1005-00005 · Nexford Industrial Holdings · Settlement

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MUTUAL TERMINATION AGREEMENT

This Mutual Termination Agreement (this "Agreement") is entered into and made effective as of August 31, 2023 (the "Effective Date"), by and between:

Nexford Industrial Holdings Inc., a corporation organized and existing under the laws of the State of Delaware, with its principal place of business and headquarters located at 4200 West Lakeshore Industrial Parkway, Suite 300, Waukegan, Illinois 60085 (hereinafter referred to as "Buyer" or "Nexford"),

and

Cardinal Peak Industries, a limited liability company organized and existing under the laws of the State of Colorado, with its principal place of business and headquarters located at 1580 Ridgeline Boulevard, Pueblo, Colorado 81001 (hereinafter referred to as "Seller" or "Cardinal Peak").

Nexford and Cardinal Peak are each individually referred to herein as a "Party" and collectively as the "Parties."

RECITALS

WHEREAS, Nexford and Cardinal Peak entered into that certain Master Supply Agreement dated January 15, 2020, bearing reference number MSA-NIH-CPI-2020-001 (the "MSA"), pursuant to which Cardinal Peak agreed to supply hot-rolled coil ("HRC") and cold-rolled coil ("CRC") steel products to Nexford on a long-term basis, with base pricing of Six Hundred Twenty Dollars ($620.00) per ton for HRC and Seven Hundred Forty Dollars ($740.00) per ton for CRC, estimated annual supply volumes of approximately eighteen thousand (18,000) tons of HRC and six thousand five hundred (6,500) tons of CRC (approximately twenty-four thousand five hundred (24,500) tons per year in the aggregate), and an estimated aggregate annual spend of approximately Fifteen Million Nine Hundred Seventy Thousand Dollars ($15,970,000);

WHEREAS, the MSA had an initial term of three (3) years commencing on January 15, 2020 and expiring on January 14, 2023, with automatic renewal for successive one (1) year periods thereafter unless terminated by either Party upon not less than one hundred eighty (180) days' prior written notice to the other Party;

WHEREAS, disputes arose between the Parties regarding the calculation, documentation, and payment of raw-material surcharges assessed by Cardinal Peak under Section 7.4 of the MSA during the period from March 2021 through May 2022, including but not limited to disagreements regarding the methodology for calculating scrap surcharges, alloy surcharges, and energy surcharges, and the sufficiency of supporting documentation provided by Cardinal Peak to substantiate those surcharges, which disputes resulted in litigation captioned Cardinal Peak Industries v. Nexford Industrial Holdings Inc., Case No. 2022-L-008471, filed in the Circuit Court of Cook County, Illinois, County Department, Law Division (the "Litigation");

WHEREAS, the Parties participated in a court-ordered mediation on August 2, 2023 before the Honorable Catherine Lindström (Ret.) at the Great Lakes Dispute Resolution Center, located in Chicago, Illinois, during which the Parties engaged in good-faith negotiations and reached a settlement in principle resolving all claims and counterclaims asserted or that could have been asserted in the Litigation, which settlement was subsequently memorialized in a Settlement Agreement and Mutual Release executed by the Parties on August 18, 2023 (the "Settlement Agreement");

WHEREAS, pursuant to the terms and conditions of the Settlement Agreement, the Parties agreed, among other things, to terminate the MSA by mutual written agreement and to provide for an orderly wind-down of all outstanding purchase orders and the commercial relationship between the Parties under the MSA; and

WHEREAS, the Parties now desire to formally and irrevocably terminate the MSA on the terms and conditions set forth in this Agreement, and to memorialize their mutual understanding regarding the transition of outstanding obligations, the treatment of confidential information, and the continuing effect of certain surviving provisions of the MSA.

NOW, THEREFORE, in consideration of the foregoing recitals, the mutual covenants and agreements contained herein, the terms and conditions of the Settlement Agreement, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by each Party, the Parties agree as follows:

ARTICLE 1 — DEFINITIONS

1.1 Defined Terms. Capitalized terms used but not otherwise defined in this Agreement shall have the meanings ascribed to them in the MSA (Reference No. MSA-NIH-CPI-2020-001). In addition to the terms defined elsewhere in this Agreement, the following terms shall have the meanings set forth below:

(a) "Agreement" means this Mutual Termination Agreement, including all exhibits and schedules attached hereto, as the same may be amended, modified, or supplemented from time to time in accordance with the terms hereof.

(b) "Confidential Information" has the meaning ascribed to such term in Article 12 of the MSA, and shall include, without limitation, all non-public information disclosed by one Party to the other in connection with the MSA, this Agreement, or the Settlement Agreement, including pricing data, cost structures, customer lists, manufacturing specifications, technical drawings, product formulations, forecasts, business plans, and any copies, summaries, extracts, or derivative works thereof.

(d) "MSA" means the Master Supply Agreement dated January 15, 2020 (Reference No. MSA-NIH-CPI-2020-001), entered into by and between Nexford and Cardinal Peak, including all exhibits, schedules, amendments, supplements, side letters, and change orders thereto, including without limitation Exhibit A (Product Specifications), Exhibit B (Pricing Schedule), Exhibit C (Surcharge Methodology), Exhibit D (Quality Assurance Requirements), and any amendments executed by the Parties during the term of the MSA.

(e) "Outstanding Purchase Orders" means all purchase orders issued by Nexford under the MSA that are open, accepted, and undelivered (in whole or in part) as of the Effective Date, as more particularly identified and described in Exhibit A hereto.

(f) "Settlement Agreement" means the Settlement Agreement and Mutual Release executed by the Parties on August 18, 2023, resolving the Litigation and related disputes between the Parties.

(g) "Transition Period" means the period commencing on the Effective Date and ending at 11:59 p.m. Central Time on October 31, 2023, during which the Parties shall complete the wind-down of outstanding obligations as set forth in Article 3 of this Agreement.

1.2 Rules of Construction. For purposes of this Agreement: (a) the words "herein," "hereof," "hereby," "hereunder," and words of similar import refer to this Agreement as a whole and not to any particular provision; (b) references to an "Article," "Section," or "Exhibit" refer to the applicable article, section, or exhibit of this Agreement unless otherwise specified; (c) the terms "include," "includes," and "including" shall be deemed to be followed by the words "without limitation"; (d) references to any agreement, instrument, or document shall mean such agreement, instrument, or document as amended, supplemented, or modified from time to time; and (e) references to any law, statute, or regulation shall include all statutory and regulatory provisions consolidating, amending, replacing, or interpreting such law, statute, or regulation.

ARTICLE 2 — TERMINATION OF THE MSA

2.1 Mutual Termination. The Parties hereby mutually and irrevocably agree to terminate the MSA, effective as of 11:59 p.m. Central Time on the Effective Date (August 31, 2023). From and after the Effective Date, neither Party shall have any further rights, obligations, duties, or liabilities under the MSA, except as expressly set forth in this Agreement, as provided in the Settlement Agreement, or as provided in Article 7 (Surviving Provisions) of this Agreement. The termination effected hereby is a termination by mutual written agreement of the Parties and is not a termination for cause, default, or breach by either Party.

2.2 No Termination Fee or Penalty. The termination of the MSA pursuant to this Agreement shall not give rise to, and neither Party shall be entitled to claim, any termination fee, early termination penalty, breakage cost, damages claim, lost profits, loss of bargain, or other liability or obligation of either Party to the other Party, whether under the MSA, at law, in equity, or otherwise, except as otherwise expressly provided in the Settlement Agreement. Each Party hereby waives any and all rights to seek or recover any such termination fee, penalty, or damages from the other Party in connection with the termination of the MSA effected by this Agreement.

2.3 Waiver of Notice Period. Each Party hereby expressly and irrevocably waives the one hundred eighty (180) day prior written notice requirement for termination of the MSA, as set forth in the renewal and termination provisions of the MSA. The Parties acknowledge and agree that the execution and delivery of this Mutual Termination Agreement by both Parties satisfies all procedural and substantive requirements for termination of the MSA, including any notice, cure, or waiting period requirements, and that no further notice of termination is required or shall be given by either Party. Each Party confirms that it has received adequate consideration for this waiver and that this waiver is given knowingly and voluntarily.

2.4 Confirmation of Termination. Upon the Effective Date, the MSA shall be deemed terminated and of no further force or effect, and neither Party shall hold itself out to any third party as a supplier, customer, agent, representative, or partner of the other Party under the MSA. Each Party shall promptly take all actions reasonably necessary to effectuate and confirm the termination of the MSA, including the provision of any notices to third parties as may be reasonably requested by the other Party.

ARTICLE 3 — TRANSITION PERIOD AND OUTSTANDING PURCHASE ORDERS

3.1 Transition Period. Notwithstanding the termination of the MSA on the Effective Date as set forth in Article 2, the Parties agree to an orderly wind-down of their commercial relationship during a Transition Period commencing on the Effective Date and ending at 11:59 p.m. Central Time on October 31, 2023. During the Transition Period, Cardinal Peak shall fulfill all Outstanding Purchase Orders in accordance with the terms and conditions of this Article 3, and both Parties shall cooperate in good faith to ensure a smooth and orderly transition.

