Exhibit 10.95
AMENDMENT NO. 2 TO TERM LOAN AGREEMENT
AMENDMENT NO. 2 TO TERM LOAN AGREEMENT dated as of February 8, 2013 (this “Amendment”) to the Term Loan Agreement dated as of March 4, 2011 (as heretofore amended, the “Credit Agreement”) among CLIFFS NATURAL RESOURCES INC. (the “Borrower”), various Lenders from time to time party thereto and JPMORGAN CHASE BANK, N.A., as Administrative Agent (the “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.
W I T N E S S E T H :
WHEREAS, the parties hereto desire to amend the Credit Agreement as set forth below;
NOW, THEREFORE, the parties hereto agree as follows:
SECTION 1. Defined Terms; References. Unless otherwise specifically defined herein, each term used herein that is defined in the Credit Agreement has the meaning assigned to such term in the Credit Agreement. Each reference to “hereof”, “hereunder”, “herein” and “hereby” and each other similar reference and each reference to “this Agreement” and each other similar reference contained in the Loan Documents shall, after this Amendment becomes effective, refer to the Credit Agreement as amended hereby.
SECTION 2. Amendments.
(a) The definition of “Applicable Margin” in Section 1.01 of the Credit Agreement is amended by replacing the grid therein in its entirety and adding an additional paragraph directly under such grid as set forth below:
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Leverage Ratio | Base Rate Loans | Eurodollar Loans |
Less than 1.00:1.00 | 0% | 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 and less than 3.50:1.00 | 0.875% | 1.875% |
Greater than or equal to 3.50:1.00 and less than 4.25:1.00 | 1.25% | 2.25% |
Greater than or equal to 4.25:1.00 | 1.50% | 2.50% |
Notwithstanding the foregoing, (1) the rates per annum set forth above opposite the words “Greater than or equal to 3.50:1.00 and less than 4.25:1.00” shall apply during the Temporary Pricing Period and (2) following the date on which the officer’s certificate referenced in Section 6.01(c) is delivered with respect to the first quarter ending at least one day after the last day of the Temporary Revised Covenant Period, no rates higher than those set forth above opposite the words “Greater than or equal to 2.75:1.00 and less than 3.50:1.00” shall apply.
(b) The definition of “Restricted Investments” in Section 1.01 of the Credit Agreement is amended by (x) replacing clause (o) thereof in its entirety as follows:
(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 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, (A) during the Temporary Revised Covenant Period, the Leverage Ratio shall not be more than 3.50 to 1.00 on a pro forma basis and (B) the Borrower shall deliver to the Administrative Agent at least 3 Business Days (or such shorter
period as may be agreed to by the Administrative Agent) prior to such Investment a certificate confirming such pro forma compliance required under this clause (o);
; and (y) replacing clause (q) thereof in its entirety as follows:
(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, (i) during the Temporary Revised Covenant Period, the Leverage Ratio shall not be more than 3.50 to 1.00 on a pro forma basis and (ii) the Borrower shall deliver to the Administrative Agent at least 3 Business Days (or such shorter period as may be agreed to by the Administrative Agent) prior to such Investment a certificate confirming such pro forma compliance required under this clause (q).
(c) The following new definitions are added to Section 1.01 of the Credit Agreement in the appropriate place in alphabetical order:
“Balance Sheet Leverage Ratio” means, at any time the same is to be determined, the ratio of Total Funded Debt to Total Capitalization, each determined as of such time.
“Hybrid Securities” means any trust preferred security, deferrable interest subordinated debt security, mandatory convertible debt security or other hybrid debt security issued by the Borrower or any of its Restricted Subsidiaries (or a trust or other entity formed by the Borrower or any of its Restricted Subsidiaries) that (a) is accorded at least some equity treatment by S&P and/or Moody’s at the time of issuance thereof, (b) if issued by any Loan Party, is expressly subordinate in right of payment to the Obligations, and (c) by its terms (or by the terms of any security into which it is convertible or for which it is exchangeable) does not mature (excluding any maturity as the result of an optional redemption by the issuer thereof) and is not mandatorily redeemable or subject to any mandatory repurchase requirement (except for any redemption or mandatory repurchase as the result of a change in control or event of default) at any time prior to the date that is six months after the Termination Date.
“Second Amendment Effective Date” means February 8, 2013.
“Tangible Net Worth” means, at any time the same is to be determined, Net Worth at such time less, to the extent reflected therein, the net amount of intangible assets which would appear on the balance sheet of the Borrower and its Restricted Subsidiaries determined on a consolidated basis in accordance with GAAP.
“Temporary Pricing Period” means the period beginning on the Second Amendment Effective Date and ending on the date on which the officer’s certificate referenced in Section 6.01(c) is delivered for the quarter ended March 31, 2013 (inclusive).
