Exhibit 10
SUPPLY AGREEMENT
BETWEEN
RWE NUKEM, INC.
AND
BRUSH WELLMAN INC.,
FOR
THE SALE AND PURCHASE OF
BERYLLIUM PRODUCTS
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TABLE OF CONTENTS
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Page
----
RECITALS.........................................................................................................1
AGREEMENT ..................................................................................................2
I. DEFINITIONS.............................................................................................2
1.1 "Agreement".....................................................................................2
1.2 "Applicable Delivery Year"......................................................................2
1.3 "Base Quantity".................................................................................2
1.4 "Be-Metal"......................................................................................2
1.5 "Be Price Variation"............................................................................2
1.6 "Beryllium".....................................................................................2
1.7 "Beryllium Product".............................................................................2
1.8 "Buyer".........................................................................................2
1.9 "Contract Price (Be-Metal)".....................................................................2
1.10 "Contract Price (CuBe Master Alloy)"............................................................2
1.11 "Contract Term".................................................................................2
1.12 "CuBe Master Alloy".............................................................................2
1.13 "Delivery Year".................................................................................2
1.14 "Draw Down".....................................................................................3
1.15 "Elmore Stockpile Facility".....................................................................3
1.16 "Financing Agreements"..........................................................................3
1.17 "Kazatomprom"...................................................................................3
1.18 "Liens".........................................................................................3
1.19 "Minimum Consigned Inventory"...................................................................3
1.20 "Nukem".........................................................................................3
1.21 "Parties".......................................................................................3
1.22 "Producer"......................................................................................3
1.23 "Producer Agreement"............................................................................3
1.24 "Producer's On-Site Agent"......................................................................3
1.25 "Qualified CuBe Master Alloy"...................................................................3
1.27 "Sample"........................................................................................3
1.28 "Seller"........................................................................................3
1.29 "Stockpile".....................................................................................3
1.30 "Taxes".........................................................................................3
1.31 "Ulba"..........................................................................................3
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1.32 "Ulba Stockpile Facility"........................................................................4
II. (Deleted Intentionally)
III. SALE AND PURCHASE; TIMING OF DELIVERIES; RISK OF LOSS....................................................5
3.1 Sale and Purchase................................................................................5
3.2 Adjustment to Base Quantity......................................................................6
3.3 Reimbursement of Transport Costs.................................................................7
3.4 Purchase Orders..................................................................................7
3.5 Qualification of Beryllium Products..............................................................7
3.6 (Deleted Intentionally) 8
3.7 Nonconformity....................................................................................9
3.8 (Deleted Intentionally)..........................................................................9
3.9 (Deleted Intentionally).........................................................................10
3.10 Title and Risk of Loss..........................................................................10
3.11 ULBA Production Facility Inspection.............................................................11
IV. CONTRACT PRICE..........................................................................................11
4.1 Contract Price..................................................................................11
4.2 Adjustment to Be Price..........................................................................11
4.3 (Deleted Intentionally).........................................................................11
4.4 (Deleted Intentionally).........................................................................11
V. PAYMENT 12
5.1 Invoice for CuBe Master Alloy...................................................................12
5.2 Invoice for Be-Metal............................................................................12
5.3 Payment by Buyer................................................................................12
5.4 Late Payment....................................................................................13
VI. TAXES, DUTIES, TARIFFS..................................................................................13
VII. REPRESENTATIONS AND WARRANTIES..........................................................................13
7.1 Representations and Warranties of Seller........................................................13
7.2 Representations and Warranties of Buyer.........................................................15
VIII. TERMINATION; RESPONSIBILITY FOR ACTIONS.................................................................16
8.1 Termination.....................................................................................16
8.2 (Deleted Intentionally).........................................................................16
IX. FORCE MAJEURE...........................................................................................16
9.1 Liability.......................................................................................16
9.2 Events of Force Majeure.........................................................................17
9.3 Termination Due to Force Majeure................................................................17
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X. Compensation............................................................................................18
XI. REMEDIES; LIMITATION OF LIABILITY.......................................................................18
11.1 Failure to Make Scheduled Delivery..............................................................18
11.2 [Intentionally Deleted.]........................................................................18
11.3 Failure to Purchase Base Quantity...............................................................18
11.4 Sales to Third Parties..........................................................................18
11.5 No Consequential Damages........................................................................18
XII. INDEMNIFICATION.........................................................................................19
XIII. CONFIDENTIALITY.........................................................................................19
XIV. LICENSES, PERMITS AND AUTHORIZATIONS....................................................................19
XV. GOVERNING LAW; JURISDICTION.............................................................................20
15.1 Governing Law...................................................................................20
XVI. ASSIGNMENT..............................................................................................20
XVII. NOTICES 20
XVIII. MISCELLANEOUS PROVISIONS................................................................................21
18.1 Headings; Interpretation........................................................................21
18.2 Survival........................................................................................21
18.3 Rounding of Figures.............................................................................21
18.4 Severability....................................................................................22
18.5 Good Faith Dealings.............................................................................20
18.6 Amendment.......................................................................................22
18.7 Language........................................................................................22
18.8 Waiver..........................................................................................22
18.9 Obligation to Make Payments in Dollars..........................................................22
18.10 Counterparts....................................................................................21
18.11 Expenses........................................................................................21
XIX. ENTIRE AGREEMENT........................................................................................23
XX. EFFECTIVENESS...........................................................................................23
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SUPPLY AGREEMENT
THIS SUPPLY AGREEMENT (this "Agreement") as made on the 7th day of September,
2000, between RWE NUKEM, Inc., a New York corporation ("Seller") and Brush
Wellman, Inc., an Ohio corporation ("Buyer"), and as amended on this Fourth Day
of September, 2003.
RECITALS
A. WHEREAS, there exist sources of beryllium ore, beryllium hydroxide,
beryllium oxide and beryllium in metal ingot, scrap, powder and alloy form
in Kazakhstan and elsewhere in the world;
B. WHEREAS, Buyer has an efficient existing beryllium marketing, sales and
service network to sell beryllium products on the world market in a short
period of time, and Seller does not have such a network and therefore
cannot sell Beryllium Products on the world market in a similar time
frame;
C. WHEREAS, Buyer's existing customer base needs large supplies of Beryllium
Products in a short period of time;
D. WHEREAS, Buyer has the technology and facilities to process and fabricate
beryllium into forms useable by its customers, but is unable to meet the
demands of its customers for beryllium products unless it makes
substantial capital investments for the extraction of beryllium ore;
E. WHEREAS, Seller desires to sell CuBe Master Alloy and Be-Metal of ULBA
Grade B-1, to Buyer, and Buyer desires to purchase certain quantities of
Beryllium Products from Seller, upon the terms and subject to the
conditions set forth in this Agreement. (Specifications for CuBe Master
Alloy are set forth in Exhibit A, and specifications for ULBA Grade B-1
Be-Metal are set forth in Exhibit B, attached to this agreement)
F. WHEREAS, Buyer, Producer, Seller desire to use their complementary
capabilities to realize, pursuant to this non-exclusive agreement,
business opportunities that none of them reasonably could accomplish alone
in a short period of time.
G. WHEREAS, simultaneously with the execution of this Agreement, Seller will
execute a contract for the sale of the Beryllium Products purchased under
this contract with Producer ("Producer Agreement").
