EXHIBIT 10.8*
MINING AGREEMENT
THIS AGREEMENT (herein called "Agreement") made as of January 1, 2003,
between Xxxxxxx Mining & Land Co., a corporation organized and existing under
the laws of the state of Georgia and having an office at X.X. Xxx 0000,
Xxxxxxxxxxxxx, Xxxxxxx 00000 ("Contractor"), and CARBO Ceramics Inc., a
corporation organized and existing under the laws of the state of Delaware and
having an office at 0000 XxxXxxxxx Xxxxxxxxx, Xxxxx 0000, Xxxxxx, Xxxxx 00000
("Owner").
WITNESSETH:
WHEREAS, Contractor and Owner desire to enter into this Agreement which
will (i) supercede and replace the Raw Materials Requirements Agreement entered
into between Contractor and Owner dated November 18, 1997, and (ii) set out the
terms pursuant to which Contractor shall mine (either from lands owned or leased
by Owner (the "Owner's Lands") or from lands owned or leased by Contractor as
described on Exhibits B, C, D and E hereto (the "Contractors' Lands") and
deliver to Owner's Xxxxxxxxx County, Georgia manufacturing plant a supply of
kaolin, a naturally occurring mineral more particularly described (and meeting
the specifications set forth) in Exhibit A hereto (the "Product"), and,
WHEREAS, Contractor is able and desires to mine and deliver such
Product to Owner;
NOW, THEREFORE, in consideration of the mutual covenants and promises
contained herein, the parties agree as follows:
1. TERM
The term of this Agreement shall be 20 years commencing January 1,
2003, and ending December 31, 2022.
2. CONTRACTOR'S RESPONSIBILITIES
Contractor shall be specifically responsible for the following (herein
called the "Work"):
A. Obtaining and maintaining a valid mining permit from the State of
Georgia and any other governmental body which requires Contractor to have a
license or permit to mine and remove Product from the Subject Properties
pursuant to this Agreement.
* Confidential Information in this Exhibit 10.8 has been omitted and filed
separately with the Securities and Exchange Commission.
B. Removing overburden from the Subject Properties in a manner so as to
allow Owner unimpeded access to a minimum of 40,000 tons of Product at any given
time.
C. Maintaining roads to, from and across the Subject Properties in a
manner suitable to mine and remove from the Subject Properties the Product
described in this Contract.
D. Reclaiming the Subject Properties in accordance with the permit(s)
Contractor has obtained.
E. Providing to Owner a site of location, size and character upon which
to stockpile approximately 5,000 tons of the Product. Seller shall maintain such
stockpile at all times during this Agreement.
F. Contractor shall mine sufficient quantities of the Product to fill
orders made by Owner on an "as needed" basis.
G. Contractor shall deliver to the Owner's manufacturing plant (the
"Plant") in Xxxxxxxxx County, Georgia the quantities of the Product ordered by
Owner. If Owner requests delivery to any location other than the Plant, Owner
shall bear all costs for transportation in excess of the cost to transport the
Product to the Plant.
3. Purchase Commitment
A. In each year during the term of this Agreement, Owner shall be
obligated to accept deliveries of conforming Product from Contractor totaling,
as a minimum, eighty percent (80%) of its actual annual requirements of the
Product during such year for its operations in Xxxxxxxxx County, Georgia. In the
event Contractor fails to deliver Product in a timely manner which has been
ordered by Owner and Owner purchases such Product from another source or
contracts with another contractor to mine and deliver such Product, Owner shall
deduct the amount of such purchase or delivery from another source from the
minimum purchase requirements set out in the preceding sentence.
4. PRICE
The price per ton (the "Price Per Ton") for the Product mined and
delivered by Contractor to the Plant shall be the sum of the Haulage Charge, the
Overburden Charge, the Miscellaneous Charge, the Profit/Overhead Charge and, if
applicable, the Royalty Charge.
