Exhibit 4(c)
GUARANTY AGREEMENT
THIS GUARANTY AGREEMENT (this "Guaranty") is made as of this 14th day
of March, 2003, by and among each of the parties who have executed this Guaranty
(collectively the "Guarantors" and individually a "Guarantor") in favor of Fifth
Third Bank, an Ohio banking corporation (the "Bank").
WITNESSETH:
WHEREAS, each Guarantor is a subsidiary or affiliate of
CLEVELAND-CLIFFS INC, an Ohio corporation (the "Borrower"); and
WHEREAS, the Borrower and the Bank have entered into a Credit Agreement
dated as of March 14, 2003 (such Credit Agreement as the same may from time to
time hereafter be modified, amended or restated being hereinafter referred to as
the "Credit Agreement") pursuant to which the Bank has extended various credit
facilities to the Borrower; and
WHEREAS, the Borrower provides each of the Guarantors with substantial
financial, management, administrative, technical and design support; and
WHEREAS, the interdependent nature of the businesses of each of the
Guarantors and the Borrower is such that the viability of each Guarantor is
dependent upon the continued success of the Borrower and upon the continuation
of the Borrower's business relationships with such Guarantor, and the
continuation thereof necessitates the Borrower's access to credit and other
financial accommodations from the Bank which the Bank will only make available
on the condition, among others, that the Guarantors guarantee all indebtedness,
obligations and liabilities of the Borrower from time to time owing to the Bank
under the Credit Agreement; and
WHEREAS, each Guarantor will directly and substantially benefit from
credit and other financial accommodations extended and to be extended by the
Bank to the Borrower.
NOW, THEREFORE, FOR VALUE RECEIVED, and in consideration of advances
made or to be made, or credit accommodations given or to be given, to the
Borrower by the Bank from time to time, each Guarantor hereby agrees as follows:
1. All capitalized terms used herein without definition shall have the
same meanings herein as such terms have in the Credit Agreement.
2. The Guarantors hereby jointly and severally guarantee the full and
prompt payment to the Bank at maturity and at all times thereafter of (i) any
and all indebtedness, obligations and liabilities of every kind and nature of
the Borrower to the Bank under or in connection with or evidenced by the Credit
Agreement, the Note of the Borrower heretofore or hereafter issued under the
Credit Agreement and the obligations of the Borrower to reimburse the Bank for
the amount of all drawings on all Letters of Credit issued pursuant to the
Credit Agreement and all other obligations of the Borrower under any and all
applications for Letters of Credit (and
whether arising before or after the filing of a petition in bankruptcy and
including all interest accrued after the petition date), due or to become due,
direct or indirect, absolute or contingent, and howsoever evidenced, held or
acquired (hereinafter all such indebtedness, obligations and liabilities being
collectively referred to as the "indebtedness hereby guaranteed").
Notwithstanding in this Guaranty to the contrary, the right of recovery against
a Guarantor under this Guaranty shall not exceed $1.00 less than the lowest
amount which would render such Guarantor's obligations under this Guaranty void
or voidable under applicable law, including fraudulent conveyance law.
3. The Guarantors further jointly and severally agree to pay all costs
and expenses, legal and/or otherwise (including court costs and reasonable
attorneys' fees), suffered or incurred by the Bank in enforcing or endeavoring
to enforce this Guaranty, in enforcing or endeavoring to collect the
indebtedness hereby guaranteed, or any part thereof, and in protecting,
defending or enforcing this Guaranty in any litigation, bankruptcy or insolvency
proceedings or otherwise.
4. If any of the indebtedness hereby guaranteed is not paid when due
and payable, each Guarantor agrees that, upon demand, such Guarantor will then
pay to the Bank the full amount of the indebtedness hereby guaranteed (subject
to the limitations on the right of recovery from such Guarantor pursuant to the
last sentence of Section 2 above) whether or not any one or more of the other
Guarantors shall then or thereafter pay any amount whatsoever in respect to
their obligations hereunder.
