exv10w1






Exhibit 10.1




Published Transaction CUSIP Number: 37468UAA8

Published Revolver CUSIP Number: 37468UAB6

Published Term Loan CUSIP Number: 37468UAC4




FOURTH AMENDED AND

RESTATED CREDIT AGREEMENT




among




GIBRALTAR INDUSTRIES, INC.

and

GIBRALTAR STEEL CORPORATION OF NEW YORK

as Borrowers




THE LENDERS NAMED HEREIN

as Lenders




KEYBANK NATIONAL ASSOCIATION

as Lead Arranger, Sole Book Runner and Administrative Agent




JPMORGAN CHASE BANK, N.A.

as Co-Syndication Agent

BANK OF AMERICA, N.A.

as Co-Syndication Agent




M&T BANK

as Co-Documentation Agent

RBS CITIZENS, NATIONAL ASSOCIATION

as Co-Documentation Agent

HSBC BANK USA, NATIONAL ASSOCIATION

as Co-Documentation Agent





dated as of

October 11, 2011




 


 









 





TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page	 
	 
	 	 	 	 
	ARTICLE I. DEFINITIONS
	 	 	2	 
	Section 1.1. Definitions
	 	 	2	 
	Section 1.2. Accounting Terms
	 	 	44	 
	Section 1.3. Terms Generally
	 	 	44	 
	Section 1.4. Confirmation of Recitals
	 	 	44	 
	 
	 	 	 	 
	ARTICLE II. AMOUNT AND TERMS OF CREDIT
	 	 	45	 
	Section 2.1. Amount and Nature of Credit
	 	 	45	 
	Section 2.2. Revolving Credit Commitment
	 	 	45	 
	Section 2.3. Term Loan Commitment
	 	 	52	 
	Section 2.4. Interest
	 	 	52	 
	Section 2.5. Evidence of Indebtedness
	 	 	54	 
	Section 2.6. Notice of Loans and Credit Events; Funding of Loans
	 	 	55	 
	Section 2.7. Payment on Loans and Other Obligations
	 	 	57	 
	Section 2.8. Prepayment
	 	 	59	 
	Section 2.9. Commitment and Other Fees
	 	 	60	 
	Section 2.10. Modifications to Commitment
	 	 	61	 
	Section 2.11. Computation of Interest and Fees
	 	 	62	 
	Section 2.12. Mandatory Payments
	 	 	62	 
	Section 2.13. Liability of Borrowers
	 	 	65	 
	Section 2.14. Establishment of Reserves
	 	 	66	 
	Section 2.15. Addition of Collateral for Fixed Asset Advance
	 	 	67	 
	Section 2.16. Addition of Borrowing Base Company
	 	 	67	 
	Section 2.17. Record of Advances; Application of Collections
	 	 	68	 
	Section 2.18. Protective Advances
	 	 	70	 
	 
	 	 	 	 
	ARTICLE III. ADDITIONAL PROVISIONS RELATING TO LIBOR FIXED RATE LOANS; INCREASED CAPITAL; TAXES
	 	 	70	 
	Section 3.1. Requirements of Law
	 	 	70	 
	Section 3.2. Taxes
	 	 	72	 
	Section 3.3. Funding Losses
	 	 	73	 
	Section 3.4. Change of Lending Office
	 	 	73	 
	Section 3.5. Eurodollar Rate or Alternate Currency Rate Lending Unlawful; Inability to Determine Rate
	 	 	74	 
	Section 3.6. Replacement of Lenders
	 	 	74	 
	Section 3.7. Discretion of Lenders as to Manner of Funding
	 	 	75	 
	 
	 	 	 	 
	ARTICLE IV. CONDITIONS PRECEDENT
	 	 	75	 
	Section 4.1. Conditions to Each Credit Event
	 	 	75	 
	Section 4.2. Certain Closing Deliveries Under Existing Credit Agreement
	 	 	75	 
	Section 4.3. Conditions to the First Credit Event
	 	 	78	 
	Section 4.3. Post-Closing Conditions
	 	 	84	 
	 
	 	 	 	 
	ARTICLE V. COVENANTS
	 	 	85	 
	Section 5.1. Insurance
	 	 	85	 
	Section 5.2. Money Obligations
	 	 	86	 
	Section 5.3. Financial Statements, Collateral Reporting and Information
	 	 	86	 





 


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	 	 	Page	 
	 
	 	 	 	 
	Section 5.4. Financial Records
	 	 	89	 
	Section 5.5. Franchises; Change in Business
	 	 	90	 
	Section 5.6. ERISA Pension and Benefit Plan Compliance
	 	 	90	 
	Section 5.7. Financial Covenants
	 	 	91	 
	Section 5.8. Borrowing
	 	 	91	 
	Section 5.9. Liens
	 	 	93	 
	Section 5.10. Regulations T, U and X
	 	 	94	 
	Section 5.11. Investments, Loans and Guaranties
	 	 	94	 
	Section 5.12. Merger and Sale of Assets
	 	 	95	 
	Section 5.13. Acquisitions
	 	 	97	 
	Section 5.14. Notice
	 	 	98	 
	Section 5.15. Restricted Payments
	 	 	98	 
	Section 5.16. Environmental Compliance
	 	 	99	 
	Section 5.17. Affiliate Transactions
	 	 	100	 
	Section 5.18. Use of Proceeds
	 	 	100	 
	Section 5.19. Corporate Names and Locations of Collateral
	 	 	100	 
	Section 5.20. Subsidiary Guaranties, Security Documents and Pledge of Stock or Other Ownership Interest
	 	 	101	 
	Section 5.21. Collateral
	 	 	102	 
	Section 5.22. Returns of Inventory
	 	 	104	 
	Section 5.23. Acquisition, Sale and Maintenance of Inventory
	 	 	104	 
	Section 5.24. Property Acquired Subsequent to the Closing Date and Right to Take Additional Collateral
	 	 	104	 
	Section 5.25. Restrictive Agreements
	 	 	105	 
	Section 5.26. Most Favored Covenant Status
	 	 	105	 
	Section 5.27. Pari Passu Ranking
	 	 	106	 
	Section 5.28. Guaranty Under Material Indebtedness Agreement
	 	 	106	 
	Section 5.29. Amendments to Material Indebtedness Agreements
	 	 	106	 
	Section 5.30. Prepayments and Refinancings of Other Debt
	 	 	106	 
	Section 5.31. Amendment of Organizational Documents
	 	 	106	 
	Section 5.32. Fiscal Year of Borrowers
	 	 	106	 
	Section 5.33. Further Assurances
	 	 	107	 
	 
	 	 	 	 
	ARTICLE VI. REPRESENTATIONS AND WARRANTIES
	 	 	107	 
	Section 6.1. Corporate Existence; Subsidiaries; Foreign Qualification
	 	 	107	 
	Section 6.2. Corporate Authority
	 	 	107	 
	Section 6.3. Compliance with Laws and Contracts
	 	 	108	 
	Section 6.4. Litigation and Administrative Proceedings
	 	 	108	 
	Section 6.5. Title to Assets
	 	 	108	 
	Section 6.6. Liens and Security Interests
	 	 	109	 
	Section 6.7. Tax Returns
	 	 	109	 
	Section 6.8. Environmental Laws
	 	 	109	 
	Section 6.9. Locations
	 	 	109	 
	Section 6.10. Continued Business
	 	 	110	 
	Section 6.11. Employee Benefits Plans
	 	 	110	 
	Section 6.12. Consents or Approvals
	 	 	111	 





 


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	 	 	Page	 
	 
	 	 	 	 
	Section 6.13. Solvency
	 	 	111	 
	Section 6.14. Financial Statements
	 	 	111	 
	Section 6.15. Regulations
	 	 	112	 
	Section 6.16. Material Agreements
	 	 	112	 
	Section 6.17. Intellectual Property
	 	 	112	 
	Section 6.18. Insurance
	 	 	112	 
	Section 6.19. Deposit Accounts and Securities Accounts
	 	 	112	 
	Section 6.20. Accurate and Complete Statements
	 	 	112	 
	Section 6.21. Investment Company; Other Restrictions
	 	 	113	 
	Section 6.22. Acquisition Agreement Representations
	 	 	113	 
	Section 6.23. Subordinated Indenture
	 	 	113	 
	Section 6.24. Defaults
	 	 	113	 
	 
	 	 	 	 
	ARTICLE VII. CASH MANAGEMENT AND COLLATERAL
	 	 	113	 
	Section 7.1. Cash Management System
	 	 	113	 
	Section 7.2. Collections and Receipt of Proceeds by the Administrative Agent
	 	 	116	 
	Section 7.3. Administrative Agent’s Authority Under Pledged Notes
	 	 	117	 
	Section 7.4. Commercial Tort Claims
	 	 	118	 
	 
	 	 	 	 
	ARTICLE VIII. EVENTS OF DEFAULT
	 	 	118	 
	Section 8.1. Payments
	 	 	118	 
	Section 8.2. Special Covenants
	 	 	118	 
	Section 8.3. Other Covenants
	 	 	118	 
	Section 8.4. Representations and Warranties
	 	 	119	 
	Section 8.5. Cross Default
	 	 	119	 
	Section 8.6. Subordinated Indenture
	 	 	119	 
	Section 8.7. ERISA Default
	 	 	119	 
	Section 8.8. Change in Control
	 	 	119	 
	Section 8.9. Judgments
	 	 	119	 
	Section 8.10. Security
	 	 	120	 
	Section 8.11. Validity of Loan Documents
	 	 	120	 
	Section 8.12. Solvency
	 	 	120	 
	 
	 	 	 	 
	ARTICLE IX. REMEDIES UPON DEFAULT
	 	 	121	 
	Section 9.1. Optional Defaults
	 	 	121	 
	Section 9.2. Automatic Defaults
	 	 	121	 
	Section 9.3. Letters of Credit
	 	 	122	 
	Section 9.4. Offsets
	 	 	122	 
	Section 9.5. Equalization Provisions
	 	 	122	 
	Section 9.6. Collateral
	 	 	124	 
	Section 9.7. Administrative Agent’s Rights to Occupy and Use Property of Credit Parties
	 	 	124	 
	Section 9.8. Other Remedies
	 	 	125	 
	Section 9.9. Application of Proceeds
	 	 	125	 
	 
	 	 	 	 
	ARTICLE X. THE ADMINISTRATIVE AGENT
	 	 	126	 
	Section 10.1. Appointment and Authorization
	 	 	126	 
	Section 10.2. Note Holders
	 	 	127	 





 


iii









 





	 	 	 	 	 
	 	 	Page	 
	 
	 	 	 	 
	Section 10.3. Consultation With Counsel
	 	 	127	 
	Section 10.4. Documents
	 	 	127	 
	Section 10.5. Administrative Agent and Affiliates
	 	 	127	 
	Section 10.6. Knowledge or Notice of Default
	 	 	128	 
	Section 10.7. Action by Administrative Agent
	 	 	128	 
	Section 10.8. Release of Collateral or Guarantor of Payment
	 	 	128	 
	Section 10.9. Delegation of Duties
	 	 	128	 
	Section 10.10. Indemnification of Administrative Agent
	 	 	129	 
	Section 10.11. Successor Agent
	 	 	129	 
	Section 10.12. Fronting Lender
	 	 	130	 
	Section 10.13. Swing Line Lender
	 	 	130	 
	Section 10.14. Administrative Agent May File Proofs of Claim
	 	 	130	 
	Section 10.15. No Reliance on Administrative Agent’s Customer Identification Program 
	 	 	131	 
	Section 10.16. Delivery of Certain Financial Information
	 	 	131	 
	Section 10.17. Other Agents
	 	 	131	 
	 
	 	 	 	 
	ARTICLE XI. GUARANTY
	 	 	131	 
	Section 11.1. Guaranty by Borrowers
	 	 	131	 
	Section 11.2. Additional Undertaking
	 	 	131	 
	Section 11.3. Guaranty Unconditional
	 	 	132	 
	Section 11.4. Borrowers’ Obligations to Remain in Effect; Restoration
	 	 	132	 
	Section 11.5. Certain Waivers
	 	 	133	 
	Section 11.6. Subrogation
	 	 	133	 
	Section 11.7. Effect of Stay
	 	 	133	 
	Section 11.8. Effect of Breach of Article XI
	 	 	133	 
	 
	 	 	 	 
	ARTICLE XII. MISCELLANEOUS
	 	 	133	 
	Section 12.1. Lenders’ Independent Investigation
	 	 	133	 
	Section 12.2. No Waiver; Cumulative Remedies
	 	 	134	 
	Section 12.3. Amendments, Waivers and Consents
	 	 	134	 
	Section 12.4. Notices
	 	 	135	 
	Section 12.5. Costs, Expenses and Documentary Taxes
	 	 	136	 
	Section 12.6. Indemnification
	 	 	136	 
	Section 12.7. Obligations Several; No Fiduciary Obligations
	 	 	137	 
	Section 12.8. Execution in Counterparts
	 	 	137	 
	Section 12.9. Binding Effect; Borrowers’ Assignment
	 	 	137	 
	Section 12.10. Lender Assignments
	 	 	137	 
	Section 12.11. Sale of Participations
	 	 	139	 
	Section 12.12. Replacement of Affected Lenders
	 	 	140	 
	Section 12.13. Patriot Act Notice
	 	 	140	 
	Section 12.14. Severability of Provisions; Captions; Attachments
	 	 	141	 
	Section 12.15. Investment Purpose
	 	 	141	 
	Section 12.16. Entire Agreement
	 	 	141	 
	Section 12.17. Confidentiality
	 	 	141	 
	Section 12.18. Limitations on Liability of the Fronting Lenders
	 	 	142	 
	Section 12.19. General Limitation of Liability
	 	 	142	 





 


iv









 





	 	 	 	 	 
	 	 	Page	 
	 
	 	 	 	 
	Section 12.20. No Duty
	 	 	143	 
	Section 12.21. Legal Representation of Parties
	 	 	143	 
	Section 12.22. Judgment Currency
	 	 	143	 
	Section 12.23. Governing Law; Submission to Jurisdiction
	 	 	144	 
	Section 12.24. Designated Senior Indebtedness
	 	 	144	 
	Jury Trial Waiver
	 	Signature Page 145	 






	 	 	 	 	 
	Exhibit A

	 	Form of Revolving Credit Note	E-1	 
	Exhibit B

	 	Form of Swing Line Note	E-4	 
	Exhibit C

	 	Form of Term Note	E-7	 
	Exhibit D

	 	Form of Notice of Loan	E-10	 
	Exhibit E

	 	Form of Compliance Certificate	E-12	 
	Exhibit F

	 	Form of Assignment and Acceptance Agreement	E-13	 
	 
	 	 		 
	Schedule 1

	 	Commitments of Lenders	S-1	 
	Schedule 2

	 	Guarantors of Payment	S-2	 
	Schedule 2.2

	 	Existing Letters of Credit	S-3	 
	Schedule 2.14

	 	Designated Hedge Agreements	S-4	 
	Schedule 3

	 	Borrowing Base Companies	S-5	 
	Schedule 4

	 	Real Property	S-6	 
	Schedule 5

	 	Pledged Securities	S-7	 
	Schedule 5.8

	 	Indebtedness	S-10	 
	Schedule 5.9

	 	Liens	S-11	 
	Schedule 5.11

	 	Permitted Foreign Subsidiary Loans, Guaranties and Investments	S-25	 
	Schedule 5.17

	 	Affiliate Transactions	S-26	 
	Schedule 6.1

	 	Corporate Existence; Subsidiaries; Foreign Qualification	S-27	 
	Schedule 6.4

	 	Litigation and Administrative Proceedings	S-33	 
	Schedule 6.5

	 	Real Estate Owned by the Companies	S-34	 
	Schedule 6.9

	 	Locations	S-35	 
	Schedule 6.11

	 	Employee Benefits Plans	S-41	 
	Schedule 6.16

	 	Material Agreements	S-42	 
	Schedule 6.17

	 	Intellectual Property	S-43	 
	Schedule 6.18

	 	Insurance	S-79	 
	Schedule 6.23

	 	“Credit Facilities” under the Subordinated Indenture	S-83	 
	Schedule 7.3

	 	Pledged Notes	S-84	 
	Schedule 7.4

	 	Commercial Tort Claims	S-85	 






 


v









 







This FOURTH AMENDED AND RESTATED CREDIT AGREEMENT (as the same may from time to time be
further amended, restated or otherwise modified, this “Agreement”) is made effective as of the
11th day of October, 2011 among:




(a) GIBRALTAR INDUSTRIES, INC., a Delaware corporation (“Gibraltar”);




(b) GIBRALTAR STEEL CORPORATION OF NEW YORK, a New York corporation (“GSCNY” and,
together with Gibraltar, collectively, the “Borrowers” and, individually, each a
“Borrower”);




(c) the lenders listed on Schedule 1 hereto and each other Eligible Transferee,
as hereinafter defined, that from time to time becomes a party hereto pursuant to Section
2.10(b) or 12.10 hereof (collectively, the “Lenders” and, individually, each a “Lender”);




(d) KEYBANK NATIONAL ASSOCIATION, a national banking association, as the lead arranger,
sole book runner and administrative agent for the Lenders under this Agreement (the
“Administrative Agent”);




(e) JPMORGAN CHASE BANK, N.A., a national banking association, and BANK OF AMERICA,
N.A., a national banking association, each a co-syndication agent under this Agreement (each
a “Co-Syndication Agent”); and




(f) M&T BANK, a New York banking corporation, RBS CITIZENS, NATIONAL ASSOCIATION, a
national banking association, and HSBC BANK USA, NATIONAL ASSOCIATION, a national banking
association, each a co-documentation agent under this Agreement (each a “Co-Documentation
Agent”).



WITNESSETH:




WHEREAS, the Borrowers, the Administrative Agent and the lenders named therein entered into
that certain Third Amended and Restated Credit Agreement, dated as of July 24, 2009 (the “Third
Amended Credit Agreement”), which agreement amended and restated that certain Second Amended and
Restated Credit Agreement, dated as of August 31, 2007, which agreement amended and restated that
certain Amended and Restated Credit Agreement, dated as of December 8, 2005 (collectively, such
agreements are referred to herein as the “Prior Credit Agreements”);



WHEREAS, this Agreement amends and restates in its entirety the Third Amended Credit Agreement
and, upon the effectiveness of this Agreement, on the Closing Date, the terms and provisions of the
Third Amended Credit Agreement shall be superseded hereby. All references to “Credit Agreement”
contained in the Loan Documents, as defined in the Prior Credit Agreements, delivered in connection
with the Prior Credit Agreements, shall be deemed to refer to this Agreement. Notwithstanding the
amendment and restatement of the Third Amended Credit Agreement by this Agreement, the obligations
outstanding (including, but not limited to, the letters of credit issued and outstanding) under the
Third Amended Credit


 


 









 






Agreement as of the Closing Date shall remain outstanding and constitute continuing Obligations
hereunder. Such outstanding Obligations and the guaranties of payment thereof shall in all
respects be continuing, and this Agreement shall not be deemed to evidence or result in a novation
or repayment and re-borrowing of such Obligations. In furtherance of and, without limiting the
foregoing, from and after the date hereof and except as expressly specified herein, the terms,
conditions, and covenants governing the obligations outstanding under the Third Amended Credit
Agreement shall be solely as set forth in this Agreement, which shall supersede the Third Amended
Credit Agreement in its entirety;



WHEREAS, it is the intent of the Borrowers, the Administrative Agent and the Lenders that the
provisions of this Agreement be effective commencing on the Closing Date; and



WHEREAS, the Borrowers, the Administrative Agent and the Lenders have contracted for the
establishment of credits in the aggregate principal amounts hereinafter set forth, to be made
available to the Borrowers upon the terms and subject to the conditions hereinafter set forth;




NOW, THEREFORE, it is mutually agreed as follows:



ARTICLE I. DEFINITIONS




Section 1.1. Definitions. As used in this Agreement, the following terms shall have
the meanings set forth below:



“Accelerated Maturity Date” means the date that is six months prior to the stated maturity (or
date when scheduled principal payments are due), as in effect from time to time, of the
Subordinated Notes or any replacement notes.



“Acceptable Non-Acceleration Event” means any of the following events: (a) if Gibraltar
refinances all of the outstanding Indebtedness under the Subordinated Notes with new Subordinated
Indebtedness that, by its terms, has a stated maturity (or has scheduled principal payments due) no
earlier than sixty (60) days after the last day of the Commitment Period and that is otherwise in
form and substance reasonably satisfactory to the Administrative Agent; or (b) the holders of the
Subordinated Notes agree in writing (in form and substance reasonably acceptable to Agent) to
extend the stated maturity (or date when scheduled principal payments are due) of the Subordinated
Notes to a date that is no earlier than sixty (60) days after the last day of the Commitment
Period.




“Account” means an account, as that term is defined in the U.C.C.



“Account Debtor” means an account debtor, as that term is defined in the U.C.C., or any other
Person obligated to pay all or any part of an Account in any manner and includes (without
limitation) any Guarantor thereof.


 


2









 





“Acquisition” means any transaction or series of related transactions for the purpose of or
resulting, directly or indirectly, in (a) the acquisition of all or substantially all of the assets
of any Person (other than a Company), or any business or division of any Person (other than a
Company), (b) the acquisition of in excess of fifty percent (50%) of the outstanding capital stock
(or other equity interest) of any Person (other than a Company), or (c) the acquisition of another
Person (other than a Company) by a merger, amalgamation or consolidation or any other combination
with such Person.




“Additional Commitment” means that term as defined in Section 2.10(b)(i) hereof.



“Additional Fronting Lender” means a Lender that shall have (a) agreed with the Administrative
Agent to issue a Letter of Credit hereunder in its own name, but in each instance on behalf of the
Revolving Lenders hereunder, and (b) executed with the Administrative Agent an Additional Fronting
Lender Agreement.



“Additional Fronting Lender Agreement” means an Additional Fronting Lender Agreement, prepared
by the Administrative Agent and in form and substance acceptable to the Administrative Agent, among
the Borrowers, the Administrative Agent and a Lender with respect to the issuance by such Lender of
Letters of Credit hereunder, whereby such Lender agrees to become an Additional Fronting Lender.



“Additional Lender” means an Eligible Transferee that shall become a Revolving Lender during
the Commitment Increase Period pursuant to Section 2.10(b) hereof.



“Additional Lender Assumption Agreement” means an additional lender assumption agreement, in
form and substance satisfactory to the Administrative Agent, wherein an Additional Lender shall
become a Revolving Lender.



“Additional Lender Assumption Effective Date” means that term as defined in Section
2.10(b)(ii) hereof.




“Administrative Agent” means that term as defined in the first paragraph above.



“Administrative Agent Fee Letter” means the Administrative Agent Fee Letter between the
Borrowers and the Administrative Agent, dated as of the Closing Date, as the same may from time to
time be amended, restated or otherwise modified.




“Administrative Borrower” means Gibraltar.




“Advance Record” means that term as defined in Section 2.17(a) hereof.



“Advantage” means any payment (whether made voluntarily or involuntarily, by offset of any
deposit or other indebtedness or otherwise) received by any Lender (a) prior to an Equalization
Event, in respect of the Applicable Debt, if such payment results in that Lender having less than
its pro rata share (based upon its Applicable Commitment Percentage) of the Applicable Debt then
outstanding, and (b) on and after an Equalization Event, in respect of the
Obligations, if such payment results in that Lender having less than its pro rata share (based upon
its Equalization Percentage) of the Obligations then outstanding.


 


3









 






“Affected Lender” means a Defaulting Lender, an Insolvent Lender or a Downgraded Lender.



“Affiliate” means any Person, directly or indirectly, controlling, controlled by or under
common control with a Company and “control” (including the correlative meanings, the terms
“controlling”, “controlled by” and “under common control with”) means the power, directly or
indirectly, to direct or cause the direction of the management and policies of a Company, whether
through the ownership of voting securities, by contract or otherwise.




“Affiliate Transaction” means that term as defined in Section 5.17 hereof.




“Agent” means the Administrative Agent.




“Agreement” means that term as defined in the first paragraph hereof.



“Alabama Metal Guaranty” means that certain Guaranty of Payment, dated as of the Closing Date,
by Alabama Metal Industries Corporation in favor of the Administrative Agent, as the same may from
time to time be amended, restated or otherwise modified.



“Alternate Currency” means Euros, British Pounds Sterling, Czech Republic Koruna, Polish
Zloty, Japanese Yen, Canadian Dollars or any other currency, other than Dollars, agreed to by the
Administrative Agent that shall be freely transferable and convertible into Dollars.



“Alternate Currency Exposure” means, at any time and without duplication, the sum of the
Dollar Equivalent of (a) the aggregate principal amount of Alternate Currency Loans outstanding to
the Borrowers, and (b) the Letter of Credit Exposure that is denominated in one or more Alternate
Currencies.



“Alternate Currency Loan” means a Revolving Loan described in Section 2.2(a) hereof, that
shall be denominated in an Alternate Currency and on which the Borrowers shall pay interest at a
rate based upon the Derived Alternate Currency Rate.




“Alternate Currency Maximum Amount” means Twenty-Five Million Dollars ($25,000,000).



“Alternate Currency Rate” means, with respect to an Alternate Currency Loan, for any Interest
Period, a rate per annum equal to the quotient obtained (rounded upwards, if necessary, to the
nearest 1/16th of 1%) by dividing (a) the rate of interest, determined by the
Administrative Agent in accordance with its usual procedures (which determination shall be
conclusive absent manifest error) as of approximately 11:00 A.M. (London time) two Business Days
prior to the beginning of such Interest Period pertaining to such Alternate Currency Loan, as
listed as the British Bankers Association’s London interbank offered rate, as published by Thomson


 


4









 






Reuters
or Bloomberg (or, if for any reason such rate is unavailable from Thomson Reuters or Bloomberg, from any other similar company or service that provides rate quotations comparable to
those currently provided by Thomson Reuters or Bloomberg), for deposits in the relevant Alternate
Currency in immediately available funds with a maturity comparable to such Interest Period,
provided that, in the event that such rate quotation is not available for any reason, then the
Alternate Currency Rate shall be the average (rounded upward to the nearest 1/16th of 1%) of the
per annum rates at which deposits in immediately available funds in the relevant Alternate Currency
for the relevant Interest Period and in the amount of the Alternate Currency Loan to be disbursed
or to remain outstanding during such Interest Period, as the case may be, are offered to the
Administrative Agent (or an affiliate of the Administrative Agent, in the Administrative Agent’s
discretion) by prime banks in any Alternate Currency market reasonably selected by the
Administrative Agent, determined as of 11:00 A.M. (London time) (or as soon thereafter as
practicable), two Business Days prior to the beginning of the relevant Interest Period pertaining
to such Alternate Currency Loan; by (b) 1.00 minus the Reserve Percentage.




“Applicable Commitment Percentage” means, for each Lender:




(a) with respect to the Revolving Credit Commitment, the percentage, if any, set forth
opposite such Lender’s name under the column headed “Revolving Credit Commitment
Percentage”, as set forth on Schedule 1 hereto; and




(b) with respect to the Term Loan Commitment, the percentage, if any, set forth
opposite such Lender’s name under the column headed “Term Loan Commitment Percentage”, as
set forth on Schedule 1 hereto.




“Applicable Creditor” means that term as defined in Section 12.22(b) hereof.




“Applicable Debt” means:




(a) with respect to the Revolving Credit Commitment, collectively, (i) all Indebtedness
incurred by the Borrowers to the Revolving Lenders pursuant to this Agreement and the other
Loan Documents, and includes, without limitation, the principal of and interest on all
Revolving Loans and all Swing Loans and all obligations with respect to Letters of Credit,
(ii) each extension, renewal or refinancing of the foregoing, in whole or in part, (iii) the
commitment, prepayment and other fees and amounts payable hereunder in connection with the
Revolving Credit Commitment, and (iv) all Related Expenses incurred in connection with the
foregoing; and




(b) with respect to the Term Loan Commitment, collectively, (i) all Indebtedness
incurred by the Borrowers to the Term Lenders pursuant to this Agreement and the other Loan
Documents, and includes, without limitation, the principal of and interest on the Term Loan,
(ii) each extension, renewal or refinancing of the foregoing in whole or in part, (iii) all
prepayment and other fees and amounts payable hereunder in connection with the Term Loan
Commitment, and (iv) all Related Expenses incurred in connection with the foregoing.


 


5









 






“Applicable Margin” means:




(a) for the period from the Closing Date through January 4, 2012, (i) two hundred
twenty-five (225.00) basis points for Revolving Loans that are Eurodollar Loans, (ii) two
hundred twenty-five (225.00) basis points for Revolving Loans that are Alternate Currency
Loans, (iii) one hundred twenty-five (125.00) basis points for Revolving Loans that are Base
Rate Loans, (iv) three hundred twenty-five (325.00) basis points for portions of the Term
Loan that are Eurodollar Loans, and (v) two hundred twenty-five (225.00) basis points for
portions of the Term Loan that are Base Rate Loans; and




(b) commencing January 5, 2012, the Average Quarterly Revolving Credit Availability for
the most recently completed fiscal quarter shall be used to establish the number of basis
points that will go into effect on January 5, 2012 and thereafter, as provided below:



	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	Applicable	 	 	 	 	 	 	Applicable	 	 	Applicable	 	 	Applicable	 
	 	 	Basis	 	 	Applicable	 	 	Basis	 	 	Basis	 	 	Basis	 
	 	 	Points for	 	 	Basis Points	 	 	Points for	 	 	Points for	 	 	Points for	 
	 	 	Revolving	 	 	for Revolving	 	 	Revolving	 	 	Portions of	 	 	Portions of	 
	Average	 	Loans that	 	 	Loans that	 	 	Loans that	 	 	the Term	 	 	the Term	 
	Quarterly	 	are	 	 	are Alternate	 	 	are	 	 	Loan that are	 	 	Loan that	 
	Revolving Credit	 	Eurodollar	 	 	Currency	 	 	Base Rate	 	 	Eurodollar	 	 	are Base	 
	Availability	 	Loans	 	 	Loans	 	 	Loans	 	 	Loans	 	 	Rate Loans	 
	Less than $50,000,000
	 	 	250.00	 	 	 	250.00	 	 	 	150.00	 	 	 	350.00	 	 	 	250.00	 
	Greater than or
equal to $50,000,000 and
less than $100,000,000
	 	 	225.00	 	 	 	225.00	 	 	 	125.00	 	 	 	325.00	 	 	 	225.00	 
	Greater than or
equal to $100,000,000
	 	 	200.00	 	 	 	200.00	 	 	 	100.00	 	 	 	300.00	 	 	 	200.00	 






After January 5, 2012, changes to the Applicable Margin shall be effective on the fifth day of each
fiscal quarter and shall be based on the Average Quarterly Revolving Credit Availability for the
most recently completed fiscal quarter. Anything in this definition to the contrary
notwithstanding, if the Revolving Amount is reduced for any reason, the Dollar amounts set forth in
the foregoing pricing matrix shall also be correspondingly reduced by the amount of any such
reduction in the Revolving Amount. The above pricing matrix does not modify or waive, in any
respect, the rights of the Administrative Agent and the Lenders to charge the Default Rate, or the
rights and remedies of the Administrative Agent and the Lenders pursuant to Articles VIII and IX
hereof.


 


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“Appraised Inventory NOLV Percentage” means, as determined in the most recent appraisal report
of the Inventory of the Borrowing Base Companies, completed on behalf of, and acceptable to, the
Administrative Agent, the net orderly liquidation value (expressed as a percentage of cost) of
Eligible Inventory of the Borrowing Base Companies.




“Approved Depository” means that term as defined in the definition of Cash Equivalents.



“Asset Disposition” means the sale, lease, transfer or other disposition (including by means
of sale and lease-back transactions, and by means of mergers, consolidations, amalgamations and
liquidations of a corporation, partnership or limited liability company of the interests therein of
any Company) by any Company to any Person of any of such Company’s assets; provided that the term
Asset Disposition specifically excludes (a) any sales, transfers or other dispositions of
Inventory, or obsolete, worn-out or excess furniture, fixtures, Equipment or other property, real
or personal, tangible or intangible, in each case in the ordinary course of business, and (b) any
Recovery Event.



“Assignment Agreement” means an Assignment and Acceptance Agreement in the form of the
attached Exhibit F.



“Authorized Officer” means a Financial Officer or other individual authorized by a Financial
Officer in writing (with a copy to the Administrative Agent) to handle certain administrative
matters in connection with this Agreement.



“Average Quarterly Revolving Credit Availability” means, for any fiscal quarter, the average
daily Revolving Credit Availability in effect during such fiscal quarter.



“Bailee’s Waiver” means a bailee’s waiver, in form and substance satisfactory to the
Administrative Agent, delivered by a Credit Party in connection with this Agreement, as such waiver
may from time to time be amended, restated or otherwise modified.



“Bank Product Agreements” means those certain cash management services and other agreements
entered into from time to time between a Company and the Administrative Agent or a Lender (or an
affiliate of a Lender) in connection with any of the Bank Products.



“Bank Product Obligations” means all obligations, liabilities, contingent reimbursement
obligations, fees and expenses owing by a Company to the Administrative Agent or any Lender (or an
affiliate of a Lender) pursuant to or evidenced by the Bank Product Agreements.



“Bank Products” means a service or facility extended to a Company by the Administrative Agent
or any Lender (or an affiliate of a Lender) for (a) credit cards and credit card processing
services, (b) debit cards and purchase cards, (c) ACH transactions, and (d) cash management,
including controlled disbursement, accounts or services.



“Bankruptcy Code” means Title 11 of the United States Code entitled “Bankruptcy”, as now or
hereafter in effect, or any successor thereto, as hereafter amended.


 


7









 





“Base Rate” means, for any day, a rate per annum equal to the highest of (a) the Prime Rate,
(b) one-half of one percent (.50%) in excess of the Federal Funds Effective Rate, and (c) one
hundred (100.00) basis points in excess of the London Interbank Offered Rate for loans in
Eurodollars with an Interest Period of one month (or, if such day is not a Business Day, such rate
as calculated on the most recent Business Day). Any change in the Base Rate shall be effective
immediately from and after such change in the Base Rate.



“Base Rate Loan” means a Revolving Loan described in Section 2.2(a) hereof or a portion of the
Term Loan described in Section 2.3 hereof, that shall be denominated in Dollars and on which the
Borrowers shall pay interest at a rate based on the Derived Base Rate.



“Bond Letter of Credit” means the irrevocable transferable letter of credit in the stated
amount of Four Million Eight Hundred Forty-Six Thousand Twenty-Eight and 38/100 Dollars
(4,846,028.38) issued by JPMorgan Chase Bank, N.A. to secure the payment of the Bonds.



“Bonds” means the Manhattan, Kansas Variable Rate Demand Industrial Development Revenue
Refunding Bonds (Florence Corporation of Kansas Project), Series 2003.




“Borrower” means that term as defined in the first paragraph hereof.




“Borrowers” means that term as defined in the first paragraph hereof.




“Borrowing Base” means an amount equal to the total of the following:




(a) up to eighty-five percent (85%) of the aggregate amount due and owing on Eligible
Accounts Receivable of the Borrowing Base Companies; plus




(b) the lowest of:




(i) up to sixty-five percent (65%) of the aggregate of the cost or market value
(whichever is lower), as determined on a first-in first-out basis in accordance with
GAAP, of the Eligible Inventory of the Borrowing Base Companies;




(ii) up to eighty-five percent (85%) of (A) the aggregate of the cost or market
value (whichever is lower), as determined on a first-in first-out basis in
accordance with GAAP, of the Eligible Inventory of the Borrowing Base Companies,
multiplied by (B) the Appraised Inventory NOLV Percentage; or




(iii) One Hundred Million Dollars ($100,000,000); plus




(c) the Eligible Fixed Asset Amount; minus




(d) Reserves for Designated Hedge Agreements established pursuant to Section 2.14(b)
hereof; minus




(e) other Reserves, if any;


 


8









 





provided that, anything herein to the contrary notwithstanding, the Administrative Agent shall at
all times have the right to modify or reduce such percentages or dollar amount caps from time to
time, in its reasonable credit judgment.



“Borrowing Base Certificate” means a Borrowing Base Certificate, in the form of the exhibit
attached to the Special Accounts and Borrowing Base Certificate Letter.



“Borrowing Base Company” means each Company listed on Schedule 3 hereto, and each
additional Company that shall become a Borrowing Base Company pursuant to Section 2.16 hereof.



“Business Day” means a day that is not a Saturday, a Sunday or another day of the year on
which national banks are authorized or required to close in Cleveland, Ohio, and, in addition, (a)
if the applicable Business Day relates to a Eurodollar Loan, is a day of the year on which dealings
in deposits are carried on in the London interbank Eurodollar market, and (b) if the applicable
Business Day relates to an Alternate Currency, is a day of the year on which dealings in deposits
are carried on in the relevant Alternate Currency.



“Capital Distribution” means a payment made, liability incurred or other consideration given
by a Company to any Person that is not a Company, (a) for the purchase, acquisition, redemption,
repurchase, payment or retirement of any capital stock or other equity interest of such Company, or
(b) as a dividend, return of capital or other distribution (other than any stock dividend, stock
split or other equity distribution payable only in capital stock or other equity of such Company)
in respect of such Company’s capital stock or other equity interest.



“Capital Lease” means, as applied to any Person, any lease of any property (whether real,
personal or mixed) by such Person as lessee that, in conformity with GAAP, should be accounted for
as a capital lease on the balance sheet of such Person.



“Capitalized Lease Obligations” means obligations of the Companies for the payment of rent for
any real or personal property under leases or agreements to lease that, in accordance with GAAP,
have been or should be capitalized on the books of the lessee and, for purposes hereof, the amount
of any such obligation shall be the capitalized amount thereof determined in accordance with GAAP.



“Cash Collateral Account” means a commercial Deposit Account designated “cash collateral
account” and maintained by GSCNY (for itself and the other Credit Parties) with the Administrative
Agent (or another Lender pursuant to Section 7.1(j) hereof), without liability by the
Administrative Agent or the Lenders to pay interest thereon, from which account the Administrative
Agent, on behalf of the Lenders, shall have the exclusive right to withdraw funds until all of the
Secured Obligations are paid in full.


 


9









 





“Cash Dominion De-Activation Date” means, after a Cash Dominion Effective Date, the last day
of a thirty (30) consecutive day period during which the Revolving Credit Availability
shall have been, at all times during such period, greater than Twenty-Five Million Dollars
($25,000,000) and no Event of Default shall have occurred and be continuing.



“Cash Dominion Effective Date” means a date that is the earlier of (a) the occurrence of an
Event of Default, or (b) the Revolving Credit Availability shall be less than Twenty Million
Dollars ($20,000,000); and each successive Cash Dominion Effective Date that occurs after a Cash
Dominion De-Activation Date.



“Cash Dominion Period” means each period commencing on a Cash Dominion Effective Date and
ending on the first Cash Dominion De-Activation Date occurring thereafter; provided that, should
more than two separate Cash Dominion Periods exist during any twelve (12) month period, the
existing Cash Dominion Period shall continue indefinitely at the discretion of the Administrative
Agent.




“Cash Equivalents” means any of the following:




(a) 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 one year from the date of acquisition;




(b) Dollar denominated time deposits, certificates of deposit and bankers’ acceptances
of (i) any domestic commercial bank of recognized standing having capital and surplus in
excess of Five Hundred Million Dollars ($500,000,000), or (ii) any bank (or the parent
company of such bank) whose short-term commercial paper rating from Standard & Poor’s is at
least A-1, A-2 or the equivalent thereof or from Moody’s is at least P-1, P-2 or the
equivalent thereof (any such bank, an “Approved Depository”), in each case with maturities
of not more than one hundred eighty (180) days from the date of acquisition;




(c) commercial paper issued by an Approved Depository or by the parent company of an
Approved Depository and commercial paper issued by, or guaranteed by, any industrial or
financial company with a short-term commercial paper rating of at least A-1 or the
equivalent thereof by Standard & Poor’s or at least P-1 or the equivalent thereof by
Moody’s, or guaranteed by any industrial company with a long-term unsecured debt rating of
at least A or A2, or the equivalent of each thereof, from Standard & Poor’s or Moody’s, as
the case may be, and in each case maturing within one hundred eighty (180) days after the
date of acquisition;




(d) fully collateralized repurchase agreements entered into with an Approved Depository
having a term of not more than thirty (30) days and covering securities described in subpart
(a) above;




(e) investments in money market funds substantially all the assets of which are
comprised of securities of the types described in subparts (a) through (d) above;


 


10









 






(f) investments in money market funds access to which is provided as part of “sweep”
accounts maintained with an Approved Depository;




(g) investments in industrial development revenue bonds that (i) “re-set” interest
rates not less frequently than quarterly, (ii) are entitled to the benefit of a remarketing
arrangement with an established broker dealer, and (iii) are supported by a direct pay
letter of credit covering principal and accrued interest that is issued by an Approved
Depository; and




(h) investments in pooled funds or investment accounts consisting of investments of the
nature described in the foregoing subpart (g).



“Cash Proceeds” means, with respect to (a) an Asset Disposition, the aggregate cash payments
(including any cash received by way of deferred payment pursuant to a note receivable issued in
connection with such Asset Disposition, other than the portion of such deferred payment
constituting interest, but only as and when so received) received by any Borrower or any other
Company from such Asset Disposition, and (b) any Recovery Event, the aggregate cash payments,
including all insurance proceeds and proceeds of any award for condemnation or taking, received in
connection with such Recovery Event.



“Cash Security” means all cash, instruments, Deposit Accounts, Securities Accounts and cash
equivalents, in each case whether matured or unmatured, whether collected or in the process of
collection, upon which a Credit Party presently has or may hereafter have any claim, wherever
located, including but not limited to any of the foregoing that are presently or may hereafter be
existing or maintained with, issued by, drawn upon, or in the possession of the Administrative
Agent or any Lender.



“Change in Control” means (a) the acquisition of ownership or voting control, directly or
indirectly, beneficially (within the meaning of Rules 13d-3 and 13d-5 of the Exchange Act) or of
record, on or after the Closing Date, by any Person or group (within the meaning of Sections 13d
and 14d of the Exchange Act), of shares representing more than fifty percent (50%) of the aggregate
ordinary Voting Power represented by the issued and outstanding capital stock of Gibraltar; (b) the
occupation of a majority of the seats (other than vacant seats) on the board of directors or other
governing body of Gibraltar by Persons who were neither (i) nominated by the board of directors or
other governing body of Gibraltar nor (ii) appointed by directors so nominated; (c) if Gibraltar
shall cease to own, directly or indirectly, one hundred percent (100%) of the aggregate ordinary
Voting Power represented by the issued and outstanding equity interests of GSCNY; or (d) the
occurrence of a change in control, or other term of similar import used therein, as defined in any
Material Indebtedness Agreement.



“Closing Available Liquidity” means, on the Closing Date, the sum of (a) unrestricted and
unencumbered (except as to any Lien of the Administrative Agent, for the benefit of the Lenders)
cash on hand of the Credit Parties held at financial institutions located in the United States,
plus (b) the Revolving Credit Availability (calculated after giving pro forma effect to the
Borrowers’ initial credit request under the Revolving Credit Commitment), minus (c) any fees and
expenses due under Section 4.3(y) hereof that are not paid with funds from Borrowers’
initial Credit Request under the Revolving Credit Commitment, minus (d) any accounts payable of a
Credit Party with balances over sixty (60) days past due.


 


11









 






“Closing Date” means October 11, 2011.



“Closing Fee Letter” means the Closing Fee Letter between the Borrowers and the Administrative
Agent, dated as of the Closing Date.




“Closing Revolving Amount” means Two Hundred Million Dollars ($200,000,000).



“Code” means the Internal Revenue Code of 1986, as amended, together with the rules and
regulations promulgated thereunder.



“Collateral” means (a) all of each Credit Party’s existing and future (i) personal property,
(ii) Accounts, Investment Property, instruments, contract rights, chattel paper, documents,
supporting obligations, letter-of-credit rights, Pledged Securities, Pledged Notes (if any),
Commercial Tort Claims, General Intangibles, Inventory and Equipment, (iii) funds now or hereafter
on deposit in one or more Cash Collateral Accounts, if any, and (iv) Cash Security; (b) the Real
Property; and (c) Proceeds and products of any of the foregoing.



“Collection” means any payment made from an Account Debtor to a Credit Party including, but
not limited to, cash, checks, drafts and any other form of payment.



“Commercial Tort Claim” means a commercial tort claim, as that term is defined in the U.C.C.
(Schedule 7.4 hereto lists all Commercial Tort Claims of the Credit Parties in existence as
of the Closing Date.)



“Commitment” means the obligation hereunder of the Lenders, during the Commitment Period, to
make Loans and to participate in Swing Loans and the issuance of Letters of Credit pursuant to the
Revolving Credit Commitment and the Term Loan Commitment, up to the Total Commitment Amount.



“Commitment Increase Period” means the period from the Closing Date to the date that is six
months prior to the last day of the Commitment Period.



“Commitment Period” means the period from the Closing Date to the earlier of the Accelerated
Maturity Date or October 10, 2016 (or such earlier date on which the Commitment shall have been
terminated pursuant to Article IX hereof); provided that there shall be no Accelerated Maturity
Date if an Acceptable Non-Acceleration Event shall occur prior to the Accelerated Maturity Date.



“Commodity Hedging Device” means a forward commodity purchase agreement or similar agreement
or arrangement designed to protect against fluctuations in raw material or other commodity prices
entered into by a Company.



“Companies” means all Borrowers and all Subsidiaries of all Borrowers.


 


12









 






“Company” means a Borrower or a Subsidiary of a Borrower.



“Compliance Certificate” means a Compliance Certificate in the form of the attached
Exhibit E.



“Concentration Account” means a commercial Deposit Account designated “depository
concentration account” and maintained by GSCNY (for the benefit of the Credit Parties) with the
Administrative Agent (or another Lender pursuant to Section 7.1(j) hereof), without liability by
the Administrative Agent or the Lenders to pay interest thereon, which account shall be under the
exclusive control of the Administrative Agent and, other than during a Cash Dominion Event, the
Administrative Agent shall transfer the funds therein to the Operating Account, and during a Cash
Dominion Event, the Administrative Agent shall have the exclusive right to withdraw funds and
transfer such funds to the Cash Collateral Account.



“Confidential Information” means all confidential or proprietary information about the
Companies that has been furnished by any Company to the Administrative Agent or any Lender, whether
furnished before or after the Closing Date and regardless of the manner in which it is furnished,
but does not include any such information that (a) is or becomes generally available to the public
other than as a result of a disclosure by the Administrative Agent or such Lender not permitted by
this Agreement, (b) was available to the Administrative Agent or such Lender on a nonconfidential
basis prior to its disclosure to the Administrative Agent or such Lender, or (c) becomes available
to the Administrative Agent or such Lender on a nonconfidential basis from a Person other than a
Company.



“Consideration” means, in connection with an Acquisition, the aggregate consideration paid or
to be paid, including borrowed funds, cash, deferred payments, the issuance of securities or notes,
the assumption or incurring of liabilities (direct or contingent), the payment of consulting fees
or fees for a covenant not to compete and any other consideration paid or to be paid for such
Acquisition.



“Consignee’s Waiver” means a consignee’s waiver (or similar agreement), in form and substance
reasonably satisfactory to the Administrative Agent, delivered by a Credit Party in connection with
this Agreement, as such waiver may from time to time be amended, restated or otherwise modified.



“Consolidated” means the resultant consolidation of the financial statements of Gibraltar and
its Subsidiaries in accordance with GAAP, including principles of consolidation consistent with
those applied in preparation of the consolidated financial statements referred to in Section 6.14
hereof.



“Consolidated Capital Expenditures” means, for any period, the amount of capital expenditures
(whether paid in cash or accrued as liabilities and including in all events amounts expended or
capitalized under Capital Leases and Synthetic Leases but excluding any amount representing
capitalized interest) by Gibraltar during such period that, as determined on a
Consolidated basis, are included (or are required to be included) in the property, plant or
equipment reflected in the Consolidated balance sheet of Gibraltar.


 


13









 





“Consolidated Depreciation and Amortization Charges” means, for any period, the aggregate of
all depreciation and amortization charges for fixed assets, leasehold improvements and general
intangibles (specifically including goodwill) of Gibraltar for such period, as determined on a
Consolidated basis.




“Consolidated EBITDA” means, for any period, as determined on a Consolidated basis:




(a) Consolidated Net Earnings for such period plus, without duplication, the aggregate
amounts deducted in determining such Consolidated Net Earnings in respect of (i)
Consolidated Interest Expense, (ii) Consolidated Income Tax Expense, (iii) Consolidated
Depreciation and Amortization Charges, (iv) extraordinary and other non-recurring non-cash
losses and charges, and (v) non-cash equity based compensation expenses; minus




(b) to the extent included in Consolidated Net Earnings for such period, gains on sales
of assets and other extraordinary gains and other non-recurring gains not incurred in the
ordinary course of business.



“Consolidated Fixed Charges” means, for any period, as determined on a Consolidated basis, the
aggregate, without duplication, of (a) Consolidated Interest Expense, (b) Capitalized Lease
Obligations, (c) scheduled principal payments on Consolidated Funded Indebtedness (other than
optional prepayments of the Revolving Loans and optional prepayments and Mandatory Prepayments of
the Term Loan), and (d) cash payments of deferred purchase price obligations (such as earn-outs and
similar obligations) incurred in connection with Acquisitions.



“Consolidated Funded Indebtedness” means, at any date, all Indebtedness (including, but not
limited to, short-term, long-term and Subordinated Indebtedness, if any) of Gibraltar, as
determined on a Consolidated basis.



“Consolidated Income Tax Expense” means, for any period, all provisions for taxes based on the
gross or net income of Gibraltar (including, without limitation, any additions to such taxes, and
any penalties and interest with respect thereto), as determined on a Consolidated basis.



“Consolidated Interest Expense” means, for any period, the interest expense (including,
without limitation, the “imputed interest” portion of Capitalized Lease Obligations, synthetic
leases and asset securitizations, if any) of Gibraltar for such period with respect to Indebtedness
(including, without limitation, all commissions, discounts and other fees and charges owed with
respect to letters of credit and net costs under Hedge Agreements) of Gibraltar, as determined on a
Consolidated basis.



“Consolidated Net Earnings” means, for any period, the net income (loss) of Gibraltar for such
period, as determined on a Consolidated basis.


 


14









 





“Consolidated Net Worth” means, at any date, the stockholders’ equity of Gibraltar, determined
as of such date on a Consolidated basis.



“Consolidated Unfunded Capital Expenditures” means, for any period, Consolidated Capital
Expenditures that are not directly financed by the Companies with long-term Indebtedness (other
than Revolving Loans) or Capitalized Lease Obligations, as determined on a Consolidated basis.



“Control Agreement” means a Deposit Account Control Agreement or a Securities Account Control
Agreement.



“Controlled Disbursement Account” means a commercial Deposit Account designated “controlled
disbursement account” and maintained by one or more Credit Parties with the Administrative Agent
(or another Lender pursuant to Section 7.1(j) hereof), without liability by the Administrative
Agent or the Lenders to pay interest thereon.



“Controlled Group” means a Company and each Person required to be aggregated with a Company
under Code Section 414(b), (c), (m) or (o).



“Credit Event” means the making by the Lenders of a Loan, the conversion by the Lenders of a
Base Rate Loan to a Eurodollar Loan, the continuation by the Lenders of a Eurodollar Loan after the
end of the applicable Interest Period, the making by the Swing Line Lender of a Swing Loan, or the
issuance (or amendment or renewal) by a Fronting Lender of a Letter of Credit.



“Credit Exposure” means, at any time, with respect to a Specific Commitment, the sum of (a)
the aggregate principal amount of all Loans outstanding under such Specific Commitment, and (b) the
Letter of Credit Exposure, if any, applicable to such Specific Commitment.



“Credit Party” means a Borrower and any Subsidiary or other Affiliate that is a Guarantor of
Payment.



“Currency Hedge Agreement” means any currency swap agreement, forward currency purchase
agreement or similar arrangement or agreement designed to protect against fluctuations in currency
exchange rates entered into by a Company.



“Default” means an event or condition that constitutes, or with the lapse of any applicable
grace period or the giving of notice or both would constitute, an Event of Default, and that has
not been waived by the Required Lenders (or, if required hereunder, all of the Lenders) in writing.



“Default Rate” means (a) with respect to any Loan or other Obligation for which a rate is
specified, a rate per annum equal to two percent (2%) in excess of the rate otherwise applicable
thereto, and (b) with respect to any other amount, if no rate is specified or available, a rate per
annum equal to two percent (2%) in excess of the Derived Base Rate for Revolving Loans from time to
time in effect.


 


15









 





“Defaulting Lender” means a Lender, as reasonably determined by the Administrative Agent, that
(a) has failed (which failure has not been cured) to fund any Loan or any participation interest in
Letters of Credit required to be made hereunder in accordance with the terms hereof (unless such
Lender shall have notified the Administrative Agent and the Administrative Borrower in writing of
its good faith determination that a condition under Section 4.1 hereof to its obligation to fund
any Loan shall not have been satisfied); (b) has notified the Administrative Borrower or the
Administrative Agent in writing that it does not intend to comply with any of its funding
obligations under this Agreement or has made a public statement to the effect that it does not
intend to comply with its funding obligations under this Agreement or generally under other
agreements in which it commits to extend credit; (c) has failed, within three Business Days after
receipt of a written request from the Administrative Agent or the Administrative Borrower to
confirm that it will comply with the terms of this Agreement relating to its obligation to fund
prospective Loans or participations in Letters of Credit, and such request states that the
requesting party has reason to believe that the Lender receiving such request may fail to comply
with such obligation, and states such reason; or (d) has failed to pay to the Administrative Agent
or any other Lender when due an amount owed by such Lender to the Administrative Agent or any other
Lender pursuant to the terms of this Agreement, unless such amount is subject to a good faith
dispute or such failure has been cured. Any Defaulting Lender shall cease to be a Defaulting
Lender when the Administrative Agent determines, in its reasonable discretion, that such Defaulting
Lender is no longer a Defaulting Lender based upon the characteristics set forth in this
definition.




“Deposit Account” means a deposit account, as that term is defined in the U.C.C.



“Deposit Account Control Agreement” means each Deposit Account Control Agreement among a
Credit Party, the Administrative Agent and a depository institution, dated prior to, on or after
the Closing Date, to be in form and substance satisfactory to the Administrative Agent, as the same
may from time to time be amended, restated or otherwise modified.



“Derived Alternate Currency Rate” means a rate per annum equal to the sum of the Applicable
Margin (from time to time in effect) for Alternate Currency Loans plus the Alternate Currency Rate
applicable to the relevant Alternate Currency.



“Derived Base Rate” means a rate per annum equal to the sum of the Applicable Margin (from
time to time in effect) for Base Rate Loans plus the Base Rate.



“Derived Eurodollar Rate” means a rate per annum equal to the sum of the Applicable Margin
(from time to time in effect) for Eurodollar Loans plus the Eurodollar Rate.



“Designated Hedge Agreement” means any Hedge Agreement (other than a Commodity Hedging Device)
to which any Credit Party is a party and as to which a Lender or any of its affiliates is a
counterparty that, pursuant to a written instrument signed by the Administrative Agent, has been
designated as a Designated Hedge Agreement, so that such Credit Party’s counterparty’s credit
exposure thereunder will be entitled to share in the benefits of the Guaranties of Payment and the
Security Documents to the extent such Loan Documents provide
guarantees or security for creditors of such Credit Party under Designated Hedge Agreements. Any
such Hedge Agreement shall cease to be a Designated Hedge Agreement if its termination date is
extended, notional amount increased, or fixed rate payable by a Credit Party increased, without the
prior written consent of the Administrative Agent.


 


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“Designated Hedge Creditor” means each Lender, or affiliate of a Lender, that participates as
a counterparty to a Credit Party pursuant to any Designated Hedge Agreement with such Lender or
affiliate of such Lender.



“Designated Hedge Document” means (a) each Designated Hedge Agreement to which a Credit Party
is now or may hereafter become a party, and (b) each confirmation, transaction statement or other
document executed and delivered in connection therewith to which a Credit Party is now or may
hereafter become a party.



“Designated Hedge Obligations” means all obligations and liabilities of one or more Credit
Parties under Designated Hedge Documents, in all cases whether now existing, or hereafter incurred
or arising, including any such amounts incurred or arising during the pendency of any bankruptcy,
insolvency, reorganization, receivership or similar proceeding, regardless of whether allowed or
allowable in such proceeding or subject to an automatic stay under Section 362(a) of the Bankruptcy
Code.



“Diamond Perforated Guaranty” means that certain Guaranty of Payment, dated as of the Closing
Date, by Diamond Perforated Metals, Inc. in favor of the Administrative Agent, as the same may from
time to time be amended, restated or otherwise modified.



“Dodd-Frank Act” means the Dodd-Frank Wall Street Reform and Consumer Protection Act (Pub.L.
111-203, H.R. 4173) signed into law on July 21, 2010, as amended from time to time.




“Dollar”
or the $ sign means lawful money of the United States of America.



“Dollar Equivalent” means (a) with respect to an Alternate Currency Loan or Letter of Credit
denominated in an Alternate Currency, the Dollar equivalent of the amount of such Alternate
Currency Loan or Letter of Credit denominated in such Alternate Currency, determined by the
Administrative Agent on the basis of its spot rate at approximately 11:00 A.M. (London time) on the
date two Business Days before the date of such Alternate Currency Loan or issuance of such Letter
of Credit denominated in such Alternate Currency, for the purchase of the relevant Alternate
Currency with Dollars for delivery on the date of such Alternate Currency Loan or Letter of Credit,
and (b) with respect to any other amount, if such amount is denominated in Dollars, then such
amount in Dollars and, otherwise the Dollar equivalent of such amount, determined by the
Administrative Agent on the basis of its spot rate at approximately 11:00 A.M. (London time) on the
date for which the Dollar equivalent amount of such amount is being determined, for the purchase of
the relevant alternate currency with Dollars for delivery on such date; provided that, in
calculating the Dollar Equivalent for purposes of determining (i) a Borrower’s obligation to prepay
Loans and Letters of Credit pursuant to Section 2.12(a) hereof, or (ii) a Borrower’s ability to
request additional Loans or Letters of
Credit pursuant to the Commitment, the Administrative Agent may, in its discretion, on any Business
Day selected by the Administrative Agent (prior to payment in full of the Obligations), calculate
the Dollar Equivalent of each such Loan or Letter of Credit. The Administrative Agent shall notify
the Administrative Borrower of the Dollar Equivalent of such Alternate Currency Loan or Letter of
Credit or any other amount, at the time that such Dollar Equivalent shall have been determined.


 


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“Domestic Subsidiary” means a Subsidiary that is not a Foreign Subsidiary.



“Downgraded Lender” means a Lender that has a non-credit enhanced senior unsecured debt rating
below investment grade from either Moody’s or Standard & Poor’s or any other nationally recognized
statistical rating organization recognized as such by the SEC, and that has been designated by the
Administrative Agent, in its reasonable discretion, as a Downgraded Lender. Any Downgraded Lender
shall cease to be a Downgraded Lender when the Administrative Agent determines, in its reasonable
discretion, that such Downgraded Lender is no longer a Downgraded Lender based upon the
characteristics set forth in this definition.



“Eligible Account Receivable” means an Account that is an account receivable (i.e., each
specific invoice) of a Borrowing Base Company that, at all times until it is collected in full,
continuously meets the following requirements:




(a) is not subject to any claim for credit, allowance or adjustment by the Account
Debtor or any defense, dispute, set-off, chargeback or counterclaim;




(b) arose in the ordinary course of business of such Borrowing Base Company from the
performance (fully completed) of services or bona fide sale of goods that have been shipped
to the Account Debtor, and not more than ninety (90) days (except as provided in the Special
Accounts and Borrowing Base Certificate Letter) have elapsed since the invoice date;




(c) is not owing from an Account Debtor with respect to which such Borrowing Base
Company has received any notice or has any knowledge of such Account Debtor’s insolvency,
bankruptcy or material financial impairment, or that such Account Debtor has suspended
normal business operations (other than a temporary suspension acceptable to the
Administrative Agent, in its sole discretion), dissolved, liquidated or terminated its
existence;




(d) is not subject to an assignment, pledge, claim, mortgage, lien or security interest
of any type except that granted to or in favor of the Administrative Agent, for the benefit
of the Lenders;




(e) does not relate to any goods repossessed, lost, damaged, rejected or returned, or
acceptance of which has been revoked or refused;




(f) is not evidenced by a promissory note or any other instrument or by chattel paper;


 


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(g) has not been determined by the Administrative Agent to be unsatisfactory in any
respect in the exercise of its reasonable credit judgment;




(h) is not a Government Account Receivable, unless the security interest of the
Administrative Agent, for the benefit of the Lenders, in such Government Account Receivable
is filed in accordance with the Federal Assignment of Claims Act; provided that such
requirement shall not be applicable to Government Accounts Receivable payable from the
United States Postal Service except during a Cash Dominion Period;




(i) is not owing from another Company, an Affiliate, an equity holder or an employee of
such Company;




(j) is not a Foreign Account Receivable, other than a Foreign Account Receivable the
payment of which is guaranteed by a letter of credit issued to the Administrative Agent, on
behalf of the Lenders, as beneficiary, in form and substance and issued by a financial
institution satisfactory to the Administrative Agent, in its sole discretion;




(k) is not owing from an Account Debtor that has failed to pay more than fifty percent
(50%) of its currently outstanding accounts receivable within ninety (90) days of the
invoice date;




(l) with respect to an Account Debtor that, together with its affiliates, owes one or
more Borrowing Base Companies more than twenty-five percent (25%) of all accounts receivable
of one or more Borrowing Base Companies, is not the portion of the Accounts that represents
the amount in excess of twenty-five percent (25%) of such accounts receivable;




(m) is an Account in which the Administrative Agent, for the benefit of the Lenders,
has a valid and enforceable first priority security interest;




(n) has not arisen in connection with sales of goods that were shipped or delivered to
an Account Debtor on consignment, a sale or return basis, a guaranteed sale basis, a bill
and hold basis, or on the basis of any similar understanding;




(o) is not subject to any provision prohibiting assignment of the right to payment or
requiring notice of or consent to such assignment;




(p) is not owing from an Account Debtor located in a state that requires that such
Borrowing Base Company, in order to sue such Account Debtor in such state’s courts or
otherwise enforce its remedies against such Account Debtor through judicial process, to
either (i) qualify to do business in such state or (ii) file a report with the taxation
division of such state for the then current year, unless, in each case, such Borrowing Base
Company has fulfilled such requirements to the extent applicable for the then current year
or fulfilled such other requirements that permits such Borrowing Base
Company to bring suit or otherwise enforce its remedies against such Account Debtor through
judicial process;


 


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(q) is not an Account with respect to which any of the representations, warranties,
covenants and agreements contained in this Agreement or any of the Loan Documents are not or
have ceased to be complete and correct in any material respect, or have been breached;




(r) is not an Account that represents a progress billing (for the purposes hereof,
“progress billing” means any invoice for goods sold or leased or services rendered under a
contract or agreement pursuant to which the Account Debtor’s obligation to pay such invoice
is conditioned upon such Borrowing Base Company’s completion of any further performance
under the contract or agreement);




(s) is not owing by any state or any department, agency, or instrumentality thereof
unless such Borrowing Base Company has complied with any applicable statutory or regulatory
requirements thereof in respect of the security interest of the Administrative Agent, for
the benefit of the Lenders, as granted hereunder;




(t) is not owing from an Account Debtor that is also a supplier to or creditor of any
Borrowing Base Company to the extent of the amount owing to such supplier or creditor; and




(u) does not represent a manufacturer’s or supplier’s credits, discounts, incentive
plans or similar arrangements entitling any Borrowing Base Company to discounts on future
purchases therefrom.



“Eligible Equipment” means Equipment of a Credit Party that meets all of the following
conditions: (a) in which the Administrative Agent, for the benefit of the Lenders, has a first
(other than a possessory lien for the cost of repair of such Equipment) perfected security
interest, (b) that is not subject to a certificate of title or other instrument or document that
evidences title, (c) that has been appraised by an appraiser satisfactory to the Administrative
Agent, (d) that is located on real property or facilities owned by a Credit Party or, if located on
real property or facilities leased by a Credit Party, an acknowledged Landlord’s Waiver
satisfactory to the Administrative Agent has been received by the Administrative Agent, or
reserves, satisfactory to the Administrative Agent, have been established with respect thereto, and
(e) that is otherwise considered eligible by the Administrative Agent, in its reasonable credit
judgment.




“Eligible Fixed Asset” means Eligible Equipment or Eligible Real Property.




“Eligible Fixed Asset Amount” means:




(a) up to seventy percent (70%) of the fair market value of Eligible Real Property;
plus




(b) up to eighty percent (80%) of the net orderly liquidation value of Eligible
Equipment;


 


20









 





provided that (i) the Eligible Fixed Asset Amount shall be decreased on September 30, 2012 and on
the last day of each fiscal quarter of Gibraltar thereafter by an amount equal to five percent (5%)
of the Eligible Fixed Asset Amount as determined on the Closing Date, (ii) if any Eligible Fixed
Asset that was part of the Eligible Fixed Asset Amount calculation is sold or otherwise disposed of
after the Closing Date, the amount attributable to such Eligible Fixed Asset in the calculation
above shall be subtracted from the Eligible Fixed Asset Amount, and (iii) Section 2.15 hereof shall
permit certain additions to the Eligible Fixed Asset Amount under the conditions set forth therein.



“Eligible Inventory” means all Inventory of a Borrowing Base Company in which the
Administrative Agent, for the benefit of the Lenders, has a valid and enforceable first security
interest, except Inventory that:




(a) is in transit or located outside of the United States;




(b) is in the possession of a bailee, consignee or other third party, unless (i)
reserves, satisfactory to the Administrative Agent, have been established with respect
thereto; or (ii) (A) with respect to a consignee, processor or bailee, a Consignee’s Waiver,
Processor’s Waiver or Bailee’s Waiver, as the case may be, has been received by the
Administrative Agent, (B) such third party is listed on Schedule 6.9 hereto, as
amended from time to time, or the Administrative Agent has received prior written notice of
such third party location, (C) if required by the Administrative Agent, proper notice has
been given to all secured parties of such third party that have filed U.C.C. Financing
Statements claiming a security interest in such third party’s inventory, and (D) with
respect to a consignee or processor, the Administrative Borrower has filed appropriate
U.C.C. Financing Statements to protect such Borrowing Base Company’s interest therein, in
form and substance satisfactory to the Administrative Agent;




(c) is located on facilities leased by such Borrowing Base Company, unless an
acknowledged Landlord’s Waiver has been received by the Administrative Agent, or reserves,
satisfactory to the Administrative Agent, have been established with respect thereto;




(d) is work-in-process;




(e) is slow-moving, damaged, defective or obsolete;




(f) consists of (i) goods not held for sale, such as labels, maintenance items,
supplies and packaging, or held for return to vendors, or (ii) Inventory used in connection
with research and development;




(g) is held for return to vendors;


 


21









 






(h) is subject to a Lien in favor of any Person other than the Administrative Agent; or




(i) is determined by the Administrative Agent to be unsatisfactory in any respect, in
the exercise of its reasonable credit judgment.



“Eligible Real Property” means Real Property that meets all of the following conditions: (a)
in which the Administrative Agent, for the benefit of the Lenders, has a first (subject only to
exceptions agreed to by the Administrative Agent, which exceptions shall be typical of transactions
of this nature and shall not include the securing of Indebtedness incurred for borrowed money)
perfected Lien, (b) with respect to which an appraisal that meets the requirements of the Financial
Institutions Reform, Recovery and Enforcement Act of 1989 has been obtained from an appraiser
satisfactory to the Administrative Agent, and (c) that is otherwise considered eligible (based upon
environmental reports and other factors) by the Administrative Agent, in the exercise of its
reasonable credit judgment.



“Eligible Transferee” means a commercial bank, financial institution or other “accredited
investor” (as defined in SEC Regulation D) that is not a Borrower, a Subsidiary or an Affiliate.



“Environmental Laws” means all provisions of law (including the common law), statutes,
ordinances, codes, rules, guidelines, policies, procedures, orders in council, regulations,
permits, licenses, judgments, writs, injunctions, decrees, orders, awards and standards promulgated
by a Governmental Authority or by any court, agency, instrumentality, regulatory authority or
commission of any of the foregoing concerning environmental health or safety and protection of, or
regulation of the discharge of substances into, the environment.



“Environmental Permits” means all permits, licenses, authorizations, certificates, approvals
or registrations required by any Governmental Authority under any Environmental Laws.



“Equalization Event” means the earlier of (a) the occurrence of an Event of Default under
Section 8.12 hereof, or (b) the acceleration of the maturity of the Obligations after the
occurrence of an Event of Default.




“Equalization Maximum Amount” means that term as defined in Section 9.5(b)(i) hereof.




“Equalization Percentage” means that term as defined in Section 9.5(b)(ii) hereof.




“Equipment” means equipment, as that term is defined in the U.C.C.



“Equity Interests” means (a) all of the issued and outstanding shares of all classes of
capital stock of any corporation at any time directly owned by any Credit Party and the
certificates representing such capital stock, (b) all of the membership interests in a limited
liability company at any time owned or held by any Credit Party, and (c) all of the equity
interests in any other form of organization at any time owned or held by any Credit Party.


 


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“ERISA” means the Employee Retirement Income Security Act of 1974, as amended from time to
time, and the regulations promulgated pursuant thereto.



“ERISA Event” means (a) the existence of a condition or event with respect to an ERISA Plan
that presents a risk of the imposition of an excise tax or any other liability on a Company or of
the imposition of a Lien on the assets of a Company; (b) the engagement by a Controlled Group
member in a non-exempt “prohibited transaction” (as defined under ERISA Section 406 or Code Section
4975) or a breach of a fiduciary duty under ERISA that could result in liability to a Company; (c)
the application by a Controlled Group member for a waiver from the minimum funding requirements of
Code Section 412 or ERISA Section 302 or a Controlled Group member is required to provide security
under Code Section 401(a)(29) or ERISA Section 307; (d) the occurrence of a Reportable Event with
respect to any Pension Plan as to which notice is required to be provided to the PBGC; (e) the
withdrawal by a Controlled Group member from a Multiemployer Plan in a “complete withdrawal” or a
“partial withdrawal” (as such terms are defined in ERISA Sections 4203 and 4205, respectively); (f)
the involvement of, or occurrence or existence of any event or condition that makes likely the
involvement of, a Multiemployer Plan in any reorganization under ERISA Section 4241; (g) the
failure of an ERISA Plan (and any related trust) that is intended to be qualified under Code
Sections 401 and 501 to be so qualified or the failure of any “cash or deferred arrangement” under
any such ERISA Plan to meet the requirements of Code Section 401(k); (h) the taking by the PBGC of
any steps to terminate a Pension Plan or appoint a trustee to administer a Pension Plan, or the
taking by a Controlled Group member of any steps to terminate a Pension Plan (other than in the
ordinary course of business in connection with an Acquisition); (i) the failure by a Controlled
Group member or an ERISA Plan to satisfy, in all material respects, any requirements of law
applicable to an ERISA Plan; (j) the commencement, existence or threatening of a claim, action or
suit with respect to an ERISA Plan, other than a routine claim for benefits; or (k) any incurrence
by or any expectation of the incurrence by a Controlled Group member of any liability for
post-retirement benefits under any Welfare Plan, other than as required by ERISA Section 601,
et. seq. or Code Section 4980B.



“ERISA Plan” means an “employee benefit plan” (within the meaning of ERISA Section 3(3)) that
a Controlled Group member at any time sponsors, maintains, contributes to, has liability with
respect to or has an obligation to contribute to such plan.



