EXECUTION COPY
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COAL INVENTORY PURCHASE AGREEMENT
by and between
DTE COAL SERVICES, INC.
and
NATIONAL STEEL CORPORATION
For the Purchase and Sale of Coal Inventory
Associated With the Number 5 Coke Battery
located at National Steel Corporation's
Great Lakes Division in River Rouge, Michigan
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Dated as of June 6, 1997
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TABLE OF CONTENTS
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ARTICLE I
DEFINITIONS
SECTION 1.1 Defined Terms.................................. 1
SECTION 1.2 Construction of Certain Terms and Phrases...... 2
ARTICLE II
SALE OF COAL INVENTORY AT CLOSING
SECTION 2.1 Coal Inventory Transferred at Closing.......... 3
SECTION 2.2 Retained Liabilities........................... 3
SECTION 2.3 Purchase Price and Payment..................... 3
SECTION 2.4 Closing........................................ 4
SECTION 2.5 Further Assurances............................. 4
SECTION 2.6 Third Party Consents........................... 4
SECTION 2.7 Taxes.......................................... 4
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF NSC
SECTION 3.1 Power, Authority, No Contravention............. 5
SECTION 3.2 Third Party Consents and Governmental Approvals 5
SECTION 3.3 Litigation..................................... 5
SECTION 3.4 Title.......................................... 6
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF DTE COAL
SECTION 4.1 Power, Authority, No Contravention............. 6
SECTION 4.2 Litigation..................................... 6
ARTICLE V
CONDITIONS TO OBLIGATIONS OF DTE COAL
SECTION 5.1 Officers' Certificates......................... 7
SECTION 5.2 Consents and Approvals......................... 7
TABLE OF CONTENTS
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SECTION 5.3 Opinion of Counsel............................. 7
SECTION 5.4 Xxxx of Sale................................... 7
SECTION 5.5 Project Contracts.............................. 7
ARTICLE VI
CONDITIONS TO OBLIGATIONS OF NSC
SECTION 6.1 Officers' Certificates......................... 7
SECTION 6.2 Opinion of Counsel............................. 8
SECTION 6.3 Project Contracts.............................. 8
SECTION 6.4 Consents and Approvals......................... 8
ARTICLE VII
SURVIVAL OF REPRESENTATIONS AND WARRANTIES;
NO OTHER REPRESENTATIONS AND WARRANTIES
SECTION 7.1 Survival of Representations and Warranties..... 8
SECTION 7.2 NO OTHER REPRESENTATIONS OR WARRANTIES......... 8
SECTION 7.3 Limitation of Liability........................ 9
SECTION 7.4 Indemnity Procedures........................... 9
ARTICLE VIII
MISCELLANEOUS
SECTION 8.1 Notices........................................ 9
SECTION 8.2 Entire Agreement............................... 10
SECTION 8.3 Confidentiality................................ 10
SECTION 8.4 Required Disclosure............................ 11
SECTION 8.5 Waiver......................................... 11
SECTION 8.6 Amendment...................................... 12
SECTION 8.7 No Third Party Beneficiary..................... 12
SECTION 8.8 Headings....................................... 12
SECTION 8.9 Invalidity..................................... 12
SECTION 8.10 Counterparts................................... 12
SECTION 8.11 Governing Law.................................. 12
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TABLE OF CONTENTS
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SECTION 8.12 Effective Date................................. 12
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TABLE OF CONTENTS
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EXHIBIT A FORM OF NSC COUNSEL OPINION
EXHIBIT B FORM OF DTE COAL COUNSEL OPINION
SCHEDULE 2.3(a) CALCULATION OF PURCHASE PRICE AND DESCRIPTION OF COAL INVENTORY
SCHEDULE 2.3(c) METHODOLOGY FOR POST CLOSING ADJUSTMENT TO COAL INVENTORY
SCHEDULE 2.4 FORM OF XXXX OF SALE
SCHEDULE 2.6 THIRD PARTY CONSENTS
SCHEDULE 3.2 GOVERNMENTAL APPROVALS
SCHEDULE 3.3 NSC LEGAL PROCEEDINGS
SCHEDULE 4.2 DTE COAL LEGAL PROCEEDINGS
Note: The exhibits and schedules shown above are not included in this Form 8-K
filing. National Steel Corporation agrees to furnish supplementally copies of
these exhibits and schedules to the Commission on request.