5. Each of the Guarantors agrees that such Guarantor will not exercise
or enforce any right of exoneration, contribution, reimbursement, recourse or
subrogation available to such Guarantor against any person liable for payment of
the indebtedness hereby guaranteed, or as to any security therefor, unless and
until the full amount owing to the Bank of the indebtedness hereby guaranteed
has been paid and all commitments, if any, of the Bank to extend credit to or
for the account of the Borrower which, when made, would constitute indebtedness
hereby guaranteed shall have terminated. The payment by any Guarantor of any
amount or amounts to the Bank pursuant hereto shall not in any way entitle any
such Guarantor, either at law, in equity or otherwise, to any right, title or
interest (whether by way of subrogation or otherwise) in and to the indebtedness
hereby guaranteed or any part thereof or any collateral security therefor or any
other rights or remedies in any way relating thereto or in and to any amounts
theretofore, then or thereafter paid or applicable to the payment thereof
howsoever such payment may be made and from whatsoever source such payment may
be derived unless and until all of the indebtedness hereby guaranteed and all
costs and expenses suffered or incurred by said Bank in enforcing this Guaranty
have been paid in full and all commitments, if any, of the Bank to extend credit
to or for the account of the Borrower which, when made, would constitute
indebtedness hereby guaranteed shall have terminated and unless and until such
payment in full and termination, any payments made by any Guarantor hereunder
and any other payments from whatsoever source derived on account of or
applicable to the indebtedness hereby guaranteed or any part thereof shall be
held and taken to be merely payments in gross to the Bank reducing pro tanto the
indebtedness hereby guaranteed.
6. The Bank may, without any notice whatsoever to any one, sell,
assign, or transfer all of the indebtedness hereby guaranteed, or any part
thereof, or grant participations therein, and
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in that event each and every immediate and successive assignee, transferee, or
holder of or participant in all or any part of the indebtedness hereby
guaranteed, shall have the right to enforce this Guaranty, by suit or otherwise,
for the benefit of such assignee, transferee, holder or participant, as fully as
if such assignee, transferee, holder or participant were herein by name
specifically given such rights, powers and benefits; but the Bank shall have an
unimpaired right to enforce this Guaranty for the benefit of the Bank or any
such participant, as to so much of the indebtedness hereby guaranteed that it
has not sold, assigned or transferred.
7. This Guaranty is a continuing, absolute and unconditional Guaranty,
and shall remain in full force and effect until written notice of its
discontinuance executed by the Borrower and all the Guarantors shall be actually
received by said Bank, and also until any and all of said indebtedness hereby
guaranteed created or existing before receipt of such notice shall be fully paid
and all commitments, if any, of the Bank to extend credit to or for the account
of the Borrower which, when made, would constitute indebtedness hereby
guaranteed shall have terminated. The dissolution of any of the Guarantors shall
not terminate this Guaranty until notice of such dissolution shall have been
actually received by said Bank, nor until all of said indebtedness hereby
guaranteed, created or existing or committed to be extended in each case before
receipt of such notice shall be fully paid. The Bank may at any time or from
time to time release any Guarantor from its obligations hereunder or effect any
compromise with any Guarantor and no such release or compromise shall in any
manner effect or impair the obligations hereunder of the other Guarantors.
8. In case of the incompetency, dissolution, liquidation or insolvency
(howsoever evidenced) of, or the institution of bankruptcy or receivership
proceedings against the Borrower or any of the Guarantors, all of the
indebtedness hereby guaranteed which is then existing shall, at the option of
the Bank, immediately become due or accrued and payable from the Guarantors. All
dividends or other payments received from the Borrower or on account of the
indebtedness hereby guaranteed from whatsoever source, shall be taken and
applied as payment in gross, and this Guaranty shall apply to and secure any
ultimate balance that shall remain owing to the Bank.
