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.
ROUND SUPPLY AGREEMENT
THIS ROUND SUPPLY AGREEMENT, entered into this 13'th day of August,
1999, but effective August 1, 1999, between REPUBLIC TECHNOLOGIES INTERNATIONAL,
LLC, a limited liability company formed under the laws of the state of Delaware
("Seller"), and LORAIN TUBULAR COMPANY, LLC a Delaware limited liability
company, and USX CORPORATION, a Delaware corporation acting through its U. S.
Steel Group ("USX").
W I T N E S S E T H:
WHEREAS, Seller and Buyer are being formed pursuant to a
Master Restructuring Agreement among Republic Technologies International, Inc.
(formerly named Bar Technologies Inc.,) RES Holding Corporation, Republic
Engineered Steels, Inc., Blackstone Capital Partners II Merchant Banking Fund
L.P., Blackstone Offshore Capital Partners II L.P., Blackstone Family Investment
Partnership II L.P., The Veritas Capital Fund, L.P., HVR Holdings, L.L.C.,
Seller, Kobe Steel, Ltd., USS Lorain Holding Company, Inc., Kobe/Lorain Inc.,
and USS/Kobe Steel Company ("USS/Kobe") dated as of the 13th day of August, 1999
("Master Restructuring Agreement"); and
WHEREAS, Seller and Buyer are obligated under the Master
Restructuring Agreement to enter into this agreement; and
WHEREAS, pursuant to the Master Restructuring Agreement Kobe
and USX will create a new entity ("Lorain Tubular Company, LLC") and will cause
the transfer of certain pipe/tubemaking assets of USS/Kobe, a partnership
between wholly owned subsidiaries of Kobe and USX, to Lorain Tubular Company,
LLC (hereinafter referred to as "Buyer"); and
WHEREAS, pursuant to the Master Restructuring Agreement
Blackstone Management Partners II, L.L.C., Kobe and USX will create Seller and
will cause the merger of USS/Kobe into Seller; and
WHEREAS, Buyer desires to obtain a reliable and continuing
source of rounds for its pipe/tubemaking facility near Lorain, Ohio (hereinafter
referred to as the "Pipemill"); and
WHEREAS, Seller desires to supply to Buyer rounds produced by
Seller at its steelmaking melt shop and continuous round caster near Lorain,
Ohio, (hereinafter referred to as the "Lorain Works") in accordance with the
terms and conditions set forth herein;
NOW, THEREFORE, Buyer, Seller and USX hereby agree as follows:
ARTICLE I
DEFINITIONS
1.1 General. Each capitalized term used herein shall have the
meaning assigned to it in this Agreement (including the Schedules hereof) or as
set forth in this Article I.
1.2 Certain Terms. As used herein:
"Rounds" means continuously cast or rolled carbon steel
rounds, high strength steel rounds and alloy steel rounds produced by Seller at
Seller's Lorain Works which are of the dimensions and chemistry set forth in
Schedule A and meet the specifications set forth in Buyer's orders as
acknowledged by Seller hereunder.
"Coke Supply Agreement" means the Coke Supply Agreement of
even date herewith by and between Republic Technologies International, LLC, and
U.S. STEEL GROUP - USX CORPORATION.
"Default" shall have the meaning assigned in Section 3.1.
"Force Majeure" shall have the meaning assigned in Section
4.17.
"Late Payment Rate" shall mean the prime interest rate as
publicly announced by the Morgan Guaranty Trust Co. (or its successor) on the
first business day of the month for each month throughout the period during
which any amount is due and unpaid.
"Pellet Supply Agreement" means the Pellet Supply Agreement of
even date herewith by and between Republic Technologies International, LLC, and
U.S. STEEL GROUP - USX CORPORATION.
"Person" shall mean 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.
"Seller's Standard Terms and Conditions of Sale" shall mean
the terms and conditions set forth on Schedule B, as the same may be amended
from time to time by mutual agreement of the parties.
2
"Tons" means 2,000 pounds avoirdupois in weight.