“Eurocurrency Liabilities” shall have the meaning assigned to that term in Regulation D of the
Board of Governors of the Federal Reserve System, as in effect from time to time.



“Eurodollar” means a Dollar denominated deposit in a bank or branch outside of the United
States.



“Eurodollar Loan” means a Revolving Loan described in Section 2.2(a) hereof, or a portion of
the Term Loan described in Section 2.3 hereof, that shall be denominated in Dollars and on which
the Borrowers shall pay interest at a rate based upon the Derived Eurodollar Rate.


 


23









 





“Eurodollar Rate” means, with respect to a Eurodollar Loan, for any Interest Period, a rate
per annum equal to the quotient obtained (rounded upwards, if necessary, to the nearest
1/16th of 1%) by dividing (a) the rate of interest, determined by the Administrative
Agent in accordance with its usual procedures (which determination shall be conclusive absent
manifest error) as of approximately 11:00 A.M. (London time) two Business Days prior to the
beginning of such Interest Period pertaining to such Eurodollar Loan, as listed as the British
Bankers Association’s London interbank offered rate, as published by Thomson Reuters or Bloomberg
(or, if for any reason such rate is unavailable from Thomson Reuters or Bloomberg, from any other
similar company or service that provides rate quotations comparable to those currently provided by
Thomson Reuters or Bloomberg), for Dollar deposits in immediately available funds with a maturity
comparable to such Interest Period, provided that, in the event that such rate quotation is not
available for any reason, then the Eurodollar Rate shall be the average (rounded upward to the
nearest 1/16th of 1%) of the per annum rates at which deposits in immediately available funds in
Dollars for the relevant Interest Period and in the amount of the Eurodollar Loan to be disbursed
or to remain outstanding during such Interest Period, as the case may be, are offered to the
Administrative Agent (or an affiliate of the Administrative Agent, in the Administrative Agent’s
discretion) by prime banks in any Eurodollar market reasonably selected by the Administrative
Agent, determined as of 11:00 A.M. (London time) (or as soon thereafter as practicable), two
Business Days prior to the beginning of the relevant Interest Period pertaining to such Eurodollar
Loan; by (b) 1.00 minus the Reserve Percentage.



“Event of Default” means an event or condition that shall constitute an event of default as
defined in Article VIII hereof.



“Excess Cash Flow” means, for any fiscal year of Gibraltar, as determined on a Consolidated
basis, an amount equal to (a) the sum, without duplication, of (i) Consolidated EBITDA, plus (ii)
non-recurring restructuring expenses paid in cash and reasonably acceptable to the Administrative
Agent; minus (b) the sum, without duplication, of (1) the aggregate amount of the scheduled
principal payments made with respect to Consolidated Funded Indebtedness, (2) the aggregate amount
of optional principal payments of the Term Loan (for clarification purposes, any prepayments made
pursuant to Section 2.12 hereof shall not be included in this subpart (2)), (3) Consolidated
Interest Expense paid in cash, (4) Consolidated Income Tax Expense paid in cash (net of tax refunds
received in cash), (5) Consolidated Capital Expenditures, and (6) costs and expenses incurred in
connection with the consummation of an Acquisition permitted pursuant to Section 5.13 and not
funded with Consolidated Funded Indebtedness.




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



“Excluded Taxes” means, in the case of the Administrative Agent and each Lender, taxes imposed
on or measured by its overall net income or branch profits, and franchise taxes imposed on it (in
lieu of net income taxes), by the jurisdiction (or any political subdivision thereof) under the
laws of which the Administrative Agent or such Lender, as the case may be, is organized or in which
its principal office is located, or, in the case of any Lender, in which its applicable lending
office is located.




“Existing Letter of Credit” means that term as defined in Section 2.2(b)(vii) hereof.


 


24









 





“Federal Funds Effective Rate” means, for any day, the rate per annum (rounded upward to the
nearest one one-hundredth of one percent (1/100 of 1%)) announced by the Federal Reserve Bank of
New York (or any successor) on such day as being the weighted average of the rates on overnight
federal funds transactions arranged by federal funds brokers on the previous trading day, as
computed and announced by such Federal Reserve Bank (or any successor) in substantially the same
manner as such Federal Reserve Bank computes and announces the weighted average it refers to as the
“Federal Funds Effective Rate” as of the Closing Date.



“Financial Officer” means any of the following officers: chief executive officer, president,
senior vice president, chief financial officer or treasurer. Unless otherwise qualified, all
references to a Financial Officer in this Agreement shall refer to a Financial Officer of the
Administrative Borrower.



“First Term Loan Principal Payment Date” means the first Regularly Scheduled Payment Date
following the Term Loan Funding Date, or, if the first Regularly Scheduled Payment Date following
the Term Loan Funding Date is less than thirty (30) days from the Term Loan Funding Date, then the
next subsequent Regularly Scheduled Payment Date.



“Fixed Charge Coverage Ratio” means, as determined for the most recently completed four fiscal
quarters of Gibraltar, on a Consolidated basis, the ratio of (a) (i) Consolidated EBITDA, minus
(ii) Consolidated Unfunded Capital Expenditures, minus (iii) Consolidated Income Tax Expense paid
in cash (net of tax refunds received in cash) but excluding taxes paid in cash that are
specifically attributable to the gain from the United Steel Products and Renown Disposition, minus
(iv) Capital Distributions; to (b) Consolidated Fixed Charges.



“Foreign Account Receivable” means an Account that arises out of contracts with or orders from
an Account Debtor that is not a resident of the United States or Canada.



“Foreign Benefit Plan” means each material plan, fund, program or policy established under the
law of a jurisdiction other than the United States (or a state or local government thereof),
whether formal or informal, funded or unfunded, insured or uninsured, providing employee benefits,
including medical, hospital care, dental, sickness, accident, disability, life insurance, pension,
retirement or savings benefits, under which one or more Companies have any liability with respect
to any employee or former employee, but excluding any Foreign Pension Plan.



“Foreign Pension Plan” means a pension plan required to be registered under the law of a
jurisdiction other than the United States (or a state or local government thereof), that is
maintained or contributed to by one or more Companies for their employees or former employees.



“Foreign Subsidiary” means a Subsidiary that is organized under the laws of any jurisdiction
other than the United States, any State thereof or the District of Columbia.


 


25









 





“Fronting Lender” means, as to any Letter of Credit transaction hereunder, the Administrative
Agent as issuer of the Letter of Credit, or, in the event that the Administrative
Agent either shall be unable to issue or the Administrative Agent shall agree that another
Revolving Lender may issue, a Letter of Credit, such other Revolving Lender as shall agree to issue
the Letter of Credit in its own name, but in each instance on behalf of the Revolving Lenders
hereunder, with such other Lender being an Additional Fronting Lender, or (b) as to any Existing
Letter of Credit, the Lender that issued such Letter of Credit.



“GAAP” means generally accepted accounting principles in the United States as then in effect,
which shall include the official interpretations thereof by the Financial Accounting Standards
Board, applied on a basis consistent with the past accounting practices and procedures of
Gibraltar.



“General Intangibles” means (a) general intangibles, as that term is defined in the U.C.C.;
and (b) choses in action, causes of action, intellectual property, customer lists, corporate or
other business records, inventions, designs, patents, patent applications, service marks,
registrations, trade names, trademarks, copyrights, licenses, goodwill, computer software, rights
to indemnification and tax refunds.




“Gibraltar” means that term as defined in the first paragraph hereof.



“Government Account Receivable” means an Account that arises out of contracts with or orders
from the United States or any of its departments, agencies or instrumentalities.



“Governmental Authority” means any nation or government, any state, province or territory or
other political subdivision thereof, any governmental agency, department, authority,
instrumentality, regulatory body, court, central bank or other governmental entity exercising
executive, legislative, judicial, taxing, regulatory or administrative functions of or pertaining
to government, any securities exchange and any self-regulatory organization exercising such
functions.



“Guarantor” means a Person that shall have pledged its credit or property in any manner for
the payment or other performance of the indebtedness, contract or other obligation of another and
includes (without limitation) any guarantor (whether of payment or of collection), surety,
co-maker, endorser or Person that shall have agreed conditionally or otherwise to make any
purchase, loan or investment in order thereby to enable another to prevent or correct a default of
any kind.



“Guarantor of Payment” means each of the Companies designated a “Guarantor of Payment” on
Schedule 2 hereto, each of which is executing and delivering a Guaranty of Payment on the
Closing Date, and any other Subsidiary that shall execute and deliver a Guaranty of Payment to the
Administrative Agent, or become a party by joinder to the Guaranty of Payment that was executed on
the Closing Date, subsequent to the Closing Date.



“Guaranty of Payment” means (a) the Fourth Amended and Restated Subsidiary Guaranty executed
and delivered on the Closing Date in connection with this Agreement by the Guarantors of Payment
(other than Alabama Metal Industries Corporation, Diamond Perforated Metals, Inc. and
Noll/Norwesco, LLC), (b) the Alabama Metal Guaranty, (c) the Diamond
Perforated Guaranty, (d) the Noll/Norwesco Guaranty, and (e) any other guaranty of payment executed
and delivered subsequent to the Closing Date by a Guarantor of Payment, in each case, as the same
may from time to time be amended, restated or otherwise modified.


 


26









 





“Guaranty of Payment Joinder” means each Guaranty of Payment Joinder, executed and delivered
by a Guarantor of Payment for the purpose of adding such Guarantor of Payment as a party to a
previously executed Guaranty of Payment.




“GSCNY” means that term as defined in the first paragraph hereof.



“Hedge Agreement” means any Interest Rate Hedge Agreement, Currency Hedge Agreement or
Commodity Hedging Device.



“Immaterial Deposit Account” means a Deposit Account maintained by a Credit Party that, at all
times, has a balance of less than Fifty Thousand Dollars ($50,000); provided that the Immaterial
Deposit Accounts of all Credit Parties shall not, at any time, aggregate in excess of Two Hundred
Thousand Dollars ($200,000).



“Indebtedness” means, for any Company, without duplication, (a) all obligations to repay
borrowed money, direct or indirect, incurred, assumed, or guaranteed, (b) all obligations in
respect of the deferred purchase price of property or services (other than trade accounts payable
in the ordinary course of business and accrued expenses and deferred taxes incurred and paid in the
ordinary course of business), (c) all obligations under conditional sales or other title retention
agreements, (d) all obligations (contingent or otherwise) under any letter of credit or banker’s
acceptance, (e) all net obligations under any currency swap agreement, interest rate swap, cap,
collar or floor agreement or other interest rate management device or any Hedge Agreement, (f) all
Synthetic Leases, (g) all Capitalized Lease Obligations, (h) all obligations of such Company with
respect to asset securitization financing programs to the extent that there is recourse against
such Company or such Company is liable (contingent or otherwise) under any such program, (i) all
obligations to advance funds to, or to purchase assets, property or services from, any other Person
in order to maintain the financial condition of such Person, (j) all indebtedness of the types
referred to in subparts (a) through (i) above of any partnership or joint venture (other than a
joint venture that is itself a corporation or limited liability company) in which such Company is a
general partner or joint venturer, unless such indebtedness is expressly made non-recourse to such
Company, (k) any other transaction (including forward sale or purchase agreements) having the
commercial effect of a borrowing of money entered into by such Company to finance its operations or
capital requirements, and (l) any guaranty of any obligation described in subparts (a) through (k)
hereof.



“Insolvent Lender” means a Lender, as reasonably determined by the Administrative Agent, that
(a) has become or is not Solvent or is the subsidiary of a Person that has become or is not
Solvent; or (b) has become the subject of a proceeding under the Bankruptcy Code or under any other
applicable bankruptcy, insolvency or similar law now or hereafter in effect, or has had a receiver,
conservator, trustee or custodian appointed for it, or has taken any action in furtherance of, or
indicating its consent to, approval of or acquiescence in any such proceeding or appointment, or is
a subsidiary of a Person that has become the subject of a proceeding under


 


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the Bankruptcy Code or under any other applicable bankruptcy, insolvency or similar law now or
hereafter in effect, or has had a receiver, conservator, trustee or custodian appointed for it, or
has taken any action in furtherance of, or indicating its consent to, approval of or acquiescence
in any such proceeding or appointment; provided that a Lender shall not be an Insolvent Lender
solely by virtue of the ownership or acquisition of an equity interest in such Lender or a parent
company thereof by a governmental authority or an instrumentality thereof. Any Insolvent Lender
shall cease to be an Insolvent Lender when the Administrative Agent determines, in its reasonable
discretion, that such Insolvent Lender is no longer an Insolvent Lender based upon the
characteristics set forth in this definition.



“Intellectual Property Security Agreement” means each Intellectual Property Security Agreement
executed and delivered on or after the Prior Closing Date by a Borrower or Guarantor of Payment,
wherein such Borrower or Guarantor of Payment, as the case may be, has granted to the
Administrative Agent, for the benefit of the Lenders, a security interest in all intellectual
property owned by such Borrower or Guarantor of Payment, as the same may from time to time be
amended, restated or otherwise modified.



“Intellectual Property Security Amendment” means each Amendment and Confirmation of
Intellectual Property Security Agreement (or similar document) executed and delivered on or after
the Closing Date by a Borrower or Guarantor of Payment, relating to an Intellectual Property
Security Agreement previously delivered by such Borrower or Guarantor of Payment.




“Interest Adjustment Date” means the last day of each Interest Period.



“Interest Period” means, with respect to a LIBOR Fixed Rate Loan, the period commencing on the
date such LIBOR Fixed Rate Loan is made and ending on the last day of such period, as selected by
the Administrative Borrower pursuant to the provisions hereof, and, thereafter (unless, with
respect to a Eurodollar Loan, such Eurodollar Loan is converted to a Base Rate Loan), each
subsequent period commencing on the last day of the immediately preceding Interest Period and
ending on the last day of such period, as selected by the Administrative Borrower pursuant to the
provisions hereof. The duration of each Interest Period for a LIBOR Fixed Rate Loan shall be one
month, two months, three months or six months, in each case as the Administrative Borrower may
select upon notice, as set forth in Section 2.6 hereof; provided that (a) if the Administrative
Borrower shall fail to so select the duration of any Interest Period for a Eurodollar Loan at least
three Business Days prior to the Interest Adjustment Date applicable to such Eurodollar Loan, the
Borrowers shall be deemed to have converted such Eurodollar Loan to a Base Rate Loan at the end of
the then current Interest Period; and (b) each Alternate Currency Loan must be repaid on the last
day of the Interest Period applicable thereto.



“Interest Rate Hedge Agreement” means any hedge agreement, interest rate swap, cap, collar or
floor agreement, or other interest rate management device entered into by a Company with any Person
in connection with any Indebtedness of such Company.




“Inventory” means inventory, as that term is defined in the U.C.C.


 


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“Investment Property” means investment property, as that term is defined in the U.C.C., unless
the Uniform Commercial Code as in effect in another jurisdiction would govern the perfection and
priority of a security interest in investment property, and, in such case, “investment property”
shall be defined in accordance with the law of that jurisdiction as in effect from time to time.




“Judgment Amount” means that term as defined in Section 12.22(b) hereof.




“Judgment Currency” means that term as defined in Section 12.22(a) hereof.




“KeyBank” means KeyBank National Association, and its successors and assigns.



“Landlord’s Waiver” means a landlord’s waiver or mortgagee’s waiver, each in form and
substance satisfactory to the Administrative Agent, delivered by a Credit Party in connection with
this Agreement, as such waiver may from time to time be amended, restated or otherwise modified.



“Lender” means that term as defined in the first paragraph hereof and, as the context
requires, shall include the Fronting Lenders and the Swing Line Lender.



“Lender Credit Exposure” means, for any Lender, at any time, the aggregate of such Lender’s
respective pro rata shares of the Revolving Credit Exposure and the Term Loan Exposure.



“Letter of Credit” means a commercial documentary letter of credit or standby letter of credit
that shall be issued by a Fronting Lender for the account of a Borrower or a Guarantor of Payment,
including amendments thereto, if any, and shall have an expiration date no later than the earlier
of (a) one year after its date of issuance (provided that such Letter of Credit may provide for the
renewal thereof for additional one year periods), or (b) one year after the last day of the
Commitment Period.



“Letter of Credit Commitment” means the commitment of the Administrative Agent, as a Fronting
Lender, on behalf of the Revolving Lenders, to issue Letters of Credit in an aggregate face amount
of up to Forty Million Dollars ($40,000,000).



“Letter of Credit Exposure” means, at any time, the Dollar Equivalent of the sum of (a) the
aggregate undrawn amount of all issued and outstanding Letters of Credit, and (b) the aggregate of
the draws made on Letters of Credit that have not been reimbursed by the Borrowers or converted to
a Revolving Loan pursuant to Section 2.2(b)(v) hereof.



“Letter of Credit Fee” means, with respect to any Letter of Credit, for any day, an amount
equal to (a) the face amount of such Letter of Credit, multiplied by (b) the Applicable Margin for
Revolving Loans that are Eurodollar Loans in effect on such day divided by three hundred sixty
(360).



“LIBOR Fixed Rate Loan” means a Eurodollar Loan or an Alternate Currency Loan.


 


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“Lien” means any mortgage, deed of trust, security interest, lien (statutory or other),
charge, assignment, hypothecation, encumbrance on, pledge or deposit of, or conditional sale, lease
(other than Operating Leases), sale with a right of redemption or other title retention agreement
and any capitalized lease with respect to any property (real or personal) or asset, and the filing
of, or agreement to give, any financing statement perfecting a security interest or providing a
notice filing (other than a notice filing with respect to a bailment, a consignment or an operating
lease) of a lien or security interest under the law of any jurisdiction.




“Loan” means a Revolving Loan, a Swing Loan or the Term Loan.



“Loan Documents” means, collectively, this Agreement, each Note, each Guaranty of Payment,
each Guaranty of Payment Joinder, all documentation relating to each Letter of Credit, each
Security Document, the Special Accounts and Borrowing Base Certificate Letter, the Administrative
Agent Fee Letter and the Closing Fee Letter, as any of the foregoing may from time to time be
amended, restated or otherwise modified or replaced, and any other document delivered pursuant
thereto.



“Lockbox” means the post office box rented by and in the name of one or more Credit Parties in
accordance with Section 7.1(a) hereof.




“Loss” means that term as defined in Section 12.22(b) hereof.




“Mandatory Prepayment” means that term as defined in Section 2.12(c) hereof.



“Master Agreement” means that Master Agreement entered into by and among the Credit Parties
and the Administrative Agent (or another Lender pursuant to Section 7.1(j) hereof) in connection
with the cash management services undertaken by the Administrative Agent (or such other Lender) on
behalf of the Companies.



“Material Adverse Effect” means any or all of the following: (a) any material adverse effect
on the business, operations, property, assets, liabilities, financial or other condition or
prospects of the Borrowers, or Gibraltar and its Subsidiaries taken as a whole; (b) any material
adverse effect on the ability of a Borrower, or any other material Credit Party, to perform its
obligations under any of the Loan Documents to which it is a party; (c) any material adverse effect
on the ability of Gibraltar and its Subsidiaries, taken as a whole, to pay their liabilities and
obligations as they mature or become due; or (d) any material adverse effect on the validity,
effectiveness or enforceability, as against any Credit Party, of any of the Loan Documents to which
it is a party.



“Material Indebtedness Agreement” means any debt instrument, lease (capital, operating or
otherwise), guaranty, contract, commitment, agreement or other arrangement evidencing or entered
into in connection with any Indebtedness of any Company or the Companies equal to or in excess of
the amount of Twenty Million Dollars ($20,000,000).


 


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“Maximum Amount” means, for each Lender, the amount set forth opposite such Lender’s name
under the column headed “Maximum Amount” as set forth on Schedule 1 hereto, subject to
decreases determined pursuant to Section 2.10(a) hereof, increases pursuant to Section 2.10(b)
hereof and assignments of interests pursuant to Section 12.10 hereof; provided that the Maximum
Amount for the Swing Line Lender shall exclude the Swing Line Commitment (other than its pro rata
share), and the Maximum Amount of a Fronting Lender shall exclude the Letter of Credit Commitment
(other than its pro rata share).




“Maximum Rate” means that term as defined in Section 2.4(e) hereof.



“Maximum Revolving Amount” means Two Hundred Fifty Million Dollars ($250,000,000), as such
amount may be reduced pursuant to Section 2.10(a) hereof.




“Moody’s” means Moody’s Investors Service, Inc., and any successor to such company.



“Mortgage” means each Open-End Mortgage, Assignment of Leases and Rents and Security Agreement
(or deed of trust or comparable document), dated on or after the Prior Closing Date, relating to
the Real Property, executed and delivered by a Credit Party, to further secure the Secured
Obligations, as the same may from time to time be amended, restated or otherwise modified.



“Mortgage Amendment” means each Open-End Mortgage Modification Agreement (or similar
agreement), relating to each Mortgage delivered prior to the Closing Date, executed and delivered
by a Company as of the Closing Date.



“Multiemployer Plan” means a Pension Plan that is subject to the requirements of Subtitle E of
Title IV of ERISA.




“Net Cash Proceeds” means, with respect to:




(a) any Asset Disposition, the Cash Proceeds resulting therefrom net of (i) reasonable
and customary expenses of sale incurred in connection with such Asset Disposition, and other
reasonable and customary fees and expenses incurred, and all state and local taxes paid or
reasonably estimated to be payable by such Person as a consequence of such Asset Disposition
and the payment of principal, premium and interest of Indebtedness (other than the
Obligations) secured by the assets that are the subject of such Asset Disposition and
required to be, and that is, repaid under the terms thereof as a result of such Asset
Disposition, and (ii) incremental federal, state and local income taxes paid or payable as a
result thereof; and




(b) any Recovery Event, the Cash Proceeds resulting therefrom net of (i) reasonable and
customary expenses incurred in connection with such Recovery Event, and local taxes paid or
reasonably estimated to be payable by such Person as a consequence of such Recovery Event
and the payment of principal, premium and interest of Indebtedness (other than the
Obligations) secured by the assets that are the subject of such Recovery Event and required
to be, and that is, repaid under the terms thereof as a
result of such Recovery Event, and (ii) incremental federal, state and local income taxes
paid or payable as a result thereof.


 


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“Noll/Norwesco Guaranty” means that certain Amended and Restated Guaranty of Payment, dated as
of the Closing Date, by Noll/Norwesco, LLC in favor of the Administrative Agent, as the same may
from time to time be amended, restated or otherwise modified.




“Non-Consenting Lender” means that term as defined in Section 12.3(c) hereof.



“Non-Material Subsidiary” means a Company that (a) is not a Credit Party or the equity holder
of a Credit Party, (b) has aggregate assets of less than One Million Dollars ($1,000,000), and has
no direct or indirect Subsidiaries with aggregate assets, for such Company and all such
Subsidiaries, of more than One Million Dollars ($1,000,000), and (c) has aggregate revenues of less
than One Million Dollars ($1,000,000) and has no direct or indirect Subsidiaries with aggregate
revenues, for such Company and all such Subsidiaries, of more than One Million Dollars
($1,000,000).




“Non-U.S. Lender” means that term as defined in Section 3.2(c) hereof.



“Note” means a Revolving Credit Note, the Swing Line Note or a Term Note, or any other
promissory note delivered pursuant to this Agreement.




“Notice of Loan” means a Notice of Loan in the form of the attached Exhibit D.



“Obligations” means, collectively, (a) all Indebtedness and other obligations now owing or
hereafter incurred by one or more Borrowers to the Administrative Agent, the Swing Line Lender, any
Fronting Lender, or any Lender pursuant to this Agreement and the other Loan Documents, and
includes the principal of and interest on all Loans and all obligations of the Borrowers or any
other Credit Party pursuant to Letters of Credit; (b) each extension, renewal, consolidation or
refinancing of any of the foregoing, in whole or in part; (c) the commitment and other fees, and
any prepayment fees payable pursuant to this Agreement or any other Loan Document; (d) all fees and
charges in connection with the Letters of Credit; (e) every other liability, now or hereafter owing
to the Administrative Agent or any Lender by any Company pursuant to this Agreement or any other
Loan Document; and (f) all Related Expenses.



“Operating Account” means a commercial Deposit Account designated “master disbursement
account” and maintained by GSCNY (for the benefit of the Credit Parties) with the Administrative
Agent (or another Lender pursuant to Section 7.1(j) hereof), without liability by the
Administrative Agent or any Lender to pay interest thereon, from which account the Borrowers shall
have the right to withdraw funds until the Administrative Agent, on behalf of the Lenders,
terminates such right after the occurrence of a Default or an Event of Default.



“Operating Leases” means all real or personal property leases under which any Company is bound
or obligated as a lessee or sublessee and which, under GAAP, are not required to be capitalized on
a balance sheet of such Company; provided that Operating Leases shall not include any such lease
under which any Company is also bound as the lessor or sublessor.


 


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“Original Credit Agreement” means that term as defined in the first Whereas clause on the
first page of this Agreement.




“Original Currency” means that term as defined in Section 12.22(a) hereof.



“Organizational Documents” means, with respect to any Person (other than an individual), such
Person’s Articles (Certificate) of Incorporation, operating agreement or equivalent formation
documents, and Regulations (Bylaws), or equivalent governing documents, and any amendments to any
of the foregoing.



“Other Taxes” means any and all present or future stamp or documentary taxes or any other
excise, ad valorem or property taxes, goods and services taxes, harmonized sales taxes and other
sales taxes, use taxes, value added taxes, charges or similar taxes or levies arising from any
payment made hereunder or from the execution, delivery or enforcement of, or otherwise with respect
to, this Agreement or any other Loan Document.



“Overall Commitment Percentage” means, for any Lender, the percentage determined by dividing
(a) the sum, based upon such Lender’s Applicable Commitment Percentages, of (i) the principal
outstanding under the Term Loan, (ii) the aggregate principal amount of Revolving Loans
outstanding, (iii) the Swing Line Exposure, and (iv) the Letter of Credit Exposure; by (b) the sum
of (A) the aggregate principal amount of all Loans outstanding, plus (B) the Letter of Credit
Exposure.




“Participant” means that term as defined in Section 12.11 hereof.



“Patriot Act” means the Uniting and Strengthening America by Providing Appropriate Tools
Required to Intercept and Obstruct Terrorism Act of 2001, USA Patriot Act, Title III of Pub. L.
107-56, signed into law October 26, 2001, as amended from time to time.




“PBGC” means the Pension Benefit Guaranty Corporation, and its successor.



“Pension Plan” means an ERISA Plan that is a “pension plan” (within the meaning of ERISA
Section 3(2)).



“Performance Guaranty” means a performance guaranty entered into in the ordinary course of
business and upon terms typical in the industry of the Borrowers; provided that Performance
Guaranties shall not include guaranties of Indebtedness.




“Permitted Foreign Subsidiary Loans, Guaranties and Investments” means:




(a) the investments by Gibraltar or a Domestic Subsidiary in a Foreign Subsidiary, in
such amounts existing as of the Closing Date and set forth on Schedule 5.11 hereto;


 


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(b) the loans by Gibraltar or a Domestic Subsidiary to a Foreign Subsidiary, in such
amounts existing as of the Closing Date and set forth on Schedule 5.11 hereto;




(c) any investment by a Foreign Subsidiary in, or loan from a Foreign Subsidiary to, or
guaranty from a Foreign Subsidiary of Indebtedness of, a Company;




(d) loans by a Credit Party to, investments by a Credit Party in, and Letters of Credit
issued to or for the benefit of, a Foreign Subsidiary, so long as all such loans,
investments and Letters of Credit by all Credit Parties to (or for the benefit of) all
Foreign Subsidiaries do not exceed the aggregate (including any amounts set forth in
Schedule 5.11 hereto) amount of One Hundred Million Dollars ($100,000,000) at any
time outstanding; and




(e) guaranties by a Credit Party of Indebtedness of a Foreign Subsidiary, not otherwise
permitted under this definition, so long as all such guaranties by all Credit Parties for
all Foreign Subsidiaries does not exceed Ten Million Dollars ($10,000,000) at any time
outstanding.



“Permitted Investment” means an investment of a Company in the stock (or other debt or equity
instruments) of a Person (other than a Company), so long as the aggregate amount of all such
investments of all Companies does not exceed, for any fiscal year of Gibraltar, an aggregate amount
of Twenty-Five Million Dollars ($25,000,000).



“Person” means any individual, sole proprietorship, partnership, joint venture, unincorporated
organization, corporation, limited liability company, unlimited liability company, institution,
trust, estate, Governmental Authority or any other entity.



“Pledge and Security Agreement” means the Fourth Amended and Restated Pledge and Security
Agreement, executed and delivered by each Credit Party in favor of the Administrative Agent, for
the benefit of the Lenders, dated as of the Closing Date, as the same may from time to time be
amended, restated or otherwise modified.



“Pledge and Security Agreement Joinder” means each Pledge and Security Agreement Joinder,
executed and delivered by a Credit Party for the purpose of adding such Credit Party as a party to
a previously executed Pledge and Security Agreement.




“Pledged Entity” means the issuer of any Pledged Securities.



“Pledged Notes” means the promissory notes payable to a Credit Party, as described on
Schedule 7.3 hereto, and any additional or future promissory notes that may hereafter from
time to time be payable to one or more Credit Parties.



“Pledged Securities” means all of the Equity Interests now owned or hereafter acquired by each
Credit Party, and all of such Credit Party’s other rights, title and interests in, or in any way
related to, each Pledged Entity to which any of such Equity Interests relate, and all proceeds
thereof; provided that Pledged Securities shall exclude (a) shares of capital stock or other equity


 


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interests of any Foreign Subsidiary that is not a first-tier Foreign Subsidiary, and (b) shares of
voting capital stock or other voting equity interests in any first-tier Foreign Subsidiary in
excess of sixty-five percent (65%) of the total outstanding shares of voting capital stock or other
voting equity interest of such first-tier Foreign Subsidiary. (Schedule 5 hereto lists, as
of the Closing Date, all of the Pledged Securities.)



“Prime Rate” means the interest rate established from time to time by the Administrative Agent
as the Administrative Agent’s prime rate, whether or not such rate shall be publicly announced; the
Prime Rate may not be the lowest interest rate charged by the Administrative Agent for commercial
or other extensions of credit. Each change in the Prime Rate shall be effective immediately from
and after such change.




“Prior Closing Date” means July 24, 2009.



“Prior Credit Agreements” means that term as defined in the first Whereas clause on the first
page of this Agreement.



“Proceeds” means (a) proceeds, as that term is defined in the U.C.C., and any other proceeds,
and (b) whatever is received upon the sale, exchange, collection or other disposition of Collateral
or proceeds, whether cash or non-cash. Cash proceeds include, without limitation, moneys, checks
and Deposit Accounts. Proceeds include, without limitation, any Account arising when the right to
payment is earned under a contract right, any insurance payable by reason of loss or damage to the
Collateral, and any return or unearned premium upon any cancellation of insurance. Except as
expressly authorized in this Agreement, the right of the Administrative Agent and the Lenders to
Proceeds specifically set forth herein or indicated in any financing statement shall never
constitute an express or implied authorization on the part of the Administrative Agent or any
Lender to a Company’s sale, exchange, collection or other disposition of any or all of the
Collateral.



“Processor’s Waiver” means a processor’s waiver (or similar agreement), in form and substance
reasonably satisfactory to the Administrative Agent, delivered by a Credit Party in connection with
this Agreement, as such waiver may from time to time be amended, restated or otherwise modified.



“Protective Advance” means a protective advance made by the Administrative Agent in accordance
with Section 2.18 hereof for the following:




(a) to pay and discharge past due taxes, assessments and governmental charges, at any
time levied on or with respect to any of the Collateral to the extent that the applicable
Company has failed to pay and discharge the same in accordance with the requirements of this
Agreement or any of the other Loan Documents;




(b) to pay and discharge any claims of other creditors that are secured by any Lien on
any Collateral, other than a Lien permitted by Section 5.9 hereof;


 


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(c) to pay for the maintenance, repair, restoration and preservation of any Collateral
to the extent the Company that owns such Collateral fails to comply with its obligations in
regard thereto under this Agreement and the other Loan Documents, or the Administrative
Agent reasonably believes payment of the same is necessary or appropriate to avoid a
material loss or material diminution in value of such Collateral;




(d) to obtain and pay the premiums on insurance for any Collateral to the extent the
Companies fail to maintain such insurance in accordance with the requirements of this
Agreement and the other Loan Documents; or




(e) to otherwise maintain, protect or preserve the Collateral or the rights of the
Lenders under the Loan Documents and is made to enhance the likelihood of, or to maximize
the amount of, repayment of the Secured Obligations.



“Real Property” means each parcel of real estate owned by a Credit Party, as set forth on
Schedule 4 hereto, together with all improvements and buildings thereon and all
appurtenances, easements or other rights thereto belonging, and subject to a Mortgage, and any
other parcel of real estate owned by a Credit Party and, after the Closing Date, subject to a
Mortgage.



“Recovery Event” means, with respect to any property, (a) the actual or constructive total
loss of such property or the use thereof, resulting from destruction, damage beyond repair, or the
rendition of such property permanently unfit for normal use from any casualty or similar occurrence
whatsoever, (b) the destruction or damage of a portion of such property from any casualty or
similar occurrence whatsoever under circumstances in which such damage cannot reasonably be
expected to be repaired, or such property cannot reasonably be expected to be restored to its
condition immediately prior to such destruction or damage, within ninety (90) days after the
occurrence of such destruction or damage, (c) the condemnation, confiscation or seizure of, or
requisition of title to or use of, any property, or (d) in the case of any property located upon a
leasehold, the termination or expiration of such leasehold.




“Register” means that term as described in Section 12.10(i) hereof.



“Regularly Scheduled Payment Date” means the last day of each March, June, September and
December of each year.



“Related Expenses” means any and all costs, liabilities and expenses (including, without
limitation, losses, damages, penalties, claims, actions, reasonable attorneys’ fees, legal
expenses, judgments, suits and disbursements) (a) incurred by the Administrative Agent, or imposed
upon or asserted against the Administrative Agent or any Lender, in any attempt by the
Administrative Agent and the Lenders to (i) obtain, preserve, perfect or enforce any Loan Document
or any security interest evidenced by any Loan Document; (ii) obtain payment, performance or
observance of any and all of the Obligations; or (iii) maintain, insure, audit, collect, preserve,
repossess or dispose of any of the collateral securing the Obligations or any part thereof,
including, without limitation, costs and expenses for appraisals, assessments and audits of any
Company or any such collateral; or (b) incidental or related to subpart (a) above, including,
without limitation, interest thereupon from the date incurred, imposed or asserted until paid at
the Default Rate.


 


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“Related Writing” means each Loan Document, each Borrowing Base Certificate and any other
assignment, mortgage, security agreement, guaranty agreement, subordination agreement, financial
statement, audit report or other writing furnished by any Credit Party, or any of its officers, to
the Administrative Agent or the Lenders pursuant to or otherwise in connection with this Agreement;
provided that no Bank Product Agreement or Hedge Agreement shall constitute a Related Writing
hereunder.




“Renown” means Renown Specialties Company Ltd., a company organized under the law of Canada.



“Reportable Event” means a reportable event as that term is defined in Title IV of ERISA,
except actions of general applicability by the Secretary of Labor under Section 110 of such Act.



“Required Lenders” means the holders, based upon each Lender’s Applicable Commitment
Percentages, of at least fifty-one percent (51%) of an amount (the “Total Amount”) equal to the sum
of:




(a) (i) during the Commitment Period, the Revolving Amount, or (ii) after the
Commitment Period, the Revolving Credit Exposure; and




(b) (i) at any time prior to the Term Loan Funding Date, the Term Loan Commitment, or
(ii) on and after the Term Loan Funding Date, the principal outstanding under the Term Loan;



provided that the portion of the Total Amount held or deemed to be held by any Defaulting Lender or
Insolvent Lender shall be excluded for purposes of making a determination of Required Lenders.



“Requirement of Law” means, as to any Person, any law, treaty, rule or regulation or
determination or policy statement or interpretation 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.



“Reserve” or “Reserves” means any amount that the Administrative Agent reserves, without
duplication, pursuant to Section 2.14 hereof, against the Borrowing Base.



“Reserve Percentage” means, for any day, that percentage (expressed as a decimal) that is in
effect on such day, as prescribed by the Board of Governors of the Federal Reserve System (or any
successor) for determining the maximum reserve requirement (including, without limitation, all
basic, supplemental, marginal and other reserves and taking into account any transitional
adjustments or other scheduled changes in reserve requirements) for a member bank of the Federal
Reserve System in Cleveland, Ohio, in respect of Eurocurrency Liabilities. The
Eurodollar Rate and the Alternate Currency Rate shall be adjusted automatically on and as of the
effective date of any change in the Reserve Percentage.


 


37









 





“Restricted Payment” means, with respect to any Company, (a) any Capital Distribution, (b) any
amount paid by such Company in repayment, redemption, retirement or repurchase, directly or
indirectly, of any Subordinated Indebtedness, including, but not limited to, the Indebtedness
incurred pursuant to the notes issued in connection with the Subordinated Indenture, or (c) the
exercise by any Company of any right of defeasance or covenant defeasance or similar right with
respect to any Subordinated Indebtedness, including but not limited to the Indebtedness incurred
pursuant to the notes issued in connection with the Subordinated Indenture.



“Revolving Amount” means the Closing Revolving Amount, as such amount may be increased up to
the Maximum Revolving Amount pursuant to Section 2.10(b) hereof, or decreased pursuant to Section
2.10(a) hereof.



“Revolving Credit Availability” means, at any time, the amount equal to the Revolving Credit
Commitment minus the Revolving Credit Exposure.



“Revolving Credit Commitment” means the obligation hereunder, during the Commitment Period, of
(a) the Revolving Lenders (and each Revolving Lender) to make Revolving Loans, (b) the Fronting
Lenders to issue and each Revolving Lender to participate in, Letters of Credit pursuant to the
Letter of Credit Commitment, and (c) the Swing Line Lender to make, and each Revolving Lender to
participate in, Swing Loans pursuant to the Swing Line Commitment; up to an aggregate principal
amount outstanding at any time equal to the lesser of (i) the Borrowing Base, or (ii) the Revolving
Amount.



“Revolving Credit Exposure” means, at any time, the Dollar Equivalent of the sum of (a) the
aggregate principal amount of all Revolving Loans outstanding, (b) the Swing Line Exposure, and (c)
the Letter of Credit Exposure.



“Revolving Credit Note” means a Revolving Credit Note, in the form of the attached Exhibit
A, executed and delivered pursuant to Section 2.5(a) hereof.



“Revolving Lender” means a Lender with a percentage of the Revolving Credit Commitment as set
forth on Schedule 1 hereto, or that acquires a percentage of the Revolving Credit
Commitment pursuant to Section 2.10(b) or 12.10 hereof.



“Revolving Loan” means a loan made to the Borrowers by the Revolving Lenders in accordance
with Section 2.2(a) hereof.



“SEC” means the United States Securities and Exchange Commission, or any governmental body or
agency succeeding to any of its principal functions.



“Secured Obligations” means, collectively, (a) the Obligations, (b) the Designated Hedge
Obligations owing to a Lender (or an entity that is an affiliate of a then existing Lender), and
(c)
the Bank Product Obligations owing to a Lender (or an entity that is an affiliate of a then
existing Lender).


 


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“Securities Account” means a securities account, as that term is defined in the U.C.C.



“Securities Account Control Agreement” means each Securities Account Control Agreement among a
Credit Party, the Administrative Agent and a Securities Intermediary, dated prior to, on or after
the Closing Date, to be in form and substance satisfactory to the Administrative Agent, as the same
may from time to time be amended, restated or otherwise modified.



“Securities Intermediary” means a clearing corporation or a Person, including, without
limitation, a bank or broker, that in the ordinary course of its business maintains Securities
Accounts for others and is acting in that capacity.



“Security Account” means a commercial Deposit Account maintained with the Administrative Agent
(or another Lender pursuant to Section 7.1(j) hereof), without liability by the Administrative
Agent or the Lenders to pay interest thereon, as described in Section 7.1(f) hereof.



“Security Documents” means the Pledge and Security Agreement, each Pledge and Security
Agreement Joinder, each Intellectual Property Security Agreement, each Intellectual Property
Security Amendment, each Processor’s Waiver, each Consignee’s Waiver, each Mortgage, each
Landlord’s Waiver, each Bailee’s Waiver, each Control Agreement, each U.C.C. Financing Statement or
similar filing as to a jurisdiction located outside of the United States of America filed in
connection herewith or perfecting any interest created in any of the foregoing documents, and any
other document pursuant to which any Lien is granted by a Company or any other Person to the
Administrative Agent, for the benefit of the Lenders, as security for the Secured Obligations, or
any part thereof, and each other agreement executed or provided to the Administrative Agent in
connection with any of the foregoing, as any of the foregoing may from time to time be amended,
restated or otherwise modified or replaced.




“Settlement Date” means that term as defined in Section 2.2(c)(ii) hereof.



“Solvent” means, with respect to any Person, that (a) the fair value of such Person’s assets
is in excess of the total amount of such Person’s debts, as determined in accordance with the
Bankruptcy Code, (b) the present fair saleable value of such Person’s assets is in excess of the
amount that will be required to pay such Person’s debts as such debts become absolute and matured,
(c) such Person is able to realize upon its assets and pay its debts and other liabilities
(including disputed, contingent and unliquidated liabilities) as such liabilities mature in the
normal course of business, (d) such Person does not intend to, and does not believe that it will,
incur debts or liabilities beyond its ability to pay as such debts and liabilities mature, and (e)
such Person is not engaged in business or a transaction, and is not about to engage in business or
a transaction, for which its property would constitute an unreasonably small amount of capital. As
used in this definition, the term “debts” includes any legal liability, whether matured or
unmatured, liquidated or unliquidated, absolute, fixed or contingent, as determined in accordance
with the Bankruptcy Code.


 


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“Special Accounts and Borrowing Base Certificate Letter” means that certain Special Accounts
and Borrowing Base Certificate Letter, dated as of the Closing Date, by and between the
Administrative Borrower and the Administrative Agent, that sets forth certain special eligibility
requirements with respect to agreed upon specified Account Debtors, as the same may from time to
time be amended, restated or otherwise modified.




“Special Trust Account” means that term as defined in Section 2.12(d)(iii).




“Specific Commitment” means the Revolving Credit Commitment or the Term Loan Commitment.



“Standard & Poor’s” means Standard & Poor’s Ratings Group, a division of McGraw-Hill, Inc.,
and any successor to such company.



“Subordinated Indebtedness” means Indebtedness that shall have been subordinated (by written
terms or written agreement being, in either case, in form and substance satisfactory to the
Administrative Agent and the Required Lenders) in favor of the prior payment in full of the
Obligations.



“Subordinated Indenture” means the Indenture, dated as of the December 8, 2005, among
Gibraltar, the subsidiary guarantors party thereto and The Bank of New York Trust Company, N.A., as
trustee, pursuant to which Gibraltar has issued the Subordinated Notes, as the same may, from time
to time be amended, supplemented, restated or otherwise modified or replaced.



“Subordinated Notes” means the 8% Senior Subordinated Notes Due 2015, as the same may from
time to time be amended, restated, supplemented or otherwise modified.



“Subsidiary” means (a) a corporation more than fifty percent (50%) of the Voting Power of
which is owned, directly or indirectly, by a Borrower or by one or more other subsidiaries of such
Borrower or by such Borrower and one or more subsidiaries of such Borrower, (b) a partnership,
limited liability company or unlimited liability company of which a Borrower, one or more other
subsidiaries of such Borrower or such Borrower and one or more subsidiaries of such Borrower,
directly or indirectly, is a general partner or managing member, as the case may be, or otherwise
has an ownership interest greater than fifty percent (50%) of all of the ownership interests in
such partnership, limited liability company or unlimited liability company, or (c) any other Person
(other than a corporation, partnership, limited liability company or unlimited liability company)
in which a Borrower, one or more other subsidiaries of such Borrower or such Borrower and one or
more subsidiaries of such Borrower, directly or indirectly, has at least a majority interest in the
Voting Power or the power to elect or direct the election of a majority of directors or other
governing body of such Person. Unless otherwise specified, references to Subsidiary shall mean a
Subsidiary of Gibraltar.


 


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“Supporting Letter of Credit” means a standby letter of credit, in form and substance
satisfactory to the Administrative Agent and the appropriate Fronting Lender, issued by an issuer
satisfactory to the Administrative Agent and such Fronting Lender.



“Swing Line Commitment” means the commitment of the Swing Line Lender to make Swing Loans to
the Borrowers, on a discretionary basis, up to the aggregate amount at any time outstanding of Ten
Million Dollars ($10,000,000).



“Swing Line Exposure” means, at any time, the aggregate principal amount of all Swing Loans
outstanding.




“Swing Line Lender” means KeyBank, as holder of the Swing Line Commitment.



“Swing Line Note” means the Swing Line Note, in the form of the attached Exhibit B,
executed and delivered pursuant to Section 2.5(b) hereof.



“Swing Loan” means a loan that shall be denominated in Dollars made to the Borrowers by the
Swing Line Lender under the Swing Line Commitment, in accordance with Section 2.2(c) hereof.



“Swing Loan Maturity Date” means, with respect to any Swing Loan, (a) at all times other than
during a Cash Dominion Period, the earlier of (i) fifteen (15) days after the date such Swing Loan
is made, or (ii) the last day of the Commitment Period; and (b) during a Cash Dominion Period, (i)
the earlier of the first Wednesday (or the next Business Day if such Wednesday is not a Business
Day) after the date such Swing Loan is made, or (ii) the last day of the Commitment Period.



“Synthetic Lease” means any lease (a) that is accounted for by the lessee as an Operating
Lease, and (b) under which the lessee is intended to be the “owner” of the leased property for
federal income tax purposes.



“Target Company” means that certain business entity disclosed to the Administrative Agent in
writing prior to the Closing Date.




“Target Company Acquisition” means the Acquisition by a Credit Party of the Target Company.



“Target Company Acquisition Agreements” means those certain contracts and agreements entered
into in connection with, and delivered pursuant to, the Target Company Acquisition.



“Target EBITDA” means, for any period, in accordance with GAAP, net earnings for such period,
plus the aggregate amounts deducted in determining such net earnings in respect of (a) income
taxes, (b) interest expense, and (c) depreciation and amortization charges.


 


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“Taxes” means any and all present or future taxes of any kind, including but not limited to,
levies, imposts, duties, surtaxes, charges, fees, deductions or withholdings now or hereafter
imposed, levied, collected, withheld or assessed by any Governmental Authority (together with any
interest, penalties, fines, additions to taxes or similar liabilities with respect thereto) other
than Excluded Taxes.



“Term Lender” means a Lender with a percentage of the Term Loan Commitment as set forth on
Schedule 1 hereto, or that acquires a percentage of the Term Loan Commitment pursuant to
Section 12.10 hereof.



“Term Loan” means the loan made to the Borrowers by the Term Lenders, in accordance with
Section 2.3 hereof.



“Term Loan Commitment” means the obligation hereunder of the Term Lenders to make the Term
Loan in the original principal amount of Thirty-Five Million Dollars ($35,000,000) on the Term Loan
Funding Date, with each Term Lender’s obligation to participate therein being in the amount set
forth opposite such Term Lender’s name under the column headed “Term Loan Commitment Amount” as set
forth on Schedule 1 hereto, subject to assignments of interests pursuant to Section 12.10
hereof.




“Term Loan Exposure” means, at any time, the outstanding principal amount of the Term Loan.



“Term Loan Funding Date” means the date on which all of the following conditions have been
satisfied, in the reasonable opinion of the Administrative Agent:




(a) the Borrowers shall have provided to the Administrative Agent executed copies of
the Target Company Acquisition Agreements and all documents executed in connection
therewith, certified by a Financial Officer as true and complete, which documents shall be
in form and substance satisfactory to the Administrative Agent, including evidence that (i)
the total cash Consideration for the Target Company Acquisition does not exceed One Hundred
Thirty Million Dollars ($130,000,000), and (ii) the Target Company Acquisition has been (or,
contemporaneously with the funding of the Term Loan, will be) consummated in accordance with
the terms of the Target Company Acquisition Agreements and in compliance with applicable law
and regulatory approvals;




(b) the Borrowers shall have delivered to the Administrative Agent a balance sheet
(adjusted to give effect to the transactions contemplated by the Target Company Acquisition
Agreements) for the most recently completed calendar month for which the Borrowers should
have delivered financial statements pursuant to Section 5.3(b) hereof, to be in form and
substance satisfactory to the Administrative Agent; and




(c) the Borrowers shall have provided to the Administrative Agent a calculation,
certified by a Financial Officer, evidencing that on the Term Loan Funding
Date the Term Loan Funding Date Available Liquidity shall be no less than Thirty-Five
Million Dollars ($35,000,000).


 


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“Term Loan Funding Date Available Liquidity” means, on the Term Loan Funding Date, the sum of
(a) unrestricted and unencumbered (except as to any Lien of the Administrative Agent, for the
benefit of the Lenders) cash on hand of the Credit Parties held at financial institutions located
in the United States, plus (b) the Revolving Credit Availability, minus (c) any accounts payable of
a Credit Party with balances over sixty (60) days past due.



“Term Loan Maturity Date” shall mean the date that is the third anniversary of the Term Loan
Funding Date.



“Term Note” means a Term Note, in the form of the attached Exhibit C executed and
delivered pursuant to Section 2.5(c) hereof.



“Third Amended Credit Agreement” means that term as defined in the first Whereas clause on the
first page of this Agreement.



“Total Commitment Amount” means the principal amount of Two Hundred Thirty-Five Million
Dollars ($235,000,000), as such amount may be increased pursuant to Section 2.10(b) hereof, or
decreased pursuant to Section 2.10(a) hereof; provided that, for the purposes of determining the
Total Commitment Amount, the Administrative Agent may, in its discretion, calculate the Dollar
Equivalent of any Alternate Currency Loan on any Business Day selected by the Administrative Agent.



“U.C.C.” means the Uniform Commercial Code, as in effect from time to time in the State of New
York.



“U.C.C. Financing Statement” means a financing statement filed or to be filed in accordance
with the Uniform Commercial Code, as in effect from time to time, in the relevant state or states.




“United Steel Products” means United Steel Products Company, Inc., a Minnesota corporation.



“United Steel Products and Renown Disposition” means the sale by GSCNY of all of its
outstanding equity interests in United Steel Products and Renown pursuant to the United Steel
Products and Renown Disposition Documents.



“United Steel Products and Renown Disposition Documents” means the United Steel Products and
Renown Purchase Agreement and each other document executed and delivered in connection therewith.



“United Steel Products and Renown Purchase Agreement” means that certain Stock Purchase
Agreement, dated as of March 10, 2011, among GSCNY, MiTech Industries, Inc., a Missouri corporation
and MiTech Canada Ltd., a company organized under the law of Canada.


 


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“Voting Power” means, with respect to any Person, the exclusive ability to control, through
the ownership of shares of capital stock, partnership interests, membership interests or otherwise,
the election of members of the board of directors or other similar governing body of such Person.
The holding of a designated percentage of Voting Power of a Person means the ownership of shares of
capital stock, partnership interests, membership interests or other interests of such Person
sufficient to control exclusively the election of that percentage of the members of the board of
directors or similar governing body of such Person.



“Welfare Plan” means an ERISA Plan that is a “welfare plan” within the meaning of ERISA
Section 3(l).




Section 1.2. Accounting Terms.



(a) Any accounting term not specifically defined in this Article I shall have the meaning
ascribed thereto by GAAP.



(b) If any change in the rules, regulations, pronouncements, opinions or other requirements of
the Financial Accounting Standards Board (or any successor thereto or agency with similar function)
with respect to GAAP, or if Borrowers adopt the International Financial Reporting Standards, and
such change or adoption results in a change in the calculation of any component (or components in
the aggregate) of the financial covenants set forth in Section 5.7 hereof or the related financial
definitions, at the option of the Administrative Agent, the Required Lenders or the Administrative
Borrower, the parties hereto will enter into good faith negotiations to amend such financial
covenants and financial definitions in such manner as the parties shall agree, each acting
reasonably, in order to reflect fairly such change or adoption so that the criteria for evaluating
the financial condition of the Borrowers shall be the same in commercial effect after, as well as
before, such change or adoption is made (in which case the method and calculating such financial
covenants and definitions hereunder shall be determined in the manner so agreed); provided that,
until so amended, such calculations shall continue to be computed in accordance with GAAP as in
effect prior to such change or adoption.



Section 1.3. Terms Generally. The foregoing definitions shall be applicable to the
singular and plural forms of the foregoing defined terms. Unless otherwise defined in this Article
I, terms that are defined in the U.C.C. are used herein as so defined.



Section 1.4. Confirmation of Recitals. The Borrowers, the Administrative Agent and
the Lenders hereby confirm the statements set forth in the recitals of this Agreement.


 


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ARTICLE II. AMOUNT AND TERMS OF CREDIT





Section 2.1. Amount and Nature of Credit.



(a) Subject to the terms and conditions of this Agreement, the Lenders, during the Commitment
Period and to the extent hereinafter provided, shall make Loans to the Borrowers, participate in
Swing Loans made by the Swing Line Lender to the Borrowers, and issue or participate in Letters of
Credit at the request of the Borrowers, in such aggregate amount as the Borrowers shall request
pursuant to the Commitment; provided that in no event shall the aggregate principal amount of all
Loans and Letters of Credit outstanding under this Agreement be in excess of the Total Commitment
Amount.



(b) Each Lender, for itself and not one for any other, agrees to make Loans, participate in
Swing Loans, and issue or participate in Letters of Credit, during the Commitment Period, on such
basis that, immediately after the completion of any borrowing by the Borrowers or the issuance of a
Letter of Credit:




(i) the Dollar Equivalent of the aggregate outstanding principal amount of Loans made
by such Lender (other than Swing Loans made by the Swing Line Lender), when combined with
such Lender’s pro rata share, if any, of the Letter of Credit Exposure and the Swing Line
Exposure, shall not be in excess of the Maximum Amount for such Lender; and




(ii) with respect to each Specific Commitment, the aggregate outstanding principal
amount of Loans (other than Swing Loans) made by such Lender with respect to such Specific
Commitment shall represent that percentage of the aggregate principal amount then
outstanding on all Loans (other than Swing Loans) within such Specific Commitment that shall
be such Lender’s Applicable Commitment Percentage.



Within each Specific Commitment, each borrowing (other than Swing Loans which shall be risk
participated on a pro rata basis) from the Lenders shall be made pro rata according to the
respective Applicable Commitment Percentages of the Lenders.



(c) The Loans may be made as Revolving Loans as described in Section 2.2(a) hereof, as the
Term Loan as described in Section 2.3 hereof, and as Swing Loans as described in Section 2.2(c)
hereof, and Letters of Credit may be issued in accordance with Section 2.2(b) hereof.




Section 2.2. Revolving Credit Commitment.



(a) Revolving Loans. Subject to the terms and conditions of this Agreement, during
the Commitment Period, the Revolving Lenders shall make a Revolving Loan or Revolving Loans to the
Borrowers in such amount or amounts as the Administrative Borrower, through an Authorized Officer,
may from time to time request, but not exceeding in aggregate principal amount at any time
outstanding hereunder the Revolving Credit Commitment, when such Revolving Loans are combined with
the Letter of Credit

 


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Exposure
and the Swing Line Exposure; provided that the Borrowers shall not request any Alternate Currency Loan (and the Lenders shall
not be obligated to make an Alternate Currency Loan) if, after giving effect thereto, the Alternate
Currency Exposure would exceed the Alternate Currency Maximum Amount. The Borrowers shall have the
option, subject to the terms and conditions set forth herein, to borrow Revolving Loans, maturing
on the last day of the Commitment Period, by means of any combination of Base Rate Loans,
Eurodollar Loans or Alternate Currency Loans. With respect to each Alternate Currency Loan,
subject to the other provisions of this Agreement, the Borrowers shall receive all of the proceeds
of such Alternate Currency Loan in one Alternate Currency and repay such Alternate Currency Loan in
the same Alternate Currency. Subject to the provisions of this Agreement, the Borrowers shall be
entitled under this Section 2.2(a) to borrow Revolving Loans, repay the same in whole or in part
and re-borrow Revolving Loans hereunder at any time and from time to time during the Commitment
Period.




(b) Letters of Credit.




(i) Generally. Subject to the terms and conditions of this Agreement, during
the Commitment Period, a Fronting Lender shall, in its own name, on behalf of the Revolving
Lenders, issue such Letters of Credit for the account of a Borrower or a Guarantor of
Payment, as the Administrative Borrower may from time to time request. The Administrative
Borrower shall not request any Letter of Credit (and the Fronting Lenders shall not be
obligated to issue any Letter of Credit) if, after giving effect thereto, (A) the Letter of
Credit Exposure would exceed the Letter of Credit Commitment, or (B) the Revolving Credit
Exposure would exceed the Revolving Credit Commitment, or (C) with respect to a request for
a Letter of Credit to be issued in an Alternate Currency, the Alternate Currency Exposure
would exceed the Alternate Currency Maximum Amount. The issuance of each Letter of Credit
shall confer upon each Revolving Lender the benefits and liabilities of a participation
consisting of an undivided pro rata interest in the Letter of Credit to the extent of such
Revolving Lender’s Applicable Commitment Percentage.




(ii) Request for Letter of Credit. Each request for a Letter of Credit shall
be delivered to the Administrative Agent (and to the applicable Fronting Lender, if such
Fronting Lender is a Lender other than the Administrative Agent) by an Authorized Officer
not later than 11:00 A.M. (Eastern time) three Business Days prior to the date of the
proposed issuance of the Letter of Credit. Each such request shall be in a form acceptable
to the Administrative Agent (and the applicable Fronting Lender, if such Fronting Lender is
a Lender other than the Administrative Agent) and shall specify the face amount thereof,
whether such Letter of Credit is a commercial documentary or a standby Letter of Credit, the
account party, the beneficiary, the requested date of issuance, amendment, renewal or
extension, the expiry date thereof, the Alternate Currency if a Letter of Credit denominated
in an Alternate Currency is requested, and the nature of the transaction or obligation to be
supported thereby. Concurrently with each such request, the Borrowers, and any Guarantor of
Payment for whose account the Letter of Credit is to be issued, shall execute and deliver to
the Fronting Lender issuing such Letter of Credit an appropriate application and agreement,
being in the standard form of such Fronting Lender for such letters of credit, as amended to
conform to the provisions
of this Agreement if required by the Administrative Agent. The Administrative Agent shall
give the applicable Fronting Lender and each Revolving Lender notice of each such request
for a Letter of Credit.


 


46









 






(iii) Commercial Documentary Letters of Credit Fees. With respect to each
Letter of Credit that shall be a commercial documentary letter of credit and the drafts
thereunder, whether issued for the account of a Borrower or a Guarantor of Payment, the
Borrowers agree to (A) pay to the Administrative Agent, for the pro rata benefit of the
Revolving Lenders, a non-refundable commission based upon the face amount of such Letter of
Credit, which shall be paid quarterly in arrears, on each Regularly Scheduled Payment Date,
in an amount equal to the aggregate sum of the Letter of Credit Fee for such Letter of
Credit for each day of such quarter; (B) pay to the Administrative Agent, for the sole
benefit of the Fronting Lender issuing such Letter of Credit, an additional Letter of Credit
fee, which shall be paid on the date that such Letter of Credit is issued, amended or
renewed, at the rate of one-fourth percent (1/4%) of the face amount of such Letter of
Credit; and (C) pay to the Administrative Agent, for the sole benefit of the Fronting Lender
issuing such Letter of Credit, such other issuance, amendment, renewal, negotiation, draw,
acceptance, telex, courier, postage and similar transactional fees as are customarily
charged by such Fronting Lender in respect of the issuance and administration of similar
letters of credit under its fee schedule as in effect from time to time.




(iv) Standby Letters of Credit Fees. With respect to each Letter of Credit
that shall be a standby letter of credit and the drafts thereunder, if any, whether issued
for the account of a Borrower or a Guarantor of Payment, the Borrowers agree to (A) pay to
the Administrative Agent, for the pro rata benefit of the Revolving Lenders, a
non-refundable commission based upon the face amount of such Letter of Credit, which shall
be paid quarterly in arrears, on each Regularly Scheduled Payment Date, in an amount equal
to the aggregate sum of the Letter of Credit Fee for such Letter of Credit for each day of
such quarter; (B) pay to the Administrative Agent, for the sole benefit of the Fronting
Lender issuing such Letter of Credit, an additional Letter of Credit fee, which shall be
paid on each date that such Letter of Credit shall be issued, amended or renewed at the rate
of one-fourth percent (1/4%) of the face amount of such Letter of Credit; and (C) pay to the
Administrative Agent, for the sole benefit of the Fronting Lender issuing such Letter of
Credit, such other issuance, amendment, renewal, negotiation, draw, acceptance, telex,
courier, postage and similar transactional fees as are customarily charged by such Fronting
Lender in respect of the issuance and administration of similar letters of credit under its
fee schedule as in effect from time to time.




(v) Refunding of Letters of Credit with Revolving Loans. Whenever a Letter of
Credit shall be drawn, the Borrowers shall reimburse the Fronting Lender that issued such
Letter of Credit for the amount drawn. In the event that the amount drawn shall not have
been reimbursed by the Borrowers within one Business Day of the date of the drawing of such
Letter of Credit, at the sole option of the Administrative Agent (and the applicable
Fronting Lender, if such Fronting Lender is a Lender other than the

 


47









 






Administrative Agent),
the Borrowers shall be deemed to have requested a Revolving Loan, subject to the provisions of Sections 2.2(a) and 2.6 hereof (other than the
requirement set forth in Section 2.6(d) hereof), in the amount drawn. Such Revolving Loan
shall be evidenced by the Revolving Credit Notes (or, if a Lender has not requested a
Revolving Credit Note, by the records of the Administrative Agent and such Lender). Each
Revolving Lender agrees to make a Revolving Loan on the date of such notice, subject to no
conditions precedent whatsoever. Each Revolving Lender acknowledges and agrees that its
obligation to make a Revolving Loan pursuant to Section 2.2(a) hereof when required by this
Section 2.2(b)(v) shall be absolute and unconditional and shall not be affected by any
circumstance whatsoever, including, without limitation, the occurrence and continuance of a
Default or Event of Default, and that its payment to the Administrative Agent, for the
account of the Fronting Lender that issued such Letter of Credit, of the proceeds of such
Revolving Loan shall be made without any offset, abatement, recoupment, counterclaim,
withholding or reduction whatsoever and whether or not the Revolving Credit Commitment shall
have been reduced or terminated. The Borrowers irrevocably authorize and instruct the
Administrative Agent to apply the proceeds of any borrowing pursuant to this Section
2.2(b)(v) to reimburse, in full (other than such Fronting Lender’s pro rata share of such
borrowing), such Fronting Lender for the amount drawn on such Letter of Credit. Each such
Revolving Loan shall be deemed to be a Base Rate Loan unless otherwise requested by and
available to the Borrowers hereunder. Each Revolving Lender is hereby authorized to record
on its records relating to its Revolving Credit Note (or, if such Lender has not requested a
Revolving Credit Note, its records relating to Revolving Loans) such Revolving Lender’s pro
rata share of the amounts paid and not reimbursed on the Letters of Credit.




(vi) Participation in Letters of Credit. If, for any reason, the
Administrative Agent (and the applicable Fronting Lender if such Fronting Lender is a Lender
other than the Administrative Agent) shall be unable to or, in the opinion of the
Administrative Agent, it shall be impracticable to, convert any amount drawn under a Letter
of Credit to a Revolving Loan pursuant to the preceding subsection, or if the amount not
reimbursed is a Letter of Credit drawn in an Alternate Currency, the Administrative Agent
(and such Fronting Lender if the Fronting Lender is a Lender other than the Administrative
Agent) shall have the right to request that each Revolving Lender fund a participation in
the amount due (or the Dollar Equivalent with respect to a Letter of Credit in an Alternate
Currency) with respect to such Letter of Credit, and the Administrative Agent shall promptly
notify each Revolving Lender thereof (by facsimile or electronic communication, in each case
confirmed by telephone, or by telephone confirmed in writing). Upon such notice, but
without further action, such Fronting Lender hereby agrees to grant to each Revolving
Lender, and each Revolving Lender hereby agrees to acquire from such Fronting Lender, an
undivided participation interest in the amount due with respect to such Letter of Credit in
an amount equal to such Revolving Lender’s Applicable Commitment Percentage of the principal
amount due with respect to such Letter of Credit. In consideration and in furtherance of
the foregoing, each Revolving Lender hereby absolutely and unconditionally agrees, upon
receipt of notice as provided above, to pay to the Administrative Agent, for the account of
such Fronting Lender, such Revolving Lender’s ratable share of the amount due with respect
to such Letter of Credit (determined in accordance with such Revolving Lender’s Applicable
Commitment


 


48









 






Percentage). Each Revolving Lender acknowledges and agrees that its obligation to acquire
participations in the amount due under any Letter of Credit that is drawn but not reimbursed
by the Borrowers pursuant to this Section 2.2(b)(vi) shall be absolute and unconditional and
shall not be affected by any circumstance whatsoever, including, without limitation, the
occurrence and continuance of a Default or Event of Default, and that each such payment
shall be made without any offset, abatement, recoupment, counterclaim, withholding or
reduction whatsoever and whether or not the Revolving Credit Commitment shall have been
reduced or terminated. Each Revolving Lender shall comply with its obligation under this
Section 2.2(b)(vi) by wire transfer of immediately available funds (in Dollars, and in the
case of a Letter of Credit issued and drawn in an Alternate Currency, the Dollar Equivalent
for amounts drawn in such Alternate Currency), in the same manner as provided in Section 2.6
hereof with respect to Revolving Loans. Each Revolving Lender is hereby authorized to
record on its records such Revolving Lender’s pro rata share of the amounts paid and not
reimbursed on the Letters of Credit.




(vii) Existing Letters of Credit. Schedule 2.2 hereto contains a
description of all letters of credit (including the Bond Letter of Credit) outstanding on,
and to continue in effect after, the Closing Date (each, an “Existing Letter of Credit”).
Each Existing Letter of Credit was issued by a Fronting Lender as a “Letter of Credit” under
one of the Prior Credit Agreements and constitutes a “Letter of Credit” for all purposes
under this Agreement.




(viii) Auto-Renewal Letters of Credit. If the Administrative Borrower so
requests, a Letter of Credit shall have an automatic renewal provision; provided that any
Letter of Credit that has an automatic renewal provision must permit the Administrative
Agent (or the applicable Fronting Lender if such Fronting Lender is a Lender other than the
Administrative Agent) to prevent any such renewal by giving prior notice to the beneficiary
thereof not later than thirty (30) days prior to the renewal date of such Letter of Credit.
Once any such Letter of Credit that has automatic renewal provisions has been issued, the
Revolving Lenders shall be deemed to have authorized (but may not require) the
Administrative Agent (and such Fronting Lender) to permit at any time the renewal of such
Letter of Credit to an expiry date not later than one year after the last day of the
Commitment Period.




(ix) Letters of Credit Outstanding Beyond the Commitment Period. If any Letter
of Credit is outstanding upon the termination of the Commitment, then, upon such
termination, the Borrowers shall deposit with the Administrative Agent, for the benefit of
the Fronting Lender, with respect to all outstanding Letters of Credit, either cash or a
Supporting Letter of Credit, which, in each case, is (A) in an amount equal to one hundred
five percent (105%) of the undrawn amount of the outstanding Letters of Credit, and (B) free
and clear of all rights and claims of third parties. The cash shall be deposited in an
escrow account at a financial institution designated by the applicable Fronting Lender.
Such Fronting Lender shall be entitled to withdraw (with respect to the cash) or draw (with
respect to the Supporting Letter of Credit) amounts necessary to reimburse such Fronting
Lender for payments to be made under the Letters of Credit and
any fees and expenses associated with such Letters of Credit, or incurred pursuant to the
reimbursement agreements with respect to such Letters of Credit. The Borrowers shall also
execute such documentation as the Administrative Agent or the applicable Fronting Lender may
reasonably require in connection with the survival of the Letters of Credit beyond the
Commitment or this Agreement. After expiration of all undrawn Letters of Credit, the
Supporting Letter of Credit or the remainder of the cash, as the case may be, shall promptly
be returned to the Administrative Borrower.


 


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(x) Requests for Letters of Credit When One or More Revolving Lenders are Affected
Lenders. No Letter of Credit shall be requested or issued hereunder if any Revolving
Lender is at such time an Affected Lender hereunder, unless the Administrative Agent (and
the applicable Fronting Lender) has entered into satisfactory (to the Administrative Agent)
arrangements with the Borrowers or such Affected Lender to eliminate or mitigate the
reimbursement risk with respect to such Affected Lender (including, without limitation, the
posting of cash collateral).




(xi) Letters of Credit Issued and Outstanding When One or More Revolving Lenders
are Affected Lenders. With respect to any Letters of Credit that have been issued and
are outstanding at the time any Revolving Lender is an Affected Lender, the Administrative
Agent (and the applicable Fronting Lender) shall have the right to require that the
Borrowers or such Affected Lender cash collateralize, in form and substance satisfactory to
the Administrative Agent (and the applicable Fronting Lender), such Letters of Credit so as
to eliminate or mitigate the reimbursement risk with respect to such Affected Lender.




(c) Swing Loans.




(i) Generally. Subject to the terms and conditions of this Agreement, during
the Commitment Period, the Swing Line Lender shall make a Swing Loan or Swing Loans to the
Borrowers in such amount or amounts as the Administrative Borrower, through an Authorized
Officer, may from time to time request and to which the Swing Line Lender may agree;
provided that the Administrative Borrower shall not request any Swing Loan if, after giving
effect thereto, (A) the Revolving Credit Exposure would exceed the Revolving Credit
Commitment, or (B) the Swing Line Exposure would exceed the Swing Line Commitment. Each
Swing Loan shall be due and payable on the Swing Loan Maturity Date applicable thereto.
Each Swing Loan shall be made in Dollars.




(ii) Refunding of Swing Loans. If the Swing Line Lender so elects, by giving
notice to the Administrative Borrower and the Revolving Lenders, the Borrowers agree that
the Swing Line Lender shall have the right, in its sole discretion, to require that the then
outstanding Swing Loans be refinanced as a Revolving Loan. Such Revolving Loan shall be a
Base Rate Loan unless otherwise requested by and available to the Borrowers hereunder. Upon
receipt of such notice by the Administrative Borrower and the Revolving Lenders, the
Borrowers shall be deemed, on such day, to have requested a Revolving Loan in the principal


 


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amount
of the Swing Loan in accordance with Sections 2.2(a) and 2.6 hereof (other than the requirement set forth in Section 2.6(d) hereof). Such
Revolving Loan shall be evidenced by the Revolving Credit Notes (or, if a Revolving Lender
has not requested a Revolving Credit Note, by the records of the Administrative Agent and
such Revolving Lender). Each Revolving Lender agrees to make a Revolving Loan on the date
of such notice, subject to no conditions precedent whatsoever. Each Revolving Lender
acknowledges and agrees that such Revolving Lender’s obligation to make a Revolving Loan
pursuant to Section 2.2(a) hereof when required by this Section 2.2(c)(ii) is absolute and
unconditional and shall not be affected by any circumstance whatsoever, including, without
limitation, the occurrence and continuance of a Default or Event of Default, and that its
payment to the Administrative Agent, for the account of the Swing Line Lender, of the
proceeds of such Revolving Loan shall be made without any offset, abatement, recoupment,
counterclaim, withholding or reduction whatsoever and whether or not the Revolving Credit
Commitment shall have been reduced or terminated. The Borrowers irrevocably authorize and
instruct the Administrative Agent to apply the proceeds of any borrowing pursuant to this
Section 2.2(c)(ii) to repay in full such Swing Loan. Each Revolving Lender is hereby
authorized to record on its records relating to its Revolving Credit Note (or, if such
Revolving Lender has not requested a Revolving Credit Note, its records relating to
Revolving Loans) such Revolving Lender’s pro rata share of the amounts paid to refund such
Swing Loan. Notwithstanding the foregoing, during a Cash Dominion Period, the then
outstanding Swing Loans shall be refinanced as Revolving Loans as often as the
Administrative Agent, in its sole discretion, deems appropriate, but in no event later than
11:00 A.M. (Eastern time) on each Wednesday (or the next Business Day if such Wednesday is
not a Business Day) (each a “Settlement Date”).




