SELLER’S SALES CONTRACT No. 161.06.27133-S
Exhibit
10.1
Century
Aluminum of
West
Virginia, Inc.
Xxxxx
0
Xxxxx
Xxxxxxxxxx,
Xxxx Xxxxxxxx 00000
Monterey,
California 26
April
2006
BUYER’S
PURCHASE CONTRACT No. XXXXXXXXX
This
Agreement is made
on
26
April
2006
(the
“Effective
Date”)
between Century Aluminum of
West
Virginia Inc., Xxxxx 0 Xxxxx Xxxxxxxxxx,
Xxxx
Xxxxxxxx 00000, XXX (the
“Buyer”)
and
XXXXXXXX
XX, Xxxxxxxxxxxxxxxxx
0, XX-0000, Xxxx, Xxxxxxxxxxx (the “Seller”).
| 1. |
SCOPE
OF THE AGREEMENT
|
Seller
agrees to sell alumina and Buyer agrees to buy alumina on
the
terms and conditions set out below.
| 2. |
DEFINITIONS
|
1
ton 1
metric
ton or
1000
kilograms or 2204.62 lbs.
US$
and
cents
Means
the lawful currency of the United States of America.
|
INCOTERMS
2000
|
Means
the publication entitled “ICC Official Rules for the Interpretation of
Trade Terms - Incoterms 2000”, published by the International Chamber of
Commerce (2000 edition).
|
|
|
Alumina
Means xxxxx calcined metallurgical grade alumina from
any one of the following source refineries at
Seller’s option and any
other mutually agreed source origins:
|
|
|
*
|
|
Banking
Day
|
Means
any day except a Saturday or Sunday on which banks in the City of
New
York, New York, United States of America are generally open for the
conduct of business.
|
|
Business
Day
|
Means
any day except a Saturday or Sunday on which banks in the City of
New
York, New York, United States of America are generally open for the
conduct of business.
|
|
Calendar
Month
|
Refers
to a named month in the Gregorian calendar.
|
|
Contract
Period
|
Means
(i) each Contract Year (except the last Contract Year) and (ii) the
period
commencing on the first day of the last Contract Year and ending
on the
last day of the Calendar Month in which this Agreement
terminates.
|
|
Contract
Year
|
Means
2007 and each Year thereafter that falls (in whole or in part) within
the
Term of this Agreement.
|
|
LME
|
Means
the daily
cash settlement price for high grade aluminium,
as
published in Xxxxx’x Metals Week averaged over the Quotational
Period.
|
|
Loss
|
Means,
with respect to this Agreement an amount that a party reasonably
determines in good faith to be its total losses and costs (or gain,
in
which case expressed as a negative number) in connection with this
Agreement as the case may be, including any loss of bargain, cost
of
funding or, at the election of such party but without duplication,
loss or
cost incurred as a result of its terminating, liquidating, obtaining
or
re-establishing any hedge or related trading position (or any gain
resulting from any of them). Loss includes losses and costs (or gains)
in
respect of any payment or delivery required to have been made (assuming
satisfaction of any applicable condition precedent) on or before
the date
of determination of such loss and not made. Loss does not include
a
party’s legal fees.
|
|
Month
of Actual Shipment
|
Means
in respect of any shipment of Alumina
the calendar month in which shipment takes place,
as
evidenced by the Xxxx of Lading date
|
|
Month
of Scheduled Shipment
|
Means
the calendar month in which
the relevant
shipment has been scheduled,
as
per clause 6
below,
or
as otherwise agreed in writing between the parties.
|
|
Quotational
Period
|
Means
the month prior to the Month
of Scheduled
Shipment.
|
|
Year
|
Means
a year in the Gregorian calendar, which shall commence on 1
January
and
end on 31 December.
|
| 3. |
TERM
|
The
term
of this Agreement (the “Term”) shall be from the Effective Date until December
31, 2009.
| 4. |
MATERIAL
AND QUALITY
|
| 4.1 |
Alumina
supplied under this Agreement will comply with the specifications
for the
applicable source refinery attached as per Annex 1. If Seller’s supplier
changes the specifications for alumina produced by such supplier,
Seller
may propose that Buyer accept Alumina conforming to such revised
specifications under this Agreement and Buyer shall not unreasonably
withhold or delay such consent. Seller hereby
warrants
that
Alumina delivered pursuant to this Agreement shall conform to the
chemical
and physical specifications set out in Annex 1 or such other
specifications as are from time to time agreed between Buyer and
Seller in
writing (the “Specifications”).
|
| 4.2 |
Seller
has
the option to provide up
to a maximum of four (4) Alumina sourced origins per Contract Year
(defined as 1 January - 31 December) with the origin(s) under each
Contract Year to be declared by the Seller no later than November
30th
of
the year prior to the Contract Year in question. Seller acknowledges
that
the use of multiple origins may have financial and operational impacts
on
Buyer. Accordingly, each of Seller and Buyer agree to use their reasonable
efforts to establish a mutually acceptable shipping schedule that
avoids
to a practicable extent financial and operational impacts to either
party.
|
| 4.3 |
Seller
has the right to propose alternative supply campaigns after November
30th
which will
be
subject to review
and acceptance by Buyer
at
its discretion,
not to be unreasonably with held or delayed.
