INVENTORY MANAGEMENT AGREEMENT
PHASE I
This Inventory Management Agreement-Phase I (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 30 days 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
II) of even date herewith (as amended from time to time, the "Inventory
Management Agreement for Phase II") regarding purchase and sale
obligations during the term thereof ("Phase II").
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. Put Options. During the term of this Agreement HSI and Enron
shall comply with the following:
1.1. Commodity Purchases. HSI will notify Enron ("Purchase
Notification") of HSI's anticipated purchase of Commodity from a third
party mill ("Commodity Purchase") prior to ordering such Commodity.
The Purchase Notification shall include the proposed seller, delivery
point, delivery period, specifications, estimated delivery date,
volumes, price quotations and all other relevant information for the
Commodity Purchase. For each Purchase Notification given to Enron by
10:00 a.m. on any Business Day, then Enron shall elect by the close of
business on such Business Day whether it will issue a Put Option under
Section 1.2 of this Agreement with respect to such Purchase
Notification.
1.2. Put Option. Subject to the other terms hereof, for each
Purchase Notification and the corresponding Commodity Purchase, in
consideration of the obligations set forth herein, Enron shall sell HSI
an option ("Put Option") under the Master Agreement which upon exercise
by HSI as the Option Buyer, Enron as the Option Seller shall have the
obligation to buy and receive, and HSI as the Option Buyer shall have
the obligation to sell and deliver, the Option Quantity, at the Strike
Price, and upon the other terms and conditions set forth herein. Each
Put Option given in connection with a Commodity Purchase, shall have
the following corresponding terms:
1.2.1. Trade Date: The date Enron issues the Put
Option.
1.2.2. Option Seller: Enron.
1.2.3. Option Buyer: HSI.
1.2.4. Commodity: The type of Commodity purchased
under the Commodity Purchase.
1.2.5. Delivery Point: A specified HSI Facility.
1.2.6. Option Quantity: Like volumes as set forth in
the Commodity Purchase.
1.2.7. Option Term: From the Trade Date until the
earlier of (a) the date six (6) months after the Trade Date or (b) the
date three (3) days after receipt by HSI of the Option Quantity at the
Delivery Point from the third party supplier.
1.2.8. Strike Price. Determined in accordance with
Section 1.3.
1.2.9. Estimated Delivery Date: The date HSI
anticipates receipt of such Commodity.
1.3. Put Option Strike Price. The Strike Price under each Put
Option shall be an amount equal to (a) the Adjusted Index Price less
the Applicable Discount, multiplied by (b) the Option Quantity.
1.3.1. The "Adjusted Index Price" means, for any Put
Option, (a) PMAG next published after the Trade Date ("Next PMAG");
provided, that Next PMAG for Commodity Purchase from non-U.S. xxxxx
shall be the PMAG that is next published after the date which is sixty
(60) days prior to the Estimated Delivery Date of such Commodity 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. The "PMAG" shall have the meaning set forth on Schedule II hereto.
1.3.2. The "Applicable Discount" means, for any Put
Option, the sum of the Cost of Carry Discount and the Reserve Discount.
(a) The "Cost of Carry Discount" means, for any Put
Option, an amount equal to (i) the Adjusted Index Price less the
Reserve Discount, multiplied by (ii) an amount equal to (x) (LIBOR plus
2.25%) divided by 3. "LIBOR" shall mean the LIBOR in effect as of the
exercise date of the Put Option ("Date of Put Exercise") as the term
LIBOR is defined on Schedule II hereto.
(b) The "Reserve Discount" means an amount equal to 10%
of the Adjusted Index Price.
1.4. Exercise of Put Option. To exercise a Put Option, HSI shall
(a) ensure that the Option Quantity is present at the Delivery Point,
(b) provide Enron with written notification of its election to exercise
the Put Option, and (c) comply with the requirements set out in Section
2.2 of the Warehouse Agreement. With respect to each Put Option
exercised prior to3:00 p.m. (Houston time) on a Business Day, Enron
shall pay to HSI on the following Business Day the Put Option Strike
Price. With respect to each Put Option exercised after 3:00 p.m.
(Houston time) on a Business Day, Enron shall pay to HSI on the second
Business Day following the Put Option Strike Price. If any Put Option
is exercised prior to the publication of the applicable Next PMAG, then
Enron will pay to HSI an estimated Strike Price that will be calculated
based on the most recently published PMAG as of the date of the
exercise of the Put Option. Promptly after the publication of Next
PMAG, Enron shall recalculate the Strike Price for any affected Put
Options and will either invoice HSI for any overpayment, which invoice
will be due within ten days, or pay to HSI the amount of any
underpayment.
1.5. Minimum Annual Purchase Quantity.
1.5.1. HSI shall purchase form third party xxxxx and
sell to Enron pursuant to Put Options 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"), and HSI shall purchase from Enron under Call Options (defined
below) at least the Minimum Annual Quantity of Commodity during each 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 pursuant to Call Options at least the Minimum Annual
Quantity (for any reason whatsoever) in any CD Year, HSI shall pay
Enron a "Purchasing Shortfall Fee" of $10 per Ton for each Ton that
HSI's actual purchases pursuant to Call Options 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
in which the Commencement Date takes place and each month thereafter up
to and including the month in which Phase II commences (as described in
Section 4.1). 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 Section 1.5 of the Inventory Management Agreement for Phase II
shall supercede the provisions of this Section 1.5.