H. WHEREAS, the Parties hereto recognize that this Agreement will provide
Seller with a unique opportunity to market and sell beryllium on the world
market on a commercially viable scale in a very short period of time;
I. (Intentionally deleted)
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AGREEMENT
NOW, THEREFORE, in consideration of the premises, and mutual covenants,
obligations and agreements set forth in this Agreement, the Parties hereto
hereby agree as follows:
I. DEFINITIONS
1.1 "Agreement" shall have the meaning set forth in the Preamble to this
Agreement.
1.2 "Applicable Delivery Year" shall have the meaning set forth in Section
3.3.
1.3 "Base Quantity" for any Delivery Year means the amount of Beryllium set
forth in Section 3.1 opposite such Delivery Year under the heading "Base
Quantity", subject to adjustment pursuant to Section 3.2, Section 11.1
and/or Section 11.3.
1.4 "Be-Metal" shall have the meaning set forth in the Recitals to this
Agreement.
1.5 "Be Price Variation" shall have the meaning set forth in Section 4.2.
1.6 "Beryllium" and "Beryllium Product" mean such beryllium in the form of
Be-Metal and such beryllium metal contained in CuBe Master Alloy which has
been purchased by Seller from Producer under the Producer Agreement, in
each case with the specifications set forth in Exhibit A and Exhibit B to
this Agreement.
1.7 [intentionally deleted]
1.8 "Buyer" shall have the meaning set forth in the Preamble to this
Agreement.
1.9 "Contract Price (Be-Metal)" shall have the meaning set forth in Section
4.1.
1.10 "Contract Price (CuBe Master Alloy)" shall have the meaning set forth in
Section 4.1.
1.11 "Contract Term" means the period commencing the date of this Agreement
through and including December 31, 2012.
1.12 "CuBe Master Alloy" means copper-beryllium master alloy having nominally
4.0% Beryllium by weight.
1.13 "Delivery" shall mean CIF Elmore pursuant to the terms of this Agreement.
1.14 "Delivery Year" means any twelve calendar month period during the Contract
Term that begins on January 1 and ends on December 31.
1.15 "Draw Down" shall mean physical Delivery pursuant to Section 1.13.
1.16 "Elmore Stockpile Facility" means Buyer's beryllium production and
fabrication facility located at Elmore, Ohio, USA.
1.17 [Intentionally Deleted].
1.18 "Kazatomprom" shall have the meaning set forth in Section 1.23.
1.19 "Liens" shall have the meaning set forth in Section 7.1.
1.20 (Intentionally deleted)
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1.21 "RWE Nukem" shall have the meaning set forth in the Preamble to this
Agreement.
1.22 "Party" or "Parties" to this Agreement shall be Seller and/or Buyer.
1.23 "Producer" shall mean both, jointly and severally, Kazatomprom, a
corporation organized under the laws of the Republic of Kazakhstan
("Kazatomprom") and Ulba Metallurgical Plant, a corporation organized
under the laws of the Republic of Kazakhstan ("Ulba").
1.24 "Producer Agreement" shall mean the Agreement among NUKEM, Inc. and
Kazatomprom and Ulba for the Sale and Purchase of Beryllium Products dated
September 7, 2000.
1.25 "Seller's On-Site Agent" shall have the meaning set forth in Section 3.7.
1.26 [Intentionally Deleted].
1.27 "Sample" shall mean in case of Be Metal, approximately 5,000 lbs. of
Beryllium contained in Be Metal. The samples shall be Delivered to the
Elmore Facility in accordance with Section 3.5.
1.28 "Seller" shall have the meaning set forth in the Preamble to this
Agreement.
1.29 (Intentionally deleted)
1.30 "Taxes" shall have the meaning set forth in Article VI.
1.31 "Ulba" shall have the meaning set forth in Section 1.23.
1.32 (Intentionally deleted).
ARTICLE II (INTENTIONALLY DELETED)
III. SALE AND PURCHASE; TIMING OF DELIVERIES; RISK OF LOSS
3.1 Sale and Purchase. In each Delivery Year of the Contract term, Buyer shall
Draw Down and purchase from Seller all of the applicable Minimum Quantity
of Beryllium Products subject to
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acceptable changes specified for such Delivery Year in Section 3.1, in
accordance with the schedule as follows in Table 1.
Table 1 (Be contained in CuBe Master Alloy)
Delivery Year Minimum Quantity Maximum Quantity
(pounds/kgs Beryllium) (pounds/kgs Beryllium)
- ------------------------------- -------------------------------------- --------------------------------------
2003 10,000/4,535 +/-2% 25,000/11,340 +/-2%
- ------------------------------- -------------------------------------- --------------------------------------
2004 25,000/11,340 +/-2% 150,000/68,040 +/-2%
- ------------------------------- -------------------------------------- --------------------------------------
2005 25,000/11,340 +/-2% 150,000/68,040 +/-2%
- ------------------------------- -------------------------------------- --------------------------------------
2006 25,000/11,340 +/-2% 150,000/68,040 +/-2%
- ------------------------------- -------------------------------------- --------------------------------------
2007 25,000/11,340 +/-2% 150,000/68,040 +/-2%
- ------------------------------- -------------------------------------- --------------------------------------
2008 30,000/15,875 +/-2% 150,000/68,040 +/-2%
- ------------------------------- -------------------------------------- --------------------------------------
2009 35,000/15,875 +/-2% 150,000/68,040 +/-2%
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2010 40,000/18,145 +/-2% 150,000/68,040 +/-2%
- ------------------------------- -------------------------------------- --------------------------------------
2011 40,000/18,145 +/-2% 150,000/68,040 +/-2%
- ------------------------------- -------------------------------------- --------------------------------------
2012 40,000/18,145 +/-2% 150,000/68,040 +/-2%
- ------------------------------- -------------------------------------- --------------------------------------
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Table 2 (ULBA Grade B-1) Be-Metal
Delivery Year Minimum Quantity Variation (%)
(pounds/kgs Beryllium)
- ------------------------------ -------------------------------------- --------------------------------------
2003 5,000/2,270 +/-10%
- ------------------------------ -------------------------------------- --------------------------------------
2004 35,000/15,875 +/-10%
- ------------------------------ -------------------------------------- --------------------------------------
2004 35,000/15,875 +/-10%
- ------------------------------ -------------------------------------- --------------------------------------
2006 35,000/15,875 +/-10%
- ------------------------------ -------------------------------------- --------------------------------------
2007 35,000/15,875 +/-10%
- ------------------------------ -------------------------------------- --------------------------------------
2008 35,000/15,875 +/-10%
- ------------------------------ -------------------------------------- --------------------------------------
2009 35,000/15,875 +/-10%
- ------------------------------ -------------------------------------- --------------------------------------
2010 35,000/15,875 +/-10%
- ------------------------------ -------------------------------------- --------------------------------------
2011 35,000/15,875 +/-10%
- ------------------------------ -------------------------------------- --------------------------------------
2012 35,000/15,875 +/-10%
- ------------------------------ -------------------------------------- --------------------------------------
In any Delivery Year, Buyer shall have the obligation to purchase
Beryllium Products in the volumes specified as Annual Delivery
Quantities in Table 1 and Table 2 above for each Delivery Year, subject
to the compensation conditions defined in Article X of this Agreement
if lower volumes are purchased.
In partial consideration of the Contract Price negotiated between the
Parties, the Buyer undertakes not to use Beryllium Products purchased
from the Seller for any use but for internal applications. Internal
applications shall refer to the processing of the Beryllium Products by
Buyer into higher value products, as opposed to direct sale of
Beryllium Products to other customers.
