FORM 10-Q
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
(Mark One)
X QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the quarterly period ended June 28, 1997
OR
TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the transition period from ______________to ______________.
Commission File No. 0-22416
KENTUCKY ELECTRIC STEEL, INC.
(Exact name of Registrant as specified in its charter)
Delaware 61-1244541 (State or
other jurisdiction of (I.R.S. Employer incorporation or
organization) Identification
Number)
P. O. Box 3500, Ashland, Kentucky 41105-3500
(Address of principal executive office, Zip Code)
(606) 929-1222
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act
of 1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to
such filing requirements for the past 90 days.
YES x NO
The number of shares outstanding of each of the issuer's classes of common
stock, as of August 11, 1997, is as follows:
4,624,995 shares of voting common stock, par value $.01 per share.
<PAGE>
KENTUCKY ELECTRIC STEEL, INC. AND SUBSIDIARY
TABLE OF CONTENTS
Page
PART I. FINANCIAL INFORMATION
Item 1 - Financial Statements
Condensed Consolidated Balance Sheets ........... 3
Condensed Consolidated Statements of Operations.. 4
Condensed Consolidated Statements of Cash Flows.. 5
Notes to Condensed Consolidated Financial
Statements ..................................... 6-7
Item 2 - Management's Discussion and Analysis of Financial
Condition and Results of Operations ........... 8-11
PART II. OTHER INFORMATION
Item 6 - Exhibits and Reports on Form 8-K ................ 12
SIGNATURES ...................................... 13
<PAGE>
<TABLE>
KENTUCKY ELECTRIC STEEL, INC. AND SUBSIDIARY
CONDENSED CONSOLIDATED BALANCE SHEETS
(Dollars in Thousands)
(Unaudited)
June 28, Sept. 28,
1997 1996
<S> <C> <C>
ASSETS
CURRENT ASSETS
Cash and cash equivalents $ 121 $ 124
Accounts receivable, less allowance for doubtful
accounts and claims of $560 at June 28, 1997
and $390 at September 28, 1996 9,942 12,113
Insurance claim receivable 2,900 -
Inventories 14,628 17,367
Operating supplies and other current assets 5,138 5,067
Refundable income taxes 800 540
Deferred tax assets 343 680
------- -------
Total current assets 33,872 35,891
------- -------
PROPERTY, PLANT AND EQUIPMENT
Land and buildings 4,448 4,353
Machinery and equipment 38,897 37,774
Construction in progress 2,679 1,412
Less - accumulated depreciation (10,337) (7,852)
------- -------
Net property, plant and equipment 35,687 35,687
------- -------
DEFERRED TAX ASSETS 7,659 6,263
------- -------
OTHER ASSETS 763 592
------- -------
Total assets $ 77,981 $ 78,433
LIABILITIES AND SHAREHOLDERS' EQUITY
CURRENT LIABILITIES
Advances on line of credit $ 8,193 $ 7,546
Accounts payable 8,030 7,214
Capital expenditures payable 692 2,404
Accrued liabilities 3,047 3,639
Environmental liabilities 3,500 -
Current portion of long-term debt 125 125
------- -------
Total current liabilities 23,587 20,928
------- -------
LONG-TERM DEBT 20,000 20,000
------- -------
OTHER LIABILITIES 544 395
------- -------
Total liabilities 44,131 41,323
------- -------
SHAREHOLDERS' EQUITY
Preferred stock, $.01 par value, 1,000,000
shares authorized, no shares issued - -
Common stock, $.01 par value, 15,000,000
shares authorized, 4,975,971 and 4,974,099
share issued, respectively 50 50
Additional paid-in capital 15,720 15,710
Less treasury stock - 350,976 and 273,000
shares at cost, respectively (2,638) (2,165)
Deferred compensation (220) (421)
Retained earnings 20,938 23,936
------- -------
Total shareholders' equity 33,850 37,110
------- -------
Total liabilities and shareholders' equity $ 77,981 $ 78,433
<FN>
See notes to condensed consolidated financial statements
</TABLE>
<PAGE>
<TABLE>
KENTUCKY ELECTRIC STEEL, INC. AND SUBSIDIARY
CONDENSED CONSOLIDATED STATEMENTS OF OPERATIONS
(Dollars in Thousands, Except Per Share Data)
(Unaudited)
Three Months Ended Nine Months Ended
June 28, June 29, June 28, June 29,
1997 1996 1997 1996
<S> <C> <C> <C> <C>
NET SALES $ 22,724 $ 26,483 $ 69,265 $ 74,796
COST OF GOODS SOLD 20,354 23,814 67,365 67,104
------- ------- ------- -------
Gross Profit 2,370 2,669 1,900 7,692
SELLING AND ADMINISTRATIVE EXPENSES 1,761 1,819 5,144 5,806
------- ------- ------- -------
Operating income (loss) 609 850 (3,244) 1,886
INTEREST INCOME AND OTHER 9 5 20 24
INTEREST EXPENSE (545) (343) (1,593) (1,116)
GAIN ON INVOLUNTARY CONVERSION
OF EQUIPMENT - - - 369
------- ------- ------- -------
Income (loss) before income taxes 73 512 (4,817) 1,163
PROVISION (CREDIT) FOR INCOME TAXES 28 193 (1,819) 439
------- ------- ------- -------
Net income (loss) $ 45 $ 319 $ (2,998) $ 724
NET INCOME (LOSS) PER COMMON SHARE $ .01 $ .07 $ (.65) $ .15
WEIGHTED AVERAGE SHARES OUTSTANDING 4,622,062 4,790,885 4,636,370 4,831,054
<FN>
See notes to condensed consolidated financial statements
</TABLE>
<TABLE>
KENTUCKY ELECTRIC STEEL, INC. AND SUBSIDIARY
CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS
(Dollars in Thousands)
(Unaudited)
Nine Months Ended
June 28, June 29,
1997 1996
<S> <C> <C>
Cash Flows From Operating Activities:
Net income (loss) $ (2,998) $ 724
Adjustments to reconcile net income to net
cash flows from operating activities:
Depreciation and amortization 2,755 1,990
Gain on involuntary conversion of equipment - (369)
Change in deferred taxes (1,397) 976
Change in other (91) (259)
Change in current assets and current
liabilities:
Accounts receivable 2,171 (929)
Insurance claim receivable (2,900) -
Inventories 2,739 2,789
Operating supplies and other
current assets (71) 62
Deferred tax assets 337 (3)
Accounts payable 816 (278)
Accrued liabilities (592) (857)
Environmental liabilities 3,500 -
Accrued income taxes refundable/payable (260) (447)
------- -------
Net cash flows from operating activities 4,009 3,399
------- -------
Cash Flows From Investing Activities:
Proceeds from involuntary conversion of equipment - 912
Capital expenditures (2,485) (8,412)
Change in capital expenditures payable (1,712) 292
------- -------
Net cash flows from investing activities (4,197) (7,208)
------- -------
Cash Flows From Financing Activities:
Net advances (repayments) on line of credit 647 (6,749)
Repayments on long-term debt - (9,001)
Proceeds from long-term debt borrowings - 20,000
Purchases of treasury stock (473) (643)
Net proceeds from issuance of common stock 10 -
------- -------
Net cash flows from financing activities 184 3,607
------- -------
Net decrease in cash and
cash equivalents (4) (202)
Cash and Cash Equivalents at Beginning of Period 125 327
------- -------
Cash and Cash Equivalents at End of Period $ 121 $ 125
Interest Paid, net of amount capitalized $ 1,213 $ 955
Income Taxes Paid $ - $ 297
<FN>
See notes to condensed consolidated financial statements
</TABLE>
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
KENTUCKY ELECTRIC STEEL, INC. AND SUBSIDIARY
(1) Basis of Presentation
The accompanying unaudited condensed consolidated financial statements
represent Kentucky Electric Steel, Inc. and its wholly-owned subsidiary,
KESI Finance Company, (the Company). KESI Finance Company was formed in
October 1996 to finance the Ladle Metallurgy Project. All significant
intercompany accounts and transactions have been eliminated. These
statements have been prepared in accordance with generally accepted
accounting principles for interim financial information and the
instructions to Form 10-Q and Article 10 of Regulation S-X. Accordingly,
they do not include all of the information and footnotes required by
generally accepted accounting principles for complete financial statements.