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COAL INVENTORY PURCHASE AGREEMENT
THIS COAL INVENTORY PURCHASE AGREEMENT (this "Agreement") is made and
entered into as of June 6, 1997 by and between DTE COAL SERVICES, INC., a
Michigan corporation ("DTE Coal"), and NATIONAL STEEL CORPORATION, a Delaware
corporation ("NSC") (DTE Coal and NSC each a "Party" and collectively the
"Parties").
RECITALS:
WHEREAS, NSC owns certain Coal Inventory associated with the Coke Battery;
and
WHEREAS, NSC desires to sell, transfer and assign to DTE Coal, and DTE Coal
desires to purchase and acquire from NSC, the Coal Inventory pursuant to the
terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants, undertakings and
agreements set forth below, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the Parties, intending
to be legally bound, hereby agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1 Defined Terms. (a) Capitalized terms defined in Appendix A to
the Asset Purchase Agreement have, unless the same are defined herein, the same
meaning when used herein.
(b) The following terms are used in this Agreement with the following
meanings:
"Asset Purchase Agreement" means the Asset Purchase Agreement, dated as of
June 6, 1997 by and between EES Coke and NSC.
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"Xxxx of Sale" shall mean the Xxxx of Sale with respect to the Coal
Inventory in the form attached as Schedule 2.4.
"Coal Inventory" means collectively, Coal-in-Ovens, Coal-in-Process and
Designated Coal Piles.
"Coal Inventory Governmental Approval" has the meaning ascribed to such
term in Section 3.2.
"Coal-in-Ovens" means the coal which is in the ovens of the Coke Battery as
of the Closing Date.
"Coal-in-Process" means the coal in the mixing bins and coal located
elsewhere on the Site other than Coal-in-Ovens and coal in Designated Coal
Piles.
"Coal-in-Transit" means any coal that NSC has title to as of the Closing
Date, but which has not yet been unloaded at Zug Island.
"Coke Plant Annual Plan Raw Material Prices" has the meaning ascribed to
such term in Schedule 2.3(c).
"Designated Coal Piles" means the piles of metallurgical coal stored on Zug
Island for use in the Coke Battery.
"Purchase Price" has the meaning ascribed to it in Section 2.3(a).
"Retained Liabilities" has the meaning ascribed to it in Section 2.2.
"Third Party Consents" has the meaning ascribed to it in Section 2.6.
SECTION 1.2 Construction of Certain Terms and Phrases. Unless the context
of this Agreement otherwise requires: (a) words of any gender include each other
gender; (b) words using the singular or plural number also include the plural or
singular number, respectively; (c) the terms "hereof", "herein", "hereby",
"hereto" and similar words refer to this entire Agreement and not any particular
Article, Section, Clause, Exhibit, Appendix or Schedule or any other subdivision
of this Agreement; (d) references to "Article", "Section", "Clause", "Exhibit",
"Appendix" or "Schedule" are to the Articles, Sections, Clauses, Exhibits,
Appendices and Schedules, respectively, of this Agreement; (e) the words
"include" or "including" shall be deemed to be followed by "without limitation"
or "but not limited to" whether or not they are followed by such phrases or
words of like
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import; and (f) references to "this Agreement" or any other agreement or
document shall be construed as a reference to such agreement or document as
amended, modified or supplemented and in effect from time to time and shall
include a reference to any document which amends, modifies or supplements it, or
is entered into, made or given pursuant to or in accordance with its terms.
Whenever this Agreement refers to a number of days, such number shall refer to
calendar days unless Business Days are specified. All accounting terms used
herein and not expressly defined herein shall have the meanings given to them
under generally accepted accounting principles as in effect on the Closing Date.