1.6. Limitations. Notwithstanding the foregoing, Enron shall
not be obligated to issue a Put Option or Call Option or perform under
any Put Option or Call Option 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), (c) HSI fails to order the Commodity which is the
subject of the corresponding Commodity Purchase, or (d) the Commodity
purchased under the corresponding Commodity Purchase is not delivered
to the appropriate HSI Facility. 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 and all open Transactions under the Inventory
Management Agreement for Phase II exceeds the greater of (i) 400,000
Tons or (ii) the total Tons purchased by HSI under all Call Options
during the preceding 12 month period divided by three (3). The
"Inventory Credit Cap" shall be exceeded if the sum of (A) the amount
paid or payable by Enron with respect to the Outstanding Tons
(excluding the amount paid or payable with respect to unexercised Put
Options) plus (B) any other amounts owed under the Transaction
Documents other than principal and interest due under the Credit
Agreement, exceeds $55,000,000.
1.7. Enron's Option. If Commodity is delivered to HSI at a HSI
Facility and such Commodity is not subject to a Put Option or is
otherwise not put to Enron, then Enron may at its option buy such
Commodity as though it were being put to Enron under the terms of a Put
Option. The Purchase Price for any such Commodity shall be the same as
the Put Option Strike Price except that the PMAG used in calculating
the purchase price shall be the most recently published PMAG as of the
date of purchase. As to any such purchases, Enron shall issue a Call
Option as provided for in Section 2.1 below.
2. Purchases from Enron.
2.1. Call Option. Subject to the other terms hereof, upon
exercise of a Put Option, Enron will sell HSI an option ("Call Option")
under the Master Agreement which upon exercise by HSI as the Option
Buyer, Enron as the Option Seller shall have the obligation to sell and
deliver, and HSI as the Option Buyer shall have the obligation to buy
and receive, at the Delivery Point, the Option Quantity, at the Strike
Price, and upon the other terms and conditions of the Transaction
Documents including those pertaining to the physical purchase and sale
of such Option Quantity. Each Call Option given in connection with the
exercise of a Put Option, shall have the following corresponding terms:
2.1.1. Trade Date: The Date of Put Exercise.
2.1.2. Option Seller: Enron.
2.1.3. Option Buyer: HSI.
2.1.4. Commodity: The type of Commodity sold under
the Put Option.
2.1.5. Delivery Point: The Delivery Point under the
Put Option.
2.1.6. Option Quantity: Like volumes as set forth in
the Put Option.
2.1.7. Option Term: 120 days.
2.1.8. Strike Price. Determined in accordance with
Section 2.2.
2.2. Call Option Strike Price. The Strike Price for Commodity
purchased under a Call Option shall be equal to the product of (a) the
Adjusted Index Price less the Adjusted Discount, and (b) the Tons of
Commodity purchased on such Date.
2.2.1. The "Adjusted Index Price" means, for any Call
Option, (a) PMAG next published after the date the Call Option is
exercised ("Date of Call Exercise"), 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.
2.2.2. The "Adjusted Discount" means, for any Call
Option, the sum of (i) the Reserve Discount for the corresponding Put
Option, and (ii) the Unused Cost of Carry.
2.2.3. The "Unused Cost of Carry" means, for any Call
Option, the product of (i) the number of days between the Date of Call
Exercise and the final date of the Option Term and (ii) the Cost of
Carry Discount under the corresponding Put Option divided by 120.
2.3. Exercise of Call Option. HSI may exercise a Call Option
only under the following procedure.
2.3.1. On or before 10:00 a.m. (Houston time) of each
Business Day HSI will give Enron written notice of its election to
exercise any Call Option ("Notice of Exercise") under which it desires
to receive Commodity on or before the following Business Day. The Date
of Call Exercise shall be the date the Notice of Exercise is given and
each such notice shall be irrevocable. Enron will inform HSI of the
Estimated Call Option Strike Price on or before the close of business
on the Date of Call Exercise. HSI shall pay the Estimated Call Option
Strike Price to Enron prior to taking delivery of such Commodity and
not later than the close of business on the day after the Date of Call
Exercise. If a Call Option is not timely and properly exercised, it
will expire and neither Party shall have any further rights or
liabilities with respect to such Call Option except for the obligations
set forth in Section 2.3.5 and 2.3.6. The "Estimated Call Option Strike
Price" shall be calculated by Enron based on the Adjusted Index Price
for such Call Option using the most recently published PMAG as of the
Date of Call Exercise.
2.3.2. Upon Enron's notification to HSI of its receipt
of the Estimated Call Option Strike Price, HSI may take delivery of and
title to the Commodity purchased under the Call Option shall transfer
to HSI.
