Confidential Treatment
EXHIBIT 10.16
PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECRETARY OF THE COMMISSION PURSUANT TO REGISTRANT'S APPLICATION OBJECTING TO
DISCLOSURE AND REQUESTING CONFIDENTIAL TREATMENT UNDER RULE 406. THE OMITTED
PORTIONS HAVE BEEN MARKED WITH BRACKETS.
CONTRACT OF SALE
----------------
This Contract of Sale is entered as of February 28th, 1992 between Xxxxx
----
Polymers, Inc. a Texas corporation ("Seller") and Wincup Holdings, Inc., a
Delaware corporation ("Buyer").
Subject to the terms and conditions hereinafter provided, and intending to
be legally bound, the parties hereto agree as follows:
1. Product.
-------
Seller shall sell and Buyer shall purchase expanded polystyrene T-grade
beads conforming to the specifications set forth in Exhibit A (referred to
herein as "Product").
2. Quantity; Orders.
----------------
Seller shall sell and Buyer shall purchase (1) all of its requirements up
to 40 million lbs. annually; and (2) no less than 75% of its requirements in
excess of 40 million lbs. annually, for the Product solely for use in the
manufacture of foam cups and containers by Buyer. Upon execution hereof, Buyer
shall provide Seller with a forecast of its anticipated requirements for the
next twelve month period and at the same time Buyer shall place a firm order
with Seller for its requirements for the first month of the Contract year. The
first Contract year shall be the twelve calendar months beginning after
execution hereof. Buyer shall thereafter continue to place its orders for its
monthly requirements thirty days prior to the beginning of the order period and
Buyer shall provide Seller with updated forecasts on a quarterly basis
projecting Buyer's requirements for Product for the twelve month period
beginning ninety days from the date of
the delivery of a forecast. Buyer's monthly order shall be for a quantity which
is equal to 1/12 of its most recent twelve month forecast plus or minus ten
percent.
3. Price.
-----
The price for the Product shall be the average of the two Gulf Coast
Contract prices per pound for styrene monomer as shown in the most recent
edition published prior to shipment of the XxXxxx Benzene and Derivatives
Newsletter, plus (i) [ ]/lb (the non-monomer element of price) for sales during
Year 1 of this Agreement; (ii) [ ]/lb for sales during Year 2 of this
Agreement; and (iii) [ ]/lb. for sales during Year 3 and [ ]/lb. for Years 4
and 5. The price shall be F.O.B. Fort Worth, Texas loaded on trucks by Seller.
The non-monomer element of the price shall be subject to adjustment (rounded to
the nearest one hundredth of a cent) up or down on each Contract Anniversary
Date beginning two years after the date of this Agreement. The first such
adjustment shall be proportional to the change in the Producers Price Index for
Finished Goods since the date of this Agreement; subsequent adjustments shall
be proportional to the change in the aforesaid Index since the previous
Contract Anniversary Date. Payment terms shall be net [ ] days from date of
invoice during the first [ ] years of the Contract, [ ] days for the next
[ ] years and [ ] days thereafter. Availability of these extended terms is
conditioned upon Buyer's prompt remittances in accordance therewith, however up
to five days grace shall be permitted on not more than ten invoices in any
twelve calendar month period.
2
4. Return of Gaylords.
------------------
Buyer acknowledges that the price for Product does not include the cost of
gaylords. Buyer agrees, at its own cost and expense to return all empty gaylords
to Seller's facility at Fort Worth. Failure of Buyer to observe this provision
shall entitle Seller to liquidated damages of $10.00/xxxxxxx, but shall not
entitle Seller to any additional remedies hereunder. The cost of gaylords which
are irreparably damaged in transit shall be shared equally between the parties.
Seller shall invoice Buyer for its share of the cost of such gaylords.
5. Term.
----
The term of this Contract shall begin on February 28th, 1992 ("Contract
----
Anniversary Date") and continue for an initial period of five years and from
year to year thereafter unless or until terminated by either party giving the
other party at least ninety days prior written notice of its intention to
terminate on a Contract Anniversary Date.
6. Taxes.
-----
Buyer shall pay Seller, in addition to the price provided herein, an amount
equal to any tax or other charge (unless measured by net income) assessed on
Seller related to sales made pursuant to this Contract. Any personal property
taxes assessed upon the value of the Product shall be paid by the party having
title thereto at the time such taxes are assessed.
7. Title and Risk of Loss.
----------------------
Title to and risk of loss shall pass from Seller to Buyer at Seller's
point of shipment as Product is delivered to the carrier.
3
8. Limited Warranties.
------------------
(a) Seller warrants that at the time of delivery, the Product will
meet the specifications set forth in Exhibit A.
(b) SELLER DOES NOT MAKE AND EXPRESSLY DISCLAIMS AND BUYER EXPRESSLY
----------------------------------------------------------------
WAIVES ANY OTHER WARRANTIES WHATSOEVER INCLUDING (WITHOUT LIMITATION) ANY
-------------------------------------------------------------------------
WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, REGARDLESS
-----------------------------------------------------------------------------
WHETHER ORAL OR WRITTEN, EXPRESSED OR IMPLIED OR ALLEGEDLY ARISING FROM ANY
---------------------------------------------------------------------------
USAGE OF ANY TRADE OR COURSE OF DEALING.
---------------------------------------
9. Product Inspection and Claims.
-----------------------------
(a) Buyer shall examine the Product promptly upon receipt of each
shipment and notify Seller of any off-specification Product, shortfall in
delivery of Product. Seller will not be responsible for any variation in quality
or quantity unless Buyer gives Seller written notice within thirty days of
receipt. Buyer's failure to give such notice of any nonconformity shall
constitute an unqualified acceptance of the Product and a waiver by Buyer of
all claims with respect thereto.
(b) Seller's total liability for any claim of any nature shall not
exceed the purchase price of the delivery lot of the Product in respect of which
such claim is made, and the costs of freight incurred by Buyer. At Seller's
request, Buyer shall return any delivery lot to Seller which Buyer claims is
defective or not meeting the quantity requirement. Seller shall reimburse Buyer
for cost of freight to return such Product to Seller. In no event shall
4
Seller be liable for any lost profits or any indirect, consequential,
special, incidental, contingent or punitive damages incurred by Buyer.