ARTICLE II
SALE OF COAL INVENTORY AT CLOSING
SECTION 2.1 (a) Coal Inventory Transferred at Closing. On the terms and
subject to the conditions set forth in this Agreement, NSC shall sell, assign,
transfer and deliver to DTE Coal, and DTE Coal shall purchase, assume, pay for
and accept, at the Closing, all of NSC's right, title and interest in and to the
Coal Inventory free and clear of all Liens.
(b) Title to Coal-in-Transit. All of NSC's right, title and interest in
and to Coal-in-Transit will be transferred to DTE Coal at Closing in
consideration for EES Coke's obligations under the Assignment, Assumption and
Novation Agreements referred to in Section 2.2 below.
SECTION 2.2 Retained Liabilities. DTE Coal shall not assume by virtue of
this Agreement or the transactions contemplated hereby, and shall have no
liability for, any Liability of NSC related to the Coal Inventory arising before
the Closing Date including any payment liability or obligation with respect to
the Coal Inventory that has not yet become due and payable (the "Retained
Liabilities"). NSC shall at all times indemnify and hold harmless DTE Coal in
respect of all Retained Liabilities, provided that NSC shall have the right to
contest, in good faith and through appropriate proceedings, any claim or
liability asserted in respect of the Coal Inventory by any Person. For the
avoidance of doubt it is understood by the Parties the "Retained Liabilities"
shall not include liabilities for Coal-in-Transit, which EES Coke hereby assumes
and will assume as a result of the Assignment, Assumption and Novation
Agreements, each dated as of May 10, 1997, or June 6, 1997, as the case may be,
by and between NSC and EES Coke and consented to by certain coal suppliers.
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SECTION 2.3 Purchase Price and Payment. (a) The purchase price for the
Coal Inventory to be sold, assigned, transferred and delivered to DTE Coal shall
be Nine Million Five Hundred Eighty Seven Thousand Four Hundred Fifty Four
Dollars ($9,587,454) (the "Purchase Price") as set forth and more specifically
described for each coal type in Schedule 2.3(a).
(b) At Closing, DTE Coal shall pay to NSC the Purchase Price in
immediately available funds by wire transfer into an account of NSC (as
designated in writing by NSC).
(c) Post Closing Adjustments. (i) The Purchase Price shall be adjusted no
later than forty-five (45) days after the Closing Date in the following manner:
(A) DTE Coal shall pay to NSC the amounts, if any, NSC has paid on or prior to
the Closing Date for Coal-In-Transit and for shipping costs relating to Coal-In-
Transit; and (B) based on an aerial inventory survey to be performed on or
around May 31, 1997 and an adjustment to the Coal Inventory based on the
methodology shown in Schedule 2.3(c), the Purchase Price shall be increased or
decreased by an amount equal to (x) the amount of the inventory adjustment for
each type of coal in the Designated Coal Piles multiplied by (y) the price for
"Receipts at Dry Per Net Ton" for such coal type set forth in Attachment A-5 of
Exhibit A to the Coke Sales Agreement, where DTE Coal shall pay to NSC any
increase in the Purchase Price or NSC shall refund to DTE Coal any decrease in
the Purchase Price resulting from this adjustment. All amounts due under this
Section 2.3(c)(i) shall be paid within thirty (30) days of the determination of
the amounts due with interest calculated using the Payment Rate for the period
from and including the Closing Date to but excluding the date payment is made.
(ii) The Purchase Price, as adjusted pursuant to Section 2.3(c)(i), shall
be further adjusted no later than forty-five (45) days after March 31, 1998
based on an aerial inventory survey to be performed on or around March 31, 1998
and an adjustment to the Coal Inventory based on the methodology shown in
Schedule 2.3(c), and shall be increased or decreased by an amount equal to (x)
the amount of the inventory adjustment for each type of coal in the Designated
Coal Piles multiplied by (y) the price for "Receipts at Dry Per Net Ton" for
such coal type set forth in Attachment A-5 of Exhibit A to the Coke Sales
Agreement, where DTE Coal shall pay to NSC any increase in the Purchase Price or
NSC shall refund to DTE Coal any decrease in the Purchase Price resulting from
this adjustment. All amounts due under this Section 2.3(c)(ii) shall be paid
within thirty (30) days of the determination of the amounts due with interest
calculated at six percent (6%) per annum for the period from and including the
Closing Date to but excluding the date payment is made.
