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Exhibit 10.8
AMENDED AND RESTATED
SALES REPRESENTATION AGREEMENT
This Sales Representation Agreement (this "Agreement") is the amendment
and restatement of an agreement entered into as of the 8th day of December, 1988
and amended April 18, 1991, April 17, 1992, April 1, 1996 and October 30, 1998
between Geneva Steel Company, a Utah corporation ("Geneva"), and Mannesmann Pipe
& Steel Corporation, a New York corporation ("Mannesmann").
Agreement
In consideration of the mutual promises contained herein, and other
valuable consideration, the receipt and sufficiency of which are acknowledged,
the parties hereto agree as follows:
1. Grant. Subject to the terms and conditions contained in this
Agreement, Geneva grants to Mannesmann the sole and exclusive right to purchase
from Geneva, sell and distribute to customers now or hereafter located in the
geographical area defined on Exhibit A, attached hereto (the "Territory"), those
steel products produced by Geneva that are more particularly described on
Exhibit B attached hereto ("Products"); provided, however, Geneva shall have the
option to exclude from time to time from the "Products" and from the terms of
this Agreement any pipe produced at the pipe xxxxx located at the Geneva Steel
Works. For purposes of this Section 1, a customer will be deemed to be located
within the Territory only if that customer's purchasing and delivery locations
for the Products it orders are located within the Territory.
2. Reservation of Right. Notwithstanding Section 1 of this Agreement,
Geneva reserves the right, subject to Section 3.11 of this Agreement, to sell
Products and other materials produced by Geneva ("other materials") to any
customer in or outside of the Territory; provided, however, that subject to
Section 3.2 hereof, Geneva agrees, so long as Mannesmann is complying with its
obligations pursuant to Section 3.1 hereof, not to expand its marketing or sales
efforts within the Territory for the purpose of increasing the number of
customers within the Territory that purchase Products directly from Geneva. Any
contact relating to the marketing or sale of Products by Geneva with any
customer within the Territory, other than those customers identified on Exhibit
C attached hereto ("Geneva Direct Customers"), shall be coordinated with
Mannesmann, in advance when practicable. Geneva shall have the right to contact
any customer or potential customer in the Territory and Mannesmann shall provide
Geneva with the names and addresses of the appropriate contact persons with such
customers or potential customers for such purpose; provided, however, that no
sales of Products by Geneva to any customer of Mannesmann in the Territory
(other than to a Geneva Direct Customer) shall be concluded without notice of
such sale to Mannesmann.
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3. Sale of Product.
3.1 Sales Effort of Mannesmann. Mannesmann will use its best
efforts to engage in a consistent, deliberate sales effort that is, in good
faith, calculated to optimize the sale of Products in the Territory (including
with respect to product mix and overall margin optimization), the net mill
return to Geneva, and the integration of such effort with Geneva's sales efforts
and overall sales philosophy. For purposes of this Agreement, "net mill return
to Geneva" shall mean the total sales price actually received by Geneva for
Products or other materials, as the case may be, less transportation charges
incurred in delivering Products or other materials to customers.
3.2 Direct Sales. Geneva may, at Geneva's option and
notwithstanding any provision hereof to the contrary, sell Products and other
materials directly to any customer or potential customer within the Territory if
such customer or potential customer expresses its refusal to place an order
through Mannesmann or if Mannesmann refuses to take an order from such customer
or potential customer. Mannesmann agrees to provide Geneva with prompt notice of
any refusal by a customer or potential customer to place an order through
Mannesmann or Mannesmann's refusal to accept an order from any customer or
potential customer and to facilitate the placement of an order by such customer
or potential customer directly with Geneva. Geneva agrees to exercise such
option in a manner as not to unduly disrupt service by Mannesmann to customer or
potential customer.
3.3 Employees.
a. Geneva shall make available to Mannesmann the services
of certain of Geneva's employees (the "Employees"). The number and identity of
the Employees, and the terms and conditions of such employment, shall be
mutually acceptable to Geneva and Mannesmann, including the replacement or
removal of the Employees by Mannesmann during the term of this Agreement. The
Employees shall assist Mannesmann in its marketing, sales, servicing and
invoicing of Product to customers of Mannesmann in the Territory pursuant to
this Agreement; provided, that any such Employees that have historically been
involved in the sale of pipe products may be excluded by Geneva from the
provisions of this Agreement in the event Geneva exercises its right to exclude
pipe products from the definition of "Products" pursuant to Section 1 hereof.
Mannesmann shall reimburse Geneva on demand for the salary, payroll burden and
benefits (except as otherwise specified in Sections 3.3(b) and 3.3(c)) incurred
by Geneva in connection with the Employees. Mannesmann shall be solely
responsible for any expenses incurred by the Employees related to such
assistance and shall ensure that the
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Employees comply with Mannesmann's expense reimbursement guidelines with respect
thereto.
b. Geneva shall continue to maintain all insurance
coverage applicable to the Employees consistent with coverage provided with
respect to other employees of Geneva, including but not limited to workers'
compensation, health insurance, life insurance, short term disability and long
term disability. Geneva's workers' compensation insurance shall be endorsed to
name Mannesmann as an alternate employer using Endorsement Number WC-00-03-01.
