Guarantee and Collateral Agreement (2018)Full Document 

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EXECUTION VERSION

ABL GUARANTEE AND COLLATERAL AGREEMENT

made by

NCI GROUP, INC.,

ROBERTSON-CECO II CORPORATION,

NCI BUILDING SYSTEMS, INC.,

and certain other Domestic Subsidiaries of the Parent,

in favor of

WELLS FARGO BANK, NATIONAL ASSOCIATION,

as Collateral Agent and Administrative Agent

dated as of February 8, 2018

Section 1 Defined Terms 2
1.1 Definitions 2
1.2 Other Definitional Provisions 13
Section 2 Guarantee 13
2.1 Guarantee 13
2.2 Right of Contribution 15
2.3 No Subrogation 15
2.4 Amendments, etc. with Respect to the Obligations 16
2.5 Guarantee Absolute and Unconditional 17
2.6 Reinstatement 18
2.7 Payments 18
Section 3 Grant of Security Interest 18
3.1 Grant 18
3.2 Pledged Collateral 19
3.3 Certain Limited Exceptions 19
3.4 Intercreditor Relations 23
Section 4 Representations and Warranties 23
4.1 Representations and Warranties of Each Guarantor 23
4.2 Representations and Warranties of Each Grantor 24
4.3 Representations and Warranties of Each Pledgor 27
Section 5 Covenants 29
5.1 Covenants of Each Guarantor 29
5.2 Covenants of Each Grantor 29
5.3 Covenants of Each Pledgor 34
Section 6 Remedial Provisions 38
6.1 Certain Matters Relating to Accounts 38
6.2 Communications with Obligors; Grantors Remain Liable 39
6.3 Pledged Stock 40
6.4 Proceeds to Be Turned Over to the Collateral Agent 41
6.5 Application of Proceeds 41
6.6 Code and Other Remedies 42
6.7 Registration Rights 43
6.8 Waiver; Deficiency 43

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Section 7 The Collateral Agent 44
7.1 Collateral Agent’s Appointment as Attorney-in-Fact, etc. 44
7.2 Duty of Collateral Agent 46
7.3 Financing Statements 46
7.4 Authority of Collateral Agent 46
7.5 Right of Inspection 47
Section 8 Non-Lender Secured Parties 47
8.1 Rights to Collateral 47
8.2 Appointment of Agent 48
8.3 Waiver of Claims 49
8.4 Designation of Non-Lender Secured Parties 49
Section 9 Miscellaneous 49
9.1 Amendments in Writing 49
9.2 Notices 50
9.3 No Waiver by Course of Conduct; Cumulative Remedies 50
9.4 Enforcement Expenses; Indemnification 50
9.5 Successors and Assigns 51
9.6 Set-Off 51
9.7 Counterparts 51
9.8 Severability 51
9.9 Section Headings 52
9.10 Integration 52
9.11 GOVERNING LAW 52
9.12 Submission to Jurisdiction; Waivers 52
9.13 Acknowledgments 53
9.14 WAIVER OF JURY TRIAL 53
9.15 Additional Granting Parties 53
9.16 Releases 54
9.17 Judgment 55
9.18 Transfer Tax Acknowledgment 56

SCHEDULES
Schedule 1 Notice Addresses of Granting Parties
Schedule 2 Pledged Securities
Schedule 3 Perfection Matters
Schedule 4A Financing Statements
Schedule 4B Jurisdiction of Organization
Schedule 5 Intellectual Property
Schedule 6 Commercial Tort Claims
Schedule 7 Letter-of-Credit Rights
ANNEXES
Annex 1 Acknowledgement and Consent of Issuers who are not Granting Parties
Annex 2 Assumption Agreement
Annex 3 Supplemental Agreement
Annex 4 Non-Lender Acknowledgement

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ABL GUARANTEE AND COLLATERAL AGREEMENT