|
| 5. |
QUANTITY
|
| 5.1 |
The
following quantities of Alumina shall be delivered under each Contract
Year:
|
|
2007:
|
330,000
MT min/max
|
|
2008:
|
330,000
MT min/max
|
|
2009:
|
330,000
MT min/max
|
| 6. |
SHIPMENT
|
| 6.1 |
Not
later than 60
days prior to the beginning of each Contract Year, Buyer shall
notify
Seller
in
writing of
the amount of Alumina which Buyer expects to require for delivery
in each
Month during the Contract Period, which notice shall include a
proposed
vessel loading schedule for such Contract Year (the “Proposed Vessel
Loading Schedule”).
|
| 6.2 |
The
Proposed Vessel Loading Schedule shall
specify:
|
| (a) |
the
total number of shipments for the relevant Contract Year, each shipment
numbered from one onwards consecutively;
|
| (b) |
the
Month of Scheduled Shipment;
|
| (c) |
the
quantity (lot size) of Alumina to be supplied by Seller and accepted
by
Buyer for each such shipment; and
|
| (d) |
the
preliminary laydays
for each shipment.
|
| 6.3 |
Each
Proposed Vessel Loading Schedule is subject to Seller’s
approval,
which
shall not be unreasonably withheld or
delayed.
|
| 6.4 |
Buyer
and Seller are to mutually agree on a Vessel
Loading Schedule
by
no later than 30th November
of
the year prior to the Contract
Period
in
question. Once approved, the Vessel
Loading Schedule
shall be final and binding on both parties (the “Final Vessel Loading
Schedule”). The Final Vessel Loading Schedule shall not be amended unless
agreed in writing by both
the Seller
and Buyer.
|
| 6.5 |
The
shipments, in lot sizes of between 25,000 - 35,000 MT, are to be
approximately evenly distributed over each Contract Year. Lot sizes
to be
adjusted to reflect the physical limitations of the loading port
origin
and or origins declared for the contract
year.
|
| 6.6 |
Buyer,
for shipping purposes, has the option to declare +/- 5 percent under
each
shipment. with the final shipment in any given Contract Year adjusted
to
reflect the balance Alumina declared under clause 5
above.
|
| 7. |
PACKING
|
In
Bulk
| 8. |
DELIVERY
|
FOB
ST at
the load port of the respective source refinery. All vessels provided
shall
be
suitable for loading and/or discharging and in conformity with the restrictions
and limitations at the respective load ports and/or discharge ports at the
time
of shipping.
| 9. |
PRICE
|
| 9.1 |
2007:The
applicable percentage shall be determined by negotiation between
a
put
and call
pricing range under which Seller has
the right to sell at *
of
the LME per Metric Ton and Buyer has
the right to buy at *
of
the LME per Metric Ton. The applicable percentage shall be agreed
between
Buyer and Seller by no later than November 15th
of
the year preceding the Contract Year in question. If no agreement
is
reached by
that date and
neither party exercises its
right to either put
or
call
by the same date,
then deliveries under the Agreement shall be suspended for the Contract
Year in question.
|
| 9.2 |
2008:
The
applicable percentage shall be determined by negotiation between
a
put
and call
pricing range under which Seller has
the right to sell at *
of
the LME per Metric Ton and Buyer has
the right to buy at *
of
the LME per Metric Ton. The applicable percentage
shall be agreed
between
Buyer and Seller by no later than November 15th
of
the year preceding the Contract Year in question. If no agreement
is
reached by
that date and
neither party exercises its
right to either put
or
call
by the same date,
then deliveries under the Agreement shall be suspended for the Contract
Year in question.
|
| 9.3 |
2009:
The
applicable percentage shall be determined by negotiation between
a
put
and call
pricing range under which Seller has
the right to sell at *
of
the LME per Metric Ton and Buyer has
the right to buy at *
of
the LME per Metric Ton. The applicable percentage
shall be agreed
between
Buyer and Seller by no later than November 15th
of
the year preceding the Contract Year in question. If no agreement
is
reached by
that date and
neither party exercises its
right to either put
or call
by the
same date,
then deliveries under the Agreement shall be suspended for the Contract
Year in question.
|
| 10. |
PAYMENT
|
| 10.1 |
Net
30 days after Xxxx of Lading date by
telegraphic transfer
against presentation of the following standard shipping
documents:
|
| (a) |
Seller’s
commercial invoice in triplicate.
|
| (b) |
Full
set (3/3) of clean on board ocean Bills of Lading, made out To Order
and
Blank Endorsed, marked “Freight payable as per Charter
Party”.
|
| (c) |
Certificate
of Weight in triplicate issued by an
independent surveyor.
|
| (d) |
Certificate
of Quality/Analysis in triplicate issued by the
producer of the Alumina (the
“Producer”).
|
| (e) |
Certificate
of Origin in triplicate issued by the
Producer.
|
| 11. |
FREIGHT
|
| 11.1 |
Buyer
and Seller may agree
by no later than November 30th of the Year prior to the Contract
Year in
question that Seller may provide freight services to Buyer on terms
and
conditions to be agreed by Seller and Buyer whereby Seller or its
nominee will provide freight services to Buyer in addition to those
obligations of Seller under this Agreement.
|
| 11.2 |
If
Buyer and Seller mutually agree on a freight services agreement,
the cost
of the same will be added as a cost per Metric Ton to the unit value
as
determined under clause 9
above
for the Contract
Year
in
question.
|
| 12. |
LOADING
CONDITIONS
|
The
standard Producer terms and conditions at the time of shipment at the port
of
loading for the respective source refinery are to apply, including applicable
charter party demurrage and despatch rate at the time of the shipment. In case
no demurrage / despatch rate is mentionedin the standard loadport conditions
then the demurrage/ despatch rate shall be as per the Charter Party (C/P).
