INVENTORY MANAGEMENT AGREEMENT
PHASE II
This Inventory Management Agreement-Phase II (as amended from
time to time this "Agreement"), is made and entered into April 6, 2001,
by and between Enron North America Corp., a Delaware corporation
("Enron"), and Huntco Steel, Inc., a Delaware corporation ("HSI"). This
Agreement is effective upon execution but the rights and obligations
provided for hereunder shall not commence ("Commencement Date") until
after the satisfaction of the Post Closing Items (as hereinafter
defined) or on such earlier date as the parties hereto ("Parties," each
a "Party") agree.
RECITALS:
A. The Parties executed a Master Steel Purchase and Sale
Agreement of even date herewith (as amended from time to time, the
"Master Agreement") regarding the purchase and sale of the specified
Commodity thereunder. Any capitalized terms used but not defined herein
shall have the meaning set forth in the Master Agreement.
B. The Parties executed a Warehouse Agreement of even date
herewith (as amended from time to time, the "Warehouse Agreement")
regarding HSI's provision of storage and warehouse services with
respect to the Commodity purchased by Enron under the Master Agreement.
C. The Parties executed an Inventory Management Agreement (Phase
I) of even date herewith (as amended from time to time, the "Inventory
Management Agreement for Phase I") regarding purchase and sale
obligations during the term thereof ("Phase I").
D. The Parties desire to set forth certain agreements with
respect to the purchase and sale of Commodity during the term of this
Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and
premises herein contained and intending to be legally bound hereby, the
Parties agree as follows:
1. Transactions.
1.1 Ordering Procedure. To purchase Commodity during Phase II,
HSI shall provide Enron with an offer to purchase which shall include
volumes, specifications, delivery point, the period during which HSI
desires that the Commodity be delivered to the delivery point (the
"Delivery Period"), and all other information requested by Enron in
connection with such offer. HSI may place orders under this Section
1.1 if such orders are placed no later than the "Normal Lead Time",
before the first day of the Delivery Period specified in such order.
The "Normal Lead Time" shall mean the lead time applicable to the
Commodity and Delivery Point as set forth in Schedule III attached
hereto and updated periodically as described in Schedule III.
1.2 Acceptance and Confirmation. Subject to the other terms
hereof, Enron shall accept offers made pursuant to Section 1.1 and such
offer and acceptance shall constitute a Transaction under the Master
Agreement. Thereafter, Enron shall provide HSI a Confirmation of such
Transaction which shall have the following terms:
1.2.1 Seller: Enron.
1.2.2 Buyer: HSI.
1.2.3 Commodity: The Commodity purchased under the
Transaction.
1.2.4 Delivery Point: A specified HSI Facility.
1.2.5 Contract Quantity: Specified volumes.
1.2.6 Delivery Period: Enron shall deliver the Commodity to
the Delivery Point not later than the last day of the Delivery Period,
provided that Enron shall have no liability to HSI for failure to
deliver Commodity by such date if such failure is caused by a third
party supplier or transporter's delay in delivering the Commodity. If
Enron believes the Commodity will not be delivered by the last day of
the Delivery Period, Enron shall have the right to verbally notify HSI
and specify the new Delivery Period which shall replace the current
Delivery Period with the remainder of the terms of such Transaction
remaining unchanged, provided HSI does not terminate the Transaction by
giving written notice to Enron within three (3) Business Days of HSI
receiving verbal notice of the new Delivery Period. If Commodity is
not delivered by the last day of the then current Delivery Period, HSI
shall have the option to terminate the Transaction by giving written
notice to Enron within three (3) Business Days of the last day of such
Delivery Period, provided, that if HSI fails to exercise such option to
terminate the Transaction then the Delivery Period shall be extended
until the date such Commodity is delivered. If a Transaction is
terminated by HSI pursuant to the terms of this Section 1.2.6 such
Transaction shall be treated as though it was never entered into and
each party shall be released from all of its obligations with respect
to thereto.
If on three (3) occasions during any three month period a
specific third party supplier or transporter fails to deliver 100 Tons
or more of Commodity on time, then HSI may send a written instruction
to Enron that such supplier or transporter shall not be used for any
Transaction entered into within the next six (6) months and Enron shall
comply with such instruction. If Commodity is not delivered on time to
HSI and Enron receives compensation from the supplier or transporter
with respect to such late delivery then Enron shall give such
compensation to HSI.
1.2.7 Purchase Period: HSI shall complete the purchase of
the Commodity on the day of its choosing during the 120 day period
which commences on the day the Commodity is received at the Delivery
Point (the "First Availability Date").
1.2.8 Purchase Price. Determined in accordance with
Section 1.3.
1.3 Purchase Price. The Purchase Price under each Transaction
entered into pursuant to Section 1.2 shall be equal to the product of
(i) the Adjusted Index Price plus the Cost of Carry, and (ii) the
Contract Quantity.
1.3.1 The "Adjusted Index Price" means (a) PMAG next
published after the completion of such Transaction, plus (b) the
applicable Extras Adjustment for such Commodity determined in
accordance with the Extras Adjustment Schedule attached as Schedule I,
plus (c) the Location Adjustment for such Product determined in
accordance with the Location Adjustment Schedule attached as Schedule
I.
