EXHIBIT 10.17
(***) - Denotes confidential text filed with SEC under separate cover.
XXXXXXXX BAY SLAG SALES AGREEMENT
THIS AGREEMENT is dated this 1st day of May, 1995, by and between XXXXXXXX BAY
IRON AND TITANIUM (PROPRIETARY) LIMITED, a South African corporation with
offices at Xxxxxxxx Bay, Natal, South Africa (hereinafter called "RBIT"), and
KRONOS INC., a Delaware corporation with offices at X.X. Xxx 000, Xxxxxxxx Xxxx
Xxxx, Xxxxxxxxxx, Xxx Xxxxxx, 00000, X.X.X. (hereinafter called "BUYER").
W I T N E S S E T H :
WHEREAS RBIT and Buyer entered into an agreement for the purchase and sale of
titanium bearing materials dated as of the 1st day of October, 1989 and amended
January 1, 1991 and February 15, 1994;
WHEREAS RBIT and Buyer wish to renew their agreement;
NOW, THEREFORE, for and in consideration of the covenants and conditions herein
contained, the parties hereto agree as follows, effective January 1, 1995:
ARTICLE I. SCOPE
RBIT agrees to sell and deliver, and Buyer agrees to buy and take delivery
of, titanium-bearing slag (hereinafter called "RB Slag") produced at RBIT's
plant at Xxxxxxxx Bay, Natal, South Africa (hereinafter called "RBIT's
plant") for use in Buyer's chloride-process pigment plants in the
quantities and at the times hereinafter specified and in accordance with
the terms of this agreement (the "Agreement").
ARTICLE II. DEFINITIONS
Unless otherwise indicated, a "ton" is a metric ton of one thousand
kilograms dry weight, a "day", "month" and a "year" are a calendar day,
month and year respectively, "dollars", "cents" and the dollar and cent
signs ("$" and "cents") refer to lawful money of the United States of
America, "Official Samples" has the meaning given to it in Article XI. and
all percentages are based on dry weights. "Taxes and duties" means all or
any levies, imposts, duties, charges, fees, deductions and withholdings
levied or imposed by any national, local or other public body or authority
and "STEM" means the confirmation of availability of sufficient RB Slag for
a particular shipment, at the Xxxxxxxx Bay harbour, on a given date or
period to be stated when such confirmation is requested and given.
ARTICLE III. TERM
This Agreement shall be in effect for a term of six (6) years commencing on
January 1, 1995, up to and including December 31, 2000 (the "Term"),
subject to prior termination as hereinafter provided.
ARTICLE IV. QUANTITY
Buyer shall purchase and take delivery of RBIT shall sell and deliver, the
following quantity of RB Slag during each year of the Term as follows (the
"Contracted Quantity"):
A. (***)
B. (***)
Buyer shall commit to the actual quantity to be purchased in 1996
within the above range by written notice to RBIT on or before April
18, 1995, failing which such quantity shall be determined by RBIT.
C. (***)
Buyer shall commit to the actual quantity to be purchased in 1997
within the above range by written notice to RBIT on or before
September 30, 1996, failing which such quantity shall be determined by
RBIT.
D. (***)
Buyer shall commit to the actual quantity to be purchased in each
of such years within the above range by written notice to RBIT on or
before September 30th of the previous year, failing which such
quantity shall be determined by RBIT.
E. (***)
ARTICLE V. PRICE
A. Basic Prices
The basic price for RB Slag which is sold and delivered hereunder for
each year that this Agreement is in force shall be that amount per ton
FOB (Incoterms 1990) Buyer's Vessel at Xxxxxxxx Bay set forth below
for each such year (the "Basic Price"):
1. For 1995, the Basic Price of RB Slag shall be (***) per ton.
2. For 1996, the Basic Price of RB Slag shall be (***) per ton plus
Escalation as herein defined.
3. For 1997 to 2000 inclusively, the Basic Price of RB Slag shall be
the previous year's Basic Price plus Escalation as herein
defined.