Seller shall be responsible for promptly supplying to Buyer a copy of such
load
port requirements, which shall form a part of, and be deemed included in, this
Agreement once the Final Vessel Loading Schedule for a particular Contract
Year
has been agreed.
| 13. |
INSURANCE
|
| 13.1 |
If
Buyer and Seller agree
that Seller shall provide freight services during the relevant Contract
Year,
then Seller shall be responsible for providing insurance from loading
through to discharge port for the full CIF value, calculated in accordance
with the terms of this Agreement against full risks in accordance
with
current Institute Marine
Cargo
Clauses (all risks) including War Risks and SRCC, average irrespective
of
percentage, with the addition of the customary 10% (ten
percent).
|
| 13.2 |
In
addition, Seller shall
provide
Buyer with
an
Original Insurance certificate in duplicate for 110% of invoice value
covering All Risks, War Risks and SRCC Clauses.
|
| 14. |
TITLE
AND RISK
|
Title
and
risk
will
pass from Seller to Buyer when the Alumina passes over the ship’s rail at the
port of loading.
| 15. |
DETERMINATION
OF WEIGHT
|
Seller
shall, at its cost, arrange for the determination of the weight of the shipload
at the load
port by
means of draft survey from an
independent surveyor before commencement and after completion of loading and
shall obtain a certificate of weight from an independent qualified marine
surveyor. The determined weight shall be reported on the Xxxx of Lading and
for
all purposes will be final, binding and conclusive as to the weight of the
shipload. Buyer shall have the right to have a representative present at such
weight determination at Buyer’s expense.
| 16. |
SAMPLING
|
Seller
shall, at its cost, arrange for the Producer
to take
a bulk sample of the Alumina from the shipload in accordance with the Producer’s
standard procedures and divide it into three
(3)
equal
parts. Each of those samples shall be placed in a sealed sample container.
A
label showing Seller’s name, name of vessel, weight of the shipload and Xxxx of
Lading date shall be affixed to each sample container. One sample shall be
delivered to Buyer (along with a report of the analysis), and two shall be
retained by Seller or Producer,
one for
its own analysis and one for a referee analysis, in case such analysis is
required by either party. Buyer shall have the right to have a representative
present at such sampling at Buyer’s expense.
| 17. |
ANALYSIS
|
| 17.1 |
Seller
shall, at its cost, arrange for analysis of its own alumina samples
taken
pursuant to Clause
16
above,
in accordance with
the Producer’s
customary analysis
procedures. Unless a referee analysis is carried out in accordance
with
Clause
18 below, Seller's sample analysis
shall be final, binding and conclusive on the parties
hereto.
|
| 17.2 |
The
Alumina shall be deemed to conform
to
the applicable Specifications unless Buyer notifies Seller within
30
(thirty)
days
of receipt of the Alumina that said Alumina does not conform to the
Specifications and the nature of the non-conformity. Within 14
(fourteen)
days
of receipt of any notice of non-conformity, Seller shall advise Buyer
whether or not it accepts that the relevant Alumina does not conform
with
the applicable Specifications.
|
| 18. |
REFEREE
ANALYSIS
|
In
case
of disagreement between Buyer and Seller about the conformity
of any
Alumina supplied under this Agreement,
then at
the request of either party the sample retained by Seller/Producer
for
referee analysis shall be analysed in accordance with the Producer’s
standard analysis procedures by a laboratory mutually agreed upon by the parties
(or, failing agreement, Societe Generale de Surveillance SA), and the analysis
of such laboratory shall be final, binding and conclusive on the parties. Each
party shall be entitled (at its own cost) to be represented during such referee
analysis. The cost of the said analysis will be borne by the party whose results
differ most from those given by the referee laboratory.
| 19. |
FAILURE
TO MEET SPECIFICATIONS
|
| 19.1 |
If
any Alumina delivered hereunder does not meet the Specifications
(“Non-Conforming Alumina”), Buyer and Seller will endeavour to reach
agreement on what actions should be taken with respect thereto. If
and to
the extent that Buyer and Seller reach any agreement with respect
to any
action to be taken with respect to any Non-Conforming Alumina, the
provisions of this Section shall be deemed to be modified accordingly
(but
only to the extent necessary to reflect such agreement and only in
respect
of such Non-Conforming Alumina).
|
| 19.2 |
In
respect of any Non-Conforming Alumina delivered hereunder, Buyer
shall
have the option to:
|
| (a) |
nevertheless
take delivery subject to payment to Buyer by Seller of compensation
as
hereinafter provided. The parties shall confer in an endeavour to
agree
upon the compensation to be paid to Buyer by Seller to compensate
Buyer
for any loss in value of the alumina attributable to the alumina
not
meeting the Specifications. If the parties are unable to agree upon
an
amount of compensation payable by Seller, the question shall be referred
to arbitration pursuant to Clause 22
and in that arbitration the arbitrators shall be bound by the provisions
of this clause and clauses
28 and 29 below; or
|
| (b) |
promptly
reject the Alumina by giving written notice to Seller. If Buyer
elects
to reject any Non-Conforming
Alumina:
|
| (i) |
title
to such Non-Conforming Alumina shall revert to Seller on the date
on which
Buyer gives
notice thereof;
provided that risk of loss of such Non-Conforming Alumina shall remain
with Buyer until Buyer ships, disposes of or otherwise deals with
the
Non-Conforming Alumina as directed
by Seller (acting reasonably);
|
| (ii) |
Seller
shall refund any amount paid by Buyer for such Non-Conforming
Alumina;
|
| (iii) |
upon
receipt by Buyer of the
amounts
required pursuant to clause (iv)
below, Buyer will ship, dispose of or otherwise deal with the
Non-Conforming Alumina in such manner as may be directed by Seller
(acting
reasonably);
and
|
| (iv) |
Seller
shall reimburse Buyer for (i) all shipping, insurance and other
out-of-pocket direct costs reasonably incurred and documented by
Buyer in
carrying out the directions of Seller;
and (ii) the Replacement Losses if any, (as defined in
clause 19.3 below)
incurred by Buyer in procuring alumina from third parties as a substitute
for Non-Conforming Alumina;
or
|
| (c) |
Seller
and Buyer may agree for a replacement cargo to be delivered to Buyer
on
terms to be agreed.
