UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(D) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported): December 5, 2001
STILLWATER MINING COMPANY
- ------------------------------------------------------------------------------
(Exact name of registrant as specified in its charter)
DELAWARE 0-25090 81-0480654
(State or other jurisdiction (Commission File Number) (I.R.S. Employer
of incorporation) Identification No.)
737 PALLADIUM PLACE
COLUMBUS, MONTANA 59019
(Address of principal executive offices) (Zip code)
(406) 322-8700
---------------
(Registrant's telephone number, including area code)
ITEM 5. Other Events.
On December 5, 2001, the registrant amended its credit facility,
pursuant to Amendment No. 2 to the Credit Agreement, dated as of November
30, 2001, by and among the registrant and Toronto Dominion (Texas), Inc.,
a copy of which is attached hereto as Exhibit 10.1.
Attached hereto as Exhibit 10.2 is a copy of the Waiver, Consent and
Amendment No. 1 to the Credit Agreement, dated as of June 27, 2001, by and
among the registrant and Toronto Dominion (Texas), Inc.
EXHIBITS
10.1 Amendment No. 2 to Credit Agreement, dated as of November 30,
2001, made by and among Stillwater Mining Company and Toronto
Dominion (Texas), Inc.
10.2 Waiver, Consent and Amendment No. 1 to Credit Agreement, dated as
of June 27, 2001, made by and among Stillwater Mining Company and
Toronto Dominion (Texas), Inc.
Signatures
Pursuant to the requirements of the Securities Exchange Act of
1934, the registrant has duly caused this report to be signed on its behalf
by the undersigned thereunto duly authorized.
Stillwater Mining Company
(Registrant)
Date: December 10, 2001 By: /s/ JAMES A. SABALA
-------------------------------------
James A. Sabala
Vice President and Chief Financial
Officer
EXHIBITS
10.1 Amendment No. 2 to Credit Agreement, dated as of November 30, 2001,
made by and among Stillwater Mining Company and Toronto Dominion
(Texas), Inc.
10.2 Waiver, Consent and Amendment No. 1 to Credit Agreement, dated as of
June 27, 2001, made by and among Stillwater Mining Company and
Toronto Dominion (Texas), Inc.
Exhibit 10.1
AMENDMENT NO. 2 TO CREDIT AGREEMENT
THIS AMENDMENT NO. 2 TO CREDIT AGREEMENT, dated as of November 30,
2001 (this "Amendment"), is made by and among STILLWATER MINING COMPANY, a
Delaware corporation (the "Borrower"), and TORONTO DOMINION (TEXAS), INC.,
as administrative agent (in such capacity, the "Administrative Agent"), for
the Lenders (such capitalized term and all other capitalized terms not
otherwise defined herein shall have the meanings set forth in the Credit
Agreement).
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Borrower, the Lenders, the Administrative Agent, NM
Rothschild & Sons Limited, as technical agent, Westdeutsche Landesbank
Girozentrale, New York Branch, as documentation agent, and TD Securities
(USA) Inc., as lead arranger, have heretofore entered into that certain
Credit Agreement, dated as of February 23, 2001 (as amended by Waiver,
Consent and Amendment No. 1, dated as of June 27, 2001, the "Credit
Agreement");
WHEREAS, the Borrower now desires to amend certain provisions of
the Credit Agreement and desires that the Lenders consent to such
amendments; and
WHEREAS, the Required Lenders are willing, on and subject to the
terms and conditions set forth below, to consent to such modifications of
the Credit Agreement;
NOW, THEREFORE, in consideration of the premises and the mutual
agreements herein contained, the Borrower and the Required Lenders hereby
agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1. Certain Definitions. The following terms (whether or
not underscored) when used in this Amendment shall have the following
meanings (such meanings to be equally applicable to the singular and plural
forms thereof):
"Administrative Agent" is defined in the preamble.
"Amendment" is defined in the preamble.
"Behre Dolbear Report" has the meaning set forth in Section 3.4
hereof.
"Borrower" is defined in the preamble.
"Credit Agreement" is defined in the first recital.
SECTION 1.2. Other Definitions. Terms for which meanings are
provided in the Credit Agreement are, unless otherwise defined herein or
the context otherwise requires, used in this Amendment with such meanings.
ARTICLE II
AMENDMENTS TO CREDIT AGREEMENT
Subject to the satisfaction (or waiver) of the conditions set
forth in Article III, the Credit Agreement is hereby amended in accordance
with this Article II.
SECTION 2.1. Amendments to Definition of "Applicable Margin". (a)
The table in clause (b) of the definition of "Applicable Margin" in Section
1.1 of the Credit Agreement is hereby amended and restated in its entirety
to read as follows:
Applicable Margin for
Debt to EBITDA LIBO Rate Applicable Margin for
Ratio Loans Base Rate Loans
-------------- --------------------- ---------------------
<1.50:1 250.0 bps 150.0 bps
>1.50:1 and <2.0:1 262.5 bps 162.5 bps
-
>2.0:1 and <2.50:1 275.0 bps 175.0 bps
-
>2.50:1 287.5 bps 187.5 bps
-
(b) Clause (c) of the definition of "Applicable Margin" is hereby amended
and restated in its entirety to read as follows:
"(c) with respect to Term B Loans, at all times 275 basis
points, in the case of Term B Loans maintained as Base Rate
Loans, and 375 basis points, in the case of Term B Loans
maintained as LIBO Rate Loans."
SECTION 2.2. Amendment to Definition of "EBITDA". The definition
of "EBITDA" in Section 1.1 of the Credit Agreement is hereby amended by
renaming clause "(f)" thereof as clause "(g)" and by adding the following
new clause (f) immediately before the word "minus":
"plus (f) the amount deducted, in determining Net Income,
representing charges taken in the fourth Fiscal Quarter of the
2001 Fiscal Year in respect of the early termination of
certain construction contracts relating to the development of
the East Boulder Mine, provided that the aggregate amount
added to Net Income pursuant to this clause (f) does not
exceed $15,000,000;"
SECTION 2.3. Amendment to Definition of "Excess Cash Flow". Clause
(b) of the definition of "Excess Cash Flow" in Section 1.1 of the Credit
Agreement is hereby amended and restated in its entirety to read as
follows:
"(b) the sum (for such Fiscal Quarter), without duplication, of
(i) the amount equal to the Capital Expenditures made by
the Borrower and its Subsidiaries in such Fiscal Quarter to the
extent financed with internally generated cash flow,
plus
- ----
(ii) scheduled principal repayments of Debt (including
the Term Loans) and voluntary principal prepayments of Loans
(provided that, in the case of Revolving Loans or any other Debt
incurred pursuant to a revolving commitment, there is a
corresponding permanent reduction in such revolving commitment),
in each case to the extent made during such Fiscal Quarter from
internally generated cash flow,
plus
- ----
(iii) the net increase (if any) in Net Working Capital."
