EXHIBIT 10.1
PORTIONS
HEREOF IDENTIFIED BY [***] HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT UNDER RULE 24B-2 PROMULGATED UNDER
THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED. A COMPLETE COPY OF THIS DOCUMENT HAS BEEN FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION.
GLENCORE AG
GLENCORE CONTRACT NO. 025.14.27124-P
THIS AGREEMENT is made on 10th March 2014
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BETWEEN:
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El Capitain Precious Metals,
Inc.
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8390 Via de Ventura, Suite F-110
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Scottsdale, Arizona 85258-3189
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(Hereinafter called “Seller”)
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AND:
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Glencore AG
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Baarermattstrasse 3, P.O. Box 1301
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6341 Baar, Switzerland
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(Hereinafter called “Buyer”)
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1 ton = 1 metric ton of 1000 kilograms
or 2204.62 lbs.
The quantity of Product delivered
under this Agreement is set out in Schedule 1 (the
Base Quantity
).
The specifications of Product
delivered are set out in Schedule 1 (Specifications).
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4.1
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CFR China Discharge Port Reference Price
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The CFR Discharge port reference
price will be set out in Schedule 1.
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5.
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FAILURE TO MEET SPECIFICATIONS:
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If the Product does not meet the
Penalty Specifications in respect of the shipment, the Buyer shall be under no obligation to accept the shipment of Product.
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6.
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PASSING OF TITLE AND RISK:
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6.1
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Passing of title and risk, freight cost
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Product is sold and purchased
under this Agreement on a CFR FO Discharge port basis in a vessel supplied by the Seller. Title to and all risk of loss, damage
or destruction to the Product delivered shall pass to the buyer at the time it passes over the ship's rail from the loading devices
into the vessel at the Loading Port in accordance with INCOterms 2010. The Seller will arrange and pay for the freight to transport
the Product to the Discharge Port.
Seller will advise Buyer of
laycan once
[***]
tons are delivered to a port. The first is expected to occur by June 15th, 2014. The expected
tonnage is
[***]
dmt +/- 10%.
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8.1
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Weighing at Loading Port
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At the Loading Port the Seller
at the Seller's expense shall determine the weight of the shipment of Product by draft survey done by a mutually agreed Independent
Surveyor and provide a certificate (Certificate of Weight) showing details of the determination which shall be the basis for the
Seller's provisional invoice. The Buyer may, at the Buyer's expense, have its representative(s) present at the time of such loading.
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8.2
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Weighing at Discharge Port
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At the Discharge Port the Buyer
at the Buyer's expense shall arrange for CIQ, or an alternative third party to be mutually agreed upon by the Parties, to undertake
weighing of the shipment by draft survey. The weight thus determined by CIQ (or the third party) shall be final as to the wet quantity
of the shipment except as otherwise provided for in clause 8.3. If Buyer does not receive CIQ results within 60 days from completion
of discharge, Load Port results shall be final. The dry quantity shall be determined by deducting the free moisture referred to
in clause 9.2. from such wet quantity.
If after the determination of
the weight of the shipment in accordance with clauses 8.1. and 8.2. there are any differences of weight outturns over 0.50 percent
on a wet basis then the final weight of the shipment shall be determined by averaging the weight determined at the Discharge Port
and at the Loading Port. The final weight of the shipment determined in accordance with clause 8.1. to this clause 8.3. shall be
set out in a certificate which shall be the basis for the Seller's final invoice.
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9.1
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Sampling and analysis at Loading Port
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At the Loading Port, the
Seller at its own expense shall appoint a mutually agreed Independent Surveyor to take a representative sample of each shipment
of Product. The sampling will be undertaken by a mTony Burgeranual sampling system to an agreed sampling schedule. For each sample,
divide the sample into 2 parts, analyses such parts for chemical composition and for free moisture content and provide a certificate
(Certificate of Analysis) showing details of the determination which shall be the basis for the Seller's provisional invoice.
The Buyer may, at the Buyer's expense, have its representative(s) present at the time of such loading.
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9.2
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Sampling and analysis at Discharge Port
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At the Discharge Port the Buyer,
at the Buyer's expense shall arrange for CIQ, or an alternative third party to be mutually agreed upon by Parties, to take representative
samples of each shipment of Product and analysis such sample for chemical and physical composition and for free moisture content.
