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EXHIBIT 10.23
FURNACE COKE SUPPLY AGREEMENT
BETWEEN
ROUGE STEEL COMPANY
AND
BETHLEHEM STEEL CORPORATION
DATED: OCTOBER 31, 1996
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SECTION 1. TERM OF THE SUPPLY AGREEMENT.
1.1 TERM. The initial term of this Agreement shall commence on January 1,
1997 and, subject to earlier termination in accordance with the terms
hereof, shall terminate on December 31, 2001. This Agreement shall
continue on a year-to-year basis after the initial term unless terminated
at the end of the initial term (or earlier, as provided herein) or, unless
terminated at the end of the initial term and any such subsequent annual
term upon written notification by either party to the other no later than
the prior December 31.
SECTION 2. QUANTITY.
2.1 The quantity of Coke sold and purchased under this Agreement shall be
approximately 650,000 natural net tons in each calendar year.
2.2 Buyer may declare its intent to increase or reduce purchase tonnage by
as much as 60,000 tons in any calender year for 1997 forward with
notification to Seller of its intention on or before October 1st of each
immediately preceding year and, in the case of a decreased tonnage
declaration, the purchase quantity shall be so adjusted.
In the case of an increased tonnage declaration, the purchase quantity
shall be so adjusted, pending availability and agreement by Seller to
increase shipments.
2.3 Deliveries shall be made throughout each year in installments at as
uniform a rate as practicable in accordance with a written monthly delivery
schedule specifying shipping dates and quantities.
SECTION 3. PRICE OF COKE.
3.1 BASE PRICE. The price to be paid by Buyer to Seller per natural
net ton (natural ton includes moisture), F.O.B. loaded rail cars at
Seller's Bethlehem Coke Plan shall be $106.00 for the years 1997 and 1998,
and $108.00 effective January 1, 1999, subject to price adjustments to be
defined by Item 7.1 as described in Exhibit "B".
3.1.A. BASE PRICE. In the event Seller should offer to make shipments
to Buyer from Seller's Lackawanna Coke Plant in place of or to
supplement shipments from Seller's Bethlehem Coke Plant, and Buyer
agrees to accept such shipments, the price for Coke from the
Lackawanna Coke Plant will be established
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by the parties and shall take into consideration differentials in
applicable freight costs and differentials in quality.
3.2 PRICE ADJUSTMENTS. On or before April 15, 1999, Seller shall propose to
Buyer a revised selling price to be effective on January 1, 2000. The price so
proposed will be determined from any combination of cost and market factors
including, but not limited to, changes in relative cost of coal delivered to
the Seller's Coke Plant, changes in cost of labor, changes in hot roll sheet
producer price index and relative value of other commercial Coke of comparable
quality available in the marketplace.
3.2.A. Should the parties fail to agree on Seller's proposed price, or
other alternate price before July 1, 1999, then the price currently in
effect will apply for shipments which will continue at one-half of the
contract rate from January 1 through December 31 of the year for which
agreement was not made, after which time this Agreement shall terminate.
3.2.B. Price nomination by Seller for 2001 and subsequent years shall be
made on or before August 1 of each preceding year. Should the parties fail
to agree on such price or alternate price before October 1, then the
termination provisions of Section 3.2.A shall apply.
3.3 GOVERNMENT LEGISLATION. If, during the term of the Agreement, federal,
state or local laws or regulations, including but not limited to such laws or
regulations which affect business or sales taxes, or other costs are imposed
which directly increases the cost of producing or processing Coke by Seller for
Buyer hereunder, Buyer and Seller shall, through good faith negotiations,
jointly determine the effect of such legislation on Seller's aforesaid cost of
producing or processing Coke for Buyer, and Buyer and Seller shall jointly agree
to an applicable cost per ton to be added to the existing price at the time such
increase in the cost is realized.
Should the parties be unable to agree on Seller's proposed price,
reflecting such costs, or other alternate price, then the price currently in
effect will apply for shipments which will continue at the existing contract
rate for the next immediate six (6) months, or to the date such costs were to
take effect, whichever first occurs, at which time this Agreement will
terminate.