In the opinion of management, all adjustments (consisting of normal
recurring adjustments) considered necessary for a fair presentation have
been included. Operating results for the nine-month period ended June 28,
1997, are not necessarily indicative of the results that may be expected
for the year ended September 27, 1997. For further information, refer to
the financial statements and footnotes thereto included in the Company's
annual report on Form 10-K for the year ended September 28, 1996.
Net income per common share is calculated based on 4,622,062 and
4,790,885 weighted average number of common shares outstanding during the
quarters ended June 28, 1997, and June 29, 1996, respectively. Net income
per common share is calculated based on 4,636,370 and 4,831,054 weighted
average number of shares outstanding for the nine months ended June 28,
1997 and June 29, 1996, respectively.
(2) Accounting Policies
Fiscal Year End
The Company's fiscal year ends on the last Saturday of September.
Property, Plant, Equipment and Depreciation
Property, plant and equipment is recorded at cost, less accumulated
depreciation. For financial reporting purposes, depreciation is provided
on the straight-line method over the estimated useful lives of the assets,
generally 3 to 12 years for machinery and equipment and 15 to 30 years for
buildings and improvements. Depreciation for income tax purposes is
computed using accelerated methods. Expenditures for maintenance and
repairs are charged to expense as incurred. Expenditures for equipment
renewals which extend the useful life of any asset are capitalized.
The Company capitalizes interest costs as part of the historical cost
of constructing major capital assets. Interest cost of $75,000 was
capitalized for the quarter ended June 29, 1996. Interest costs of
$11,000 and $159,000 were capitalized for the nine months ended June 28,
1997 and June 29, 1996, respectively.
(3) Inventories
Inventories at June 28, 1997 and September 28, 1996 consist of the
following ($000's):
June 28, September 28,
1997 1996
Raw materials $ 3,441 $ 4,069
Semi-finished and finished goods 11,187 13,298
Total inventories $ 14,628 $ 17,367
(4) Long-Term Debt
The Company's unsecured senior notes and bank credit facility
agreements were amended, effective December 28, 1996, to reduce the
required fixed charge coverage ratio, increase the minimum net worth
requirement and revise other miscellaneous provisions of the agreements.
In connection with the amendment, the amount of the Company's unsecured
bank credit facility has been reduced from $24.5 million to $17.5 million.
With this amendment, the Company continues to be in compliance with the
financial covenants and management believes it is probable that the Company
will continue to be in compliance with the amended covenants.
(5) Insurance Claim Receivable and Environmental Liabilities
During the quarter ended June 28, 1997, the Company's melt shop
operations were shut down for twelve days in order to decontaminate its
baghouse facilities, after detection of a radioactive substance in the
baghouse dust, a by-product of the melting process. The financial
statements include a receivable of $2.9 million which represents the
estimated balance due from the insurance carrier on the total projected
reimbursement of $6.9 million, which covers the costs incurred in the
radiation contamination clean-up, the disposal cost, and business
interruption. To date the Company has received $4.0 million from the
insurance carrier as an advance payment for costs incurred. The
accompanying statements of operations for the quarter and nine months ended
June 28, 1997 include $2.3 million of reimbursement for business
interruption in the calculation of cost of goods sold.
The $3.5 million in environmental liabilities recorded as a current
liability on the balance sheet represents approximately $1.0 million in
clean-up costs which have been incurred but unpaid as of June 28, 1997, and
$2.5 million in estimated disposal costs. Through June 28, 1997, the
Company has paid $1.2 million in clean-up costs. The estimated disposal
costs are based upon a signed contract with an environmental services
company for removal, transportation, treatment, and disposal of the
contaminated baghouse dust. The contaminated baghouse dust will be shipped
offsite by August 15 and payment for the disposal will occur within the
next twelve months. These costs are covered by the radiation contamination
insurance with the exception of a $100,000 deductible which has been
reflected as a reduction of the insurance claim receivable and expensed
during the current period. Although it is possible that the ultimate
disposal costs may change from current estimates, the effect of the change
would not be material to the financial statements due to the sufficiency of
insurance coverage.
(6) Commitments and Contingencies
The Company has various commitments for the purchase of materials,
supplies and energy arising in the ordinary course of business.
The Company is subject to various claims, lawsuits and administrative
proceedings arising in the ordinary course of business with respect to
commercial, product liability and other matters, which seek remedies or
damages. The Company believes that any liability that may ultimately be
determined will not have a material effect on its financial position or
results of operations.
The Company generates both hazardous wastes and non-hazardous wastes
which are subject to various governmental regulations. Estimated costs to
be incurred in connection with environmental matters are accrued when the
prospect of incurring costs for testing or remedial action is deemed
probable. The Company is not aware of any material asserted or unasserted
environmental claims against the Company and no accruals for such matters
have been recorded in the accompanying balance sheets except as disclosed
in Note 5. However, discovery of unknown conditions could result in the
recording of accruals in the periods in which they become known.
<PAGE>
KENTUCKY ELECTRIC STEEL, INC. AND SUBSIDIARY
MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS
General. The Company manufactures special bar quality alloy and
carbon steel bar flats to precise customer specifications for sale in a
variety of niche markets. Its primary markets are manufacturers of leaf-
spring suspensions, cold drawn bar converters, flat bed truck trailers, and
steel service centers.
Net Sales. Net sales decreased $3.8 million (14.2%) in the third
quarter of fiscal 1997 to $22.7 million, as compared to $26.5 million for
the third quarter of fiscal 1996. The decrease in net sales is attributed
to a 17.1% decrease in shipments (discussed below) which is partially
offset by a 3.5% increase in average selling price. The increase in
average selling price reflects the price increases implemented on many
products during the quarter, slightly offset by continued downward pricing
pressures in the spring and commodity square edge markets.
Net sales for the nine months ended June 28, 1997 decreased $5.5
million (7.4%) to $69.3 million, as compared to $74.8 million for the nine
months ended June 29, 1996. The decrease in net sales is primarily
attributed to a 6.0% decrease in shipments (discussed below) and to a
lesser degree a decrease in average selling price. The decrease in average
selling price is attributed to a change in product mix and downward pricing
pressures in the spring and commodity square edge markets.
Shipments for the quarter and nine months ended June 28, 1997 were
negatively impacted by the effect on production of the melt shop operations
being shut down for twelve days in order to decontaminate the baghouse
facility, after the detection of a radioactive substance in the baghouse
dust. The resulting shortage of billets idled the rolling mill for
approximately seven days and negatively impacted rolling mill productivity
for several weeks. The Company has recorded $3.5 million in environmental
liabilities as a current liability on the balance sheet which represents
approximately $1.0 million in clean-up costs which have been incurred but
unpaid as of June 28, 1997, and $2.5 million in estimated disposal costs.
Through June 28, 1997, the Company has paid $1.2 million in clean-up costs.
The estimated disposal costs are based upon a contract with an
environmental services company for removal, transportation, treatment, and
disposal of the contaminated baghouse dust. The contaminated baghouse dust
will be shipped offsite by August 15 and payment for the disposal will
occur within the next twelve months. These costs are covered by the
radiation contamination insurance with the exception of a $100,000
deductible which has been expensed during the current period. Although it
is possible that the ultimate disposal costs may change from current
estimates, the effect of the change would not be material to the financial
statements due to the sufficiency of insurance coverage.
Cost of Goods Sold. Cost of goods sold decreased $3.5 million (14.5%)
in the third quarter of fiscal 1997 to $20.3 million, as compared to $23.8
million for the third quarter of fiscal 1996. As a percentage of net
sales, cost of goods sold decreased from 89.9% for the three months ended
June 29, 1996 to 89.6% for the three months ended June 28, 1997. This
decrease in the cost of goods sold percentage reflects the increase in
average selling price offset by an increase in per ton costs. The increase
in per ton costs is attributed to higher conversion costs, additional
depreciation related to the start-up of the ladle metallurgy and casting
facilities and a slight increase in health benefit costs, which has been
partially offset by a decrease in material costs. The increase in
conversion costs was primarily attributed to lower production during the
quarter resulting from the shut down of the melt shop operations for twelve
days for decontamination of the baghouse facility. The resulting shortage
of billets idled the rolling mill for approximately seven days and
negatively impacted rolling mill productivity for several weeks. The
increase in conversion costs associated with the decontamination of the
baghouse has been offset by the inclusion of the $2.3 million reimbursement
from business interruption in the calculation of cost of goods sold.