1.3.2 The "Cost of Carry" means the product of (i) the
Adjusted Index Price and (ii) the product of (A) the number of days
from the date that is the "Average Payment Delay" (as defined on
Schedule II) after the First Availability Date, to the date the
purchase is completed (including both the day that is the Average
Payment Delay after the First Availability Date and the day the
purchase is completed) and (B) the Daily Cost of Carry.
1.3.3 The "Daily Cost of Carry" means a per annum rate of
interest equal to (LIBOR plus 2.25%) divided by 360. LIBOR shall mean
the LIBOR in effect as of the First Availability Date as the term LIBOR
is defined on Schedule II hereto.
1.4 Completion of Purchases by HSI. Following receipt of a
notice from Enron that the Commodity is available for purchase by HSI,
HSI shall complete a purchase of such Commodity by performing the
following actions:
1.4.1 On or before 10:00 a.m. (Houston time) of each
Business Day HSI will give Enron written notice of its intent to
complete a Transaction ("Notice of Purchase Date") under which it
desires to receive Commodity on or before the following Business Day.
Each Notice of Purchase Date shall be irrevocable. Enron will inform
HSI of the Estimated Purchase Price by the close of business on the
Notice of Purchase Date. HSI shall pay the Estimated Purchase Price to
Enron prior to taking delivery of such Commodity and not later than the
close of business on the day after the Notice of Purchase Date. The
"Estimated Purchase Price" shall be calculated by Enron based on the
Adjusted Index Price for such Transaction using the most recently
published PMAG as of the Notice of Purchase Date.
1.4.2 Upon Enron's notification to HSI of its receipt of
the required payment, HSI may take delivery and receive title to the
Commodity it has purchased.
1.4.3 So long as no Event of Default has occurred and is
continuing, HSI shall have the right on any Business Day to purchase
Commodity under Transactions and take immediate delivery and title to
such Commodity; provided, the aggregate amount of such purchases on any
day shall not exceed $100,000. In connection with purchases completed
under this Section 1.4.3, HSI shall make payment in full to Enron of
the Estimated Purchase Price (as described in Section 1.4.1) by not
later than 10:00 a.m. of the Business Day after the day HSI makes such
purchase.
1.4.4 Promptly after each publication of PMAG, Enron shall
calculate the actual amount that was due in connection with the
completed Transactions and Enron will thereafter either invoice HSI for
any underpayment, which invoice will be due within ten days, or pay to
HSI the amount of any overpayment.
1.4.5 Failure to complete any purchase by the end of the
Purchase Period shall cause HSI to be liable to Enron for the damages
set forth in the Master Agreement applicable to a buyer's failure to
perform under a Transaction, with such damages being calculated as
though the last day of the Purchase Period was the required purchase
date, provided that in no event shall the damages for failure to
purchase Commodity include costs of carry for a period of time that is
greater than 2 months.
1.4.6 It is contemplated hereunder that Enron may sell to
third parties Commodity that is subject to a Transaction. With respect
to any such sales, Enron shall pay to HSI a per Ton payment equal to
the Cost of Carry Rebate on the date HSI either completes such
Transaction or pays Enron the damages applicable to its failure to
complete such Transaction. The "Cost of Carry Rebate" shall be a per
Ton payment equal to the product of (i) the Daily Cost of Carry (as
defined in Section 1.3.2) multiplied by the Adjusted Index Price and
(ii) the number of days between the date Enron sold such Commodity to a
third party and the date Enron acquired replacement Commodity.
1.5 Minimum Annual Purchase Quantity.
1.5.1 HSI shall purchase under Call Options (as defined in
Inventory Management Agreement for Phase I) and Transactions an
aggregate amount of at least 200,000 Tons of Commodity (the "Minimum
Annual Quantity") during the one year period that commences on the
Commencement Date and during each one year period that commences on any
anniversary of the Commencement Date (each, a "CD Year"). In
connection with the first 200,000 Tons purchased from Enron during each
CD Year HSI shall pay Enron a "Base Purchasing Fee" of $10 per Ton.
Additionally, in connection with each Ton by which the aggregate Tons
that HSI purchases during a CD Year exceed 1,000,000 Tons, HSI shall
pay Enron an "Additional Purchasing Fee" of one percent (1%) of the
Adjusted Index Price of each excess Ton. To the extent HSI fails to
purchase at least the Minimum Annual Quantity in any CD Year, HSI shall
pay Enron a "Purchasing Shortfall Fee" of $10 per Ton for each Ton that
HSI's actual purchases in any CD Year are less than the Minimum Annual
Quantity. Payment of the Purchasing Shortfall Fee shall be the only
remedy available to Enron for HSI's failure to purchase the Minimum
Annual Quantity. All the fees described in this Section 1.5.1 are
collectively referred to herein as the ("Purchasing Fees").
1.5.2 HSI shall pay to Enron a monthly payment equal to
$166,666.67 (the "Monthly Payment"), which shall be paid the month
following the month in which Phase II commences and each month
thereafter up to and including the last month of the Term. Payment of
the Monthly Payment shall be made on the last Business Day of each
month and shall be credited against the Purchasing Fees.
