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EXHIBIT 10.22
MATERIAL IN THIS DOCUMENT HAS BEEN
OMITTED PURSUANT TO A CONFIDENTIAL
TREATMENT REQUEST. THE OMITTED MATERIAL
HAS BEEN FILED SEPARATELY
WITH THE COMMISSION.
REFINING AGREEMENT
This REFINING AGREEMENT (this "Agreement") is by and between the CATALYST
AND CHEMICALS DIVISION OF XXXXXXX XXXXXXX INC., a Pennsylvania corporation
("JM"), and STILLWATER MINING COMPANY, a Delaware corporation ("SMC").
WITNESSETH:
WHEREAS, JM owns and operates certain facilities located at 0000 Xxxxx
Xxxxx, Xxxx Xxxxxxxx, Xxx Xxxxxx (the "Facility"), capable of treating Filter
Cake (as such term is defined herein);
WHEREAS, SMC intends to mine, mill and process minerals from its present
mine in Xxx, Montana as described herein (the "Stillwater Mine"), from its
planned mine at the East Boulder Project currently under development and any
other present or future mine (other than the Stillwater Mine) within the X-X
Reef (collectively, the "East Boulder Mine") and [***] and to receive and
process secondary feeds from other sources ("Secondary Feeds") and toll
processing material from third parties; and
WHEREAS, SMC desires JM to treat and refine Filter Cake produced by SMC
from the Mines, Secondary Feeds, and Toll Materials; JM desires to treat and
refine the Filter Cake at its Facility; and
WHEREAS, SMC and JM have previously executed that certain Refining
Agreement, dated as of October 1, 1998 (the "1998 Agreement"), whereby JM agreed
to treat and refine the Filter Cake produced by SMC, and the parties are
entering into this Agreement, which will, effective as of the date of the
signature of the last signing party hereto (the "Effective Date"), supersede the
1998 Agreement.
NOW THEREFORE, for and in consideration of the premises and of the several
and mutual agreements herein contained, value and sufficiency being hereby
acknowledged, the Parties agree as follows:
1. DEFINITIONS
Throughout this Agreement, the following terms shall mean:
1.1 AGREED CONTENT means the concentration of a metal found in the Filter
Cake as determined in accordance with Section 12 hereof and on which
the return of metals by JM to SMC and the payment of treatment,
refining and assaying charges by SMC to JM shall be based, subject to
adjustment, if any, in the event the Final Assay differs from such
amount.
1.2 [***] shall have the meaning set forth in Section 5.2 hereof.
1.3 AVAILABLE MONTHLY PRODUCTION means the actual amount of mined metal
produced from the Mines during any one calendar month.
1.4 BUSINESS DAY OR BUSINESS DAYS 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.
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1.5 DATE OF DELIVERY means the date the Filter Cake is received by JM as
acknowledged in accordance with Section 6.3 hereof.
1.6 DAY OR DAYS means a calendar day or days.
1.7 EAST BOULDER MINE means SMC's planned mine located in Big Timber,
Montana, approximately 13 miles from the Stillwater Mine.
1.8 FACILITY means JM's facilities capable of treating and refining Filter
Cake located at 0000 Xxxxx Xxxxx, Xxxx Xxxxxxxx, Xxx Xxxxxx.
1.9 FILTER CAKE means materials produced by SMC from the Mines, Secondary
Feeds and Toll Material, in each case containing principally platinum,
palladium and rhodium and generally having the composition as
described in Section 5.1 hereof.
1.10 FINAL ASSAY means the final determination of the concentration of
metals found in the Filter Cake as determined in accordance with
Section 12 hereof and on which a final accounting of the return of
metals by JM to SMC and the payment of treatment, refining and
assaying charges by SMC to JM shall be based.
1.11 g means gram, i.e., 0.001 kg.
1.12 HEREOF, HEREIN, HERETO, HEREUNDER refers to this Agreement as a whole
and not solely to a particular subdivision thereof in which the same
appear.
1.13 HERAEUS means Heraeus Metals Processing, Inc., located in Santa Fe
Springs, California, formerly known as PGP Industries, Inc.
1.14 kg means kilogram, i.e., 1,000 g, or 32.15074 xxxx ounces.
1.15 LOT means a single shipment not to exceed 300 pounds of Filter Cake
delivered to JM.
1.16 MINES means, collectively, the Stillwater Mine, the East Boulder Mine
and the New Mines.
1.17 oz means xxxx ounce, i.e., 31.1035 grams.
1.18 PARTY OR PARTIES means JM and SMC, individually or collectively as the
context implies, and the successors and assigns of any Party which
shall have become a Party hereto in accordance with the terms hereof.
1.19 PROVISIONAL INVOICE means an invoice for charges by JM to SMC based on
the Agreed Content.
1.20 RETURNABLE METALS means the metals contained in the Filter Cake to be
refined and returned to SMC's account by JM in the quantities, at the
purity levels and otherwise as required by Section 10.1 hereof.
1.21 SECONDARY MATERIAL means any manufactured industrial product and
by-product, including slag, containing certain platinum group metals
(collectively, platinum, palladium and rhodium).
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1.22 SHIPMENT ASSAY means the determination of the concentrations of metals
in the Filter Cake made by SMC prior to shipment of the Filter Cake to
the Facility.
