such
Collateral under the UCC, (ii) the granting of Control of such Collateral to the Administrative
Agent, or (iii) the filing of an appropriate notice covering such Collateral with the United States
Patent and Trademark Office or the United States Copyright Office, free and clear of all Liens
except for Permitted Liens.


     (e) Consents.
Except for (i) the filing or recording of UCC financing statements, (ii) the filing of appropriate notices with the United States Patent and Trademark
Office and the United States Copyright Office, (iii) obtaining Control to perfect the Liens created
by this Security Agreement and/or (iv) compliance with the Federal Assignment of Claims Act or
comparable state law, no consent or authorization of, filing with, or other act by or in respect
of, any arbitrator or Governmental Authority and, other than as may be required with respect to
Assigned Agreements, leases or licenses of Software, or Copyright Licenses, Patent Licenses or
Trademark Licenses, no consent of any other Person (including, without limitation, any stockholder,
member or creditor of such Obligor), is required (A) for the grant by such Obligor of the security
interest in the Collateral granted hereby or for the execution, delivery or performance of this
Security Agreement by such Obligor or (B) to the extent Article 9 of the UCC is applicable thereto,
for the perfection of such security interest or the exercise by the Administrative Agent of the
rights and remedies provided for in this Security Agreement.


     (f) Types of Collateral. None of the Collateral consists of, or is the Proceeds of,
As-Extracted Collateral, Consumer Goods, Farm Products, Manufactured Homes or standing timber (as
such term is used in the UCC).


     (g) Accounts. With respect to the Accounts of the Obligors: (i) the goods sold and/or
services furnished giving rise to each Account are not subject to any security interest or Lien
except the first priority, perfected security interest granted to the Administrative Agent herein
and except for Permitted Liens; (ii) each Account and the papers and documents of the applicable
Obligor relating thereto are genuine and in all material respects what they purport to be; (iii)
each Account arises out of a bona fide transaction for goods sold and delivered (or in the process
of being delivered) by an Obligor or for services actually rendered by an Obligor, which
transaction was conducted in the ordinary course of the Obligor’s business and was completed in
accordance with the terms of any documents pertaining thereto; (iv) no Account of an Obligor with a
value of $1,000,000 individually or $2,500,000 in the aggregate for all such Accounts is evidenced
by any Instrument or Chattel Paper unless such Instrument or Chattel Paper has been theretofore
endorsed over and


7








 






delivered to, or submitted to the Control of, the Administrative Agent to the extent reasonably
requested by the Administrative Agent; (v) the aggregate amount of the Accounts, as shown on the
applicable Obligor’s books and records, and on all statements which may be delivered to the
Administrative Agent with respect thereto, is owed to the applicable Obligor subject to immaterial
adjustments; and (vi) there are no facts, events or occurrences which in any material respect
impair the validity or enforcement of the Accounts, taken as a whole, or tend to materially reduce,
in excess of the reserves maintained by the Obligors in accordance with GAAP, the aggregate amount
payable thereunder as shown on the applicable Obligor’s books and records.




     (h) Inventory. No Inventory of an Obligor is held by a third party (other than an Obligor)
pursuant to consignment, sale or return, sale on approval or similar arrangement other than
Inventory with a value, individually or in the aggregate, less than $1,000,000 so held in the
ordinary course of business on a basis consistent with past practices.




     (i) Intellectual Property. That the representations and warranties made by each Obligor
regarding Intellectual Property in Section 3.16 of the Credit Agreement are true and
correct.




     (j) Documents, Instruments and Chattel Paper. All Documents, Instruments and Chattel Paper
describing, evidencing or constituting Collateral with a value in excess of $1,000,000 individually
and $2,500,000 in the aggregate for all such Collateral, are, to the Obligors’ knowledge, complete,
valid, and genuine.




     (k) Equipment. With respect to each Obligor’s Equipment: (i) such Obligor has good and
marketable title (subject to Permitted Liens) to all owned Equipment; and (ii) all such Equipment
material to the conduct of the businesses of the Obligors and their Subsidiaries is in normal
operating condition and repair, ordinary wear and tear alone excepted (subject to casualty events),
and is suitable for the uses to which it is customarily put in the conduct of such Obligor’s
business.




     (1) Collateral Requiring Control to Perfect. Set forth on Schedule 4(T) is a
description of all Deposit Accounts, Electronic Chattel Paper, Letter-of-Credit Rights, Securities
Accounts and uncertificated Investment Property of the Obligors, including the name and address of
(i) in the case of a Deposit Account, the depository institution, (ii) in the case of Electronic
Chattel Paper, the account debtor, (iii) in the case of Letter-of-Credit Rights, the issuer or
nominated person, as applicable, and (iv) in the case of a Securities Account or other
uncertificated Investment Property, the Securities Intermediary or issuer, as applicable.



     5. Covenants. Each Obligor covenants that, so long as any of the Secured Obligations (other
than contingent indemnity obligations that survive termination of the Credit Documents pursuant to
the stated terms thereof) remain outstanding, any Credit Document or



8









 




Secured Hedging Agreement is in effect, and until all of the Commitments shall have been
terminated, such Obligor shall:





     (a) Perfection of Security Interest by Filing, Etc.. Each Obligor hereby
authorizes the Administrative Agent to prepare and file such financing statements (including
continuation statements) or amendments thereof or supplements thereto or other instruments as the
Administrative Agent may from time to time deem necessary or appropriate in order to perfect and
maintain the security interests granted hereunder in accordance with the UCC, including, without
limitation, any financing statement that describes the Collateral as “all personal property” or
“all assets” of such Obligor or that describes the Collateral in some other manner as the
Administrative Agent reasonably deems necessary or advisable. Each Obligor shall also execute
and deliver to the Administrative Agent and/or file such agreements, assignments or instruments
(including affidavits, notices, reaffirmations and amendments and restatements of existing
documents, as the Administrative Agent may reasonably request) and do all such other things as the
Administrative Agent may reasonably deem necessary or appropriate (i) to assure to the
Administrative Agent its security interests hereunder are perfected, including (A) such financing
statements (including continuation statements) or amendments thereof or supplements thereto or
other instruments as the Administrative Agent may from time to time reasonably request in order to
perfect and maintain the security interests granted hereunder in accordance with the UCC and any
other personal property security legislation in the appropriate state(s) or province(s), (B) with
regard to Copyrights, a Notice of Grant of Security Interest in Copyrights for filing with the
United States Copyright Office in the form of Schedule 5(a)-1 attached hereto, (C) with
regard to Patents, a Notice of Grant of Security Interest in Patents for filing with the United
States Patent and Trademark Office in the form of
Schedule 5(a)-2 attached hereto and (D)
with regard to Trademarks, a Notice of Grant of Security Interest in Trademarks for filing with the
United States Patent and Trademark Office in the form of
Schedule 5(a)-3 attached hereto,
(ii) to consummate the transactions contemplated hereby and (iii) to otherwise protect and assure
the Administrative Agent of its rights and interests hereunder. Each Obligor agrees to mark its
books and records to reflect the security interest of the Administrative Agent in the Collateral.




     (b) Perfection of Security Interest by Possession. If (i) any amount payable in excess of
$1,000,000 individually or $2,500,000 in the aggregate for all such amounts under or in connection
with any of the Collateral shall be or become evidenced by any Instrument, Tangible Chattel Paper
or Supporting Obligation or (ii) if any Collateral with a value in excess of $1,000,000
individually or $2,500,000 in the aggregate for all such Collateral shall be stored or shipped
subject to a Document or (iii) if any Collateral shall consist of Investment Property in the form
of certificated securities, upon reasonable request by the Administrative Agent, deliver to the
Administrative Agent such Instruments, Chattel Paper, Supporting Obligations, Documents or
Investment Property to the Administrative Agent, duly endorsed in a manner satisfactory to the
Administrative Agent, to be held as Collateral pursuant to this Security Agreement.



9









 





     (c) Perfection of Security Interest Through Control. If any Collateral shall
consist of Deposit Accounts, Electronic Chattel Paper, Letter-of-Credit Rights, Securities Accounts
or uncertificated Investment Property, execute and deliver (and, with respect to any Collateral
consisting of a Securities Account or uncertificated Investment Property, cause the Securities
Intermediary or the issuer, as applicable, with respect to such Investment Property to execute and
deliver) to the Administrative Agent all control agreements, assignments, instruments or other
documents as reasonably requested by the Administrative Agent for the purposes of obtaining and
maintaining Control of such Collateral.



     (d) Other Liens. Defend its interests in the Collateral against the claims and
demands of all other parties claiming an interest therein, except to the extent that the failure to
do so could not, individually or in the aggregate reasonably be expected to have a Material Adverse
Effect, and keep the Collateral free from all Liens, except for Permitted Liens. Neither the
Administrative Agent nor any Lender authorizes any Obligor to, and no Obligor shall, sell,
exchange, transfer, assign, lease or otherwise dispose of the Collateral or any interest therein,
except as permitted under the Credit Agreement.



     (e) Preservation of Collateral. Keep the Collateral useful and necessary in such
Obligor’s business in good order, condition and repair in all material respects, ordinary wear and
tear, casualty and obsolescence excepted; not use the Collateral in violation of the provisions of
this Security Agreement or any other agreement relating to the Collateral or any policy insuring
the Collateral or any applicable Requirement of Law; not permit any material Collateral to be or
become a fixture to real property or an accession to other personal property unless the
Administrative Agent has a valid, perfected and first priority security interest for the benefit of
the Lenders (subject to Permitted Liens) in such real or personal property, and not, without the
prior written consent of the Administrative Agent, alter or remove any identifying symbol or number
on its Equipment.



     (f) Changes in Structure or Location. Not, without providing 30 days (or such
shorter time period as the Administrative Agent may agree) prior written notice to the
Administrative Agent and without filing (or confirming that the Administrative Agent has filed)
such financing statements and amendments to any previously filed financing statements as the
Administrative Agent may require, (i) alter its legal existence or, in one transaction or a series
of transactions, merge into or consolidate with any other entity (except another Obligor in a
manner permitted under the Credit Agreement), or sell all or substantially all of its assets
(except to another Obligor in a manner permitted under the Credit Agreement), (ii) change its state
of incorporation or organization, or (iii) change its registered legal name.



     (g) Inspection. Allow the Administrative Agent or its representatives to visit and
inspect the Collateral as set forth in Section 5.6 of the Credit Agreement.



10









 





     (h) Collateral Held by Warehouseman, Bailee, etc. If any material Collateral is at any
time in the possession or control of a warehouseman, bailee or any agent or processor of such
Obligor (other than as contemplated in Sections 4(b) and 4(h) hereof), (i) notify the
Administrative Agent of such possession, (ii) if requested by the Administrative Agent, notify such
Person of the Administrative Agent’s security interest for the benefit of the Lenders in such
Collateral, (iii) if requested by the Administrative Agent, instruct such Person to hold all such
Collateral for the Administrative Agent’s account subject to the Administrative Agent’s
instructions and (iv) if requested by the Administrative Agent, use commercially reasonable efforts
to obtain an acknowledgment from such Person that it is holding such Collateral for the benefit of
the Administrative Agent.



     (i) Treatment of Accounts, (i) Not grant or extend the time for payment of any Account, or
compromise or settle any Account for less than the full amount thereof, or release any person or
property, in whole or in part, from payment thereof, or allow any credit or discount thereon,
other than as normal and customary in the ordinary course of an Obligor’s business and (ii)
maintain at its principal place of business a record of Accounts consistent with customary business
practices.



     (j) Covenants Relating to Inventory.




     (i) Maintain, keep and preserve its material Inventory in good salable condition at its own cost
and expense in accordance with past practices.




     (ii) Comply with all reporting requirements set forth in the Credit Agreement with respect to
Inventory.




     (iii) Other than as contemplated by Sections 4(b) and 4(h), if any of the Inventory with a value in
excess of $1,000,000 is at any time evidenced by a document of title, promptly notify the
Administrative Agent thereof and, upon the request of the Administrative Agent, deliver such
document of title to the Administrative Agent.



     (k) Covenants Relating to Copyrights, Patents and Trademarks. Each Obligor will comply with
the requirements relating to Copyrights, Patents and Trademarks set forth in Section 5.13
of the Credit Agreement.



     (1) New Patents, Copyrights and Trademarks. Provide the Administrative Agent with an update
to Schedule 3.16 to the Credit Agreement as required pursuant to Section 5.2(h) and (ii)
(A) with respect to new Copyrights listed on such updates, a duly executed Notice of Grant of
Security Interest in Copyrights, (B) with respect to new Patents listed on such updates, a duly
executed Notice of Grant of Security Interest in Patents, (C) with respect to new Trademarks listed
on such updates, a duly executed Notice of Grant of Security Interest in Trademarks or (D) such
other duly executed documents as the Administrative Agent may request in a form acceptable to
counsel for the Administrative Agent and suitable for recording to evidence the security interest
of the Administrative.



11









 





Agent on behalf of the Lenders in the Copyright, Patent or Trademark which is the subject of
such new application.




     (m) Commercial
Tort Claims: Notice of Litigation. (i) Forward to the Administrative Agent
on a quarterly basis concurrently with the delivery of the financial statements referred to in
Section 5.1(b) of the Credit Agreement written notification of any and all Commercial Tort Claims
with a potential claim value in excess of $1,000,000 individually or $2,500,000 in the aggregate of
the Obligors, including, but not limited to, any and all actions, suits, and proceedings before any
court or Governmental Authority by or affecting such Obligor or any of its Subsidiaries and (ii)
execute and deliver such statements, documents and notices and do and cause to be done all such
things as may be required by the Administrative Agent, or required by law, including all things
which may from time to time be necessary under the UCC to fully create, preserve, perfect and
protect the priority of the Administrative Agent’s security interest in any Commercial Tort Claims.



     (n) Status of Collateral as Personal Property. At all times maintain the Collateral as
personal property and not affix any of the material Collateral to any real property (other than any
real property with respect to which there has been filed in favor of the Administrative Agent, for
the benefit of the Lenders, an appropriate UCC financing statement covering Fixtures against such
Obligor) in a manner which would change its nature from personal property to real property or a
Fixture.



     (l) Regulatory Approvals. Promptly, and at its expense, execute and deliver, or cause to be
executed and delivered, all applications, certificates, instruments, registration statements, and
all other documents and papers the Administrative Agent may reasonably request and as may be
required by law in connection with the obtaining of any Governmental Approval or the consent,
approval, registration, qualification or authorization of any other Person deemed necessary or
appropriate for the effective exercise of any of the rights under this Security Agreement. Without
limiting the generality of the foregoing, if an Event of Default shall have occurred and be
continuing, each Obligor shall take any action which the Administrative Agent may reasonably
request in order to transfer and assign to the Administrative Agent, or to such one or more third
parties as the Administrative Agent may designate, or to a combination of the foregoing, each
Government Approval of such Obligor. To enforce the provisions of this subsection, upon the
occurrence and during the continuance of an Event of Default, the Administrative Agent is empowered
to request the appointment of a receiver from any court of competent jurisdiction. Such receiver
shall be instructed to seek from the Governmental Authority an involuntary transfer of control of
each such Governmental Approval for the purpose of seeking a bona fide purchaser to whom control
will ultimately be transferred. Each Obligor hereby agrees to authorize such an involuntary
transfer of control upon the request of the receiver so appointed, and, if such Obligor shall
refuse to authorize the transfer, its approval may be required by the court. Upon the occurrence
and during the continuance of an Event of Default, such Obligor shall further use its commercially
reasonable efforts to assist in obtaining Governmental Approvals, if required, for any action or
transaction contemplated by this Security



12









 




Agreement, including, without limitation, the preparation, execution and filing with the
Governmental Authority of such Obligor’s portion of any necessary or appropriate application for
the approval of the transfer or assignment of any portion of the assets (including any Governmental
Approval) of such Obligor. Because each Obligor agrees that the Administrative Agent’s remedy at
law for failure of such Obligor to comply with the provisions of this subsection would be
inadequate and that such failure would not be adequately compensable in damages, such Obligor
agrees that the covenants contained in this subsection may be specifically enforced, and such
Obligor hereby waives and agrees not to assert any defenses against an action for specific
performance of such covenants.




     (o) Insurance. Insure, repair and replace the Collateral of such Obligor as set forth in
the Credit Agreement. All proceeds derived from insurance on the Collateral shall be subject to the
security interest of the Administrative Agent hereunder, subject to the provisions of the Credit
Agreement relating to Recovery Events and the permitted uses of Net Cash Proceeds derived
therefrom.



     (p) Covenants Relating to the Assigned Agreements.




     (i) Upon the commercially reasonable request of the Administrative Agent, each Obligor shall, at
its expense, (A) furnish to the Administrative Agent copies of all material notices, requests and
other documents received by such Obligor under or pursuant to the Assigned Agreements, and such
other material information and reports regarding the Assigned Agreements and (B) make to any other
party to any Assigned Agreement such demands and requests for information and reports or for action
as an Obligor is entitled to make thereunder.




     (ii) Unless it is in the ordinary course of business consistent with past practices of an Obligor,
no Obligor shall (A) cancel or terminate any Assigned Agreement of such Obligor or consent to or
accept any cancellation or termination thereof; (B) amend or otherwise modify any Assigned
Agreement of such Obligor or give any consent, waiver or approval thereunder, (C) waive any default
under or breach of any Assigned Agreement of such Obligor, or (D) take any other action in
connection with any Assigned Agreement of such Obligor which would impair the value of the interest
or rights of such Obligor thereunder or which would impair the interests or rights of the
Administrative Agent



     (q) Material Contracts. Forward to the Administrative Agent on a quarterly basis
concurrently with the delivery of the financial statements referred to in Section 5.1(b) of the
Credit Agreement written notification of any new Material Contract. Upon the request of the
Administrative Agent, with respect to any Material Contract, each Obligor will (i) to the extent
permitted under such Material Contract, execute and deliver (or cause to be executed and delivered)
to the Administrative Agent a collateral assignment of such Material Contract to such collateral
assignment, in a form acceptable to the Administrative Agent, (ii) to the extent such collateral
assignment is not permitted under such Material Contract, use commercially reasonable efforts to
cause the other



13









 






parties to such Material Contract to consent to such collateral assignment and upon receiving
such consent(s) such Obligor will execute and deliver (or cause to be executed and delivered) to
the Administrative Agent a collateral assignment of such Material Contract and a consent by such
Obligor, to such collateral assignment, in each case in a form acceptable to the Administrative and
(iii) do any act or execute any additional documents reasonably required by the Administrative
Agent to ensure to the Administrative Agent the effectiveness and first priority of its security
interest in such Material Contract (subject to Permitted Liens).



     6. Power of Attorney for Perfection of Liens. Each Obligor hereby irrevocably makes,
constitutes and appoints the Administrative Agent, its nominee or any other person whom the
Administrative Agent may designate, as such Obligor’s attorney-in-fact with full power and for the
limited purpose to sign in the name of such Obligor any financing statements, or amendments and
supplements to financing statements, continuation financing statements, notices or any similar
documents which in the Administrative Agent’s reasonable discretion would be necessary, appropriate
or convenient in order to perfect and maintain perfection of the security interests granted
hereunder, such power, being coupled with an interest, being and remaining irrevocable so long as
any of the Secured Obligations (other than contingent indemnity obligations that survive
termination of the Credit Documents pursuant to the stated terms thereof) remain outstanding, any
Credit Document or Secured Hedging Agreement is in effect, and until all of the Commitments shall
have been terminated. In the event for any reason the law of any jurisdiction other than North
Carolina becomes or is applicable to the Collateral of any Obligor or any part thereof, or to any
of the Secured Obligations, such Obligor agrees to execute and deliver all such instruments and to
do all such other things as the Administrative Agent in its sole discretion reasonably deems
necessary or appropriate to preserve, protect and enforce the security interests of the
Administrative Agent under the law of such other jurisdiction (and, if an Obligor shall fail to do
so promptly upon the request of the Administrative Agent, then the Administrative Agent may execute
any and all such requested documents on behalf of such Obligor pursuant to the power of attorney
granted hereinabove).



     7. License of Intellectual Property. The Obligors hereby assign, transfer and
convey to the Administrative Agent, effective upon the occurrence of any Event of Default, the
nonexclusive right and license to use all Intellectual Property owned or used by any Obligor that
relate to the Collateral and any other collateral granted by the Obligors as security for the
Secured Obligations, together with any goodwill associated therewith, all to the extent necessary
to enable the Administrative Agent to use, possess and realize on the Collateral and to enable any
successor or assign to enjoy the benefits of the Collateral. This right and license shall inure to
the benefit of all successors, assigns and transferees of the Administrative Agent and its
successors, assigns and transferees, whether by voluntary conveyance, operation of law, assignment,
transfer, foreclosure, deed in lieu of foreclosure or otherwise. Such right and license is granted
free of charge, without requirement that any monetary payment whatsoever be made to the Obligors.



     8. Special Provisions Regarding Inventory. Notwithstanding anything to the
contrary contained in this Security Agreement, each Obligor may, unless and until an Event of



14









 




Default occurs and is continuing and the Administrative Agent instructs such Obligor
otherwise, without further consent or approval of the Administrative Agent, use, consume, sell,
lease and exchange its Inventory in the ordinary course of its business as presently conducted,
whereupon, in the case of such a sale or exchange, the security interest created hereby in the
Inventory so sold or exchanged (but not in any Proceeds arising from such sale or exchange) shall
cease immediately without any further action on the part of the Administrative Agent.




     9. Performance of Obligations; Advances by Administrative Agent. On failure of any Obligor
to perform any of the covenants and agreements contained herein, the Administrative Agent may, at
its sole option and in its sole discretion, perform or cause to be performed the same and in so
doing may expend such sums as the Administrative Agent may reasonably deem advisable in the
performance thereof, including, without limitation, the payment of any insurance premiums, the
payment of any taxes, a payment to obtain a release of a Lien or potential Lien, expenditures made
in defending against any adverse claim and all other expenditures which the Administrative Agent
may make for the protection of the security interest hereof or may be compelled to make by
operation of law. All such sums and amounts so expended shall be repayable by the Obligors on a
joint and several basis promptly upon timely notice thereof and demand therefor, shall constitute
additional Secured Obligations and shall bear interest from the date said amounts are expended at
the ABR Default Rate. No such performance of any covenant or agreement by the Administrative Agent
on behalf of any Obligor, and no such advance or expenditure therefor, shall relieve the Obligors
of any default under the terms of this Security Agreement, the other Credit Documents or any
Secured Hedging Agreement. The Administrative Agent may make any payment hereby authorized in
accordance with any bill, statement or estimate procured from the appropriate public office or
holder of the claim to be discharged without inquiry into the accuracy of such bill, statement or
estimate or into the validity of any tax assessment, sale, forfeiture, tax lien, title or claim
except to the extent such payment is being contested in good faith by an Obligor in appropriate
proceedings and against which adequate reserves are being maintained in accordance with GAAP.



     10. Events of Default.



     The occurrence of an event which under the Credit Agreement would constitute an Event of Default
shall be an event of default hereunder (an “Event of Default”).



     11. Remedies.




(a) General Remedies. Upon the occurrence of an Event of Default and during continuation
thereof, the Administrative Agent and the Lenders shall have, in addition to the rights and
remedies provided herein, in the Credit Documents, in any Secured Hedging Agreement or by law
(including, but not limited to, levy of attachment, garnishment and the rights and remedies set
forth in the Uniform Commercial Code of the jurisdiction applicable to the affected Collateral),
the rights and remedies of a secured party under the UCC (regardless of whether the UCC is the law
of the jurisdiction where the rights and remedies are asserted and regardless of whether the UCC
applies to the affected Collateral), and further, the Administrative Agent may, with or without
judicial



15









 




process or the aid and assistance of others, (i) enter on any premises on which any of the
Collateral may be located and, without resistance or interference by the Obligors, take possession
of the Collateral, (ii) dispose of any Collateral on any such premises, (iii) require the Obligors
to assemble and make available to the Administrative Agent at the expense of the Obligors any
Collateral at any place and time designated by the Administrative Agent which is reasonably
convenient to both parties, (iv) remove any Collateral from any such premises for the purpose of
effecting sale or other disposition thereof, and/or (v) to the fullest extent permitted by law, at
any place and time or times, sell and deliver any or all Collateral held by or for it at public or
private sale, by one or more contracts, in one or more parcels, for cash, upon credit or otherwise,
at such prices and upon such terms as the Administrative Agent deems advisable, in its sole
discretion (subject to any and all mandatory legal requirements). Neither the Administrative
Agent’s compliance with any applicable state or federal law in the conduct of such sale, nor its
disclaimer of any warranties relating to the Collateral, shall be considered to adversely affect
the commercial reasonableness of such sale. In addition to all other sums due the Administrative
Agent and the Lenders with respect to the Secured Obligations, the Obligors shall pay the
Administrative Agent and each of the Lenders all reasonable documented costs and expenses incurred
by the Administrative Agent or any such Lender, including, but not limited to, reasonable
attorneys’ fees and court costs, in obtaining or liquidating the Collateral, in enforcing payment
of the Secured Obligations, or in the prosecution or defense of any action or. proceeding by or
against the Administrative Agent or the Lenders or the Obligors concerning any matter arising out
of or connected with this Security Agreement, any Collateral or the Secured Obligations, including,
without limitation, any of the foregoing arising in, arising under or related to a case under the
Bankruptcy Code. Each Obligor agrees that any requirement of reasonable notice shall be met if such
notice is personally served on or mailed, postage prepaid, to the Borrower in accordance with the
notice provisions of Section 9.2 of the Credit Agreement at least 10 days before the time of sale
or other event giving rise to the requirement of such notice. The Administrative Agent and the
Lenders shall not be obligated to make any sale or other disposition of the Collateral regardless
of notice having been given. To the extent permitted by applicable law, any Lender may be a
purchaser at any such sale. To the extent permitted by applicable law, each of the Obligors
hereby waives all of its rights of redemption with respect to any such sale. Subject to the
provisions of applicable law, the Administrative Agent and the Lenders may postpone or cause the
postponement of the sale of all or any portion of the Collateral by announcement at the time and
place of such sale, and such sale may, without further notice, to the extent permitted by law, be
made at the time and place to which the sale was postponed, or the Administrative Agent and the
Lenders may further postpone such sale by announcement made at such time and place.




     (b) Remedies Relating to Accounts. Upon the occurrence of an Event of Default and during
the continuation thereof, whether or not the Administrative Agent has exercised any or all of its
rights and remedies hereunder, the Administrative Agent shall have the right to enforce any
Obligor’s rights against any account debtors and obligors on such Obligor’s Accounts. Each Obligor
acknowledges and agrees that the Proceeds of its Accounts remitted to or on behalf of the
Administrative Agent in accordance with the



16









 




provisions of this Section shall be solely for the Administrative Agent’s own convenience and
that such Obligor shall not have any right, title or interest in such Proceeds or in any such other
amounts except as expressly provided herein. To the extent required by the Administrative Agent,
each Obligor agrees to execute any document or instrument, and to take any action, necessary under
applicable law (including the Federal Assignment of Claims Act) in order for the Administrative
Agent to exercise its rights and remedies (or be able to exercise its rights and remedies at some
future date) with respect to any Accounts of such Obligor where the account debtor is a
Governmental Authority. The Administrative Agent and the Lenders shall have no liability or
responsibility to any Obligor for acceptance of a check, draft or other order for payment of money
bearing the legend “payment in full” or words of similar import or any other restrictive legend or
endorsement or be responsible for determining the correctness of any remittance. Each Obligor
hereby agrees to indemnify the Administrative Agent and the Lenders from and against all
liabilities, damages, losses, actions, claims, judgments, costs, expenses, charges and reasonable
attorneys’ fees suffered or incurred by the Administrative Agent or the Lenders (each, an
“Indemnified Party”) because of the maintenance of the foregoing arrangements except as
relating to or arising out of the gross negligence or willful misconduct of an Indemnified Party or
its officers, employees or agents. In the case of any investigation, litigation or other
proceeding, the foregoing indemnity shall be effective whether or not such investigation,
litigation or proceeding is brought by an Obligor, its directors, shareholders or creditors or an
Indemnified Party or any other Person or any other Indemnified Party is otherwise a party thereto.




     (c) Access. In addition to the rights and remedies hereunder, upon the occurrence of
an Event of Default and during the continuation thereof, the Administrative Agent shall have the
right to enter and remain upon the various premises of the Obligors without cost or charge to the
Administrative Agent, and use the same, together with materials, supplies, books and records of the
Obligors for the purpose of collecting and liquidating the Collateral, or for preparing for sale
and conducting the sale of the Collateral, whether by foreclosure, auction or otherwise. In
addition, the Administrative Agent may remove Collateral, or any part thereof, from such premises
and/or any records with respect thereto, in order to effectively collect or liquidate such
Collateral. If the Administrative Agent exercises its right to take possession of the Collateral,
each Obligor shall also at its expense perform any and all other steps reasonably requested by the
Administrative Agent to preserve and protect the security interest hereby granted in the
Collateral, such as placing and maintaining signs indicating the security interest of the
Administrative Agent, appointing overseers for the Collateral and maintaining inventory records.