1.5.3 At the end of each CD Year and at the end of the
Term, Enron will provide an invoice to HSI containing the calculation
of the amount of the Base Purchasing Fee, the Additional Purchasing Fee
and the Purchasing Shortfall Fee for the applicable CD Year. All
amounts owed by HSI pursuant to this Section 1.5.3 shall be paid by HSI
by wire transfer within two (2) Business Days after receipt of such
invoice from Enron. Upon the commencement of Phase II, the terms of
this Section 1.5 shall supercede the provisions of Section 1.5 of the
Inventory Management Agreement for Phase I. For the last CD Year of
this Agreement both the 1,000,000 Ton amount and the Minimum Annual
Quantity amount that are used in the calculations in this Section 1.5
shall be prorated downward based on the number of days in such CD Year
that this Agreement is in effect.
1.6 Limitations.
1.6.1 Notwithstanding the foregoing, Enron shall not be
obligated to enter into any Transaction or perform under any
Transaction if (a) an Event of Default has occurred and is continuing
under the Transaction Documents, (b) the consummation thereof would
otherwise cause HSI to exceed the Inventory Cap (as defined below), or
(c) the Commodity purchased by Enron to satisfy its supply obligations
under Section 2.1, 2.3, 2.5 or 2.7 Transactions are not delivered to
the appropriate HSI Facility or otherwise fails to comply with the
ordered specifications. The "Inventory Cap" as used herein shall be
deemed to be exceeded if (after taking into account the Commodity to be
purchased under the proposed Transaction) either the Inventory Volume
Cap or the Inventory Credit Cap is exceeded. The "Inventory Volume Cap"
shall be exceeded if the number of Tons subject to all open
Transactions (the "Outstanding Tons") including all Call Option and Put
Options under the Inventory Management Agreement for Phase I and all
open Transactions under this Agreement exceeds the greater of (i)
400,000 Tons or (ii) the total Tons purchased under all Transactions
for the preceding 12 month period divided by three (3). The "Inventory
Credit Cap" shall be exceeded if the sum of (A) the Outstanding Tons
(excluding the number of Tons subject to unexercised Put Options as
described in the Inventory Management Agreement for Phase I) multiplied
by the most recently published PMAG plus (B) any other amounts owed
under the Transaction Documents to Enron other than principal and
interest due under the Credit Agreement, exceeds $55,000,000.
1.6.2 If as a result of the terms of Section 1.6.1, Enron
fails to accept an offer to purchase from HSI, then HSI may purchase
such Commodity from a third party seller so long as no Event of Default
has occurred and is continuing.
2. Non-Standard Purchases by HSI.
2.1 Special Orders. If HSI needs Commodity delivered prior to
the Normal Lead Time, HSI shall immediately contact Enron with a
description of the desired purchase Transaction including the
specifications, volumes, delivery date, delivery location, maximum
price and all other information requested by Enron in connection
therewith. Provided Enron is able to find a supplier to fill such
order upon reasonable business terms, Enron shall enter into a
Transaction under the Master Agreement to supply such Commodity to HSI
which shall be completed pursuant to the provisions of Section 1.4 and
shall contain the following terms:
2.1.1 Trade Date: The date the Parties enter into a
Transaction to fill a request for Commodity made by HSI under Section
2.1.
2.1.2 Seller: Enron.
2.1.3 Buyer: HSI.
2.1.4 Commodity: The Commodity purchased under the
Transaction.
2.1.5 Delivery Point: A specified HSI Facility.
2.1.6 Contract Quantity: Specified volumes.
2.1.7 Delivery Period: The Delivery Period agreed to by
the third party supplier, provided that Enron shall have no liability
for any failure of such third party supplier to deliver the product
pursuant to the terms negotiated with such third party supplier.
2.1.8 Purchase Period: HSI shall complete the purchase of
the Commodity on the day of its choosing during the 30 day period which
begins on the First Availability Date.
2.1.9 Purchase Price. Determined in accordance with
Section 2.2.
2.2 Purchase Price on Special Orders. The Purchase Price on
each Special Order shall be equal to the product of (i) the Adjusted
Index Price plus the Cost of Carry and the Price Differential and (ii)
the Contract Quantity.
2.2.1 The "Adjusted Index Price" and "Cost of Carry" shall
have the meanings set forth in Section 1.3.
2.2.2 The "Price Differential" means the amount (if any) by
which the price per Ton that Enron is required to pay the third party
supplier for such Commodity is greater than the Trade Date Adjusted
Index Price. The "Trade Date Adjusted Index Price" is (a) PMAG next
published after the Trade Date, plus (b) the applicable Extras
Adjustment for such Commodity determined in accordance with the Extras
Adjustment Schedule attached as Schedule I, plus (c) the Location
Adjustment for such Product determined in accordance with the Location
Adjustment Schedule attached as Schedule I.
2.3 Mill Specific Purchases. Subject to the Combined Purchase
Limit (as described in Section 2.9) and the other terms of this
Agreement, If HSI desires to purchase from Enron Commodity fabricated
by a specific steel mill (a "Mill Specific Purchase") HSI shall
immediately contact Enron with a description of the desired purchase
Transaction including the supplier, specifications, volumes, delivery
date, delivery location and all other information requested by Enron in
connection therewith. Provided the designated mill agrees to fill such
order upon reasonable business terms, Enron shall purchase such
Commodity from the designated mill and Enron shall enter into a
Transaction under the Master Agreement to supply such Commodity to HSI
which shall be completed pursuant to the provisions of Section 1.4 and
shall contain the following terms:
2.3.1 Trade Date: The date the Parties enter into a
Transaction to fill a request for Commodity made by HSI under this
Section 2.3.
