Exhibit 10.10
DATE: OCTOBER 16,1996
CONTRACT FOR THE SALE AND PURCHASE OF ANTHRACITE COAL
BETWEEN
SSM COAL B.V., ROTTERDAM
(THE SELLER)
AND
NAKORNTHAI STRIP MILL PUBLIC COMPANY LIMITED
(THE BUYER)
WHEREAS both the Seller agrees to sell and deliver and the Buyer agrees to
purchase and take delivery of the quantity and type of Vietnamese Anthracite
Coal Grade No. 7 and Grade No. 8C as set forth in this Contract in accordance
with the terms and conditions of this Contract as follows:
1. DEFINITIONS
1.1 In this Contract the following words and phrases shall have the following
meanings ascribed to them:
"ASTM Standards" means the American Society for Testing and Materials
standard procedures for mineral analysis;
"CIF" means Cost, Insurance and Freight;
"Coal", "Anthracite Coal", "Grade No. 7", "Grade No. 8C", or "goods" means
Vietnamese Anthracite Coal with the specifications as mentioned in article 4;
"Commencement Date" means the start of the first Contract Year;
"Contract Year" means the period of 12 months starting on the Commencement
Date and each subsequent 12 months' period;
"NOR" mean Notice of Readiness to discharge vessel;
"WIBON" means Whether in Berth or Not;
"WECCON" means Whether Customs Cleared or Not;
"WIFPON" means Whether in Free Pratique or Not;
"WIPON" means Whether in Port or Not;
"Demurrage" means the amount payable by Buyer to Seller for all time lost
during discharge of the vessel at the discharge port. This amount will be
calculated based on the Statement of Facts at discharge port and the demurrage
rate mentioned in the governing Charter Party;
"Despatch" means the amount payable by Seller to Buyer for all time saved
during discharge of the vessel at the discharge port. This amount will be
calculated based on the Statement of Facts at discharge port and the despatch
rate mentioned in the governing Charter Party;
"Dollars", "Cents", or "$" means the lawful currency of the United States
of America. A fraction of a cent in any calculation shall be rounded up to a
cent if such fraction is one-half of a cent or more, and shall be rounded down
otherwise;
"Free Out" means that the vessel will be discharged by or on behalf of the
Buyer free of cost and responsibility to Seller, vessel owner or charterer;
"Holiday" means one or more of the following time periods, unless used for
discharging a vessel. Since the dates will vary subject to the lunar calendar,
Buyer will provide to Seller before December 1 of each year the Holiday dates
that will apply in the succeeding calendar year.
- New Years Day (January 1) until 18.00h
- Makha Bucha Day (March 3)
- Chakri Day (April 6)
- Songkran Day (April 13)
- National Labour Day (May 1)
- Coronation Day (May 6)
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- Xxxxxxx Xxxxx Day (May 31)
- Khao Pansa Day (July 30)
- H.M. the Queen's Birthday (August 12)
- Chulalongkom Day (October 23)
- H.M. the King's Birthday (December 5)
- Constitution Day (December 10)
- New Years Eve (December 31) as from 18.00h
"ISO Standards" means the International Standards Organization procedures
for mineral analysis;
"Laytime" means the time allowed which is used for discharging, expressed
as a number of days, fractions pro rata;
"Price" means the price per metric tonne of Coal CIF Free Out, Takeaway
basis as mentioned in or agreed on the basis of article 5;
"Quantity" means a number of Metric Tonnes of 1,000 kilograms; all
quantities mentioned in this Contract shall be plus or minus 10 per cent in
Sellers option;
"Statement of Facts" means a document signed by the Master of the vessel,
by the agents of the vessel and by cargointerested party/parties, stating the
sequence of events, with relevant time periods, during vessel's presence at the
discharge port.
"Takeaway Basis" means that the facilities in the discharge port must be
sufficient to allow the vessel to discharge at the rate guaranteed by the Buyer
without delay.
2. CONTRACT PERIOD AND SHIPPING PERIOD
2.1 The Contract period shall start at the date first written above and continue
in full force and effect until the end of the 10th consecutive Contract Year
after the Commencement Date.
2.2 The Commencement Date shall be April 1, 1997.
2.3 The Shipping Period shall be from May 1, 1997 through April 30, 2007.
Quantity delivered shall be made rateably during the Shipping Period.
3. QUANTITY
Firm Optional
Quantity Quantity
(+/- 10%) (+/- 10%)
--------- ---------
3.1 First Contract Year: 81,000 MT 9,000 MT
Second Contract Year: 180,000 MT 20,000 MT
Third Contract Year: 205,000 MT 20,000 MT
Fourth Contract Year 285,000 MT 30,000 MT
Fifth Contract Year: 285,000 MT 40,000 MT
Sixth Contract Year: 405,000 MT 45,000 MT
Seventh Contract Year: 405,000 MT 45,000 MT
Eighth Contract Year: 405,000 MT 45,000 MT
Ninth Contract Year: 405,000 MT 45,000 MT
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Tenth Contract Year: 405,000 MT 45,000 MT
3.2 The optional quantity of Grade Xx. 0 xxx/xx Xxxxx Xx. 0X can be declared by
the Buyer no later than 1 October of each Contract Year for shipments during
that Contract Year.
3.3 The combined total quantity of Grade No. 7 and Grade No. 8C in any Contract
Year shall not exceed the sum of the firm and the optional quantity mentioned in
article 3.1 for that year.
3.4 A quantity will be considered to be delivered in the Contract Year in which
the Xxxx of Lading date falls.
3.5 The provisional shipment schedule in each Contract Year shall be agreed to
no later than 30 days prior to the commencement of the Shipping Period.
3.6 Ultimately 30 days before each 3 month period starting from Commencement
Date, Buyer and Seller will agree on the intended shipment schedule for that 3
month period.
