EXHIBIT 10.26
[PRAXAIR LOGO]
CONFIDENTIAL TREATMENT REQUESTED
UNDER C.F.R. SECTIONS
200.80(b)(4), 200.83 and 230.406
**** INDICATES OMITTED MATERIAL THAT
IS THE SUBJECT OF A CONFIDENTIAL
TREATMENT REQUEST FILED
SEPARATELY WITH THE COMMISSION
PRODUCT SUPPLY AGREEMENT
THIS AGREEMENT numbered 720940 and dated July 31, 2002, is made by and
between PRAXAIR, INC., a Delaware corporation, having an office at 00 Xxx
Xxxxxxxxx Xxxx, Xxxxxxx, Xxxxxxxxxxx 00000-0000 (hereinafter called "Seller")
and Republic Engineered Products LLC an Ohio corporation, having an office at
0000 Xxxxxxx Xxxxxxx, Xxxxx, Xxxx 00000 (hereinafter called "Buyer").
W I T N E S S E T H:
In consideration of the mutual promises contained herein, the parties
intending to be legally bound agree as follows:
1. DEFINITIONS
In this Agreement, the terms "Address," "Basic Term," "Buyer's Location,"
"Cylinders," "Prices," "Product," "Seller's Shipping Point," "Specifications"
and "Supply System" will have the respective meanings set forth in the Rider(s)
duly executed by the parties and made a part hereof. The term "First Delivery"
means the date on which Seller first delivers Product to Buyer, which date will
in no event be earlier than the date on which Buyer is no longer obligated to
purchase Product for Buyer's Location under the terms of any other contract. In
addition to the meaning of the term "Supply System" set forth in the Rider(s),
the term "Supply System" means a system located at Buyer's Location which is
owned and maintained by Seller for the supply of Product to Buyer hereunder and
which may be comprised of air separation facilities, Product generating systems,
storage units, vaporizers, piping, controls and other equipment, devices and/or
instrumentation as deemed appropriate by Seller.
2. REQUIREMENTS
[****]
3. PRICES AND PAYMENT
Seller will invoice Buyer by Seller's standard billing methods and Buyer
will pay Seller the Prices, charges and surcharges for Product, equipment or
services supplied hereunder. If Seller provides Buyer with product(s), equipment
or services not specifically covered by any Rider, the prices, charges and
surcharges as are set forth in Seller's schedule for such product(s), equipment
or services will apply, any such product(s) will meet industry standards for
purposes of Article 6 and any such product(s), equipment or services will be
deemed to be supplied pursuant to the terms and conditions of this Agreement. In
addition, Buyer will pay or reimburse for any sales, property, use, excise or
other tax now or hereafter imposed by reason of any sale, delivery or furnishing
of any Product, equipment or services hereunder. Terms of payment will be net
[****] days following date of invoice. At Seller's request, and subject to
Buyer's ability to do so, Seller and Buyer will utilize Electronic Data
Interchange for invoicing and paying of invoices. If Buyer fails to make timely
payment in accordance with the terms of this Agreement, or its financial
responsibility becomes otherwise impaired, Seller reserves the right, among
other remedies, to refuse to supply Product except for receipt of cash with
order and/or payment in full of all outstanding charges, and/or assess and
collect from Buyer a monthly late charge on any delinquent balance equal to the
lesser of [****] percent ([****]%) per annum or the maximum charge permitted by
law, and/or enter Buyer's premises and remove any
Supply System, Cylinders or other Seller's equipment located thereat with or
without notice of legal process, and/or terminate this Agreement or any Rider.
If any action is required to collect Buyer's delinquent account, recover any
Cylinders or otherwise enforce the terms and conditions of this Agreement, Buyer
will pay Seller all fees and costs of such collection, recovery or enforcement
including, without limitation, legal fees.
4. DELIVERY
Seller will deliver to Buyer Buyer's requirements for Product in
accordance with the terms of this Agreement. Product in Cylinders will be
delivered F.O.B. point of shipment. At Seller's request, Buyer will provide to
Seller information relating to Buyer's pattern of use of Product from each
Supply System. Seller may anticipate Buyer's requirements for Product and
deliver Product at such times as are consistent with Seller's delivery schedule.
The delivery of Product by Seller will constitute Buyer's purchase thereof, and
the quantities delivered will be measured by Seller by the method it regularly
uses for the type of delivery made. Buyer grants to Seller the right of
twenty-four (24) hour access to each Supply System site, and if (a) Buyer fails
to grant such access, or (b) Seller is unable to deliver Product (i) from
Seller's Shipping Point or (ii) to deliver Product at any time consistent with
Seller's delivery schedule or otherwise in accordance with the terms of this
Agreement due to any act or omission of Buyer, Buyer will pay Seller any
applicable delivery charge set forth in Seller's delivery option charge
schedule. If Seller is requested by Buyer and is able to make deliveries during
a strike or other concerted acts of workers affecting Buyer, then such
deliveries will be made at Buyer's sole risk and, notwithstanding anything in
this Agreement to the contrary, Buyer hereby indemnifies and holds harmless
Seller from and against all costs (including legal fees), damages, liabilities
or claims arising out of any such deliveries. In addition, Seller reserves the
right to request, in its sole discretion, that Buyer provide qualified personnel
to deliver Product to any Supply System affected by such strike or concerted
acts, and Buyer will provide such personnel.
5. SUPPLY SYSTEMS AND SUPPLY SYSTEM SITES
Buyer, at its expense, will provide a suitable site for each Supply System
free from any underground or overhead obstructions and with access either by
road or railroad siding as mutually agreed upon by the parties, construct a
suitable foundation for each Supply System as specified by Seller, install
fencing adequate to prevent tampering, install isolation barriers as required,
obtain any necessary permits and licenses for each Supply System, install and
maintain a properly designed system for the distribution of Product from each
Supply System to Buyer's points of use, and furnish utilities as required by
Seller in connection with each Supply System, such as electric power, lighting,
telephone lines, water and/or steam, and the facilities to deliver such
utilities to the point(s) on each Supply System site designated by Seller. Each
Supply System site furnished by Buyer hereunder will be free from toxic and
hazardous materials which would prevent or increase the cost of the installation
or operation of the Supply System, or which would cause injury or death of
Seller's employees or any other persons on or at the Supply System site, or
which would cause damage to any adjoining property. Notwithstanding anything in
this Agreement to the contrary, Buyer hereby indemnifies and holds harmless
Seller from and against any and all claims, liabilities, costs (including legal
fees), expenses, damages, penalties and fines that result from any toxic or
hazardous materials now or hereafter in, on or under the Supply System site and
do not occur or result directly from Seller's performance pursuant to this
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Agreement. If subsequent to the date of this Agreement any new local, state or
federal law, rule or regulation requires modification to any Supply System or
Supply System site, or any additional permits, licenses or rights are required,
any costs associated with performing such modifications or obtaining such
permits. licenses or rights will be borne by Buyer. If any Supply System or
Cylinder is damaged by Buyer, its agents, employees, contractors or invitees,
the cost of repairing such Supply System or Cylinder will be borne by Buyer.
Buyer will prevent persons other than those authorized by Seller from entering
any Supply System site, delaying delivery of Product, or altering, repairing,
adjusting or otherwise tampering with any Supply System or Cylinder.
