exv10wb






Exhibit 10(b)



EXECUTION VERSION




TERM LOAN AGREEMENT




Among



CLIFFS NATURAL RESOURCES INC.



VARIOUS LENDERS



FROM TIME TO TIME PARTY HERETO



JPMORGAN CHASE BANK, N.A.



as Administrative Agent



MERRILL LYNCH, PIERCE, FENNER & SMITH

INCORPORATED



and




CITIGROUP GLOBAL MARKETS INC.



as Syndication Agents



J.P. MORGAN SECURITIES LLC,




MERRILL LYNCH, PIERCE, FENNER & SMITH

INCORPORATED



and



CITIGROUP GLOBAL MARKETS INC.



as Joint Lead Arrangers and Joint Bookrunners



and




FIFTH THIRD BANK, PNC BANK, N.A.,



BANK OF MONTREAL, THE BANK OF NOVA SCOTIA,



COMMONWEALTH BANK OF AUSTRALIA, KEYBANK NATIONAL ASSOCIATION,



RBS CITIZENS, N.A. and U.S. BANK NATIONAL ASSOCIATION



as Documentation Agents



Dated as of March 4, 2011



 









 




TABLE
OF CONTENTS
 






	 	 	 	 	 
	 	 	Page	 
	ARTICLE 1

Definitions; Interpretation

	 
	 	 	 	 
	Section 1.01. Definitions
	 	 	1	 
	Section 1.02. Interpretation
	 	 	27	 
	Section 1.03. Change in Accounting Principles
	 	 	27	 
	Section 1.04. Rounding
	 	 	27	 
	 
	 	 	 	 
	ARTICLE 2

The Credit Facilities

	 
	 	 	 	 
	Section 2.01. Commitments
	 	 	28	 
	Section 2.02. Applicable Interest Rates
	 	 	28	 
	Section 2.03. Manner of Borrowing Loans and Applicable Interest Rates
	 	 	29	 
	Section 2.04. Minimum Borrowing Amounts; Maximum Eurodollar Loans
	 	 	31	 
	Section 2.05. Repayment of Loans
	 	 	31	 
	Section 2.06. Prepayments and Commitment Reductions
	 	 	32	 
	Section 2.07. Payments
	 	 	32	 
	Section 2.08. Evidence of Indebtedness
	 	 	34	 
	Section 2.09. Incremental Loans
	 	 	34	 
	Section 2.10. Undrawn Commitment Fees
	 	 	35	 
	ARTICLE 3

Conditions Precedent

	Section 3.01. Conditions Precedent To Effective Date
	 	 	36	 
	Section 3.02. Conditions Precedent to Closing Date
	 	 	36	 
	ARTICLE 4

The Guaranties

	Section 4.01. Guaranties
	 	 	38	 
	Section 4.02. Further Assurances
	 	 	39	 
	ARTICLE 5

Representations and Warranties

	Section 5.01. Organization and Qualification
	 	 	39	 
	Section 5.02. Authority and Enforceability
	 	 	39	 
	Section 5.03. Financial Reports
	 	 	40	 
	Section 5.04. No Material Adverse Change
	 	 	40	 
	Section 5.05. Litigation and Other Controversies
	 	 	40	 
















 






	 	 	 	 	 
	 	 	Page	 
	Section 5.06. True and Complete Disclosure
	 	 	40	 
	Section 5.07. Use of Proceeds; Margin Stock
	 	 	41	 
	Section 5.08. Taxes
	 	 	41	 
	Section 5.09. ERISA
	 	 	41	 
	Section 5.10. Subsidiaries
	 	 	41	 
	Section 5.11. Compliance with Laws
	 	 	42	 
	Section 5.12. Environmental Matters
	 	 	42	 
	Section 5.13. Investment Company
	 	 	42	 
	Section 5.14. Intellectual Property
	 	 	42	 
	Section 5.15. Good Title
	 	 	43	 
	Section 5.16. Labor Relations
	 	 	43	 
	Section 5.17. Capitalization
	 	 	43	 
	Section 5.18. Other Agreements
	 	 	43	 
	Section 5.19. Governmental Authority and Licensing
	 	 	43	 
	Section 5.20. Approvals
	 	 	43	 
	Section 5.21. Affiliate Transactions
	 	 	44	 
	Section 5.22. Solvency
	 	 	44	 
	Section 5.23. Foreign Assets Control Regulations and Anti-Money Laundering
	 	 	44	 
	 
	ARTICLE 6

Covenants     

	Section 6.01. Information Covenants
	 	 	45	 
	Section 6.02. Inspections
	 	 	48	 
	Section 6.03. Maintenance of Property, Insurance, Environmental Matters, etc
	 	 	48	 
	Section 6.04. Preservation of Existence
	 	 	49	 
	Section 6.05. Compliance with Laws
	 	 	49	 
	Section 6.06. ERISA
	 	 	49	 
	Section 6.07. Payment of Taxes
	 	 	50	 
	Section 6.08. Books and Records
	 	 	50	 
	Section 6.09. Contracts with Affiliates
	 	 	50	 
	Section 6.10. No Changes in Fiscal Year
	 	 	50	 
	Section 6.11. Change in the Nature of Business
	 	 	50	 
	Section 6.12. Indebtedness
	 	 	51	 
	Section 6.13. Liens
	 	 	52	 
	Section 6.14. Consolidation, Merger, Sale of Assets, etc
	 	 	54	 
	Section 6.15. Restricted Investments Prohibited
	 	 	55	 
	Section 6.16. Dividends and Certain Other Restricted Payments
	 	 	56	 
	Section 6.17. OFAC
	 	 	56	 
	Section 6.18. Financial Covenants
	 	 	56	 
	Section 6.19. Limitation on Non-Material Subsidiaries
	 	 	56	 
	Section 6.20. Limitation on Assets and Operations of Cliffs Sonoma Entities
	 	 	56	 
	Section 6.21. Repayment of Target Indebtedness
	 	 	57	 






ii









 






	 	 	 	 	 
	 	 	Page	 
	ARTICLE 7

 Events of Default and Remedies

	 
	Section 7.01. Events of Default
	 	 	57	 
	Section 7.02. Non-Bankruptcy Defaults
	 	 	59	 
	Section 7.03. Bankruptcy Defaults
	 	 	59	 
	Section 7.04. Notice of Default
	 	 	59	 
	Section 7.05. Expenses
	 	 	60	 
	ARTICLE 8

 Change in Circumstances and Contingencies

	Section 8.01. Funding Indemnity
	 	 	60	 
	Section 8.02. Illegality
	 	 	61	 
	Section 8.03. Inability to Determine Rates
	 	 	61	 
	Section 8.04. Increased Costs; Reserves on Eurodollar Loans
	 	 	61	 
	Section 8.05. Substitution of Lenders
	 	 	63	 
	Section 8.06. Discretion of Lender as to Manner of Funding
	 	 	64	 
	 
	ARTICLE 9

 The Administrative Agent

	Section 9.01. Appointment and Authority
	 	 	64	 
	Section 9.02. Rights as a Lender
	 	 	64	 
	Section 9.03. Exculpatory Provisions
	 	 	64	 
	Section 9.04. Reliance by Administrative Agent
	 	 	65	 
	Section 9.05. Delegation of Duties
	 	 	66	 
	Section 9.06. Resignation of Administrative Agent
	 	 	66	 
	Section 9.07. Non-Reliance on Administrative Agent and Other Lenders
	 	 	67	 
	Section 9.08. No Other Duties, etc
	 	 	67	 
	Section 9.09. Guaranty Matters
	 	 	67	 
	 
	     ARTICLE 10

 Miscellaneous

	 
	Section 10.01. Taxes
	 	 	67	 
	Section 10.02. No Waiver, Cumulative Remedies
	 	 	71	 
	Section 10.03. Non-Business Days
	 	 	71	 
	Section 10.04. Documentary Taxes
	 	 	72	 
	Section 10.05. Survival of Representations
	 	 	72	 
	Section 10.06. Survival of Indemnities
	 	 	72	 
	Section 10.07. Sharing of Set-Off
	 	 	72	 
	Section 10.08. Notices; Effectiveness; Electronic Communication
	 	 	72	 
	Section 10.09. Counterparts
	 	 	75	 
	Section 10.10. Successors and Assigns
	 	 	75	 
	Section 10.11. Amendments
	 	 	79	 
	Section 10.12. Headings
	 	 	80	 






iii









 






	 	 	 	 	 
	 	 	Page	 
	Section 10.13. Expenses; Indemnity; Damage Waiver
	 	 	80	 
	Section 10.14. Set-off
	 	 	82	 
	Section 10.15. Payments Set Aside
	 	 	82	 
	Section 10.16. Treatment of Certain Information; Confidentiality
	 	 	83	 
	Section 10.17. Entire Agreement
	 	 	84	 
	Section 10.18. Severability of Provisions
	 	 	84	 
	Section 10.19. Excess Interest
	 	 	84	 
	Section 10.20. Construction
	 	 	85	 
	Section 10.21. USA Patriot Act
	 	 	85	 
	Section 10.22. Governing Law; Jurisdiction; etc.
	 	 	85	 
	Section 10.23. Waiver of Jury Trial
	 	 	86	 
	Section 10.24. No Advisory or Fiduciary Responsibility
	 	 	87	 
	Section 10.25. Binding Effect
	 	 	87	 
	 
	Exhibit A  —  Notice of Borrowing
	 	 	 	 
	Exhibit B  —  Notice of Continuation/Conversion
	 	 	 	 
	Exhibit C  —  Term Note
	 	 	 	 
	Exhibit D  —  Compliance Certificate
	 	 	 	 
	Exhibit E  —  Assignment and Assumption
	 	 	 	 
	Schedule 1  —  Commitments
	 	 	 	 
	Schedule 5.3  —  Contingent Liabilities
	 	 	 	 
	Schedule 5.5  —  Litigation
	 	 	 	 
	Schedule 5.9  —  Welfare Plans
	 	 	 	 
	Schedule 5.10(a)  —  Restricted Subsidiaries
	 	 	 	 
	Schedule 5.10(b)  —  Unrestricted Subsidiaries
	 	 	 	 
	Schedule 5.17  —  Capitalization
	 	 	 	 
	Schedule 5.21  —  Affiliates Transactions
	 	 	 	 
	Schedule 6.13  —  Existing Liens
	 	 	 	 
	Schedule 6.15  —  Permitted Investments
	 	 	 	 
	Schedule 6.15(A)  —  Existing Investments in Non-Joint Ventures
	 	 	 	 
	Schedule 10.8  —  Administrative Agent’s Office; Certain Addresses
for Notices
	 	 	 	 







iv











 





TERM LOAN AGREEMENT




     This Term Loan Agreement is entered into as of March 4, 2011, by and among Cliffs Natural
Resources Inc., an Ohio corporation (the “Borrower”), the various institutions from time to time
party to this Agreement as Lenders, and JPMorgan Chase Bank, N.A. (“JPMCB”), as Administrative
Agent.



     The Borrower has requested, and the Lenders have agreed to extend, a term loan on the terms
and conditions set forth in this Agreement. In consideration of the mutual agreements set forth in
this Agreement, the parties to this Agreement agree as follows:



ARTICLE 1

Definitions; Interpretation



     Section 1.01. Definitions. The following terms when used herein shall have the following
meanings:



     “Acquisition” means any transaction or series of related transactions for the purpose of or
resulting, directly or indirectly, in (a) the acquisition of all or substantially all of the assets
of a Person, or of any business or division of a Person, (b) the acquisition of in excess of 50% of
the equity interests of any Person (other than a Person that is a Subsidiary of the Borrower), or
(c) a merger or consolidation or any other combination with another Person (other than a Person
that is a Subsidiary of the Borrower), provided that the Borrower or a Subsidiary of the Borrower
is the surviving entity.



     “Additional Lender” is defined in Section 2.09 hereof.



     “Administrative Agent” means JPMorgan Chase Bank, N.A., as contractual representative for
itself and the other Lenders and any successor pursuant to Section 9.06 hereof.



     “Administrative Agent’s Office” means the Administrative Agent’s address and, as appropriate,
account as set forth on Schedule 10.8 or such other address or account as the Administrative Agent
may from time to time notify to the Borrower and the Lenders.



     “Administrative Questionnaire” means an Administrative Questionnaire in a form supplied by the
Administrative Agent.



     “Affected Lender” is defined in Section 8.05 hereof.



     “Affiliate” means any Person directly or indirectly controlling or controlled by, or under
direct or indirect common control with, another Person. A Person shall be deemed to control
another Person for purposes of this definition if such Person possesses, directly or indirectly,
the power to direct, or cause the



 









 




direction of, the management and policies of the other Person, whether through the ownership of
voting securities, common directors, trustees or officers, by contract or otherwise; provided that,
in any event for purposes of this definition, any Person that owns, directly or indirectly, 30% or
more of the securities having the ordinary voting power for the election of directors or governing
body of a corporation or 30% or more of the partnership or other ownership interests of any other
Person (other than as a limited partner of such other Person) will be deemed to control such
corporation or other Person.




     “Agent Parties” is defined in Section 10.08(c) hereof.



     “Agreement” means this Term Loan Agreement, as the same may be amended, modified, restated or
supplemented from time to time pursuant to the terms hereof.



     “Amapa” means MMX Amapá Mineração Ltda., a company organized under the Laws of Brazil.



     “Amapa Investment” means, collectively, all Investments by the Borrower and its Subsidiaries
in Amapa.



     “Applicable Margin” means, from time to time, the applicable rate per annum set forth below:



Initial Loans




     Prior to delivery by the Borrower of its consolidated financial statements for the period
ending June 30, 2011, 0.625% for Base Rate Loans and 1.625% for Eurodollar Loans.



     Thereafter, the applicable rate per annum set forth in the table below based on the applicable
Leverage Ratio as specified below:



	 	 	 	 	 	 	 	 	 
	Leverage Ratio	 	Base Rate Loans	 	Eurodollar Loans
	Less than 1.00:1.00

	 	 	0	%	 	 	.875	%
	Greater than or equal to 1.00:1.00
and less than 1.50:1.00

	 	 	0.125	%	 	 	1.125	%
	Greater than or equal to 1.50:1.00
and less than 2.00:1.00

	 	 	0.375	%	 	 	1.375	%
	Greater than or equal to 2.00:1.00
and less than 2.75:1.00

	 	 	0.625	%	 	 	1.625	%
	Greater than or equal to 2.75:1.00

	 	 	0.875	%	 	 	1.875	%






2









 






     For purposes of the foregoing, each change in the Applicable Margin with respect to any Loan
resulting from a change in the Leverage Ratio shall be effective during the period commencing on
and including the Business Day following the date of delivery to the Administrative Agent pursuant
to Section 6.01 of the consolidated financial statements indicating such change and ending on the
date immediately preceding the effective date of the next such change; provided that such
Applicable Margin shall be based on the rates per annum set forth above opposite the words “Greater
than or equal to 2.75:1.00” if the Borrower fails to deliver the consolidated financial statements
required to be delivered pursuant to Section 6.01 or within the time periods specified herein for
such delivery, during the period commencing on and including the day of the occurrence of a Default
resulting from such failure and until the delivery thereof.



     In the event that any financial statement or compliance certificate delivered pursuant to
Section 6.01 is inaccurate (regardless of whether this Agreement is in effect when such inaccuracy
is discovered), and such inaccuracy, if corrected, would have led to the application of a higher
Applicable Margin for any period (an “Applicable Period”) than the Applicable Margin applied for
such Applicable Period, then (i) the Borrower shall promptly deliver to the Administrative Agent a
corrected financial statement and a corrected compliance certificate for such Applicable Period,
(ii) the Applicable Margin shall be determined based on the corrected compliance certificate for
such Applicable Period, and (iii) the Borrower shall promptly pay to the Administrative Agent (for
the account of the Lenders during the Applicable Period or their successors and assigns) the
accrued additional interest owing as a result of such increased Applicable Margin for such
Applicable Period. This paragraph shall survive the termination of this Agreement.



Incremental Loans




     As specified in the applicable Incremental Amendment.



     “Approved Fund” means any Fund that is administered or managed by (a) a Lender, (b) an
Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers or manages a
Lender.



     “Arrangement Agreement” means that Arrangement Agreement, dated as of January 11, 2011,
between the Borrower and the Target, as amended, restated, supplemented or otherwise modified from
time to time (subject to Section 3.02(h)).



     “Arrangement Agreement Representations” means such of the representations made by or on behalf
of the Target in the Arrangement Agreement as are material to the interests of the Lenders (as
reasonably determined by the Administrative Agent).



3









 





     “Arrangement Effective Date” means the date upon which the Arrangement (as defined in the
Arrangement Agreement) becomes effective as established by the date of issue shown on the
certificate giving effect to the Arrangement (as defined in the Arrangement Agreement) to be issued
by the Director after the Articles of Arrangement have been filed.



     “Articles of Arrangement” is defined in the Arrangement Agreement.



     “Assignee Group” means two or more Eligible Assignees that are Affiliates of one another or
two or more Approved Funds managed by the same investment advisor.



     “Assignment and Assumption” means an assignment and assumption entered into by a Lender and an
Eligible Assignee (with the consent of any party whose consent is required by Section 10.10), and
accepted by the Administrative Agent, in substantially the form of Exhibit E or any other form
approved by the Administrative Agent.



     “Authorized Representative” means those persons shown on the list of officers provided by the
Borrower pursuant to Article 3 hereof or on any update of any such list provided by the Borrower to
the Administrative Agent, or any further or different officers of the Borrower so named by any
Authorized Representative of the Borrower in a written notice to the Administrative Agent.



     “Base Rate” means for any day a fluctuating rate per annum equal to the highest of (a) the
Federal Funds Rate plus 1/2 of 1%, (b) the sum of 1% plus the rate for deposits in U.S. Dollars
with a one-month maturity, as published by Reuters (or other commercially available source
providing quotations of BBA LIBOR as designated by the Administrative Agent from time to time) at
approximately 11:00 a.m., London time, on such day (or if such day is not a Business Day, on the
immediately preceding Business Day) and (c) the rate of interest in effect for such day as publicly
announced from time to time by JPMCB as its prime rate in effect at its office located at 270 Park
Avenue, New York, New York. The “prime rate” is a rate set by JPMCB based upon various factors
including JPMCB’s costs and desired return, general economic conditions and other factors, and is
used as a reference point for pricing some loans, which may be priced at, above, or below such
announced rate. Any change in such rate announced by JPMCB shall take effect at the opening of
business on the day specified in the public announcement of such change.



     “Base Rate Loan” means a Loan bearing interest at a rate specified in Section 2.02(a) hereof.



     “Borrower” is defined in the introductory paragraph of this Agreement.



     “Borrower Materials” is defined in Section 6.01 hereof.



4









 





     “Borrowing” means the total of Loans of a single type and Tranche advanced, continued for an
additional Interest Period, or converted from a different type into such type by the Lenders on a
single date and, in the case of Eurodollar Loans, for a single Interest Period. Borrowings of
Loans are made and maintained ratably from each of the Lenders. A Borrowing is “advanced” on the
day Lenders advance funds comprising such Borrowing to the Borrower, is “continued” on the date a
new Interest Period for the same type of Loans commences for such Borrowing, and is “converted”
when such Borrowing is changed from one type of Loan to the other, all as requested by the Borrower
pursuant to Section 2.03(a) hereof.



     “Business Day” means a day of the year (i) on which banks are not required or authorized to
close in New York, New York or Chicago, Illinois and (ii) if the applicable Business Day relates to
any Eurodollar Loan, on which dealings in deposits in U.S. Dollars are carried on in the London
interbank market.



     “Capital Expenditures” means, with respect to any Person for any period, the aggregate amount
of all expenditures (whether paid in cash or accrued as a liability) by such Person during that
period for the acquisition or leasing (pursuant to a Capital Lease) of fixed or capital assets or
additions to property, plant, or equipment (including replacements and improvements) which should
be capitalized on the balance sheet of such Person in accordance with GAAP.



     “Capital Lease” means any lease of Property which in accordance with GAAP is required to be
capitalized on the balance sheet of the lessee.



     “Capitalized Lease Obligation” means, for any Person, the amount of the liability shown on the
balance sheet of such Person in respect of a Capital Lease determined in accordance with GAAP.



     “Cash Equivalents” shall mean, as to any Person: (a) investments in direct obligations of the
United States of America or of any agency or instrumentality thereof whose obligations constitute
full faith and credit obligations of the United States of America and securities that are the
direct obligations of any member state of the European Union or any other sovereign nation, which
at the time of acquisition thereof, was not targeted for sanctions by the Office of Foreign Assets
Control of the United States Department of the Treasury so long as the full faith of and credit of
such nation is pledged in support thereof, provided that in each case any such obligations shall
mature within one year of the date of issuance thereof; (b) investments in commercial paper rated
at least P-1 by Moody’s or at least A-1 by S&P or the highest rating available by any other credit
agency of national standing or an equivalent rating from a comparable foreign rating agency, in
each case maturing within one year of the date of issuance thereof; (c) investments in certificates
of deposit or banker’s acceptances issued by any Lender or by any commercial bank having capital
and surplus of not less than $100,000,000 which have a maturity of one year or less;



5









 




(d) investments in repurchase obligations with a term of not more than 7 days for underlying securities
of the types described in clause (a) above entered into with any bank meeting the qualifications
specified in clause (c) above, provided all such agreements require physical delivery of the
securities securing such repurchase agreement, except those delivered through the Federal Reserve
Book Entry System; (e) investments in auction reset securities, which are variable rate securities
with interest rates that reset no less frequently than quarterly in each case rated “AA” or better
by S&P, “Aa2” or better by Moody’s or an equivalent rating by any other credit rating agency of
recognized national standing; (f) investments in variable rate demand notes and bonds that are
credit enhanced by any commercial bank having capital and surplus of not less than $100,000,000;
and (g) investments in money market funds that invest solely, and which are restricted by their
respective charters to invest solely, in investments of the type described in the immediately
preceding subsections (a), (b), (c), (d), (e) and (f) above.




     “CERCLA” means the Comprehensive Environmental Response, Compensation and Liability Act of
1980, as amended by the Superfund Amendments and Reauthorization Act of 1986, 42 U.S.C. §§9601 et
seq., and any future amendments.



     “Change of Control” shall mean and include any Person or related Persons constituting a
“group” for the purposes of Section 13(d) of the Securities Exchange Act of 1934, as amended,
becoming the beneficial owner or owners, directly or indirectly, of a majority of the Voting Stock
(determined by number of votes) of the Borrower (the “Beneficial Owners”). As used herein, the
term “Voting Stock” shall mean Securities of any class or classes, the holders of which are
ordinarily, in the absence of contingencies, entitled to elect a majority of the corporate
directors (or Persons performing similar functions).



     “Change in Law” means the occurrence, after the date of this Agreement, of any of the
following: (a) the adoption or taking effect of any law, rule, regulation or treaty or (b) any
change in any law, rule, regulation or treaty or in the administration, interpretation or
application thereof by any Governmental Authority; provided, however, that notwithstanding anything
herein to the contrary, the Dodd-Frank Wall Street Reform and Consumer Protection Act and all
requests, rules, guidelines or directives thereunder or issued in connection therewith shall be
deemed to be a “Change in Law”, regardless of the date enacted, adopted or issued.



     “Citi” means Citigroup Global Markets Inc., Citibank, N.A., Citicorp USA, Inc., Citicorp North
America, Inc. or any of their respective affiliates.



     “Cliffs Erie” Cliffs Erie L.L.C., a Delaware corporation.



6









 





     “Cliffs Sonoma Entities” means, collectively, Cliffs Australia Washplant Operations Pty Ltd
ACN 123 748 032 and Cliffs Australia Coal Pty Ltd ACN 123 583 326.



     “Closing Date” means the date on which each condition described in Section 3.02 has been
satisfied or waived pursuant to Section 10.11.



     “Code” means the Internal Revenue Code of 1986, as amended, and any successor statute thereto.



     “Commitment” means, (i) on or prior to the Closing Date, as to any Lender, the obligation of
such Lender to make a Loan to the Borrower hereunder on the Closing Date in a principal amount not
to exceed the amount set forth opposite such Lender’s name on Schedule 1 under the caption
“Commitment” attached hereto and made a part hereof and (ii) subsequent to the Closing Date, any
obligation of a Lender to make an Incremental Loan.



     “Commitment Termination Date” means the earliest of (i) the Closing Date, (ii) April 29, 2011
(or such later date as the “Outside Date” (as defined in the Arrangement Agreement) may be extended
pursuant to the definition thereof, but in any event no later than July 29, 2011) and (iii) the
date of any termination of the Total Commitment pursuant to Section 2.06.



     “Contingent Obligation” shall mean as to any Person, any obligation of such Person
guaranteeing or intended to guarantee any Indebtedness (“primary obligations”) of any other Person
(the “primary obligor”) in any manner, whether directly or indirectly, including, without
limitation, any obligation of such Person, whether or not contingent, (i) to purchase any such
primary obligation or any Property constituting direct or indirect security therefor, (ii) to
advance or supply funds (x) for the purchase or payment of any such primary obligation or (y) to
maintain working capital or equity capital of the primary obligor or otherwise to maintain the net
worth or solvency of the primary obligor, (iii) to purchase property, securities or services
primarily for the purpose of assuring the owner of any such primary obligation of the ability of
the primary obligor to make payment of such primary obligation or (iv) otherwise to assure or hold
harmless the holder of such primary obligation against loss in respect thereof; provided, however,
that the term Contingent Obligation shall not include endorsements of instruments for deposit or
collection in the ordinary course of business. The amount of any Contingent Obligation shall be
deemed to be an amount equal to the stated or determinable principal amount of the primary
obligation in respect of which such Contingent Obligation is made or, if not stated or
determinable, the maximum reasonably anticipated liability in respect thereof (assuming such Person
is required to perform thereunder) as determined by such Person in good faith.



     “Controlled Group” means all members of a controlled group of corporations and all trades or
businesses (whether or not incorporated) under



7









 




common control which, together with the Borrower, are treated as a single employer under Section
414 of the Code.




     “Damages” means all damages including, without limitation, punitive damages, liabilities,
costs, expenses, losses, judgments, fines, penalties, demands, claims, cost recovery actions,
lawsuits, administrative proceedings, orders, corrective or response actions, abatement, removal
and remedial costs, compliance costs, reasonable investigation expenses, reasonable consultant
fees, reasonable attorneys’ and paralegals’ fees and reasonable litigation expenses.



     “Debtor Relief Laws” means the Bankruptcy Code of the United States, and all other
liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium,
rearrangement, receivership, insolvency, reorganization, or similar debtor relief Laws of the
United States or other applicable jurisdictions from time to time in effect.



     “Default” means any event or condition the occurrence of which would, with the passage of time
or the giving of notice, or both, constitute an Event of Default.



     “Defaulting Lender” means any Lender that, as reasonably determined by the Administrative
Agent, (a) has failed to perform its obligation to fund any portion of its Loan hereunder within
one Business Day of the Closing Date, unless such obligation is the subject of a good faith
dispute, (b) has notified the Borrower, the Administrative Agent or any Lender in writing that it
does not intend to comply with any of its funding obligations under this Agreement or has made a
public statement that it does not intend to comply with its funding obligations under this
Agreement or generally under other agreements in which it commits to extend credit, (c) otherwise
has failed to pay over to the Administrative Agent or any other Lender any other amount required to
be paid by it hereunder within one Business Day of the date when due, unless the subject of a good
faith dispute, or (d) has, or has a direct or indirect parent company that has, (i) become the
subject of a proceeding under any bankruptcy or insolvency proceeding, (ii) had a receiver,
conservator, trustee, administrator, assignee for the benefit of creditors or similar Person
charged with reorganization or liquidation of its business or a custodian appointed for it, or
(iii) taken any action in furtherance of, or indicating its consent to, approval of or acquiescence
in any such proceeding or appointment; provided that a Lender shall not be a Defaulting Lender
solely by virtue of the ownership or acquisition of any equity interest in such Lender or direct or
indirect parent company thereof by a Governmental Authority.



     “Depositary” is defined in the Arrangement Agreement.



     “Director” is defined in the Arrangement Agreement.



8









 





     “Domestic Subsidiary” means each Subsidiary that is not a Foreign Subsidiary.



     “EBITDA” means, with reference to any period, Net Income for such period plus, without
duplication, (a) all amounts deducted in arriving at such Net Income amount in respect of (i)
Interest Expense for such period, (ii) federal, state and local income taxes as accrued for such
period, (iii) depreciation of fixed assets and amortization of intangible assets for such period,
(iv) non-cash items decreasing Net Income for such period, and (v) cash charges and other expenses
associated with or relating to the Transactions in an aggregate amount not to exceed the lesser of
(x) $149,300,000 and (y) the amount of such cash charges and other expenses associated with or
relating to the Transactions permitted to be included in the determination of EBITDA pursuant to
the Revolver, minus, without duplication, (b) the sum of (i) cash payments made during such period
in respect of items added to the calculation of Net Income pursuant to clause (a)(iv) above during
such period or any previous period, and (ii) non-cash items increasing Net Income for such period;
provided, however, that, solely for the purposes of calculating compliance with Section 6.18(a),
EBITDA for any period shall (x) include the EBITDA for any Person or business unit that has been
acquired by the Borrower or any of its Restricted Subsidiaries for any portion of such period prior
to the date of acquisition, and (y) exclude the EBITDA for any Person or business unit that has
been disposed of by the Borrower or any of its Restricted Subsidiaries for the portion of such
period after the date of disposition. Notwithstanding the foregoing, for purposes of determining
the EBITDA of the Target for the fiscal quarters ending March 31, 2011, June 30, 2011 and September
30, 2011, such amount shall be calculated for the period from January 1, 2011 through the end of
the relevant fiscal quarter then ending, as applicable, and multiplied by 4, 2 and 4/3,
respectively.



     “Effective Date” means the date on which each condition described in Section 3.01 has been
satisfied or waived pursuant to Section 10.11 and this Agreement becomes effective in accordance
with Section 10.25.



     “Eligible Assignee” means (a) a Lender, (b) an Affiliate of a Lender, (c) an Approved Fund and
(d) any other Person (other than a natural person) approved by (i) the Administrative Agent and
(ii) unless an Event of Default has occurred and is continuing, the Borrower (each such approval
not to be unreasonably withheld or delayed); provided that notwithstanding the foregoing, “Eligible
Assignee” shall not include the Borrower or any of the Borrower’s Affiliates or Subsidiaries.