3.2 Adjustment to Base Quantity. Pursuant to the variations allowed in
Section 3.1, Buyer will, by advance notice to Seller given not later
than October 1st preceding any Delivery Year, provide a binding notice
specifying the amount of Beryllium Products to be purchased in the next
Delivery Year and the non-binding estimated dates of such Draw Downs
including a delivery schedule that plans for a regular Draw-Down in
approximately 6 shipments each Delivery Year, such that the whole
Annual Quantity of CuBe master alloy and Be-Metal is shipped to the
Buyer in any delivery year.
With regard to the Delivery Year 2012 quantity, the Parties shall meet
and discuss the Delivery Year 2012 Base Quantity and possible extension
of this Agreement and the Producer Agreement.
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3.3 Reimbursement of Transport Costs. Buyer shall reimburse Seller for any
and all delivery costs for the Beryllium Products from St. Petersburg,
Russian Federation to the Elmore Stockpile Facility. Seller shall issue
an invoice for delivery costs to Buyer within ten (10) days after
receipt of each shipment of Beryllium Product at the Elmore Stockpile
Facility. Buyer shall pay Seller's invoice within thirty (30) days
after receipt. Any late payments will be subject to the interest charge
described in Section 5.4.
3.4 Purchase Orders. Buyer will provide a Purchase Order to Seller at least
100 days prior to the date of Draw Down. The Purchase Order shall
specify the Quantity of Beryllium Products to be Delivered in
accordance with Section 3.2 and the date of Delivery.
3.5 Qualification of Beryllium Products. Within sixty (60) days after
Effectiveness of this Agreement, Seller shall deliver to Buyer, and
Buyer shall purchase the Sample. Within sixty (60) days of its receipt
of the Sample, Buyer shall determine whether the Sample is qualified by
satisfying the specifications set forth in Exhibit B to this Agreement.
If Buyer determines that the Sample satisfies Buyer's specifications,
Buyer shall confirm this determination to Seller in writing, and Seller
shall deliver, commencing in Delivery Year 2004, Beryllium Products
consistent with the specifications set forth in Exhibit B.
If, however, the Sample does not satisfy the specifications in Exhibit
B, then Buyer shall provide the Seller with the results of the analyses
supporting the rejection of the Sample, and at the Buyer's sole
discretion, the Buyer may decide any or all of the following options:
3.5.1. To Purchase the Sample quantity against a waiver of specification,
without prejudice to any other section of this Agreement or setting any
precedent for acceptance of future shipments of Be Metal that fail to
meet the Specifications.
3.5.2. To request the Seller to supply a replacement Sample quantity of Be
Metal to be delivered within 90 days of receipt of the above mentioned
results of analyses supporting rejection of the Sample. This may be
repeated at the Buyer's reasonable discretion until the Sample meets
the Buyer's specifications.
3.5.3 To return the Sample to the Seller at Seller's sole cost and expense,
and Buyer shall have the option to terminate this Agreement without any
further action, obligation or liability of any Party.
3.5.4 The Buyer and Seller acknowledge that certain end users of products
manufactured from Be Metal require notification and qualification
sampling if there has been any process change related to the
manufacturer of the Be Metal. In the event that an end user of products
manufactured from Be Metal notifies the Buyer that they cannot use the
products manufactured by the Buyer from the Be Metal purchased from the
Seller until re-qualification is completed, the Buyer, Seller and
Producer agree to meet to attempt to resolve the issue. To the extent
possible, Buyer shall provide Seller with reasonable documentary
evidence of such re-qualification requirement.
3.5.5 The Seller agrees to advise the Buyer in advance before any process
changes are made that affect the Be Metal.
3.6 (Deleted Intentionally)
3.6.1 (Deleted Intentionally)
3.6.2 (Deleted Intentionally)
3.6.3 (Deleted Intentionally)
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3.6.4 (Deleted Intentionally)
3.6.5 (Deleted Intentionally)
3.6.6 (Deleted Intentionally)
3.6.7 (Deleted Intentionally)
3.6.8 (Deleted Intentionally)
3.7 Nonconformity. If at any time during the term of this Agreement there
is a dispute about the quality of any Beryllium Products delivered by
Seller, the Parties shall, in consultation with Producer, appoint a
mutually acceptable independent third party expert to (a) test the
Beryllium Products in question against the specifications set forth in
Exhibit A or Exhibit B, (b) provide an analysis of the chemical and
physical characteristics and properties of such products, and (c)
accept or reject such products based on such analysis. If the Beryllium
Products are rejected by the independent third party expert, Seller
shall have ninety (90) days from the date Seller receives notice of
such non-conformity to replace such non-conforming Beryllium Products
with conforming Beryllium Products, and Seller shall bear all cost of
the independent third party expert. If Seller fails to replace such
non-conforming Beryllium Products within such ninety (90)-day period
with Beryllium Products complying with the specifications, Buyer shall
be entitled to the remedies set forth in Section 11.1.
3.8 (Deleted in its entirety)
3.9 (Deleted in its entirety)
3.10 Title and Risk of Loss.
3.10.1 (Deleted in its entirety).
3.10.2 Title to the Beryllium Products in the Base Quantities shall transfer
to the Buyer upon Draw Down.
3.10.3 Risk of loss of or damage to any Beryllium Products shall transfer from
Seller to Buyer upon delivery to the Elmore Stockpile Facility.
3.10.4 (Deleted intentionally)
3.11 Ulba Production Facility Inspection. Seller shall cause Producer to
provide Buyer with reasonable access to Producer's Beryllium Products
production line at its Ulba facility on no less than a quarterly basis
during each Delivery Year, commencing with Delivery Year 2000. Such
access shall be for the sole purpose of inspecting Producer's
facilities to satisfy Buyer that such facilities can produce Beryllium
Products meeting Buyer's specifications.
3.12 (Deleted Intentionally)
IV. CONTRACT PRICE
4.1 Contract Price. Buyer agrees to pay Seller the Contract Price as
defined below.
Contract Price - CuBe Master Alloy
Contract Price (CuBe Master Alloy) = (Be Price x Be Content) +
(Cu Price x Cu Content)
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Where:
Be Price - price for Be contained in CuBe master alloy subject to Price
variation in terms of Base Price in this section and subject to Annual
Delivery Volume of CuBe master alloy as stated in Table 3 of Section
4.2 "Price Adjustment".
Be Content = The percent of Beryllium by weight contained in the
Beryllium Product.
Base Price for Be contained in CuBe master alloy amounts to US$ 52.98 /
lb or US$ 116.8 / kg.
CuBe Master Alloy Base Price Escalation:
- -------------------------------------------------
The Be Price applicable to all deliveries hereunder shall be the Base
Price (CuBe Master Alloy) adjusted as follows:
The Base Price for CuBe Master Alloy shall be increased by 2% during
each of the following Delivery years of the contract such that the Base
Price shall be as follows:
2003 = $52.98/lb or US$ 116.80/kg
2004 = $54.04/lb or US$ 119.14/kg
2005 = $55.12/lb or US$ 121.50/kg
2006 = $56.22/lb or US$ 123.94/kg
2007 = $57.35/lb or US$ 126.43/kg
If no notice is given no later than September 30, 2007 by the Seller or
Buyer, the Base Price shall remain at $57.35/lb or US$ 126.43/kg for
the balance of the Term of this Agreement.
