Contract
Exhibit 10.12
U.K. GUARANTEE AGREEMENT
This U.K. GUARANTEE AGREEMENT (as the same may hereafter be amended, supplemented or otherwise
modified, this “Guarantee”), dated as of January 2, 2008, is by A.M. CASTLE & CO., a
Maryland corporation, KEYSTONE TUBE COMPANY, LLC, a Delaware limited liability company, TOTAL
PLASTICS, INC., a Michigan corporation, PARAMONT MACHINE COMPANY, LLC, a Delaware limited liability
company, ADVANCED FABRICATING TECHNOLOGY, LLC, a Delaware limited liability company, XXXXXX STEEL
PLATE CO., a Delaware corporation, DATAMET, INC., an Illinois corporation, TRANSTAR INVENTORY
CORP., a Delaware corporation, TRANSTAR METALS CORP., a Delaware corporation, and TRANSTAR MARINE
CORP., a Delaware corporation (each of whom, together with each other Person which from time to
time becomes a Guarantor pursuant to Section 5 hereof, is referred to herein, individually,
as a “Guarantor” and, collectively, as the “Guarantors”) in favor of U.S. Revolving
B Credit Lenders (as defined in the Credit Agreement referred to below) and BANK OF AMERICA, N.A.,
as U.S. Agent for U.S. Revolving B Credit Lenders (together with its successors and assigns, herein
referred to as “U.S. Agent”).
RECITALS:
WHEREAS, A.M. Castle Metals UK, Limited (“U.K. Borrower”) is a wholly-owned Subsidiary
of A.M. Castle & Co. (together with its successors and assigns, “U.S. Borrower”);
WHEREAS, each other Guarantor is a direct or indirect Subsidiary of U.S. Borrower;
WHEREAS, U.S. Borrower, A. M. Castle & Co. (Canada) Inc., a corporation organized under the
laws of the Province of Ontario, Canada (“Canadian Borrower”), the lenders from time to
time party thereto, including U.S. Lenders, U.S. Agent and Bank of America, N.A., Canada Branch,
entered into an Amended and Restated Credit Agreement, dated as of September 5, 2006 (as from time
to time modified, amended, restated or supplemented, the “Credit Agreement”), pursuant to
which the lenders party thereto have agreed to extend certain credit facilities to U.S. Borrower
and Canadian Borrower;
WHEREAS, the First Amendment to the Credit Agreement, dated as of the date hereof, designates
U.K. Borrower as a Borrower under the Credit Agreement;
WHEREAS, each Guarantor will receive substantial direct and indirect economic, financial and
other benefits as a result of the credit facilities provided to U.K. Borrower pursuant to the
Credit Agreement.
NOW THEREFORE, in consideration of the foregoing, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, each Guarantor hereby
agrees as follows:
11. DEFINITIONS.
All capitalized terms used herein and not defined herein have the respective meanings given
them in the Credit Agreement.
12. GUARANTEE.
12.1 Guarantee of Payment and Performance. Each Guarantor hereby absolutely, unconditionally
and irrevocably, on a joint and several basis with each other Guarantor, guarantees to U.S. Agent
and U.S. Revolving B Credit Lenders:
(a) the full and punctual payment by U.K. Borrower of the U.S. Obligations at any time
payable under the Loan Documents in each case when and as the same shall become due and
payable, whether at maturity, pursuant to mandatory or optional prepayment, by acceleration
or otherwise, all in accordance with the terms and provisions of this Guarantee, the Credit
Agreement and the other Loan Documents, including, without limitation, overdue interest,
post-petition interest, indemnification payments and all of such obligations which would
become due but for the operation of the automatic stay pursuant to Section 362(a) of the
United States Bankruptcy Code and the operation of Sections 502(b) and 506(b) of the United
States Bankruptcy Code; and
(b) the full and punctual performance by U.K. Borrower of all duties, agreements,
covenants and obligations of U.K. Borrower contained in the Credit Agreement and the other
Loan Documents,
and the full and prompt payment, on demand, of all reasonable costs and expenses incurred by (x)
U.S. Agent in connection with the negotiation, preparation, execution and delivery of this
Guarantee and (y) U.S. Agent, U.S. Revolving B Credit Lenders or any trustee or agent acting on
behalf of U.S. Agent and/or U.S. Revolving B Credit Lenders in enforcing any of its rights and
remedies under this Guarantee, the Credit Agreement or any of the other Loan Documents, including,
but not limited to, all reasonable attorneys’ fees and expenses (whether or not there is
litigation), court costs and all costs in connection with any proceedings under any Debtor Relief
Laws (collectively, the “Guarantied Obligations”), provided that the Guarantors shall not
be liable for the reasonable fees and expenses of more than one separate firm of attorneys
representing U.S. Agent (plus any special or local counsel retained by such firm).
12.2 Nature of Guarantee. This is a continuing, absolute and unconditional Guarantee of
payment and performance and not merely of collection, and shall continue in full force and effect
until such time as the Guarantied Obligations have been fully and irrevocably paid. This Guarantee
is in addition to and is not in any way prejudiced by any other guarantee or security now or
subsequently held by any U.S. Revolving B Credit Lender or U.S. Agent.
