NOTICE: The text below was created automatically and may contain errors and differences from the contract's original PDF file. Learn more here





company duly incorporaled in lhe DRC, with its registered office at 419.

Kamanyola Avenue. P O Box 450, Lubumbashi, DRC (“Gecamines”);







2.1 The head notes io lhe clauses of this Agreement are inserted for

référence purposes oniy and shall in no way govern or affect the

interprétation hereof.

2.2 Unless inconsislent with lhe context, the expressions set forth below.

whether used as a verb or a noua, shall bear the following meanings:

O / z/Z1

2.2.1 “the Act” means Act N° 81 - 013 of 2 April 1981 on

general législation pertaining to mines and

hydrocarbons in the DRC;

2.2.2 “the agreement / this means the Mining Convention and Joint

Agreement/lhe Venture Agreement set out in this document

Convention" and includes ail appendices or other

annexure hereto;

2.2.3 “Auditor" means the auditors of KMC for the time


2.2.4 “the Board" means the hoard of dircctor KMC as

constituted from time to time;

2.2.5 "Business Day" means any day other than a Saturday,

Sunday or an official public holiday in the


2.2.6 “KMC" means the Joint Venture Company new

company to be incorporatcd in the DRC, as

contemplated in clause 5 below.

•Commercialisation" means the marketing and sale of extracted

minerais, including cobalt, copper and othcr

mêlais, in any format, including crushed,

concentrated, refined, metallurgically

processcd or any on the world market;

2.2.8 “Concession Area" means the demarcated area outlined in red on

the plan attached hereto as Annexure “A”

initialled by the parties for identification

purposes, which area includes ail the

Concessions, Quarries and Mines excluding


2.2.9 “the Concessions” means Concessions identified on Annexure

“K” to this Agreement , and any other

Mining and/or Quarry Rights, which entail

ail rights in terms of a mining permit or

mining tille granted under the provisions of

the Act, to mine Minerais in the area in

 respect whereof the Concession is granted;

2.2.10 “Dollars or $” Means United States Dollars, as the official

currency of the United States of America on

the Signature Date;

2.2.11 “DRC/the DRC” Means the sovereign country known as the

Démocratie Republic of the Congo.

2.2.12 “Exploration” the activity hy which a party intends to

search for minerai deposits by way of

exploration works which disturb the surface

of the earth;

2.2.13 “Gecamines” Means the party defined in clause 1.1 above;

2.2.14 “TREMALT Means the party deftned in clause 1.2 above;


2.2.15 “Management Team” Means those members of KMC personnel

front time to time contracted or employed or

appointed by KMC who are vested with the

day to day management of KMC;

2.2.16 “Metals” Means metallurgically proccssed minerais;

2.2.17 “Minerals/Mineral means any minerai substance which is the

Deposits/Ore subject of any of the Concessions or Quarry

Deposits” Rights transferred to KMC pursuant to this

Agreemcnt, occurring naturally in or on or

undernealh the earth, in or under water,

which minerai substance may hâve value and

which has been formed by or subjected to

some geological process, excluding water, in

any format or dérivative;

2.2.18 “the Minerai Rights / shall include but not be limitcd to ail

the Mining Titles” reconnaissance, prospecting, exploration,

rétention and mining licences, permissions

and Concessions to Minerais such as Coopcr,

- Cobalt Deposits and Quarry Substances,

issued by the DRC authorities (or its

predecessors) under previous, pfeyailing or


the Act;

2.2.19 “the Mining Zone / means the entire geographical area wherein

the Mines” KMC may conduct its exploration, research

and mining operations in the Concession

Area, being an area duly surveyed, with its

perimeter boundaries demarcated and

beaconed, as more fully illustrated in

Annexure “A” hereto, comprising no less

than the individual Minerai Deposits and

quarries set in Annexure “L” to this


2.2.20 “Mining/Mining means the activity by which, from a Minerai

Operations” Deposit sufficiently explored, by means of

either opencast or surface or underground

works, to an unlimited depth, a party extracts

Minerais, refînes same, and transforms it into

any dérivative or format thereof with value,

where after the Minerais are commercialised;

2.2.21 “Non-Project means any production arising from mining or

Production” exploitation or processing of Minerais other

than in terms of the Mining Operations

contemplated herein;

2.2.22 “the Project” means the joint venture Project hereby

undertaken by the parties comprising of the

conception, exploration, development

exploitation and mining operations

undertaken in the Concession Area,

including the marketing and

commercialisation of the extracted Metals;

2.2.23 “the Signature Date” the date on which the last party to sign this

Agreement, signs it;

2.2.24 “Tailings” means the discards from the processing of

minerais located within the Conception Area

and identified in Annexure “F" hereto;

2.2.25 “year means a calendar year;

2.3. Unless inconsistent with the context, an expression which dénotés :

2.3.1 Any gender includes the other gender;

2.3.2 A natural person includes an artificial person and vice versa;

2.3.3. The singular includes the plural and vice versa

2.4. Any annexure and schedules to this Agreement form an intégral part

hereof and words and expression defined in this Agreement shall,

unless the context otherwise requires, the meaning in such annexures

and schedules, and définitions in this clause 2 must inter alia be

interpreted in accordance with any substantive provisions contained

in this “Interprétation” clause.

2.5 Any term or word utilized in this Agreement shall, unless expressly

or contextually stated otherwise, bear the meaning ascribed thereto

in the Act.


3.1 Gecamines, a State company with an industrial and commercial

character and vested with legal personality, the entire share capital

whereof is 100 % (one hundrcd per centum) owned by the DRC, is

the registered holder of respectively ail the Minerai Rights, Mining

Titles, Concessions and Quarry Rights in the Mining Zone, and

owner of the Processing Equipment defined above.