2.3.2 Seller: Enron.
2.3.3 Buyer: HSI.
2.3.4 Commodity: The Commodity purchased under the
Transaction.
2.3.5 Delivery Point: A specified HSI Facility.
2.3.6 Contract Quantity: Specified volumes.
2.3.7 Delivery Period: The Delivery Period agreed to by
the third party supplier, provided that Enron shall have no liability
for any failure of such third party supplier to deliver the product
pursuant to the terms negotiated with such third party supplier.
2.3.8 Purchase Period: HSI shall complete the purchase of
the Commodity on the day of its choosing during the 120 day period
which begins on the First Availability Date.
2.3.9 Purchase Price. Determined in accordance with
Section 2.4.
2.4 Purchase Price on Mill Specific Purchases. The Purchase
Price on each Mill Specific Purchase shall be equal to the product of
(i) the Adjusted Index Price plus the Cost of Carry and the Price
Differential and (ii) the Contract Quantity.
2.4.1 The "Adjusted Index Price" and "Cost of Carry" shall
have the meanings set forth in Section 1.3.
2.4.2 The "Price Differential" means the amount (if any) by
which the price per Ton that Enron is required to pay the third party
supplier for such Commodity is greater than the Trade Date Adjusted
Index Price. The "Trade Date Adjusted Index Price" is (a) PMAG next
published after the Trade Date, plus (b) the applicable Extras
Adjustment for such Commodity determined in accordance with the Extras
Adjustment Schedule attached as Schedule I, plus (c) the Location
Adjustment for such Product determined in accordance with the Location
Adjustment Schedule attached as Schedule I.
2.5 HSI Negotiated Purchases. Subject to the Combined Purchase
Limit (described in Section 2.9) and the other terms of this Agreement,
HSI may negotiate the terms of a Commodity purchase with a steel mill
(an "HSI Negotiated Purchase") and Enron shall purchase such Commodity
from the designated mill in accordance with the terms HSI negotiated.
Contemporaneously with any such HSI Negotiated Purchase, HSI and Enron
shall enter into a Transaction whereby HSI agrees to purchase such
Commodity from Enron, which Transaction shall be completed pursuant to
the provisions of Section 1.4 and shall contain the following terms:
2.5.1 Trade Date: The date Enron enters into a purchase
agreement with a steel mill to purchase Commodity pursuant to its
obligations under this Section 2.5.
2.5.2 Seller: Enron.
2.5.3 Buyer: HSI.
2.5.4 Commodity: The Commodity purchased under the
Transaction.
2.5.5 Delivery Point: A specified HSI Facility.
2.5.6 Contract Quantity: Specified volumes.
2.5.7 Delivery Period: The Delivery Period HSI negotiated
with the mill, provided that Enron shall have no liability for any
failure of the mill to deliver the product pursuant to the terms
negotiated by HSI with the mill.
2.5.8 Purchase Period: HSI shall complete the purchase of
the Commodity on the day of its choosing during the 120 day period
which begins on the First Availability Date.
2.5.9 Purchase Price. Determined in accordance with
Section 2.6.
2.6 Purchase Price for HSI Negotiated Purchases. The Purchase
Price for each HSI Negotiated Purchase shall be equal to the product of
(i) the HSI Index Price plus the Cost of Carry and (ii) the Contract
Quantity.
2.6.1 The "HSI Index Price" shall be the Adjusted Index
Price plus the HSI Price Differential if the HSI Negotiated Price is
greater than the Trade Dated Adjusted Index Price, but it shall be the
Adjusted Index Price minus the HSI Price Differential if the HSI
Negotiated Price is less than the Trade Date Adjusted Index Price.
2.6.2 The "HSI Price Differential" means the absolute value
of the difference between the price per Ton that Enron is required to
pay the third party supplier for such Commodity (the "HSI Negotiated
Price"), and the Trade Date Adjusted Index Price. The "Trade Date
Adjusted Index Price" is (a) PMAG next published after the Trade Date,
plus (b) the applicable Extras Adjustment for such Commodity determined
in accordance with the Extras Adjustment Schedule attached as Schedule
I, plus (c) the Location Adjustment for such Product determined in
accordance with the Location Adjustment Schedule attached as Schedule
I.
2.6.3 The "Adjusted Index Price" and "Cost of Carry" shall
have the meanings set forth in Section 1.3.
2.7 HSI Purchases of Non-Commodity Steel Products. HSI may
request that Enron purchase Non-Commodity steel products in connection
with Commodity purchases Enron is making and such request shall include
volumes, specifications, delivery point, delivery period, and all other
information requested by Enron in connection with such Non-Commodity
request. Enron shall provide HSI with a copy of the terms pursuant to
which the mill is willing to supply such steel products. Subject to
the Combined Purchase Limit (described in Section 2.9) and the other
terms of this Agreement, if HSI agrees to the mill's terms Enron shall
purchase such Non-Commodity steel products in accordance with the
mill's terms (a "Non-Commodity Purchase"). Contemporaneously with any
such Non-Commodity Purchase, HSI and Enron shall enter into a
transaction whereby Enron shall agree to sell such steel products to
HSI and such transaction shall be governed by the terms of and
otherwise treated as though it is a Transaction under the Master
Agreement. All transactions under this Section 2.7 shall be completed
pursuant to the provisions of Section 1.4 and shall contain the
following terms:
2.7.1 Trade Date: The date Enron enters into a purchase
agreement with a steel mill to purchase the steel products pursuant to
its obligations under this Section 2.7.