The term "Escalation" as it relates to this Agreement, is defined as
the percentage increase in the All Items, All Urban Consumer Price
Index in the USA ("AUCPI") for the applicable period of December to
December set forth below as reported in the Detailed CPI Report issued
by the US Department of Labor, multiplied by the applicable Basic
Price. If there is no increase, or if there is a decrease in the
AUCPI, Escalation shall be zero. For the year 1996, reference shall
be made to the Escalation for the period of December 1994 to December
1995 and for each of the years 1997 to 2000, to the Escalation for the
period of December to December of the year immediately prior to the
year in question.
B. Price Adjustment for TiO2 Content
The Basic Price established under this Article V. is for RB Slag
containing 85% titanium dioxide (TiO2) content. If the TiO2 content
of a shipment of RV Slag exceeds 85%, the Basic Price shall be
adjusted upwards by 1/170th of the Basic Price for each whole
increment of 0.5% by which the TiO2 content exceeds 85%. If the TiO2
content of such RB Slag is less than 85%, the Basic Price shall be
adjusted downwards by 1/170th of the Basic Price for each decrement of
0.5% or part thereof by which the TiO2 content is less than 85%.
C. The TiO2 content shall be based on RBIT's analyses of the Official
Samples (as defined in Article XI.) subject however, to revisions, if
any, due to an umpire's analysis pursuant to Article XI. Price
adjustments pursuant to this paragraph shall be made as provided
herein and in Article VIII.
D. (***)
ARTICLE VI. SHIPMENTS
A. RBIT shall be responsible for arranging the transport of RB Slag from
its plant to the stockpile area at the loading dock provided by
Portnet at Xxxxxxxx Bay, which shall be solely responsible for loading
RB Slag onboard Buyer's Vessel. Shipments shall be as ordered by and
pursuant to the instructions of Buyer as the same shall be agreed to
by RBIT. Buyer shall obtain any import licenses on or other documents
that may be required to import RB Slag into the country of
destination. RBIT shall obtain any export license on or other
documents that may be required to export RB Slag from South Africa.
B. RBIT and Buyer shall agree on an annual shipping schedule. Buyer
shall arrange for and furnish a bulk cargo vessel (herein called
"Buyer's Vessel") for each shipment. Notwithstanding the agreed
shipping schedule, Buyer must request and receive STEM from RBIT in
respect to each shipment at least one(1) month prior to the arrival of
Buyer's Vessel at Xxxxxxxx Bay. Buyer shall also provide RBIT with a
telefaxed notice of arrival of each of Buyer's Vessels at least two
(2) weeks prior to its estimated time of arrival at Xxxxxxxx Bay.
C. In the event RBIT has given STEM to Buyer and if RB Slag is not
available for loading at the stockpile area provided by Portnet at
Xxxxxxxx Bay on the date for which STEM has been given and if
demurrage or dead freight is incurred as a result of such non-
availability, RBIT shall pay Buyer demurrage or dead freight at the
rate specified in Buyer's Charter Party. In arranging for any Buyer's
Vessel, Buyer will use its best efforts to have the terms of the
Charter Party permit RBIT, in the case of a shortfall of RB Slag at
the Xxxxxxxx Bay harbour, to elect between having Buyer's Vessel:
a) wait for arrival of RB Slag at the loading dock and thereby incur
demurrage; or
b) load a portion of a shipment of RB Slag and thereby incur dead
freight.
In order to facilitate RBIT's decision, Buyer shall promptly advise
RBIT, on request, of the applicable demurrage or dead freight rates.
RBIT's decision shall be made and notified to Buyer at the latest on
the date for which STEM has been given. In no event shall RBIT be
liable for any losses, costs or damages in excess of such demurrage or
dead freight rates, in the event of non-availability of RB Slag as
defined in this Article VI.
ARTICLE VII. TITLE AND RISK OF LOSS
Title to and risk of loss in RB Slag shall pass to Buyer when the RB Slag
has effectively passed the ship's rail of Buyer's Vessel at the loading
dock at Xxxxxxxx Bay.
ARTICLE VIII. INVOICING AND PAYMENT
A. Regular Payments
Unless otherwise agreed, payment for RB Slag shall be made by Buyer in
U.S. dollars by telegraphic transfer to RBIT's account (***) at
Citibank N.A., 000 Xxxx Xxxxxx, Xxx Xxxx, XX 00000, XXX, naming RBIT
as beneficiary, or such other account as RBIT shall notify to Buyer,
within (***) days of receipt by Buyer of the following documents:
1. RBIT's commercial invoice covering the shipment, based on the
assumption that the TiO2 content of RB Slag is 85%;
2. Surveyor's certificate of mass (weight certificate);
3. Full set of clean on-board ocean bills of lading covering the
shipment by Buyer's Vessel in question, designating RBIT as
shipper and Buyer or any affiliated company designated by Buyer
as consignee; and
4. Such other documentation and papers as may be required to clear
RB Slag for shipment from South Africa to the port of
destination.
