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EXHIBIT 10.50
MASTER ENERGY PURCHASE AND SALE AGREEMENT
This Master Energy Purchase and Sale Agreement (this "Master Agreement"
and together with all Transactions, collectively, the "Agreement") is entered
into effective as of the 12th day of April, 2001 (the "Effective Date") by and
between Enron Energy Services, Inc., a Delaware corporation ("EESI"), and
Callaway Golf Company, a Delaware corporation ("Customer"). Each of EESI and
Customer may also be referred to individually as "Party" or collectively as
"Parties." The Party selling Energy pursuant to a Transaction shall be referred
to as the "Seller," and the Party purchasing Energy pursuant to a Transaction
shall be referred to as the "Buyer." The definitions set forth in Appendix "1"
shall apply to this Agreement.
SECTION 1.
SCOPE OF AGREEMENT
1.1. SCOPE OF AGREEMENT. From time to time, the Parties may, but shall not be
obligated to, enter into Transactions for the purchase or sale of Energy
hereunder. Each Transaction shall be effectuated and evidenced in accordance
with this Master Agreement and shall constitute a part of this Master Agreement.
The Parties are relying upon the fact that all Transactions, together with this
Master Agreement, shall constitute a single integrated agreement, and that the
Parties would not otherwise enter into any Transaction. Any conflict between
this Master Agreement and a Transaction shall be resolved in favor the
Transaction. This Master Agreement shall govern all Transactions between the
Parties from and after the Effective Date unless expressly stated otherwise and
shall govern all transactions between the Parties entered into prior to the
date hereof that relate to the purchase and sale of Energy.
1.2. TRANSACTION PROCEDURES. Each Transaction shall be effectuated and
evidenced by a written Confirmation Letter executed by the Parties. The
specific terms to be established by the Parties for each Transaction shall
include the identity of the Buyer and Seller, the Period of Delivery, the
Contract Price, the Delivery Point, the Contract Quantity, whether the
Transaction is Firm or Non-Firm and such other terms as the Parties shall agree
upon.
1.3. TERM OF AGREEMENT. The term of this Master Agreement shall commence on
the Effective Date and shall remain in effect for a period of five (5) years
from the Effective Date, and shall thereafter remain in effect until terminated
by either Party on 30 days prior written notice ("Master Term"); provided,
however, that this Master Agreement shall remain in effect with respect to any
Transaction(s) entered into prior to the end of the Master Term until both
Parties have fulfilled all their obligations with respect to such
Transaction(s).
SECTION 2.
REPRESENTATIONS AND WARRANTIES
On the Effective Date and on the date of entering into each Transaction, each
Party represents and warrants to the other Party that: (i) it is duly
organized, validly existing and in good standing under the laws of the
jurisdiction of its formation and is qualified to conduct its business in each
jurisdiction in which a Transaction will be performed by it, (ii) it has all
regulatory authorizations necessary for it to legally perform its obligations
under this Master Agreement and each Transaction, (iii) the execution, delivery
and performance of this Master Agreement and each Transaction are within its
powers, have been duly authorized by all necessary action and do not violate
any of the terms and conditions in its governing documents, any contracts to
which it is a party or any Law applicable to it, (iv) this Master Agreement and
each Transaction when entered into in accordance with this Master Agreement
constitutes its legally valid and binding obligation enforceable against it in
accordance with its terms, subject to any Equitable Defenses, (v) there are no
Bankruptcy Proceedings pending or being contemplated by it or, to its
knowledge, threatened against it, (vi) there are no Legal Proceedings that
materially adversely affect its ability to perform its obligations under this
Master Agreement and each Transaction, and (vii) it has knowledge and
experience in financial matters and the electric industry that enable it to
evaluate the merits and risks of entering into this Master Agreement and each
Transaction.
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SECTION 3.
OBLIGATIONS AND DELIVERIES
3.1. SELLER'S AND BUYER'S OBLIGATIONS. With respect to each Transaction and
subject to the terms of this Master Agreement, Seller shall sell and deliver,
or cause to be delivered, and Buyer shall purchase and receive, or cause to be
received, at the Delivery Point the Contract Quantity, and Buyer shall pay
Seller the Contract Price. Seller shall be responsible for any costs or charges
imposed on or associated with the delivery of the Contract Quantity, including
control area services, inadvertent energy flows, transmission losses and loss
charges relating to the transmission of the Contract Quantity, up to the
Delivery Point. Buyer shall be responsible for any costs or charges imposed on
or associated with the Contract Quantity, including control area services,
inadvertent energy flows, transmission losses and loss charges relating to the
transmission of the Contract Quantity, at and from the Delivery Point.
3.2. TRANSMISSION AND SCHEDULING. Seller shall arrange and be responsible for
transmission service to the Delivery Point and shall Schedule or arrange for
Scheduling services with its Transmission Providers to deliver the Energy to
the Delivery Point. Buyer shall arrange and be responsible for transmission
service at and from the Delivery Point and shall Schedule or arrange for
Scheduling services with its Transmission Providers to receive the Energy at
the Delivery Point. Each Party shall designate authorized representatives or
agents to effect the Scheduling of the Contract Quantity of Energy.
3.3. TITLE, RISK OF LOSS AND INDEMNITY. As between the Parties, Seller shall
be deemed to be in exclusive control (and responsible for any damages or injury
caused thereby) of the Energy prior to the Delivery Point, and Buyer shall be
deemed to be in exclusive control (and responsible for any damages or injury
caused thereby) of the Energy at and from the Delivery Point. Seller warrants
that it will deliver to Buyer the Contract Quantity free and clear of all
liens, claims and encumbrances arising prior to the Delivery Point. Title to
and risk of loss related to the Contract Quantity shall transfer from Seller to
Buyer at the Delivery Point. Seller and Buyer shall each indemnify, defend and
hold harmless the other Party from any Claims arising from any act or incident
occurring when title to the Energy is vested in the indemnifying Party.
3.4. FORCE MAJEURE. If either Party is rendered unable by Force Majeure to
carry out, in whole or in part, its obligations under a Transaction and such
Party gives notice and full details of the event to the other Party as soon as
practicable after the occurrence of the event, then during the pendency of such
Force Majeure but for no longer period, the obligations of the Party affected
by the event (other than the obligation to make payments then due or becoming
due with respect to performance prior to the event) shall be suspended to the
extent required. The party affected by the Force Majeure shall remedy the Force
Majeure with all reasonable dispatch; provided, however, that this provision
shall not require Seller to deliver, or Buyer to receive, Energy at points
other than the Delivery Point.