Cost of goods sold for the nine months ended June 28, 1997 increased
$.3 million (.4%) to $67.4 million as compared to $67.1 million for the
nine months ended June 29, 1996. As a percentage of net sales, cost of
goods sold increased from 89.7% for the nine months ended June 29, 1996 to
97.3% for the nine months ended June 28, 1997. The increase in cost of
goods sold is due to higher conversion costs and additional depreciation
related to the start-up of the ladle metallurgy and casting facilities,
which has been partially offset by a decrease in material costs.
Conversion costs for the first nine months of fiscal 1997 were adversely
impacted by lower production during the third quarter as discussed in the
preceeding paragraph and by the shutdown and restart of the caster during
the second quarter. The caster was shut-down for 10 days in late December
and early January to allow for repairs to be made. At the same time, the
Company converted an additional caster strand to allow for increased
production of thicker, wider products. Also adversely impacting conversion
costs, although to a lesser degree, was an increase in repair and
maintenance cost, supply cost, health benefit cost and the continued start-
up phase of the new ladle metallurgy facility, which came on-line in the
fourth quarter of fiscal 1996. The nine months ended June 29, 1996
includes a $1.7 million reimbursement from business interruption insurance,
related to the caster fire, in the calculation of cost of goods sold. The
nine months ended June 28, 1997 includes $2.3 million reimbursement from
business interruption insurance, related to the decontamination of the
baghouse, in the calculation of cost of goods sold.
Gross Profit. As a result of the above, gross profit for the third
quarter of fiscal 1997 decreased by $.3 million (11.2%) to $2.4 million
from $2.7 million for the third fiscal quarter of 1996. As a percentage of
net sales, gross profit increased from 10.1% for the three months ended
June 29, 1996 to 10.4% for the three months ended June 28, 1997.
As a result of the above, gross profit for the nine months ended June
28, 1997 decreased $5.8 million (75.3%) to $1.9 million as compared to $7.7
million for the nine months ended June 29, 1996. As a percentage of net
sales, gross profit decreased from 10.3% for the nine months ended June
29, 1996 to 2.7% for the nine months ended June 28, 1997.
Selling and Administrative Expenses. Selling and administrative
expenses include salaries and benefits, corporate overhead, insurance,
sales commissions and other expenses incurred in the executive, sales and
marketing, shipping, personnel, and other administrative departments.
Selling and administrative expenses decreased by approximately $58,000 for
the three months ended June 28, 1997 as compared to the comparable period
in fiscal 1996. As a percentage of net sales, such expenses increased from
6.9% for the three months ended June 29, 1996 to 7.7% for the three months
ended June 28, 1997. The increase, as a percentage of sales, is primarily
the result of a decrease in shipments (as discussed above) resulting in
lower net sales for the quarter ended June 28, 1997 while selling and
administrative expenses only declined slightly. The decrease in selling
and administrative expenses is attributed to a reduction in the provision
for uncollectible accounts (which was higher in the prior period due to
problems with certain specific accounts) and a decrease in other
miscellaneous expenses offset by an increase in health benefit costs.
Selling and administrative expenses decreased by $.7 million for the
nine months ended June 28, 1997 as compared to the comparable period for
fiscal 1996. As a percentage of net sales, such expenses decreased from
7.8% for the nine months ended June 29, 1996 to 7.4% for the nine months
ended June 28, 1997. The decrease is primarily the result of a reduction
in the provision for uncollectible accounts (which was higher in the prior
period due to problems with certain specific accounts) and a decrease in
legal and professional fees.
Operating Income. For the reasons described above, operating income
decreased by $.3 million (28.4%) from $.9 million in the third quarter of
fiscal 1996 to $.6 million in the third quarter of fiscal 1997. As a
percentage of net sales, operating income decreased from 3.2% in the third
quarter of 1996 to 2.7% in the third quarter of 1997.
The nine months ended June 28, 1997 reflected an operating loss of
$3.2 million as compared to operating income of $1.9 million for the nine
months ended June 29, 1996. As a percentage of net sales operating income
decreased from 2.5% for the nine months ended June 29, 1996 to (4.7%) for
the nine months ended June 28, 1997.
Interest Expense. Interest expense increased by $202,000 for the
three months ended June 28, 1997 from $343,000 for the third quarter of
fiscal 1996 to $545,000 for the third quarter of fiscal 1997, net of
interest capitalized of $75,000 for the third quarter of fiscal 1996.
Interest expense for the nine months ended June 28, 1997 increased $477,000
from $1.1 million for the nine months ended June 29, 1996 to $1.6 million
for the nine months ended June 28, 1997, net of interest capitalized of
$159,000 and $11,000, respectively. The increase in interest expense was
attributed to the additional debt incurred in financing the capital
expansion projects and the reduction of capitalized interest due to the
completion and start-up of the ladle metallurgy facility.
Gain on Involuntary Conversion of Equipment. As a result of the
caster fire, during the second quarter of fiscal 1996, the Company received
insurance proceeds of $912,000 for the replacement cost of the equipment
destroyed which had a net book value of $543,000. The excess of the
replacement cost over the net book value of the equipment destroyed
resulted in a gain of approximately $369,000.
Net Income. As a result of the above, net income decreased by
$274,000 (85.9%) for the three months ended June 28, 1997 from $319,000 for
the third quarter of fiscal 1996 to $45,000 for the third quarter of fiscal
1997.
As a result of the above, the nine months ended June 28, 1997
reflected a net loss of $3.0 million as compared to net income of $.7
million for the nine months ended June 29, 1996.
Liquidity and Capital Resources.
The cash flows provided from operating activities were $4.0 million
for the first nine months of fiscal 1997 as compared to $3.4 million for
the first nine months of fiscal 1996. The first nine months of fiscal 1997
operating cash flows reflect a reduction in accounts receivable and
inventories. The first nine months of fiscal 1996 operating cash flows
reflect a reduction in inventories.
The cash flows used by investing activities were $4.2 million for the
first nine months of fiscal 1997 as compared to $7.2 million for the first
nine months of fiscal 1996. The first nine months of fiscal 1997 investing
cash flows reflect capital expenditures of $2.5 million and payments on
capital expenditures payable of $1.7 million. The first nine months of
fiscal 1996 investing cash flows reflect capital expenditures of $8.4
million which has been offset by an increase in capital expenditures
payable of $.3 million and the proceeds from the involuntary conversion of
equipment of $.9 million.
The cash flows provided from financing activities were $.2 million for
the first nine months of fiscal 1997 as compared to $3.6 million for the
first nine months of fiscal 1996. The cash flows provided from financing
activities for fiscal 1997 reflect net advances of $.7 million on the
Company's line of credit offset by $.5 million for purchase of treasury
stock. The cash flows provided from financing activities for fiscal
1996 reflect net repayments of $6.8 million on the Company's line of
credit, $9.0 million repayment on long-term debt, and $.6 million for
purchase of treasury stock; however, these amounts were offset with the
proceeds of $20.0 million of new long-term debt.
Working capital at June 28, 1997 was $10.3 million as compared to
$15.0 million at September 28, 1996, and the current ratio was 1.4 to 1.0
as compared to 1.7 to 1.0. The decrease in working capital and current
ratio is primarily attributed to a decrease in accounts receivable and
inventories.
The Company's primary ongoing cash requirements are for the payment of
retainage on the capital expansion projects and current capital
expenditures. The two sources for the Company's liquidity are internally
generated funds and its bank credit facility. The Company has $8.2 million
in borrowings outstanding on its line of credit as of June 28, 1997. The
Company believes that the bank credit facility and internally generated
funds will be sufficient to fund its ongoing cash needs through the next
twelve-month period.
Recent Accounting Pronouncements
In February 1997, the Financial Accounting Standards Board issued
Statement No. 128 (SFAS No. 128) related to the computation and
presentation of earnings per share data. Under SFAS No. 128, basic and
diluted earnings per share for the three months and nine months ended June
28, 1997 would have been the same as reported.
Outlook
Management believes the price increases implemented on many products
in March and April have been accepted by the marketplace, however, spring
pricing remains soft. The Company's position in the major markets it serves
combined with productivity improvements and continued strength in the
marketplace should enable the Company to continue to improve operating
results in the coming quarters.
Forward-Looking Statements
The matters discussed or incorporated by reference in this Report on
Form 10-Q that are forward-looking statements (as defined in the Private
Securities Litigation Reform Act of 1995) involve risks and uncertainities.
These risks and uncertainities include, but are not limited to, the
reliance on truck and utility vehicle industry; excess industry capacity;
product demand and industry pricing; volatility of raw material costs,
especially steel scrap; intense foreign and domestic competition;
management's estimate of niche market data; the cyclical and capital
intensive nature of the industry; and cost of compliance with environmental
regulations. These risks and uncertainities could cause actual results of
the Company to differ materially from those projected or implied by such
forward-looking statements.
