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EXHIBIT 10.8
SUPPLY AGREEMENT
BETWEEN
BARMET ALUMINUM CORPORATION
AND
IMCO RECYCLING INC.
Prepared by:
Xxxxxxx & Xxxxxxx
Xxxxxx X. Xxxxxxxx
Xxxxxx X. Xxxxxxx
00 Xxxx Xxxxxx Xxxxxx
Xxxxx, XX 00000
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TABLE OF CONTENTS
I. Construction of Facility ................................................ 2
II. Agreement to Sell and to Purchase ....................................... 3
III. Term .................................................................... 5
IV. Tolling Operation ....................................................... 5
V. Price, Packaging and Terms and Conditions of Sale ....................... 8
VI. Warranty and Related Rights ............................................. 9
VII. Force Majeure ........................................................... 11
VIII. Proprietary and Confidential Information ................................ 11
IX. Patent Infringement ..................................................... 15
X. Employment Matters ...................................................... 16
XI. Notices and Communication ............................................... 16
XII. Independent Status of Parties and Limitation of Authority ............... 18
XIII. Arbitration ............................................................ 18
XIV. Indemnity ............................................................... 19
XV. Buyer's Option to Participate ........................................... 20
XVI. Rights of First Refusal ................................................. 21
XVII. Purchase of Personal Property ........................................... 22
XVIII. Closing Procedure ....................................................... 23
XIX. Termination ............................................................. 24
XX. Representations ......................................................... 25
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XXI. Miscellaneous ........................................................... 28
Exhibit "A" (Quantity and Quality of Product Delivered) ..................... 33
Exhibit "B" (Scrap Receiving Procedures) .................................... 36
Schedule 5.01 (Price) ....................................................... 00
Xxxxxxx "X" (Xxxxxxxx Recoveries) ........................................... 45
Exhibit "D" (Base Price Adjustment) ......................................... 50
Exhibit "E" (Waste Minimization) ............................................ 52
Exhibit "F" (Supplier's Records) ............................................ 54
Exhibit "G" (Sample Calculation of Recoverable Costs) ....................... 64
Schedule 15.01 (Exercise and Terms of Option) ............................... 00
Xxxxxxx "X" (Xxxxxxxxxx of Facility Rights of First Refusal) ................ 71
Schedule 16.01 (Participation Formula) ...................................... 78
Exhibit "I" (Memorandum of Rockport Rights of First Refusal) ................ 79
Exhibit "J" (List of and Purchase Price for Personal Property) .............. 87
Exhibit "K" (Xxxx of Sale) .................................................. 88
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SUPPLY AGREEMENT
This Supply Agreement (the "Agreement") is made and entered into as of this
2nd day of March, 1992, by and between Barmet Aluminum Corporation, an Ohio
corporation with its principal place of business at 000 X. Xxxxxxxx Xxxx, Xxxxx,
Xxxx 00000 (referred to in this Agreement and Schedules as "Buyer" and in
Exhibits as "Barmet") and IMCO Recycling Inc., a Delaware corporation with its
principal executive offices at 0000 Xxxxx X'Xxxxxx Xxxx., Xxxxx 000, Xxxxxxx
Tower at Xxxxxxxx Square, Irving, Texas 75039 (referred to in this Agreement and
Schedules as "Supplier" and in Exhibits as "IMCO").
WITNESSETH
WHEREAS, Buyer is engaged in the business of producing aluminum rolled
products at its rolling mill facility in Uhrichsville, Ohio (the "Mill"); and
WHEREAS, Buyer currently operates a Salt Plant (the "Salt Plant"), Crushing
Plant (the "Crushing Plant") and Furnace Operations (the "Furnace Operations")
in Uhrichsville, Ohio as support operations for the Mill;
WHEREAS, Supplier has agreed, subject to the terms hereof, to construct a
recycling and processing facility in Uhrichsville, Ohio for the purpose of
recycling dross, aluminum scrap and concentrates into ingot or molten metal (the
"Facility");
WHEREAS, once the First Phase of the Facility as described below is
completed, its recycling capacity will be sufficient to fulfill Buyer's
requirements for secondary metal as described in Exhibit "A" and enable Buyer to
discontinue its Furnace Operations; and
WHEREAS, the parties desire to enter into a Supply Agreement whereby
Supplier will provide tolling/converting services to Buyer so as to satisfy
Buyer's requirements of secondary metal in the form of ingot and molten metal
and Buyer will purchase said services from Supplier.
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NOW, THEREFORE, and in consideration of the mutual covenants and
conditions set forth herein the adequacy and sufficiency of which is hereby
acknowledged and intending to be legally bound, the parties agree as follows:
ARTICLE 1. CONSTRUCTION OF FACILITY
SECTION 1.01 CONSTRUCTION OF FACILITY BY SUPPLIER. Subject to the terms of
this Agreement, Supplier agrees to proceed with the construction of the Facility
and to complete the installation of five (5) furnaces in the Facility within ten
(10) months after all environmental and construction permits required for the
construction of the Facility have been duly procured by Supplier. The period
beginning on the date hereof and ending upon the first date that all five (5)
furnaces in the Facility become operational is referred to herein as the "First
Phase". Supplier agrees to construct additional furnaces as may be necessary to
satisfy its supply obligations stated in this Agreement and in Exhibit "A".
Supplier shall complete the installation of said additional furnaces in the
Facility by April 1, 1993 or within ten (10) months after all environmental and
construction permits required for the construction of said additional furnaces
have been duly procured by Supplier, whichever is later. Supplier hereby agrees
to use its best efforts to obtain all permits required to construct the initial
five (5) furnaces, as well as the additional furnaces necessary to satisfy its
supply obligations stated in this Agreement and in Exhibit "A". Supplier agrees
to cause the Facility to be constructed so that, in Supplier's reasonable
judgment, it will contain adequate parking, storage and loading space to
facilitate incoming and outgoing truck deliveries.
SECTION 1.02 CLOSURE OF FURNACE OPERATIONS. Buyer shall completely cease
its Furnace
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Operations for production purposes upon the completion of the First Phase
provided Supplier then has sufficient furnace capacity to satisfy Buyer's
requirements of the Product as defined in Section 2.01 below.
ARTICLE II. AGREEMENT TO SELL AND TO PURCHASE
SECTION 2.01 PURCHASE OF REQUIREMENTS. After the completion of the First
Phase Supplier shall be Buyer's exclusive source of secondary ingot and molten
metal with respect to the Scrap Based Alloys used by the Mill in conformance
with the specifications detailed in Exhibit "A" hereto (the "Product"). For
purposes of this Agreement, the term Scrap Based Alloys shall refer to all
alloys except alloys 1100, 1350, 8111 and 5052 and any additional high purity
alloys which may be excluded by agreement as listed in the Registration Record
of Aluminum Association Designation and Chemical Composition Limits for Wrought
Aluminum and Wrought Aluminum Alloys ("Green Sheet"). Buyer shall, however, be
permitted to purchase nominal quantities of primary alloys and other
"sweeteners" from vendors other than Supplier to achieve the standards set forth
for Scrap Based Alloys in said Green Sheet. In determining the source of raw
materials to be used in the production of Buyer's alloys, it is the intent of
Buyer to maximize the use of Scrap in the composition of Scrap Based Alloys.
Exceptions to this Section 2.01 for ingot tolling arrangements which Buyer has
with certain of its sheet customers shall be communicated to Supplier in
advance, provided, however, total annual volume for such ingot tolling of Scrap
Based Alloys shall not exceed ten (10%) percent of the installed capacity per
Exhibit "A" hereto. Except as otherwise provided herein, Buyer shall be
prohibited from purchasing any of the Product from any other source, whether on
a
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tolling/conversion or a purchase basis.
SECTION 2.02 SUPPLY OBLIGATIONS. After the completion of the First Phase
and subject to the terms of this Agreement, Supplier shall toll/convert
sufficient quantities of Buyer's Scrap (as described in Section 4.01 below) as
ordered by Buyer from time to time so as to satisfy Buyer's quantity
requirements. Supplier shall not be prohibited from selling any ingot or molten
metal it produces at the Facility to purchasers other than Buyer assuming
Supplier at all times meets its supply obligations to Buyer hereunder.
Notwithstanding the foregoing, it is intended that Buyer shall be the principal
customer of the Facility and shall be accorded priority treatment meaning that
Buyer's orders shall receive priority scheduling over Supplier's other
customers.
In the event Supplier agrees to sell or toll any ingot, molten metal or any
other product or accepts any Scrap at the Facility for any purchaser other than
Buyer, Supplier shall not comingle the Scrap, waste, dunnage, or finished
products relating to any other purchasers with those of Buyer. Supplier shall
maintain and make available to Buyer accurate and complete records of the Scrap,
waste, dunnage, and finished products relating to services performed for Buyer
under this Agreement and separate records for services provided or products
produced for other purchasers. The exact content of said records shall include
such detail as may reasonably be requested by Buyer from time to time but shall
include, but not be limited to, the data described in Exhibit "F". The parties
may, but shall not be obligated to, enter into a separate agreement with regard
to Buyer recycling any saltcake generated as a result of Supplier providing
services or products to any other purchasers. If such a separate agreement is
entered into, the parties will allocate and define obligations with respect to
disposal of waste generated as a result
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of Buyer providing said services to Supplier.
ARTICLE III. TERM
SECTION 3.01 TERM. This Agreement shall be effective as of the date first
written above. Subject to the provisions of Section 19.01 below, the obligations
of the parties with respect to the delivery and processing of Scrap (as defined
in Section 4.01) shall commence at the beginning of the First Contract Year, as
defined in this Section 3.01 and shall be in effect for a ten (10) year term
thereafter (the "Initial Term"). Buyer shall have the option to extend the term
of this Agreement for an additional ten (10) year period at the expiration of
the Initial Term based upon the price and terms contained herein (the "Extended
Term"). For purposes of this Agreement the term "Contract Year" shall refer to
consecutive twelve (12) month periods commencing on the earlier of the first day
of the first month in which Supplier processes a minimum of ten million (10MM
lbs.) pounds of Buyer's Scrap or notifies Buyer that sufficient capacity has
been installed at the Facility to enable it to process said ten million (10MM
lbs) pounds per month. Similarly "Contract Quarter" shall refer to each
consecutive three (3) month period beginning on the first day of the First
Contract Year.
ARTICLE IV. TOLLING OPERATION
SECTION 4.01 TOLLING OPERATION.
(a) Buyer will order and request Scrap, as described herein, to be
delivered to Supplier in accordance with Exhibit "B" hereto. Upon request by
Buyer, Supplier will, at its expense, receive and accept said Scrap. For
purposes of this Agreement, Scrap shall be classified into the categories listed
in Exhibit "C" and shall be defined therein (the "Scrap").
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Buyer shall make available for the use of Supplier and Supplier shall at its
expense pick up or cause to be picked up concentrates from the Buyer's Crushing
Plant, flux from the Buyer's Salt Plant, and dross from Buyer's Mill for its use
in the processing of Scrap for Buyer hereunder. To the extent Supplier utilizes
any flux, concentrates, and/or dross provided by Buyer in providing services or
products to other purchasers as permitted pursuant to Section 2.02 hereof,
Supplier shall pay to Buyer the then prevailing market price of said flux,
concentrates, and dross. The quantities of Scrap, flux, concentrates, and dross
supplied by Buyer shall be sufficient so that, assuming the Supplier obtains
recovery rates set forth in Exhibit "C", it will be able to fill Buyer's total
requirements of the Product. All Scrap, flux, concentrate and dross supplied by
Buyer to Supplier hereunder, as well as the resulting ingot and/or molten metal,
shall remain the sole property of and be at all times titled in the name of
Buyer, and Supplier shall execute and deliver to Buyer upon reasonable request
by and at the expense of Buyer, documentation to evidence and/or perfect such
retention of title. The flux provided to Supplier described herein shall be
comprised of a minimum of forty percent (40%) potassium chloride with the
remainder of said flux consisting of sodium chloride. In the event, but only to
the extent, the flux supplied hereunder consists of less than forty (40%)
percent potassium chloride, the Supplier may add potash to the flux in amounts
necessary to raise the potash content of the flux to the level which would have
been accomplished had the flux originally consisted of forty (40%) percent
potassium chloride. Subject to the inspection and verification requirements set
forth in Section 5.04 hereof with respect to the potassium chloride
concentration in the flux, Buyer shall promptly reimburse Supplier for its cost
of the potash added to the flux hereunder.
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(b) Supplier shall at its expense deliver or cause to be delivered all
saltcake and rotary furnace baghouse dust generated as a result of Supplier's
tolling operations for Buyer at the Facility to the Buyer's Crushing Plant.
Supplier shall be solely responsible for disposing of all waste, impurities,
refuse or other substance or material produced as a result of the Facility
operations not otherwise required to be delivered to Buyer hereunder.
