EXHIBIT 10.4
MATERIAL IN THIS DOCUMENT HAS BEEN
OMITTED PURSUANT TO A CONFIDENTIAL
TREATMENT REQUEST. THE OMITTED
MATERIAL HAS BEEN FILED SEPARATELY
WITH THE COMMISSION.
PALLADIUM AND PLATINUM SALES AGREEMENT
THIS PALLADIUM AND PLATINUM SALES AGREEMENT (this "Agreement") is made and
entered into this 27 day of August, 1998, by and between STILLWATER MINING
COMPANY, a Delaware corporation, whose address is 000 00xx Xxxxxx, Xxxxx 0000,
Xxxxxx, Xxxxxxxx ("SMC"), and MITSUBISHI CORPORATION, a Japanese corporation,
whose address is 0-0, Xxxxxxxxxx 0-Xxxxx, Xxxxxxx-Xx Xxxxx 000-0000 XXXXX
("MC").
RECITAL
WHEREAS, MC and SMC are interested in entering into an arrangement by this
Agreement whereby SMC will supply MC certain agreed upon amounts of palladium
and platinum sponge, .9995 minimum purity; and
WHEREAS, MC will be purchasing palladium and platinum for purposes of
reselling such palladium and platinum exclusively to Mitsubishi Motor
Corporation, a Japanese corporation ("MMC"), Netherland Car B.V. (Xxx Car), a
Dutch corporation ("Xxx Car"), and Mitsubishi Motor Manufacturing of America, a
Delaware corporation ("MMMA" and collectively with Xxx Car and MMMA, the "MMC
Group Companies"), for use by the MMC Group Companies in the manufacture of
automobiles worldwide;
AGREEMENT
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, SMC hereby agrees to sell and
deliver and MC hereby agrees to purchase palladium and platinum of the quantity
and quality hereinafter set forth, upon the following terms and conditions:
Section 1. Definitions and Terminology. Unless the context indicates
---------------------------
otherwise, capitalized terms used in this Agreement have the meaning set forth
in this Section 1.
Actual Monthly Production means the actual amount of refined, mined
Palladium out-turned by SMC or on behalf of SMC by a third party refinery during
any one calendar month.
Business Day means each Monday, Tuesday, Wednesday, Thursday and
Friday which is not a day on which banking institutions in the United States are
authorized or obligated by law or executive order to close.
Confidentiality Agreement means that certain Confidentiality
Agreement, dated as of July __, 1998, by and between SMC and MC.
Contract Year shall mean the twelve consecutive calendar months
commencing with January of each calendar year.
Destination means the Narita Airport by the 15th Business Day of
the Pricing Month.
Estimated Annual Production means the amount of annual production
of Palladium estimated by SMC for a Contract Year and included in a written
notification to MC by December 15th prior to such Contract Year.
Metal means the Palladium or Platinum to be sold under this
Agreement, the brand of which is Union Xxxxxxx, XX USA, Impala, Engelhard, INCO,
Falconbridge or Heraeus, PGP or such other brand as the parties may agree.
[***]
[***]
Ounce is a xxxx ounce equivalent to 31.1035 grams.
Palladium means refined palladium in sponge form with .9995 minimum
purity.
Platinum means refined platinum in sponge form with .9995 minimum
purity.
Pricing Day means any day on which there is published a [***]
Pricing Month means the month prior to delivery during which
pricing is determined pursuant to Section 4 of this Agreement.
[***]
Section 2. Term. The time period over which delivery shall occur under
----
this Agreement shall be from January 1, 1999, through and including December 7,
2003, unless otherwise extended or terminated pursuant to this Agreement.
Section 3. Quantity and Delivery. Beginning on January 7, 1999, SMC
---------------------
will sell and deliver Metal to the Destination, delivered duty unpaid, and MC
will purchase the quantities of Metal set forth in this Section 3, which shall
be delivered no later than the 7th day of the month following the Pricing Month.
All Metal to be sold in any one calendar month will be delivered to a single
Destination only, and SMC shall be under no obligation to accommodate MC's
request that any monthly shipment be split. In the event SMC agrees to
accommodate MC's request to split a shipment, MC will reimburse SMC for the
additional costs incurred by SMC in accommodating such request.
