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EXHIBIT 10.38
PGM SALES AGREEMENT
This PGM SALES AGREEMENT (this "Agreement") is made and entered
into
this 1st day of February, 2004, by and
between STILLWATER MINING COMPANY, a
Delaware corporation, whose address is 536
East Pike Avenue, Columbus, Montana
59019 ("SMC"), and MITSUBISHI INTERNATIONAL
CORPORATION, a New York corporation,
whose address is 520 Madison Avenue, New
York, New York 10022-4223 ("MIC").
Section 1.
Term. Subject to the provisions of Section 7, this
Agreement shall have a term from February
1, 2004, through and including January
31, 2006.
Section 2.
Quality. The palladium delivered pursuant to this
Agreement shall be in ingot or sponge form
with 99.95% minimum purity. If in
ingot form it shall be of a brand that
carries the London Platinum and Palladium
Market's "Good Delivery Status." Form of
material delivered will be mutually
agreed by the parties no later than the
last business day of the month prior to
month of current delivery.
Section 3.
Quantity and Delivery. [Confidential] On the last
business day of each pricing month, SMC
will deliver Metal to a designated MIC
account at (a) Johnson Matthey Inc.,
Pennsylvania, or (b) Heraeus Metal
Processing, Santa Fe Springs, California or
shall ship Metal to MIC at Narita
Airport, Tokyo, Japan (CIP Narita Airport).
MIC shall give SMC the delivery
destination for the pricing month's
allocation within 5 business days from the
end of that month. Title and risk of loss
to the Metal shall pass from SMC to
MIC upon delivery or release of the Metal
to MIC.
Section 4.
Pricing. [Confidential]
Section 5.
Payment Terms. Within
two (2) business days after
delivery of Metal to the delivery location
and confirmation receipt from the
delivery location, MIC will forward payment
to SMC for the Metal delivered. If
MIC fails to pay for any Metal when payment
is due, SMC may suspend future
deliveries of Metal to MIC until such time
as full payment for overdue amounts
has been received by SMC. This right shall
not be deemed to be an exclusive
right or remedy.
Section 6.
Warranty; Limitation of Liability. SMC warrants that
the Metal supplied hereunder shall be of
the quality set forth in Section 2 and
that SMC will convey good title thereto.
OTHER THAN THOSE EXPRESSLY STATED IN
THIS AGREEMENT, SMC MAKES NO
REPRESENTATIONS, GUARANTEES OR WARRANTIES,
EXPRESSED OR IMPLIED, OF ANY KIND. WITHOUT
LIMITING THE GENERALITY OF THE
FOREGOING, SMC 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.
SMC's sole liability for breach of warranty
shall be limited to replacement of
the nonconforming Metal with conforming
Metal within ten (10) business days of
notice from MIC of nonconformity. 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.
Section 7.
Default and Termination. [Confidential] Either party
shall be entitled to terminate this
Agreement (a) in the event of breach by the
other party of any of the material terms or
conditions of this Agreement, which
breach is not cured within ten (10) days of
notice of such breach by the
non-breaching party, (b) for convenience
upon 60 days' prior written notice, or
(c) in the event of any sale of all or
substantially all of the assets or stock
of such party or any merger or other
consolidation.
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Section 8.
Force Majeure. In the event that either party is
r
