Exhibit 10.2
Execution Version
GUARANTY
GUARANTY, dated as of May 1, 2006 (this "Guaranty"), by each of the
entities listed on the signature pages hereof or that becomes a party hereto
pursuant to Section 24 (Additional Guarantors) hereof (each a "Subsidiary
Guarantor" and individually a "Guarantor"), in favor of the Administrative
Agent, each Lender, each Issuer and each other holder of an Obligation (as each
such term is defined in the Credit Agreement referred to below) (each, a
"Guarantied Party" and, collectively, the "Guarantied Parties").
WITNESSETH:
WHEREAS, pursuant to the Credit Agreement dated as of May __, 2006
(together with all appendices, exhibits and schedules thereto and as the same
may be amended, restated, supplemented or otherwise modified from time to time,
the "Credit Agreement"; capitalized terms used herein but not otherwise defined
herein shall have the meanings provided to them in the Credit Agreement) among
WCI Steel Acquisition, Inc. (the "Borrower"), the Lenders and Issuers party
thereto and Citicorp USA, Inc., as agent for the Lenders and Issuers (in such
capacity, the "Administrative Agent"), the Lenders and Issuers have severally
agreed to make extensions of credit to the Borrower upon the terms and subject
to the conditions set forth therein;
WHEREAS, each Guarantor is a direct or indirect Subsidiary of the
Borrower;
WHEREAS, each Guarantor will receive substantial direct and indirect
benefits from the making of the Loans, the issuance of the Letters of Credit and
the granting of the other financial accommodations to the Borrower under the
Credit Agreement; and
WHEREAS, a condition precedent to the obligation of the Lenders and
the Issuers to make their respective extensions of credit to the Borrower under
the Credit Agreement is that the Guarantors shall have executed and delivered
this Guaranty for the benefit of the Guarantied Parties.
NOW, THEREFORE, in consideration of the premises set forth above, the
terms and conditions contained herein, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto hereby agree as follows:
SECTION 1 GUARANTY
(a) To induce the Lenders to make the Loans and the Issuers to issue
Letters of Credit, each Guarantor hereby absolutely, unconditionally and
irrevocably guarantees, jointly with the other Guarantors and severally, as a
primary obligor and not merely as a surety, the full and punctual payment when
due and in the currency due, whether at stated maturity or earlier, by reason of
acceleration, mandatory prepayment or otherwise in accordance herewith or any
other Loan Document, of all the Obligations, whether or not from time to time
reduced or extinguished or hereafter increased or incurred, whether or not
recovery may be or hereafter may become barred by any statute of limitations,
whether or not enforceable as against the Borrower, whether now or hereafter
existing, and whether due or to become due, including principal, interest
(including interest at the contract rate applicable upon default accrued or
accruing after the commencement of any proceeding under the Bankruptcy Code, or
any applicable provisions of comparable state or foreign law, whether or not
such interest is an allowed claim in such
proceeding), reasonable fees and costs of collection. This Guaranty constitutes
a guaranty of payment and not of collection.
(b) Each Guarantor further agrees that, if (i) any payment made by
Borrower or any other Person and applied to the Obligations is at any time
annulled, avoided, set aside, rescinded, invalidated, declared to be fraudulent
or preferential or otherwise required to be refunded or repaid, or (ii) the
proceeds of Collateral are required to be returned by any Guarantied Party to
the Borrower, its estate, trustee, receiver or any other party, including any
Guarantor, under any bankruptcy law, equitable cause or any other Requirement of
Law, then, to the extent of such payment or repayment, any such Guarantor's
liability hereunder (and any Lien or other Collateral securing such liability)
shall be and remain in full force and effect, as fully as if such payment had
never been made. If, prior to any of the foregoing, this Guaranty shall have
been cancelled or surrendered (and if any Lien or other Collateral securing such
Guarantor's liability hereunder shall have been released or terminated by virtue
of such cancellation or surrender), this Guaranty (and such Lien or other
Collateral) shall be reinstated in full force and effect, and such prior
cancellation or surrender shall not diminish, release, discharge, impair or
otherwise affect the obligations of any such Guarantor in respect of the amount
of such payment (or any Lien or other Collateral securing such obligation).
