CONFIDENTIAL TREATMENT REQUESTED
EXHIBIT 10.11
**Confidential portions of this Exhibit have been omitted pursuant to the Rules
and Regulations of the Securities and Exchange Commission. The symbol "[+++++]"
has been used to identify information which is the subject of a Confidential
Treatment Request.**
SLAG SALES AGREEMENT
--------------------
THIS AGREEMENT is made as of this 10th day of July, 1997 by and between
RICHARDS BAY IRON AND TITANIUM (PROPRIETARY) LIMITED, a South African
corporation with offices at Richards Bay, Natal, South Africa (hereafter
"RBIT"), and TIOXIDE S.A. (PTY) LIMITED, a company with an office in
Umbogintwini, South Africa (hereafter, the "Buyer").
WHEREAS in consideration for RBIT's undertaking to produce a special
[+++++] titanium-bearing slag product and to supply Buyer's [+++++] for its
pigment plant at Umbogintwini, South Africa with this special product, Buyer
wishes to enter into an Agreement to satisfy such slag requirements [+++++] from
RBIT;
WHEREAS Buyer has equipped its pigment plant at Umbogintwini, South Africa
with special facilities to enable the transportation, delivery, handling and use
of the special slag product and RBIT has equipped its facility at Richards Bay,
South Africa to produce, handle and ship the special slag product;
WHEREAS RBIT agrees to sell such quantities of the special slag product as
Buyer requests and Buyer agrees to fulfill from RBIT [+++++] requirements to
CONFIDENTIAL TREATMENT REQUESTED
[+++++] during the term of this Agreement, within a specified range of annual
volumes;
WHEREAS both Buyer and RBIT require long notice of any cancellation of
supply or purchase of the special slag product as both parties would be required
to make significant changes to their facilities and operations to produce or
accept alternative products;
NOW THEREFORE, for and in consideration of the covenants and conditions
herein contained, the parties hereto agree as follows, effective January 1,
1997:
ARTICLE I.
SCOPE
RBIT agrees to sell and deliver, and Buyer agrees to buy and take delivery
of, a special titanium-bearing slag (hereinafter "Product"), produced at RBIT's
plant at Richards Bay, Kwazulu Natal, South Africa (hereinafter "RBIT's plant"),
for use at Buyer's pigment plant at Umbogintwini, South Africa (hereinafter
called "Buyer's plant"), in the quantities and at the times specified herein 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 "month," "quarter" and a "year" are a calendar month, a
calendar
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quarter and a calendar year, respectively, and "dollars," "cents" and the dollar
and cents signs ("$" and "c") 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. "Party" means RBIT as one party and Buyer
as one party. "STEM" shall mean that Product will be available and ready for
loading at the point of shipment on the date stated and in the quantity
specified.
ARTICLE III.
TERM
A. Unless terminated earlier in accordance with provisions hereof, this Agree
ment shall be for an initial term of three (3) years commencing on January
1, 1997 and ending on December 31, 1999 and shall automatically continue in
full force and effect for additional periods of one (1) month each until
terminated by either party giving to the other party not less than three
(3) years prior written notice.
B. In the event either party shall become bankrupt, insolvent, commit any act
of bankruptcy or insolvency, or compromise with its creditors, then the
other party shall have the option, without notice or demand, to cancel this
Agree ment and demand damages hereunder. The preceding rights are without
prejudice to any other rights and remedies as are available to the parties
hereunder or otherwise under the law.
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C. In the event of permanent closure of Buyer's plant, Buyer or Seller shall
have the right to terminate this Agreement. If regulatory conditions
prescribed by government preclude consumption of Product at Buyer's plant,
both parties undertake to adapt their Product or process, as the case may
be, to permit compliance with such regulations within a reasonable time,
failing which Buyer or Seller shall have the right to terminate this
Agreement. Buyer shall inform RBIT at the earliest opportunity of either
circumstance.
ARTICLE IV.
QUANTITY
A. In consideration of RBIT's agreement to supply Product in such quantities
as Buyer may request pursuant to Article IV.B Buyer shall [+++++].