“Temporary Revised Covenant Period” means the period beginning on the Second Amendment Effective Date and ending on the earlier of (a) December 31, 2013 (inclusive) and (b) the date on which the Agent receives a notice from the Borrower providing that it desires to terminate the Temporary Revised Covenant Period.
“Total Capitalization” means, at any time the same is to be determined, the sum of Total Funded Debt and Net Worth.
(d) Section 1.01(a) of the Credit Agreement is amended by deleting the definitions of “2013 PP Notes”, “Acquisition Indebtedness” and “Transition Period” in their entirety.
(e) The Credit Agreement is amended by adding a new Section 1.05 as set forth below:
Section 1.05. Hybrid Securities. For purposes of determining Total Funded Debt and Net Worth, Hybrid Securities shall be accorded the same capital treatment as given to such Hybrid Securities by either S&P or Moody’s (whichever gives the lower treatment) at the time of issuance thereof; provided, however, that the maximum amount of Hybrid Securities that may be included in Net Worth and excluded from Total Funded Debt shall not at any time exceed 15% of the sum of Total Funded Debt plus Net Worth, in each case including such Hybrid Securities in accordance with their capital treatment by either S&P or Moody’s (whichever is used in accordance with this paragraph).
(f) Section 6.12(j) of the Credit Agreement is amended to read in its entirety as set forth below:
(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 (i) during the Temporary Revised Covenant Period, 5% of consolidated total assets of the Borrower and its Restricted Subsidiaries as measured as of the end of the most recently completed fiscal quarter prior to the incurrence of such Indebtedness and (ii) at all other times, 10% of consolidated total assets of the Borrower and its Restricted Subsidiaries as measured as of the end of the most recently completed fiscal quarter prior to the incurrence of such Indebtedness;
(g) Section 6.13(k) of the Credit Agreement is amended to read in its entirety as set forth below:
(k) 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 (i) during the Temporary Revised Covenant Period, 5%
of consolidated total assets of the Borrower and its Restricted Subsidiaries as measured as of the end of the most recently completed fiscal quarter prior to the incurrence of such Indebtedness and (ii) at all other times, 10% of consolidated total assets of the Borrower and its Restricted Subsidiaries as measured as of the end of the most recently completed fiscal quarter prior to the incurrence of such Indebtedness.
(h) Section 6.16 of the Credit Agreement is amended to read in its entirety as set forth below:
6.16. Dividends and Certain Other Restricted Payments. (a) 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, (i) 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 (ii) 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 (x) by any Restricted Subsidiary of the Borrower to its parent corporation or (y) previously declared by the Borrower if at the declaration date such payment was permitted by the foregoing.
(b) During the Temporary Revised Covenant Period and subject to Section 6.16(a), the aggregate amount of dividends and distributions referred to in clause (i) of Section 6.16(a) shall not exceed $0.3125 per common share in any fiscal quarter, unless after giving effect to any such dividend or distribution, the Leverage Ratio is not more than 3.50 to 1.00 on a pro forma basis.
(i) Section 6.18(a) of the Credit Agreement is amended to read in its entirety as set forth below:
(a) (i) Maximum Ratio of Total Funded Debt to EBITDA. Except during the Temporary Revised Covenant Period, the Borrower shall not, as of the last day of each fiscal quarter of the Borrower, permit the Leverage Ratio to be more than 3.50 to 1.00.
(ii) Temporary Revised Covenant Period. During the Temporary Revised Covenant Period, the Borrower shall not, as of the last day of each fiscal quarter of the Borrower, permit (x) the Balance Sheet Leverage Ratio to be more than 52.5% or (y) Tangible Net Worth to be less than $4,621,000,000.
SECTION 3. Representations of Company. The Borrower represents and warrants that (i) each of the representations and warranties of the Loan Parties set forth
in the Credit Agreement and in the other Loan Documents will be true and correct in all material respects on and as of the Amendment Effective Date (except to the extent the same expressly relate to an earlier date with respect to which such representations and warranties shall be true and correct in all material respects as to such earlier date) and (ii) no Default or Event of Default will have occurred and be continuing on such date.
SECTION 4. Governing Law. This Amendment shall be governed by and construed in accordance with the laws of the State of New York.
SECTION 5. Counterparts. This Amendment may be signed in any number of counterparts, each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument. Delivery of an executed signature page of this Amendment by facsimile or other electronic transmission shall be effective as delivery of a manually executed counterpart hereof.
SECTION 6. Effectiveness. This Amendment shall become effective on the date (“Amendment Effective Date”) when the Administrative Agent shall have received:
(a) from each of the Borrower and Lenders comprising the Required Lenders a counterpart hereof signed by such party; and
(b) an amendment fee for the account of each Lender in the amount heretofore mutually agreed.
[Signature Pages Follow]
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed as of the date first above written.
