EXHIBIT 10(u)
CONFIDENTIAL TREATMENT REQUESTED
(*** DENOTES REDACTED TEXT)
1998 EXTENSION AGREEMENT
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THIS AGREEMENT entered into as of the 31/st/ day of December, 1998, by and
among EGL STEEL INC. ("EGL") BETHLEHEM STEEL CORPORATION ("Bethlehem"), MSC
WALBRIDGE COATINGS INC. ("MSCWC"), formerly known as PRE FINISH METALS (EG)
INCORPORATED, and MATERIAL SCIENCES CORPORATION ("MSC");
WITNESSETH:
WHEREAS, EGL, MSCWC and Inland Steel Electrogalvanizing Corporation
("Inland EG") entered into a Partnership Agreement ("Partnership Agreement") in
1984 whereby they created a partnership entitled "WALBRIDGE COATINGS, AN
ILLINOIS PARTNERSHIP" ("Partnership"), the term of which was initially scheduled
to expire on June 30, 1998, but has been extended by separate letter agreements
to December 31, 1998;
WHEREAS, Inland EG has sold its remaining partnership interest to EGL with
the consent of MSCWC, and EGL and MSCWC are in agreement to continue the
Partnership after December 31, 1998 in accordance with the original Partnership
documents and all of the agreements and settlements documented in side letters,
minutes, or other means, agreed to by the parties from 1984 to July 1, 1998
(collectively, the "Definitive Agreements"), with the exceptions set forth
herein.
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WHEREAS, Bethlehem is currently negotiating with a domestic integrated mill
("***") to arrange for the processing by the Partnership of a portion of ***'s
pure zinc and zinc-nickel ("ZnNi") electroplating requirements;
NOW, THEREFORE, in consideration of the premises, recitals and mutual
covenants, undertakings and obligations hereinafter set forth or referred to
herein, EGL, Bethlehem, MSCWC and MSC are hereby mutually covenant and agree as
follows:
1. With the purchase of Inland EG's remaining interest by EGL, EGL and
MSCWC each own 50% of the equity, Financial Interests and Voting Interests of
the Partnership.
2. The Term of the Partnership Agreement shall be extended from January
1, 1999 until December 31, 2001, and shall continue from year to year thereafter
unless one party gives the other party written notice by October 1, 2001 (or by
October 1 of any subsequent year) of its intention to terminate as of the end of
that year (the "Term"). Except as otherwise provided in this Agreement, each of
the Definitive Agreements, including the Sublease, shall be deemed to be
extended for so long as the Term of Partnership is extended, with appropriate
deletions to reflect the retirement of financing as of June 30, 1998. In the
event of termination, Article XV of the Partnership Agreement shall apply except
that all rights and options given to Inland EG are nullified and the partners
shall negotiate in good faith appropriate amendments to such Article XV to
ensure that the operations of the Partnership's facilities may continue without
interruption while the procedures provided for in such Article XV are carried
out and that the Partnership's commitments to Inland Steel Company ("Inland")
under the Tolling Agreement dated as of June 30, 1998 (the "Tolling Agreement"),
between the Partnership and Inland, will be performed.
3. The Management Committee discussed in Article VIII of the Partnership
Agreement is reduced from six persons to four persons with two members being
appointed by each of EGL and MSCWC.
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4. For purposes of this Agreement, production for Inland up to the
amounts of Production Time specified in Section 3.2 of the Tolling Agreement
(the "Option Tons"), the terms of which are incorporated herein, shall be
considered as production for EGL rather than as production for third parties,
except as otherwise provided herein. The difference between the per ton price
the Partnership is entitled to charge Inland pursuant to the Tolling Agreement
($*** per Standard Ton for the period January 1, 1999 through December 31, 1999
and $*** per Standard Ton for the period January 1, 2000 through December 31,
2001, subject to adjustment pursuant to Section 4.2 of the Tolling Agreement)
and the Operator's Fee payable to MSCWC ($*** per Standard Ton for the period
January 1, 1999 through December 31, 2001, subject to adjustment pursuant to
Paragraph 5) will be credited to EGL. To the extent Inland utilizes the
Partnership pursuant to Section 3.3 of the Tolling Agreement for production in
excess of the Option Tons, such excess will be treated as production for third
parties as outlined in Paragraph 7.