(iii) Participation in Swing Loans. If, for any reason, the Swing Line Lender
is unable to or, in the opinion of the Administrative Agent, it is impracticable to, convert
any Swing Loan to a Revolving Loan pursuant to the preceding Section 2.2(c)(ii), then on any
day that a Swing Loan is outstanding (whether before or after the maturity thereof), the
Administrative Agent shall have the right to request that each Revolving Lender fund a
participation in such Swing Loan, and the Administrative Agent shall promptly notify each
Revolving Lender thereof (by facsimile or electronic communication, in each case confirmed
by telephone, or by telephone confirmed in writing). Upon such notice, but without further
action, the Swing Line Lender hereby agrees to grant to each Revolving Lender, and each
Revolving Lender hereby agrees to acquire from the Swing Line Lender, an undivided
participation interest in the right to share in the payment of such Swing Loan in an amount
equal to such Revolving Lender’s Applicable Commitment Percentage of the principal amount of
such Swing Loan. In consideration and in furtherance of the foregoing, each Revolving
Lender hereby absolutely and unconditionally agrees, upon receipt of notice as provided
above, to pay to the Administrative Agent, for the benefit of the Swing Line Lender, such
Revolving Lender’s ratable share of such Swing Loan (determined in accordance with such
Revolving Lender’s Applicable Commitment Percentage). Each Revolving Lender acknowledges
and agrees that its obligation to acquire participations in Swing Loans pursuant to this
Section 2.2(c)(iii) is absolute and unconditional and shall not be affected by any
circumstance whatsoever, including, without limitation, the occurrence and continuance
of a Default or an Event of Default, and that each such payment shall be made without any
offset, abatement, recoupment, counterclaim, withholding or reduction whatsoever and whether
or not the Revolving Credit Commitment shall have been reduced or terminated. Each
Revolving Lender shall comply with its obligation under this Section 2.2(c)(iii) by wire
transfer of immediately available funds, in the same manner as provided in Section 2.6
hereof with respect to Revolving Loans to be made by such Revolving Lender.


 


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(iv) Requests for Swing Loan When One or More Revolving Lenders are Affected
Lenders. No Swing Loan shall be requested or issued hereunder if any Revolving Lender
is at such time an Affected Lender hereunder, unless the Administrative Agent has entered
into satisfactory (to the Administrative Agent and the Swing Line Lender) arrangements with
the Borrowers or such Affected Lender to eliminate or mitigate the reimbursement risk with
respect to such Affected Lender (including, without limitation, the posting of cash
collateral).




(v) Swing Loans Outstanding When One or More Revolving Lenders are Affected
Lenders. With respect to any Swing Loans that are outstanding at the time any Revolving
Lender is an Affected Lender, the Administrative Agent shall have the right to require that
the Borrowers or such Affected Lender cash collateralize, in form and substance satisfactory
to the Administrative Agent, such Swing Loans so as to eliminate or mitigate the
reimbursement risk with respect to such Affected Lender.



Section 2.3. Term Loan Commitment. Subject to the terms and conditions of this
Agreement, the Term Lenders shall make the Term Loan to the Borrowers on the Term Loan Funding
Date, in the amount of the Term Loan Commitment. The Term Loan shall be payable in eleven (11)
consecutive quarterly installments of Two Million Nine Hundred Sixteen Thousand Six Hundred
Sixty-Six and 67/100 Dollars ($2,916,666.67), commencing on the First Term Loan Principal Payment
Date, and continuing on each Regularly Scheduled Payment Date thereafter, with the balance thereof
payable in full on the Term Loan Maturity Date. The Administrative Borrower shall notify the
Administrative Agent, in accordance with the notice provisions of Section 2.6 hereof, whether the
Term Loan will be a Base Rate Loan or one or more Eurodollar Loans. The Term Loan may be a mixture
of a Base Rate Loan and one or more Eurodollar Loans. Once the Term Loan is made, any portion of
the Term Loan repaid may not be re-borrowed; provided that, if the Term Loan Funding Date fails to
occur on or before one hundred eighty (180) days after the Closing Date, the commitment of the Term
Lenders to make the Term Loan to the Borrowers shall terminate, and the Term Lenders shall have no
further obligations under the Credit Agreement to make the Term Loan.




Section 2.4. Interest.




(a) Revolving Loans.




(i) Base Rate Loan. The Borrowers shall pay interest on the unpaid principal
amount of a Revolving Loan that is a Base Rate Loan outstanding from time to time from the
date thereof until paid at the Derived Base Rate for Revolving Loans from time to
time in effect. Interest on such Base Rate Loan shall be payable, commencing December 31,
2011, and continuing on each Regularly Scheduled Payment Date thereafter and at the maturity
thereof.


 


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(ii) Eurodollar Loans. The Borrowers shall pay interest on the unpaid
principal amount of each Revolving Loan that is a Eurodollar Loan outstanding from time to
time, fixed in advance on the first day of the Interest Period applicable thereto through
the last day of the Interest Period applicable thereto (but subject to changes in the
Applicable Margin for Eurodollar Loans), at the Derived Eurodollar Rate for Revolving Loans.
Interest on such Eurodollar Loan shall be payable on each Interest Adjustment Date with
respect to an Interest Period (provided that, if an Interest Period shall exceed three
months, the interest must also be paid every three months, commencing three months from the
beginning of such Interest Period).




(iii) Alternate Currency Loans. The Borrowers shall pay interest on the unpaid
principal amount of each Revolving Loan that is an Alternate Currency Loan outstanding from
time to time, fixed in advance on the first day of the Interest Period applicable thereto
(but subject to changes in the Applicable Margin for Alternate Currency Loans) through the
last day of the Interest Period applicable thereto, at the Derived Alternate Currency Rate.
Interest on such Alternate Currency Loan shall be payable on each Interest Adjustment Date
with respect to an Interest Period (provided that, if an Interest Period shall exceed three
months, the interest must also be paid every three months, commencing three months from the
beginning of such Interest Period).



(b) Swing Loans. The Borrowers shall pay interest to the Administrative Agent, for
the sole benefit of the Swing Line Lender (and any Revolving Lender that shall have funded a
participation in such Swing Loan), on the unpaid principal amount of each Swing Loan outstanding
from time to time from the date thereof until paid at the Derived Base Rate for Revolving Loans
from time to time in effect. Interest on Swing Loans shall be payable on each Regularly Scheduled
Payment Date. Each Swing Loan shall bear interest for a minimum of one day.




(c) Term Loan.




(i) Base Rate Loan. With respect to any portion of the Term Loan that is a
Base Rate Loan, the Borrowers shall pay interest on the unpaid principal amount thereof
outstanding from time to time from the date thereof until paid, commencing December 31,
2011, and continuing on each Regularly Scheduled Payment Date thereafter and at the maturity
thereof, at the Derived Base Rate for the Term Loan from time to time in effect.




(ii) Eurodollar Loans. With respect to any portion of the Term Loan that is a
Eurodollar Loan, the Borrowers shall pay interest on the unpaid principal amount of such
Eurodollar Loan outstanding from time to time, fixed in advance on the first day of the
Interest Period applicable thereto through the last day of the Interest Period applicable
thereto (but subject to changes in the Applicable Margin for Eurodollar Loans), at the
Derived Eurodollar Rate for the Term Loan. Interest on such Eurodollar Loan shall be
payable on each Interest Adjustment Date with respect to an Interest Period (provided that,
if an Interest Period shall exceed three months, the interest must also be paid every three
months, commencing three months from the beginning of such Interest Period).


 


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(d) Default Rate. Anything herein to the contrary notwithstanding, if an Event of
Default shall occur, upon the election of the Administrative Agent or the Required Lenders (i) the
principal of each Loan and the unpaid interest thereon shall bear interest, until paid, at the
Default Rate, (ii) the fee for the aggregate undrawn amount of all issued and outstanding Letters
of Credit shall be increased by two percent (2%) in excess of the rate otherwise applicable
thereto, and (iii) in the case of any other amount not paid when due from the Borrowers hereunder
or under any other Loan Document, such amount shall bear interest at the Default Rate; provided
that, during an Event of Default under Section 8.1 or 8.12 hereof, the applicable Default Rate
shall apply without any election or action on the part of the Administrative Agent or any Lender.



(e) Limitation on Interest. In no event shall the rate of interest hereunder exceed
the maximum rate allowable by law. Notwithstanding anything to the contrary contained in any Loan
Document, the interest paid or agreed to be paid under the Loan Documents shall not exceed the
maximum rate of non-usurious interest permitted by applicable law (the “Maximum Rate”). If the
Administrative Agent or any Lender shall receive interest in an amount that exceeds the Maximum
Rate, the excess interest shall be applied to the principal of the Loans or, if it exceeds such
unpaid principal, refunded to the Administrative Borrower for distribution to the Borrowers, as
appropriate. In determining whether the interest contracted for, charged, or received by the
Administrative Agent or a Lender exceeds the Maximum Rate, such Person may, to the extent permitted
by applicable law, (i) characterize any payment that is not principal as an expense, fee, or
premium rather than interest, (ii) exclude voluntary prepayments and the effects thereof, and (iii)
amortize, prorate, allocate, and spread in equal or unequal parts the total amount of interest
throughout the contemplated term of the Obligations.




Section 2.5. Evidence of Indebtedness.



(a) Revolving Loans. Upon the request of a Revolving Lender, to evidence the
obligation of the Borrowers to repay the Revolving Loans made by such Revolving Lender and to pay
interest thereon, the Borrowers shall execute a Revolving Credit Note, payable to the order of such
Revolving Lender in the principal amount equal to its Applicable Commitment Percentage of the
Revolving Amount, or, if less, the aggregate unpaid principal amount of Revolving Loans made by
such Revolving Lender; provided that the failure of a Revolving Lender to request a Revolving
Credit Note shall in no way detract from the Borrowers’ obligations to such Revolving Lender
hereunder.



(b) Swing Loans. Upon the request of the Swing Line Lender, to evidence the
obligation of the Borrowers to repay the Swing Loans and to pay interest thereon, the Borrowers
shall execute a Swing Line Note, payable to the order of the Swing Line Lender in the principal
amount of the Swing Line Commitment, or, if less, the aggregate unpaid principal amount of
Swing Loans made by the Swing Line Lender; provided that the failure of the Swing Line Lender to
request a Swing Line Note shall in no way detract from the Borrowers’ obligations to the Swing Line
Lender hereunder.


 


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(c) Term Loan. Upon the request of a Term Lender, to evidence the obligation of the
Borrowers to repay the portion of the Term Loan made by such Term Lender and to pay interest
thereon, the Borrowers shall execute a Term Note, payable to the order of such Term Lender in the
principal amount of its Applicable Commitment Percentage of the Term Loan Commitment; provided that
the failure of such Term Lender to request a Term Note shall in no way detract from Borrowers’
obligations to such Term Lender hereunder.




Section 2.6. Notice of Loans and Credit Events; Funding of Loans.



(a) Notice of Loans and Credit Events. The Administrative Borrower, through an
Authorized Officer, shall provide to the Administrative Agent a Notice of Loan prior to (i) 11:00
A.M. (Eastern time) on the proposed date of borrowing of, or conversion of a Loan to, a Base Rate
Loan, (ii) 11:00 A.M. (Eastern time) three Business Days prior to the proposed date of borrowing
of, continuation of, or conversion of a Loan to, a Eurodollar Loan, (iii) 11:00 A.M. (Eastern time)
three Business Days prior to the proposed date of borrowing of an Alternate Currency Loan, and (iv)
2:00 P.M. (Eastern time) on the proposed date of borrowing of a Swing Loan (or such later time as
agreed to from time to time by the Swing Line Lender); provided that, during a Cash Dominion
Period, if a request for a Revolving Loan that is a Base Rate Loan shall not be on a Settlement
Date, such request shall be deemed to be a request for a Swing Loan (unless the Administrative
Agent shall elect to have the Revolving Lenders fund such request with a Revolving Loan that meets
the requirements of this Section 2.6) so long as the Swing Line Exposure does not exceed the Swing
Line Commitment. An Authorized Officer of the Administrative Borrower may verbally request a Loan,
so long as a Notice of Loan is received by the end of the same Business Day, and, if the
Administrative Agent or any Lender provides funds or initiates funding based upon such verbal
request, the Borrowers shall bear the risk with respect to any information regarding such funding
that is later determined to have been incorrect. The Borrowers shall comply with the notice
provisions set forth in Section 2.2(b) hereof with respect to Letters of Credit.



(b) Funding of Loans. The Administrative Agent shall notify the appropriate Lenders
of the date, amount, type of currency and Interest Period (if applicable) promptly upon the receipt
of a Notice of Loan (other than for a Swing Loan, or a Revolving Loan to be funded as a Swing
Loan), and, in any event, by 2:00 P.M. (Eastern time) on the date such Notice of Loan is received.
On the date that the Credit Event set forth in such Notice of Loan is to occur, each such Revolving
Lender shall provide to the Administrative Agent, not later than 3:00 P.M. (Eastern time), the
amount in Dollars, or, with respect to an Alternate Currency, in the applicable Alternate Currency,
in federal or other immediately available funds, required of it. If the Administrative Agent shall
elect to advance the proceeds of such Loan prior to receiving funds from such Revolving Lender, the
Administrative Agent shall have the right, upon prior notice to the Administrative Borrower, to
debit any account of a Credit Party or otherwise receive such amount from the Borrowers, promptly
after demand, in the event that such Revolving Lender
shall fail to reimburse the Administrative Agent in accordance with this subsection (b). The
Administrative Agent shall also have the right to receive interest from such Revolving Lender at
the Federal Funds Effective Rate in the event that such Revolving Lender shall fail to provide its
portion of the Loan on the date requested and the Administrative Agent shall elect to provide such
funds.


 


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(c) Conversion and Continuation of Loans.




(i) At the request of the Administrative Borrower to the Administrative Agent, subject
to the notice and other provisions of this Agreement, the appropriate Lenders shall convert
a Base Rate Loan to one or more Eurodollar Loans at any time and shall convert a Eurodollar
Loan to a Base Rate Loan on any Interest Adjustment Date applicable thereto. Swing Loans
may be converted by the Swing Line Lender to Revolving Loans in accordance with Section
2.2(c)(ii) hereof. No Alternate Currency Loan may be converted to a Base Rate Loan or
Eurodollar Loan and no Base Rate Loan or Eurodollar Loan may be converted to an Alternate
Currency Loan.




(ii) At the request of the Administrative Borrower to the Administrative Agent, subject
to the notice and other provisions of this Agreement, the appropriate Lenders shall continue
one or more Eurodollar Loans as of the end of the applicable Interest Period as a new
Eurodollar Loan with a new Interest Period.




(d) Minimum Amount for Loans. Each request for:




(i) a LIBOR Fixed Rate Loan shall be in an amount (or, with respect to an Alternate
Currency Loan, such approximately comparable amount as shall result in an amount rounded to
the nearest whole number) of not less than One Million Dollars ($1,000,000), increased by
increments of One Million Dollars ($1,000,000) (or, with respect to an Alternate Currency
Loan, such approximately comparable amount as shall result in an amount rounded to the
nearest whole number);




(ii) a Base Rate Loan shall be in an amount of not less than One Million Dollars
($1,000,000), increased by increments of One Million Dollars ($1,000,000), provided that,
during a Cash Dominion Period, there shall be no minimum amount for Base Rate Loans; and




(iii) a Swing Loan shall be in an amount of not less than Five Hundred Thousand Dollars
($500,000), or such lower amount as may be agreed to by the Swing Line Lender, provided
that, during a Cash Dominion Period, there shall be no minimum amount for Swing Loans.



(e) Interest Periods. The Administrative Borrower shall not request that LIBOR Fixed
Rate Loans be outstanding for more than eight different Interest Periods at the same time, or such
higher number of Interest Periods as agreed to in writing by the Administrative Agent.


 


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(f) Advancing of Non Pro-Rata Revolving Loans. Notwithstanding anything in this
Agreement to the contrary, if the Borrowers request a Revolving Loan pursuant to Section 2.6(a)
hereof (and all conditions precedent set forth in Section 4.1 hereof are met) at a time when one or
more Revolving Lenders are Defaulting Lenders, the Administrative Agent shall have the option, in
its sole discretion, to require the non-Defaulting Lenders to honor such request by making a non
pro-rata Revolving Loan to the Borrowers in an amount equal to (i) the amount requested by the
Administrative Borrower, minus (ii) the portions of such Revolving Loan that should have been made
by such Defaulting Lenders. For purposes of such Revolving Loans, the Revolving Lenders that are
making such Revolving Loan shall do so in the amount of their Applicable Commitment Percentages of
the amount requested by the Borrowers. For the avoidance of doubt, in no event shall the aggregate
outstanding principal amount of Loans made by a Lender (other than Swing Loans made by the Swing
Line Lender), when combined with such Lender’s pro rata share, if any, of the Letter of Credit
Exposure and the Swing Line Exposure, be in excess of the Maximum Amount for such Lender.




Section 2.7. Payment on Loans and Other Obligations.



(a) Payments Generally. Each payment made hereunder by a Credit Party shall be made
without any offset, abatement, recoupment, counterclaim, withholding or reduction whatsoever.



(b) Payments in Alternate Currency. With respect to any Alternate Currency Loan, all
payments (including prepayments) to any Lender of the principal of or interest on such Alternate
Currency Loan shall be made in the same Alternate Currency as the original Loan. For
clarification, the amount outstanding on any Alternate Currency Loan for purposes of repayment on
the last day of the applicable Interest Period shall be measured in the Alternate Currency and not
by the Dollar Equivalent of such amount. With respect to any Letter of Credit issued in an
Alternate Currency, all payments to the Fronting Lender (and to any Lender that shall have funded
its participation in such Letter of Credit) shall be made in Dollars in the Dollar Equivalent (as
determined on the date and at the time of drawing of such Letter of Credit) of the amount of such
Letter of Credit. All such payments shall be remitted by the Borrowers to the Administrative
Agent, at the address of the Administrative Agent for notices referred to in Section 12.4 hereof
(or at such other office or account as designated in writing by the Administrative Agent to the
Administrative Borrower), for the account of the Revolving Lenders (or the appropriate Fronting
Lender or the Swing Line Lender, as appropriate) not later than 11:00 A.M. (Eastern time) on the
due date thereof in same day funds. Any such payments received by the Administrative Agent after
11:00 A.M. (Eastern time) shall be deemed to have been made and received on the next Business Day.



(c) Payments in Dollars from Borrowers. With respect to (i) any Loan (other than an
Alternate Currency Loan), or (ii) any other payment to the Administrative Agent and the Lenders
that shall not be covered by subsection (b) above, all such payments (including prepayments) to the
Administrative Agent of the principal of or interest on such Loan or other payment, including but
not limited to principal, interest, fees or any other amount owed by the Borrowers under this
Agreement, shall be made in Dollars. All payments described in this subsection (c) shall be
remitted to the Administrative Agent, at the address of the Administrative Agent for notices
referred to in Section 12.4 hereof for the account of the appropriate Lenders (or the appropriate
Fronting Lender or the Swing Line Lender, as appropriate) not later than 11:00 A.M. (Eastern time)
on the due date thereof in immediately available funds. Any such payments received by the
Administrative Agent (or such Fronting Lender or the Swing Line Lender) after 11:00 A.M. (Eastern
time) shall be deemed to have been made and received on the next Business Day.


 


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(d) Payments to Lenders. Upon the Administrative Agent’s receipt of payments
hereunder, the Administrative Agent shall immediately distribute to the appropriate Lenders (except
with respect to Swing Loans, which shall be paid to the Swing Line Lender and any Lender that has
funded a participation in the Swing Loans, or, with respect to Letters of Credit, certain of which
payments shall be paid to the Fronting Lender issuing such Letter of Credit) their respective
ratable shares, if any, of the amount of principal, interest, and commitment and other fees
received by the Administrative Agent for the account of such Lender. Notwithstanding the
foregoing, during a Cash Dominion Period, the Administrative Agent shall distribute payments
received hereunder on each Settlement Date as set forth in Section 2.17(d) hereof (and more
frequently if deemed appropriate by the Administrative Agent). Payments received by the
Administrative Agent in Dollars shall be delivered to the Lenders in Dollars in immediately
available funds. Payments received by the Administrative Agent in any Alternate Currency shall be
delivered to the Lenders in such Alternate Currency in same day funds. Each appropriate Lender
shall record any principal, interest or other payment, the principal amounts of Base Rate Loans,
LIBOR Fixed Rate Loans and Swing Loans, and Letters of Credit, the type of currency for each Loan,
all prepayments and the applicable dates, including Interest Periods, with respect to the Loans
made, and payments received by such Lender, by such method as such Lender may generally employ;
provided that failure to make any such entry shall in no way detract from the obligations of the
Borrowers under this Agreement or any Note. The aggregate unpaid amount of Loans, types of Loans,
Interest Periods and similar information with respect to the Loans and Letters of Credit set forth
on the records of the Administrative Agent shall be rebuttably presumptive evidence with respect to
such information, including the amounts of principal, interest and fees owing to each Lender.



(e) Timing of Payments. Whenever any payment to be made hereunder, including, without
limitation, any payment to be made on any Loan, shall be stated to be due on a day that is not a
Business Day, such payment shall be made on the next Business Day and such extension of time shall
in each case be included in the computation of the interest payable on such Loan; provided that,
with respect to a LIBOR Fixed Rate Loan, if the next Business Day shall fall in the succeeding
calendar month, such payment shall be made on the preceding Business Day and the relevant Interest
Period shall be adjusted accordingly.



(f) Affected Lender. To the extent that the Administrative Agent receives any
payments or other amounts for the account of a Revolving Lender that is an Affected Lender, at the
discretion of the Administrative Agent, such Affected Lender shall be deemed to have requested that
the Administrative Agent use such payment or other amount (or any portion thereof, at the
discretion of the Administrative Agent) first, to cash collateralize its unfunded risk
participation in Swing Loans and the Letters of Credit pursuant to Sections 2.2(b)(vi),
2.2(c)(iii),
and 2.6(b) hereof, and, with respect to any Defaulting Lender, second, to fulfill its obligations
to make Loans.



(g) Payment of Non Pro-Rata Revolving Loans. Notwithstanding anything in this
Agreement to the contrary, at the sole discretion of the Administrative Agent, in order to pay
Revolving Loans made to Borrowers that were not advanced pro rata by the Revolving Lenders, any
payment of any Loan may first be applied to such Revolving Loans of the Borrowers that were not
advanced pro rata.


 


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Section 2.8. Prepayment.




(a) Right to Prepay.




(i) The Borrowers shall have the right at any time or from time to time to prepay, on a
pro rata basis for all of the appropriate Lenders (except with respect to Swing Loans, which
shall be paid to the Swing Line Lender and any Lender that has funded a participation in
such Swing Loan), all or any part of the principal amount of the Loans then outstanding, as
designated by the Administrative Borrower, representing the obligations under any Specific
Commitment with the proceeds of such prepayment to be distributed on a pro rata basis to the
holders of the Specific Commitment being prepaid. Such payment shall include interest
accrued on the amount so prepaid to the date of such prepayment and any amount payable under
Article III hereof with respect to the amount being prepaid. Prepayments of Base Rate Loans
shall be without any premium or penalty. Each prepayment of a Term Loan shall be applied to
the principal installments thereof in the inverse order of their respective maturities.




(ii) The Borrowers shall have the right, at any time or from time to time, to prepay,
for the benefit of the Swing Line Lender (and any Lender that has funded a participation in
such Swing Loan), all or any part of the principal amount of the Swing Loans then
outstanding, as designated by the Administrative Borrower, plus interest accrued on the
amount so prepaid to the date of such prepayment.




(iii) Notwithstanding anything in this Section 2.8 or otherwise to the contrary, at the
discretion of the Administrative Agent, in order to prepay Revolving Loans that were not
advanced pro rata by all of the Revolving Lenders, any prepayment of a Loan shall first be
applied to Revolving Loans made by the Revolving Lenders during any period in which a
Defaulting Lender or Insolvent Lender shall exist.



(b) Notice of Prepayment. The Administrative Borrower shall give the Administrative
Agent irrevocable written notice of prepayment of (i) a Base Rate Loan or Swing Loan by no later
than 11:00 A.M. (Eastern time) one Business Day before the Business Day on which such prepayment is
to be made, and (ii) a LIBOR Fixed Rate Loan by no later than 1:00 P.M. (Eastern time) three
Business Days before the Business Day on which such prepayment is to be made; provided that this
notice requirement shall not be applicable, during a Cash Dominion Period, with respect to the
daily application of funds in the Cash Collateral Account to prepay the Loans.



(c) Minimum Amount. Each prepayment of a LIBOR Fixed Rate Loan shall be in the
principal amount of not less than the lesser of One Million Dollars ($1,000,000), or the principal
amount of such Loan (or, with respect to an Alternate Currency Loan, the Dollar Equivalent (rounded
to a comparable amount) of such amount), or, with respect to a Swing Loan, the principal balance of
such Swing Loan, except in the case of a mandatory payment pursuant to Section 2.12 or Article III
hereof.


 


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Section 2.9. Commitment and Other Fees.



(a) Commitment Fee. The Borrowers shall pay to the Administrative Agent, for the
ratable account of the Revolving Lenders, as a consideration for the Revolving Credit Commitment, a
commitment fee from the Closing Date to and including the last day of the Commitment Period,
payable quarterly, at a rate per annum equal to (i) thirty-seven and one-half (37.50) basis points,
multiplied by (ii) (A) the average daily Revolving Amount in effect during such quarter, minus (B)
the average daily Revolving Credit Exposure (exclusive of the Swing Line Exposure) during such
quarter. The commitment fee shall be payable in arrears, on December 31, 2011 and continuing on
each Regularly Scheduled Payment Date thereafter, and on the last day of the Commitment Period.



(b) Ticking Fee. The Borrowers shall pay to the Administrative Agent, for the ratable
account of the Term Lenders, as a consideration for the Term Loan Commitment, a ticking fee from
the Closing Date to and including the earlier of (i) the Term Loan Funding Date or (ii) April 10,
2012, at a rate per annum equal to (A) for the period from the Closing Date to January 10, 2012,
thirty-seven and one-half (37.50) basis points, multiplied by the Term Loan Commitment, and (B) for
the period from January 11, 2012 through April 10, 2012, fifty (50.00) basis points, multiplied by
the Term Loan Commitment. The term loan commitment fee shall be payable on December 31, 2011 and
continuing on each Regularly Scheduled Payment Date thereafter and on the earlier of (1) the Term
Loan Funding Date, and (2) April 10, 2012.



(c) Administrative Agent Fee. The Borrowers shall pay to the Administrative Agent,
for its sole benefit, the fees set forth in the Administrative Agent Fee Letter.



(d) Collateral Audit and Appraisal Fees. The Borrowers shall promptly reimburse the
Administrative Agent, for its sole benefit, for all costs and expenses relating to any collateral
assessment that may be conducted from time to time by or on behalf of the Administrative Agent, the
scope and frequency of which shall be in the sole discretion of the Administrative Agent; provided
that, absent an Event of Default, the Borrowers need not reimburse the Administrative Agent for
more than (i) three collateral field audits during a calendar year, or (ii) one Inventory appraisal
during a calendar year. The estimated costs and expenses for field audits and appraisals performed
by the Administrative Agent during the absence of an Event of Default shall be as set forth in the
Administrative Agent Fee Letter.



(e) Authorization to Debit Account. Each Credit Party hereby agrees that the
Administrative Agent has the right to debit from any Deposit Account of one or more Credit
Parties, amounts owing to the Administrative Agent and the Lenders by any Borrower under this
Agreement and the Loan Documents for payment of fees, expenses and other amounts incurred or owing
in connection therewith.


 


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Section 2.10. Modifications to Commitment.



(a) Optional Reduction of Revolving Credit Commitment. The Administrative Borrower
may at any time and from time to time permanently reduce in whole or ratably in part the Revolving
Amount to an amount not less than the then existing Revolving Credit Exposure, by giving the
Administrative Agent not fewer than five Business Days’ (or thirty (30) days if the Total
Commitment Amount is to be reduced or terminated in its entirety) written notice of such reduction,
provided that any such partial reduction shall be in an aggregate amount, for all of the Lenders,
of not less than Five Million Dollars ($5,000,000), increased in increments of One Million Dollars
($1,000,000). The Administrative Agent shall promptly notify each Revolving Lender of the date of
each such reduction and such Revolving Lender’s proportionate share thereof. After each such
partial reduction, the commitment fees payable hereunder shall be calculated upon the Revolving
Amount as so reduced. If the Borrowers reduce in whole the Revolving Credit Commitment, on the
effective date of such reduction (the Borrowers having prepaid in full the unpaid principal
balance, if any, of the Loans, together with all interest (if any) and commitment and other fees
accrued and unpaid with respect thereto, and provided that no Letter of Credit Exposure or Swing
Line Exposure shall exist), all of the Revolving Credit Notes shall be delivered to the
Administrative Agent marked “Canceled” and the Administrative Agent shall redeliver such Revolving
Credit Notes to the Administrative Borrower. Any partial reduction in the Revolving Amount shall
be effective during the remainder of the Commitment Period. Upon each decrease of the Revolving
Amount, the Maximum Revolving Amount and the Total Commitment Amount shall be proportionally
decreased.




(b) Increase in Commitment.




(i) At any time during the Commitment Increase Period, the Administrative Borrower may
request that the Administrative Agent increase the Revolving Amount from the Closing
Revolving Amount up to an amount that shall not exceed the Maximum Revolving Amount. Each
such request for an increase shall be in an amount of at least Twenty-Five Million Dollars
($25,000,000) (increased by increments of One Million Dollars ($1,000,000)), or such lesser
amount that shall cause the Revolving Amount to increase up to the Maximum Revolving Amount,
and may be made by either (A) increasing, for one or more Revolving Lenders, with their
prior written consent, their respective Revolving Credit Commitments, or (B) including one
or more Additional Lenders, each with a new commitment under the Revolving Credit
Commitment, as a party to this Agreement (each an “Additional Commitment” and, collectively,
the “Additional Commitments”).




(ii) During the Commitment Increase Period, all of the Lenders agree that the
Administrative Agent, in its sole discretion, may permit one or more Additional Commitments
upon satisfaction of the following requirements: (A) each Additional
Lender, if any, shall execute an Additional Lender Assumption Agreement, (B) the
Administrative Agent shall provide to the Administrative Borrower and each Lender a revised
Schedule 1 to this Agreement, including revised Applicable Commitment Percentages
for each of the Revolving Lenders with respect to the Revolving Credit Commitment, if
appropriate, at least three Business Days prior to the date of the effectiveness of such
Additional Commitments (each an “Additional Lender Assumption Effective Date”), (C) the
Borrowers shall execute and deliver to the Administrative Agent and the Revolving Lenders
such replacement or additional Revolving Credit Notes as shall be required by the
Administrative Agent (and requested by the Lenders); and (D) the Borrowers shall, on the
Additional Lender Assumption Effective Date, deliver to the Administrative Agent, for the
benefit of the Lenders, an opinion of counsel, in form and substance satisfactory to the
Administrative Agent, indicating that the Obligations incurred pursuant to the Additional
Commitments are permitted to be incurred, and permitted to be secured, pursuant to the
Subordinated Indenture (or any replacement indenture or similar document). The Lenders
hereby authorize the Administrative Agent to execute each Additional Lender Assumption
Agreement on behalf of the Lenders.


 


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(iii) On each Additional Lender Assumption Effective Date, the Revolving Lenders shall
make adjustments among themselves with respect to the Revolving Loans then outstanding and
amounts of principal, interest, commitment fees and other amounts paid or payable with
respect thereto as shall be necessary, in the opinion of the Administrative Agent, in order
to reallocate among such Revolving Lenders such outstanding amounts, based on the revised
Applicable Commitment Percentages and to otherwise carry out fully the intent and terms of
this Section 2.10(b) (and the appropriate Borrower shall pay to the Revolving Lenders any
amounts that would be payable pursuant to Section 3.3 hereof if such adjustments among the
Revolving Lenders would cause a prepayment of one or more LIBOR Fixed Rate Loans). In
connection therewith, it is understood and agreed that the Maximum Amount of any Lender will
not be increased (or decreased except pursuant to subsection (a) hereof) without the prior
written consent of such Lender. The Administrative Borrower shall not request any increase
in the Revolving Amount pursuant to this subsection (b) if a Default or an Event of Default
shall then exist, or, after giving pro forma effect to any such increase, would exist. Upon
each increase of the Revolving Amount, the Total Commitment Amount shall be increased by a
like amount.



Section 2.11. Computation of Interest and Fees. With the exception of Base Rate
Loans, interest on Loans, Letter of Credit fees, Related Expenses and commitment and other fees and
charges hereunder shall be computed on the basis of a year having three hundred sixty (360) days
and calculated for the actual number of days elapsed. With respect to Base Rate Loans, interest
shall be computed on the basis of a year having three hundred sixty-five (365) days or three
hundred sixty-six (366) days, as the case may be, and calculated for the actual number of days
elapsed.




Section 2.12. Mandatory Payments.



(a) Revolving Credit Exposure. If, at any time, the Revolving Credit Exposure shall
exceed the Revolving Credit Commitment, the Borrowers shall, as promptly as practicable, but in no
event later than the next Business Day, pay an aggregate principal amount of the Revolving Loans
sufficient to bring the Revolving Credit Exposure within the Revolving Credit Commitment.



(b) Swing Line Exposure. If, at any time, the Swing Line Exposure shall exceed the
Swing Line Commitment, the Borrowers shall, as promptly as practicable, but in no event later than
the next Business Day, pay an aggregate principal amount of the Swing Loans sufficient to bring the
Swing Line Exposure within the Swing Line Commitment.


 


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(c) Mandatory Prepayments. The Borrowers shall make Mandatory Prepayments (each a
“Mandatory Prepayment”) in accordance with the following provisions:




(i) Excess Cash Flow. The Borrowers shall, on a date mutually agreeable to the
Administrative Agent and the Administrative Borrower, but in no event later than March 31 of
each year, until the Term Loan shall have been paid in full, make a prepayment on the Term
Loan in an amount not less than twenty-five percent (25%) of the Excess Cash Flow for the
most recently completed fiscal year (commencing with the fiscal year ending December 31,
2012), if any.




(ii) Sale of Assets. If, during any fiscal year of Gibraltar, the Companies
have received cumulative Net Cash Proceeds of at least Ten Million Dollars ($10,000,000)
during such fiscal year from one or more Asset Dispositions made pursuant to Section 5.12
hereof, not later than three Business Days following the date of receipt of any Cash
Proceeds in excess of such amount, Borrowers shall make a Mandatory Prepayment in an amount
equal to one hundred percent (100%) of the Net Cash Proceeds then received in excess of such
amount from any Asset Disposition.




(iii) Additional Indebtedness. Not later than the Business Day following the
date of the receipt by any Credit Party of the cash proceeds (net of underwriting discounts
and commissions, placement agent fees and other customary fees and costs associated
therewith) from any sale or issuance of any Indebtedness (other than Subordinated
Indebtedness incurred pursuant to an Acquisition and as permitted by Section 5.8(j) hereof)
incurred pursuant to Section 5.8(g), (h), (i) or (j) hereof, Borrowers shall make a
Mandatory Prepayment in an amount equal to one hundred percent (100%) of such net cash
proceeds.




(iv) Recovery Event. If, during any fiscal year of Gibraltar, any Credit Party
shall have received cumulative Cash Proceeds during such fiscal year from one or more
Recovery Events equal to more than five percent (5%) of Consolidated Net Worth, not later
than the third Business Day following the date of receipt of any Cash Proceeds in excess of
such amount, the Borrowers will make a Mandatory Prepayment of the Term Loan with an amount
equal to one hundred percent (100%) of the Net Cash Proceeds then received in excess of such
amount from any Recovery Event; provided that if (A) no Default or Event of Default has
occurred and is continuing, and (B) the Administrative
Borrower notifies the Administrative Agent and the Lenders in writing that it intends to
rebuild or restore the affected property and that such rebuilding or restoration can be
accomplished within two hundred seventy (270) days out of such Cash Proceeds and other funds
available to the Borrowers, then no such Mandatory Prepayment shall be required if the
Borrowers actually use such Cash Proceeds for application to the costs of rebuilding or
restoration of the affected property within such two hundred seventy (270) day period. Any
amounts not so applied to the costs of rebuilding or restoration within such two hundred
seventy (270) day period shall be applied to the Mandatory Prepayment of the Term Loan as
provided above.


 


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(d) Application of Mandatory Prepayments.




(i) Involving a Company Prior to an Event of Default. So long as no Event of
Default shall have occurred, each Mandatory Prepayment required to be made pursuant to
subsection (c) hereof shall be applied (A) first, to the Term Loan, until paid in full
(provided that any Term Lender may decline to accept its pro rata share of such Mandatory
Prepayment, in which case such Term Lender’s share of such Mandatory Prepayment shall be
applied as set forth in subpart (B) hereof), and (B) second, to any outstanding Revolving
Loans; provided that any Mandatory Prepayment made prior to the Term Loan Funding Date shall
be applied to outstanding Revolving Loans unless the Required Lenders, in their sole
discretion, shall require such Mandatory Prepayment be applied to permanently reduce the
Term Loan Commitment.




(ii) Involving a Company After an Event of Default. If a Mandatory Prepayment
is required to be made pursuant to subsection (c) hereof at the time that an Event of
Default shall have occurred, then such Mandatory Prepayment shall be paid by the
Administrative Borrower to the Administrative Agent to be applied to the following, on a pro
rata basis among: (A) the Revolving Amount (with payments to be made in the following order:
Revolving Loans, Swing Loans, and to be held by the Administrative Agent in a special
account as security for any Letter of Credit Exposure pursuant to subsection (iii) hereof),
and (B) the unpaid principal balance of the Term Loan.




(iii) Involving Letters of Credit. Any amounts to be distributed for
application to a Revolving Lender’s liabilities with respect to any Letter of Credit
Exposure as a result of a Mandatory Prepayment shall be held by the Administrative Agent in
an interest bearing trust account (the “Special Trust Account”) as collateral security for
such liabilities until a drawing on any Letter of Credit, at which time such amounts,
together with interest accrued thereon, shall be released by the Administrative Agent and
applied to such liabilities. If any such Letter of Credit shall expire without having been
drawn upon in full, the amounts held in the Special Trust Account with respect to the
undrawn portion of such Letter of Credit, together with interest accrued thereon, shall be
applied by the Administrative Agent in accordance with the provisions of subsections (i) and
(ii) above.



(e) Mandatory Payments Generally. Unless otherwise designated by the Administrative
Borrower, each Mandatory Prepayment made with respect to a Specific
Commitment pursuant to subsection (a) or (c) hereof shall be applied in the following order: (i)
first, to the outstanding Base Rate Loans, (ii) second, to the outstanding Eurodollar Loans, and
(iii) third, to the outstanding Alternate Currency Loans (or, at the discretion of the
Administrative Agent, to cash collateralize Alternate Currency Loans until the applicable Interest
Adjustment Date); provided that, in each case, if the outstanding principal amount of any LIBOR
Fixed Rate Loan shall be reduced to an amount less than the minimum amount set forth in Section
2.6(d) hereof as a result of such prepayment, then such LIBOR Fixed Rate Loan shall be converted
into a Base Rate Loan on the date of such prepayment. Any prepayment of a LIBOR Fixed Rate Loan or
Swing Loan pursuant to this Section 2.12 shall be subject to the prepayment provisions set forth in
Article III hereof. Each Mandatory Prepayment made with respect to the Term Loan shall be applied
to the payments of principal in the inverse order of maturities.


 


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Section 2.13. Liability of Borrowers.



(a) Joint and Several Liability. Each Borrower hereby authorizes the Administrative
Borrower or any other Borrower to request Loans or Letters of Credit hereunder. Each Borrower
acknowledges and agrees that the Administrative Agent and the Lenders are entering into this
Agreement at the request of each Borrower and with the understanding that each Borrower is and
shall remain fully liable, jointly and severally, for payment in full of the Obligations and any
other amount payable under this Agreement and the other Loan Documents. Each Borrower agrees that
it is receiving or will receive a direct pecuniary benefit for each Loan made or Letter of Credit
issued hereunder.



(b) Appointment of Administrative Borrower. Each Credit Party hereby irrevocably
appoints the Administrative Borrower as the borrowing agent and attorney-in-fact for all Credit
Parties, which appointment shall remain in full force and effect unless and until the
Administrative Agent shall have received prior written notice signed by each Credit Party that such
appointment has been revoked and that another Borrower has been appointed the Administrative
Borrower. Each Credit Party hereby irrevocably appoints and authorizes the Administrative Borrower
to (i) provide the Administrative Agent with all notices with respect to Loans and Letters of
Credit obtained for the benefit of any Borrower and all other notices and instructions under this
Agreement, (ii) take such action as the Administrative Borrower deems appropriate on its behalf to
obtain Loans and Letters of Credit, and (iii) exercise such other powers as are reasonably
incidental thereto to carry out the purposes of this Agreement. It is understood that the handling
of the Collateral of the Credit Parties in a combined fashion, as more fully set forth herein, is
done solely as an accommodation to the Borrowers in order to utilize the collective borrowing
powers of the Credit Parties in the most efficient and economical manner and at their request, and
that neither the Administrative Agent nor any Lender shall incur liability to any Credit Party as a
result hereof. Each Credit Party expects to derive benefit, directly or indirectly, from the
handling of the Collateral in a combined fashion since the successful operation of each Credit
Party is dependent on the continued successful performance of the integrated group.



(c) Maximum Liability of GSCNY. Anything in this Agreement or any other Loan Document
to the contrary notwithstanding, in no event shall the maximum liability of GSCNY
exceed the maximum amount that (after giving effect to the incurring of the obligations hereunder
and to any rights to contribution of GSCNY from other Affiliates of GSCNY) would not render the
rights to payment of the Administrative Agent and the Lenders hereunder void, voidable or avoidable
under any applicable fraudulent transfer law.


 


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(d) Waivers of Each Borrower. In the event that any obligation of any Borrower under
this Agreement is deemed to be an agreement by such Borrower to answer for the debt or default of
another Credit Party or as an hypothecation of property as security therefor, each Borrower
represents and warrants that (i) no representation has been made to such Borrower as to the
creditworthiness of such other Credit Party, and (ii) such Borrower has established adequate means
of obtaining from such other Credit Party on a continuing basis, financial or other information
pertaining to such other Credit Party’s financial condition. Each Borrower expressly waives,
except as expressly required under this Agreement, diligence, demand, presentment, protest and
notice of every kind and nature whatsoever, consents to the taking by the Administrative Agent and
the Lenders of any additional security of another Credit Party for the obligations secured hereby,
or the alteration or release in any manner of any security of another Credit Party now or hereafter
held in connection with the Obligations, and consents that the Administrative Agent, the Lenders
and any other Credit Party may deal with each other in connection with such obligations or
otherwise, or alter any contracts now or hereafter existing between them, in any manner whatsoever,
including without limitation the renewal, extension, acceleration or changes in time for payment of
any such obligations or in the terms or conditions of any security held. The Administrative Agent
and the Lenders are hereby expressly given the right, at their option, to proceed in the
enforcement of any of the Obligations independently of any other remedy or security they may at any
time hold in connection with such obligations secured and it shall not be necessary for the
Administrative Agent and the Lenders to proceed upon or against or exhaust any other security or
remedy before proceeding to enforce their rights against such Borrower. Each Borrower further
waives any right of subrogation, reimbursement, exoneration, contribution, indemnification, setoff
or other recourse in respect of sums paid to the Administrative Agent and the Lenders by any other
Credit Party until such time as the Commitment has been terminated and the Secured Obligations have
been repaid in full.




Section 2.14. Establishment of Reserves.



(a) Generally. The Administrative Agent, on behalf of the Lenders, shall have the
right, from time to time, in the good faith exercise of its reasonable credit judgment (consistent
with the asset-based nature of this credit), to establish Reserves in such amounts and with respect
to such matters as the Administrative Agent deems necessary or appropriate, and to increase or
decrease such Reserves. In exercising such reasonable credit judgment, the Administrative Agent
may take into account factors that (i) will or could reasonably be expected to adversely affect the
value of any Collateral, the enforceability or priority of the Liens of the Administrative Agent or
the amount that the Administrative Agent, for the benefit of the Lenders, would be likely to
receive in the liquidation of such Collateral, or (ii) may demonstrate that any collateral report
or financial information concerning the Credit Parties is incomplete, inaccurate or misleading in
any material respect. In exercising such reasonable credit judgment, Reserves may be established
against anticipated obligations, contingencies or conditions affecting the
Companies, including, without limitation, (A) tax liabilities and other obligations owing to
Governmental Authorities, (B) asserted litigation liabilities, (C) anticipated remediation for
compliance with Environmental Laws, and (D) obligations owing to any lessor of real property, any
warehouseman, any processor or any mortgagor on third-party mortgaged sites. Reserves may also be
established with respect to the dilution of accounts receivable, as a result of inventory
appraisals and other results of field examinations.


 


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(b) Reserve Requirements with Respect to Designated Hedge Agreements. With respect to
a Designated Hedge Agreement, the Designated Hedge Creditor for such Designated Hedge Agreement
shall provide to the Administrative Agent, (i) on a monthly basis (within five days after the end
of each calendar month) and as often as the Administrative Agent shall request, a calculation of
the net termination value of such Designated Hedge Agreement, and (ii) all Designated Hedge
Documents related thereto promptly upon request by the Administrative Agent. The Administrative
Agent shall use such calculation to establish Reserves against the Borrowing Base, in its
reasonable discretion; provided that the Administrative Agent shall have no liability to the
Lenders (or any of their affiliates) for establishing or failing to establish a sufficient Reserve.
Schedule 2.14 hereto sets forth the Designated Hedge Agreements existing as of the Closing
Date. The Credit Parties hereby consent to the Designated Hedge Creditors providing any and all
such information to the Administrative Agent.



Section 2.15. Addition of Collateral for Fixed Asset Advance. With respect to any
Equipment or Real Property that shall not be an Eligible Fixed Asset on the Closing Date, the
Borrowers shall have the ability to have such Equipment or Real Property be considered as an
Eligible Fixed Asset during the period from the Term Loan Funding Date through the date that is
sixty (60) days after the Term Loan Funding Date, on the following conditions:




(a) an appraisal report of such Equipment or Real Property is obtained prior to the
date that is sixty (60) days after the Term Loan Funding Date, provided that such appraisal
shall have been completed on behalf of, and accepted by, the Administrative Agent, in its
sole discretion;




(b) if Real Property, all of the conditions set forth in Section 4.3(g) hereof shall
have been met with respect to such Real Property prior to the date that is sixty (60) days
after the Term Loan Funding Date; and




(c) the Borrowers shall have delivered to the Administrative Agent such other
supporting documentation and Security Documents as may be deemed necessary or advisable by
the Administrative Agent;



provided that, notwithstanding anything in this Agreement to the contrary, if any Credit Party
shall sell or otherwise dispose of Eligible Fixed Assets that were part of the calculation of the
Eligible Fixed Asset Amount (for its most recent period of determination), then the Administrative
Agent may, in its sole discretion, permit Borrowers to replace such Eligible Fixed Assets with
Eligible Real Property not previously part of the Eligible Fixed Asset Amount, but only so long as
(i) the addition of such Eligible Real Property does not result in an increase of the
Eligible Fixed Asset Amount as in effect prior to such sale or disposition, and (ii) such Credit
Party shall have delivered to the Administrative Agent all documentation required by the
Administrative Agent with respect to such Eligible Real Property, in form and substance
satisfactory to the Administrative Agent.



Section 2.16. Addition of Borrowing Base Company. Upon the Acquisition by a Credit
Party of a Person that becomes a Domestic Subsidiary following such Acquisition, at the request of
the Administrative Borrower and at the sole discretion of the Administrative Agent, such Domestic
Subsidiary may become a Borrowing Base Company hereunder, provided that, in addition to the
Administrative Agent’s consent, (a) such Domestic Subsidiary shall have complied with all
requirements of Section 5.21 hereof, (b) such Domestic Subsidiary shall have provided to the
Administrative Agent such corporate governance and authorization

 


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documents and an opinion of
counsel and any other documents and items as may be deemed necessary or advisable by the
Administrative Agent, all of the foregoing to be in form and substance satisfactory to the
Administrative Agent, and (c) the Accounts and Inventory of such Domestic Subsidiary shall not be
included in the determination of the Borrowing Base until the assets of such Domestic Subsidiary
shall have been appraised and otherwise evaluated (including by a field examination) in a manner
and by appraisers satisfactory to the Administrative Agent (provided that Accounts and Inventory of
the Target Company shall be included in the determination of the Borrowing Base immediately upon
the consummation of the Target Company Acquisition, but only for a period of sixty (60) days after
the consummation of the Target Company Acquisition (unless a longer period is agreed to by the
Administrative Agent, in its sole discretion) unless appropriate appraisals and field examinations
are conducted).




Section 2.17. Record of Advances; Application of Collections.



(a) Maintenance of Record of Advances. The Administrative Agent, on behalf of the
Lenders, shall maintain records in respect of the Credit Parties that shall reflect (i) the
aggregate outstanding principal amount of Revolving Loans and accrued interest, (ii) the
unreimbursed Letter of Credit drawings, (iii) the aggregate outstanding principal amount of Swing
Loans and accrued interest, and (iv) all other Obligations that shall have become payable hereunder
(the “Advance Record”). Each entry by the Administrative Agent in the Advance Record shall be, to
the extent permitted by applicable law and absent manifest error, prima facie evidence of the data
entered. Such entries by the Administrative Agent shall not be a condition to the Borrowers’
obligation to repay the Obligations.



(b) Charges, Credits and Reports. The Borrowers hereby authorize the Administrative
Agent, on behalf of the Lenders, to charge the Advance Record with all Revolving Loans, Swing Loans
and all other Obligations under this Agreement or any other Loan Document. The Advance Record will
be credited in accordance with the provisions of this Agreement with all payments received by the
Administrative Agent directly from the Borrowers or any other Credit Party or otherwise for the
account of the Borrowers or any other Credit Party pursuant to this Agreement. The Administrative
Agent shall send the Administrative Borrower monthly statements in accordance with the
Administrative Agent’s standard procedures. Any
and all such periodic or other statements or reconciliations of the Advance Record shall be final,
binding and conclusive upon the Borrowers and the other Credit Party in all respects, absent
manifest error, unless the Administrative Agent receives specific written objection thereto from
the Administrative Borrower within thirty (30) Business Days after such statements or
reconciliation shall have been sent to the Administrative Borrower.



(c) Application of Specific Payments. Except for the crediting to the Advance Record
of Collections deposited to one or more Cash Collateral Accounts as provided below, the Borrowers
shall make all other payments to be made by the Borrowers under this Agreement with respect to the
Obligations not later than 2:00 P.M. (Eastern time) on the day when due, without setoff,
counterclaim, defense or deduction of any kind. Payments received after 2:00 P.M. (Eastern time)
shall be deemed to have been received on the next Business Day. Prior to the occurrence of an
Event of Default, the Administrative Borrower may specify to the Administrative Agent the
Obligations to which such payment is to be applied. If the Administrative Borrower does not
specify an application for such payment or if an Event of Default has occurred, the Administrative
Agent shall apply such payment in its discretion.


 


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(d) Crediting of Collections. For the purpose of calculating interest on the
Obligations and determining the aggregate amount of Loans outstanding, the amount of the Revolving
Credit Exposure and the availability for additional Revolving Loans and Letters of Credit, all
Collections deposited into a Cash Collateral Account shall be credited to the account of the
Borrowers (as reflected in the Advance Record) on the next Business Day after the Business Day on
which the Administrative Agent has received notice of the deposit of the proceeds of such
Collections into such Cash Collateral Account (including automated clearinghouse and federal wire
transfers); provided that immediately available funds shall be applied on the same Business Day.
Subject to the rights of the Term Lenders to receive payments when due and of the Revolving Lenders
rights to receive payments of Alternate Currency Loans in the relevant Alternate Currency, and
subject to Section 9.9 hereof, Collections shall be credited as follows: (i) first, to any costs
and expenses due and payable under this Agreement, (ii) second, to any fees due and payable under
this Agreement, (iii) third, to Swing Loans, (iv) fourth, to Base Rate Loans, (v) fifth, to
Eurodollar Loans, (vi) sixth, to Alternate Currency Loans (or, at the discretion of the
Administrative Agent, to cash collateralize Alternate Currency Loans until the applicable Interest
Adjustment Date), (vii) seventh, to the extent that the Letter of Credit Exposure exceeds the
Borrowing Base, to cash collateralize the Letters of Credit as set forth in Section 2.2(b)(ix)
hereof, and (viii) eighth, any remainder thereof to be deposited into the Operating Account. If
Collections made on a date other than a Settlement Date are in excess of the aggregate amount of
Swing Loans outstanding, then such Collections may, in the discretion of the Administrative Agent
depending on the amount of such payment, be credited towards the Swing Line Lender’s pro rata share
of Revolving Loans outstanding until such payments can be reallocated among the Revolving Lenders
on the next Settlement Date. Notwithstanding anything in this Section 2.17 to the contrary, any
amount held by the Administrative Agent to cash collateralize Alternate Currency Loans pursuant to
subpart (vi) above shall be held in the Cash Collateral Accounts until repayment of such Alternate
Currency Loans at the applicable Interest Adjustment Dates. From time to time, upon advance
written notice to the Administrative Borrower, the Administrative Agent may adopt such additional
or modified regulations and procedures as the Administrative Agent may deem reasonable and
appropriate with respect to the operation of the Cash Collateral Accounts and not substantially
inconsistent with the terms of this Agreement.



(e) Application of Deposits in Cash Collateral Accounts. Deposits of Collections to
the Cash Collateral Accounts shall be credited to the Advance Record of the Borrowers on a daily
basis in accordance with subsection (d) above, and thereby reduce the Swing Line Exposure or the
Revolving Credit Exposure (other than in respect of the undrawn amount of any Letter of Credit
outstanding) as the Administrative Agent may choose, in its sole discretion; provided that, prior
to the occurrence of an Event of Default, the Administrative Agent will use reasonable efforts to
avoid applications of payments that would cause prepayment of a Eurodollar Loan or Alternate
Currency Loan prior to the expiration of the applicable Interest Period. Upon payment in full of
the Secured Obligations and the termination of the Commitment, deposits of Collections to the Cash
Collateral Accounts shall be credited by the Administrative Agent as directed by the Administrative
Borrower.


 


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Section 2.18. Protective Advances. The Administrative Agent may, in its reasonable
discretion, make Protective Advances without the consent of the Lenders, so long as (a) after
giving effect to such Protective Advances, the aggregate amount of outstanding Protective Advances
shall not exceed five percent (5%) of the Total Commitment Amount, and (b) the making of such
Protective Advances shall not cause the sum of (i) the Revolving Credit Exposure, (ii) the Term
Loan Exposure, and (iii) the aggregate amount of outstanding Protective Advances, to be in excess
of the Total Commitment Amount. A Protective Advance is for the account of the Borrowers and shall
constitute Obligations. Any such Protective Advances incurred after the occurrence and during the
continuance of an Event of Default shall be deemed to have been made in connection with the
exercise of remedies by the Administrative Agent and shall have the priority set forth in Section
9.9 hereof as expenses of the Administrative Agent incurred in connection with the exercise of
remedies under this Agreement or the other Loan Documents. To the extent the Administrative Agent
makes Protective Advances, the Borrowers hereby agree to promptly reimburse the Administrative
Agent, on demand, for all such Protective Advances. The advance of any such Protective Advances on
any one occasion shall not obligate the Administrative Agent to advance any Protective Advances on
any other occasion and nothing in this Section 2.18 shall be construed as excusing any Company from
the performance of any covenant or other agreement of such Company with respect to any of the
foregoing matters as set forth in this Agreement or in any of the other Loan Documents. The
Revolving Lenders shall reimburse the Administrative Agent for any Protective Advances to the
extent that the Administrative Agent does not receive reimbursement pursuant to any other provision
of this Agreement, and, at the sole option of the Administrative Agent, the Administrative Agent
may reimburse itself for Protective Advances through the making of a Swing Loan or by requesting
that the Revolving Lenders fund a Revolving Loan, subject to no conditions precedent whatsoever
(but, for clarification, subject to the first sentence hereof) other than notice to the Revolving
Lenders in accordance with Section 2.6(a) hereof. The Required Lenders may at any time revoke the
Administrative Agent’s authorization to make Protective Advances by delivering written notice of
such revocation to the Administrative Agent.



ARTICLE III. ADDITIONAL PROVISIONS RELATING TO

LIBOR FIXED RATE LOANS; INCREASED CAPITAL; TAXES





Section 3.1. Requirements of Law.



(a) If, after the Closing Date, (i) the adoption of or any change in any Requirement of Law or
in the interpretation or application thereof by a Governmental Authority, or (ii) the 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:




(A) shall subject any Lender to any tax of any kind whatsoever with respect to this
Agreement, any Letter of Credit or any LIBOR Fixed Rate Loan made by it, or change the basis
of taxation of payments to such Lender in respect thereof (except for Taxes and Excluded
Taxes which are governed by Section 3.2 hereof);


 


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(B) 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 that is not otherwise included in the determination
of the Eurodollar Rate or the Alternate Currency Rate; or




(C) 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, converting
into, continuing or maintaining LIBOR Fixed Rate Loans or issuing or participating in Letters of
Credit, or to reduce any amount receivable hereunder in respect thereof, then, in any such case,
the Borrowers shall pay to such Lender, promptly after receipt of a written request therefor, any
additional amounts necessary to compensate such Lender for such increased cost or reduced amount
receivable. If any Lender becomes entitled to claim any additional amounts pursuant to this
subsection (a), such Lender shall promptly notify the Administrative Borrower (with a copy to the
Administrative Agent) of the event by reason of which it has become so entitled.



(b) If any Lender shall have determined that, after the Closing Date, the adoption of or any
change in any Requirement of Law regarding capital adequacy or in the interpretation or application
thereof by a Governmental Authority or compliance by such Lender or any corporation controlling
such Lender with any request or directive regarding capital adequacy (whether or not having the
force of law) from any Governmental Authority 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, or
under or in respect of any Letter of Credit, to a level below that which such Lender or such
corporation could have achieved but for such adoption, change or compliance (taking into
consideration the policies of such Lender or such corporation with respect to capital adequacy),
then from time to time, upon submission by such Lender to the Administrative Borrower (with a copy
to the Administrative Agent) of a written request therefor
(which shall include the method for calculating such amount), the Borrowers shall promptly pay or
cause to be paid to such Lender such additional amount or amounts as will compensate such Lender or
such corporation for such reduction.



(c) For purposes of this Section 3.1, the Dodd-Frank Act, any requests, rules, guidelines or
directives concerning capital adequacy promulgated by the Bank for International Settlements, or
the Basel Committee on Banking Regulations and Supervisory Practices (or any successor or similar
authority) under Basel III, and any rules, regulations, orders, requests, guidelines and directives
adopted, promulgated or implemented in connection with any of the foregoing, regardless of the date
adopted, issued, promulgated or implemented, are deemed to have been introduced and adopted after
the Closing Date.



(d) A certificate as to any additional amounts payable pursuant to this Section 3.1 submitted
by any Lender to the Administrative Borrower (with a copy to the Administrative Agent) shall be
conclusive absent manifest error. In determining any such additional amounts, such Lender may use
any method of averaging and attribution that it (in its sole discretion) shall deem applicable.
The obligations of the Borrowers pursuant to this Section 3.1 shall survive the termination of this
Agreement and the payment of the Loans and all other amounts payable hereunder.


 


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Section 3.2. Taxes.



(a) All payments made by any Credit Party under any Loan Document shall be made free and clear
of, and without deduction or withholding for or on account of any Taxes or Other Taxes. If any
Taxes or Other Taxes are required to be deducted or withheld from any amounts payable to the
Administrative Agent or any Lender hereunder, the amounts so payable to the Administrative Agent or
such Lender shall be increased to the extent necessary to yield to the Administrative Agent or such
Lender (after deducting, withholding and payment of all Taxes and Other Taxes) interest or any such
other amounts payable hereunder at the rates or in the amounts specified in the Loan Documents.



(b) Whenever any Taxes or Other Taxes are required to be withheld and paid by a Credit Party,
such Credit Party shall timely withhold and pay such taxes to the relevant Governmental
Authorities. As promptly as possible thereafter, the Borrowers shall send to the Administrative
Agent for its own account or for the account of the relevant Lender, as the case may be, a
certified copy of an original official receipt received by such Credit Party showing payment
thereof or other evidence of payment reasonably acceptable to the Administrative Agent or such
Lender. If such Credit Party shall fail to pay any Taxes or Other Taxes when due to the
appropriate Governmental Authority or fails to remit to the Administrative Agent the required
receipts or other required documentary evidence, such Credit Party and the Borrowers shall
indemnify the Administrative Agent and the appropriate Lenders on demand for any incremental Taxes
or Other Taxes paid or payable by the Administrative Agent or such Lender as a result of any such
failure.



(c) Each Lender that is not (i) a citizen or resident of the United States of America, (ii) a
corporation, partnership or other entity created or organized in or under the laws of the
United States of America (or any jurisdiction thereof), or (iii) an estate or trust that is subject
to federal income taxation regardless of the source of its income (any such Person, a “Non-U.S.
Lender”) shall deliver to the Administrative Borrower and the Administrative Agent two copies of
either U.S. Internal Revenue Service Form W-8BEN, Form W-8IMY or Form W-8ECI, or, in the case of a
Non-U.S. Lender claiming exemption from U.S. federal withholding tax under Section 871(h) or 881(c)
of the Code with respect to payments of “portfolio interest”, a statement with respect to such
interest and two copies of a Form W-8BEN, or any subsequent versions thereof or successors thereto,
properly completed and duly executed by such Non-U.S. Lender claiming complete exemption from, or a
reduced rate of, U.S. federal withholding tax on all payments by Credit Parties under this
Agreement and the other Loan Documents. Such forms shall be delivered by each Non-U.S. Lender on
or before the date it becomes a party to this Agreement or such other Loan Document. In addition,
each Non-U.S. Lender shall deliver such forms or appropriate replacements promptly upon the
obsolescence or invalidity of any form previously delivered by such Non-U.S. Lender. Each Non-U.S.
Lender shall promptly notify the Administrative Borrower at any time it determines that such Lender
is no longer in a position to provide any previously delivered certificate to the Administrative
Borrower (or any other form of certification adopted by the U.S. taxing authorities for such
purpose). Notwithstanding any other provision of this subsection (c), a Non-U.S. Lender shall not
be required to deliver any form pursuant to this subsection (c) that such Non-U.S. Lender is not
legally able to deliver.


 


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(d) The agreements in this Section 3.2 shall survive the termination of the Loan Documents and
the payment of the Loans and all other amounts payable hereunder.



Section 3.3. Funding Losses. The Borrowers agree to indemnify each Lender, promptly
after receipt of a written request therefor, and to hold each Lender harmless from, any loss or
expense that such Lender may sustain or incur as a consequence of (a) default by a Borrower in
making a borrowing of, conversion into or continuation of LIBOR Fixed Rate Loans after such
Borrower has given a notice (including a written or verbal notice that is subsequently revoked)
requesting the same in accordance with the provisions of this Agreement, (b) default by a Borrower
in making any prepayment of or conversion from LIBOR Fixed Rate Loans after such Borrower has given
a notice (including a written or verbal notice that is subsequently revoked) thereof in accordance
with the provisions of this Agreement, (c) the making of a prepayment of a LIBOR Fixed Rate Loan on
a day that is not the last day of an Interest Period applicable thereto, (d) any conversion of a
Eurodollar Loan to a Base Rate Loan on a day that is not the last day of an Interest Period
applicable thereto, or (e) any compulsory assignment of such Lender’s interests, rights and
obligations under this Agreement pursuant to Section 12.3(c) or 12.12 hereof. Such indemnification
shall be in an amount equal to the excess, if any, of (i) the amount of interest that would have
accrued on the amounts so prepaid, or not so borrowed, converted or continued, for the period from
the date of such prepayment or of such failure to borrow, convert or continue to the last day of
such Interest Period (or, in the case of a failure to borrow, convert or continue, the Interest
Period that would have commenced on the date of such failure) in each case at the applicable rate
of interest for such Loans provided for herein over (ii) the amount of interest (as reasonably
determined by such Lender) that would have accrued to such Lender on such amount by placing such
amount on deposit for a comparable period with leading banks in the appropriate London interbank
market, along with any administration fee charged by such Lender. A certificate as to any
amounts payable pursuant to this Section 3.3 submitted to the Administrative Borrower (with a copy
to the Administrative Agent) by any Lender shall be conclusive absent manifest error. The
obligations of the Borrowers pursuant to this Section 3.3 shall survive the termination of this
Agreement and the payment of the Loans and all other amounts payable hereunder.



Section 3.4. Change of Lending Office. Each Lender agrees that, upon the occurrence
of any event giving rise to the operation of Section 3.1 or 3.2(a) hereof with respect to such
Lender, it will, if requested by the Administrative Borrower, use reasonable efforts (subject to
overall policy considerations of such Lender) to designate another lending office (or an affiliate
of such Lender, if practical for such Lender) for any Loans affected by such event with the object
of avoiding the consequences of such event; provided, that such designation is made on terms that,
in the sole judgment of such Lender, cause such Lender and its lending office(s) to suffer no
economic, legal or regulatory disadvantage; and provided, further, that nothing in this Section 3.4
shall affect or postpone any of the obligations of any Borrower or the rights of any Lender
pursuant to Section 3.1 or 3.2(a) hereof.


 


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Section 3.5. Eurodollar Rate or Alternate Currency Rate Lending Unlawful; Inability to
Determine Rate.



(a) If any Lender shall determine (which determination shall, upon notice thereof to the
Administrative Borrower and the Administrative Agent, be conclusive and binding on the Borrowers)
that, after the Closing Date, (i) the introduction of or any change in or in the interpretation of
any law makes it unlawful, or (ii) any Governmental Authority asserts that it is unlawful, for such
Lender to make or continue any Loan as, or to convert (if permitted pursuant to this Agreement) any
Loan into, a LIBOR Fixed Rate Loan, the obligations of such Lender to make, continue or convert any
such LIBOR Fixed Rate Loan shall, upon such determination, be suspended until such Lender shall
notify the Administrative Agent that the circumstances causing such suspension no longer exist, and
all outstanding LIBOR Fixed Rate Loans payable to such Lender shall automatically convert (if
conversion is permitted under this Agreement) into a Base Rate Loan, or be repaid (if no conversion
is permitted) at the end of the then current Interest Periods with respect thereto or sooner, if
required by law or such assertion.



(b) If the Administrative Agent or the Required Lenders determine that for any reason adequate
and reasonable means do not exist for determining the Eurodollar Rate or Alternate Currency Rate
for any requested Interest Period with respect to a proposed LIBOR Fixed Rate Loan, or that the
Eurodollar Rate or Alternate Currency Rate for any requested Interest Period with respect to a
proposed LIBOR Fixed Rate Loan does not adequately and fairly reflect the cost to the Lenders of
funding such Loan, the Administrative Agent will promptly so notify the Administrative Borrower and
each Lender. Thereafter, the obligation of the Lenders to make or maintain such LIBOR Fixed Rate
Loan shall be suspended until the Administrative Agent (upon the instruction of the Required
Lenders) revokes such notice. Upon receipt of such notice, the Administrative Borrower may revoke
any pending request for a borrowing of, conversion to or continuation of such LIBOR Fixed Rate Loan
or, failing that, will be deemed to have converted such request into a request for a borrowing of a
Base Rate Loan in the amount specified therein.



Section 3.6. Replacement of Lenders. The Administrative Borrower shall be permitted
to replace any Lender that requests reimbursement for amounts owing pursuant to Section 3.1 or
3.2(a) hereof, or asserts its inability to make a LIBOR Fixed Rate Loan pursuant to Section 3.5
hereof; provided that (a) such replacement does not conflict with any Requirement of Law, (b) no
Default or Event of Default shall have occurred and be continuing at the time of such replacement,
(c) prior to any such replacement, such Lender shall have taken no action under Section 3.4 hereof
so as to eliminate the continued need for payment of amounts owing pursuant to Section 3.1 or
3.2(a) hereof or, if it has taken any action, such request has still been made, (d) the replacement
financial institution shall purchase, at par, all Loans and other amounts owing to such replaced
Lender on or prior to the date of replacement and assume all commitments and obligations of such
replaced Lender, (e) the Borrowers shall be liable to such replaced Lender under Section 3.3 hereof
if any LIBOR Fixed Rate Loan owing to such replaced Lender shall be purchased other than on the
last day of the Interest Period relating thereto, (f) the replacement Lender, if not already a
Lender, shall be satisfactory to the Administrative Agent, (g) the replaced Lender shall be
obligated to make such replacement in accordance with the provisions of Section 12.10 hereof
(provided that the Borrowers (or the succeeding Lender, if such Lender is willing) shall be
obligated to pay the assignment fee referred to therein), and (h) until such time as such
replacement shall be consummated, the Borrowers shall pay all additional amounts (if any) required
pursuant to Section 3.1 or 3.2(a) hereof, as the case may be.


 


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Section 3.7. Discretion of Lenders as to Manner of Funding. Notwithstanding any
provision of this Agreement to the contrary, each Lender shall be entitled to fund and maintain its
funding of all or any part of such Lender’s Loans in any manner such Lender deems to be
appropriate; it being understood, however, that for the purposes of this Agreement all
determinations hereunder shall be made as if such Lender had actually funded and maintained each
Eurodollar Loan or Alternate Currency Loan during the applicable Interest Period for such Loan
through the purchase of deposits having a maturity corresponding to such Interest Period and
bearing an interest rate equal to the Eurodollar Rate or Alternate Currency Rate, as applicable,
for such Interest Period.



ARTICLE IV. CONDITIONS PRECEDENT




Section 4.1. Conditions to Each Credit Event. The obligation of the Lenders, the
Fronting Lenders and the Swing Line Lender to participate in any Credit Event shall be conditioned,
in the case of each Credit Event, upon the following:



(a) all conditions precedent as listed in Sections 4.2 and 4.3 hereof shall have been
satisfied prior to or as of the first Credit Event occurring on or after the Closing Date;



(b) the Administrative Borrower or any other Borrower shall have submitted a Notice of Loan
(or with respect to a Letter of Credit, complied with the provisions of Section 2.2(b)(ii) hereof)
and otherwise complied with Section 2.6 hereof;



(c) no Default or Event of Default shall then exist or immediately after such Credit Event
would exist; and



(d) each of the representations and warranties contained in Article VI hereof shall be true in
all material respects as if made on and as of the date of such Credit Event, except to the extent
that any thereof expressly relate to an earlier date.



Each request by the Administrative Borrower or any other Borrower for a Credit Event shall be
deemed to be a representation and warranty by the Borrowers as of the date of such request as to
the satisfaction of the conditions precedent specified in subsections (c) and (d) above.



Section 4.2. Certain Closing Deliveries Under the Prior Credit Agreements. The
following deliveries have been made by the Borrowers prior to the Closing Date in connection with
the Prior Credit Agreements:



(a) Intellectual Property Security Agreements. Each Credit Party that owned federally
registered intellectual property as of the Prior Closing Date executed and delivered to the
Administrative Agent, for the benefit of the Lenders, an Intellectual Property Security Agreement.