Mannesmann shall obtain an endorsement to its existing commercial general
liability insurance extending coverage to the acts and omissions of the
Employees and naming Geneva as an additional insured and shall issue to Geneva a
waiver of subrogation claims.
c. Mannesmann shall indemnify, defend, and hold harmless
Geneva from and against any claims against Geneva: (i) by third parties for any
acts or omissions of the Employees while performing services for Mannesmann or
any of the customers of Mannesmann; and (ii) by any Employee for claims other
than personal injuries to the claimant, to the extent such claim arises out of
or relates to acts or omissions of other Employees or the acts or omissions of
employees of Mannesmann in the scope of such employee's employment. Geneva shall
indemnify, hold harmless and defend Mannesmann from and against any claims
against Mannesmann by any Employee (or beneficiaries of or persons claiming
through any Employee): (i) arising out of acts or omissions of other employees
of Geneva in the scope of such Employee's employment; and (ii) arising out of or
relating to claims or expenses for personal injuries, health benefits, life
insurance, short term disability or long term disability to the extent Geneva
would be otherwise liable for such claims pursuant to Geneva's plans, policies
or practices. Mannesmann hereby waives all claims against Geneva arising out of
or as a result of any claim being filed by an Employee against Mannesmann to the
extent such claim against Mannesmann is covered by the workers' compensation
insurance endorsement obtained with respect to the Employees by Geneva pursuant
to Section 3.3b.
d. During the term of this Agreement, and for one (1) year
after the termination or expiration of the term of this Agreement, Mannesmann
shall not attempt to hire, hire or otherwise cause, induce or suggest that any
such employee terminate employment with Geneva.
3.4 Acceptance of Orders. Geneva shall, in its sole discretion,
have the right to accept or reject any order for Products or other materials
that is submitted by Mannesmann; provided, however, that any such order shall be
deemed accepted by Geneva if notice of a rejection thereof is not given to
Mannesmann
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as soon as is reasonable under the circumstances, but in no event
later than (a) within five business days after Geneva received such order from
Mannesmann, if such order is wholly for Products or other materials that are
generally and regularly produced by Geneva and at Geneva's then current and
applicable published price for such Products or other materials, and (b) within
ten business days after Geneva receives such order from Mannesmann if any
portion of such order is for Products or other materials that are not generally
and regularly produced by Geneva, or at a price that is lower than Geneva's then
current and applicable published price for such Products or other materials.
3.5 Sales Forecast Reports.
a. On or before the first business day of the calendar
month preceding each calendar quarter Mannesmann shall submit to Geneva, in
writing, a forecast for such quarter that sets forth Mannesmann's anticipated
sales of Products.
b. On a best effort basis by Mannesmann, each such
forecast shall include a breakdown of anticipated sales for each calendar month
falling within the calendar quarter covered by such forecast and shall otherwise
include such details as are reasonably requested by Geneva upon reasonable
notice to Mannesmann.
3.6 Sales Representatives. Mannesmann shall, at all times,
maintain a sales force and support personnel that are adequate and qualified to
exploit and develop Mannesmann's marketing opportunities within the Territory.
Geneva reserves the right to approve or disapprove of any salesperson that
Mannesmann proposes to engage to sell Products within the Territory that was not
selling Products for Mannesmann in the Territory on October 31, 1998. Any such
salesperson that Geneva, in its reasonable judgment, disapproves shall not be
used by Mannesmann to sell Products within the Territory.
3.7 Efforts of Geneva to Hire Sales Personnel. Mannesmann agrees
that it will not interfere in any way with efforts by Geneva to hire any
Mannesmann salesperson to sell Products or other materials directly for Geneva.
Such efforts may include, without restriction, obtaining letters of intent from
Mannesmann salespersons to become employed by Geneva upon the termination of
this Agreement. Mannesmann agrees that it will take no action that is
detrimental to any salesperson of Mannesmann by reason of such salesperson's
signing such a letter of intent or agreeing to become employed by Geneva.