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SECTION 2.4 Closing. The Closing shall take place at the offices of
Hunton & Xxxxxxxx, 0000 X Xxxxxx, X.X., Xxxxxxxxxx, X.X. 00000, on the Closing
Date, or at such other place and time as NSC and DTE Coal mutually agree.
Simultaneously with the delivery of the cash consideration referred to in
Section 2.3(a), at the Closing NSC shall execute and deliver, or cause to be
executed and delivered, to DTE Coal the xxxx of sale in form and substance
substantially as set forth on Schedule 2.4 ("Xxxx of Sale").
SECTION 2.5 Further Assurances. On the terms and subject to conditions of
this Agreement, at any time or from time to time after the Closing, each of DTE
Coal and NSC, without further compensation, shall execute and deliver such other
instruments of sale, assignment, assumption, transfer, delivery and
confirmation, provide such materials and information and take such other actions
as either Party may reasonably deem necessary in order to give effect to the
rights of DTE Coal and NSC hereunder.
SECTION 2.6 Third Party Consents. On or before the Closing, NSC shall use
its commercially reasonable efforts to obtain and deliver to DTE Coal, at NSC's
sole cost and expense, all third party consents and releases, other than
Governmental Approvals, necessary to permit NSC to sell, transfer, convey and
assign all of its right, title and interest in and to the Coal Inventory free
and clear of all Liens ("Third Party Consents"). A list of all such Third Party
Consents is set forth on Schedule 2.6.
SECTION 2.7 Taxes. DTE Coal shall pay all transfer fees, sales, use and
value-added taxes or similar fees or Taxes and penalties with respect thereto in
connection with the execution and delivery of this Agreement or the sale,
assignment, transfer and delivery of the Coal Inventory as contemplated
hereunder regardless of which Party such Taxes may be imposed upon or assessed
against.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF NSC
NSC hereby represents and warrants to DTE Coal as of the date hereof and as
of the Closing Date as follows:
SECTION 3.1 Power, Authority, No Contravention: (i) The execution of,
delivery of and performance under this Agreement by NSC (a) have been duly
authorized by all necessary corporate action of NSC, and this Agreement
constitutes the valid, binding and enforceable obligation of NSC, except as the
enforceability thereof may be limited by bankruptcy, insolvency, reorganization,
moratorium, other similar Laws now or hereafter
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in effect relating to or affecting creditor's rights or the relief of debtors
generally and by general principles of equity and public policy and the
discretion of the court before which any proceeding therefor may be brought,
whether enforceability is considered in a proceeding in law or equity, and (b)
do not violate or conflict with any charter, bylaw, Law, Contract or obligation
applying to NSC or any of its properties, other than such violations and
conflicts that would not reasonably be expected to impair NSC's ability to
perform in all material respects its obligations under this Agreement; (ii)
except as otherwise provided on Schedule 2.6 or Schedule 3.2, no consent,
approval, authorization or order of any Governmental Authority or third party
not already obtained is required with respect to NSC in connection with its
execution and delivery of and performance of its obligations under this
Agreement; and (iii) NSC is duly organized, validly existing and in good
standing under the Laws of its state of incorporation and has the right, power
and authority to enter into this Agreement and to perform in all material
respects its obligations hereunder.
SECTION 3.2 Third Party Consents and Governmental Approvals. To the best
of NSC's Knowledge, all Third Party Consents (other than Governmental Approvals)
are described in Schedule 2.6. To the best of NSC's Knowledge, all material
Governmental Approvals required to sell and transfer the Coal Inventory to DTE
Coal ("Coal Inventory Governmental Approval") are listed on Schedule 3.2. Except
as set forth in Schedule 3.2, all such Governmental Approvals are in full force
and effect.