3.2 TREMALT LIMITED is a private company registered in Switzerland

with its headquarters located 6 Boulevard George Favon in Geneva.

3.3 TREMALT LIMITED wishes to conclude a Joint Venture agreement

with Gecamines for the incorporation of K.MC, whereby the Project

hereby constituted will enable K.MC to mine and process the

Minerais found in the Mining Zone, on the terms and conditions

hercin contained, to the mulual benefit of the parties hereto.

3.4 It is further recorded thaï :

3.4.1 The proposed exploitation of the Minerai Rights within the Mining

Zone will fall within the framework. of DRC’s policy topromote the


value of the counlry’s minerai resources, train domestic manpower,

create jobs, transfer technology and elevate the population’s standard

of living;

3.4.2 The execution of the proposed mining Project will require a large

investment and substantial foreign financing will be necessary to

complément KMC’s share capital;

3.4.3 Considering the risks involved in such a mining project, the

procurement of foreign loans will be impossible unless, during the

investment period, the Project generates enough net profits from

operations to ensure the repayment of these loans;

3.4.4 The complète success of the Project will require stable and durable

legal, fiscal and économie conditions under which KMC can conduct

its operations;

3.4.5 The Project will resuit in greater économie activity and employaient

in the concession Area and its surrounding régions, as well as large

foreign export revenue for DRC;

3.5. TREMALT LIMITED and Gecamines wish to exploit Minerais in the

Mining Zone by way of a joint shareholding in KMC, based upon the

joint venture relationship provided for herein.


This Agreement is conceived as and shall constitute a joint venture

between TREMALT LIMITED and Gecamines, with effect from the

Signature Date, subject however in ail respects to the terms and

conditions and limitations hereof, with the purpose of profitable

exploitation and processing of Minerais extracted from the Mining

Zone, and each shall accordingly act as a joint venturer towards the

other with the sanie good faith upon the terms of this Agreement and

subjcct to the conditions hereof, provided however that nothing

herein contained shall be deemed to constitute a partnership between

the parties, or create any several liability, and the Parties hereto

accordingly reciprocally indemnify each other against any daims

which may be made against the one in relation to the obligations or

liabilities of the other, including obligations which were incurred

prior to --- or after the Signature Date.


5.1 TREMALT LIMITED and Gecamines shall endeavour to procure the

incorporation as soon as possible of a company being a “société

privée à responsabilité limitée” to be known as KABAMBANKOLA


to seule the nature, constitution, initial capitalization, share

structure, notarial status documents, and ail other matters affecting

the registration, formation and incorporation of KMC.

5.2.1 Upon incorporation of KMC, or as soon as reasonably possible

thereafter, KMC shall procure the issue and allotment to respectively

Gecamines of 20 % (twenty percent) of the issued share capital of

KMC, and to TREMALT LIMITED of 80 % (eighty percent) of

KMC's issued share capital. Gecamines shall obtain its shareholding

free of any considération additional to what is provided for in this

Agreement. The Auditors shall be obliged to ensure that the formai

share registers of KMC contain ail relevant information in order to

accurately reflect the sharcholdings.

5.2.2 TREMALT LIMITED shall, during the subsistence of this

Agreement, notwithstanding anything to the contrary contained in

the founding documents or other constitutional documents of KMC,

be at liberty to sell, and to offer for sale, its shareholding (or any

portion thereof) in KMC to any third party of its élection.

5.2.3 At any stage after incorporation of KMC, Gecamines and TREMALT

LIMITED, as KMC's sole sharehoiders, may at their discrétion

further define their rclationship by of a sharehoiders agreement,

which must be signed by both parties.


6.1 Gecamines warrants and undertakes in favour of KMC, that as the

Signature Date hereof, and furthermorc at the date of cession of the

Minerai Right and Concessions to KMC, as contemplated herein :

6.1.1 In respect of ail the Minerai Rights and each and ail of the

Concessions : Ail laws applicable thereto and to operations in terms thereof hâve

been complied with in ail respects by Gecamines^----jf


6.1.1 .2 Gecamines is not in breach of any of its obligations; No threats of cancellation, termination, withdrawal, invalidity,

unenforceability, or non-compliance hâve been received or rumoured

in respect thereof; Ail minimum work lawfully required to be performed by Gecamines

has been performed;

6.1.1 .5 Gecamines has incurred ail minimum legally required expenditure; Gecamines has ail rights, titles, permits and other contractual and

statutory right and authorizations in respect of the Mining Zone in

order lo carry on prospecting, development and mining operations in

respect of Minerais in the Mining Zone; The Minerai Rights and Concessions are valid and enforceable on

the Signature Date and shall furthermore be valid for a period

terminating not earlier lhan 20 (twenty) years after Signature Date,

which validity is extendable thereafter for either the life of the

Mines or a further period of 10 (ten) years, whichever of the 2 (two)

latter periods are the shorter. The Minerais Rights and Concessions confer on the holder thereof

the sole and exclusive right to mine, or to acquire the tight or little to

mine, for the specified Minerais in the Concession Area;

6.1.2 Gecamines do not hold and during the subsistence of this Agreement,

in respect of the Mining Zone and Concession Area, will hold no

other rights lo prospect or mine, or rights ancillary to prospecting or

mining, or options or rights of first refusai in respect thereof;

6.1.3 Gecamines is not aware of any impediments to the full

implémentation and continuation of this Agreement;

6.1.4 Gecamines in the sole titleholder and owner of the Tailings, which

are hereby transferred lo KMC in unencumbered form.

6.1.5 Gecamines is the sole holder of respectively the Minerai Rights and

Ore Deposits in the Concession Area and of the Mines in the Mining


r\ /)/L

6.1.6 Should lhe Minerai Rights or the Concessions expire while this

Agreement is still in force, Gecamines shall timeously provide for

the renewal or for the grant of one or more new Concessions with

identical terms and conditions in accordance with Article 24 of the

Act, for the duration of this Agreement and any renewal thereof.