A. The Haulage Charge per short wet ton shall be determined from the
following chart based on the number of miles the Product is hauled from the
mining site to the Plant:
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Loading/
Distance Haulage Unloading Total
--------------- ------- --------- -----
0-5 Miles $[*] $[*] $[*]
5.001-10 Miles $[*] $[*] $[*]
10.001-15 Miles $[*] $[*] $[*]
B. The Overburden Charge per short wet ton shall be determined from the
following chart based on the ratio of the number of feet of overburden which was
removed to uncover the Product as compared to the number of feet of Product:
Ratio:
Overburden Kaolin/Bauxite Price Per Short Wet Ton
---------- -------------- -----------------------
0.5 1.0 $[*]
0.75 1.0 $[*]
1.0 1.0 $[*]
1.5 1.0 $[*]
2.0 1.0 $[*]
2.5 1.0 $[*]
3.0 1.0 $[*]
C. The Miscellaneous Charge is $[*] per short wet ton and is comprised
of the following items per short wet ton:
Water Control $[*]
Quality/Safety Management $[*]
Motor grading/Pit Clean-Up $[*]
Environment $[*]
Survey Work $[*]
---
TOTAL $[*]
D. The Profit/Overhead Charge is $[*] per short wet ton.
E. Owner shall pay to Contractor the Royalty Charge per short wet ton
of Product mined and delivered from Contractor's Lands to Owner which is payable
by Contractor pursuant to the terms of written agreements with the landowners of
the Contractor's Lands in effect on the date hereof. The Royalty Charge per
short wet ton of
* Confidential Information omitted and filed separately with the Securities
and Exchange Commission.
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Product mined and delivered from Contractor's Lands which are owned (not leased)
by Contractor shall be $[*] per short wet ton. No Royalty Charge shall be
payable to Contractor with respect to Product mined from Owner's Lands.
F. Beginning on January 1, 2003, the amount shown for Haulage Charge in
subpart 4A shall be increased or decreased on each semiannual anniversary date
of this Agreement to reflect any changes in the Producer Price Index ("PPI") for
No. 2 Diesel Fuel (product code 2911-413) that occurred during the preceding
six-month period (for an example of the calculation, see Appendix A). The
adjustment shall be made as soon as the PPI for the applicable period is made
available by the U.S. Department of Labor, Bureau of Labor Statistics or any
other U.S. government organization that may have responsibility for publishing
PPI data in the future. Contractor and Owner hereby recognize that such data is
preliminary as initially published by the Bureau of Labor Statistics and agree
to accept this preliminary data as final for purposes of calculating the
adjustment to the Haulage Charge. Notwithstanding the adjustment determined in
accordance with this subpart 4F, at no time shall the Haulage Charge be less
than the amount shown for each relative distance in subpart 4A.
G. Beginning on July 1, 2003, the amounts shown for Overburden Charge
and Miscellaneous Charge in subparts 4B and 4C shall be adjusted on each
anniversary date of this Agreement to reflect any changes in the Producer Price
Index for kaolin and ball clay (product code 1455) that occurred during the
prior twelve-month period (for an example of the calculation, see Appendix A).
The adjustment shall be made as soon as the PPI for the applicable period is
made available by the U.S. Department of Labor, Bureau of Labor Statistics or
any other U.S. government organization that may have responsibility for
publishing PPI data in the future. Contractor and Owner hereby recognize that
such data is preliminary as initially published by the Bureau of Labor
Statistics and agree to accept this preliminary data as final for purposes of
calculating the adjustment to the Overburden Charge and the Miscellaneous
Charge. Notwithstanding the adjustment determined in accordance with this
subpart 4G, at no time shall the Overburden Charge and Miscellaneous Charge be
less than the amount shown for each charge in subparts 4B and 4C.
H. If the cost of insurance required to be carried by Contractor
pursuant to Section 11 increases in any year by more than ten percent (10%) over
the cost of such insurance for the immediately preceding year, Contractor shall
notify Owner in writing (the Notice of Premium Increase). For a period of thirty
(30) days from the date of Notice of Premium Increase, Contractor and Owner
shall negotiate in good faith to reach a mutually agreeable increase in the
Price Per Ton to compensate Contractor for the increased cost of insurance
applicable to this Agreement. If Owner and Contractor fail to reach a mutually
agreeable increase in the Price Per Ton within such thirty (30) day period, this
Agreement shall terminate one year from the date of the most recent Notice of
Premium Increase.