5. Except as expressly provided herein, the provisions in the Definitive
Agreements for setting cost standards and periodic standard cost escalation
(e.g. indexing of S, G & A Expenses, other materials, etc.) are hereby deleted
for the Term. During the Term, the following pricing and escalation provisions
shall apply:
A. Bethlehem's Coating Fee and MSCWC's Operator's Fee per Standard Ton
for pure zinc electroplating are hereby set at $*** for the period January 1,
1999 through December 31, 2000 and $*** for the period January 1, 2001 through
December 31, 2001. Such fees will be adjusted only for changes in the cost of
zinc and electricity since July 1, 1998, under the same procedure provided for
Inland under the Tolling Agreement.
B. Bethlehem's Coating Fee and MSCWC's Operator's Fee per Standard Ton
for ZnNi electroplating are hereby set at $*** for the period January 1, 1999
through December 31, 2000 and $*** for the period January 1, 2001 through
December 31, 2001. Such fees will be adjusted only for changes in the cost of
zinc, nickel and electricity since July 1, 1998, under the same
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procedure provided for Inland under the Tolling Agreement. Billing procedures
for transition time and other ZnNi related issues shall be unchanged from the
Definitive Agreements. Other items such as special packaging supplies currently
paid directly by Bethlehem shall continue being paid by Bethlehem.
C. In addition, Bethlehem will pay each month, commencing in February,
1999 and ending in January, 2002, an amount equal to a portion of the
Partnership's estimated fixed costs for real estate taxes, personal property
taxes, insurance, rent and fixed electricity (the "Allocated Fixed Costs"), but
excluding S, G & A Expenses and Fixed Labor Costs (including fringe benefits for
the fixed labor), during the immediately preceding month. Total Allocated Fixed
Costs are currently estimated to be approximately $*** million per year. The
portion of the Allocated Fixed Costs to be paid by Bethlehem each month shall
equal:
One-twelfth (1/12) of the estimated total Allocated Fixed Costs
of the Partnership;
. less an amount equal to the product of $*** times the total
number of Standard Tons of products produced by the Partnership for
Inland and its subsidiaries; provided, however, that the amount
specified shall be limited to the amount which when divided by one-
twelfth (1/12) of the estimated total Allocated Fixed Costs results
in the total percentage of Production Time to which Inland is
entitled under the Tolling Agreement for the immediately preceding
month;
. less only with respect to each month from February, 2000 to
January, 2001, both inclusive, an amount equal to one-twelfth
(1/12) of the estimated total Allocated Fixed Costs times *** (***
/ ***);
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. less only with respect to each month from February, 2001 to
January, 2002, both inclusive, an amount equal to the product of
one-twelfth (1/12) of the estimated total Allocated Fixed Costs
times *** (*** / ***);
Any payments with respect to Allocated Fixed Costs by *** will be
negotiated separately by Bethlehem and *** and paid to Bethlehem. MSCWC
will forward to Bethlehem a copy of each invoice or other statement for
Allocated Fixed Costs within 15 days after MSCWC's receipt thereof. Within
90 days after the end of each Fiscal Year, MSCWC shall reconcile the
estimated total annual Allocated Fixed Costs used to calculate Bethlehem's
payments for such Fiscal Year under the third sentence of this paragraph to
the actual Allocated Fixed Costs incurred by the Partnership during such
Fiscal Year and give credit to Bethlehem for any excess of the estimated
total annual amount over the actual amount or charge Bethlehem for any
excess of the actual amount over the estimated total annual amount.