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3.8 Marketing.
a. Mannesmann agrees to incorporate into the marketing
effort it makes to sell Products within the Territory, on a good faith basis,
any reasonable directions or suggestions made by Geneva with respect to:
(i) marketing techniques and general policies
Mannesmann adopts with respect to the sale of Products within the Territory; and
(ii) information, including without restriction,
literature, brochures, and verbal instructions given by sales personnel to
customers and prospective customers within the Territory for the purpose of
soliciting sales of Products.
b. Without limiting the generality of Section 3.8a,
Mannesmann agrees that, without the specific prior consent of Geneva, it will
not, sell or distribute within the Territory, any plate, wide coil, or pipe
product of any manufacturer or distributor (other than Geneva) that competes
with any of the Products. As used in Sections 3.8a and 3.8b, a Product or other
materials shall not be deemed to be "produced" by Geneva until such time as such
Product is actually available for order by customers.
c. Mannesmann hereby grants to Geneva a right of first
refusal for the term of this Agreement to supply Mannesmann with all Narrow Coil
Products (as hereinafter defined) to be sold by, through or under Mannesmann
within the Territory. "Narrow Coil Products" shall mean unprocessed hot rolled
bands with (i) a width of seventy-six (76) inches or narrower and (ii) a
thickness in the range between, and including, nine one-hundredths of one
(0.090) inch and above. Prior to accepting from a customer any purchase order or
entering into any agreement to sell any Narrow Coil Product, Mannesmann shall
provide Geneva with a written notice of each inquiry received by it with respect
to the sale of Narrow Coil Product. Such notice shall contain all of the terms
and conditions applicable to such inquiry and a copy, if available, of such
inquiry (an "Inquiry Notice"). Geneva shall provide to Mannesmann written notice
of Geneva's exercise of such right of first refusal within two (2) business days
of Geneva's receipt of an Inquiry Notice. In the event that Geneva elects to
supply Mannesmann with the Narrow Coil Product identified in an Inquiry Notice,
Geneva shall proceed to supply such Narrow Coil Product to Mannesmann in
accordance with terms and conditions of the Inquiry Notice as supplemented by
this Agreement; provided, however, that in the event of any conflict between
such Inquiry Notice and this Agreement, the terms and conditions of this
Agreement shall control.
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3.9 Market Data Reports. Mannesmann will submit to Geneva on a
regular basis, but not less frequently than four times each month, a marketing
report that will include:
a. a brief description of the marketing efforts on behalf
of Geneva that have been made since the last marketing report submitted by
Mannesmann;
b. customer responses to Geneva's currently quoted prices
for Products;
c. price structures, to the extent available, of steel
products produced by competitors of Geneva;
d. any general market data that could reasonably be
expected to have an effect on Geneva's pricing structure of Products or sales
efforts in the Territory;
e. customers and prospective customers that have been
contacted in an effort to sell Products, including, but not limited to, Narrow
Coil Products, within the Territory;
f. a report for each customer that has, since the last
report, expressed to Mannesmann, its employees or agents, any dissatisfaction
with Mannesmann, Geneva, Products or other materials, with details regarding the
reason for any such dissatisfaction; and
g. a record of all competitive price reports made by
Mannesmann during the previous week or which had not been included in a
marketing report previously supplied to Geneva.
3.10 Pricing of Products. Geneva shall, on or before the 45th day
prior to the first business day of each calendar quarter, notify Mannesmann of
its pricing structure of Products for such quarter that apply in the Territory.
Geneva will make a good faith effort to maintain pricing structures throughout
each quarter at a competitive level and to immediately notify Mannesmann of any
price change applicable in the Territory. Mannesmann shall maintain records of
competitive price reports in such detail as Geneva shall request and shall
include such reports in the marketing report as provided in Section 3.9g.
3.11 Sales Allowance, Commission, and Discount.
a. Mannesmann shall be entitled to receive as a sales
allowance with respect to sales to Mannesmann of Products and other materials
shipped, or anticipated to be shipped, to Mannesmann customers located within
the Territory an amount (the "Sales Allowance") equal to the total of (x) the
Variable Allowance
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for such sale plus (y) 1.13% of the difference between the following (1) the
invoice amount with respect to such sale and (2) the Variable Allowance for such
sale. The allowance provided in this Section 3.11a shall be deducted by
Mannesmann, at the times hereafter indicated, from the funds remitted by
Mannesmann to Geneva.
b. The Variable Allowance for sales referred to in Section
3.11a is a percentage of the net invoice amount for each ton of Product and
other material shipped by Geneva (including direct sales by Geneva other than
sales excepted under Section 3.12) for which a Sales Allowance is provided
pursuant to this Agreement in each sales year equal to 1.5% on each ton so
shipped up to and including 1,000,000 tons in the aggregate and 1% on each ton
so shipped above 1,000,000 tons in the aggregate; provided, however, the
Variable Allowance for sales of electric resistance welded pipe shall be 1.75%;
provided, further, however, the tons of such pipe shipped shall not be included
in the tons of Product and other materials shipped by Geneva for purposes of
determining the percentage used in the calculation of the Variable Allowance.
