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EXHIBIT 10.1
POTASH SALES AGREEMENT
Made and entered into as of the 1st day of January, 1990
by and between
DEAD SEA WORKS LIMITED
and
HAIFA CHEMICALS LIMITED
E-11
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POTASH SALES AGREEMENT
THIS AGREEMENT, made and entered into as of the 1st day of January,
1990 by and between DEAD SEA WORKS LIMITED, of Xxxxxx Xxxxx, Xxxx Xxxxx 00000,
Xxxxxx ("Seller"), and HAIFA CHEMICALS LIMITED, of P.O. Box 1809, Haifa
("Buyer");
W I T N E S S E T H:
WHEREAS, Buyer desires to purchase and receive potash from Seller; and
WHEREAS, Seller desires to sell and deliver potash to Buyer;
NOW, THEREFORE, in consideration of these premises and the mutual
promises set forth herein, the parties hereby agree as follows:
ARTICLE I - DEFINITIONS
As used herein:
1.1 "Ton" shall mean - 1,000 (one thousand) Kgs.
1.2 "Product" shall mean - Potash as set forth in Exhibit "A" attached
hereto.
1.3 "Contract Year" shall mean - January 1st through December 31st.
1.4 "Contract Year Quota" shall mean - quantities of Product to be sold and
delivered by Seller and purchased and received by Buyer in each
Contract Year as set forth in sub-articles 3.1 and 3.2 below.
1.5 "Delivery Location" shall mean - Tzefa Plain.
1.6 "K(2)O" shall mean - the potassium content of the Product expressed as
the mono oxide of potassium.
1.7 "Quarter" shall mean a period of three calendar months as follows:
January 1st through March 31st, April 1st through June 30th, July 1st
through September 30th, October 1st through December 31st.
1.8 "Basic Delivered Price" shall mean the basic delivered price calculated
in accordance with the provisions of article 5.1 below.
1.9 "Expanded Facility" shall mean a 50,000 Tons manufacturing facility for
Potassium Nitrate to be constructed at Buyer's premises in Haifa.
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1.10 "The Expanded Facility Effective Date" (or "EFED") shall mean the date
indicated in Buyer's advice to Seller to be given pursuant to
sub-article 3.2 below as the date on which Buyer shall begin to require
additional quantities due to the completion of the Expanded Facility.
1.11 "Specifications" shall mean - the specifications set forth in Exhibit
"A".
1.12 "Israeli Market Product" shall mean - the quantity of Product used by
Buyer for the manufacture of Potassium Nitrate and other products, if
any, not exported by Buyer from Israel.
ARTICLE II - TERM
2.1 The term of this Agreement shall be from 1st January 1990 through 31st
December 1999.
2.2 This Agreement may only be renewed by a written instrument signed by
both parties hereto setting out the price, the duration of the renewed
term and all other terms and conditions which shall apply during any
renewed term.
ARTICLE III - QUANTITY
3.1 Seller shall sell and deliver and Buyer shall purchase and receive
during each Contract Year 180,000 Tons of Product +/-15% Buyer's
option.
3.2 Buyer has advised Seller that upon completion of the Expanded Facility
Buyer's annual requirement for Product shall gradually increase up to
40,000 Tons +/-15% per Contract Year. Buyer shall advise Seller in
writing from time to time the dates on which it shall commence to
consume additional tonnage as part of the said 40,000 Tons at least 3
months prior to each such date, setting forth in such advice the
additional quantity required, ALWAYS PROVIDED that the aggregate
additional amount shall not exceed 40,000 Tons (+/-15%) per Contract
Year.
The quantity set forth in each such advice shall be added to the
applicable Contract Year Quota. If the date on which Buyer's advice
shall become effective shall not fall within the first month of the
applicable Contract Year then the quantity added to that Contract Year
Quota shall be determined on a pro rata basis.
3.3 Should Buyer request additional tonnage in excess of the quantities set
forth in 3.1 and/or 3.2 above, Seller will use reasonable efforts to
supply the same, but Seller shall have no obligation to supply such
additional tonnage.
