Platinum Group Metals Ltd. - Exhibit 4.6 - Filed by newsfilecorp.com






Execution Version 

PLATINUM GROUP METALS LTD. 

as Borrower 

- and - 

PLATINUM GROUP METALS (RSA) PROPRIETARY LIMITED 

as Guarantor 

- and -

 

LIBERTY METALS & MINING HOLDINGS, LLC 

as Agent 

- and - 

LIBERTY METALS & MINING HOLDINGS, LLC

    

  as Production
Payment Termination Fee Holder 

- and - 

THE SEVERAL LENDERS 
FROM TIME TO TIME PARTIES
HERETO 


as Lenders 


	THIRD MODIFICATION AGREEMENT TO THE SECOND
      
AMENDED AND RESTATED CREDIT AGREEMENT




Dated as of May 10, 2018 

Third Modification Agreement to the Second Amended and Restated
Credit Agreement 




Execution Version 

THIRD MODIFICATION AGREEMENT TO THE SECOND AMENDED AND
RESTATED CREDIT AGREEMENT made as of the 10th day of May, 2018


BETWEEN: 


  
    
      
        PLATINUM GROUP METALS LTD., a company existing under the
          laws of British Columbia 

        (hereinafter referred to as the “Borrower”) 

      

    

  



AND: 


  
    
      
        PLATINUM GROUP METALS (RSA) PROPRIETARY LIMITED, a
          company existing under the laws of South Africa 

        (hereinafter referred to as the “Guarantor”, and
          together with the Borrower, the “Credit Parties”) 

      

    

  



AND: 


  
    
      
        LIBERTY METALS & MINING HOLDINGS, LLC, a limited
          liability company formed under the laws of Delaware, as administrative agent
        

        (hereinafter referred to as the “Agent” or the
          “Production Payment Termination Fee Holder”, as applicable) 

      

    

  



AND: 


  
    
      
        THE SEVERAL LENDERS FROM TIME TO TIME PARTY HERETO AS
          LENDERS (together with their respective successors and permitted assigns,
          the “Lenders” and together with the Agent and the Production Payment
          Termination Fee Holder, the “Finance Parties”) 

      

    

  



BACKGROUND: 

A.        The Credit Parties
and the Finance Parties entered into a second amended and restated second lien
credit agreement on February 12, 2018 (the “A&R CA”), as amended by a
first modification agreement to the second amended and restated credit agreement
dated as of February 28, 2018 (the “First Modification Agreement”). 

B.        The Finance
Parties provided certain consents and waivers in respect of the A&R CA (as
amended by the First Modification Agreement) by way of an email dated March 28,
2018 (the “Consent and Waiver”). 

C.        The Credit
Parties and the Finance Parties entered into a second modification agreement to
the second amended and restated credit agreement dated as of May 1, 2018 (the
“Second Modification Agreement” and together with the Consent and Waiver
and the A&R CA and the First Modification Agreement, the “Credit
Agreement”). 

Third Modification Agreement to the Second Amended and Restated
Credit Agreement 




- 2 - 

D.        The Credit
Parties have requested and the Finance Parties have agreed to amend certain
provisions in the Credit Agreement. 

E.        The Finance
Parties have agreed to the foregoing on and subject to the terms of this
Agreement. 

AGREEMENTS 

                          NOW
THEREFORE THIS AGREEMENT WITNESSES that, in consideration of the mutual
covenants and agreements herein contained and for other good and valuable
consideration (the receipt and sufficiency of which are hereby acknowledged),
the parties hereto covenant and agree as follows: 

ARTICLE 1 
INTERPRETATION 


	1.1 	
      Defined Terms

	 	 
		
      Unless otherwise defined herein, all defined terms shall
      for all purposes of this Agreement, or any amendment, substitution,
      supplement, replacement, restatement or addition hereto, have the meanings
      given in the Credit Agreement, as amended.

