Exhibit 10.11
CONFIDENTIAL TREATMENT REQUESTED
UNDER C.F.R. SECTIONS
200.80(b)(4), 200.83 and 230.406
*** INDICATES OMITTED MATERIAL THAT
IS THE SUBJECT OF A CONFIDENTIAL
TREATMENT REQUEST FILED
SEPARATELY WITH THE COMMISSION
COKE SUPPLY AGREEMENT
by and between
UNITED STATES STEEL CORPORATION
and
REPUBLIC ENGINEERED PRODUCTS, LLC
TABLE OF CONTENTS
ARTICLE I - DEFINITIONS .................................................... 1
ARTICLE II - COKE SALES .................................................... 3
2.1 Quantities. .............................................. 3
2.2 Forecasting and Declarations ............................. 4
2.3 Sampling, Analysis and Weighing. ......................... 6
2.4 Prices. .................................................. 7
2.5 Storage. ................................................. 8
2.6 Invoices and Payment. .................................... 9
2.7 Delivery, Title and Risk of Loss. ........................ 11
2.8 Terms and Conditions of Sale. ............................ 11
2.9 Warranty ................................................. 11
2.10 Freeze-Conditioning. ..................................... 12
2.11 Most Favored Customer. ................................... 12
2.12 Cross Default; Setoff; Right to Substitute New Terms ..... 13
ARTICLE III - TERM AND TERMINATION ......................................... 14
3.1 Term. .................................................... 14
3.2 Termination. ............................................. 15
ARTICLE IV - MISCELLANEOUS ................................................. 15
4.1 Intent of Agreement. ..................................... 15
4.2 Payment Errors. .......................................... 15
4.3 Dispute Resolution. ...................................... 16
4.4 Records. ................................................. 16
4.5 Confidentiality. ......................................... 17
4.6 Severability. ............................................ 18
4.7 Rights and Remedies; No Consequential Damages. ........... 18
4.8 Costs and Expenses. ...................................... 18
4.9 Notices. ................................................. 18
4.10 Assignment. .............................................. 19
4.11 Counterparts. ............................................ 20
4.12 Entire Agreement. ........................................ 20
4.13 Headings. ................................................ 20
4.14 Governing Law. ........................................... 20
4.15 No Third Party Rights. ................................... 20
4.16 Waiver and Amendments. ................................... 20
4.17 Force Majeure. ........................................... 20
SCHEDULE A: 0000 Xxxxxxxx Xxxx Quality Specifications
COKE SUPPLY AGREEMENT
THIS COKE SUPPLY AGREEMENT, made effective as of August 16, 2002 (the
"Effective Date"), by and between REPUBLIC ENGINEERED PRODUCTS, LLC, a Delaware
limited liability company ("Buyer" or "Republic") and UNITED STATES STEEL
CORPORATION, a Delaware corporation ("Seller" or "USS").
W I T N E S S E T H:
WHEREAS, Buyer desires to obtain a reliable source of blast furnace
coke for its Lorain Works steelmaking facility located near Lorain, Ohio; and
WHEREAS, Seller desires to supply to Buyer blast furnace coke produced
by Seller at its Clairton Works in Clairton, Pennsylvania, in accordance with
the terms and conditions set forth herein;
WHEREAS, Buyer and Seller wish to enter into this Coke Supply Agreement
(this "Agreement"), setting forth, inter alia, the terms and conditions relating
to Seller's agreement to sell to Buyer, and Buyer's agreement to purchase from
Seller, blast furnace coke (including Coke, as defined herein), all upon and
subject to the terms and conditions herein provided.
NOW, THEREFORE, Buyer and Seller hereby agree as follows:
ARTICLE I - DEFINITIONS
As used herein, the following terms shall have the meanings set forth
below:
"Agreement" shall have the meaning assigned in the Recitals hereto.
"Alternate Coke" means blast furnace coke produced by sources located
outside the continental United States.
"Business Plan" means Republic's five-year business plan as presented to
USS on August 14, 2002.
"Buyer" shall have the meaning assigned in the preamble hereto.
"Coke" means blast furnace coke produced by Seller at Clairton Works
which meets the Specifications.
"Default" shall have the meaning assigned in Section 3.1.
"Effective Date" shall have the meaning assigned in the preamble hereto.
"Force Majeure" shall have the meaning assigned in Section 4.17(a).
"Late Payment Rate" means [***].
"Lorain Pipe Xxxxx" or "LPM" means USS Tubular Products Division's
tube/pipe making facility in Lorain, Ohio (such facility referred to herein as
the "Pipemill").
"Material Adverse Change" shall have the meaning assigned in Section
2.6(f).
"Payment Date" shall have the meaning assigned in Section 2.6(c).
"Pellets" shall have the meaning set forth in the Pellet Supply
Agreement.
"Pellet Supply Agreement" means the Pellet Supply Agreement of even date
herewith by and between Buyer and Seller.
"Person" means any individual, partnership, joint venture, firm,
corporation, limited liability company, association, trust or other entity or
government or political subdivision or any agency, department or instrumentality
thereof.
"Proprietary Information" shall have the meaning assigned in Section
4.5(a).
"Republic" shall have the meaning assigned in the preamble thereto.
"Rounds" shall have the meaning set forth in the Rounds Supply
Agreement.
"Rounds Supply Agreement" means the Rounds Supply Agreement of even date
herewith by and among Buyer, LPM and USS.
"Seller" shall have the meaning assigned in the preamble hereto.
"Services Agreement" means the Administrative and Utilities Services
Agreement dated August 16, 2002 by and between LPM and Buyer.
"Settlement Date" shall have the meaning assigned in Section 2.6(c).
"Settlement Period" shall have the meaning assigned in Section 2.6(c).
"Specifications" means the qualities, sizes, conditions and other
specifications set forth on Schedule A, as the same may be amended from time to
time by mutual agreement of the parties.
"Ton," "net ton" and "NT" each means 2,000 pounds avoirdupois in weight.
"USS" shall have the meaning assigned in the preamble hereto.
2
ARTICLE II - COKE SALES
2.1 Quantities.
(a) Subject to the terms hereof, Seller agrees to sell and deliver to
Buyer, and Buyer agrees to purchase and accept delivery of, 100% of Buyer's
requirements for blast furnace coke (also generically referred to herein as
"coke", which consists of the subsets of Coke and Alternate Coke) for
consumption in one blast furnace at Lorain Works. Seller shall also have a right
of first refusal (but not the obligation) to supply Buyer's requirements for
coke for the second blast furnace at Lorain Works in the event Buyer operates
both blast furnaces simultaneously. Except as provided in clause (b) below, all
of Buyer's requirements for blast furnace coke shall be fulfilled with Coke.
Buyer may not resell or trade blast furnace coke, except for fines and/or
screenings, unless prior written consent is obtained from Seller.
(b) On an annual basis, Buyer may require that up to [***] of its
requirements to be fulfilled with blast furnace coke supplied by Seller in one
or more of the three ways identified below. Buyer's preparation of the Quarterly
Declarations and Amended Monthly Delivery Schedules as set forth in Section
2.2(b) below shall be accomplished in a manner that takes into account the
following options, all of which collectively shall be subject to said [***]
annual limit, as monitored and reported by Seller from time to time.
