EXHIBIT 10.22
FRAME CONTRACT: CMT-SIIL/2004 DATE : 01.07.04
Between
STERLITE INDUSTRIES (INDIA) LIMITED, MADURAI BYPASS ROAD, SIPCOT INDUSTRIAL
COMPLEX, TUTICORIN, TAMILNADU, INDIA hereinafter called Buyer, agrees to buy
copper concentrates at the following terms and conditions:
and
COPPER MINES OF TASMANIA PTY LTD, XXXXXXXXXX, XXXXXXXX. 0000, XXXXXXXXX
hereinafter called Seller, agrees to sell copper concentrates at the following
terms & condition.
1. DURATION :
The duration of the contract shall be for 5 years from 1st July 2004 to 30th
June 2009 or such earlier or later date as may be provided in this agreement.
2. QUANTITY :
Approx 100,000 - 140,000 WMT per contract year which represents the full
production from the mine.
3. QUALITY :
Mined sulphide ore flotation clean copper concentrates of Mt Lyell origin
assaying typically as enclosed in Annexure. The concentrate shall be free of
deleterious elements and shall be suitable for ocean transportation in bulk in
accordance with the International Maritime Organisation (IMO) Code. The moisture
content of the concentrate shall be not less than 4%.
MATERIAL REVIEW : The seller shall inform Buyer each year of the expected assay
of copper, gold, silver, iron, mercury, sulphur, arsenic, bismuth, antimony,
chlorine, lead, zinc, nickel, selenium, tellurium, silica, fluorine, alumina,
calcium oxide and magnatite for the concentrates to be delivered in the
following contract year. Seller also shall provide expected minerological and
granulometry expected during next contract year.
NON CONFORMING CONCENTRATES: In case of non conforming concentrates Seller and
Buyer shall mutually discuss to resolve the matter amicably and to agree upon an
appropriate remedy.
4. TERMS NEGOTIATIONS :
The terms shall be negotiated for every year. The negotiations shall take place
during mutually acceptable and convenient periods.
During these negotiations the following items will be agreed:
Payable copper and precious metals
Treatment charge of copper
Refining charge for copper, silver and gold
Quotational period for all payable metals.
If Buyer and Seller can not agree terms during these negotiations, then if both
parties agree, shipment may continue during first quarter of the following half
year with the intention of reaching an agreement of terms at a time to be
agreed, with the terms agreed to apply from the start of the period. If Buyer
and Seller do not agree on this procedure, then for the half year in question
there will be no deliveries. The negotiation for the following period will take
place according to the usual procedure.
5. SHIPMENT & SCHEDULING :
The concentrate shall be shipped in lots of approx. 10,000 WMT in every month
during the tenure of this contract.
POSTPONEMENT : Due to shut-down or reduced production at the smelter or due to
logistical problems, the Buyer shall have the option to postpone any shipment
prior to its nomination provided that it is possible for the seller or buyer to
re-deliver the cargo to an alternate customer. If it is not possible, then Buyer
will accept the cargo in accordance with the agreed schedule. Any postponement
shall not affect the total quantity to be shipped in that Contract year. The
quotational period shall be correspondingly postponed unless otherwise mutually
agreed.
SHIPPING CODE : The concentrates will be suitable for ocean transportation in
bulk in accordance with the International Maritime Organization (IMO) Code and
any of the regulations in force.
6. VESSEL CHARACTERISTICS :
Seller shall arrange for single deck bulk carriers or tween-deck vessels,
seaworthy in all respects, with clear holds and hatchways suitable for typical
grab discharge. Vessels shall not have shaft tunnels in the holds nor shall
concentrates be loaded in deep tanks, in twin-decks, in such vessels shall be
suitable for berthing at berths having the characteristics described in Article
9 and shall, unless otherwise agreed, be classed 100 A1 at Lloyds or equivalent
and shall be no more than nineteen years (19) years of age. Vessel's gear shall
be rated for minimum 20 T capacity. Vessel shall provide power at the rate of 50
Amps / 440 Volts per hook of the vessel crane for working the grab. The cargo
loaded in any single hold should not exceed 6000 WMT unless agreed at the time
of Vessel nomination.
Seller shall not charter or load concentrates onto vessels from any shipping
company as to which, because of its financial condition, there exists reasonable
grounds for insecurity
about the ability of such shipping company to carry out the normal execution of
its shipping obligations, or which might result in the loss of insurance
coverage.
7. PORT OF DISCHARGE & DELIVERY :
Tuticorin seaport shall be port of discharge. The delivery basis shall be DES FO
(Delivered Ex-Ship Free Out) Tuticorin.