Upon written notice given no later than September 30, 2007 by the
Seller or Buyer, the Base Price for CuBe Master Alloy for 2008 onwards
shall be renegotiated between the Parties.
If the Parties cannot agree on a new Base Price for CuBe Master Alloy
by December 31, 2007, then CuBe Master Alloy deliveries shall terminate
with the 2008 delivery volumes.
PCu= Cu Price = Cu price shall be the Cu price as calculated by the
Producer for each delivery pursuant to Section 3.
Subject to Producer's agreement the price shall be based on the
following formula:
PCu= (PLME + $0.14/kg) x 1.054,
Where:
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PLME - the price for 1kg of cathode Copper in US$ at the London Metals
Exchange within the month prior to Purchase
$0.14 - Copper transportation and rolling costs
1.054 - customs costs
Cu Content = 100% of the CuBe Master Alloy weight minus Be Content
CONTRACT PRICE BE METAL:
- ------------------------
Contract Price (Be Metal) = (Be Metal Price x Be Content)
Be Content =The percentage by weight of
Be in Ulba Grade B-1 vacuum cast
billet as provided in the
certification by the Seller for each
shipment, and verified by the buyer
or a mutually acceptable third party
analytical facility.
Where:
The Base Price for Be Metal contained in Be Metal of Ulba Grade B-1
vacuum cast billet, shall be US $84.10 /lb. or US$185.36/kg.
The Be Price for Be contained in Ulba Grade B-1 vacuum cast billet,
shall be the Base Price for Be Metal contained in Be Metal of Ulba
Grade B-1 vacuum cast billet, adjusted for:
Be Metal Base Price Escalation:
-------------------------------
The Be Price applicable to all deliveries hereunder shall be the Base
Price (Be Metal) adjusted as follows:
The Base Price for Be Metal shall be increased by 2% during each of the
following Delivery Years of the contract such that the Base Price shall
be as follows:
2003 = $84.10/lb or US$ 185.41/kg
2004 = $85.80/lb or US$ 189.16/kg
2005 = $87.85/lb or US$ 193.67/kg
2006 = $89.27/lb or US$ 196.80/kg
2007 = $91.05/lb or US$ 200.73/kg
If no notice is given no later than September 30, 2007 by the Seller or
Buyer, the Base Price shall remain at $91.05 or US$ 200.79/kg for the
balance of the Term of this Agreement.
Upon written notice given no later than September 30, 2007 by the
Seller or Buyer, the Base Price for Be Metal for 2008 onwards shall be
renegotiated between the Parties.
If the Parties cannot agree on a new Base Price for Be Metal by
December 31, 2007, then Be Metal deliveries shall terminate with the
2008 Delivery Volumes.
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If, at the request of the Buyer, Seller delivers Be Metal in form of
chunks Be-metal a $5.00/kg fee will be added to the Be Metal Price.
4.2 The price for Be contained in CuBe master alloy shall vary
subject to volumes of CuBe master alloy purchased by Buyer as
specified in Section 3.2, as follows:
Table 3
Annual quantity of Be Price for Be contained in
Contained in CuBe
master alloy delivery
(pounds/kgs) CuBe master alloy
---------------------------------- ------------------------------------------
50,000/22,650 and Base price +10%
below
---------------------------------- ------------------------------------------
50,000/22,650 to Base price +5%
75,000/33,975
---------------------------------- ------------------------------------------
75,000/33,975 and Base price
higher
---------------------------------- ------------------------------------------
If, in any Delivery Year, Buyer requires Beryllium in excess of the
Base Quantity amount for such Delivery Year plus the applicable
positive variation specified in section 3.1 for such Delivery Year,
Buyer may, at Buyer's option, contact Seller for the supply of all or a
portion of its additional requirements, and upon Buyer's request
therefore, Buyer, Seller and Producer shall negotiate in good faith for
the supply to Buyer by Seller, and Producer of such additional
quantities.
4.3 (Deleted in its entirety)
4.4 (Deleted in its entirety)
V. PAYMENT
5.1 Invoice for CuBe Master Alloy. If Buyer Draws Down CuBe Master Alloy
pursuant to Sections 3.4, 3.5 and 3.6, Seller shall issue an invoice
based on the Contract Price (CuBe Master Alloy) and one hundred percent
of the weight of the CuBe Master Alloy Drawn Down in accordance with
Articles III and IV.
5.2 Invoice for Be-Metal. If Buyer Draws Down Be-Metal pursuant to Sections
3.4 and 3.5, Seller shall issue an invoice based on the Contract Price
(Be-Metal) and one hundred percent of the weight of the Be-Metal Drawn
Down in accordance with Articles III and IV.
5.3 Payment by Buyer. Subject to verification and confirmation the
Beryllium Products to be Drawn Down by Buyer are in accordance with the
terms and conditions of this Agreement (including, without limitation,
the specifications set forth in Exhibit A or Exhibit B), Buyer shall
pay Seller's
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invoice within thirty (30) days after the Draw Down by Buyer of the
Beryllium Products to which such invoice relates or twenty-five (25)
days after receipt of Seller invoice, whichever is later. Subject to
compliance with applicable law, payment shall be made to Seller in U.S.
dollars to a bank account in the U.S. designated by Seller, which
designation may be changed upon fifty (50) days prior notice to Buyer.
In no event shall Buyer be required to make any payment in any currency
other than U.S. dollars. Subject to Section 5.4, payment by Buyer to
Seller in an amount equal to one hundred percent of any invoice issued
by Seller for Beryllium Products Drawn Down by Buyer shall constitute
full satisfaction of such invoice. Seller shall bear all applicable
bank cost and fees.
5.4 Late Payment. Except if payment is prohibited by applicable law or
prevented by an event of force majeure, if the full amount of Seller's
invoice is not paid on or within the time specified in Section 5.3,
such unpaid amount shall be subject to an interest charge from the due
date until the actual date of payment at a rate per annum equal to the
prime rate of interest published from time to time by Chase Manhattan
Bank, N.A., New York, New York.
VI. TAXES, DUTIES, TARIFFS
6.1 Seller shall be responsible for and shall pay all taxes, duties,
tariffs or levies imposed by any taxing authority in connection with
the production, transportation, export, import, delivery, sale or
receipt of Beryllium Products (collectively "Taxes") prior to or
coincident with Draw Down.
6.2 Buyer shall be responsible for and shall pay all Taxes after Draw Down.
Notwithstanding the foregoing, neither Seller nor Buyer shall be
obligated to pay any Taxes based on or measured by the net income of
the other.
VII. REPRESENTATIONS AND WARRANTIES
7.1 Representations and Warranties of Seller. Seller hereby represents and
warrants to Buyer that:
(a) Seller is a corporation duly organized and validly existing under
the laws of the State of New York, and has the legal right and all
necessary power and authority to execute and deliver and perform
in full all of its obligations under this Agreement. This
Agreement has been duly and validly executed by Nukem.
(b) Seller has the legal right and all necessary power and authority
to convey, at the time of Draw Down by Buyer hereunder, all
rights, title and interest in and to the Beryllium Products to
Buyer in accordance with the terms of this Agreement, free and
clear of any liens, equities, claims, prior assignments,
mortgages, charges, security interests, pledges, adverse claims,
restrictions or other encumbrances (collectively, "Liens"), unless
such Liens are required for financing the inventory arrangements
under this Agreement.