The Seller may at the Seller's expense have its representative(s) present at the time of sampling and analysis. The Buyer shall
promptly forward to the Seller by airmail, facsimile and/or email a certificate issued by CIQ (or the third party) showing the
percentage of chemical contents, the percentage of free moisture loss at 105 degrees Celsius and the relevant screen analysis.
The CIQ (or third party) analysis shall be final except as otherwise provided for in clause 9.3. If Buyer does not receive CIQ
results within 60 days from completion of discharge, Load Port results shall be final.
Should there be a difference of
0.50% or more in the iron and moisture content analysis, or if there is a significant difference of 0.50% or more between the Buyer's
and the Seller's analysis for physical or other chemical elements (which are in excess of the maximum content allowed in the Specifications)
for such samples, the relevant percentage of free moisture or Fe content or other chemical or physical contents shall be determined
by averaging the percentage determined at the Discharge Port and at the Loading Port. The final analysis of a shipment determined
in accordance with clause 9.1 to this clause 9.3 shall be set out in a certificate which shall be the basis for the Seller's final
invoice. For P and S the above difference should read as 0.05%.
The expected value of a shipment
of Product (Expected Value) is calculated by multiplying the price (as detailed in Schedule 1) by the Base Quantity (expressed
in DMT) for that shipment (as detailed in Schedule 1).
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(a)
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Payment of the invoice issued by the Seller to the Buyer for the delivery of Product under this
Agreement shall be made under an irrevocable Letter of Credit in accordance with the provisions of this clause 10. LC should provide
for reimbursement to the negotiating bank in 5 business days.
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(b)
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60 days before the beginning of each confirmed laycan in the loading port, the Buyer shall open,
with a prime commercial bank through the Seller's Bank, an irrevocable Letter of Credit acceptable to the Seller, payable at sight,
in favour of the Seller in an amount in US dollars equal to
[***]
% of the Expected Value of the shipment that includes:
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- Place of Expiry:
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At the counter
of negotiating bank
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- Date of Expiry:
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90 days after
LC issuance date
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- Available With:
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Any bank
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- Partial shipments:
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Allowed
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- Loading Port:
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Greens Port
or Galveston, USA
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- Discharging Port:
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Main Port
(s), China
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- Period for presentation:
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15 days
after BL date
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- Latest UCP Rules to apply
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All Opening Bank charges including
interest, and finance charges are for Buyer's account. All Advising, Negotiating Bank charges are for Seller's account. Letter
of credit should mention that documents dated before the opening of the Letter of Credit are acceptable.
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(c)
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The Buyer indemnifies the Seller against any claim, loss, damage, liability, cost and expense,
including any demurrage costs that may be incurred or sustained by the Seller arising out of the Buyer's non-compliance with paragraph
(b).
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The price payable for a shipment
of Product (Amount Due) is calculated by multiplying the price (as detailed in Schedule 1) by quantity of Product on that shipment
as evidenced on the Certificate of Weight (converted to DMT pursuant to clause 10.) The Amount Due shall be reduced by any price
adjustments applicable as set forth in schedule 1 of this Agreement.
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10.4
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Provisional Payment (Provisional drawing)
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(a)
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The Letter of Credit shall be payable against the presentation of the Seller's sight draft for
the amount of
[***]
per cent
[***]
% of the Amount Due, accompanied by the documents referred to in clause 10.4(b).
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(b)
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When drawing against the Letter of Credit for its provisional payment, the Seller shall present
the following documents to Seller's Bank for negotiation:
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(i)
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a full set of clean on board ocean bills of lading made out to order, blank endorsed and notify blank; Charter Party B/L acceptable;
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(ii)
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Seller's provisional invoice for
[***]
% of the value in one original and two copies;
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(iii)
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Certificate of Analysis in one original and three copies, issued by Independent surveyor at Load Port;
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(iv)
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Certificate of Weight in one original and two copies issued by Independent surveyor at Load Port;
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(v)
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Certificate of Origin in one original and two copies issued by Chamber of Commerce and / or Industries.
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10.5
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Final payment (Final drawing)
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Subject to clause 10.6, the Seller
will prepare a final invoice for remaining
[***]
% of the value of the shipment once all CIQ details are known, based on
the certificates provided in clause 8.3 and clause 9.3. Shall the balance amount be in Seller's favor, then the buyer shall pay
this amount within 7 working days of the date of the seller’s final invoice. Otherwise, two copies of the final invoices
shall be presented to the Buyer and any balance due to the Buyer will be made by telegraphic transfer within 7 working days of
the date of the seller's final invoice.
