EXHIBIT 10.12
CONFIDENTIAL TREATMENT
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
Contract dated April 1, 1996 between ARCO Chemical Company, a Delaware
corporation, having a place of business at 0000 Xxxx Xxxxxxx Xxxx, Xxxxxxx
Xxxxxx, Xxxxxxxxxxxx 00000-0000 ("Seller") and WinCup Holdings, L.P., having a
place of business at 0000 Xxxx Xxxxxxx Xxxx, Xxxxxxx, Xxxxxxx 00000 ("Buyer").
WITNESSETH:
Subject to the terms and conditions provided for in this Contract, the
parties agree as follows:
1. Sale and Purchase of Product - Specifications:
Seller shall sell, and Buyer shall purchase, the following product or
products meeting the specifications set forth in Exhibit A hereto: Dylite(R)
F271T
Such product or products are hereinafter referred to individually or
collectively as "Product".
2. Quantity:
16 MM lbs. The quantity shall be taken ratably over the contract term.
3. Term:
The term of this Contract, and its effective period, is April 1, 1996 through
September 30, 1996. The Contract is renewable upon mutual written agreement of
Seller and Buyer for an additional three (3) period (i.e. for the period October
1, 1996 through December 31, 1996).
4. Price: The price of Product shall have two components:
Styrene Monomer Price (c/lb.) & Contract Delta (c/lb.)
The Styrene Monomer Price shall be the low contract styrene benchmark price
as published in the CMAI Monomers Market Report ("CMAI Report"). The Styrene
Monomer Price hereunder shall be adjusted, as appropriate, effective the first
Monday following publication of the CMAI Report.
If the CMAI Report is not available or is discontinued, then the parties
shall negotiate in good faith to find a mechanism to establish a fair Styrene
Monomer Price.
The Contract Delta shall be[ ]/lb. Seller may change the Contract Delta
by giving Buyer not less than sixty (60) days' written notice. If Buyer does not
serve Seller with a written objection to such change within ten (10) days after
the date such written notice from Buyer to Seller is mailed, Buyer shall be
deemed to have accepted such change. Should Buyer serve Seller with such written
notice of objection to any proposed change to the Contract Delta and should
Buyer and Seller be unable to agree upon such proposed change prior to the
expiration of such sixty (60) day period, then this Contract shall terminate at
the expiration of such sixty (60) day period unless Seller retracts such change
on or before such effective date, without prejudice to the rights of either
party with respect to Product delivered hereunder prior to the termination date.
5. Transportation Terms: For all shipment destinations other than Corte Madera,
CA, F.O.B. Seller's plant, freight collect to be paid by Buyer. For shipments to
Corte Madera, CA, F.O.B. Seller's plant, freight prepaid by Seller and freight
charge of $[ ] added to invoice for Buyer's account.
6. Shipment Destinations: All Buyer locations.
7. Mode of Shipment: Truck
8. Packages: 1,000 lb. box
9. Governmental Action Affecting Price:
In the event of any governmental action substantially affecting Seller's
right to maintain or change the price or terms of payment, then at any time such
governmental action is in effect, Seller may, at its option, either
(i) terminate this Contract upon thirty days' notice or (ii) postpone, by
notice to Buyer, the effective date of any price change or change or 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 does not
waive its right to terminate thereafter.
10. Payment; Credit:
Buyer shall pay Seller for Product purchased under this Contract in
accordance with the following terms: Net [ ] days from date of invoice. If Buyer
fails to pay Seller in accordance with the above terms, then Seller, at its
option and without prejudice to its other rights and remedies, may (i) terminate
this Contract forthwith and without notice, (ii) suspend deliveries until all
indebtedness is paid in full and/or (iii) place Buyer on a cash-on-delivery
basis. In the event of default in payment, Buyer shall pay Seller's costs of
collection, including, but not limited to, reasonable attorneys' fees. If in the
sole opinion of Seller the financial responsibility of Buyer is impaired or
unsatisfactory, deliveries may be suspended or Buyer may be placed on cash-on-
delivery status until arrangements are made for security satisfactory to Seller
or, at Seller's option, until all indebtedness to Seller is paid in full. All
payments under this Contract shall be made at the full invoiced amount; no
prompt payment or other type of discount shall apply.
