Exhibit 10.1b(9)
GUARANTY AND SURETYSHIP AGREEMENT
THIS AGREEMENT, dated as of January 28, 2001, made by STEEL DYNAMICS, INC.,
an Indiana corporation, in favor of the Lenders (the "Lenders") and the Agent
(the "Agent") under the Credit Agreement referred to below.
RECITALS:
A. Iron Dynamics, Inc., an Indiana corporation and a wholly owned
Subsidiary of the Guarantor (the "Borrower"), is party to a Credit Agreement,
dated as of December 31, 1997, as amended by the First through Eighth Amendments
thereto (the "Credit Agreement") among the lenders party thereto and Mellon
Bank, N.A., as Issuing Bank and as Agent. The Guarantor, as owner of all of the
outstanding shares of stock of the Borrower, will derive substantial direct and
indirect benefit from the execution and delivery by the Lenders of an Agreement
(the "Settlement Agreement"), dated on or about the date hereof, with respect to
the Credit Agreement and of certain other documentation in connection with the
Guarantor's credit facilities.
B. It is a condition precedent to the execution and delivery by the Lenders
and the Agent of the Settlement Agreement that the Guarantor execute and deliver
this Agreement. This Agreement is made by the Guarantor among other things to
induce the Lenders to enter into such Settlement Amendment.
C. The Guarantor further acknowledges that it has, independently and
without reliance upon any Lender, the Agent or any representation by or other
information from any Lender or the Agent, made its own credit analysis and
decision to enter into this Agreement.
NOW, THEREFORE, in consideration of the premises, and intending to be
legally bound, the Guarantor hereby agrees as follows:
ARTICLE I
Definitions
1.1. DEFINITIONS.
(a) GENERAL. Capitalized terms not otherwise defined herein shall have the
meanings given in the Credit Agreement. In addition to the other terms defined
elsewhere in this Agreement, as used herein the following terms shall have the
following meanings:
"Guaranteed Obligations" shall mean the obligations of the Borrower to
pay the principal amount of the Term Loans and the principal amount of
Revolving Credit Loans to the Lenders when due in accordance with the terms
of the Credit Agreement, whether at maturity, by mandatory prepayment, by
acceleration or otherwise.
"IDI Covered Term Loan Principal Installments" shall mean the two
installments of principal of the Term Loans under the Credit Agreement,
each in an original aggregate amount of $4,125,000, the scheduled
installment maturity date of one of which is November 30, 2002 and the
scheduled installment maturity date of the other of which is
May 30, 2003, and "IDI Covered Term Loan Principal Installment" shall mean
one of them.
"IDI Covered Revolving Credit Loan Principal Installments" shall mean
the four installments of principal of the Revolving Credit Loans under the
Credit Agreement, each in the aggregate amount of $421,052.63, the original
respective scheduled installment maturity dates of which are August 31,
2002, November 30, 2002, February 28, 2003 and May 30, 2003.
"Maximum Revolving Credit Loan Guaranty Amount" shall mean (x) One
Million Six Hundred Eighty-four Thousand Two Hundred Ten Dollars
($1,684,210) minus (y) the sum of the principal amounts of each of the IDI
Covered Revolving Credit Loan Principal Installments which the Borrower
shall have paid when due (at the original scheduled installment maturity or
by earlier acceleration).
"Maximum Term Loan Guaranty Amount" shall mean (i) Eight Million Two
Hundred Fifty Thousand Dollars ($8,250,000) if the Borrower shall fail to
pay both of the IDI Covered Term Loan Principal Installments when due (at
the original scheduled installment maturity or by earlier acceleration),
(ii) Four Million One Hundred Twenty-Five Thousand Dollars ($4,125,000) if
the Borrower shall fail to pay one of the IDI Covered Term Loan Principal
Installments when due but shall pay the other IDI Covered Principal
Installment when due (at the original scheduled installment maturity or by
earlier acceleration), or (iii) zero ($0) if the Borrower shall pay both of
the IDI Covered Term Loan Principal Installments when due (at the original
scheduled installment maturity or by acceleration or otherwise).
