Exhibit 10
WAIVER, CONSENT AND AMENDMENT NO. 3
THIS WAIVER, CONSENT AND AMENDMENT NO. 3 dated as of January
28, 2002 (this "Agreement") 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 and as
further amended by Amendment No. 2 to Credit Agreement, dated as of
November 30, 2001, the "Credit Agreement");
WHEREAS, the Borrower intends to enter into one or more
stock purchase agreements, pursuant to which one or more investors will
agree to acquire certain shares of the Borrower's common stock for an
aggregate amount not to exceed $75,000,000 (collectively, the "Stock
Purchase Agreements");
WHEREAS, the Borrower desires to have the Lenders (i)
consent to the Borrower's execution, delivery and performance of the Stock
Purchase Agreements, and (ii) waive any mandatory prepayment of the Term
Loans triggered by the Stock Purchase Agreements, including the requirement
in clause (c) of Section 3.1.1(c) of the Credit Agreement that the Borrower
make a mandatory prepayment of the Term Loans in an amount equal to 50% of
the Net Equity Proceeds from the stock sale evidenced by the Stock Purchase
Agreements;
WHEREAS, the Borrower desires to amend certain conditions
precedent to the making of Credit Extensions under the revolving credit
facility set forth in the Credit Agreement; and
WHEREAS, the requisite Lenders are willing, on and subject
to the terms and conditions set forth below, (i) to consent to the
Borrower's entry into the Stock Purchase Agreements and to waive any
mandatory prepayment of the Term Loans triggered by the Stock Purchase
Agreements and (ii) amend Section 5.2.3 of the Credit Agreement;
NOW THEREFORE, in consideration of the premises and the
mutual agreement herein contained, the Borrower and the requisite Lenders
hereby agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1 Certain Definitions. The following terms
(whether or not underscored) when used in this Agreement 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.
"Agreement" is defined in the preamble.
"Borrower" is defined in the preamble.
"Credit Agreement" is defined in the first recital.
ARTICLE II
CONSENT AND WAIVER
Section 2.1 Consent. Subject to the satisfaction of the
conditions set forth in this Section 2.1 and in Section 3.1, the Lenders
hereby consent to the Borrower's execution, delivery and performance of the
Stock Purchase Agreements; provided, that the Administrative Agent shall
have received (i) periodic working drafts thereof (as prepared), (ii) no
later than the Business Day preceding the effectiveness of each such Stock
Purchase Agreement, a certificate executed by an Authorized Officer of
Borrower identifying the material terms of each Stock Purchase Agreement
and (iii) on or before the date of effectiveness of each such Stock
Purchase Agreement, a copy of each final executed document.
Section 2.2 Waiver of Mandatory Prepayment. Subject to the
satisfaction of the conditions set forth in Section 3.1, the Lenders hereby
waive compliance by the Borrower with the provisions of clause (c) of
Section 3.1.1 of the Credit Agreement solely in connection with the Stock
Purchase Agreements.
Section 2.3 Amendment to Section 5.2.3. Section 5.2.3 of the
Credit Agreement is hereby amended and restated in its entirety to read as
follows:
SECTION 5.2.3. Officer's and Mining Consultant's
Certificates. (a) [INTENTIONALLY OMITTED].
(b) In the case of a Credit Extension that is the making
of a Revolving Loan or the issuance of (or the 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, the Administrative
Agent and the Technical Agent shall have received with respect to
the Fiscal Quarter most recently ended prior to such requested
Credit Extension:
(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) 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
(ii) a certificate from the Mining Consultant in
the form of Exhibit P hereto certifying that the Mining
Consultant is satisfied with the contents of the
Borrower's officer's certificate delivered pursuant to
the immediately preceding subclause (i);
provided that such certificates shall no longer be required following the
attainment by the Borrower of combined Annual Palladium Production and
Annual Platinum Production of at least 879,000 ounces.
ARTICLE III
CONDITIONS OF EFFECTIVENESS
Section 3.1 Effectiveness. This Agreement 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 3.1.1 Certificate; Execution of Counterparts. The
Administrative Agent shall have received (a) the certificate referenced in
Section 2.1 and (b) counterparts of this Agreement duly executed and
delivered by (i) the Borrower and (ii) the Administrative Agent on behalf
of the Required Lenders and the Lenders holding more than 50% of the sum of
the Revolving Loan Commitment Amount and the aggregate principal amount of
Term A Loans outstanding that have executed and delivered to Administrative
Agent their written consent to the waivers and consents 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 5.3 (to the extent then invoiced) and pursuant to the Credit
Agreement (including all previously invoiced fees and expenses).
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
Agreement, the Borrower hereby represents and warrants to 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 Agreement 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
and its Subsidiaries of this Agreement 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 Administrative Agent for the benefit of the Secured
Parties) on any of the Borrower's properties.
Section 4.2 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; Limited Waiver and
Consent. 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 waiver, consent and amendment 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, 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, 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
Agreement 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 Agreement shall be deemed to be an Event of Default for all purposes
of the Credit Agreement and the other Loan Documents.
Section 5.3 Fees and Expenses. The Borrower shall pay all
reasonable out-of-pocket expenses incurred by Administrative Agent in
connection with the preparation, negotiation, execution and delivery of
this Agreement 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 5.4 Headings. The various headings of this Agreement
are inserted for convenience only and shall not affect the meaning or
interpretation of this Agreement or any provisions hereof.
Section 5.5 Execution in Counterparts. This Agreement 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 5.6 Cross-References. References in this Agreement
to any Article or Section are, unless otherwise specified or otherwise
required by the context, to such Article or Section of this Agreement.
Section 5.7 Severability. Any provision of this Agreement
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 Agreement or affecting the validity or enforceability of
such provision in any other jurisdiction.
Section 5.8 Successors and Assigns. This Agreement shall be
binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns.
Section 5.9 GOVERNING LAW. THIS AGREEMENT SHALL BE DEEMED TO
BE A CONTRACT MADE UNDER AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement 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
TORONTO DOMINION (TEXAS), INC.,
as Administrative Agent
By: /s/ Lynn Chasin
-------------------------------------
Name: Lynn Chasin
Title: Vice President