EXHIBIT 10.15
PGM CONCENTRATE REFINING AGREEMENT
THIS PGM CONCENTRATE REFINING AGREEMENT (this "Agreement") is made as of the
8th day of May, 1996, by and between S.A. UNION MINIERE N.V. Business Unit
Hoboken, incorporated under the laws of Belgium ("Union Miniere"), and
STILLWATER MINING COMPANY, a Delaware corporation authorized to conduct business
in the State of Montana ("SMC").
WITNESSETH:
WHEREAS, Union Miniere owns certain facilities in Belgium (the "Facility")
capable of treating PGM Concentrate (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"); and
WHEREAS, SMC desires Union Miniere to treat and refine the PGM Concentrate
produced by SMC from the Stillwater Mine, and Union Miniere desires to treat and
refine the PGM Concentrate at its Facility.
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
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Throughout this Agreement, the following terms shall mean:
1.1 AGREED CONTENT means the concentration of a metal found in the
PGM Concentrate as set forth in the Final Assay determined in
accordance with Section 12 hereof.
1.2 DATE OF DELIVERY means the date the PGM Concentrate is received
by Union Miniere as acknowledged in accordance with Section 6.3
hereof.
1.3 FACILITY means Union Miniere's Belgian facilities capable of
treating and refining PGM Concentrate.
1.4 FINAL ASSAY means the determination of the concentrations of
metals in the PGM Concentrate on which the return of metals by Union
Miniere to SMC will be based under this Agreement.
1.5 FINAL VALUE means the market value of returnable and payable
metals less payable charges.
1.6 G means gram, i.e., 0.001 Kg.
1.7 HEREOF, HEREIN, HERETO, HEREUNDER refers to this Agreement as a
whole and not solely to a particular subdivision thereof in which the
same appear.
1.8 KG means kilogram, i.e., 1,000g, or 32.1507 tr oz.
1.9 LOT means a quantity of PGM Concentrate delivered to Union
Miniere in one shipment of approximately 200 to 400 pounds per
shipment.
1.10 PARTY OR PARTIES means Union Miniere 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.
1.11 PLATINUM GROUP METALS OR PGM means, collectively, platinum,
palladium and rhodium.
1.12 PGM CONCENTRATE means materials produced by SMC and containing
principally platinum, palladium and rhodium and generally having the
composition as described in Section 5 hereof.
1.13 PROVISIONAL INVOICE means an invoice for charges by Union Miniere
to SMC based on the lowest results of the assays performed in
accordance with Section 12.
1.14 RETURNABLE METALS means the metals contained in the PGM
Concentrate to be refined and returned to SMC's account by Union
Miniere in the quantities, at the purity levels and otherwise as
required by Section 10.1 hereof.
1.15 SMC ACCOUNT means the account for Returnable Metals established
with Union Miniere in accordance with Section 10.4 hereof.
1.16 STILLWATER MINE means SMC's present mine in Nye, Montana.
1.17 TR OZ means ounce, i.e., 31.1035 grams.
1.18 U.S. means United States dollars, the lawful currency of the
United States of America.
2. DELIVERY OF PGM CONCENTRATE; REFINING; RETURN OF METALS
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2.1 DELIVERY BY SMC
SMC shall deliver to Union Miniere PGM Concentrate in the
quantities and with the composition and otherwise in accordance with
the terms and conditions of this Agreement.
2.2 REFINING OF PGM CONCENTRATE; RETURN OF METALS
Union Miniere shall take delivery of the PGM Concentrate provided
by SMC under this Agreement, and shall treat and refine the PGM
Concentrate and return certain metals contained in the PGM Concentrate
upon the terms and conditions of this Agreement.
3. TERM AND TERMINATION
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3.1 TERM
This Agreement will remain in force and effective until December
31, 2000, unless extended or terminated by written agreement of the
Parties, or terminated according to the provisions of this Agreement.