     “Environmental Claim” means any investigation, notice, violation, demand, allegation, action,
suit, injunction, judgment, order, consent decree, penalty, fine, lien, proceeding or claim
(whether administrative, judicial or private in nature) arising (a) pursuant to, or in connection
with an actual or alleged violation of, or liability under, any Environmental Law, (b) in
connection with any Hazardous Material, (c) from any abatement, removal, remedial, corrective or



9









 




response action in connection with a Hazardous Material, Environmental Law or order of a
Governmental Authority or (d) from any actual or alleged damage, injury, threat or harm to health,
safety, natural resources or the environment.




     “Environmental Law” means any current or future Law pertaining to (a) the protection of the
indoor or outdoor environment, (b) the conservation, management or use of natural resources and
wildlife, (c) the protection or use of surface water or groundwater, (d) the management,
manufacture, possession, presence, use, generation, transportation, treatment, storage, disposal,
Release, threatened Release, abatement, removal, remediation or handling of, or exposure to, any
Hazardous Material or (e) pollution (including any Release to air, land, surface water or
groundwater), and any amendment, rule, regulation, order or directive issued thereunder.



     “ERISA” means the Employee Retirement Income Security Act of 1974, as amended, or any
successor statute thereto.



     “Escrow Arrangement” means an arrangement whereby the proceeds of the Loans are funded and/or
transferred to one or more bank accounts of the Borrower or one or more wholly-owned Subsidiaries
of the Borrower pursuant to irrevocable instructions given to the depositary bank in each instance
that (i) the Borrower or such Subsidiary shall only be permitted to disburse such funds (x) in
connection with foreign exchange transactions in connection with the Transactions; provided that
the proceeds of any such foreign exchange transactions are deposited in bank accounts pursuant to
the irrevocable instructions to the applicable depositary bank described in this definition and (y)
to the Depositary and other payees pursuant to Section 6.03(3) of the Arrangement Agreement and
(ii) require it to return such funds to the Administrative Agent on the third Business Day
following the funding of the Loans unless such funds shall have been disbursed as permitted by
clause (i)(y) of this definition on or prior to such date; provided that (A) amounts so returned to
the Administrative Agent shall be in United States dollars (converted if necessary by the
depositary bank from the currency in which they are then held) and (B) any currency exchange gains
or losses shall be for the sole account of the Borrower and shall not affect its obligations to
repay the Loans in accordance with Section 2.05. The Escrow Arrangement shall be documented in a
manner reasonably satisfactory to the Administrative Agent.



     “Eurodollar Loan” means a Loan bearing interest at the rate specified in Section 2.02(b)
hereof.



     “Event of Default” means any event or condition identified as such in Section 7.01 hereof.



     “Excess Interest” is defined in Section 10.19 hereof.



10









 





     “Excluded Taxes” means, with respect to the Administrative Agent, any Lender or any other
recipient of any payment to be made by or on account of any obligation of the Borrower hereunder,
(a) taxes imposed on or measured by its overall net income (however denominated), and franchise
taxes imposed on it (in lieu of net income taxes), by the jurisdiction (or any political
subdivision thereof) under the laws of which such recipient is organized or in which its principal
office is located or, in the case of any Lender, in which its applicable Lending Office is located,
(b) any branch profits taxes imposed by the United States or any similar tax imposed by any other
jurisdiction in which the Borrower is located, and (c) except as otherwise provided in this clause
(c), in the case of a Foreign Lender (other than an assignee pursuant to a request by the Borrower
under Section 8.05), any withholding tax that is imposed pursuant to FATCA and any other
withholding tax imposed on amounts payable to such Foreign Lender at the time such Foreign Lender
becomes a party hereto (or designates a new Lending Office) or is attributable to such Foreign
Lender’s failure or inability to comply with Section 10.01(f) and (g)(iii), except to the extent
that such Foreign Lender (or its assignor, if any) was entitled, at the time of designation of a
new Lending Office (or assignment), to receive additional amounts from the Borrower with respect to
such withholding tax pursuant to Section 10.01(a).



     “FATCA” means Sections 1471 through 1474 of the Code, as of the date of hereof and any
regulations or official interpretations thereof.



     “Fee Letters” means, (i) the Arranger Fee Letter dated February 2, 2011 among the Borrower,
the Lead Arrangers, JPMCB and Bank of America, N.A. and (ii) the Agency Fee Letter dated February
2, 2011 among the Borrower, JPMCB and J.P. Morgan Securities LLC.



     “Federal Funds Rate” means, for any day, the rate per annum equal to the weighted average of
the rates on overnight Federal funds transactions with members of the Federal Reserve System
arranged by Federal funds brokers on such day, as published by the Federal Reserve Bank of New York
on the Business Day next succeeding such day; provided that (a) if such day is not a Business Day,
the Federal Funds Rate for such day shall be such rate on such transactions on the next preceding
Business Day as so published on the next succeeding Business Day, and (b) if no such rate is so
published on such next succeeding Business Day, the Federal Funds Rate for such day shall be the
average rate (rounded upward, if necessary, to a whole multiple of 1/100 of 1%) charged to JPMCB on
such day on such transactions as determined by the Administrative Agent.



     “Foreign Lender” means, with respect to the Borrower, any Lender that is organized under the
laws of a jurisdiction other than that in which such Borrower is resident for tax purposes. For
purposes of this definition, the United States, each State thereof and the District of Columbia
shall be deemed to constitute a single jurisdiction.



11









 





     “Foreign Subsidiary” means each Subsidiary which is organized under the Laws of a jurisdiction
other than the United States of America or any state thereof or the District of Columbia.



     “Fund” means any Person (other than a natural person) that is (or will be) engaged in making,
purchasing, holding or otherwise investing in commercial loans and similar extensions of credit in
the ordinary course of its business.



     “GAAP” means generally accepted accounting principles as in effect in the United States as set
forth from time to time in the opinions and pronouncements of the Accounting Principles Board and
the American Institute of Certified Public Accountants and statements and pronouncements of the
Financial Accounting Standards Board (or agencies with similar functions of comparable stature and
authority within the U.S. accounting profession), which are applicable to the circumstances as of
the date of determination.



     “Governmental Authority” means the government of the United States or any other nation, or of
any political subdivision thereof, whether state or local, and any agency, authority,
instrumentality, regulatory body, court, central bank or other entity exercising executive,
legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to
government (including any supra-national bodies such as the European Union or the European Central
Bank).



     “Guarantor” means each Material Subsidiary (other than Cleveland Cliffs International Holding
Company and Cliffs Subscription LLC) from time to time party to a Guaranty in accordance with the
provisions of Article 4 hereof. As of the Effective Date, the Guarantors are The Cleveland-Cliffs
Iron Company, Cliffs Mining Company, Cliffs Sales Company, Northshore Mining Company, Cliffs
Minnesota Mining Company, Cliffs North American Coal LLC, CLF PinnOak LLC, Silver Bay Power
Company, Cliffs Empire, Inc., Cliffs TIOP, Inc., Cliffs Logan County Coal, LLC and Cliffs West
Virginia Coal Inc.



     “Guaranty” and “Guaranties” each is defined in Section 4.01 hereof.



     “Hazardous Material” means (a) any “hazardous substance” as defined in CERCLA and (b) any
material classified or regulated as “hazardous” or “toxic” or words of like import pursuant to an
Environmental Law.



     “Hedge Agreement” means any interest rate, currency or commodity swap agreements, cap
agreements, collar agreements, floor agreements, exchange agreements, forward contracts, option
contracts or similar interest rate or currency or commodity hedging arrangements.



     “Hedging Liability” means the liability of the Borrower or any Restricted Subsidiary under any
Hedge Agreement.



     “Incremental Amendment” shall have the meaning assigned to such term in Section 2.09.



12









 





     “Incremental Loan” shall have the meaning assigned to such term in Section 2.09.



     “Indebtedness” means for any Person (without duplication) (a) all indebtedness of such Person
for borrowed money, whether current or funded, or secured or unsecured, (b) all indebtedness for
the deferred purchase price of Property or services, (c) all indebtedness created or arising under
any conditional sale or other title retention agreement with respect to Property acquired by such
Person (even though the rights and remedies of the seller or lender under such agreement in the
event of a default are limited to repossession or sale of such Property), (d) all indebtedness
secured by a purchase money mortgage or other Lien to secure all or part of the purchase price of
Property subject to such mortgage or Lien, (e) all obligations under leases which shall have been
or must be, in accordance with GAAP, recorded as Capital Leases in respect of which such Person is
liable as lessee, (f) any reimbursement liability in respect of banker’s acceptances or letters of
credit, (g) any indebtedness, whether or not assumed, secured by Liens on Property acquired by such
Person at the time of acquisition thereof, (h) all obligations under any so-called “synthetic
lease” transaction entered into by such Person, (i) all obligations under any so-called “asset
securitization” transaction entered into by such Person, and (j) all Contingent Obligations;
provided, however that the term “Indebtedness” shall not include (i) trade payables arising in the
ordinary course of business, (ii) any letter of credit secured by cash or Cash Equivalents, and
(iii) up to $500,000 in obligations under the Agreement for Loan of Minnesota Investment Fund dated
August 24, 2004 between United Taconite LLC and the Township of McDavitt.



     “Indemnitee” is defined in Section 10.13(b) hereof.



     “Indemnified Taxes” means Taxes other than Excluded Taxes.



     “Initial Lender” means each of JPMorgan Chase Bank, N.A., Bank of America, N.A. and Citi.



     “Initial Loan” is defined in Section 2.01 hereof.



     “Initial Maturity Date” means the fifth anniversary of the Closing Date.



     “Interest Coverage Ratio” means, at any time the same is to be determined, the ratio of (a)
EBITDA of the Borrower and its Restricted Subsidiaries for the four fiscal quarters of the Borrower
most recently ended to (b) Interest Expense of the Borrower and its Restricted Subsidiaries for the
same four fiscal quarters most recently ended.



     “Interest Expense” means, with reference to any period, the sum of all interest charges
(including imputed interest charges with respect to Capitalized Lease Obligations and all
amortization of debt discount and expense) of the Borrower and its Restricted Subsidiaries for such
period determined on a consolidated basis in accordance with GAAP.



13









 





     “Interest Period” means, as to each Eurodollar Loan, the period commencing on the date such
Eurodollar Loan is disbursed or converted to or continued as a Eurodollar Loan and ending on the
date seven or fourteen days or one, two, three or six months thereafter, as selected by the
Borrower in its Notice of Borrowing; provided that:



     (a) any Interest Period that would otherwise end on a day that is not a Business Day shall be
extended to the next succeeding Business Day unless such Business Day falls in another calendar
month, in which case such Interest Period shall end on the next preceding Business Day;



     (b) any Interest Period that begins on the last Business Day of a calendar month (or on a day
for which there is no numerically corresponding day in the calendar month at the end of such
Interest Period) shall end on the last Business Day of the calendar month at the end of such
Interest Period; and



     (c) no Interest Period shall extend beyond the Maturity Date.



     “Investment” means any investment, made in cash or by delivery of property, by the Borrower or
any of its Restricted Subsidiaries (i) in any Person, whether by acquisition of stock, Indebtedness
or other obligation or Security, or by loan, guaranty, advance, capital contribution or otherwise,
or (ii) in Property.



     “Joint Venture” means any corporation, partnership, limited liability company or other entity
or organization that has Voting Stock directly or indirectly owned by the Borrower; provided,
however, that, notwithstanding this definition, none of the following shall be a Joint Venture
hereunder: (i) any Wholly-Owned Subsidiary, (ii) any trade creditor or customer in which the
Borrower or any of its Subsidiaries has made an Investment pursuant to clause (i) of the definition
of Restricted Investments, (iii) any entity or organization set forth on Schedule 6.15(A), (iv)
Amapa, and (v) any entity or organization in which the Borrower or any of its Subsidiaries has made
an Investment (other than any Investment in an entity or organization that was a Joint Venture
immediately prior to such Investment) pursuant to clause (o) of the definition of Restricted
Investments.



     “JPMCB” is defined in the introductory paragraph of this Agreement.



     “Laws” means, collectively, all international, foreign, Federal, state, provincial,
territorial and local statutes, treaties, rules, guidelines, regulations, ordinances, codes and
administrative or judicial precedents or authorities, including the interpretation or
administration thereof by any Governmental Authority charged with the enforcement, interpretation
or administration thereof, and all applicable administrative orders, directed duties, requests,
licenses, authorizations and permits of, and binding and enforceable agreements with, any
Governmental Authority, in each case whether or not having the force of law.



14









 





     “Lead Arranger” means each of J.P. Morgan Securities LLC, Merrill Lynch, Pierce, Fenner &
Smith Incorporated and Citigroup Global Markets Inc., in its capacity as a joint lead arranger and
joint bookrunner.



     “Lenders” means and includes JPMCB and the other financial institutions from time to time
party to this Agreement, including each Additional Lender and each assignee Lender pursuant to
Section 10.10 hereof.



     “Lending Office” means, as to any Lender, the office or offices of such Lender described as
such in such Lender’s Administrative Questionnaire, or such other office or offices as a Lender may
from time to time notify in writing to the Borrower and the Administrative Agent. To the extent
reasonably possible, a Lender shall designate an alternative branch or funding office with respect
to its Eurodollar Loans to reduce any liability of the Borrower to such Lender under Section 8.04
hereof or to avoid the unavailability of Eurodollar Loans under Section 8.03 hereof, so long as
such designation is not disadvantageous to the Lender.



     “Leverage Ratio” shall mean, on any date, the ratio of Total Funded Debt on such date to
EBITDA for the period of four consecutive fiscal quarters most recently ended on or prior to such
date.



     “LIBOR” means, for any Interest Period with respect to a Eurodollar Loan, the rate per annum
equal to the British Bankers Association LIBOR Rate (“BBA LIBOR”), as published by Reuters (or
other commercially available source providing quotations of BBA LIBOR as designated by the
Administrative Agent from time to time) at approximately 11:00 a.m., London time, two Business Days
prior to the commencement of such Interest Period, for deposits in U.S. Dollars (for delivery on
the first day of such Interest Period) with a term equivalent to such Interest Period. If such
rate is not available at such time for any reason, then the “Eurodollar Rate” for such Interest
Period shall be the rate per annum determined by JPMCB to be the rate at which deposits in U.S.
Dollars for delivery on the first day of such Interest Period in immediately available funds in the
approximate amount of the Eurodollar Loan being made, continued or converted by JPMCB and with a
term equivalent to such Interest Period would be offered by JPMCB’s London Branch to major banks in
the London interbank market at their request at approximately 11:00 a.m. (London time) two Business
Days prior to the commencement of such Interest Period.



     “Lien” means any mortgage, lien, security interest, pledge, charge or encumbrance of any kind
in respect of any Property, including the interests of a vendor or lessor under any conditional
sale, Capital Lease or other title retention arrangement.



     “Loan” means an Initial Loan or an Incremental Loan.



15









 





     “Loan Documents” means this Agreement, the Notes, the Guaranties, the Fee Letters and each
other instrument or document to be executed or delivered by the Borrower or any Restricted
Subsidiary hereunder or thereunder or otherwise in connection therewith.



     “Material Adverse Effect” means (a) a material adverse change in, or material adverse effect
upon, the operations, business, Property or condition (financial or otherwise) of the Borrower and
its Subsidiaries taken as a whole; (b) a material impairment of the rights and remedies of the
Administrative Agent or any Lender under any Loan Document, or of the ability of the Borrower or
any Restricted Subsidiary to perform its material obligations under any Loan Document to which it
is a party; or (c) a material adverse effect upon the legality, validity, binding effect or
enforceability against the Borrower or any Restricted Subsidiary of any Loan Document to which it
is a party.



     “Material Subsidiary” shall mean and include (i) each Wholly-Owned Subsidiary that is a
Domestic Subsidiary, except any Wholly-Owned Subsidiary that is a Domestic Subsidiary and does not
have (together with its Subsidiaries) (a) at the time of determination thereof, consolidated total
assets that constitute more than 10% of the consolidated total assets of the Borrower and its
Subsidiaries at such time and (b) consolidated gross revenues for any fiscal year of the Borrower
ending on or after December 31, 2010, that constitute more than 10% of the consolidated gross
revenues of the Borrower and its Subsidiaries during such fiscal year and (ii) each Domestic
Subsidiary that the Borrower has designated to the Administrative Agent in writing as a Material
Subsidiary. As of the Effective Date, the Material Subsidiaries are The Cleveland-Cliffs Iron
Company, Cliffs Mining Company, Cliffs Sales Company, Northshore Mining Company, Cliffs Minnesota
Mining Company, Cliffs North American Coal LLC, CLF PinnOak LLC, Silver Bay Power Company, Cliffs
Empire, Inc., Cliffs TIOP, Inc., Cleveland-Cliffs International Holding Company, Cliffs Logan
County Coal, LLC and Cliffs West Virginia Coal Inc.



     “Maturity Date” means (i) with respect to the Initial Loans, the Initial Maturity Date and
(ii) with respect to any Tranche of Incremental Loans, the Maturity Date therefor specified in the
applicable Incremental Amendment.



     “Maximum Rate” is defined in Section 10.19 hereof.



     “Moody’s” means Moody’s Investors Service, Inc. and any successor thereto.



     “Net Income” means, with reference to any period, the net income (or net loss) of the Borrower
and its Restricted Subsidiaries for such period computed on a consolidated basis in accordance with
GAAP; provided that (a) there shall be excluded from Net Income (i) the net income (or net loss) of
any Person accrued prior to the date it becomes a Restricted Subsidiary of, or has merged into or
consolidated with, the Borrower or another Restricted Subsidiary and (ii) the net



16









 




income (or net loss) of any Person (other than a Restricted Subsidiary) in which the Borrower or
any of its Restricted Subsidiaries has an equity interest in, except to the extent of the amount of
dividends or other distributions actually paid to the Borrower or any of its Restricted
Subsidiaries during such period, and (b) solely for the purposes of calculating compliance with
Section 6.18(a), Net Income for any period shall (i) include the net income (or net loss) for any
Person or business unit that has been acquired by the Borrower or any of its Restricted
Subsidiaries for any portion of such period prior to the date of acquisition, and (ii) exclude the
net income (or net loss) for any Person or business unit that has been disposed of by the Borrower
or any of its Restricted Subsidiaries for the portion of such period after the date of disposition.




     “Net Worth” means, at any time the same is to be determined, total shareholder’s equity
(including capital stock, additional paid-in capital, and retained earnings after deducting
treasury stock) which would appear on the balance sheet of the Borrower and its Restricted
Subsidiaries determined on a consolidated basis in accordance with GAAP.



     “Note” means a promissory note made by the Borrower in favor of a Lender evidencing Loans made
by such Lender, substantially in the form of Exhibit C.



     “Non-Guarantor Subsidiaries” means each Restricted Subsidiary that is not a Guarantor.



     “Obligations” means all advances to, and debts, liabilities, obligations, covenants and duties
of, the Borrower and the Guarantors arising under any Loan Document or otherwise with respect to
any Loan, whether direct or indirect (including those acquired by assumption), absolute or
contingent, due or to become due, now existing or hereafter arising and including interest and fees
that accrue after the commencement by or against the Borrower or any Guarantor thereof of any
proceeding under any Debtor Relief Laws naming such Person as the debtor in such proceeding,
regardless of whether such interest and fees are allowed claims in such proceeding.



     “Other Taxes” means all present or future stamp or documentary taxes or any other excise or
property taxes, charges or similar levies arising from any payment made hereunder or under any
other Loan Document or from the execution, delivery or enforcement of, or otherwise with respect
to, this Agreement or any other Loan Document.



     “Overnight Rate” means, for any day, the greater of (i) the Federal Funds Rate and (ii) an
overnight rate determined by the Administrative Agent in accordance with banking industry rules on
interbank compensation.



     “Participant” is defined in Section 10.10(d) hereof.



     “Participant Register” is defined in Section 10.10(d) hereof.



17









 





     “Patriot Act” is defined in Section 5.23(b) hereof.



     “PBGC” means the Pension Benefit Guaranty Corporation or any Person succeeding to any or all
of its functions under ERISA.



     “Percentage” means, with respect to any Lender at any time, the percentage (carried out to the
ninth decimal place) of the Total Commitment represented by such Lender’s Commitment at such time.
The initial Percentage of each Lender is set forth opposite the name of such Lender on Schedule 1
or in the Assignment and Assumption pursuant to which such Lender becomes a party hereto, as
applicable.



     “Permitted Acquisition” means any Acquisition with respect to which the following condition is
satisfied: after giving effect to the Acquisition, no Default or Event of Default shall exist,
including with respect to the covenant contained in Section 6.18(a) hereof on a pro forma basis.



     “Permitted Investment Amount” means an amount equal to (a) $150,000,000 plus (b) 20% of
positive consolidated Net Income for each fiscal year of the Borrower commencing with the
Borrower’s fiscal year ending December 31, 2006.



     “Permitted Lien” is defined in Section 6.13 hereof.



     “Person” means any natural person, partnership, corporation, limited liability company,
association, trust, unincorporated organization, Governmental Authority or any other entity or
organization.



     “Portman Limited Facility” means any credit agreement, multi-option facility, facility
agreement, loan agreement or other agreements or instruments entered into from time to time under
which the applicable lenders or holders of such instruments have agreed to make loans or otherwise
extend credit to Cliffs Natural Resources Holdings Pty Ltd or any Restricted Subsidiary thereof.



     “Plan” means any employee pension benefit plan covered by Title IV of ERISA or subject to the
minimum funding standards under Section 412 of the Code that either (a) is maintained by a member
of the Controlled Group for employees of a member of the Controlled Group or (b) is maintained
pursuant to a collective bargaining agreement or any other arrangement under which more than one
employer makes contributions and to which a member of the Controlled Group is then making or
accruing an obligation to make contributions or has within the preceding five plan years made
contributions.



     “Platform” is defined in Section 6.01 hereof.



     “Property” means, as to any Person, all types of real, personal, tangible, intangible or mixed
property owned by such Person whether or not included in the
most recent balance sheet of such Person and its Restricted Subsidiaries under GAAP.



18









 





     “Project Indebtedness” is defined in Section 6.12(c) hereof.



     “Public Lender” is defined in Section 6.01 hereof.



     “RCRA” means the Solid Waste Disposal Act, as amended by the Resource Conservation and
Recovery Act of 1976 and Hazardous and Solid Waste Amendments of 1984, 42 U.S.C. §§6901 et seq.,
and any future amendments.



     “Register” is defined in Section 10.10(c) hereof.



     “Related Parties” means, with respect to any Person, such Person’s Affiliates and the
partners, directors, officers, employees, agents and advisors of such Person and of such Person’s
Affiliates.



     “Release” shall mean any spilling, leaking, pumping, pouring, emitting, emptying, discharging,
injecting, escaping, leaching, dumping, disposing or migration into the environment.



     “Required Lenders” means at any time (i) on or prior to the Closing Date, Lenders whose
aggregate Commitments constitute more than 50% of the Total Commitment and (ii) after the Closing
Date, Lenders whose outstanding Loans constitute more than 50% of the sum of the total outstanding
Loans; provided, that the Commitment of, and the portion of the outstanding Loans held or deemed
held by, any Defaulting Lender shall, so long as such Lender is a Defaulting Lender, be excluded
for purposes of making a determination of Required Lenders.



     “Responsible Officer” shall mean any of the President, Chairman, Chief Executive Officer,
Chief Operating Officer, Vice Chairman, any Executive Vice President, Chief Financial Officer,
Treasurer, Chief Legal Officer or a General Counsel, of the Borrower.



     “Restricted Investments” means all Investments except the following:



     (a) property, plant and equipment to be used in the ordinary course of business of the
Borrower and its Restricted Subsidiaries;



     (b) current assets arising from the sale of goods and services in the ordinary course of
business of the Borrower and its Restricted Subsidiaries;



     (c) existing Investments in Restricted Subsidiaries disclosed on Schedule 5.10(a) hereof;



19









 





     (d) Permitted Acquisitions; provided that in the case of any Permitted Acquisition with
consideration in excess of $100,000,000, the Borrower shall deliver to the Administrative Agent at
least 5 Business Days (or such shorter period as may be agreed to by the Administrative Agent)
prior to any such Acquisition a certificate confirming pro forma compliance with Section 6.18
hereof;



     (e) Investments disclosed on Schedule 6.15, including without limitation, Schedule 6.15(A),
hereof;



     (f) Investments in cash and Cash Equivalents;



     (g) Hedging Liability to any other Person, in all cases incurred in the ordinary course of
business and not for speculative purposes;



     (h) Contingent Obligations permitted by Section 6.12 hereof;



     (i) mergers and consolidations permitted by Section 6.14 hereof;



     (j) loans and advances to directors, employees and officers of the Borrower and its Restricted
Subsidiaries for bona fide business purposes in the ordinary course of business;



     (k) Investments by the Borrower or any Wholly-Owned Subsidiary that is a Restricted Subsidiary
in or to any other Wholly-Owned Subsidiary that is a Restricted Subsidiary and Investments by any
Restricted Subsidiary in the Borrower or any Wholly-Owned Subsidiary that is a Restricted
Subsidiary;



     (l) Investments in securities of trade creditors or customers in the ordinary course of
business that are received (i) in settlement of bona fide disputes or pursuant to any plan of
reorganization or liquidation or similar arrangement upon the bankruptcy or insolvency of such
trade creditors or customers or (ii) in the settlement of debts created in the ordinary course of
business;



     (m) Investments in Joint Ventures for the purpose of financing such entities’ (x) operating
expenses incurred in the ordinary course of business, (y) reasonable Capital Expenditures and (z)
other reasonable obligations that are accounted for by the Borrower and its Restricted Subsidiaries
as increases in equity in such Joint Ventures;



     (n) the Amapa Investment;



     (o) Investments of the Borrower and its Restricted Subsidiaries to make acquisitions of
additional mining interests or for other strategic or commercial purposes; provided that, (i) in no
event shall the amount of such Investments exceed the Permitted Investment Amount and (ii) after
giving effect to any such Investment, no Default or Event of Default shall exist, including with



20









 




respect to the covenants contained in Section 6.18 hereof on a pro forma basis; provided further
that, in the case of any such Investment in which the aggregate amount to be invested is greater
than $100,000,000, the Borrower shall deliver to the Administrative Agent at least 5 Business Days
(or such shorter period of time as is agreed to by the Administrative Agent) prior to such
Investment a certificate confirming such pro forma compliance;




     (p) the Sonoma Investment; and



     (q) Investments, not otherwise permitted under clauses (a)-(p), of the Borrower and its
Restricted Subsidiaries; provided that the Borrower shall be in pro forma compliance with Section
6.18 hereof and, in the case of any Investment in excess of $100,000,000, shall deliver to the
Administrative Agent at least 5 Business Days (or such shorter period as shall be agreed to by the
Administrative Agent) prior to any such Investment a certificate confirming such pro forma
compliance.



     “Restricted Subsidiary” means each Subsidiary of the Borrower that is not an Unrestricted
Subsidiary.



     “Revolver” means the Multicurrency Credit Agreement dated as of August 17, 2007 among the
Borrower and the lenders, agents and arrangers party thereto, as amended and in effect from time to
time, and any replacement credit facility therefor.



     “SEC” is defined in Section 6.01(e) hereof.



     “Security” shall have the same meaning as in Section 2(1) of the Securities Act of 1933, as
amended.



     “Sonoma” means the unincorporated joint venture formed by QCoal Sonoma Pty Ltd, Watami (Qld)
Pty Ltd, CSC Sonoma Pty Ltd, JS Sonoma Pty Ltd and Cliffs Australia Coal Pty Ltd, a Wholly-Owned
Subsidiary of the Borrower, for the purpose of mining and developing a coal mine in Queensland,
Australia, including the construction of a washplant by Cliffs Australia Washplant Operations Pty
Ltd, an indirectly held Wholly-Owned Subsidiary of the Borrower.



     “Sonoma Investment” means, collectively, all Investments by the Borrower and its Restricted
Subsidiaries in Sonoma.



     “Specified Representations” means the representations and warranties of the Borrower contained
in Section 5.01, 5.02, 5.13, 5.22 and 5.23(b).



     “Spot Rate” means, for a currency, the rate determined by the Administrative Agent to be the
rate quoted by the Person acting in such capacity as the spot rate for the purchase by such Person
of such currency with another currency through its principal foreign exchange trading office at
approximately 11:00 a.m. on the date two Business Days prior to the date as of which the foreign



21









 




exchange computation is made; provided that the Administrative Agent may obtain such spot rate from
another financial institution designated by the Administrative Agent if the Person acting in such
capacity does not have as of the date of determination a spot buying rate for any such currency.




     “Standard Permitted Liens” means, with respect to any Person, any of the following:



     (a) inchoate Liens for the payment of taxes which are not yet due and payable or, in the case
of the Borrower or any of its Restricted Subsidiaries, the payment of which is not required by
Section 6.07;



     (b) Liens arising by statute in connection with worker’s compensation, unemployment insurance,
old age benefits, social security obligations, taxes, assessments, statutory obligations or other
similar charges (other than Liens arising under ERISA);



     (c) mechanics’, workmen’s, materialmen’s, landlords’, carriers’ or other similar Liens arising
in the ordinary course of business with respect to obligations which are not due or which are being
contested in good faith by appropriate proceedings which prevent enforcement of the matter under
contest;



     (d) Liens created by or pursuant to this Agreement;



     (e) any interest or title of a lessor under any operating lease;



     (f) easements, rights-of-way, restrictions, and other similar encumbrances against real
property incurred in the ordinary course of business which, in the aggregate, are not substantial
in amount and which do not materially detract from the value of the Property subject thereto or
materially interfere with the ordinary conduct of the business of such Person;



     (g) Liens of or resulting from any judgment or award, the time for the appeal or petition for
rehearing of which shall not have expired, or in respect of which such Person shall at any time in
good faith be prosecuting an appeal or proceeding for a review and in respect of which a stay of
execution pending such appeal or proceeding for review shall have been secured, provided that, the
aggregate amount of such judgments or awards secured by Liens permitted under this subsection,
including interest and penalties thereon, if any, shall not be in excess of the lesser of (i)
$50,000,000 and (ii) the aggregate amount of such judgments or awards secured by Liens permitted
under the Revolver (except to the extent fully (excluding any deductibles or self-insured
retention) covered by insurance pursuant to which the insurer has accepted liability therefor in
writing) at any one time outstanding;



     (h) Liens in the nature of royalties, dedications of reserves or similar rights or interests
granted, taken subject to or otherwise imposed on properties consistent with normal practices in
the iron ore mining industry;




22












 





     (i) Liens incurred in the ordinary course of business to secure the performance of
tenders, statutory obligations (other than excise taxes), surety, stay, customs and appeal bonds,
statutory bonds, bids, leases, government contracts, trade contracts, performance and return of
money bonds and other similar obligations (exclusive of obligations for Indebtedness) or arising by
virtue of deposits made in the ordinary course of business to security liability for premiums to
insurance carriers and/or benefit obligations to claimants;



     (j) leases or subleases of properties, in each case entered into in the ordinary course of
business so long as such leases or subleases do not, individually or in the aggregate, (i)
interfere in any material respect with the ordinary conduct of the business of the Borrower and its
Restricted Subsidiaries or (ii) materially impair the use (for its intended purposes) or the value
of the Property subject thereto;



     (k) Liens arising out of conditional sale, title retention, consignment or similar
arrangements for the sale of goods entered into in the ordinary course of business in accordance
with the past business practices of such Person, and any products or proceeds thereof to the extent
covered by such Liens;



     (l) bankers’ Liens, rights of setoff and other similar Liens existing solely with respect to
cash and Cash Equivalents on deposit in one or more accounts, in each case granted in the ordinary
course of business in favor of the bank or banks with which such accounts are maintained, securing
amounts owing to such bank with respect to cash management and operating account arrangements,
including those involving pooled accounts and netting arrangements; provided that, unless such
Liens are non-consensual and arise by operation of Law, in no case shall any such Liens secure
(either directly or indirectly) the repayment of any Indebtedness;



     (m) the filing of UCC financing statements in connection with operating leases, consignment of
goods or bailment agreements; and



     (n) Liens securing reimbursement obligations with respect to trade or commercial letters of
credit that encumber only the documents underlying such letters of credit and any products or
proceeds thereof to the extent covered by such Liens.