     (d) Nonexclusive Nature of Remedies. Failure by the Administrative Agent or the
Lenders to exercise any right, remedy or option under this Security Agreement, any other Credit
Document, any Secured Hedging Agreement or as provided by law, or any delay by the Administrative
Agent or the Lenders in exercising the same, shall not operate as a waiver of any such right,
remedy or option. No waiver hereunder shall be effective unless it is in writing, signed by the
party against whom such waiver is sought to be



17









 




enforced and then only to the extent specifically stated, which in the case of the
Administrative Agent or the Lenders shall only be granted as provided herein. To the extent
permitted by law, neither the Administrative Agent, the Lenders, nor any party acting as attorney
for the Administrative Agent or the Lenders, shall be liable hereunder for any acts or omissions or
for any error of judgment or mistake of fact or law other than their gross negligence or willful
misconduct hereunder. The rights and remedies of the Administrative Agent and the Lenders under
this Security Agreement shall be cumulative and not exclusive of any other right or remedy which
the Administrative Agent or the Lenders may have.




     (e) Retention of Collateral. In addition to the rights and remedies hereunder, upon
the occurrence of an Event of Default and during the continuation thereof, the Administrative Agent
may, after providing the notices required by Sections 9-620 and 9-621 of the UCC (or any successor
sections of the UCC) or otherwise complying with the notice requirements of applicable law of the
relevant jurisdiction, accept or retain all or any portion of the Collateral in satisfaction of the
Secured Obligations. Unless and until the Administrative Agent shall have provided such notices,
however, the Administrative Agent shall not be deemed to have retained any Collateral in
satisfaction of any Secured Obligations for any reason.



     (f) Deficiency. In the event that the proceeds of any sale, collection or realization
are insufficient to pay all amounts to which the Administrative Agent or the Lenders are legally
entitled, the Obligors shall be jointly and severally liable for the deficiency, together with
interest thereon at the ABR Default Rate, together with the costs of collection and the reasonable
fees of any attorneys employed by the Administrative Agent to collect such deficiency. Any surplus
remaining after the full payment and satisfaction of the Secured Obligations shall be returned to
the Obligors or to whomsoever a court of competent jurisdiction shall determine to be entitled
thereto.



     (g) Other Security. To the extent that any of the Secured Obligations are now or
hereafter secured by property other than the Collateral (including, without limitation, real and
other personal property and securities owned by an Obligor), or by a guarantee, endorsement or
property of any other Person, then the Administrative Agent shall have the right to proceed against
such other property, guarantee or endorsement upon the occurrence and during the continuation of
any Event of Default, and the Administrative Agent shall have the right, in its sole discretion, to
determine which rights, security, Liens, security interests or remedies the Administrative Agent
shall at any time pursue, relinquish, subordinate, modify or take with respect thereto, without in
any way modifying or affecting any of them or any of the Administrative Agent’s rights or the
Secured Obligations under this Security Agreement, under any other of the Credit Documents or under
any Secured Hedging Agreement.



18









 





12. Rights of the Administrative Agent.




     (a) Power of Attorney. In addition to other powers of attorney contained herein, each
Obligor hereby designates and appoints the Administrative Agent, on behalf of the Lenders, and each
of its designees or agents, as attorney-in-fact of such Obligor, irrevocably and with power of
substitution, with authority to take any or all of the following actions upon the occurrence and
during the continuation of an Event of Default:




     (i) to demand, collect, settle, compromise, adjust and give discharges and releases concerning the
Collateral of such Obligor, all as the Administrative Agent may reasonably determine in respect of
such Collateral;




     (ii) to commence and prosecute any actions at any court for the purposes of collecting any
Collateral and enforcing any other right in respect thereof;




     (iii) to defend, settle, adjust or compromise any action, suit or proceeding brought with respect
to the Collateral and, in connection therewith, give such discharge or release as the
Administrative Agent may deem reasonably appropriate;




     (iv) to receive, open and if commercially reasonable, dispose of mail addressed to an Obligor and
endorse checks, notes, drafts, acceptances, money orders, bills of lading, warehouse receipts or
other instruments or documents evidencing payment, shipment or storage of the goods giving rise to
the Collateral of such Obligor, or securing or relating to such Collateral, on behalf of and in the
name of such Obligor;




     (v) in connection with the Administrative Agent’s or any Lender’s exercise of its rights and
remedies hereunder, to sell, assign, transfer, make any agreement in respect of, or otherwise deal
with or exercise rights in respect of, any Collateral or the goods or services which have given
rise thereto, as fully and completely as though the Administrative Agent were the absolute owner
thereof for all purposes;




     (vi) to adjust and settle claims under any insurance policy relating to the Collateral;




     (vii) to execute and deliver and/or file all financing statements, continuation financing
statements, security agreements, affidavits, notices and other agreements, instruments and
documents that the Administrative Agent may determine necessary in order to perfect and maintain
the security interests and Liens granted in this Security Agreement and in



19









 






order to permit the Administrative Agent or any Lender to exercise its rights and remedies
hereunder;




     (viii) to institute any foreclosure proceedings that the Administrative Agent may deem appropriate;




     (ix) to execute any document or instrument, and to take any action, necessary under applicable law
(including the Federal Assignment of Claims Act) in order for the Administrative Agent to exercise
its rights and remedies (or to be able to exercise its rights and remedies at some future date)
with respect to any Account of an Obligor where the account debtor is a Governmental Authority; and




     (x) to do and perform all such other acts and things as the Administrative Agent may reasonably
deem to be necessary, proper or convenient in connection with the exercise of its rights and
remedies with respect to the Collateral.


This power of attorney is a power coupled with an interest and shall be irrevocable for so long as
any of the Secured Obligations (other than contingent indemnity obligations that survive
termination of the Credit Documents pursuant to the stated terms thereof) remain outstanding, any
Credit Document or Secured Hedging Agreement is in effect, and until all of the Commitments shall
have been terminated. The Administrative Agent shall be under no duty to exercise or withhold the
exercise of any of the rights, powers, privileges and options expressly or implicitly granted to
the Administrative Agent in this Security Agreement, and shall not be liable for any failure to do
so or any delay in doing so except to the extent such failure or delay is a result of its gross
negligence or willful misconduct. The Administrative Agent shall not be liable for any act or
omission or for any error of judgment or any mistake of fact or law in its individual capacity or
its capacity as attorney-in-fact except acts or omissions resulting from its gross negligence or
willful misconduct. This power of attorney is conferred on the Administrative Agent solely to
protect, preserve and realize upon its security interest in the Collateral.




     (b) Assignment
by the Administrative Agent. The Administrative Agent may from time to
time assign the Secured Obligations or any portion thereof and/or the Collateral or any portion
thereof to a successor Administrative Agent, and the assignee shall be entitled to all of the
rights and remedies of the Administrative Agent under this Security Agreement in relation thereto.



     (c) The Administrative Agent’s Duty of Care. Other than the exercise of reasonable
care to assure the safe custody of the Collateral while being held by the Administrative Agent
hereunder, the Administrative Agent shall have no duty or liability to preserve rights pertaining
thereto, it being understood and agreed that the Obligors shall be responsible for preservation of
all rights in the Collateral, and the Administrative Agent shall be relieved of all responsibility
for the Collateral upon surrendering it or



20









 






tendering the surrender of it to the Obligors. The Administrative Agent shall be deemed to
have exercised reasonable care in the custody and preservation of the Collateral in its possession
if the Collateral is accorded treatment substantially equal to that which the Administrative Agent
accords its own property, which shall be no less than the treatment employed by a reasonable and
prudent agent in the industry, it being understood that the Administrative Agent shall not have
responsibility for taking any necessary steps to preserve rights against any parties with respect
to any of the Collateral. In the event of a public or private sale of Collateral pursuant to
Section 9 hereof, the Administrative Agent shall have no obligation to clean-up, repair or
otherwise prepare the Collateral for sale.



     13. Application of Proceeds. After the exercise of remedies by the Administrative
Agent or the Lenders pursuant to Section 7.2 of the Credit Agreement (or after the Commitments
shall automatically terminate and the Loans (with accrued interest thereon) and all other amounts
under the Credit Documents (including without limitation the maximum amount of all contingent
liabilities under Letters of Credit) shall automatically become due and payable in accordance with
the terms of such Section), any proceeds of the Collateral, when received by the Administrative
Agent, any of the Lenders or any Hedging Agreement Provider in cash or its equivalent, will be
applied in reduction of the Secured Obligations in the order set forth in Section 2.12(b) of the
Credit Agreement, and each Obligor irrevocably waives the right to direct the application of such
payments and proceeds and acknowledges and agrees that the Administrative Agent shall have the
continuing and exclusive right to apply and reapply any and all such proceeds in the Administrative
Agent’s sole discretion, notwithstanding any entry to the contrary upon any of its books and
records.



     14. Costs of Counsel. If at any time hereafter, whether upon the occurrence of an
Event of Default or not, the Administrative Agent employs counsel to prepare or consider
amendments, waivers or consents with respect to this Security Agreement, or to take action or make
a response in or with respect to any legal or arbitral proceeding relating to this Security
Agreement or relating to the Collateral, or to protect the Collateral or exercise any rights or
remedies under this Security Agreement or with respect to the Collateral, then the Obligors agree
to promptly pay upon demand any and all such reasonable documented costs and expenses of the
Administrative Agent, all of which costs and expenses shall constitute Secured Obligations
hereunder.



     15. Continuing Agreement.




     (a) This Security Agreement shall be a continuing agreement in every respect and shall remain in
full force and effect so long as any of the Secured Obligations (other than contingent indemnity
obligations that survive termination of the Credit Documents pursuant to the stated terms thereof)
remain outstanding, any Credit Document or Secured Hedging Agreement is in effect, and until all of
the Commitments shall have been terminated. Upon such payment and termination, this Security
Agreement shall be automatically terminated and the Administrative Agent and the Lenders shall,
upon the request and at the expense of the Obligors, forthwith release all of the Liens and
security interests granted hereunder and shall execute and/or deliver all UCC termination



21









 






statements and/or other documents reasonably requested by the Obligors evidencing such
termination. Notwithstanding the foregoing all releases and indemnities provided hereunder shall
survive termination of this Security Agreement.




     (b) This Security Agreement shall continue to be effective or be automatically reinstated, as the
case may be, if at any time payment, in whole or in part, of any of the Secured Obligations is
rescinded or must otherwise be restored or returned by the Administrative Agent or any Lender as a
preference, fraudulent conveyance or otherwise under any bankruptcy, insolvency or similar law, all
as though such payment had not been made; provided that in the event payment of all or any
part of the Secured Obligations is rescinded or must be restored or returned, all reasonable costs
and expenses (including without limitation any reasonable legal fees and disbursements) incurred by
the Administrative Agent or any Lender in defending and enforcing such reinstatement shall be
deemed to be included as a part of the Secured Obligations.



     16. Amendments;
Waivers; Modifications. This Security Agreement and the provisions
hereof may not be amended, waived, modified, changed, discharged or terminated except as set forth
in Section 9.1 of the Credit Agreement.



     17. Successors in Interest. This Security Agreement shall create a continuing
security interest in the Collateral and shall be binding upon each Obligor, its successors and
assigns and shall inure, together with the rights and remedies of the Administrative Agent and the
Lenders hereunder, to the benefit of the Administrative Agent and the Lenders and their successors
and permitted assigns; provided, however, that, other than in connection with a
transaction permitted under Section 6.5(a)(v) of the Credit Agreement, none of the Obligors may
assign its rights or delegate its duties hereunder without the prior written consent of each Lender
or the Required Lenders, as required by the Credit Agreement. To the fullest extent permitted by
law, each Obligor hereby releases the Administrative Agent and each Lender, each of their
respective officers, employees and agents and each of their respective successors and assigns, from
any liability for any act or omission relating to this Security Agreement or the Collateral, except
for any liability arising from the gross negligence or willful misconduct of the Administrative
Agent or such Lender or their respective officers, employees and agents, in each case as determined
by a court of competent jurisdiction.



     18. Notices. All notices required or permitted to be given under this Security
Agreement shall be in conformance with Section 9.2 of the Credit Agreement.



     19. Counterparts. This Security Agreement may be executed in any number of
counterparts, each of which where so executed and delivered shall be an original, but all of which
shall constitute one and the same instrument. A counterpart hereof (or signature page thereto)
signed and transmitted by any Person party hereto to the Administrative Agent (or its counsel) by
facsimile machine, telecopier or electronic mail is to be treated as an original. The signature of
such Person thereon, for purposes hereof, is to be considered as an original signature, and the
counterpart (or signature page thereto) so transmitted is to be considered to have the same binding
effect as an original signature on an original document. It shall not be necessary in



22









 




making proof of this Security Agreement to produce or account for more than one such
counterpart.




     20. Headings. The headings of the sections and subsections hereof are provided for
convenience only and shall not in any way affect the meaning, construction or interpretation of any
provision of this Security Agreement.



     21. Governing
Law; Submission to Jurisdiction and Service of Process; Arbitration; Waiver
of Jurv Trial; Venue. THIS SECURITY AGREEMENT 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 NORTH CAROLINA WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAWS  THAT WOULD CALL FOR
THE APPLICATION OF THE LAWS OF ANY OTHER JURISDICTION. The terms of Sections 9.13, 9.14 and 9.17
of the Credit Agreement are incorporated herein by reference, mutatis mutandis, and the parties
hereto agree to such terms.



     22. Severability. If any provision of this Security Agreement 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.



     23. Entirety. This Security Agreement, the other Credit Documents and the Secured
Hedging Agreements represent the entire agreement of the parties hereto and thereto, and supersede
all prior agreements and understandings, oral or written, if any, including any commitment letters
or correspondence relating to this Security Agreement, the other Credit Documents, the Secured
Hedging Agreements or the transactions contemplated herein and therein.



     24. Survival. All representations and warranties of the Obligors hereunder shall
survive the execution and delivery of this Security Agreement, the other Credit Documents and the
Secured Hedging Agreements, the delivery of the Notes and the making of the Loans and the issuance
of the Letters of Credit under the Credit Agreement.



     25. Joint and Several Obligations of Obligors.




     (a) Each of the Obligors is accepting joint and several liability hereunder in consideration
of the financial accommodations to be provided by the Lenders under the Credit Agreement, for the
mutual benefit, directly and indirectly, of each of the Obligors and in consideration of the
undertakings of each of the Obligors to accept joint and several liability for the obligations of
each of them.




     (b) Each of the Obligors jointly and severally hereby irrevocably and unconditionally
accepts, not merely as a surety but also as a co-debtor, joint and several liability with the other
Obligors with respect to the payment and performance of all of the Secured Obligations arising
under this Security Agreement, the other Credit Documents



23









 






and the Secured Hedging Agreements, it being the intention of the parties hereto that all the
Secured Obligations shall be the joint and several obligations of each of the Obligors without
preferences or distinction among them.




     (c) Notwithstanding any provision to the contrary contained herein, in any other of the Credit
Documents or in any Secured Hedging Agreement, to the extent the obligations of an Obligor shall be
adjudicated to be invalid or unenforceable for any reason (including, without limitation, because
of any applicable state or federal law relating to fraudulent conveyances or transfers) then the
obligations of such Obligor hereunder shall be limited to the maximum amount that is permissible
under applicable law (whether federal or state and including, without limitation, the Bankruptcy
Code).



     26. Rights of Required Lenders. All rights of the Administrative Agent hereunder, if
not exercised by the Administrative Agent, may be exercised by the Required Lenders.



24









 





     Each of the parties hereto has caused a counterpart of this Security Agreement to be duly executed
and delivered as of the date first above written.



	 	 	 	 	 	 	 
	BORROWER:	 	NCI BUILDING SYSTEMS, INC.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:

Name:
	 	/s/ Robert J. Medlock
 

Robert J. Medlock
	 	 
	 

	 	Title:
	 	Executive Vice President and
 Chief Financial Officer	 	 
	 
	 	 	 	 	 	 
	GUARANTORS:	 	NCI HOLDING CORP.

NCI OPERATING CORP.

METAL COATERS OF CALIFORNIA, INC.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:

Name:
	 	/s/ Robert J. Medlock
 

 Robert J. Medlock
	 	 
	 

	 	Title:
	 	Executive Vice President and
 Chief Financial Officer	 	 
	 
	 	 	 	 	 	 
	 	 	A & S BUILDING SYSTEMS, L.P.

NCI BUILDING SYSTEMS, L.P.

METAL BUILDING COMPONENTS, L.P.

NCI GROUP, L.P.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	NCI OPERATING CORP.,
 as General Partner	 	 
	 
	 	 	 	 	 	 
	 

	 	By:

Name:
	 	/s/ Robert J. Medlock
 

Robert J. Medlock
	 	 
	 

	 	Title:
	 	Executive Vice President and
 Chief Financial Officer	 	 





NCI BUILDING SYSTEMS, INC.

SECURITY AGREEMENT



 









 





     Accepted and agreed to as of the date first above written.



	 	 	 	 	 	 	 
	 	 	WACHOVIA BANK, NATIONAL ASSOCIATION,

as Administrative Agent	 	 
	 
	 	 	 	 	 	 
	 

	 	By: 

Name:
	 	/s/ Glenn F. Edwards
 

Glenn F. Edwards
	 	 
	 

	 	Title:
	 	Managing Director	 	 





NCI BUILDING SYSTEMS, INC.

SECURITY AGREEMENT


 









 





SCHEDULE 4(a)




NAME CHANGES/CHANGES IN

CORPORATE STRUCTURE/TRADENAMES



	 	 	 
	Changes of Legal Names:

	 	None
	 
	Mergers, Consolidations, Changes in Structure:

	 	None






Tradenames:




NCI Building Systems, Inc.



NCI Building Systems of Delaware

NCI




NCI Operating Corp.



Mesco Operating Company

DBCI Operating Company




NCI Holding Corp.



None




Metal Coaters of California, Inc.



Metal Coaters




NCI Building Systems, L.P.



Doors & Building Components

Metallic Buildings

Mid-West Steel Buildings

Steel Buildings

Mesco

Mesco Building Systems

Mesco Building Solutions

ECI Building Components

ECI

Insulated Panel Systems

IPS

Value Metal Buildings




 Page 1 of 2









 




Rhino Steel Building Systems

NCI Component Structures

NCI Building Group

Building Group

Able Door Manufacturing




A & S Building Systems, L.P.



A & S Building Group




Metal Building Components, L.P.:



NCI Metal Depot

NCI Metal Depots

ABC

American Building Components

MBCI

Metal Building Components

Ennis Rollforming

The Metal Warehouse

MBCI Components Group

Components Group

Midland Metals




NCI Group, L.P.



Metal Coaters of Mississippi

Metal Coaters of Georgia

Southwest Steel Trading

Metal-Prep

Metal Prep

MC Coaters Group

Coaters Group

DOUBLECOTE

NCI Metal Group




 Page 2 of 2









 





SCHEDULE 4(1)




DEPOSIT ACCOUNTS, ELECTRONIC CHATTEL PAPER,

LETTER-OF-CREDIT RIGHTS, SECURITIES ACCOUNTS

AND UNCERTIFICATED INVESTMENT PROPERTY


Deposit Accounts:



See Attached spreadsheet



Letter of Credit Rights:



See Attached spreadsheet



Uncertificated Investment Property:




	 	 	 
	NCI OPERATING CORP.
	 	 
	 
	 	 
	      A & S Building Systems, L.P.

	 	% general partnership interest
	 
	      NCI Building Systems, L.P.

	 	% general partnership interest
	 
	      Metal Building Components, L.P.

	 	 % general partnership interest
	 
	      NCI Group, L.P.

	 	% general partnership interest
	 
	 	 
	NCI HOLDING CORP.
	 	 
	 
	 	 
	      A & S Building Systems, L.P.

	 	% limited partnership interest
	 
	      NCI Building Systems, L.P.

	 	% limited partnership interest
	 
	      Metal Building Components, L.P.

	 	% limited partnership interest
	 
	      NCI Group, L.P.

	 	% limited partnership interest






[subject to comment by the Company)





 Page 1 of 1











 





SCHEDULE 5(a)-1




NOTICE



OF



GRANT OF SECURITY INTEREST



IN



COPYRIGHTS



United States Copyright Office




Gentlemen:




     Please be advised that pursuant to the Security Agreement dated as of June      , 2004 (as
the same may be amended, modified, extended or restated from time to time, the “Security
Agreement”) by and among the Obligors thereto (each an “Obligor” and collectively,
the “Obligors”) and Wachovia Bank, National Association, as Administrative Agent (the
“Administrative Agent”) for the lenders referenced therein (the “Lenders”),
the undersigned Obligor has granted a continuing security interest in and continuing lien
upon, the copyrights and copyright applications shown below to the Administrative Agent for
the ratable benefit of the Lenders:



COPYRIGHTS




	 	 	 	 	 
	 	 	Description of	 	 
	Copyright No.	 	Copyright	 	Date of Copyright
	 
	 	 	 	 





COPYRIGHT APPLICATIONS




	 	 	 	 	 
	 	 	Description of Copyright	 	Date of Copyright
	Copyright Application No.	 	Applied For	 	Application
	 
	 	 	 	 





SECURITY AGREEMENT



 









 





     The Obligors and the Administrative Agent, on behalf of the Lenders, hereby acknowledge
and agree that the security interest in the foregoing copyrights and copyright applications (i) may
only be terminated in accordance with the terms of the Security Agreement and (ii) is not to be
construed as an assignment of any copyright or copyright application.



	 	 	 	 	 	 	 
	 	 	Very truly yours,	 	 
	 
	 	 	 	 	 
	 	 	[Obligor]	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

	 	 
	 

	 	Name:	 	 	 	 
	 

	 	 	 	 

	 	 
	 

	 	Title:	 	 	 	 
	 

	 	 	 	 

	 	 






Acknowledged and Accepted:




WACHOVIA BANK, NATIONAL ASSOCIATION,

as Administrative Agent




	 	 	 	 	 
	By:
	 	 	 	 
	 

	 	 

	 	 
	Name:
	 	 	 	 
	 

	 	 

	 	 
	Title:
	 	 	 	 
	 

	 	 

	 	 







SECURITY AGREEMENT




 









 








SCHEDULE 5(a)-2




NOTICE



OF



GRANT OF SECURITY INTEREST



IN



PATENTS



United States Patent and Trademark Office




Gentlemen:




     Please be advised that pursuant to the Security Agreement dated as of June      ,
 2004 (the
“Security Agreement”) by and among the Obligors thereto (each an “Obligor” and
collectively, the “Obligors”) and Wachovia Bank, National Association, as Administrative
Agent (the “Administrative Agent”) for the lenders referenced therein (the
“Lenders”), the undersigned Obligor has granted a continuing security interest in and
continuing lien upon, the patents and patent applications shown below to the Administrative Agent
for the ratable benefit of the Lenders:



PATENTS




	 	 	 	 	 
	 	 	Description of	 	 
	Patent No.	 	Patent	 	Date of Patent
	 
	 	 	 	 





PATENT APPLICATIONS




	 	 	 	 	 
	 	 	Description of Patent	 	Date of Patent
	Patent Application No.	 	Applied For	 	Application
	 
	 	 	 	 





 









 






     The Obligors and the Administrative Agent, on behalf of the Lenders, hereby acknowledge
and agree that the security interest in the foregoing patents and patent applications (i) may only
be terminated in accordance with the terms of the Security Agreement and (ii) is not to be
construed as an assignment of any patent or patent application.



	 	 	 	 	 	 	 
	 	 	Very truly yours,	 	 
	 
	 	 	 	 	 
	 	 	[Obligor]	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

	 	 
	 

	 	Name:	 	 	 	 
	 

	 	 	 	 

	 	 
	 

	 	Title:	 	 	 	 
	 

	 	 	 	 

	 	 






Acknowledged and Accepted:




WACHOVIA BANK, NATIONAL ASSOCIATION,

as Administrative Agent




	 	 	 	 	 
	By:
	 	 	 	 
	 

	 	 

	 	 
	Name:
	 	 	 	 
	 

	 	 

	 	 
	Title:
	 	 	 	 
	 

	 	 

	 	 










2 









 








SCHEDULE 5(a)-3




NOTICE



OF



GRANT OF SECURITY INTEREST



IN



TRADEMARKS



United States Patent and Trademark Office




Gentlemen:




     Please be advised
that pursuant to the Security Agreement dated as of June      , 2004 (the
“Security Agreement”) by and among the Obligors thereto (each an “Obligor” and
collectively, the “Obligors”) and Wachovia Bank, National Association, as Administrative
Agent (the “Administrative Agent”) for the lenders referenced therein (the
“Lenders”), the undersigned Obligor has granted a continuing security interest in and
continuing lien upon, the trademarks and trademark applications shown below to the Administrative
Agent for the ratable benefit of the Lenders:



TRADEMARKS




	 	 	 	 	 
	 	 	Description of	 	 
	Trademark No.	 	Trademark	 	Date of Trademark
	 
	 	 	 	 





TRADEMARK APPLICATIONS




	 	 	 	 	 
	 	 	Description of Trademark	 	Date of Trademark
	Trademark Application No.	 	Applied For	 	Application
	 	 	 	 	 





 









 






     The Obligors and the Administrative Agent, on behalf of the Lenders, hereby acknowledge
and agree that the security interest in the foregoing trademarks and trademark applications (i) may
only be terminated in accordance with the terms of the Security Agreement and (ii) is not to be
construed as an assignment of any trademark or trademark application.



	 	 	 	 	 	 	 
	 	 	Very truly yours,	 	 
	 
	 	 	 	 	 	 
	 	 	 	 	 
	 	 	[Obligor]	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

	 	 
	 

	 	Name:	 	 	 	 
	 

	 	 	 	 

	 	 
	 

	 	Title:	 	 	 	 
	 

	 	 	 	 

	 	 






Acknowledged and Accepted:




WACHOVIA BANK, NATIONAL ASSOCIATION,

as Administrative Agent




	 	 	 	 	 
	By:
	 	 	 	 
	 

	 	 

	 	 
	Name:
	 	 	 	 
	 

	 	 

	 	 
	Title:
	 	 	 	 
	 

	 	 

	 	 







2 











 





PLEDGE AGREEMENT




     THIS PLEDGE AGREEMENT (as amended, modified, extended, renewed, restated or replaced from
time to time, this “Pledge Agreement”) is entered into as of June 18, 2004, among NCI
BUILDING SYSTEMS, INC., a Delaware corporation (the
“Borrower”), each of the Domestic
Subsidiaries of the Borrower from time to time party hereto (individually a “Guarantor”
and collectively the “Guarantors”; the Guarantors, together with the Borrower,
individually a “Pledgor” and collectively the “Pledgors”) and WACHOVIA BANK,
NATIONAL ASSOCIATION, in its capacity as Administrative Agent under the Credit Agreement referred
to below (in such capacity, the “Administrative Agent”) for the several banks and other
financial institutions as may from time to time become parties to such Credit Agreement
(individually a “Lender” and collectively the “Lenders”).



RECITALS




     WHEREAS, the Borrower, the Guarantors, the Lenders and the Administrative Agent are entering
into contemporaneously herewith that certain Credit Agreement dated as of the date hereof (as
amended, modified, extended, renewed, restated or replaced from time to time, the “Credit
Agreement”), pursuant to which the Lenders have agreed to make Loans and to issue and/or
acquire participation interests in Letters of Credit upon the terms and subject to the conditions
set forth therein;



     WHEREAS, it is a condition precedent to the effectiveness of the Credit Agreement and the
obligations of the Lenders to make their respective Loans and to issue and/or acquire
participation interests in Letters of Credit under the Credit Agreement that the Pledgors shall
have executed and delivered this Security Agreement to the Administrative Agent for the ratable
benefit of the Lenders; and



     WHEREAS, the Pledgors constitute one integrated financial enterprise, and the Extensions of
Credit to any Pledgor shall benefit directly and indirectly each Pledgor.



     NOW, THEREFORE, in consideration of these premises and other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto
agree as follows:



     1. Definitions. Unless otherwise defined herein, capitalized terms used herein shall
have the meanings ascribed to such terms in the Credit Agreement, and the following terms that
are defined in the Uniform Commercial Code from time to time in effect in the State of North
Carolina (the “UCC”) are used herein as so defined: Certificated Security, Control,
Entitlement Order, Financial Asset, Investment Company Security, Securities Account, Security
Entitlement, Securities Intermediary and Uncertificated Security. For purposes of this Pledge
Agreement, the term “Lender” shall include any Hedging Agreement Provider.



