Exhibit 10.20(m)
CONTINUING GUARANTY
TO: XXXXX FARGO BANK, NATIONAL ASSOCIATION for itself and as Agent
1. GUARANTY; DEFINITIONS. In consideration of any credit or other
financial accommodation heretofore, now or hereafter extended or made to XXXXXX
INTERNATIONAL, INC., a Delaware corporation ("Borrower"), by XXXXX FARGO BANK,
NATIONAL ASSOCIATION, for itself and as agent for one or more Lenders ("Bank"),
and for other valuable consideration, the undersigned ON-TIME STEEL MANAGEMENT,
INC., a Delaware corporation ("Guarantor"), jointly and severally
unconditionally guarantees and promises to pay to Bank, or order, on demand in
lawful money of the United States of America and in immediately available funds,
any and all Indebtedness of Borrower to Bank. The term "Indebtedness" is used
herein in its most comprehensive sense and includes any and all advances, debts,
obligations and liabilities of Borrower, heretofore, now or hereafter made,
incurred or created, whether voluntary or involuntary and however arising,
whether due or not due, absolute or contingent, liquidated or unliquidated,
determined or undetermined, and whether Borrower may be liable individually or
jointly with others, or whether recovery upon such Indebtedness may be or
hereafter becomes unenforceable. The term "Lenders" means those Lenders listed
from time to time in that Credit Agreement dated as of June 30, 1998 between
Xxxxxx Steel Company, a Delaware corporation as predecessor in interest to
Borrower and Bank as Administrative Agent for the Lenders and as Arranger,
Issuing Bank and Swing Line Lender.
2. MAXIMUM LIABILITY; SUCCESSIVE TRANSACTIONS; REVOCATION; OBLIGATION
UNDER OTHER GUARANTIES. The liability of Guarantor shall not exceed at any one
time the sum of FIFTEEN MILLION AND NO/100 DOLLARS ($15,000,000.00) for
principal, plus all interest thereon and costs and expenses pertaining to the
enforcement of this Guaranty and/or the collection of the Indebtedness of
Borrower to Bank. Notwithstanding the foregoing, Bank may permit the
Indebtedness of Borrower to exceed Guarantor's liability. This is a continuing
guaranty and all rights, powers and remedies hereunder shall apply to all past,
present and future Indebtedness of Borrower to Bank, including that arising
under successive transactions which shall either continue the Indebtedness,
increase or decrease it, or from time to time create new Indebtedness after all
or any prior Indebtedness has been satisfied, and notwithstanding the death,
incapacity, dissolution, liquidation or bankruptcy of Borrower or Guarantor or
any other event or proceeding affecting Borrower or Guarantor. This Guaranty
shall not apply to any new Indebtedness created after actual receipt by Bank of
written notice of its revocation as to such new Indebtedness; provided however,
that loans or advances made by Bank to Borrower after revocation under
commitments existing prior to receipt by Bank of such revocation, and
extensions, renewals or modifications, of any kind, of Indebtedness incurred by
Borrower or committed by Bank prior to receipt by Bank of such revocation, shall
not be considered new Indebtedness. Any such notice must be sent to Bank by
registered U.S. mail, postage prepaid, addressed to its office at 000 Xxxx
Xxxxxxxxxx, Xxxxxxx, Xxxxxxx 00000, Attention: Xxxx Xxxxx #S4101-251, or at such
other address as Bank shall from time to time designate. Any payment by
Guarantor shall not reduce Guarantor's maximum obligation hereunder unless
written notice to that effect is actually received by Bank at or prior to the
time of such payment. The obligations of Guarantor hereunder shall be in
addition to any obligations of Guarantor under any other guaranties of any
liabilities or obligations of Borrower or any other
person heretofore or hereafter given to Bank unless said other guaranties are
expressly modified or revoked in writing; and this Guaranty shall not, unless
expressly herein provided, affect or invalidate any such other guaranties.