3.4.1. FORCE MAJEURE SERVICE. In the case of a Force Majeure event,
where EESI is the Seller, EESI will use commercially reasonable efforts to
procure and provide to Customer the Contract Quantity under each affected
Transaction from alternate sources and/or transportation routes or other
available means ("Force Majeure Service"); provided that EESI will perform such
Force Majeure Service only with Customer's consent, and Customer will bear all
incremental costs associated with such Force Majeure Service, which incremental
costs will be separate from and in addition to any amounts due from Customer
under the applicable Transaction.
3.5. BUYER'S COVER REMEDY FOR SELLER'S FAILURE TO DELIVER IN FIRM TRANSACTIONS.
Unless excused by Force Majeure or Buyer's failure to perform, if Seller fails
to Schedule and/or deliver all or part of the Contract Quantity pursuant to a
Firm Transaction, Seller shall pay Buyer an amount for each unit of Energy in
such deficiency equal to the positive difference, if any, obtained by
subtracting the Contract Price from the Replacement Price. "Replacement Price"
means the price at which Buyer, acting in a commercially reasonable manner,
purchases substitute units of Energy not delivered by Seller (plus costs
reasonably incurred by Buyer in purchasing substitute units of Energy, including
additional Transmission Charges and Penalties (to the extent not duplicative of
other charges incurred for Energy), if any, incurred by Buyer) or, absent a
purchase, the market price for such quantity at such Delivery Point as
determined by Buyer in a commercially reasonable manner. Amounts calculated
pursuant to this Section 3.5 shall be subject to Section 5.2. and amounts
payable pursuant to this Section 3.5 shall be
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payable on or before three (3) Business Days after receipt of an invoice from
Buyer.
3.6 SELLER'S COVER REMEDY FOR BUYER'S FAILURE TO RECEIVE IN FIRM TRANSACTIONS.
Unless excused by Force Majeure or Seller's failure to perform, if Buyer fails
to Schedule and/or receive all or part of the Contract Quantity pursuant to a
Firm Transaction, Buyer shall pay Seller an amount for each unit of Energy in
such deficiency equal to the sum of (1) the positive difference, if any,
obtained by subtracting the Sales Price from the Contract Price, and (2)
additional costs reasonably incurred by Seller in reselling such Energy not
received by Buyer, including additional Transmission Charges, if any. "Sales
Price" means the price per unit of Energy at which Seller, acting in a
commercially reasonable manner, resells or would be able to resell (if at all),
the Energy not received by Buyer, including additional Transmission Charges and
Penalties (to the extent not duplicative of other charges incurred for Energy),
if any, incurred by Seller. Amounts calculated pursuant to this Section 3.6
shall be subject to Section 5.2 and amounts payable pursuant to this Section 3.6
shall be payable on or before three (3) Business Days after receipt of an
invoice from Seller.
3.7 FAILURE TO DELIVER/RECEIVE IN NON-FIRM TRANSACTIONS. A Party may be excused
from delivering or receiving the Contract Quantity, in whole or in part, in a
Non-Firm Transaction for any reason without liability unless otherwise provided
in a Confirmation Letter.
SECTION 4.
DEFAULTS AND REMEDIES
4.1. EVENTS OF DEFAULT. An "Event of Default" shall mean with respect to a Party
("Defaulting Party"):
(a) the failure by the Defaulting Party to make, when due, any payment required
pursuant to this Agreement if such failure is not remedied within three (3)
Business Days after written notice of such failure is given to the
Defaulting Party by the other Party ("Non-Defaulting Party") and provided
the payment is not the subject of a good faith dispute as described in
Section 6; or
(b) any representation or warranty made by the Defaulting Party herein shall at
any time prove to be false or misleading in any material respect; or
(c) the failure by the Defaulting Party to perform any covenant set forth in
this Agreement (other than the events that are otherwise specifically
covered in this Section 4.1 as a separate Event of Default or its
obligations to deliver or receive Energy a remedy for which is provided in
Section 3), and such failure is not excused by Force Majeure or cured
within five (5) Business Days after written notice thereof to the
Defaulting Party; or
(d) the Defaulting Party shall be subject to a Bankruptcy Proceeding; or
(e) breach or default of the Defaulting Party or any of its subsidiaries with
respect to any other term of any indebtedness, lease or other obligation in
an amount in excess of $1,000,000, if the effect of such failure, default
or breach is to permit the holder of the indebtedness, lease or other
obligation, with the passage of time, to declare such to be due prior to
its stated maturity.
4.2. EARLY TERMINATION DATE. If an Event of Default occurs with respect to a
Defaulting Party at any time during the Master Term, the Non-Defaulting Party
may, in its sole discretion, for so long as the Event of Default is continuing.
(a) by no more than twenty (20) days notice to the Defaulting Party, designate
a day no earlier than the day such notice is effective as an early
termination date ("Early Termination Date") on which all Transactions shall
terminate (individually a "Terminated Transaction" and collectively the
"Terminated Transactions"); and
(b) withhold any payments due in respect of the Terminated Transactions;
provided, however, upon the occurrence of any Event of Default listed in
item (d) of Section 4.1 as it may apply to any Party, all Transactions and
this Agreement in respect thereof shall automatically terminate, without
notice, and without any other action by either Party as if an Early
Termination Date had been declared immediately prior to such event.
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4.3. TERMINATION PAYMENT CALCULATION.
(a) If an Early Termination Date has been designated, the Non-Defaulting Party
shall in good faith calculate its Gains, Losses and Costs resulting from
the termination of the Terminated Transactions.
As used herein with respect to each Party:
(1) "GAINS" means, with respect to a Party, an amount equal to the
present value of the economic benefit (exclusive of Costs), if any,
to it resulting from the termination of its obligations with respect
to a Terminated Transaction, determined in a commercially reasonable
manner;
(ii) "LOSSES" means, with respect to a Party, an amount equal to the
present value of the economic loss (exclusive of Costs), if any, to
it resulting from the termination of its obligations with respect to
a Terminated Transaction, determined in a commercially reasonable
manner; and
(iii) "COSTS" means, with respect to a Party, brokerage fees, commissions
and other similar transaction costs and expenses reasonably incurred
by such Party either in terminating any arrangement pursuant to which
it has hedged its obligations or entering into new arrangements which
replace a Terminated Transaction, and attorneys' fees, if any,
incurred in connection with enforcing its rights under this
Agreement.