SECTION 2 LIMITATION OF GUARANTY
Any term or provision of this Guaranty or any other Loan Document to
the contrary notwithstanding, the maximum aggregate amount of the Obligations
for which any Subsidiary Guarantor shall be liable shall not exceed the maximum
amount for which such Subsidiary Guarantor can be liable without rendering such
Subsidiary Guarantor's obligations under this Guaranty or any other Loan
Document, as it relates to such Subsidiary Guarantor, subject to avoidance under
applicable law relating to fraudulent conveyance or fraudulent transfer
(including Section 548 of the Bankruptcy Code or any applicable provisions of
comparable state law) (collectively, "Fraudulent Transfer Laws"), in each case
after giving effect (a) to all other liabilities of such Subsidiary Guarantor,
contingent or otherwise, that are relevant under such Fraudulent Transfer Laws
(specifically excluding, however, any liabilities of such Subsidiary Guarantor
in respect of intercompany Indebtedness to the Borrower to the extent that such
Indebtedness would be discharged in an amount equal to the amount paid by such
Subsidiary Guarantor hereunder) and (b) to the value as assets of such
Subsidiary Guarantor (as determined under the applicable provisions of such
Fraudulent Transfer Laws) of any rights to subrogation, contribution,
reimbursement, indemnity or similar rights held by such Subsidiary Guarantor
pursuant to (i) applicable Requirements of Law, (ii) Section 3 (Contribution) of
this Guaranty or (iii) any other Contractual Obligations providing for an
equitable allocation among such Subsidiary Guarantor and other Subsidiaries or
Affiliates of the Borrower of obligations arising under this Guaranty or other
guaranties of the Obligations by such parties.
SECTION 3 CONTRIBUTION
To the extent that any Subsidiary Guarantor shall be required
hereunder to pay a portion of the Obligations exceeding the greater of (a) the
amount of the economic benefit actually received by such Subsidiary Guarantor
from the Revolving Loans and the other financial accommodations provided to the
Borrower under the Loan Documents and (b) the amount such Subsidiary Guarantor
would otherwise have paid if such Subsidiary Guarantor had paid the aggregate
amount of the Obligations (excluding the amount thereof repaid by the Borrower
and the Borrower) in the same proportion as such Subsidiary Guarantor's net
worth at the date enforcement is sought hereunder bears to the aggregate net
worth of all the Subsidiary Guarantors at the date
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enforcement is sought hereunder, then such Guarantor shall be reimbursed by such
other Subsidiary Guarantors for the amount of such excess, pro rata, based on
the respective net worths of such other Subsidiary Guarantors at the date
enforcement hereunder is sought.
SECTION 4 AUTHORIZATION; OTHER AGREEMENTS
The Guarantied Parties are hereby authorized, without notice to, or
demand upon, any Guarantor, which notice and demand requirements each are
expressly waived hereby, and without discharging or otherwise affecting the
obligations of such Guarantor hereunder (which obligations shall remain absolute
and unconditional notwithstanding any such action or omission to act), from time
to time, to do each of the following:
(a) supplement, renew, extend, accelerate or otherwise change the time
for payment of, or other terms relating to, the Obligations, or any part of
them, or otherwise modify, amend or change the terms of any promissory note or
other agreement, document or instrument (including the other Loan Documents) now
or hereafter executed by the Borrower and delivered to the Guarantied Parties or
any of them, including any increase or decrease of principal or the rate of
interest thereon;
(b) waive or otherwise consent to noncompliance with any provision of
any instrument evidencing the Obligations, or any part thereof, or any other
instrument or agreement in respect of the Obligations (including the other Loan
Documents) now or hereafter executed by the Borrower and delivered to the
Guarantied Parties or any of them;
(c) accept partial payments on the Obligations;
(d) receive, take and hold additional security or collateral for the
payment of the Obligations or any part of them and exchange, enforce, waive,
substitute, liquidate, terminate, abandon, fail to perfect, subordinate,
transfer, otherwise alter and release any such additional security or
collateral;
(e) settle, release, compromise, collect or otherwise liquidate the
Obligations or accept, substitute, release, exchange or otherwise alter, affect
or impair any security or collateral for the Obligations or any part of them or
any other guaranty therefor, in any manner;
(f) add, release or substitute any one or more other guarantors,
makers or endorsers of the Obligations or any part of them and otherwise deal
with the Borrower or any other guarantor, maker or endorser;
(g) apply to the Obligations any payment or recovery (x) from the
Borrower, from any other guarantor, maker or endorser of the Obligations or any