     2. Pledge and Grant of Security Interest. To secure the prompt payment and
performance in full when due, whether by lapse of time or otherwise, of the Secured Obligations
(as defined in Section 3 hereof), each Pledgor hereby pledges and grants to the Administrative













 




Agent, for the benefit of the Lenders, a continuing security interest in any and all right, title
and interest of such Pledgor in and to the following, whether now owned or existing or owned,
acquired, or arising hereafter (collectively, the “Pledged Collateral”):





     (a) Pledged Capital Stock, (i) 100% (or, if less, the full amount owned by
such Pledgor) of the issued and outstanding Capital Stock owned by such Pledgor of each
Domestic Subsidiary set forth on Schedule 2(a) attached hereto and (ii) 65% (or, if
less, the full amount owned by such Pledgor) of each class of the issued and outstanding
Capital Stock entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2))
(“Voting Equity”) and 100% (or, if less, the full amount owned by such Pledgor) of
each class of the issued and outstanding Capital Stock not entitled to vote (within the
meaning of Treas. Reg. Section 1.956-2(c)(2)) (“Non-Voting Equity”) owned by such
Pledgor of each Foreign Subsidiary set forth on Schedule 2(a) attached hereto
(collectively, together with the Capital Stock and other interests described in clauses (y)
and (z) and in Sections 2(b) and 2(c) below, the “Pledged Capital Stock”),
including, but not limited to, the following:




     (y) subject to the percentage restrictions described above and in Section 2(b)
below, all shares, securities, membership interests or other equity interests
representing a dividend on any of the Pledged Capital Stock, or representing a
distribution or return of capital upon or in respect of the Pledged Capital Stock,
or resulting from a stock split, revision, reclassification or other exchange
therefor, and any subscriptions, warrants, rights or options issued to the holder
of, or otherwise in respect of, the Pledged Capital Stock; and




     (z) subject to the percentage restrictions described above and in Section 2(b)
below and without affecting the obligations of the Pledgors under any provision
prohibiting such action hereunder or under the Credit Agreement, in the event of
any consolidation or merger involving the issuer of any Pledged Capital Stock and
in which such issuer is not the surviving entity, all shares of each class of the
Capital Stock of the successor entity formed by or resulting from such
consolidation or merger.




     (b) Additional Interests, (i) 100% (or, if less, the full amount owned by
such Pledgor) of each class of the issued and outstanding Capital Stock of any Person
which hereafter becomes a Domestic Subsidiary and (ii) 65% (or, if less, the full amount
owned by such Pledgor) of the Voting Equity and 100% (or, if less, the full amount owned
by such Pledgor) of the Non-Voting Equity of any Person which hereafter becomes a Foreign
Subsidiary, including, without limitation, the certificates representing such Capital
Stock.




     (c) Other Equity Interests. Subject to the percentage restrictions described
above, any and all other Capital Stock or other equity interests owned by the Pledgors in
any Domestic Subsidiary or any Foreign Subsidiary (except Building Systems de Mexico, S.A.
de C.V., until such time as any Obligor, individually or in the aggregate owns more than
51% of the Capital Stock of Building Systems de Mexico, S.A. de C.V.).



2









 






     (d) Proceeds. All proceeds and products of the foregoing, however and
whenever acquired and in whatever form.



     Without limiting the generality of the foregoing, it is hereby specifically understood and
agreed that a Pledgor may from time to time hereafter pledge and deliver additional shares of
Capital Stock or other interests to the Administrative Agent as collateral security for the
Secured Obligations. Upon such pledge and delivery to the Administrative Agent, such additional
shares of Capital Stock or other interests shall be deemed to be part of the Pledged Collateral
of such Pledgor and shall be subject to the terms of this Pledge Agreement whether or not
Schedule 2(a)is amended to refer to such additional shares.



     3. Security for Secured Obligations. The security interest created hereby in the
Pledged Collateral of each Pledgor constitutes continuing collateral security for all of the
following, whether now existing or hereafter incurred (the “Secured Obligations”): (a)
all of the Credit Party Obligations (including obligations under Secured Hedging Agreements),
howsoever evidenced, created, incurred or acquired, whether primary, secondary, direct,
contingent, or joint and several and (b) all expenses and charges, legal and otherwise, incurred
by the Administrative Agent, the Lenders and/or the Hedging Agreement Providers in collecting or
enforcing any of the Credit Party Obligations or in realizing on or protecting any security
therefor, including without limitation the security granted hereunder.



     4. Delivery of the Pledged Collateral; Perfection of Security Interest. Each Pledgor
hereby agrees that:




     (a) Delivery of Certificates and Instruments. Each Pledgor shall deliver as
security to the Administrative Agent (subject to the limitations set forth in Section 2
above) (i) simultaneously with or prior to the execution and delivery of this Pledge
Agreement, all certificates representing the Pledged Capital Stock owned by such Pledgor
and (ii) promptly upon the receipt thereof by or on behalf of a Pledgor, all other
certificates and instruments constituting Pledged Collateral owned by a Pledgor. Prior to
delivery to the Administrative Agent, all such certificates and instruments constituting
Pledged Collateral of a Pledgor shall be held in trust by such Pledgor for the benefit of
the Administrative Agent pursuant hereto. All such certificates shall be delivered in
suitable form for transfer by delivery or shall be accompanied by duly executed
instruments of transfer or assignment in blank, substantially in the form provided in
Exhibit 4(a) attached hereto.




     (b) Additional Securities. Subject to the percentage restrictions set forth in
Section 2, if such Pledgor shall receive by virtue of its being or having been the owner of
any Pledged Collateral, any (i) certificate, including without limitation, any certificate
representing a dividend or distribution in connection with any increase or reduction of
capital, reclassification, merger, consolidation, sale of assets, combination of shares of
Capital Stock, stock splits, spin-off or split-off, promissory notes or other instruments;
(ii) option or right, whether as an addition to, substitution for, or an exchange for, any
Pledged Collateral or otherwise; (iii) dividends payable in Capital Stock;
or




3









 









(iv) distributions of Capital Stock or other equity interests in connection with a partial or
total liquidation, dissolution or reduction of capital, capital surplus or paid-in surplus, then
such Pledgor shall receive such certificate, instrument, option, right or distribution in trust
for the benefit of the Administrative Agent, shall segregate it from such Pledgor’s other
property and shall deliver it forthwith to the Administrative Agent in the exact form received
accompanied by duly executed instruments of transfer or assignment in blank, substantially in the
form provided in Exhibit 4(a) attached hereto, to be held by the Adrninistrative Agent as
Pledged Collateral and as further collateral security for the Secured Obligations.




     (c) Financing Statements. Each Pledgor hereby authorizes the Adrninistrative Agent to
prepare and file such financing statements (including continuation statements) or amendments
thereof or supplements thereto or other instruments as the Administrative Agent may from time to
time deem reasonably necessary or appropriate in order to perfect and maintain the security
interests granted hereunder in accordance with the UCC, including, without limitation, any
financing statement that describes the Pledged Collateral in a manner as the Administrative Agent
reasonably deems necessary or advisable. Each Pledgor shall also execute and deliver to the
Administrative Agent and/or file such agreements, assignments or instruments (including
affidavits, notices, reaffirmations and amendments and restatements of existing documents, as the
Administrative Agent may reasonably request) and do all such other things as the Administrative
Agent may reasonably deem necessary or appropriate (i) to assure to the Administrative Agent its
security interests hereunder are perfected, including such financing statements (including
continuation statements) or amendments thereof or supplements thereto or other instruments as the
Adrninistrative Agent may from time to time reasonably request in order to perfect and maintain
the security interests granted hereunder in accordance with the UCC and any other personal
property security legislation in the appropriate jurisdictions, (ii) to consummate the
transactions contemplated hereby and (iii) to otherwise protect and assure the Administrative
Agent of its rights and interests hereunder. Each Pledgor agrees to mark its books and records and
to cause the issuer of the Pledged Capital Stock of such Pledgor (or, in the case of any issuer of
Pledged Capital Stock that is not a wholly-owned Subsidiary of the Borrower, use commercially
reasonable efforts to cause such issuer) to mark its books and records to reflect the security
interest of the Administrative Agent in the Pledged Collateral.




     (d) Provisions Relating to Uncertificated Securities, Security Entitlements and
Securities Accounts. The Pledgors shall promptly notify the Administrative Agent of any
Pledged Collateral consisting of an Uncertificated Security or a Security Entitlement or any
Pledged Collateral held in a Securities Account. With respect to any such Pledged Collateral, (a)
the applicable Pledgor and the applicable issuer of the Uncertificated Security or the applicable
Securities Intermediary shall enter into, upon the request of the Administrative Agent, an
agreement with the Administrative Agent granting Control to the Administrative Agent over such
Pledged Collateral, such agreement to be in form and substance reasonably satisfactory to the
Administrative Agent and (b) the Administrative Agent shall be entitled, upon the occurrence and
during the continuance of a Default or an Event of Default, to notify the applicable issuer of the
Uncertificated Security or the



4









 







applicable Securities Intermediary that it should follow the instructions or the
Entitlement Orders, respectively, of the Administrative Agent and no longer follow the
instructions or the Entitlement Orders, respectively, of the applicable Pledgor. Upon
receipt by a Pledgor of notice from a Securities Intermediary of its intent to terminate
the Securities Account of such Pledgor held by such Securities Intermediary, prior to the
termination of such Securities Account the Pledged Collateral in such Securities Account
shall be (i) transferred to a new Securities Account, upon the request of the
Administrative Agent, which shall be subject to a control agreement as provided above or
(ii) transferred to an account held by the Administrative Agent (in which it will be held
until a new Securities Account is established).



     5. Representations and Warranties. Each Pledgor hereby represents and warrants to
the Administrative Agent, for the benefit of the Lenders, that so long as any of the Secured
Obligations (other than contingent indemnity obligations that survive termination of the Credit
Documents pursuant to the stated terms thereof) remain outstanding, any Credit Document or
Secured Hedging Agreement is in effect, and until all of the Commitments shall have been
terminated:




     (a) Authorization of Pledged Capital Stock. The Pledged Capital Stock is duly
authorized and validly issued, is fully paid and nonassessable and is not subject to the
preemptive rights of any Person. All other shares of Capital Stock or other interests
constituting Pledged Collateral are duly authorized and validly issued, fully paid and
nonassessable and not subject to the preemptive rights of any Person.




     (b) Title. Each Pledgor has good and indefeasible title to the Pledged
Collateral of such Pledgor and will at all times be the legal and beneficial owner of such
Pledged Collateral free and clear of any Lien, other than Permitted Liens. There exists no
“adverse claim” within the meaning of Section 8-102 of the UCC with respect to the Pledged
Capital Stock of such Pledgor.




     (c) Exercising of Rights. The exercise by the Administrative Agent of its
rights and remedies hereunder will not violate any law or governmental regulation or any
material contractual restriction binding on or affecting a Pledgor or any of its property,
provided that the Administrative Agent obtains all necessary Governmental Approvals
pursuant to Section 10(c) hereof or required under the laws of the jurisdiction of
organization or formation of any Foreign Subsidiary.




     (d) Pledgor’s Authority. No authorization, approval or action by, and no
notice or filing with any Governmental Authority, the issuer of any Pledged Capital Stock
or third party is required either (i) for the pledge made by a Pledgor or for the granting
of the security interest by a Pledgor pursuant to this Pledge Agreement or (ii) for the
exercise by the Administrative Agent or the Lenders of their rights and remedies hereunder,
provided that the Administrative Agent obtains all necessary Governmental Approvals
pursuant to Section 10(c) hereof or required under the laws of the jurisdiction of
organization or formation of any Foreign Subsidiary.



5









 






     (e) Security Interest/Priority. This Pledge Agreement creates a valid
security interest in favor of the Administrative Agent for the ratable benefit of the
Lenders, in the Pledged Collateral. The taking possession by the Administrative Agent of the
certificates (if any) representing the Pledged Capital Stock and all other certificates and
instruments constituting Pledged Collateral will perfect and establish the first priority of
the Administrative Agent’s security interest in all certificated Pledged Capital Stock and
such certificates and instruments. Upon the filing of UCC financing statements in the
location of each Pledgor’s State of organization, the Administrative Agent shall have a first
priority perfected security interest in all uncertificated Pledged Capital Stock consisting
of partnership or limited liability company interests that do not constitute a Security
pursuant to Section 8-103(c) of the UCC. With respect to any Pledged Collateral consisting of
an Uncertificated Security or a Security Entitlement or any Pledged Collateral held in a
Securities Account, upon execution and delivery by the applicable Pledgor, the Administrative
Agent and the applicable Securities Intermediary or the applicable issuer of the
Uncertificated Security of an agreement granting Control to the Administrative Agent over
such Pledged Collateral, the Administrative Agent shall have
a first priority perfected security interest in such Pledged Collateral. Except as set
forth in this Section, no action is necessary to perfect the Administrative Agent’s
security interest.




     (f) No Other Capital Stock. Except as set forth on Schedule 2(a)
attached hereto (as updated or deemed updated from time to time in accordance with the
terms hereof and of the Credit Agreement), no Pledgor owns any Capital Stock of the
Borrower or any of its Domestic Subsidiaries (other than Immaterial Subsidiaries).




     (g) Partnership and Limited Liability Company Interests. Except as previously
disclosed to the Administrative Agent, none of the Pledged Capital Stock consisting of
partnership or limited liability company interests (i) is dealt in or traded on a
securities exchange or in a securities market, (ii) by its terms expressly provides that
it is a Security governed by Article 8 of the UCC, (iii) is an Investment Company
Security, (iv) is held in a Securities Account or (v) constitutes a Security or a
Financial Asset.



     6. Covenants. Each Pledgor hereby covenants, that so long as any of the Secured
Obligations (other than contingent indemnity obligations that survive termination of the Credit
Documents pursuant to the stated terms thereof) remain outstanding, any Credit Document or
Secured Hedging Agreement is in effect, and until all of the Commitments shall have been
terminated, such Pledgor shall:




     (a) Defense of Title. Warrant and defend title to and ownership of the Pledged
Collateral of such Pledgor at its own expense against the claims and demands of all other
parties claiming an interest therein; keep the Pledged Collateral free from all Liens,
other than Permitted Liens; and not sell, exchange, transfer, assign, lease or otherwise
dispose of Pledged Collateral of such Pledgor or any interest therein, except as permitted
under the Credit Agreement and the other Credit Documents.



6









 






     (b) Further Assurances. Promptly execute and deliver at its expense all
further instruments and documents and take all further action that may be necessary and
desirable or that the Administrative Agent may request in order to (i) perfect and protect
the security interest created hereby in the Pledged Collateral of such Pledgor (including,
without limitation, execution and delivery of one or more control agreements reasonably
acceptable to the Administrative Agent, filing of UCC financing statements and any and all
other actions reasonably necessary to satisfy the Administrative Agent that the
Administrative Agent has obtained a first priority perfected security interest in all
Pledged Collateral); (ii) enable the Administrative Agent to exercise and enforce its
rights and remedies hereunder in respect of the Pledged Collateral of such Pledgor; and
(iii) otherwise effect the purposes of this Pledge Agreement, including, without limitation
and if requested by the Administrative Agent upon the occurrence and continuation of an
Event of Default, delivering to the Administrative Agent irrevocable proxies in respect of
the Pledged Collateral of such Pledgor.




     (c) Amendments. Not make or consent to any amendment or other modification or
waiver with respect to any of the Pledged Collateral of such Pledgor or enter into any
agreement or allow to exist any restriction with respect to any of the Pledged Collateral
of such Pledgor other than pursuant hereto or as may be permitted under the Credit
Agreement.




     (d) Compliance with Securities Laws. File all reports and other information
now or hereafter required to be filed by such Pledgor with the United States Securities and
Exchange Commission and any other state, federal or foreign agency in connection with the
ownership of the Pledged Collateral of such Pledgor.




     (e) Issuance or Acquisition of Capital Stock. Not without executing and
delivering, or causing to be executed and delivered, to the Administrative Agent such
agreements, documents and instruments as the Administrative Agent may reasonably require,
issue or acquire any Capital Stock that consists of an interest in a partnership or a
limited liability company which (i) is dealt in or traded on a securities exchange or in a
securities market, (ii) by its terms expressly provides that it is a Security governed by
Article 8 of the UCC, (iii) is an Investment Company Security, (iv) is held in a Securities
Account or (v) constitutes a Security or a Financial Asset.



     7. Power of Attorney for Perfection of Liens. Each Pledgor hereby irrevocably makes,
constitutes and appoints the Administrative Agent, its nominee or any other person whom the
Administrative Agent may designate, as such Pledgor’s attorney-in-fact with full power and for the
limited purpose to file any financing statements, or amendments and supplements to financing
statements, continuation financing statements, notices or any similar documents which in the
Administrative Agent’s reasonable discretion would be necessary, appropriate or convenient in order
to perfect and maintain perfection of the security interests granted hereunder, such power, being
coupled with an interest, being and remaining irrevocable so long as any of the Secured Obligations
(other than contingent indemnity obligations that survive termination of the Credit Documents
pursuant to the stated terms thereof) remain outstanding, any Credit Document or Secured Hedging
Agreement is in effect, and until all of the Commitments shall



7









 




have been terminated. In the event for any reason the law of any jurisdiction other than North
Carolina becomes or is applicable to the Collateral of any Pledgor or any part thereof, or to any
of the Secured Obligations, such Pledgor agrees to execute and deliver all such instruments and
to do all such other things as the Administrative Agent in its sole discretion reasonably deems
necessary or appropriate to preserve, protect and enforce the security interests of the
Administrative Agent under the law of such other jurisdiction (and, if an Pledgor shall fail to
do so promptly upon the request of the Administrative Agent, then the Administrative Agent may
execute any and all such requested documents on behalf of such Pledgor pursuant to the power of
attorney granted hereinabove).




     8. Performance
of Obligations; Advances by Administrative Agent. On failure of any
Pledgor to perform any of the covenants and agreements contained herein, the Administrative Agent
may, at its sole option and in its sole discretion, perform or cause to be performed the same and
in so doing may expend such sums as the Administrative Agent may reasonably deem advisable in the
performance thereof, including, without limitation, the payment of any insurance premiums, the
payment of any taxes, a payment to obtain a release of a Lien or potential Lien, expenditures made
in defending against any adverse claim and all other expenditures which the Administrative Agent
may make for the protection of the security interest hereof or may be compelled to make by
operation of law. All such sums and amounts so expended shall be repayable by the Pledgors on a
joint and several basis promptly upon timely notice thereof and demand therefor, shall constitute
additional Secured Obligations and shall bear interest from the date said amounts are expended at
the ABR Default Rate. No such performance of any covenant or agreement by the Administrative Agent
on behalf of any Pledgor, and no such advance or expenditure therefor, shall relieve the Pledgors
of any default under the terms of this Pledge Agreement, the other Credit Documents or any Secured
Hedging Agreement. The Administrative Agent may make any payment hereby authorized in accordance
with any bill, statement or estimate procured from the appropriate public office or holder of the
claim to be discharged without inquiry into the accuracy of such bill, statement or estimate or
into the validity of any tax assessment, sale, forfeiture, tax lien, title or claim except to the
extent such payment is being contested in good faith by a Pledgor in appropriate proceedings and
against which adequate reserves are being maintained in accordance with GAAP.



     9. Events of Default. The occurrence of an event which under the Credit Agreement
would constitute an Event of Default shall be an event of default hereunder (an “Event of
Default”).



     10. Remedies.




     (a) General Remedies. Upon the occurrence of an Event of Default and during
the continuation thereof, the Administrative Agent shall have, in respect of the Pledged
Collateral of any Pledgor, in addition to the rights and remedies provided herein, in the
other Credit Documents, in any Secured Hedging Agreement or by law, the rights and
remedies of a secured party under the UCC or any other applicable law.




     (b) Sale of Pledged Collateral. Upon the occurrence of an Event of Default and
during the continuation thereof, without limiting the generality of this Section and,
except as otherwise required by applicable law, without notice, the Administrative Agent



8









 







may, in its sole discretion, sell or otherwise dispose of or realize upon the Pledged Collateral,
or any part thereof, in one or more parcels, at public or private sale, at any exchange or
broker’s board or elsewhere, at such price or prices and on such other terms as the
Administrative Agent may deem commercially reasonable, for cash, credit or for future delivery or
otherwise in accordance with applicable law. To the extent permitted by applicable law, any
Lender may in such event, bid for the purchase of such securities. Each Pledgor agrees that, to
the extent notice of sale shall be required by law, any requirement of reasonable notice shall be
met if notice, specifying the place of any public sale or the time after which any private sale
is to be made, is personally served on or mailed, postage prepaid, to such Pledgor, in accordance
with the notice provisions of Section 9.2 of the Credit Agreement at least ten (10) days before
the time of such sale. The Administrative Agent shall not be obligated to make any sale of
Pledged Collateral of such Pledgor regardless of notice of sale having been given. The
Administrative Agent may adjourn any public or private sale from time to time by announcement at
the time and place fixed therefor, and such sale may, without further notice, be made at the time
and place to which it was so adjourned.




     (c) Registration Rights. If the Administrative Agent shall determine to exercise its
right to sell all or any of the Pledged Collateral, each Pledgor agrees that, upon request of the
Administrative Agent after the occurrence and during the continuance of an Event of Default
(which request may be made by the Administrative Agent in its sole discretion), such Pledgor
will, at its own expense, to the fullest extent it has the capability to do so:




     (i) execute and deliver, and use its commercially reasonable efforts to cause each
issuer of the Pledged Collateral contemplated to be sold and the directors and officers
thereof to execute and deliver, all such instruments and documents, and do or cause to be
done all such other acts and things, as may be necessary or, in the opinion of the
Administrative Agent, advisable to file a registration statement covering such Pledged
Collateral under the provisions of the Securities Act of 1933 and to use its commercially
reasonable efforts to cause the registration statement relating thereto to become
effective and to remain effective for such period as prospectuses are required by law to
be furnished, and to make all amendments and supplements thereto and to the related
prospectus which, in the opinion of the Administrative Agent, are necessary or advisable,
all in conformity with the requirements of the Securities Act of 1933 and the rules and
regulations of the Securities and Exchange Commission applicable thereto;




     (ii) use its commercially reasonable efforts to qualify the Pledged Collateral under
all applicable state securities or “Blue Sky” laws and to obtain all necessary
governmental approvals for the sale of the Pledged Collateral, as requested by the
Administrative Agent;




     (iii) cause each issuer (or, in the case of any issuer that is not a wholly-owned
Subsidiary of the Borrower, use commercially reasonable efforts to cause such issuer) to
make available to its security holders, as soon as practicable, an



9









 








earnings statement which will satisfy the provisions of Section 11(a) of the Securities
Act of 1933;




     (iv) to use commercially reasonable efforts to do or cause to be done all such other
acts and things as may be necessary to make such sale of the Pledged Collateral or any
part thereof valid and binding and in compliance with applicable law; and




     (v) bear all reasonable costs and expenses, including reasonable attorneys’ fees, of
carrying out its obligations under this Section 9.




Each Pledgor further agrees that a breach of any of the covenants contained in this Section 9(c)
will cause irreparable injury to the Administrative Agent, that Administrative Agent has no
adequate remedy at law in respect of such breach and, as a consequence, that each and every
covenant contained in this Section 9(c) shall be specifically enforceable against such Pledgor,
and 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 default has occurred giving
rise to the Secured Obligations becoming due and payable prior to their stated maturities.
Nothing in this Section 9(c) shall in any way alter the other rights of the Administrative Agent
under this Pledge Agreement.




In the event of any public sale described in this Section 9(c), each Pledgor agrees to indemnify
and hold harmless the Administrative Agent and the Lenders and each of their respective directors,
officers, employees and agents from and against any loss, fee, cost, expense, damage, liability or
claim, joint or several, to which any such persons may become subject or for which any of them may
be liable, under the Securities Act of 1933 or otherwise, insofar as such losses, fees, costs,
expenses, damages, liabilities or claims (or any litigation commenced or threatened in respect
thereof) arise out of or are based upon an untrue statement or alleged untrue statement of a
material fact contained in any preliminary prospectus, registration statement, prospectus or other
such document published or filed in connection with such public sale, or any amendment or
supplement thereto, or arise out of or are based upon the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the statements therein
not misleading, except insofar as such losses, claims, damages, judgments, liabilities or expenses
arise out of, or are based upon, any such untrue statement or omission or alleged untrue statement
or omission based upon and in conformity with information with respect to any Lender furnished in
writing by any Lender or the Administrative Agent to any Pledgor expressly for use therein with
reference to such Lender, and will reimburse Administrative Agent and such other persons for any
legal or other expenses reasonably incurred by the Administrative Agent and such other persons in
connection with any litigation, of any nature whatsoever, commenced or threatened in respect
thereof (including all fees, costs and expenses whatsoever reasonably incurred by the
Administrative Agent and such other persons and counsel for the Administrative Agent and such other
persons in investigating, preparing for, defending against or providing evidence, producing
documents or taking any other action in respect of, any such



10









 






commenced or threatened litigation or any claims asserted). This indemnity shall be in addition
to any liability which any Pledgor may otherwise have and shall extend upon the same terms and
conditions to each person, if any, that controls the Administrative Agent or such persons within
the meaning of the Securities Act of 1933.




     (d) Private Sale. Upon the occurrence of an Event of Default and during the
continuation thereof, the Pledgors recognize that the Administrative Agent may deem it
impracticable to effect a public sale of all or any part of the Pledged Collateral and that the
Administrative Agent may, therefore, determine to make one or more private sales of any such
Pledged Collateral to a restricted group of purchasers who will be obligated to agree, among other
things, to acquire such Pledged Collateral for their own account, for investment and not with a
view to the distribution or resale thereof. Each Pledgor acknowledges that any such private sale
may be at prices and on terms less favorable to the seller than the prices and other terms which
might have been obtained at a public sale and, notwithstanding the foregoing, agrees that such
private sale shall be deemed to have been made in a commercially reasonable manner and that the
Administrative Agent shall have no obligation to delay sale of any such Pledged Collateral for the
period of time necessary to permit the issuer of such Pledged Collateral to register such Pledged
Collateral for public sale under the Securities Act of 1933. Each Pledgor further acknowledges and
agrees that any offer to sell such Pledged Collateral which has been (i) publicly advertised on a
bona fide basis in a newspaper or other publication of general circulation in the financial
community of New York, New York (to the extent that such offer may be advertised without prior
registration under the Securities Act of 1933), or (ii) made privately in the manner described
above shall be deemed to involve a “public sale” under the UCC, notwithstanding that such sale may
not constitute a “public offering” under the Securities Act of 1933, and the Administrative Agent
may, in such event, bid for the purchase of such Pledged Collateral.




     (e) Retention of Pledged Collateral. In addition to the rights and remedies
hereunder, upon the occurrence of an Event of Default and during the continuation thereof, the
Administrative Agent may, after providing the notices required by Sections 9-620 and 9-621 of the
UCC (or any successor sections of the UCC) or otherwise complying with the notice requirements of
applicable law of the relevant jurisdiction, accept or retain all or any portion of the Pledged
Collateral in satisfaction of the Secured Obligations. Unless and until the Administrative Agent
shall have provided such notices, however, the Administrative Agent shall not be deemed to have
retained any Pledged Collateral in satisfaction of any Secured Obligations for any reason.




     (f) Deficiency. In the event that the proceeds of any sale, collection or realization
are insufficient to pay all amounts to which the Administrative Agent or the Lenders are legally
entitled, the Pledgors shall be jointly and severally liable for the deficiency, together with
interest thereon at the ABR Default Rate, together with the costs of collection and the reasonable
fees of any attorneys employed by the Administrative Agent to collect such deficiency. Any surplus
remaining after the full payment and satisfaction of the Secured Obligations shall be returned to
the Pledgors or to whomsoever a court of competent jurisdiction shall determine to be entitled
thereto.



11









 






     (g) Other Security. To the extent that any of the Secured Obligations are now
or hereafter secured by property other than the Pledged Collateral (including, without
limitation, real and other personal property owned by a Pledgor), or by a guarantee, endorsement
or property of any other Person, then the Administrative Agent shall have the right to proceed
against such other property, guarantee or endorsement upon the occurrence and during the
continuation of any Event of Default, and the Administrative Agent shall have the right, in its
sole discretion, to determine which rights, security, Liens, security interests or remedies the
Administrative Agent shall at any time pursue, relinquish, subordinate, modify or take with
respect thereto, without in any way modifying or affecting any of them or any of the
Administrative Agent’s rights or the Secured Obligations under this Pledge Agreement, under any
other of the Credit Documents or under any Secured Hedging Agreement.



     11. Rights of the Administrative Agent.




     (a) Power of Attorney. In addition to other powers of attorney contained herein, each
Pledgor hereby designates and appoints the Administrative Agent, on behalf of the Lenders, and
each of its designees or agents as attomey-in-fact of such Pledgor, irrevocably and with power of
substitution, with authority to take any or all of the following actions upon the occurrence and
during the continuation of an Event of Default:




     (i) to demand, collect, settle, compromise, adjust and give discharges and releases
concerning the Pledged Collateral of such Pledgor, all as the Administrative Agent may
reasonably determine in respect of such Pledged Collateral;




     (ii) to commence and prosecute any actions at any court for the purposes of
collecting any of the Pledged Collateral and enforcing any other right in respect
thereof;




     (iii) to defend, settle, adjust or compromise any action, suit or proceeding brought
with respect to the Pledged Collateral and, in connection therewith, give such discharge
or release as the Administrative Agent may deem reasonably appropriate;




     (iv) to pay or discharge taxes, Liens, security interests, or other encumbrances
levied or placed on or threatened against the Pledged Collateral;




     (v) to direct any parties liable for any payment under any of the Pledged Collateral
to make payment of any and all monies due and to become due thereunder directly to the
Administrative Agent or as the Administrative Agent shall direct;



12









 






     (vi) to receive payment of and receipt for any and all monies, claims, and other
amounts due and to become due at any time in respect of or arising out of any Pledged
Collateral of such Pledgor;




     (vii) to sign and endorse any drafts, assignments, proxies, stock powers,
verifications, notices and other documents relating to the Pledged Collateral of such
Pledgor;




     (viii) to execute and deliver and/or file all financing statements, continuation
statements, pledge agreements, affidavits, notices and other agreements, instruments and
documents that the Administrative Agent may determine necessary in order to perfect and
maintain the security interests and Liens granted in this Pledge Agreement and in order to
permit the Administrative Agent or any Lender to exercise its rights or remedies
hereunder;




     (ix) to exchange any of the Pledged Collateral of such Pledgor or other property upon
any merger, consolidation, reorganization, recapitalization or other readjustment of the
issuer thereof and, in connection therewith, deposit any of the Pledged Collateral of such
Pledgor with any committee, depository, transfer agent, registrar or other designated
agency upon such terms as the Administrative Agent may determine;




     (x) to vote for a shareholder, partner or member resolution, or to sign an instrument
in writing, sanctioning the transfer of any or all of the Pledged Collateral of such
Pledgor into the name of the Administrative Agent or into the name of any transferee to
whom the Pledged Collateral of such Pledgor or any part thereof may be sold pursuant to
Section 9 hereof; and




     (xi) to do and perform all such other acts and things as the Administrative Agent may
reasonably deem to be necessary, proper or convenient in connection with the exercise of
its rights and remedies with respect to the Pledged Collateral of such Pledgor.