12.3 Binding Nature of Certain Adjudications. Each Guarantor shall be conclusively bound by
the final adjudication in any action or proceeding, legal or otherwise to which U.K. Borrower is a
party, involving any controversy arising under, in connection with, or in any way related to, any
of the Guarantied Obligations, and by a final judgment, award or decree entered therein.
12.4 No Duty to Pursue Others. Upon the occurrence and during the continuance of an Event of
Default, U.S. Agent or any trustee or agent acting on behalf of U.S. Agent may proceed to enforce
its rights and remedies directly against any one or more of the Guarantors without first proceeding
against U.K. Borrower or any other Person liable for the Guarantied Obligations or any security for
the Guarantied Obligations.
12.5 No Release of Guarantors. Each Guarantor’s liability under this Guarantee shall not be
limited, diminished or extinguished by, and each Guarantor shall not be entitled to raise as a
defense, any:
(a) invalidity, irregularity or unenforceability of the Guarantied Obligations or of
such Guarantor’s obligations hereunder;
(b) failure of such Guarantor to be given notice of default by U.K. Borrower;
(c) reorganization, merger or consolidation of U.K. Borrower or any Guarantor into or
with any other Person;
(d) waiver of U.K. Borrower’s defaults or extensions of due dates for payments or other
accommodations, indulgences or forbearance granted to U.K. Borrower;
(e) release of or non-perfection with respect to part or all of any security for the
Guarantied Obligations;
(f) taking or accepting of any other security, collateral or guaranty of payment of any
or all of the Guarantied Obligations;
(g) release of or settlement or compromise with any one or more Persons who constitute
guarantors or the release of or settlement or compromise with any one or more Persons who
are otherwise liable for the payment or performance of all or any portion of the Guarantied
Obligations and who are not primary obligors thereon;
(h) any loss or impairment of any right of any Guarantor for subrogation, reimbursement
or contributions;
(i) assignment or other transfer by U.S. Agent or any U.S. Revolving B Credit Lender
(or any trustee or agent acting on the behalf of U.S. Agent or any U.S. Revolving B Credit
Lender, as the case may be) of any part of the Guarantied Obligations, or any collateral or
security securing any portion of the Guarantied Obligations;
(j) illegality or impossibility of performance on the part of U.K. Borrower or the
Guarantors under the Credit Agreement or this Guarantee; or
(k) other acts or omissions of U.S. Agent or any U.S. Revolving B Credit Lender which,
in the absence of this Section, would operate so as to impair, diminish or extinguish any
Guarantor’s liability under this Guarantee.
12.6 Certain Waivers.
(a) Waiver of Notice. Each Guarantor hereby waives notice of (i) acceptance of this
Guarantee, (ii) any amendment, extension or other modification of the Credit Agreement
and/or any of the other Loan Documents, (iii) any loans or advances made by any U.S.
Revolving B Credit Lenders to U.K. Borrower, (iv) the occurrence of a Default or Event of
Default, (v) any transfer or other disposition of the Guarantied Obligations pursuant to the
Credit Agreement, and (vi) any other action at any time taken or omitted by U.S. Agent or
any U.S. Revolving B Credit Lender or by any trustee or agent acting on behalf of U.S. Agent
or any U.S. Revolving B Credit Lender, and generally, all demands and notices of every kind in connection with this
Guarantee, the Credit Agreement and the other Loan Documents, except as provided herein and
in the Credit Agreement.
(b) Certain Other Waivers. Each Guarantor hereby waives (i) diligence, presentment,
demand for payment, protest or notice, whether of nonpayment, dishonor, protest or
otherwise, (ii) all setoffs, counterclaims and claims of recoupment against the Guarantied
Obligations that may be available to U.K. Borrower or any other guarantor of the Guarantied
Obligations (it being understood that the waivers set forth anywhere in this Guarantee shall
not preclude any action by such Guarantor, after payment in full of its obligations
hereunder, to recover for any tortious action or omission by U.S. Agent or any U.S.
Revolving B Credit Lender which resulted in injury to such Guarantor), (iii) any defense
based upon or in any way related to any claim that any election of remedies by U.S. Agent or
any U.S. Revolving B Credit Lender (or by any trustee or agent acting on behalf of U.S.
Agent or any U.S. Revolving B Credit Lender) impaired, reduced, released or otherwise
extinguished any rights such Guarantor might otherwise have had against U.K. Borrower or any
security, (iv) any claim based upon or in any way related to any of the matters referred to
in Section 2.5, and (v) any claim that this Guarantee should be strictly construed
against U.S. Agent or any U.S. Revolving B Credit Lender.
12.7 Bankruptcy; Other Matters. In the event that, pursuant to any insolvency, bankruptcy,
reorganization, receivership or other debtor relief law, or any judgment, order or decision
thereunder, or for any other reason U.S. Agent or any U.S. Revolving B Credit Lender must rescind
or restore any payment received by U.S. Agent or any U.S. Revolving B Credit Lender in connection
with the Guarantied Obligations, the Credit Agreement or any other Loan Document, or U.K. Borrower
ceases to be liable to U.S. Agent or any U.S. Revolving B Credit Lender in respect of the Credit
Agreement (other than by the full and irrevocable payment in full thereof), then any prior release
or discharge from this Guarantee shall be without effect and this Guarantee and the obligations of
each Guarantor hereunder shall remain in full force and effect.