part of them or (y) from any Guarantor in such order as provided herein, in each
case whether such Obligations are secured or unsecured or guaranteed or not
guaranteed by others;
(h) apply to the Obligations any payment or recovery from any
Guarantor of the Obligations or any sum realized from security furnished by such
Guarantor upon its indebtedness or obligations to the Guarantied Parties or any
of them; and
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(i) refund at any time any payment received by any Guarantied Party in
respect of any Obligation, and payment to such Guarantied Party of the amount so
refunded shall be fully guaranteed hereby even though prior thereto this
Guaranty shall have been cancelled or surrendered (or any release or termination
of any Collateral by virtue thereof), and such prior cancellation or surrender
shall not diminish, release, discharge, impair or otherwise affect the
obligations of any Guarantor hereunder in respect of the amount so refunded (and
any Collateral so released or terminated shall be reinstated with respect to
such obligations);
even if any right of reimbursement or subrogation or other right or remedy of
any Guarantor is extinguished, affected or impaired by any of the foregoing
(including any election of remedies by reason of any judicial, non-judicial or
other proceeding in respect of the Obligations that impairs any subrogation,
reimbursement or other right of such Guarantor).
SECTION 5 GUARANTY ABSOLUTE AND UNCONDITIONAL
Each Guarantor hereby waives any defense of a surety or guarantor or
any other obligor on any obligations arising in connection with or in respect of
any of the following and hereby agrees that its obligations under this Guaranty
are absolute and unconditional and shall not be discharged or otherwise affected
as a result of any of the following:
(a) the invalidity or unenforceability of any of the Borrower's
obligations under the Credit Agreement or any other Loan Document or any other
agreement or instrument relating thereto, or any security for, or other guaranty
of the Obligations or any part of them, or the lack of perfection or continuing
perfection or failure of priority of any security for the Obligations or any
part of them;
(b) the absence of any attempt to collect the Obligations or any part
of them from the Borrower or other action to enforce the same;
(c) failure by any Guarantied Party to take any steps to perfect and
maintain any Lien on, or to preserve any rights to, any Collateral;
(d) any Guarantied Party's election, in any proceeding instituted
under chapter 11 of the Bankruptcy Code, of the application of Section
1111(b)(2) of the Bankruptcy Code or any applicable provisions of comparable
state or foreign law;
(e) any borrowing or grant of a Lien by the Borrower, as debtor in
possession, or extension of credit, under Section 364 of the Bankruptcy Code or
any applicable provisions of comparable state or foreign law;
(f) the disallowance, under Section 502 of the Bankruptcy Code, of all
or any portion of any Guarantied Party's claim (or claims) for repayment of the
Obligations;
(g) any use of cash collateral under Section 363 of the Bankruptcy
Code;
(h) any agreement or stipulation as to the provision of adequate
protection in any bankruptcy proceeding;
(i) the avoidance of any Lien in favor of the Guarantied Parties or
any of them for any reason;
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(j) any bankruptcy, insolvency, reorganization, arrangement,
readjustment of debt, liquidation or dissolution proceeding commenced by or
against the Borrower, any Guarantor or any of the Borrower's other Subsidiaries,
including any discharge of, or bar or stay against collecting, any Obligation
(or any part of them or interest thereon) in or as a result of any such
proceeding;
(k) failure by any Guarantied Party to file or enforce a claim against
the Borrower or its estate in any bankruptcy or insolvency case or proceeding;
(l) any action taken by any Guarantied Party if such action is
authorized hereby;
(m) any election following the occurrence of an Event of Default by
any Guarantied Party to proceed separately against the personal property
Collateral in accordance with such Guarantied Party's rights under the UCC or,
if the Collateral consists of both personal and real property, to proceed
against such personal and real property in accordance with such Guarantied
Party's rights with respect to such real property;
(n) any change in the corporate existence, ownership or structure of
the Borrower or any other Loan Party;
(o) any defense, set-off or counterclaim (other than a defense of
payment or performance) which may at any time be available to or be asserted by
any Guarantor or any other Person against any Guarantied Party;
(p) any Requirement of Law affecting any term of any Guarantor's
obligations under this Guaranty; or
(q) any other circumstance that might otherwise constitute a legal or
equitable discharge or defense of a surety or guarantor or any other obligor on
any obligations, other than the payment in full of the Obligations.