Gecamines warrants thaï the Project is sufficient, as a matter of law,

for purpose of renewal and/or granting anew such Minerai Rights.

Gecamines shall furthermore be obliged to cede additional

exploitable Concessions lo KMC in the eventuality of the herein

defined Concessions being depleted prior to expiry of this


6.1.7. The Minerai Right and Concessions are not encumbered by any

duties, obligations or constraints towards third parties and

Gecamines can transfer the Minerai Right and Concessions


6.1.8 Gecamines is the exclusive titleholder, owner and beneficiary in and

to the Processing Equipment, which it warrants to be free of any

obligations towards third parties, and is entitled to grant valid

Option to lease ail facilitics of the Processing Equipment to KMC

for the duration of this Agreement. Accordingly, as recorded in

clause 4 abovc, Gecamines hereby identifies KMC against any

liabilities or claims, of whatsoever nature, made by third parties at

any stage prior to or the Signature Date, in respect of debts or

obligations or any liabilities incurred as a resuit of the direct or

indirect activities or failures of Gecamines.

6.1.9 Gecamines possesses ail rights to use the surface assets in the

Concession Area, naturally occurring or man-made, and ail

infrastructural improvemcnls necessary to operate in the Mining

Zone, and Gecamines will for lhe duration of this Agreement grant

KMC such unrestricted access and usage thereto (inclusive of rail,

water, electricity, roads, airports and airspace);

6.1.10 No non-contracting party lias any right to any part of the Processing

Equipment or to the Minerais, Metals or concentrâtes derived there

from. \\


6.1.11 Gecamines warrants and déclarés that it has completed ail feasibility

studies, in respect of thc Concessions, the Minera! Deposits and the

Mines, which lawfully require completion, prior to the Signature


6.1.12 Gecainines hereby waives ail rights to dividends in the favour of the

DRC's Government and shall hâve no entitlement to dividends

declared by K.MC at any stage, either during the currency or after

expiry of this Agrcement.

Dividends are regulated by a profit sharing agreement executed by

I TREMALT LIMITED with DRC Government.

7.1 TREMALT LIMITED and Gecamines, stipulate, déclaré and warrant

I each to the other, that :

7.1.1 It is validly constituted company or other entity legal personality

according to the laws in effect at the place of its incorporation, it is

duly organized and exists validly according to those laws and it has

the power to exercise its activities in the jurisdictions wherein it



7.1.2 It has full power and compétence to exercise its activities, to enter

into this Agreement, as well as to execute any and ail obligations

imposed upon it in terms of this Agreement;

7.1.3 It has obtained ail resolutions or other compulsory authorizations

needed in order to sign, remit and execute this Agreement and any

and ail agreements or obligatory acts envisaged in this Agreement;

furthermore such signature, remittance and execution;

7.1 .3.1 Do not contradict or violate any of the provisions of its statutes, any

decision by shareholders or administrators, any agreement,

stipulation’ or undertaking whatsoever to which it is a party of by

which it is bound, and do not creatc any charge on its assets by

virtue of those same Acts; and

3 Do not violate any applicable law in the jurisdiction where it is

I incorporated;



7.2 This Agreement is validly signed and remitted by itself and is in

accordance with its terms, valid, compulsory and exécutable on

each’s part.


8.1 On the Signature Date, to the extent to which it shall not already

hâve donc so, Gecamines shall deliver to KMC, ail feasibility

studies, geological, geophysical, geobotanical, geochemical, photo

geological, aero magnetic, assay and analysis information and any

other relevant data (including drilling samples and interprétation of

such data) in its possession or control relating to ail prospecting and

rnining activities carried on by Gecamines in the Concession Area

prior to the Signature Date.

8.2 Within 7 (seven) days after either the incorporation of KMC or the

Signature Date, whichever is the later, Gecamines shall cede and

assign to KMC the Tailings, Minerai Rights and the Concessions and

any and ail other relevant rights held by Gecamines in respect of the

Mining Zone.

8.3 KMC shall be entitled at any time to amcnd or extend or procure

replacements or substitutes for ail or any of the Minerai Rights or

the Concessions, or to exercise ail or any of the rights therein

contemplated, including but not limited to. rights to acquire Mining

Rights or Mining Tilles. Upon the lawful termination or Final expiry

of this Agreement, KMC shall bc obliged to cede and transfer to

Gecamines, or its nominee, ail Minerai Rights and Concessions

obtained by it in terms of this Agreement, to vacate and cancel the

leases in respect of Processing Equipment (which shall include ail

improvements or réhabilitation lhereof made during the currency of

this Agreement), and to surrender any and ail rights to any unused

portions of the Tailings.

8.4 The transfer of the Minerai Rights and Concessions will be

undertaken in such a way that KMC will hâve at its disposai ail plant

and equipment, waste dumps, slag dumps, Tailings dams and ail

other infrastructure of the Mining Zone, provided that KMC shall not

assume any liabilities associated with these assets arising prior to the

Signature Date. « x'' '



9.1 Shituru Plant remains the propcrty of Gecamines.

9.2 Gecamines shall provide unhindered access to KMC in order to

proccss ils concentrate according to a toll treatment agreement to be

9.3 agreed without delay.

To ensure efficient and effective use of the plant the two parties

shall set up a joint technical collaboration team in Shituru Plant.



10.1 Gecamines shall not, during the period of this Agreement, grant any rights to any

third party in respect of the Concession Area or the Mining Zone or in any other

10.2 way relevant to this Project, without first having offered such rights to KMC.

