Exhibit 10.1
AMENDMENT NO. 1 TO CREDIT AGREEMENT
THIS AMENDMENT NO. 1 TO CREDIT AGREEMENT, dated as of January 31,
2006 (this "Amendment"), is made by and among STILLWATER MINING COMPANY, a
Delaware corporation (the "Borrower"), the New Term Lenders (as defined below)
and TORONTO DOMINION (TEXAS) LLC, 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, U.S.
Bank National Association, as documentation agent, and TD Securities (USA) LLC
(formerly known as TD Securities (USA) Inc.), as lead arranger, have
heretofore entered into that certain Credit Agreement, dated as of August 3,
2004 (the "Existing Credit Agreement", and as amended by this Amendment and as
the same may be further amended, supplemented, amended and restated or
otherwise modified from time to time, the "Credit Agreement");
WHEREAS, the Borrower has requested that the Existing Credit
Agreement be amended so as to, among other things, provide for a new tranche
of term loans thereunder (the "New Term Loans"), which term loans would
replace the Term Loans outstanding under the Existing Credit Agreement
immediately prior to the effectiveness of this Amendment (the "Existing Term
Loans") and which, except as modified hereby, would have the same terms as the
Existing Term Loans under the Existing Credit Agreement;
WHEREAS, each Lender holding Existing Term Loans (collectively, the
"Existing Term Lenders") that executes and delivers a signature page to this
Amendment in the form of the "Lender Addendum" attached hereto (a "Lender
Addendum") (collectively, the "Converting Term Lenders") will be deemed (i) to
have agreed to the terms of this Amendment, (ii) to have agreed to convert an
aggregate principal amount of its Existing Term Loans into New Term Loans in a
principal amount equal to the amount notified to such Converting Term Lender
by the Administrative Agent, and (iii) upon the First Amendment Effective Date
to have converted such amount of its Existing Term Loans into New Terms Loans
in an equal principal amount;
WHEREAS, each Existing Term Lender that executes and delivers a
Lender Consent (as defined below) solely in the capacity of an Existing Term
Lender, and not specifically as a Converting Term Lender (collectively, the
"Non-Converting Term Lenders"), will be deemed to have agreed to the terms of
this Amendment but will not be deemed thereby to have agreed to convert its
Existing Term Loans into New Term Loans or to have made any commitment to make
Additional Term Loans;
WHEREAS, each Person (other than a Converting Term Lender in its
capacity as such) that executes and delivers a Lender Addendum (collectively,
the "Additional Term Lenders") will be deemed (i) to have agreed to the terms
of this Amendment and (ii) to have committed to make New Term Loans to the
Borrower on the First Amendment Effective Date (the "Additional Term Loans"),
in the amount notified to such Additional Term Lender by the Administrative
Agent (but in no event greater than the amount such Person committed to make
as Additional Term Loans), and the proceeds of such Additional Term Loans will
be used by the Borrower to repay in full the outstanding principal amount of
the Existing Term Loans that are not converted into New Term Loans by the
Converting Term Lenders;
WHEREAS, the Converting Term Lenders and the Additional Term Lenders
(collectively, the "New Term Lenders") are severally willing to convert their
Existing Term Loans into New Term Loans or to make New Term Loans, as the case
may be, on the terms and subject to the conditions set forth in this
Amendment;
WHEREAS, the Borrower has also requested that certain other
amendments be made to the Existing Credit Agreement, as set forth in Article
II herein;
WHEREAS, the Required Lenders are willing, on the terms and subject
to the conditions set forth below, to consent to such amendments of the
Existing Credit Agreement; and
NOW, THEREFORE, in consideration of the premises and the mutual
agreements herein contained, the Borrower, the New Term Lenders 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):
"Additional Term Lenders" is defined in the fifth recital.
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"Additional Term Loans" is defined in the fifth recital.
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"Administrative Agent" is defined in the preamble.
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"Amendment" is defined in the preamble.
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"Borrower" is defined in the preamble.
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"Converted Term Loan" is defined in Section 3.1.
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"Converting Term Lenders" is defined in the third recital.
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"Credit Agreement" is defined in the first recital.
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"Existing Credit Agreement" is defined in the first recital.
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"Existing Term Lenders" is defined in the third recital.
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"Existing Term Loans" is defined in the second recital.
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"First Amendment Effective Date" is defined in Article IV.
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"Lender Addendum" is defined in the third recital.
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"Lender Consent" means the form of "Lender Consent" attached hereto
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as Annex II.
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"New Term Lenders" is defined in the sixth recital.
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"New Term Loans" is defined in the second recital.
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"Non-Converting Term Lenders" is defined in the fourth recital.
