EXHIBIT 10.39
AGREEMENT FOR THE SALE AND PURCHASE OF PALLADIUM
This Agreement, dated March 3, 2004, is made between:
Engelhard Corporation, a corporation organized under the laws of Delaware and
with a place of business at 000 Xxxx Xxxxxx, Xxxxxx, XX 00000 (the "Buyer"), and
Stillwater Mining Company, a corporation organized under the laws of Delaware
and with a place of business at 000 Xxxx Xxxx Xxx, Xxxxxxxx, Xxxxxxx 00000 (the
"Seller").
Whereas the Seller wishes to sell to Buyer and Buyer wishes to purchase from
Seller Palladium Sponge and ingot under the terms and conditions set forth
herein.
Now Therefore, the Buyer and Seller (hereinafter referred to individually as a
"Party" and collectively as the "Parties") do hereby agree as follows:
SECTION 1. FORM AND PURITY.
The Parties agree that the palladium purchased and sold pursuant to this
Agreement (the "Pd") shall be 99.95% pure palladium. At Seller's sole option,
the Pd may be either in sponge form produced by Norilsk Nickel or a major
producer acceptable to both Parties or in ingot form and, if in ingot form,
shall be a brand that is recognized as Zurich good delivery.
SECTION 2. QUANTITY. [Confidential]
SECTION 3. PRICE. [Confidential]
SECTION 4. PAYMENT.
Buyer shall pay Seller for the Pd within two (2) business days after the Pd is
delivered and the price is established. On such day, Buyer will pay Seller for
the Pd delivered plus any applicable sales, use and transfer taxes. For example,
payment would be due on the second business day of February for Pd priced in
January and delivered on the last business day of January.
All payments shall be made by wire transfer of immediately available funds to
Seller's account in accordance with the following wire transfer instructions.
Xxxxx Fargo Bank Montana, N.A.
000 X. 00xx Xxxxxx
Xxxxxxxx XX 00000
[Confidential]
[Confidential]
[Confidential]
If Buyer fails to pay for any Pd when payment is due, Seller may suspend future
deliveries of Pd to Buyer until such time as full payment has been received by
Seller. This right shall not be deemed to be an exclusive right or remedy.
SECTION 5. DELIVERY.
Seller shall deliver Pd to Buyer on the last business day of each month. Pd
sponge shall be delivered DDP Buyer's Carteret, NJ vault. Pd ingot shall be
credited to Buyer's account at Union Bank of Switzerland, Zurich, Switzerland.
SECTION 6. TITLE AND RISK OF LOSS.
Title and risk of loss to the Pd shall pass to Buyer upon delivery of the Pd at
its Carteret, NJ vault or its designated Zurich account, as the case may be.
SECTION 7. TERM AND TERMINATION. [Confidential]
SECTION 8. QUALITY DISPUTES.
Any dispute as to the purity of the Pd shall be referred to and be determined by
Xxxxxx and Company, and any determination so made shall be final and binding on
the parties. The costs of such proceedings shall be borne by the party against
whom the award is made. All defective Pd shall be returned to the Seller at the
Seller's expense and Seller shall reimburse Buyer for any external
transportation or handling costs incurred in connection with receiving the
non-conforming Pd.
SECTION 9. WARRANTY; LIMITATION OF LIABILITY.
Seller warrants that the Pd supplied hereunder shall be of the quality set forth
in Section 1 hereof. Other than those expressly stated in this agreement, seller
makes no representations, guarantees or warranties, expressed or implied, of any
kind. Without limiting the generality of the foregoing, seller expressly
disclaims any warranty 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. Seller's sole liability
for breach of warranty shall be limited to replacement of the nonconforming Pd
with conforming Pd within ten (10) business days of notice from Buyer of
nonconformity. Neither party shall be liable for any prospective or speculative
profits or special, indirect, consequential, punitive or exemplary damages.
SECTION 10. FORCE MAJEURE.