2.7.2 Seller: Enron.
2.7.3 Buyer: HSI.
2.7.4 Product(s): The Non-Commodity steel products the
mill has agreed to provide.
2.7.5 Delivery Point: A specified HSI Facility.
2.7.6 Contract Quantity: Specified volumes.
2.7.7 Delivery Period: The Delivery Period specified by the
mill, provided that Enron shall have no liability for any failure of
the mill to deliver the product pursuant to the terms specified by the
mill.
2.7.8 Purchase Period: HSI shall complete the purchase of
the Contract Quantity on the day of its choosing during the period
which begins on the First Availability Date and ends on the date (3)
Business Days prior to the date Enron is obligated to pay the mill for
such steel products.
2.7.9 Purchase Price. Determined in accordance with
Section 2.8.
2.8 Purchase Price on Non-Commodity Purchases. The Purchase
Price on each Non-Commodity Purchase shall be equal to the total of the
actual purchase price payable for such Non-Commodity Purchase plus all
other direct costs and expenses incurred by Enron in connection with
the acquisition and delivery of the steel products to be delivered to
HSI including without limitation all transportation costs.
2.9 Combined Purchase Limit. HSI shall not, in any calendar
quarter, enter into Mill Specific Purchases (as such term is defined in
Section 2.3), HSI Negotiated Purchases (as such term is defined in
Section 2.5) and Non-Commodity Purchases (as such term is defined in
Section 2.7), that collectively are for a greater number of Tons than
the number of Tons equal to 20% of the Tons of Commodity that were
purchased by HSI pursuant to the Transactions completed under this
Agreement in the previous calendar quarter (the "Combined Purchase
Limit").
2.10 Enron's Option. If Commodity is delivered to HSI at an HSI
Facility from any party other than Enron, then Enron may at its option
purchase such Commodity for a price equal to (a) the most recently
published PMAG as of the date Enron makes such purchase, plus (b) the
applicable Extras Adjustment for such Commodity determined in
accordance with the Extras Adjustment Schedule attached as Schedule I,
plus (c) the Location Adjustment for such Product determined in
accordance with the Location Adjustment Schedule attached as Schedule
I. Concurrently with any such purchase, HSI shall enter into a
Transaction to purchase a like type and volume of Commodity from Enron
pursuant to a Transaction that shall have the terms set forth in
Section 1.2 and which shall be completed pursuant to the provisions of
Section 1.4.
3. Forecasting. HSI shall provide Enron with annual and
monthly forecasts of its Commodity requirements by type, volume,
location, and anticipated delivery dates and such forecasts shall note
any specific mill requirements and seasonal factors. HSI will deliver
an annual forecast on the date of this Agreement and on each December
15th hereafter that includes a month by month forecast for the
following twelve (12) month period. HSI will deliver a four (4) month
rolling forecast, on the last Monday of each month that shall include a
month-by-month forecast for the following four (4) months. The monthly
forecasts in each rolling forecast shall comply with the following
accuracy standards: (i) the forecast for the month immediately
following delivery of such rolling Forecast shall designate as
accurately as possible the types, volumes, locations and anticipated
delivery dates that HSI expects to take Commodity in such month, (ii)
the forecast for the second month following delivery of such rolling
forecast shall designate as accurately as possible the types, volumes,
locations and anticipated delivery dates that HSI is reasonably certain
to take Commodity in such month, (iii) the forecast for the third and
fourth month following delivery of such rolling forecast shall
designate HSI's best estimate of the types, volumes, locations and
anticipated delivery dates for Commodity in such months.
4. Covenants.
4.1 Term. The term of this Agreement ("Term") shall begin on
the Commencement Date, however, the provisions of the Inventory
Management Agreement for Phase I shall govern all Transactions between
the Parties until Phase II commences as provided for in the Inventory
Management Agreement for Phase I. On the date Phase II commences and
thereafter all new Transactions shall be completed in accordance with
the terms of this Agreement, however, all Put Options and Call Options
and the obligations related thereto that are in existence as of the
commencement of Phase II shall continue to be governed by the Inventory
Management Agreement for Phase I. The purchasing obligations set out
in Sections 1 and 2 hereof shall terminate on June 30, 2016.
Notwithstanding the foregoing, this Agreement shall terminate
immediately upon the termination of the Warehouse Agreement.
4.2 Exclusivity. All of HSI's Commodity purchases from Enron
shall be made pursuant to the terms of this Agreement and the Master
Agreement. Neither HSI nor any of its Affiliates shall purchase
Commodity from any third party during the term of this Agreement except
for (i) purchases from third party xxxxx that are permitted by Section
1.6.2 because Enron has elected not to supply such Commodity pursuant
to Enron's rights as set forth in Section 1.6.1 and (ii) purchases from
third parties that are made following Enron giving notice to HSI that
it is unable to supply Commodity that has been appropriately requested
by HSI pursuant to Section 2.1.
4.3 [Intentionally deleted].