10. Contingencies.
-------------
(a) Neither party shall be in breach of its obligations hereunder to
the extent that performance is prevented or delayed as a result of any of
the following contingencies:
(i) any cause beyond the reasonable control of the party
concerned;
(ii) labor disturbance, whether involving the employees of the
party concerned or otherwise, and whether or not the disturbance could
be settled by acceding to the demands of a labor group;
(iii) compliance with a request or order of any government or
governmental department or agency (including but not limited to EPA,
OSHA, etc.); or
(iv) shortage in raw material, transportation, power
(b) In the event that Seller experiences an unanticipated disruption
in production which temporarily reduces Seller's manufacturing capacity, Seller
shall use all reasonable efforts to minimize any disruption or inconvenience to
Buyer's business. In the event that Seller's reduced capacity results in a
shortage in Seller's supply of Product, Seller shall allocate all remaining
quantities of Product in proportion to the Buyer's purchase during the previous
year.
5
(c) Quantities not purchased or sold due to the provisions of this
Section may be purchased or sold elsewhere or made up later if reasonably
possible and by agreement of the parties.
(d) Nothing in this Section shall excuse Buyer from its obligations
to make payments when due.
11. Product Hazards.
---------------
Buyer acknowledges receipt of Seller's Material Safety Data Sheets for
Product and is aware of the hazards or risks in handling or using Product. Buyer
shall fully inform its employees, agents, contractors and customers who handle,
use, buy or may be exposed to any Product of such Product's hazards or risks.
Buyer shall provide copies of Seller's Material Safety Data Sheets and any
updates furnished by Seller to all such employees, agents, contractors and
customers; and Buyers shall conspicuously post the Material Safety Data Sheets
throughout the area of Buyer's plants where exposure to any Product may occur,
provided however, that Seller's sole remedy for Buyer's failure to perform its
obligations hereunder shall be recovery of any costs, losses, expenses or
damages suffered by Seller. Under no circumstances will Seller be permitted to
withhold or terminate shipments of Product solely because of Buyer's breach of
this paragraph.
12. Default.
-------
Except as otherwise specifically provided in this Contract, if either party
fails to perform any of the terms of this Contract, the other party may defer
shipments or receipt of deliveries until such default is cured by the defaulting
party
6
or, at its option, may treat such default as a breach of the entire Contract
and, if such default is not cured within thirty days of the giving of notice
thereof to the defaulting party, immediately terminate this Contract, provided,
however, that such termination shall not relieve Buyer from payment for all
acceptable Product delivered prior to such termination and provided, further,
that if Buyer is terminating, before exercising the option, it shall first make
payment for all acceptable Product theretofore delivered.
13. Notices.
-------
All notices, requests, demands and other communications required or
permitted hereunder shall be in writing and shall be deemed to have been fully
given if delivered by hand or mailed, certified or registered mail with postage
prepaid:
(a) If to Seller:
Xxxxx Paper Company
Xxxxx Xxxxx
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000
Attention: Xxxxx X. Xxxxxx
Senior Vice President
with copies to:
Xxxxx X. Xxxxxxx, Esquire
Vice President and
General Counsel
(b) If to Purchaser:
Wincup Holdings, Inc.
Chesterbrook Corporate Center
000 Xxxxxxxxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxx, Xxxxxxxxxxxx 00000
Attention: Xx. Xxxxxxx X. Xxxxxxx
President
7
with copies to:
Xxxxx Xxxxxx & Heckscher
0000 Xxx Xxxxxxx Xxxxx
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxx, Xx., Esquire
or to such other Person or address as the Seller or Purchaser
shall furnish in writing.
14. General.
-------
(a) This Contract shall be binding upon and inure to the benefit of
the successors and assigns of Buyer and the successors and assigns of Seller,
but shall not be assigned by either party without the prior written consent of
the other party which consent shall not be unreasonably withheld, provided, that
--------
this Contract shall be assignable to any party which purchases or succeeds to
substantially all of the business or assets of the Assignor.
(b) This Contract is to be construed under the laws of the State of
Pennsylvania, without giving effect to its conflict or choice of law rules.
(c) Failure of either party to require performance of any provisions
of this Contract shall not affect either party's right to require full
performance thereof at any time thereafter, and the waiver by either party of a
breach of any provision hereof shall not constitute a waiver of a similar breach
in the future or of any other breach or nullify the effectiveness of such
provision.
(d) This Contract and any exhibits hereinafter set forth contain the
entire agreement between the parties hereto on the subject matter hereof, and
there are no oral
8
representations, stipulations, warranties, agreements, or understandings
with respect to such subject matter that are not fully expressed herein.
Neither this Contract nor its execution has been induced by any
representation, stipulation, warranty, agreement, or understanding of any
kind other than those herein expressed. No amendment, addition to,
modification, or waiver of all or any part of this Contract shall be of any
force or effect unless in writing and signed by Seller and Buyer.
(e) If the provisions of this Contract and the provisions of any
purchase order or order acknowledgement written in connection with this
Contract conflict, then the provisions of this Contract shall prevail.
IN WITNESS WHEREOF, Seller and Buyer have executed this Contract as of the
date first written above.
XXXXX POLYMERS, INC. WINCUP HOLDINGS, INC.
By: /s/ Xxxxxx X. XxXxxx By: [SIGNATURE APPEARS HERE]
--------------------------- ---------------------------
Xxxxxx X. XxXxxx
Title: Vice President Title: President
--------------------------- ---------------------------
9
EXHIBIT A
---------
Nominal Max/Min
------- -------
Hydrocarbon 5.65% 5.95/5.30
Residual Volatiles 750 PPM 2200 Max
Mol. Wt. 305,000 350,000/290,000
Lumping 1% 1% Max
Pitting @40 PSI 1.5% 2.5 Max
Solution Test (Average) 6.0 Minutes 10/3.0 Minutes
Gloss 38 30 Min
Brittleness @38 PSI 1.0 2.0 Max
Seive Analysis
On 35 On 40 On 45 On 50 Pan
----- ----- ----- ----- ---
Nominal Range 0.1% -2% 45% max 55% max 25% max 0.1-3
Notes: No more than 2% on 35 mesh.