"Maximum Guaranty Amount" shall mean the sum of the Maximum Revolving
Credit Loan Guaranty Amount plus the Maximum Term Loan Guaranty Amount.
ARTICLE II
GUARANTY AND SURETYSHIP
2.1. GUARANTY AND SURETYSHIP. The Guarantor hereby absolutely,
unconditionally and irrevocably guarantees and becomes surety for the full and
punctual payment and performance of the Guaranteed Obligations as and when such
payment or performance shall become due (at scheduled maturity, by mandatory
prepayment, by acceleration or otherwise) in accordance with the terms of the
Loan Documents; provided, however, that the obligations of the Guarantor
hereunder shall not in any event exceed the Maximum Guaranty Amount. This
Agreement is an agreement of suretyship as well as of guaranty, is a guarantee
of payment and performance and not merely of collectibility, and is in no way
conditioned upon any attempt to collect from or proceed against the Borrower or
any other Person or any other event or circumstance. The obligations of the
Guarantor under this Agreement are direct and primary obligations of the
Guarantor and are independent of the Guaranteed Obligations, and a separate
action or actions may be brought against the Guarantor regardless of whether
action is brought against the Borrower or any other Person or whether the
Borrower or any other Person is joined in any such action or actions.
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2.2 OBLIGATIONS ABSOLUTE. The Guarantor agrees that, to the fullest extent
permitted by law, but subject to the limitation of the Guarantor's obligations
hereunder to the Maximum Guaranty Amount, the Guaranteed Obligations will be
paid strictly in accordance with the terms of the Loan Documents, regardless of
any law, regulation or order now or hereafter in effect in any jurisdiction
affecting the Guaranteed Obligations, any of the terms of the Loan Documents or
the rights of the Lenders, the Agent or any other Person with respect thereto.
To the fullest extent permitted by law, the obligations of the Guarantor under
this Agreement shall be absolute, unconditional and irrevocable, irrespective of
any of the following:
(a) any lack of legality, validity, enforceability or allowability (in
a bankruptcy, insolvency, reorganization, dissolution or similar
proceeding, or otherwise), or any avoidance or subordination, in whole or
in part, of any Loan Document or any of the Guaranteed Obligations;
(b) any increase, decrease or change in the amount, nature, type or
purpose of any of the Guaranteed Obligations (whether or not contemplated
by the Loan Documents as presently constituted); any change in the time,
manner, method or place of payment or performance of, or in any other term
of, any of the Guaranteed Obligations; any execution or delivery of any
additional Loan Documents; or any amendment to, or refinancing or refunding
of, any Loan Document or any of the Guaranteed Obligations;
(c) any impairment by any Lender, the Agent or any other Person of any
recourse of the Guarantor against the Borrower or any other Person; any
failure to assert any breach of or default under any Loan Document or any
of the Guaranteed Obligations; any extensions of credit in excess of the
amount committed under or contemplated by the Loan Documents, or in
circumstances in which any condition to such extensions of credit has not
been satisfied; any other exercise or non-exercise, or any other failure,
omission, breach, default, delay or wrongful action in connection with any
exercise or non-exercise, of any right or remedy against the Borrower or
any other Person under or in connection with any Loan Document or any of
the Guaranteed Obligations; any refusal of payment or performance of any of
the Guaranteed Obligations, whether or not with any reservation of rights
against the Guarantor; or any application of collections (including
collections resulting from realization upon any direct or indirect security
for the Guaranteed Obligations) to other obligations, if any, not entitled
to the benefits of this Agreement, in preference to Guaranteed Obligations
entitled to the benefits of this Agreement, or if any collections are
applied to Guaranteed Obligations, any application to particular Guaranteed
Obligations;
(d) any taking, exchange, amendment, termination, subordination,
release, loss or impairment of, or any failure to protect, perfect, or
preserve the value of, or any enforcement of, realization upon, or exercise
of rights or remedies under or in connection with, or any failure,
omission, breach, default, delay or wrongful action by any Lender, the
Agent or any other Person in connection with the enforcement of,
realization upon, or exercise of rights or remedies under or in connection
with, or any other action or inaction by any Lender, the Agent or any other
Person in respect of, any direct or indirect security
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for any of the Guaranteed Obligations. As used in this Agreement, "direct