Nothing in this Agreement shall disentitle TREMALT LIMITED from carrying

out any prospecting or mining operations independently of Gecamines or KMC

anywhere in DRC, subject to lawfully required permissions from the DRC, and

TREMALT LIMITED shall be under no obligation whatsoever, save as expressly

10.3 provided for in this Agreement, to offer any such prospecting or mining

propositions or any rights thereto to Gecamines or to KMC.

KMC shall be entitled at any time after its formai incorporation to enter into a

contract with TREMALT LIMITED or Gecamines in ternis whereof one or more

or ail aspects and functions of the Mining Operations of the Project may be

11. fulfilled by TREMALT LIMITED or Gecamines. This contract may be in the

form of either a minera! lease or any other similar agreement.


11.1 From the Signature Date:

1 1.1.1 TREMALT LIMITED will be subject to a 6 (six) month period in order to

establish, with the obligatory assistance of the other parties hereto as and when

required, in the name of and for the account of KMC, the necessary financing

required to conduct the mining operations of the Project. Substantive mining

11.1.2 operations in respect of at least 3 (three) of the Minerai Deposits listed in

Annexure “L” hereto, will hâve to commence within a further 3 (three) months

after the expiry of the aforementioned 6 (six) month period;

Ail financing for the Project shall be procured by means of advanccs cffected by

TREMALT LIMITED and/or by loans.


Gecamines shall hâve no responsibilities in respect of any of the operational

financing requirements of the Project. It shall, however, always be accurately

infomied of the Financial position of KMC and the Mining Operations, by virtue

of its seat on the board of directors of KMC. Gecamines may fiartherEg-requircd,


in its capacity as a Shareholder of KMC, to co-operate in the procurement or

establishment of bank or other guarantees necessary for financing in accordance

with clause 13.2 below.

11.2 Gecamines hereby formally consents to TREMALT LIMITED and KMC

obtaining part or ail of the financing for the Project from international agencies

and/or banks and/or other suitable entities or persons, subject in ail respects to the

provisions of clause 13.1.2 above. TREMALT LIMITED is hereby authorised to

act at its own reasonable discrétion in this regard. Gecamines shall co-operate

fully with TREMALT LIMITED and/or KMC to facilitate the procurement of

such financing, particularly by signing any documents and by giving ail

assurances which may reasonably be required to obtain such financing, though

without any financial and legal obligations on its part.


GECAMINES, TREMALT LIMITED and. KMC will settle immediatcly with the

DRC Government a spécifie convention covering the purpose of the présent

agreement and goveming key issues of the intended operations such as:

- Social obligations

- Calculation of net taxable income

- Customs duties

- Fiscal and other duties exonérations

- Samples and exports

- Work permits and visas

- Authority for security and means of communications

- Central bank

- Arbitrations

- Performance

- More favourable provisions

- Free circulation

- Power and water, etc..


13.1 Accounting Records

13.1.1 The accounting records and financial statements of KMC shall be drawn up in

accordance with the provisions of the DRC accounting législation and practice.

Such records shall also takc into account and respect the accounting rules and

procedures usually adhered to by the international mining industry;

13.1.2 KMC's accounting records and financial statements shall be drawn up in United

State Dollars and may be convcrted to Congolese Francs simultaneously with

finalization of the required audit procedures annually, by the utilization of the

official rate of exchange as effective on the final business day of the exercise


13.2 Annual Audit


13.2.1 The Auditors shall perform an annual audit of KMC’s accounts in the manner and

in accordance with the international régulations pertaining to mining companies;

13.2.2 Each year, within 3 (three) months of receiving the Auditors’ report, KMC shall

send the report, together with its comments and observations, to its shareholders.


In accordance with the provisions of clause 12 above, KMC’s products shall be

sold in the United States Dollar currency or other foreign currencies and both of

these parties shall each hâve the right to dispose freely of the retums from these



15.1 KMC may open, hold and operate one or more foreign accounts abroad in foreign

currency with one or more reputable international banks it has selected and which

are approved of by the Centra) Bank of the DRC. The transactions made on these

accounts wi 11 include, without limitation:

15.1.1 the payments made by the shareholders of KMC

15.1.2 the calls made by KMC on the loans granted by its financial backcrs;

15.1.3 the sale proceeds, pursuant to clauses 12 and 14 above;

15.1.4 the proceeds from other transfers and possible commercial or financial dealings.

15.2 From these accounts will be deducted the amounts necessary for:

15.2.1 the payment of supplies and contracts for the construction and investment of the


15.2.2 the payment of salaries and rémunérations owed in foreign cunency;

15.2.3 the payment for the purchase of goods, supplies and services necessary for the

normal operation of the exploitations;

15.2.4 covering the operating costs in the DRC;

15.2.5 the rédemption of debt;

15.2.6 the payment of management and other fees;

15.2.7 the payment of dividends;

15.2.8 the establishment of any reserve necessary to covcr future costs and risks;

15.2.9 the payment of the liquidation bonus in favour of the shareholders;



15.2.10 the repayaient of loans and the payaient of dividends, consultant fees and other

payments in favour of KMC shareholders.


16.1 Personnel

16.1.1 KMC shall forthwith after exercising the Options be contractually responsible for

payment of the salaries of ail personnel members employed by Gecamines on date

of signature of the Agreement (“the employées”), provided however that such

employées are required and will be directly involved in the Project undertaken in

ternis of the Convention. To this end, Gecamines will supply a list of relevant

employées to KMC who shall be able to verify the correctness thereof prior to

incurring any contractual liabilities. However, ail other past employment benefits

of the employées obtained from Gecamines shall remain the exclusive

responsibility of Gecamines, for instance'pension and medical aid benefits.

Accordingly new employer/employee relationship will be established between the

employées and either KMC.