3.2 Outstanding Purchase Orders. Cardinal Peak shall use commercially reasonable efforts to complete, manufacture, and deliver all Outstanding Purchase Orders issued by Nexford under the MSA that are open, accepted, and undelivered (in whole or in part) as of the Effective Date. A comprehensive schedule of all Outstanding Purchase Orders, including each purchase order number, product type (HRC or CRC), quantity in tons, applicable base price per ton, requested delivery date, and designated delivery location, shall be mutually reviewed, confirmed, and agreed upon by the Parties within five (5) business days after the Effective Date, and such schedule shall be attached hereto and incorporated herein as Exhibit A. In the event of any discrepancy between a Party's records regarding an Outstanding Purchase Order, the Parties shall work together in good faith to reconcile such discrepancy within an additional five (5) business days. The schedule set forth in Exhibit A, once mutually agreed upon and executed by the Parties, shall constitute the definitive list of Outstanding Purchase Orders to be fulfilled during the Transition Period.

3.3 Pricing During Transition Period. All Outstanding Purchase Orders fulfilled and delivered during the Transition Period shall be invoiced at the base prices in effect under the MSA as of the Effective Date—that is, the most recent quarterly-adjusted base prices established pursuant to Section 7.2 of the MSA—without any additional surcharges, adjustments, escalation factors, or price increases of any kind whatsoever. For the avoidance of doubt, Section 7.4 of the MSA (Surcharge Clause), including but not limited to scrap surcharges, alloy surcharges, energy surcharges, and any other raw-material or cost-based surcharges, shall not apply to any deliveries made during the Transition Period and shall have no force or effect with respect to any Outstanding Purchase Orders. The Parties acknowledge that the pricing terms set forth in this Section 3.3 were a material element of the settlement reached in connection with the Settlement Agreement and reflect the mutual agreement of the Parties.

3.4 Payment Terms During Transition Period. Payment for all products delivered by Cardinal Peak to Nexford during the Transition Period shall be due net thirty (30) days from the date of Cardinal Peak's invoice for such delivery, consistent with the standard payment terms established under the MSA. All invoices submitted by Cardinal Peak during the Transition Period shall comply with the invoicing requirements of the MSA and shall clearly reference the applicable purchase order number, product type, quantity delivered, and unit price. Nexford shall remit payment by wire transfer to the bank account designated by Cardinal Peak in writing, or by such other method as the Parties may mutually agree.

3.5 No New Purchase Orders. Nexford shall not issue, and Cardinal Peak shall not accept, any new purchase orders under the MSA after the Effective Date. The obligation of Cardinal Peak to supply steel products to Nexford after the Effective Date is strictly limited to the fulfillment of Outstanding Purchase Orders during the Transition Period as set forth in this Article 3. Any additional steel supply requirements of Nexford arising after the Effective Date shall be procured by Nexford from alternative suppliers at Nexford's sole discretion and expense, and Cardinal Peak shall have no obligation to supply such requirements.

3.6 Delivery and Acceptance. Delivery, inspection, acceptance, and rejection of products during the Transition Period shall be governed by the applicable provisions of the MSA (including, without limitation, Sections 4.1 through 4.6 and Section 5 of the MSA relating to shipping terms, risk of loss, inspection, acceptance, and rejection), which provisions are hereby incorporated by reference into this Agreement solely for the limited purpose of governing the fulfillment of Outstanding Purchase Orders during the Transition Period. Cardinal Peak shall deliver all products in accordance with the delivery schedules set forth in Exhibit A, and shall provide Nexford with standard shipping documentation, mill test reports, and certificates of conformance as required under the MSA.

3.7 Failure to Fulfill. If Cardinal Peak is unable to fulfill any Outstanding Purchase Order, in whole or in part, during the Transition Period due to force majeure events (as defined in the MSA), capacity constraints, raw material unavailability, or other circumstances beyond Cardinal Peak's reasonable control, Cardinal Peak shall promptly notify Nexford in writing, specifying the nature of the impediment, the affected purchase order(s), the estimated quantity that cannot be fulfilled, and the expected duration of the impediment. Upon receipt of such notice, the affected purchase order (or the unfulfilled portion thereof) shall be cancelled without liability, cost, or penalty to either Party. Cardinal Peak shall use commercially reasonable efforts to mitigate the impact of any such impediment and to fulfill as much of the affected purchase order as is practicable under the circumstances.

3.8 End of Transition Period. Upon the expiration of the Transition Period on October 31, 2023, all remaining Outstanding Purchase Orders that have not been fulfilled shall be deemed cancelled, and Cardinal Peak shall have no further obligation to manufacture, deliver, or supply any products to Nexford. Neither Party shall have any further claim or liability to the other Party with respect to any cancelled Outstanding Purchase Orders, except for amounts due and payable for products actually delivered during the Transition Period.

ARTICLE 4 — RETURN OF CONFIDENTIAL INFORMATION

4.1 Return or Destruction of Confidential Information. Within thirty (30) calendar days after the expiration of the Transition Period (i.e., by no later than November 30, 2023), each Party shall, at its own cost and expense, return to the other Party, or at the disclosing Party's written election destroy, all Confidential Information of the other Party in its possession, custody, or control, in whatever form or medium such Confidential Information may exist. Such Confidential Information includes, but is not limited to, pricing data, cost structures, raw material procurement information, customer lists, supplier lists, manufacturing specifications, technical drawings, product formulations, quality assurance protocols, engineering data, tooling specifications, process documentation, business forecasts, financial projections, and any and all copies, summaries, abstracts, compilations, notes, analyses, or extracts derived therefrom. Each Party shall make reasonable and diligent efforts to identify and locate all such Confidential Information within its organization, including in the possession of its employees, contractors, agents, and advisors who received access to such Confidential Information in connection with the MSA.

4.2 Certification of Destruction. If a Party elects to destroy Confidential Information of the other Party rather than return it pursuant to Section 4.1, such Party shall, within ten (10) business days after completing the destruction, provide to the disclosing Party a written certification signed by an authorized officer of the destroying Party, confirming that all such Confidential Information has been destroyed in a commercially reasonable manner that prevents reconstruction, recovery, or unauthorized access, including the secure deletion of electronic files and the physical destruction of tangible materials. Such certification shall describe in reasonable detail the categories and approximate volume of materials destroyed and the method of destruction employed.

4.3 Exceptions. Notwithstanding the obligations set forth in Sections 4.1 and 4.2, each Party may retain:

(a) one (1) archival copy of the other Party's Confidential Information solely for legal compliance, audit, regulatory, and record-keeping purposes, which archival copy shall be stored in a secure, access-controlled location (whether physical or electronic) with access limited to such Party's legal counsel and compliance personnel, and shall not be used for any commercial, competitive, or business purpose;

(b) any Confidential Information contained in automated electronic backup systems or disaster recovery archives, provided that (i) such backup systems operate in the ordinary course and are not accessed for purposes unrelated to system recovery, (ii) such retained Confidential Information remains subject to the confidentiality obligations of the MSA and this Agreement for the full duration of the surviving confidentiality period, and (iii) such Confidential Information is deleted in accordance with the receiving Party's standard data retention and purge schedules; and

(c) any Confidential Information that the receiving Party is required by law, regulation, court order, or governmental directive to retain, provided that the receiving Party gives prompt written notice to the disclosing Party of such requirement (to the extent legally permissible) and retains only such Confidential Information as is strictly necessary to comply with such requirement.

4.4 Continuing Confidentiality Obligations. The confidentiality obligations set forth in Article 12 of the MSA with respect to Confidential Information, as supplemented by this Article 4, shall survive the termination of the MSA and this Agreement and shall remain in full force and effect for a period of three (3) years following the Effective Date (i.e., through August 31, 2026), or such longer period as may be required by applicable law or as may be specified in the MSA with respect to particular categories of Confidential Information (including, without limitation, trade secrets, which shall remain protected for so long as they qualify as trade secrets under applicable law). During such survival period, each Party shall continue to maintain the confidentiality of the other Party's Confidential Information with at least the same degree of care that it uses to protect its own confidential information of a similar nature, but in no event less than a reasonable degree of care.

ARTICLE 5 — RELEASES AND RELATIONSHIP TO SETTLEMENT AGREEMENT

5.1 Incorporation of Settlement Agreement. The Parties acknowledge and agree that this Agreement is entered into in connection with, and pursuant to the terms and conditions of, the Settlement Agreement dated August 18, 2023, which resolved all claims and counterclaims between the Parties arising out of the Litigation (Case No. 2022-L-008471, Circuit Court of Cook County, Illinois). Nothing in this Agreement is intended to, nor shall it, modify, amend, supersede, limit, or otherwise affect the terms and conditions of the Settlement Agreement, including, without limitation, the mutual releases, payment obligations, representations, warranties, and other covenants set forth therein. In the event of any conflict or inconsistency between the terms of this Agreement and the terms of the Settlement Agreement, the terms of the Settlement Agreement shall control and prevail, except with respect to the specific transition and wind-down provisions set forth in Article 3 of this Agreement, which are supplemental to and not in conflict with the Settlement Agreement.