1.23 SMC ACCOUNT means the account for Returnable Metals established with
JM in accordance with Section 10.4 hereof.
1.24 SMC PURCHASER means Ford Motor Company, General Motors Corporation,
Mitsubishi Corporation, KEMET Corp. or any other third party purchaser
of SMC's production.
1.25 [***] shall have the meaning set forth in Section 5.2 hereof.
1.26 US$ means United States dollars, the lawful currency of the United
States of America.
1.27 UM means S.A. Union Miniere N.V., with whom SMC had previously
contracted to refine its Filter Cake.
2. DELIVERY OF FILTER CAKE; REFINING; RETURN OF METALS; SECONDARY MATERIALS
2.1 DELIVERY OF FILTER CAKE
SMC shall deliver to JM Filter Cake in the quantities and with the
composition and otherwise in accordance with the terms and conditions
of this Agreement. SMC shall deliver the first shipment of Filter Cake
to JM under this Agreement as soon as practicable after the Effective
Date.
2.2 REFINING OF FILTER CAKE
JM shall take delivery of the Filter Cake provided by SMC under this
Agreement, and shall treat and refine the Filter Cake and credit
Returnable Metals to the account of SMC upon the terms and conditions
of this Agreement.
2.3 WARRANTIES OF SMC
SMC declares and warrants to JM that the execution and delivery of
this Agreement by SMC does not conflict with the laws of the United
States or with any applicable laws and regulations, and that SMC has
the absolute right and authority to enter into and to perform this
Agreement in accordance with the terms and conditions hereof.
2.4 WARRANTIES OF JM
JM declares and warrants to SMC that the execution and delivery of
this Agreement by JM does not conflict with the laws of the United
States or with any applicable laws and regulations, and that JM has
the absolute right and authority to enter into and to perform this
Agreement in accordance with the terms and conditions hereof.
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2.5 SUPPLY OF SECONDARY MATERIALS
JM shall make a reasonable good faith effort to provide to SMC
Secondary Materials in such quantities, at such times and otherwise on
the terms as mutually agreed; provided that this Section 2.5 shall not
require JM to breach its existing commitments or to otherwise impair
its relations with its existing suppliers of refining services, which
determination of breach or impairment shall be made solely by JM.
3. TERMS, TERMINATION AND EXTENSION
3.1 TERM
This Agreement will remain in force and effective until May 31, 2009,
unless extended or terminated by written agreement of the Parties or
according to the provisions of this Agreement.
3.2 SMC EARLY TERMINATION
SMC may terminate this Agreement by notifying JM in writing at least
thirty (30) Days in advance of the date of such termination, without
payment of any penalty or other amounts except payment of charges due
in accordance with Section 11 for processing already performed, under
the following circumstances:
3.2.1 Force Majeure. A condition or conditions of force majeure
continue for the applicable periods set forth in Section 14.2
hereof; or
3.2.2 Change in Law. An order, statute, rule, regulation, executive
order, injunction, stay, decree or restraining order shall have
been enacted, entered, promulgated or enforced by any
governmental or regulatory authority or instrumentality or
court of competent jurisdiction that imposes a new tax or
charge on the transactions contemplated by this Agreement or
otherwise materially adversely affects the transactions
contemplated by this Agreement, the market conditions thereof
or the economic benefits to SMC thereof; or
3.2.3 Default by JM. JM commits an act of default as specified in
Section 13.2 hereof; or
3.3 [***]
[***]
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4. QUANTITIES
4.1 PERCENTAGE OF AVAILABLE MONTHLY PRODUCTION
In the periods indicated below, SMC shall ship to JM under this
Agreement, and JM will treat, Filter Cake in quantities which shall be
an amount of Filter Cake which represents the following percentages of
total Available Monthly Production of Filter Cake from the Mines,
together with the Filter Cake produced from the Secondary Feeds and
Toll Material for the respective periods.
PERCENTAGES OF PRODUCTION
Percentage of Available
Periods Monthly Production
------- -----------------------
PERIOD A: From the Effective Date
through October 31, 2001 [***]
PERIOD B: The first Day following the end of Period A
through May 31, 2009 [***]
4.2 ESTIMATED FILTER CAKE SHIPMENT FORECASTS
By the end of each month, SMC shall provide JM verbally or in writing
with an estimated Filter Cake shipment forecast with estimated
delivery dates for the following month. SMC may make changes to the
estimated forecast at any time during the month provided any such
change is communicated to JM verbally or in writing.
