1
EXHIBIT 10.2
URANIUM CONCENTRATES SALES AGREEMENT
THIS AGREEMENT is made this 28th day of August, 1996 by and between:
URANIUM RESOURCES, INC., a corporation established and existing under the laws
of the State of Delaware and having principal offices at ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ (herein referred to as "Seller"), and
Georgia Power Company, a corporation established and existing under the laws
of the State of Georgia with its principal offices in Atlanta, Georgia
(hereinafter referred to as "Buyer"), acting for itself and as agent for
Oglethorpe Power Corporation, Municipal Electric Authority of Georgia, and
City of Dalton, Georgia (herein referred to as "Co-Owners").
WHEREAS, Buyer and the Co-Owners own the ▇▇▇▇▇ ▇. ▇▇▇▇▇ Nuclear Plant
("Plant Hatch") and the ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Electric Generating Plant ("Plant
Vogtle"), and Buyer is licensed to operate Plants Hatch and Vogtle and, on
behalf of the Co-Owners, is authorized to contract for the operational needs of
said plants; and
WHEREAS, Buyer, in its contracting for said plant needs, is the holder of
a grandfathered, "eligible contract" within the meaning of the August 1, 1996
U.S. Department of Commerce ("USDOC") notice of final decision regarding
importation into the United States of natural uranium concentrates originating
in the Russian Federation, Kazakstan, or Uzbekistan but enriched in a third
country prior to such importation, wherein Buyer may import into the United
States up to the final twenty-five percent (25%) of permitted contract volumes
if such uranium is obtained in conjunction with a "matched sale" or "matched
sales" of an equal amount of "newly produced" United States origin natural
uranium; and
2
WHEREAS, Seller is engaged in the business of selling and has agreed to
sell to Buyer, and Buyer has agreed to purchase from Seller, certain quantities
of "newly produced" United States origin natural uranium concentrates
conforming to dictates of the August 1, 1996 USDOC final decision and in
accordance with the terms and conditions of this Agreement;
NOW THEREFORE, in consideration of the premises above recited and the
mutual promises herein contained, Buyer and Seller hereby agree as follows:
ARTICLE 1: DEFINITIONS
When any one of the following terms is used in this Agreement, wherein
the first letter is written with a capital letter, then that term shall have the
following definition. Words importing persons include corporations, and words
importing only the singular include the plural and vice versa when the context
requires.
(a) "Book Transfer" shall mean the transfer of Concentrates on the records
of the Converter from the account of Seller to the account of Buyer,
after the Concentrates have met the Specifications of the Converter;
(b) "Concentrates" shall mean concentrates containing natural uranium in the
form of triuranium octoxide (U(3)0(2)) which has been neither enriched
nor depleted and which has a concentration of the isotope U-235 of
0.711 (nominal) weight percent;
(c) "(this) Agreement" shall mean this instrument as a whole, including any
appendices or exhibits hereto, as the same may be amended from time to
time. The expressions "herein", "hereto", "hereunder", "hereof" and
similar expressions refer to this
2
3
Agreement as so defined and to any relevant article, section,
subsection or other subdivision so designated;
(d) "Converter" shall mean the operator of the uranium conversion facility
or the conversion facility itself of Allied-Signal Corporation at
Metropolis, Illinois, USA, or another North American conversion
operator or facility mutually acceptable to both Seller or Buyer;
(e) "Delivery Date" shall mean a calendar day on which Concentrates are to
be delivered by Seller to Buyer in accordance with this Agreement;
(f) "Delivery Quantity" shall mean the amount of Concentrates, in pounds
U(2)O(3), which is to be delivered by Seller to Buyer in accordance
with this Agreement;
(g) "Nuclear Unit" shall mean the ▇.▇. ▇▇▇▇▇ Nuclear Plant, Unit 1 or Unit
2, or the Vogtle Electric Generating Plant, ▇▇▇▇ ▇ ▇▇ ▇▇▇▇ ▇;
(h) "Origin" shall mean the country or nation in which the Concentrates
delivered by Seller to Buyer are mined and milled, including by the