c. Following each calendar quarter in any sales year
either party hereto may propose an adjustment to the portion of the Sales
Allowance described in Section 3.11a(y) above, to be effective for sales during
the then current calendar quarter, reflecting changes in (1) the Prime Rate, as
hereinafter defined, and (2) the average aging of receivables for accounts of
Mannesmann arising from sales by Mannesmann of Products and other materials
purchased by Mannesmann under this Agreement from those in effect on the date
hereof; provided, that Mannesmann shall use its best efforts to maintain the
average aging of receivables as low as possible with a target of not more than
forty-five calendar days. Such proposal shall be accompanied by detailed
justification for such adjustment. In the event the parties hereto fail to agree
to the adjustment proposed, such element of the Sales Allowance then in effect
shall continue until an adjustment is agreed.
d. Any commission payable by Geneva to Mannesmann in
connection with the direct sale of Product by Geneva shall be paid by Geneva to
Mannesmann upon receipt by Geneva of payment for such Product.
e. Mannesmann shall be entitled to receive as an
additional discount with respect to each Payment Invoice for Products sold to
Mannesmann an amount equal to the product of (x) the average number of days in
the period commencing on the date that payment for such Products is received by
Geneva in accordance with Section 5.2 of this Agreement and ending on the date
on which such Products are shipped (the "Storage Period"); multiplied by (y) (i)
the average of the prime rate published in the Money Rates
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section of the Wall Street Journal (the "Prime Rate") on each day during the
Storage Period divided by (ii) 365; and multiplied by (z) (i) the amount set
forth on the Payment Invoice with respect to such Product less (ii) the Sales
Allowance retained by Mannesmann or otherwise remitted to Mannesmann by Geneva
with respect to such Payment Invoice. The initial Storage Period and the average
Prime Rate shall be 21 days and 8.25%, respectively. The discount provided in
this Section 3.11e shall be deducted by Mannesmann, at the times hereafter
indicated, from the funds remitted by Mannesmann to Geneva.
f. Following each calendar quarter in any sales year
either party hereto may propose an adjustment to the discount described in
Section 3.11e above, to be effective for Payment Invoices during the then
current calendar quarter, reflecting changes in (1) the Prime Rate and (2) the
Storage Period. In the event the parties hereto fail to agree to the adjustment
proposed, such element of the discount then in effect shall continue until an
adjustment is agreed.
3.12 Exception. Notwithstanding Section 3.11 of this Agreement,
Geneva shall not be obligated to pay any sales allowance, discount or commission
to Mannesmann for any Product that is sold to any customer identified on Exhibit
C to this Agreement or to any customer or potential customer with whom
Mannesmann has refused to deal or to whom Mannesmann has elected not to sell or
for any other materials that are sold by Geneva to any customer located within
the Territory. Geneva will have the right to sell such Product or other
materials directly or through another sales representative.
3.13 Title to the Products.
a. Title to the Products shall pass to Mannesmann upon the
Products being Identified to the Agreement (as defined below). Promptly upon
assignment of Products to an order, all such Products shall be stamped, or the
lots consisting of such Products shall be marked, with a tracking number (a
"Tracking Number") that shall be entered into Geneva's inventory records.
b. Products shall be deemed "Identified to the Agreement"
on the earlier of:
(i) At the time at which the Tracking Number for
such Product or for the lot of which such Product is a part, is identified in
Geneva's inventory records as relating to a particular purchase order placed by
Mannesmann; provided, however, that any Product Identified to the Agreement that
is placed in any of the inventory stockpiles, other than a stockpile relating to
the Mannesmann purchase order to which such Product has been
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identified, herein the "Geneva Inventory Stockpiles," shall be deemed to be
"fungible" for purposes of Article 7 of the Utah Uniform Commercial Code (Any
fungible Product that is Identified to the Agreement and is located in the
"Geneva Inventory Stockpiles," may be replaced by or substituted for any other
Product of equal quantity, metallurgical quality and width, thickness and
length; provided, that such replacement or substitute Product is concurrently
Identified to the Agreement, as provided in the foregoing part of this Section
3.13b(i)); or
(ii) At the time at which an invoice is issued to
Mannesmann for designated Products, regardless of whether the requirements of
3.13b(i) have been met.
c. Mannesmann may elect to file a protective Form UCC-1
with the Utah Department of Commerce, Division of Corporations and Commercial
Code to give public notice of its interest in the Products with respect to which
title has passed to Mannesmann.
d. Mannesmann acknowledges and consents to the storage of
the Products on Geneva's premises whether such Products have or have not been
Identified to the Agreement.
3.14 Books and Records. Geneva shall have the right, exercisable
from time to time upon reasonable advance notice, to audit and copy those
portions of Mannesmann's books and records necessary to determine Mannesmann's
compliance with its obligations under this Section 3. Geneva shall have no right
to audit or copy any (a) confidential and proprietary information pertaining to
a customer or supplier (other than customers of Products), (b) Mannesmann's
books and records relating to salaries of Mannesmann employees, or (c)
Mannesmann's books and records unrelated to Mannesmann's obligations hereunder.