	 	 
	1.2 	
      Other Usages

	 	 
		
      References to “this Agreement”, “the
      Agreement”, “hereof”, “herein”, “hereto” and like
      references refer to this Agreement and not to any particular Article,
      Section or other subdivision of this Agreement. Any references herein to
      any agreements or documents shall mean such agreements or documents as
      amended, supplemented, restated or otherwise modified from time to time in
      accordance with the terms hereof and thereof.

	 	 
	1.3 	
      Headings

	 	 
		
      The division of this Agreement into Articles and Sections
      and the insertion of headings in this Agreement are for convenience of
      reference only and shall not affect the construction or interpretation of
      this Agreement.

	 	 
	1.4 	
      Applicable Law

	 	 
		
      This Agreement shall be governed by and construed in
      accordance with the laws of the Province of British Columbia and the
      federal laws of Canada applicable therein. Any legal action or proceeding
      with respect to this Agreement may be brought in the courts of the
      Province of British Columbia and, by execution and delivery of this
      Agreement, the parties hereby accept for themselves and in respect of
      their property, generally and unconditionally, the non-exclusive
      jurisdiction of the aforesaid courts. Each party irrevocably consents to
      the service of process out of any of the aforementioned courts in any such
      action or proceeding by the mailing of copies thereof by registered or
      certified mail, postage prepaid, to such party to the address prescribed
      by Sections 10.1 or 10.2 of the Credit Agreement, as applicable, such
      service to become effective five Business Days after such mailing. Nothing
      herein shall limit the right of any party to serve process in any manner
      permitted by law or to commence legal proceedings or otherwise proceed
      against any other party in any other
jurisdiction.







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	1.5 	
      Time of the Essence

	 	 
		
      Time shall in all respects be of the essence of this
      Agreement.



ARTICLE 2 
AMENDMENTS 


	2.1 	
      Amendment to Stated Maturity Date

	 	 
		
      The definition of “Stated Maturity Date” set out in
      Section 1.1 of the A&R CA is hereby amended by deleting that
      definition in its entirety and replacing it with the
  following:



““Stated Maturity Date” means October 31, 2019.”. 

	2.2 	
      Subsequent Amendments

	 	 	 
		(a) 	
      The definitions of “First Outside Financing Date”,
      “Second Outside Financing Date” and “Second Required Financing” and set
      out in Section 1.1 of the A&R CA are hereby deleted in their
      entirety.

	 	 	 
		(b) 	
      Section 3.3 of the A&R CA is hereby amended by
      deleting that section in its entirety and replacing it with the following:

       “The Credit Parties shall use the first US$12 million of the gross
        proceeds from the First Required Financing to reduce the Facility
    Indebtedness.

	 	 	 
			
      If the Credit Parties or any of the Subsidiaries close
      one or more equity or debt financings (excluding intercompany financings
      between Credit Parties or the Subsidiaries, the First Required Financing)
      having a value exceeding $500,000 in the aggregate, the Borrower shall pay
      or cause to be paid 50% of the proceeds of such financings, net of
      reasonable financing costs (the “Cash Sweep”), to the Production
      Payment Termination Fee Holder in prepayment of the Production Payment
      Termination Obligations until such obligations are paid in full and
      discharged and thereafter to the Lenders in prepayment of the Facility.

       If
        any warrants or other convertible securities issued by or on behalf of a
        Credit Party are exercised, 50% of the proceeds of such exercise shall be
        paid by the applicable Credit Party to (i) the Production Payment
        Termination Fee Holder in prepayment of the Production Payment Termination
        Obligations until such obligations are paid in full and discharged and
    (ii) thereafter to the Lenders in prepayment of the Facility.”.

	 	 	 
		(c) 	
      Section 3.9 of the A&R CA is hereby amended by
      deleting that section in its entirety and replacing it with the following:
      “All amounts paid by or on behalf of the Credit Parties to the Finance
      Parties, including in connection with the First Required Financing, shall
      be applied first to the Production Payment Termination Obligations until
      such obligations are paid in full and discharged and thereafter to the
      Lenders in payment of the remaining Facility Indebtedness.”.

