EXHIBIT 10.8
[LETTERHEAD]
Alcan Deutschland GmbH . Postf. 5149 . D-65726 Eschborn
Registered Mail
Alcan Aluminium Limited
c/o Xx. Xxxxxxx Xxxxx
0000 Xxxxxxxxxx Xxxxxx Xxxx
Xxxxxxxx, Xxxxxx
Xxxxxx X0X 0X0
27. Juni 2001
ALUMINA RAW MATERIALS CONTRACT NO. DEUISAALAAL9801
The above raw material supply contract was signed by Alcan Deutschland GmbH on
8 June 1998 and contains an option for extension until May ***, provided Alcan
Deutschland GmbH declares such option on or before 30 June ***.
We have now decided to extend our tolling agreement with Aluminium Essen GmbH
and, consequently, wish to declare our option for continuous supplies of
Aughinish alumina until including May ***.
Please countersign and return one original of this letter to this office.
ALCAN DEUTSCHLAND GMBH
/s/ Xxxxxx Xxxx
--------------------------
Xxxxxx Xxxx
ALCAN ALUMINIUM LIMITED
Montreal, /s/ Xxxxxxx Xxxxx
*** Certain information on this page has been omitted and filed separately with
the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
Alcan Aluminium Limited
0000 Xxxxxxxxxx Xxxxxx Xxxx, Xxxxxxxx, Xxxxxx, Xxxxxx X0X 0X0
Tel: (000) 000-0000
Fax: (000) 000-0000
Cable: Alcan
(ALCAN LOGO)
Alcan Aluminium Limitee
0000, xxx Xxxxxxxxxx Xxxxx, Xxxxxxxx, Xxxxxx, Xxxxxx X0X 0X0
Tel: (000) 000-0000
Telec.: (000) 000-0000
Cable: Alcan
RAW MATERIALS GROUP SALES CONTRACT
--------------------------------------------------------------------------------
DATE: 22 May 1998 CONTRACT N.:
DEUISAALAAL9801
PARTIES: Alcan Deutschland GmbH Alcan Aluminium Limited (Alcan)
Xxxxxx Xxxxxxx 0 0000 Xxxxxxxxxx Xxxxxx Xxxx
00000 Xxxxxxxx, Xxxxxxx Xxxxxxxx, Xxxxxx
Xxxxxx X0X 0X0
Attention: Xx. Xxxxx Xxxxxx Attention: Mr. Xxxxx Xxxx
SPECIAL TERMS:
SELLER: Alcan Aluminium Limited hereinafter referred to as AAL
BUYER: Alcan Deutschland GmbH hereinafter referred to as AD
DURATION: Effective June 1, 1998 through to and including May ***. AD
has the option to extend the agreement for an additional
*** years (Years June *** through to and including May ***)
which must be declared by Alcan no later that 30 June ***.
PRODUCT: Xxxxx metallurgical grade standard calcined alumina in
conformity with the respective refinery's standard grade
specifications, preferably Aughinish, Ireland. Other origins
following the approval of suitability at the Essen smelter.
QUANTITY Seller shall sell and Buyer shall purchase from Seller in
each contract year during the term of this Agreement, the
following quantities of alumina plus or minus five (5)
percent for shipping purposes: Year 1998 - *** METRIC TONS
and *** METRIC TONS each year, for years *** through to and
including ***. January to May *** - *** MT.
PRICE: Group Alumina Administration System (GAAS) price plus
freight and insurance
TERMS OF PAYMENT: No later than 30 days after bill of lading date via wire
transfer in U.S. funds.
TERMS OF SHIPMENT: CIF DDP Aluminium Essen's own berth in Essen, Germany in
river barges
SHIPPING SCHEDULE: First delivery of the alumina latest 1 June 1998 and after
that be spread evenly throughout the duration of the
agreement
*** Certain information on this page has been omitted and filed separately with
the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
CONTRACT No: DEUISAALAAL9801
Page No. 2
LOADING TERMS: DDP Aluminium Essen's own berth in Essen, Germany in river barges
OTHER: All duties paid.
Clause 3 of the attached Alumina Standard Conditions of Sale --
Not applicable
Alcan Deutschland GmbH remains the owner of the alumina delivered
until it takes delivery of respective volume of sheet
ingot/remelt ingot.
THE ATTACHED STANDARD TERMS AND CONDITIONS AND ANNEX A ARE PART OF THIS
CONTRACT.
