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PRICING AGREEMENT
THIS PRICING AGREEMENT ("Agreement"), dated this 11 day of
April, 1996, is entered into by and between XXXXX METALS, INC., an Arizona
corporation ("Seller"), and EMCO RECYCLING CORP., an Arizona corporation
("Buyer").
RECITALS
WHEREAS, Seller sells to Buyer and Buyer buys from Seller certain
products.
WHEREAS, Seller and Buyer previously entered into that certain Pricing
Agreement, dated July 15, 1995 ("Terminated Pricing Agreement"), by which Buyer
and Seller agreed on prices of certain products, and Seller agreed to sell
exclusively to Buyer for the term of the Terminated Pricing Agreement, subject
to the terms and conditions set forth therein.
WHEREAS, Buyer and Seller wish to enter into this Agreement to
terminate the Pricing Agreement, and to agree on prices of certain products, and
agree that Seller shall sell exclusively to Buyer for the term of this
Agreement, subject to the terms and conditions set forth herein.
AGREEMENT
NOW THEREFORE, in consideration of the mutual covenants
contained herein, and other good and valuable consideration, Buyer and Seller
agree as follows:
1. Termination. The Terminated Pricing Agreement is hereby terminated and shall
have no further force and effect.
2. Price. Seller agrees to sell to Buyer, and Buyer agrees to buy from Seller,
certain commodities for the prices ("Price" or "Prices") listed on Exhibit A
attached to this Agreement and incorporated by reference herein.
3. Price by Mutual Agreement of the Parties. The parties may mutually agree on
Prices different than those on Exhibit A for a specific transaction. Such
agreement shall constitute a one-time waiver of the "Price" term of this
Agreement only, such that all other terms of the Agreement shall remain binding
and in effect, and such mutual agreement by the parties shall in no way
constitute a continuing waiver of any term of this Agreement.
4. Price Revision. Every ninety (90) days during the Term of this Agreement,
Buyer and Seller shall meet and shall agree upon a revised Exhibit A which shall
revise Prices in such amounts as shall result in commercially reasonable profits
for Buyer. Seller shall have five (5) days to respond to such suggested
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Prices. If Seller rejects or fails to respond to the new Prices, the Prices as
of the date of execution of this Agreement shall be the Prices and such Prices
shall become Exhibit A to this Agreement. If Seller accepts the suggested
Exhibit A, the suggested Exhibit A shall be substituted for Exhibit A to this
Agreement.
5. Payment. Buyer agrees to pay Seller weekly the Price of commodities received
directly into Buyer's facility from Seller, with payment made every Friday for
commodities received by Buyer through the previous Thursday. Buyer agrees to pay
Seller the Price of commodities shipped by Seller directly to Buyer's customer
within twenty-four (24) hours of receipt of payment from Buyer's customer. If
payment is not received within eight (8) calendar days of the date scheduled for
payment as set forth above, (1) the amount of such delinquent payment shall bear
interest from such day until paid at the rate of one percent (1%) per day, and
(2) Seller shall have the right to require a meeting of Xxxxxx Xxxxxxxxxx,
Xxxxxx Xxxxxxxxx, Xxxxx XxXxxxx and Xxxx Xxxxxxx (or any person who succeeds to
the positions of Seller and Buyer now held by these individuals) to occur within
three (3) business days to resolve the issue of nonpayment.
6. Term. Unless sooner terminated in accordance herewith, the term of this
Agreement shall be for a period of five (5) years from the date first above
written ("Term"); provided, however, that Buyer shall have the option,
exercisable unilaterally by Buyer in its discretion, to extend this Agreement
for a period for one (1) additional five (5) year term, by giving written notice
thereof to Seller within ninety (90) days prior to the end of the Term.
7. Non-Interference with Customers. During the Term of this Agreement, Buyer and
Seller agree not to solicit, discuss with, negotiate with, attempt to influence,
or interfere with, in any way, directly or indirectly, any person, firm or
business, that, in any way, during the Term of this Agreement or at the date of
termination of this Agreement, is a customer or client of the other party
regarding any aspect of the other party's relationship with the customer,
including, but not limited to, method or timing of delivery of the commodities
or pricing between the customer and the other party. Buyer and Seller further
agree not to become a supplier, client, or seller to, or in any manner, directly
or indirectly, sell any commodities to, any person, firm or business that, in
any way, during the Term of this Agreement or at the date of termination, is a
customer or client of the other party or its affiliates.
8. Exclusive Agreement. Seller agrees that Seller shall not sell any
commodities, whether listed on Exhibit A or not, to any person, firm or business
other than Buyer for the term of this Agreement ("Exclusivity Provision"). Buyer
shall pay Seller the amount of Two Thousand Five Hundred and No/100 Dollars
($2,500.00) per month as consideration for the Exclusivity Provision. Buyer
agrees to exert Buyer's best efforts to
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promote the sale of the commodities for the term of this Agreement.
Notwithstanding the foregoing, Seller may sell new and used steel products to
any person, firm or business other than Buyer that Seller deems appropriate.
9. Seller Representations and Warranties. Seller warrants and represents that
Seller shall comply with all applicable international, federal, state and local
laws, ordinances, regulations and treaties in connection with its sale of the
commodities. Seller warrants and represents that Seller has the authority and
capacity to execute this Agreement and warrants that such execution has been
duly approved by its board of directors.