4.4 Processing. HSI shall only process Commodity that (a) is in
its current inventory as of the date of this Agreement, (b) has already
been ordered from a third party supplier as of the date of this
Agreement, (c) is purchased in accordance with the terms of this
Agreement, or (d) is owned by a third party and is being processed
pursuant to a customer tolling agreement.
4.5 Adjustments to Index Price and PMAG.
4.5.1 Commencing with the first six month period that
begins on December 31st or June 30th after the commencement of Phase II
and on each December 31st or June 30th thereafter, each Party shall have
the right to request one adjustment to the method of determining the
Adjusted Index Price if such Party believes that the components of the
Adjusted Index Price for any Delivery Point fail in any material
respect to accurately reflect the market price for such Commodity (the
"Market Amount") assuming a purchaser similar to HSI as to volumes
purchased, location of deliveries, creditworthiness and otherwise in
the position of HSI. If the Parties agree upon the adjustment, then
Enron shall adjust the components to the Adjusted Index Price, as
reasonably determined by the Parties, to cause the Adjusted Index Price
in future periods to materially correspond with the expected Market
Amount for the Commodity for such periods, such adjustment to be
evidenced by an amendment to Schedule I prepared by Enron. If the
Parties are unable to agree as to whether the components of the
Adjusted Index Price accurately reflect the Market Amount or if HSI
does not agree to Enron's proposed adjustments, either Party may
promptly notify the other in writing of such disagreement, setting
forth in reasonable detail the basis therefor. Enron and HSI shall
cooperate in good faith to resolve such disagreement within 10 Business
Days of such notification. If Enron and HSI are unable to resolve the
disagreement within such period, either Party may institute dispute
resolution proceedings in accordance with Section 7 of the Master
Agreement. Until resolution of such dispute, the Adjusted Index Price
in effect prior to the disputed determination or adjustment shall
remain in effect. Upon resolution of the dispute, the resulting
determination or adjustment shall become effective for the Commodity,
retroactive to the date of the delivery of a notice of a request for
adjustment. The difference with respect to such revised Adjusted Index
Price for the period of the dispute shall be paid by the owing Party
within 10 days of the final determination.
4.5.2 In the event that PMAG ceases to be published or is
otherwise no longer available, then Enron shall use a substitute index
in place of PMAG that is publicly available and is based on
substantially the same market information that PMAG was based on. If
there is no suitable publicly available substitute index then Enron and
HSI shall construct a formula that generates a replacement index and is
based on substantially the same market information that PMAG was based
on. Any substitute index that is implemented pursuant to this Section
4.5.2 shall be used for all purposes of this Agreement in the same
manner which PMAG was previously used in this Agreement and shall be
subject to subsequent adjustment as provided in Section 4.5.
4.6 Taxes. HSI will be responsible for payment of all taxes in
connection with the purchases and sales of commodity contemplated by
this Agreement and the other Transaction Documents except for Enron's
income taxes.
4.7 Sales. HSI shall not sell an amount of unprocessed
Commodity in any month that is greater than twenty percent (20%),
measured in Tons, of all Commodity that HSI sells in such month,
provided, that cold roll steel products shall be excluded from all
calculations with respect to this Section 4.7.
5. Records and Audits. HSI will maintain accurate and
complete records with respect to the Commodity purchased and sold
during the term of this Agreement. HSI shall send to Enron in Houston
via email (or other mutually acceptable format) daily reports detailing
the Enron Commodity at each HSI Facility in form and substance
reasonably satisfactory to Enron. HSI shall permit Enron's employees,
representatives, agents and authorized designees to examine and verify
HSI's records with respect to any Commodity subject to the terms of the
Master Agreement and to inspect any Commodity in the possession or
under the control of HSI, wherever located. Except during an emergency
or following an Event of Default, all such inspections shall be
conducted during normal business hours. Without limiting the
generality of the foregoing, Enron shall have the right (but not the
obligation) to have its employees, representatives, agents or
authorized designees present at the HSI Facilities or at any of HSI's
offices or other facilities (a) to audit HSI's record-keeping with
respect to the Commodity, (b) to ensure proper identification, tracking
and storage of the Commodity or (c) for such other purposes as Enron
shall determine in its sole discretion; provided, however, that Enron
shall not incur, whether by the performance or non-performance of such
undertakings, any liability on account thereof.
6. Security Interests.
6.1 True Sale. The Parties intend that the sale and purchase of
Commodity or other steel products pursuant to this Agreement, the
Master Agreement and each Confirmation issued thereunder shall be
treated as a true sale. If the sale arrangements provided for
hereunder are ever deemed to be a financing and not a true sale, the
Parties agree that all Commodity and steel products that by the terms
of this Agreement are owned by Enron but which are determined because
of a recharacterization or otherwise to be owned or deemed to be owned
by HSI (the "Enron Inventory Collateral") shall be subject to the lien
and security interest granted in favor of Enron pursuant to Section 6.2
below.
