EXHIBIT 10.1
PGM SALES AGREEMENT
This PGM SALES AGREEMENT (this "Agreement") is made and entered into as
of this 1st day of March, 2004, by and between STILLWATER MINING COMPANY, a
Delaware corporation, whose address is 536 East Pike Avenue, Columbus, Montana
59019 ("SMC"), and DAIMLERCHRYSLER CORPORATION, a Delaware corporation, whose
address is 800 Chrysler Drive, Auburn Hills, Michigan 48326 ("DCC").
Section 1. Term. [Confidential]
Section 2. Quality. The palladium and platinum delivered pursuant to
this Agreement shall be in sponge form with 99.95% minimum purity of a brand
that carries the London Platinum and Palladium Market's "Good Delivery Status."
The rhodium delivered shall be in sponge form with 99.9% minimum purity.
Section 3. Quantity and Delivery. [Confidential]
On the last business day of each month, SMC will deliver 50% of the monthly
quantity of each Metal to a designated DCC account at Johnson Matthey Inc.,
Pennsylvania, and 50% of the monthly quantity of each Metal to a designated DCC
account at Heraeus Metal Processing, Santa Fe Springs, California. Title to and
risk of loss of the Metal shall pass from SMC to DCC upon delivery of the Metal
to DCC.
Section 4. Pricing. [Confidential]
Section 5. Payment Terms. Within two (2) business days after delivery
of Metal to the delivery location and confirmation of receipt from the delivery
location, DCC will pay SMC for the Metal delivered, plus any applicable sales,
use and transfer taxes, in immediately available funds. If DCC fails to pay for
any Metal when payment is due, SMC may suspend future deliveries of Metal to DCC
until such time as full payment 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 merchantable and of the quality set forth in
Section 2 and that SMC will convey good title thereto, free and clear of all
liens and encumbrances. 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 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 DCC of nonconformity. SMC shall not
be liable for any prospective or speculative profits or special, indirect,
consequential, punitive or exemplary damages.
Section 7. Default and Termination. [Confidential]
Section 8. Force Majeure. (a) 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 DCC shall not be excused by any event of force majeure
from making timely payments for Metal delivered prior to the effective date of
DCC's notice of force majeure.
(b) If SMC is unable to deliver to DCC all of the Metal it has
agreed to deliver hereunder due to force majeure, SMC will reimburse DCC for the
difference in price, if any, that DCC reasonably incurs to acquire such
undelivered Metal from a third party for a period not to exceed the lesser of 30
days or the number of days SMC fails to deliver such Metal. SMC shall have no
further obligation to reimburse DCC for any costs incurred by it to acquire
replacement Metal in connection with any force majeure event.
(c) 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, but in no event later than one hundred twenty (120) days after
the termination of this Agreement. 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.
Notices for DCC should be sent to:
DaimlerChrysler Corporation
CIMS 484-03-18
800 Chrysler Drive
Auburn Hills, MI 48326-2757
Attn: R. Matthew Baldwin, Senior Manager, Raw Materials
Purchasing, Supplier Management
Facsimile: (248) 576-2187
with a copy to:
DaimlerChrysler Corporation
CIMS 485-15-96
1000 Chrysler Drive
Auburn Hills, MI 48326-2766
Attn: General Counsel
Facsimile: (248) 512-1772
Notices for SMC should be sent to:
Stillwater Mining Company
717 Palladium Place
Columbus, Montana 59019
Attn: John Stark
Telephone: (406) 322-8712
Facsimile: (406) 322-8723
with a copy to:
Stillwater Mining Company
717 Palladium Place
Columbus, Montana 59019
Attn: James Binando
Telephone: (406) 322-8895
Facsimile: (406) 322-8703
9.2 Confidentiality. Each party will keep confidential the terms
of this Agreement pertaining to pricing, volume and term, except as disclosure
may be required by law.
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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.
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; Jurisdiction and Venue. The parties hereby
agree that this Agreement shall be construed in accordance with the laws of the
State of Michigan, without giving effect to any choice of law or conflict of law
provision or rule (whether of the State of Michigan or any other jurisdiction)
that would cause the application of the laws of any jurisdiction other than the
State of Michigan. Each party consents to the personal jurisdiction and venue of
the state and federal courts located in Chicago, Illinois in connection with any
controversy related to this Agreement and waives any argument that venue in any
such forum is not convenient.
9.10 Construction. This Agreement has been fully negotiated
between the parties. In interpreting this Agreement, there shall be no
presumption that either party drafted the language but rather the parties shall
be deemed to have shared equally in the drafting of the provisions of this
Agreement.
9.11 Limitation of Liability. Except as required under any
indemnity stated herein, neither party will be liable for prospective or
speculative profits or consequential, punitive or exemplary damages.
9.12 Indemnification. Each party (the "Indemnifying Party") will
defend, indemnify, and hold harmless the other party (the "Indemnified Party")
against all claims, liabilities, losses, damages, costs and settlement expenses,
including attorneys' fees ("Losses"), incurred by the Indemnified Party in
connection with injury or death of any person and damage or loss of any property
caused by any negligent act or omission or willful misconduct of the
Indemnifying Party or its employees, agents, or subcontractors in the
performance of this Agreement, either on the Indemnified Party's property or in
the course of their employment; except that the Indemnifying Party shall not be
required to defend, indemnify and hold harmless the Indemnified Party for any
Losses to the extent they are caused by the Indemnified Party's negligence or
willful misconduct.
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9.13 Required Compliance. Each party will comply in all material
respects with any and all applicable laws (including foreign, federal, state and
local laws) and regulations promulgated thereunder. Each party will defend,
indemnify and hold harmless the other party from and against any and all Losses
caused by the failure of the Indemnifying Party or the Indemnifying Party's
employees, agents and subcontractors to so comply with any applicable laws and
regulations.
9.14 Counterparts. This Agreement may be executed in multiple
counterparts, each of which shall be deemed an original, but all of which shall
constitute one and the same agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement effective
as of the date first above written.
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STILLWATER MINING COMPANY DAIMLERCHRYSLER CORPORATION
By: /s/ Frank R. McAllister By: /s/ Peter Rosenfeld
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Name: Frank R. McAllister Name: P. Rosenfeld
Title: Chairman and Chief Executive Officer Title: Executive Vice President
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