or indirect security" for the Guaranteed Obligations, and similar phrases,
includes any collateral security, guaranty, suretyship, letter of credit,
capital maintenance agreement, put option, subordination agreement or other
right or arrangement of any nature providing direct or indirect assurance
of payment or performance of any of the Guaranteed Obligations, made by or
on behalf of any Person;
(e) any merger, consolidation, liquidation, dissolution, winding-up,
charter revocation or forfeiture, or other change in, restructuring or
termination of the corporate or partnership structure or existence of, the
Borrower or any other Person; any bankruptcy, insolvency, reorganization,
dissolution or similar proceeding with respect to the Borrower or any other
Person; or any action taken or election made by any Lender (including any
election under Section 1111(b)(2) of the United States Bankruptcy Code),
the Agent, the Borrower or any other Person in connection with any such
proceeding;
(f) any defense, setoff or counterclaim (including any defense of
failure of consideration, breach of warranty, statute of frauds,
bankruptcy, lack of legal capacity, statute of limitations, lender
liability, accord and satisfaction or usury, and excluding only the defense
of full, strict and indefeasible payment and performance), which may at any
time be available to the Borrower or any other Person with respect to any
Loan Document or any of the Guaranteed Obligations; or any discharge by
operation of law or release of the Borrower or any other Person from the
performance or observance of any Loan Document or any of the Guaranteed
Obligations; or
(g) any other event or circumstance, whether similar or dissimilar to
the foregoing, and whether known or unknown, which might otherwise
constitute a defense available to, or limit the liability of, the Borrower,
the Guarantor, a guarantor or a surety, excepting only full, strict and
indefeasible payment and performance of the Guaranteed Obligations.
2.3. WAIVERS, ETC. To the fullest extent permitted by law, the Guarantor
hereby waives any defense to or limitation on its obligations under this
Agreement arising out of or based on any event or circumstance referred to in
Section 2.2. Without limitation, to the fullest extent permitted by law, the
Guarantor waives each of the following:
(a) all notices, disclosures and demands of any nature which otherwise
might be required from time to time to preserve intact any rights against
the Guarantor, including (i) any notice of any event or circumstance
described in Section 2.2, (ii) any notice required by any law, regulation
or order now or hereafter in effect in any jurisdiction, (iii) any notice
of nonpayment, nonperformance, dishonor, or protest under any Loan Document
or any of the Guaranteed Obligations, (iv) any notice of the incurrence of
any Guaranteed Obligation, (v) any notice of any default or any failure on
the part of the Borrower or any other Person to comply with any Loan
Document or any of the Guaranteed Obligations or any direct or indirect
security for any of the Guaranteed Obligations, and (vi) any notice of any
information pertaining to the business, operations, condition (financial or
otherwise) or prospects of the Borrower or any other Person;
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(b) any right to any marshalling of assets, to the filing of any claim
against the Borrower or any other Person in the event of any bankruptcy,
insolvency, reorganization, dissolution or similar proceeding, or to the
exercise against the Borrower or any other Person of any other right or
remedy under or in connection with any Loan Document or any of the
Guaranteed Obligations or any direct or indirect security for any of the
Guaranteed Obligations; any requirement of promptness or diligence on the
part of any Lender, the Agent or any other Person; any requirement to
exhaust any remedies under or in connection with, or to mitigate the
damages resulting from default under, any Loan Document or any of the
Guaranteed Obligations or any direct or indirect security for any of the
Guaranteed Obligations; and any requirement of acceptance of this
Agreement, and any requirement that the Guarantor receive notice of such
acceptance; and
(c) any defense or other right arising by reason of any law now or
hereafter in effect in any jurisdiction pertaining to election of remedies
(including anti-deficiency laws, "one action" laws or similar laws), or by
reason of any election of remedies or other action or inaction by any
Lender or the Agent (including commencement or completion of any judicial
proceeding or nonjudicial sale or other action in respect of collateral
security for any of the Guaranteed Obligations), which results in denial or
impairment of the right of the Lenders or the Agent to seek a deficiency
against the Borrower or any other Person, or which otherwise discharges or
impairs any of the Guaranteed Obligations or any recourse of the Guarantor
against the Borrower or any other Person.
