EXHIBIT 10.38
PGM SALES AGREEMENT
This PGM SALES AGREEMENT (this "Agreement") is made and entered into
this 1st day of February, 2004, by and between STILLWATER MINING COMPANY, a
Delaware corporation, whose address is 536 East Pike Avenue, Columbus, Montana
59019 ("SMC"), and MITSUBISHI INTERNATIONAL CORPORATION, a New York corporation,
whose address is 520 Madison Avenue, New York, New York 10022-4223 ("MIC").
Section 1. Term. Subject to the provisions of Section 7, this
Agreement shall have a term from February 1, 2004, through and including January
31, 2006.
Section 2. Quality. The palladium delivered pursuant to this
Agreement shall be in ingot or sponge form with 99.95% minimum purity. If in
ingot form it shall be of a brand that carries the London Platinum and Palladium
Market's "Good Delivery Status." Form of material delivered will be mutually
agreed by the parties no later than the last business day of the month prior to
month of current delivery.
Section 3. Quantity and Delivery. [Confidential] On the last
business day of each pricing month, SMC will deliver Metal to a designated MIC
account at (a) Johnson Matthey Inc., Pennsylvania, or (b) Heraeus Metal
Processing, Santa Fe Springs, California or shall ship Metal to MIC at Narita
Airport, Tokyo, Japan (CIP Narita Airport). MIC shall give SMC the delivery
destination for the pricing month's allocation within 5 business days from the
end of that month. Title and risk of loss to the Metal shall pass from SMC to
MIC upon delivery or release of the Metal to MIC.
Section 4. Pricing. [Confidential]
Section 5. Payment Terms. Within two (2) business days after
delivery of Metal to the delivery location and confirmation receipt from the
delivery location, MIC will forward payment to SMC for the Metal delivered. If
MIC fails to pay for any Metal when payment is due, SMC may suspend future
deliveries of Metal to MIC until such time as full payment for overdue amounts
has been received by SMC. This right shall not be deemed to be an exclusive
right or remedy.
Section 6. Warranty; Limitation of Liability. SMC warrants that
the Metal supplied hereunder shall be of the quality set forth in Section 2 and
that SMC will convey good title thereto. OTHER THAN THOSE EXPRESSLY STATED IN
THIS AGREEMENT, SMC MAKES NO REPRESENTATIONS, GUARANTEES OR WARRANTIES,
EXPRESSED OR IMPLIED, OF ANY KIND. WITHOUT LIMITING THE GENERALITY OF THE
FOREGOING, SMC EXPRESSLY DISCLAIMS ANY WARRANTY OF MERCHANTABILITY, FITNESS, OR
SUITABILITY FOR A PARTICULAR PURPOSE OR USE NOTWITHSTANDING ANY COURSE OF
PERFORMANCE, USAGE OF TRADE OR LACK THEREOF INCONSISTENT WITH THIS SECTION.
SMC's sole liability for breach of warranty shall be limited to replacement of
the nonconforming Metal with conforming Metal within ten (10) business days of
notice from MIC of nonconformity. SMC shall not be liable for any prospective or
speculative profits or special, indirect, consequential, punitive or exemplary
damages, and SMC's liability with respect to this Agreement or any action in
connection herewith whether in contract, tort, or otherwise shall not exceed the
price of that portion of the Metal on which liability is asserted.
Section 7. Default and Termination. [Confidential] Either party
shall be entitled to terminate this Agreement (a) in the event of breach by the
other party of any of the material terms or conditions of this Agreement, which
breach is not cured within ten (10) days of notice of such breach by the
non-breaching party, (b) for convenience upon 60 days' prior written notice, or
(c) in the event of any sale of all or substantially all of the assets or stock
of such party or any merger or other consolidation.