3.4 Without prejudice to the provisions of sub-articles 3.1, 3.2 and 3.3 -
Buyer shall advise Seller at least 3 (three) months prior to the
commencement of each Contract Year the
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estimated quantity of Product to be delivered and received during each
Quarter of the applicable Contract Year. Quantities in respect of each
Quarter may be adjusted by Buyer not later than 30 (thirty) days prior
to the commencement of the applicable Quarter.
3.5 In each calendar month of each Contract Year, Buyer will take delivery
of not less than 5% (five percent) and not more than 10% (ten percent)
of that total Contract Year Quota.
3.6 In the event that Buyer will take delivery of less than the said 5%
during any calendar month (hereinafter - "the Minimum Monthly
Quantity") for any reason whatsoever, except Seller's default, Seller
will be entitled, without prejudice to any rights afforded it hereunder
and under the law, to reduce that Contract Year Quota, by amounts not
exceeding in the aggregate the difference between the Minimum Monthly
Quantity and the aggregate quantity actually received by Buyer during
that calendar month.
3.7 Buyer shall not use the Product purchased hereunder for the purpose of
(a) resale of same; or (b) for the purpose of manufacturing in any way
or manner, selling or otherwise dealing with technical grade Potash or
SOP.
ARTICLE IV - DELIVERY, TITLE, RISK & SHIPMENT
4.1 Product shall be delivered to Buyer fob railway cars at Tzefa Plain. If
no railway cars shall be available Product shall be delivered fob
Buyer's trucks at Tzefa Plain.
4.2 Risk of loss and damage to the Product shall pass to Buyer as Product
is progressively loaded upon trucks or railway cars, as the case may
be, at the Delivery Location.
ARTICLE V - PRICE
5.1 The Basic Delivered Price for each Ton of Product during any Quarter
shall be:
BP = WAF - FC
Where:
BP = Basic Delivered Price;
WAF = weighted average of the fob Israeli port price received by
Seller for non-granulated potash exported from Israel during
the immediately preceding Quarter.
FC = Variable costs per Ton from FOB cars Tzefa Plain to fob
vessel in the port of Ashdod.
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5.2 In addition to the Basic Delivered Price Buyer shall pay Seller an
amount equal to the amount of export premiums and benefits (such as,
including but without limitation, Bituach Shaar or any other similar or
substitute programmes) of whatsoever kind or nature which would have
been paid to Seller or to which Seller would have been entitled had
Product sold to Buyer hereunder been exported by Seller during the
preceding Quarter;
5.3 In addition to the amounts referred to in 5.1 & 5.2 above, Buyer shall
pay Seller a premium of U.S.$ 4.25 per Ton of Product sold and
delivered to Buyer.
ARTICLE VI - DISCOUNTS
6.1 For the purposes of this article VI the following expressions shall
have the meaning assigned to them hereunder:
- "Expanded Facility" - as defined above.
- "Extra Discount Period" shall mean the period during which
Buyer shall be entitled to an additional discount of 5% (five
percent) as set forth in article 6.3 below, which period shall
begin on the EFED and shall terminate upon the occurrence of
the earlier of:
(a) 3 (three) years after the EFED but not later than
31.12.1995; or
(b) after Buyer shall have received the discount referred
to in 6.3 below - for and in respect of a total
quantity of 80,000 Tons.
- "Excess Quantity" - in respect of each month during the Extra
Discount Period Product sold and delivered to Buyer in the
relevant Contract Year in excess of 200,000 Tons divided by 12
(and a pro rata quantity in respect of part of a month).
6.2 During the life of this Agreement, Buyer shall receive a discount of 3%
(three percent) on the Basic Delivered Price and on the amounts
referred to in sub-article 5.2 above, on all Product, sold and
delivered to it by Seller.
6.3 In addition to the discount referred to in sub-article 6.2 above, Buyer
shall be entitled to receive a discount of 5% (five percent) on the
Basic Delivered Price and on the amounts referred to in sub-article 5.2
above for and in respect of Excess Quantity only sold and delivered
during any calendar month falling within the Extra Discount Period.
