exv10w1



 





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:




	 	  (a)	 	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.
	 
	 	  (b)	 	Clause (c) thereof shall be amended and restated in its entirety to read as
follows:
	 
	 	“(c)	 	 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.




	 	(a)	 	The table in Section 7.2.7 of the Existing Credit Agreement is hereby amended and
restated to read as follows:





	 	 	 	 	 	 	 	 
	 
	 	 	 	 	Capital	 
	 	 	 	 	Expenditure Amount	 
	 	Fiscal Year	 	 	(in millions)	 
	 	2004

	 	 	$	90.0	 	 
	 	2005

	 	 	$	110.0	 	 
	 	2006

	 	 	$	95.0	 	 
	 	2007

	 	 	$	95.0	 	 
	 	2008

	 	 	$	95.0	 	 
	 	2009

	 	 	$	95.0	 	 
	 






	 	(b)	 	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:
	 
	 	 	 	“(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:




	 	“(a)	 	any agreement or arrangement pursuant to which it and such Subsidiaries are
required to sell and physically deliver in any calendar year:
	 
	 	  (i)	 	palladium in an aggregate amount equal to more than the sum of the following:
	 
	 	  (x)	 	100% of the Borrower’s Annual Palladium Production for such calendar year, plus
	 
	 	  (y)	 	any palladium acquired during such calendar year under any Norilsk Metal
Agreement, plus
	 
	 	  (z)	 	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
	 
	 	  (ii)	 	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 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 “Second 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
pursuant to the execution and delivery of a Lender Consent.



     SECTION 4.2. Amendment Fee. The Administrative Agent shall have received all fees due and
payable in connection with this Amendment pursuant to Section 6.3.



     SECTION 4.3. Fees and Expenses. The Administrative Agent shall have received all fees and
expenses due and payable pursuant to Section 6.4 (to the extent then invoiced) and pursuant to
the Credit Agreement (including all previously invoiced fees and expenses).



 









 





ARTICLE V



REPRESENTATIONS AND WARRANTIES




     SECTION 5.1. 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 Administrative Agent, 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)	 	except for the Existing Events of Default, 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 Second 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 waivers and
amendments set forth herein shall be limited precisely as provided for herein to the provisions
expressly waived and 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. Amendment Fee. The Borrower shall have paid, without setoff, deduction or
counterclaim, a non-refundable amendment fee in the amount of twelve and a half (12.5) 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, for the account of each Lender that has executed and
delivered (including delivery by way of facsimile) a written Lender Consent, authorizing the
Administrative Agent to execute this Amendment, at or prior to 5:00 p.m. New York time, on or
before November 5, 2007 (as such time may be extended by the Borrower). The aggregate amount of
such amendment fee shall be paid at or prior to noon, New York time, on November 6, 2007 (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 6.4. Fees and Expenses. The Borrower shall have paid 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 LLP, as counsel for the Administrative Agent.



     SECTION 6.5. 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 6.6. 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 6.7. 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 6.8. 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 6.9. 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 6.10. 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/  John R. Stark
 	 
	 	 	Name:  	John R. Stark 	 
	 	 	Title:  	Vice President, Human Resources, Secretary and General Counsel 	 
	 



	 	 	 	 	 
	 	TORONTO DOMINION (TEXAS) LLC,

      as Administrative Agent

 	 
	 	By:  	/s/  Ian Murray
 	 
	 	 	Name:  	Ian Murray 	 
	 	 	Title:  	Authorized Signatory