(b) The Gains, Losses and Costs shall be determined by comparing the value of
the remaining term, Contract Quantities and Contract Prices under each
Terminated Transaction had it not been terminated to the equivalent
quantities and relevant market prices for the remaining term either quoted
by a bona fide third-party offer or which are reasonably expected to be
available in the market under a replacement contract for each Terminated
Transaction.
(c) To ascertain the market prices of a replacement contract, the
Non-Defaulting Party may consider, among other valuations, any or all of
the settlement prices of NYMEX Power futures contracts, quotations from
leading dealers in energy swap contracts and other bona fide third party
offers, all adjusted for the length of the remaining term and differences
in transmission.
(d) It is expressly agreed that a Party shall not be required to enter into
replacement transactions in order to determine the Termination Payment
(defined below).
(e) The Non-Defaulting Party shall aggregate such Gains, Losses and Costs with
respect to all Transactions into a single net amount ("Termination
Payment") and notify the Defaulting Party of such amount.
4.4. OBLIGATION TO PAY TERMINATION PAYMENT.
(a) If the Non-Defaulting Party's aggregate Losses and Costs exceed its
aggregate Gains, the Defaulting Party shall, within five (5) Business Days
of receipt of such notice, pay such net amount to the Non-Defaulting Party,
which amount shall bear interest at the Interest Rate from the Early
Termination Date until paid. If the Non-Defaulting Party's aggregate Gains
exceed its aggregate Losses and Costs, there shall be no Early Termination
Payment.
(b) If the Defaulting Party disagrees with the calculation of the Termination
Payment, the issue shall be submitted to arbitration in accordance with the
arbitration procedures set forth in Section 8.8 and the resulting
Termination Payment shall be due and payable within three (3) Business Days
after the award.
(c) Notwithstanding any other provision of this Agreement, if Buyer or Seller
fails to pay to the other Party any amounts when due, the aggrieved Party
shall have the right to (i) suspend performance under any or all
Transactions until such amounts plus interest at the Interest Rate have
been paid and/or (ii) exercise any remedy available at law or in equity to
enforce payment of such amount plus interest at the Interest Rate;
provided, however, if the non-paying Party, in good faith, shall dispute
the amount of any such billing or part thereof and shall pay such amounts
as it concedes to be correct, no suspension shall be permitted.
4.5 OTHER EVENTS. If Buyer is regulated by a federal, state or local regulatory
body, and such body disallows all or any portion of any costs incurred or yet to
be incurred by Buyer under any provision of this Agreement, such
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action shall not operate to excuse Buyer from performance of any obligation nor
shall such action give rise to any right of Buyer to any refund or retroactive
adjustment of the Contract Price provided in any Transaction. Notwithstanding
the foregoing, if a Party's (the "Regulated Party") activities hereunder become
subject to regulation of any kind whatsoever under any law to a greater or
different extent than that existing on the Effective Date and such regulation
renders this Agreement illegal or unenforceable, or, as to EESI, such regulation
has the effect of limiting the price that EESI can charge for Energy under a
Transaction or otherwise materially adversely affects EESI's ability to receive
the economic benefits of a Transaction, the Regulated Party shall at such time
have the right to declare an Early Termination Date in accordance with the
provisions hereof, provided, notwithstanding the rights of the Parties to
declare an Early Termination Date as above stated, the Regulated Party shall be
liable for payment of the Termination Payment as provided in Section 4.3 as
calculated by the non-Regulated Party.
SECTION 5.
LIMITATIONS; DUTY TO MITIGATE
5.1. LIMITATIONS OF REMEDIES, LIABILITY AND DAMAGES. THE PARTIES CONFIRM THAT
THE EXPRESS REMEDIES AND MEASURES OF DAMAGES PROVIDED IN THIS AGREEMENT SATISFY
THE ESSENTIAL PURPOSES HEREOF. FOR BREACH OF ANY PROVISION FOR WHICH AN EXPRESS
REMEDY OR MEASURE OF DAMAGES IS PROVIDED, SUCH EXPRESS REMEDY OR MEASURE OF
DAMAGES SHALL BE THE SOLE AND EXCLUSIVE REMEDY, THE OBLIGOR'S LIABILITY SHALL BE
LIMITED AS SET FORTH IN SUCH PROVISION AND ALL OTHER REMEDIES OR DAMAGES AT LAW
OR IN EQUITY ARE WAIVED. IF NO REMEDY OR MEASURE OF DAMAGES IS EXPRESSLY HEREIN
PROVIDED, THE OBLIGOR'S LIABILITY SHALL BE LIMITED TO DIRECT ACTUAL DAMAGES
ONLY, SUCH DIRECT ACTUAL DAMAGES SHALL BE THE SOLE AND EXCLUSIVE REMEDY AND ALL
OTHER REMEDIES OR DAMAGES AT LAW OR IN EQUITY ARE WAIVED. UNLESS EXPRESSLY
HEREIN PROVIDED, NEITHER PARTY SHALL BE LIABLE FOR CONSEQUENTIAL, INCIDENTAL,
PUNITIVE, EXEMPLARY OR INDIRECT DAMAGES, LOST PROFITS OR OTHER BUSINESS
INTERRUPTION DAMAGES, BY STATUTE, IN TORT OR CONTRACT, UNDER ANY INDEMNITY
PROVISION OR OTHERWISE. IT IS THE INTENT OF THE PARTIES THAT THE LIMITATIONS
HEREIN IMPOSED ON REMEDIES AND THE MEASURE OF DAMAGES BE WITHOUT REGARD TO THE
CAUSE OR CAUSES RELATED THERETO, INCLUDING THE NEGLIGENCE OF ANY PARTY, WHETHER
SUCH NEGLIGENCE BE SOLE, JOINT OR CONCURRENT, OR ACTIVE OR PASSIVE. TO THE
EXTENT ANY DAMAGES REQUIRED TO BE PAID HEREUNDER ARE LIQUIDATED, THE PARTIES
ACKNOWLEDGE THAT THE DAMAGES ARE DIFFICULT OR IMPOSSIBLE TO DETERMINE, OTHERWISE
OBTAINING AN ADEQUATE REMEDY IS INCONVENIENT AND THE LIQUIDATED DAMAGES
CONSTITUTE A REASONABLE APPROXIMATION OF THE HARM OR LOSS.