6.4 For the avoidance of doubt it is hereby clarified that amounts or
payments pursuant to the provisions of sub-article 5.3 above shall not
be deemed or considered as part of the price for the purpose of
calculating the discounts referred to in sub-articles 6.2 and 6.3
above.
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6.5 Notwithstanding anything to the contrary herein contained it is agreed
that in the event that the granting of the discounts referred to in
sub-articles 6.2 or 6.3 above shall result in a delivered price payable
to Seller of less than the Minimum Price (as defined below), then the
discounts shall be adjusted so that the delivered price shall not be
less than the Minimum Price. For the purposes hereof the Minimum Price
shall mean - cost of production plus all other expenses incurred by
Seller up to and including the Delivery Location, as reflected in the
audited financial statements of Seller.
ARTICLE VII - TERMS OF PAYMENT
7.1 Seller shall invoice Buyer, at the end of each calendar month or as
soon as practicable thereafter, for Product delivered during that
calendar month. Premiums and all other payments (if any) due to Seller
pursuant to the provisions of this Agreement as well as all discounts
due to Buyer (if any) shall be reflected in each monthly invoice.
7.2 Payments in full for Product delivered shall be made by Buyer within 60
(sixty) days from the end of the calendar month in which that Product
was delivered.
7.3 Overdue amounts shall carry interest at the then current Libor Rate
(taking into consideration amount and time involved) + 2% from date on
which payment is due pursuant to the provisions hereof until actual
payment. The above is in addition to all rights and remedies which
Seller may have in case of default by Buyer.
7.4 Invoices shall be in U.S.$ and all payments (including interest) shall
be made in said currency unless otherwise agreed upon by the parties
hereto.
In the event that it will not be permitted to effect payments in U.S.$
then the currency used for payments shall be Israeli and the amount of
New Israeli Shekels payable shall be determined in accordance with (i)
with respect to sales of Israeli Market Product - the representative
rate of exchange (as published by the Bank of Israel) published
immediately before actual payment is made; and (ii) with respect to all
other sales of Product the then prevailing rate of exchange for the
conversion by Seller of U.S.$ (being proceeds of export sales) into
Israeli Shekels excluding any premiums which Seller is entitled to
receive from Buyer under any other provision hereof.
In the event that the representative rate of exchange shall not be
published by the Bank of Israel then a substituting rate shall be used,
which shall resemble the principles reflected in the determination of
the representative rate of exchange.
ARTICLE VIII - WARRANTY
8.1 Seller warrants that Product delivered hereunder shall materially
conform to the Specifications.
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THIS WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESSED OR IMPLIED
AND SELLER EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES INCLUDING, BUT
WITHOUT LIMITATION, THAT PRODUCT WILL BE FIT FOR BUYER'S PARTICULAR USE
OR PURPOSE.
Unless Seller receives written notice otherwise within 15 (fifteen)
days after delivery of the Product to Buyer, the Product will be deemed
to conform to Specifications.
ARTICLE IX - LIABILITY AND CLAIMS
9.1 Seller shall not be liable for special, consequential or coincidental
damages arising out of non-delivery, use, inability to use or any other
cause whatsoever, whether in contract, tort or otherwise.
9.2 Without prejudice to the provisions of sub-articles 9.1 above and 9.4
below, in no event shall any claim made by Buyer for non-delivery of
the Product, shortage of weight, deficiency in analysis or for any
other reason whatsoever be greater than the purchase price of that
portion of the Product in respect of which such claim is made.
The amount referred to above constitutes the maximum amount that may be
claimed by Buyer in respect of damages not excluded from Seller's
liability under the provisions of sub-article 9.1 above and shall not
be interpreted so as to impose an obligation upon Seller to indemnify,
compensate or otherwise pay Buyer the above amount.
9.3 All claims shall be supported by appropriate documentary evidence and
must be made in writing, within 15 (fifteen) days after delivery of
Product to Buyer. Failure to give written notice of claim within the
specified time shall constitute a waiver by Buyer of all claims in
respect of such Product.