Buyer shall indemnify and hold Supplier, its officers, directors and
shareholders harmless from any and all damages, losses, liabilities, suits,
actions, demands, proceedings (whether legal or administrative), and expenses
(including but not limited to attorneys' fees) suffered by Supplier which arise
directly or indirectly out of Buyer's treatment, storage, recycling or disposal
of saltcake and rotary furnace baghouse dust. Buyer shall from time to time
provide to Supplier the information and documentation reasonably requested by
Supplier regarding the disposal or recycling of saltcake and rotary furnace
baghouse dust by Buyer.
(c) Supplier shall, as part of its tolling operations, supply and at all
times maintain at its expense a sufficient number of crucibles and sow molds
necessary to comply with its supply obligations under this Agreement.
(d) Except as otherwise provided in Section 7.01, Supplier shall at all
times during the period of performance of this Agreement, provide and augment as
necessary a work force and Plant Capacity fully adequate to perform and comply
with this Agreement. The term "Plant Capacity" as used herein shall include but
shall not be limited to, engineers, skilled and unskilled workmen, supervision,
materials, supplies, tools, equipment and facilities.
(e) In the event that Buyer offers to sell any excess flux generated at its
Salt Plant,
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Supplier shall purchase at the then prevailing delivered price so much of said
flux as is then needed to satisfy Supplier's requirement of flux at all of its
other recycling locations other than the Facility, as well as the Facility's
requirements for service or product provided to other purchasers.
ARTICLE V. PRICE, PACKAGING AND TERMS AND CONDITIONS OF SALE
SECTION 5.01 PRICE. The compensation and remuneration which Buyer shall be
required to pay Supplier in consideration of Supplier's performance of its
obligations hereunder is set forth in Schedule 5.01 hereto.
SECTION 5.02 PACKAGING AND DELIVERY PROCEDURE. Packaging, preparation for
transport, delivery, and identification of Product items shall be in accordance
with Exhibit "A" hereto. Subject to Section 7.01 hereof, time shall be of the
essence with respect to Supplier's delivery deadlines as set forth in said
Exhibit "A", but Supplier shall have the right to toll the Buyer's Scrap at any
of Supplier's other plants if the Facility is not able to produce the quantities
of Scrap, dross and concentrates set forth on Exhibit "A" by the dates indicated
thereon. Supplier shall at its expense, deliver or cause to be delivered to the
Mill all ingot or molten metal processed pursuant to this Agreement.
SECTION 5.03 TERMS AND CONDITIONS OF SALE. All orders placed and services
performed pursuant to this Agreement shall be subject only to the terms of this
Agreement. Notwithstanding the fact that either party may submit purchase
orders, acknowledgments, invoices, or similar documentation, any terms or
conditions contained in said documents shall be superseded by the terms hereof.
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SECTION 5.04 INSPECTION OF SUPPLIER'S FACILITY. Supplier shall grant to
Buyer access to the Facility during normal business hours upon prior written
notice for the purpose of verifying Supplier's compliance with the terms of
this Agreement, including but not limited to inspecting Buyer's Scrap,
verifying the accuracy of Supplier's testing of the potassium chloride
concentration in the flux, and verifying that Supplier is maintaining accurate
and complete records as described in Section 2.02 of this Agreement.
ARTICLE VI. WARRANTY AND RELATED RIGHTS
SECTION 6.01 WARRANTY. Supplier warrants that the Product will meet the
specifications set forth in Exhibit "A" in all material respects. In the event
Supplier fails to achieve the recovery rates set forth in Exhibit "C", Supplier
shall be obligated to pay the penalty set forth therein either in cash or such
other method acceptable to Buyer.
SECTION 6.02 QUALITY. The Product shall meet the manufacturing, design,
performance, and appearance specifications as described in Exhibit "A". Should
any of the Product fail to meet said specifications, Supplier shall immediately
initiate procedural changes required to correct the deficient condition at its
expense. In no event shall Buyer be entitled to consequential damages but this
exclusion shall in no event limit or restrict Buyer's right to recover direct
and incidental damage for Supplier's breach.
SECTION 6.03 QUANTITY. Buyer shall furnish Supplier with a written
ninety (90) day month by month rolling forecast on or before the first day of
each month which shall estimate Buyer's requirements of the Product during the
next three months. The parties hereby acknowledge that said forecast for the
third (3rd) month in each ninety (90) day period shall be
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utilized for planning purposes only and Buyer shall incur no obligation to
purchase the volume of Product listed on said forecast for the third (3rd)
month in each ninety (90) day period nor shall the Supplier be relieved of any
of its obligations to satisfy Buyer's requirements hereunder in the event that
the Buyer's forecast proves to be substantially lower than the volume of
Product eventually purchased. Subject to Section 7.01, Buyer agrees that it
will purchase a minimum of ninety (90%) percent of the volume of Product listed
in said forecast for the second month, and Supplier agrees that it will accept
orders from Buyer for a maximum of one hundred ten (110%) percent of the volume
of Product listed in said forecast for the second month, or Supplier's full
capacity, whichever is less. Supplier agrees to use its reasonable best efforts
to fully satisfy Buyer's requirements hereunder. Upon a minimum of sixteen (16)
hours notice from Buyer, Supplier agrees to make changes in its production
schedule with respect to the types of alloys requested by Buyer. Notwithstanding
Section 2.02 hereof, Supplier shall not be required to accept orders during the
year totalling in excess of the volume set forth in Exhibit "A".
Notwithstanding Section 2.01, Buyer has made no representations or warranties
with regard to the level of ingot or molten metal it will require during the
term of this Agreement or any extension thereof and shall have no obligation to
purchase any minimum level of tolling/conversion services from Supplier except
as provided in this Section 6.03.
SECTION 6.04 DISCLAIMER OF OTHER WARRANTIES. EXCEPT FOR THE WARRANTIES
CONTAINED IN THIS ARTICLE VI, SUPPLIER MAKES NO WARRANTY THAT THE PRODUCT
COVERED BY THIS AGREEMENT IS MERCHANTABLE OR FIT FOR ANY PARTICULAR PURPOSE AND
THERE ARE NO WARRANTIES, EXPRESS OR IMPLIED, WHICH EXTEND BEYOND THIS ARTICLE
VI.
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ARTICLE VII. FORCE MAJEURE
SECTION 7.01 FORCE MAJEURE. In any event, and in addition to all other
limitations stated herein, the parties hereto shall not be liable for any act,
omission, result, or consequence, including but not limited to any delay in
delivery or performance, which is due to any act of God, the prior performance
of any government order, local labor shortage, fire, flood, or casualty,
government regulation or requirement, shortage or failure of raw material,
supplies, fuel, power or transportation, breakdown of equipment, or any other
cause beyond said party's reasonable control whether of a similar or dissimilar
nature to those above enumerated, or due to any strike, labor dispute or
difference with workers, regardless of whether or not said party is capable of
settling such labor problem.
Upon the happening of any of the events described in this Section 7.01,
Supplier shall have the duty to use its reasonable best efforts to supply the
Product to the Buyer from its other plants if the Facility is not able, as a
result of one of the events described herein, to process the quantities of
Scrap, dross and concentrates set forth on Exhibit "A" at any time during the
term of this Agreement.
ARTICLE VIII. PROPRIETARY AND CONFIDENTIAL INFORMATION
SECTION 8.01 PROPRIETARY INFORMATION. Buyer and Supplier acknowledge that,
in the course of performing their duties under this Agreement, they will
necessarily be supplied with confidential and/or proprietary information of the
other party concerning business affairs, methods of operation, processes and
other information.
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(a) For purposes of this Article VIII, the term "Confidential Information"
shall mean any and all proprietary, trade secret, technical and other
confidential information concerning the business or affairs of the provider,
including but not limited to:
(i) information concerning the design or method of production of any
of the provider's products or services, including but not limited to all
records, files, memorandum, reports, price lists, customer lists, drawings,
plans, sketches, documents, equipment, production specifications,
manufacturing processes and methods, production machinery, quality
assurance methods, accounting systems, and the like;
(ii) discoveries, inventions, copyrights, whether patentable or not,
and including, without limitation, the nature and result of research,
development, manufacturing, marketing, planning and other business
activities and all designs, concepts, processes and operational techniques
in connection with Supplier's rotary furnaces;
(iii) ideas, concepts and mathematical formulas which comprise all of
said confidential information.
(b) It is agreed that the Confidential Information shall include all
information described in Section 8.01(a) except for any information:
(i) which is already in recipient's possession, by recipient's
development;
(ii) which is generally available to the public or which becomes
generally available to the public through no act or failure to act on the
part of recipient or recipient's agents or employees;
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(iii) which is disclosed to recipient on a non-confidential basis by a
third party having no obligation to provide it on a confidential basis or
to refrain from so doing; or
(iv) which the recipient can demonstrate by written record was
independently developed by persons who did not have access to provider's
information.
Specific information disclosed shall not be deemed to be in recipient's
possession, or part of public knowledge or literature, or available to recipient
merely because it can be assembled by selection of information previously in
recipient's possession or part of the public knowledge or literature or
available to recipient from a source other than the provider. Buyer hereby
acknowledges that Supplier's rotary furnace design, construction and process is
not generally available to the public.
SECTION 8.02 NON-DISCLOSURE. The parties hereby acknowledge that all
Confidential Information has been developed or acquired at considerable expense,
and has independent economic value from not being known or readily ascertainable
by others, and hereby covenant and agree that each will not communicate or
divulge to, or use for the benefit of itself or any other person, firm,
association, or corporation, without the prior written consent of the other
party, any Confidential Information or Know how (as defined in Section 8.03
below) that may be communicated to, acquired by, or learned by the other party
in the course of or as a result of this Agreement.
SECTION 8.03 KNOW HOW. The parties hereby recognize that the other party
has a property interest not only in the actual Confidential Information but also
in the ideas, concepts, and mathematical formulas ("Know how") which comprises
said information. In addition to each
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party's duty not to disclose said Know how as provided in Section 8.02, each
further agrees that it will not integrate any of the Know how into any of its
products which it develops.
SECTION 8.04 LABELING CONFIDENTIAL INFORMATION. The failure of either party
to designate or label any property or information as confidential, proprietary
or trade secret shall in no way affect the property's classification as such. In
no instance shall any information disclosed to the other party, regardless of
whether said information would constitute Confidential Information, be
reproduced by the other party in any form whatsoever.
SECTION 8.05 RETURN OF INFORMATION. Each party agrees, upon request of the
other party, to promptly deliver to the other party all drawings, blueprints,
manuals, letters, notes, notebooks, reports, computer software, compilations of
information and all other material or copies thereof, in whatever form,
including without limitation, electronic media or other tangible forms of any
information, obtained from the other party, regardless of whether said
information would constitute Confidential Information, which is in said party's
possession or under said party's control.
SECTION 8.06 USE BY PARTY'S EMPLOYEES AND AGENTS. The parties hereby agree
to limit the number of employees and agents that have access to the Confidential
Information to those whose knowledge of such information is essential for said
party to satisfy its obligations under this Agreement. Each party shall use its
reasonable best efforts to ensure that its employees and agents do not utilize
the Confidential Information except in the performance of their duties to said
party.
SECTION 8.07 PUBLICITY. Neither party shall use the name of the other in
publicity
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releases or advertising or for other promotional purposes, without securing the
prior written approval of the other party hereto, unless in the opinion of
counsel to such disclosing party, such disclosure is required by law in which
event a copy will be provided to the non-disclosing party.
SECTION 8.08 EQUITABLE RELIEF. The parties hereby acknowledge and agree
that a breach by it of the provisions of this Article VIII would cause the other
party irreparable injury and damage which could not be reasonably or adequately
compensated by damages at law. Therefore, each party expressly agrees that in
addition to any other remedies provided for by law, in equity or pursuant to
this Agreement, either party shall be entitled to injunctive or other equitable
relief to prevent a breach of this Article VIII by the other party.
ARTICLE IX. PATENT INFRINGEMENT
SECTION 9.01 PATENT INFRINGEMENT. Supplier shall, at its own expense,
defend any suit or proceeding brought against Buyer to the extent the same is
based upon a claim that any Product furnished by Supplier hereunder constitutes
an infringement of any patent of the United States, and Supplier shall pay all
damages and costs awarded in such action against Buyer. In case any Product
furnished hereunder is in such suit held to constitute infringement and their
use or sales enjoined, Supplier shall, at its expense, either:
(a) procure for Buyer the rights to continue using said Product;
(b) replace them with non-infringing Products;
(c) modify them so they become non-infringing, provided that the Products
are so modified to Buyer's satisfaction; or
(d) remove them and refund the purchase price and the transportation costs
thereof.
