EXHIBIT 10.6
INGOT SUPPLY AGREEMENT
This Agreement made on January 2004,
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BETWEEN: ALCAN TAIHAN ALUMINUM LIMITED (hereinafter "ATA"), a
company organized and existing under the laws of
Korea, having its principal place of business at 23rd
Floor, Yonsei Jaedan Severance Building, 84-11, 5-ga,
Namdaemun-ro, Jung-gu, Xxxxx, 000-000, Xxxxx
AND: ALCAN INC., (hereinafter "ALCAN"), a company
organized and existing under the laws of Canada,
having its principal place of business at 0000
Xxxxxxxxxx Xxxxxx Xxxx, Xxxxxxxx, Xxxxxx, Xxxxxx,
X0X 0X0.
The parties hereto agree as follows:
1. DEFINITIONS
Except where the context otherwise requires, the following words or expressions
shall have the meaning assigned to them below:
(a) "Ingot" means 99.7% minimum purity primary aluminium ingot.
(b) "Kitimat Smelter" is Alcan's smelter located in Kitimat, British
Columbia, Canada.
(c) "Laterriere Smelter" is Alcan's smelter located in Laterriere, Quebec,
Canada.
(d) "Sheet Ingot" means primary aluminium ingot for hot rolling of
specified shape, quality, metallurgical and elemental composition, as
mutually agreed, and per the Alloy Specification sheet as indicated
under Item #7 "Technical Specifications", sourced from the Kitimat
Smelter.
(e) "Additional Sheet Ingot" is defined at Section 3(c).
(f) "LME" means the London Metal Exchange.
(g) "mt" means metric tonne(s).
(h) Unless otherwise specifically agreed herein, trade terms shall be
interpreted in accordance with Incoterms 2000.
(i) Unless otherwise specified, all amounts are in United States dollars.
(j) Firm Annual Quantity is based on receipts into ATA inventory.
2. DURATION AND TERMINATION OF AGREEMENT
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(a) The term of this Agreement is *** years commencing on 1 January 2004
and continuing through 31 December *** (the "Initial Term"), unless
terminated by either party in accordance with Section 2(b). Six (6)
months prior to the end of the Initial Term, the parties may agree to
renew the term of the Agreement, in which case the parties shall agree
on the Firm Annual Quantity for the next year at least three (3) months
prior to the end of the Initial Term.
(b) If a party breaches this contract ("Breaching Party"), the other party
may give notice in writing to the Breaching Party requiring it to
rectify the breach within thirty (30) days of the date of the notice,
failing which, the other party may terminate this contract by notice in
writing to the Breaching Party.
During such 30-day period, the obligations of the parties under this
contract continue.
3. QUANTITIES
(a) ALCAN agrees to sell and deliver to ATA and ATA agrees to purchase and
take delivery from ALCAN, the following quantities of Sheet Ingot
("Firm Annual Quantity"):
***: ***mt (plus or minus 10%), ***kmt /m in Q1, ***kmt in April
***kmt /m rest of ***
***: ***mt (plus or minus 10%), evenly spread
These quantities shall be divided equally on a monthly basis, plus or
minus 20% in any given month, provided the Firm Annual Quantity is
respected.
(b) If ATA wishes to increase its purchase volume of Sheet Ingot
("Additional Sheet Ingot"), ALCAN shall have a right of first refusal
for the supply of such Additional Sheet Ingot to ATA. Such Additional
Sheet Ingot may be sourced from ALCAN'S Laterriere Smelter if ALCAN is
unable to source it from the Kitimat Smelter. Prior to accepting an
order for Additional Sheet Ingot, ALCAN will notify ATA of the origin
of the Additional Sheet Ingot. An additional cost over the costs
indicated in Section 5 hereof will be charged to ATA for such
additional Sheet Ingot supplied from Laterriere, to cover the costs of
transport from Laterriere to Kitimat. This additional cost will be
calculated at the time of order entry, as defined herein, using the
following formula:
$ *** x [exchange rate at time of order entry]
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This additional cost will only apply to Additional Sheet Ingot, and not
to regular orders based on volumes indicated in subparagraph (a) hereof
(c) If ALCAN wishes to increase its volume of Sheet Ingot produced at the
Kitimat Smelter, ATA shall have a right of first refusal for such
increased production from ALCAN.