 


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(b) Real Estate Matters. With respect to each parcel of Real Property that was
Eligible Real Property prior to the Closing Date, the Borrowers delivered to the Administrative
Agent:




(i) a Loan Policy of title insurance issued to the Administrative Agent, for the
benefit of the Lenders, by a title company (the “Title Company”), in an amount equal to the
lesser of the Total Commitment Amount or the appraised value of the Real Property insuring
the Mortgage to be a valid, first-priority lien in the Real Property, free and clear of all
defects and encumbrances except such matters of record shown as Permitted Encumbrances in
“Exhibit B” to the Mortgage, with such endorsements and affirmative insurance as the
Administrative Agent required, including without limitation:




(A) the deletion of all so-called “standard exceptions” from such policy;




(B) a so-called “comprehensive” endorsement in form and substance acceptable to
the Administrative Agent;




(C) affirmative insurance coverage regarding access, compliance with respect to
restrictive covenants and other matters; and




(D) the results of a federal tax lien search in the county wherein the Real
Property is located and such Credit Party has its principal place of business;




(ii) a current “as-built” survey of such Real Property (other than with respect to the
Real Property located in Fife, Washington and in Stockton, California) prepared by a
licensed surveyor, certified to the Administrative Agent, for the benefit of the Lenders,
and the Title Company pursuant to a certificate of survey. Such survey was made in
accordance with the “Minimum Standard Detail Requirements for Land Title Surveys” adopted by
the American Land Title Association in 2005, and shall show, without limitation:




(A) the location of the perimeter of such Real Property by courses and
distances with all reference points shown or referred to in the aforesaid title
policy;




(B) all easements (including those easements whose existence is disclosed by
physical inspection of such Real Property), rights-of-way and the location of all
utility lines servicing the improvements on such Real Property;




(C) the established building lines;




(D) the full legal description of the real estate (conforming to the legal
description set forth in the aforesaid title policy) and a certification as to the
acreage and square footage thereof;


 


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(E) the highway and street right-of-way lines abutting such Real Property and
the width thereof; and




(F) encroachments upon such Real Property and the extent thereof in feet and
inches;




(iii) a copy of the certificate of occupancy for each building located on such Real
Property;




(iv) evidence of compliance with all building and zoning codes applicable to such Real
Property (or a proper title endorsement covering such compliance);




(v) evidence of the availability of utilities for the buildings located on such Real
Property;




(vi) evidence that no portion of such Real Property is located in a Special Flood
Hazard Area or is otherwise classified as Class A or Class BX on the Flood Maps maintained
by the Federal Emergency Management Agency;




(vii) the results of a Phase I Environmental Report for each parcel of Real Property;




(viii) the results of an appraisal of such Real Property; and




(ix) a fully executed original of each Mortgage with respect to such Real Property.



(c) Landlords’ Waivers and Mortgagees’ Waivers. The Borrowers delivered a Landlord’s
Waiver for each location of a Borrower or Guarantor of Payment, where any of the collateral
securing any part of the Obligations was located, as of the Prior Closing Date, unless such
location was owned by the Credit Party that owned the collateral located there.



(d) Bailees’ Waivers. The Borrowers delivered a Bailee’s Waiver for each location
where a Borrower or Guarantor of Payment maintained any Inventory with a bailee, as of the Prior
Closing Date.



(e) Processors’ Waivers. The Borrowers delivered a Processor’s Waiver for each
location where a Borrower or Guarantor of Payment maintained any Inventory with a processor, as of
the Prior Closing Date.



(f) Subordinated Indenture. The Administrative Borrower provided to the
Administrative Agent a copy of the Subordinated Indenture, together with any amendments or
supplements thereto, certified by an officer of the Administrative Borrower as being true and
complete as of the Prior Closing Date.


 


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Section 4.3. Conditions to the First Credit Event. The Borrowers shall cause the
following conditions to be satisfied on or prior to the Closing Date. The obligation of the
Lenders, the Fronting Lenders and the Swing Line Lender to participate in the first Credit Event is
subject to the Borrowers satisfying each of the following conditions prior to or concurrently with
such Credit Event:



(a) Notes as Requested. The Borrowers shall have executed and delivered to (i) each
Revolving Lender requesting a Revolving Credit Note such Revolving Lender’s Revolving Credit Note,
(ii) each Term Lender requesting a Term Note such Term Lender’s Term Note, and (iii) the Swing Line
Lender the Swing Line Note, if requested by the Swing Line Lender.



(b) Guaranties of Payment. Each Guarantor of Payment shall have executed and
delivered to the Administrative Agent, for the benefit of the Lenders, a Guaranty of Payment, in
form and substance satisfactory to the Administrative Agent and the Lenders.



(c) Pledge and Security Agreement. Each Credit Party shall have executed and
delivered to the Administrative Agent, for the benefit of the Lenders, the Pledge and Security
Agreement, and such other documents or instruments, as may be required by the Administrative Agent
to create or perfect the Liens of the Administrative Agent, for the benefit of the Lenders, in the
assets of such Credit Party, all to be in form and substance satisfactory to the Administrative
Agent.



(d) Pledged Securities. The Credit Parties shall have (i) executed and delivered to
the Administrative Agent (or its designated agent), for the benefit of the Lenders, appropriate
transfer powers for each of the Pledged Securities that are certificated, (ii) delivered to the
Administrative Agent (or its designated agent), for the benefit of the Lenders, the Pledged
Securities (to the extent such Pledged Securities are certificated), and (iii) delivered to the
Administrative Agent any other documentation reasonably required by the Administrative Agent
regarding the perfection of the security interest of the Administrative Agent, for the benefit of
the Lenders, in such Pledged Securities.




(e) Intellectual Property Security Agreements.




(i) Each Credit Party that delivered to the Administrative Agent an Intellectual
Property Security Agreement in connection with the Prior Credit Agreements shall have
executed and delivered to the Administrative Agent an Intellectual Property Security
Amendment, in form and substance reasonably satisfactory to the Administrative Agent.




(ii) Each Credit Party (other than a Credit Party required to deliver an Intellectual
Property Security Amendment pursuant to subpart (i) above) that owns federally registered
intellectual property shall have executed and delivered to the Administrative Agent, for the
benefit of the Lenders, an Intellectual Property Security Agreement, in form and substance
reasonably satisfactory to the Administrative Agent.


 


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(f) Control Agreements. The Borrowers shall have delivered to the Administrative
Agent an executed Control Agreement, in form and substance reasonably satisfactory to the
Administrative Agent, for each Deposit Account and each Securities Account maintained by a Credit
Party (other than for (i) an Immaterial Deposit Account, and (ii) a Deposit Account referenced in
Section 5.21 hereof in the name of The D.S. Brown Company, D.S.B. Holding Corp., or Pacific Award
Metals, Inc.). All Deposit Accounts (other than Immaterial Deposit Accounts) of the Credit Parties
shall be maintained with the Administrative Agent.




(g) Real Estate Matters.




(i) With respect to each parcel of the Real Property owned by a Credit Party and part
of the Eligible Fixed Asset Amount, and for which all deliveries required pursuant to
Section 4.2(b) hereof have been made to the Administrative Agent, Borrowers shall have
delivered to the Administrative Agent:




(A) evidence to the Administrative Agent’s satisfaction in its sole discretion
that no portion of such Real Property is located in a Special Flood Hazard Area or
is otherwise classified as Class A or Class BX on the Flood Maps maintained by the
Federal Management Agency;




(B) the results of an appraisal of such Real Property, in form and substance
satisfactory to the Administrative Agent; and




(C) an executed Mortgage Amendment with respect to such Real Property.




(ii) With respect to each parcel of the Real Property owned by a Credit Party and part
of the Eligible Fixed Asset Amount, and for which all deliveries required pursuant to
Section 4.2(b) hereof have not been made to the Administrative Agent, Borrowers shall have
delivered to the Administrative Agent:




(A) a Loan Policy of title insurance reasonably acceptable to the
Administrative Agent issued to the Administrative Agent, for the benefit of the
Lenders, by a title company acceptable to the Administrative Agent (the “Title
Company”), in an amount equal to the lesser of the Total Commitment Amount or the
appraised value of the Real Property insuring the Mortgage to be a valid,
first-priority lien in the Real Property, free and clear of all defects and
encumbrances except such matters of record as accepted by the Administrative Agent,
in its sole discretion, and shown as Permitted Encumbrances in “Exhibit B” to the
Mortgage, with such endorsements and affirmative insurance as the Administrative
Agent may require, including without limitation:




(1) the deletion of all so-called “standard exceptions” from such
policy;


 


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(2) a so-called “comprehensive” endorsement in form and substance
acceptable to the Administrative Agent;




(3) affirmative insurance coverage regarding access, compliance with
respect to restrictive covenants and any other matters to which the
Administrative Agent may have objection or require affirmative insurance
coverage; and




(4) the results of a federal tax lien search in the county wherein the
Real Property is located and such Credit Party has its principal place of
business;




(B) a current “as-built” survey of such Real Property (other than with respect
to the Real Property located in Orrick, Missouri; Clinton, Iowa; Fife, Washington
and Stockton, California) prepared by a licensed surveyor acceptable to the
Administrative Agent, certified to the Administrative Agent, for the benefit of the
Lenders, and the Title Company pursuant to a certificate of survey acceptable to the
Administrative Agent. Such survey shall be in form and substance acceptable to the
Administrative Agent, in its sole discretion, shall be made in accordance with the
“Minimum Standard Detail Requirements for Land Title Surveys” adopted by the
American Land Title Association in 2005, and shall show, without limitation:




(1) the location of the perimeter of such Real Property by courses and
distances with all reference points shown or referred to in the aforesaid
title policy;




(2) all easements (including those easements whose existence is
disclosed by physical inspection of such Real Property), rights-of-way and
the location of all utility lines servicing the improvements on such Real
Property;




(3) the established building lines;




(4) the full legal description of the real estate (conforming to the
legal description set forth in the aforesaid title policy) and a
certification as to the acreage and square footage thereof;




(5) the highway and street right-of-way lines abutting such Real
Property and the width thereof; and




(6) encroachments upon such Real Property and the extent thereof in
feet and inches;




(C) a copy of the certificate of occupancy for each building located on such
Real Property;


 


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(D) evidence to the Administrative Agent’s satisfaction in its sole discretion
that no portion of such Real Property is located in a Special Flood Hazard Area or
is otherwise classified as Class A or Class BX on the Flood Maps maintained by the
Federal Emergency Management Agency;




(E) the results of an appraisal of such Real Property, in form and substance
satisfactory to the Administrative Agent; and




(F) a fully executed original of each Mortgage with respect to such Real
Property.



(h) Landlords’ Waivers and Mortgagees’ Waivers. The Borrowers shall have delivered a
Landlord’s Waiver and a mortgagee’s waiver, if applicable, each in form and substance satisfactory
to the Administrative Agent, for each location of a Borrower or Guarantor of Payment, as set forth
in Schedule 6.9 hereto, where any of the collateral securing any part of the Obligations is
located, unless such location is owned by the Borrower or Guarantor of Payment that owns the
collateral located there.



(i) Processors’ Waivers. The Borrowers shall have delivered a Processor’s Waiver for
each location, as set forth in Schedule 6.9 hereto, where a Borrower or Guarantor of
Payment maintains any Inventory with a processor, together with filed U.C.C. Financing Statements,
in form and substance satisfactory to the Administrative Agent.



(j) Subordinated Indenture. With respect to the Subordinated Indenture, the
Administrative Borrower shall have provided to the Administrative Agent (i) a copy of any
amendments or supplements to the Subordinated Indenture dated after the Prior Closing Date,
certified by an officer of the Administrative Borrower as being true and complete; and (ii) an
officer’s certificate, signed by a Financial Officer, and otherwise in form and substance
satisfactory to the Administrative Agent and the Lenders, certifying (A) that no “Default” or
“Event of Default” (as each term is defined in the Subordinated Indenture) exists under the
Indenture, nor will exist after the making of the first Credit Event hereunder, (B) that all of the
Obligations constitute “Senior Indebtedness”, “Guarantor Senior Indebtedness”, “Designated Senior
Indebtedness” and “Guarantor Designated Senior Indebtedness” (as each term is defined in the
Subordinated Indenture), and (C) as to such other matters with respect to the Subordinated
Indenture as the Administrative Agent shall deem necessary or appropriate.



(k) Delivery of Pledged Notes. With respect to any Pledged Notes, each Credit Party,
as appropriate, has executed an appropriate endorsement on (or separate from) each such Pledged
Note and has deposited such Pledged Note with the Administrative Agent.



(l) Lien Searches. With respect to the property owned or leased by each Credit Party,
the Borrowers shall have caused to be delivered to the Administrative Agent (i) the results of
Uniform Commercial Code lien searches, satisfactory to the Administrative Agent, (ii) the results
of federal and state tax lien and judicial lien searches, satisfactory to the Administrative Agent,
and (iii) Uniform Commercial Code termination statements reflecting termination of all U.C.C.
Financing Statements previously filed by any Person and not expressly permitted pursuant to Section
5.9 hereof.


 


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(m) Officer’s Certificate, Resolutions, Organizational Documents. The Borrowers shall
have delivered to the Administrative Agent an officer’s certificate (or comparable domestic or
foreign documents) certifying the names of the officers of each Credit Party authorized to sign the
Loan Documents, together with the true signatures of such officers and certified copies of (i) the
resolutions of the board of directors (or comparable domestic or foreign documents) of such Credit
Party evidencing approval of the execution and delivery of the Loan Documents and the execution of
other Related Writings to which such Credit Party is a party, and (ii) the Organizational Documents
of such Credit Party.



(n) Good Standing and Full Force and Effect Certificates. The Borrowers shall have
delivered to the Administrative Agent a good standing certificate or full force and effect
certificate (or comparable document, if neither certificate is available in the applicable
jurisdiction), as the case may be, for each Credit Party, issued on or about the Closing Date by
the Secretary of State in the state or states where such Credit Party is incorporated or formed or
qualified as a foreign entity.



(o) Legal Opinion. The Borrowers shall have delivered to the Administrative Agent an
opinion of counsel for each Credit Party, in form and substance satisfactory to the Administrative
Agent.



(p) Insurance Policies. The Borrowers shall have delivered to the Administrative
Agent certificates of insurance on ACORD 25 and 27 or 28 form and proof of endorsements
satisfactory to the Administrative Agent and the Lenders, providing for adequate real property,
personal property and liability insurance for each Credit Party, with the Administrative Agent, on
behalf of the Lenders, listed as mortgagee, lender’s loss payee and additional insured, as
appropriate.



(q) Cash Management Systems. The Credit Parties shall have established (i) the cash
management system, specified in Section 7.1 hereof, and executed the Master Agreement, in form and
substance satisfactory to the Administrative Agent, and (ii) a Cash Collateral Account, a
Concentration Account, an Operating Account, Controlled Disbursement Accounts and Lockbox
arrangements, in each case satisfactory to the Administrative Agent.



(r) Customer List. Borrowers shall have delivered to the Administrative Agent a
complete list of all Account Debtors of each Credit Party, including but not limited to the name,
address and contact information of each Account Debtor, in form and detail satisfactory to the
Administrative Agent.



(s) Financial Reports. The Borrowers shall have delivered to the Administrative Agent
(i) internally prepared financial statements of Gibraltar for the fiscal period ended June 30,
2011, (ii) audited financial statements of Gibraltar for the fiscal year ended December 31, 2010
prepared on a Consolidated and consolidating (in accordance with GAAP) basis, in form and substance
satisfactory to the Administrative Agent, and (iii) all management letters and reports prepared by
independent public accountants for the fiscal year ended December 31, 2010.


 


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(t) Pro-Forma Projections. The Borrowers shall have delivered to the Administrative
Agent annual pro-forma projections of financial statements (which report shall include balance
sheets and statements of income (loss) and cash-flow) of Gibraltar for the fiscal years ending
December 31, 2011 and December 31, 2012, prepared on a Consolidated and consolidating (in
accordance with GAAP) basis, in form and substance satisfactory to the Administrative Agent.



(u) Collateral Audit, Inventory and Equipment Appraisals. The Administrative Agent
shall have received the results of a collateral field audit and an appraisal of the Credit Parties’
Inventory, Equipment and machinery, each to be in form and substance satisfactory to the
Administrative Agent.



(v) Closing Available Liquidity. On the Closing Date, the Closing Available Liquidity
shall be no less than Thirty-Five Million Dollars ($35,000,000). In connection therewith, the
Borrowers shall have delivered to the Administrative Agent a calculation of the Closing Available
Liquidity, certified by a Financial Officer.



(w) Advertising Permission Letter. The Borrowers shall have delivered to the
Administrative Agent an advertising permission letter, authorizing the Administrative Agent to
publicize the transaction and specifically to use the names of the Borrowers in connection with
“tombstone” advertisements in one or more publications selected by the Administrative Agent.



(x) Special Accounts and Borrowing Base Certificate Letter. The Borrowers shall have
executed and delivered to the Administrative Agent the Special Accounts and Borrowing Base
Certificate Letter.



(y) Administrative Agent Fee Letter, Closing Fee Letter and Other Fees. The Borrowers
shall have (i) executed and delivered to the Administrative Agent, the Administrative Agent Fee
Letter and paid to the Administrative Agent, for its sole account, the fees stated therein, (ii)
executed and delivered to the Administrative Agent, the Closing Fee Letter and paid to the
Administrative Agent, for the benefit of the Lenders, the fees stated therein, and (iii) paid all
legal fees and expenses of the Administrative Agent in connection with the preparation and
negotiation of the Loan Documents.



(z) Closing Certificate. The Borrowers shall have delivered to the Administrative
Agent and the Lenders an officer’s certificate certifying that, as of the Closing Date, (i) all
conditions precedent set forth in this Article IV have been satisfied, (ii) no Default or Event of
Default exists nor immediately after the first Credit Event will exist, and (iii) each of the
representations and warranties contained in Article VI hereof are true and correct as of the
Closing Date.



(aa) Letter of Direction. The Borrowers shall have delivered to the Administrative
Agent a letter of direction authorizing the Administrative Agent, on behalf of the Lenders, to
disburse the proceeds of the Loans, which letter of direction includes the authorization to
transfer funds under this Agreement and the wire instructions that set forth the locations to which
such funds shall be sent.


 


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(bb) No Material Adverse Change. No material adverse change, in the opinion of the
Administrative Agent, shall have occurred in the financial condition, operations or prospects of
(i) the Companies, or (ii) the Target Company, since June 30, 2011.



(cc) Miscellaneous. The Borrowers shall have provided to the Administrative Agent and
the Lenders such other items and shall have satisfied such other conditions as may be reasonably
required by the Administrative Agent or the Lenders.




Section 4.4. Post-Closing Conditions.



(a) Missouri and Iowa Real Property Survey. No later than ten days after the Closing
Date, unless a longer period is agreed to by the Administrative Agent in writing, with respect to
the Real Property located in Orrick, Missouri and Clinton, Iowa, the Borrowers shall have delivered
to the Administrative Agent a current “as-built” survey of such Real Property prepared by a
licensed surveyor acceptable to the Administrative Agent, certified to the Administrative Agent,
for the benefit of the Lenders, and the Title Company pursuant to a certificate of survey
acceptable to the Administrative Agent. Such survey shall be in form and substance acceptable to
the Administrative Agent, in its sole discretion, shall be made in accordance with the “Minimum
Standard Detail Requirements for Land Title Surveys” adopted by the American Land Title Association
in 2005, and shall show, without limitation:




(i) the location of the perimeter of such Real Property by courses and distances with
all reference points shown or referred to in the aforesaid title policy;




(ii) all easements (including those easements whose existence is disclosed by physical
inspection of such Real Property), rights-of-way and the location of all utility lines
servicing the improvements on such Real Property;




(iii) the established building lines;




(iv) the full legal description of the real estate (conforming to the legal description
set forth in the aforesaid title policy) and a certification as to the acreage and square
footage thereof;




(v) the highway and street right-of-way lines abutting such Real Property and the width
thereof; and




(vi) encroachments upon such Real Property and the extent thereof in feet and inches.


 


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(b) Zoning Compliance and Evidence of Utilities. No later than ten days after the
Closing Date, unless a longer period is agreed to by the Administrative Agent in writing, with
respect to each parcel of the Real Property owned by a Credit Party and part of the Eligible Fixed
Asset Amount, and for which the deliveries required pursuant to Section 4.2(b)(iv) and (v) hereof
have not been made to the Administrative Agent, the Borrowers shall have delivered to the
Administrative Agent:




(i) evidence satisfactory to the Administrative Agent of compliance with all building
and zoning codes applicable to such Real Property (or a proper title endorsement
satisfactory to the Administrative Agent covering such compliance); and




(ii) evidence of the availability of utilities for the buildings located on such Real
Property.



(c) Phase I Environmental Reports. No later than thirty (30) days after the Closing
Date, unless a longer period is agreed to by the Administrative Agent in writing, the Borrowers
shall have delivered to the Administrative Agent the results of a Phase I Environmental Report for
each parcel of Real Property (unless a Phase I Environmental Report for such Real Property was
delivered to the Administrative Agent in connection with the Prior Credit Agreements and such
report continues to be satisfactory to the Administrative Agent).



ARTICLE V. COVENANTS




Section 5.1. Insurance. Each Company shall at all times maintain insurance upon its
Inventory, Equipment and other personal and real
property in such form, written by such companies, in such amounts, for such periods, and against
such risks as is generally consistent with insurance coverage maintained by the Companies on the
Closing Date, with provisions satisfactory to the Administrative Agent for, with respect to Credit
Parties, payment of all losses thereunder to the Administrative Agent, for the benefit of the
Lenders, and such Company as their interests may appear (with lender’s loss payable endorsement in
favor of the Administrative Agent, for the benefit of the Lenders), and, if required by the
Administrative Agent after the occurrence of an Event of Default, the Borrowers shall deposit the
policies with the Administrative Agent. Any such policies of insurance shall provide for no fewer
than thirty (30) days prior written notice of cancellation to the Administrative Agent and the
Lenders. Any sums received by the Administrative Agent, for the benefit of the Lenders, in payment
of insurance losses, returns, or unearned premiums under the policies shall be applied as set forth
in Section 2.12(c) and (d) hereof. The Administrative Agent is hereby authorized to act as
attorney-in-fact for the Companies, after the occurrence and during the continuance of an Event of
Default, in obtaining, adjusting, settling and canceling such insurance and indorsing any drafts.
In the event of failure to provide such insurance as herein provided, the Administrative Agent may,
at its option, provide such insurance and the Borrowers shall pay to the Administrative Agent, upon
demand, the cost thereof. Should the Borrowers fail to pay such sum to the Administrative Agent
upon demand, interest shall accrue thereon, from the date of demand until paid in full, at the
Default Rate. Within ten days of the Administrative Agent’s written request, the Borrowers shall
furnish to the Administrative Agent such information about the insurance of the Companies as the
Administrative Agent may from time to time reasonably request, which information shall be prepared
in form and detail satisfactory to the Administrative Agent and certified by a Financial Officer.


 


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Section 5.2. Money Obligations. Each Company shall pay in full (a) prior in each
case to the date when penalties would attach, all taxes, assessments and governmental charges and
levies (except only those so long as and to the extent that the same shall be contested in good
faith by appropriate and timely proceedings and for which adequate provisions have been established
in accordance with GAAP) for which it may be or become liable or to which any or all of its
properties may be or become subject; (b) all of its material wage obligations to its employees in
compliance with the Fair Labor Standards Act (29 U.S.C. §§ 206-207) or any comparable provisions,
and, in the case of the Foreign Subsidiaries, those obligations under foreign laws with respect to
employee source deductions, obligations and employer obligations to its employees; and (c) all of
its other material obligations calling for the payment of money (except only those so long as and
to the extent that the same shall be contested in good faith and for which adequate provisions have
been established in accordance with GAAP) before such payment becomes overdue.




Section 5.3. Financial Statements, Collateral Reporting and Information.



(a) Borrowing Base. The Administrative Borrower shall deliver to the Administrative
Agent, as frequently as the Administrative Agent may request, but no less frequently than by 5:00
P.M. (Eastern time) on the twentieth (20th) day of each calendar month (or the next
Business Day if such day is not a Business Day), a Borrowing Base Certificate (for the period
ending on the last day of the month prior to the date such Borrowing Base Certificate
is submitted) prepared and certified by a Financial Officer; provided that, if, at any time, the
Revolving Credit Availability shall be less than Thirty Million Dollars ($30,000,000), the
Administrative Borrower shall, until the Revolving Credit Availability has been equal to or greater
than Thirty Million Dollars ($30,000,000) for a period of thirty (30) consecutive days, deliver to
the Administrative Agent by 5:00 P.M. (Eastern time) on each Wednesday of each calendar week (or
the next Business Day if such Wednesday is not a Business Day), a Borrowing Base Certificate (for
the period ending on the Business Day prior to the date such Borrowing Base Certificate is
submitted) prepared and certified by a Financial Officer. Each such Borrowing Base Certificate
shall be updated for all activity (sales, billings, collections, credits and similar information)
impacting the accounts receivable of the Borrowing Base Companies from the date of the immediately
preceding Borrowing Base Certificate to the date of such Borrowing Base Certificate. The amount of
Eligible Inventory and the determination as to which accounts receivable constitute Eligible
Accounts Receivable to be included on each Borrowing Base Certificate shall, absent a request from
the Administrative Agent that such amounts be calculated more frequently, be the amount that is
calculated and updated monthly pursuant to subsections (f) and (g) below.



(b) Monthly Financials. The Administrative Borrower shall deliver to the
Administrative Agent, within thirty (30) days after the end of each of the first eleven (11) months
of each calendar year, monthly internal unaudited balance sheets of Gibraltar as of the end of such
month and statements of income (loss), for the month and fiscal year-to-date periods, and a
comparison to budget or plan, all prepared on a Consolidated and consolidating (in accordance with
GAAP) basis, in form and detail satisfactory to the Administrative Agent and certified by a
Financial Officer.


 


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(c) Quarterly Financials. The Administrative Borrower shall deliver to the
Administrative Agent, as soon as available and in any event within forty-five (45) days after the
close of the first three quarterly accounting periods in each fiscal year of Gibraltar (but no
later than the date on which Gibraltar would be required to file a Form 10-Q under the Exchange Act
if it were subject to Sections 15 and 13(d) of the Exchange Act), the unaudited balance sheets of
Gibraltar as of the end of such quarterly period and the related unaudited statements of income and
of cash flows for such quarterly period and for the fiscal year to date, in each case prepared on a
Consolidated basis, and setting forth, in the case of such unaudited statements of income and of
cash flows, comparative figures for the related periods in the prior fiscal year, and which shall
be certified on behalf of the Borrowers by the Chief Financial Officer of the Administrative
Borrower, subject to changes resulting from normal year-end audit adjustments; provided that, if
such quarterly financial statements are identical to the ones filed with the SEC, (i) the Borrowers
hereby agree that the Administrative Agent and the Lenders shall be entitled to rely on any
certification given to the SEC by the Chief Financial Officer of the Administrative Borrower with
respect to such quarterly financial statements, and (ii) such certification shall satisfy the
certification requirements of this subpart (c).



(d) Annual Audited Financial Statement. The Administrative Borrower shall deliver to
the Administrative Agent, as soon as available and in any event within ninety (90) days after the
close of each fiscal year of Gibraltar (but no later than the date on which Gibraltar would be
required to file a Form 10-K under the Exchange Act if it were subject to Sections 15 and 13(d)
of the Exchange Act), balance sheets of Gibraltar as of the end of such fiscal year and the related
statements of income, stockholders’ equity and cash flows for such fiscal year, in each case
prepared on a Consolidated basis and setting forth comparative figures for the preceding fiscal
year, all in reasonable detail and accompanied by the opinion with respect to such financial
statements of independent public accountants of recognized national standing selected by the
Borrowers, which opinion shall be unqualified and shall (i) state that such accountants audited
such Consolidated financial statements in accordance with GAAP, that such accountants believe that
such audit provides a reasonable basis for their opinion, and that in their opinion such
Consolidated financial statements present fairly, in all material respects, the Consolidated
financial position of Gibraltar at the end of such fiscal year and the results of its operations
and cash flows for such fiscal year in conformity with GAAP, or (ii) contain such statements as are
customarily included in unqualified reports of independent accountants in conformity with the
recommendations and requirements of the American Institute of Certified Public Accountants (or any
successor organization).



(e) Compliance Certificate. The Administrative Borrower shall deliver to the
Administrative Agent, concurrently with the delivery of the financial statements set forth in
subsections (c) and (d) above, a Compliance Certificate.


 


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(f) Accounts Receivable Aging Report. The Administrative Borrower shall deliver to
the Administrative Agent an accounts receivable aging report, in form and substance satisfactory to
the Administrative Agent and signed by a Financial Officer, (i) concurrently with the delivery of a
Borrowing Base Certificate referenced in subsection (a) above, aged by the original invoice date of
accounts receivable of the Borrowing Base Companies, prepared as of the last day of the preceding
month, reconciled to the month-end balance sheet and month-end Borrowing Base Certificate, together
with the calculation of the current month-end Eligible Accounts Receivable of the Borrowing Base
Companies, (ii) upon the Administrative Agent’s request, an aging by original invoice date of all
existing accounts receivable, specifying the names, current value and dates of invoices for each
Account Debtor of the Borrowing Base Companies, and (iii) that includes any other information the
Administrative Agent shall reasonably request with respect to such accounts receivable and its
evaluation of such reports.



(g) Inventory Report. The Administrative Borrower shall deliver to the Administrative
Agent a summary of Inventory, in form and substance satisfactory to the Administrative Agent and
signed by a Financial Officer, concurrently with the delivery of a Borrowing Base Certificate
referenced in subsection (a) above, based upon month-end balances, reconciled to the month-end
balance sheet and the month-end Borrowing Base Certificate, and accompanied by an Inventory
certification, in form and substance reasonably acceptable to the Administrative Agent and
including a calculation of the Eligible Inventory of the Borrowing Base Companies (the calculation
of Eligible Inventory reflecting the then most recent month-end balance). The Administrative
Borrower shall deliver, after the end of each month, to the Administrative Agent, Inventory
records, in such detail as the Administrative Agent shall deem reasonably necessary to determine
the level of Eligible Inventory. The values shown on the Inventory reports shall be at the lower
of cost or market value, determined in accordance with the usual cost accounting system of the
Borrowing Base Companies. The Administrative Borrower
shall provide such other reports with respect to the Inventory of the Borrowing Base Companies as
the Administrative Agent may reasonably request from time to time.



(h) Accounts Payable Aging Report. The Administrative Borrower shall deliver to the
Administrative Agent, concurrently with the delivery of a Borrowing Base Certificate referenced in
subsection (a) above, in form and detail satisfactory to the Administrative Agent, an aging summary
of the accounts payable of the Borrowing Base Companies, dated as of the last day of the preceding
month.



(i) Equipment Report. The Administrative Borrower shall deliver to the Administrative
Agent, as frequently as the Administrative Agent may reasonably request, an itemized schedule
describing the kind, type, quality, quantity and book value of the Equipment of the Credit Parties.



(j) Management Reports. The Administrative Borrower shall deliver to the
Administrative Agent, concurrently with the delivery of the annual audit report referenced in
subsection (d) above, a copy of any management report, letter or similar writing that may have been
furnished to the Companies by the independent public accountants in respect of the systems,
operations, financial condition or properties of the Companies.



(k) Customer List. The Administrative Borrower shall deliver to the Administrative
Agent an updated customer list, concurrently with the delivery of any field audit report and upon
request by any field examiner of the Administrative Agent, that sets forth all Account Debtors of
the Borrowing Base Companies, including but not limited to the name, address and contact
information of each such Account Debtor, in form and detail satisfactory to the Administrative
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(l) Projections. The Administrative Borrower shall deliver to the Administrative
Agent, within thirty (30) days after the end of each fiscal year of Gibraltar, projected monthly
balance sheets, income statements, cash-flow statements and a calculation of the projected
Revolving Credit Availability and projected compliance with Section 5.7 hereof for the following
fiscal year of Gibraltar, all prepared on a Consolidated basis, consistent with GAAP and in form
and detail satisfactory to the Administrative Agent.



(m) Locations of Collateral. The Administrative Borrower shall deliver to the
Administrative Agent, within thirty (30) days after the end of each fiscal year of Gibraltar, a
replacement Schedule 6.9 that sets forth each location (including third party locations)
where any Credit Party conducts business or maintains any Accounts, Inventory or Equipment, in form
and substance satisfactory to the Administrative Agent.



(n) Financial Information of the Companies. The Administrative Borrower shall deliver
to the Administrative Agent and the Lenders, within ten days of the written request of the
Administrative Agent, such other information about the financial condition, properties and
operations of any Company as may from time to time be reasonably requested, which information shall
be submitted in form and detail satisfactory to the Administrative Agent and certified by a
Financial Officer of the Company or Companies in question.



(o) Generally. With respect to any document (including financial statements,
borrowing base certificates, compliance certificates, reports and other financial information)
required to be delivered by the Borrowers to the Administrative Agent by this Section 5.3, the
Administrative Agent shall have the sole discretion to extend the required delivery date of any
such document for a period of up to five Business Days; provided that any such extension granted by
the Administrative Agent shall be effective only if in writing, only for the specific instance
given, and shall not establish any course of dealing among the parties for any future delivery
requirements.



Section 5.4. Financial Records. Each Company shall at all times maintain true and
complete records and books of account, including, without limiting the generality of the foregoing,
appropriate provisions for possible losses and liabilities, all in accordance with GAAP, and at all
reasonable times (during normal business hours and, other than after the occurrence of an Event of
Default, upon reasonable notice to such Company) permit the Administrative Agent, or any
representative of the Administrative Agent, to examine such Company’s books and records and to make
excerpts therefrom and transcripts thereof. The Administrative Agent shall provide to any Lender,
upon request therefor, copies of any excerpts and transcripts provided to the Administrative Agent
pursuant to this Section 5.4.




 


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Section 5.5. Franchises; Change in Business.



(a) Each Company (other than a Non-Material Subsidiary) shall preserve and maintain at all
times its existence, and its rights and franchises necessary for its business, except as otherwise
permitted pursuant to Section 5.12 hereof.



(b) No Company shall engage in any business if, as a result thereof, the general nature of the
business of the Companies taken as a whole would be substantially changed from the general nature
of the business the Companies are engaged in on the Closing Date.




Section 5.6. ERISA Pension and Benefit Plan Compliance.



(a) Generally. No Company shall incur any material accumulated funding deficiency
within the meaning of ERISA, or any material liability to the PBGC, established thereunder in
connection with any ERISA Plan. The Borrowers shall furnish to the Administrative Agent (i) as
soon as possible and in any event within thirty (30) days after any Company knows or has reason to
know that any Reportable Event with respect to any ERISA Plan has occurred, a statement of a
Financial Officer of such Company, setting forth details as to such Reportable Event and the action
that such Company proposes to take with respect thereto, together with a copy of the notice of such
Reportable Event given to the PBGC if a copy of such notice is available to such Company, and (ii)
promptly after receipt thereof a copy of any notice such Company, or any member of the Controlled
Group may receive from the PBGC or the Internal Revenue Service with respect to any ERISA Plan
administered by such Company; provided that this latter clause shall not apply to notices of
general application promulgated by the PBGC or the Internal Revenue Service. The Borrowers shall
promptly notify the Administrative Agent of any material taxes assessed, proposed to be assessed or
that the Borrowers have reason to believe may be assessed against a Company by the Internal Revenue
Service with respect to any ERISA Plan. As used in this Section 5.6(a), “material” means the
measure of a matter of significance that shall be determined as being an amount equal to five
percent (5%) of Consolidated Net Worth. As soon as practicable, and in any event within twenty
(20) days, after any Company shall become aware that an ERISA Event shall have occurred, such
Company shall provide the Administrative Agent with notice of such ERISA Event with a certificate
by a Financial Officer of such Company setting forth the details of the event and the action such
Company or another Controlled Group member proposes to take with respect thereto. The Borrowers
shall, at the request of the Administrative Agent, deliver or cause to be delivered to the
Administrative Agent true and correct copies of any documents relating to the ERISA Plan of any
Company.




(b) Foreign Pension Plans and Benefit Plans.




(i) For each existing, or hereafter adopted, material Foreign Pension Plan and Foreign
Benefit Plan, the Administrative Borrower and any appropriate Foreign Subsidiary shall in a
timely fashion comply with and perform in all material respects all of its obligations under
and in respect of such Foreign Pension Plan or Foreign Benefit Plan, including under any
funding agreements and all applicable laws (including any fiduciary, funding, investment and
administration obligations).


 


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(ii) All employer or employee payments, contributions or premiums required to be
remitted, paid to or in respect of each material Foreign Pension Plan or Foreign Benefit
Plan shall be paid or remitted by the Administrative Borrower and any appropriate Foreign
Subsidiary in a timely fashion in accordance with the terms thereof, any funding agreements
and all applicable laws.




(iii) The Administrative Borrower and any appropriate Foreign Subsidiary shall deliver
to the Administrative Agent (A) if requested by the Administrative Agent, copies of each
annual and other return, report or valuation with respect to each Foreign Pension Plan as
filed with any applicable Governmental Authority; (B) promptly after receipt thereof, a copy
of any material direction, order, notice, ruling or opinion that the Administrative Borrower
and any appropriate Foreign Subsidiary may receive from any applicable Governmental
Authority with respect to any Foreign Pension Plan; and (C) notification within thirty (30)
days of any increases having a cost to the Companies in excess of Two Hundred Fifty Thousand
Dollars ($250,000) per annum in the aggregate, in the benefits of any existing material
Foreign Pension Plan or Foreign Benefit Plan, or the establishment of any new material
Foreign Pension Plan or Foreign Benefit Plan, or the commencement of contributions to any
such plan to which the Companies were not previously contributing.




(iv) As used in this subsection (b), “material” means the measure of a matter of
significance, individually or collectively, in excess of Five Million Dollars ($5,000,000).




Section 5.7. Financial Covenants.



(a) Fixed Charge Coverage Ratio. The Borrowers shall not suffer or permit at any time
the Fixed Charge Coverage Ratio to be less than 1.25 to 1.00 on the Closing Date and thereafter.



Section 5.8. Borrowing. No Company shall create, incur or have outstanding any
Indebtedness of any kind; provided that this Section 5.8 shall not apply to the following:




(a) the Loans, the Letters of Credit and any other Indebtedness under this Agreement;



(b) any loans granted to, or Capitalized Lease Obligations or Synthetic Leases entered into
by, any Company for the purchase or lease of fixed or capital assets (and refinancings of such
Synthetic Leases, loans or Capitalized Lease Obligations), which loans, Capitalized Lease
Obligations and Synthetic Leases shall only be secured by the fixed or capital assets being
purchased or leased, so long as (i) the aggregate principal amount of all such loans, Capitalized
Lease Obligations and Synthetic Leases for all Companies shall not exceed Thirty-Five Million
Dollars ($35,000,000) at any time outstanding (as calculated using Capitalized Lease Obligations in
lieu of principal amount, in the case of any Capital Leases, and using the present value, based on
the implicit interest rate, in lieu of principal amount, in the case of any Synthetic Lease), and
(ii) the Indebtedness secured thereby does not exceed the cost of acquiring, constructing or
improving such fixed or capital assets;


 


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(c) the Indebtedness existing on the Closing Date, in addition to the other Indebtedness
permitted to be incurred pursuant to this Section 5.8, as set forth in Schedule 5.8 hereto
(and any extension, renewal or refinancing thereof but only to the extent that the principal amount
thereof does not increase after the Closing Date);



(d) loans to, and guaranties of Indebtedness of, a Company from a Company so long as each such
Company is a Credit Party;



(e) Indebtedness under any Hedge Agreement, so long as such Hedge Agreement shall have been
entered into in the ordinary course of business and not for speculative purposes;




(f) Permitted Foreign Subsidiary Loans, Guaranties and Investments;



(g) unsecured Indebtedness of Gibraltar in connection with the Subordinated Notes (including
any replacement or exchange notes) issued pursuant to the Subordinated Indenture (including any
refinancings thereof that are in form and substance reasonably acceptable to the Administrative
Agent), so long as (i) all of such Indebtedness shall be Subordinated at all times, and (ii) the
aggregate principal amount of such Indebtedness, when combined with Indebtedness permitted under
subsection (h) hereof, shall not exceed Three Hundred Fifty-Four Million Dollars ($354,000,000) at
any time outstanding;



(h) unsecured Indebtedness of Gibraltar incurred in connection with senior notes issued
pursuant to an agreement that is in form and substance reasonably acceptable to the Administrative
Agent, so long as the aggregate principal amount for all such Indebtedness, when combined with
Indebtedness permitted under subsection (g) hereof, shall not exceed Three Hundred Fifty-Four
Million Dollars ($354,000,000) at any time outstanding;



(i) other unsecured Indebtedness, in addition to the Indebtedness listed above, in an
aggregate principal amount for all Companies not to exceed One Hundred Million Dollars
($100,000,000) at any time outstanding, so long as, at the time of any incurrence thereof, and
after giving effect thereto, (i) the Borrowers shall be in compliance with the financial covenants
set forth in Section 5.7 hereof both immediately before and after giving pro forma effect to the
incurrence of such Indebtedness, (ii) such Indebtedness shall not constitute “Designated Senior
Indebtedness” or “Guarantor Designated Senior Indebtedness” (or similar term) under the
Subordinated Indenture (or any replacement indenture or similar agreement), and (iii) no Default or
Event of Default shall have occurred and be continuing or would result therefrom; and



(j) other unsecured Subordinated Indebtedness, in addition to the Indebtedness listed above,
so long as (i) no Default or Event of Default shall then exist or immediately after incurring any
of such Indebtedness will exist, (ii) all of such Indebtedness shall be Subordinated at all times,
(iii) the Borrowers shall be in compliance with the financial covenants set forth in Section 5.7
hereof both immediately before and after giving pro forma effect to the incurrence of such
Indebtedness, and (iv) the terms of all such Indebtedness are acceptable to the Administrative
Agent and the Required Lenders in their discretion; provided that, if such Subordinated
Indebtedness is incurred, and owed to a seller, in connection with an Acquisition made pursuant to
Section 5.13 hereof, subpart (iv) above shall not apply with respect to such Subordinated
Indebtedness.


 


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Section 5.9. Liens. No Company shall create, assume or suffer to exist (upon the
happening of a contingency or otherwise) any Lien upon any of its property or assets, whether now
owned or hereafter acquired; provided that this Section 5.9 shall not apply to the following:



(a) Liens for taxes not yet due or that are being actively contested in good faith by
appropriate proceedings and for which adequate reserves shall have been established in accordance
with GAAP;



(b) other statutory Liens, including, without limitation, statutory Liens of landlords,
carriers, warehousers, utilities, mechanics, repairmen, workers and materialmen, incidental to the
conduct of its business or the ownership of its property and assets that were incurred in the
ordinary course of business, and other similar Liens arising in the ordinary course of business,
that (i) were not incurred in connection with the incurring of Indebtedness or the obtaining of
advances or credit, and (ii) do not in the aggregate materially detract from the value of its
property or assets or materially impair the use thereof in the operation of its business;



(c) Liens on property or assets of a Subsidiary to secure obligations of such Subsidiary to a
Credit Party;



(d) any Lien granted to the Administrative Agent, for the benefit of the Lenders (and any
affiliates thereof);



(e) the Liens existing on the Closing Date as set forth in Schedule 5.9 hereto and
replacements, extensions, renewals, refundings or refinancings thereof, but only to the extent that
the amount of debt secured thereby, and the amount and description of property subject to such
Liens, shall not be increased;



(f) purchase money Liens on fixed or capital assets securing the loans, Capitalized Lease
Obligations and Synthetic Leases pursuant to Section 5.8(b) hereof, provided that such Lien is
limited to the purchase price and only attaches to the property being acquired;



(g) easements, rights-of-way, zoning or other restrictions, charges, encumbrances, defects in
title, prior rights of other Persons, and obligations contained in similar instruments, in each
case that do not secure Indebtedness and do not involve, and are not likely to involve at any
future time, either individually or in the aggregate, (i) a substantial and prolonged interruption
or disruption of the business activities of the Companies considered as an entirety, or (ii) a
Material Adverse Effect;



(h) Liens arising from the rights of lessors under leases (including financing statements
regarding property subject to lease) not in violation of the requirements of this Agreement;
provided that such Liens are only in respect of the property subject to, and secure only, the
respective lease (and any other lease with the same or an affiliated lessor);



(i) Liens arising from judgments, decrees or attachments in circumstances not constituting an
Event of Default under Section 8.9 hereof;


 


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(j) Liens (other than any Lien imposed by ERISA) incurred or deposits made in the ordinary
course of business in connection with workers’ compensation, unemployment insurance and other types
of social security, and mechanics’ Liens, carriers’ Liens, and other Liens to secure the
performance of tenders, statutory obligations, contract bids, government contracts, surety, appeal,
customs, performance and return-of-money bonds and other similar obligations, incurred in the
ordinary course of business (exclusive of obligations in respect of the payment for borrowed
money), whether pursuant to statutory requirements, common law or consensual arrangements;



(k) leases or subleases granted in the ordinary course of business to others not interfering
in any material respect with the business of the Companies and any interest or title of a lessor
under any lease not in violation of this Agreement; or



(l) rights of consignors of goods, whether or not perfected by the filing of a financing
statement under the U.C.C.



No Company shall enter into any contract or agreement (other than (i) a contract or agreement
entered into in connection with the purchase or lease of fixed assets that prohibits Liens on such
fixed assets or (ii) any agreement with a restriction that is not enforceable under Section 9-406,
9-407 or 9-408 of the U.C.C.) that would prohibit the Administrative Agent or the Lenders from
acquiring a security interest, mortgage or other Lien on, or a collateral assignment of, any of the
property or assets of such Company.



Section 5.10. Regulations T, U and X. No Company shall take any action that would
result in any non-compliance of the Loans or Letters of Credit with Regulations T, U or X, or any
other applicable regulation, of the Board of Governors of the Federal Reserve System.



Section 5.11. Investments, Loans and Guaranties. No Company shall (a) create,
acquire or hold any Subsidiary, (b) make or hold any investment in any stocks, bonds or securities
of any kind, (c) be or become a party to any joint venture or other partnership, (d) make or keep
outstanding any advance or loan to any Person, or (e) be or become a Guarantor of any kind (other
than a Guarantor of Payment under the Loan Documents); provided that this Section 5.11 shall not
apply to the following:




(i) any endorsement of a check or other medium of payment for deposit or collection
through normal banking channels or similar transaction in the normal course of business;




(ii) any investment in cash and Cash Equivalents;




(iii) the holding of each of the Subsidiaries listed on Schedule 6.1 hereto,
and the creation, acquisition and holding of and any investment in any new Subsidiary after
the Closing Date so long as such new Subsidiary shall have been created, acquired or held,
and investments made, in accordance with the terms and conditions of this Agreement;


 


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(iv) loans to, investments in and guaranties of the Indebtedness (permitted under
Section 5.8(d) hereof) of, a Company from or by a Company so long as each such Company is a
Credit Party;




(v) any Permitted Investment or Permitted Foreign Subsidiary Loans, Guaranties and
Investments, so long as no Default or Event of Default shall exist prior to or after giving
pro forma effect to such loan or investment;




(vi) any Acquisition permitted by Section 5.13 hereof;




(vii) unsecured Performance Guaranties (in form and substance reasonably acceptable to
the Administrative Agent) provided to a Person by a Company in connection with Asset
Dispositions permitted by Section 5.12 hereof or Acquisitions permitted by Section 5.13
hereof;




(viii) investments acquired by a Company (A) in exchange for any other investment held
by such Company in connection with or as a result of a bankruptcy, workout, reorganization
or recapitalization of the issuer of such other investment, or (B) as a result of a
foreclosure by a Company with respect to any secured investment or other transfer of title
with respect to any secured investment in default;




(ix) notes held by a Company evidencing a portion of the purchase price of an asset
disposed of pursuant to Section 5.12(h) hereof;




(x) investments by a Company in Hedge Agreements;




(xi) any guaranty of the Indebtedness permitted pursuant to Section 5.8(a), (d), (g),
(h), or (i) hereof;




(xii) receivables owing to a Credit Party in the ordinary course of business and
payable or dischargeable in accordance with customary trade terms; and




(xiii) any advance or loan to an officer or employee of a Company made in the ordinary
course of such Company’s business, so long as all such advances and loans from all Companies
aggregate not more than the maximum principal sum of Two Million Five Hundred Thousand
Dollars ($2,500,000) at any time outstanding.



For purposes of this Section 5.11, the amount of any investment in equity interests shall be based
upon the initial amount invested and shall not include any appreciation in value or return on such
investment but shall take into account repayments, redemptions and return of capital.



Section 5.12. Merger and Sale of Assets. No Company shall merge, amalgamate or
consolidate with any other Person, or sell, lease or transfer or otherwise dispose of any assets to
any Person other than in the ordinary course of business, except that, if no Default or Event of
Default shall then exist or immediately thereafter shall begin to exist:


 


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(a) a Domestic Subsidiary (other than a Borrower) may merge with (i) a Borrower (provided that
such Borrower shall be the continuing or surviving Person) or (ii) any one or more Guarantors of
Payment;



(b) GSCNY may merge with Gibraltar (provided that Gibraltar shall be the continuing or
surviving Person);



(c) a Domestic Subsidiary (other than a Borrower) may sell, lease, transfer or otherwise
dispose of any of its assets to (i) a Borrower or (ii) any Guarantor of Payment;



(d) a Borrower may sell, lease, transfer or otherwise dispose of any of its assets to another
Borrower;



(e) a Domestic Subsidiary (other than a Credit Party) may merge with or sell, lease, transfer
or otherwise dispose of any of its assets to any other Domestic Subsidiary;



(f) a Foreign Subsidiary may merge or amalgamate with another Company provided that, if either
Company is a Credit Party, a Credit Party shall be the continuing or surviving Person and each
Borrower shall be a continuing or surviving Person;



(g) a Foreign Subsidiary may sell, lease, transfer or otherwise dispose of any of its assets
to another Company; and



(h) if no Default or Event of Default shall have occurred and be continuing or would result
therefrom, and no Material Adverse Effect has occurred or will result therefrom, the Companies may
consummate any Asset Disposition, provided that:




(i) the consideration for each such Asset Disposition represents fair value and at
least eighty percent (80%) of such consideration consists of cash;




(ii) the cumulative aggregate value of the assets sold or transferred does not exceed
five percent (5%) of Consolidated Net Worth for all such transactions completed during any
fiscal year of Gibraltar;




(iii) in the case of any such transaction involving a sale of assets having an
aggregate value in excess of Ten Million Dollars ($10,000,000), at least five Business Days
prior to the date of completion of such transaction the Administrative Borrower shall have
delivered to the Administrative Agent (A) an officer’s certificate executed by an Authorized
Officer, which certificate shall contain (1) a description of the proposed transaction, and
(2) a certification that no Default, Event of Default or Material Adverse Effect has
occurred and is continuing, or would result from consummation of such transaction, and (B) a
Borrowing Base Certificate, prepared after giving pro forma effect to such transaction, to
be in form and substance acceptable to the Administrative Agent and certified by a Financial
Officer; and


 


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(iv) the proceeds of such Asset Disposition are, to the extent required pursuant to
Section 2.12(c)(ii) hereof, applied as a prepayment of the Term Loan.



Section 5.13. Acquisitions. No Company shall effect an Acquisition; provided that a
Company may effect an Acquisition so long as such Acquisition meets all of the following
requirements:



(a) such Acquisition is the Target Company Acquisition, so long as the aggregate Consideration
paid or to be payable for such Acquisition does not exceed One Hundred Thirty Million Dollars
($130,000,000); or




(b) such Acquisition meets all of the following requirements:




(i) in the case of an Acquisition that involves a merger, amalgamation or other
combination including a Borrower, such Borrower shall be the surviving entity;




(ii) in the case of an Acquisition that involves a merger, amalgamation or other
combination including a Credit Party (other than a Borrower), a Credit Party shall be the
surviving entity;




(iii) the business to be acquired shall be similar, or related to, or incidental to the
lines of business of the Companies;




(iv) the Companies shall be in full compliance with the Loan Documents both prior to
and after giving pro forma effect to such Acquisition;




(v) no Default or Event of Default shall exist prior to or after giving pro forma
effect to such Acquisition, thereafter shall begin to exist;




(vi) the Fixed Charge Coverage Ratio, as determined for the most recently completed
four fiscal quarters of Gibraltar, shall be no less than 1.25 to 1.00;




(vii) the Borrowers shall have provided to the Administrative Agent, at least five
Business Days prior to such Acquisition, historical financial statements of the target
entity and a pro forma financial statement of the Companies accompanied by a certificate of
a Financial Officer showing (A) pro forma compliance with Section 5.7 hereof, both before
and after giving effect to the proposed Acquisition, (B) Revolving Credit Availability of no
less than Fifty Million Dollars ($50,000,000) after giving effect to such Acquisition, and
(C) that the target entity has generated positive Target EBITDA (excluding proposed
synergies or other post acquisition actions or enhancements) for the most recently completed
twelve (12) consecutive calendar months prior to such Acquisition; and




(viii) the aggregate Consideration paid by the Companies (A) shall not exceed the
aggregate amount of One Hundred Thirty Million Dollars ($130,000,000) for such Acquisition,
or (B) when added to all other Acquisitions for all Companies during any
fiscal year of Gibraltar, would not exceed the aggregate amount of One Hundred Seventy-Five
Million Dollars ($175,000,000).


 


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Section 5.14. Notice.



(a) Each Borrower shall cause a Financial Officer of such Borrower to promptly notify the
Administrative Agent and the Lenders, in writing, whenever:




(i) a Default or Event of Default may occur hereunder or any representation or warranty
made in Article VI hereof or elsewhere in this Agreement or in any Related Writing may for
any reason cease in any material respect to be true and complete;




(ii) a Borrower learns of a litigation or proceeding against such Borrower before a
court, administrative agency or arbitrator that, if successful, could reasonably be expected
to have a Material Adverse Effect; and




(iii) a Borrower learns that there has occurred or begun to exist any event, condition
or thing that is reasonably likely to have a Material Adverse Effect.



(b) The Borrowers shall provide written notice to the Administrative Agent contemporaneously
with any notice provided to, or received from, the trustee or the noteholders under the
Subordinated Indenture or the Subordinated Notes, or any other Subordinated Indebtedness.



Section 5.15. Restricted Payments. No Company shall make or commit itself to make
any Restricted Payment at any time, except that:



(a) a Company may declare and pay or make Capital Distributions that are payable solely in
additional shares of its common stock (or warrants, options or other rights to acquire additional
shares of its common stock);



(b) Gibraltar may declare and pay or make Capital Distributions in cash, but only so long as
(i) no Default or Event of Default shall then exist or, after giving pro forma effect to such
payment, thereafter shall begin to exist, (ii) the Borrowers shall be in compliance with the
financial covenants set forth in Section 5.7 hereof both prior to and after giving pro forma effect
to each such Capital Distribution, (iii) the Fixed Charge Coverage Ratio shall be no less than 1.25
to 1.00 prior to and after giving pro forma effect to each such Capital Distribution, (iv)
Revolving Credit Availability shall be no less than Twenty-Five Million Dollars ($25,000,000) after
giving effect to such payment, and (v) the aggregate amount of all Capital Distributions made in
cash by Gibraltar shall not exceed Twenty-Five Million Dollars ($25,000,000) during any fiscal year
of Gibraltar;



(c) Gibraltar may repurchase its capital stock as required by Gibraltar’s executive
compensation program, so long as (i) no Default or Event of Default shall then exist or, after
giving pro forma effect to such payment, thereafter shall begin to exist, (ii) the proceeds of such
repurchase are used solely for the purpose of paying withholding tax incurred pursuant to the
issuance of stock (as compensation) under such executive compensation program, and (iii) the
amount of stock (as compensation) issued under such executive compensation program is consistent
with past business practices of Gibraltar;


 


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(d) after the Term Loan has been repaid in full, Gibraltar may repay up to Fifty Million
Dollars ($50,000,000) of the Subordinated Notes, but only so long as (i) no Default or Event of
Default shall then exist or, after giving pro forma effect to such payment, thereafter shall begin
to exist, and (ii) the Revolving Credit Availability shall be no less than Fifty Million Dollars
($50,000,000) after giving effect to such payment;



(e) any Borrower may make regularly scheduled payments of interest with respect to the
Subordinated Notes (including any additional interest payable in accordance with the terms of any
related registration rights agreement), subject to the terms and conditions (including the
subordination terms) of the Subordinated Notes; and



(f) any Borrower may make regularly scheduled payments of interest with respect to any
Subordinated Indebtedness (other than the Subordinated Notes), subject in each case to the terms
and conditions (including the subordination terms) of such Subordinated Indebtedness, so long as no
Default or Event of Default shall then exist, or, after giving pro forma effect to such payment,
thereafter shall begin to exist.



Section 5.16. Environmental Compliance. Each Company shall comply in all material
respects with any and all material Environmental Laws and Environmental Permits including, without
limitation, all Environmental Laws in jurisdictions in which such Company owns or operates a
facility or site, arranges for disposal or treatment of hazardous substances, solid waste or other
wastes, accepts for transport any hazardous substances, solid waste or other wastes or holds any
interest in real property or otherwise. Each Company shall furnish to the Administrative Agent and
the Lenders, promptly after receipt thereof, a copy of any material notice such Company may receive
from any Governmental Authority or private Person, or otherwise, that any material litigation or
proceeding pertaining to any environmental, health or safety matter has been filed or is threatened
against such Company, any real property in which such Company holds any interest or any past or
present operation of such Company. No Company shall allow the material release or disposal of
hazardous waste, solid waste or other wastes on, under or to any real property in which any Company
holds any ownership interest or performs any of its operations, in violation of any Environmental
Law. As used in this Section 5.16, “litigation or proceeding” means any demand, claim, notice,
suit, suit in equity action, administrative action, investigation or inquiry whether brought by any
Governmental Authority or private Person, or otherwise. Each Borrower shall defend, indemnify and
hold the Administrative Agent and the Lenders harmless against all costs, expenses, claims,
damages, penalties and liabilities of every kind or nature whatsoever (including attorneys’ fees)
arising out of or resulting from the noncompliance of any Company with any Environmental Law. Such
indemnification shall survive any termination of this Agreement.


 


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Section 5.17. Affiliate Transactions. Except as set forth on Schedule 5.17
hereto, no Company shall, directly or indirectly, enter into or permit to exist any transaction or
series of transactions (including, without limitation, the purchase, sale, lease or exchange of any
property or the rendering of any service) with any Affiliate (other than, in the case of the
Borrowers, any
Subsidiary, and in the case of a Subsidiary, the Borrowers or another Subsidiary) (each, an
“Affiliate Transaction”), other than agreements and transactions with and payments to officers,
directors and shareholders that are either (a) entered into in the ordinary course of business and
not prohibited by any of the provisions of this Agreement or that are expressly permitted by the
provisions of this Agreement, or (b) entered into outside the ordinary course of business, approved
by the directors or shareholders of the Borrowers, and not prohibited by any of the provisions of
this Agreement or in violation of any law, rule or regulation; provided that (i) any such Affiliate
Transaction is entered into in the ordinary course of business and pursuant to the reasonable
requirements of such Borrower’s or such Subsidiary’s business and upon fair and reasonable terms no
less favorable to such Borrower or such Subsidiary than would be obtained in a comparable
arm’s-length transaction with a Person other than an Affiliate, (ii) in the event such Affiliate
Transaction involves an aggregate consideration in excess of Five Million Dollars ($5,000,000), the
terms of such transaction have been approved by a majority of the members of the Board of Directors
of Gibraltar and by a majority of the disinterested directors, if any (and such majority or
majorities, as the case may be, determines that such transaction satisfies the requirements set
forth in subpart (i) hereof), and (iii) in the event such Affiliate Transaction involves an
aggregate consideration in excess of Ten Million Dollars ($10,000,000), Gibraltar has received a
written opinion from an independent investment banking, accounting or appraisal firm of nationally
recognized standing that such Affiliate Transaction is either (A) not materially less favorable
than those that might reasonably have been obtained in a comparable transaction at such time on an
arm’s-length basis from a Person that is not an Affiliate or (B) fair to the Borrowers or such
Subsidiary, as the case may be, from a financial point of view.



Section 5.18. Use of Proceeds. The Borrowers’ use of the proceeds of the Loans shall
be for working capital and other general corporate purposes of the Companies and for Acquisitions
permitted hereunder.



Section 5.19. Corporate Names and Locations of Collateral. No Company shall (a)
change its corporate name, or (b) change its state, province or other jurisdiction, or form of
organization, or extend or continue its existence in or to any other jurisdiction (other than its
jurisdiction of organization at the date of this Agreement); unless, in each case, the
Administrative Borrower shall have provided the Administrative Agent with at least fifteen (15)
days prior written notice thereof. The Administrative Borrower shall also promptly notify the
Administrative Agent of (i) any change in any location where a material amount of any Credit
Party’s Inventory or Equipment is maintained in the United States, and any new locations where any
Credit Party’s Inventory or Equipment is to be maintained in the United States; (ii) any change in
the location of the office where any Credit Party’s records pertaining to its Accounts are kept;
(iii) the location of any new places of business and the changing or closing of any of its existing
places of business; and (iv) any change in the location of any Credit Party’s chief executive
office. In the event of any of the foregoing or if otherwise deemed appropriate by the
Administrative Agent, the Administrative Agent is hereby authorized to file new U.C.C. Financing
Statements describing the Collateral and otherwise in form and substance sufficient for recordation
wherever necessary or appropriate, as determined in the Administrative Agent’s sole discretion, to
perfect or continue perfected the security interest of the Administrative Agent, for the benefit of
the Lenders, in the Collateral. The Borrowers shall pay all filing and recording fees and taxes in
connection with the filing or recordation of such U.C.C. Financing Statements
and security interests and shall promptly reimburse the Administrative Agent therefor if the
Administrative Agent pays the same. Such amounts not so paid or reimbursed shall be Related
Expenses hereunder.


 


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Section 5.20. Subsidiary Guaranties, Security Documents and Pledge of Stock or Other
Ownership Interest.



(a) Guaranties and Security Documents. Each Subsidiary (that is not a Non-Material
Subsidiary) created, acquired or held subsequent to the Closing Date, shall promptly execute and
deliver to the Administrative Agent, for the benefit of the Lenders, a Guaranty of Payment (or a
Guaranty of Payment Joinder) of all of the Obligations and a Pledge and Security Agreement Joinder
(or a separate security agreement, in form and substance acceptable to the Administrative Agent)
and Mortgages, as appropriate, such agreements to be prepared by the Administrative Agent and in
form and substance acceptable to the Administrative Agent, along with any such other supporting
documentation, Security Documents, corporate governance and authorization documents, and an opinion
of counsel as may be deemed necessary or advisable by the Administrative Agent; provided that no
Foreign Subsidiary shall be subject to the requirements of this subsection (a) to the extent that
to do so would subject any Company to material liabilities for additional United States income
taxes by virtue of Section 956 of the Code (as of the Closing Date, as a result of such tax
liabilities, no Foreign Subsidiary will be a Guarantor of Payment). With respect to a Subsidiary
that has been classified as a Non-Material Subsidiary, at such time that such Subsidiary no longer
meets the requirements of a Non-Material Subsidiary, the Administrative Borrower shall provide to
the Administrative Agent prompt written notice thereof, and shall provide, with respect to such
Subsidiary, all of the documents referenced in the foregoing sentence.



(b) Pledge of Stock or Other Ownership Interest. With respect to the creation or
acquisition of a Domestic Subsidiary or first-tier Foreign Subsidiary of a Borrower or a Domestic
Subsidiary, the Administrative Borrower shall deliver to the Administrative Agent, for the benefit
of the Lenders, all of the share certificates (or other evidence of equity) owned by a Credit Party
pursuant to the terms of the Pledge and Security Agreement executed by such Credit Party; provided
that no such pledge shall include (i) shares of capital stock or other equity interests of any
Foreign Subsidiary that is not a first-tier Foreign Subsidiary, and (ii) shares of voting capital
stock or other voting equity interests in any first-tier Foreign Subsidiary in excess of sixty-five
percent (65%) of the total outstanding shares of voting capital stock or other voting equity
interest of such first-tier Foreign Subsidiary.



(c) Perfection or Registration of Interest in Foreign Shares. With respect to any
foreign shares pledged to the Administrative Agent, for the benefit of the Lenders, on or after the
Closing Date, the Administrative Agent shall at all times, in the discretion of the Administrative
Agent or the Required Lenders, have the right to perfect, at the Borrowers’ cost, payable upon
request therefor (including, without limitation, any foreign counsel, or foreign notary, filing,
registration or similar, fees, costs or expenses), its security interest in such shares in the
respective foreign jurisdiction. Such perfection may include the requirement that the applicable
Company promptly execute and deliver to the Administrative Agent a separate pledge document
(prepared by the Administrative Agent and in form and substance satisfactory to the


 


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Administrative Agent), covering such equity interests, that conforms to the requirements of the
applicable foreign jurisdiction, together with an opinion of local counsel as to the perfection of
the security interest provided for therein, and all other documentation necessary or desirable to
effect the foregoing and to permit the Administrative Agent to exercise any of its rights and
remedies in respect thereof.




Section 5.21. Collateral. Each Credit Party shall:



(a) at all reasonable times and, except after the occurrence of an Event of Default, upon
reasonable notice, allow the Administrative Agent by or through any of the Administrative Agent’s
officers, agents, employees, attorneys or accountants to (i) examine, inspect and make extracts
from such Credit Party’s books and other records, including, without limitation, the tax returns of
such Credit Party, (ii) arrange for verification of such Credit Party’s Accounts, under reasonable
procedures, directly with Account Debtors or by other methods, (iii) examine and inspect such
Credit Party’s Inventory and Equipment, wherever located, and (iv) conduct appraisals of the
Inventory of such Credit Party;



(b) promptly (but in no event later than ten days after request therefor) furnish to the
Administrative Agent upon request (i) additional statements and information with respect to the
Collateral, and all writings and information relating to or evidencing any of such Credit Party’s
Accounts (including, without limitation, computer printouts or typewritten reports listing the
mailing addresses of all present Account Debtors), and (ii) any other writings and information as
the Administrative Agent may request;



(c) promptly notify the Administrative Agent in writing upon the acquisition or creation of
any Accounts with respect to which the Account Debtor is the United States of America or any other
Governmental Authority, or any business that is located in a foreign country;



(d) promptly notify the Administrative Agent in writing upon the acquisition or creation by
such Credit Party of a Deposit Account or Securities Account not listed on the notice provided to
the Administrative Agent pursuant to Section 6.19 hereof, and, prior to or simultaneously with the
creation of such Deposit Account or Securities Account, provide for the execution of a Deposit
Account Control Agreement or Securities Account Control Agreement with respect thereto, if required
by the Administrative Agent, provided that (i) no Deposit Account Control Agreement shall be
required with respect to (A) an Immaterial Deposit Account, (B) any Deposit Account of The D.S.
Brown Company, D.S.B. Holding Corp. or Pacific Award Metals, Inc. that is not maintained with the
Administrative Agent or a Lender, if such Credit Party shall have closed such Deposit Account by
March 30, 2012 (unless a longer period is agreed to in writing by the Administrative Agent), and
(ii) all Deposit Accounts (other than those described in subpart (i) above) of the Credit Parties
shall be maintained with the Administrative Agent or a Lender;



(e) promptly notify the Administrative Agent in writing whenever the Equipment or Inventory of
such Credit Party is located at a location of a third party (other than another Company or
in-transit) that is not listed on Schedule 6.9 hereto and cause to be executed any
Landlord’s Waiver, Bailee’s Waiver, Processor’s Waiver, Consignee’s Waiver or similar document or
notice that may be required by the Administrative Agent or the Required Lenders;


 


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(f) promptly notify the Administrative Agent in writing of any information that such Credit
Party has or may receive with respect to the Collateral or the Real Property that might reasonably
be determined to materially and adversely affect the value thereof or the rights of the
Administrative Agent and the Lenders with respect thereto;



(g) maintain such Credit Party’s (i) Equipment in good operating condition and repair,
ordinary wear and tear excepted, making all necessary replacements thereof so that the value and
operating efficiency thereof shall at all times be maintained and preserved, (ii) finished goods
Inventory in saleable condition, and (iii) other items of Collateral, taken as an entirety, in such
conditions as is consistent with generally accepted business practices, ordinary wear and tear
excepted;



(h) deliver to the Administrative Agent, to hold as security for the Secured Obligations all
certificated Investment Property owned by such Credit Party, in suitable form for transfer by
delivery, or accompanied by duly executed instruments of transfer or assignment in blank, all in
form and substance satisfactory to the Administrative Agent, or in the event such Investment
Property is in the possession of a Securities Intermediary or credited to a Securities Account,
execute with the related Securities Intermediary a Securities Account Control Agreement over such
Securities Account in favor of the Administrative Agent, for the benefit of the Lenders, in form
and substance satisfactory to the Administrative Agent;



(i) provide to the Administrative Agent, on a quarterly basis (as necessary), a list of any
patents, trademarks or copyrights that have been federally registered by such Credit Party during
such quarter, and provide for the execution of an appropriate Intellectual Property Security
Agreement; and



(j) upon request of the Administrative Agent, promptly take such action and promptly make,
execute and deliver all such additional and further items, assurances, instruments and any other
writings as the Administrative Agent may from time to time deem necessary or appropriate,
including, without limitation, chattel paper, to carry into effect the intention of this Agreement,
or so as to completely vest in and ensure to the Administrative Agent and the Lenders their
respective rights hereunder and in or to the Collateral and the Real Property.



Each Credit Party hereby authorizes the Administrative Agent, on behalf of the Lenders, to file
U.C.C. Financing Statements or other appropriate notices with respect to the Collateral. If
certificates of title or applications for title are issued or outstanding with respect to any of
the Inventory or Equipment of any Credit Party, such Credit Party shall, upon request of the
Administrative Agent, (i) execute and deliver to the Administrative Agent a short form security
agreement, prepared by the Administrative Agent and in form and substance satisfactory to the
Administrative Agent, and (ii) deliver such certificate or application to the Administrative Agent
and cause the interest of the Administrative Agent, for the benefit of the Lenders, to be properly
noted thereon. Each Credit Party hereby authorizes the Administrative Agent or the Administrative
Agent’s designated agent (but without obligation by the Administrative Agent to


 


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do so) to incur Related Expenses (whether prior to, upon, or subsequent to any Default or Event of
Default), and the Borrowers shall promptly repay, reimburse, and indemnify the Administrative Agent
and the Lenders for any and all Related Expenses. If any Credit Party fails to keep and maintain
its Equipment in good operating condition, ordinary wear and tear excepted, the Administrative
Agent may (but shall not be required to) so maintain or repair all or any part of such Credit
Party’s Equipment and the cost thereof shall be a Related Expense; provided that, if no Default or
Event of Default exists at the time of such maintenance or repair, the Administrative Agent has
provided such Credit Party with written notice of any required maintenance or repair and such
Credit Party has not taken action to maintain or repair such Equipment within thirty (30) days of
receipt of such notice. All Related Expenses are payable to the Administrative Agent upon demand
therefor; the Administrative Agent may, at its option, debit Related Expenses directly to any
Deposit Account of a Company located at the Administrative Agent.



Section 5.22. Returns of Inventory. No Credit Party shall return any Inventory to a
supplier, vendor or other Person, whether for cash, credit or otherwise, unless (a) such return is
in the ordinary course of business; (b) no Default or Event of Default exists or would result
therefrom; (c) the Administrative Agent is promptly notified if the aggregate value of all
Inventory returned in any month exceeds Two Million Five Hundred Thousand Dollars ($2,500,000); and
(d) any payment received by such Credit Party for a return is promptly remitted to the
Administrative Agent for application to the Obligations.



