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EXHIBIT 10.1
MATERIAL IN THIS DOCUMENT HAS BEEN
OMITTED PURSUANT TO A
CONFIDENTIAL TREATMENT REQUEST.
THE OMITTED MATERIAL HAS
BEEN FILED SEPARATELY WITH THE
COMMISSION.
SECOND AMENDMENT AGREEMENT
TO
PALLADIUM AND PLATINUM SALES AGREEMENT
THIS SECOND AMENDMENT AGREEMENT (this "Amendment"), is made
and entered into this 27th day of March, 2001, by and between STILLWATER MINING
COMPANY, a Delaware corporation, whose address is 1200 17th Street, Suite 900,
Denver, Colorado ("SMC") and FORD MOTOR COMPANY, a Delaware corporation, whose
address is 17101 Rotunda Drive, Dearborn, Michigan ("Ford").
SMC and Ford are parties to a Palladium Sales Agreement dated
as of August 13, 1998 (as amended by the First Amendment Agreement to Palladium
Sales Agreement dated as of October 27, 2000, the "Original Contract," and, as
the same may be amended from time to time, the "Agreement"). SMC has requested
that Ford agree to certain amendments to the Agreement, and Ford 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 April 1, 2001, upon satisfaction of the conditions set forth in
Section 3:
(i) Section 1 of the Agreement shall be amended by
inserting definitions of [***] and [***] following the definition of
"Metal" which shall read respectively as follows:
[***]
[***]
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(ii) The definition of "Pricing Month" in Section 1 of
the Agreement shall be amended by deleting it in its entirety and by
substituting the following therefor:
"Pricing Month means the month during which pricing is
determined pursuant to Section 4 of this Agreement."
(iii) Section 1 of the Agreement shall be amended by
inserting a definition of [***] following the definition of [***] which
shall read as follows:
[***]
(iv) Section 3 of the Agreement shall be amended by
deleting the first paragraph thereof in its entirety and by
substituting the following therefor:
"Section 3. Quantity and Delivery. Beginning on April
1, 2001, SMC will sell and deliver Metal FOB Delivery Point,
to be credited to Ford's pool account, and Ford will purchase
the quantities of Metal set forth in this Section 3, which
shall be released to the Delivery Point on the last Business
Day of the Pricing Month."
(v) Section 3 of the Agreement shall be amended by
deleting subsection (a) thereof in its entirety and by substituting the
following therefor:
"(a)(i) Palladium. During each of the Contract Years
from and including 2001 through and including 2003, SMC will
sell and deliver and Ford will purchase on a monthly basis
[***] of Actual Monthly Production of Palladium. During each
of the Contract Years from and including 2004, and continuing
thereafter until such time as SMC notifies Ford that SMC's
obligations to deliver Palladium to other customers of SMC
have been satisfied, SMC will sell and deliver and Ford will
purchase on a monthly basis [***] of Actual Monthly Production
of Palladium. [***]
[***]
(a)(ii) Platinum.
(A) Contract Year 2001. During the Contract
Year 2001, SMC will sell and deliver and Ford will
purchase on a monthly basis [***] of Actual Monthly
Production of Platinum.
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(B) Contract Years 2002 - 2010. During each of
the Contract Years from and including 2002 through and
including 2010, SMC will sell and deliver and Ford
will purchase on a monthly basis [***] of Actual
Monthly Production of Platinum.
(C) Actual Monthly Production. The parties
acknowledge that the Actual Monthly Production of
Platinum will vary from time to time."
(vi) Section 3 of the Agreement shall be amended by
deleting subsection (c) thereof in its entirety and by substituting the
following therefor:
"(c) Notification of Estimated Annual Production and
of Actual Monthly Production. Not later than December 15th
prior to each Contract Year, SMC shall, for informational
purposes only, notify Ford in writing of the Estimated Annual
Production for such Contract Year. Not later than the last
Business Day of the month preceding the Pricing Month, SMC
shall notify Ford in writing of its Actual Monthly Production,
which amount will be priced during the next month, i.e. the
Pricing Month, and released to the Delivery Point on the last
Business Day of the Pricing Month. Ford and SMC will verify
actual production amounts by reference to production data set
forth in SMC's Quarterly Report on Form 10-Q, filed with the
Securities and Exchange Commission (the "SEC"). Ford shall
have the right to request from SMC statements from SMC's third
party refiners to verify Actual Monthly Production amounts.
By way of example, for delivery of Metal at the end of
February 2001, SMC will notify Ford of the Actual Monthly
Production by the last Business Day in January 2001 and the
Metal will be priced in February 2001 and released to the
Delivery Point on February 28, 2001."
(vii) Section 3 of the Agreement shall be amended by
deleting subsection (e) thereof in its entirety and substituting the
following therefor:
[***]
(viii) Section 4(a) of the Agreement shall be amended
by deleting such section in its entirety and by substituting the
following therefor:
"(a) Palladium. During each Contract Year, the price
to be paid to SMC by Ford for the actual quantities of
Palladium delivered pursuant to Section 3 above shall be based
on the [***] for the Pricing Month less a discount
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per Ounce as set forth in the appropriate table below
opposite such Contract Year. [***]:
For [***]:
Contract Minimum Ceiling
Year Price Price Discount
---- ----- ----- --------
2001 [***] [***] [***]
2002 [***] [***] [***]
2003 [***] [***] [***]
2004 [***] [***] [***]
2005 [***] [***] [***]
2006 [***] [***] [***]
2007 [***] [***] [***]
2008 [***] [***] [***]
2009 [***] [***] [***]
2010 [***] [***] [***]
For [***]:
Contract Minimum Ceiling
Year Price Price Discount
---- ----- ----- --------
2001 [***] [***] [***]
2002 [***] [***] [***]
2003 [***] [***] [***]
2004 [***] [***] [***]
2005 [***] [***] [***]
2006 [***] [***] [***]
2007 [***] [***] [***]
2008 [***] [***] [***]
2009 [***] [***] [***]
2010 [***] [***] [***]
(ix) Section 5 of the Agreement shall be amended by
deleting the word "two" after the word "within" and before the word
"Business" in the seventh line thereof and by substituting the word
"three" therefor.
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(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 Ford 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 26 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 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
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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.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Amendment, as of the date first above written.
STILLWATER MINING COMPANY
By /s/ Francis R. McAllister
------------------------------
Name: Francis R. McAllister
Title: Chairman & CEO
By /s/ Robert C. Lapple
------------------------------
Name: Robert C. Lapple
Title: VP, Marketing
FORD MOTOR COMPANY
By /s/ Tony Brown
------------------------------
Name: Tony Brown
Title: Exec. Dir. MPO Purch.
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