16.1.2 Furthermore al) other responsibilities and administrative aspects of employment in

respect of the employées shall remain the exclusive responsibility of KMC, and e

monthly Financial rémunérations pertaining to employées will be transferred to

KMC upon conclusive vérification of the correctness of the list of employées

subséquent to the Options having been exercised.

16.1.3 Additionally, if any employées are found to be unsuitable for their intended

position, Gecamines will hâve to replace such employées, to the complété

satisfaction of KMC, failing which the latter 2 (two) parties will be able to replace


16.1.4 There are no restriefions on the number of expatriâtes KMC may appoint to the

Project, neither are there restrictions on the positions which these expatriâtes can


16.1.5 Board control and Managerial control at KMC will be exercised by the majority

shareholder, TREMALT LIMITED. Notwithstanding their respective

shareholdings, TREMALT LIMITED is allowcd to appoint 5 (five) directors to

the board of KMC for every 2 (two) directors that Gecamines may appoint. In

considération of the control it has at board level, TREMALT LIMITED shall also

be able to control the appointment of the entire Management Team of KMC.

16.1.6 Subject to the provisions of clauses 18.1.1 to 18.1.5 above and of the Labour Law

of DRC, KMC shall be free to select, recruit, employ and dismiss the employées in

accordance with the relevant régulations, provided that the consent of Gecamines

must always First be obtained for the instant dismissal of any employée

contractually utilised by KMC in respect of the Project.


16.2.1 TREMALT LIMITED undertakes to implement a policy of technology transfer,

subject to normal confidentiality provisions. This transfer and related training in

z*z» 5?


respect of extraction of minerais and metallurgical processing of minerais shall

take place eithcr on the Project site or elsewhere.

16.2.2 In addition to technology transfer, there will also be a transfer of operational

techniques, especially in extraction and processing sectors. The transfer of

modem management techniques will also be a primary objective for the

management and supervisory team.

16.2.3 TREMALT LIMITED undertakes to supply the employées with the training

necessary to undertake their work competently, and with the opportunity to leam

new techniques which will allow them to progress in future in relation to more

complex and demanding posts. This policy has as its objective to encourage the

employées to show initiative and to take on responsibilities in order to fulfil their



17 ] Amicable Seulement. In the case of a dispute between the Parties resulting from

or conceming this Agreemcnt or related to a breach hereof, the Parties in question

undertake, beforc beginning any arbitral or judicial procedure, and except in the

case of urgency, to meet in an attempt to reach an amicable seulement. To this

effect, the president of the Parties in question (or their agents) will meet within 15

days of the date of a written invitation sent by registered post by the most diligent

Party to the other Parties involved. If this meeting does not take place within this

time lirait or if the dispute is not resolvcd by a written agreement signed by ail the

Parties involved within 15 days of the meeting, the Party involved may submit the

dispute to arbitration or may take it to court in accordance with the following

provisions of this Article.

17.2 Arbitration

(a) Binding Arbitration. AU disputes, controversies or daims arising out of

or related to this Agreement or the breach hereof, which are not

resolvcd in accordance with section 17.1 above, will be seUled by


(b) Désignation of Arbitrators. Within 15 days after delivery of its notice

demanding arbitration, the Party first calling for arbitration will

designate one person to serve as its arbitrator and will deliver a notice

containing the name and address of its désignée to the other Party.

Within 10 days after its receipt of such notice, the other Party will

designate another person to serve as a second arbitrator and will deliver

a notice containing the name and address of its désignée to the Party

who first designated an arbitrator. Within 20 days after the désignation

of the second arbitrator, the 2 arbitrators so designated will designate

and secure the agreement to serve of a third arbitrator, who will be a

person reasonably knowledgeable with respect to the matters involved

in the arbitration.

(c) Situs. The arbitration will be conducted in Geneva (Switzerland) in

English with simultaneous French translation, and the arbitrators will


takc inspiration from the procedure rules of the International Chamber

of Commerce to the extent such rules are not inconsistent with law or

this Agrecment. Arbitration proceedings will continue in the absence of

an arbitrator or a Party who, after notice given pursuant to this Article

17, fails to participate in or to obtain an adjoumment of the proceedings.

A Party who fails to exercise any right granted to it in this Article 17

within the time provided herein will be deemed to hâve waived such

right. A majority of the arbitrators will by written notice to the Parties

establish a schedule for the arbitration proceedings and issue orders

relating to the conduct of such proceedings goveming, among other

matters, discovery and the conduct of the hearing. Unless the Parties

agréé otherwise in writing, the arbitrators will issue their final decision

in writing within 60 das of the désignation of the third arbitrator. If

they fail to do so, they will be discharged and 3 other arbitrators will be

designated in accordance with the provisions of this Article 17 and

arbitration hereunder will begin anew upon the demand by either Party.

(d) Decision. The decision of the arbitrators will be final and binding upon

the Parties as soon as it is notified to each of the Parties pursuant to

Article 18. The decision must State clearly how the arbitrators hâve

ruied with respect to each issue submitted to them.

(e) Fees. Each Party will pay ail fees and costs of the arbitrator

designated by it and of its counsel and witnesses and ail other

expenses associated with the préparation and présentation of its

case. AU other costs and expenses of the arbitration will be shared

equally by the Parties unless the decision of the arbitrators will

specify a different apportionment of any or ail of such costs and


17.3 Disputes with the State. If one Party considers that a dispute between Parties is

connected to a dispute between one or more Parties and the State, it must first of

ail submit the question of such connection to the arbitration court mentioned at

section 19.2. If this arbitration court confirms the connection, the latter must

déclaré itself incompetent. In this case, the most diligent Party may, in accordance

with Article 37 of the State Agreement, jointly submit the two disputes which

hâve bcen recognised as connected, to the International Centre for the Scttlement

of Investment Disputes. Gecamines hereby submits itself to the jurisdiction of this

last body, but only in this spécifie situation. If the arbitration court judges that

there is no connection, the two disputes will be treated separately in accordance

with the procedures provided in each of the agreements.