SECTION 6 WAIVERS
Each Guarantor hereby waives diligence, promptness, presentment,
demand for payment or performance and protest and notice of protest, notice of
acceptance and any other notice in respect of the Obligations or any part of
them, and any defense arising by reason of any disability or other defense of
the Borrower. Each Guarantor shall not, until the Obligations are irrevocably
paid in full and the Revolving Credit Commitments have been terminated, assert
any claim or counterclaim it may have against the Borrower or set off any of its
obligations to the Borrower against any obligations of the Borrower to it. In
connection with the foregoing, each Guarantor covenants that its obligations
hereunder shall not be discharged, except by complete performance.
SECTION 7 RELIANCE
Each Guarantor hereby assumes responsibility for keeping itself
informed of the financial condition of the Borrower and any endorser and other
guarantor of all or any part of the Obligations, and of all other circumstances
bearing upon the risk of nonpayment of the Obligations, or any part thereof,
that diligent inquiry would reveal, and each Guarantor hereby
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agrees that no Guarantied Party shall have any duty to advise any Guarantor of
information known to it regarding such condition or any such circumstances. In
the event any Guarantied Party, in its sole discretion, undertakes at any time
or from time to time to provide any such information to any Guarantor, such
Guarantied Party shall be under no obligation (a) to undertake any investigation
not a part of its regular business routine, (b) to disclose any information that
such Guarantied Party, pursuant to accepted or reasonable commercial finance or
banking practices, wishes to maintain confidential or (c) to make any other or
future disclosures of such information or any other information to any
Guarantor.
SECTION 8 WAIVER OF SUBROGATION AND CONTRIBUTION RIGHTS
Until the Obligations have been irrevocably paid in full and the
Revolving Credit Commitments have been terminated, the Guarantors shall not
enforce or otherwise exercise any right of subrogation to any of the rights of
the Guarantied Parties or any part of them against the Borrower or any right of
reimbursement or contribution or similar right against the Borrower by reason of
this Agreement or by any payment made by any Guarantor in respect of the
Obligations.
SECTION 9 SUBORDINATION
Each Guarantor hereby agrees that any Indebtedness of the Borrower now
or hereafter owing to any Guarantor, whether heretofore, now or hereafter
created (the "Guarantor Subordinated Debt"), is hereby subordinated to all of
the Obligations and that, except as permitted under Section 8.5 (Restricted
Payments) of the Credit Agreement, the Guarantor Subordinated Debt shall not be
paid in whole or in part until the Obligations have been paid in full and this
Guaranty is terminated and of no further force or effect. No Guarantor shall
accept any payment of or on account of any Guarantor Subordinated Debt at any
time in contravention of the foregoing. Upon the occurrence and during the
continuance of an Event of Default, the Borrower shall pay to the Administrative
Agent any payment of all or any part of the Guarantor Subordinated Debt and any
amount so paid to the Administrative Agent shall be applied to payment of the
Obligations as provided in Section 2.13(f) (Payments and Computations) of the
Credit Agreement. Each payment on the Guarantor Subordinated Debt received in
violation of any of the provisions hereof shall be deemed to have been received
by such Guarantor as trustee for the Guarantied Parties and shall be paid over
to the Administrative Agent immediately on account of the Obligations, but
without otherwise affecting in any manner such Guarantor's liability hereof.