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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 EXISTING CREDIT AGREEMENT; ACKNOWLEDGEMENT
SECTION 2.1. Amendments. Subject to the satisfaction (or waiver) of
the conditions set forth in Article IV, the Existing Credit Agreement is
hereby amended as of the date of this Amendment in accordance with this
Section
SECTION 2.1.1. Amendment to Definition of "Applicable Margin". Clause
(c) of the definition of "Applicable Margin" in Section 1.1 of the Existing
Credit Agreement is hereby amended and restated in its entirety to read as
follows:
"(c) with respect to Term Loans, at all times, 125 basis points
per annum, in the case of Term Loans maintained as Base Rate
Loans, and 225 basis points per annum, in the case of Term Loans
maintained as LIBO Rate Loans."
SECTION 2.1.2. Additional Amendment to Section 1.1 ("Defined Terms")
of the Existing Credit Agreement. Section 1.1 of the Existing Credit Agreement
is hereby amended by inserting in such Section the following definition in the
appropriate alphabetical order:
"`First Amendment Effective Date' means January 31, 2006."
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SECTION 2.1.3. Amendments to Section 3.1.1.
(a) Clause (a) of Section 3.1.1 of the Existing Credit
Agreement is hereby amended by (i) deleting the word "and" at the end
of subclause (ii) therein, (ii) deleting the "." at the end of
subclause (iii) therein and replacing it with "; and" and (iii)
inserting the following clause (iv):
"(iv) any voluntary prepayment of Term Loans made pursuant
to this clause (a) of Section 3.1.1 on or prior to the first
anniversary of the First Amendment Effective Date with the
proceeds of Indebtedness incurred by the Borrower from a
substantially concurrent borrowing of loans provided by one
or more banks, funds or other financial institutions (other
than any such borrowing pursuant to a refinancing of all the
facilities under this Agreement in connection with a
transaction not permitted by this Agreement (prior to giving
effect to any amendment, waiver or other modification of
this Agreement that is effected in connection with such
transaction)) for which the interest rate payable thereon
is, or upon satisfaction of specified conditions could
reasonably be expected to be, less than the interest rate
applicable to Term Loans that are LIBO Rate Loans at the
time of such prepayment shall be subject to the payment of a
premium of 1.0% of the aggregate principal amount of such
prepayment."
(b) Clause (g) of Section 3.1.1 of the Existing Credit
Agreement is hereby amended (i) by deleting the reference to
"September 30, 2004" therein and replacing it with "March 31, 2006"
and (ii) by amending and restating the table in clause (g) of Section
3.1.1 of the Existing Credit Agreement is hereby amended and restated
in its entirety to read as follows:
Amount of Required
Period Principal Repayment
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03/31/06 through (and including) 06/30/10 $277,783.79
the Stated Maturity Date for Term Loans $104,446,699.42
or the then outstanding principal
amount of all Term Loans, if
different.
(c) The last paragraph of Section 3.1.1 of the Credit
Agreement is hereby amended by inserting the following clause at end
of the first sentence thereof:
"; and except that any prepayment of Term Loans made
pursuant to clause (e) of Section 3.1.1 on or prior to the
first anniversary of the First Amendment Effective Date with
the proceeds of Indebtedness incurred by the Borrower from a
substantially concurrent borrowing of loans provided by one
or more banks, funds or other financial institutions (other
than any such borrowing pursuant to a refinancing of all the
facilities under this Agreement in connection with a
transaction not permitted by this Agreement (prior to giving
effect to any amendment, waiver or other modification of
this Agreement that is effected in connection with such
transaction)) for which the interest rate payable thereon
is, or upon satisfaction of specified conditions could
reasonably be expected to be, less than the interest rate
applicable to Term Loans that are LIBO Rate Loans at the
time of such prepayment shall be subject to the payment of a
premium of 1.0% of the aggregate principal amount of such
prepayment."
SECTION 2.1.4. Amendment to Section 7.1.15. Section 7.1.15 of the
Existing Credit Agreement is hereby amended by deleting the reference to
"4.5%" therein and replacing it with "5.5%".
SECTION 2.2. Acknowledgement. On and after the First Amendment
Effective Date, each reference in the Credit Agreement or any other Loan
Document to "Term Loans" shall be deemed a reference to the New Term Loans
contemplated hereby. Notwithstanding any provision hereof or any implication
to the contrary, the provisions of the Credit Agreement with respect to
indemnification, reimbursement of costs and expenses, increased costs and
break funding payments shall continue in full force and effect with respect
to, and for the benefit of, each Existing Term Lender prior to the First
Amendment Effective Date in respect of such Lender's Existing Term Loans under
the Credit Agreement prior to the First Amendment Effective Date.