9.4 In the event that Product shall not conform to the Specifications, the
following shall apply:
9.4.1 If Product delivered shall contain more than 1000 PPM
insolubles in water, Buyer shall have the option to either
reject such Product (in accordance with the provisions
hereinbelow stipulated), or take delivery of same but not pay
in respect thereof the premium of U.S.$ 4.25 referred to in
sub-article 5.3 above.
9.4.2 If Product delivered shall have less than 60% (sixty percent)
K2O a pro rata rebate will be allowed in case of undertest
(calculated on the basis of 60% K2O).
9.4.3 If Product delivered shall materially not conform to
Specifications (other than specifications referred to in 9.4.1
and 9.4.2 above) Buyer shall be entitled to reject such
Product in accordance with the provisions hereinbelow
stipulated.
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9.5 Buyer's right to reject Product as above set forth shall only apply to
Product which shall not have been contaminated or impaired subsequent
to delivery thereof to Buyer and Buyer shall be entitled to exercise
same if, and only if, a claim in respect thereof shall have been made
in accordance with the provisions of sub-article 9.3 above within the
time therein stipulated.
9.6 In the event of rejection of Product as above mentioned, the following
shall apply:
9.6.1 Buyer shall ship such Product and it shall be promptly
unloaded at either Ashdod or Delivery Location, as will be
determined by Seller. All costs of loading (if any) at Buyer's
plant in Haifa, shipment therefrom to the relevant location
and unloading of Product rejected as aforesaid, will be borne
by Seller.
9.6.2 Seller shall replace the rejected Product by delivering to
Buyer an equivalent quantity. Seller shall not be required to
pay for rejected and returned Products in accordance with the
provisions of this article 9. All costs of loading replacing
Product at the Delivery Location and shipping it therefrom to
Buyer's plant in Haifa will be borne by Seller.
9.6.3 Buyer shall not be entitled to receive and Seller shall not be
required to pay Buyer compensation, indemnification or other
payments or expenses of whatsoever kind or nature with regard
to rejected Product, the rejection of Product or as a
consequence thereof or otherwise, except that if Seller shall
have received payment for Product which has been rejected
pursuant to the terms hereof and has not replaced same as in
9.6.2 set forth, Seller shall apply any amount so received as
credit for future purchases of Product hereunder.
9.7 The parties recognize the importance to Buyer that a certain soot level
in Product sold and delivered to Buyer hereunder be established and
maintained. The parties differ, on the date of signature hereof as to
the existence of an adequate method to be utilized for the
determination of such level and therefore the parties shall act in
accordance with the following provisions:
9.7.1 The parties shall jointly attempt to establish a mutually
acceptable method to be applied and utilized in determining
the soot level in the Product (hereinafter - "the Adequate
Method").
9.7.2 In the absence of agreement between the parties until the 31st
day of December 1990 as to the Adequate Method, the parties or
either of them shall petition the President of the Weizman
Institute in Rehovot to appoint a team of experts in order to
determine the Adequate Method.
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The number of experts who shall be so appointed shall be at
the discretion of the appointor and each party hereto shall be
entitled to appoint one representative to such a team who is
well conversed in the field of chemistry. The parties'
representatives in such a team shall serve as observes with
the right to voice their opinions, receive information and
discuss any and all matters with the members of the team but
they shall have no vote, if votes shall be taken in the
determination of the Adequate Method. The decision of the team
shall be binding upon the parties. The costs involved in the
work and determination of the said team of experts shall be
borne and paid for by Seller and Buyer in equal portions.
9.7.3 Seller has taken and shall take a sample, at its plant in
Sdom, from each Shipment of Product (as defined in 14.2.1
below) during the period commencing on 16th. November, 1989
and terminating on the 30th. June, 1990 and shall retain the
same until the determination of the ASL (as defined below) in
accordance with the provisions hereof. Upon the establishment
of the Adequate Method all samples taken during the said
period shall be analysed by utilizing the Adequate Method in
order to determine the soot level in each sample (hereinafter
- "the Analysed Samples").