3.2 OPTIONAL EARLY TERMINATION
At its option, SMC may terminate this Agreement by notifying
Union Miniere in writing at least one hundred and eighty (180) days in
advance of the date of such termination. In the event of such
optional termination as provided in this Section 3.2, SMC shall pay to
Union Miniere (in addition to payment of charges due in accordance
with Section 11 for processing already performed), as liquidated
damages and not as a penalty, an amount of money indicated for the
respective period during which the date of such termination occurs as
follows:
Period during which Amount
Date of Termination Occurs ($US)
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Effective date through December 31, 1996 3,500,000
January 1, 1997 through December 31, 1997 2,800,000
January 1, 1998 through December 31, 1998 2,000,000
January 1, 1999 through December 31, 1999 1,400,000
January 1, 2000 through December 31, 2000 700,000
The liquidated damages provided for herein shall be Union
Miniere's sole and exclusive remedy for SMC's optional early
termination of this Agreement in accordance with this Section 3.2.
3.3 EXTRAORDINARY EARLY TERMINATION
Notwithstanding the provisions of Section 3.2 hereof, SMC may
terminate this Agreement by notifying Union Miniere in writing at
least thirty (30) days in advance of the date of such termination,
without payment of the liquidated damages set forth in Section 3.2 or
any penalty or other amounts except payment of charges due in
accordance with Section 11 for processing already performed, under the
following circumstances:
3.3.1 Force Majeure. A condition or conditions of force
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majeure continue for the applicable periods set forth in Section
15.2 hereof; or
3.3.2 Change in Law. An order, statute, rule, regulation,
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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 materially adversely affects the
transactions contemplated by this Agreement, the market
conditions thereof or the economic benefits to SMC thereof; or
3.3.3 Default by Union Miniere. Union Miniere defaults in
------------------------
the performance of its obligations hereunder in accordance with
Section 13.2 hereof.
4. QUANTITIES
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In each calendar year of this Agreement, SMC shall ship to Union Miniere
under this Agreement, and Union Miniere will treat, PGM Concentrate in
quantities which shall be the lesser of the (i) ounces of platinum group
metals or (ii) percentage of total calendar
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year production from the Stillwater Mine in accordance with the following
schedule for the respective calendar years:
PRODUCTION RANGES
-----------------
Calendar PGM Percentage of Total
Year Ounces Calendar Year Production
-------- --------- ------------------------
1996 291,600 90%
1997 338,100 70%
1998 350,000 70%
1999 350,000 70%
2000 350,000 70%
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1,679,700
5. QUALITY
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5.1 HISTORICAL AVERAGE QUALITY OF PGM CONCENTRATE
The PGM Concentrate is expected to have the following approximate
composition, based on average composition of PGM Concentrate produced
by SMC at its pilot plant in 1994:
1994 AVERAGE COMPOSITION OF PGM CONCENTRATE
-------------------------------------------
Average Average
Component % Component %
--------- ---- --------- ----
Pt 10.5 Ni 3.2
Pd 34.0 S 6.0
Rh 0.3 Pb 2.3
Au 0.6 As 0.2
Ag 0.2 Si 0.1
Co 0.1 Se 1.1
Cu 7.5 Te 0.04
Fe 3.3
5.2 MATERIAL CHANGES IN PGM CONCENTRATE COMPOSITION
In the event that the composition of PGM Concentrate delivered
hereunder departs materially from the composition described in Section
5.1 above, Union Miniere and SMC will negotiate in good faith with
full disclosure to overcome any significant economic hardships or
technical difficulty which either Union Miniere or SMC may suffer as a
result thereof.
6. SHIPMENT AND DELIVERY; RECEIPT
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6.1 SHIPMENT
Shipment shall be made at a regular rate during the term of this
Agreement. The PGM Concentrate will be dispatched in Lots which will
be packed and sealed in 55 kg drums. More than one Lot may be shipped
by SMC to Union Miniere at a time.
