EXHIBIT 10.2
SECOND AMENDMENT TO PURCHASE AND SALE AGREEMENT
THIS SECOND AMENDMENT TO PURCHASE AND SALE AGREEMENT (the "Second Amendment")
reference _______, dated and effective as of this [ * ] of [ * ] is by and
between ROLLS-ROYCE plc, whose registered office is at 65 Buckingham Gate,
London, SW1E 6AT, England, incorporated under the laws of England (Reg. No.
1003142) ("R-R"), and TITANIUM METALS CORPORATION, whose corporate headquarters
are located at 1999 Broadway, Suite 4300, Denver, CO 80202, USA, a Delaware
corporation ("TIMET"). TIMET and R-R are together referred to as the "Parties."
RECITALS
A. R-R and TIMET have executed an Agreement for Purchase and Sale of Titanium
dated as of [ * ] as amended by the First Amendment to Purchase and Sale
Agreement dated as of [ * ] (together, the "Master Agreement"). Certain
capitalized terms used in this Second Amendment but not defined herein
shall have the meanings ascribed to them in the Master Agreement or in the
Exhibits and Schedules thereto, all of which together form and constitute
the Master Agreement.
B. R-R and TIMET wish to amend the Master Agreement by the terms of this
Second Amendment.
C. Upon execution by both Parties of this Second Amendment, the Master
Agreement shall be amended by this Second Amendment, and, thereafter, the
term "Master Agreement" shall mean that agreement as so amended.
NOW, THEREFORE, the Parties agree that the Master Agreement is amended follows:
AMENDMENTS
1. PRICING MATTERS
1.1 Section 4.1 of the Master Agreement shall be deleted in its entirety and
replaced with the following new Section 4.1:
"4.1 [ * ] for deliveries of TIMET Titanium Products [ * ] through [ * ]
shall be as set forth on Schedule 1 to the Common Terms."
1.2 Section 4.3 of the Master Agreement shall be deleted in its entirety and
replaced with the following new Section 4.3:
"4.3 [ * ] for deliveries of TIMET Titanium Products [ * ] shall be [ * ]
based upon the application of the formula set forth in Section 3.2 of
the Common Terms. TIMET will provide R-R, no later than [ * ] of each
year (commencing [ * ]), with TIMET's calculation of the [ * ] for [ *
]."
1.3 Sections 3.1 and 3.2 of the Common Terms shall be deleted in their entirety
and replaced with the following new Sections 3.1 and 3.2:
"3.1 Pricing for all TIMET Titanium Products sold to Purchaser will be as
set forth on Schedule 1 to these Common Terms, a current copy of which
is attached hereto, except (a) as otherwise agreed in writing by R-R
and TIMET, or (b) as otherwise provided in this Article 3 for TIMET
Titanium Products [ * ]. Pricing for TIMET Titanium Products not
specifically identified in Schedule 1 will be established by the
mutual agreement of R-R and TIMET for all Purchase Agreements (R-R
acting as agent for Purchaser in such case). Such pricing will be
established by applying the [ * ] used in developing the original
Schedule 1. Any such additional prices for new or modified TIMET
Titanium Products will be evidenced by the execution of an amended and
restated Schedule 1 signed by both R-R and TIMET which shall set forth
the effective date of such amended and restated Schedule 1 and shall
thereupon be substituted for the then-current Schedule 1. Schedule 1
shall be redacted, as appropriate from time to time, to contain only
those TIMET Titanium Products being purchased by Purchaser."
"3.2 For TIMET Titanium Products [ * ], the prices set forth in the
then-current Schedule 1 are subject to [ * ], subject to an [ * ] not
to exceed [ * ], effective [ * ] of [ * ], based upon the following
formula:
[ * ]
where:
[ * ] is the [ * ] for the given [ * ] to be applied for the [ *
](which price shall reflect the [ * ] of any [ * ] as the result
of any [ * ], as provided in Section 3.5 of these Common Terms
and Article 6 of the Master Agreement).
[ * ] is the [ * ] for the given [ * ] (i.e., [ * ] in which the
[ * ] is being made to be [ * ] for the [ * ].
[ * ] is equal to [ * ],
where [ * ] is the value of the [ * ]and [ * ] is the value of [
* ].
[ * ] is equal to [ * ],
where [ * ] is the value of the [ * ], and [ * ] is the value of
[ * ].
[ * ] is equal to [ * ],
where [ * ] is the value of the [ * ], and [ * ] is the value of
[ * ].
Each successive calculation shall be [ * ], except that [ * ]
shall be [ * ]. All referenced [ * ] values to be used in the
above formula shall be [ * ] values as of [ * ] in the [ * ]
specified, and the [ * ] for such dates shall be [ * ] not [ *
]."