4. QUALITY
4.1 The Coal will have the following typical specifications, determined in
accordance with current ASTM or ISO Standards as agreed to by both parties:
TYPICAL SPECIFICATIONS OF ANTHRACITE COAL
-----------------------------------------
Grade Grade
No. 7 No. 8C
On As Received Basis:
Total Moisture 10.00% Max 10.00% Max
On Dry Basis:
Ash 10.00% Max 15.00% Max
Volatile matter 8.00% Max 8.00% Max
Sulphur 0.60% Max 0.60% Max
Fixed Carbon 82.00% Min 77.00% Min
Approximate Gross 7600kcal/kg 7200kcal/kg
Calorific Value
On Square Hole Sieve Basis:
Size Ox15 mm Oxl5 mm
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5. PRICE AND DELIVERY TERMS
5.1 The Price shall be expressed in US Dollars per Metric Tonne CIF Sriracha
Pier and/or Kaosichang anchorage and/or Laem Chabang Port, Thailand, Free Out,
Takeaway Basis. A separate Price shall be determined for Grade Xx. 0 xxx Xxxxx
Xx. 0X.
5.2 The Price for deliveries in each Contract Year and the quantity of each
Grade required in that Contract Year shall be determined as follows: not less
than 90 days prior to the commencement of each Contract Year, Buyer and Seller
shall meet to negotiate the Price and the quantity of each Grade during said
Contract Year. If Buyer and Seller fail to agree upon a Price and the quantity
of each Grade by 30 days prior to the commencement of the Contract Year, they
may extend negotiations for such period of time as may be mutually agreed upon
("Extension Period").
5.3 If the parties are unable to agree by the end of an Extension Period, then
this Contract will automatically be suspended during the Contract Year for which
no agreement could be reached. In such case, parties will determine in mutual
agreement whether or not the quantity of the said Contract Year will or will not
be made up at the end of the Contract Period.
5.4 If the parties are unable to agree on the Price for 3 consecutive Contract
Years, either party is entitled to terminate the Contract.
5.5 Until such time as the Price for each Contract Year has been determined,
deliveries within an Extension Period will be at the Price in effect during the
immediately preceding Contract Year.
6. QUALITY ADJUSTMENTS
All on basis of loadport analysis.
6.1 Moisture:
In case the moisture content for either Grade No. 7 or Grade No. 8C is greater
than 10.00 per cent, a penalty will apply of 1 per cent of the Price for every 1
per cent over 10.00 per cent, fractions pro rata.
6.2 Ash:
For Grade No. 7, in case the ash content is greater than 10.00 per cent, a
penalty will apply of 1 per cent of the Price for every 1 per cent over 10.00
per cent, fractions pro rata. The Buyer will have the right to reject the cargo
in case the ash is over 15.00 per cent.
For Grade No. 8C, in case the ash content is greater than 15.00 per cent, a
penalty will apply of 1 per cent of the Price for every 1 per cent over 15.00
per cent, fractions pro rata. The Buyer will have the right to reject the cargo
in case the ash is over 20.00 per cent.
7. QUALITY AND QUANTITY DETERMINATION
7.1 Quality determination in accordance with article 4 and quantity
determination as performed by vessel draft surey and hatch cleanliness
inspection at loadport will be performed by KCS Laboratory located at the port
of Cua Ong, Xxxxxx Xxxxxxxx, Xxxxx Xxxx Xxxxxxxx, Xxxxxxx and witnessed by
Seller's representative whose results at loadport will be final and binding on
both
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parties. In the event KCS is unable to perform the quality and quantity
determination both parties shall agree to choose another internationally
recognized testing and survey laboratory. The laboratory will be appointed by
Seller on behalf of Buyer and Seller. The Seller shall be responsible for such
costs.
7.2 Buyer may, at his own expense, have a representative of his choice to
observe the sampling, quality and weight determination at loadport. If required
by Buyer, splits of the sample from each shipment may be retained for a period
of 60 days after the xxxx of lading date for that shipment.
7.3 If required by Buyer, a split of the sample will be provided by Seller
within 30 days after the xxxx of lading date for Buyees quality analysis.
7.4 Buyer may, at his own expense, have a draft survey and hatch inspection
performed at discharge port by an internationally recognized survey company
mutually agreeable to both Buyer and Seller. If the quantity established at
discharge port differs by more than plus or minus 1.50 percent from the loadport
survey quantity, the average of load and discharge quantity will be applicable.
If any contamination is visible on the top of the Coal which would affect the
handling and/or use of the Coal, it will be the responsibility of the Seller to
remove such contamination. Any demurrage caused by delay(s) in removing the
contamination will be the responsibility of the Seller.
8. QUALITY AND QUANTITY VARIATIONS
8.1 The Coal delivered will be subject to quality variations as per the current
applicable testing and sampling standards used (ASTM or ISO). Quantity
variations between loadport and discharge port draft surveys can differ by plus
or minus 1.50 percent.
8.2 If samples are provided to Buyer, Seller does not guarantee that the Coal
shall be in accordance with all characteristics of the sample. The sample should
be regarded as an average of the Coal and shows only the approximate
characteristics of the Coal.
9. PAYMENT TERMS
9.1 Payment will be at sight by means of an irrevocable confirmed letter of
credit, opened by a first class commercial bank acceptable to Seller's bank for
confirmation, payable/negotiable in full at the counters of Seller's bank. The
letter of credit will cover the maximum value of each shipment (i.e. maximum
tonnage x Price). Demurrage and despatch money payment will be settled outside
the letter of credit as per article 10.9. Validity and wording of the letter of
credit as well as advising/ confirming bank to be acceptable to Seller. Any
costs, expenses and/or fees in relation to the letter of credit charged within
Thailand shall be paid by the Buyer and any costs, expenses and/or fees in
relation to the letter of credit charged within The Netherlands shall be paid by
the Seller.
9.2 Failure to timely provide such letter of credit attributable to Buyer shall
immediately and completely excuse Seller from further performance under this
Contract, notwithstanding any other rights of Seller in relation to Buyers
default.
9.3 Buyer relinquishes any right to set off amounts charged by and between
parties. Claims of Buyer do not suspend the payment obligations of Buyer.
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9.4 If Buyer does not pay any amount he owes in a timely fashion and pursuant to
the foregoing, Buyer is in default and Seller shall notify Buyer in writing as
per article 20. As soon as Buyer is in default on any payment, all Sellees
remaining claims on Buyer are due, and Buyer is immediately in default without
notice with respect to those claims. As from the day on which Buyer is in
default, Buyer owes to Seller late interest of 1.5 per cent per month or part of
a month during which the default continues.
9.5 Seller shall be entitled to charge Buyer for all costs incidental to the
collection of any sums not yet paid and the interest payable thereon.