(i) In the event that at any point(s) in time during the course
of a year Seller forecasts purchasing Alternate Coke for
movement by barge via the Mississippi River to Seller's Xxxx
Works in Gary, Indiana, upon Buyer's election as provided
herein, Seller shall make arrangements to acquire a
sufficient quantity of Alternate Coke to satisfy such
requirements of Buyer. Alternate Coke shall be re-sold to
Buyer (and invoiced to and paid by Buyer in accordance with
Section 2.6 hereof) [***], F.O.B. Ohio River port,
Steubenville, Ohio, and Buyer shall be responsible for
arranging and paying for all transportation from such port
to Lorain Works. No later than ten days prior to Seller's
commitment to purchase Alternate Coke on a particular
occasion, Seller shall provide Buyer written notice of
Seller's intentions for purchasing Alternate Coke for Xxxx
Works for such occasion and the reasonably anticipated
quality specifications for the Alternate Coke to be acquired
by Seller. Buyer shall advise Seller in writing no later
than five days after receipt of such notice from Seller of
Buyer's election to accept a specified quantity of such
Alternate Coke. Any failure of Buyer to respond in the
affirmative within said five days shall be deemed a
rejection of the opportunity.
(ii) In connection with the forecasting and declaration process
set forth in Section 2.2 below, Seller shall advise Buyer no
less often than monthly of Seller's projected plans for
purchasing Alternate Coke for Xxxx Works pursuant to Section
2.1(b)(i) above. In the event Seller does not forecast at
any given point in time purchasing Alternate Coke for its
Xxxx Works during the 90 days, or in the reasonable judgment
of Buyer the quality specifications for Alternate Coke to be
purchased by Seller during such time would make it
incompatible for use
3
in Buyer's blast furnace, Upon Buyer's written request, and
as Buyer's agent, Seller shall assert commercially
reasonable efforts to acquire for Buyer's account a
sufficient quantity of Alternate Coke to satisfy such
requirements as specified in Buyer's request, upon terms and
conditions and conforming with specifications reasonably
acceptable to Buyer. Such commitments shall be incurred in
Buyer's name, and Buyer shall be solely responsible for
payment of all such Alternative Coke so acquired, and for
purposes of any customs clearance that may be required,
Buyer shall be the importer of record. In compensation for
Seller's efforts hereunder, Buyer shall pay Seller $[***]
per ton of such coke acquired on behalf of Buyer, and such
amounts shall be paid in accordance with Section 2.6 hereof.
(iii) If, pursuant to Section 2.1(b)(ii) above, Seller is able to
arrange for the purchase of Alternate Coke for Buyer's
account upon terms and conditions, in quantities, and
conforming with specifications acceptable to Buyer, at
Seller's option Seller may, at the time it offers to
purchase Alternate Coke in Buyer's name as set forth in
Section 2.1(b)(ii), also offer, in writing, to sell to
Buyer, in lieu of such Alternate Coke, an equal quantity of
Coke; provided further, that the price of such quantity of
Coke shall be adjusted to match the price of the Alternate
Coke then available for purchase by Buyer which is of a
quality that is compatible for use in Buyer's blast furnace;
provided, however, that Seller shall also have the right to
adjust such price to the extent as may be agreed upon by the
parties, each acting in good faith, to take into account
differences between the terms and conditions and/or the
quality of said Alternate Coke with those of Seller's Coke
hereunder. If Seller offers Coke in lieu of Alternate Coke,
Buyer shall accept or decline such offer in writing within
ten days of its receipt of Seller's offer. Buyer's failure
to respond within said ten day period shall be deemed to be
rejection of the Alternate Coke and acceptance of Seller's
offer to supply Coke under this Section 2.1(b)(iii).
2.2 Forecasting and Declarations.
(a) During the term of this Agreement, Buyer in good faith will provide
Seller with annual written forecasts, consistent with Buyer's business plan, of
the quantity of blast furnace coke to be purchased hereunder for each calendar
year not later than 90 days prior to the commencement of such year. It is
understood that Buyer's forecasts provided in accordance with this Section
2.2(a) are for the purpose of facilitating production, scheduling and delivery
of blast furnace coke and are not binding upon Buyer. It is also expressly
understood and agreed that Seller shall not be deemed in breach of this
Agreement in connection with any failure to provide adequate supplies of blast
furnace coke to satisfy Buyer's requirements caused by Buyer's failure to timely
submit the forecasts or declarations required by this Section 2.2.
(b) For each calendar quarter during the term of this Agreement, Buyer
shall provide Seller a written declaration (hereinafter "Quarterly Declaration")
of the quantities of blast furnace coke to be purchased hereunder. The quantity
of Alternate Coke in any calendar quarter cannot be greater than [***] of the
Quarterly Declaration. The declarations must be received by Seller no later
4
than 60 days before the calendar quarter in question. The declarations will
specify quantities by the calendar months during which delivery is requested
(hereinafter "Monthly Delivery Schedule"). No later than 30 days before the
beginning of each calendar month, Buyer may amend its Monthly Delivery Schedule
for such month as set forth in Buyer's Quarterly Declaration so that the
quantity of blast furnace coke to be purchased during said month may be greater
or lesser than the quantity in the Monthly Delivery Schedule for such month as
set forth in Buyer's Quarterly Declaration by up to ten percent (10%)
(hereinafter "Amended Monthly Delivery Schedule"); provided, however, that the
quantity of Alternate Coke for the calendar quarter does not exceed [***] of the
blast furnace coke to be purchased by Buyer during said quarter. The total
quantities of blast furnace coke in Buyer's Monthly Delivery Schedules or
Amended Monthly Delivery Schedules made pursuant to this paragraph shall be the
binding purchase and sale commitments of Buyer and Seller, respectively, under
this Agreement. Buyer agrees to use reasonable efforts to purchase blast furnace
coke for delivery at as uniform a rate as practicable from month to month;
provided further, that in no event will Buyer be obligated to disrupt its normal
course of business or to incur any additional expense in exerting such efforts.
Buyer shall make its declarations hereunder in good faith, considering its
commitment under Section 2.1 herein to purchase from Seller 100% of Buyer's
requirements for blast furnace coke (subject to the limits on Alternate Coke as
provided herein) and considering the reliance that Seller will, of necessity,
place on the declarations. All requests for changes in a Monthly Delivery
Schedule or Amended Monthly Delivery Schedule that are received after said 30th
day preceding the month (i) shall be subject to acceptance or rejection by
Seller and (ii) shall not be binding on Seller until accepted, which acceptance
shall not be unreasonably withheld.
(c) The provisions of Section 2.2(b), above, notwithstanding, if LPM's
forecast of Rounds for a given month as contemplated by the heat forecast
submitted pursuant to Section 2.4(a)(ii) of the Rounds Supply Agreement
(hereinafter the "Heat Forecast") is less than the number of Rounds initially
forecast by LPM for said month as part of the quarterly forecast under Section
2.1(ii) of the Rounds Supply Agreement (hereinafter the "Monthly Forecast") by
more than ten percent (10%) of said Monthly Forecast, Buyer shall not be deemed
to be in breach of its purchase commitment for blast furnace coke for said month
under Section 2.2(b) above to the extent that the shortfall of Buyer's actual
purchases of blast furnace coke for said month from the quantity of blast
furnace coke committed to under Section 2.2(b) above is no greater than 40% of
the shortfall (if any) of LPM's actual purchases of Rounds for said month under
Section 2.4(a)(iii) of the Rounds Supply Agreement as compared to LPM's forecast
of Rounds for said month as contemplated by the Heat Forecast for said month.
