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Exhibit 10.34
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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.
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"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 OMG
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.
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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.
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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.
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.
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(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.
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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
Telecopy:x00 0 00 00 000
Brussels
Telephone: x00 0 00 00 000
Telecopy: x00 0 00 00 000
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Or if for
OMG Kokkola Chemicals Oy
Att: The President
X.X. Xxx 000, XXX-00000 Xxxxxxx
Xxxxxxx
Telephone: x000 0 0000 000
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 OMG KOKKOLA CHEMICALS OY
ANTTI AALTONEN
PRESIDENT