No more than 5% on Pan.
At least 97% of all beads to be smaller than 35 mesh.
Minimum of 66% on 40 and 45 mesh.
Up to 5% of Product by weight shipped to Buyer in any one calendar
quarter may have over 25.0% and up to 29.0%/1/ of beads on the 50
mesh.
Quality testing to be conducted per Xxxxx Polymers Internal Product Quality
Control Specifications an Standard Test Methods, as such may be changed from
time to time.
10
AMENDMENT
WHEREAS, Xxxxx Polymers, Inc., a Texas corporation ("Seller") and Wincup
Holdings, Inc., a Delaware corporation ("Buyer") entered into a certain Contract
of Sale, dated February 28, 1992, pursuant to which Seller agreed to sell and
Buyer agreed to buy certain quantities of expanded polystyrene T-grade beads
(hereinafter "Contract");
AND WHEREAS the parties, in consideration of good and valuable
consideration, the receipt of which is hereby acknowledged, wish to amend the
Contract;
NOW THEREFORE, the parties agree as follows:
1. The phrase "five years" contained in Paragraph 5 of the Contract is
hereby deleted, and the phrase "eight years" is hereby inserted.
2. Item (iii) of Paragraph 3 of the Contract is deleted, and the
following provision is inserted in its stead:
(iii) [ ]/lb for sales during Year 3;
(iv) [ ]/lb for sales during Year 4; and
(v) [ ]/lb, adjusted as described below for
sales during Years 5, 6, 7 and 8.
3. The remainder of Paragraph 3 following Item (iii) is hereby deleted,
and the following provisions are inserted in their stead:
The price shall be F.O.B. Fort Worth, Texas, loaded on trucks by Seller.
The non-monomer element of the price shall be subject to adjustment
(rounded to the nearest one hundreth of a cent) up or down on each Contract
Anniversary Date beginning with sales made in Year 5 of this Agreement. The
first such adjustment shall be proportional to the changes in the
Producers' Price Index for Finished Goods since February 28, 1994.
During Years [ ], payment terms shall be net [ ] days from the date
of invoice.
During Year [ ], payment terms shall initially be net [ ] days from the
date of invoice, provided however, that on the first day of May, July,
September, November, [ ] and January, [ ], following the commencement of
Year [ ], the payment term shall be reduced by [ ] days.
During Year [ ], payment terms shall be net [ ] days from the date of
invoice.
During Year [ ], payment terms shall be net [ ] days from the date of
invoice.
During Year [ ] and thereafter, the payment terms shall be determined by
prevailing terms in the industry, but in no event shall payment terms
exceed [ ] days.
Availability of these extended terms is conditioned upon Buyer's prompt
remittances in accordance therewith, however, up to five days grace shall
be permitted on not more than ten invoices in any twelve calendar month
period.
4. The following paragraph shall be added at the end of paragraph 3 of the
Contract:
As used in this Agreement, the following terms refer to the time periods
indicated:
"Year 1" shall mean the period from March 1, 1992 up to and
including February 28, 1993;
"Year 2" shall mean the period from March 1, 1993 up to and
including February 28, 1994;
"Year 3" shall mean the period from March 1, 1994 up to and
including February 28, 1995;
"Year 4" shall mean the period from March 1, 1995 up to and
including February 29, 1996.
"Year 5" shall mean the period from March 1, 1996 up to and
including February 28, 1997.
"Year 6" shall mean the period from March 1, 1997 up to and
including February 28, 1998.
"Year 7" shall mean the period from March 1, 1998 up to and
including February 28, 1999.
"Year 8" shall mean the period from March 1, 1999 up to and
including February 28, 2000.
5. The following provision is hereby added as Subpart (f) of Paragraph 14:
(f) During the term of this Agreement and any extensions hereof, it is
contemplated that each party hereto may obtain from the other party, or
have access to, certain information that the other party regards as
proprietary and confidential (such information, as more particularly
defined below, "Confidential Information"). Each party
2
hereto agrees that, during the term of this Agreement and any
extensions hereof, and for a period of five years thereafter, it
shall keep the Confidential Information of the other party that
it obtains or has access to confidential, and shall not disclose
any such Confidential Information to any third party except to
such of its directors, officers, employees and legal, accounting
and financial advisors that may require access to the
Confidential Information for purpose of performing the
obligations of such party under this Agreement and otherwise
operating such other party's business.
As used in this Agreement, the term "Confidential Information"
shall mean any and all pricing, terms, quantities and other
provisions of this Agreement, as well as all financial,
technical, commercial, engineering or other information
concerning the business affairs of any party hereto (the
"Disclosing Party") that may be provided to or obtained by the
other party (the "Receiving Party") hereto. The term
"Confidential Information" with respect to any Disclosing Party
does not include information that: (a) was or is made available
to the public without restriction by Disclosing Party or is
otherwise generally available to the public through no fault of
the Receiving Party; (b) was previously known to or independently
developed or derived by the Receiving Party; or (c) is disclosed
to the Receiving Party a non-confidential basis by a third party
who has the right to disclose such information.
The parties acknowledge that money damages may be an inadequate
remedy for breach of this provision and agree that this provision
may be enforced at law or in equity as the proprietor of such
Confidential Information elects.
6. Payments for all purchases made hereunder or which are due and owing as
of the date hereof shall be made in accordance with a payment Schedule, included
here as Exhibit A. Buyer shall not be deemed to be in default in performance of
its obligations under Section 3 of the Contract so long as payments are made in
accordance with Exhibit A.