2.3.3. HSI shall have the right on any Business Day to
exercise Call Options and take immediate delivery and title to the
Commodity thereunder, so long as (a) immediately following exercise of
such Call Options the aggregate unpaid amount that HSI owes Enron with
respect to all Call Options exercised under this Section 2.3.3 is less
than $100,000 and (b) no Event of Default has occurred and is
continuing. In connection with Call Options exercised under this
Section 2.3.3, HSI shall make payment in full to Enron of the Estimated
Call Option Strike Price (as described in Section 2.3.1) by not later
than 2:00 p.m. (Houston time) of the Business Day after the day HSI
exercises such Call Option.
2.3.4. Promptly after each publication of PMAG, Enron
shall calculate the actual amount that was due in connection with all
Call Options exercised during the period commencing with the last
publication of PMAG and for which the Estimated Call Option Strike
Price was due or paid 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.
2.3.5. Five days prior to the expiration of each
unexercised Call Option, HSI shall deliver to Enron all mill and test
certificates and other documentation with respect to the Commodity that
is subject to such Call Option.
2.3.6. It is contemplated hereunder that Enron may
sell to third parties Commodity that was acquired by Enron pursuant to
a Put Option and is subject to a Call Option. If HSI does not deliver
to Enron a Notice of Exercise prior to the expiration of the Option
Term and Enron has sold during such Call Option's Option Term a portion
of the Commodity that was subject to such Call Option to third parties,
then with respect to the Tons of Commodity sold to third parties, Enron
shall pay to HSI a Cost of Carry Rebate (hereinafter defined) which
shall be payable on the expiration of the applicable Option Term. The
"Cost of Carry Rebate" shall be a per Ton payment equal to the product
of (i) the Cost of Carry Discount under the corresponding Put Option
multiplied by (ii) the number of days between the date Enron sold such
Commodity to a third party and the date Enron acquired replacement
Commodity available to HSI divided by 120.
2.3.7. Following proper delivery by HSI of the Notice
of Exercise, Enron as the Option Seller shall have the obligation to
sell and deliver, and HSI as the Option Buyer shall be obligated to buy
and receive the designated Commodity. Failure to sell and deliver or
buy and receive shall obligate the non-performing party to pay the
amounts specified for such non-performance in the Master Agreement. In
addition to the remedies set forth in the Master Agreement, if (a) HSI
gives a proper Notice of Exercise and is otherwise entitled to exercise
a Call Option, (b) such Notice of Exercise 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 and (d) HSI is entitled to a payment from Enron under
Section 6.3 of the Master Agreement for Enron's non-delivery, then
Enron shall pay HSI an additional per Ton payment equal to the Cost of
Carry Discount under the corresponding Put Option for each Ton Enron
was required to but did not deliver.
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 and continue in full force and effect until Phase
II has commenced and all Transactions entered into pursuant to the
terms of this Agreement have been consummated and all amounts due with
respect to such Transactions or otherwise due hereunder have been paid.
Phase II shall commence on the date that is eighteen (18) months after
the date of this Agreement (the "Scheduled Phase II Commencement
Date"), unless HSI gives Enron 90 days prior written notice of its
election to cause Phase II to commence prior to the Scheduled Phase II
Commencement Date. Such written notice shall specify an earlier
Scheduled Phase II Commencement Date, which date shall be the first day
of a calendar month. Any notice from HSI of an early commencement of
Phase II shall be irrevocable. Upon the commencement of Phase II all
new Transactions shall be completed in accordance with the terms of
that certain Inventory Management Agreement for Phase II dated as of
even date herewith by and between HSI and Enron. Notwithstanding the
foregoing, this Agreement shall terminate immediately upon the
termination of the Warehouse Agreement.
4.2. Foreign Purchase Limit. The amount of Commodity milled
outside of the United States that is ordered by HSI in any calendar
quarter shall not exceed 30% (measured in Tons) of the total amount of
Commodity ordered by HSI in such calendar quarter.
4.3. 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 made in compliance
with Section 1.1 and 1.2, and (ii) purchases from third party xxxxx
that are permitted because Enron has elected not to supply such
Commodity pursuant to Enron's rights as set forth in Section 1.6.
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 six month period beginning
on June 30, 2001, and for each six month period that begins on 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 and each day's report shall be delivered to Enron
not later than 8:00 a.m. of the following day. 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. 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 the requested exercise of a Call Option: (a) HSI gives a proper
Notice of Exercise and is otherwise entitled to exercise such Call
Option, (b) such Notice of Exercise 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 a HSI Facility and shall not exercise a Put Option with
respect to any Commodity that fails to meet the specification set out on
Schedule 1 to the Master Agreement or which is otherwise defective.
10.2. With respect to Commodity Enron conveys to HSI pursuant to
the Master Agreement, 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 that fails to meet the
specifications for which HSI has contracted or which is otherwise
defective. Enron shall cooperate with HSI in pursuing any such rights.
Enron makes no warranties with respect to Commodity which Enron conveys
to HSI pursuant to the Master Agreement and all warranties with respect
thereto are hereby expressly disclaimed.
10.3. 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:
______________________________