B. Buyer shall, no later than September 30 in each year of the Agreement,
advise RBIT in writing of its total requirement for Product for Buyer's
plant in the coming year, subject to an annual maximum of [+++++] tons and
an annual minimum amount of [+++++] tons (the "Contracted Quantity"). Such
Contracted Quantity shall be binding on the parties.
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ARTICLE V.
PRICE
A. Basic Price
-----------
1. The basic price for Product of [+++++] TiO\\2\\ for [+++++] shall be
[+++++] per ton, Ex Works RBIT's plant at Richards Bay (the "Basic
Price"). For each successive year of the Agreement the Basic Price shall
be [+++++].
2. The term "Escalation" as it relates to this Agreement is defined as the
percentage increase in the All Items, All Urban Consumer Price Index as
reported in the Detailed CPI Report issued by the US Department of Labor
("AUCPI"), for the period of December to December imme diately preceding
the applicable year, multiplied by the price to which such Escalation
must be added. If there is no increase, or if there is a decrease in the
AUCPI, Escalation shall be zero. For the year 1998, reference shall be
made to the period of December 1996 to December 1997. For each
subsequent year, reference shall be made to the period of December to
December immediately preceding the applicable year.
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B. Adjustment for TiO\\2\\ Content
-------------------------------
1. The Basic Prices established under this Article V. are for Product which
meets the specifications set forth in Paragraphs A and B of Article IX
(hereinafter the "Specifications"). If the TiO\\2\\ content of Product
exceeds eighty-five percent (85%), the price shall be adjusted upwards
by one-one hundred seventieth (1/170th) of the Basic Price for each
whole increment of one-half percent (0.5%) by which the TiO\\2\\ content
of Product exceeds eighty-five percent (85%). If the TiO\\2\\ content of
Product is less than eighty-five percent (85%), the price shall be
adjusted downwards by one-one hundred seventieth (1/170th) of the Basic
Price for each whole decrement of one-half percent (0.5%) or part
thereof by which the TiO\\2\\ content of Product is less than eighty-
five percent (85%).
2. If the insoluble TiO\\2\\ content of Product exceeds two percent (2%),
the price shall be adjusted downwards by one-one hundred seventieth
(1/170th) of the Basic Price for each increment of one-half percent
(0.5%) or part thereof by which the insoluble TiO\\2\\ content exceeds
two percent (2%).
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ARTICLE VI.
SHIPMENTS
Shipments shall be made by railcars provided by Buyer. The terms and
conditions of shipments shall be mutually agreed upon by the parties. Shipments
shall be spread more or less evenly over the year. Cleanliness of railroad cars
shall be solely Buyer's responsibility.
ARTICLE VII.
TITLE AND RISK OF LOSS
Title to and risk of loss in Product shall pass to Buyer upon loading on
board railcars at RBIT's plant. Once the title to and risk of loss in Product
has passed to Buyer, RBIT shall not be responsible for any loses or damages of
any kind and howsoever arising in connection with Product or otherwise, except
as expressly provided in this Agreement.
ARTICLE VIII.
INVOICING AND PAYMENT
A. Regular payments
----------------
RBIT shall invoice buyer for shipments on a monthly basis, on the assump
tion that the TiO\\2\\ content of each shipment is [+++++] and payment
shall be made within fifteen (15) days of the date RBIT's invoice in South
African rands converted at the spot rate of exchange for U.S. dollars as
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reported by the First National Bank Limited at the close of business on the
last day of the previous month for deliveries during any month. RBIT shall
accept payment from any of Buyer's affiliate companies, but Buyer shall
remain 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. In the case 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 VII.A above. In the case of credit to Buyer, RBIT shall remit the
relevant amount to Buyer by telegraphic transfer within thirty (30) days of
preparation of the final invoice.
C. Other Invoices and Payments
---------------------------
Payment of other amounts due hereunder, such as the fees referred to in
Article XI.A, XI.B.2 and XI.B.5 herein, shall be made by Buyer to RBIT upon
receipt of an invoice for such amounts.