7. This Amendment shall be effective on February 28, 1994 and is
specifically conditioned upon the following:
i) the approval of Continental Bank, pursuant to its rights under the
Attornment Agreement executed with Xxxxx Paper Company on February 28,
1992;
ii) Wincup's receipt of One Million, Five Hundred Thousand Dollars
($1,500,000) from Continental Bank in the form of a line of credit, and
Benchmark Holdings, Inc.'s receipt of One Million, One Hundred Seventy-Four
Thousand Dollars
3
($1,174,000) of additional availability under a Letter of Credit;
iii) execution of a Guaranty Agreement by Benchmark Corporation of
Delaware guaranteeing performance of the Contract in the form attached
hereto as Exhibit B;
iv) certain adjustments in a Secured Note held by Xxxxx Paper
Company, in the form contained in Exhibit C; and
v) the grant of certain warrants for the shares of Benchmark
Corporation of Delaware in the form contained on Exhibit D.
vi) the Closing of the sale of Xxxxx Polymers, Inc. and Xxxxx
Polymers, Ltd. by March 1, 1994, unless this condition is waived in writing
by Seller.
8. Unless specifically changed by this Amendment, all other terms and
conditions of the Contract shall remain unchanged.
XXXXX POLYMERS, INC.
By: [SIGNATURE APPEARS HERE]
-------------------------------
Title: Vice President
----------------------------
Date: 2/25/94
-----------------------------
WINCUP HOLDINGS, INC.
By: [SIGNATURE APPEARS HERE]
-------------------------------
Title: President
----------------------------
Date: 2/25/94
-----------------------------
4
Exhibit A
XXXXX POLYMERS INC.
0000 X XXXXXXXX XXX
XXXX XXXXX, XX.
00000
VOUCHER VENDOR'S P.O. INVOICE FED EX VOUCHER TOTAL DAYS
NUMBER INVOICE# NUMBER DATE DATE AMOUNT PAYMENT 0/S
----------------------------------------------------------------------------------------------------------------------
910797 910797 106605 10/18/93 2/16/94 (9,045.00) 121
388096 910816 167435 10/18/93 2/16/94 21,105.00 121
388665 910822 167437 10/21/93 2/16/94 20,370.00 118
388640 910829 610201 10/21/93 2/16/94 20,370.00 118
388270 910832 1508994 10/21/93 2/16/94 15,520.00 118
389587 910833 219770 10/21/93 2/16/94 20,370.00 118
389503 910834 106609 10/21/93 2/16/94 15,520.00 118
388269 910840 1508905 10/21/93 2/16/94 15,520.00 118
388638 910841 53918 10/21/93 2/16/94 20,370.00 118
389588 910843 219769 10/21/93 2/16/94 20,370.00 160,470.00 118
388431 910845 53918 10/22/93 2/18/94 21,105.00 119
388416 910846 1508995 10/22/93 2/18/94 15,520.00 119
388436 910847 167438 10/22/93 2/18/94 20,370.00 119
388633 910855 220133 10/26/93 2/18/94 20,370.00 115
388634 910857 53918 10/26/93 2/18/94 20,370.00 115
388636 910859 167533 10/26/93 2/18/94 20,370.00 115
388635 910860 106614 10/26/93 2/18/94 15,520.00 115
388783 910870 167534 10/27/93 2/18/94 20,370.00 153,995.00 114
389580 910871 220135 10/27/93 2/22/94 20,370.00 118
388780 910872 610224 10/27/93 2/22/94 20,370.00 118
388779 910876 53916 10/27/93 2/22/94 20,370.00 118
388778 910877 106614 10/27/93 2/22/94 15,520.00 118
388750 910879 220134 10/27/93 2/22/94 20,370.00 118
389021 910683 610254 10/28/93 2/22/94 20,370.00 117
389581 910887 220136 10/28/93 2/22/94 20,370.00 117
389502 910891 106615 10/29/93 2/22/94 15,520.00 116
389367 910892 1508996 10/29/93 2/22/94 21,340.00 174,600.00 116
389337 910893 220137 10/29/93 2/25/94 20,370.00 119
389486 910895 167535 10/29/93 2/25/94 20,370.00 119
389493 910896 53918 10/29/93 2/25/94 20,370.00 119
389338 910897 220138 10/29/93 2/25/94 20,370.00 119
389578 910898 220139 10/29/93 2/25/94 20,370.00 119
389501 910899 106615 10/29/93 2/25/94 15,520.00 119
389485 910906 167536 10/29/93 2/25/94 20,370.00 119
389271 910911 53918 11/2/93 2/25/94 20,370.00 115
389270 910912 220140 11/2/93 2/25/94 20,370.00 178,480.00 115
389482 910922 167539 11/3/93 3/1/94 20,321.50 118
389483 910923 167537 11/3/93 3/1/94 20,273.00 118
389506 910925 610255 11/3/93 3/1/94 20,370.00 118
389715 910938 1508997 11/5/93 3/1/94 21,340.00 116
389597 910939 167538 11/5/93 3/1/94 20,370.00 116
389596 910940 610256 11/5/93 3/1/94 20,370.00 116
Page 1
XXXXX POLYMERS INC.
0000 X XXXXXXXX XXX
XXXX XXXXX, XX.