SECTION 2.4. Amendment to Definition of "LIBO Rate". The
definition of "LIBO Rate" in Section 1.1 of the Credit Agreement is hereby
amended by the addition of the following proviso at the end thereof:
"provided, however, that, for the purposes of determining the
interest rate with respect to Term B Loans, the LIBO Rate
shall not be less than 2.50%."
SECTION 2.5. Addition of Definition of "Utilization Fee". Section
1.1 of the Credit Agreement is hereby amended by adding the following new
definition:
""Utilization Fee" means an incremental fee of seventy five
(75) basis points that is added to the calculation of both (i)
interest on all Revolving Loans (and all unreimbursed Letter
of Credit drawings) and (ii) the Letter of Credit fee payable
for the account of the Revolving Loan Lenders under Section
3.3.3 during each period of time in which the aggregate amount
of Revolving Loans and Letter of Credit Outstandings exceeds
$25,000,000."
SECTION 2.6. Amendment to Section 2.6.2. The third sentence of
Section 2.6.2 of the Credit Agreement is hereby amended and restated in its
entirety as follows:
"Prior to 11:00 a.m. New York time, on the first Business Day
following the Disbursement Date, the Borrower will reimburse
the Administrative Agent, for the account of the applicable
Issuer, for all amounts which such Issuer has disbursed under
such Letter of Credit, together with interest thereon at a
rate per annum equal to the rate per annum then in effect for
Base Rate Loans (with the then Applicable Margin for Revolving
Loans accruing on such amount plus, if applicable, the
Utilization Fee) pursuant to Section 3.2 for the period from
the Disbursement Date through the date of such reimbursement."
SECTION 2.7. Amendment to Section 3.1.1. Clause (f) of Section
3.1.1 of the Credit Agreement is hereby amended to replace each reference
therein to the "2003 Fiscal Year" with a reference to the "2002 Fiscal
Year".
SECTION 2.8. Amendment to Section 3.2.1. Clauses (a) and (b) of
Section 3.2.1 of the Credit Agreement are hereby amended and restated in
their entireties to read as follows:
"(a) on that portion maintained from time to time as a
Base Rate Loan, equal to the sum of the Alternate Base Rate from
time to time in effect plus the Applicable Margin plus, if
applicable, the Utilization Fee; and
(b) on that portion maintained as a LIBO Rate Loan,
during each Interest Period applicable thereto, equal to the sum
of the LIBOR Rate (Reserve Adjusted) for such Interest Period plus
the Applicable Margin plus, if applicable, the Utilization Fee."
SECTION 2.9. Amendment to Section 3.3.3. Section 3.3.3 of the
Credit Agreement is hereby amended by adding the phrase "plus, if
applicable, the Utilization Fee" in the first sentence thereof immediately
after the phrase "Applicable Margin for Revolving Loans maintained as LIBO
Rate Loans".
SECTION 2.10. Amendment to Section 5.2.3. Clause (i) of Section
5.2.3(b) of the Credit Agreement is hereby amended and restated in its
entirety to read as follows:
"(i) an officer's certificate in the form of Exhibit O
hereto certifying (with such supporting documentation as the
Administrative Agent or the Technical Agent may reasonably
require) that (A) the Capital Expenditures made or committed to be
made by the Borrower and its Subsidiaries on or prior to the last
day of such Fiscal Quarter are consistent in all material respects
with the Capital Expenditures reflected in the Borrower's Mine
Plans, (B) construction and development progress prior to the last
day of such Fiscal Quarter with respect to the Project will permit
the Borrower to satisfy the total ounces of Palladium Production
and Platinum Production set forth in the Mine Plans for the
periods set forth in such Mine Plans, (C) the Borrower has no
reason to believe that (1) the Capital Expenditures made (or to be
made) on or prior to the last day of the upcoming Fiscal Quarter
will be inconsistent in any material respect with the Capital
Expenditures reflected in the Borrower's Mine Plans and (2)
construction and development progress that is expected prior to
the last day of the upcoming Fiscal Quarter with respect to the
Project will not permit the Borrower to satisfy the total ounces
of Palladium Production and Platinum Production set forth in the
Mine Plans for the periods set forth in such Mine Plans and (D)
with respect to any request for the making of a Revolving Loan or
the issuance of (or extension of the Stated Expiry Date of) a
Letter of Credit which, if made, would result in the aggregate
amount of Revolving Loans and Letter of Credit Outstandings
exceeding $25,000,000, for the 90-consecutive-day period ending on
the last day of the month most recently ended prior to such
request, the Borrower (1) milled an average of not less than 2,250
tons of ore per day at the Nye Mine and an average of not less
than 900 tons of ore per day at the East Boulder Mine and (2)
maintained combined Palladium and Platinum Production, measured in
returnable ounces, of not less than 92% of the returnable ounces
projected to be produced during such period under the Mine Plan
for the Nye Mine and the Mine Plan for the East Boulder Mine (on a
combined basis) at a cash cost per returnable ounce not exceeding
110% of the cash cost per returnable ounce obtained by taking the
weighted average of the cash cost per returnable ounce reflected
in the Mine Plan for the Nye Mine and the cash cost per returnable
ounce reflected in the Mine Plan for the East Boulder Mine, such
weighting to be based on the number of returnable ounces produced
at the Nye Mine and the number of returnable ounces produced at
the East Boulder Mine divided by the sum of such returnable ounces
(it being understood that, in the event such 90-consecutive-day
period covers a period during which the relevant Mine Plan or Mine
Plans have an amount of returnable ounces and/or a cash cost per
returnable ounce for a portion of such period that is different
from the amount of returnable ounces or cash cost per returnable
ounce for the other portion of such period, the minimum amount of
returnable ounces and/or maximum cash cost per returnable ounce
for purposes of this subclause (2) shall be based on the weighted
average thereof, such weighting to be based on the number of days
in each such period divided by 90), and"
SECTION 2.11. Amendment to Section 6.3. Clause (ii) of Section
6.3(a) of the Credit Agreement is hereby amended and restated in its
entirety to read as follows:
"(ii) in order to timely complete the Project and to operate
the Nye Mine and the East Boulder Mine at a production
capacity of 2500 and 1000 tons of ore, respectively, per day,
or such higher production capacity as may be reflected from
time to time in the applicable Mine Plans (and to conduct such
construction as may be necessary to achieve such production
levels); and"
SECTION 2.12. Amendment to Section 7.1.1. Clause (m) of Section
7.1.1 of the Credit Agreement is hereby amended by adding the following
clause at the end thereof:
", and, on or prior to January 18, 2002, a supplement by the
Mining Consultant to the Behre Dolbear Report (as defined in
Section 3.4 of Amendment No. 2 to this Agreement, dated as of
November 30, 2001, by and among the Borrower and the
Administrative Agent ("Amendment No. 2")), which shall review
(and report on) those aspects of the revised Mine Plans
delivered in connection with Amendment No. 2 not fully
addressed in the Behre Dolbear Report, such supplement to be
in form, scope and substance reasonably satisfactory to the
Agents"
SECTION 2.13. Addition of New Section 7.1.15. Section 7.1 of the
Credit Agreement is hereby amended by adding the following new Section
7.1.15:
"SECTION 7.1.15. Interest Rate Protection. The Borrower
shall (i) on or before January 31, 2002, enter into an interest
rate swap or similar interest rate protection arrangement with a
Lender or an Affiliate of a Lender for the purpose of protecting
the Borrower against fluctuations in interest rates to the extent
necessary to provide that at least 50% of the outstanding
aggregate principal amount of the Term Loans (which may take into
account the scheduled amortization thereof as set forth in clauses
(c) and (d) of Section 3.1.1 hereof) is subject to a fixed
interest rate (after giving effect to such arrangement), with the
terms and conditions of such arrangement being reasonably
satisfactory to the Administrative Agent, and (ii) thereafter
maintain such arrangement in full force and effect so long as
there remains outstanding at least $10,000,000 of unpaid principal
under the Term Loans."