6.2 DELIVERY
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Delivery shall be free of all charges Brussels Airport, at which
time possession of the PGM Concentrate shall transfer to Union
Miniere.
6.3 RECEIPT
Union Miniere shall promptly notify SMC in writing when it has
received PGM Concentrate at the Brussels Airport. Acknowledgment by
Union Miniere of delivery, on carrier's receipt, will not constitute
agreement as to description, weight or composition of the PGM
Concentrate received.
7. RISK OF LOSS
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All risk of loss or damage to the PGM Concentrate and contained metals from
all causes shall be assumed by the Party in possession of such PGM
Concentrate and contained metals. Risk of loss of the PGM Concentrate and
contained metals shall pass to Union Miniere upon receipt and acceptance of
the PGM Concentrate by Union Miniere. Risk of loss shall remain with Union
Miniere through the refining process and will continue thereafter as to any
and all Returnable Metals which have been returned to SMC's account
established in Section 10.4 hereof until such time as such Returnable Metals
have been transferred or exported at the written direction of SMC in
accordance with Section 14 hereof.
8. INSURANCE
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Union Miniere shall acquire and maintain adequate insurance to cover
100% of the value of the PGM Concentrate and contained metals while in Union
Miniere's possession.
9. WEIGHING; SAMPLING; MOISTURE
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9.1 PROCEDURES
Except as provided in Section 9.4, weighing, sampling and
moisture determinations as to each Lot shall be conducted by Union
Miniere at the Facility in accordance with the procedures set forth in
Exhibit A attached hereto and by this reference incorporated herein.
Union Miniere shall provide to SMC and retain for themselves four (4)
sealed samples per Lot: three (3) for it's own assays and one (1) to
be set aside for purposes of an umpire assay in accordance with
Section 12.4 hereof. Union Miniere shall treat the PGM Concentrate
only after executing and delivering to SMC a weighing and sampling
report which certifies compliance with 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 Union Miniere's approval which
approval shall not be unreasonably withheld. An unexhaustive list of
representatives approved by Union Miniere as of the date hereof is
attached hereto as Exhibit B. SMC shall nominate any such
representative by providing written notice to Union Miniere which
indicates the name of the representative and the particular Lot or
Lots which it is supervising on behalf of SMC. If no representative
has been so nominated by SMC within a
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reasonable time after SMC has received notice from Union Miniere of
the date and time for sampling as provided in Section 9.1, then SMC
will not be represented.
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 by Union Miniere in accordance with Section 9.1,
except that SMC may hereinafter notify Union Miniere in writing of
certain alternative procedures to be followed for such weighing,
sampling and moisture determinations as to each Lot, including but not
limited to procedures involving performance of certain of such
determinations by SMC at the Stillwater Mine facilities, which
alternative procedures shall, after approval by the Parties, be
incorporated herein and thereafter implemented for Lots delivered
under this Agreement.
10. RETURNABLE METALS
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10.1 PERCENTAGE OF METAL RETURNS; PURITY
Union Miniere shall return to SMC, in accordance with this
Agreement, the respective percentages of the Agreed Content of the
metals contained in the PGM Concentrate, in the form of minimum purity
sponge conforming to ASTM specification B561-84 in the respective
percentages of minimum purity, as set forth in Exhibit C. SMC may,
upon written notice, direct Union Miniere to provide Returnable Metals
in the form of solution rather than sponge with the same respective
minimum purity levels as set forth in Exhibit C.
10.2 RETURN OF METALS
Union Miniere shall make available to SMC or credit to the SMC
account, within the time periods set forth in Section 10.3, the
Returnable Metals. Said Returnable Metals shall be returned
unpackaged, ex Facility, unless otherwise requested by SMC. SMC shall
bear any costs of such packaging.
10.3 TIME FOR RETURN OF THE METALS
Platinum, palladium, silver and gold shall be made available by
Union Miniere to SMC or credited to the SMC account no later than
twenty (20) days after the Date of Delivery. Rhodium shall be made
available by Union Miniere to SMC or credited to the SMC account no
later than fifty (50) days after the Date of Delivery.