ARTICLE III
CONVERSION OF EXISTING TERM LOANS AND ADDITIONAL TERM LOANS
SECTION 3.1. Agreement to Conversion of Existing Term Loans into New
Term Loans. On the terms and subject to the satisfaction (or waiver) of the
conditions set forth in Article IV hereof, each Converting Term Lender agrees
that an aggregate principal amount of its Existing Term Loans equal to the
amount notified to such Converting Term Lender by the Administrative Agent
will be converted into New Term Loans (the "Converted Term Loans") as of the
First Amendment Effective Date.
SECTION 3.2. Agreement to Make Additional Term Loans. On the terms
and subject to the satisfaction (or waiver) of the conditions set forth in
Article IV hereof, each Additional Term Lender agrees to make Additional Term
Loans equal to the amount notified to such Additional Term Lender by the
Administrative Agent (but in no event greater than the amount such Person
committed to make as Additional Term Loans) on the First Amendment Effective
Date and shall be a "Lender" under the Credit Agreement as of such date.
SECTION 3.3. Other Provisions. On the First Amendment Effective Date,
the Borrower shall apply the proceeds of the Additional Term Loans (if any),
together with available cash, to (i) prepay in full all Existing Term Loans,
other than Converted Term Loans, (ii) pay all accrued and unpaid interest on
the aggregate principal amount of the Existing Term Loans being so prepaid,
(iii) pay to each Existing Term Lender all amounts payable pursuant to Section
4.4 of the Credit Agreement as a result of the prepayment of such Lender's
Existing Term Loans (treating Converted Term Loans as having been prepaid for
purposes of such Section) and (iv) pay to all Non-Converting Term Lenders all
indemnities, cost reimbursements and other Obligations then owed to the
Non-Converting Term Lenders under the Credit Agreement. The repayment of the
Existing Term Loans contemplated hereby constitutes a voluntary prepayment by
the Borrower pursuant to Section 3.1.1 of the Credit Agreement. Upon the First
Amendment Effective Date, each Existing Term Lender will be deemed to have
waived any prior notice of such prepayment otherwise required pursuant to the
Credit Agreement. The commitments of the Additional Term Lenders and the
conversion undertakings of the Converting Term Lenders are several and no such
New Term Lender will be responsible for any other New Term Lender's failure to
make or acquire by conversion New Term Loans. Notwithstanding anything herein
or in the Credit Agreement to the contrary, the aggregate principal amount of
the New Term Loans will not exceed the aggregate principal amount of the
Existing Term Loans outstanding immediately prior to the First Amendment
Effective Date. Each of the parties hereto acknowledges and agrees that the
terms of this Amendment do not constitute a novation but, rather, an amendment
of the terms of a pre-existing Indebtedness and related agreement, as
evidenced by the Existing Credit Agreement.
ARTICLE IV
CONDITIONS TO EFFECTIVENESS
The amendments contained in Section 2.1, the acknowledgement
contained in Section 2.2, and the agreements contained in Section 3.1 shall be
effective on the date the Administrative Agent has confirmed the satisfaction
or waiver of each of the conditions contained in this Article IV (the "First
Amendment Effective Date").
SECTION 4.1. Execution of Counterparts. The Administrative Agent
shall have received counterparts of (a) 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 agreement or consent to the amendments contained herein
(whether pursuant to the execution and delivery of a Lender Addendum or a
Lender Consent) and (b) Lender Addendums executed by each New Term Lender such
that, upon such execution by all New Term Lenders, the aggregate principal
amount of the Converted Loans and the Additional Term Loans is equal to the
aggregate principal amount of the Existing Term Loans outstanding immediately
prior to the effectiveness of the amendments, acknowledgement and agreements
contained herein.
SECTION 4.2. Resolutions, etc. The Administrative Agent shall have
received from the Borrower (a) a copy of a good standing certificate, as well
as certificate(s) of qualification to do business in each foreign jurisdiction
in which the Borrower conducts material operations, dated a date reasonably
close to the First Amendment Effective Date and (b) a certificate, dated the
First Amendment Effective Date, duly executed and delivered by the Borrower's
Secretary or Assistant Secretary as to resolutions of the Borrower's Board of
Directors then in full force and effect authorizing the execution, delivery
and performance of this Amendment and the transactions contemplated hereby, in
each case in form and substance reasonably satisfactory to the Administrative
Agent.
SECTION 4.3. First Amendment Effective Date Certificate. The
Administrative Agent shall have received, with counterparts for each Lender, a
certificate in the form of Annex I hereto, dated as of the First Amendment
Effective Date and duly executed and delivered by an Authorized Officer of the
Borrower, 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.