The average level of soot in all of the Analysed Samples
(except as stipulated in 9.7.6.2 below) (which average shall
be determined by adding up all the units by which soot level
shall be measured, found in all the Analysed Samples and
dividing the result by the number of the Analysed Samples)
multiplied by 1.6 (one point six), shall constitute the
maximum permitted level of soot in Product to be delivered to
Buyer hereunder (hereinafter - "the Allowed Soot Level" or
"ASL"), as of the application of the Adequate Method and
thereafter. (The period commencing on the 1st day of January
1990 and terminating upon the actual application of the
Adequate Method shall hereinafter be referred to as - "the
Interim Period").
9.7.4 As of the time on which the ASL shall have been established
and applied and thereafter the ASL shall constitute an
integral part of Section A of Exhibit "A" and Product
delivered to Buyer with a higher soot content than the ASL
shall, mutatis mutandis, be governed by the provisions
applicable to Product having more than 1000 PPM insolubles in
water.
9.7.5 Soot level in Product supplied to Buyer during the Interim
Period shall be the same as or substantially similar to the
soot level in Product supplied to Buyer during 1989
(hereinafter - "the Previous Soot Level" or "PSL"). Failure on
part of Seller to supply Product with a soot level equal to or
less than the PSL shall entitle Buyer to the sole and only
remedy of returning Product with a soot level in excess of the
PSL subject to the following:
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9.7.5.1 Buyer shall advise Seller (by telephone followed by a
facsimile message) immediately upon detection by
Buyer of Product allegedly having excessive soot
level which Buyer intends to return to Seller and in
no event later than 30 hours after delivery thereof
to Buyer and not later than 2 p.m. on any working
day. Such advice shall specify the quantity involved
and all relevant details leading to Buyer's decision
to return the Product.
9.7.5.2 Upon receipt of such advice, Seller shall be entitled
to send a representative to the location of the
allegedly contaminated Product within 6 (six) hours
of the time of receipt of such advice in order to:
(a) visually inspect same; and (b) take a sample
therefrom.
9.7.5.3 No Product shall be returned before Seller's
representative has inspected the allegedly
contaminated Product or failed to do so within the
stipulated time.
9.7.6 If Product allegedly having an excessive soot level shall be
returned to Seller during the Interim Period in accordance
with the terms hereof:
9.7.6.1 Seller shall (subject to 9.7.7 below) pay 50% of the
costs of its return (i.e., 50% of shipment cost from
Buyer's facility in Haifa to the place of return
which shall be any one or more of the following
places, Seller's option: Ashdod or Tzefa).
9.7.6.2 Samples taken from returned shipments shall not be
included in the Analysed Samples and shall not be
used for the purpose of determining the ASL.
9.7.7 Notwithstanding 9.7.6 Seller shall not be required to pay the
costs referred to in 9.7.6 above in respect of any returned
shipment if the sample therefrom shall have been found to
contain by using the Adequate Method, a soot level equal to or
less than the ASL.
9.7.8 If Product shall be returned to Seller for having or allegedly
having excessive soot content therein in accordance with the
terms hereof, Seller shall deliver to Buyer at the Delivery
Location replacing Product (for which Buyer shall not be
required to pay Seller if it paid seller the amount due for
the returned Product) having acceptable soot level to Buyer,
and the provisions of sub-articles 9.6.1 and 9.6.2 shall not
apply to any returned or replacing Product.
9.7.9 For the avoidance of doubt it is hereby clarified that during
the Interim Period, no deduction of whatsoever kind from the
price payable to Seller hereunder shall be
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made if Product delivered to Buyer shall contain, or allegedly
contain, excessive soot level.
9.8 Buyer shall not delay or withhold payments in respect of Product
delivered notwithstanding any claim which has been or could have been
made by Buyer except for payments in respect of Product rejected and
returned by Buyer pursuant to the provisions of sub-article 9.6 above,
but said exception shall not apply to Product returned, for having or
allegedly having excessive soot level, during the Interim Period.