9. The liability hereunder shall in no way be affected or impaired by
(and said Bank is hereby expressly authorized to make from time to time, without
notice to anyone), any sale, pledge, surrender, compromise, settlement, release,
renewal, extension, indulgence, alteration, substitution, exchange, change in,
modification or other disposition of any of said indebtedness hereby guaranteed,
either express or implied, or of any contract or contracts evidencing any
thereof, or of any security or collateral therefor or any guaranty thereof. The
liability hereunder shall in no way be affected or impaired by any acceptance by
said Bank of any security for or other guarantors upon any of said indebtedness
hereby guaranteed, or by any failure, neglect or omission on the part of said
Bank to realize upon or protect any of said indebtedness hereby guaranteed, or
any collateral or security therefor, or to exercise any lien upon or right of
appropriation of any moneys, credits or property of said Borrower possessed by
said Bank toward the liquidation of said indebtedness hereby guaranteed, or by
any application of payments or credits thereon. Said Bank shall have the
exclusive right to determine how, when and what application of payments and
credits, if any, shall be made on said indebtedness hereby guaranteed, or any
part of same. In order to hold any Guarantor liable hereunder, there shall be no
obligation on the part of said Bank at any time to resort for payment to said
Borrower or to
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any other Guarantor, or to any other person or corporations, their properties or
estate, or resort to any collateral, security, property, liens or other rights
or remedies whatsoever, and the Bank shall have the right to enforce this
Guaranty irrespective of whether or not other proceedings or steps are pending
seeking resort to or realization upon or from any of the foregoing are pending.
10. In the event the Bank shall at any time in its discretion permit a
substitution of Guarantors hereunder or a party shall wish to become Guarantor
hereunder, such substituted or additional Guarantor shall, upon executing an
agreement in the form attached hereto as Exhibit A, become a party hereto and be
bound by all the terms and conditions hereof to the same extent as though such
Guarantor had originally executed this Guaranty and, in the case of a
substitution, in lieu of the Guarantor being replaced. No such substitution
shall be effective absent the written consent of the Bank nor shall it in any
manner affect the obligations of the other Guarantors hereunder.
11. All diligence in collection or protection, and all presentment,
demand, protest and/or notice, as to any and everyone, whether or not the
Borrower or the Guarantors or others, of dishonor and of default and of
non-payment and of the creation and existence of any and all of said
indebtedness hereby guaranteed, and of any security and collateral therefor, and
of the acceptance of this Guaranty, and of any and all extensions of credit and
indulgence hereunder, are expressly waived.
12. No act of commission or omission of any kind, or at any time, upon
the part of the Bank with respect to the Borrower, shall in any way affect or
impair this Guaranty.
13. The Guarantors waive any and all defenses, claims and discharges of
the Borrower, or any other obligor, pertaining to the indebtedness hereby
guaranteed, except the defense of discharge by payment in full. Without limiting
the generality of the foregoing, the Guarantors will not assert, plead or
enforce against the Bank any defense of waiver, release, discharge in
bankruptcy, statute of limitations, res judicata, statue of frauds,
anti-deficiency statute, fraud, incapacity, minority, usury, illegality or
unenforceability which may be available to the Borrower or any other person
liable in respect of any of the indebtedness hereby guaranteed, or any set-off
available against the Bank to the Borrower or any such other person, whether or
not on account of a related transaction. The Guarantors agree that the
Guarantors shall be and remain jointly and severally liable for any deficiency
remaining after foreclosure of any mortgage or security interest securing the
indebtedness hereby guaranteed, whether or not the liability of the Borrower or
any other obligor for such deficiency is discharged pursuant to statute or
judicial decision.
14. If any payment applied by the Bank to the indebtedness hereby
guaranteed is thereafter set aside, recovered, rescinded or required to be
returned for any reason (including, without limitation, the bankruptcy,
insolvency or reorganization of the Borrower or any other obligor), the
indebtedness hereby guaranteed to which such payment was applied shall for the
purposes of this Guaranty be deemed to have continued in existence,
notwithstanding such application, and this Guaranty shall be enforceable as to
such of the indebtedness hereby guaranteed as fully as if such application had
never been made.
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15. The liability of the Guarantors under this Guaranty is in addition
to and shall be cumulative with all other liabilities of the Guarantors after
the date hereof to the Bank as a Guarantor of the indebtedness hereby
guaranteed, without any limitation as to amount, unless the instrument or
agreement evidencing or creating such other liability specifically provides to
the contrary.
16. Any invalidity or unenforceability of any provision or application
of this Guaranty shall not affect other lawful provisions and applications
hereof, and to this end the provisions of this Guaranty are declared to be
severable. Without limiting the generality of the foregoing, any invalidity or
unenforceability against any Guarantor of any provision or application of the
Guaranty shall not affect the validity or enforceability of the provisions or
application of this Guaranty as against the other Guarantors.