12.8 Payments by Guarantors. If all or any part of the Guarantied Obligations are not paid
when due, whether at maturity, by reason of acceleration, or otherwise, and remain unpaid until the
expiration of any applicable grace or cure period, or otherwise upon the occurrence and continuance
of any Event of Default, the Guarantors shall, immediately upon demand by U.S. Agent (or any
trustee or agent acting on behalf of U.S. Agent or any U.S. Revolving B Credit Lender), and without
presentment, protest, notice of protest, notice of nonpayment, notice of intention to accelerate or
acceleration or any other notice whatsoever, pay in immediately available funds, the amount due on
the Guarantied Obligations to U.S. Agent for distribution to U.S. Revolving B Credit Lenders. All
obligations of the Guarantors under this Guarantee shall be performable and payable to U.S. Agent
at its office at the address for notices provided for in the Credit Agreement. All payments
hereunder shall be made without any counterclaim or setoff, free and clear of, and without
reduction by reason of, any Indemnified Taxes which are now or may hereafter be imposed, levied or
assessed by any country, political subdivision or taxing authority, all of which will be for the
account of and paid by the Guarantors. If for any reason, any such reduction is made or any
Indemnified Taxes are paid by U.S. Agent or U.S. Revolving B Credit Lenders, Guarantors will pay to
U.S. Agent or such U.S. Revolving B Credit Lender such additional amounts as may be necessary to
ensure that such Person receives the same net amount which it would have received had no reduction
been made or Indemnified Taxes paid.
12.9 Failure to Pay Guarantied Obligations. If any Guarantor fails to pay the Guarantied
Obligations as required by this Guarantee, then each of the Guarantors, as the principal obligor
and not as a guarantor only, shall jointly and severally pay, on demand, all reasonable out-of-pocket
costs and expenses incurred or expended by U.S. Agent and U.S. Revolving B Credit Lenders (and any
trustee or agent acting on behalf of U.S. Agent and/or any U.S. Revolving B Credit Lender) in
connection with the enforcement of, and the preservation of U.S. Agent’s and U.S. Revolving B
Credit Lenders’ rights under and with respect to, this Guarantee, including, but not limited to,
all reasonable attorneys’ fees and
expenses (whether or not there is litigation), court costs and
all costs incurred in connection with any proceedings under any Debtor Relief Laws,
provided that the Guarantors shall not be liable for the reasonable fees and expenses of
more than one separate firm of attorneys representing U.S. Agent (plus any special or local counsel
retained by such firm). Until paid, all such amounts recoverable under this Section 2.9
shall bear interest from the time when such amounts become due until payment in full thereof at the
Default Rate for Base Rate Loans.
12.10 Subordination of Affiliate Obligations. Each of the Guarantors agrees that all
Affiliate Obligations (as defined below), interest thereon, and all other amounts due with respect
thereto, are hereby subordinated as to time of payment and in all other respects to all the
Guarantied Obligations. Each Guarantor agrees that at all times during the existence of an Event
of Default, such Guarantor shall not be entitled to enforce or receive any payment in respect
thereof until all sums then due and owing to U.S. Agent and/or U.S. Revolving B Credit Lenders in
respect of the Guarantied Obligations shall have been paid in full. If any payment shall have been
made to any Guarantor by U.K. Borrower or such indebted Person on any such Affiliate Obligation
during any time that an Event of Default exists and there are Guarantied Obligations outstanding,
such Guarantor shall collect and receive all such payments as trustee for U.S. Agent and U.S.
Revolving B Credit Lenders, to the extent of all amounts owing with respect to this Guarantee, and
such amounts shall be immediately paid over to U.S. Agent (or any trustee or agent acting on behalf
of U.S. Agent and/or U.S. Revolving B Credit Lenders), without affecting in any manner the
liability of the Guarantors under the other provisions of this Guarantee. For purposes of this
Section 2.10, “Affiliate Obligation” means any indebtedness of any kind of U.K. Borrower,
or any Person obligated in respect of the Guarantied Obligations, to the Guarantors.
12.11 Postponement of Subrogation Rights. No Guarantor will exercise any Subrogation Rights
(as defined below) which it may acquire with respect to this Guarantee until the prior and
indefeasible payment, in full and in cash, of all Guarantied Obligations. Any amount paid to a
Guarantor by or on behalf of U.K. Borrower or any other guarantor of the Guarantied Obligations on
account of any such Subrogation Rights prior to the payment in full of all Guarantied Obligations
shall immediately be paid over to U.S. Agent for the ratable benefit of U.S. Revolving B Credit
Lenders and credited and applied against the Guarantied Obligations whether matured or unmatured,
in accordance with the terms of the Credit Agreement. In furtherance of the foregoing, for so long
as any Guarantied Obligations remain outstanding, (i) no Guarantor shall take any action or
commence any proceeding against U.K. Borrower or any other guarantor of the Guarantied Obligations
(or any of their respective successors or assigns, whether in connection with a bankruptcy
proceeding or otherwise), to recover any amounts in the respect of payments made under this
Guarantee to U.S. Agent and/or U.S. Revolving B Credit Lenders, and (ii) each Guarantor hereby
forbears realizing any benefit of and exercising any right to participate in any security which may
be held by U.S. Agent or U.S. Revolving B Credit Lender or any agent or trustee acting on behalf of
U.S. Agent and/or U.S. Revolving B Credit Lenders. For purposes of this Section 2.11,
“Subrogation Right” means any right of contribution, subrogation, reimbursement, indemnity, or
repayment, and any other “claim”, as that term is defined in the United States Bankruptcy Code (or
other applicable law), which any Guarantor might now have or hereafter acquire against U.K.