Section 5.23. Acquisition, Sale and Maintenance of Inventory. The Credit Parties
shall take all steps to assure that all Inventory is produced in accordance with applicable laws,
including the Fair Labor Standards Act (29 U.S.C. §§ 206-207). The Credit Parties shall use, store
and maintain all Inventory with reasonable care and caution, in accordance with applicable
standards of any insurance and in conformity with all applicable laws, and shall make current rent
payments (within applicable grace periods provided for in leases) at all locations where any
Collateral is located.



Section 5.24. Property Acquired Subsequent to the Closing Date and Right to Take
Additional Collateral. The Borrowers shall provide the Administrative Agent with prompt
written notice with respect to any real or personal property (other than in the ordinary course of
business and excluding Accounts, Inventory, Equipment and General Intangibles and other property
acquired in the ordinary course of business or any Investment Property that constitutes securities
of a Foreign Subsidiary not required to be pledged pursuant to this Agreement) acquired by any
Credit Party subsequent to the Closing Date. In addition to any other right that the
Administrative Agent and the Lenders may have pursuant to this Agreement or otherwise, upon written
request of the Administrative Agent or the Required Lenders, whenever made, the Borrowers shall,
and shall cause each Guarantor of Payment to, grant to the Administrative Agent, for the benefit
of the Lenders, as additional security for the Secured Obligations, a first Lien on any real or
personal property of each Borrower and Guarantor of Payment (other than for leased equipment or
equipment subject to a purchase money security interest in which the lessor or purchase money
lender of such equipment holds a first priority security interest, in which case, the
Administrative Agent shall have the right to obtain a security interest junior only to such lessor
or purchase money lender), including,

 


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without
limitation, such property acquired subsequent to the Closing Date, in which the Administrative Agent does not have a first priority
Lien. The Borrowers agree, within ten days after the date of such written request, to secure all
of the Secured Obligations by delivering to the Administrative Agent security agreements,
intellectual property security agreements, pledge agreements, mortgages (or deeds of trust, if
applicable) or other documents, instruments or agreements or such thereof as the Administrative
Agent may require with respect to any of the Credit Parties. The Borrowers shall pay all
recordation, legal and other expenses in connection therewith.



Section 5.25. Restrictive Agreements. Except as set forth in this Agreement, the
Borrowers shall not, and shall not permit any of their Subsidiaries to, directly or indirectly,
enter into, incur or permit to exist or become effective, any “negative pledge” covenant or other
agreement, restriction or arrangement that prohibits, restricts or imposes any condition upon (a)
the ability of any Borrower or any Subsidiary to create, incur or suffer to exist any Lien upon any
of its property or assets as security for Indebtedness, or (b) the ability of any such Subsidiary
to make Capital Distributions or any other interest or participation in its profits owned by the
Borrowers or any Subsidiary, or pay any Indebtedness owed to the Borrowers or a Subsidiary, or to
make loans or advances to the Borrowers or any Subsidiaries, or transfer any of its property or
assets to the Borrowers or any Subsidiaries; except for such encumbrances or restrictions existing
under or by reason of (i) applicable law, (ii) customary provisions restricting subletting or
assignment of any lease governing a leasehold interest, (iii) customary provisions restricting
assignment of any licensing agreement entered into in the ordinary course of business, (iv)
customary provisions restricting the transfer or further encumbering of assets subject to Liens
permitted under Section 5.9(f) hereof, (v) customary restrictions affecting only a Subsidiary under
any agreement or instrument governing any of the Indebtedness of a Subsidiary permitted pursuant to
Section 5.8 hereof, (vi) restrictions affecting any Foreign Subsidiary under any agreement or
instrument governing any Indebtedness of such Foreign Subsidiary permitted pursuant to Section 5.8
hereof, and customary restrictions contained in “comfort” letters and guarantees of any such
Indebtedness, (vii) any document relating to Indebtedness secured by a Lien permitted by Section
5.9 hereof, insofar as the provisions thereof limit grants of junior liens on the assets securing
such Indebtedness, (viii) restrictions contained in the Subordinated Indenture relating to any
Indebtedness permitted under Section 5.8(g) hereof, and (ix) any Operating Lease or Capital Lease,
insofar as the provisions thereof limit grants of a security interest in, or other assignments of,
the related leasehold interest to any other Person.



Section 5.26. Most Favored Covenant Status. If any Credit Party at any time enters
into, or shall have entered into, or modifies any Material Indebtedness Agreement such that such
Material Indebtedness Agreement includes affirmative or negative covenants (or any events of
default or other type of restriction that would have the practical effect of any affirmative or
negative business or financial covenant, including, without limitation, any “put” or mandatory
prepayment of such Indebtedness upon the occurrence of a “change of control”) that are applicable
to any Credit Party, other than those set forth herein or in any of the other Loan Documents, the
Administrative Borrower shall promptly so notify the Administrative Agent and the Lenders and, if
the Administrative Agent shall so request by written notice to the Administrative Borrower (after a
determination has been made by the Administrative Agent or the Required Lenders that such Material
Indebtedness Agreement contains any such provisions that either individually or in the aggregate

 


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are
more favorable to the holders of such Indebtedness than any of the provisions set forth herein), the Borrowers, the Administrative Agent and the
Required Lenders shall promptly amend this Agreement to incorporate some or all of such provisions,
in the discretion of the Administrative Agent and the Required Lenders, into this Agreement and, to
the extent necessary and reasonably desirable to the Administrative Agent and the Required Lenders,
into any of the other Loan Documents, all at the election of the Administrative Agent or the
Required Lenders.



Section 5.27. Pari Passu Ranking. The Obligations shall, and the Borrowers shall
take all necessary action to ensure that the Obligations shall, at all times, rank at least pari
passu in right of payment with all other senior secured Indebtedness of each Credit Party.



Section 5.28. Guaranty Under Material Indebtedness Agreement. No Company shall be or
become a primary obligor or Guarantor of the Indebtedness incurred pursuant to the Subordinated
Indenture or any other Material Indebtedness Agreement unless such Company shall also be a
Guarantor of Payment under this Agreement prior to or concurrently therewith.



Section 5.29. Amendments to Material Indebtedness Agreements. No Company shall
amend, restate, supplement or otherwise modify the Subordinated Indenture or any other Material
Indebtedness Agreement without the prior written consent of the Administrative Agent if any such
amendment, restatement, supplement or other modification would, in the opinion of the
Administrative Agent, materially impact the rights or remedies of the Administrative Agent and the
Lenders hereunder.



Section 5.30. Prepayments and Refinancings of Other Debt. After the Closing Date, no
Company will make (or give any notice in respect thereof) any voluntary or optional payment or
prepayment or redemption or acquisition for value of (including, without limitation, by way of
depositing with the trustee with respect thereto money or securities before due for the purpose of
paying when due) or exchange of, or refinance or refund, any Indebtedness of any Company that has
an outstanding principal balance (or Capitalized Lease Obligation, in the case of a Capital Lease,
or present value, based on the implicit interest rate, in the case of a Synthetic Lease) greater
than Five Million Dollars ($5,000,000) (other than the Obligations and intercompany loans and
advances among the Companies); provided that a Company may refinance or refund any such
Indebtedness if the aggregate principal amount thereof (or Capitalized Lease Obligation, in the
case of a Capital Lease, or present value, based on the implicit interest rate, in the case of a
Synthetic Lease) is not increased.



Section 5.31. Amendment of Organizational Documents. Without the prior written
consent of the Administrative Agent, no Credit Party shall (a) amend its Organizational Documents
in any manner adverse to the Lenders, or (b) amend its Organizational Documents to change its name
or state, province or other jurisdiction of organization, or its form of organization.



Section 5.32. Fiscal Year of Borrowers. No Borrower shall change the date of its
fiscal year-end without the prior written consent of the Administrative Agent and the Required
Lenders. As of the Closing Date, the fiscal year end of each Borrower is December 31 of each year.


 


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Section 5.33. Further Assurances. The Borrowers shall, and shall cause each other
Credit Party to, promptly upon request by the Administrative Agent, or the Required Lenders through
the Administrative Agent, (a) correct any material defect or error that may be discovered in any
Loan Document or in the execution, acknowledgment, filing or recordation thereof, and (b) do,
execute, acknowledge, deliver, record, re-record, file, re-file, register and re-register any and
all such further acts, deeds, certificates, assurances and other instruments as the Administrative
Agent, or the Required Lenders through the Administrative Agent, may reasonably require from time
to time in order to carry out more effectively the purposes of the Loan Documents.



ARTICLE VI. REPRESENTATIONS AND WARRANTIES




Section 6.1. Corporate Existence; Subsidiaries; Foreign Qualification. Each Company
is duly organized, validly existing and in good standing (or comparable concept in the applicable
jurisdiction) under the laws of its state or jurisdiction of incorporation or organization, and is
duly qualified and authorized to do business and is in good standing (or comparable concept in the
applicable jurisdiction) as a foreign entity in the jurisdictions set forth opposite its name on
Schedule 6.1 hereto, and is duly qualified and authorized to do business and is in good
standing in all states and jurisdictions where the character of its property or its business
activities makes such qualification necessary except where the failure to be so qualified would not
be material to the ability of such Company to enforce its Accounts. Schedule 6.1 hereto
sets forth, as of the Closing Date, each Subsidiary of a Borrower (and whether such Subsidiary is a
Non-Material Subsidiary), its state (or jurisdiction) of formation, its relationship to Gibraltar,
including the percentage of each class of stock or other equity interest owned by a Company, each
Person that owns the stock or other equity interest of each Company (other than Gibraltar), the
location of its chief executive office and its principal place of business. Except as set forth on
Schedule 6.1 hereto, each Borrower, directly or indirectly, owns all of the equity
interests of each of its Subsidiaries (excluding directors’ qualifying shares and, in the case of
Foreign Subsidiaries, other nominal amounts of shares held by a Person other than a Company).



Section 6.2. Corporate Authority. Each Credit Party has the right and power and is
duly authorized and empowered to enter into, execute and deliver the Loan Documents to which it is
a party and to perform and observe the provisions of the Loan Documents. The Loan Documents to
which each Credit Party is a party have been duly authorized and approved by such Credit Party’s
board of directors or other governing body, as applicable, and are the valid and binding
obligations of such Credit Party, enforceable against such Credit Party in accordance with their
respective terms, except as enforceability thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium and similar laws and by equitable principles, whether considered at law
or in equity. The execution, delivery and performance of the Loan Documents do not conflict with,
result in a breach in any of the provisions of, constitute a default under, or result in the
creation of a Lien (other than Liens permitted under Section 5.9 hereof) upon any assets or
property of any Company under the provisions of, such Company’s Organizational Documents or any
material agreement to which such Company is a party.


 


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Section 6.3. Compliance with Laws and Contracts. Each Company:



(a) holds permits, certificates, licenses, orders, registrations, franchises, authorizations,
and other approvals from any Governmental Authority necessary for the conduct of its business and
is in compliance with all applicable laws relating thereto, except where the failure to do so would
not have a Material Adverse Effect;



(b) is in compliance with all federal, state, local, or foreign applicable statutes, rules,
regulations, and orders including, without limitation, those relating to environmental protection,
occupational safety and health, and equal employment practices, except where the failure to be in
compliance would not have a Material Adverse Effect;



(c) is not in violation of or in default under any agreement to which it is a party or by
which its assets are subject or bound, except with respect to any violation or default that would
not have a Material Adverse Effect;



(d) has ensured that no Person who owns a controlling interest in a Company or otherwise
controls a Company is (i) listed on the Specially Designated Nationals and Blocked Person List
maintained by the Office of Foreign Assets Control (“OFAC”), Department of the Treasury, or any
other similar lists maintained by OFAC pursuant to any authorizing statute, executive order or
regulation, or (ii) a Person designated under Section 1(b), (c) or (d) of Executive Order No. 13224
(September 23, 2001), any related enabling legislation or any other similar executive orders;



(e) is in compliance with all applicable Bank Secrecy Act (“BSA”) and anti-money laundering
laws and regulations; and




(f) is in compliance with the Patriot Act.



Section 6.4. Litigation and Administrative Proceedings. Except as disclosed on
Schedule 6.4 hereto, there are (a) no lawsuits, actions, investigations, examinations or
other proceedings pending or, to the knowledge of the Companies, threatened against any Company, or
in respect of which any Company may have any liability, in any court or before or by any
Governmental Authority, arbitration board, or other tribunal that could reasonably be expected to
have a Material Adverse Effect, (b) no orders, writs, injunctions, judgments, or decrees of any
court or Governmental Authority to which any Company is a party or by which the property or assets
of any Company are bound that could reasonably be expected to have a Material Adverse Effect, and
(c) no grievances, disputes, or controversies outstanding with any union or other organization of
the employees of any Company, or threats of work stoppage, strike, or pending demands for
collective bargaining, that could reasonably be expected to have a Material Adverse Effect.



Section 6.5. Title to Assets. Each Company has good title to and ownership of all
material property it purports to own, which property is free and clear of all Liens, except those
permitted under Section 5.9 hereof. As of the Closing Date, the Companies own the real estate
listed on Schedule 6.5 hereto.


 


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Section 6.6. Liens and Security Interests. On and after the Closing Date, except for
Liens permitted pursuant to Section 5.9 hereof, (a) there is and will be no U.C.C. Financing
Statement or similar notice of Lien outstanding covering any personal property of any Company; (b)
there is and will be no mortgage outstanding covering any real property of any Company; and (c) no
real or personal property of any Company is subject to any Lien of any kind. The Administrative
Agent, for the benefit of the Lenders, upon the filing of the U.C.C. Financing Statements and
taking such other actions necessary to perfect its Lien against Collateral of the corresponding
type as authorized hereunder will have a valid and enforceable first Lien on the Collateral to the
extent such Lien may be perfected by the filing of a U.C.C. Financing Statement. No Company has
entered into any contract or agreement (other than (i) a contract or agreement entered into in
connection with the purchase or lease of fixed assets that prohibits Liens on such fixed assets, or
(ii) any agreement with a restriction that is not enforceable under Section 9-406, 9-407 or 9-408
of the U.C.C.) that exists on or after the Closing Date that would prohibit the Administrative
Agent or the Lenders from acquiring a Lien on, or a collateral assignment of, any of the property
or assets of any Company.



Section 6.7. Tax Returns. All federal, state and local tax returns and other reports
required by law to be filed in respect of the income, business, properties and employees of each
Company have been filed (or extended or challenged as permitted by applicable law) and all taxes,
assessments, fees and other governmental charges that are due and payable have been paid, except as
will not cause or result in a Material Adverse Effect. The provision for taxes on the books of
each Company is adequate for all years not closed by applicable statutes and for the current fiscal
year.



Section 6.8. Environmental Laws. Each Company is in material compliance with all
Environmental Laws, including, without limitation, all Environmental Laws in all jurisdictions in
which any Company owns or operates, or has owned or operated, a facility or site, arranges or has
arranged for disposal or treatment of hazardous substances, solid waste or other wastes, accepts or
has accepted for transport any hazardous substances, solid waste or other wastes or holds or has
held any interest in real property or otherwise. No litigation or proceeding arising under,
relating to or in connection with any Environmental Law or Environmental Permit is pending or, to
the best knowledge of each Company, threatened, against any Company, any real property in which any
Company holds or has held an interest or any past or present operation of any Company. No material
release, threatened (to its knowledge) release or disposal of hazardous waste, solid waste or other
wastes is occurring, or has occurred (other than those that are currently being remediated in
accordance with Environmental Laws), on, under or to any real property in which any Company holds
any interest or performs any of its operations, in violation of any Environmental Law. As used in
this Section 6.8, “litigation or proceeding” means any demand, claim, notice, suit, suit in equity,
action, administrative action, investigation or inquiry whether brought by any Governmental
Authority or private Person, or otherwise.



Section 6.9. Locations. As of the Closing Date, the Credit Parties have places of
business or maintain their Accounts, Inventory and Equipment at the locations (including third
party locations) set forth on Schedule 6.9 hereto, and each Credit Party’s chief executive
office is set forth on Schedule 6.9 hereto. Schedule 6.9 hereto further specifies
whether each location, as
of the Closing Date, (a) is owned by the Credit Parties, or (b) is leased by a Credit Party from a
third party, and, if leased by a Credit Party from a third party, if a Landlord’s Waiver has been
requested. As of the Closing Date, Schedule 6.9 hereto correctly identifies the name and
address of each third party location where assets of the Credit Parties are located.


 


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Section 6.10. Continued Business. There exists no actual, pending, or, to each
Borrower’s knowledge, any threatened termination, cancellation or limitation of, or any
modification or change in the business relationship of any Company and any customer or supplier, or
any group of customers or suppliers, whose purchases or supplies, individually or in the aggregate,
are material to the business of any Company, and there exists no present condition or state of
facts or circumstances that would have a Material Adverse Effect or prevent a Company from
conducting such business or the transactions contemplated by this Agreement in substantially the
same manner in which it was previously conducted.




Section 6.11. Employee Benefits Plans.



(a) US Employee Benefit Plans. Schedule 6.11 hereto identifies each material
ERISA Plan as of the Closing Date. No ERISA Event has occurred or is expected to occur with
respect to an ERISA Plan. Full payment has been made of all amounts that a Controlled Group member
is required, under applicable law or under the governing documents, to have paid as a contribution
to or a benefit under each ERISA Plan. The liability of each Controlled Group member with respect
to each ERISA Plan has been fully funded based upon reasonable and proper actuarial assumptions,
has been fully insured, or has been fully reserved for on its financial statements. No changes
have occurred or are expected to occur that would cause a material increase in the cost of
providing benefits under the ERISA Plan. With respect to each ERISA Plan that is intended to be
qualified under Code Section 401(a), (i) the ERISA Plan and any associated trust operationally
comply, in all material respects, with the applicable requirements of Code Section 401(a); (ii) the
ERISA Plan and any associated trust have been amended to comply with all such requirements as
currently in effect, other than those requirements for which a retroactive amendment can be made
within the “remedial amendment period” available under Code Section 401(b) (as extended under
Treasury Regulations and other Treasury pronouncements upon which taxpayers may rely); (iii) the
ERISA Plan and any associated trust have received a favorable determination letter from the
Internal Revenue Service stating that the ERISA Plan qualifies under Code Section 401(a), that the
associated trust qualifies under Code Section 501(a) and, if applicable, that any cash or deferred
arrangement under the ERISA Plan qualifies under Code Section 401(k), unless the ERISA Plan was
first adopted at a time for which the above-described “remedial amendment period” has not yet
expired; (iv) the ERISA Plan currently satisfies the requirements of Code Section 410(b), without
regard to any retroactive amendment that may be made within the above-described “remedial amendment
period”; and (v) no contribution made to the ERISA Plan is subject to an excise tax under Code
Section 4972. With respect to any Pension Plan, the “accumulated benefit obligation” of Controlled
Group members with respect to the Pension Plan (as determined in accordance with Statement of
Accounting Standards No. 87, “Employers’ Accounting for Pensions”) does not exceed the fair market
value of Pension Plan assets.


 


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(b) Foreign Pension Plan and Benefit Plans. As of the Closing Date, Schedule
6.11 hereto lists all Foreign Benefit Plans and Foreign Pension Plans currently maintained or
contributed to by Gibraltar and any appropriate Foreign Subsidiaries. The Foreign Pension Plans
are duly registered under all applicable laws which require registration. Gibraltar and any
appropriate Foreign Subsidiaries have complied with and performed all of its obligations under and
in respect of the Foreign Pension Plans and Foreign Benefit Plans under the terms thereof, any
funding agreements and all applicable laws (including any fiduciary, funding, investment and
administration obligations) except to the extent as would not reasonably be expected to have a
Material Adverse Effect. All employer and employee payments, contributions or premiums to be
remitted, paid to or in respect of each Foreign Pension Plan or Foreign Benefit Plan have been paid
in a timely fashion in accordance with the terms thereof, any funding agreement and all applicable
laws except to the extent the failure to do so would not reasonably be expected to have a Material
Adverse Effect. There are no outstanding actions or suits concerning the assets of the Foreign
Pension Plans or the Foreign Benefit Plans. Each of the Foreign Pension Plans is fully funded on
an ongoing basis as required by all laws applicable to such Foreign Pension Plans (using actuarial
methods and assumptions as of the date of the valuations last filed with the applicable
Governmental Authorities and that are consistent with generally accepted actuarial principles).



Section 6.12. Consents or Approvals. No consent, approval or authorization of, or
filing, registration or qualification with, any Governmental Authority or any other Person is
required to be obtained or completed by any Company in connection with the execution, delivery or
performance of any of the Loan Documents, that has not already been obtained or completed, except
the filing and recording of financing statements and other documents necessary in order to perfect
the Liens created by this Agreement or the Security Documents.



Section 6.13. Solvency. Each Borrower has received consideration that is the
reasonably equivalent value of the obligations and liabilities that such Borrower has incurred to
the Administrative Agent and the Lenders. No Borrower is insolvent as defined in any applicable
state, federal or relevant foreign statute, nor will any Borrower be rendered insolvent by the
execution and delivery of the Loan Documents to the Administrative Agent and the Lenders. No
Borrower is engaged or about to engage in any business or transaction for which the assets retained
by it are or will be an unreasonably small amount of capital, taking into consideration the
obligations to the Administrative Agent and the Lenders incurred hereunder. No Borrower intends
to, nor does it believe that it will, incur debts beyond its ability to pay such debts as they
mature.



Section 6.14. Financial Statements. The audited Consolidated financial statements of
Gibraltar, for the fiscal year ended December 31, 2010 and the unaudited Consolidated financial
statements of Gibraltar for the fiscal quarter ended June 30, 2011, furnished to the Administrative
Agent and the Lenders, are true and complete, have been prepared in accordance with GAAP, and
fairly present the financial condition of the Companies as of the dates of such financial
statements and the results of their operations for the periods then ending. Since the dates of
such statements, there has been no material adverse change in any Company’s financial condition,
properties or business or any change in any Company’s accounting procedures.


 


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Section 6.15. Regulations. No Company is engaged principally or as one of its
important activities, in the business of extending credit for the purpose of purchasing or carrying
any “margin stock” (within the meaning of Regulation U of the Board of Governors of the Federal
Reserve System of the United States of America). Neither the granting of any Loan (or any
conversion thereof) or Letter of Credit nor the use of the proceeds of any Loan or Letter of Credit
will violate, or be inconsistent with, the provisions of Regulation T, U or X or any other
Regulation of such Board of Governors.



Section 6.16. Material Agreements. Except as disclosed on Schedule 6.16
hereto, as of the Closing Date, no Company is a party to any (a) debt instrument (excluding the
Loan Documents); (b) lease (capital, operating or otherwise), whether as lessee or lessor
thereunder; (c) contract, commitment, agreement, or other arrangement involving the purchase or
sale of any inventory by it, or the license of any right to or by it; (d) contract, commitment,
agreement, or other arrangement with any of its “Affiliates” (as such term is defined in the
Exchange Act) other than a Company; (e) management or employment contract or contract for personal
services with any of its Affiliates that is not otherwise terminable at will or on less than ninety
(90) days’ notice without liability; (f) collective bargaining agreement; or (g) other contract,
agreement, understanding, or arrangement with a third party; that, as to subsections (a) through
(g), above, if violated, breached, or terminated for any reason, would have or would be reasonably
expected to have a Material Adverse Effect.



Section 6.17. Intellectual Property. Each Company owns, or has the right to use, all
of the material patents, patent applications, industrial designs, designs, trademarks, service
marks, copyrights and licenses, and rights with respect to the foregoing, necessary for the conduct
of its business without any known material conflict with the rights of others. Schedule
6.17 hereto sets forth all federally registered patents, trademarks, copyrights, service marks
and license agreements owned by each Company as of the Closing Date.



Section 6.18. Insurance. Each Company maintains with financially sound and reputable
insurers insurance with coverage and limits as required by law and as is customary with Persons
engaged in the same businesses as the Companies. Schedule 6.18 hereto sets forth all
insurance carried by the Companies on the Closing Date, setting forth in detail the amount and type
of such insurance.



Section 6.19. Deposit Accounts and Securities Accounts. The Administrative Borrower
has provided to the Administrative Agent a list of all banks, other financial institutions and
Securities Intermediaries at which any Credit Party maintains Deposit Accounts or Securities
Accounts as of the Closing Date, which list correctly identifies the name, address and telephone
number of each such financial institution or Securities Intermediary, the name in which the account
is held, a description of the purpose of the account, and the complete account number therefor.



Section 6.20. Accurate and Complete Statements. Neither the Loan Documents nor any
written statement made by any Company in connection with any of the Loan Documents contains any
untrue statement of a material fact or omits to state a material fact necessary to make the
statements contained therein or in the Loan Documents not misleading. After due
inquiry by the Borrowers, there is no known fact that any Company has not disclosed to the
Administrative Agent and the Lenders that has or is likely to have a Material Adverse Effect.


 


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Section 6.21. Investment Company; Other Restrictions. No Company is (a) 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) subject to any foreign, federal, state or local
statute or regulation limiting its ability to incur Indebtedness.



Section 6.22. Acquisition Agreement Representations. To the extent reasonably
necessary to preserve or protect the rights of the Administrative Agent and the Lenders in respect
of the Collateral, the Borrowers covenant and agree to enforce and pursue all remedies reasonably
available to it in connection with any breach of a representation and warranty made by Seller under
the Target Company Acquisition Agreements.



Section 6.23. Subordinated Indenture. (a) No “Default” or “Event of Default” (as
each term is defined in the Subordinated Indenture) exists, nor will any such Default or Event of
Default exist under the Subordinated Indenture (or note or other agreement executed in connection
therewith) immediately after the occurrence of any Credit Event; (b) Schedule 6.23 hereto
sets forth, as of the Closing Date, all of the “Credit Facilities” (as defined in the Subordinated
Indenture); (c) all of the Obligations constitute “Senior Indebtedness”, “Guarantor Senior
Indebtedness”, “Designated Senior Indebtedness”, and “Designated Guarantor Senior Indebtedness” (as
each term is defined in the Subordinated Indenture); and (d) except for the Secured Obligations, no
other Indebtedness of the Companies constitutes “Designated Senior Indebtedness” or “Designated
Guarantor Senior Indebtedness” (as each term is defined in the Subordinated Indenture).



Section 6.24. Defaults. No Default or Event of Default exists hereunder, nor will
any begin to exist immediately after the execution and delivery hereof.



ARTICLE VII. CASH MANAGEMENT AND COLLATERAL




Section 7.1. Cash Management System. The Borrowers shall establish and maintain,
until the payment in full of the Secured Obligations and the termination of the Commitment, the
cash management systems described below:



(a) Lockbox. On or before the Closing Date, the Credit Parties shall (i) establish
lockbox arrangements with the Administrative Agent, on behalf of the Lenders (one or more lockboxes
hereunder collectively referred to herein as the “Lockbox”), which shall be governed by the Master
Agreement, and, within ten days after the Closing Date, shall request in writing and otherwise take
such reasonable steps to ensure that all Account Debtors of the Credit Parties forward all
Collections directly to the Lockbox (if the Credit Parties neglect or refuse to notify any such
Account Debtor to remit all such Collections to the Lockbox, the Administrative Agent shall be
entitled to make such notification), (ii) hold in trust for the Administrative Agent, as fiduciary
for the Administrative Agent, all checks, cash and other items of payment received by the Credit
Parties, and (iii) not commingle any Collections with any other funds or property of
the Credit Parties, but will hold such funds separate and apart in trust and as fiduciary for the
Administrative Agent until deposit is made into the Concentration Account.


 


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(b) Concentration Account. On or before the Closing Date, the Credit Parties shall
have established a Concentration Account with the Administrative Agent, on behalf of the Lenders.
All moneys received by the Credit Parties, including Collections from sales of Inventory and
services rendered or from Account Debtors of the Credit Parties sent to the Lockbox, shall be
deposited directly on a daily basis, and in any event no later than the first Business Day after
the date of receipt thereof, into the Concentration Account in the identical form in which such
moneys were received and Collections were made (except for any necessary endorsements) whether by
cash or check. All amounts deposited in the Concentration Account from the Lockbox or any other
source shall be under the sole and exclusive control of the Administrative Agent. The Credit
Parties shall have no interest in or control over such funds; provided that, (i) during a Cash
Dominion Period, the Administrative Agent shall transfer funds from the Concentration Account to
the Cash Collateral Account on a daily basis, and (ii) other than during a Cash Dominion Period,
the Administrative Agent shall transfer funds from the Concentration Account to the Operating
Account on a daily basis, for use by the Credit Parties, in their sole discretion, for purposes not
prohibited by this Agreement. The Concentration Account shall not be subject to any deduction, set
off, banker’s lien or any other right in favor of any Person other than the Administrative Agent.



(c) Cash Collateral Account. On or before the Closing Date, the Credit Parties shall
have established a Cash Collateral Account with the Administrative Agent, on behalf of the Lenders.
All amounts deposited in the Cash Collateral Account from the Concentration Account or any other
source shall be under the sole and exclusive control of the Administrative Agent. The Credit
Parties shall have no interest in or control over such funds. The Cash Collateral Account shall
not be subject to any deduction, set off, banker’s lien or any other right in favor of any Person
other than the Administrative Agent.



(d) Operating Account. GSCNY, for the benefit of the Credit Parties, shall maintain,
in its name, an Operating Account with the Administrative Agent, into which the Administrative
Agent shall, (i) from time to time, deposit proceeds of the Revolving Loans made to the Borrowers
for use by the Companies in accordance with the provisions of Section 5.18 hereof, and (ii) other
than during a Cash Dominion Period, transfer funds from the Concentration Account on a daily basis
for use by the Companies in their sole discretion. Unless otherwise agreed by the Administrative
Agent and the Borrowers, any Revolving Loan requested by the Administrative Borrower and made under
this Agreement shall be deposited into the Operating Account. During a Cash Dominion Period, the
Credit Parties shall not accumulate or maintain cash in the Operating Account or payroll or other
such accounts, as of any date of determination, in excess of checks outstanding against the
Controlled Disbursement Account (or Controlled Disbursement Accounts) and other deposit accounts
approved by the Administrative Agent (such as medical benefit accounts, flexible spending accounts
and automated clearing house accounts) as of that date, and amounts necessary to meet minimum
balance requirements.


 


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(e) Controlled Disbursement Accounts. The Credit Parties shall maintain one or more
Controlled Disbursement Accounts with the Administrative Agent, on behalf of the
Lenders. The Borrowers shall base their requests for Revolving Loans on, among other things, the
daily balance of the Controlled Disbursement Account (or Controlled Disbursement Accounts). During
a Cash Dominion Period, the Credit Parties shall not, and shall not cause or permit any Company, to
maintain cash in any Controlled Disbursement Account, as of any date of determination, in excess of
checks outstanding against such account as of that date, and amounts necessary to meet minimum
balance requirements.



(f) Lockbox and Security Accounts. The Lockbox established pursuant to the Lockbox
agreement, the Concentration Account, the Cash Collateral Account, the Operating Account and the
Controlled Disbursement Accounts shall be Security Accounts, with all cash, checks and other
similar items of payment in such accounts securing payment of the Secured Obligations.



(g) Costs of Collection. All reasonable costs of collection of the Accounts of the
Credit Parties, including out-of-pocket expenses, administrative and record-keeping costs,
reasonable attorneys’ fees, and all service charges and costs related to the establishment and
maintenance of the Security Accounts shall be the sole responsibility of the Borrowers, whether the
same are incurred by the Administrative Agent or the Credit Parties. The Credit Parties each
hereby indemnify and hold the Administrative Agent harmless from and against any loss or damage
with respect to any deposits made in the Security Accounts that are dishonored or returned for any
reason. If any deposits are dishonored or returned unpaid for any reason, the Administrative
Agent, in its sole discretion, may charge the amount thereof against the Cash Collateral Account or
any other Security Account or other Deposit Account of the Credit Parties. The Administrative
Agent shall not be liable for any loss or damage resulting from any error, omission, failure or
negligence on the part of the Administrative Agent, except losses or damages resulting from the
Administrative Agent’s own gross negligence or willful misconduct, as determined by a final
judgment of a court of competent jurisdiction.



(h) Return of Funds. Upon the payment in full of the Secured Obligations (other than
continuing indemnification obligations) and the termination of the Commitment hereunder, (i) the
Administrative Agent’s security interests and other rights in funds in the Security Accounts shall
terminate, (ii) all rights to such funds shall revert to the Credit Parties, as applicable, and
(iii) the Administrative Agent will, at the Borrowers’ expense, take such steps as the
Administrative Borrower may reasonably request to evidence the termination of such security
interests and to effect the return to the Credit Parties of such funds.



(i) Attorney-in-Fact to Endorse Documents. The Administrative Agent, or the
Administrative Agent’s designated agent, is hereby constituted and appointed attorney-in-fact for
each Credit Party with authority and power to endorse after the occurrence and during the
continuance of an Event of Default, or during a Cash Dominion Period, any and all instruments,
documents, and chattel paper (consistent with this Agreement and the Master Agreement) upon the
failure of such Credit Party to do so. Such authority and power, being coupled with an interest,
shall be (i) irrevocable until all of the Secured Obligations are paid, (ii) exercisable by the
Administrative Agent at any time and without any request upon any Credit Party by the
Administrative Agent to so endorse, and (iii) exercisable in the name of the Administrative Agent
or any Credit Party. Each Credit Party hereby waives presentment, demand, notice of
dishonor, protest, notice of protest, and any and all other similar notices with respect thereto,
regardless of the form of any endorsement thereof. The Administrative Agent shall not be bound or
obligated to take any action to preserve any rights therein against prior parties thereto.


 


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(j) Cash Management at a Lender other than the Administrative Agent. Notwithstanding
anything in this Section 7.1 to the contrary, the Borrowers may establish a cash management system
with a Lender other than the Administrative Agent (an “Alternative Cash Management System”), so
long as (i) such Alternative Cash Management System is in substantially the same form as the cash
management system described in subparts (a) through (e) of this Section 7.1 and is otherwise in
form and substance acceptable to the Administrative Agent, and (ii) each Deposit Account
established as part of such Alternative Cash Management System shall be subject to a Deposit
Account Control Agreement (prepared by, and in form and substance satisfactory to, the
Administrative Agent) in favor of the Administrative Agent. If the Borrowers establish an
Alternative Cash Management System pursuant to this Section 7.1(j), the Administrative Agent, on
behalf of the other Lenders, the Lender providing such Alternative Cash Management Services and the
Borrowers may, without the consent of any other Lender, enter into an amendment to this Agreement
(a “Alternative Cash Management System Amendment”) to effect such amendments to this Agreement as
may be necessary or appropriate, in the reasonable opinion of the Administrative Agent, to effect
the provisions of this Section 7.1(j) and the transition of the cash management services from the
Administrative Agent to such other Lender. Each Lender hereby irrevocably authorizes the
Administrative Agent to execute and deliver an Alternative Cash Management System Amendment on
behalf of such Lender.



Section 7.2. Collections and Receipt of Proceeds by the Administrative Agent.
Each Credit Party hereby constitutes and appoints the Administrative Agent, or the Administrative
Agent’s designated agent, as such Borrower’s attorney-in-fact to exercise, at any time, all or any
of the following powers which, being coupled with an interest, shall be irrevocable until the
complete and full payment of all of the Secured Obligations:



(a) to receive, retain, acquire, take, endorse, assign, deliver, accept, and deposit, in the
name of the Administrative Agent or such Credit Party (consistent with this Agreement and the
Master Agreement), any and all of such Credit Party’s cash, instruments, chattel paper, documents,
Proceeds of Accounts, Proceeds of Inventory, collection of Accounts, and any other writings
relating to any of the Collateral. Each Credit Party hereby waives presentment, demand, notice of
dishonor, protest, notice of protest, and any and all other similar notices with respect thereto,
regardless of the form of any endorsement thereof. The Administrative Agent shall not be bound or
obligated to take any action to preserve any rights therein against prior parties thereto;



(b) to transmit to Account Debtors, on any or all of such Credit Party’s Accounts, after the
occurrence of an Event of Default, notice of assignment to the Administrative Agent, for the
benefit of the Lenders, thereof and the security interest therein, and to request from such Account
Debtors at any time, in the name of the Administrative Agent or such Credit Party, information
concerning such Borrower’s Accounts and the amounts owing thereon;


 


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(c) after the occurrence of an Event of Default, to transmit to purchasers of any or all of
such Credit Party’s Inventory, notice of the Administrative Agent’s security interest therein, and
to request from such purchasers at any time, in the name of the Administrative Agent or such Credit
Party, information concerning such Credit Party’s Inventory and the amounts owing thereon by such
purchasers;



(d) after the occurrence of an Event of Default, to notify and require Account Debtors on such
Credit Party’s Accounts and purchasers of such Credit Party’s Inventory to make payment of their
indebtedness directly to the Administrative Agent;



(e) after the occurrence of an Event of Default, to enter into or assent to such amendment,
compromise, extension, release or other modification of any kind of, or substitution for, the
Accounts, or any thereof, as the Administrative Agent, in its sole discretion, may deem to be
advisable;



(f) after the occurrence of an Event of Default, to enforce the Accounts or any thereof, or
any other Collateral, by suit or otherwise, to maintain any such suit or other proceeding in the
name of the Administrative Agent or one or more Credit Parties, and to withdraw any such suit or
other proceeding. The Credit Parties agree to lend every assistance requested by the
Administrative Agent in respect of the foregoing, all at no cost or expense to the Administrative
Agent and including, without limitation, the furnishing of such witnesses and of such records and
other writings as the Administrative Agent may require in connection with making legal proof of any
Account. The Credit Parties agree to reimburse the Administrative Agent in full for all court
costs and attorneys’ fees and every other cost, expense or liability, if any, incurred or paid by
the Administrative Agent in connection with the foregoing, which obligation of the Credit Parties
shall constitute Obligations, shall be secured by the Collateral and shall bear interest, until
paid, at the Default Rate;



(g) to take or bring, in the name of the Administrative Agent or such Credit Party, all steps,
actions, suits, or proceedings deemed by the Administrative Agent necessary or desirable to effect
the receipt, enforcement, and collection of the Collateral; and



(h) to accept all collections in any form relating to the Collateral, including remittances
that may reflect deductions, and to deposit the same into such Credit Party’s Cash Collateral
Account or, at the option of the Administrative Agent, to apply them as a payment against the Loans
or any other Secured Obligations in accordance with this Agreement.



Section 7.3. Administrative Agent’s Authority Under Pledged Notes. For the better
protection of the Administrative Agent and the Lenders hereunder, each Credit Party, as
appropriate, has executed (or will execute, with respect to future Pledged Notes) an appropriate
endorsement on (or separate from) each Pledged Note and has deposited (or will deposit, with
respect to future Pledged Notes) such Pledged Note with the Administrative Agent, for the benefit
of the Lenders. Such Credit Party irrevocably authorizes and empowers the Administrative Agent,
for the benefit of the Lenders, to, following the occurrence and during the continuation of an
Event of Default, (a) ask for, demand, collect and receive all payments of principal of and
interest on the Pledged Notes;

 


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(b) compromise
and settle any dispute arising in respect of the foregoing; (c) execute and deliver vouchers, receipts and acquittances in full
discharge of the foregoing; (d) exercise, in the Administrative Agent’s discretion, any right,
power or privilege granted to the holder of any Pledged Note by the provisions thereof including,
without limitation, the right to demand security or to waive any default thereunder; (e) endorse
such Credit Party’s name to each check or other writing received by the Administrative Agent as a
payment or other proceeds of or otherwise in connection with any Pledged Note; (f) enforce delivery
and payment of the principal and/or interest on the Pledged Notes, in each case by suit or
otherwise as the Administrative Agent may desire; and (g) enforce the security, if any, for the
Pledged Notes by instituting foreclosure proceedings, by conducting public or other sales or
otherwise, and to take all other steps as the Administrative Agent, in its discretion, may deem
advisable in connection with the forgoing; provided, however, that nothing contained or implied
herein or elsewhere shall obligate the Administrative Agent to institute any action, suit or
proceeding or to make or do any other act or thing contemplated by this Section 7.3 or prohibit the
Administrative Agent from settling, withdrawing or dismissing any action, suit or proceeding or
require the Administrative Agent to preserve any other right of any kind in respect of the Pledged
Notes and the security, if any, therefor.



Section 7.4. Commercial Tort Claims. If any Credit Party shall at any time hold or
acquire a Commercial Tort Claim, such Credit Party shall promptly notify the Administrative Agent
thereof in a writing signed by such Credit Party, that sets forth the details thereof and grants to
the Administrative Agent (for the benefit of the Lenders) a Lien thereon and on the Proceeds
thereof, all upon the terms of this Agreement, with such writing to be prepared by and in form and
substance reasonably satisfactory to the Administrative Agent.



ARTICLE VIII. EVENTS OF DEFAULT




Any of the following specified events shall constitute an Event of Default (each an “Event of
Default”):



Section 8.1. Payments. If (a) the interest on any Loan, any commitment or other fee,
or any other Obligation not listed in subpart (b) hereof, shall not be paid in full when due and
payable or within five Business Days thereafter, or (b) the principal of any Loan or any
reimbursement obligation under any Letter of Credit that has been drawn shall not be paid in full
when due and payable.



Section 8.2. Special Covenants. If any Company shall fail or omit to perform and
observe Section 5.3, 5.7, 5.8, 5.9, 5.11, 5.12, 5.13, 5.15, 5.21(a) or (b), 5.26, 5.27, 5.28, 5.29
or 5.30 hereof.



Section 8.3. Other Covenants. If any Company shall fail or omit to perform and
observe any agreement or other provision (other than those referred to in Section 8.1 or 8.2
hereof) contained or referred to in this Agreement or any Related Writing that is on such Company’s
part to be complied with, and that Default shall not have been fully corrected within thirty (30)
days after the earlier of (a) any Financial Officer of such Company becomes aware of the occurrence
thereof, or (b) the giving of written notice thereof to the Administrative Borrower by the
Administrative Agent or the Required Lenders that the specified Default is to be remedied.


 


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Section 8.4. Representations and Warranties. If any representation, warranty or
statement made in or pursuant to this Agreement or any Related Writing or any other material
information furnished by any Company to the Administrative Agent or the Lenders, or any thereof,
shall be false or erroneous in any material respect.



Section 8.5. Cross Default. If any Company shall default in the payment of principal
or interest due and owing under any Material Indebtedness Agreement beyond any period of grace
provided with respect thereto or in the performance or observance of any other agreement, term or
condition contained in any agreement under which such obligation is created, if the effect of such
default is to allow the acceleration of the maturity of such Indebtedness or to permit the holder
thereof to cause such Indebtedness to become due prior to its stated maturity.



Section 8.6. Subordinated Indenture. If (a) any “Event of Default” (as defined in
the Subordinated Indenture) shall occur under any Subordinated Indenture; (b) the Obligations shall
cease to be any of the following: “Senior Indebtedness”, “Guarantor Senior Indebtedness”,
“Designated Senior Indebtedness”, and “Designated Guarantor Senior Indebtedness” under the
Subordinated Indenture; (c) any Indebtedness other than the Obligations is designated as
“Designated Senior Indebtedness” or “Designated Guarantor Senior Indebtedness” (as each term is
defined in the Subordinated Indenture); or (d) any Indebtedness other than the Obligations is
classified by Gibraltar as Indebtedness incurred pursuant to clause (l) of the second paragraph of
Section 3.2 of the Subordinated Indenture.



Section 8.7. ERISA Default. The occurrence of one or more ERISA Events that (a) the
Required Lenders determine could reasonably be expected to have a Material Adverse Effect, or (b)
results in a Lien on any of the assets of any Company.




Section 8.8. Change in Control. If any Change in Control shall occur.




Section 8.9. Judgments. There is entered against any Company:



(a) a final judgment or order for the payment of money by a court of competent jurisdiction,
that remains unpaid or unstayed and undischarged for a period (during which execution shall not be
effectively stayed) of thirty (30) days after the date on which the right to appeal has expired,
provided that such occurrence shall constitute an Event of Default only if the aggregate of all
such judgments for all such Companies, shall exceed the lesser of (i) the Revolving Credit
Availability or (ii) Twenty-Five Million Dollars ($25,000,000) (less any amount that will be
covered by the proceeds of insurance and is not subject to dispute by the insurance provider);



(b) one or more judgments, orders or decrees shall be entered against any Company involving a
required divestiture or any material properties, assets or business reasonably estimated to have a
fair value in excess of Ten Million Dollars ($10,000,000), and any such judgments, orders or
decrees shall not have been vacated, discharged or stayed or bonded
pending appeal within thirty (30) days (or such longer period, not in excess of sixty (60) days,
during which enforcement thereof, and the filing of any judgment lien, is effectively stayed or
prohibited) from the entry thereof; or


 


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(c) any one or more non-monetary final judgments that are not covered by insurance, or, if
covered by insurance, for which the insurance company has not agreed to or acknowledged coverage,
and that, in either case, the Required Lenders reasonably determine have, or could be expected to
have, individually or in the aggregate, a Material Adverse Effect and, in either case, (i)
enforcement proceedings are commenced by the prevailing party or any creditor upon such judgment or
order, or (ii) there is a period of three consecutive Business Days during which a stay of
enforcement of such judgment, by reason of a pending appeal or otherwise, is not in effect.



Section 8.10. Security. If any Lien granted in this Agreement or any other Loan
Document in favor of the Administrative Agent, for the benefit of the Lenders, shall be determined
to be (a) void, voidable or invalid, or is subordinated or not otherwise given the priority
contemplated by this Agreement and the Borrowers have (or the appropriate Credit Party has) failed
to promptly execute appropriate documents to correct such matters, or (b) unperfected as to any
material amount of Collateral (as determined by the Administrative Agent, in its reasonable
discretion) and the Borrowers have (or the appropriate Credit Party has) failed to promptly execute
appropriate documents to correct such matters.



Section 8.11. Validity of Loan Documents. If (a) any material provision, in the sole
opinion of the Administrative Agent, of any Loan Document shall at any time cease to be valid,
binding and enforceable against any Credit Party; (b) the validity, binding effect or
enforceability of any Loan Document against any Credit Party shall be contested by any Credit
Party; (c) any Credit Party shall deny that it has any or further liability or obligation under any
Loan Document; or (d) any Loan Document shall be terminated, invalidated or set aside, or be
declared ineffective or inoperative or in any way cease to give or provide to the Administrative
Agent and the Lenders the benefits purported to be created thereby.



Section 8.12. Solvency. If any Company (other than a Non-Material Subsidiary) shall
(a) except as permitted pursuant to Section 5.5 or 5.12 hereof, discontinue business; (b) generally
not pay its debts as such debts become due; (c) make a general assignment for the benefit of
creditors; (d) apply for or consent to the appointment of an interim receiver, a receiver, a
receiver and manager, an administrator, sequestrator, monitor, a custodian, a trustee, an interim
trustee, liquidator, agent or other similar official of all or a substantial part of its assets or
of such Company; (e) be adjudicated a debtor or insolvent or have entered against it an order for
relief under the Bankruptcy Code, or under any other bankruptcy insolvency, liquidation,
winding-up, corporate or similar statute or law, foreign, federal, state or provincial, in any
applicable jurisdiction, now or hereafter existing, as any of the foregoing may be amended from
time to time, or other applicable statute for jurisdictions outside of the United States, as the
case may be; (f) file a voluntary petition under the Bankruptcy Code or seek relief under any
bankruptcy or insolvency or analogous law in any jurisdiction outside of the United States, or file
a proposal or notice of intention to file such petition; (g) have an involuntary proceeding under
the Bankruptcy Code or any bankruptcy or insolvency or analogous law in any jurisdiction outside of
the United


 


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States filed against it and the same shall not be controverted within ten days, or shall continue
undismissed for a period of sixty (60) days from commencement of such proceeding or case; (h) file
a petition, an answer, an application or a proposal seeking reorganization or an arrangement with
creditors or seeking to take advantage of any other law (whether federal, provincial or state, or,
if applicable, other jurisdiction) relating to relief of debtors, or admit (by answer, by default
or otherwise) the material allegations of a petition filed against it in any bankruptcy,
reorganization, insolvency or other proceeding (whether federal, provincial or state, or, if
applicable, other jurisdiction) relating to relief of debtors; (i) suffer or permit to continue
unstayed and in effect for sixty (60) consecutive days any judgment, decree or order entered by a
court of competent jurisdiction, that approves a petition or an application or a proposal seeking
its reorganization or appoints an interim receiver, a receiver and manager, an administrator,
custodian, trustee, interim trustee or liquidator of all or a substantial part of its assets, or of
such Company; (j) have an administrative receiver appointed over the whole or substantially the
whole of its assets, or of such Company; (k) have assets, the value of which is less than its
liabilities (taking into account prospective and contingent liabilities, and rights of contribution
from other Persons); or (l) have a moratorium declared in respect of any of its Indebtedness, or
any analogous procedure or step is taken in any jurisdiction.



ARTICLE IX. REMEDIES UPON DEFAULT





Notwithstanding any contrary provision or inference herein or elsewhere:



Section 9.1. Optional Defaults. If any Event of Default referred to in Section 8.1,
8.2, 8.3, 8.4, 8.5, 8.6, 8.7, 8.8, 8.9, 8.10, or 8.11 hereof shall occur, the Administrative Agent
may, with the consent of the Required Lenders, and shall, at the written request of the Required
Lenders, give written notice to the Borrowers to:



(a) terminate the Commitment, if not previously terminated, and, immediately upon such
election, the obligations of the Lenders, and each thereof, to make any further Loan, and the
obligation of the Fronting Lenders to issue any Letter of Credit, immediately shall be terminated;
and/or



(b) accelerate the maturity of all of the Obligations (if the Obligations are not already due
and payable), whereupon all of the Obligations shall become and thereafter be immediately due and
payable in full without any presentment or demand and without any further or other notice of any
kind, all of which are hereby waived by each Borrower.



Section 9.2. Automatic Defaults. If any Event of Default referred to in Section 8.12
hereof shall occur:



(a) all of the Commitment shall automatically and immediately terminate, if not previously
terminated, and no Lender thereafter shall be under any obligation to grant any further Loan, nor
shall the Fronting Lenders be obligated to issue any Letter of Credit; and


 


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(b) the principal of and interest then outstanding on all of the Loans, and all of the other
Obligations, shall thereupon become and thereafter be immediately due and payable in full (if the
Obligations are not already due and payable), all without any presentment, demand or notice of any
kind, which are hereby waived by each Borrower.



Section 9.3. Letters of Credit. If the maturity of the Obligations shall be
accelerated pursuant to Section 9.1 or 9.2 hereof, the Borrowers shall immediately deposit with the
Administrative Agent, as security for the obligations of the Borrowers and any Guarantor of Payment
to reimburse the Administrative Agent and the Revolving Lenders for any then outstanding Letters of
Credit, cash equal to one hundred five percent (105%) of the sum of the aggregate undrawn balance
of any then outstanding Letters of Credit. The Administrative Agent and the Lenders are hereby
authorized, at their option, to deduct any and all such amounts from any deposit balances then
owing by any Lender (or any affiliate of such Lender, wherever located) to or for the credit or
account of any Company, as security for the obligations of the Borrowers and any Guarantor of
Payment to reimburse the Administrative Agent and the Revolving Lenders for any then outstanding
Letters of Credit.



Section 9.4. Offsets. If there shall occur or exist any Event of Default referred to
in Section 8.12 hereof or if the maturity of the Obligations is accelerated pursuant to Section 9.1
or 9.2 hereof, each Lender shall have the right at any time to set off against, and to appropriate
and apply toward the payment of, any and all of the Obligations (other than Obligations under the
Alabama Metal Guaranty, the Diamond Perforated Guaranty and the Noll/Norwesco Guaranty) then owing
by the Borrowers or a Guarantor of Payment to such Lender (including, without limitation, any
participation purchased or to be purchased pursuant to Section 2.2(b), 2.2(c) or 9.5 hereof),
whether or not the same shall then have matured, any and all deposit (general or special) balances
and all other indebtedness then held or owing by such Lender (including, without limitation, by
branches and agencies or any affiliate of such Lender, wherever located) to or for the credit or
account of any Borrower or Guarantor of Payment, all without notice to or demand upon any Borrower
or any other Person, all such notices and demands being hereby expressly waived by each Borrower.




Section 9.5. Equalization Provisions.



(a) Equalization Within Commitments Prior to an Equalization Event. Each Revolving
Lender agrees with the other Revolving Lenders that, if it at any time shall obtain any Advantage
over the other Revolving Lenders, or any thereof, in respect of the Applicable Debt (except as to
Swing Loans and Letters of Credit prior to the Administrative Agent’s giving of notice to
participate and amounts under Article III hereof), such Revolving Lender, upon written request of
the Administrative Agent, shall purchase from the other Revolving Lenders, for cash and at par,
such additional participation in the Applicable Debt as shall be necessary to nullify the
Advantage. Each Term Lender agrees with the other Term Lenders that, if it at any time shall
obtain any Advantage over the other Term Lenders, or any thereof, in respect of the Applicable Debt
(except as to amounts under Article III hereof), such Term Lender shall purchase from the other
Term Lenders, for cash and at par, such additional participation in the Applicable Debt as shall be
necessary to nullify the Advantage.


 


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(b) Equalization Between Commitments After an Equalization Event. After the
occurrence of an Equalization Event, each Lender agrees with the other Lenders that, if such Lender
at any time shall obtain any Advantage over the other Lenders or any thereof determined in respect
of the Obligations (including Swing Loans and Letters of Credit but excluding amounts under Article
III hereof) then outstanding, such Lender shall purchase from the other Lenders, for cash and at
par, such additional participation in the Obligations as shall be necessary to nullify the
Advantage in respect of the Obligations. For purposes of determining whether or not, after the
occurrence of an Equalization Event, an Advantage in respect of the Obligations shall exist, the
Administrative Agent shall, as of the date that the Equalization Event occurs:




(i) add the Revolving Credit Exposure and the Term Loan Exposure to determine the
equalization maximum amount (the “Equalization Maximum Amount”); and




(ii) determine an equalization percentage (the “Equalization Percentage”) for each
Lender by dividing the aggregate amount of its Lender Credit Exposure by the Equalization
Maximum Amount.



After the date of an Equalization Event, the Administrative Agent shall determine whether an
Advantage exists among the Lenders by using the Equalization Percentage. Such determination shall
be conclusive absent manifest error.



(c) Recovery of Amount. If any such Advantage resulting in the purchase of an
additional participation as set forth in subsection (a) or (b) hereof shall be recovered in whole
or in part from the Lender receiving the Advantage, each such purchase shall be rescinded, and the
purchase price restored (but without interest unless the Lender receiving the Advantage is required
to pay interest on the Advantage to the Person recovering the Advantage from such Lender) ratably
to the extent of the recovery.



(d) Application and Sharing of Set-Off Amounts. Each Lender further agrees with the
other Lenders that, if it at any time shall receive any payment for or on behalf of a Borrower on
any Indebtedness owing by such Borrower to that Lender (whether by voluntary payment, by
realization upon security, by reason of offset of any deposit or other Indebtedness, by
counterclaim or cross action, by enforcement of any right under any Loan Document, or otherwise),
it shall apply such payment first to any and all Indebtedness owing by such Borrower to that Lender
pursuant to this Agreement (including, without limitation, any participation purchased or to be
purchased pursuant to this Section 9.5 or any other section of this Agreement). Each Credit Party
agrees that any Lender so purchasing a participation from the other Lenders, or any thereof,
pursuant to this Section 9.5 may exercise all of its rights of payment (including the right of
set-off) with respect to such participation as fully as if such Lender were a direct creditor of
such Credit Party in the amount of such participation.


 


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Section 9.6. Collateral. The Administrative Agent and the Lenders shall at all times
have the rights and remedies of a secured party under the U.C.C., in addition to the rights and
remedies of a secured party provided elsewhere within this Agreement, in any other Related Writing
executed by any Borrower or otherwise provided in law or equity. Upon the occurrence
of an Event of Default and at all times thereafter, the Administrative Agent may require the
Borrowers to assemble the Collateral, which each Borrower agrees to do, and make it available to
the Administrative Agent and the Lenders at a reasonably convenient place to be designated by the
Administrative Agent. The Administrative Agent may, with or without notice to or demand upon such
Borrower and with or without the aid of legal process, make use of such force as may be necessary
to enter any premises where the Collateral, or any thereof, may be found and to take possession
thereof (including anything found in or on the Collateral that is not specifically described in
this Agreement, each of which findings shall be considered to be an accession to and a part of the
Collateral) and for that purpose may pursue the Collateral wherever the same may be found, without
liability for trespass or damage caused thereby to such Borrower. After any delivery or taking of
possession of the Collateral, or any thereof, pursuant to this Agreement, then, with or without
resort to any Borrower personally or any other Person or property, all of which each Borrower
hereby waives, and upon such terms and in such manner as the Administrative Agent may deem
advisable, the Administrative Agent, in its discretion, may sell, assign, transfer and deliver any
of the Collateral at any time, or from time to time. No prior notice need be given to any Borrower
or to any other Person in the case of any sale of Collateral that the Administrative Agent
determines to be perishable or to be declining speedily in value or that is customarily sold in any
recognized market, but in any other case the Administrative Agent shall give the Borrowers not
fewer than ten days prior notice of either the time and place of any public sale of the Collateral
or of the time after which any private sale or other intended disposition thereof is to be made.
Each Borrower waives advertisement of any such sale and (except to the extent specifically required
by the preceding sentence) waives notice of any kind in respect of any such sale. At any such
public sale, the Administrative Agent or the Lenders may purchase the Collateral, or any part
thereof, free from any right of redemption, all of which rights each Borrower hereby waives and
releases. After deducting all Related Expenses, and after paying all claims, if any, secured by
Liens having precedence over this Agreement, the Administrative Agent may apply the net proceeds of
each such sale to or toward the payment of the Secured Obligations, whether or not then due, in
such order and by such division as the Administrative Agent, in its sole discretion, may deem
advisable. Any excess, to the extent permitted by law, shall be paid to the Borrowers, and each
Borrower shall remain liable for any deficiency. In addition, the Administrative Agent shall at
all times have the right to obtain new appraisals of any Borrower or the Collateral, the cost of
which shall be paid by the Borrowers.



Section 9.7. Administrative Agent’s Rights to Occupy and Use Property of Credit
Parties.



(a) After the occurrence and during the continuance of an Event of Default and as part of an
exercise of remedies by the Administrative Agent under the Loan Documents, the Administrative Agent
shall have the right to enter upon and into, and take possession of, all or such part or parts of
the properties of the Credit Parties, including lands, plants, buildings, Equipment, Inventory and
other property as may be necessary or appropriate, in the reasonable judgment of the Administrative
Agent, to permit or enable the Administrative Agent, or the Administrative Agent’s designee, to
manufacture, produce, process, store or sell or complete the manufacture, production, processing,
storing or sale of all or any part of the Collateral, as the Administrative Agent may elect, and to
use and operate said properties for said purposes and for
such length of time as the Administrative Agent may deem necessary or appropriate for such purposes
without the payment of any compensation to any Credit Party therefor.


 


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(b) The Administrative Agent is hereby granted a license or other right to use, without
charge, after the occurrence and during the continuance of an Event of Default and as part of an
exercise of remedies by the Administrative Agent under the Loan Documents, all of each Credit
Party’s property, including, without limitation, all of such Credit Party’s labels, trademarks,
copyrights, patents and advertising matter, or any property of a similar nature, as it pertains to
the Collateral, in completing production of, advertising for sale and selling any Collateral, and
such Credit Party’s rights under all licenses and all franchise agreements shall inure to the
Administrative Agent’s benefit until the Secured Obligations are paid in full.



Section 9.8. Other Remedies. The remedies in this Article IX are in addition to, not
in limitation of, any other right, power, privilege, or remedy, either in law, in equity, or
otherwise, to which the Lenders may be entitled. The Administrative Agent shall exercise the
rights under this Article IX and all other collection efforts on behalf of the Lenders and no
Lender shall act independently with respect thereto, except as otherwise specifically set forth in
this Agreement.




Section 9.9. Application of Proceeds.



(a) Payments Prior to Exercise of Remedies. Prior to the exercise by the
Administrative Agent, on behalf of the Lenders, of remedies under this Agreement or the other Loan
Documents, all monies received by the Administrative Agent shall be applied, unless otherwise
required by the terms of the other Loan Documents or by applicable law, as follows (provided that
the Administrative Agent shall have the right at all times to apply any payment received from the
Borrowers first to the payment of all obligations (to the extent not paid by the Borrowers)
incurred by the Administrative Agent pursuant to Section 12.5 hereof and to the payment of Related
Expenses):




(i) with respect to payments received in connection with the Revolving Credit
Commitment, to the Revolving Lenders; and




(ii) with respect to payments received in connection with the Term Loan, to the Term
Lenders.



(b) Payments Subsequent to Exercise of Remedies. After the exercise by the
Administrative Agent or the Required Lenders of remedies under this Agreement or the other Loan
Documents, all monies received by the Administrative Agent shall be applied, unless otherwise
required by the terms of the other Loan Documents or by applicable law, as follows:




(i) first, to the payment of all obligations (to the extent not paid by the Borrowers)
incurred by the Administrative Agent pursuant to Section 12.5 hereof and to the payment of
Related Expenses;




(ii) second, to the payment pro rata of (A) interest then accrued and payable on the
outstanding Loans, (B) any fees then accrued and payable to the Administrative
Agent, and (C) any fees then accrued and payable to any Fronting Lender or the holders of
the Letter of Credit Commitment in respect of the Letter of Credit Exposure;


 


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(iii) third, for payment of principal outstanding on the Loans and the Letter of Credit
Exposure, on a pro rata basis to the Lenders, based upon each such Lender’s Overall
Commitment Percentage, provided that the amounts payable in respect of the Letter of Credit
Exposure shall be held and applied by the Administrative Agent as security for the
reimbursement obligations in respect thereof, and, if any Letter of Credit shall expire
without being drawn, then the amount with respect to such Letter of Credit shall be
distributed to the Lenders, on a pro rata basis in accordance with this subsection (iii);




(iv) fourth, for payment of (A) the Indebtedness under any Designated Hedge Agreement
with a Lender (or an entity that is an affiliate of a then existing Lender), such amount to
be based upon the net termination obligation of the Borrowers under such Designated Hedge
Agreement (subject to confirmation by the Administrative Agent of any calculation of
termination or other payment amounts being made in accordance with normal industry
practice), and (B) the Bank Product Obligations owing to a Lender (or an entity that is an
affiliate of a then existing Lender) under Bank Product Agreements; with such payment to be
pro rata among (A) and (B) of this subsection (iv); and




(v) finally, any remaining surplus after all of the Secured Obligations have been paid
in full, to the Administrative Borrower for distribution to the appropriate Borrowers, or to
whomsoever shall be lawfully entitled thereto.



ARTICLE X. THE ADMINISTRATIVE AGENT




The Lenders authorize KeyBank and KeyBank hereby agrees to act as agent for the Lenders in
respect of this Agreement upon the terms and conditions set forth elsewhere in this Agreement, and
upon the following terms and conditions:



Section 10.1. Appointment and Authorization. Each Lender hereby irrevocably appoints
and authorizes the Administrative Agent to take such action as agent on its behalf and to exercise
such powers hereunder as are delegated to the Administrative Agent by the terms hereof, together
with such powers as are reasonably incidental thereto. Neither the Administrative Agent nor any of
its affiliates, directors, officers, attorneys or employees shall (a) be liable for any action
taken or omitted to be taken by it or them hereunder or in connection herewith, except for its or
their own gross negligence or willful misconduct (as determined by a final judgment of a court of
competent jurisdiction), or be responsible in any manner to any of the Lenders for the
effectiveness, enforceability, genuineness, validity or due execution of this Agreement or any
other Loan Documents, (b) be under any obligation to any Lender to ascertain or to inquire as to
the performance or observance of any of the terms, covenants or conditions hereof or thereof on the
part of the Borrowers or any other Company, or the financial condition of the Borrowers or any
other Company, or (c) be liable to any of the Companies for consequential damages resulting from
any breach of contract, tort or other wrong in connection with the negotiation,


 


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documentation, administration or collection of the Loans or Letters of Credit or any of the Loan
Documents. Notwithstanding any provision to the contrary contained in this Agreement or in any
other Loan Document, the Administrative Agent shall not have any duty or responsibility except
those expressly set forth herein, nor shall the Administrative Agent have or be deemed to have any
fiduciary relationship with any Lender or participant, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into this Agreement or any other
Loan Document or otherwise exist against the Administrative Agent. Without limiting the generality
of the foregoing sentence, the use of the term “agent” herein and in other Loan Documents with
reference to the Administrative Agent is not intended to connote any fiduciary or other implied (or
express) obligations arising under agency doctrine of any applicable law. Instead, such term is
used merely as a matter of market custom, and is intended to create or reflect only an
administrative relationship between independent contracting parties.



Section 10.2. Note Holders. The Administrative Agent may treat the payee of any Note
as the holder thereof (or, if there is no Note, the holder of the interest as reflected on the
books and records of the Administrative Agent) until written notice of transfer shall have been
filed with the Administrative Agent, signed by such payee and in form satisfactory to the
Administrative Agent.



Section 10.3. Consultation With Counsel. The Administrative Agent may consult with
legal counsel selected by the Administrative Agent and shall not be liable for any action taken or
suffered in good faith by the Administrative Agent in accordance with the opinion of such counsel.



Section 10.4. Documents. The Administrative Agent shall not be under any duty to
examine into or pass upon the validity, effectiveness, genuineness or value of any Loan Document or
any other Related Writing furnished pursuant hereto or in connection herewith or the value of any
collateral obtained hereunder, and the Administrative Agent shall be entitled to assume that the
same are valid, effective and genuine and what they purport to be.



Section 10.5. Administrative Agent and Affiliates. KeyBank and its affiliates may
make loans to, issue letters of credit for the account of, accept deposits from, acquire equity
interests in and generally engage in any kind of banking, trust, financial advisory, underwriting
or other business with the Companies and Affiliates as though KeyBank were not the Administrative
Agent hereunder and without notice to or consent of any Lender. Each Lender acknowledges that,
pursuant to such activities, KeyBank or its affiliates may receive information regarding any
Company or any Affiliate (including information that may be subject to confidentiality obligations
in favor of such Company or such Affiliate) and acknowledge that the Administrative Agent shall be
under no obligation to provide such information to other Lenders. With respect to Loans and
Letters of Credit (if any), KeyBank and its affiliates shall have the same rights and powers under
this Agreement as any other Lender and may exercise the same as though KeyBank were not the
Administrative Agent, and the terms “Lender” and “Lenders” include KeyBank and its affiliates, to
the extent applicable, in their individual capacities.


 


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Section 10.6. Knowledge or 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 unless
the Administrative Agent has received written notice from a Lender or the Administrative Borrower
referring to this Agreement, describing such Default or Event of Default and stating that such
notice is a “notice of default”. In the event that the Administrative Agent receives such a
notice, the Administrative Agent shall give 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 (or, if so specified by this Agreement, all Lenders);
provided that, unless and until the Administrative Agent shall have received such directions, the
Administrative Agent may (but shall not be obligated to) take such action, or refrain from taking
such action, with respect to such Default or Event of Default as it shall deem advisable, in its
discretion, for the protection of the interests of the Lenders.



Section 10.7. Action by Administrative Agent. Subject to the other terms and
conditions hereof, so long as the Administrative Agent shall be entitled, pursuant to Section 10.6
hereof, to assume that no Default or Event of Default shall have occurred and be continuing, the
Administrative Agent shall be entitled to use its discretion with respect to exercising or
refraining from exercising any rights that may be vested in it by, or with respect to taking or
refraining from taking any action or actions that it may be able to take under or in respect of,
this Agreement. The Administrative Agent shall incur no liability under or in respect of this
Agreement by acting upon any notice, certificate, warranty or other paper or instrument believed by
it to be genuine or authentic or to be signed by the proper party or parties, or with respect to
anything that it may do or refrain from doing in the reasonable exercise of its judgment, or that
may seem to it to be necessary or desirable in the premises. Without limiting the foregoing, no
Lender shall have any right of action whatsoever against the Administrative Agent as a result of
the Administrative Agent’s acting or refraining from acting hereunder in accordance with the
instructions of the Required Lenders.



Section 10.8. Release of Collateral or Guarantor of Payment. In the event of a
transfer of assets permitted by Section 5.12 hereof (or otherwise permitted pursuant to this
Agreement) where the proceeds of such transfer are applied in accordance with the terms of this
Agreement to the extent required to be so applied, or in the event of a merger, consolidation,
dissolution or similar event permitted pursuant to this Agreement, the Administrative Agent, at the
request and expense of the Borrowers, is hereby authorized by the Lenders to (a) release the
relevant Collateral from this Agreement or any other Loan Document, (b) release a Guarantor of
Payment in connection with such permitted transfer or event, and (c) duly assign, transfer and
deliver to the affected Person (without recourse and without any representation or warranty) such
Collateral as is then (or has been) so transferred or released and as may be in possession of the
Administrative Agent and has not theretofore been released pursuant to this Agreement.



Section 10.9. Delegation of Duties. The Administrative Agent may execute any of its
duties under this Agreement or any other Loan Document by or through agents, employees or
attorneys-in-fact and shall be entitled to advice of counsel and other consultants or experts
concerning all matters pertaining to such duties. The Administrative Agent shall not be
responsible for the negligence or misconduct of any agent or attorney-in-fact that it selects in
the absence of gross negligence or willful misconduct, as determined by a final judgment of a court
of competent jurisdiction.


 


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Section 10.10. Indemnification of Administrative Agent. The Lenders agree to
indemnify the Administrative Agent (to the extent not reimbursed by the Borrowers) ratably,
according to their respective Overall Commitment Percentages, from and against any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses
(including attorneys’ fees and expenses) or disbursements of any kind or nature whatsoever that may
be imposed on, incurred by or asserted against the Administrative Agent in its capacity as agent in
any way relating to or arising out of this Agreement or any other Loan Document or any action taken
or omitted by the Administrative Agent with respect to this Agreement or any other Loan Document,
provided that no Lender shall be liable for any portion of such liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses (including attorneys’ fees and
expenses) or disbursements resulting from the Administrative Agent’s gross negligence or willful
misconduct as determined by a final judgment of a court of competent jurisdiction, or from any
action taken or omitted by the Administrative Agent in any capacity other than as agent under this
Agreement or any other Loan Document. No action taken in accordance with the directions of the
Required Lenders shall be deemed to constitute gross negligence or willful misconduct for purposes
of this Section 10.10. The undertaking in this Section 10.10 shall survive repayment of the Loans,
cancellation of the Notes, if any, expiration or termination of the Letters of Credit, termination
of the Commitment, any foreclosure under, or modification, release or discharge of, any or all of
the Loan Documents, termination of this Agreement and the resignation or replacement of the agent.



