MASTER ASSIGNMENT AND ACCEPTANCE
Reference is made to the Credit Agreement dated as of March 25, 1998 (as
amended by that CERTAIN First Amendment dated as of May 1, 1998 and by that
certain Second Amendment dated as of May 5, 1998 and as hereinafter amended
from time to time, the "CREDIT AGREEMENT") among NCI Building Systems, Inc.,
a Delaware corporation ("BORROWER"), the Lenders (as defined in the Credit
Agreement), the other parties to such Credit Agreement and NationsBank of
Texas, N.A., as Administrative Agent for the Lenders ("AGENT"). Terms defined
in the Credit Agreement are used herein with the same meaning.
THE "ASSIGNORS" and the "ASSIGNEES" referred to on SCHEDULE 1 agree as
follows:
1. The Assignors hereby sell and assign to the Assignees, without
recourse and without representation or warranty except as expressly set forth
herein, and the Assignees hereby purchase and assume from the Assignors,
interests in and to the Assignors' rights and obligations under the Loan
Documents as of the date hereof equal to the percentage interests specified
on SCHEDULE 1 of all outstanding rights and obligations under the Loan
Documents. After giving effect to such sales and assignments, the Commitments
of the Assignees and the remaining Commitments of the Assignors and the
amounts of the Loans owing to the Assignees and Assignors will be as set
forth on SCHEDULE 1.
2. Each Assignor (i) represents and warrants that it is the legal and
beneficial owner of the interests being assigned by it hereunder and that
such interests are free and clear of any adverse claim; (ii) makes no
representation or warranty and assumes no responsibility with respect to any
statements, warranties or representations made in or in connection with the
Loan Documents or the execution, legality, validity, enforceability,
genuineness, sufficiency or value of the Loan Documents; (iii) makes no
representation or warranty and assumes no responsibility with respect to the
financial condition of any Company or the performance or observance by any
Company of any of its obligations under the Loan Documents; and (iv) attaches
the Note held by the Assignor and requests that Agent exchange such Note for
new Notes payable to the order of each Assignee in an amount equal to the
Commitments assumed by such Assignee pursuant hereto and to such Assignor in
an amount equal to the Commitments retained by such Assignor as specified on
SCHEDULE 1.
3. Each Assignee (i) confirms that it has received a copy of the
Credit Agreement, together with copies of the financial statements referred
to in SECTION 8.1 thereof and such other documents and information as it has
deemed appropriate to make its own credit analysis and decision to enter into
this Assignment and Acceptance; (ii) agrees that it will, independently and
without reliance upon Agent, the Assignors 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; (iii) appoints and authorizes Agent to take such
action as agent on its behalf and to exercise such powers and discretion
under the Credit Agreement as are delegated to Agent by the terms thereof,
together with such powers and discretion as are reasonably incidental
thereto; (iv) agrees that it will perform in accordance with their terms all
of the obligations that by the terms of the Credit Agreement are required to
be performed by it as a Lender; and (v) attaches any U.S. Internal Revenue
Service or other forms required under SECTION 3.20(d) of the Credit Agreement.
4. Following the execution of this Assignment and Acceptance, it will
be delivered to Agent for acceptance and recording by Agent. The effective
date for this Assignment and Acceptance (the "EFFECTIVE DATE") shall be the
date specified on SCHEDULE 1.
5. Upon such acceptance and recording by Agent, as of the Effective
Date, (i) each Assignee shall be a parry to the Credit Agreement and, to the
extent provided in this Assignment and Acceptance, have the rights and
obligations of a Lender thereunder and (ii) each Assignor shall, to the
extent provided in this Assignment and Acceptance and in the Credit
Agreement, relinquish its rights and be released from its obligations under
the Credit Agreement.
6. Upon such acceptance and recording by Agent, from and after the
Effective Date, Agent shall make all payments under the Credit Agreement and
the Notes in respect of the interest assigned hereby (including, without
limitation, all payments of principal, interest and commitment fees with
respect thereto) to the Assignees. The Assignors and Assignees shall make
all appropriate adjustments in payments under the Credit Agreement and the
Notes for periods prior to the Effective Date directly between themselves.
7. This Assignment and Acceptance shall be governed by, and construed
in accordance with, the laws of the State of Texas.
