Exhibit 10.18
COMMERCIAL CONTRACT No. CO/265/97 March 1997
Between:
1 LA GENERALE DES CARRIERES ET DES MINES a corporation duly incorporated
under the laws of Zaire.
And: OMG KOKKOLA CHEMICALS OY, a corporation duly incorporated under the laws of
Finland (hereafter called "Buyer") of the second part.
IT HAS BEEN AGREED AS FOLLOWS:
1 DEFINITION AND INTERPRETATION
1.1 DEFINITIONS
Wherever used in this agreement unless the context otherwise requires:
"Year" means calendar year commencing on 1 January and ending on 31
December that year.
"Concentrate Co-Cu or "Concentrate" "means the material defined in Clause 4
hereafter.
"Agreement" means this Agreement.
"Business Day" means a day which is not a Saturday, Sunday or a public
holiday in Finland or Zaire.
"Delivered lot" means a lot of concentrate containing approximately 500 wmt
from Kipushi or Luiswishi.
"Received lot" means the concentrate received by OMG in Kokkola containing
approximately 500 wmt.
"Payable metals" are cobalt, copper or all other metals which are
economically recoverable and agreed by both parties.
"Month" means calendar month.
"Quotational period" explained in Clause 8.2 hereunder.
2
"Project" defines Luiswishi project.
"Average Cobalt Content" is defined in Clause 4 hereafter.
"Average Copper Content" is defined in Clause 4 hereafter.
"Ton" and "metric ton" means 2204,62 pounds avoirdupois
"WMT" means wet metric ton.
"DMT" means dry metric ton.
"USD" shall mean lawful money of the United States of America
2 SUBJECT
Gecamines will deliver to OMG the monthly quantity of concentrate, defined
in article 6 hereinafter according to the specifications defined in
articles 3 and 4 hereafter, to 0MG Kokkola Chemicals in Finland.
3 MATERIAL TO BE DELIVERED
Cobalt and copper metal content in the concentrate are defined in article 4
hereinafter.
4 SPECIFICATIONS
Gecamines agrees to sell and deliver and OMG agrees to purchase Co-Cu
concentrate having the following characteristics assayed on a dry basis:
**
The parties can agree to modify the characteristics and possible conditions
and add other payable metals.
5 DURATION
This agreement is in force for two years commencing on the date of
starting the production and deliveries (Article 17). OMG has the option to
continue the contract until this material can be replaced by cobalt
smelter alloy.
6 QUANTITY
Gecamines shall deliver to OMG and OMG shall purchase from Gecamines
300-400 t cobalt content in concentrate in accordance with the
specifications in article 4,
7 DELIVERY
The delivery term to OMG in Kokkola, Finland (DDU Incoterms edition 1990).
Freight, charges, transportation and insurance to be charged from OMG. OMG
will choose the transportation agent as well as the way of packing (big
bags or bulk) after consulting Gecamines.
** Confidential treatment has been requested with respect to certain
information contained within this document. Confidential portions are
omitted and filed separately with the Securities and Exchange Commission
pursuant to Rule 24b-2 of the Securities and Exchange Act of 1934.
3
8 PRICE
The price of concentrate is based on metal content and fixed according
the following formulas
8.1 PRICE DETERMINATION
OMG shall pay to Gecamines for the Cobalt and Copper in the
concentrate. The price will be determined separately for each received
Lot DDU Kokkola.
8.1.1 COBALT PRICE (PCO)
Payable cobalt price for received lot is determined according the
following formula:
**
8.1.2 Copper Price (PCu)
Payable copper price for each received lot is determined according the
following formula.
**
8.1.3 PRICE OF OTHER RECOVERABLE METALS
**
8.2 QUOTATIONAL PERIOD
The applicable Quotational Period for cobalt, copper and other metals
is the month of arrival in Kokkola.
** Confidential treatment has been requested with respect to certain
information contained within this document. Confidential portions are
omitted and filed separately with the Securities and Exchange Commission
pursuant to Rule 24b-2 of the Securities and Exchange Act of 1934.
4
8.3 PAYMENT
After reception in Kokkola OMG will make the payment for received lots.