Section 10.11. Successor Agent. The Administrative Agent may resign as agent
hereunder by giving not fewer than thirty (30) days prior written notice to the Administrative
Borrower and the Lenders. If the Administrative Agent shall resign under this Agreement, then
either (a) the Required Lenders shall appoint from among the Lenders a successor agent for the
Lenders (with the consent of the Administrative Borrower so long as an Event of Default does not
exist and which consent shall not be unreasonably withheld), or (b) if a successor agent shall not
be so appointed and approved within the thirty (30) day period following the Administrative Agent’s
notice to the Lenders of its resignation, then the Administrative Agent shall appoint a successor
agent that shall serve as agent until such time as the Required Lenders appoint a successor agent.
If no successor agent has accepted appointment as the Administrative Agent by the date that is
thirty (30) days following a retiring Administrative Agent’s notice of resignation, the retiring
Administrative Agent’s resignation shall nevertheless thereupon become effective, and the Lenders
(or other appropriate holders of the Secured Obligations) shall assume and perform all of the
duties of the Administrative Agent hereunder until such time, if any, as the Required Lenders
appoint a successor agent as provided for above. Upon its appointment, such successor agent shall
succeed to the rights, powers and duties as agent, and the term “Administrative Agent” means such
successor effective upon its appointment, and the former agent’s rights, powers and duties as agent
shall be terminated without any other or further act or deed on the part of such former agent or
any of the parties to this Agreement. After any retiring Administrative Agent’s resignation as the
Administrative Agent, the provisions of this Article X shall inure to its benefit as to any actions
taken or omitted to be taken by it while it was the Administrative Agent under this Agreement and
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Section 10.12. Fronting Lender. Each Fronting Lender shall act on behalf of the
Lenders with respect to any Letters of Credit issued by such Fronting Lender and the documents
associated therewith. Such Fronting Lender shall have all of the benefits and immunities (a)
provided to the Administrative Agent in this Article X with respect to any acts taken or omissions
suffered by each Fronting Lender in connection with the Letters of Credit and the applications and
agreements for letters of credit pertaining to such Letters of Credit as fully as if the term
“Administrative Agent”, as used in this Article X, included such Fronting Lender with respect to
such acts or omissions, and (b) as additionally provided in this Agreement with respect to such
Fronting Lender.



Section 10.13. Swing Line Lender. The Swing Line Lender shall act on behalf of the
Lenders with respect to any Swing Loans. The Swing Line Lender shall have all of the benefits and
immunities (a) provided to the Administrative Agent in this Article X with respect to any acts
taken or omissions suffered by the Swing Line Lender in connection with the Swing Loans as fully as
if the term “Administrative Agent”, as used in this Article X, included the Swing Line Lender with
respect to such acts or omissions, and (b) as additionally provided in this Agreement with respect
to the Swing Line Lender.



Section 10.14. Administrative Agent May File Proofs of Claim. In case of the
pendency of any receivership, insolvency, liquidation, bankruptcy, reorganization, arrangement,
adjustment, composition or other judicial proceeding relative to any Credit Party, (a) the
Administrative Agent (irrespective of whether the principal of any Loan shall then be due and
payable as herein expressed or by declaration or otherwise and irrespective of whether the
Administrative Agent shall have made any demand on any Borrower) shall be entitled and empowered,
by intervention in such proceeding or otherwise, to (i) file and prove a claim for the whole amount
of the principal and interest owing and unpaid in respect of the Loans, and all other Obligations
that are owing and unpaid and to file such other documents as may be necessary or advisable in
order to have the claims of the Lenders and the Administrative Agent (including any claim for the
reasonable compensation, expenses, disbursements and advances of the Lenders and the Administrative
Agent and their respective agents and counsel and all other amounts due the Lenders and the
Administrative Agent) allowed in such judicial proceedings, and (ii) collect and receive any monies
or other property payable or deliverable on any such claims and to distribute the same; and (b) any
custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any
such judicial proceeding is hereby authorized by each Lender to make such payments to the
Administrative Agent and, in the event that the Administrative Agent shall consent to the making of
such payments directly to the Lenders, to pay to the Administrative Agent any amount due for the
reasonable compensation, expenses, disbursements and advances of the Administrative Agent and its
agents and counsel, and any other amounts due the Administrative Agent. Nothing contained herein
shall be deemed to authorize the Administrative Agent to authorize or consent to or accept or adopt
on behalf of any Lender any plan of reorganization, arrangement, adjustment or composition
affecting the Obligations or the rights of any Lender or to authorize the Administrative Agent to
vote in respect of the claim of any Lender in any such proceeding.


 


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Section 10.15. No Reliance on Administrative Agent’s Customer Identification Program.
Each Lender acknowledges and agrees that neither such Lender, nor any of its affiliates,
participants or assignees, may rely on the Administrative Agent to carry out such Lender’s or its
affiliate’s, participant’s or assignee’s customer identification program, or other obligations
required or imposed under or pursuant to the Patriot Act or the regulations thereunder, including
the regulations contained in 31 CFR 103.121 (as hereafter amended or replaced, the “CIP
Regulations”), or any other anti-terrorism law, including any programs involving any of the
following items relating to or in connection with the Borrowers, their respective Affiliates or
agents, the Loan Documents or the transactions hereunder: (a) any identity verification procedures,
(b) any record keeping, (c) any comparisons with government lists, (d) any customer notices or (e)
any other procedures required under the CIP Regulations or such other laws.



Section 10.16. Delivery of Certain Financial Information. The Administrative Agent
shall make available to the Lenders, promptly after receipt thereof, the financial information
required to be provided by the Borrower to the Administrative Agent pursuant to Sections 4.3 and
5.3 hereof.



Section 10.17. Other Agents. The Administrative Agent shall have the continuing
right (subject to the titles awarded on the Closing Date) from time to time to designate one or
more Lenders (or its or their affiliates) as “syndication agent”, “co-syndication agent”,
“documentation agent”, “co-documentation agent”, “book runner”, “lead arranger”, “arrangers” or
other designations for purposes hereof, but (a) any such designation shall have no substantive
effect, and (b) any such Lender and its affiliates shall have no additional powers, duties,
responsibilities or liabilities as a result thereof.



ARTICLE XI. GUARANTY




Section 11.1. Guaranty by Borrowers. The Borrowers hereby unconditionally guarantee,
for the benefit of the Designated Hedge Creditors, all of the Designated Hedge Obligations owing to
a Lender (or an entity that is an affiliate of a then existing Lender). Upon failure by any Credit
Party to pay punctually any of the Designated Hedge Obligations owing to a Lender (or an entity
that is an affiliate of a then existing Lender), the Borrowers shall forthwith on demand by the
Administrative Agent pay the amount not so paid at the place and in the currency and otherwise in
the manner specified in this Agreement or any other applicable agreement or instrument.



Section 11.2. Additional Undertaking. As a separate, additional and continuing
obligation, the Borrowers unconditionally and irrevocably undertake and agree, for the benefit of
the Designated Hedge Creditors that, should any Designated Hedge Obligations not be recoverable
from any Borrower under Section 11.1 hereof for any reason whatsoever (including, without
limitation, by reason of any provision of any Loan Document or any other agreement or instrument
executed in connection therewith being or becoming void, unenforceable, or otherwise invalid under
any applicable law) then, notwithstanding any notice or knowledge thereof by any Lender, the
Administrative Agent, any of their respective affiliates, or any other Person, at any time, the
Borrowers as sole, original and independent obligors, upon demand by the Administrative Agent, will
make payment to the Administrative Agent, for the account of the Designated Hedge Creditors, of all
such obligations not so recoverable by way of full indemnity, in such currency and otherwise in
such manner as is provided in the Loan Documents or any other applicable agreement or instrument.


 


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Section 11.3. Guaranty Unconditional. The obligations of the Borrowers under this
Article XI shall be unconditional and absolute and, without limiting the generality of the
foregoing, shall not be released, discharged or otherwise affected by the occurrence, one or more
times, of any of the following:



(a) any extension, renewal, settlement, compromise, waiver or release in respect to the
Designated Hedge Obligations under any agreement or instrument, by operation of law or otherwise;



(b) any modification or amendment of or supplement to this Agreement, any Note, any other Loan
Document, or any agreement or instrument evidencing or relating to any Designated Hedge Obligation;



(c) any release, non-perfection or invalidity of any direct or indirect security for the
Designated Hedge Obligations under any agreement or instrument evidencing or relating to any
Designated Hedge Obligation;



(d) any change in the corporate existence, structure or ownership of any Credit Party or other
Company or any insolvency, bankruptcy, reorganization or other similar proceeding affecting any
Credit Party or other Company or its assets or any resulting release or discharge of any obligation
of any Credit Party or other Company contained in any agreement or instrument evidencing or
relating to any of the Designated Hedge Obligations;



(e) the existence of any claim, set-off or other rights that the Borrowers may have at any
time against any other Credit Party, the Administrative Agent, any Lender, any affiliate of any
Lender or any other Person, whether in connection herewith or any unrelated transactions;



(f) any invalidity or unenforceability relating to or against any other Credit Party, for any
reason, of any agreement or instrument evidencing or relating to any of the Designated Hedge
Obligations, or any provision of applicable law or regulation purporting to prohibit the payment by
any Credit Party of any of the Designated Hedge Obligations; or



(g) any other act or omission of any kind by any other Credit Party, the Administrative Agent,
any Lender or any other Person, or any other circumstance whatsoever that might, but for the
provisions of this Article XI, constitute a legal or equitable discharge of the Borrowers’
obligations under this Article XI other than the irrevocable payment in full of all of the
Designated Hedge Obligations.




Section 11.4. Borrowers’ Obligations to Remain in Effect; Restoration.



(a) the Borrowers’ obligations under this Article XI shall remain in full force and effect
until the Commitment shall have terminated, and the principal of and interest on the Loans and
Designated Hedge Obligations, and all other amounts payable by the Borrowers, any other Credit
Party or other Company, under the Loan Documents or any other agreement or instrument evidencing or

 


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relating
to any of the Designated Hedge Obligations, shall have been paid in full; provided that, if the Commitment shall have been terminated and all of the Obligations paid in
full, then, if any obligations shall remain outstanding under the Designated Hedge Agreements, then
the Borrowers shall cash collateralize, in form and substance satisfactory to the Administrative
Agent, such obligations based on the net termination value of such Designated Hedge Agreements on
such termination date.



(b) If at any time any payment of any of the Designated Hedge Obligations is rescinded or must
be otherwise restored or returned upon the insolvency, bankruptcy or reorganization of such Credit
Party, the Borrowers’ obligations under this Article XI with respect to such payment shall be
reinstated at such time as though such payment had been due but not made at such time.



Section 11.5. Certain Waivers. The Borrowers irrevocably waive acceptance hereof,
presentment, demand, protest and any notice not provided for herein, as well as any requirement
that at any time any action be taken by any Person against any other Credit Party or any other
Person, or against any collateral or guaranty of any other Person.



Section 11.6. Subrogation. Until the indefeasible payment in full of all of the
Obligations and the termination of the Commitments hereunder, the Borrowers shall have no rights,
by operation of law or otherwise, upon making any payment under this Article XI to be subrogated to
the rights of the payee against any other Credit Party with respect to such payment or otherwise to
be reimbursed, indemnified or exonerated by any such Credit Party in respect thereof.



Section 11.7. Effect of Stay. In the event that acceleration of the time for payment
of any amount payable by any Credit Party under any of the Designated Hedge Obligations is stayed
upon insolvency, bankruptcy or reorganization of such Credit Party, all such amounts otherwise
subject to acceleration under the terms of any applicable agreement or instrument evidencing or
relating to any of the Designated Hedge Obligations shall nonetheless be payable by the Borrowers
under this Article XI forthwith on demand by the Administrative Agent.



Section 11.8. Effect of Breach of Article XI. Notwithstanding anything in this
Agreement to the contrary, if any Borrower shall fail or omit to perform and observe any agreement
or other provision set forth in this Article XI, such failure or omission shall not be a Default or
Event of Default hereunder unless such failure or omission would constitute a Default or Event of
Default hereunder independent of its obligations under this Article XI.



ARTICLE XII. MISCELLANEOUS




Section 12.1. Lenders’ Independent Investigation. Each Lender, by its signature to
this Agreement, acknowledges and agrees that the Administrative Agent has made no representation or
warranty, express or implied, with respect to the creditworthiness, financial condition, or any
other condition of any Company or with respect to the statements contained in any information
memorandum furnished in connection herewith or in any other oral or written communication between
the Administrative Agent and such Lender.

 


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Each
Lender represents that it has made and shall continue to make its own independent investigation of the creditworthiness, financial
condition and affairs of the Companies in connection with the extension of credit hereunder, and
agrees that the Administrative Agent has no duty or responsibility, either initially or on a
continuing basis, to provide any Lender with any credit or other information with respect thereto
(other than such notices as may be expressly required to be given by the Administrative Agent to
the Lenders hereunder), whether coming into its possession before the first Credit Event hereunder
or at any time or times thereafter. Each Lender further represents that it has reviewed each of
the Loan Documents.



Section 12.2. No Waiver; Cumulative Remedies. No omission or course of dealing on
the part of the Administrative Agent, any Lender or the holder of any Note (or, if there is no
Note, the holder of the interest as reflected on the books and records of the Administrative Agent)
in exercising any right, power or remedy hereunder or under any of the Loan Documents shall operate
as a waiver thereof; nor shall any single or partial exercise of any such right, power or remedy
preclude any other or further exercise thereof or the exercise of any other right, power or remedy
hereunder or under any of the Loan Documents. The remedies herein provided are cumulative and in
addition to any other rights, powers or privileges held under any of the Loan Documents or by
operation of law, by contract or otherwise.




Section 12.3. Amendments, Waivers and Consents.



(a) General Rule. No amendment, modification, termination, or waiver of any provision
of any Loan Document nor consent to any variance therefrom, shall be effective unless the same
shall be in writing and signed by the Required Lenders and then such waiver or consent shall be
effective only in the specific instance and for the specific purpose for which given.



(b) Exceptions to the General Rule. Notwithstanding the provisions of subsection (a)
of this Section 12.3:




(i) Consent of Affected Lenders Required. No amendment, modification, waiver
or consent shall (A) extend or increase the Commitment of any Lender without the written
consent of such Lender, (B) extend the date scheduled for payment of any principal
(excluding mandatory prepayments) of or interest on the Loans or commitment fees payable
hereunder without the written consent of each Lender directly affected thereby, (C) reduce
the principal amount of any Loan, the stated rate of interest thereon (provided that the
institution of the Default Rate or post default interest and a subsequent removal of the
Default Rate or post default interest shall not constitute a decrease in interest rate
pursuant to this Section 12.3) or the stated rate of commitment fees payable hereunder,
without the consent of each Lender directly affected thereby, (D) change the manner of pro
rata application of any payments made by the Borrowers to the Lenders hereunder, without the
consent of each Lender directly affected thereby, (E) increase the percentage advance rates
set forth in the definition of Borrowing Base contained in the Agreement, without the
consent of each Revolving Lender, (F) without the unanimous consent of the Lenders, change
any percentage voting requirement, voting rights, or the Required Lenders definition in this
Agreement, (G) without the unanimous consent of the Lenders, release the Borrowers or any
Guarantor of Payment or of any material amount
of collateral securing the Secured Obligations, except in connection with a transaction
specifically permitted hereunder, or (H) without the unanimous consent of the Lenders, amend
this Section 12.3 or Section 9.5 or 9.9 hereof.


 


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(ii) Provisions Relating to Special Rights and Duties. No provision of this
Agreement affecting the Administrative Agent in its capacity as such shall be amended,
modified or waived without the consent of the Administrative Agent. No provision of this
Agreement relating to the rights or duties of a Fronting Lender in its capacity as such
shall be amended, modified or waived without the consent of such Fronting Lender. No
provision of this Agreement relating to the rights or duties of the Swing Line Lender in its
capacity as such shall be amended, modified or waived without the consent of the Swing Line
Lender.



(c) Replacement of Non-Consenting Lender. If, in connection with any proposed
amendment, waiver or consent hereunder, the consent of all Lenders is required, but only the
consent of Required Lenders is obtained, (any Lender withholding consent as described in this
subsection being referred to as a “Non-Consenting Lender”), then, so long as the Administrative
Agent is not the Non-Consenting Lender, the Administrative Agent may (and shall, if requested by
the Borrowers), at the sole expense of the Borrowers, upon notice to such Non-Consenting Lender and
the Borrowers, require such Non-Consenting Lender to assign and delegate, without recourse (in
accordance with the restrictions contained in Section 12.10 hereof) all of its interests, rights
and obligations under this Agreement to a financial institution acceptable to the Administrative
Agent and the Borrowers that shall assume such obligations (which assignee may be another Lender,
if a Lender accepts such assignment); provided that such Non-Consenting Lender shall have received
payment of an amount equal to the outstanding principal of its Loans, accrued interest thereon,
accrued fees and all other amounts payable to it hereunder, from such financial institution (to the
extent of such outstanding principal and accrued interest and fees) or the Administrative Borrower
(in the case of all other amounts, including any breakage compensation under Article III hereof).



(d) Generally. Notice of amendments, waivers or consents ratified by the Lenders
hereunder shall be forwarded by the Administrative Agent to all of the Lenders. Each Lender or
other holder of a Note, or if there is no Note, the holder of the interest as reflected on the
books and records of the Administrative Agent (or interest in any Loan or Letter of Credit) shall
be bound by any amendment, waiver or consent obtained as authorized by this Section 12.3,
regardless of its failure to agree thereto.



Section 12.4. Notices. All notices, requests, demands and other communications
provided for hereunder shall be in writing and, if to a Borrower, mailed or delivered to it,
addressed to it at the address specified on the signature pages of this Agreement, if to the
Administrative Agent or a Lender, mailed or delivered to it, addressed to the address of the
Administrative Agent or such Lender specified on the signature pages of this Agreement, or, as to
each party, at such other address as shall be designated by such party in a written notice to each
of the other parties. All notices, statements, requests, demands and other communications provided
for hereunder shall be deemed to be given or made when delivered (if received during a Business
Day, such Business Day, otherwise the

 


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following
Business Day) or two Business Days after being deposited in the mails with postage prepaid by registered or certified mail, addressed
as aforesaid, or sent by facsimile or electronic communication, in each case with telephonic
confirmation of receipt. All notices hereunder shall not be effective until received. For
purposes of Article II hereof, the Administrative Agent shall be entitled to rely on telephonic
instructions from any person that the Administrative Agent in good faith believes is an Authorized
Officer, and the Borrowers shall hold the Administrative Agent and each Lender harmless from any
loss, cost or expense resulting from any such reliance.



Section 12.5. Costs, Expenses and Documentary Taxes. The Borrowers agree to pay on
demand all reasonable costs and expenses of the Administrative Agent and all reasonable Related
Expenses, including but not limited to (a) Protective Advances, (b) syndication, administration,
travel and out-of-pocket expenses, including but not limited to attorneys’ fees and expenses, of
the Administrative Agent in connection with the preparation, negotiation and closing of the Loan
Documents and the administration of the Loan Documents, and the collection and disbursement of all
funds hereunder and the other instruments and documents to be delivered hereunder, (c)
extraordinary expenses of the Administrative Agent in connection with the administration of the
Loan Documents and the other instruments and documents to be delivered hereunder, and (d) the
reasonable fees and out-of-pocket expenses of special counsel for the Administrative Agent, with
respect to the foregoing, and of local counsel, if any, who may be retained by said special counsel
with respect thereto. The Borrowers also agree to pay on demand all costs and expenses (including
Related Expenses) of the Administrative Agent and the Lenders, including reasonable attorneys’ fees
and expenses, in connection with the restructuring or enforcement of the Obligations, this
Agreement or any Related Writing. In addition, the Borrowers shall pay any and all stamp,
transfer, documentary and other taxes, assessments, charges and fees payable or determined to be
payable in connection with the execution and delivery of the Loan Documents, and the other
instruments and documents to be delivered hereunder, and agree to hold the Administrative Agent and
each Lender harmless from and against any and all liabilities with respect to or resulting from any
delay in paying or failure to pay such taxes or fees. All obligations provided for in this Section
12.5 shall survive any termination of this Agreement.



Section 12.6. Indemnification. Each Borrower agrees to defend, indemnify and hold
harmless the Administrative Agent and the Lenders (and their respective affiliates, officers,
directors, attorneys, agents and employees) from and against any and all liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses (including attorneys’ fees)
or disbursements of any kind or nature whatsoever that may be imposed on, incurred by or asserted
against the Administrative Agent or any Lender in connection with any investigative, administrative
or judicial proceeding (whether or not such Lender or the Administrative Agent shall be designated
a party thereto) or any other claim by any Person relating to or arising out of any Loan Document
or any actual or proposed use of proceeds of the Loans or any of the Obligations, or any activities
of any Company or its Affiliates; provided that no Lender nor the Administrative Agent shall have
the right to be indemnified under this Section 12.6 for its own (or its respective affiliates’,
officers’, directors’, attorneys’, agents’ or employees’) gross negligence or willful misconduct,
as determined by a final judgment of a court of competent jurisdiction. All obligations provided
for in this Section 12.6 shall survive any termination of this Agreement.


 


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Section 12.7. Obligations Several; No Fiduciary Obligations. The obligations of the
Lenders hereunder are several and not joint. Nothing contained in this Agreement and no action
taken by the Administrative Agent or the Lenders pursuant hereto shall be deemed to constitute the
Administrative Agent or the Lenders a partnership, association, joint venture or other entity. No
default by any Lender hereunder shall excuse the other Lenders from any obligation under this
Agreement; but no Lender shall have or acquire any additional obligation of any kind by reason of
such default. The relationship between the Borrowers and the Lenders with respect to the Loan
Documents and the Related Writings is and shall be solely that of debtors and creditors,
respectively, and neither the Administrative Agent nor any Lender shall have any fiduciary
obligation toward any Credit Party with respect to any such documents or the transactions
contemplated thereby.



Section 12.8. Execution in Counterparts. This Agreement may be executed in any
number of counterparts and by different parties hereto in separate counterparts, and by facsimile
or other electronic signature, each of which counterparts when so executed and delivered shall be
deemed to be an original and all of which taken together shall constitute but one and the same
agreement.



Section 12.9. Binding Effect; Borrowers’ Assignment. This Agreement shall become
effective when it shall have been executed by each Borrower, the Administrative Agent and each
Lender and thereafter shall be binding upon and inure to the benefit of each Borrower, the
Administrative Agent and each of the Lenders and their respective successors and permitted assigns,
except that no Borrower shall have the right to assign its rights hereunder or any interest herein
without the prior written consent of the Administrative Agent and all of the Lenders.




Section 12.10. Lender Assignments.



(a) Assignments of Commitments. Each Lender shall have the right at any time or times
to assign to an Eligible Transferee (other than to a Lender that shall not be in compliance with
this Agreement), without recourse, all or a percentage of all of the following: (i) such Lender’s
Commitment, (ii) all Loans made by that Lender, (iii) such Lender’s Notes, and (iv) such Lender’s
interest in any Letter of Credit or Swing Loan, and any participation purchased pursuant to Section
2.2(b) or (c) or Section 9.5 hereof.



(b) Prior Consent. No assignment may be consummated pursuant to this Section 12.10
without the prior written consent of the Administrative Borrower and the Administrative Agent
(other than an assignment by any Lender to any affiliate of such Lender which affiliate is an
Eligible Transferee and either wholly-owned by a Lender or is wholly-owned by a Person that wholly
owns, either directly or indirectly, such Lender, or to another Lender), which consent of the
Administrative Borrower and the Administrative Agent shall not be unreasonably withheld; provided
that (i) the consent of the Administrative Borrower shall not be required if, at the time of the
proposed assignment, any Default or Event of Default shall then exist and (ii) the Administrative
Borrower shall be deemed to have granted its consent unless the Administrative Borrower has
expressly objected to such assignment within five Business Days after notice thereof. Anything
herein to the contrary notwithstanding, any Lender may at any time make a
collateral assignment of all or any portion of its rights under the Loan Documents to a Federal
Reserve Bank, and no such assignment shall release such assigning Lender from its obligations
hereunder.


 


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(c) Minimum Amount. Each such assignment shall be in a minimum amount of the lesser
of Five Million Dollars ($5,000,000) of the assignor’s Commitment and interest herein, or the
entire amount of the assignor’s Commitment and interest herein.



(d) Assignment Fee. Unless the assignment shall be to an affiliate of the assignor or
the assignment shall be due to merger of the assignor or for regulatory purposes, either the
assignor or the assignee shall remit to the Administrative Agent, for its own account, an
administrative fee of Three Thousand Five Hundred Dollars ($3,500).



(e) Assignment Agreement. Unless the assignment shall be due to merger of the
assignor or a collateral assignment for regulatory purposes, the assignor shall (i) cause the
assignee to execute and deliver to the Administrative Borrower and the Administrative Agent an
Assignment Agreement, and (ii) execute and deliver, or cause the assignee to execute and deliver,
as the case may be, to the Administrative Agent such additional amendments, assurances and other
writings as the Administrative Agent may reasonably require.



(f) Non-U.S. Assignee. If the assignment is to be made to an assignee that is
organized under the laws of any jurisdiction other than the United States or any state thereof, the
assignor Lender shall cause such assignee, at least five Business Days prior to the effective date
of such assignment, (i) to represent to the assignor Lender (for the benefit of the assignor
Lender, the Administrative Agent and the Borrowers) that under applicable law and treaties no taxes
will be required to be withheld by the Administrative Agent, the Borrowers or the assignor with
respect to any payments to be made to such assignee in respect of the Loans hereunder, (ii) to
furnish to the assignor Lender (and, in the case of any assignee registered in the Register (as
defined below), the Administrative Agent and the Borrowers) either U.S. Internal Revenue Service
Form W-8ECI, Form W-8IMY or U.S. Internal Revenue Service Form W-8BEN, as applicable (wherein such
assignee claims entitlement to complete exemption from U.S. federal withholding tax on all payments
hereunder), and (iii) to agree (for the benefit of the assignor, the Administrative Agent and the
Borrowers) to provide to the assignor Lender (and, in the case of any assignee registered in the
Register, to the Administrative Agent and the Borrowers) a new Form W-8ECI or Form W-8BEN, as
applicable, upon the expiration or obsolescence of any previously delivered form and comparable
statements in accordance with applicable U.S. laws and regulations and amendments duly executed and
completed by such assignee, and to comply from time to time with all applicable U.S. laws and
regulations with regard to such withholding tax exemption.



(g) Deliveries by Borrowers. Upon satisfaction of all applicable requirements
specified in subsections (a) through (f) above, the Borrowers shall execute and deliver (i) to the
Administrative Agent, the assignor and the assignee, any consent or release (of all or a portion of
the obligations of the assignor) required to be delivered by the Borrowers in connection with the
Assignment Agreement, and (ii) to the assignee, if requested, and the assignor, if applicable, an
appropriate Note or Notes. After delivery of the new Note or Notes, the assignor’s Note or
Notes, if any, being replaced shall be returned to the Administrative Borrower marked “replaced”.


 


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(h) Effect of Assignment. Upon satisfaction of all applicable requirements set forth
in subsections (a) through (g) above, and any other condition contained in this Section 12.10, (i)
the assignee shall become and thereafter be deemed to be a “Lender” for the purposes of this
Agreement, (ii) the assignor shall be released from its obligations hereunder to the extent that
its interest has been assigned, (iii) in the event that the assignor’s entire interest has been
assigned, the assignor shall cease to be and thereafter shall no longer be deemed to be a “Lender”
and (iv) the signature pages hereto and Schedule 1 hereto shall be automatically amended,
without further action, to reflect the result of any such assignment.



(i) Administrative Agent to Maintain Register. The Administrative Agent shall
maintain at the address for notices referred to in Section 12.4 hereof a copy of each Assignment
Agreement 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 Borrowers, 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 Agreement. The Register shall be available for inspection by the Borrowers or any Lender
at any reasonable time and from time to time upon reasonable prior notice.



Section 12.11. Sale of Participations. Any Lender may, in the ordinary course of its
commercial banking business and in accordance with applicable law, at any time sell participations
to one or more Eligible Transferees (each a “Participant”) in all or a portion of its rights or
obligations under this Agreement and the other Loan Documents (including, without limitation, all
or a portion of the Commitment and the Loans and participations owing to it and the Note, if any,
held by it); provided that:



(a) any such Lender’s obligations under this Agreement and the other Loan Documents shall
remain unchanged;



(b) such Lender shall remain solely responsible to the other parties hereto for the
performance of such obligations;



(c) the parties hereto shall continue to deal solely and directly with such Lender in
connection with such Lender’s rights and obligations under this Agreement and each of the other
Loan Documents;



(d) such Participant shall be bound by the provisions of Section 9.5 hereof, and the Lender
selling such participation shall obtain from such Participant a written confirmation of its
agreement to be so bound; and



(e) no Participant (unless such Participant is itself a Lender) shall be entitled to require
such Lender to take or refrain from taking action under this Agreement or under any
other Loan Document, except that such Lender may agree with such Participant that such Lender will
not, without such Participant’s consent, take action of the type described as follows:


 


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(i) increase the portion of the participation amount of any Participant over the amount
thereof then in effect, or extend the Commitment Period, without the written consent of each
Participant affected thereby; or




(ii) reduce the principal amount of or extend the time for any payment of principal of
any Loan, or reduce the rate of interest or extend the time for payment of interest on any
Loan, or reduce the commitment fee, without the written consent of each Participant affected
thereby.



The Borrowers agree that any Lender that sells participations pursuant to this Section 12.11 shall
still be entitled to the benefits of Article III hereof, notwithstanding any such transfer;
provided that the obligations of the Borrowers shall not increase as a result of such transfer and
the Borrowers shall have no obligation to any Participant.



Section 12.12. Replacement of Affected Lenders. Each Lender agrees that, during the
time in which any Lender is an Affected Lender, the Administrative Agent shall have the right (and
the Administrative Agent shall, if requested by the Administrative Borrower), at the sole expense
of the Borrowers, upon notice to such Affected Lender and the Administrative Borrower, to require
that such Affected Lender assign and delegate, without recourse (in accordance with the
restrictions contained in Section 12.10 hereof), all of its interests, rights and obligations under
this Agreement to an Eligible Transferee, approved by the Administrative Borrower (unless an Event
of Default shall exist) and the Administrative Agent, that shall assume such obligations (which
assignee may be another Lender, if a Lender accepts such assignment); provided that such Affected
Lender shall have received payment of an amount equal to the outstanding principal of its Loans,
accrued interest thereon, accrued fees and all other amounts payable to it hereunder (recognizing
that any Affected Lender may have given up its rights under this Agreement to receive payment of
fees and other amounts pursuant to Section 2.7(f) and (g) hereof), from such Eligible Transferee
(to the extent of such outstanding principal and accrued interest and fees) or the Administrative
Borrower (in the case of all other amounts, including any breakage compensation under Article III
hereof).



Section 12.13. Patriot Act Notice. Each Lender and the Administrative Agent (for
itself and not on behalf of any other party) hereby notifies the Credit Parties that, pursuant to
the requirements of the Patriot Act, such Lender and the Administrative Agent are required to
obtain, verify and record information that identifies the Credit Parties, which information
includes the name and address of each of the Credit Parties and other information that will allow
such Lender or the Administrative Agent, as applicable, to identify the Credit Parties in
accordance with the Patriot Act. Each Borrower shall provide, to the extent commercially
reasonable, such information and take such actions as are reasonably requested by the
Administrative Agent or a Lender in order to assist the Administrative Agent or such Lender in
maintaining compliance with the Patriot Act.


 


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Section 12.14. Severability of Provisions; Captions; Attachments. Any provision of
this Agreement that shall be 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 or affecting the validity or enforceability of such
provision in any other jurisdiction. The several captions to sections and subsections herein are
inserted for convenience only and shall be ignored in interpreting the provisions of this
Agreement. Each schedule or exhibit attached to this Agreement shall be incorporated herein and
shall be deemed to be a part hereof.



Section 12.15. Investment Purpose. Each of the Lenders represents and warrants to
the Borrowers that it is entering into this Agreement with the present intention of acquiring any
Note issued pursuant hereto (or, if there is no Note, the interest as reflected on the books and
records of the Administrative Agent) for investment purposes only and not for the purpose of
distribution or resale, it being understood, however, that each Lender shall at all times retain
full control over the disposition of its assets.



Section 12.16. Entire Agreement. This Agreement, any Note and any other Loan
Document or other agreement, document or instrument attached hereto or executed in connection with
the Prior Credit Agreements (as such documents may have been amended or replaced) and on or as of
the Closing Date, integrate all of the terms and conditions mentioned herein or incidental hereto
and supersede all oral representations and negotiations and prior writings with respect to the
subject matter hereof.



Section 12.17. Confidentiality. The Administrative Agent and each Lender shall hold
all Confidential Information in accordance with the customary procedures of the Administrative
Agent or such Lender for handling confidential information of this nature, and in accordance with
safe and sound banking practices. Notwithstanding the foregoing, the Administrative Agent or any
Lender may in any event make disclosures of, and furnish copies of Confidential Information (a) to
another agent under this Agreement or another Lender; (b) when reasonably required by any bona fide
transferee or participant in connection with the contemplated transfer of any Loans or Commitment
or participation therein (provided that each such prospective transferee or participant shall have
an agreement for the benefit of the Borrowers with such prospective transferor Lender or
participant containing substantially similar provisions to those contained in this Section 12.17);
(c) to the parent corporation or other affiliates of the Administrative Agent or such Lender, and
to their respective auditors and attorneys; and (d) as required or requested by any Governmental
Authority or representative thereof, or pursuant to legal process, provided, that, unless
specifically prohibited by applicable law or court order, the Administrative Agent or such Lender,
as applicable, shall notify the chief financial officer of the Administrative Borrower of any
request by any Governmental Authority or representative thereof (other than any such request in
connection with an examination of the financial condition of the Administrative Agent or such
Lender by such Governmental Authority), and of any other request pursuant to legal process, for
disclosure of any such non-public information prior to disclosure of such Confidential Information.
Notwithstanding anything contained herein to the contrary, the Administrative Agent, each Lender,
the Borrowers and their Affiliates may disclose to any and all Persons, without limitation of any
kind, the tax treatment and tax structure of the transactions contemplated hereby and by the other

 


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Loan
Documents and materials of any kind (including opinions or other tax analyses) that are provided to the Administrative Agent, any
Lender, the Borrowers or their Affiliates relating to such tax treatment and tax structure; it
being understood that this authorization is retroactively effective to the commencement of the
first discussions between or among any of the parties regarding the transactions contemplated
hereby and by the other Loan Documents. In no event shall the Administrative Agent or any Lender
be obligated or required to return any materials furnished by or on behalf of any Company. Each
Borrower hereby agrees that the failure of the Administrative Agent or any Lender to comply with
the provisions of this Section 12.17 shall not relieve any Borrower of any of the obligations to
the Administrative Agent and the Lenders under this Agreement and the other Loan Documents.



Section 12.18. Limitations on Liability of the Fronting Lenders. The Borrowers
assume all risks of the acts or omissions of any beneficiary or transferee of any Letter of Credit
with respect to its use of such Letters of Credit. Neither any Fronting Lender nor any of its
officers or directors shall be liable or responsible for (a) the use that may be made of any Letter
of Credit or any acts or omissions of any beneficiary or transferee in connection therewith; (b)
the validity, sufficiency or genuineness of documents, or of any endorsement thereon, even if such
documents should prove to be in any or all respects invalid, insufficient, fraudulent or forged;
(c) payment by a Fronting Lender against presentation of documents that do not comply with the
terms of a Letter of Credit, including failure of any documents to bear any reference or adequate
reference to such Letter of Credit; or (d) any other circumstances whatsoever in making or failing
to make payment under any Letter of Credit, except that the account party on such Letter of Credit
shall have a claim against a Fronting Lender, and a Fronting Lender shall be liable to such account
party, to the extent of any direct, but not consequential, damages suffered by such account party
that such account party proves were caused by (i) such Fronting Lender’s willful misconduct or
gross negligence (as determined by a final judgment of a court of competent jurisdiction) in
determining whether documents presented under a Letter of Credit comply with the terms of such
Letter of Credit, or (ii) such Fronting Lender’s willful failure to make lawful payment under any
Letter of Credit after the presentation to it of documentation strictly complying with the terms
and conditions of such Letter of Credit. In furtherance and not in limitation of the foregoing, a
Fronting Lender may accept documents that appear on their face to be in order, without
responsibility for further investigation.



Section 12.19. General Limitation of Liability. No claim may be made by any Credit
Party, any Lender, the Administrative Agent, any Fronting Lender or any other Person against the
Administrative Agent, any Fronting Lender, or any other Lender or the affiliates, directors,
officers, employees, attorneys or agents of any of them for any damages other than actual
compensatory damages in respect of any claim for breach of contract or any other theory of
liability arising out of or related to the transactions contemplated by this Agreement or any of
the other Loan Documents, or any act, omission or event occurring in connection therewith; and the
Borrowers, each Lender, the Administrative Agent and each Fronting Lender hereby, to the fullest
extent permitted under applicable law, waive, release and agree not to sue or counterclaim upon any
such claim for any special, consequential or punitive damages, whether or not accrued and whether
or not known or suspected to exist in their favor. As of the Closing Date, each Credit Party
hereby waives and releases the Administrative Agent and each of the Lenders, and their respective
directors, officers, employees, attorneys, affiliates and subsidiaries, from any and
all claims, offsets, defenses and counterclaims of which any Credit Party is aware, such waiver and
release being with full knowledge and understanding of the circumstances and effect thereof and
after having consulted legal counsel with respect thereto.


 


142









 





Section 12.20. No Duty. All attorneys, accountants, appraisers, consultants and
other professional persons (including the firms or other entities on behalf of which any such
Person may act) retained by the Administrative Agent or any Lender with respect to the transactions
contemplated by the Loan Documents shall have the right to act exclusively in the interest of the
Administrative Agent or such Lender, as the case may be, and shall have no duty of disclosure, duty
of loyalty, duty of care, or other duty or obligation of any type or nature whatsoever to the
Borrowers, any other Companies, or to any other Person, with respect to any matters within the
scope of such representation or related to their activities in connection with such representation.
Each Borrower agrees, on behalf of itself and its Subsidiaries, not to assert any claim or
counterclaim against any such persons with regard to such matters, all such claims and
counterclaims, now existing or hereafter arising, whether known or unknown, foreseen or
unforeseeable, being hereby waived, released and forever discharged.



Section 12.21. Legal Representation of Parties. The Loan Documents were negotiated
by the parties with the benefit of legal representation and any rule of construction or
interpretation otherwise requiring this Agreement or any other Loan Document to be construed or
interpreted against any party shall not apply to any construction or interpretation hereof or
thereof.




Section 12.22. Judgment Currency.



(a) This in an international transaction in which the obligations of the Credit Parties under
this Agreement to make payment to or for account of the Administrative Agent or the Lenders in a
specified currency (“Original Currency”) shall not be discharged or satisfied by any tender or
recovery pursuant to any judgment expressed in or converted into any other currency (“Judgment
Currency”) except to the extent that such tender or recovery results in the effective receipt by
the Administrative Agent or such Lender of the full amount in Original Currency payable to the
Administrative Agent or such Lender under this Agreement.



(b) If the Administrative Agent, on behalf of the Lenders, or any other holder of the
Obligations (the “Applicable Creditor”), obtains a judgment or judgments against any Credit Party
in respect of any sum adjudged to be due to the Administrative Agent or the Lenders hereunder or
under the Notes (the “Judgment Amount”) in a Judgment Currency other than the Original Currency,
the obligations of such Credit Party in connection with such judgment shall be discharged only to
the extent that (i) on the Business Day following receipt by the Applicable Creditor of any sum
adjudged to be so due in the Judgment Currency, such Applicable Creditor, in accordance with the
normal banking procedures in the relevant jurisdiction, can purchase the Original Currency with the
Judgment Currency, and (ii) if the amount of Original Currency so purchased is less than the amount
of Original Currency that could have been purchased with the Judgment Amount on the date or dates
the Judgment Currency was originally due and owing to the Administrative Agent or the Lenders
hereunder (the “Loss”), such Credit Party or Borrower, as a separate obligation and notwithstanding
any such

 


143









 






judgment,
indemnifies the Administrative Agent or such Lender, as the case may be, against such Loss. The Borrowers hereby agree to such
indemnification. For purposes of determining the equivalent in one currency of another currency as
provided in this Section 12.22, such amount shall include any premium and costs payable in
connection with the conversion into or from any currency. The obligations of the Credit Parties
contained in this Section 12.22 shall survive the termination of this Agreement and the payment of
all other amounts owing hereunder.




Section 12.23. Governing Law; Submission to Jurisdiction.



(a) Governing Law. This Agreement, each of the Notes and any Related Writing shall be
governed by and construed in accordance with the laws of the State of New York and the respective
rights and obligations of the Borrowers, the Administrative Agent, and the Lenders shall be
governed by New York law, without regard to principles of conflicts of laws.



(b) Submission to Jurisdiction. Each Borrower hereby irrevocably submits to the
non-exclusive jurisdiction of any New York state or federal court sitting in New York County, New
York over any action or proceeding arising out of or relating to this Agreement, the Obligations or
any Related Writing, and each Borrower hereby irrevocably agrees that all claims in respect of such
action or proceeding may be heard and determined in such New York state or federal court. Each
Borrower, on behalf of itself and its Subsidiaries, hereby irrevocably waives, to the fullest
extent permitted by law, any objection it may now or hereafter have to the laying of venue in any
action or proceeding in any such court as well as any right it may now or hereafter have to remove
such action or proceeding, once commenced, to another court on the grounds of FORUM NON CONVENIENS
or otherwise. Each Borrower agrees that a final, non-appealable judgment in any such action or
proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment
or in any other manner provided by law.



Section 12.24. DESIGNATED SENIOR INDEBTEDNESS. THE INDEBTEDNESS EVIDENCED BY THIS
AGREEMENT, EACH OF THE NOTES, EACH OF THE SECURITY DOCUMENTS AND EACH OTHER LOAN DOCUMENT IS AND
SHALL AT ALL TIMES CONSTITUTE “DESIGNATED SENIOR INDEBTEDNESS” UNDER THE PROVISIONS OF THE
SUBORDINATED INDENTURE. THE INDEBTEDNESS EVIDENCED BY THE GUARANTIES OF PAYMENT SHALL AT ALL TIMES
CONSTITUTE “DESIGNATED GUARANTOR SENIOR INDEBTEDNESS” UNDER THE PROVISIONS OF THE SUBORDINATED
INDENTURE.



[Remainder of page left intentionally blank]



 


144









 





JURY TRIAL WAIVER. EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING
DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR
THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER
THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER
PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON WOULD NOT, IN THE EVENT OF
LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES
HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS BY, AMONG OTHER
THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.



IN WITNESS WHEREOF, the parties have executed and delivered this Fourth Amended and Restated
Credit Agreement as of the date first set forth above.




	 	 	 	 	 	 	 
	Address:	 	3556 Lake Shore Road	 	GIBRALTAR INDUSTRIES, INC.
	 

	 	Buffalo, New York 14219	 	 	 	 
	 

	 	Attention: Kenneth W. Smith
	 	By:
	 	 
	 

	 	 	 	 	 
	 

	 	 	 	 	Kenneth W. Smith
	 

	 	 	 	 	Chief Financial Officer
	 
	 	 	 	 	 	 
	Address:	 	3556 Lake Shore Road	 	GIBRALTAR STEEL CORPORATION OF NEW YORK
	 

	 	Buffalo, New York 14219	 	 	 	 
	 

	 	Attention: Kenneth W. Smith
	 	By:
	 	 
	 

	 	 	 	 	 
	 

	 	 	 	 	Kenneth W. Smith
	 

	 	 	 	 	Chief Financial Officer
	 
	 	 	 	 	 	 
	Address:	 	127 Public Square	 	KEYBANK NATIONAL ASSOCIATION
	 	 	Cleveland, Ohio 44114-1306	 	as the Administrative Agent and as a Lender
	 

	 	Attention: Asset Based Lending	 	 	 	 
	 

	 	 	 	By:  	 	 
	 

	 	 	 	 	 
	 

	 	 	 		Name: 	 
	 

	 	 	 	 	 	 
	 

	 	 	 		Title: 	 
	 

	 	 	 	 	 	 





 


145









 







	 	 	 	 	 	 	 	 	 
	Address:	 	 	 	 	 	M&T BANK
	 	 	 	 	 	 	 
	 	 	 	 	 	 	  as Co-Documentation Agent and as a Lender
	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	Attention:
	 	 	 	By:  
	 	 
	 

	 	 	 	 
	 	 	 
	 

	 	 	 	 	 	 
	Name: 	 
	 

	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 
	Title: 	 
	 

	 	 	 	 	 	 	 	 






	 	 	 	 	 	 	 	 	 
	Address:	 	 	 	 	 	JPMORGAN CHASE BANK, N.A.
	 	 	 	 	 	 	 
	 	 	 	 	 	 	  as Co-Syndication Agent and as a Lender
	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	Attention:
	 	 	 	By:  
	 	 
	 

	 	 	 	 
	 	 	 
	 

	 	 	 	 	 	 
	Name: 	 
	 

	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 
	Title: 	 
	 

	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	Address:	 	 	 	 	 	BANK OF AMERICA, N.A.
	 	 	 	 	 	 	 
	 	 	 	 	 	 	  as Co-Syndication Agent and as a Lender
	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	Attention:
	 	 	 	By:  
	 	 
	 

	 	 	 	 
	 	 	 
	 

	 	 	 	 	 	 
	Name: 	 
	 

	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 
	Title: 	 
	 

	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	Address:	 	 	 	 	 	RBS CITIZENS, NATIONAL ASSOCIATION
	 	 	 	 	 	 	 
	 	 	 	 	 	 	  as Co-Documentation Agent and as a Lender
	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	Attention:
	 	 	 	By:  
	 	 
	 

	 	 	 	 
	 	 	 
	 

	 	 	 	 	 	 
	Name: 	 
	 

	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 
	Title: 	 
	 

	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	Address:	 	 	 	 	 	HSBC BANK USA, NATIONAL ASSOCIATION
	 	 	 	 	 	 	 
	 	 	 	 	 	 	  as Co-Documentation Agent and as a Lender
	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	Attention:
	 	 	 	By:  
	 	 
	 

	 	 	 	 
	 	 	 
	 

	 	 	 	 	 	 
	Name: 	 
	 

	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 
	Title: 	 
	 

	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	Address:	 	 	 	 	 	FIRST NIAGARA BANK, N.A.
	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	 	 	By:  
	 	 
	 	 	 	 	 	 
	 

	 	Attention:
	 	 	 	 
	Name: 	 
	 

	 	 	 	 
	 	 	 	 
	 

	 	 	 	 	 	 
	Title: 	 
	 

	 	 	 	 	 	 	 	 





 


146









 





	 	 	 	 	 	 	 	 	 
	Address:	 	 	 	 	 	PNC BANK, NATIONAL ASSOCIATION
	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	 	 	By:  	 	 
	 	 	 	 	 	 
	 

	 	Attention:
	 	 	 	 
	Name: 	 
	 

	 	 	 	 
	 	 	 	 
	 

	 	 	 	 	 	 
	Title: 	 
	 

	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	Address:	 	 	 	 	 	COMERICA BANK
	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	 	 	By:  	 	 
	 	 	 	 	 	 
	 

	 	Attention:
	 	 	 	 
	Name: 	 
	 

	 	 	 	 
	 	 	 	 
	 

	 	 	 	 	 	 
	Title: 	 
	 

	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	Address:	 	 	 	 	 	TRISTATE CAPITAL BANK
	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	 	 	By:  	 	 
	 	 	 	 	 	 
	 

	 	Attention:
	 	 	 	 
	Name: 	 
	 

	 	 	 	 
	 	 	 	 
	 

	 	 	 	 	 	 
	Title: 	 
	 

	 	 	 	 	 	 	 	 





 


147









 





EXHIBIT A

FORM OF

REVOLVING CREDIT NOTE




			
	 	 	 
	$                                        
	 	October 11, 2011






FOR VALUE RECEIVED, the undersigned, GIBRALTAR INDUSTRIES, INC., a Delaware corporation and
GIBRALTAR STEEL CORPORATION OF NEW YORK, a New York corporation (collectively, the “Borrowers”, and
individually, each a “Borrower”), jointly and severally, promise to pay, on the last day of the
Commitment Period, as defined in the Credit Agreement (as hereinafter defined), to the order of
                     (“Lender”), at the main office of KEYBANK NATIONAL ASSOCIATION, as the Administrative
Agent, as hereinafter defined, 127 Public Square, Cleveland, Ohio 44114-1306 the principal sum of




					
	 	 	 	 	 
	[
 

	 	  AND 00/100]  
	 
	 DOLLARS






or the aggregate unpaid principal amount of all Revolving Loans, as defined in the Credit
Agreement, made by Lender to the Borrowers pursuant to Section 2.2(a) of the Credit Agreement,
whichever is less (or, in the event of currency fluctuations on Alternate Currency Loans, such
greater amount as may be outstanding), in lawful money of the United States of America; provided
that Revolving Loans that are Alternate Currency Loans, as defined in the Credit Agreement, shall
be payable in the applicable Alternate Currency, as defined in the Credit Agreement, at the place
or places designated in the Credit Agreement. The Borrowers also agree to pay any additional
amount that is required to be paid pursuant to Section 12.22 of the Credit Agreement.



As used herein, “Credit Agreement” means the Fourth Amended and Restated Credit Agreement
dated as of October 11, 2011, among the Borrowers, the Lenders, as defined therein, KeyBank
National Association, as the lead arranger, sole book runner and administrative agent for the
Lenders (the “Administrative Agent”), JPMorgan Chase Bank, N.A. and Bank of America, N.A., as
co-syndication agents, and M&T Bank, RBS Citizens, National Association and HSBC Bank USA, National
Association, as co-documentation agents, as the same may from time to time be amended, restated or
otherwise modified. Each capitalized term used herein that is defined in the Credit Agreement and
not otherwise defined herein shall have the meaning ascribed to it in the Credit Agreement.



The Borrowers also promise to pay interest on the unpaid principal amount of each Revolving
Loan from time to time outstanding, from the date of such Revolving Loan until the payment in full
thereof, at the rates per annum that shall be determined in accordance with the provisions of
Section 2.4(a) of the Credit Agreement. Such interest shall be payable on each date provided for
in such Section 2.4(a); provided that interest on any principal portion that is not paid when due
shall be payable on demand.



The portions of the principal sum hereof from time to time representing Base Rate Loans and
LIBOR Fixed Rate Loans, interest owing thereon, and payments of principal and interest of any
thereof, shall be shown on the records of Lender by such method as Lender may generally
employ; provided that failure to make any such entry shall in no way detract from the obligations
of the Borrowers under this Note.


 


E-1









 





If this Note shall not be paid at maturity, whether such maturity occurs by reason of lapse of
time or by operation of any provision for acceleration of maturity contained in the Credit
Agreement, the principal hereof and the unpaid interest thereon shall bear interest, pursuant to
the terms of the Credit Agreement, until paid, at a rate per annum equal to the Default Rate. All
payments of principal of and interest on this Note shall be made in immediately available funds.



This Note is one of the Revolving Credit Notes referred to in the Credit Agreement and is
entitled to the benefits thereof. Reference is made to the Credit Agreement for a description of
the right of the undersigned to anticipate payments hereof, the right of the holder hereof to
declare this Note due prior to its stated maturity, and other terms and conditions upon which this
Note is issued.



The Borrowers hereby designate all Indebtedness and other obligations now or hereafter
incurred or otherwise outstanding under this Note, the Credit Agreement and the other Loan
Documents, as defined in the Credit Agreement, to be “Designated Senior Indebtedness” and “Senior
Indebtedness”, as each term is defined in the Subordinated Indenture.



Except as expressly provided in the Credit Agreement, each Borrower expressly waives
presentment, demand, protest and notice of any kind. This Note shall be governed by and construed
in accordance with the laws of the State of New York, without regard to conflicts of laws
provisions.



[Remainder of page intentionally left blank.]



 


E-2









 







JURY TRIAL WAIVER. EACH BORROWER, TO THE EXTENT PERMITTED BY LAW, HEREBY WAIVES ANY
RIGHT TO HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE, WHETHER SOUNDING IN CONTRACT, TORT OR
OTHERWISE, AMONG THE BORROWERS, THE ADMINISTRATIVE AGENT AND THE LENDERS, OR ANY THEREOF, ARISING
OUT OF, IN CONNECTION WITH, RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED AMONG THEM IN
CONNECTION WITH THIS NOTE OR ANY OTHER NOTE OR INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR
DELIVERED IN CONNECTION HEREWITH OR THE TRANSACTIONS RELATED THERETO.



	 	 	 	 	 
	 	 	GIBRALTAR INDUSTRIES, INC.
	 
	 	 	 	 
	 

	 	By:
	 	 
	 

	 	 	 
	 

	 	
	Name: 	 
	 

	 	 	 	 
	 

	 	
	Title: 	 
	 

	 	 	 	 
	 
	 	 	 	 
	 	 	GIBRALTAR STEEL CORPORATION OF NEW YORK
	 
	 	 	 	 
	 

	 	By:  
	 	 
	 

	 	 	 
	 

	 	
	Name: 	 
	 

	 	 	 	 
	 

	 	
	Title: 	 
	 

	 	 	 	 





 


E-3









 





EXHIBIT B

FORM OF

SWING LINE NOTE




			
	 	 	 
	$10,000,000
	 	October 11, 2011






FOR VALUE RECEIVED, the undersigned, GIBRALTAR INDUSTRIES, INC., a Delaware corporation and
GIBRALTAR STEEL CORPORATION OF NEW YORK, a New York corporation (collectively, the “Borrowers”, and
individually, each a “Borrower”), jointly and severally, promise to pay to the order of KEYBANK
NATIONAL ASSOCIATION (the “Swing Line Lender”) at the main office of KEYBANK NATIONAL ASSOCIATION,
as the Administrative Agent, as hereinafter defined, 127 Public Square, Cleveland, Ohio 44114-1306
the principal sum of



			
	 	 	 
	TEN MILLION AND 00/100 
	 
	 DOLLARS






or the aggregate unpaid principal amount of all Swing Loans, as defined in the Credit Agreement (as
hereinafter defined), made by the Swing Line Lender to the Borrowers pursuant to Section 2.2(c) of
the Credit Agreement, whichever is less, in lawful money of the United States of America on the
earlier of the last day of the Commitment Period, as defined in the Credit Agreement, or, with
respect to each Swing Loan, the Swing Loan Maturity Date applicable thereto.



As used herein, “Credit Agreement” means the Fourth Amended and Restated Credit Agreement
dated as of October 11, 2011, among the Borrowers, the Lenders, as defined therein, KeyBank
National Association, as the lead arranger, sole book runner and administrative agent for the
Lenders (the “Administrative Agent”), JPMorgan Chase Bank, N.A. and Bank of America, N.A., as
co-syndication agents, and M&T Bank, RBS Citizens, National Association and HSBC Bank USA, National
Association, as co-documentation agents, as the same may from time to time be amended, restated or
otherwise modified. Each capitalized term used herein that is defined in the Credit Agreement and
not otherwise defined herein shall have the meaning ascribed to it in the Credit Agreement.



The Borrowers also promise to pay interest on the unpaid principal amount of each Swing Loan
from time to time outstanding, from the date of such Swing Loan until the payment in full thereof,
at the rates per annum that shall be determined in accordance with the provisions of Section 2.4(b)
of the Credit Agreement. Such interest shall be payable on each date provided for in such Section
2.4(b); provided that interest on any principal portion that is not paid when due shall be payable
on demand.



The principal sum hereof from time to time, and the payments of principal and interest
thereon, shall be shown on the records of the Swing Line Lender by such method as the Swing Line
Lender may generally employ; provided that failure to make any such entry shall in no way detract
from the obligations of the Borrowers under this Note.


 


E-4









 





If this Note shall not be paid at maturity, whether such maturity occurs by reason of lapse of
time or by operation of any provision for acceleration of maturity contained in the Credit
Agreement, the principal hereof and the unpaid interest thereon shall bear interest, pursuant to
the terms of the Credit Agreement, until paid, at a rate per annum equal to the Default Rate. All
payments of principal of and interest on this Note shall be made in immediately available funds.



This Note is the Swing Line Note referred to in the Credit Agreement and is entitled to the
benefits thereof. Reference is made to the Credit Agreement for a description of the right of the
undersigned to anticipate payments hereof, the right of the holder hereof to declare this Note due
prior to its stated maturity, and other terms and conditions upon which this Note is issued.



The Borrowers hereby designate all Indebtedness and other obligations now or hereafter
incurred or otherwise outstanding under this Note, the Credit Agreement and the other Loan
Documents, as defined in the Credit Agreement, to be “Designated Senior Indebtedness” and “Senior
Indebtedness”, as each term is defined in the Subordinated Indenture.



Except as expressly provided in the Credit Agreement, each Borrower expressly waives
presentment, demand, protest and notice of any kind. This Note shall be governed by and construed
in accordance with the laws of the State of New York, without regard to conflicts of laws
provisions.



[Remainder of page intentionally left blank.]



 


E-5









 







JURY TRIAL WAIVER. EACH BORROWER, TO THE EXTENT PERMITTED BY LAW, HEREBY WAIVES ANY RIGHT TO
HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE, WHETHER SOUNDING IN CONTRACT, TORT OR OTHERWISE,
AMONG THE BORROWERS, THE ADMINISTRATIVE AGENT AND THE LENDERS, OR ANY THEREOF, ARISING OUT OF, IN
CONNECTION WITH, RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED AMONG THEM IN CONNECTION
WITH THIS NOTE OR ANY OTHER NOTE OR INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED IN
CONNECTION HEREWITH OR THE TRANSACTIONS RELATED THERETO.



	 	 	 	 	 
	 	 	GIBRALTAR INDUSTRIES, INC.
	 
	 	 	 	 
	 

	 	By:  
	 	 
	 

	 	 	 
	 

	 	
	Name: 	 
	 

	 	 	 	 
	 

	 	
	Title: 	 
	 

	 	 	 	 
	 
	 	 	 	 
	 	 	GIBRALTAR STEEL CORPORATION OF NEW YORK
	 
	 	 	 	 
	 

	 	By:
	 	 
	 

	 	 	 
	 

	 	
	Name: 	 
	 

	 	 	 	 
	 

	 	
	Title: 	 
	 

	 	 	 	 





 


E-6









 





EXHIBIT C

FORM OF

TERM NOTE




			
	 	 	 
	$                    
	 	October 11, 2011






FOR VALUE RECEIVED, the undersigned, GIBRALTAR INDUSTRIES, INC., a Delaware corporation, and
GIBRALTAR STEEL CORPORATION OF NEW YORK, a New York corporation (collectively, the “Borrowers”, and
individually, each a “Borrower”), jointly and severally, promise to pay to the order of
 _____ 

(“Lender”) at the main office of KEYBANK NATIONAL ASSOCIATION, as the Administrative Agent, as
hereinafter defined, 127 Public Square, Cleveland, Ohio 44114-1306 the principal sum of



			
	 	 	 
	[                                         AND 00/100] 
	 
	  DOLLARS






in lawful money of the United States of America in consecutive principal payments as set forth in
the Credit Agreement (as hereinafter defined).



As used herein, “Credit Agreement” means the Fourth Amended and Restated Credit Agreement
dated as of October 11, 2011, among the Borrowers, the Lenders, as defined therein, KeyBank
National Association, as the lead arranger, sole book runner and administrative agent for the
Lenders (the “Administrative Agent”), JPMorgan Chase Bank, N.A. and Bank of America, N.A., as
co-syndication agents, and M&T Bank, RBS Citizens, National Association and HSBC Bank USA, National
Association, as co-documentation agents, as the same may from time to time be amended, restated or
otherwise modified. Each capitalized term used herein that is defined in the Credit Agreement and
not otherwise defined herein shall have the meaning ascribed to it in the Credit Agreement.



The Borrowers also promise to pay interest on the unpaid principal amount of the Term Loan
from time to time outstanding, from the date of the Term Loan until the payment in full thereof, at
the rates per annum that shall be determined in accordance with the provisions of Section 2.4(c) of
the Credit Agreement. Such interest shall be payable on each date provided for in such Section
2.4(c); provided that interest on any principal portion that is not paid when due shall be payable
on demand.



The portions of the principal sum hereof from time to time representing Base Rate Loans and
Eurodollar Loans, interest owing thereon, and payments of principal and interest of any thereof,
shall be shown on the records of Lender by such method as Lender may generally employ; provided
that failure to make any such entry shall in no way detract from the obligations of the Borrowers
under this Note.



If this Note shall not be paid at maturity, whether such maturity occurs by reason of lapse of
time or by operation of any provision for acceleration of maturity contained in the Credit
Agreement, the principal hereof and the unpaid interest thereon shall bear interest, pursuant to
the terms of the Credit Agreement, until paid, at a rate per annum equal to the Default Rate. All
payments of principal of and interest on this Note shall be made in immediately available funds.


 


E-7









 





This Note is one of the Term Notes referred to in the Credit Agreement and is entitled to the
benefits thereof. Reference is made to the Credit Agreement for a description of the right of the
undersigned to anticipate payments hereof, the right of the holder hereof to declare this Note due
prior to its stated maturity, and other terms and conditions upon which this Note is issued.



The Borrowers hereby designate all Indebtedness and other obligations now or hereafter
incurred or otherwise outstanding under this Note, the Credit Agreement and the other Loan
Documents, as defined in the Credit Agreement, to be “Designated Senior Indebtedness” and “Senior
Indebtedness”, as each term is defined in the Subordinated Indenture.



Except as expressly provided in the Credit Agreement, each Borrower expressly waives
presentment, demand, protest and notice of any kind. This Note shall be governed by and construed
in accordance with the laws of the State of New York, without regard to conflicts of laws
provisions.



[Remainder of page intentionally left blank.]



 


E-8









 







JURY TRIAL WAIVER. EACH BORROWER, TO THE EXTENT PERMITTED BY LAW, HEREBY WAIVES ANY
RIGHT TO HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE, WHETHER SOUNDING IN CONTRACT, TORT OR
OTHERWISE, AMONG THE BORROWERS, THE ADMINISTRATIVE AGENT AND THE LENDERS, OR ANY THEREOF, ARISING
OUT OF, IN CONNECTION WITH, RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED AMONG THEM IN
CONNECTION WITH THIS NOTE OR ANY OTHER NOTE OR INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR
DELIVERED IN CONNECTION HEREWITH OR THE TRANSACTIONS RELATED THERETO.



	 	 	 	 	 
	 	 	GIBRALTAR INDUSTRIES, INC.
	 
	 	 	 	 
	 

	 	By:  
	 	 
	 

	 	 	 
	 

	 	
	Name: 	 
	 

	 	 	 	 
	 

	 	
	Title: 	 
	 

	 	 	 	 
	 
	 	 	 	 
	 	 	GIBRALTAR STEEL CORPORATION OF NEW YORK
	 
	 	 	 	 
	 

	 	By:
	 	 
	 

	 	 	 
	 

	 	
	Name: 	 
	 

	 	 	 	 
	 

	 	
	Title: 	 
	 

	 	 	 	 





 


E-9









 





EXHIBIT D

FORM OF

NOTICE OF LOAN




                                        , 20____




KeyBank National Association, as the Administrative Agent

127 Public Square

1800 Key Center

Cleveland, Ohio 44114-0616

Attention: Asset Based Lending




Ladies and Gentlemen:




The undersigned, GIBRALTAR INDUSTRIES, INC., a Delaware corporation, (the “Administrative
Borrower”) refers to the Fourth Amended and Restated Credit Agreement, dated as of October 11, 2011
(“Credit Agreement”, the terms defined therein being used herein as therein defined), among the
Administrative Borrower, GIBRALTAR STEEL CORPORATION OF NEW YORK, a New York corporation (together
with the Administrative Borrower, collectively, the “Borrowers”), the Lenders, as defined in the
Credit Agreement, KEYBANK NATIONAL ASSOCIATION, as the lead arranger, sole book runner and
administrative agent for the Lenders (the “Administrative Agent”), JPMorgan Chase Bank, N.A. and
Bank of America, N.A., as co-syndication agents, and M&T Bank, RBS Citizens, National Association
and HSBC Bank USA, National Association, as co-documentation agents, and hereby gives you notice,
pursuant to Section 2.6 of the Credit Agreement that the Borrowers hereby request [a Loan (the
“Proposed Loan”)][an interest change with respect to a portion of a Term Loan (the “Term Loan
Interest Change”)], and in connection therewith sets forth below the information relating to the
[Proposed Loan][Term Loan Interest Change] as required by Section 2.6 of the Credit Agreement:




	 	(a)	 	The Borrower requesting the [Proposed Loan][Term Loan Interest Change] is

_____.

	 
	 	(b)	 	The [Proposed Loan is to be][Term Loan Interest Change is for]:

a Revolving Loan
_____/ the Term Loan
_____. (Check one.)

	 
	 	(c)	 	The Business Day of the [Proposed Loan][Term Loan Interest Change] is _____, 20__.

	 
	 	(d)	 	The amount of the [Proposed Loan][Term Loan Interest Change] is
$_____.

	 
	 	(e)	 	The Proposed Loan is to be a:

Base Rate Loan _____/ Eurodollar Loan
_____/

Alternate Currency Loan
_____/ Swing Loan
_____. (Check one.)




 


E-10









 











	 	 	 	The Term Loan Interest Change is to be a:

Base Rate Loan
_____/ Eurodollar Loan
_____. (Check one.)

	 
	 	(f)	 	If the [Proposed Loan][Term Loan Interest Change]is a LIBOR Fixed Rate Loan,
the Interest Period requested is one month
_____, two months
_____, three months
_____, or
six months (Check one.)

	 
	 	(g)	 	If the Proposed Loan is an Alternate Currency Loan, the Alternate Currency
requested is
_____.






The undersigned hereby certifies on behalf of the Borrowers that the following statements are true
on the date hereof, and will be true on the date of the [Proposed Loan][Term Loan Interest Change]:




(i) the representations and warranties contained in each Loan Document are correct,
before and after giving effect to the [Proposed Loan][Term Loan Interest Change] and the
application of the proceeds therefrom, as though made on and as of such date;




(ii) no event has occurred and is continuing, or would result from such [Proposed
Loan][Term Loan Interest Change], or the application of proceeds therefrom, that constitutes
a Default or Event of Default; and




(iii) the conditions set forth in Section 2.6 and Article IV of the Credit Agreement
have been satisfied.



	 	 	 	 	 
	 	 	GIBRALTAR INDUSTRIES, INC.
	 
	 	 	 	 
	 

	 	By:  
	 	 
	 

	 	 	 
	 

	 	
	Name: 	 
	 

	 	 	 	 
	 

	 	
	Title: 	 
	 

	 	 	 	 





 


E-11









 





EXHIBIT E

FORM OF

COMPLIANCE CERTIFICATE




For Fiscal Quarter ended                                         




THE UNDERSIGNED HEREBY CERTIFIES THAT:



(1) I am the duly elected [President] or [Chief Financial Officer] of GIBRALTAR INDUSTRIES,
INC., a Delaware corporation (the “Administrative Borrower”, and together with GIBRALTAR STEEL
CORPORATION OF NEW YORK, a New York corporation, collectively, the “Borrowers”);



(2) I am familiar with the terms of that certain Fourth Amended and Restated Credit Agreement,
dated as of October 11, 2011, among the Borrowers, the lenders from time to time named on
Schedule 1 thereto (together with their respective successors and assigns, collectively,
the “Lenders”), as defined in the Credit Agreement, KEYBANK NATIONAL ASSOCIATION, as the
Administrative Agent, JPMorgan Chase Bank, N.A. and Bank of America, N.A., as co-syndication
agents, and M&T Bank, RBS Citizens, National Association and HSBC Bank USA, National Association,
as co-documentation agents (as the same may from time to time be amended, restated or otherwise
modified, the “Credit Agreement”, the terms defined therein being used herein as therein defined),
and the terms of the other Loan Documents, and I have made, or have caused to be made under my
supervision, a review in reasonable detail of the transactions and condition of the Companies
during the accounting period covered by the attached financial statements;



(3) The review described in paragraph (2) above did not disclose, and I have no knowledge of,
the existence of any condition or event that constitutes or constituted a Default or Event of
Default, at the end of the accounting period covered by the attached financial statements or as of
the date of this Certificate;



(4) The representations and warranties made by the Borrowers contained in each Loan Document
are true and correct as though made on and as of the date hereof; and



(5) Set forth on Attachment I hereto are calculations of the financial covenants set forth in
Section 5.7 of the Credit Agreement, and the calculation of Excess Cash Flow, which calculations
show compliance with the terms thereof.




IN WITNESS WHEREOF, I have signed this
certificate the
_____ day of
_____, 20
_____.



	 	 	 	 	 
	 	 	GIBRALTAR INDUSTRIES, INC.
	 
	 	 	 	 
	 

	 	By:  
	 	 
	 

	 	 	 
	 

	 	
	Name: 	 
	 

	 	 	 	 
	 

	 	
	Title: 	 
	 

	 	 	 	 





 


E-12









 





EXHIBIT F

FORM OF

ASSIGNMENT AND ACCEPTANCE AGREEMENT




DATE:                    




Reference is made to the Fourth Amended and Restated Credit Agreement, dated as of October 11,
2011 (as the same may from time to time be further amended, restated or otherwise modified, the
“Credit Agreement”), among GIBRALTAR INDUSTRIES, INC., a Delaware corporation and GIBRALTAR STEEL
CORPORATION OF NEW YORK, a New York corporation (collectively, the “Borrowers” and, individually,
each a “Borrower”), the lenders named on Schedule 1 thereto (together with their respective
successors and assigns, collectively, the “Lenders” and, individually, each a “Lender”), KEYBANK
NATIONAL ASSOCIATION, as the lead arranger, sole book runner and administrative agent for the
Lenders (the “Administrative Agent”), JPMorgan Chase Bank, N.A. and Bank of America, N.A., as
co-syndication agents, and M&T Bank, RBS Citizens, National Association and HSBC Bank USA, National
Association, as co-documentation agents. Capitalized terms used herein and not otherwise defined
herein shall have the meanings attributed to them in the Credit Agreement





 _____ 
(the “Assignor”) and
 _____ 
(the “Assignee”) hereby agree as follows:



1. The Assignor hereby sells and assigns to the Assignee without recourse and without
representation or warranty (other than as expressly provided herein), and the Assignee hereby
purchases and assumes from the Assignor, that interest in and to all of the Assignor’s rights and
obligations under the Credit Agreement as of the date hereof that represents the percentage
interest specified in Item 4 of Annex I (the “Assigned Share”) of all of the Assignor’s outstanding
rights and obligations under the Credit Agreement indicated in Item 4 of Annex I, including,
without limitation, all rights and obligations with respect to the Assigned Share of the Assignor’s
Commitment, the Loans, the Letters of Credit (including drawn and unreimbursed amounts), and the
Notes (if any) held by the Assignor. After giving effect to such sale and assignment, the
Assignee’s Commitment will be as set forth in Item 4 of Annex I.



2. The Assignor (a) represents and warrants that it is duly authorized to enter into and
perform the terms of this Assignment and Acceptance Agreement (this “Assignment Agreement”), that
it is the legal and beneficial owner of the interest being assigned by it hereunder and that such
interest is free and clear of any liens or security interests; (b) makes no representation or
warranty and assumes no responsibility with respect to any statements, warranties or
representations made in or in connection with the Credit Agreement or the other Loan Documents or
the execution, legality, validity, enforceability, genuineness, sufficiency or value of the Credit
Agreement or the other Loan Documents or any other instrument or document furnished pursuant
thereto; and (c) makes no representation or warranty and assumes no responsibility with respect to
the financial condition of the Borrowers or any of their Subsidiaries or the performance or
observance by the Borrowers or any of the other Credit Parties of any of their obligations under
the Credit Agreement or the other Loan Documents or any other instrument or document furnished
pursuant thereto.


 


E-13









 





3. The Assignee (a) represents and warrants that it is duly authorized to enter into and
perform the terms of this Assignment Agreement; (b) confirms that it has received a copy of the
Credit Agreement and the other Loan Documents, together with copies of the financial statements
referred to therein and such other documents and information as it has deemed appropriate to make
its own credit analysis and decision to enter into this Assignment Agreement; (c) agrees that it
will, independently and without reliance upon the Administrative Agent, the Assignor 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; (d) appoints and authorizes the Administrative Agent to take such action as agent on its
behalf and to exercise such powers under the Credit Agreement and the other Loan Documents as are
delegated to the Administrative Agent by the terms thereof, together with such powers as are
reasonably incidental thereto; (e) agrees that it will perform in accordance with the terms all of
the obligations that by the terms of the Credit Agreement are required to be performed by it as a
Lender; and (f) to the extent legally entitled to do so, attaches the forms described in Section
12.10(e) of the Credit Agreement.



