Confidential Treatment
EXHIBIT 10.13
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.
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HUNTSMAN
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PRODUCT SALES AGREEMENT
THIS AGREEMENT, is made and entered into as of the 1st day of January, 1996,
by and between HUNTSMAN CHEMICAL CORPORATION, a Utah corporation having a
mailing address at 000 Xxxxxxxx Xxx, Xxxx Xxxx Xxxx, Xxxx 00000 (hereinafter
"Seller"), and WinCup, having a mailing address at 0000 X. Xxxxxxx Xxxx,
Xxxxxxx, XX 00000 (hereinafter "Buyer").
1. PRODUCTS. Seller agrees to sell to Buyer, and Buyer agrees to purchase
from Seller, on the terms and conditions herein contained, the following
Product(s):
MINIMUM INITIAL
ANNUAL SHIPMENT PRICE
PRODUCTS QUANTITY F.O.B. POINT QUANTITY (PER UNIT)
730-J1N-9100 8,000,000 pounds Seller's Shipping Point 45,000 pounds Market Price at Time of
I300-J1N-9100 Freight Prepaid Shipment
2. QUANTITY LIMITATION. During each year of this Agreement, Buyer will
purchase the specified Annual Quantity of Products(s) or, if Buyer's
requirements are reduced, an annual quantity that bears the same ratio to
Buyer's reduced requirements as the specified Annual Quantity bore to Buyer's
estimated total requirements as of the date hereof. Seller may, at its option,
limit the quantity of any product to be supplied hereunder in any calendar
month to the lesser of one-twelfth (1/12) of the specified Annual Quantity or,
after the initial three (3) months of each contract year, the average of the
monthly quantities delivered during the expired months of that contract year.
3. TERM. The term of this Agreement shall be for a period commencing on
January 1, 1996, and ending on December 31, 1996. The term "contract year" shall
mean each respective twelve month period beginning with the commencement of the
term hereof.
4. PRICE. The price of Product(s) hereunder is subject to change by Seller
from time to time on at least thirty (30) days notice to Buyer. In the event of
any government action substantially affecting Seller's right to maintain or
change the price of any Product or terms of payment and at any time such
governmental action is in effect, Seller shall have the right, at its option,
to (i) terminate this Agreement on thirty (30) days notice to Buyer, or (ii)
postpone, by notice to Buyer, the effective date of any price change or change
of other terms to the extent so prevented until such date or dates as it is not
so prevented. By its election to postpone rather than terminate, Seller shall
not waive its right to terminate thereafter. Seller's grant or withdrawal of
Seller's Temporary Voluntary Allowance (TVA) will not be considered a price
change under this contract.
5. COMPETITIVE PRICES. If Buyer provides satisfactory evidence that it can
purchase a product of like quantity and quality, produced in the United States
(including its territories or possessions), at a lower price and on terms and
conditions substantially the same as those contained herein and if Seller elects
not to meet such lower price, then all quantities thereof actually purchased by
buyer at a lower price will be deducted from the applicable remaining quantity
obligation for such like Product hereunder. If Seller elects to meet such lower
price, then Seller may withdraw its lower price at any time on at least thirty
(30) days notice thereof to Buyer or immediately upon termination of the
competitive lower price.
6. PAYMENT TERMS. Buyer shall pay Seller for all Product(s) purchased
hereunder in accordance with the following terms: Net [ ] days from date
of Invoice. If Buyer shall fail to pay Seller in accordance with said terms,
Seller shall have the right, at its option and in addition to all other remedies
available under applicable law, to either (i) terminate this Agreement (other
than Buyer's obligation to pay for Product(s) delivered hereunder) immediately
upon notice to Buyer, or (ii) suspend deliveries until all Indebtedness is paid
in full, or (iii) place Buyer on a cash-on-delivery basis. If in the sole
opinion of Seller the financial responsibility of Buyer is impaired or
unsatisfactory to Seller, deliveries may be suspended or Buyer may be placed on
a cash-on-delivery basis until arrangements are made for security satisfactory
to Seller.
7. CREDIT LIMIT. Seller may establish a credit limit for Buyer's account.
Seller reserves the right to refuse to make shipments to Buyer if such shipments
would cause Buyer to exceed such credit limit. Seller may increase or decrease
such credit limit from time to time, in its sole discretion. Seller's failure
to enforce the credit limit in any instance shall not constitute a waiver of
Seller's right to subsequently enforce the credit limit. Seller shall be under
no obligation to store Products for Buyer beyond the scheduled shipment date if,
on such date, Buyer's account would exceed the established credit limit if
shipments were made. Products so affected may, at Seller's option and after ten
(10) days notice to Buyer, be shipped to another customer, or treated by Seller
as cancelled, subject to cancellation charges to cover Seller's costs in
relation to such cancellation. In lieu of extending credit, Seller is entitled
to request from the Buyer a cash-in-advance deposit or a letter of credit prior
to the supply of the Products.