* Confidential Information omitted and filed separately with the Securities
and Exchange Commission.
-4-
5. MINING AND DELIVERY
A. Owner shall advise Contractor prior to October 1, 2003 of the
tonnage of its projected 2004 Product requirements, and shall thereafter advise
Contractor on or before October 1 of each year, of the tonnage of the Product it
projects to require during the next calendar year. Such projections should be
estimates only and Owner shall not be committed to accept deliveries of such
amounts. Owner shall use reasonable efforts to advise Contractor promptly in the
event of any change in its annual requirements projections for any year.
B. Owner and Contractor shall communicate regularly, and Contractor
shall ensure the availability of Product for delivery hereunder on an "as
needed" basis. Owner shall use its best efforts (to the extent feasible) to
space evenly its actual orders of the Product, and Contractor shall be obligated
to fill such orders.
C. Owner and Contractor shall jointly prepare and agree on a plan for
the efficient mining of Product from the Owner's Lands and the Contractor's
Lands (the "Mining Plan"). In the event of any dispute regarding the Mining
Plan, the Owner shall make the final determination as to how properties will be
mined.
D. Risk of loss and title for all Product mined from the Contractor's
Lands shall pass to Owner upon delivery to Owner's plant in Xxxxxxxxx County,
Georgia.
6. PAYMENT
Invoices for Product mined and delivered hereunder shall be sent to
Owner on a monthly basis. Payment for the Product mined and delivered hereunder
shall be net thirty (30) days from date of invoice.
Owner has advanced to Contractor the sum of $1,000,000 as a prepayment
of Royalty Charge which shall become due for Product mined from the Contractor's
Lands pursuant to this Agreement. Owner shall be entitled to credit such
prepayment against Royalty Charge which would otherwise be due and shall not be
required to pay any Royalty Charge until the full amount of such prepayment has
been applied against the Royalty Charge otherwise payable hereunder.
7. ASCERTAINMENT OF WEIGHT
The weight of the Product delivered shall be determined by weighing on
state-certified scales located at Owner's manufacturing facility in Xxxxxxxxx
County,
Georgia. Invoices shall include a copy of the weight-ticket covering the
Product being invoiced.
8. WARRANTY
Contractor warrants that the kaolin material when delivered to the
Plant will conform to all chemical and physical properties for the Product
listed in Exhibit A hereto. Contractor warrants that the Product delivered
hereunder shall be free of contaminants and other foreign substances rendering
the Product unsuitable for the economic use of
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Owner. In the event that kaolin material delivered to Owner does not conform to
all chemical and physical properties listed in Exhibit A hereto, or is
contaminated with foreign substances, all such non-conforming kaolin material
shall be removed by Contractor and there shall be no invoice issued by
Contractor for the non-conforming kaolin material.
9. OWNER'S LANDS; RESERVED ORE & CONTRACTOR'S REPRESENTATION OF TITLE AND
INDUCEMENTS TO OWNER:
A. Contractor's Lands. Contractor hereby represents that it holds title
to or the right to mine crude Product located on the real property listed herein
(herein called the "Contractor's Lands") which will be reserved by Contractor
for sale to Owner:
Property Tons of Product
(a) Approximately 70 acres described 2,000,000+ tons
on Exhibit B
(b) 8 acres described 500,000 tons
on Exhibit C
(c) 101.6 acres described on Exhibit D Back Up Tonnage Only
(d) the Xxxxx Tract described on Exhibit E.