5. QUALITY
5.1 HISTORICAL AVERAGE QUALITY OF FILTER CAKE AND MINIMUM REQUIREMENTS
The Filter Cake is expected to have the following approximate
composition, based on average composition of Filter Cake produced by
SMC in 1999:
PREVIOUS 18 MONTHS AVERAGE AND RANGE COMPOSITION FOR THE FILTER CAKE
ITEM COMPONENT MAXIMUM AVERAGE
---- --------- ------- -------
1. Pt [***] [***]
2. Pd [***] [***]
3. Rh [***] [***]
4. Au [***] [***]
5. Ag [***] [***]
6. Co [***] [***]
7. Cu [***] [***]
8. Fe [***] [***]
9. Ni [***] [***]
10. S [***] [***]
11. Pb [***] [***]
12. As [***] [***]
13. Si [***] [***]
14. Se [***] [***]
15. Te [***] [***]
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5.2 [***]
[***]
5.3 MATERIAL CHANGES IN FILTER CAKE COMPOSITION
In the event that the composition of Filter Cake delivered hereunder
departs materially from the composition described in Section 5.1
above, JM and SMC will negotiate in good faith with full disclosure to
overcome any significant economic hardships or technical difficulty
which either JM or SMC may suffer as a result thereof. It is
understood and agreed that the Filter Cake shall not include any
hazardous or toxic materials, nor shall it contain any other
impurities the solubility of which will materially negatively impact
the refining process, and in either such case, JM shall have the
absolute right to refuse to accept that particular Filter Cake for
refining or (at the sole option of JM) renegotiate the financial terms
of this Agreement as they relate to the Filter Cake containing such
materials or impurities. Any and all direct costs and liabilities
arising out of or related to the failure of SMC to deliver Filter Cake
without such materials and impurities as required in the preceding
sentence shall be the sole and absolute responsibility of SMC,
provided that SMC shall not, under any circumstances, be responsible
for any incidental or consequential damages suffered by JM arising out
of any claimed failure of SMC to comply with this provision.
5.4 EAST BOULDER MINE
Notwithstanding anything to the contrary in this Agreement, the
provisions of Sections 5.1, 5.2 and 5.3 hereof shall apply only to the
Stillwater Mine as of the date of this Agreement. At such
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time as Filter Cake is being produced at the East Boulder Mine, if the
composition of such Filter Cake does not depart materially from the
composition described in Section 5.1 above, and falls with the range
of composition for either the [***], SMC shall ship the Filter Cake
produced at the East Boulder Mine to JM, and JM shall process such
Filter Cake in accordance with the terms of this Agreement. In the
event that the composition of such Filter Cake departs materially from
the composition described in Section 5.1 above, JM and SMC will
negotiate in good faith with full disclosure to overcome any
significant economic hardships or technical difficulty which either JM
or SMC may suffer as a result thereof, and if the parties are unable
to reach agreement with respect thereto, the Filter Cake produced at
the East Boulder Mine shall not be subject to the terms and conditions
of this Agreement.
6. SHIPMENT AND DELIVERY: RECEIPT
6.1 SHIPMENT TO JM
Shipment shall be made at a regular rate during the term of this
Agreement. The Filter Cake will be shipped in Lots sealed in pails. No
more than four (4) Lots may be shipped by SMC to JM at a time without
the prior verbal or written consent of JM.
6.2 DELIVERY
Delivery shall be free of all charges to the Facility, at which time
possession of the Filter Cake shall transfer to JM.
6.3 RECEIPT BY JM
JM shall promptly notify SMC in writing when it has received Filter
Cake at the Facility. Acknowledgment by JM of delivery, on carrier's
receipt, will not constitute agreement as to description, weight or
composition of the Filter Cake received.
7. RISK OF LOSS
All risk of loss or damage to the Filter Cake and contained metals from all
causes shall be assumed by the Party in possession of such Filter Cake
and/or Returnable Metals. Risk of loss of the Filter Cake and Returnable
Metals shall pass to JM upon receipt and acceptance of the Filter Cake by
JM. Risk of loss shall remain with JM as to any and all Returnable Metals
which have been credited to the SMC Account established in Section 10.4
hereof until such time as such Returnable Metals have been delivered to a
carrier for shipment at the written direction of SMC.
8. INSURANCE
JM shall acquire and maintain adequate insurance to cover 100% of the value
of the Filter Cake and Returnable Metals while in JM's possession.
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9. WEIGHING: SAMPLING: MOISTURE
9.1 PROCEDURES
Except as provided in Section 9.4 and Section 9.5, weighing, sampling
and moisture determinations as to each Lot shall be conducted at the
Facility by JM following receipt by JM of the Filter Cake in
accordance with the procedures set forth in Exhibit A attached hereto
and by this reference incorporated herein. JM shall provide to SMC and
retain for itself samples pursuant to the procedures set forth in
Exhibit A.
9.2 SMC REPRESENTATIVE
SMC shall be entitled to be represented at weighing, sampling and
moisture determinations, at its own cost, by a supervising company
whose nomination shall be subject to JM's approval, which approval
shall not be unreasonably withheld. An unexhaustive list of
representatives approved by JM as of the date hereof is attached
hereto as Exhibit B. SMC's designated representative with respect to a
particular Lot or Lots shall not be selected to act as an umpire for
the assays from such Lot or Lots in accordance with Section 12.4
hereof. SMC shall nominate any such representative by providing
written notice to JM which indicates the name of the representative
and the particular Lot or Lots which it is supervising on behalf of
SMC. Except as provided in Section 9.4, weighing, sampling and
moisture determinations as to each Lot for which SMC has nominated a
representative shall be conducted at the Facility by JM on the
Business Day following receipt by JM of the Filter Cake. If no
representative has been so nominated by SMC within a reasonable time
after SMC has provided JM with a shipment forecast as required by
Section 4.2 or if such representative is not present at the time of
the weighing, sampling and moisture determination, then SMC shall not
be represented for that particular Lot or Lots.
9.3 SEPARATE TREATMENT OF LOTS
Each Lot shall be considered complete and separate for all accounting
purposes under this Agreement.