     “S&P” means Standard & Poor’s Ratings Services Group, a division of The McGraw-Hill Companies,
Inc. and any successor thereto.



     “Subsidiary” means, as to any particular parent corporation or organization, any other
corporation or organization more than 50% of the outstanding Voting Stock of which is at the time
directly or indirectly owned by such parent corporation or organization or by any one or more other
entities which are themselves subsidiaries of such parent corporation or organization.



23









 





     “Target” means Consolidated Thompson Iron Mines Limited, a corporation existing under the laws
of Canada.



     “Target Material Adverse Effect” means any fact, change, development, event, occurrence,
action, omission or effect that, individually or in the aggregate (a) results in or is reasonably
likely to result in a material adverse effect on the business, assets, properties, liabilities,
obligations, financial condition or results of operations of the Target and its Subsidiaries, taken
as a whole, other than any fact, change, development, event, occurrence, action, omission or effect
relating to or arising in connection with (i) changes, developments, or events affecting the iron
ore mining industry, to the extent that they do not materially disproportionately affect the Target
and its Subsidiaries, taken as a whole, in relation to other companies in the iron ore mining
industry, (ii) the economy in general, or financial or capital markets in general, in the United
States of America or Canada or elsewhere in the world, to the extent that they do not materially
disproportionately affect the Target and its Subsidiaries, taken as a whole, in relation to other
companies in the iron ore mining industry, (iii) relating to the rate at which Canadian dollars can
be exchanged for United States dollars or vice versa; (iv) changes (after the date of the
Arrangement Agreement) in Law or in generally accepted accounting principles or in accounting
standards affecting the iron ore mining industry, (v) the announcement or pendency of the
Arrangement Agreement or the anticipated consummation of the Arrangement, or the completion of the
transactions contemplated by the Arrangement Agreement, (vi) acts of war, sabotage or terrorism, or
any escalation or worsening of any such acts of war, sabotage or terrorism threatened or underway
as of the date of the Arrangement Agreement to the extent that they do not materially
disproportionately affect the Target and its Subsidiaries, taken as a whole, in relation to other
companies in the iron ore mining industry, (vii) earthquakes, hurricanes, tornados or other natural
disasters to the extent that they do not materially disproportionately affect the Target and its
Subsidiaries, taken as a whole, in relation to other companies in the iron ore mining industry,
(viii) operations restrictions due to port activity interruptions and rail suspensions (A)
resulting from force majeure events pursuant to the Contracts set forth in Schedule 1.01 of the
Disclosure Letter (as in effect on the January 11, 2011) and (B) to the extent such restrictions do
not materially disproportionately affect the Target and its Subsidiaries, taken as a whole, in
relation to other persons subject to such restrictions, or (ix) any decline in the market price, or
change in trading volume, of the common shares in the capital of the Target or any failure to meet
publicly announced revenue or earnings projections or internal projections (it being understood
that, without limiting the applicability of the provisions contained in clauses (i) through (ix)
above, the cause or causes of any such decline, change or failure may be deemed to constitute, in
and of itself and themselves, a Target Material Adverse Effect and may be taken into consideration
when determining whether a Target Material Adverse Effect has occurred) or (b) would prevent or
materially impede or delay the completion of the Arrangement. The capitalized terms used in this
definition and not otherwise defined herein



24









 




shall have the meanings set forth in the Arrangement Agreement as in effect on January 11,
2011.




     “Taxes” means all present or future taxes, levies, imposts, duties, deductions, withholdings,
assessments, fees or other charges imposed by any Governmental Authority, including any interest,
additions to tax or penalties applicable thereto.



     “Thompson Bond Reorganization” is defined in the Arrangement Agreement.



     “Thompson Bond Defeasance” is defined in the Arrangement Agreement.



     “Total Commitment” means, at any time on or prior to the Closing Date, the aggregate amount of
Commitments. At the Effective Date, the Total Commitment is $1,250,000,000.



     “Total Consideration” means, with respect to an Acquisition, the sum (but without duplication)
of (a) cash paid in connection with any Acquisition, (b) indebtedness payable to the seller in
connection with such Acquisition, (c) the fair market value of any equity securities, including any
warrants or options therefor, delivered in connection with any Acquisition, (d) the present value
of covenants not to compete entered into in connection with such Acquisition or other future
payments which are required to be made over a period of time and are not contingent upon the
Borrower or its Restricted Subsidiary meeting financial performance objectives (exclusive of
salaries paid in the ordinary course of business) (discounted at the Base Rate), but only to the
extent not included in clause (a), (b) or (c) above, and (e) the amount of Indebtedness assumed in
connection with such Acquisition.



     “Total Funded Debt” means, at any time the same is to be determined, the aggregate of all
Indebtedness of the Borrower and its Restricted Subsidiaries at such time.



     “Trade Date” is defined in Section 10.10(b)(i)(B) hereof.



     “Tranche” means each tranche of Loans hereunder consisting of (i) the Initial Loans or (ii)
Incremental Loans having identical terms borrowed on the same date pursuant to Section 2.09.



     “Transactions” means (i) the plan of arrangement pursuant to the Arrangement Agreement,
including the payment of the cash consideration payable pursuant to the Arrangement Agreement, (ii)
the execution, delivery and performance of this Agreement, including the funding of the Loans
hereunder and the application of the proceeds thereof, (iii) the repayment or defeasance of certain
Indebtedness of the Target and its Subsidiaries and (iv) the payment of the



25









 




fees and expenses incurred in connection with the Arrangement Agreement, this Agreement and
related transactions.




     “Unfunded Vested Liabilities” means, for any Plan at any time, the amount (if any) by which
the present value of all vested nonforfeitable accrued benefits under such Plan exceeds the fair
market value of all Plan assets allocable to such benefits, all determined as of the then most
recent valuation date for such Plan, but only to the extent that such excess represents a potential
liability of a member of the Controlled Group to the PBGC or the Plan under Title IV of ERISA.



     “Unrestricted Subsidiary” means any Subsidiary of the Borrower designated, from time to time,
by the Borrower in writing to the Administrative Agent as an Unrestricted Subsidiary; provided,
however, that at the time of such designation (a) no Default or Event of Default shall have
occurred and be continuing or would result therefrom, (b) such Subsidiary, together with all other
Subsidiaries then designated as Unrestricted Subsidiaries shall not account for more than 15% of
consolidated revenues or consolidated EBITDA of the Borrower, as measured as of the end of the most
recently completed fiscal quarter of the Borrower for the period of four consecutive fiscal
quarters of the Borrower then-ended, (c) after giving effect to such designation, the Borrower
shall be in pro forma compliance with each of the financial covenants set forth in Section 6.18,
and (d) the Borrower shall have delivered to the Administrative Agent a certificate, in form and
substance reasonably satisfactory to the Administrative Agent, signed by a Responsible Officer of
the Borrower certifying that the conditions set forth in clauses (a) through (c) above are
satisfied (which certificate shall attach supporting information and calculations with respect to
the requirements set forth in clauses (b) and (c) above).



     “U.S. Dollar Equivalent” means, at any time, with respect to any amount denominated in any
currency other than U.S. Dollars, the equivalent amount thereof in U.S. Dollars as determined by
the Administrative Agent at such time on the basis of the Spot Rate for the purchase of U.S.
Dollars with such currency.



     “U.S. Dollars” and “$” each means the lawful currency of the United States of America.



     “Voting Stock” of any Person means capital stock or other equity interests of any class or
classes (however designated) having ordinary power for the election of directors or other similar
governing body of such Person (including, without limitation, general partners of a partnership),
other than stock or other equity interests having such power only by reason of the happening of a
contingency.



     “Welfare Plan” means a “welfare plan” as defined in Section 3(1) of ERISA.



26









 





     “Withholding Agent” is defined in Section 10.01(a) hereof.



     “Wholly-Owned Subsidiary” means, at any time, any Subsidiary all of the Voting Stock (except
directors’ qualifying shares) of which are owned by any one or more of the Borrower and the
Borrower’s other Wholly-Owned Subsidiaries at such time.



     Section 1.02. Interpretation. The foregoing definitions are equally applicable to both the
singular and plural forms of the terms defined. The words “hereof”, “herein”, and “hereunder” and
words of like import when used in this Agreement shall refer to this Agreement as a whole and not
to any particular provision of this Agreement. All references to time of day herein are references
to New York, New York time unless otherwise specifically provided. Where the character or amount
of any asset or liability or item of income or expense is required to be determined or any
consolidation or other accounting computation is required to be made for the purposes of this
Agreement, it shall be done in accordance with GAAP except where such principles are inconsistent
with the specific provisions of this Agreement.



     Section 1.03. Change in Accounting Principles. If, after the date of this Agreement, there
shall occur any change in GAAP from those used in the preparation of the financial statements
referred to in Section 5.03 hereof and such change shall result in a change in the method of
calculation of any financial covenant, standard or term found in this Agreement, either the
Borrower or the Required Lenders may by notice to the Lenders and the Borrower, respectively,
require that the Lenders and the Borrower negotiate in good faith to amend such covenants,
standards, and term so as equitably to reflect such change in accounting principles, with the
desired result being that the criteria for evaluating the financial condition of the Borrower and
its Restricted Subsidiaries shall be the same as if such change had not been made. No delay by the
Borrower or the Required Lenders in requiring such negotiation shall limit their right to so
require such a negotiation at any time after such a change in accounting principles. Until any
such covenant, standard, or term is amended in accordance with this Section 1.03, financial
covenants shall be computed and determined in accordance with GAAP in effect prior to such change
in accounting principles. Without limiting the generality of the foregoing, the Borrower shall
neither be deemed to be in compliance with any financial covenant hereunder nor out of compliance
with any financial covenant hereunder if such state of compliance or noncompliance, as the case may
be, would not exist but for the occurrence of a change in accounting principles after the date
hereof.



     Section 1.04. Rounding. Any financial ratios required to be maintained by the Borrower
pursuant to this Agreement shall be calculated by dividing the appropriate component by the other
component, carrying the result to one place more than the number of places by which such ratio is
expressed herein and rounding the result up or down to the nearest number (with a rounding-up if
there is no nearest number).



27









 





ARTICLE 2

The Credit Facilities




     Section 2.01. Commitments. Each Lender severally and not jointly agrees, subject to the
terms and conditions hereof, to make a loan (each individually an “Initial Loan” and, collectively,
the “Initial Loans”) in U.S. Dollars to the Borrower on the Closing Date in an amount not to exceed
such Lender’s Commitment. The Commitments shall terminate on the Commitment Termination Date
(after the making of any Loans to be made hereunder on such date in accordance with the terms and
conditions hereof). Amounts borrowed under this Section 2.01 and repaid or prepaid may not be
reborrowed. Loans may be Base Rate Loans or Eurodollar Loans, as further provided herein.



     Section 2.02. Applicable Interest Rates. (a) Base Rate Loans. Subject to the provisions of
clause (c) below, each Base Rate Loan made or maintained by a Lender shall bear interest (computed
on the basis of a year of 365 or 366 days, as applicable, and the actual days elapsed) on the
unpaid principal amount of such Loan from the date such Loan is advanced or created by conversion
from a Eurodollar Loan until the Maturity Date (whether by acceleration or otherwise) at a rate per
annum equal to the sum of the Applicable Margin plus the Base Rate from time to time in effect,
payable in arrears on the last Business Day of each month and on the Maturity Date (whether by
acceleration or otherwise).



     (b) Eurodollar Loans. Subject to the provisions of clause (c) below, each Eurodollar Loan
made or maintained by a Lender shall bear interest during each Interest Period it is outstanding
(computed on the basis of a year of 360 days and actual days elapsed) on the unpaid principal
amount thereof from the date such Loan is advanced, continued or created by conversion from a Base
Rate Loan until the Maturity Date (whether by acceleration or otherwise) at a rate per annum equal
to the sum of the Applicable Margin plus LIBOR applicable for such Interest Period, payable in
arrears on the last Business Day of each Interest Period applicable to such Loan and the Maturity
Date and, if any applicable Interest Period is longer than three months, on each day occurring
every three months after the commencement of such Interest Period.



     (c) Default Rate. While any Event of Default exists or after acceleration, the Borrower shall
pay interest (after as well as before entry of judgment thereon to the extent permitted by Law and
before and after the commencement of any proceeding under any Debtor Relief Law) on the principal
amount of all Loans owing by it at a rate per annum equal to:



          (i) for any Base Rate Loan, the sum of 2.0% per annum plus the Applicable Margin plus
the Base Rate from time to time in effect; and




          (ii) for any Eurodollar Loan, the sum of 2.0% plus the rate of interest in effect
thereon at the time of such Event of Default until the end of the Interest Period
applicable thereto and, thereafter, at a rate per annum




28









 








equal to the sum of 2.0% plus the Applicable Margin for Base Rate Loans plus the Base
Rate from time to time in effect;



While any Event of Default exists or after acceleration, interest shall be paid on demand of the
Administrative Agent, acting at the request or with the consent of the Required Lenders.




     (d) Rate Determinations. The Administrative Agent shall determine each interest rate
applicable to the Loans hereunder, and its determination thereof shall be conclusive and binding
except in the case of manifest error.



     Section 2.03. Manner of Borrowing Loans and Applicable Interest Rates. (a) Notice to the
Administrative Agent. The Borrowing on the Closing Date, each conversion of Loans from Base Rate
Loans to Eurodollar Loans and Eurodollar Loans to Base Rate Loans, and each continuation of
Eurodollar Loans shall be made upon the Borrower’s irrevocable notice to the Administrative Agent,
which may be given by telephone and promptly confirmed in writing, substantially in the form
attached hereto as Exhibit A (Notice of Borrowing) or Exhibit B (Notice of Continuation/
Conversion), as applicable, or in such other form acceptable to the Administrative Agent. Each
such notice must be received by the Administrative Agent by no later than 11:00 a.m.: (i) at least
three (3) Business Days before the date on which the Borrower requests the Lenders to advance a
Borrowing of, conversion to or continuation of Eurodollar Loans and (ii) at least one Business Day
before the date on which the Borrower requests the Lenders to advance a Borrowing of or conversion
to Base Rate Loans. The Loans included in each Borrowing shall bear interest initially at the type
of rate specified in such notice. All notices concerning the advance, continuation or conversion
of a Borrowing shall specify the date of the requested advance, continuation or conversion of a
Borrowing (which shall be a Business Day), the amount of the requested Borrowing to be advanced,
which existing Borrowings are to be continued or converted, the type of Loans to comprise such new,
continued or converted Borrowing and, if such Borrowing is to be comprised of Eurodollar Loans, the
Interest Period applicable thereto. The Borrower agrees that the Administrative Agent may rely on
any such telephonic or telecopy notice given by any person the Administrative Agent in good faith
believes is an Authorized Representative without the necessity of independent investigation (the
Borrower hereby indemnifying the Administrative Agent from any liability or loss ensuing from such
reliance) and, in the event any such notice by telephone conflicts with any written confirmation,
such telephonic notice shall govern if the Administrative Agent has acted in reliance thereon.



     (b) Notice to the Lenders. The Administrative Agent shall give prompt telephonic or telecopy
notice to each Lender of any notice from the Borrower received pursuant to Section 2.03(a) above
and, if such notice requests such Lenders to make Eurodollar Loans, the Administrative Agent shall
give notice to the Borrower and each such Lender of the interest rate applicable thereto promptly
after the Administrative Agent has made such determination.



29









 





     (c) Borrower’s Failure to Notify; Automatic Continuations and Conversions; Defaults.



     (i) Except as otherwise provided herein, a Eurodollar Loan may be continued or
converted only on the last day of an Interest Period for such Eurodollar Loan. If the
Borrower fails to give proper notice of the continuation or conversion of any outstanding
Borrowing of Eurodollar Loans before the last day of its then current Interest Period
within the period required by Section 2.03(a) and such Borrowing is not prepaid in
accordance with Section 2.06, such Borrowing shall automatically be converted into a
Borrowing of Eurodollar Loans with an Interest Period of one month.




     (ii) During the existence of an Event of Default, no Loans may be requested as,
converted to or continued as Eurodollar Loans without the consent of the Required Lenders.




     (d) Disbursement of Loans. Not later than 12:00 noon on the Closing Date, subject to Article
3 hereof, each Lender shall make available its Initial Loan comprising part of such Borrowing in
funds immediately available at the Administrative Agent’s Office. The Administrative Agent shall
make such proceeds available to the Borrower at such account with such financial institution as the
Administrative Agent has previously agreed to with the Borrower.



     (e) Funding by Lenders; Presumption by Administrative Agent. Unless the Administrative Agent
shall have received notice from a Lender prior to the proposed date of any Borrowing of Eurodollar
Loans (or in the case of any Borrowing of Base Rate Loans, prior to 12:00 noon on the date of such
Borrowing) that such Lender will not make available to the Administrative Agent such Lender’s share
of such Borrowing, the Administrative Agent may assume that such Lender has made such share
available on such date in accordance with this Section 2.03 (or, in the case of a Borrowing of Base
Rate Loans, that such Lender has made such share available in accordance with and at the time
required by this Section 2.03) and may, in reliance upon such assumption, make available to the
Borrower a corresponding amount. In such event, if a Lender has not in fact made its share of the
applicable Borrowing available to the Administrative Agent, then the applicable Lender and the
Borrower severally agree to pay to the Administrative Agent forthwith on demand such corresponding
amount in immediately available funds with interest thereon, for each day from and including the
date such amount is made available to the Borrower to but excluding the date of payment to the
Administrative Agent, at (i) in the case of a payment to be made by such Lender, the Overnight
Rate, plus any administrative, processing or similar fees customarily charged by the Administrative
Agent in connection with the foregoing, and (ii) in the case of a payment to be made by the
Borrower, the interest rate applicable to Base Rate Loans. If the Borrower and such Lender shall
pay such interest to the Administrative Agent for the same or an overlapping period, the
Administrative Agent shall promptly remit to the



30









 




Borrower the amount of such interest paid by the Borrower for such period. If such Lender
pays its share of the applicable Borrowing to the Administrative Agent, then the amount so paid
shall constitute such Lender’s Loan included in such Borrowing. Any payment by the Borrower shall
be without prejudice to any claim the Borrower may have against a Lender that shall have failed to
make such payment to the Administrative Agent. A notice of the Administrative Agent to any Lender
with respect to any amount owing under this subsection (e) shall be conclusive, absent manifest
error.




     (f) Obligations of Lenders Several. The obligations of the Lenders hereunder to make Loans
and to make payments pursuant to Section 10.13(c) are several and not joint. The failure of any
Lender to make any Loan, to make any payment under Section 10.13(c) on any date required hereunder
shall not relieve any other Lender of its corresponding obligation to do so on such date, and no
Lender shall be responsible for the failure of any other Lender to so make its Loan, to purchase
its participation or to make its payment under Section 10.13(c).



     Section 2.04. Minimum Borrowing Amounts; Maximum Eurodollar Loans. Each Borrowing of Loans
shall be in an amount not less than $5,000,000 or a whole multiple of $1,000,000 in excess thereof.
Without the Administrative Agent’s consent, there shall not be more than eight (8) Borrowings of
Eurodollar Loans outstanding hereunder at any one time.



     Section 2.05. Repayment of Loans.



     (a) The Borrower shall repay to the Lenders on the Maturity Date the aggregate principal
amount of Loans, together with interest thereon, outstanding on such date.



     (b) The Initial Loans shall mature in quarterly installments, and the Borrower shall repay on
each three-month anniversary of the Closing Date a principal amount of the Initial Loans equal to
(i) the initial aggregate principal amount of the Initial Loans multiplied by (ii) the applicable
percentage specified in the table below:



	 	 	 	 
	Installment	 	Aggregate Percentage	 
	1-4
	 	1.25	%
	5-12
	 	2.50	%
	13-16
	 	3.75	%
	17-20
	 	15.0	%






     Each such payment shall be accompanied by accrued interest on the principal amount repaid.



31









 





     (c) Prepayments of the Loans of any Tranche pursuant to Section 2.06 below shall be applied
ratably by amount to subsequent scheduled installments of principal of the Loans of such Tranche.



     Section 2.06. Prepayments and Commitment Reductions.



     (a) Voluntary. The Borrower may, upon notice to the Administrative Agent, (i) at any time on
or prior to the Closing Date, terminate or permanently and ratably reduce the Total Commitment or
(ii) at any time after the Closing Date, voluntarily prepay the Loans of any Tranche in whole or in
part without premium or penalty (except as set forth in Section 8.01 below); provided, in each case
that (x) such notice must be received by the Administrative Agent no later than 11:00 a.m. (A) at
least three (3) Business Days before the date of any reduction or termination of the Total
Commitment or any prepayment of Eurodollar Loans or (B) at least one Business Day before the date
of prepayment of Base Rate Loans (or, in each case, such shorter period of time then agreed to by
the Administrative Agent) and (y) any reduction in the Total Commitment or prepayment of Loans
(other than a prepayment in full) shall be in a principal amount of $5,000,000 or a whole multiple
of $1,000,000 in excess thereof. Each such notice shall specify the date and amount of such
reduction or prepayment and, in the case of prepayments, the type(s) of Loans to be prepaid and, if
Eurodollar Loans are to be prepaid, the Interest Period(s) of such Loans. Any prepayment of the
Loans shall be accompanied by all accrued interest on the amount prepaid, together, in the case of
Eurodollar Loans, with any additional amounts required pursuant to Section 8.01. For the avoidance
of doubt, any such notice may be conditioned upon the effectiveness and/or funding of other credit
facilities.



     (b) Mandatory. If the Articles of Arrangement have not been filed with the Director on or
prior to the third Business Day (as defined in the Arrangement Agreement) following the Closing
Date, the Borrower shall, on the fourth Business Day (as defined in the Arrangement Agreement)
following the Closing Date, repay to the Lenders the aggregate principal amount of Loans, together
with interest thereon, outstanding on such date.



     Section 2.07. Payments. (a) Place of Payments. All payments to be made by the Borrower
shall be made without condition or deduction for any counterclaim, defense, recoupment or setoff.
Except as otherwise expressly provided herein, all payments by the Borrower hereunder and the other
Loan Documents, shall be made by the Borrower to the Administrative Agent by no later than 12:00
noon on the due date thereof at the Administrative Agent’s Office (or such other location as the
Administrative Agent may designate to the Borrower). Any payments received after such time shall
be deemed to have been received by the Administrative Agent on the next Business Day. All such
payments shall be made in U.S. Dollars, in immediately available funds at the place of payment.
The Administrative Agent will promptly thereafter cause to be distributed like funds relating to
the payment of principal or interest on Loans of



32









 




any Tranche ratably to the applicable Lenders and like funds relating to the payment of any
other amount payable to any Lender to such Lender, in each case to be applied in accordance with
the terms of this Agreement.




     (b) Funding By Borrower. Unless the Administrative Agent shall have received notice from the
Borrower prior to the date on which any payment is due to the Administrative Agent for the account
of the Lenders hereunder that the Borrower will not make such payment, the Administrative Agent may
assume that the Borrower has made such payment on such date in accordance herewith and may, in
reliance upon such assumption, distribute to the Lenders the amount due. In such event, if the
Borrower has not in fact made such payment, then each of the Lenders severally agrees to repay to
the Administrative Agent forthwith on demand the amount so distributed to such Lender, in
immediately available funds with interest thereon, for each day from and including the date such
amount is distributed to it to but excluding the date of payment to the Administrative Agent, at
the Overnight Rate. A notice of the Administrative Agent to the Borrower with respect to any
amount owing under this Section 2.07 shall be conclusive, absent manifest error.



     (c) Application of Payments. Anything contained herein to the contrary notwithstanding, (x)
pursuant to the exercise of remedies under Sections 7.02 and 7.03 hereof or (y) after written
instruction by the Required Lenders after the occurrence and during the continuation of an Event of
Default, all payments and collections received in respect of the Obligations by the Administrative
Agent or any of the Lenders shall be remitted to the Administrative Agent and distributed as
follows:



     First, to payment of that portion of the Obligations constituting fees, indemnities, expenses
and other amounts (including fees, charges and disbursements of counsel to the Administrative
Agent) due and payable to the Administrative Agent in its capacity as such;



     Second, to payment of that portion of the Obligations constituting fees, indemnities and other
amounts (other than principal and interest) due and payable to the Lenders (including fees, charges
and disbursements of counsel to the respective Lenders (including fees and time charges for
attorneys who may be employees of any Lender)) and amounts payable under Section 8.04, ratably
among them in proportion to the respective amounts described in this clause Second payable to them;



     Third, to payment of that portion of the Obligations constituting accrued and unpaid interest
on the Loans and other Obligations, ratably among the Lenders in proportion to the respective
amounts described in this clause Third payable to them;



     Fourth, to payment of that portion of the Obligations constituting unpaid principal of the
Loans ratably among the Lenders and their Affiliates in



33









 




proportion to the respective amounts described in this clause Fourth held by them (provided
that such payment pursuant to this clause Fourth shall be applied first to Base Rate Loans and
second to Eurodollar Loans in order of maturity); and




     Last, the balance, if any, after all of the Obligations have been indefeasibly paid in full,
to the Borrower or as otherwise required by Law.



     Section 2.08. Evidence of Indebtedness. The Loans made by each Lender shall be evidenced by
one or more accounts or records maintained by such Lender and by the Administrative Agent in the
ordinary course of business. The accounts or records maintained by the Administrative Agent and
each Lender shall be conclusive absent manifest error of the amount of the Loans made by the
Lenders to the Borrower and the interest and payments thereon. Any failure to so record or any
error in doing so shall not, however, limit or otherwise affect the obligation of the Borrower
hereunder to pay any amount owing with respect to the Obligations. In the event of any conflict
between the accounts and records maintained by any Lender and the accounts and records of the
Administrative Agent in respect of such matters, the accounts and records of the Administrative
Agent shall control in the absence of manifest error. Upon the request of any Lender made through
the Administrative Agent, the Borrower shall execute and deliver to such Lender (through the
Administrative Agent) a Note, which shall evidence such Lender’s Loans in addition to such accounts
or records. Each Lender may attach schedules to its Note and endorse thereon the date, type (if
applicable), amount and maturity of its Loans and payments with respect thereto.



     Section 2.09. Incremental Loans. (a) The Borrower may at any time or from time to time
after the Closing Date, by notice to the Administrative Agent (whereupon the Administrative Agent
shall promptly deliver a copy to each of the Lenders), request one or more additional Tranches of
term loans (the “Incremental Loans”), provided that (i) both at the time of any such request and
upon the effectiveness of any Incremental Amendment referred to below, no Default or Event of
Default shall exist and at the time that any such Incremental Loan is made (and after giving effect
thereto) no Default or Event of Default shall exist, (ii) on the date of incurrence of any such
Incremental Loans, the Borrower shall be in compliance with the covenants contained in Section 6.18
hereof on a pro forma basis (giving effect to such incurrence), (iii) the Borrower shall have
delivered a certificate certifying as to clauses (i) and (ii) to the Administrative Agent, together
with all calculations related thereto and (iv) the aggregate principal amount of the Incremental
Loans shall not exceed $250,000,000. Each tranche of Incremental Loans shall be in an aggregate
principal amount that is not less than $10,000,000 and be in an integral multiple of $5,000,000.
The Incremental Loans (a) shall rank pari passu in right of payment with the Initial Loans, (b)
shall not mature earlier than the Initial Maturity Date (but may, subject to clause (c) below, have
amortization prior to such date), (c) shall not have a weighted average life that is shorter than
the then-remaining weighted average life of the Initial Loans and (d) except as set forth above,
shall be treated substantially the same as (and in any event no more favorably than, taken as a
whole) the Initial



34









 




Loans, provided that (i) the terms and conditions applicable to Incremental Loans maturing
after the Initial Maturity Date may provide for material additional or different financial or other
covenants or prepayment requirements applicable only during periods after the Initial Maturity Date
and (ii) the Incremental Loans may be priced differently than the Initial Loans; provided further
that if the Applicable Margin (which, for such purposes only, shall be deemed to include all
upfront or similar fees or original issue discount payable to all Lenders providing such
Incremental Loans) relating to any Incremental Loans exceeds the Applicable Margin (which, for such
purposes only, shall be deemed to include all upfront or similar fees or original issue discount
payable to all Lenders providing the Initial Loans) relating to the Initial Loans immediately prior
to the effectiveness of the applicable Incremental Amendment by more than 0.50%, the Applicable
Margin relating to the Initial Loans shall be adjusted to be equal to the Applicable Margin
relating to such Incremental Term Loans minus 0.50%. Each notice from the Borrower pursuant to
this Section shall set forth the requested amount and proposed terms of the relevant Incremental
Loans. Incremental Loans may be made by any existing Lender or by any other bank or other
financial institution (any such other bank or other financial institution being called an
“Additional Lender”), provided that the Administrative Agent shall have consented (such consent not
to be unreasonably withheld) to such Lender’s or Additional Lender’s making such Incremental Loans
if such consent would be required under Section 10.10(b) for an assignment of Loans to such Lender
or Additional Lender. Commitments in respect of Incremental Loans shall become Commitments under
this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as
appropriate, the other Loan Documents, executed by the Borrower, each Lender agreeing to provide
such Commitment, if any, each Additional Lender, if any, and the Administrative Agent. The
Incremental Amendment may, without the consent of any other Lenders, effect such amendments to this
Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable
opinion of the Administrative Agent, to effect the provisions of this Section. No Lender shall be
obligated to provide any Incremental Loans unless it so agrees.




