Exhibit 4(f)
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SUBSIDIARY GUARANTY AGREEMENT
Dated as of December 15, 2002
$70,000,000 7.00% Senior Notes, due December 15, 2005
of
CLEVELAND-CLIFFS INC
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TABLE OF CONTENTS
(Not a part of the Agreement)
SECTION HEADING PAGE
Parties......................................................................1
Recitals.....................................................................1
SECTION 1. DEFINITIONS................................................2
SECTION 2. GUARANTY OF NOTES AND NOTE AGREEMENTS......................2
SECTION 3. GUARANTY OF PAYMENT AND PERFORMANCE........................2
SECTION 4. GENERAL PROVISIONS RELATING TO THE GUARANTY................3
SECTION 5. REPRESENTATIONS AND WARRANTIES OF THE GUARANTORS...........8
SECTION 6. GUARANTOR COVENANTS........................................9
SECTION 7. GOVERNING LAW..............................................9
SECTION 8. AMENDMENTS, WAIVERS AND CONSENTS..........................10
SECTION 9. NOTICES...................................................10
SECTION 10. MISCELLANEOUS.............................................11
SECTION 11. INDEMNITY.................................................12
Signature...................................................................13
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SUBSIDIARY GUARANTY AGREEMENT
$70,000,000 7.00% Senior Notes, due December 15, 2005
This SUBSIDIARY GUARANTY AGREEMENT dated as of December 15, 2002 (the or
this "Guaranty") is entered into on a joint and several basis by the
undersigned, together with any entity which may become a party hereto by
execution and delivery of a Subsidiary Guaranty Supplement in substantially the
form set forth as EXHIBIT A hereto (a "Guaranty Supplement") (which parties are
hereinafter referred to individually as a "Guarantor" and collectively as the
"Guarantors").
RECITALS
A. Each Guarantor is a subsidiary or affiliate of Cleveland-Cliffs
Inc, an Ohio corporation (the "Obligor").
B. The Obligor has entered into those certain separate Note Agreements
each dated as of December 15, 1995 (the "Existing Note Agreements") among the
Obligor and each of the purchasers named on Schedule I thereto (the "Initial
Note Purchasers"; the Initial Note Purchasers, together with their successors,
assigns or any other future holder of the Notes (as defined below), the
"Holders"), providing for, inter alia, the issue and sale by the Obligor to the
Initial Note Purchasers of $70,000,000 aggregate principal amount of their 7.00%
Senior Notes due December 15, 2005 (the "Notes").
C. The Obligor desires the Holders to enter into that certain First
Amendment Agreement dated as of December 15, 2002 (the Existing Note Agreements,
as amended by the First Amendment Agreement are hereby referred to as the "Note
Agreements"). The Holders have required as a condition to their execution of the
First Amendment Agreement that the Obligor cause the undersigned to enter into
this Guaranty and cause each entity that becomes a Subsidiary Guarantor (as
defined in the Note Agreements) after December 15, 2002 to enter into a Guaranty
Supplement, in each case as security for the Notes, and the Obligor has agreed
to cause the undersigned to execute this Guaranty and to cause such Subsidiaries
to execute a Guaranty Supplement, in each case in order to induce the Holders to
execute the First Amendment Agreement and thereby benefit the Holder and its
Subsidiaries.
D. Each of the Guarantors will derive substantial direct and indirect
benefit from the execution of the First Amendment Agreement by the Holders.
NOW, THEREFORE, as required by Section 5.21 of the Note Agreements and in
consideration of the premises and other good and valuable consideration, the
receipt and sufficiency whereof are hereby acknowledged, each Guarantor does
hereby covenant and agree, jointly and severally, as follows:
SECTION 1. DEFINITIONS.
Capitalized terms used herein shall have the meanings set forth in the
Note Agreements unless herein defined or the context shall otherwise require.
SECTION 2. GUARANTY OF NOTES AND NOTE AGREEMENTS
(a) Each Guarantor jointly and severally does hereby irrevocably,
absolutely and unconditionally guarantee unto the Holders: (1) the full and
prompt payment of the principal of, premium, if any, and interest on the Notes
from time to time outstanding, as and when such payments shall become due and
payable whether by lapse of time, upon redemption or prepayment, by extension or
by acceleration or declaration or otherwise (including (to the extent legally
enforceable) interest due on overdue payments of principal, premium, if any, or
interest at the rate set forth in the Notes) in Federal or other immediately
available funds of the United States of America which at the time of payment or
demand therefor shall be legal tender for the payment of public and private
debts, (2) the full and prompt performance and observance by the Obligor of each
and all of the obligations, covenants and agreements required to be performed or
owed by the Obligor under the terms of the Notes, the Note Agreements and any
other Financing Agreements of the Obligor and (3) the full and prompt payment,
upon demand by any Holder of all costs and expenses, legal or otherwise
(including reasonable attorneys' fees), if any, as shall have been expended or
incurred in the enforcement of any rights, privileges or liabilities in favor of
the Holders under or in respect of the Notes, the Note Agreements and any other
Financing Agreements of the Obligor or under this Guaranty or in any
consultation or action in connection therewith or herewith.