(c) the execution, delivery and performance of this Agreement by
Seller and consummation by such Seller of the transactions
contemplated hereby will not, with or without the giving of notice
or the lapse of time or both:
(i) violate, conflict with or result in a breach or default
under any provision of any organizational instrument
governing or relating to such Seller,
(ii) violate any statute, ordinance, rule, regulation, order,
judgment or decree of any court or of any governmental or
regulatory body, instrumentality, agency or authority
applicable to Seller or by which any of its properties or
assets may be bound
(iii) require any filing by Seller with, or require Seller to
obtain any permit, consent or approval of, or require such
Seller to give any notice to, any governmental or
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regulatory body, agency or authority other than as
specifically set forth in this Agreement, or
(iv) result in the violation or breach by Seller of, conflict
with, constitute (with or without due notice or lapse of
time or both) a default by Seller (or give rise to any
right of termination, cancellation, payment or
acceleration) under, or result in the creation of, any Lien
upon any of the properties or assets of Seller under, any
of the terms, conditions or provisions of any note, bond,
mortgage, indenture, license, franchise, permit, agreement,
lease, or other instrument or obligation to which Seller is
a party or by which it or its properties or assets may be
bound.
(d) this Agreement and the transactions contemplated hereby have been
duly and validly authorized by all necessary corporate action in
respect thereof on the part of Seller and, assuming the due
execution of this Agreement by Buyer, constitutes the legal, valid
and binding obligations of Seller, enforceable against Seller in
accordance with the respective terms, except as the enforceability
hereof may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium and other similar laws affecting the
enforcement of creditors' rights generally.
(e) Seller will hold all of the governmental and other permits,
licenses, consents and authorizations required in connection with
its performance of this Agreement and the transactions
contemplated hereby.
(f) there is no action, suit, proceeding at law or in equity,
arbitration or administrative or other proceeding by or before
(or, to the best knowledge of Seller, any investigation by) any
governmental or other instrumentality or agency pending, or to the
best knowledge of Seller, threatened, against or affecting Seller,
its properties or rights which could have an adverse direct effect
on the ability of Seller to perform its obligations under this
Agreement.
(g) the Beryllium Products delivered to the Elmore Stockpile Facility
will meet the quality, quantity and delivery requirements
established in Articles III and IV and in Exhibits A and B hereto.
(h) upon Draw Down by Buyer of the Base Quantity amount (plus any
applicable variation specified in Section 3.1) for any Delivery
Year (or any portion thereof), the Beryllium Products subject to
such Draw Down will be free and clear of any and all Liens. Seller
shall defend and indemnify Buyer, and hold it harmless, from and
against any and all claims, suits, actions, proceedings, debts,
accounts, damages, costs, liabilities, penalties, fines, losses,
and expenses, including reasonable attorney's fees and
disbursements, arising from or in connection with any Liens on any
Beryllium Products Drawn Down by Buyer hereunder.
(i) Seller is subject to civil, common and commercial law with respect
to its obligations under this Agreement, and the execution,
delivery and performance by Seller of this Agreement constitutes
and will constitute private and commercial acts rather than public
or governmental acts.
THE FOREGOING WARRANTIES ARE SELLER'S ONLY WARRANTIES AND ARE IN LIEU OF ALL
OTHER WARRANTIES, EXPRESSED OR IMPLIED, WHETHER ARISING OUT OF LAW, CUSTOM OR
USAGE. SELLER EXPRESSLY DISCLAIMS ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR
A PARTICULAR PURPOSE.
7.2 Representations and Warranties of Buyer. Buyer represents and warrants
to Seller that:
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(a) Buyer is a corporation duly organized and validly existing under
the laws of the State of Ohio, and has the legal right and all
necessary power and authority to execute, deliver and perform in
full all of its obligations under this Agreement. This Agreement
has been duly and validly executed by Buyer.
(b) the execution, delivery and performance of this Agreement by Buyer
and consummation by Buyer of the transactions contemplated hereby
will not, with or without the giving of notice or the lapse of
time or both:
(i) violate, conflict with or result in a breach or default
under any provision of any organizational instrument
governing or relating to Buyer,
(ii) violate any statute, ordinance, rule, regulation, order,
judgment or decree of any court or of any governmental or
regulatory body, instrumentality, agency or authority
applicable to Buyer or by which any of its properties or
assets may be bound,
(iii) require any filing by Buyer with, or require Buyer to
obtain any permit, consent or approval of, or require Buyer
to give any notice to, any governmental or regulatory body,
agency or authority other than as specifically set forth in
this Agreement, or
(iv) result in the violation or breach by Buyer of, conflict
with, constitute (with or without due notice or lapse of
time or both) a default by Buyer (or give rise to any right
of termination, cancellation, payment or acceleration)
under, or result in the creation of any Lien upon any of
the properties or assets of Buyer under, any of the terms,
conditions or provisions of any note, bond, mortgage,
indenture, license, franchise, permit, agreement, lease, or
other instrument or obligation to which Buyer is a party or
by which it or its properties or assets may be bound unless
required for financing purposes under this Agreement.
(c) this Agreement and the transactions contemplated hereby have been
duly and validly authorized by all necessary corporate action in
respect thereof on the part of Buyer and, assuming the due
execution of this Agreement by Seller, constitutes the legal,
valid and binding obligations of Buyer, enforceable against Buyer
in accordance with their respective terms, except as the
enforceability hereof may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium and other similar laws
affecting the enforcement of creditors' rights generally.
(d) Buyer holds or will hold all of the governmental and other
permits, licenses, consents and authorizations required in
connection with its performance of this Agreement and the
transactions contemplated hereby
THE FOREGOING WARRANTIES ARE BUYER'S ONLY WARRANTIES AND ARE IN LIEU OF ALL
OTHER WARRANTIES, EXPRESSED OR IMPLIED, WHETHER ARISING OUT OF LAW, CUSTOM OR
USAGE.
VIII. TERMINATION
8.1 Termination. Unless earlier terminated pursuant to its terms, this
Agreement shall terminate
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(i) in 2012 upon the purchase by Buyer of the Base Quantity
amount for Delivery Year 2012, or
(ii) in Seller's sole discretion upon termination of the
Producer Contract, whichever comes first.
The termination of this Agreement for any reason shall be without
prejudice to any other remedies that a Party may have under this
Agreement or under applicable law, and any liabilities of any Party to
any other Party for a breach of its obligations hereunder prior to
termination shall survive termination.
8.2 (Deleted in its entirety)
8.3 If Buyer does not Draw Down Beryllium Products for one year for reasons
attributable to Buyer, Seller shall have the right to terminate this
Agreement and neither Party shall be liable to the other for any cost
or damages incurred due to such termination.
IX. FORCE MAJEURE
9.1 Liability. Seller shall not be liable for any delay in, or suspension
of deliveries, or other inability to perform its obligations under this
Agreement resulting from any event of force majeure, and Buyer shall
not be liable for failure, refusal or inability to perform its
obligations under this Agreement resulting from any event of force
majeure, provided that the Party hereto subject to the event of force
majeure (a) promptly notifies the other Party of such event, its cause,
the extent of non-performance resulting therefrom and the means
proposed to be adopted to remedy or abate the force majeure event,
confirms such notice in writing as soon as possible after such Party
has learned of the force majeure event and notifies the other Party in
writing every thirty (30) days thereafter (such written notification
shall, on the first notification only, give a full and complete
explanation of the event, its cause, the extent of non-performance
resulting therefrom and the means proposed to be adopted to remedy or
abate the force majeure event, and thereafter such notice shall give
the status of the force majeure event and the actions such Party is
taking and any additional actions such Party proposes to take to remedy
or abate the force majeure event); (b) promptly supplies such
information about the force majeure event and its causes as may be
reasonably requested by the other Party; and (c) exercises due
diligence and employs all reasonable means to remove the cause of the
force majeure event or lessen its effect as expeditiously as possible.