17. Any demand for payment on this Guaranty or any other notice
required or desired to be given hereunder to any Guarantor shall be in writing
(including, without limitation, notice by telecopy) and shall be given to the
relevant party c/o Cleveland-Cliffs Inc its address or telecopier number set
forth in the Credit Agreement, or such other address or telecopier number as
such party may hereafter specify by notice to the Bank given by United States
certified or registered mail, by telecopy or by other telecommunication device
capable of creating a written record of such notice and its receipt. Each such
notice, request or other communication shall be effective (i) if given by
telecopier, when such telecopy is transmitted to the telecopier number specified
in this Section and a confirmation of such telecopy has been received by the
sender, (ii) if given by mail, five (5) days after such communication is
deposited in the mail, certified or registered with return receipt requested,
addressed as aforesaid or (iii) if given by any other means, when received at
the addresses specified in this Section.
18. Each Guarantor represents and warrants to the Bank that:
(a) Such Guarantor is a corporation or other legal entity duly
organized, validly existing and in good standing under the laws of its
jurisdiction of organization, and is duly qualified as a foreign corporation or
other legal entity and is in good standing in each jurisdiction in which such
qualification is required by law, other than those jurisdictions as to which the
failure to be so qualified or in good standing would not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect. Such
Guarantor has the power and authority to own or hold under lease the properties
it purports to own or hold under lease, to transact the business it transacts
and proposes to transact, to execute and deliver this Guaranty and to perform
the provisions hereof.
(b) This Guaranty has been duly authorized by all necessary action on
the part of such Guarantor, and this Guaranty constitutes a legal, valid and
binding obligation of such Guarantor enforceable against such Guarantor in
accordance with its terms, except as such enforceability may be limited by (i)
applicable bankruptcy, insolvency, reorganization, moratorium or other similar
laws affecting the enforcement of creditors' rights generally and (ii) general
principles of equity (regardless of whether such enforceability is considered in
a proceeding in equity or at law).
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(c) The execution, delivery and performance by such Guarantor of this
Guaranty will not (i) except with respect to the Existing Agreements,
contravene, result in any breach of, or constitute a default under, or result in
the creation of any Encumbrance in respect of any property of such Guarantor or
any of its subsidiaries under any indenture, mortgage, deed of trust, loan,
purchase or credit agreement, lease, charter document or by-law, or any other
agreement or instrument to which such Guarantor or any of its subsidiaries is
bound or by which such Guarantor or any of its subsidiaries or any of their
respective properties may be bound or affected, or (ii) contravene any provision
of any law, statute, rule, regulation, order, judgment, decree, or ruling of any
court, arbitrator or governmental authority applicable to such Guarantor or any
of its subsidiaries.
(d) No consent, approval or authorization of, or registration, filing
or declaration with, any governmental authority is required in connection with
the execution, delivery or performance by such Guarantor of this Guaranty.
(e) Such Guarantor is solvent, has capital not unreasonably small in
relation to its business or any contemplated or undertaken transaction and has
assets having a value both at fair valuation and at present fair salable value
greater than the amount required to pay its debts as they become due and greater
than the amount that will be required to pay its probable liability on its
existing debts as they become absolute and matured. Such Guarantor does not
intend to incur, or believe or should have believed that it will incur, debts
beyond its ability to pay such debts as they become due. Such Guarantor will not
be rendered insolvent by the execution and delivery of, this Guaranty and, on a
consolidated basis with the Borrower and the other Guarantors, will not be
rendered insolvent. Such Guarantor does not intend to hinder, delay or defraud
its creditors by or through the execution and delivery of, or performance of its
obligations under, this Guaranty.
(f) From and after the date of execution of the Credit Agreement by the
Borrower and continuing so long as any amount remains unpaid thereon, each
Guarantor agrees to comply with the terms and provisions of Section 6 of the
Credit Agreement, insofar as such provisions apply to such Guarantor, as if said
Section was set forth herein in full.