10. SHIPPING CONDITIONS
10.1 The vessel shall be a single deck bulk carrier with a maximum age of 20
years nominated by the Seller and confirmed by the Buyer. Seller shall advise
Buyer by telex or fax before expected time of shipment of the name and
nationality of the vessel, plus vessel's deadweight, draft, overall length,
number of hatches, expected laydays at the port of loading, the expected
quantity to be loaded and demurrage/despatch as specified in the Charter Party.
10.2 Buyer shall advise Seller of his acceptance or rejection of the vessel
within 24 hours after receipt of Sellees vessel nomination unless the nomination
is received by buyer after close of business Bangkok time on Friday or on the
day before a Holiday, in which case Buyer will inform Seller of his acceptance
or rejection upon opening of business in Thailand, by 12 Noon, Bangkok time, on
Monday or on the first working day after the Holiday.
10.3 At discharge port, Buyer guarantees:
One safe berth for vessels at Sriracha Port with following restrictions:
- Maximum deadweight 50,000 metric tons
- Maximum length overall 186 metres
- Maximum beam 30.40 metres
- Maximum draft 12 metres salt water
- AND/OR -
One safe anchorage at Kaosichang Anchorage with the following restrictions:
- Maximum deadweight 70,000 metric tons
- Maximum draft 20 metres salt water
- AND/OR -
One safe berth for vessels at Laem Chabang Port with following restrictions:
- Maximum deadweight 50,000 metric tons
- Maximum length overall 186 metres
- Maximum beam 30.40 metres
- Maximum draft 12 metres salt water
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10.4 Within 24 hours after vessel's departure from loadport, Seller shall give
Buyer the approximate estimated time of arrival at discharge port followed by a
2 day and 24 hour notice of expected arrival time at discharge port. These
notices shall be given as soon as practically possible for Seller, taking into
account Sellers office hours.
10.5 Vessel's cranes and grabs will be used for discharging. Buyer guarantees a
takeaway rate of 6,000 metric tonnes per day of 24 consecutive hours, weather
permitting, holidays excluded, unless used, by either truck, and/or barge and/or
conveyor regardless of discharge port. Buyer has the option to choose a takeaway
rate of 10,000 metric tonnes per day of 24 consecutive hours, weather
permitting, holidays excluded, unless used. Buyer shall have the right to
declare which takeaway rate will be guaranteed for each vessel upon Buyers
acceptance of each nominated vessel. For a period of two (2) years from the
Commencement Date, there will be a reduction in the Price of USD 0.65 per metric
tonne if Buyer chooses the takeaway rate of 10,000 metric tonnes per day in lieu
of the takeaway rate of 6,000 metric tonnes per day. Buyer and Seller shall meet
at least 60 days prior to the end of the second Contract Year to mutually agree
to revising the differential between the two aforementioned takeaway rates.
10.6 From time to time, Buyer and Seller agree to evaluate and discuss the
discharging rate guarantee and if necessary, change by mutual agreement. It is
understood by both parties that if the discharging rate guarantee increases,
there will be some reduction in the Price and if the discharging rate guarantee
decreases there will be some increase in the Price. Any change in the Price to
be agreed to by both parties.
10.7 The Master of the vessel to tender an NOR on arrival at discharge port. NOR
can be tendered between 9 a.m. and 5 p.m. Saturdays, Sundays and Holidays
included, WIBON, WECCON, WIFPON, WIPON. Laytime starts to count 12 hours after
presentation of NOR, unless discharge operations are sooner commenced, in which
case actual time is to count.
10.8 Demurrage is payable by Buyer to Seller or Despatch is payable by Seller to
Buyer at the rate as mentioned in the relevant Charter Party.
10.9 Demurrage money will be paid by Buyer and Despatch money will be paid by
Seller by telegraphic transfer with value latest 10 working days after receipt
by fax of a demurrage/ despatch invoice, a demurrage/despatch calculation and a
Statement of Facts. Failure by Buyer to make payment for demurrage or by Seller
to make payment for despatch within these 10 working days will immediately and
completely excuse the other party from further performance under this Contract,
notwithstanding any other rights of that party in relation to the the other
party's default, including but not limited to the right to put a lien on cargo
in the possession of or destined for the defaulting party.
10.10 All the above conditions are based upon unloading the vessel completely at
the berth. However, if all or part of the cargo is unloaded at anchorage due to
the request of Buyer, and the vessel requires grabs, the expenses for such grabs
will not be the responsibility of the Seller or the vessel owner. Time for
shifting from anchorage to berth or from berth to anchorage will be counted.
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11. DOCUMENTATION
11.1 The Xxxx of Lading will be made out to order of Nakornthai Strip Mill
Public Company Ltd in three originals of which one original Xxxx of Lading will
be placed on board to be handed over to the Buyers representative at discharge
port.
11.2 As soon as possible after vessel's loading Seller shall forward by
facsimile to Buyer copies of the following documents:
- Hatch cleanliness inspection report
- Clean on Board Xxxx of Lading
- Commercial invoice
- Certificate of weight
- Draft survey
- Sampling and analysis certificate
11.3 As soon as possible after vessel's loading Seller shall forward by courier
to Buyer non-negotiable duplicate originals of the following documents:
- Hatch cleanliness inspection report
- Clean on Board Xxxx of Lading
- Commercial invoice
- Certificate of weight
- Sampling and analysis certificate
12. RISK OF LOSS
12.1 Risk of loss or damage to the goods shall pass from Seller to Buyer when
goods pass ship's rail at the loading port as they are progressively loaded.
12.2 Ownership of the goods shall pass from Seller to Buyer upon full payment of
all money due by Buyer to Seller with respect to the delivery in question.
13. LIMITATIONS OF LIABILITY
13.1 BUYER ASSUMES ALL RISKS INVOLVED IN THE USE OF THE GOODS SOLD HEREUNDER. NO
WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE IS MADE BY SELLER. SELLER WARRANTS
ONLY THAT AT DELIVERY THE GOODS WILL CONFORM TO THE SPECIFICATIONS MENTIONED IN
THE CONTRACT AND THAT SELLER HAS THE RIGHT TO SELL AND DELIVER THE GOODS TO
BUYER FREE AND CLEAR OF ANY LIENS, ENCUMBRANCES AND OTHER CLAIMS OF THIRD
PARTIES. SELLER SHALL NOT BE LIABLE FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES.