2.4. REINSTATEMENT. This Agreement shall continue to be effective, or be
automatically reinstated, as the case may be, subject in either case to the
limitation of the Guarantor's obligations hereunder to the Maximum Guaranty
Amount, if payment of any of the Guaranteed Obligations is avoided, rescinded or
must otherwise be returned by any Lender or the Agent for any reason, all as
though such payment had not been made (it being understood that, in such case,
for purposes of the definitions of the terms "Maximum Revolving Credit Loan
Guaranty Amount" and "Maximum Term Loan Guaranty Amount" in Section 1.1 hereof,
such payment so avoided, rescinded or otherwise returned shall be deemed to have
not been made).
2.5. NO STAY. Without limitation of any other provision of this Agreement,
if any acceleration of the time for payment or performance of any Guaranteed
Obligation, or any condition to any such acceleration, shall at any time be
stayed, enjoined or prevented for any reason (including stay or injunction
resulting from the pendency against the Borrower or any other Person of a
bankruptcy, insolvency, reorganization, dissolution or similar proceeding), the
Guarantor agrees that, for purposes of this Agreement and its obligations
hereunder, such Guaranteed Obligation shall be deemed to have been accelerated,
and such condition to acceleration shall be deemed to have been met.
2.6. PAYMENTS. All payments to be made by the Guarantor pursuant to this
Agreement shall be made at the times and in the manner prescribed for payments
in the Credit Agreement and the Notes, without setoff, counterclaim, withholding
or other deduction of any nature.
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2.7. SUBROGATION, ETC. The Guarantor hereby irrevocably waives and releases
any and all rights it now has or hereafter may have (known and unknown, whether
arising by operation of law, by agreement or otherwise) against the Borrower or
any other Person arising from the existence, payment, performance or enforcement
of any of the obligations of the Guarantor under or in connection with this
Agreement or any other Loan Document, including any and all rights of
subrogation, reimbursement, exoneration, contribution or indemnity, and any and
all other rights that would result in the Guarantor being deemed a "creditor"
under the United States Bankruptcy Code of the Borrower or any other Person.
2.8. CONTINUING AGREEMENT. This Agreement is a continuing guaranty and
shall continue in full force and effect until (i) all Guaranteed Obligations
have been paid in full (subject to reinstatement in accordance with Section
2.4), (ii) indefeasible payment in full by the Guarantor hereunder of the
Maximum Guaranty Amount or (iii) termination hereof as provided in the
Settlement Agreement, whichever is earliest to occur.
2.9. OTHER GUARANTIES. This Agreement is in addition to, and does not
replace, substitute for or modify, the Guaranty and Suretyship Agreement, dated
as of March 15, 2001, or the Guaranty and Suretyship Agreement, dated as of July
20, 2001, in each case made by the Guarantor in favor of the Lenders.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
The Guarantor hereby represents and warrants to the Lenders and the Agent
as follows:
3.1. Each of the representations and warranties with respect to the
Guarantor (as a Loan Party) and with respect to this Guaranty and Suretyship
Agreement (as a Loan Document) made in Section 3.01, 3.02, 3.03, 3.04, 3.05,
3.11 and 3.17 of the Credit Agreement is true and correct on and as of the date
hereof as if made on and as of such date.