Agreed and Accepted Agreed and Accepted
By: /s/ Xxxx Xxxxxx By: /s/ Xxxxxx Xxxxxxx
------------------------------ ------------------------------
Dated: 25/5/98 Dated: 08/06/98
------------------------------ ------------------------------
For: Alcan Aluminium Limited For: Alcan Deutschland GmbH
/s/ Xxxxx Xxxxxx Xxxxxx
8.6.98
ALUMINA STANDARD CONDITIONS OF SALE
1. ENTIRE AGREEMENT - Orders are accepted and material is delivered only
subject to these Standard Conditions of Sale. Unless expressly set forth
herein or in another document signed by an authorized representative of the
Seller, any qualifications of these Conditions or anything contrary to or
inconsistent with any of these Conditions must be deemed to be and will be
treated as inapplicable and of no effect. The Seller hereby objects to any
additional terms. No modifications of these Conditions shall be binding
upon the parties unless made in writing and signed by the Seller and the
Buyer. This Sales Order and these Standard Conditions of Sale constitute
the whole contract (hereinafter referred to as "Contract") between the
Seller and the Buyer for the sale and purchase of the material designated
on the front hereof, Buyer shall be subject to the Conditions of Seller's
designated Supplier (hereinafter referred to as "Supplier") which are
expressly provided in this Contract including the Annexes attached hereto.
2. PRICE - The Price of the material shall be the price noted on the front
hereof inclusive of penalty and bonus provisions.
3. SHIPMENT AND LOADING OF MATERIAL - The material shall be loaded according
to the attached loading regulations of Port of Loading in Annex C which
loading regulations may be amended from time to time by Seller. Seller
shall not be liable for any loss or damage resulting directly or indirectly
from any delay in shipment.
4. TITLE AND RISK - The material is to be shipped on ocean going vessels FOB
Port of loading or CIF Named Port of Destination herein referred to as
"Port of Loading" of Port of Destination as the case may be shown on the
front hereof. Such Terms of shipment shall be interpreted in accordance
with the rules set forth in the latest published edition of INCOTERMS
International Rules for the Interpretation of Trade Terms subject to the
following:
a) When the terms are FOB Port of Loading and the vessel has been
arranged on "Free in" terms all loading costs will be for the Buyer's
account.
b) When the terms are C.I.F. (a named Port of Destination), unless
otherwise agreed in writing, the price includes freight and marine
insurance cover on F.P.A. terms. When requested to do so by the Buyer,
the Seller will provide, at the Buyer's expense, war risk insurance or
other special cover, if procurable.
Unless otherwise provided in the Terms of Shipment shown on the front
hereof, title of the material shall pass from Seller to Buyer at the same
time as the risk of loss or damage to the material.
5. INSURANCE - Buyer shall make arrangements, at its own expense for insurance
coverage with a first class Insurer against loss, liability and damage with
respect to each shipment of material, immediately after the material clears
the vessel's rail at Port of Loading.
6. TERMS OF PAYMENT - Unless expressly set forth on the front hereof or
otherwise agreed in writing the terms of payment for all shipments made
hereunder will be thirty (30) days from date of invoice. Failure by Buyer
to pay within this delay shall have the effect of placing it in default.
Seller will be entitled to charge interest on any overdue amounts (as well
as on any judgment for the same) at the rate of 1.5% per month (18% per
annum), such interest to be calculated from the due date for payment on a
daily basis. Notwithstanding the foregoing, Seller shall be entitled to
refuse, modify or withdraw extension or credit to Buyer.
7. SPECIFICATIONS - The material shall conform to the Seller's specifications
attached in Annex A and which may be amended from time to time by Seller.
8. WEIGHT - The weight of each cargo shall be the Bill of Lading weight
determined by draft survey carried out by a qualified and competent marine
surveyor appointed by Seller using "Ship's Displacement" method at the time
of the vessel's loading. The draft survey report shall be conclusive
evidence of the weight of Alumina delivered. Buyer shall, at its own risk
and expense, have the right to have a representative present at such weight
determination.
Seller shall, at its own cost and expense, deliver to Buyer, the draft
survey report referred to above as soon as practicable.
9. SAMPLING OF MATERIALS AND QUALITY ANALYSIS - The sampling and quality
analysis procedure of the material shall be that which is in effect between
Seller and the Supplier and is available upon Buyer's request. Portions of
material for analysis shall be provided to Buyer.
10. WARRANTY - Seller warrants that the material will conform to the
description thereof set forth in this Contract. THIS WARRANTY IS IN
SUBSTITUTION FOR AND EXCLUDES ALL EXPRESSED OR IMPLIED CONDITIONS,
WARRANTIES OR LIABILITIES OF ANY KIND RELATING TO THE MATERIAL SOLD WHETHER
AS TO FITNESS FOR USE AND MERCHANTABILITY OR OTHERWISE AND WHETHER ARISING
UNDER STATUTE, IN CIVIL LIABILITY, BY IMPLICATION OF LAW OR OTHERWISE AND,
IN PARTICULAR, ALSO EXCLUDES ANY CONDITIONS, WARRANTY OR GUARANTEE TO THE
EFFECT THAT THE MATERIAL TO BE DELIVERED HEREUNDER IS SUITABLE FOR USE
UNDER ANY SPECIFIC CONDITIONS OR FOR ANY SPECIFIC PURPOSE ALTHOUGH SUCH
CONDITIONS.