10.4 SMC ACCOUNT
In order to establish proper accounting for the Returnable Metals
due to SMC under this Agreement, Union Miniere shall establish an
account in the name of SMC which will reflect the accurate amounts of
each element of Returnable Metal so held by Union Miniere, subject to
the further orders of SMC. Union Miniere 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 held by Union Miniere upon written
direction to Union Miniere in accordance with Section 14 hereof.
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11. CHARGES
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11.1 TREATMENT AND REFINING CHARGES
SMC shall pay to Union Miniere the charges set forth in Exhibit D
which shall be adjusted only in accordance with Section 11.2 hereof
and shall be the total amount due to Union Miniere for its treatment
and refining of the PGM Concentrate and the contained metals therein
under this Agreement. Such charges shall be calculated based on the
ounces of each element of Returnable Metals determined by the Agreed
Content to be present in the PGM Concentrate and shall apply pro rata
to fractional amounts. No other charges shall be made by SMC to Union
Miniere under this Agreement.
11.2 ADJUSTMENT OF CHARGES
The charges payable in accordance with Section 11.1 shall remain
fixed at the levels specified in such Section 11.1 for a period of
thirty-six (36) months, commencing January 1, 1996. Thereafter, such
charges may be adjusted for the succeeding twenty-four (24) calendar
months only after the Parties have agreed in writing as to the charges
to be imposed for such twenty-four (24) calendar month period. Prior
to the end of the first period of thirty-six (36) months, Union
Miniere shall provide in writing to SMC a proposal for any adjustment
to charges for such subsequent twenty-four (24) calendar month period,
which proposal shall include documentation to demonstrate that such
proposed adjustment to charges directly results from an increase in
actual costs to Union Miniere in performing the services under this
Agreement; provided, however, that in no event shall Union Miniere
propose to increase any of the charges by an amount exceeding 5% of
any such charge as set forth in Exhibit D. Until agreement as to
adjusted charges has been reached, the charges in Section 11.1 shall
be payable. Upon the establishment of any new charges pursuant to
this Section 11.2, such new charges shall apply to all deliveries of
PGM Concentrate made to Union Miniere after the end of the thirty-
sixth (36th) calendar month described above, but shall have no
application to deliveries of PGM Concentrate made to Union Miniere
before such date.
11.3 PAYMENT OF CHARGES
SMC SHALL PAY TO UNION MINIERE THE TOTAL AMOUNT OF THE CHARGES PAYABLE
UNDER THIS AGREEMENT. SUCH AMOUNT SHALL BE PAID BY SMC IN U.S.
DOLLARS NO LATER THAN TWENTY (20) DAYS AFTER RECEIPT BY SMC OF THE
PROVISIONAL INVOICE OR FINAL INVOICE FROM UNION MINIERE. When
provisional invoicing and payment have been made, a final accounting
shall follow as soon as all necessary data are available.
12. ASSAYS
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12.1 ASSAY PROCEDURES
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The samples of PGM Concentrate, by Lot, shall be analyzed by each
Party independently to assay the content therein of precious metals.
Such assays of platinum, palladium gold and silver shall be performed
using fire assay lead collection procedures and assays of rhodium
shall be performed using nickel sulfide collection procedures.
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
between SMC and Union Miniere 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
Should the difference between the results of the assays of both
Parties be not more than:
For Pt.: 0.50% relative;
For Pd.: 0.50% relative;
For Au.: 1.00% relative;
For Rh.: 1.00% relative;
For Ag.: 5.00% relative;
then the exact mean of the two results shall be taken as the
Final Assay for the purpose of final accounting.