00000
VOUCHER VENDOR'S P.O. INVOICE FED EX VOUCHER TOTAL DAYS
NUMBER INVOICE # NUMBER DATE DATE AMOUNT PAYMENT O/S
------------------------------------------------------------------------------------------------
389595 910943 106622 11/5/93 3/1/94 15,520.00 116
389594 910944 106625 11/5/93 3/1/94 15,520.00 116
389979 910947 1508998 11/8/93 3/1/94 21,291.50 113
389963 910950 220143 11/8/93 3/1/94 20,370.00 113
389978 910951 53918 11/8/93 3/1/94 20,370.00 113
389964 910959 220144 11/9/93 3/1/94 20,370.00 236,486.00 112
389977 910961 167579 11/9/93 3/4/94 20,370.00 115
389980 910966 105630 11/9/93 3/4/94 15,520.00 115
389965 910969 220145 11/9/93 3/4/94 20,370.00 115
390394 910970 53918 11/9/93 3/4/94 20,370.00 115
390426 910974 220146 11/10/93 3/4/94 20,370.00 114
389962 910975 220147 11/10/93 3/4/94 20,370.00 114
390175 910979 1508999 11/11/93 3/4/94 15,520.00 113
390144 910980 106636 11/11/93 3/4/94 15,520.00 113
390173 910981 610303 11/11/93 3/4/94 20,370.00 113
390232 910989 610304 11/12/93 3/4/94 20,370.00 112
390274 910990 106637 11/12/93 3/4/94 15,495.75 112
390273 910991 1509000 11/12/93 3/4/94 21,340.00 112
390233 910992 53918 11/12/93 3/4/94 20,370.00 246,355.75 112
390234 910993 106637 11/12/93 3/8/94 15,520.00 116
390288 910995 220148 11/15/93 3/8/94 20,370.00 113
390287 910998 220149 11/15/93 3/8/94 20,370.00 113
390285 911001 167581 11/15/93 3/8/94 20,370.00 113
390563 911009 610340 11/17/93 3/8/94 20,370.00 111
390579 911013 167582 11/17/93 3/8/94 20,370.00 111
390714 911015 220151 11/17/93 3/8/94 20,370.00 111
390715 911016 220150 11/17/93 3/8/94 20,370.00 111
390549 911019 1509001 11/17/93 3/8/94 21,340.00 111
392206 911026 54020 11/18/93 3/8/94 20,370.00 110
390547 911029 1509004 11/18/93 3/8/94 21,340.00 110
390581 911031 167583 11/18/93 3/8/94 20,370.00 110
390582 911032 167626 11/18/93 3/8/94 20,370.00 261,900.00 110
390548 911033 1509002 11/18/93 3/11/94 15,520.00 113
391006 911036 1509003 11/19/93 3/11/94 15,520.00 112
391131 911037 167580 11/19/93 3/11/94 20,370.00 112
391041 911038 219889 11/19/93 3/11/94 20,370.00 112
391049 911048 219890 11/22/93 3/11/94 20,370.00 109
391107 911050 610341 11/22/93 3/11/94 20,370.00 109
391050 911060 219891 11/22/93 3/11/94 20,321.50 109
391387 911064 219892 11/23/93 3/11/94 20,370.00 108
391461 911065 54020 11/23/93 3/11/94 20,370.00 108
391509 911067 106645 11/23/93 3/11/94 15,520.00 108
Page 2
XXXXX POLYMERS INC.
0000 X XXXXXXXX XXX
XXXX XXXXX, XX.
00000
VOUCHER VENDOR'S P.O. INVOICE FED EX VOUCHER TOTAL DAYS
NUMBER INVOICE # NUMBER DATE DATE AMOUNT PAYMENT O/S
-----------------------------------------------------------------------------------------
391481 911072 219893 11/24/93 3/11/94 20,370.00 107
391510 911073 106649 11/24/93 3/11/94 15,520.00 107
391436 911074 1509005 11/24/93 3/11/94 21,340.00 107
391538 911076 167627 11/24/93 3/11/94 20,370.00 266,701.50 107
391475 911077 610347 11/24/93 3/15/94 20,370.00 111
391463 911079 54020 11/24/93 3/15/94 20,370.00 111
391765 911080 220400 11/24/93 3/15/94 20,370.00 111
391766 911081 220401 11/24/93 3/15/94 20,370.00 111
391474 911082 610348 11/24/93 3/15/94 20,370.00 111
392214 911153 610399 11/28/93 3/15/94 20,370.00 107
391552 911093 1509006 11/30/93 3/15/94 21,340.00 105
391517 911094 167628 11/30/93 3/15/94 20,370.00 105
391521 911095 54020 11/30/93 3/15/94 20,370.00 105
391764 911096 220402 11/30/93 3/15/94 20,370.00 105
391794 911100 610363 12/2/93 3/15/94 20,370.00 103
391797 911103 106652 12/2/93 3/15/94 15,520.00 103
391757 911108 220404 12/2/93 3/15/94 20,370.00 103
391756 911109 220403 12/2/93 3/15/94 20,370.00 281,300.00 103
391799 911113 167630 12/2/93 3/18/94 20,370.00 106
391976 911117 106660 12/3/93 3/18/94 15,520.00 105
391977 911119 1509007 12/3/93 3/18/94 21,340.00 105
391970 911121 167629 12/3/93 3/18/94 20,370.00 105
392047 91130 54020 12/7/93 3/18/94 20,370.00 101
392050 911124 106661 12/7/93 3/18/94 15,520.00 101
392072 911125 1509008 12/7/93 3/18/94 21,340.00 101
392051 911127 167632 12/7/93 3/18/94 20,370.00 101
392043 911134 220431 12/7/93 3/18/94 20,370.00 101
392052 911136 167631 12/7/93 3/18/94 20,370.00 101
392049 911137 106662 12/7/93 3/18/94 15,520.00 101
392048 911141 54020 12/7/93 3/18/94 20,370.00 101
392045 911145 220429 12/7/93 3/18/94 20,370.00 101
392044 911146 220430 12/7/93 3/18/94 20,370.00 101
392046 911148 610364 12/7/93 3/18/94 20,370.00 292,940.00 101
392042 911150 220428 12/7/93 3/22/94 20,370.00 105
392362 911158 220432 12/8/93 3/22/94 20,370.00 104
392731 911159 106668 12/10/93 3/22/94 15,520.00 102
392742 911160 167633 12/10/93 3/22/94 20,370.00 102
392939 911162 220433 12/10/93 3/22/94 20,370.00 102
392782 911164 1509009 12/10/93 3/22/94 21,340.00 102
392781 911165 1509010 12/10/93 3/22/94 15,520.00 102
393100 911173 610400 12/13/93 3/22/94 20,370.00 99
393057 911177 220434 12/13/93 3/22/94 20,370.00 99
Page 3
XXXXX POLYMERS INC.
0000 X XXXXXXXX XXX
XXXX XXXXX, XX.