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10.6
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Certificates of Weight and Analysis final in some circumstances
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The Certificate of Weight and
the Certificate of Analysis issued at load port shall be conclusive as to the weight or the analysis of the shipment of Product
(as the case may be), and the provisional invoice issued under clause 10.4. will be considered the final invoice if:
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(a)
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A determination of weight under clause 8.2. is not undertaken at the Discharge Port;
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(b)
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All or part of the Product is lost after loading into the vessel (Seller is then not obliged to
deliver replacement cargo); or
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(c)
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Product is contaminated (including by seawater) whilst on the vessel or being discharged.
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(d)
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The certificates mentioned in clauses 8.2 and 9.2 are not sent to Seller within days after completion
of vessel discharge.
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Seller shall provide an irrevocable
and unconditional first demand guarantee or a standby letter of credit (jointly referred to as ‘Performance Bond’)
issued by a bank. The issuing bank and the wording of the guarantee must be fully acceptable to the Buyer.
The amount of the Performance
bond shall be
[***]
% (
[***]
percent) of the expected CFR cargo value. Performance bond shall be opened within 3 working
days before the expected LC issuance date.
Based on the expected laycan,
the performance bond for the first shipment shall opened by 27th April 2014 and 48 days before the first day of shipment for every
shipment there after.
Neither party to this contract
shall be liable to the other party for any delay in performing or failure to perform any of its obligations due to events of Force
Majeure including but not limited to war, blockade, revolution, riot, insurrection, civil commotion, strike, lockout, explosion,
fire, flood, ice, storm, tempest, earthquake, laws, rules or regulations, applicable sanction laws, including but not limited to
prohibitions on export or import and/or prohibitions applying to a nominated or carrying vessel or any other cause or causes whatsoever
beyond the reasonable control of either party whether or not similar to the causes enumerated above. Failure to deliver or to accept
delivery in whole or in part because of the occurrence of an event of Force Majeure shall not constitute a default hereunder or
subject either party to liability for any resulting loss or damage.
Upon the occurrence of any event
of Force Majeure, the party affected by the event of Force Majeure shall promptly notify the other party hereto in writing of such
event and shall specify in reasonable detail the facts constituting such event of Force Majeure. Where such notice is not given
within the time required, Force Majeure shall not justify the non-fulfillment of any obligations under this contract.
Both parties agree to use their
respective reasonable efforts to cure any event of Force Majeure to the extent that it is reasonably possible to do so, it being
understood that the settlement of strikes, lockouts, and any other industrial disputes shall be within the sole discretion of the
party asserting Force Majeure.
In the event of Force Majeure,
deliveries shall be suspended for the duration of such Force Majeure, but if such Force Majeure shall last more than 30 (thirty)
calendar days, the tonnage affected may be cancelled with immediate effect by the party not having declared Force Majeure by written
notice to the other party.
In the event that Force Majeure
causes only a partial reduction in the total quantity of material that the Seller is under an obligation to deliver hereunder,
the Seller shall allocate its available supplies of such material, if any, among any or all of its existing customers in a fair
and equitable manner.
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12.
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GOVERNING LAWS, RESOLUTION OF DISPUTES ETC.
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This agreement, including the
arbitration clause, shall be governed by, interpreted and construed in accordance with substantive New York State laws.
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12.2
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All disputes arising out of or in connection with this letter agreement, including any question
regarding its existence, validity or termination, shall be finally settled by arbitration under the Rules of Arbitration of the
International Chamber of Commerce and the U.S. Federal Arbitration Act, by three arbitrators appointed in accordance with the said
Rules. The seat or legal place of arbitration shall be New York, New York, USA. The language of the arbitration shall be English,
though testimony and documents may be submitted in other languages if accompanied by a translation. Judgment on the award may be
entered in any court having jurisdiction thereof. The parties waive irrevocably their right to any form of appeal, review or recourse
to any court or other judicial authority.
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12.3
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Arbitration not to interrupt performance
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Neither the commencement nor conduct
of arbitration will interrupt the Parties’ performance of their respective obligations under the Agreement nor affect any
of the time limits fixed in the Agreement. This is not the case if such performance is materially affected by the submission of
the matter in dispute to arbitration or by the result of the arbitration. The arbitration tribunal constituted to settle the matter
in dispute is empowered to determine whether performance is materially affected.
