EXECUTION COPY
CASH COLLATERAL AGREEMENT
CASH COLLATERAL AGREEMENT dated as of January 3, 2000, made by
Keystone, Inc., a Texas close corporation (the "Pledgor") in favor of Chase Bank
of Texas, National Association, as administrative agent (in such capacity, the
"Administrative Agent") for the banks and financial institutions or entities
(the "Lenders") parties to the Credit Agreement, dated as of January 28, 1998,
as amended, supplemented or otherwise modified from time to time ( the "Credit
Agreement"), among Reliant Building Products, Inc., a Delaware corporation (the
"Borrower"), the Lenders, Chase Securities, Inc., as advisor and arranger,
Canadian Imperial Bank of Commerce, New York Agency, as documentation agent, and
the Administrative Agent.
W I T N E S S E T H:
WHEREAS, the Borrower and the Lenders are parties to the Credit
Agreement;
WHEREAS, the Borrower intends to complete a restructuring of its
capital structure (the "Restructuring") to be implemented through certain
amendments to the Credit Agreement, an exchange offer and consent solicitation
for its outstanding Senior Subordinated Notes, and an equity investment by
certain entities;
WHEREAS, in order to effect the Restructuring, the Borrower requested
that the Lenders execute and deliver a consent (the "Consent") to an amendment
of the Credit Agreement and related documentation permitting the Borrower to
borrow from time to time during the period from the date hereof to March 31,
2000 up to $2,000,000 in the aggregate or such larger amount as may be
acceptable to the Administrative Agent (any such borrowing, an "Over Advance")
in excess of the Total Revolving Extensions of Credit outstanding as of the date
hereof;
WHEREAS, the Lenders have provided the Consent which requires that
each Over Advance be guaranteed by the Pledgor, an affiliate of the Borrower;
WHEREAS, in satisfaction of such requirement, the Pledgor has entered
into a Guarantee of even date herewith (as amended, supplemented or otherwise
modified from time to time, the "Guarantee") for the benefit of the
Administrative Agent and the Lenders; and
WHEREAS, it is a further requirement under the Consent that the
Pledgor shall have executed and delivered this Cash Collateral Agreement to
secure payment and performance of the Pledgor's obligations under the Guarantee.
NOW, THEREFORE, in consideration of the premises, the Pledgor hereby
agrees with the Administrative Agent, for the ratable benefit of the Lenders, as
follows:
. Defined Terms. () Unless otherwise defined herein, terms
defined in the Credit Agreement and used herein shall have the meanings given to
them in the Credit Agreement.
() The following terms shall have the following meanings:
"Agreement" shall mean this Cash Collateral Agreement, as the same may
be amended, modified or otherwise supplemented from time to time.
"Cash Collateral" shall mean
(1) all cash, instruments, securities and funds deposited from
time to time in the Cash Collateral Account, including, without limitation, all
cash or other money proceeds of any collateral subject to a security interest
for the benefit of the Administrative Agent under any Security Document;
(2) all investments of funds in the Cash Collateral Account and
all instruments and securities evidencing such investments; and
(3) all interest, dividends, cash, instruments, securities and
other property received in respect of, or as proceeds of, or in substitution or
exchange for, any of the foregoing.
"Cash Collateral Account" shall mean account no. 46108118465
established at the office of Chase Bank of Texas, National Association at 201
Main Street, Fort Worth, Texas 76102, designated "Reliant/Keystone Cash
Collateral Account."
"Code" shall mean the Uniform Commercial Code from time to time in
effect in the State of New York.
"Collateral"" shall mean the Cash Collateral and the Cash Collateral
Account, collectively.
"Permitted Investments" shall mean Cash Equivalents (as defined in the
Credit Agreement) and any other short-term high-quality obligations reasonably
satisfactory to the Administrative Agent, in each case denominated in U.S.
Dollars.