D. Bethlehem's Coating Fee and MSCWC's Operator's Fee during the Term are
hereby set at $*** per ton for base slitting services, $*** per ton for critical
inspection processing, and $*** per ton for VW-type packaging. The current
billing agreement for additional quality inspections (Exhibit I hereto) and the
Barnes Agreement (Exhibit II hereto) will remain in effect during the Term.
E. EGL and MSCWC also agree to pursue (through jointly established teams)
cost reduction in the areas of purchasing and logistics. The benefits of any
cost reductions achieved will be divided on a fifty-fifty basis between EGL and
MSCWC.
F. Any cost reductions realized due to ***'s entry into the Partnership
shall be shared by MSCWC receiving ten percent (10%) of the savings and EGL and
*** dividing the remainder based on their line time ownership.
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6. Any slitting revenue received from Inland shall be for MSCWC's
account. Any cancellation charge paid by Inland shall be for EGL's account. The
Partnership shall invoice Inland for the Option Tons and, upon payment of such
invoice, shall credit EGL with the difference described in the second sentence
of Paragraph 4 above. MSCWC shall invoice Inland for slitting charges and
cancellation charges and credit MSCWC's and EGL's account as appropriate. The
credit risk for Inland's Option Tons shall not be borne by the Partnership, but
rather by MSCWC (for slitting revenue owed) or by EGL (for coating revenue on
Option Tons and cancellation charges). With respect to production for Inland in
excess of the Option Tons and production for other third party accounts, the
Partnership shall bear the credit risk.
7. The allocation of the Partnership's profit from sales to third parties
during the Term (including sales to Inland in excess of the Option Tons and
sales to MSC and its subsidiaries pursuant to Paragraph 11) shall be fifty/fifty
sharing (as between MSCWC and EGL); provided, however, that EGL shall not be
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entitled to share in any such profits during any calendar year until the sum of:
(a) the amount of profits retained by MSCWC for sales of
electroplating services to third parties during such year; and
(b) $*** for each ton on which MSCWC performs base slitting services,
$*** for each ton on which MSCWC performs critical inspection
services, and $*** each for each ton on which MSCWC applies VW-type
packaging during such year; and
(c) the amount of profits retained by MSCWC on production of MSC
Laminates and Composites products or non-non-automotive products
pursuant to Paragraph 11 during such year; and
(d) the amount of profits retained by MSCWC for applying organic
coatings to pure zinc or ZnNi products for *** during such year,
provided that solely for
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purposes of this Paragraph 7(d), the amount of such profit on each ton
of such product shall be deemed to be ***% of the Operators Fees for
organic coatings determined in accordance with Paragraph 11D.
shall exceed $*** per Standard Ton produced for EGL or *** on a cumulative basis
from January 1, 1999 (the "Make Whole Provision"). The purpose of the Make Whole
Provision is to provide MSCWC an opportunity to recover the reductions in its
Operator's Fees provided for in this Agreement in comparison to its Operator's
Fees for the Fiscal Year ended February 28, 1998. The Management Committee shall
prescribe guidelines for the terms, including pricing, under which the
Partnership will conduct coating services for third parties (other than certain
sales to Inland governed by the Tolling Agreement and certain sales to MSC and
its subsidiaries governed by Paragraph 11); provided, however, that MSCWC's
Operator's Fees for (a) electroplating pure zinc for third parties (other than
with respect to such sales to Inland or MSC and its subsidiaries) shall be $***
per Standard Ton, subject to adjustment only for certain changes in the cost of
zinc and electricity since July 1, 1998 under the same procedure provided for
Inland under the Tolling Agreement and (b) electroplating ZnNi for third parties
(other than with respect to such sales to Inland or MSC and its subsidiaries)
shall be $*** per Standard Ton, subject to adjustment only for certain changes
in the cost of zinc, nickel and electricity since July 1, 1998 under the same
procedure provided for Inland under the Tolling Agreement. For purposes of
clause (c) of this Paragraph 7, the Partnership's "profits" on sales to MSC and
its subsidiaries during the Term shall refer to the difference between the
coating fee and the Operator's Fee applicable to such sale provided for in
Paragraph 11. The last sentence of Section 10.4 of the Partnership Agreement,
which provides for a ***% commission for procuring sales of coating services for
third parties, shall be deleted for the Term.