<PAGE>
PART II. - OTHER INFORMATION
ITEM 6. Exhibits and Reports on Form 8-K
A) Exhibits
3.1 - Certificate of Incorporation of Kentucky ElectricSteel,
Inc., filed as Exhibit 3.1 to Registrant's
Registration Statement on Form S-1 (No. 33-67140), and
incorporated by reference herein.
3.2 - By-Laws of Kentucky Electric Steel, Inc., filed
as Exhibit 3.2 to Registrant's Registration
Statement on Form S-1 (No. 33-67140), and
incorporated by reference herein.
10.15 - Remediation and Waste Disposal Agreement -
Zhagrus Environmental, Inc.
27 - Financial Data Schedule
B) Reports on Form 8-K - None
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the Registrant has duly caused this report to be signed on its behalf by
the undersigned thereunto duly authorized.
DATED: August 12, 1997 KENTUCKY ELECTRIC STEEL, INC.
(Registrant)
William J. Jessie
William J. Jessie, Vice President,
Secretary, Treasurer, and
Principal Financial Officer
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
This schedule contains summary financial information extracted from
Kentucky Electric Steel, Inc.'s condensed consolidated financial statements
as of and for the nine month period ended June 28, 1997 included in this
Company's quarterly report on Form 10-Q and is qualified in its entirety by
reference to such condensed consolidated financial statements.
</LEGEND>
<CIK> 0000910394
<NAME> KENTUCKY ELECTRIC STEEL, INC.
<MULTIPLIER> 1,000
<CURRENCY> U.S. DOLLARS
<S> <C>
<PERIOD-TYPE> 9-MOS
<FISCAL-YEAR-END> SEP-27-1997
<PERIOD-START> SEP-29-1996
<PERIOD-END> JUN-28-1997
<EXCHANGE-RATE> 1
<CASH> 121
<SECURITIES> 0
<RECEIVABLES> 10,502
<ALLOWANCES> 560
<INVENTORY> 14,628
<CURRENT-ASSETS> 33,872
<PP&E> 46,024
<DEPRECIATION> 10,337
<TOTAL-ASSETS> 77,981
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<BONDS> 20,000
<COMMON> 50
0
0
<OTHER-SE> 33,800
<TOTAL-LIABILITY-AND-EQUITY> 77,981
<SALES> 69,265
<TOTAL-REVENUES> 69,265
<CGS> 67,365
<TOTAL-COSTS> 67,365
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 1,593
<INCOME-PRETAX> (4,817)
<INCOME-TAX> (1,819)
<INCOME-CONTINUING> (2,998)
<DISCONTINUED> 0
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<PAGE>
</TABLE>
ZHAGRUS ENVIRONMENTAL, INC.
REMEDIATION AND WASTE DISPOSAL
AGREEMENT
THIS AGREEMENT made and entered into as of this 29th day of July,
1997, by and between ZHAGRUS ENVIRONMENTAL, INC., a Utah corporation,
having its general offices at 46 West Broadway, Suite 240, Salt Lake City,
Utah 84101 (hereinafter called "Zhagrus") and KENTUCKY ELECTRIC STEEL,
INC., having its general offices at U.S. Route 60, Coalton, Kentucky, 41102
(hereinafter called "Customer").
RECITAL:
A. Customer owns certain property and premises commonly known as and
located near Ashland, Kentucky (hereinafter called "the Site") and certain
waste materials (hereinafter called "Waste Material") located at the Site
and as identified in Schedule "A,", attached hereto and made a part hereof.
Customer desires that Zhagrus, an affiliate under common control of
Envirocare of Utah, Inc. (hereafter called Envirocare ) perform, or cause
to be performed by its subcontractors, certain work and services
(hereinafter called "The Work"), as more particularly described in Schedule
"B," attached hereto and made a part hereof, including the disposal of said
Waste Material at that certain waste disposal facility at Clive, Utah
(hereinafter called "The Facility) owned and operated by Envirocare.
Envirocare is under contract with Zhagrus for the treatment, and disposal
of the Waste Material.
B. Attached hereto, reviewed by Customer, and made a part hereof is
Envirocare's license #UT2300249, with amendments, issued by the State of
Utah, and which permits Envirocare to handle and dispose of the Waste
Material. With regard to Waste Material identified in Schedule "A" to be
delivered for both treatment and disposal, there is additionally attached
hereto that certain statement of issuance of Mixed Waste Permit
UTD982598898, with amendments, issued by the State of Utah, and which
permits Envirocare to handle and treat such Waste Material. Said license
and statement of issuance of Mixed Waste Permit are hereinafter
collectively called "Envirocare's License."
C. Zhagrus is capable of performing and/or obtaining the performance
of The Work and acknowledges the toxic nature and physical characteristics
of the Waste Material, as described in Schedule "A," and is willing to
provide or cause to be provided all of The Work, including disposal of the
Waste Material and, where necessary, the treatment of the Waste Material
for disposal, pursuant to all applicable governmental laws, rules and
regulations (hereinafter collectively called the "Regulations") and this
Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and
agreements herein contained, Customer hereby engages Zhagrus to perform and
provide and Zhagrus does hereby agree to so perform and provide The Work as
described in this Agreement and upon the terms and conditions as herein set
forth.
1. SCOPE OF WORK. Zhagrus shall perform or cause to be performed
The Work as described in Schedule "B" and, except with Customer's written
consent, without modification or deviation.
2. COMPLETION OF WORK. Time is of the essence to all aspects of
this Agreement. All Waste Material shall be removed from the Site on or
before August 12, 1997. All tasks comprising The Work shall be completed
on or before the dates set forth in Exhibit B.
3. WASTE MATERIAL.
(a) The Waste Material with regard to which Zhagrus is to perform The
Work is of the type and in the estimated quantities set forth in Schedule
"A." The Components comprising the Waste Material and the parameters that
are acceptable to Envirocare are also set forth in Schedule A. Zhagrus
shall ship the Waste Material for disposal only at The Facility. Zhagrus
shall have no obligation to ship or deliver to The Facility any waste
material which does not in fact conform to and/or comply with Schedule "A"
of this Agreement. If prior to shipment of the Waste Material from the
Site Zhagrus discovers Nonconforming Material (as defined in paragraph 5),
it will, as soon as reasonably possible after discovery, give to Customer a
written notice of the characteristics, conditions and circumstances which
Zhagrus believes constitutes such nonconformity. If Zhagrus is required to
reasonably excavate, handle, move, load or store Non-conforming Material at
the Site in order to have access to the Waste Material and properly perform
The Work, Zhagrus shall then prepare and submit to Customer a proposed
written change order identifying the additional work required to so handle
the Nonconforming Material and the price to be paid by Customer in
consideration for the performance of that additional work. Said
additional work shall not be undertaken until a written change order has
been agreed to and signed by Zhagrus and Customer.
(b) Zhagrus shall not mix or otherwise combine the Waste Material
with any other material or products from any other party or source, load
the same for shipment, or ship the same to Envirocare.
4. TREATMENT. Zhagrus will secure all treatment of any Waste
Material identified in Schedule "A" that must be treated to meet Land
Disposal Restrictions.
5. NONCONFORMING WASTE MATERIAL. Zhagrus shall have no obligation
to ship or deliver to The Facility any waste material which does not in
fact conform to and/or comply with Envirocare's License, the Regulations,
and Schedule "A" of this Agreement. The Waste Material evaluation report
(the "Report") to be delivered to Customer pursuant to Schedule "D" shall
include a list of the components comprising the Waste Material tested for
the Report . Upon receiving notification from Envirocare that waste
material received at the Facility contains a component beyond the
acceptable parameters set forth in Schedule A or components not listed on
the Schedule A and which may not be legally disposed of at The Facility
("Nonconforming Material"), Zhagrus shall give written notification thereof
to Customer, including identification of the Nonconforming Material.
Except as limited or precluded by action or demand of governmental
regulatory authority, said notification to Customer shall be given not less
than five (5) working days after receipt of notification from Envirocare.