"Secured Obligations" shall mean the Guaranteed Amounts and all
obligations and liabilities of the Pledgor which may arise under or in
connection with the Guarantee or this Agreement or any related document to which
the Pledgor is a party.
() The words "hereof," "herein" and "hereunder" and words of
similar import when used in this Agreement shall refer to this Agreement as a
whole and not to any particular provision of this Agreement, and section and
paragraph references are to this Agreement unless otherwise specified.
() The meanings given to terms defined herein shall be equally
applicable to both the singular and plural forms of such terms.
. Grant of Security Interest. As collateral security for the
prompt and complete payment and performance when due (whether at the stated
maturity, by acceleration or otherwise) of the Secured Obligations, the Pledgor
hereby grants to the Administrative Agent, for the ratable benefit of the
Lenders, a security interest in the Collateral.
. Maintenance of Cash Collateral Account. () The Cash Collateral
Account shall be maintained until the Secured Obligations have been paid and
performed in full or the Guarantee has been released in accordance with its
terms.
() The Collateral shall be subject to the exclusive dominion and
control of the Administrative Agent, which shall hold the Cash Collateral and
administer the Cash Collateral Account subject to the terms and conditions of
this Agreement. The Pledgor shall have no right of withdrawal from the Cash
Collateral Account nor any other right or power with respect to the Collateral,
except as expressly provided herein.
. Deposit of Funds. The Pledgor may from time to time deposit in
the Cash Collateral Account cash in the form of U.S. Dollars in immediately
available funds.
. Covenants. The Pledgor covenants and agrees with the
Administrative Agent that:
() The Pledgor will not () sell, assign, transfer, exchange, or
otherwise dispose of, or grant any option with respect to, the Collateral, or ()
create, incur or permit to exist any Lien or option in favor of, or any claim of
any Person with respect to, any of the Collateral, or any interest therein,
except for the security interest created by this Agreement.
() The Pledgor will maintain the security interest created by this
Agreement as a first, perfected security interest and defend the right, title
and interest of the Administrative Agent and the Lenders in and to the
Collateral against the claims and demands of all Persons whomsoever. At any
time and from time to time, upon the written request of the Administrative
Agent, and at the sole expense of the Pledgor, the Pledgor will promptly and
duly execute and deliver such further instruments and documents and take such
further actions as the Administrative Agent reasonably may request for the
purposes of obtaining or preserving the full benefits of this Agreement and of
the rights and powers herein granted, including, without limitation, of
financing statements under the Uniform Commercial Code.
. Investment of Cash Collateral. () Subject to the provisions of
paragraph 7(b), collected funds on deposit in the Cash Collateral Account shall
be invested by the Administrative Agent from time to time in Permitted
Investments. All investments shall be made in the name of the Administrative
Agent or a nominee of the Administrative Agent and in a manner, determined by
the Administrative Agent in its sole discretion, that preserves the
Administrative Agent's perfected, first priority security interest in such
investments.
() The Administrative Agent shall have no obligation to invest
collected funds during the first night after their collection.
() The Administrative Agent shall have no responsibility to the
Pledgor for any loss or liability arising in respect of such investments of the
Cash Collateral (including, without limitation, as a result of the liquidation
of any thereof before maturity), except to the extent that such loss or
liability arises from the Administrative Agent's gross negligence or willful
misconduct.
() The Pledgor will pay or reimburse the Administrative Agent for
any and all costs, expenses and liabilities of the Administrative Agent incurred
in connection with this Agreement, the maintenance and operation of the Cash
Collateral Account and the investment of the Cash Collateral, including, without
limitation, any investment, brokerage or placement commissions and fees incurred
by the Administrative Agent in connection with the investment or reinvestment of
Cash Collateral.
. Release of Cash Collateral. The Administrative Agent shall have
no obligation to release Cash Collateral (other than to enable the Pledgor to
make payments under the Guarantee pursuant to Section 1(c) of the Guarantee)
unless each of the following conditions is satisfied at the time of such
release:
(a) The Secured Obligations shall have been paid and performed in
full or the Guarantee shall have been released in accordance with its terms; and
(b) Such release shall not require termination of any investment
prior to its maturity.
