Exhibit 10.1
AMENDMENT NO. 2 AND WAIVER TO CREDIT AGREEMENT
THIS AMENDMENT NO. 2 AND WAIVER TO
CREDIT AGREEMENT, dated as of November 5, 2007 (this
“Amendment”), is made by and among STILLWATER MINING
COMPANY, a Delaware corporation (the “Borrower”), 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 (as amended, supplemented or otherwise modified
prior to the date hereof, 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, as of the date hereof, the
Borrower is not in compliance with Section 7.2.16(a) of the
Existing Credit Agreement and Section 7.1.1(d) of the Existing
Credit Agreement insofar as such Section relates to the giving of a
notice with respect to such failure to comply with Section
7.2.16(a) (collectively, the “Existing Events of
Default”) and the Borrower has requested that the Lenders
waive the Existing Events of Default;
WHEREAS, each Lender that executes
and delivers a signature page to this Amendment in the form of the
“Lender Consent” attached hereto (a “ Lender
Consent ”) will be deemed to have agreed to the terms of
this Amendment;
WHEREAS, the Borrower has also
requested that certain 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 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.
“Borrower” is defined in
the preamble.
“Credit Agreement” is
defined in the first recital.
“Existing Credit
Agreement” is defined in the first recital.
“Existing Events of
Default” is defined in the second recital.
“Lender Consent” is
defined in the third recital.
“Second Amendment Effective
Date” is defined in Article IV.
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
WAIVER OF EXISTING EVENTS OF DEFAULT
SECTION 2.1. Waiver. Subject to the
satisfaction (or waiver) of the conditions set forth in
Article IV, the Lenders hereby waive the Existing Events of
Default.
ARTICLE III
AMENDMENTS TO EXISTING CREDIT AGREEMENT
SECTION 3.1. 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 3.1.
SECTION 3.1.1. Amendments to
Definition of “Debt”. The definition of
“Debt” in Section 1.1 of the Existing Credit
Agreement is hereby amended by adding the phrase “(calculated
without duplication)” immediately following the phrase
“... of the definition of Indebtedness”, and by adding
the phrase “(calculated without duplication)”
immediately following the phrase “... the aggregate face
amount”.
SECTION 3.1.2. Amendment to
Definition of “Applicable Margin”. The definition of
“Applicable Margin” in Section 1.1 of the Existing
Credit Agreement is hereby amended as follows:
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(a) |
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The table in clause (b) thereof shall be amended by
changing the reference to “>2.00:1 and <2.50:1”
with a reference to “<2.50:1” and by deleting the
final row in such table. |
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(b) |
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Clause (c) thereof shall be amended and restated in its
entirety to read as follows: |
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“(c) |
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with respect to Term Loans, at all times, 150 basis points per
annum, in the case of Term Loans maintained as Base Rate Loans, and
250 basis points per annum, in the case of Term Loans maintained as
LIBO Rate Loans.” |
SECTION 3.1.3. Amendments to
Section 7.2.7.
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(a) |
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The table in Section 7.2.7 of the Existing Credit
Agreement is hereby amended and restated to read as follows: |
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Capital |
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Expenditure Amount |
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Fiscal Year |
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(in millions) |
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2004
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$ |
90.0 |
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2005
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$ |
110.0 |
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2006
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$ |
95.0 |
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2007
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$ |
95.0 |
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2008
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$ |
95.0 |
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2009
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$ |
95.0 |
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(b) |
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Section 7.2.7 is hereby further amended by deleting the
word “and” at the end of clause (i) of the proviso
thereto, by replacing the period at the end of clause (ii)(C)
thereof with “; and” and by inserting the following new
clause (iii) at the end thereof: |
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“(iii) in addition to Capital Expenditures made pursuant
to the foregoing, the Borrower may make or commit to make, or may
permit one or more of its Subsidiaries to make or commit to make,
at any time, additional Capital Expenditures not exceeding
$25,000,000 in the aggregate solely for the purpose of the
construction of a second smelting furnace at the Borrower’s
processing facility located in Columbus, Montana.” |
SECTION 3.1.4. Amendments to
Section 7.2.16. Clause (a) of Section 7.2.16 of the
Existing Credit Agreement is hereby amended and restated to read as
follows:
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“(a) |
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any agreement or arrangement pursuant to which it and such
Subsidiaries are required to sell and physically deliver in any
calendar year: |
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(i) |
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palladium in an aggregate amount equal to more than the sum of
the following: |
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(x) |
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100% of the Borrower’s Annual Palladium Production for
such calendar year, plus |
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(y) |
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any palladium acquired during such calendar year under any
Norilsk Metal Agreement, plus |
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(z) |
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an amount of palladium acquired from Persons other than the
Borrower and its Affiliates or generated by the Borrower’s
recycling activities, up to a maximum amount for any calendar year
not to exceed 20% of the Borrower’s Annual Palladium
Production for such calendar year; or |
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(ii) |
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platinum in an aggregate amount equal to more than 100% of the
Borrower’s Annual Platinum Production, or”. |
ARTICLE IV
CONDITIONS TO EFFECTIVENESS
The waiver contained in
Section 2.1 and the amendments contained in Section 3.1
shal
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