     Section 2.10. Undrawn Commitment Fees.



     The Borrower shall pay to the Administrative Agent for the account of each Lender in
accordance with its Percentage, an undrawn commitment fee which shall accrue at the rate of 0.25%
per annum on the daily amount of the undrawn Commitment of such Lender during the period from and
including the Effective Date to but excluding the Commitment Termination Date. Commencing on May
31, 2011, accrued fees shall be payable quarterly in arrears on the last day of each February, May,
August and November prior to the Commitment Termination Date and on the Commitment Termination
Date.



35









 





ARTICLE 3

Conditions Precedent




     Section 3.01. Conditions Precedent To Effective Date. This Agreement shall be effective
upon the receipt by the Administrative Agent, not later than March 4, 2011, of the following, each
of which shall be originals or telecopies (followed promptly by originals) unless otherwise
specified, each properly executed by a Responsible Officer of the Borrower or Guarantor, as the
case may be, each dated the Effective Date (or, in the case of certificates of governmental
officials, a recent date before the Effective Date):



     (a) executed counterparts of this Agreement, sufficient in number for distribution to the
Administrative Agent, each Lender and the Borrower;



     (b) a Note duly executed by the Borrower in favor of each Lender requesting a Note;



     (c) the Guaranty duly executed by each Guarantor;



     (d) copies of the Borrower’s and each Guarantor’s articles of incorporation and bylaws (or
comparable organizational documents) and any amendments thereto, certified in each instance by its
Secretary or Assistant Secretary;



     (e) copies of resolutions of the Borrower’s and each Guarantor’s Board of Directors (or
similar governing body) authorizing the execution, delivery and performance of this Agreement and
the other Loan Documents to which it is a party and the consummation of the transactions
contemplated hereby and thereby, together with incumbency certificates and specimen signatures of
the persons authorized to execute such documents on the Borrower’s and each Guarantor’s behalf, all
certified in each instance by its Secretary or Assistant Secretary;



     (f) copies of the certificates of good standing, or the nearest equivalent in the relevant
jurisdiction, for the Borrower and each Guarantor (dated no earlier than 45 days prior to the
Effective Date) from the office of the secretary of state or other appropriate governmental
department or agency of the state of its incorporation or organization and of each state in which
it is qualified to do business as a foreign corporation or organization;



     (g) a list of the Authorized Representatives; and



     (h) the favorable written opinion of counsel to the Borrower and each Guarantor, in form and
substance reasonably satisfactory to the Administrative Agent.



     Section 3.02. Conditions Precedent to Closing Date. The obligation of each Lender to make
an Initial Loan on the Closing Date shall be subject to the following conditions precedent:



36









 





     (a) The Administrative Agent shall have received (i) audited consolidated balance sheets and
related statements of income, stockholders’ equity and cash flows of each of the Borrower and the
Target for the three most recent fiscal years ended at least 90 days prior to the Closing Date (the
Administrative Agent hereby acknowledges receipt of the audited financial statements of the
Borrower for the 2008, 2009 and 2010 fiscal years and the Target for the 2007, 2008 and 2009 fiscal
years) and (ii) unaudited consolidated and (to the extent available) consolidating balance sheets
and related statements of income, stockholders’ equity and cash flows of each of the Borrower and
the Target for each subsequent fiscal quarter ended at least 60 days before the Closing Date (it
being agreed that with respect to the Target and its Subsidiaries, such financial statements shall
be in conformity with GAAP as in effect in Canada);



     (b) The Administrative Agent shall have received a pro forma consolidated balance sheet and
related pro forma consolidated statement of income of the Borrower as of and for the twelve-month
period ending on the last day of the most recently completed four-fiscal quarter period for which
financial statements have been delivered pursuant to clause (a) above, prepared after giving effect
to the Transactions as if the Transactions had occurred as of such date (in the case of such
balance sheet) or at the beginning of such period (in the case of the income statement);



     (c) The Administrative Agent shall have received the notice of borrowing required by Section
2.03 hereof;



     (d) Since September 30, 2010, there having been no Target Material Adverse Effect;



     (e) The Arrangement Agreement Representations shall be true and correct as of the Closing Date
without regard to any materiality or material adverse effect qualification contained in them,
except where the failure or failures of such Arrangement Agreement Representations to be so true
and correct in all respects would not have a Target Material Adverse Effect, and the
representations and warranties of the Target in Section 3.0(2)(c) of the Arrangement Agreement
regarding the capitalization of the Target shall be true and correct in all material respects;



     (f) The Specified Representations shall be true and correct as of the Closing Date;



     (g) No Default or Event of Default arising under Section 7.01(a), Section 7.01(j) or Section
7.01(k) shall have occurred and be continuing as of the Closing Date;



     (h) (i) All conditions set forth in Article 6 of the Arrangement Agreement shall have been
satisfied or waived in accordance with the Arrangement Agreement without any waiver, amendment,
supplement or other



37









 




modification to the Arrangement Agreement that is materially adverse to the Lenders without
the consent of the Administrative Agent and each Initial Lender, such consent not to be
unreasonably withheld or delayed, except for (A) the conditions set forth in Section 6.03(3) of the
Arrangement Agreement, (B) the delivery of items to be delivered on the Arrangement Effective Date
and (C) the satisfaction of those conditions that, by their terms, cannot be satisfied until
immediately prior to the Arrangement Effective Date, but subject to the satisfaction or, where
permitted, waiver of those conditions as of the Arrangement Effective Date; provided, that the
conditions set forth in Sections 6.01 and 6.02 of the Arrangement Agreement (other than with
respect to the delivery of certificates) would be satisfied on the Closing Date if each reference
to “Effective Time” or “Effective Date” therein were a reference to the Closing Date and (ii) the
Escrow Arrangement shall be in effect;




     (i) Each Lender shall have received, at least five Business Days prior to the Closing Date,
all documentation and other information required by regulatory authorities under applicable “know
your customer” and anti-money laundering rules and regulations, including, without limitation, the
Patriot Act; and



     (j) All fees required to be paid (including fees payable on or prior to the Closing Date
pursuant to the Fee Letters) by the Borrower, and all expenses required to be reimbursed by the
Borrower, to the Administrative Agent, the Lead Arrangers or any Lender (other than a Defaulting
Lender) prior to the Closing Date shall have been paid, to the extent that invoices relating
thereto have been presented to the Borrower prior to the Closing Date.



     Without limiting the generality of the provisions of the last paragraph of Section 9.03, for
purposes of determining compliance with the conditions specified in this Article 3, each Lender
that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be
satisfied with, each document or other matter required thereunder to be consented to or approved by
or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received
notice from such Lender prior to the proposed Closing Date specifying its objection thereto.



ARTICLE 4

The Guaranties




     Section 4.01. Guaranties. The payment and performance of the Obligations shall at all times
be guaranteed by each Material Subsidiary (other than Cleveland Cliffs International Holding
Company) pursuant to one or more guaranty agreements in form and substance reasonably acceptable to
the Administrative Agent (as the same may be amended, modified or supplemented from time to time,
individually a “Guaranty” and collectively the “Guaranties”); provided, however, notwithstanding
the foregoing, no such guaranty will be required by a Material Subsidiary if doing so could have a
material adverse effect on the Borrower’s or the Material Subsidiary’s income tax liability.



38









 





     Section 4.02. Further Assurances. In the event the Borrower or any Restricted Subsidiary
forms or acquires any other Restricted Subsidiary that is a Material Subsidiary after the date
hereof, the Borrower shall, in accordance with this Section 4.02, promptly upon such formation or
acquisition cause such newly formed or acquired Restricted Subsidiary to execute a Guaranty, as the
Administrative Agent may then require, and the Borrower shall also deliver to the Administrative
Agent, or cause such Restricted Subsidiary to deliver to the Administrative Agent, at the
Borrower’s cost and expense, such other instruments, documents, certificates, and opinions
reasonably required by the Administrative Agent in connection therewith; provided, however,
notwithstanding the foregoing, no such guaranty will be required by a Material Subsidiary if doing
so could have a material adverse effect on the Borrower’s or the Material Subsidiary’s income tax
liability.



ARTICLE 5

Representations and Warranties




     The Borrower represents and warrants as of each of the Effective Date and the Closing Date to
each Lender and the Administrative Agent, and agrees, that:



     Section 5.01. Organization and Qualification. The Borrower and each of its Restricted
Subsidiaries (a) is duly organized, validly existing and in good standing (or, in each case, the
foreign equivalent, if applicable) under the Laws of the jurisdiction of its organization, (b) has
the power and authority to own its property and to transact the business in which it is engaged and
proposes to engage and (c) is duly qualified and in good standing (or, in each case, the foreign
equivalent, if applicable) in each jurisdiction where the ownership, leasing or operation of
property or the conduct of its business requires such qualification, except where the failure to be
so qualified and in good standing could not reasonably be expected to have a Material Adverse
Effect.



     Section 5.02. Authority and Enforceability. The Borrower has full right and authority to
enter into this Agreement and the other Loan Documents executed by it, to make the borrowings
herein provided for and to perform all of its obligations hereunder and under the other Loan
Documents executed by it. Each Guarantor has full right and authority to enter into the Loan
Documents executed by it, to guarantee the Obligations to perform all of its obligations under the
Loan Documents executed by it. The Loan Documents delivered by the Borrower and by each Guarantor
have been duly authorized, executed, and delivered by such Person and constitute legal, valid and
binding obligations of such Person enforceable against it in accordance with their terms, except as
enforceability may be limited by bankruptcy, insolvency, fraudulent conveyance or similar Laws
affecting creditors’ rights generally and general principles of equity (regardless of whether the
application of such principles is considered in a proceeding in equity or at Law); and this
Agreement and the other Loan Documents do not, nor does the performance or observance by the
Borrower or any Restricted Subsidiary of any of the matters and things herein or therein



39









 




provided for, (a) contravene or constitute a default under any provision of Law or any
judgment, injunction, order or decree binding upon the Borrower or any Restricted Subsidiary or any
provision of the organizational documents (e.g., charter, articles of incorporation or by-laws,
articles of association or operating agreement, partnership agreement or other similar document) of
the Borrower or any Restricted Subsidiary, (b) contravene or constitute a default under any
covenant, indenture or agreement of or affecting the Borrower or any Restricted Subsidiary or any
of its Property, in each case where such contravention or default, individually or in the
aggregate, could reasonably be expected to have a Material Adverse Effect or (c) result in the
creation or imposition of any Lien on any Property of the Borrower or any Restricted Subsidiary.




     Section 5.03. Financial Reports. The audited consolidated financial statements of the
Borrower and its Restricted Subsidiaries as at December 31, 2010 fairly and adequately present, in
all material respects, the consolidated financial condition of the Borrower and its Restricted
Subsidiaries as at said date and the consolidated results of their operations and cash flows for
the period then ended in conformity with GAAP applied on a consistent basis. Except as set forth
on Schedule 5.3, neither the Borrower nor any Restricted Subsidiary has contingent liabilities or
judgments, orders or injunctions against it that are material to it other than as indicated on such
financial statements or, with respect to future periods, on the financial statements furnished
pursuant to Section 6.01 hereof.



     Section 5.04. No Material Adverse Change. Since December 31, 2010, there has been no change
in the condition (financial or otherwise) of the Borrower and its Restricted Subsidiaries except
those occurring in the ordinary course of business, none of which individually or in the aggregate
could reasonably be expected to have a Material Adverse Effect.



     Section 5.05. Litigation and Other Controversies. Except as set forth on Schedule 5.5,
there is no litigation, arbitration or governmental proceeding pending or, to the knowledge of the
Borrower and its Restricted Subsidiaries, threatened against the Borrower or any of its Restricted
Subsidiaries that could reasonably be expected to have a Material Adverse Effect.



     Section 5.06. True and Complete Disclosure. All information furnished by or on behalf of
the Borrower or any of its Restricted Subsidiaries in writing to the Administrative Agent or any
Lender for purposes of or in connection with this Agreement, or any transaction contemplated
herein, is true and accurate in all material respects and not incomplete by omitting to state any
material fact necessary to make such information (taken as a whole) not materially misleading in
light of the circumstances under which such information was provided; provided that to the extent
any such information was based upon or constitutes a forecast or projection, the Borrower
represents only that it acted in good faith and utilized assumptions reasonable at the time made
and due care in the preparation of such information, report, financial statement, exhibit or
schedule.



40









 





     Section 5.07. Use of Proceeds; Margin Stock. All proceeds of the Loans shall be used by the
Borrower solely to pay the cash consideration payable pursuant to the Arrangement Agreement, to
repay or defease certain Indebtedness of the Target and its Subsidiaries and to pay the fees and
expenses incurred in connection with the Arrangement Agreement, this Agreement and related
transactions. No part of the proceeds of the Loans will be used by the Borrower or any Restricted
Subsidiary thereof to purchase or carry any margin stock (within the meaning of Regulation U of the
Board of Governors of the Federal Reserve System) or to extend credit to others for the purpose of
purchasing or carrying any margin stock. Neither the making of the Loans nor the use of the
proceeds thereof will violate or be inconsistent with the provisions of Regulations T, U or X of
the Board of Governors of the Federal Reserve System and any successor to all or any portion of
such regulations. Margin Stock (as defined above) constitutes less than 25% of the value of those
assets of the Borrower and its Restricted Subsidiaries that are subject to any limitation on sale,
pledge or other restriction hereunder.



     Section 5.08. Taxes. All material tax returns required to be filed by the Borrower or any
Restricted Subsidiary in any jurisdiction have, in fact, been filed, and all material taxes,
assessments, fees, and other governmental charges upon the Borrower or any Restricted Subsidiary or
upon any of their Property, income or franchises, which are shown to be due and payable in such
returns, have been paid except to the extent that the Borrower or any Restricted Subsidiary is
contesting the same in good faith. The Borrower does not know of any proposed additional material
tax assessment against it or its Restricted Subsidiaries for which adequate provisions in
accordance with GAAP have not been made on their accounts. Adequate provisions in accordance with
GAAP for taxes on the books of the Borrower and its Restricted Subsidiaries have been made for all
open years, and for the current fiscal period.



     Section 5.09. ERISA. The Borrower and each other member of its Controlled Group has
fulfilled its obligations under the minimum funding standards of, and is in compliance in all
material respects with, ERISA and the Code to the extent applicable to it and, other than a
liability for premiums under Section 4007 of ERISA, does not owe any liability to the PBGC or a
Plan under Title IV of ERISA. Except with respect to the Welfare Plans identified on Schedule 5.9,
as of the date hereof, neither the Borrower nor any Restricted Subsidiary has any contingent
liabilities with respect to any post-retirement benefits under a Welfare Plan, other than liability
for continuation coverage described in article 6 of Title I of ERISA.



     Section 5.10. Subsidiaries. (a) Restricted Subsidiaries. Schedule 5.10(a) correctly sets
forth, as of the date hereof, each Restricted Subsidiary of the Borrower, its respective
jurisdiction of organization and the percentage ownership (direct and indirect) of the Borrower in
each class of capital stock or other equity interests of each of its Restricted Subsidiaries and
also identifies the direct owner thereof.



41









 





     (b) Unrestricted Subsidiaries. Schedule 5.10(b) correctly sets forth, as of the date hereof,
each Unrestricted Subsidiary of the Borrower, its respective jurisdiction of organization and the
percentage ownership (direct and indirect) of the Borrower in each class of capital stock or other
equity interests of each of its Unrestricted Subsidiaries and also identifies the direct owner
thereof.



     Section 5.11. Compliance with Laws. The Borrower and each of its Restricted Subsidiaries is
in compliance with all applicable statutes, regulations and orders of, and all applicable
restrictions imposed by, any Governmental Authority, or any subdivision thereof, in respect of the
conduct of their businesses and the ownership of their property, except such noncompliances as
could not reasonably be expected to have, either individually or in the aggregate, a Material
Adverse Effect.



     Section 5.12. Environmental Matters. The Borrower and each of its Subsidiaries is in
compliance with all applicable Environmental Laws and the requirements of any permits issued under
such Environmental Laws, except to the extent that the aggregate effect of all noncompliances could
not reasonably be expected to have a Material Adverse Effect. Except as disclosed in the
Borrower’s most recent Form 10-K or Form 10-Q filed with the SEC, there are no pending or, to the
best knowledge of the Borrower and its Subsidiaries after due inquiry, threatened Environmental
Claims, including any such claims (regardless of materiality) for liabilities under CERCLA relating
to the disposal of Hazardous Materials, against the Borrower or any of its Subsidiaries or any real
property, including leaseholds, owned or operated by the Borrower or any of its Subsidiaries.
There are no facts, circumstances, conditions or occurrences on any real property, including
leaseholds, owned or operated by the Borrower or any of its Subsidiaries that, to the best
knowledge of the Borrower and its Subsidiaries after due inquiry, could reasonably be expected (a)
to form the basis of an Environmental Claim against, or result in liability under any Environmental
Law to, the Borrower or any of its Subsidiaries or any such real property, or (b) to cause any such
real property to be subject to any restrictions on the ownership, occupancy, use or transferability
of such real property by the Borrower or any of its Subsidiaries under any applicable Environmental
Law. Hazardous Materials have not been Released on or from any real property, including
leaseholds, owned or operated by the Borrower or any of its Subsidiaries where the costs of
remediating such Release may reasonably be expected to have a Material Adverse Effect.



     Section 5.13. Investment Company. Neither the Borrower nor any Restricted Subsidiary is an
“investment company” or a company “controlled” by an “investment company” within the meaning of the
Investment Company Act of 1940, as amended.



     Section 5.14. Intellectual Property. The Borrower and each of its Restricted Subsidiaries
owns all the patents, trademarks, permits, service marks, trade names, copyrights, franchises and
formulas, or rights with respect to the



42









 




foregoing, or each has obtained licenses of all other rights of whatever nature necessary for
the present conduct of its businesses, in each case without any known conflict with the rights of
others which, or the failure to obtain which, as the case may be, could reasonably be expected to
result in a Material Adverse Effect.




     Section 5.15. Good Title. The Borrower and its Restricted Subsidiaries have good and
marketable title, or valid leasehold interests, to their assets as reflected on the Borrower’s most
recent consolidated balance sheet provided to the Administrative Agent, except for sales of assets
in the ordinary course of business, subject to no Liens, other than Permitted Liens.



     Section 5.16. Labor Relations. Neither the Borrower nor any of its Restricted Subsidiaries
is engaged in any unfair labor practice that could reasonably be expected to have a Material
Adverse Effect. There is no strike, labor dispute, slowdown or stoppage pending against the
Borrower or any of its Restricted Subsidiaries or, to the best knowledge of the Borrower and its
Restricted Subsidiaries, threatened against the Borrower or any of its Restricted Subsidiaries,
except such as could not reasonably be expected to have a Material Adverse Effect.



     Section 5.17. Capitalization. Except as disclosed on Schedule 5.17, as of the date hereof,
all outstanding equity interests of the Borrower and each Restricted Subsidiary have been duly
authorized and validly issued, and are fully paid and nonassessable, and there are no outstanding
commitments or other obligations of the Borrower or any Restricted Subsidiary to issue, and no
rights of any Person to acquire, any equity interests in the Borrower or any Restricted Subsidiary.



     Section 5.18. Other Agreements. Neither the Borrower nor any Restricted Subsidiary is in
default under the terms of any covenant, indenture or agreement of or affecting the Borrower, any
Restricted Subsidiary or any of their Property, which default if uncured could reasonably be
expected to have a Material Adverse Effect.



     Section 5.19. Governmental Authority and Licensing. The Borrower and its Restricted
Subsidiaries have received all licenses, permits, and approvals of all Governmental Authorities, if
any, necessary to conduct their businesses, in each case where the failure to obtain or maintain
the same could reasonably be expected to have a Material Adverse Effect. No investigation or
proceeding with respect to any such licenses, permits and approvals that, if adversely determined,
could reasonably be expected to result in a Material Adverse Effect is pending or, to the knowledge
of the Borrower and its Restricted Subsidiaries, threatened.



     Section 5.20. Approvals. No authorization, consent, license or exemption from, or filing or
registration with, any Governmental Authority, nor any approval or consent of any other Person, is
or will be necessary to the valid execution,



43









 




delivery or performance by the Borrower or any Restricted Subsidiary of any Loan Document,
except for such approvals which have been obtained prior to the date of this Agreement and remain
in full force and effect.




     Section 5.21. Affiliate Transactions. Except in connection with any Investment permitted
hereunder or as set forth in Schedule 5.21 hereof, neither the Borrower nor any Restricted
Subsidiary is a party to any contract or agreement with any of its Affiliates (other than any
contract or agreement between the Borrower and any Domestic Subsidiary which is a Guarantor or
between any Domestic Subsidiary which is a Guarantor and any other Domestic Subsidiary which is a
Guarantor) on terms and conditions which are less favorable, taken as a whole, to the Borrower or
such Restricted Subsidiary than would be usual and customary in similar contracts or agreements
between Persons not affiliated with each other.



     Section 5.22. Solvency. The Borrower and its Restricted Subsidiaries on a consolidated
basis (a) prior to the Closing Date, without giving effect to the Transactions, and (b) on and
after the Closing Date, after giving effect to the Transactions, are solvent, able to pay their
debts as they become due, and have sufficient capital to carry on their business and all businesses
in which they are about to engage.



     Section 5.23. Foreign Assets Control Regulations and Anti-Money Laundering. (a) OFAC.
Neither the Borrower nor any of its Restricted Subsidiaries is (i) a person whose property or
interest in property is blocked or subject to blocking pursuant to Section 1 of Executive Order
13224 of September 23, 2001 Blocking Party and Prohibiting Transactions With Persons Who Commit,
Threaten to Commit, or Support Terrorism (66 Fed. Reg. 49079 (2001)), (ii) a person who engages in
any dealings or transactions prohibited by Section 2 of such executive order, or is otherwise
associated with any such person in any manner violative of Section 2, or (iii) a person on the
list of Specially Designated Nationals and Blocked Persons or subject to the limitations or
prohibitions under any other U.S. Department of Treasury’s Office of Foreign Assets Control
regulation or executive order.



     (b) Patriot Act. The Borrower and its Restricted Subsidiaries are in compliance, in all
material respects, with the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October
26, 2001)) (the “Patriot Act”). No part of the proceeds of the Loans will be used, directly or
indirectly, for any payments to any governmental official or employee, political party, official of
a political party, candidate for political office, or anyone else acting in an official capacity,
in order to obtain, retain or direct business or obtain any improper advantage, in violation of the
United States Foreign Corrupt Practices Act of 1977, as Amended.



     (c) No Default. No Default has occurred and is continuing or would result from the
consummation of the transactions contemplated by this Agreement or any other Loan Document.




44












 





ARTICLE 6

Covenants




     The Borrower covenants and agrees that, so long as any Commitments are outstanding hereunder
and until all Obligations are paid in full:



     Section 6.01. Information Covenants. The Borrower will furnish to the Administrative Agent,
with sufficient copies for each Lender:



     (a) Quarterly Statements. Within 60 days after the close of each quarterly accounting period
in each fiscal year of the Borrower, a consolidated balance sheet as at the end of such quarterly
accounting period and the related consolidated statements of income and retained earnings and of
cash flows for such quarterly accounting period and for the elapsed portion of the fiscal year
ended with the last day of such quarterly accounting period, in each case setting forth comparative
figures for the related periods in the prior fiscal year, all of which shall be in reasonable
detail, prepared by the Borrower in accordance with GAAP, and certified by the chief financial
officer or other officer of the Borrower acceptable to the Administrative Agent that they fairly
present in all material respects in accordance with GAAP the financial condition of the Borrower
and its Restricted Subsidiaries as of the dates indicated and the results of their operations and
changes in their cash flows for the periods indicated, subject to normal year-end audit adjustments
and the absence of footnotes. Any items required to be delivered pursuant to this Section need not
to be separately delivered to the Administrative Agent if such items are publicly available through
the SEC; provided that such items are filed with the SEC within the time allotted in this Section
and, with respect to each such item other than a Form 10-K or a Form 10-Q, the Borrower furnishes
to the Administrative Agent within the time allotted in this Section a written or electronic notice
of such filing.



     (b) Annual Statements. Within 90 days after the close of each fiscal year of the Borrower, a
consolidated balance sheet as of the last day of the fiscal year then ended and the related
consolidated statements of income and retained earnings and of cash flows for the fiscal year then
ended, and accompanying notes thereto, each in reasonable detail showing in comparative form the
figures for the previous fiscal year, accompanied by an unqualified opinion (as to scope and going
concern) of a firm of independent public accountants of recognized national standing, selected by
the Borrower and acceptable to the Administrative Agent, to the effect that the consolidated
financial statements have been prepared in accordance with GAAP and present fairly in accordance
with GAAP the consolidated financial condition of the Borrower and its Restricted Subsidiaries as
of the close of such fiscal year and the results of their operations and cash flows for the fiscal
year then ended and that an examination of such accounts in connection with such financial
statements has been made in accordance with generally accepted auditing standards. Any items
required to be delivered pursuant to this Section need not to be separately delivered to the
Administrative Agent if such items are publicly available through the SEC; provided that such



45









 




items are filed with the SEC within the time allotted in this Section and, with respect to each such item other
than a Form 10-K or a Form 10-Q, the Borrower furnishes to the Administrative Agent within the time
allotted in this Section a written or electronic notice of such filing.




     (c) Officer’s Certificates. At the time of the delivery of the financial statements provided
for in Section 6.01(a) and (b), except for financial statements delivered pursuant to Section
6.01(a) with respect to a fiscal quarter that ends on the same date as the end of the Borrower’s
fiscal year, a certificate of the chief financial officer or other officer of the Borrower
acceptable to Administrative Agent in the form of Exhibit D (w) stating no Default or Event of
Default has occurred during the period covered by such statements or, if a Default or Event of
Default exists, a detailed description of the Default or Event of Default and all actions the
Borrower is taking with respect to such Default or Event of Default, (x) confirming that the
representations and warranties stated in Article 5 remain true and correct in all material respects
(except to the extent such representations and warranties relate to an earlier date, in which case
they are true and correct as of such date); (y) showing the Borrower’s compliance with the
covenants set forth in Section 6.18 hereof and (z) showing a reconciliation (in form, substance and
scope satisfactory to the Administrative Agent) of the financial statements delivered pursuant to
Section 6.01(a) and (b), as applicable, with the calculation of financial covenants set forth in
Section 6.18 hereof.



     (d) Notice of Default or Litigation. Promptly, and in any event within five Business Days
after any Responsible Officer obtains knowledge thereof, notice of (i) the occurrence of any event
which constitutes a Default or an Event of Default or any other event which could reasonably be
expected to have a Material Adverse Effect, which notice shall specify the nature thereof, the
period of existence thereof and what action the Borrower proposes to take with respect thereto,
(ii) the commencement of, or threat of, or any significant development in, any litigation, labor
controversy, arbitration, governmental proceeding or investigation pending against the Borrower or
any of its Restricted Subsidiaries which could reasonably be expected to have a Material Adverse
Effect.



     (e) Other Reports and Filings. Promptly, copies of all financial information, proxy materials
and other material information, certificates, reports, statements and completed forms, if any,
which the Borrower or any of its Restricted Subsidiaries (x) has filed with the Securities and
Exchange Commission or any governmental agencies substituted therefor (the “SEC”) or any comparable
agency outside of the United States or (y) has furnished to the shareholders or other security
holders of the Borrower or any of its Restricted Subsidiaries that is a public issuer. Any items
required to be delivered pursuant to this Section need not to be separately delivered to the
Administrative Agent if such items are publicly available through the SEC; provided that such items
are filed with the SEC within the time allotted in this Section and, with respect to each such item
other than a Form 10-K or a Form 10-Q, the Borrower furnishes to



46









 




the Administrative Agent within the time allotted in this Section a written or electronic
notice of such filing.




     (f) Environmental Matters. Promptly upon, and in any event within five Business Days after
any Responsible Officer obtains knowledge thereof, notice of one or more of the following
environmental matters which individually, or in the aggregate, may reasonably be expected to have a
Material Adverse Effect: (i) any notice of Environmental Claim against the Borrower or any of its
Subsidiaries or any real property, including leaseholds, owned or operated by the Borrower or any
of its Subsidiaries; (ii) any condition or occurrence on or arising from any real property,
including leaseholds, owned or operated by the Borrower or any of its Subsidiaries that (a) results
in noncompliance by the Borrower or any of its Subsidiaries with any applicable Environmental Law
or (b) could reasonably be expected to form the basis of an Environmental Claim against, or result
in liability under any Environmental Law to, the Borrower or any of its Subsidiaries or any such
real property; (iii) any condition or occurrence on any real property, including leaseholds, owned
or operated by the Borrower or any of its Subsidiaries that could reasonably be expected to cause
such real property to be subject to any restrictions on the ownership, occupancy, use or
transferability by the Borrower or any of its Subsidiaries of such real property under any
Environmental Law; and (iv) any removal or remedial actions to be taken in response to the actual
or alleged presence of any Hazardous Material on any real property, including leaseholds, owned or
operated by the Borrower or any of its Subsidiaries as required by any Environmental Law or any
Governmental Authority. All such notices shall describe in reasonable detail the nature of the
Environmental Claim, condition or occurrence or removal or remedial action to be undertaken by the
Borrower or such Subsidiary. In addition, the Borrower agrees to provide the Lenders with copies
of all material written communications by the Borrower or any of its Subsidiaries with any Person
or Governmental Authority relating to any of the matters set forth in clauses (i)-(iv) above, and
such detailed reports relating to any of the matters set forth in clauses (i)-(iv) above as may
reasonably be requested by the Administrative Agent or the Required Lenders.



     (g) Other Information. From time to time, such other information or documents (financial or
otherwise) relating to the Borrower or its Restricted Subsidiaries as the Administrative Agent or
any Lender may reasonably request.