Each Guarantor agrees to file all claims against the Borrower in any bankruptcy
or other proceeding in which the filing of claims is required by law in respect
of any Guarantor Subordinated Debt, and the Administrative Agent shall be
entitled to all of such Guarantor's rights thereunder. If for any reason a
Guarantor fails to file such claim at least ten Business Days prior to the last
date on which such claim should be filed, such Guarantor hereby irrevocably
appoints the Administrative Agent as its true and lawful attorney-in-fact and is
hereby authorized to act as attorney-in-fact in such Guarantor's name to file
such claim or, in the Administrative Agent's discretion, to assign such claim to
and cause proof of claim to be filed in the name of the Administrative Agent or
its nominee. In all such cases, whether in administration, bankruptcy or
otherwise, the person or persons authorized to pay such claim shall pay to the
Administrative Agent the full amount payable on the claim in the proceeding,
and, to the full extent necessary for that purpose, each Guarantor hereby
assigns to the Administrative Agent all of such Guarantor's rights to any
payments or distributions to which such Guarantor otherwise would be entitled.
If the amount so paid is greater than such Guarantor's liability hereunder, the
Administrative Agent shall pay the excess amount to the party entitled thereto.
In addition, each Guarantor hereby
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irrevocably appoints the Administrative Agent as its attorney-in-fact to
exercise all of such Guarantor's voting rights in connection with any bankruptcy
proceeding or any plan for the reorganization of the Borrower.
SECTION 10 DEFAULT; REMEDIES
The obligations of each Guarantor hereunder are independent of and
separate from the Obligations. If any Obligation is not paid when due, or upon
any Event of Default hereunder or upon any default by the Borrower as provided
in any other instrument or document evidencing all or any part of the
Obligations, the Administrative Agent may, at its sole election, proceed
directly and at once, without notice, against any Guarantor to collect and
recover the full amount or any portion of the Obligations then due, without
first proceeding against the Borrower or any other guarantor of the Obligations,
or against any Collateral under the Loan Documents or joining the Borrower or
any other guarantor in any proceeding against any Guarantor. At any time after
maturity of the Obligations, the Administrative Agent may (unless the
Obligations have been irrevocably paid in full), without notice to any Guarantor
and regardless of the acceptance of any Collateral for the payment hereof,
appropriate and apply toward the payment of the Obligations (a) any indebtedness
due or to become due from any Guarantied Party to such Guarantor and (b) any
moneys, credits or other property belonging to such Guarantor at any time held
by or coming into the possession of any Guarantied Party or any of its
respective Affiliates.
SECTION 11 IRREVOCABILITY
This Guaranty shall be irrevocable as to the Obligations (or any part
thereof) until the Commitments have been terminated and all monetary Obligations
then outstanding have been irrevocably repaid in cash, at which time this
Guaranty shall automatically be cancelled. Upon such cancellation and at the
written request of any Guarantor or its successors or assigns, and at the cost
and expense of such Guarantor or its successors or assigns, the Administrative
Agent shall execute in a timely manner a satisfaction of this Guaranty and such
instruments, documents or agreements as are necessary or desirable to evidence
the termination of this Guaranty.
SECTION 12 SETOFF
In addition to any rights now or hereafter granted under applicable
law or otherwise, and not by way of limitation of any such rights, upon the
occurrence and during the continuance of an Event of Default, each Guarantied
Party and each Affiliate of a Guarantied Party may, without notice to any
Guarantor and regardless of the acceptance of any security or collateral for the
payment hereof, to set off and to appropriate and apply toward the payment of
all or any part of the Obligations (a) any indebtedness due or to become due
from such Guarantied Party or Affiliate to such Guarantor and (b) any moneys,
credits or other property belonging to such Guarantor, at any time held by, or
coming into, the possession of such Guarantied Party or Affiliate.
SECTION 13 NO MARSHALLING
Each Guarantor consents and agrees that no Guarantied Party or Person
acting for or on behalf of any Guarantied Party shall be under any obligation to
marshal any assets in favor of any Guarantor or against or in payment of any or
all of the Obligations.