2
(a) Palladium. During the Contract Years 1999, 2000 and 2001, SMC
---------
will sell and deliver and MC will purchase on a monthly basis [***] of Actual
Monthly Production. During the Contract Years 2002 and 2003, SMC will sell and
deliver and MC will purchase on a monthly basis [***]. The parties acknowledge
that the Actual Monthly Production may fluctuate from time to time.
(b) Platinum. SMC will sell and deliver and MC will purchase on a
--------
monthly basis [***] ounces of Platinum.
(c) Notification of Estimated Annual Production and of Actual
---------------------------------------------------------
Monthly Production. Not later than the December 15th prior to each Contract
------------------
Year, SMC shall notify MC in writing of the Estimated Annual Production for such
Contract Year. Not later than the last Business Day of the month preceding the
Pricing Month, SMC will notify MC in writing of its Actual Monthly Production,
which amount will be priced during the Pricing Month, and delivered by the 7th
of the month following the Pricing Month. SMC will provide MC on a quarterly
basis with statements from its third party refiners, from which MC may verify
the Actual Monthly Production, and with an annual reconciliation of such amounts
to SMC's Annual Report on Form 10-K, filed with the United States Securities and
Exchange Commission (the "SEC").
(d) Estimates. Estimated Annual Production will be provided by SMC
---------
to MC for informational purposes only. SMC makes no warranty, commitment or
guaranty regarding the amount of Estimated Annual Production. Actual Monthly
Production may differ from estimated amounts due to a number of factors,
including but not limited to (i) fluctuations in ore grade, tons mined, crushed
or milled, (ii) variations in concentrator, smelter or refinery operations,
(iii) geological, technical, metallurgical, permitting, mining and processing
problems and (iv) availability of experienced employees.
By way of example, for delivery of Metal in January 1999, SMC will notify
MC of the Actual Monthly Production by the last Business Day in November 1998
and the Metal will be priced in December 1998 and delivered by January 7, 1999.
[***]
3
[***]
[***]
Section 4. Pricing. The price per Ounce to be paid to SMC by MC for
-------
the actual quantities of Metal delivered pursuant to Section 3 above shall be
based on the [***] for the Pricing Month less a discount and subject to certain
minimum and maximum prices as set forth below.
(a) Palladium. The price per Ounce to be paid to SMC by MC for
---------
the actual quantities of Palladium delivered during each month pursuant to
Section 3 above shall be based on the [***] for the Pricing Month less a
discount of [***] per Ounce. [***]
(b) Platinum. The price per Ounce to be paid to SMC by MC for
--------
the actual quantities of Platinum delivered during each month pursuant to
Section 3 above shall be based on the [***] for the Pricing Month less a
discount of [***] per Ounce. [***]
Section 5. Payment Terms. On the last Business Day of each Pricing
-------------
Month, SMC will inform MC in writing via facsimile as to the formula-based
pricing computations set forth in Section 4 above for the actual quantities of
Metal to be delivered by SMC pursuant to this Agreement during the following
month. Unless MC has provided SMC with Notice of disagreement with the pricing
computations, MC will forward such payment amount for 100% of the actual
4
quantities by wire transfer to SMC (pursuant to written wire transfer
instructions which will be provided by SMC) within two Business Days following
delivery of the Metal to the Destination (unless the parties mutually agree in
writing to adjust the delivery date). All payments will be made in U.S. Dollars.
If MC does not agree with SMC's pricing computations, MC shall Notify SMC of
such disagreement within two Business Days of MC's receipt of the pricing
computations and the parties shall seek resolution of such dispute pursuant to
the dispute resolution procedures set forth in Section 16 below. Without
derogating SMC's rights under this Agreement, any delay in payment by MC to SMC
shall bear interest calculated at the 3-month LIBOR (as quoted in the Wall
Street Journal on the date such payment was due) plus 3% from the date upon
which payment was due until the date full payment is received.
Section 6. Suspension of Delivery for Failure to Pay. Ten days after
-----------------------------------------
receipt by MC of written notice of MC's failure to pay pursuant to the terms of
Section 5 above, SMC may suspend delivery of Metal to MC until such time as
payment has been received by SMC. This right shall not be deemed to be an
exclusive right or remedy.