11. Shipments:
Buyer shall give Seller shipping instructions sufficiently in advance so as
to allow for timely delivery, taking into account the method of shipment
desired. Such instructions shall include all pertinent information, including
but not limited to, desired date of delivery or loading, type of equipment and
special handling instructions.
Buyer shall promptly receive and unload shipments, return as instructed
the transportation facilities employed and pay all demurrage, rental, and other
charges or damages resulting from Buyer's delay in receiving, unloading, or
returning such transportation facilities or from damage thereto caused by Buyer.
Shipments shall not be diverted, reconsigned, or returned by Buyer without
the prior written consent of Seller.
12. Taxes:
Seller shall pay all taxes (except for property taxes, which shall be
governed by the state law applicable thereto), fees, or other charges (with the
exception of the product excise taxes noted below) imposed or assessed by any
governmental authority with respect to Product delivered hereunder the taxable
incident of which occurs before the transfer of title to Product to Buyer.
Buyer shall pay all taxes (except for property taxes, which shall be
governed by the state law applicable thereto) fees, or other charges imposed or
assessed by any governmental authority withy respect to Product delivered
hereunder the taxable
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incident of which occurs after transfer of title to Product to Buyer.
All taxes, including any Superfund excise tax, or other charges imposed or
assessed by any governmental authority the taxable incident of which is the
transfer of title or the delivery of Product hereunder, or the receipt of
payment therefor, regardless of the character, method of calculation, or measure
of the levy or assessment, shall be paid by the party upon whom the tax, fee, or
charge is imposed by law, except that Buyer shall reimburse Seller for all
federal, state, and local sales, use, gross receipts, and other excise taxes,
fees or charges that are imposed by law on Seller as a result of the sale of
Product to Buyer.
Any new, or increase in any, tax or license, inspection, or other fee
levied after the date of this Contract by any governmental authority upon, or
that is measured by, or is incident to, or is a result of, any transaction
herein provided for shall be borne by Buyer, whether paid directly to the
governmental authority or as a reimbusement of Seller. Buyer may after receipt
of notice of such new or increased tax or fee give written notice to Seller of
its election to terminate this Contract unless Seller notifies Buyer within ten
days after receipt of said notice that Seller will bear such new or increased
tax or fee.
13. Title and Risk of Loss:
Title and risk of loss shall pass from Seller to Buyer at Seller's point of
shipment as Product is delivered to transportation facilities.
14. Conditions Affecting Performance:
When either party's ability to manufacture or deliver or receive or consume
Product or to otherwise perform under this Contract (other than Buyer's
obligation or ability to make payment for Product delivered under this Contract)
is impeded, restricted, or affected (A) by any cause such as, but not limited
to, (i) fire, explosion, flood, storm, earthquakes, tidal wave, war, military
operation, national emergency, civil commotion, or other event of the type of
the foregoing, (ii) any strike or other difference with workers or unions
(without regard to the reasonableness of acceding to the demands of such workers
or unions), (iii) any governmental law, regulation, decree, order, or similar
act, or (iv) any shortage in supplies of, or impairment in the facilities of
production, manufacture, transportation, or distribution of, either party
attributable to (a) mechanical or other breakdown or failure, (b) the order,
requisition, request, or recommendation of any governmental agency or acting
governmental authority, or either party's compliance therewith, (c) governmental
proration, regulation, or priority, or (d) the inability of Seller to obtain, on
terms deemed by Seller to be practicable, any feedstock or other raw material
(including energy) or (B) by any cause beyond such party's control, whether
similar of dissimilar to any aforementioned cause, then the party whose ability
is so impeded, restricted, or affected shall have the right in its sole
discretion, by notice to the other party, to reduce, in part or in full,
deliveries or receipt of Product hereunder; and any deliveries so reduced shall
be permanently cancelled rather than merely suspended. For the purpose of the
application and interpretation of the provisions of this Paragraph 14, it is
expressly deemed that all Product is to be produced at one or more facilities
owned or operated by Seller. If Seller's ability to supply Buyer with Product
from Seller's facilities is impeded, restricted, or affected by one or more of
the aforementioned causes, then Seller shall not be obligated to purchase or
obtain Product for Buyer on the open market or from other producers or suppliers
of Product. However, in the event that Seller should, nevertheless, determine,
in its sole discretion, to purchase or obtain Product on the open market or from
other
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producers or suppliers of Product, then any such purchase or obtaining of
Product shall not constitute a waiver or estoppel of Seller's rights, or
otherwise preclude Seller from asserting its rights, under this Contract not to
purchase or obtain, or continue to purchase or obtain, Product for Buyer.