SECTION 4.4. Delivery of Notes. The Administrative Agent shall have
received for the account of each New Term Lender that has requested a Term
Note, such New Term Lender's Term Note duly executed and delivered by an
Authorized Officer of the Borrower.
SECTION 4.5. Amendment Fee. The Administrative Agent shall have
received all fees due and payable in connection with this Amendment, as
previously agreed to between the Borrower and the Administrative Agent.
SECTION 4.6. Fees and Expenses. The Administrative Agent shall have
received all fees and expenses due and payable pursuant to Section 6.3 (to the
extent then invoiced) and pursuant to the Credit Agreement (including all
previously invoiced fees and expenses).
SECTION 4.7. Opinions of Counsel. The Administrative Agent shall have
received opinions, dated as of the First Amendment Effective Date and
addressed to the Administrative Agent and all Lenders from (a) Skadden, Arps,
Slate, Meagher & Flom LLP, counsel to the Borrower, and (b) Holland & Hart,
Montana counsel to the Borrower, in each case, in form and substance
reasonably satisfactory to the Administrative Agent.
SECTION 4.8. Further Assurances. The Administrative Agent shall have
received all agreements, consents, approvals, instruments, certificates,
opinions and documents that it may reasonably request to assure itself that
the Lien of the Administrative Agent, for the benefit of the Secured Parties,
is perfected and is of first priority in all relevant jurisdictions.
SECTION 4.9. Application of Proceeds. The Borrower shall have
applied, concurrently with the conversion of the Existing Term Loans into
Converted Term Loans and the making of the Additional Term Loans, the proceeds
of the New Term Loans, together with available cash balances, to (i) prepay in
full all Existing Term Loans, other than Converted Term Loans, (ii) pay all
accrued and unpaid interest on the aggregate principal amount of the Existing
Term Loans being so prepaid, (iii) pay to each Existing Term Lender all
amounts payable pursuant to Section 4.4 of the Credit Agreement as a result of
the prepayment of such Lender's Existing Term Loans (treating Converted Term
Loans as having been prepaid for purposes of such Section) and (iv) pay to all
Non-Converting Term Lenders all indemnities, cost reimbursements and other
Obligations then owed to such Non-Converting Term Lenders under the Credit
Agreement.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
SECTION 5.1. Representations and Warranties. In order to induce the
New Term Lenders, 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 in all material respects (unless
stated to relate solely to an earlier date, in which case such
representations and warranties are true and correct in all material
respects 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 this Amendment, the Credit Agreement or any other
Loan Document;
(d) no Default has occurred and is continuing;
(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 5.2. Disclosure. In furtherance of, and not in limitation of,
Section 6.13 of the Credit Agreement, 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.
SECTION 5.3. Non-Impairment, etc. After giving effect to this
Amendment, neither the modification of the Existing Credit Agreement or any
other Loan Document effected pursuant to this Amendment nor the execution,
delivery, performance or effectiveness of this Amendment or any other Loan
Document impairs the validity, effectiveness or priority of the Liens granted
pursuant to the Security Agreements (as in effect immediately prior to the
First Amendment Effective Date, the "Existing Security Documents"), and such
Liens continue unimpaired with the same priority to secure repayment of all
Obligations, whether heretofore or hereafter incurred. Neither the
modification of the Existing Credit Agreement nor the execution, delivery,
performance or effectiveness of this Amendment requires that any new filings
be made or other action taken to perfect or to maintain the perfection of such
Liens. Under the foregoing circumstances, the position of the Lenders with
respect to such Liens, the Collateral (as defined in the Existing Security
Documents) in which a security interest was granted pursuant to the Existing
Security Documents, and the ability of the Administrative Agent to realize
upon such Liens pursuant to the terms of the Security Agreements have not been
adversely affected in any material respect by the modification of the Existing
Credit Agreement effected pursuant to this Amendment or by the execution,
delivery, performance or effectiveness of this Amendment.
ARTICLE VI
MISCELLANEOUS
SECTION 6.1. 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 6.2. 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, including, without limitation,
the provisions relating to forum selection, consent to jurisdiction and waiver
of jury trial included in Sections 10.14 and 10.15 of the Credit Agreement,
which provisions are hereby acknowledged and confirmed by each of the parties
hereto. 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 6.3. 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
LLP, as counsel for the Administrative Agent.
SECTION 6.4. 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 6.5. 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 6.6. 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 6.7. 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 6.8. 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 6.9. 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/ John R. Stark
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Name: John R. Stark
Title: Vice President
TORONTO DOMINION (TEXAS) LLC,
as Administrative Agent
By /s/ Jim Bridwell
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Name: Jim Bridwell
Title: Authorized Signatory