insitu process, and more specifically in this Agreement, the United
States;
(i) "Party" or "Parties" shall mean Seller or Buyer or both, as the context
may require;
(j) "Purchase Price" shall have the meaning attributed to that term in
Article 4;
(k) "Specifications" shall mean the Converter's standard specifications in
effect at the time of delivery of Concentrates under this Agreement
which establishes the acceptability of U(2)O(3) for conversion to
UF(6) without penalty or surcharge;
(l) "Suspension Agreement(s)" shall mean that agreement(s) dated October
16, 1992, as amended, by and between the U.S. Department of Commerce
and certain republics
3
4
of the Commonwealth of Independent States (namely, Kazakstan, Kyrgyzstan,
Uzbekistan, and the Russian Federation) suspending the Antidumping
Investigation on uranium imports into the United States from such
republics;
(m) "Russian Suspension Agreement Amendment" shall mean that agreement dated
March 11, 1994 by and between the U.S. Department of Commerce and the
Russian Federation amending the Russian Federation's Suspension Agreement
to allow imports into the United States of Russian origin uranium on a
matching basis with newly produced United States origin uranium and shall
include the U.S. Department of Commerce Statement of Administrative
Intent, dated June 17, 1994, and Second Statement of Administrative
Intent, dated July 19, 1994;
(n) "Term" shall mean the period from the execution of this Agreement through
and including December 31, 1999;
(o) "U-235" shall mean the isotope of uranium with the atomic weight 235; and
(p) "U(3)O(8)" shall mean natural uranium containing at least 0.711 (nominal)
weight percent U-235 as contained in concentrates as expressed in
triuranium octoxide.
ARTICLE 2: QUANTITIES AND ORIGINS
2.1 Subject to the other provisions of this Agreement and unless
otherwise agreed by the Parties during the Term of this Agreement, Seller
shall sell and deliver to Buyer and Buyer shall purchase and receive from
Seller during the Term of this Agreement the quantities of Concentrates
to be delivered, in accordance with Article 3 hereof, upon the Delivery
Dates as indicated below:
4
5
Quantity
Delivery Dates pounds U(3)O(2)
--------------------- -----------------------
March 31, 1997 110,000
September 30, 1997 110,000
March 31, 1998 248,658
September 30, 1998 107,900
-------
Agreement Total: 576,558
2.2 The Concentrates delivered by Seller to Buyer under
this Agreement shall be of United States Origin and shall
qualify as "newly produced" (i.e. after March 11, 1994)
uranium in accordance with the "matched sales" of United
States and Russian Origin Concentrates pursuant to terms of
the Russian Suspension Agreement Amendment.
ARTICLE 3: DELIVERY, ACCEPTANCE, TITLE AND RISK OF LOSS
3.1 Unless otherwise agreed by the Parties, Seller shall
deliver Concentrates to Buyer under this Agreement by Book
Transfer at the Converter on the Delivery Dates set forth in
Article 2.1. Delivery of Concentrates shall be effected when
Buyer's account is credited with the Concentrates by the
Converter. Seller shall request the Converter to provide
written notification to Buyer following each delivery of
Concentrates, verifying the actual quantity, the actual
date of delivery, and the Origin of the Concentrates
delivered. Seller shall be responsible for all fees
5
6
and charges assessed by the Converter as a result of Seller's failure to
make timely delivery of Concentrates hereunder, unless such failure is
excused pursuant to Article 7 hereof.
3.2 Concentrates delivered by Seller to Buyer hereunder shall meet the
Converter's Specifications for uranium concentrates in effect as of the
Delivery Date of such Concentrates. Seller shall be responsible for all
fees, charges and surcharges assessed by the Converter as a result of
Seller's failure to make delivery of Concentrates which conform to such
Specifications. The Parties agree that conformance of the Concentrates to
the Converter's Specifications shall be determined by the Converter.
3.3 Title to and risk of loss of or damage to Concentrates which
conform to the Converter's Specifications shall pass from Seller to Buyer
at the time of Book Transfer of such Concentrates in accordance with
Article 3.1 hereof.