4. Following the execution of this Assignment Agreement by the Assignor and the Assignee, an
executed original hereof (together with all attachments) will be delivered to the Administrative
Agent. The effective date of this Assignment Agreement shall be the date of execution hereof by
the Assignor, the Assignee and the consent hereof by the Administrative Agent and the receipt by
the Administrative Agent of the administrative fee referred to in Section 12.10(d) of the Credit
Agreement, unless otherwise specified in Item 5 of Annex I hereto (the “Settlement Date”).



5. Upon the delivery of a fully executed original hereof to the Administrative Agent, as of
the Settlement Date, (a) the Assignee shall be a party to the Credit Agreement and, to the extent
provided in this Assignment Agreement, have the rights and obligations of a Lender thereunder and
under the other Loan Documents, and (b) the Assignor shall, to the extent provided in this
Assignment Agreement, relinquish its rights and be released from its obligations under the Credit
Agreement and the other Loan Documents.



6. It is agreed that upon the effectiveness hereof, the Assignee shall be entitled to (a) all
interest on the Assigned Share of the Loans at the rates specified in Item 6 of Annex I, (b) all
facility fees (if applicable) on the Assigned Share of the Commitment at the rate specified in Item
7 of Annex I, and (c) all Letter of Credit fees (if applicable) on the Assignee’s participation in
all Letters of Credit at the rate specified in Item 8 of Annex I hereto, that, in each case, accrue
on and after the Settlement Date, such interest and, if applicable, facility fees and Letter of
Credit fees, to be paid by the Administrative Agent, upon receipt thereof from the Borrowers,
directly to the Assignee. It is further agreed that all payments of principal made by the
Borrowers on the Assigned Share of the Loans that occur on and after the Settlement Date will be
paid directly by Agent to the Assignee. Upon the Settlement Date, the Assignee shall pay to the
Assignor an amount specified by the Assignor in writing that represents the Assigned Share of the
principal amount of the respective Loans made by the Assignor pursuant to the Credit Agreement that
are outstanding on the Settlement Date, net of any closing costs, and that are being assigned
hereunder. The Assignor and the Assignee shall make all appropriate adjustments in payments
under the Credit Agreement for periods prior to the Settlement Date directly between themselves on
the Settlement Date.


 


E-14









 





7. THIS ASSIGNMENT AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS
OF THE STATE OF NEW YORK, WITHOUT REGARD TO ITS CONFLICT OF LAWS RULES.



IN WITNESS WHEREOF, the parties hereto have caused this Assignment Agreement to be executed by
their respective officers thereunto duly authorized, as of the date first above written.



	 	 	 	 	 
	 	 	[NAME OF THE ASSIGNOR]
	 
	 	 	 	 
	 

	 	By:  
	 	 
	 

	 	 	 
	 

	 	
	Name: 	 
	 

	 	 	 	 
	 

	 	
	Title: 	 
	 

	 	 	 	 
	 
	 	 	 	 
	 	 	[NAME OF ASSIGNEE]
	 
	 	 	 	 
	 

	 	By:  
	 	 
	 

	 	 	 
	 

	 	
	Name: 	 
	 

	 	 	 	 
	 

	 	
	Title: 	 
	 

	 	 	 	 






	 	 	 	 	 
	Acknowledged and Agreed:	 	 
	 
	 	 	 	 
	KEYBANK NATIONAL ASSOCIATION	 	 
	     as the Administrative Agent	 	 
	 
	 	 	 	 
	By:
	 	 	 	 
	

	 
Name: 	 

	 	 
	

	Title: 	 

	 	 
	 

	 	 

	 	 





 


E-15









 





ANNEX I

TO

ASSIGNMENT AND ASSUMPTION AGREEMENT





	1.	 	The Borrowers:









GIBRALTAR INDUSTRIES, INC. and GIBRALTAR STEEL CORPORATION OF NEW YORK





	2.	 	Name and Date of Credit Agreement:









Fourth Amended and Restated Credit Agreement dated as of October 11, 2011,
among Gibraltar Industries, Inc., Gibraltar Steel Corporation of New York, KeyBank
National Association, as the lead arranger, sole book runner and administrative
agent for the Lenders, JPMorgan Chase Bank, N.A. and Bank of America, N.A., as
co-syndication agents, M&T Bank, RBS Citizens, National Association and HSBC Bank
USA, National Association, as co-documentation agents, and the Lenders named
therein.




	3.	 	Date of Assignment Agreement:









_________ ___, 20_____





	4.	 	Amounts (as of date of item #3 above):








	 	 	 	 	 	 	 	 	 
	 	 	Commitment	 	 	Loans	 
	Aggregate Amount for all Lenders
	 	$	                  	 	 	$	                  	 
	Assigned Share
	 	 	                  	%	 	 	                  	%
	Amount of Assigned Share
	 	$	                  	 	 	$	                  	 
	Amount Retained by the Assignor
	 	$	                  	 	 	$	                  	 







	5.	 	Settlement Date:









_________ ___, _____





				
	6.	 Rate of Interest

to the Assignee:	 	 

As set forth in Section 2.4 of the Credit Agreement (unless
otherwise agreed to by the Assignor and the Assignee).

	 
	7.	 Facility
Fee:	 	As set forth in Section 2.9(a) of the
Credit Agreement (unless otherwise agreed
to by the Assignor and the Assignee).





 


E-16









 






				
	8.	Letter of Credit Fees:	 	As set forth in Section 2.2(b) of the
Credit Agreement (unless otherwise agreed
to by the Assignor and the Assignee).








	9.	 	Notices:








	 	 	 
	ASSIGNOR:

	 	ASSIGNEE:
	 
	 	 
	 

	 	 
	 
	 	 
	 

	 	 
	 
	 	 
	 

	 	 
	Attention:

	 	Attention:
	Telephone No.:

	 	Telephone No.:
	Facsimile No.:

	 	Facsimile No.:






	10.	 	Payment Instructions:









	 	 	 
	ASSIGNOR:

	 	ASSIGNEE:
	 
	 	 
	 

	 	 
	 
	 	 
	 

	 	 
	 
	 	 
	 

	 	 
	ABA No.

	 	ABA No.
	Account No.:

	 	Account No.:
	Reference:

	 	Reference:
	Attention:

	 	Attention:
	Telephone No.:

	 	Telephone No.:
	Facsimile No.:

	 	Facsimile No.:






 


E-17









 







SCHEDULE 1




COMMITMENTS OF LENDERS




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	REVOLVING	 	 	REVOLVING	 	 	 	 	 	 	 	 	 	 
	 	 	CREDIT	 	 	CREDIT	 	 	TERM LOAN	 	 	TERM LOAN	 	 	 	 
	 	 	COMMITMENT	 	 	COMMITMENT	 	 	COMMITMENT	 	 	COMMITMENT	 	 	MAXIMUM	 
	LENDERS	 	PERCENTAGE	 	 	AMOUNT	 	 	PERCENTAGE	 	 	AMOUNT	 	 	AMOUNT	 
	KeyBank National Association
	 	 	14.47	%	 	$	28,936,170.21	 	 	 	14.47	%	 	$	5,063,829.79	 	 	$	34,000,000.00	 
	M&T Bank
	 	 	12.34	%	 	$	24,680,851.06	 	 	 	12.34	%	 	$	4,319,148.94	 	 	$	29,000,000.00	 
	JPMorgan Chase Bank, N.A.
	 	 	12.34	%	 	$	24,680,851.06	 	 	 	12.34	%	 	$	4,319,148.94	 	 	$	29,000,000.00	 
	Bank of America, N.A.
	 	 	12.34	%	 	$	24,680,851.06	 	 	 	12.34	%	 	$	4,319,148.94	 	 	$	29,000,000.00	 
	RBS Citizens, National Association
	 	 	12.34	%	 	$	24,680,851.06	 	 	 	12.34	%	 	$	4,319,148.94	 	 	$	29,000,000.00	 
	HSBC Bank USA, National Association
	 	 	10.64	%	 	$	21,276,595.74	 	 	 	10.64	%	 	$	3,723,404.26	 	 	$	25,000,000.00	 
	First Niagara Bank, N.A.
	 	 	8.51	%	 	$	17,021,276.60	 	 	 	8.51	%	 	$	2,978,723.40	 	 	$	20,000,000.00	 
	PNC Bank, National Association
	 	 	6.38	%	 	$	12,765,957.45	 	 	 	6.38	%	 	$	2,234,042.55	 	 	$	15,000,000.00	 
	Comerica Bank
	 	 	6.38	%	 	$	12,765,957.45	 	 	 	6.38	%	 	$	2,234,042.55	 	 	$	15,000,000.00	 
	TriState Capital Bank
	 	 	4.26	%	 	$	8,510,638.30	 	 	 	4.26	%	 	$	1,489,361.70	 	 	$	10,000,000.00	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Total Commitment Amount
	 	 	100	%	 	$	200,000,000.00	 	 	 	100	%	 	$	35,000,000.00	 	 	$	235,000,000.00	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 






 


S-1









 







SCHEDULE 2




GUARANTORS OF PAYMENT




Air Vent Inc., a Delaware corporation




Alabama Metal Industries Corporation, a Delaware corporation




AMICO Holding Company, Inc., a Delaware corporation




Appleton Supply Co., Inc., a Delaware corporation




Construction Metals, LLC, a California limited liability company




Diamond Perforated Metals, Inc., a California corporation




The D.S. Brown Company, an Ohio corporation




D.S.B. Holding Corp., a Delaware corporation




Florence Corporation, an Illinois corporation




Florence Corporation of Kansas, a Kansas corporation




Gibraltar Strip Steel, Inc., a Delaware corporation




Noll/Norwesco, LLC, a Delaware limited liability company




Pacific Award Metals, Inc., a California corporation




Sea Safe, Inc., a Louisiana corporation




Solar Group, Inc., a Delaware corporation




Solar of Michigan, Inc., a Delaware corporation




Southeastern Metals Manufacturing Company, Inc., a Florida corporation


 


S-2












 





SCHEDULE 2.2




EXISTING LETTERS OF CREDIT




	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	Current	 	 	Expiry	 	 
	Alias	 	Borrower	 	Amount	 	 	Date	 	Beneficiary
	S310867000A
	 	Alabama Metal Industries Corporation	 	 	50,000.00	 	 	11/14/11	 	United States Fire Insurance
	S310868000A
	 	Alabama Metal Industries Corporation	 	 	300,000.00	 	 	11/14/11	 	Lumbermen’s Underwriting
	S310869000A
	 	Alabama Metal Industries Corporation	 	 	779,390.00	 	 	11/14/11	 	Liberty Mutual Insurance Company
	CPCS828459
	 	Florence Corporation of Kansas	 	 	4,846,028.38	 	 	4/15/12	 	U.S. Bank National Association, as Trustee
	S321771000A
	 	Florence Corporation of Kansas	 	 	76,500.00	 	 	1/30/12	 	Royal Touch
	S321786000A
	 	Florence Corporation of Kansas	 	 	80,000.00	 	 	2/10/12	 	Jindal
	S320351000A
	 	Gibraltar Industries, Inc.	 	 	1,700,000.00	 	 	12/31/12	 	Travelers Indemnity Co
	S321574000A
	 	Gibraltar Industries, Inc.	 	 	1,000,000.00	 	 	3/30/12	 	Acstar
	S321575000A
	 	Gibraltar Industries, Inc.	 	 	100,000.00	 	 	3/30/12	 	Acstar
	S321723000A
	 	Gibraltar Industries, Inc.	 	 	90,000.00	 	 	12/30/12	 	Alom
	S310073000A
	 	Gibraltar Steel Corporation of New York	 	 	220,000.00	 	 	4/2/12	 	Federal Insurance Company
	S310242000A
	 	Gibraltar Steel Corporation of New York	 	 	4,350,000.00	 	 	4/16/12	 	Employers Insurance of W. Binkley
	S310264000A
	 	Gibraltar Steel Corporation of New York	 	 	700,000.00	 	 	4/23/12	 	Zurich American Insurance
	S310718000A
	 	Gibraltar Steel Corporation of New York	 	 	50,000.00	 	 	9/13/12	 	North River Insurance Co






All Existing Letters of Credit have been issued by KeyBank, other than Alias CPCS828459 which was
issued by JPMorgan Chase.


 


S-3









 





SCHEDULE 2.14




DESIGNATED HEDGE AGREEMENTS




None as of the Closing Date.


 


S-4









 





SCHEDULE 3




BORROWING BASE COMPANIES




Air Vent Inc.

Alabama Metal Industries Corporation

AMICO Holding Company, Inc.

Appleton Supply Company, Inc.

Construction Metals, LLC

Diamond Perforated Metals, Inc.

The D.S. Brown Company

D.S.B. Holding Corp.

Florence Corporation

Noll/Norwesco, LLC

Pacific Award Metals, Inc.

Sea Safe, Inc.

Solar Group, Inc.

Southeastern Metals Manufacturing Company, Inc.



 


S-5









 





SCHEDULE 4




REAL PROPERTY




The following parcels of real property owned by the Borrowers and/or the Subsidiaries that are
subject to a Mortgage or Deed of Trust as required pursuant to the terms of the Agreement:




	(a)	 	3011 70th Avenue East, Fife Washington 98424

	 
	(b)	 	1320 Performance Drive, Stockton, California 95206

	 
	(c)	 	107 Fellowship Road, Taylorville, Mississippi 39168

	 
	(d)	 	3240 & 3245 Fayette Avenue, Birmingham, Alabama 35208

	 
	(e)	 	11093 Beach Avenue, Fontana, California 92335

	 
	(f)	 	7300 W. Sunnyview Avenue, Visalia, California 93291

	 
	(g)	 	825 County Road 606, Dayton, Texas 77535

	 
	(h)	 	212 North 1330 West Street, Orem, Utah 84059

	 
	(i)	 	418 N. Front Street, Orrick, Missouri 64077

	 
	(j)	 	1710 South 21st Street, Clinton, Iowa 52732

	 
	(k)	 	1905 West Haskell Street, Appleton, Wisconsin 54914

	 
	(l)	 	927 South Grider Street, Appleton, Wisconsin 54914

	 
	(m)	 	300 E. Cherry Street, North Baltimore, Ohio 45872





 


S-6









 





SCHEDULE 5




PLEDGED SECURITIES




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	Total	 	 	 	 	 	 	 	 	 
	 	 	 	 	Shares/Equity	 	Ownership	 	 	 	 	 	 	 
	 	 	 	 	Interests	 	Percentage	 	 	Certificate No.	 	 	% of Interest	 
	Credit Party	 	Issuer	 	Outstanding	 	of the Pledgor	 	 	(if any)	 	 	Pledged	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Gibraltar Steel Corporation of New York
	 	Air Vent Inc.	 	249	 	 	100	%	 	 	7	 	 	 	100	%
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Gibraltar Steel Corporation of New York
	 	Solar of Michigan, Inc.	 	100	 	 	100	%	 	 	1	 	 	 	100	%
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Gibraltar Steel Corporation of New York
	 	Southeastern Metals Manufacturing Company, Inc.	 	252,021.7891	 	 	100	%	 	 	217	 	 	 	100	%
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Gibraltar Steel Corporation of New York
	 	Gibraltar Strip Steel, Inc.	 	5 shares of Class A	 	 	100	%	 	 	21	 	 	 	100	%
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	5 shares of Class B	 	 	 	 	 	 	22	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Gibraltar Steel Corporation of New York
	 	GSC Flight Services Corp.	 	100 shares	 	 	100	%	 	 	1	 	 	 	100	%
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Gibraltar Industries, Inc.
	 	Appleton Supply Co., Inc.	 	1,000	 	 	100	%	 	 	1	 	 	 	100	%
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Gibraltar Industries, Inc.
	 	Florence Corporation	 	2,440	 	 	100	%	 	 	182	 	 	 	100	%
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Gibraltar Industries, Inc.
	 	Gibraltar Steel Corporation of New York	 	101	 	 	100	%	 	 	C-24	 	 	 	100	%
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Gibraltar Industries, Inc.
	 	Solar Group, Inc.	 	1,000	 	 	100	%	 	 	1	 	 	 	100	%





 


S-7









 





	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	Total	 	 	 	 	 	 	 	 	 
	 	 	 	 	Shares/Equity	 	Ownership	 	 	 	 	 	 	 
	 	 	 	 	Interests	 	Percentage	 	 	Certificate No.	 	 	% of Interest	 
	Credit Party	 	Issuer	 	Outstanding	 	of the Pledgor	 	 	(if any)	 	 	Pledged	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Gibraltar Industries, Inc.
	 	Gibraltar Industries Germany GmbH**	 	€25,000	 	 	100	%	 	None	 	 	*	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Gibraltar Industries, Inc.
	 	Gibraltar Industries (UK) Limited**	 	1 Ordinary Share	 	 	100	%	 	 	2	 	 	 	*	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Gibraltar Industries, Inc.
	 	AMICO Holding Company, Inc.	 	500	 	 	100	%	 	 	1	 	 	 	100	%
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Gibraltar Industries, Inc.
	 	D.S. B. Holding Corp.	 	66,749.90 Common	 	 	100	%	 	 	10	 	 	 	100	%
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	65,750.10 Preferred	 	 	 	 	 	 	P-10	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	D.S. B. Holding Corp.
	 	The D.S. Brown Company	 	1,000	 	 	100	%	 	 	1	 	 	 	100	%
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	AMICO Holding Company, Inc.
	 	Alabama Metal Industries Corporation	 	110	 	 	100	%	 	28 and 29	 	 	100	%
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Southeastern Metals Manufacturing Company, Inc.
	 	Pacific Award Metals, Inc.	 	192,000	 	 	100	%	 	 	34	 	 	 	100	%
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Member: Pacific Award Metals, Inc.
	 	Construction Metals, LLC	 	100%	 	 	100	%	 	None	 	 	100	%
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Member: Pacific Award Metals, Inc.
	 	Noll/Norwesco, LLC	 	100%	 	 	100	%	 	 	2	 	 	 	100	%
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 





 


S-8









 





	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	Total	 	 	 	 	 	 	 	 	 
	 	 	 	 	Shares/Equity	 	Ownership	 	 	 	 	 	 	 
	 	 	 	 	Interests	 	Percentage	 	 	Certificate No.	 	 	% of Interest	 
	Credit Party	 	Issuer	 	Outstanding	 	of the Pledgor	 	 	(if any)	 	 	Pledged	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Alabama Metal Industries Corporation
	 	Diamond Perforated Metals, Inc.	 	1,000,000	 	 	100	%	 	 	7	 	 	 	100	%
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Alabama Metal Industries Corporation
	 	Sea Safe, Inc.	 	15,008 Common Stock	 	 	100	%	 	 	56	 	 	 	100	%
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Alabama Metal Industries Corporation
	 	AMICO Canada, Inc.**	 	1,750,000	 	 	100	%	 	 	C-1	 	 	 	*	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Florence Corporation
	 	Florence Corporation of Kansas	 	2,490	 	 	100	%	 	 	1	 	 	 	100	%








	 	 	 
	*	 	100% of non-voting shares and equity interests and 65% of voting shares or equity interest
constitute Pledged Securities

	 
	**	 	Foreign Subsidiaries



 


S-9









 









SCHEDULE 5.8




INDEBTEDNESS





	1.	 	Lease Agreement by and between the City of Manhattan, Kansas and Florence of Kansas dated
as of April 1, 2003, as amended, which as of the Closing Date has an outstanding balance of
$4,816,000.

	 
	2.	 	Two capitalized leases for forklifts entered into by Pacific Award Metals, Inc. with a
current outstanding balance of $27,262.





 


S-10









 





SCHEDULE 5.9




LIENS





	(a)	 	Liens in connection with a certain Collateral Assignment of Lease from Florence Corporation of
Kansas to JP Morgan Chase Bank, N.A., dated as of April 1, 2010.

	 
	(b)	 	Liens referenced on the attached UCC search chart.





 


S-11









 





GIBRALTAR




	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	Juris-	 	 	 	UCC Filing No./Filing	 	 
	Debtor	 	State	 	diction	 	Secured Party	 	Date	 	Collateral
	Gibraltar Industries, Inc.

	 	DE
	 	SOS
	 	De Lage Landen Financial Services, Inc.
	 	File No: 50184714

File Date: 1/17/05


Continuation: 
File
No.: 94139389

File Date: 12/28/09
	 	Leased Equipment pursuant to Master Lease #514
	Gibraltar Industries, Inc.

	 	DE
	 	SOS
	 	Pacific Rim Capital, Inc. 











Assignee: Pullman Bank & Trust
	 	File No: 50665894

File Date: 3/2/05


Amendment: 50671439

File Date: 3/2/05


Amendment: 50672569

File Date: 3/2/05


Assignment: 52887140
File Date: 9/19/05


Continuation: 
File
No.: 00456321

File Date: 2/11/10
	 	Leased Equipment pursuant to Master Lease Equipment Schedule #2; Computers, Fork Trucks & various equipment


Filed for informational and precautionary purposes
	Gibraltar Industries, Inc.

	 	DE
	 	SOS
	 	Pacific Rim Capital, Inc. 

Assignee: Pullman Bank & Trust 








Assignee: U.S. Bank National Association
	 	File No: 50814641

File Date: 3/15/05


Assignment: 52879295

File Date: 9/19/05


Continuation: 
File
No.: 00513659

File Date: 2/17/10


Assignment: 
File
No.: 01166333

File Date:4/6/10
	 	Leased Equipment pursuant to Master Lease Equipment Schedule #3; Forklifts and related equipment


Filed for informational and precautionary purposes





 


S-12









 





	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	Juris-	 	 	 	UCC Filing No./Filing	 	 
	Debtor	 	State	 	diction	 	Secured Party	 	Date	 	Collateral
	Gibraltar Industries, Inc.

	 	DE
	 	SOS
	 	Pacific Rim Capital, Inc. 


Assignee: Pullman Bank & Trust 







Assignee: U S Bank National Association
	 	File No: 51791905

File Date: 6/10/05


Assignment: 53896645

File Date: 12/15/05


Continuation: 
File
No.: 02033664

File Date: 6/10/10


Assignment: 
File
No.: 02156150

File Date: 6/10/10
	 	Leased Equipment pursuant to Master Lease Equipment Schedule #4; EASi Reach Trucks and related equipment


Filed for informational and precautionary purposes
	Gibraltar Industries, Inc.

	 	DE
	 	SOS
	 	Pacific Rim Capital, Inc. 

Assignee: Park National Bank 








Assignee: U S Bank National Association
	 	File No: 52796184

File Date: 9/9/05


Assignment: 60147462

File Date: 1/13/06


Continuation: 
File
No.: 01127970

File Date: 4/1/10


Assignment: 
File
No.: 02806259

File Date: 8/3/10
	 	Leased Equipment pursuant to Master Lease Equipment Schedule #5; Forklift and related equipment


Filed for informational and precautionary purposes
	Gibraltar Industries, Inc.

	 	DE
	 	SOS
	 	Pacific Rim Capital, Inc. 


Assignee: Banc of America Leasing & Capital, LLC
	 	File No: 73143798

File Date: 8/17/07


Assignment: 
File
No.: 73643029

File Date: 8/28/07
	 	Leased Equipment pursuant to Mater Lease Agreement No. 2039-00; Forktrucks, Walkies, Batteries, Chargers, Sweepers, Scrubbers and related
equipment 


Filed for informational and precautionary purposes
	Gibraltar Industries, Inc.

	 	DE
	 	SOS
	 	International Technologies, Inc.
	 	File No: 74531330

File Date: 11/30/07
	 	Specific Equipment; My Spot Model NK-21HE810-M-EZ, with Oxidation Prevention System and Accessory Tool Kit





 


S-13









 





	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	Juris-	 	 	 	UCC Filing No./Filing	 	 
	Debtor	 	State	 	diction	 	Secured Party	 	Date	 	Collateral
	Gibraltar Industries, Inc.

	 	DE
	 	SOS
	 	The Worthington Steel Company, LLC
	 	File No: 00354179

File Date: 2/2/10
	 	All equipment in the Buffalo Facility as defined in that certain Asset Purchase Agreement dated as of 1/26/10
	 
	 	 	 	 	 	 	 	 	 	 
	Gibraltar Steel Corporation of New York

	 	NY
	 	SOS
	 	Original Secured Party: Outokumpu American Brass, Inc.





Amended Secured Party: Luvata Buffalo, Inc.
	 	File No: 182281

File Date: 9/24/01


Continuation: 
20060710585722
File
Date: 7/17/06


Amendment: 
200607200595530

File
Date: 7/20/06
	 	Metal products owned by Secured Party and delivered to Debtor on bailment and/or on consignment processing
	Gibraltar Steel Corporation of New York

	 	NY
	 	SOS
	 	Arcelormittal USA Inc.
	 	File No: 200812220839993

File Date: 12/22/08
	 	Steel in sheets, strips, coils, plates, bars and/or slabs and other steel inventory in Debtor’s possession, together with all proceeds of the
foregoing, in any form
	 
	 	 	 	 	 	 	 	 	 	 
	Air Vent, Inc.

	 	DE
	 	SOS
	 	Toyota Motor Credit Corporation
	 	File No: 93332340

File Date: 10/16/09
	 	Specific Equipment; Forklifts
	Air Vent, Inc.

	 	DE
	 	SOS
	 	Toyota Motor Credit Corporation
	 	File No: 93374813

File Date: 10/20/09
	 	Specific Equipment; Genie Lift
	Air Vent, Inc.

	 	DE
	 	SOS
	 	Toyota Motor Credit Corporation
	 	File No: 94130289

File Date: 12/24/09
	 	Specific Equipment; Forklifts
	Air Vent, Inc.

	 	De
	 	SOS
	 	Wells Fargo Bank, N.A.
	 	File No: 03655416

File Date: 10/19/10
	 	Specific Equipment; Forklifts
Notice filing only
	 
	 	 	 	 	 	 	 	 	 	 
	Alabama Metal Industries Corporation

	 	DE
	 	SOS
	 	NMHG Financial Services Inc.
	 	File No: 43349117

File Date: 11/30/04

Continuation: 91984043

File Date: 6/22/09
	 	Leased Equipment

In-lieu filing





 


S-14









 





	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	Juris-	 	 	 	UCC Filing No./Filing	 	 
	Debtor	 	State	 	diction	 	Secured Party	 	Date	 	Collateral
	Alabama Metal Industries Corporation

	 	DE
	 	SOS
	 	De Lage Landen Financial Services, Inc.
	 	File No: 62264968

File Date: 6/30/06


Continuation: 
File
No.: 12011396

File Date: 5/26/11
	 	Leased Equipment; Combilift Lifttrucks


Filing is for precautionary purposes
	Alabama Metal Industries Corporation

	 	DE
	 	SOS
	 	De Lage Landen Financial Services, Inc.
	 	File No: 62885267

File Date: 8/18/06


Continuation: 
File
No.: 62885267

File Date: 6/30/11
	 	Specific Equipment; Forklift
	Alabama Metal Industries Corporation

	 	DE
	 	SOS
	 	Toyota Motor Credit Corp
	 	File No: 63392842

File Date: 9/30/06
	 	Leased Equipment; Toyota model 7FDU45


Filed as a precaution
	Alabama Metal Industries Corporation

	 	DE
	 	SOS
	 	De Lage Landen Financial Services, Inc.
	 	File No: 63885936

File Date: 11/7/06
	 	Leased Equipment; Forklift


Filing is for precautionary purposes
	Alabama Metal Industries Corp.

	 	DE
	 	SOS
	 	Toyota Motor Credit Corporation
	 	File No: 64270369

File Date: 12/7/06
	 	Leased Equipment; Toyota model 7FGCU35


Filed as a precaution
	Alabama Metal Industries Corporation

	 	DE
	 	SOS
	 	Toyota Motor Credit Corp
	 	File No: 70159797

File Date: 1/12/07
	 	Leased Equipment Toyota model 7FGCU35


Filed as a precaution
	Alabama Metal Industries Corporation

	 	DE
	 	SOS
	 	NMHG Financial Services Inc.
	 	File No: 72500774

File Date: 7/2/07
	 	Leased Equipment
	Alabama Metal Industries Corporation

	 	DE
	 	SOS
	 	Pacific Rim Capital, Inc.
	 	File No: 73558813

File Date: 9/20/07
	 	Leased Equipment; Forklift





 


S-15









 





	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	Juris-	 	 	 	UCC Filing No./Filing	 	 
	Debtor	 	State	 	diction	 	Secured Party	 	Date	 	Collateral
	Alabama Metal Industries Corporation

	 	DE
	 	SOS
	 	Toyota Motor Credit Corporation
	 	File No: 74672506

File Date: 12/11/07
	 	Leased Equipment; Forklift


Filed as a precaution
	Alabama Metal Industries Corporation

	 	DE
	 	SOS
	 	Toyota Motor Credit Corporation
	 	File No: 80028553

File Date: 1/3/08
	 	Leased Equipment; Forklift


Filed as a precaution
	Alabama Metal Industries Corporation

	 	DE
	 	SOS
	 	FCC Equipment Financing, Inc.
	 	File No: 81622420

File Date: 5/9/08
	 	Specific Equipment; Lift Truck
	Alabama Metal Industries Corporation

	 	DE
	 	SOS
	 	Pacific Rim Capital, Inc.
	 	File No: 83652383

File Date: 10/30/08
	 	Leased Equipment; Combilift Model C8000L
	Alabama Metal Industries Corporation

	 	DE
	 	SOS
	 	Key Equipment Finance, Inc.
	 	File No: 84166391

File Date: 12/16/08
	 	Specific Equipment; Tarping system, flatbed trailers
	Alabama Metal Industries Corporation

	 	DE
	 	SOS
	 	Banc of America Leasing & Capital, LLC
	 	File No: 92017579

File Date: 6/24/09


Amendment: 
File
No.: 03083692

File Date: 9/2/10
	 	Leased Equipment; 13 trailers with attachments
	Alabama Metal Industries Corporation
**“Corporation” was left off name on filing**

	 	DE
	 	SOS
	 	Signode Packaging Systems Sales
	 	File No: 92260021

File Date: 7/14/09
	 	Consigned Inventory; Signode packaging materials
	Alabama Metal Industries Corporation

	 	DE
	 	SOS
	 	Toyota Motor Credit Corporation
	 	File No: 92595590

File Date: 8/12/09
	 	Leased Equipment; Forklift


Filed as a precaution
	Alabama Metal Industries Corporation

	 	DE
	 	SOS
	 	Banc of America Leasing & Capital, LLC
	 	File No: 93428577

File Date: 10/26/09
	 	Leased Equipment; Forklift


Filed as a precaution
	Alabama Metal Industries Corporation

	 	DE
	 	SOS
	 	Banc of America Leasing & Capital, LLC
	 	File No: 93688535

File Date: 11/17/09


Amendment: 
File
No: 93692784

File Date: 11/17/09
	 	Leased Equipment; 7 Forklifts


Filed as a precaution





 


S-16









 





	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	Juris-	 	 	 	UCC Filing No./Filing	 	 
	Debtor	 	State	 	diction	 	Secured Party	 	Date	 	Collateral
	Alabama Metal Industries Corporation

	 	DE
	 	SOS
	 	Samuel Strapping Systems
	 	File No: 00850457

File Date: 11/17/09
	 	Leased Equipment; Strapping machine
	Alabama Metal Industries Corporation

	 	DE
	 	SOS
	 	Samuel Strapping Systems
	 	File No: 02517302

File Date: 7/20/10
	 	Leased Equipment; 8 strapping machines
	Alabama Metal Industries Corporation

	 	DE
	 	SOS
	 	Toyota Motor Credit Corporation
	 	File No: 02700312

File Date: 8/3/10
	 	Specific Equipment; 3 Forklifts


Filed as a precaution
	Alabama Metal Industries Corporation

	 	DE
	 	SOS
	 	Toyota Motor Credit Corporation
	 	File No: 10150071

File Date: 1/13/11
	 	Specific Equipment; Toyota Model 7FGU45


Filed for informational purposes
	Alabama Metal Industries Corporation

	 	DE
	 	SOS
	 	Toyota Motor Credit Corporation
	 	File No: 10151236

File Date: 1/13/11
	 	Specific Equipment; Toyota Model 7FGU45


Filed for informational purposes
	Alabama Metal Industries Corporation

	 	DE
	 	SOS
	 	Toyota Motor Credit Corporation
	 	File No: 10159890

File Date: 1/14/11
	 	Specific Equipment; 3 Toyota 8FGU30


Filed for informational purposes
	Alabama Metal Industries Corporation

	 	DE
	 	SOS
	 	Toyota Motor Credit Corporation
	 	File No: 10164759

File Date: 1/14/11
	 	Specific Equipment; Toyota model 7FGAU50


Filed for informational purposes
	Alabama Metal Industries Corporation

	 	DE
	 	SOS
	 	Toyota Motor Credit Corporation
	 	File No: 10168511

File Date: 1/14/11
	 	Specific Equipment; Toyota 7FAU50


Filed for informational purposes





 


S-17









 





	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	Juris-	 	 	 	UCC Filing No./Filing	 	 
	Debtor	 	State	 	diction	 	Secured Party	 	Date	 	Collateral
	Appleton Supply Company, Inc.

	 	DE
	 	SOS
	 	NMHG Financial Services Inc.
	 	File No: 51250720

File Date: 4/22/05


Continuation: 
File
No: 00423065

File Date: 2/8/10
	 	Leased Equipment


In-lieu filing
	Appleton Supply Company, Inc.

	 	DE
	 	SOS
	 	Key Equipment Finance Inc. 


Assignee: 

All Points Capital Corp.
	 	File No: 00519177

File Date: 2/17/10


Assignment: 
File
No: 00423065

File Date: 4/9/10
	 	Specific equipment; Flatbed & related equipment
	Appleton Supply Company, Inc.

	 	DE
	 	SOS
	 	All Points Capital Corp. DBA Capital One Equipment Leasing &
Finance
	 	File No: 01234107

File Date: 4/9/10
	 	Specific equipment; 7 Flatbed trailers & related equipment
	Appleton Supply Company, Inc.

	 	DE
	 	SOS
	 	Toyota Motor Credit Corporation
	 	File No: 02178329

File Date: 6/22/10
	 	Leased Equipment; Forklift
	Appleton Supply Company, Inc.

	 	DE
	 	SOS
	 	Wells Fargo Bank, N.A.
	 	File No: 10692890

File Date: 2/24/11
	 	Specific equipment; Forklift
	 
	 	 	 	 	 	 	 	 	 	 
	Construction Metals, LLC

	 	CA
	 	SOS
	 	Toyota Motor Credit Corporation
	 	File No: 067088859243

File Date: 10/17/06
	 	Leased Equipment; Forklift
For informational purposes only
	 
	 	 	 	 	 	 	 	 	 	 
	Diamond Perforated Metals, Inc.

	 	CA
	 	SOS
	 	Finelite, Inc.
	 	File No: 087147050416

File Date: 2/6/08
	 	Specific Equipment; Reflectors; Die; Tools
	 
	 	 	 	 	 	 	 	 	 	 
	The D.S. Brown Company

	 	OH
	 	SOS
	 	US Bancorp
	 	File No: OH00110360782

File Date: 12/28/06
	 	Specific Equipment; Copiers
For informational purposes only





 


S-18









 





	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	Juris-	 	 	 	UCC Filing No./Filing	 	 
	Debtor	 	State	 	diction	 	Secured Party	 	Date	 	Collateral
	The D.S. Brown Company

	 	OH
	 	SOS
	 	US Bancorp
	 	File No: 
OH00120797062

File Date: 11/2/07
	 	Specific Equipment


For informational purposes only
	The D.S. Brown Company

	 	OH
	 	SOS
	 	Duramax Marine LLC
	 	File No: 
OH00125648062

File Date:4/10/08
	 	Certain Duramax tooling, molds, patterns, drawings and other proprietary information listed on Exhibit A solely used to make products for Duramax
	The D.S. Brown Company

	 	OH
	 	SOS
	 	US Bancorp
	 	File No: 
OH00125813669

File Date: 4/17/08
	 	Specific Equipment


For informational purposes only
	The D.S. Brown Company

	 	OH
	 	SOS
	 	NMHG Financial Services, Inc.
	 	File No: OH00134105598

File Date: 4/20/09
	 	Leased Equipment
	The D.S. Brown Company

	 	OH
	 	SOS
	 	U.S. Bancorp Equipment Finance, Inc.
	 	File No.: OH00152585061
File Date: 11/20/08
	 	Specific Equipment


For informational purposes only
	 
	 	 	 	 	 	 	 	 	 	 
	Florence Corporation

	 	IL
	 	SOS
	 	Raymond Leasing Corporation
	 	File No: 013820139
	 	Specific equipment; Forklift & related equipment
	Florence Corporation

	 	IL
	 	SOS
	 	Raymond Leasing Corporation
	 	File No: 013871329

File Date: 12/10/08
	 	Specific equipment; Orderpicker & related equipment
	 
	 	 	 	 	 	 	 	 	 	 
	Gibraltar Strip Steel Inc.

	 	DE
	 	SOS
	 	GBC Metals, LLC

F/K/A Olin Corporation
	 	File No: 70695881

File Date: 2/21/07


Amendment: 82973319

File Date: 9/3/08
	 	Copper based alloy products owned by Secured Party and delivered to Debtor on bailment and/or consignment
Precautionary filing for record purposes





 


S-19









 





	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	Juris-	 	 	 	UCC Filing No./Filing	 	 
	Debtor	 	State	 	diction	 	Secured Party	 	Date	 	Collateral
	Gibraltar Strip Steel, Inc.

	 	DE
	 	SOS
	 	Pacific Rim Capital, Inc.


Assignee: Banc of America Leasing & Capital, LLC
	 	File No: 72344157

File Date: 6/20/07


Assignment: 74916739

File Date: 12/21/07
	 	Leased Equipment pursuant to Master Lease Equipment Schedule #12; Gas Forklift & related equipment


Filed for informational and precautionary purposes
	Gibraltar Strip Steel, Inc.

	 	DE
	 	SOS
	 	Pacific Rim Capital, Inc.
	 	File No: 72344215

File Date: 6/20/07
	 	Leased Equipment pursuant to Master Lease Equipment Schedule #13; Gas Scrubber & related equipment


Filed for informational and precautionary purposes
	Gibraltar Strip Steel, Inc.

	 	DE
	 	SOS
	 	The Worthington Steel Company, LLC
	 	File No: 00354179

File Date: 2/2/10
	 	All equipment in the Buffalo Facility as defined in that certain Asset Purchase Agreement dated as of 1/26/10
	 
	 	 	 	 	 	 	 	 	 	 
	Noll/Norwesco, LLC

	 	DE
	 	SOS
	 	Toyota Motor Credit Corporation
	 	File No: 81343225

File Date: 4/17/08
	 	Leased Equipment; Forklift
	Noll/Norwesco, LLC

	 	DE
	 	SOS
	 	Pacific Rim Capital, Inc. 


Assignee: Banc of America Public Capital Corp.
Banc of America Leasing & Capital, LLC
	 	File No: 82436002

File Date: 7/15/08


Assignment: 
File
No: 83659958

File Date: 10/30/08


Amendment: 
File
No: 83660212

File Date: 10/30/08
	 	Leased Equipment pursuant to Master Lease Equipment Schedule #21; Forklift & related equipment


Filed for informational and precautionary purposes





 


S-20









 





	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	Juris-	 	 	 	UCC Filing No./Filing	 	 
	Debtor	 	State	 	diction	 	Secured Party	 	Date	 	Collateral
	Noll/Norwesco, LLC

	 	DE
	 	SOS
	 	Key Equipment Finance Inc.
	 	File No: 93896542

File Date: 12/7/09


Amendment: 
File
No: 93920177

File Date: 12/8/09
	 	Specific equipment; Flatbed trailers
	 
	 	 	 	 	 	 	 	 	 	 
	Pacific Award Metals, Inc.

	 	CA
	 	SOS
	 	NMHG Financial Services
	 	File No: 0308560630

File Date: 3/26/03


Continuation: 
File
No.: 0771334979

File Date: 10/19/07


Continuation: 
File
No.: 0771379093

File Date: 11/26/07
	 	Leased Equipment
	Pacific Award Metals, Inc.

	 	CA
	 	SOS
	 	IOS Capital
	 	File No: 077107697084

File Date: 3/27/07
	 	Leased Equipment pursuant to Master Lease Agreement
	Pacific Award Metals, Inc.

	 	CA
	 	SOS
	 	IOS Capital
	 	File No: 077108031067

File Date: 3/29/07
	 	Leased Equipment pursuant to Master Lease Agreement
	Pacific Award Metals, Inc.

	 	CA
	 	SOS
	 	Toyota Motor Credit Corporation
	 	File No: 087164729357

File Date: 7/09/08
	 	Specific Equipment; Forklift


For informational purposes only
	 
	 	 	 	 	 	 	 	 	 	 
	Sea Safe, Inc.

	 	LA
	 	East Baton Rouge

Parish
	 	Pacific RIM Capital, Inc.


Assignee Banc of
America Leasing & Capital, LLC
	 	File No: 09-1100429

File Date: 8/8/08


Assignment: 
File
No: 09-1101223

File Date: 8/22/08
	 	Leased Equipment pursuant Master Lease Equipment Schedule #19; Combilift and related equipment
	Sea Safe, Inc.

	 	LA
	 	East Baton Rouge

Parish
	 	NMHG Financial Services, Inc.
	 	File No: 28450991

File Date: 2/14/11
	 	Leased Equipment
	 
	 	 	 	 	 	 	 	 	 	 
	Solar Group, Inc.

	 	DE
	 	SOS
	 	Toyota Motor Credit Corporation
	 	File No: 72683034

File Date: 7/17/07
	 	Leased Equipment; Forklift


Filed as precaution





 


S-21









 





	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	Juris-	 	 	 	UCC Filing No./Filing	 	 
	Debtor	 	State	 	diction	 	Secured Party	 	Date	 	Collateral
	Solar Group, Inc.

	 	DE
	 	SOS
	 	Toyota Motor Credit Corporation
	 	File No: 00236806

File Date: 1/22/10
	 	Leased Equipment; Forklift


Filed as precaution
	Solar Group, Inc.

	 	DE
	 	SOS
	 	Toyota Motor Credit Corporation
	 	File No: 02034969

File Date: 6/10/10
	 	Leased Equipment; Forklift


Filed as precaution
	Solar Group, Inc.

	 	DE
	 	SOS
	 	Toyota Motor Credit Corporation
	 	File No: 04005330

File Date: 11/15/10
	 	Leased Equipment; Forklift & related equipment


Filed as precaution
	Solar Group, Inc.

	 	DE
	 	SOS
	 	Toyota Motor Credit Corporation
	 	File No: 10584683

File Date: 2/16/11
	 	Leased Equipment; Forklift


Filed as precaution
	Solar Group, Inc.

	 	DE
	 	SOS
	 	Toyota Motor Credit Corporation
	 	File No: 12027178

File Date: 5/27/11
	 	Leased Equipment; Forklift


Filed as precaution
	 
	 	 	 	 	 	 	 	 	 	 
	Southeastern Metals Manufacturing Company, Inc.

	 	FL
	 	SOS
	 	Pacific Rim Capital, Inc. 


Assignee: Banc of America Leasing & Capital LLC
	 	File No: 200603654345

File Date: 9/14/06


Amendment: 
200705214174
File Date: 4/4/07


Continuation: 
File
No.: 201104502451

File Date: 4/29/11
	 	Leased Equipment pursuant Master Lease Equipment Schedule #7; Hoist Lift Truck and related equipment


Filed for informational and precautionary purposes
	Southeastern Metals Manufacturing Company, Inc.

	 	FL
	 	SOS
	 	Toyota Motor Credit Corporation


Assignor: TMH Acquisition, LLC DBA Southern States Toyotalift
	 	File No: 200604025252

File Date: 10/31/06
	 	Leased Equipment; 18 Forklifts


Filed as precaution
	Southeastern Metals Manufacturing Co

	 	FL
	 	SOS
	 	CIT Technology Financing Services, Inc.
	 	File No: 200604147587

File Date: 11/15/06
	 	Leased Equipment; Office equipment


Filed for informational purposes





 


S-22









 





	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	Juris-	 	 	 	UCC Filing No./Filing	 	 
	Debtor	 	State	 	diction	 	Secured Party	 	Date	 	Collateral
	Southeastern Metals Manufacturing Company, Inc.

	 	FL
	 	SOS
	 	Toyota Motor Credit Corporation


Assignor: TMH Acquisition, LLC DBA Southern States Toyotalift
	 	File No: 200704902875

File Date: 2/26/07
	 	Leased Equipment; 4 forklifts 


Filed for informational purposes
	Southeastern Metals Manufacturing Company, Inc.

	 	FL
	 	SOS
	 	Toyota Motor Credit Corporation
	 	File No: 200705547521

File Date: 5/15/07
	 	Leased Equipment; 4 forklifts


Filed as precaution
	Southeastern Metals Manufacturing Company, Inc.

	 	FL
	 	SOS
	 	Toyota Motor Credit Corporation


Assignor: TMH Acquisition, LLC DBA Southern States Toyotalift
	 	File No: 200705901988

File Date: 6/28/07
	 	Leased Equipment; 1 Forklift


Filed as precaution
	Southeastern Metals Manufacturing Company, Inc.

	 	FL
	 	SOS
	 	Toyota Motor Credit Corporation


Assignor: TMH Acquisition, LLC DBA Southern States Toyotalift
	 	File No: 200706598774

File Date: 9/24/07
	 	Leased Equipment; 4 Forklifts


Filed as precaution
	Southeastern Metals Manufacturing Company, Inc.

	 	FL
	 	SOS
	 	Toyota Motor Credit Corporation
	 	File No: 200808319815

File Date: 5/16/08
	 	Leased Equipment; Forklift


Filed as precaution
	Southeastern Metals Manufacturing Company, Inc.

	 	FL
	 	SOS
	 	Toyota Motor Credit Corporation
	 	File No: 200808545734

File Date: 6/16/08
	 	Leased Equipment; 2 Forklifts and related equipment


Filed as precaution
	Southeastern Metals Manufacturing Company, Inc.

	 	FL
	 	SOS
	 	Toyota Motor Credit Corporation
	 	File No: 200808545742

File Date: 6/16/08
	 	Leased Equipment; 2 forklifts and related equipment


Filed as precaution





 


S-23









 





	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	Juris-	 	 	 	UCC Filing No./Filing	 	 
	Debtor	 	State	 	diction	 	Secured Party	 	Date	 	Collateral
	Southeastern Metals Manufacturing Company, Inc.

	 	FL
	 	SOS
	 	Toyota Motor Credit Corporation
	 	File No: 200808545750

File Date: 6/16/08
	 	Leased Equipment; Forklift and related equipment


Filed as precaution
	Southeastern Metals Manufacturing Company, Inc.

	 	FL
	 	SOS
	 	CIT Technology Financing Services, Inc.
	 	File No: 200900617436

File Date: 6/1/09
	 	Leased Equipment; Office equipment


Notice Filing
	Southeastern Metals Manufacturing Company, Inc.

	 	FL
	 	SOS
	 	Toyota Motor Credit Corporation
	 	File No: 201001972854

File Date: 2/8/10
	 	Leased Equipment; 11 Forklifts


Filed as precaution
	Southeastern Metals Manufacturing Company, Inc.

	 	FL
	 	SOS
	 	Toyota Motor Credit Corporation
	 	File No: 201002210443

File Date: 3/23/10
	 	Leased Equipment; Forklift


Filed as precaution
	Southeastern Metals Manufacturing Company, Inc.

	 	FL
	 	SOS
	 	Coutinho & Ferrostaal, Incorporated
	 	File No: 
20100296992X

File Date: 8/2/10
	 	Consigned Goods; Steel sheets in coils
	Southeastern Metals Manufacturing Company, Inc.

	 	FL
	 	SOS
	 	Toyota Motor Credit Corporation
	 	File No: 201105284636

File Date: 9/12/11
	 	Leased Equipment; 6 forklifts


Filed as precaution





 


S-24









 





SCHEDULE 5.11




PERMITTED FOREIGN SUBSIDIARY LOANS AND INVESTMENTS




GIBRALTAR INDUSTRIES, INC.

INVESTMENTS AND LOANS MADE BY DOMESTIC COMPANY TO A FOREIGN SUBSIDIARY


($ in USD)



	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	USD	 
	DOMESTIC COMPANIES	 	FOREIGN SUBSIDIARIES	 	TYPE	 	31-Aug-11	 
	 
	 	 	 	 	 	 	 	 
	Alabama Metal Industries Corporation
	 	Amico Canada, Inc.	 	Investment	 	 	18,096,786	 
	 
	 	 	 	 	 	 	 	 
	Gibraltar Industries, Inc.
	 	Gibraltar Industries UK, Ltd	 	Investment	 	 	10,939,651	 
	Gibraltar Industries, Inc.
	 	Gibraltar Industries UK, Ltd	 	Loan	 	 	13,113,715	 
	 
	 	 	 	 	 	 	 	 
	Gibraltar Industries, Inc.
	 	Gibraltar Industries Germany GmbH	 	Investment	 	 	7,253,141	 
	Gibraltar Industries, Inc.
	 	Gibraltar Industries Germany GmbH	 	Loan	 	 	11,260,178	 






Note: For currency translation the investment is recorded at historical rates
and the loans are translated at the date requested.



	 	 	 	 	 
	Exchange Rates:
	 	 	 	 
	Canadian to USD
	 	 	1.0224	 
	GBP to USD
	 	 	1.6256	 
	Euros to USD
	 	 	1.4375	 







 


S-25











 




SCHEDULE 5.17




AFFILIATE TRANSACTIONS




(a) The firm of Lippes Mathias Wexler Friedman, LLP, of which Mr. Gerald S. Lippes, a Director of
Gibraltar Industries, Inc., is a partner, serves as counsel to and provides legal services to
Gibraltar Industries, Inc. and its subsidiaries.



(b) Mr. Robert E. Sadler, Jr., a Director of Gibraltar Industries, Inc., is Vice Chairman of the
Board of Manufacturers and Traders Trust Company, one of the lenders under the Agreement.


 


S-26









 





SCHEDULE 6.1




CORPORATE EXISTENCE; SUBSIDIARIES; FOREIGN QUALIFICATIONS




1. The following list identifies the jurisdiction of organization/formation and each jurisdiction
in which any Company is qualified to do business:



	 	 	 	 	 
	 	 	Jurisdiction of	 	Jurisdictions
	 	 	Organization/	 	Where Entity is Qualified
	Company	 	Formation	 	to Do Business
	 
	 	 	 	 
	Air Vent Inc.

	 	Delaware
	 	Illinois


Iowa


Massachusetts


Mississippi


Missouri


North Carolina


Texas
	 
	 	 	 	 
	Alabama Metal Industries Corporation

	 	Delaware
	 	Alabama


California


Colorado


Florida


Illinois


Louisiana


Missouri


Ohio


South Carolina


Texas


Utah


Washington





 


S-27









 





	 	 	 	 	 
	 	 	Jurisdiction of	 	Jurisdictions
	 	 	Organization/	 	Where Entity is Qualified
	Company	 	Formation	 	to Do Business
	 
	 	 	 	 
	AMICO Holding Company, Inc.

	 	Delaware
	 	None
	 
	 	 	 	 
	Appleton Supply Co., Inc.

	 	Delaware
	 	Michigan


Wisconsin
	 
	 	 	 	 
	Construction Metals, LLC

	 	California
	 	Arizona


Colorado


Utah


Washington
	 
	 	 	 	 
	Diamond Perforated Metals, Inc.

	 	California
	 	None
	 
	 	 	 	 
	D.S.B. Holding Corp.

	 	Delaware
	 	None
	 
	 	 	 	 
	The D.S. Brown Company

	 	Ohio
	 	California


Georgia


Michigan


Minnesota


New Jersey


Pennsylvania


Texas
	 
	 	 	 	 
	Florence Corporation

	 	Illinois
	 	None
	 
	 	 	 	 
	Florence Corporation of Kansas

	 	Kansas
	 	Utah
	 
	 	 	 	 
	Gibraltar Industries, Inc.

	 	Delaware
	 	New York





 


S-28









 





	 	 	 	 	 
	 	 	Jurisdiction of	 	Jurisdictions
	 	 	Organization/	 	Where Entity is Qualified
	Company	 	Formation	 	to Do Business
	 
	 	 	 	 
	Gibraltar Steel Corporation of New
York

	 	New York
	 	Georgia


Michigan


Ohio


Texas
	 
	 	 	 	 
	Gibraltar Strip Steel, Inc.*

	 	Delaware
	 	New York


Ohio


Texas***
	 
	 	 	 	 
	Noll/Norwesco, LLC

	 	Delaware
	 	California


Georgia


Oregon


Washington


Utah
	 
	 	 	 	 
	Pacific Award Metals, Inc.

	 	California
	 	Arizona


Colorado


Washington
	 
	 	 	 	 
	Sea Safe, Inc.

	 	Louisiana
	 	Illinois


Texas
	 
	 	 	 	 
	Solar Group, Inc.

	 	Delaware
	 	Mississippi


North Carolina


Texas
	 
	 	 	 	 
	Solar of Michigan, Inc.*

	 	Delaware
	 	Michigan





 


S-29









 





	 	 	 	 	 
	 	 	Jurisdiction of	 	Jurisdictions
	 	 	Organization/	 	Where Entity is Qualified
	Company	 	Formation	 	to Do Business
	 
	 	 	 	 
	Southeastern Metals Manufacturing
Company, Inc.

	 	Florida
	 	New Mexico


Texas
	 
	 	 	 	 
	GSC Flight Services Corp.*

	 	New York
	 	None
	 
	 	 	 	 
	Gibraltar Industries Germany GmbH**

	 	Germany
	 	None
	 
	 	 	 	 
	Gibraltar Industries (UK) Limited**

	 	United Kingdom
	 	None
	 
	 	 	 	 
	AMICO Canada, Inc.**

	 	Canada
	 	British Columbia


Ontario


Quebec
	 
	 	 	 	 
	Dramex Expanded Metal Limited**

	 	United Kingdom
	 	None
	 
	 	 	 	 
	Expamet Polska sp.zo.o**

	 	Poland
	 	None
	 
	 	 	 	 
	Sorst Streckmetall GmbH**

	 	Germany
	 	None
	 
	 	 	 	 
	The Expanded Metal Company Limited**

	 	United Kingdom
	 	None






2. The following Subsidiaries are wholly-owned directly by Gibraltar Steel Corporation of New York
which, in turn, is wholly-owned by Gibraltar Industries, Inc.:


Air Vent Inc.

Gibraltar Strip Steel, Inc.*

GSC Flight Services Corp.*

Solar of Michigan, Inc.*

Southeastern Metals Manufacturing Company, Inc.




3. The following Subsidiaries are directly and wholly-owned by Gibraltar Industries, Inc.


Gibraltar Steel Corporation of New York

AMICO Holding Company, Inc.

Appleton Supply Co., Inc.

Gibraltar Industries Germany GmbH**

Gibraltar Industries (UK) Limited**

D.S.B. Holding Corp.

Florence Corporation

Solar Group, Inc.





 


S-30









 







4. The following Subsidiaries are wholly-owned directly by Alabama Metal Industries Corporation
which, in turn, is wholly-owned by AMICO Holding Company, Inc., which is wholly owned by Gibraltar
Industries, Inc.:


AMICO Canada, Inc.**

Diamond Perforated Metals, Inc.

Sea Safe, Inc.




5. The remainder of the Subsidiaries are owned as follows:



	 	 	 	 	 
	 	 	 	 	Indirect
	Subsidiary	 	Direct Ownership	 	Ownership
	 
	 	 	 	 
	Alabama Metal Industries Corporation

	 	AMICO Holding Company, Inc. — 100%
	 	GII — 100%
	 
	 	 	 	 
	Pacific Award Metals, Inc.

	 	Southeastern Metals Manufacturing Company, Inc. — 100%
	 	GSCNY — 100%
	 
	 	 	 	 
	The D.S. Brown Company

	 	D.S.B. Holding Corp.
	 	GII — 100%
	 
	 	 	 	 
	Construction Metals, LLC

	 	Pacific Award Metals, Inc. — 100%
	 	Southeastern Metals Manufacturing Company, Inc.-100%
	 
	 	 	 	 
	Noll/Norwesco, LLC

	 	Pacific Award Metals, Inc. — 100%
	 	Southeastern Metals Manufacturing Company, Inc.-100%
	 
	 	 	 	 
	Dramex Expanded Metal Limited**

	 	Gibraltar Industries (UK) Limited** — 100%
	 	GII — 100%
	 
	 	 	 	 
	Expamet Polska sp.zo.o**

	 	The Expanded Metal Company Limited** — 100%
	 	GII — 100%
	 
	 	 	 	 
	Florence Corporation of Kansas

	 	Florence Corporation — 100%
	 	GII — 100%
	 
	 	 	 	 
	Sorst Streckmetall GmbH**

	 	Gibraltar Industries Germany GmbH** — 100%
	 	GII — 100%
	 
	 	 	 	 
	The Expanded Metal Company Limited**

	 	Gibraltar Industries (UK) Limited** — 100%
	 	GII — 100%





 


S-31









 







	 	 	 
	*	 	Non-Material Subsidiaries

	 
	**	 	Foreign Subsidiaries

	 
	***	 	Borrower or Subsidiary Guarantor, as applicable, is currently in the process of
withdrawing its qualification to do business in this State.

	 
	GSCNY=	 	Gibraltar Steel Corporation of New York

	 
	GII =  Gibraltar Industries, Inc.




6. The principal place of business and the chief executive office for the Borrowers, each
Subsidiary Guarantor and each Foreign Subsidiary is 3556 Lake Shore Road Buffalo, New York 14219.


 


S-32









 





SCHEDULE 6.4




LITIGATION AND ADMINISTRATIVE PROCEEDINGS




None.


 


S-33









 





SCHEDULE 6.5




OWNED REAL PROPERTY




	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	State/	 	ZIP	 	Owned/
	Business Unit	 	Use	 	City	 	Country	 	Code	 	Leased
	Air Vent

	 	Plant
	 	Clinton
	 	Iowa
	 	 	52732	 	 	Owned
	Air Vent

	 	Plant
	 	Enterprise
	 	Mississippi
	 	 	39330	 	 	Owned
	Air Vent

	 	Plant
	 	Orrick
	 	Missouri
	 	 	64077	 	 	Owned
	AMICO

	 	Plant & Office
	 	Birmingham
	 	Alabama
	 	 	35208	 	 	Owned
	AMICO

	 	Plant
	 	Fontana
	 	California
	 	 	92335	 	 	Owned
	AMICO

	 	Plant
	 	Visalia
	 	California
	 	 	93291	 	 	Owned
	AMICO

	 	Plant & Office
	 	Iberville, QC
	 	Canada
	 	 	J2X 4J5	 	 	Owned
	AMICO

	 	Plant
	 	Lakeland
	 	Florida
	 	 	33801	 	 	Owned
	AMICO

	 	Plant
	 	Lafayette
	 	Louisiana
	 	 	70508	 	 	Owned
	AMICO

	 	Warehouse
	 	Jackson
	 	Mississippi
	 	 	39209	 	 	Owned
	AMICO

	 	For Sale
	 	Youngstown
	 	Ohio
	 	 	44512	 	 	Owned
	AMICO

	 	Plant
	 	Dayton
	 	Texas
	 	 	77535	 	 	Owned
	AMICO

	 	Plant
	 	Orem
	 	Utah
	 	 	84059	 	 	Owned
	Appleton

	 	Plant & Office
	 	Appleton
	 	Wisconsin
	 	 	54914	 	 	Owned
	Appleton

	 	Warehouse
	 	Appleton
	 	Wisconsin
	 	 	54914	 	 	Owned
	DS Brown

	 	Warehouse
	 	North Baltimore
	 	OH
	 	 	45872	 	 	Owned
	Florence

	 	Plant & Office
	 	Manhattan
	 	Kansas
	 	 	66503	 	 	Owned
	SOLAR

	 	Plant & Office
	 	Taylorsville
	 	Mississippi
	 	 	39168	 	 	Owned
	SOLAR

	 	Warehouse
	 	Taylorsville
	 	Mississippi
	 	 	39168	 	 	Owned
	CMI

	 	Warehouse
	 	Stockton
	 	California
	 	 	95206	 	 	Owned
	CMI

	 	Warehouse
	 	Fife
	 	Washington
	 	 	98424	 	 	Owned
	DS Brown

	 	Plant & Office
	 	North Baltimore
	 	Ohio
	 	 	45872	 	 	Owned
	Noll/Norwesco

	 	Plant & Office
	 	Stockton
	 	California
	 	 	95206	 	 	Owned
	Noll/Norwesco

	 	Plant & Office
	 	Portland
	 	Oregon
	 	 	97216	 	 	Owned
	Noll/Norwesco

	 	Plant & Office
	 	Fife
	 	Washington
	 	 	98424	 	 	Owned





 


S-34









 





SCHEDULE 6.9




LOCATIONS





	1.	 	See attached list for locations currently leased and/or owned by a Credit Party, where
inventory is currently located.






	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Business Unit	 	Physical Address	 	City	 	State	 	ZIP Code	 	 	 	 
	Air Vent

	 	418 N. Front Street
	 	Orrick
	 	Missouri
	 	 	64077	 	 	Owned	 	 
	Air Vent

	 	1710 South 21st Street
	 	Clinton
	 	Iowa
	 	 	52732	 	 	Owned	 	 
	Air Vent

	 	4117 Pinnacle Point Dr.
	 	Dallas
	 	Texas
	 	 	75211	 	 	Leased
	 	*
	SOLAR

	 	107 Fellowship Road
	 	Taylorsville
	 	Mississippi
	 	 	39168	 	 	Owned	 	 
	SOLAR

	 	203 Fellowship Road
	 	Taylorsville
	 	Mississippi
	 	 	39168	 	 	Owned	 	 
	Florence

	 	5935 Corporate Drive
	 	Manhattan
	 	Kansas
	 	 	66503	 	 	(IRB Bond)	 	 
	Florence

	 	13169-B Slover Avenue
	 	Fontana
	 	California
	 	 	92337	 	 	Leased from CMI
	 	**
	AMICO

	 	3240 & 3245 Fayette Avenue
	 	Birmingham
	 	Alabama
	 	 	35208	 	 	Owned	 	 
	AMICO

	 	11093 Beach Avenue
	 	Fontana
	 	California
	 	 	92335	 	 	Owned	 	 
	AMICO

	 	7300 W. Sunnyview Avenue
	 	Visalia
	 	California
	 	 	93291	 	 	Owned	 	 
	AMICO

	 	913-915 S. Heald Street
	 	Wilmington
	 	Delaware
	 	 	19806	 	 	Leased
	 	*
	AMICO

	 	1033 Pine Chase Avenue
	 	Lakeland
	 	Florida
	 	 	33801	 	 	Owned	 	 
	AMICO

	 	1115 E. 5000 North Road
	 	Bourbonnais
	 	Illinois
	 	 	60914	 	 	Leased
	 	*
	AMICO

	 	209 Glaser Drive
	 	Lafayette
	 	Louisiana
	 	 	70508	 	 	Owned	 	 
	AMICO

	 	1427 Howell Street
	 	North Kansas City
	 	Missouri
	 	 	64068	 	 	Leased
	 	*
	AMICO

	 	1520 Roper Mountain Road
	 	Greenville
	 	South Carolina
	 	 	29615	 	 	Leased
	 	*
	AMICO

	 	825 County Road 606
	 	Dayton
	 	Texas
	 	 	77535	 	 	Owned	 	 
	AMICO

	 	120 North Latham
	 	Houston
	 	Texas
	 	 	77011	 	 	Leased
	 	*
	AMICO

	 	212 North 1330 West Street
	 	Orem
	 	Utah
	 	 	84059	 	 	Owned	 	 
	AMICO

	 	22153 West Valley Highway
	 	Kent
	 	Washington
	 	 	98032	 	 	Leased
	 	*
	CMI

	 	13169-B Slover Avenue
	 	Fontana
	 	California
	 	 	92337	 	 	Leased
	 	*
	CMI

	 	3011 70th Avenue E.
	 	Fife
	 	Washington
	 	 	98424	 	 	Owned	 	 
	CMI

	 	1320 Performance Drive
	 	Stockton
	 	California
	 	 	95206	 	 	Owned	 	 
	CMI

	 	985 West 3160 South Central Valley Industrial Park
	 	Salt Lake City
	 	Utah
	 	 	84123	 	 	Leased
	 	*
	CMI

	 	4900 Moline Street
	 	Denver
	 	Colorado
	 	 	80239	 	 	Leased from K & W Metal Fabricators, LLC
	 	**
	Noll/Norwesco

	 	3011 70th Avenue E.
	 	Fife
	 	Washington
	 	 	98424	 	 	Owned	 	 
	Noll/Norwesco

	 	1320 Performance Drive
	 	Stockton
	 	California
	 	 	95206	 	 	Owned	 	 
	Noll/Norwesco

	 	38 SE 97th Avenue
	 	Portland
	 	Oregon
	 	 	97216	 	 	Owned	 	 
	K & W

	 	13169-B Slover Avenue
	 	Fontana
	 	California
	 	 	92337	 	 	Leased
	 	**
	K & W (lease is in the name of Gibraltar Industries, Inc.)

	 	4850 Moline Street
	 	Denver
	 	Colorado
	 	 	80239	 	 	Leased
	 	*
	Pacific Award Metals

	 	1450 Virginia Avenue
	 	Baldwin Park
	 	California
	 	 	91706	 	 	Leased	 	 
	Pacific Award Metals

	 	1315 Vineland Avenue
	 	Baldwin Park
	 	California
	 	 	91706	 	 	Leased	 	 
	Pacific Award Metals

	 	50 South 43rd Avenue
	 	Phoenix
	 	Arizona
	 	 	85009	 	 	Leased	 	 
	Pacific Award Metals

	 	1000 Whipple Road
	 	Union City
	 	Califonia
	 	 	94587	 	 	Leased
	 	****





 


S-35









 





	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Business Unit	 	Physical Address	 	City	 	State	 	ZIP Code	 	 	 	 
	Pacific Award Metals

	 	2400 N.E. 65th Avenue
	 	Vancouver
	 	Washington
	 	 	98661	 	 	Leased	 	 
	Pacific Award Metals

	 	18770 80th Place South
	 	Kent
	 	Washington
	 	 	98032	 	 	Leased	 	 
	Pacific Award Metals

	 	12001 East 37th Avenue
	 	Denver
	 	Colorado
	 	 	80239	 	 	Leased	 	 
	Appleton

	 	1905 West Haskell Street
	 	Appleton
	 	Wisconsin
	 	 	54914	 	 	Owned	 	 
	Appleton

	 	927 South Grider Street
	 	Appleton
	 	Wisconsin
	 	 	54914	 	 	Owned	 	 
	SEMCO

	 	11801 Industry Drive
	 	Jacksonville
	 	Florida
	 	 	32218	 	 	Leased
	 	*
	SEMCO

	 	3004 — B Aldine Bender, RR 1
	 	Houston
	 	Texas
	 	 	77032	 	 	Leased
	 	*
	SEMCO

	 	18757 Bracken Drive
	 	San Antonio
	 	Texas
	 	 	78266	 	 	Leased
	 	***
	The D.S. Brown Company

	 	300 East Cherry Street
	 	North Baltimore
	 	Ohio
	 	 	45872	 	 	Owned	 	 








	 	 	 
	*	 	A Landlord’s Waiver has been delivered

	 
	**	 	Location shared with another Credit Party; Landlord’s Waiver has been delivered by the Credit Party on the lease

	 
	***	 	There are two leases for this location and a Landlord’s Waiver has been delivered from each landlord

	 
	****	 	A Landlord Waiver will not be required for that location because all assets will be removed within 30 days of the Closing Date.






	2.	 	The following list provides for third-party locations where inventory is currently held:






	 	 	 	 	 	 	 
	 	 	 	 	 	 	Description of
	 	 	 	 	 	 	Assets and Nature of
	Credit Party	 	Name of Third Party	 	Address	 	Relationship
	 
	 	 	 	 	 	 
	Air Vent, Inc.

	 	Pellams Warehouse
	 	917 Parkway

Grand Prairie, TX 75051
	 	Inventory warehouse*
	 
	 	 	 	 	 	 
	Air Vent, Inc.

	 	Reliable Consolidation
	 	415 N. Bloomington Street

Lowell, AR 72745
	 	Inventory warehouse*
	 
	 	 	 	 	 	 
	Air Vent, Inc.

	 	Custom Mfg. Co.
	 	5501 S Lamar

Dallas, TX 75215
	 	Outside processor*
	 
	 	 	 	 	 	 
	Air Vent, Inc.

	 	Environmental Friendly
	 	1833 N I-35E

Dallas, TX 75006
	 	Outside processor
	 
	 	 	 	 	 	 
	Solar Group, Inc.

	 	Boswell Retardation Center
	 	P.O. Box 128

Magee, MS 39111
	 	Outside processor*
	 
	 	 	 	 	 	 
	Solar Group, Inc

	 	Pine Belt Industries
	 	5370 Highway 42

Hattiesburg, MS 39401
	 	Outside processor*
	 
	 	 	 	 	 	 
	Solar Group, Inc

	 	Pro Pak
	 	2010 S Great SW Parkway

Grand Prairie, TX 75051
	 	Outside processor*
	 
	 	 	 	 	 	 
	Florence Corporation

	 	Van Am Tool & Engineering
	 	5025 Easion Road 

St. Joseph, MO 64507
	 	Outside processor*





 


S-36









 





	 	 	 	 	 	 	 
	 	 	 	 	 	 	Description of
	 	 	 	 	 	 	Assets and Nature of
	Credit Party	 	Name of Third Party	 	Address	 	Relationship
	 
	 	 	 	 	 	 
	Florence Corporation

	 	Bennet Packaging
	 	220 N.W Space Center Rd
Lee’s Summit, MO 64064
	 	Outside processor*
	 
	 	 	 	 	 	 
	Florence Corporation

	 	Stemar Industries
	 	116 Kean Street

W Bablyon, NY 11704
	 	Outside processor*
	 
	 	 	 	 	 	 
	Florence Corporation

	 	A&E Custom Manufacturing
	 	3150 Chrysler Road

Kansas City, KS 66115
	 	Outside processor*
	 
	 	 	 	 	 	 
	Florence Corporation

	 	BMS Logistics
	 	3601 S Leonard Rd
St. Joseph, MO 64503
	 	Outside processor*
	 
	 	 	 	 	 	 
	Southeastern Metals Manufacturing Company, Inc.
(under the assumed name DOT Metal Products, Inc.)

	 	PCI Logistics
	 	1755 Federal Rd.
Houston, TX 77015
	 	Inventory warehouse*
	 
	 	 	 	 	 	 
	Southeastern Metals Manufacturing Company, Inc.
(under the assumed name DOT Metal Products, Inc.)

	 	PreCoat
	 	16402 Jacinto Port Blvd

Houston, TX 77015
	 	Outside processor*
	 
	 	 	 	 	 	 
	Appleton Supply Company, Inc.

	 	Wismarq
	 	11440 W. Addison Ave
Franklin Park, IL 60131
	 	Outside processor*
	 
	 	 	 	 	 	 
	Southeastern Metals Manufacturing Company, Inc.

	 	Toll/Pride
	 	13518 NE 258th Ct.
Raiford, FL 32083
	 	Outside processor*
	 
	 	 	 	 	 	 
	Southeastern Metals Manufacturing Company, Inc.