4. Warranty Provisions.
4.1 Warranty. The Products and other materials produced by Geneva
and sold under this Agreement are warranted to conform to contract
specifications. The obligations of Geneva under this warranty are limited to an
amount equal to the original invoice price of Products or other materials that
have been reported by Mannesmann not to conform to such specifications and that
have been so found by Geneva after inspection, such amount to be paid either by
delivery of replacement product or offset against future invoices as the parties
may in good faith mutually agree.
4.2 Claims. All claims under the warranty set forth at Section
4.1 shall be made in writing by Mannesmann within five working days after
receipt by Mannesmann from its customer of
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notice of defect. Geneva will not be responsible for any claim if notice thereof
is not received by Geneva promptly following delivery by Geneva to Mannesmann or
Mannesmann's customer, whichever is earlier, of the Products or other materials
produced by Geneva that are the subject of such claim. Notwithstanding the
foregoing, Geneva will not, in any event, be responsible for such a claim if
notice thereof is not received by Geneva within the same time limit Geneva
contractually prescribes from time to time for customers to whom Xxxxxx xxxxx
directly. Geneva agrees in good faith to settle any warranty claim in a timely
fashion.
4.3 Sole Remedy for Defects. Mannesmann agrees to accept the
warranty hereinabove contained in lieu of all other warranties, statutory or
otherwise, as the sole and exclusive remedy against Geneva for any defects of
any nature whatsoever. ANY STATUTORY OR IMPLIED WARRANTY OF MERCHANTABILITY OR
FITNESS FOR A PARTICULAR PURPOSE IS HEREBY WAIVED. EXCEPT FOR THE WARRANTY SET
FORTH IN SECTION 4.1 AND THE REMEDY PROVIDED IN SECTION 4.1, ALL WARRANTIES,
UNDERTAKINGS AND CONDITIONS, EXPRESS OR IMPLIED, BY STATUTE OR OTHERWISE, ARE
HEREBY EXCLUDED. IN NO EVENT SHALL GENEVA BE LIABLE FOR ANY DIRECT, INDIRECT,
SPECIAL OR CONSEQUENTIAL DAMAGES SUFFERED BY MANNESMANN OR ANY CUSTOMER OF
MANNESMANN.
4.4 Disputes Regarding Warranty. If Geneva and Mannesmann do not
agree regarding the merits of a warranty claim, the disagreement will be settled
by the good faith appointment by the parties of a qualified and neutral
inspection company that is agreed to by the parties to investigate and report to
the parties within a reasonable time regarding the merits of the warranty claim.
The results of such report shall be final and binding on the parties hereto.
5. Credit Risk and Payment.
5.1 Credit Risk. The credit risk on all Products and other
materials shipped by Geneva upon Mannesmann's order shall be borne by Geneva.
5.2 Payment for Products. Notwithstanding any provision in this
Agreement to the contrary, with respect to any purchase order received from
Mannesmann by Geneva under this Agreement, as soon as practicable after a
Product is Identified to the Agreement, Geneva shall forward, by U.S. Mail or,
at the discretion of Geneva, a faster medium such as overnight courier or
facsimile transmission, invoices relating to such Product, and the other
materials subject to such purchase order, (each a "Payment Invoice"). Each
Payment Invoice shall specify the purchase order to which it relates, the
estimated promise date with respect thereto and the status of production or
shipment of the order. With respect to the Products for which title has passed
to
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Mannesmann but that are stored in Geneva's inventory stockpiles, Geneva shall
include with the Payment Invoice for such Products a mill test report for such
Product and a warehouse receipt, acknowledging Mannesmann's title to the
Products, the form of which shall be reasonably acceptable to Geneva and
Mannesmann and be sufficient as a warehouse receipt pursuant to Article 7 of the
Utah Uniform Commercial Code. Mannesmann shall, every Monday and every Thursday
of each week, remit to Geneva by wire transfer in U.S. funds the full amount of
all Payment Invoices from Geneva with respect to which such payment has not
previously been made less the Sales Allowance owed Mannesmann for shipments to
be made pursuant to such orders and the discount identified in Section 3.11e of
this Agreement. In addition to the information required above, upon shipment of
the Products, Geneva shall provide to Mannesmann the mill test report and bills
of lading for such Products.
5.3 Billing for Products. Mannesmann shall promptly, after
receiving Geneva's xxxx of lading with respect to any Product or other
materials, xxxx its customer for the Product or other materials subject to such
invoice. Each of Mannesmann's xxxxxxxx shall be on a net 30 day term or such
other term as may be agreed to by Geneva in writing and in advance of Geneva's
shipment. Thereafter, Mannesmann will use its best efforts to collect full
payment of such invoice from its customer. Geneva and Mannesmann agree to meet
periodically to reconcile their records with respect to the transactions under
this Agreement to assure that Mannesmann is paid the applicable Sales Allowance
and, if necessary, to review and adjust the procedures for billing and payment
hereunder.