Contractor covenants that it has a good and marketable title, in fee
simple or leasehold estate, to the Contractor's Lands, that there are no liens,
mortgages or encumbrances against the same and Contractor warrants the title to
all Product which Owner, its successors and assigns may remove or receive from
the Contractor's Lands for processing and/or sale as against the lawful claims
of all persons whomsoever. Contractor shall provide to Owner evidence, such as a
current title report or title insurance commitment, of (i) Contractor's good and
marketable title to the portions of the Contractor's Lands which Contractor owns
in fee simple and (ii) Contractor's lessor's good and marketable title to the
portions of the Contractor's Lands as to which Contractor holds a leasehold
estate. Also, Contractor shall provide to Owner a copy of the lease agreement
covering those portions of the Contractor's Lands as to which Contractor holds a
leasehold estate and letter signed by the lessor in the form of Exhibit F
attached hereto. Contractor further covenants that hereafter Contractor will not
create nor permit the existence of any liens or encumbrances against the
minerals or surface which will in any way adversely affect the rights of Owner
hereunder. Upon any default of Contractor with respect to the covenants and
warranties herein contained, it is agreed that the Owner shall have the
privilege of paying-off, discharging and satisfying any such lien or encumbrance
and that the amount of any such payment or payments made by Owner for such
purposes, together with interest thereon at the prime rate (as published in the
Wall Street Journal on the date of default declaration) plus two (2) per cent
per year, may be deducted by Owner from the payments herein provided to be paid
to the Contractor.
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Contractor further warrants that (a) Contractor has a good and lawful
right, and full power to convey the Product on the Contractor's Lands and to
authorize entry for the purposes(s) herein set forth, that the same are free
from all encumbrances; (b) the Contractor's Lands connect to adjacent public
roads and all present exits and entrances to the Contractor's Lands via adjacent
public roads are without restriction; (c) Contractor is not a party to any
litigation affecting the Contractor's Lands, the Product thereon, or
Contractor's rights to sell the Product on said Contractor's Lands or any
interest therein and the Contractor knows of no litigation or threatened
litigation affecting the said Product and/or the Contractor's Lands; (d)
Contractor has no knowledge or information of any facts or circumstances that
would adversely affect the use of the Contractor's Lands for mining operations
that are not set forth herein; and (e) that Contractor has not committed, except
as otherwise set forth herein, nor will Contractor in the future commit, any act
or acts which will encumber or cause a lien to be placed against said Product
and/or the Contractor's Lands.
B. Owner's Lands
Owner holds title to or the right to mine crude Product
located on the real property which is designated from time to time by Owner
(herein called the "Owner's Lands") which shall be mined by Contractor pursuant
to the terms of this Agreement.
Owner's Lands and Contractor's Lands are herein sometimes collectively
called the "Subject Properties" or a "Property".
10. INDEMNIFICATION
To the fullest extent permitted by law, the Contractor shall indemnify
and hold harmless the Owner, and agents and employees of Owner from and against
claims, damages, losses and expenses, including but not limited to attorneys'
fees, arising out of or resulting from performance of the Work, provided that
such claim, damage, loss or expense is attributable to bodily injury, sickness,
disease or death, or to injury to or destruction of tangible property (other
than the Work itself) including loss of use resulting therefrom, but only to the
extent caused in whole or in part by negligent acts or omissions or breach of
this Agreement by the Contractor or anyone directly or indirectly employed by
Contractor or anyone for whose acts Contractor may be liable, regardless of
whether or not such claim, damage, loss or expense is caused in part by the
negligence of a party indemnified hereunder.
11. INSURANCE
The Contractor shall purchase from and maintain in a company or
companies lawfully authorized to do business in the jurisdiction in which the
Subject Properties are located such insurance as will protect the Contractor and
Owner from claims set forth below which may arise out of or result from the
Contractor's operations under this Agreement and for which the Contractor may be
legally liable, whether such operations
-7-
be by the Contractor or by a subcontractor or by anyone directly or indirectly
employed by any of them, or by anyone for whose acts any of them may be liable:
A. claims under workers' or workmen's compensation, disability benefits
and other similar employee benefit acts which are applicable to the Work to be
performed;
B. claims for damages because of bodily injury, occupational sickness
or disease, or death of the Contractor's employees;
C. claims for damages because of bodily injury, sickness or disease, or
death of any person other than the Contractor's employees;
D. claims for damages insured by usual personal injury liability
coverage which are sustained (1) by a person as a result of an offense directly
or indirectly related to employment of such person by the Contractor, or (2) by
another person;
E. claims for damages because of injury to or destruction of tangible
property, including loss of use resulting therefrom;
F. claims for damages because of bodily injury, death of a person or
property damage arising out of ownership, maintenance or use of a motor vehicle;
and
G. claims involving contractual liability insurance applicable to the
Contractor's obligations under Paragraph 10.