9.4 ALTERNATIVE PROCEDURES
Weighing, sampling and moisture determinations as to each Lot shall be
conducted in accordance with Section 9.1 or Section 9.5, except that
SMC and JM may agree in writing to certain alternative procedures to
be followed for such weighing, sampling and moisture determinations as
to each Lot, which alternative procedures shall be thereafter
implemented for Lots delivered under this Agreement.
9.5 SAMPLING BY SMC
The parties agree that SMC shall have the opportunity to conduct the
sampling and moisture determinations as to certain Lots in accordance
with this Section 9.5. During a six (6) month period (the "Trial
Period"), the start date of which shall be selected by SMC with the
written consent of JM, which consent shall not be withheld
unreasonably, SMC shall perform the above functions on approximately
fifty percent (50%) of the Lots to be refined under this Agreement
during the Trial Period. The sampling and moisture determinations as
to each Lot shall be
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conducted at SMC's Columbus facility by SMC. SMC shall provide to JM
and retain for itself samples pursuant to the procedures SMC uses. The
validity of the data produced during the Trial Period shall be subject
to verification by Matrix Consultant Limited or such other
independent, third-party statistician as shall be mutually agreed upon
by the parties. Once the validity of the data has been verified, SMC
shall have the right, but not the obligation, to elect by written
notice to JM to perform the sampling and moisture determinations in
accordance with this Agreement on fifty percent (50%) of all Lots
refined under this Agreement. In all cases where sampling is conducted
by SMC, JM shall have the same rights specified for SMC under Section
9.2.
10. RETURNABLE METALS
10.1 PERCENTAGE OF METAL RETURNS; PURITY
JM shall return to SMC, in accordance with this Agreement, the
respective percentages of the metals contained in the Filter Cake, in
the form of sponge, or, upon the specific written consent of both
parties, in the form of grain, in each case conforming to the
respective percentages of minimum purity as set forth in the
applicable table of Exhibit C. [***]. SMC may, upon the written
consent of JM, direct JM to provide Returnable Metals in the form of
solution rather than sponge with the same respective minimum purity
levels as set forth in the applicable table of Exhibit C, provided
however that, in such case, JM shall have the right to charge an
additional fee for providing said solutions if such additional fee is
economically justified by JM.
10.2 RETURN OF METALS
JM shall credit the Returnable Metals to the SMC Account. Thereafter,
at SMC's written direction, JM shall transfer Returnable Metals to
another pool account established by SMC or physically deliver the
Returnable Metals on behalf of SMC to a carrier for delivery, at SMC's
cost, to a destination designated by SMC in writing, within the time
periods set forth in Section 10.3; [***]. All shipments requiring
physical delivery shall take place on the date that the metal is due
to be returned unless SMC fails to notify JM at least three (3)
Business Days in advance. Upon delivery to a carrier, JM's
responsibility for risk of loss and insurance related to Returnable
Metals shall terminate. The return of metals shall be based on the
Agreed Content, provided that in the event the Final Assay differs
from the Agreed Content, an adjustment will be made to the SMC Account
to credit the SMC Account in the event the Final Assay is greater than
the Agreed Content or to debit the SMC Account in the event the Final
Assay is less than the Agreed Content.
10.3 TIME FOR RETURN OF THE METALS IN LOTS
10.3.1 If [***] Apply. For all Lots with respect to which [***] apply,
platinum, palladium, silver, gold and rhodium shall be made available
by JM to SMC or credited to the SMC Account no later than the number
of Days set forth below after the later of (i) receipt by JM of the
Filter Cake containing such metal in accordance with Section 6.3
hereof or (ii) in
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the event the non-sampling party has notified the sampling party of
its nomination of a representative as provided by Section 9.2, the
date that is one Business Day following receipt by JM of the Filter
Cake.
Period Pd Pt Au Ag Rh
Effective Date through May 31, 2003 [***] [***] [***] [***] [***]
June 1, 2003 through May 31, 2009 [***] [***] [***] [***] [***]
10.3.2 If [***] Apply. For all Lots with respect to which [***] apply,
platinum, palladium, silver, gold and rhodium shall be made available
by JM to SMC or credited to the SMC Account no later than the number
of Days set forth below after the later of (i) receipt by JM of the
Filter Cake containing such metal in accordance with Section 6.3
hereof or (ii) in the event the non-sampling party has notified the
sampling party of its nomination of a representative as provided by
Section 9.2, the date that is one Business Day following receipt by JM
of the Filter Cake.
Period Pd Pt Au Ag Rh
Effective Date through May 31, 2003 [***] [***] [***] [***] [***]
June 1, 2003 through May 31, 2009 [***] [***] [***] [***] [***]
10.4 SMC ACCOUNT
In order to establish proper accounting for the Returnable Metals due
to SMC under this Agreement, JM has established a precious metal
account in the name of SMC which will reflect the accurate amounts of
each element of Returnable Metal so held by JM, subject to the further
orders of SMC. Returnable Metals within the SMC Account shall be held
by JM in Pennsylvania. JM shall store, safeguard and insure all
precious metals accounted for in said account, at no charge to SMC.
SMC may require physical delivery of Returnable Metals held in the SMC
Account, or it may draw upon its account to transfer to other third
party accounts upon written direction to JM. Any shipments requiring
physical delivery shall be F.O.B. JM storage facility in Pennsylvania.
