AMENDMENT NO. 4 TO CREDIT AGREEMENT
THIS AMENDMENT NO. 4 TO CREDIT AGREEMENT, dated as of October 25,
2002 (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
referred to 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 amended by Waiver, Consent and
Amendment No. 1, dated as of June 27, 2001, Amendment No. 2, dated as of
November 30, 2001, and Waiver, Consent and Amendment No. 3, dated as of
January 28, 2002, 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.
"Pincock 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 as of the date of this
Amendment 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
Debt to EBITDA for LIBO Rate Applicable Margin for
Ratio Loans Base Rate Loans
<1.50:1 300.0 bps 200.0 bps
>1.50:1 and <2.0:1 312.5 bps 212.5 bps
>2.0:1 and <2.50:1 325.0 bps 225.0 bps
>2.50:1 337.5 bps 237.5 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 325 basis points, in
the case of Term B Loans maintained as Base Rate Loans, and 425 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 inserting
at the end of clause (d) thereof the following phrase: "and including non-cash
expense in respect of equity instruments (including stock options) issued to
directors, officers and employees of the Borrower and its Subsidiaries".
Section 2.3. Amendment to Section 5.2.3. Subclause (D) of clause (i)
of Section 5.2.3(b) of the Credit Agreement is hereby amended and restated in
its entirety to read as follows:
"(D) (1) for the four-consecutive-Fiscal-Quarter period ending on the
last day of the Fiscal Quarter most recently ended prior to such
request, the Borrower (x) milled not less than 1,380,000 tons of ore
in the aggregate from the Nye Mine and the East Boulder Mine and (y)
maintained a mill grade of not less than .510 ounces per ton with
respect to such production, and (2) for the 90-consecutive-day period
ending on the last day of the month most recently ended prior to such
request, the Borrower maintained combined Palladium and Platinum
Production at a cash cost per returnable ounce not exceeding $270 per
returnable ounce and"
Section 2.4. Amendment to Section 6.3. Clause (ii) of Section 6.3(a)
of the Credit Agreement is hereby amended by (i) deleting the reference
therein to "2500" and substituting therefor "2800" and (ii) deleting the
reference therein to "1000" and substituting therefor "1250".
Section 2.5. Amendment to Section 7.2.4. (a) 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 3.00:1.0
January 1, 2003 through (and including) June 30, 2003 3.00:1.0
July 1, 2003 through (and including) December 31, 2003 2.50:1.0
January 1, 2004 and thereafter 2.00:1.00
(b) The table in clause (b) of Section 7.2.4 of the Credit Agreement
is hereby amended and restated to read as follows:
Debt Service
Period Coverage Ratio
Effective Date through (and including) December 31, 2.0:1.0
2002
January 1, 2003 through (and including) December 31, 2.5:1.0
2003
January 1, 2004 and thereafter 3.0:1.0
(c) Section 7.2.4 of the Credit Agreement is further amended by adding the
following new clause (d) thereto:
"(d) (i) The Borrower will not permit the
Fiscal-Quarter-average of primary and project development with
respect to the Nye Mine, measured in feet, based on the two
consecutive Fiscal Quarters ending on the last day of any Fiscal
Quarter set forth below to be less than the number of feet set forth
opposite such Fiscal Quarter:
Fiscal Quarter Feet
The fourth Fiscal Quarter
of the 2002 Fiscal Year 6,800
The first Fiscal Quarter
of the 2003 Fiscal Year 7,300
The second, third and
fourth Fiscal Quarters of the
2003 Fiscal Year 7,950
The first, second and third Fiscal
Quarters of the 2004 Fiscal Year 7,950
The fourth Quarter of the 2004
Fiscal Year and each Fiscal
Quarter thereafter 8,550
(ii) The Borrower will not permit the Fiscal-Quarter-average
of primary and project development with respect to the East Boulder
Mine, measured in feet, based on the two consecutive Fiscal Quarters
ending on the last day of any Fiscal Quarter set forth below to be
less than the number of feet set forth opposite such Fiscal Quarter:
Fiscal Quarter Feet
The fourth Fiscal Quarter
of the 2002 Fiscal Year 2,000
The first Fiscal Quarter of
the 2003 Fiscal Year 2,000
The second and third
Fiscal Quarters of the 2003
Fiscal Year 2,650
The fourth Fiscal Quarter
of the 2003 Fiscal Year 2,050
The first, second and third
Fiscal Quarters of the
2004 Fiscal Year 2,050
The fourth Fiscal Quarter
of the 2004 Fiscal Year 1,700
The first Fiscal Quarter
of the 2005 Fiscal Year 1,700
The second Fiscal Quarter of the
2005 Fiscal Year and each
Fiscal Quarter thereafter 1,950
Section 2.6. Amendments to Section 7.2.7. 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 $67.0
2003 $66.0
2004 $68.0
2005 $80.0
2006 $73.0
2007 $73.0
Section 2.7. 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, 610,000 and 620,000 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, (iii) at least 620,000 ounces
for each of the four-consecutive-Fiscal-Quarter periods ending on
the last day of the first and second Fiscal Quarters of the 2003
Fiscal Year, (iv) at least 645,000 ounces for each of the
four-consecutive-Fiscal-Quarter periods ending on the last day of
the third and fourth Fiscal Quarters of the 2003 Fiscal Year and
(v) at least 660,000 ounces in the 2004 Fiscal Year and in each
Fiscal Year thereafter"
(b) Subclauses (y)(1) and (y)(2) of the proviso to Section
8.1.14 of the Credit Agreement are hereby amended by substituting
"December 31, 2003" for each reference to "December 31, 2002"
therein.
Section 2.8. 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 2.9. 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 "Pincock 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 Mariana Baquero at Mayer, Brown, Rowe & Maw, 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 October 25, 2002 (as such time may be extended by
the Borrower), in the amount of fifty (50) 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 October 28,
2002 (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, Rowe and Maw,
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.
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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/ Jim Bridwell
-----------------------------
Name: Jim Bridwell
Title: Vice President