A Party may terminate this Agreement
if:
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(a)
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the other Party (defaulting party) commits any material breach of any of its obligations under
this Agreement and such breach continues unmediated (and for this purpose a breach will be deemed to be remedied by payment of
reasonable compensation where no other remedy is reasonably practicable) for a period of 7 Business Days after the service of a
notice by the non- defaulting Party requiring such breach to be remedied, or such longer period as may be specified in that notice;
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(b)
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the Parties agree to terminate this Agreement
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The termination of this Agreement
however caused shall be without prejudice to:
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(a)
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any obligations of the Parties which have accrued prior to that termination and which remain unsatisfied;
and
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(b)
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any obligations of the Parties which are expressed to continue after termination.
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In addition, clause 12 and clauses
14 to 19 inclusive and clauses 21 to 23 inclusive shall survive termination or expiry of this Agreement.
Unless otherwise specified all
notices, advices, consents and other communication (Communications) which are required to be or may be communicated by the Seller
to the Buyer or by the Buyer to the Seller under this Agreement shall be:
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(a)
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in writing and signed by a person duly authorized by the sender;
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(b)
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shall be delivered to the intended recipient by prepaid post (if posted to an address in another
country, by registered airmail) or by hand, email or fax to the address or fax number as per Details provided in this Agreement
or the address, email or fax number last notified by the intended recipient to the sender.
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Communications given in accordance
with this clause 14 shall be deemed to have been properly given and received by the addressee:
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(a)
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in the case of delivery in person, when delivered;
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(b)
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in the case of facsimile transmission, on receipt by the sender of a transmission control report
from the despatching machine showing the relevant number of pages and the correct destination fax machine number and indicating
that the transmission has been made without error; or
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(c)
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in the case of delivery by post, 7 Business Days after the date of posting (if posted to an address
in another country) or 2 Business Days after the date of posting (if posted to an address in the same country), but if the result
is that a Communication would be taken to be given or made on a day which is not a Business Day in the place to which the Communication
is sent or is later than 4pm (local time), it will be taken to have been duly given or made at the commencement of business on
the next Business Day in that place.
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14.3
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Notices sent by email
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Any Communication given or made
may be sent by email if:
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(a)
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the Communication is signed by a person duly authorized by the sender;
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(b)
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the Communication is sent to the email address last notified by the intended recipient to the sender;
and
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(c)
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the sender keeps an electronic and a printed copy of the Communication sent.
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(d)
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Signatures transmitted via email shall be deemed originals for the purposes thereof.
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The recipient of a Communication
sent under this clause must promptly acknowledge receipt of a Communication sent under this clause and must keep an electronic
and a printed copy of the Communication.
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14.4
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Receipt of notices sent by email
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A Communication sent under clause
14.3. will be taken to be duly given or made when receipt by the sender of an email acknowledgement from the recipient's information
system showing that the Communication has been delivered to the email address last notified by the intended recipient to the sender;
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15.
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ENTIRE AGREEMENT AND AMENDMENT
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This instrument contains the entire
agreement between the Parties in relation to the sale and purchase of Product hereby agreed and supersedes all prior negotiations,
understandings and agreements, whether written or oral in relation to that Product.
This Agreement shall not be modified,
amended, or supplemented except by an instrument in writing duly executed by the Parties to this Agreement.
Subject to clause 16.2., each
Party shall not disclose any information relating to this Agreement for a period of 1 (one) year from the signing hereof.
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16.2
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Permitted disclosure
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A Party may disclose information:
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(a)
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to any third party when it has obtained the fully informed written consent of the other Party;
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(b)
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to a Related Corporation of the disclosing Party and the officers and employees of that Related
Corporation provided the Related Corporation agrees to be bound by written confidentiality obligations no less onerous than those
contained in this clause 16;
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(c)
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to officers and employees of any of the Parties; and
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(d)
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(subject to clause 16.3.) if, and to the extent, required to do so under any necessarily applicably
legislation or under the rules or regulations of a recognized stock exchange applicable to the Party so disclosing or to a Related
Corporation of that Party, and
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(e)
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to its technical and professional advisers for the purposes of this Agreement or for the purposes
of advising the Party in relation to this Agreement, and
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(f)
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If it is so required for fulfillment of obligations under the contract.
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16.3
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Public Announcements
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(a)
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The Parties shall use their best endeavors to agree in advance the text of all public announcements
to be made in relation to this Agreement.
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(b)
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A Party shall not attribute any public announcement to the other Party without that Party's consent.
