EXECUTION COPY
GUARANTEE
GUARANTEE, dated as of January 3, 2000, made by Keystone, Inc., a
Texas close corporation (the "Guarantor"), 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. Terms defined or referenced in the Credit Agreement
and not otherwise defined or referenced herein are used herein as therein
defined or referenced.
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
(the "Third 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; and
WHEREAS, the Lenders have provided the Consent which requires that
each Over Advance be guaranteed by the Guarantor, which holds an indirect
interest in the Borrower.
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
expressly acknowledged, the Guarantor hereby agrees with the Administrative
Agent, for the ratable benefit of the Lenders, as follows:
. Guarantee. () The Guarantor hereby unconditionally and
irrevocably guarantees to the Administrative Agent, for the ratable benefit of
the Lenders and their respective successors, indorsees, transferees and assigns,
the prompt and complete payment and performance by the Borrower when due
(whether at the stated maturity, by acceleration or otherwise) of all amounts
(the "Guaranteed Amounts") owing from time to time under the Credit Agreement
and the Notes solely in respect of any and all Over Advances (including
principal thereof and interest thereon, including interest accruing after the
maturity of the Over Advances and after the filing of any petition in
bankruptcy, or the commencement of any insolvency, reorganization or like
proceeding, relating to the Borrower, whether or not a claim for post-filing or
post-petition interest is allowed therein), provided that in no event shall the
Guaranteed Amounts exceed the value of the collateral on deposit in the Cash
Collateral Account maintained under the Cash Collateral Agreement dated as of
the date hereof (as amended, supplemented or otherwise modified from time to
time, the "Cash Collateral Agreement") by the Guarantor in favor of the
Administrative Agent. At the option of the Administrative Agent, the Guaranteed
Amounts may be declared due for all purposes hereof at any time upon the
occurrence and during the continuance of an Event of Default.
() The Guarantor further agrees to pay any and all expenses
(including, without limitation, all reasonable fees and disbursements of
counsel) which may be paid or incurred by the Administrative Agent or the
Lenders in enforcing, or obtaining advice of counsel in respect of, any rights
with respect to, or collecting against, the Guarantor under this Guarantee.
Except as otherwise provided in Section 1(d), this Guarantee shall remain in
full force and effect until all Obligations are paid in full, notwithstanding
that from time to time prior thereto the Borrower may be free from any
Obligations.
(c) The Guarantor agrees that whenever, at any time, or from time
to time, it shall make any payment to the Administrative Agent, for the benefit
of the Lenders, on account of its liability hereunder, it will notify the
Administrative Agent in writing that such payment is made under this Guarantee
for such purpose.
(d) Anything herein to the contrary notwithstanding, this
Guarantee shall be released automatically in its entirety, without any further
action, and the Guarantor shall have no further obligation hereunder upon the
successful completion of the Restructuring, as determined by the Administrative
Agent, provided that the Total Revolving Extensions of Credit are then equal to
or less than the Borrowing Base, and provided further that there is no Default
or Event of Default in existence at such time.
(e) Any determination made by the Administrative Agent as to the
Guaranteed Amounts shall, if made in good faith, be conclusive for all purposes
hereof, absent manifest error. Once made, the Over Advances shall be deemed to
remain outstanding to the extent that this Guarantee has not been satisfied or
released as provided in Section 1(c) or 1(d) and the Total Revolving Extensions
of Credit equal or exceed the Over Advances.
. No Subrogation. Notwithstanding any payment or payments made by
the Guarantor hereunder, or any set-off or application of funds of the Guarantor
by the Administrative Agent or any Lender, the Guarantor shall not be entitled
to be subrogated to any of the rights of the Administrative Agent or any Lender
against the Borrower or against any collateral security or guarantee or right of
offset held by the Administrative Agent or any Lender for the payment of the
Obligations, nor shall the Guarantor seek or be entitled to seek any
contribution or reimbursement from the Borrower in respect of payments made by
the Guarantor hereunder, until all amounts owing to the Administrative Agent and
each Lender by the Borrower on account of the Obligations are paid in full. If
any amount shall be paid to the Guarantor on account of such subrogation rights
at any time when all of the Obligations shall not have been paid in full, such
amount shall be held by the Guarantor in trust for the Administrative Agent and
the Lenders, segregated from other funds of the Guarantor, and shall, forthwith
upon receipt by the Guarantor, be turned over to the Administrative Agent in the
exact form received by the Guarantor (duly indorsed by the Guarantor to the
Administrative Agent, if required), to be applied against the Obligations,
whether matured or unmatured, in such order as the Administrative Agent may
determine.