|
| 19.3 |
“Replacement
Losses” shall mean
the excess, if any, of the
purchase price,
transportation, insurance and freight costs actually incurred by
Buyer,
acting reasonably, in procuring alumina from third parties as a substitute
for the Non-Conforming Alumina and
the
purchase price,
transportation, insurance and freight costs Buyer would have paid
to
obtain Alumina
in
accordance with the terms of this Agreement.
The precise amount payable in respect of Replacement Losses shall
be
determined
(i)
by
Buyer acting reasonably, with a statement of such Losses and copies
of
calculations, invoices and the methodology in respect of Buyer’s
determination of such Losses provided by Buyer in writing to Seller
not
later than the 30th
day after the date on which such Alumina is finally determined to
be
Non-Conforming Alumina in accordance with this Agreement, and (ii)
confirmed in writing by Seller within 10 Business
Days of receipt, failing which either party may refer such determination
to arbitration pursuant to Clause 22.
|
| 19.4 |
In
respect of any Non-Conforming Alumina delivered hereunder,
Buyer shall use its commercially reasonable efforts to
utilize the remedy specified in Clause 19.2 (a) above. Should this
remedy
not be possible, despite Buyers best efforts to do so, then Buyer
may
elect one of the above remeidies specified in Clause 19.2 (b).
If
Buyer fails to make any election hereunder, the Non-Conforming Alumina
shall be deemed for the
purposes of this Agreement to meet the
Specifications.
|
| 19.5 |
The
remedies conferred on Buyer in respect of any Non-Conforming Alumina
delivered hereunder shall be the sole and exclusive remedies of Buyer
against
Seller in
respect of such Non-Conforming Alumina and, except as expressly set
out in
this Clause
19, Seller shall not be liable to Buyer or
any of its affiliates (whether
in contract, tort or otherwise) for any loss or damage of any nature
arising out of such Non-Conforming Alumina.
|
| 20. |
FORCE
MAJEURE
|
| 20.1 |
“Force
Majeure” means any cause or event reasonably beyond the control of a
party, including, but not limited to fires, earthquakes, lightning,
floods, explosions, storms, landslides and other acts of natural
calamity
or acts of god; navigational accidents or maritime peril; vessel
damage or
loss; strikes, grievances, actions by or among workers or lock-outs
(whether or not such labour difficulty could be settled by acceding
to any
demands of any such labour group of individuals); accidents at, closing
of, or restrictions upon the use of mooring facilities, docks, ports,
harbours, railroads or other navigational or transportation mechanisms;
disruption or breakdown of, storage plants, terminals, machinery
or other
facilities (except to the extent such disruption or breakdown is
caused by
the wilful misconduct or gross negligence of Seller); acts of war,
hostilities (whether declared or undeclared), civil commotion, embargoes,
blockades, terrorism, sabotage or acts of the public enemy; any act
or
omission of any governmental authority; good faith compliance with
any
order, request or directive of any governmental authority; curtailment,
interference, failure or cessation of supplies beyond the reasonable
control of a party; or any other cause beyond the reasonable control
of a
party, whether similar or dissimilar to those above and whether
foreseeable or unforeseeable, which, by the exercise of due diligence,
such party could not have been able to avoid or overcome. A party’s
inability economically to perform its obligations under this Agreement
or
financial hardship shall not constitute an event of Force
Majeure.
|
| 20.2 |
Subject
to the terms of this Agreement, neither party shall be liable to
the other
if it is rendered unable by an event of Force Majeure to perform
in whole
or in part any obligation or condition of this Agreement, except
for any
payment or indemnification obligations, for so long as the event
of Force
Majeure exists and to the extent that performance is prevented or
delayed
by the event of Force Majeure; provided, however, that:
|
| (a) |
the
party prevented from performing shall use reasonable
efforts
to
avoid or remove the event of Force Majeure,
including, without limitation, if
Seller declares a
Force
Majeure
in
good faith
in
relation to an origin which has
been accepted or deemed to have been accepted under clause
4 above, then the Seller shall use reasonable efforts to source an
alternative cargo to that originally affected by the Force Majeure
and
the
time for performance of this Agreement shall be extended until the
earlier
of the duration of the Force Majeure event and the time reasonably
necessary for Seller to
source an
alternative cargo to that originally affected by the Force Majeure;
|
| (b) |
the
settlement of strikes or other events of labour unrest shall
lie
entirely within the discretion of the party having the difficulty
and
such
party shall
not be required to settle such strikes or labour unrest by acceding
to the
demands of the opposing party when such course of action is deemed
inadvisable by
the party having the difficulty;
and
|
| (c) |
if
any Force Majeure limits rather
than prevents Seller’s
production or delivery of Alumina
then
Seller shall be obligated to deliver to Buyer, on a proportional
basis,
such
quantity from the actually produced or deliverable total quantity,
in the
proportion of
Seller’s annual commitment to Buyer and Seller’s total combined annual
commitment to all the purchasers under Seller’s sales agreements with
respect to the sale and delivery of Alumina in effect during the
period of
such Force Majeure.