(d) Prior to the fifth business day of the second month preceding any
shipment month, ATA shall confirm the tonnage of Sheet Ingot, plus or
minus 20%, to be purchased in such shipment month.
*** 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.
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(e) Prior to the fifth business day of the month preceding any shipment
month, ATA shall confirm the tonnage of Sheet Ingot, plus or minus 10%,
to be purchased in such shipment month.
(f) Prior to the last business day before the fifteenth (15th) day of the
month preceding any shipment month, ATA shall confirm the specific
alloys, sizes and exact tonnage of Sheet Ingot to be purchased in such
shipment month.
(g) If this Agreement is renewed past the Initial Term, both parties shall
determine the Firm Annual Quantity at least ninety (90) days prior to
the start of each year that the Agreement is renewed.
(h) The parties will use best efforts to minimize the number of alloy and
size combinations. The minimum quantity of alloy size combination shall
be 100 mt on a given order.
(i) In the event that ATA is unable to meet the Firm Annual Quantity and
ALCAN is unable to sell the quantity equal to the difference between
the minimum Firm Annual Quantity and the quantity purchased by ATA (the
"Shortfall Quantity") to another value-added customer, ATA shall pay to
ALCAN an amount corresponding to the Sheet Ingot premium specified in
Schedule A for the Shortfall Quantity.
4. PRODUCT MIX
(a) ATA shall order 90% of the Firm Annual Quantity as foil Sheet Ingot
(the "Minimum Requirement").
(b) In the event that ATA does not order the Minimum Requirement, ATA shall
purchase other 1000 series alloy products at the FQ Sheet Ingot Premium
as specified in Schedule A and/or other alloys increased by the
difference between 1000 series alloy products at the GP Sheet Ingot
Premium and the FQ Sheet Ingot Premium, up to the Minimum Requirement
of the minimum Firm Annual Quantity (90% of *** mt for 2004, or up to
*** mt).
5. PRICE
(a) The price to be paid by ATA for the Sheet Ingot supplied under this
Agreement shall be determined in the following manner, on a DEQ basis:
(i) The average calendar month LME cash settlement of the month of
shipment, or as determined in the manner stated in sub-clause
(b) hereof; and
(ii) C.I.F. Ingot premium, to be negotiated and agreed between
ALCAN and ATA on a quarterly basis in accordance with market
conditions in Japan; and
(iii) US$*** per mt for DEQ Ulsan port terms; and
(iv) Sheet Ingot premium, as specified in Schedule A; and
(v) Size surcharge, as specified in Schedule A; less
*** 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.
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(vi) Discount for unsawn Sheet Ingot, as specified in Schedule A.
(b) In the event that the LME ceases or suspends trading in aluminium,
ALCAN and ATA shall consult with each other with a view to agreeing on
a substitute pricing arrangement.
6. DELIVERY
The Sheet Ingot will be delivered to ATA DEQ Ulsan port once a month, unless
otherwise mutually agreed. Based on a DEQ delivery, title shall transfer from
ALCAN to ATA when the Sheet Ingot has been unloaded from the vessel on to the
dock at Ulsan port.
7. TECHNICAL SPECIFICATIONS
Technical specifications for the Sheet Ingot will be agreed separately on a per
alloy basis. Both parties shall maintain a signed copy of the specification for
each alloy.
8. PAYMENT
(a) ALCAN shall issue the invoice to ATA as per ATA'S written instructions.
(b) In all cases, the invoice date is the DEQ date. By agreement between
the parties, either:
(i) ATA shall provide Alcan with an irrevocable Letter of Credit
for payment at sight, allowing for telegraphic reimbursement
in favour of ALCAN, minimum fifteen (15) days prior to the
invoice date described below, with expiry date not less than
fifteen (15) days after that invoice date. The Letter of
Credit will not be issued within the month of shipment as the
LME CASH average price is not yet known and to avoid any risk
of using provisional pricing.
(II) ALCAN shall invoice ATA on the date of unloading at the Ulsan
port.
