Exhibit B-3
GUARANTY
To: General Electric Capital Corporation
Danbury Operating Center - VFS GROUP NAME
X.X. Xxx 0000
00 Xxxxxxx Xxxx
Xxxxxxx, XX 00000-0000 Date:______________________________
FOR VALUE RECEIVED and AS AN INDUCEMENT to you to enter
into a loan agreement, and otherwise extend financial credit and
accommodation, to Iron Dynamics, Inc., an Indiana corporation, with
its principal place of business at__________________________
(hereinafter, the "Customer") pursuant to the terms of (i) a Loan
Agreement dated __________________, 199_, (ii) Promissory Note
dated ____________________________, 199_ in the principal amount of
$6,500,000 (the "Note") and (iii) Purchase Money Security Agreement
dated _____________________, 199_, each made by Customer in favor
of you (together with any documents related thereto, individually
and collectively referred to as "Loan Agreements"), and in
consideration of your so doing, but without in any way binding you
to do so, the undersigned hereby guarantees to you, your successors
and assigns, the due, regular and punctual payment of any sum or
sums of money which Customer now owes you or which Customer shall
at any time or from time to time hereafter owe you under each Loan
Agreement, and whether it represents an original balance, an
accelerated balance, a balance reduced by part payment or a
deficiency after sale of collateral or otherwise, and the
undersigned does hereby undertake and guarantee to pay on demand
all loses, costs, attorney's fees and expenses which may be
suffered by you by reason of Customer's default under each Loan
Agreement or the default of the undersigned under this Guaranty.
In the event that the Customer shall fail to pay duly and
punctually to you any amounts guaranteed hereby, the undersigned
will, within ten (10) days after receipt of notice from you, duly
pay such amounts to you.
The undersigned agrees that nothing herein shall be
deemed to render this Guaranty in any way conditional, or to
require you first to seek or exhaust any remedy against Customer,
its successors or assigns, or any other person obligated or liable
under said Loan Agreement, this Guaranty or any other instrument;
and it is agreed that you may, upon default of Customer, or at any
time thereafter, make demand upon and receive payment or
performance by Customer, its successors or assigns, or any other
person.
Notice of acceptance of this Guaranty and of any default
by Customer or any other person is hereby waived. Presentment,
protest and demand, and notice of protest, demand and dishonor of
any and all Loan Agreements are hereby waived. The undersigned
waives any and all impairment of its rights, including without
limitation release of any obligor or collateral (with or without
substitution), failure to perfect or maintain perfection or to
obtain title to any collateral, howsoever arising. Notice of
adverse change in Customer's financial condition or of any other
fact which might materially increase the risk of the undersigned is
also waived, and the undersigned agrees that you shall not be
required first to foreclose, proceed against, or exhaust any
collateral or security for any indebtedness or obligation hereby
guaranteed, before requiring the undersigned to pay the full amount
of the liability hereby created. Suit may be brought and
maintained against the undersigned, at your election, without
joinder of Customer or any other person as parties thereto.
Extensions of the time of payment or renewals of the Loan
Agreements or extensions of the time of performance of agreements
or any other indulgence may be granted to Customer and/or any
secondary obligors on any of said Loan Agreements without notice to
the undersigned and all settlements, compromises, compositions,
accounts stated and agreed balances made in good faith between any
primary or secondary obligors on any Loan Agreement and Customer or
you shall be binding upon the undersigned. The undersigned hereby
waives exercise of possessory, collection, foreclosure or other
remedies by you against Customer, other obligors or collateral on
any and all Loan Agreements. In the event of default hereunder,
you may at any time inspect the undersigned's records, or at your
option, the undersigned shall furnish you with a current
independent audit report. Any failure by you to exercise your
rights hereunder shall not give rise to any estoppel against you or
excuse the undersigned from performing hereunder. Your waiver of
any right to demand performance hereunder shall not be a waiver of
any subsequent or other right to demand performance hereunder. IN
ANY ACTION, PROCEEDING OR LITIGATION BASED HEREON, IN CONNECTION
HEREWITH OR ARISING HEREFROM, THE UNDERSIGNED WAIVES ANY RIGHT TO
TRIAL BY JURY. All amounts payable hereunder shall be paid in
immediately available funds.
The obligations of the undersigned hereunder shall in no
way be affected or impaired by (i) Customer's voluntary or
involuntary bankruptcy, assignment for the benefit of creditors,
reorganization or similar proceedings affecting Customer or any of
its assets, or (ii) the release of Customer from any of its
agreements contained in any Loan Agreement by operation of law or
otherwise. The undersigned shall have no right of contribution,
subrogation, reimbursement, indemnity or any other form of recourse
to any assets or property of, or otherwise against, Customer or to
any collateral or security under the Loan Agreement. The
obligations of the undersigned hereunder shall be reinstated and
revived with respect to any amount which at any time is paid to you
and is thereafter required to be, and is restored or returned by
you to the undersigned or the undersigned's trustee or the Customer
or the Customer's trustee or receiver or similar official, upon the
bankruptcy, insolvency or reorganization of the undersigned or the
Customer or for any other reason, all as though such amount had not
been paid by the undersigned.