00000
VOUCHER VENDOR'S P.O. INVOICE FED EX VOUCHER TOTAL DAYS
NUMBER INVOICE# NUMBER DATE DATE AMOUNT PAYMENT O/S
--------------------------------------------------------------------------------
393041 911178 167717 12/13/93 3/22/94 20,370.00 99
393077 911179 54020 12/13/93 3/22/94 20,370.00 99
393056 911182 220435 12/13/93 3/22/94 20,370.00 99
393129 911183 1509011 12/13/93 3/22/94 15,520.00 99
393040 911184 167716 12/13/93 3/22/94 20,370.00 99
393103 911188 106673 12/14/93 3/22/94 15,520.00 98
393055 911189 220436 12/14/93 3/22/94 20,370.00 307,490.00 98
393081 911191 54020 12/14/93 3/25/94 20,370.00 101
393043 911193 167718 12/14/93 3/25/94 20,370.00 101
393102 911201 106677 12/15/93 3/25/94 15,520.00 100
393101 911205 610431 12/15/93 3/25/94 20,370.00 100
393042 911206 167719 12/15/93 3/25/94 20,370.00 100
393059 911207 220437 12/15/93 3/25/94 20,370.00 100
393281 911211 1509157 12/16/93 3/25/94 21,340.00 99
393231 911213 220495 12/16/93 3/25/94 20,370.00 99
393299 911215 167720 12/16/93 3/25/94 20,370.00 99
394056 911219 610432 12/17/93 3/25/94 20,370.00 98
394044 911221 220496 12/17/93 3/25/94 20,370.00 98
394043 911222 220497 12/17/93 3/25/94 20,370.00 98
394711 911228 220498 12/20/93 3/25/94 20,370.00 95
393421 911229 106684 12/20/93 3/25/94 15,520.00 95
393423 911232 167721 12/20/93 3/25/94 20,370.00 95
394712 911233 220499 12/20/93 3/25/94 20,370.00 317,190.00 95
393422 911236 167764 12/20/93 3/29/94 20,370.00 99
394710 911241 220500 12/21/93 3/29/94 20,370.00 98
394381 911242 167722 12/21/93 3/29/94 20,370.00 98
393506 911244 54020 12/21/93 3/29/94 20,370.00 98
394057 911251 610433 12/21/93 3/29/94 20,370.00 98
393952 911253 220501 12/21/93 3/29/94 20,370.00 98
393951 911254 220502 12/21/93 3/29/94 20,370.00 98
393953 911255 220503 12/21/93 3/29/94 20,370.00 98
393756 911257 1509012 12/21/93 3/29/94 15,520.00 98
394074 911259 106687 12/21/93 3/29/94 15,520.00 98
394709 911256 220504 12/22/93 3/29/94 20,370.00 97
394047 911258 54083 12/22/93 3/29/94 20,370.00 97
394075 911262 106689 12/22/93 3/29/94 15,520.00 97
393757 911263 1509158 12/22/93 3/29/94 21,370.00 97
394638 911267 167765 12/28/93 3/29/94 20,370.00 91
394626 911269 106693 12/28/93 3/29/94 15,520.00 307,490.00 91
394585 911270 220505 12/28/93 4/1/94 20,370.00 94
394632 911280 167774 12/28/93 4/1/94 20,370.00 94
394630 911282 1509159 12/28/93 4/1/94 21,340.00 94
Page 4
XXXXX POLYMERS INC.
0000 X XXXXXXXX XXX
XXXX XXXXX, XX.
00000
VOUCHER VENDOR'S P.O INVOICE FED EX VOUCHER TOTAL DAYS
NUMBER INVOICE # NUMBER DATE DATE AMOUNT PAYMENT O/S
--------------------------------------------------------------------------------
394634 911277 167768 12/29/93 4/1/94 20,370.00 93
394602 911281 610473 12/29/93 4/1/94 20,370.00 93
395028 911283 54094 12/29/93 4/1/94 20,370.00 93
395045 911284 106698 12/29/93 4/1/94 15,520.00 93
394684 911288 610474 1/3/94 4/1/94 20,370.00 88
394685 911292 1509160 1/3/94 4/1/94 21,340.00 88
394683 911296 54083 1/3/94 4/1/94 20,370.00 88
394787 911300 167769 1/4/94 4/1/94 20,370.00 87
394798 911301 220610 1/4/94 4/1/94 20,370.00 87
394962 911302 54083 1/4/94 4/1/94 20,370.00 87
394771 911303 610475 1/4/94 4/1/94 20,370.00 87
394797 911306 220609 1/4/94 4/1/94 20,370.00 302,640.00 87
--------------------------
3,488,038.25 3,488,038.25
==========================
Page 5
Exhibit B
PAYMENTS HEREUNDER ARE SUBORDINATED TO THE CLAIMS OF CONTINENTAL BANK N.A., A
NATIONAL BANKING ASSOCIATION WITH A PLACE OF BUSINESS AT 000 XXXXX XXXXXXX
XXXXXX, XXXXXXX, XXXXXXXX, PURSUANT TO THE TERMS OF AN INTERCREDITOR AGREEMENT
ENTERED INTO BETWEEN XXXXX PAPER COMPANY, CONTINENTAL BANK AND WINCUP HOLDINGS,
INC. ON FEBRUARY 28, 1992.
GUARANTY
This Guaranty ("Guaranty") is made as of this 28th day of February 1994, by
and between Xxxxx Polymers, Inc., a Texas corporation ("Polymers") and Benchmark
Corporation of Delaware, a Delaware corporation ("Guarantor").