(b) The liability of each Guarantor under this Guaranty shall not exceed an
amount equal to a maximum amount as will, after giving effect to such maximum
amount and all other liabilities of such Guarantor, contingent or otherwise,
result in the obligations of such Guarantor hereunder not constituting a
fraudulent transfer, obligation or conveyance.
SECTION 3. GUARANTY OF PAYMENT AND PERFORMANCE
This is a guarantee of payment and performance and each Guarantor hereby
waives, to the fullest extent permitted by law, any right to require that any
action on or in respect of any Note or the Note Agreements or any other
Financing Agreement be brought against the Obligor or any other Person or that
resort be had to any direct or indirect security for the Financing Agreement or
any other remedy. Any Holder may, at its option, proceed hereunder against any
Guarantor in the first instance to collect monies when due, the payment of which
is guaranteed hereby, without first proceeding against the Obligor or any other
Person and without first resorting to any direct or indirect security for the
Notes or for this Guaranty or any other remedy. The liability of each Guarantor
hereunder shall in no way be affected or impaired by any acceptance by any
Holder of any direct or indirect security for, or other guaranties of, any
Indebtedness, liability or obligation of the Obligor or any other Person to any
Holder or by any failure, delay, neglect or omission by any Holder to realize
upon or protect any such guarantees, Indebtedness, liability or obligation or
any notes or other instruments evidencing the same or any
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direct or indirect security therefor or by any approval, consent, waiver, or
other action taken, or omitted to be taken by any such Holder.
The covenants and agreements on the part of the Guarantors herein
contained shall take effect as joint and several covenants and agreements, and
references to the Guarantors shall take effect as references to each of them and
none of them shall be released from liability hereunder by reason of the
guarantee ceasing to be binding as a continuing security on any other of them.
SECTION 4. GENERAL PROVISIONS RELATING TO THE GUARANTY.
(a) Each Guarantor hereby consents and agrees that any Holder or Holders
from time to time, with or without any further notice to or assent from any
other Guarantor may, without in any manner affecting the liability of any
Guarantor under this Guaranty, and upon such terms and conditions as any such
Holder or Holders may deem advisable:
(1) extend in whole or in part (by renewal or otherwise), modify,
change, compromise, release or extend the duration of the time for the
performance or payment of any Indebtedness, liability or obligation of the
Obligor or of any other Person secondarily or otherwise liable for any
Indebtedness, liability or obligations of the Obligor on the Notes, or
waive any Default with respect thereto, or waive, modify, amend or change
any provision of any other agreement or waive this Guaranty; or
(2) sell, release, surrender, modify, impair, exchange or substitute
any and all property, of any nature and from whomsoever received, held by,
or for the benefit of, any such Holder as direct or indirect security for
the payment or performance of any Indebtedness, liability or obligation of
the Obligor or of any other Person secondarily or otherwise liable for any
Indebtedness, liability or obligation of the Obligor on the Notes; or
(3) settle, adjust or compromise any claim of the Obligor against
any other Person secondarily or otherwise liable for any Indebtedness,
liability or obligation of the Obligor on the Notes.
Each Guarantor hereby ratifies and confirms any such extension, renewal,
change, sale, release, waiver, surrender, exchange, modification, amendment,
impairment, substitution, settlement, adjustment or compromise and that the same
shall be binding upon it, and hereby waives, to the fullest extent permitted by
law, any and all defenses, counterclaims or offsets which it might or could have
by reason thereof, it being understood that such Guarantor shall at all times be
bound by this Guaranty and remain liable hereunder.
(b) Each Guarantor hereby waives, to the fullest extent permitted by law:
(1) notice of acceptance of this Guaranty by the Holders or of the
creation, renewal or accrual of any liability of the Obligor, present or
future, or of the reliance of such Holders upon this Guaranty (it being
understood that every Indebtedness, liability
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and obligation described in SECTION 2 hereof shall conclusively be
presumed to have been created, contracted or incurred in reliance upon the
execution of this Guaranty);
(2) demand of payment by any Holder from the Obligor or any other
Person indebted in any manner on or for any of the Indebtedness,
liabilities or obligations hereby guaranteed; and
(3) presentment for the payment by any Holder or any other Person of
the Notes or any other instrument, protest thereof and notice of its
dishonor to any party thereto and to such Guarantor.