5.4 Assignment of Uncollected Accounts. Mannesmann shall keep an
accurate accounting of all customer accounts receivable for customers to which
Mannesmann sells Products or other materials. With respect to Products and other
materials shipped by Geneva pursuant to a purchase order given by Mannesmann to
Geneva pursuant hereto, Mannesmann may, at its option, notify Geneva of the
failure of a customer to pay any invoice from Mannesmann for such Products and
other materials within 90 days from shipment date, specifying the customer, the
amount unpaid, the invoice relating to the account and the reason, if any,
asserted for non-payment. Within five business days after receipt by Geneva of
such notice by Mannesmann, (which notice shall be timely given under the
circumstances) Geneva shall remit to Mannesmann by wire transfer in U.S. funds
the amount of the invoice from Mannesmann to its customer which has not been
paid less the Variable Allowance in the case of a sale as to which a Variable
Allowance was paid. Geneva shall use its best efforts to collect each account
receivable with respect to which Geneva has so remitted funds and will remit to
Mannesmann, within 30 days after collection, Mannesmann's portion of the
Variable Allowance on the amount so collected. As to any invoice so paid by
Geneva, Mannesmann hereby
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absolutely, irrevocably, presently and unconditionally without further act or
deed of any kind or nature whatsoever assigns to Geneva, without recourse to
Mannesmann, the accounts receivable represented thereby, all present and future
rights to collect from such customer any such unpaid amounts, interest thereon
and other amounts in accordance with the terms of the Agreement between
Mannesmann and such customer. Mannesmann shall further (a) give Geneva
reasonable access to its sales records to allow Geneva to verify accounts
receivable so assigned to Geneva, (b) upon request of Geneva, execute such other
documents and instruments as Geneva may reasonably determine to be necessary to
evidence such assignment and (c) cooperate with Geneva as Geneva reasonably
determines necessary to collect such accounts receivable.
6. Force Majeure. Geneva will not be liable for any failure or delay in
delivery caused by an act of God, labor strike, accident, governmental
restriction, raw material shortage, or any other cause beyond Geneva's control,
or because of equipment failure.
7. Special or Consequential Damage. Neither party hereto shall be liable
to the other party for any special or consequential damages arising from the
breach of any obligation under this Agreement.
8. Relationship of the Parties. The relationship between the parties
hereto shall be one of independent contractors. Neither party hereto is
authorized to bind the other contractually or otherwise, or to make any
representation not permitted herein on behalf of the other party without such
other party's consent.
9. Right to Set-Off. Geneva and Mannesmann agree that if Geneva
purchases materials from Mannesmann during the term of this Agreement
("Materials"), and fails to pay for such Materials upon the terms agreed to
between the parties, the parties will automatically set-off any such monies that
are past due and owing by Geneva to Mannesmann for the Materials against monies
due and owed by Mannesmann to Geneva for Products and other materials. For
purposes of this Agreement, Materials shall mean, without limitation, any goods
the parties may agree upon from time to time. Geneva and Mannesmann agree to use
their best efforts to promptly, diligently and in good faith, establish and
maintain appropriate accounting procedures necessary to implement any set-off
allowed for in this Section 9.
10. Term of Agreement. This Agreement shall expire at the close of
business on September 30, 2001, if notice of such termination is given by a
party hereto to the other party not less than six (6) months prior to such
termination date. If timely notice of such termination is not given, the term of
this Agreement
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shall be extended automatically for an additional three year term and for
additional three year terms thereafter until notice of termination is given by a
party hereto to the other party not less than six (6) months prior to the next
termination date. Notwithstanding the foregoing, Geneva shall have the option to
terminate this Agreement effective December 31, 1999 by giving written notice of
such termination to the other party hereto not less than six (6) months prior to
the effective date of such termination.
11. Termination. Notwithstanding Section 10, this Agreement may be
terminated:
11.1 by the non-defaulting party if the other party is
adjudicated bankrupt, makes a general assignment for the benefit of creditors,
admits in writing its inability to pay its debts as they become due, ceases to
conduct business in the ordinary course, has a receiver appointed, files a
petition under any bankruptcy, reorganization, debt arrangement, insolvency,
liquidation or distribution law or a petition under any bankruptcy,
reorganization, debt arrangement, insolvency, liquidation or distribution law is
filed against it and is not dismissed within sixty days;
11.2 by the non-defaulting party if the other party materially
breaches any of the terms of this Agreement, unless such breach is cured within
thirty days after written notice thereof;
11.3 by Geneva if Xxxx Xxxxx no longer is employed by Mannesmann
or his areas of responsibility in relation to Mannesmann's obligations under
this Agreement are materially decreased in any way. Mannesmann acknowledges that
Xxxx Xxxxx is and shall remain the employee of Mannesmann primarily responsible
for Geneva's account with Mannesmann and the performance by Mannesmann of its
obligations hereunder; or
11.4 by Geneva if Mannesmann violates the provisions of Section
21 hereof relating to the transfer or assignment of this Agreement by
Mannesmann. For the purposes of this Section 11.4, any consent required for an
assignment by Mannesmann under Section 21 of this Agreement may be withheld in
Geneva's sole and absolute discretion if the assignee is unacceptable to Geneva.