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16.4
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Clause to Operate after Termination
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The provisions of this clause
16 continue to bind a Party even after:
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(a)
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it ceases to be a Party to this Agreement; or
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(b)
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the Agreement terminates.
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16.5
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Officers and Employees
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Each of the Parties shall ensure
that:
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(a)
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its officers and employees;
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(b)
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the officers and employees of its Related Corporations; and
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(c)
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its independent consultants, contractors and technical and professional advisers, do not disclose
confidential information to third parties or improperly use that information for its own benefit.
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17.
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APPOINTMENT OF AGENTS
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Either Party may appoint an agent
or agents, at its cost, to carry out any and all of the functions required or authorised to be performed under this Agreement provided
they advise the other Party of the name of such agent and of the functions entrusted to it.
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17.2
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Parties still liable
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The appointment of any person
as agent by a Party under this clause 17 shall not relieve such Party of any of its obligations or responsibilities under this
Agreement.
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18.
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NO CONSEQUENTIAL LOSS
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Notwithstanding anything to the
contrary elsewhere in this Agreement, the Parties agree that no Party is in any circumstances liable in respect of any breach of
this Agreement to the other Party for:
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(a)
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any loss of profit, loss of revenue, loss of use, loss of contract, loss of goodwill, or increased
cost of working; or
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(b)
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any indirect or consequential loss.
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No failure to exercise nor any
delay in exercising any right, power or remedy under this Agreement operates as a waiver. A single or partial exercise or waiver
of the exercise of any right, power or remedy does not preclude any other or further exercise of that or any other right, power
or remedy. A waiver is not valid or binding on the Party granting that waiver unless made in writing.
Each Party shall do anything necessary
or desirable (including executing agreements and documents) to give full effect to this Agreement and the transactions contemplated
by it.
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21.
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SEVERABILITY OF PROVISIONS
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Any provision of this Agreement
that is prohibited or unenforceable in any jurisdiction is ineffective as to that jurisdiction to the extent of the prohibition
or unenforceability. That does not invalidate the remaining provisions of this Agreement nor affect the validity or enforceability
of that provision in any other jurisdiction.
This Agreement may be executed
in any number of counterparts. All counterparts together will be taken to constitute one instrument.
Only Buyer may at any time without
notice to Seller set off any liability of Seller to Buyer against any liability of Buyer to Seller (in either case howsoever arising
and whether any such liability is present or future, liquidated or unliquidated and irrespective of the currency of its denomination)
and may for such purpose convert or exchange any currency. Any exercise by Buyer of its rights under this clause shall be without
prejudice to any other rights or remedies available to Buyer under this contract or otherwise.
Buyer and Seller mutually warrant,
represent and undertake that they will comply with all applicable laws, rules and regulations including without limitation sanctions
and anti-corruption laws in performing this contract.
ACCEPTED:
Signed and stamped by:
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GLENCORE AG
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EL CAPITAN PRECIOUS METALS, INC.
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/s/ Christian Wolfensberger
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/s/ Charles Mottley
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by its duly authorized person
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by its duly authorized person
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Christian Wolfensberger
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Charles Mottley
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Division Head
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CEO & President
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Print Full Name
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Print Full Name
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Stamp: ........................................................................................
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Stamp: ........................................................................................
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Schedule 1
;
Base Quantity
The total Quantity to be made available for sale and purchase
under this Agreement is a life of mine offtake. Product will be delivered monthly. After the ramp up period, the typical shipment
will contain approximately
[***]
dmt +/- 10% in Buyer’s option.
Specifications
1) Name of commodity: Iron Ore
2) Origin of Material: USA
3) Chemical Composition, on dry basis, percentage by weight:
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Chemical (dry basis)
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Guaranteed (%)
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Limit
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Rejection (%)
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Fe
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[***]
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min
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[***]
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SiO
2
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[***]
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max
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[***]
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AI
2
O
3
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[***]
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max
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[***]
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P
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[***]
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max
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[***]
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S
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[***]
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max
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[***]
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Na2O + K2O
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[***]
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max
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[***]
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TiO2
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[***]
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max
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[***]
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MnO
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[***]
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max
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[***]
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As
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[***]
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max
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[***]
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H
2
O
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[***]
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max
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[***]
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4) Physical Specification:
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Size
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Guaranteed (%)
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Limit
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Rejection (%)
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Above 7mm
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[***]
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max
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[***]
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Below 2mm
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[***]
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max
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[***]
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Buyer has the option to reject the cargo at any point if the chemical
composition or sizing of any of the elements exceeds its rejection %.