[***]
10.5 WARRANTIES OF JM REGARDING PURITY
JM warrants that Returnable Metals refined on behalf of SMC according
to the terms of this Agreement shall have the following minimum levels
of purity:
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Platinum [***]
Palladium [***]
Rhodium [***]
Gold [***]
Silver [***]
THE FOREGOING WARRANTY IS MADE SOLELY TO SMC AND IN LIEU OF ALL OTHER
WARRANTIES, EXPRESSED OR IMPLIED, ARISING BY LAW OR CUSTOM INCLUDING
WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS
FOR A PARTICULAR PURPOSE. JM's liability for violation of the warranty
of purity, if any, is limited to the replacement by JM within three
(3) Business Days after return to JM of the nonconforming metal, with
like metal fulfilling the minimum specified purity levels above.
Claims for rejected, nonconforming metal must be made (i) within seven
(7) Days of physical receipt by SMC of such nonconforming metal, with
respect to metal physically received by SMC or received for the
account of SMC, or (ii) within seven (7) Days of receipt by SMC of
notice from any SMC Purchaser of such nonconforming metal, with
respect to metal delivered to any SMC Purchaser. Any claims not made
within this time shall be deemed waived. JM shall not, under any
circumstances, be responsible for any incidental or consequential
damages suffered by SMC arising out of any claimed breach of warranty
or otherwise.
11. CHARGES
11.1 TREATMENT, REFINING AND ASSAYING CHARGES
SMC shall pay to JM the [***], as the case may be, determined in
accordance with Section 5.2 and as set forth in Exhibit D, which shall
be the total amount due to JM for its treatment, refining and assaying
of the Filter Cake and the contained metals therein under this
Agreement. Except as set forth in this Section 11.1, in Section 10.1
and Section 12.4.5, no other charges shall be paid or payable by SMC
to JM under this Agreement without the mutual written agreement of the
parties hereto.
11.2 PAYMENT OF CHARGES
Treatment, refining and assaying charges shall be calculated based on
the ounces of each element of Returnable Metals determined by the
Agreed Content to be present in the Filter Cake (and shall apply pro
rata to fractional amounts), provided that in the event the Final
Assay differs from the Agreed Content, a Provisional Invoice will be
sent to SMC based on the Agreed Content and after a final accounting
based on the Final Assay has been completed, a final invoice will be
sent to SMC reflecting additional charges in the event the Final Assay
is greater than the Agreed Content or reflecting a credit to be
applied to future charges in the event the Final Assay is less than
the Agreed Content. SMC shall pay to JM the total amount of the
charges payable under this Agreement. Such amount shall be paid by SMC
in U. S. dollars. JM shall invoice SMC for charges on a monthly basis
by sending an invoice to SMC at the end of each month via overnight
carrier. Payment must be received by JM no later than fourteen (14)
Days after receipt of such monthly invoice by SMC.
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12. ASSAYS
12.1 ASSAY PROCEDURES
The samples of Filter Cake, by Lot, shall be analyzed by each Party
independently to assay the content therein of Returnable Metals.
12.2 EXCHANGE OF ASSAYS
The results of the assays of samples performed as described in Section
12.1 shall be exchanged simultaneously by registered airmail or such
other agreed method between SMC and JM on a date to be agreed upon in
advance, but in no event later than a date sixty (60) Days after the
Date of Delivery of the respective Lot.
12.3 SPLITTING DIFFERENCE IN PARTIES' ASSAYS
In order for the parties to arrive at the Agreed Content of a Lot by
assay exchange, JM's assay for every precious metal analyzed must fall
within the minimum relative percentage variations permitted in Exhibit
E hereto (the "Splitting Limits") from SMC's assay. Therefore, when
the assays for each precious metal are within the applicable
"Splitting Limit" the Agreed Content with respect to each such
precious metal shall be the average (mean) of the assays in question,
and the Final Assay shall equal the Agreed Content for the purpose of
Section 10.2 and 11.2. If JM's assay for a precious metal is not
within the "Splitting Limit" of SMC's assay for that metal, the Final
Assay for that metal shall be determined by the Umpire Assay, as more
particularly set forth herein, unless otherwise agreed by both parties
hereto.
12.4 UMPIRE ASSAY
12.4.1 Rotation Among Umpires. In the event that a party's Matching
Assay for a precious metal is not within the Splitting Limits
as specified in Section 12.3 above, an umpire assay shall be
made by one of the following umpires, acting in rotation,
sampled Lot by sampled Lot:
X.X. Xxxxxx International Ltd
Xxxxxxxxx Grange, Prescot Rd.
GB-WA 10 3BA St. Helens -- Merseyside
Great Britain
Inspectorate Xxxxxxxx Ltd
0 Xxxxx Xxxx, Xxxxxx
Xxxxx, XX0 0XX
England, Great Britain
Le Doux & Company
000 Xxxxxx Xxxxxx
Xxxxxxx, XX 00000
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12.4.2 Agreed Content. In the event this Section 12.4 applies, then
for purposes of this Section 12.4 and of Sections 10.2 and
11.2, the Agreed Content shall mean 100% of the lowest results
of the assays performed by the Parties pursuant to Section
12.1.