     The Borrower hereby acknowledges that (i) the Administrative Agent and/or the Lead Arrangers
will make available to the Lenders materials and/or information provided by or on behalf of the
Borrower hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on
IntraLinks or another similar electronic system (the “Platform”) and (ii) certain of the Lenders
(each, a “Public Lender”) may have personnel who do not wish to receive material non-public
information with respect to the Borrower or its respective Affiliates, or the respective securities
of any of the foregoing, and who may be engaged in investment and other market-related activities
with respect to such Persons’ securities. The Borrower hereby agrees that (w) all Borrower
Materials



47









 




that are to be made available to Public Lenders shall be clearly and conspicuously marked
“PUBLIC” which, at a minimum, shall mean that the word “PUBLIC” shall appear prominently on the
first page thereof; (x) by marking Borrower Materials “PUBLIC,” the Borrower shall be deemed to
have authorized the Administrative Agent, the Lead Arrangers and the Lenders to treat such Borrower
Materials as not containing any material non-public information with respect to the Borrower or its
respective securities for purposes of United States Federal and state securities Laws (provided,
however, that to the extent such Borrower Materials constitute Information, they shall be treated
as set forth in Section 10.16); (y) all Borrower Materials marked “PUBLIC” are permitted to be made
available through a portion of the Platform designated “Public Investor;” and (z) the
Administrative Agent and the Lead Arrangers shall treat any Borrower Materials that are not marked
“PUBLIC” as not being suitable for posting on a portion of the Platform designated “Public
Investor.”




     Section 6.02. Inspections. The Borrower will, and will cause each of its Restricted
Subsidiaries to, permit officers, representatives and agents of the Administrative Agent or any
Lender, to visit and inspect any Property of the Borrower or such Restricted Subsidiary, and to
examine the books of account of the Borrower or such Restricted Subsidiary and discuss the affairs,
finances and accounts of the Borrower or such Restricted Subsidiary with its and their officers and
independent accountants, all at such reasonable times upon reasonable advance notice as the
Administrative Agent or any Lender may request; provided, however, that prior to the occurrence and
continuance of an Event of Default, such visitations and inspections shall be no more frequent than
once per fiscal year and shall be at the sole cost and expense of the Administrative Agent or such
Lender.



     Section 6.03. Maintenance of Property, Insurance, Environmental Matters, etc. (a) The
Borrower will, and will cause each of its Restricted Subsidiaries to, (i) keep its operating
property, plant and equipment in good repair, working order and condition, normal wear and tear
excepted, and shall from time to time make all needful and proper repairs, renewals, replacements,
extensions, additions, betterments and improvements thereto so that at all times such property,
plant and equipment are reasonably preserved and maintained and (ii) maintain in full force and
effect with financially sound and reputable insurance companies insurance which provides
substantially the same (or greater) coverage and against at least such risks as is in accordance
with industry practice for operating plant and equipment, and shall furnish to the Administrative
Agent upon request full information as to the insurance so carried.



     (b) Without limiting the generality of Section 6.03(a), the Borrower and its Restricted
Subsidiaries, except to the extent that the aggregate affect could not reasonably be expected to
have a Material Adverse Effect: (i) shall comply with, and maintain all real property in compliance
with, any applicable Environmental Laws; (ii) shall obtain and maintain in full force and effect
all governmental approvals required for its operations at or on its properties by any applicable



48









 




Environmental Laws; (iii) shall cure as soon as reasonably practicable any violation of
applicable Environmental Laws with respect to any of its properties; (iv) shall not, and shall not
permit any other Person to, own or operate on any of its properties any unauthorized landfill or
dump or hazardous waste treatment, storage or disposal facility as defined pursuant to the RCRA, or
any comparable state, provincial or territorial law, or any comparable law of any other
jurisdiction; and (v) shall not use, generate, transport, treat, store, release or dispose of
Hazardous Materials at or on any of the real property except in the ordinary course of its business
and in compliance with all Environmental Laws. With respect to any Release of Hazardous Materials,
the Borrower and its Restricted Subsidiaries shall conduct any necessary or required investigation,
study, sampling and testing, and undertake any cleanup, removal, remedial or other response action
necessary to remove, cleanup or abate any material quantity of Hazardous Materials released at or
on any of its properties as required by any applicable Environmental Law.




     Section 6.04. Preservation of Existence. The Borrower will, and will cause each of its
Restricted Subsidiaries to, do or cause to be done, all things necessary to preserve and keep in
full force and effect its existence and, except where the failure to do so would not reasonably be
expected to have a Material Adverse Effect, its franchises, authority to do business, licenses,
patents, trademarks, copyrights and other proprietary rights; provided, however, that nothing in
this Section 6.04 shall prevent, to the extent permitted by Section 6.15, sales of assets by the
Borrower or any of its Restricted Subsidiaries, the dissolution or liquidation of any Restricted
Subsidiary of the Borrower, or the merger or consolidation between or among the Restricted
Subsidiaries of the Borrower or any other transaction not expressly prohibited hereunder.



     Section 6.05. Compliance with Laws. The Borrower shall, and shall cause each Restricted
Subsidiary to, comply in all respects with the requirements of all Laws applicable to its property
or business operations, where any such non-compliance, individually or in the aggregate, could
reasonably be expected to have a Material Adverse Effect or result in a Lien upon any of its
Property other than a Permitted Lien.



     Section 6.06. ERISA. The Borrower shall, and shall cause each of its Restricted
Subsidiaries to, promptly pay and discharge all obligations and liabilities arising under ERISA of
a character which if unpaid or unperformed could reasonably be expected to have a Material Adverse
Effect. The Borrower shall, and shall cause each of its Restricted Subsidiaries to, promptly
notify the Administrative Agent and each Lender of: (a) the occurrence of any reportable event (as
defined in ERISA) with respect to a Plan and such occurrence could reasonably be expect to have a
Material Adverse Effect, (b) receipt of any notice from the PBGC of its intention to seek
termination of any Plan or appointment of a trustee therefor, (c) its intention to terminate or
withdraw from any Plan for which the reporting requirements are not waived and such termination or
withdrawal could reasonably be expect to have a Material Adverse Effect, and (d)



49









 




the occurrence of any event with respect to any Plan which would result in the incurrence by
the Borrower or any of its Restricted Subsidiaries of any material liability, fine or penalty, or
any material increase in the contingent liability of the Borrower or any of its Restricted
Subsidiaries with respect to any post-retirement Welfare Plan benefit and such liability, fine or
penalty or increase in the contingent liability could reasonably be expected to have a Material
Adverse Effect.




     Section 6.07. Payment of Taxes. The Borrower will, and will cause each of its Restricted
Subsidiaries to, pay and discharge, all taxes, assessments, fees and other governmental charges
imposed upon it or any of its Property, before becoming delinquent and before any penalties accrue
thereon, unless and to the extent that the same are being contested in good faith and by proper
proceedings and as to which appropriate reserves are provided therefor, unless and until any Lien
resulting therefrom attaches to any of its Property.



     Section 6.08. Books and Records. The Borrower will, and will cause each of its Restricted
Subsidiaries to (a) maintain proper books of record and account, in which full, true and correct
entries in conformity with GAAP or in the case of any Foreign Subsidiary, GAAP as in effect in any
applicable local jurisdiction, consistently applied shall be made of all financial transactions and
matters involving the assets and business of the Borrower or such Restricted Subsidiary, as the
case may be; and (b) maintain such books of record and account in material conformity with all
applicable requirements of any Governmental Authority having regulatory jurisdiction over the
Borrower or such Restricted Subsidiary, as the case may be.



     Section 6.09. Contracts with Affiliates. Except in connection with any Investment permitted
hereunder, the Borrower shall not, nor shall it permit any of its Restricted Subsidiaries to, enter
into any contract, agreement or business arrangement with any of its Affiliates (other than any
arrangement between the Borrower and any Domestic Subsidiary which is a Guarantor or between any
Domestic Subsidiary which is a Guarantor and any other Domestic Subsidiary which is a Guarantor) on
terms and conditions which are less favorable to the Borrower or such Restricted Subsidiary than
would be usual and customary in similar contracts, agreements or business arrangements between
Persons not affiliated with each other.



     Section 6.10. No Changes in Fiscal Year. The Borrower shall not change its fiscal year from
its present basis.



     Section 6.11. Change in the Nature of Business. The Borrower shall not, nor shall it permit
any of its Restricted Subsidiaries to, engage in any business or activity if as a result the
general nature of the business of the Borrower or any Restricted Subsidiary would be changed in any
material respect from the general nature of the business engaged in by it as of the date hereof;
provided, however, that the foregoing shall not prevent the acquisition by the Borrower or any of
its



50









 




Restricted Subsidiaries of, or the entry into, any line of business that is related or
complementary to the business in which they are engaged on the date hereof. Notwithstanding
anything to the contrary herein, the Borrower shall not permit Cleveland-Cliffs International
Holding Company to (a) own any assets other than equity interests in Foreign Subsidiaries, (b)
construct, create, incur, assume or suffer to exist any Indebtedness (other than as permitted
pursuant to Section 6.12(b)), and (c) create, incur or suffer to exist any Lien created for the
purpose of securing Indebtedness.




     Section 6.12. Indebtedness. The Borrower will not, nor will it permit any of its Restricted
Subsidiaries to, contract, create, incur, assume or suffer to exist any Indebtedness, except:



     (a) the Obligations of the Borrower and its Restricted Subsidiaries owing to the
Administrative Agent and the Lenders (and their Affiliates);



     (b) intercompany Indebtedness among the Borrower and its Restricted Subsidiaries to the extent
permitted by Section 6.15;



     (c) (i) purchase money Indebtedness of the Borrower and its Restricted Subsidiaries, including
any such Indebtedness assumed in connection with a Permitted Acquisition, (ii) Capitalized Lease
Obligations of the Borrower and its Restricted Subsidiaries, including any such obligations assumed
in connection with a Permitted Acquisition, and (iii) Indebtedness incurred to finance the
acquisition, construction or improvement of any fixed or capital assets (“Project Indebtedness”),
including any Indebtedness assumed in connection with the acquisition of any such assets or secured
by a Lien on such assets before the acquisition thereof, and any refinancings of any such Project
Indebtedness; provided that, with respect to Project Indebtedness permitted by clause (iii) of this
Section, (w) such Project Indebtedness is initially incurred before or within 180 days after such
acquisition or the completion of such construction or improvement, (x) such Project Indebtedness
shall be secured only by the Property acquired, constructed or improved in connection with the
incurrence of such Project Indebtedness, (y) with respect to such Project Indebtedness assumed in
connection with a Permitted Acquisition, the amount of such Project Indebtedness shall not exceed
60% of the Total Consideration paid in connection with such Permitted Acquisition and (z) with
respect to Project Indebtedness incurred to finance the acquisition of any fixed or capital assets,
such Project Indebtedness shall constitute not less than 80% of the aggregate consideration paid
with respect to such Property;



     (d) customer advances for prepayment of ore sales;



     (e) Indebtedness under the Portman Limited Facility in an aggregate principal amount not to
exceed at any time outstanding the U.S. Dollar Equivalent of $120,000,000 Australian Dollars;



51









 





     (f) Hedging Liability to any Person, in all cases incurred in the ordinary course of business
and not for speculative purposes;



     (g) Indebtedness in respect of bid, performance, surety, reclamation or other similar bonds or
guaranties in the ordinary course of business, or any similar financial assurance obligations under
Environmental Laws or worker’s compensation Laws or with respect to self-insurance obligations,
including guarantees or obligations with respect to letters of credit supporting such obligations
(in each case other than for an obligation for money borrowed);



     (h) Contingent Obligations in respect of Indebtedness otherwise permitted under this Section
6.12;



     (i) Indebtedness incurred in connection with any sale/leaseback transaction permitted pursuant
to Section 6.14(e) hereof;



     (j) Indebtedness of Non-Guarantor Subsidiaries not otherwise permitted by this Section;
provided that the aggregate amount at any time outstanding of all such Indebtedness plus
Indebtedness of the Borrower and all Restricted Subsidiaries secured by Liens shall not exceed 20%
of Net Worth as measured as of the end of the most recently completed fiscal quarter prior to the
incurrence of such Indebtedness;



     (k) unsecured Indebtedness of Non-Guarantor Subsidiaries, not otherwise permitted under clause
(j); provided that the ratio of Total Funded Debt to EBITDA of the Borrower and all Restricted
Subsidiaries, after giving pro forma effect to the incurrence of such Indebtedness is less than
2.50 to 1.00, as measured as of the end of the most recently completed fiscal quarter prior to the
incurrence of such Indebtedness;



     (l) Indebtedness pursuant to the senior secured bonds issued by the Target pursuant to that
Trust Indenture, dated as of January 29, 2010, between the Target and Computershare Trust Company
of Canada;



     (m) Indebtedness (i) pursuant to the convertible debentures issued by the Target pursuant to
that Trust Indenture, dated as of November 29, 2010, between the Target and Equity Financial Trust
Company and (ii) under the SK Credit Agreement, dated as of December 24, 2009, between the Target
and SK Networks Co. Ltd.; and



     (n) unsecured Indebtedness of the Borrower and the Guarantors not otherwise permitted by this
Section.



     Section 6.13. Liens. The Borrower will not, nor will it permit any of its Restricted
Subsidiaries to, create, incur or suffer to exist any Lien on any of its Property; provided that
the foregoing shall not prevent the following (the Liens described below, the “Permitted Liens”):



52









 





     (a) Standard Permitted Liens;



     (b) Liens on Property of the Borrower or any Restricted Subsidiary created solely for the
purpose of securing Indebtedness permitted by Section 6.12(c) hereof, representing or incurred to
finance such Property, provided that, with respect to Indebtedness described in clauses (i) and
(ii) of such Section, no such Lien shall extend to or cover other Property of the Borrower or such
Restricted Subsidiary other than the respective Property so acquired, and the principal amount of
Indebtedness secured by any such Lien shall at no time exceed the purchase price of such Property,
as reduced by repayments of principal thereon;



     (c) any Lien in existence on the date hereof and set forth on Schedule 6.13, any continuation
or extension thereof or any Lien granted as a replacement or substitute therefor; provided that any
such continued, extended, replacement or substitute Lien (i) except as permitted by Section 6.12,
does not secure an aggregate amount of Indebtedness, if any, greater than that secured on the date
hereof, and (ii) does not encumber any Property other than the Property subject thereto on the date
hereof and any products or proceeds thereof to the extent covered by such Lien;



     (d) Liens on Property of the Borrower or any Restricted Subsidiary created solely for the
purpose of securing Indebtedness permitted by Section 6.12(i); provided that any such Liens attach
only to the Property being leased or acquired pursuant to such Indebtedness and do not encumber any
other Property (other than any products or proceeds thereof to the extent covered by such Liens);



     (e) Liens solely on any cash earnest money deposits in connection with any letter of intent or
purchase agreement entered into in connection with a Permitted Acquisition;



     (f) Liens on cash or Cash Equivalents securing reimbursement obligations with respect to any
standby letter of credit entered into in the ordinary course of business; provided that the
aggregate stated amount of such letters of credit at any time outstanding shall not exceed the
lesser of (i) $50,000,000 and (ii) the aggregate stated amount of such letters of credit permitted
to be outstanding at any time under the Revolver;



     (g) Liens solely on the assets of the Cliffs Sonoma Entities in favor of the Cliffs Sonoma
Entities’ joint venture partners in Sonoma; provided, that such Liens shall secure only amounts
owed by Sonoma and the Cliffs Sonoma Entities to such joint venture partners;



     (h) Liens on Property of the Target or its Subsidiaries existing on the Effective Date and
securing Indebtedness permitted by Section 6.12(l) and Liens on cash and Cash Equivalents as
required to give effect to a Thompson Bond Defeasance;



53









 





     (i) other Liens with respect to obligations that do not in the aggregate exceed $10,000,000 at
any time outstanding; and



     (j) Liens securing Indebtedness; provided that the aggregate amount of such secured
Indebtedness at any time outstanding plus the Indebtedness of Non-Guarantor Subsidiaries under
Section 6.12(j), without duplication, shall not exceed 20% of Net Worth as measured as of the end
of the most recently completed fiscal quarter prior to the incurrence of such Indebtedness.



     Section 6.14. Consolidation, Merger, Sale of Assets, etc. The Borrower will not, nor will
it permit any of its Restricted Subsidiaries to, wind up, liquidate or dissolve its affairs or
agree to any merger, amalgamation or consolidation, or convey, sell, lease or otherwise dispose of
all or any part of its operating properties, including any disposition as part of any
sale-leaseback transactions except that this Section shall not prevent:



     (a) the sale and lease of inventory in the ordinary course of business;



     (b) the sale, transfer or other disposition of any tangible personal property that, in the
reasonable judgment of the Borrower or its Restricted Subsidiaries, has become uneconomic, obsolete
or worn out;



     (c) the sale, transfer, lease, or other disposition of Property of the Borrower and its
Wholly-Owned Subsidiaries which are Restricted Subsidiaries to one another;



     (d) the merger of any Wholly-Owned Subsidiary with and into the Borrower or any other
Wholly-Owned Subsidiary, provided that, (i) in the case of any merger involving the Borrower, the
Borrower is the legal entity surviving the merger and (ii) in the case of any merger involving a
Domestic Subsidiary which is a Restricted Subsidiary and a Foreign Subsidiary which is a Restricted
Subsidiary, such Domestic Subsidiary is the legal entity surviving the merger (provided, that in
the case of a merger, amalgamation or consolidation between 7261489 Canada Inc. or Wabush Resources
Inc. and Wabush Iron Co. Limited, either 7261489 Canada Inc. or Wabush Resources Inc. may be the
surviving entity);



     (e) the sale, transfer, lease, or other disposition of Property of the Borrower or any
Restricted Subsidiary (including any disposition of Property as part of a sale and leaseback
transaction) aggregating for the Borrower and its Restricted Subsidiaries not more than $10,000,000
during any fiscal year of the Borrower;



     (f) the sale of the common stock of Polymet Mining Corp. by the Borrower or the sale of the
assets or the common stock of either Cliffs Erie or Golden West Resources Ltd.;



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     (g) the sale of all of the stock of or all or substantially all of the assets of Cliffs
Synfuel Corp.;



     (h) any Restricted Subsidiary may dissolve, liquidate or wind up its affairs at any time;
provided that such dissolution, liquidation or winding up, as applicable, would not reasonably be
expected to result in a Material Adverse Effect;



     (i) licenses or leases of real or personal property in the ordinary course of business so long
as such licenses or leases do not individually or in the aggregate interfere in any material
respect with the ordinary conduct of the business of the Borrower and its Restricted Subsidiaries;



     (j) licenses, sublicenses or similar transactions of intellectual property in the ordinary
course of business so long as such licenses or sublicenses or similar transactions do not
individually or in the aggregate interfere in any material respect with the ordinary conduct of the
business of the Borrower and its Restricted Subsidiaries;



     (k) the sale or other disposition of those Investments permitted by clauses (f), (l) and (p)
of the definition of Restricted Investments;



     (l) any merger or consolidation of the Borrower or any Restricted Subsidiary in connection
with a Permitted Acquisition, provided that (i) subject to the following clause (ii), in the case
of any merger involving any Wholly-Owned Subsidiary which is a Restricted Subsidiary, such
Wholly-Owned Subsidiary is the legal entity surviving the merger, (ii) in the case of any merger
involving the Borrower, the Borrower is the legal entity surviving the merger, and (iii) in the
case of any merger involving a Foreign Subsidiary which is a Restricted Subsidiary and a Domestic
Subsidiary which is a Restricted Subsidiary, such Domestic Subsidiary is the legal entity surviving
the merger;



     (m) the sale, transfer, lease, or other disposition of Property of the Borrower or any
Restricted Subsidiary, in any single transaction or series of related transactions, which are not
sales, transfers, leases, or disposition of all or substantially all of the assets of the Borrower
and its Restricted Subsidiaries, taken as a whole; provided that the Borrower shall be in pro forma
compliance with Section 6.18 hereof and in the case of any sale, lease, transfer or other
disposition in excess of $100,000,000 shall deliver to the Administrative Agent at least 5 Business
Days (or such shorter period as may be agreed by the Administrative Agent) prior to any such
transaction a certificate confirming such pro forma compliance with Section 6.18; and



     (n) the plan of arrangement pursuant to the Arrangement Agreement.



     Section 6.15. Restricted Investments Prohibited. The Borrower will not, nor will it permit
any of its Restricted Subsidiaries to, have, make or authorize any Restricted Investments.



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     Section 6.16. Dividends and Certain Other Restricted Payments. After the occurrence and
during the continuation of a Default or an Event of Default, the Borrower shall not, nor shall it
permit any of its Restricted Subsidiaries to, (a) declare or pay any dividends on or make any other
distributions in respect of any class or series of its capital stock or other equity interests
(other than a dividend payable solely in stock or other equity interests) or (b) directly or
indirectly purchase, redeem, or otherwise acquire or retire any of its capital stock or other
equity interests or any warrants, options, or similar instruments to acquire the same; provided,
however, that the foregoing shall not operate to prevent the making of dividends or distributions
by any Restricted Subsidiary of the Borrower to its parent corporation.



     Section 6.17. OFAC. The Borrower will not, nor will it permit any of its Restricted
Subsidiaries to, (a) become a person whose property or interests in property are blocked or subject
to blocking pursuant to Section 1 of Executive Order 13224 of September 23, 2001 Blocking Party and
Prohibiting Transactions With Persons Who Commit, Threaten to Commit or Support Terrorism (66 Fed.
Reg. 49079(2001), (b) engage in any dealings or transactions prohibited by Section 2 of such
executive order, or be otherwise associated with any such person in any manner violative of Section
2, or (c) otherwise become a person on the list of Specially Designated Nationals and Blocked
Persons or subject to the limitations or prohibitions under any other U.S. Department of Treasury’s
Office of Foreign Assets Control regulation or executive order.



     Section 6.18. Financial Covenants. (a) Maximum Ratio of Total Funded Debt to EBITDA. The
Borrower shall not, as of the last day of each fiscal quarter of the Borrower, permit the Leverage
Ratio to be more than 3.25 to 1.00.



     (b) Minimum Interest Coverage Ratio. The Borrower shall not, as of the last day of each
fiscal quarter of the Borrower, permit the Interest Coverage Ratio at such time to be less than
2.50 to 1.00.



     Section 6.19. Limitation on Non-Material Subsidiaries. The Borrower shall not permit (a),
at any time, the aggregate book value of the assets of all Domestic Subsidiaries that are not
Material Subsidiaries to exceed 30% of the value of the consolidated assets of the Borrower and its
Restricted Subsidiaries or (b), as of the last day of each fiscal quarter of the Borrower, the
aggregate revenues of all Domestic Subsidiaries that are not Material Subsidiaries for the four
fiscal quarters of the Borrower then ended to exceed 30% of the consolidated revenues of the
Borrower and its Restricted Subsidiaries for such four fiscal quarters.



     Section 6.20. Limitation on Assets and Operations of Cliffs Sonoma Entities. The Borrower
shall not permit the Cliffs Sonoma Entities to own any assets other than in connection with Sonoma
and any other assets necessary or incidental thereto, and the Borrower shall not permit the Cliffs
Sonoma Entities to



56









 




engage in any business or activity other than in connection with Sonoma and any other
activities necessary or incidental thereto.




     Section 6.21. Repayment of Target Indebtedness. Concurrently with the Arrangement Effective
Date, substantially all of the existing Indebtedness of the Target and its subsidiaries (other than
(i) the convertible debentures issued by the Target pursuant to that Trust Indenture, dated as of
November 29, 2010, between the Target and Equity Financial Trust Company, (ii) indebtedness under
the SK Credit Agreement, dated as of December 24, 2009, between the Target and SK Networks Co. Ltd.
and (iii) other Indebtedness not to exceed $400,000,000 in the aggregate) shall be repaid,
addressed by a Thompson Bond Reorganization or defeased pursuant to a Thompson Bond Defeasance.



ARTICLE 7

Events of Default and Remedies




     Section 7.01. Events of Default. Any one or more of the following shall constitute an
“Event of Default” hereunder:



     (a) default in the payment when due (whether at the stated maturity thereof or at any other
time provided for in this Agreement) of (i) all or any part of the principal of or (ii) interest on
any Loan or any other Obligation payable hereunder or under any other Loan Document which in the
case of this clause (ii) is not paid within 5 Business Days;



     (b) default in the observance or performance of any covenant set forth in Sections 6.04, 6.12,
6.13, 6.14, 6.15, 6.17, 6.18 or 6.21 hereof;



     (c) default in the observance or performance of any other provision hereof or of any other
Loan Document which is not remedied within 30 days after the earlier of (i) the date on which such
failure shall first become known to any Responsible Officer or (ii) written notice thereof is given
to the Borrower by the Administrative Agent;



     (d) any representation or warranty made by the Borrower or any of its Restricted Subsidiaries
herein or in any other Loan Document, or in any statement or certificate furnished by it pursuant
hereto or thereto, or in connection with the Loans, proves untrue in any material respect as of the
date of the issuance or making thereof;



     (e) any of the Loan Documents shall for any reason not be or shall cease to be in full force
and effect or is declared to be null and void, or the Borrower or any of its Restricted
Subsidiaries takes any action for the purpose of terminating, repudiating or rescinding any Loan
Document executed by it or any of its obligations thereunder that is not permitted hereunder;



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     (f) default shall occur under (i) any Indebtedness of the Borrower or any of its Restricted
Subsidiaries aggregating in excess of $50,000,000 (or such greater amount not to exceed $75,000,000
as may provide a threshold for the corresponding event of default under the Revolver), or under any
indenture, agreement or other instrument under which the same may be issued, and such default shall
continue for a period of time sufficient to permit the acceleration of the maturity of any such
Indebtedness (whether or not such maturity is in fact accelerated), or any such Indebtedness shall
not be paid when due (whether by demand, lapse of time, acceleration or otherwise) or (ii) any
Hedge Agreement of the Borrower or any Restricted Subsidiary with any Lender or any Affiliate of a
Lender;



     (g) any judgment or judgments, writ or writs or warrant or warrants of attachment, or any
similar process or processes, shall be entered or filed against the Borrower or any of its
Restricted Subsidiaries, or against any of its Property, in an aggregate amount in excess of
$50,000,000 (or such greater amount not to exceed $75,000,000 as may provide a threshold for the
corresponding event of default under the Revolver) (except to the extent fully (excluding any
deductibles or self-insured retention) covered by insurance pursuant to which the insurer has
accepted liability therefor in writing), and which remains undischarged, unvacated, unbonded or
unstayed for a period of 30 days;



     (h) the Borrower or any of its Restricted Subsidiaries, or any member of its Controlled Group,
shall fail to pay when due an amount or amounts aggregating in excess of $25,000,000 which it shall
have become liable to pay to the PBGC or to a Plan under Title IV of ERISA; or notice of intent to
terminate a Plan or Plans having aggregate Unfunded Vested Liabilities in excess of $25,000,000
(collectively, a “Material Plan”) shall be filed under Title IV of ERISA by the Borrower or any of
its Restricted Subsidiaries, or any other member of its Controlled Group, any plan administrator or
any combination of the foregoing; or the PBGC shall institute proceedings under Title IV of ERISA
to terminate or to cause a trustee to be appointed to administer any Material Plan or a proceeding
shall be instituted by a fiduciary of any Material Plan against the Borrower or any of its
Restricted Subsidiaries, or any member of its Controlled Group, to enforce Section 515 or
4219(c)(5) of ERISA and such proceeding shall not have been dismissed within 30 days thereafter; or
a condition shall exist by reason of which the PBGC would be entitled to obtain a decree
adjudicating that any Material Plan must be terminated;



     (i) any Change of Control shall occur;



     (j) the Borrower or any of its Restricted Subsidiaries shall (i) have entered involuntarily
against it an order (or the filing of a notice of intention in respect of a case or proceeding in
respect thereof) for relief under any Debtor Relief Law, (ii) not pay, or admit in writing its
inability to pay, its debts generally as they become due, (iii) make an assignment for the benefit
of creditors, (iv) apply for, seek, consent to or acquiesce in, the appointment of a receiver,



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interim receiver, receiver and manager, custodian, trustee, examiner, liquidator or similar official
for it or any substantial part of its Property, (v) institute any proceeding seeking to have
entered against it an order for relief under any Debtor Relief Law, to adjudicate it insolvent, or
seeking dissolution, winding up, liquidation, reorganization, arrangement, adjustment or
composition of it or its debts under any Debtor Relief Law or fail to file an answer or other
pleading denying the material allegations of any such proceeding filed against it, (vi) take any
corporate action in furtherance of any matter described in parts (i) through (v) above, or (vii)
fail to contest in good faith any appointment or proceeding described in Section 7.01(k) hereof; or




     (k) a custodian, receiver, interim receiver, receiver and manager, trustee, examiner,
liquidator or similar official shall be appointed for the Borrower or any of its Restricted
Subsidiaries, or any substantial part of any of its Property, or a proceeding described in Section
7.01(j)(v) shall be instituted against the Borrower or any of its Restricted Subsidiaries, and such
appointment continues undischarged or such proceeding continues undismissed or unstayed for a
period of 60 days.



     Section 7.02. Non-Bankruptcy Defaults. When any Event of Default other than those described
in subsection (j) or (k) of Section 7.01 hereof has occurred and is continuing at any time after
the Closing Date, the Administrative Agent shall, by written notice to the Borrower, if so directed
by the Required Lenders, declare the principal of and the accrued interest on all outstanding Loans
to be forthwith due and payable and thereupon all outstanding Loans, including both principal and
interest thereon, shall be and become immediately due and payable together with all other amounts
payable under the Loan Documents without further demand, presentment, protest or notice of any
kind. The Administrative Agent, after giving notice to the Borrower pursuant to Section 7.01(c) or
this Section 7.02, shall also promptly send a copy of such notice to the other Lenders, but the
failure to do so shall not impair or annul the effect of such notice.



     Section 7.03. Bankruptcy Defaults. When any Event of Default described in subsections (j)
or (k) of Section 7.01 hereof (i) has occurred and is continuing at any time on or prior to the
Closing Date, then the Commitment of each Lender shall immediately and automatically terminate and
(ii) has occurred and is continuing at any time after the Closing Date, all outstanding Loans shall
immediately and automatically become due and payable together with all other amounts payable under
the Loan Documents without presentment, demand, protest or notice of any kind which are hereby
waived by the Borrower.



     Section 7.04. Notice of Default. The Administrative Agent shall give notice to the Borrower
under Section 7.01(c) hereof promptly upon being requested to do so by any Lender and shall
thereupon notify all the Lenders thereof.



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     Section 7.05. Expenses. The Borrower agrees to pay to the Administrative Agent and each
Lender, and any other holder of any Loans outstanding hereunder, all costs and expenses reasonably
incurred or paid by the Administrative Agent and such Lender or any such holder, including
reasonable attorneys’ fees and court costs, in connection with any Default or Event of Default by
the Borrower hereunder or in connection with the enforcement of any of the Loan Documents
(including all such costs and expenses incurred in connection with any proceeding under any Debtor
Relief Law involving the Borrower or any of its Restricted Subsidiaries as a debtor thereunder).