The above-mentioned documents shall be forwarded to Buyer's affiliate
company to which shipment is being made. A copy of Item 1 shall
simultaneously be sent to : Controller, Kronos Inc., 0 Xxxxxxxxxxx
Xxxxx, 00000 Xxxxxxxxxx Xxxxx, Xxxxxxx, Xxxxx 00000-0000. RBIT shall
accept payment from any of Buyer's affiliate companies, but Buyer
shall be primarily and separately liable for all sums due under this
Agreement.
B. Final Invoice
Any price adjustment which may be necessary as a result of the outcome
of RBIT's analysis of the Official Sample shall be embodied in a final
invoice forwarded to Buyer. In the event of a debit to Buyer, the
final invoice shall be presented, and payment by Buyer shall be
effected, in the same manner as in Article VIII.A. above. In the case
of a credit to Buyer, RBIT shall remit the relevant amount to Buyer by
telegraphic transfer within (***) days of preparation of the final
invoice.
C. Final Annual Invoice and Payment
By January 31 of each year, RBIT shall prepare and present a Final
Annual Invoice relating to the previous year, which Final Annual
Invoice shall reflect amounts due, if any, calculated as provided for
in Article IV.B. (***)
Payment by Buyer of the total amount due, if any, on the Final Annual
Invoice shall be effected by telegraphic transfer to RBIT within (***)
days of Buyer's receipt of such Final Annual Invoice.
ARTICLE IX. SPECIFICATIONS
A. RB Slag shall contain at least 84%, but typically 85%, equivalent TiO2
by weight, determined as set forth in ARTICLE XI. of this Agreement.
B. RB Slag shall meet the following analyses:
1. Maximum chromium oxide (CR2O3)content of 0.30% by weight;
2. Maximum vanadium pentoxide (V2O5)content of 0.60% by weight;
3. Maximum reduced titanium dioxide (Ti2O3) content of 35% by
weight;
4. Maximum manganese oxide (MnO) content of 2.5% by weight;
5. Maximum calcium oxide (CaO) content of 0.20% by weight;
6. Maximum magnesium oxide (MgO) content of 1.30% by weight;
7. Maximum moisture (H2O) content of 0.2% by weight.
C. The specifications set out in Article IX.A. and B. shall be referred
to in this Agreement as the "Specifications."
ARTICLE X. WARRANTY
A. RBIT warrants that RB Slag sold and delivered hereunder shall conform
to the Specifications set forth in Article IX. hereof.
B. In the event that any shipment of RB Slag sold and delivered hereunder
does not conform to the said Specifications and in the event the
parties are unable to agree on an equitable price adjustment, RBIT
shall, at its cost and expense, remove or otherwise dispose of such
non-conforming RB Slag and replace it with an equivalent quantity of
RB Slag which meets the Specifications. RBIT's obligation to remove
or dispose of and replace non-conforming RB Slag shall not be
applicable in the event Buyer fails to give notice to RBIT of such
non-conformance as provided for in Article XI.C.
C. The warranty and remedy expressed in this Article X. is the sole and
exclusive warranty made by RBIT with respect to RB Slag to be sold and
delivered under this Agreement and the exclusive remedy available to
Buyer, whether based on strict liability, negligence, breach of
express or implied warranty or any other theory or cause of action.
RBIT makes no other representation or warranty of any kind other than
as stated herein and this warranty may not be modified by any agent or
other representative or RBIT.
D. RBIT shall not be responsible for any damages whatsoever, whether
direct, indirect, consequential on or incidental, relating directly or
indirectly to the use, sale and /or resale of any RB Slag. RBIT's
sole obligation in the event of sale and delivery of non-conforming RB
Slag shall be that set forth in this Article X. Buyer agrees to
indemnify and hold RBIT harmless from and against any claims, losses,
damages, costs, expenses or liability of whatsoever nature from third
parties arising out of or in connection with such use, sale and / or
resale of any RB Slag.