Each of the undersigned hereby represents and warrants,
as of the date hereof: that in connection with the loan to be made
by you to finance the purchase of equipment by the Customer from
you (which such loan would not be made without this Guaranty) and
the provision of electricity by the undersigned to power such
equipment pursuant to a Contract for Electric Service or otherwise,
the undersigned will derive financial and other benefits by
providing this Guaranty; that it is duly organized and validly
existing and has full corporate power to enter into this Guaranty
and to carry out the transactions contemplated hereby and that the
execution and delivery of this Guaranty has been duly authorized by
all necessary corporate action; that this Guaranty constitutes a
legal, valid and binding obligation enforceable in accordance with
its terms; that neither the execution of this Guaranty nor the
fulfillment of the obligations created hereunder will conflict with
or result in a breach of any other agreement or instrument to which
the undersigned is a party or by which it is bound or be in
violation or default of any statute, rule, or decree of any court,
administrative agency or governmental body to which it may be
subject; that all financial data of the undersigned previously
delivered to you present fairly the financial position of the
undersigned as of the date thereof and the results of operations of
the undersigned for the periods covered thereby, all in conformity
with generally accepted accounting principles, applied on a
consistent basis; that since the date of the latest such financial
data, there has been no material adverse change in the financial
condition of the undersigned that would materially impair the
undersigned's ability to perform its obligations hereunder; that
the undersigned is not in material default with respect to any
indenture, loan agreement, mortgage, lease, deed or other similar
agreement to which it is a party or by which it is bound; that
there are no suits or proceedings pending or, to the knowledge of
the undersigned, threatened in any court or before any regulatory
commission, board or other administrative or governmental agency
against or affecting the undersigned which will have a material
adverse effect on its financial condition or operations or that
would materially impair its ability to perform its obligations
hereunder; and that the undersigned has filed all federal, state
and local tax returns and other reports required by law and has
paid all charges that are due and payable, other than those being
contested in good faith.
Upon the occurrence of an Event of Default and payment
_______________ this Guaranty under any Loan Agreement, the
undersigned shall have the right to purchase all, but not less than
all, of your right and the Guaranty shall __________ title and
interest in and to the Loan Agreements upon at least 30 days prior
notice to you. The undersigned shall purchase such right, title
and interests for an amount equal to the aggregate of (i) the
aggregate unpaid principal amount of the Note, plus (ii) the amount
of accrued but unpaid interest on the Note plus (iii) all other
sums then owing hereunder and under the Loan Agreements, and
concurrently therewith, you shall sell, assign and transfer to the
undersigned all of your right, title and interest in the Loan
Agreements, including your obligations, which the undersigned
shall, upon any payment by the Customer be deemed to have made a
payment to you hereunder without the necessity of any notice or
actual transfer of funds. In addition, upon such purchase the
undersigned agrees to be bound by the terms and conditions of that
certain Consent and Agreement dated _____________, 1998 between you
and Mellon Bank, N. A., as your assignee.
As used in this Guaranty, the word "person" shall include
any individual, corporation or partnership, and refers to each of
the undersigned and to anyone absolutely, contingently, partly or
wholly liable for payment and/or performance of the Customer's
obligations being guaranteed hereunder. All of the undersigned's
rights and obligations hereunder are joint and several and shall
bind its or their heirs, representatives, successors or assigns.
The benefits hereof shall extend to and include your successors and
assigns. This Guaranty and each of its provisions may only be
waived, modified, varied, released, or be terminated by undersigned
serving written notice upon you, but as to all obligations of the
Customer, and unconditional until the same are fully paid,
performed and discharged. Your obligations hereunder shall remain
in full force and effect until termination (except with respect to
obligations accrued hereunder through such date of termination)
upon a determination by you, in your sole discretion, that the
Customer's financial condition warrants an investment grade credit
rating as established by you or a nationally recognized rating
agency.
If any provisions of this Guaranty are in conflict with
any applicable statute, rule or law, then such provisions shall be
deemed null and void to the extent that they may conflict
therewith, but without invalidating any other provision hereof.
This Guaranty shall be governed by, and construed in accordance
with, the laws of the State of New York, without regard for the
choice of law provisions thereof.
Each signatory on behalf of a corporate guarantor
warrants that he or she had authority to sign on behalf of such
corporation and by so signing, to bind said guarantor corporation
hereunder.
IN WITNESS WHEREOF, this Guaranty is executed as of the day
and year above written.
INDIANA MICHIGAN POWER COMPANY
By:_________________________________
Name:_______________________________
Title:______________________________
Taxpayer ID Number:_________________