ARTICLE 8

Change in Circumstances and Contingencies




     Section 8.01. Funding Indemnity. If any Lender shall incur any loss, cost or expense
(including, without limitation, any loss of profit, and any loss, cost or expense incurred by
reason of the liquidation or re-employment of deposits or other funds acquired by such Lender to
fund or maintain any Eurodollar Loan or the relending or reinvesting of such deposits or amounts
paid or prepaid to such Lender or by reason of breakage of interest rate swap agreements or the
liquidation of other hedging contracts or agreements) as a result of:



     (a) any payment, prepayment or conversion of a Eurodollar Loan on a date other than the last
day of its Interest Period,



     (b) any failure (because of a failure to meet the conditions of Article 3 or otherwise) by the
Borrower to borrow or continue a Eurodollar Loan, or to convert a Base Rate Loan into a Eurodollar
Loan, on the date specified in a notice given pursuant to Section 2.03(a) hereof,



     (c) any failure by the Borrower to make any payment of principal on any Eurodollar Loan when
due (whether by acceleration or otherwise), or



     (d) any acceleration of the maturity of a Eurodollar Loan as a result of the occurrence of any
Event of Default hereunder,


then, upon the demand of such Lender, the Borrower shall pay to such Lender such amount as will
reimburse such Lender for such loss, cost or expense. The Borrower shall also pay any customary
administrative fees charged by such Lender in connection with the foregoing. If any Lender makes
such a claim for compensation, it shall provide to the Borrower, with a copy to the Administrative
Agent, a certificate setting forth the amount of such loss, cost or expense in reasonable detail
(including an explanation of the basis for and the computation of such loss, cost or expense) and
the amounts shown on such certificate shall be conclusive absent manifest error.




     Unless otherwise agreed to by any Lender, for purposes of calculating amounts payable by the
Borrower to such Lender under this Section 8.01, such



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Lender shall be deemed to have funded each Eurodollar Loan made by it at rate equal to LIBOR
for such Loan by a matching deposit or other borrowing in the offshore interbank market for U.S.
Dollars for a comparable amount and for a comparable period, whether or not such Eurodollar Loan
was in fact so funded.




     Section 8.02. Illegality. If any Lender determines that any Law has made it unlawful for
any Lender or its applicable Lending Office to make, maintain or fund Eurodollar Loans, or to
determine or charge interest rates based upon LIBOR, or any Governmental Authority has imposed
material restrictions on the authority of such Lender to purchase or sell, or to take deposits of,
U.S. Dollars in the applicable interbank market, then, on notice thereof by such Lender to the
Borrower through the Administrative Agent, any obligation of such Lender to make or continue
Eurodollar Loans, to convert Base Rate Loans to Eurodollar Loans, shall be suspended until such
Lender notifies the Administrative Agent and the Borrower that the circumstances giving rise to
such determination no longer exist. Upon receipt of such notice, the Borrower shall, upon demand
from such Lender (with a copy to the Administrative Agent), prepay or, if applicable, convert all
such Eurodollar Loans of such Lender to Base Rate Loans, either on the last day of the Interest
Period therefor, if such Lender may lawfully continue to maintain such Eurodollar Loans to such
day, or immediately, if such Lender may not lawfully continue to maintain such Eurodollar Loans.
Upon any such prepayment or conversion, the Borrower shall also pay accrued interest on the amount
so prepaid or converted.



     Section 8.03. Inability to Determine Rates. If the Required Lenders determine that for any
reason in connection with any request for a Eurodollar Loan or a conversion to or continuation
thereof that (a) deposits are not being offered to banks in the applicable offshore interbank
market for U.S. Dollars for the applicable amount and Interest Period of such Eurodollar Loan, (b)
adequate and reasonable means do not exist for determining LIBOR for any requested Interest Period
with respect to a proposed Eurodollar Loan, or (c) LIBOR for any requested Interest Period with
respect to a proposed Eurodollar Loan does not adequately and fairly reflect the cost to such
Lenders of funding such Eurodollar Loan, the Administrative Agent will promptly so notify the
Borrower and each Lender. Thereafter, the obligation of the Lenders to make or maintain Eurodollar
Loans shall be suspended until the Administrative Agent (upon the instruction of the Required
Lenders) revokes such notice. Upon receipt of such notice, the Borrower may revoke any pending
request for a Borrowing of, conversion to or continuation of Eurodollar Loans or, failing that,
will be deemed to have converted such request into a request for a Borrowing of Base Rate Loans in
the amount specified therein.



     Section 8.04. Increased Costs; Reserves on Eurodollar Loans.



     (a) Increased Costs Generally. If any Change in Law shall:



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     (i) impose, modify or deem applicable any reserve, special deposit, compulsory loan,
insurance charge or similar requirement against assets of, deposits with or for the
account of, or credit extended or participated in by, any Lender (except any reserve
requirement contemplated by Section 8.04(e), other than as set forth below);




     (ii) subject any Lender to any tax of any kind whatsoever with respect to this
Agreement or any Eurodollar Loan made by it, or change the basis of taxation of payments
to such Lender in respect thereof (except for changes in the rate of tax on the overall
net income of such Lender or its Lending Office imposed by the jurisdiction in which such
Lender’s principal executive office or Lending Office is located); provided that this
Section shall not apply to any Indemnified Taxes or Other Taxes covered by the provisions
of Section 10.01(a);




     (iii) impose on any Lender or the London interbank market any other condition, cost
or expense affecting this Agreement or Eurodollar Loans made by such Lender or
participation therein;


and the result of any of the foregoing shall be to increase the cost to such Lender of making or
maintaining any Eurodollar Loan (or of maintaining its obligation to make any such Loan), or to
reduce the amount of any sum received or receivable by such Lender hereunder (whether of principal,
interest or any other amount), in each case by an amount deemed by such Lender to be material,
then, upon request of such Lender, the Borrower will pay to such Lender such additional amount or
amounts as will compensate such Lender for such additional costs incurred or reduction suffered.




     (b) Capital Requirements. If any Lender determines that any Change in Law affecting such
Lender or any Lending Office of such Lender or such Lender’s holding company, if any, regarding
capital requirements has or would have the effect of reducing the rate of return on such Lender’s
capital or on the capital of such Lender’s holding company, if any, as a consequence of this
Agreement, the Commitments of such Lender or the Loans made by such Lender to a level below that
which such Lender or such Lender’s holding company could have achieved but for such Change in Law
(taking into consideration such Lender’s policies and the policies of such Lender’s holding company
with respect to capital adequacy), then from time to time the Borrower will pay to such Lender such
additional amount or amounts as will compensate such Lender or such Lender’s holding company for
any such reduction suffered.



     (c) Certificates for Reimbursement. A certificate of a Lender setting forth the amount or
amounts necessary to compensate such Lender or its holding company, as the case may be, as
specified in subsection (a) or (b) of this Section and delivered to the Borrower shall be
conclusive absent manifest error. The Borrower shall pay such Lender the amount shown as due on
any such certificate within 15 days after receipt thereof.



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     (d) Delay in Requests. Failure or delay on the part of any Lender to demand compensation
pursuant to the foregoing provisions of this Section shall not constitute a waiver of such Lender’s
right to demand such compensation, provided that the Borrower shall not be required to compensate a
Lender pursuant to the foregoing provisions of this Section for any increased costs incurred or
reductions suffered more than nine months prior to the date that such Lender notifies the Borrower
of the Change in Law giving rise to such increased costs or reductions and of such Lender’s
intention to claim compensation therefor (except that, if the Change in Law giving rise to such
increased costs or reductions is retroactive, then the nine-month period referred to above shall be
extended to include the period of retroactive effect thereof).



     (e) Additional Reserve Requirements. The Borrower shall pay to each Lender, (i) as long as
such Lender shall be required to maintain reserves with respect to liabilities or assets consisting
of or including Eurodollar funds or deposits, additional interest on the unpaid principal amount of
each Eurodollar Loan equal to the actual costs of such reserves allocated to such Loan by such
Lender (as determined by such Lender in good faith, which determination shall be conclusive), and
(ii) as long as such Lender shall be required to comply with any reserve ratio requirement or
analogous requirement of any other central banking or financial regulatory authority imposed in
respect of the maintenance of the Commitments or the funding of the Eurodollar Loans, such
additional costs (expressed as a percentage per annum and rounded upwards, if necessary, to the
nearest five decimal places) equal to the actual costs allocated to such Commitment or Loan by such
Lender (as determined by such Lender in good faith, which determination shall be conclusive), which
in each case shall be due and payable on each date on which interest is payable on such Loan,
provided the Borrower shall have received at least 15 days’ prior notice (with a copy to the
Administrative Agent) of such additional interest or costs from such Lender. If a Lender fails to
give notice 15 days prior to the relevant interest payment date, such additional interest or costs
shall be due and payable 15 days from receipt of such notice.



     Section 8.05. Substitution of Lenders. Upon the receipt by the Borrower of (a) a claim from
any Lender for compensation under Section 8.04 or 10.01 hereof, (b) notice by any Lender to the
Borrower of any illegality pursuant to Section 8.02 hereof or (c) in the event any Lender is a
Defaulting Lender (any such Lender referred to in clause (a), (b) or (c) above being hereinafter
referred to as an “Affected Lender”), the Borrower may, in addition to any other rights the
Borrower may have hereunder or under applicable Law, require, at its expense, any such Affected
Lender to assign, at par plus accrued interest and fees, without recourse, all of its interest,
rights, and obligations hereunder (including all of its Commitments and the Loans and other amounts
at any time owing to it hereunder and the other Loan Documents) to a bank or other institutional
lender specified by the Borrower, provided that (i) such assignment shall not conflict with or
violate any Law, (ii) if the assignment is to a Person other than a Lender, the Borrower shall have
received the written consent of the Administrative Agent, which



63









 




consents shall not be unreasonably withheld or delayed, to such assignment, (iii) the Borrower
shall have paid to the Affected Lender all monies (together with amounts due such Affected Lender
under Section 8.01 hereof as if the Loans owing to it were prepaid rather than assigned) other than
principal owing to it hereunder, and (iv) the assignment is entered into in accordance with the
other requirements of Section 10.10 hereof.




     Section 8.06. Discretion of Lender as to Manner of Funding. Notwithstanding any other
provision of this Agreement, each Lender shall be entitled to fund and maintain its funding of all
or any part of its Loans in any manner it sees fit, it being understood, however, that for the
purposes of this Agreement all determinations hereunder with respect to Eurodollar Loans shall be
made as if each Lender had actually funded and maintained each Eurodollar Loan through the purchase
of deposits in the interbank eurocurrency market having a maturity corresponding to such Loan’s
Interest Period, and bearing an interest rate equal to LIBOR for such Interest Period.



ARTICLE 9

The Administrative Agent




     Section 9.01. Appointment and Authority. Each of the Lenders hereby irrevocably appoints
JPMCB to act on its behalf as the Administrative Agent hereunder and under the other Loan Documents
and authorizes the Administrative Agent to take such actions on its behalf and to exercise such
powers as are delegated to the Administrative Agent by the terms hereof or thereof, together with
such actions and powers as are reasonably incidental thereto. The provisions of this Article are
solely for the benefit of the Administrative Agent and the Lenders and neither the Borrower nor any
Guarantor shall have any rights as a third party beneficiary of any of such provisions.



     Section 9.02. Rights as a Lender. The Person serving as the Administrative Agent hereunder
shall have the same rights and powers in its capacity as a Lender as any other Lender and may
exercise the same as though it were not the Administrative Agent and the term “Lender” or “Lenders”
shall, unless otherwise expressly indicated or unless the context otherwise requires, include the
Person serving as the Administrative Agent hereunder in its individual capacity. Such Person and
its Affiliates may accept deposits from, lend money to, act as the financial advisor or in any
other advisory capacity for and generally engage in any kind of business with the Borrower or any
Restricted Subsidiary or other Affiliate thereof as if such Person were not the Administrative
Agent hereunder and without any duty to account therefor to the Lenders.



     Section 9.03. Exculpatory Provisions. The Administrative Agent shall not have any duties or
obligations except those expressly set forth herein and in the other Loan Documents. Without
limiting the generality of the foregoing, the Administrative Agent:



64









 





     (a) shall not be subject to any fiduciary or other implied duties, regardless of whether a
Default has occurred and is continuing;



     (b) shall not have any duty to take any discretionary action or exercise any discretionary
powers, except discretionary rights and powers expressly contemplated hereby or by the other Loan
Documents that the Administrative Agent is required to exercise as directed in writing by the
Required Lenders (or such other number or percentage of the Lenders as shall be expressly provided
for herein or in the other Loan Documents), provided that the Administrative Agent shall not be
required to take any action that, in its opinion or the opinion of its counsel, may expose the
Administrative Agent to liability or that is contrary to any Loan Document or applicable Law; and



     (c) shall not, except as expressly set forth herein and in the other Loan Documents, have any
duty to disclose, and shall not be liable for the failure to disclose, any information relating to
the Borrower or any of its Affiliates that is communicated to or obtained by the Person serving as
the Administrative Agent or any of its Affiliates in any capacity.



     The Administrative Agent shall not be liable for any action taken or not taken by it (i) with
the consent or at the request of the Required Lenders (or such other number or percentage of the
Lenders as shall be necessary, or as the Administrative Agent shall believe in good faith shall be
necessary, under the circumstances as provided in Sections 10.11 and 7.02) or (ii) in the absence
of its own gross negligence or willful misconduct. The Administrative Agent shall be deemed not to
have knowledge of any Default unless and until notice describing such Default is given to the
Administrative Agent by the Borrower or a Lender.



     The Administrative Agent shall not be responsible for or have any duty to ascertain or inquire
into (1) any statement, warranty or representation made in or in connection with this Agreement or
any other Loan Document, (2) the contents of any certificate, report or other document delivered
hereunder or thereunder or in connection herewith or therewith, (3) the performance or observance
of any of the covenants, agreements or other terms or conditions set forth herein or therein or the
occurrence of any Default, (4) the validity, enforceability, effectiveness or genuineness of this
Agreement, any other Loan Document or any other agreement, instrument or document or (5) the
satisfaction of any condition set forth in Article 3 or elsewhere herein, other than to confirm
receipt of items expressly required to be delivered to the Administrative Agent.



     Section 9.04. Reliance by Administrative Agent. The Administrative Agent shall be entitled
to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate,
consent, statement, instrument, document or other writing (including any electronic message,
Internet or intranet website posting or other distribution) believed by it to be genuine and to
have been signed, sent or otherwise authenticated by the proper Person. The Administrative Agent
also may rely upon any statement made to it orally or by telephone and believed



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by it to have been made by the proper Person, and shall not incur any liability for relying
thereon. In determining compliance with any condition hereunder to the making of a Loan that by
its terms must be fulfilled to the satisfaction of a Lender, the Administrative Agent may presume
that such condition is satisfactory to such Lender unless the Administrative Agent shall have
received notice to the contrary from such Lender prior to the making of such Loan. The
Administrative Agent may consult with legal counsel (who may be counsel for the Borrower),
independent accountants and other experts selected by it, and shall not be liable for any action
taken or not taken by it in accordance with the advice of any such counsel, accountants or experts.




     Section 9.05. Delegation of Duties. The Administrative Agent may perform any and all of its
duties and exercise its rights and powers hereunder or under any other Loan Document by or through
any one or more sub agents appointed by the Administrative Agent. The Administrative Agent and any
such sub agent may perform any and all of its duties and exercise its rights and powers by or
through their respective Related Parties. The exculpatory provisions of this Article shall apply
to any such sub agent and to the Related Parties of the Administrative Agent and any such sub
agent, and shall apply to their respective activities in connection with the syndication of the
credit facilities provided for herein as well as activities as Administrative Agent.



     Section 9.06. Resignation of Administrative Agent. The Administrative Agent may at any time
give notice of its resignation to the Lenders and the Borrower. Upon receipt of any such notice of
resignation, the Required Lenders shall have the right, with the consent of the Borrower (provided
that during the existence of a Default or Event of Default, such consent shall not be required), to
appoint a successor, which shall be a bank with an office in the United States, or an Affiliate of
any such bank with an office in the United States. If no such successor shall have been so
appointed by the Required Lenders and shall have accepted such appointment within 30 days after the
retiring Administrative Agent gives notice of its resignation, then the retiring Administrative
Agent may on behalf of the Lenders, appoint a successor Administrative Agent meeting the
qualifications set forth above; provided that if the Administrative Agent shall notify the Borrower
and the Lenders that no qualifying Person has accepted such appointment, then such resignation
shall nonetheless become effective in accordance with such notice and (1) the retiring
Administrative Agent shall be discharged from its duties and obligations hereunder and under the
other Loan Documents and (2) all payments, communications and determinations provided to be made
by, to or through the Administrative Agent shall instead be made by or to each Lender directly,
until such time as the Required Lenders appoint a successor Administrative Agent as provided for
above in this Section. Upon the acceptance of a successor’s appointment as Administrative Agent
hereunder, such successor shall succeed to and become vested with all of the rights, powers,
privileges and duties of the retiring (or retired) Administrative Agent, and the retiring
Administrative Agent shall be discharged from all of its duties and obligations hereunder or under
the other Loan Documents (if not already discharged



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therefrom as provided above in this Section). The fees payable by the Borrower to a successor
Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed
between the Borrower and such successor. After the retiring Administrative Agent’s resignation
hereunder and under the other Loan Documents, the provisions of this Article 9 and Section 10.13
shall continue in effect for the benefit of such retiring Administrative Agent, its sub agents and
their respective Related Parties in respect of any actions taken or omitted to be taken by any of
them while the retiring Administrative Agent was acting as Administrative Agent.




     Section 9.07. Non-Reliance on Administrative Agent and Other Lenders. Each Lender
acknowledges that it has, independently and without reliance upon the Administrative Agent or any
other Lender or any of their Related Parties and based on such documents and information as it has
deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each
Lender also acknowledges that it will, independently and without reliance upon the Administrative
Agent or any other Lender or any of their Related Parties and based on such documents and
information as it shall from time to time deem appropriate, continue to make its own decisions in
taking or not taking action under or based upon this Agreement, any other Loan Document or any
related agreement or any document furnished hereunder or thereunder.



     Section 9.08. No Other Duties, etc. Anything herein to the contrary notwithstanding, none
of the Lead Arrangers, Syndication Agents or Documentation Agents listed on the cover page hereof
shall have any powers, duties or responsibilities under this Agreement or any of the other Loan
Documents, except in its capacity, as applicable, as the Administrative Agent or a Lender
hereunder.



     Section 9.09. Guaranty Matters. The Lenders irrevocably authorize the Administrative Agent,
at its option and in its discretion, to release any Guarantor from its obligations under the
Guaranty if such Person ceases to be a Material Subsidiary as a result of a transaction permitted
hereunder. Upon request by the Administrative Agent at any time, the Required Lenders will confirm
in writing the Administrative Agent’s authority to release any Guarantor from its obligations under
the Guaranty pursuant to this Section 9.09.



ARTICLE 10

Miscellaneous




     Section 10.01. Taxes. (a) Payments Free of Taxes. Any and all payments by or on account of
any obligation of the Borrower hereunder or under any other Loan Document shall be made free and
clear of and without reduction or withholding for any Indemnified Taxes or Other Taxes; provided
that if the Borrower or the Administrative Agent (the “Withholding Agent”) shall be required by
applicable law to deduct any Indemnified Taxes (including any Other Taxes) from such payments, then
(i) the sum payable by the Borrower shall be



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increased as necessary so that after making all required deductions (including deductions
applicable to additional sums payable under this Section), the Administrative Agent or Lender, as
the case may be, receives an amount equal to the sum it would have received had no such deductions
been made, (ii) such Withholding Agent shall make such deductions and (iii) such Withholding Agent
shall timely pay the full amount deducted to the relevant Governmental Authority in accordance with
applicable Law.




     (b) Payment of Other Taxes by the Borrower. Without limiting the provisions of subsection (a)
above, the Borrower shall timely pay any Other Taxes to the relevant Governmental Authority in
accordance with applicable Law.



     (c) Indemnification by the Borrower. The Borrower shall indemnify the Administrative Agent
and each Lender, within 10 days after demand therefor, for the full amount of any Indemnified Taxes
or Other Taxes (including Indemnified Taxes or Other Taxes imposed or asserted on or attributable
to amounts payable under this Section) paid or payable by the Administrative Agent or such Lender,
as the case may be, and any penalties, interest and reasonable expenses arising therefrom or with
respect thereto, whether or not such Indemnified Taxes or Other Taxes were correctly or legally
imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such
payment or liability delivered to the Borrower by a Lender (with a copy to the Administrative
Agent), or by the Administrative Agent on its own behalf or on behalf of a Lender, shall be
conclusive absent manifest error.



     (d) Indemnification of the Administrative Agent. Each Lender shall indemnify the
Administrative Agent within 10 days after demand therefor, for the full amount of any Excluded
Taxes attributable to such Lender that are payable or paid by the Administrative Agent, and
reasonable expenses arising therefrom or with respect thereto, whether or not such Excluded Taxes
were correctly or legally imposed or asserted by the relevant Governmental Authority. A
certificate as to the amount of such payment or liability delivered to any Lender by the
Administrative Agent shall be conclusive absent manifest error. Each Lender hereby authorizes the
Administrative Agent to set off and apply any and all amounts at any time owing to such Lender
under any Loan Document against any amount due to the Administrative Agent under this paragraph
(d). The agreements in paragraph (d) shall survive the resignation and/or replacement of the
Administrative Agent.



     (e) Evidence of Payments. As soon as practicable after any payment of Indemnified Taxes or
Other Taxes by the Borrower to a Governmental Authority, the Borrower shall deliver to the
Administrative Agent the original or a certified copy of a receipt issued by such Governmental
Authority evidencing such payment, a copy of the return reporting such payment or other evidence of
such payment reasonably satisfactory to the Administrative Agent.




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     (f) Status of Lenders. Any Foreign Lender that is entitled to an exemption from or
reduction of withholding tax under the law of the jurisdiction in which the Borrower is resident
for tax purposes, or any treaty to which such jurisdiction is a party, with respect to payments
hereunder or under any other Loan Document shall deliver to the Borrower (with a copy to the
Administrative Agent), at the time or times prescribed by applicable law or reasonably requested by
the Borrower or the Administrative Agent, such properly completed and executed documentation
prescribed by applicable Law as will permit such payments to be made without withholding or at a
reduced rate of withholding. In addition, any Lender, if requested by the Borrower or the
Administrative Agent, shall deliver such other documentation prescribed by applicable law or
reasonably requested by the Borrower or the Administrative Agent as will enable the Borrower or the
Administrative Agent to determine whether or not such Lender is subject to backup withholding or
information reporting requirements.



     (g) Without limiting the generality of the foregoing, in the event that the Borrower is
resident for tax purposes in the United States:




     (i) any Lender that is a “United States person” within the meaning of Section
7701(a)(30) of the Code shall deliver to the Borrower and the Administrative Agent on or
prior to the date on which such Lender becomes a Lender under this Agreement (and from
time to time thereafter upon the request of the Borrower or the Administrative Agent),
executed originals of Internal Revenue Service form W-9 certifying, to the extent such
Lender is legally entitled to do so, that such Lender is exempt from U.S. Federal backup
withholding tax;




     (ii) any Foreign Lender shall deliver to the Borrower and the Administrative Agent
(in such number of copies as shall be requested by the recipient) on or prior to the date
on which such Foreign Lender becomes a Lender under this Agreement (and from time to time
thereafter upon the request of the Borrower or the Administrative Agent, but only if such
Foreign Lender is legally entitled to do so), whichever of the following is applicable:




     (A) duly completed copies of Internal Revenue Service Form W-8BEN claiming
eligibility for benefits of an income tax treaty to which the United States is a
party;




     (B) duly completed copies of Internal Revenue Service Form W-8ECI;




     (C) in the case of a Foreign Lender claiming the benefits of the exemption
for portfolio interest under section 881(c) of the Code, (x) a certificate to
the effect that such Foreign Lender is not (1) a “bank” within the meaning of
section 881(c)(3)(A) of the Code, (2) a “10 percent shareholder” of the



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Borrower within the meaning of section 881(c)(3)(B) of the Code, or (3) a
“controlled foreign corporation” described in section 881(c)(3)(C) of the Code
and (y) duly completed copies of Internal Revenue Service Form W-8BEN;




     (D) to the extent a Foreign Lender is not the beneficial owner (for
example, where the Foreign Lender is a partnership or participating Lender
granting a typical participation), executed originals of Internal Revenue
Service Form W-8IMY, accompanied by a Form W-8ECI, W-8BEN, U.S. Tax Compliance
Certificate, Form W-9, and/or other certification documents from each beneficial
owner, as applicable; or




     (E) any other form prescribed by applicable law as a basis for claiming
exemption from or a reduction in United States Federal withholding tax duly
completed together with such supplementary documentation as may be prescribed by
applicable law to permit the Borrower to determine the withholding or deduction
required to be made;




     (iii) if a payment made to a Lender under any Loan Document would be subject to U.S.
federal withholding Tax imposed by FATCA if such Lender were to fail to comply with the
applicable reporting requirements of FATCA (including those contained in Section 1471(b)
or 1472(b) of the Code, as applicable), such Lender shall deliver to the Borrower and the
Administrative Agent at the time or times prescribed by law and at such time or times
reasonably requested by the Borrower or the Administrative Agent such documentation
prescribed by applicable law (including as prescribed by Section 1471(b)(3)(C)(i) of the
Code) and such additional documentation reasonably requested by the Borrower or the
Administrative Agent as may be necessary for the Borrower and the Administrative Agent to
comply with their obligations under FATCA and to determine that such Lender has complied
with such Lender’s obligations under FATCA or to determine the amount to deduct and
withhold from such payment. Solely for purposes of this Section 10.01(g)(iii), “FATCA”
shall include any amendments made to FATCA after the date of this Agreement.



     Without limiting the obligations of the Lenders set forth above regarding delivery of certain
forms and documents to establish each Lender’s status for U.S. withholding tax purposes, each
Lender agrees promptly to deliver to the Administrative Agent or the Borrower, as the
Administrative Agent or the Borrower shall reasonably request, on or prior to the Effective Date,
and in a timely fashion thereafter, such other documents and forms required by any relevant taxing
authorities under the Laws of any other jurisdiction, duly executed and completed by such Lender,
as are required under such Laws to confirm such Lender’s entitlement to any available exemption
from, or reduction of, applicable



70









 




withholding taxes in respect of all payments to be made to such Lender outside of the U.S. by
the Borrower pursuant to this Agreement or otherwise to establish such Lender’s status for
withholding tax purposes in such other jurisdiction. Each Lender shall promptly (i) notify the
Administrative Agent of any change in circumstances which would modify or render invalid any such
claimed exemption or reduction, and (ii) take such steps as shall not be materially disadvantageous
to it, in the reasonable judgment of such Lender, and as may be reasonably necessary (including the
re-designation of its Lending Office) to avoid any requirement of applicable Laws of any such
jurisdiction that the Borrower make any deduction or withholding for taxes from amounts payable to
such Lender. Additionally, the Borrower shall promptly deliver to the Administrative Agent or any
Lender, as the Administrative Agent or such Lender shall reasonably request, on or prior to the
Closing Date, and in a timely fashion thereafter, such documents and forms required by any relevant
taxing authorities under the Laws of any jurisdiction, duly executed and completed by the Borrower,
as are required to be furnished by such Lender or the Administrative Agent under such Laws in
connection with any payment by the Administrative Agent or any Lender of Taxes or Other Taxes, or
otherwise in connection with the Loan Documents, with respect to such jurisdiction. Each Lender
agrees that if any form or certification it previously delivered expires or becomes obsolete or
inaccurate in any respect, it shall update such form or certification or promptly notify the
Borrower and the Administrative Agent in writing of its legal inability to do so.




     (h) Survival. Each party’s obligations under this Section 10.01 shall survive any assignment
of rights by, or the replacement of, a Lender, the termination of the Commitments and the
repayment, satisfaction or discharge of all other Obligations.



     Section 10.02. No Waiver, Cumulative Remedies. No delay or failure on the part of the
Administrative Agent or any Lender or on the part of the holder or holders of any of the
Obligations in the exercise of any power or right under any Loan Document shall operate as a waiver
thereof or as an acquiescence in any default, nor shall any single or partial exercise of any power
or right preclude any other or further exercise thereof or the exercise of any other power or
right. The rights and remedies hereunder of the Administrative Agent, the Lenders and of the
holder or holders of any of the Obligations are cumulative to, and not exclusive of, any rights or
remedies which any of them would otherwise have.



     Section 10.03. Non-Business Days. If any payment hereunder becomes due and payable on a day
which is not a Business Day, the due date of such payment shall be extended to the next succeeding
Business Day on which date such payment shall be due and payable. In the case of any payment of
principal falling due on a day which is not a Business Day, interest on such principal amount shall
continue to accrue during such extension at the rate per annum then in effect, which accrued amount
shall be due and payable on the next scheduled date for the payment of interest.



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     Section 10.04. Documentary Taxes. The Borrower agrees to pay on demand any documentary,
stamp or similar taxes and levies that arise from any payment made under or from the execution,
delivery or registration of, performing under or otherwise with respect to this Agreement or any
other Loan Document, including interest and penalties, in the event any such taxes are assessed,
irrespective of when such assessment is made and whether or not any credit is then in use or
available hereunder.



     Section 10.05. Survival of Representations. All representations and warranties made
hereunder and in any other Loan Document or other document delivered pursuant hereto or thereto or
in connection herewith or therewith shall survive the execution and delivery hereof and thereof.
Such representations and warranties have been or will be relied upon by the Administrative Agent
and each Lender, regardless of any investigation made by the Administrative Agent or any Lender or
on their behalf and notwithstanding that the Administrative Agent or any Lender may have had notice
or knowledge of any Default on the Effective Date or the Closing Date, and shall continue in full
force and effect as long as any Loan or any other Obligation hereunder shall remain unpaid or
unsatisfied.



     Section 10.06. Survival of Indemnities. All indemnities and other provisions relative to
reimbursement to the Lenders of amounts sufficient to protect the yield of the Lenders with respect
to the Loans, including, but not limited to, Sections 8.01, 8.04, 10.04 and 10.13 hereof, shall
survive the termination of this Agreement and the other Loan Documents and the payment of the
Obligations.



     Section 10.07. Sharing of Set-Off. Each Lender agrees with each other Lender a party hereto
that if such Lender shall receive and retain any payment, whether by set-off or application of
deposit balances or otherwise, on any of the Loans in excess of its ratable share of payments on
all such Obligations then outstanding to the Lenders, then such Lender shall purchase for cash at
face value, but without recourse, ratably from each of the other Lenders such amount of the Loans
therein, held by each such other Lenders (or interest therein) as shall be necessary to cause such
Lender to share such excess payment ratably with all the other Lenders; provided, however, that if
any such purchase is made by any Lender, and if such excess payment or part thereof is thereafter
recovered from such purchasing Lender, the related purchases from the other Lenders shall be
rescinded ratably and the purchase price restored as to the portion of such excess payment so
recovered, but without interest.