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ARTICLE X. EMPLOYMENT MATTERS
SECTION 10.01 PREFERENTIAL HIRING STATUS. Supplier agrees that it will give
preferential hiring consideration to Buyer's employees who shall lose their
employment as a result of Buyer ceasing its Furnace Operation. Said displaced
employees shall be hired by Supplier to staff its operations as needed, so long
as they are able to meet the employment standards established for all new hires
at the Facility. Supplier is not obligated to assume Buyer's obligations or
liabilities under any collective bargaining agreement covering any employees of
Buyer.
Supplier agrees that it shall not hire away employees from Buyer, except
those displaced employees described above. Except for those employees who lose
their employment as a result of Buyer ceasing its Furnace Operations, under no
circumstance shall Supplier employ any individual who was employed by Buyer
within a two (2) year period prior to the proposed date of hire unless prior
written permission is obtained from the President of Buyer.
ARTICLE XI. NOTICES AND COMMUNICATION
SECTION 11.01 NOTICES AND COMMUNICATION. Any notice or other communication
required or permitted hereunder shall be sufficiently given if delivered in
person, sent registered mail, postage prepaid, or by electronic transmission
confirmed by the recipient addressed as follows:
As to buyer:
(when personally delivered)
Barmet Aluminum Corporation
Attention:
Uhrichsville, Ohio
or
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(IF TRANSMITTED BY MAIL)
Barmet Aluminum Corporation
Attention: Xxxxx X. Xxxxx
000 X. Xxxxxxxx Xxxx
Xxxxx, Xxxx 00000
WITH A COPY TO:
Xxxxxx X. Xxxxxxxx
Xxxxxxx & Xxxxxxx
00 Xxxx Xxxxxx Xxxxxx
Xxxxx, Xxxx 00000
AS TO SUPPLIER:
(WHEN PERSONALLY DELIVERED)
IMCO Recycling Inc.
Attention: President
Irving, Texas
or
(IF TRANSMITTED BY MAIL)
IMCO Recycling Inc.
Attention: Xxxx X. Xxxxxx
0000 Xxxxx X'Xxxxxx Xxxx.
Xxxxx 000
Central Tower at Xxxxxxxx Xxxxxx
Xxxxxx, Xxxxx 00000
WITH A COPY TO:
Xxxxxx and Xxxxx, L.L.P.
Attention: Xxxx X. Xxxxxxxxx, Esq.
0000 Xxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxx 00000
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The date upon which any such communication is personally delivered or, if
such communication is transmitted by mail or electronic transmission, the date
upon which it is received by the addressee, shall be deemed the effective date
of such communication. Each party shall promptly advise the other in writing in
the event of any change in their respective addresses.
ARTICLE XII.
INDEPENDENT STATUS OF PARTIES AND LIMITATION OF AUTHORITY
SECTION 12.01 INDEPENDENT STATUS OF PARTIES. This Agreement does not
appoint either party the other's agent, or partner for any purpose whatsoever,
nor does it grant to either party any right or authority to create any
obligation or responsibility, expressed or implied, on behalf of or in the name
of the other party, nor to bind the other party in any manner whatsoever. Except
in the circumstances described in Article XV, no partnership or joint venture is
intended nor is created as a result of this Agreement but rather the parties
relationship shall be that of a Supplier/Customer and except as otherwise
provided herein, each shall be solely answerable for the cost and expenses,
consequences and damages arising out of their own acts and from the operation
and maintenance of their respective businesses.
ARTICLE XIII. ARBITRATION
SECTION 13.01 ARBITRATION OF CERTAIN DISPUTES. In the event that the
parties are unable to agree as to the allocation of certain increases in
operating costs and capital expenditures as described in Schedule 5.01(e), or in
the event of a dispute regarding either party's rights or obligations under
Sections 16.01 or 16.02 said allocation and/or any said disputes shall be
finally
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settled by arbitration as provided herein. In the event of any such dispute, the
parties shall for a period of not less than one (1) month discuss in good faith,
and attempt to agree upon a resolution of such dispute. In the event that the
parties are unable to agree, the issue may be submitted to arbitration of a
three (3) member panel as provided for herein. Either party may invoke the
arbitration procedure by serving on the other party written notice requesting
arbitration. The three (3) member arbitration panel shall be selected pursuant
to and the arbitration should be conducted in accordance with the Commercial
Arbitration Rules of the American Arbitration Association (AAA). The arbitration
shall be conducted before the selected panel according to the then current
Commercial Arbitration Rules established by the AAA. All costs for the
arbitration shall be shared equally between the parties. The decision of the
arbitrators will be final and binding on both parties. Venue of the arbitration
shall be in Akron, Ohio. Notwithstanding anything herein, all other disputes,
controversies or claims arising out of or in connection with this Agreement
shall be instituted and resolved in the federal or state court and pursuant to
the law described in Section 21.06 hereof.
ARTICLE XIV. INDEMNITY
SECTION 14.01 BUYER'S INDEMNITY. Buyer hereby agrees to indemnify and hold
Supplier, its officers, directors and shareholders harmless from and against any
and all damages, losses, liabilities, suits, actions, demands, proceedings
(whether legal or administrative), and expenses (including but not limited to
attorneys fees) arising, directly or indirectly, out of any action or failure to
act by Buyer, its employees or agents or any negligence, breach of this
Agreement, or misrepresentation, on the part of Buyer, its employees or agents.
Notwithstanding anything
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contained in this Agreement to the contrary, Supplier shalI only be entitled to
recover direct and incidental damages and not consequential damages.
SECTION 14.02 SUPPLIER'S INDEMNITY. Supplier hereby agrees to indemnify and
hold Buyer, its officers, directors and shareholders harmless from and against
any and all damages, losses, liabilities, suits, actions, demands, proceedings
(whether legal or administrative), and expenses (including but not limited to
attorneys fees) arising, directly or indirectly, out of any action or failure to
act by Supplier, its employees or agents or any negligence, breach of this
Agreement, or misrepresentation, on the part of Supplier, its employees or
agents. Notwithstanding anything contained this Agreement to the contrary, Buyer
shall only be entitled to recover direct and incidental damages and not
consequential damages.
ARTICLE XV.BUYER'S OPTION TO PARTICIPATE
SECTION 15.01 EXERCISE AND TERMS OF OPTION. Commencing after the completion
of the Second Contract Year and continuing during the Initial Term of this
Agreement and any extensions thereof, Buyer shall have the option to purchase an
interest in the Facility in accordance with Schedule 15.01 hereto. The parties
hereby agree to negotiate in good faith and use their best efforts to agree upon
the most advantageous form of legal entity to own and operate the Facility. Both
Buyer and Supplier hereby acknowledge their intent to be bound by the provisions
of this Section 15.01 and that Schedule 15.01 contains the essential terms upon
which the Entity (as defined in Schedule 15.01) will be formed, and that the
failure of the parties to agree as to any other aspect with respect to the
formation and/or operation of the Entity contemplated herein shall not relieve
the parties from their obligation to form and operate said
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Entity in the event that Buyer exercises its option as provided herein.
ARTICLE XVI. RIGHTS OF FIRST REFUSAL
SECTION 16.01 RIGHT OF FIRST REFUSAL RELATING TO FACILITY. Within ninety
(90) days of the execution of this Agreement, Buyer and Supplier shall execute
and deliver the Right of First Refusal (Facility) in the form attached hereto as
Exhibit "H" (the "Facility Right of First Refusal"), wherein Supplier shall
grant to Buyer a Right of First Refusal to purchase the Facility in the event a
third party makes an offer to purchase the Facility on terms that Supplier is
willing to accept (the "Facility Offer"), all as in accordance with the terms of
the Facility Right of First Refusal. Notwithstanding the Facility Right of First
Refusal, the Supplier shall be prohibited from selling, transferring or
otherwise disposing of the Facility prior to the completion of the Second
Contract Year except as permitted by Section 21.01. The Buyer's option to
purchase an interest in the Facility pursuant to Section 15.01 will not be
exercisable from the date notice of the Facility Offer has been made by Supplier
until the Facility is sold pursuant to the Facility Offer or while any purchase
agreement executed pursuant to the Facility Offer is pending, subject, however,
to Buyer's right to share in any Profit as defined herein which may result from
said sale. In the event of any sale of the Facility which occurs prior to Buyer
exercising its right to acquire an interest in the Facility as described in
Section 15.01, Supplier shall pay to Buyer a portion of any Profits resulting
from said sale based upon the formula set forth in Schedule 16.01 hereto.
SECTION 16.02 RIGHT OF FIRST REFUSAL RELATING TO ROCKPORT FACILITY. Upon
execution of this Agreement, Buyer and Supplier shall execute and deliver the
Right of First Refusal
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(Rockport) in the form attached hereto as Exhibit "I" (the "Rockport Right of
First Refusal"), wherein Buyer shall grant to Supplier Right of First Refusal
to purchase the Buyer's Facility and Rockport, Indiana (the "Rockport
Facility") in the event a third party makes an offer to purchase the Rockport
Facility on terms that Buyer is willing to accept (the "Rockport Offer"), all
as in accordance with the terms of the Rockport Right of First Refusal.
ARTICLE XVII. PURCHASE OF PERSONAL PROPERTY
SECTION 17.01 PURCHASE AND SALE. At the Closing, the Buyer agrees to sell
to the Supplier and the Supplier agrees to purchase from the Buyer the Personal
Property (as defined in Section 17.02(a) below) for the purchase price and upon
the terms and conditions set forth in this Article XVII.
SECTION 17.02 PERSONAL PROPERTY.
(a) The Supplier shall purchase from the Buyer such machinery,
equipment and other personal property scheduled on Exhibit "J" hereto (the
"Personal Property").
(b) At the Closing the Buyer shall furnish the Supplier with a limited
warranty xxxx of sale (the "Xxxx of Sale") to the Personal Property in the
form as Exhibit "K" hereto. At Supplier's discretion for a period of up to
one-hundred twenty (120) days following the transfer of title to said
Personal Property to the Supplier as provided for herein, the Supplier
shall grant to the Buyer a license to retain possession of and use the
Personal Property in Buyer's processing operations. During such possession
Buyer shall at its own cost and expense keep the Personal Property in good
repair, condition and working order, ordinary wear and tear excepted. Until
Supplier takes possession of the Personal Property, Buyer shall assume the
entire risk of loss and
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damage to the Personal Property and shall carry property damage insurance
covering the full replacement value thereof. Supplier shall be entitled to no
compensation from Buyer as a result of or related to Buyer's use of the
Personal Property as described herein. All costs relating to moving the
Personal Property to and/or installing it at the Supplier's Facility shall be
borne by the Supplier.
SECTION 17.03 PURCHASE PRICE. The purchase price of the Personal Property
shall be as set forth on Exhibit "J" hereto ("Purchase Price").
SECTION 17.04 CLOSING. The Closing (the "Closing") of the purchase and sale
of the Personal Property contemplated hereby shall occur within thirty (30) days
of the completion of the First Phase (the "Closing Date"), unless otherwise
mutually agreed in writing by the parties hereto or as otherwise extended under
the terms of this Agreement. Time is of the essence in this transaction.
SECTION 17.05 CONDITION OF THE PERSONAL PROPERTY. The Supplier agrees and
understands that the purchase of the Personal Property is "AS IS, WHERE IS,"
without any representation or warranty of any nature whatsoever, except (a) for
warranties of title, and (b) that the Personal Property has been kept and will,
until delivered to Supplier, be kept in good repair, condition and working
order, ordinary wear and tear excepted.
ARTICLE XVIII. CLOSING PROCEDURE
SECTION 18.01 CLOSING PROCEDURES. On the Closing Date Buyer shall deliver
to Supplier the Xxxx of Sale. Supplier shall deliver to Buyer a certified check
for the full amount of the purchase price of the Personal Property at Closing.
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ARTICLE XIX. TERMINATION
SECTION 19.01 TERMINATION,
(a) Either of the parties hereto may terminate this Agreement by notice
in writing to the other party in any of the following events:
(i) Any attempted assignment of this Agreement by the other
party except as provided in Article XXI of this Agreement;
(ii) Dissolution or liquidation of the other party;
(iii) Application for or appointment of a receiver by the
non-terminating party;
(iv) Assignment for the benefit of creditors by the
non-terminating party;
(v) Appointment of a committee of creditors or a liquidating
agent by the non-terminating party;
(vi) An offer of composition or extension to creditors
generally by the non-terminating party;
(vii) The adjudication of the non-terminating party as bankrupt
or insolvent;
(viii) The non-terminating party files a voluntary petition for
bankruptcy or admits in writing that it is unable to pay its debts as
they become due;
(ix) Either party fails to cure a default hereunder, other than
as a result of Buyer's failure to make payments when due hereunder or
Supplier's failure to deliver the Product when said delivery is required
hereunder, within sixty (60) days after receipt of written notice
thereof; or
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(x) Subject to Section 7.01, delivery or payments not made
when due after the expiration of a sixty (60) day grace period.