Section 7. Risk of Loss; Title. Title and risk of loss and liability
-------------------
for all Metal delivered hereunder shall pass to MC once the Metal is off-loaded
from the carrier at the Destination.
Section 8. Warranty. SMC warrants that the Metal supplied hereunder
--------
shall have a minimum purity of .9995, that SMC will convey good title thereto,
that the Metal will be delivered free and clear of all liens and encumbrances
payable by SMC and that the Metal will have been produced, handled and
transported to the Destination in accordance with all applicable federal, state
and local laws, rules and regulations. In respect of Metal supplied by physical
delivery to a Destination, SMC will furnish MC with an analysis and weight
certificate on such shipment of Metal.
OTHER THAN THOSE EXPRESSLY STATED IN THIS AGREEMENT, THERE ARE NO
REPRESENTATIONS, GUARANTEES OR WARRANTIES, EXPRESSED OR IMPLIED, 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.
Section 9. Default and Termination.
-----------------------
(a) Termination by MC. MC shall be entitled to terminate this Agreement
-----------------
by delivery of written Notice in the event:
(i) a receiver is appointed for SMC or MMC or any of their
respective assets, SMC or MMC files a voluntary petition in bankruptcy or any
form of reorganization, an involuntary petition in bankruptcy is filed against
SMC or MMC which is not dismissed with prejudice within 60 days of such filing,
or an assignment is made for the benefit of creditors of SMC or MMC;
5
(ii) SMC breaches any of the material terms or conditions of this
Agreement and the breach is not cured within 30 days of notice of such breach by
MC; or
(iii) SMC shall have Notified MC of the commencement of an event
of force majeure pursuant to Section 15 and such event of force majeure shall
have continued and remained in effect for a period of nine consecutive months.
(b) Termination by SMC. SMC shall be entitled to terminate this
------------------
Agreement in the event:
(i) a receiver is appointed for MC or any of its assets, MC files
a voluntary petition in bankruptcy or any form of reorganization, an involuntary
petition in bankruptcy is filed against MC which is not dismissed with prejudice
within 60 days of such filing, or an assignment is made for the benefit of
creditors of MC;
(ii) MC breaches any of the material terms or conditions of this
Agreement and the breach is not cured within 30 days of notice of such breach by
SMC;
(iii) MC shall have Notified SMC of the commencement of an event
of force majeure pursuant to Section 15 and such event of force majeure shall
have continued and remained in effect for a period of nine consecutive months;
or
(iv) MC does any of the following: (A) acquire, or agree, offer or
propose to acquire, directly or indirectly, from SMC or any other person, any
business or assets of, or securities issued by, SMC or any right, warrant or
option to acquire any of the foregoing; (B) propose to enter into, directly or
indirectly, any merger or business combination involving SMC or any of its
subsidiaries or to purchase, directly or indirectly, a material portion of the
assets of SMC or any of its subsidiaries; (C) make any proposal or request to
SMC or any of its officers or directors relating, directly or indirectly, to any
action referred to in clause (A) or (B) of this paragraph or to any modification
or waiver of any provision of this paragraph; (D) make or participate in,
directly or indirectly, any "solicitation" of "proxies" (as those terms are used
in the proxy rules of the SEC) to vote or seek to advise or influence any person
with respect to the voting of any voting securities of SMC or any of its
subsidiaries; (E) form, join or in any way participate in a "group" (within the
meaning of Section 13(d)(3) under the United States Securities Exchange Act of
1934, as amended) with respect to any voting securities of SMC or any of its
subsidiaries; (F) act alone or in concert with others to seek to control or
influence the management, Board of Directors or policies of SMC; (G) advise,
assist or enter into any discussions, negotiations, arrangements or
understandings with any other person with respect to any of the foregoing; or
(H) make any public statement or disclosure of any kind with respect to any
matter addressed by this paragraph (unless required by law) or take any other
action which might reasonably be expected to result in any such public
disclosure.