Borrower or any other guarantor of the Guarantied Obligations that arises from the existence or
performance of such Guarantor’s obligations under this Guarantee, and any right to participate in
any security for the Guarantied Obligations.
12.12 Limitation on Guarantied Obligations. Notwithstanding anything in Section 2.1
or elsewhere in this Guarantee or any other Loan Document to the contrary, the obligations of the
Guarantors under this Guarantee shall at each point in time be limited to an aggregate amount equal
to the greatest amount that would not result in such obligations being subject to avoidance, or
otherwise result in such obligations being unenforceable, at such time under applicable law
(including, without limitation, to
the extent, and only to the extent, applicable to the
Guarantors, Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx Bankruptcy Code and any comparable provisions of the
law of any other jurisdiction, any capital preservation law of any jurisdiction and any other law
of any jurisdiction that at such time limits the enforceability of the obligations of the
Guarantors under this Guarantee). This Section 2.12 is intended solely to preserve the
rights of U.S. Agent and U.S. Revolving B Credit Lenders hereunder to the maximum extent permitted
by applicable law, and neither the Guarantors nor any other Person shall have any rights under this
Section 2.12 that it would not otherwise have under applicable law.
12.13 Other Enforcement Rights. U.S. Agent and U.S. Revolving B Credit Lenders may proceed to
protect and enforce this Guarantee by suit or proceedings in equity, at law or in bankruptcy, and
whether for the specific performance of any covenant or agreement contained herein or in execution
or aid of any power herein granted or for the recovery of judgment for the obligations hereby
guaranteed or for the enforcement of any other proper legal or equitable remedy available under
applicable law.
12.14 U.K. Guarantee Limitations. In relation to a U.K. Subsidiary Guarantor, this Guarantee
does not apply to any liability to the extent that it would result in this Guarantee constituting
unlawful financial assistance within the meaning of Section 151 of the Companies Xxx 0000.
13. REPRESENTATIONS AND WARRANTIES.
Each Guarantor hereby represents and warrants to U.S. Agent and U.S. Revolving B Credit
Lenders that:
13.1 Organization and Existence. The Guarantor is duly organized and existing in good
standing under the laws of its jurisdiction of organization, is duly qualified to do business and
is in good standing where the nature or extent of its businesses or properties requires it to be
qualified to do business except where the failure to so qualify will not have a material adverse
effect on the business, operations, profits, financial condition, properties or business prospects
of such Guarantor or on its ability to perform its obligations hereunder and under the other Loan
Documents. The Guarantor has the power and authority to own its properties and carry on its
business as now being conducted.
13.2 Authorization. The Guarantor is duly authorized to execute and perform this Guarantee
and this Guarantee has been properly authorized by all requisite action of such Guarantor. No
consent, approval or authorization of, or declaration or filing with, any Governmental Authority or
any other Person, is required in connection with the execution, delivery or performance of this
Guarantee, except for those already duly obtained.
13.3 Due Execution. This Guarantee has been executed on behalf of such Guarantor by a Person
duly authorized to do so.
13.4 Enforceability. This Guarantee constitutes the legal, valid and binding obligation of
the Guarantor, enforceable against such Guarantor in accordance with its terms, except to the
extent that the enforceability thereof against such Guarantor may be limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting creditor’s rights generally or by equitable principles of
general application (regardless of whether such enforceability is considered in a proceeding in
equity or at law).
13.5 Legal Restraints. The execution of this Guarantee by the Guarantor and the performance
by such Guarantor of its obligations under this Guarantee, will not (i) violate or constitute a
default under the certificate or articles of incorporation, bylaws or other organizational
documents of such Guarantor as applicable, (ii) except as contemplated by the U.S. Security
Documents, the U.K. Security
Documents and the granting of Liens to secure Other Senior Debt,
result in any Lien being imposed on any of such Guarantor’s property, or (iii) violate or
constitute a default under any agreement to which the Guarantor is a party or any law, ordinance,
governmental rule or regulation to which it is subject, except where such violation or default
could not reasonably be expected to have a material adverse effect on the business, operations,
profits, financial condition, properties or business prospects of such Guarantor or on its ability
to perform its obligations hereunder and under the other Loan Documents.
13.6 No Material Proceedings. There are no proceedings, actions or investigations pending or,
to the knowledge of the Guarantor, threatened against such Guarantor that, in the aggregate for all
such proceedings, actions and investigations, could reasonably be expected to have a material
adverse effect on the business, operations, profits, financial condition, properties or business
prospects of such Guarantor or on its ability to perform its obligations hereunder and under the
other Loan Documents.