. Remedies. () Whenever any Guaranteed Amounts are due, the
Administrative Agent may, without notice of any kind, except for notices
required by law which may not be waived, apply the Collateral, after deducting
all reasonable costs and expenses of every kind incurred in respect thereof or
incidental to the care or safekeeping of any of the Collateral or in any way
relating to the Collateral or the rights of the Administrative Agent and the
Lenders hereunder, including, without limitation, reasonable attorneys' fees and
disbursements of counsel to the Administrative Agent, to the payment in whole or
in part of the Secured Obligations, in such order as the Administrative Agent in
its sole discretion may elect, and only after such application and after the
payment by the Administrative Agent of any other amount required by any
provision of law, including, without limitation, Section 9-504(1)(c) of the
Code, need the Administrative Agent account for the surplus, if any, to the
Pledgor. To the extent permitted by law, the Pledgor waives presentment,
demand, protest and all notices of any kind and all claims, damages and demands
it may acquire against the Administrative Agent or any Lender arising out of the
exercise by them of any rights hereunder.
() The Pledgor waives and agrees not to assert any rights or
privileges which it may acquire under Section 9-112 of the Code. The Pledgor
shall not be liable for any deficiency if the proceeds of any sale or other
disposition of the Collateral are insufficient to pay the Secured Obligations
and the fees and disbursements of any attorneys employed by the Administrative
Agent or any Lender to collect such deficiency.
. Administrative Agent's Appointment as Attorney-in-Fact. () The
Pledgor hereby irrevocably constitutes and appoints the Administrative Agent and
any officer or agent of the Administrative Agent, with full power of
substitution, as its true and lawful attorney-in-fact with full irrevocable
power and authority in the place and stead of the Pledgor and in the name of the
Pledgor or in the Administrative Agent's own name, from time to time in the
Administrative Agent's discretion, for the purpose of carrying out the terms of
this Agreement, to take any and all appropriate action and to execute any and
all documents and instruments which may be necessary or desirable to accomplish
the purposes of this Agreement, including, without limitation, any financing
statements, endorsements, assignments or other instruments of transfer.
() The Pledgor hereby ratifies all that said attorneys shall
lawfully do or cause to be done pursuant to the power of attorney granted in
paragraph 10(a). All powers, authorizations and agencies contained in this
Agreement are coupled with an interest and are irrevocable until this Agreement
is terminated and the security interests created hereby are released.
. Duty of Administrative Agent. The Administrative Agent's sole
duty with respect to the custody, safekeeping and physical preservation of the
Collateral in its possession, under Section 9-207 of the Code or otherwise,
shall be to comply with the specific duties and responsibilities set forth
herein. The powers conferred on the Administrative Agent in this Agreement are
solely for the protection of the Administrative Agent's and the Lenders'
interests in the Collateral and shall not impose any duty upon the
Administrative Agent or any Lender to exercise any such powers. Neither the
Administrative Agent nor any Lender nor its or their directors, officers,
employees or agents shall be liable for any action lawfully taken or omitted to
be taken by any of them under or in connection with the Collateral or this
Agreement, except for its or their gross negligence or willful misconduct.
. Execution of Financing Statements. Pursuant to Section 9-402 of
the Code, the Pledgor authorizes the Administrative Agent to file financing
statements with respect to the Collateral without the signature of the Pledgor
in such form and in such filing offices as the Administrative Agent reasonably
determines appropriate to perfect the security interests of the Administrative
Agent under this Agreement. A carbon, photographic or other reproduction of
this Agreement shall be sufficient as a financing statement for filing in any
jurisdiction.