The grace periods provided for in Subparts (ix) and (x) shall be extended
during such period as the Parties are negotiating in good faith with regard to
a legitimate dispute with respect to the Parties' obligations hereunder.
(b) In the event that Supplier is unable, despite its reasonable best
efforts, to procure the air quality and construction permits required for the
construction of the Facility referred to Section 1.01 of this Agreement on or
before April 30, 1992, this Agreement shall automatically terminate and the
obligation of Buyer to make the scheduled payments set forth in Schedule
5.01(b) and 5.01(c) shall automatically be extinguished.
(c) In the event of a termination of this Agreement pursuant to the
provisions of this Article XIX, except under Section 19.01(a)(x), any orders
outstanding as of the effective date of termination shall be filled in
accordance with the terms of this Agreement.
(d) No termination of this Agreement shall in any way affect the
obligation of the other party with regard to the provisions of this Agreement
previously matured and/or in effect, including, but not limited to, the
obligations relating to confidentiality under Article VIII hereof, the right to
enforce any remedy for the breach of any terms of this Agreement or the
indemnity obligations under Article IX, and Section 4.01(b).
ARTICLE XX. REPRESENTATIONS
SECTION 20.01 REPRESENTATIONS OF BUYER.
(a) AUTHORIZATION AND VALIDITY OF AGREEMENT. The execution, delivery and
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performance by Buyer of this Agreement have been duly authorized by its Board
of Directors. No other corporate action on the part of Buyer is necessary for
the execution, delivery and performance by Buyer of this Agreement. This
Agreement has been duly executed and delivered by Buyer and is a legal, valid
and binding obligation of Buyer, enforceable against Buyer in accordance with
its terms, except to the extent that its enforceability may be limited by
applicable bankruptcy, insolvency, reorganization or other laws affecting the
enforcement of creditors' rights generally and except that the availability of
equitable remedies, including specific performance, is subject to the
discretion of the court before which any proceedings therefor may be brought.
(b) NO CONFLICT. Neither the execution and delivery of this Agreement,
nor any other agreement or instrument executed and delivered by Buyer under
this Agreement does (i) conflict with, violate or result in a breach of the
terms, conditions or provisions of, or constitute a default under, or
accelerate or permit the acceleration of the performance under, the Certificate
or Articles of Incorporation or Bylaws, as amended, of Buyer, or any contract,
judgment, order, award or decree to which Buyer is a party or is subject to by
which it is bound or to which any of its assets is subject; (ii) require the
approval, consent, authorization or other order or action of any court,
governmental authority or regulatory body or filing or registration therewith
or notice thereto; (iii) result in the violation by Buyer of any law, rule,
regulation or order of any jurisdiction; or (iv) require the consent, approval
or authorization of any other person.
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SECTION 20.02 REPRESENTATIONS OF SUPPLIER.
(a) AUTHORIZATION AND VALIDITY OF AGREEMENT. The execution, delivery and
performance by Supplier of this Agreement have been duly authorized by its
Board of Directors. No other corporate action on the part of Supplier is
necessary for the execution, delivery and performance by Supplier of this
Agreement. This Agreement has been duly executed and delivered by Supplier and
is a legal, valid and binding obligation of Supplier, enforceable against
Supplier in accordance with its terms, except to the extent that its
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization or other laws affecting the enforcement of creditors' rights
generally and except that the availability of equitable remedies, including
specific performance, is subject to the discretion of the court before which
any proceedings therefor may be brought.
(b) NO CONFLICT. Neither the execution and delivery of this Agreement,
nor any other agreement or instrument executed and delivered by Supplier under
this Agreement does (i) conflict with, violate or result in a breach of the
terms, conditions or provisions of, or constitute a default under, or
accelerate or permit the acceleration of the performance under, the Certificate
of Incorporation or Bylaws, as amended, of Supplier, or any contract, judgment,
order, award or decree to which Supplier is a party or is subject or by which
it is bound or to which any of its assets is subject; (ii) require the
approval, consent, authorization or other order or action of any court,
governmental authority or regulatory body or filing or registration therewith
or notice thereto; (iii) result in the violation by Supplier of any law, rule,
regulation or order of any jurisdiction; or (iv) require the consent, approval
or authorization of any other person.
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ARTICLE XXI. MISCELLANEOUS
SECTION 21.01 BENEFIT. Subject to the restrictions contained in this
Agreement prohibiting the assignment of this Agreement, this Agreement shall
inure to the benefit of, and be binding upon, the respective successors and
assigns of the parties hereto. Except as set forth in Section 16.01 and
Schedule 15.01, this Agreement shall not be assigned by either party without
the express written consent of the other which consent shall not be
unreasonably withheld or delayed. If Buyer or Supplier proposes to assign this
Agreement in accordance with terms of this Section 21.01 then Buyer or
Supplier, as the case may be, agrees to cause the person or entity to whom this
Agreement will be assigned or transferred to assume in writing Buyer's or
Supplier's, as the case may be, obligations under this Agreement.
Notwithstanding anything contained herein to the contrary, either party shall
have the right to assign this Agreement to its direct or indirect wholly owned
subsidiary. In addition, notwithstanding any provision herein to the contrary,
no provision in this Agreement shall affect in any way the right or power of
either Buyer or Supplier, or their respective shareholders, to make or
authorize any or all adjustments, recapitalizations, reorganizations or other
changes in their respective capital structure or business, or any merger or
consolidation of either of them, or any other corporate act or proceeding
respecting them, whether of a similar character or otherwise. Notwithstanding
anything in this Agreement to the contrary, the assignment of this Agreement by
either party to a direct or indirect wholly owned subsidiary or any adjustment,
recapitalization, reorganization, or other change or merger or consolidation
described above shall in no way release said assignor of its obligations and
duties under this Agreement.
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SECTION 21.02 NON-WAIVER. The failure of either party at any time to
enforce any provision of this Agreement shall not be construed to be a waiver
of such provision of the right of the respective party hereunder to enforce any
such provision.
SECTION 21.03 SEVERABILITY. If any provision of this Agreement or the
application thereof to any party or circumstance shall for any reason and to
any extent be deemed invalid or unenforceable, the remainder of this Agreement
and application of such provision to the other parties and other circumstances
shall not be affected thereby, but rather the invalid or unenforceable
provisions as applied to the particular party or circumstance shall be modified
to the extent necessary so as to render said provision valid and enforceable
while to the greatest extent possible accomplishing the intended purpose of
said provision.
SECTION 21.04 ENTIRE AGREEMENT. This writing constitutes the entire
Agreement between the parties relating to the sale of the Products described
herein during the specific term, and any extensions thereof, and supersedes all
previous contracts, including but not limited to, the Confidentiality Agreement
entered into between the parties hereto on October 17, 1991. Neither party to
this Agreement makes any representation to the other party except as expressly
set forth in this Agreement. No modification or waiver of any of the terms of
this Agreement shall bind either party unless in writing signed by duly
authorized representatives of both Buyer and Supplier.
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SECTION 21.05 CAPTIONS. Captions of the sections of this Agreement are
for convenience and reference only and the words contained therein shall in no
way be held to explain, modify, amplify, or aid in the interpretation,
construction, or meaning of the provisions of this Agreement.
SECTION 21.06 GOVERNING LAW. This Agreement shall be construed under and
enforced according to the laws of the State of Ohio, including without
limitation the Ohio Sales Act contained in Ohio Revised Code Section 1302, and
any action arising out of or related to this Agreement shall be venued in a
federal or state court of appropriate jurisdiction in the State of Ohio. The
parties hereby consent to the jurisdiction of the said courts.
SECTION 21.07 FURTHER ASSURANCES. Subject to the terms and conditions
herein provided, Buyer and Supplier shall use their reasonable best efforts to
take, or cause to be taken, all actions and to do, or cause to be done, all
things reasonably necessary, proper or advisable to make effective as promptly
and practicable the transactions contemplated by this Agreement and to
cooperate with each other in connection with the foregoing.
SECTION 21.08 FINDER'S AND BROKER'S FEES. Buyer and Supplier each
represent and warrant to the other that there are no claims (or any basis for
any claims) for brokerage commissions, finder's fees or like payments in
connection with this Agreement or the transactions contemplated hereby
resulting from any action taken by either of them or on either of their behalf.
SECTION 21.09 COUNTERPARTS. This Agreement may be executed in several
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the
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same instrument.
SECTION 21.10 SUBSTANTIATION. For purposes of substantiating Supplier's
operating costs and capital expenditures, as well as any other financial
information or data of Supplier which relates to this Agreement and exhibits,
including but not limited to the calculation of sustaining capital expenditures
under Schedule 5.01(b), increases in certain operating costs and capital
expenditures described in Schedule 5.01(d) and certain costs and expenditures
described in Exhibit "D", the Supplier shall record and account for such items
in a manner which is consistent with its historical practice applied in a
consistent manner or if it is determined by Supplier's independent Certified
Public Accountants that it is appropriate to change said historical practice,
then in a manner in conformity with generally accepted accounting principles
with all said changes being fully disclosed to Buyer.
SECTION 21.11 REFERENCES. When references appear in this Agreement to a
Section, such reference where applicable, should be deemed to refer to the
appropriate Schedule to this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed the date first written above by their duly authorized representatives.
BARMET ALUMINUM CORPORATION
By /s/ XXXXX X. XXXXX By /s/ XXXXXX X. XXXXX, XX.
------------------------------ ------------------------------
Title Vice-Pres. & C.F.O. Title C.E.O
--------------------------- ---------------------------
Date 3-2-92 Date March 2, 1992
---------------------------- ----------------------------
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IMCO RECYCLING INC.
By /s/ XXXX X. XXXXXX By /s/ XXXXX X. XXXXX
------------------------------ ------------------------------
Title Sr. Vice Pres. Title President
--------------------------- ---------------------------
Date March 2, 1992 Date March 2, 1992
---------------------------- ----------------------------
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EXHIBIT "A"
QUANTITY AND QUALITY OF PRODUCT DELIVERED
I. Quantity of Product Delivered
A. Provided that the necessary construction permits have been received
by Xxxxx 0, 0000, XXXX will have installed capability to process the
following annual volumes by April 1, 1993:
Scrap 210MM lbs.
Dross 12MM lbs.
Concentrates 30MM lbs.
-----------
252MM lbs.
If the construction permits have not been obtained by March 1, 1992,
the processing capabilities described above will be made available
within 10 months of the receipt of permits to install or April 1,
1993, whichever is later.
B. Due to seasonal fluctuations, Barmet may request up to 10% of this
volume to be processed in any one month except February, and may
request up to 8% of this volume during any February.
C. IMCO will be responsible for supplying and maintaining all crucible
and sow molds.
D. IMCO will be responsible for delivering hot metal or sows to the
rolling mill.
II. Quality of Product Delivered
A. IMCO will cooperate with Barmet to establish metal cleanliness
practices in the total combined IMCO/Barmet cycle. Any holding
furnace, filtration unit or other new requirement not practiced by
IMCO at present will be jointly considered by both parties to find
the lowest cost answer. Any additional operating and/or capital
costs incurred by IMCO will be reflected in the price charged to
Barmet as mutually agreed.
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B. Contaminants listed below will not exceed the levels specified:
Sodium - .0075%
Potassium - .0025%
Calcium - .0075%
Lithium - .0010%
C. Chemistry of Metal Supplied:
1. The average monthly level of magnesium in UBC's will be
greater than 0.70% unless otherwise agreed by Barmet.
2. If scrap materials are available, IMCO will blend where
required to meet alloy chemistries required by Barmet.
D. Quality Requirements of Molten Metal
1. Crucibles must be kept clean and free of contaminants.
2. The metal must not have excessive skim or salts floating
on the top.
3. Each crucible must be accompanied by weight and
composition information.
4. Crucibles must be at a suitable temperature for pouring
when delivered to the rolling mill's molten metal handling
system.
E. Quality Requirements of Sows
1. The ingot should be skimmed and poured so that the surface
is free of surface and/or entrained salts, excessive skim,
surface contamination, corrosion, or seams and folds
caused by multiple pours.
2. Ingots shall have minimum shrinkage cavities and/or
internal voids.
3. Each ingot must clearly display the heat number and alloy
on the side of the ingot. Ingots which are out of
specification with respect to the stated alloy will be so
marked with respect to such elements.
4. Every shipment is to be accompanied by chemical analysis
for each heat. Every shipment is to be accompanied with a
sample button for each heat.
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5. Each ingot must be poured level so they can be stacked
properly.
6. There will be no excessive splashing on sides of ingots.
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EXHIBIT "B"
SCRAP RECEIVING PROCEDURES
I. Scope:
Scrap Receiving Procedures are to be implemented and maintained as agreed
to by IMCO and Barmet. Proposed changes will be submitted by IMCO to the Barmet
Corporate Materials Management Group for review prior to enactment.