ARTICLE XI. INSPECTION, WEIGHING, SAMPLING AND ANALYSIS
A. Inspection and Weighing
Bureau Veritas, or another mutually agreed recognized independent
surveyor at Xxxxxxxx Bay, shall inspect Buyer's Vessel for cleanliness
and/or hold protection and is entitled to reject any vessel not found
to be suitable for loading of RB Slag. Such rejection shall be for
Buyer's account. Time taken for such inspection shall not count as
laytime. Such surveyor shall determine the weight of RB Slag loaded
aboard Buyer's Vessel, which shall include moisture. The weight
determined shall be adjusted for the moisture content on the basis of
the analyses of the Official Sample, with the resulting dry weight to
be the basis for invoicing RB Slag for payment by Buyer. One-half of
surveyor's cost of independent cargo surveys shall be paid by Buyer
and shall be included in the commercial invoice referred to in Article
VIII.A.1.
It is acknowledged that Portnet has installed an assized weightometer
in the belt loading system. If and when such installation is fully
functional and its accuracy has been proven, RBIT and Buyer will
discuss the use of such weightometer for determination of the weight
of RB Slag loaded aboard Buyer's Vessel.
B. Sampling
1. Each shipment of RB Slag delivered to Buyer's Vessel at Xxxxxxxx
Bay shall be sampled by Bureau Veritas or such other independent
testing laboratory as may be agreed between the parties. Such
laboratory shall take and distribute representative samples
(hereinafter called "Official Sample(s)") from each shipment in
accordance with the "Sampling and Sample Preparation Procedure",
set forth in Exhibit "A", Procedure "SAM0078", attached hereto
and made a part hereof.
2. The fees for services of such independent testing laboratory
shall be borne equally by RBIT and Buyer and shall be included in
RBIT's commercial invoice to Buyer referred to in Article
VIII.A.1.
C. Analysis
1. Method of Analysis - All analyses shall be made by the methods
outlined in Exhibit "B", Procedure "SAM004", "SAM051", Exhibit
"E", Procedure "SAM079" and Exhibit "F", Procedure "SAM008",
which are attached hereto and made a part hereof.
2. Analysis by RBIT - RBIT shall analyse the Official Samples and
the result of such analysis for each shipment shall be used to
determine any price adjustment of RB Slag and shall accompany the
final invoice forwarded to Buyer in accordance with Article
VIII.B.
3. Analysis by Buyer - Buyer may, but shall not be obligated to,
analyse the Official Samples. Unless Buyer notifies RBIT, within
sixty (60) days of receipt of an Official Sample, that Buyer's
analysis indicated that RB Slag fails to meet the Specifications
contained in ARTICLE IX. or that the TiO2 content is more than
one-half percent (0.5%) different from RBIT's analysis, the
results of RBIT's analysis shall be final and conclusive.
4. Umpire Procedure - Should Buyer's analysis of the Official Sample
indicate that RB Slag does not meet the Specifications contained
in Article IX. or that the TiO2 content of RB Slag is more than
one-half percent (0.5%) different from RBIT's analysis, Buyer may
so advise RBIT and RBIT shall request the independent testing
laboratory referred to above to forward for analysis the retained
Official Sample to such umpire analyst (being and independent
testing laboratory) as shall be agreed to from time to time by
the parties. The parties hereby agree that Inspectorate Samplers
& Analysts Inc., X.X. Xxx 00, 000 Xxxxx Xxxx Xxxxxx, Xxxxxx,
Xxxxxxxxxxxx X.X.X. 00000 shall be the umpire analyst until such
time as the parties otherwise agree.
5. Settlement - The umpire's analysis as to TiO2 content and that of
Buyer or RBIT, whichever is in closer agreement to the umpire's
analysis, shall be averaged as the basis for final settlement;
provided that if the umpire's analysis lies exactly halfway
between Buyer's and RBIT's analyses, the umpire's analysis shall
be the basis for final settlement. If an umpire's analysis is
required on any Specification other than TiO2, the umpire's
analysis and that of Buyer or RBIT, whichever is in closer
agreement to the umpire's analysis, shall be averaged as the
basis for final settlement; provided that if the umpires's
analysis lies exactly halfway between the Buyer's and RBIT's
analyses, the umpire's analysis shall be the basis for final
settlement. If such analysis determines that RB Slag does not
meet each of the Specifications contained in Article IX., the
parties shall proceed as described in Article X. of this
Agreement. The cost of an umpire's analysis shall be borne by
the party whose analysis varies most from the umpire's analysis
unless such variations are equal whereupon the cost shall be
borne equally between RBIT and Buyer.