Failure to provide timely written notice of any event of force majeure
pursuant to this Section 9.1, unless itself due to an event of force
majeure, shall preclude any Party from invoking an event of force
majeure in such instance. Any Party who is, by reason of an event of
force majeure, unable to perform any obligation or condition required
by this Agreement to be performed by it shall, in addition to complying
with the provisions set forth in the previous sentences of this Section
9.1 (i) provide written notice to the other Party immediately upon the
termination or abatement of the force majeure event and (ii) provide
written notice to the other Party as soon as it is known when
resumption of performance shall occur. Except as provided in Section
9.3, no event of force majeure shall invalidate this Agreement and,
upon termination of the event of force majeure, deliveries of Beryllium
Product shall resume pursuant to the terms and conditions of this
Agreement as expeditiously as possible after termination or sufficient
abatement of the force majeure event. Any deliveries not made or
accepted due to any event of force majeure shall be made at the end of
a force majeure period upon a schedule mutually agreed upon by the
Parties hereto.
9.2 Events of Force Majeure. Events of force majeure shall be events,
whether foreseeable or unforeseeable, beyond the reasonable control and
without the fault or negligence of the Party claiming such event,
including without limitation, floods, fires, accidents, strikes or
other labor disputes, acts of God, war, acts of public enemy, riot,
civil commotion, sabotage, failure to obtain governmental permits,
epidemic, quarantine restrictions, embargo, any act, delay or failure
to act
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on the part of any governmental authority, unavoidable delays in
transportation and, in the case of Seller, prohibition by any
government or authority in North America, Western Europe or the Far
East of the sale of such Beryllium Product by Seller, or any other
Force Majeure claimed by a third party, including, but not limited to
Producer. Notwithstanding the foregoing, the settlement of labor
disputes shall be entirely at the discretion of the Party affected by
such labor dispute.
9.3 Termination Due to Force Majeure.
(a) If the performance of Seller under this Agreement is adversely
affected by an event of force majeure that continues uninterrupted
for a period of ninety (90) days or more, Buyer shall have the
right to terminate this Agreement by providing written notice of
termination to the Party the performance of which is so affected,
such termination to be effective thirty (30) days after such
notice is given.
(b) If the performance of Buyer under this Agreement is adversely
affected by an event of force majeure that continues uninterrupted
for a period of ninety (90) days or more, Seller shall have the
right to terminate this Agreement by providing written notice of
termination to the Party the performance of which is so affected,
such termination to be effective thirty (30) days after such
notice is given
X COMPENSATION
10.1 In case of Buyer's refusal or inability to purchase the entire Minimum
Quantity of Beryllium Products, or purchase only a partial amount of
the Beryllium Products specified for any Delivery Year in Table 1 and
Table 2 of Section 3.1, Buyer shall pay Seller compensation to the
amount of 10% of the value of the Beryllium Products that the Buyer
should have purchased, but failed to do so due to non-force Majeure
causes.
10.2 In case the Buyer does not use Beryllium Metal for internal purposes
only as set forth in Section 3.1, and instead knowingly resells it to a
third party without the written consent of Seller and Producer, the
Buyer shall pay Seller compensation to the amount of 10% of the value
of the Beryllium Products that the Buyer purchased by Buyer from Seller
and sold to the third Parties.
XI. REMEDIES; LIMITATIONS OF LIABILITY
11.1 Failure to Make Scheduled Delivery. Except as a result of an event of
force majeure, if Buyer is unable to make a Draw Down from the
Stockpile by the time specified in its related purchase order for
reasons not attributable to any fault of Buyer or if the Beryllium
Products delivered do not conform to the specifications set forth in
Exhibits A or Exhibit B to this Agreement and Seller have failed to
cure the default in accordance with Section 3.5, Seller shall be liable
to pay damages to Buyer which shall include the difference in the price
hereunder and the price paid by Buyer for the purchase of replacement
Beryllium Products (if such price is higher than the price payable
hereunder) plus all other costs associated with such purchase, and
Buyer may, at its option, reduce the aggregate amount of Base Quantity
required to be purchased by Buyer under this Agreement in the Delivery
Year during which such purchase of replacement Beryllium Products
occurs or in the next Delivery Year by the number of pounds of such
replacement Beryllium Products.
11.2 Termination Due to Failure to Make Delivery. If Buyer is unable to make
Draw Downs from the Stockpile pursuant to Section 3.4 by the time
specified in its related purchase orders in two consecutive months for
reasons not attributable to any fault of Buyer (including, without
limitation, an event of force majeure), Buyer may, without prejudice to
any other rights or remedies it may have, terminate this Agreement by
notice to Seller specifying the date of such termination.
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11.3 Failure to Purchase Base Quantity. Except as a result of an event of
force majeure or a situation where a third party, to whom Buyer may
resell Beryllium Products purchased from Seller hereunder, defaults or
asserts force majeure under such third party's agreement with Buyer, if
Buyer fails to purchase the Base Quantity for any Delivery Year for
reasons not attributable to any fault of Seller, Buyer shall pay
damages to Seller which shall include the reasonable difference in the
price hereunder and the price received by Seller for the sale of such
Beryllium Product to third Parties (if such price is lower than the
price payable hereunder), plus all other costs associated with such
sale or disposal, and the aggregate amount of Base Quantity required to
be sold by Seller to Buyer under this Agreement in the next Delivery
Year shall be reduced by the number of pounds of Beryllium Product not
purchased by Buyer.
11.4 Sales to Third Parties. Notwithstanding any provision herein to the
contrary, if any third party to whom Buyer may sell Buyer's Products
containing Beryllium purchased under this Agreement defaults or asserts
an event of force majeure (as defined in Section 9.2) under its
agreement with Buyer, Buyer may suspend or cancel any purchases of
Beryllium Product under this Agreement that were to be resold to such
third Parties pursuant to such agreements. To the extent possible,
Buyer shall provide Seller with reasonable documentary evidence of such
default or force majeure by such third Parties.
11.5 No Consequential Damages. Unless otherwise specifically mentioned
herein, neither Party, whether as a result of breach of contract, tort
liability (including negligence and strict liability) or otherwise,
shall be responsible for any direct or consequential damages suffered
by any other Parties, including, without limitation, damage, loss or
expense incurred by such other Party as a result of any loss of use of,
or loss of production from, any facility, or loss incurred by such
other Party of any anticipated profits or special punitive, penal or
consequential losses of any kind.
XII. INDEMNIFICATION.
Subject to Section 10.5 of this Agreement, in addition to the
rights and remedies Seller may have under this Agreement or under
applicable law, if Buyer breaches its obligation to purchase Beryllium
Products under this Agreement Buyer shall indemnify Seller from any and
all costs, damages and other liabilities incurred under the Producer
Agreement caused by such breach.