1 7.4 Jurisdiction. AU disputes, controversies or daims arising out of or related to this

Agreement, or the breach thereof, for which the arbitration court referred to in

section 19.2 or section 19.3 (and 7.6) déclarés itself not competent (except if, with

respect to the arbitration court referred to in section 19.2 the latter has declared

itself incompétent because of connection pursuant to section 19.3, in which case

the arbitration court referred to in section 19.3 will be competent), will be of the

sole compétence of the courts of Vancouver (Canada) and conducted in English,

with simultaneous translation in French. \



18.1 KMC shall be entitled to a free choice of suppliers, contractors or sub-contractors

without any conditions or restrictions other than those resulting from the

provisions of the législation on trading companies.

1 8.2 Howevcr, it shall firstly give preference to DRC organisations and companies,

provided always that these entities guarantee the same quality, security and supply

periods as those offered by other compétitive companies.


19.1 The activities of KMC will be carried on in compliance with environmental

standards intemationally accepted as good mining practice, provided that such

standards are in practice adhered to by Gecamines in ail its operations, prior to the

Signature Date, it being recorded that GeCamines does not expect KMC to adhéré

to environmental standards which are more onerous in any way than those of

Gecamines. In addition, KMC undertakes:

19.1.1 to take adéquate measures, for the duration of this Convention, to protect

the environment and the public infrastructures used beyond normal

industrial use, in compliance with the rules and uses intemationally

accepted in the mining industry, as far as these may e applied in the DRC,

and with the laws in force;

19.1.2 to mitigate, by adéquate measures, the damage which could be caused to

the environment and to the public infrastructure used beyond normal

industrial use;

19.1.3 to comply with the législation in force conceming dangerous waste,

damage to natural resources and protection of the environment;

19.1.4 to restore used sites and the excavated plots of land in compliance with the

rules and uses intemationally accepted in the mining industry, as far as

these may be applied in the DRC;

19.1.5 to comply with the provisions of the Forest Guide, in particular those

relating to the réclamation along banks, rivers and slopes; and

19.1.6 to set up a System for the purification or treatmcnt of used residual water

from the mines and plants, which are released from the areas foreseen in

the works program.

19.2 Following the completion, and adoption by the Board of KMC, of a bankable

feasibility study, and the design of the exploitation envisaged to be provided for

therein, Gecamines shall ensure the orderly removal of ail dwellings which are

likciy to be affected by the future Mining Operations. KMC shall fund the cost of

the relocation of the relevant inhabitants, which shall be deducted from the gross

operating income for purposes of determining the Net Taxablejnc



The English and French languages shal) be the official languages to be used under

this Agreement and shall be used by the parties in ail notices, communications,

statements and any technical or commercial documentation to be prepared and

presented under this Agreement; provided that in the case of inconsistency

between the English and French versions, the English language version shall

always prevail.


This Agreement shall endure for 25 (twenty five) years after the Signature Date

and may be extended upon ternis to be mutually agreed, subject however to

extension in the case of force majeure as referred to in clause 29.


22.1 In case of Force Majeure (as such term is hereinafter defined) the party materially

affected or which could be materially affected by Force Majeure (the “Affected

Party”) shall give to the other parties to this Agreement prompt written notice

describing such event of Force Majeure.

22.2 As from the occurrence of an event of Force majeure, the obligations of the

Affected Party shall be suspended during the whole continuance of such event of

Force Majeure and for an additional pcriod, sufficient to permit the Affected

Party, acting with ail required diligence, to place itself to the same situation as

before the occurrence of such event of Force Majeure.

22.3 AH time periods and ail dates subséquent to the date of occurrence of the event of

Force Majeure shall be adjusted to take into account the extension and delay

arising out of such event of Force Majeure.

22.4 The Affected Parties shall use ail diligence, reasonably possible to eliminate such

even of Force Majeure as quickly as possible, but such requirement shall not entail

the seulement of strikes or other industrials disputes against the judgement of the

Affected Party.

22.5 For purposes of this clause the term Force Majeure means any sudden or

unforeseen or insurmountable even outside the control of the Affected Party,

excluding lack of funds, but including without limitation: strikes, lockouts or other

industrial disputes, acts of a public enemy, riots, acts of public violence, pillage,

rébellion, revoit, révolution, civil war, coup d’Etat or any event of political

character which materially affects or could materially affect the success of the

Project, fire, storm, flood, explosion, govemment restriction, failure to obtain any

approval required from public authorities inclusive of environmental protection


22.6 In case of Force Majeure, the parties hereto will consult with each other as to how

to limit the damage caused by the Force Majeure.



Subjcci lo clause 24 below. if any of the parties to this Agreement commit a

materiai breach of conlract, the olher parties shall hâve the right to deinand that

such breach bc reincdied wilhin reasonablc specified period of time. If such breach

is not rcmedied wilhin such period of lime, the complaining parly shall hâve the

right to terminale this Agreement by giving 60 (sixty) days written notice to the

defaulting party. However, if the defaulting party contests such materiai breach of

this Agreement. no terminalion shall occur unless and until an alleged unremedied

materiai breach shall hâve been judged by a final award of arbitration in

accordance wilh clause 17 of this Agreement.


24.1 TREMALT LIMITED may terminale this Agreement on 30 (thirty) days written

notice forwarded to both Gecamines and KMC at ils own élection and without

being obliged to givc rcasons for such tçrmination. In such event and to give full

effect lo this right, TREMALT LIMITED will cede free of charge its shares in

KMC to Gecamines and will procure the résignation of the persons who hâve been

electcd Managing Direclor. Directors, General Managers and Consultants.