19. THIS GUARANTY SHALL BE GOVERNED BY AND CONSTRUED ACCORDING TO THE
LAW OF THE STATE OF OHIO (without regard to principles of conflicts of laws) in
which state it shall be performed by the Guarantors and may not be waived,
amended, released or otherwise changed except by a writing signed by the Bank.
This Guaranty and every part thereof shall be effective upon delivery to the
Bank, without further act, condition or acceptance by the Bank, shall be binding
upon the Guarantors and upon the successors and assigns of the Guarantors, and
shall inure to the benefit of said Bank, its successors, legal representatives
and assigns. The Guarantors waive notice of the Bank's acceptance hereof. This
Guaranty may be executed in counterparts and by different parties hereto on
separate counterpart signature pages, each of which shall be an original, but
all together to be one and the same instrument.
20. Each Guarantor hereby submits to the nonexclusive jurisdiction of
the United States District Court for the Southern District of Ohio and of any
Ohio State court sitting in the City of Cincinnati, Ohio for purposes of all
legal proceedings arising out of or relating to this Guaranty
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or the transactions contemplated hereby. Each Guarantor irrevocably waives, to
the fullest extent permitted by law, any objection which it may now or hereafter
have to the laying of the venue of any such proceeding brought in such a court
and any claim that any such proceeding brought in such court has been brought in
an inconvenient forum. EACH GUARANTOR AND THE BANK HEREBY IRREVOCABLY WAIVE ANY
AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR
RELATING TO THIS GUARANTY OR THE TRANSACTIONS CONTEMPLATED HEREBY.
[SIGNATURE PAGE TO FOLLOW]
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IN WITNESS WHEREOF, the Guarantors have caused this Guaranty to be
executed and delivered as of the date first above written.
"GUARANTORS"
CLEVELAND-CLIFFS ORE CORPORATION;
THE CLEVELAND-CLIFFS IRON COMPANY;
NORTHSHORE SALES COMPANY;
WABUSH IRON CO. LIMITED;
CLIFFS OIL SHALE CORP.;
CLIFFS ERIE L.L.C.;
CLIFFS MINING COMPANY;
CLIFFS MINING SERVICES COMPANY;
CLIFFS REDUCED IRON CORPORATION;
CLIFFS REDUCED IRON MANAGEMENT COMPANY;
IRONUNITS LLC;
NORTHSHORE MINING COMPANY;
SEIGNELAY RESOURCES, INC.;
SILVER BAY POWER COMPANY;
THE CLEVELAND-CLIFFS STEAMSHIP COMPANY;
CLIFFS BIWABIK ORE CORPORATION;
PICKANDS HIBBING CORPORATION;
SYRACUSE MINING COMPANY;
CLIFFS EMPIRE, INC.;
CLIFFS IH EMPIRE, INC.;
CLIFFS MARQUETTE, INC.;
CLIFFS MC EMPIRE, INC.;
CLIFFS TIOP, INC.;
EMPIRE-CLIFFS PARTNERSHIP
By: CLIFFS EMPIRE, INC., its General
Partner;
MARQUETTE IRON MINING PARTNERSHIP
By: CLEVELAND-CLIFFS ORE CORPORATION,
its General Partner;
WHEELING-PITTSBURGH/CLIFFS PARTNERSHIP
By: CLIFFS EMPIRE, INC., its General
Partner;
and
CLIFFS SNYFUEL CORP.
By: /s/ Xxxxxx Xxxxx
Name: Xxxxxx Xxxxx
Title: Treasurer
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LAKE SUPERIOR & ISHPEMING RAILROAD
COMPANY
and
LASCO DEVELOPMENT CORPORATION
By: /s/ Xxxxxx Xxxxx
Name: Xxxxxx Xxxxx
Title: Assistant Treasurer
REPUBLIC WETLANDS PRESERVE LLC
By: Marquette Iron Mining
Partnership, its sole member
By: The Cleveland-Cliffs Ore
Corporation, its partner
By: /s/ Xxxxxx Xxxxx
Name: Xxxxxx Xxxxx
Title: Treasurer
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Accepted and agreed to as of the date first above written.