. Authority of Administrative Agent. The Pledgor acknowledges
that the rights and responsibilities of the Administrative Agent under this
Agreement with respect to any action taken by the Administrative Agent or the
exercise or non-exercise by the Administrative Agent of any option, right,
request, judgment or other right or remedy provided for herein or resulting or
arising out of this Agreement shall, as between the Administrative Agent and the
Lenders, be governed by the Credit Agreement and by such other agreements with
respect thereto as may exist from time to time among them, but, as between the
Administrative Agent and the Pledgor, the Administrative Agent shall be
conclusively presumed to be acting as Administrative Agent for the Lenders with
full and valid authority so to act or refrain from acting, and the Pledgor shall
not be under any obligation, or entitlement, to make any inquiry respecting such
authority.
. Notices. All notices, requests and demands to or upon the
Administrative Agent or the Pledgor to be effective shall be in writing (or by
fax or similar electronic transfer confirmed in writing) and shall be deemed to
have been duly given or made () when delivered by hand or () if given by mail,
when deposited in the mails by certified mail, return receipt requested, or ()
if by fax or similar electronic transfer, when sent and receipt has been
confirmed, addressed as follows:
() if to the Administrative Agent or the Lenders, as provided in
the Credit Agreement; and
() if to the Pledgor, at its address or transmission number for
notices set forth under its signature below.
The Administrative Agent and the Pledgor may change their addresses and
transmission numbers for notices by notice in the manner provided in this
Section.
14. Counterparts. This Agreement may be executed in several
counterparts, each of which shall be an original and all of which shall
constitute but one and the same instrument.
15. Severability. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
16. Amendments in Writing; No Waiver; Cumulative Remedies. (a)
None of the terms or provisions of this Agreement may be waived, amended,
supplemented or otherwise modified except by a written instrument executed by
the Pledgor and the Administrative Agent, provided that any provision of this
Agreement may be waived by the Administrative Agent and the Lenders in a letter
or agreement executed by the Administrative Agent or by facsimile transmission
from the Administrative Agent.
(b) Neither the Administrative Agent nor any Lender shall by any
act (except by a written instrument pursuant to paragraph 16(a) hereof), delay,
indulgence, omission or otherwise be deemed to have waived any right or remedy
hereunder or to have acquiesced in any Default or Event of Default or in any
breach of any of the terms and conditions hereof. No failure to exercise, nor
any delay in exercising, on the part of the Administrative Agent or any Lender,
any right, power or privilege hereunder shall operate as a waiver thereof. No
single or partial exercise of any right, power or privilege hereunder shall
preclude any other or further exercise thereof or the exercise of any other
right, power or privilege. A waiver by the Administrative Agent or any Lender
of any right or remedy hereunder on any one occasion shall not be construed as a
bar to any right or remedy which the Administrative Agent or such Lender would
otherwise have on any future occasion.
(c) The rights and remedies herein provided are cumulative, may be
exercised singly or concurrently and are not exclusive of any other rights or
remedies provided by law.
17. Section Headings. The section headings used in this Agreement
are for convenience of reference only and are not to affect the construction
hereof or be taken into consideration in the interpretation hereof.
18. Successors and Assigns. This Agreement shall be binding upon
the successors and assigns of the Pledgor and shall inure to the benefit of the
Administrative Agent and the Lenders and their successors and assigns.
19. Governing Law. This Agreement shall in all respects be
construed in accordance with and governed by the law of the State of New York
without giving effect to the conflicts of law principles thereof.
IN WITNESS WHEREOF, the Pledgor and the Administrative Agent have caused
this Cash Collateral Agreement to be duly executed and delivered as of the date
first above written.
KEYSTONE, INC.
By /s/ David G. Brown
Title
Address for Notices:
201 Main Street
Fort Worth, Texas 76102
Attention: Kevin G. Levy
Fax: 817-338-2067
IN WITNESS WHEREOF, the Pledgor and the Administrative Agent have caused
this Cash Collateral Agreement to be duly executed and delivered as of the date
first above written.
CHASE BANK OF TEXAS, NATIONAL
ASSOCIATION, As Administrative Agent
By /s/ B.B. Wuthrich
Title Vice President