5.2 No Additional Claims. Except as expressly set forth in the Settlement Agreement and this Agreement, each Party, on behalf of itself and its respective parents, subsidiaries, affiliates, predecessors, successors, assigns, officers, directors, managers, members, employees, agents, attorneys, insurers, and representatives (collectively, "Releasing Parties"), hereby irrevocably and unconditionally releases and forever discharges the other Party and its respective parents, subsidiaries, affiliates, predecessors, successors, assigns, officers, directors, managers, members, employees, agents, attorneys, insurers, and representatives (collectively, "Released Parties") from any and all claims, demands, causes of action, suits, debts, dues, sums of money, accounts, reckonings, bonds, bills, covenants, contracts, controversies, agreements, promises, damages, judgments, executions, liabilities, and obligations of any kind whatsoever, whether known or unknown, suspected or unsuspected, disclosed or undisclosed, matured or unmatured, accrued or unaccrued, fixed or contingent, direct or indirect, whether at law, in equity, or otherwise, arising out of or relating to the MSA, the performance or non-performance of obligations under the MSA, the surcharge dispute (including the calculation, documentation, invoicing, and payment of surcharges under Section 7.4 of the MSA during the period from March 2021 through May 2022), the Litigation (Case No. 2022-L-008471), and any and all matters, transactions, events, occurrences, acts, omissions, and circumstances that were asserted, could have been asserted, or might in the future be asserted in connection with the Litigation or the MSA.

5.3 Reservation of Rights Under This Agreement and Settlement Agreement. Notwithstanding the broad release set forth in Section 5.2 above, each Party expressly reserves, and nothing in this Agreement shall be deemed to release, waive, or diminish, all rights, remedies, claims, and causes of action arising under or in connection with (a) this Agreement, including, without limitation, the right to enforce the transition obligations set forth in Article 3, the confidential information obligations set forth in Article 4, the product warranty and liability provisions set forth in Article 8, and the general provisions set forth in Article 9; and (b) the Settlement Agreement, including, without limitation, the right to enforce the payment obligations, mutual releases, dismissal obligations, and other terms and conditions set forth therein.

ARTICLE 6 — REPRESENTATIONS AND WARRANTIES

6.1 Mutual Representations and Warranties. Each Party hereby represents and warrants to the other Party, as of the Effective Date, as follows:

(a) Organization and Good Standing. Such Party is duly organized, validly existing, and in good standing under the laws of its jurisdiction of formation (in the case of Nexford, the State of Delaware; in the case of Cardinal Peak, the State of Colorado) and has all requisite corporate or company power and authority to own, lease, and operate its properties and to carry on its business as presently conducted.

(b) Power and Authority. Such Party has full corporate or company power and authority to execute, deliver, and perform its obligations under this Agreement and to consummate the transactions contemplated hereby.

(c) Due Authorization. The execution, delivery, and performance of this Agreement by such Party has been duly and validly authorized by all necessary corporate or company action, including any required approval of such Party's board of directors, board of managers, or other governing body, and no other corporate or company proceedings on the part of such Party are necessary to authorize the execution, delivery, or performance of this Agreement.

(d) Binding Obligation. This Agreement constitutes the legal, valid, and binding obligation of such Party, enforceable against such Party in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance, and other similar laws affecting creditors' rights generally, and subject to general principles of equity (regardless of whether enforcement is sought in a proceeding at law or in equity).

(e) No Conflicts. The execution, delivery, and performance of this Agreement by such Party does not and will not (i) violate, conflict with, or result in a breach of, any provision of such Party's certificate of incorporation, bylaws, operating agreement, or other organizational documents; (ii) violate, conflict with, or result in a breach or default under (with or without the giving of notice or the lapse of time, or both), any contract, agreement, instrument, permit, license, order, judgment, decree, or other obligation to which such Party is a party or by which such Party or any of its properties or assets is bound; or (iii) violate any applicable law, statute, rule, regulation, ordinance, or order of any governmental authority having jurisdiction over such Party.

6.2 No Additional Representations. Except for the representations and warranties expressly set forth in this Section 6.1 and in the Settlement Agreement, neither Party makes any representations or warranties, express or implied, to the other Party in connection with this Agreement or the termination of the MSA.

ARTICLE 7 — SURVIVING PROVISIONS

7.1 Survival of Certain MSA Provisions. Notwithstanding the termination of the MSA as set forth in Article 2 of this Agreement, the following provisions of the MSA shall survive such termination and shall remain in full force and effect in accordance with their respective terms, to the extent applicable:

(a) Article 10 — Indemnification. All indemnification obligations of the Parties set forth in Article 10 of the MSA, including Cardinal Peak's indemnification of Nexford for product liability claims, personal injury, property damage, and intellectual property infringement, and Nexford's indemnification of Cardinal Peak for misuse of products and other specified matters, shall survive the termination of the MSA with respect to all products delivered by Cardinal Peak to Nexford prior to the Effective Date or during the Transition Period. Such indemnification obligations shall continue for the period specified in the MSA or, if no specific period is stated, for the applicable statute of limitations period under governing law.

(b) Article 11 — Limitation of Liability. The limitation of liability provisions set forth in Article 11 of the MSA, including limitations on consequential, incidental, indirect, special, and punitive damages and any aggregate liability caps, shall survive termination of the MSA and shall continue to apply with respect to any claims arising from or relating to products delivered prior to the Effective Date or during the Transition Period.

(c) Article 12 — Confidentiality. The confidentiality provisions set forth in Article 12 of the MSA shall survive termination of the MSA as supplemented and modified by Article 4 of this Agreement. To the extent of any inconsistency between Article 12 of the MSA and Article 4 of this Agreement, the provisions of this Agreement shall control.

(d) Article 13 — Intellectual Property. The intellectual property provisions set forth in Article 13 of the MSA, including provisions governing the ownership, use, return, and disposition of tooling, dies, molds, proprietary specifications, technical data, and other intellectual property developed or used in connection with the MSA, shall survive termination of the MSA. Each Party shall retain ownership of its pre-existing intellectual property, and any jointly developed intellectual property shall be governed in accordance with the terms of Article 13.

(e) Section 15.2 — Governing Law. The governing law provision set forth in Section 15.2 of the MSA, which provides that the MSA shall be governed by and construed in accordance with the laws of the State of Illinois without regard to conflicts-of-law principles, shall survive termination of the MSA and shall continue to govern the interpretation and enforcement of the surviving provisions of the MSA.

(f) Section 15.4 — Dispute Resolution. The dispute resolution provisions set forth in Section 15.4 of the MSA, including any provisions relating to mandatory mediation, arbitration, or the selection of forum and venue, shall survive termination of the MSA and shall apply to any disputes arising under or relating to the surviving provisions of the MSA identified in this Section 7.1.

7.2 Survival of This Agreement. The provisions of this Agreement shall survive the Effective Date and the termination of the MSA as follows:

(a) The transition obligations set forth in Article 3 shall survive through the end of the Transition Period (October 31, 2023) and, with respect to payment obligations for products delivered during the Transition Period, for the applicable payment period thereafter;

(b) The confidential information obligations set forth in Article 4 shall survive for the periods specified therein, including the three (3) year confidentiality survival period following the Effective Date;

(d) The representations and warranties set forth in Article 6 shall survive the Effective Date;

(e) The surviving provisions of the MSA identified in Article 7 shall continue for the periods specified therein;

(f) The product warranty and liability provisions set forth in Article 8 shall survive for the warranty periods specified in the MSA; and

(g) The general provisions set forth in Article 9 shall survive the Effective Date and shall remain enforceable until all obligations under this Agreement have been fully performed.

ARTICLE 8 — PRODUCT WARRANTY AND LIABILITY FOR PRE-TERMINATION DELIVERIES

8.1 Continuing Product Warranties. All product warranties provided by Cardinal Peak under the MSA with respect to HRC and CRC steel products delivered to Nexford prior to the Effective Date or during the Transition Period shall continue in full force and effect for the warranty period specified in the MSA, notwithstanding the termination of the MSA. Such warranties include, without limitation, warranties that all products delivered by Cardinal Peak (a) conform to the specifications set forth in the applicable purchase order and Exhibit A to the MSA; (b) are free from defects in materials and workmanship; (c) comply with all applicable industry standards, including relevant ASTM specifications; and (d) are merchantable and fit for the particular purposes for which they were supplied, to the extent such fitness warranty is provided under the MSA. Cardinal Peak shall honor all valid warranty claims submitted by Nexford in accordance with the warranty claims procedures set forth in the MSA.