5.2 DUTY TO MITIGATE. Each Party agrees that it has a duty to mitigate
damages and covenants that it will use commercially reasonable efforts to
minimize any damages it may incur as a result of the other Party's performance
or non-performance of this Agreement.
5.3 UCC. Except as otherwise provided for herein the provisions of the
Uniform Commercial Code ("UCC") of the state whose laws shall govern this
Agreement shall be deemed to apply to all Transactions and Energy shall be
deemed to be a "good" for purposes of the UCC. EXCEPT AS EXPRESSLY SET FORTH
HEREIN, SELLER EXPRESSLY NEGATES ANY OTHER REPRESENTATION OR WARRANTY, WRITTEN
OR ORAL, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY REPRESENTATION
OR WARRANTY WITH RESPECT TO CONFORMITY TO MODELS OR SAMPLES, MERCHANTABILITY, OR
FITNESS FOR ANY PARTICULAR PURPOSE.
SECTION 6.
BILLING; PAYMENT
6.1. BILLING AND PAYMENT. Seller shall render to Buyer (by regular mail,
facsimile or other acceptable means pursuant to Section 8.3) for each calendar
month during which purchases/sales are made, a statement setting forth the total
quantity of Energy that was Scheduled or that Buyer was obligated to purchase
and any other charges due
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Seller, including payments or credits between the Parties pursuant to Section
3.5 and Section 3.6, under this Agreement during the preceding month and the
amounts due to Seller from Buyer therefor. Billing and Payment will be based on
Scheduled hourly quantities. On or before five (5) days after receipt of
Seller's statement or if such day is not a Business Day, the immediately
following Business Day, Buyer shall render, by wire transfer, the amount set
forth on such statement to the payment address provided in Exhibit "A". Overdue
payments shall accrue interest from, and including, the due date to, but
excluding, the date of payment at the Interest Rate. If Buyer, in good faith,
disputes a statement, Buyer shall provide a written explanation of the basis for
the dispute and pay the portion of such statement conceded to be correct no
later than the due date. If any amount disputed by Buyer is determined to be due
to Seller, it shall be paid within ten (10) days of such determination, along
with interest accrued at the Interest Rate until the date paid.
6.2 NETTING/SETOFF. If Buyer and Seller are each required to pay an amount in
the same month, then such amounts with respect to each Party may be aggregated,
and the Parties may discharge their obligations to pay through netting, in which
case the Party, if any, owing the greater aggregate amount may pay to the other
Party the difference between the amounts owed. Each Party reserves to itself all
rights, setoffs, counterclaims and other remedies and defenses consistent with
Section 5 (to the extent not expressly herein waived or denied) which such Party
has or may be entitled to arising from or out of this Agreement. All outstanding
Transactions and the obligations to make payment in connection therewith or
under this Agreement or any other agreement between the Parties may be offset
against each other, set off or recouped therefrom.
6.3. AUDIT. Each Party (and its representative(s)) has the right, at its sole
expense and during normal working hours, to examine the records of the other
Party to the extent reasonably necessary to verify the accuracy of any
statement, charge or computation made pursuant to this Agreement. If requested,
a Party shall provide to the other Party statements evidencing the quantities of
Energy delivered at the Delivery Point. If any such examination reveals any
inaccuracy in any statement, the necessary adjustments in such statement and the
payments thereof will be promptly made and shall bear interest calculated at the
Interest Rate from the date the overpayment or underpayment was made until paid;
provided, however, that no adjustment for any statement or payment will be made
unless objection to the accuracy thereof was made prior to the lapse of two
years from the rendition thereof; and provided further that this agreement will
survive any termination of the Agreement for a period of two years from the date
of such termination for the purpose of such statement and payment objections. If
any adjustment owed by a Party determined pursuant to this provision is in
excess of $10,000, the audited Party will be responsible for the auditing
Party's expenses, up to a maximum of $5,000. Further, the Parties agree that
each may audit the other a maximum of one time per year during the Master Term,
or any extension thereof.
SECTION 7.
TAXES
7.1 TAXES. The Contract Price shall include full reimbursement for, and Seller
is liable for and shall pay, or cause to be paid, or reimburse Buyer if Buyer
has paid, all Taxes applicable to a Transaction arising prior to the Delivery
Point. If Buyer is required to remit such Tax, the amount shall be deducted from
any sums due to Seller. Seller shall indemnify, defend and hold harmless Buyer
from any Claims for such Taxes. The Contract Price does not include
reimbursement for, and buyer is liable for and shall pay, cause to be paid, or
reimburse Seller if Seller has paid, all Taxes applicable to a Transaction
arising at and from the Delivery Point, including any Taxes imposed or collected
by a taxing authority with jurisdiction over Buyer. Buyer shall indemnify,
defend and hold harmless Seller from any Claims for such Taxes. Either Party,
upon written request of the other, shall provide a certificate of exemption or
other reasonably satisfactory evidence of exemption if either Party is exempt
from taxes, and shall use reasonable efforts to obtain and cooperate with
obtaining any exemption from or reduction of any Tax. Each Party shall use
reasonable efforts to administer this Agreement and implement the provisions in
accordance with the intent to minimize Taxes.
7.2. NEW TAXES. If (i) a New Tax is imposed and (ii) Customer or EESI would be
responsible for paying such New Tax with respect to the Transactions, the Party
responsible for the New Tax ("Affected Party") shall be entitled to declare an
Early Termination Date with respect to those Transactions affected by the New
Tax ("Affected Transactions") in accordance with the provisions of this
Agreement subject to the following conditions:
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(a) the Affected Party must give the other Party ("Non-Affected Party") at least
thirty (30) days prior written notice of its intent to declare an Early
Termination Date (which notice shall also include the additional information
described in the last sentence of this Section 7.2), and prior to the proposed
Early Termination Date, Customer and EESI shall attempt to reach a mutual
agreement as to which Party will pay the New Tax, (b) if a mutual agreement is
not reached within thirty (30) days after the Affected Party provides the notice
provided in subsection (a) above, the Early Termination Date shall take effect
and all Affected Transactions shall be terminated and be subject to the same
Early Termination Date, (c) the Early Termination Date shall be effected as if
an Event of Default had occurred and EESI shall calculate in a commercially
reasonable manner its net Loss (amount of Losses and Costs after netting Gains),
if any, resulting from the termination of all Affected Transactions as if it
were the "Non-Defaulting Party" under Section 4 hereof and provided further that
EESI's Gains and Losses shall be determined without taking into effect the
impact of the New Taxes, and (d) Customer shall pay to EESI the amount of the
net Loss calculated in subsection (c) above in accordance with the provisions of
Section 4.4(a). In the notice described in subsection (a) above the Affected
Party will include a calculation, in reasonable detail, estimating the notional
value of the amount payable under subsection (c) above, the Parties acknowledge
that such calculation shall be merely a good faith estimate of the amount
payable and a final and definitive calculation of the amount due will be made on
or before the Early Termination Date.