ARTICLE II
ROUND SALES
2.1 Forecasts. During the term of this Agreement, Buyer will
provide Seller with written forecasts of the quantity of Rounds for which it
anticipates placing orders hereunder for the following periods at the stated
intervals:
(i) An annual forecast of the quantity of
Rounds desired for each calendar year not later than
90 days prior to the commencement of such year;
provided, however, that Buyer shall provide Seller
with a supplement updating its annual forecast if, at
any time during the covered year, such forecast
changes materially.
(ii) A quarterly forecast of the quantity,
by mill, of Rounds desired for each month of the
succeeding calendar quarter not later than thirty
(30) days prior to the commencement of such quarter.
(iii) For Rounds to be purchased during the
balance of calendar year 1999 the forecast set forth
in Schedule D shall apply.
It is understood that Buyer's forecasts provided in accordance with this Section
2.1 are for the purpose of facilitating production, scheduling and delivery of
Rounds and are not binding upon Buyer.
2.2 Quantities.
(a) Subject to the terms hereof, Seller agrees to sell, and
Buyer agrees to buy, Rounds for use at the Pipemill. During each calendar
quarter that this Agreement is in effect, Seller shall supply to Buyer all of
Buyer's requirements for Rounds for use at the Pipemill, if any, meeting the
specifications set forth in Buyer's orders as acknowledged by Seller, up to a
maximum of 100,000 Tons per calendar quarter, at the price set forth in Section
2.3 ("Base Orders"). Buyer shall have the option to purchase, for use at the
Pipemill, an additional 50,000 Tons of Rounds per calendar quarter, meeting the
specifications set forth in Buyer's orders as acknowledged by Seller, in excess
of the 100,000 Tons per calendar quarter covered by Base Orders, at the price
set forth in Section 2.3 ("Additional Orders"). Notwithstanding any other
3
provision of this Agreement, Buyer's obligation to place orders for its
requirements, up to a maximum of 100,000 Tons per calendar quarter, shall be
carried forward on a cumulative basis, but not beyond the end of a calendar year
as provided in Section 2.2(d) below. Buyer's option to make Additional Orders in
a particular quarter, to the extent not exercised, may be carried forward on a
cumulative basis, but not beyond the end of a calendar year. The amounts set
forth in the preceding sentences with respect to Buyer's Base Order obligations
and Additional Order option shall be reduced on a pro rata basis for any period
of less than a calendar quarter during which this Agreement is in effect.
(b) In the event that at the end of any calendar quarter,
Buyer shall have not ordered a total of 100,000 Tons of Rounds for such calendar
quarter, Buyer's requirements to purchase Rounds from Seller during the
subsequent calendar quarter during the same calendar year shall be increased
over its Base Order obligations by an amount equal to the difference between
100,000 Tons and the amount of Rounds actually purchased in such quarter (the
"Shortfall Amount"). Purchases of Rounds during a calendar quarter shall first
be applied to Buyer's Base Order obligations for such quarter and then to
Shortfall Amounts in the order in which such Shortfall Amounts were incurred.
(c) In the event that a Shortfall Amount for any calendar
quarter is not purchased by Buyer during the subsequent calendar quarter
thereto, during the calendar quarter following the subsequent calendar quarter
USX agrees to purchase from Seller the portion of such Shortfall Amount, if any,
not so purchased by Buyer in such subsequent quarter (a "USX Shortfall") for its
Fairfield Works pipemill the quantity of Rounds, if any, required by USX which
cannot be satisfied from USX's Fairfield Works internal Round production (offset
by the amount of any such USX Shortfall purchased by Buyer). USX shall not be
required to purchase Rounds from Seller for its Fairfield Works pipemill
exceeding the amount of the USX Shortfall not purchased by Buyer. A USX
Shortfall arising in any calendar quarter shall carry forward cumulatively for
the subsequent three calendar quarters, after which time if USX has not been
required to purchase such USX Shortfall, such USX Shortfall shall be
extinguished. Except as expressly set forth otherwise herein, such purchases by
USX shall be at the same prices and according to the same terms and conditions
as applicable to Buyer hereunder.
(d) Notwithstanding the foregoing, if Buyer purchases more
than 100,000 Tons of Rounds in a particular quarter (other than purchases in
respect of Shortfall Amounts), such purchases may be treated as Base Orders
applicable to the succeeding calendar quarter in the same year until such time
as cumulative purchases during such year equal 400,000 Tons. By way of example,
if Buyer purchases 120,000 Tons in the first calendar quarter, Buyer will be
obligated to purchase no more than 80,000 Tons in the second calendar quarter.