In either case, payment shall be made by ATA and received by ALCAN net
ten (10) days from invoice date, which is the DEQ date.
(c) Payment by either of the above-mentioned methods can be extended up to
ninety (90) days (from invoice date) at ATA's option with interest for
the additional eighty (80) days to be charged at LIBOR plus 0.75
percent. LIBOR will be the rate on the third Wednesday of the month of
scheduled shipment and will be the rate corresponding to the payment
extension requested. This option must be exercised in writing to ALCAN
prior to the fifteenth (15th) day of each month prior to the shipment
month and must be guaranteed by ATA to ALCAN in the following manner:
(i) by way of standby letter of credit in favour of ALCAN,
covering up to three (3) months of shipments, guaranteeing
payment in case of payment default by ATA; or
(ii) By payment with a letter of credit with a 90-day deferred
payment date, in favour of ALCAN.
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(iii) The letter of credit referred to in sub-clauses (i) and (ii)
hereof must issue from a tier one or tier two bank, as
indicated in Schedule B hereto.
Should alternative financing become available to ATA, which financing
is acceptable to both ALCAN and ATA, the parties will negotiate in good
faith terms of payment in accordance with this alternative financing.
9. TOOLING
The existing tooling available at Casting Centre 4 at Kitimat is:
500 x 1080mm
500 x 1030mm
500 x 1735mm
520 x 1530mm
560 x 1130mm
or sizes available from adjustable moulds: 560 x 1230 - 1410mm and 560
x 1480 - 1720mm, with the possibility of a third adjustable mould of
560 x 1000 - 1250mm becoming available in 2004.
The existing tooling at Laterriere are:
445 x 1422, 1562mm
457 x 1143, 1676, 1829mm
560 x 1230mm
600 x 1070, 1115, 1400, 1600, 1705mm
10. QUALITY AUDITS
To the mutual benefit of both Parties, ATA may from time to time audit the
quality systems at the Kitimat Smelter. The questions for each audit shall be
submitted by ATA to ALCAN at least 3 months prior to the beginning of the audit
as scheduled by ATA and confirmed by ALCAN.
11. SHORT-WEIGHT
If a short-weight is discovered at the port of discharge, ALCAN shall compensate
ATA the corresponding amount provided the claim is made against ALCAN in writing
within 30 days after discharge. ALCAN may request that a representative of ALCAN
confirm the short-weight claim.
12. WARRANTY
(a) Alcan warrants that (i) the Sheet Ingot will conform to the description
thereof set forth in this Agreement and, unless otherwise specified,
with the specifications and tolerances as shown in the appropriate
purchase order in force on the date of this Agreement; (ii) such
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Sheet Ingot will not be defective in materials or workmanship; and
(iii) the title to such Sheet Ingot will be clear and free from
encumbrances.
(b) ATA shall have no right to assert any claim against ALCAN that any
Sheet Ingot delivered hereunder are defective or not as described
herein unless Alcan is notified of the claim, and then only after Alcan
has inspected such material and accepted that there is a basis for the
claim. Should any such Sheet Ingot be found defective or not as so
described, ALCAN will, at ATA'S option, take back such materials and
credit ATA accordingly, or supply new materials. ALCAN shall not be
otherwise liable in connection therewith. In particular, Alcan will not
be liable for damages, consequential, incidental, indirect or
otherwise, resulting from the delivery of Sheet Ingot which are
defective, or not as so described, or from its failure to deliver
suitable materials or from the use made by ATA or others of the
materials delivered or from any other cause whatsoever.
Every right, exemption from liability and defense of whatever nature to
which ALCAN is entitled hereunder shall extend to protect every
employee or agent of ALCAN and for this purpose ALCAN shall be deemed
to be acting as agent or trustee on behalf of its employees and agents.
13. CONCESSIONS
In the event of the material not meeting contractual specifications, ALCAN may
request a "concession" from ATA in writing, and only ship this material after
the concession has been approved by ATA in writing.