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SECTION 14 ENFORCEMENT; WAIVERS; AMENDMENTS
(a) No delay on the part of any Guarantied Party in the exercise of
any right or remedy arising under this Guaranty, the Credit Agreement, any other
Loan Document or otherwise with respect to all or any part of the Obligations,
the Collateral or any other guaranty of or security for all or any part of the
Obligations shall operate as a waiver thereof, and no single or partial exercise
by any such Person of any such right or remedy shall preclude any further
exercise thereof. Failure by any Guarantied Party at any time or times hereafter
to require strict performance by the Borrower, any Guarantor, any other
guarantor of all or any part of the Obligations or any other Person of any
provision, warranty, term or condition contained in any Loan Document now or at
any time hereafter executed by any such Persons and delivered to any Guarantied
Party shall not waive, affect or diminish any right of any Guarantied Party at
any time or times hereafter to demand strict performance thereof and such right
shall not be deemed to have been waived by any act (except by a written
instrument pursuant to Section 14(b)) or knowledge of any Guarantied Party, or
its respective agents, officers or employees. No waiver of any Event of Default
by any Guarantied Party shall operate as a waiver of any other Event of Default
or the same Event of Default on a future occasion, and no action by any
Guarantied Party permitted hereunder shall in any way affect or impair any
Guarantied Party's rights and remedies or the obligations of any Guarantor under
this Guaranty. Any determination by a court of competent jurisdiction of the
amount of any principal or interest owing by the Borrower to a Guarantied Party
shall be conclusive and binding on each Guarantor irrespective of whether such
Guarantor was a party to the suit or action in which such determination was
made.
(b) None of the terms or provisions of this Guaranty may be waived,
amended, supplemented or modified except in accordance with Section 11.1
(Amendments, Waivers, Etc.) of the Credit Agreement.
SECTION 15 SUCCESSORS AND ASSIGNS
This Guaranty shall be binding upon each Guarantor and upon the
successors and assigns of such Guarantors and shall inure to the benefit of the
Guarantied Parties and their respective successors and assigns; all references
herein to the Borrower and to the Guarantors shall be deemed to include their
respective successors and assigns. The successors and assigns of the Guarantors
and the Borrower shall include, without limitation, their respective receivers,
trustees and debtors-in-possession. All references to the singular shall be
deemed to include the plural where the context so requires.
SECTION 16 REPRESENTATIONS AND WARRANTIES; COVENANTS
Each Guarantor hereby (a) represents and warrants that the
representations and warranties as to it made by the Borrower in Article IV
(Representations and Warranties) of the Credit Agreement are true and correct on
each date as required by Section 3.2(b)(i) (Conditions Precedent to Each Loan
and Letter of Credit) of the Credit Agreement and (b) agrees to take, or refrain
from taking, as the case may be, each action necessary to be taken or not taken,
as the case may be, so that no Default or Event of Default is caused by the
failure to take such action or to refrain from taking such action by such
Guarantor.
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SECTION 17 GOVERNING LAW
This Guaranty and the rights and obligations of the parties hereto
shall be governed by, and construed and interpreted in accordance with, the law
of the State of New York.
SECTION 18 SUBMISSION TO JURISDICTION; SERVICE OF PROCESS
(a) Any legal action or proceeding with respect to this Guaranty, and
any other Loan Document, may be brought in the courts of the State of New York
or of the United States of America for the Southern District of New York, and,
by execution and delivery of this Agreement, each Guarantor hereby accepts for
itself and in respect of its property, generally and unconditionally, the
jurisdiction of the aforesaid courts. The parties hereto hereby irrevocably
waive any objection, including any objection to the laying of venue or based on
the grounds of forum non conveniens, that any of them may now or hereafter have
to the bringing of any such action or proceeding in such respective
jurisdictions.
(b) Each Guarantor irrevocably consents to the service of any and all
process in any such action or proceeding by the mailing (by registered or
certified mail, postage prepaid) of copies of such process to such Guarantor
care of the Borrower at the Borrower's address specified in Section 11.8
(Notices, Etc.) of the Credit Agreement or at such other address as the Borrower
may specify pursuant to such Section 11.8. Each Guarantor agrees that a final
judgment in any such action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other manner
provided by law.