ARTICLE IV
MISCELLANEOUS
4.1. AMENDMENTS, ETC. No amendment to or waiver of any provision of this
Agreement, and no consent to any departure by the Guarantor herefrom, shall in
any event be effective unless in a writing manually signed by or on behalf of
the Agent with the consent and approval of the requisite number of Lenders. Any
such waiver or consent shall be effective only in the specific instance and for
the specific purpose for which given.
4.2. NO IMPLIED WAIVER; REMEDIES CUMULATIVE. No delay or failure of any
Lender or the Agent in exercising any right or remedy under this Agreement shall
operate as a waiver thereof; nor shall any single or partial exercise of any
such right or remedy preclude any other or further exercise thereof or the
exercise of any other right or remedy. The rights and remedies of the Lenders
and the Agent under this Agreement are cumulative and not exclusive of
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any other rights or remedies available hereunder, under any other agreement, at
law, or otherwise.
4.3. NOTICES. Except to the extent, if any, otherwise expressly provided
herein, all notices and other communications (collectively, "notices") under
this Agreement shall be in writing (including facsimile transmission) and shall
be sent by first-class mail, by nationally-recognized overnight courier, by
personal delivery, or by facsimile transmission, in all cases with charges
prepaid. All notices shall be sent, if to the Guarantor, to its address
specified on the signature page hereof, or if to the Lenders or the Agent at the
applicable respective addresses for notices under the Credit Agreement, or, in
any case, to such other address as shall have been designated by the applicable
party by notice to the other party hereto. Any properly given notice shall be
effective when received, except that properly given notices to the Guarantor
shall be effective at the following time, if earlier: if given by telephone,
when telephoned; if by first-class mail, three Business Days after deposit in
the mail; if by overnight courier, one Business Day after pickup by such
courier; and if by facsimile transmission, upon transmission. The Lenders and
the Agent may rely on any notice (whether or not made in a manner contemplated
by this Agreement) purportedly made by or on behalf of the Guarantor, and
neither any Lender nor the Agent shall have any duty to verify the identity or
authority of the Person giving such notice.
4.4. EXPENSES. The Guarantor agrees to pay upon demand all reasonable
expenses (including reasonable fees and expenses of counsel) which the Lenders
or the Agent may incur from time to time arising from or relating to the
administration of, or exercise, enforcement or preservation of rights or
remedies under, this Agreement.
4.5. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement of
the parties hereto with respect to the subject matter hereof and supersedes all
prior and contemporaneous understandings and agreements.
4.6. SURVIVAL. All representations and warranties of the Guarantor
contained in or made in connection with this Agreement shall survive, and shall
not be waived by, the execution and delivery of this Agreement, any
investigation by or knowledge of the Lender, any extension of credit, or any
other event or circumstance whatever.
4.7. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, and all such
counterparts shall constitute but one and the same agreement.
4.8. SETOFF. In the event that any obligation of the Guarantor now or
hereafter existing under this Agreement or any other Loan Document shall have
become due and payable, each Lender shall have the right from time to time,
without notice to the Guarantor, to set off against and apply to such due and
payable amount any obligation of any nature of such Lender to the Guarantor,
including all deposits (whether time or demand, general or special,
provisionally or finally credited, however evidenced) now or hereafter
maintained by the Guarantor with such Lender. To the fullest extent permitted by
law, such right shall be absolute and unconditional in all circumstances and,
without limitation, shall exist whether such obligation to the Guarantor is
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absolute or contingent, matured or unmatured (it being agreed that such Lender
may deem such obligation to be then due and payable at the time of such setoff),
regardless of the offices or branches through which the parties are acting with
respect to the offset obligations, regardless of whether the offset obligations
are denominated in the same or different currencies, and regardless of the
existence or adequacy of any other direct or indirect security or any other
right or remedy available to such Lender. Nothing in this Agreement or any other
Loan Document shall be deemed a waiver of or restriction on any right of setoff
or banker's lien available to any Lender under this Section 5.8, at law or
otherwise. The Guarantor hereby agrees that, to the fullest extent permitted by
law, any affiliate of any Lender, and any holder of a participation in any
obligation of the Guarantor under this Agreement, shall have the same rights of
setoff as such Lender as provided in this Section 5.8 (regardless of whether
such affiliate or participant otherwise would be deemed a creditor of the
Guarantor).