Weighing and sampling is done according to the procedure described in
article 9.2 for the quantities and that described in 8.1 and 8.2 for the
currency in use. In any case the final payment shall be made in 30 days
after QP. The title is passed from Gecamines to OMG at arrival in
Kokkola. An advance net payment will be negotiated before the first
shipments.
8.4 TAXES AND DUTIES
Any and all taxes, and duties in Zaire relating to this Agreement shall
be paid by Gecamines.
Any and all taxes, and duties paid outside Zaire relating to this
Agreement shall be paid by OMG.
8.5 ACCOUNT
OMG will credit "Project Luiswishi" by opening an account at a bank
approved by the parties of this project
9 WEIGHING, SAMPLING AND ASSAYING
9.1 WEIGHING, SAMPLING AND MOISTURE DETERMINATION IN KIPUSHI OR
LUISWISHI
To be used for transportation and insurance invoicing purposes, only:
(a) OMG and Gecamines shall confer and, before the first shipment,
shall adopt and record mutually acceptable methods of weighing, sampling
and analysing.
(b) The Co-Cu concentrate will be weighed, sampled and analysed in
Kipushi or Luiswishi at Gecamines costs. The shipment shall be divided
in lots of approximately 500 tons. Each lot shall form a separate and
complete delivery for all purposes under this Agreement
(c) Sampling and analysing will be made using mutually agreed methods.
Such weight and moisture content will be provisional for all purposes of
this agreement. After weighing, sampling and analysing Gecamines will
pass the results to OMG by telecopy.
9.2. WEIGHING, SAMPLING AND MOISTURE DETERMINATION AT DISCHARGING PORT:
(a) OMG and Gecamines shall mutually agree the methods of weighing,
sampling and analysing before the first shipment. These shall be
appropriate, based on internationally approved methods, defining exact
weights, samples and analyses.
(b) The Co-Cu concentrate will be weighed and sampled at the discharging
port at OMG's cost. Each received lot means a separate and complete
delivery under this agreement.
5
(c) Sampling and analyses are made according mutually agreed
analytical methods.
Weighing and moisture will be determined according this contract. In
case of arbitration demanded by either of the parties the procedure will
be according art. (9.3). A total of five sets of samples shall be drawn
from each lot and distributed as follows:
- one set of samples for the OMG
- one set of samples for Gecamines
- one set of samples for eventual umpire analysis kept by OMG
- one set of samples for eventual umpire analysis kept by Gecamines one
set of samples for reserve kept by OMG
During these operations Gecamines shall have the right to be represented
at its own expense.
After getting results OMG and Gecamines shall exchange the assays. If
the assays are not ready in 30 calendar days, the analysis that is at
disposal will be used for final invoicing. The invoice will be sent by
telecopy to OMG and the original by courier They shall be final and
binding for both parties of this agreement.
For each lot of 500 tonnes WMT Gecamines will calculate the amount of
cobalt, copper and other elements applicable for each lot preparing an
invoice in accordance with the shipment. The invoice shall be sent by
telecopy to OMG and the original by courier.
9.3 UMPIRE ASSAYING
This process is applicable for the samples taken at the port of arrival.
The analyses should be made independently by OMG and Gecamines. The
exchange of assays will be made by telecopy.
If the difference of assays for Co, Cu and Ni of the two parties is not
higher than 0.20 % the arithmetic mean of these two results will be
accepted final.
In the event of greater difference and if either of parties demand, an
umpire assay may be made on the samples reserved by two independent
laboratories, mutually approved.
The reference assayers cannot act as representative agent of OMG or
Gecamines at the weighing, sampling and moisture determination
operations and/or carry out, for any or both parties, the analysis for
the assay exchange.
Should the umpire assay fall between the results of the two parties or
coincide with either, the arithmetical mean of the umpire assay and the
assay of the party which is the nearer one to the umpire shall be taken
as the agreed assay.
6
Should the umpire assay be the exact mean. of the two parties then the
umpire result shall be final. The cost of the umpire assay shall be
borne equally by both parties when the umpire assay is the exact mean of
the exchanged results.