(d) Within seven business days of Seller's receipt of any Quarterly
Declaration (including the Monthly Delivery Schedule) or Amended Monthly
Delivery Schedule from Buyer, Seller shall send Buyer a written acknowledgement
of its receipt of the Quarterly Declaration or Amended Monthly Delivery
Schedule. Any proposed changes by Seller from Buyer's written Quarterly
Declaration or any Amended Monthly Delivery Schedule shall be negotiated by the
parties before acknowledgement. If Seller has the right to reject all or any
portion of such Quarterly Declaration or Amended Monthly Delivery Schedule
pursuant to Section 2.2(b), Seller's written acknowledgement shall identify the
basis for any such rejection. Seller's notices of acknowledgement shall set
forth the quantity and type of coke (including without limitation Coke) Seller
will deliver to Buyer and the anticipated delivery schedule.
5
(e) Seller may fulfill its obligations to sell and deliver Coke under
this Agreement by supplying Buyer Coke produced at Clairton Works by Clairton
1314B Partnership, L. P., a Delaware limited partnership ("1314B"). Coke
produced by 1314B and sold under this Agreement shall be sold by 1314B and will
be identified on invoices issued hereunder on line items separate from Coke sold
by Seller. Payment for the entirety of said invoices shall nevertheless be made
by Buyer to Seller, and Seller shall remain responsible for the product of 1314B
complying in all respects with the requirements of this Agreement, including,
without limitation, the Specifications.
2.3 Sampling, Analysis and Weighing.
(a) Seller shall sample the Coke produced by each production turn as per
its standard practice (four belt cuts per shift), perform chemical and physical
analyses to American Society of Testing and Measurement standards, and average
the analyses of such samples to determine a daily average analysis that shall be
deemed to be the analysis of Coke loaded into railcars for Buyer's account on
such day. The daily weighted average Coke analysis for each day in which Seller
is loading railcars for Buyer's account shall be transmitted electronically or
telefaxed to such Person as Buyer may from time to time direct as soon as
available, it being understood that such analysis will be available as soon as
possible, normally within 24 to 48 hours of the analyzed Coke's loading. Such
daily average analyses shall be rebuttably presumptively correct as to the
quality of Coke sold hereunder; however, if Buyer should encounter material
discrepancies between Seller's daily average analyses and Buyer's own quality
analyses, Buyer and Seller shall meet to discuss the reasons for such
discrepancies and any appropriate remedial action. If Buyer encounters any such
material discrepancy, then Buyer shall retain a sample of the Coke sampled
pursuant to this Section 2.3(a) for its own quality analysis, labeled so as to
identify the railcar which was sampled. In the event that Buyer and Seller
cannot agree as to the quality of the Coke, either party may, without
limitation, submit such dispute for resolution in accordance with Section 4.3.
(b) With respect to shipments of Coke, the weights used for billing
hereunder shall be the weights determined by the rail carrier transporting Coke
to Lorain Works, as adjusted by Seller for moisture to a [***] moisture standard
(per existing procedures). Such weights shall be rebuttably presumptively
correct as to the quantities of Coke sold hereunder; however, if Buyer should
encounter material discrepancies in weights measured by the carrier and weights
measured by Buyer, Buyer and Seller shall meet to discuss the reasons for such
discrepancies and whether remedial action is necessary. In the event that Buyer
and Seller cannot agree as to the weights, either party may, without limitation,
submit such dispute for resolution in accordance with Section 4.3.
(c) With respect to shipments of Coke, Buyer shall have the
responsibility for making sure the tare weight of each rail car has been
properly established. If a railcar has a tare weight of more than two years old,
Buyer shall promptly arrange for said car to be reweighed by the railroad on
certified scales so that a more accurate light weight can be established for
billing purposes hereunder. In the event that Buyer fails to take such action
and Seller discovers that a railcar has a tare weight of more than two years
old, Seller shall have the right (but not the obligation) to reject such rail
car. Costs of removing such rail car shall be for Buyer's account. If Seller
loads a rail car that has an inaccurate light weight and Seller learns of the
correct tare weight within ninety (90) days after loading the railcar, Seller
shall correct the billing invoice for such shipment to reflect the correct light
weight and corresponding charges associated with the actual tare weight of a
car. Any discrepancies
6
related to a railcar's correct light weight that are discovered later than 90
days after the railcar was loaded shall be deemed closed.
(d) The sampling, weighing and analysis of Alternate Coke shall be
handled in accordance with the applicable terms and conditions negotiated by
Seller pursuant to the applicable provisions of Sections 2.1(b)(i) and (ii).
2.4 Prices.
(a) From the Effective Date to and including December 31, 2002, Buyer
shall pay Seller a purchase price of $[***] per Ton of Coke delivered at
Clairton Works, subject to adjustment as set forth in Schedule A for variation
in quality. The pricing of Alternate Coke shall be handled in accordance with
the applicable terms and conditions negotiated by Seller pursuant to the
applicable provisions of Sections 2.1(b)(i) and (ii).
(b) At least 60 days before the commencement of each of the one-year
periods beginning January 1, 2003 and January 1, 2004, the parties hereto shall
revise the price of Coke to be equal to [***] to be effective for each such
annual period commencing January 1. If the parties are unable to agree on the
prevailing market price within 30 days of commencing their discussions, the
matter shall be submitted to the dispute resolution procedure set forth in
Section 4.3.
(c) At least 60 days before the commencement of each of the one-year
periods beginning January 1, 2003 and January 1, 2004, the parties hereto shall
renegotiate the price adjustment provisions applicable to Coke as set forth in
Schedule A based upon [***] to be effective for each such annual period
commencing January. If the parties are unable to agree upon the prevailing
market prices and conditions relating to price adjustments within 30 days of
commencing their discussions, the matter shall be submitted to the dispute
resolution procedure set forth in Section 4.3.
(d) If, during any calendar year, after the price of Coke has been
agreed to by the parties or established through dispute resolution procedures,
(i) a significant change (other than spot market or short term fluctuations)
occurs in the relationship between the number of domestic operating blast
furnaces and the number of domestic operating blast furnace coke production
plants, or a similar change occurs causing a structural change in the market,
and (ii) such change creates significant opportunities for Seller to market Coke
at higher prices or significant opportunities for Buyer to purchase domestically
produced blast furnace coke at lower prices, then either party may provide
written notice to the other party specifying the changed circumstances and
requesting that negotiations concerning the price of Coke hereunder be reopened.
Following receipt of any such notice of changed circumstances, the parties shall
negotiate in good faith to establish a revised Coke price which is reasonable
under the changed circumstances. If the parties are unable to agree upon any new
Coke price, the matter may be submitted to the dispute resolution procedure set
forth in Section 4.3. During any such negotiations or dispute resolution
procedures, the previously agreed to or established Coke price shall continue to
be charged by Seller and paid by Buyer; however, any new Coke price agreed to by
the parties or established through dispute resolution procedures shall be
effective on, and, if necessary, applied retroactively to the later of (x) the
date of the notice of changed circumstances, or (y) July 1 of the calendar year
in which such notice of changed circumstances is provided (including application
of the Late Payment Rate to any adjustment).
7
Notwithstanding anything set forth herein, neither Seller nor Buyer shall have
any right to submit a notice of changed circumstances pursuant to this Section
2.4(d) more often than once during the term of this Agreement.
(e) Notwithstanding subsections (a) and (b) of this Section 2.4, Seller
shall comply with Section 2.11.
(f) To the extent legally permissible, all present and future taxes
imposed by any federal, state, local or foreign authority which [***] may be
required to pay or collect, upon or with reference to the sale, purchase,
transportation, delivery, storage, use or consumption of Coke, including taxes
upon or measured by the receipts therefrom (except net income and equity
franchise taxes), shall be for account of [***].