SECTION 2.14. Amendment to Section 7.2.2. Clause (l) of Section
7.2.2 of the Credit Agreement is hereby amended by substituting
"$10,000,000" for "$2,000,000".
SECTION 2.15. Amendment to Section 7.2.4. The table in clause (a)
of Section 7.2.4 of the Credit Agreement is hereby amended and restated to
read as follows:
Debt to
Period EBITDA Ratio
------ ------------
Effective Date through (and including) December 30, 2001 3.00:1.0
December 31, 2001 2.50:1.0
January 1, 2002 through (and including) March 31, 2002 3.50:1.0
April 1, 2002 through (and including) June 30, 2002 3.35:1.0
July 1, 2002 through (and including) September 30, 2002 3.00:1.0
October 1, 2002 through (and including) December 31, 2002 2.25:1.0
January 1, 2003 and thereafter 2.00:1.0
SECTION 2.16. Amendments to Section 7.2.7. (a) The table in
Section 7.2.7 of the Credit Agreement is hereby amended in its entirety to
read as follows:
Capital
Expenditure Amount
Fiscal Year (in millions)
----------- -------------
2001 $252.0
2002 $ 79.0
2003 $ 57.0
2004 $ 65.0
2005 $ 74.0
2006 $ 76.0
2007 $ 73.0
(b) Subclause (ii) of the proviso to Section 7.2.7 of the Credit
Agreement is amended to add the following proviso at the end thereof:
"provided that any Carry-Forward Amount which would result
from the Borrower making Capital Expenditures in Fiscal Year
2001 in an aggregate amount that is less than the maximum
amount permitted by this Section 7.2.7 for such Fiscal Year
may not exceed $10,000,000."
SECTION 2.17. Amendment to Section 7.2.17. Section 7.2.17 of the
Credit Agreement is hereby amended by adding the following clause at the
end thereof:
"and other than the Borrower's obligation to pay the price due
for the purchase of the requisite minimum amount of electrical
power that is required to be purchased under contracts
pursuant to which the Borrower is required to purchase a
minimum amount of electrical power so long as such minimum
amounts do not exceed the reasonably anticipated electrical
power requirements of the Borrower necessary to satisfy the
development and production requirements of the Mine Plan for
the Nye Mine (inclusive of the related electrical power
requirements for the Columbus smelter and refinery) in effect
at the time such minimum amounts were agreed to"
SECTION 2.18. Amendment to Section 8.1.14. (a) Clauses (ii) and
(iii) of Section 8.1.14 of the Credit Agreement are hereby amended and
restated to read as follows:
"(ii) at least 510,000, 565,000, 620,000 and 660,000 ounces
for each of the four-consecutive-Fiscal-Quarter periods ending
on the last day of the first, second, third and fourth Fiscal
Quarters of the 2002 Fiscal Year, respectively, and (iii) at
least 660,000 ounces in the 2003 Fiscal Year and in each
Fiscal Year thereafter"
(b) Subclause (y)(2) of the proviso to Section 8.1.14 of
the Credit Agreement is hereby amended by substituting "660,000
ounces" for each reference to "879,000 ounces" therein.
SECTION 2.19. Amendment of Exhibit O. Exhibit O to the Credit
Agreement is hereby amended and restated to read as set forth in Annex I
hereto.
SECTION 2.20. Revised Mine Plans. The Mine Plan for the Nye Mine
and the Mine Plan for the East Boulder Mine attached as Annex II hereto are
hereby substituted, respectively, for the Mine Plan for the Nye Mine and
the Mine Plan for the East Boulder Mine provided to the Lenders in
connection with the initial extension of Loans under the Credit Agreement.
ARTICLE III
CONDITIONS TO EFFECTIVENESS
The amendments contained in Article II shall be effective on the
date first above written, subject to the satisfaction or waiver of each of
the conditions contained in Article III:
SECTION 3.1. Execution of Counterparts. The Administrative Agent
shall have received counterparts of this Amendment duly executed and
delivered by (i) the Borrower and (ii) the Administrative Agent on behalf
of the Required Lenders that have executed and delivered to the
Administrative Agent their written consent to the amendments contained
herein.
SECTION 3.2. Amendment Fee. The Administrative Agent shall have
received the amendment fees due and payable pursuant to Section 5.3.
SECTION 3.3. Fees and Expenses. The Administrative Agent shall
have received all fees and expenses due and payable pursuant to Section 5.4
(to the extent then invoiced) and pursuant to the Credit Agreement
(including all previously invoiced fees and expenses).
SECTION 3.4. Mining Consultant's Report. The Mining Consultant
shall have reviewed the revised Mine Plans attached hereto as Annex II and
prepared and delivered to the Agents, the Lenders and the Borrower a
written Mining Consultant's report, reflecting the Mining Consultant's
review of such Mine Plans (the "Behre Dolbear Report").