Seller will install each Supply System and make the connection to Buyer's
Product distribution system. The costs associated with installing each Supply
System and connecting it to Buyer's Product distribution system, including,
without limitation, transportation and rigging costs, will be borne by the party
specified in the Rider. Seller will not be responsible for connecting any
Cylinder to Buyer's Product distribution system. Seller will, at Buyer's
expense, remove each Supply System within a reasonable time after the
termination of this Agreement with respect to the Rider covering such Supply
System. Seller may at its expense remove any Supply System or part thereof, and
replace it with another Supply System or part thereof, as Seller may deem
appropriate for the supply of Buyer's requirements. Seller will have the right
from time to time to shut down each Supply System for such period of time as may
be necessary for repairs and maintenance consistent with proper operation. Each
Supply System or Cylinder will remain the property of Seller at all times. Buyer
will hold harmless Seller from and against liens and claims against each Supply
System or Cylinder due to its location on Buyer's premises.
If Buyer no longer has Product requirements under any Rider for the
remainder of the Basic Term of such Rider, Buyer may request Seller to remove
any Supply System covered by such Rider, other than a Supply System containing
an air separation facility, or a Product generating system, prior to the
expiration of such Basic Term. Seller will remove such Supply System provided
that (a) Buyer reimburses Seller for any removal expenses relating to such
Supply System, and (b) in the event that following the removal of such Supply
System Buyer's need for Product resumes at any time within the Basic Term of the
Rider covering such Supply System, such Rider will be reinstated, the Basic Term
of such Rider will be deemed extended by the number of days that such Supply
System was removed from Buyer's Location and Buyer will reimburse Seller for the
cost of reinstalling the Supply System. If Seller relocates, modifies or
replaces all or part of any Supply System due to a change in Buyer's
requirements, method of supply, pressure specifications, Buyer's Location or
Buyer's facilities, Seller may charge Buyer the cost of such relocation,
modification or replacement, adjust the Monthly Service Charge set forth in the
Rider covering such relocated, modified or replaced Supply System, and extend
the term of such Rider effective upon First Delivery to or from the relocated,
modified or replacement Supply System for a period equal to the Basic Term of
such Rider.
Each Cylinder furnished by Seller will remain the property of Seller at
all times. Buyer will return each such Cylinder to Seller in a non-contaminated
condition with the cap and any valves and dust plugs tightly closed and with
sufficient residual pressure to prevent contamination to the Cylinder. Buyer
will pay Seller for cleaning any Cylinder if such Cylinder is contaminated when
returned to Seller. Buyer will return each Cylinder to Seller within thirty (30)
days following the termination of this Agreement or pay Seller the
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replacement value thereof. Buyer will maintain records adequate to account for
each Cylinder that is furnished to Buyer. On Seller's request, Buyer will make
such records available to Seller during normal business hours to enable Seller
to audit such records and other pertinent data as may be necessary to locate its
Cylinders and to confirm Buyer's records. Buyer will cooperate with Seller to
protect, locate and recover each Cylinder furnished to Buyer hereunder. Buyer's
obligations under this paragraph will survive the termination of this Agreement.
6. SPECIFICATIONS
Product delivered hereunder will meet the Specifications. Buyer may reject
any Product which does not meet the Specifications and no charge will be made
for Product so rejected. Since Buyer may obtain devices which have the
capability of testing whether Product meets the Specifications, no claim of any
kind with respect to the conformance of Product to the foregoing Specifications,
whether or not based on negligence, warranty, strict liability or any other
theory of law, will be greater than the price of the quantity of nonconforming
Product in respect to which such claim is made. The foregoing constitutes
Buyer's exclusive remedy and Seller's sole obligation with respect to any such
claim. THERE ARE NO EXPRESS WARRANTIES BY SELLER OTHER THAN THOSE SPECIFIED IN
THIS ARTICLE 6. NO WARRANTIES BY SELLER (OTHER THAN WARRANTY OF TITLE AS
PROVIDED IN THE UNIFORM COMMERCIAL CODE) WILL BE IMPLIED OR OTHERWISE CREATED
UNDER THE UNIFORM COMMERCIAL CODE INCLUDING WITHOUT LIMITATION WARRANTY OF
MERCHANTABILITY AND WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE.
7. PRICE CHANGES
Seller will have the right to adjust the Prices by giving Buyer not less
than fifteen (15) days prior written notice of the effective date of such
adjustment; provided, however, that if said Prices are increased and Buyer,
within fifteen (15) days after said notice, furnishes Seller with credible
written evidence that Buyer can purchase Product to which such increased Prices
apply from a responsible supplier for a specified term in like quantities at
lower prices under similar terms and conditions, and Seller, within fifteen (15)
days thereafter, does not agree to either meet said lower prices or rescind the
notice of increased Prices, Buyer will have the right within ten (10) days
thereafter to terminate this Agreement as to the supply of Product for which
such lower prices are offered by giving Seller not less than ten (10) days prior
written notice. If Buyer exercises such right of termination, the cost of
removal of the Supply System used for the supply of such Product will be borne
by Buyer. If Seller agrees to meet the lower prices or rescind the notice of
increased Prices, Seller may extend the term of the Rider covering such Product
for a period equal to the period of the Basic Term of such Rider. Any
adjustments made by Seller pursuant to this Article 7 with respect to any
Monthly Service Charge or Monthly Rental set forth in the Rider or to surcharges
or other charges which arise pursuant to Article 3 will not be subject to the
proviso contained in the first sentence of this Article 7.
8. CONTINGENCIES
Neither party hereto will be liable to the other for default or delay in
the performance of any of its obligations hereunder (except any obligation to
make payments when due) due
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to act of God, accident, fire, flood, storm, riot, war, sabotage, explosion,
strike, concerted acts of workers, national defense requirements, governmental
law, ordinance, rule or regulation, whether valid or invalid, extraordinary
equipment failure, inability to obtain electricity or other type of energy, raw
or finished material or feedstock from normal sources of supply, labor,
equipment or transportation, or any similar or different contingency beyond its
reasonable control which would make performance commercially impracticable
whether or not the contingency is of the same class as those enumerated above,
it being expressly agreed that such enumeration is non-exclusive; provided,
however, that neither business downturn nor economic conditions will qualify as
a contingency within the meaning of this Article 8. In the event any such
contingency affects only a part of Seller's capability to produce and/or deliver
Product, Seller will allocate production and/or deliveries among the
requirements of all its affected customers and Seller's own requirements in a
fair and reasonable manner. Buyer will pay or reimburse Seller for any
additional costs incurred relating to the delivery of any Product to Buyer
during a contingency. During any period that delivery of Product is interrupted
or reduced due to a contingency hereunder, the Basic Term will be extended for a
period equal to two (2) times the duration of the contingency.
9. HEALTH, SAFETY AND LIABILITY
Buyer acknowledges that there are hazards associated with Product,
including, without limitation, the storage, use and handling thereof, and Buyer
agrees that its personnel concerned with Product are aware of such hazards.