ARTICLE 4: PRICE AND PAYMENT
4.1 As consideration for the Concentrates which Seller sells and
delivers to Buyer under the terms and conditions of this Agreement, Buyer
shall pay to Seller for each pound U(3)O(8) of such Concentrates a Purchase
Price of [ ] (hereinafter "Purchase Price"). The Purchase Price set
forth in the preceding sentence is expressed in U.S. Dollars as of March
31, 1996 and shall be adjusted, from the first calendar quarter of 1996 to
and including the calendar quarter that is two (2) calendar quarters
immediately prior to the calendar quarter in which delivery occurs
hereunder, by use of the following formula:
6
7
PP(D) = PP(S) (C2/C1)
where:
PP(D) = Purchase Price at the time of delivery;
PP(S) = Purchase Price as expressly set forth above [ ];
C1 = Implicit Price Deflator for Gross Domestic Product (hereinafter "IPD")
published monthly by the U.S. Department of Commerce, Bureau of
Economics for the first calendar quarter of 1996 (this is the base
period);
C2 = Implicit Price Deflator for Gross Domestic Product (IPD) published
monthly by the U.S. Department of Commerce, Bureau of Economics for the
calendar quarter that is two calendar quarters immediately prior to the
calendar quarter in which delivery occurs.
The PP(D) shall be determined using the first published values for the C1 and
C2 available at the time of delivery hereunder, and no recomputation of the
PP(D) shall be made as a result of any subsequent revision of such value.
If the method for computing the IPD is modified from that existing as of the
date of this Agreement or if the U.S. Department of Commerce, Bureau of
Economics (hereinafter "Bureau") or any successor U.S. Agency ceases to publish
the IPD, and if the Bureau or any such agency states that the index as so
modified or another index then being published by the Bureau or such agency is
substantially equivalent to the IPD, then such index shall be the replacement
index for purposes of determining the Purchase Price for deliveries made
subsequent to such modification or cessation. If, however, the IPD is rebased
after the date of this Agreement, such rebasing shall not be deemed a
modification requiring a replacement index for purposes of determining the
Purchase Price for deliveries made subsequent to such
7
8
rebasing. In the event the Bureau or any such agency does not state that
the modified index then being published by the Bureau or such agency is
substantially equivalent to the IPD, then, within thirty (30) days after
one Party notifies the other Party of such modification or cessation of
publication, the Parties shall agree upon a replacement index for
purposes of determining the Purchase Price for deliveries made
subsequent to such modification or cessation and as to which no Purchase
Price has been determined under this Agreement. Any replacement index
shall, to the greatest extent practicable, be substantially equivalent
to the IPD.
4.2 All costs in connection with the delivery of Concentrates to
Buyer under this Agreement, including, without limitation, all
logistical, packaging, insurance, transporting, handling, weighing,
sampling, assaying, and administrative costs shall be paid by Seller.
4.3 The total amount due Seller by Buyer hereunder shall be (1) the
product of the Purchase Price as determined pursuant to this Article 4
multiplied by the number of pounds U(3)O(8) of Concentrates delivered to
Buyer in accordance with Article 3 hereof, less (2) any fees, charges
and surcharges assessed by the Converter and not paid by Seller as a
result of Seller's failure to make timely delivery of conforming
Concentrates in accordance with Articles 3.1 or 3.2 hereof. Seller shall
provide Buyer with an invoice containing payment instructions prior to
or coincident with Seller's delivery of Concentrates. Such invoice,
addressed to Buyer, should be sent to Southern Nuclear Operating
Company, Inc., as agent for Buyer, in accordance with the
provisions of Article 12 hereof. Buyer shall make payment of the amount
8
9
due Seller by electronic funds transfer to a bank account as designated by
Seller in Seller's invoice no later than thirty (30) days after the last to
occur of the following: (1) the Delivery Date; or (2) receipt by Buyer of
Seller's invoice. Receipt by Buyer of written confirmation from the
Converter stating that the appropriate quantity of conforming Concentrates
has been transferred to the account of Buyer and the date of such transfer
shall be a condition precedent to Buyer's payment of Seller's invoice.
ARTICLE 5: TAXES, DUTIES, AND TARIFFS
Seller shall be responsible for all taxes, custom duties, tariffs,
assessments and other fees and charges (hereinafter "governmental assessments")
levied or imposed by any foreign, federal, state, local or other governmental
authority in connection with the mining, processing, transport, delivery, sale,
import, export, possession, ownership or use of the Concentrates prior to or
coincident with Seller's sale and Book Transfer of the Concentrates to Buyer
hereunder, including, without limitation, all such governmental assessments
levied as a result of the Origin of the Concentrates.