WHEREAS, Wincup Holdings, Inc., a Delaware corporation ("Wincup") and
Guarantor's subsidiary, has entered into a Supply Contract dated as of February
28, 1992 with Polymers for the purchase by Wincup of expanded polystyrene
T-grade beads from Polymers; and
WHEREAS, Polymers and Wincup have agreed to enter into an Amendment to
Supply Contract as of February 28, 1994; and
WHEREAS, as a condition of the Amendment to Supply Contract, Polymers has
required that Guarantor execute and deliver this Guaranty;
NOW, THEREFORE, in consideration of the mutual promises set forth herein
the parties hereto agree as follows:
1. In the Event that Wincup shall be in default of any material
obligation which is has undertaken ("Default") under the Supply Contract, as
amended, and such Default shall remain
uncured for a period of five days after notice thereof by Polymers to Guarantor,
Guarantor shall unconditionally guarantee and become surety for the performance
by Wincup of its obligations thereunder.
2. In the event Guarantor is required to perform under this Guaranty, the
substantive provisions of the Supply Contract, as amended, shall be applicable
and Guarantor shall be entitled to the benefit of any defenses which would have
been available to Wincup under the Supply Contract, as amended.
3. This Guaranty shall remain in effect for the entire term of the Supply
Contract, as amended.
4. (a) This Guaranty shall be binding upon and inure to the benefit of
the successors and assigns of Guarantor and Polymers, but shall not be assigned
by either party without the prior written consent of the other party, provided,
--------
that this Guaranty shall be assignable to any party which purchases or succeeds
to substantially all of the business or assets of the assignor.
(b) This Guaranty is to be construed under the laws of the State of
Pennsylvania, without giving effect to its conflict or choice of law rules.
(c) Failure of either party to require performance of any provisions
of this Guaranty shall not affect either party's right to require full
performance thereof at any time thereafter, and the waiver by either party of a
breach of any provision hereof shall not constitute a waiver of a similar breach
in the
-2-
future or of any other breach or nullify the effectiveness of such provision.
(d) This Guaranty contains the entire agreement between the
parties hereto on the subject matter hereof, and there are no oral
representations, stipulations, warranties, agreements, or understandings with
respect to such subject matter that are not fully expressed herein. Neither this
Guaranty nor its execution has been induced by any representation, stipulation,
warranty, agreement, nor understanding of any kind other than those herein
expressed.
IN WITNESS WHEREOF, this Guaranty has been executed by the parties hereto,
all of as of the date first above written.
XXXXX POLYMERS, INC.
By: [SIGNATURE APPEARS HERE]
-------------------------------
Title: Vice President
----------------------------
Dated: 2/25/94
----------------------------
BENCHMARK CORPORATION OF DELAWARE
By: [SIGNATURE APPEARS HERE]
-------------------------------
Title: President
----------------------------
Dated:
----------------------------
- 3 -
EXHIBIT C
The assertion of certain rights under this Note, and the transfer of the
Note of which this amendment is a part, are subject to the terms of an
Intercreditor Agreement entered into between Xxxxx Paper Company, Continental
Bank and Wincup Holdings, Inc., on February 28, 1992.
First Amendment to Negotiable Secured Note
WHEREAS, on February 24, 1992, Xxxxx Container Products Group, Inc., a
Delaware corporation ("SCPG"), executed a negotiable, secured note in the amount
of Five Million Dollars ($5,000,000) for the benefit of Xxxxx Paper Company
(hereinafter "Secured Note");
AND WHEREAS, the aforementioned Secured Note provided for 18 payments of
principal and interest and a final payment to be made on February 28, 1997;
AND WHEREAS, Wincup Holdings, Inc., a Delaware corporation ("Holdings"),
purchased all of the shares of SCPG and thereafter merged SCPG into Holdings so
that Holdings is obligated under the Secured Note;
AND WHEREAS, the undersigned, in exchange for good and valuable
consideration, the receipt of which is hereby acknowledged, wish to amend
certain provisions of the Secured Note:
NOW THEREFORE, the parties hereby agree as follows:
The second and third sentences of Paragraph 1 of the Secured Note are
hereby deleted in their entirety, and the following provision is hereby
substituted:
Effective as of November 30, 1993, the interest rate
applicable on the Secured Note shall be reduced from twelve
percent (12%) per annum to six percent (6%) per annum.
Commencing with the payment due on February 28, 1994, Maker
shall be under no obligation to amortize principal but instead
shall repay the total principal, together with accrued interest,
with the final payment due on February 28, 1997. In addition,
Maker shall, at its option, have the right to defer payment of
interest until the final payment to be made on February 28,1997,
provided however, that during such time as the interest is
deferred, interest shall continue to accrue. In the event that
the Maker does not elect to defer the interest payment as
provided above, then commencing on February 28, 1994, and
continuing on each February 28, May 30, August 30 and November 30
thereafter, Maker shall make quarterly interest payments at the
annual rate of six percent (6%) on the unpaid principal balance.
All other provisions of the Secured Note shall remain unchanged and in full
force.
WINCUP HOLDINGS, INC. XXXXX PAPER COMPANY
[SIGNATURE APPEARS HERE] /s/ Xxxx X. Xxxxxx
------------------------ ----------------------------------
Xxxx X. Xxxxxx
Senior Vice President
& Chief Administrative Officer
Exhibit D
No. BCD-3 February 28, 1994
THIS WARRANT AND THE SHARES OF COMMON STOCK PURCHASABLE HEREUNDER ARE
RESTRICTED SECURITIES WITHIN THE MEANING OF RULE 144 PROMULGATED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, AND ANY SALE, TRANSFER, PLEDGE OR OTHER
DISPOSITION HEREOF OR THEREOF MAY BE MADE ONLY IN ACCORDANCE WITH THE
PROVISIONS OF SUCH RULE OR OTHER APPLICABLE FEDERAL LAW AND IN ACCORDANCE
WITH ANY APPLICABLE STATE SECURITIES LAW.
VOID AFTER 5:00 P.M. PHILADELPHIA, PENNSYLVANIA TIME
ON FEBRUARY 28, 1999
WARRANT TO PURCHASE 150 SHARES OF NONVOTING COMMON
STOCK OF BENCHMARK CORPORATION OF DELAWARE
THIS CERTIFIES THAT, for value received, Xxxxx Paper Company (the "Holder")
is entitled, subject to the terms and conditions set forth herein, to purchase,
during the period from the date hereto through 5:00 pm. Philadelphia,
Pennsylvania time on February 28, 1999 (the "Expiration Date"), from Benchmark
Corporation of Delaware (the "Company"), a Delaware corporation, up to 150 fully
paid and non-assessable shares, subject to adjustment as set forth in Section 3
hereof, (the "Warrant Shares") of the Company's Nonvoting Common Stock, par
value $.10 per share (the "Nonvoting Common Stock").