8. SHIPMENT NOMINATION, CONFIRMATION AND NOTICES :
At the time of vessel nomination of each vessel, seller shall notify Buyer of:
i) the vessel nominated for transportation of such cargo,
ii) the expected dates, of arrival and departure of such vessel at and from
seller's Port of Loading.
iii) the expected tonnage to be lifted by each vessel nominated and
iv) the dimensions/draft of the vessel.
v) gear capacity, number of working hatches, number of hooks available and
other details of the vessel
vi) estimated time of arrival of the vessel at discharge port.
vii) Port rotation of the vessel.
Seller to obtain acceptance of the nomination of the vessel from the Buyer in
writing with no further delay. If nomination is forwarded prior to 1200 hours
Indian Standard Time, Buyer to confirm acceptance by opening of next Australian
Business day.
FURTHER SHIPMENT CONFIRMATION: Seller shall notify Buyer of tonnage of
concentrates loaded as per the Xxxx of Lading, the stowage plan, the name of the
vessel and the estimated time arrival at the Port of Discharge no later than
five (5) working days after departure of each vessel from the Port of Loading.
Seller shall also arrange for the master of the vessel to give Buyer suitable
notices of the estimated time of arrival at Tuticorin (the "ETA")
9. DISCHARGE TERMS :
DOCUMENT TO OBTAIN DELIVERY ORDER :
For getting delivery order Seller shall arrange either of the following.
(1) Send One original xxxx of lading directly to the L/C opening bank or any
bank designated by Buyer within 5 working days from the xxxx of lading
date.
(2) Send One original xxxx of lading directly to Buyer's Smelter address by
air-courier within 5 working days from the xxxx of lading date.
(3) Arrange for the delivery order by giving simple letter of indemnity
directly to the owners as the vessel charterer. The letter of indemnity
shall be as per owners P&I club format.
NOTICE OF READINESS (NOR) :
Notice of Readiness (NOR) shall be tendered to the Buyer or its nominated agent
at the discharging port during office hours when the vessel is ready in all
respects to discharge the cargo, whether in berth or not, whether in free
pratique or not, whether in customs clearance or not. Time taken for vessel to
obtain customs clearance and / or free pratique not to count as laytime.
For the purpose of this, office hours shall mean the hours from 0800 hrs to 1700
for the days Monday through Friday and from 0800 to 1300 on Saturday (Sundays
and Charter Party or other holidays excluded).
DISCHARGING BERTH :
The discharging berth shall be capable of discharging vessels with a maximum LOA
of 180 meters, and a maximum Draft of 10.70 meters. Seller shall ship
Concentrates to Buyer on vessels meeting the characteristics of Buyer's
available berths at Tuticorin and in accordance with Buyer's reasonable
regulations for berthing and discharge. Buyer shall designate one (1) safe
discharging berth at Tuticorin which is suitable for vessels to discharge always
afloat.
RATE OF DISCHARGE :
The Cargo is to be discharged at the average rate of 3000 WMT per Weather
Working Day of 24 running hours; Sunday, Holidays and bad weather periods
excluded unless used (If used half actual time used to count). Basis is 2
holds/2 hatches and discharge rate to be pro-rata on available holds/hatches. No
concurrent discharge with other cargo however, same to be permitted with
Receivers approval. Laytime only to count against Sellers when their cargo is
being discharged. Time from commencement of laytime to commencement of discharge
of any cargo in Tuticorin is to be prorated between all Charterers basis Xxxx of
Lading quantity. Sundays and Holidays would mean an effective day beginning at
1700 hours of the previous day till 0800 hours of the day following the Sunday
or Holiday(s). Once a vessel is on demurrage, she is always on demurrage.
LAYTIME :
Laytime for discharge shall commence at 0800 hours the next working day if NOR
is tendered prior to the closing of office hours if discharge has not commenced.
If discharge is commenced sooner, then half the time used is to count as
laytime. If after berthing, vessel is not ready in all respects to discharge,
actual time lost until vessel is ready in all respects to discharge is not to
count as laytime.
Shifting time from anchorage to the berth shall not count as laytime.
Similarly time lost in moving on or off a berth or from one berth to another
shall not count as laytime.
Each vessel shall open and close hatches and remove and replace beams at the
vessel's risk and expense, and the time used for such purpose shall not count as
laytime.
DEMURRAGE AND DESPATCH :
If each cargo is not discharged from the vessel within the allowed laytime,
demurrage shall be payable by Buyer to Seller calculated per running day of 24
hours (fractions pro rata) as per Charter Party agreement or at the rate of USD
7000 per day, whichever is lower.