Buyer shall be responsible for all governmental assessments levied or
imposed by any foreign, federal, state, local or other governmental authority
in connection with the processing (including, without limitation, conversion,
enrichment and fabrication), transport, delivery, sale, import, export,
possession, ownership or use of the Concentrates subsequent to Seller's sale
and Book Transfer of the Concentrates to Buyer hereunder, including any sale
and other taxes imposed on the sale and transfer of title to such Concentrates
to Buyer.
9
10
ARTICLE 6: LICENSES AND PERMITS
6.1 Seller shall obtain or cause to be obtained any and all licenses,
permits and other authorizations that may be lawfully required by any
agency of any government in order that Seller, or any party on its behalf,
can legally sell and Book Transfer to Buyer the Concentrates subject to
sale to Buyer hereunder and, upon Buyer's request, shall furnish to Buyer
proof of such licenses, permits and other authorizations.
6.2 Buyer shall obtain or cause to be obtained any and all licenses,
permits and other authorizations that may be lawfully required by any
agency of any government in order that Buyer, or any party on its behalf,
can legally purchase and accept Book Transfer from Seller of the
Concentrates subject to sale to Buyer hereunder and, upon Seller's request,
shall furnish to Seller proof of such licenses, permits and other
authorizations.
ARTICLE 7: FORCE MAJEURE
7.1 Neither Party shall be responsible for or liable to the other Party
for any delay in or failure of Seller to deliver of Buyer to accept
Concentrates hereunder where such delay or failure is due to any event
beyond the reasonable control of the party whose performance is affected by
the event, such as the following events if beyond the reasonable control of
the Party claiming force majeure; accident; fire; explosion; flood; Act of
God; war; foreign war; riot; rebellion; revolution; blockade; strike;
lockout or other labor dispute; requirement, regulation, restriction or
other
10
11
act or failure to act of any government or governments, whether legal or
otherwise; act of public enemies; impossibility of securing or delay in
securing fuel supplies, or electric power, necessary for operation of mines and
plants where the Concentrates will be produced; damage to or destruction of
such mines or plants; delays or interruptions in transportation by rail, water,
or otherwise. An outage or shutdown of any of the Nuclear Units shall be deemed
an event of force majeure hereunder, if such outage or shutdown extends, or is
reasonably anticipated to extend, for a period of 180 days or more, in the
aggregate, during any 365 day period. Except for failure of performance by a
third party due to an event of force majeure under such third party's agreement
with Seller or Buyer, any failure by any third party to comply with Seller's or
Buyer's instructions or any breach of an agreement between such third party and
Seller or Buyer shall not constitute force majeure and shall not excuse or
mitigate any failure by Seller or Buyer to perform under this Agreement. The
Party claiming force majeure hereunder shall promptly notify the other Party
within three (3) business days of the circumstances of such force majeure
event, shall advise the other Party, if and when known, of the likely duration
of the force majeure event, shall use all reasonable diligence to remedy the
force majeure event, or to avoid or minimize the consequences of suspending
performance of the obligation affected by the force majeure event, provided
that nothing herein shall require such Party to settle strike or other labor
disputes contrary to its interest, and shall continue with its obligations
after the force majeure event has ceased to exist. Except as otherwise provided
in Article 7.2 hereof, performance of the obligation
11
12
affected by the force majeure event shall be deemed suspended so long as such
force majeure event continues to prevent or delay performance.
If a force majeure event partially prevents or delays the delivery or
acceptance of Concentrates hereunder, the obligation of the Parties to deliver
and accept Concentrates shall be suspended proportionately during the duration
of the force majeure event, and the Parties shall remain obligated to deliver
and accept that portion of Concentrates that is not affected by such force
majeure event.