The insurance required by this paragraph shall be written for not less
than limits of liability specified herein or required by law, whichever coverage
is greater. Coverages shall be written on an occurrence basis and shall be
maintained without interruption from date of commencement of the Work until date
of termination of this Agreement.
Certificates of Insurance acceptable to the Owner shall be filed with
the Owner prior to commencement of the Work. These Certificates and the
insurance policies required by this Paragraph 11 shall contain a provision that
coverages afforded under the policies will not be canceled or allowed to expire
until at least 30 days' prior written notice has been given to the Owner.
Contractor shall provide evidence of continued insurance on the anniversary date
of each policy of insurance.
Contractor shall maintain worker's compensation in at least the minimum
amount stipulated under the
Georgia worker's compensation statutes, including
Employers Liability with a limit of at least:
Statutory -
Georgia Benefits
Employer's Liability $100,000 Each Accident
$1,000,000 Disease - Policy Limit
$1,000,000 Disease - Each Employee
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Contractor shall maintain Commercial General Liability, written on an
occurrence basis, including Contractor's Liability; Independent Contractors
Liability; Contractual Liability; Completed Operations and Products Liability;
Personal Injury Coverage and broad form Property Damage extended to apply to
completed operations; and no property damage liability exclusions pertaining to
loss by explosion, collapse or underground damage.
Bodily Injury and Property Damage Liability:
General Aggregate per Project $2,000,000
Products Completed Operations Aggregate $2,000,000
Personal and Advertising Injury $1,000,000
Each Occurrence $1,000,000
Products Completed Operations shall be maintained for a minimum period
of one (1) year after final payment.
Umbrella/Excess Liability:
Annual Aggregate $5,000,000
Each Occurrence $5,000,000
Automobile Liability including non-ownership and hired car coverage as
well as owned vehicles:
Bodily Injury and Property Damage:
Combined Single Limit $1,000,000
Contractor shall not commence Work at the Subject Properties under this
Agreement until it has obtained all required insurance and until such insurance
has been approved by the Owner. Approval of the insurance by the Owner shall not
relieve or decrease the liability of the Contractor hereunder. Certificates of
Insurance shall be filed with the Contractor prior to commencing Work.
The required insurance shall be written by a Company licensed to do
business in the state in which the Subject Properties are located, at the time
the policy is issued. In addition, the Company shall be acceptable to the Owner.
All liability insurance policies shall name Owner additional insured, IT BEING
THE INTENT THAT SUCH POLICIES AFFORD CONTRACTOR AND OWNER COVERAGE AGAINST THEIR
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NEGLIGENCE ARISING OUT OF PERFORMANCE OF THE WORK, and shall provide that
coverage of Owner thereunder is primary in the event of overlapping coverage
which may be carried by Owner.
The Contractor shall not cause any insurance to be canceled nor permit
any insurance to lapse. All insurance policies shall include a clause to the
effect that the policy shall not be canceled or reduced, restricted or limited
until thirty (30) days after the Owner has received written notice. Certificates
of insurance shall contain transcripts from the proper office of the insurer,
evidencing in particular those insured, the extent of insurance, the location
and operations in which the insurance applies, the expiration date and the above
mentioned notice of cancellation clause. An acceptable Certificate of Insurance
Form shall be insurance industry standard XXXXX Form 27.
All insurance policies supplied by Contractor shall include a waiver of
any right of subrogation of the insurers thereunder against Owner and of any
right of the insurers to any set-off or counterclaim or any other deduction,
whether by attachment of otherwise, in respect of any liability of any person or
entity insured under any such policy.