Seller shall pay Buyer despatch money for saved at the port of discharge
calculated per running day of 24 hours (fractions pro rata) at half of the
demurrage rate.
Any payments in respect of Demurrage or Despatch Money owed to Seller or Buyer,
as the case may be shall be made promptly after presentation of calculations and
supporting documents including Time Sheet, Statement of Facts, copy of charter
party agreement.
The demurrage/ despatch costs along with other related costs such as diversion
costs, shall be settled on presentation of separate invoices along with the
necessary supporting documents. A copy of the Charter Party Agreement shall be
made available to the Buyer within fifteen(15) days from the date of xxxx of
lading.
Overtime : Any overtime payable for discharging outside normal working hours
shall be paid by the party ordering such overtime except that officer's and
crew's overtime shall always be for owner's account. If overtime is ordered by
the port authorities at the discharge port then such overtime costs to be
Owner's account.
CHARGES NOT TO BUYER'S ACCOUNT :
PORT CHARGES : Seller will hold Buyer free and harmless from all port charges,
harbour dues, pilotage, crew's expense, light dues, and all other charges and
dues customarily paid by a vessel at any Port of Discharge. Seller will ensure
that without cost of Buyer (I) each vessel provides all necessary onboard lights
for vessel for night discharging and (II) hatches are opened and closed and any
beams are removed and replaced at the vessel's risk as necessary for or in
connection with discharging, provided local regulations permit so.
STEVEDORES DAMAGES : Damages caused by stevedores nominated and/or appointed by
Buyer shall be settled directly between the stevedores and the vessel owners.
Buyers and Sellers shall have no responsibility for such damages. However, both
Buyer & Seller shall endeavour to resolve the issue with the Owners. All
stevedores damage affecting seaworthiness of the vessel to be repaired in port
before Vessel's sailing and time to count as laytime.
10. INSURANCE :
Seller shall effect maritime insurance with an internationally reputed insurance
company on the following conditions :
INSURED VALUE: The insured value shall be 110% of the DES FO value of the
concentrates as per the invoices for the provisional payment, subject to
adjustment to the final value, as determined in accordance with this Agreement.
INSURANCE COVERAGE : The insurance shall designate the Buyer or its Trustee(s)
as the primary loss payee(s). Such coverage shall be valid from the point of
loading at the Port of Loading until final destination at the receiving
smelter's warehouse and shall be effective under the terms of the Institute
Cargo Clause (A), average irrespective of percentage, with Revised Insolvency
Exclusion Clause, including the risk of all fire or heating even when caused by
inherent vice or spontaneous combustion and Institute War Clauses and Institute
Strikes, Riots and Civil Commotion Clauses in addition to specific cover on
short-shipment/ short-landing. The insurance policy shall not have any clause
related to shortage in excess of certain percentage and also shall cover for
contamination of the cargo.
CLAIMS : Claims on the supplier as per Clause 15 for total or partial loss and /
or damage / contamination shall be payable based on the value as per the invoice
for the provisional payment subject to later adjustment to the final invoice
value. Such claims shall be also include expenditure, if any, arising from such
loss and/ or damage / contamination. Any claim shall be payable in AU Dollars in
India.
SELLER'S ASSISTANCE : If any concentrates are lost or damaged ' contaminated,
the seller shall upon the request of Buyer, assist in the recovery of the
insurance from the Insurance Company.
11. PRICE OF THE MATERIAL & PAYABLE :
The price per dry metric ton of Copper Concentrates will be the sum of payments
less the deductions as stated below:
COPPER :
The price of copper shall be the LME Grade A Copper settlement quotations as
quoted in Metal Bulletin PLC averaged over the Quotational Period.
SILVER :
The price of silver shall be the London (LBMA) Silver spot (US cents equivalent)
quotations as published in Metal Bulletin PLC averaged over the Quotational
Period.
GOLD :
The price of gold shall be the mean of London A.M/P.M fixing quotations for gold
as quoted in Metal Bulletin PLC averaged over the Quotational Period.
PAYABLES :
COPPER :
Shall be determined during terms negotiations.
SILVER :
Shall be determined during terms negotiations.
GOLD :
Shall be determined during terms negotiation.
CONVERSION FROM USD TO AUD
The payment shall be made in Australian dollars and the conversion rate of USD
to AUD shall be mutually discussed and agreed during every shipment.
12. DEDUCTIONS :
(i) TREATMENT CHARGE :
Shall be determined during terms negotiations.