This power of attorney is a power coupled with an interest and shall be irrevocable for so long as
any of the Secured Obligations (other than contingent indemnity obligations that survive
termination of the Credit Documents pursuant to the stated terms thereof) remain outstanding, any
Credit Document or Secured Hedging Agreement is in effect, and until all of the Commitments shall
have been terminated. The Administrative Agent shall be under no duty to exercise or withhold the
exercise of any of the rights, powers, privileges and options expressly or implicitly granted to
the Administrative Agent in this Pledge Agreement, and shall not be liable for any failure to do so
or any delay in doing so. The Administrative Agent shall not be liable for any act or omission or
for any error of judgment or any mistake of fact or law in its individual capacity or its capacity
as attomey-in-fact except acts or omissions resulting from its gross negligence or willful
misconduct. This power of attorney is conferred on the Administrative Agent solely to protect,
preserve and realize upon its security interest in the Pledged Collateral.



13









 






     (b) Assignment by the Administrative Agent. The Administrative Agent may from time
to time assign the Secured Obligations or any portion thereof and/or the Pledged Collateral or
any portion thereof to a successor Administrative Agent, and the assignee shall be entitled to
all of the rights and remedies of the Administrative Agent under this Pledge Agreement in
relation thereto.




     (c)
The Administrative Agent’s Duty of Care. Other than the exercise of reasonable
care to assure the safe custody of the Pledged Collateral while being held by the Administrative
Agent hereunder, the Administrative Agent shall have no duty or liability to preserve rights
pertaining thereto, it being understood and agreed that Pledgors shall be responsible for
preservation of all rights in the Pledged Collateral of such Pledgor, and the Administrative Agent
shall be relieved of all responsibility for Pledged Collateral upon surrendering it or tendering
the surrender of it to the Pledgors. The Administrative Agent shall be deemed to have exercised
reasonable care in the custody and preservation of the Pledged Collateral in its possession if
such Pledged Collateral is accorded treatment substantially equal to that which the Administrative
Agent accords its own property, which shall be no less than the treatment employed by a reasonable
and prudent agent in the industry, it being understood that the Administrative Agent shall not
have responsibility for (i) ascertaining or taking action with respect to calls, conversions,
exchanges, maturities, tenders or other matters relating to any Pledged Collateral, whether or not
the Administrative Agent has or is deemed to have knowledge of such matters; or (ii) taking any
necessary steps to preserve rights against any parties with respect to any Pledged Collateral.




     (d) Voting Rights in Respect of the Pledged Collateral.




     (i) So long as no Event of Default shall have occurred and be continuing, to the
extent permitted by law, each Pledgor may exercise any and all voting and other
consensual rights pertaining to the Pledged Collateral of such Pledgor or any part
thereof for any purpose not inconsistent with the terms of this Pledge Agreement or the
Credit Agreement; provided, however, that Pledgor shall not exercise or
shall refrain from exercising any such right if the Administrative Agent shall have
notified the Pledgor that, in the Administrative Agent’s judgment, such action would have
a material adverse effect on the value of the Pledged Collateral or any part thereof.




     (ii) Subject to subsection (e) of this Section, upon the occurrence and during the
continuance of a Default or an Event of Default, all rights of a Pledgor to exercise the
voting and other consensual rights which it would otherwise be entitled to exercise
pursuant to paragraph (i) of this subsection (d) shall cease and all such rights shall
thereupon become vested in the Administrative Agent which shall then have the sole right
to exercise such voting and other consensual rights.




     (e) Dividend and Distribution Rights in Respect of the Pledged Collateral.



14









 






     (i) So long as no Event of Default shall have occurred and be continuing, each
Pledgor shall be entitled to receive and retain any and all dividends (other than
dividends payable in the form of Capital Stock and other dividends constituting
Pledged Collateral which are required to be delivered to the Administrative Agent
pursuant to Section 4 above), distributions or interest paid in respect of the
Pledged Collateral to the extent they are allowed under the Credit Agreement.




     (ii) Upon the occurrence and during the continuation of an Event of
Default:




     (A) all rights of a Pledgor to receive the dividends, distributions
and interest payments which it would otherwise be authorized to receive and
retain pursuant to paragraph (i) of this subsection (e) shall cease and all
such rights shall thereupon be vested in the Administrative Agent which
shall then have the sole right to receive and hold as Pledged Collateral
such dividends, distributions and interest payments; and




     (B) all dividends, distributions and interest payments which are
received by a Pledgor contrary to the provisions of clause (A) of this
subsection (ii) shall be received in trust for the benefit of the
Administrative Agent, shall be segregated from other property or funds of
such Pledgor, and shall be forthwith paid over to the Administrative Agent
as Pledged Collateral in the exact form received, to be held by the
Administrative Agent as Pledged Collateral and as further collateral
security for the Secured Obligations.




     (f) Release of Pledged Collateral. The Administrative Agent may release any of
the Pledged Collateral from this Pledge Agreement or may substitute any of the Pledged
Collateral for other Pledged Collateral without altering, varying or diminishing in any way
the force, effect, Lien, pledge or security interest of this Pledge Agreement as to any
Pledged Collateral not expressly released or substituted, and this Pledge Agreement shall
continue as a first priority Lien on all Pledged Collateral not expressly released or
substituted.



     12. Application of Proceeds. After the exercise of remedies by the Administrative
Agent or the Lenders pursuant to Section 7.2 of the Credit Agreement (or after the Commitments
shall automatically terminate and the Loans (with accrued interest thereon) and all other amounts
under the Credit Documents shall automatically become due and payable in accordance with the terms
of such Section), any proceeds of the Pledged Collateral, when received by the Administrative
Agent, any of the Lenders or any Hedging Agreement Provider in cash or its equivalent, will be
applied in reduction of the Secured Obligations in the order set forth in Section 2.12(b) of the
Credit Agreement, and each Pledgor irrevocably waives the right to direct the application of such
payments and proceeds and acknowledges and agrees that the Administrative Agent shall have the
continuing and exclusive right to apply and reapply any and







15









 







all such proceeds in the Administrative Agent’s sole discretion, notwithstanding any entry to the
contrary upon any of its books and records.




     13. Costs of Counsel. If at any time hereafter, whether upon the occurrence of an
Event of Default or not, the Administrative Agent employs counsel to prepare or consider
amendments, waivers or consents with respect to this Pledge Agreement, or to take action or make a
response in or with respect to any legal or arbitral proceeding relating to this Pledge Agreement
or relating to the Pledged Collateral, or to protect the Pledged Collateral or exercise any rights
or remedies under this Pledge Agreement or with respect to the Pledged Collateral, then the
Pledgors agree to promptly pay upon demand any and all such reasonable documented costs and
expenses of the Administrative Agent or the Lenders, all of which costs and expenses shall
constitute Secured Obligations hereunder.



     14. Continuing Agreement.




     (a) This Pledge Agreement shall be a continuing agreement in every respect and shall
remain in full force and effect so long as any of the Secured Obligations (other than
contingent indemnity obligations that survive termination of the Credit Documents pursuant
to the stated terms thereof) remain outstanding, any Credit Document or Secured Hedging
Agreement is in effect, and until all of the Commitments shall have been terminated. Upon
such payment and termination, this Pledge Agreement shall be automatically terminated and
the Administrative Agent and the Lenders shall, upon the request and at the expense of the
Pledgors, forthwith release all of the Liens and security interests granted hereunder and
shall deliver all UCC termination statements and/or other documents reasonably requested by
the Pledgors evidencing such termination. Notwithstanding the foregoing, all releases and
indemnities provided hereunder shall survive termination of this Pledge Agreement.




     (b) This Pledge Agreement shall continue to be effective or be automatically
reinstated, as the case may be, if at any time payment, in whole or in part, of any of the
Secured Obligations is rescinded or must otherwise be restored or returned by the
Administrative Agent or any Lender as a preference, fraudulent conveyance or otherwise
under any bankruptcy, insolvency or similar law, all as though such payment had not been
made; provided that in the event payment of all or any part of the Secured
Obligations is rescinded or must be restored or returned, all reasonable costs and expenses
(including without limitation any reasonable legal fees and disbursements) incurred by the
Administrative Agent or any Lender in defending and enforcing such reinstatement shall be
deemed to be included as a part of the Secured Obligations.



     15. Amendments; Waivers; Modifications. This Pledge Agreement and the provisions
hereof may not be amended, waived, modified, changed, discharged or terminated except as set
forth in Section 9.1 of the Credit Agreement.



     16. Successors in Interest. This Pledge Agreement shall create a continuing security
interest in the Pledged Collateral and shall be binding upon each Pledgor, its successors and
assigns and shall inure, together with the rights and remedies of the Administrative Agent




16









 







hereunder, to the benefit of the Administrative Agent and the Lenders and their successors and
permitted assigns; provided, however, that, other than in connection with a transaction
permitted under Section 6.5(a)(v) of the Credit Agreement, none of the Pledgors may assign its
rights or delegate its duties hereunder without the prior written consent of each Lender or the
Required Lenders, as required by the Credit Agreement. To the fullest extent permitted by law,
each Pledgor hereby releases the Administrative Agent and each Lender, each of their respective
officers, employees and agents and each of their respective successors and assigns, from any
liability for any act or omission relating to this Pledge Agreement or the Pledged Collateral,
except for any liability arising from the gross negligence or willful misconduct of the
Administrative Agent or such Lender or their respective officers, employees and agents, in each
case as determined by a court of competent jurisdiction.




     17. Notices. All notices required or permitted to be given under this Pledge
Agreement shall be in conformance with Section 9.2 of the Credit Agreement.



     18. Counterparts. This Pledge Agreement may be executed in any number of
counterparts, each of which where so executed and delivered shall be an original, but all of which
shall constitute one and the same instrument. A counterpart hereof (or signature page thereto)
signed and transmitted by any Person party hereto to the Administrative Agent (or its counsel) by
facsimile machine, telecopier or electronic mail is to be treated as an original. The signature of
such Person thereon, for purposes hereof, is to be considered as an original signature, and the
counterpart (or signature page thereto) so transmitted is to be considered to have the same
binding effect as an original signature on an original document. It shall not be necessary in
making proof of this Pledge Agreement to produce or account for more than one such counterpart.



     19. Headings. The headings of the sections and subsections hereof are provided for
convenience only and shall not in any way affect the meaning, construction or interpretation of
any provision of this Pledge Agreement.



     20. Governing
Law; Submission to Jurisdiction and Service of Process; Arbitration;
Waiver of Jury Trial; Venue. THIS PLEDGE AGREEMENT 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 NORTH CAROLINA WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAWS THAT WOULD CALL
FOR THE APPLICATION OF THE LAWS OF ANY OTHER JURISDICTION. The terms of Sections 9.13, 9.14 and
9.17 of the Credit Agreement are incorporated herein by reference, mutatis mutandis, and the
parties hereto agree to such terms.



     21. Severability. If any provision of this Pledge Agreement 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.



17









 





     22. Entirety. This Pledge Agreement, the other Credit Documents and any Secured
Hedging Agreement represent the entire agreement of the parties hereto and thereto, and supersede
all prior agreements and understandings, oral or written, if any, including any commitment
letters or correspondence relating to this Pledge Agreement, the other Credit Documents, any such
Secured Hedging Agreement or the transactions contemplated herein and therein.



     23. Survival. All representations and warranties of the Pledgors hereunder shall
survive the execution and delivery of this Pledge Agreement, the other Credit Documents and any
Secured Hedging Agreement, the delivery of the Notes and the making of the Loans and the issuance
of the Letters of Credit under the Credit Agreement.



     24. Joint and Several Obligations of Pledgors.




     (a) Each of the Pledgors is accepting joint and several liability hereunder in
consideration of the financial accommodations to be provided by the Lenders under the
Credit Agreement, for the mutual benefit, directly and indirectly, of each of the
Pledgors and in consideration of the undertakings of each of the Pledgors to accept joint
and several liability for the obligations of each of them.




     (b) Each of the Pledgors, jointly and severally hereby irrevocably and
unconditionally accepts, not merely as a surety but also as a co-debtor, joint and several
liability with the other Pledgors with respect to the payment and performance of all of
the Secured Obligations arising under this Pledge Agreement, the other Credit Documents
and any Secured Hedging Agreement, it being the intention of the parties hereto that all
the Secured Obligations shall be the joint and several obligations of each of the Pledgors
without preferences or distinction among them.




     (c) Notwithstanding any provision to the contrary contained herein, in any other of
the Credit Documents or in any Secured Hedging Agreement, to the extent the obligations of
a Pledgor shall be adjudicated to be invalid or unenforceable for any reason (including,
without limitation, because of any applicable state or federal law relating to fraudulent
conveyances or transfers) then the obligations of such Pledgor hereunder shall be limited
to the maximum amount that is permissible under applicable law (whether federal or state
and including, without limitation, the Bankruptcy Code).



     25. Rights of Required Lenders. All rights of the Administrative Agent
hereunder, if not exercised by the Administrative Agent, may be exercised by the Required Lenders.



18









 





     Each of the parties hereto has caused a counterpart of this Pledge Agreement to be duly
executed and delivered as of the date first above written.



	 	 	 	 	 	 	 
	BORROWER:	 	NCI BUILDING SYSTEMS, INC.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Robert J. Medlock	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:
	 	Robert J. Medlock	 	 
	 

	 	Title:
	 	Executive Vice President and	 	 
	 

	 	 	 	Chief Financial Officer	 	 
	 
	 	 	 	 	 	 
	GUARANTORS:	 	NCI HOLDING CORP.	 	 
	 	 	NCI OPERATING CORP.	 	 
	 	 	METAL COATERS OF CALIFORNIA, INC.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Robert J. Medlock	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:
	 	Robert J. Medlock	 	 
	 

	 	Title:
	 	Executive Vice President and	 	 
	 

	 	 	 	Chief Financial Officer	 	 
	 
	 	 	 	 	 	 
	 	 	A & S BUILDING SYSTEMS, L.P.	 	 
	 	 	NCI BUILDING SYSTEMS, L.P,	 	 
	 	 	METAL BUILDING COMPONENTS, L.P.	 	 
	 	 	NCI GROUP, L.P.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	NCI OPERATING CORP.,	 	 
	 

	 	 	 	as General Partner	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Robert J. Medlock	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:
	 	Robert J. Medlock	 	 
	 

	 	Title:
	 	Executive Vice President and	 	 
	 

	 	 	 	Chief Financial Officer	 	 







NCI Building Systems, Inc.

Pledge Agreement


 









 








     Accepted and agreed to as of the date first above written.



	 	 	 	 	 	 	 
	 	 	WACHOVIA BANK, NATIONAL ASSOCIATION, 

as Administrative Agent	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Glenn F. Edwards	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:
	 	Glenn F. Edwards	 	 
	 

	 	Title:
	 	Managing Director	 	 








NCI Building Systems, Inc.

Pledge Agreement



 









 








Schedule 2(a)

to

Pledge Agreement

dated as of June 18, 2004

in favor of Wachovia Bank, National Association,

as Administrative Agent




PLEDGED CAPITAL STOCK



Pledgor: NCI BUILDING SYSTEMS, INC.




	 	 	 	 	 	 	 	 	 	 	 	 	 
	Name of Subsidiary:	 	Number of Shares	 	Certificate Number	 	Percentage Ownership
	NCI Operating Corp.
	 	 	1,000	 	 	 	002	 	 	 	100	 
	NCI Holding Corp.
	 	 	1,000	 	 	 	002	 	 	 	100	 
	 
	Pledgor: NCI HOLDING CORP.
	 
	Name of Subsidiary:	 	Number of Shares	 	Certificate Number	 	Percentage Ownership
	Metal Coaters of California, Inc.
	 	 	10,000	 	 	 	4	 	 	 	100	 






PLEDGED PARTNERSHIP INTERESTS




Pledgor: NCI OPERATING CORP.




	 	 	 	 	 	 	 	 	 
	Name of Subsidiary:	 	Description of Interest	 	Percentage Ownership
	A & S Building Systems, L.P.
	 	1% general partnership interest	 	 	1	 
	NCI Building Systems, L.P.
	 	1% general partnership interest	 	 	1	 
	Metal Building Components, L.P.
	 	1% general partnership interest	 	 	1	 
	NCI Group, L.P.
	 	1% general partnership interest	 	 	1	 
	 
	Pledgor: NCI HOLDING CORP.
	 
	Name of Subsidiary:	 	Description of Interest	 	Percentage Ownership
	A & S Building Systems, L.P.
	 	99% limited partnership interest	 	 	99	 
	NCI Building Systems, L.P.
	 	99% limited partnership interest	 	 	99	 
	Metal Building Components, L.P.
	 	99% limited partnership interest	 	 	99	 
	NCI Group, L.P.
	 	99% limited partnership interest	 	 	99	 










 









 








Exhibit 4(a)

to

Pledge Agreement

dated as of June 18, 2004

in favor of Wachovia Bank, National Association,

as Administrative Agent



Irrevocable Stock Power


     FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers to


the following shares of capital stock of                                         , a                      corporation:



	 	 	 	 	 
	 	No. of Shares
	 	Certificate No.	 
	 	 
	 	 	 




and irrevocably appoints                                          its agent and attorney-in-fact to transfer all or any part of such capital stock or equity interest and to take all necessary and
appropriate action to effect any such transfer. The agent and attorney-in-fact may substitute and
appoint one or more persons to act for him.



	 	 	 	 	 	 	 
	 	 	                       ,	 	 
	 	 	a
                     [corporation]	 	 
	 
	 	 	 	 	 	 
	 
	 	By:	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	Name:	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	Title:	 	 	 	 
	 
	 	 	 	 	 	 






 










 









	Organized under the laws of the state of Delaware Authorized Shares 1,000-par value $1.00
Per Share This certifies NCI BUILDING SYSTEMS, INC. REGISTERED holder of ONE THOUSAND (1,000)





 









 









	CORPORATION PACKAGE COMPANY P.O. Box 10642, Dallas, Texas 75107Notice




The shares represented by this certificate have not been registered pursuant to the federal
securities act of 1933, as amended, or any state securities law. Neither this security nor any
portion hereof or interest herein may be sold, assigned, transferred or otherwise disposed of
unless the same is registered under said act and any applicable state securities law, or unless an
exemption from such registration is available.




 









 









	Organized under the laws of the state of Delaware Authorized Shares 1,000-par value $1.00 Per Share
This certifies NCI BUILDING SYSTEMS, INC. REGISTERED holder of ONE THOUSAND (1,000)





 









 









	CORPORATION PACKAGE COMPANY P.O. Box 10642, Dallas, Texas 75107
Notice




The shares represented by this certificate have not been registered pursuant to the federal
securities act of 1933, as amended, or any state securities law. Neither this security nor any
portion hereof or interest herein may be sold, assigned, transferred or otherwise disposed of
unless the same is registered under said act and any applicable state securities law, or unless an
exemption from such registration is available.




 









 









	Organized under the laws of the state of Delaware Authorized Shares 1,000-par value $1.00 Per Share
This certifies NCI BUILDING SYSTEMS, INC. REGISTERED holder of ONE THOUSAND (1,000)





 









 









	The following abbreviations, when used In the inscription on the toce of
this certificate, shall bo construed as though ffiey were written out In full according
id applicatile laws or regulations:
TENCOM ~ as tenants In common UNIF GIFT MIN ACT —  CirsoxJ/an
(CtKt) (Minor)
TEN ENT — as tenants by the entireties under Uniform Gifts to Minors
Act
JT JEN • as joint tenants vt’nh right of (State)
survivorship and not as tenants in common Aditional
abbreviations may also be used though not in the above
list




The shares represented by this certificate have not been registered pursuant to the
federal securities act of 1933, as amended, or any state securities law. Neither this security
nor any portion hereof or interest herein may be sold, assigned, transferred or otherwise
disposed of unless the same is registered under said act and any applicable state securities
law, or unless an exemption from such registration is available.



No shareholder has any preemptive right to acquire any unissued or treasury securities of the
Company. A complete statement of the denial of preemptive rights is set forth in Article Six of
the Company’s Articles of Incorporation on file in the Office of the Secretary of State of the
State of Texas. The Company will furnish a copy of Article Six to the record holder of this
Certificate, without charge, on written request to the Company at its principal place of
business or registered office.




 









 





Irrevocable Stock Power




     FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers to
the following shares of capital stock of NCI Holding Corp., a Delaware corporation:



	 	 	 	 	 
	 	No. of Shares	 	Certificate No.	 
	 
	 	1,000

	 	002 	 





and
irrevocably appoints                                          its agent and attorney-in-fact to transfer all or any part of such
capital stock or equity interest and to take all necessary and  appropriate action to effect any
such transfer. The agent and attorney-in-fact may substitute and appoint one or more persons to act
for him.




	 	 	 	 	 
	 	NCI BUILDING SYSTEMS, INC.,

a Delaware corporation

 	 
	 	By:  	/s/ Robert J. Medlock
 	 
	 	 	Robert J. Medlock, Executive Vice 	 
	 	 	President and Chief Financial Officer 	 
	 




 









 





Irrevocable Stock Power




     FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers to
the following shares of capital stock of NCI Operating Corp., a Nevada corporation:



	 	 	 	 	 
	 	No. of Shares	 	Certificate No.	 
	 
	 	1,000

	 	002 	 





and irrevocably appoints                                          its agent and attorney-in-fact to transfer all or any part of
such capital stock or equity interest and to take all necessary and appropriate action to effect
any such transfer. The agent and attorney-in-fact may substitute and appoint one or more persons to
act for him.




	 	 	 	 	 
	 	NCI BUILDING SYSTEMS, INC., 
a
Delaware corporation

 	 
	 	By:  	/s/ Robert J. Medlock
 	 
	 	 	Robert J. Medlock, Executive Vice 	 
	 	 	President and-Chief Financial Officer 	 
	 




 









 





Irrevocable Stock Power




     FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers to
the following shares of capital stock of Metal Coaters of California, Inc., a Texas corporation:



	 	 	 	 	 
	 	No. of Shares	 	Certificate No.	 
	 
	 	10,000

	 	4 	 





and irrevocably appoints                                          its agent and attorney-in-fact to transfer all or any part of such
capital stock or equity interest and to take all necessary and appropriate action to effect any
such transfer. The agent and attorney-in-fact may substitute and appoint one or more persons to act
for him.




	 	 	 	 	 
	 	NCI HOLDING CORP.,

a Delaware corporation

 	 
	 	By:  	/s/ Robert J. Medlock
 	 
	 	 	Robert J. Medlock Executive Vice 	 
	 	 	President and Chief Financial Officer 	 
	 




 












 









	UCC FINANCING STATEMENT ‘ FOLLOW Sheila Gask (704)331-2451 B. SEND ACKNOWLEDGMENT TO (Name and
Address) Van Allen 100 North Tryon Street Suite 4700 Charlotte, MC 28202-4003 sheilagask@mvalaw .
com OF I7.C.C. EZLZBG 5BCTJCN JFILED 11:14 AM 06/22/2004 FZLXNS NOM: 4171602 8 : 0000000 SRV:
040458629 THE ABOVE SPACE B FOR FttJNC omC£ USEONLY « ta,<xg NCI wZATdvs make Holding
Corp. AME RRETNAWE MXXE KAME SJFFOL 1 1 05 N. Market Street, Suite 3300 crrr Wilmington STATE DE





 









 












	UCC FINANCING STATEMENT ‘ FOLLOW Sheila Gask (704)331-2451 B. SEND ACKNOWLEDGMENT TO (Name and
Address) Van Allen 100 North Tryon Street Suite 4700 Charlotte, MC 28202-4003 sheilagask@mvalaw .
com OF I7.C.C. EZLZBG 5BCTJCN JFILED 11:14 AM 06/22/2004 FZLXNS NOM: 4171602 8 : 0000000 SRV:
040458629 THE ABOVE SPACE B FOR FttJNC omC£ USEONLY « ta,<xg NCI wZATdvs make Holding
Corp. AME RRETNAWE MXXE KAME SJFFOL 1 1 05 N. Market Street, Suite 3300 crrr Wilmington STATE DE
POSTAL COO: 19801 CCOUTKT gg^“1TM .Corporation If. JUR«01CT10NO=<>?GA.’flZ>,TO.t
Delaware 13 OSCAWZATKWALID”. fi^y i. APKTPNAi. DESTOFfS EXACT FULL LCOAL NAME — l«ort «WS(a:
m«.fn.n i»rtTn»<n«PiarStt) CK 3*. ORSAK2.MOM3 HAVE Wachovia Bank, National Association, as
Administrative Agent 3e. iTErvSjAUS DSr name rRSTKAME MOOLEHAWe SUFTO 3C.MAX»C*£OF£SS 201
South College Street, CP-8 CTY Charlotte STATE NC PosTAicroe 28288 CCilWST USA 4. Tbit F1KANC1W
£7A’XMEK7 conn V All assets and personal property of the Debtor now owned or hereafter acquired.
FILING OFFICE COPY — UCC LSC FmNCIKG STATEMENT (FORM UCC1] (REV. 0&22/02) AJIOueon. . F897507
AS174030






 









 












	UCC FINANCING .STATEMENT Document Number 2004019699-0 Filing Date and Time: 06-22-2004 04:00 PM THE
ACOW VACE 13 KM nUKO OFFKZUtXaHLY Hold For Pickup: — UN1SEARCH, INC. 7583 WATER YEW WAY RENO,NV
89511 775-851-4500 NCI Operatmg Corp. HUCLEKAUC 1 0943 N. Sam Houston Parkway West Houston TX 77064
USA jNevada OR adcimqu I auMiutxw ‘ OEBIQR Sj. CUKIAMZMIOMAI. (0 «. 1 KIT j___Oft Wachovia
Bank, National Association, as Administrative Agent Jh.nomowi.’smrfutfc f**TKWe iccttSJuE Skvnx 20
1 South College Strec^ CP-S CflT Charlotte sun -NC foaw.ooot 28288 cot*nR* USA Al] assets and
pereonal pnq»ty of the Debtor now owned or hereafter acquired. Filled with: NV — Secretary of State
MI74026 FIUNa OFFICE COPY — UCC FWAJiCOtS CTATEMEKT fFOBW \JCC1) (ftEV. OSi52«7)






 









 












	UCC FINANCING STATEMENT FOOJQW ffJSTRUCTtOMS (front an ft. NAME 4 PHONE OF CONTACT AT BLER
JetrtiooaQ Sheila Gssk (704) 33 ] -2451 S. SEND ACKNOWLEDGMENT TO: (torn and Mdracc) 04-0072137105
0S/22/2004 83:13 flM Ifl’im FILED ucxfTirr of SOS 63126640005 THE ABOVE SPACE IS FOR
RUNGOFF1CE US£ ONLT OB Metal Coaters of California, Inc. It lKDIVUXWi.-S LAST MAKE PIRCTKtHE MKt£«
«ME a*nn 10943 N. Sam Houston Parkway West OTV Houston STATE TX 77064 COUKTRT V1* **TSWVC7MS1?
g^ST70” ( Corporation 1 1. JufiBorcnow of oroancatio*. Texas tj. OROAfiZAtOfWl. O ». <
«ny 01483706 nMCr£ 2. ADOfTONAi. DEBTOR’S EXACT FULL LEGAL NfiMZ • OR J..ORCUKATW5MME Z9.
ISOtVOUAl.’S LAST KUt£ ffOETHMSE MOO.ENAVE suffix 2«. MAt/NC ACCK&W 01T STATE «WTALCO« counnrr SFF
WS^T? UiDfrISS 06BTC*! | 3ff. OAOUCZATUNALOI. ( W < of 5C) OR im.OftOAN^A’Ifi’SNAUS-*” Wachovia
Bank, National Association, as Administrative Agent 30 PCIVDLW.-5LA5TKAME FRSrNWJE MJGEUCMAttE &ft&
an. HMUNCAOOiesS 201 South College Street, CP-8 orr Charlotte STATC NC POSTAL COOt 28288 COtWTKY
USA Ait assets and personal property of the Debtor now owned or hereafter acquired 5. AtTERMATIve
CESSWTIOH M »pBhCal>te?L «TF SPCOfOS 8. OPtXJHJU. FILER REFERENCE DATA Filed with: TX -
Secretary of State rpfts; FS97S03






 









 












	HUNG OFFICE COPT — UCC FINANCING STATEMENT <FORM UCC1> (REV. 05/22/D2) ) w UCC
FINANCING STATEMENT F<XlOW_tNSTRtJCTK*B (front and tad} CtflEFUU.y fl. HW.e i PHONE OP COffTACT
AT RLER Jos* oral) Sheila Gask (704)331-2451 Return acJo»w!cdRnv:r.t t<x 04-0072137216
06/22/2004 89:13 AN mnHH filed TtXM UQIXTUT OF SOS Cipiwl Serrica, Ins. P.O.BoxlSJl
AwtinTX7B767 800/W5-4647 I Hirv THE ABOVE SPACe IS FOR RLttW OFFICE US£ ONLY OR ;x cffZfxejxKHfS
jmms A&S Bnilding Systems, L.P. ICLlNdVOXML’SUtSTKUE f!S!STWAl<£ V3Cx.eWJ£ SUfFK 1C.
UA.1ffGJUXRe&i 10943 N. Sam Houston Parkway West CTT Houston STATE TX pccrrMcoce 77064 COUNTRY USA
id. *ff ^ ‘^TK^^^flM? ffXI\.*fOK j 1«. TYPE O5 O« WCiSTION OfiCAMZATKK ‘in RSTOR j ***
lf.JUfBSDCTlOKC”;ORC>i.Vi«.TlON’ j:j,ORC«ijATIC»«LD». <«w Vcxas ,93961-JO n^ 2. ACDtTIOKA1.
DEBTOR’S EXACTmu.LEGAL IWM£.rMHauygjaaaofmmc (2aof»).ttonet OR 2a.OR5A*a*T*JffSN*«E % IKOTrtDLttL’S
LAST NAME FIRST KAME M40CtE N/Uitt SURW •fL ihu, KG ADCfi£SS CTY STATE POSTAL COOG COUNTRY
AOOT. Wf 0 fie |2*. ‘n-PE OC o«OAMZAI10>i a. ju:asccTX)Nof oRGAwUAnoN 27. OROAHZAI»HAL 10 ».
< MJ OS u.c*;<ij«z*:ig»,rsn»Mfc Wachovia Bank, National Association, as Administrative Agent
Si- ifOnnoWL’S last iwrtl flRSTNAUS i/*cx£.K/we SUfftt X. UAOJNCAOORE55 201 South College
Street, CP-8 CfTY Charioite s^*vr~ NC eosi«.cooe 28288 CDUKTRT USA •<. TM FMAJCTOC:STATEMENT
o«il en te*ff-i>3 cousin: All assets and personal property of the Debtor now owned or hereafter
acquired. 6, |l ‘ft» >»> ua^- ‘ «10K t«S f W rccOWJ JW rniorec m Uw B£Ai Fiied with: TX -
Secretary of Stale F»97512 FtUNG OFFICE COPY — UCC FINANCING S7ATEMEST {FORM UCC1) (REV.