The obligations of each Guarantor under this Guaranty and the rights of
any Holder to enforce such obligations by any proceedings, whether by action at
law, suit in equity or otherwise, shall not be subject to any reduction,
limitation, impairment or termination, whether by reason of any claim of any
character whatsoever or otherwise and shall not be subject to any defense,
set-off, counterclaim (other than any compulsory counterclaim), recoupment or
termination whatsoever.
(c) The obligations of the Guarantors hereunder shall be binding upon the
Guarantors and their successors and assigns, and shall remain in full force and
effect irrespective of:
(1) the genuineness, validity, regularity or enforceability of the
Notes, the Note Agreements or any other Financing Agreement or any of the
terms of any thereof, the continuance of any obligation on the part of the
Obligor or any other Person on or in respect of the Notes or under the
Financing Agreements or any other agreement or the power or authority or
the lack of power or authority of the Obligor to issue the Notes or the
Obligor to execute and deliver the Financing Agreements or any other
agreement or of any Guarantor to execute and deliver this Guaranty or to
perform any of its obligations hereunder or the existence or continuance
of an Obligor or any other Person as a legal entity; or
(2) any default, failure or delay, willful or otherwise, in the
performance by the Obligor, any Guarantor or any other Person of any
obligations of any kind or character whatsoever under the Notes, the
Financing Agreements, this Guaranty or any other agreement; or
(3) any creditors' rights, bankruptcy, receivership or other
insolvency proceeding of the Obligor, any Guarantor or any other Person or
in respect of the property of the Obligor, any Guarantor or any other
Person or any merger, consolidation, reorganization, dissolution,
liquidation, the sale of all or substantially all of the assets of or
winding up of the Obligor, any Guarantor or any other Person; or
(4) impossibility or illegality of performance on the part of the
Obligor, any Guarantor or any other Person of its obligations under the
Notes, the Financing Agreements, this Guaranty or any other agreements; or
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(5) in respect of the Obligor or any other Person, any change of
circumstances, whether or not foreseen or foreseeable, whether or not
imputable to the Obligor or any other Person, or other impossibility of
performance through fire, explosion, accident, labor disturbance, floods,
droughts, embargoes, wars (whether or not declared), civil commotion, acts
of God or the public enemy, delays or failure of suppliers or carriers,
inability to obtain materials, action of any Federal or state regulatory
body or agency, change of law or any other causes affecting performance,
or any other force majeure, whether or not beyond the control of the
Obligor or any other Person and whether or not of the kind hereinbefore
specified; or
(6) any attachment, claim, demand, charge, Lien, order, process,
encumbrance or any other happening or event or reason, similar or
dissimilar to the foregoing, or any withholding or diminution at the
source, by reason of any taxes, assessments, expenses, Indebtedness,
obligations or liabilities of any character, foreseen or unforeseen, and
whether or not valid, incurred by or against the Obligor, any Guarantor or
any other Person or any claims, demands, charges or Liens of any nature,
foreseen or unforeseen, incurred by the Obligor, any Guarantor or any
other Person, or against any sums payable in respect of the Notes or under
the Financing Agreements or this Guaranty, so that such sums would be
rendered inadequate or would be unavailable to make the payments herein
provided; or
(7) any order, judgment, decree, ruling or regulation (whether or
not valid) of any court of any nation or of any political subdivision
thereof or any body, agency, department, official or administrative or
regulatory agency of any thereof or any other action, happening, event or
reason whatsoever which shall delay, interfere with, hinder or prevent, or
in any way adversely affect, the performance by the Obligor, any Guarantor
or any other Person of its respective obligations under or in respect of
the Notes, the Financing Agreements, this Guaranty or any other agreement;
or
(8) the failure of any Guarantor to receive any benefit from or as a
result of its execution, delivery and performance of this Guaranty; or
(9) any failure or lack of diligence in collection or protection,
failure in presentment or demand for payment, protest, notice of protest,
notice of default and of nonpayment, any failure to give notice to any
Guarantor of failure of the Obligor, any Guarantor or any other Person to
keep and perform any obligation, covenant or agreement under the terms of
the Notes, the Financing Agreements, this Guaranty or any other agreement
or failure to resort for payment to the Obligor, any Guarantor or to any
other Person or to any other guaranty or to any property, security, Liens
or other rights or remedies; or
(10) the acceptance of any additional security or other guaranty, the
advance of additional money to the Obligor or any other Person, the
renewal or extension of the Notes or amendments, modifications, consents
or waivers with respect to the Notes, the Financing Agreements or any
other agreement, or the sale, release, substitution or exchange of any