14. FORCE MAJEURE
If by reason of force majeure, which shall mean for the purpose of this
Agreement any cause not reasonably within the control of the party concerned,
and in particular, without limiting the generality thereof, act of God, water
shortage, war, curtailment of energy or raw material supplies, lockout, strike
or other labour trouble, or in consequence of compliance with any direction or
request of any government or governmental authority:
(a) ATA cannot take delivery of Sheet Ingot hereunder, such amount of Sheet
Ingot which by reason of such occurrence ATA is unable to receive may
be cancelled at the option of either party; or
(b) Any of ALCAN's then existing sources of supply for the place at which
delivery hereunder is to be made are curtailed or cut off or are
inadequate to meet the usual needs of ALCAN's business, the obligations
of ALCAN during such period of curtailment or cessation or inadequate
supply shall be reduced to the extent necessary in the judgement of
ALCAN to apportion fairly among its customers, regardless of whether
any such customer is related to ALCAN or whether a contract is in
effect between ALCAN and any such customer, the Sheet Ingot then
available for delivery and such amount as may be received from any
other existing source of supply. ALCAN shall not be required to
purchase any Sheet Ingot to replace the supplies so curtailed or cut
off. Any tonnage not shipped when due for any cause hereinabove
mentioned may be cancelled at the option of either party.
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However, the party so prevented from carrying out its obligations shall promptly
take all reasonable actions to overcome such event, which is interfering with
the take or shipment of Sheet Ingot.
15. FAIRNESS
If for any reason beyond the control of the parties the basic premises on which
this Agreement was entered or the economic circumstances change in such a way
that the execution of this Agreement or any part thereof would cause undue
hardship to one or other or both of the parties, or unduly favour one to the
detriment of the other, the parties shall consult with one another to find a
mutually acceptable and equitable solution with respect thereto.
16. ARBITRATION
All disputes arising in connection with this Agreement shall be finally settled
under the Rules of Arbitration of the International Chamber of Commerce by one
or more arbitrators appointed in accordance with the said Rules. The place of
arbitration shall be the city of Vancouver, Canada.
17. LAW
This Agreement shall be subject to and interpreted in accordance with the Laws
of the Province of British Columbia, Canada.
18. WAIVER
The failure of either of the parties hereto to insist, in any one or more
instance, upon the performance of any of the terms or conditions hereof shall
not be construed as a waiver or relinquishment of the right to insist upon the
future performance of any such terms or conditions.
19. ASSIGNMENT
Neither party may assign this Agreement or any rights or obligations hereunder
without the prior written consent of the other party hereto, such consent not to
be unreasonably withheld.
20. NOTICES
All notices required or permitted to be given under this Agreement shall be in
writing and shall be deemed to have been properly given upon dispatch by
registered or certified air mail, postage prepaid, addressed to the party to
whom it was sent at the address of such party set forth below or at such other
address as the party shall subsequently designate to the other party by notice
given in accordance with this Clause:
To ATA: Alcan Taihan Aluminum Limited
23rd Floor, Yonsei Jaedan Severance Building
84-11, 5-ga, Namdaemun-ro, Jung-gu
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Xxxxx, 000-000, Xxxxx
Attention: Gieu Xxx Xxx.
President & Representative Director
Facsimile: 00-0-000-0000
To ALCAN: Alcan Inc.
0000 Xxxxxxxxxx Xxxxxx Xxxx
Xxxxxxxx, Xxxxxx
X0X 0X0 Xxxxxx
Attention: Xxxxxxx Xxxxx
Vice President Metal Management and
Trading, Alcan Primary Metal Group
Facsimile: (000) 000-0000
IN WITNESS WHEREOF the parties have caused this Agreement to be executed by
their respective officers thereunto duly authorized.
ALCAN INC. ALCAN TAIHAN ALUMINUM LIMITED
By: /s/ Xxxxxxx Xxxxx By: /s/ Xxxxxxx Xxxxxxxx
------------------------ --------------------------
Name: Xxxxxxx Xxxxx Name: Xxxxxxx Xxxxxxxx
Title: Vice President, Title: Director Metal Procurement
Metal Management & Sales, APMG Alcan Taihan Aluminium Limited
By: /s/ Gieu Xxx Xxx
--------------------------
Name: Gieu Xxx Xxx
Title: Executive Vice President
Alcan Taihan Aluminium Limited
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