13.7 Compliance with Laws. The Guarantor is in compliance with all laws, ordinances,
governmental rules and regulations to which it is subject, except for such failures to comply that,
in the aggregate for all such failures, could not reasonably be expected to have a material adverse
effect on the business, operations, profits, financial condition, properties or business prospects
of such Guarantor or on its ability to perform its obligations hereunder and under the other Loan
Documents.
13.8 No Defaults. The Guarantor has not breached or violated, or is not in default under, any
agreement to which it is a party, and is not in default with respect to any of its obligations,
except for such breaches, violations and defaults that, in the aggregate for all such breaches,
violations and defaults, could not reasonably be expected to have a material adverse effect on the
business, operations, profits, financial condition, properties or business prospects of such
Guarantor or on its ability to perform its obligations hereunder and under the other Loan
Documents.
13.9 Independent Credit Evaluation. Each Guarantor has independently, and without reliance on
any information supplied by U.S. Agent or any U.S. Revolving B Credit Lender, taken, and will
continue to take, whatever steps such Guarantor deems necessary to evaluate the financial condition
and affairs of U.K. Borrower, and neither U.S. Agent nor any U.S. Revolving B Credit Lender shall
have any duty to advise such Guarantor of information at any time known to U.S. Agent or any U.S.
Revolving B Credit Lender regarding such financial condition or affairs.
13.10 No Representation By Agent. Neither U.S. Agent, any U.S. Revolving B Credit Lender nor
any trustee or agent acting on its behalf has made any representation, warranty or statement to any
Guarantor to induce such Guarantor to execute this Guarantee.
13.11 Survival. All representations and warranties made by the Guarantors herein shall
survive the execution hereof and may be relied upon by U.S. Agent and U.S. Revolving B Credit
Lenders as being true and accurate until the Guarantied Obligations are fully and irrevocably paid.
14. COVENANTS.
14.1 Corporate Existence; Scope of Business; Compliance with Law; Preservation of
Enforceability. Each Guarantor covenants that from the date hereof and until the Guarantied
Obligations are fully and irrevocably paid, such Guarantor shall
(a) preserve and maintain its existence in good standing and its right to transact
business in those states in which it is now or hereafter doing business and obtain and
maintain all licenses, except where the failure to obtain and maintain such licenses that,
in the aggregate for
all such failures, could not reasonably be expected to have a material
adverse effect on the business, operations, profits, financial condition, properties or
business prospects of such Guarantor or on its ability to perform its obligations hereunder
and under the other Loan Documents;
(b) comply, with all applicable laws, ordinances, governmental rules and regulations to
which it is subject, except where such failure to comply could not reasonably be expected to
have a material adverse effect on the business, operations, profits, financial condition,
properties or business prospects of such Guarantor; or on its ability to perform its
obligations hereunder and under the other Loan Documents; and
(c) take all action and obtain all consents and governmental approvals required so that
its obligations under this Guarantee will at all times be legal, valid and binding and
enforceable in accordance with the terms hereof.
14.2 Financial assistance in relation to U.K. Subsidiary Guarantors. A U.K. Subsidiary
Guarantor shall provide evidence of compliance with the procedures set out in Sections 155-158 of
the Companies Xxx 0000 for permitting the financial assistance constituted by this Guarantee.
15. ADDITIONAL GUARANTORS.
In accordance with Section 6.12 of the Credit Agreement, additional Persons may from time to time
after the date of this Guarantee become Guarantors under this Guarantee by executing and delivering
to U.S. Agent a joinder agreement (a “Joinder Agreement”) to this Guarantee in
substantially the form attached as Exhibit A to this Guarantee. Effective from and after
the date of the execution and delivery by any Person to U.S. Agent of a Joinder Agreement, such
Person shall be, and shall be deemed for all purposes to be, a Guarantor under this Guarantee with
the same force and effect, and subject to the same agreements, representations, guarantees,
indemnities, liabilities and obligations, as if such Person were, effective as of such date, an
original signatory to this Guarantee as a Guarantor. The execution and delivery of a Joinder
Agreement by any Person shall not require the consent of any other Guarantor and all of the
Guarantied Obligations of each Guarantor under this Guarantee shall remain in force and effect
notwithstanding the addition of any additional Guarantor to this Guarantee.
16. SUCCESSORS AND ASSIGNS.
This Guarantee shall bind the successors, assignees, trustees, and administrators of each
Guarantor and shall inure to the benefit of U.S. Agent, each U.S. Revolving B Credit Lender, and
their respective successors, transferees, participants and assignees.
17. CONTINUANCE OF GUARANTEE.
Each Guarantor is liable under this Guarantee for the full amount of the Guarantied
Obligations. U.S. Agent may release, settle with or compromise with any one or more Persons who
are otherwise liable for the payment or performance of all or portions of the Guarantied
Obligations without impairing, diminishing or releasing any rights of U.S. Agent or U.S. Revolving
B Credit Lenders hereunder against any Guarantor or any other Person liable for the Guarantied
Obligations. This Guarantee shall continue in full force and effect and shall bind each Guarantor
notwithstanding the death or release of any other Person who is otherwise liable for the payment or
performance of all or any portion of the Guarantied Obligations.