Notwithstanding the foregoing, SMC agrees that in the event of Section
9(b)(I) above, SMC shall offer MC the option for MC to assign and MMC to assume
MC's obligations under this
6
Agreement prior to terminating this Agreement; provided, however, that if MC
does not exercise the option within 45 days of receipt of written Notification
from SMC of the option offer, SMC shall be free to terminate this Agreement.
(c) Survival. Unless this Agreement is extended pursuant to Section 2
--------
or terminated pursuant to this Section 9, this Agreement will terminate on
December 31, 2003 (except that the provisions of Sections 5, 8, 11, 12, 13, 16,
19, 20 and 21 of this Agreement will survive such termination).
Section 10. Taxes and Assessments. All tariffs, taxes and duties levied
---------------------
on Metal delivered hereunder, or under any commercial documents relating to such
delivery, shall be borne by: (a) SMC when levied in the U.S. or any other
country through which the Metal subsequently passes prior to reaching the
Destination; provided, however, that any such tariffs, taxes and duties shall be
borne by MC if delivery is made in the U.S.; and (b) MC when levied in the
country in which the Destination is situated or any country through which the
Metal passes after delivery.
Section 11. Claims. Claims as to deficiency in quality or shortage in
------
quantity shall be made by written notice from MC to SMC within 30 days after the
delivery in question, or else any such claims shall be waived. MC or its nominee
may perform a laboratory analysis of the Metal within 30 days after delivery of
the Metal. If the laboratory analysis performed by MC or its nominee shows any
Metal to be below the minimum purity standard, MC will inform SMC within 24
hours of receipt by MC of the results of the laboratory analysis. In such
event, SMC shall arrange to have adequate samples of the Metal in doubt check-
assayed by an independent, certified good London Zurich assayer reasonably
acceptable to both parties, whose decision shall be final and binding upon the
parties and who in so deciding shall be deemed to be acting as an expert and not
as an arbitrator. The cost of such check-assay will be borne by the party
against whom an award is made. If the results of the check-assay indicate that
the Metal is below the minimum purity standard, MC will promptly return such
Metal in its original state and packing to SMC at SMC's expense, and SMC will
replace the Metal in doubt within five Business Days. If MC has put the Metal
into solution or the digestion process or has otherwise changed the form of the
Metal, SMC shall have no liability for breach of warranty hereunder. Except as
otherwise provided in this Section 11, all other claims shall be made by written
notice from MC to SMC within 60 days after the delivery in question, or else any
such claims shall be deemed to have been waived. EXCEPT AS OTHERWISE
SPECIFICALLY PROVIDED IN THIS AGREEMENT, NO CLAIMS WHATSOEVER SHALL BE MADE
HEREUNDER FOR SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES.
Section 12. Limitation of Liability. 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.
7
Section 13. Compliance with Laws. To the extent applicable, the parties
--------------------
agree to comply with all laws, ordinances rules, codes, regulations and lawful
orders of any federal, state or local governmental authority applicable to
performance of the Agreement.
Section 14. Force Majeure.
-------------
(a) Effect of Occurrence. 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 MC shall not be excused by any event of force majeure from
making timely payments for Metal delivered prior to the effective date of their
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 unless the Agreement is terminated pursuant to Section 9. 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. Prompt notice of force majeure shall be given by the party invoking it
to the other party, setting out the nature and full details thereof, the extent
of the interruption and the anticipated duration of the interruption.