XIII. CONFIDENTIALITY
This Agreement, the terms and conditions hereof and any
information and data obtained as a result of performance of this
Agreement are considered confidential. The Parties hereto agree to
refrain from disclosing this Agreement, its terms and conditions and
any information acquired hereunder to any third party without the prior
written consent of the other Party, except as may be required by a
court, governmental agency or proper discovery request or to comply
with applicable laws or governmental regulations. If any Party hereto
is required to make such disclosure, that Party shall so notify the
other Party of its obligations to do so and shall use its best efforts
to minimize such disclosure. Notwithstanding the foregoing, Buyer and
Seller retain the right to disclose the terms and conditions of this
Agreement to any financial institution as may be required for financing
purposes, and to Producer.
XIV. LICENSES, PERMITS AND AUTHORIZATIONS
14.1 Seller shall obtain any and all licenses, approvals or authorizations,
including, but not limited to, registration with MFER, that may be
lawfully required by any agency of any government in order that Seller
or any party on their behalf can legally sell, export, transport,
transfer and Deliver Beryllium Products to Buyer and upon Buyers
request, shall furnish to Buyer reasonable proof of such licenses,
approvals and authorizations. Buyer shall obtain, before any delivery
of Beryllium Products hereunder, any and all licenses, approvals, or
authorizations that may be lawfully
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required by any agency of any government in order that Buyer, or any
party acting on its behalf, can legally take delivery of, title to, or
possession of, the Beryllium Products and, upon Seller's request, shall
furnish to Seller and Seller's Agent reasonable proof of such licenses,
approvals and authorizations.
14.2 Within 30 days after Effectiveness of this Agreement, Buyer shall, with
regard to Be-Metal, provide Seller with a legalized original of the End
User Certificate, stating that Buyer will use such Be-Metal for its own
production purposes, issued by the Buyer for the import of such
Be-Metal from the Republic of Kazakhstan.
14.3 Buyer shall provide access to the Kazakhstan Republic authorities to
inspect the equipment for processing the beryllium metal into beryllium
copper alloy. Buyer shall guarantee that in cases where the Beryllium
metal is sold to countries that do not possess nuclear weapons, the
Buyer shall provide warranties from those countries' governmental
authorities that Beryllium purchased
a) Shall not be used for the production of nuclear weapons or any
other military purpose
b) Shall be under IAEA safeguards within the whole time of use
c) Shall be provided with Physical Protection to the extent specified
by the IAEA requirements
d) Shall be sold to the countries with no possession of nuclear
weapons only on terms as provided in pp a), b) and c).
XV. GOVERNING LAW; JURISDICTION
15.1 Governing Law. This Agreement shall be governed by the laws of the
State of New York without regard to its principles of conflicts of
laws, except that (a) the delivery term "CIF Elmore, Ohio, USA" shall
be construed under the INCOTERMS 1990 and (b) the United Nations
Convention on Contracts for the International Sale of Goods shall not
apply to this Agreement or the obligations hereunder. Each party hereto
unconditionally and irrevocably submits to the jurisdiction of the
Courts of the State of New York and/or the United States for the
Southern District of New York, and any appellate court from any
thereof, in any action or proceeding arising out of or relating to this
Agreement. A final judgment by such Courts in any such action or
proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided
by law. Each party hereto hereby irrevocably and unconditionally (i)
agrees that any and all claims, actions or proceedings in respect of
this Agreement may be heard and determined in the Courts of the State
of New York and/or the United States for the Southern District of New
York; (ii) waives, and agrees not to raise, any objection that it may
now or hereafter have to venue in any such court or that such court is
an inconvenient forum; (iii) agrees that Buyer shall have the right to
bring any legal proceedings (including a proceeding for the enforcement
of a judgment entered by any of the aforementioned courts) against such
Party in any other court or jurisdiction in accordance with applicable
law; (iv) agrees that Seller shall have the right to invoke any
judgment, settlement or other binding decision, entered in favor of or
against Seller in connection with a dispute with a third party about
the Beryllium Products or any right and obligation resulting from the
Producer Agreement; such judgment, settlement or other binding decision
shall be binding upon Buyer, and Buyer herewith voluntarily,
intentionally and knowingly waives its right to defend against any
finding of such judgment, settlement or decision, provided that Buyer
was granted the reasonable opportunity to participate in such dispute
on the Seller's side; and (v) WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY
ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR
OTHERWISE) ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE
OBLIGATIONS HEREUNDER OR THE ENFORCEMENT HEREOF.
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Each Party hereto further 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 at its address set forth
in Article XVII of this Agreement (or to such new address as may be
notified to the Parties to this Agreement pursuant to Article XVII),
such service to become effective thirty (30) days after such mailing.
Nothing herein shall affect the right of any party hereto to serve
process in any other manner permitted by law.
XVI. ASSIGNMENT
Unless necessary for the financing purposes set forth in
Section 2.5, no Party to this Agreement shall sell, assign, transfer,
convey, delegate, pledge, mortgage, hypothecate, charge, part with or
otherwise dispose of any or all of its rights, title, interest or
obligation in, to or under this Agreement without the prior consent in
writing of the other Party hereto, which consent shall not be
unreasonably withheld. None of the Buyer or Seller may assign or grant
a security interest in this Agreement without the prior written consent
of the other Party hereto. This Agreement shall inure to the benefit of
and shall be binding on the Parties hereto and their respective
successors and assigns to the extent such successors and assigns are
either permitted hereunder or have become successors or assigns by
operation of law. No assignment of this Agreement not permitted
hereunder shall relieve the assigning Party of its obligations under
this Agreement.
XVII. NOTICES
17. 1 Notices: Any notice or communication required to be
given in writing under this Agreement shall be given in the English
language by first class mail, telecopy or telegram addressed to a party
at its address hereinafter set forth and shall be deemed to have been
given when sent:
In the case of Seller, to:
RWE NUKEM, Inc.
39 Old Ridgebury Road
Section B-1, Box #9
Danbury, CT 06810-5100
Telephone: (203) 778-9420
Telecopy: (203) 778-9430
Attention: Director, Special Projects
In the case of Buyer, to:
Brush Wellman Inc.
17876 St. Clair Ave.
Cleveland, OH 44114
Telephone: (216) 383-6850
Telecopy: (216) 383-4005
Attention: President
Brush Wellman Inc.
Any Party to this Agreement may, by written notice to
the other Party pursuant to this Article XVII, change the
representative or the address to which such notices and communications
are to be sent.
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17.2 Bank and Shipping details of the Parties:
Seller:
RWE NUKEM, Inc.
Citibank FSB CT
999 High Ridge Road
Stamford, CT 06905
Routing No: 221172610
Account Number: 47527037
Account Name: RWE NUKEM, Inc.
Buyer:
Brush Wellman Inc.
National City Bank
Cleveland, OH 44001, USA
Account Number: 2690201
Account Name: Brush Wellman Inc.
Swift Code: NATCUS33
Consigner:
Ulba Metallurgical Plant
Open Stock Company
Account No. 101070270
Recipient's Bank: Zao Bank Tutunalem, Almaty
Account No: 2690201
Swift Code: ABKZKKX
Correspondent Bank:
American Express Bank
Swift Code: AEIBUS33
Consignee:
Brush Wellman Inc.