8. TAXES. Any tax (other than an income tax), duty or other governmental
charge now or hereafter imposed on any Product or an any raw material used in
manufacturing any Product (or on Seller, or required to be paid or collected by
Seller, by reason of the manufacture, transportation, sale, or use of such
Product or raw material) shall be paid by Buyer in addition to the price of the
Product.
9. DELIVERIES. Seller will select the origin of shipment and the carrier.
The quantity of all bulk rail and truck deliveries will be determined by Seller
by outage tables with corrections for temperature or by weightmaster's
certificate, as appropriate, and Seller's quantity determination shall govern.
Buyer will promptly unload each delivery at its own risk and expense, including
any demurrage or detention charges.
10. EXCUSES FOR NONPERFORMANCE. Neither party shall be responsible for any loss
or damage resulting from any delay in performing or failure to perform any
provisions of this Agreement (other than Buyer's obligation to make payments for
any Products delivered hereunder), so long as any such failure or delay arises
from fires, explosions, plant shutdowns, floods, storms, earthquakes, tidal
waves, wars, military operations, national emergencies, civil commotions,
strikes or other differences with workers or unions or from any delay or failure
in delivery when the supplies of either party or the facilities of production,
manufacture, transportation or distribution which otherwise would be available
to either party are impaired by mechanical breakdowns or causes beyond its
control or by the order, requisition, request, or recommendation of any
governmental agency or acting governmental authority, or either party's
compliance therewith, or from governmental protection, regulation, or priority,
or from the inability of Seller to obtain from its usual sources, at prices and
on terms deemed by Seller to be practicable, any feedstock or other raw material
(including energy sources) necessary for manufacturing any Product, or from any
other delay or failure due to any cause beyond either party's reasonable
control, similar or dissimilar to any such causes. Seller's obligation to sell
Product(s) hereunder is subject to modification and reduction in accordance with
any present or future allocation program of Seller or any governmental
authority.
11. PRODUCT HAZARDS. Buyer assumes all risk and responsibility for handling the
Product(s), for results obtained by use of the Product(s) in manufacturing
processes or otherwise, and for results obtained by use of the Product(s) in
combination with other substances, irrespective of the fact that such use or any
handling of the Product(s) is in accordance with any description, advice, or
suggestion of Seller. If any description, advice, or suggestion is given by
Seller, it is given and accepted at Buyer's risk, and Seller shall not be
responsible or liable therefor or for the results thereof. Buyer will indemnify
Seller against all claims, loss, liability and expense on account of any injury
or death of persons (including Buyer's property) arising out of Buyer's
unloading, storage, handling or use of the Product(s) (except to the extent
caused by Seller's negligence), and such indemnity obligation of Buyer shall
survive termination of this Agreement.
12. WARRANTIES. Seller warrants that each Product will meet specifications
designated as such in this Agreement or in Seller's current applicable
publications and that each Product will be delivered free of the rightful claim
of any third person by way of United States patent infringement. EXCEPT AS
STATED IN THIS AGREEMENT, SELLER MAKES NO EXPRESS WARRANTIES CONCERNING ANY
PRODUCT. NO WARRANTIES OF MERCHANTABILITY, OR WARRANTIES AS TO QUALITY OR
CORRESPONDENCE WITH DESCRIPTION OR SAMPLE, SHALL BE IMPLIED. SELLER DOES NOT
WARRANT AGAINST UNITED STATES PATENT INFRINGEMENT BY WAY OF THE USE OF ANY
PRODUCT IN COMBINATION WITH OTHER MATERIALS OR IN THE OPERATION OF ANY PROCESS.
13. CLAIMS. Any claim of Buyer with respect to the quality or quantity of
Product(s) sold and delivered hereunder shall be deemed waived and forever
barred unless Buyer notifies Seller in writing of the nature and details of the
claim within sixty (60) days after receipt of the shipment by Buyer. Any such
claim of which Seller is notified but which is not asserted as a claim,
counterclaim, defense, or set-off in a judicial proceeding instituted within one
(1) year after Seller's denial thereof shall be forever waived, barred and
released.
14. PRODUCT CONTAINER REUSE OR RESALE. Buyer agrees that any reuse by Buyer of
product containers bearing Seller's logo and name will occur only after such
logo and name have been removed or obliterated from and are no longer visible on
the containers. Buyer further agrees that any resale of Seller's product
containers will occur only after relabeling or otherwise removing or
obliterating Seller's logo therefrom.
15. DEFAULT. Except as otherwise specifically provided herein, if either party
fails to perform any of the terms of this Agreement, then the other party may
treat such default as a breach of this Agreement and, if such default is not
cured within thirty (30) days after written notice thereof to the defaulting
party, may immediately terminate this Agreement by giving written notice thereof
to the defaulting party, provided, however, that (i) such termination shall not
relieve Buyer from the obligation to pay for all Product(s) delivered prior to
such termination and (ii) if Buyer is terminating, before exercising such
option, Buyer must first make payment for all Product(s) theretofore delivered.