     Section 10.08. Notices; Effectiveness; Electronic Communication. (a) Notices Generally.
Except in the case of notices and other communications expressly permitted to be given by telephone
(and except as provided in subsection (b) below), all notices and other communications provided for
herein shall be in writing and shall be delivered by hand or overnight courier service, mailed by
certified or registered mail or sent by telecopier as follows, and all



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notices and other communications expressly permitted hereunder to be given by telephone shall
be made to the applicable telephone number, as follows:





     (i) if to the Borrower or the Administrative Agent, to the address, telecopier
number, electronic mail address or telephone number specified for such Person on Schedule
10.8; and




     (ii) if to any other Lender, to the address, telecopier number, electronic mail
address or telephone number specified in its Administrative Questionnaire.



     Notices sent by hand or overnight courier service, or mailed by certified or registered mail,
shall be deemed to have been given when received; notices sent by telecopier shall be deemed to
have been given when sent (except that, if not given during normal business hours for the
recipient, shall be deemed to have been given at the opening of business on the next business day
for the recipient). Notices delivered through electronic communications to the extent provided in
subsection (b) below, shall be effective as provided in such subsection (b).



     (b) Electronic Communications. Notices and other communications to the Lenders hereunder may
be delivered or furnished by electronic communication (including e mail and Internet or intranet
websites) pursuant to procedures approved by the Administrative Agent, provided that the foregoing
shall not apply to notices to any Lender pursuant to Article 2 if such Lender, as applicable, has
notified the Administrative Agent that it is incapable of receiving notices under such Section by
electronic communication. The Administrative Agent or the Borrower may, in its discretion, agree
to accept notices and other communications to it hereunder by electronic communications pursuant to
procedures approved by it, provided that approval of such procedures may be limited to particular
notices or communications.



     Unless the Administrative Agent otherwise prescribes, (6) notices and other communications
sent to an e-mail address shall be deemed received upon the sender’s receipt of an acknowledgement
from the intended recipient (such as by the “return receipt requested” function, as available,
return e-mail or other written acknowledgement), provided that if such notice or other
communication is not sent during the normal business hours of the recipient, such notice or
communication shall be deemed to have been sent at the opening of business on the next business day
for the recipient, and (7) notices or communications posted to an Internet or intranet website
shall be deemed received upon the deemed receipt by the intended recipient at its e-mail address as
described in the foregoing clause (i) of notification that such notice or communication is
available and identifying the website address therefor.



     (c) The Platform. THE PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE.” THE AGENT PARTIES (AS
DEFINED BELOW) DO NOT WARRANT THE ACCURACY OR COMPLETENESS OF THE



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BORROWER MATERIALS OR THE ADEQUACY OF THE PLATFORM, AND EXPRESSLY DISCLAIM LIABILITY FOR
ERRORS IN OR OMISSIONS FROM THE BORROWER MATERIALS. NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR
STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE,
NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS, IS MADE BY
ANY AGENT PARTY IN CONNECTION WITH THE BORROWER MATERIALS OR THE PLATFORM. In no event shall the
Administrative Agent or any of its Related Parties (collectively, the “Agent Parties”) have any
liability to the Borrower, any Lender or any other Person for losses, claims, damages, liabilities
or expenses of any kind (whether in tort, contract or otherwise) arising out of the Borrower’s or
the Administrative Agent’s transmission of Borrower Materials through the Internet, except to the
extent that such losses, claims, damages, liabilities or expenses are determined by a court of
competent jurisdiction by a final and nonappealable judgment to have resulted from the gross
negligence or willful misconduct of such Agent Party; provided, however, that in no event shall any
Agent Party have any liability to the Borrower, any Lender or any other Person for indirect,
special, incidental, consequential or punitive damages (as opposed to direct or actual damages).




     (d) Change of Address, Etc. Each of the Borrower and the Administrative Agent may change its
address, telecopier or telephone number for notices and other communications hereunder by notice to
the other parties hereto. Each other Lender may change its address, telecopier or telephone number
for notices and other communications hereunder by notice to the Borrower and the Administrative
Agent. In addition, each Lender agrees to notify the Administrative Agent from time to time to
ensure that the Administrative Agent has on record (i) an effective address, contact name,
telephone number, telecopier number and electronic mail address to which notices and other
communications may be sent and (ii) accurate wire instructions for such Lender. Furthermore, each
Public Lender agrees to cause at least one individual at or on behalf of such Public Lender to at
all times have selected the “Private Side Information” or similar designation on the content
declaration screen of the Platform in order to enable such Public Lender or its delegate, in
accordance with such Public Lender’s compliance procedures and applicable Law, including United
States Federal and state securities Laws, to make reference to Borrower Materials that are not made
available through the “Public Side Information” portion of the Platform and that may contain
material non-public information with respect to the Borrower or its securities for purposes of
United States Federal or state securities Laws.



     (e) Reliance by Administrative Agent and Lenders. The Administrative Agent and the Lenders
shall be entitled to rely and act upon any notices (including telephonic notices) purportedly given
by or on behalf of the Borrower even if (i) such notices were not made in a manner specified
herein, were incomplete or were not preceded or followed by any other form of notice specified
herein, or (ii)



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the terms thereof, as understood by the recipient, varied from any confirmation thereof. The
Borrower shall indemnify the Administrative Agent, each Lender and the Related Parties of each of
them from all losses, costs, expenses and liabilities resulting from the reliance by such Person on
each notice purportedly given by or on behalf of the Borrower. All telephonic notices to and other
telephonic communications with the Administrative Agent may be recorded by the Administrative
Agent, and each of the parties hereto hereby consents to such recording.




     Section 10.09. Counterparts. This Agreement may be executed in any number of counterparts,
and by the different parties hereto on separate counterpart signature pages, and all such
counterparts taken together shall be deemed to constitute one and the same instrument.



     Section 10.10. Successors and Assigns. (a) Successors and Assigns Generally. The provisions
of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns permitted hereby, except that the Borrower may not assign or
otherwise transfer any of its rights or obligations hereunder without the prior written consent of
the Administrative Agent and each Lender and no Lender may assign or otherwise transfer any of its
rights or obligations hereunder except (i) to an assignee in accordance with the provisions of
subsection (b) of this Section, (ii) by way of participation in accordance with the provisions of
subsection (d) of this Section, or (iii) by way of pledge or assignment of a security interest
subject to the restrictions of subsection (f) of this Section (and any other attempted assignment
or transfer by any party hereto shall be null and void). Nothing in this Agreement, expressed or
implied, shall be construed to confer upon any Person (other than the parties hereto, their
respective successors and assigns permitted hereby, Participants to the extent provided in
subsection (d) of this Section and, to the extent expressly contemplated hereby, the Related
Parties of the Administrative Agent and each of the Lenders) any legal or equitable right, remedy
or claim under or by reason of this Agreement.



     (b) Assignments by Lenders. Any Lender may at any time assign to one or more assignees all or
a portion of its rights and obligations under this Agreement (including all or a portion of its
Commitment and the Loans at the time owing to it); provided that any such assignment shall be
subject to the following conditions:




     (i) Minimum Amounts.




     (A) in the case of an assignment (1) of the entire remaining amount of the
assigning Lender’s Commitment and the Loans at the time owing to it or (2) to a
Lender, an Affiliate of a Lender or an Approved Fund, no minimum amount need be
assigned; and



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     (B) in any case not described in subsection (b)(i)(A) of this Section, the
aggregate amount of the Commitment (which for this purpose includes Loans
outstanding thereunder) or, if the Commitment is not then in effect, the
principal outstanding balance of the Loans of the assigning Lender subject to
each such assignment, determined as of the date the Assignment and Assumption
with respect to such assignment is delivered to the Administrative Agent or, if
“Trade Date” is specified in the Assignment and Assumption, as of the Trade
Date, shall not be less than $5,000,000, unless the Administrative Agent
consents (such consent not to be unreasonably withheld or delayed); provided,
however, that concurrent assignments to members of an Assignee Group and
concurrent assignments from members of an Assignee Group to a single Eligible
Assignee (or to an Eligible Assignee and members of its Assignee Group) will be
treated as a single assignment for purposes of determining whether such minimum
amount has been met.




     (ii) Proportionate Amounts. Each partial assignment shall be made as an assignment
of a proportionate part of all the assigning Lender’s rights and obligations under this
Agreement with respect to the Loans or the Commitment assigned;




     (iii) Required Consents. No consent shall be required for any assignment except to
the extent required by subsection (b)(i)(B) of this Section and, in addition:




     (A) the consent of the Borrower (such consent not to be unreasonably
withheld or delayed) shall be required for the assignment of Commitments (prior
to the Closing Date) or Loans (from the Closing Date); provided that (1) if (x)
an Event of Default has occurred and is continuing at the time of such
assignment or (y) such assignment is to a Lender, an Affiliate of a Lender or an
Approved Fund, then no such consent of the Borrower shall be required and (2)
the Borrower shall be deemed to have consented to any such assignment unless it
shall object thereto by written notice to the Administrative Agent within five
(5) Business Days after having received notice thereof; and




     (B) the consent of the Administrative Agent (such consent not to be
unreasonably withheld or delayed) shall be required for assignments in respect
of Loans or Commitments to a Person that is not a Lender, an Affiliate of a
Lender or an Approved Fund.




     (iv) Assignment and Assumption. The parties to each assignment shall execute and
deliver to the Administrative Agent an



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Assignment and Assumption, together with a processing and recordation fee in the
amount of $3,500; provided, however, that the Administrative Agent may, in its sole
discretion, elect to waive such processing and recordation fee in the case of any
assignment. The assignee, if it is not a Lender, shall deliver to the Administrative
Agent an Administrative Questionnaire.




     (v) No Assignment to Borrower. No such assignment shall be made to the Borrower or
any of the Borrower’s Affiliates or Subsidiaries.




     (vi) No Assignment to Natural Persons. No such assignment shall be made to a natural
person.




     (vii) No Assignment to Defaulting Lender. No such assignment shall be made to a
Defaulting Lender.



     Subject to acceptance and recording thereof by the Administrative Agent pursuant to subsection
(c) of this Section, from and after the effective date specified in each Assignment and Assumption,
the assignee thereunder shall be a party to this Agreement and, to the extent of the interest
assigned by such Assignment and Assumption, have the rights and obligations of a Lender under this
Agreement, and the assigning Lender thereunder shall, to the extent of the interest assigned by
such Assignment and Assumption, be released from its obligations under this Agreement (and, in the
case of an Assignment and Assumption covering all of the assigning Lender’s rights and obligations
under this Agreement, such Lender shall cease to be a party hereto) but shall continue to be
entitled to the benefits of Sections 8.04 and 10.13 with respect to facts and circumstances
occurring prior to the effective date of such assignment. Upon request, the Borrower (at its
expense) shall execute and deliver a Note to the assignee Lender. Any assignment or transfer by a
Lender of rights or obligations under this Agreement that does not comply with this subsection
shall be treated for purposes of this Agreement as a sale by such Lender of a participation in such
rights and obligations in accordance with subsection (d) of this Section.



     (c) Register. The Administrative Agent, acting solely for this purpose as an agent of the
Borrower, shall maintain at the Administrative Agent’s Office a copy of each Assignment and
Assumption delivered to it and a register for the recordation of the names and addresses of the
Lenders, and the Commitments of, and principal amounts of the Loans owing to, each Lender pursuant
to the terms hereof from time to time (the “Register”). The entries in the Register shall be
conclusive, and the Borrower, the Administrative Agent and the Lenders may treat each Person whose
name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all
purposes of this Agreement, notwithstanding notice to the contrary. The Register shall be
available for inspection by the Borrower and any Lender, at any reasonable time and from time to
time upon reasonable prior notice.



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     (d) Participations. Any Lender may at any time, without the consent of, or notice to, the
Borrower or the Administrative Agent, sell participations to any Person (other than a natural
person or the Borrower or any of the Borrower’s Affiliates or Subsidiaries ) (each, a
“Participant”) in all or a portion of such Lender’s rights and/or obligations under this Agreement
(including all or a portion of its Commitment and/or the Loans owing to it); provided that (i) such
Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain
solely responsible to the other parties hereto for the performance of such obligations and (iii)
the Borrower, the Administrative Agent and the Lenders shall continue to deal solely and directly
with such Lender in connection with such Lender’s rights and obligations under this Agreement.



     Any agreement or instrument pursuant to which a Lender sells such a participation shall
provide that such Lender shall retain the sole right to enforce this Agreement and to approve any
amendment, modification or waiver of any provision of this Agreement; provided that such agreement
or instrument may provide that such Lender will not, without the consent of the Participant, agree
to any amendment or waiver described in Sections 10.11(i) and (ii) that affects such Participant.
Subject to subsection (e) of this Section, the Borrower agrees that each Participant shall be
entitled to the benefits of Sections 8.01 and 8.04 to the same extent as if it were a Lender and
had acquired its interest by assignment pursuant to subsection (b) of this Section. To the extent
permitted by Law, each Participant also shall be entitled to the benefits of Section 10.14 as
though it were a Lender, provided such Participant agrees to be subject to Section 10.07 as though
it were a Lender.



     Each Lender that sells a participation shall, acting solely for this purpose as an agent of
the Borrower, maintain a register on which it enters the name and address of each Participant and
the principal amounts (and stated interest) of each Participant’s interest in the Loans or other
obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall
have any obligation to disclose all or any portion of the Participant Register to any Person
(including the identity of any Participant or any information relating to a Participant’s interest
in any commitments, loans, letters of credit or its other obligations under any Loan Document)
except to the extent that such disclosure is necessary to establish that such commitment, loan or
other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury
Regulations. The entries in the Participant Register shall be conclusive absent manifest error,
and such Lender shall treat each Person whose name is recorded in the Participant Register as the
owner of such participation for all purposes of this Agreement notwithstanding any notice to the
contrary.



     (e) Limitations upon Participant Rights. A Participant shall not be entitled to receive any
greater payment under Section 8.04 than the applicable Lender would have been entitled to receive
with respect to the participation sold to such Participant, unless the sale of the participation to
such Participant is made with the Borrower’s prior written consent. A Participant that is a
Foreign Lender



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shall not be entitled to the benefits of Section 10.01 unless the Borrower is notified of the
participation sold to such Participant and such Participant agrees, for the benefit of the
Borrower, to comply with Section 10.01(g) as though it were a Lender.




     (f) Certain Pledges. Any Lender may at any time pledge or assign a security interest in all
or any portion of its rights under this Agreement (including under its Note, if any) to secure
obligations of such Lender, including any pledge or assignment to secure obligations to a Federal
Reserve Bank; provided that no such pledge or assignment shall release such Lender from any of its
obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.



     (g) Electronic Execution of Assignments. The words “execution,” “signed,” “signature,” and
words of like import in any Assignment and Assumption shall be deemed to include electronic
signatures or the keeping of records in electronic form, each of which shall be of the same legal
effect, validity or enforceability as a manually executed signature or the use of a paper-based
recordkeeping system, as the case may be, to the extent and as provided for in any applicable Law,
including the Federal Electronic Signatures in Global and National Commerce Act, the New York State
Electronic Signatures and Records Act, or any other similar state Laws based on the Uniform
Electronic Transactions Act.



     Section 10.11. Amendments. Any provision of this Agreement or the other Loan Documents may
be amended or waived if, but only if, such amendment or waiver is in writing and is signed by (a)
the Borrower, (b) the Required Lenders, and (c) if the rights or duties of the Administrative Agent
are affected thereby, the Administrative Agent; provided that:




     (i) no amendment or waiver pursuant to this Section 10.11 shall (A) increase or
extend any Commitment of any Lender without the consent of such Lender, (B) reduce the
amount of, or postpone the date for any scheduled payment of any principal of or interest
on, any Loan or of any fee payable hereunder without the consent of each Lender directly
affected thereby, provided that each of the Fee Letters may be amended, or rights or
privileges thereunder waived, in a writing executed only by the parties thereto or (C)
change the application of payments set forth in Section 2.07 hereof without the consent of
each Lender adversely affected thereby; and




     (ii) no amendment or waiver pursuant to this Section 10.11 shall, unless signed by
each Lender, change the definitions of Maturity Date or Required Lenders, change the
provisions of this Section 10.11, release any Guarantor (except as otherwise provided for
herein or in the other Loan Documents), affect the number of Lenders required to take any
action hereunder or under any other Loan Document, or change or waive



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any provision of any Loan Document that provides for the pro rata nature of
disbursements by or payments to Lenders.



     If any Lender (i) does not consent to a proposed amendment, waiver, consent or release with
respect to any Loan Document that requires the consent of each Lender and that has been approved by
the Required Lenders or (ii) is a Defaulting Lender, the Borrower may replace such non-consenting
Lender or Defaulting Lender in accordance with Section 8.05; provided that, with respect to a
replacement pursuant to clause (i) above, such amendment, waiver, consent or release can be
effected as a result of the assignment contemplated by such Section (together with all other such
assignments required by the Borrower to be made pursuant to this paragraph).



     Section 10.12. Headings. Section headings used in this Agreement are for reference only and
shall not affect the construction of this Agreement.



     Section 10.13. Expenses; Indemnity; Damage Waiver.



     (a) Costs and Expenses. The Borrower shall pay (i) all reasonable out-of-pocket expenses
incurred by the Administrative Agent and its Affiliates (including the reasonable and properly
documented fees, charges and disbursements of counsel for the Administrative Agent), in connection
with the syndication of the credit facilities provided for herein, the preparation, negotiation,
execution, delivery and administration of this Agreement and the other Loan Documents or any
amendments, modifications or waivers of the provisions hereof or thereof (whether or not the
transactions contemplated hereby or thereby shall be consummated) and (ii) all out-of-pocket
expenses incurred by the Administrative Agent or any Lender (other than a Defaulting Lender)
(including the reasonable and properly documented fees, charges and disbursements of any counsel
for the Administrative Agent or any Lender (other than a Defaulting Lender)), and shall pay all
fees and time charges for attorneys who may be employees of the Administrative Agent or any Lender
(other than a Defaulting Lender) in connection with the enforcement or protection of its rights (1)
in connection with this Agreement and the other Loan Documents, including its rights under this
Section, or (2) in connection with the Loans made hereunder, including all such out-of-pocket
expenses incurred during any workout, restructuring or negotiations in respect of such Loans.



     (b) Indemnification by the Borrower. The Borrower shall indemnify the Administrative Agent
(and any sub-agent thereof), each Lender and each Related Party of any of the foregoing Persons
(each such Person being called an “Indemnitee”) against, and hold each Indemnitee harmless from,
any and all losses, claims, damages, liabilities and related expenses (including reasonable and
properly documented fees, charges and disbursements of any counsel for any Indemnitee), and shall
indemnify and hold harmless each Indemnitee from all fees and time charges and disbursements for
attorneys who may be employees of any Indemnitee, incurred by any Indemnitee or asserted against
any Indemnitee by



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any third party or by the Borrower or any Guarantor arising out of, in connection with, or as
a result of (i) the execution or delivery of this Agreement, any other Loan Document or any
agreement or instrument contemplated hereby or thereby, the performance by the parties hereto of
their respective obligations hereunder or thereunder, the consummation of the transactions
contemplated hereby or thereby, or, in the case of the Administrative Agent (and any sub-agent
thereof) and its Related Parties only, the administration of this Agreement and the other Loan
Documents, (ii) any Loan or the use or proposed use of the proceeds therefrom, (iii) any actual or
alleged presence or Release of Hazardous Materials on or from any property, including leaseholds,
owned or operated by the Borrower or any of its Subsidiaries, or any Environmental Claim, or
liability under any Environmental Law, related in any way to the Borrower or any of its
Subsidiaries, or (iv) any actual or prospective claim, litigation, investigation or proceeding
relating to any of the foregoing, whether based on contract, tort or any other theory, whether
brought by a third party or by the Borrower or any of its Affiliates, and regardless of whether any
Indemnitee is a party thereto; provided that such indemnity shall not, as to any Indemnitee, be
available to the extent that such losses, claims, damages, liabilities or related expenses (x) are
determined by a court of competent jurisdiction by final and nonappealable judgment to have
resulted from the bad faith, gross negligence or willful misconduct of such Indemnitee or (y)
result from a claim brought by the Borrower or any of its Affiliates against an Indemnitee for
breach in bad faith of such Indemnitee’s obligations hereunder or under any other Loan Document, if
the Borrower or such Affiliate has obtained a final and nonappealable judgment in its favor on such
claim as determined by a court of competent jurisdiction.




     (c) Reimbursement by Lenders. To the extent that the Borrower for any reason fails to
indefeasibly pay any amount required under subsection (a) or (b) of this Section to be paid by it
to the Administrative Agent (or any sub-agent thereof) or any Related Party of the Administrative
Agent, each Lender severally agrees to pay to the Administrative Agent (or any such sub-agent) or
such Related Party, as the case may be, such Lender’s ratable share (determined as of the time that
the applicable unreimbursed expense or indemnity payment is sought) of such unpaid amount, provided
that the unreimbursed expense or indemnified loss, claim, damage, liability or related expense, as
the case may be, was incurred by or asserted against the Administrative Agent (or any such
sub-agent) in its capacity as such, or against any Related Party of any of the foregoing acting for
the Administrative Agent (or any such sub-agent) in connection with such capacity. The obligations
of the Lenders under this subsection (c) are subject to the provisions of Section 2.03(f).



     (d) Waiver of Consequential Damages, Etc. To the fullest extent permitted by applicable Law,
the Borrower shall not assert, and hereby waives, any claim against any Indemnitee, on any theory
of liability, for special, indirect, consequential or punitive damages (as opposed to direct or
actual damages) arising out of, in connection with, or as a result of, this Agreement, any other
Loan Document or any agreement or instrument contemplated hereby, the



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transactions contemplated hereby or thereby, any Loan or the use of the proceeds thereof. No
Indemnitee referred to in subsection (b) above shall be liable for any damages arising from the use
by unintended recipients of any information or other materials distributed to such unintended
recipients by such Indemnitee through telecommunications, electronic or other information
transmission systems in connection with this Agreement or the other Loan Documents or the
transactions contemplated hereby or thereby other than for direct or actual damages resulting from
the bad faith, gross negligence or willful misconduct of such Indemnitee as determined by a final
and nonappealable judgment of a court of competent jurisdiction.




     (e) Payments. All amounts due under this Section shall be payable not later than ten Business
Days after demand therefor.



     (f) Survival. The agreements in this Section shall survive the resignation of the
Administrative Agent, the replacement of any Lender, the termination of the Commitments and the
repayment, satisfaction or discharge of all the other Obligations.



     Section 10.14. Set-off. In addition to any rights now or hereafter granted under applicable
Law and not by way of limitation of any such rights, upon the occurrence of any Event of Default,
each Lender and each subsequent holder of any Obligation is hereby authorized by the Borrower at
any time or from time to time, without notice to the Borrower or to any other Person, any such
notice being hereby expressly waived, to set-off and to appropriate and to apply any and all
deposits (general or special, including, but not limited to, indebtedness evidenced by certificates
of deposit, whether matured or unmatured, but not including trust accounts, and in whatever
currency denominated) and any other indebtedness at any time held or owing by that Lender or that
subsequent holder to or for the credit or the account of the Borrower, whether or not matured,
against and on account of the Obligations of the Borrower to that Lender or that subsequent holder
under the Loan Documents, including, but not limited to, all claims of any nature or description
arising out of or connected with the Loan Documents, irrespective of whether or not (a) that Lender
or that subsequent holder shall have made any demand hereunder or (b) the principal of or the
interest on the Loans and other amounts due hereunder shall have become due and payable pursuant to
Article 7 and although said obligations and liabilities, or any of them, may be contingent or
unmatured.



     Section 10.15. Payments Set Aside. To the extent that any payment by or on behalf of the
Borrower is made to the Administrative Agent or any Lender, or the Administrative Agent or any
Lender exercises its right of setoff, and such payment or the proceeds of such setoff or any part
thereof is subsequently invalidated, declared to be fraudulent or preferential, set aside or
required (including pursuant to any settlement entered into by the Administrative Agent or such
Lender in its discretion) to be repaid to a trustee, receiver or any other party, in connection
with any proceeding under any Debtor Relief Law or otherwise,



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then (a) to the extent of such recovery, the obligation or part thereof originally intended to
be satisfied shall be revived and continued in full force and effect as if such payment had not
been made or such setoff had not occurred, and (b) each Lender severally agrees to pay to the
Administrative Agent upon demand its applicable share (without duplication) of any amount so
recovered from or repaid by the Administrative Agent, plus interest thereon from the date of such
demand to the date such payment is made at a rate per annum equal to the applicable Overnight Rate
from time to time in effect. The obligations of the Lenders under clause (b) of the preceding
sentence shall survive the payment in full of the Obligations and the termination of this
Agreement.




     Section 10.16. Treatment of Certain Information; Confidentiality. The Administrative Agent
and each Lender agrees to maintain the confidentiality of the Information (as defined below),
except that Information may be disclosed (a) to its Affiliates and to its and its Affiliates’
respective partners, directors, officers, employees, agents, advisors and representatives (it being
understood that the Persons to whom such disclosure is made will be informed of the confidential
nature of such Information and instructed to keep such Information confidential) in connection with
this Agreement, (b) to the extent requested by any regulatory authority purporting to have
jurisdiction over it (including any self-regulatory authority, such as the National Association of
Insurance Commissioners), (c) to the extent required by applicable Laws or regulations or by any
subpoena or similar legal process, provided that the Borrower is given written notice prior to any
such disclosure to the extent not legally prohibited so that the Borrower may seek a protective
order or other appropriate remedy, (d) to any other party hereto, (e) in connection with the
exercise of any remedies hereunder or under any other Loan Document or any action or proceeding
relating to this Agreement or any other Loan Document or the enforcement of rights hereunder or
thereunder, (f) subject to an agreement containing provisions substantially the same as those of
this Section, to (i) any assignee of or Participant in, or any prospective assignee of or
Participant in, any of its rights or obligations under this Agreement or (ii) any actual or
prospective counterparty (or its advisors) to any swap or derivative transaction relating to the
Borrower and its obligations, (g) with the consent of the Borrower or (h) to the extent such
Information (x) becomes publicly available other than as a result of a breach of this Section or
(y) becomes available to the Administrative Agent, any Lender or any of their respective Affiliates
on a nonconfidential basis from a source other than the Borrower.



     For purposes of this Section, “Information” means all information received from the Borrower
or any Restricted Subsidiary relating to the Borrower or any Restricted Subsidiary or any of their
respective businesses, other than any such information that is available to the Administrative
Agent or any Lender on a nonconfidential basis prior to disclosure by the Borrower or any
Restricted Subsidiary, provided that, in the case of information received from the Borrower or any
Restricted Subsidiary after the date hereof, such information is clearly identified at the time of
delivery as confidential. Any Person required to maintain the confidentiality of Information as
provided in this Section shall be considered



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to have complied with its obligation to do so if such Person has exercised the same degree of
care to maintain the confidentiality of such Information as such Person would accord to its own
confidential information.




     The Administrative Agent and each Lender acknowledges that (a) the Information may include
material non-public information concerning the Borrower or a Restricted Subsidiary, as the case may
be, (b) it has developed compliance procedures regarding the use of material non-public information
and (c) it will handle such material non-public information in accordance with applicable Law,
including United States Federal and state securities Laws.



     Section 10.17. Entire Agreement. The Loan Documents constitute the entire understanding of
the parties thereto with respect to the subject matter thereof and any prior agreements, whether
written or oral, with respect thereto are superseded hereby.



     Section 10.18. Severability of Provisions. Any provision of any Loan Document which is
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such unenforceability without invalidating the remaining provisions hereof or affecting the
validity or enforceability of such provision in any other jurisdiction. All rights, remedies and
powers provided in this Agreement and the other Loan Documents may be exercised only to the extent
that the exercise thereof does not violate any applicable mandatory provisions of Law, and all the
provisions of this Agreement and other Loan Documents are intended to be subject to all applicable
mandatory provisions of Law which may be controlling and to be limited to the extent necessary so
that they will not render this Agreement or the other Loan Documents invalid or unenforceable.



     Section 10.19. Excess Interest. Notwithstanding any provision to the contrary contained
herein or in any other Loan Document, no such provision shall require the payment or permit the
collection of any amount of interest in excess of the maximum amount of interest permitted by
applicable Law to be charged for the use or detention, or the forbearance in the collection, of all
or any portion of the Loans or other obligations outstanding under this Agreement or any other Loan
Document (“Excess Interest”). If any Excess Interest is provided for, or is adjudicated to be
provided for, herein or in any other Loan Document, then in such event (a) the provisions of this
Section shall govern and control, (b) neither the Borrower nor any guarantor or endorser shall be
obligated to pay any Excess Interest, (c) any Excess Interest that the Administrative Agent or any
Lender may have received hereunder shall, at the option of the Administrative Agent, be (i) applied
as a credit against the then outstanding principal amount of Obligations hereunder and accrued and
unpaid interest thereon (not to exceed the maximum amount permitted by applicable Law), (ii)
refunded to the Borrower, or (iii) any combination of the foregoing, (d) the interest rate payable
hereunder or under any other Loan Document shall be automatically subject to reduction to the
maximum lawful contract rate allowed under applicable usury Laws (the “Maximum



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Rate”), and this Agreement and the other Loan Documents shall be deemed to have been, and
shall be, reformed and modified to reflect such reduction in the relevant interest rate, and (e)
neither the Borrower nor any guarantor or endorser shall have any action against the Administrative
Agent or any Lender for any Damages whatsoever arising out of the payment or collection of any
Excess Interest. Notwithstanding the foregoing, if for any period of time interest on any of the
Borrower’s Obligations is calculated at the Maximum Rate rather than the applicable rate under this
Agreement, and thereafter such applicable rate becomes less than the Maximum Rate, the rate of
interest payable on the Borrower’s Obligations shall remain at the Maximum Rate until the Lenders
have received the amount of interest which such Lenders would have received during such period on
the Borrower’s Obligations had the rate of interest not been limited to the Maximum Rate during
such period.




     Section 10.20. Construction. The parties acknowledge and agree that the Loan Documents shall
not be construed more favorably in favor of any party hereto based upon which party drafted the
same, it being acknowledged that all parties hereto contributed substantially to the negotiation of
the Loan Documents.