Buyer assumes all responsibility for the suitability and the results of using
Product alone or in combination with other articles or substances and in any
manufacturing, medical, or other process or procedures. Buyer will notify Seller
of any hazards and safety procedures at Buyer's Location(s) and Buyer will
notify Seller in advance of any anticipated construction, renovation, or change
in operations in the area of any Supply System site so that any hazards
associated with same can be minimized. Buyer will be responsible for complying
with all relevant reporting obligations under all applicable laws, including,
without limitation, the Emergency Planning and Community Right-to-Know Act of
1986, 42 U.S.C. Sections 11001-11049 [EPCRA, also commonly known as Title III of
the Superfund Amendments and Reauthorization Act of 1986 (XXXX Title III)], that
result from the presence at Buyer's Location(s) of Product supplied under this
Agreement. Buyer will warn and protect its employees, independent contractors
and others exposed to the hazards posed by Buyer's storage, use and handling of
Product. Seller will provide documents to Buyer containing Seller's safety and
health information pertaining to Product, including Seller's Material Safety
Data Sheet(s), and Buyer will incorporate such information into Buyer's safety
program. Seller will not be liable to Buyer for any incidental, consequential,
indirect or special damages. Each party hereby indemnifies and holds harmless
the other party from any actions, lawsuits, demands, claims, losses, expenses,
costs (including legal fees) and damages arising from the injury, illness or
death of the indemnifying party's employees in any way related to Product
supplied by Seller under this Agreement, whether or not such injury, illness, or
death is claimed to have been caused by, resulted from, or was in any way
connected with the negligence of the party to be indemnified.
10. CONFIDENTIALITY
This Agreement, including the Rider(s) and any addendum hereto, and all
drawings, diagrams, specifications, operating data, pricing and costs and other
materials furnished by
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either party to the other in connection therewith, and the information therein
are proprietary to the disclosing party. Such materials contain trade secrets
and other confidential information of the disclosing party. The receiving party
may not reproduce or distribute such materials except (a) to governmental
agencies for the purpose of obtaining permits under Article 5, and (b) to the
receiving party's employees for the purpose of performing the receiving party's
obligations under this Agreement. In the case of any of the aforementioned
disclosures, the receiving party will inform its employees or governmental
agencies that such information is the confidential information of the disclosing
party and is to be treated accordingly. All such information (except information
as may be established to be in the public domain) will be received in confidence
by the receiving party, and the receiving party will exercise the same degree of
care to hold such information in confidence as it uses with respect to its own
trade secrets and/or confidential and proprietary information. Unless otherwise
agreed to by the parties, the receiving party will keep all such information
confidential for a period which will expire five (5) years after the termination
date of this Agreement. Notwithstanding anything herein to the contrary, Buyer
hereby grants to Seller the right to reasonably use the Supply System(s) for
promotional purposes, including visits to the Supply System site(s) by Seller
with third parties. Each such promotional use, however, will be subject to
Buyer's approval, which approval will not be unreasonably delayed or withheld.
11. ASSIGNMENT
Any assignment of this Agreement by either party without the prior written
consent of the other party, which consent will not be unreasonably delayed or
withheld, will be void; provided, however, that Seller will have the right
without Buyer's consent to assign this Agreement to any affiliate of Seller, or
any party obtaining all or substantially all of the business assets of Seller.
If Buyer sells or otherwise transfers or conveys all or substantially all of the
assets relating to the operations at Buyer's location(s), Buyer will, as a
condition precedent to the closing of such sale, transfer or conveyance, require
the purchaser or transferee to assume all of the rights and obligations of Buyer
under this Agreement. This Agreement will inure to the benefit of, and be
binding upon, the respective heirs, representatives, successors, including any
by way of merger or consolidation, and permitted assigns of the parties.
12. NOTICES
All notices, unless otherwise provided herein, will be in writing and
deemed given on the date the notice is hand delivered, mailed or electronically
transmitted to the receiving party at such party's Address. Either party may
change its Address upon notice to the other party as set forth herein.
13. TERM
Except as provided in Articles 3, 5 and 7 or the Rider(s), this Agreement
will be in effect from the date hereof and will continue in effect thereafter as
to each Rider for the period of the Basic Term, and will continue in effect
thereafter as to such Rider until either party terminates such Rider effective
upon the expiration of the Basic Term thereof by giving to the other party not
less than [****] months prior written notice of termination with respect to such
Rider or, if either party does not so terminate such Rider upon the expiration
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of the Basic Term thereof, such Rider will continue in effect thereafter for
successive renewal terms equal to the period of the Basic Term of such Rider
(the "Renewal Terms") until either party terminates such Rider effective upon
the expiration of any Renewal Term by giving the other party not less than
twelve (12) months prior written notice of termination with respect to such
Rider.
14. DISPUTE RESOLUTION
In the event that a party to this Agreement has reasonable grounds to
believe that the other party hereto has failed to fulfill any obligation
hereunder, or that its expectation of receiving due performance under this
Agreement may be impaired, such party will promptly notify the other party in
writing of the substance of its belief. The party receiving such notice must
respond in writing within thirty (30) days of receipt of such notice and either
provide evidence of cure of the condition specified, or provide an explanation
of why it believes that its performance is in accordance with the terms of this
Agreement, and also specify three (3) dates, all of which must be within thirty
(30) days from the date of its response, for a meeting to resolve the dispute.
The claiming party will then select one (1) of the three (3) dates, and a
dispute resolution meeting will be held. If the parties cannot, in good faith
discussions, resolve their dispute, they will be free to pursue all remedies
allowed under the law without prejudice.
15. GENERAL
This Agreement supersedes any prior agreement or agreements between Buyer
and Seller covering the supply of Product to Buyer's Location(s), but this
Agreement will not be construed as a renunciation or discharge of any claim in
damages for an antecedent breach. The entire agreement is contained herein and
in the Rider(s). There are no other promises, representations or warranties
affecting this Agreement, and any other or different terms or conditions in any
purchase orders, Buyer's website agreements (including, without limitation, any
terms or conditions subject to an accept button or other similar means of
indicating acceptance) or other documents issued or accepted hereunder will be
deemed null and void. No modification or waiver of this Agreement will bind
either party unless expressly set forth in writing and manually signed and
accepted by an authorized representative of the party sought to be bound by such
writing. A waiver of any of the terms and conditions hereof will not be deemed a
continuing waiver, but will apply solely to the instance to which the waiver is
directed. Any headings contained in this Agreement are used only as a matter of
convenience and reference, and are in no way intended to define, limit, expand
or describe the scope of this Agreement. In the event of conflict between the
terms and conditions contained in this Agreement and the Rider(s), the terms and
conditions of the Rider(s) will govern. This Agreement will be governed by the
laws of the State of New York.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
as of the date first above written.
REPUBLIC ENGINEERED PRODUCTS LLC. PRAXALR, INC.
Submitted by: Xxxxx Xxxxx
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Accepted by: /s/ X.X. Xxxxx Accepted by: /s/ Xxxxxx X. Xxxxx
--------------------------- ---------------------
Name: X.X. Xxxxx Name: Xxxxxx X. Xxxxx
--------------------------------- ----------------------------
(printed) (printed)
Title: Vice President Title: Director, Merchant &
On-site Products
Date: 9/20/02 Date: 9/23/02
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[PRAXAIR LOGO]
PRODUCT RIDER
This Rider, dated as of July 31, 2002 (the "Effective Date"), is made a
part of the agreement between Republic Engineered Products ("Buyer") and
Praxair, Inc. ("Seller") numbered 720940 and dated July 31, 2002 (the
"Agreement").