(c) Nothing contained in this Section 18 (Submission to Jurisdiction;
Service of Process) shall affect the right of the Administrative Agent or any
other Guarantied Party to serve process in any other manner permitted by law or
commence legal proceedings or otherwise proceed against a Guarantor in any other
jurisdiction.
(d) If for the purposes of obtaining judgment in any court it is
necessary to convert a sum due hereunder in Dollars into another currency, the
parties hereto agree, to the fullest extent they may effectively do so, that the
rate of exchange used shall be that at which in accordance with normal banking
procedures the Administrative Agent could purchase Dollars with such other
currency at the spot rate of exchange quoted by the Administrative Agent at
11:00 a.m. (New York time) on the Business Day preceding that on which final
judgment is given, for the purchase of Dollars, for delivery two Business Days
thereafter.
SECTION 19 WAIVER OF JUDICIAL BOND
To the fullest extent permitted by applicable law, the Guarantor
waives the requirement to post any bond that otherwise may be required of any
Guarantied Party in connection with any judicial proceeding to enforce such
Guarantied Party's rights to payment hereunder, security interest in or other
rights to the Collateral or in connection with any other legal or equitable
action or proceeding arising out of, in connection with, or related to this
Guaranty and the Loan Documents to which it is a party.
SECTION 20 CERTAIN TERMS
The following rules of interpretation shall apply to this Guaranty:
(a) the terms "herein," "hereof," "hereto" and "hereunder" and similar terms
refer to this Guaranty as a whole
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and not to any particular Article, Section, subsection or clause in this
Guaranty, (b) unless otherwise indicated, references herein to an Exhibit,
Article, Section, subsection or clause refer to the appropriate Exhibit to, or
Article, Section, subsection or clause in this Guaranty and (c) the term
"including" means "including without limitation" except when used in the
computation of time periods.
SECTION 21 WAIVER OF JURY TRIAL
EACH OF THE ADMINISTRATIVE AGENT, THE OTHER GUARANTIED PARTIES AND
EACH GUARANTOR IRREVOCABLY WAIVES TRIAL BY JURY IN ANY ACTION OR PROCEEDING WITH
RESPECT TO THIS GUARANTY AND ANY OTHER LOAN DOCUMENT.
SECTION 22 NOTICES
Any notice or other communication herein required or permitted shall
be given as provided in Section 11.8 (Notices, Etc.) of the Credit Agreement
and, in the case of any Guarantor, to such Guarantor in care of the Borrower.
SECTION 23 SEVERABILITY
Wherever possible, each provision of this Guaranty shall be
interpreted in such manner as to be effective and valid under applicable law,
but if any provision of this Guaranty shall be prohibited by or invalid under
such law, such provision shall be ineffective to the extent of such prohibition
or invalidity without invalidating the remainder of such provision or the
remaining provisions of this Guaranty.
SECTION 24 ADDITIONAL GUARANTORS
Each of the Guarantors agrees that, if, pursuant to Section 7.11(b)
(Additional Collateral and Guaranties) of the Credit Agreement, the Borrower
shall be required to cause any Subsidiary thereof that is not a Guarantor to
become a Guarantor hereunder, or if for any reason the Borrower desires any such
Subsidiary to become a Guarantor hereunder, such Subsidiary shall execute and
deliver to the Administrative Agent a Guaranty Supplement in substantially the
form of Exhibit A (Guaranty Supplement) attached hereto and shall thereafter for
all purposes be a party hereto and have the same rights, benefits and
obligations as a Guarantor party hereto on the Closing Date.
SECTION 25 COLLATERAL
Each Guarantor hereby acknowledges and agrees that its obligations
under this Guaranty are secured pursuant to the terms and provisions of the
Collateral Documents executed by it in favor of the Administrative Agent, for
the benefit of the Secured Parties, and covenants that it shall not grant any
Lien with respect to its Property in favor, or for the benefit, of any Person
other than the Administrative Agent, for the benefit of the Secured Parties
except as otherwise permitted by Section 8.2 (Liens, etc.) of the Credit
Agreement.