Zhagrus contract with Envirocare shall provide that, in the event that
Envirocare discovers any such Nonconforming Material, then Envirocare, at
its sole option: (1) may, at no additional cost to Customer, perform
treatment or further treatment of the Nonconforming Material so to permit
disposal, (2) may remove or cause any Nonconforming Material to be removed
and returned to Customer, or (3) may demand that the Customer remove or
cause the Nonconforming Material to be removed as soon as reasonably
possible. Said Agreement shall provide that Envirocare shall not exercise
any of said options unless it gives not less than ten (10) working days'
prior notice to Zhagrus and to Customer, except where limited or precluded
by action or demand of governmental regulatory authority. Any fines and
penalties levied against Envirocare and generated by Nonconforming Material
and all costs, expenses and/or fees for or resulting from the receipt of
said Nonconforming Material and the preparation for removal and/or removal
of the same, including analysis and handling of the same, shall be paid by
Customer without regard to whether removal is made or caused to be made by
Envirocare or by Zhagrus. Customer shall make payment of all reasonable
costs, expenses and fees in transporting and preparing to transport the
Nonconforming Material from The Facility to the Site. If the return of the
Nonconforming Material to the Site is arranged for by Envirocare or
Zhagrus, it shall be transported by such means of transportation as Zhagrus
shall reasonably select after prior consultation with Customer. The
Contract Price (as defined in paragraph 19) shall be reduced by *** *******
******* ********* per cubic foot of Nonconforming Material which is not
disposed of by Envirocare.
6. DEVELOPMENT AND COMPLETION OF WORK PLAN.
(a) Zhagrus shall prepare all necessary work and safety plans for
performance of the Work including, without limitation, those described in
Schedule B and shall obtain the approval of the plans by Customer and by
Kentucky regulatory authorities prior to the commencement of The Work.
(b) As soon as reasonably possible after Zhagrus determines that The
Work has been completed in full in accordance with this Agreement, it shall
notify Customer in writing of the completion.
7. PACKAGING. Zhagrus shall be responsible for all rolloffs,
packages and containers (hereinafter collectively referred to as
Containers ) and rail cars for shipment of Waste Material to The Facility
and warrants their compliance with the Regulations, including 49 CFR
regulations for radioactive material, and all rules, laws and ordinances
which may be applicable to the safety, packaging, storage, transportation,
and decontamination of such rail cars and Containers.
8. TRANSPORTATION AND DELIVERY. Zhagrus shall transport and
deliver the Waste Material or cause it to be transported and delivered to
The Facility in accordance with the Regulations. Zhagrus shall be
responsible for ********* after ***** **** days after shipment from the
Site on all rail cars and shall return at no additional cost to Customer
all rail cars after decontamination. In the event that the gross weight of
any railcars loaded by Customer (#251586, #242134, #259564, #253912)
exceeds the maximum gross weight limitation of the railroad, Customer shall
reimburse Zhagrus its cost for offloading and repackaging sufficient Waste
Material from any overweight railcar to meet the railroad s gross weight
limitation. In no event, however, shall the total amount of this
reimbursement exceed *** ******* ******** Dollars ($**********).
9. CUSTOMER INITIAL CLASSIFICATION OF WASTE MATERIAL. Customer
shall supply Zhagrus with results of Customer's initial sampling, testing
and classification, together with results of any testing, sampling and
other classification of the Waste Material received by Customer from other
persons and entities. The information provided by Customer is so provided
only for information purposes and shall not be by way of substitution or in
lieu of sampling and testing to be performed by Zhagrus.
10. ZHAGRUS PERSONNEL - TRAINING AND COMPLIANCE. Zhagrus shall
insure that all of its personnel engaged in the performance of The Work are
properly trained in the performance of their duties, the use of equipment
entrusted to them in the performance of those duties, and applicable chain-
of-custody procedures. Laboratories used by Zhagrus with regard to
applicable testing and sampling shall have a documented Quality Assurance
Program in compliance with United States Environmental Protection Agency
Guidance Document QAMS-005/80 and shall perform their services regarding
The Work in compliance therewith.
11. QUALITY CONTROL OF THE WORK. Zhagrus shall provide for a full-
time on-site inspector during all work on the Site. On-site inspections
shall be conducted on not less frequently than twice daily during The Work
on the Site to verify compliance with this Agreement and with the
Regulations, including all health and environmental requirements, and shall
be documented in Zhagrus files. Upon written request by Customer, results
of these inspections shall be provided to Customer and such other persons
and entities as Customer may reasonably require. Zhagrus shall review all
aspects of The Work and all daily reports to verify that the work is in
compliance with this Agreement and shall promptly note and correct any
variances and discrepancies.
12. PROTECTION OF THE SITE - LIENS. During the time of the
performance of The Work, Zhagrus shall adopt and implement appropriate
policies and procedures for the protection of the Site from unauthorized
entry and vandalism and injury to persons or property resulting therefrom
and shall require its subcontractors engaged in any of The Work at the Site
to implement and follow similar policies and procedures. Zhagrus shall
maintain the Site free and clear of all liens, claims or encumbrances of
any type or description arising out of the failure of Zhagrus and any of
its subcontractors to make timely and proper payment for labor and
materials provided at the Site.
13. SAFETY. All Zhagrus personnel working at the Site shall meet
and comply with all safety standards and requirements imposed by applicable
federal, state and local laws and ordinances. Zhagrus shall require that
its subcontractors engaged in the performance of The Work at the Site
require compliance by their personnel at the Site.
14. REPORTS - RECORDKEEPING. All reports prepared by Zhagrus,
Envirocare, or any subcontractor during the performance of The Work shall
be maintained for a minimum of seven years after completion of The Work.
The reports shall be made available upon reasonable notice and at
reasonable times for inspection by Customer and any governmental entity,
person or other entity to whom Customer is legally or contractually
obligated with regard to The Work. All of those entitled to inspect the
reports shall be provided a copy of the same by Zhagrus upon request. At
intervals of not less than every 30 days, Zhagrus shall prepare and submit
to Customer Work Completion Reports, which shall include a description of
The Work completed, The Work planned for the next 30 days, a description
of any problems encountered, any actual or anticipated delays, the results
of all sampling, testing and other data received or produced by Zhagrus
during the course of The Work, and any work performed which Zhagrus has
determined as not having been in compliance with this Agreement. Within 30
days of completion of The Work, Zhagrus shall prepare and submit to
Customer a final Work Completion Report, which shall include a narrative
description of all The Work performed, the actual work performed, including
actual commencement and completion dates, and a certification that The Work
has been completed in accordance with the Regulations, all laws, this
Agreement and any modifications agreed to by Customer in writing.
15. LICENSES AND PERMITS. Zhagrus shall obtain, or cause to be
obtained, all local, state and Federal licenses and permits required from
each governmental body having jurisdiction over the Site, the work at the
Site, and the transportation of the Waste Material to The Facility and
shall perform The Work in compliance therewith.
16. COMPLIANCE WITH LAW. Zhagrus shall comply with the Regulations
and all applicable federal, state and local laws, ordinances and
requirements, including but not limited to, the provisions of the Fair
Labor Standards Act of 1938, as amended, and shall require compliance by
its subcontractors with the Regulations and all federal, state and local
laws, ordinances and requirements applicable to said subcontractors with
regard to The Work and the Waste Material.
17. REPRESENTATIONS, WARRANTIES AND AGREEMENTS.
ZHAGRUS. Zhagrus acknowledges the toxic nature and physical
characteristics of all of the Waste Material identified in Schedule "A."
It represents, warrants and agrees that (1) it shall cause that
scientifically and legally accepted standards and procedures be used for
treatment of any Waste Material to be treated, (2) it shall perform its
services in compliance with this Agreement and the Regulations and (3) The
Facility has been duly licensed by the State of Utah and the United States
Environmental Protection Agency for receipt and disposal of the Waste
Material and for treatment of Waste Material, if any, identified in
Schedule "A" as to be delivered for both treatment and disposal.
CUSTOMER. Customer represents and warrants that (1) it has title to
the Site and the Waste Material and has authority to make this Agreement,
and that (2) Exhibit A is an accurate description of the Waste Material.
18. INDEMNIFICATION. Customer shall indemnify, defend and save
harmless Zhagrus and Envirocare and their officers, directors, employees,
and agents, against any and all liability whatsoever, including all costs,
expenses, and/or attorney's fees, which may arise out of any negligent act
or omission of Customer. In addition to and not in lieu of the insurance
provisions contained in paragraph 21, Zhagrus shall protect, indemnify and
hold harmless, Customer and any of its employees, workmen, servants or
agents ( Covered Parties ) of and from any claim, loss, cost, damage or
expense arising from:
(a) Any and all claims which may be made against Customer or any
Covered Parties by reason of injury or death to person, or damage to
property, suffered, or claimed to have been suffered, by any person, firm,
corporation, or other entity, caused by, or alleged to have been caused by,
any negligent act or omission of Zhagrus or any subcontractor retained by
or through Zhagrus or of any of their employees, workmen, servants or
agents.