security for the Notes; or
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(11) any merger or consolidation of the Obligor, any Guarantor or any
other Person into or with any other Person or any sale, lease, transfer or
other disposition of any of the assets of the Obligor, any Guarantor or
any other Person to any other Person, or any change in the ownership of
any shares or partnership interests of the Obligor, any Guarantor or any
other Person; or
(12) any defense whatsoever that: (i) the Obligor or any other Person
might have to the payment of the Notes (principal, premium, if any, or
interest), other than payment thereof in Federal or other immediately
available funds, or (ii) the Obligor or any other Person might have to the
performance or observance of any of the provisions of the Notes, the Note
Agreements or any other agreement, whether through the satisfaction or
purported satisfaction by the Obligor or any other Person of its debts due
to any cause such as bankruptcy, insolvency, receivership, merger,
consolidation, reorganization, dissolution, liquidation, winding-up or
otherwise, other than the defense of indefeasible payment in full in cash
of the Notes; or
(13) any act or failure to act with regard to the Notes, the
Financing Agreements, this Guaranty or any other agreement or anything
which might vary the risk of any Guarantor or any other Person; or
(14) any other circumstance which might otherwise constitute a
defense available to, or a discharge of, any Guarantor or any other Person
in respect of the obligations of any Guarantor or other Person under this
Guaranty or any other agreement, other than the defense of indefeasible
payment in full in cash of the Notes;
provided that the specific enumeration of the above-mentioned acts, failures or
omissions shall not be deemed to exclude any other acts, failures or omissions,
though not specifically mentioned above, it being the purpose and intent of this
Guaranty and the parties hereto that the obligations of each Guarantor shall be
absolute and unconditional and shall not be discharged, impaired or varied
except by the payment of the principal of, premium, if any, and interest on the
Notes in accordance with their respective terms whenever the same shall become
due and payable as in the Notes provided, at the place specified in and all in
the manner and with the effect provided in the Notes and the Financing
Agreements, as each may be amended or modified from time to time. Without
limiting the foregoing, it is understood that repeated and successive demands
may be made and recoveries may be had hereunder as and when, from time to time,
the Obligor shall default under or in respect of the terms of the Notes or the
Financing Agreements and that notwithstanding recovery hereunder for or in
respect of any given default or defaults by the Obligor under the Notes or the
Financing Agreements, this Guaranty shall remain in full force and effect and
shall apply to each and every subsequent default.
(d) All rights of any Holder may be transferred or assigned at any time in
accordance with the Note Agreements and shall be considered to be transferred or
assigned at any time or from time to time upon the transfer of such Note in
accordance with the Note Agreements whether with or without the consent of or
notice to the Guarantors under this Guaranty.
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(e) To the extent of any payments made under this Guaranty, the Guarantors
shall be subrogated to the rights of the Holder or Holders upon whose Notes such
payment was made, but each Guarantor covenants and agrees that such right of
subrogation shall be junior and subordinate in right of payment to the prior
indefeasible final payment in cash in full of all amounts due and owing by the
Obligor with respect to the Notes and the Financing Agreements and by the
Guarantors under this Guaranty, and the Guarantors shall not take any action to
enforce such right of subrogation, and the Guarantors shall not accept any
payment in respect of such right of subrogation, until all amounts due and owing
by the Obligor under or in respect of the Notes and the Financing Agreements and
all amounts due and owing by the Guarantors hereunder have indefeasibly been
paid in cash in full. If any amount shall be paid to any Guarantor in violation
of the preceding sentence at any time prior to the indefeasible payment in cash
in full of the Notes and all other amounts payable under the Notes, the
Financing Agreements and this Guaranty, such amount shall be held in trust for
the benefit of the Holders and shall forthwith be paid to the Holders to be
credited and applied to the amounts due or to become due with respect to the
Notes and all other amounts payable under the Financing Agreements and this
Guaranty, whether matured or unmatured.
(f) To the extent of any payments made under this Guaranty, each Guarantor
making such payment shall have a right of contribution from the other
Guarantors, but such Guarantor covenants and agrees that such right of
contribution shall be subordinate in right of payment to the rights of the
Holders for which full payment has not been made or provided for and, to that
end, such Guarantor agrees not to claim or enforce any such right of
contribution unless and until all of the Notes and all other sums due and
payable under the Financing Agreements have been fully and irrevocably paid and
discharged.