14. LIABILITY AND INDEMNIFICATION
14.1 Sellers liability in connection with any defects in the Quality and
Quantity of the goods he delivers is limited to the fulfilment of one of the
obligations described in article 15.1.
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14.2 Seller is never obliged to pay damages except if and insofar as the damage
suffered was inflicted intentionally or by the gross negligence of Seller or his
own employees. Sellers liability for loss of profits, consequential or indirect
damages is, however, at all times excluded, except in the case of intention on
the part of Seller himself.
14.3 In all cases in which Seller is obliged to pay damages, these will never be
higher than, at Sellers option, either the invoice value of the delivery whereby
or in connection with which the damage was caused, or, if the damage is covered
by an insurance policy of Seller, the amount that is actually paid out by the
insurer with respect thereto.
14.4 Any claim toward Seller, except those recognized by Seller, lapses after a
period of 3 months from the time the claim arose.
14.5 Conditions which limit, exclude or determine liability, which Seller is
subjected to by Sellees suppliers in connection with the delivered goods, can be
imposed on Buyer by Seller.
14.6 Sellers employees, or third parties brought in by Seller for the
implementation of the Contract, can toward Buyer invoke all means of defence
afforded by the Contract as if they themselves were party to that Contract.
14.7 Buyer will hold harmless and indemnify Seller, his employees and others
brought in by Seller for the implementation of the Contract for each claim by
third parties in connection with the implementation by Seller of the Contract,
insofar as those claims are greater than or different from those to which Buyer
is entitled from Seller.
15. CLAIMS
15.1 During a period of three months after delivery Seller shall, with respect
to defects for which claims are submitted in a timely fashion pursuant to
article 15.3, either redeliver at no cost against restitution of the originally
delivered goods, or credit Buyer as far as reasonable in whole or in part for
the invoice value of the goods in question, all of this at Sellers option.
15.2 Buyer shall inspect the goods delivered by Seller immediately after
receipt.
15.3 Claims with respect to noticeable defects or quantity shall immediately, at
the latest 7 days from the moment the goods are available for inspection, be
lodged with Seller by telex, by facsimile or by registered mail, failing which
any claim in this respect shall cease to exist. Claims with respect to other
defects must be made in writing within 14 days after appearance of other
defects, on penalty of loss of any claim on Seller. Full particulars accompanied
by a report made by an independent, sworn surveyor shall be promptly, at the
latest 15 days after the date of lodging the claim with Seller, submitted to
Seller by registered mail, failing which any claim in this respect shall cease
to exist.
15.4 In case of a claim Buyer shall give due opportunity to Seller and/or a
surveyor appointed by Seller to investigate the goods in dispute. Buyer shall
forward to Seller without delay samples of the goods in dispute.
15.5 In proving the validity of a claim, in any case Buyer will have to prove
that already at the time that the goods were delivered to him, they had the
content and/or quality of which Buyer
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complains. By handling or processing the goods delivered under this Contract,
Buyer will be deemed to have waived any claim.
16. FORCE MAJEURE
16.1 Neither party shall be considered to be in default of performance of his
obligations under the Contract if and to the extent that the performance of such
obligations is delayed or prevented by force majeure.
16.2 Force majeure is deemed to exist if the performance of a contractual
obligation (other than the payment of monies due in relation to deliveries
and/or services already made) of either Seller or Buyer will be wholly or partly
prevented or impeded by any cause beyond the reasonable control of that party
and in case of circumstances due to which that party cannot be reasonably
required to accomplish the performance of his contractual obligations
(regardless whether such causes or circumstances could have been foreseen at the
time when the agreement was entered into).
16.3 In any event, and without prejudice to the general clause defining force
majeure in article 16.2, parties shall be able to claim force majeure in case of
strike, lock-outs, labour disputes, sabotage, storm, floods and other natural
phenomena, explosion, accidents, fire, war or acts of war, international
conflicts, civil commotion, riot, insurrection, piracy, terrorism, blockade,
epidemic, quarantine, embargo, mobilization, distraints of whichever kind,
shortage of energy or raw materials, export or import restrictions or
prohibitions, institutions of quota and/or other measures or acts of any
government, international organization or agency thereof, on the understanding
that Seller, shall also be allowed to claim force majeure if similar
circumstances present themselves to Sellers Vietnamese supplier.
16.4 The provisions of this clause will apply notwithstanding any delay of
performance of either party at the time the force majeure becomes operative.
16.5 In the event of reduction of quantity or change in quality of the Coal
shipped by Sellers supplier, Seller may equitably allocate his available
supplies to all his commitments to all contracting parties and reduce the total
quantity of Coal to be supplied to Buyer without liability.
16.6 If an event of force majeure prevents either party from carrying out his
obligations under or in connection with the Contract, such party shall promptly
notify the other party in writing.
16.7 Each party, upon giving notice as above, may suspend his obligations to the
extent mutually agreed as necessitated by the occurrence of force majeure, and
relevant periods shall be extended commensurate with such suspension. Nothing
herein shall alter any obligations with respect to obligations not affected by
such force majeure.
16.8 The occurrence of force majeure shall not entitle either party to any
compensation whatsoever for any losses suffered as a result thereof.
16.9 If after 180 (one hundred and eighty) days from the date of giving the
aforesaid notice, the notifying party shall still be so prevented, for reasons
of force majeure, from performing his obligations under the contract, the
parties shall consult one another in good faith with a view to determining
equitable action appropriate under the circumstances.
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16.10 Notwithstanding the period specified under the preceeding paragraph, it is
hereby mutually agreed that at any time subsequent to the occurrence of force
majeure, either party may, upon his request, discuss amicably with the other
party in order to set the provisional arrangements to be adopted by both parties
for the purpose of minimizing or avoiding any losses, damages or expenses which
either party may incur in consequence of the suspension as provided hereunder.
17. DUTIES
17.1 All taxes, duties or other impositions of any nature whatsoever in the
country of origin as pertains to the Coal Contract will be for Seller's account.
All taxes, duties or other impositions of any nature whatsoever in the country
of destination as pertains to the Coal Contract will be for Buyers account.