|
| 20.3 |
During
the period that performance by one of the parties of a part or whole
of
its obligations has been suspended by reason of an event of Force
Majeure,
the other party likewise may suspend the performance of all or a
part of
its obligations to the extent that such suspension is commercially
reasonable, except for any payment and indemnification
obligations.
|
| 20.4 |
The
party rendered unable to perform shall give prompt (and in any event
to
the extent practicable, within one Business
Day after becoming aware of
the Force Majeure event)
written notice to the other party of the occurrence of a Force Majeure
event, including, to the extent feasible, the details,
the expected duration and
the volume of products affected. Such party also shall promptly notify
the
other when the event of Force
Majeure
is
terminated.
|
| 20.5 |
Upon
a Force Majeure affecting Seller, Buyer may elect to either:
|
| (a) |
in
circumstances where the inability of Seller to deliver Alumina to
Buyer
would in the reasonable opinion of Buyer lead to a situation whereby
the
stocks of alumina at Buyer’s (or
Buyer’s affiliate’s) smelter
would reach critically low levels, Buyer may, upon written notice
to
Seller purchase from other suppliers any or all of the quantities
of
alumina
which Seller is or expects to be unable to deliver and
(i) Seller
shall not be liable to Buyer for any cost, expense or loss whatsoever
of
Buyer arising out of any purchase Buyer may make from other suppliers;
(ii)
Buyer
shall give Seller written notice of any such purchase
(the “Covered Alumina”),
the amount of which shall be deducted from the quantity to
be purchased during
the Contract Period in which Buyer makes such purchase
and (iii) Seller’s obligation to source an alternative supply under clause
20.2(a) shall cease with respect to the Covered Alumina;
or
|
| (b) |
extend
the term of this Agreement to the extent that Seller has invoked
this
provision (in which case
the price for Alumina in effect for the extended term shall be the
same as
the price in effect for Alumina scheduled to be delivered but not
delivered during the Force
Majeure).
|
| 20.6 |
Upon
a Force Majeure affecting Buyer, Seller may elect to
either:
|
| (a) |
sell
to other buyers the Alumina which Buyer is or expects to be unable
to
accept, and Buyer shall not be liable to Seller for any cost, expense
or
loss arising out of any such sales; Seller shall give Buyer written
notice
of any such sale, the amount of which shall be deducted from the
quantity
purchased
during
the Contract Period in which Seller makes such sale; or
|
| (b) |
extend
the term of this Agreement to the extent that Buyer has invoked this
provision (in
which case
the price for Alumina in effect for the extended term shall be the
same as
the price in effect for Alumina scheduled to be delivered but not
delivered during the Force Majeure).
|
| 20.7 |
Notwithstanding
the foregoing provisions, upon a Force Majeure which
continues
for a period of six consecutive months or more, then:
|
| (a) |
for
a Force Majeure affecting Buyer, Seller may, elect at any time thereafter
to terminate this Agreement to the extent of the deliveries of Alumina
affected by the Force Majeure,with immediate effect, provided that
the
Force Majeure is continuing as of the date of such notice, by sending
a
written notice to Buyer as provided in this Agreement announcing
exercise
of such right of termination;
|
| (b) |
for
a Force Majeure affecting Seller, Buyer may elect at any time thereafter
to terminate this Agreement to the extent of the deliveries of Alumina
affected by the Force Majeure, with immediate effect, provided that
the
Force Majeure is continuing as of the date of such notice, by sending
a
written notice to Seller as provided in this Agreement announcing
exercise
of such right of termination
|
Alternatively,
the
party
not affected by the Force
Majeure may continue to exercise its rights as set forth above,
as
applicable, and not exercise the right of termination provided in this
clause.
| 21. |
GOVERNING
LAW/JURISDICTION
|
This
agreement shall be subject to and construed under the laws of the State of
New
York, excluding the rules of conflicts or choice of law and excluding the United
Nations Convention on Contracts for the International Sale of Goods.
| 22. |
ARBITRATION
/ DISPUTE RESOLUTION
|
Any
controversy, dispute, or claim arising out of or relating to this Agreement,
or
the breach thereof, shall be settled by arbitration administered by the American
Arbitration Association under its Commercial Arbitration Rules, and judgement
on
the award rendered by the arbitrators may be entered in any court having
jurisdiction thereof. There shall be three arbitrators, and the arbitration
shall be conducted in the English language in New York, New York,
U.S.A.
| 23. |
TAXES
AND TARIFFS
|
| 23.1 |
Any
taxes, tariffs and duties whether existing or new on the Alumina
or on
commercial documents relating thereto or on the cargo itself, imposed
in
the country of origin shall be borne by
Seller.
|
| 23.2 |
Any
taxes, tariffs and duties whether existing or new on the Alumina
or on
commercial documents relating thereto or on the cargo itself, imposed
in
the country of discharge and/or the importing country shall be borne
by
Buyer.
|
| 24. |
LICENSES
|
Buyerundertakes
that all the necessary import licences and all other authorisations required
for
the alumina have been obtained (and/or will be obtained) for the entire quantity
covered by this Agreement. Buyer furthermore guarantees that such licences
will
remain in force for the Term.