8. Article 7.3(g) and Article 12.2 of the Partnership Agreement are
amended to provide that as long as the Partnership's current capital budget has
been approved by the Management
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Committee, MSCWC's authority as the Operator for capital projects shall be
increased from $5,000 to $25,000.
9. Except as expressly provided herein, MSCWC shall be responsible for or
keep the benefits from any variations in the Partnership's actual costs from the
Standard Costs for the Term of this Agreement; provided, however; that MSCWC
shall continue to report the Partnership's actual costs for zinc, nickel and
electricity to Bethlehem on a periodic basis. Other cost data will be supplied
to Bethlehem as reasonably requested for the purpose of supporting the parties'
efforts under Paragraph 5E. Any savings from extraordinary capital expenditures
will be negotiated at the time that the capital expenditure is approved.
10. The excess capacity surcharge of $*** per Standard Ton in excess of
the design capacity of *** Standard Tons per year provided for in the 1988
Expansion Proposal is hereby deleted for the Term.
11. Article 3.2 of the Coating Agreement between Bethlehem and the
Partnership is hereby amended to provide that during the Term, Bethlehem will be
entitled to all of the available Production Time, subject to fulfilling the
Partnership's obligations to Inland under the Tolling Agreement and any
obligations entered into with ***; provided, however, that in order to develop
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new product opportunities, MSC and its subsidiaries shall be entitled priority
to Production Time equal to that of Bethlehem (or ***) for 10,000 Standard Tons
in calendar 2000 and 20,000 Standard Tons in calendar 2001 for the production of
MSC Laminate and Composite products or non-automotive products, with a
preference toward using organic coatings over EG or ZnNi coatings (the "MSC
Priority Tons"). The following provisions shall apply to the Partnership's
production for MSC and its subsidiaries:
A. MSC and its subsidiaries shall have the right to own the substrate
used in the production of these products, provided, however, that Bethlehem, ***
(if *** shall then be admitted as a partner of the Partnership), or both
Bethlehem and *** pro rata in accordance with
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their respective rights to Production Time (or as they shall otherwise agree)
shall have the right to quote on selling such substrate to MSC and to match the
last offer received by MSC for such substrate based on total economics, service
and quality.
B. The Partnership shall charge MSC and its subsidiaries a coating fee
for electroplating pure zinc of $*** per Standard Ton in the case of MSC
Laminates and Composites products and $*** per Standard Ton in the case of non-
automotive products, subject in each case to adjustment only for certain changes
in the cost of zinc and electricity since July 1, 1998 under the same procedure
provided for Inland under the Tolling Agreement. Such coating fees for
electroplating ZnNi shall be $*** and $***, respectively, per Standard Ton,
subject in each case to adjustment only for certain changes in the cost of zinc,
nickel and electricity since July 1, 1998 under the same procedure provided for
Inland under the Tolling Agreement. Sales to MSC and its subsidiaries pursuant
to this Paragraph 11 shall be treated as sales to third parties for the purposes
of the Make Whole Provision.
C. The Partnership shall pay MSCWC an Operator's Fee for electroplating
pure zinc of $*** per Standard Ton for both MSC Laminates and Composites
products and non-automotive products, subject to adjustment only for certain
changes in the cost of zinc and electricity since July 1, 1998 under the same
procedure provided for Inland under the Tolling Agreement. Such Operator's Fee
for electroplating ZnNi shall be $*** per Standard Ton, subject to adjustment
only for certain changes in the cost of zinc, nickel and electricity since July
1, 1998 under the same procedure provided for Inland under the Tolling
Agreement.