If the cargo contains any deleterious and/or hazardous elements
rendering the material unsafe for use or unsaleable to an end user, then Buyer has the right to cancel and terminate the contract.
Any cost associated with or pursuant to this clause shall be for seller’s account.
Pricing
Index CFR
:
Average quotes of the Platts 62.0% FE CFR China Index during the
QP
Quotation Period (“QP”)
:
The QP will be determined based on the exact sailing date of each
shipment, as stated in the Bill of Lading. The month in which the Bill of Lading falls will be considered “M”. Buyer
will declare the QP of M or M+5 in the month M+3.
Buyer Discount
:
[***]
% on CFR value of the product
Formula
:
(Index CFR during the QP) – Buyer Discount +/- quality adjustments
(premium/penalties depending on the final analysis of material, as described in the analysis clauses)
For example, if
:
The Platts 62.0% average during the QP = $134.00/dmt (21-Oct-13)
Actual Fe for the cargo = 62.00%
All deterrent elements equal the Guaranteed levels
then the price received by the Buyer would be
$134.00–
[***]
= $
[***]
Payment Terms, Freight Rate, Loading Rate, and Turn Time
CFR Discharge Port Reference Price for Product, Turn Time
and Load Rate are set out below.
Product price and determinant for product price set out in
the following two tables:
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CFR, Main Ports China
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Payment Terms – Letter of Credit
|
LC based on the provisional CFR price, covering
[***]
% payment against presentation of shipping documents
|
|
Payment Terms -
[***]
% balance
|
Payment
of
[***]
% balance will be made
after all CIQ details are known and according to
Weighting / Sampling / Analysis sections as described in Sections 8 and 9 of this Contract
|
Provisional Price
:
[(Index CFR of the last available quote before the LC opening date)
– Buyer
Discount +/- quality adjustments (premium/penalties depending on
the final analysis
of material, as described in the analysis clauses)]
|
CFR, Main Ports China
|
|
Discharge Rate (WMT PWWD SHINC) (per weather
working day, Sunday and Holidays included)
|
20,000 (24 Hour)
|
|
Discharge
Port Turn Time (Hours)
|
12
|
|
Demurrage Rate (US$/day)
|
Demurrage cap: as per charter
party pdpr/hdltsbe
|
|
Despatch
|
Half of demurrage rate
|
Demurrage shall be paid by Seller to Buyer for all time
in excess of allowed laytime and despatch at half the demurrage rate shall be paid by Buyer to Seller for all laytime saved in
discharging
Premium / Penalties:
Chemical Composition:
A) Fe Content:
|
|
Penalty/Bonus Specification
(Percentage by weight)
|
Price Adjustments
(Fractions Pro-rata)
|
|
Iron (Fe)
|
Greater than Guaranteed
|
The base CFR price shall be increased by a
single Fe:Price pro rata adjustment in
USD/DMTU for each 1% of Fe above
Guaranteed, fractions pro-rata.
|
|
|
Less than Guaranteed
|
The base CFR price shall be decreased by a
double Fe:Price pro rata adjustment in
USD/DMTU for each 1% of Fe below
Guaranteed, fractions pro-rata
|
B)
For other elements
:
|
|
i)
|
For excess Silica (SiO2): At the rate of US$
[***]
PDMT for silica levels above Guaranteed, fractions pro-rata.
|
|
|
ii)
|
For excess Alumina (Al2O3): At the rate of US$
[***]
PDMT for each 1.00% in excess of Guaranteed, fractions pro-rata.
|
|
|
iii)
|
For excess Phosphorus (P): At the rate of US$
[***]
PDMT for each 0.01% in excess of Guaranteed, fractions pro-rata.
|
|
|
iv)
|
For excess Sulphur (S): At the rate of US$
[***]
PDMT for each 0.01 % in excess of Guaranteed, fractions pro-rata.
|
|
|
iv)
|
For excess Potassium (K2O) + Sodium Oxide (Na2O): At the rate of US$
[***]
PDMT for each 0.01 % in excess of Guaranteed,
fractions pro-rata.
|
|
|
iv)
|
For excess Titanium Dioxide (TiO2): At the rate of US$
[***]
PDMT for each 0.01 % in excess of Guaranteed, fractions
pro-rata.
|
C)
Size Penalty (Percentage by weight)
:
|
|
i)
|
For each 1% of material in excess of the Guaranteed % above 3.000 mm, the price to be decreased by USD
[***]
/WMT. Fractions
pro rata.