| 25. |
ASSIGNMENT/THIRD
PARTY RIGHTS
|
| 25.1 |
Without
the prior written consent of the other party, which consent shall
not be
unreasonably withheld, or delayed, neither party may assign its rights
or
obligations under this Agreement in full or in part, except
that:
|
| (a) |
Seller
and its
assigns may without such consent assign all or a portion of their
rights
to receive and obtain payment under this Agreement in connection
with
securitisation or bank funding arrangements including the arbitration
and
law clauses herein;
and
|
|
(b)
|
Buyer
and its assigns may without such consent assign all or a portion
of their
rights under this Agreement to any wholly owned, direct or indirect,
subsidiary of Buyer.
|
| 25.2 |
Any
assignment under clause 25.1(a)
above will not detract from Seller’s obligations under this
Agreement.
|
| 25.3 |
Any
purported assignment under clause 25.1(b) will only be valid upon
Buyer
providing a guarantee for the obligations of the proposed assignee
in a
form reasonably acceptable to
Seller.
|
| 25.4 |
Except
as expressly provided in this
clause,
a
person who is not a party to this contract has no right under the
Contracts (Rights of Third Parties) Xxx 0000 (“the Act”) to enforce any
term of this contract but this does not affect any right or remedy
of a
third party which exists or is available apart from the
Act.
|
| 26. |
FAILURE
TO ACCEPT DELIVERY AND FAILURE TO
DELIVER
|
| 26.1 |
If
Buyer fails to accept delivery for any reason other than
Force Majeure, Seller shall be entitled to (i) sell to other buyers
the
Alumina which Buyer is or appears to be unable to accept, in which
event
Buyer shall be liable to Seller for any loss, including any loss
of
purchase price and any such transportation, insurance and freight
costs
actually incurred by Buyer, acting reasonably, in selling alumina
to third
parties in excess of such transportation, insurance and freight costs
Seller would have incurred in accordance with the terms of this Agreement;
or (ii) extend the term of this Agreement. If Seller elects to extend
the
term of this Agreement, the price for Alumina in effect for the extended
term shall be the same as the price in effect for Alumina scheduled
to be
delivered but which Buyer was unable to accept. Buyer shall give
Seller
written notice immediately upon anticipating an inability to accept
delivery. Buyer’s liability for failure to accept
shall be limited to that
portion
of
the quantity of Alumina which Buyer is unable to
accept.
|
| 26.2 |
If
Seller fails to deliver for any reason other than Force Majeure,
Buyer
shall be entitled to (i) purchase from other sellers the quantity
of
alumina which Seller is or appears to be unable to deliver, in which
event
Seller shall be liable to Buyer for the excess, if any, of the purchase
price, transportation, insurance and freight costs actually incurred
by
Buyer, acting reasonably, in procuring alumina from third parties
as a
substitute for the Alumina and the purchase price, transportation,
insurance and freight costs Buyer would have paid to obtain Alumina
in
accordance with the terms of this Agreement; or (ii) extend the term
of
this Agreement. If Buyer elects to extend the term of this Agreement,
the
price for Alumina in effect for the extended term shall the same
as the
price in effect for Alumina scheduled to be delivered but which Seller
was
unable to deliver. Seller shall give Buyer written notice immediately
upon
anticipating an inability to deliver. Seller’s liability for failure to
deliver shall be limited to that portion of the quantity of Alumina
which
Seller is unable to deliver.
|
| 27. |
DEFAULT
|
| 27.1 |
An
event of default (“Event
of Default”)
with respect to a party (the “Defaulting
Party”)
shall mean any of the following:
|
| (a) |
the
failure of the Defaulting Party to pay when due any
payment
required under
this Agreement within 10 Banking Days after written notice thereof;
|
| (b) |
except
to the extent covered by clauses 19
and 26,
the failure of the Defaulting Party to comply in all material respects
with its other material obligations under this Agreement and such
failure
remains uncured for 10 Banking Days after written notice thereof;
|
| (c) |
any
representation or warranty made by the Defaulting Party under this
Agreement shall prove to be untrue in
any material respect;
|
| (d) |
the
Defaulting Party (i)
makes an assignment or any general arrangement for the benefit of
creditors, (ii)
files a petition or otherwise commences, authorizes or acquiesces
in the
commencement of a proceeding or cause of action under any bankruptcy
or
similar law for the protection of creditors, or has such a petition
filed
against it and such petition is not withdrawn or dismissed for 30
days
after such filing, (iii)
otherwise becomes bankrupt or insolvent (however evidenced), (iv)
is unable to pay its debts as they fall due, makes a composition
with its
creditors, commits any act of bankruptcy, becomes subject to an order
for
winding up or dissolution or to the appointment of an administrator,
examiner, receiver, custodian, liquidator, trustee or other similar
official; or
|
| (e) |
The
occurrence of a material adverse change in the financial standing
or
creditworthiness of the Buyer when
compared to the Buyer's financial
standing as at the date of the contract which change, in the reasonable
opinion
of the Seller, affects Buyer's ability
to perform its financial obligations in respect of this
Agreement
(including any other transactions between the parties), and the Buyer
fails to provide or procure reasonable security in the form of, inter
alia, a guarantee, letter of credit or other credit support in a
form
acceptable to the Seller for the performance of its financial obligations
to the Seller in respect of this
Agreement
within three (3) Banking Days of the Seller's request therefor.