SECTION 8.
MISCELLANEOUS
8.1. ASSIGNMENT. Neither Party shall assign this Agreement or its rights
hereunder without the prior written consent of the other Party, which consent
may be withheld in its sole discretion; provided, however, either Party may,
without the consent of (but with notice to) the other Party (and without
relieving itself from liability hereunder), (i) transfer, sell, pledge, encumber
or assign this Agreement or the accounts, revenues or proceeds hereof in
connection with any financing or other financial arrangements, (ii) transfer or
assign this Agreement to an Affiliate of such Party, or (iii) transfer or assign
this Agreement to any person or entity succeeding to all or substantially all of
the assets of such Party; provided, however, that in each such case, any such
assignee shall agree to in writing to be bound by the terms and conditions
hereof.
8.2. FINANCIAL INFORMATION. If requested by Customer, EESI shall deliver (i)
within 120 days following the end of each fiscal year, a copy of the annual
report of Enron Corp. containing audited consolidated financial statements for
such fiscal year certified by independent certified public accountants and (ii)
within 60 days after the end of each of its first three fiscal quarters of each
fiscal year, a copy of the quarterly report of Enron Corp. containing unaudited
consolidated financial statements for such fiscal quarter. If requested by EESI,
Customer shall deliver (i) within 120 days following the end of each fiscal
year, a copy of the annual report of Customer containing audited consolidated
financial statements for such fiscal year certified by independent certified
public accountants and (ii) within 60 days after the end of each of its first
three fiscal quarters of each fiscal year, a copy of the quarterly report of
Customer containing unaudited consolidated financial statements for such fiscal
quarter. In all cases the statements shall be for the most recent accounting
period and prepared in accordance with GAAP or such other principles then in
effect; provided, should any such statements not be available timely due to a
delay in preparation or certification, such delay shall not be considered a
default so long as such Party diligently pursues the preparation, certification
and delivery of the statements.
8.3 NOTICES. All notices, requests, statements or payments shall be made as
specified in Exhibit "A". Notices required to be in writing shall be delivered
by letter, facsimile or other documentary form. Notice by facsimile or hand
delivery shall be deemed to have been received by the close of the Business Day
on which it was transmitted or hand delivered (unless transmitted or hand
delivered after close in which case it shall be deemed received at the close of
the next Business Day). Notice by overnight mail or courier shall be deemed to
have been received two Business Days after it was sent. A Party may change its
addresses by providing notice of same in accordance herewith.
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8.4. CONFIDENTIALITY. Neither Party shall disclose the terms or conditions of
this Agreement to a third party (other than the Party's and its Affiliates'
employees, lenders, counsel, accountants or advisors who have a need to know
such information and have agreed to keep such terms confidential) except in
order to comply with any applicable Law or exchange rule; provided, each Party
shall notify the other Party of any proceeding of which it is aware which may
result in disclosure and use reasonable efforts to prevent or limit the
disclosure. The Parties shall be entitled to all remedies available at law or
in equity to enforce, or seek relief in connection with, this confidentiality
obligation. Notwithstanding the foregoing, Customer agrees that EESI or its
affiliates may use Customer's name and a general description of the services
provided by EESI to Customer hereunder in customer lists and other promotional
or advertising materials that EESI may develop from time to time. Any press
release regarding this Agreement will be on the Parties' mutual consent and
will be developed jointly by the Parties.
8.5. GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND DUTIES OF THE PARTIES
HEREUNDER SHALL BE GOVERNED BY AND CONSTRUED, ENFORCED AND PERFORMED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF CALIFORNIA, WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAW.
8.6. WINDING UP ARRANGEMENTS. All indemnity and audit rights shall survive the
termination of this Agreement. All obligations provided in this Agreement shall
remain in effect for the purpose of complying herewith.
8.7. GENERAL. This Master Agreement, the Exhibits and Appendices hereto, if any,
and each Transaction, constitute the entire agreement between the Parties
relating to the subject matter contemplated by this Agreement. No amendment or
modification to this Master Agreement shall be enforceable unless reduced to
writing and executed by both Parties. Any Party in default under this Agreement
shall reimburse the other Party, on demand, for actual, reasonable out-of-pocket
expenses (and any interest thereon at the Interest Rate), including, without
limitation, reasonable legal fees and expenses incurred by the other Party
during the occurrence and continuation of such default in connection with the
enforcement of, or the preservation of its rights in respect of this Agreement.
This Master Agreement shall not impart any rights enforceable by any third-party
other than a permitted successor or assignee bound to this Agreement. No waiver
by a Party of any default by the other Party shall be construed as a waiver of
any other default. Nothing in this Master Agreement shall be construed to create
a partnership or joint venture between the Parties. Any provision of this
Agreement that is not essential to the purpose of this Agreement that is
declared or rendered unlawful by any applicable court of law or regulatory
agency or deemed unlawful because of a statutory or regulatory change
(individually or collectively, such events referred to as a "Regulatory Event")
will not otherwise affect the remaining lawful obligations that arise under this
Agreement; further, if a Regulatory Event occurs, the Parties shall use their
best efforts to reform the Agreement in order to give effect to the original
intention of the Parties. Notwithstanding the foregoing, or anything else in the
Agreement to the contrary, in the event that, as a result of a Regulatory Event,
a Party (the "Excused Party") is excused from any payment or performance
obligation, the other Party shall be correspondingly excused from any payment or
performance obligation that would have arisen but for the failure or inability
of the Excused Party to perform. The term "including" when used in this
Agreement shall be by way of example only and shall not be considered in any way
to be in limitation. The headings used herein are for convenience and reference
purposes only.
