EXHIBIT 10.26
SECOND AMENDMENT AGREEMENT
TO
PALLADIUM, PLATINUM AND RHODIUM SALES AGREEMENT
THIS SECOND AMENDMENT AGREEMENT (this "Amendment"), is made and entered
into as of November 30, 2001, by and between STILLWATER MINING COMPANY, a
Delaware corporation, whose address is 000 Xxxx Xxxx Xxxxxx, Xxxxxxxx, Xxxxxxx
00000 ("SMC") and MITSUBISHI INTER-NATIONAL CORPORATION, a New York corporation,
whose address is 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000 ("MIC").
SMC and MIC are parties to a Palladium and Platinum Sales Agreement
dated as of August 27, 1998, as amended by the First Amendment Agreement dated
as of April 1, 2001 (the "Agreement"). SMC and MIC desire to make certain
changes to the Agreement.
Accordingly, the parties hereto agree as follows:
SECTION 1 Definitions; Interpretation.
(a) Terms Defined in Agreement. All capitalized terms used in this
Amendment and not otherwise defined herein shall have the meanings assigned to
them in the Agreement.
(b) Interpretation. Headings in this Amendment are for convenience of
reference only and are not part of the substance hereof.
SECTION 2 Amendments to the Agreement.
(a) Amendments. The Agreement shall be amended as follows, effective as
of the Effective Date (as defined below):
(i) The definition of "Destination" in Section 1 of the
Agreement shall be deleted in its entirety, and that term shall no
longer be used as a defined term in the Agreement.
(ii) The opening paragraph of Section 3 shall be amended in
full to read as follows:
"Section 3. Quantity and Delivery. Beginning from
April 1, 2001, on the last Business Day of each Pricing Month,
SMC will cause its refinery, Xxxxxxx Xxxxxxx, Inc. ("JM USA")
either to ship the relevant Metal to Narita Airport, Japan on
behalf of MIC or to release the relevant Metal to the account
of MIC at JM USA. MIC shall notify SMC no later than seven (7)
Business Days prior to the last Business Day of the applicable
Pricing Month whether the Metal is to be shipped to Japan or
released to MIC's account at JM USA as provided for
hereinabove. The Quantity of Metal to be delivered hereunder
shall be determined in accordance with the procedures set
forth in the following subsections (a) through (d) of this
Section 3:"
(iii) Section 7 of the Agreement shall be amended in full to
read as follows:
"Section 7. Risk of Loss; Title. Title and risk of
loss and liability for all Metal delivered hereunder shall
pass to MIC as of (a) the date on which such Metal is shipped
from JM USA to MIC, or to such other recipient as MIC shall
direct SMC in writing, or (b) the date on which such Metal is
released by SMC to the account of MIC at JM USA, in each case
as determined pursuant to Section 3 above. For the avoidance
of doubt, the parties intend that, in either case, such date
shall be the last Business Day of the Pricing Month."
(b) References Within Agreement. Each reference in the Agreement to
"this Agreement" and the words "hereof," "herein," "hereunder," or words of like
import, shall mean and be a reference to the Agreement as amended by this
Amendment.
SECTION 3 Effective Date. This Amendment shall be effective as of the
date first written above (the "Effective Date"), subject to the execution and
delivery of this Amendment by duly authorized representatives of each of SMC and
MIC.
SECTION 4 Miscellaneous.
(a) Agreement Otherwise Not Affected. Except as expressly amended
pursuant hereto, the Agreement shall remain unchanged and in full force and
effect and is hereby ratified and confirmed in all respects.
(b) No Reliance. Each party hereto hereby acknowledges and confirms to
the other that such party is executing this Amendment on the basis of its own
2
investigation and for its own reasons without reliance upon any agreement,
representation, understanding or communication by or on behalf of any other
Person.
(c) Binding Effect. This Amendment shall be binding upon, inure to the
benefit of and be enforceable by each party hereto and their respective
successors and assigns.
(d) Governing Law. THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK UPON THE SAME TERMS AND
CONDITIONS AS THOSE SET FORTH IN SECTION 27 OF THE AGREEMENT.
(e) Complete Agreement; Amendments. This Amendment contains the entire
and exclusive agreement of the parties hereto with reference to the matters
discussed herein and therein. This Amendment supersedes all prior commitments,
drafts, communications, discussions and understandings, oral or written, with
respect thereto. This Amendment may not be modified, amended or otherwise
altered except, in accordance with the terms of Section 25 of the Agreement.
(f) Severability. Whenever possible, each provision of this Amendment
shall be interpreted in such manner as to be effective and valid under all
applicable laws and regulations. If, however, any provision of this Amendment
shall be prohibited by or invalid under any such law or regulation in any
jurisdiction, it shall, as to such jurisdiction, be deemed modified to conform
to the minimum requirements of such law or regulation, or, if for any reason it
is not deemed so modified, it shall be ineffective and invalid only to the
extent of such prohibition or invalidity without affecting the remaining
provisions of this Amendment, or the validity or effectiveness of such provision
in any other jurisdiction.
(g) Counterparts. This Amendment may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which taken
together shall constitute but one and the same agreement.
[Remainder of this page intentionally left blank.]
3
IN WITNESS WHEREOF, the patties hereto have duly executed this
Amendment, as of the date first above written.
STILLWATER MINING COMPANY
By
--------------------------------
Name:
Title:
By
--------------------------------
Name:
Title:
MITSUBISHI INTERNATIONAL CORPORATION
By
--------------------------------
Name:
Title:
4