	 	PreCoat
	 	3399 Davey Allison Blvd

Hueytown, AL 35023
	 	Outside processor*





 


S-37









 





	 	 	 	 	 	 	 
	 	 	 	 	 	 	Description of
	 	 	 	 	 	 	Assets and Nature of
	Credit Party	 	Name of Third Party	 	Address	 	Relationship
	 
	 	 	 	 	 	 
	Southeastern Metals Manufacturing Company, Inc

	 	Magic Steel
	 	908 Maero Street NW

Decatur, AL 35603
	 	Outside processor*
	 
	 	 	 	 	 	 
	Southeastern Metals Manufacturing Company, Inc

	 	Coil Cutters
	 	8501 Sabal Industrial Blvd.
Tampa, FL
	 	Outside processor*
	 
	 	 	 	 	 	 
	Southeastern Metals Manufacturing Company, Inc

	 	Metal Processors
	 	 	 	Outside processor*
	 
	 	 	 	 	 	 
	Southeastern Metals Manufacturing Company, Inc

	 	Lumb
	 	2500 Louisville Road

Savannah, GA
	 	Outside processor*
	 
	 	 	 	 	 	 
	Southeastern Metals Manufacturing Company, Inc

	 	Metal Plate Galvanizing
	 	Jacksonville
	 	Outside processor*
	 
	 	 	 	 	 	 
	Southeastern Metals Manufacturing Company, Inc

	 	Steel Terminal
	 	Tampa, FL
	 	Outside processor*
	 
	 	 	 	 	 	 
	Alabama Metal Industries Corporation

	 	Marleau Hercules
	 	4333 N. Detroit Ave
Toledo, OH 43612
	 	Outside processor*
	 
	 	 	 	 	 	 
	Alabama Metal Industries Corporation

	 	Ferraloy
	 	1425 Red Hat Rd

Decatur, AL 35601
	 	Outside processor
	 
	 	 	 	 	 	 
	Alabama Metal Industries Corporation

	 	B.L. Downey
	 	2125 Gardner Rd

Broadview, IL 60155
	 	Outside processor*
	 
	 	 	 	 	 	 
	Alabama Metal Industries Corporation

	 	AZZ Galvanizing
	 	625 Mills Rd

Joilet, IL 60434
	 	Outside processor*





 


S-38









 





	 	 	 	 	 	 	 
	 	 	 	 	 	 	Description of
	 	 	 	 	 	 	Assets and Nature of
	Credit Party	 	Name of Third Party	 	Address	 	Relationship
	 
	 	 	 	 	 	 
	Alabama Metal Industries Corporation

	 	Aztec Galvanizing
	 	PO Box 647

Crowley, TX 76036
	 	Outside processor*
	 
	 	 	 	 	 	 
	Alabama Metal Industries Corporation

	 	Dixie Industrial Finishing
	 	4925s.Royal Atlanta Dr.
Tucker, GA 30084
	 	Outside processor*
	 
	 	 	 	 	 	 
	Alabama Metal Industries Corporation

	 	Industrial Galvanizing
	 	475 Dietrich Road

Steele, AL 35987
	 	Outside processor*
	 
	 	 	 	 	 	 
	Alabama Metal Industries Corporation

	 	Marantha Machine
	 	128 W. FM 6

Nevada, TX 75173
	 	Outside processor*
	 
	 	 	 	 	 	 
	Alabama Metal Industries Corporation

	 	Hobson Galvanizing
	 	2402 Engineering Rd

Belle Chase, LA 70037
	 	Outside processor*
	 
	 	 	 	 	 	 
	Alabama Metal Industries Corporation

	 	SteelCo
	 	1887 S. 700 W. 

Salt Lake city, UT 84104
	 	Outside processor*
	 
	 	 	 	 	 	 
	Alabama Metal Industries Corporation

	 	Metal Plate -Dayton
	 	10625 Needham Rd

Houston, TX 77064
	 	Outside Processor*
	 
	 	 	 	 	 	 
	Alabama Metal Industries Corporation

	 	Metal Plate Galvanizing
	 	1120 39th Street North

Birmingham, AL 35234
	 	Outside processor*
	 
	 	 	 	 	 	 
	Alabama Metal Industries Corporation

	 	V&S Delaware Galvanizing
	 	511 Carroll Dr.

New Castle, DE 19720
	 	Outside processor*
	 
	 	 	 	 	 	 
	Alabama Metal Industries Corporation

	 	Valmont Industries
	 	1085 West 400 North

Lindon, UT 84842
	 	Outside processor*
	 
	 	 	 	 	 	 
	Diamond Perforated Metals, Inc.

	 	Drexel Supply Co.
	 	10361 E 106 Ave

Henderson, CO 80601
	 	Public warehouse*
	 
	 	 	 	 	 	 
	DS Brown

	 	Nevada Storage
	 	Reno, NV
	 	Outside Processor*





 


S-39









 





	 	 	 	 	 	 	 
	 	 	 	 	 	 	Description of
	 	 	 	 	 	 	Assets and Nature of
	Credit Party	 	Name of Third Party	 	Address	 	Relationship
	 
	 	 	 	 	 	 
	DS Brown

	 	Martin Industries
	 	Elmore, OH
	 	Outside Processor*
	 
	 	 	 	 	 	 
	DS Brown

	 	Universal Urethane
	 	Toledo, OH
	 	Outside Processor*
	 
	 	 	 	 	 	 
	DS Brown

	 	Capital City Steel
	 	Buda, TX
	 	Consigned location*
	 
	 	 	 	 	 	 
	DS Brown

	 	AG Construction
	 	Princeton, NJ
	 	Consigned location*
	 
	 	 	 	 	 	 
	DS Brown

	 	Hawaii Nut and Bolt
	 	Oahu, HI
	 	Consigned location*








	 	 	 
	*	 	An immaterial amount of collateral is maintained at this location. If required by Agent, a
Processor Waiver, in form and substance acceptable to Agent, will be delivered for this location.




	 	 	 
	3.	 	Each Credit Party’s chief executive office is located at 3556 Lake Shore Road Buffalo, New York
14219.







 


S-40









 





SCHEDULE 6.11




EMPLOYEE BENEFIT PLANS





	1.	 	The following is a list of all material ERISA Plans:







	 	a.	 	Gibraltar Industries, Inc. Fringe and Welfare Benefits Plan


	 
	 	b.	 	Gibraltar Industries, Inc. 401(k) Plan Amendment and Restatement

	 
	 	c.	 	Second Amendment and Restatement of the Gibraltar Industries, Inc. Management
Stock Purchase Plan

	 
	 	d.	 	Third Amendment and Restatement of the Gibraltar Industries, Inc. 2005 Equity
Incentive Plan

	 
	 	e.	 	Amended and Restated Gibraltar Deferred Compensation Plan

	 
	 	f.	 	Amended and Restated Employment Agreement dated as of August 21, 2007 between
Gibraltar Industries, Inc. and Brian J. Lipke

	 
	 	g.	 	Employment Agreement dated as of August 21, 2007 between Gibraltar Industries,
Inc. and Henning Kornbrekke

	 
	 	h.	 	Change in Control Agreement dated March 24, 2011, by and between Gibraltar
Industries, Inc. and Brian J. Lipke

	 
	 	i.	 	Change in Control Agreement dated March 24, 2011, by and between Gibraltar
Industries, Inc. and Henning Kornbrekke

	 
	 	j.	 	Change in Control Agreement dated February 20, 2009, by and between Gibraltar
Industries, Inc. and Kenneth W. Smith

	 
	 	k.	 	Change in Control Agreement dated February 20, 2009 by and between Gibraltar
Industries, Inc. and Timothy J. Heasley

	 
	 	l.	 	Change in Control Agreement dated February 20, 2009 by and between Gibraltar
Industries, Inc. and Paul M. Murray

	 
	 	m.	 	Salary Continuation Agreement dated March 1, 1996, by and between Gibraltar
Steel Corporation (n/k/a Gibraltar Industries, Inc.) and Brian J. Lipke







	2.	 	The following is a list of Foreign Benefit Plans and Foreign Pension Plans:






The Expanded Metal Company Limited GPP Scheme

Sorst Streckmetall GmbH Defined Benefit Pension Scheme

Pension Plan for The Employees of Amico Canada Inc.

Employee Registered Retirement Savings Plan (AMICO Canada, Inc.)

Employee Non Registered RSP Plan (AMICO Canada, Inc.)

Employee Spousal RRSP (AMICO Canada, Inc.)



 


S-41









 





SCHEDULE 6.16




MATERIAL AGREEMENTS




Indenture dated as of December 8, 2005, among Gibraltar Industries, Inc., the Guarantors (as
defined therein) and the Trustee (as defined therein)



Registration Rights Agreement, dated as of December 8, 2005, among Gibraltar Industries, Inc. the
Guarantors (as defined therein) and J.P. Morgan Securities Inc., McDonald Investments Inc. and
Harris Nesbitt Corp., as initial purchasers of the 8% Senior Subordinated Notes



Amended and Restated Employment Agreement dated as of August 21, 2007 between Gibraltar Industries,
Inc. and Brian J. Lipke



Employment Agreement dated as of August 21, 2007 between Gibraltar Industries, Inc. and Henning
Kornbrekke



 


S-42









 







SCHEDULE 6.17




INTELLECTUAL PROPERTY




See attached list of Copyrights




	 	 	 	 	 	 	 	 	 
	Copyright	 	 	 	 	 	 	 	 
	Claimant	 	Reg. #	 	Date Reg.	 	Title	 	Description
	Air Vent Inc.

	 	TX 131-073
	 	7/24/1978
	 	Principles of Attic Ventilation
	 	24 pgs
	Solar Group, Inc.

	 	TX 5-186-529
	 	4/30/2000
	 	Olde Towne Collection
	 	2 pgs
	Solar Group, Inc.

	 	TXU 976-824
	 	11/27/2000
	 	Premium Mailbox Post: The Estate ES200 Black
	 	poster
	Solar Group, Inc.

	 	TXU 977-296
	 	11/27/2000
	 	Premium Mailbox Post: The Estate Series ES200 White
	 	poster
	Solar Group, Inc.

	 	TXU 980-800
	 	12/4/2000
	 	Premium Mailbox: Estate Series E15 Premium Aluminum Mailbox Post
	 	poster
	Solar Group, Inc.

	 	TXU 980-912
	 	11/27/2000
	 	Premium Mailbox: Estate Series E15 Black
	 	poster
	Solar Group, Inc.

	 	TXU 983-179
	 	11/28/2000
	 	Premium Mailbox (Estate Series E15 White)
	 	poster
	Solar Group, Inc.

	 	V3412D855
	 	3/13/1998
	 	Centrury Classic 2000 Mailbox & 1 Other Title (Century Classic 2000 3-D artwork)
	 	n/a
	Solar Group, Inc.

	 	VA 1-038-133
	 	3/27/2000
	 	Olde Towne Collection Post Assembly
	 	mailbox support post
	Solar Group, Inc.

	 	VA 1-041-820
	 	3/27/2000
	 	Olde Towne Collection Vertical Mailbox
	 	n/a
	Solar Group, Inc.

	 	VA 1-041-830
	 	3/27/2000
	 	Olde Towne Collection Horizontal Mailbox
	 	n/a
	Solar Group, Inc.

	 	VAU 462-933
	 	5/28/1999
	 	Cast Aluminum Horizontal Citibox
	 	technical drawing
	Solar Group, Inc.

	 	VAU 469-000
	 	5/14/1999
	 	Cast Aluminum Vertical Citibox
	 	technical drawing





 


S-43









 




See attached list of Trademarks




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	Registration	 	Registration	 	Application	 	 	 	 	 	 
	Mark	 	Image	 	Status	 	Date	 	Number	 	Number	 	Country	 	Class	 	Goods or Services
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	VENTURIVENT

	 	VENTURIVENT
	 	Registered
	 	7/3/1990
	 	 	1,604,349	 	 	 	73/835,541	 	 	USA
	 	IC 006
	 	Unitary fabricated roof rigdge ventilators without moving parts made primarily of metal
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	GOING GREEN SAVES GREEN

	 	
	 	Pending
	 	N/A
	 	 	N/A	 	 	 	85/108543	 	 	USA
	 	IC 011
	 	Solar Powered Attic Fans
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	HIP AV VENT RIDGE SHINGLE-OVER HIP VENT

	 	
	 	Registered
	 	1/11/2011
	 	 	390,574	 	 	 	77/891,278	 	 	USA
	 	IC 019
	 	Non-metal building materials, namely untary fabricated roof hip and ridge ventilators
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	DIAMOND GRIP

	 	DIAMOND GRIP
	 	Registered
	 	9/15/1998
	 	 	2,189,215	 	 	 	75/318,925	 	 	USA
	 	IC 006
	 	Metal industrial safety grating
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	GMS GENESIS (and design)

	 	
	 	Registered
	 	2/25/1997
	 	 	2,063,254	 	 	 	75/119,091	 	 	USA
	 	IC 006
	 	Raised metal access flooring
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	ORNAMESH

	 	ORNAMESH
	 	Registered
	 	6/27/1995
	 	 	1,901,456	 	 	 	74/532,516	 	 	USA
	 	IC 006
	 	Ornamental metal gratings
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	SAFETY GRIP

	 	SAFETY GRIP
	 	Registered
	 	4/4/2000
	 	 	2,337,053	 	 	 	75/330,898	 	 	USA
	 	IC 006
	 	Metal flooring
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	SECURA FENCE SYSTEM

	 	SECURA FENCE SYSTEM
	 	Registered
	 	7/11/1995
	 	 	1,904,092	 	 	 	74/533,654	 	 	USA
	 	IC 006
	 	Metal fencing system consisting of expanded metal fence sections, posts, fittings, rails and gates





 


S-44









 





	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	Registration	 	Registration	 	Application	 	 	 	 	 	 
	Mark	 	Image	 	Status	 	Date	 	Number	 	Number	 	Country	 	Class	 	Goods or Services
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	SECURA LATH

	 	SECURA LATH
	 	Registered
	 	9/26/1995
	 	 	1,921,479	 	 	 	74/575,870	 	 	USA
	 	IC 006
	 	Metal lathing
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	SECURA MESH

	 	SECURA MESH
	 	Registered
	 	7/11/1995
	 	 	1,904,088	 	 	 	74/532,515	 	 	USA
	 	IC 006
	 	Metal partitions and enclosure systems of expanded metal comprising expanded metal sections, posts, doors and hardware
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	STAY-FORM

	 	STAY-FORM
	 	Registered
	 	6/20/1995
	 	 	1,900,341	 	 	 	74/532,517	 	 	USA
	 	IC 006
	 	Expanded metal concrete forms
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	ZIP STRIP

	 	ZIP STRIP
	 	Registered
	 	8/8/1995
	 	 	1,910,087	 	 	 	74/532,798	 	 	USA
	 	IC 019
	 	Vinyl trim stop for drywall, stucco and veneer applications
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	APPLETON BUILDING PRODUCTS (and design)

	 	
	 	Registered
	 	7/24/2007
	 	 	3,270,024	 	 	 	78/745,852	 	 	USA
	 	IC 006
	 	Metal building products; namely, flashings, roof edgings, wind braces, gravel stops, ridge rolls, gutter aprons, hardboard siding corners, brick molding covers, H molding joint covers, J channel, roll aluminum and roll steel, brick bonds, flashing shingles, starter strips, drywall corner beads, soffit panels, soffit trim and fascia





 


S-45









 





	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	Registration	 	Registration	 	Application	 	 	 	 	 	 
	Mark	 	Image	 	Status	 	Date	 	Number	 	Number	 	Country	 	Class	 	Goods or Services
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	AS (and design)

	 	
	 	Registered
	 	12/29/1992
	 	 	1,759,443	 	 	 	74/230,736	 	 	USA
	 	IC 006
	 	Metal building products; namely, flashings, roof edgings, wind braces, gravel stops, ridge rolls, gutter aprons, hardboard siding corners, brick molding covers, H molding joint covers, roll aluminum and roll steel, brick bonds, flashing shingles, starter strips and drywall corner beads
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	SELL-EVEN BUILDING PRODUCTS

	 	SELL-EVEN BUILDING PRODUCTS
	 	Registered
	 	10/6/1992
	 	 	1,721,382	 	 	 	74/230,245	 	 	USA
	 	IC 006
	 	Metal building products; namely, soffits, siding, gutters and coiled aluminum sold in bulk
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	SELL-EVEN BUILDING PRODUCTS (and design)

	 	
	 	Registered
	 	10/6/1992
	 	 	1,721,386	 	 	 	74/230,951	 	 	USA
	 	IC 006
	 	Metal building products; namely, soffits, siding, gutters and coiled aluminum sold in bulk
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	DELCRETE

	 	DELCRETE
	 	Registered
	 	1/3/1989
	 	 	1,518,915	 	 	 	73733176	 	 	USA
	 	IC 019
	 	Elastomeric concrete for construction of pavement joints.
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	DELCRETE

	 	DELECREETE
	 	Registered
	 	2/11/1993
	 	 	440,290	 	 	 	n/a	 	 	Mexico
	 	IC 019
	 	Concreto Elastomerico para de uniones de pavimento
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	STEELFLEX

	 	STEELFLEX
	 	Registered
	 	5/20/1997
	 	 	2,062,964	 	 	 	75082004	 	 	USA
	 	IC 006
	 	Strip seal expansion joint systems composed of steel profiles, reinforcing steel, steel anchors and neoprene glands, sold as a unit.
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	DELASTIC

	 	DELASTIC
	 	Registered
	 	10/14/1997
	 	 	2,104,782	 	 	 	75/082,079	 	 	USA
	 	IC 017
	 	Preformed elastomeric compression sealing strips for concrete pavement.





 


S-46









 





	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	Registration	 	Registration	 	Application	 	 	 	 	 	 
	Mark	 	Image	 	Status	 	Date	 	Number	 	Number	 	Country	 	Class	 	Goods or Services
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	EXODERMIC

	 	EXODERMIC
	 	Registered
	 	8/5/2003
	 	 	2,747,531	 	 	 	75/642,180	 	 	USA
	 	IC 42
	 	CONSULTATION AND PROVIDING INFORMATION RELATED TO COMPOSITE BRIDGE DECKS COMPRISED OF UNFILLED GRID AND STRUCTURAL SLAB.
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	EXODERMIC

	 	EXODERMIC
	 	Registered
	 	8/31/2004
	 	 	2,879,486	 	 	 	78/281,391	 	 	USA
	 	IC 019
	 	composite bridge decks comprised of unfilled grids and structural slabs, composed primarily of concrete and other non-metal compositions.
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	DELASTIC-LS

	 	
	 	Registered
	 	7/13/2010
	 	 	3,816,291	 	 	 	77/657,458	 	 	USA
	 	IC 017
	 	Two-part urethane sealant and primer, sold together as a unit, for use on engineered joints on bridges and roads.
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	TRANSPATCH

	 	
	 	Pending
	 	n/a
	 	 	n/a	 	 	 	77/581,316	 	 	USA
	 	IC 019
	 	Concrete and asphalt pavement repair material, namely, tar-based concrete and asphalt patching compound.
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	MATRIX PREMIX

	 	
	 	Pending
	 	n/a
	 	 	n/a	 	 	 	77/696,995	 	 	USA
	 	IC 019
	 	Pre-packaged bridge expansion joint filler.
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	WEATHER-VENT

	 	WEATHER-VENT
	 	Registered
	 	5/31/2005
	 	 	2,956,738	 	 	 	76/581,717	 	 	USA
	 	IC 006
	 	Metal vents to be used on roofs
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	025

	 	 	025	 	 	Registered
	 	9/19/1961
	 	 	0,721,610	 	 	 	72/097,234	 	 	USA
	 	IC 011
	 	Cap assemblies for gas vents





 


S-47









 





	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	Registration	 	Registration	 	Application	 	 	 	 	 	 
	Mark	 	Image	 	Status	 	Date	 	Number	 	Number	 	Country	 	Class	 	Goods or Services
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	GENERAL METALCRAFT PRODUCTS (and design)

	 	
	 	Registered
	 	1/11/2000
	 	 	2,307,147	 	 	 	75/502,001	 	 	USA
	 	IC 006
	 	Metal building products, namely, gutters, downspouts, flashings, roof vents, and HVAC ducting
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	M&N PLASTICS

	 	M&N PLASTICS
	 	Registered
	 	12/26/2006
	 	 	3,188,869	 	 	 	78/652,448	 	 	USA
	 	IC 019
	 	Fabricated plastic products, namely area wells for building ventilation, vents for buildings, namely cap vents, foundation vents, gable vents, ridge vents, roof vents, soffit vents, and stem vents.
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	NOLL

	 	NOLL
	 	Registered
	 	9/19/1961
	 	 	0,721,611	 	 	 	72/097,235	 	 	USA
	 	IC 011
	 	Cap assemblies for gas vents
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	NORWESCO

	 	NORWESCO
	 	Registered
	 	10/5/1965
	 	 	0,796,980	 	 	 	72/202,117	 	 	USA
	 	IC 021
	 	Fabricated metal products, namely, pails, tubs, garbage cans, mailboxes, and sprinkling cans.
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	NORWESCO

	 	NORWESCO
	 	Registered
	 	9/7/1965
	 	 	0,795,437	 	 	 	72/202,118	 	 	USA
	 	IC 006 IC 017 IC 019
	 	Fabricated metal products namely, downspouts, gutters, roof ventilators, shower stalls, and window wells.
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	NORWESCO

	 	NORWESCO
	 	Registered
	 	9/7/1965
	 	 	0,795,498	 	 	 	72/202,119	 	 	USA
	 	IC 012
	 	Wheelbarrows





 


S-48









 





	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	Registration	 	Registration	 	Application	 	 	 	 	 	 
	Mark	 	Image	 	Status	 	Date	 	Number	 	Number	 	Country	 	Class	 	Goods or Services
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	NORWESCO

	 	NORWESCO
	 	Registered
	 	11/28/2006
	 	 	3,176,210	 	 	 	78/616,966	 	 	USA
	 	IC 006
 IC 012
 IC
019
 IC 021
	 	Fabricated metal products, namely, mail boxes, downspouts, gutters, roof vents for ventilation, window wells, metal HVAC pipe and ducts, namely pipes, ducts, adjustable angles, boots, boxes, caps, collars, elbows, filter slides, increasers, plugs, reducers, saddles, spin-ins, stands, tees, and wyes for HVAC ducts; Wheelbarrows;
Fabricated plastic products, namely, area wells for building ventilation, vents for buildings, namely, cap vents, foundation
vents, gable vents, ridge vents, roof vents, soffit vents, and stem vents; Fabricated metal products, namely, pails, water tubs, garbage cans, and watering cans.
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	VENT AIR

	 	VENT AIR
	 	Registered
	 	12/5/2006
	 	 	3,179,511	 	 	 	78/617,039	 	 	USA
	 	IC 019
 IC 020
	 	Fabricated plastic products for use in household construction, namely, cap vent covers, foundation vent covers, gable vent covers, ridge vent covers, roof vent covers, soffit vent covers, and stem vent covers for roof, wall, and building foundations; Fabricated plastic products for use in household construction, namely, non-metal ventilating ducts utilizing end cap vents, foundation vents, gable vents, ridge vents, roof vents, soffit vents, and stem vents.





 


S-49









 





	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	Registration	 	Registration	 	Application	 	 	 	 	 	 
	Mark	 	Image	 	Status	 	Date	 	Number	 	Number	 	Country	 	Class	 	Goods or Services
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	STEALTH

	 	STEALTH
	 	Registered
	 	9/28/1999
	 	 	2,282,019	 	 	 	75329757	 	 	USA
	 	IC 006 
and
 IC 020
	 	IC 006: roof vents for residential and commercial buildings primarily made of metal. IC 020: non-metal roof vents residential and commercial buildings
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	SNAPIE TIES

	 	SNAPIE TIES
	 	Registered
	 	2/18/1986
	 	 	1,383,007	 	 	 	73/538,122	 	 	USA
	 	IC 006
	 	METAL WALL TIES AND SHOES FOR CASTING CONCRETE PRODUCTS
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	AWARD STONECOAT

	 	AWARD STONECOAT
	 	Registered
	 	10/5/1999
	 	 	2,283,817	 	 	 	75335015	 	 	USA
	 	IC 019
	 	adhesive and crushed stone based coatings for roof flashing and roof vent structures
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	RAP-I-FORM

	 	
	 	Registered
	 	9/28/1982
	 	 	1,210,253	 	 	 	73326025	 	 	USA
	 	IC 006
	 	Metal Clips for Securing Concrete Foundation Forms
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	POWER BEAD

	 	
	 	Registered
	 	3/4/2008
	 	 	3,393,273	 	 	 	78863728	 	 	USA
	 	IC 006
	 	Metal drywall corner bead with paper facing for use in building construction
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	SUN LINE

	 	
	 	Registered
	 	2/14/2006
	 	 	3,058,800	 	 	 	78463444	 	 	USA
	 	IC 006
	 	Metal drywall corner bead with paper facing for use in building construction
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	MINI BEAD

	 	 	 	 	 	Registered
	 	4/4/2006
	 	 	3,077,946	 	 	 	78531055	 	 	USA
	 	IC 017
	 	METAL DRYWALL CORNER BEAD WITH PAPER FACING FOR USE IN BUILDING CONSTRUCTION





 


S-50









 





	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	Registration	 	Registration	 	Application	 	 	 	 	 	 
	Mark	 	Image	 	Status	 	Date	 	Number	 	Number	 	Country	 	Class	 	Goods or Services
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	MINIBULL

	 	 	 	 	 	Registered
	 	11/21/2006
	 	 	3,175,110	 	 	 	78/531,056	 	 	USA
	 	IC 006
	 	Metal drywall corner bead with paper facing for use in building construction
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	READY-VENT

	 	READY-VENT
	 	Registered
	 	3/28/2000
	 	 	2,336,522	 	 	 	75/342,980	 	 	USA
	 	IC 011
	 	foundation ventilators to use in residential and light industrial buildings
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	NIFTY-FIFTY

	 	 	 	 	 	Registered
	 	5/7/2002
	 	 	2,568,162	 	 	 	75/926,697	 	 	USA
	 	IC 011
	 	Roof Ventilators
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	SEASAFE (and design)

	 	
	 	Registered
	 	4/3/2001
	 	 	2,439,864	 	 	 	75/562,870	 	 	USA
	 	IC 019
	 	Fiber and resin molded trays, gratings and structural shapes for use in industrial and commercial applications, all sold as a unit; custom manufacture of fiber and resin molded trays, gratings and structural shapes for use in industrial and commercial applications
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	GATOR-GRATE

	 	
	 	Registered
	 	2/12/1985
	 	 	1,319,387	 	 	 	73/445594	 	 	USA
	 	IC 019
	 	Fiberglass Grating for Industrial Floorand Stair Tread Uses
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	AIRHAWK

	 	AIRHAWK
	 	Registered
	 	4/11/1995
	 	 	1,889,235	 	 	 	74/447,442	 	 	USA
	 	IC 011
	 	Roof ventilators, louver-type ventilators, foundation vents and roof and attic fans for residential and commercial use





 


S-51









 





	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	Registration	 	Registration	 	Application	 	 	 	 	 	 
	Mark	 	Image	 	Status	 	Date	 	Number	 	Number	 	Country	 	Class	 	Goods or Services
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	ARTCRAFT

	 	ARTCRAFT
	 	Registered
	 	6/6/2006
	 	 	3,100,404	 	 	 	78/593,252	 	 	USA
	 	IC 006
	 	Mailboxes, mailbox support posts and bases, newspaper boxes, and decorative finials, post caps, and mounting brackets for the above, all made primarily of metal; street signs, street sign support posts, street sign brackets, all made primarily of metal
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	EASY UP (and design)

	 	 	 	 	 	Registered
	 	10/8/1996
	 	 	2,006,214	 	 	 	75/013,693	 	 	USA
	 	IC 006
IC 011
IC 020
	 	Metal goods, namely drive-in post anchors, T-bracing and flat wall bracing, door viewers and knockers, door finger pulls, door stops, handrail brackets, cabinet catches, metal closet rods, sash locks, sash lifts, closet hinges, metal rod chairs for supporting reinforcing bars used in concrete construction, soffit ventilators, house numbers, metal mailboxes, mailbox post mounts,
mailbox post supports, mail slots, mailbox mounting hardware, namely metal mounting brackets,
screws and bolts; metal static roof vents, metal ridge vents, metal ventilating lovers, soffit strips, foundation vents;
Turbine ventilators and powered ventilators for domestic use; Non-metal mailboxes, non-metal mailbox house mounts, non-metal
house numbers, non-metal house number supports, non-metal mailbox flags, non-metal wall bumpers, non-metal roof vents, non-metal
ridge vents, non-metal storage hooks





 


S-52









 





	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	Registration	 	Registration	 	Application	 	 	 	 	 	 
	Mark	 	Image	 	Status	 	Date	 	Number	 	Number	 	Country	 	Class	 	Goods or Services
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	HANG STUFF (and design)

	 	
	 	Registered
	 	9/9/1980
	 	 	1,139,387	 	 	 	73/205,314	 	 	USA
	 	IC 006
	 	Wall mounted adjustable tool holders made of metal
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	MAILSAFE (and design)

	 	
	 	Registered
	 	7/2/1996
	 	 	1,984,693	 	 	 	74/595,017	 	 	USA
	 	IC 020
	 	Non-metal mail boxes
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	POST L POST

	 	POST L POST
	 	Registered
	 	7/15/1969
	 	 	0,872,869	 	 	 	72/310,288	 	 	USA
	 	IC 006
	 	Metal posts for mounting rural mail boxes
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	SIMPL STORAGE

	 	SIMPL STORAGE
	 	Registered
	 	3/13/2007
	 	 	3,219,028	 	 	 	78/555,053	 	 	USA
	 	IC 020
	 	Plastic shelving systems comprised of plastic shelves, plastic columns, plastic drawers, plastic closet rods, plastic uprights, plastic closet shelving
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	THE BRUTE (stylized)

	 	
	 	Registered
	 	5/30/1989
	 	 	1,541,576	 	 	 	73/747,770	 	 	USA
	 	IC 020
	 	Non-metal rural mailboxes
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	THE ESTATE SERIES

	 	THE ESTATE SERIES
	 	Registered
	 	11/19/2002
	 	 	2,652,518	 	 	 	76/167,826	 	 	USA
	 	IC 006
	 	Rural metal mailboxes, metal posts for supporting mailboxes, metal fasteners for securing post components to each other





 


S-53









 





	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	Registration	 	Registration	 	Application	 	 	 	 	 	 
	Mark	 	Image	 	Status	 	Date	 	Number	 	Number	 	Country	 	Class	 	Goods or Services
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	THE GENTRY

	 	THE GENTRY
	 	Registered
	 	2/10/2004
	 	 	2,812,677	 	 	 	76/498,613	 	 	USA
	 	IC 020
	 	Plastic rural mailboxes and plastic posts for rural mailboxes
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	THE ULTIMATE RIDGE VENT

	 	THE ULTIMATE RIDGE VENT
	 	Registered
	 	7/9/2002
	 	 	2,591,184	 	 	 	76/235,253	 	 	USA
	 	IC 019
	 	Non-metallic building materials, namely roofing ridge vents and vent strips
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	ESTATE

	 	ESTATE
	 	Pending
	 	n/a
	 	 	n/a	 	 	 	77/616,292	 	 	USA
	 	IC 006
	 	Metal fasteners, namely, bolts, screws, rivets, nails, brackets and fittings for securing mailbox and mailbox post components together; metal mailboxes; metal posts
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	BERKSHIRE

	 	BERKSHIRE
	 	Registered
	 	1/11/2005
	 	 	2,917,510	 	 	 	78/353,597	 	 	USA
	 	IC 006
	 	Metal mail boxes
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	FIRST CLASS

	 	FIRST CLASS
	 	Registered
	 	10/30/2007
	 	 	3,325,892	 	 	 	78/534,588	 	 	USA
	 	IC 006
 IC 020
	 	Metal mail boxes; Non-metal mail boxes
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	POSTMASTER

	 	POSTMASTER
	 	Registered
	 	11/7/2000
	 	 	2,402,352	 	 	 	75/350,207	 	 	USA
	 	IC 006 
IC 020
	 	Metal mail boxes and accessories, namely, mounting brackets and shelf expanders; Non-metal mail boxes and accessories, namely, mounting brackets and shelf expanders
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	POSTMASTER MAILBOX (and design)

	 	
	 	Registered
	 	6/25/1991
	 	 	1,648,645	 	 	 	74/025,603	 	 	USA
	 	IC 006
 IC 020
	 	Stakes used to support mailboxes; Mailboxes and covers therefor
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	THE IRONSIDE

	 	THE IRONSIDE
	 	Registered
	 	3/19/2002
	 	 	2,550,239	 	 	 	75/350,209	 	 	USA
	 	IC 006
	 	Mail boxes made predominately of metal
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	HERITAGE

	 	HERITAGE
	 	Pending
	 	n/a
	 	 	n/a	 	 	 	85/093960	 	 	USA
	 	IC 020
	 	Non-metal mailboxes





 


S-54









 





	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	Registration	 	Registration	 	Application	 	 	 	 	 	 
	Mark	 	Image	 	Status	 	Date	 	Number	 	Number	 	Country	 	Class	 	Goods or Services
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	THE BIG EASY

	 	THE BIG EASY
	 	Pending
	 	n/a
	 	 	n/a	 	 	 	85/410562	 	 	USA
	 	IC 020
	 	Non-metal mailboxes
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	MAILSAFE

	 	MAILSAFE
	 	Pending
	 	n/a
	 	 	n/a	 	 	 	85/321988	 	 	USA
	 	IC 006
	 	Metal mailboxes
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	MAIL MAX

	 	Mail Max
	 	Pending
	 	n/a
	 	 	n/a	 	 	 	85/093746	 	 	USA
	 	IC 006
	 	Metal mailboxes
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	COPPERXT

	 	COPPERXT
	 	Registered
	 	9/9/2008
	 	 	3,499,865	 	 	 	77/230,573	 	 	USA
	 	IC 006
	 	Metal and metallic composite products, in particular copper bonded to stainless steel, used in building and construction materials, namely, roofing materials, roof coverings, roofing panels, roofing trims, eave drips, trims, flashing and ventilation products for use in residential and commercial buildings
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	GH (and design)

	 	
	 	Registered
	 	10/14/2008
	 	 	3,516,869	 	 	 	76/671,372	 	 	USA
	 	IC 006
	 	Gutter rain water deflectors made primarily of metal.
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	GUTTER HELMET

	 	GUTTER HELMET
	 	Registered
	 	3/28/1989
	 	 	1,531,983	 	 	 	73/698,205	 	 	USA
	 	IC 019
	 	Rain water gutter deflectors and associated hardware therefor sold as a unit therewith.
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	NEVER CLEAN YOUR GUTTERS AGAIN!

	 	NEVER CLEAN YOUR GUTTERS AGAIN!
	 	Registered
	 	7/27/1999
	 	 	2,264,723	 	 	 	75/484,077	 	 	USA
	 	IC 006
	 	Gutter rain water deflectors made primarily of metal





 


S-55









 





	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	Registration	 	Registration	 	Application	 	 	 	 	 	 
	Mark	 	Image	 	Status	 	Date	 	Number	 	Number	 	Country	 	Class	 	Goods or Services
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	SM (and design)

	 	
	 	Registered
	 	4/11/1978
	 	 	1,089,047	 	 	 	73/121,768	 	 	USA
	 	IC 006
	 	Metal building and construction products-namely, hurricane clips, wall ties, valleys, gravel stops, downspouts and guttering, termite shields, joist hangers, and rod chairs
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	THE BEAUTY OF COPPER. THE STRENGTH OF STEEL.

	 	THE BEAUTY OF COPPER. THE STRENGTH OF STEEL.
	 	Registered
	 	8/5/2008
	 	 	3,480,169	 	 	 	77/362,411	 	 	USA
	 	IC 006
	 	Metal and metallic composite products, in particular copper bonded to stainless steel, used in building and construction materials, namely, roofing materials, roof coverings, roofing panels, roofing trims, eave drips, trims, flashing and ventilation products for use in residential and commercial buildings
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	TRUSTED QUALITY TESTED STRENGTH

	 	TRUSTED QUALITY TESTED STRENGTH
	 	Registered
	 	1/13/2009
	 	 	3,561,481	 	 	 	76/671,371	 	 	USA
	 	IC 006
	 	Metal building and metal construction products — namely steel framing, gutters, downspouts, lath, storm panels, ridge and hip plates, patio covers, concrete and masonry foundation connectors, column and post connectors, floor and deck connectors, roof and truss connectors, wall connectors, steel deck panels, eave drip, roof edge, gutter deflectors, flashing, gravel stops and cover plates, valleys and rail diverters metal roofing, corner beads, soffits, hurricane clips,
 wall ties, girder shields, termite shields, joist hangers and rod chairs, metal roof vents for ventilation in residential and commercial buildings





 


S-56









 





	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	Registration	 	Registration	 	Application	 	 	 	 	 	 
	Mark	 	Image	 	Status	 	Date	 	Number	 	Number	 	Country	 	Class	 	Goods or Services
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	DIAMOND

	 	DIAMOND
	 	Registered
	 	4/20/2010
	 	 	3,778,835	 	 	 	77/512,075	 	 	USA
	 	IC 006
	 	Metal building framing materials, namely, wall, ceiling, roof and floor framing materials made primarily of embossed metal
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	MICRO-CS

	 	MICRO-CS
	 	Registered
	 	9/21/2010
	 	 	3,850,776	 	 	 	77/618,888	 	 	USA
	 	IC 019
	 	Gutter rain water protection panels with screens made from metal
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	CLEAN MESH

	 	CLEAN MESH
	 	Pending
	 	n/a
	 	 	n/a	 	 	 	85/323130	 	 	USA
	 	IC 006
	 	Metal Debris guards for gutters










 


S-57











 





See attached list of Patents




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	Application	 	Patent	 	Type	 	Filing	 	Date	 	 
	Title	 	Number	 	Number	 	(U/D)	 	Date	 	Issued	 	Country
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Externally baffled ridge vent and methods of manufacture and use

	 	 	10/970,302	 	 	 	6,991,535	 	 	U
	 	10/21/2004
	 	1/31/2006
	 	USA
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	End-ventilating adjustable pitch arcuate roof ventilator

	 	 	09/973,259	 	 	 	6,482,084	 	 	U
	 	10/9/2001
	 	11/19/2002
	 	USA
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Multi-baffled roof ridge vent

	 	 	09/307,304	 	 	 	6,128,869	 	 	U
	 	5/7/1999
	 	10/10/2000
	 	USA
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	End-ventilating adjustable pitch arcuate roof ventilator

	 	 	09/447,666	 	 	 	6,149,517	 	 	U
	 	11/23/1999
	 	11/21/2000
	 	USA





 


S-58









 





	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	Application	 	Patent	 	Type	 	Filing	 	Date	 	 
	Title	 	Number	 	Number	 	(U/D)	 	Date	 	Issued	 	Country
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Externally baffled ridge vent and methods of manufacture and use

	 	 	10/610,067	 	 	 	6,881,144	 	 	U
	 	6/20/2003
	 	4/19/2005
	 	USA
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	End-ventilating adjustable pitch arcuate roof ventilator

	 	 	09/711,370	 	 	 	6,299,528	 	 	U
	 	11/10/2000
	 	10/9/2001
	 	USA
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Vent with presecured mechanical fasteners

	 	 	10/600,397	 	 	 	6,793,574	 	 	U
	 	6/20/2003
	 	9/21/2004
	 	USA
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Ventilator

	 	 	07/443,215	 	 	 	4,962,882	 	 	U
	 	11/27/1989
	 	10/16/1990
	 	USA





 


S-59









 





	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	Application	 	Patent	 	Type	 	Filing	 	Date	 	 
	Title	 	Number	 	Number	 	(U/D)	 	Date	 	Issued	 	Country
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Adjustable filtered roof ridge ventilator

	 	 	07/664,394	 	 	 	5,122,095	 	 	U
	 	3/4/1991
	 	6/16/1992
	 	USA
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Temperature and humidity sensitive high efficiency exhaust ventilator apparatus

	 	 	07/882,182	 	 	 	5,253,804	 	 	U
	 	5/12/1992
	 	10/19/1993
	 	USA
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Thrust bearing assembly for roof turbine

	 	 	07/947,741	 	 	 	5,326,313	 	 	U
	 	9/21/1992
	 	7/5/1994
	 	USA
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Power temp vent duct system

	 	 	08/020,686	 	 	 	5,294,049	 	 	U
	 	2/22/1993
	 	3/15/1994
	 	USA





 


S-60









 





	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	Application	 	Patent	 	Type	 	Filing	 	Date	 	 
	Title	 	Number	 	Number	 	(U/D)	 	Date	 	Issued	 	Country
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Rollable ridge vent

	 	 	29/209,647	 	 	 	D511,847	 	 	D
	 	7/19/2004
	 	11/22/2005
	 	USA
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Rollable ridge vent

	 	 	29/210,091	 	 	 	D511,848	 	 	D
	 	7/27/2004
	 	11/22/2005
	 	USA
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Off-peak intake vent

	 	 	29/297,913	 	 	 	D574,947	 	 	D
	 	11/21/2007
	 	8/12/2008
	 	USA
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Externally baffled ridge vent

	 	 	11/238,315	 	 	 	n/a	 	 	U
	 	9/29/2005
	 	n/a
	 	USA
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Plaster security barrier system

	 	 	08/399,566	 	 	 	5,697,195	 	 	U
	 	3/7/1995
	 	12/16/1997
	 	USA





 


S-61









 





	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	Application	 	Patent	 	Type	 	Filing	 	Date	 	 
	Title	 	Number	 	Number	 	(U/D)	 	Date	 	Issued	 	Country
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Stucco arch casing bead

	 	 	08/703,013	 	 	 	5,699,638	 	 	U
	 	8/26/1996
	 	12/23/1997
	 	USA
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Fastener clip for security wall system

	 	 	09/226,048	 	 	 	6,367,216	 	 	U
	 	1/4/1999
	 	4/9/2002
	 	USA
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Stucco reveal connection system

	 	 	08/724,355	 	 	 	5,761,866	 	 	U
	 	10/1/1996
	 	6/9/1998
	 	USA
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Contoured stucco reveal

	 	 	10/007,249	 	 	 	6,609,341	 	 	U
	 	11/13/2001
	 	8/26/2003
	 	USA
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Door frame reinforcing structure

	 	 	09/359,600	 	 	 	6,178,700	 	 	U
	 	7/23/1999
	 	1/30/2001
	 	USA





 


S-62









 





	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	Application	 	Patent	 	Type	 	Filing	 	Date	 	 
	Title	 	Number	 	Number	 	(U/D)	 	Date	 	Issued	 	Country
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Banding bead

	 	 	08/008,537	 	 	 	5,423,154	 	 	U
	 	1/25/1993
	 	6/13/1995
	 	USA
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Fence system

	 	 	08/058,577	 	 	 	5,421,557	 	 	U
	 	5/6/1993
	 	6/6/1995
	 	USA
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Fence system

	 	 	08/407,616	 	 	 	5,556,080	 	 	U
	 	3/21/1995
	 	9/17/1996
	 	USA
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Connector clip for corner bead

	 	 	08/320,433	 	 	 	5,531,051	 	 	U
	 	10/7/1994
	 	7/2/1996
	 	USA
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Stucco reveal

	 	 	29/133,649	 	 	 	D456,528	 	 	D
	 	12/1/2000
	 	4/30/2002
	 	USA





 


S-63









 





	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	Application	 	Patent	 	Type	 	Filing	 	Date	 	 
	Title	 	Number	 	Number	 	(U/D)	 	Date	 	Issued	 	Country
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Stucco casing bead

	 	 	29/156,923	 	 	 	D471,991	 	 	D
	 	3/8/2002
	 	3/18/2003
	 	USA
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Movement control screed

	 	 	11/293,023	 	 	 	n/a	 	 	U
	 	12/2/2005
	 	n/a
	 	USA
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Suspension Bridge Cable Wrap and Application Method

	 	 	00/069,701	 	 	 	5,390,386	 	 	U
	 	6/1/1993
	 	2/21/1995
	 	USA
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Suspension Bridge Cable Wrap and Application Method

	 	 	95300215.1	 	 	 	722015	 	 	n/a
	 	1/13/1995
	 	7/29/1998
	 	European
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Suspension Bridge Cable Wrap

	 	 	9501001	 	 	 	197,238	 	 	n/a
	 	2/17/1995
	 	6/28/2000
	 	Mexico





 


S-64









 





	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	Application	 	Patent	 	Type	 	Filing	 	Date	 	 
	Title	 	Number	 	Number	 	(U/D)	 	Date	 	Issued	 	Country
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Suspension Bridge Cable Wrap and Application Method

	 	 	98113238.8	 	 	HK1012034
	 	n/a
	 	1/13/1995
	 	4/28/2000
	 	Hong Kong
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Suspension Bridge Cable Wrap and Application Method

	 	 	n/a	 	 	 	2,140,062	 	 	n/a
	 	1/12/1995
	 	3/2/2004
	 	Canada
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Suspension Bridge Cable Tubelar Article Wrap and Application Method

	 	 	n/a	 	 	ZL95100371.2
	 	n/a
	 	1/27/1995
	 	1/7/2004
	 	China
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Improved Exodermic Deck System

	 	 	n/a	 	 	 	2,239,727	 	 	n/a
	 	12/6/1996
	 	9/6/2005
	 	Canada
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Exodermic Deck System

	 	 	00/183,945	 	 	 	5,509,243	 	 	U
	 	1/21/1994
	 	4/23/1996
	 	USA





 


S-65









 





	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	Application	 	Patent	 	Type	 	Filing	 	Date	 	 
	Title	 	Number	 	Number	 	(U/D)	 	Date	 	Issued	 	Country
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Exodermic Deck System

	 	 	08/568,464	 	 	 	5,664,378	 	 	U
	 	12/7/1995
	 	9/9/1997
	 	USA
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Prestressed or Post-Tension Composite Structural System

	 	 	10/725,185	 	 	 	7,197,854	 	 	U
	 	12/1/2003
	 	4/3/2007
	 	USA
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	System and Method for Electroslag Welding an Expansion Joint Rail

	 	 	10/712,390	 	 	 	7,038,159	 	 	U
	 	11/12/2003
	 	5/2/2006
	 	USA
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Improved Exodermic Deck System

	 	 	n/a	 	 	 	2,181,554	 	 	n/a
	 	1/20/1995
	 	9/6/2005
	 	Canada
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Method of Installing Elongate Strip Seals

	 	 	12/474,495	 	 	 	n/a	 	 	n/a
	 	5/29/2009
	 	n/a
	 	USA





 


S-66









 





	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	Application	 	Patent	 	Type	 	Filing	 	Date	 	 
	Title	 	Number	 	Number	 	(U/D)	 	Date	 	Issued	 	Country
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Cylindrical

	 	 	12/831,812	 	 	n/a
	 	n/a
	 	7/7/2010
	 	n/a
	 	USA
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Title

	 	Application Number
	 	Patent

Number
	 	Type

(U/D)
	 	Filing Date
	 	Date Issued
	 	Country
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Portions of post mountable mail boxes

	 	 	29/185,753	 	 	 	D499,225	 	 	D
	 	7/2/2003
	 	11/30/2004
	 	USA
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Portions of roadside mail boxes

	 	 	29/185,752	 	 	 	D499,524	 	 	D
	 	7/2/2003
	 	12/7/2004
	 	USA
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Portions of a post supportable mail box

	 	 	29/185,750	 	 	 	D501,594	 	 	D
	 	7/2/2003
	 	2/1/2005
	 	USA





 


S-67









 





	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	Application	 	Patent	 	Type	 	Filing	 	Date	 	 
	Title	 	Number	 	Number	 	(U/D)	 	Date	 	Issued	 	Country
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Portions of post mountable mail boxes

	 	 	29/185,751	 	 	 	D503,504	 	 	D
	 	7/2/2003
	 	3/29/2005
	 	USA
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Portions of a post supported mail box

	 	 	29/185,747	 	 	 	D503,844	 	 	D
	 	7/2/2003
	 	4/5/2005
	 	USA
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Portions of a post for supporting mail boxes

	 	 	29/185,748	 	 	 	D503,845	 	 	D
	 	7/2/2003
	 	4/5/2005
	 	USA
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Portions of central connector post and locking elements associated therewith for cluster box mail delivery receptacles

	 	 	29/208,350	 	 	 	D536,155	 	 	D
	 	6/29/2004
	 	1/30/2007
	 	USA
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Portions of master door locking components of cluster box mail delivery receptacles

	 	 	29/208,351	 	 	 	D543,335	 	 	D
	 	6/29/2004
	 	5/22/2007
	 	USA





 


S-68









 





	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	Application	 	Patent	 	Type	 	Filing	 	Date	 	 
	Title	 	Number	 	Number	 	(U/D)	 	Date	 	Issued	 	Country
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Exterior portions of guard assemblies for parcel door locking systems of cluster box unit mail delivery receptacles

	 	 	29/208,364	 	 	 	D547,025	 	 	D
	 	6/29/2004
	 	7/17/2007
	 	USA
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Upper and lower portions of fronts of cluster box mail delivery receptacles

	 	 	29/208,352	 	 	 	D549,424	 	 	D
	 	6/29/2004
	 	8/21/2007
	 	USA
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Roadside mail boxes and support posts for roadside mail box

	 	 	10/881,797	 	 	 	n/a	 	 	U
	 	unknown
	 	n/a
	 	USA
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Pivotal bin mail boxes and pivotal support posts for mail boxes

	 	 	10/881,799	 	 	 	n/a	 	 	U
	 	unknown
	 	n/a
	 	USA
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Portions of shelf box connectors, and shelf box portions connected therewith for use in cluster box mail delivery receptacles

	 	 	29/208,345	 	 	 	n/a	 	 	D
	 	unknown
	 	n/a
	 	USA





 


S-69









 





	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	Application	 	Patent	 	Type	 	Filing	 	Date	 	 
	Title	 	Number	 	Number	 	(U/D)	 	Date	 	Issued	 	Country
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Front portions of pivotal doors of mail delivery receptacles

	 	 	29/208,349	 	 	 	n/a	 	 	D
	 	unknown
	 	n/a
	 	USA
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Engageable shelf and door portions of cluster box mail delivery receptacles

	 	 	29/208,353	 	 	 	n/a	 	 	D
	 	unknown
	 	n/a
	 	USA
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Portions of protective outer enclosures of cluster box mail delivery receptacles

	 	 	29/208,354	 	 	 	n/a	 	 	D
	 	unknown
	 	n/a
	 	USA
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Portions of a rectangular door frame for a cluster box mail delivery receptacle

	 	 	29/208,356	 	 	 	n/a	 	 	D
	 	unknown
	 	n/a
	 	USA
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Portions of master loading doors of cluster box mail delivery receptacles

	 	 	29/208,357	 	 	 	n/a	 	 	D
	 	unknown
	 	n/a
	 	USA





 


S-70









 





	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	Application	 	Patent	 	Type	 	Filing	 	Date	 	 
	Title	 	Number	 	Number	 	(U/D)	 	Date	 	Issued	 	Country
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Portions of main doors of cluster box mail delivery receptacles

	 	 	29/208,358	 	 	 	n/a	 	 	D
	 	unknown
	 	n/a
	 	USA
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Portions of a dual member hinge for doors

	 	 	29/208,359	 	 	 	n/a	 	 	D
	 	unknown
	 	n/a
	 	USA
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Front portions of pivotally moveable doors of mail delivery receptacles

	 	 	29/208,360	 	 	 	n/a	 	 	D
	 	unknown
	 	n/a
	 	USA
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Exterior portions of cluster box unit mail delivery receptacles

	 	 	29/208,361	 	 	 	n/a	 	 	D
	 	unknown
	 	n/a
	 	USA
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Exterior portions of cluster box mail delivery receptacles

	 	 	29/208,363	 	 	 	n/a	 	 	D
	 	unknown
	 	n/a
	 	USA





 


S-71









 





	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	Application	 	Patent	 	Type	 	Filing	 	Date	 	 
	Title	 	Number	 	Number	 	(U/D)	 	Date	 	Issued	 	Country
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Portions of door rigidifying extrusion for cluster box mail delivery receptacles, and portion of louver assembly formed therewith

	 	 	29/208,368	 	 	 	n/a	 	 	D
	 	unknown
	 	n/a
	 	USA
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Cluster box mail delivery receptacles

	 	Provisional Application No. 60/583,419; Non-provisional Application No. 11/168,471; Non-provisional Application No. 11/168,302
	 	 	—	 	 	—
	 	—
	 	—
	 	USA
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Foundation vent

	 	 	08/015,605	 	 	 	5,444,947	 	 	U
	 	2/9/1993
	 	8/29/1995
	 	USA
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Foundation ventilator

	 	 	08/064,404	 	 	 	5,460,572	 	 	U
	 	5/18/1993
	 	10/24/1995
	 	USA





 


S-72









 





	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	Application	 	Patent	 	Type	 	Filing	 	Date	 	 
	Title	 	Number	 	Number	 	(U/D)	 	Date	 	Issued	 	Country
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Foundation vent

	 	 	08/156,412	 	 	 	5,496,213	 	 	U
	 	11/22/1993
	 	3/5/1996
	 	USA
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Multi-Part Foundation Ventilatorof Variable Preselected Width

	 	 	09/273,116	 	 	 	6,165,066	 	 	U
	 	3/19/1999
	 	12/26/2000
	 	USA
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Ridge Vent for Tile Roofs

	 	 	09/905,585	 	 	 	6,662,509B2	 	 	U
	 	7/21/2001
	 	12/16/2003
	 	USA
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Ridge Vent for Tile Roofs

	 	 	10/738,891	 	 	 	7,024,829B2	 	 	U
	 	12/16/2003
	 	4/11/2006
	 	USA
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Foundation Ventilator Plug

	 	 	29/102,327	 	 	 	D438,300S	 	 	D
	 	3/19/1999
	 	2/27/2001
	 	USA





 


S-73









 





	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	Application	 	Patent	 	Type	 	Filing	 	Date	 	 
	Title	 	Number	 	Number	 	(U/D)	 	Date	 	Issued	 	Country
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Small boat mooring system

	 	 	07/804,113	 	 	 	5,265,553	 	 	U
	 	12/6/1991
	 	11/30/1993
	 	USA
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Rotatable vent

	 	 	10/436,023	 	 	 	7,025,670	 	 	U
	 	5/12/2003
	 	4/11/2006
	 	USA
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Secure parcel receptacle, lock assembly therefore and associated method

	 	 	09/824,138	 	 	 	6,412,688	 	 	U
	 	4/2/2001
	 	7/2/2002
	 	USA
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Swivel post anchor

	 	 	08/937,757	 	 	 	5,884,874	 	 	U
	 	9/25/1997
	 	3/23/1999
	 	USA
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Mailbox support post

	 	 	11/030,031	 	 	 	7,311,291	 	 	U
	 	1/6/2005
	 	12/25/2007
	 	USA





 


S-74









 





	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	Application	 	Patent	 	Type	 	Filing	 	Date	 	 
	Title	 	Number	 	Number	 	(U/D)	 	Date	 	Issued	 	Country
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Roll type roof ridge ventilator and associated method

	 	 	09/772,611	 	 	 	6,684,581	 	 	U
	 	1/30/2001
	 	2/3/2004
	 	USA
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Roof ridge ventilation system

	 	 	07/643,223	 	 	 	5,095,810	 	 	U
	 	1/22/1991
	 	3/17/1992
	 	USA
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Modular shelving system

	 	 	11/048,838	 	 	 	7,686,173	 	 	U
	 	2/2/2005
	 	3/30/2010
	 	USA
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Nestable mailbox and method

	 	 	09/486,160	 	 	 	6,347,736	 	 	U
	 	2/22/2000
	 	2/19/2002
	 	USA
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Reinforced plastic mailbox

	 	 	11/052,591	 	 	 	7,086,581	 	 	U
	 	2/7/2005
	 	8/8/2006
	 	USA





 


S-75









 





	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	Application	 	Patent	 	Type	 	Filing	 	Date	 	 
	Title	 	Number	 	Number	 	(U/D)	 	Date	 	Issued	 	Country
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Ground mount post

	 	 	11/024,265	 	 	 	7,090,117	 	 	U
	 	12/28/2004
	 	8/15/2006
	 	USA
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Mailbox and support

	 	 	11/032,964	 	 	 	7,090,118	 	 	U
	 	1/11/2005
	 	8/15/2006
	 	USA
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Mailbox door with rain intercepting structure

	 	 	11/042,280	 	 	 	7,090,119	 	 	U
	 	1/25/2005
	 	8/15/2006
	 	USA
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Multiple component mailbox having postal and newspaper compartments

	 	 	11/047,976	 	 	 	7,104,436	 	 	U
	 	2/1/2005
	 	9/12/2006
	 	USA
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Multiple purpose newspaper box

	 	 	11/542,080	 	 	 	7,201,306	 	 	U
	 	10/3/2006
	 	4/10/2007
	 	USA





 


S-76









 





	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	Application	 	Patent	 	Type	 	Filing	 	Date	 	 
	Title	 	Number	 	Number	 	(U/D)	 	Date	 	Issued	 	Country
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Mailbox stand

	 	 	09/181,237	 	 	 	5,971,267	 	 	U
	 	10/28/1998
	 	10/26/1999
	 	USA
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Nestable mailbox and method

	 	 	08/917,645	 	 	 	5,988,495	 	 	U
	 	8/22/1997
	 	11/23/1999
	 	USA
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Mailbox having stackable component parts

	 	 	10/165,552	 	 	 	6,729,535	 	 	U
	 	6/7/2002
	 	5/4/2004
	 	USA
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Two piece mailbox support

	 	 	11/052,648	 	 	 	7,510,162	 	 	U
	 	2/7/2005
	 	3/31/2009
	 	USA
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Mailbox with signal

	 	 	11/047,977	 	 	 	7,055,736	 	 	U
	 	2/1/2005
	 	6/6/2006
	 	USA





 


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	 	 	Application	 	Patent	 	Type	 	Filing	 	Date	 	 
	Title	 	Number	 	Number	 	(U/D)	 	Date	 	Issued	 	Country
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Mailbox support apparatus

	 	 	07/477,246	 	 	 	5,022,618	 	 	U
	 	2/8/1990
	 	6/11/1991
	 	USA
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Nestable mailbox

	 	 	29/100,321	 	 	 	D438,363	 	 	D
	 	2/9/1999
	 	2/27/2001
	 	USA
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Nestable mailbox

	 	 	29/125,082	 	 	 	D452,358	 	 	D
	 	6/16/2000
	 	12/18/2001
	 	USA
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Mailbox

	 	 	29/218,178	 	 	 	D514,270	 	 	D
	 	11/29/2004
	 	1/31/2006
	 	USA
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Mailbox

	 	 	29/219,122	 	 	 	D517,270	 	 	D
	 	12/13/2004
	 	3/14/2006
	 	USA







 


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SCHEDULE 6.18




INSURANCE




	 	 	 	 	 	 	 	 	 	 	 
	Line of Coverage	 	Carrier	 	Policy Period	 	Limit
	 
	General Liability
	 	Liberty Mutual	 	4/01/11 — 4/01/12	 	$	2,000,000	 	 	General Aggregate
	 
	 	 	 	 	 	$	2,000,000	 	 	Products/Comp. Ops.
	 
	 	 	 	 	 	$	1,000,000	 	 	P&A Injury
	 
	 	 	 	 	 	$	1,000,000	 	 	Each Occurrence
	 
	 	 	 	 	 	NONE	 	 	Damage to Premises Rented to You
	 
	 	 	 	 	 	NONE	 	 	Medical Expenses
	CN General Liability
	 	Liberty Mutual	 	4/01/11 — 4/01/12	 	See Above	 	 	 
	Workers’ Compensation
	 	Liberty Mutual	 	4/01/11 — 4/01/12	 	WC	 	 	Statutory
	(Most States)
	 	 	 	 	 	EL	 	 	Each Accident
	 
	 	 	 	 	 	$	1,000,000	 	 	 
	 
	 	 	 	 	 	$	1,000,000	 	 	Policy Limit
	 
	 	 	 	 	 	$	1,000,000	 	 	Each Employee
	Workers’ Compensation
	 	Liberty Insurance	 	4/01/11 — 4/01/12	 	WC	 	 	Statutory
	(OR, WI)
	 	 	 	 	 	EL	 	 	 
	 
	 	 	 	 	 	$	1,000,000	 	 	Each Accident
	 
	 	 	 	 	 	$	1,000,000	 	 	Policy Limit
	 
	 	 	 	 	 	$	1,000,000	 	 	Each Employee
	Automobile Liability
	 	Liberty Mutual	 	4/01/11 — 4/01/12	 	$	1,000,000	 	 	CSL
	CN Automobile Liability (Ontario; Quebec)
	 	Liberty Mutual	 	4/01/11 — 4/01/12	 	$	1,000,000	 	 	CSL
	Umbrella Liability
	 	Liberty Mutual Fire Ins. Co.	 	4/01/11 — 4/01/12	 	$	25,000,000	 	 	Each Occurrence
	 
	 	 	 	 	 	$	25,000,000	 	 	Aggregate






 


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	Line of Coverage	 	Carrier	 	Policy Period	 	Limit
	 
	1st Excess Liability
	 	Liberty Insurance Underwriters Inc.	 	4/01/11 — 4/01/12	 	$	25,000,000
 excess	 	 	Each Occurrence
	 
	 	 	 	 	 	$	25,000,000	 	 	Aggregate
	2nd Excess Liability
	 	National Surety Corporation	 	4/01/11 — 4/01/12	 	$	50,000,000
 excess	 	 	Each Occurrence
	 
	 	 	 	 	 	$	50,000,000	 	 	Aggregate
	Property
	 	Allianz Global Risks US Ins. Co.	 	4/01/11 — 4/01/12	 	 	150,000,000	 	 	Per “Occurrence”
	 
	 	 	 	 	 	 	100,000,000	 	 	Earth Movement
	 
	 	 	 	 	 	 	100,000,000	 	 	Flood
	 
	 	 	 	 	 	 	100,000,000	 	 	Boiler & Machinery
	Property Canada
	 	 	 	4/01/11 — 4/01/12	 	 	 	 	 	 
	Property Germany
	 	 	 	4/01/11 — 4/01/12	 	 	 	 	 	 
	Property Poland
	 	 	 	4/01/11 — 4/01/12	 	 	 	 	 	 
	Property UK
	 	 	 	4/01/11 — 4/01/12	 	 	 	 	 	 
	California Earthquake
	 	Empire Indemnity Insurance Company	 	4/01/11 — 4/01/12	 	$	15,000,000
 part of	 	 	 
	 
	 	 	 	 	 	$	20,000,000
excess	 	 	 
	 
	 	 	 	 	 	$	5,000,000	 	 	 
	California Earthquake
	 	The Princeton Excess and Surplus Lines	 	4/01/11 — 4/01/12	 	$	5,000,000
part of	 	 	 
	 
	 	Insurance Company	 	 	 	$	20,000,000
  excess	 	 	 
	 
	 	 	 	 	 	$	5,000,000	 	 	 
	Crime
	 	Federal Insurance Company	 	4/01/11 — 4/01/12	 	$	5,000,000	 	 	Limit
	Primary Directors & Officers Liability
	 	Federal Insurance Company	 	4/01/11 — 4/01/12	 	$	10,000,000	 	 	Limit
	First Excess Directors & Officers Liability
	 	St. Paul Mercury Insurance	 	4/01/11 — 4/01/12	 	$	10,000,000
excess of	 	 	Limit
	 
	 	 	 	 	 	$	10,000,000	 	 	 
	Second Excess Directors & Officers Liability
	 	AXIS  Insurance Company	 	4/01/11 — 4/01/12	 	$	10,000,000
 excess of	 	 	Limit
	 
	 	 	 	 	 	$	20,000,000	 	 	 






 


S-80









 





	 	 	 	 	 	 	 	 	 	 	 
	Line of Coverage	 	Carrier	 	Policy Period	 	Limit
	 
	Third Excess Directors & Officers Liability
	 	XL Specialty Insurance Company	 	4/01/11 — 4/01/12	 	$	10,000,000
 excess of	 	 	Limit
	 
	 	 	 	 	 	$	30,000,000	 	 	 
	Fiduciary Liability
	 	St. Paul Mercury Insurance Company	 	4/01/11 — 4/01/12	 	$	5,000,000	 	 	Limit
	Employment Practices Liability
	 	St. Paul Mercury Insurance Company	 	4/01/11 — 4/01/12	 	$	10,000,000	 	 	Limit
	Professional Indemnity (E&O)
	 	Lloyd’s of London	 	4/01/11 — 4/01/12	 	$	1,000,000	 	 	Limit
	Non-Owned Aircraft Liability
	 	Starr Aviation	 	4/01/11 — 4/01/12	 	$	25,000,000	 	 	CSL
	 
	 	 	 	 	 	$	10,000	 	 	Medical Payments
	 
	 	 	 	 	 	$	5,000	 	 	Baggage Liability
	 
	 	 	 	 	 	$	25,000,000	 	 	Personal Injury Aggregate
	 
	 	 	 	 	 	$	25,000,000	 	 	Aviation Premises Liability each occurrence
	Aircraft Products Liability
	 	National Union Fire Insurance Co.	 	4/01/11 — 4/01/12	 	$	50,000,000	 	 	CSL Per occurrence and in the aggregate (including 100%
	 
	 	 	 	 	 	 	 	 	 	grounding liability)
	International DIC
	 	Ace USA	 	4/01/11 — 4/01/12	 	$	1,000,000	 	 	General Liability
	 
	 	 	 	 	 	$	2,000,000	 	 	Each Occurrence
	 
	 	 	 	 	 	$	1,000,000	 	 	Prod./Comp. Ops. Aggregate
	 
	 	 	 	 	 	$	1,000,000	 	 	Premises Damage
	 
	 	 	 	 	 	$	10,000	 	 	Aggregate Limit PI & AI
	 
	 	 	 	 	 	$	1,000,000	 	 	Medical Payments
	 
	 	 	 	 	 	$	1,000,000	 	 	Employee Benefits Ea. Claim
	 
	 	 	 	 	 	$	1,000,000	 	 	Employee Benefits Agg.
	 
	 	 	 	 	 	$	25,000	 	 	Contingent Auto Liability
	 
	 	 	 	 	 	$	10,000	 	 	CSL BI/PD any one accident
	 
	 	 	 	 	 	State of Hire	 	 	Hired Auto Phy. Dam.
	 
	 	 	 	 	 	Cty of origin	 	 	Medical Payments Ea. Person
	 
	 	 	 	 	 	Cty of origin	 	 	Employers Responsibility
	 
	 	 	 	 	 	 	1,000,000/	 	 	North Americans
	 
	 	 	 	 	 	 	 1,000,000/	 	 	Third Country Nationals
	 
	 	 	 	 	 	 	1,000,000	 	 	Local Nationals
	 
	 	 	 	 	 	 	 	 	 	Contingent EL






 


S-81









 





	 	 	 	 	 	 	 	 	 	 	 
	Line of Coverage	 	Carrier	 	Policy Period	 	Limit
	 
	Local Admitted-Germany
	 	ACE European Group, 	 	4/01/11 — 4/01/12	 	$	1,000,000	 	 	General Liability
	 
	 	Ltd. (Germany)	 	 	 	€	500,000	 	 	Extended Products Liability
	 
	 	 	 	 	 	£	2,500,000	 	 	Auto BI Per Person
	 
	 	 	 	 	 	£	7,500,000	 	 	Auto Aggregate
	 
	 	 	 	 	 	£	500,000	 	 	Auto Property Damage
	Local Admitted General Liability — UK
	 	ACE European Group, Ltd. (UK)	 	4/01/11 — 4/01/12	 	$	1,000,000	 	 	General Liability
	Local Admitted
	 	Zurich	 	4/01/10 — 4/01/11	 	£	10,000,000	 	 	 
	Employers Liab.) — UK
	 	 	 	 	 	 	 	 	 	 
	Local Admitted General Liability — Poland
	 	ACE European Group, Ltd. (UK)	 	4/01/11 — 4/01/12	 	$	1,000,000	 	 	General Liability
	Flood
	 	American Bankers	 	1/4/10 — 1/4/11	 	 	 	 	 	 
	10900 NW 97th Street 

Miami, FL 33178
	 	 	 	 	 	 	 	 	 	 
	Flood
	 	American Bankers	 	3/10/11 — 3/10/12	 	$	500,000	 	 	Building
	220 Dixon Road 
Jackson, MS 39209
	 	 	 	 	 	 	 	 	 	 
	Flood
	 	American Bankers	 	3/18/11 — 3/18/12	 	 	 	 	 	 
	22153 W. Valley Hwy. 

Kent, WA 98032
	 	 	 	 	 	 	 	 	 	 
	Flood
	 	American Bankers	 	4/28/11 — 4/28/12	 	$	500,000	 	 	Building
	HC S/S Hwy #28
	 	 	 	 	 	$	500,000	 	 	Contents
	Taylorsville, MS 39166
	 	 	 	 	 	 	 	 	 	 
	Flood
	 	Travelers	 	5/19/11 — 5/19/12	 	$	500,000	 	 	Building
	30048 Aldine Bender
	 	 	 	 	 	$	500,000	 	 	Contents
	Harris, TX 77032
	 	 	 	 	 	 	 	 	 	 
	Ocean Marine Cargo
	 	ACGS Marine Ins. Co.	 	4/1/11 — 4/1/12	 	 	.0460	%	 	Marine Rate
	 
	 	 	 	 	 	 	.0115	%	 	War, Strikes, Riots Rate
	 
	 	 	 	 	 	 	.0019	%	 	Inland Rate
	Travel Accident
	 	 	 	 	 	 	 	 	 	 
	General Liability 
(DS Brown)
	 	Maxum	 	10/31/10 — 10/31/11	 	$	1m/$2m	 	 	 
	Umbrella 
(DS Brown)
	 	Torus	 	10/31/10 — 10/31/11	 	$	10,000,000	 	 	 






 


S-82









 





SCHEDULE 6.23




CREDIT FACILITIES UNDER THE SUBORDINATED INDENTURE




Fourth Amended and Restated Credit Agreement among Gibraltar Industries, Inc., Gibraltar Steel
Corporation of New York, KeyBank National Association, as Lender, Lead Arranger, Sole Book Runner
and Administrative Agent, JPMorgan Chase Bank, N.A. and Bank of America, N.A as Lenders and
Co-Syndications Agents, M&T Bank, RBS Citizens, National Association and HSBC Bank USA, National
Association as Lenders and Co-Documentation Agents and the other Lenders (as defined therein).


 


S-83









 





SCHEDULE 7.3




PLEDGED NOTES




	 	 	 	 	 	 	 	 	 	 
	Grantor	 	Amount	 	Type of Account	 	Date of Instrument	 	Date of Maturity
	 
	Gibraltar Steel Corporation of New York
	 	$	8,500,000	 	Subordinated Promissory Note	 	October 3, 2008	 	March 31, 2012





 


S-84









 





SCHEDULE 7.4




COMMERCIAL TORT CLAIMS




Air Vent, Inc. filed the following claims, which are all related claims of infringement of certain
Air Vent, Inc. patents. In connection with this claims, Air Vent, Inc. claimed damages relating to
patent infringement.



Air Vent, Inc. v Vent Right Corporation, Civil Action No. 09-CV-2360, Western District of
Pennsylvania filed January 31, 2008.



Air Vent, Inc. v. Mario Kaseda, Solution Supply Co., Inc., and Structure Roofing Co., Inc., Civil
Action No. 09-CV-2360, Northern District of Ohio filed on October 31, 2009.



Air Vent, Inc. vs. Owens Corning Corporation 2:10-cv-01699, Western District of Pennsylvania filed
December 17, 2010.


 


S-85