18. AMENDMENTS AND WAIVERS.
No amendment to, waiver of, or departure from full compliance with any provision of this
Guarantee, or consent to any departure by any Guarantor herefrom, shall be effective unless it is
in writing and signed by authorized officers of each Guarantor directly affected thereby and U.S.
Agent; provided, however, that any such waiver or consent shall be effective only in the specific
instance and for the purpose for which given. No failure by U.S. Agent to exercise, and no delay
by U.S. Agent in exercising, any right, remedy, power or privilege hereunder shall operate as a
waiver thereof, nor shall any single or partial exercise by U.S. Agent of any right, remedy, power
or privilege hereunder preclude any other exercise thereof, or the exercise of any other right,
remedy, power or privilege.
19. RIGHTS CUMULATIVE.
Each of the rights and remedies of U.S. Agent and U.S. Revolving B Credit Lenders under this
Guarantee shall be in addition to all of their other rights and remedies under applicable law, and
nothing in this Guarantee shall be construed as limiting any such rights or remedies.
20. SERVICE OF PROCESS.
EACH GUARANTOR HEREBY WAIVES PERSONAL SERVICE OF ANY AND ALL PROCESS UPON IT AND CONSENTS THAT
ALL SUCH SERVICE OF PROCESS MAY BE MADE BY REGISTERED MAIL (RETURN RECEIPT REQUESTED) DIRECTED TO
IT AT ITS ADDRESS SET FORTH IN ANNEX 1 HERETO. SERVICE SO MADE SHALL BE DEEMED TO BE
COMPLETED AS OF THE DATE THAT SUCH GUARANTOR SIGNS THE RETURN RECEIPT. NOTHING IN THIS SECTION
SHALL AFFECT THE RIGHT OF U.S. AGENT OR ANY U.S. REVOLVING B CREDIT LENDER TO SERVE LEGAL PROCESS
IN ANY OTHER MANNER PERMITTED BY LAW. EACH GUARANTOR THAT IS A FOREIGN SUBSIDIARY HEREBY APPOINTS
U.S. BORROWER AS ITS AGENT TO RECEIVE ON BEHALF OF IT AND ITS PROPERTY SERVICE OF COPIES OF THE
SUMMONS AND COMPLAINT AND ANY OTHER PROCESS WHICH MAY BE SERVED UPON SUCH GUARANTOR IN THE UNITED
STATES IN CONNECTION WITH ANY LEGAL PROCEEDINGS IN THE COURTS OF THE STATE OF ILLINOIS OR THE
UNITED STATES.
21. WAIVER OF JURY TRIAL.
EACH GUARANTOR HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES THE RIGHT TO A TRIAL BY
JURY IN RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH
THIS GUARANTEE. SEVERABILITY.
22. SEVERABILITY.
Any provision of this Guarantee which is prohibited, unenforceable or not authorized in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition,
unenforceability or nonauthorization without invalidating the remaining provisions hereof or
affecting the validity, enforceability or legality of such provision in any other jurisdiction
unless the ineffectiveness of such provision would result in such a material change as to cause
completion of the transactions contemplated hereby to be unreasonable.
23. GOVERNING LAW.
THIS GUARANTEE SHALL BE GOVERNED BY, AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE
INTERNAL LAWS OF THE STATE OF ILLINOIS.
24. SECTION HEADINGS.
Section headings are for convenience only and shall not affect the interpretation of this
Guarantee.
25. LIMITATION OF LIABILITY.
NEITHER U.S. AGENT NOR ANY U.S. REVOLVING B CREDIT LENDER SHALL HAVE ANY LIABILITY WITH
RESPECT TO, AND EACH OF THE GUARANTORS HEREBY WAIVES, RELEASES AND AGREES NOT TO XXX FOR, (a) ANY
LOSS OR DAMAGE SUSTAINED BY ANY GUARANTOR THAT MAY OCCUR AS A RESULT OF, IN CONNECTION WITH, OR
THAT IS IN ANY WAY RELATED TO, ANY ACT OR FAILURE TO ACT REFERRED TO IN SECTION 2.5 OR (b) ANY
SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES SUFFERED BY ANY GUARANTOR IN CONNECTION WITH ANY CLAIM
RELATED TO THIS GUARANTEE.
26. ENTIRE AGREEMENT.
This Guarantee embodies the entire agreement among Guarantors, U.S. Agent and U.S. Revolving B
Credit Lenders relating to the subject matter hereof and supersedes all prior agreements,
representations and understandings, if any, relating to the subject matter hereof.
27. COMMUNICATIONS.
All notices and other communications to U.S. Agent and U.S. Revolving B Credit Lenders or
Guarantors hereunder shall be in writing, shall be delivered in the manner and with the effect, as
provided by the Credit Agreement, and shall be addressed to the Guarantors as set forth in
Annex 1 hereto and to U.S. Agent and U.S. Revolving B Credit Lenders as set forth in the
Credit Agreement.