	 	 	 
		(d) 	
      Section 7.1(n) of the A&R CA is hereby amended by
      deleting that section in its entirety and replacing it with the following:

       “by no later than May 31, 2018, complete one or more offerings of
        subordinated debt (in form and substance satisfactory to the Agent) or
        common shares or securities convertible into or exercisable for common
        shares or a combination of the foregoing for
    gross proceeds on closing of not less than $15,000,000 in the
      aggregate (collectively the “First Required
Financing”);”.








- 4 - 

	 	(e) 	
      Section 7.2(z) is amended by deleting the “and” that
      follows the “;”.

	 	 	 
	 	(f) 	
      Section 7.2(aa) is amended by deleting the “.” and
      inserting “;”.

	 	 	 
	 	(g) 	
      A new Section 7.2(bb) is added immediately following
      Section 7.2(aa) which new section shall provide as follows: “The Credit
      Parties agree to provide the Agent at least 15 Business Days prior written
      notice of (i) any of the proceedings referred to in Section 8.1(f) of the
      Credit Agreement or (ii) any intention to institute any resolution
      referred to in Section 8.1(i) of the Credit Agreement; and”.

	 	 	 
	 	(h) 	
      A new Section 7.2(cc) is added immediately following
      Section 7.2(bb) which new section shall provide: “The Borrower will use
      its reasonable commercial efforts to qualify a registration statement in
      respect of the Shares underlying the warrants issued pursuant to the First
      Required Financing in the time and in the manner required by the indenture
      governing such warrants.”.

	 	 	 
	 	(i) 	
      Section 2.4 of the A&R CA is hereby amended by
      deleting that section in its entirety and replacing it with the following:
      “Interest shall accrue (i) on the principal amount of the Advance from and
      including the date of advance to the Borrower, (ii) on all accrued and
      capitalized interest thereon and (iii) on all overdue amounts outstanding
      in respect of interest, costs or other fees or expenses payable under the
      Facility Documents, in each case at the rate equal to LIBOR plus 9.50%
      (nine and one half percent) per annum, calculated daily and compounded at
      all times until the Stated Maturity Date monthly and shall be capitalized
      and thereafter constitute principal hereunder before as well as after each
      of maturity, default and judgment.”.



ARTICLE 3 
GUARANTOR ACKNOWLEDGEMENT 


	3.1 	
      Guarantor Acknowledgement

	 	 
		
      The Guarantor hereby acknowledges and confirms that the
      Guarantee is continuing and is in full force and effect, notwithstanding
      the amendments to the Credit Agreement effected
hereby.



ARTICLE 4 
WAIVER AND CONDITIONS PRECEDENT



	4.1 	
      Waiver



The Majority Creditors hereby waive
the application of the restrictive covenant set out in Section 7.3(g) of the
Credit Agreement prohibiting the Borrower from entering into any agreement other
than the Material Agreements described in Schedule D of the Credit Agreement concerning any shares or
securities of any Material Subsidiary or the Borrower and hereby permit the
Borrower to enter into an amended and restated subscription agreement with
Hosken Consolidated Investments Limited (“HCI”) dated on or about May 9,
2018 (the “HCI Agreement”), provided that the HCI Agreement (i) relates
only to equity securities of the Borrower, (ii) does not conflict with the terms
of (or the rights of the Agent under any agreement between the Agent, the
Borrower and its Affiliates and (iii) be satisfactory to the Lenders.




- 5 - 

	4.2 	
      Conditions Precedent to the Effectiveness of this
      Agreement

	 	 
		
      Articles 1, 3 and 4 and 5 and Sections 2.2(e), 2.2(f) and
      2.2(g) are effective as of the date of this Agreement. Sections 2.1,
      2.2(a), 2.2(b), 2.2(c), 2.2(d), 2.2(h) and 2.2(i) shall only become
      effective if (i) prior to May 31, 2018: (a) the Borrower has completed one
      or more offerings of subordinated debt (in form and substance satisfactory
      to the Agent) or common shares or securities convertible into or
      exercisable for common shares or a combination of the foregoing for gross
      proceeds on closing of not less than US$15 million in the aggregate; and
      (b) the first US$12 million of the gross proceeds from such financings
      have been paid by the Borrower to the Lender to reduce the Facility
      Indebtedness; and (ii) the Credit Parties are not otherwise in Default
      from the date hereof until the conditions in (i) above are
    satisfied.