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2. MISCELLANEOUS
Section 7 of the Master Agreement shall be amended by adding thereto a new
Section 7.6, as follows:
"7.6 Without limiting any existing obligation of R-R to TIMET under the
Master Agreement, R-R agrees that it will use its best efforts to
support the inclusion of TIMET as a [ * ] in the [ * ] and the [ * ]
for the [ * ], including without limitation working to support TIMET
with any [ * ] or [ * ] that might be necessary or useful in relation
to such [ * ]."
3. VOLUME COMMITMENT
The version of Section 4.1(a) of the Common Terms that is applicable to R-R and
contained in Section 8.1 of the Master Agreement shall be deleted and replaced
in its entirety by the following new Section 4.1(a) to be included in Section
8.1 of the Master Agreement:
"4.1(a) a volume of TIMET Titanium Products comprised of [ * ] not less
that the greater of the volume identified in subpart (i) or the volume
identified in subpart (ii) below:
(i) the difference between (A) [ * ] and (B) the [ * ] of [ * ]
for such [ * ]; or
(ii) for all periods ending on or prior to [ * ]: the difference
between (A) [ * ] for [ * ] for such [ * ] and (B) the [ * ]
of [ * ] for such [ * ]; for [ * ] through [ * ]: the
difference between (A) [ * ] for [ * ] for such [ * ] and
(B) the [ * ] of [ * ] for such [ * ]; and for all periods
commencing on or after [ * ]: the difference between (A) [ *
] for [ * ] for such [ * ] and (B) the [ * ] of [ * ] for
such [ * ]; and"
4. [ * ] LIMITATIONS
Section 2.10 of the Common Terms shall be deleted in its entirety and replaced
with the following new Section 2.10:
"2.10Excluded Volume" means, for any given [ * ], the aggregate volume ([ *
]) of all Titanium Products purchased directly or indirectly by
Purchaser for end use in an [ * ] from a titanium producer other than
TIMET solely for one of the following reasons: (a) [ * ] was not a [ *
] of the [ * ] (provided [ * ] had previously been given [ * ] and a [
* ], (b) the [ * ] in such instance (provided that in the case such [
* ] of a [ * ] is the result [ * ] has been [ * ], (c) [ * ] did not
agree to [ * ] acceptable to Purchaser [ * ] because such [ * ] would
have [ * ], or (d) [ * ], provided such [ * ] may not [ * ]."
5. TERM; TERMINATION
5.1 Section 5.1 of the Common Terms shall be deleted in its entirety and
replaced with the following new Section 5.1:
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"5.1 The Purchase Agreement shall expire on [ * ], if not sooner terminated
in accordance with another provision of this Article 5. TIMET shall
not be obligated to accept any Purchase Order calling for delivery of
a TIMET Titanium Product after such date. The parties agree, however,
that during [ * ] they shall meet to discuss the terms on which they
might mutually agree to extend this agreement beyond [ * ].
5.2 R-R and TIMET expressly agree and intend that in consideration of their
mutual agreement to enter into this Second Amendment, each of them
respectively waives any rights, conditions or circumstances that existed or
may have existed prior to the execution of this Second Amendment that would
have permitted either party to exercise its termination rights under the
Master Agreement, whether arising under Sections 5.1, 5.2, or 5.3 of the
Master Agreement, Section 5.2 of the Common Terms, or otherwise.
6. RENUMBERING OF CROSS REFERENCES TO AMENDED SECTIONS. To the extent any
sections in the Master Agreement are renumbered upon the effectiveness of
this Second Amendment, all cross-references to such renumbered sections
contained in any part of the Master Agreement shall be deemed to be
revised, as appropriate, to refer to the renumbered section.
7. CONTINUING EFFECTIVENESS OF MASTER AGREEMENT. Except as expressly amended
by this Second Amendment, the Master Agreement shall remain in full force
and effect.
8. COUNTERPARTS. This Second Amendment may be executed in multiple, identical
counterparts, each of which shall be an original, but all of which together
shall constitute one and the same agreement.
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IN WITNESS WHEREOF, this Second Amendment to Purchase and Sale Agreement is
executed by an authorized representative of each Party to be effective as of the
date first hereinabove set forth.
ROLLS-ROYCE plc
By:______________________________________
Name:____________________________________
Title:___________________________________
Notices to:
Rolls-Royce plc
P.O. Box 31
Derby DE24 8BJ, England
Attn: [ * ]
Purchasing Executive--Castings and Raw Materials
Facsimile No.: [ * ]
TITANIUM METALS CORPORATION
By:______________________________________
Name:____________________________________
Title:___________________________________
Notices to: With a copy to:
- ---------- --------------
TIMET UK Limited Titanium Metals Corporation
P.O. Box 704 1999 Broadway, Suite 4300
Witton Denver, Colorado 80202
Birmingham B6 7UR USA
England Attn: Vice President, General Counsel
Attn: Director--Sales and Marketing & Secretary
Facsimile No.: [ * ] Facsimile No.: [ * ]
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