28. DUPLICATE ORIGINALS.
Two or more duplicate counterpart originals hereof may be signed by the parties, each of which
shall be an original but all of which together shall constitute one and the same instrument.
Delivery of any executed signature page to this Guarantee by any Guarantor by facsimile
transmission shall be as effective as delivery of a manually executed copy of this Guarantee by
such Guarantor.
29. NOTICES.
Nothing in this Guarantee shall void or abrogate any obligation of U.K. Borrower, any
Guarantor or U.S. Agent to give any notice specifically required to be given by such Person in any
provision of any Loan Document.
30. TERMINATION.
Subject to Section 2.7, this Guarantee shall terminate and have no further force or
effect upon payment in full of the Guarantied Obligations and the termination of the Credit
Agreement.
[Remainder of page intentionally left blank. Next page is signature page.]
IN WITNESS WHEREOF, each Guarantor has caused this Guarantee to be duly executed and delivered
by its officer thereunto duly authorized as of the date first above written.
| A.M. CASTLE & CO. | ||||||
| By: | /s/ Xxxxxxx X. Xxxxxxxx | |||||
| Name: Title: |
President and Chief Executive Officer |
|||||
| KEYSTONE TUBE COMPANY, LLC | ||||||
| By: | /s/ Xxxxxxxx X. Xxxx | |||||
| Name: | ||||||
| Title: | Vice President | |||||
| TOTAL PLASTICS, INC. | ||||||
| By: | /s/ Xxxxxxxx X. Xxxx | |||||
| Name: | ||||||
| Title: | Vice President | |||||
| PARAMONT MACHINE COMPANY, LLC | ||||||
| By: | /s/ Xxxxxxxx X. Xxxx | |||||
| Name: | ||||||
| Title: | Vice President | |||||
| ADVANCED FABRICATING TECHNOLOGY, LLC | ||||||
| By: | /s/ Xxxxxxxx X. Xxxx | |||||
| Name: | ||||||
| Title: | Vice President | |||||
| XXXXXX STEEL PLATE CO. | ||||||
| By: | /s/ Xxxxxxxx X. Xxxx | |||||
| Name: | ||||||
| Title: | Treasurer | |||||
| DATAMET, INC. | ||||||
| By: | /s/ Xxxxxxxx X. Xxxx | |||||
| Name: | ||||||
| Title: | Vice President, Treasurer and Assistant Secretary | |||||
| TRANSTAR INVENTORY CORP. | ||||||
| By: | /s/ Xxxxxxxx X. Xxxx | |||||
| Name: | ||||||
| Title: | Vice President | |||||
| TRANSTAR METALS CORP. | ||||||
| By: | /s/ Xxxxxxxx X. Xxxx | |||||
| Name: | ||||||
| Title: | Vice President | |||||
| TRANSTAR MARINE CORP. | ||||||
| By: | /s/ Xxxxxxxx X. Xxxx | |||||
| Name: | ||||||
| Title: | Vice President | |||||
ANNEX 1
ADDRESSES OF GUARANTORS
| Jurisdiction of | ||||
| Guarantor | Organization | Address | ||
A.M. Castle & Co.
|
Maryland | A.M. Castle & Co. 0000 Xxxxx Xxxx Xxxx Xxxxxxxx Xxxx, Xxxxxxxx 00000 |
||
Datamet, Inc.
|
Illinois | Datamet, Inc. 0000 Xxxxx Xxxx Xxxx Xxxxxxxx Xxxx, XX 00000 |
||
Keystone Tube Company, LLC
|
Delaware | Keystone Tube Company, LLC 00000 Xxxxx Xxxxxxx Xxxxxx Xxxxxxxxx, XX 00000 |
||
Total Plastics, Inc.
|
Michigan | Total Plastics, Inc. 0000 Xxxxx Xxxxxxx Xxxxxx Xxxxxxxxx, XX 00000 |
||
Paramont Machine Company, LLC
|
Delaware | Paramont Machine Company, LLC 000 Xxxxxxxxxx Xxxxxx XX Xxx Xxxxxxxxxxxx, XX 00000 |
||
Advanced Fabricating
Technology, LLC
|
Delaware | Advanced Fabricating Technology, LLC 000 Xxxxx Xxxxxxxxxx Xxxxx Xxxxxxxx, XX 00000 |
||
Xxxxxx Steel Plate Co.
|
Delaware | Xxxxxx Steel Plate Co. 0000 Xxxxxxx Xxxxx Xxxxxxxxx, XX 00000 |
||
Transtar Inventory Corp.
|
Delaware | Transtar Inventory Corp. 000 Xxxx 000xx Xxxxxx, Xxxxx 000 Xxxxxxxx, XX 00000 |
||
Transtar Metals Corp.
|
Delaware | Transtar Metals Corp. 000 Xxxx 000xx Xxxxxx, Xxxxx 000 Xxxxxxxx, XX 00000 |
||
Transtar Marine Corp.
|
Delaware | Transtar Marine Corp. 000 Xxxx 000xx Xxxxxx, Xxxxx 000 Xxxxxxxx, XX 00000 |
EXHIBIT A
[FORM OF JOINDER AGREEMENT]
JOINDER AGREEMENT NO. ___ TO GUARANTEE AGREEMENT
Re: A. M. CASTLE & CO.