7.2 If any event(s) of force majeure prevents or delays the delivery or
acceptance, or is reasonably anticipated to prevent or delay the delivery or
acceptance, of a Delivery Quantity for a period in excess of sixty (60) days
beyond the Delivery Date, the Party not claiming force majeure may elect, in
its sole discretion, to terminate such Delivery Quantity and have such quantity
of Concentrates removed from the delivery and purchase obligations of this
Agreement. If one or more events of force majeure continue, or are reasonably
anticipated to continue, for a period of 180 days, in the aggregate, during any
twelve (12) month period, either Party may elect, in its sole discretion and
upon thirty (30) days written notice to the other Party, to terminate this
Agreement with respect to the balance of the quantities of Concentrates which
have not been delivered hereunder, or any portion thereof. If a force majeure
event suspends delivery and acceptance obligations for a Delivery Quantity of
Concentrates, or any portion thereof, and the Party not claiming force majeure
does not elect to terminate the delivery of such Concentrates or terminate this
Agreement pursuant to this Article 7.2, the Parties
12
13
shall make mutually acceptable, reasonable arrangements, including any
reasonable extension of the Term of this Agreement, for the delivery of
such quantity of Concentrates after the cessation of the force majeure
event. No termination pursuant to this Article 7.2 shall affect the
obligations and liabilities of the Parties under this Agreement with
respect to previously delivered Concentrates or the balance of the
quantities of undelivered Concentrates which were not terminated.
ARTICLE 8: WARRANTIES
8.1 Seller represents and warrants to Buyer that (1) Seller has the right
and is duly authorized to enter into and perform, and will perform, this
Agreement in accordance with its terms and conditions, (2) Seller will
transfer to Buyer good and marketable title to all Concentrates delivered
or transferred to Buyer under this Agreement and that such title will be
free of all claims, liens, charges and encumbrances whatsoever, (3) all
concentrates delivered or transferred to Buyer under this Agreement will
meet the Converter's Specifications for commercial, natural uranium
concentrates in effect as of the Delivery Date, and (4) the Concentrates to
be delivered or transferred under this Agreement will not have been
obtained in any manner or through any transaction that would violate United
States laws or regulations or have been used in or resulted from any type
or transaction which would circumvent any of the Suspension Agreement as
amended.
In the event that any Concentrates delivered under this Agreement fail
to conform to the above warranties, Seller shall, at its own expense and
within thirty (30) days after receipt of written notice of such
nonconformance, replace all
13
14
nonconforming Concentrates by delivering to the Converter an equal
quantity of conforming Concentrates, and shall be responsible for
removal from the Converter of the nonconforming Concentrates; provided
however, that if Concentrates delivered hereunder fail to meet the
Converter's Specifications and if permitted by the Converter in lieu of
replacement of Concentrates, Seller may pay the applicable fees, charges
and surcharges assessed by the Converter, as a result of the
nonconformance, in order to have the Concentrates accepted for
conversion. The Parties agree that conformance of the Concentrates to
the Converter's Specifications shall be determined by the Converter.
8.2 Seller represents and warrants to Buyer that the delivery and
sale of Concentrates in connection with this Agreement shall comply with
the Russian Suspension Agreement Amendment, including, without
limitation, that the United States Origin Concentrates delivered
hereunder are "newly produced" within the meaning of the Russian
Suspension Agreement Amendment.
THE WARRANTIES SET FORTH IN THIS ARTICLE 8 (WARRANTIES) ARE EXCLUSIVE,
AND NO OTHER WARRANTIES OF ANY KIND, WHETHER STATUTORY, WRITTEN, ORAL OR
IMPLIED (INCLUDING WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE OR
MERCHANTABILITY) SHALL APPLY.
ARTICLE 9: CONSEQUENTIAL DAMAGES AND LIMITATION OF LIABILITY
In no event shall either Party be liable to the other Party for any
indirect, incidental, special or consequential damages of any nature,
including, but not limited to,
14
15
loss of profits, loss of use of uranium or revenue, purchase of replacement
power, expenses involving cost of capital, or claims of customers, whether such
damages are a result of breach of this Agreement or otherwise; provided
however, that fees, charges and surcharges assessed by the Converter as a
result of Seller's failure to make timely delivery of conforming Concentrates
in accordance with Articles 3.1 or 3.2 shall be paid by Seller. In no event
shall either Party's total liability to the other Party for claims of any kind
arising out of or connected with or resulting from this Agreement, including
any action arising in tort, contract, or negligence, exceed the Purchase Price
times the number of pounds of Concentrates to be delivered by Seller to Buyer
hereunder as of the date of execution of this Agreement.