8.8. ARBITRATION. Any claim, counterclaim, demand, cause of action, dispute, and
controversy arising out of or relating to this Agreement or the relationship
established by this Agreement, any provision hereof, the alleged breach thereof,
or in any way relating to the subject matter of this Agreement, involving the
Parties and/or their respective representatives (collectively the "Claims"),
even though some or all of such Claims allegedly are extra-contractual in
nature, whether such Claims sound in contract, tort, or otherwise, at law or
in equity, under state or federal law, whether provided by statute or the common
law, for damages or any other relief, shall be resolved by binding arbitration.
Arbitration shall be conducted in accordance with the rules of arbitration of
the Federal Arbitration Act and, to the extent an issue is not addressed by the
federal law on arbitration, by the Commercial Arbitration Rules of the American
Arbitration Association. The validity, construction, and interpretation of this
agreement to arbitrate, and all procedural aspects of the arbitration conducted
pursuant hereto shall be decided by the arbitrators. In deciding the substance
of the Parties' Claims, the arbitrators shall refer to the governing law. It
8.
9
is agreed that the arbitrators shall have no authority to award treble,
exemplary or punitive damages of any type under any circumstances whether or not
such damages may be available under state or federal law, or under the Federal
Arbitration Act, or under the Commercial Arbitration Rules of the American
Arbitration Association, the Parties hereby waiving their right, if any, to
recover any such damages. The arbitration proceeding shall be conducted in
Phoenix, AZ. Within thirty days of the notice of initiation of the arbitration
procedure, each party shall select one arbitrator. The two arbitrators shall
select a third arbitrator. The third arbitrator shall be a person who has over
eight years professional experience in electrical energy-related transactions
and who has not previously been employed by either Party and does not have a
direct or indirect interest in either Party or the subject matter of the
arbitration. While the third arbitrator shall be neutral, the two
party-appointed arbitrators are not required to be neutral, and it shall not be
grounds for removal of either of the two party-appointed arbitrators or for
vacating the arbitrators' award that either of such arbitrators has past or
present relationships with the Party that appointed such arbitrator. To the
fullest extent permitted by law, any arbitration proceeding and the arbitrators
award shall be maintained in confidence by the Parties.
The Parties have executed this Master Agreement in multiple counterparts to
be construed as one effective as of the Effective Date.
ENRON ENERGY SERVICES, INC.
By:
----------------------------------------------------
Name:
--------------------------------------------------
Title:
-------------------------------------------------
CALLAWAY GOLF COMPANY
By: /s/ Xxxxxx X. Xxxxxxx
-------------------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Senior Executive Vice President of Manufacturing
9.
10
APPENDIX "1" -- DEFINITIONS
TO THE
MASTER ENERGY PURCHASE AND SALE AGREEMENT
All references to Articles and Sections are to those set forth in this
Agreement. Reference to any document means such document as amended from time to
time and reference to any Party includes any permitted successor or assignee
thereof. The following definitions and any terms defined internally in this
Agreement shall apply to this Agreement and all notices and communications made
pursuant to this Agreement.
"AAA" shall have the meaning defined in Section 8.8.
"AFFECTED PARTY" shall have the meaning defined in Section 7.2.
"AFFECTED TRANSACTIONS" shall have the meaning defined in Section 7.2.
"AFFILIATE" means, with respect to any person, any other person (other than an
individual) that, directly or indirectly, through one or more intermediaries,
controls, or is controlled by, or is under common control with, such person. For
this purpose, "control" means the direct or indirect ownership of fifty percent
(50%) or more of the outstanding capital stock or other equity interests having
ordinary voting power.
"AGREEMENT PERIOD" shall have the meaning defined in Section 7.2.
"BANKRUPTCY PROCEEDING" means with respect to a Party or entity, such Party or
entity (i) makes an assignment or any general arrangement for the benefit of
creditors, (ii) files a petition or otherwise commences, authorizes or
acquiesces in the commencement of a proceeding or cause of action under any
bankruptcy or similar law for the protection of creditors, or has such petition
filed against it and such petition is not withdrawn or dismissed for thirty (30)
days after such filing, (iii) otherwise becomes bankrupt or insolvent (however
evidenced) or (iv) is unable to pay its debts as they fall due.
"BUSINESS DAY" means a day on which Federal Reserve member banks in New York
City are open for business; and a Business Day shall open at 8:00 a.m. and close
at 5:00 p.m. local time for each Party's principal place of business.
"BUYER" means the Party to a Transaction who is obligated to purchase and
receive, or cause to be received, Energy during a Delivery Term.
"CLAIMS" means all claims or actions, threatened or filed and whether
groundless, false or fraudulent, that directly or indirectly relate to the
subject matter of an indemnity, and the resulting losses, damages, expenses,
attorneys' fees and court costs, whether incurred by settlement or otherwise,
and whether such claims or actions are threatened or filed prior to or after the
termination of this Agreement.
"CONFIRMATION LETTER" means a written notice confirming the specific terms of a
Transaction which shall be in the form attached hereto as "Exhibit B".
"CONTRACT PRICE" means the price in $U.S. (unless otherwise provided for) to be
paid by Buyer to Seller for the purchase of Energy pursuant to a Transaction.
"CONTRACT QUANTITY" means that quantity of Energy that Seller agrees to sell and
deliver, or cause to be delivered, to Buyer, and that Buyer agrees to purchase
and receive, or cause to be received, from Seller, pursuant to the terms of a
Transaction.
"COSTS" shall have the meaning defined in Section 4.3(a)(iii).
"DEFAULTING PARTY" shall have the meaning defined in Section 4.1.
"DELIVERY POINT" means the agreed point of delivery and receipt of Energy
pursuant to a Transaction.
"DELIVERY TERM" means the period of time from the date physical delivery of the
Energy is to commence to the date physical delivery is to terminate under a
Transaction.
11
"EARLY TERMINATION DATE" shall have the meaning defined in Section 4.2(a).
"ENERGY" means Merchandisable Energy expressed in megawatt hours (MWh) or to the
extent specifically agreed to by the Parties, capacity or other related products
and services and specifically includes the Commodity.
"EQUITABLE DEFENSES" means any bankruptcy, insolvency, reorganization and other
laws affecting creditor's rights generally, and with regard to equitable
remedies, the discretion of the court before which proceedings to obtain same
may be pending.