(g) Each Guarantor agrees that to the extent the Obligor or any other
Person makes any payment on any Note, which payment or any part thereof is
subsequently invalidated, voided, declared to be fraudulent or preferential, set
aside, recovered, rescinded or is required to be retained by or repaid to a
trustee, receiver, or any other Person under any bankruptcy code, common law, or
equitable cause, then and to the extent of such payment, the obligation or the
part thereof intended to be satisfied shall be revived and continued in full
force and effect with respect to the Guarantors' obligations hereunder, as if
said payment had not been made. The liability of the Guarantors hereunder shall
not be reduced or discharged, in whole or in part, by any payment to any Holder
from any source that is thereafter paid, returned or refunded in whole or in
part by reason of the assertion of a claim of any kind relating thereto,
including, but not limited to, any claim for breach of contract, breach of
warranty, preference, illegality, invalidity, or fraud asserted by any account
debtor or by any other Person.
(h) No Holder shall be under any obligation: (1) to marshal any assets in
favor of the Guarantors or in payment of any or all of the liabilities of the
Obligor under or in respect of the Notes or the obligations of the Guarantors
hereunder or (2) to pursue any other remedy that the Guarantors may or may not
be able to pursue themselves and that may lighten the Guarantors' burden, any
right to which each Guarantor hereby expressly waives.
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SECTION 5. REPRESENTATIONS AND WARRANTIES OF THE GUARANTORS
Each Guarantor represents and warrants to each Holder 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 on (1) the business,
operations, affairs, financial condition, assets or properties of the Obligor
and its subsidiaries, taken as a whole, or (2) the ability of such Guarantor to
perform its obligations under this Guaranty, or (3) the validity or
enforceability of this Guaranty (herein in this SECTION 5, 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 (1) applicable
bankruptcy, insolvency, reorganization, moratorium or other similar laws
affecting the enforcement of creditors' rights generally and (2) general
principles of equity (regardless of whether such enforceability is considered in
a proceeding in equity or at law).
(c) The execution, delivery and performance by such Guarantor of this
Guaranty will not (1) contravene, result in any breach of, or constitute a
default under, or result in the creation of any Lien 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, (2) conflict with
or result in a breach of any of the terms, conditions or provisions of any
order, judgment, decree, or ruling of any court, arbitrator or governmental
authority applicable to such Guarantor or any of its Subsidiaries or (3) violate
any provision of any statute or other rule or regulation of any Governmental
Authority applicable to the 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,
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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 all Obligors, 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.
SECTION 6. GUARANTOR COVENANTS.
From and after the date of execution of the First Amendment Agreement by
the Obligor and continuing so long as any amount remains unpaid thereon each
Guarantor agrees to comply with the terms and provisions of Section 5 of the
Note Agreements, insofar as such provisions apply to such Guarantor, as if said
Sections were set forth herein in full.
SECTION 7. GOVERNING LAW
(a) THIS GUARANTY SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF ILLINOIS APPLICABLE THEREIN.
(b) Each Guarantor hereby (i) irrevocably submits and consents to the
jurisdiction of the federal court located in Illinois (or, if such court lacks
jurisdiction, the State courts located therein), and irrevocably agrees that all
actions or proceedings relating to this Guaranty may be litigated in such
courts, and (ii) waives any objection which it may have based on improper venue
or forum non conveniens to the conduct of any proceeding in any such court and
waives personal service of any and all process upon it, and (iii) consents that
all such service of process be made by delivery to it at the address of such
Person set forth in SECTION 11 below. Nothing contained in this section shall
affect the right of any Holder to serve legal process in any other manner
permitted by law or to bring any action or proceeding in the courts of any
jurisdiction against a Guarantor or to enforce a judgment obtained in the courts
of any other jurisdiction.
(c) THE PARTIES HERETO WAIVE ANY RIGHT TO HAVE A JURY PARTICIPATE IN
RESOLVING ANY DISPUTE, WHETHER SOUNDING IN CONTRACT, TORT, OR OTHERWISE, BETWEEN
THEM ARISING OUT OF, CONNECTED WITH, RELATED TO OR INCIDENTAL TO THE
RELATIONSHIP ESTABLISHED BETWEEN THEM IN CONNECTION WITH THIS GUARANTY, ANY
FINANCING AGREEMENT OR ANY OTHER INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR
DELIVERED IN CONNECTION HEREWITH OR THE TRANSACTIONS RELATED HERETO. THE PARTIES
HERETO HEREBY AGREE AND CONSENT THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF
ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A JURY AND THAT ANY OF THEM MAY
FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS GUARANTY WITH ANY COURT AS
WRITTEN EVIDENCE OF THE CONSENT OF THE PARTIES HERETO TO THE WAIVER OF THEIR
RIGHT TO TRIAL BY JURY.
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SECTION 8. AMENDMENTS, WAIVERS AND CONSENTS.
(a) This Guaranty may be amended, and the observance of any term hereof
may be waived (either retroactively or prospectively), with (and only with) the
written consent of each Guarantor and the Holders.