SECTION 3.3 Litigation. Except as set forth on Schedule 3.3, there is no
pending or, to the best of NSC's Knowledge, threatened action, suit,
investigation, arbitration or other proceeding that would reasonably be expected
to have a material adverse impact individually or in the aggregate on the
business or financial results of NSC or that would impair the ability of NSC to
perform its obligations under this Agreement.
SECTION 3.4 Title. Upon consummation of the purchase and sale of the Coal
Inventory pursuant to the terms of this Agreement, DTE Coal will have valid
title to and ownership of the Coal Inventory. Immediately prior to the
consummation of the purchase of the Coal Inventory, the Coal Inventory will not
be subject to any Liens.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF DTE COAL
DTE Coal hereby represents and warrants to NSC as of the date hereof and as
of the Closing Date as follows:
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SECTION 4.1 Power, Authority. No Contravention: (i) The execution of,
delivery of and performance under this Agreement by DTE Coal (a) have been duly
authorized by all necessary corporate action of DTE Coal and this Agreement
constitutes the valid, binding and enforceable obligation of DTE Coal, except as
the enforceability thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium, other similar Laws now or hereafter in effect
relating to or affecting creditor's rights or the relief of debtors generally
and by general principles of equity and public policy and the discretion of the
court before which any proceeding therefor may be brought, whether
enforceability is considered in a proceeding in law or equity, and (b) do not
violate or conflict with any charter, bylaw, Law, Contract or obligation
applying to DTE Coal or any of its properties, other than such violations and
conflicts that would not reasonably be expected to impair DTE Coal's ability to
perform in all material respects its obligations under this Agreement; (ii) no
consent, approval, authorization or order of any Governmental Authority or third
party not already obtained is required with respect to DTE Coal in connection
with its execution and delivery of and performance of its obligations under this
Agreement; and (iii) DTE Coal is duly organized, validly existing and in good
standing under the Laws of its state of incorporation and has the right, power
and authority to enter into this Agreement and to perform in all material
respects its obligations hereunder.
SECTION 4.2 Litigation. Except as otherwise set forth in Schedule 4.2,
there is no pending or, to the best of DTE Coal's knowledge, threatened action,
suit, investigation, arbitration or other proceeding that would reasonably be
expected to have an adverse impact in the aggregate on the business or financial
results of DTE Coal or that would impair the ability of DTE Coal to perform its
obligations under this Agreement.
ARTICLE V
CONDITIONS TO OBLIGATIONS OF DTE COAL
The obligations of DTE Coal hereunder to purchase the Coal Inventory are
subject to the fulfillment, at or before the Closing, of each of the following
conditions (all or any of which may be waived in whole or in part by DTE Coal in
its sole discretion):
SECTION 5.1 Officers' Certificates. NSC shall have delivered to DTE Coal
a certificate executed by an authorized and responsible officer of NSC, dated
the Closing Date, certifying (i) that attached thereto is a true, correct and
complete copy of the Certificate of Incorporation for NSC as in effect on the
date of such certificate, (ii) that attached thereto is a true, correct and
complete copy of the resolutions adopted by the Board of Directors
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of NSC authorizing the execution, delivery and performance of this Agreement,
and all other documents delivered by NSC in connection herewith and that such
resolutions have not been modified, rescinded or amended and are in full force
and effect, (iii) that no action has been taken by NSC in contemplation of the
liquidation, dissolution, bankruptcy or insolvency of NSC, and (iv) as to the
incumbency and specimen signature of each representative of NSC executing this
Agreement and any other document delivered in connection herewith.
SECTION 5.2 Consents and Approvals. Each of the Third Party Consents (or
in lieu thereof, waivers) and each required Coal Inventory Governmental Approval
shall have been obtained by NSC and delivered to DTE Coal and shall be in full
force and effect.
SECTION 5.3 Opinion of Counsel. DTE Coal shall have received the opinion
or opinions of counsel to NSC, dated the Closing Date, in the form attached
hereto as Exhibit A.