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CLIFFS NATURAL RESOURCES INC. |
By: | /s/ Terrance M. Paradie |
Name: Terrance M. Paradie |
Title: Senior Vice President and Chief Financial Officer |
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By: | /s/ Matthew C. Bittner |
Name: Matthew C. Bittner |
Title: Vice President and Treasurer |
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JPMORGAN CHASE BANK, N.A. |
By: | /s/ Peter S. Predun |
Name: Peter S. Predun |
Title: Executive Director |
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BANK OF AMERICA, N.A. |
By: | /s/ James K.G. Campbell |
Name: James K.G. Campbell |
Title: Director |
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AUSTRALIA AND NEW ZEALAND BANKING GROUP LIMITED |
By: | /s/ Robert Grillo |
Name: Robert Grillo |
Title: Director |
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Bank of Montreal, Chicago Branch |
By: | /s/ Yacouba Kane |
Name: Yacouba Kane |
Title: Vice president |
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CIBC Inc. |
By: | /s/ Dominic Sorresso |
Name: Dominic Sorresso |
Title: Authorized Signatory
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By: | /s/ Eoin Roche |
Name: Eoin Roche |
Title: Authorized Signatory |
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Citibank, N.A. |
By: | /s/ Raymond G. Dunning |
Name: Raymond G. Dunning |
Title: Vice President |
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COMERICA BANK, |
By: | /s/ Brandon Welling |
Name: Brandon Welling |
Title: Vice President |
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COMMONWEALTH BANK OF AUSTRALIA |
By: | /s/ Nick Rees |
Name: Nick Rees |
Title: Vice President |
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CREDIT AGRICOLE CORPORATE AND INVESTMENT BANK |
By: | /s/ Blake Wright |
Name: Blake Wright |
Title: Managing Director
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By: | /s/ James Austin |
Name: James Austin |
Title: Vice President |
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DEUTSCHE BANK AG NEW YORK BRANCH |
By: | /s/ Virginia Cosenza |
Name: Virginia Cosenza |
Title: Vice President
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By: | /s/ Yvonne Tilden |
Name: Yvonne Tilden |
Title: Director |
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FIFTH THIRD BANK |
By: | /s/ Eric Welsch |
Name: Eric Welsch |
Title: Vice President
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First Commonwealth Bank |
By: | /s/ Stephen J. Orban |
Name: Stephen J. Orban |
Title: Senior Vice President
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FIRSTMERIT BANK, N.A. |
By: | /s/ Laura C. Redinger |
Name: Laura C. Redinger |
Title: Vice President
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KEYBANK NATIONAL ASSOCIATION |
By: | /s/ Suzannah Valdivia |
Name: Suzannah Valdivia |
Title: Vice President
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Mizuho Corporate Bank (USA) |
By: | /s/ Leon Mo |
Name: Leon Mo |
Title: Senior Vice President
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National Australia Bank Limited |
By: | /s/ Marcia Bockol |
Name: Marcia Bockol |
Title: Director
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed as of the date first above written.
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CLIFFS NATURAL RESOURCES INC. |
By: | |
Name: |
Title: |
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Name: |
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JPMORGAN CHASE BANK, N.A. |
By: | |
Name: |
Title: |
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PNC BANK, NATIONAL ASSOCIATION |
By: | /s/ Joseph G. Moran |
Name: Joseph G. Moran |
Title: Senior Vice President |
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RBS Citizens, N.A. |
By: | /s/ Curtis C. Hunter III |
Name: Curtis C. Hunter III |
Title: Senior Vice President
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed as of the date first above written.
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CLIFFS NATURAL RESOURCES INC. |
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Name: |
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Name: |
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JPMORGAN CHASE BANK, N.A. |
By: | |
Name: |
Title: |
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Sumitomo Mitsui Banking Corporation |
By: | /s/ Shuji Yabe |
Name: Shuji Yabe |
Title: Managing Director
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The Bank of Nova Scotia |
By: | /s/ Rafael Tobon |
Name: Rafael Tobon |
Title: Director
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THE BANK OF TOKYO-MITSUBISHI UFJ, LTD. |
By: | /s/ Thomas Danielson |
Name: Thomas Danielson |
Title: Authorized Signatory
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Toronto Dominion (New York) LLC |
By: | /s/ Debbi L. Brito |
Name: Debbi L. Brito |
Title: Authorized Signatory
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Union Bank, N.A. |
By: | /s/ Yangling Joanne Si |
Name: Yangling Joanne Si |
Title: Vice President
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U.S. Bank National Association |
By: | /s/ Mark Irey |
Name: Mark Irey |
Title: AVP
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Wells Fargo Bank, N.A. |
By: | /s/ Leanne S. Phillips |
Name: Leanne S. Phillips |
Title: Director
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WESTPAC BANKING CORPORATION |
By: | /s/ David Brumby |
Name: David Brumby |
Title: Executive Director Westpac Americas
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