ABL GUARANTEE AND COLLATERAL AGREEMENT, dated as of February 8, 2018, made by NCI GROUP, Inc., a Nevada corporation (as further defined in the Credit Agreement, “NCI Group”), ROBERTSON-CECO II Corporation, a Delaware corporation (as further defined in the Credit Agreement, “Robertson”), NCI BUILDING SYSTEMS, INC., a Delaware corporation (as further defined in the Credit Agreement, the “Parent”), and certain other Domestic Subsidiaries of the Parent from time to time party hereto, in favor of WELLS FARGO BANK, NATIONAL ASSOCIATION, as collateral agent (in such capacity, and together with its successors and assigns in such capacity, the “Collateral Agent”) for the Secured Parties (as defined below) and administrative agent (in such capacity, and together with its successors and assigns in such capacity, the “Administrative Agent”) for the banks and other financial institutions (collectively, the “Lenders”; individually, a “Lender”) from time to time parties to the Credit Agreement described below.

WITNESSETH:

WHEREAS, pursuant to that certain ABL Credit Agreement, dated as of the date hereof (as amended, waived, supplemented or otherwise modified from time to time, together with any agreement extending the maturity of, or restructuring, refunding, refinancing or increasing the Indebtedness under such agreement or successor agreements, the “Credit Agreement”), among the Parent, NCI Group, Robertson, the Subsidiary Borrowers from time to time party thereto, the Collateral Agent, the Administrative Agent, and the other parties from time to time party thereto, the Lenders have severally agreed to make extensions of credit to the Borrowers upon the terms and subject to the conditions set forth therein;

WHEREAS, the Parent is a member of an affiliated group of companies that includes the other Granting Parties (as defined below);

WHEREAS, the proceeds of the extensions of credit under the Credit Agreement will be used in part to enable the Borrowers to make valuable transfers to one or more of the Granting Parties in connection with the operation of their respective businesses;

WHEREAS, the Borrowers and the other Granting Parties are engaged in related businesses, and each such Granting Party will derive substantial direct and indirect benefit from the making of the extensions of credit under the Credit Agreement;

WHEREAS, it is a condition to the obligation of the Lenders to make their respective extensions of credit under the Credit Agreement that the Granting Parties shall execute and deliver this Agreement to the Collateral Agent and Administrative Agent for the benefit of the Secured Parties;

WHEREAS, pursuant to the Term Loan Credit Agreement, the lenders party thereto have severally agreed to make extensions of credit to the Parent upon the terms and subject to the conditions set forth therein;

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WHEREAS, pursuant to that certain Term Loan Guarantee and Collateral Agreement, dated as of the date hereof (as amended, waived, supplemented or otherwise modified from time to time, the “Term Loan Collateral Agreement”), among the Parent, certain Domestic Subsidiaries (as defined in the Term Loan Credit Agreement) of the Parent from time to time party thereto (collectively, the “Term Loan Granting Parties”) and the Term Loan Agent, the Term Loan Granting Parties have granted a first priority (as defined in the Term Loan Credit Agreement) Lien to the Term Loan Agent for the benefit of the Term Loan Secured Parties (as defined herein) on the Term Loan Priority Collateral (as defined herein) and a second priority Lien for the benefit of the Term Loan Secured Parties on the ABL Priority Collateral (as defined herein) (subject in each case to Permitted Liens);

WHEREAS, the Collateral Agent and the Term Loan Agent have entered into the ABL/Term Loan Intercreditor Agreement, acknowledged by the Parent, NCI Group, Robertson and the other Granting Parties; and

WHEREAS, the Collateral Agent and/or one or more Additional Agents may in the future enter into a Junior Lien Intercreditor Agreement, acknowledged by the Borrowers and the other Granting Parties, and one or more Other Intercreditor Agreements or Intercreditor Agreement Supplements.