Should the umpire assay fall outside the exchanged results, the assay of
the party which is nearer the umpire shall be taken as agreed assay. The
cost of this assay shall be borne by the other party.
10 FORCE MAJEURE
In the event of any strike, act of God, war, lockout, flood, accident,
lack transport facilities or any other reason beyond the control of the
parties which prevent the parties to fulfill the obligations of the
agreement, the party involved should immediately inform the other party
in writing of such event and of the estimated duration of fulfilling the
obligations. If these circumstances or the Force Majeure situation
should persist more than 3 months the parties shall meet and consider
the cancelling this agreement.
11 FAIR CLAUSE
In case or events not foreseen by the parties, regardless of the
agreement, one of the parties may demand additional charge to be able to
fulfil its obligation in accordance with this agreement, this party has
to request in writing for a possible modification of this agreement. The
demand should, without delay, include the reason for the request,
explain the situation of the party and the economical consequences to
this agreement.
At default of notifying the party will loose the xxxxxx to present the
request in accordance with this article.
12 NOTICES
All notices, requests for information, complaints and other
communication which are required or may be given under this Agreement
shall be in writing delivered personally or sent by registered mail or
telecopy at the following addresses or to other such address as a party
may notify the other party in writing:
If for Gecamines
La Generale des Carrieres et des Mines
Monsieur le President Delegue General
X.X. 000
Xxxxxxxxxx
Xxxxxxxx of Zaire
Telephone: x00 0 00 00 000
Telceopy: + 00 0 00 00 000
Brussels
Telephone: x00 0 00 00 000
Telecopy: x00 0 00 00 000
7
Or if for
OMG Kokkola Chemicals Oy
Att: Xxx Xxxxxxxxx
X.X. Xxx 000, XXX-00000 Xxxxxxx
Xxxxxxx
Telephone: x00000000000
Telecopy: x000 0 0000 000
13 ASSIGNMENT OF THE AGREEMENT
This agreement as well as all rights and obligations for each party
arising thereof cannot be transferred, assigned, or pledged to a third
party without written permission of the other party before notice with
the exception where assigning company controls the majority. This
permission cannot be withheld unreasonably
14 AMENDMENTS
This present Agreement can only be modified by means of clauses duly
signed by both parties.
15 GOVERNING LAW AND JURISDICTION
Any dispute, occurred between the Parties and resulting from
misinterpretation or execution of the present agreement, shall be
preferably settled amicably. If it is not the case, it will be referred
to the Commercial Arbitration court in Paris which will make a ruling
based on French Law.
16 INTERPRETATION
A) The titles of various articles and paragraphs have no effect in the
interpretation of this agreement.
B) If any period specified in this agreement shall expire in non
business day, the expiring date is the following business day.
17 The agreement shall come into effect after the production has
started, which should be November, 1997.
In Lubumbashi 4 April, 1997
This agreement has been executed in two copies, one for each party.
FOR GECAMINES
YAWILI NYI ZONGIA UMBA KYAMITALA
DELEQUE GENERAL ADJOINT PRESIDENT DELEQUE GENERAL
FOR 0MG KOKKOLA CHEMICALS OY
ANTTI AALTONEN
PRESIDENT
AMENDMENT NO 4 TO COMMERCIAL AGREEMENT NO CO/265/97
Between
La GENERALE DES CARRIERES ET DES MINES, a state company organized and existing
under the law of the Democratic Republic of Congo, registered to the nouveau
registre de commerce de Lubumbashi au numero 453 and having its registered
office 000, Xxxxxxxxx Xxxxxxxxx, X.X. 000 Xxxxxxxxxx, Xxxxxxxxxx Xxxxxxxx of
Congo represented by Mr. NZENGA KONGOLO, General Director and Xx. XXXXXXXX
SEKIMONYO, Deputy General Director, hereinafter denoted as "GCM"
and
OMG Kokkola Chemicals Oy, a company organized and existing under the laws and
the Republic of Finland, represented by Xx. XXXXX XXXX, President (hereinafter
denoted as "OMG")
Preamble
Whereas GCM and OMG has signed in April 1997 the Commercial Agreement CO/265/97
related to deliveries of Co Cu Concentrate.