SECTION 26 WAIVER OF CONSEQUENTIAL DAMAGES
EACH GUARANTOR HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE
MAXIMUM EXTENT NOT PROHIBITED BY LAW, ANY RIGHT IT MAY HAVE TO CLAIM OR RECOVER
ANY
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SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGE IN ANY LEGAL ACTION OR
PROCEEDING IN RESPECT OF THIS GUARANTY OR ANY OTHER LOAN DOCUMENT.
SECTION 27 ENTIRE AGREEMENT
This Guaranty, taken together with all of the other Loan Documents
executed and delivered by the Guarantors, represents the entire agreement and
understanding of the parties hereto and supersedes all prior understandings,
written and oral, relating to the subject matter hereof.
SECTION 28 COUNTERPARTS
This Guaranty may be executed in any number of separate counterparts
and by different parties in separate counterparts, each of which when so
executed shall be deemed to be an original and all of which taken together shall
constitute one and the same agreement. Signature pages may be detached from
multiple counterparts and attached to a single counterpart so that all signature
pages are attached to the same document. Delivery of an executed counterpart by
facsimile transmission or electronic mail shall be effective as delivery of a
manually executed counterpart.
[SIGNATURE PAGES FOLLOW]
11
IN WITNESS WHEREOF, this Guaranty has been duly executed by the
Guarantors as of the day and year first set forth above.
GUARANTORS:
WCI STEEL METALLURGICAL SERVICES
ACQUISITION, INC., as Guarantor
By: /s/ Xxxxxxx Xxxxx
-----------------------------------
Name: Xxxxxxx Xxxxx
Title: President
WCI STEEL PRODUCTION CONTROL SERVICES
ACQUISITION, INC., as Guarantor
By: /s/ Xxxxxxx Xxxxx
-----------------------------------
Name: Xxxxxxx Xxxxx
Title: President
YOUNGSTOWN SINTER ACQUISITION COMPANY,
as Guarantor
By: /s/ Xxxxxxx Xxxxx
-----------------------------------
Name: Xxxxxxx Xxxxx
Title: President
WCI STEEL SALES ACQUISITION, L.P.,
as Guarantor
By: WCI STEEL PRODUCTION CONTROL
SERVICES ACQUISITION, INC.,
its General Partner
By: /s/ Xxxxxxx Xxxxx
-----------------------------------
Name: Xxxxxxx Xxxxx
Title: President
[SIGNATURE PAGE TO GUARANTY OF WCI STEEL CREDIT AGREEMENT]
ACKNOWLEDGED AND AGREED
as of the date first above written:
CITICORP USA, INC.
as Administrative Agent
By: /s/ Xxxxx Xxxxx
----------------------------------
Name: Xxxxx Xxxxx
Title: Director/Vice President
[SIGNATURE PAGE TO GUARANTY OF WCI STEEL, INC. CREDIT AGREEMENT]
EXHIBIT A
TO
GUARANTY
FORM OF GUARANTY SUPPLEMENT
The undersigned hereby agrees to be bound as a Guarantor for purposes
of the Guaranty, dated as of May __, 2006 (the "Guaranty"), among the Guarantors
listed on the signature pages thereof and acknowledged by Citicorp USA, Inc., as
Administrative Agent, and the undersigned hereby acknowledges receipt of a copy
of the Guaranty. The undersigned hereby represents and warrants that each of the
representations and warranties contained in Section 16 (Representations and
Warranties; Covenants) of the Guaranty applicable to it is true and correct on
and as the date hereof as if made on and as of such date. Capitalized terms used
herein but not defined herein are used with the meanings given them in the
Guaranty.
IN WITNESS WHEREOF, the undersigned has caused this Guaranty
Supplement to be duly executed and delivered as of ___________, ____.
[NAME OF SUBSIDIARY GUARANTOR]
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
ACKNOWLEDGED AND AGREED
as of the date first above written:
CITICORP USA, INC.
as Administrative Agent
By:
----------------------------------
Name:
--------------------------------
Title:
-------------------------------