NOW, THEREFORE, in consideration of the premises and to induce the Administrative Agent and the Lenders to enter into the Credit Agreement and to induce the Lenders to make their respective extensions of credit to the Borrowers thereunder, each Granting Party hereby agrees with the Administrative Agent and the Collateral Agent, for the benefit of the Secured Parties, as follows:

Section 1

Defined Terms

1.1 Definitions. (a) Unless otherwise defined herein, terms defined in the Credit Agreement and used herein shall have the meanings given to them in the Credit Agreement, and the following terms that are defined in the Code (as defined below and in effect on the date hereof) are used herein as so defined: Cash Proceeds, Chattel Paper, Commercial Tort Claims, Documents, Electronic Chattel Paper, Equipment, Farm Products, Fixtures, General Intangibles, Goods, Letter-of-Credit Rights, Money, Promissory Notes, Records, Securities, Securities Accounts and Supporting Obligations.

(b) The following terms shall have the following meanings:

ABL Priority Collateral”: as defined in the ABL/Term Loan Intercreditor Agreement.

Accounts”: all accounts (as defined in the Code) of each Grantor, including, without limitation, all Accounts (as defined in the Credit Agreement) and Accounts Receivable of such Grantor.

Accounts Receivable”: any right to payment, whether or not earned by performance, for goods sold, leased, licensed, assigned or otherwise disposed, or for services rendered or to be rendered, which is not evidenced by an instrument (as defined in the Code) or Chattel Paper.

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Additional ABL Agent”: as defined in the ABL/Term Loan Intercreditor Agreement.

Additional ABL Collateral Documents”: as defined in the ABL/Term Loan Intercreditor Agreement.

Additional ABL Credit Facility”: as defined in the ABL/Term Loan Intercreditor Agreement.

Additional ABL Obligations”: as defined in the ABL/Term Loan Intercreditor Agreement.

Additional ABL Secured Parties”: as defined in the ABL/Term Loan Intercreditor Agreement.

Additional Agent”: as defined in the ABL/Term Loan Intercreditor Agreement

Additional Credit Facility”: as defined in the ABL/Term Loan Intercreditor Agreement.

Additional Secured Parties”: as defined in the ABL/Term Loan Intercreditor Agreement.

Additional Term Agent”: as defined in the ABL/Term Loan Intercreditor Agreement.

Additional Term Collateral Documents”: as defined in the ABL/Term Loan Intercreditor Agreement.

Additional Term Obligations”: as defined in the ABL/Term Loan Intercreditor Agreement.

Adjusted Net Worth”: of any Guarantor at any time, the greater of (x) $0 and (y) the amount by which the fair saleable value of such Guarantor’s assets on the date of the respective payment hereunder exceeds its debts and other liabilities (including contingent liabilities, but without giving effect to any of its obligations under this Agreement or any other Loan Document, or pursuant to its guarantee with respect to any Indebtedness then outstanding under the Term Loan Credit Agreement, any Additional Credit Facility or any Assumed Indebtedness) on such date.

Administrative Agent”: as defined in the preamble hereto.

Agreement”: this ABL Guarantee and Collateral Agreement, as the same may be amended, supplemented, waived or otherwise modified from time to time.

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Applicable Law”: as defined in Subsection 9.8.

Bank Products Provider”: any Person that has entered into a Bank Products Agreement with a Grantor with the obligations of such Grantor thereunder being secured by one or more Loan Documents, as designated by the Parent in accordance with Subsection 8.4 hereof (provided that (i) no Person shall, with respect to any Bank Products Agreement, be at any time a Bank Products Provider with respect to more than one Credit Facility and (ii) if such Person is not an Agent, a Lender or an Affiliate thereof, such Person shall have executed and delivered to the Administrative Agent a Non-Lender Acknowledgement).