Whereas GCM and OMG has signed in March 1998 the amendment no. 1 to the
Commercial Agreement related to deliveries of Co Cu Concentrate.
Whereas GCM and OMG has signed the amendment no. 2 to the Commercial Agreement
about the revision of certain terms of the aforesaid agreement entered into
force on the 1st January 2000.
Whereas GCM and OMG has signed on the 16th of June 2001 the amendment no. 3 to
the Commercial Agreement related to duration of the aforesaid agreement.
Whereas the development of the market price of Cobalt has prejudiced both OMG
and the Lubumbashi project, and for this reason certain negotiations have been
held between the parties to find solutions which satisfy both parties and permit
the parties to continue with their cooperation.
NOW THEREFORE IT HAS BEEN AGREED AS FOLLOWS:
ARTICLE 1: DELIVERIES
Article 1 of amendment no. 2 modifying article 4 of the Commercial Contract has
been modified as follows:
GCM shall sell and deliver, and OMG shall buy, Co Cu Concentrate complying
having the following indicative characteristics (assayed on a dry basis):
**
** Portions of this exhibit have been omitted and filed separately with the
Securities and Exchange Commission in reliance on the Company's request for
confidential treatment pursuant to Rule 24b-2 of the Securities and Exchange Act
of 1934.
The cobalt contents shall be evaluated ** and the payable value shall be
determined as follow:
**
ARTICLE 2: DURATION
Article 5 of the commercial agreement as modified by article 4 of the Amendment
no. 2 and the article 1 of the Amendment no. 3 shall read as follows "The
parties agree to extend the commercial agreement up to **."
ARTICLE 3: QUANTITY
Article 6 of the commercial agreement is modified as follows:
GCM shall deliver on an average monthly basis ** tons Cobalt contained and OMG
undertakes to buy the following minimum annual quantities of Cobalt contained in
the concentrate according to the specifications as per article 1 here above:
**
OMG undertakes to increase these minimum purchase amounts to the extent the
balance of the market permits it to do so.
ARTICLE 4:
As far as any additional concentrates (exceeding the minimum quantities defined
in art 3 above) are concerned, **
ARTICLE 5:
The other clause of the Commercial agreement and its amendments none concerned
by the present amendment will remain applicable.
** Portions of this exhibit have been omitted and filed separately with the
Securities and Exchange Commission in reliance on the Company's request for
confidential treatment pursuant to Rule 24b-2 of the Securities and Exchange Act
of 1934.
ARTICLE 6:
In witness whereof the Parties have signed this amendment in drafted in the
French Language and translated into English, the French version being binding,
in three original copies, one for OMG, two for GCML, by their duly authorized
representatives.
For GECAMINES
ASSUMANI SEKIMONYO NZENGA KONGOLO
Deputy General Director General Director
For OMG Kokkola Chemicals Oy
JORAN SOPO
President of Kokkola Chemicals Oy
Signed August 27, 2003
** Portions of this exhibit have been omitted and filed separately with the
Securities and Exchange Commission in reliance on the Company's request for
confidential treatment pursuant to Rule 24b-2 of the Securities and Exchange Act
of 1934.
AMENDMENT NO. 5 TO COMMERCIAL AGREEMENT NO CO/265/97
BETWEEN
La GENERALE DES CARRIERES ET DES MINES, a state company organized and existing
under the law of the Democratic Republic of Congo, registered to the nouveau
registre de commerce du Lubumbashi au numero 453 and having its registered
office 000, Xxxxxxxxx Xxxxxxxxx, X.X. 000 Xxxxxxxxxx, Xxxxxxxxxx Xxxxxxxx of
Congo represented by Mr. NZENGA KONGOLO, General Director and Xx. XXXXXXXX
SEKIMONYO, Deputy General Director hereinafter denoted as "GCM"
AND
OMG Kokkola Chemicals Oy, a company organized and existing under the laws of the
Republic of Finland, represented by Xx. XXXXX XXXX, President; hereinafter
denoted as "OMG"
Whereas GCM and OMG has signed in April 1997 the Commercial Agreement CO/265/97
related to deliveries of Co Cu Concentrate.