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.1. Representations and Warranties. In order to induce
the Required Lenders and the Administrative Agent to enter into this
Amendment, the Borrower hereby represents and warrants to the Agents,
Issuer and each Lender, as of the date hereof, as follows:
(a) the representations and warranties set forth in Article
VI of the Credit Agreement (excluding, however, those contained in
Section 6.7 of the Credit Agreement) and in each other Loan
Document are, in each case, true and correct (unless stated to
relate solely to an earlier date, in which case such
representations and warranties are true and correct as of such
earlier date);
(b) there is no pending or, to the knowledge of the Borrower
or its Subsidiaries, threatened litigation, action, proceeding or
labor controversy, except as disclosed in Item 6.7 of the
Disclosure Schedule, affecting the Borrower, any of its
Subsidiaries or any other Obligor, or any of their respective
properties, businesses, assets or revenues, which could reasonably
be expected to have a Material Adverse Effect, and no development
has occurred in any labor controversy, litigation, arbitration or
governmental investigation or proceeding disclosed in Item 6.7
which could reasonably be expected to have a Material Adverse
Effect;
(c) there is no pending or, to the knowledge of the Borrower
or its Subsidiaries, threatened litigation, action, proceeding or
labor controversy which purports to affect the legality, validity
or enforceability of the Credit Agreement or any other Loan
Document;
(d) no Default has occurred and is continuing, and neither
the Borrower nor any of its Subsidiaries nor any other Obligor is
in material violation of any law or governmental regulation or
court order or decree;
(e) this Amendment has been duly authorized, executed and
delivered by the Borrower and constitutes a legal, valid and
binding obligation of the Borrower, enforceable against it in
accordance with its terms, except to the extent the enforceability
hereof may be limited by (i) the effect of bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter
in effect relating to or affecting the rights and remedies of
creditors generally and (ii) the effect of general principles of
equity, whether enforcement is considered in a proceeding in
equity or at law; and
(f) the execution, delivery and performance by the Borrower
of this Amendment does not (i) contravene the Borrower's Organic
Documents, (ii) contravene any contractual restriction, law or
governmental regulation or court decree or order binding on or
affecting the Borrower or (iii) result in, or require the creation
or imposition of, any Lien (other than the Liens created under the
Loan Documents in favor of the Administrative Agent for the
benefit of the Secured Parties) on any of the Borrower's
properties.
SECTION 4.2. Disclosure. In furtherance of, and not in limitation
of, Section 6.13 of the Credit Agreement, (i) all factual information
heretofore or contemporaneously furnished by the Borrower in writing to any
Agent or Lender for purposes of, or in connection with, this Amendment,
taken as a whole, is true and accurate in every material respect and such
information is not incomplete by omitting to state any material fact
necessary to make such information not misleading and (ii) all projections
and estimates contained in the Mine Plans set forth in Annex II hereto have
been prepared in good faith and based on reasonable assumptions; provided
that such report and all such information, projections and estimates are to
be viewed in conjunction with the reports, statements, schedules and
registration statements included in filings made by the Borrower with the
SEC prior to the delivery of such report, information, projections and
estimates, including disclosures made pursuant to the Private Securities
Litigation Reform Act of 1995 to the extent provided to the Secured
Parties.
SECTION 4.3. Compliance with Credit Agreement. Each Obligor is in
compliance in all material respects with all the terms and conditions of
the Credit Agreement and the other Loan Documents to be observed or
performed by it thereunder.
ARTICLE V
MISCELLANEOUS
SECTION 5.1. Full Force and Effect; Amendment. Except as expressly
provided herein, all of the representations, warranties, terms, covenants,
conditions and other provisions of the Credit Agreement and the other Loan
Documents shall remain in full force and effect in accordance with their
respective terms and are in all respects hereby ratified and confirmed. The
amendments set forth herein shall be limited precisely as provided for
herein to the provisions expressly amended hereby and shall not be deemed
to be an amendment to, waiver of, consent to or modification of any other
term or provision of the Credit Agreement, any other Loan Document referred
to therein or herein or of any transaction or further or future action on
the part of the Borrower or any other Obligor which would require the
consent of any of the Lenders under the Credit Agreement or any of the
other Loan Documents.
SECTION 5.2. Loan Document Pursuant to Credit Agreement. This
Amendment is a Loan Document executed pursuant to the Credit Agreement and
shall be construed, administered and applied in accordance with all of the
terms and provisions of the Credit Agreement. Any breach of any
representation, warranty, condition, covenant or agreement contained in
this Amendment shall be deemed to be an Event of Default for all purposes
of the Credit Agreement and the other Loan Documents.
SECTION 5.3. Amendment Fee. Upon the satisfaction of the condition
set forth in clause (ii) of Section 3.1, the Borrower shall pay, without
setoff, deduction or counterclaim, a non-refundable amendment fee for the
account of each Lender that has executed and delivered (including delivery
by way of facsimile) a written consent in the form of Annex III hereto,
authorizing the Administrative Agent to execute this Amendment, to the
attention of Lewis Thompson at Mayer, Brown & Platt, 1675 Broadway, New
York, NY 10019 (19th Floor), telecopy (212) 262-1910, at or prior to 5:00
p.m. New York time, on or before December 5, 2001 (as such time may be
extended by the Borrower), in the amount of thirty (30) basis points of the
sum of such Lender's Revolving Loan Commitment and the outstanding
principal amount of Term Loans payable to it, as of the date hereof. The
aggregate amount of such amendment fee shall be paid at or prior to noon ,
New York time, on December 6, 2001 (or, in the event that the date in the
immediately preceding sentence has been extended, the Business Day that
immediately succeeds such extended date) to the Administrative Agent for
the pro rata account of the Lenders entitled to receive such amendment fee.
SECTION 5.4. Fees and Expenses. The Borrower shall pay all
reasonable out-of-pocket expenses incurred by the Administrative Agent in
connection with the preparation, negotiation, execution and delivery of
this Amendment, including the reasonable fees and disbursements of Mayer,
Brown, and Platt, as counsel for the Administrative Agent.
SECTION 5.5. Headings. The various headings of this Amendment are
inserted for convenience only and shall not affect the meaning or
interpretation of this Amendment or any provisions hereof.
SECTION 5.6. Execution in Counterparts. This Amendment may be
executed by the parties hereto in counterparts, each of which shall be
deemed to be an original and all of which shall constitute together but one
and the same agreement.
SECTION 5.7. Cross-References. References in this Amendment to any
Article or Section are, unless otherwise specified or otherwise required by
the context, to such Article or Section of this Amendment.
SECTION 5.8. Severability. Any provision of this Amendment which
is prohibited or unenforceable in any jurisdiction shall, as to such
provision and such jurisdiction, be ineffective to the extent of such
prohibition or unenforceability without invalidating the remaining
provisions of this Amendment or affecting the validity or enforceability of
such provision in any other jurisdiction.
SECTION 5.9. Successors and Assigns. This Amendment shall be
binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns.
SECTION 5.10. GOVERNING LAW. THIS AMENDMENT SHALL BE DEEMED TO BE
A CONTRACT MADE UNDER AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the parties hereto have caused this Amendment
to be executed by their respective officers thereunto duly authorized as of
the day and year first above written.