H. Purpose:
The receipt, acceptance, and data entry of aluminum scrap must be
consistent with Barmet's system to assure:
- Timely delivery, scrap mix and control of raw material inventory
through delivery appointment scheduling.
- Quality of scrap conforms to published specifications and yields
expected recoveries and chemistries.
- Open purchase order balances are managed at current status.
- Suppliers are promptly advised of weight differences, rejections
and/or proposed downgrades.
- Detailed record of delivery performance, quality, and traceability
by supplier is readily accessible.
- Timely and accurate issuance of scrap payments.
- Assessment of current raw material inventories by type and
forecasting of future requirements.
III. Delivery Appointment Scheduling
A. All deliveries of raw materials must be assigned an appointment
number for a specific date and time. Appointment numbers should be
sequential (nonrepeating) and indicate the calendar month.
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1. A designated employee from IMCO should issue delivery
appointments to vendors.
2. All appointments must be entered into the Barmet mainframe
computer at the time of issuance.
a. Vendor requesting an appointment must indicate
Barmet's P.O. number and applicable scrap type. No
appointment will be given without this information.
B. The delivery appointment schedule is to be printed daily.
Appointments may be made as far in advance as practical according to
scrap mix requirements, inventory control, and toll customer
priority. Delivery appointment schedule will include the following:
- Vendor (P.O. issued to)
- P.O. Number
- Appointment (Release) No.
- Type of Material
- Delivery Date and Time
IV. Delivery Documentation
A. A complete manifest or packing list indicating the applicable Barmet
purchase order and a xxxx of lading must accompany each load.
B. If load documents presented are incomplete or do not correspond to
delivery appointment information, the load is to be held. IMCO is to
notify Raw Material Buyers in Akron of any discrepancies. The Buyer
will contact the vendor for resolution.
C. Once all delivery documentation is in order, the IMCO operator gross
weighs the vehicle and initiates internal receiving documents (scrap
report sheet and/or weight certificate).
V. Unloading
A. IMCO's receiving inspector should compare the physical seal numbers
to those indicated on delivery documents for agreement and that the
seal is intact. If the numbers do not agree or the seal is broken or
missing, proper notation must be made on the Xxxx of Lading and the
internal receiving report.
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B. IMCO's receiving inspector should compare actual package type and
item count to the supplier's packing list. If a packing list is
missing or a discrepancy exists in material type and/or count,
notations are to be made on the Xxxx of Lading and the internal
receiving report.
C. Each delivery lot must be identified by a tag or paint with the
corresponding scrap receiving report or weight ticket number. The
method of marking must be sufficient to identify the load at a
future date.
D. Separate scale weights must be obtained for each scrap type unloaded
from mixed loads. Care should be taken to record the correct
purchase order for each scrap type. No more than two (2) scrap types
will be allowed per load.
VI. Inspection
A. IMCO's receiving inspector must ensure that the physical scrap (type
and package) agrees with the purchase order description.
B. Loose material packed in boxes should be dumped into storage bins or
bunkers for thorough inspection, whenever possible.
C. A hand-held magnet should be passed over as much material as
possible to detect the presence of iron or steel.
D. Each package must be manually inspected for contamination, (i.e.,
chrome, plastic, dirt, rubber, radiators, wire, etc.). Maximum
allowable grease and/or oil is 1% by weight. If present, a sample
should be taken and measured by the Supplier.
If sufficient contamination is evident to cause the entire lot or load to
be rejected, unloading should cease and Barmet's Raw Material Buyer notified
immediately. The Scrap Rejection form should be completed and faxed to Barmet's
Raw Material Buyer. All packages should be put back on the delivery vehicle.
If contamination is present, but in the opinion of IMCO's inspector, it
is not sufficient to warrant outright rejection, the Request for Downgrade form
should be prepared and faxed to the Buyer. An estimate of the expected actual
recovery, compared to the standard recovery, must be included. The Buyer will
discuss with the vendor and notify IMCO of the determination. The load is to be
held until final resolution.
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All scrap loads that are downgraded will be identified for separate
processing to the extent that downgrading resulted from excessive dirt, oil or
other unmeasurable contaminants. Such scrap will be processed on a "best
efforts" basis. Where excessive contaminants are measurable, such excessive
contamination amounts will be credited to IMCO for recovery calculation
purposes.
VII. Moisture Testing (UBC's)
A. Moisture testing procedures must be approved by Barmet in
advance. Our procedure is based upon the test developed by
Alcoa and used in the industry.
B. Visually inspect and verify the scrap as specified in
Section VI (Inspection).
C. All lots or loads of UBC, tagged or marked with ID number
(see V C), must be held, intact, until the moisture test
results are known.
D. Moisture tests must be completed within twenty-four (24)
hours of load delivery.
E. Moisture test results and overall average are to be
recorded on the Moisture Test form.
1. In the event the average moisture content exceeds
the allowable limit (4%), Barmet's Raw Material
Buyer is to be notified. The Buyer win advise IMCO
of the vendor's decision.
2. Accepted moisture deductions are to be clearly
noted on the test result form and attached to all
other internal receiving documents.
(Note: Excessive moisture, in the opinion of the
receiving inspector, that may cause a safety
hazard, is cause for rejection without testing).
VIII. Received Weights and Data Entry
A. Information on received material will be supplied by IMCO
to Barmet within 24 hours of delivery.
B. Barmet's net received weight will be the governing payable
weight.
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1. If the net received weight is less than the shipping claimed weight,
for any item or lot, by one-half of one (0.5) percent or more, the
load and delivery vehicle are to be held and Barmet's Raw Material
Buyer notified immediately.
Barmet's Buyer will notify the vendor of the weight discrepancy. The
Buyer will advise the IMCO plant of disposition.
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EXHIBIT "F"
DATE: 02/27/92 TIME: 11:23 MORGANTOWN, KENTUCKY PAGE 1
IMCO RECYCLING INC.
********** MONTH END INVENTORY ACTIVITY REPORT **********
AS OF 11/30/91
CONVERSION COST/LB:
COMPANY BARMET RPT
------------------------- RAW MATERIALS ----------------------------
11/01/91 11/30/91
MATERIAL ON NON EOL ON RAW MATERIAL
DESIG HAND RECEIVED PROCESSED SHIPPED HAND COST
-------- -------- -------- --------- ------- -------- ------------
BAS 160,660 160,660
***** COMPANY 160,660 160,660
------------------------ FINISHED GOODS -------------------------
11/01/91 11/30/91
MATERIAL ON ON COST FIN GOODS
DESIG HAND PRODUCED SHIPPED HAND / LB COST
-------- -------- -------- --------- -------- ------- ---------
BAS 148,780 148,780
***** COMPANY 148,780 148,780
54
45
DATE: 02/27/92 TIME: 11:29 MORGANTOWN, KENTUCKY PAGE 1
IMCO RECYCLING INC.
********** MONTH END RECEIVING STATUS REPORT **********
FROM 11/01/91 TO 11/30/91
FOR BARMET RPT
DATE LOAD CUSTOMER MATERIAL IMCO BILLING CONTRACT FREIGHT MATERIAL FREIGHT TOTAL
CUSTOMER ON SPOT NUMBER REF. # DESIG WEIGHT WEIGHT RATE RATE COST COST COST
-------- ------- ------ -------- -------- ------ ------- -------- ------- -------- ------- --------
BARMET RPT 11/19/91 BAS-1 0001 BAS 26,280 26,280 .0700 1,839.60 .00 1,839.60
11/19/91 BAS-2 0002 BAS 46,460 46,460 .0700 3,252.20 .00 3,252.20
11/20/91 BAS-3 0003 BAS 44,960 44,960 .0700 3,147.20 .00 3,147.20
11/20/91 BAS-4 0004 BAS 42,960 42,960 .0700 3,007.20 .00 3,007.20
*---- REF ----* RAW FINISHED
CUSTOMER INV. # DATE MATERIAL GOODS SHIPPED
-------- ------ ----- -------- -------- -------
BARMET RPT 25,312
42,454
40,274
40,740
55
46
DATE: 02/27/92 TIME: 11:19 MORGANTOWN, KENTUCKY PAGE 1
IMCO RECYCLING INC.
********** CONTRACT PERFORMANCE REPORT **********
FROM 11/01/91 THRU 11/30/91
CONTRACT CONTRACT CONTRACT CONTRACT MATERIAL MATERIAL CONT CONTRACT CONTRACT CONTRACT
CUSTOMER NUMBER BEG DATE END DATE CLASS DESIG TYPE WEIGHT RECEIVED EOL IN
-------- -------- -------- -------- -------- -------- ---- -------- -------- --------
BARMET RPT PO#105990 11/01/91 11/30/91 OTHSCRAP BAS T 180,000 160,660 160,660
CONTRACT CONTRACT CONTRACT CONTRACT CONTRACT CONTRACT
CUSTOMER EOL OUT RECOVERY PRICE FREIGHT COMMENTS
-------- -------- -------- -------- -------- --------
BARMET RPT 148,780 92.60 .0700 PTD SIDING & MLC
CUSTOMER LOAD DATE NON EOL EOL IN EOL OUT LOAD EOL
REF NUMBER NUMBER RECEIVED WEIGHT WEIGHT WEIGHT RECOV DATE
---------- ------ -------- ------- ------- ------- ----- --------
0000 XXX-0 11/19/91 26,280 25,312 96.31 11/19/91
0000 XXX-0 11/19/91 46,460 42,454 91.37 11/19/91
0000 XXX-0 11/20/91 44,960 40,274 89.57 11/21/91
0000 XXX-0 11/20/91 42,960 40,740 94.83 11/22/91
160,660 148,780 92.60
56
47
DATE: 02/27/92 TIME: 11:33 MORGANTOWN, KENTUCKY PAGE 1
IMCO RECYCLING INC.