Whereas GCM and OMG has signed in March 1998 amendment no. 1 to the aforesaid
Commercial Agreement;
Whereas GCM and OMG has signed an amendment no. 2 to the aforesaid Commercial
Agreement, which amendment was entered into force on the 1st January 2000;
Whereas GCM and OMG has signed in June 2001 amendment no. 3 to the aforesaid
Commercial Agreement;
Whereas GCM and OMG has signed in July 2003 an amendment no. 4 to the aforesaid
Commercial Agreement;
Whereas GCM and OMG has agreed to modify the terms of the Commercial Agreement
related to the deliveries ** (as defined in this amendment) for the delivery of
** (as defined in this amendment) will be determined on the basis of **.
NOW THEREFORE THE PARTIES HAVE AGREED AS FOLLOWS:
ARTICLE 1
The definitions set out in Article 1 of the Commercial Agreement are amended as
follows:
** the quantity of Co-Cu Concentrate that Seller plans to deliver to Buyer each
month as detailed in Article 2 of this amendment. The specific quantity listed
for each ** will be priced ** listed for that Price Unit in Article 2, even if
the actual delivery does not meet the planned delivery schedule in whole or in
part.
**
** Portions of this exhibit have been omitted and filed separately with the
Securities and Exchange Commission in reliance on the Company's request for
confidential treatment pursuant to Rule 24b-2 of the Securities and Exchange Act
of 1934.
ARTICLE 2
Article 6 of the Commercial Agreement, modified by article 3 of the amendment
no. 4 of the Commercial Agreement is amended as follows:
Quantity ** Production Planned Delivery **
(tons of Co cont'd) Month Month
**
The total deliveries ** as described above will total to a minimum of ** tons of
Cobalt contained in Co Cu Concentrate. The material will be purchased in **
(corresponding to planned monthly deliveries) as defined above.
The Buyer may elect to increase (but never to decrease) the quantity ** up to
the maximum of ** tons by notifying the Seller at the latest on the 5th working
day of the month prior to the concerned production month.
The Buyer is aware that additional quantity should be limited because of the
capacity of production and the sold quantities to another Customer.
ARTICLE 3
It is understood by the Parties that while best efforts will be made to respect
the planned delivery months for each **, the quantity, production and shipping
issues may cause slight changes in the actual time of deliveries.
The Buyer will prepare a monthly summary of the quantities received against each
Planned Delivery and will provide this summary report to the Seller before the
10th of each subsequent month.
ARTICLE 4
The article 8.3 of the Commercial Agreement is amended as follows:
The Buyer will pay the Seller for the quantity of Co-Cu Concentrate delivered to
the Buyer as follows:
- For any quantity delivered according to planned delivery (as set out in
article 2 above) or earlier, the Buyer will credit the bank account of the
Seller no later than **.
- For any quantity delivered later than the planned delivery, the Buyer will
credit the bank account of the Seller no later than ** .
ARTICLE 5:
The other clause of the Commercial agreement and its amendments not concerned by
the present amendment will remain applicable.
** Portions of this exhibit have been omitted and filed separately with the
Securities and Exchange Commission in reliance on the Company's request for
confidential treatment pursuant to Rule 24b-2 of the Securities and Exchange Act
of 1934.
ARTICLE 6:
In witness whereof the Parties have signed this amendment in drafted as the
French Language and translated into English, the French version being binding),
in three original copies, one for OMG, two for GCM, by their duly authorized
representatives.
For GECAMINES
ASSUMANI SEKIMONYO NZENGA KONGOLO
Deputy General Director General Director
For OMG Kokkola Chemicals oy
JORAN SOPO
President of Kokkola Chemicals Oy
Signed August 27, 2003
** Portions of this exhibit have been omitted and filed separately with the
Securities and Exchange Commission in reliance on the Company's request for
confidential treatment pursuant to Rule 24b-2 of the Securities and Exchange Act
of 1934.