3. OBLIGATIONS JOINT AND SEVERAL; SEPARATE ACTIONS; WAIVER OF STATUTE
OF LIMITATIONS; REINSTATEMENT OF LIABILITY. The obligations hereunder are joint
and several and independent of the obligations of Borrower, and a separate
action or actions may be brought and prosecuted against Guarantor whether action
is brought against Borrower or any other person, or whether Borrower or any
other person is joined in any such action or actions. Guarantor acknowledges
that this Guaranty is absolute and unconditional, there are no conditions
precedent to the effectiveness of this Guaranty, and this Guaranty is in full
force and effect and is binding on Guarantor as of the date written below,
regardless of whether Bank obtains collateral or any guaranties from others or
takes any other action contemplated by Guarantor. Guarantor waives the benefit
of any statute of limitations affecting Guarantor's liability hereunder or the
enforcement thereof, and Guarantor agrees that any payment of any Indebtedness
or other act which shall toll any statute of limitations applicable thereto
shall similarly operate to toll such statute of limitations applicable to
Guarantor's liability hereunder. The liability of Guarantor hereunder shall be
reinstated and revived and the rights of Bank shall continue if and to the
extent for any reason any amount at any time paid on account of any Indebtedness
guaranteed hereby is rescinded or must otherwise be restored by Bank, whether as
a result of any proceedings in bankruptcy or reorganization or otherwise, all as
though such amount had not been paid. The determination as to whether any amount
so paid must be rescinded or restored shall be made by Bank in its sole
discretion; provided however, that if Bank chooses to contest any such matter at
the request of Guarantor, Guarantor agrees to indemnify and hold Bank harmless
from and against all costs and expenses, including reasonable attorneys' fees,
expended or incurred by Bank in connection therewith, including without
limitation, in any litigation with respect thereto.
4. AUTHORIZATIONS TO BANK. Guarantor authorizes Bank either before or
after revocation hereof, without notice to or demand on Guarantor, and without
affecting Guarantor's liability hereunder, from time to time to: (a) alter,
compromise, renew, extend, accelerate or otherwise change the time for payment
of, or otherwise change the terms of the Indebtedness or any portion thereof,
including increase or decrease of the rate of interest thereon; (b) take and
hold security for the payment of this Guaranty or the Indebtedness or any
portion thereof, and exchange, enforce, waive, subordinate or release any such
security; (c) apply such security and direct the order or manner of sale
thereof, including without limitation, a non-judicial sale permitted by the
terms of the controlling security agreement or deed of trust, as Bank in its
discretion may determine; (d) release or substitute any one or more of the
endorsers or any other guarantors of the Indebtedness, or any portion thereof,
or any other party thereto; and (e) apply payments received by Bank from
Borrower to any Indebtedness of Borrower to Bank, in such order as Bank shall
determine in its sole discretion, whether or not such Indebtedness is covered by
this Guaranty, and Guarantor hereby waives any provision of law regarding
application of payments which specifies otherwise. Bank may without notice
assign this Guaranty in whole or in part. Upon Bank's request, Guarantor agrees
to provide to Bank copies of Guarantor's financial statements.
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5. REPRESENTATIONS AND WARRANTIES. Guarantor represents and warrants to
Bank that: (a) this Guaranty is executed at Borrower's request; (b) Guarantor
shall not, without Bank's prior written consent, sell, lease, assign, encumber,
hypothecate, transfer or otherwise dispose of all or a substantial or material
part of Guarantor's assets other than in the ordinary course of Guarantor's
business; (c) Bank has made no representation to Guarantor as to the
creditworthiness of Borrower; and (d) Guarantor has established adequate means
of obtaining from Borrower on a continuing basis financial and other information
pertaining to Borrower's financial condition. Guarantor agrees to keep
adequately informed from such means of any facts, events or circumstances which
might in any way affect Guarantor's risks hereunder, and Guarantor further
agrees that Bank shall have no obligation to disclose to Guarantor any
information or material about Borrower which is acquired by Bank in any manner.
6. GUARANTOR'S WAIVERS.
(a) Guarantor waives any right to require Bank to: (i) proceed
against Borrower or any other person; (ii) marshal assets or proceed against or
exhaust any security held from Borrower or any other person; (iii) give notice
of the terms, time and place of any public or private sale of personal property
security held from Borrower or any other person, or otherwise comply with the
provisions of A.R.S. Section 47-9504; (iv) take any action or pursue any other
remedy in Bank's power; or (v) make any presentment or demand for performance,
or give any notice of nonperformance, protest, notice of protest or notice of
dishonor hereunder or in connection with any obligations or evidences of
indebtedness held by Bank as security for or which constitute in whole or in
part the Indebtedness guaranteed hereunder, or in connection with the creation
of new or additional Indebtedness.