18. DELAY, DEFAULT AND DISSOLUTION
18.1 If either party does not, not properly or not in due time fulfill any of
his obligations with respect to the Contract (except for delays in shipment, see
article 18.2), the injured party shall inform the other party in writing of the
nature of the default, and that party shall have a period of 30 days from
receipt of the said notice in which to rectify the said default. If the
offending party fails to rectify the said default within the said period, the
other party may suspend or dissolve the Contract in accordance with article
18.3.
18.2 If the shipment schedule as agreed on the basis of article 3.5 is delayed
and such delay is attributable to either party, that party is due to the other
party a penalty of 1 (one) percent of the Price per metric tonne so delayed for
each whole week of delay after a grace period of one week, in full and final
settlement of the offending party's liability for such delay. If the delay lasts
longer than 6 weeks, the injured party may suspend or dissolve the Contract in
accordance with article 18.3.
18.3 Without prejudice to the provisions laid down in this Contract, either
party, if not, not properly or not in due time fulfilling any of his obligations
with respect to this Contract, and also in the event of any act of bankruptcy,
winding up, moratorium, liquidation, insolvency, being placed under control,
administration or tutelage or offers of composition to his creditors, shall be
deemed to be in default by law, and the other Party shall have the right by
means of a written declaration, without any notice of default being given and
without court intervention, to suspend the performance of the Contract or to
dissolve the Contract wholly or partly. In these cases, any claim either Party
shall have or get against the other Party shall be due for payment at once and
in full.
19. SPECIAL CONDITIONS
19.1 This Contract contains the entire agreement between Buyer and Seller with
respect to the subject matter herein and supersedes all previous writings,
understandings, negotiations, representations or agreements with respect
thereto, except where provided otherwise. No general sales conditions of Seller
or general purchase conditions of Buyer are applicable.
19.2 This Contract shall only come into force after being signed by both Buyer
and Seller. Any amendments to this Contract shall be in the form of an Addendum
to the Contract and shall come
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into force only after both parties will have signed the Addendum, whereafter it
will form an integral part of this Contract.
19.3 If any provision of this Contract shall be invalid, illegal or
unenforceable to any extent, the validity, legality and enforceability of the
remaining provisions shall not be affected or impaired thereby. If the
invalidity, illegality or unenforceability of one or more provisions of this
Contract or any other circumstance concerning the performance under this
Contract reveals a situation not provided for in this Contract, Buyer and Seller
shall jointly seek an arrangement having a valid legal and economic effect which
will be as similar as possible to the ineffective provision and will cover the
scope of any missing provision in a manner reasonably directed to the purpose of
this Contract.
19.4 Failure of either party to require strict performance of any provision of
this Contract, or such party's forebearance to exercise any right, shall not be
deemed a waiver by such party of its right to require strict performance or
exercise such right in the future.
19.5 Except where provided otherwise herein, the provisions of INCOTERMS 1990
shall apply.
19.6 Neither this Contract nor the rights and duties arising out of it may be
assigned, delegated or otherwise transferred by either Buyer or Seller to any
third party without the other party's prior written consent.
19.7 This Contract is confidential and its contents will be kept strictly
confidential by both Buyer and Seller.
19.8 All communications between Buyer and Seller with regard to this Contract
shall be in the English language.
20. DOMICILLIUM
20.1 All communications and/or notices under this Contract shall be deemed to
have been duly given in terms of this Contract if they are sent by mail,
facsimile or telex transmission to either party at their following addresses:
THE BUYER: Nakornthai Strip Mill Public Company Limited
000 Xxx, 0 Xxxxxxx 000, X. Xxxxx
XXXXXXXX, Xxxxxxxx, 00000
Xxxxxxxx
Phone: (00) 00 000 000
Fax: (00) 00 000 000
THE SELLER: SSM Coal X.X.
Xxxxxxxxxxxxxxx 000
0000 XX XXXXXXXXX
Xxx Xxxxxxxxxxx
Phone: (00) 00 000 0000
Fax: (00) 00 000 0000
Telex: 21396 ssm nl
or at any such other addresses as either party may from time to time designate
in writing.
-12-
21. APPLICABLE LAW AND JURISDICTION
21.1 This Contract will be governed by and construed in accordance with the laws
of England.
21.2 Any dispute arising out of or in connection with this Contract shall in the
first instance be decided by the competent Court in Rotterdam, The Netherlands.
22. HEADINGS
22.1 The headings in this Contract are for the sake of convenience only, and
shall not affect the construction and/or interpretation of the Contract.
23. EXECUTION
23.1 This Contract is executed in two originals, whereof each party will receive
one original.
-13-
In witness whereof the parties declare to have duly agreed to the terms of this
Contract as of the day and year first written above.
SSM COAL B.V. NAKORNTHAI STRIP MILL
PUBLIC COMPANY LIMITED
/s/ Xxxxxx X.X. Xxxxxx /s/ Xxxxxx Xxxxxxx
--------------------------------- -------------------------------------
Title: Managing Director Title: Managing Director
-14-
DATE: 18 OCTOBER 1996
ADDENDUM NO. 1
TO THE
CONTRACT FOR THE SALE AND PURCHASE OF ANTHRACITE COAL
BETWEEN
SSM COAL B.V., ROTTERDAM
(THE SELLER)
AND
NAKORNTHAI STRIP MILL PUBLIC COMPANY LIMITED
(THE BUYER)
DATED 16 OCTOBER, 1996
1
THIS ADDENDUM IS ONLY VALID IF IT IS FULLY EXECUTED PRIOR TO NOVEMBER 5, 1996.