(II) REFINING CHARGE :
COPPER : Shall be determined during terms negotiation.
SILVER : Shall be determined during terms negotiation.
GOLD : Shall be determined during terms negotiation.
13. QUOTATIONAL PERIOD :
Shall be determined during terms negotiations.
14. PAYMENT :
Payment shall be effected in Australian Dollar under an irrevocable Letter of
Credit. At least 3 weeks prior to the estimated time of arrival of the vessel at
the load port, Seller shall submit to Buyer a proforma invoice that shall state
the estimated value of the shipment based on:
Expected dry metric tons to be shipped
Estimated metal assays of material to be shipped
The average of the daily quotations for copper, silver and gold for the
calendar week prior to the date of proforma invoice.
At least fifteen(15) days prior to the estimated time of arrival of the vessel
at the load port as advised by Seller to Buyer, Buyer shall establish and
deliver to seller an irrevocable Letter of Credit in an amount not less than
100% of the value of the proforma invoice submitted by Seller.
Said letter of credit shall be :
(a) Irrevocable
(b) Opened, on a First Class bank in India without confirmation, which if
required, shall be to seller's account.
(c) Payable at sight upon presentation of seller's drafts and required
documents as hereinafter set forth.
(d) Valid for such period as shall be necessary to effect provisional and final
payment. Should the presentation of any of the drafts or documents under
the terms of the contract be delayed due to the fault of the beneficiary
thereby necessitating the extension of the L/C beyond the stipulated period
of 6 months from the date of L/C whichever is later, then the L/C
revalidating cost shall be entirely to the beneficiary's account. All
additional bank charges, if any, on account of acceptance by the applicant
of discrepant documents submitted by the beneficiary, shall be to
beneficiary's account. In case of delays caused by umpire this clause shall
not apply.
L/C CHARGES :
L/C Opening Charges shall be to the Buyer's Account. L/C Advising Charges and
Confirmation Charges (if required) shall be to Seller's account. Amendment
Charges if any shall be to the account of the party whose fault it is that has
necessitated the amendment.
PROVISIONAL INVOICE :
A provisional payment of 100% provisional invoice value shall be made upon
presentation of the following documents :
(a) Seller's provisional invoice based on seller's weights and assays, and the
quotations of the last 10 working days prior to Xxxx of Lading date.
(b) Full set (or 2/3 as the case may be), of negotiable clean onboard shipping
or charter party bills of lading marked "Freight Prepaid" or "Freight
payable as per Charter Party" and consigned To Order.
(c) Seller's weight certificate showing dry weight in DMT, wet weight in WMT
and moisture content.
(d) Provisional assay certificate of Seller showing copper, silver and gold
content.
(e) Certificate of Origin
(f) Insurance policy or certificate
(g) Certificate of Quality (Moisture content) and Quantity issued by the Mine
at the port of loading.
(h) Certificate from vessel owners/agents regarding the age and classification
of the vessel.
(i) Fax copy of Notice of readiness (NOR) issued at receiving port.
Payment shall be made on or within NOR plus two days upon presentation of the
above documents. Final payment shall be made following provisional payment based
upon final dry weight delivered and recorded at the Buyer's smelter and assay
results based on the samples taken at the Buyer's smelter and metal quotations
for the entire quotational period.
Final payment shall be made within two days of the presentation of the final
invoice through the letter of credit, if Seller is to receive payment. In case
payment is to be remitted to Buyer, the same shall be made within 2 (two)
working days after final invoice details are known.
Letter of credit shall be operative and subject to the "Uniform Customs and
Practices for Documentary Credits (1993 Revision, ICC Publication No 500)"
Final payment shall be made upon presentation by the seller of the following
documents:
(a) Seller's final invoice in quadruplicate
(b) Seller's certificate of final weight showing dry weight and moisture
content
(c) Seller's certificate of final assay showing copper. Gold and silver
content.
(d) Buyers fax to seller confirming the final value and that any residual
balance under the letter of credit may be drawn by Seller.
In case the final payment is due to Seller and exceeds the remaining amount
available in the Letter of Credit Seller shall be allowed to draw the maximum
amount available in the Letter of Credit while said Letter of Credit is being
amended for the appropriate increase in amount. Once the Letter of Credit has
been amended, Seller shall again draw against this Letter of Credit to complete
final payment.
In case the final payment is due to Buyer, Seller shall reimburse Buyer
immediately to Buyer's designated bank account.
Buyer agrees to amend the Letter of Credit to increase the amount thereof or
extend the period of validity and to make other appropriate modifications if
necessary to provide for payment in full of the amounts which may become due in
respect of shipments of concentrates hereunder.