As to this Rider, the following terms will have the meanings set forth
below:
"Product" means liquid oxygen.
"Address" means:
For Seller: For Buyer:
Praxair, Inc. Republic Engineered Products LLC
X.X. Xxx 0000 0000 Xxxxxxx Xxxxxxx
00 Xxx Xxxxxxxxx Xxxx Xxxxx, Xxxx 00000-0000
Xxxxxxx, XX 00000-0000
Attn: Contract Administrator Attn: Mr. Xxx Xxxxxx
Telephone: (000) 000-0000 or 2082 Telephone: 330/000-0000
Fax: (000) 000-0000 Fax: 330/000-0000
"Basic Term" means the period commencing on January 11, 2003 and continuing for
[****] years.
"Buyer's Location" means Canton, Ohio.
"Seller's Shipping Point" means Canton, Ohio; Lorain, Ohio; Ashtabula, Ohio; and
Marietta, Ohio.
"Supply System" means, as to the following Supply System(s):
Pressure At Peak Flow
Battery Limits Average Flow Peak Flow Rate Duration
Item No. Description (psig) Rate (cfh) (cfh) (hrs/day)
------- ---------------- -------------- ------------ -------------- ----------
1 Site 1 - Furnace 200 200,000
2 Site 2 - Caster 200 30,000
The costs associated with installing each Supply System and connecting it to
Buyer's Product distribution system, including, without limitation, any
transportation and rigging costs, will be borne by Seller.
"Specifications" mean:
Supply System
Item No. Specifications
1 [****]%
Liquid Oxygen Rider
Page 1
"Prices" are:
Supply System Charge per 100 Cubic Monthly Service
Item No. Feet of Product Charge
------------- --------------------------------------------------------------- ----------------
1 First [****] Cubic Feet Per Month $[****] $[****]
All Over [****] Cubic Feet Per Month $[****] $[****]
Combined Volume with Supply System Item No. 2
2 First [****] Cubic Feet Per Month $[****] $[****]
All Over [****] Cubic Feet Per Month $[****] $[****]
Combined Volume with Supply System Item No. 1
The Monthly Service Charge for each Supply System will commence on the earliest
of the following dates: (a) First Delivery of Product to or from such Supply
System, (b) thirty (30) days after the date such Supply System is delivered to
Buyer's Location in the event Seller is delayed in tendering delivery of Product
to Buyer from such Supply System and such delay is due to the acts or omissions
of Buyer, or (c) thirty (30) days after the date such Supply System would have
been delivered to Buyer's Location had such delivery not been delayed due to the
acts or omissions of Buyer.
1. MONTHLY VOLUMES
Buyer has estimated that Buyer's monthly consumption of Product will be
approximately [****] cubic feet (the "Estimated Monthly Volume"). Seller will be
obligated hereunder to supply Product only up to [****]% of the Estimated
Monthly Volume. Seller will supply to Buyer Product in excess of [****]% of the
Estimated Monthly Volume ("Excess Product") to the extent that Seller, in its
sole discretion, deems that it has Excess Product available for Buyer, and Buyer
will pay Seller any additional costs incurred by Seller in supplying Excess
Product to Buyer. To the extent that Buyer has requirements for Excess Product
and Seller has Excess Product available for Buyer, Buyer will purchase such
requirements from Seller.
2. MODIFICATIONS TO THE PRODUCT SUPPLY AGREEMENT
As to the supply of Product pursuant to this Rider, the Agreement is hereby
modified as follows:
A. The first sentence of Article 2. REQUIREMENTS is changed to the
following:
Seller will sell to Buyer, and Buyer will purchase from Seller, on the
terms and conditions hereinafter set forth, Buyer's [****], in gaseous and
liquid form, of Product for use at Buyer's Location(s), and if the operations
at Buyer's Location(s) are expanded, then at such expanded location(s).
B. In Article 3. PRICES AND PAYMENT, Terms of Payment will be net [****]
days from date of invoice.
C. Sentence five, "At Seller's request, and subject to Buyer's ability to
do so, Seller and Buyer will utilize Electronic Data Interchange for invoicing
and paying of invoices." is removed from Article 3.
D. Paragraph two of Article 5. SUPPLY SYSTEMS AND SUPPLY SYSTEM SITES will
be modified to include the following, "Seller will advise Buyer of all planned
Liquid Oxygen Rider
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shutdowns in advance. Seller's best efforts will be made to coordinate with
Buyer's downtime."
E. Article 7. PRICE CHANGES is replaced in its entirety as follows:
Prices may be adjusted [****] with the first adjustment no sooner than
[****]. Buyer and Seller agree to negotiate in good faith the amount of the
price adjustment. Should Buyer and Seller fail to agree on the amount of the
adjustment, Seller will have the right to adjust the Prices by giving Buyer not
less than thirty (30) days prior written notice of the effective date of such
adjustment; provided, however, that if said Prices are increased and Buyer,
within thirty (30) days after said notice, furnishes Seller with credible
written evidence that Buyer can purchase Product to which such increased Prices
apply from a responsible supplier for a specified term in like quantities at
lower prices under similar terms and conditions, and Seller, within thirty (30)
days thereafter, does not agree to either meet said lower prices or rescind the
notice of increased Prices, Buyer will have the right within ten (10) days
thereafter to terminate this Agreement as to the supply of Product for which
such lower prices are offered by giving Seller not less than ten (10) days prior
written notice. If Buyer exercises such right of termination, the cost of
removal of the Supply System used for the supply of such Product will be borne
by Buyer. If Seller agrees to meet the lower prices or rescind the notice of
increased Prices, Seller may extend the term of the Rider covering such Product
for a period equal to the competitive offer if the term of the offer is greater
that the period remaining in the Basic Term of such Rider. If Seller does not
agree to meet the lower prices or rescind the notice of increased Prices, Seller
will continue to supply product to Buyer for a period of six (6) months or until
advised by Buyer that the new supplier is in position to supply, whichever comes
first.
F. Monthly Service Charge will remain firm for the duration of the Basic
Term.
G. The next to last sentence of Article 8. CONTINGENCIES will be modified
to read, "Buyer will pay or reimburse Seller for any additional costs incurred
relating to the delivery of any Product to Buyer during a contingency upon
consent of Buyer."
H. The last sentence of Article 8 is deleted in its entirety.
I. In Article 11, ASSIGNMENT, insert the following at the end of the first
sentence after "Seller" and before the period:
" ; and provided further that Buyer will have the right to assign this
Agreement to an affiliate of Buyer upon Buyer's demonstration, to the
satisfaction of Seller, that such affiliate has, and will likely maintain during
the term of the Agreement, the financial resources and operational capability to
perform its obligations under this Agreement"
J. In Article 11, in the second sentence, insert after "Buyer's
Location(s)" and before the comma:
"during the first four (4) years after First Delivery"
IN WITNESS WHEREOF, the parties have caused this Rider to be executed as
of the date written above.
Liquid Oxygen Rider
Page 3
REPUBLIC ENGINEERED PRODUCTS LLC. PRAXALR, INC.