4.9. CONSTRUCTION. In this Agreement, unless the context otherwise clearly
requires, references to the plural include the singular, the singular the
plural, and the part the whole; the neuter case includes the masculine and
feminine cases; and "or" is not exclusive. In this Agreement, "include,"
"includes," "including" and similar terms are not limiting; [and] "hereof,"
"herein," "hereunder" and similar terms refer to this Agreement as a whole and
not to any particular provision; and "expenses," "costs," "out-of-pocket
expenses" and similar terms include the charges of in-house counsel, auditors
and other professionals of the relevant Person to the extent that such charges
are routinely identified and charged under such Person's cost accounting system.
Section and other headings in this Agreement, and any table of contents herein,
are for reference purposes only and shall not affect the interpretation of this
Agreement in any respect. Section and other references in this Agreement are to
this Agreement unless otherwise specified. This Agreement has been fully
negotiated between the applicable parties, each party having the benefit of
legal counsel, and accordingly neither any doctrine of construction of
guaranties or suretyships in favor of the guarantor or surety, nor any doctrine
of construction of ambiguities against the party controlling the drafting, shall
apply to this Agreement.
4.10. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon the
Guarantor, its successors and assigns, and shall inure to the benefit of and be
enforceable by the Lenders, the Agent and their respective successors and
assigns (it being understood that the Guarantor shall have no right to assign,
transfer or delegate its obligations or duties hereunder). Without limitation of
the foregoing, any Lender (and any successive assignee or transferee) from time
to time may, in accordance with the Credit Agreement, assign or otherwise
transfer all or any portion of its rights or obligations under the Loan
Documents (including all or any portion of any commitment to extend credit), or
any Guaranteed Obligations, to any other Person, and such Guaranteed Obligations
(including any Guaranteed Obligations resulting from extension of credit by such
other Person under or in connection with the Loan Documents) shall be and remain
Guaranteed Obligations entitled to the benefit of this Agreement, and to the
extent of its interest in such Guaranteed Obligations such other Person shall be
vested with all the benefits in respect thereof granted to such Lender in this
Agreement or otherwise.
4.11. CERTAIN LEGAL MATTERS.
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(a) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, EXCLUSIVE OF CHOICE OF LAW
PRINCIPLES.