     Section 10.21. USA Patriot Act. Each Lender that is subject to the Patriot Act and the
Administrative Agent (for itself and not on behalf of any Lender) hereby notifies the Borrower that
pursuant to the requirements of the Patriot Act it is required to obtain, verify and record
information that identifies the Borrower, which information includes the name and address of the
Borrower and other information that will allow such Lender or the Administrative Agent, as
applicable, to identify the Borrower in accordance with the Patriot Act.



     Section 10.22. Governing Law; Jurisdiction; etc.



     (a) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
LAW OF THE STATE OF NEW YORK.



     (b) SUBMISSION TO JURISDICTION. THE BORROWER IRREVOCABLY AND UNCONDITIONALLY SUBMITS, FOR
ITSELF AND ITS PROPERTY, TO THE EXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF STATE OF NEW
YORK SITTING IN NEW YORK COUNTY AND OF THE UNITED STATES DISTRICT COURT OF THE SOUTHERN DISTRICT OF
NEW YORK, AND ANY APPELLATE COURT FROM ANY THEREOF, IN ANY ACTION OR PROCEEDING ARISING OUT OF OR
RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR FOR RECOGNITION OR ENFORCEMENT OF ANY
JUDGMENT, AND EACH OF THE PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY AGREES THAT ALL CLAIMS IN
RESPECT OF ANY SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH NEW YORK STATE COURT
OR, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN SUCH



85









 




FEDERAL COURT. EACH OF THE PARTIES HERETO 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. NOTHING IN THIS AGREEMENT OR IN ANY OTHER LOAN DOCUMENT
SHALL AFFECT ANY RIGHT THAT THE ADMINISTRATIVE AGENT OR ANY LENDER MAY OTHERWISE HAVE TO BRING ANY
ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT AGAINST THE BORROWER OR
ITS PROPERTIES IN THE COURTS OF ANY JURISDICTION.




     (c) WAIVER OF VENUE. THE BORROWER IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST
EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE LAYING
OF VENUE OF ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN
DOCUMENT IN ANY COURT REFERRED TO IN PARAGRAPH (B) OF THIS SECTION. EACH OF THE PARTIES HERETO
HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE DEFENSE OF AN
INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION OR PROCEEDING IN ANY SUCH COURT.



     (d) SERVICE OF PROCESS. EACH PARTY HERETO IRREVOCABLY CONSENTS TO SERVICE OF PROCESS IN THE
MANNER PROVIDED FOR NOTICES IN SECTION 10.08(A). NOTHING IN THIS AGREEMENT WILL AFFECT THE RIGHT
OF ANY PARTY HERETO TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY APPLICABLE LAW.



     Section 10.23. Waiver of Jury Trial. EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL
PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN
DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY
OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY
OTHER PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON WOULD NOT, IN THE
EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE
OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS
BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.



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     Section 10.24. No Advisory or Fiduciary Responsibility. In connection with all aspects of
each transaction contemplated hereby (including in connection with any amendment, waiver or other
modification hereof or of any other Loan Document), the Borrower acknowledges and agrees that: (a)
(i) the arranging and other services regarding this Agreement provided by the Administrative Agent
and, the Lead Arrangers are arm’s-length commercial transactions between the Borrower and its
Subsidiaries, on the one hand, and the Administrative Agent and the Lead Arrangers on the other
hand, (ii) the Borrower has consulted its own legal, accounting, regulatory and tax advisors to the
extent it has deemed appropriate, and (iii) the Borrower is capable of evaluating, and understands
and accepts, the terms, risks and conditions of the transactions contemplated hereby and by the
other Loan Documents; (b) (i) each of the Administrative Agent and the Lead Arrangers has been
acting solely as a principal and, except as expressly agreed in writing by the relevant parties,
has not been, is not, and will not be acting as an advisor, agent or fiduciary for the Borrower or
any of its Subsidiaries, or any other Person and (ii) neither the Administrative Agent nor any of
the Lead Arrangers has any obligation to the Borrower or any of its Subsidiaries with respect to
the transactions contemplated hereby except those obligations expressly set forth herein and in the
other Loan Documents; and (c) the Administrative Agent and the Lead Arrangers and their respective
Affiliates may be engaged in a broad range of transactions that involve interests that differ from
those of the Borrower and its Subsidiaries, and neither the Administrative Agent nor the Lead
Arrangers has any obligation to disclose any of such interests to the Borrower or its Subsidiaries.
To the fullest extent permitted by Law, the Borrower hereby waives and releases any claims that it
may have against the Administrative Agent and the Lead Arrangers with respect to any breach or
alleged breach of agency or fiduciary duty in connection with any aspect of any transaction
contemplated hereby.



     Section 10.25. Binding Effect. This Agreement shall be deemed to have become effective when
(i) it shall have been executed by the Borrower and the Administrative Agent, (ii) the
Administrative Agent shall have been notified by each Lender that such Lender has executed it and
(iii) the conditions precedent to the Effective Date described in Section 3.01 shall have been
satisfied. Thereafter this Agreement shall be binding upon and inure to the benefit of the
Borrower, the Administrative Agent and each Lender and their respective successors and assigns,
except that the Borrower shall not have the right to assign its rights hereunder or any interest
herein without the prior written consent of each Lender.



[Signature Pages To Follow]




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     This Agreement is entered into among us for the uses and purposes hereinabove set forth as of
the date first above written.



	 	 	 	 	 
	 	CLIFFS NATURAL RESOURCES INC.,

as Borrower

 	 
	 	By:  	/s/ Laurie Brlas	 
	 	 	Name:  	Laurie Brlas 	 
	 	 	Title:  	Executive Vice President,

Finance and Administration 

and Chief Financial Officer 	 



 









 







	 	 	 	 	 
	 	JPMORGAN CHASE BANK, N.A.,

     as a Lender and as Administrative 

     Agent

 	 
	 	By:  	/s/ Peter Predun	 
	 	 	Name:  	Peter Predun	 
	 	 	Title:  	Executive Director	 



 









 







	 	 	 	 	 
	 	Bank of America, N.A.

 	 
	 	By:  	/s/ Andrew Richards	 
	 	 	Name:  	Andrew Richards	 
	 	 	Title:  	SVP	 



 









 







	 	 	 	 	 
	 	CITIBANK, N.A.

 	 
	 	By:  	/s/ Susan M. Olsen	 
	 	 	Name:  	Susan M. Olsen	 
	 	 	Title:  	Vice President	 



 









 







	 	 	 	 	 
	 	Fifth Third Bank

 	 
	 	By:  	/s/ Roy C. Lanctot	 
	 	 	Name:  	Roy C. Lanctot	 
	 	 	Title:  	Vice President	 



 









 







	 	 	 	 	 
	 	PNC Bank, National Association

 	 
	 	By:  	/s/ Joseph G. Moran	 
	 	 	Name:  	Joseph G. Moran	 
	 	 	Title:  	Senior Vice President	 



 









 







	 	 	 	 	 
	 	Bank of Montreal, Chicago Branch

 	 
	 	By:  	/s/ Joseph W. Linder	 
	 	 	Name:  	Joseph W. Linder	 
	 	 	Title:  	Vice President	 



 









 







	 	 	 	 	 
	 	The Bank of Nova Scotia

 	 
	 	By:  	/s/ Paul Czach	 
	 	 	Name:  	Paul Czach	 
	 	 	Title:  	Managing Director	 



 









 







	 	 	 	 	 
	 	COMMONWEALTH BANK OF AUSTRALIA
as Document Agent and Lender

 	 
	 	By:  	/s/ Nicholas Peter Rees	 
	 	 	Name:  	Nicholas Peter Rees	 
	 	 	Title:  	Vice President	 



 














 







	 	 	 	 	 
	 	KEYBANK NATIONAL ASSOCIATION

 	 
	 	By:  	/s/ Suzannah Harris	 
	 	 	Name:  	Suzannah Harris	 
	 	 	Title:  	Vice President	 



 















 







	 	 	 	 	 
	 	RBS Citizens Bank, N.A.

as Document Agent and Lender

 	 
	 	By:  	/s/ Curtis C. Hunter III	 
	 	 	Name:  	Curtis C. Hunter III	 
	 	 	Title:  	Senior Vice President	 



 














 







	 	 	 	 	 
	 	U.S. BANK NATIONAL ASSOCIATION

 	 
	 	By:  	/s/ John Eyerman	 
	 	 	Name:  	John Eyerman	 
	 	 	Title:  	Assistant Vice President	 



 














 







	 	 	 	 	 
	 	CIBC INC.

 	 
	 	By:  	/s/
Eoin Roche	 
	 	 	Name:  	Eoin Roche	 
	 	 	Title:  	Executive Director 	 







	 	 	 	 	 
	 	By:  	/s/
Dominic J. Sorresso	 
	 	 	Name:  	Dominic J. Sorresso	 
	 	 	Title:  	Executive Director 	 












	 	 	 	 	 
	 	CIBC World Markets Corp.

Authorized Signatory










 









 







	 	 	 	 	 
	 	Mizuho Corporate Bank (USA)

 	 
	 	By:  	/s/
Leon Mo	 
	 	 	Name:  	Leon Mo	 
	 	 	Title:  	Senior Vice President 	 



 









 







	 	 	 	 	 
	 	Toronto Dominion (New York) LLC

 	 
	 	By:  	/s/
Jackie Barrett	 
	 	 	Name:  	Jackie Barrett	 
	 	 	Title:  	Authorized Signatory	 



 









 







	 	 	 	 	 
	 	The Bank of Tokyo-Mitsubishi
UFJ, LTD.

 	 
	 	By:  	/s/
Christine Howatt	 
	 	 	Name:  	Christine Howatt	 
	 	 	Title:  	Authorized Signatory	 



 









 







	 	 	 	 	 
	 	Sumitomo Mitsui Banking Corp.

 	 
	 	By:  	/s/
Masakazu Hasegawa	 
	 	 	Name:  	Masakazu Hasegawa	 
	 	 	Title:  	General Manager	 



 









 







	 	 	 	 	 
	 	UNION BANK, N.A. 

 	 
	 	By:  	/s/ Richard G. Reeves	 
	 	 	Name:  	Richard G. Reeves	 
	 	 	Title:  	Vice President — Mining	 



 









 







	 	 	 	 	 
	 	Credit Agricole Corporate and Investment Bank

 	 
	 	By:  	/s/ Joseph Philbin	 
	 	 	Name:  	Joseph Philbin	 
	 	 	Title:  	Director	 
	 
	 	By:  	/s/ Matthias Guillet	 
	 	 	Name:  	Matthias Guillet	 
	 	 	Title:  	Director	 



 









 







	 	 	 	 	 
	 	Deutsche Bank AG New York Branch

 	 
	 	By:  	/s/ Philippe Sandmeier	 
	 	 	Name:  	Philippe Sandmeier	 
	 	 	Title:  	Managing Director	 
	 
	 	By:  	/s/ Oliver Schwarz	 
	 	 	Name:  	Oliver Schwarz	 
	 	 	Title:  	Director	 



 









 







	 	 	 	 	 
	 	National Australia Bank Limited
ABN 12 004 044 934

 	 
	 	By:  	/s/ Paul A. Scott	 
	 	 	Name:  	Paul A. Scott	 
	 	 	Title:  	Associate Director	 



 









 







	 	 	 	 	 
	 	WESTPAC BANKING CORPORATION

 	 
	 	By:  	/s/ Henrik Jensen	 
	 	 	Name:  	Henrik Jensen	 
	 	 	Title:  	Director 	 



 









 



	 	 	 	 	 
	 	Wells Fargo Bank, N.A.


 	 
	 	By:  	/s/
Tim Green	 
	 	 	Name:  	Tim Green 	 
	 	 	Title:  	Director	 



 









 



	 	 	 	 	 
	 	Australia and New Zealand Banking


Group Limited


 	 
	 	By:  	/s/
John W. Wade	 
	 	 	Name:  	John W. Wade 	 
	 	 	Title:  	Head of Operations and 

Infrastructure	 



 









 



	 	 	 	 	 
	 	Comerica Bank


 	 
	 	By:  	/s/
Mark J. Leveille	 
	 	 	Name:  	Mark J. Leveille 	 
	 	 	Title:  	Vice President	 



 









 



	 	 	 	 	 
	 	FIRST MERIT BANK, N.A.,
as a lender




 	 
	 	By:  	/s/
Robert G. Morlan	 
	 	 	Name:  	Robert G. Morlan 	 
	 	 	Title:  	Senior Vice President	 



 









 






	 	 	 	 	 



Exhibit A




NOTICE OF BORROWING




Date: __________, ____





     To: JPMorgan Chase Bank, N.A., as Administrative Agent for the Lenders parties to the Term
Loan Agreement, dated as of [ ], 2011 (as amended, restated, supplemented or otherwise modified
from time to time, the “Term Loan Agreement”), among Cliffs Natural Resources Inc., certain Lenders
that are signatories thereto and JPMorgan Chase Bank, N.A., as Administrative Agent.



     Ladies and Gentlemen:



     The undersigned, Cliffs Natural Resources Inc. (the “Borrower”), refers to the Term Loan
Agreement, the terms defined therein being used herein as therein defined, and hereby gives you
irrevocable notice, pursuant to Section 2.03 of the Term Loan Agreement, of the Borrowing specified
below:



     1. The Business Day of the proposed Borrowing is ________________, _____________.



     2. The aggregate amount of the proposed Borrowing is _________________________.



     3. The Borrowing is to be comprised of [Base Rate] [Eurodollar] Loans.



     4. If applicable: The duration of the Interest Period for the Eurodollar Loans included in the
Borrowing shall be ________ [month(s)][days].



     The undersigned hereby certifies that the Effective Date has occurred and that the conditions
precedent to the Closing Date set forth in Section 3.02 of the Term Loan Agreement have been
satisfied or waived as of the date of the proposed Borrowing.



A-1









 





	 	 	 	 	 
	 	CLIFFS NATURAL RESOURCES INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 




A-2









 





Exhibit B




NOTICE OF CONTINUATION/CONVERSION




Date: ____________, ____




     To: JPMorgan Chase Bank, N.A., as Administrative Agent for the Lenders parties to the Term
Loan Agreement, dated as of [ ], 2011 (as amended, restated, supplemented or otherwise modified
from time to time, the “Term Loan Agreement”), among Cliffs Natural Resources Inc., certain Lenders
that are signatories thereto and JPMorgan Chase Bank, N.A., as Administrative Agent.



     Ladies and Gentlemen:



     The undersigned, Cliffs Natural Resources Inc. (the “Borrower”), refers to the Term Loan
Agreement, the terms defined therein being used herein as therein defined, and hereby gives you
irrevocable notice, pursuant to Section 2.03 of the Term Loan Agreement, of the
conversion/continuation of the Loans specified herein, that:



     1. The Business Day of the proposed [conversion] [continuation] is _________________,
__________.



     2. The aggregate amount of the Loans to be converted/continued is _________________________.



     3. The Loans are to be converted into/continued as [Eurodollar] [Base Rate] Loans.



     4. If applicable: The duration of the Interest Period for the Eurodollar Loans included in
the Borrowing shall be __________ [month(s)][days].



     [The undersigned hereby certifies that on the date hereof, and on the date of the proposed
conversion into a Eurodollar Loan or continuation of a Eurodollar Loan, before and after giving
effect thereto and to the application of the proceeds therefrom, no Event of Default has occurred
and is continuing or would result from such proposed conversion/continuation.]1





 




			
	1	 	To be included in the case of a continuation
of, or a conversion into, a Eurodollar Loan.




B- 1









 










	 	 	 	 	 
	 	CLIFFS NATURAL RESOURCES INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 




B-2









 





Exhibit C




NOTE




Date:_________, ____




     For Value Received, the undersigned, Cliffs Natural Resources Inc., an Ohio corporation (the
“Borrower”), hereby promises to pay to the order of ____________________________ (the “Lender”) on
the Maturity Date of the hereinafter defined Term Loan Agreement, at the Administrative Agent’s
Office in U.S. Dollars in immediately available funds in accordance with Section 2.07 of the Term
Loan Agreement, the aggregate principal amount of the Loan made by the Lender to the Borrower
pursuant to the Term Loan Agreement, together with unpaid interest on the principal amount of the
Loan outstanding hereunder at the rates, and payable in the manner and on the dates, specified in
the Term Loan Agreement, the provisions of which are incorporated by reference in this Note.



     This Note is one of the Notes referred to in the Term Loan Agreement, dated as of [ ], 2011,
among Cliffs Natural Resources Inc., the Lenders party thereto and JPMorgan Chase Bank, N.A., as
Administrative Agent (as amended, modified, supplemented or restated from time to time, the “Term
Loan Agreement”), and this Note and the holder hereof are entitled to all the benefits referred to
therein, to which Term Loan Agreement reference is hereby made for a statement thereof. All
defined terms used in this Note, except terms otherwise defined herein, shall have the same meaning
as in the Term Loan Agreement. This Note shall be governed by and construed in accordance with the
internal laws of the State of New York.



     Voluntary prepayments may be made hereon, certain prepayments are required to be made hereon,
and this Note may be declared due prior to the expressed maturity hereof, all in the events, on the
terms and in the manner as provided for in the Term Loan Agreement.



C- 1









 





     The Borrower hereby waives demand, presentment, protest or notice of any kind hereunder.



	 	 	 	 	 
	 	CLIFFS NATURAL RESOURCES INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 




C-2











 





Exhibit D




Cliffs Natural Resources Inc.


Compliance Certificate





	 	 	To: JPMorgan Chase Bank, N.A., as Administrative Agent under, and the Lenders party to, the Term
Loan Agreement described below





     This Compliance Certificate is furnished to the Administrative Agent and the Lenders pursuant
to that certain Term Loan Agreement, dated as of [    ], 2011 (as extended, renewed, amended or
restated from time to time, the “Term Loan Agreement”), among Cliffs Natural Resources Inc. (the
“Borrower”), certain Lenders that are signatories thereto and JPMorgan Chase Bank, N.A., as
Administrative Agent. Unless otherwise defined herein, the terms used in this Compliance
Certificate have the meanings ascribed thereto in the Term Loan Agreement.



     The Undersigned hereby certifies that:



     1. I am the duly elected ___of Cliffs Natural Resources Inc.;



     2. I have reviewed the terms of the Term Loan Agreement and I have made, or have caused to be
made under my supervision, a detailed review of the transactions and conditions of the Borrower and
its Subsidiaries during the accounting period covered by the attached financial statements;



     3. The examinations described in paragraph 2 did not disclose, and I have no knowledge of, the
existence of any condition or the occurrence of any event which constitutes a Default or Event of
Default during or at the end of the accounting period covered by the attached financial statements,
except as set forth below;



     4. The financial statements required by Section 6.01 of the Term Loan Agreement and being
furnished to you concurrently with this Compliance Certificate have been prepared in accordance
with GAAP and fairly present in all material respects in accordance with GAAP the consolidated
financial condition of the Borrower and its Restricted Subsidiaries as of the dates indicated and
the results of their operations and changes in their cash flows for the periods indicated, subject
to normal year-end audit adjustments and the absence of footnotes;



     5. The representations and warranties of the Borrower contained in Article 5 of the Term Loan
Agreement are true and correct in all material respects as though made on and as of the date hereof
(except to the extent such representations and warranties relate to an earlier date, in which case
they were true and correct in all material respects as of such date);



D-1









 





     6. The Schedule I hereto sets forth financial data and computations evidencing the Borrower’s
compliance with the covenants set forth in Section 6.18 of the Term Loan Agreement, all of which
data and computations are, to the best of my knowledge, true, complete and correct and have been
made in accordance with the relevant Sections of the Term Loan Agreement; and



     7. Schedule II hereto sets forth a reconciliation of the financial statements delivered
pursuant to Section 6.01 of the Term Loan Agreement with the calculation of financial covenants set
forth in Schedule I.



     Described below are the exceptions, if any, to paragraph 3 by listing, in detail, the nature
of the condition or event, the period during which it has existed and the action which the Borrower
has taken, is taking, or proposes to take with respect to each such condition or event:



     The foregoing certifications, together with the computations set forth in Schedule I hereto
and the financial statements delivered with this Certificate in support hereof, are made and
delivered this _____ day of _______ 201.



	 	 	 	 	 
	 	Cliffs Natural Resources Inc. 

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



D-2









 





Exhibit E




ASSIGNMENT AND ASSUMPTION




     This Assignment and Assumption (this “Assignment and Assumption”) is dated as of the Effective
Date set forth below and is entered into by and between [the][each]3 Assignor
identified in item 1 below ([the][each, an] “Assignor”) and [the][each]4
Assignee identified in item 2 below ([the][each, an] “Assignee”). [It is understood and agreed
that the rights and obligations of [the Assignors][the Assignees]5 hereunder
are several and not joint.]6 Capitalized terms used but not defined herein
shall have the meanings given to them in the Term Loan Agreement identified below (the “Term Loan
Agreement”), receipt of a copy of which is hereby acknowledged by the Assignee. The Standard Terms
and Conditions set forth in Annex 1 attached hereto are hereby agreed to and incorporated herein by
reference and made a part of this Assignment and Assumption as if set forth herein in full.



     For an agreed consideration, [the][each] Assignor hereby irrevocably sells and assigns to [the
Assignee][the respective Assignees], and [the][each] Assignee hereby irrevocably purchases and
assumes from [the Assignor][the respective Assignors], subject to and in accordance with the
Standard Terms and Conditions and the Term Loan Agreement, as of the Effective Date inserted by the
Administrative Agent as contemplated below (i) all of [the Assignor’s][the respective Assignors’]
rights and obligations in [its capacity as a Lender][their respective capacities as Lenders] under
the Term Loan Agreement and any other documents or instruments delivered pursuant thereto to the
extent related to the amount and percentage interest identified below of all of such outstanding
rights and obligations of [the Assignor][the respective Assignors] under the respective facilities
identified below and (ii) to the extent permitted to be assigned under applicable law, all claims,
suits, causes of action and any other right of [the Assignor (in its capacity as a Lender)][the
respective Assignors (in their respective capacities as Lenders)] against any Person, whether known
or unknown, arising under or in connection with the Term Loan Agreement, any





 




			
	3	 	For bracketed language here and
elsewhere in this form relating to the Assignor(s), if the assignment is from a
single Assignor, choose the first bracketed language. If the assignment is
from multiple Assignors, choose the second bracketed language.
	 
	4	 	For bracketed language here and
elsewhere in this form relating to the Assignee(s), if the assignment is to a
single Assignee, choose the first bracketed language. If the assignment is to
multiple Assignees, choose the second bracketed language.
	 
	5	 	Select as appropriate.
	 
	6	 	Include bracketed language if there are
either multiple Assignors or multiple Assignees.




E-1









 









other documents or
instruments delivered pursuant thereto or the loan transactions governed thereby or in any way
based on or related to any of the foregoing, including, but not limited to, contract claims, tort claims, malpractice claims, statutory
claims and all other claims at law or in equity related to the rights and obligations sold and
assigned pursuant to clause (i) above (the rights and obligations sold and assigned by [the][any]
Assignor to [the][any] Assignee pursuant to clauses (i) and (ii) above being referred to herein
collectively as [the][an] “Assigned Interest”). Each such sale and assignment is without
recourse to [the][any] Assignor and, except as expressly provided in this Assignment and
Assumption, without representation or warranty by [the][any] Assignor.




	 	 	 	 	 

	1.

	 	Assignor[s]:	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	 

	 	 	 	 
	2.

	 	Assignee[s]:	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	 	 	[for each Assignee, indicate [Affiliate][Approved Fund] of [identify
Lender]
	 
	 	 	 	 
	3.	 	Borrower: Cliffs Natural Resources Inc.
	 
	 	 	 	 
	4.	 	Administrative Agent: JPMorgan Chase Bank, N.A., as the administrative
agent under the Term Loan Agreement
	 
	 	 	 	 
	5.	 	Term Loan Agreement: Term Loan Agreement, dated as of [ ], 2011, by
and among Cliffs Natural Resources Inc., the various institutions from
time to time party thereto as Lenders, and JPMorgan Chase Bank, N.A.,
as Administrative Agent (as amended, restated, supplemented or
otherwise modified from time to time)
	 
	 	 	 	 
	6.	 	Assigned Interest:






E-2









 






	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Aggregate	 	 	Amount of	 	 	Percentage	 	 	 	 
	 	 	 	 	 	 	Amount of	 	 	Commitment/	 	 	Assigned of	 	 	 	 
	 	 	 	 	 	 	Commitment/ Loans	 	 	Loans	 	 	Commitment/	 	 	CUSIP	 
	Assignor[s]7	 	Assignee[s]8	 	 	for all Lenders9	 	 	Assigned	 	 	Loans10	 	 	Number	 
	 
	 		 	 	 	$	 	 	 	$	 	 	 	 	%	 	 	 	 	 
	 
	 		 	 	 	$	 	 	 	$	 	 	 	 	%	 	 	 	 	 
	 
	 		 	 	 	$	 	 	 	$	 	 	 	 	%	 	 	 	 	 






     [7.
Trade Date: __________________]11



     Effective Date: __________________, 20__



     The terms set forth in this Assignment and Assumption are hereby agreed to:



	 	 	 	 	 	 	 	 	 

	 	 	ASSIGNOR
	 
	 	 	 	 	 	 	 	 
	 	 	[_____________________]
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Title:	 	 	 	 






	 	 	 	 	 	 	 	 	 

	 	 	ASSIGNEE
	 
	 	 	 	 	 	 	 	 
	 	 	[_____________________]
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Title:	 	 	 	 








 




			
	7	 	List each Assignor, as appropriate.
	 
	8	 	List each Assignee, as appropriate.
	 
	9	 	Amounts in this column and in the
column immediately to the right to be adjusted by the counterparties to take
into account any payments or prepayments made between the Trade Date and the
Effective Date.
	 
	10	 	Set forth, to at least 9 decimals, as a
percentage of the Commitment/Loans of all Lenders thereunder.
	 
	11	 	To be completed if the Assignor and
the Assignee intend that the minimum assignment amount is to be determined as
of the Trade Date.




E-3









 









Consented to and Accepted:




	 	 	 	 	 

	[JPMORGAN CHASE BANK, N.A., as
	 	 	Administrative
Agent] 12
	 
	 
	 	 	 	 
	[_____________________]
	 
	 	 	 	 
	By:
	 	 	 	 
	 	 	 	 
	 

	 	Title:	 	 
	 
	 	 	 	 
	Consented to:
	 
	 	 	 	 
	[CLIFFS NATURAL
RESOURCES INC.] 13
	 
	 	 	 	 
	[_____________________]
	 
	 	 	 	 
	By:
	 	 	 	 
	 	 	 	 
	 

	 	Title:	 	 








 




			
	12	 	To be added only if the consent of the
Administrative Agent is required by the terms of the Term Loan Agreement.
	 
	13	 	To be added only if the consent of the
Borrower is required by the terms of the Term Loan Agreement.




E-4









 










Annex 1 to

Assignment and Assumption




Standard Terms and Conditions For

Assignment and Assumption




     1. Representations and Warranties.



     1.1. Assignor. [The][Each] Assignor (a) represents and warrants that (i) it is the legal and
beneficial owner of [the][[the relevant] Assigned Interest, (ii) [the][such] Assigned Interest is
free and clear of any lien, encumbrance or other adverse claim and (iii) it has full power and
authority, and has taken all action necessary, to execute and deliver this Assignment and
Assumption and to consummate the transactions contemplated hereby; and (b) assumes no
responsibility with respect to (i) any statements, warranties or representations made in or in
connection with the Term Loan Agreement or any other Loan Document, (ii) the execution, legality,
validity, enforceability, genuineness, sufficiency or value of the Loan Documents or any collateral
thereunder, (iii) the financial condition of the Borrower, any of its Subsidiaries or Affiliates or
any other Person obligated in respect of any Loan Document or (iv) the performance or observance by
the Borrower, any of its Subsidiaries or Affiliates or any other Person of any of their respective
obligations under any Loan Document.



     1.2. Assignee. [The][Each] Assignee (a) represents and warrants that (i) it has full power
and authority, and has taken all action necessary, to execute and deliver this Assignment and
Assumption and to consummate the transactions contemplated hereby and to become a Lender under the
Term Loan Agreement, (ii) it meets all the requirements to be an assignee under Section
10.10(b)(iii), (v) and (vi) of the Term Loan Agreement (subject to such consents, if any, as may be
required under Section 10.10(b)(iii) of the Term Loan Agreement), (iii) from and after the
Effective Date, it shall be bound by the provisions of the Term Loan Agreement as a Lender
thereunder and, to the extent of [the][the relevant] Assigned Interest, shall have the obligations
of a Lender thereunder, (iv) it is sophisticated with respect to decisions to acquire assets of the
type represented by [the][such] Assigned Interest and either it, or the Person exercising
discretion in making its decision to acquire [the][such] Assigned Interest, is experienced in
acquiring assets of such type, (v) it has received a copy of the Term Loan Agreement, and has
received or has been accorded the opportunity to receive copies of the most recent financial
statements delivered pursuant to Section 6.01 thereof, as applicable, and such other documents and
information as it deems appropriate to make its own credit analysis and decision to enter into this
Assignment and Assumption and to purchase [the][such] Assigned Interest, (vi) it has, independently
and without reliance upon the Administrative Agent or any other Lender and based on such documents
and information as it has deemed appropriate, made its own credit analysis and decision to enter
into this



E-5









 




Assignment and Assumption and to purchase [the][such] Assigned Interest, and (vii) if it
is a Foreign Lender, attached hereto is any documentation required to
be delivered by it pursuant to the terms of the Term Loan Agreement, duly completed and executed
by [the][such] Assignee; and (b) agrees that (i) it will, independently and without reliance upon
the Administrative Agent, [the][any] Assignor or any other Lender, and based on such documents and
information as it shall deem appropriate at the time, continue to make its own credit decisions in
taking or not taking action under the Loan Documents, and (ii) it will perform in accordance with
their terms all of the obligations which by the terms of the Loan Documents are required to be
performed by it as a Lender.




     2. Payments. From and after the Effective Date, the Administrative Agent shall make all
payments in respect of [the][each] Assigned Interest (including payments of principal, interest,
fees and other amounts) to [the][the relevant] Assignor for amounts which have accrued to but
excluding the Effective Date and to [the][the relevant] Assignee for amounts which have accrued
from and after the Effective Date.



     3. General Provisions. This Assignment and Assumption shall be binding upon, and inure to the
benefit of, the parties hereto and their respective successors and assigns. This Assignment and
Assumption may be executed in any number of counterparts, which together shall constitute one
instrument. Delivery of an executed counterpart of a signature page of this Assignment and
Assumption by telecopy shall be effective as delivery of a manually executed counterpart of this
Assignment and Assumption. This Assignment and Assumption shall be governed by, and construed in
accordance with, the law of the State of New York




E-6