12.4.3 Umpire Assay Between Parties' Assays. Should the umpire assay
fall between the results of the two Parties or coincide with
either, the arithmetical mean of the umpire assay and the assay
of the Party which is nearer to the umpire assay shall be taken
as the Final Assay. In the event that the umpire assay is
exactly between the assay of the two Parties, the umpire assay
shall be taken as the Final Assay.
12.4.4 Umpire Assay Outside Exchanged Results. Should the umpire assay
fall outside the exchanged results, the assay of the Party
which is nearer to the umpire assay shall be taken as the Final
Assay.
12.4.5 Cost of Umpire Assay. The cost of the umpire assay shall be
borne by the Party whose result is further from the umpire's.
However, if the umpire assay is the exact mean of the assays
exchanged by the Parties, such cost shall be borne equally by
the Parties.
12.4.6 Replacement of Existing Umpire. Either Party may recommend that
an existing umpire be replaced. Any such replacement shall be
subject to unanimous agreement of the Parties.
12.5 PROVISIONAL SETTLEMENT OF ASSAYS
In the event SMC or JM is unprepared to exchange assays in accordance
with Section 12.2 prior to the return time set forth in Section 10.3,
the Agreed Content of the Lot shall be assumed to be a percentage
between 95% and 100%, as mutually agreed upon by SMC and JM, of the
metal amounts reported on the Shipment Assay for such Lot. A
Provisional Invoice shall be issued in accordance with Section 11.2,
followed by an adjustment of the amount of metals returned by JM to
SMC and the amount of treatment, refining and assaying charges paid by
SMC to JM once the Final Assay of the Lot is determined.
13. DEFAULT
13.1 SMC FAILURE TO PAY CHARGES
If SMC shall fail to pay the charges as required by this Agreement and
such failure is not cured within seven (7) Business Days after receipt
by SMC of notice thereof, JM shall have the right to (i) retain or
sell Returnable Metals for an amount equivalent to the total amount of
charges due plus interest for the applicable period, which shall be at
the one-month LIBOR rate ruling at the due date of the payment, as
published in the Wall Street Journal and (ii) suspend its further
performance under this Agreement during the continuance of SMC's
failure to pay. Returnable Metals retained or sold by JM under the
terms of this Section 13.1 shall be valued or sold at the Second
London Fix for the applicable metal on the date of retention or sale.
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13.2 JM EVENT OF DEFAULT
A "JM Event of Default" shall occur if (i) JM fails to satisfy the
minimum purity levels for Returnable Metals and such failure is not
cured in accordance with Section 10.5 (i.e. within three (3) Business
Days after return of metals to JM); (ii) JM fails to return metal
timely in accordance with Section 10 and such failure is not cured
within three (3) Business Days after receipt of notice thereof by JM;
(iii) JM is generally not paying its debts as such debts become due,
or admits in writing its inability to pay its debts generally or makes
a general assignment for the benefit of creditors, there is the
appointment of a receiver for JM or any of its assets, the filing by
JM of a voluntary petition in bankruptcy or any form of
reorganization, the filing of an involuntary petition in bankruptcy
against JM which is not dismissed with prejudice within sixty (60)
Days of such filing, or the making of an assignment for the benefit of
creditors of JM; or (iv) JM fails to satisfy any of its other material
obligations hereunder and such failure is not cured within three (3)
Business Days after receipt of notice thereof by JM. Upon a JM Event
of Default, SMC shall have the right to: (A) suspend its further
performance under this Agreement during the continuance of a JM Event
of Default; (B) terminate this Agreement as provided in Section 3.2.3,
and all future obligations of SMC shall cease and SMC shall retain
sole ownership of all Filter Cake and Returnable Metals from Filter
Cake received by JM as of such date; and/or (C) pursue any other
remedies available to SMC under this Agreement and under applicable
laws and legal and equitable remedies.
14. FORCE MAJEURE
14.1 EXTENSION OF TIME
If, at any time, either Party is delayed in or prevented from
exercising its rights or performing its obligations under this
Agreement (other than payment of money), which delays or preventions
are caused by any cause beyond the reasonable control of such Party
including, without limiting the generality of the foregoing, acts of
God, accidents, strikes, insurrections, lockouts or other labor or
industrial disturbances, actions of any competent governmental
authority or court orders, future orders of any regulatory body having
jurisdiction, acts of the public enemy, wars (declared or undeclared),
riots, sabotage, blockades, embargoes, shortages of or inability to
secure fuel, power, contractors, labor, raw materials, railroad or
transport facilities, failure of and damage to or destruction of
machinery, plant and equipment, snowslides, landslides, lightning,
weather conditions materially preventing or impairing work, fires,
storms, floods, washouts and explosions, and any other causes beyond
the reasonable control of the Party in question, whether of the kind
enumerated herein or otherwise, such Party shall not be liable for any
such failure or delay by it to perform its obligations hereunder and
the period of all such delays or preventions resulting from such
causes or any of them shall be excluded in computing and shall extend
the term in Section 3.1 of this Agreement by equal to the lesser of
the total duration of all such instances or six (6) months.