8.2 Claims for Defective Products. Nexford retains the right to make warranty claims, product quality claims, and to seek indemnification under Article 10 of the MSA with respect to any defective, non-conforming, or substandard products delivered by Cardinal Peak prior to the Effective Date or during the Transition Period, subject to the notice requirements, procedural requirements, time limitations, and cure provisions set forth in the MSA. For the avoidance of doubt, Nexford's rights under this Section 8.2 include the right to seek replacement of defective products, credit for the purchase price of rejected products, reimbursement of costs incurred in connection with product recalls, and indemnification for third-party claims arising from defective products, all in accordance with and subject to the limitations of the MSA.

8.3 Cooperation. In the event of any product warranty claim or product liability claim arising from products delivered prior to the Effective Date or during the Transition Period, each Party shall cooperate with the other Party in good faith, including by providing reasonable access to relevant records, test results, mill certifications, inspection reports, and other documentation necessary to investigate and resolve such claims.

ARTICLE 9 — GENERAL PROVISIONS

9.1 Governing Law. This Agreement shall be governed by, and construed and enforced in accordance with, the internal laws of the State of Illinois, without giving effect to any choice-of-law or conflicts-of-law rules or provisions (whether of the State of Illinois or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of Illinois. Each Party hereby irrevocably consents to the exclusive jurisdiction and venue of the state and federal courts located in Cook County, Illinois, for any action, suit, or proceeding arising out of or relating to this Agreement, and each Party irrevocably waives any objection to such jurisdiction or venue, including any objection based on inconvenient forum.

9.2 Entire Agreement. This Agreement, together with the Settlement Agreement dated August 18, 2023 and the MSA (solely to the extent of the surviving provisions identified in Article 7 of this Agreement), constitutes the entire agreement between the Parties with respect to the subject matter hereof and supersedes all prior and contemporaneous agreements, understandings, negotiations, discussions, representations, warranties, and communications, whether written or oral, relating to the termination of the MSA and the subject matter of this Agreement. Each Party acknowledges that it has not relied upon any statement, representation, warranty, or agreement of the other Party except as expressly set forth in this Agreement and the Settlement Agreement.

9.3 Amendment; Waiver. This Agreement may not be amended, modified, or supplemented except by a written instrument duly executed by authorized representatives of both Parties. No waiver of any provision of this Agreement, or of any right or remedy hereunder, shall be effective unless set forth in a written instrument signed by the Party to be bound thereby. No failure or delay by either Party in exercising any right, power, or privilege under this Agreement shall operate as a waiver thereof, nor shall any single or partial exercise of any such right, power, or privilege preclude any other or further exercise thereof or the exercise of any other right, power, or privilege. The rights and remedies provided in this Agreement are cumulative and not exclusive of any rights or remedies provided by law.

9.4 Severability. If any provision of this Agreement (or any portion thereof) is held to be invalid, illegal, or unenforceable by a court of competent jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other provision of this Agreement (or the remaining portion of such provision), and the remaining provisions of this Agreement shall continue in full force and effect. In the event any provision is held to be invalid, illegal, or unenforceable, the Parties shall negotiate in good faith to replace such provision with a valid, legal, and enforceable provision that, to the greatest extent possible, achieves the original intent and economic effect of the invalid provision.

9.5 Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, and all of which together shall constitute one and the same instrument. Execution and delivery of this Agreement by facsimile, portable document format (PDF), or other electronic transmission of signature pages shall be deemed original execution and delivery for all purposes, and each Party agrees that electronic signatures shall have the same legal effect, validity, and enforceability as original ink signatures.

9.6 Notices. All notices, requests, demands, consents, waivers, and other communications required or permitted under this Agreement shall be in writing and shall be deemed to have been duly given: (a) when delivered personally; (b) one (1) business day after being sent by a nationally recognized overnight courier service (with tracking confirmation); (c) three (3) business days after being sent by certified or registered mail, postage prepaid, return receipt requested; or (d) when transmitted by email (with confirmation of receipt), in each case to the following addresses (or to such other address as a Party may designate in a written notice delivered in accordance with this Section):

If to Nexford:

Nexford Industrial Holdings Inc. 4200 West Lakeshore Industrial Parkway, Suite 300 Waukegan, Illinois 60085

Attention: Deborah Whitfield, General Counsel

With a copy (which shall not constitute notice) to:

Calderwood & Harkness LLP 200 South Wacker Drive, Suite 4400 Chicago, Illinois 60606

Attention: Priya Anand

If to Cardinal Peak:

Cardinal Peak Industries 1580 Ridgeline Boulevard Pueblo, Colorado 81001

Attention: Patricia Morrow, General Counsel

With a copy (which shall not constitute notice) to:

Blackwood Stein & Associates LLP 717 Seventeenth Street, Suite 2200 Denver, Colorado 80202

Attention: Garrett Blackwood

9.7 Assignment. Neither Party may assign, delegate, transfer, or otherwise convey any of its rights or obligations under this Agreement without the prior written consent of the other Party, which consent may be withheld in the non-assigning Party's sole discretion; provided, however, that Nexford may, without the prior consent of Cardinal Peak, assign this Agreement (in whole or in part) to any affiliate, subsidiary, parent company, or successor-in-interest of Nexford, whether by merger, consolidation, reorganization, sale of substantially all of Nexford's assets, or otherwise, provided that any such assignee assumes in writing all of Nexford's obligations under this Agreement. Any purported assignment in violation of this Section 9.7 shall be null and void and of no force or effect.

9.8 No Third-Party Beneficiaries. This Agreement is entered into solely for the benefit of the Parties and their respective successors and permitted assigns, and nothing in this Agreement, express or implied, is intended to or shall confer upon any third party (including any employee, contractor, agent, customer, supplier, or creditor of either Party) any legal or equitable right, benefit, claim, cause of action, or remedy of any nature whatsoever under or by reason of this Agreement.

9.9 Relationship of Parties. Nothing contained in this Agreement shall be deemed or construed to create a partnership, joint venture, agency, employment, or fiduciary relationship between the Parties, or to authorize either Party to act as agent for the other or to bind the other Party to any obligation or commitment. Each Party is and shall remain an independent party with respect to all matters arising under or relating to this Agreement.

9.10 Interpretation. The headings and captions used in this Agreement are for convenience of reference only and shall not affect the meaning, interpretation, or construction of any provision of this Agreement. The terms "include," "includes," and "including" shall be deemed to be followed by the phrase "without limitation" and shall not be construed to limit any general statement that they follow to the specific or similar items or matters immediately following them. This Agreement shall be construed without regard to any presumption or rule requiring construction or interpretation against the Party drafting or causing any instrument to be drafted. Each Party acknowledges that it has been represented by legal counsel in the negotiation, preparation, and execution of this Agreement and that this Agreement has been the product of arm's-length negotiation between the Parties.

9.11 Expenses. Except as otherwise expressly provided in this Agreement or the Settlement Agreement, each Party shall bear and pay its own costs and expenses (including legal fees and expenses) incurred in connection with the negotiation, preparation, execution, and performance of this Agreement.

[Signature Page Follows]

IN WITNESS WHEREOF, the Parties have caused this Mutual Termination Agreement to be duly executed by their respective authorized representatives as of the Effective Date first written above.

NEXFORD INDUSTRIAL HOLDINGS INC.

By: ________

Name: Martin Schaeffer

Title: Chief Executive Officer

Date: August __, 2023

CARDINAL PEAK INDUSTRIES

By: ________

Name: Frank Delacroix

Title: President & Chief Executive Officer

Date: August __, 2023

EXHIBIT A

SCHEDULE OF OUTSTANDING PURCHASE ORDERS

This Exhibit A shall be completed, mutually agreed upon, and executed by the Parties within five (5) business days after the Effective Date (August 31, 2023), in accordance with Section 3.2 of the Agreement.

The following schedule shall set forth all open and undelivered purchase orders issued by Nexford under the MSA (Reference No. MSA-NIH-CPI-2020-001) as of the Effective Date. All listed purchase orders are to be fulfilled by Cardinal Peak during the Transition Period, which expires on October 31, 2023. Pricing shall be in accordance with Section 3.3 of the Agreement (base prices in effect under the MSA as of the Effective Date, with no surcharges).

Total HRC Tons: ___

Total CRC Tons: ___

Total Tons (All Products): ___

Estimated Aggregate Value: $___

Confirmed and Agreed:

NEXFORD INDUSTRIAL HOLDINGS INC.