(b) Any and all damage to the property of Customer, or any Covered
Parties, including but not limited to property occupied or used by or in
the care, custody or control of Zhagrus, caused by, or alleged to have been
caused by, any negligent act or omission of Zhagrus, any subcontractor
retained by or through Zhagrus or of any of their employees, workmen,
servants or agents.
(c) Any and all claims and demands which may be made against
Customer, or any Covered Parties, by reason of any infringement or alleged
infringement of any patent rights or claims caused by or alleged to have
been caused by the use of any materials or equipment furnished or used by
Zhagrus or any subcontractor retained by or through Zhagrus.
(d) Any and all penalties imposed on account of the violation of any
Regulation or law by Zhagrus or any subcontractor retained by or through
Zhagrus or any of their employees, workmen, servants or agents.
The indemnification required herein shall survive termination or expiration
of this Agreement and shall continue in force and effect beyond the term of
this Agreement. The indemnification contained herein is perpetual and
shall not be terminated nor in any manner reduced without the written
consent of Zhagrus and Customer.
19. PAYMENT.
(a) In consideration of Zhagrus performing and providing all The Work
as herein agreed to be performed and provided by Zhagrus, Customer shall
make payment to Zhagrus the total contract price (********* ******) of ***
******* **** ******* ******** Dollars ($************) as set forth in
Schedule "C," which is attached hereto and by reference made a part hereof
as to volumes which were situated on Site as of June 11, 1997. The
Contract Price shall *** ** ******** if the volumes estimated in Schedule A
(or elsewhere in this Agreement) prove to be incorrect or inaccurate.
(b) Zhagrus shall submit applications for payment to Customer in the
amounts and upon completion of the tasks ( Tasks ) set forth in Schedule C
and shall keep copies of said invoices for a period of at least three years
as a partial record of the performance of The Work. All invoices shall be
due and payable by Customer within 30 days of receipt by Customer. Any
payment not received at Zhagrus place of business within 30 days of
receipt of invoice shall accrue interest on the delinquent amount 30 days
from the date the invoice was received at one and one-half percent (1.5%)
per month (but not to exceed the lawful applicable rate). Said interest is
payable at the time of the delinquent payment. Failure to pay invoices for
completed tasks within 30 days of receipt shall constitute a material
breach of this Agreement.
20. TITLE TO WASTE MATERIAL. Upon Zhagrus accepting and taking
possession at the **** for ************** of the Waste Material, title,
risk of loss, and all other incidents of ownership to the Waste Material
shall thereupon be held by Zhagrus or Envirocare. Pursuant to paragraph
18, Zhagrus shall indemnify and defend Customer against any claims arising
from the handling, treatment, storage and disposal of the Waste Material by
Zhagrus and Envirocare. Customer shall have no right to recovery of any
material contained in the Waste Material nor any credit for its potential
value. Customer shall nevertheless remain obligated in accordance with
paragraph 5 above with regard to Nonconforming Material.
21. LIABILITY COVERAGE. Zhagrus shall maintain, at its expense, at
least the following liability insurance coverage during the time that it is
performing or providing for the performance of The Work under this
Agreement.
COVERAGE LIMITS
(a) Workman's Compensation Statutory
(b) Employer's Liability $1,000,000 each occurrence
(c) General Liability $5,000,000 each claim
(Bodily Injury and $5,000,000 aggregate limit
Property Damage)
(d) Sudden and Non-Sudden $4,000,000 each loss
Pollution Liability $8,000,000 total for all losses
(e) Automotive Liability $1,000,000 combined single
(Bodily Injury and limit
Property Damage)
Customer shall be named as an additional named insured on Zhagrus general
liability policy, with provision for notice to Customer of any overdue or
unpaid premium and notice to Customer of any proposed cancellation.
Zhagrus agrees to furnish certificates of insurance prior to commencing The
Work and, thereafter, upon request.
22. FORCE MAJEURE. The performance of this Agreement, except for the
payment of money owing for work and services actually rendered hereunder,
may be suspended by either party in the event of national defense
requirements, any act of God, war, riot, fire, explosion, accident, flood,
sabotage, an order directive or request of an authorized governmental
agency (including the Northwest Interstate Compact Commission) that
delivery, transportation, acceptance, treatment, or disposal of the Waste
Material be suspended or terminated, the lack of adequate fuel, power, any
material noncompliance by the other party with the Regulations,
governmental requirements, law, regulations, orders or actions. Any
refusal of CSX Transportation, Inc. to accept any of the four railcars
loaded by Customer (#251586, #242134, #259564, #253912) for transportation
from the Site shall be considered an item of force majeure, provided any
such refusal is not caused by an act or omission of Zhagrus.
23. INDEPENDENT CONTRACTOR. Zhagrus and Customer are each separate
entities. Neither of them, nor their employees or agents, shall be deemed
to be employees or agents of the other. Notwithstanding the foregoing,
Customer shall have the right to approve all subcontractors of Zhagrus.
24. WAIVER. Any waiver by either party of the breach of any
provision or condition of this Agreement shall not be construed or deemed
to be a waiver of a subsequent breach of the same provision or condition,
unless such waiver be expressed in writing and signed by the party to be
bound.
25. NOTICE. Any notice, communication or statement required or
permitted to be given hereunder shall be in writing and deemed to have been
sufficiently given when delivered in person or by mail, postage prepaid, or
by telefax machine addressed as follows:
CUSTOMER: Kentucky Electric Steel, Inc.
P. O. Box 3500
Ashland, Kentucky, 41105-3500
ATTENTION: Mr. Travis Bailey Telephone #(606) 929-1330
Telefax #(606) 929-1324
with copy to:
Mr. William H. Jones, Jr. Telephone #(606) 329-2929
P.O. Box 1111 Telefax #(606) 329-0490
Ashland, Kentucky 41105-1111
ZHAGRUS Zhagrus Environmental, Inc.
46 West Broadway, Suite 240
Salt Lake City, Utah 84101
ATTENTION: Mr. Charles A. Judd Telephone #(801) 532-1330
Telefax #(801) 537-7345
or at such other address as a party shall hereafter, in writing, direct.
26. TERMINATION/SUSPENSION. Notwithstanding any language to the
contrary contained herein, if either party is in default under this
Agreement, the other party may, at its sole election, (1) waive any such
default on such terms as the parties shall agree; (2) suspend further
performance under this Agreement; or (3) declare the defaulting party in
default of this Agreement. Either party may terminate this Agreement by
notice in writing in the event that the other party either is in default
of this Agreement and continues in default for a period of ten (10) days
after receipt of written notice to cure said default; makes an assignment
for the benefit of creditors; admits in writing an inability to pay debts
as they mature; a trustee or receiver of the other or of any substantial
part of the other's assets is appointed by any court; or a proceeding is
instituted under any provision of the Federal Bankruptcy Code by the other
or against the other, and is acquiesced in or is not dismissed within 60
days, or results in an adjudication in bankruptcy.
27. CONFIDENTIALITY. Zhagrus shall treat as confidential property
and not disclose to others during or subsequent to the term of this
Agreement, except as is necessary to perform this Agreement hereunder and
then only on a confidential basis satisfactory to Customer, any
information, including technical information, experience or data, regarding
the Customer s plans, programs, plants, processes, products, disposal
costs, equipment, operations, customers and/or the specific contractual
terms contained herein which may come within the knowledge of the parties,
their officers or their employees in the performance of this Agreement
without in each instance securing the prior written consent of the
Customer. Zhagrus shall also treat as confidential and shall not disclose
to others, except as required by law, governmental rules, regulations
and/or orders, information relating to the composition of the Waste
Material, any treatment performed and/or the quantity of Waste Material
delivered to it by Customer. Zhagrus may disclose to its agents and
contractors information relating to the composition, type, treatment and
quantity of the Waste Material as required to perform this Agreement,
without written authorization from Customer, including but not limited to
its general contractor, its laboratories and contractors performing special
treatment services. Nothing herein, however, shall prevent either Zhagrus
or Customer from disclosing to others or using in any manner information
which either party can show:
(a) Has been published and become part of the public domain other
than by acts, omissions, or fault of Zhagrus or Customer or their
employees.