(b) Guarantor waives any defense to its obligations hereunder
based upon or arising by reason of: (i) any disability or other defense of
Borrower or any other person; (ii) the cessation or limitation from any cause
whatsoever, other than payment in full, of the Indebtedness of Borrower or any
other person; (iii) any lack of authority of any officer, director, partner,
agent or any other person acting or purporting to act on behalf of Borrower, if
a corporation, partnership or other type of entity, or any defect in the
formation of such Borrower; (iv) the application by Borrower of the proceeds of
any Indebtedness for purposes other than the purposes represented by Borrower
to, or intended or understood by, Bank or Guarantor; (v) any act or omission by
Bank which directly or indirectly results in or aids the discharge of Borrower
or any portion of the Indebtedness by operation of law or otherwise, or which in
any way impairs or suspends any rights or remedies of Bank against Borrower;
(vi) any impairment of the value of any interest in any security for the
Indebtedness or any portion thereof, including without limitation, the failure
to obtain or maintain perfection or recordation of any interest in any such
security, the release of any such security without substitution, and/or the
failure to preserve the value of, or to comply with applicable law in disposing
of, any such security; or (vii) any modification of the Indebtedness, in any
form whatsoever, including any modification made after revocation hereof to any
Indebtedness incurred prior to such revocation, and including without limitation
the renewal, extension, acceleration or other change in time for payment of, or
other change in the terms of, the Indebtedness or any portion thereof, including
increase or decrease of the rate of interest thereon. Until all Indebtedness
shall have been paid in full, Guarantor shall have no right of subrogation, and
Guarantor waives any right to enforce any remedy which Bank
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now has or may hereafter have against Borrower or any other person, and waives
any benefit of, or any right to participate in, any security now or hereafter
held by Bank. Guarantor further waives all rights and defenses Guarantor may
have arising out of (A) any election of remedies by Bank, even though that
election of remedies, such as a non-judicial foreclosure with respect to any
security for any portion of the Indebtedness, destroys Guarantor's rights of
subrogation or Guarantor's rights to proceed against Borrower for reimbursement,
or (B) any loss of rights Guarantor may suffer by reason of any rights, powers
or remedies of Borrower in connection with any anti-deficiency laws or any other
laws limiting, qualifying or discharging Borrower's Indebtedness, whether by
operation of law or otherwise, including any rights Guarantor may have to a fair
market value hearing to determine the size of a deficiency following any
trustee's foreclosure sale or other disposition of any real property security
for any portion of the Indebtedness, and Guarantor waives the benefits of A.R.S.
Sections 12-1566, 12-1641 et seq., 33-814, 44-142 and Rule 17(F) of the Arizona
Rules of Civil Procedure.
7. BANK'S RIGHTS WITH RESPECT TO GUARANTOR'S PROPERTY IN BANK'S
POSSESSION. In addition to all liens upon and rights of setoff against the
monies, securities or other property of Guarantor given to Bank by law, Bank
shall have a lien upon and a right of setoff against all monies, securities and
other property of Guarantor now or hereafter in the possession of or on deposit
with Bank, whether held in a general or special account or deposit or for
safekeeping or otherwise, and every such lien and right of setoff may be
exercised without demand upon or notice to Guarantor. No lien or right of setoff
shall be deemed to have been waived by any act or conduct on the part of Bank,
or by any neglect to exercise such right of setoff or to enforce such lien, or
by any delay in so doing, and every right of setoff and lien shall continue in
full force and effect until such right of setoff or lien is specifically waived
or released by Bank in writing.
8. SUBORDINATION. Any Indebtedness of Borrower now or hereafter held by
Guarantor is hereby subordinated to the Indebtedness of Borrower to Bank. Such
Indebtedness of Borrower to Guarantor is assigned to Bank as security for this
Guaranty and the Indebtedness and, if Bank requests, shall be collected and
received by Guarantor as trustee for Bank and paid over to Bank on account of
the Indebtedness of Borrower to Bank but without reducing or affecting in any
manner the liability of Guarantor under the other provisions of this Guaranty.
Any notes or other instruments now or hereafter evidencing such Indebtedness of
Borrower to Guarantor shall be marked with a legend that the same are subject to
this Guaranty and, if Bank so requests, shall be delivered to Bank. Guarantor
will, and Bank is hereby authorized in the name of Guarantor from time to time
to, execute and file financing statements and continuation statements and
execute such other documents and take such other action as Bank deems necessary
or appropriate to perfect, preserve and enforce its rights hereunder.
9. REMEDIES; NO WAIVER. All rights, powers and remedies of Bank
hereunder are cumulative. No delay, failure or discontinuance of Bank in
exercising any right, power or remedy hereunder shall affect or operate as a
waiver of such right, power or remedy; nor shall any single or partial exercise
of any such right, power or remedy preclude, waive or otherwise affect any other
or further exercise thereof or the exercise of any other right, power or remedy.