For the purposes of this Section 11.4, "transfer or assignment" shall include
any transfer or assignment by merger, consolidation, liquidation or transfer of
assets or a transfer of control of Mannesmann, without the prior written consent
of Geneva, which consent may be withheld in Geneva's sole and absolute
discretion. "Control" for the purposes of this Agreement shall mean the sale or
transfer of a controlling percentage of the capital stock of
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Mannesmann or the sale of at least twenty-five percent (25%) of the value of the
assets of Mannesmann.
Provided, however, that if, and only if, Mannesmann gives Geneva written notice
of a transfer or assignment (a "Transfer Notice") prior to termination of this
Agreement by Geneva pursuant to Section 11.4 of this Agreement, then within
fifteen (15) business days after Geneva's receipt of such Transfer Notice,
Geneva shall give Mannesmann written notice setting forth the effective date of
such termination, if any, which effective date shall not be less than thirty
(30) nor more than ninety (90) days from the date of Geneva's receipt of such
Transfer Notice.
11.5 With respect to Sections 11.3 and 11.4 only, termination of
this Agreement shall be Geneva's sole remedy.
12. Post-Termination Transition. Following a timely notice of
termination pursuant to Section 10 of this Agreement, or actual termination
effected pursuant to Section 11 of this Agreement, Mannesmann shall promptly
afford Geneva its full good faith cooperation in aiding Geneva to effect a
transition of Geneva's sales force to replace Mannesmann's sales force that
deals with purchasers of the Products and other materials. The cooperation
contemplated by this Section 12 includes all acts of Mannesmann reasonably
necessary in such transition including, but not limited to, the following:
12.1 Mannesmann will provide Geneva with a comprehensive list of
customers to whom Mannesmann has sold Products or other materials pursuant to
this Agreement.
12.2 For each customer on the list supplied pursuant to Section
12.1, Mannesmann will supply Geneva with the following to the extent that such
is in the possession of Mannesmann:
(a) all historical sales information kept by Mannesmann
relating to Products and other materials purchased by Mannesmann pursuant to
this Agreement;
(b) the names of the employees or other representatives of
such customer that are Mannesmann's primary sales contact for such customer;
(c) the names of key management personnel of such
customer;
(d) the names of all competitor steel product suppliers
from whom such customer purchases;
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(e) the address of the headquarters and of each branch
location of such customer;
(f) a list of all equipment owned by such customer that is
used or that can be used to process Products and/or other materials, including
any technical specifications relating to such equipment that Mannesmann may
possess; and
(g) a list of all steel products such customer is capable
of producing.
12.3 Mannesmann will facilitate an introduction of the employees
or other representatives of such customer responsible for making purchasing
decisions for Products and other materials to the person or persons designated
by Geneva at such time and under such circumstances that, in the best judgment
of Mannesmann, will afford Geneva's designated representative with the best
opportunity to effect a transition of such customer's purchasing Products and
other materials directly from Geneva.
13. Promotion of Geneva. Mannesmann will use its best efforts at all
times that this Agreement is in force to promote and maintain a positive
reputation for Geneva among Mannesmann's customers and potential customers with
a view to minimizing any inconvenience, concern or confusion on the part of any
such customer or potential customer caused by Geneva's taking over all sales
efforts in the Territory upon termination of this Agreement.
14. Insurance. Geneva shall cause Mannesmann to be named as an
additional insured on any product liability insurance obtained by Geneva that
covers Products and other materials. Geneva will direct the carrier of any such
insurance to forward to Mannesmann a certificate of insurance naming Mannesmann
as an additional insured on the policy obtained and to give Mannesmann 90 days
notice of the termination, for any reason, of such policy.
15. Notice. Any notice required or permitted hereunder shall be in
writing and sent by registered or certified mail, postage prepaid, as follows:
If to Geneva:
Geneva Steel Company
Attention: Xxx X. Xxxxxxx
X.X. Xxx 0000
Xxxxx, Xxxx 00000
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with a copy to:
Xxxx Xxxxxxxx Xxxxx Xxx & Xxxxxxxx
000 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxxx Xxxx Xxxx, Xxxx 00000
Attention: Xxxxx X. Xxxxxxxxx
If to Mannesmann:
Mannesmann Pipe & Steel Corporation
0000 Xxxx Xxx Xxxxxxxxx, 00xx Xxxxx
Xxxxxxx, Xxxxx 00000
or at such other address as either party to this Agreement may from time to time
designate by notice in writing to the other party. Notice shall be deemed given
two business days after being mailed in the manner set forth above.