If Buyer then purchases 110,000 Tons in the second calendar quarter, Buyer will
be obligated to purchase no more than 70,000
4
Tons in the third calendar quarter. If Buyer then purchases 95,000 Tons in the
third calendar quarter Buyer will be obligated to purchase no more than 75,000
Tons in the fourth calendar quarter. Up to that point, all such purchases will
be at the price applicable to Base Orders. If fourth quarter purchases amount to
115,000 Tons, the first 75,000 Tons will be at the price for Base Orders, and
the next 40,000 Tons will be at the price for Additional Orders. By way of
further example, if Buyer purchases 80,000 Tons in the first calendar quarter,
there will be a 20,000 Ton Shortfall Amount. If Buyer in the second calendar
quarter purchases 110,000 Tons, 100,000 Tons will be applied to the Base Order
for such calendar quarter and 10,000 tons will be applied to the Shortfall
Amount. In the third calendar quarter, the 10,000 Ton Shortfall Amount from the
first calendar quarter will become a USX Shortfall. The 10,000 Ton USX Shortfall
arising as an obligation of USX in the third calendar quarter, if not purchased
by USX, will be carried forward to the fourth calendar of that year and to the
first and second calendar quarters of the succeeding year and if not purchased
by USX by the end of such second calendar quarter because it has not been
required by USX, will be extinguished.
2.3 Prices.
(a) For orders of Rounds placed hereunder, Buyer shall pay
Seller purchase prices equal to (i) the prices set forth on Schedule A for
orders applicable to calendar quarters (or portions thereof) ending on or before
December 31, 1999, or (ii) prices set according to Section 2.3(b) for orders
applicable to calendar quarters (or portions thereof) commencing after December
31, 1999; provided, however, that, if at any time within 90 days of the end of a
six month period for which prices were set pursuant to Section 2.3(b) Seller
determines that its [***] incurred in the production of ordered Rounds during
such six month period (as determined in good faith by Seller according to the
methods set forth on Schedule A and subject to Buyer's verification, but if the
parties are unable to agree on the amount of such [***] within 30 days of
Buyer's commencing verification procedures, the matter shall be submitted to the
dispute resolution procedure set forth in Section 4.3) exceeded its [***],
Seller shall so notify Buyer and from the date the [***] exceeded the [***], the
price for Rounds ordered hereunder until set again pursuant to Section 2.3(b)
shall be equal to [***] per ton, or for Additional Orders [***] per ton,
provided, further, that, if at any time within 90 days of the end of a six month
period for which prices were set pursuant to Section 2.3(b) Seller or Buyer
determines that Sellers [***] incurred in the production of ordered Rounds (as
determined in good faith by either Seller or Buyer according to the methods set
forth on Schedule A and subject to the other party's verification, but if the
parties are unable to agree on the amount of such [***] within 30 days of the
commencement by either party of verification procedures, the matter shall be
submitted to the dispute resolution procedure set forth in Section 4.3) were
less than Seller's [***], Seller or Buyer shall so notify the other party and
from the date the [***] were less than the [***], the
5
price for Rounds ordered hereunder until set again pursuant to Section 2.3(b)
shall be equal to [***] per ton, or for Additional
Orders [***] per ton. The parties acknowledge and agree
that the portion of costs associated with a catastrophic or extraordinary event
are not intended to be passed along to Buyer by Seller. A catastrophic or
extraordinary event shall be an event that results in an unplanned/unscheduled
delay or outage of Seller's equipment in excess of 24 hours and a total cost
expenditure relating thereto in excess of [***]. By way of example, a
catastrophic or extraordinary event shall include, but not be limited to, a
ladle burnthrough causing extensive property damage, a tundish burnthrough
causing extensive property damage, a serious caster breakout causing extensive
property damage, an explosion causing extensive property damage, a major
equipment fire or an electrical substation failure.