"EVENT OF DEFAULT" shall have the meaning defined in Section 4.1.
"EXCUSED PARTY" shall have the meaning defined in Section 8.7.
"FIRM" means, with respect to a Transaction, that the only excuse for the
failure to deliver Energy by Seller or the failure to receive Energy by the
Buyer pursuant to a Transaction is Force Majeure or the other Party's
non-performance.
"FORCE MAJEURE" means (with respect to Firm Transactions) an event not
anticipated as of the Effective Date, which is not within the reasonable control
of the Party (or in the case of third party obligations or facilities, the third
party) claiming suspension (the "Claiming Party"), and which by the exercise of
due diligence the Claiming Party, or third party, is unable to overcome or
obtain or cause to be obtained a commercially reasonable substitute therefor.
Force Majeure may include, but is not restricted to, acts of God; fire; civil
disturbance; labor dispute; labor or material shortage; sabotage; action or
restraint by court order or public or governmental authority that renders this
Agreement illegal or unenforceable (so long as the Claiming Party has not
applied for or assisted in the application for, and has opposed where and to the
extent reasonable, such government action); provided, that neither (i) the loss
of Buyer's markets nor Buyer's inability economically to use or resell Energy
purchased hereunder nor (ii) Seller's ability to sell Energy to a market at a
more advantageous price, shall constitute an event of Force Majeure.
"GAAP" means generally accepted accounting principles, consistently applied.
"GAINS" shall have the meaning defined in Section 4.3(a)(i).
"INTEREST RATE" means, for any date, two percent over the per annum rate of
interest equal to the prime lending rate as may from time to time be published
in The Wall Street Journal under "Money Rates"; provided, the Interest Rate
shall never exceed the maximum lawful rate permitted by applicable law.
"LAW" means any law, rule, statute, regulation, order, writ, judgment, decree or
other legal or regulatory determination by a court, regulatory agency or
governmental authority of competent jurisdiction.
"LEGAL PROCEEDINGS" means any suits, proceedings, judgments, rulings or orders
by or before any court or any governmental authority.
"LOSSES" shall have the meaning defined in Section 4.3(a)(ii).
"MERCHANDISABLE ENERGY" means electric energy of the character commonly known as
three-phase, sixty-hertz electric energy that is delivered at the nominal
voltage of the Delivery Point.
"NYMEX" means the New York Mercantile Exchange.
"NEW TAXES" means (i) any Taxes enacted and effective after the Effective Date
and a material increase in the rate of any Taxes or New Taxes, or (ii) any law,
order, rule or regulation, or interpretation thereof, enacted and effective
after the Effective Date resulting in the application of any Taxes to a new or
different class of persons.
"NON-AFFECTED PARTY" shall have the meaning defined in Section 7.2.
"NON-DEFAULTING PARTY" shall have the meaning defined in Section 4.1(a).
"NON-FIRM" means, with respect to a Transaction, that delivery or receipt of
Energy may be interrupted for any reason, without liability by either Party,
including, without limitation, price fluctuations.
12
"PENALTIES" shall mean any costs, charges and/or penalties that are imposed by a
Utility, Transmission Provider, and/or other persons in the event Seller fails
to schedule or Buyer fails to receive amounts of Energy that the Parties agreed
to schedule and receive under a Firm Transaction, expressly including any actual
excess costs of Energy incurred by Buyer or Seller as a result thereof, whether
such costs are incurred from the applicable Utility, Transmission Provider or
another Energy provider, including losses due to Utility or Transmission
Provider cash outs or excess Energy purchases.
"REGULATED PARTY" shall have the meaning defined in Section 4.5.
"REGULATORY APPROVALS" means all permissions required under current and future
valid and applicable Laws.
"REGULATORY EVENT" shall have the meaning defined in Section 8.7.
"REPLACEMENT PRICE" shall have the meaning defined in Section 3.5.
"SALES PRICE" shall have the meaning defined in Section 3.6.
"SCHEDULING" or "SCHEDULE" means the acts of Seller, Buyer and/or their
designated representatives, including each Party's Transmission Providers, if
applicable, of notifying, requesting and confirming to each other the quantity
and type of Energy to be delivered hourly on any given day or days during the
Delivery Term at a specified Delivery Point.
"SELLER" means the Party to a Transaction who is obligated to sell and deliver
or cause to be delivered Energy during a Delivery Term.
"TAXES" means any or all ad valorem, property, occupation, severance,
generation, first use, conservation, Btu or energy, transmission, utility, gross
receipts, privilege, sales, use, consumption, excise, lease, transaction, and
other taxes or New Taxes, governmental charges, licenses, fees, permits and
assessments, or increases therein, other than taxes based on net income or net
worth.
"TERMINATED TRANSACTION" shall have the meaning defined in Section 5.3.
"TERMINATED PAYMENT" shall have the meaning defined in Section 4.3(e).
"TRANSACTION" means a particular transaction agreed to by the Parties relating
to the purchase and sale of Energy pursuant to this Master Agreement.
"TRANSMISSION CHARGES" means the amount, if any, to be paid by a Party to a
Transmission Provider or Utility for transmission and distribution of Energy and
related services as agreed to by the Parties in a Transaction.
"TRANSMISSION PROVIDERS" means the entity or entities transmitting Energy on
behalf of Seller or Customer to or from the Delivery Point in a particular
Transaction, including, without limitation, any applicable Independent System
Operator or Regional Transmission Operator.
"UCC" shall have the meaning defined in Section 5.3.
"UTILITY" means the electric utility distribution company or Transmission
Provider providing tariffed services to each of the Facilities as of the
Effective Date, and any successor thereto providing similar services.
13
EXHIBIT "A"
TO THE
MASTER ENERGY PURCHASE AND SALE AGREEMENT
NOTICES AND PAYMENT
EESI:
NOTICES & CORRESPONDENCE PAYMENTS:
Enron Energy Services, Inc. Bank of America
P.O. Box 1188 for: Enron Energy Services, Inc.
Xxxxxxx, Xxxxx 00000-0000 ABA No.: 000000000
Attn.: Contract Administration Account No.: 3751257727
Facsimile No.: (000) 000-0000
INVOICES:
Enron Energy Services, Inc.