14.2 NOTICE REQUIRED; OPTION TO TERMINATE
Neither Party's performance shall be excused or extended under this
Section 14, unless the Party claiming force majeure shall give the
other Party prompt notice of the occurrence of such event stating, to
the extent known, the probable event by which it will be unable to
perform or be delayed in performing its obligations hereunder and the
expected duration thereof. In the event
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that such other party disagrees with the terms of such notice, such
disagreement shall be resolved in accordance with the terms of Section
17 hereof. The non-claiming Party shall be entitled to terminate this
Agreement without further liability upon notice to the other Party in
the event that a condition or conditions of force majeure shall
continue for more than three (3) consecutive months. If the condition
or conditions of force majeure continue for a period in excess of
twelve (12) consecutive months, then either Party may terminate this
Agreement, without further liability, by written notice to the other
Party; provided, however, that JM may terminate this Agreement,
without further liability, by written notice to SMC, in the event that
JM is incurring additional costs in respect of this Agreement for a
period of time in excess of nine (9) consecutive months as a result of
Section 14.3 below.
14.3 [***]
[***]
14.4 EFFECTS ON PARTIES
Upon receipt of notice from JM of an occurrence of an event of force
majeure in accordance with Section 14.2, SMC shall be immediately
entitled to ship Filter Cake to an alternative treatment facility and
divert any shipment already in route, and JM will bear the excess
costs of such treatment and refining, if any, over the costs to SMC of
treatment and refining by JM hereunder in the absence of such force
majeure event. JM shall cooperate with SMC as necessary or appropriate
to facilitate such diversion and alternative facility treatment and
the orderly transition back to JM upon cessation of the condition of
force majeure. JM shall be excused for the duration of any cause of
force majeure from accepting further deliveries of Filter Cake from
SMC.
14.5 REASONABLE BEST EFFORTS REQUIRED
The Party claiming force majeure shall use all reasonable best efforts
to eliminate such event insofar as possible with a minimum of delay;
provided, however, neither Party shall be required
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against its will to adjust or settle any labor dispute or strike or to
question the validity of any third party claim or to refrain from
pursuing its legal or equitable remedies against any third party.
15. CONFIDENTIALITY
Each Party shall consider all information, documents and other materials
provided hereunder (collectively, "Confidential Information") as
confidential and proprietary information of the disclosing Party, and the
receiving Party agrees to maintain in confidence all such Confidential
Information and not to divulge such Confidential Information in whole or in
part to any third party and not to make use of such Confidential
Information other than in relation to meeting its obligations under this
Agreement. This obligation shall not apply to: (i) Confidential Information
which at the time of disclosure is in the public domain; or (ii)
Confidential Information which, after disclosure, becomes part of the
public domain by publication or otherwise, other than by an unauthorized
act or omission of the receiving Party; or (iii) Confidential Information
which the receiving Party is required by law or regulation, or at the
request of any governmental organization, to make public (such disclosure
to be done in a manner which maintains confidentiality to the fullest
extent permitted by law or regulation); or (iv) Confidential Information
which a receiving Party can show by written records was within its
possession prior to the time of the disclosure and was not under any
obligation of confidentiality; or (v) Confidential Information which the
receiving Party rightly receives from a third party lawfully possessing and
lawfully entitled to disclose such Confidential Information. JM hereby
acknowledges that SMC is lawfully entitled to disclose the terms of this
Agreement and to file this Agreement in its entirety with the United States
Securities and Exchange Commission (the "SEC"). [***]
16. APPLICABLE LAW
The parties to this Agreement are domiciled in two different states. 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 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.
17. DISPUTE RESOLUTION
If any dispute arises between the Parties arising out of or relating to
this Agreement or the interpretation or enforcement thereof ("Dispute"),
the Parties agree that they will first attempt to resolve the Dispute
through direct negotiations. If such efforts to resolve the Dispute through
negotiations fail, the Parties agree to attend a convening meeting,
facilitated by a knowledgeable mediator, to discuss use of alternate
dispute resolution methods to resolve the Dispute. Either Party may demand
a convening meeting regarding a Dispute by sending written notice to the
other Party. For such a convening meeting, the Parties agree that they will
jointly select the mediator, schedule a convening meeting in New York at a
mutually acceptable time, and will equally share the mediator's fees. Each
Party agrees to attend such a
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meeting for at least two hours, but is free to withdraw from the convening
meeting after attending for that time period. The Parties anticipate that
such a convening meeting, among other things, would include discussion of
the following: (a) the mode of proceeding further (for example, mediation,
neutral evaluation, mini-trial, etc.); (b) a procedure and schedule for
exchange of documents and other information related to the Dispute; (c)
ground rules and a schedule for conducting the selected mode of proceeding;
and, (d) selection and compensation of the neutral (if any). No earlier
than ninety (90) Days after the demand by either Party for a convening
meeting; either Party may initiate an action regarding the Dispute
provided, however, that a Party may seek a preliminary injunction or other
preliminary judicial relief if, in the judgment of that Party, such action
is necessary to avoid irreparable damage or to preserve the status quo.
Despite the initiation of any judicial proceedings for preliminary relief,
the Parties will continue to participate in the convening meeting.
18. MODIFICATIONS
Neither this Agreement nor any terms or provisions hereof may be changed,
waived, discharged, or terminated orally, except only by an instrument in
writing specifically purporting so to do and signed by the Parties hereto.