 









 












	UCC FINANCING STATEMENT FOU.OW t NAME t PMOKE Of CONTACT AT FILER loptaalj Sheila Cask
(704)331-245) B. SEND ACKNOWLEDGMENT TO: (Haaa art MOitta) 04-0072138126 26/22/3004 89:13 fiM
iiraiflN filed Stotcrxrr of iwtr SOS Caprrol Semos. Inc. P.O. Box I8JI Au«ui TX
7S767 SCO/J4 5 ^647 63126640039 THE ABOVE SPACE IS POR RUNG OFPCE USEONLV 1. DEBTOR’S EXACT RJU.
l£C«-N*J^-««torty£t OR 1 «- CRCXAN1ZAT1CK-S HAVE NCI Building Systems, LJP. It. JNCr/WJAfSCASf KAM6
FlftJTMAME KOOtENAMg attfu 10943 N. Sam Houston Parkway West Houston STATE TX POSTALOOO6 77064
COuwnfr USA Id. ^^^^TRy^-TK**5 *0£n.lfifOR£ J1e. TTPEOf CfWAN^ATlON CftGAKZAT)O« ‘ I p OESTOfi |
1-I •>i.juRQC“cnoHO«o!CArAZAT>a.M Texas 00068 1 24- !0 j-)^ I. AOCHTOWlDEBTOR’S
EXACTFUU.LESAi.NAMc-m OR £• OftOAKCATJC’^J’S HAW£ ^ tNOfVD(JAl,’^Ot>T (^Urtt f9tSTHMW£
«w-enave ic.KA/owiAooeess O7Y \ sure posTAi.ccoe COUWTRT 3d asETfsniyF1-*0!^ AOP“tWPOR£
|2e,TTP£O^C«GANJ£ATJON Oft(iANL2ATO« CSBTOft [ Jt JUftLSC«—!nOMOPO*^5*>tSAT>OW t2f.
ORCAWG^UONAUD*. f »bj Ofi 2l ORuANCATIOHSNMIE Wadiovia Bank, National Association, as
Administrative Agent 30. IMOVDUAL’S LAST MIME MSTtMME «3Di.e kaja£ SUFftX X. MAOJNCAOCAE2S
201. South College Street, CP-8 cirr Charlotte STATE NC POSTAL CO« 28288 C3UHTOT USA 4. Trx FMANCnc
STATEMENT com owi tounrfng mWett: All assets and personal property of (be Debtor now owned or
hereafter acquired. S. A^reaHATive sxsknmkih ji jac, lieu Filed with: TX -
Secretary of State 7J97831 FH.WQ OfRCE COPY — UCC FSMANC1NG STATEWSNT (FORM OCC1) (R£V. 05.-Z2/OZ)






 









 












	UCC RNANCING STATEMENT FOLLOW PJSTTilJCTQNS (Tear! aaj bactl CAREFULLY ft, NJWE & PHONE OF
CONTACT AT FILER JopUonaJl Sheila Gasic (704) 331 -2451 B. SEND ACKNOWLEDGMENT TO: (Norn* and W*«i)
Rctam achiowlaJgmect to: 04-0072138015 66/22/2084 09:13 All FILED TOAS uonrwrr on “<n SOS Ope
tot Services, lot. P.O. Box 1851 Aiaiio TX 7S757 800/34 S-4&S7 63128840808 THE MOVE SPACE IS FOR
RUNG OFFlceySEOKlY 1.DEBTOR’S SMCTFUU. LEGAL Wfrre-’ OR Metal Building Components, L.P. 1 a.
iMOfttXJAfSLAST NAME f BST HAME M3CCEMAMS 10943 N. Sam Houston Parkway West crrr Houston STATE TX
POSTAL COO£ 77064 USA lEFIV^ji^^JVJKX CRSAf3ZATJ>J 1 p OSSTCR [Lr It. JumS3JCT)ONO^
O«UANti>TJO.*J Texas 1 jl OSOAHlATOHAi. K? ». 1 »ht 00107973-10 [-]w 2.
ADQTOSA^ DEBTOR’S EXACT FULL LEGAL NtMS • inv^leny gaa»am iam« S« o> Itl. Jo na
J..C«GA«2ATCf.-Sf<A«£ 16 *5>VOV;w!.-5 LAST HAW£ flFlSTNM*£ SMS *” ^L UAJLWC AOO«eS5 CTf *
WA,«C, COUMTRT w if? rrnRu^vs owwziaeiN !3c’“i’EO!: i. jyfESCSrriONOf OHGA«ii»>‘ON
to CRGAMZAT1ONA4. C «. s»ny OR 5«. ORCAHl2ATOtfS NAKb Wachovia Bank, National Association,
as Administrative Agent 3&. UvOIVCUM.’S 173? HAWC RRSTHAVS UORENMIg -SUfFK 3t UAtJMJAOORESS 201
South College S^eet, CP-8 CTTr Charlotte STAJt NC postal coos 28288 COUNIRr USA L TV. f
BhlAKOMS SI*TEM£Nrcm»» ffn k*waj toaucal; AH assets and personal property of the Debtor
now owned or hereafter acquired. S. A1.7SBXATTVE DSSlGMAnOMIll JOCic Ji.essE£.v£ssoa Filed with: TX
- Secretary of State pbjnc office copy — ucc fihancjng statement (FORM ucci)
irev, 






 









 












	UCC FINANCING STATEMENT FOLLOW A. NAME PHONE OF CONTACT AT SheilaGask (704)331-2451 SEND
ACKNOWLEDGMENT TO: (Name and Address) 04-0072137983 06/22/2004 FILED SOS Capital Service, Inc. P.O.
Box 1831 Austin TX787S7 800/345-4647 63126640007 THE ABOVE SPACE IS FOR FILING: OFFICE USE ONLY 11
NCI Group, L.P. FIRST NAME WE 10943 N. Sam Houston Parkway West Houston STATE TX 77064 USA M
ORGANISATION LP Texas 00107975-10 OR 21. ORGANIZATIONS NAME FIRST NAME CITY COUNTRY 2
ORGANIZATIONAL OR Wachovia Bank, National Association, as Administrative Agent LAST NAME FlRST NAME
MIDDLE NAME 201 South College Street, CP-8 Charlotte STATE POSTAL CODE 28288 COUNTRY USA All assets
and personal property of the Debtor now owned or hereafter acquired. Filed with: TX — Secretary of
State






 











 





NOTICE




OF



GRANT OF SECURITY INTEREST



IN



COPYRIGHTS



United States Copyright Office



Gentlemen:




     Please be advised that pursuant to the Security Agreement dated as of June 18, 2004 (as the
same may be amended, modified, extended or restated from time to time, the “Security
Agreement”) by and among the Obligors thereto (each an “Obligor” and collectively,
the “Obligors”) and Wachovia Bank, National Association, as Administrative Agent (the
“Administrative Agent”) for the lenders referenced therein (the “Lenders”), the
undersigned Obligor has granted a continuing security interest in and continuing lien upon, the
copyrights and copyright applications shown below to the Administrative Agent for the ratable
benefit of the Lenders:



COPYRIGHTS




	 	 	 	 	 
	 	 	Description of	 	 
	Copyright No.	 	Copyright	 	Date of Copyright
	 
	 	See Schedule 1 attached hereto	 	 






COPYRIGHT APPLICATIONS




	 	 	 	 	 
	 	 	Description of Copyright	 	Date of Copyright
	Copyright Application No.	 	Applied For	 	Application
	 
	 	See Schedule 1 attached hereto	 	 






NCI Building Systems, Inc.




Copyrights Notice







 









 








     The Obligors and the Administrative Agent, on behalf of the Lenders, hereby
acknowledge and agree that the security interest in the foregoing copyrights and copyright
applications (i) may only be terminated in accordance with the terms of the Security Agreement
and (ii) is not to be construed as an assignment of any copyright or copyright application.



	 	 	 	 	 
	 	 	Very truly yours,
	 
	 	 	 	 
	 	 	Metal Building Components, L.P., a Texas 
Limited Partnership
	 
	 	 	 	 
	 

	 	By:
	 	NCI Operating Corp.,
	 

	 	 	 	as General Partner
	 
	 	 	 	 
	 

	 	By:
	 	/s/ Robert J. Medlock
	 

	 	 	 	 
	 	 	Name: Robert J. Medlock
	 	 	Title: Exec. V.P. & CFO






	 	 	 	 	 
	 	Acknowledged and Accepted:



WACHOVIA BANK, NATIONAL ASSOCIATION, 

as Administrative Agent

 	 
	 	By:  	/s/ Glenn Edwards
 	 
	 	Name: Glenn Edwards 	 
	 	Title:  Managing Director 	 
	 



NCI Building Systems, Inc.




Copyrights Notice







 









 








Schedule 1




Metal Building Components, L.P.



U.S. Registered Copyrights



	 	 	 	 	 	 	 	 	 
	Marks	 	Registration No	 	Registration Date
	Ultra-Dek 124 and Double-Lok 124 computer estimating / material take-off program
	 	 	TX3211051	 	 	 	12/12/91	 
	Ultra-simple, ultra-sure, Ultra-Dek 124
	 	 	TX1938083	 	 	 	10/02/86	 
	M B C I
	 	 	TX1924612	 	 	 	10/02/86	 
	Ultra-Dek 124 erection manual
	 	 	TX1924543	 	 	 	10/02/86	 
	Ultra-Dek 124
	 	 	TX1923318	 	 	 	10/02/86	 






 









 






NOTICE




OF



GRANT OF SECURITY INTEREST



IN



PATENTS



United States Patent and Trademark Office



Gentlemen:




     Please be advised that pursuant to the Security Agreement dated as of June 18, 2004 (the
“Security Agreement”) by and among the Obligors thereto (each an “Obligor”and
collectively, the “Obligors”) and Wachovia Bank, National Association, as Administrative
Agent (the “Administrative Agent”) for the lenders referenced therein (the
“Lenders”), the undersigned Obligor has granted a continuing security interest in and
continuing lien upon, the patents and patent applications shown below to the Administrative Agent
for the ratable benefit of the Lenders:



PATENTS




	 	 	 	 	 
	 	 	Description of	 	 
	Patent No.	 	Patent	 	Date of Patent
	 

	 	See Schedule 1 attached hereto	 	 






PATENT APPLICATIONS




	 	 	 	 	 
	 	 	Description of Patent	 	Date of Patent
	Patent Application No.	 	Applied For	 	Application
	 
	 	See Schedule 1 attached hereto	 	 






NCI Building Systems, Inc.




Patent Notices







 









 








     The Obligors and the Administrative Agent, on behalf of the Lenders, hereby
acknowledge and agree that the security interest in the foregoing patents and patent
applications (i) may only be terminated in accordance with the terms of the Security Agreement
and {ii) is not to be construed as an assignment of any patent or patent application.



	 	 	 	 	 
	 	 	Very truly yours,
	 
	 	 	 	 
	 	 	NCI Building Systems, L.P., a Texas 
Limited Partnership
	 
	 	 	 	 
	 

	 	By:
	 	NCI Operating Corp.,
	 

	 	 	 	as General Partner
	 
	 	 	 	 
	 

	 	By:
	 	/s/ Robert J. Medlock
	 

	 	 	 	 
	 	 	Name: Robert J. Medlock
	 	 	Title: Exec. V.P. & CFO






	 	 	 	 	 
	 	
Acknowledged and Accepted:



WACHOVIA BANK, NATIONAL ASSOCIATION, 

as Administrative Agent

 	 
	 	By:  	/s/ Glenn Edwards
 	 
	 	Name:  Glenn Edwards 	 
	 	Title:  Managing Director 	 
	 



NCI Building Systems, Inc.




Patent Notices







 









 








Schedule 1




NCI Building Systems, L.P.

(Delaware Corporation)



U.S. Patents



Issued Patents




	 	 	 	 	 	 	 	 	 
	Description	 	Patent No.	 	Issued
	APPARATUS FOR RETROFITTING A METAL ROOF
	 	 	5855101	 	 	 	01/05/99	 
	VENTED CLOSURE
	 	 	5605022	 	 	 	02/25/97	 
	APPARATUS AND METHOD FOR RETROFITTING A METAL ROOF
	 	 	5402572	 	 	 	04/04/95	 
	STRUCTURAL MEMBER FOR USE IN THE CONSTRUCTION OF
	 	 	6519908	 	 	 	02/18/03	 






Pending Applications




	 	 	 	 	 	 	 	 	 
	Description	 	Application No	 	Filing Date
	STRUCTURAL MEMBER FOR USE IN THE CONSTRUCTION OF
	 	 	10314852	 	 	 	 	 
	MULTI-STORY BUILDING AND METHOD FOR CONSTRUCTION
	 	 	10435303	 	 	 	 	 
	METHOD AND APPARATUS FOR SUSPENDING A DOOR
	 	 	10619744	 	 	 	 	 






 









 






NOTICE




OF



GRANT OF SECURITY INTEREST



IN



TRADEMARKS



United States Patent and Trademark Office



Gentlemen:





	     Please be advised that pursuant to the Security Agreement dated as of June 18, 2004 (the
“Security Agreements”) by and among the Obligors thereto (each an “Obligor” and
collectively, the “Obligors”) and Wachovia Bank, National Association, as Administrative
Agent (the “Administrative Agent”) for the lenders referenced therein (the
“Lenders”), the undersigned Obligor has granted a continuing security interest in and
continuing lien upon, the trademarks and trademark applications shown below to the Administrative
Agent for the ratable benefit of the Lenders:





TRADEMARKS




	 	 	 	 	 
	 	 	Description of	 	 
	Trademark No.	 	Trademark	 	Date of Trademark
	 

	 	See Schedule 1 attached hereto	 	 






TRADEMARK APPLICATIONS



	 	 	 	 	 
	 	 	Description of Trademark	 	Date of Trademark
	Trademark Application No.	 	Applied For	 	Application
	 
	 	See Schedule 1 attached hereto	 	 
	 
	 	 	 	 






 









 






     The Obligors and the Administrative Agent, on behalf of the Lenders, hereby acknowledge and
agree that the security interest in the foregoing trademarks and trademark applications (i) may
only be terminated in accordance with the terms of the Security Agreement and (ii) is not to be
construed as an assignment of any trademark or trademark application.



	 	 	 	 	 
	 	 	Very truly yours,
	 
	 	 	 	 
	 	 	A & S Building Systems, L.P., 
a Texas Limited Partnership
	 
	 	 	 	 
	 

	 	By:
	 	NCI Operating Corp.,
	 

	 	 	 	as General Partner
	 
	 	 	 	 
	 

	 	By:
	 	/s/ Robert J. Medlock
	 

	 	 	 	 
	 	 	Name: Robert J. Medlock
	 	 	Title: Exec. V.P. & CFO






	 	 	 	 	 
	 	
Acknowledged and Accepted:



WACHOVIA BANK, NATIONAL ASSOCIATION, 

as Administrative Agent

 	 
	 	By:  	/s/ Glenn F. Edwards
 	 
	 	Name:  Glenn F. Edwards 	 
	 	Title:  Managing Director 	 
	 



NCI Building Systems, Inc.




Trademark Notices







 









 








Schedule 1




A&S Building Systems, L.P.

(Texas Corporation)



U.S. Trademarks



Registered Marks




	 	 	 	 	 	 	 	 	 
	Marks	 	Registration No	 	Registration Date
	VISTASHEEN
	 	 	2335371	 	 	 	03/28/00	 
	VISTACOLOR
	 	 	2335370	 	 	 	03/28/00	 
	VISTASHADOW
	 	 	2335369	 	 	 	03/28/00	 






 












 





NOTICE




OF



GRANT OF SECURITY INTEREST



IN



TRADEMARKS


United States Patent and Trademark Office



Gentlemen:




     Please
be advised that pursuant to the Security Agreement dated as of June 18, 2004
(the “Security Agreement”) by and among the Obligors thereto (each an “Obligor” and
collectively, the “Obligors”) and Wachovia Bank, National Association, as Administrative
Agent (the “Administrative Agent”) for the lenders referenced therein (the
“Lenders”), the undersigned Obligor has granted a continuing security interest in and
continuing lien upon, the trademarks and trademark applications shown below to the Administrative
Agent for the ratable benefit of the Lenders:



TRADEMARKS




	 	 	 	 	 
	 	 	Description of	 	 
	Trademark
No.	 	Trademark	 	Date of Trademark
	 
	 	See Schedule 1 attached hereto	 	 






TRADEMARK APPLICATIONS




	 	 	 	 	 
	 	 	Description of Trademark	 	Date of Trademark
	Trademark Application No.	 	Applied For	 	Application
	 
	 	See Schedule 1 attached hereto	 	 






 









 






     The Obligors and the Administrative Agent, on behalf of the Lenders, hereby acknowledge and
agree that the security interest in the foregoing trademarks and trademark applications (i) may
only be terminated in accordance with the terms of the Security Agreement and (ii) is not to be
construed as an assignment of any trademark or trademark application.



	 	 	 	 	 
	 	 	Very truly yours,
	 
	 	 	 	 
	 	 	Metal Building Components, L.P.,
	 	 	a Texas Limited Partnership
	 
	 	 	 	 
	 

	 	By:
	 	NCI Operating Corp.,
	 

	 	 	 	as General Partner
	 
	 	 	 	 
	 

	 	By:
	 	/s/ Robert J. Medlock
	 

	 	 	 	 
	 	 	Name: Robert J. Medlock
	 	 	Title: Exec V.P and  CFO






	 	 	 	 	 
	 	







Acknowledged and Accepted:





WACHOVIA BANK, NATIONAL ASSOCIATION, 

as Administrative Agent

 	 
	 	By:  	/s/ Glenn F. Edwards
 	 
	 	Name:  Glenn F. Edwards 	 
	 	Title:  Managing Director 	 
	 



NCI Building Systems, Inc.




Trademark Notices








 









 








Schedule 1




Metal Building Components, L.P.

(Texas Corporation)



U.S. Trademarks



Registered Marks




	 	 	 	 	 	 	 	 	 
	Marks	 	Registration No	 	Registration Date
	SPEEDY STEEL GARAGE and Design
	 	 	2581159	 	 	 	06/18/02	 
	WEATHERSAFE
	 	 	2489812	 	 	 	09/18/01	 
	MILLENIUM
	 	 	2458977	 	 	 	06/12/01	 
	3/4” HIGH RIB
	 	 	2450419	 	 	 	05/15/01	 
	SL-16
	 	 	2359209	 	 	 	06/20/00	 
	7/8” WIDE RIB
	 	 	2478821	 	 	 	08/21/01	 
	BI-36
	 	 	2266746	 	 	 	08/03/99	 
	S-36
	 	 	2262735	 	 	 	07/20/99	 
	B-36
	 	 	2259247	 	 	 	07/06/99	 
	AMERI-DRAIN
	 	 	2264507	 	 	 	07/27/99	 
	ROYAL LOCK
	 	 	2770513	 	 	 	10/07/03	 
	SUPRA-RIB
	 	 	2647624	 	 	 	11/12/02	 
	SLIMLINE
	 	 	2192160	 	 	 	09/29/98	 
	RAIN GUARD
	 	 	2192159	 	 	 	09/29/98	 
	STORMPROOF
	 	 	2277089	 	 	 	09/14/99	 
	LITEFRAME
	 	 	2266112	 	 	 	08/03/99	 
	ARTISAN
	 	 	2262021	 	 	 	07/20/99	 
	PERMA-CLAD
	 	 	2193540	 	 	 	10/06/98	 
	CLASSIC
	 	 	2256416	 	 	 	06/29/99	 
	TRADITIONAL
	 	 	2286987	 	 	 	10/19/99	 
	NUWALL
	 	 	2218230	 	 	 	01/19/99	 
	SUPERLOK
	 	 	2161830	 	 	 	06/02/98	 
	IMPERIAL RIB
	 	 	1980366	 	 	 	06/18/96	 
	FLEXLOC
	 	 	1950005	 	 	 	01/23/96	 
	ABC AMERICAN BUILDING COMPONENTS and Design
	 	 	1926989	 	 	 	10/17/95	 
	MONARCH RIB
	 	 	1905298	 	 	 	07/18/95	 
	NUROOF
	 	 	1917593	 	 	 	09/12/95	 
	SIGNATURE
	 	 	1750427	 	 	 	02/02/93	 
	BATTENLOK
	 	 	1686016	 	 	 	05/12/92	 
	LOKSEAM
	 	 	1684278	 	 	 	04/28/92	 
	DOUBLE-LOK 124
	 	 	1613519	 	 	 	09/18/90	 
	MBCI and Design
	 	 	1424579	 	 	 	01/13/87	 
	ULTRA-DEK 124
	 	 	1310768	 	 	 	12/25/84	 
	MBCI and Design
	 	 	1206560	 	 	 	08/24/82	 
	RUGGED RIB
	 	 	1171944	 	 	 	10/06/81	 
	REGAL RIB
	 	 	1082255	 	 	 	01/17/78	 
	AJAX
	 	 	236307	 	 	 	12/06/27	 






Pending Applications








 









 








NOTICE




OF



GRANT OF SECURITY INTEREST



IN



TRADEMARKS


United States Patent and Trademark Office



Gentlemen:




     Please be advised that pursuant to the Security Agreement dated as of June 18, 2004 (the
“Security Agreement”) by and among the Obligors thereto (each an “Obligor” and
collectively, the “Obligors”) and Wachovia Bank, National Association, as Administrative
Agent (the “Administrative Agent”) for the lenders referenced therein- (the “Lenders”), the
undersigned Obligor has granted a continuing security interest in and continuing lien upon, the
trademarks and trademark applications shown below to the Administrative Agent for the ratable
benefit of the Lenders:



TRADEMARKS




	 	 	 	 	 
	 	 	Description of	 	 
	Trademark No.	 	Trademark	 	Date of Trademark
	 

	 	See Schedule 1 attached hereto	 	 






TRADEMARK APPLICATIONS



	 	 	 	 	 
	 	 	Description of Trademark	 	Date of Trademark
	Trademark Application No.	 	Applied For	 	Application
	 
	 	See Schedule 1 attached hereto	 	 






 









 






     The Obligors and the Administrative Agent, on behalf of the Lenders, hereby acknowledge and
agree that the security interest in the foregoing trademarks and trademark applications (i) may
only be terminated in accordance with the terms of the Security Agreement and (ii) is not to be
construed as an assignment of any trademark or trademark application.



	 	 	 	 	 
	 	 	Very truly yours,
	 
	 	 	 	 
	 	 	NCI Group, L.P.,
	 	 	a Texas Limited Partnership
	 
	 	 	 	 
	 

	 	By:
	 	NCI Operating Corp.,
	 

	 	 	 	as General Partner
	 
	 	 	 	 
	 

	 	By:
	 	/s/ Robert F. Medlock
	 

	 	 	 	 
	 	 	Name: Robert F. Medlock
	 	 	Title: Exec V.P and CFO






	 	 	 	 	 
	 	







Acknowledged and Accepted:





WACHOVIA BANK, NATIONAL ASSOCIATION, 

as Administrative Agent

 	 
	 	By:  	/s/ Glenn F. Edwards
 	 
	 	Name:  
Glenn F. Edwards 	 
	 	Title:  Managing Director 	 
	 



NCI Building Systems, Inc.




Trademark Notices








 









 








Schedule 1




NCI Group, L.P.

(Texas Corporation)



U.S. Trademarks



Registered Marks




	 	 	 	 	 	 	 	 	 
	Marks	 	Registration No	 	Registration Date
	DOUBLECOTE and Design
	 	 	2005583	 	 	 	10/08/96	 
	METAL COATERS and Design
	 	 	1675343	 	 	 	02/11/92	 
	METAL-PREP and Design
	 	 	1663644	 	 	 	11/05/91	 






 









 






NOTICE




OF



GRANT OF SECURITY INTEREST



IN



TRADEMARKS



United States Patent and Trademark Office



Gentlemen:




     Please be advised that pursuant to the Security Agreement dated as of June 18, 2004 (the
“Security Agreement”) by and among the Obligors thereto (each an “Obligor” and
collectively, the “Obligors”) and Wachovia Bank, National Association, as Administrative
Agent (the “Administrative Agent”) for the lenders referenced therein (the
‘Lenders”), the undersigned Obligor has granted a continuing security interest in and
continuing lien upon, the trademarks and trademark applications shown below to the Administrative
Agent for the ratable benefit of the Lenders:



TRADEMARKS





	 	 	 	 	 
	 	 	Description of	 	 
	Trademark No.	 	Trademark	 	Date of Trademark
	 

	 	See Schedule 1 attached	 	 
	 
	 	hereto	 	 








TRADEMARK APPLICATIONS




	 	 	 	 	 
	 	 	Description of Trademark	 	Date of Trademark
	Trademark Application No.	 	Applied For	 	Application
	 
	 	See Schedule 1 attached	 	 
	 
	 	hereto	 	 






 









 






     The
Obligors and the terms of the Security Agreement and (ii) is not to be
construed as an assignment of any trademark or trademark application.



	 	 	 	 	 
	 	 	Very truly yours,
	 
	 	 	 	 
	 	 	NCI Building Systems, Inc L.P.,
	 	 	a Texas Limited Partnership
	 
	 	 	 	 
	 

	 	By:
	 	NCI Operating Corp.,
	 

	 	 	 	as General Partner
	 
	 	 	 	 
	 

	 	By:
	 	/s/ Robert J. Medlock
	 

	 	 	 	 
	 	 	Name: Robert J. Medlock
	 	 	Title: Exec V.P & CFO






	 	 	 	 	 
	 	







Acknowledged and Accepted:





WACHOVIA BANK, NATIONAL ASSOCIATION, 

as Administrative Agent

 	 
	 	By:  	/s/ Glenn F. Edwards
 	 
	 	Name:  Glenn  F. Edwards 	 
	 	Title:  Managing Director 	 
	 



NCI Building Systems, Inc.




Trademark Notice







 









 








Schedule 1




NCI Building Systems, L.P.

