Exhibit 10.4
PALLADIUM AND RHODIUM SALES AGREEMENT
This PALLADIUM AND RHODIUM SALES
AGREEMENT (this “Agreement”) is made and entered into
this 8 th day of August,
2007, by and between STILLWATER MINING COMPANY, a Delaware
corporation, whose address is 1321 Discovery Drive, Billings,
Montana 59102 (“SMC”), and GENERAL MOTORS CORPORATION,
a Delaware corporation, with a place of business at 777 Joslyn
Ave., Pontiac, Michigan 48340-2925 (“GM”).
RECITAL
GM and SMC are interested in entering
into an arrangement by this Agreement whereby SMC will supply GM
certain agreed upon amounts of palladium sponge of .9995 minimum
purity and rhodium sponge of .9990 minimum purity.
AGREEMENT
NOW, THEREFORE, for good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, SMC hereby agrees to sell and deliver and GM hereby
agrees to purchase palladium and rhodium of the quantity and
quality hereinafter set forth, upon the following terms and
conditions:
Section 1. Definitions and
Terminology . Unless the context indicates otherwise,
capitalized terms have the meaning set forth in this
Section 1.
Actual Mined Metal means Palladium mined from SMC’s
East Boulder Mine and/or Stillwater Mine.
Actual Monthly Production means the actual amount of mined
metal out-turned by SMC or on behalf of SMC by a third party
refinery during any one calendar month.
Business Day means each Monday, Tuesday, Wednesday, Thursday
and Friday which is not a day on which banking institutions in the
United States are authorized or obligated by law or executive order
to close.
Contract Year shall mean the twelve consecutive calendar
months commencing with January of each calendar year.
Delivery Point means GM’s pool account at Heraeus
Metals Processing, USA and/or Johnson Matthey, USA, as designated
by GM on or before the last Business Day of the Pricing Month. If
GM fails to designate which location, delivery will be made to the
same Delivery Point(s) as the previous delivery.
Old
Agreement means the Palladium and Platinum Sales Agreement
dated as of August 17, 1998, as amended by the First Amendment
Agreement to Palladium and Platinum
* Confidential treatment has been requested with
respect to certain portions of this exhibit. Such portions are
marked with a “***” in place of the redacted language.
Omitted portions are filed separately with the Securities and
Exchange Commission.
Sales
Agreement dated as of November 20, 2000, and by the Second
Amendment Agreement to Palladium and Platinum Sales Agreement dated
as of February 20, 2001, and the Third Amendment to Palladium
and Platinum Sales Agreement dated as of August 8, 2007, and
as the same may be amended from time to time.
Delivery Start Date means *** for Rhodium deliveries and the
month following the date of the last delivery of Palladium pursuant
to the Old Agreement.
JM
Reference Price Average means the monthly average of the daily
Johnson Matthey North America reference price for Rhodium, as
published by Johnson Matthey Inc. Precious Metals Marketing, USA,
at approximately 9:30 am Eastern Time.
London PM Fix Average means the monthly average of the daily
London Platinum & Palladium Market (LPPM) PM Fix for
Palladium, as published on LPPM website www.lppm.org.uk.
Metal means the palladium and/or rhodium to be sold under
this Agreement.
Ounce is a troy ounce equivalent to 31.1035 grams.
Palladium means refined palladium in sponge form with .9995
minimum purity.
Palladium Option shall have the meaning set forth in
Section 4(a).
Pricing Month means the month during which pricing is
determined pursuant to Section 5 of this Agreement, and
(i) with respect to Palladium, is the month prior to the month
of delivery (e.g. *** for delivery in ***), and (ii) with
respect to Rhodium, is the month that is three months prior to the
month of delivery (e.g. *** for delivery in ***).
Rhodium means refined rhodium in sponge form with .9990
minimum purity.
Rhodium Option shall have the meaning set forth in
Section 4(b).
Section 2. Term . This
Agreement shall have an initial term from *** through and including
***. This Agreement is subject to earlier termination pursuant to
Section 9 and extension pursuant to Section 15.
Section 3. Delivery .
Beginning on the Delivery Start Date, SMC will sell and deliver
Metal FOB Delivery Point, and GM will purchase the quantities of
Metal set forth in Section 4, which shall be delivered no
later than the *** day of the month following the Pricing Month.
All Metal to be sold in any one calendar month shall be delivered
to a single Delivery Point.
Section 4. Quantity and
Source .
* Confidential treatment has been requested with
respect to certain portions of this exhibit. Such portions are
marked with a “***” in place of the redacted language.
Omitted portions are filed separately with the Securities and
Exchange Commission.
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(a)
Palladium . ***.
(b)
Rhodium . ***.
Section 5. Pricing .
***.
(a)
Palladium . ***.
(b)
Rhodium . ***.