ARTICLE X - TAXES
10.1 Value Added Tax due or payable with regard to the sale and purchase of
the Product hereunder shall be borne and paid by Buyer.
10.2 If any tax (other than tax on the overall net income of Seller),
charge, fee, levy or duty shall be imposed or increased upon the sale
or purchase of the Product at any time after the date of signature
hereof, the amount thereof shall be borne and paid by Buyer.
ARTICLE XI - FORCE MAJEURE
11.1 Each of the parties hereto shall be relieved of its obligations
hereunder if and to the extent that it is prevented from performing the
same by any cause beyond its reasonable control, including, without in
any way limiting the generality of the foregoing, acts of God, war, the
elements, explosion, fire, riots, strike, lock-out or other differences
with workmen (neither party shall be required to settle any labor
dispute against its own best judgement), shortage of utility, facility,
material or labour, breakdown, accident or compliance with or other
action taken to carry out the intent or purpose of any law or
regulation.
The party so affected shall promptly notify the other of the existence
of such cause, of its expected duration, and of the estimated effect
thereof (to the extent known) on its ability to perform its obligations
hereunder.
Each party so affected shall promptly notify the other party when such
cause ceases to affect its ability to perform its obligations
hereunder.
ARTICLE XII - ALLOCATION
12.1 In the event of Seller's inability, for any of the causes set forth in
Article 11.1 above, to supply the total demand of Seller's customers
(anywhere in the world) for the Product, Seller shall have the right to
allocate its available supply among Seller's customers on a fair and
equitable basis, and the relevant Contract Year Quota shall be adjusted
accordingly.
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ARTICLE XIII - DEFAULT BY OR INSOLVENCY OF BUYER
13.1 If Buyer fails to pay any amount due or payable to Seller hereunder
within the stipulated time, Seller may, in addition to any other rights
it may have, suspend shipment and delivery of Product until such
default is made good.
In the event that such suspension shall result in Buyer receiving,
during any calendar month, less than the Minimum Monthly Quantity (as
defined in sub-article 3.6 above) the provisions of sub-article 3.6
shall apply.
Waiver by Seller of any default by Buyer hereunder shall not be deemed
as a waiver of any default thereafter occurring.
13.2 Non payment within the times herein set for payment and a breach of or
non-compliance with any of the provisions of sub-article 3.1, 3.2, 3.7,
7.2, 9.8 and 15.1 shall be deemed as a fundamental breach of this
Agreement.
13.3 If Buyer becomes insolvent or ceases to function as a going concern or
if a Receiver for it is appointed or applied for, or a petition under
any bankruptcy or reorganization statute is filed by it or against it,
or if it makes an assignment for the benefit of creditors or takes
advantage of any insolvency statute, Seller may forthwith terminate
this Agreement without further liability to Buyer but such termination
shall be without prejudice to the rights of the parties with respect to
Product therefore delivered to Buyer.
ARTICLE XIV - WEIGHT AND ANALYSIS
14.1 The weight of the Product delivered hereunder shall be determined by
weighing on officially certified scales designated by Seller and the
cost of weighing shall be for the account of Seller.
Such weighing shall be binding on both parties hereto and shall serve
as a basis for billing Buyer hereunder.
14.2 14.2.1 Seller shall, at its plant in Sdom, take a sample from each
Shipment of Product and shall analyse the same in accordance
with the analysis method then used by Seller.
"Shipment of Product" shall mean - total quantity of Product
in Sdom shipped to Buyer on any calendar day.
Each sample taken shall be divided into three portions. One
portion shall be analysed by Seller as herein provided. One
portion shall be made available to Buyer and shall be shipped
to Buyer at Buyer's account, once a week. One portion shall be
retained by Seller for a period of not less than 30 (thirty)
days.
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14.2.2 Seller shall telefax to Buyer daily copies of the analysis
results.
14.2.3 Until such time that the analysis method referred to in 14.2.5
below shall be applied (if at all), Seller's analysis results
referred to above shall be binding on the parties hereto.
14.2.4 Buyer shall be entitled to analyse samples of Product taken
from Seller as provided in 14.2.1 above.