FIFTH THIRD BANK
By /s/ Xxxxx X. Xxxxxx
Name Xxxxx X. Xxxxxx
Title Vice President
Address:
0000 Xxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000
Attention: Xxx Xxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
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EXHIBIT A
TO
GUARANTY AGREEMENT
ASSUMPTION AND SUPPLEMENT TO GUARANTY AGREEMENT
This Assumption and Supplement to Guaranty Agreement (the "Agreement")
is dated as of this _____ day of ____________, 20__, made by [NEW GUARANTOR],
a(n) ___________ CORPORATION/LIMITED LIABILITY COMPANY/PARTNERSHIP (the "New
Guarantor") in favor of Fifth Third Bank, an Ohio banking corporation (the
"Bank");
WITNESSETH THAT:
WHEREAS, certain parties have executed and delivered to the Bank that
certain Guaranty Agreement dated as of March 14, 2003 (such Guaranty Agreement,
as the same may from time to time be modified or amended, including supplements
thereto which add or substitute parties as Guarantors thereunder, being
hereinafter referred to as the "Guaranty") pursuant to which such parties (the
"Existing Guarantors") have guaranteed to the Bank the full and prompt payment
of, among other things, any and all indebtedness, obligations and liabilities of
CLEVELAND CLIFFS INC, an Ohio corporation (the "Borrower"), arising under or
relating to the Credit Agreement and the Loan Documents as defined therein; and
WHEREAS, the Borrower provides the New Guarantor with substantial
financial, managerial, administrative, technical and design support and the New
Guarantor will directly and substantially benefit from credit and other
financial accommodations extended and to be extended by the Bank to the
Borrower;
NOW, THEREFORE, FOR VALUE RECEIVED, and in consideration of advances
made or to be made, or credit accommodations given or to be given, to the
Borrower by the Bank from time to time, the New Guarantor hereby agrees as
follows:
1. The New Guarantor acknowledges and agrees that it shall become a
"Guarantor" party to the Guaranty effective upon the date the New Guarantor's
execution of this Agreement and the delivery of this Agreement to the Bank, and
that upon such execution and delivery, all references in the Guaranty to the
terms "Guarantor" or "Guarantors" shall be deemed to include the New Guarantor.
2. The New Guarantor hereby assumes and becomes liable (jointly and
severally with all the other Guarantors) for the indebtedness hereby guaranteed
(as defined in the Guaranty) and agrees to pay and otherwise perform all of the
obligations of a Guarantor under the Guaranty according to, and otherwise on and
subject to, the terms and conditions of the Guaranty to the same extent and with
the same force and effect as if the New Guarantor had originally been one of the
Existing Guarantors under the Guaranty and had originally executed the same as
such an Existing Guarantor.
3. The New Guarantor acknowledges and agrees that, as of the date
hereof, the New Guarantor makes each and every representation and warranty that
is set forth in Section 18 of the Guaranty.
4. All capitalized terms used in this Agreement without definition
shall have the same meaning herein as such terms have in the Guaranty, except
that any reference to the term "Guarantor" or "Guarantors" and any provision of
the Guaranty providing meaning to such term shall be deemed a reference to the
Existing Guarantors and the New Guarantor. Except as specifically modified
hereby, all of the terms and conditions of the Guaranty shall stand and remain
unchanged and in full force and effect.
5. The New Guarantor agrees to execute and deliver such further
instruments and documents and do such further acts and things as the Bank may
deem necessary or proper to carry out more effectively the purposes of this
Agreement.
6. No reference to this Agreement need be made in the Guaranty or in
any other document or instrument making reference to the Guaranty, any reference
to the Guaranty in any of such to be deemed a reference to the Guaranty as
modified hereby.
7. This Agreement shall be governed by and construed in accordance
with the State of Ohio (without regard to principles of conflicts of law) in
which state it shall be performed by the New Guarantor.
[NEW GUARANTOR]
By
Name___________________________________
Title__________________________________
Acknowledged and agreed to as of the date first above written.
FIFTH THIRD BANK
By
Name____________________________________
Title___________________________________
Address:
00 Xxxxxxxx Xxxxxx Xxxxx
Xxxxxxxxxx, Xxxx 00000
Attention: Loan Syndications
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
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