STILLWATER MINING COMPANY
By /s/ James A. Sabala
-----------------------------
Name: James A. Sabala
Title: Vice President and
Chief Financial Officer
TORONTO DOMINION (TEXAS), INC.,
as Administrative Agent
By /s/ Lynn Chasin
-----------------------------
Name: Lynn Chasin
Title: Vice President
Exhibit 10.2
WAIVER, CONSENT AND AMENDMENT NO. 1 TO CREDIT AGREEMENT
THIS WAIVER, CONSENT AND AMENDMENT NO. 1 TO CREDIT AGREEMENT,
dated as of June 27, 2001 (this "Waiver, Consent and Amendment"), is made
by and among STILLWATER MINING COMPANY, a Delaware corporation (the
"Borrower"), and TORONTO DOMINION (TEXAS), INC., as administrative agent
(in such capacity, the "Administrative Agent"), for the Lenders (such
capitalized term and all other capitalized terms not otherwise defined
herein shall have the meanings provided for in Article I below).
W I T N E S S E T H:
WHEREAS, the Borrower, the Lenders, the Administrative Agent, NM
Rothschild & Sons Limited, as technical agent, Westdeutsche Landesbank
Girozentrale, New York Branch, as documentation agent, and TD Securities
(USA) Inc., as lead arranger, have heretofore entered into that certain
Credit Agreement, dated as of February 23, 2001 (as further amended,
supplemented, amended and restated or otherwise modified, the "Credit
Agreement");
WHEREAS, the Borrower has entered into certain multi-year Supply
Contracts with Ford Motor Company, Mitsubishi Corporation and General
Motors Corporation (the "Initial Material Supply Contracts");
WHEREAS, the Borrower desires to enter into Hedging Agreements
with respect to palladium and platinum which comply with the terms of
Section 7.2.16 of the Credit Agreement and pursuant to which the Borrower
would agree to sell one or both of such commodities to a counterparty (each
such counterparty, a "Hedge Counterparty") at a future date, which sale
would be settled on a financial basis and not require physical delivery of
any commodity (each such Hedging Agreement, a "Forward Financial Hedging
Agreement");
WHEREAS, the entry by the Borrower into a Forward Financial
Hedging Agreement, when taken together with the minimum sales price per
ounce of palladium and/or platinum set forth in the Initial Material Supply
Contracts (the "Floor Price"), may result in certain adverse accounting
consequences to the Borrower;
WHEREAS, the Borrower desires to establish a direct Wholly Owned
Subsidiary ("Newco"), to which it will transfer its precious metals
smelter, its base metals refinery and certain related assets located in
Columbus, Montana (other than mining or millsite claims) (such transfer,
together with the establishment of such Subsidiary, being referred to
herein as the "Transfer");
WHEREAS, the Borrower desires to confirm the operation of clauses
(e) and (h) of Section 7.2.2 of the Credit Agreement by clarifying clause
(e) of such Section 7.2.2;
WHEREAS, the Borrower desires to have the Lenders consent to (i)
the deletion of the Floor Prices with respect to palladium and/or platinum
under the Initial Material Supply Contracts in certain circumstances, (ii)
the Transfer and (iii) a clarifying amendment to clause (e) of Section
7.2.2 of the Credit Agreement; and
WHEREAS, the Required Lenders are willing, on and subject to the
terms and conditions set forth below (including, but not limited to, the
execution and delivery by Newco of a Subsidiary Guaranty, a Subsidiary
Security Agreement and a Mortgage), to consent to such modifications to the
Initial Material Supply Contracts and clause (e) of Section 7.2.2 and to
the Transfer;
NOW, THEREFORE, in consideration of the premises and the mutual
agreements herein contained, the Borrower and the Required Lenders hereby
agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1. Certain Definitions. The following terms (whether or
not underscored) when used in this Waiver, Consent and Amendment shall have
the following meanings (such meanings to be equally applicable to the
singular and plural forms thereof):
"Administrative Agent" is defined in the preamble.
"Borrower" is defined in the preamble.
"Consent Effective Date" is defined in Section 3.1.
"Credit Agreement" is defined in the first recital.
"Forward Financial Hedging Agreement" is defined in the third
recital.
"Floor Price" is defined in the fourth recital.
"Hedge Counterparty" is defined in the third recital.
"Initial Material Supply Contracts" is defined in the second
recital.
"Newco" is defined in the fifth recital.
"Transfer" is defined in the fifth recital.
"Transfer Effective Date" is defined in Section 3.2.
"Waiver, Consent and Amendment" is defined in the preamble.
Section 1.2. Other Definitions. Terms for which meanings are
provided in the Credit Agreement are, unless otherwise defined herein or
the context otherwise requires, used in this Waiver, Consent and Amendment
with such meanings.
ARTICLE II
CONSENT, WAIVER AND AMENDMENT
Section 2.1. Supply Contract Consent. Subject to the satisfaction
of the conditions set forth in this Section 2.1 and in Section 3.1, the
Lenders hereby consent and agree that, to the extent applicable, the
removal of a Floor Price in effect as of the date hereof under an Initial
Material Supply Contract with respect to palladium or platinum (whether
pursuant to an amendment to such Initial Material Supply Contract or a
notice delivered under a previously executed amendment to such Initial
Material Supply Contract) shall not constitute an Event of Default under
Section 8.1.12 of the Credit Agreement; provided that:
(i) substantially concurrent with the effectiveness of
the removal of such Floor Price, a Forward Financial Hedging
Agreement shall have become effective pursuant to which the "sale"
price per ounce of palladium or platinum, as the case may be,
under such Forward Financial Hedging Agreement is higher than the
greater of (A) such Floor Price and (B) $500.00;
(ii) the number of ounces of palladium or platinum, as
the case may be, subject to such Forward Financial Hedging
Agreement is not less than the number of ounces of palladium or
platinum, as the case may be, that are no longer subject to such
Floor Price;
(iii) the removal of such Floor Price shall be effective
only during the calendar year in which the settlement date for
such Forward Financial Hedging Agreement is scheduled to occur;
(iv) after giving effect to such amendment or
modification, at least 50% of the ounces of palladium and at least
50% of the ounces of platinum to be sold pursuant to all of the
Initial Material Supply Contracts during the calendar year in
which the settlement date for such Forward Financial Hedging
Agreement is scheduled to occur shall continue to be subject to a
Floor Price;
(v) at the time of such removal (and at the time of any
extension or renewal of such Forward Financial Hedging Agreement),
the Hedge Counterparty with respect to such Forward Financial
Hedging Agreement shall be
(A) a financial institution (or any Affiliate of
such financial institution which has issued to the
Borrower an unconditional guaranty of payment in respect
of the obligations of such financial institution under
such Forward Financial Hedging Agreement), organized
under the laws of the United States (or any State
thereof) or of the United Kingdom, that has a long-term
senior unsecured debt rating from each of S&P and Moody's
that is equal to or higher than the respective long-term
senior unsecured debt ratings from S&P and Moody's of the
Supply Contract Counterparty party to the Initial
Material Supply Contract being amended or modified, or
(B) a Lender or an Affiliate of a Lender (or any
Affiliate of either which has issued to the Borrower an
unconditional guaranty of payment in respect of the
obligations of such Lender (or its Affiliate) under such
Forward Financial Hedging Agreement), organized under the
laws of the United States (or any State thereof) or of
the United Kingdom, that has a long-term unsecured debt
rating from S&P that is equal to or higher than BBB+ or
from Moody's that is equal to or higher than Baa1; and
(vi) the Administrative Agent shall have received, on the
Business Day preceding the effectiveness of such removal, a
certificate executed by the chief financial or accounting
Authorized Officer of the Borrower (with such supporting detail as
may be reasonably requested by the Administrative Agent)
identifying the Initial Material Supply Contract being amended or
modified (and the terms of such amendment or modification),
identifying the material terms of the related Forward Financial
Hedging Agreement and certifying as to the satisfaction of the
conditions described in the preceding clauses (i), (ii), (iii),
(iv) and (v).