Any waiver, permit, consent or approval of any kind by Bank of any breach of
this Guaranty, or
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any such waiver of any provisions or conditions hereof, must be in writing and
shall be effective only to the extent set forth in writing.
10. COSTS, EXPENSES AND ATTORNEYS' FEES. Guarantor shall pay to Bank
immediately upon demand the full amount of all payments, advances, charges,
costs and expenses, including reasonable attorneys' fees (to include outside
counsel fees and all allocated costs of Bank's in-house counsel), expended or
incurred by Bank in connection with the enforcement of any of Bank's rights,
powers or remedies and/or the collection of any amounts which become due to Bank
under this Guaranty, and the prosecution or defense of any action in any way
related to this Guaranty, whether incurred at the trial or appellate level, in
an arbitration proceeding or otherwise, and including any of the foregoing
incurred in connection with any bankruptcy proceeding (including without
limitation, any adversary proceeding, contested matter or motion brought by Bank
or any other person) relating to Guarantor or any other person or entity. All of
the foregoing shall be paid by Guarantor with interest from the date of demand
until paid in full at a rate per annum equal to the greater of ten percent (10%)
or the Prime Rate in effect from time to time. The "Prime Rate" is a base rate
that Bank from time to time establishes and which serves as the basis upon which
effective rates of interest are calculated for those loans making reference
thereto.
11. SUCCESSORS; ASSIGNMENT. This Guaranty shall be binding upon and
inure to the benefit of the heirs, executors, administrators, legal
representatives, successors and assigns of the parties; provided however, that
Guarantor may not assign or transfer any of its interests or rights hereunder
without Bank's prior written consent. Guarantor acknowledges that Bank has the
right to sell, assign, transfer, negotiate or grant participations in all or any
part of, or any interest in, any Indebtedness of Borrower to Bank and any
obligations with respect thereto, including this Guaranty. In connection
therewith, Bank may disclose all documents and information which Bank now has or
hereafter acquires relating to Guarantor and/or this Guaranty, whether furnished
by Borrower, Guarantor or otherwise. Guarantor further agrees that Bank may
disclose such documents and information to Borrower.
12. AMENDMENT. This Guaranty may be amended or modified only in writing
signed by Bank and Guarantor.
13. UNDERSTANDING WITH RESPECT TO WAIVERS; SEVERABILITY OF PROVISIONS.
Guarantor warrants and agrees that each of the waivers set forth herein is made
with Guarantor's full knowledge of its significance and consequences, and that
under the circumstances, the waivers are reasonable and not contrary to public
policy or law. If any waiver or other provision of this Guaranty shall be held
to be prohibited by or invalid under applicable public policy or law, such
waiver or other provision shall be ineffective only to the extent of such
prohibition or invalidity, without invalidating the remainder of such waiver or
other provision or any remaining provisions of this Guaranty.
14. GOVERNING LAW. This Guaranty shall be governed by and construed in
accordance with the laws of the State of Arizona.
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15. ARBITRATION.
(a) Arbitration. Upon the demand of any party, any Dispute
shall be resolved by binding arbitration (except as set forth in (e) below) in
accordance with the terms of this Guaranty. A "Dispute" shall mean any action,
dispute, claim or controversy of any kind, whether in contract or tort,
statutory or common law, legal or equitable, now existing or hereafter arising
under or in connection with, or in any way pertaining to, this Guaranty and each
other document, contract and instrument required hereby or now or hereafter
delivered to Bank in connection herewith (collectively, the "Documents"), or any
past, present or future extensions of credit and other activities, transactions
or obligations of any kind related directly or indirectly to any of the
Documents, including without limitation, any of the foregoing arising in
connection with the exercise of any self-help, ancillary or other remedies
pursuant to any of the Documents. Any party may by summary proceedings bring an
action in court to compel arbitration of a Dispute. Any party who fails or
refuses to submit to arbitration following a lawful demand by any other party
shall bear all costs and expenses incurred by such other party in compelling
arbitration of any Dispute.