(b) The Guarantors will provide each Holder (irrespective of the amount of
Notes then owned by it) with sufficient information, sufficiently far in advance
of the date a decision is required, to enable such Holder to make an informed
and considered decision with respect to any proposed amendment, waiver or
consent in respect of any of the provisions hereof. The Guarantors will deliver
executed or true and correct copies of each amendment, waiver or consent
effected pursuant to the provisions of this SECTION 8 to each Holder promptly
following the date on which it is executed and delivered by, or receives the
consent or approval of, the Required Holders.
(c) The Obligors will not directly or indirectly pay or cause to be paid
any remuneration, whether by way of fee or otherwise, or grant any security, to
any Holder as consideration for or as an inducement to the entering into by any
Holder of any waiver or amendment of any of the terms and provisions hereof
unless such remuneration is concurrently paid, or security is concurrently
granted, on the same terms, ratably to each Holder even if such Holder did not
consent to such waiver or amendment.
(d) Any amendment or waiver consented to as provided in this SECTION 8
applies equally to all Holders and is binding upon them and upon each future
holder and upon the Guarantors. No such amendment or waiver will extend to or
affect any obligation, covenant or agreement not expressly amended or waived or
impair any right consequent thereon. No course of dealing between the Guarantors
and any Holder nor any delay in exercising any rights hereunder shall operate as
a waiver of any rights of any Holder. As used herein, the term "this Guaranty"
and references thereto shall mean this Guaranty as it may from time to time be
amended or supplemented.
(e) Solely for the purpose of determining whether the Holders of the
requisite percentage of the aggregate principal amount of Notes then outstanding
approved or consented to any amendment, waiver or consent to be given under this
Guaranty, Notes directly or indirectly owned by any Guarantor, the Obligors or
any of their respective subsidiaries or Affiliates shall be deemed not to be
outstanding.
SECTION 9. NOTICES
All notices and communications provided for hereunder shall be in writing
and sent (a) by telefacsimile if the sender on the same day sends a confirming
copy of such notice by a recognized overnight delivery service (charges
prepaid), or (b) by registered or certified mail with return receipt requested
(postage prepaid), or (c) by a recognized overnight delivery service (with
charges prepaid). Any such notice must be sent:
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(1) if to any Holder or such Holder's nominee, to such Holder or
such Holder's nominee at the address specified for such communications in
Schedule I to the Note Agreements, or at such other address as such Holder
or such Holder's nominee shall have specified to any Obligor in writing,
(2) if to any Guarantor, to such Guarantor c/o Cleveland-Cliffs Inc
at its address set forth at the beginning of the Note Agreements to the
attention of Chief Financial Officer, or at such other address as such
Guarantor shall have specified to the Holders in writing.
Notices under this SECTION 9 will be deemed given only when actually received.
SECTION 10. MISCELLANEOUS.
(a) No remedy herein conferred upon or reserved to any Holder is intended
to be exclusive of any other available remedy or remedies, but each and every
such remedy shall be cumulative and shall be in addition to every other remedy
given under this Guaranty now or hereafter existing at law or in equity. No
delay or omission to exercise any right or power accruing upon any default,
omission or failure of performance hereunder shall impair any such right or
power or shall be construed to be a waiver thereof but any such right or power
may be exercised from time to time and as often as may be deemed expedient. In
order to entitle any Holder to exercise any remedy reserved to it under this
Guaranty, it shall not be necessary for such Holder to physically produce its
Note in any proceedings instituted by it or to give any notice, other than such
notice as may be herein expressly required.
(b) The Guarantors will pay all sums becoming due under this Guaranty by
the method and at the address specified in the Note Agreements, or by such other
method or at such other address as any Holder shall have from time to time
specified to the Guarantors in writing for such purpose, without the
presentation or surrender of this Guaranty or any Note.
(c) Any provision of this Guaranty that is prohibited or unenforceable in
any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall (to the full extent permitted by law) not invalidate or
render unenforceable such provision in any other jurisdiction.
(d) If the whole or any part of this Guaranty shall be now or hereafter
become unenforceable against any one or more of the Guarantors for any reason
whatsoever or if it is not executed by any one or more of the Guarantors, this
Guaranty shall nevertheless be and remain fully binding upon and enforceable
against each other Guarantor as if it had been made and delivered only by such
other Guarantors.
(e) This Guaranty shall be binding upon each Guarantor and its successors
and assigns and shall inure to the benefit of each Holder and its successors and
assigns so long as its Notes remain outstanding and unpaid.
-11-
(f) This Guaranty may be executed in any number of counterparts, each of
which shall be an original but all of which together shall constitute one
instrument. Each counterpart may consist of a number of copies hereof, each
signed by less than all, but together signed by all, of the parties hereto.