16. DAMAGES LIMITED. BUYER'S EXCLUSIVE REMEDY FOR ANY AND ALL LOSSES OR DAMAGES
RESULTING FROM THE SALE OF PRODUCT(S) UNDER THIS AGREEMENT, INCLUDING WITHOUT
LIMITATION ANY CLAIM OF BREACH OF WARRANTY, BREACH OF CONTRACT, NEGLIGENCE, OR
STRICT LIABILITY, SHALL BE LIMITED TO, AT SELLER'S OPTION, EITHER (i) RETURN OF
THE PURCHASE PRICE OR (ii) REPLACEMENT OF THE PARTICULAR PRODUCT(S) FOR WHICH A
CLAIM IS MADE AND PROVED. IN NO EVENT SHALL SELLER BE LIABLE FOR ANY SPECIAL,
CONSEQUENTIAL, INCIDENTAL OR INDIRECT LOSSES OR DAMAGES FOR THE SALE OF
PRODUCT(S) UNDER THIS AGREEMENT.
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17. NOTICE. Any notice under this Agreement shall be in writing and shall be
deemed to have been given and received and shall be effective when personally
delivered or when deposited in the U.S. mail (certified or registered mail,
return receipt requested) or with the telegraph company, postage or telegraph
charges prepaid, and addressed to the respective party at the address set forth
in the first paragraph of this Agreement or at such other address as such party
may hereafter designate by notice to the other party.
18. ASSIGNMENT. Neither the Buyer nor the Seller shall have the right to assign
or transfer this Agreement or any rights hereunder (other than the right to
receive payment for Products delivered) without the prior written consent of the
other party.
19. GENERAL PROVISIONS. This Agreement shall be governed by and construed in
accordance with the laws of the State of Utah. This Agreement, including any
addenda identified herein, contains the entire agreement between the parties
hereto, and there are no other oral representations, stipulations, warranties,
agreements or understandings between the parties with respect to the subject
matter hereof. Any prior negotiations, correspondence, understandings or
agreements with respect to the subject matter hereof shall be deemed to be
merged into and shall be superseded by this Agreement and shall be of no further
force and effect. Neither this Agreement nor any addition to, amendment,
modification, alteration or waiver of all or any part hereof shall be binding
or effective unless and until signed by both Buyer and Seller, and performance
prior to such execution shall not constitute a waiver of this requirement. If
the provisions of this Agreement and the provisions of any purchase order or
order acknowledgment written in connection herewith conflict, then the
provisions of this Agreement shall prevail. Failure of either party to require
performance of any provision of this Agreement shall not affect either party's
right to require full performance thereof at any time thereafter, and 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.
20. OTHER PROVISIONS. (Identify and attach additional pages or addenda as
necessary)
IN WITNESS WHEREOF, Seller and Buyer have executed this Agreement as
of the day and year first above written.
SELLER:
HUNTSMAN CHEMICAL CORPORATION,
a Utah Corporation
By: /s/ Xxxx Xxxxxxxx
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Xxxx Xxxxxxxx
Title: Vice President, Sales & Marketing
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BUYER:
WINCUP
a Delaware Corporation
By: /s/ Xxxxxx X. Xxxxxxxx
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Title: Director, Purchasing
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20.1 Pricing: In addition to the thirty (30) day notification, Buyer's price
will not increase until thirty (30) days after the announced date.
21.1 Performance Incentive:
A volume incentive of $[ ] per pound will be issued at the end of each
calendar quarter for all pounds purchased during the quarter.
If Buyer purchases a minimum of [ ] pounds during the contract
period an additional $[ ] per pound incentive will be issued on all
pounds purchased.
21.2 MINIMUM SHIPMENT AND INITIAL PRICE
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Minimum shipment quantity shall not be limited to any amount, but will
be subject to the differential in 20.2.
Initial price described in Article 1. Products is for Xxxxxx Car
deliveries. All other deliveries are subject to the following
differentials:
Truckload Deliveries (40,000 pound shipments)
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Delivery Mode Differential(CPP)
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Xxxxxx Truck to California Plant +[ ]
Truckload Bags +[ ]
Truckload Boxes +[ ]
There will be no upcharge for deliveries to the California plant for the
additional freight incurred by the Seller for a maximum amount of
2,000,000 pounds per year. On any shipments about this above, Seller
will invoice Buyer for the additional freight incurred over and above
the freight average to the Buyer's plants in Ohio and Illinois.
Less Than Truckload Deliveries (add to 40,000 pound Truckload Bag Price)
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Quantity (Pounds) Differential(CPP)
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