|
| 27.2 |
Upon
the occurrence and during the continuation of an Event of Default,
the
other party (the "Non-Defaulting
Party")
may in its sole discretion:
|
| (a) |
notify
the Defaulting Party of an early termination date (which shall be
no
earlier that the date of such notice) on which this Agreement and
the
transactions contemplated hereunder shall terminate (the "Early
Termination Date");
|
| (b) |
withhold
any payments due to the Defaulting Party until such Event of Default
is
cured; and/or
|
| (c) |
suspend
performance of its obligations under this Agreement until such Event
of
Default is cured. If a notice of an Early Termination Date is given
under
this Section, the Early Termination Date will occur on the designated
date
whether or not the relevant Event of Default is then
continuing.
|
| 27.3 |
Once
an Early
Termination Date is established, the Non-Defaulting Party shall in
good
faith calculate its Losses, resulting from the termination of the
transactions(s) contemplated hereunder (the “Terminated Transaction(s)”),
aggregate such Losses with respect to the Terminated Transaction
into a
single net amount, and then notify the Defaulting Party of the net
amount
owed or owing. The Non-Defaulting Party will calculate its Losses
as of
the Early Termination Date, or, if that is not reasonably practicable,
as
of the earliest date thereafter that is reasonably practicable. If
the
Non-Defaulting Party’s aggregate losses and costs
exceed its aggregate gains,
the Defaulting Party shall, within 10 Banking Days of its receipt
of such
notice pay the net amount to the Non-Defaulting Party, including
interest
at a rate of 1.5% per month from the Early Termination Date until
paid,
plus any other amounts due and owing under this Agreement to
the Non-Defaulting Party. If the Non-Defaulting Party’s aggregate gains
exceed its aggregate losses and costs, if any, resulting from such
early
termination, the Non-Defaulting Party shall, after giving effect
to any
set
off
rights, pay the net amount without interest to the Defaulting Party
on the
date 10 Banking Days after the Early Termination Date.
|
| 27.4 |
If
an Event of Default occurs and/or an Early Termination Date is
established, the Non-Defaulting Party may (at its election) set
off
any or all amounts which the Defaulting Party owes to the Non-Defaulting
Party under
this Agreement
against any or all amounts which the Non-Defaulting owes to the Defaulting
Party under
this Agreement.
Notwithstanding
any provision to the contrary contained in this Agreement, the
Non-Defaulting Party shall not be required to pay to the Defaulting
Party
any net amount due to an early termination until the Non-Defaulting
Party
receives confirmation satisfactory to it in its reasonable discretion
that
(i) all amounts due and payable as of the Early Termination Date
by the
Defaulting Party under all transactions, under this Agreement, or
otherwise with the Non-Defaulting Party have
been fully and finally paid, and (ii) all other obligations of any
kind
whatsoever of the Defaulting Party to make any payments to the
Non-Defaulting Party or any of its affiliates under this Agreement
or
otherwise which are due and payable as of the Early Termination Date
have
been fully and finally performed.
|
| 27.5 |
Each
party stipulates that the payment obligations set forth in this
section
for the damages incurred are a reasonable approximation of the anticipated
harm or loss and acknowledges the difficulty of estimation of actual
damages, and each party hereby waives the right to contest such payments
as unenforceable, a penalty or otherwise. Neither party shall be
entitled
to recover any additional damages as a consequence of such harm or
loss.
|
| 28. |
LIMITED
WARRANTY
|
Any
express or implied condition, warranty, term, guarantee or representation,
statutory or otherwise, not expressly stated in this Agreement is hereby
excluded.
| 29. |
INDIRECT
LOSSES
|
Neither
Seller nor Buyer shall be liable, whether in contract or in tort or otherwise,
for indirect, consequential or special damages or losses of whatsoever nature,
however caused
and
whether or not a party knew of the possibility of such damages.
| 30. |
SUSPENSION
OF QUOTATIONS
|
| 30.1 |
The
metal prices and currency quotations specified under this Agreement
are
the quotations in general use for the pricing of the Alumina.
|
| 30.2 |
If
any of these price quotations cease to exist or cease to be published
or
should no longer be internationally recognised as the basis for the
settlement of concentrates contracts
(a
"Market Disruption Event"),
then upon the request of either party, Buyer and Seller will promptly
use
the following methods to agree on a new pricing
basis:
|
| (a) |
Negotiated
Fallback:
which means that each party will, promptly upon becoming aware of
the
Market Disruption Event, negotiate in good faith to agree with the
other
on a relevant price (or a method for determining a relevant price),
and,
if the parties have not so agreed on or before the fifth Business
Day
following the date
of the Market Disruption Event, clause (b) below
shall apply.
|
| (b) |
Dealer
Fallback:
which means that
the parties shall expeditiously and jointly and in good faith agree
on
three independent leading dealers in the principal trading market
for the
relevant underlying commodity market from
among those dealers with the highest credit standing.
Such dealers shall be appointed to make a determination of the
reasonable
price payable for the shipments to be made under this
Agreement
taking into consideration the latest available quotation for the
relevant
commodity
and any other information that, in good faith, they deem relevant.
The
price
to be paid under this Agreement
shall be the arithmetic mean of the three prices
determined by
such dealers, in which case such calculation shall be binding and
conclusive absent manifest error. If the parties have not agreed
upon the
appointment of the dealers on or before the sixth Business Day following
the day on which this clause
becomes applicable, or if a determination of the price
cannot be obtained from at least three dealers, then
the dispute shall be referred to arbitration in accordance with clause
22.
|
| 31. |
INCOTERMS
|
Insofar
as not inconsistent herewith INCOTERMS 2000 (and any later amendments thereto)
shall apply to this Agreement.
| 32. |
CHANGE
OF EVENT
|
In
the
event of any actual or prospective change in the organisation, control or
management of Buyer, including without limitation, a change to the majority
shareholding or privatisation or equivalent process of Buyer, this Agreement
will not be changed or in any way modified and shall continue in full force
and
affect.
| 33. |
NOTICES
|
All
notices, requests and other communications hereunder shall be in writing and
shall be deemed to have been duly given or made when sent by first class mail,
postage paid, or via telex or telefax addressed to:
Century
Aluminum Company
0000
Xxxxxx Xxxx, Xxxxxxxx X, Xxxxx 000, Xxxxxxxx, XX 00000
Telefax
No :
(000)
000-0000
Telephone
No: (000) 000-0000
Attention:
General Counsel
Century
Aluminum Company
X.X.