(b) At least 30 days before the commencement of each six-month
period beginning January 1, 2000 (i.e., January 1, 2000 to June 30, 2000, July
1, 2000 to December 31, 2000, January 1, 2001 to June 30, 2001; etc.), the
parties hereto shall set the prices of Rounds for such six-month period so that
they shall be equal to for Base Orders [***] per Ton, or for
Additional Orders [***] per Ton (the [***] shall
be determined in good faith by Seller on the same basis as the prices set forth
on Schedule A and subject to Buyer's verification, but if the parties are unable
to agree on the amount of [***] within 30 days of
Buyer's commencing verification procedures, the matter shall be submitted to the
dispute resolution procedure set forth in Section 4.3).
(c) The weights used for purposes of determining the amount of
Rounds actually sold hereunder shall be calculated on the basis set forth in
Schedule C, and such weights shall be conclusive as to the quantities of Rounds
sold hereunder; provided, however, that if Buyer should encounter material
discrepancies between weights so determined and weights measured by Buyer, Buyer
and Seller shall meet to discuss reasons for such discrepancies and whether
remedial action is necessary.
(d) Notwithstanding any other provision of this Agreement, the
parties acknowledge and agree that orders of Shortfall Amounts or USX Shortfall
amounts accruing in a calendar year shall not be considered as a Base Order for
determining the threshold amount for Additional Orders, if placed in a
succeeding calendar year.
2.4. Orders.
(a) The following procedure shall be used by the parties for
ordering as cast Rounds: (i) On or before the tenth day of each month during the
term hereof, Seller will furnish Buyer with Seller's schedule for producing
Rounds for the next
6
succeeding month, based upon the forecasts provided by Buyer pursuant to Section
2.1; (ii) After receipt by Buyer of Seller's schedule for producing Rounds,
Buyer shall, on or before the fifteenth day of each such month, submit to Seller
a forecast, by Round size, of the number of Round heats required and delivery
dates for Rounds to be delivered in the next succeeding month, said number of
Round heats to be final and binding on both parties; (iii) On or before the
seventh day prior to the scheduled date for the production of Rounds as set
forth in subsection (i) above, Buyer will issue to Seller a written order, which
shall be conclusive, final and binding on both parties, setting forth the number
of heats of each grade specification and number of rounds required by Round
Billet Number, for each Round size. For rolled Rounds, if any, Buyer will issue
to Seller an order, which shall be binding on both parties, for rolling of
Rounds during the two (2) weeks of production at Seller's Lorain Works rolling
mill, five (5) days prior to the start of the two week production period,
setting forth the number of Rounds required by size, steel grade, specification
and Round Billet Number for that period. Such two (2) week production period
shall commence on the first day and the fifteenth day of each month. Buyer
agrees to use reasonable efforts to order Rounds at as uniform a rate as
practicable from month to month; provided, however, that in no event will Buyer
be obligated to disrupt its normal course of business or incur any additional
expense in exerting such efforts. All orders for cast Rounds that are received
after the seventh day prior to the scheduled date for the production of cast
Rounds or, if accepted, would cause the amount of cast Rounds purchased
hereunder to exceed 50,000 Tons in any given month (i) shall be subject to
acceptance or rejection by Seller, (ii) can be rejected by Seller for any reason
or no reason, and (iii) shall not be binding on Seller until accepted. All
orders for rolled Rounds that are received after the fifth day prior to the
start of the two week production period or, if accepted, would cause the amount
of rolled Rounds purchased hereunder to exceed 25,000 Tons in any given month
(i) shall be subject to acceptance or rejection by Seller, (ii) can be rejected
by Seller for any reason or no reason, and (iii) shall not be binding on Seller
until accepted. Any such orders by Buyer rejected by Seller in accordance with
the preceding two sentences will not reduce Buyer's Base Order obligation
provided in Section 2.2.
(b) Within 7 business days (5 business days in the case of
rolled Rounds) of Seller's receipt of any order from Buyer, or prior to the
scheduled date of production, whichever is earlier, Seller shall send Buyer
written acknowledgement of its receipt of the order. Any proposed changes by
Seller from Buyer's order shall be negotiated by the parties before
acknowledgement. If Seller has the right to reject such order pursuant to
Section 2.4(a), Seller's written acknowledgement shall state whether Seller
accepts or rejects such order. Seller's notices of acknowledgement shall be on
Seller's order acknowledgement form, setting forth the quantity and
specifications of Rounds which Seller will deliver to Buyer and the anticipated
delivery date, provided that such anticipated delivery date shall be within 60
days of the acknowledgement.