14.2.5 If Buyer's analysis result shall indicate that Product
delivered contains more than 1000 PPM insolubles in water and
Buyer's and Seller's respective analysis results referred to
above shall differ by more than 10% with regard to the PPM
insolubles in water content in the Product, or shall
substantially differ with regard to other Specifications that
materially affects Buyer (except the K2O content in Product),
then Buyer shall be entitled to request that samples shall be
analysed in a way to be agreed upon between the parties.
14.2.6 If the parties shall fail to agree as to the analysis method,
the matter shall be referred to an individual to be appointed
by both parties who is well conversed with the chemical issues
involved.
In the absence of agreement between the parties as to whom
that individual should be, he shall be appointed at the joint
request of the parties by the then head of the chemistry
department of the Xxx Xxxxxx University in Beer-Sheva.
14.2.7 The decision of the individual appointed shall be final and
binding upon the parties.
14.2.8 Buyer shall have the right to take samples at the Delivery
Location. If Buyer shall analyse samples taken at the Delivery
Location and shall continuously receive results regarding the
PPM insolubles in water content which substantially differ
from Seller's analysis results in a way which materially
affects Buyer then, at the request of Buyer, Seller and Buyer
shall hold discussions, exchange views and carry on such
agreed tests and experiments with a view of finding out the
reason for such substantially different results.
ARTICLE XV - RIGHT OF SET-OFF
15.1 Buyer shall not be entitled to set-off, or otherwise deduct any sums
from any amount which may be due or payable to Seller hereunder or
otherwise.
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ARTICLE XVI - WAIVER OF DEFAULT
16.1 Any failure by either party at any time, or from time to time, to
enforce or require the strict keeping and performance of any
performance of any term or condition of this Agreement shall not
constitute a waiver by such party of any subsequent breach of such term
or condition, or of the right of such party to avail itself of such
remedies as it may have for any such subsequent breach.
ARTICLE XVII - ASSIGNMENT
17.1 This Agreement or any right or obligation thereunder shall not be
assignable in whole or in part by either party without the prior
written consent of the other party, except that Seller may assign its
right to receive payments hereunder.
Any assignment without such prior written consent (if consent is
required) shall be deemed void ab initio.
ARTICLE XVIII - ENTIRE AGREEMENT AND HEADINGS
18.1 This Agreement constitutes the entire agreement between the parties
hereto with reference to the subject matter hereof, and all proposals,
negotiations, representations, if any, made prior and with reference
hereto are merged herein. No past conduct or custom of trade previously
applied in the parties' past business between themselves shall at any
time affect the interpretation of this Agreement.
No terms or conditions, other than those stated herein, and no
agreement or understanding in any way modifying the terms and
conditions stated herein, shall be binding on either party unless made
in writing and signed by both parties.
18.2 The headings herein are for the sake of convenience only and shall not
be relied upon in the interpretation or construction of this Agreement.
ARTICLE XIX - CPA'S CERTIFICATES
19.1 At the request of Buyer, Seller shall deliver to Buyer, as soon as
practicable after termination of each Contract Year a letter from
Seller's CPA certifying that pricing of Product sold and delivered to
Buyer turning that Contract Year conform to the applicable provisions
of the Agreement.
19.2 At the request of Seller, Buyer shall deliver to Seller, as soon as
practicable after termination of each Contract Year a letter from
Buyer's CPA certifying that quantity of Israeli Market Product declared
by Buyer in respect of that Contract Year conform to the applicable
provision of the Agreement.
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ARTICLE XX - STAMP DUTIES
20.1 Stamp duties in respect of this Agreement shall be borne and paid for
by Buyer.
ARTICLE XIX - NOTICES
21.1 All notices and other communications hereunder shall be in writing and
shall be addressed to the parties at their respective above mentioned
address.
21.2 Either party may change the address or official to which notices shall
be given by notice to the other party as herein provided.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed.
/s/ /s/ Xxxxx Xxxxx
------------------------------------- ------------------------------
DEAD SEA WORKS LTD. HAIFA CHEMICALS LTD.
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