SECTION 5.4 Xxxx of Sale. NSC shall have executed and delivered the Xxxx
of Sale to DTE Coal.
SECTION 5.5 Project Contracts. Each of the Project Contracts shall have
been executed by the parties thereto.
ARTICLE VI
CONDITIONS TO OBLIGATIONS OF NSC
The obligations of NSC hereunder to sell and convey the Coal Inventory are
subject to the fulfillment, at or before the Closing, of each of the following
conditions (all or any of which may be waived in whole or in part by NSC in its
sole discretion):
SECTION 6.1 Officers' Certificates. DTE Coal shall have delivered to NSC
a certificate executed by an authorized and responsible officer of DTE Coal,
dated the Closing Date, certifying (i) that attached thereto is a true, correct
and complete copy of the Certificate of Incorporation of DTE Coal as in effect
on the date of such certificate, (ii) that attached thereto is a true, correct
and complete copy of the resolutions adopted by the Board of Directors of DTE
Coal authorizing the execution, delivery and performance of this Agreement, and
all other documents delivered in connection herewith and that such resolutions
have not been modified, rescinded or amended and are in full force and effect,
(iii) that no action has been taken by DTE Coal in contemplation of the
liquidation, dissolution, bankruptcy or insolvency of DTE Coal, and (iv) as to
the incumbency and
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specimen signature of each representative of DTE Coal executing this Agreement,
and any other document delivered in connection herewith.
SECTION 6.2 Opinion of Counsel. NSC shall have received the opinion of
counsel of DTE Coal, dated the Closing Date, in the form and substance attached
hereto as Exhibit B.
SECTION 6.3 Project Contracts. Each of the Project Contracts shall have
been executed by the parties thereto.
SECTION 6.4 Consents and Approvals. Each of the Third Party Consents (or
in lieu thereof, waivers) and required Coal Inventory Governmental Approval
shall have been obtained by NSC and shall be in full force and effect.
ARTICLE VII
SURVIVAL OF REPRESENTATIONS AND WARRANTIES;
NO OTHER REPRESENTATIONS AND WARRANTIES
SECTION 7.1 Survival of Representations and Warranties. (a) The
representations and warranties of NSC set forth in Article III hereof and of DTE
Coal set forth in Article IV hereof shall survive for a period of two (2) years
after Closing. Any Claims with respect to a breach of a representation and
warranty made by a Party under this Agreement shall be asserted by giving
written notice to the other Party (describing in reasonable detail the facts and
circumstances supporting such Claim) within such two (2) year period. Any Claims
for breaches of representations and warranties hereunder shall be net of any Tax
Benefits and insurance proceeds available to the claiming Party. Any disputes
regarding such Tax Benefits shall be resolved in the manner set forth in Section
9.1(b) of the Asset Purchase Agreement, which Section 9.1(b) is incorporated by
reference into this Agreement (except that the references therein to the
"Parties" shall be deemed to be a reference to NSC and/or DTE Coal, as
applicable).
SECTION 7.2 NO OTHER REPRESENTATIONS OR WARRANTIES. EXCEPT FOR THE
REPRESENTATIONS AND WARRANTIES SPECIFICALLY SET FORTH ABOVE IN ARTICLE III, THE
COAL INVENTORY WILL BE DELIVERED TO DTE COAL "AS IS" AND "WHERE IS," WITHOUT ANY
EXPRESS OR IMPLIED REPRESENTATION OR WARRANTY OF ANY KIND, INCLUDING, WITHOUT
LIMITATION, ANY REPRESENTATION OR WARRANTY OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE.
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SECTION 7.3 Limitation of Liability. Neither Party shall have any
indemnification or other liability with respect to the breach of any
representation or warranty that does not have a material adverse effect on the
other Party. Neither Party shall be liable for special, consequential or
indirect damages with regard to any breach of a representation or warranty set
forth in this Agreement. Under no circumstances shall either Party be liable to
the other Party for punitive damages.