THE ADDENDUM FIXES THE FREIGHT PORTION OF THE CIF PRICE TO BE NEGOTIATED IN THE
CONTRACT FOR THE FIRST TWO CONTRACT YEARS AS FOLLOWS:
FOR ACCOUNT OF RECEIVERS:
"NAKORNTHAI STRIP MILL PUBLIC COMPANY LTD", BANGKOK, THAILAND
VESSELS
TO BE EMPLOYED ARE MAXIMUM 20 YEARS OF AGE AND ARE DESCRIBED AS FOLLOWS:
46000 MTS DWT ON 12.00 MTRS DRAFT SWAD L.O.A. ABT 190.MTRS BEAM ABT 31 MTRS
57000 CBM GRAIN IN 5 OR 6 HOLDS 4 OR 5 CRANES VARYING BETWEEN 15-30 TONS EACH
WITH GRABS ON BOARD EACH GRAB VARYING 8 - 10 CBM OR SIMILAR TYPE
FROM:
1SB PLUS 0 XX XXXX XXXXXX/XXXXXX, XXXXXXX
TO:
1 SB SRIRACHA OR IN RECEIVERS OPTION 1SA KOSICHANG, THAILAND (RECEIVERS
GUARANTEE THAT AT SRIRACHA INNER BERTH THERE IS 12 MTRS SWAD)
CARGO QUANTITY:
1ST YEAR 81000 MT 10 PCT PLUS OPTIONAL QUANTITY 9000 MT 10 PCT XXXXX 2ND YEAR
180000 MT 10 PCT PLUS OPTIONAL QUANTITY 20000 MT 10 PCT XXXXX OF ANTHRACITE
FINES IN BULK
THIS IN EFFECT MEANS, 1ST YEAR MAXIMUM 99000 MT OF ANTHRACITE, 2ND YEAR MAX
220000 MT OF ANTHRACITE)
CARGO SIZE EACH LIFTING 40/42500 MT 10 PCT XXXXX WITH THE LAST CARGO UNDER EACH
CONTRACT YEAR TO BE A FULL AND COMPLETE CARGO WITHIN THE 40/42500 MT 10 PCT
XXXXX RANGE
2
SHIPPING CONTRACT PERIOD:
FIRST YEAR : FROM MAY 1, 1997 UNTIL APRIL 30,1998
SECOND YEAR: FROM MAY 1, 1998 UNTIL APRIL 30,1999
TENTATIVE YEARLY SCHEDULE OF SHIPMENTS TO BE ADVISED BY RECEIVERS PRIOR TO THE
COMMENCEMENT OF THIS CONTRACT OF AFFREIGHTMENT.
AT SRIRACHA BERTH OR AT 1SA KOSICHANG VESSEL TO SELFDISCHARGE WITH VESSELS
GEAR/GRABS WITH SHORELABOUR TO OPERATE VESSELS DISCHARGING EQUIPMENT AT NO COSTS
TO OWNERS, RECEIVERS GUARANTEE A TAKEAWAY RATE OF 6000 MT SHINC WP PER DAY OF 24
CONSECUTIVE HRS, RECEIVERS OPTION TAKEAWAY OF 10000 MT SHINC WP PER 24
CONSECUTIVE HOURS BASIS 4 HOPPERS. THIS OPTION DECLARABLE UPON SAILING LOADPORT.
RECEIVERS OPTION FOR THE CREW OF THE VESSEL TO OPERATE VESSELS DISCHARGING
EQUIPMENT WHEN DISCHRATE 6000 MT AT A FREIGHT PREMIUM OF USD 0.75 PMT OVER THE
TOTAL CARGO, BASIS XXXX OF LADING WEIGHT, THIS OPTION DECLARABLE UPON SAILING
FROM LOADPORT.
FREIGHT(S):
1ST YEAR: USD 8.70 PMT BASIS 6000 SC TAKEAWAY
USD 8.10 PMT BASIS 10000 SC TAKEAWAY
2ND YEAR: PREMIUM OF USD 0.60 PMT ON TOP OF ABOVE RATES
12HRS T.T. UNLESS SOONER COMMENCED UPON WHICH TIME COMMENCES TO COUNT.
VESSEL IS ALLOWED TO TENDER NOTICE OF READINESS 9AM-5PM SUNDAYS, HOLIDAYS
INCLUDED, WHETHER IN FREE PRATIQUE OR NOT, WHETHER IN PORT OR NOT, WHETHER IN
BERTH OR NOT, WHETHER CUSTOMS CLEARED OR NOT.
DEMURRAGE/HALF DESPATCH LAYTIME SAVED:
FREE DESPATCH, IN CASE CREW OPERATES VESSELS GEAR/GRABS.
1ST YEAR: USD 8500 PER DAY
2ND YEAR: USD 9500 PER DAY
NOMINATION CLAUSE:
FOR EACH CARGO, RECEIVERS TO ADVISE SSM COAL B.V. 30 DAYS PRIOR TO THE 1ST DAY
OF A 15 DAYS LAYCAN SPREAD, THEIR REQUIREMENT OF A CARGO. SSM THEN TO NOMINATE A
PERFORMING VESSEL OR SUB LATEST 10 DAYS PRIOR TO THE 1ST DAY OF THE LAYCAN
TOGETHER WITH A NARROWING OF THE LAYCAN TO A 10 DAYS LAYCAN SPREAD. RECEIVERS TO
CONFIRM AND ACCEPT A NOMINATION OF A PERFORMING VESSEL WITHIN 24 HRS. SAT SHEX
AFTER RECEIPT OF SUCH NOMINATION.
3
IN ANY CASE RECEIVERS AND SSM RIGHT THROUGH THE RUNNING OF THIS CONTRACT OF
AFFREIGHTMENT TO REMAIN IN CLOSE CONTACT WITH REGARD TO THE SCHEDULE OF
SHIPMENTS.
TAXES/DUES, IF ANY AT DISCHARGINGPORT ON THE CARGO TO BE FOR RECEIVERS ACCOUNT
TAXES/DUES, IF ANY AT DISCHPORT, ON THE VESSEL AND/ OR FREIGHT TO BE FOR OWNERS
ACCOUNT
SSM AMWELSH CHARTER-PARTY TO GOVERN THIS CONTRACT OF AFFREIGHTMENT.
THIS ADDENDUM IS EXECUTED IN TWO ORIGINALS, WHEREOF EACH PARTY WILL RECEIVE ONE
ORIGINAL.
IN WITNESS WHEREOF THE PARTIES DECLARE TO HAVE DULY AGREED TO THE TERMS OF THIS
ADDENDUM AS OF THE DAY AND YEAR WRITTEN BELOW.
NAKORNTHAI STRIP MILL
SSM COAL. B.V. PUBLIC COMPANY LIMITED
------------------------------------ -----------------------------
Name: Jan Willem Slingeberg Name: Xxxx Xxxxxx-Janchai
Title: Chartering Manager Title: Managing Director
Date: 18-10-96 Date: 29/10/96
----------------------------- -----------------------
------------------------------------
Name: Xxxxxx X. Xxxxxxxxxx
Title: Director, Market Development
Date: 25-10-96
-----------------------------
4
--------------------------------------------------------------------------------
NAKORTHAI STRIP MILL PUBLIC
Xx. X.X. Xxxxxxxx
16 Fl. U.M. Xxxxx Xxxxxxxx
0 Xxxxxxxxxxx Xx., Xxxxxxxxx
XXXXXXX 00000
Xxxxxxxx
Dear Xx. Xxxxxxxx, 13th May 1996
Thank you for your Letter of Intent covering your desire to purchase and our
wish to supply Vietnamese anthracite to your plant.
