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EXHIBIT 10.21
MATERIAL IN THIS DOCUMENT HAS BEEN
OMITTED PURSUANT TO A CONFIDENTIAL
TREATMENT REQUEST. THE OMITTED MATERIAL
HAS BEEN FILED SEPARATELY
WITH THE COMMISSION.
FIRST AMENDMENT AGREEMENT
TO
PALLADIUM AND PLATINUM SALES AGREEMENT
THIS FIRST AMENDMENT AGREEMENT (this "Amendment"), is made and entered
into this 20th day of November, 2000, by and between STILLWATER MINING COMPANY,
a Delaware corporation, whose address is 0000 00xx Xxxxxx, Xxxxx 000, Xxxxxx,
Xxxxxxxx ("SMC") and GENERAL MOTORS CORPORATION, a Delaware corporation, whose
address is 000 Xxxxxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000-0000 ("GM").
SMC and GM are parties to a Palladium and Platinum Sales Agreement
dated as of August 17, 1998 (the "Original Contract," and, as the same may be
amended from time to time, the "Agreement"). SMC has requested that GM agree to
certain amendments to the Agreement, and GM has agreed to such request, subject
to the terms and conditions hereof.
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 date hereof, upon satisfaction of the conditions set forth in Section 3:
(i) Section 2 of the Agreement shall be amended by deleting it in
its entirety and by substituting the following therefor:
"Section 2. Term. This Agreement shall become effective on
January 1, 2001, through and including the date upon which SMC shall
satisfy its obligation to sell and deliver to GM the aggregate number
of [ *** ] Ounces of Palladium stipulated in the Original Contract.
Specifically, the Original Contract stipulated the sale and delivery by
SMC to GM of an aggregate number of [ *** ] Ounces of Palladium,
[ *** ] of which Ounces were subject to both a minimum and a maximum
price (the "Min/Max Formula") and [ *** ] of which Ounces were subject
only to a minimum price (the "Floor-Only Formula"). At the end of
calendar year 2000 SMC and GM will determine the aggregate number of
Ounces delivered pursuant to the Original Contract and will determine
the number of Ounces remaining to be delivered under the Min/Max
Formula and the number of Ounces remaining to
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be delivered under the Floor-Only Formula. The Ounces of Palladium
remaining to be delivered under the Min/Max Formula will be delivered
under Tranche A hereunder and the Ounces of Palladium remaining to be
delivered under the Floor-Only Formula will be delivered under Tranche
B hereunder until each such obligation to sell and deliver [ *** ]
Ounces to GM is satisfied. During the final year of the initial term
and the final year of any extended term thereafter, SMC and GM, by
mutual agreement, may extend the term of this Agreement for a mutually
agreed upon period. This Agreement is subject to earlier termination
pursuant to Section 9 of this Agreement."
(ii) Section 3 of the Agreement shall be amended by deleting
subsection (a) thereof in its entirety and by substituting the following
therefor:
"(a) Palladium. (i) Tranche A. During each of the Contract
Years commencing with 2001, SMC will sell and deliver and GM will
purchase on a monthly basis [***] of the Actual Monthly Production of
Palladium until such date (the "Tranche A Fulfillment Date") as SMC has
sold and delivered and GM has purchased an aggregate of [ *** ] Ounces
of Palladium pursuant to the terms and conditions of Tranche A
specified herein (i.e., after subtracting the Ounces sold and delivered
in 1999 and 2000). At the end of calendar year 2000, SMC and GM will
determine the aggregate number of Ounces delivered pursuant to the
Original Contract which satisfy such obligation of [ *** ] Ounces of
Palladium and the aggregate number of Ounces remaining to be delivered
during the remaining term of this Agreement. The parties acknowledge
that the Actual Monthly Production of Palladium will vary from time to
time.
(ii) Tranche B. During each of the Contract Years commencing
with 2001, SMC will sell and deliver and GM will purchase on a monthly
basis [***] of the Actual Monthly Production of Palladium until such
date (the "Tranche B Fulfillment Date") as SMC has sold and delivered
and GM has purchased an aggregate of [ *** ] Ounces of Palladium
pursuant to the terms and conditions of Tranche B specified herein
(i.e., after subtracting the Ounces sold and delivered in 1999 and
2000). At the end of calendar year 2000, SMC and GM will determine the
aggregate number of Ounces delivered pursuant to the Original Contract
which satisfy such obligation of [ *** ] Ounces of Palladium and the
aggregate number of Ounces remaining to be delivered during the
remaining term of this Agreement. Commencing with the Tranche A
Fulfillment Date and continuing until the Tranche B Fulfillment Date,
the [***] of the Actual Monthly Production of Palladium previously
being sold and delivered under Tranche A will be sold and delivered
pursuant to the terms and conditions of Tranche B set forth herein (so
that the total combined percentage of Actual Monthly Production of
Palladium being sold and delivered hereunder will be [***] from the
Tranche A Fulfillment Date until the Tranche B Fulfillment Date).
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(iii) Section 3 of the Agreement shall be amended by inserting
new subsections (e) and (f) at the end thereof which shall read as follows:
"(e) Monthly Accounting. SMC will include with its monthly
notification of Actual Monthly Production provided to GM under Section
3(c) hereof a statement of the number of Ounces of Palladium delivered
pursuant to each of Tranches A and B hereunder. The parties shall
endeavor in good faith to resolve promptly any disputes with respect to
such numbers of Ounces.
[***]
(iv) Section 9 of the Agreement shall be amended by deleting the
last sentence thereof and by substituting the following therefor:
"The provisions of Sections 5, 8, 11, 12, 15 and 18 of this
Agreement will survive the termination hereof."
(v) Section 17 of the Agreement shall be amended by deleting the
addresses of SMC and GM therefrom and by substituting the following
therefor:
"SMC Stillwater Mining Company
0000 00xx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
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Attention: Vice President of Metals Marketing
with a copy to: Chief Financial Officer
Facsimile No.: (000) 000-0000
and with a copy to: Xx. Xxxxx Xxxxxxx
Facsimile No.: (000) 000-0000
GM General Motors Corporation
Cadillac Building
00000 Xxx Xxxx Xxxxxx
Xxxxxx, Xxxxxxxx 00000
Attention: Purchasing Director
Facsimile No.: (000) 000-0000
with a copy to: Executive Director, Metallic
Worldwide Purchasing
Facsimile No.: (000) 000-0000"
(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 Conditions of Effectiveness. The effectiveness of Section 2
of this Amendment shall be subject to the satisfaction of each of the following
conditions precedent:
(a) Agreement. SMC and GM shall have each received a signed counterpart
of this Amendment, or a facsimile copy thereof, signed by the other party
hereto.
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
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 25 OF THE AGREEMENT.
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(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 24 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.]
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IN WITNESS WHEREOF, the parties hereto have duly executed this
Amendment, as of the date first above written.
STILLWATER MINING COMPANY
By /s/ Xxxxxxx X. Xxxxxxx
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Name: Xxxxxxx X. Xxxxxxx
Title: Chief Executive Officer
By /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title: Vice President of Metals
Marketing
GENERAL MOTORS CORPORATION
By /s/ Xxxxxxx Xxxxxxxxx
---------------------------------
Name: Xxxxxxx Xxxxxxxxx
Title: Executive Director
By /s/ Xxxxx Xxxxxx
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Name: Xxxxx Xxxxxx
Title: Purchasing Director
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