19. SUCCESSORS AND ASSIGNS
This Agreement (including the exhibits hereto) and all of its provisions
shall be binding upon and inure to the benefit of the successors and
permitted assigns of the Parties hereto.
20. ASSIGNMENT
This Agreement may not be assigned by any Party without the prior written
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 any purchase or sale of
substantially all of the assets of one of the Parties, with respect to
which such consent by the nonassigning Party will not be required. This
Agreement is entered into solely for the benefit of the Parties and not for
the benefit of any other persons or entities. No other persons or entities
may enforce it for their benefit nor shall they have any claim or remedy
for its breach.
21. NOTICES
All notices shall be given by telex or telecopier and shall be deemed
received upon receipt of electronic confirmation of the same.
Notices to JM shall be directed as follows:
Xxxxxxx Xxxxxxx
0000 Xxxxx Xxxxx
Xxxx Xxxxxxxx, Xxx Xxxxxx 00000
Attn: Sales & Marketing Director
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
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With a copy to:
Xxxxxxx Xxxxxxx Inc.
000 Xxxx Xxxxxxxxxx Xxxx
Xxxxx, Xxxxxxxxxxxx 00000
Attn: Xxxxxx X. Xxxxxx, Vice President & General Counsel
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
Notices to SMC shall be directed as follows:
Stillwater Mining Company
000 Xxxx Xxxx Xxxxxx
Xxxxxxxx, Xxxxxxx 00000
Attn: Xxxxx Xxxxxx and Xxxx Xxxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
With a copy to:
Stillwater Mining Company
0000 Xxxxxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
Attn: Xxx Xxxxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
22. ENTIRE AGREEMENT
This Agreement (including the exhibits hereto) 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.
23. COUNTERPARTS
This Agreement may be executed by the Parties hereto in two or more
counterparts, each of which when so executed and delivered shall be an
original, and it shall not be necessary in making proof of this Agreement,
as to any Party hereof, to produce or account for more than one such
counterpart executed by such Party.
24. WAIVER
The waiver of any breach of this Agreement by either Party hereto shall in
no way constitute a waiver of any future breach, whether similar or
dissimilar in nature.
25. HEADINGS
The headings to all sections, subsections and exhibits shall not form a
part of this Agreement or of its exhibits, but shall be regarded as having
been used for the convenience of reference only.
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26. [***]
[***]
[Remainder of this page intentionally left blank]
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IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be
executed by their duly authorized officers effective from and after the day and
year first above written.
XXXXXXX XXXXXXX INC., STILLWATER MINING COMPANY
CATALYST AND CHEMICALS DIVISION
By: /s/ Xxxxxx X. Xxxxxx, Ph.D. By: /s/ Xxxxxxx X. Xxxxxxx
----------------------------------- --------------------------------------
Name: Xxxxxx X. Xxxxxx, Ph.D. Name: Xxxxxxx X. Xxxxxxx
Title: General Manager, Chemicals N.A. Title: Chief Executive Officer
By: /s/ Xxxxxx X. Xxxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President of Metals-Marketing
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EXHIBIT A
SAMPLING PROCEDURES FOR SMC FILTER CAKE
[***]
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EXHIBIT B
LIST OF APPROVED REPRESENTATIVES
X.X. Xxxxxx International Ltd
Xxxxxxxxx Grange, Prescot Rd.
GB-WA 10 3BA St. Helens -- Merseyside
Great Britain
Inspectorate Xxxxxxxx Ltd
0 Xxxxx Xxxx, Xxxxxx
Xxxxx, XX0 3 TU
England, Great Britain
Le Doux & Company
000 Xxxxxx Xxxxxx
Xxxxxxx, XX 00000
23
EXHIBIT C
PERCENTAGE RETURN AND PURITY OF CONTAINED METALS
TABLE I (Effective from the Effective Date through May 31, 2003)
Metal Percentage Return Minimum Purity
----- ----------------- --------------
Silver (Ag) [***] [***]
Gold (Au) [***] [***]
Platinum (Pt) [***] [***]
Palladium (Pd) [***] [***]
Rhodium (Rh) [***] [***]
TABLE II (Effective June 1, 2003 and thereafter)
Metal Percentage Return Minimum Purity
----- ----------------- --------------
Silver (Ag) [***] [***]
Gold (Au) [***] [***]
Platinum (Pt) [***] [***]
Palladium (Pd) [***] [***]
Rhodium (Rh) [***] [***]
24
EXHIBIT D
[***]
FOR THE PERIOD COMMENCING ON THE EFFECTIVE DATE THROUGH MAY 31, 2009:
Charges per
Metal returnable ounce
----- ----------------
Platinum [***]
Palladium [***]
Gold [***]
Rhodium [***]
Silver [***]
[***]
[***]
FOR THE PERIOD COMMENCING ON THE EFFECTIVE DATE THROUGH MAY 31, 2009:
Charges per
Metal returnable ounce
----- ----------------
Platinum [***]
Palladium [***]
Gold [***]
Rhodium [***]
Silver [***]
[***]
25
EXHIBIT E
SPLITTING LIMITS
% Concentration of Each
Precious Metal Contained Relative % Variation
in the Assay From SMC's Assay
------------------------ --------------------
[***] [***]
[***] [***]
[***] [***]
[***] [***]
[***] [***]
[***] [***]
[***] [***]
[***] [***]