ARTICLE 10: APPLICABLE LAW; ARBITRATION
This Agreement shall be governed by and construed in accordance with
the substantive laws of the State of Georgia and applicable United States
federal law, including, without limitation, the Federal Arbitration Act, 9
U.S.C. p 1 et. seq. (the "FAA"). Any disputes, claims, or controversies arising
out of or relating to the validity, interpretation, performance, or breach of
this Agreement shall be finally settled through arbitration in accordance with
the Commercial Arbitration Rules of the American Arbitration Association (the
"Rules"); provided, however, that should such Rules conflict with the provisions
hereof, the provisions of this Agreement shall govern.
Either Party shall have the right to request arbitration by giving
written notice to the other Party and to any regional office of the American
Arbitration Association. Three (3) arbitrators shall be appointed by the
American Arbitration Association in accordance
15
16
with the Rules. The decision of the majority of the three arbitrators shall be
final and binding on the Parties as to such matters that are submitted to and
determined by them, and judgment upon the decision rendered by the arbitrators
may be entered in any court having jurisdiction thereof. The site of any
arbitration proceeding shall be Atlanta, Georgia and the cost of the
arbitration shall be shared equally by the Parties unless the arbitrators
decide otherwise. All statutes of limitations which would otherwise be
applicable to an action brought by a Party in court shall be applicable in any
such arbitration proceeding, and initiation of an arbitration proceeding under
this Agreement shall be deemed the commencement of an action for such purposes.
The Parties acknowledge that the subject of this Agreement is a
transaction involving interstate commerce, and that the enforceability of this
Article 10 is governed by the FAA. This provision is a material term of the
Parties' agreement and the failure of either Party to comply with this
provision will release the Party not in default under this provision, at its
option, from its future obligations under the Agreement, notwithstanding any
claim that this provision is not specifically enforceable under the laws of the
State of Georgia. By executing this Agreement, the Parties waive their
respective right to trial by jury of disputes, claims or controversies arising
out of or relating to the validity, interpretation, performance or breach of
this Agreement.
ARTICLE 11: CONFIDENTIALITY
The terms of this Agreement and all data and information coming into
possession of either Party by virtue of this Agreement shall be deemed to be
confidential and each Party will use reasonable efforts to avoid disclosure to
any third party (other than to
16
17
Seller's, Buyer's or their agents' employees, accountants, attorneys,
affiliates or Co-Owners, government authorities having appropriate
jurisdiction, and other parties where required by law or regulation, in which
event consent of the other Party shall not be required) without the prior
written consent of the other Party, in which event consent of the other Party
shall not be unreasonably withheld. However, either Party may disclose all or
part of this Agreement on a confidential basis without such consent to
investors or financial institutions if such disclosure is for the purpose of
financing the transaction encompassed in this Agreement or other company
operations. Either Party compelled by a court or regulatory agency to disclose
such data or information or any part of this Agreement shall so notify the
other Party in writing at the earliest possible time and shall use reasonable
efforts to limit such disclosure to the narrowest possible group.
Notwithstanding the foregoing each Party retains the right to disclose
information regarding this Agreement to governmental authorities having
jurisdiction, including, without limitation, the USDOC for the purposes of
confirming this Agreement as part of a matching transaction as set forth in
Article 14 hereof.
ARTICLE 12: NOTICES
All notices, invoices or other communications required or which may be
given hereunder shall be addressed and forwarded as follows:
If to Buyer: Southern Nuclear Operating Company, Inc.
(Agent for Georgia Power Company)
▇.▇. ▇▇▇ ▇▇▇▇ (▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇)
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
or
17
18
42 Inverness Center Parkway (Express Delivery)
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Manager, Nuclear Fuel Services
Phone : 205/▇▇▇-▇▇▇▇
Fax : 205/▇▇▇-▇▇▇▇
If to Seller: Uranium Resources, Inc.
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: Vice President-Marketing
Phone: 214/▇▇▇-▇▇▇▇
Fax: 214/▇▇▇-▇▇▇▇
Any notice, invoice or other communication hereunder shall be deemed to have
been properly given if in writing and personally delivered, sent by courier
service, sent by United States mail, or transmitted by facsimile (telecopier)
if confirmed promptly by one of the foregoing methods, and shall be deemed to
have been given on the date of receipt.