11. Breach of WARRANTY - The Buyer shall not have any right to assert any claim
against the Seller that any material delivered hereunder is not as
described in Annex A hereof unless the Seller is notified of the claim
within thirty (30) days from the date of shipment, and then only after the
Seller has inspected such material and accepted that there is a basis for
the claim. Should any such material be found not as so described, the
Seller will, at its option, pay reasonable cost of the material delivered
to Seller, or supply new material, but, to the fullest extent permitted
under applicable law, Seller shall not be otherwise liable in connection
therewith in particular, Seller will not be liable for damages,
consequential, incidental, indirect or otherwise, resulting from the
delivery of material which is not as so described, or from the use made by
the Buyer or others of the material delivered or from any other cause
whatsoever.
Every right, exemption from liability and defense of whatever nature to
which the Seller is entitled hereunder shall extend to protect every
employee or agent of the Seller, and for this purpose the Seller shall be
deemed to be acting as agent or trustee on behalf of its employees and
agents.
12. CANCELLATION & DEFAULT - In the event that Buyer cancels all or part
of an order, Buyer shall on demand pay Seller as liquidated damages the
full purchase price for such material. In the event that the Buyer is in
default in respect of this or any other contract with the Seller, then the
Seller may give written or telefaxed notice to the Buyer of its intention
to suspend shipment under this Contract for a period of thirty (30) days;
if within that period, the Buyer has not rectified all such defaults then
the Seller may, by further notice to the Buyer, cancel this Contract or the
balance thereof immediately without prejudice to claims for payment in
respect of material already shipped or ready for shipment.
13. FORCE MAJEURE - A) The Seller shall not be liable for any delay in the
fulfilment of or failure to fulfil this Contract for any cause affecting
Alcan or its Supplier of the material for the present sale and not
reasonably within the control of Alcan or its Supplier (including without
limitation any act of God, shortage of water, energy or other raw materials
supplies, lock-out or strike or other labour trouble, whether or not the
demands of labour are within the ability of Alcan or its Supplier to meet:
war or insurrection or other civil disruption, compliance with any
allocation program in effect pursuant to Government direction or request or
instituted in cooperation with any Government authority). If by reason of
any such cause, the availability to Alcan of the kind of material covered
by this Contract is in the judgment of the Seller adversely affected,
Seller shall have the right but not the obligation to reduce or suspend to
the extent necessary in the Seller's judgment to allocate in an equitable
manner the supplies of such material (whether then available to Alcan or
received from any other source of supply) amongst Alcan's customers
(including the Buyer, new customers and the Seller's own divisions or its
subsidiaries or affiliates or other related companies, and whether or not a
contract is in effect between Alcan and any such customer). B) However
nothing shall require the Seller to increase its purchase from any of its
existing sources of supply of material of the kind covered by this Contract
- nor to seek alternative sources of supply for the same - in order to
replace supplies so affected. C) Any material covered by this Contract not
shipped when due for any cause hereinbefore mentioned may be cancelled
either by the Buyer upon payment of the Seller's cancellation charge (if
any is provided in the price noted on the front hereof) or by the Seller.
In this paragraph "Alcan" shall mean and include the Seller and any
division or subsidiary or affiliate or other related company of the Seller.
14. SHIPPING TOLERANCES - Except as otherwise provided on the front hereof,
each shipment shall be subject to a shipping quantity tolerance shown on
the front hereof.
15. TAXES - Unless otherwise stated herein (and if applicable), the Seller's
prices do not include sales, use, excise, export or similar taxes or
duties. Consequently, in addition to the prices quoted, Xxxxx shall pay to
the Seller the amount of all present or future sales, use, excise, export
or similar taxes or duties which the Seller is required to pay or to
collect in connection with this Order. In the event that the contracted
price is stated to be inclusive of any given tax or duty, Buyer shall pay
to the Seller any excess amount which the Seller is required to pay to
collect by virtue of a change in the rate or application of such tax or
duty.
16. WAIVERS, PARAGRAPH HEADINGS - A waiver by one party of any provision of
this Contract or of any default hereof by the other party shall not
constitute a waiver of any subsequent default, nor of any other provision.
Paragraph headings are for convenience of reference and do not form a part
of this Contract.
17. ASSIGNMENT - This Contract shall bind the respective successors and
assigns of the parties hereto, but neither party's rights or obligations
hereunder may be assigned without the other's prior written consent except
to his subsidiary or affiliated corporation, provided that such assignment
shall not relieve the assignor of its obligation hereunder. Any such
assignment without written consent shall be void.
18. APPLICABLE LAW - The Contract shall be governed by and construed in
accordance with the law of the Province of Quebec, Canada. The provisions
of the United Nations Convention on Contracts for the International State
of Goods adopted at Vienna, Austria on 11 April 1980 shall, unless
otherwise agreed by Seller in writing, be inapplicable.