2.5 Storage.
If, for reasons other than those excused due to events of Force Majeure
under Section 4.17, Buyer is unable to accept deliveries of Coke in accordance
with the schedule, or unexpectedly requires less Coke than as specified in
Buyer's Monthly Delivery Schedule or Amended Delivery Schedule under Section
2.2(b), Buyer may request in writing that Seller effectuate an alternate
disposition of the affected quantities of Coke, and if Seller consents, which
consent shall not be unreasonably withheld, such Coke shall be handled as set
forth below. Deliveries of Alternate Coke pursuant to Sections 2.1(b)(i) and
(ii) shall not be subject to the provisions of this Section 2.5.
(a) To the extent Seller is able to prior to the time such Coke needs to
be either loaded into railcars for shipment to the purchaser or alternatively
directed to stockpile in accordance with Section 2.5(b), below, Seller shall
assert commercially reasonable efforts to effectuate alternate sale(s) of such
Coke (which may, at Seller's sole discretion, include consumption in Seller's
own steelmaking operations). Any such sale shall be for Seller's account, and
Buyer shall be thereby relieved of its purchase obligation under this Agreement
to the extent of the quantities subject to such alternate sale(s); except that:
(i) if the price at which Seller effectuates the alternate sale
to a third party is less than the prevailing price of Coke
to Buyer hereunder, with respect to the quantity subject to
such sale, Buyer shall, in accordance with the procedures
set forth in Section 2.6 hereof, remit the difference in
price to Seller upon Seller's issuance of an invoice to
Buyer with respect to such sale; and
(ii) if the price at which Seller effectuates the alternate sale
to a third party is greater than the prevailing price of
Coke to Buyer hereunder, with respect to the quantity
subject to such sale, Seller shall remit the difference in
price to Buyer within 45 days of receiving payment for such
sale; and
(iii) if Seller consumes the Coke in its own steelmaking
operations, the price of such Coke shall be deemed the same
as the prevailing contract price applicable to Buyer
hereunder.
8
(b) If Seller is unable to effectuate alternate sale of such Coke in
accordance with clause (a) above, such quantities shall be delivered into a
separately established stockpile at Clairton Works that will contain only Coke
of Buyer. The stockpile shall be appropriately marked by Seller to reflect the
ownership thereof by Buyer. In the event that Buyer deems it advisable to file
Uniform Commercial Code financing statements for informational purposes
indicating the ownership interest of Buyer in the stockpiled Coke, Seller shall
upon request of Buyer execute such statements as are reasonably required by
Buyer. Buyer shall pay Seller for all Coke delivered into such stockpile, the
purchase price plus a stocking fee of $[***] per net ton, which fee covers
Seller's costs of stocking, de-stocking and screening the Coke and in-kind
replacement of screening losses at outturn. Said stocking fee shall be adjusted
from time to time by agreement of the parties, but no less often than annually,
to reflect Seller's actual costs of the aforementioned activities in stockpiling
Buyer's Coke. No other handling charges or ground rent associated with
stockpiling Buyer's Coke shall apply. Title and risk of loss or damage to such
Coke shall pass to Buyer upon delivery into stockpile, and Seller shall invoice
Buyer pursuant to the procedures set forth in Section 2.6 hereof the purchase
price plus the stocking fee upon delivery into stockpile. Upon delivery to the
stockpile, Buyer shall provide Seller a good faith forecast of when the Coke
will be withdrawn from the stockpile, which event shall be no later than nine
months after delivery to the stockpile. Upon the request of Buyer, stockpiled
Coke shall be de-stocked, screened and loaded into railcars for shipment to
Lorain Works. Seller shall be responsible to meet quality Specifications of
Schedule A on Coke delivered to Buyer from stockpile only at the time it is
delivered into stockpile, except with respect to size. Seller shall retain fines
from the screening at outturn and reimburse Buyer a like quantity of Coke that
meets the size Specification. Weight of Coke loaded from stockpile shall be
adjusted to account for moisture variation between Coke entering and being
recovered from stockpile. Unless Buyer directs otherwise, once such Coke is
directed to stockpile as herein provided, Seller, as Buyer's agent, shall assert
commercially reasonable efforts on a regular basis to re-sell such stockpiled
Coke on Buyer's behalf and for Buyer's account, at such price(s) and upon such
terms and conditions as approved by Buyer. Any of Buyer's Coke remaining in the
stockpile ninety (90) days after the expiration or termination of this Agreement
shall be deemed abandoned to Seller, to be disposed of at Seller's discretion
and with no further obligation owed by Seller to Buyer; provided, however, that
Seller provides Buyer no less than 45 days prior written notice before the
stockpiled material may be deemed abandoned hereunder. Provided Buyer has
commenced reasonable, good faith efforts to arrange for removal of the stockpile
before it can be deemed abandoned, Seller shall not obstruct or delay Buyer's
efforts to remove the stockpiled material before it is deemed abandoned under
this Section.
2.6 Invoices and Payment.
(a) Seller shall invoice Buyer (as below provided), and Buyer shall pay
Seller via wire transfer, the net amount due per such invoices in accordance
with the payment provisions set forth in this Section 2.6.
(b) Invoices shall be issued upon delivery of the coke in accordance
with Section 2.7(a) and the price shall the price as in effect at the time of
such delivery in accordance with Section 2.4.
(c) Subject to Section 2.12 below, payment shall be made for coke
invoiced during each Settlement Period (as hereinafter defined) on the Payment
Date (as hereinafter defined). A
9
"Settlement Period" shall be the period falling from [***] (the "First
Settlement Period") and the period from [***] ("the "Second Settlement Period").
On the day following each Settlement Period (i.e., [***]) (the "Settlement
Date"), Seller shall provide to Buyer a summary of all payments to be made on
the Payment Date consistent with the invoices issued in accordance with Section
2.5(b). The Payment Date for the First Settlement Period shall be on the
immediately succeeding [***] and the Payment date for the Second Settlement
Period shall be on the immediately succeeding [***]. In the event a Payment Date
falls on a holiday, the Payment Date shall be the day immediately following. Any
deliveries of coke (including without limitation Coke) for which an invoice is
not available prior to the otherwise applicable Settlement Date (e.g., due to
delays in the normal invoice cycle) and any corrected invoices will be settled
on the next Settlement Date.
(d) Each partial delivery or installment of coke shall be deemed to be
sold under a separate agreement, and no Default by Seller of or with respect to
any partial delivery or installment shall entitle Buyer to treat this Agreement
as breached or repudiated in regard to any balance or installment with respect
to which there is no Default or breach.
(e) Buyer shall make payment in full of the amount due under each
invoice in strict compliance with the payment terms as set forth in this
Agreement without any deduction for any discount or credits, contra or setoffs
of any kind or amount whatsoever unless expressly authorized in writing by
Seller prior to the Settlement Date relating to such invoice(s). Any delinquent
invoice(s) not paid when due shall bear interest on the unpaid amount at the
Late Payment Rate specified in this Agreement.