(Texas Corporation)



U.S. Trademarks



Registered Marks




	 	 	 	 	 	 	 	 	 
	Marks	 	Registration No	 	Registration Date
	DBCI and
Design
	 	 	2837799	 	 	 	05/04/04	 
	TUFF-SHIELD
	 	 	2662600	 	 	 	12/17/02	 
	LONG BAY SYSTEM
	 	 	2485858	 	 	 	09/04/01	 
	SS216
	 	 	2169345	 	 	 	06/30/98	 
	ARCHITECTURAL LOC
	 	 	2202364	 	 	 	11/03/98	 
	CLASSIC STEEL FRAME HOMES
	 	 	2183547	 	 	 	08/25/98	 
	VERTI-LOC
	 	 	2085914	 	 	 	08/05/97	 
	DBCI
	 	 	2071877	 	 	 	06/17/97	 
	METALLIC
	 	 	2119193	 	 	 	12/09/97	 
	NCI
	 	 	2079167	 	 	 	07/15/97	 
	AAS and Design
	 	 	2035454	 	 	 	02/04/97	 
	ARS and Design
	 	 	2030149	 	 	 	01/14/97	 
	MW and Design
	 	 	2030148	 	 	 	01/14/97	 
	A&S BUILDING SYSTEMS
	 	 	2028846	 	 	 	01/07/97	 
	NCI and Design
	 	 	2028845	 	 	 	01/07/97	 
	MID-WEST STEEL BUILDING COMPANY
	 	 	2040247	 	 	 	02/25/97	 
	NCI BUILDING COMPONENTS
	 	 	2028844	 	 	 	01/07/97	 
	NCI EXPRESS and Design
	 	 	2052295	 	 	 	04/15/97	 
	METALLIC BUILDING COMPANY
	 	 	2110344	 	 	 	11/04/97	 
	VALUE EXPRESS and Design
	 	 	2054529	 	 	 	04/22/97	 
	ROYAL K-70
	 	 	2025884	 	 	 	12/24/96	 
	DURA-20
	 	 	2037498	 	 	 	02/11/97	 
	METALLIC and Design
	 	 	623865	 	 	 	03/27/56	 
	CLASSIC STEEL FRAME HOMES and Design
	 	 	2741396	 	 	 	07/29/03	 
	IPS and Design
	 	 	2196662	 	 	 	10/13/98	 
	ECI and Design
	 	 	2296476	 	 	 	11/30/99	 
	RETRO-R
	 	 	1906296	 	 	 	07/18/95	 
	VERSALOK
	 	 	1503560	 	 	 	09/13/88	 
	MMESCO
	 	 	1069517	 	 	 	07/12/77	 
	MMESCO
	 	 	1055914	 	 	 	01/11/77	 






Pending Applications




	 	 	 	 	 	 	 	 	 
	Marks	 	Application No	 	Filing Date
	SS STEEL SYSETMS and Design
	 	 	76496573	 	 	 	03/12/03	 
	NCI METAL DEPOTS and Design
	 	 	76473683	 	 	 	12/10/02	 
	A&S A&S BUILDING SYSTEMS and Design
	 	 	76437478	 	 	 	08/05/02	 







 











 





NCI HOLDING CORP.



PROMISSORY NOTE



			
	 	 	 
	Wilmington, Delaware
	 	May 5, 1998





     NCI Holding Corp., a Delaware corporation (the “Company”), for value received,
hereby promises to pay to the order of NCI Building Systems, Inc., a Delaware corporation and the
sole owner of all of the issued and outstanding capital stock of the Company (“Payee”).
the principal sum of FIVE HUNDRED FIFTY MILLION AND NO/100 DOLLARS ($550,000,000) subject to
adjustment as herein provided (the “Principal Amount”), and to pay interest on the unpaid
balance of the Principal Amount at the rate herein provided



          1. Adjustment to Principal Amount The Company and Payee agree that (i) this Note is
being given by the Company to Payee in consideration of the transfer by Payee to the Company of
all of the issued and outstanding capital stock of Amatek Holdings, Inc., a Texas corporation
(“Amatek”), acquired by Payee pursuant to that certain Stock Purchase Agreement, dated March 25,
1998, as amended by letter agreement dated May 4, 1998 (the
“Purchase Agreement”), by and
between Payee and BTR Australia Limited, a corporation organized under the laws of Australia
(“BTR”), and joined therein for certain limited purposes by BTR plc and (ii) the Principal Amount
of this Note is based on the Purchase Price (as defined in the Purchase Agreement) paid by Payee
for the capital stock of Amatek. The Company and Payee acknowledge and agree that if the Purchase
Price is adjusted in accordance with the terms and provisions of the Purchase Agreement that the
Principal Amount of this Note shall be adjusted ab initio to reflect such adjusted
Purchase Price for the capital stock of Amatek as if such adjusted Purchase Price had constituted
the Principal Amount on the date of this Note. The Principal Amount shall also be increased for
any acquisition costs paid to parties other than BTR that are capitalized by Payee for federal
income tax purposes into the purchase price of the capital stock of Amatek.



          2. Payment.



               (a) Interest shall accrue on the Principal Amount from the date hereof. For each Interest
Period (as defined in that certain Credit Agreement, dated
March 25, 1998, by and among Payee,
NationsBank of Texas, N.A., NationsBanc Montgomery Securities LLC, Swiss Bank Corporation and the
several Lenders named therein, or any commercial credit agreement entered into by Payee in
replacement, refinancing or substitution thereof (as amended, supplemented, restated, replaced or
substituted, the “Credit Agreement”), or as its equivalent period is defined in any
amended, supplemented, restated, replaced or substituted Credit Agreement), interest shall accrue
at a per annum rate of two percent over the highest applicable interest rate being paid at any
time during the Interest Period by Payee to (i) its principal commercial lenders pursuant to the
Credit Agreement or (ii) the holders of any senior or subordinated notes of the Payee, if any,
issued by Payee from time to time for money borrowed. Accrued interest shall be due and payable by
the



 









 




Company to Payee on the last day of each. Interest Period until the outstanding principal sum of
this Note is paid in full. If no commercial credit facility or indebtedness for money borrowed
is outstanding, interest shall accrue at a rate of ten percent (10%) per annum.




               (b) The Principal Amount is due and payable, in one or more installments, on demand on such
dates and in such amounts as specified by Payee, together with the accrued interest, if any,
specified in such demand; provided, however, that in no event shall the date on which a
payment is due be earlier than ten (10) days from the date a demand is made; provided
further that if Payee is not the holder of this Note (after the negotiation of this Note to a
holder in due course) the Principal Amount is payable on demand. If no demand is earlier made,
the entire outstanding Principal Amount, plus any accrued but unpaid interest thereon, shall be
due and payable in full on May 5,2018.



               (c) Payments pursuant to the terms of this Note shall be credited first to the payment of
all costs and expenses of collection of this Note incurred by the holder of this Note, second to
accrued but unpaid interest to the extent thereof, and thereafter to unpaid principal.



               (d) Any payments made by any of the Guarantors (as defined therein) of the Credit Agreement
to discharge obligations of Payee thereunder shall also be deemed to discharge the obligations of
the Company under this Note in an amount not to exceed the Company’s right to such funds (via
distributions of partnership earnings or corporate dividend contributions) due to its direct or
indirect ownership percentage in the relevant Guarantor entity. Any such deemed payments made by
the Guarantors shall be applied first to the payment of all costs and expenses of collection of
this Note incurred by the holder of this Note, second as a credit to accrued but unpaid interest
hereunder, and thereafter to unpaid principal.



          3. Prepayment This Note may be prepaid in whole or in part at any time or from time
to time at the option of the Company, without premium or penalty.




          4. Default. A default shall occur hereunder if any payment under this Note is not
made when due. In the event of a default, the entire principal balance and accrued but unpaid
interest thereon shall, at the option of the holder of this Note, at once become due and payable
without further notice.




          5. Attorneys’ Fees. If this Note is placed in the hands of an attorney for
collection pursuant to a suit or legal proceedings or through bankruptcy proceedings, the
Company agrees to pay in addition to all sums then due hereunder, including principal and
interest, and all expenses of collection, including reasonable attorneys’ fees.




          6. Waiver. To the extent permitted by applicable law, the Company hereby waives
presentment and demand for payment, protest, and notice of protest, notice of intention to
accelerate, notice of acceleration, dishonor and nonpayment.






2









 








          7. Interest on Past Due Amounts. All past due principal and interest shall bear
interest at the highest rate permitted by applicable law.




          8. Usury Savings Clause. Notwithstanding any provisions to the contrary in this Note,
or in any other documents securing payment hereof or otherwise relating hereto, in no event shall
this Note require the payment or permit the collection of interest, as defined under the applicable
usury laws, in excess of the maximum amount permitted by such laws. If any such excess interest is
contracted for, charged, taken, reserved or received under this Note or under the terms of any
other documents securing payment hereof or otherwise relating hereto, or in the event applicable
law shall be judicially interpreted so as to render usurious any amount called for under this Note
or under the terms of any other documents relating hereto, or in the event the maturity of the
indebtedness evidenced by the Note is accelerated in whole or in part, or in the event that all or
part of the principal or interest of the Note shall be prepaid, so that under any such
circumstances the amount of interest contracted for, charged, taken, reserved or received under
this Note or any other documents securing payment hereof or otherwise relating hereto, on the
amount of principal actually outstanding from time to time under the Note shall exceed the maximum
amount of interest permitted by applicable usury laws, then in any such event: (a) the provisions
of this paragraph shall govern and control, (b) to the extent permissible under applicable laws,
the excess amount of interest which may have been charged, taken, reserved, received or collected
shall be applied (i) as a credit against the then unpaid principal amount on the Note or (ii)
refunded to the person paying the same, at the holder’s option, (c) the effective rate of interest
shall be automatically reduced to the maximum lawful rate reserved or received from the party
obligated thereon under applicable laws as now or hereafter construed by the courts having
jurisdiction thereof and (d) the provisions of this Note shall be deemed reformed and the amounts
thereafter collectible hereunder reduced, without the necessity of executing any new document, so
as to comply with the applicable law, but also so as to permit the recovery of the fullest amount
otherwise called for hereunder. It is further agreed that without limitation of the foregoing, all
calculations of the rate of interest contracted for, charged, taken, reserved or received under
this Note which are made for the purpose of determining whether such rate exceeds the maximum
lawful rate of interest, shall be made, to the extent permitted by applicable usury laws, by
amortizing, prorating, allocating and spreading during the period of the full term of the Note, all
interest at any time contracted for, charged, taken, reserved or received from the party obligated
thereon or otherwise by the holder or holders thereof in connection with the Note so that the rate
or amount of interest on account of such indebtedness does not exceed the usury ceiling from time
to time in effect and applicable to such debt




          9. Governing Law. This Note shall be governed by, construed and enforced in
accordance with, the laws of the State of Texas and applicable laws of the United States of
America.




          10. Miscellaneous. All references to the Company herein shall include its
successors and assigns, and all covenants, stipulations, promises and agreements contained herein
by or on behalf of the Company shall be binding upon its successors and assigns, whether so




3









 







expressed or not and shall inure to the benefit of and be enforceable by the successors and
assigns of any other holder hereof.




          11. Security. This Note is an unsecured obligation of the Company.




          12. Invalid Provisions. Any provision in this Note held to be illegal, invalid or
unenforceable is fully severable; this Note shall be construed and enforced as if that provision
had never been included; and the remaining provisions shall remain in full force and effect and
shall not be affected by the severed provision. The Company agrees to negotiate with the holder
hereof, in good faith, the terms of a replacement provision as similar to the severed provision
as may be possible and be legal, valid and enforceable. However, if the provision held to be
illegal, invalid or unenforceable is a material part of this Note, such invalid, illegal or
unenforceable provision shall be, to the extent permitted by applicable law, replaced by a clause
or provision judicially construed and interpreted to be as similar in substance and content to
the original terms of such illegal, invalid or unenforceable clause or provision as the context
thereof would reasonably allow, so that such clause or provision would thereafter be legal, valid
and enforceable.




          13. Course of Dealing. The acceptance by Payee or any subsequent holder of this Note
of any partial payment on the Note shall not be deemed to be a waiver of any default then
existing. No waiver by Payee or any subsequent holder of this Note of any default shall be deemed
to be a waiver of any other then-existing or subsequent default. No delay or omission by Payee or
any subsequent holder of this Note in exercising any right, remedy, power, privilege or benefit
hereunder will impair that right, remedy, power, privilege or benefit or be construed as a waiver
thereof or any acquiescence therein, nor will any single or partial exercise of any right,
remedy, power, privilege or benefit preclude other or further exercise thereof or the exercise of
any other right, remedy, power, privilege or benefit under this Note or otherwise.




          14. Venue: Service of Process: Jury Trial. THE COMPANY, ITS SUCCESSORS
AND ASSIGNS (a) IRREVOCABLY SUBMITS TO THE NONEXCLUSIVE JURISDICTION OF THE STATE AND FEDERAL
COURTS OF THE STATE OF TEXAS, (b) IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY
OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY LITIGATION ARISING OUT
OF OR IN CONNECTION WITH THIS NOTE BROUGHT IN DISTRICT COURTS OF DALLAS OR HARRIS COUNTY, TEXAS,
OR IN THE U.S. DISTRICT COURT FOR THE NORTHERN OR SOUTHERN DISTRICT OF TEXAS, DALLAS OR HOUSTON
DIVISION, (c) IRREVOCABLY WAIVES ANY CLAIMS THAT ANY LITIGATION BROUGHT IN ANY OF THE
AFOREMENTIONED COURTS HAS BEEN BROUGHT IN AN INCONVENIENT FORUM, (d) IRREVOCABLY CONSENTS TO
THE SERVICE OF PROCESS OUT OF ANY OF THOSE COURTS IN ANY LITIGATION BY THE MAILING OF COPIES
THEREOF BY CERTIFIED MAIL, RETURN RECEIPT REQUESTED, POSTAGE PREPAID, BY HAND-DELIVERY, OR BY
DELIVERY BY A NATIONALLY RECOGNIZED COURIER SERVICE, AND SERVICE SHALL BE DEEMED COMPLETE UPON
DELIVERY OF THE







4









 







LEGAL PROCESS AT ITS PRINCIPAL EXECUTIVE OFFICE, (e) IRREVOCABLY AGREES THAT ANY LEGAL PROCEEDING
AGAINST ANY PARTY TO ANY LOAN DOCUMENT ARISING OUT OF OR IN CONNECTION WITH THIS NOTE MAY BE
BROUGHT IN ONE OF THE AFOREMENTIONED COURTS, AND (f) IRREVOCABLY WAIVES TO THE FULLEST EXTENT
PERMITTED BY LAW, ITS RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON
OR ARISING OUT OF THIS NOTE. The scope of each of the foregoing waivers is intended to be
all-encompassing of any and all disputes that may be filed in any court and that relate to the
subject matter of this transaction, including, without limitation, contract claims, tort claims,
breach of duty claims, and all other common law and statutory claims. The Company acknowledges
that these waivers are a material inducement to Payee’s agreement to engage in the transaction
contemplated hereby, and that Payee and each subsequent holder of this Note will continue to rely
on each of these waivers. The Company further warrants and represents that it has reviewed these
waivers with its legal counsel, and that it knowingly and voluntarily agrees to each waiver
following consultation with legal counsel. THE WAIVERS IN THIS SECTION 14 ARE IRREVOCABLE, MEANING
THAT THEY MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING, AND THESE WAIVERS SHALL APPLY — TO ANY
SUBSEQUENT AMENDMENTS, SUPPLEMENTS, OR REPLACEMENTS TO THIS NOTE. In the event of Litigation, this
Note may be filed as a written consent to a trial by the court.




          15. FINAL AGREEMENT. THIS NOTE (AS MODIFIED IN WRITING
FROM TIME TO TIME) REPRESENTS THE FINAL AGREEMENT AMONG THE COMPANY AND PAYEE AND MAY NOT BE
CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS BY THE
PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS AMONG THE PARTIES.




     IN WITNESS WHEREOF, the Company has caused this Note to be executed in its corporate name
and in its behalf.



	 	 	 	 	 
	 	NCI HOLDING CORP.

 	 
	 	By:  	/s/ Robert J. Medlock
 	 
	 	 	Robert J. Medlock, Vice President 	 
	 	 	 	 



5









 






	 	 	 	 	 



ALLONGE





     THIS ENDORSEMENT IS TO BE ATTACHED TO AND MADE A PART OF THAT CERTAIN PROMISSORY
NOTE dated May 5,1998 made by NCI Holding Corp., a Delaware corporation, to NCI Building
Systems, Inc., a Delaware corporation, the original payee, in the original principal
amount of FIVE HUNDRED FIFTY MILLION AND NO/100 DOLLARS ($550,000,000) (the “Note”). Such
Note is hereby transferred pursuant to the following endorsement with the same force and
effect as if such endorsement were set forth at the end of such Note:



     PAY TO THE ORDER OF: Wachovia Bank, National Association, as Administrative Agent,
Charlotte Plaza, 201 South College Street, CP-8, Charlotte, North Carolina, 28288-0680:
Attention, Syndication Agency Services.



	 	 	 	 	 
	 	NCI BUILDING SYSTEMS, INC.,

a Delaware corporation

 	 
	 	By:  	/s/ Robert J. Medlock
 	 
	 	 	Robert J. Medlock, Executive Vice 	 
	 	 	President and Chief Financial Officer 	 
	 


     This Allonge shall be attached to the Note described above and is hereby made a part thereof.





 











 










(214) 999-3000




June 18, 2004




Each of the Lenders party to the

Credit Agreement defined below,




and




Wachovia Bank, National Association, as

Administrative Agent under the Credit

Agreement defined below




c/o Wachovia Bank, National Association

One Wachovia Center, DC-5 Charlotte,

North Carolina 28288-0735

Attention: Glenn Edwards




Ladies and Gentlemen:




     We have acted as counsel for NCI Building Systems, Inc., a Delaware corporation (the
“Borrower”), in connection with that certain Credit Agreement, dated as of the date hereof (the
“Credit Agreement”), by and among the Borrower, the Partnerships (hereinafter defined), the
Companies (hereinafter defined), Wachovia Bank, National Association, a national banking
association, as Administrative Agent for the Lenders thereunder (in such capacity, the
“Administrative Agent”), Bank of America, N.A., as Syndication Agent, and the Lenders party to the
Credit Agreement (collectively, the “Lenders”), and in connection with the execution and delivery
by the Borrower of the Credit Documents (hereinafter defined) to which it is a party.



     In addition, we have acted as counsel for (i) NCI Building Systems, L.P., A&S Building
Systems, L.P., Metal Building Components, L.P. and NCI Group, L.P., each a Texas limited
partnership and each a wholly-owned indirect subsidiary of Borrower (collectively, the
“Partnerships”), (ii) NCI Operating Corp., a Nevada corporation and a wholly-owned subsidiary of
the Borrower and the sole general partner of the Partnerships (“Operating”), (iii) NCI Holding
Corp., a Delaware corporation and a wholly-owned subsidiary of the Borrower and the sole limited
partner of the Partnerships (“Holding”), and (iv) Metal Coaters of California, Inc., a Texas
corporation and indirect wholly-owned subsidiary of the Borrower
(“MCCI” and, together with
Operating and Holding, the “Companies;” the Companies, together with the Partnerships and the
Borrower, the “Credit Parties”), in connection with the Credit Agreement, and in connection with
the execution and delivery by each of the Partnerships and each of the



GARDERE WYNNE SEWELL LLP




3000
Thanksgiving Tower, 1601 Elm Street, Dallas. Texas 75201-4761 • 214.999.3000 Phone • 214.999.4667 Fax

Austin • Dallas • Houston • Mexico City • Washington, DC




 









 





Wachovia Bank, National
Association 
June 18, 2004

Page 2



Companies of the Credit Documents (hereinafter defined) to which each respective Partnership and
each respective Company is a party.




     Capitalized terms that are defined in the credit Agreement and not otherwise defined herein shall
have the meanings assigned to them in the Credit Agreement. This opinion letter is delivered to you
pursuant to Section 4.1(c) of the Credit Agreement.



     We have participated in the preparation of the Credit Agreement and the other Credit
Documents (hereinafter defined), and, in connection with rendering the opinions expressed below,
we have examined the following:




     (a) an executed counterpart of the Credit Agreement;




     (b) the originals of the following-described Revolving Loan Notes
(collectively, the “Revolving Loan Notes”):




     (i) Revolving Note dated as of June 18, 2004, executed by the Borrower and
payable to the order of Wachovia Bank, National Association;




     (ii) Revolving Note dated as of June 18, 2004, executed by the Borrower and
payable to the order of Allied Irish Banks, P.L.C.;




     (iii) Revolving Note dated as of June 18, 2004, executed by the Borrower and
payable to the order of Bank of America, N.A.;




     (iv) Revolving Note dated as of June 18, 2004, executed by the borrower and
payable to the order of BNP Paribas;




     (v) Revolving Note dated as of June 18, 2004, executed by the Borrower and
payable to the order of Credit Industriel et Commercial;




     (vi) Revolving Note dated as of June 18, 2004, executed by the Borrower and
payable to the order of Cooperative Centrale Raiffeisen-Boerenleenbank B.V.;




     (vii) Revolving Note dated as of June 18, 2004, executed by the Borrower and
payable to the order of General Electric Capital Corporation;




     (viii) Revolving Note dated as of June 18, 2004, executed by the Borrower and
payable to the order of Guaranty Bank;




     (ix) Revolving Note dated as of June 18, 2004, executed by the Borrower and
payable to the order of National City Bank;




     (x) Revolving Note dated as of June 18, 2004, executed by the
Borrower and payable to the order of Southwest Bank of Texas, 

N.A.; and







 









 








Wachovia Bank, National Association

June 18, 2004

Page 3





     (xi) Revolving Note dated as of June 18, 2004, executed by the Borrower and
payable to the order of Washington Mutual Bank;




     (c) the original of the Swing Line Note, dated as of the date hereof, executed by
Borrower and payable to the order of Wachovia Bank, National Association, in the stated
principal amount of $10,000,000 (the “Swing Line Note,” and, collectively with the
Revolving Loan Notes, the “Notes”);




     (d) an executed counterpart of the Security Agreement, dated as of the date hereof,
between the Credit Parties and the Administrative Agent;




     (e) an executed counterpart of the Pledge Agreement, dated as of the date hereof,
between the Credit Parties and the Administrative Agent;




     (f) the originals of the following-described stock powers:




     (i) Irrevocable Stock Power executed by the Borrower relative to 1,000 shares
of the capital stock of Operating, as evidenced by Certificate No. 002;




     (ii) Irrevocable Stock Power executed by the Borrower relative to 1,000 shares
of the capital stock of Holding, as evidenced by Certificate No. 002; and




     (iii) Irrevocable Stock Power executed by Holding relative to 10,000 shares of
the capital stock of MCCI, as evidenced by Certificate No. 4;




     (g) an executed counterpart of the Notice of Grant of Security Interest in Patents
executed by NCI Building Systems, L.P. (the “Patent Notice”);




     (h) executed counterparts of the following described Notice of Grant of Security
Interest in Trademarks (collectively, the Trademark Notices”):




     (i) Notice of Grant of Security Interest in Trademarks executed by NCI
Building Systems, L.P.;




     (ii) Notice of Grant of Security Interest in Trademarks executed by A&S
Building Systems, L.P.;




     (iii) Notice of Grant of Security Interest in Trademarks executed by NCI Group,
L.P.; and




     (iv) Notice of Grant of Security Interest in Trademarks executed by Metal
Building Components, L.P.;



 









 





Wachovia Bank, National Association

June 18, 2004

Page 4





     (i) an executed counterpart of the Notice of Grant of Security Interest in
Copyrights executed by Metal Building Components, L.P. (the
“Copyright Notice,” and,
together with the Patent Notice and the Trademark Notices, the “IP Notices”);




     (j) the Secretary’s Certificate of each of the Credit Parties, each dated as of the date
hereof and delivered to the Administrative Agent pursuant to Section 4.1(b) of
the Credit Agreement; and




     (k) the Solvency Certificate of the Borrower, dated as of the date hereof and
delivered to the Administrative Agent pursuant to Section 4.1(h) of the Credit Agreement.



     The documents referenced in clauses (a) through (k) above are herein referred to collectively as
the “Credit Documents.” In addition, we have also reviewed (i) a copy of each of the UCC Financing
Statements on Form UCC-1 authenticated and delivered effective as of the  date hereof pursuant
to Section 4.1(d)(ii) of the Credit Agreement by each of the Credit Parties that is to be
filed pursuant to the UCC in the Uniform Commercial Code Records maintained (a) in the office
of the Secretary of State of the State of Texas (the “Texas Central Filing Office”), (b) in the
office of the Secretary of State of Delaware (the “Delaware Central Filing Office”) or (c) in the
office of the Secretary of State of Nevada (the “Nevada Central Filing Office”), in each case as
indicated thereon (collectively, the “Central Financing Statements”), and (ii) a copy of each of
the UCC Financing Statements on Form UCC-1 to which reference is made in Schedule I hereto,
authenticated and delivered effective as of the date hereof pursuant
to Section  4.1(d)(ii)
of the Credit Agreement by each of the Credit Parties referenced in
the column captioned “Debtor” in
Schedule I attached hereto that is to be filed for record or
recorded in  the  Real Estate Records
appropriate for the real property located in the county and state
referenced in Exhibit A attached
thereto, in each case as indicated thereon and in the columns captioned “County” and “State” in
Schedule I attached hereto (collectively, the “Fixture Financing Statements,” with the Fixture
Financing Statements relating to real property situated in the State of Texas being herein called
the “Texas Fixture Financing Statement”). For purposes of the opinions expressed in Paragraph
10(a) below, the Borrower and Holding are collectively referred to as the “Delaware Entities,”
Operating is referred to as the “Nevada Entity,” and MCCI and the Partnerships are collectively
referred to as the “Texas Entities.”



     In connection with rendering the opinions expressed below, we have examined and relied upon
certificates of public officials, certificates of Responsible
Officers of the Borrower, the
Partnerships and the Companies, and originals (or copies authenticated to our satisfaction) of
other corporate and partnership records, agreements, instruments and documents as we have deemed
necessary or appropriate for purposes of this opinion letter. We have also made such other
examinations and inquiries (subject to the description of the specific level of examination and
inquiry described below) as we have deemed necessary and/or appropriate as the basis for the
opinions expressed herein. For purposes of the opinions expressed
below, we have assumed that all
natural persons executing the Credit Documents have legal capacity to
do so; that all signatures
(other than those of representatives of the Credit Parties on the Credit Documents) on all
documents submitted to us are genuine; that all documents submitted to us as originals (other



 









 





Wachovia Bank, National Association

June 18, 2004

Page 5



than the Credit Documents) are authentic; and that all documents submitted to us as certified
copies or photocopies conform to the originals of such documents, which themselves are authentic.
As to various questions of fact material to our opinion, we have relied upon, and assumed the
accuracy of, representations made by the Credit Parties in the Credit Documents and made to us by
Responsible Officers of the Credit Parties in certificates and other documents furnished to us by
the Credit Parties, and we have not made any investigation as to the accuracy of the information
obtained thereby. No facts, however, have come to our attention that lead us to believe that the
information contained in those documents or certificates is inaccurate.




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




     1. Each of the Borrower and Holding is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware. Operating is a corporation
duly organized, validly existing and in good standing under the laws of the State of
Nevada. Each of the Partnerships is a limited partnership duly formed and validly existing
under the laws of the State of Texas. MCCI is a corporation duly organized, validly
existing and in good standing under the laws of the State of Texas. Each of the Borrower,
the Companies and the Partnerships has been duly qualified as a foreign corporation or
limited partnership, as appropriate, for the transaction of business in, and, with respect
to the Borrower and each of the Companies, is in good standing under the laws of, each of
the states listed opposite its name on Schedule I hereto.




     2. Each of the Borrower, the Partnerships and the Companies has the requisite
corporate or partnership power and authority, as appropriate, and all requisite
governmental licenses, authorizations, consents and approvals to (i) own its assets and
carry on its business in the manner as contemplated under the Credit Documents and as now
conducted, except to the extent that failure to do so could not reasonably be expected to
have a Material Adverse Effect, and (ii) execute, deliver and perform its Obligations under
each of the Credit Documents to which it is a party. Each of the Borrower, the Partnerships
and the Companies has taken or caused to be taken all necessary partnership and/or
corporate action, as appropriate, to authorize the execution, delivery and performance of
each of the Credit Documents to which it is a party and to authorize the authentication and
delivery of each of the Central Financing Statements in which it is named as “debtor” and
each of the Fixture Financing Statements in which it is named as “debtor.”




     3. No consent or authorization of, filing with, notice to or other similar act by or in
respect of, any judicial or any Governmental Authority or any other Person is required to be
obtained or made by or on behalf of any of the Credit Parties on or prior to the date hereof
in connection with the execution, delivery or performance of the Credit Documents, except
for such consents, approvals, authorizations or other actions as have been obtained or made
or those with respect to which the Borrower has reasonably concluded that the failure to
obtain could not reasonably be expected to have a Material Adverse Effect (other than the
filings of the IP Notices, the Central Financing Statements and the Fixture Financing
Statements with the appropriate Governmental Authorities







 









 








Wachovia Bank, National Association

June 18, 2004

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required pursuant to applicable law to evidence or effect Liens on the Collateral described
therein, or the perfection thereof).