(b) Definition. The term "force majeure" as employed herein,
----------
shall mean causes beyond the reasonable control of the parties, including, but
not limited to, acts of God, explosions, fires, floods, breakdowns or damage to
SMC's mine(s) or related equipment or facilities, breakdowns or damage to all
the manufacturing plants of the MMC Group Companies, failure of plant or
equipment to operate according to plans or specifications, war or warlike
hostilities, riots, strikes, labor disputes, lockouts, unavoidable accidents,
uncontrollable delays in transportation, non-availability of any adequate means
of transportation, any state or federal laws, regulations or requirements
(expressly including inability to obtain or amend necessary governmental
approvals, licenses or permits on reasonably acceptable terms), geological,
technical, metallurgical, mining, construction or processing problems, non-
availability of supplies, power shortages, court orders, acts of military
authority, acts or failures to act of federal, state or local agencies or
regulatory bodies and inability to obtain timely refining of appropriate
quantity of materials necessary to produce the required amounts of Metal;
provided, however, that performance shall be resumed within a reasonable period
of time after such cause has been removed and in the event not resumed within
nine months, the other party shall be entitled to terminate this Agreement
pursuant to Section 9; and provided further that neither party shall be required
against its will to adjust any labor dispute or to question the validity of or
to refrain from judicially testing the validity of any federal, state or local
order, regulation or statute or to refrain from pursuing its legal or equitable
remedies against any third party. Notwithstanding the foregoing, the parties
agree that this Section 14 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 15. Dispute Resolution. Except as otherwise provided in this
------------------
Agreement, the parties hereby agree that any dispute, controversy or claim
arising under this Agreement, or the breach thereof (a "Dispute"), shall first
be subject to the informal dispute resolution procedures set
8
forth in this Section 15. The party asserting the existence of a Dispute as to
the interpretation of any provision of this Agreement or the performance by the
other party of any of its obligations hereunder shall notify the other party in
writing of the nature of the asserted Dispute. Within 10 Business Days of
receipt of such notice, representatives from each party shall arrange and have a
personal or telephone conference in which they attempt to resolve such Dispute.
If those individuals are unable to resolve the Dispute within such time frame,
the Dispute shall be settled by arbitration administered in the State of New
York under the rules of the American Arbitration Association then in effect for
the resolution of commercial disputes by an arbitrator(s) selected by mutual
agreement of the parties, or by the American Arbitration Association absent such
mutual agreement, and judgment on the award rendered by the arbitrator(s) may be
entered in any court having jurisdiction thereof. Any findings of such
arbitration shall be final and binding on the parties, and all reasonable costs
(including attorneys' fees) incurred as a result of a Dispute being referred to
arbitration will be borne by the party against whom any award is made. This
Section 15 provides the exclusive means of resolving disputes under this
Agreement.
Section 16. Representations and Warranties. Each of the parties
------------------------------
represents and warrants as follows:
(a) Good Standing. That it is a corporation duly incorporated
-------------
and in good standing in its state of incorporation and that it is qualified to
do business and is in good standing in those states where necessary in order to
carry out the purposes of this Agreement;
(b) Performance. That it has the capacity to enter into and
-----------
perform this Agreement and all transactions contemplated herein and that all
corporate and other actions required to authorize it to enter into and perform
this Agreement have been properly taken;
(c) No Breach. That it will not breach any other agreement or
---------
arrangement by entering into or performing this Agreement; and
(d) Due Execution and Delivery. That this Agreement has been
--------------------------
duly executed and delivered by it and is valid and binding upon it and
enforceable against it in accordance with its terms; provided, however, that no
representation or warranty is made as to the remedy of specific performance or
other equitable remedies for the enforcement of this Agreement or any other
agreement contemplated hereby, and provided further that this representation is
limited by applicable bankruptcy, insolvency, moratorium, and other similar laws
affecting generally the rights and remedies of creditors and secured parties.
Section 17. Notices. Any notice, election, report or other
-------
correspondence (collectively, "Notices") required or permitted hereunder shall
be in writing and (i) delivered personally to an officer of the party to whom
directed; (ii) sent by registered or certified United States mail, postage
prepaid, return receipt requested; (iii) sent by reputable overnight courier; or
(iv) sent by facsimile transmission with confirmation of receipt. All such
Notices shall be addressed to the party to whom directed as follows:
9
SMC: Stillwater Mining Company
000 00xx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000
Attn: Vice President of Metals Marketing
with a copy to: Chief Financial Officer
Facsimile: (000) 000-0000
MC: Mitsubishi Corporation
0-0, Xxxxxxxxxx 0-Xxxxx, Xxxxxxx-Xx
Xxxxx 000-0000 XXXXX
Attn: Xx. Xxxxxxxxx Xxxxxxx
Facsimile: 00-0-0000-0000
with a copy to: Hoyu Nomi
Facsimile: 000-000-0000
Either party may, from time to time, change its address for future Notices
hereunder by Notice in accordance with this Section 17. All Notices shall be
complete and deemed to have been given or made when mailed or sent by overnight
courier, or upon personal delivery when delivered personally or when receipt is
confirmed when sent by facsimile transmission.