(f) (i) Buyer agrees to furnish Seller's Treasury Department on an
ongoing basis (1) unaudited quarterly financial statements of its operations,
including income statements, balance sheets, cash flow statements and borrowing
bases, all in substantially the form presented in its Business Plan, (2) audited
year-end financial statements and (3) such other financial data or information
as may be required to reasonably assure Seller of Buyer's continuing ability to
perform this Agreement and comply fully with its payment obligations at all
times as to both existing and future product shipments hereunder. For purposes
of this subsection (f), Seller confirms its obligations under that certain
Confidentiality Agreement dated as of August 16, 2002 by and between Seller and
Buyer. Any failure of Buyer to timely provide any of the documents or
information required by this paragraph shall be deemed a material breach of this
Agreement that entitles Seller to invoke any of the remedies available to Seller
under this Agreement and/or at law or in equity.
(ii) Beginning on and continuing for each quarterly period after
January 1, 2003, Republic agrees to submit to Seller on a quarterly basis the
financial information noted in subsection (f) (i) above. Upon receipt of such
information, Seller agrees to make a comprehensive review of all such financial
information submitted to determine if, in Seller's sole judgment, there is a
basis to modify the [***] credit, payment and settlement terms as set forth in
subsection 2.6(c) above. Seller agrees to make this financial review in good
faith; provided, however, there is no assurance or obligation that such a review
will result in a modification of any such credit/payment/settlement terms. In
the event the parties agree to a modification to the credit/payment/settlement,
then the relevant, parallel provisions of the Pellet Supply Agreement, this Coke
Supply Agreement, and the Rounds Supply Agreement shall be amended accordingly
to reflect the agreed to modifications. The parties agree that this Section
2.6(f)(i) and (ii), or any dispute arising hereunder, shall be excluded
10
from Section 4.3 hereof.
(g) In the event, in Seller's sole judgment, of any material adverse
change in the financial condition of Buyer, or deterioration in its liquidity
and/or then current ability to discharge its existing or future payment
obligations hereunder (a "Material Adverse Change"), Seller shall have the right
to require Buyer to provide additional security for its obligations hereunder.
The form, nature and sufficiency of such additional security shall be in
Seller's sole and absolute discretion. If Buyer does not provide such additional
security within 10 days of written notice from Seller that a Material Adverse
Change has occurred and that additional security is required, Seller may (i)
suspend further shipments of coke (including without limitation Coke) until such
additional security is provided, (ii) require Buyer to pay for future deliveries
of coke (including without limitation Coke) on a cash-on-delivery basis, or
(iii) immediately terminate this Agreement. Seller agrees that minor deviations
from the Business Plan will not be deemed to be a Material Adverse Change
hereunder unless such minor deviations continue for three or more consecutive
calendar months.
2.7 Delivery, Title and Risk of Loss.
(a) Delivery of Coke to Buyer shall take place F.O.B. railcar at
Seller's Clairton Works, or in such other manner or at such other place as shall
be agreed upon by the parties in writing prior to the shipment of Coke. Except
as otherwise provided in Section 2.5 with respect to Coke subject to alternate
disposition, title and risk of loss and damage to the Coke shall pass from
Seller to Buyer when the Coke is delivered in accordance with this Section 2.7.
Unless otherwise agreed to by Buyer, Seller shall use its best efforts to
schedule such deliveries of Coke in amounts and at intervals commensurate with
Lorain Works' rate of consumption. Delivery and the passing of risk of loss for
Alternate Coke shall be handled in accordance with the applicable terms and
conditions negotiated by Seller pursuant to the applicable provisions of
Sections 2.1(b)(i) and (ii).
(b) Buyer shall arrange [***] all transportation hereunder of Coke from
Clairton Works to Lorain Works.
2.8 Terms and Conditions of Sale.
(a) In the event that any shipment of coke does not conform to the
applicable specifications, the party discovering the nonconformity shall provide
prompt written notice to the other party (and in any event, no later 14 days
after the arrival of the train) of the nonconformity, which notice shall include
copies of all analyses and other documentation describing and quantifying the
nonconformity, and the parties shall promptly undertake negotiations in good
faith to effectuate an appropriate disposition of the nonconforming material,
which may include an equitable price adjustment. In the event that the parties
are unable to agree to an appropriate disposition of the nonconforming material
within fourteen (14) days, either party may submit such dispute for resolution
in accordance with Section 4.3 hereof.
(b) In the event of a conflict between the terms and conditions of this
Agreement and the terms or conditions contained in any notice, shipment,
specifications, purchase order, sales order, acknowledgement or other document
which may be used in connection with the transactions contemplated by this
Agreement, the terms and conditions of this Agreement shall supersede and
11
govern, unless expressly waived in accordance with Section 4.16.
2.9 Warranty.
(a) Seller warrants that all Coke sold by Seller hereunder will conform
to the Specifications. OTHER THAN AS AFORESAID, SELLER MAKES NO WARRANTY OF ANY
KIND, EXPRESS OR IMPLIED, AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY OR
FITNESS FOR A PARTICULAR PURPOSE OR OTHERWISE ARE HEREBY EXPRESSLY DISCLAIMED BY
SELLER AND EXCLUDED HEREUNDER. Seller shall not be liable for any incidental or
consequential damages, losses or expenses based upon, resulting from, or arising
out of any use of, or the inability to use, the coke for any purpose whatsoever.
(b) Without limiting the generality of Section 2.9(a), Seller makes no
warranty with respect to and shall have no liability to Buyer in any case where
Coke satisfies the Specifications. If Coke does not satisfy the Specifications
but reasonably can be used by Buyer, then price adjustments shall be made in
accordance with Schedule A. [***]
(c) With respect to Alternate Coke, Seller does not extend to Buyer any
warranties, express or implied, except any warranties provided by the supplier
of such coke as Seller may assign to Buyer.
2.10 Freeze-Conditioning.
At Buyer's request, Seller shall apply a freeze-conditioning product in
a satisfactory and xxxxxxx-like manner to coke shipped hereunder. Buyer shall
notify Seller in writing of Buyer's desired start and stop dates concerning
freeze-conditioning of coke in the upcoming winter. Invoicing and payment of the
costs incurred by Seller in freeze-conditioning coke ordered hereunder shall be
made in accordance with Section 2.6 hereof; provided, however, that Seller
reserves the right to separately invoice for the freeze-conditioning on a
monthly basis and the invoiced amount shall be paid by Buyer on the next Payment
Date after issuance of such invoice.
2.11 Most Favored Customer.
If, during the term of this Agreement, Seller or 1314B sells and/or
agrees to sell Coke of similar or better specifications in similar quantities to
any third party, under substantially similar circumstances and conditions, at
prices and/or upon terms and/or conditions which are more favorable than those
effective pursuant to this Agreement, then Seller shall immediately notify Buyer
and offer to extend to Buyer under this Agreement such more favorable prices,
terms and/or conditions.
2.12 Cross-Default; Setoff; Right to Substitute New Terms
(a) Any Default by Republic under the Pellet Supply Agreement, the
Rounds Agreement or the Services Agreement shall be deemed a Default of Republic
under this Agreement.