We appreciate your confidence in our company and assure you that SSM will prove
to be an excellent long-term supplier of your anthracite needs.
Xx. Xxxxxxxxxx has informed me that a number of points were discussed with Xx.
Xxxxxx on May 8 which are not incorporated into this Letter of Intent. For good
order's sake, I would like to note these points and make them a part of the
attached Letter of Intent.
1. Under the topic of "Scope of Supply", we feel it would be in your best
interest not to limit yourself to only one particular specification. In
addition to the specification attached, other grades of Vietnamese
anthracite, such as No. 8, should be considered as alternatives.
2. Under the topic "Scope of Supply", you only mention a vessel size of
25,000 tonnes. In order to maximise freight savings, the vessel size
should be specified as a range of 25-40,000 tonnes.
3. Under the topic "Conditions of Agreement", you request a letter from a
Vietnamese ministry stating that SSM is authorised to sell coal in
Thailand. We have already provided this document to Xx. Xxxxxx and
therefore believe this condition has already been satisfied.
I look forward to meeting you in the near future and am sure that events will
progress in a very satisfactory fashion culminating in a long-term contract.
Yours sincerely,
SSM COAL B.V.
/s/ Xxxxxx X.X. Xxxxxx
M.J.D. Xxxxxx
Managing Director
LETTER OF INTENT
This LETTER OF INTENT (LOI) is entered into by Nakornthai Strip Mill Public
Company Limited (NSM) and SSM Coal bv (SSM)
Whereas, NSM has determined that it will construct and operate a 500,000 tpy DRI
plant at its flat rolled steel facility in Chonburi, Thailand, with the nominal
capability of producing 1.5 million metric tonnes per annum of liquid steel; and
Whereas, SSM Coal has intended to supply to NSM some Vietnam anthracite, based
on the sample delivered to SGA on March 19, 1996 and the terms and conditions
described herein:
1. Scope of Supply
SSM Coal intends to supply Vietnam anthracite to NSM, with the typical
characteristics as analyzed by SGA (see Attachment No. 1). The initial shipment
has to be scheduled for July 1997 to Sriracha Harbour.
The expected yearly tonnage to be supplied are 100,000 tonnes in 1997 and
250,000 tonnes the following years. Cargo size should be 25,000 tonnes.
2. Supply Contract Duration
NSM is interested to consider a long-term (10 years or more) supply contract
with SSM Coal.
3. Conditions of Agreement
The LOI is conditional on SSM delivering to NSM a document signed by the
Vietnamese Ministry stating that SSM is authorized to sell Vietnam coal into
Thailand at prices similar to other customers of Vietnamese coal.
The Contract Terms and Conditions will be mutually agreed between NSM and SSM
Coal at a commercial meeting to be scheduled with both parties.
BANGKOK, THAILAND - 9 MAY, 1996
For /s/ Xxxx X. Xxxxxxxx
-------------------------------
For /s/ Xxxxxx X.X. Xxxxxx
-------------------------------
Studiengesellschaft fur Eisenerzaufbereitung SGA
---------------------------------------------------------------------------
Material grade Vietnam anthracite Wyoming Bentonite
Designation < 0.2 mm
Deliverer KHD
Receiving date 21.03.96 05.04.88
SGA designation E 6267 E 4282
--------------------------------------------------------------------------------
Sample moisture (%) -- --
Sample weight (kg) 15.0 15.0
Chemical
analysis
Feo (%) 0.4 2.4
FeO (%) 0.4
SiO (%) 3.29 62.0
Al203 (%) 1.75 20.4
Ca0 (%) 0.27 1.9
Mg0 (%) 0.07 2.8
P (%) 0.011 0.056
S (%) 0.450 0.260
Na20 (%) 0.025 2.400
K20 (%) 0.196 0.060
Mn (%) 0.010 0.050
TiO2 (%) 0.070 0.500
V (%) 0.010 0.005
C (%) 87.6 n.d.
L0I (%) 93.8 7.0
--------------------------------------------------------------------------------
Size
Distribution
>0.315 mm (%/Cum.%) -- / -- -- / --
>0.2 mm (%/Cum.%) 0.9 / 0.9 -- / --
>0.1 mm (%/Cum.%) 47.2 / 48.1 0.8 / 0.8
>0.063 mm (%/Cum.%) 17.6 / 65.7 0.7 / 1.5
>0.04 mm (%/Cum.%) 12.0 / 77.7 2.0 / 3.5
>0.025 mm (%/Cum.%) 5.9 / 83.6 1.7 / 5.2
>0 mm (%/Cum.%) 16.4 / 00.0 94.8 / 100.0
--------------------------------------------------------------------------------
HS - 50 Value (mm) 0.096 0.013
D - 80 Value (mm) 0.160 0.028
--------------------------------------------------------------------------------
Xxxxxx figures n.d. 3630
Xxxxxx -- 780
--------------------------------------------------------------------------------
App.: 1 Chemical analysis, size distribution and Xxxxxx figures , Vietnam
anthracite < 0.2 mm and Wyoming Bentonite.
--------------------------------------------------------------------------------
ADDENDUM
TO THE CONTRACT FOR THE SALE AND PURCHASE OF ANTHRACITE COAL
(OCTOBER 16, 1996)
BETWEEN
SSM COAL B.V., (THE SELLER)
AND
NAKORNTHAI STRIP MILL PCL. (THE BUYER)
As per our Contract for the sale and purchase of anthracite coal signed on
October 25, 1996, article 5.2 "the Price for deliveries in each Contract Year
and the quantity of each Grade required in the Contract Year shall be determined
as follows: not less than 90 days prior to the commencement of each Contract
Year, Buyer and Seller should meet to negotiate the Price and the quantity of
each Grade during said Contract Year".