Submitted by: Xxxxx Xxxxx
Accepted by: /s/ X.X. Xxxxx Accepted by: /s/ Xxxxxx X. Xxxxx
--------------------------- --------------------
Name: X.X. Xxxxx Name: Xxxxxx X. Xxxxx
---------------------------------- ---------------------------
(printed) (printed)
Title: Vice President Title: Area Director
Date: 9/20/02 Date: 9/23/02
Liquid Oxygen Rider
Page 4
[PRAXAIR LOGO]
PRODUCT RIDER
This Rider, dated as of July 31, 2002 (the "Effective Date"), is made a
part of the agreement between Republic Engineered Products ("Buyer") and
Praxair, Inc. ("Seller") numbered 720940 and dated July 31, 2002 (the
"Agreement").
As to this Rider, the following terms will have the meanings set forth
below:
"Product" means liquid nitrogen.
"Address" means:
For Seller: For Buyer:
Praxair, Inc. Republic Engineered Products LLC
X.X. Xxx 0000 0000 Xxxxxxx Xxxxxxx
00 Xxx Xxxxxxxxx Xxxx Xxxxx, Xxxx 00000-0000
Xxxxxxx, XX 00000-0000
Attn: Contract Administrator Attn: Mr. Xxx Xxxxxx
Telephone: (000) 000-0000 or 2082 Telephone: 330/000-0000
Fax: (000) 000-0000 Fax: 330/000-0000
"Basic Term" means the period commencing on January 11, 2003 and continuing for
[****] years.
"Buyer's Location" means Canton, Ohio.
"Seller's Shipping Point" means Canton, Ohio.
"Supply System" means, as to the following Supply System(s):
Pressure At Peak Flow
Item Battery Limits Average Flow Peak Flow Rate Duration
No. Description (psig) Rate (cfh) (cfh) (hrs/day)
---- ---------------- -------------- ------------ -------------- ----------
1 Site 1 - Furnace 200 100,000
2 Site 2 - Caster 200 30,000
The costs associated with installing each Supply System and connecting it to
Buyer's Product distribution system, including, without limitation, any
transportation and rigging costs, will be borne by Seller.
"Specifications" mean:
Supply System
Item No. Specifications
1 [****]%
Liquid Nitrogen Rider
Page 1
"Prices" are:
Supply System Charge per 100 Cubic
Item No. Feet of Product Monthly Service Charge
------------- -------------------- ----------------------
1 $[****] $[****]
2 $[****] $[****]
The Monthly Service Charge for each Supply System will commence on the earliest
of the following dates: (a) First Delivery of Product to or from such Supply
System, (b) thirty (30) days after the date such Supply System is delivered to
Buyer's Location In the event Seller is delayed in tendering delivery of Product
to Buyer from such Supply System and such delay is due to the acts or omissions
of Buyer, or (c) thirty (30) days after the date such Supply System would have
been delivered to Buyer's Location had such delivery not been delayed due to the
acts or omissions of Buyer.
1. MONTHLY VOLUMES
Buyer has estimated that Buyer's monthly consumption of Product will be
approximately [****] cubic feet (the "Estimated Monthly Volume"). Seller will be
obligated hereunder to supply Product only up to [****]% of the Estimated
Monthly Volume. Seller will supply to Buyer Product in excess of [****]% of the
Estimated Monthly Volume ("Excess Product") to the extent that Seller, in its
sole discretion, deems that it has Excess Product available for Buyer, and Buyer
will pay Seller any additional costs incurred by Seller in supplying Excess
Product to Buyer. To the extent that Buyer has requirements for Excess Product
and Seller has Excess Product available for Buyer, Buyer will purchase such
requirements from Seller.
2. MODIFICATIONS TO THE PRODUCT SUPPLY AGREEMENT
As to the supply of Product pursuant to this Rider, the Agreement is hereby
modified as follows:
A. The first sentence of Article 2. REQUIREMENTS is changed to the
following:
Seller will sell to Buyer, and Buyer will purchase from Seller, on the
terms and conditions hereinafter set forth, Buyer's [****], in gaseous and
liquid form, of Product for use at Buyer's Location(s), and if the operations
at Buyer's Location(s) are expanded, then at such expanded location(s).
B. In Article 3. PRICES AND PAYMENT, Terms of Payment will be net [****]
days from date of invoice.
C. Sentence five, "At Seller's request, and subject to Buyer's ability to
do so, Seller and Buyer will utilize Electronic Data Interchange for invoicing
and paying of invoices." is removed from Article 3.
D. Paragraph two of Article 5. SUPPLY SYSTEMS AND SUPPLY SYSTEM SITES will
be modified to include the following, "Seller will advise Buyer of all planned
shutdowns in advance. Seller's best efforts will be made to coordinate with
Buyer's downtime."
Liquid Nitrogen Rider
Page 2
E. Article 7. PRICE CHANGES is replaced in its entirety as follows:
Prices may be adjusted [****] with the first adjustment no sooner than
[****]. Buyer and Seller agree to negotiate in good faith the amount of the
price adjustment. Should Buyer and Seller fail to agree on the amount of the
adjustment, Seller will have the right to adjust the Prices by giving Buyer not
less than thirty (30) days prior written notice of the effective date of such
adjustment; provided, however, that if said Prices are increased and Buyer,
within thirty (30) days after said notice, furnishes Seller with credible
written evidence that Buyer can purchase Product to which such increased Prices
apply from a responsible supplier for a specified term in like quantities at
lower prices under similar terms and conditions, and Seller, within thirty (30)
days thereafter, does not agree to either meet said lower prices or rescind the
notice of increased Prices, Buyer will have the right within ten (10) days
thereafter to terminate this Agreement as to the supply of Product for which
such lower prices are offered by giving Seller not less than ten (10) days prior
written notice. If Buyer exercises such right of termination, the cost of
removal of the Supply System used for the supply of such Product will be borne
by Buyer. If Seller agrees to meet the lower prices or rescind the notice of
increased Prices, Seller may extend the term of the Rider covering such Product
for a period equal to the competitive offer if the term of the offer is greater
that the period remaining in the Basic Term of such Rider. If Seller does not
agree to meet the lower prices or rescind the notice of increased Prices, Seller
will continue to supply product to Buyer for a period of six (6) months or until
advised by Buyer that the new supplier is in position to supply, whichever comes
first.
F. Monthly Service Charge will remain firm for the duration of the Basic
Term.
G. The next to last sentence of Article 8. CONTINGENCIES will be modified
to read, "Buyer will pay or reimburse Seller for any additional costs incurred
relating to the delivery of any Product to Buyer during a contingency upon
consent of Buyer."
H. The last sentence of Article 8 is deleted in its entirety.
I. In Article 11, ASSIGNMENT, insert the following at the end of the first
sentence after "Seller" and before the period:
" ; and provided further that Buyer will have the right to assign this
Agreement to an affiliate of Buyer upon Buyer's demonstration, to the
satisfaction of Seller, that such affiliate has, and will likely maintain during
the term of the Agreement, the financial resources and operational capability to
perform its obligations under this Agreement"
J. In Article 11, in the second sentence, insert after "Buyer's
Location(s)" and before the comma:
"during the first four (4) years after First Delivery"
Liquid Nitrogen Rider
Page 3
IN WITNESS WHEREOF, the parties have caused this Rider to be executed as
of the date written above.