D. Revisions of Sampling and Analytical Procedures
The procedures set forth in the Exhibits referred to in this Article
are believed to be the most satisfactory ones now available. In the
event better procedures become available, each of said Exhibits may be
revised with the written approval of Buyer and RBIT.
ARTICLE XII. ARBITRATION
A. Any dispute between RBIT and buyer arising out of or related to this
Agreement or the performance hereof, including contentions that a
party hereto has failed in the performance of its obligations, shall,
unless settled by mutual agreement, be referred for conciliation and,
failing settlement, for binding arbitration under the Rules of the
International Chamber of Commerce ("ICC"). The parties agree that
such conciliation and arbitration shall take place in London, England.
The arbitration shall be presided over by a single arbitrator chosen
by the parties, failing which, by three arbitrators of which number
each party shall appoint one and the third arbitrator (who shall serve
as the chairman of the arbitration tribunal) shall be chosen by the
two arbitrators appointed by the parties, within ten (10) days after
their appointment.
B. In the event that the arbitration panel has three members and the
first two arbitrators cannot agree on the third arbitrator within
thirty (30) days of their nomination, or that one party fails to
nominate its arbitrator within sixty (60) days after the date on which
a request for arbitration has been served, Such arbitrator shall be
nominated by the International Court of Arbitration. Such arbitrator
shall be of British nationality and of the legal profession.
C. In the event of a difference between the arbitrators, the decision of
the majority shall constitute the judgment of the arbitrators. A
judgment of any court of law of competent jurisdiction may be entered
upon any award made by the arbitrators.
D. In the event one party fails to cooperate in the arbitration
proceedings by refusing to attend before the arbitration panel, the
other party shall be entitled, upon thirty (30) days notice, to
present evidence before the arbitrator(s) in the absence of such party
and the decision of the arbitrator(s) shall be binding on such party
notwithstanding its failure to cooperate or participate therein.
ARTICLE XIII. TAXES AND DUTIES
All South African taxes and duties now or hereafter imposed on the export
of RB Slag, in connection with this Agreement, shall be for the sole
account of RBIT. All other taxes or duties now or hereafter imposed in
connection with this Agreement, shall be for the sole account of Buyer.
ARTICLE XIV. PATENTS
A. RBIT shall protect and hold Buyer harmless against any and all claims
that RB Slag in the state or form as sold under this Agreement
infringes or allegedly infringes any product claims of any South
African patent owned by third parties. RBIT shall, at its own cost
and expense defend any and all suits which may be brought against
Buyer on account of an alleged infringement of such South African
patent or patents and RBIT shall pay any and all fees, including
reasonable attorney's fees, costs and damages awarded in said suits;
provided, however, that the total liability for damages under this
ARTICLE XIV. shall in no event exceed the aggregate sales price of RB
Slag sold to Buyer during the year in which such alleged infringement
commenced.
B. RBIT's obligations pursuant to this Article XIV. shall be conditional
upon Buyer giving prompt notice to RBIT of any claims by third parties
of any such alleged infringement and of all information available to
Buyer in respect of such alleged infringement or claim.