Section 2.2. Waiver. Subject to the satisfaction of the conditions
set forth or referred to in this Section 2.2 and in Section 3.2, the
Lenders hereby waive compliance by the Borrower with the provisions of
Section 7.2.5 and 7.2.11 of the Credit Agreement solely for the purpose of
permitting the Transfer; provided that the Administrative Agent shall have
received all agreements, instruments and documents in respect of the
Transfer prior to their execution and delivery (including, without
limitation, all intercompany agreements between the Borrower and Newco) and
the terms and conditions thereof shall have been found to be satisfactory
in all respects to the Administrative Agent.
Section 2.3. Amendment. Subject to the satisfaction of the
conditions set forth in Section 3.1, clause (e) of Section 7.2.2 of the
Credit Agreement is hereby amended by inserting the following parenthetical
at the end of such clause: "(it being understood and agreed that Permitted
Revenue Bond Indebtedness (which Indebtedness is permitted pursuant to
clause (h) hereof) shall not be deemed to have been incurred under this
clause (e) and shall therefore not be counted against such $15,000,000)".
Section 2.4. Limitation. Sections 2.1 and 2.2 shall be limited
precisely as written and shall not be deemed to constitute a waiver or
consent with respect to any other term, provision or condition of the
Credit Agreement or any other instrument or agreement referred to therein
or relating thereto or prejudice any right or remedy that the
Administrative Agent or any Lender may now have or may have in the future
under or in connection with the Credit Agreement or any other instrument or
agreement referred to therein or relating thereto.
ARTICLE III
CONDITIONS TO EFFECTIVENESS
Section 3.1. Effectiveness of Consent and Amendment. The consents,
amendments and modifications contained in Sections 2.1 and 2.3 shall be and
shall become effective on the date each of the conditions set forth in this
Section 3.1 are satisfied to the satisfaction of the Administrative Agent
(such date, the "Consent Effective Date").
SECTION 3.1.1. Execution of Counterparts. The Administrative Agent
shall have received counterparts of this Waiver, Consent and Amendment duly
executed and delivered by (i) the Borrower and (ii) the Administrative
Agent on behalf of the Required Lenders that have executed and delivered to
the Administrative Agent their written consent to the consents and
modifications contained herein.
SECTION 3.1.2. Fees and Expenses. The Administrative Agent shall
have received all fees and expenses due and payable pursuant to Section 5.4
(to the extent then invoiced) and pursuant to the Credit Agreement
(including all previously invoiced fees and expenses).
Section 3.2. Effectiveness of Waiver. The waiver and modifications
contained in Section 2.2 shall be and shall become effective on the date
each of the conditions set forth in Sections 3.1.1 and 3.1.2 and in this
Section 3.2 are satisfied to the satisfaction of the Administrative Agent
(such date, the "Transfer Effective Date").
SECTION 3.2.1. Resolutions, etc. The Administrative Agent shall
have received from each of the Borrower and Newco, (i) a copy of a good
standing certificate, as well as certificate(s) of qualification to do
business in each foreign jurisdiction in which such Obligor conducts
material operations, dated a date reasonably close to the Transfer
Effective Date, for each such Person and (ii) a certificate, dated the
Transfer Effective Date and with counterparts for each Lender, duly
executed and delivered by such Person's Secretary or Assistant Secretary,
managing member or general partner, as applicable, as to
(a) resolutions of each such Person's Board of Directors
(or other managing body, in the case of any Person that is not a
corporation) then in full force and effect authorizing, to the
extent relevant, all aspects of the Transfer applicable to such
Person and the execution, delivery and performance of this Waiver,
Consent and Amendment, each other Loan Document to be executed by
such Person and the transactions contemplated hereby and thereby;
(b) the incumbency and signatures of those of its
officers, managing member or general partner, as applicable,
authorized to act with respect to this Waiver, Consent and
Amendment and each other Loan Document to be executed by such
Person; and
(c) the full force and validity of each Organic Document
of such Person and copies thereof;
upon which certificates each Secured Party may conclusively rely until it
shall have received a further certificate of the Secretary, Assistant
Secretary, managing member or general partner, as applicable, of any such
Person canceling or amending the prior certificate of such Person.
SECTION 3.2.2. Transfer Effective Date Certificate. The
Administrative Agent shall have received, with counterparts for each
Lender, a certificate, dated as of the Transfer Effective Date and duly
executed and delivered by an Authorized Officer of the Borrower (the
"Transfer Effective Date Certificate"), in which certificate the Borrower
shall agree and acknowledge that the statements made therein shall be
deemed to be true and correct representations and warranties of the
Borrower as of such date, and, at the time each such certificate is
delivered, such statements shall in fact be true and correct in each case,
in all material respects. All documents and agreements required to be
appended to the Transfer Effective Date Certificate shall be in form and
substance reasonably satisfactory to the Administrative Agent.
SECTION 3.2.3. Subsidiary Guaranty. The Administrative Agent shall
have received, with counterparts for each Lender, a Subsidiary Guaranty for
the benefit of the Secured Parties, dated as of the Transfer Effective
Date, duly executed and delivered by Newco.
