[EXECUTION COPY]
LIMITED WAIVER
THIS LIMITED WAIVER dated as of December 31, 2002 (this "Limited
Waiver") is made by and among STILL WATER 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, Westdeutschce 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, as further amended by Amendment No.
2, dated as of November 30, 2001, as further amended by Waiver, Consent and
Amendment No. 3, dated as of January 28, 2002, and as further amended by
Amendment No. 4, dated as of October 25, 2002, the "Credit Agreement");
WHEREAS, the Borrower has requested the Lenders to grant, on the terms
and subject to the conditions hereof, a limited waiver of (i) the terms of
clause (d)(i) of Section 7.2.4 of the Credit Agreement with respect to the two
consecutive Fiscal Quarters ending on the last day of the fourth Fiscal Quarter
of the 2002 Fiscal Year and (ii) the terms of clause (ii) of Section B.I.14 of
the Credit Agreement with respect to the four-consecutive-Fiscal-Quarter period
ending on the last day of the fourth Fiscal Quarter of the 2002 Fiscal Year; and
WHEREAS, the requisite Lenders are willing, on and subject to the terms
and conditions set forth below, to grant the limited waiver provided below;
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 Limited Waiver 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.
"Borrower" is defined in the preamble.
"Credit Agreement" is defined in the first recital.
"Limited Waiver" is defined in the preamble.
ARTICLE II
LIMITED WAIVER
Subject to the satisfaction of the conditions set forth in Article III,
the Lenders, as of the date hereof, hereby waive
(i) a breach of the provisions of clause (d)(i) of Section
7.2.4 of the Credit Agreement as a result of the Borrower permitting
the Fiscal-Quarter-average of primary and project development with
respect to the Xxx Mine based on the two consecutive Fiscal Quarters
ending on the last day of the fourth Fiscal Quarter of the 2002 Fiscal
Year to be less than 6,800 feet; provided that the Borrower does not
permit the Fiscal-Quarter-average of primary and project development
with respect to the Xxx Mine, measured in feet, based on the two
consecutive Fiscal Quarters ending on the last day of the fourth Fiscal
Quarter of the 2002 Fiscal Year to be less than 6,150 feet; and
(ii) the occurrence of an Event of Default pursuant to the
provisions of clause (ii) of Section 8.1.14 of the Credit Agreement as
a result of the Borrower failing to maintain combined Palladium
Production and Platinum Production of at least 620,000 ounces for the
four-consecutive-Fiscal-Quarter period ending on the last day of the
fourth Fiscal Quarter of the 2002 Fiscal Year; provided that the
Borrower maintains a combined Palladium Production and Platinum
Production, measured in returnable ounces, of at least 612,500 ounces
for the four-consecutive-Fiscal-Quarter period ending on the last day
of the fourth Fiscal Quarter of the 2002 Fiscal Year.
The above limited waiver shall be limited precisely as written and
relates solely to the breach of the provisions of clause (d)(i) of Section 7.2.4
of the Credit Agreement and the occurrence of an Event of Default as a result of
the Borrower failing to comply with the provisions of clause (ii) of Section
8.1.14 of the Credit Agreement, in the manner and to the extent set forth above,
and nothing in this Limited Waiver shall be deemed to constitute a waiver of (i)
a breach of the provisions of clause (d)(i) of Section 7.2.4 of the Credit
Agreement for any two consecutive Fiscal Quarters ending on the last day of any
Fiscal Quarter other than the two consecutive Fiscal Quarters ending on the last
day of the fourth Fiscal Quarter of the 2002 Fiscal Year or (ii) the occurrence
of an Event of Default as a result of the Borrower failing to comply with the
provisions of clause (ii) of Section 8.1.14 of the Credit Agreement for any
four-consecutive-Fiscal-Quarter period other than the
four-consecutive-Fiscal-Quarter period ending on the last day of the fourth
Fiscal Quarter of the 2002 Fiscal Year.
ARTICLE III
CONDITIONS OF EFFECTIVENESS
This Limited Waiver shall be effective on the date first above written,
subject to the satisfaction or waiver of each of the conditions contained in
Article III.
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SECTION 3.1 Execution of Counterparts. The Administrative Agent shall
have received counterparts of this Limited Waiver 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 Administrative Agent their written
consent to the limited waiver contained herein.
SECTION 3.2 Waiver Fee. The Administrative Agent shall have received
the 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).
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 Limited Waiver,
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
then- 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 Limited Waiver 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
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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 Limited Waiver 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. 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
limited waiver set forth herein shall be limited precisely as provided for
herein to the provisions expressly waived hereby and shall not be deemed to be a
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 Limited
Waiver 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 Limited Waiver shall be
deemed to be an Event of Default for all purposes of the Credit Agreement and
the other Loan Documents.
SECTION 5.3 Waiver 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 waiver 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 I hereto, authorizing the Administrative
Agent to execute this Limited Waiver, to the attention of Xxxxxxx Xxxxxxx at
Mayer, Brown, Xxxx & Maw, 0000 Xxxxxxxx, Xxx Xxxx, XX 00000 (00xx Xxxxx),
telecopy (000) 000-0000, at or prior to 5:00 p.m. New York time, on or before
December 30, 2002 (as such time may be extended by the Borrower), in the amount
often (TO) 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 waiver fee shall be paid
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at or prior to noon, New York time, on December 31, 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 waiver fee.
SECTION 5.4 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 Limited Waiver and the
documents and transactions contemplated hereby, including the reasonable fees
and disbursements of Mayer, Brown, Xxxx & Maw, as counsel for the Administrative
Agent.
SECTION 5.5 Headings, The various headings of this Limited Waiver are
inserted for convenience only and shall not affect the meaning or interpretation
of this Limited Waiver or any provisions hereof.
SECTION 5.6 Execution in Counterparts. This Limited Waiver 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 Limited Waiver to any
Article or Section are, unless otherwise specified or otherwise required by the
context, to such Article or Section of this Limited Waiver.
SECTION 5.8 Severability. Any provision of this Limited Waiver 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 Limited
Waiver or affecting the validity or enforceability of such provision in any
other jurisdiction.
SECTION 5.9 Successors and Assigns. This Limited Waiver 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 LIMITED WAIVER 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 Limited Waiver
to be executed by their respective officers thereunto duly authorized as of the
day and year first above written.
STILLWATER MINING COMPANY
By: /s/ X.X. Xxxxxx
---------------------------------
Name: X.X. Xxxxxx
Title: V.P & CFO
TORONTO DOMINION (TEXAS), INC., as
Administrative Agent
By: /s/ Xxxx Xxxxxx
---------------------------------
Name: XXXX XXXXXX
Title: VICE PRESIDENT