ARTICLE XV. FORCE MAJEURE
A. In the event of any contingency which is beyond the reasonable control
of RBIT or Buyer including, but not limited to (i) any strike,
lockout, industrial dispute, difference with workmen, accident, fire,
explosion, drought, earthquake, flood, mobilization, war (whether
declared or undeclared), act of any belligerent in any such war, civil
commotion, political demonstration or disturbance, riot, rebellion,
revolution or blockage, (ii) any requirement, regulation, restriction,
intervention, or other act of any Government, whether legal or
otherwise, (iii) any inability to secure or delay in securing export
licenses or import licenses, cargo space or other transportation
facilities necessary for the shipment of receipt of RB Slag or fuel or
other supplies or material including water, ilmenite ore or electric
power necessary for the operation of the mines and plants where RB
Slag is produced or consumed, (iv) any delay in or interruption to
transportation by rail, water or otherwise, (v) any damage to or
destruction of such mines or plants or any breakdown of plants or
machinery of RBIT or Buyer, or (vi) any other contingency which is
beyond the reasonable control of RBIT or Buyer, whether or not of the
nature or character hereinbefore specifically enumerated, which event
delays or interferes with the performance of this Agreement or the
consumption of RB Slag (an event of "Force Majeure"), then such event
shall be considered sufficient justification for delay in making
shipment or delivery or taking delivery or performance hereunder
(other than the payment of money), in whole or in part, until such
event ceases to exist, and this Agreement shall be deemed suspended
for so long as such event delays or interferes with the performance
hereof, provided that prompt notice (in no event later than one week
of the occurrence of the event) of the commencement and end of any
such event is given by the party affected to the other party. Any
delay or interference which affects RBIT's ability to supply RB Slag
to customers shall entitle RBIT to allocate equitably any available RB
Slag among customers.
B. In the event of a Force Majeure, the obligation of RBIT to sell and
deliver and of Buyer to buy and to take the Contracted Quantity of RB
Slag with respect to any year shall, unless otherwise agreed between
the parties, terminate at the end of the year as to such quantities of
RB Slag not shipped by the end of the year due to such Force Majeure
event. Nothing contained in this Article shall require Buyer to pay
for, or RBIT to make up or compensate for, any RB Slag not delivered
due to the application of this Article XV.
ARTICLE XVI. DEFAULT AND TERMINATION
A. A "default" shall mean any failure by either party to make any payment
or to perform any obligation pursuant to this Agreement for any reason
other than an event of Force Majeure as defined in ARTICLE XV. and the
party in default has failed to remedy or diligently commenced to
remedy such failure to pay or to perform within ninety (90) days after
receiving written notice thereof from the other party. In the event
of a default by one party, the other party not in default shall have
the right (subject to the defaulting party's right to cure its default
pursuant to this Article) to terminate this Agreement forthwith by
providing notice to such effect to the defaulting party.
B. In the event of a default arising from a breach of Buyer's duty to pay
for RB Slag delivered or for the total amount of the Contracted
Quantity in any particular year, RBIT shall have the right to seek
damages for all loss or damage sustained by the default. In addition,
RBIT shall have the right (subject to Buyer's right to cure its
default pursuant to this Article) to terminate this Agreement
forthwith by providing notice to such effect to Buyer. In no event
however shall Buyer be liable for consequential, indirect, incidental
or special damages as a result of a default for failure to pay under
this Agreement.
In the event of any default by RBIT arising from a failure to deliver
RB Slag pursuant to this Agreement, RBIT (subject to RBIT's right to
cure its default pursuant to this Article) shall compensate the Buyer
for all loss or damage actually sustained as a direct result of the
failure to deliver, including, but not limited to, the cost difference
of securing an alternate supply of RB Slag, but excluding indirect,
consequential, punitive or contingent damages of the default Buyer may
suffer therewith including, but not limited to loss of revenue or
profits as a result of Buyer's inability to operate, or shut down of
its operations, loss of use of equipment, or cost of substitute
equipment, claims of third parties, and the like. In addition, Buyer
shall have the right (subject to RBIT's right to cure its default
pursuant to this Article) to terminate this Agreement forthwith, by
providing notice to such effect to RBIT, in the event RBIT does not
deliver at least 90% of the Contracted Quantity of RB Slag in any year
thereof.
C. In the event either party becomes bankrupt or insolvent, commits any
act of bankruptcy or insolvency, makes any proposal, arrangement or
compromise with its creditors or if it is liquidated or if its charter
of incorporation is relinquished or canceled, the other party shall
have the right to immediately terminate this Agreement without notice
or demand.
D. The rights of termination contained in this ARTICLE XVI. are in
addition to the right to demand damages specifically as permitted in
this Agreement and to any other rights and remedies as are available
in this Agreement.
ARTICLE XVII. WAIVER OF DEFAULT
Any failure by either party to give notice in writing to the other party of
any breach or default in any of the terms or conditions of this Agreement
shall not constitute a waiver thereof, nor shall any delay by either party
in enforcing any of its rights hereunder be deemed a waiver of such rights
nor shall a waiver by either party of any defaults of the other party be
deemed a waiver of any other or subsequent defaults.