SECTION 3.2.4. Security Agreement. The Administrative Agent shall
have received, with counterparts for each Lender, executed counterparts of
the Subsidiary Security Agreement dated as of the date hereof, duly
executed and delivered by an Authorized Officer of Newco, together with
(a) executed copies of Uniform Commercial Code financing
statements (Form UCC-1), naming Newco as a debtor and the
Administrative Agent, on behalf of the Secured Parties, as the
secured party, or other similar instruments or documents, to be
filed under the Uniform Commercial Code of all jurisdictions as
may be necessary or, in the opinion of the Administrative Agent,
desirable to perfect the security interests of the Administrative
Agent pursuant to such Security Agreement;
(b) the applicable Perfection Certificate (as defined in
such Security Agreement);
(c) executed copies of proper Uniform Commercial Code
Form UCC-3 termination statements, if any, necessary to release
all Liens (except for Permitted Liens) of any Person in any
collateral described in such Security Agreement previously granted
to any Person,
together with such other Uniform Commercial Code Form UCC-3
termination statements as the Administrative Agent may reasonably
request from Newco;
(d) certified copies of Uniform Commercial Code Requests
for Information or Copies (Form UCC-11), or a similar search
report certified by a party acceptable to the Administrative
Agent, dated a date reasonably near to the Transfer Effective
Date, listing all effective financing statements which name Newco
as the debtor and which are filed in the jurisdictions in which
filings were made pursuant to clause (a) above, together with
copies of such financing statements (none of which shall cover any
collateral described in the Subsidiary Security Agreement except
for Permitted Liens);
(e) (i) all applicable Counterparty Notices required to
be delivered pursuant to Sections 3.6 and 4.10(i) of the
Subsidiary Security Agreement and Sections 2.10 and 3.3(c) of a
Mortgage (to the extent such notices may be obtained by the
Borrower with the exercise of its commercially reasonable efforts)
and (ii) all landlord lien notices with respect to each lessor of
premises leased to Newco after the date hereof with respect to the
assets of Newco located on such premises;
(f) certificates evidencing all of the issued and
outstanding shares of Capital Stock of Newco (which shares shall
be owned in their entirety by the Borrower), which certificates
shall be accompanied by undated stock powers duly executed in
blank; and
(g) all Pledged Notes (as defined in the Subsidiary
Security Agreement), if any, evidencing Indebtedness payable to
the Borrower duly endorsed to the order of the Administrative
Agent, together with Uniform Commercial Code Financing Statements
(or similar instruments) in respect of such Pledged Notes executed
by the Borrower to be filed in such jurisdictions as the
Administrative Agent may reasonably request.
The Administrative Agent and its counsel shall be satisfied that (i) the
Lien granted to the Administrative Agent, for the benefit of the Secured
Parties in the collateral described above is a first priority (or local
equivalent thereof) security interest; and (ii) no Lien exists on any of
the collateral described above other than Permitted Liens and the Lien
created in favor of the Administrative Agent, for the benefit of the
Secured Parties, pursuant to a Loan Document.
SECTION 3.2.5. Patent Security Agreement, Copyright Security
Agreement and Trademark Security Agreement. The Administrative Agent shall
have received the Patent Security Agreement, the Copyright Security
Agreement and the Trademark Security Agreement, as applicable, each dated
as of the Transfer Effective Date, duly executed and delivered by Newco.
SECTION 3.2.6. Mortgage. The Administrative Agent shall have
received counterparts of a Mortgage, dated as of the Transfer Effective
Date, duly executed by Newco, together with
(a) evidence of the completion (or satisfactory
arrangements for the completion) of all recordings and filings of
such Mortgage as may be necessary or, in the reasonable opinion of
the Administrative Agent, desirable to create a valid, perfected
first priority Lien against the properties purported to be covered
thereby;
(b) (i) mortgagee's title insurance policies with respect
to property purported to be covered by such Mortgage (except
patented and unpatented mining and millsite claims) in favor of
the Administrative Agent for the benefit of the Secured Parties in
amounts and in form and substance and issued by insurers
reasonably satisfactory to the Administrative Agent, addressed to
the Administrative Agent and the Lenders, insuring that title to
such property is marketable and that the interests created by such
Mortgage constitute valid, perfected first priority Liens thereon
free and clear of all defects and encumbrances other than as
approved by the Administrative Agent, and such policies shall also
include a survey reading, and, if required by the Administrative
Agent and if available, revolving credit endorsement,
comprehensive endorsement, variable rate endorsement, access and
utilities endorsements, mechanic's lien endorsement and such other
endorsements as the Administrative Agent shall reasonably request
and shall be accompanied by evidence of the payment in full of all
premiums thereon;
(c) U.C.C. financing statements related to the security
interests created by such Mortgage, together with evidence of the
completion (or satisfactory arrangements for the completion) of
all recordings and filings of such financing statements in the
appropriate offices and records as may be necessary or, in the
reasonable opinion of the Administrative Agent, desirable to
create valid, perfected first priority Liens against the
improvements purported to be covered thereby; and
(d) such other approvals, opinions or documents as the
Administrative Agent may reasonably request, including a current
survey of each property purported to be covered by a Mortgage in
form and substance satisfactory to the Administrative Agent and
the title insurer.
SECTION 3.2.7. Insurance. The Administrative Agent shall have
received a certificate from the Borrower's insurance broker, Hobbs Group,
LLC, certifying that all insurance required pursuant to the Credit
Agreement and the other Loan Documents to be maintained by or for the
benefit of Newco is in full force and effect with no default by the
Borrower, is (to the knowledge of such broker) fully paid and is not
subject to cancellation without prior written notice to the Administrative
Agent.
SECTION 3.2.8. Waiver, Consent and Amendments. To the extent
requested by the Administrative Agent, the Administrative Agent shall have
received copies of governmental and third party authorizations, approvals,
permits or consents described in clause (g) of Section 4.1.