ARTICLE IX.
SPECIFICATIONS
A. The Product shall contain a minimum of [+++++] TiO\\2\\ by weight
determined as set forth in Article XI of this Agreement.
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B. The Product shall meet the following specifications:
1. Maximum [+++++] content of [+++++] by weight;
2. Maximum [+++++] content of [+++++] by weight;
3. Maximum [+++++] content of [+++++] by weight;
4. Maximum [+++++] content of [+++++] by weight;
5. Maximum [+++++] of [+++++] and typically of [+++++] by weight.
C. The specifications set out in Article IX.A and B above shall be referred to
in this Agreement as the "Specifications."
ARTICLE X.
WARRANTY
A. RBIT warrants that Product sold and delivered hereunder shall conform to
the Specifications set forth in Article IX hereof.
B. In the event that any shipment of Product sold and delivered hereunder does
not conform to the 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 Product and
replace it as soon as practicable but in any event within ninety (90) days
of notification, with an equivalent quantity of Product which meets the
Specifications. The obligation to remove or dispose of and replace non-
conforming Product shall
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not be applicable in the event Buyer fails to give notice of such
non-conforming Product as provided for in Article XI.C.
The warranty and remedy expressed in this Article X is the sole and
exclusive warranty made by RBIT with respect to the product to be delivered
under this Agreement. RBIT makes no other warranty, express, implied
(including any warranty of merchantability or fitness for a particular
purpose), statutory or otherwise.
C. RBIT shall not be responsible for any damages whatsoever, whether direct,
indirect, consequential or incidental, relating directly or indirectly to
the use, sale and/or resale of any product. RBIT's sole obligation in the
event of sale and delivery of non-conforming product 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 product.
ARTICLE XI.
INSPECTION, WEIGHING, SAMPLING AND ANALYSIS
A. Inspection and Weighing
-----------------------
1. RBIT shall determine the weight of Product by weighing the railroad car,
before and after loading, on RBIT's government approved,
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inspected and certified track scale. The weight so determined shall
then be adjusted for moisture content and the resulting dry weight will
be the final weight on which payment shall be made. The cost of
weighing shall be for RBIT's account.
2. Buyer shall be entitled, at its own expense, to verify the accuracy of
the weighing equipment referred to in paragraph XI.A.1. In the event
such verification reveals a weight discrepancy of more than one percent
(1%), the parties shall negotiate a mutually acceptable price
adjustment, failing which, the matter shall be referred to arbitration.
B. Sampling
--------
1. Sampling - Each shipment of Product loaded onto railcars at RBIT's Plant
at Richards Bay shall be sampled by Bureau Veritas or such other
independent testing laboratory as may be agreed between Buyer and RBIT.
Such independent laboratory shall take and distribute representative
samples consisting of a monthly composite of individ ual shipment
samples (herein called "Official Sample(s)") in accor dance with the
"SATP Slag Sampling and Sample Preparation Proce dure," as set forth in
Exhibit "A" Procedure "SAM 080," attached hereto and made a part hereof.
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2. Lab Fees - The fees for services of such independent testing laboratory
shall be borne equally by RBIT and Buyer. Buyer shall pay RBIT for
Buyer's one-half of such fees within seven (7) days after receipt of an
invoice therefor.
C. Analysis
--------
1. Methods of Analysis - All analyses shall be made by the methods outlined
in Exhibit "B" Procedure "SAM 004," Exhibit "C" Procedure "SAM 006,"
Exhibit "D" Procedure "SAM 008," Exhibit "E" Proce dure "SAM 001,"
Exhibit "G" Procedure "SAM 051," which are attached hereto and made a
part hereof.
2. Analysis by RBIT - RBIT shall analyse the Official Samples and the
results of such analysis shall be provided to Buyer not later than
twenty-one (21) days following the end of the month in which the
shipments were made.