********** MTD/YTD FINISHED GOODS ANALYSIS REPORT **********
FOR BARMET RPT
FROM 11/01/91 THRU 11/30/91
LOAD HEAT UNITS/ WEIGHT ALLOY PROD PROD PROD
NUMBER NUMBER XXXXX OUT CODE FURN SHFT DATE
--------- -------- ------- -------- ------ ------ ------ ------
* BAS-1 BAS 813 4 5,558 AL 6 4 11/19/91
* BAS-2 BAS 816 5 6,450 AL 6 5 11/19/91
* BAS-2 BAS 817 4 5,148 AL 6 5 11/19/91
* BAS-2 BAS 818 5 6,320 AL 6 5 11/19/91
* BAS-2 BAS 820 6 8,308 AL 6 5 11/19/91
* BAS-3 BAS 836 4 5,546 AL 6 4 11/21/91
* BAS-4 BAS 842 5 5,990 AL 6 5 11/21/91
* BAS-4 BAS 844 4 5,342 AL 6 5 11/21/91
* BAS-2 BAS 815 4 5,474 CF W/FE 6 5 11/19/91
* BAS-3 BAS 839 8 10,230 CF W/FE 6 5 11/21/91
* BAS-2 BAS 814 4 5,478 CF 111 6 5 11/19/91
* BAS-2 BAS 819 4 5,276 CF 111 6 5 11/19/91
* BAS-3 BAS 838 5 6,834 CF 111 6 4 11/21/91
* BAS-3 BAS 837 4 5,706 0000000 6 4 11/21/91
* BAS-1 BAS 811 5 7,154 3004 6 4 11/19/91
* BAS-3 BAS 834 5 6,550 3004 6 4 11/21/91
* BAS-3 BAS 835 4 5,408 3004 6 4 11/21/91
* BAS-4 BAS 841 5 6,428 3004 6 5 11/21/91
* BAS-4 BAS 845 5 6,200 3004 6 5 11/21/91
* BAS-4 BAS 846 4 4,972 3004 6 4 11/22/91
* BAS-1 BAS 810 5 6,686 3105 6 4 11/19/91
* BAS-1 BAS 812 4 5,914 3105 6 4 11/19/91
* BAS-4 BAS 840 5 6,586 3105 6 5 11/21/91
* BAS-4 BAS 843 4 5,222 3105 6 5 11/21/91
---- --------
112 148,780
***** BAS AL 37 48,662 32.71%
CF W/FE 12 15,704 10.56%
CF 111 13 17,588 11.82%
0000000 4 5,706 3.84%
3004 28 36,712 24.68%
3105 18 24,408 16.41%
------- --------
112 148,780
LOAD
NUMBER -SI- -FE- -CU- -MN- -MG- -CR- -NI- -ZN- -TI- -PB- -BI- -BE- -AL-
--------- ------ ------ ------ ------ ------ ------ ------ ------ ------ ------ ------ ------ -------
* BAS-1 .312 .559 .310 .366 .323 .117 .008 .140 .015 .048 .000 .000 97.802
* BAS-2 .270 .766 .140 .676 .028 .032 .009 .106 .019 .010 .000 .000 97.944
* BAS-2 .264 .786 .134 .620 .018 .031 .008 .099 .022 .008 .000 .000 98.010
* BAS-2 .267 .756 .136 .656 .028 .027 .008 .102 .017 .011 .000 .000 97.992
* BAS-2 .253 .809 .130 .583 .048 .027 .008 .103 .018 .009 .000 .000 98.012
* BAS-3 .245 .778 .142 .643 .020 .020 .006 .149 .019 .128 .000 .000 97.850
* BAS-4 .284 .715 .216 .803 .106 .048 .010 .175 .012 .008 .000 .000 97.623
* BAS-4 .309 .545 .202 .849 .028 .023 .006 .197 .010 .019 .000 .000 97.812
* BAS-2 .252 1.030 .144 .639 .020 .042 .010 .104 .019 .008 .000 .000 97.732
* BAS-3 .263 1.237 .135 .620 .008 .021 .006 .190 .015 .022 .000 .000 97.483
* BAS-2 .248 .877 .174 .620 .023 .041 .009 .103 .019 .010 .000 .000 97.876
* BAS-2 .271 .947 .128 .611 .035 .023 .008 .095 .015 .009 .000 .000 97.858
* BAS-3 .287 .896 .168 .723 .062 .021 .008 .156 .010 .035 .000 .000 97.634
* BAS-3 .239 4.071 .130 .658 .021 .030 .007 1.510 .023 .016 .000 .000 93.295
* BAS-1 .259 .584 .212 .635 .031 .024 .006 .109 .009 .006 .000 .000 98.125
* BAS-3 .300 .656 .199 .642 .016 .029 .009 .126 .017 .014 .000 .000 97.992
* BAS-3 .261 .700 .150 .632 .009 .024 .006 .146 .016 .010 .000 .000 98.046
* BAS-4 .282 .585 .207 .709 .010 .035 .007 .155 .012 .008 .000 .000 97.990
* BAS-4 .250 .544 .208 .785 .018 .033 .006 .149 .013 .009 .000 .000 97.985
* BAS-4 .248 .649 .221 .575 .026 .037 .008 .121 .012 .007 .000 .000 98.096
* BAS-1 .252 .505 .166 .527 .066 .064 .005 .083 .010 .005 .000 .000 98.317
* BAS-1 .259 .549 .208 .695 .257 .072 .007 .153 .013 .006 .000 .000 97.781
* BAS-4 .341 .548 .251 .668 .023 .044 .010 .186 .008 .014 .000 .000 97.907
* BAS-4 .323 .682 .229 .740 .023 .036 .010 .203 .010 .013 .000 .000 97.731
------ ------ ------ ------ ------ ------ ------ ------ ------ ------ ------ ------ -------
AVE .272 .866 .179 .651 .050 .036 .007 .190 .014 .017 .000 .000 97.718
HIGH .341 4.071 .310 .849 .323 .117 .010 1.510 .023 .128 .000 .000 98.317
LOW .239 .505 .128 .366 .008 .020 .005 .083 .008 .005 .000 .000 93.295
ALLOY CODE
AL .274 .721 .172 .647 .072 .039 .007 .131 .016 .028 .000 .000 97.893
CF W/FE .259 1.164 .138 .626 .012 .028 .007 .160 .016 .017 .000 .000 97.573
CF 111 .270 .905 .157 .657 .041 .027 .008 .121 .014 .019 .000 .000 97.781
0000000 .239 4.071 .130 .658 .021 .030 .007 1.510 .023 .016 .000 .000 93.295
3004 .267 .616 .200 .665 .018 .030 .006 .133 .013 .009 .000 .000 98.043
3105 .292 .565 .212 .651 .091 .054 .007 .153 .010 .009 .000 .000 97.956
------ ------ ------ ------ ------ ------ ------ ------ ------ ------ ------ ------ -------
.272 .866 .179 .651 .050 .036 .007 .190 .014 .017 .000 .000 97.718
48
DATE: 02/27/92 TIME: 11:42 MORGANTOWN, KENTUCKY PAGE 1
IMCO RECYCLING INC.
********** MATERIAL SHIPMENTS REPORT BY XXXX OF LADING **********
FOR 12/01/91 THRU 12/31/91
SHIPPED BY BARMET RPT
XXXX XXXX SHIPPING PRODUCTION MATERIAL MATERIAL SHIPPED LOAD HEAT SHIPPED SHIPPED IMCO
NUMBER DATE CONTRACT CONTRACT CLASS DESIG TO NUMBER NUMBER INGOTS WEIGHT SALE
------ -------- -------- ---------- -------- -------- ------- ------ --------- -------- ------- ----
3679 12/17/91 PO#106065 PO#105990 OTHSCRAP BAS BARMET BAS-1 BAS 810 5 6,686 N
BAS 811 5 7,154
BAS 812 4 5,914
BAS 813 4 5,558
BAS-2 BAS 814 4 5,478
BAS 815 4 5,474
*****TOTAL 3679 TOLL 36,264 26 36,264
3680 12/17/91 PO#106065 PO#105990 OTHSCRAP BAS BARMET BAS-2 BAS 816 5 6,450 N
BAS 817 4 5,148
BAS 818 5 6,320
BAS 819 4 5,276
BAS 820 6 8,308
BAS-3 BAS 834 5 6,550
*****TOTAL 3680 TOLL 38,052 29 38,052
3681 12/18/91 PO#106065 PO#105990 OTHSCRAP BAS BARMET BAS-3 BAS 835 4 5,408 N
BAS 836 4 5,546
BAS 837 4 5,706
BAS 838 5 6,834
BAS-4 BAS 840 5 6,586
BAS 841 5 6,428
*****TOTAL 3681 TOLL 36,508 27 36,508
3682 12/18/91 PO#106065 PO#105990 OTHSCRAP BAS BARMET BAS-3 BAS 839 8 10,230 N
BAS-4 BAS 842 5 5,590
BAS 843 4 5,222
BAS 844 4 5,342
BAS 845 5 6,200
BAS 846 4 4,972
*****TOTAL 3682 TOLL 37,956 30 37,956
49
DATE: 02/27/92 TIME: 11:42 MORGANTOWN, KENTUCKY PAGE 2
IMCO RECYCLING INC.
********** MATERIAL SHIPMENTS REPORT BY XXXX OF LADING **********
FOR 12/01/91 THRU 12/31/91
SHIPPED BY BARMET RPT
XXXX XXXX SHIPPED SHIPPED SHIPPING TOLL SALES SHIPPED SHIPPED
NUMBER DATE BY TO CONTRACT IGNOTS WEIGHT
--------- ------ --------- ---------- -------- ------- -------- --------- ---------
3679 12/17/91 BARMET RPT BARMET PO#106065 36,264 26 36,264
3680 12/17/91 BARMET RPT BARMET PO#106065 38,052 29 38,052
3681 12/18/91 BARMET RPT BARMET PO#106065 36,508 27 36,508
3682 12/18/91 BARMET RPT BARMET PO#106065 37,956 30 37,956
------- -------- --------- ---------
148,780 112 148,780
*****MONTH TOTALS
50
DATE: 02/27/92 TIME: 11:34 PAGE 1
IMCO RECYCLING INC.
MORGANTOWN, KENTUCKY
********** END-OF-LOAD REPORT **********
EOL DATE: 11/19/91
LOAD CUST REF SOURCE CONTRACT TYPE MATERIAL DATE CAR/TRUCK
NUMBER NUMBER CUSTOMER CUSTOMER NUMBER P/T CLASS RECEIVED CARRIER NUMBER
------ -------- -------- -------- -------- ---- -------- -------- ------- ---------
BAS-1 0000 XXXXXX XXX XXXXXX XXX X0#000000 T OTHSCRAP 11/19/91 PTS 678
WEIGHT WEIGHT RECOV
IN OUT PCT
------ ------ -----
26,280 25,312 96.31
HEAT UNITS/
NUMBER XXXXX WEIGHT -SI- -FE- -CU- -MN- -MG- -CR-
-------- ----- ------- ---- ---- ---- ---- ---- ----
*BAS 810 5 6,686 .252 .505 .166 .527 .066 .064
*BAS 811 5 7,154 .259 .584 .212 .635 .031 .024
*BAS 812 4 5,914 .259 .549 .208 .695 .257 .072
*BAS 813 4 5,558 .312 .559 .310 .366 .323 .117
----- -------
18 25,312
AVERAGE ANALYSIS - .269 .549 .220 .561 .157 .066
-NI- -ZN- -TI- -PB- -BI- -BE- -AL-
---- ---- ---- ---- ---- ---- ----
*BAS 810 .005 .083 .010 .005 .000 .000 98.31
*BAS 811 .006 .109 .009 .006 .000 .000 98.12
*BAS 812 .007 .153 .013 .006 .000 .000 97.78
*BAS 813 .008 .140 .015 .048 .000 .000 97.80
AVERAGE ANALYSIS - .006 .119 .012 .015 .000 .000 98.0
* - THIS HEAT HAS BEEN SHIPPED.
60
51
DATE: 02/27/92 TIME: 11:34 PAGE 1
IMCO RECYCLING INC.
MORGANTOWN, KENTUCKY
********** END-OF-LOAD REPORT **********
EOL DATE: 11/19/91
LOAD CUST REF SOURCE CONTRACT TYPE MATERIAL DATE CAR/TRUCK
NUMBER NUMBER CUSTOMER CUSTOMER NUMBER P/T CLASS RECEIVED CARRIER NUMBER
------ -------- -------- -------- -------- ---- -------- -------- ------- ---------
BAS-2 0000 XXXXXX XXX XXXXXX XXX X0#000000 T OTHSCRAP 11/19/91 AMERISTAR 025021
WEIGHT WEIGHT RECOV
IN OUT PCT
------ ------ -----
46,460 42,454 91.37
HEAT UNITS/
NUMBER XXXXX WEIGHT -SI- -FE- -CU- -MN- -MG- -CR-
-------- ----- ------- ---- ---- ---- ---- ---- ----
*BAS 814 4 5,478 .248 .877 .174 .620 .023 .041
*BAS 815 4 5,474 .252 1.030 .144 .639 .020 .042
*BAS 816 5 6,450 .270 .766 .140 .676 .028 .032
*BAS 817 4 5,148 .264 .786 .134 .620 .018 .031
*BAS 818 5 6,320 .267 .756 .136 .656 .028 .027
*BAS 819 4 5,276 .271 .947 .128 .611 .035 .023
*BAS 820 6 8,308 .253 .809 .130 .583 .048 .027
----- -------
32 42,454
AVERAGE ANALYSIS - .260 .846 .140 .628 .030 .031
-NI- -ZN- -TI- -PB- -BI- -BE- -AL-
---- ---- ---- ---- ---- ---- ----
*BAS 814 .009 .103 .019 .010 .000 .000 97.8
*BAS 815 .010 .104 .019 .008 .000 .000 97.7
*BAS 816 .009 .106 .019 .010 .000 .000 97.9
*BAS 817 .008 .099 .022 .008 .000 .000 98.0
*BAS 818 .008 .102 .017 .011 .000 .000 97.9
*BAS 819 .008 .095 .015 .009 .000 .000 97.8
*BAS 820 .008 .103 .018 .009 .000 .000 98.0
AVERAGE ANALYSIS - .009 .102 .018 .009 .000 .000 97.9
* - THIS HEAT HAS BEEN SHIPPED.
61
52
DATE: 02/27/92 TIME: 11:34 PAGE
IMCO RECYCLING INC.
MORGANTOWN, KENTUCKY
********** END-OF-LOAD REPORT **********
EOL DATE: 11/21/91
LOAD CUST REF SOURCE CONTRACT TYPE MATERIAL DATE CAR/TRUCK
NUMBER NUMBER CUSTOMER CUSTOMER NUMBER P/T CLASS RECEIVED CARRIER NUMBER
------ -------- -------- -------- -------- ---- -------- -------- ------- ---------
BAS-3 0000 XXXXXX XXX XXXXXX XXX X0#000000 T OTHSCRAP 11/20/91 AMERISTAR 025021
WEIGHT WEIGHT RECOV
IN OUT PCT
------ ------ -----
44,960 40,274 89.57
HEAT UNITS/
NUMBER XXXXX WEIGHT -SI- -FE- -CU- -MN- -MG- -CR-
-------- ----- ------- ---- ---- ---- ---- ---- ----
*BAS 834 5 6,550 .300 .656 .199 .642 .016 .029
*BAS 835 4 5,408 .261 .700 .150 .632 .009 .024
*BAS 836 4 5,546 .245 .778 .142 .643 .020 .020
*BAS 837 4 5,706 .239 4.071 .130 .658 .021 .030
*BAS 838 5 6,834 .287 .896 .168 .723 .062 .021
*BAS 839 8 10,230 .263 1.237 .135 .620 .008 .021
----- -------
30 40,274
AVERAGE ANALYSIS - .267 1.351 .153 .651 .022 .024
-NI- -ZN- -TI- -PB- -BI- -BE- -AL-
---- ---- ---- ---- ---- ---- ----
*BAS 834 .009 .126 .017 .014 .000 .000 97.