By: ________

Name: Deborah Whitfield

Title: General Counsel

Date: ________

CARDINAL PEAK INDUSTRIES

By: ________

Name: Patricia Morrow

Title: General Counsel

Date: ________

PO Number

MUTUAL TERMINATION AGREEMENT
This Mutual Termination Agreement (this "Agreement") is entered into and made effective as of August 31, 2023 (the "Effective Date"), by and between:
Nexford Industrial Holdings Inc., a corporation organized and existing under the laws of the State of Delaware, with its principal place of business and headquarters located at 4200 West Lakeshore Industrial Parkway, Suite 300, Waukegan, Illinois 60085 (hereinafter referred to as "Buyer" or "Nexford"),
and
Cardinal Peak Industries, a limited liability company organized and existing under the laws of the State of Colorado, with its principal place of business and headquarters located at 1580 Ridgeline Boulevard, Pueblo, Colorado 81001 (hereinafter referred to as "Seller" or "Cardinal Peak").
Nexford and Cardinal Peak are each individually referred to herein as a "Party" and collectively as the "Parties."
RECITALS
WHEREAS, Nexford and Cardinal Peak entered into that certain Master Supply Agreement dated January 15, 2020, bearing reference number MSA-NIH-CPI-2020-001 (the "MSA"), pursuant to which Cardinal Peak agreed to supply hot-rolled coil ("HRC") and cold-rolled coil ("CRC") steel products to Nexford on a long-term basis, with base pricing of Six Hundred Twenty Dollars ($620.00) per ton for HRC and Seven Hundred Forty Dollars ($740.00) per ton for CRC, estimated annual supply volumes of approximately eighteen thousand (18,000) tons of HRC and six thousand five hundred (6,500) tons of CRC (approximately twenty-four thousand five hundred (24,500) tons per year in the aggregate), and an estimated aggregate annual spend of approximately Fifteen Million Nine Hundred Seventy Thousand Dollars ($15,970,000);
WHEREAS, the MSA had an initial term of three (3) years commencing on January 15, 2020 and expiring on January 14, 2023, with automatic renewal for successive one (1) year periods thereafter unless terminated by either Party upon not less than one hundred eighty (180) days' prior written notice to the other Party;
WHEREAS, disputes arose between the Parties regarding the calculation, documentation, and payment of raw-material surcharges assessed by Cardinal Peak under Section 7.4 of the MSA during the period from March 2021 through May 2022, including but not limited to disagreements regarding the methodology for calculating scrap surcharges, alloy surcharges, and energy surcharges, and the sufficiency of supporting documentation provided by Cardinal Peak to substantiate those surcharges, which disputes resulted in litigation captioned Cardinal Peak Industries v. Nexford Industrial Holdings Inc., Case No. 2022-L-008471, filed in the Circuit Court of Cook County, Illinois, County Department, Law Division (the "Litigation");
WHEREAS, the Parties participated in a court-ordered mediation on August 2, 2023 before the Honorable Catherine Lindström (Ret.) at the Great Lakes Dispute Resolution Center, located in Chicago, Illinois, during which the Parties engaged in good-faith negotiations and reached a settlement in principle resolving all claims and counterclaims asserted or that could have been asserted in the Litigation, which settlement was subsequently memorialized in a Settlement Agreement and Mutual Release executed by the Parties on August 18, 2023 (the "Settlement Agreement");
WHEREAS, pursuant to the terms and conditions of the Settlement Agreement, the Parties agreed, among other things, to terminate the MSA by mutual written agreement and to provide for an orderly wind-down of all outstanding purchase orders and the commercial relationship between the Parties under the MSA; and
WHEREAS, the Parties now desire to formally and irrevocably terminate the MSA on the terms and conditions set forth in this Agreement, and to memorialize their mutual understanding regarding the transition of outstanding obligations, the treatment of confidential information, and the continuing effect of certain surviving provisions of the MSA.
NOW, THEREFORE, in consideration of the foregoing recitals, the mutual covenants and agreements contained herein, the terms and conditions of the Settlement Agreement, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by each Party, the Parties agree as follows:
ARTICLE 1 — DEFINITIONS
1.1 Defined Terms. Capitalized terms used but not otherwise defined in this Agreement shall have the meanings ascribed to them in the MSA (Reference No. MSA-NIH-CPI-2020-001). In addition to the terms defined elsewhere in this Agreement, the following terms shall have the meanings set forth below:
(a) "Agreement" means this Mutual Termination Agreement, including all exhibits and schedules attached hereto, as the same may be amended, modified, or supplemented from time to time in accordance with the terms hereof.
(b) "Confidential Information" has the meaning ascribed to such term in Article 12 of the MSA, and shall include, without limitation, all non-public information disclosed by one Party to the other in connection with the MSA, this Agreement, or the Settlement Agreement, including pricing data, cost structures, customer lists, manufacturing specifications, technical drawings, product formulations, forecasts, business plans, and any copies, summaries, extracts, or derivative works thereof.
(c) "Effective Date" means August 31, 2023.
(d) "MSA" means the Master Supply Agreement dated January 15, 2020 (Reference No. MSA-NIH-CPI-2020-001), entered into by and between Nexford and Cardinal Peak, including all exhibits, schedules, amendments, supplements, side letters, and change orders thereto, including without limitation Exhibit A (Product Specifications), Exhibit B (Pricing Schedule), Exhibit C (Surcharge Methodology), Exhibit D (Quality Assurance Requirements), and any amendments executed by the Parties during the term of the MSA.
(e) "Outstanding Purchase Orders" means all purchase orders issued by Nexford under the MSA that are open, accepted, and undelivered (in whole or in part) as of the Effective Date, as more particularly identified and described in Exhibit A hereto.
(f) "Settlement Agreement" means the Settlement Agreement and Mutual Release executed by the Parties on August 18, 2023, resolving the Litigation and related disputes between the Parties.
(g) "Transition Period" means the period commencing on the Effective Date and ending at 11:59 p.m. Central Time on October 31, 2023, during which the Parties shall complete the wind-down of outstanding obligations as set forth in Article 3 of this Agreement.
1.2 Rules of Construction. For purposes of this Agreement: (a) the words "herein," "hereof," "hereby," "hereunder," and words of similar import refer to this Agreement as a whole and not to any particular provision; (b) references to an "Article," "Section," or "Exhibit" refer to the applicable article, section, or exhibit of this Agreement unless otherwise specified; (c) the terms "include," "includes," and "including" shall be deemed to be followed by the words "without limitation"; (d) references to any agreement, instrument, or document shall mean such agreement, instrument, or document as amended, supplemented, or modified from time to time; and (e) references to any law, statute, or regulation shall include all statutory and regulatory provisions consolidating, amending, replacing, or interpreting such law, statute, or regulation.
ARTICLE 2 — TERMINATION OF THE MSA
2.1 Mutual Termination. The Parties hereby mutually and irrevocably agree to terminate the MSA, effective as of 11:59 p.m. Central Time on the Effective Date (August 31, 2023). From and after the Effective Date, neither Party shall have any further rights, obligations, duties, or liabilities under the MSA, except as expressly set forth in this Agreement, as provided in the Settlement Agreement, or as provided in Article 7 (Surviving Provisions) of this Agreement. The termination effected hereby is a termination by mutual written agreement of the Parties and is not a termination for cause, default, or breach by either Party.
2.2 No Termination Fee or Penalty. The termination of the MSA pursuant to this Agreement shall not give rise to, and neither Party shall be entitled to claim, any termination fee, early termination penalty, breakage cost, damages claim, lost profits, loss of bargain, or other liability or obligation of either Party to the other Party, whether under the MSA, at law, in equity, or otherwise, except as otherwise expressly provided in the Settlement Agreement. Each Party hereby waives any and all rights to seek or recover any such termination fee, penalty, or damages from the other Party in connection with the termination of the MSA effected by this Agreement.
2.3 Waiver of Notice Period. Each Party hereby expressly and irrevocably waives the one hundred eighty (180) day prior written notice requirement for termination of the MSA, as set forth in the renewal and termination provisions of the MSA. The Parties acknowledge and agree that the execution and delivery of this Mutual Termination Agreement by both Parties satisfies all procedural and substantive requirements for termination of the MSA, including any notice, cure, or waiting period requirements, and that no further notice of termination is required or shall be given by either Party. Each Party confirms that it has received adequate consideration for this waiver and that this waiver is given knowingly and voluntarily.
2.4 Confirmation of Termination. Upon the Effective Date, the MSA shall be deemed terminated and of no further force or effect, and neither Party shall hold itself out to any third party as a supplier, customer, agent, representative, or partner of the other Party under the MSA. Each Party shall promptly take all actions reasonably necessary to effectuate and confirm the termination of the MSA, including the provision of any notices to third parties as may be reasonably requested by the other Party.
ARTICLE 3 — TRANSITION PERIOD AND OUTSTANDING PURCHASE ORDERS
3.1 Transition Period. Notwithstanding the termination of the MSA on the Effective Date as set forth in Article 2, the Parties agree to an orderly wind-down of their commercial relationship during a Transition Period commencing on the Effective Date and ending at 11:59 p.m. Central Time on October 31, 2023. During the Transition Period, Cardinal Peak shall fulfill all Outstanding Purchase Orders in accordance with the terms and conditions of this Article 3, and both Parties shall cooperate in good faith to ensure a smooth and orderly transition.