Section 8. Force Majeure. In the event that either party is
rendered unable, wholly or in part, by force majeure applying to it, to carry
out its obligations under this Agreement, it is agreed that such obligations of
such party, so far as they are affected by such force majeure, shall be
suspended during the continuance of any inability so caused, but for no longer
period; provided that MIC shall not be excused by any event of force majeure
from making timely payments for Metal delivered prior to the effective date of
MIC's notice of force majeure. The parties agree that the various periods and
terms provided for herein shall be extended for a period equivalent to such
period of force majeure. The party claiming that an event of force majeure has
occurred will promptly notify the other party of the commencement and
termination of any event of force majeure. The term "force majeure" as employed
herein, shall mean causes beyond the reasonable control of a party. The parties
agree that this Section 8 is not intended to provide relief from economic
conditions such as, but not limited to, market situations that provide lower or
higher prices than in effect under this Agreement.
Section 9. Miscellaneous.
9.1 Notices. All Notices shall be complete and deemed to have been
given or made when mailed or sent by overnight courier or electronic mail; upon
personal delivery when delivered personally; or when receipt is confirmed when
sent by facsimile transmission.
9.2 Confidentiality. Each party will keep the terms of this
Agreement confidential except as disclosure may be required by law, rule
regulation or legal or judicial process (it being understood that the terms of
this Agreement may be disclosed to each party's affiliates, and advisors who
agree to maintain such confidentiality).
9.3 Entire Agreement. This Agreement represents the complete
agreement between the parties hereto and supersedes all prior or contemporaneous
oral or written agreements of the parties to the extent they relate in any way
to the subject matter hereof or thereof.
9.4 Relationship of the Parties. Nothing contained in this
Agreement shall be deemed to constitute either party the partner of the other,
nor, except as otherwise herein expressly provided, to constitute either party
the agent or legal representative of the other, nor to create any fiduciary
relationship between them.
9.5 No Implied Covenants. There are no implied covenants contained
in this Agreement other than those of good faith and fair dealing.
9.6 Binding Effect; No Assignment. This Agreement shall bind and
inure to the benefit of and be enforceable by the parties hereto and may not be
assigned by either party without the consent of the other party, which consent
shall not be unreasonably withheld, except that no consent shall be required in
respect of (i) any assignment to provide security in connection with any
financing, expressly including, by way of example and not limitation,
assignments of royalty, overriding royalties or net profits interests or
production payments, or (b) any merger, consolidation or other reorganization or
transfer by operation of law, or by purchase of the business of or substantially
all of the assets of either party.
9.7 Amendment and Waiver. Except as otherwise provided herein, no
modification, amendment or waiver of any provision of this Agreement shall be
effective against either party unless such modification, amendment or waiver is
approved in writing by the parties hereto. The failure by either party to demand
strict performance and compliance with any part of this Agreement during the
term of this Agreement shall not be deemed to be a waiver of the rights of such
party under this Agreement or by operation of law. Any waiver by either party of
a breach of any provision of this Agreement shall not operate or be construed as
a waiver of any subsequent breach thereof.
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9.8 Severability. If any provision of this Agreement is held to be
invalid, illegal or unenforceable in any respect under any applicable law or
rule in any jurisdiction, such invalidity, illegality or unenforceability shall
not affect the validity, legality or enforceability of any other provision of
this Agreement in such jurisdiction or affect the validity, legality or
enforceability of any provision in any other jurisdiction.
9.9 Governing Law. The parties hereby agree that this Agreement
shall be construed in accordance with the laws of the State of New York, without
giving effect to any choice of law or conflict of law provision or rule (whether
of the State of New York or any other jurisdiction) that would cause the
application of the laws of any jurisdiction other than the State of New York.
The parties hereby (a) irrevocably and unconditionally submit to the exclusive
jurisdiction of the federal and state courts located in the County of New York
in the State of New York with respect to the adjudication of any suit, action or
proceeding arising out of or relating to this Agreement and (b) irrevocably and
unconditionally waive any objection to the laying of venue of any such suit ,
action or proceeding brought in any such court and any claim that any such suit,
action or proceeding brought in any such court has been brought in an
inconvenient forum.
IN WITNESS WHEREOF, the parties have executed this Agreement effective
as of the date first above written.
STILLWATER MINING COMPANY MITSUBISHI INTERNATIONAL
CORPORATION
By: /s/ Frank R. McAllister By: /s/ Sadahiko Hanegi
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Name: Frank R. McAllister Name: Sadahiko Hangi
Title: Chairman and Chief Executive Officer Title: Division Senior Vice
President, NFM Div
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