6.2 Security Agreement. As security for the payment of the
obligations of HSI hereunder and under the other Transaction Documents,
together with any increases, extensions, and rearrangements of such
obligations under any amendments, supplements, and other modifications
thereof, HSI hereby grants to Enron a first priority security interest
in all of HSI's present and future right, title, and interest in and to
the following collateral: (i) any Enron Inventory Collateral in
transit to or stored at any HSI Facility, (ii) all payments under any
insurance, indemnity, warranty, or guaranty of or for any Enron
Inventory Collateral, and (iii) all books and records of HSI relating
to the foregoing including mill certifications. HSI shall execute,
deliver, and file such financing statements as are necessary to perfect
the foregoing interest. HSI hereby represents and warrants that there
is no other security interest in any of the above described collateral
and HSI shall not grant or permit to exist any other security interest
in any of such collateral.
6.3 Foreclosure on Collateral. Upon the occurrence of any Event
of Default by HSI under any of the Transaction Documents, Enron may
exercise all the rights and remedies of a secured Party under the
Uniform Commercial Code ("UCC") as in effect in the State of Texas
whether or not the affected collateral is located in Texas. Enron may
sell any collateral at one or more public or private sales, at the
office of Enron or elsewhere, for cash or credit and upon such other
terms as Enron deems commercially reasonable. Enron may bid at any
such sale. HSI agrees that to the extent permitted by law such sales
may be made without notice. If notice is required by law, HSI hereby
deems ten days advance notice of the time and place of any public or
private sale reasonable notification, recognizing that if the
collateral threatens to decline speedily in value or is of a type
customarily sold on a recognized market, shorter notice may be
reasonable. Enron shall not be obligated to make any sale of
collateral regardless of notice of sale having been given. Enron may
adjourn any sale by announcement at the time and place fixed therefor,
and such sale may, without further notice, be made at the time and
place to which it was adjourned. In the event that any sale hereunder
is not completed or is defective in the opinion of Enron, Enron shall
have the right to cause subsequent sales to be made hereunder. The
remedies described in this Section 6.3 shall be cumulative with all
other remedies of Enron hereunder or under any other Transaction
Document and no delay in enforcing the foregoing shall act as a waiver
of Enron's rights hereunder or thereunder.
7. Storage. Contemporaneously with the execution of this
Agreement, the Parties have entered into a Warehouse Agreement under
which HSI shall provide storage, warehouse, and related services to
Enron at each of HSI's Facilities, all as more fully provided for in
the Warehouse Agreement.
8. Events of Default.
8.1 An event of default ("Event of Default") with respect to a
Party (the "Defaulting Party") shall mean any of the following:
8.1.1 the failure of Defaulting Party to pay when due any
required payment under this Agreement and such failure is not remedied
within three (3) Business Days after written notice thereof;
8.1.2 the failure of the Defaulting Party to perform or
otherwise comply with Section 4.2, 4.3, 4.4 or any material provision
of this Agreement to be performed by it, which failure remains uncured
for more than thirty (30) days after written notice thereof;
8.1.3 any representation or warranty made or deemed made by
the Defaulting Party herein or in any written statement or certificate
at any time given by any such Party pursuant to this Agreement shall be
false or misleading in any material respect on the date as of which
made or deemed made;
8.1.4 the occurrence of either (a) six (6) Delivery
Failures (defined below) in any calendar year or (b) three (3) Delivery
Failures in any two consecutive calendar quarters. A "Delivery
Failure" shall occur when all of the following take place with respect
to a Transaction entered into under this Agreement: (a) HSI gives a
proper Notice of Purchase Date and is otherwise entitled to complete
such purchase, (b) such Notice of Purchase Date is given in connection
with a bona fide customer order for Commodity, (c) Enron does not
deliver the requested Tons of Commodity to HSI because Enron has sold
them to a third party, (d) HSI is entitled to a payment from Enron
under Section 6.3 of the Master Agreement for Enron's non-delivery, (e)
following Enron's failure to deliver, HSI provides Enron with a notice
stating that it needs delivery of the Commodity within 48 hours to fill
a bona fide customer order (together with documents confirming same)
and (f) Enron fails to deliver such Commodity to HSI within 48 hours of
receiving the notice described in (e) above; or
8.1.5 the occurrence as to such Party of any event of
default under any other Transaction Document.
9. Remedies. Upon the occurrence and during the continuance
of an Event of Default, the non-defaulting Party shall have all of the
rights and remedies provided for in the Master Agreement and all
remedies afforded by law or at equity, which remedies shall be
cumulative.
10. Warranty Claims Handling.
10.1 HSI shall be responsible for examining all Commodity that is
delivered to an HSI Facility.
10.2 With respect to steel products that Enron conveys to HSI
under the provisions of this Agreement (other than conveyances under
Sections 2.1, 2.3, 2.5 and 2.7), Enron warrants to HSI that such steel
products shall conform to the specifications set forth in the applicable
Transaction; provided, however, (i) HSI will be responsible for
inspecting all incoming steel products as specified in Section 10.1 and
as described in the Warehouse Agreement, and shall cooperate with Enron
to reject nonconforming or defective steel products, and shall provide,
perform and deliver all related notices, unloading, handling, and
services with respect to steel products within the time period allowed
for inspection and rejection of goods by the mill that provides such
steel products; and (ii) such warranty shall not apply to any defects
that could have been discovered in connection with the delivery of the
Commodity to the HSI Facility. Notwithstanding HSI's obligation to
inspect Commodity upon receipt at an HSI Facility, HSI shall continue
to maintain its rights and privileges to warranty claims for Commodity
defects until such defects are discoverable. In the event that it is
determined that Enron has any warranty obligations with respect to any
steel products, then at Enron's option replacement of the defective
steel products or refund or reduction of the purchase price therefor
shall be the sole and exclusive remedy for any claim by HSI related
thereto.