Section 18. Publicity. Neither SMC nor MC will issue or approve an
---------
advertisement, promotional material, news release or other form of publicity
concerning this Agreement or the transactions contemplated herein without the
prior approval of the other party as to the contents of such advertisement,
promotional material, news release or publicity and the timing of its release,
which approval cannot be unreasonably withheld.
Section 19. Confidentiality. The terms of the Confidentiality Agreement
---------------
shall continue in full force and effect.
Section 20. Consumption by MMC Group Companies. The parties acknowledge
----------------------------------
that MC will purchase Metal for purposes of reselling such Metal to the MMC
Group Companies, for consumption by the MMC Group Companies in the manufacture
of automobiles worldwide.
Section 21. Entire Agreement. This Agreement and the Confidentiality
----------------
Agreement represent the complete agreement between the parties hereto and
supersede 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.
Section 22. 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. It is not the intention of the parties to create,
nor shall this Agreement be construed to create, any mining, commercial or other
partnership. Neither party shall have any authority to act for or to assume any
obligation or responsibility on behalf of the other
10
party, except as otherwise expressly provided herein. The rights, duties,
obligations and liabilities of the parties shall be several and not joint or
collective. Each party shall be responsible only for its obligations as herein
set out and shall be liable only for its share of the costs and expenses as
provided herein. Each party shall indemnify, defend and hold harmless the other
party, its directors, officers, employees, agents and attorneys from and against
any and all losses, claims, damages and liabilities arising out of any act or
any assumption of liability by the indemnifying party, or any of its directors,
officers, employees, agents and attorneys done or undertaken, or apparently done
or undertaken, on behalf of the other party, except pursuant to the authority
expressly granted herein or as otherwise agreed in writing between the parties.
Section 23. No Implied Covenants. There are no implied covenants
--------------------
contained in this Agreement other than those of good faith and fair dealing.
Section 24. 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 with respect to (a) 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 one of
the parties, with respect to which such consent by the nonassigning party will
not be required.
Section 25. 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.
Section 26. Severability. Whenever possible, each provision of this
------------
Agreement shall be interpreted in such manner as to be effective and valid under
applicable law, but 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, but this Agreement
shall be reformed, construed and enforced in such jurisdiction as if such
invalid, illegal or unenforceable provision had never been contained herein.
11
Section 27. Governing Law. The parties to this Agreement are domiciled
-------------
in two different countries. In order to create greater certainty with respect
to their legal rights and obligations under this Agreement, the parties desire
to adopt as the substantive law of this Agreement the law of a state within the
United States which has highly developed commercial law and precedent and which
is not the domicile of either party. The parties hereby agree that this
Agreement shall be construed in accordance with the laws of the State of New
York as though this Agreement were performed in full in 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.
Section 28. Counterparts. This Agreement may be executed in
------------
counterparts, each of which shall be deemed an original and all of which
together shall constitute one instrument.
Section 29. Attorneys' Fees. In the event of any controversy, claim, or
---------------
dispute between the parties hereto, arising out of or relating to this Agreement
or the breach thereof, the prevailing party shall be entitled to recover from
the losing party reasonable expenses, attorneys' fees, and costs.
Section 30. Further Documents. At the request of either party, the
-----------------
parties shall execute and deliver any further instruments, agreements, documents
or other papers reasonably requested by that party to effect the purposes of
this Agreement and the transactions contemplated hereby.
12
IN WITNESS WHEREOF, the parties have executed this Agreement effective as
of the date first above written.
STILLWATER MINING COMPANY MITSUBISHI CORPORATION
By:/s/Xxxxxxx X. Xxxxxxx By:
------------------------ --------------------------
Name: Xxxxxxx X. Xxxxxxx Name:
Title:Chief Executive Officer ------------------------
Title:
-----------------------
By:/s/Xxxxxx X. Xxxxxx MITSUBISHI CORPORATION
------------------------
Name: Xxxxxx X. Xxxxxx
Title:Vice President Metals Marketing /s/X. Xxxxxxxxx
-----------------------------
X. XXXXXXXXX
General Manager
Metals Dept.
13