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 indicates that
Product fails to meet the Specifications or that the TiO\\2\\ content is
more than [+++++] different from RBIT's analysis, the results of RBIT's
analysis shall be final and conclusive.
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4. Umpire Procedure - Should Buyer's analysis of the Official Samples
indicate that Product does not meet the Specifications or that the
TiO\\2\\ content of Products is more than [+++++] different from RBIT's
analysis, Buyer may so advise RBIT, who will then request the
independent testing laboratory referred to above to forward for analy
sis its retained Official. Sample to such umpire analyst (being an
independent testing laboratory) as shall be agreed to from time to time
by the parties. The parties hereby agree that Inspectorate Griffith
Limited, 2 Perry Road, Witham, Essex, CN8 3TU, U.K., shall be the
initial umpire analyst.
5. Settlement - The umpire's analysis as to TiO\\2\\content and that of
Buyer or RBIT, whichever is in closer agreement to the umpire's
analysis, shall be averaged to establish the revised analysis for the
shipment. If the umpire's analysis is exactly halfway between Buyer's
and RBIT's analyses, such umpire's analysis shall then be used to
establish the revised analysis for the shipment. If such revised
analysis results in a price adjustment in accordance with the procedures
described in this Agreement, RBIT shall issue a credit or debit invoice
as the case may be. If an umpire's analysis is required on any
Specifications other than TiO\\2\\, the umpire's analysis
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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, however, that if the umpire's analysis is exactly halfway
between Buyer's and RBIT's analyses, the umpire's analysis shall be the
basis for final settlement. If such analysis determines that Product
does not meet each of such Specifications, the parties shall proceed as
described in Article X of this Agreement. The cost of an umpire's
analysis shall be paid by the party whose analysis varies most from
umpire's analysis unless such variations are equal, whereupon, the cost
shall be borne equally by the parties.
D. Revisions of Sampling and Analytical Procedures
-----------------------------------------------
The procedures set forth in the Exhibits referred to in this Article XI 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
Any dispute between RBIT and Buyer arising out of or in any way connected with
this Agreement, its negotiation, performance, breach, existence or validity
shall, unless settled by mutual agreement, be referred first, for conciliation
and, failing
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settlement thereunder, for final and binding arbitration, in London, England,
under the Rules of Conciliation and Arbitration of the International Chamber of
Commerce. The arbitration shall be presided over by three (3) arbitrators of
which RBIT shall appoint one and Buyer shall appoint another, and the two
appointed arbitrators shall appoint the Chairman of the arbitral tribunal within
sixty (60) days following their appointment by the parties hereto, failing which
the Chairman shall be appointed by the International Court of Arbitration of the
International Chamber of Commerce. The language of the arbitration shall be
English.
ARTICLE XIII.
TAXES AND DUTIES
All 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 agrees to protect and hold Buyer harmless against any and all claims
that Product 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 will, at its own cost and expense, defend any and all
suits which may be brought against Buyer on account of alleged infringement
of such South African patent or patents, and RBIT shall pay any and all
fees,
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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 Product sold to buyer during the previous 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
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, earthquake, flood,
mobilization, war (whether declared or undeclared), act of any belligerent in
any such war, civil commotion, riot, rebellion, revolution or blockade, (ii) any
requirement, regulation, restriction, 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 or receipt of Product or fuel or other supplies or
material including ilmenite ore, water or electric power necessary for the
operation of the mines and plants where Product is produced or
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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 break
down of plants or machinery of RBIT or Buyer, or (vi) any other contingency,
excluding market conditions of any kind, 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 Product (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 of any such
event be given by the party affected to the other party. Any delay or
interference which affects RBIT's supply of Product to customers shall entitle
RBIT to allocate equitably any available Product among customers in its
discretion.
Anything to the contrary herein notwithstanding, if such event of Force
Majeure occurs, the obligation of RBIT to sell and deliver and of Buyer to buy
and to take the Contracted Quantity of Product with respect to any year shall
terminate (unless otherwise agreed between the parties) at the end of the year
as to quantities of Product which have not been loaded aboard Buyer's railcar at
Richards Bay by the
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end of the year due to such event of Force Majeure. Nothing contained in this
Article shall require Buyer to pay for, or RBIT to make up or compensate for,
any Product not delivered due to the application of this Article XV.