15. TOTAL AND PARTIAL LOSS / DAMAGE :
A) TOTAL LOSS :
In case of Total Loss, Buyer is not liable to make payment of any nature for the
cargo undelivered.
B) TOTAL DAMAGE :
In case of Total Damage wherein the entire cargo is deemed to be unsuitable for
use, determination of the same shall be done from the samples taken for moisture
determination and sampling in the presence of Buyer, Seller, Insurance Surveyor,
or their authorised representatives. Buyer is not liable to make payment of any
nature for the cargo so delivered. In case 100% of provisional invoice value has
already been drawn, the entire paid value shall be claimed by the Buyer, by
raising a Debit Note for the same. This shall be refunded by the Seller within 5
bank working days from the date of Buyer's debit note being faxed to Seller.
PARTIAL LOSS :
In case of Partial Loss, Buyer shall pay for the quantity actually received at
the Tuticorin Smelter, as per all the provisions contained herein. Payment shall
be made for 100% of the provisions invoice value after adjusting for the full
value of the quantity lost. The value of the quantity lost should be established
from the provisional invoice value by prorating.
In case 100% of provisional invoice value has already been drawn, the difference
between drawn value and provisional payable value shall be claimed by the Buyer,
by raising a Debit Note for the same. This shall be refunded by the Seller
within 5 bank working days from the date of Buyer's debit note being faxed to
Seller.
The final payment will be the difference between final invoice value (based on
actually received weight) and the provisional paid value, as described above.
PARTIAL DAMAGE :
In case of Partial Damage, wherein part of the cargo is deemed to be unsuitable
for use, determination of the same shall be done from samples taken for moisture
determination and sampling in the presence of Buyer, Seller, Insurance Surveyor,
or their authorised representatives. Buyer shall pay for the quantity actually
received at the smelter in usable condition as per the provisions contained
herein. Payment shall be made for 100% of the provisional invoice value after
adjusting for the full value of the quantity damaged. The value of the quantity
damaged should be established from the provisional invoice value by prorating.
In case 100% of provisional invoice value has already been drawn, the difference
between drawn value and provisional payable value shall be claimed by the Buyer,
by raising a Debit Note for the same. This shall be refunded by the Seller
within 5 bank working days from the date of Buyer's debit note being faxed to
Seller.
The final payment will be the difference between final invoice value (based on
actually received weight) and the provisional paid value, as described above.
16. WEIGHING, SAMPLING AND MOISTURE DETERMINATION :
Weighing, sampling, sample preparation and moisture determination of moisture
content of concentrates shall be conducted by Buyer or Independent approved
surveyor promptly after receipt of concentrates. All weighing, lotting,
sampling, sample preparation and determination of moisture content of
concentrates shall be done in accordance with International standard practice
procedures, which shall be mutually agreed upon by the parties. Seller at its
sole expense, shall have right to be present or be represented at the weighing,
sampling, sample preparation and moisture determination operations. Failure to
be present or to be represented at any weighing, sampling, sample preparation
and moisture determination operations shall be deemed to be a waiver of the
right in that particular instance only.
SAMPLE LOT : A sample lot of concentrates shall be approximately 500 WMT.
Weighing and sampling shall be done contemporaneously at the receiving Smelter.
SAMPLE SPLITS:
From each sample lot concentrates Buyer shall prepare a sample which shall be
divided into eight sealed sample splits for purpose of copper, silver and gold
assays. The sample distribution is as follows:
2 sets for Buyer
2 sets for Seller
2 sets for eventual umpire purposes, which shall be retained by Buyer
2 sets for reserve purposes, which shall be retained by Buyer and shall be used
if other samples are lost.
Weight determination for the purposes of final settlement shall be the receiving
smelter's received dry weight as established by the procedures explained above.
Buyer shall immediately upon determination of weight and moisture telex/telefax
the wet weight, dry weight and moisture contents to Seller.
Any difference of opinion regarding WSMD procedures shall be reviewed by mutual
agreement of Seller and Buyer.
17. ASSAYS :
From the samples taken Buyer and Seller shall each make their own assays results
which shall be exchanged in the customary or mutually agreed manner no later
than seventy five (75) days from the date of the weight certificate at the
smelter pursuant to the shipment. All assays (including any umpire assays) shall
show copper content to the nearest 1/100 of one percent, gold content to the
nearest 1/10 of a gram per dry metric ton, and silver content to the nearest one
gram per dry metric ton, respectively. All assays for precious metals shall be
undertaken using the fire assaying technique and shall be adjusted for
cupellation losses. All assays for precious metals will be based on a mutually
agreed practice & subject to review from time to time. The average of Buyer's
and Seller's assays shall govern settlement unless the following splitting
limits if applicable, are exceeded: Copper 0.25 percent, Silver 10 grams per DMT
and Gold 0.30 grams per DMT. Reference to an Umpire shall be mutual agreement
from an agreed list given below. The umpires in the list may be changed from
time to time by mutual agreement.