12.4 UMPIRE ASSAY
12.4.1 Rotation Among Umpires. In the event of a greater
----------------------
difference between the Parties' assays than the amounts 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:
Laboratoire D' Analyse Bachelet
Rue due Xxx Xxxxxx, 129
B-4900
Angleur, Belgium
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
Xxxxxxx, Great Britain
Xxxxx Xxxxxxx Assay
Caddish Road, Knowsley
Industrial Estate - Merseyside
Great Britain
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12.4.2 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.
12.4.3 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.
12.4.4 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.
12.4.5 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.
13. DEFAULT
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13.1 DEFAULT IN PAYMENT OF CHARGES
Subject to thirty (30) days advance written notification, and a
reasonable time to cure upon the failure of SMC to pay the charges as
required by Section 11 hereof, Union Miniere may 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. Returnable Metals retained or
sold by Union Miniere under the terms of this Section 13.1 shall be
valued and/or sold at the fair market value on the date of retention
and/or sale.
13.2 DEFAULT BY UNION MINIERE
Subject to thirty (30) days advance written notification, and a
reasonable time to cure, the failure of Union Miniere to satisfy any
of its obligations hereunder, including its failure to satisfy the
minimum purity levels for Returnable Metals, shall constitute a
default hereunder. A default by Union Miniere hereunder shall
furthermore exist in the event Union Miniere shall make or offer to
make any arrangement with creditors or commit any act of bankruptcy.
Upon such a default by Union Miniere, SMC may terminate this Agreement
as provided in Section 3.3.3 and all future obligations of SMC shall
cease.
13.3 SUSPENSION OF PERFORMANCE
Default of performance by either Party under this Agreement shall
give to the non-defaulting Party the right to suspend its further
performance under this Agreement.
14. EXPORT OF RETURNABLE METALS
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The Returnable Metals shall be exported from Belgium within twelve (12)
months of the Date of Delivery. SMC shall require any of its purchasers of
such Returnable Metals to comply with the requirements of this Section 14.
Detailed instructions (country of destination, forwarding agent, agent,
means of transportation, etc.) regarding the removal of the Returnable
Metals shall be given by SMC or SMC's assignee so as to reach Union Miniere
at least five (5) business days before the date of the removal. Any such
instructions of SMC or its assignee, in their entirety, must be written.
Notwithstanding the provisions of this Section 14, transfers between the
account of SMC at Union Miniere and /or third party accounts at Union
Miniere shall occur on the same day as the receipt of detailed written
instructions from the designated person of SMC; provided that, if such
instructions are received on a day which is not a business day in Belgium,
then such account transfers shall be accomplished on the next succeeding
business day.
15. FORCE MAJEURE
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15.1 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 time within which Party may exercise its rights or perform its
obligations hereunder for a period equal to the total duration of all
such instances.
15.2 NOTICE REQUIRED; OPTION TO TERMINATE
Neither Party's performance shall be excused or extended under this
Section 15, unless the Party claiming force majeure shall give the
other immediate notice of the occurrence of such event and the
expected duration thereof. 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. In
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. In the event of termination for reasons of force
majeure affecting SMC, the liquidated damages set forth in Section 3.2
shall not apply.
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15.3 ALLOCATION OF RESOURCES
In the event of a claim of force majeure, Union Miniere shall have an
obligation to allocate its available refining services or other
resources among all of its customers, including SMC, on a pro rata
basis in accordance with its obligations thereto.
15.4 EFFECTS ON PARTIES
Upon receipt of notice from Union Miniere of termination as a result
of force majeure in accordance with Section 15.2, SMC shall be
immediately entitled to ship PGM Concentrate to an alternative
treatment facility and divert any shipment already in route. Union
Miniere shall cooperate with SMC as necessary or appropriate to
facilitate such diversion and alternative facility treatment and the
orderly transition back to Union Miniere upon cessation of the
condition of force majeure. Union Miniere shall be excused for the
duration of any cause of force majeure from accepting further
deliveries of PGM Concentrate from SMC.
15.5 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 to settle a labor
dispute or strike against its best interest, such settlement and
negotiations being totally within such Party's discretion.