(b) Governing Rules. Arbitration proceedings shall be
administered by the American Arbitration Association ("AAA") or such other
administrator as the parties shall mutually agree upon in accordance with the
AAA Commercial Arbitration Rules. All Disputes submitted to arbitration shall be
resolved in accordance with the Federal Arbitration Act (Title 9 of the United
States Code), notwithstanding any conflicting choice of law provision in any of
the Documents. The arbitration shall be conducted at a location in Arizona
selected by the AAA or other administrator. If there is any inconsistency
between the terms hereof and any such rules, the terms and procedures set forth
herein shall control. All statutes of limitation applicable to any Dispute shall
apply to any arbitration proceeding. All discovery activities shall be expressly
limited to matters directly relevant to the Dispute being arbitrated. Judgment
upon any award rendered in an arbitration may be entered in any court having
jurisdiction; provided however, that nothing contained herein shall be deemed to
be a waiver by any party that is a bank of the protections afforded to it under
12 U.S.C. Section 91 or any similar applicable state law.
(c) No Waiver; Provisional Remedies, Self-Help and
Foreclosure. No provision hereof shall limit the right of any party to exercise
self-help remedies such as setoff, foreclosure against or sale of any real or
personal property collateral or security, or to obtain provisional or ancillary
remedies, including without limitation injunctive relief, sequestration,
attachment, garnishment or the appointment of a receiver, from a court of
competent jurisdiction before, after or during the pendency of any arbitration
or other proceeding. The exercise of any such remedy shall not waive the right
of any party to compel arbitration hereunder.
(d) Arbitrator Qualifications and Powers; Awards. Arbitrators
must be active members of the Arizona State Bar or retired judges of the state
or federal judiciary of Arizona, with expertise in the substantive law
applicable to the subject matter of the Dispute. Arbitrators are empowered to
resolve Disputes by summary rulings in response to motions filed prior to the
final arbitration hearing. Arbitrators (i) shall resolve all Disputes in
accordance with the substantive law of the state of Arizona, (ii) may grant any
remedy or relief that a court of the state of Arizona could order or grant
within the scope hereof and such ancillary relief as is necessary to make
effective any award, and (iii) shall have the power to award recovery of all
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costs and fees, to impose sanctions and to take such other actions as they deem
necessary to the same extent a judge could pursuant to the Federal Rules of
Civil Procedure, the Arizona Rules of Civil Procedure or other applicable law.
Any Dispute in which the amount in controversy is $5,000,000.00 or less shall be
decided by a single arbitrator who shall not render an award of greater than
$5,000,000.00 (including damages, costs, fees and expenses). By submission to a
single arbitrator, each party expressly waives any right or claim to recover
more than $5,000,000.00. Any Dispute in which the amount in controversy exceeds
$5,000,000.00 shall be decided by majority vote of a panel of three arbitrators;
provided however, that all three arbitrators must actively participate in all
hearings and deliberations.
(e) Judicial Review. Notwithstanding anything herein to the
contrary, in any arbitration in which the amount in controversy exceeds
$25,000,000.00, the arbitrators shall be required to make specific, written
findings of fact and conclusions of law. In such arbitrations (i) the
arbitrators shall not have the power to make any award which is not supported by
substantial evidence or which is based on legal error, (ii) an award shall not
be binding upon the parties unless the findings of fact are supported by
substantial evidence and the conclusions of law are not erroneous under the
substantive law of the state of Arizona, and (iii) the parties shall have in
addition to the grounds referred to in the Federal Arbitration Act for vacating,
modifying or correcting an award the right to judicial review of (A) whether the
findings of fact rendered by the arbitrators are supported by substantial
evidence, and (B) whether the conclusions of law are erroneous under the
substantive law of the state of Arizona. Judgment confirming an award in such a
proceeding may be entered only if a court determines the award is supported by
substantial evidence and not based on legal error under the substantive law of
the state of Arizona.
(f) Miscellaneous. To the maximum extent practicable, the AAA,
the arbitrators and the parties shall take all action required to conclude any
arbitration proceeding within 180 days of the filing of the Dispute with the
AAA. No arbitrator or other party to an arbitration proceeding may disclose the
existence, content or results thereof, except for disclosures of information by
a party required in the ordinary course of its business, by applicable law or
regulation, or to the extent necessary to exercise any judicial review rights
set forth herein. If more than one agreement for arbitration by or between the
parties potentially applies to a Dispute, the arbitration provision most
directly related to the Documents or the subject matter of the Dispute shall
control. This arbitration provision shall survive termination, amendment or
expiration of any of the Documents or any relationship between the parties.
IN WITNESS WHEREOF, the undersigned Guarantor has executed this
Guaranty as of 27th day of September, 2001.
ON-TIME STEEL MANAGEMENT, INC., a
Delaware corporation
By: /s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
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Title: VP
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