This Joinder Agreement is made as of ___, in favor of U.S. Agent and U.S.
Revolving B Credit Lenders (as such terms are defined in the U.K. Guaranty, as hereinafter
defined).
A. Reference is made to the U.K. Guarantee Agreement made as of January 2, 2008 (as such Guarantee
may be supplemented, amended, restated or consolidated from time to time, the “U.K.
Guarantee”) by certain Persons in favor of U.S. Agent and U.S. Revolving B Credit Lenders (as
defined in the U.K. Guarantee), under which such Persons have guaranteed to U.S. Agent and U.S.
Revolving B Credit Lenders the due payment and performance by A.M. Castle Metals UK, Limited
(“U.K. Borrower”) of all its present and future indebtedness, liabilities and obligations
to U.S. Agent and U.S. Revolving B Credit Lenders in connection with the Loan Documents.
B. Capitalized terms used but not otherwise defined in this Joinder Agreement have the respective
meanings given to such terms in the U.K. Guarantee, including the definitions of terms incorporated
in the U.K. Guarantee by reference to other agreements.
C. Section 5 of the U.K. Guarantee provides that additional Persons may from time to time after the
date of the U.K. Guarantee become Guarantors under the U.K. Guarantee by executing and delivering
to U.S. Agent a supplemental agreement to the U.K. Guarantee in the form of this Joinder Agreement.
For valuable consideration, the undersigned (“New Guarantor”) agrees as follows:
1. New Guarantor has received a copy of, and has reviewed, the U.K. Guarantee and the Loan
Documents in existence on the date of this Joinder Agreement and is executing and delivering this
Joinder Agreement to U.S. Agent pursuant to Section 5 of the U.K. Guarantee.
2. Effective from and after the date this Joinder Agreement is executed and delivered to U.S.
Agent by New Guarantor (and irrespective of whether this Joinder Agreement has been executed and
delivered by any other Person), New Guarantor is, and shall be deemed for all purposes to be, a
Guarantor under the U.K. Guarantee with the same force and effect, and subject to the same
agreements, representations, guarantees, indemnities, liabilities and obligations, as if New
Guarantor was, effective as of the date of this Joinder Agreement, an original signatory to the
U.K. Guarantee as a Guarantor. In furtherance of the foregoing, New Guarantor jointly and
severally guarantees to U.S. Agent and U.S. Revolving B Credit Lenders in accordance with the
provisions of the U.K. Guarantee the due and punctual payment and performance in full of each of
the Guarantied Obligations as each such Guarantied Obligation becomes due from time to time
(whether because of maturity, default, demand, acceleration or otherwise) and understands, agrees
and confirms that U.S. Agent and U.S. Revolving B Credit Lenders may enforce the U.K. Guarantee and
this Joinder Agreement against New Guarantor for the benefit of U.S. Agent and U.S. Revolving B
Credit Lenders up to the full amount of the Guarantied Obligations without proceeding against any
other Guarantor, U.K. Borrower, any other Person or any collateral
securing the Guarantied Obligations. The terms and provisions of the U.K. Guarantee are
incorporated by reference in this Joinder Agreement.
3. Upon this Joinder Agreement bearing the signature of any Person claiming to have authority
to bind New Guarantor coming into the hands of U.S. Agent or any U.S. Revolving B Credit Lender,
and irrespective of whether this Joinder Agreement or the U.K. Guarantee has been executed by any
other Person, this Joinder Agreement will be deemed to be finally and irrevocably executed and
delivered by, and be effective and binding on, and enforceable against, New Guarantor free from any
promise or condition affecting or limiting the liabilities of New Guarantor and New Guarantor shall
be, and shall be deemed for all purposes to be, a Guarantor under the U.K. Guarantee. No
statement, representation, agreement or promise by any officer, employee or agent of U.S. Agent or
U.S. Revolving B Credit Lenders, forms any part of this Joinder Agreement or the U.K. Guarantee or
has induced the making of this Joinder Agreement or the U.K. Guarantee by New Guarantor or in any
way affects any of the obligations or liabilities of New Guarantor in respect of the Guarantied
Obligations.
4. This Joinder Agreement may be executed in counterparts. Each executed counterpart shall be
deemed to be an original and all counterparts taken together shall constitute one and the same
Joinder Agreement. Delivery of an executed signature page to this Joinder Agreement by New
Guarantor by facsimile transmission shall be as effective as delivery of a manually executed copy
of this Joinder Agreement by New Guarantor.
5. This Joinder Agreement is a contract made under, and will for all purposes be governed by
and interpreted and enforced according to, the internal laws of the State of Illinois excluding any
conflict of laws rule or principle which might refer these matters to the laws of another
jurisdiction.
6. This Joinder Agreement and the U.K. Guarantee shall be binding upon New Guarantor and the
successors of New Guarantor. New Guarantor may not assign any of its obligations or liabilities in
respect of the Guarantied Obligations.
IN WITNESS OF WHICH this Joinder Agreement has been duly executed and delivered by New
Guarantor as of the date indicated on the first page of this Joinder Agreement.
[NEW GUARANTOR]
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