3.2 Outstanding Purchase Orders. Cardinal Peak shall use commercially reasonable efforts to complete, manufacture, and deliver all Outstanding Purchase Orders issued by Nexford under the MSA that are open, accepted, and undelivered (in whole or in part) as of the Effective Date. A comprehensive schedule of all Outstanding Purchase Orders, including each purchase order number, product type (HRC or CRC), quantity in tons, applicable base price per ton, requested delivery date, and designated delivery location, shall be mutually reviewed, confirmed, and agreed upon by the Parties within five (5) business days after the Effective Date, and such schedule shall be attached hereto and incorporated herein as Exhibit A. In the event of any discrepancy between a Party's records regarding an Outstanding Purchase Order, the Parties shall work together in good faith to reconcile such discrepancy within an additional five (5) business days. The schedule set forth in Exhibit A, once mutually agreed upon and executed by the Parties, shall constitute the definitive list of Outstanding Purchase Orders to be fulfilled during the Transition Period.
3.3 Pricing During Transition Period. All Outstanding Purchase Orders fulfilled and delivered during the Transition Period shall be invoiced at the base prices in effect under the MSA as of the Effective Date—that is, the most recent quarterly-adjusted base prices established pursuant to Section 7.2 of the MSA—without any additional surcharges, adjustments, escalation factors, or price increases of any kind whatsoever. For the avoidance of doubt, Section 7.4 of the MSA (Surcharge Clause), including but not limited to scrap surcharges, alloy surcharges, energy surcharges, and any other raw-material or cost-based surcharges, shall not apply to any deliveries made during the Transition Period and shall have no force or effect with respect to any Outstanding Purchase Orders. The Parties acknowledge that the pricing terms set forth in this Section 3.3 were a material element of the settlement reached in connection with the Settlement Agreement and reflect the mutual agreement of the Parties.
3.4 Payment Terms During Transition Period. Payment for all products delivered by Cardinal Peak to Nexford during the Transition Period shall be due net thirty (30) days from the date of Cardinal Peak's invoice for such delivery, consistent with the standard payment terms established under the MSA. All invoices submitted by Cardinal Peak during the Transition Period shall comply with the invoicing requirements of the MSA and shall clearly reference the applicable purchase order number, product type, quantity delivered, and unit price. Nexford shall remit payment by wire transfer to the bank account designated by Cardinal Peak in writing, or by such other method as the Parties may mutually agree.
3.5 No New Purchase Orders. Nexford shall not issue, and Cardinal Peak shall not accept, any new purchase orders under the MSA after the Effective Date. The obligation of Cardinal Peak to supply steel products to Nexford after the Effective Date is strictly limited to the fulfillment of Outstanding Purchase Orders during the Transition Period as set forth in this Article 3. Any additional steel supply requirements of Nexford arising after the Effective Date shall be procured by Nexford from alternative suppliers at Nexford's sole discretion and expense, and Cardinal Peak shall have no obligation to supply such requirements.
3.6 Delivery and Acceptance. Delivery, inspection, acceptance, and rejection of products during the Transition Period shall be governed by the applicable provisions of the MSA (including, without limitation, Sections 4.1 through 4.6 and Section 5 of the MSA relating to shipping terms, risk of loss, inspection, acceptance, and rejection), which provisions are hereby incorporated by reference into this Agreement solely for the limited purpose of governing the fulfillment of Outstanding Purchase Orders during the Transition Period. Cardinal Peak shall deliver all products in accordance with the delivery schedules set forth in Exhibit A, and shall provide Nexford with standard shipping documentation, mill test reports, and certificates of conformance as required under the MSA.
3.7 Failure to Fulfill. If Cardinal Peak is unable to fulfill any Outstanding Purchase Order, in whole or in part, during the Transition Period due to force majeure events (as defined in the MSA), capacity constraints, raw material unavailability, or other circumstances beyond Cardinal Peak's reasonable control, Cardinal Peak shall promptly notify Nexford in writing, specifying the nature of the impediment, the affected purchase order(s), the estimated quantity that cannot be fulfilled, and the expected duration of the impediment. Upon receipt of such notice, the affected purchase order (or the unfulfilled portion thereof) shall be cancelled without liability, cost, or penalty to either Party. Cardinal Peak shall use commercially reasonable efforts to mitigate the impact of any such impediment and to fulfill as much of the affected purchase order as is practicable under the circumstances.
3.8 End of Transition Period. Upon the expiration of the Transition Period on October 31, 2023, all remaining Outstanding Purchase Orders that have not been fulfilled shall be deemed cancelled, and Cardinal Peak shall have no further obligation to manufacture, deliver, or supply any products to Nexford. Neither Party shall have any further claim or liability to the other Party with respect to any cancelled Outstanding Purchase Orders, except for amounts due and payable for products actually delivered during the Transition Period.
ARTICLE 4 — RETURN OF CONFIDENTIAL INFORMATION
4.1 Return or Destruction of Confidential Information. Within thirty (30) calendar days after the expiration of the Transition Period (i.e., by no later than November 30, 2023), each Party shall, at its own cost and expense, return to the other Party, or at the disclosing Party's written election destroy, all Confidential Information of the other Party in its possession, custody, or control, in whatever form or medium such Confidential Information may exist. Such Confidential Information includes, but is not limited to, pricing data, cost structures, raw material procurement information, customer lists, supplier lists, manufacturing specifications, technical drawings, product formulations, quality assurance protocols, engineering data, tooling specifications, process documentation, business forecasts, financial projections, and any and all copies, summaries, abstracts, compilations, notes, analyses, or extracts derived therefrom. Each Party shall make reasonable and diligent efforts to identify and locate all such Confidential Information within its organization, including in the possession of its employees, contractors, agents, and advisors who received access to such Confidential Information in connection with the MSA.
4.2 Certification of Destruction. If a Party elects to destroy Confidential Information of the other Party rather than return it pursuant to Section 4.1, such Party shall, within ten (10) business days after completing the destruction, provide to the disclosing Party a written certification signed by an authorized officer of the destroying Party, confirming that all such Confidential Information has been destroyed in a commercially reasonable manner that prevents reconstruction, recovery, or unauthorized access, including the secure deletion of electronic files and the physical destruction of tangible materials. Such certification shall describe in reasonable detail the categories and approximate volume of materials destroyed and the method of destruction employed.
4.3 Exceptions. Notwithstanding the obligations set forth in Sections 4.1 and 4.2, each Party may retain:
(a) one (1) archival copy of the other Party's Confidential Information solely for legal compliance, audit, regulatory, and record-keeping purposes, which archival copy shall be stored in a secure, access-controlled location (whether physical or electronic) with access limited to such Party's legal counsel and compliance personnel, and shall not be used for any commercial, competitive, or business purpose;
(b) any Confidential Information contained in automated electronic backup systems or disaster recovery archives, provided that (i) such backup systems operate in the ordinary course and are not accessed for purposes unrelated to system recovery, (ii) such retained Confidential Information remains subject to the confidentiality obligations of the MSA and this Agreement for the full duration of the surviving confidentiality period, and (iii) such Confidential Information is deleted in accordance with the receiving Party's standard data retention and purge schedules; and
(c) any Confidential Information that the receiving Party is required by law, regulation, court order, or governmental directive to retain, provided that the receiving Party gives prompt written notice to the disclosing Party of such requirement (to the extent legally permissible) and retains only such Confidential Information as is strictly necessary to comply with such requirement.
4.4 Continuing Confidentiality Obligations. The confidentiality obligations set forth in Article 12 of the MSA with respect to Confidential Information, as supplemented by this Article 4, shall survive the termination of the MSA and this Agreement and shall remain in full force and effect for a period of three (3) years following the Effective Date (i.e., through August 31, 2026), or such longer period as may be required by applicable law or as may be specified in the MSA with respect to particular categories of Confidential Information (including, without limitation, trade secrets, which shall remain protected for so long as they qualify as trade secrets under applicable law). During such survival period, each Party shall continue to maintain the confidentiality of the other Party's Confidential Information with at least the same degree of care that it uses to protect its own confidential information of a similar nature, but in no event less than a reasonable degree of care.
ARTICLE 5 — RELEASES AND RELATIONSHIP TO SETTLEMENT AGREEMENT
5.1 Incorporation of Settlement Agreement. The Parties acknowledge and agree that this Agreement is entered into in connection with, and pursuant to the terms and conditions of, the Settlement Agreement dated August 18, 2023, which resolved all claims and counterclaims between the Parties arising out of the Litigation (Case No. 2022-L-008471, Circuit Court of Cook County, Illinois). Nothing in this Agreement is intended to, nor shall it, modify, amend, supersede, limit, or otherwise affect the terms and conditions of the Settlement Agreement, including, without limitation, the mutual releases, payment obligations, representations, warranties, and other covenants set forth therein. In the event of any conflict or inconsistency between the terms of this Agreement and the terms of the Settlement Agreement, the terms of the Settlement Agreement shall control and prevail, except with respect to the specific transition and wind-down provisions set forth in Article 3 of this Agreement, which are supplemental to and not in conflict with the Settlement Agreement.