The arithmetic mean of the umpire assay and the nearest assay shall be final for
settlement.
The cost of the umpire assay shall be for the account of the party whose assay
is farthest from the umpire assay. If the umpire assay is the exact mean of the
Buyer's and Seller's assays the cost of the umpire shall be divided equally.
THE UMPIRE LIST
Xxxxxxx X. Xxxxxx International Ltd.
Xxxxxxxxx Grange,
Prescot Road,
St.Helens,
Merseyside WA10 3 BQ
England.
Or
Inspectorate Xxxxxxxx Ltd,
Xxxxx Xxxx,
Xxxxxx,
Xxxxx XX0 0XX.
England.
Or
Xxxx Xxxxxxx (Assayers) Ltd.,
Caddick Road,
Knowsley Insutrial Estatc,
Knowsley,
Merseyside X00 0XX
Xxxxxxx.
18. TAXES, DUTIES, CHARGES AND COMMISSIONS :
The seller shall pay all taxes duties and charges presently imposed and /or
which may be imposed in the future by the country of origin with respect to the
material under this agreement.
The Buyer shall pay all similar taxes, duties and charges (including, but not
limited to import duties) presently imposed and/ or which may be imposed in the
country of destination with respect to the material under this Agreement.
It is Buyer's responsibility to obtain and maintain any necessary import
licenses in a timely manner prior to opening the L/C.
19. TITILE AND RISK :
Title passes from Seller to Buyer upon payment of the provisional invoice value.
Risk passes from Seller to Buyer at the normal point of unloading of cargo at
Tuticorin, India.
20. FORCE MAJEURE
For the purpose of this clause, Force Majeure shall mean any cause whatsoever
beyond the control of a party hereto, including (but without limiting the
generality of the foregoing): lack of rail road facilities, act of god, perils
of the sea, adverse weather conditions, explosion, war (declared or undeclared),
military operations, blockade, revolution, disturbance, requests or orders or
action by any government or governmental or civil or military authority,
embargo, fire, accident, ice conditions, strikes, lockouts or
mob violence, unscheduled cessation of operation at producing works or receiving
smelter or load port or discharging port.
In the event of Force Majeure, delivery or acceptance of delivery under this
agreement shall be suspended, provided that the party invoking Force Majeure
("affected party")has given prompt written notice to the other party specifying
the event of Force Majeure and its presumed impact, and has submitted
appropriate evidence, for instance by the producing mine, a governmental or
other authority, if the other party has requested such evidence.
In respect of the Seller's obligation to deliver and Buyer's application to
receive material, should any of the foregoing circumstances occur, the time for
performance of the affected obligations shall be extended during the period of
such hindrance or delay upto a maximum of 60 days. If such period exceeds 60
days, the party not affected shall have the right to cancel the corresponding
tonnage. If such a period of Force Majeure exceeds 180 days, both parties shall
have the right to cancel the quantity so affected by the Force Majeure.
Except by Seller's written agreement, this entire Force Majeure clause shall not
apply for any material for which pricing has been established or vessel's space
has been accepted or quotational period is running.
21. SUCCESSION AND ASSIGNMENT:
This Agreement and all its provisions shall be binding upon and inure to the
benefit of the successors and assigns of the respective parties hereto.
Neither party may assign its rights and obligations under this Agreement without
the prior consent in writing of the other party, which consent shall not be
unreasonably withheld.
22. DEFAULT :
If either party claims that the other is in default with respect to any of the
provisions of this Agreement, the party so claiming shall give written notice to
the party alleged to be in default, designating such claimed default. Within 10
days after its receipt of such notice, the party alleged to be in default may
either
a) cure such default or
b) give the other party notice that the party alleged to be in default denies
that such default has occurred. In the event an default is denied by a
party, said party shall not be deemed in default hereof unless and until
said party is found by a final non-appealable arbitral or judicial
decision, as the case may be, to be in default and fails to cure it within
10 days after rendition of such final decision.