ARTICLE XVI.
DEFAULT & LIMITS OF LIABILITY
For purposes of this Article XVI, a "default" shall mean any failure by either
party to make any payment or to perform any obligation under or pursuant to this
Agreement for any reason other than an event of Force Majeure as defined in
Article XV. No default shall be deemed to have occurred unless the party in
default shall have first been given notice of such default and shall have failed
to cure such default within thirty (30) days in the event of a failure to pay
and in all other events of default, within ninety (90) days after receipt of
such written notice. In the event of a default arising from a breach of Buyer's
duty to pay for Product delivered 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 actually sustained as a direct result of 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. Notwithstanding anything contained
herein to the contrary, in no event shall Buyer be liable for consequential,
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indirect 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 form a failure to deliver
Product pursuant to this Agreement, RBIT (subject to RBIT's rights to cure its
default pursuant to this Article) shall compensate Buyer for all loss or damage
actually sustained as a direct result of the failure to deliver but excluding
indirect, consequen tial, 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. Buyer shall not, however, be entitled to terminate its
obligations to purchase Product under 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 therefor, nor shall any delay by either party in enforcing
any of its rights
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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.
NOTICE
Any notice to be given to any party under the terms of this Agreement shall be
deemed to have been delivered by courier service or transmitted by telefax and
subsequently confirmed by prepaid registered mail to the respective addresses or
telefax numbers given below:
TO RBIT: Attention: General Manager, Marketing
---------
Richards Bay Iron and Titanium (Proprietary) Limited
P.O. Box 401
Richards Bay
South Africa 3900
Telefax: (27) 351 9013160
WITH COPY TO: Attention: Director, Sales & Marketing,
---------- Titania Slag and Rutile
Rio Tinto - Iron & Titanium Inc.
770 Sherbrooke West
Suite 1800
Montreal, Quebec
Canada, H3A 1G1
Telefax: 1 (514) 286-9336
TO BUYER: Attention: Group Minerals Manager
---------
Tioxide S.A. (Pty) Limited
Private Bag X 504
Umbogintwini, South Africa 4120
Telefax: 27 3194 2416
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or to such other address or telefax number as either party shall so designate by
providing notice of such other address telefax or telex number in accordance
with the provisions of this Article. All notice shall be deemed to have been
received on the day of delivery, if delivered by courier service or on the day
of transmission, if sent by telefax, during normal business hours (9:00 a.m to
4:00 p.m.) of the recipient, failing which, such notice shall be deemed to have
been received on the next busi ness day.
ARTICLE XIX.
ASSIGNMENT
A. 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, partnerships or other entities 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. In the event of a non-agreed
assignment, the party not so assigning shall have the right to terminate
this Agreement by giving thirty (30) days written notice of its intent to
terminate.
B. In the event of a sale by Buyer or Buyer's plant to a third party, Buyer
agrees to obtain as an integral part of such sale the assumption by the
purchaser of
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the obligation to purchase Product from RBIT upon the same terms and
conditions as in this Agreement.
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 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 document 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, in all respects, be governed by and construed in
accordance with the laws of South Africa, to the exclusion of the United Nations
Convention on the International Sale of Goods.
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ARTICLE XXII.
CONFIDENTIALITY
This Agreement and information obtained by one party from the other by virtue of
this Agreement, shall remain confidential and shall not be disclosed to any
third party without the prior written consent of the other party, unless such
information is publicly available, or previously known to the recipient or is
required to be disclosed by law.
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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 above written.
RICHARDS BAY IRON AND TITANIUM TIOXIDE S.A. (PTY) LIMITED
(PROPRIETARY) LIMITED
By: /s/B.J. Grierson By: /s/ D.M. Callon
---------------- ---------------
Name: B.J. Grierson Name: D.M. Callon
Title: Chairman Title: Managing Director
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