Bankruptcy Case”: (i) the Parent, any Borrower or any other Subsidiary of the Parent commencing any case, proceeding or other action (A) under any existing or future law of any jurisdiction, domestic or foreign, relating to bankruptcy, insolvency, reorganization, conservatorship or relief of debtors, seeking to have an order for relief entered with respect to it, or seeking to adjudicate it bankrupt or insolvent, or seeking reorganization, arrangement, adjustment, winding-up, liquidation, dissolution, composition or other relief with respect to it or its debts, or (B) seeking appointment of a receiver, trustee, custodian, conservator or other similar official for it or for all or any substantial part of its assets, or the Parent, any Borrower or any other Subsidiary of the Parent making a general assignment for the benefit of its creditors; or (ii) there being commenced against the Parent, any Borrower or any other Subsidiary of the Parent any case, proceeding or other action of a nature referred to in clause (i) above which (A) results in the entry of an order for relief or any such adjudication or appointment or (B) remains undismissed, undischarged or unbonded for a period of 60 days.

Borrower Obligations”: with respect to any Borrower, the collective reference to all obligations and liabilities of such Borrower in respect of the unpaid principal of and interest on (including, without limitation, interest and fees accruing after the maturity of the Loans and Reimbursement Obligations and interest and fees accruing after (or that would accrue but for) the filing of any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, relating to such Borrower, whether or not a claim for post-filing or post-petition interest or fees is allowed in such proceeding) the Loans, the Reimbursement Obligations and all other obligations and liabilities of such Borrower, to the Secured Parties, whether direct or indirect, absolute or contingent, due or to become due, or now existing or hereafter incurred, which may arise under, out of, or in connection with, the Credit Agreement, the Loans, the Letters of Credit, this Agreement, the other Loan Documents, any Hedging Agreement or Permitted Hedging Arrangement entered into with any Hedging Provider, any Bank Products Agreement entered into with any Bank Products Provider, any Guarantee Obligation of the Parent, any Borrower or any other Subsidiary of the Parent as to which any Secured Party is a beneficiary (including any Management Guarantee entered into with any Management Credit Provider) or any other document made, delivered or given in connection therewith, in each case whether on account of principal, interest, reimbursement obligations, amounts payable in connection with any such Bank Products Agreement or a termination of any transaction entered into pursuant to any such Hedging Agreement or Permitted Hedging Arrangement, fees, indemnities, costs, expenses or otherwise (including, without limitation, all reasonable fees, expenses and disbursements of counsel to the Administrative Agent or any other Secured Party that are required to be paid by such Borrower, pursuant to the terms of the Credit Agreement or any other Loan Document). With respect to any Guarantor, if and to the extent, under the Commodity Exchange Act or any rule, regulation or order of the CFTC (or the application or official interpretation of any thereof), all or a portion of the guarantee of such Guarantor of, or the grant by such Guarantor of a security interest for, the obligation (the “Excluded Borrower Obligation”) to pay or perform under any agreement, contract or transaction that constitutes a “swap” within the meaning of Section 1a(47) of the Commodity Exchange Act (or the analogous term or section in any amended or successor statute) is or becomes illegal, the Borrower Obligations guaranteed by such Guarantor shall not include any such Excluded Borrower Obligation.

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Borrowers”: as defined in the preamble hereto.

CFTC”: the Commodity Futures Trading Commission or any successor to the Commodity Futures Trading Commission.

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

Collateral”: as defined in Section 3; provided that, for purposes of Section 8, “Collateral” shall have the meaning assigned to such term in the Credit Agreement.

Collateral Account Bank”: a bank which at all times is the Collateral Agent or a Lender or an affiliate thereof as selected by the relevant Grantor and consented to in writing by the Collateral Agent (such consent not to be unreasonably withheld or delayed).

Collateral Agent”: as defined in the preamble hereto.

Collateral Proceeds Account”: a non-interest bearing cash collateral account established and maintained by the relevant Grantor at an office of the Collateral Account Bank in the name, and in the sole dominion and control of, the Collateral Agent for the benefit of the Secured Parties.