WAIVER OF DEFAULTS : The failure of either party hereto, to require in any one
or more instance strict performance of any of the provisions of this Agreement,
or a waiver by either party at any time of its rights with respect to a default
under this Agreement by the
other party hereto. Or an election not to take advantage of any of its rights
hereunder shall not be deemed a waiver of any such rights. No delay in asserting
or enforcing any right thereunder shall be deemed a waiver of or limitation on
such right provided, however, that this Article shall not operate as a waiver of
any applicable statute of limitations.
23. SCOPE OF DAMAGES :
No party to this agreement shall be liable to any other party to this Agreement
for special, incidental or consequential damages in any action or proceeding
relating to the performance or failure to perform this Agreement or any
provisions hereof, or relating to any act of failure to act in respect of this
Agreement.
24. ARBITRATION :
Any dispute or claim arising out of this Agreement shall be settled by
arbitration in London, United Kingdom, in accordance with the rules of
conciliation and arbitration of the London Metal Exchange in effect on the date
thereof. The arbitration shall be conducted in the English language by an
arbitral tribunal consisting of three arbitrators. Any decision or award shall
be final and binding on both Buyer and Seller. Arbitration Tribunal shall state
in its award the facts of the case and the reasons for its decision. Judgment
upon the award may be entered in any court having jurisdiction. The parties
shall comply in good faith with the decision.
All costs of arbitration, including without limitation, witness fees, legal fees
and expenses shall always be borne by the parties incurring such costs. The
costs of the arbitrators shall be borne equally by the parties unless awarded by
the decisions of the arbitrators.
25. CHIOCE OF LAW :
The laws of United Kingdom Shall govern the validity interpretation and
performance of this agreement and all rights and remedies of the parties.
26. DEFINITIONS :
The following terms shall have the following meanings when used in this
agreement :
A) Metric ton or mt means 2,204.62 pounds avoirdupois, natural state
B) Dry metric ton or dmt means 2,204.62 pounds avoirdupois, dry state
C) U.S Dollars and Cents means the lawful currency of the United States of
America
D) A Xxxx Ounce Equals 31.1035 grams
E) A Gram equals 1/1000 of a kilogram
F) A Calendar month refers to a named month in the Gregorian Calendar
G) Metal Bulletin refers to the publication known as "METAL BULLETIN" which is
published twice a week in London by Metal Bulletin PLC.
H) Date of Arrival means the date on which the vessel arrives at the port of
discharge and tenders Notice of Readiness as recorded in the statement of
facts.
I) Business Day means any day other then Saturday, Sunday or a bank or public
holiday.
J) Concentrates means sulphide ore flotation copper concentrates tendered by
the seller and consumed by the smelter.
K) Contract year means 12 full months beginning with the month of the first
day when this Agreement comes into force.
L) PPM means parts per million.
M) Scheduled Month of shipment means with reference to each cargo of
concentrates, the calendar month set forth in the shipping schedule given
by seller to Buyer quarterly
N) Expected Month of Arrival means with reference to each cargo of
concentrates, the calendar month of arrival of the vessel at discharge port
based on the estimated arrival at discharge port after the loading of the
vessel.
O) Actual Month of Arrival or Month of Arrival means with reference to each
cargo of concentrates, the calendar month of arrival of the vessel at
discharge port based on the Notice of readiness tendered and accepted at
discharge port.
P) LME Grade A Price means the cash settlement price for grade A copper
cathode as published in Metal Bulletin in US Dollars.
Q) Unit means 1 percent of the weight of Total net dry material.
R) Weather Working Day means a period of 24 consecutive hours during which
weather conditions permit the unloading of the concentrates from on board
vessel at the port of discharge.
S) DESFO : Means Delivered Ex Ship Free Out as per Incoterms 2000
T) AU Dollars means lawful currency of Australia
27. ENTIRE AGREEMENT :
This agreement along with the Addenda agreed to and signed from time to time by
both parties to the Agreement shall set forth the entire understanding of the
parties with respect to the subject matter hereof. Neither this Agreement taken
together with its Addenda nor any provision hereof can be waived, changed,
discharged or terminated except by an instrument in writing by the party against
which the enforcement of any waiver, change, discharge or termination is sought.
28. COUNTERPARTS:
This Agreement may be executed in any number of counterparts and shall become
effective when executed by Seller and by Buyer. Each of such counterparts shall
for all purposes be deemed to be an original, and all such counterparts shall
together constitute but one and the same Agreement.
29. HEADINGS :
The headings of the respective Articles, Sections and Subsections of this
Agreement are inserted for convenience of reference only and shall not be deemed
to be a part of this Agreement or considered in constructing this Agreement.