(c) Seller will only be required to produce a requested size
of ordered Rounds once per month at a minimum three heat quantity and Seller may
7
deliver to Buyer during any month a quantity of Rounds that exceeds Buyer's
orders for such month by up to the next whole heat (on a grade page/round size
combination) and Buyer shall be obligated to accept such excess quantity as if,
and to the same extent as, such excess quantity had been ordered by Buyer.
Seller shall use reasonable efforts to minimize excess Round production. By way
of example, if Buyer orders 7.6 heats of a grade page/round size combination,
Buyer will be obligated to accept a quantity up to 8.0 heats on such grade
page/round size combination.
2.5 Invoices and Payment.
(a) Seller will submit an invoice for the purchase price of
each order of Rounds hereunder to Buyer at the time that Seller ships Rounds to
Buyer in accordance with Section 2.6.
(b) Within [***] of the date of Seller's invoice relating to
an order of Rounds hereunder, Buyer shall remit to Seller the net amount due by
check mailed to an address specified by Seller. Buyer shall pay interest on all
amounts not paid within [***] at the Late Payment Rate from and including the
thirtieth day, but excluding the date payment is actually made.
(c) Each partial delivery or installment of Rounds 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.
2.6 Delivery, Title and Risk of Loss.
(a) Delivery of Rounds to Buyer shall take place F.O.B.
Pipemill track No. 659 or 724 (per Buyer's order), unless otherwise agreed, or
in such manner or at such other place as shall be agreed upon by the parties in
writing prior to the shipment of Rounds. Title and risk of loss and damage to
the Rounds shall pass from Seller to Buyer when the Rounds are delivered in
accordance with this Section 2.6(a). Seller shall be responsible for truck
detention and/or rail demurrage charges incurred by Buyer which arise out of
delays to carrier equipment at Lorain Works receiving shipments of Rounds
ordered hereunder which have been scheduled by Seller, it being understood that
Seller will ordinarily schedule such shipments. Seller shall accept direct
billing from carriers for any such detention and/or demurrage.
(b) Delivery of Rounds to USX shall take place F.O.B. railcar
at Seller's Lorain Works, unless otherwise agreed, or in such manner or at such
other place as shall be agreed upon by the parties in writing prior to the
shipment of Rounds. Title and risk of loss and damage to the Rounds shall pass
from Seller to USX when the Rounds are delivered in accordance with this Section
2.6(b). Seller shall be responsible
8
for truck detention and/or rail demurrage charges incurred by USX which arise
out of delays to carrier equipment at Seller's Lorain Works receiving shipments
of Rounds ordered hereunder which have been scheduled by Seller, it being
understood that Seller will ordinarily schedule such shipments. Seller shall
accept direct billing from carriers for any such detention and/or demurrage.
2.7 Terms and Conditions of Sale.
(a) Seller's Standard Terms and Conditions of Sale shall
govern the purchase and sale of Rounds hereunder except to the extent that a
provision of this Agreement otherwise applies.
(b) In the event that any shipment of Rounds does not conform
to the specifications stated in Buyer's order as provided herein and as
acknowledged by Seller, Buyer shall promptly notify Seller of the nonconformity,
and Seller shall have a reasonable opportunity to investigate and cure such
nonconformity.
(c) 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, acknowledgment 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 govern, unless expressly waived in accordance with Section 4.16.
2.8 Warranty.
(a) All Rounds sold by Seller hereunder will carry Seller's
standard warranty as stated in Seller's Standard Terms and Conditions of Sale as
in effect at the time the order is acknowledged. OTHER THAN AS AFORESAID OR AS
AGREED TO BY SELLER IN WRITING FROM TIME TO TIME, 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 consequential
damages, losses or expenses based upon, resulting from, or arising out of any
use of, or the inability to use, the Rounds for any purpose whatsoever.