5.2 No Additional Claims. Except as expressly set forth in the Settlement Agreement and this Agreement, each Party, on behalf of itself and its respective parents, subsidiaries, affiliates, predecessors, successors, assigns, officers, directors, managers, members, employees, agents, attorneys, insurers, and representatives (collectively, "Releasing Parties"), hereby irrevocably and unconditionally releases and forever discharges the other Party and its respective parents, subsidiaries, affiliates, predecessors, successors, assigns, officers, directors, managers, members, employees, agents, attorneys, insurers, and representatives (collectively, "Released Parties") from any and all claims, demands, causes of action, suits, debts, dues, sums of money, accounts, reckonings, bonds, bills, covenants, contracts, controversies, agreements, promises, damages, judgments, executions, liabilities, and obligations of any kind whatsoever, whether known or unknown, suspected or unsuspected, disclosed or undisclosed, matured or unmatured, accrued or unaccrued, fixed or contingent, direct or indirect, whether at law, in equity, or otherwise, arising out of or relating to the MSA, the performance or non-performance of obligations under the MSA, the surcharge dispute (including the calculation, documentation, invoicing, and payment of surcharges under Section 7.4 of the MSA during the period from March 2021 through May 2022), the Litigation (Case No. 2022-L-008471), and any and all matters, transactions, events, occurrences, acts, omissions, and circumstances that were asserted, could have been asserted, or might in the future be asserted in connection with the Litigation or the MSA.
5.3 Reservation of Rights Under This Agreement and Settlement Agreement. Notwithstanding the broad release set forth in Section 5.2 above, each Party expressly reserves, and nothing in this Agreement shall be deemed to release, waive, or diminish, all rights, remedies, claims, and causes of action arising under or in connection with (a) this Agreement, including, without limitation, the right to enforce the transition obligations set forth in Article 3, the confidential information obligations set forth in Article 4, the product warranty and liability provisions set forth in Article 8, and the general provisions set forth in Article 9; and (b) the Settlement Agreement, including, without limitation, the right to enforce the payment obligations, mutual releases, dismissal obligations, and other terms and conditions set forth therein.
ARTICLE 6 — REPRESENTATIONS AND WARRANTIES
6.1 Mutual Representations and Warranties. Each Party hereby represents and warrants to the other Party, as of the Effective Date, as follows:
(a) Organization and Good Standing. Such Party is duly organized, validly existing, and in good standing under the laws of its jurisdiction of formation (in the case of Nexford, the State of Delaware; in the case of Cardinal Peak, the State of Colorado) and has all requisite corporate or company power and authority to own, lease, and operate its properties and to carry on its business as presently conducted.
(b) Power and Authority. Such Party has full corporate or company power and authority to execute, deliver, and perform its obligations under this Agreement and to consummate the transactions contemplated hereby.
(c) Due Authorization. The execution, delivery, and performance of this Agreement by such Party has been duly and validly authorized by all necessary corporate or company action, including any required approval of such Party's board of directors, board of managers, or other governing body, and no other corporate or company proceedings on the part of such Party are necessary to authorize the execution, delivery, or performance of this Agreement.
(d) Binding Obligation. This Agreement constitutes the legal, valid, and binding obligation of such Party, enforceable against such Party in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance, and other similar laws affecting creditors' rights generally, and subject to general principles of equity (regardless of whether enforcement is sought in a proceeding at law or in equity).
(e) No Conflicts. The execution, delivery, and performance of this Agreement by such Party does not and will not (i) violate, conflict with, or result in a breach of, any provision of such Party's certificate of incorporation, bylaws, operating agreement, or other organizational documents; (ii) violate, conflict with, or result in a breach or default under (with or without the giving of notice or the lapse of time, or both), any contract, agreement, instrument, permit, license, order, judgment, decree, or other obligation to which such Party is a party or by which such Party or any of its properties or assets is bound; or (iii) violate any applicable law, statute, rule, regulation, ordinance, or order of any governmental authority having jurisdiction over such Party.
6.2 No Additional Representations. Except for the representations and warranties expressly set forth in this Section 6.1 and in the Settlement Agreement, neither Party makes any representations or warranties, express or implied, to the other Party in connection with this Agreement or the termination of the MSA.
ARTICLE 7 — SURVIVING PROVISIONS
7.1 Survival of Certain MSA Provisions. Notwithstanding the termination of the MSA as set forth in Article 2 of this Agreement, the following provisions of the MSA shall survive such termination and shall remain in full force and effect in accordance with their respective terms, to the extent applicable:
(a) Article 10 — Indemnification. All indemnification obligations of the Parties set forth in Article 10 of the MSA, including Cardinal Peak's indemnification of Nexford for product liability claims, personal injury, property damage, and intellectual property infringement, and Nexford's indemnification of Cardinal Peak for misuse of products and other specified matters, shall survive the termination of the MSA with respect to all products delivered by Cardinal Peak to Nexford prior to the Effective Date or during the Transition Period. Such indemnification obligations shall continue for the period specified in the MSA or, if no specific period is stated, for the applicable statute of limitations period under governing law.
(b) Article 11 — Limitation of Liability. The limitation of liability provisions set forth in Article 11 of the MSA, including limitations on consequential, incidental, indirect, special, and punitive damages and any aggregate liability caps, shall survive termination of the MSA and shall continue to apply with respect to any claims arising from or relating to products delivered prior to the Effective Date or during the Transition Period.
(c) Article 12 — Confidentiality. The confidentiality provisions set forth in Article 12 of the MSA shall survive termination of the MSA as supplemented and modified by Article 4 of this Agreement. To the extent of any inconsistency between Article 12 of the MSA and Article 4 of this Agreement, the provisions of this Agreement shall control.
(d) Article 13 — Intellectual Property. The intellectual property provisions set forth in Article 13 of the MSA, including provisions governing the ownership, use, return, and disposition of tooling, dies, molds, proprietary specifications, technical data, and other intellectual property developed or used in connection with the MSA, shall survive termination of the MSA. Each Party shall retain ownership of its pre-existing intellectual property, and any jointly developed intellectual property shall be governed in accordance with the terms of Article 13.
(e) Section 15.2 — Governing Law. The governing law provision set forth in Section 15.2 of the MSA, which provides that the MSA shall be governed by and construed in accordance with the laws of the State of Illinois without regard to conflicts-of-law principles, shall survive termination of the MSA and shall continue to govern the interpretation and enforcement of the surviving provisions of the MSA.
(f) Section 15.4 — Dispute Resolution. The dispute resolution provisions set forth in Section 15.4 of the MSA, including any provisions relating to mandatory mediation, arbitration, or the selection of forum and venue, shall survive termination of the MSA and shall apply to any disputes arising under or relating to the surviving provisions of the MSA identified in this Section 7.1.
7.2 Survival of This Agreement. The provisions of this Agreement shall survive the Effective Date and the termination of the MSA as follows:
(a) The transition obligations set forth in Article 3 shall survive through the end of the Transition Period (October 31, 2023) and, with respect to payment obligations for products delivered during the Transition Period, for the applicable payment period thereafter;
(b) The confidential information obligations set forth in Article 4 shall survive for the periods specified therein, including the three (3) year confidentiality survival period following the Effective Date;
(c) The releases set forth in Article 5 shall survive in perpetuity;
(d) The representations and warranties set forth in Article 6 shall survive the Effective Date;
(e) The surviving provisions of the MSA identified in Article 7 shall continue for the periods specified therein;
(f) The product warranty and liability provisions set forth in Article 8 shall survive for the warranty periods specified in the MSA; and
(g) The general provisions set forth in Article 9 shall survive the Effective Date and shall remain enforceable until all obligations under this Agreement have been fully performed.
ARTICLE 8 — PRODUCT WARRANTY AND LIABILITY FOR PRE-TERMINATION DELIVERIES
8.1 Continuing Product Warranties. All product warranties provided by Cardinal Peak under the MSA with respect to HRC and CRC steel products delivered to Nexford prior to the Effective Date or during the Transition Period shall continue in full force and effect for the warranty period specified in the MSA, notwithstanding the termination of the MSA. Such warranties include, without limitation, warranties that all products delivered by Cardinal Peak (a) conform to the specifications set forth in the applicable purchase order and Exhibit A to the MSA; (b) are free from defects in materials and workmanship; (c) comply with all applicable industry standards, including relevant ASTM specifications; and (d) are merchantable and fit for the particular purposes for which they were supplied, to the extent such fitness warranty is provided under the MSA. Cardinal Peak shall honor all valid warranty claims submitted by Nexford in accordance with the warranty claims procedures set forth in the MSA.