If any price adjustment is in process, invoicing shall be on the basis of
base price then in effect, and the appropriate adjustment shall be made
retroactively to the effective date as soon as the pending price adjustment has
been determined.
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SECTION 4. DELIVERY AND TITLE.
4.1 The Coke sold and purchased hereunder shall be delivered to Buyer in
rail cars at Seller's Coke Plant.
4.2 The title to and risk of loss of Coke sold and purchased hereunder
shall pass to Buyer upon loading into cars at Seller's Coke Plant.
4.3 Seller shall make good faith effort to ensure rail car integrity in
order to avoid in-transit coke loss. Buyer shall make good faith effort to
return rail cars unloaded and with xxxxxx doors sealed in suitable condition
for reloading.
4.4 Buyer shall make all necessary arrangements for transportation. Seller
shall cooperate with and provide assistance to Buyer where necessary and
appropriate, and the parties shall communicate with each other regularly to
schedule and expedite shipments.
SECTION 5. WEIGHTS. Weights to be applied for billing purposes will be
those weights as determined by scales at origin or in transit, which scales
shall be periodically calibrated and certified in accordance with existing
railroad industry standards. Initially, rail car stenciled tare weights will
be used, with either Buyer or Seller reserving the right to have cars
light-weighed from time to time, in which case the actual difference between
loaded and light weights will apply for billing purposes.
SECTION 6. BILLING AND PAYMENT. Seller shall invoice Buyer for shipments
occurring from the 1st to the 15th of each month upon receipt of weight
certificates, with payment to be made by Buyer on or before the 10th of the
following month. Seller shall invoice Buyer for shipments occurring from the
16th to the 31st of each month upon receipt of weight certificates, with
payment to be made by Buyer on or before the 25th of the following month.
Send payment to: BETHLEHEM STEEL CORPORATION
X X XXX 00000-0000
XXXXXXXXXXXX, XX 00000-0000
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6.1 If any price adjustment is in process, invoicing shall be on the basis of
base price then in effect, and the appropriate adjustment shall be made
retroactively as soon as the pending price has been determined.
6.2 Invoices for each shipment will be corrected, if applicable, to reflect any
weight adjustment for moisture in excess of specification limit, as set out in
Exhibit "B" hereof.
6.3 Cost of freezeproofing agents, as and if requested by Buyer, and as agreed
by the parties shall be shown as a separate item on invoices of each shipment so
treated.
SECTION 7. COKE QUALITY.
7.1 The quality of the Coke to be purchased and sold hereunder shall conform
as closely as practicable to the specifications set forth in Exhibit "A",
attached hereto and included herein by reference, with price adjustments to be
implemented as specified in Exhibit "B" for deliveries that deviate beyond the
stated specification limits.
7.2 Initial specifications stated in Exhibit "A" are representative of the
six-month period prior to the effective date of the Agreement. The parties will
review performance after the first six months under the Agreement, at which time
specification limits will be revised as necessary by mutual agreement to reflect
actual performance. Any further changes in the specifications stated in Exhibit
"A", as a result of changes in coals or operating practices from time to time
during the term of the Agreement, will be mutually agreed to by Buyer and
Seller.
7.3 Seller will achieve ISO 9002 certification by December 1998, or
subsequently provide Buyer an acceptable timeline to achieve such certification.
Once that certification is achieved, Seller will put forth good effort in a
continuing program to obtain QS 9000 certification.
SECTION 8. SAMPLING AND ANALYSIS.
8.1 Seller shall sample and analyze the Coke sold and purchased hereunder at
Seller's Coke Plants in accordance with its then current practice unless
otherwise agreed upon by the parties in accordance with Item
8.2. Seller shall sample and analyze each sample daily for each of the
chemical and physical specifications, as set for the Exhibit A (with the
exception of ultimate and
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ash component analyses, and reactivity tests (CSR, CRI and Bethlehem
reactivity), which will be performed periodically as agreed with results sent
to Buyer).
Seller shall sample the Coke produced by each production turn in
accordance with its then current practice, and submit such samples to UEC Coal
& Coke Lab in Pittsburgh, PA, and Commercial Testing and Engineering Company's
lab in Nesquehoning, PA, for chemical and physical analysis in accordance with
their respective then current practices, or as otherwise agreed by the parties,
to determine the average analysis of Coke loaded for Buyer on each day.