SECTION 11. INDEMNITY.
To the fullest extent of applicable law, each Guarantor shall indemnify
and save each Holder harmless from and against any losses (other than any such
losses created as a result of the gross negligence or willful misconduct of any
Holder) which may arise by virtue of any of the obligations hereby guaranteed
being or becoming for any reason whatsoever in whole or in part void, voidable,
contrary to law, invalid, ineffective or otherwise unenforceable by the Holder
or any of them in accordance with its terms (all of the foregoing collectively,
an "Indemnifiable Circumstance"). For greater certainty, these losses shall
include without limitation all obligations hereby guaranteed which would have
been payable by the Obligor but for the existence of an Indemnifiable
Circumstance; provided, however, that the extent of the Guarantor's aggregate
liability under this SECTION 11 shall not at any time exceed the amount (but for
any Indemnifiable Circumstance) otherwise guaranteed pursuant to SECTION 2.
[Intentionally Blank]
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IN WITNESS WHEREOF, the undersigned has caused this Guaranty to be duly
executed by an authorized representative as of this 15th day of December, 2002.
CLEVELAND-CLIFFS ORE CORPORATION.
By /s/ X. Xxxxx
---------------------------------
Name: Xxxxxx Xxxxx
Title: Treasurer
CLEVELAND-CLIFFS IRON COMPANY.
By /s/ X. Xxxxx
---------------------------------
Name: Xxxxxx Xxxxx
Title: Treasurer
NORTHSHORE SALES COMPANY
By /s/ X. Xxxxx
---------------------------------
Name: Xxxxxx Xxxxx
Title: Treasurer
WABUSH IRON CO. LIMITED
By /s/ X. Xxxxx
---------------------------------
Name: Xxxxxx Xxxxx
Title: Treasurer
CLIFFS OIL SHALE CORP.
By /s/ X. Xxxxx
---------------------------------
Name: Xxxxxx Xxxxx
Title: Treasurer
CLIFFS ERIE L.L.C.
By /s/ X. Xxxxx
---------------------------------
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Name: Xxxxxx Xxxxx
Title: Treasurer
CLIFFS MINING COMPANY
By /s/ X. Xxxxx
---------------------------------
Name: Xxxxxx Xxxxx
Title: Treasurer
CLIFFS MINING SERVICES COMPANY
By /s/ X. Xxxxx
---------------------------------
Name: Xxxxxx Xxxxx
Title: Treasurer
CLIFFS REDUCED IRON CORPORATION
By /s/ X. Xxxxx
---------------------------------
Name: Xxxxxx Xxxxx
Title: Treasurer
CLIFFS REDUCED IRON MANAGEMENT COMPANY
By /s/ X. Xxxxx
---------------------------------
Name: Xxxxxx Xxxxx
Title: Treasurer
-14-
IRONUNITS LLC
By /s/ X. Xxxxx
---------------------------------
Name: Xxxxxx Xxxxx
Title: Treasurer
NORTHSHORE MINING COMPANY
By /s/ X. Xxxxx
---------------------------------
Name: Xxxxxx Xxxxx
Title: Treasurer
SEIGNELAY RESOURCES, INC.
By /s/ X. Xxxxx
---------------------------------
Name: Xxxxxx Xxxxx
Title: Treasurer
SILVER BAY POWER COMPANY
By /s/ X. Xxxxx
---------------------------------
Name: Xxxxxx Xxxxx
Title: Treasurer
THE CLEVELAND-CLIFFS STEAMSHIP COMPANY
By /s/ X. Xxxxx
---------------------------------
Name: Xxxxxx Xxxxx
Title: Treasurer
CLIFFS BIWABIK ORE CORPORATION
By /s/ X. Xxxxx
---------------------------------
Name: Xxxxxx Xxxxx
Title: Treasurer
-15-
PICKANDS HIBBING CORPORATION
By /s/ X. Xxxxx
---------------------------------
Name: Xxxxxx Xxxxx
Title: Treasurer
SYRACUSE MINING COMPANY
By /s/ X. Xxxxx
---------------------------------
Name: Xxxxxx Xxxxx
Title: Treasurer
CLIFFS EMPIRE, INC.
By /s/ X. Xxxxx
---------------------------------
Name: Xxxxxx Xxxxx
Title: Treasurer
CLIFFS IH EMPIRE, INC.
By /s/ X. Xxxxx
---------------------------------
Name: Xxxxxx Xxxxx
Title: Treasurer
CLIFFS MARQUETTE, INC.