16. RESOLUTION OF DISPUTES
----------------------
16.1 GOOD FAITH, FAIR DEALING
The Parties hereto confirm that the spirit of mutual cooperation and
goodwill underlie this Agreement, and that the Parties shall perform
the transactions contemplated hereunder based on principles of mutual
cooperation. It is therefore agreed and understood that if one of the
Parties has been put into an excessively inequitable or unreasonable
position due to unforeseen conditions or circumstances beyond the
control of either Party, then both Parties shall upon request by the
Party affected by such change enter into good faith negotiations to
arrive at an equitable solution.
16.2 ARBITRATION
All disputes arising under this Agreement, which cannot be settled by
mutual consent and negotiations within a period of one hundred eight
(180) days after commencement of such negotiations (or within such
other period as specifically specified herein for the applicable
dispute), shall be finally settled by way of arbitration under the
rules of Conciliation and Arbitration of the International Chamber of
Commerce. The Parties hereto agree that each Party shall nominate an
arbitrator and the two arbitrators nominated by them shall agree on a
third arbitrator within 30 days after their nomination. The decision
of the arbitrators shall be final and binding upon the Parties thereto
and may be enforced by any court of competent jurisdiction over its
person and venue in such court. The place of arbitration shall be New
York, New York USA, in any event and the
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language of the arbitration shall be English. Costs of arbitration
shall be charged or apportioned as directed by the arbitrators. Either
Party on behalf of the Parties hereto shall have the right to commence
any such arbitration procedure.
17. APPLICABLE LAW
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THIS AGREEMENT SHALL BE GOVERNED IN ALL RESPECTS BY AND SHALL BE CONSTRUED
AND INTERPRETED IN ACCORDANCE WITH THE "CODE SUISSE DES OBLIGATIONS."
18. 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 at the request of any governmental organization to make
public.
19. MODIFICATIONS
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Neither this Agreement nor any terms or provisions hereof may be changed,
waived, discharged, or terminated orally, but only by an instrument in
writing specifically purporting so to do and signed by the Parties hereto.
20. SUCCESSORS AND ASSIGNS
----------------------
This Agreement and all of its provisions shall be binding upon and inure to
the benefit of the successors and permitted assigns of the Parties hereto.
21. ASSIGNMENT
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This Agreement may not be assigned by any Party without the prior written
consent of the other Party. Such consent shall not be unreasonably withheld.
22. NOTICES
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All notices shall be given by telex or telecopier and shall be deemed
received upon receipt of electronic confirmation of the same.
Notices to Union Miniere shall be directed as follows:
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S.A. Union Miniere N.V. Telephone 00 0 0000000
A. Xxxxxxxxxxxxx 00 Telecopier 32 3 8217807
0000 Xxxxxxx, Xxxxxxx Telex 34004 UM B
Notices to SMC shall be directed as follows:
Stillwater Mining Company Telephone (000) 000-0000
XX 00 Xxx 000 Telecopier (000) 000-0000
Xxx, Xxxxxxx 00000 - USA
23. ENTIRE AGREEMENT
----------------
This Agreement represents the complete agreement between the Parties hereto
and supersedes all prior or contemporaneous oral or written agreement of the
Parties to the extent they relate in any way to the subject matter hereof.
24. COUNTERPARTS
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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.
25. WAIVER
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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.
26. HEADINGS AND TABLE OF CONTENTS
------------------------------
The headings to all sections, subsections and exhibits, and the table of
contents contained in this Agreement, 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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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.
S.A. UNION MINIERE N.V.,
BUSINESS UNIT HOBOKEN
WILLY FIERAIN By: XXXX XXX XXXXX
_____________________________________
Title: VICE PRESIDENT
__________________________________
STILLWATER MINING COMPANY, A DELAWARE
CORPORATION
By: /s/ XXXX XXXXXXX
_____________________________________
Title: PRESIDENT
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-14-