8.2 Claims for Defective Products. Nexford retains the right to make warranty claims, product quality claims, and to seek indemnification under Article 10 of the MSA with respect to any defective, non-conforming, or substandard products delivered by Cardinal Peak prior to the Effective Date or during the Transition Period, subject to the notice requirements, procedural requirements, time limitations, and cure provisions set forth in the MSA. For the avoidance of doubt, Nexford's rights under this Section 8.2 include the right to seek replacement of defective products, credit for the purchase price of rejected products, reimbursement of costs incurred in connection with product recalls, and indemnification for third-party claims arising from defective products, all in accordance with and subject to the limitations of the MSA.
8.3 Cooperation. In the event of any product warranty claim or product liability claim arising from products delivered prior to the Effective Date or during the Transition Period, each Party shall cooperate with the other Party in good faith, including by providing reasonable access to relevant records, test results, mill certifications, inspection reports, and other documentation necessary to investigate and resolve such claims.
ARTICLE 9 — GENERAL PROVISIONS
9.1 Governing Law. This Agreement shall be governed by, and construed and enforced in accordance with, the internal laws of the State of Illinois, without giving effect to any choice-of-law or conflicts-of-law rules or provisions (whether of the State of Illinois or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of Illinois. Each Party hereby irrevocably consents to the exclusive jurisdiction and venue of the state and federal courts located in Cook County, Illinois, for any action, suit, or proceeding arising out of or relating to this Agreement, and each Party irrevocably waives any objection to such jurisdiction or venue, including any objection based on inconvenient forum.
9.2 Entire Agreement. This Agreement, together with the Settlement Agreement dated August 18, 2023 and the MSA (solely to the extent of the surviving provisions identified in Article 7 of this Agreement), constitutes the entire agreement between the Parties with respect to the subject matter hereof and supersedes all prior and contemporaneous agreements, understandings, negotiations, discussions, representations, warranties, and communications, whether written or oral, relating to the termination of the MSA and the subject matter of this Agreement. Each Party acknowledges that it has not relied upon any statement, representation, warranty, or agreement of the other Party except as expressly set forth in this Agreement and the Settlement Agreement.
9.3 Amendment; Waiver. This Agreement may not be amended, modified, or supplemented except by a written instrument duly executed by authorized representatives of both Parties. No waiver of any provision of this Agreement, or of any right or remedy hereunder, shall be effective unless set forth in a written instrument signed by the Party to be bound thereby. No failure or delay by either Party in exercising any right, power, or privilege under this Agreement shall operate as a waiver thereof, nor shall any single or partial exercise of any such right, power, or privilege preclude any other or further exercise thereof or the exercise of any other right, power, or privilege. The rights and remedies provided in this Agreement are cumulative and not exclusive of any rights or remedies provided by law.
9.4 Severability. If any provision of this Agreement (or any portion thereof) is held to be invalid, illegal, or unenforceable by a court of competent jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other provision of this Agreement (or the remaining portion of such provision), and the remaining provisions of this Agreement shall continue in full force and effect. In the event any provision is held to be invalid, illegal, or unenforceable, the Parties shall negotiate in good faith to replace such provision with a valid, legal, and enforceable provision that, to the greatest extent possible, achieves the original intent and economic effect of the invalid provision.
9.5 Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, and all of which together shall constitute one and the same instrument. Execution and delivery of this Agreement by facsimile, portable document format (PDF), or other electronic transmission of signature pages shall be deemed original execution and delivery for all purposes, and each Party agrees that electronic signatures shall have the same legal effect, validity, and enforceability as original ink signatures.
9.6 Notices. All notices, requests, demands, consents, waivers, and other communications required or permitted under this Agreement shall be in writing and shall be deemed to have been duly given: (a) when delivered personally; (b) one (1) business day after being sent by a nationally recognized overnight courier service (with tracking confirmation); (c) three (3) business days after being sent by certified or registered mail, postage prepaid, return receipt requested; or (d) when transmitted by email (with confirmation of receipt), in each case to the following addresses (or to such other address as a Party may designate in a written notice delivered in accordance with this Section):
If to Nexford:
Nexford Industrial Holdings Inc. 4200 West Lakeshore Industrial Parkway, Suite 300 Waukegan, Illinois 60085
Attention: Deborah Whitfield, General Counsel
With a copy (which shall not constitute notice) to:
Calderwood & Harkness LLP 200 South Wacker Drive, Suite 4400 Chicago, Illinois 60606
Attention: Priya Anand
If to Cardinal Peak:
Cardinal Peak Industries 1580 Ridgeline Boulevard Pueblo, Colorado 81001
Attention: Patricia Morrow, General Counsel
With a copy (which shall not constitute notice) to:
Blackwood Stein & Associates LLP 717 Seventeenth Street, Suite 2200 Denver, Colorado 80202
Attention: Garrett Blackwood
9.7 Assignment. Neither Party may assign, delegate, transfer, or otherwise convey any of its rights or obligations under this Agreement without the prior written consent of the other Party, which consent may be withheld in the non-assigning Party's sole discretion; provided, however, that Nexford may, without the prior consent of Cardinal Peak, assign this Agreement (in whole or in part) to any affiliate, subsidiary, parent company, or successor-in-interest of Nexford, whether by merger, consolidation, reorganization, sale of substantially all of Nexford's assets, or otherwise, provided that any such assignee assumes in writing all of Nexford's obligations under this Agreement. Any purported assignment in violation of this Section 9.7 shall be null and void and of no force or effect.
9.8 No Third-Party Beneficiaries. This Agreement is entered into solely for the benefit of the Parties and their respective successors and permitted assigns, and nothing in this Agreement, express or implied, is intended to or shall confer upon any third party (including any employee, contractor, agent, customer, supplier, or creditor of either Party) any legal or equitable right, benefit, claim, cause of action, or remedy of any nature whatsoever under or by reason of this Agreement.
9.9 Relationship of Parties. Nothing contained in this Agreement shall be deemed or construed to create a partnership, joint venture, agency, employment, or fiduciary relationship between the Parties, or to authorize either Party to act as agent for the other or to bind the other Party to any obligation or commitment. Each Party is and shall remain an independent party with respect to all matters arising under or relating to this Agreement.
9.10 Interpretation. The headings and captions used in this Agreement are for convenience of reference only and shall not affect the meaning, interpretation, or construction of any provision of this Agreement. The terms "include," "includes," and "including" shall be deemed to be followed by the phrase "without limitation" and shall not be construed to limit any general statement that they follow to the specific or similar items or matters immediately following them. This Agreement shall be construed without regard to any presumption or rule requiring construction or interpretation against the Party drafting or causing any instrument to be drafted. Each Party acknowledges that it has been represented by legal counsel in the negotiation, preparation, and execution of this Agreement and that this Agreement has been the product of arm's-length negotiation between the Parties.
9.11 Expenses. Except as otherwise expressly provided in this Agreement or the Settlement Agreement, each Party shall bear and pay its own costs and expenses (including legal fees and expenses) incurred in connection with the negotiation, preparation, execution, and performance of this Agreement.
[Signature Page Follows]
IN WITNESS WHEREOF, the Parties have caused this Mutual Termination Agreement to be duly executed by their respective authorized representatives as of the Effective Date first written above.
NEXFORD INDUSTRIAL HOLDINGS INC.
By: ________
Name: Martin Schaeffer
Title: Chief Executive Officer
Date: August __, 2023
CARDINAL PEAK INDUSTRIES
By: ________
Name: Frank Delacroix
Title: President & Chief Executive Officer
Date: August __, 2023
EXHIBIT A
SCHEDULE OF OUTSTANDING PURCHASE ORDERS
This Exhibit A shall be completed, mutually agreed upon, and executed by the Parties within five (5) business days after the Effective Date (August 31, 2023), in accordance with Section 3.2 of the Agreement.
The following schedule shall set forth all open and undelivered purchase orders issued by Nexford under the MSA (Reference No. MSA-NIH-CPI-2020-001) as of the Effective Date. All listed purchase orders are to be fulfilled by Cardinal Peak during the Transition Period, which expires on October 31, 2023. Pricing shall be in accordance with Section 3.3 of the Agreement (base prices in effect under the MSA as of the Effective Date, with no surcharges).
Total HRC Tons: ___
Total CRC Tons: ___
Total Tons (All Products): ___
Estimated Aggregate Value: $___
Confirmed and Agreed:
NEXFORD INDUSTRIAL HOLDINGS INC.
By: ________
Name: Deborah Whitfield
Title: General Counsel
Date: ________
CARDINAL PEAK INDUSTRIES
By: ________
Name: Patricia Morrow
Title: General Counsel
Date: ________
PO Number | Product Type (HRC/CRC) | Quantity (Tons) | Base Price ($/Ton) | Requested Delivery Date | Delivery Location

MUTUAL TERMINATION AGREEMENT

RECITALS

NEXFORD INDUSTRIAL HOLDINGS INC.

CARDINAL PEAK INDUSTRIES

EXHIBIT A

SCHEDULE OF OUTSTANDING PURCHASE ORDERS

NEXFORD INDUSTRIAL HOLDINGS INC.

CARDINAL PEAK INDUSTRIES

Record

Parties

Dates

Amounts