By /s/ X. Xxxxx
---------------------------------
Name: Xxxxxx Xxxxx
Title: Treasurer
CLIFFS MC EMPIRE, INC.
By /s/ X. Xxxxx
Name: Xxxxxx Xxxxx
---------------------------------
Title: Treasurer
-16-
CLIFFS TIOP, INC.
By /s/ X. Xxxxx
---------------------------------
Name: Xxxxxx Xxxxx
Title: Treasurer
LAKE SUPERIOR & ISHPEMING RAILROAD
COMPANY
By /s/ X. Xxxxx
---------------------------------
Name: Xxxxxx Xxxxx
Title: Assistant Treasurer
LASCO DEVELOPMENT CORPORATION
By /s/ X. Xxxxx
---------------------------------
Name: Xxxxxx Xxxxx
Title: Assistant Treasurer
EMPIRE-CLIFFS PARTNERSHIP
BY: CLIFFS EMPIRE, INC.,
Its General Partner
By: /s/ X. Xxxxx
---------------------------------
Name: Xxxxxx Xxxxx
Title: Treasurer
MARQUETTE IRON MINING PARTNERSHIP
BY: CLEVELAND-CLIFFS ORE CORPORATION
Its General Partner
By: /s/ X. Xxxxx
---------------------------------
Name: Xxxxxx Xxxxx
Title: Treasurer
-17-
WHEELING-PITTSBURGH/CLIFFS PARTNERSHIP
BY: CLIFFS EMPIRE, INC.,
Its General Partner
By: /s/ X. Xxxxx
---------------------------------
Name: Xxxxxx Xxxxx
Title: Treasurer
CLIFFS SYNFUEL CORP.
By: /s/ X. Xxxxx
---------------------------------
Name: Xxxxxx Xxxxx
Title: Treasurer
-18-
SUBSIDIARY GUARANTY SUPPLEMENT
To the Holders of the Notes (as
hereinafter defined)
Ladies and Gentlemen:
CLEVELAND-CLIFFS INC, a Delaware corporation (the "Obligor"), issued
$70,000,000 aggregate principal amount of its 7.00% Senior Notes, due December
15, 2005 pursuant to those certain separate Note Agreements, each dated as of
December 15, 1995 (the "Existing Note Agreements") among the Obligor and each of
the purchasers named on Schedule I thereto (the "Initial Note Purchasers,"
together with their successors, assigns or any other future holder of the Notes,
the "Holders").
The Obligor desires the Holders to enter into that certain First Amendment
Agreement dated as of December 15, 2002 (the Existing Note Agreements, as
amended by the First Amendment Agreement, and as amended from time to time are
hereby referred to as the "Note Agreements"), the Holders required that
________________ enter into a Subsidiary Guaranty Agreement as security for the
Notes (the "Subsidiary Guaranty").
Pursuant to Section 5.21 of the Note Agreements, the Obligor has agreed to
cause the undersigned, _________________, a ___________________ organized under
the laws of ____________________ (the "Additional Guarantor"), to join in the
Subsidiary Guaranty. In accordance with the requirements of the Subsidiary
Guaranty, the Additional Guarantor desires to amend the definition of Guarantor
(as the same may have been heretofore amended) set forth in the Subsidiary
Guaranty attached hereto so that at all times from and after the date hereof,
the Additional Guarantor shall be jointly and severally liable as set forth in
the Subsidiary Guaranty for the obligations of the Obligor under the Financing
Agreements and Notes to the extent and in the manner set forth in the Subsidiary
Guaranty.
The undersigned is the duly elected __________________ of the Additional
Guarantor, a Subsidiary or Affiliate of the Obligor, and is duly authorized to
execute and deliver this Guaranty Supplement to each of you. The execution by
the undersigned of this Guaranty Supplement shall evidence its consent to and
acknowledgment and approval of the terms set forth herein and in the Subsidiary
Guaranty and by such execution the Additional Guarantor shall be deemed to have
made in favor of the Holders the representations and warranties set forth in
Section 5 of the Subsidiary Guaranty.
Upon execution of this Subsidiary Guaranty Supplement, the Subsidiary
Guaranty shall be deemed to be amended as set forth above. Except as amended
herein, the terms and provisions of the Subsidiary Guaranty are hereby ratified,
confirmed and approved in all respects.
EXHIBIT A
(to Subsidiary Guaranty)
Any and all notices, requests, certificates and other instruments
(including the Notes) may refer to the Subsidiary Guaranty without making
specific reference to this Subsidiary Guaranty Supplement, but nevertheless all
such references shall be deemed to include this Subsidiary Guaranty Supplement
unless the context shall otherwise require.
Dated: _________________, _____.
[NAME OF ADDITIONAL GUARANTOR]
By
Its
-2-