12
(b) Only in the event of a payment Default, which is defined as any
failure by Republic at any time to make a payment in full when due under Section
2.6 of this Agreement, Section 2.5 of the Pellet Supply Agreement and/or Section
3.2 of the Services Agreement (for any reason other than exercising its rights
upon a payment Default by LPM or USS), LPM and/or USS may (i) defer payment of
any amounts due Republic under the Rounds Supply Agreement and/or the Services
Agreement until such time as any and all delinquent amounts due and owing USS
and/or LPM under this Agreement, the Pellet Supply Agreement and/or the Services
Agreement (the "Delinquent Amount") are paid, and/or (ii) deliver to Republic a
`Notice of Intent to Effect Set-off.' Provided that Republic has not remitted to
USS the Delinquent Amount within 5 days of Republic's receipt of the Notice of
Intent to Effect Set-off, LPM and/or USS may, on the 5th day following the
delivery of such Notice of Intent to Effect Set-off, set-off the Delinquent
Amount against the amounts owed by LPM and/or USS to Republic under the Rounds
Supply Agreement and/or the Services Agreement as of the date of such Notice. If
the Delinquent Amount is not paid in full within 10 days following the delivery
of such Notice of Intent to Effect Set-off, USS shall have the right to suspend
further shipments of Pellets to Buyer until the Delinquent Amount (including any
other delinquent amounts owed to USS and/or LPM under this Agreement, the Pellet
Supply Agreement and/or the Services Agreement that accrue after issuance of the
Notice) are paid in full. Interest on the Delinquent Amount shall accrue at the
Late Payment Rate specified in this Agreement.
(c) In the event that the aggregate amounts due USS in connection with
Republic's purchases of coke (including without limitation Coke) hereunder and
Republic's purchases of Pellets under the Pellet Supply Agreement at any time
exceed by $1,000,000 or more the amount due Republic in connection with USS's
purchases of Rounds under the Rounds Supply Agreement (the "Excess"), Republic
shall remit to USS an amount equal to the Excess within three days of the
Settlement Date immediately succeeding the date that such Excess occurs. If the
Excess is not paid in full by such date, USS shall have the right to withhold
and/or setoff against the Excess any amounts due from USS to Republic under the
Services Agreement. If the Excess is not paid in full within 10 days of such
Settlement Date, USS shall have the right to suspend further shipments of coke
(including without limitation Coke) to Buyer until the Excess is paid in full;
provided, that Seller agrees not to suspend such shipments during such time so
long as payment on deliveries of coke (including without limitation Coke) is
made by Buyer on a cash-on-delivery basis. Interest on the Excess shall accrue
at the Late Payment Rate specified in this Agreement.
(d) Notwithstanding any provision herein to the contrary (including
without limitation the provisions of Section 2.6 hereof), in the event that (i)
LPM ceases operations at the Pipemill either on a temporary or permanent basis,
(ii) USS sells or otherwise transfers (or enters into an agreement to sell or
transfer) ownership of the Pipemill assets or operations to a third party, or
(iii) USS's purchases of Rounds under the Rounds Supply Agreement and/or
utilities under the Services Agreement are reduced for any reason such that the
Excess exceeds $1,000,000 in three consecutive Settlement Periods, then USS
shall have the right to substitute new or revised payment terms and conditions
for the payment terms which are then in effect hereunder such that payments due
by Buyer to USS hereunder remain secured at all times.
(e) Republic hereby agrees to continue to perform fully its obligations
hereunder and under the Rounds Supply Agreement, the Pellet Supply Agreement and
the Services Agreement notwithstanding the exercise by USS of any of its rights
hereunder or under Section 2.6.
13
ARTICLE III - TERM AND TERMINATION
3.1 Term.
This Agreement shall be effective as of the date set forth in the
preamble hereto and shall remain in full force and effect through [***]:
(i) By written mutual consent of the parties at any time;
(ii) By either party if USS permanently ceases production of
Coke at Clairton Works or Republic ceases to operate the
Lorain Works; provided, that Republic or USS, as the case
may be, will give the other immediate notice if it intends
to cease, or anticipates cessation of, such production or
operations;
(iii) By either party if the other party is in Default under any
of the provisions of this Agreement (except as otherwise
expressly provided in items (iv), (v) and (vi) below) and
fails to correct such Default within 60 days of written
notice of such Default;
(iv) By USS pursuant to Section 2.6(f) hereof in the case of a
Material Adverse Change;
(v) By USS if Republic, at any time, fails (A) to make any
payment when due under this Agreement, (B) to comply with
the applicable credit and/or payment terms (as established
or adjusted hereunder) or (C) to provide the financial
statements and information pursuant to Section 2.6(g)
hereof; or
(vi) By Republic, upon 90 days' prior written notice, if LPM
terminates the Rounds Supply Agreement for any reason other
than Default of Republic thereunder.
In addition to the rights of USS to terminate this Agreement pursuant to
subsection (v) above, Seller shall have the right, upon the occurrence of any of
the events set forth therein, (X) to suspend production and/or refuse to make
further shipments or deliveries of coke (including without limitation Coke) or
otherwise suspend its further performance under this Agreement or (Y) to declare
immediately due and payable all then outstanding and unpaid invoices covering
coke (including without limitation Coke) previously delivered hereunder.
As used herein, "Default" means failure of either party to perform, keep or
observe any material obligation, provision, warranty or condition contained
herein, unless such performance is otherwise excused by the terms of this
Agreement.
3.2 Termination.
Seller and Buyer agree that upon and after termination of this
Agreement:
14
(i) All Monthly Delivery Schedules or Amended Monthly Delivery
Schedules given that are binding in accordance with the
terms hereof, previously accepted by Seller hereunder, and
Buyer's obligation to pay for such deliveries made, shall
continue in full force and effect.
(ii) Buyer shall remain obligated to make any payment due to
Seller hereunder prior to termination.
(iii) Liabilities of any party arising from any act, Default or
occurrence prior to termination shall remain with such
party.
(iv) The parties' rights and obligations under Sections 2.6,
2.9, 2.10, 4.1, 4.2, 4.3, 4.4, 4.5, 4.6, 4.7, 4.8, 4.14,
4.17 and this Article III shall survive the termination of
this Agreement.
ARTICLE IV - MISCELLANEOUS
4.1 Intent of Agreement.
The parties hereto intend that they shall mutually benefit from the
terms, conditions and provisions of this Agreement and that no party shall be
either unreasonably enriched or unreasonably harmed by any implementation and/or
interpretation of said terms, conditions and provisions. This Agreement shall be
administered and interpreted in order to fulfill the intent stated in this
Section 4.1. Any arbitrator(s) considering disputes pursuant to Section 4.3
hereof shall attempt to render a decision which fulfills the intent stated in
this Section 4.1.
4.2 Payment Errors.
(a) If either Buyer or Seller believes that there has been an error in
an amount paid or the timing of any payment hereunder, then such party shall
notify the other party of such alleged error and shall provide such written
evidence of the error as is available at the time of such notice. Each party
shall provide the other with sufficient records relating to the matter so as to
permit the parties to attempt to resolve the inconsistency.
(b) Following the determination of whether an error occurred, any
overpayment or underpayment found shall be remedied by the party that benefited
from such error.
(c) Notwithstanding the foregoing, neither party may question the
accuracy, correctness, timing or amount of any payment under this Agreement
unless it notifies the other party of its disagreement within the 12 months
immediately following the date on which such payment was due.
4.3 Dispute Resolution.
At any time and from time to time, if the parties are unable to resolve
a dispute concerning Buyer's or Seller's performance or nonperformance of their
obligations under this Agreement
15
(excepting any disputes excluded herefrom), Buyer or Seller, as the case may be,
shall provide written notice to the other of such dispute as provided in Section
4.9 hereof. It is mutually agreed that any Default by Buyer in its payment
obligations hereunder (or any dispute relating thereto), and/or any dispute
relating to USS's exercise of its rights under Section 2.11 hereof shall not be
subject to (and are excluded from) the provisions of this Section 4.3; it being
agreed that any such excluded disputes (as aforesaid) shall be pursued and
adjudicated by the parties in a court of competent jurisdiction. Any dispute
covered by this Section 4.3 shall be resolved by using the procedures for
Mediation and Arbitration set forth below:
(a) Mediation. At any time after a party has provided a written notice
of dispute to the other party, but prior to the time that either party commences
arbitration pursuant to Article 4.3(b) herein, the parties may agree to submit
the dispute to non-binding mediation under terms and conditions satisfactory to
both parties.