No event of force majeure, including war, civil disturbance, strike, industrial
dispute, lock out, fire, explosion, flood, storm, act of God, or governmental
act will excuse failure or delay in the performance of any obligation to deliver
any Pd unless Pd conforming to the applicable form and
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purity specifications is not available from metals dealers and not available on
spot markets generally. Where an event of force majeure precludes delivery and
no Pd conforming to the specification set forth in Section 1 hereof is so
available from dealers or on spot markets, Seller shall inform Buyer that it has
declared an event of force majeure and the probable duration of the event of
force majeure, whereupon Seller's obligations and the time for performance will
be extended for the duration of the period of force majeure. In the event that
the period of force majeure extends beyond one (1) year, the party that did not
declare force majeure shall have the option to terminate the contract, in which
case Seller's obligation to deliver and Buyer's obligation to purchase Pd under
this Agreement shall terminate.
SECTION 11. GOVERNING LAW.
This Agreement shall be governed by and construed in accordance with the law of
the State of New York and the United States without giving effect to principles
of conflicts of law. The 1980 United Nations Convention on Contracts for the
International Sale of Goods, to the extent it may be deemed to apply, shall not,
pursuant to Article 6 thereof, apply to this Agreement or the transactions
contemplated hereby.
SECTION 12. JURISDICTION.
Each of the parties submits to the jurisdictions of the courts of the State of
New York and the United States of America, in any action or proceeding arising
out of or relating to this Agreement, agrees that all claims with respect to any
such action or proceeding may be heard and determined by such courts and agrees
not to bring any action or proceeding arising out of or relating to this
Agreement in any other jurisdiction. Each of the parties waives any defense of
inconvenient forum to the maintenance of any action or proceeding so brought and
waives any bond, surety or other security that may be required of any other
parties with respect thereto. Any party may make service on any other party by
sending or delivering a copy of the process to the party to be served at the
address set forth at the end of this Agreement by registered or certified mail
return receipt requested, postage prepaid. Nothing in this section shall affect
the right of any party to serve legal process in any other manner provided by
law. Each Party agrees that a final judgment in any action or proceeding so
brought shall be conclusive and may be enforced by suit on the judgment or in
any other manner provided by law.
SECTION 13. CONFIDENTIALITY.
Each Party will for the term of this Agreement and a period of ten years after
the expiration or termination hereof keep confidential the terms of this
Agreement pertaining to pricing, volume and term (the "Information"), except as
disclosure may be required by exchange rule, governmental or judicial mandate or
as otherwise legally required. Neither Party shall be under any obligation to
treat as confidential any information which: (i) is now or hereafter becomes
part of the public domain through no fault or involvement of that Party; or (ii)
is received as a matter of right from a third party not subject to a
confidentiality obligation to the other Party.
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SECTION 14. ENTIRE AGREEMENT.
This Agreement represents the complete agreement between the parties hereto and
supersedes all prior or contemporaneous oral or written agreements of the
parties to the extent they relate in any way to the subject matter hereof or
thereof.
SECTION 15. 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.
SECTION 16. NO IMPLIED COVENANTS.
There are no implied covenants contained in this Agreement other than those of
good faith and fair dealing.
SECTION 17. BINDING EFFECT; NO ASSIGNMENT.
This Agreement shall bind and inure to the benefit of and be enforceable by the
parties hereto and may not be assigned by either party without the consent of
the other party, which consent shall not be unreasonably withheld, except that
no consent shall be required in respect of (i) any assignment of rights but not
obligations hereunder in order to provide security in connection with any
financing, expressly including, by way of example and not limitation,
assignments of royalty, overriding royalties or net profits interests or
production payments, or (b) any merger, consolidation or other reorganization or
transfer by operation of law, or by purchase of the business of or substantially
all of the assets of either party.
SECTION 18. 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 19. SEVERABILITY.
If any provision of this Agreement is held to be invalid, illegal or
unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability shall not affect
the validity, legality or enforceability of any other
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provision of this Agreement in such jurisdiction or affect the validity,
legality or enforceability of any provision in any other jurisdiction.
IN WITNESS WHEREOF, the parties have executed this Agreement effective
as of the date first above written.
STILLWATER MINING COMPANY ENGELHARD CORPORATION
By: /s/ Xxxx X. Xxxxx By: /s/ Xxxx X. Xxxxxxx
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Name: Xxxx X. Xxxxx Name: Xxxx X. Xxxxxxx
Title: Vice President, Corporate Counsel Title: Group Vice President
Materials Services
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