12. FORCE MAJEURE
A. The term "Force Majeure" as used herein shall mean acts of God,
natural calamities, acts of the public enemy, blockades, insurrections, strikes,
slowdowns, riots, wars, disorders, civil disturbances, fires, explosions,
storms, floods, landslides, washouts, labor or material shortages, boycotts,
breakdowns or damage to plants, equipment or facilities, interruptions to
transport, embargoes, acts of military authorities, acts of local or federal
governmental agencies or regulatory bodies, court actions, arrests and
constraints and, without limitation by enumeration, any other cause or causes
not reasonably within the control and without the fault or negligence of the
party affected which wholly or partly prevents the mining, processing, loading
or transportation of Product by Contractor or the receiving, transporting,
accepting or using of the Product by Owner.
B. If because of Force Majeure, either party hereto is unable to carry
out its obligations under this Agreement and if such party shall promptly give
to the other written notice of such Force Majeure, including a complete
description thereof, then the obligation of the party giving such notice shall
be suspended to the extent made necessary by Force Majeure and during its
continuance; provided, however, that the party giving such notice shall use its
best efforts to eliminate such Force Majeure insofar as possible with a minimum
of delay. No event of Force Majeure shall relieve Owner of its obligation to
make payments due for Product delivered by Contractor under this Agreement.
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13. EVENTS OF DEFAULT
In the absence of the existence of force majeure as defined in
paragraph 12, if any of the following events ("Events of Default") shall occur
and be continuing:
A. Any amount due hereunder, unless being disputed in good faith, shall
remain unpaid for thirty (30) days after becoming due, and the party adversely
affected shall have delivered a notice to the party owing such amount stating
the amount due and unpaid, and the party owing (and not disputing same in good
faith) shall not have paid such amount within thirty (30) days after the
delivery of such notice; or
B. Contractor shall fail or refuse to provide to Owner the amount of
Product as specified from time to time hereunder by Owner at the time requested
by Owner; or
C. Any deliveries of kaolin materials to Owner hereunder shall fail to
meet the quality specifications provided in Exhibit A; or
D. Any other covenant, obligation or agreement by either party
hereunder shall not be performed or observed within twenty (20) days after
written notice of the nonperformance thereof shall have been delivered to the
nonperforming party by the other party; or
E. Either party shall:
(1) Fail to pay any judgment in an amount which would
materially affect the net worth of such party within sixty (60) days after
issuance of a writ of execution upon such final judgment;
(2) Apply for or consent to the appointment of a receiver,
trustee or liquidator of such party or of all or a substantial part of its
assets;
(3) Make a general assignment for the benefit of its
creditors;
(4) Be adjudicated bankrupt or insolvent, or file a voluntary
petition in bankruptcy;
(5) File a petition or an answer seeking reorganization under
any insolvency law; or
(6) File an answer admitting the material allegations of, or
consent to, or default in answering, a petition filed against it in any
bankruptcy, reorganization or insolvency proceeding; or
F. An order, judgment or decree shall be entered by any court of
competent jurisdiction approving a petition seeking reorganization of such party
or appointing a receiver, trustee or liquidator of a party or of all or a
substantial part of its assets and such order, judgment or decree shall continue
unstayed and in effect for a period of thirty (30) consecutive days; or
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G. Any of the representations or warranties made by a party herein
shall be or become untrue in any material respect; or
H. Contractor shall be in default under any lease of any portion of the
Contractor's Lands after expiration of any cure periods permitted by the lease;
then the party adversely affected by such Event of Default shall, in addition to
other remedies available to such party at law or in equity, have any one (1) or
more of the following remedies:
(1) The party adversely affected by such Event of Default may
by written notice delivered to the other party decline to perform under this
Agreement until such Event of Default shall have been cured or shall no longer
exist, without relieving the defaulting party of any of its obligations
hereunder;
(2) The party adversely affected by such Event of Default may,
effective upon twenty (20) days' written notice to such effect delivered to the
other party, terminate this Agreement without relieving the other party from any
liability which shall have accrued or attached on or prior to the effective date
of such termination; and/or
(3) If Contractor is in default for failure to deliver Product
at the time requested or for delivering kaolin materials failing to meet quality
specifications, Owner may recover all damages caused by such failure or Owner
may purchase such quantities of Product from another source and Contractor shall
reimburse Owner within twenty (20) days from invoice for any additional cost
incurred by Owner above the Price Per Ton determined as provided herein for the
Product which Contractor failed to deliver and for any costs incidental to
obtaining such other supply. Termination of this Contract for any of the causes
herein contained shall be without prejudice to any other right or remedy
provided by this Contract or at law or in equity. Failure of either Owner or
Contractor immediately to exercise its rights in any Event of Default will not
constitute waiver of the injured party's rights. Both parties agree to use their
best efforts to minimize the amount of damages that may be incurred as the
result of an Event of Default.