16. Amendments. Any amendment to this Agreement must be in writing, and
signed by all parties to this Agreement.
17. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Utah.
18. Required Performance. The failure of either party to this Agreement
to require the performance of any term of this Agreement or the waiver by either
party of any breach under this Agreement shall not prevent the subsequent
enforcement of such term and shall not be deemed a waiver of any subsequent
breach.
19. Costs Upon Default. In the event of a default under the terms of
this Agreement, the non-defaulting party shall be entitled to recover from the
defaulting party, all costs of the non-defaulting party, including a reasonable
attorney's fee, in enforcing the rights of the non-defaulting party hereunder.
20. Severability. If any provision of this Agreement is held to be
invalid or void by any court of competent jurisdiction, such provision shall be
deemed severable from the remainder of this Agreement and shall not effect any
other provision hereof. If such provision shall be deemed invalid due to its
scope or breadth, such provision shall be deemed valid to the extent of the
scope or breadth permitted by law.
21. Assignability. Neither party to this Agreement shall assign any
rights or delegate any obligations of such party hereunder, without the prior
written consent of the other party hereto. Geneva may withhold any such consent
in its sole and absolute discretion. Consent to any assignment shall not operate
as a waiver of the necessity for consent to any subsequent
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assignment and the terms of such consent shall be binding on any person holding
by, through or under Mannesmann.
22. Merger. This Agreement (including all Exhibits hereto, which
Exhibits are hereby incorporated herein by this reference) contains the entire
understanding between the parties with respect to the subject matter hereof and
supercedes all prior understandings between the parties. In the event of any
conflict between the terms of this Agreement and any purchase order or any
document submitted by Mannesmann to Geneva, this Agreement shall govern.
23. Confidentiality. Each of Mannesmann and Geneva acknowledges that
information, data and documents disclosed or produced by the other party hereto
(the "Disclosing Party") pursuant to this Agreement, orally or in writing,
including but not limited to, the terms and conditions of this Agreement, unless
otherwise specifically designated, shall be deemed "confidential information"
within the meaning of this Agreement. Except with prior written consent of the
Disclosing Party, all confidential information is solely for use in connection
with the performance of the party to which such confidential information was
disclosed or produced (the "Recipient Party") of its obligations hereunder and
shall not be used by the Recipient Party or disclosed to any other person except
with the prior written consent of the Disclosing Party in each instance.
"Confidential information" shall not include any such information, data or
documents that (a) at the time of disclosure is or subsequently becomes, through
no fault of such party, part of the public domain, (b) was known to the party to
whom it was disclosed, or (c) was disclosed to the other party by a third party
legally entitled to do so.
24. Counterparts and Facsimile Signatures. This Agreement may be
executed in counterparts, each of which shall be deemed to be an original and
all of which together shall constitute but one and the same instrument.
Counterparts and signatures transmitted by facsimile shall be valid as
originals.
25. Business Days. For purposes of this Agreement "business day" shall
mean every Monday through Friday except state, federal and company holidays.
26. Inurement. This Agreement shall be binding upon and inure to the
benefit of Geneva and Mannesmann and their respective successors and assigns.
27. Effective Date. This Agreement shall be effective as of November 16,
1998 unless the parties mutually agree in writing on a different effective date.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement
effective as of October 30, 1998.
GENEVA STEEL COMPANY
By: /s/ XXXXXXX X. XXXXXXX
-------------------------------
Name: Xxxxxxx X. Xxxxxxx
Its: Senior VP of Marketing and
Distribution
MANNESMANN PIPE & STEEL CORPORATION
By: /s/ RUDOLF GEORG
-------------------------------
Name: Rudolf Georg
------------------------------
Its: President
------------------------------
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EXHIBIT A
(Attached to and forming a part of the
Amended and Restated
Sales Representation Agreement)
The term "Territory" shall include all of the United States of America
excluding Alaska and Hawaii.
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EXHIBIT B
(Attached to and forming a part of the
Amended and Restated
Sales Representation Agreement)
The term "Products" shall mean all steel products manufactured within
the mill capabilities by Geneva on October 31, 1998 or thereafter, including hot
rolled bands and sheets in thickness of 12 gauge and above, black or temper
passed coils, hot rolled plate (including but not limited to strip mill plate),
floor plate, welded pipe, and slabs; provided, however, that such term shall not
include non-prime or secondary items, products for sale to Geneva or any of its
affiliates or ingots or at Geneva's option, pipe products produced by Geneva or
at the pipe xxxxx located at the Geneva Steel Works.
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EXHIBIT C
(Attached to and forming a part of the
Amended and Restated
Sales Representation Agreement)
Geneva Direct Customers within the Territory
Huntco Steel Inc.