Furthcrmore. ail advances which have by then made by TREMALT LIMITED to

KMC as being part of KMC's debl in favour of TREMALT LIMITED, will

immediately be repayable and any feasibility study (if in existence at lhat time)

will romain the property of KMC.

24.2 From transmission of the abovementioned notice. TREMALT LIMITED shall be

liberated of any further obligation lo make advances or finance the expenses.

including salaries of employées to parlicipalc in any increase of capital and/or to

render to Gecamines any further paymenis of the Project Fecs and/or Pre-Option

Fees due. and TREMALT LIMITED shall not be held liable for the payaient

thereof or for any damages towards any party whatsoever. Any Project Fees

already paid by TREMALT LIMITED to Gecamines at that time will remain the



Should the shareholders agrée on the dissolution or the liquidation of KMC, the

provisions of the statules of KMC conccrning liquidation will apply in accordance

with the laws of the Démocratie Republic of the Congo.


In the event of the création, on Gecamines' initiative, of an Institut DRC du

Cobalt, whose object would bc the study and promotion of the international cobalt

market. KMC will become one of its founding members.



27.1 The parties shall, savc as required by virtue of the fact that any of them is a listed

Company at any stage and savc as required by any regulatory authorities, keep

secret and conlldential and shall not wilhout prier wrilten permission of the other

27.1.1 parties hereto, publish, disclosc, divulge or communicate to third parties or make

public disclosures of:

the commercial ternis and conditions of this Agreement;

27.1.2 any information relating lo any activitics carried on or proposed to be

carried on pursuant lo this Agreement;

27.1.3 any information or interprétations thercof relating to the results of

prospecling, assay, analysis, or aeromagnetic surveys hcrein contemplated

or the minéralisation of the Concession Area and other areas contemplated

in this agreement. the feasibility or terms of a mining venture in the

27.2 Concession Area, proposed methods of mining, or geological. technical,

financial or other data and interprétations thereof relating to Minerais in

the Concession Area.

The parties shall take ail neccssary action, including legal proceedings, to compel

compliance with this clause 35 by their shareholders, directors, officers.

28. employées, agents, contractons and représentatives.


If any provision of this Agreement should be or bccome void, illégal or

unenforccablc, the parties shall negotiate in good faith to amend the agreement to

29. achieve the parties’ stated intention, but if this is not possible then such provision

shall be severed and the remaining provisions of this Agreement shall remain of

fui) force and cffect.


TREMAL'l LIMITED shall bear the cost of and incidental lo the negotiation,

30. préparation, execution and implémentation of this Agreement.


30.1 The provisions of this Agreement shall take preccdence over the notarial status '

document, l’ounding documents, or other form of constitution of K.MC.

30.2 The parties shall procure that the notarial status document, founding documents, or

other form of constitution of KMC. reflect the provisions of this Agreement and in

the evenl of any conllict belvvcen any of the foregoing documents and this

Agreement the provisions of this Agreement will prevail and the foregoing

documents shall be deemed amended accordingly.



31.1 This document consiilules lhe sole record of the agreement between the parties in

regard lo the subject malier lhereof.

31.2 No party shall be bound by any express or implied term, représentation, warranty.

promise or the like, not recorded herein.

3)3 No addition to. variation or consensual cancellation of this Agreement shall be of

any force or efiecl unless in writing and signed by or on behalf of ail the parties.

31.4 No indulgence which any of the parties ("the granlor”) may grant to any other or

others of them ("the grantee') shall constitute a waiver of any of the rights of the

grantor, who shall not lhereby be precluded front cxercising any rights against the

grantee which might hâve arisen in the past or which may arise in the future.

3 ] 5 lhe parties underlake at ail limes lo do ail such things. to perfomi ail such acts and

to take ail such steps and lo procure lhe doing of ail such things, the performance

of ail such actions and lhe laking of ail such steps as may be open to them and

necessary for or incidental lo the pulting inlo effect or maintenance or the ternis,

conditions and iniport of this Agreement and furthermore to act in good faith

towards each other and to co-operale with each other to lhe fullest extent.

31 6 Ail required formai ilies. underlakings. obligations, rights and other commitments

made pur.suant lo this Agreement are accepted as material by the parties hereto.


32.1 Any notice or other document lo be served under this Agreement may be delivered

or sent by prepaid first class or registered post or telex or facsimile to the other

party to be served at lhe address sel oui below or at such other address as il may

hâve nolil'icd lo lhe other parties in accordance with this clause:

32.1.1 GECAMINES La Generale des Carrières et des Mines

419 Avenue Kamanyola

B.P. 450. Lubumbashi

For attention:

Monsieur L'Administrateur Directeur General

Facsimile No: 090032 26768041

Téléphone No: 090032 26768040.


Cl 1-1204 GENEVA


P O BOX 5726

CI 1-1211 GENEVA 11


TEL: 44/22/321 6800

FAX: 44/22/321 6862


32.2 Any party hereto shall be enlilled to change ils address as set out in clause j.2

from lime lu lime, providcd thaï any new address selccted by il shall bc an address

other lhan a box number. and any such change shall only be effective upon receipt

of notice in wriling by lhe other part ofsuch change.

32.3 Ail notices, demands, communications, legal process or payments intended for

either party shall be given. made or served as such party's address for the time


32.4 A notice sent by onc party lo anoiher party shall bc deemed to be received:

32.4.1 on lhe same day, if delivered by hand;

32.4.2 on the same day. if sent by télex or facsimile;

32.4.3 on the recorded date of delivery by post, which in lhe absence of proof to

the contrat? shall bc dccmcd lo be 10 (len) business days after the date of


32.5 Nolwithslanding anything lo lhe contrary herein containcd a wrilten notice or

communication aclualiy received by a party shall be an adéquate written notice or

communication to il nolwithslanding that it was not sent to or delivered at its

chosen address.

