THIS AGREEMENT made as of the 1st day of June 1995
BETWEEN: Stillwater Mining Company
a Company duly incorporated under the laws of Montana
(hereinafter referred to as "Stillwater")
AND: The Westaim Corporation
a Corporation duly incorporated under
the laws of Alberta (hereinafter
referred to as "Westaim )
WHEREAS the Parties hereto wish to enter into an Agreement
whereby Stillwater agrees to deliver and sell the Product as herein defined, and
Westaim agrees to accept and buy the Product in accordance with the terms arid
conditions herein set forth:
NOW THEREFORE in consideration of the mutual convenants of the
parties, this Agreement witnesseth that Stillwater and Westaim have agreed as
follows:
1.0 DEFINITIONS
For the purposes of this Agreement
1.1 "ACCOUNTABLE NICKEL" means 97% of the contained nickel plus
cobalt.
1.2 "AGREEMENT" means this agreement and all amendments agreed to in
writing by the parties.
1.3 "LOT" means three truckloads of product.
1.4 "QUOTATIONAL PERIOD" for Accountable nickel in Product deliveries
in each calendar month means the month of receipt of the Product
at the The Delivery Point
1.6 "REFERENCE PRICE FOR NICKEL" means the monthly average of the LME
Cash Price for Nickel as quoted in Metals Week for the relevant
Quotational Period less US $0.15 per pound.
1.7 DELIVERY POINT" means specific point of delivery for solution at
or near Westaim's facilities in Fort Saskatchewan, Alberta,
Canada.
1.8 "TONNE" means 2204.6 pounds avoirdupois
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2.0 QUANTITY
2.1 Stillwater shall sell and deliver to Westaim the entire output of
Product, during the term of this Agreement from their plant,
which is estimated to be initially about 90 tonnes (three
truckloads) per week.
2.2 The quantity of nickel-copper sulphate solution is expected to
increase in proportion to the future matte treatment plant
capacity. Stillwater will evaluate the production of a dry
product, such as a mixed nickel-copper sulphate, as an
alternative to continued shipment of solution.
3.0 QUALITY
3.1 Westaim reserves the right to reject Product which does not
conform to the following specifications.
Typical Assay g/L Minimum/Maximum
Ni 50 to 60 50/gL(min)
Co 0.5 to 1.0
Cu 35 to 40
S 63 to 10
Fe <1.0 <2.0 g/L(max)
Pb <20.0
Mg <20.0
Mn <20.0 <50 mg/L
Cr <20.0
Zn <20.0
As 1.0 mg/L
Sb 0.1 to 10 mg/L
Se 5 to 10 mg/L <20 mg/L
Te 5 to 10 mg/L
pH 3.0
Except as noted, the solution should be free of any other
deleterious elements or materials.
3.2 If Stillwater produces a dry product such as a mixed
nickel-copper sulphate in lieu of solution, it is expected that
the elements shown on the previous page would be in similar
proportions in the dry product.
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4.0 DELIVERY
4.1 Stillwater shall deliver the Product to the Delivery Point in
tank trucks of at least 30 tonnes each.
4.2 Delivery of Product to Westaim shall be made DDP (Incoterms 1991)
the Delivery Point. Title to and risk of loss of Product shall
pass to Westaim upon delivery of product by Stillwater at the
Delivery Point.
4.3 All freight and insurance cost payable for delivery to the
Delivery Point shall be borne by Stillwater.
5.0 PRODUCT WEIGHING AND SAMPLING
Westaim shall weigh and sample the Product in Lots as follows:
5.1 The weight of each Lot shall be determined by Westaim at the
Delivery Point in accordance with standard commercial methods,
and such weight will be final for all purposes of this Agreement.
Promptly after the weighing of each Lot, Westaim shall deliver to
Stillwater two copies of Westaim's sworn weight certificate for
each such Lot.
5.2 The sampling of each Lot delivered hereunder shall be done by
Westaim at the Delivery Point according to standard commercial
methods.
5.3 Stillwater may at its request and expense have its
representatives present at the weighing and sampling, and sample
preparation of any Lot, provided however that the time for
weighing and sampling shall be decided by Westaim.