. Amendments, etc. with respect to the Obligations; Waiver of
Rights. The Guarantor shall remain obligated hereunder notwithstanding that,
without any reservation of rights against the Guarantor, and without notice to
or further assent by the Guarantor, any demand for payment of any of the
Guaranteed Amounts made by the Administrative Agent or any Lender may be
rescinded, and any of the Guaranteed Amounts continued, and the Guaranteed
Amounts, or the liability of any other party upon or for any part thereof, or
any collateral security or guarantee therefor or right of offset with respect
thereto, may, from time to time, in whole or in part, be renewed, extended,
amended, modified, accelerated, compromised, waived, surrendered or released by
the Lenders, and any collateral security, guarantee or right of offset at any
time held by the Lenders for the payment of the Guaranteed Amounts may be sold,
exchanged, waived, surrendered or released. The Lenders and the Administrative
Agent shall not have any obligation to protect, secure, perfect or insure any
lien at any time held by it as security for the Obligations or for this
Guarantee or any property subject thereto or to liquidate the collateral in any
manner, commencing on any date or over any period other than as required by
applicable law. When making any demand hereunder against the Guarantor, the
Administrative Agent or each Lender may, but shall be under no obligation to,
make a similar demand on the Borrower or any other guarantor, and any failure to
make any such demand or to collect any payments from the Borrower or any such
other guarantor or any release of the Borrower or such other guarantor shall not
relieve the Guarantor of its obligations or liabilities hereunder, and shall not
impair or affect the rights and remedies, express or implied, or as a matter of
law, of any Lender against the Guarantor. For the purposes hereof "demand"
shall include the commencement and continuance of any legal proceedings.
. Guarantee Absolute and Unconditional. The Guarantor waives any
and all notice of the creation, renewal, extension or accrual of any Guaranteed
Amounts and notice of or proof of reliance by the Administrative Agent and the
Lenders upon this Guarantee or acceptance of this Guarantee; the Guaranteed
Amounts, and any of them, shall conclusively be deemed to have been created,
contracted or incurred, or renewed, extended, amended or waived, in reliance
upon this Guarantee; and all dealings relating to any Guaranteed Amounts between
the Borrower or the Guarantor, on the one hand, and the Lenders and the
Administrative Agent, on the other, shall likewise be conclusively presumed to
have been had or consummated in reliance upon this Guarantee. The Guarantor
waives diligence, presentment, protest, demand for payment and notice of default
or nonpayment to or upon the Borrower or the Guarantor with respect to the
Guaranteed Amounts. Except as otherwise provided in Section 1(d), this
Guarantee shall be construed as a continuing, absolute and unconditional
guarantee of payment to the extent provided herein without regard to any
circumstance whatsoever (with or without notice to or knowledge of the Borrower
or the Guarantor) which constitutes, or might be construed to constitute, an
equitable or legal discharge of the Borrower for the Guaranteed Amounts, or of
the Guarantor under this Guarantee, in bankruptcy or in any other instance.
Except as otherwise provided in Section 1(d), this Guarantee shall remain in
full force and effect and be binding in accordance with and to the extent of its
terms upon the Guarantor and its successors and assigns thereof, and shall inure
to the benefit of the Administrative Agent and the Lenders and respective
successors, indorsees, transferees and assigns, until all Obligations shall have
been satisfied by payment in full.
. Reinstatement. This Guarantee shall continue to be effective,
or be reinstated, as the case may be, if at any time payment, or any part
thereof, of any Guaranteed Amounts is rescinded or must otherwise be restored or
returned by the Administrative Agent and the Lenders upon the bankruptcy,
insolvency, liquidation or reorganization of the Borrower or upon or as a result
of the appointment of a receiver, intervenor or conservator of, or trustee or
similar officer for, the Borrower or any substantial part of its property, or
otherwise, all as though such payments had not been made.
. Payments. The Guarantor hereby agrees that any Guaranteed
Amounts will be paid to the Administrative Agent and the Lenders without set-off
or counterclaim.
. Representations and Warranties. The Guarantor represents and
warrants to the Administrative Agent and the Lenders that:
() the Guarantor is a corporation duly organized, validly existing
and in good standing under the laws of the jurisdiction of its incorporation;
() the Guarantor has the corporate power and authority and the
legal right to execute and deliver, and to perform its obligations under, this
Guarantee and the Cash Collateral Agreement, and has taken all necessary
corporate action to authorize its execution, delivery and performance of this
Guarantee and the Cash Collateral Agreement and the grant of the security
interest contemplated by the Cash Collateral Agreement;
() each of this Guarantee and the Cash Collateral Agreement
constitutes a legal, valid and binding obligation of the Guarantor enforceable
in accordance with its terms, except as affected by bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and other similar laws
relating to or affecting the enforcement of creditors' rights generally, general
equitable principles and an implied covenant of good faith and fair dealing;
() the execution, delivery and performance of this Guarantee and
the Cash Collateral Agreement will not violate any provision of any applicable
law or contractual obligation of the Guarantor; and
() no consent or authorization of, filing with, or other act by or
in respect of, any arbitrator or governmental authority and no consent of any
other person (including, without limitation, any stockholder or creditor of the
Guarantor) is required in connection with the execution, delivery, performance,
validity or enforceability of this Guarantee or the Cash Collateral Agreement.