10.3 With respect to Commodity and Non-Commodity products that
Enron conveys to HSI pursuant to Sections 2.1, 2.3, 2.5 or 2.7 Enron
hereby assigns to HSI all warranties received by Enron under the
purchase arrangements for such Commodity. Pursuit of rights under such
warranties shall be the sole and exclusive remedy of HSI with respect to
any Commodity or Non-Commodity products that fail to meet the
specifications for which HSI has contracted or which is otherwise
defective. Enron makes no warranties with respect to Commodity or Non-
Commodity products which Enron conveys to HSI pursuant to Sections 2.1,
2.3, 2.5 or 2.7 of this Agreement and all warranties with respect
thereto are hereby expressly disclaimed.
10.4 The Parties shall each cooperate with the other in pursuing
any warranty claims arising hereunder or arising in connection with the
purchase of Commodity or Non-Commodity products from third parties.
10.5 THE FOREGOING WARRANTIES ARE EXCLUSIVE, AND ARE IN LIEU OF
ALL OTHER WARRANTIES (WHETHER WRITTEN OR ORAL, EXPRESS OR IMPLIED),
INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, FITNESS
FOR A PARTICULAR PURPOSE, DESCRIPTION, QUALITY, OR ANY OTHER MATTER WITH
RESPECT TO ALL COMMODITY TO WHICH THIS AGREEMENT OR THE MASTER AGREEMENT
RELATE.
11. LIMITATION OF LIABILITY. EACH PARTY'S LIABILITY TO THE
OTHER PARTY FOR BREACH HEREOF OR DEFAULT HEREUNDER 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. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE
OTHER PARTY UNDER ANY PROVISION OF THIS AGREEMENT OR ANY OTHER
TRANSACTION DOCUMENT, TRANSACTION OR CONFIRMATION FOR CONSEQUENTIAL,
INCIDENTAL, PUNITIVE, EXEMPLARY OR INDIRECT DAMAGES, LOST PROFITS, OR
BUSINESS INTERRUPTION DAMAGES, WHETHER BY STATUTE, IN TORT, IN
CONTRACT, UNDER ANY INDEMNITY PROVISION OR OTHERWISE. THIS SECTION 11
SHALL SURVIVE THE EXPIRATION OR TERMINATION OF THIS AGREEMENT AND ALL
TRANSACTIONS CONTEMPLATED HEREBY.
12. Miscellaneous.
12.1 Miscellaneous. All of the provisions set forth in Section 8
of the Master Agreement are incorporated by reference herein and shall
apply to this Agreement as though each reference to the Master
Agreement in such Section was a reference to this Agreement.
12.2 Designated Representatives. As set forth on Exhibit A
hereto, each Party shall designate two representatives who shall serve
as the primary and secondary contacts of such Party for all operational
aspects contemplated by this Agreement and the other Transaction
Documents including, but not limited to, forecasts, purchases and
record reporting. The names of a Party's designated representatives may
be changed at any time by either Party by giving prior written notice
to the other.
12.3 Payments. Unless otherwise specified by the receiving
Party, all amounts to be paid hereunder or under the Master Agreement
shall be paid by wire transfer into the account specified from time to
time by the receiving party.
12.4 Financing Arrangements. Enron may pledge, encumber,
assign, sell or otherwise transfer Commodity or other steel products or
any rights thereto to a third party in connection with Enron's
borrowing and / or financing activities regardless of whether such
Commodity or other steel products are subject to a Call Option or other
Transaction under the Master Agreement. If the Commodity or other steel
products subject to such pledge, encumbrance, assignment, sale or other
transfer are not removed from the HSI Facility where they are located
(because of or in connection with such transaction) then, Enron shall
not be obligated to pay any Cost of Carry Rebate with respect to such
Commodity or other steel products because of such pledge, encumbrance,
assignment, sale, or other transfer or the transactions related
thereto, and for purposes of the Warehouse Agreement and all other
Transaction Documents such Commodity or other steel products shall be
treated the same as all other Enron Inventory Collateral that is not
subject to such a financing transaction.
This Agreement is subject to the terms of that certain Post Closing
Agreement of even date herewith entered into by and among the Parties
and certain other signatories provided for therein. The Post Closing
Agreement provides for the satisfaction of certain specified
requirements ("Post Closing Items") more fully described therein. THIS
WRITTEN AGREEMENT, THE TRANSACTION DOCUMENTS AND THE POST CLOSING
AGREEMENT REPRESENT THE FINAL AGREEMENT AMONG THE PARTIES WITH RESPECT
TO THE SUBJECT MATTER HEREOF AND MAY NOT BE CONTRADICTED BY EVIDENCE OF
PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES.
THERE ARE NO UNWRITTEN ORAL AGREEMENTS AMONG THE PARTIES.
IN WITNESS WHEREOF, the Parties hereto have caused this Agreement
to be executed by a duly authorized representative as of the day and
year first above written.
ENRON NORTH AMERICA CORP.
By: _______________________________
Name: _______________________________
Title:_______________________________
HUNTCO STEEL, INC.
By: _______________________________
Name: _______________________________
Title:_______________________________