ARTICLE 5 
MISCELLANEOUS 


	5.1 	
      General Rule

	 	 
		
      Subject to the terms and conditions herein contained, the
      Credit Agreement, as amended, is hereby further amended to the extent
      necessary to give effect to the provisions of this Agreement and to
      incorporate the provisions of this Agreement into the Credit
    Agreement.

	 	 
	5.2 	
      Future References to the Credit
Agreement

	 	 
		
      On and after the date of this Agreement, (i) each
      reference in the Credit Agreement to “this Agreement”, “hereunder”,
      “hereof”, or words of like import referring to the Credit Agreement, and
      each reference in any related document to the “Credit Agreement”,
      “thereunder”, “thereof”, or words of like import referring to the Credit
      Agreement, and (ii) each reference in the other Facility Documents to the
      Credit Agreement shall mean and be a reference to the Credit Agreement, as
      amended, modified, supplemented, restated or replaced from time to time.
      The Credit Agreement, as amended, is and shall continue to be in full
      force and effect and is hereby in all respects ratified and
    confirmed.

	 	 
	5.3 	
      Enurement

	 	 
		
      This Agreement shall enure to the benefit of and shall be
      binding upon the parties hereto and their respective successors and
      permitted assigns.

	 	 
	5.4 	
      Conflict

	 	 
		
      If any provision of this Agreement is inconsistent or
      conflicts with any provision of the Credit Agreement, the relevant
      provision of this Agreement shall prevail and be
  paramount.







- 6 - 

	5.5 	
      Counterparts

	 	 
		
      This Agreement may be executed in one or more
      counterparts, each of which shall be deemed to be an original and all of
      which taken together shall be deemed to constitute one and the same
      instrument.

	 	 
	5.6 	
      Entire Agreement

	 	 
		
      This Agreement amends and modifies the Credit Agreement
      and together with it and the agreements referred to therein and delivered
      pursuant thereto, constitute the entire agreement between the parties
      hereto and supersedes any prior agreements, undertakings, declarations,
      representations and understandings, both written and verbal, in respect of
      the subject matter hereof.

	 	 
	5.7 	
      Amendments

	 	 
		
      This Agreement may only be amended or modified by further
      written instrument, executed and delivered by each of the parties
      hereto.

	 	 
	5.8 	
      Production Payment Agreement Termination
      Agreement

	 	 
		
      The Finance Parties hereby agree to extend the date that
      the Reduced Termination Fee may be paid to May 31,
2018.



[signature pages follow] 




IN WITNESS WHEREOF the parties hereto have executed this
Agreement under the hands of their proper officers duly authorized on their
behalf on the date first above written. 

 

PLATINUM GROUP METALS LTD. 

 

	Per: 	/s/
      Frank Hallam 	 
	  	Authorized Signatory 	 
	  	 	 
	  	 	 
	Per: 	/s/ R.
      Michael Jones 	 
	  	Authorized Signatory 	 


 

PLATINUM GROUP METALS (RSA) PROPRIETARY LIMITED 

 

	Per: 	/s/
      Frank Hallam 	 
	  	Authorized Signatory 	 
	  	 	 
	  	 	 
	Per: 	/s/ R.
      Michael Jones 	 
	  	Authorized Signatory 	 


 

LIBERTY METALS & MINING HOLDINGS, LLC, as Agent 

 

	Per: 	/s/
      Mark Tomek 	 
	  	Authorized Signatory 	 


 

LIBERTY METALS & MINING HOLDINGS, LLC, as Lender and
Production Payment Termination Fee Holder 

 

	Per: 	/s/
      Mark Tomek 	 
	  	Authorized Signatory 	 


Third Modification Agreement to the Second Amended and Restated
Credit Agreement