. Notices. All notices, requests and demands to or upon the
Administrative Agent and the Lenders, or the Guarantor 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 (1) when delivered by hand or
(2) if given by mail, when deposited in the mails by certified mail, return
receipt requested, or (3) if by fax or similar electronic transfer, when sent
and receipt has been confirmed, addressed to the address or transmission number
set forth under the signature of the parts to whom notice is being given.
() if to the Guarantor, at its address or transmission number for
notices set forth with its signature hereto;
() if to the Administrative Agent or the Lenders, as provided in
the Credit Agreement.
Either the Administrative Agent, the Lenders or the Guarantor may change its
address and transmission numbers for notices by notice in the manner provided in
this Section.
. Severability. Any provision of this Guarantee 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.
. Integration. This Guarantee represents the agreement of the
Guarantor with respect to the subject matter hereof and there are no promises or
representations by the Administrative Agent and the Lenders relative to the
subject matter hereof not reflected herein.
. Amendments in Writing; No Waiver; Cumulative Remedies. ()
None of the terms or provisions of this Guarantee may be waived, amended,
supplemented or otherwise modified except by a written instrument executed by
the Guarantor and the Administrative Agent, provided that any provision of this
Guarantee may be waived by the Lenders in a letter or agreement executed by the
Administrative Agent or by facsimile transmission from the Administrative Agent.
() The Lenders shall not by any act (except by a written
instrument pursuant to paragraph 11(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 Lenders, 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
Lenders of any right or remedy hereunder on any one occasion shall not be
construed as a bar to any right or remedy which the Lenders would otherwise have
on any future occasion.
() 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.
. Section Headings. The section headings used in this Guarantee
are for convenience of reference only and are not to affect the construction
hereof or be taken into consideration in the interpretation hereof.
. Successors and Assigns. This Guarantee shall be binding upon
the successors and assigns of the Guarantor and shall inure to the benefit of
the Administrative Agent and the Lenders and their successors and assigns.
. Governing Law; Jurisdiction; Consent to Service of Process. ()
This Guarantee 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.
() The Guarantor hereby irrevocably and unconditionally submits,
for itself and its property, to the nonexclusive jurisdiction of the Supreme
Court of the State of New York sitting in New York County and of the United
States District Court of the Southern District of New York, and any appellate
court from any thereof, in any action or proceeding arising out of or relating
to this Guarantee or the Cash Collateral Agreement, or for recognition or
enforcement of any judgment, and the Guarantor hereby irrevocably and
unconditionally agrees that all claims in respect of any such action or
proceeding may be heard and determined in such New York State or, to the extent
permitted by law, in such Federal court. The Guarantor agrees that a final
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. Nothing in this Guarantee or the Cash Collateral Agreement
shall affect any right that the Administrative Agent or any Lender may otherwise
have to bring any action or proceeding relating to this Guarantee or the Cash
Collateral Agreement against the Guarantor or its properties in the courts of
any jurisdiction.
() The Guarantor hereby irrevocably and unconditionally waives, to
the fullest extent it may legally and effectively do so, any objection which it
may now or hereafter have to the laying of venue of any suit, action or
proceeding arising out of or relating to this Guarantee or the Cash Collateral
Agreement in any court referred to in paragraph (b) of this Section and hereby
irrevocably waives, to the fullest extent permitted by law, the defense of an
inconvenient forum to the maintenance of such action or proceeding in any such
court.
() The Guarantor irrevocably consents to service of process in the
manner provided for notices to the Guarantor above. Nothing in this Guarantee
or the Cash Collateral Agreement will affect the right of any party to this
Guarantee or the Cash Collateral Agreement to serve process in any other manner
permitted by law.
. WAIVER OF JURY TRIAL. THE GUARANTOR HEREBY 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 GUARANTEE OR THE CASH COLLATERAL AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). THE
GUARANTOR (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY LENDER
HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH LENDER WOULD NOT, IN THE
EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES
THAT THE LENDERS HAVE BEEN INDUCED TO MAKE THE LOANS AND OTHER EXTENSIONS OF
CREDIT CONTEMPLATED BY THIS GUARANTEE AND THE CASH COLLATERAL AGREEMENT BY,
AMONG OTHER THINGS, THE WAIVERS AND CERTIFICATIONS IN THIS SECTION.
IN WITNESS WHEREOF, the undersigned has caused this Guarantee to be
duly executed and delivered by its duly authorized officer as of the day and
year first above written.
KEYSTONE, INC.
By /s/ David G. Brown
Title VP CFO
Address for Notices:
201 Main Street
Fort Worth, Texas 76102
Attention: Kevin G. Levy
Fax: 817-338-2067