Seller's obligation to sell Product is subject to modification and reduction in
accordance with any present or future allocation program of Seller or of any
governmental authority.
15. Claims:
All claims of Buyer with respect to the quality or quantity of Products
sold and delivered pursuant to this Contract shall be deemed waived and forever
barred unless Buyer notifies Seller of the nature and details of the claim in
writing within sixty (60) days after receipt of the shipment by Buyer. Any such
claim that is not asserted as a claim, counterclaim, defense, or set-off in a
judicial proceeding instituted within one year after Seller's denial thereof
shall be forever waived, barred and released.
Buyer shall provide to Seller all materials and documentation necessary for
the investigation or resolution of any claims, including, but not limited to,
product samples, weight tickets, and shipping documents.
Buyer assumes all risk and responsibility for the handling of any Product,
for the results obtained by the use of any Product in manufacturing processes or
otherwise, or for the results obtained by the use of any Product in combination
with other substances, irrespective of the fact that such use or any handling of
such Product may be in accordance with any description, advice, or suggestion of
Seller. If any description, advice, or suggestion is given, it is given and
accepted at Buyer's risk, and Seller shall not be responsible or liable therefor
or for the results thereof.
16. 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 Buyer shall make the Material Safety Data Sheets available
throughout the area of Buyer's plants or premises where exposure to any Product
may occur, all in accordance with applicable law.
17. Warranties:
Seller warrants that all Product shall meet the specifications established
in this Contract.
Seller warrants that all Product delivered under this Contract will have
been produced in compliance with the requirements of the Fair Labor Standards
Act of 1938, as amended.
Seller warrants that all Product shall be delivered free of the rightful
claim by anyone of infringement of any United States patent.
SELLER MAKES NO OTHER EXPRESS OR IMPLIED WARRANTY, STATUTORY OR
OTHERWISE, CONCERNING ANY PRODUCT, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY
OF FITNESS FOR A PARTICULAR PURPOSE, ANY WARRANTY OF MERCHANTABILITY, OR ANY
WARRANTY AS TO QUALITY OR CORRESPONDENCE WITH ANY DESCRIPTION OR SAMPLE. SELLER
DOES NOT WARRANT AGAINST ANY CLAIM OF INFRINGEMENT OF ANY PATENT
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BASED ON (1) ANY COMBINATION OF ANY PRODUCT WITH ANY OTHER MATERIAL OR (2) THE
USE OF ANY PRODUCT IN THE OPERATION OF ANY PROCESS.
18. Limitation of Damages:
BUYER'S EXCLUSIVE REMEDY FOR ANY AND ALL LOSSES OR DAMAGES RESULTING
FROM THE SALE OF PRODUCT UNDER THIS CONTRACT, INCLUDING, BUT NOT LIMITED TO, ANY
BREACH OF WARRANTY, BREACH OF CONTRACT, NEGLIGENCE, OR STRICT LIABILITY, OR ANY
ALLEGATION THEREOF, SHALL BE LIMITED, AT SELLER'S OPTION, TO EITHER THE RETURN
OF THE PURCHASE PRICE OR THE REPLACEMENT OF THE PARTICULAR PRODUCT FOR WHICH A
CLAIM IS MADE AND PROVED.