|
|
|
ii)
|
For each 1% of material in excess of the Guaranteed % below 1.000 mm, the price to be decreased by USD
[***]
/WMT. Fractions
pro rata.
|
Schedule 2
: Discharging terms and conditions
(i) The
Buyer shall indemnify the Seller for any liability, penalty or other costs resulting from the Buyer's failure to provide such
safe berth and safe port. The Buyer will ensure that the nominated berth is free and accessible at all times by the vessel for
delivery of Product. The Buyer shall make all arrangements to receive the Product from the vessel on her arrival alongside the
nominated berth.
|
|
1.2
|
Agency, Port charges, dues and taxes
|
(a) Vessels are to be consigned to the Seller's agent
at the Discharge Port. Seller will nominate and appoint the agent based on a recommendation from Buyer, such recommendation not
to be unreasonably denied. The Seller is only accountable for all port charges associated with bringing the vessel alongside the
discharge berth.
(b) Any taxes, dues or other charges levied against
the cargo at discharge port shall be for the Buyer's account. All such charges shall be paid promptly by the Buyer such that the
Buyer is in a position to take delivery of the cargo without delay.
(a) Vessel to tender Notice of Readiness (NOR). WIFPON,
WCCON, WIPON, WIBON upon arrival at loadport or its official anchorage respective waiting area, during ATDNSHINC.
|
|
(a)
|
Laytime shall commence counting following the number of hours detailed as Turn Time in Schedule 1 after a valid Notice of Readiness
has been tendered or when loading commences, whichever occurs first.
|
|
|
(b)
|
Laytime shall cease on completion of loading.
|
|
|
(d)
|
Time used in shifting directly between berths at the Seller's request or delays to loading due to disruptions in the Load Ports
operations shall count as laytime.
|
|
|
(e)
|
Any time lost by the vessel in obtaining gas free clearance, either directly or consequentially, shall be for the Seller's
account.
|
|
|
(f)
|
Force Majeure or bad weather shall not count as laytime.
|
|
|
(g)
|
Laytime permitted at the Discharge Port shall be calculated on bill of lading quantity.
|
The discharge rate at the Discharging
Port applicable in this Agreement per weather working day of twenty four (24) consecutive hours, Saturdays, Sundays and holidays
inclusive will be as provided in Schedule 1.
|
|
1.8
|
Demurrage/Detention/Despatch rates
|
The Buyer and the Seller shall
agree despatch and demurrage calculations following departure of the vessel from the Discharge Port. Demurrage or dispatch money
shall be paid by seller or buyer, respectively, within ten (10) days from mutual agreement on amount. Any additional demurrage
incurred at the Discharge Port due to Buyer not opening a Letter of Credit in accordance with the terms of this Agreement shall
be for the Buyer's account.
Buyer becomes only liable
for detention if discharge is delayed due to pending import formalities, dues, taxes and/or levies with local and/or government
authorities. Any other reason whatever nature can not be considered as detention.
The demurrage rate shall be as
per Charter Party per 24 hour day. Demurrage calculated per day and pro rata for part of a day, for all time used in excess of
allowed laytime and shall receive despatch being earned at one half the rate of demurrage per day or pro rata for part of a day
for all time saved of allowed laytime.
|
|
1.9
|
Vessel nomination procedure
|
Seller shall nominate a vessel
within 15 days from the LC issuance date. Seller will nominate suitable vessel not older than 22 years with full main details to
Seller at least 10 days prior to the first day of laycan. Buyer to grant vessel acceptance within 24 hours satshex after receipt
of corresponding vessel nomination. Performing vessel to be fully P+I club covered, ISPS + ISM + ITF or equivalent compliant and
certified and to be so maintained for the duration of the voyage.
Seller has the right to substitute
the vessel provided that the substituting vessel meets theä loading restrictions.
The International Code for the
Security of Ships and of Port Facilities and the relevant amendments to Chapter XI of SOLAS (the “ISPS Code”) as per
BIMCO being an integrated part for the shipment under this contract.
Seller warrants that they and/or
any other owner, disponent owner in the charter chain and the vessel are not and have not been listed on the United States Department
of the Treasury OFAC SDN list as available on the link:
http://www.ustreas.gov/offices/enforcement/ofac/sdn/
on the day vessel is nominated
to Buyer.