SECTION 7.4 Indemnity Procedures. The indemnity procedures set forth in
Section 9.4 of the Asset Purchase Agreement are, to the extent relevant to a
claim for a breach of a representation and warranty under this Agreement,
incorporated by reference into this Agreement (except that the references
therein to the "Parties" shall be deemed to be a reference to NSC and/or DTE
Coal, as applicable, and the references therein to this "Agreement" shall be
deemed to be a reference to this Agreement).
ARTICLE VIII
MISCELLANEOUS
SECTION 8.1 Notices. All notices, requests and other communications
hereunder must be in writing and shall be delivered personally (by hand delivery
or by overnight courier) or by facsimile transmission (with receipt of
transmission confirmation) or mailed (certified mail, postage prepaid) to the
Parties at the following addresses or facsimile numbers and shall be effective
upon receipt (when sent by personal delivery or by certified mail), and upon
receipt of transmission confirmation (when sent by facsimile):
If to NSC, to:
National Steel Corporation
Great Lakes Division
#0 Xxxxxxx Xxxxx
Xxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx Xxxx
Facsimile: 000-000-0000
and Attention: Xxxx Xxxxxx
Facsimile: 000-000-0000
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With a copy to NSC's General Counsel at:
National Steel Corporation
0000 Xxxxxx Xxxxx Xxxxxxx
Xxxxxxxxx, Xxxxxxx 00000-0000
Facsimile: 000-000-0000
If to DTE Coal, to:
DTE Coal Services, Inc.
P. O. Box 8614
000 Xxxxx Xxxx Xxxxxx, Xxxxx 000
Xxx Xxxxx, XX 00000
Attention: Xxxx X. XxXxxxxx
Facsimile: 000-000-0000
DTE Coal Services, Inc.
c/o The Detroit Edison Company
0000 Xxxxxx Xxxxxx, Room 0000 XXX
Xxxxxxx, Xxxxxxxx 00000-0000
Attention: Director-Business Development & Administration
Facsimile: 000-000-0000
Either Party from time to time may change its address, facsimile number or other
information for the purpose of notices to such Party by giving notice specifying
such change to the other Party.
SECTION 8.2 Entire Agreement. This Agreement constitutes the entire
agreement and understanding between the Parties with respect to the subject
matter herein and the transactions contemplated herein and any and all previous
understandings, proposals, negotiations, agreements, commitments and
representations, whether oral or written, are
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merged herein and are superseded hereby. This Agreement shall be binding upon
and inure to the benefit of the Parties and their respective successors and
permitted assigns.
SECTION 8.3 Confidentiality. Each Party shall hold, and shall use its
best efforts to cause its Affiliates, and in the case of DTE Coal, any Lender to
hold, in strict confidence from any other Person (other than any such Affiliate
or Lender) all documents and information concerning the other Party or any of
its Affiliates furnished to it by the other Party in connection with this
Agreement or the transactions contemplated hereby and, in the case of DTE Coal,
all historical cost and historical production information and all environmental
information furnished to DTE Coal or its consultants, contractors or agents by
NSC, unless (a) required to disclose any such information by judicial or
administrative process (including in connection with obtaining from Governmental
Authorities the necessary approvals of this Agreement and the transactions
contemplated hereby and of the other Project Contracts) or by other requirements
of Law, (b) disclosed in or pursuant to the offering statement provided to
potential purchasers of EES Coke securities issued by EES Coke in connection
with the acquisition of the Coke Facilities, provided that with respect to the
environmental remediation report referred to in such offering statement, such
potential purchasers shall be entitled to receive such report only upon the
execution and delivery to EES Coke (with a copy to NSC) of a confidentiality
agreement in form and substance reasonably satisfactory to NSC, or (c) disclosed
in an action or proceeding brought by either Party in pursuit of its rights or
in the exercise of its remedies hereunder. Notwithstanding the foregoing, this
Section 8.3 shall not apply to such documents or information that were (i)
previously known by the Party receiving such documents or information, (ii) in
the public domain (either prior to or after the furnishing of such documents or
information hereunder) through no fault of such receiving Party, or (iii) later
acquired by such receiving Party from another source if such receiving Party is
not aware that such source is under an obligation to the other Party to keep
such documents and information confidential. Following the Closing, the
foregoing restrictions shall cease to apply to DTE Coal's use of documents and
information furnished by NSC hereunder concerning the Coal Inventory purchased
by DTE Coal at the Closing pursuant to Section 2.4.