Collateral Representative”: (i) if the ABL/Term Loan Intercreditor Agreement is then in effect, the ABL Collateral Representative (as defined therein) and the Term Loan Collateral Representative (as defined therein), (ii) if any Junior Lien Intercreditor Agreement is then in effect, the Senior Priority Representative (as defined therein) and (iii) if any Other Intercreditor Agreement is then in effect, the Person acting as representative for the Collateral Agent and the Secured Parties thereunder for the applicable purpose contemplated by this Agreement and the Credit Agreement.

Commercial Tort Action”: any action, other than an action primarily seeking declaratory or injunctive relief with respect to claims asserted or expected to be asserted by Persons other than the Grantors, that is commenced by a Grantor in the courts of the United States of America, any state or territory thereof or any political subdivision of any such state or territory, in which any Grantor seeks damages arising out of torts committed against it that would reasonably be expected to result in a damage award to it exceeding $10,000,000.

Commodity Exchange Act”: the Commodity Exchange Act, as in effect from time to time, or any successor statute.

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Contracts”: with respect to any Grantor, all contracts, agreements, instruments and indentures in any form and portions thereof, to which such Grantor is a party or under which such Grantor or any property of such Grantor is subject, as the same may from time to time be amended, supplemented, waived or otherwise modified, and all rights of such Grantor thereunder, including, without limitation, (i) all rights of such Grantor to receive moneys due and to become due to it thereunder or in connection therewith, (ii) all rights of such Grantor to damages arising thereunder and (iii) all rights of such Grantor to perform and to exercise all remedies thereunder.

Copyright Licenses”: with respect to any Grantor, all United States written license agreements of such Grantor providing for the grant by or to such Grantor of any right under any United States copyright of such Grantor, other than agreements with any Person who is an Affiliate or a Subsidiary of the Parent or such Grantor, including, without limitation, any such license agreements that are material to the business of the Parent and its Restricted Subsidiaries, taken as a whole, and are listed on Schedule 5, subject, in each case, to the terms of such license agreements, and the right to prepare for sale, sell and advertise for sale, all Inventory now or hereafter covered by such licenses.

Copyrights”: with respect to any Grantor, all of such Grantor’s right, title and interest in and to all United States copyrights, whether or not the underlying works of authorship have been published or registered, all United States copyright registrations and copyright applications, including, without limitation, any copyright registrations and copyright applications listed on Schedule 5, and (i) all renewals thereof, (ii) all income, royalties, damages and payments now and hereafter due and/or payable with respect thereto, including, without limitation, payments under all licenses entered into in connection therewith, and damages and payments for past or future infringements thereof and (iii) the right to sue or otherwise recover for past, present and future infringements and misappropriations thereof.

Credit Agreement”: as defined in the recitals hereto (and as further defined in the Credit Agreement).

Credit Facility”: as defined in the ABL/Term Loan Intercreditor Agreement.

Deposit Account”: any “deposit account” as such term is defined in the Code (as in effect on the date hereof), now or hereafter maintained by any Grantor, and, in any event, shall include, but shall not be limited to, all Blocked Accounts, DDAs and Concentration Accounts.

Discharge of Additional Term Obligations”: as defined in the ABL/Term Loan Intercreditor Agreement.

Discharge of Term Loan Obligations”: as defined in the ABL/Term Loan Intercreditor Agreement.

Excluded Assets”: as defined in Subsection 3.3.

Excluded Borrower Obligation”: as defined in the definition of “Borrower Obligations”.

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Excluded Parent Obligation”: as defined in the definition of “Parent Obligations”.

Foreign Intellectual Property”: any right, title or interest in or to any copyrights, copyright licenses, patents, patent applications, patent licenses, trade secrets, trade secret licenses, trademarks, service marks, trademark and service mark applications, trade names, trade dress, trademark licenses, technology, know-how and processes or any other intellectual property governed by or arising or existing under, pursuant to or by virtue of the laws of any jurisdiction other than the United States of America or any state thereof.

