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HomeMy WebLinkAbout01-0265 PARTIES ~nrn~l~Ja~a~ firstifiedNi~al) andmoilingaddress: 4 Cave Hill Drive Carlisle, PA 17013 name (last name first if individual) and mailin~ a~lrec, s: Milacron, Inc. 2000 Disney Street Cincinnati, OH 45209 Debtnc name Ilast name first if individual) and mailing address: Milacron, Inc. 3000 Disney Street Cincinnati, OH 45209 lb Secured Pamy(ies)of Reco~ namse(s)(la~ namefirstif[ndividual) andaddreas~rsecur[tyime~stin~rmafiua: Treibacher Schleifmittel North America, 2000 College Avenue Niagara Falls, NY 14305 2 Special Types of Parties (check if applicable): [] The terms ~Oebtor" and "Secured Party" mean "Lessee" and "Lessor," respectively. [~ The terms "Debtor" and "Secured Party" mean "Consignee" and "Consignor," respectively. ~Oebt~S'~Trans~m~ting Utdit(Y~~---Tc--~ ~ ~~ 3 % SIGNATURE{S) O Debtor Signature(s) (only if Amendment): FINANCING STAI~MENT CHANGE Uniform Commercial Code F~rm UCC-3 IMPORTANT-Please mad instructions on reverse side of page 4 bofom completing filing No. {stamped by firing officer): Date, Time, Filing Office (stamped by firing officer): This Financing Statement Change is presented for firing pursuant' and is to be filed with the (check applicable box): [] Secmtery of the Commom~ealth. ~] Prothonotary of C~'~tber ].a~d [] Real Estate Records of Num~nc of Additinaal Sheets (if any): Optional Special Ideflt'd'~cation {Max. f 0 characters): to the-Uniform Commamial Code, County. County. 6 7 8 ORIGINAl. FINANCING STATEMENT BEING CHANGED This Financing Statement Change relates to an original Financing Statement No. 96-229 filed with the: ~] Secretary of the Commonwealth on (date) E~Prothonotary ef Cu~berla~A County on (date) 1/18/96 [] final Estate Records of County on (datel DESCRIPTION OF FINANCING STATEMENT CHANGE ~ Continuation - The original Financing Statement identified above is still effective. [~ Termination - The Secured Party of Record no longer claims a security interest under the origin Financing Statement identified above. E:] Release - The Secured Party of Record has released the collsteral described in block 11 from ti collsteral covered by the ori9iual Financing Statement [dentdied above, (~ Assignment * The Secured Party of Reco~d has assigned to the Assignee, whose name and addre are contained in block 1 1, rights in the collateral described in block t f under the original Fiuanci Statement identified above. [~ Amendment * The original Financing Statement identified above is amended as set forth in hie 11 (signatures of 0ehter and Secured Party of Record are required). Description of cQgateral released, rights assigned, Assignee (name and address}, or amendment indicated in block 10): Approved by Secretary of Commonwealth of Pennsytvania (1) FILING OFFICE ORIGINAL ~ - l%ie Image ~ill nat be mtum~ ~ the Delmrtmant of State, RETURN RECEIPT TO: Treibacher Schleifmittel North America, Inc. Attn: Liz Bignell 2000 College Avenue Niagara Falls, NY 14305 TREIBACHER SCHLEIFMI'rfEL NORTH AMERICA O TREIBACHER CONSIGNMENT STOCK AGREEMENT THIS CONSIGNMENT STOCK AGREEMENT is made this ~ , day of o I , 20 ct, by and between Milacron, Inc. an Ohio corporation ("Buyer"), and Treibacher Schleifmittel North America, Inc., a New York corporation ("Seller"). NOW, THEREFORE, it is agreed whereby the parties hereto establish a consignment stock of Abrasive Grain (the "Consignment Stock") manufactured by Seller, for the purpose of providing Buyers easy and speedy access to the Consignment Stock for use in Buyers' operations at their facilities, in accordance with the terms and conditions set forth in this Agreement. 1. Storable. Buyers will provide suitable, dry, secure, and otherwise appropriate space for the Consignment Stock at Buyer's own expense, assuming all risks relative to the storage of the Consignment Stock, its use and transportation within Buyers' premises. Consignment Stock in all cases shall be carefully segregated from other goods either of the same or different character belonging either to Buyers or to any third person, and shall be stored in an area on Buyers' premises separate from and not mingled with other goods of Buyers or of any third person. All charges and expenses for receiving, loading, hauling, unloading, handling, and storing Consignment Stock in or into consignment shall be paid by Buyers. 2. Title. Title to each item comprising the Consignment Stock shall remain with Seller until such item is withdrawn and purchased by Buyers pursuant to this Agreement, at which time title shall pass to Buyers. Until withdrawn for such use, the Consignment Stock shall be stored in labeled areas, visibly marked as consigned matedal that is the property of Seller. 3. Records; Seller's Right of Inspection. Buyers shall maintain an accurate record of all shipments and withdrawals of the Consignment Stock, which records shall be kept up-to-date on a continuing basis, copies of which will be forwarded to Seller upon request. Seller shall have the right to inspect the Consignment Stock and take a physical inventory during normal business hours upon advance notice in order to ascertain whether Buyers are maintaining the Consignment Stock in accordance with the provisions of this Agreement. 4. Withdrawals and Purchases (a) From time to time, as any Buyer shall purchase Consignment Stock from Seller, Seller may withdraw the Consignment Stock so purchased and take delivery thereof from Seller's Consignment Stock. 