SECTION 3.2.9. Opinions of Counsel. The Administrative Agent shall
have received opinions, dated the Transfer Effective Date and addressed to
the Administrative Agent and all Lenders, from
(a) Brobeck, Phleger & Harrison LLP, counsel to the
Obligors, in form and substance satisfactory to the Administrative
Agent; and
(b) Holland & Hart, Montana counsel to the Obligors, in
form and substance satisfactory to the Administrative Agent.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
Section 4.1. Representations and Warranties. In order to induce
the requisite Lenders and the Agents to enter into this Waiver, Consent and
Amendment, the Borrower hereby represents and warrants to the Agents,
Issuer and each Lender, as of the date hereof, as follows:
(a) the representations and warranties set forth in
Article VI of the Credit Agreement (excluding, however, those
contained in Section 6.7 of the Credit Agreement) and in each
other Loan Document are, in each case, true and correct (unless
stated to relate solely to an earlier date, in which case such
representations and warranties are true and correct as of such
earlier date);
(b) there is no pending or, to the knowledge of the
Borrower or its Subsidiaries, threatened litigation, action,
proceeding or labor controversy, except as disclosed in Item 6.7
of the Disclosure Schedule, affecting the Borrower, any of its
Subsidiaries or any other Obligor, or any of their respective
properties, businesses, assets or revenues, which could reasonably
be expected to have a Material Adverse Effect, and no development
has occurred in any labor controversy, litigation, arbitration or
governmental investigation or proceeding disclosed in Item 6.7
which could reasonably be expected to have a Material Adverse
Effect;
(c) there is no pending or, to the knowledge of the
Borrower or its Subsidiaries, threatened litigation, action,
proceeding or labor controversy which purports to affect the
legality, validity or enforceability of the Credit Agreement, any
other Loan Document or the Transfer;
(d) no Default has occurred and is continuing, and
neither the Borrower nor any of its Subsidiaries nor any other
Obligor is in material violation of any law or governmental
regulation or court order or decree;
(e) this Waiver, Consent and Amendment has been duly
authorized, executed and delivered by the Borrower and constitutes
a legal, valid and binding obligation of the Borrower, enforceable
against it in accordance with its terms, except to the extent the
enforceability hereof may be limited by (i) the effect of
bankruptcy, insolvency, reorganization, moratorium or other
similar laws now or hereafter in effect relating to or affecting
the rights and remedies of creditors generally and (ii) the effect
of general principles of equity, whether enforcement is considered
in a proceeding in equity or at law;
(f) the execution, delivery and performance by the
Borrower and its Subsidiaries of this Waiver, Consent and
Amendment and each other Loan Document executed or to be executed
by any of them in connection therewith and the consummation of the
transactions permitted or contemplated hereby are within the
Borrower's and each such Subsidiary's corporate powers, have been
duly authorized by all necessary corporate action, and do not (i)
contravene the Borrower's or such Subsidiary's Organic Documents,
(ii) contravene any contractual restriction, law or governmental
regulation or court decree or order binding on or affecting the
Borrower or such Subsidiary or (iii) result in, or require the
creation or imposition of, any Lien (other than the Liens created
under the Loan Documents in favor of the Administrative Agent for
the benefit of the Secured Parties) on any of the Borrower's or
such Subsidiary's properties; and
(g) Each of the Borrower and Newco has received or has
the benefit of all governmental and third party authorizations,
approvals, licenses, permits or consents (including those related
to environmental matters) which are necessary or advisable: (i)
for the execution, delivery and performance by Newco of the Loan
Documents described in Sections 3.2.3, 3.2.4, 3.2.5 and 3.2.6;
(ii) in order to effect the Transfer; and (iii) in order to
continue operations of the Borrower and its Subsidiaries. All such
authorizations, approvals, licenses, permits and consents have
been duly issued to and held by the Borrower or Newco, as
applicable, and are in valid and good standing and in full force
and effect, free of any material violation thereof, and all
applicable waiting periods have expired without any action being
taken or threatened by any competent authority which would
restrain, prevent or otherwise impose adverse conditions on the
Transfer or the operations of the Borrower and its Subsidiaries.
Section 4.2. Full Disclosure. Except as corrected by written
information delivered to the Agents and the Lenders reasonably prior to the
date on which this representation is made, all factual information
heretofore or contemporaneously furnished by the Borrower in writing to any
Agent, the Issuer or any Lender for purposes of or in connection with this
Waiver, Consent and Amendment or any transaction contemplated hereby is
true and accurate in every material respect and such information is not
incomplete by omitting to state any material fact necessary to make such
information not misleading.
Section 4.3. Compliance with Credit Agreement. Each Obligor is in
compliance with all the terms and conditions of the Credit Agreement and
the other Loan Documents to be observed or performed by it thereunder, and
no Default has occurred and is continuing.
ARTICLE V
MISCELLANEOUS
Section 5.1. Full Force and Effect; Limited Waiver, Consent and
Amendment. Except as expressly provided herein, all of the representations,
warranties, terms, covenants, conditions and other provisions of the Credit
Agreement and the other Loan Documents shall remain in full force and
effect in accordance with their respective terms and are in all respects
hereby ratified and confirmed. The waivers, consents and amendments set
forth herein shall be limited precisely as provided for herein to the
provisions expressly amended, waived or consented to hereby and shall not
be deemed to be an amendment to, waiver of, consent to or modification of
any other term or provision of the Credit Agreement, any other Loan
Document referred to therein or herein or of any transaction or further or
future action on the part of the Borrower or any other Obligor which would
require the consent of any of the Lenders under the Credit Agreement or any
of the other Loan Documents.
Section 5.2. Loan Document Pursuant to Credit Agreement. This
Waiver, Consent and Amendment is a Loan Document executed pursuant to the
Credit Agreement and shall be construed, administered and applied in
accordance with all of the terms and provisions of the Credit Agreement
(and, following the date hereof, the Credit Agreement). Any breach of any
representation, warranty, condition, covenant or agreement contained in
this Waiver, Consent and Amendment or any certificate delivered by or on
behalf of the Borrower in connection with this Waiver, Consent and
Amendment or any transaction contemplated by this Waiver, Consent and
Amendment shall be deemed to be an Event of Default for all purposes of the
Credit Agreement and the other Loan Documents.
Section 5.3. Further Assurances. The Borrower hereby agrees that
it will take any action that from time to time may be reasonably necessary
to effectuate the consents contemplated herein. The Lenders authorize the
Administrative Agent to execute and deliver such documents as may be
reasonably necessary to effectuate the waivers, consents and modifications
contemplated herein.
Section 5.4. Fees and Expenses. The Borrower shall pay all
reasonable out-of-pocket expenses incurred by the Administrative Agent in
connection with the preparation, negotiation, execution and delivery of
this Waiver, Consent and Amendment and the documents and transactions
contemplated hereby, including the reasonable fees and disbursements of
Mayer, Brown, and Platt, as counsel for the Administrative Agent.
Section 5.5. Headings. The various headings of this Waiver,
Consent and Amendment are inserted for convenience only and shall not
affect the meaning or interpretation of this Waiver, Consent and Amendment
or any provisions hereof.
Section 5.6. Execution in Counterparts. This Waiver, Consent and
Amendment may be executed by the parties hereto in counterparts, each of
which shall be deemed to be an original and all of which shall constitute
together but one and the same agreement.
Section 5.7. Cross-References. References in this Waiver, Consent
and Amendment to any Article or Section are, unless otherwise specified or
otherwise required by the context, to such Article or Section of this
Waiver, Consent and Amendment.
Section 5.8. Severability. Any provision of this Waiver, Consent
and Amendment which is prohibited or unenforceable in any jurisdiction
shall, as to such provision and such jurisdiction, be ineffective to the
extent of such prohibition or unenforceability without invalidating the
remaining provisions of this Waiver, Consent and Amendment or affecting the
validity or enforceability of such provision in any other jurisdiction.
Section 5.9. Successors and Assigns. This Waiver, Consent and
Amendment shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and assigns.
Section 5.10. GOVERNING LAW. THIS WAIVER, AND AMENDMENT SHALL BE
DEEMED TO BE A CONTRACT MADE UNDER AND GOVERNED BY THE LAWS OF THE STATE OF
NEW YORK.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the parties hereto have caused this Waiver,
Consent and Amendment to be executed by their respective officers thereunto
duly authorized as of the day and year first above written.
STILLWATER MINING COMPANY
By /s/ James A. Sabala
------------------------------
Name: James A. Sabala
Title: Vice President and
Chief Financial Officer
TORONTO DOMINION (TEXAS), INC.,
as Administrative Agent
By /s/ Lynn Chasin
------------------------------
Name: Lynn Chasin
Title: Vice President