Granting Parties”: (x) the Parent, (y) the Borrowers and (z) the Subsidiary Guarantors.

Grantor”: (x) the Parent, (y) the Borrowers and (z) the Subsidiary Guarantors.

Guarantor Obligations”: with respect to any Guarantor, the collective reference to (i) the Borrower Obligations guaranteed by such Guarantor pursuant to Section 2, (ii) the Parent Obligations guaranteed by such Guarantor pursuant to Section 2 and (iii) all obligations and liabilities of such Guarantor that may arise under or in connection with this Agreement or any other Loan Document to which such Guarantor is a party, any Hedging Agreement or Permitted Hedging Arrangement with any Hedging Provider, any Bank Products Agreement with any Bank Products Provider, any Guarantee Obligation of the Parent, any Borrower or any other Subsidiary of the Parent as to which any Secured Party is a beneficiary (including any Management Guarantee entered into with any Management Credit Provider), or any other document made, delivered or given in connection therewith, in each case whether on account of guarantee obligations, reimbursement obligations, fees, indemnities, costs, expenses or otherwise (including, without limitation, all reasonable fees and disbursements of counsel to the Administrative Agent or to any other Secured Party that are required to be paid by such Guarantor pursuant to the terms of this Agreement or any other Loan Document and interest and fees accruing after (or that would accrue but for) the filing of any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, relating to such Guarantor, whether or not a claim for post-filing or post-petition interest or fees is allowed in such proceeding); provided, that, when referring to the Guarantor Obligations of any Borrower, such reference shall be a reference solely to a guaranty of the Obligations of the Parent. With respect to any Guarantor, if and to the extent, under the Commodity Exchange Act or any rule, regulation or order of the CFTC (or the application or official interpretation of any thereof), all or a portion of the guarantee of such Guarantor of, or the grant by such Guarantor of a security interest for, the obligation (together with the Excluded Borrower Obligation and the Excluded Parent Obligation, the “Excluded Obligation”) to pay or perform under any agreement, contract or transaction that constitutes a “swap” within the meaning of Section 1a(47) of the Commodity Exchange Act (or the analogous term or section in any amended or successor statute) is or becomes illegal, the Guarantor Obligations of such Guarantor shall not include any such Excluded Obligation.

Guarantors”: the collective reference to each Granting Party.

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Hedging Agreement”: any Interest Rate Agreement, Commodities Agreement, Currency Agreement (each as defined in the ABL/Term Loan Intercreditor Agreement) or any other credit or equity swap, collar, cap, floor or forward rate agreement, or other agreement or arrangement designed to protect against fluctuations in interest rates or currency, commodity, credit or equity values or creditworthiness (including, without limitation, any option with respect to any of the foregoing and any combination of the foregoing agreements or arrangements), and any confirmation executed in connection with any such agreement or arrangement.

Hedging Provider”: any Person that has entered into a Hedging Agreement with a Grantor with the obligations of such Grantor thereunder being secured by one or more Loan Documents, as designated by the Parent in accordance with Subsection 8.4 (provided that (i) no Person shall, with respect to any Hedging Agreement, be at any time a Hedging Provider with respect to more than one Credit Facility and (ii) if such Person is not an Agent, a Lender or an Affiliate thereof, such Person shall have executed and delivered to the Administrative Agent a Non-Lender Acknowledgement).

Instruments”: as defined in Article 9 of the Code but excluding Pledged Securities.

Intellectual Property”: with respect to any Grantor, the collective reference to such Grantor’s Copyrights, Copyright Licenses, Patents, Patent Licenses, Trade Secrets, Trade Secret Licenses, Trademarks and Trademark Licenses.

Intercompany Note”: with respect to any Grantor, any promissory note in a principal amount in excess of $10,000,000 evidencing loans made by such Grantor to the Parent or any of its Restricted Subsidiaries.