(b) SUBMISSION TO JURISDICTION AND VENUE; CONSENT TO SERVICE OF PROCESS;
WAIVER OF JURY TRIAL; ETC. TO THE FULLEST EXTENT PERMITTED BY LAW, THE GUARANTOR
HEREBY IRREVOCABLY AND UNCONDITIONALLY:
(I) AGREES THAT ANY ACTION, SUIT OR PROCEEDING BY ANY PERSON ARISING
FROM OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR ANY
STATEMENT, COURSE OF CONDUCT, ACT, OMISSION OR EVENT IN CONNECTION WITH ANY
OF THE FOREGOING (COLLECTIVELY, "RELATED LITIGATION") MAY BE BROUGHT IN ANY
STATE OR FEDERAL COURT OF COMPETENT JURISDICTION SITTING IN ALLEGHENY
COUNTY, PENNSYLVANIA OR NEW YORK, NEW YORK, SUBMITS TO THE JURISDICTION OF
SUCH COURTS, AND AGREES NOT TO BRING ANY RELATED LITIGATION IN ANY OTHER
FORUM (BUT NOTHING HEREIN SHALL AFFECT THE RIGHT OF THE LENDER TO BRING ANY
RELATED LITIGATION IN ANY OTHER FORUM);
(II) ACKNOWLEDGES THAT SUCH COURTS WILL BE THE MOST CONVENIENT FORUM
FOR ANY RELATED LITIGATION, WAIVES ANY OBJECTION TO THE LAYING OF VENUE OF
ANY RELATED LITIGATION BROUGHT IN ANY SUCH COURT, WAIVES ANY CLAIM THAT ANY
RELATED LITIGATION BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN
INCONVENIENT FORUM, AND WAIVES ANY RIGHT TO OBJECT, WITH RESPECT TO ANY
RELATED LITIGATION, THAT SUCH COURT DOES NOT HAVE JURISDICTION OVER IT;
(III) CONSENTS AND AGREES TO SERVICE OF ANY SUMMONS, COMPLAINT OR
OTHER LEGAL PROCESS IN ANY RELATED LITIGATION BY REGISTERED OR CERTIFIED
U.S. MAIL, POSTAGE PREPAID, TO IT AT THE ADDRESS FOR NOTICES DESCRIBED IN
THIS AGREEMENT, AND CONSENTS AND AGREES THAT SUCH SERVICE SHALL CONSTITUTE
IN EVERY RESPECT VALID AND EFFECTIVE SERVICE (BUT NOTHING HEREIN SHALL
AFFECT THE VALIDITY OR EFFECTIVENESS OF PROCESS SERVED IN ANY OTHER MANNER
PERMITTED BY LAW); AND
(IV) WAIVES THE RIGHT TO TRIAL BY JURY IN ANY RELATED LITIGATION.
(c) LIMITATION OF LIABILITY. TO THE FULLEST EXTENT PERMITTED BY LAW, NO
CLAIM MAY BE MADE BY THE GUARANTOR AGAINST THE LENDER OR ANY AFFILIATE,
DIRECTOR, OFFICER, EMPLOYEE, ATTORNEY OR AGENT OF THE LENDER FOR ANY SPECIAL,
INDIRECT, CONSEQUENTIAL OR PUNITIVE DAMAGES IN RESPECT OF ANY CLAIM ARISING FROM
OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR ANY STATEMENT,
COURSE OF CONDUCT, ACT, OMISSION OR EVENT IN CONNECTION WITH ANY OF THE
FOREGOING (WHETHER BASED ON BREACH OF CONTRACT, TORT OR ANY OTHER THEORY OF
LIABILITY); AND THE GUARANTOR HEREBY WAIVES, RELEASES AND AGREES NOT TO XXX UPON
ANY CLAIM FOR ANY SUCH DAMAGES, WHETHER OR NOT ACCRUED AND WHETHER OR NOT KNOWN
OR SUSPECTED TO EXIST. THIS PARAGRAPH (C) SHALL NOT LIMIT ANY RIGHTS OF THE
GUARANTOR ARISING SOLELY OUT OF GROSS NEGLIGENCE OR WILLFUL MISCONDUCT. THE
GUARANTOR ACKNOWLEDGES THAT IT HAS BEEN REPRESENTED BY LEGAL COUNSEL IN
CONNECTION WITH THE EXECUTION AND DELIVERY OF THIS AGREEMENT AND THAT IT
UNDERSTANDS THE PROVISIONS OF THIS AGREEMENT.
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IN WITNESS WHEREOF, the Guarantor has caused this Agreement to be duly
executed and delivered as of the date first above written.
STEEL DYNAMICS, INC.
By
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Name:
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Title:
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Address for Notices:
Steel Dynamics, Inc.
0000 Xxxxxx Xxxxxxxxx
Xxxxx 000
Xxxx Xxxxx, Xxxxxxx 00000
Attn: Chief Financial Officer
Telephone: 000-000-0000
Fax: 000-000-0000
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