Xxx
000, 0000 Xxxxx Xxxxx 000 X., Xxxxxxxxxx, XX 00000
Telefax
No :
(000)
000-0000
Telephone
No: (000) 000-0000
Attention:
Director of Purchasing
Glencore
AG (Please insert proper details)
| 34. |
LANGUAGE
|
This
Agreement is prepared in English and the English language shall be authoritative
and final.
| 35. |
ENTIRE
AGREEMENT
|
This
Agreement constitutes the entire agreement between the parties with respect
to
the subject-matter hereof and supersedes any previous agreements between the
parties relating to the subject-matter. Each party acknowledges and represents
that it has not relied on or been induced to enter into this Agreement by any
representation, warranty or undertaking other than those expressly set out
in
this Agreement. A party is not liable to the other party for a representation,
warranty or undertaking of whatsoever nature that is not expressly set out
in
this Agreement.
| 36. |
REPRESENTATIONS
AND WARRANTIES
|
Each
party represents and warrants to the other that:
| 36.1 |
Status:
it
is duly organized under the laws of the jurisdiction of its formation
and
each possesses the capacity to xxx and be sued in its own name and
has the
power to carry on its business and to own its property and other
assets;
|
| 36.2 |
Power
and authority:
it
has the power to execute, deliver and perform its obligations under
this
Agreement and any related agreements and to carry out the transactions
contemplated by those documents and all necessary corporate, shareholder
and other action has been or will be taken to authorise the execution,
delivery and performance of the
same;
|
| 36.3 |
Binding
obligations:
its obligations under this Agreement and any related agreements constitute
their legal, valid, binding and enforceable
obligations;
|
| 36.4 |
Contraventions:
the execution, delivery and performance by it of this Agreement does
not:
|
| (a) |
contravene
any applicable law or regulation or any order of any governmental
or other
official authority, body or agency or any judgment, order or decree
of any
court having jurisdiction over it;
|
| (b) |
conflict
with, or result in any breach of any of the terms of, or constitute
a
default under, any agreement or other instrument to which it is a
party or
any license
to
which it is subject or by which it or any of its property is bound;
or
|
| (c) |
contravene
or conflict with its constitutional
documents;
|
| 36.5 |
Insolvency:
neither it nor any of its
affiliates has taken any action nor have any steps been taken (including
the presentation of a petition or the filing or service of a notice)
or
legal procedures been started or threatened against it for winding-up,
dissolution or reorganisation, the enforcement of any encumbrance
over its
assets or for the appointment of a receiver, administrative receiver,
or
administrator, trustee, regulator, supervisor or similar officer
of it or
of any of its assets;
|
| 36.6 |
No
default:
Neither it nor any of it’s affiliates is (nor would be with any of the
giving of notice, the lapse of time, the determination of materiality,
or
the satisfaction of any other condition) in breach of or in default
under
any agreement to which it is a party or which is binding on it or
any of
its assets in a manner or to an extent which could reasonably be
expected
to have a material adverse effect;
and
|
| 36.7 |
Litigation:
no
action, litigation, arbitration or administrative proceeding has
been
commenced, or is pending or threatened, against it or any of it’s
affiliates which, if decided adversely, could reasonably be expected
to
have a material adverse effect and nor is there subsisting any unsatisfied
judgment or award given against it or any of it’s affiliates by any court,
arbitrator or other body.
|
| 37. |
ILLEGALITY/SEVERABILITY
|
If
any
provision of this Agreement is or becomes illegal, invalid or unenforceable
in
any jurisdiction, that shall not affect the legality, validity or enforceability
in that jurisdiction of any other provision of this Agreement; or the legality,
validity or enforceability in any other jurisdiction of that or any other
provision of this Agreement.
| 38. |
NO
WAIVER OF RIGHTS
|
A
failure
or delay in exercising any right, power or privilege in respect of this
Agreement will not be presumed to operate as a waiver, and a single or partial
exercise of any right, power or privilege will not be presumed to preclude
any
subsequent or further exercise, of that right, power or privilege or the
exercise of any other right, power or privilege.
IN
WITNESS WHEREOF
the
parties have executed this Agreement
as of
the respective dates specified below with effect from the Effective Date
specified on the first page of this Agreement.
Accepted:
| /s/ Xxxxxx X. Xxxxxxx | /s/ Xxxx Xxxxxxxxxxxx | ||
|
Century Aluminum of West Virginia, Inc |
Glencore AG |
||
| Place and Date: As of April 26, 2006. | Place and Date: April 26, 2006 |
*PORTIONS
OF THIS EXHIBIT (MARKED BY AN ASTERISK) HAVE BEEN OMITTED AND FILED SEPARATELY
WITH THE SECRETARY OF THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO THE
AN
APPLICATION REQUESTING CONFIDENTIAL TREATMENT UNDER RULE 24B-2 OF THE SECURITIES
EXCHANGE ACT OF 1934, AS AMENDED.