(b) Without limiting the generality of Section 2.8(a), Seller
makes no warranty with respect to and shall have no liability to Buyer in any
case where Seller has delivered the ordered quantity and correctly followed all
specifications stated in Buyer's order as acknowledged by Seller.
2.9 [***]
9
ARTICLE III
TERM AND TERMINATION
3.1 Term. This Agreement shall become effective August 1, 1999
and shall remain in full force and effect through December 31, 2004 and from
year to year thereafter unless terminated as follows:
(i) By written mutual consent of the parties at any time;
(ii) By either party if Seller permanently ceases
production of Rounds or Buyer ceases to operate the Pipemill,
provided that Buyer or Seller, 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) At the end of the initial term or any subsequent
one-year term by either party's giving the other party 6
month's prior written notice of termination; or
(iv) By either party, upon 60 day's prior written notice,
if the other party is in Default hereunder and fails to
correct such Default within 30 days' of such written notice of
Default.
(v) by Buyer, upon 90 days prior written notice, if Seller
ceases to operate at least one blast furnace at its Lorain
Works, and/or terminates the Coke Supply Agreement or Pellet
Supply Agreement for any reason
10
other than default of the seller (U. S. Steel Group - USX
Corporation) thereunder .
As used herein, "Default" means (a) failure of either party to make any payment
hereunder when due and payable or (b) failure of either party to perform, keep
or observe any material obligation, provision, warranty or condition contained
herein, unless otherwise excused by the terms of this Agreement.
3.2 Termination. Seller and Buyer agree that upon and after
termination of this Agreement:
(i) All orders previously accepted by Seller hereunder, and
Buyer's obligation to pay for such orders, shall continue in
full force and effect.
(ii) Buyer shall remain obligated to make any payment that
became due and owed to Seller hereunder prior to termination.
(iii) Liabilities and obligations of any party arising from
any act, omission, default or occurrence prior to termination
shall remain with such party.
(iv) The parties' rights and obligations under Sections
2.5, 2.8, 4.1, 4.2, 4.3, 4.4, 4.5, 4.6, 4.7, 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
11
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, with interest at the
Late Payment Rate, 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 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, 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. The dispute 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 Rounds hereunder as shall be necessary for the
determination of
12
prices under Section 2.3 and the calculation of amounts payable under Section
2.5. 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, nonintrusive 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, 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
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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;
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.
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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 duplicated
copy sent via first class mail postage prepaid, addressed as follows:
If to Buyer:
Lorain Tubular Company, LLC
1807 East 28th Street
Lorain, Ohio 44055
Attention: G. Gajdzik
Facsimile: (216) 277-3348
If to Seller:
REPUBLIC TECHNOLOGIES INTERNATIONAL, LLC
c/o Republic Technologies International, Inc.
3770 Embassy Parkway
Akron, Ohio 44333
Attention: President & COO
Facsimile: (330) 670 - 7034
and if such notice or communication is not an order for Rounds pursuant
to this Agreement, with a copy to:
Kobe/Lorain Inc.
535 Madison Avenue
New York, New York 10022
Attention: Masumi Sato
Facsimile: (212) 355-5564
and to:
U. S. Steel
Room 2001
600 Grant Street
Pittsburgh, PA 15219USX Corporation
Attention: General Manager Tubular Products
Facsimile: (412)433-3993
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and to:
The Blackstone Group
345 Park Avenue
New York, NY 10154
Attn: Robert Friedman
Fax: (212) 583-5704
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
provided 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 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 Persons or (iii) to any Person to whom either party has made any
sale, lease, transfer or other disposition of all or substantially all of its
assets; 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.
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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.
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 herein
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
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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 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.
IN WITNESS WHEREOF, this Agreement has been executed and
delivered as of the date first written above.
LORAIN TUBULAR
COMPANY, LLC
By: /s/ R. M. Stanton
------------------------------
Name: R. M. Stanton
Title: Vice President
REPUBLIC TECHNOLOGIES
INTERNATIONAL, LLC
By: /s/ John B. George
------------------------------
Name: John B. George
Title: Vice President of Finance,
Treasurer and Secretary
USX CORPORATION
By: /s/ A. E. Ferrara, Jr.
------------------------------
Name: A. E. Ferrara, Jr.
Title: Vice President-Strategic
Planning
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