Seller warrants that any vessel
which they nominate in connection with this contract complies with the requirements of the ISPS Code and/or the US Maritime Transportation
Security Act 2002 ("MTSA"). The Seller warrants that any port at which the goods sold under this contract are or are
intended to be loaded complies with the requirements of the ISPS Code and/or MTSA (if applicable).
Seller shall be responsible for
any and all costs and/or expenses and/or losses and/or damages and/or delay arising out of or in connection with the failure of
the vessel or its owners or charterers to comply with the requirements of the ISPS Code or, if applicable, MTSA and any time thereby
lost shall not count as used laytime or time on demurrage. Seller shall be responsible for any and all costs and/or expenses and/or
losses and/or damages and/or delay arising out of or in connection with any failure by the loadport to comply with the requirements
of the ISPS Code and/or MTSA and any time thereby lost shall count as used laytime or time on demurrage.
|
|
1.11
|
Other terms and conditions not described herein to be as per relevant Stemmor or Gencon C/P terms.
|
|
|
1.12
|
Seller guarantees that cargo provided is safe for transport by sea according to the IMSBC code. Seller to provide certificates
stating cargo is within the TML (Transportable Moisture Limit) if required by Master prior to loading. If required, this TML and
FMP (Flow Moisture Point) analysis must be performed by the relevant P&I Club appointed inspectors. If cargo is thereby deemed
not suitable for shipment any delays or related costs, direct or indirect are to be for Seller's account.
|
|
|
1.13
|
Letter of Indemnity (LOI)
|
In case original Bill of
Ladings are not available at Discharging Port at the time of vessel arrival, Seller guarantees to discharge cargo against Letter
of Indemnity (LOI) issued by Buyer. Such LOI will be issued in favor of the Seller on exactly the same terms as the standard P&I
Club format the owner of the vessel requires from Seller.
Schedule 3
: Definitions and interpretation
The following definitions apply unless the context requires
otherwise:
Agreement
means this agreement, as may be amended
from time to time.
Amount Due
has the meaning given in clause 10.3.
Base Quantity
has the meaning given in clause 2.1.
Business Day
means days excluding Saturdays, Sundays,
public holidays and banking holidays in Singapore
Certificate of Analysis
has the meaning given in clause
9.1. Certificate of Weight has the meaning given in clause 8.1. CFR has the meaning ascribed to it in Incoterms.
CIQ
means the Entry-Exit inspection and Quarantine
of PRC.
Communications
has the meaning given in clause 14.1.
Delivered Quantity
means total the amount of Product
delivered under this Agreement as reflected in the Bills of Lading.
Discharge Port
means a port of PRC.
DMT
means a tonne on a dry basis.
dollars and cents
mean respectively dollars and cents
in lawful currency of the United States of America.
Draft
(when fully loaded) means,
as the context requires:
(a) in respect of a vessel prior to completion of loading, the
draft which that vessel would have if the quantity and type of ore scheduled to be loaded into it were loaded into it; or
(b) in respect of a vessel after completion of loading, the draft of the vessel as determined
by draft survey. dry basis when applied to Product means Product dried at 105s Celsius Expected Value has the meaning given in
clause 11.1.
dry basis
when applied to Product means Product dried
at 105s Celsius
Force Majeure Event
means an event or cause specified
in clause 12.1.
Incoterms
means Incoterms 2010 published by ICC Publishing
SA
LIBOR Rate
means the rate for deposits in dollars
for a period of three (3) months which appears on Reuters page Libor01 at or about 11.00am London time on the relevant day, unless
no such rate is available and displayed, in which case the LIBOR Rate shall be a rate which is an average (mean) of the LIBOR
Rate for the preceding week.
M
means the value of an index for the average
of a calendar month during the bill of lading. For example, if the bill of lading for a cargo is December 20th. Then “M”
would be December.
M+5
means the value of an index for the average of
a calendar month five calendar months after the bill of lading. For example, if the bill of lading for a cargo is December 20th.
Then “M” would be December and “M+5” would be May.
Natural basis
when applied to Product means Product
in its natural or wet state
Notice of Readiness
means a notice of readiness to
load a vessel.
Party
means a party to this Agreement.
Place of Loading
means the relevant place of loading
within the Loading Port.
PRC
means the People's Republic of China.
QP
means Quotational Period
Specifications
has the meaning given in clause 3.
Tonne
means a metric ton equaling 1,000 kilograms.
Wet basis
when applied to Product means Product in
its natural or wet state.
WMT
means a tonne on a natural basis.