30. NOTICES :
Any notice permitted or required to be given under this Agreement shall be
validly given in writing and sent by telex, facsimile, prepaid registered first
class mail, cable or delivered by hand to the party to which the notice is
directed at the address set out in the opening paragraph of this Agreement, or,
in either case, such other address as may be notified by the relevant party to
the other. Any such notice shall be deemed to have been given 24 (twenty four)
hours of dispatch (if by telex, facsimile or cable), 3 (three) days after
posting (if by mail) or at the time of delivery (if by hand).
Notices shall be addressed as follows:
THE SELLER:
COPPER MINES OF TASMANIA
LOCKED XXX 0, XXXXXXXXXX,
XXXXXXXX-0000, XXXXXXXXX.
TELEPHONE : 0000-0-00000000
FAX : 0000-0-00000000
THE BUYER:
STERLITE INDUSTRIES (INDIA) LTD.,
SIPCOT INDUSTRIAL COMPLEX
MADURAI XXXXXX XXXX
XXXXXXXXX-000 000
XXXXXXXXX, XXXXX
TELEPHONE :0000 000 0000000 TO 0000000, 0000000
FAX :0000 000 0000000, 2340129, 2340036
/s/ R. Xxxxxxx Xxxxx /s/ S. S. Rathod
--------------------------- ----------------------------
STERLITE INDUSTRIES (I) LTD COPPER MINES OF TASMANIA P/L
STERLITE INDUSTRIES (INDIA) LTD.
SIPCOT Industrial Complex, Madurai Bypass Road,
Post Xxx Xx. 00, XXXXXXXXX - 000 000, Tamilnadu.
Tel : 00-000-0000000 - 594
Fax : 00-000-0000000, 2340129, 2340036
--------------------------------------------------------------------------------
ADDENDA XX. 0 XX XXXXXXXX XX. XXX-XXXX/0000 DATED 01 JULY 2005
DATE: 1 JULY 2005
STERLITE INDUSTRIES (INDIA) LIMITED, MADURAI BYPASS ROAD, SIPCOT INDUSTRIAL
COMPLEX, TUTICORIN, TAMILNADU, INDIA as Buyer and COPPER MINES OF TASMANIA PTY
LTD, XXXXXXXXXX, XXXXXXXX 0000, XXXXXXXXX, as Seller, hereby agree to make
following amendments in Contract No. CMT-SIIL/2005 dated 1 July 2005 for the
shipments made from 1 July 2005 onwards.
11. PRICE OF THE MATERIAL AND PAYABLE:
COPPER:
Payable Copper shall be 96.60% of full copper content subject to minimum
deduction of 1 unit.
SILVER:
CONTENT PAYABLE
Up to 30 g/ DMT - No Payment
If content more than 30 g/DMT - 90% of full silver content
GOLD:
CONTENT PAYABLE
Up to 1 g/ DMT - No Payment
For more than 1 g /DMT to 3 g/DMT - 90% of full gold content
For more than 3 g /DMT to 5 g/DMT - 92% of full gold content
For more than 5 g /DMT to 7 g/DMT - 94% of full gold content
For more than 7 g /DMT - 95% of full gold content
Addenda No. to Contract No. CMT-SIIL/2005 Sterlite Industries (India) Ltd.
12. DEDUCTIONS:
(i) Treatment Charge USD 85.35 per DMT of Concentrate
(ii) Refining Charge
Copper US Cents 8.535/lb of payable Copper
Silver US Cents 50/Tr.Oz. payable Silver
Gold USD 5/Tr.Oz. payable Gold
13. QUOTATIONAL PERIOD:
Quotational Period for all payable metals shall be the third month after month
of actual shipment as evidenced in the Xxxx of Lading.
All other terms and conditions shall remain as per the Frame Contract
CMT-SIIL/2005 dated 1 July 2005.
FOR BUYER FOR SELLER
STERLITE INDUSTRIES (INDIA) LIMITED COPPER MINES OF TASMANIA PTY LTD.
/s/ R. Xxxxxxx Xxxxx /s/ Xxxxxx Xxxxxx
----------------------------------- ---------------------------------------
Name : R. Xxxxxxx Xxxxx Name : Xxxxxx Xxxxxx
Title : Vice president (Marketing) Title : Finance Manager
WITNESS:
/s/ Xxxxxx Xxxxxxxxxx /s/ Xxxx Xxxxxxx
----------------------------------- ---------------------------------------
Name : Xxxxxx Xxxxxxxxxx Name : Xxxx Xxxxxxx
Title : GM -- Copper Concentrate Title : Financial Management Accountant
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