(b) Arbitration. At any time after a party has provided a written notice
of dispute to the other party, including at any time during any non-binding
mediation agreed to by the parties, either party may submit the matter in
dispute to a pre-designated arbitrator or, in the event such arbitrator has not
been selected or is unavailable, to a three member arbitral panel to which each
Party shall appoint one member and those two members shall appoint a third
member. Such arbitration shall be governed by the CPR Rules for Non-Administered
Arbitration of Business Disputes. Pending the issuance of an arbitral decision,
the Parties shall continue their full and normal operations and obligations in
accordance with this Agreement. All arbitral awards for the payment of money
and/or for any retroactive adjustment of any interim prices paid hereunder shall
accrue interest at the Late Payment Rate starting from the date on which any
amount is due or the date on which the interim payment was due.
(c) Consent to Enforceability.Each of the Parties consents and agrees
that any arbitral award rendered pursuant to Subsection 4.3(b) shall be final,
non-appealable and binding against the Parties and their respective assets, and
may be enforced by any court of competent jurisdiction.
4.4 Records.
Seller shall maintain such detailed and accurate records relating to the
sales of coke, adjustment of railcar light weights and freeze-conditioning
hereunder as shall be necessary for the calculation of amounts payable under
Sections 2.6 and 2.10. At all times on or before the date that is 12 months
after the date of termination of this Agreement, representatives of Buyer and
its auditors shall be entitled, at Buyer's expense, to inspect and audit such
records and accounts and to consult with Seller's personnel in a reasonable,
non-intrusive manner upon reasonable notice and during business hours. Seller
shall have the right to require that any audit be conducted by a mutually
agreeable independent auditor and that the details of the information examined
in such audit be kept confidential from Buyer, except to the extent necessary to
resolve any controversy that is pursued in good faith. Such audit expense shall
be borne by Buyer.
4.5 Confidentiality.
(a) Buyer and Seller acknowledge that all information about the
businesses, properties,
16
finances, prospects, marketing, processes, products, methods, computer programs,
procedures, machinery, apparatus or trade secrets owned, or held or used
(including under license from or agreement with third parties) by the other that
is disclosed to Buyer or Seller, as the case may be, during the course of
performing its obligations under this Agreement is the property of, and is
proprietary and confidential to the disclosing party (the "Proprietary
Information").
(b) Buyer and Seller agree that they shall use reasonable efforts not to
make any disclosure of the other's Proprietary Information (including methods or
concepts utilized therein other than those commonly known to professionals in
the field) to any person other than officers, employees and agents of and
consultants to Buyer or Seller to whom such disclosure is necessary or
convenient for performance of its obligations hereunder and except as may be
required by applicable legal requirements or by a court of competent
jurisdiction. Buyer and Seller shall appropriately notify each officer,
employee, agent and consultant to whom any such disclosure of the other's
Proprietary Information is made that such disclosure is made in confidence and
shall be kept in confidence by such Person.
(c) Each of Buyer and Seller agrees to use diligent efforts in
accordance with customary and reasonable commercial practice and at least with
the same degree of skill and care that it would manifest in protection of its
own proprietary and confidential property to protect the other's Proprietary
Information.
(d) Each of Buyer and Seller agrees to notify the other immediately in
the event that it becomes aware of the unauthorized possession or use of the
other's Proprietary Information (or any part thereof) by any third Person,
including any of its officers, employees, agents or consultants. Each of Buyer
and Seller further agrees to cooperate with the other in connection with its
efforts to terminate or prevent such unauthorized possession or use of such
Proprietary Information. Seller or Buyer, as the case may be, shall pay the
nonproprietary party's reasonable out-of-pocket expenses in so cooperating,
unless the unauthorized possession or use of the Proprietary Information
resulted from the fault or negligence of such nonproprietary party.
(e) Notwithstanding any other provision of this Agreement, the
obligation of Buyer and Seller to maintain the confidentiality of the other's
Proprietary Information shall not apply to any portion of such Proprietary
Information that:
(i) was in the public domain at the time of Buyer's or Seller's
disclosure to the other;
(ii) enters the public domain through no fault of the
nonproprietary party;
(iii) was communicated to the nonproprietary party by a third
party free of any obligation of confidence known to the
nonproprietary party; or
(iv) was developed by officers, employees or agents of or
consultants to the nonproprietary party independently of
and without reference to the Proprietary Information;
17
provided, however, that Proprietary Information which is specific shall not be
considered to be within the exception provided by this Section 4.5(e) merely
because it is embraced by general information in the public domain; provided,
further, that any combination of features within the Proprietary Information
shall not be deemed within such exception merely because individual features are
within the public domain, but only if the combination itself is within the
public domain.
4.6 Severability.
In case any one or more of the provisions contained in this Agreement is
adjudged to be invalid, illegal or unenforceable in any respect, the validity,
legality and enforceability of the remaining provisions contained herein shall
not in any way be affected or impaired thereby, except to the extent necessary
to avoid an unjust or inequitable result.
4.7 Rights and Remedies; No Consequential Damages.
The rights and remedies granted under this Agreement shall not be
exclusive but shall be in addition to all other rights and remedies available at
law or in equity, including, but not limited to, claims for breach of contract,
except that Buyer and Seller agree that in no event shall either party be liable
to the other for any indirect, special or consequential damages or lost profits
as a result of a breach of any provision of this Agreement.
4.8 Costs and Expenses.
Each of Buyer and Seller shall bear its own expenses incurred in
connection with the negotiation, preparation and execution of this Agreement.
4.9 Notices.
All notices or other communications required or permitted by this
Agreement shall be effective upon receipt and shall be in writing and (i)
personally delivered, or (ii) mailed by registered or certified mail, return
receipt requested, or (iii) sent by overnight delivery service which provides
proof of delivery, or (iv) sent by telecopy, with a duplicate copy sent via
first class mail, postage prepaid, addressed as follows:
If to Seller:
UNITED STATES STEEL CORPORATION
000 Xxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxxxxxx 00000-0000
Attention: Director - Raw Materials P. P. D. & S.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to Buyer:
REPUBLIC ENGINEERED PRODUCTS, LLC
18
0000 Xxxxxxx Xxxxxxx
Xxxxx, Xxxx 00000-0000
Attention: Vice President of Purchasing
Telephone: (000) 000-0000
Facsimile: (330-670-7006)
or to such other address as hereafter shall be furnished as provided in this
Section 4.9 by either of the parties hereto to the other.
4.10 Assignment.
(a) Except as provided in Section 4.10(c), neither party can without the
prior written consent of the other assign any of its rights or benefits or
delegate any of its duties or obligations under this Agreement, and any
attempted assignment or delegation which is not permitted under Section 4.10(c)
shall be null, void and without effect; provided, however, that Buyer may grant
a security interest in Buyer's rights, benefits, duties and obligations under
this Agreement without the consent of Seller. Buyer shall provide Seller written
notice of the granting or revision of any such security interest.
(b) The rights, benefits, duties and obligations of each party hereto
shall inure to the benefit of, and be binding upon, any successors, assigns or
delegates permitted under Section 4.10(c).