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6.0 PRODUCT ASSAYING
6.1 Each sample prepared in accordance with this Section 6.0 shall be
divided into four portions for analysis:
i) One for Stillwater
ii) One for Westaim
iii) One for umpire
iv) One to be held in reserve.
6.2 Stillwater and Westaim shall each analyze its portion for nickel
plus cobalt using standard commercial methods and shall exchange
its analysis with the other by cross-mailing on a mutually agreed
date. If Stillwater and Westaim's analyses are within the
splitting limit, the average shall be used for settlement. The
splitting for nickel plus cobalt shall be 0.3 g/L.
6.3 If Stillwater and Westaim's analyses are not within the splitting
limit and differences are not settled in a manner mutually
acceptable to Stillwater and Westaim, the parties may from time
to time appoint an umpire to analyze the umpire sample portion.
6.4 In the case of samples sent to umpire, if the umpire's analysis
falls between Westaim's analysis and Stillwater's analysis, or
outside by no more than the splitting limit, the arithmetic mean
of the umpire's analysis and the like analysis of Westaim or
Stillwater, whichever analysis shall be closer to the umpire's
analysis, shall govern for settlement purposes. If the umpire's
analysis falls outside Westaim's analysis and Stillwater's
analysis by more than the splitting limit, the arithmetic means
of Westaim's analysis and StilIwater's analysis shall govern. The
cost of the umpire assay shall be borne by the party whose result
is furthest from the umpire's. This cost shall be borne equally
by both parties when die umpire assay is the exact mean of the
exchanged assays.
The umpires shall be:
Xxxxxx Laboratories
000 Xxxxxx Xxx Xxxx, X.X.
Xxxxxxx, Xxxxxxx
Xxxxxx. X0X 0X0
or
Energy Laboratory
0000 Xxxxx Xxxxxxxx
Xxxxxxxx, Xxxxxxx.
XXX 00000
Tel: (406) 232 - 6325
acting in rotation, on an exchange by exchange basis, starting
with Xxxxxx Laboratories.
6.5 In the event payment for copper is made to Stillwater in respect
of Section 7.2, the splitting limit for copper shall be 0.3 g/L.
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6.6 All notification and correspondence shall be directed to:
Stillwater Mining Company
XX 00 Xxx 000
Xxx, Xxxxxxx
XXX 00000
Attention: Xxxxx Xxxxxx
Telefax: (000) 000-0000
Telephone: (000) 000-0000
or
The Xxxxxxx Xxxxxxxxxxx
Xxxxx 00x, X.X. Xxx 000
0000- 00xx Xxxxxx
Xxxxxxxx, Xxxxxxx
Xxxxxx X0X 0X0 or in the case of assay exchange
Attention: Xxxx Benz Attention: Xxxxxxxx Xxxxxx
Telefax: (000) 000-0000 Telefax: (000) 000-0000
Telephone: (000)000-0000 Telephone: (000)000-0000
7.0 PRICE AND PAYMENT TERMS
7.1 Subject to the terms of this Agreement, Westaim shall pay
Stillwater for Accountable Nickel delivered in any month an
amount equal to the Reference Price for Nickel for the applicable
Quotational Period less US $0.84 per pound, if such Reference
Price for Nickel is US $3.36 or less and if the Reference Price
for Nickel is greater than US $3.36 per pound an amount equal to
75% for the Reference Price for Nickel.
7,3 Payments to Stillwater shall be made by telegraphic transfer in
US currency by the end of the month following the Quotational
Period.
7.3 No payment will be made for copper in the Product until such time
as the US embargo on materials of Cuban origin is removed. At
that time Westaim will reopen discussions with Stillwater for
payment of the contained copper, subject to the terms under which
Westaim is able to sell its copper sulphide by product to another
party. For indicative purposes, the Accountable Copper would be
90% of contained and the payment for Accountable Copper would be
at the average LME Settlement price for copper for the second
month following delivery less US $0.50 per pound.
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8.0 TERM
8.1 This Agreement shall be for a term commencing on June 1, 1995 and
terminating on December 31, 1998.