     4. As to each Credit Party, the Credit Agreement and each of the other Credit
Documents to which it is a party, have been duly executed and delivered by such Credit
Party and constitute the legal, valid and binding obligations of such
Credit Party,
enforceable against such Credit Party in accordance with their respective terms.




     5. The execution, delivery and performance by each of the Credit Parties of the Credit
Agreement and the other Credit Documents to which it is a party, the borrowings thereunder
and the use of the proceeds thereof will not (a) violate the Restated Certificate of
Incorporation, as amended, or the Amended and Restated By-Laws of the Borrower, the
Certificate of Limited Partnership or the Limited Partnership Agreement of any of the
Partnerships, the Certificate of Incorporation or the By-Laws of Holding, or the Articles of
Incorporation or the Bylaws of Operating or of MCCI, (b) result in any breach or violation
of (i) any law, treaty, rule, regulation, (ii) any order, injunction, writ or decree of any
Governmental Authority or determination or any arbitral award known to us and to which any
of the Credit Parties, or the property of any Credit Party, is subject, or (iii) any of the
Material Contracts set forth on Schedule III attached hereto, or (b) result in the creation or
imposition of any Lien of any nature whatsoever upon any of the properties or assets of any
Credit Party other than Permitted Liens.




     6. To our knowledge after due inquiry, no litigation, investigation or proceeding of
or before any arbitrator or Governmental Authority is pending or threatened by or against
any of the Credit Parties or against any of their properties or revenues with respect to
the Credit Documents or any Extension of Credit or any of the transactions contemplated
hereby.




     7. Each of Operating and Holding is authorized to issue 1,000 shares of common stock,
S1.00 par value, of which 1,000 shares of each of Operating and Holding are issued and
outstanding, are fully paid and nonassessable and are owned of record by Borrower. MCCI is
authorized to issue 500,000 snares of common stock, $0.10 par value, of which 10,000 shares
are issued and outstanding, are fully paid and nonassessable and are owned of record by
Holding. To our knowledge after due inquiry and a review of the Credit Parties’ books and
records, there are no outstanding options, subscriptions, warrants, calls, rights,
commitments or agreements by which any of the Companies is bound calling for the issuance
of shares of any class of its capital stock or for the issuance of any securities
convertible or exchangeable, actually or contingently, into shares of capital stock.




     8.
The Pledge Agreement creates in favor of the Administrative Agent,
for the benefit
of the Lenders, a valid security interest, securing the Obligations, in all of the
respective Credit Parties’ right, title and interest to the Pledged Collateral, including
the







 









 








Wachovia Bank, National Association

June 18, 2004

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following-described shares of the common stock of Operating, Holding and MCCI included
within the Pledged Capital Stock:




     (a) the 1,000 shares of common stock, $1.00 par value, of Operating registered
in the name of the Borrower and evidenced by Certificate No. 001;




     (b) the 1,000 shares of common stock, $1.00 par value, of Holding registered
in the name of the Borrower and evidenced by Certificate No. 001; and




     (c) the 10,000 shares of common stock, $0.10 par value, of MCCI registered in
the name of Holding and evidenced by Certificate No. 3.




Upon the delivery to the Administrative Agent of the certificates representing the Pledged
Capital Stock (the “Pledged Certificates”), together with related unrestricted stock powers
executed in blank by the respective registered owners of the Pledged Capital Stock, the
Administrative Agent will have, for so long as possession of the Pledged Certificates is
maintained by the Administrative Agent, a perfected security interest in the shares of
Pledged Capital Stock evidenced by the Pledged Certificates, and, assuming that the
Administrative Agent does not have notice of any adverse claim with respect to any of the
shares of Pledged Capital Stock evidenced by the Pledged Certificates, prior to any adverse
claim (within the meaning of Chapter 8 of the Uniform Commercial
Code as in effect in the
State of Texas (the “UCC”)) of any Person to the shares of Pledged Capital Stock evidenced
by the Pledged Certificates, as security for the Obligations.




     9. The execution of the Pledge Agreement by the Credit Parties, together with (a) the
filing of a financing statement with respect to any uncertificated Pledged Capital Stock as
contemplated by paragraph 10 below or (b) with respect to any Pledged Capital Stock
consisting of Security Entitlements (as defined in the Pledge Agreement), the execution and
delivery of a control agreement among the Securities Intermediary (as
defined in the Pledge
Agreement) with respect to such Security Entitlements, the applicable Credit Party and the
Administrative Agent, pursuant to which the Administrative Agent is granted “Control” (as
defined in the UCC) over such Security Entitlements, is sufficient to create in favor of
the Administrative Agent, for the benefit of the Lenders, a valid security interest in all
right, title and interest of the Credit Parties who are pledgors thereunder in the Pledged
Capital Stock under Articles 8 and 9 of the UCC.




     10. The Security Agreement creates in favor of the Administrative Agent, for the
benefit of the Lenders, a valid security interest, securing the Obligations, in all of the
respective Credit Parties’ right, tide and interest to the Collateral. With respect to
such security interest:




     (a) The filing of the respective Central Financing Statements in the Texas
Central Filing Office, with respect to the Texas Entities, in the Delaware Central
Filing Office, with respect to the Delaware Entities, and in the Nevada







 









 








Wachovia Bank, National Association

June 18, 2004

Page 8





Central Filing Office, with respect to the Nevada Entity, will result in the
perfection of the Administrative Agent’s security interest in the entire right,
title, and interest of Credit Party named therein as “debtor” in and to all
Collateral (exclusive of fixtures, as defined in the UCC) that is described therein
and in the Security Agreement and in which a security interest may be perfected by
the filing of a UCC Financing Statement under Chapter 9 of the UCC in the Texas
Central Filing Office, with respect to the Texas Entities, in the Delaware Central
Filing Office, with respect to the Delaware Entities, and in the Nevada Central
Filing Office, with respect to the Nevada Entity (the “Central Filing Collateral”),
and are the only actions, recordings or filings necessary under the UCC to perfect
the security interest created by the Security Agreement in the Central Filing
Collateral encumbered thereby, except (a) the filing in the Texas Central Filing
Office, with respect to the Texas Entities, in the Delaware Central Filing Office,
with respect to the Delaware Entities, or in the Nevada Central Filing Office, with
respect to the Nevada Entity, as the case may be, of a UCC Financing Statement
Amendment-Continuation on Form UCC-3 relating to each Central Financing Statement
will be required not more than six months prior to the expiration of a five-year
period dating from the date of filing of each such Central Financing Statement (or
otherwise within the time permitted by Section 9.515 of the applicable Uniform
Commercial Code), and subsequent continuation statements must be filed within six
months prior to the end of each subsequent five-year period in order to maintain
perfection of the filings referenced in this Paragraph 10(a), and (b) appropriate
amendments or supplements to the Central Financing Statements and/or additional UCC
Financing Statements as may be required to be filed as to a Credit Party in the
event of a change in the name of such Credit Party which renders the applicable
Central Financing Statement seriously misleading, in the event of a change in the
jurisdiction of organization of such Credit Party, or in the event that the Central
Financing Statement filed with respect to such Credit Party otherwise becomes
seriously misleading under Section 9.506 of the UCC; and




     (b) The filing of each Texas Fixture Financing Statement in the real estate
records maintained in the office of the County Clerk of the county of the State of
Texas in which the real property described in Exhibit A to such Texas Fixture
Financing Statement is located will result in the perfection of the Administrative
Agent’s security interest in the entire right, title, and interest of Credit Party
named therein as “debtor” in and to all Fixtures attached or affixed to such real
property, and is the only action, recording or filing necessary under the UCC to
perfect the security interest created by the Security Agreement in the right,
title, and interest of Credit Party named therein as “debtor” in and to the
Fixtures attached or affixed to such real property, except (a) the filing in the
real estate records maintained in the office of the County Clerk of the county of
the State of Texas in which the real property described in Exhibit A to such Texas
Fixture Financing Statement is located of a UCC Financing Statement







 









 








Wachovia Bank, National Association

June 18, 2004

Page 9





Amendment—Continuation on Form UCC-3 relating to such Texas Fixture Financing
Statement will be required not more than six months prior to the expiration of a
five-year period dating from the date of filing of such Texas Fixture Financing
Statement (or otherwise within the time permitted by Section 9.515 of the UCC), and
subsequent continuation statements must be filed within six months prior to the end
of each subsequent five-year period in order to maintain perfection of the filings
referenced in this Paragraph 10(b), and (b) appropriate amendments or supplements
to such Texas Fixture Financing Statement and/or additional UCC Financing
Statements as may be required to be filed as to the Credit Party named therein as
“debtor” in the event of a change in the name of such Credit Party which renders
such Texas Fixture Financing Statement seriously misleading, or in the event that
the Central Financing Statement filed with respect to such Credit Party otherwise
becomes seriously misleading under Section 9.506 of the UCC.




     11. Upon the proper and timely filing and recording of (i) the Patent Notice with the
United States Patent and Trademark Office, (ii) the Trademark Notices with the United
States Patent and Trademark Office and (iii) the Copyright Notice with the United States
Copyright Office, the Administrative Agent’s security interest, for the benefit of the
Lenders, in the right, title and interest of the applicable Credit Party party thereto in
the patents and trademarks described therein will be perfected under applicable Federal
law.




     12. The making of Loans and other Extensions of Credit will not violate Regulation T,
U or X issued by the Board of Governors of the Federal Reserve System.




     13. No Credit Party is an “investment company” or a company “controlled” by an
“investment company” within the meaning of the Investment Company Act of 1940, as amended,
or a “holding company,” or a “subsidiary company” of a “holding company,” or an “affiliate”
of a “holding company” or of a “subsidiary company,” within the meaning of the Public
Utility Holding Company Act of 1935, as amended.




     14. The Credit Party Obligations constitute “Senior Indebtedness” and “Designated
Senior Debt” under and as defined in that certain Indenture, dated as of May 5, 1999, by
and between the Borrower and The Bank of New York (as successor in interest to Harris Trust
Company of New York) and pursuant to which the Senior Subordinated Notes were issued.



     This opinion is subject to the following assumptions, exceptions and limitations:



     (A) We have assumed that all parties (if any) to the Credit Documents, other than the Credit
Parties, are duly organized, validly existing and in good standing under the laws of their
respective jurisdictions of organization and have the requisite power to enter into such Credit
Documents, that each of the Credit Documents have been duly authorized, executed and delivered by
or on behalf of all parties thereto (if any) other than the Credit Parties, and that each



 









 








Wachovia Bank, National Association

June 18, 2004

Page 10



of the Credit Documents is legally binding upon, and enforceable against, all parties thereto (if
any) other than the Credit Parties.




     (B) The opinions expressed above are qualified to the extent that the validity or
enforceability of each of the Credit Documents and the respective obligations of the respective
Credit Parties referenced therein may be subject to or limited by (a) any applicable bankruptcy
insolvency, fraudulent transfer, fraudulent conveyance, reorganization, moratorium or other
similar laws, now or hereafter in effect, relating to creditors’
rights generally, (b) the
unavailability of the remedies of specific performance, injunction or other forms of remedial or
equitable provisions or relief, that are subject to the discretion of the court before which any
proceeding therefor may be brought, (c) general principles of
equity including, but not limited to,
concepts of materiality, reasonableness, good faith and fair dealing, regardless of whether
considered in a proceeding in equity or at law, (d) limitations of rights to indemnification as a
matter of public policy, and (e) any limitations imposed by or by reason of the laws of any
jurisdiction (other than the State of Texas) governing the Credit Documents and the transactions
contemplated thereby. In addition, the enforceability of certain rights, remedies and waivers
contained in  the Credit Documents may be limited or rendered ineffective by applicable federal or
state constitutional requirements or applicable federal, state or local laws, regulations or
judicial decisions governing such provisions, but, in our opinion, such requirements, laws and
judicial decisions do not render any of the Credit Documents invalid or unenforceable as a whole
and should not materially interfere with the practical realization of the primary legal benefits
purported to be conferred by the Credit Documents (with no opinion expressed as to the economic
consequences of any judicial, administrative or other procedural delay that may be imposed by,
relate to, or result form such constitutional requirements, laws, regulations or court decisions).



     (C) We express no opinion as to the validity, binding nature, or enforceability of provisions
m the Credit Documents (i) purporting to establish evidentiary
standards (ii) purporting to confer
or restrict equitable remedies, (iii) purporting to preserve the liability of any person or entity
when the underlying obligation is unenforceable, (iv) relating to indemnification, exculpation or
release of any party with respect to such party’s gross negligence or wrongful acts or as against
damages owing to any other party against whom such indemnification, exculpation or release is
asserted by such party, (v) purporting to dictate rights to
attorneys’ fees and other costs to the
extent otherwise subject to the discretion of a court or arbitrator, (vi) purporting to restrict
access to courts, to specify exclusive personal or subject matter
jurisdiction or venue, or
immunity from personal or subject matter jurisdiction or venue, or to otherwise affect the
jurisdiction or venue of courts, (vii) purporting to waive notices, legal defenses, statutes of
limitation, service of process, right to trial by jury or other benefits based solely on the
provisions of the Credit Documents, (viii) purporting to specify methods of service of process
inconsistent with methods provided by applicable law, (ix) purporting to entitle the
Administrative Agent or its representative to vote the Pledged Capital Stock without the transfer
of the Pledged Capital Stock into the name of the Administrative Agent or its representative or
nominee, (x) purporting to establish reasonableness of notices, or (xi) purporting to mandate any
modification of or any substitute provision in lieu of, any provision of any of the Credit







 









 








Wachovia Bank, National Association

June 18, 2004

Page 11



Documents that is determined to be illegal, invalid or unenforceable, or any agreement of any
Credit Party with respect thereto.




     (D) The opinions expressed in Paragraph 1 above regarding the existence, qualification and
good standing of the Borrower, the Partnerships and the Companies are rendered solely on the basis
of certificates of the appropriate governmental authorities of the states specified or to which
reference is made therein.



     (E) Except as referenced, and as limited, in Paragraph (B) above and in this Paragraph (E),
the opinions expressed in this opinion letter are limited to the Laws of the State of Texas and
the federal Laws of the United States of America, and we assume no responsibility as to the
applicability or the effect of any other laws. To the extent that any Credit Document is governed
by the laws of the State of North Carolina, we have assumed, with your permission, that the laws
of the State of North Carolina are identical to those of the Sate of Texas. No opinion is
expressed herein with respect to any Laws of any county, city or other political subdivision of
the State of Texas. The opinions expressed in Paragraphs 1 (other than those referred to in
Paragraph (B) above) and 2 above, except as such opinions relate to matters of Texas law (and in
other Paragraphs of this opinion letter to the extent they include or comprehend the matters as to
which our opinions are expressed in such Paragraphs 1 and 2 above, except as such opinions relate
to matters of Texas law), are based solely on our review of the Delaware General Corporation Law
and the Nevada General Corporation Law, each as published in the current edition of the Aspen Law
Business, a Division of Aspen Publishers, Inc. (successor publisher to Prentice-Hall Law &
Business) compilation entitled Corporation Statutes (the “Corporate Statutes”). The
opinions expressed in Paragraphs 9 and 10 above, except as such opinions relate to matters of
Texas law, are based solely on a review of the Official Text of the Uniform Commercial Code, and
the Delaware and Nevada variations thereof, as published in the volume styled “Local Code
Variations” in the current edition of Hawkland, Uniform Commercial Code Series (West Group 2001).
We have not reviewed any other Laws of the State of Delaware or of the State of Nevada (or any
interpretations of either of the Corporate Statutes or of the Uniform Commercial Code as in effect
in Delaware or Nevada), or retained or relied on any opinion or advice of Delaware counsel or
Nevada counsel. Such opinions are limited to the applications of the Corporate Statutes and the
Uniform Commercial Code, as such Corporate Statutes and the Uniform Commercial Code would be
interpreted and applied under Texas law (excluding conflicts of laws principles thereunder).



     (F) With respect to the opinion expressed in Paragraph 6 above, we have not conducted any
search of any indexes, dockets or other records of any federal, state or local court,
administrative agency or body or of any arbitrator and no opinion is expressed herein with respect
to any code, ordinance, rule or regulation of any county, city, locality or other political
subdivision of the State of Texas.



     (G) Except with respect to the Pledged Capital Stock, as expressly set forth in the opinions
expressed in Paragraphs 7, 8 and 9 above, we have made no examination of, and we express no opinion
as to, title to any of the Collateral or to any of the real property described or to which
reference is made in Exhibit A to any of the Fixture Financing Statements or whether



 









 





Wachovia Bank, National Association

June 18, 2004

Page 12



there are of record any Liens encumbering any of the Collateral or any or the real property
described or to which reference is made in Exhibit A to any of the Fixture Financing Statements;
except as expressly set forth in the opinions expressed in Paragraphs 8 and 10 above, we express
no opinion with respect to the perfection of any of the Liens created or purported to be created
or granted by any of the Credit Documents; and, except as expressly set forth in Paragraph 8
above, we express no opinion with respect to the priority of any of the Liens created or purported
to be created or granted by any of the Credit Documents. In rendering the opinion expressed in
Paragraph 10(b) above, we have assumed that the name of the record owner of the real property
described or to which reference is made in Exhibit A to each Fixture Financing Statement is set
forth in the UCC Financing Statement Addendum included within such Fixture Financing Statement,
or, if none is set forth, that the Credit Party named as “debtor” in such Fixture Financing
Statement has an interest of record in such real property.




     (H) Insofar as any of the opinions herein expressed concern the perfection of a security
interest in “proceeds” (as such term is defined in the UCC), please be advised that such security
interest in such proceeds may cease to be perfected unless compliance is made with the provisions
of Section 9.315 of the UCC governing the continuation of such perfection. Depending upon the
circumstances at the time of such receipt, additional action may then be required to continue such
perfection. In the case of collateral consisting of non-identifiable cash proceeds, continuation
or perfection of the security interests therein is limited to the extent set forth in Section
9.315 of the UCC.



     (I) In the case of any Collateral not in existence or in which a debtor does not have rights
on the date hereof, the security interests therein will not attach until such debtor has rights
in such collateral within the meaning of Section 9.203 of the UCC and at least one of the
conditions set forth in Section 9.203(b) of the UCC is met.



     (J) In the case of property which becomes Collateral after the date hereof, Section 552 of
the United States Bankruptcy Code limits the extent to which property acquired by a debtor after
the commencement of a case under the United States Bankruptcy Code may be subject to a security
interest arising from a security agreement entered into by the debtor before the
commencement of the case.



     (K) With respect to the opinions expressed in Paragraphs 12 and 13 above, we have relied, as
to underlying factual information, solely upon a certificate of a Responsible Officer of the
Borrower.



     (L) As used in the opinions expressed herein, “to our knowledge,” “known to us,” and
similar phrases refer only to the actual current knowledge or consciousness of attorneys of our
firm who are or have been involved in the representation of the Borrower, the Partnerships and
the Companies in connection with the Credit Documents, and are not based on any independent
factual investigation for the purposes of rendering the opinions expressed with such
qualifications.



 









 





Wachovia Bank, National
Association 
June 18, 2004

Page 13




     (M) To the extent any of the opinions expressed herein relate to or involve materiality, we
have relied generally upon the judgments and conclusions of Responsible Officers of the Borrower
in determining that which is or could reasonably be expected to be “material” under the
circumstances.



     (N) We have made no examination or investigation to verify the accuracy of any financial,
accounting or statistical information furnished or to be furnished to you concerning the
Borrower, the Partnerships or the Companies, and we express no opinion with respect thereto.
Further, we express no opinion as to the financial ability of the Borrower, the Partnerships or
the Companies to satisfy their obligations under the Credit Documents.



     This letter is furnished only to the Administrative Agent and the Lenders and is solely for
their benefit in connection with the transactions contemplated by the Credit Documents;
provided, however, our opinion may be relied upon by any party who becomes a
Lender under the Credit Agreement in compliance with Section 9.6(f) of the Credit Agreement.
This opinion is not to be used, circulated, quoted or otherwise relied upon by any other person
or entity or, for any other purpose, without our prior written consent.



     This opinion letter is issued as of the date hereof, and the opinions expressed herein are
rendered as of the date of this opinion letter. We undertake no obligation, and expressly
disclaim any obligation, to advise you of, or to supplement any of our opinions because of, any
changes or developments in fact or law that may hereafter come to our attention. This opinion
letter is limited to the matters expressly stated herein, and no opinion other than upon the
matters so expressly stated is implied or may be inferred.



	 	 	 	 	 
	 	Very truly yours,



GARDERE WYNNE SEWELL LLP

 	 
	 	By:  	/s/ Barry D. Dries
 	 
	 	 	Barry D. Dries, a Partner 	 
	 	 	 	 
	 







 









 








Schedule I




Fixture Financing Statements



	 	 	 	 	 	 	 
	 	 	Real
Property Covered by Fixture Financing Statement
	Debtor	 	Reference	 	County	 	State
	A&S
Building Systems, L.P.
	 	1880 Highway 116	 	Campbell	 	Tennessee
	 
	 	 	 	 	 	 
	Metal
Coaters of California, Inc.
	 	9123 Center Street	 	San Bernardino	 	California
	 
	 	 	 	 	 	 
	NCI Building
Systems, L.P.
	 	7301,7 311, 7313 Fairview	 	Harris	 	Texas
	NCI Building Systems, L.P.
	 	10943 Sam Houston Parkwayt West	 	Harris	 	Texas
	NCI Building
Systems, L.P.
	 	1509 DeWitt Avenue East	 	Coles	 	Illinois
	NCI Building
Systems, L.P.
	 	550 Industry Way	 	Merced	 	California
	NCI Building
Systems, L.P.
	 	13706 Cabezut Drive	 	Webb	 	Texas
	NCI Building
Systems, L.P.
	 	13202 Murphy Road	 	Fort Bend	 	Texas
	NCI Building
Systems, L.P.
	 	4645 Timber Ridge Roade, Suite 250	 	Douglas	 	Georgia
	NCI Building
Systems, L.P.
	 	4310 Industrial Access Road	 	Douglas	 	Georgia
	NCI Building Systems, L.P.
	 	6535 W. German Road	 	Maricopa	 	Arizona
	NCI Building
Systems, L.P.
	 	13808 Imperial Highway, Suite 250	 	Los Angeles	 	California
	NCI Building Systems, L.P.
	 	Highway 114 & 400 N. Kimball	 	Tarrant	 	Texas
	NCI Building Systems, L.P.
	 	422 Kirby Drive	 	Henderson	 	Tennessee
	NCI Building
Systems, L.P.
	 	3200 Pinewood Drive	 	Tarrant	 	Texas
	NCI Building Systems, L.P.
	 	12150 Shiloh Road	 	Dallas	 	Texas
	NCI Building Systems, L
	 	2679 Peachtree Street	 	DeKalb	 	Georgia
	NCI Building
Systems, L.P.
	 	1001 Enterprise Avenue	 	Oklahoma	 	Oklahoma
	NCI Building Systems, L.P.
	 	Able Door Manufacturing Facility	 	Harris	 	Tennessee
	NCI Building
Systems L.P.
	 	2611 Lindsay Privado Dr.	 	San Bernadino	 	California
	NCI Building Systems, L.P.
	 	125 Pequanoc Drive	 	Harrison	 	Georgia
	 
	 	 	 	 	 	 
	Metal Building Components, L.P.
	 	14031 West Hardy	 	Harris	 	Texas
	Metal Building Components, L.P.
	 	5711 FM-40	 	Lubbock	 	Texas
	Metal Building Components L.P.
	 	7000 S. Eastern Avenue	 	Oklahoma	 	Oklahoma
	Metal Building Components L.P.
	 	8677 1-10 East	 	Bexar	 	Texas
	Metal Building Components L.P.
	 	2280 Monier Avenue	 	Douglas	 	Georgia
	Metal Building Components, L.P.
	 	801 South Avenue-Colonial Heights City	 	 	 	Virginia
	Metal Building Components, L.P.
	 	1780 McCall Drive	 	Shelby	 	Indiana
	Metal Building Components, L.P.
	 	1011 Ellison Avenue	 	Douglas	 	Nebraska
	Metal Building Components L.P.
	 	309 Highway 51 North	 	DeSoto	 	Mississippi
	Metal Building Components, L.P.
	 	6168 State Route 233	 	Oneida	 	New York
	Metal Building Components L.P.
	 	1601 Rogers Road	 	Cook	 	Georgia
	Metal Building Components, L.P.
	 	660 South 91st Street	 	Maricopa	 	Arizona
	Metal Building Components, L.P.
	 	1155 West 2300 North	 	Salt Lake	 	Utah
	Metal Building Components L.P.
	 	201 Apache Drive	 	Hinds (1st Dist)	 	Nebraska
	Metal
Building Components L.P.
	 	1804 Jack McKay Boulevard	 	Ellis	 	Texas
	Metal Building Components L.P.
	 	6975 Danville Road	 	Jessamine	 	Kentucky
	Metal Building Components, L.P.
	 	4900 2nd Street NW	 	Bemalillo	 	New Mexico
	Metal Building Components, L.P.
	 	550 S. Compress	 	Donna Ana	 	New Mexico
	Metal Building Components, L.P.
	 	2001 San Juan Boulevard	 	San Juan	 	New Mexico
	Metal Building Components, L.P.
	 	515 13th Avenue East	 	Mahaska	 	Iowa
	Metal Building Components, L.P.
	 	530 North Bronson Avenue	 	Mecosta	 	Michigan
	Metal Building Components L.P.
	 	U.S. Highway 290	 	Harris	 	Texas






 









 





	 	 	 	 	 	 	 
	 	 	Real
Property Covered by Fixture Financing Statement
	Debtor	 	Reference	 	County	 	State
	Metal Building Components, L.P.
	 	12555 I-10 Ease (NCI Metal Depot)	 	Chambers	 	Texas
	Metal
Building Components, L.P.
	 	Highway 288-B (NCI Metal Depot)	 	Brazoria	 	Texas
	Metal
Building Components, L.P.
	 	550 Industry Way	 	Merced	 	California
	 
	 	 	 	 	 	 
	NCI Group., L.P.
	 	1150 Marietta Industrial Drive	 	Cobb	 	Georgia
	NCI Group., L.P.
	 	501 N. Greenwood Street	 	Harris	 	Texas
	NCI Group., L.P.
	 	1836 Dock Street	 	Shelby	 	Tennessee
	NCI Group., L.P.
	 	9051 Prisock Road	 	Hinds (1st Dist)	 	Mississippi
	NCI Group., L.P.
	 	880 Industrial Park Drive NE	 	Cobb	 	Georgia






 









 





Schedule II




	 	 	 
	COMPANY	 	JURISDICTION OF QUALIFICATION
	NCI Building Systems, Inc.

	 	Texas
	 
	NCI Operating Corp.

	 	California
	 

	 	Florida
	 

	 	Georgia
	 

	 	Illinois
	 

	 	Massachusetts
	 

	 	Michigan
	 

	 	Mississippi
	 

	 	North Dakota
	 

	 	Ohio
	 

	 	Oregon
	 

	 	South Carolina
	 

	 	Utah
	 

	 	Texas
	 

	 	Virginia
	 
	 	 
	NCI Holding Corp.

	 	None
	 
	 	 
	NCI Building Systems, L.P.

	 	Alabama
	 

	 	Arizona
	 

	 	California
	 

	 	Florida
	 

	 	Georgia
	 

	 	Illinois
	 

	 	Iowa
	 

	 	Massachusetts
	 

	 	Mississippi
	 

	 	New Mexico
	 

	 	North Carolina
	 

	 	Ohio
	 

	 	Oklahoma
	 

	 	South Carolina
	 

	 	Wisconsin
	 
	 	 
	A&S Building Systems, L.P.

	 	Florida
	 

	 	Michigan
	 

	 	South Carolina
	 

	 	Tennessee






 









 





	 	 	 
	COMPANY	 	JURISDICTION OF QUALIFICATION
	NCI Group, L.P.

	 	Alabama
	 

	 	Arizona
	 

	 	Arkansas
	 

	 	California
	 

	 	Colorado
	 

	 	Florida
	 

	 	Georgia
	 

	 	Idaho
	 

	 	Illinois
	 

	 	Indiana
	 

	 	Iowa
	 

	 	Kansas
	 

	 	Kentucky
	 

	 	Louisiana
	 

	 	Massachusetts
	 

	 	Michigan
	 

	 	Minnesota
	 

	 	Mississippi
	 

	 	Missouri
	 

	 	Nebraska
	 

	 	Nevada
	 

	 	New Jersey
	 

	 	New Mexico
	 

	 	New York
	 

	 	North Carolina
	 

	 	Ohio
	 

	 	Oklahoma
	 

	 	Oregon
	 

	 	Pennsylvania
	 

	 	South Carolina
	 

	 	Tennessee
	 

	 	Utah
	 

	 	Virginai
	 

	 	Washington
	 

	 	West Virginia
	 

	 	Wisconsin
	 
	 	 
	Metal Coaters of California, Inc.

	 	California






 









 





	 	 	 
	COMPANY	 	JURISDICTION OF QUALIFICATION
	Metal Building Components, L.P.