The average daily analysis for each shipment shall be transmitted by
fax or electronically to such persons or places as indicated on Exhibit "C"
attached hereto, as soon as available (usually 24 hours following loading).
Such daily average analysis shall be determinative of product value for
purposes of billing and payment of the purchase price.
8.2 In its efforts toward continuous improvement, Seller agrees to further
review its sampling and analysis techniques and systems to determine and
implement any improvements to provide the most representative data on its coke
properties, giving consideration of the practical limitations of facilities,
manpower and costs required both at the sampling facility and participating
laboratories. Any changes proposed or required will be reviewed and mutually
agreed to by the parties.
SECTION 9. QUALITY ADJUSTMENTS AND REMEDIES.
9.1 In the event Coke sold and purchased hereunder fails to conform to the
quality parameters set forth in Exhibit A, Buyer shall be entitled to the
following remedies as applicable:
a) In the event any individual shipment of Coke, sampled and analyzed in
accordance with Section 8, fails to conform to the applicable minimum or
maximum specifications with respect to ash, sulfur, volatile matter,
stability, moisture or size, but does not exceed applicable rejection
criteria with respect to any specification, the price adjustment set for
the Exhibit A with respect to such specification shall apply and shall
constitute Buyer's sole and exclusive remedy.
b) In the event any individual shipment of Coke, sampled and analyzed in
accordance with Section 8, exceeds the applicable rejection criteria
with respect to any specification, Buyer may, at its sole option, and as
its sole and exclusive remedies, reject such shipment and reconsign it
to Seller at Seller's expense or accept such shipment with the
applicable price adjustment as set forth in Exhibit B. In the event of
any such rejection, Buyer may, at its
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sole option, elect for Seller to replace such Coke in kind or refund
the price (if already paid).
Such rejected shipments shall be excluded from quantity
provisions as set forth in Item 2.1.
c) In the event the average analysis of any of the critical elements
identified in Exhibit "A" over two (2) consecutive months of shipments
of Coke hereunder fail to conform to any applicable minimum or maximum
specification as to which price adjustments would apply, as sampled and
analyzed in accordance with Section 8, Buyer may, at its sole and
exclusive remedy and upon thirty (30) days prior written notice to
Seller, elect to suspend further purchases until such time as Seller
has provided assurance satisfactory to Buyer that conforming Coke will
be supplied or cancel this Agreement.
9.2 Any applicable price adjustments shall be made through monthly
reconciliation statements noting any specification deviations and the resultant
adjustments. Such statements shall be furnished by Seller to Buyer on or
before the tenth (10th) of each month for shipments occurring during the
preceding month. Seller shall issue a monthly credit memorandum, with attached
copy of the monthly reconciliation statement, which shall be calculated by
application of the adjustment formulae contained in Exhibit B hereof.
SECTION 10. DISCLAIMER OF IMPLIED WARRANTIES. THERE ARE NO WARRANTIES,
EXPRESSED OR IMPLIED, IN FACT OR IN LAW, INCLUDING, WITHOUT LIMITING THE
GENERALITY OF THE FOREGOING, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE, WHICH EXTEND BEYOND THE EXPRESS WARRANTIES CONTAINED
HEREIN. SELLER SHALL NOT BE LIABLE IN CONTRACT OR TORT FOR ANY DIRECT,
INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING BY WAY OF
ILLUSTRATION AND NOT OF LIMITATION, LOSS OF USE, LOSS OF WORK IN PROCESS,
DOWNTIME OR LOSS OF PROFITS.
SECTION 11. MATERIAL BREACH OR DEFAULT.
11.1 Except as otherwise provided below, in the event of any material breach
or default of this Agreement by either party, the non-defaulting party may,
upon thirty (30) days written notice to
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the other party and such party's failure to cure such material breach or
default within such period, terminate this Agreement without prejudice to any
other rights or remedies the non-defaulting party may have hereunder or at law.