*BAS 835 .006 .146 .016 .010 .000 .000 98.
*BAS 836 .006 .149 .019 .128 .000 .000 97.
*BAS 837 .007 1.510 .023 .016 .000 .000 93.
*BAS 838 .008 .156 .010 .035 .000 .000 97.
*BAS 839 .006 .190 .015 .022 .000 .000 97.
AVERAGE ANALYSIS - .007 .349 .016 .035 .000 .000 97.
* - THIS HEAT HAS BEEN SHIPPED.
62
53
DATE: 02/27/92 TIME: 11:34 PAGE 1
IMCO RECYCLING INC.
MORGANTOWN, KENTUCKY
********** END-OF-LOAD REPORT **********
EOL DATE: 11/22/91
LOAD CUST REF SOURCE CONTRACT TYPE MATERIAL DATE CAR/TRUCK
NUMBER NUMBER CUSTOMER CUSTOMER NUMBER P/T CLASS RECEIVED CARRIER NUMBER
------ -------- -------- -------- -------- ---- -------- -------- ------- ---------
BAS-4 0000 XXXXXX XXX XXXXXX XXX X0#000000 T OTHSCRAP 11/20/91 AMERISTAR 025021
WEIGHT WEIGHT RECOV
IN OUT PCT
------ ------ -----
42,960 40,740 94.83
HEAT UNITS/
NUMBER XXXXX WEIGHT -SI- -FE- -CU- -MN- -MG- -CR-
-------- ----- ------- ---- ---- ---- ---- ---- ----
*BAS 840 5 6,586 .341 .548 .251 .668 .023 .044
*BAS 841 5 6,428 .282 .585 .207 .709 .010 .035
*BAS 842 5 5,990 .284 .715 .216 .803 .106 .048
*BAS 843 4 5,222 .323 .682 .229 .740 .023 .036
*BAS 844 4 5,342 .309 .545 .202 .849 .028 .023
*BAS 845 5 6,200 .250 .544 .208 .785 .018 .033
*BAS 846 4 4,972 .249 .650 .222 .576 .026 .037
----- -------
32 40,740
AVERAGE ANALYSIS - .292 .607 .220 .734 .033 .037
-NI- -ZN- -TI- -PB- -BI- -BE- -AL-
---- ---- ---- ---- ---- ---- ----
*BAS 840 .010 .186 .008 .014 .000 .000 97.9
*BAS 841 .007 .155 .012 .008 .000 .000 97.9
*BAS 842 .010 .175 .012 .008 .000 .000 97.6
*BAS 843 .010 .203 .010 .013 .000 .000 97.7
*BAS 844 .006 .197 .010 .019 .000 .000 97.8
*BAS 845 .006 .149 .013 .009 .000 .000 97.9
*BAS 846 .009 .122 .012 .008 .000 .000 98.0
AVERAGE ANALYSIS - .008 .170 .011 .011 .000 .000 97.8
* - THIS HEAT HAS BEEN SHIPPED.
63
54
EXHIBIT "H"
RIGHT OF FIRST REFUSAL
(Facility)
THIS RIGHT OF FIRST REFUSAL (the "Agreement"), is made and entered into as
of this 2nd day of March 1992, by and between IMCO RECYCLING INC., a Delaware
corporation (the "Grantor") and BARMET ALUMINUM CORPORATION, an Ohio corporation
(the "Grantee").
RECITALS:
A. Grantor is the owner of a parcel of real estate located near
Uhrichsville, Ohio described in Exhibit "A" attached hereto (the "Property") on
which Grantor intends to construct and operate an aluminum recycling and
processing facility (the "Facility");
B. Grantee owns and operates a rolling mill facility in Uhrichsville, Ohio
(the "Mill") located near the Property; and
C. Grantor and Grantee have entered into that certain Supply Agreement (the
"Supply Agreement") dated as of March 2, 1992, wherein Grantor has agreed, among
other agreements, to provide tolling/converting services to Grantee to satisfy
Grantee's requirements for certain raw materials at the Mill.
D. Pursuant to and as part of the considerations for the Agreement, Grantor
has agreed to grant to Grantee a right of first refusal to purchase the Property
and the Facility on the terms set forth herein.
NOW, THEREFORE, in consideration of the foregoing and of the mutual
promises, representations and undertakings of the parties set forth herein, the
adequacy and sufficiency of which is hereby acknowledged, the parties hereby
agree as follows:
1. Right of First Refusal. Grantor hereby grants to Grantee the right of first
refusal (the "Right of First Refusal") to purchase the Property and the
Facility, together with all equipment, fixtures, licenses, permits and other
tangible and intangible personal property and contract rights owned by Grantor
and used in connection with the Facility (collectively, the "Plant"). The Right
of First Refusal shall apply to any offer to purchase the Plant received by
Grantor from a third party (other than a direct or indirect wholly-owned
subsidiary of Grantor) and that Grantor is willing to accept, subject to
approval of Grantor's acceptance thereof by Grantor's lenders (the "Offer").
Upon receipt of an Offer, Grantor shall promptly give written notice of the
Offer to Grantee, together with a copy of the written Offer and any other terms
or materials delivered in connection therewith (the "Notice").
71
55
Grantee shall have ten (10) days after its receipt of the Notice (the
"Acceptance Period") to exercise the Right of First Refusal by delivering to
Grantor written notice of Grantee's exercise of the Right of First Refusal and
its agreement to purchase the Plant on the same terms as set forth in the Offer
(the "Acceptance"). If Grantor does not receive the Acceptance on or before 5:00
p.m. (Dallas, Texas time) on the last day of the Acceptance Period, Grantee
shall be conclusively deemed to have waived its Right of First Refusal and
Grantor shall be free to sell the Plant on the terms set forth in the Offer. if
Grantee delivers the Acceptance to Grantor prior to the expiration of the
Acceptance Period, Grantor and Grantee shall execute a written contract
substantially identical to the agreement constituting the Offer and Grantor
shall sell the Plant to Grantee on the terms and conditions set forth in the
Offer. Notwithstanding the above, Grantee shall not have any right to exercise
the Right of First Refusal during any time when Grantee is in material default
of its obligations under the Supply Agreement.
2. Transfer of Supply Agreement Rights. Notwithstanding any provision herein
to the contrary, Grantor agrees that it will not sell the Plant to a third party
unless Grantor also transfers to the Transferee, and the Transferee assumes in
writing, all of Grantor's rights, liabilities and obligations under and pursuant
to the Supply Agreement and this Right of First Refusal. If Grantee fails or
refuses to exercise the Right of First Refusal, Grantor shall provide to Grantee
such reasonable assurances as Buyer may reasonable require that the Transferee
has the ability to perform the obligations of the Grantor under the Supply
Agreement in a manner reasonably satisfactory to Buyer.
3. Term. This Agreement shall terminate and be of no further force and effect
upon the earlier to occur of the following events:
(a) The termination of the Supply Agreement or the Supply Agreement is no
longer in force and effect; or
(b) Grantee exercises the Right of First Refusal but fails or refuses to
consummate the purchase of the Plant in accordance with the terms of
the Offer.
4. Notices. Any notices or other communication required hereunder shall be in
writing and deemed effective upon the earlier to occur of (a) actual receipt or
(b) two (2) days after being deposited in the United States mail, certified or
registered, postage prepaid, addressed to the Grantee and the Grantor at the
following addresses, or to such other address as either party hereto may
designate to the other upon ten (10 days written notice:
72
56
to the Grantee: Barmet Aluminum Corporation
000 Xxxx Xxxxxxxx Xxxx
Xxxxx, Xxxx 00000
Attention: Xxxxx X. Xxxxx
with copies to: Xxxxxxx & Xxxxxxx
00 X. Xxxxxx Xxxxxx
Xxxxx, Xxxx 00000
Attention: Xxxxxx X. Xxxxxxxx, Esq.
to the Grantor: IMCO Recycling Inc.
0000 Xxxxx X'Xxxxxx Xxxx
Xxxxx 000
Central Tower at Xxxxxxxx Xxxxxx
Xxxxxx, Xxxxx 00000
Attention: Xxxxx Xxxxx, President
with copies to: Xxxxxx and Xxxxx, L.L.P.
0000 Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attention: Xxxx X. Xxxxxxxxx, Esq.
5. Assignment. This Agreement may be assigned by the Grantor to a wholly-owned
subsidiary of the Grantor without the consent of the Grantee. This Agreement may
not otherwise be assigned by any party hereto without the prior written consent
of the other party.
6. Waiver. No waiver of any provision of this Agreement shall be valid unless
the same is in writing and signed by the party against whom it is sought to be
enforced. No waiver of any provision of this Agreement at any time will be
deemed a waiver of any other provision of this Agreement at such time or will be
deemed a waiver of such provision at any other time. No modification of this
Agreement shall be binding unless in writing and signed by the party against
whom sought to be enforced.
7. Binding Effect. This Agreement and the various rights and obligations
arising hereunder shall inure to the benefit of and be binding upon the parties
hereto and their respective successors and assigns.
8. Governing Law. THIS AGREEMENT SHALL BE CONSTRUED UNDER AND ENFORCED
ACCORDING TO THE LAWS OF THE STATE OF OHIO.
73
57
9. Attorney's Fees. If either party is required to employ an attorney to
enforce or defend the rights of such party hereunder, the prevailing party shall
be entitled to recover its costs from the other party, including, but not
limited to, its reasonable attorney's fees.
10. Time of the Essence. Time is of the essence with respect to this Agreement.
******
74
58
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
by those duly authorized on the day and year first above written.
GRANTEE:
BARMET ALUMINUM CORPORATION, an Ohio
corporation
ATTEST: /s/ XXXXX X. XXXXX By: /s/ XXXXXX X. XXXXX, XX.
------------------------ ---------------------------------
Vice-President & C.F.O. Its: Chief Executive Officer
------------------------ --------------------------------
GRANTOR:
IMCO RECYCLING INC., a Delaware corporation
By: /s/ XXXXX X. XXXXX
-------------------------------
Its: President
-------------------------------
75
59
STATE OF OHIO )
)
COUNTY OF SUMMIT )
This instrument was acknowledged on this 2nd day of March, 1992, by Xxxxx
X. Xxxxx, Xxxxxx X. Xxxxx, Xx. of Barmet Aluminum Corporation, an Ohio
corporation, on behalf of said corporation.
/s/ [ILLEGIBLE]
---------------------------
Notary Public
March 2, 0000
Xx Xxxxxxxxxx
XXXXX XX XXXXX )
)
COUNTY OF DALLAS )
This instrument was acknowledged on this ____ day of ______, 1992, by
____________, __________ of IMCO Recycling Inc., a Delaware corporation, on
behalf of said corporation.
---------------------------
Notary Public
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IMCO RECYCLING INC.
PROPERTY DESCRIPTION
TUSCARAWAS COUNTY, OHIO
MILL TOWNSHIP
Situated in the Township of Mill, County of Tuscarawas and State of Ohio:
Lot 8 to the Rathbone tract in 4th Qr. Twp. 7 Range 1 U.S.M.D. as follows:
beginning at a post on the east boundary of the right of way of B & 0 R. R. and
at the north line of lands of Xxxxxx Xxxxxxxx about 500 feet northwardly along
said right of way line from the south line of lot 8 thence south 88 deg. 38 min.
E 1536.6 feet to a stone; thence north 8 deg. 25 min. west 715 1/2 feet to a
stone; thence north 88 deg. 33 min. west 1577 feet to a stone; thence south 11
deg. 33 min. east 720 1/2 feet to place of beginning, containing 25 acres.
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EXHIBIT "I"
RIGHT OF FIRST REFUSAL
----------------------
(Rockport]
THIS RIGHT OF FIRST REFUSAL (the "Agreement"), is made and entered into as
of this 2nd day of March, 1992, by and between BARMET ALUMINUM CORPORATION, an
Ohio corporation (the "Grantor") and IMCO RECYCLING INC., a Delaware corporation
(the "Grantee").
R E C I T A L S:
A. Grantor is the owner of a parcel of real estate located near Rockport,
Indiana, described in Exhibit "A" attached hereto (the "Property") on which
Grantor operates an aluminum recycling and processing facility (the "Facility");
B. Grantor and Grantee have entered into that certain Supply Agreement (the
"Supply Agreement") dated as of March 2, 1992, wherein Grantee has agreed, among
other agreements, to provide tolling/converting services to Grantor to satisfy
Grantor's requirements for certain raw materials at its facility in
Uhrichsville, Ohio.
C. Pursuant to and as part of the considerations for the Supply Agreement,
Grantor has agreed to grant to Grantee a right of first refusal to purchase the
Property and the Facility on the terms set forth herein.