ARTICLE XVIII. NOTICES
Any notice to be given to either party under the terms of this Agreement
shall be deemed to have been given if delivered by courier service or
transmitted by telefax and subsequently confirmed by prepaid registered
mail to the respective addresses or telefax numbers given below:
Notices to RBIT shall be addressed:
Xxxxxxxx Bay Iron and Titanium (Pty.) Limited
Post Office Xxx 000,
Xxxxxxxx Xxx 0000,
Xxxxx, Xxxxx Xxxxxx
Attention: General Manager, Marketing
Telefax Number: x00.000.00000
with a copy of any such notice addressed to:
QIT-Fer et Titane Inc.
000 Xxxxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxxx, Xxxxxx
Xxxxxx X0X 0X0
Attention: Director, Sales & Marketing, Titania Slag
Telefax Number: x0 (000) 000-0000
Notices to Buyer shall be addressed:
Kronos Inc.
X.X. Xxx 000
Xxxxxxxxxx, Xxx Xxxxxx
X.X.X. 00000
Attention: President
Telefax Number: x0 (000) 000-0000
with a copy of such notice to:
Kronos Inc.
0 Xxxxxxxxxxx Xxxxx
00000 Xxxxxxxxxx Xxxxx
Xxxxxxx, Xxxxx
X.X.X. 00000-0000
Attention: Director of Purchasing
Telefax Number: x0 (000) 000-0000
or to such other addressor telefax number as the addressee shall have
previously furnished in writing to the addressor. All notices shall be
deemed to have been received on the day of delivery, if delivered, or on
the day of transmission, if sent by telefax, during normal business hours
(9:00 am to 5:00 pm) of the recipient, failing which, such notice shall be
deemed to have been received on the next business day.
ARTICLE XIX. ASSIGNMENT
A. In the event of a sale by Buyer of any of its chloride-process pigment
plants to an unrelated third party, Kronos agrees to obtain as an
integral part of such sale, the assumption by the purchaser of the
obligation to purchase from RBIT upon the same terms and conditions as
in this Agreement, the RB Slag volumes corresponding to such plant,
based on its average annual consumption of the 24 months preceding
such sale.
B. Except as provided in Article XIX.A. above, no party may assign its
rights or obligations under this Agreement without the prior written
consent of the other party. The preceding sentence shall not apply to
assignments made to parents, subsidiaries or related corporations of
the parties hereto, providing that the party executing this Agreement
shall remain primarily responsible for performance of its obligations
hereunder unless such is waived in writing by the other party.
ARTICLE XX. ENTIRE AGREEMENT; AMENDMENT, MODIFICATION
This Agreement states the entire understanding between the parties hereto
with respect to the subject matter hereof, and there are no agreements or
understandings, oral or written, express or implied with reference to the
subject matter hereof that are not merged herein or superseded hereby.
This Agreement shall, effective January 1, 1995, replace the agreement
between RBIT, QIT-Fer et Titane GmbH and Buyer dated October 1, 1989, as
amended on January 1, 1991 and February 15, 1994. This Agreement may not
be changed, modified or supplemented in any manner orally or otherwise
except by an instrument in writing signed by a duly authorized
representative of each of the parties hereto. The parties recognize that,
for administrative purposes, documents such as purchase orders,
acknowledgments, invoices and similar documents may be used during the time
this Agreement is in force. In no event shall any term or condition
contained in any such administrative documents be interpreted as amending
or modifying the terms of this Agreement whether such administrative
documents are signed or not.
ARTICLE XXI. GOVERNING LAW
This Agreement shall be governed by and construed under the substantive and
procedural laws of South Africa in all respects, including construction,
validity and performance.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
by their duly authorized respective representatives, as of the day and year
first hereinabove written.
XXXXXXXX BAY IRON & TITANIUM (PROPRIETARY) LIMITED
By: /s/ X. X. Xxxxxxxxxx
Name: X. X. Xxxxxxxxxx
Title: Managing Director
KRONOS INC.
By: /s/ X. X. Xxxxxx
Name: X. X. Xxxxxx
Title: Director Materials Management and Business Development