All invoices submitted by Seller to Buyer hereunder should be addressed to
Georgia Power Company and sent to Southern Nuclear Operating Company, Inc. in
accordance with Buyer's address as set forth herein.
Either Party may, at any time, by written notice to the other Party given as
aforesaid, change its address to which notices and other communications
directed to it shall be sent thereafter.
18
19
ARTICLE 13: ASSIGNMENT
This Agreement may not be assigned by either Party without the prior
written consent of the other Party, which consent shall not be unreasonably
withheld; provided that (i) either Party may, without such consent, assign this
Agreement and its rights or obligations hereunder to a subsidiary, affiliate,
trust, bank, or financial institution for the purposes of, or in connection
with, the securing of financing related to this transaction, and (ii) Buyer may,
without such consent, assign this Agreement to any direct or indirect
subsidiary of The Southern Company or assign this Agreement, in whole or in
part, to any entity which may be or become a joint owner with Buyer of any
nuclear facility. Notice to the non-assigning Party of any such assignment
pursuant to the foregoing shall be given promptly by the assigning Party. In
no event shall any such assignment be construed as a novation or discharge of
the assigning Party's obligations hereunder. Except as so provided, any
purported assignment hereof shall be null and void.
ARTICLE 14: COMPLIANCE WITH THE SUSPENSION AGREEMENT
Buyer and Seller agree that this Agreement shall not become effective
until confirmed by the USDOC as a matched sale transaction to which Buyer is
entitled in accordance with the August 1, 1996 USDOC final decision regarding
importation of uranium of Russian Federation, Kazakstan, and Uzbekistan
Origin. If such confirmation is not obtained by September 30, 1996, this
Agreement shall be null and void. Buyer shall submit this Agreement to the
USDOC for confirmation within five (5) days after the date of this Agreement
and shall use its best efforts to obtain such confirmation, including, without
limitation, submittal of all information, certifications and documentation
required by the
19
20
USDOC for such certification. Seller shall furnish to the USDOC any
certification required of Seller and shall reasonably cooperate with Buyer in
supplying other information, or necessary documentation within Seller's
possession, which may be required by the USDOC for the confirmation of this
Agreement.
ARTICLE 15: FOREIGN CORRUPT PRACTICES ACT
Seller acknowledges that because Buyer is subject to the provisions of
United States Public Law 95-213, the Foreign Corrupt Practices Act of 1977 and
any amendments thereto ("FCPA"), Seller agrees to meet and comply with the
standards of conduct required thereby. Seller specifically understands and
agrees that Seller shall not make any offer, payment, promise to pay, or
authorization of the payment of any money, or offer, gift, promise to give, or
authorization of the giving of anything of value, to any foreign official, any
foreign political party or official thereof or any candidate for foreign
political office, or any other person that is contrary to the prohibitions
set forth in the FCPA, including, without limitation, Sections 78dd-1(a) or
78dd-2(a) thereof ("Improper Payments"). Seller hereby further represents and
warrants that within the meaning of the FCPA: (a) neither Seller, nor any other
person affiliated with Seller's business or any representative or agent of
Seller, is a foreign official or official of a foreign political party, or a
candidate for foreign political office, or a person who will offer all or a
portion of the consideration received by Seller to any foreign official,
foreign political party or official thereof, or to any candidate for foreign
political office, and (b) that the consideration, or any portion thereof, paid
by Buyer to Seller, pursuant to this Agreement or otherwise, constitutes
consideration only for property or services rendered and is not given, directly
or indirectly, through such
20
21
party or any person interested in such party, to influence any act or decision
of a foreign official in his official capacity or to induce such foreign
official to use his or her influence with a foreign government or
instrumentality to affect or influence any act or decision of such government
or instrumentality in order to assist Buyer in obtaining or retaining business.
In the event that Seller is found to have made any Improper Payment or
otherwise violated the provisions of this Article 15, then in addition to other
rights and remedies available to Buyer hereunder and under applicable law,
Buyer shall have the right to recover from Seller or withhold any consideration
due to Seller under this Agreement or any agreement entered into pursuant hereto
(i) the amount or value of the Improper Payment, and (ii) any fines, expenses
or attorneys' fees incurred by Buyer in connection with the Improper Payment or
violation hereof.