(c) Either party hereto may delegate any of its duties or obligations
under this Agreement to any person, but except as otherwise provided in this
Agreement such party shall remain liable for the full performance of such duties
and obligations. Either party hereto may assign or delegate any of its rights,
benefits, duties or obligations hereunder (i) to any person if it has received
the prior written consent of the other party, which consent shall not be
unreasonably withheld, conditioned or delayed, (ii) to its legal successor if it
merges (whether or not it is the surviving corporation) or consolidates with one
or more other corporations or (iii) to any person to whom either party has made
any sale, lease, transfer or other disposition of (A) all or substantially all
of its assets, or (B) the consuming facility in the case of Buyer or the
producing facility in the case of Seller; provided, however, that neither party
may make an assignment or delegation described in clauses (ii) and (iii) above
unless there are delivered to the other party such written assumptions,
affirmations and/or legal opinions as such other party may reasonably request to
preserve its rights and remedies under this Agreement.
4.11 Counterparts.
This Agreement may be executed in any number of counterparts, each of
which shall be deemed an original, but all of which together shall constitute a
single instrument.
4.12 Entire Agreement.
This Agreement (including the Schedules hereto) sets forth the entire
understanding and agreement between the parties as to the matters covered herein
and supersedes and replaces any prior understanding, agreement or statement of
intent, in each case written or oral.
19
4.13 Headings.
The headings contained in this Agreement are for convenience of
reference only and do not modify or affect in any way the meaning or
interpretation of this Agreement.
4.14 Governing Law.
This Agreement shall be construed and enforced in accordance with, and
governed by, the internal laws of the State of Ohio.
4.15 No Third Party Rights.
This Agreement is intended to be solely for the benefit of the parties
hereto and is not intended to confer any benefits upon, or create any rights in
favor of, any Person other than the parties hereto, except as expressly provided
to the contrary elsewhere in this Agreement.
4.16 Waiver and Amendments.
No waiver shall be deemed to have been made by either party of any of
its rights under this Agreement unless the same shall be in a writing that
expressly refers to this Section 4.16 and is signed on its behalf by its
authorized officer. Any such waiver shall constitute a waiver only with respect
to the specific matter described in such writing and shall in no way impair the
rights of the party granting such waiver in any other respect or at any other
time. This Agreement shall not be amended or modified except by an instrument in
writing signed by the party against whom enforcement is sought.
4.17 Force Majeure.
(a) Except for obligations to make payments hereunder, neither party
hereto shall be liable for any failure to perform the terms of the Agreement
when such failure is due to Force Majeure. "Force Majeure" means acts of God,
strikes, lockouts, or other labor disputes or disturbances, civil disturbances,
arrests and restraint from rulers or people, interruptions or terminations by or
as a result of government or court action or orders, or present and future valid
orders of any regulatory body having jurisdiction, acts of the public enemy,
wars, riots, blockades, insurrections, inability to secure or delay in securing
labor or materials by reason of allocations promulgated by authorized
governmental agencies, epidemics, landslides, lightning, earthquakes, fire,
storm, floods, washouts, explosions, breakdowns or accidents, inability to
obtain transportation services, or any other cause, whether of the kind
enumerated or otherwise, not reasonably within the control of the party claiming
Force Majeure. The Force Majeure shall, so far as possible, be remedied with all
reasonable dispatch. The settlement of strikes or lockouts or other labor
disputes or disturbances shall be entirely within the discretion of the party
having the difficulty, and the above requirement that any Force Majeure shall be
remedied with all reasonable dispatch shall not require the settlement of
strikes, lockouts, or labor disputes or disturbances by acceding to the demands
of any opposing party therein when such
20
course is inadvisable in the discretion of the party having the difficulty.
(b) The party whose performance is affected or who has reason to believe
such performance may be affected by reason of Force Majeure shall as promptly as
possible give notice thereof to the other party and shall confirm such notice in
writing if requested, giving the particulars of the event, including supporting
documentation if available. The party so affected shall also take reasonable
steps to resume performance hereunder with the least possible delay.
[Signatures on following page]
21
IN WITNESS WHEREOF, this Agreement has been executed and delivered to be
effective as of the date first above written.
UNITED STATES STEEL CORPORATION
By: /s/ X.X. Xxxxxxx
Name: X. X. Xxxxxxx
----------------------------------------------
Title: Director, Raw Materials P.P.D.& S.
----------------------------------------------
REPUBLIC ENGINEERED PRODUCTS, LLC
By: /s/ X.X. Xxxxx
Name: X. X. Xxxxx
----------------------------------------------
Title: V.P., Integrated Supply Chain Management
----------------------------------------------
22
SCHEDULE A
2002 CLAIRTON COKE QUALITY SPECIFICATIONS
REPUBLIC ENGINEERED PRODUCTS, LLC
---------------------------------- ----------- ---------------- ------------------- --------------------------- ------------------
Parameter Typical Penalty Rejection Penalty Frequency
Range/Limit
---------------------------------- ----------- ---------------- ------------------- --------------------------- ------------------
Stability, % 60.5 58.0 - 57.0 less than 57.0 [***] Each lot
---------------------------------- ----------- ---------------- ------------------- --------------------------- ------------------
Moisture, % 2.5 2.5 - 10.0 greater than 10.0 [***] Each lot
---------------------------------- ----------- ---------------- ------------------- --------------------------- ------------------
Ash, % (D.B.) 8.1 8.8 - 9.0 greater than 9.0 [***] Each lot
---------------------------------- ----------- ---------------- ------------------- --------------------------- ------------------
Sulfur, % (D.B.) 0.80 0.90 - 0.94 greater than 0.94 [***] Each lot
---------------------------------- ----------- ---------------- ------------------- --------------------------- ------------------
Volatile Matter, % (D.B.) 0.80 1.00 - 1.20 greater than 1.20 [***] Each lot
---------------------------------- ----------- ---------------- ------------------- --------------------------- ------------------
Phosphorous, % P2O5 in coke ash 0.024 N/a n/a [***] Monthly
---------------------------------- ----------- ---------------- ------------------- --------------------------- ------------------
Potassium, % K2O in coke ash 0.151 greater than 0.170 n/a [***] Monthly
---------------------------------- ----------- ---------------- ------------------- --------------------------- ------------------
CSR 58.0 N/a n/a [***] Monthly
---------------------------------- ----------- ---------------- ------------------- --------------------------- ------------------
+ 4 inch 0 N/a greater than 4.0 [***] "
---------------------------------- ----------- ---------------- ------------------- --------------------------- ------------------
+ 3 inch cumulative 10 N/a n/a [***] "
---------------------------------- ----------- ---------------- ------------------- --------------------------- ------------------
+2 inch cumulative 52 N/a less than 45.0 [***] "
---------------------------------- ----------- ---------------- ------------------- --------------------------- ------------------
+1 inch cumulative 94 N/a n/a [***] "
---------------------------------- ----------- ---------------- ------------------- --------------------------- ------------------
+ 3/4inch cumulative 97.5 96.0 - 94.0 less than 94.0 [***] "
---------------------------------- ----------- ---------------- ------------------- --------------------------- ------------------
Comments:
o "DB" designates "Dry Basis" as defined by ASTM. All other analyses reported
according to ASTM Standards and / or guidelines.
o The term "Each Lot" refers to daily shipments.
Accepted by:
Republic Engineered Products, LLC United States Steel Corporation
Name: Name:
------------------------------------ --------------------------------------
Title: V.P., Integrated Supply Chain Management Title: Director, Raw Materials
Date: Date:
------------------------------------------- --------------------------------------