THUS DONE AND SIGNED for and on bchalfof GECAMINES al Kinshasa on this

day of January 2001 in lhe présence of lhe undersigned wilnesses:



THUS DONE AND SIGNED for and on bchalfof TREMALT LIMITED on ihis 1 lIh

day of January 2001 in lhe présence of lhe undersigned wilnesses:





1. Kakanda Tailings

2. Kambove Tailings






P 1. C14

2. C15

3. C17

P 4. C18

5. C19

6. C21

Ü 7. C33

8. Laena & Kakontwe Quarry Rights








(1) aüKasôte-cfeposteV (21) ail Saafi deposits;'

(2) alUMftke 2 déposés; {22) ail Kiwana II deposits;

(3) ail Guluwe deposits; (23) -aH-Lvita-deposils;

(4) ail Kakanda North & South deposits; (24) ail Kahumbwe-deposils;

(5) ail Bangwe deposits; (25) al! Disele deposits;

(6) ailKabolela North JL Soulh-doposils; (26) ail Lufomboshi deposits;

(7) ail Milebi deposits; (27) alLSignal deposits;

(8) aîHvtTndtgtMeposiUr- (28) ail Mifongwj-dcposits;

(9) ail Shangulowe deposits; (29) '-nit‘Sw8mbo deposits,

(10) allShnTTOtobV^CdcpoSils; (30) ail Kufumabsambo deposits;

(11) ail Kababankola deposits; (31) ail Kasanapi deposits;

(12) all-Mukondodeposits; (32) ail Kazilangwe deposits;

(13) ail Chimbedia deposiLs; (33) ail Kalabi deposits;

(14) ait Tarataïa deposits; (34) ail Kabdela deposits;

(15) ail Kamoya (1,2 & 3) deposits; (35) ^ali Mende deposits;.

(16) ail Kambove deposits; (36) -alLKakontwe-goaffles;

(17) ail Likasi-deposits; (37) ^alltuera-ptrames;

(18) ail Sesa deposits; (38) Kepisi.

(19) ail Kazibia deposits;

(20) ail Kamfundwa deposits;





LA GENERALE DES CARRIERES ET DES MINES, Société d’Etat à caractère industriel

et commercial, ayant son siège social à Lubumbashi, sis n° 419, avenue Kamanyola, Province

du Katanga. République Démocratique du Congo


TREMALT LIMITED, Société Privée dûment constituée suivant les lois des Les Vierges

Britanniques et ayant son siège social à Akara Building, 24 de Castro Street, Road Town,


Vu l’accord intitulé « agrcement for the formation of a joint venture company » conclu entre

les parties à Kinshasa, en RDC en date du 11 janvier 2001,

Attendu que ledit accord a été renforcé par la Convention Minière entre la République

Démocratique du Congo, la Société Kababankola Mining Company, Trerr.alt Limited et la

Générale des Garn îtes et des Mines, dûment approuvée par ie décret présidentiel Nr 034/2001

du 18 Juin 2001 ;

Vu la lettre Nr C/'B/MINTÎS-HYDRO/Ol/^l 1/02 du 19 mars 2002 du Ministre des Mines et

Hydrocarbures daiêe du 19 mars 2002, laquelle justifie une révision de l’accord du 11 janvier

2001 cité ci-avant suivant le prescrit de l’article 28 dudit accord ,


Article 1 :

Les annexes « F », « K » et « L » de l’accord du 11 janvier 2001 sont annulées et remplacées

par les nouvelles annexes « B », « C » et « D » qui accompagnent le présent avenant et en font

partie intégrante. °

.Article 2 :

Toutes les références aux annexes « F », « K » et « L » doivent être lues respectivement

«3 », « C » et « D ».

.Ainsi fait ce 09 avn) 2002 à Lubumbashi en double original chaque partie retenant le sien.



Vice-President du Comité de Gest/on YUMBA MONO A

President du C mité di(Gestion

Provisoire Pro\ isoire j




industriel et commercial, ayant son siège social à Lubumbashi sis n° 419, avenue

Kamanyola, Province du Katanga, République Démocratique du Congo

(GECAMINES), d’une part ;


TREMALT LIMITED, Société Privée dûment constituée suivant les lois des Isles

Vierges Britanniques et ayant son siège social à Akara Building, 24 de Castro Street,

Road Town, Tortola, d’autre part ;

Vu la convention intitulée « Agreement for’the formation of a joint venture

company » conclu entre les parties à Kinshasa, en République Démocratique du

Congo le 11 janvier 2001, lequel a été modifié par l’Avenant n° 1 conclu entre les

parties en date du 9 avril 2002, à Lubumbashi ;

Vu la Convention Minière conclue entre la République Démocratique du Congo, la

Société Kababankola Mining Company SPRL, Tremalt Limited et la Générale des

Carrières et des Mines en date du 7 mars 2001, laquelle convention a été approuvée

par le Décret Présidentiel n° 034/2001 en date du 18 juin 2001 ;

Vu 1’ avenant n° 1 à la Convention Minière précitée conclue entre les mêmes parties

en date du 15 Avril 2002 et approuvé par le Décret n° 002/2003 du 13 Janvier 2003 ;

Attendu que les parties conviennent que la Gecamincs reprend ses droits aux

dividendes, dans la société Kababankola Mining Company SPRL, qu’elle avait jadis

cédés au Gouvernement de la République Démocratique du Congo ;


Article unique

L’Article 6.1.12 de la convention intitulée « Agreement for the formation of a joint

venture company» est abrogé dans son intégralité.

Fait à Lubumbashi, le 15 jour du mois de janvier 2003