REPUBLIC ENGINEERED PRODUCTS LLC. PRAXALR, INC.
Submitted by: Xxxxx Xxxxx
Accepted by: /s/ X.X. Xxxxx Accepted by: /s/ Xxxxxx X. Xxxxx
------------------------- ---------------------
Name: X.X. Xxxxx Name: Xxxxxx X. Xxxxx
-------------------------------- ----------------------------
(printed) (printed)
Title: Vice President Title: Area Director
Date: 9/20/02 Date: 9/23/02
Liquid Nitrogen Rider
Page 4
\
[PRAXAIR LOGO]
PRODUCT RIDER
This Rider, dated as of July 31, 2002 (the "Effective Date"), is made a
part of the agreement between Republic Engineered Products ("Buyer") and
Praxair, Inc. ("Seller") numbered 720940 and dated July 31, 2002 (the
"Agreement").
As to this Rider, the following terms will have the meanings set forth
below:
"Product" means liquid argon.
"Address" means:
For Seller: For Buyer:
Praxair, Inc. Republic Engineered Products LLC
X.X. Xxx 0000 0000 Xxxxxxx Xxxxxxx
00 Xxx Xxxxxxxxx Xxxx Xxxxx, Xxxx 00000-0000
Xxxxxxx, XX 00000-0000
Attn: Contract Administrator Attn: Mr. Xxx Xxxxxx
Telephone: (000) 000-0000 or 2082 Telephone: 330/000-0000
Fax: (000) 000-0000 Fax: 330/000-0000
"Basic Term" means the period commencing on January 11, 2003 and continuing for
[****] years.
"Buyer's Location" means Canton, Ohio.
"Seller's Shipping Point" means Canton, Ohio.
"Supply System" means, as to the following Supply System(s):
Pressure At Peak Flow
Item Battery Limits Average Flow Peak Flow Rate Duration
No. Description (psig) Rate (cfh) (cfh) (hrs/day)
---- --------------- -------------- ------------ -------------- ---------
1 Site 2 - Caster 300 60,000
The costs associated with installing each Supply System and connecting it to
Buyer's Product distribution system, including, without limitation, any
transportation and rigging costs, will be borne by Seller.
"Specifications" mean:
Supply System
Item No. Specifications
1 [****]%
Liquid Argon Rider
Page 1
"Prices" are:
Supply System Charge per 100 Cubic
Item No. Feet of Product Monthly Service Charge
------------- -------------------- ----------------------
1 $[****] $[****]
The Monthly Service Charge for each Supply System will commence on the earliest
of the following dates: (a) First Delivery of Product to or from such Supply
System, (b) thirty (30) days after the date such Supply System is delivered to
Buyer's Location in the event Seller is delayed in tendering delivery of Product
to Buyer from such Supply System and such delay is due to the acts or omissions
of Buyer, or (c) thirty (30) days after the date such Supply System would have
been delivered to Buyer's Location had such delivery not been delayed due to the
acts or omissions of Buyer.
1. MONTHLY VOLUMES
Buyer has estimated that Buyer's monthly consumption of Product will be
approximately [****] cubic feet (the "Estimated Monthly Volume"). Seller will be
obligated hereunder to supply Product only up to [****]% of the Estimated
Monthly Volume. Seller will supply to Buyer Product in excess of [****]% of the
Estimated Monthly Volume ("Excess Product") to the extent that Seller, in its
sole discretion, deems that it has Excess Product available for Buyer, and Buyer
will pay Seller any additional costs incurred by Seller in supplying Excess
Product to Buyer. To the extent that Buyer has requirements for Excess Product
and Seller has Excess Product available for Buyer, Buyer will purchase such
requirements from Seller.
2. MODIFICATIONS TO THE PRODUCT SUPPLY AGREEMENT
As to the supply of Product pursuant to this Rider, the Agreement is hereby
modified as follows:
A. The first sentence of Article 2. REQUIREMENTS is changed to the
following:
Seller will sell to Buyer, and Buyer will purchase from Seller, on the
terms and conditions hereinafter set forth, Buyer's [****], in gaseous and
liquid form, of Product for use at Buyer's Location(s), and if the operations
at Buyer's Location(s) are expanded, then at such expanded location(s).
B. In Article 3. PRICES AND PAYMENT, Terms of Payment will be net [****]
days from date of invoice.
C. Sentence five, "At Seller's request, and subject to Buyer's ability to
do so, Seller and Buyer will utilize Electronic Data Interchange for invoicing
and paying of invoices." is removed from Article 3.
D. Paragraph two of Article 5. SUPPLY SYSTEMS AND SUPPLY SYSTEM SITES will
be modified to include the following, "Seller will advise Buyer of all planned
shutdowns in advance. Seller's best efforts will be made to coordinate with
Buyer's downtime."
Liquid Argon Rider
Page 2
E. Article 7. PRICE CHANGES is replaced in its entirety as follows:
Prices may be adjusted [****] with the first adjustment no sooner than
[****]. Buyer and Seller agree to negotiate in good faith the amount of the
price adjustment. Should Buyer and Seller fail to agree on the amount of the
adjustment, Seller will have the right to adjust the Prices by giving Buyer not
less than thirty (30) days prior written notice of the effective date of such
adjustment; provided, however, that if said Prices are increased and Buyer,
within thirty (30) days after said notice, furnishes Seller with credible
written evidence that Buyer can purchase Product to which such increased Prices
apply from a responsible supplier for a specified term in like quantities at
lower prices under similar terms and conditions, and Seller, within thirty (30)
days thereafter, does not agree to either meet said lower prices or rescind the
notice of increased Prices, Buyer will have the right within ten (10) days
thereafter to terminate this Agreement as to the supply of Product for which
such lower prices are offered by giving Seller not less than ten (10) days prior
written notice. If Buyer exercises such right of termination, the cost of
removal of the Supply System used for the supply of such Product will be borne
by Buyer. If Seller agrees to meet the lower prices or rescind the notice of
increased Prices, Seller may extend the term of the Rider covering such Product
for a period equal to the competitive offer if the term of the offer is greater
that the period remaining in the Basic Term of such Rider. If Seller does not
agree to meet the lower prices or rescind the notice of increased Prices, Seller
will continue to supply product to Buyer for a period of six (6) months or until
advised by Buyer that the new supplier is in position to supply, whichever comes
first.
F. Monthly Service Charge will remain firm for the duration of the Basic
Term.
G. The next to last sentence of Article 8. CONTINGENCIES will be modified
to read, "Buyer will pay or reimburse Seller for any additional costs incurred
relating to the delivery of any Product to Buyer during a contingency upon
consent of Buyer."
H. The last sentence of Article 8 is deleted in its entirety.
I. In Article 11, ASSIGNMENT, insert the following at the end of the first
sentence after "Seller" and before the period:
" ; and provided further that Buyer will have the right to assign this
Agreement to an affiliate of Buyer upon Buyer's demonstration, to the
satisfaction of Seller, that such affiliate has, and will likely maintain during
the term of the Agreement, the financial resources and operational capability to
perform its obligations under this Agreement"
J. In Article 11, in the second sentence, insert after "Buyer's
Location(s)" and before the comma:
"during the first four (4) years after First Delivery"
Liquid Argon Rider
Page 3
IN WITNESS WHEREOF, the parties have caused this Rider to be executed as
of the date written above,
REPUBLIC ENGINEERED PRODUCTS LLC. PRAXALR, INC.