14710 W. Portage Road,
Elmore OH, 43416-9502, USA
XVIII. MISCELLANEOUS PROVISIONS
18.1 Headings; Interpretation. Article and Section headings set forth in
this Agreement are inserted only for convenience and shall have no
effect on the construction or interpretation of any provision of this
Agreement. All references to Articles, Sections, clauses, Schedules and
Exhibits in this Agreement are references to Articles, Sections and
clauses of, and Schedules and Exhibits to, this Agreement. Words such
as "hereto," "herein," "hereof," "hereby," "hereunder," and words of
similar import refer to this Agreement as a whole and not to any
particular Article, Section, paragraph, clause or sentence of this
Agreement. Unless the context of this Agreement expressly indicates
otherwise, the masculine, feminine or neuter gender, and the singular
or plural number, will each be deemed to include the others.
18.2 Survival. The termination, cancellation or expiration of this Agreement
shall not relieve Buyer or Seller of any rights or obligations provided
in this Agreement which by their terms survive
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termination, cancellation or expiration of this Agreement including,
without limitation, all remedial and confidentiality rights and
obligations.
18.3 Rounding of Figures. Whenever pursuant to this Agreement a numerical
figure is to be rounded or calculated to fewer digits than the number
of digits available, then unless otherwise specified herein, the
following procedures shall be applied:
(a) if the first digit discarded is less than five (5), the last digit
retained shall not be changed;
(b) if the first digit discarded is greater than five (5) or if such
first digit is five (5) and is followed by at least one (1) digit
other than zero (0), the last digit retained shall be increased by
one (1); and
(c) if the first digit discarded is five (5) and if such first digit
is followed by zero (0) or by no other digit, the last digit
retained shall:
(i) if it is an odd number, be increased by one; or
(ii) if it is an even number, be unchanged.
18.4 Severability. If any provision of this Agreement is invalid, illegal or
incapable of being enforced by any rule of law or public policy, all
other provisions of this Agreement shall nevertheless remain in full
force and effect so long as the economic or legal substance of the
transactions contemplated hereby is not affected in any manner adverse
to any Party hereto. Upon such determination that any provision is
invalid, illegal or incapable of being enforced, the Parties to this
Agreement shall negotiate in good faith to modify this Agreement so as
to effect the original intent of the Parties as closely as possible in
an acceptable manner to the end that the transactions contemplated
hereby are fulfilled.
18.5 Good Faith Dealings. The Parties to this Agreement shall execute and do
all acts and things necessary or desirable in order to implement and
give full effect to the provisions and purposes of this Agreement. The
Parties hereby agree to act in good faith at all times to reflect the
purposes of this Agreement and to act in good faith in all activities
and dealings arising out of this Agreement.
18.6 Amendment. Except as otherwise expressly provided in this Agreement,
this Agreement may be amended or modified only by an agreement in
writing that is signed by all of the Parties to this Agreement.
18.7 Language. This Agreement shall be executed in the English language.
This Agreement may also be executed in the Russian language.
Notwithstanding that a Russian language version of this Agreement has
been executed, the English language text of this Agreement executed by
the Parties hereto shall be the only authentic text governing the
rights and obligations of the Parties and shall be the only text used
in any legal action or proceeding relating to this Agreement.
18.8 Waiver. No default or delay on the part of any Party to this Agreement
in exercising any right, power or privilege under this Agreement shall
operate as a waiver thereof or of any right under this Agreement, nor
shall a single or partial exercise thereof preclude any other or
subsequent exercise thereof or the exercise of any other right, power
or privilege in the future.
18.9 Obligation to Make Payments in Dollars. The obligation of any Party
hereto to make payment hereunder or in connection with this Agreement
shall be an obligation to make payment in U.S. dollars and shall not be
discharged or satisfied by any tender, or any recovery pursuant to any
judgment, which is expressed in or converted into any currency other
than U.S. dollars, except to the extent such tender or recovery shall
result in the actual receipt by the non-paying Party
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entitled to receive such payment of the full amount of U.S. dollars
expressed to be payable in respect of such obligation. The obligation
of any Party hereto to make payments in U.S. dollars as aforesaid shall
be enforceable as an alternative or additional cause of action for the
purpose of recovery in U.S. dollars of the amount, if any, by which
such actual receipt shall fall short of the full amount of U.S. dollars
payable in respect of such obligation, and shall not be affected by
judgment being obtained for any other sums due under this Agreement.
18.10 Counterparts. This Agreement may be executed in any number of
counterparts and by the Parties hereto on separate counterparts, each
of which when so executed and delivered shall be an original, but all
of which shall together constitute one and the same instrument.
18.11 Expenses. Except as otherwise expressly provided herein, each Party
hereto shall pay its own expenses incidental to this Agreement and the
transactions contemplated hereby, including, without limitation, all
legal and accounting fees and disbursements, and the fees and expenses
of other advisors retained by it.
XIX. ENTIRE AGREEMENT
This Agreement constitutes and contains the entire and only
agreement between the Parties hereto relative to the subject matter
hereof and supersedes and cancels any and all pre-existing agreements,
letters of intent and understandings between the Parties hereto. This
Agreement supersedes and cancels (a) the Contract for the Sale and
Purchase of Beryllium Products, dated April 30, 1998, among Nukem,
Inc., Nukem Nuklear GmbH and Brush Wellman Inc.; (b) the Protocol of
Cooperation, dated April 29, 1998, between Nukem, Inc., Nukem Nuklear
GmbH, Brush Wellman Inc., Kazatomprom and Ulba Metallurgical Plant, (c)
Agreement Among Kazatomprom, Ulba Metallurgical Plant, NUKEM, Inc. and
Brush Wellman Inc. for the Sale and Purchase of Beryllium Products
dated December 21, 1999, (d) The Supply Agreement Between NUKEM, INC.
and Brush Wellman Inc. for the Sale and Purchase of Beryllium Products
dated September 7, 2000 as First Amended on December 1, 2000, Second
Amended on January 30, 2001, Third Amended on January 30, 2001, Fourth
Amended on September 6, 2001 and Fifth Amended on December 17, 2002 and
(e) Memorandum of Understanding dated June 10, 2000 between
Kazatomprom, Ulba Metallurgical Plant, NUKEM, Inc. and Brush Wellman
Inc. and each of the foregoing agreements or contracts identified in
clauses (a), (b) and (c) of this Article XIX shall no longer have any
force nor effect. It is the Parties' understanding that by executing
the Producer Agreement, containing a corresponding clause, Ulba
Metallurgical Plant and Kazatomprom each agree to such cancellation. It
is the Parties further understanding, that Seller acts insofar on
behalf of Nukem Nuklear GmbH. Any and all prior and contemporaneous
negotiations, agreements, letters of intent, memoranda of understanding
and preliminary drafts and prior versions of this Agreement, whether
signed or unsigned, between one or more of the Parties hereto leading
up to the execution hereof shall not be used by any Party to construe
the terms or affect the validity of this Agreement.
Nukem/Brush Wellman Supply Agreement Page 22
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XX. EFFECTIVENESS
Simultaneously with the execution of this Agreement, Seller
intends to execute the Producer Agreement. Notwithstanding the
execution of this Agreement, this Agreement shall not become valid and
enforceable unless and until the Producer Agreement and the Arc Furnace
Agreement have been executed and become valid and enforceable.
IN WITNESS WHEREOF, the undersigned have caused their duly authorized
representatives to execute this Agreement to be effective as of the
date first above written.
BRUSH WELLMAN INC.
BY:
NAME: Stephen Freemen
TITLE: President, Brush Wellman International
DATE: September 4, 2003
RWE NUKEM, INC.
BY:
NAME: James C. Cornell
TITLE: President
DATE: September 4, 2003