8. This Assignment and Acceptance may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each
of which when so executed shall be deemed to be an original and all of which
taken together shall constitute one and the same agreement. Delivery of an
executed counterpart of SCHEDULE 1 to this Assignment and Acceptance by
telecopier shall be effective as delivery of a manually executed counterpart
of this Assignment and Acceptance.
IN WITNESS WHEREOF, the Assignors and the Assignees have caused SCHEDULE 1
to this Assignment and Acceptance to be executed by their officers
thereunto duly authorized as of the date specified thereon.
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SCHEDULE 1
to
ASSIGNMENT AND ACCEPTANCE
FACILITY A COMMITMENT FACILITY B COMMITMENT FACILITY C COMMITMENT TOTAL COMMITMENT
LENDER AND PERCENTAGE AND PERCENTAGE AND PERCENTAGE AND PERCENTAGE
- ------------------------------ --------------------- --------------------- --------------------- ----------------------
NationsBank of Texas, N.A. $ 15,250,000 7.625% $ 15,250,000 7.625% $140,000,000 70% $170,500,000 28.42%
Swiss Bank Corporation $ 13,000,000 6.50% $ 13,000,000 6.50% $ 60,000,000 30% $ 86,500,000 14.33%
First Union National Bank $ 13,000,000 6.50% $ 13,000,000 6.50% $ 0 0% $ 26,000,000 4.33%
The Bank of Nova Scotia $ 11,250,000 5.625% $ 11,250,000 5.625% $ 0 0% $ 22,500,000 3.75%
Compagnie Financiere de
CIC et de L'Union Europeenne $ 11,250,000 5.625% $ 11,250,000 5.625% $ 0 0% $ 22,500,000 3.75%
Comerica Bank $ 11,250,000 5.625% $ 11,250,000 5.625% $ 0 0% $ 22,500,000 3.75%
Credit Lyonnais New York Branch $ 11,250,000 5.625% $ 11,250,000 5.625% $ 0 0% $ 22,500,000 3.75%
Creditanstalt Corporate
Finance, Inc. $ 11,250,000 5.625% $ 11,250,000 5.625% $ 0 0% $ 22,500,000 3.75%
General Electric Capital
Corporation $ 11,250,000 5.625% $ 11,250,000 5.625% $ 0 0% $ 22,500,000 3.75%
Societe Generale $ 11,250,000 5.625% $ 11,250,000 5.625% $ 0 0% $ 22,500,000 3.75%
The Sumitomo Bank, Limited $ 11,250,000 5.625% $ 11,250,000 5.625% $ 0 0% $ 22,500,000 3.75%
Wachovia Bank, N.A. $ 11,250,000 5.625% $ 11,250,000 5.625% $ 0 0% $ 22,500,000 3.75%
CIBC, Inc. $ 7,500,000 3.75% $ 7,500,000 3.75% $ 0 0% $ 15,000,000 2.50%
Credit Agricole Indosuez $ 7,500,000 3.75% $ 7,500,000 3.75% $ 0 0% $ 15,000,000 2.50%
The Fuji Bank, Limited -
Houston Agency $ 7,500,000 3.75% $ 7,500,000 3.75% $ 0 0% $ 15,000,000 2.50%
Imperial Bank, a California
Banking Corp. $ 7,500,000 3.75% $ 7,500,000 3.75% $ 0 0% $ 15,000,000 2.50%
The Industrial Bank of Japan,
Limited $ 7,500,000 3.75% $ 7,500,000 3.75% $ 0 0% $ 15,000,000 2.50%
The Long-Term Credit Bank of
Japan, Limited $ 7,500,000 3.75% $ 7,500,000 3.75% $ 0 0% $ 15,000,000 2.50%
Union Bank of California, N.A. $ 7,500,000 3.75% $ 7,500,000 3.75% $ 0 0% $ 15,000,000 2.50%
Southwest Bank of Texas N.A. $ 5,000,000 2.50% $ 5,000,000 2.50% $ 0 0% $ 10,000,000 1.67%
------------ ----- ------------ ------ ------------ ---- ------------ ------
TOTAL $200,000,000 100% $200,000,000 100% $200,000,000 100% $600,000,000 100%
------------ ----- ------------ ------ ------------ ---- ------------ ------
------------ ----- ------------ ------ ------------ ---- ------------ ------
Effective Date: May 6, 1998
ASSIGNORS
NATIONSBANK OF TEXAS, N.A.