Submitted by: Xxxxx Xxxxx
Accepted by: /s/ X.X. Xxxxx Accepted by: /s/ Xxxxxx X. Xxxxx
-------------------------- ---------------------
Name: X.X. Xxxxx Name: Xxxxxx X. Xxxxx
-------------------------------- ---------------------------
(printed) (printed)
Title: Vice President Title: Area Director
Date: 9/20/02 Date: 9/23/02
Liquid Argon Rider
Page 4
[PRAXAIR LOGO]
PRODUCT RIDER
This Rider, dated as of July 31, 2002 (the "Effective Date"), is made a
part of the agreement between Republic Engineered Products ("Buyer") and
Praxair, Inc. ("Seller") numbered 720940 and dated July 31, 2002 (the
"Agreement").
As to this Rider, the following terms will have the meanings set forth
below:
"Product" means liquid argon.
"Address" means:
For Seller: For Buyer:
Praxair, Inc. Republic Engineered Products LLC
X.X. Xxx 0000 0000 Xxxxxxx Xxxxxxx
00 Xxx Xxxxxxxxx Xxxx Xxxxx, Xxxx 00000-0000
Xxxxxxx, XX 00000-0000
Attn: Contract Administrator Attn: Mr. Xxx Xxxxxx
Telephone: (000) 000-0000 or 2082 Telephone: 330/000-0000
Fax: (000) 000-0000 Fax: 330/000-0000
"Basic Term" means the period commencing on October 1, 2002 and continuing for
[****] years.
"Buyer's Location" means Canton, Ohio.
"Seller's Shipping Point" means Canton, Ohio.
"Supply System" means, as to the following Supply System(s):
Item
No. Description
---- ------------------------
1 Melt Shop - PX # 0100953 300 60,000
"Specifications" mean:
Supply System
Item No. Specifications
1 [****]%
"Prices" are:
Supply System Charge per 100 Cubic
Item No. Feet of Product Monthly Service Charge
------------- -------------------- ----------------------
1 $[****] $[****]
Liquid Argon Rider
Page 1
1. MONTHLY VOLUMES
Buyer has estimated that Buyer's monthly consumption of Product will be
approximately [****] cubic feet (the "Estimated Monthly Volume"). Seller will be
obligated hereunder to supply Product only up to [****]% of the Estimated
Monthly Volume. Seller will supply to Buyer Product in excess of [****]% of the
Estimated Monthly Volume ("Excess Product") to the extent that Seller, in its
sole discretion, deems that it has Excess Product available for Buyer, and Buyer
will pay Seller any additional costs incurred by Seller in supplying Excess
Product to Buyer. To the extent that Buyer has requirements for Excess Product
and Seller has Excess Product available for Buyer, Buyer will purchase such
requirements from Seller.
2. MODIFICATIONS TO THE PRODUCT SUPPLY AGREEMENT
As to the supply of Product pursuant to this Rider, the Agreement is hereby
modified as follows:
A. The first sentence of Article 2. REQUIREMENTS is changed to the
following:
Seller will sell to Buyer, and Buyer will purchase from Seller, on the
terms and conditions hereinafter set forth, Buyer's [****], in gaseous and
liquid form, of Product for use at Buyer's Location(s), and if the operations
at Buyer's Location(s) are expanded, then at such expanded location(s).
B. In Article 3. PRICES AND PAYMENT, Terms of Payment will be net [****]
days from date of invoice.
C. Sentence five, "At Seller's request, and subject to Buyer's ability to
do so, Seller and Buyer will utilize Electronic Data Interchange for invoicing
and paying of invoices." is removed from Article 3.
D. Paragraph two of Article 5. SUPPLY SYSTEMS AND SUPPLY SYSTEM SITES will
be modified to include the following, "Seller will advise Buyer of all planned
shutdowns in advance. Seller's best efforts will be made to coordinate with
Buyer's downtime."
E. Article 7. PRICE CHANGES is replaced in its entirety as follows:
Prices may be adjusted [****] with the first adjustment no sooner than
[****]. Buyer and Seller agree to negotiate in good faith the amount of the
price adjustment. Should Buyer and Seller fail to agree on the amount of the
adjustment, Seller will have the right to adjust the Prices by giving Buyer not
less than thirty (30) days prior written notice of the effective date of such
adjustment; provided, however, that if said Prices are increased and Buyer,
within thirty (30) days after said notice, furnishes Seller with credible
written evidence that Buyer can purchase Product to which such increased Prices
apply from a responsible supplier for a specified term in like quantities at
lower prices under similar terms and conditions, and Seller, within thirty (30)
days thereafter, does not agree to either meet said lower prices or rescind the
notice of increased Prices. Buyer will have the right within ten (10) days
thereafter to terminate this Agreement as to the supply of Product for which
such lower prices are offered by giving Seller not less than ten (10) days prior
written notice. If Buyer exercises such right of termination, the cost of
removal of the Supply System used for the supply of such Product will be borne
by Buyer. If Seller agrees to meet the lower prices or rescind the notice of
increased Prices, Seller may extend the term of the Rider
Liquid Argon Rider
Page 2
covering such Product for a period equal to the competitive offer if the term of
the offer is greater that the period remaining in the Basic Term of such Rider.
If Seller does not agree to meet the lower prices or rescind the notice of
increased Prices, Seller will continue to supply product to Buyer for a period
of six (6) months or until advised by Buyer that the new supplier is in position
to supply, whichever comes first.
F. Monthly Service Charge will remain firm for the duration of the Basic
Term.
G. The next to last sentence of Article 8. CONTINGENCIES will be modified
to read, "Buyer will pay or reimburse Seller for any additional costs incurred
relating to the delivery of any Product to Buyer during a contingency upon
consent of Buyer."
H. The last sentence of Article 8 is deleted in its entirety.
I. In Article 11, ASSIGNMENT, insert the following at the end of the first
sentence after "Seller" and before the period:
" ; and provided further that Buyer will have the right to assign this
Agreement to an affiliate of Buyer upon Buyer's demonstration, to the
satisfaction of Seller, that such affiliate has, and will likely maintain during
the term of the Agreement, the financial resources and operational capability to
perform its obligations under this Agreement"
J. In Article 11, in the second sentence, insert after "Buyer's
Location(s)" and before the comma:
"during the first four (4) years after First Delivery"
IN WITNESS WHEREOF, the parties have caused this Rider to be executed as
of the date written above,
REPUBLIC ENGINEERED PRODUCTS LLC. PRAXALR, INC.
Submitted by: Xxxxx Xxxxx
Accepted by: /s/ X.X. Xxxxx Accepted by: /s/ Xxxxxx X. Xxxxx
-------------------------- ---------------------
Name: X.X. Xxxxx Name: Xxxxxx X. Xxxxx
-------------------------------- ----------------------------
(printed) (printed)
Title: Vice President Title: Director, Merchant &
On-Site Products
Date: 10/9/02 Date: 10/18/02
Liquid Argon Rider
Page 3
[PRAXAIR LOGO]
PRODUCT RIDER
This Rider, dated as of March 26, 2004 (the "Effective Date"), is made a
part of the Agreement between Republic Engineered Products ("Buyer") and
Praxair, Inc. ("Seller") numbered 720940 and dated July 31, 2002 (the
"Agreement").