D. The Operator's Fees for organic coatings shall be determined by
negotiations between Bethlehem and MSCWC to yield a ***% profit to the Operator;
the coating fees for such coatings shall be the same as such Operator's Fees
regardless of whether such coatings are for Bethlehem, *** or MSC and its
subsidiaries.
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E. On the same terms, MSC and its subsidiaries shall also be entitled to
solicit sales of MSC Laminates and Composites products and non-automotive
products in excess of the MSC Priority Tons and, on a toll-coating basis, sales
of other products from outside parties, in each case subject to the availability
of Production Time; such sales shall have priority to Production Time equal to
that of Bethlehem (or ***) (a) to the extent that Bethlehem (or ***) notifies
MSCWC that Production Time will be available for sales to third parties in
accordance with Section 5.1 of the applicable Coating Agreement (as amended
hereby) and (b) in accordance with the last sentence of Paragraph 13.
12. Bethlehem and EGL may negotiate an agreement to sell a portion of the
equity in the Partnership and the rights to Production Time to ***; provided
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that the terms of such sale shall be subject to the approval of MSCWC, which
approval shall not be unreasonably withheld, except that any such agreement
shall provide that (a) *** will be entitled to the same prices charged by the
Partnership to Bethlehem for all services and (b) *** shall pay for any and all
information systems modifications and any other extraordinary expenses for
services that it requires. Nothing in this Paragraph 12 shall constitute an
amendment or waiver of MSCWC's rights under Section 13.3 of the Partnership
Agreement.
13. Section 5.1 of the Coating Agreement between the Partnership and
Bethlehem is hereby amended to require (and any Coating Agreement between the
Partnership and *** shall require) Bethlehem (or ***) to give MSCWC a binding
notice on the 15/th/ day of each month of the extent to which Production Time
will be available for sales to third parties during the third succeeding month
in order to give the Partnership a better opportunity to make sales to third
parties. To the extent that Production Time is committed for sales to third
parties on a long-term basis (greater than six months) with the consent of all
Partners, the Production Time required for such sales shall have the same
priority as the rights to Production Time of Bethlehem (or ***).
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14. The carestone surcharge ($*** per ton) in Paragraph 1 of the FY 1992
Settlement Agreement is hereby deleted.
15. The paragraph of the 1988 Walbridge Expansion Proposal regarding
extended shutdown is hereby deleted. After June 30, 1998, MSCWC and EGL will
share the actual extended shutdown expense on a fifty/fifty basis. MSCWC will
provide a reasonable estimate of the extended shutdown requirements, time
schedule and costs 30 days in advance of the shutdown for EGL's review and
approval, which approval shall not be unreasonably withheld. EGL will have ten
days to respond to MSCWC's estimate or approval will be deemed granted. Any
significant modifications to the approved estimate will be discussed with EGL
personnel.
16. The Long-Term Sales Agreement provision in the FY 1992 Settlement is
hereby deleted.
17. The Partnership's obligation to pay rent under the Sublease during the
Term shall continue to be a pass through of the lease cost under the CPA Lease
between MSC Pre Finish Metals Inc. ("MSCPFM") and Corporate Property
Associates/Corporate Property Associates 2 ("CPA/CPA2"). In order to evidence
the extension of the Sublease under Paragraph 2 above for the period from
January 1, 1999 through December 31, 2001, MSCPFM and the Partnership shall
execute a separate letter agreement in the form attached as Exhibit III, a copy
of which shall be delivered to CPA/CPA2.
18. Capitalized terms that are not defined in this Agreement are used
herein as defined in the Definitive Agreements.
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EGL STEEL INC.
By:_/S/___________________________
BETHLEHEM STEEL CORPORATION
By:_/S/___________________________
MSC WALBRIDGE COATINGS INC.
By:_/S/___________________________
MSC PRE FINISH METALS INC.
By:_/S/___________________________
MATERIAL SCIENCES CORPORATION
By:_/S/___________________________
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Exhibits Omitted
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