14. NOTICE
All notices under this Contract required or permitted to be given by
Owner to Contractor and all payments to be made by Owner to Contractor hereunder
shall be delivered personally to Contractor or sent to Contractor at
Contractor's address: Xxxxxxx Mining & Land Co., X.X. Xxx 0000, Xxxxxxxxxxxxx,
Xxxxxxx 00000, or at such other address as Contractor may hereafter furnish (by
"Notice" as hereinafter described) to Owner.
All notices herein required or permitted to be given by Contractor to
Owner shall be sent by registered or certified United States mail, return
receipt requested, addressed to Owner at
CARBO Ceramics Inc., Attn. Xxxx X.
Xxxxx, 0000 XxxXxxxxx Xxxxxxxxx, Xxxxx
-00-
0000, Xxxxxx, XX 00000, or at such other address as Owner may hereafter furnish
(by "Notice" as hereinafter described) to Contractor.
15. ENTIRE AGREEMENT
This written instrument contains the entire agreement between the
parties hereto concerning the subject matter hereof, and there are no other
understandings or agreements between said parties or either of them in respect
hereto. No change, addition to or waiver of the terms and provision hereof shall
be binding upon either party unless approved in writing by an authorized
representative of such party, and no modifications shall be effected by the
acknowledgment or acceptance of forms containing other or different terms and
conditions. This Agreement may be executed in any number of counterparts, each
of which shall be deemed an original, but all of which together shall constitute
a single instrument.
16. ASSIGNMENT
This Agreement shall be binding on the legal successors of the parties
hereto, but shall not otherwise be assignable by either party without the
written consent of the other.
17. INDEPENDENT CONTRACTOR
Contractor shall be considered an independent contractor and shall not
be considered a partner, employee, agent or servant of Owner.
18. APPLICABLE LAW
This Agreement and the language used herein shall be construed and
enforced in accordance with the laws of the State of
Georgia.
19. MEMORANDUM OF THIS AGREEMENT
Contractor and Owner agree to execute and record in the real property
records of the county where the Contractor's Lands are located a memorandum of
this Agreement.
20. REPLACEMENT. This Agreement supercedes and replaces that certain Raw
Materials Requirements Agreement dated November 18, 1997, between Owner and
Contractor.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the day and year first above written.
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XXXXXXX MINING & LAND CO.
By /s/ XXX XXXXX
-----------------------------------
Xxx Xxxxx
President & C.E.O.
CARBO CERAMICS INC.
By /s/ XXXX X. XXXXX
-----------------------------------
Xxxx X. Xxxxx
Xx. Vice President, Finance & Admin.
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EXHIBIT A
RAW MATERIAL SPECIFICATION
For
XXXXXXXXX COUNTY PLANT
Chemistry
Calcined Basis
Specification(1) %
Al2O3 [*]
SiO2 [*]
Fe2O3 [*]
TiO2 [*]
CaO [*]
MgO [*]
Na2O [*]
K2O [*]
Moisture [*]
Grit (+325 mesh)2 [*]
Notes:
1. The average properties of blended crude clay delivered must fall within
these parameters such that the target specification can be met for
ongoing plant operations using crude clay storage at the plant site.
2. Grit determined on a dry clay basis, percent of material not passing
through 325 mesh screen is classified as grit. Unblundged clay in the
+325 mesh sample does not count towards the grit level.
* Confidential Information in this Exhibit 10.8 has been omitted and filed
separately with the Securities and Exchange Commission.