Section 6. Payment Terms
. On the first Business Day following each Pricing Month (i.e., the
first Business Day of the month of delivery), SMC will inform GM in
writing via facsimile as to the formula-based pricing computations
set forth in Section 5 above for the actual quantities of
Metal to be delivered by SMC pursuant to this Agreement during the
following month. GM will forward such payment amount for 100% of
the actual quantities by wire transfer to SMC (pursuant to written
wire transfer instructions which will be provided by SMC) by the
third Business Day following the confirmation of receipt. All
payments will be made in U.S. Dollars. If GM does not agree with
SMC’s pricing computations, GM shall timely notify SMC of the
disagreement and the parties shall seek resolution of such dispute
as to the calculation of the payment amount prior to the date
payment is due.
Section 7. Suspension of
Delivery for Failure to Pay . Ten business days after receipt
by GM of written notice from SMC to GM of GM’s failure to pay
pursuant to the terms of Sections 6 and 7 (Why the reference
to section 7) above, SMC may suspend delivery of Metal to GM until
such time as payment has been received by SMC. This right shall not
be deemed to be an exclusive right or remedy.
Section 8. Risk of Loss;
Title . Title and risk of loss for all Metal delivered
hereunder shall pass to GM upon delivery to the Delivery
Point.
Section 9. Warranty . SMC
warrants that the Palladium supplied hereunder shall have a minimum
purity of .9995; that the Rhodium supplied hereunder shall have a
minimum purity of .9990; and that SMC will convey good title to the
Metal, free and clear of all liens and encumbrances payable by SMC.
In respect of Metal supplied by release from SMC’s pool
account to GM’s pool account, the parties agree that such
Metal shall be deemed to have a minimum purity of .9995 for
Palladium and .9990 for Rhodium.
OTHER
THAN THOSE EXPRESSLY STATED IN THIS AGREEMENT, THERE ARE 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
* Confidential treatment has been requested with
respect to certain portions of this exhibit. Such portions are
marked with a “***” in place of the redacted language.
Omitted portions are filed separately with the Securities and
Exchange Commission.
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USE
NOTWITHSTANDING ANY COURSE OF PERFORMANCE, USAGE OF TRADE OR LACK
THEREOF INCONSISTENT WITH THIS SECTION.
SMC’S
SOLE LIABILITY FOR BREACH OF WARRANTY SHALL BE LIMITED TO
REPLACEMENT OF THE NONCONFORMING METAL.
Section 10. Default and
Termination . Either party shall be entitled to terminate this
Agreement in the event of (i) the other party generally not
paying its debts as such debts become due, or admitting in writing
its inability to pay its debts generally or making a general
assignment for the benefit of creditors, the appointment of a
receiver for the other party or any of its assets, the filing by
the other party of a voluntary petition in bankruptcy or any form
of reorganization, or the filing of an involuntary petition in
bankruptcy against the other party which is not dismissed with
prejudice within 60 days of such filing, or the making of an
assignment for the benefit of creditors of the other party; or
(ii) a breach by the other party of any of the material terms
or conditions of this Agreement, which breach is not cured within
10 business days of notice of such breach by the non-breaching
party. SMC shall be entitled to terminate this Agreement in the
event GM does any of the following: (i) acquire, or agree,
offer or propose to acquire, directly or indirectly, from SMC or
any other person, any business or assets of, or securities issued
by, SMC or any right, warrant or option to acquire any of the
foregoing; (ii) propose to enter into, directly or indirectly, any
merger or business combination involving SMC or any of its
subsidiaries or to purchase, directly or indirectly, a material
portion of the assets of SMC or any of its subsidiaries;
(iii) make any proposal or request to SMC or any of its
officers or directors relating, directly or indirectly, to any
action referred to in clause (i) or (ii) of this
paragraph or to any modification or waiver of any provision of this
paragraph; (iv) make or participate in, directly or
indirectly, any “solicitation” of “proxies”
(as those terms are used in the proxy piles of the Securities and
Exchange Commission) to vote or seek to advise or influence any
person with respect to the voting of any voting securities of SMC
or any of its subsidiaries; (v) form, join or in any way
participate in a “group” (within the meaning of
Section 13(d)(3) under the Exchange Act) with respect to any
voting securities of SMC or any of its subsidiaries; (vi) act
alone or in concert with others to seek to control or influence the
management, Board of Directors or policies of SMC;
(vii) advise, assist or enter into any discussions,
negotiations, arrangements or understandings with any other person
with respect to any of the foregoing; or (viii) make any
public statement or disclosure of any kind with respect to any
matter addressed by this paragraph (unless required by law) or take
any other action which might reasonably be expected to result in
any such public disclosure. Otherwise, unless this Agreement is
extended pursuant to Section 14, this Agreement will terminate
on *** (except that the provisions of Sections 6, 9, 12, 13,
16 and 19 of this Agreement will survive such termination).
Section 11. Taxes and
Assessments . GM shall be responsible for the payment of all
sales, use, excise, transfer, value added and other similar taxes
imposed by an governmental
* Confidential treatment has been requested with
respect to certain portions of this exhibit. Such portions are
marked with a “***” in place of the redacted language.
Omitted portions are filed separately with the Securities and
Exchange Commission.
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authority in any jurisdiction in connection with the transactions
contemplated herein. If any personal property taxes are assessed
against the Metal by any gov
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