Intercreditor Agreements”: (a) the ABL/Term Loan Intercreditor Agreement, (b) the Junior Lien Intercreditor Agreement and (c) any Other Intercreditor Agreement that may be entered into in the future by the Collateral Agent and one or more Additional Agents and acknowledged by the Borrowers and the other Granting Parties (each such Intercreditor Agreement as amended, amended and restated, waived, supplemented or otherwise modified from time to time (subject to Subsection 9.1)) (in each case, upon and during the effectiveness thereof).

Inventory”: with respect to any Grantor, all inventory (as defined in the Code) of such Grantor, including, without limitation, all Inventory (as defined in the Credit Agreement) of such Grantor.

Investment Property”: the collective reference to (i) all “investment property” as such term is defined in Section 9-102(a)(49) of the Code as in effect on the date hereof (other than (a) Capital Stock (including for these purposes any investment deemed to be Capital Stock for United States tax purposes) of any Foreign Subsidiary in excess of 65% of any series of such Capital Stock and (b) any Capital Stock excluded from the definition of “Pledged Stock”) and (ii) whether or not constituting “investment property” as so defined, all Pledged Securities.

Issuers”: the collective reference to issuers of Pledged Stock, including (as of the Closing Date) the Persons identified on Schedule 2 as the issuers of Pledged Stock.

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Junior Lien Intercreditor Agreement”: as defined in the recitals hereto.

Lender”: as defined in the preamble hereto.

Management Credit Provider”: any Person that is a beneficiary of a Management Guarantee, with the obligations of the applicable Grantor thereunder being secured by one or more Loan Documents, as designated by the Parent in accordance with Subsection 8.4 (provided that (i) no Person shall, with respect to any Management Guarantee, be at any time a Management Credit Provider with respect to more than one Credit Facility and (ii) if such Person is not an Agent, a Lender or an Affiliate thereof, such Person shall have executed and delivered to the Administrative Agent a Non-Lender Acknowledgement).

Non-Lender Acknowledgment”: shall mean an acknowledgment substantially in the form of Annex 5 hereto (or such other form as reasonably acceptable to the Administrative Agent and the Borrower Representative), which may be included as part of any written notice delivered by the Borrower Representative pursuant to Subsection 11.22(a) of the Credit Agreement, pursuant to which a Person that is not an Agent, a Lender or an Affiliate thereof (a) appoints the Administrative Agent as its agent under the Loan Documents and (b) agrees to be bound by the provisions of Subsection 9.2, Section 10, and Subsections 11.1, 11.12, 11.13, 11.15 and 11.22 of the Credit Agreement as if it were a Lender.

Non-Lender Secured Parties”: the collective reference to all Bank Products Providers, Hedging Providers, Management Credit Providers and their respective successors, assigns and transferees.

Obligations”: (i) in the case of each Borrower, its Borrower Obligations and its Guarantor Obligations, (ii) in the case of the Parent, the Parent Obligations and its Guarantor Obligations and (iii) in the case of each other Guarantor, its Guarantor Obligations.

Parent”: as defined in the preamble hereto.

Parent Obligations”: with respect to the Parent, the collective reference to all obligations and liabilities of the Parent that may arise under or in connection with this Agreement or any other Loan Document to which the Parent is a party, any Hedging Agreement or Permitted Hedging Arrangement entered into with any Hedging Provider, any Bank Products Agreement entered into with any Bank Products Provider, any Guarantee Obligation of the Parent, any Borrower or any other Subsidiary of the Parent as to which any Secured Party is a beneficiary (including any Management Guarantee entered into with any Management Credit Provider), or any other document made, delivered or given in connection therewith, in each case whether on account of guarantee obligations, reimbursement obligations, fees, indemnities, costs, expenses or otherwise (including, without limitation, all reasonable fees and disbursements of counsel to the Administrative Agent or to any other Secured Party that are required to be paid by the Parent pursuant to the terms of this Agreement or any other Loan Document and interest and fees accruing after (or that would accrue but for) the filing of any petition in bankruptcy, or

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