2000 College Avenue ,, M.P.O. Box 1438 * Niagara Falls, New York 14302 1-(800) 294-8872 · Tel. (716) 286-1250 · Fax (716) 286-1251 (b) Buyers shall notify Seller in writing within five business days of each month of quantities withdrawn from the Consignment Stock during the previous month, which should include beginning inventory and receipts less usage. On a monthly basis, Seller shall thereupon invoice Buyer for the Consignment Stock so reported as withdrawn, as per the terms and conditions set forth herein and as printed on Seller's standard sales memoranda forms. In the event of a conflict between the terms of this Agreement and the terms of Seller's standard sales memoranda forms, the terms of this Agreement shall prevail. All differences in material balances shall be immediately invoiced to Buyer and are payable under regular payment terms. (c) Any quantity of the Consignment Stock meeting the agreed upon specifications, not withdrawn for use by Buyers, and not returned to Seller's factory at Buyers' sole cost and expense in accordance with Section 4(e) hereof, within ninety days [90] days after it has been shipped to Seller in care of Buyer, shall be deemed to be withdrawn and sold to Buyers and shall be invoiced by Seller and payable under regular payment terms. (d) The Buyer will endeavor to maintain a consigned inventory level that provides the necessary service to Buyer's customers, while recognizing that the level of inventory investment must be reasonable. This inventory must be monitored for excess/obsolescence and the Buyer agrees to target inventory turnover of 8 times per year. (e) Upon the termination of this Agreement, all Abrasive Grain remaining in the Consignment Stock, and not returned to Seller's factory at Buyers' sole cost and expense within thirty [30] days of such termination, shall be deemed withdrawn and sold to Buyers and shall be invoiced by Seller. (f) No Abrasive Grain which has been withdrawn from the Consignment Stock or otherwise delivered to Buyers may be returned to Seller for credit or exchange for other quantities or qualities of Abrasive Grain without Seller's prior written approval. 5. Shipments, (a) Seller shall establish the Consignment Stock by consigning and shipping to itself in care of Buyers an initial quantity of various material meeting the agreed upon specifications in such quantities as shall enable Seller to satisfy Buyers' requirements for Consignment Stock for a one month period. (b) Thereafter, to keep the Consignment Stock replenished, Seller will cause to be shipped to itself in care of Buyers, from time to time, such additional quantities of Consignment Stock as, together with Consignment Stock previously shipped and not then withdrawn for use by Buyers, shall enable Seller to satisfy Buyers' requirements for Consignment Stock. lc) Notwithstanding the foregoing, in no event shall Seller be obligated to ship any Consignment Stock to any facility or facilities of Buyers, except in full truckloads (20 short tons), either mixed sizes or single sizes, for each facility. Any shortage in the quantity of Consignment Stock on hand at any facility of a Buyer at any time as a result of the immediately preceding sentence shall be satisfied by Seller, only at such time as the quantity required to be shipped by Seller to such facility pursuant to the terms of this Section shall constitute a full truckload. (d) Buyer shall be required to give advance written notice to Seller in the event that the Buyer changes the location site of the Consignment Stock. 6. Risk of Loss. Buyers shall apply the care of a prudent manufacturer to the Consignment Stock within its facilities. Buyers will assume all risk for loss of, or damage to, such Consignment Stock. 7. Shipping Advices. All advices referring to the Consignment Stock must cleady show that they refer to such Consignment Stock only. 8. Losses in Transit. Any claim by Buyers for shortage, or damage or loss in transit, must be made with the carrier when shipment is received by a Buyer at its facilities on behalf of Seller. 9. Insurance. Buyers shall procure and maintain in effect at all times a policy or policies of property insurance in form satisfactory to Seller, naming Seller as an insured, and insudng at full replacement cost all property of Seller in Buyers' possession or on their premises, against loss from fire, the pedls of extended coverage, vandalism, malicious mischief, sprinkler leakage and crime. I0. Laws. Buyers shall comply with all laws which might in any way affect Seller's ownership of the Consignment of the Consignment Stock and shall indemnify and save harmless Seller from and against all loss, damage, and expense arising out of any levy, attachment, lieh, or process involving the Consignment Stock. Buyers shall be responsible for, and shall indemnify Seller against any loss or shrinkage in the quantity of Consignment Stock while stored at Buyers' facilities, whether such loss or shrinkage be through theft, pilferage, deterioration, or otherwise. 11. U.C.C. Financing Statements. To record its ownership of Abrasive Grain on consignment under this Agreement, Seller will file U.C.C. financing statements and may from time to time file such other statements, notices and instruments under applicable law covering Consignment Stock as it determines are necessary. For such purpose, upon the signing of this Agreement, Buyers shall execute and deliver to Seller U.C.C. financing statements, and such other statements, notices and instruments under applicable law as Seller shall from time to time request. Each Buyer hereby irrevocably appoints Seller as its attorney-in-fact to execute such U.C.C. financing statements and 3 such other statements, notices and instruments under applicable law on such Buyer's behalf as Seller shall require if such Buyer shall fail to execute the same promptly after demand. Buyers' acknowledge that such appointment is coupled with an interest and is therefore irrevocable for so long as any Consignment Stock is in the possession of any Buyer. 