(b) Has been furnished or made known to Zhagrus or Customer by third
parties other than those acting directly or indirectly for, or on
behalf of, Zhagrus or Customer as a matter of legal right without
restriction against disclosure.
(c) Was in the other party's possession prior to the disclosure
thereof by Zhagrus or Customer to each other.
(d) The information is supplied to a governmental agency pursuant to
a legal requirement to do so.
28. SURVIVAL. The representations, warranties, covenants, and
agreements made herein shall survive expiration and/or termination of this
Agreement.
29. AMENDMENT/ASSIGNMENT. This Agreement may be amended or assigned
only by the written agreement of the parties. Any assignment in violation
hereof is void.
30. BINDING. This Agreement shall be binding upon, and shall inure
to the benefit of, the parties hereto and their respective successors and
permitted assigns.
31. DEFAULT. In the event any party to this Agreement defaults in
any of the covenants or agreements contained herein, the defaulting party
shall pay all damages, costs and expenses, including reasonable attorney's
fees incurred by the other party in enforcing its rights arising hereunder.
32. APPLICABLE LAW. This Agreement is entered into in the County of
Boyd, State of Kentucky and shall be governed and construed in accordance
with the laws of the State of Kentucky.
33. HEADINGS AND PARAGRAPH NUMBERS. Headings and paragraph numbers
have been inserted herein solely for convenience and reference and shall
not be construed to affect the meanings, construction or effect of this
Agreement.
34. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which may be executed by less than all of the parties
hereto, each of which shall be enforceable against the parties actually
executing such counterparts, and all of which together shall constitute one
instrument.
35. SEVERABILITY. In the event that any provision of this Agreement
becomes or is declared by a court of competent jurisdiction to be illegal,
unenforceable or void, the Agreement shall continue in full force and
effect without the said provision, provided that no such severability shall
be effective if it materially changes the economic benefit of this
Agreement to any party.
36. ENTIRE AGREEMENT. This Agreement constitutes the full and
entire understanding and agreement between the parties hereto, and
supersedes any language, term, condition, or other provision of any prior
written materials, including any request for proposal, and any oral
communications between the parties.
IN WITNESS WHEREOF, Customer and Zhagrus have each caused this
Agreement to be executed by its duly authorized representative(s) on the
day and year set forth below.
ZHAGRUS ENVIRONMENTAL, INC. KENTUCKY ELECTRIC STEEL, INC.
By: S\Larry Shelton By: S\William H. Gerak
William H. Gerak
Title: Chief Operating Officer Title: Vice President of Administration
Date signed 7/29/97 Date signed 7/29/97
(ZHAGRUS) (CUSTOMER)
<PAGE>
GUARANTY
WHEREAS, Zhagrus is an affiliate of and under common control of
Envirocare; and
WHEREAS, Envirocare is willing to guarantee, as set forth below, the
performance of Zhagrus under this Agreement; and
WHEREAS, Customer would not enter into the Agreement unless Envirocare
provides this Guaranty;
NOW, THEREFORE, as an inducement to Customer to enter into the
Agreement, Envirocare agrees as follows:
1. Envirocare hereby guarantees performance of all the obligations
of Zhagrus under the Agreement in accordance with the terms and conditions
therein. In the event of breach of any such obligations of Zhagrus or
default in the performance, Envirocare shall undertake performance of the
obligations of Zhagrus to Customer at such time and in such manner as
specified in the Agreement.
2. Envirocare further agrees that Envirocare waives notice of
Zhagrus providing services to Customer and of the amounts and terms
thereof, and of all defaults or disputes between Customer and Zhagrus, and
of the settlement or adjustment of such defaults or disputes. Envirocare,
without affecting Envirocare s liability hereunder, in any respect,
consents to and waives notice of all changes in terms, or modifications to
the Agreement, extensions of time for performance, the release or change of
the whole or any part of the Agreement, any settlement or comprise of
differences between the Customer and Zhagrus, or the notice of non-
performance under the Agreement.
3. Envirocare also consents and waives notice of any arrangements
for settlements made in or out of court in the event of bankruptcy or any
other action for the benefit of creditors of Zhagrus.
4. Envirocare further agrees that the obligations of Envirocare
hereunder are primary and unconditional obligations and cover all existing
and future performance or obligations of Zhagrus (and any permitted
successors and assigns) under the Agreement, including, but not limited to,
the payment of damages to Customer. This obligation shall be enforceable
before or after proceeding against Zhagrus and shall be effective
regardless of the solvency or insolvency of Zhagrus.
5. Envirocare further agrees that all liabilities of Zhagrus to
Customer under the Agreement shall immediately become the liability of
Envirocare should Zhagrus become insolvent or have a receiver, custodian or
trustee appointed for same or in the event of filing by Zhagrus of a
voluntary or involuntary petition for relief under the bankruptcy laws.
6. This Guaranty shall, for all purposes, be deemed to be made in
and shall be governed by the laws of the Commonwealth of Kentucky and
shall be deemed to have been made and entered into and to be performed in
Boyd County, Kentucky.
7. In addition to Envirocare s obligations hereunder, Envirocare
agrees to indemnify and hold harmless Customer and any of its employees,
workmen, servants or agents of and from the loss, cost, damage or expense
arising from the handling, treatment, storage and disposal of the Waste
Material by Envirocare. All covenants of indemnity shall survive
termination or expiration of the Agreement and this Guaranty.
8. All written communications provided for hereunder shall be sent
by U.S. mail or by facsimile with confirmation by first class mail to:
GUARANTOR: Envirocare of Utah, Inc.
46 West Broadway, Suite 240
Salt Lake City, Utah 84101
Telephone # (801) 532-1330
Telefax # (801) 537-7345
ATTENTION: Charles Judd
CUSTOMER: Kentucky Electric Steel, Inc.
P. O. Box 3500
Ashland, Kentucky, 41105-3500
ATTENTION: Mr. Travis Bailey
Telephone # (606) 929-1330
Telefax # (606) 929-1324
with copy to:
Mr. William H. Jones, Jr.
P.O. Box 1111
Ashland, Kentucky 41105-1111
Telephone # (606) 329-2929
Telefax # (606) 329-0490
or to such other address as shall be designated by such party in written
notice to the other party.
9. This Guaranty represents the complete agreement between the
parties and incorporates any prior negotiations or agreements between
Customer and Zhagrus and between Customer and Envirocare in regard to this
Guaranty.
10. This Guaranty may not be assigned except with the written consent
of Customer and Envirocare. This Guaranty shall be binding upon
Envirocare s legal representatives and assigns, and shall inure to
Customer s benefit and to the benefit of Customer s successors and agreed
assigns.
11. This Guaranty shall not expire or otherwise terminate until
January 1, 2010.
IN WITNESS WHEREOF, Envirocare has executed this Guaranty this 29
day of July , 1997.
ENVIROCARE OF UTAH, INC.
By: S\Charles A. Judd
Title: President
Date signed 7/29/97
(ENVIROCARE)
<PAGE>
Schedule "A"
CUSTOMER: KENTUCKY ELECTRIC STEEL, INC.
_________________________
DESCRIPTION OF THE WASTE MATERIAL
The Waste Material to be delivered for treatment and disposal is the Waste
Material resulting from the smelting of a radioactive source by Customer
in April of 1997 and is described in the Radiological Evaluation Form(s)
(EC-0650), the Waste Profile Record Form(s) (EC-0175), and the Physical
Properties Evaluation Form(s) (EC-0500) captioned Treatment and Disposal
and attached hereto and by reference made a part hereof.