ARTICLE 16: AGENT
Southern Nuclear Operating Company, Inc., a Delaware corporation, is
hereby designated by Buyer as agent for Buyer to act for and on behalf of Buyer
for the purposes of giving or receiving any notice, demand, or request required
or authorized by this Agreement, and for such other administrative purposes as
may be designated by Buyer. Buyer may designate a new agent by giving Seller
thirty (30) days' notice of intention to do so, and in that event, the
authority of Southern Nuclear Operating Company, Inc., as agent for Buyer,
shall cease and the newly designated agent shall be substituted therefor.
ARTICLE 17: BENEFITED PARTIES
Buyer has the right and obligation to construct, operate, and maintain, on
behalf of itself and the Co-Owners, the ▇. ▇. ▇▇▇▇▇ Nuclear Plant and the
Vogtle Electric Generating
21
22
Plant and has the right to enter into agreements for exercising such
right and performing such obligations. As their interests appear, each and
every right, benefit, and remedy accruing to Buyer likewise accrues to the
Co-Owners and to the Southern Company including, but not limited to, the right
to enforce this Agreement in their own name or names, provided, however that
the foregoing shall not be construed as providing rights, benefits, or remedies
to the Co-Owners or The Southern Company which when combined with those
of Buyer exceed the rights of Buyer under this Agreement. Notwithstanding the
foregoing, Buyer shall be responsible for all compensation to be paid to Seller
hereunder, and Seller shall submit its invoices to Buyer for payment.
ARTICLE 18: ENTIRE AGREEMENT
This Agreement contains the entire agreement between the Parties and
supersedes all other prior negotiations, undertakings, notes, memoranda, and
agreements, whether written or oral, concerning the subject matter hereof.
ARTICLE 19: WAIVER
No waiver, alteration, amendment, or modification of this Agreement or
other covenant, condition or limitation herein contained is valid unless in
writing and duly executed by each of the Parties hereto. Furthermore, no
evidence of any waiver, alteration, amendment or modification shall be offered
or received in evidence in any proceeding, arbitration or litigation between
the Parties arising out of or affecting this Agreement, or the rights or
obligations of any Party hereunder, unless such waiver, alteration, amendment
or modification is in writing, and duly executed by the Parties. Further, the
provisions of this Article 19 may not be waived except as herein set forth.
22
23
ARTICLE 20: MISCELLANEOUS
20.1 If any one or more of the provisions of this Agreement or any
application thereof shall be invalid, illegal, or unenforceable in any
respect, the validity, legality, or enforceability of the remaining
provisions and other applications thereof shall not in any way be
affected or impaired.
20.2 The provisions of this Agreement which by their nature survive
acceptance, performance, and termination or expiration of Concentrates
deliveries hereunder, including, without limitation, the provisions
concerning payment, warranties and other remedies, and confidentiality
shall remain in full force and in effect following termination or
expiration of this Agreement.
20.3 Subject to the provisions of Article 13, this Agreement shall be
binding upon, and shall inure to the benefit of, the Parties and their
respective successors and assigns.
20.4 The captions and headings appearing in this Agreement are
inserted for convenience of reference only and shall not affect the
interpretation or construction of this Agreement or any provision hereof.
20.5 This Agreement may be executed by the Parties hereto in separate
counterparts, each of which when so executed and delivered shall be an
original, but all such counterparts shall together constitute one and the
same instrument.
23
24
IN WITNESS WHEREOF, the Parties have duly executed this Agreement by
their authorized representatives, respectively, as of the day and year first
set forth above.
GEORGIA POWER COMPANY URANIUM RESOURCES, INC.
/s/ ▇. ▇. ▇▇▇▇▇▇▇▇, III /s/ ▇▇▇ ▇. CARD
-------------------------------- ------------------------------
Signature Signature
▇. ▇. ▇▇▇▇▇▇▇▇, III ▇▇▇ ▇. Card
-------------------------------- ------------------------------
Name Name
Executive Vice President-Nuclear Sr. V.P., Marketing
-------------------------------- ------------------------------
Title Title
August 29, 1996 August 26, 1996
-------------------------------- ------------------------------
Date Date
24