12. Confidenaalitv. (a) Each party shall keep in stdct confidence and secrecy the fact and the content of this Agreement and shall not disclose the same to any firm or person whatsoever dudng the term of this Agreement. (b) Each party agrees to limit the dissemination of confidential information of the other to only those of its affiliates, directors, officers, employees and authorized agents whose access to such information is necessary for the proper discharge of their functions and responsibilities, and further agrees to take any and all reasonable safeguards so as to protect the secret and proprietary nature of such information and to prevent the unauthorized use, reproduction, disclosure or other dissemination thereof. (c) Nothing contained herein shall restrict any party hereto from disclosing any such information if such disclosure is required by applicable law, regulation or court order. 13. Rights on Early Termination. If any Buyer (a) shall default in the payment of any invoice or in the performance of any other duty, obligation or condition imposed upon it by virtue hereof, (b) an execution shall be issued against any Buyer, (c) a petition shall be filed either by or against any Buyer for the appointment of a receiver in equity of such Buyer or any of its properties, or (d) if any Buyer shall become insolvent or make an assignment for the benefit of its creditors, then, and in any of such events, Seller may forthwith, or at any time thereafter, terminate this Agreement by notifying Buyer in writing of its election so to do, and Buyers' rights to withdraw Abrasive Grain from the Consignment Stock shall thereupon immediately cease and terminate. Any withdrawal permitted by Seller after the occurrence of an event of default described in this Section shall not constitute a waiver by Seller of any provision of this Agreement, except in respect of the permitted withdrawal. Additionally, Seller may terminate this Agreement at any time and for any reason, by giving 30 days advance written notice to Buyer. 14. AssiQnment; Sale of Assets. Neither the Buyer nor Seller shall assign this Agreement or any rights hereunder or any monies due or to become due hereunder without the prior written consent of the other party. 15. Force Majeure. In the event any of Buyers or Seller is unable to perform its obligations, either in whole or in part, under the terms of this Agreement as a result of an Act of God, or any other condition or cause beyond its control, said causes being hereafter referred to as Force Majeure, the quantities so affected shall be eliminated from this Agreement without liability, but this Agreement shall otherwise remain unaffected. During any period where Seller's performance of this Agreement is made impracticable by reason of a Fome Majeure situation, Seller shall allocate any available goods for delivery in any manner which is fair and reasonable, consistent with the provisions of Section 2-615 of the Uniform Commemial Code. 16. Coml31ete A~lreement; Amendments; Waiver. This Agreement contains the complete and entire agreement between the parties hereto, and supersedes any previous communications, representations or agreements, whether verbal or written, with respect to the subject matter hereof. No change, addition or modification of any of the terms or conditions hereof shall be valid or binding on either party unless in writing signed by each of the parties hereto. Any waiver by a party of any provision of this Agreement shall not be construed or deemed to be a waiver of any other provision or condition of this Agreement nor a waiver of a subsequent breach of the same provision or condition. 17. Headings, Section headings as to the contents of particular Sections are for convenience only and are in no way to be construed as part of this Agreement or as a limitation of the scope of the particular Sections to which they refer. 18. Governin~ Law. This Agreement shall be governed by, and construed in accordance with, the internal laws of the State of New York. 19. Notice. All consents, notices, requests, demands and other communications required or permitted to be given or made under this Agreement shall be in writing and shall be deemed to have been given (a) on the date of personal delivery or (b) provided such notice, request, demand or communication is actually received by the party to which it is addressed in the ordinary course of delivery, on the date of (i) deposit in the United States mail, postage prepaid, by registered or certified mail, return receipt requested, (ii) transmission by telegram, cable, telex or facsimile transmission, or (iii) delivery to a nationally-recognized overnight courier service, in each case, addressed as follows, or to such other person or entity as either party shall designate by notice to the other in accordance herewith: 5 If to Buyers: If to Seller: Treibacher Schleifmittel North America, Inc. M.P.O. Box 1438, 2000 College Avenue Niagara Falls, New York 14302 Attn: Liz Bk]nell IN WITNESS WHEREOF, the parties have caused this Agreement to be executed in duplicate on the day and year first indicated above. Treibacher Schleifmittel North America, Inc. ~am~ (T,tle) Milacmn, Inc. · (Name) (Title) 6