Estimated Physical Characteristics and Volumes:
****** cubic feet of Emission Control Dust - K061
***** cubic feet of Baghouse Filter Bags
*** cubic feet of Miscellaneous including Bag Filter Caps, Bag Filter
Hardware (bolts, pins, springs), Tyveks, Gloves, Duct Tape, Masslin Towels,
Plastic Sheeting, Wood, Plastic Pipe, Respirator Filters, Paper Dust Masks
Container Description Capacity Percent Full Estimated Volume
Railcar #251586 4750 ft3 ** **** ft3
Railcar #242134 4750 ft3 ** **** ft3
Railcar #259564 4750 ft3 ** ****ft3
Railcar #253912 4750 ft3 ** **** ft3
Rolloff #4465 675 ft3 ** *** ft3
Rolloff #4340 675 ft3 ** *** ft3
Rolloff #1804 675 ft3 ** *** ft3
Trailer #88-590 2576 ft3 ** **** ft3
Trailer #9349 2576 ft3 ** **** ft3
Trailer #CHV 3105-49 2576 ft3 ** **** ft3
<PAGE>
Schedule "A"
WASTE PROFILE
AND
RANGE DESCRIPTION
1. Waste Stream Name: Dust, Debris, and DAW
2. Volume of Waste Material: ************* ft3
3. Type of Waste: Mixed Waste
4. Description:
a. Color: Metallic Oxides/Various
b. Odor: Earthy/Musty
c. State: Solid, Powder/dust
5. Physical Data:
a. Gradation of Material: 12" 50-68%
4" 30-50%
1" 20-50%
1/4" 20%
1/40" 20%
1/200" 20%
6. Density Range: 30-90 lbs./ft3
7. General Characteristics: 66% soil like
34% DAW and debris
8. Moisture Content: Optimum: N/A
Average: 0-5%
Range: 0-10%
9. Radiological Isotope: Cs-137
a. Range: ND-2000 pCi/gr
b. Average 1999 pCi/gr
10. Analytical Ranges for Toxicity:
a. Arsenic: ND-50 mg/l
b. Barium: ND-500 mg/l
c. Cadmium: ND-100 mg/l
d. Chromium ND-50 mg/l
e. Copper: ND-500 mg/l
f. Lead ND-1000 mg/l
g. Mercury ND-50 mg/l
h. Selenium ND-300 mg/l
i. Silver ND-500 mg/l
j. Zinc ND-10000 mg/l
11. Analytical Ranges for Parameters:
a. pH: 3-12
b. Paint Filter Liquids Test: Pass
c. Cyanide/Sulfide: None Detected
d. Ignitability: >200 F
12. Chemical Composition:
a. EAF Dust: 50-100 %mg/kg
b. EAF Filter 30-50 %mg/kg
<PAGE>
Schedule "B"
CUSTOMER: KENTUCKY ELECTRIC STEEL, INC.
SCOPE OF THE WORK FOR THE PACKAGING, TRANSPORTATION,
TREATMENT, AND DISPOSAL OF MIXED RADIOACTIVE WASTE
FROM THE KENTUCKY ELECTRIC STEEL COMPANY'S ASHLAND, KY FACILITY
--------------
Zhagrus will provide all necessary labor, equipment, services,
materials, and other support which is required to characterize, profile,
package, load, document, manifest, and transport the Waste Material from
the Site and to treat, store and dispose of Customer s Waste Material at
the Envirocare of Utah disposal facility in Clive, Utah.
TASK 1 - Preparation for Operations
A. Repackaging operations will be conducted in a controlled area to
prevent release of Waste Material to the environment.
B. All on-site activities will be conducted under a radioactive
material license issued to Zhagrus or its subcontractors.
Zhagrus will coordinate with the State of Kentucky to ensure
regulatory approval of this activity.
C. Zhagrus will develop and submit to Customer for its review all
required plans and procedures necessary to ensure that all
operations are conducted in accordance with applicable
regulations (any review by Customer shall not relieve Zhagrus of
its obligations to fulfill all its obligations under this
Agreement). At a minimum, these plans will include:
Site-Specific Health and Safety Plan
Project Management Plan
Detailed Operating Procedures
Waste Characterization and Sampling Plan
D. Completion Date: August 1, 1997.
TASK 2 - Waste Material Characterization
A. Based on its sampling plan, Zhagrus will collect the necessary
waste samples of the Waste Material. Composites of these
samples will be analyzed by a Utah certified laboratory to
support Envirocare's Waste Characterization requirements. In
addition, 5 each 2-pound composite samples will be collected and
sent to Envirocare of Utah for analysis. Zhagrus will complete
and submit a Pre-Shipment Sample Profile Form (EC-2000) to
Customer, as waste generator, for approval.
B. Zhagrus will also collect and send a mixed waste treatment sample
consisting of at least 20 liters (5 gallons) to Envirocare to
conduct a waste treatment study. Zhagrus will complete and
submit a Pre-Shipment Sample Profile Form (EC-2000) and
Treatability Study Sample Certification (EC-1700) to Customer, as
waste generator, for approval.
C. Zhagrus will complete and submit to Customer for review and
signature a waste profile package. This package will consist of
Radioactive Waste Profile Record (EC-0230), copies of all
laboratory analysis, and a copy of laboratory's Utah
certification.
D. Any approval by Customer as waste generator shall not relieve
Zhagrus of its obligation and Zhagrus agrees that Customer may
rely on Zhagrus characterization of the Waste Material. This
reliance shall not be by way of substitution of Customer s
knowledge of the Waste Material obtained independent of the
Zhagrus characterization of the Waste Material.
E. Completion Date: August 4, 1997.
TASK 3 - Package Waste Material for Shipment
A. Waste Material which has been previously packaged in metal
trailers will be moved to Sea-land containers prior to transport
to the Facility.
B. Bulk Waste Material currently in rolloff containers will be moved
onto rail flatbeds.
C. All Waste Material will be transported by rail to the Facility
and all packaging operations will be conducted in such a way as
to protect the health and safety of both the workers and general
public and to prevent the release of hazardous materials into the
environment.
D. Completion Date: August 7, 1997.
TASK 4 - Transportation of Waste Material
A. Zhagrus will arrange for transportation of this mixed Waste
Material from the Site to the Facility. Details on the transport
of this material will be provided in the Project Management Plan.
B. All transport vehicle loading will comply with Department of
Transportation regulations to include meeting the blocking and
bracing requirements outlined in either the Federal Motor Carrier
Safety Regulations or the Federal Railroad Regulations.
C. Zhagrus will be responsible for preparing and submitting
completed transportation documentation to Customer for its review
and signature. These transportation documents will include all
documents required by federal or state regulations and all
documents required by Envirocare to dispose of this Waste
Material at the Facility. (Any review and execution of the
documentation shall not relieve Zhagrus of its obligations to
fulfill all its obligations under this Agreement).
D. Completion Date: August 12, 1997.
TASK 5 - Evaluation, Cleanup, and Release of Storage and Work Areas
A. After packaging and loading operations, Zhagrus will survey,
evaluate, clean up, secure free release for, and certify that the
areas and containers, including trailer vans, used for the
storage, packaging, and loading of this Waste Material are free
of detectable contamination as required by the Regulations. At
no additional cost to Customer, waste generated as a result of
these cleanup activities will be packaged and transported by
Zhagrus to Envirocare's disposal facility.
B. Completion Date: September 1, 1997.
TASK 6 - Treatment and Disposal of Waste
A. Zhagrus will provide for the treatment of this Waste Material by
Envirocare to meet applicable land disposal restrictions and all
Regulations.
B. After treatment, the treated Waste Material will be stored until
disposal by Envirocare at the Facility.
C. All rail cars, rolloffs, and Containers will be decontaminated
and certified for free release as being free of detectable
contamination as required by the Regulations.
D. Completion Date: September 1, 1998.
<PAGE>
Schedule "C"
CUSTOMER: KENTUCKY ELECTRIC STEEL, INC.
PRICE SCHEDULE
__________
The following charges will apply for The Work described in Schedule "B"
which meets each of the requirements of this Agreement:
A ***** price of Two Million Four Hundred Thousand Dollars
($*********) which shall be paid pursuant to the provisions of
paragraph 19 of this Agreement and in accordance with the schedule
of Work in Schedule B and as follows:
Upon Completion of:
Task 1: $**********
Task 2: $**********
Task 3: $**********
Task 4: $**********
Task 5: $**********
Task 6: $**********
<PAGE>
Schedule "D"
CUSTOMER: KENTUCKY ELECTRIC STEEL, INC.
______________________
WASTE TREATMENT EVALUATION REVIEW SERVICES
The following is a description of the waste treatment evaluation services
to be performed by Zhagrus.
Zhagrus shall evaluate, or cause Envirocare to evaluate, the Waste
Material identified in Schedule "A" to determine whether it meets
the criteria for acceptance and waste management at The Facility,
as set forth in Envirocare's License and the Regulations, and the
components and acceptable parameters set forth in Schedule A. The
evaluation will include a review of the Radioactive Waste Profile
Record Forms EC-0230 and Pre-Shipment Sample Profile Record Form
EC-2000. Zhagrus will deliver or cause Envirocare to deliver to
Customer a written report on or before January 1, 1998, of the
results of the evaluation and which report shall state whether the
evaluated samples of the Waste Material reveal any Nonconforming
Material (as defined in paragraph 5).