	 	Arizona
	 

	 	California
	 

	 	Florida
	 

	 	Georgia
	 

	 	Idaho
	 

	 	Indiana
	 

	 	Iowa
	 

	 	Kentucky
	 

	 	Michigan
	 

	 	Mississippi
	 

	 	Nebraska
	 

	 	New Jersey
	 

	 	New York
	 

	 	North Dakota
	 

	 	Oklahoma
	 

	 	Pennsylvania
	 

	 	Tennessee
	 

	 	Utah
	 

	 	Virginia










 









 





June 18, 2004




NCI Building Systems, Inc.

10943 N. Sam Houston Parkway W.

Houston, Texas 77064





			
	Attention:	 	Robert J. Medlock

Chief Executive Officer





Wachovia Bank, National Association,

as Administrative Agent (the “New Agent”)

201 South College Street, CP-8

Charlotte, NC 28288

Attention: Syndication Agency Services





			
	       Re:	 	Credit Agreement dated as of September 13, 2002 (as amended, restated,
supplemented and otherwise modified through and including the date hereof, the
“Existing Credit Agreement”), among NCI Building Systems, Inc., a Delaware
corporation (the “Borrower”), the other lenders party thereto (the
“Existing Lenders”), Wachovia Bank, National Association, as syndication
agent and Bank of America, N.A., as administrative agent for the Existing Lenders
(in such capacity, the “Administrative Agent”).





Ladies and Gentlemen:



Reference is made to the Existing Credit Agreement referred to above. We understand that on June
18, 2004 (the “Payoff Date”), the Borrower intends to (i) enter into a New Credit
Agreement (the “New Credit Agreement”) dated as of the Payoff Date, by and among the
Borrower, the subsidiary guarantors from time to time party thereto, the financial institutions
from time to time party thereto and Wachovia Bank, National Association, as administrative agent
(the “New Agent”) and (ii) cause all indebtedness, liabilities and other obligations of
the Borrower and its subsidiaries to the Existing Lenders and/or the Administrative Agent owing
under the Existing Credit Agreement and all other agreements, documents and certificates executed
in connection therewith (collectively, the “Existing Credit Documents”), including,
without limitation, all principal, accrued interest, costs, expenses and fees outstanding
(including, without limitation, reasonable attorneys’ fees), to be repaid in full.



The Borrower has further advised us that, simultaneously with the termination of the credit
facility evidenced by the Existing Credit Documents and the closing of the New Credit Agreement,
each of the outstanding Letters of Credit (the “Existing Letters of Credit”) under the
Existing Credit Agreement as more specifically set forth on Schedule 1 hereto shall be
transferred and deemed issued under the New Credit Agreement and governed by the terms and
provisions thereof.



Subject to the conditions set forth herein and upon the receipt by the Administrative Agent by
2:00 p.m., Dallas, Texas time, on the Payoff Date, of the amounts set forth below, or, if paid on








 









 








any later date, such amounts plus additional interest and fees in the amount of $10,175.15 per day
for the Payoff Date and each day after the Payoff Date, to but excluding the date of such payment
(the “Payoff Amount”), in U.S. dollars and in immediately available funds, the
Administrative Agent agrees that all obligations of the Borrower and its subsidiaries under the
Existing Credit Documents (except for those indemnification and similar obligations that by their
terms expressly survive termination of the Existing Credit Agreement and the other Existing Credit
Documents), including principal, accrued and unpaid interest, costs, expenses and fees (including,
without limitation, reasonable attorneys’ fees), shall be paid in full, all Existing Credit
Documents (excluding the Letters of Credit which, as of the Payoff Date, shall be deemed issued
under and governed by the New Credit Agreement) shall be terminated, all commitments of the
Existing Lenders shall be terminated, all guarantees provided under the Existing Credit Documents
shall be terminated and any security interest or lien granted to the Existing Lenders and/or the
Administrative Agent in the personal property or real property of the Borrower and/or any of its
subsidiaries securing amounts evidenced by the Existing Credit Documents shall terminate, and the
Administrative Agent agrees to deliver to the New Agent, at the Borrower’s sole cost and expense,
such stock certificates, instruments and other documents as the Borrower and/or the New Agent may
reasonably request in connection with such termination. Further, the Administrative Agent
authorizes the New Agent and its counsel to prepare and upon confirmation of receipt of the Payoff
Amount in U.S. dollars and in immediately available funds by the Administrative Agent file, at the
Borrower’s sole cost and expense, such UCC-3 termination statements as the New Agent may reasonably
deem necessary or appropriate in connection with the termination of the Existing Credit Documents.



As a condition to such termination, the following Payoff Amount is required:




	 	 	 	 	 
	Principal:
	 	$	         
         	 
	Interest:
	 	$		 
	Unused Fee:
	 	$		 
	Letter of Credit Fees:
	 	$		 
	Winstead Fees, Costs and Expenses:
	 	$		 
	Payoff Amount:
	 	$		 





The Administrative Agent hereby instructs the Borrower to pay or cause to be paid the Payoff
Amount in U.S. Dollars by wire transfer on the Payoff Date to the following account in
accordance with the following wire transfer instructions:




	 	 	 
	Bank:
	 	Bank of America, N.A.,
	ABA#:
	 	
	Account #:
	 	
	Account Name:
	 	
	Final Credit to:
	 	
	Reference:
	 	NCI Building Systems





Notwithstanding anything to the contrary contained in this letter agreement, the Borrower hereby
agrees to indemnify the Administrative Agent and each Existing Lender and hold the








2









 







Administrative Agent and each Existing Lender harmless from and against any and all costs,
expenses, damages, claims, losses and other amounts which the Administrative Agent and/or any
Existing Lender may suffer or incur as a result of or in connection with (i) the transactions and
matters contemplated by this letter agreement (including, without limitation, any breakage costs
incurred pursuant to Section 3.05 of the Existing Credit Agreement as a result of a prepayment of
any Eurodollar Rate Loans and reasonable attorneys’ fees) and (ii) non-payment, claim, refund, or
dishonor of any checks or other items which have been credited by the Administrative Agent or any
of the Existing Lenders to the account of the Borrower with the Administrative Agent or any of the
Existing Lenders, as applicable, together with any expenses or other customary charges incident
thereto (including, without limitation, reasonable attorneys’ fees); except that no amount shall
be paid pursuant to clause (i) or (ii) above to the extent that such costs, expenses, damages,
claims, losses or other amounts resulted from the Administrative Agent’s and/or an Existing
Lender’s gross negligence or willful misconduct. The Borrower hereby agrees to pay any and all
claims and amounts arising under this paragraph to the Administrative Agent promptly upon demand
therefor and in any event within ten (10) business days after such demand.



This letter agreement shall be effective and binding upon the parties hereto when a counterpart is
signed by each of the parties hereto in the appropriate space provided below. The parties hereto
acknowledge and agree that delivery by facsimile or e-mail of signed counterparts of this letter
shall constitute delivery hereof.





3









 







This letter agreement shall be construed, interpreted and applied in accordance with the laws
of the State of North Carolina.




	 	 	 	 	 
	 	Very truly yours,



BANK OF AMERICA, N.A., 

as Administrative Agent

 	 
	 	By:  	/s/ Brian D. Corum
 	 
	 	Name:  	Brian D. Corum 	 
	 	Title:  	Managing Director 	 
	 



	 	 	 	 	 
	Accepted and Agreed By:



NCI BUILDING SYSTEMS, INC.

as Borrower

 	 
	By:  	/s/ Robert J. Medlock
 	 
	Name:  	Robert J. Medlock 	 
	Title:  	Exec. V.P. & CFO	 
	 
	WACHOVIA BANK, NATIONAL ASSOCIATION, 

as New Agent

 	 
	By:  	/s/ Glenn F. Edwards
 	 
	Name:  	Glenn F. Edwards  	 
	Title:  	Managing Director 	 



4









 






	 	 	 	 	 



SCHEDULE 1




Letters of Credit



 









 






	1.	 	Standby Letter of Credit issued by Bank of America, N.A. (No. 907590) in favor of
Traveler’s Insurance Indemnity Company in the amount of
$                  
(expiring on or around
November 2004).
	 
	2.	 	Standby Letter of Credit issued by Bank of America, N. A.
(No. 3050664) in favor of St. Paul
Fire and Marine Insurance Company in the amount of
$         
          (expiring on November 1 or 17,
2004).






 











 





SOLVENCY CERTIFICATE




     The undersigned chief financial officer of NCI Building Systems, Inc., a Delaware
corporation (the “Borrower”), is familiar with the properties, businesses, assets and
liabilities of the Credit Parties and is duly authorized to execute this certificate on behalf
of the Borrower.



     Reference is made to that Credit Agreement, dated as of June 18, 2004 (as amended,
restated or otherwise modified, the “Credit Agreement”), by and among the Borrower, the
Domestic Subsidiaries of the Borrower from time to time party thereto (collectively the
“Guarantors”), the lenders from time to time party thereto (the “Lenders”) and Wachovia Bank,
National Association, as Administrative Agent for the Lenders (the “Administrative Agent”). All
capitalized terms used herein and not defined shall have the meanings provided in the Credit
Agreement.



     The undersigned certifies that he has made such investigation and inquiries as to the
financial condition of the Credit Parties as the undersigned deems necessary and prudent for the
purpose of providing this Certificate. The undersigned acknowledges that the Administrative
Agent and the Lenders are relying on the truth and accuracy of this Certificate in connection
with the making of Loans and other Extensions of Credit under the
Credit Agreement.



     The undersigned certifies that the financial information, projections and assumptions which
underlie and form the basis for the representations made in this Certificate were reasonable when
made and were made in good faith and continue to be reasonable as of the date hereof.



     BASED ON THE FOREGOING, the undersigned certifies that, both before and after giving
effect to the Loans and other Extensions of Credit made on the Closing Date:




     A. Each of the Credit Parties and is able to pay its debts and other liabilities,
contingent obligations and other commitments as they mature in the normal course of
business.




     B. None of the Credit Parties intends to, and does not believe that it will, incur
debts or liabilities beyond its ability to pay as such debts and liabilities mature in
their ordinary course.




     C. None of the Credit Parties is engaged in any business or transaction, or is
about to engage in any business or transaction, for which the assets of such Credit
Party would constitute unreasonably small capital after giving due consideration to the
prevailing practice in the industry in which such Credit Party is engaged or is to
engage.




     D. The present fair saleable value of the consolidated assets of the Credit Parties
and their Subsidiaries, taken as a whole, measured on a going concern basis, exceeds all
probable liabilities including those incurred pursuant to the Credit
Agreement.



[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]




1









 





     IN WITNESS WHEREOF, the undersigned has executed this Certificate this 18th day of June, 2004,
in the undersigned’s capacity as the chief financial officer of
the Borrower.



	 	 	 	 	 
	 	NCI BUILDING SYSTEMS, INC., 

a Delaware corporation

 	 
	 	By:  	/s/ Robert J. Medlock
 	 
	 	 	Robert J. Medlock  	 
	 	 	Executive Vice President and Chief
Financial Officer 	 
	 




2









 






FINANCIAL CONDITION CERTIFICATE





			
	TO:	 	Wachovia Bank, National Association, as Administrative Agent

201 South College Street

NC0680/CP-8

Charlotte, North Carolina 28288-0608

Attn: Syndication Agency Services






			
	RE:	 	Credit Agreement dated as of June 18, 2004 among NCI Building Systems, Inc. (the “Borrower”),
certain Subsidiaries of the Borrower as Guarantors, the Lenders party thereto and Wachovia Bank,
National Association, as Administrative Agent (as the same may be amended, modified, extended or
restated from time to time, the “Credit Agreement”).




DATE: June 18, 2004




          Pursuant to the terms of Section 4.1(q) of the Credit Agreement, I, Robert J. Medlock, Executive
Vice President and Chief Financial Officer of the Borrower hereby certify, on behalf of the
Borrower and not in my individual capacity, that, as of the date hereof, the statements below are
accurate and complete in all respects (all capitalized terms used herein and not otherwise defined
shall have the meanings set forth in the Credit Agreement):





     1. No action, suit, investigation or proceeding is pending, ongoing or, to the knowledge of any
Credit Party, threatened in any court or before any other Governmental Authority that purports to
affect any Credit Party or any other transaction contemplated by the Credit Documents, which
action, suit, investigation or proceeding the Borrower has reasonably concluded could be expected
to have a Material Adverse Effect.




     2. Immediately after giving effect to this Credit Agreement, the other Credit Documents, and all
the transactions contemplated therein to occur on such date, (A) no Default or Event of Default
exists, (B) all representations and warranties contained in the Credit Agreement and in the other
Credit Documents are true and correct in all material respects, and (C) the Credit Parties are in
compliance with each of the financial covenants set forth in Section 5.9 (as demonstrated through
detailed calculations of such financial covenants on an exhibit to this certificate).




     3. The Leverage Ratio of the Credit Parties and their Subsidiaries on a Consolidated basis is not
greater than 3.00 to 1.0, calculated on a pro forma basis giving effect to the initial Extensions
of Credit and the transactions to occur on the Closing Date, as of the most recently ended twelve
month period as of May 1, 2004.




     4. The Consolidated EBITDA is not less than $80,000,000, calculated on a pro forma basis giving
effect to the initial Extensions of Credit and the transactions to occur on the Closing Date, for
the twelve month period ending as of May 1, 2004.




 









 








	 	 	 	 	 
	 	NCI BUILDING SYSTEMS, INC., 

a Delaware corporation

 	 
	 	By:  	/s/ Robert J. Medlock
 	 
	 	Name:  	Robert J. Medlock 	 
	 	Title:  	Executive Vice President and Chief Financial Officer	 
	 




2









 








SCHEDULE 1 TO OFFICER’S CERTIFICATE




Schedule 1

to

Officer’s Compliance Certificate



PRO FORM



Covenant Calculation Worksheet for the Period
Ended                    
200      



For the
Quarter/Year ended                      May 1, 2004       (“Financial Statement Date”)



	 	 	 	 	 
	I. Leverage Ratio
	 	 	 	 
	 
	 	 	 
	 
	 	 	 	 
	A. Funded Debt, as of Interest Determination Date, for the Borrower and its Subsidiaries on a
consolidated basis:
	 	 	 	 
	 
	 	 	 
	 
	 	 	 	 
	1. Funded Debt:
	 	 	 	 
	 
	 	 	 
	 
	 	 	 	 
	(a) Without duplication, all obligations for borrowed money and all
obligations evidenced by bonds, debentures, notes, loan agreements or other
similar instruments (in thousands):
	 	$		 
	 
	 	 	 
	 
	 	 	 	 
	(b) Without duplication, Attributable Indebtedness in respect of Capital
Leases and Synthetic Lease Obligations (in thousands):
	 	$	 	 
	 
	 	 	 	 
	 
	 	 	 	 
	(c) Without duplication, obligations in respect of any
Redeemable Stock (in thousands):
	 	$	 	 
	 
	 	 	 	 
	 
	 	 	 	 
	(d) Without duplication, all direct or contingent obligations arising
under letters of credit (including standby and commercial), banker’s
acceptances, bank guaranties, surety bonds and similar instruments fin
thousands):
	 	$		 
	 
	 	 	 
	 
	 	 	 	 
	(e) Without duplication, all obligations to pay the deferred purchase
price of property or services (other than trade payables incurred in the
ordinary course of business or accrued liabilities arising in the ordinary
course of business that are not overdue or that are being contested in good
faith), and indebtedness (excluding prepaid interest thereon) secured by a Lien
on property owned or being purchased (including indebtedness arising under
conditional sales or other title retention agreements), whether or not such
indebtedness shall have been assumed or is limited in recourse (in thousands):
	 	$	 	 
	 
	 	 	 	 
	 
	 	 	 	 
	(f) Without duplication, net obligations under any
Hedging Agreement (in thousands):
	 	$	 	 
	 
	 	 	 	 
	 
	 	 	 	 





3









 






	 	 	 	 	 
	(g) Without duplication, Guaranty Obligations
with respect to obligations of the type
specified in subsections (a) through (f)
above of Persons other than the Borrower or
any of its Subsidiaries (in thousands):
	 	$	 	 
	 
	 	 	 	 
	 
	 	 	 	 
	(h) Without duplication, all Indebtedness of
the types referred to in subsections (a)
through (g) above of any partnership or joint
venture (other than a joint venture that is
itself a corporation or limited liability
company) in which the Borrower or a
Subsidiary is a general partner or joint
venturer, unless such Indebtedness is
expressly made nonrecourse to the Borrower or
such Subsidiary (in thousands):
	 	$	 	 
	 
	 	 	 	 
	 
	 	 	 	 
	(i) Funded Debt (Lines L.A. 1(a) + (b) + (c) + (d)
+ (e) + (f) + (g) + (h)):
	 	$		 
	 
	 	 	 
	 
	 	 	 	 
	B. Consolidated EBITDA for the period of the four consecutive fiscal
quarters ending on the Interest Determination Date (the “Subject
Periods” for the Borrower and its Subsidiaries on a consolidated
basis:
	 	 	 	 
	 
	 	 	 
	 
	 	 	 	 
	1. Consolidated EBITDA:
	 	 	 	 
	 
	 	 	 	 
	(a) Consolidated Net Income for the Subject
Period (in thousands):
	 	$		 
	 
	 	 	 
	 
	 	 	 	 
	(b) Without duplication and to the extent
deducted in determining Net Income,
Consolidated Interest Expense for the Subject
Period (in thousands):
	 	$		 
	 
	 	 	 
	 
	 	 	 	 
	(c) Without duplication and to the extent
deducted in determining Consolidated Net
Income, federal, state, local and foreign
income taxes for the Subject Period (in
thousands):
	 	$		 
	 
	 	 	 
	 
	 	 	 	 
	(d) Without duplication and to the extent
deducted in determining Consolidated
Net Income, depreciation and amortization
expenses for the Subject Period (in
thousands):
	 	$		 
	 
	 	 	 
	 
	 	 	 	 
	(e) Without duplication and to the extent
deducted in determining Consolidated Net
Income, non-cash contributions during the
Subject Period to 401(k) and other employee
benefit plans, not to exceed $7,500,000 (in
thousands):
	 	$		 
	 
	 	 	 
	 
	 	 	 	 





4









 






	 	 	 	 	 
	(f) Without duplication
and to the extent
deducted in
determining
Consolidated Net
Income, non-cash
restructuring
charges (net of
tax) during the
Subject Period, not
to exceed $5,000,000 (in
thousands):
	 	$		 
	 
	 	 	 
	 
	 	 	 	 
	(g) Without duplication
and to the extent
deducted in
determining
Consolidated Net
Income, the
transaction costs
and expenses
incurred in
connection with the
Credit Agreement
(in thousands):
	 	$	—	 
	 
	 	 	 
	 
	 	 	 	 
	(h) Without duplication
and to the extent
deducted in
determining
Consolidated Net
Income, the premium
paid with respect
to the prepayment
of the Senior
Subordinated Notes
in an amount not to
exceed $5,800,000
(in thousands):
	 	$	—	 
	 
	 	 	 
	 
	 	 	 	 
	(i) Without
duplication and to
the extent deducted
in determining
Consolidated Net
Income, the noncash
write-off of the
remaining deferred
financing costs
related to the
Existing Credit
Agreement and the
Senior Subordinated
Notes in an amount
not to exceed
$4,100,000 (in
thousands):
	 	$	—	 
	 
	 	 	 
	 
	 	 	 	 
	(j) EBITDA (Lines
I.B.l(a) + (b) +
(c) + (d) + (e) +
(f)+(g) + (h) +
(i)):
	 	$		 
	 
	 	 	 
	 
	 	 	 	 
	C. Leverage
Ratio (Line I.A.I.(i) + Line I.B.l.(j)):
	 	2.19 to l
	 
	 	 	 
	 
	 	 	 	 
	D. Maximum Leverage Ratio:
	 	4.00 to 1
	 
	 	 	 
	 
	 	 	 	 
	II. Senior Leverage Ratio
	 	 	 	 
	 
	 	 	 	 
	A. Senior Funded Debt, as of Interest Determination Date, for the Borrower and its
Subsidiaries on a consolidated basis:
	 	 	 	 
	 
	 	 	 
	 
	 	 	 	 
	1. Consolidated Funded Debt (Line I.A.l.(i))
	 	$		 
	 
	 	 	 
	 
	 	 	 	 
	2. Subordinated Debt
	 	$		 
	 
	 	 	 
	 
	 	 	 	 
	3. Senior
Funded Debt (Line II.A. I — Line IIA.2)
	 	$		 
	 
	 	 	 
	 
	 	 	 	 
	B. Consolidated EBITDA for the period of the four consecutive fiscal quarters ending on the
Interest Determination Date (“the “Subject Period”) for the Borrower and its Subsidiaries
on a consolidated basis:
	 	 	 	 
	 
	1.
Consolidated EBITDA (Line I.B.1.(J)):
	 	$		 
	 
	 	 	 
	 
	 	 	 	 
	C. Senior
Leverage Ratio (Line IIA. 3. + Line II.B.I.):
	 	 	.88 to 1	 
	 
	 	 	 
	 
	 	 	 	 
	D. Maximum Leverage Ratio:
	 	 	3.50 to 1	 
	 
	 	 	 
	 
	 	 	 	 





5









 






	 	 	 	 	 
	III.   Interest Coverage Ratio.
	 	 	 	 
	 
	 	 	 	 
	A. Consolidated EBITDA for the Subject Period (Line LB.l(j)) (in
thousands):
	 	$		 
	 
	 	 	 
	 
	 	 	 	 
	B. Consolidated Interest Expense for the Subject Period
	 	 	 	 
	 
	 	 	 
	 
	 	 	 	 
	1. total interest expense, for the Subject Period, whether paid
or accrued (including the interest component of Capital Leases)
including, without limitation, all commitment fees, commissions,
discounts and other fees and charges owed with respect to letters of
credit and net costs under interest rate contracts and foreign exchange
contracts (in thousands):
	 	$		 
	 
	 	 	 
	 
	 	 	 	 
	2. amortization of debt issuance costs (in thousands):
	 	$		 
	 
	 	 	 
	 
	 	 	 	 
	3. Interest
Expense (Lines III.B.1.-2.) (in thousands):
	 	$		 
	 
	 	 	 
	 
	 	 	 	 
	C. Interest
Coverage Ratio (Line III.A. + Line III.B.3.):
	 	5.43 to 1
	 
	 	 	 
	 
	 	 	 	 
	D. Minimum Required:
	 	 	3.50 to 1	 
	 
	 	 	 
	 
	 	 	 	 
	IV. Consolidated Capital Expenditures.
	 	 	 	 
	 
	 	 	 	 
	A. Consolidated Capital Expenditures for 2004 as of Closing Date
	 	$		 
	 
	 	 	 
	 
	 	 	 	 
	B. Maximum Consolidated Capital Expenditures for 2004 - s *
	 	$		 
	 
	 	 	 
	 
	 	 	 	 





6









 










PATRIOT ACT COMPLIANCE CERTIFICATE



	 	 	 
	TO:

	 	Wachovia Bank, National Association, as Administrative Agent
	 
	 	 
	RE:

	 	Credit Agreement dated on or about June 18, 2004 (as amended, restated or
otherwise modified, the “Credit Agreement”) by and among NCI
Building Systems, Inc., a Delaware corporation (the “Borrower”), the
Domestic Subsidiaries of the Borrower identified therein, the Lenders party thereto
and Wachovia Bank, National Association, as Administrative Agent
	 
	 	 
	DATE:

	 	June 18, 2004






     I, Robert J. Medlock hereby certify that I am the duly elected, qualified and acting
Executive Vice President and Chief Financial Officer of each of the Credit Parties and am
authorized to execute this certificate on behalf of the Credit Parties. Capitalized terms used
herein and not otherwise defined herein shall have the meanings set forth in the Credit Agreement



     Solely in my capacity as Executive Vice President and Chief Financial Officer of the Credit
Parties, I hereby certify on behalf of the Credit Parties that attached hereto on Exhibit A
is true and complete information, as requested by the Administrative Agent, on behalf of the
Lenders, for compliance with the USA Patriot Act, Title III of Pub. L. 107-56, signed into law
October 26, 2001 (the “Patriot Act”), including, without limitation, the legal name and
address of the Credit Parties and other information that will allow the Administrative Agent or any
Lender, as applicable, to identify the Credit Parties in accordance with the Patriot Act



[Signatures on Following Page]




10943 N. Sam Houston Parkway W. • Houston, Texas 77064

P.O. Box 692055 • Houston, Texas 77269-2055 • Telephone: (281) 897-7788 • Fax:281-477-9675







 









 







IN WITNESS WHEREOF, I have hereunto set my hand this 18th day of June, 2004.




	 	 	 	 	 	 	 	 	 
	 	 	NCI Building Systems, Inc.

NCI Holding Corp.,

each a Delaware corporation	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	/s/ Robert J. Medlock	 	 
	 	 	 	 	 	 	 
	 	 	 	 	Robert J. Medlock, Executive Vice	 	 
	 	 	 	 	President and Chief Financial Officer	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	NCI Operating Corp.,

a Nevada corporation	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	/s/ Robert J. Medlock	 	 
	 	 	 	 	 	 	 
	 	 	 	 	Robert J. Medlock, Executive Vice

President and Chief Financial Officer	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	Metal Coaters of California, Inc.,

a Texas corporation	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	/s/ Robert J. Medlock	 	 
	 	 	 	 	 	 	 
	 	 	 	 	Robert J. Medlock, Executive Vice	 	 
	 	 	 	 	President and Chief Financial Officer	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	A & S Building Systems, L.P.

NCI Building Systems, L.P.

Metal Building Components, L.P.

NCI Group, L.P., 

each a Texas limited partnership	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	   By:
	 	NCI Operating Corp., 

a Nevada corporation as

general partner	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	   By:
	 	/s/ Robert J. Medlock	 	 
	 

	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	Robert J. Medlock, Executive Vice	 	 
	 

	 	 	 	 	 	President and Chief Financial Officer	 	 











 









 







Exhibit A




	 	 	 
	Legal Name of the Borrower/Credit Party:

	 	NCI BUILDING SYSTEMS, INC.
	State of Incorporation:

	 	DELAWARE
	Address of Chief Executive Office:

	 	10943 N. SAM HOUSTON PARKWAY WEST

HARRIS COUNTY

HOUSTON, TEXAS 77064
	Address of Principal Place of Business:

	 	SAME
	 
	 	 
	Legal Name of the Credit Party:

	 	NCI OPERATING CORP.
	State of Incorporation:

	 	NEVADA
	Address of Chief Executive Office:

	 	10943 N. SAM HOUSTON PARKWAY WEST

HARRIS COUNTY

HOUSTON, TEXAS 77064
	Address of Principal Place of Business:

	 	SAME
	 
	 	 
	Legal Name of the Borrower/Credit Party:

	 	NCI HOLDING CORP.
	State of Incorporation:

	 	DELAWARE
	Address of Chief Executive Office:

	 	1105 N. MARKET STREET

SUITE 1300

NEW CASTLE COUNTY

WILMINGTON, DE 19801
	Address of Principal Place of Business:

	 	SAME
	 
	 	 
	Legal Name of the Credit Party:

	 	METAL COATERS OF CALIFORNIA, INC.
	State of Incorporation:

	 	TEXAS
	Address of Chief Executive Office:

	 	10943 N. SAM HOUSTON PARKWAY WEST

HARRIS COUNTY

HOUSTON, TEXAS 77064
	Address of Principal Place of Business:

	 	9123 CENTER STREET
 SAN BERNADINO
COUNTY
 RANCHO CUCAMONGA,
CALIFORNIA 91730
	 
	 	 
	Legal Name of the Credit Party:

	 	A & S BUILDING SYSTEMS, L.P.
	State of Organization:

	 	TEXAS
	Address of Chief Executive Office:

	 	10943 N. SAM HOUSTON PARKWAY WEST

HARRIS COUNTY

HOUSTON, TEXAS 77064
	Address of Principal Place of Business:

	 	1880 HIGHWAY 116

CAMPBELL COUNTY

CARYVILLE, TENNESSEE 37714
	 
	 	 
	Legal Name of the Credit Party:

	 	NCI BUILDING SYSTEMS, L.P.
	State of Organization:

	 	TEXAS
	Address of Chief Executive Office:

	 	10943 N. SAM HOUSTON PARKWAY WEST

HARRIS COUNTY

HOUSTON, TEXAS 77064
	Address of Principal Place of Business:

	 	7301 FAIRVIEW

HARRIS COUNTY

HOUSTON, TEXAS 77041






 









 





	 	 	 
	Legal Name of the Credit Party:

	 	METAL BUILDING COMPONENTS, L.P.
	State of Organization:

	 	TEXAS
	Address of Chief Executive Office:

	 	10943 N. SAM HOUSTON PARKWAY
WEST

HARRIS COUNTY

HOUSTON, TEXAS 77064
	Address of Principal Place of Business:

	 	14031 WEST HARDY

HARRIS COUNTY

HOUSTON, TEXAS 77060
	 
	 	 
	Legal Name of the Credit Party:

	 	NCI GROUP, L.P.
	State of Organization:

	 	TEXAS
	Address of Chief Executive Office:

	 	10943 N. SAM HOUSTON PARKWAY
WEST

HARRIS COUNTY

HOUSTON, TEXAS 77064
	Address of Principal Place of Business:

	 	SAME