The Holder is entitled to purchase the Warrant Shares at a price per
Warrant Share (such price, as adjusted from time to time hereunder being
referred to as the "Exercise Price") of One Thousand Five Hundred Dollars
($1,500.00), subject to adjustment as provided in Sections 3 hereof, through the
Expiration Date.
The Exercise Price then in effect multiplied by the number of Warrant
Shares for which this Warrant is exercised at any time is hereinafter referred
to as the "Purchase Price."
-1-
1. Exercise of Warrant.
-------------------
(a) This Warrant may be exercised, in whole or in part, at any time after
the date hereof and on or prior to the Expiration Date, by delivering to the
Secretary of the Company (i) a written notice, in substantially the form of
Exhibit A attached hereto, from the Holder specifying the number of Warrant
Shares the Holder then desires to purchase and the name and address of a
location in Philadelphia, Pennsylvania to which certificates representing such
Warrant Shares shall be delivered against payment of the Purchase Price and (ii)
a written statement to the effect that the Holder is not acquiring such Warrant
Shares with a view to the resale thereof and that the Holder is aware of the
restrictions regarding disposition of any Warrant Shares imposed by the
Securities Act of 1933, as amended (the "Act"), and any applicable state
securities law. This Warrant shall be deemed to have been exercised at the close
of business 30 days after the receipt by the Company of such notice (the
"Exercise Date") and the Holder shall be treated for all purposes as the record
holder of such Warrant Shares at that time.
(b) Within ten business days after the Exercise Date, the Company will
cause certificates representing the number of Warrant Shares specified in such
notice to be issued and will deliver such certificates to the Holder at the
location designated in such notice against payment therefor.
(c) The Company shall at all times reserve and keep available, free of
preemptive rights, out of its authorized and unissued shares of Nonvoting Common
Stock, for the purpose of effecting the exercise of this Warrant, the number of
shares of Nonvoting Common Stock purchasable hereunder.
(d) If the Holder shall exercise this Warrant for fewer than all of the
Warrant Shares, the Company shall issue to the Holder a new Warrant exercisable
for the purchase of the remaining Warrant Shares.
2. Transfer of Warrant. Subject to compliance with the Act and any
-------------------
applicable state securities law, this Warrant shall be transferable by the
Holder only on one occasion and only then to a purchaser of all of the issued
and outstanding voting securities of Xxxxx Polymers, Inc., or to such
purchaser's "affiliate" as that term is defined in Rule 12b-2 of the regulations
promulgated under the Securities Exchange Act of 1933. For the protection of the
Company under such federal and state laws, the certificates representing the
Warrant Shares shall bear an appropriate restrictive legend. The Company shall
not be obligated to deliver any certificates representing any Warrant Shares for
such period as may be required for the
-2-
Company, with reasonable diligence, to comply with any such federal or state
laws.
3. Adjustment of Number of Purchasable Shares. If at any time prior
------------------------------------------
to the exercise of this Warrant, the Company shall declare a dividend payable in
shares of Nonvoting Common Stock or in shares of the Company's Voting Common
Stock, par value $.10 (collectively, the "Common Stock") or shall split, combine
or otherwise reorganize or reclassify its Common Stock, then the number of
shares purchasable hereunder shall be increased or decreased, as the case may
require, such that the Purchase Price as in effect immediately prior to such
adjustment shall remain unchanged.
4. Fractional Interests. The Company shall not be required to issue
--------------------
fractions of a share of Nonvoting Common Stock upon the exercise of this
Warrant. If any fraction of a share of Nonvoting Common Stock would, except for
the provisions of this Section 4, be issuable upon the exercise of this Warrant,
the Company will:
(i) if the fraction of a share otherwise issuable is equal to or
less than one-half, round down and issue to the Holder only the largest whole
number of shares of Nonvoting Common Stock to which the Holder is otherwise
entitled; or
(ii) if the fraction of a share otherwise issuable is greater
than one-half, round up and issue to the Holder one additional share of
Nonvoting Common Stock in addition to the largest whole number of shares of
Nonvoting Common Stock to which the Holder is otherwise entitled.
5. Rights of the Holder as a Stockholder. Prior to the Exercise
-------------------------------------
Date, the Holder shall not be entitled to any of the rights of a stockholder of
the Company with respect to the Warrant Shares, including, without limitation,
the right to vote or to receive dividends or other distributions thereon, and
shall not be entitled to receive any notice of any proceedings of the Company.
6. Notice. Any notice required or permitted to be given hereunder
------
shall be given in writing and sent by certified mail, return receipt requested,
addressed to the Company, or the Holder, as the case may be, at the last known
address of the person to whom such notice is to be given.
-3-
IN WITNESS WHEREOF, Benchmark Corporation of Delaware has caused this
Warrant to be executed as of the day and year first above written.
BENCHMARK CORPORATION OF DELAWARE
By: /s/ Xxxxxxx X. Xxxxxxx
---------------------------------
Xxxxxxx X. Xxxxxxx
President
-4-
EXHIBIT A
---------
TO: BENCHMARK CORPORATION OF DELAWARE
The undersigned, the holder of Warrant No. BCD-3, hereby irrevocably elects
to exercise the purchase right represented by such Warrant for, and to purchase
thereunder, ___________ shares of Nonvoting Common Stock of Benchmark Holdings,
Inc. and herewith makes payment of $___________ therefor, and requests that the
certificates for such shares be issued in the name of, and delivered to,
______________________________ whose address is ________________________________
_____________________________________.
Date:____________________
Name:__________________________________
(Print)
By:____________________________________
(Signature)
Address:_______________________________
-5-