By: /s/ Richard L. Nichols, Jr.
------------------------------------
Richard L. Nichols, Jr.
Vice President
SWISS BANK CORPORATION,
STAMFORD BRANCH
Re: /s/ Dorothy McKinley
------------------------------------
Dorothy McKinley
Associate Director Loan Portfolio
Support, US
By: /s/ Denise M. Clerkin
------------------------------------
Denise M. Clerkin
Associate Director Loan Portfolio
Support, US
ASSIGNEES
FIRST UNION NATIONAL BANK
By: /s/ Braxton B. Comer
------------------------------------
Braxton B. Comer
Senior Vice President
THE BANK OF NOVA SCOTIA
By: /s/ F.C.H. Ashby
------------------------------------
F.C.H. Ashby
Senior Manager Loan Operations
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COMPAGNIE FINANCIERE DE CIC ET DE
L'UNION EUROPEENNE
By: /s/ Anthony Rock /s/ Brian O'Leary
---------------------------------------------
Anthony Rock Brian O'Leary
Vice Presidents
COMERICA BANK
By: /s/ Reginald M. Goldsmith, III
------------------------------------
Reginald M. Goldsmith, III
Vice President
CREDIT LYONNAIS NEW YORK BRANCH
By: /s/ Robert Ivosevich
------------------------------------
Robert Ivosevich
Senior Vice President
CREDITANSTALT CORPORATE FINANCE, INC.
By: /s/ Carl G. Drake
------------------------------------
Carl G. Drake
Vice President
By: /s/ Stephen W. Hipp
------------------------------------
Stephen W. Hipp
Associate
GENERAL ELECTRIC CAPITAL CORPORATION
By: /s/ Janet K. Williams
------------------------------------
Janet K. Williams
Duly Authorized Signatory
SOCIETE GENERALE
By: /s/ Thierry Namuroy
------------------------------------
Thierry Namuroy
Vice President
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THE SUMITOMO BANK, LIMITED
By: /s/ William R. McKown, III
------------------------------------
William R. McKown, III
Vice President and Manager
WACHOVIA BANK, N.A.
By: /s/ Paige D. Mesaros
------------------------------------
Paige D. Mesaros
Vice President
CIBC, INC.
By: /s/ Elizabeth Fischer
------------------------------------
Elizabeth Fischer
Executive Director
CIBC Oppenheimer Corp., AS AGENT
CREDIT AGRICOLE INDOSUEZ
By: /s/ David Bouhl
------------------------------------
David Bouhl, E.V.P.
Head of Corporate Banking - Chicago
By: /s/ W. Leroy Startz
------------------------------------
W. Leroy Startz
First Vice President
THE FUJIBANK, LIMITED - HOUSTON AGENCY
By: /s/ Philip C. Lauinger III
------------------------------------
Philip C. Lauinger III
Vice President and Manager
IMPERIAL BANK, A CALIFORNIA BANKING
CORPORATION
By: /s/ Ray Vadalma
------------------------------------
Ray Valdalma
Senior Vice President
THE INDUSTRIAL BANK OF JAPAN, LIMITED
By: /s/ Takuya Honjo
------------------------------------
Takuya Honjo
Senior Vice President
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THE LONG-TERM CREDIT BANK OF JAPAN,
LIMITED
By: /s/ Sadao Muraoka
------------------------------------
Sadao Muraoka
Head of Southwest Region
UNION BANK OF CALIFORNIA, N.A.
By: /s/ Albert W. Kelley
------------------------------------
Albert W. Kelley
Vice President
SOUTHWEST BANK OF TEXAS, N.A.
By: /s/ Gary Tolbert
------------------------------------
Gary Tolbert
Senior Vice President
ACCEPTED AND APPROVED AS OF MAY 6, 1998
NATIONSBANK OF TEXAS, N.A.,
AS ADMINISTRATIVE AGENT
By: /s/ Richard L. Nichols, Jr.
------------------------------------
Richard L. Nichols, Jr.
Vice President
APPROVED AS OF MAY 6, 1998
NCI BUILDING SYSTEMS, INC.
By: /s/ Robert J. Medlock
------------------------------------
Robert J. Medlock
Vice President and Chief Financial Officer
7