X.X. Xxx 0000
Xxxxxxx, Xxxxx 00000-0000
Attn.: Xx. Xxxxxxx Xxxxxxxx
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
CUSTOMER:
NOTICES & CORRESPONDENCE:
Callaway Golf Company
0000 Xxxxxxxxxx Xxxx
Xxxxxxxx, XX
Attn.: Xxxxxx X. Xxxxxx
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
INVOICES:
Callaway Golf Company
0000 Xxxxxxxxxx Xxxx
Xxxxxxxx, XX
Attn.: Accounts Payable
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
or to such other address as Customer or EESI shall from time to time designate
by letter properly addressed.
14
EXHIBIT "B" TO THE
MASTER ENERGY PURCHASE AND SALE AGREEMENT
FORM OF CONFIRMATION LETTER
FOR TRANSACTIONS FORMED UNDER SECTION 1.2
[Date]
[Customer]
Address]
CONFIRMATION LETTER
This Confirmation Letter shall confirm the agreement reached on _________,
2001 between _______________ ("Customer") and Enron Energy Services, Inc.
("EESI") regarding the sale/purchase of Energy under the terms and conditions as
follows:
SELLER:
--------------------------
CUSTOMER:
--------------------------
COMMODITY: CAISO Energy
--------------------------
DELIVERY TERM:
--------------------------
CONTRACT PRICE:
--------------------------
CONTRACT QUANTITY:
--------------------------
DELIVERY POINT:
--------------------------
SCHEDULING:
--------------------------
SPECIAL CONDITION(S):
--------------------------
OTHER:
--------------------------
This Confirmation Letter is being provided pursuant to and in accordance
with the Master Energy Purchase and Sale Agreement dated ________, 2001 (the
"Master Agreement") between Customer and EESI, and constitutes part of and is
subject to all of the terms and provisions of such Master Agreement. Terms used
but not defined herein shall have the meanings ascribed to them in this Master
Agreement.
"CAISO Energy" means, with respect to a Transaction, a quantity of energy
equal to the hourly quantity without Ancillary Services (as defined in the
Tariff, as defined below) that is or will be scheduled as a schedule coordinator
to schedule coordinator transaction pursuant to the applicable tariff and
protocol provisions set forth in the California Independent System Operator
("CAISO") (as may be amended from time to time, the "Tariff") for which the only
excuse for failure to deliver or receive is an "Uncontrollable Force," as such
term is defined in the Tariff.
15
Please confirm that the terms stated herein accurately reflect the
agreement between you and EESI by returning an executed copy of this letter by
facsimile to EESI. If you do not return this Confirmation or object to this
Confirmation within two (2) Business Days of your receipt of it, you will have
accepted and agreed to all of the terms included herein, including the terms and
provisions of the Agreement.
XXXXXXXX GOLF COMPANY ENRON ENERGY SERVICES, INC.
By: By:
------------------------ ------------------------
Title: Title:
------------------------ ------------------------
Date: Date:
------------------------ ------------------------
16
April 12, 2001
CONFIRMATION LETTER
This Confirmation Letter shall confirm the agreement reached on April 12,
2001 between Callaway Golf Company ("Customer") and Enron Energy Services, Inc.
("EESI") regarding the sale/purchase of Energy under the terms and conditions
as follows:
Parties: EESI is the "Seller" and Customer is the "Buyer"
Delivery Term: June 1, 2001 through May 31, 2006
Contract Price: $110.25 per MWh at the Delivery Point. Customer
shall be solely responsible for all charges
incurred with respect to the transmission and
delivery at and from the Delivery Point,
including, without limitation, Utility charges,
competitive transition charges, Utility
surcharges, direct access charges, and load
shaping, balancing and scheduling charges.
Contract Quantity: 9MW of CAISO Energy (defined below) per hour or
394,416 MWh for the Delivery Term.
Delivery Point: SP 15
Special Conditions: The Parties recognize that under this Transaction
EESI is delivering to Customer the Contract
Quantity at the Delivery Point and is not
providing Customer with any Energy load shaping,
balancing or scheduling services, which Customer
shall procure for its own account at its sole
expense. Customer shall be solely responsible for
arranging for the receipt of the Contract Quantity
at the Delivery Point and for the subsequent
transmission and delivery of the Contract Quantity
from the Delivery Point to Customer's meter(s) and
for any and all cost incurred with respect
thereto. If necessary, Customer shall be solely
responsible for obtaining status with the
respective Utility as a "direct access" customer,
obtaining and designating a direct access service
provider, and paying any and all costs incurred
with respect thereto. EESI shall not be customer's
direct access provider, and Customer shall not be
a direct access customer of EESI, under this
Transaction. Failure of Customer to obtain direct
access status; to arrange for receipt of the
Contract Quantity at the Delivery Point; or to
arrange for the subsequent transmission and
delivery of the Contract Quantity shall not excuse
Customer's performance under this Transaction or
the Master Agreement.
17
OTHER: "CAISO Energy" means, with respect to the
Transaction, the quantity of energy equal to the
hourly quantity without Ancillary Services (as
defined in the Tariff, as defined below) that is
or will be scheduled as a schedule coordinator-to-
schedule coordinator transaction pursuant to the
applicable tariff and protocol provisions set
forth in the California Independent System
Operator ("CAISO") (as may be amended from time to
time, the "Tariff") for which the only excuse for
failure to deliver or receive is an
"Uncontrollable Force," as such term is defined in
the Tariff.
This Confirmation Letter is being provided pursuant to and in accordance
with the Master Energy Purchase and Sale Agreement dated April 12, 2001 (the
"Master Agreement") between Customer and EESI, and constitutes part of and is
subject to all of the terms and provisions of such Master Agreement. Terms used
but not defined herein shall have the meanings ascribed to them in this Master
Agreement.
Please confirm that the terms stated herein accurately reflect the
agreement between you and EESI by returning an executed copy of this letter by
facsimile to EESI. If you do not return this Confirmation or object to this
Confirmation within two (2) Business Days of your receipt of it, you will have
accepted it and agreed to all of the terms included herein, including the terms
and provisions of the Agreement.
CALLAWAY GOLF COMPANY ENRON ENERGY SERVICES, INC.
By: /s/ XXXXXX X. XXXXXXX By:
------------------------- -------------------------------
Title: Senior Executive Vice President, Title:
Manufacturing ----------------------------
Date: April 13, 2001 Date: April 13, 2001