In the event of default by Buyer by failure to make payments due, Seller may
suspend further deliveries hereunder until such default shall have been
corrected. If such default is not corrected within fifteen (15) days of Seller
having given written notice of such default, Seller may terminate this
Agreement without prejudice to any other rights or remedies Seller may have
hereunder or at law.
SECTION 12. FORCE MAJEURE. The term "Force Majeure" as used herein shall mean
any and all unforeseeable causes beyond the control and without the fault or
negligence of the party failing to perform including but not limited to Acts of
God, acts of the public enemy, insurrection, riots, labor disputes, boycotts,
labor and material shortages, fires, explosions, floods, breakdowns of or
damage to plants, equipment or facilities, interruptions to transportation,
embargoes, acts of civil, judicial or military authorities, acts of
governmental authorities or other causes of a similar nature which wholly or
partly prevent the production, delivering or loading of Coke by Seller, or the
receiving, transporting, accepting or utilizing of the Coke by Buyer. It is
understood and agreed that the settlement of strikes or lockouts shall be
entirely within the discretion of the party affected.
EFFECT HEREUNDER. If, because of any Force Majeure, either party
hereto is unable to carry out any of its obligations under this agreement and,
if such party shall promptly give to the other concerned party written notice
of such Force Majeure, then the obligations of the party receiving the notice
shall be equally suspended; provided, however, that the party giving such
notice shall use its best efforts to eliminate such Force Majeure insofar as is
reasonable with a minimum of delay. Any deficiencies or acceptance of the Coke
hereunder caused by Force Majeure shall not be made up except by mutual
consent.
SECTION 13. FACILITIES SHUTDOWN. If during the term of this Agreement,
i) Any of Buyer's blast furnaces and facilities are shut down (or their
operation substantially curtailed) by Buyer, in its sole judgment, in
response to or anticipation of (A) the impact of compliance with any laws,
rules or regulations, (B) economic hardship or (C) unexpected significant
operational change which in turn reduces Coke requirements; or
ii) Any of Seller's Coke Plants and facilities are shut down (or their
operation substantially curtailed) by Seller, in its sole judgment, in
response to or anticipation of (A) the impact of
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without the prior written consent of the non-assigning party, which consent
shall not be unreasonably withheld.
SECTION 17. ARBITRATION. Any controversy or claim arising out of or
relating to this Agreement, or the breach thereof, shall be settled by
arbitration in the City of Cleveland, State of Ohio, by a panel of three (3)
arbitrators, in accordance with the commercial arbitration rules of the
American Arbitration Association. The arbitration shall be governed by the
United States Arbitration Act, 9 U.S.C. paragraphs 1-16, and judgment upon the
award rendered by the arbitrators may be entered by any court having
jurisdiction thereof. The arbitrators shall not be empowered to award damages
in excess of compensatory damages.
SECTION 18. HEADINGS NOT TO AFFECT CONSTRUCTION. The headings to the respective
sections and paragraphs of this Agreement are inserted for convenience of
reference, and are neither to be taken to be any part of the provisions hereof,
nor to control or affect the meaning, construction or effect of the same.
SECTION 19. WRITTEN INSTRUMENT CONTAINS ENTIRE AGREEMENT. This written
instrument contains the entire agreement between the parties hereto with
respect to the subject matter, and there are no other understandings or
agreements between said parties or either of them with respect thereto. Any
and all amendments, supplements, and modifications to this Agreement shall be
in writing, and signed by an officer of each party hereto.
SECTION 20. SEVERABILITY. If any provision of this Agreement shall be
declared invalid and unenforceable, such invalidity or unenforceability shall
attach only to such provision, and this Agreement shall be carried out as if
each invalid or unenforceable section were not contained herein.
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INTENDING TO BE LEGALLY BOUND HEREBY, THE PARTIES HERETO HAVE EXECUTED
THIS AGREEMENT IN THEIR RESPECTIVE CORPORATE NAMES, AS OF THE DATE FIRST ABOVE
WRITTEN.
ROUGE STEEL COMPANY
WITNESS: BY XXXXXX X XXXXXX
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[SIG]
TITLE V. P. Purch & Trans
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BETHLEHEM STEEL CORPORATION
WITNESS: BY [SIG]
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[SIG]
TITLE Manager, Raw Material Team
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