EXHIBIT 4.05
FORM OF
GUARANTEE
Each of Xxxx & Xxxxxx, Inc., Mansfield Plumbing Products, Inc.,
DeVilbiss Air Power Company, SWC Industries, Inc. and Ex-Cell Manufacturing
Company, Inc. (each, a "GUARANTOR") hereby, jointly and severally,
unconditionally guarantees to each Holder of a 9 1/2% Senior Subordinated
Note Due 2007 (a "NOTE") of Falcon Building Products, Inc., a Delaware
corporation (the "COMPANY") authenticated and delivered by the Trustee and to
the Trustee and its successors and assigns, irrespective of the validity and
enforceability of the Indenture, the Notes and the Obligations of the Company
hereunder and thereunder, that: (a) the principal of, premium, if any,
interest and Liquidated Damages, if any, on the Notes will be promptly paid
in full when due, subject to any applicable grace period, whether at
maturity, by acceleration, redemption or otherwise, and interest on the
overdue principal, premium, if any (to the extent permitted by law), interest
on any interest, if any, and Liquidated Damages, if any, on the Notes, and
all other payment Obligations of the Company to the Holders or the Trustee
hereunder or thereunder will be promptly paid in full and performed, all in
accordance with the terms hereof and thereof; and (b) in case of any
extension of time of payment or renewal of any Notes or any of such other
Obligations, the same will be promptly paid in full when due or performed in
accordance with the terms of the extension or renewal, subject to any
applicable grace period, whether at stated maturity, by acceleration,
redemption or otherwise. Failing payment when so due of any amount so
guaranteed or any performance so guaranteed for whatever reason the
Guarantors will be jointly and severally obligated to pay the same
immediately.
The obligations of each Guarantor to the Holders of Notes and to
the Trustee pursuant to this Subsidiary Guarantee and the Indenture are
expressly set forth in Article 11 of the Indenture and reference is hereby made
to such Indenture for the precise terms of this Subsidiary Guarantee. THE TERMS
OF ARTICLE 11 OF THE INDENTURE ARE INCORPORATED HEREIN BY REFERENCE. In the
case of any discrepancy between this writing and Article 11 of the Indenture,
Article 11 of the Indenture shall control.
This is a continuing Subsidiary Guarantee and shall remain in
full force and effect and shall be binding upon each Guarantor and its
successors and assigns until full, final and indefeasible payment of all of the
Company's obligations under the Notes and the Indenture (subject to Section
11.04 of the Indenture) and shall inure to the benefit of the successors and
assigns of the Trustee and the Holders of Notes and, in the event of any
transfer or assignment of rights by any Holder of Notes or the Trustee, the
rights and privileges herein conferred upon the party shall automatically extend
to and be vested in such transferee or assignee, all subject to the terms and
conditions hereof. This is a Subsidiary Guarantee of payment and not a
guarantee of collection.
For purposes hereof, each Guarantor's liability shall be limited
to the lesser of (i) the aggregate amount of the Obligations of the Company
under the Notes and the Indenture and (ii) the amount, if any, which would not
have (A) rendered such Guarantor "insolvent" (as such term is defined in the
United States Bankruptcy Code and in the Debtor and Creditor Law of the State of
New York) or (B) left such Guarantor with unreasonably small capital at the time
its Subsidiary Guarantee of the Notes was entered into; PROVIDED that it will be
a presumption in any lawsuit or other proceeding in which a Guarantor is a party
that the amount guaranteed pursuant to the Subsidiary Guarantee is the amount
set forth in clause (i) above unless any creditor, or
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representative of creditors of such Guarantor, or debtor in possession or
trustee in bankruptcy of the Guarantor, otherwise proves in such a lawsuit
that the aggregate liability of the Guarantor is the amount set forth in
clause (ii) above. The Indenture provides that, in making any determination
as to solvency or sufficiency of capital of a Guarantor in accordance with
the previous sentence, the right of such Guarantor to contribution from other
Guarantors, and any other rights such Guarantor may have, contractual or
otherwise, shall be taken into account.
This Subsidiary Guarantee shall not be valid or obligatory for
any purpose until the certificate of authentication on the Note upon which this
Guarantee is noted shall have been executed by the Trustee under the Indenture
by the manual signature of one of its authorized officers.
Capitalized terms used herein have the same meanings given in the
Indenture unless otherwise indicated.
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SIGNATURES
Dated as of XXXX & XXXXXX, INC.
By:
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Name:
Title:
Dated as of MANSFIELD PLUMBING PRODUCTS, INC.
By:
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Name:
Title:
Dated as of DEVILBISS AIR POWER COMPANY
By:
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Name:
Title:
Dated as of SWC INDUSTRIES, INC.
By:
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Name:
Title:
Dated as of EX-CELL MANUFACTURING COMPANY, INC.
By:
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Name:
Title:
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