As per contract, the quantity for the first Contract Year (April 1, 1997 to
March 31, 1998) will be 81,000 MT + / -9000 MT. The first cargo should be Grade
#7 and should be delivered at very end of December 1997 or the beginning of
January 1998. The second cargo should be Grade #8 and should be delivered in
late February 1998.
On June 6, 1997, SSM Coal and NSM agreed upon the following prices:
Quality Grade Agreed Prices
------------- -------------
Grade #7 $US 48.000 PMT CIF
Grade #8 $US 43.125 PMT CIF
SSM COAL B.V. NAKORNTHAI STRIP MILL PCL.
/s/ Frans Schrner /s/ Xxxxxx Xxxxxxx
------------------------------------- -----------------------------------
Title: Marketing Manager Vietnamese Coal Title: Managing Director
Date: June 6, 1997 Date: June 6, 1997
--------------------------------------------------------------------------------
NAKORTHAI STRIP MILL PUBLIC
Xx. X.X. Xxxxxxxx
16 Fl. U.M. Xxxxx Xxxxxxxx
0 Xxxxxxxxxxx Xx., Xxxxxxxxx
XXXXXXX 00000
Xxxxxxxx
Dear Xx. Xxxxxxxx, 13th May 1996
Thank you for your Letter of Intent covering your desire to purchase and our
wish to supply Vietnamese anthracite to your plant.
We appreciate your confidence in our company and assure you that SSM will prove
to be an excellent long-term supplier of your anthracite needs.
Xx. Xxxxxxxxxx has informed me that a number of points were discussed with Xx.
Xxxxxx on May 8 which are not incorporated into this Letter of Intent. For good
order's sake, I would like to note these points and make them a part of the
attached Letter of Intent.
1. Under the topic of "Scope of Supply", we feel it would be in your best
interest not to limit yourself to only one particular specification. In
addition to the specification attached, other grades of Vietnamese
anthracite, such as No. 8, should be considered as alternatives.
2. Under the topic "Scope of Supply", you only mention a vessel size of
25,000 tonnes. In order to maximise freight savings, the vessel size
should be specified as a range of 25-40,000 tonnes.
3. Under the topic "Conditions of Agreement", you request a letter from a
Vietnamese ministry stating that SSM is authorised to sell coal in
Thailand. We have already provided this document to Xx. Xxxxxx and
therefore believe this condition has already been satisfied.
I look forward to meeting you in the near future and am sure that events will
progress in a very satisfactory fashion culminating in a long-term contract.
Yours sincerely,
SSM COAL B.V.
/s/ Xxxxxx X.X. Xxxxxx
M.J.D. Xxxxxx
Managing Director
LETTER OF INTENT
This LETTER OF INTENT (LOI) is entered into by Nakornthai Strip Mill Public
Company Limited (NSM) and SSM Coal bv (SSM)
Whereas, NSM has determined that it will construct and operate a 500,000 tpy DRI
plant at its flat rolled steel facility in Chonburi, Thailand, with the nominal
capability of producing 1.5 million metric tonnes per annum of liquid steel; and
Whereas, SSM Coal has intended to supply to NSM some Vietnam anthracite, based
on the sample delivered to SGA on March 19, 1996 and the terms and conditions
described herein:
1. Scope of Supply
SSM Coal intends to supply Vietnam anthracite to NSM, with the typical
characteristics as analyzed by SGA (see Attachment No. 1). The initial shipment
has to be scheduled for July 1997 to Sriracha Harbour.
The expected yearly tonnage to be supplied are 100,000 tonnes in 1997 and
250,000 tonnes the following years. Cargo size should be 25,000 tonnes.
2. Supply Contract Duration
NSM is interested to consider a long-term (10 years or more) supply contract
with SSM Coal.
3. Conditions of Agreement
The LOI is conditional on SSM delivering to NSM a document signed by the
Vietnamese Ministry stating that SSM is authorized to sell Vietnam coal into
Thailand at prices similar to other customers of Vietnamese coal.
The Contract Terms and Conditions will be mutually agreed between NSM and SSM
Coal at a commercial meeting to be scheduled with both parties.
BANGKOK, THAILAND - 9 MAY, 1996
For /s/ Xxxx X. Xxxxxxxx
-------------------------------
For /s/ Xxxxxx X.X. Xxxxxx
-------------------------------
Studiengesellschaft fur Eisenerzaufbereitung SGA
---------------------------------------------------------------------------
Material grade Vietnam anthracite Wyoming Bentonite
Designation < 0.2 mm
Deliverer KHD
Receiving date 21.03.96 05.04.88
SGA designation E 6267 E 4282
--------------------------------------------------------------------------------
Sample moisture (%) -- --
Sample weight (kg) 15.0 15.0
Chemical
analysis
Feo (%) 0.4 2.4
FeO (%) 0.4
SiO (%) 3.29 62.0
Al203 (%) 1.75 20.4
Ca0 (%) 0.27 1.9
Mg0 (%) 0.07 2.8
P (%) 0.011 0.056
S (%) 0.450 0.260
Na20 (%) 0.025 2.400
K20 (%) 0.196 0.060
Mn (%) 0.010 0.050
TiO2 (%) 0.070 0.500
V (%) 0.010 0.005
C (%) 87.6 n.d.
L0I (%) 93.8 7.0
--------------------------------------------------------------------------------
Size
Distribution
>0.315 mm (%/Cum.%) -- / -- -- / --
>0.2 mm (%/Cum.%) 0.9 / 0.9 -- / --
>0.1 mm (%/Cum.%) 47.2 / 48.1 0.8 / 0.8
>0.063 mm (%/Cum.%) 17.6 / 65.7 0.7 / 1.5
>0.04 mm (%/Cum.%) 12.0 / 77.7 2.0 / 3.5
>0.025 mm (%/Cum.%) 5.9 / 83.6 1.7 / 5.2
>0 mm (%/Cum.%) 16.4 / 00.0 94.8 / 100.0
--------------------------------------------------------------------------------
HS - 50 Value (mm) 0.096 0.013
D - 80 Value (mm) 0.160 0.028
--------------------------------------------------------------------------------
Xxxxxx figures n.d. 3630
Xxxxxx -- 780
--------------------------------------------------------------------------------
App.: 1 Chemical analysis, size distribution and Xxxxxx figures , Vietnam
anthracite < 0.2 mm and Wyoming Bentonite.
--------------------------------------------------------------------------------