9.0 FORCE MAJAURE
9.1 The term "force majeure", as employed in this Agreement, shall
mean an Act of God, strike, interference of trade union,
industrial dispute, lockout, act of the public enemy, war
(whether declared or not), blockade, revolution, riot,
insurrection, civil commotion, lightning, storm, flood,
explosion, fire, breakdown of machinery or equipment,
governmental restraint, restriction, or other action, embargoes,
unavailability of highway or railway freight facilities, and any
other cause, whether of the kind specifically enumerated above or
otherwise, which is not reasonably within the control of the
effected xxxxx and which is of such a nature as to delay,
curtail, or prevent timely action by the affected party.
9.2 If either party is rendered unable, wholly or in part by force
majeure, to carry out its obligations under this Agreement, that
party shall give to the other party prompt written notice of the
force majeure, with reasonable full particulars thereof,
whereupon the obligations of the party declaring the force
majeure shall be suspended during, but no longer than, the
continuance of the force majeure. The declaring party shall use
all reasonable diligence to remedy the force majeure as quickly
as practicable.
9.3 No right of a party shall be affected for failure or delay of the
party declaring to meet the conditions of this Agreement, which
failure is caused by one of the events of the force majeure
herein referred to.
9.4 The requirement that any force majeure shall be remedied with all
reasonable diligence shall not require the settlement of strikes,
lockouts, or other labour difficulty by the affected party on
terms not acceptable to it. How all such difficulties shall be
handled is entirely within the discretion of the affected party.
9.5 This clause shall provide relief only as long as the condition of
Force Majeure shall continue, except that it shall not relieve
Westaim from its obligation to pay Stillwater for Product
delivered prior to the commencement of the Force majeure.
10.0 GOVERNING LAW
10.1 The provisions of this Agreement and the conduct of the parties
in the performance of this Agreement shall be exclusively
governed by and construed in accordance with the laws in force in
the Province of Ontario, including all applicable federal laws of
Canada.
10.2 Any provisions of this Agreement that are contrary to, rendered
unenforceable by, the governing law shall be deemed to be
modified to the extent required to comply with such law or, if
necessary deleted without affecting the validity of the remaining
provisions of this Agreement
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11.0 WAIVER
No waiver of any breach under this Agreement, or of any available
remedy, shall be effective unless stated In writing and signed by
the party granting such waiver. Unless otherwise expressly
provided, the extent of any waiver granted shall be restricted w
the specific circumstances concerned and shall not extend to Any
other occurrence of such circumstances nor to any other
circumstances
12.0 ENTIRE AGREEMENT
This Agreement if the entire agreement between the parties hereto
with respect to the subject matter hereof and cancels and
supersedes any prior understandings and agreements with respect
thereto. There are no representations, warranties, terms,
conditions, undertakings or collateral agreements, express,
implied or statutory, between the parties other than as expressly
set forth in this Agreement. Variation of amendments hereto must
be specifically agreed upon in writing by both parties and no
variation or amendments shall be affected by the acknowledgment
or acceptance of purchase or shipping orders containing
provisions contradictory or supplementary to the provisions
hereof
13.0 NOTICES
All notices shall be given in writing by fax, telex, or other
electronic communication confirmed by registered air mail of the
same date. Notices shall be directed to:
Stillwater Mining Company
Processing Department
X.X. Xxx 0000
Xxxxxxxx, Xxxxxxx
XXX 00000
Attention: Xxxxx Xxxxxx
Telefax: (000) 000-0000
Telephone: (000) 000-0000
and notices to Westaim shall be directed to:
The Western Corporation
Xxxxx 000, X.X. Xxx 000
0000 00xx Xxxxxx
Xxxxxxxx, Xxxxxxx X0X 0X0
Attention: Xxxx Benz
Telephone: (000)000-0000
Tele fax: (000)000-0000
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Any such notice shall be deemed to have been given on the date of
sending (if transmitted during normal business hours and, if not, on the
following business day) of such fax, telex, or other form of electronic
communication.
IN WITNESS WHEREOF the parties hereto have executed this Agreement.
THE WESTAIM CORPORATION
By:_____________________________
Title:__________________________
STILLWATER MINING COMPANY
Title:___________________________
This Agreement has been duly executed on the 14th day of October 1996.
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