As to this Rider, the following terms will have the meanings set forth
below:
"Product" means oxygen.
"Address" means:
For Seller: For Buyer:
Praxair, Inc. Republic Engineered Products LLC
X.X. Xxx 0000 0000 Xxxxxxx Xxxxxxx
00 Xxx Xxxxxxxxx Xxxx Xxxxx, Xxxx 00000-0000
Xxxxxxx, XX 00000-0000
Attn: Contract Administrator Attn: Mr. Xxx Xxxxxx
Telephone: (000) 000-0000 or 2082 Telephone: 330/000-0000
Fax: (000) 000-0000 Fax: 330/000-0000
"Basic Term" means the period commencing on the Effective Date and continuing
until [****].
"Buyer's Location" means Canton, Ohio.
"Seller's Shipping Point" means Canton.
"Supply System" means, as to the following Supply System(s):
Pressure At Peak Flow
Item Battery Limits Average Flow Peak Flow Duration
No. Description (psig) Rate (cfh) Rate (cfh) (hrs/day)
---- --------------------- -------------- ------------ ---------- ---------
1 Product Supply System 100 5000
The costs associated with installing each Supply System and connecting it to
Buyer's Product distribution system, including, without limitation, any
transportation and rigging costs, will be borne by Seller.
"Specifications" mean:
Supply System
Item No. Specifications
1 [****]%
Oxygen Rider
Page 1
"Prices" are:
Supply System Charge per 100 Cubic
Item No. Feet of Product Monthly Service Charge
------------- -------------------- ----------------------
1 $[****] $[****]
The Monthly Service Charge for each Supply System will commence on the earliest
of the following dates: (a) First Delivery of Product to or from such Supply
System, (b) thirty (30) days after the date such Supply System is delivered to
Buyer's Location in the event Seller is delayed in tendering delivery of Product
to Buyer from such Supply System and such delay is due to the acts or omissions
of Buyer, or (c) thirty (30) days after the date such Supply System would have
been delivered to Buyer's Location had such delivery not been delayed due to the
acts or omissions of Buyer.
1. MONTHLY VOLUMES
Buyer has estimated that Buyer's monthly consumption of Product will be
approximately [****] cubic feet (the "Estimated Monthly Volume"). Seller will be
obligated hereunder to supply Product only up to [****]% of the Estimated
Monthly Volume. Seller will supply to Buyer Product in excess of [****]% of the
Estimated Monthly Volume ("Excess Product") to the extent that Seller, in its
sole discretion, deems that it has Excess Product available for Buyer, and Buyer
will pay Seller any additional costs incurred by Seller in supplying Excess
Product to Buyer. To the extent that Buyer has requirements for Excess Product
and Seller has Excess Product available for Buyer, Buyer will purchase such
requirements from Seller.
2. MODIFICATIONS TO THE PRODUCT SUPPLY AGREEMENT
As to the supply of Product pursuant to this Rider, the Agreement is hereby
modified as follows:
A. The first sentence of Article 2. REQUIREMENTS is changed to the
following:
Seller will sell to Buyer, and Buyer will purchase from Seller, on the
terms and conditions hereinafter set forth, Buyer's [****], in gaseous and
liquid form, of Product for use at Buyer's Location(s), and if the operations
at Buyer's Location(s) are expanded, then at such expanded location(s).
B. In Article 3. PRICES AND PAYMENT, Terms of Payment will be net [****]
days from date of invoice.
C. Sentence five, "At Seller's request, and subject to Buyer's ability to
do so, Seller and Buyer will utilize Electronic Data Interchange for invoicing
and paying of invoices." is removed from Article 3.
D. Paragraph two of Article 5. SUPPLY SYSTEMS AND SUPPLY SYSTEM SITES will
be modified to include the following, "Seller will advise Buyer of all planned
shutdowns in advance. Seller's best efforts will be made to coordinate with
Buyer's downtime."
Oxygen Rider
Page 2
E. Article 7. PRICE CHANGES is replaced in its entirety as follows:
Prices may be adjusted [****] with the first adjustment no sooner than
[****]. Buyer and Seller agree to negotiate in good faith the amount of the
price adjustment. Should Buyer and Seller fail to agree on the amount of the
adjustment, Seller will have the right to adjust the Prices by giving Buyer not
less than thirty (30) days prior written notice of the effective date of such
adjustment; provided, however, that if said Prices are increased and Buyer,
within thirty (30) days after said notice, furnishes Seller with credible
written evidence that Buyer can purchase Product to which such increased Prices
apply from a responsible supplier for a specified term in like quantities at
lower prices under similar terms and conditions, and Seller, within thirty (30)
days thereafter, does not agree to either meet said lower prices or rescind the
notice of increased Prices, Buyer will have the right within ten (10) days
thereafter to terminate this Agreement as to the supply of Product for which
such lower prices are offered by giving Seller not less than ten (10) days prior
written notice. If Buyer exercises such right of termination, the cost of
removal of the Supply System used for the supply of such Product will be borne
by Buyer. If Seller agrees to meet the lower prices or rescind the notice of
increased Prices, Seller may extend the term of the Rider covering such Product
for a period equal to the competitive offer if the term of the offer is greater
that the period remaining in the Basic Term of such Rider. If Seller does not
agree to meet the lower prices or rescind the notice of increased Prices, Seller
will continue to supply product to Buyer for a period of six (6) months or until
advised by Buyer that the new supplier is in position to supply, whichever comes
first.
F. Monthly Service Charge will remain firm for the duration of the Basic
Term.
G. The next to last sentence of Article 8. CONTINGENCIES will be modified
to read, "Buyer will pay or reimburse Seller for any additional costs incurred
relating to the delivery of any Product to Buyer during a contingency upon
consent of Buyer."
H. The last sentence of Article 8 is deleted in its entirety.
I. In Article 11, ASSIGNMENT, insert the following at the end of the first
sentence after "Seller" and before the period:
" ; and provided further that Buyer will have the right to assign this
Agreement to an affiliate of Buyer upon Buyer's demonstration, to the
satisfaction of Seller, that such affiliate has, and will likely maintain during
the term of the Agreement, the financial resources and operational capability to
perform its obligations under this Agreement"
J. In Article 11, in the second sentence, insert after "Buyer's
Location(s)" and before the comma:
"during the first four (4) years after First Delivery"
Oxygen Rider
Page 3
IN WITNESS WHEREOF, the parties have caused this Rider to be executed as
of the date written above.
REPUBLIC ENGINEERED PRODUCTS, INC. PRAXALR, INC.
Submitted by: Xxxxxx X. Xxxx
Accepted by: /s/ Xxxx X. Xxxxxx Accepted by: /s/ Xxxxxx X. Xxx
----------------------- ---------------------
Name: Xxxx X. Xxxxxx Name: Xxxxxx X. Xxx
----------------------------- ----------------------------
(printed) (printed)
Title: Vice President of Purchasing Title: Director, Merchant &
On-site Products
Date: 4/28/04 Date: 05/06/04
Oxygen Rider
Page 4