SECTION 8.4 Required Disclosure. Any Party required by Law or in the
course of administrative or judicial proceedings, to disclose information that
is otherwise required to be maintained in confidence pursuant to this Article
VIII, may make disclosure notwithstanding the provisions of this Article;
provided, however, that the Party making the disclosure shall give prior notice
to the other Party of the requirement and the terms thereof and shall cooperate
to the maximum extent practicable to minimize the disclosure of the information.
The Party disclosing such information shall use reasonable efforts, at the other
Party's cost, to obtain proprietary or confidential treatment of such
information
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by the third party to whom the information is disclosed, and to the extent such
remedies are available, shall use reasonable efforts to seek protective orders
limiting the dissemination and use of the information at the other Party's cost.
Moreover, this Agreement does not alter the rights of either Party to object to
the Law or proceedings requiring the disclosure.
SECTION 8.5 Waiver. Any term or condition of this Agreement may be waived
at any time by the Party that is entitled to the benefit thereof, but no such
waiver shall be effective unless set forth in a written instrument duly executed
by both Parties. The failure or delay of either Party to require performance by
the other Party of any provision of this Agreement shall not affect its right to
require performance of such provision unless and until such performance has been
waived by such Party in writing in accordance with the terms hereof. No waiver
by either Party of any term or condition of this Agreement, in any one or more
instances, shall be deemed to be or construed as a waiver of the same or any
other term or condition of this Agreement on any future occasion. All remedies,
either under this Agreement or by Law or otherwise afforded, shall be cumulative
and not alternative.
SECTION 8.6 Amendment. No modification or amendment of any provision of
this Agreement shall be valid unless it is in writing and signed by both
Parties.
SECTION 8.7 No Third Party Beneficiary. The terms and provisions of this
Agreement are intended solely for the benefit of each Party and their respective
successors or permitted assigns, and it is not the intention of the Parties to
confer third-party beneficiary rights upon any other Person.
SECTION 8.8 Headings. The headings contained in this Agreement are solely
for the convenience of the Parties and should not be used or relied upon in any
manner in the construction or interpretation of this Agreement.
SECTION 8.9 Invalidity. The invalidity or unenforceability of any
provision of this Agreement shall be determined only by a court of competent
jurisdiction. The Parties hereby agree to use good faith efforts to negotiate an
equitable adjustment to any provision of this Agreement determined to be invalid
or unenforceable with a view toward effecting the purposes of this Agreement,
and the validity or enforceability of the remaining provisions of this Agreement
shall not be affected thereby.
SECTION 8.10 Counterparts. The Parties may execute this Agreement in
counterparts, which shall, in the aggregate, when signed by both Parties
constitute one and the same
13
instrument; and, thereafter, each counterpart shall be deemed an original
instrument as against any Party who has signed it.
SECTION 8.11 Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Michigan.
SECTION 8.12 Effective Date. This Agreement shall be effective from and
after the Closing Date. In the event the Closing Date does not occur by June 30,
1997, either Party may terminate this Agreement by delivering written notice to
the other Party prior to the Closing Date.
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IN WITNESS WHEREOF, NSC and DTE Coal have executed this Agreement by their
duly authorized signatories as of the date first above written.
DTE Coal Services, Inc.
By: /s/ Xxxxx X. Xxxxxx-Xxxxxxx
----------------------------
Name: Xxxxx X. Xxxxxx-Xxxxxxx
Title: Assistant Treasurer
National Steel Corporation
By: /s/ Xxxxxxx X. Xxxxxx
----------------------
Name: Xxxxxxx X. Xxxxxx
Title: Senior Vice President and
General Counsel