10. Buyer Representations and Warranties. Buyer warrants and represents that
Buyer has the authority and capacity to execute this Agreement and warrants that
such execution has been duly approved by its board of directors.
11. Seller Events of Default. Upon the occurrence of a Seller Event of Default,
Buyer may, at its sole discretion: (i) cancel or reduce the quantities of
commodities ordered from Seller or delay the shipment of quantities of
commodities previously ordered therefrom,; (ii) secure injunctions or other
appropriate orders to restrain any such Seller Event of Default without showing
or proving any actual damage to Buyer; (iii) terminate this Agreement
immediately upon notice to Seller. Each of the following shall be a "Seller
Event of Default":
a. Failure or neglect by Seller to observe or perform any of the
obligations, terms, provisions, promises, agreements, or covenants of this
Agreement; or
b. If any representation or warranty in this Agreement or in any other
agreement, document, or instrument evidencing, securing, or relating to any of
the obligations, covenants, promises, and agreements made in this Agreement is
false or incorrect as of the date made.
12. Buyer Events of Default. Upon the occurrence of a Buyer Event of Default,
Seller may, at its sole discretion: (i) cancel or reduce the quantities of
commodities shipped to Buyer or delay the shipment thereof; (ii) secure
injunctions or other appropriate orders to restrain any such Buyer Event of
Default without showing or proving any actual damage to Seller; (iii) terminate
this Agreement immediately upon notice to Buyer. Each of the following shall be
a "Buyer Event of Default":
a. Failure or neglect by Buyer to observe or perform any of the
obligations, terms, provisions, promises, agreements, or covenants of this
Agreement; or
b. If any representation or warranty in this Agreement or in any other
agreement, document, or instrument evidencing, securing, or relating to any of
the obligations, covenants,
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promises, and agreements made in this Agreement is false or incorrect as of the
date made.
13. Miscellaneous.
a. Arbitration. Any dispute arising out of this Agreement or any
amendment hereto shall be settled by arbitration in Maricopa County, Arizona,
pursuant to the rules of the American Arbitration Association. Any award or
decision of an arbitrator shall be final and binding upon each of the parties
and may be enforced in any court of competent jurisdiction.
b. Assignment. Buyer and Seller may not assign the whole, or any part
of this Agreement, without the prior written consent of the other party.
c. Counterparts. This Agreement may be executed in counterparts, each
of which, when executed, shall be deemed an original.
d. Governing Law. This Agreement shall be governed by the laws of the
State of Arizona. In the event of litigation, each party consents to the
jurisdiction of either the state or federal courts located in Arizona and to
service of process, either personally or by registered mail, return receipt
requested, except that Buyer reserves the right to institute and prosecute a
lawsuit in any court of competent jurisdiction to effect the collection of any
monies due to Buyer from Seller or to protect trademark rights or copyrights.
e. No Partnership Intended. Nothing in this Agreement is intended to,
or shall be construed to, create a partnership or joint venture between the
parties.
f. Notices. Any and all notices required by this Agreement shall be
personally delivered or sent by regular first-class mail, postage prepaid,
addressed to a party at the address set forth herein, or at such other address
as the party may designate to the other party in accordance with this paragraph.
A notice shall be deemed effective when mailed, or, if personally delivered,
when delivered.
g. Severability. The invalidity of any portion of this Agreement shall
not affect the validity of the remaining portions which shall remain in full
force and effect.
h. Waiver. The failure on the part of either party to enforce at any
time any provision of this Agreement or to insist on timely performance of any
obligation contained in this Agreement shall not be construed to be a waiver of
such provision or of any other provision or of the right to timely performance
of all obligations contained herein.
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IN WITNESS WHEREOF, the parties hereto have executed this
Agreement the day and year first above written.
BUYER:
EMCO RECYCLING CORP., AN ARIZONA
CORPORATION
By: /s/ G. O. Xxxxxxxxx
___________________________
Its: President
___________________________
SELLER:
XXXXX METALS, INC., AN ARIZONA
CORPORATION
By: /s/ Xxxxxx Xxxxxxxxxx
___________________________
Its: Vice President
___________________________
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EXHIBIT A
1. NON-FERROUS MATERIAL, EXCEPT FOR LOW-GRADE AND HIGH-GRADE MATERIALS:
a. Non-Ferrous Material received directly into EMCO's facility - price
is *.
b. Non-Ferrous Material shipped by Xxxxx Metals to EMCO customers -
price is *.
2. NON-FERROUS LOW-GRADE AND HIGH-GRADE MATERIALS. Non-Ferrous Low-Grade
and High-Grade Materials - price is *.
3. FERROUS MATERIAL, EXCEPT FOR XXXXXXXXXXX:
a. Ferrous Material received directly into EMCO's facility - price is
*.
b. Ferrous Material shipped by Xxxxx Metals to EMCO customers - price
is *.
4. XXXXXXXXXXX MATERIAL. Xxxxxxxxxxx material - price is *.
5. NO CONSUMER SALES ORDER PRICE AVAILABLE. *.
DEFINITIONS:
Consumer Sales Order Price - shall mean *.
* Omitted and filed separately with the Commission pursuant to a Confidential
Treatment Request.