19. Further Limitation of Damages:
IN NO EVENT SHALL SELLER BE LIABLE FOR ANY SPECIAL, CONSEQUENTIAL,
INCIDENTAL, OR INDIRECT LOSSES OR DAMAGES ATTRIBUTABLE TO THE SALE OF PRODUCT
UNDER THIS CONTRACT OR TO ANY OTHER MATTER ARISING OUT OF OR IN CONNECTION WITH
THIS CONTRACT.
20. 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 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 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 Product therefore delivered.
21. General:
This Contract shall be binding upon and inure to the benefit of the
personal representatives, heirs, and successors of Buyer and the successors and
assigns of Seller, but shall not be assigned by Buyer without the prior written
consent of Seller.
This Contract is to be construed under the laws of the Commonwealth of
Pennsylvania, without giving effect to its conflict or choice of law rules.
Failure of either party to require performance of any provision 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 nullify the effectiveness of such provision or
constitute a waiver of a similar breach in the future or of any other breach.
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 prior or concurrent oral 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
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writing and signed by Seller and Buyer. 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.
Any notices given under this Contract shall be in writing and addressed to
the other party at the address specified in the first paragraph of the Contract
or at such other addresses as which the receiving party may have duly notified
the sending party. Any such notice shall be sent by prepaid first class mail, by
facsimile transmitter, private courier service, or any other manner reasonably
calculated to assure a safe and timely arrival. The date upon which a notice is
sent shall be treated as the date of service.
In Witness Whereof, Seller and Buyer have executed this Contract in
counterparts as of the date first above written.
ARCO Chemical Company WinCup Holdings, L.P.
By: [SIGNATURE APPEARS HERE] By: /s/ Xxxxxx X. Xxxxxxxx
-------------------------------- -------------------------------------
Title: Vice President, Plastics Title: Director Purchasing
----------------------------- ----------------------------------
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CONTRACT DATED APRIL 1, 1996
BETWEEN
ARCO CHEMICAL COMPANY
AND
WINCUP HOLDINGS, L.P.
EXHIBIT A
---------
DYLITE F271T
SPECIFICATIONS
PRODUCT SPECIFICATION TEST METHOD
------- ------------- -----------
Bead Characteristics: Cup Grade
Total Volatile Content, 6.0-6.5 520
wt%
Screen Analysis Maximum 102
wt%
On No. 30 0.0
On No. 35 5.0
On No. 40 40.0
On No. 45 No. Max.
On No. 50 22.0
Through No. 50 2.5
Bead Flow Characteristics: Pass 454
Unimpregnated Beads: None 520
Visual Observation
Bead Shape: 0 Non-spherical 102
Contamination: 9 slivers/lb. 628
Surface Additive, ppm:
Silicone 175-275 649
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CONTRACT EXTENSION AGREEMENT
DATED SEPTEMBER ___, 1996
BETWEEN
ARCO CHEMICAL COMPANY
AND
WINCUP HOLDINGS, L.P.
WHEREAS, ARCO Chemical Company ("ACC") and WinCup Holdings, L.P. ("WinCup")
entered into a contract ("Contract") dated April 1, 1996 whereby ACC agreed to
sell Dylite(R) F271T ("Product") to WinCup;
WHEREAS, the term of the Contract, and its effective period, is April 1, 1996
through September 30, 1996, renewable upon mutual agreement of ACC and WinCup
for an additional three (3) month period (i.e., for the period October 1, 1996
through December 31, 1996); and
WHEREAS, ACC and WinCup ("the Parties") now wish to enter into an agreement to
extend the Contract and to be bound by the terms of the Contract as extended
hereby;
NOW THEREFORE, the Parties hereby agree, effective as of October 1, 1996, as
follows:
1. Section 3 (Term) is deleted in its entirety and replaced with the
following:
"The term of this Contract, and its effective period, is October 1, 1996
through March 31, 1997."
2. All other terms and conditions of the Contract shall remain in full force
and effect.
In Witness Whereof, the Parties have executed this Contract Extension Agreement
as of the date first above written:
ARCO Chemical Company WinCup Holdings, L.P.
By: [SIGNATURE APPEARS HERE] By: /s/ Xxxxxx X. Xxxxxxxx
-------------------------- ---------------------------
Title: VP Plastics Title: Director Purchasing
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