NOW, THEREFORE, in consideration of the foregoing and of the mutual
promises, representations and undertakings of the parties set forth herein, the
adequacy and sufficiency of which is hereby acknowledged, the parties hereby
agree as follows:
1. Right of First Refusal. Grantor hereby grants to Grantee the right of first
refusal (the "Right of First Refusal") to purchase the Property and the
Facility, together with all equipment, fixtures, licenses, permits and other
tangible and intangible personal property and contract rights owned by Grantor
and used in connection with the Facility (collectively, the "Plant"). The Right
of First Refusal shall apply to any offer to purchase the Plant received by
Grantor from a third party (other than a direct or indirect wholly-owned
subsidiary of Grantor) and that Grantor is willing to accept (the "Offer"). Upon
receipt of an Offer, Grantor shall promptly give written notice of the Offer to
Grantee, together with a copy of the written Offer and any other terms or
materials delivered in connection therewith (the "Notice"). Grantee shall have
ten (10) days after its receipt of the Notice (the "Acceptance Period") to
exercise the Right of First Refusal by delivering to Grantor written notice of
Grantee's exercise of the Right of First Refusal and its agreement to purchase
the
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Plant on the same terms as set forth in the Offer (the "Acceptance"). If Grantor
does not receive the Acceptance on or before 5:00 p.m. (Dallas, Texas time) on
the last day of the Acceptance Period, Grantee shall be conclusively deemed to
have waived its Right of First Refusal and Grantor shall be free to sell the
Plant on the terms set forth in the Offer. If Grantee delivers the Acceptance to
Grantor prior to the expiration of the Acceptance Period, Grantor and Grantee
shall execute a written contract substantially identical to the agreement
constituting the Offer and Grantor shall sell the Plant to Grantee on the terms
and conditions set forth in the Offer. Notwithstanding the above, Grantee shall
not have any right to exercise the Right of First Refusal during any time when
Grantee is in material default of its obligations under the Supply Agreement.
2. Term. This Agreement shall terminate and be of no further force and effect
upon the earlier to occur of the following events:
(a) The termination of the Supply Agreement or the Supply Agreement is no
longer in force and effect;
(b) The sale of the Plant to a third party following Grantee's failure or
refusal to exercise the Right of First Refusal in accordance with the
terms hereof; or
(c) Grantee exercises the Right of First Refusal but fails or refuses to
consummate the purchase of the Plant in accordance with the terms of
the Offer.
3. Notices. Any notices or other communication required hereunder shall be in
writing and deemed effective upon the earlier to occur of (a) actual receipt or
(b) two (2) days after being deposited in the United States mail, certified or
registered, postage prepaid, addressed to the Grantee and the Grantor at the
following addresses, or to such other address as either party hereto may
designate to the other upon ten (10) days written notice:
to the Grantor: Barmet Aluminum Corporation
000 Xxxx Xxxxxxxx Xxxx
Xxxxx, Xxxx 00000
Attention: Xxxxx X. Xxxxx
with copies to: Xxxxxxx & Xxxxxxx
00 X. Xxxxxx Xxxxxx
Xxxxx, Xxxx 00000
Attention: Xxxxxx X. Xxxxxxxx, Esq.
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to the Grantee: IMCO Recycling Inc.
0000 Xxxxx X'Xxxxxx Xxxx
Xxxxx 000
Central Tower at Xxxxxxxx Xxxxxx
Xxxxxx, Xxxxx 00000
Attention: Xxxxx Xxxxx, President
with copies to: Xxxxxx and Xxxxx, L.L.P.
0000 Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attention: Xxxx X. Xxxxxxxxx, Esq.
4. Waiver. No waiver of any provision of this Agreement shall be valid unless
the same is in writing and signed by the party against whom it is sought to be
enforced. No waiver of any provision of this Agreement at any time will be
deemed a waiver of any other provision of this Agreement at such time or will be
deemed a waiver of such provision at any other time. No modification of this
Agreement shall be binding unless in writing and signed by the party against
whom sought to be enforced.
5. Binding Effect. This Agreement and the various rights and obligations
arising hereunder shall inure to the benefit of and be binding upon the parties
hereto and their respective successors and assigns.
6. Governing Law. THIS AGREEMENT SHALL BE CONSTRUED UNDER AND ENFORCED
ACCORDING TO THE LAWS OF THE STATE OF INDIANA.
7. Attorney's Fees. If either party is required to employ an attorney to
enforce or defend the rights of such party hereunder, the prevailing party shall
be entitled to recover its costs from the other party, including, but not
limited to, its reasonable attorney's fees.
8. Time of the Essence. Time is of the essence with respect to this Agreement.
* * * * * *
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IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
by those duly authorized on the day and year first above written.
GRANTOR:
BARMET ALUMINUM CORPORATION, an Ohio
corporation
ATTEST: /s/ XXXXX X. XXXXX By: /s/ XXXXXX X. XXXXX, XX.
----------------------- ---------------------------------
Vice-Pres. & C.F.O. Its: Chief Executive Officer
----------------------- --------------------------------
GRANTEE:
IMCO RECYCLING INC.,
a Delaware corporation
By: /s/ XXXXX X. XXXXX
-------------------------------
Its: President
------------------------------
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STATE OF OHIO )
)
COUNTY OF SUMMIT )
This instrument was acknowledged on this 2nd day of March, 1992, by Xxxxx
X. Xxxxx, Xxxxxx X. Xxxxx, Xx. of Barmet Aluminum Corporation, an Ohio
corporation, on behalf of said corporation.
/s/ [ILLEGIBLE]
---------------------------
Notary Public
March 2, 0000
Xx Xxxxxxxxxx
XXXXX XX XXXXX )
)
COUNTY OF DALLAS )
This instrument was acknowledged on this 2nd day of March, 1992, by Xxxxx
X. Xxxxx, President of IMCO Recycling Inc., a Delaware corporation, on behalf of
said corporation.
XXXXX XXXXX
---------------------------
Notary Public
=====================
XXXXX XXXXX
MY COMMISSION EXPIRES
January 5, 1994
=====================
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BARMET ALUMINUM CORPORATION
REAL PROPERTY DESCRIPTION
XXXXXXX COUNTY, INDIANA
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Schedule A1 -(Continued)
COMMITMENT NO. 87-126A
Beginning at an iron pin, being the northeast corner of the northwest quarter of
the northeast quarter of Section (15), Township (7) South, Range (6) West;
thence with the east line of said quarter quarter section, S 0 degrees 11'20" E,
1316.66 feet to an iron pin, being the southwest corner of the northeast quarter
of the northeast quarter of said section; thence with the south line of quarter
quarter section, N 88 degrees 27'18" E, 1327.71 feet to an iron pin, being the
northwest corner of the southwest quarter of the northwest quarter of Section
(14), Township (7) South, Range (6) West; thence with the west line of said
quarter quarter section, S 0 degrees 20'20" E, 1314.96 feet to a railroad spike,
being the northwest corner of the northwest quarter of the southwest quarter of
Section (14); thence with the West line of said quarter quarter section, S 0
degrees 36'32" W, 330.10 feet to an iron pin, being in the east line of the
northeast quarter of the southeast quarter of said section (15); thence severing
said quarter quarter section, S 88 degrees 24'00" W, 1322.42 feet to an iron
pin, being in the west line of said quarter quarter section; thence with the
west line of said quarter quarter section S 0 degrees 05'52" W, 1006.35 feet to
an iron pin, being the northeast corner of the southwest quarter of the
southeast quarter of said Section (15); thence with the north line of said
quarter quarter section, S 89 degrees l3'25" W, 1312.84 feet to an iron pin,
being the southeast corner of the northeast quarter of the southwest quarter of
said Section (15); thence with the east line of said quarter quarter section, N
0 degrees 25'44" W, 1317.17 feet to a point, being the southeast corner of the
southeast quarter of the northwest quarter of said section (15); thence with the
east line of said quarter quarter section, N 0 degrees 32'43" W, 1317.52 feet to
an iron pin, being the southeast corner of the northeast quarter of the
northwest quarter of said Section (15); thence with the east line of said
quarter quarter section, N 0 15'19" W, 1317.52 feet to a concrete nail, being
the northwest corner of the northwest quarter of the northeast quarter of said
Section (15); thence with the north line of said quarter quarter Section N 88
degrees 29'55" E, 1329.22 feet to the point of beginning. EXCEPT 0.50 acres,
more particularly described as follows: Beginning at an iron pin, being the
northwest corner of the southwest quarter of the northwest quarter of said
Section (14); thence with the west line of said quarter quarter section, S 0
degrees 20'20" E, 66.00 feet to an iron pin, being in the east line of the
southeast quarter of the northeast quarter of said Section (15); thence severing
said quarter quarter section, S 88 degrees 27'18" W, 330.00 feet to an iron
pin and, N 0 degrees 20'20" W, 66.00 feet to an iron pin, being in the South
line of the northeast quarter of the northeast quarter of said Section (15);
thence with the south line of said quarter quarter section, N 88 degrees 27'18"
E, 330.00 feet to the point of beginning. ALSO EXCEPT 0.309 acres, more
particularly described as follows: Beginning at an iron pin, being in the west
line of the northwest quarter of the northeast quarter of said section (15) and
being, S 0 degrees 15'19" E, 873.90 feet from the northwest corner of said
quarter quarter section; thence severing said quarter section, the following
seven (7) calls:
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Schedule A2 -(Continued)
COMMITMENT NO.
87-126A
(1) N 88 degrees 29'55" E, 75.00 feet to an iron pin;
(2) N 0 degrees 15'19" W, 27.00 feet to an iron pin;
(3) N 88 degrees 29'55" E, 100.00 feet to an iron pin;
(4) S0 degrees 15'19" E, 100.00 feet to an iron pin;
(5) S88 degrees 29'55" W, 100.00 feet to an iron pin;
(6) N 0 degrees 15'19" W, 27.00 feet to an iron pin;
(7) S88 degrees 29'55" W, 75.00 feet to an iron pin, being in the West
line of said quarter quarter section; thence with the west line of
said quarter quarter section, N 0 degrees 15'19" W, 46.00 feet to the
point of beginning.
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EXHIBIT "J"
LIST OF AND PURCHASE PRICE FOR PERSONAL PROPERTY
DESCRIPTION
Tilting Rotary Furnace with 20 ton Crane
and Charging System
Scrap Crusher and Conveyor
Eight (8) lined Crucibles with lids;
Two (2) pre-heat Burner Stations
One 40-ton low-bed Truck
The aggregate purchase price for the Personal Property shall be One Million
Dollars ($1,000,000.00).
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EXHIBIT "K"
XXXX OF SALE
Know all men by these presents that Barmet Aluminum Corporation, an Ohio
corporation, the Grantor, for consideration of One Million Dollars
($1,000,000.00) paid by IMCO Recycling Inc., the Grantee, the receipt of which
is hereby acknowledged, does hereby grant, bargain, sell, transfer and deliver
onto said Grantee the goods and chattels listed in the Schedule attached hereto
(the "Personal Property") marked Exhibit "A" and made a part hereof, and all
insurance proceeds and insurance claims of Grantor relating to all or any part
of the Personal Property and, to the extent transferable, the benefit of and the
right to enforce the covenants and warranties, if any, that Grantor is entitled
to enforce with respect to the Personal Property against Grantor's predecessors
in title to the Personal Property and against the manufacturers or producers of
the Personal Property.
And the said Grantor hereby covenants to and with the said Grantee that
said Grantor is the lawful owner of the above-described goods and chattels; that
the same are free from all encumbrances whatsoever, and that said Grantor has
good right to sell the same as aforesaid, and that said Grantor will warrant and
defend the same against all lawful claims and demands whatsoever.
Grantee agrees and understands that the purchase of the Personal Property
is "AS IS, WHERE IS," without any representation or warranty of any nature
whatsoever, except (a) for the warranties of title contained herein, and (b)
that the Personal Property has been kept and will, until delivered to Grantee,
be kept in good repair, condition and working order, ordinary wear
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and tear excepted.
From time to time, as and when requested by Grantee, Grantor shall execute
and deliver, or cause to be executed and delivered, such documents and
instruments and shall take, or cause to be taken, such further or other actions
as may be reasonably necessary to carry out the purposes of this Xxxx of Sale.
This Xxxx of Sale shall bind Grantor and its successors and assigns and
inure to the benefit of Grantee and its successors and assigns.
The covenants and warranties of Grantor contained herein shall survive the
closing of the transfer of the Personal Property evidenced hereby.
This Xxxx of Sale shall be governed by and construed in accordance with the
laws of the State of Ohio, excluding any conflicts-of-law rule or principle
which might refer same to another jurisdiction.
IN WITNESS WHEREOF, I have hereunto set my hand and seal this __ day of
__________, ____.
SIGNED AND DELIVERED IN THE PRESENCE OF: BARMET ALUMINUM CORPORATION
By
---------------------------------------- ------------------------------
Its
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