Confidential Treatment
EXHIBIT 10.14
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.
BASF Corporation
BASF
March 27, 1996
Polystyrene
Xxxxxx Xxxxxxxx
Wincup Holdings LP
0000 Xxxx Xxxxxxx Xxxx
Xxxxxxx, Xxxxxxx 00000
Dear Xx. Xxxxxxxx:
The following agreement pertains to the sale of BASF polystyrene to Wincup
Holdings LP ("Buyer"). All prior agreements between the parties are terminated
as of December 31, 1995.
Agreement Period
----------------
January 1, 1996 through December 31, 1996, subject to extension as may be
mutually agreed upon by the parties. This agreement may be cancelled by either
party should the other party materially default in its performance and fail to
cure such default within 30 days following its receipt of a notice describing
such default. In addition, either party may terminate this agreement without
cause upon at least 90 days prior written notice to the other party.
BASF Products
-------------
. PS 4600
. PS 5600 or equivalent super high impact polystyrene
. Other BASF polystyrene resins, subject to mutual agreement
BASF represents and warrants that such Products shall meet BASF's published
specifications, and that BASF shall have the right to transfer good title to the
Products, free from any encumbrances. BASF makes no other warranty of any kind,
either express or implied, including any warranty of fitness for a particular
purpose or of merchantability except as expressly stated herein.
Page 1
BASF's liability and buyer's exclusive remedy for any cause of action arising
out of this agreement is expressly limited to replacement of non-conforming
products or payment in an amount not to exceed the purchase price of the
specific products for which damages are claimed, at BASF's option. In no event
shall BASF be liable for any other damages, including incidental, special or
consequential damages.
Buyer shall inspect Products supplied hereunder immediately after delivery.
Buyer's failure to give notice to BASF of any claim within ninety (90) days
after the date of delivery shall constitute unqualified acceptance of such
Products and a waiver by Buyer of all claims with respect thereto.
Estimated Annual Volumes
------------------------
The total volume estimate for the term is between 1,500,000 and 2,500,000 lbs.
The estimated purchase levels have been established as target levels only; it is
understood and agreed that Buyer is not obligated to purchase a minimum quantity
on a take or pay basis. BASF will not be obligated to deliver in any month in
excess of 1/12 of the estimated maximum volume specified above.
Method of Delivery
------------------
. Truck load box delivered (42,000 Lbs. 1,000Lb. cartons)
. Bulk xxxxxx truck (40,000 lbs minimum)
If BASF requests that Buyer accept a shipment in a form and/or quantity
different than ordered, the parties will negotiate the amount of the upcharge
that will apply to that particular shipment.
. Buyer will provide to BASF, on a monthly basis, a 60 day rolling forecast
of anticipated deliveries.
FOB Terms
---------
Delivery shall be FOB shipping point, freight prepaid to, Corte Madera by
carrier of BASF's choice. Requests for deliveries to other Buyer locations
within the continental U.S. will be subject to negotiation of appropriate
incremental freight charges.
Page 2
Pricing
-------
BASF reserves the right to increase prices on any or all Products, upon Thirty
(30) days notice to Buyer prior to the effective date of any price increase.
The purchase price does not include any government taxes or similar charges that
BASF may be required to pay with respect to the transportation, delivery or sale
of Products delivered hereunder, and Buyer shall pay such taxes or charges upon
request, or provide BASF with properly completed exemption certificates for any
taxes or charges from which Buyer claims exemption.
Payment Terms
-------------
Net [ ] days from date of invoice.
Each delivery of Products hereunder shall constitute a separate sale. If Buyer
shall fail to pay for a particular shipment or otherwise by in default of any of
the terms and conditions of this agreement, BASF may defer further shipments
until such defaults are remedied.
If at any time the financial responsibility of Buyer shall, in the reasonable
judgment of BASF, become unsatisfactory, BASF may require cash or satisfactory
security upon subsequent shipments or deliveries.
Confidentiality
---------------
BASF and Buyer hereby agree that the existence and terms of this Agreement are
confidential and shall not be disclosed to any third party (exclusive of
affiliates) without the written consent of both BASF and Buyer.
Force Majeure: Allocation
-------------------------
Failure of BASF to make, or Buyer to take, any one or more deliveries of
Products when due, if caused by fire, storms, floods, strikes, lockouts,
accidents, war, riots or civil commotions, inability to access transportation or
obtain raw materials on reasonable commercial terms (including unexpectedly
large price increases), embargoes, any State or Federal regulation, law or
restriction, governmental seizure or requisition, or any other cause or
contingency beyond the reasonable control of such party (whether or not of the
same kind or nature as the causes or contingencies above listed) shall not
subject the party so failing to any liability to the other.
Page 3
In the event of BASF's inability, for any reason, to supply the quantities of
Products specified herein, BASF may allocate its available supply among its
purchasers, including departments, divisions and affiliates of BASF, on such
basis as BASF may deem fair and practical.
Assignment
----------
This agreement may not be assigned without the prior written consent of the
non-assigning party.
Exclusive Terms
---------------
This letter contains the entire agreement between the parties regarding the sale
and purchase of Products. Any provisions or conditions (including those
contained in any purchase order or acknowledgement) which are in any way
inconsistent with or in addition to the terms set forth in this letter (except
additional shipping instructions specifying quantity and character of the items
ordered) shall not be binding on either party. No waiver, alteration, or
modification of the foregoing conditions shall be valid unless made in writing
and signed by an authorized representative of each party.
Please sign both copies, and return them to my attention. I will have the copies
signed by BASF and one fully executed copy will be returned to you for your
file. If I do not receive a signed copy by April 15, 1996 subject to extension
by mutual agreement, I will assume that you have decided not to accept our
proposal and this letter shall be null and void. Thank you for the opportunity
to of service.
Very truly yours,
/s/ Xxxxx Xxxxxxxxxxxxxx
Xxxxx Xxxxxxxxxxxxxx
Senior Sales Representative
Page 4
TERMS OF THIS AGREEMENT ARE UNDERSTOOD AND AGREED TO:
WINCUP LP , BASF CORPORATION,
-------------
BUYER SELLER
By: [SIGNATURE APPEARS HERE] By: [SIGNATURE APPEARS HERE]
--------------------------------- --------------------------------
Title: Director, Purchasing Title: DIR. SALES & MKT.
------------------------------ -----------------------------
Date: April 30th, 1996 Date: 5-20-96
------------------------------- ------------------------------
Page 5
[LETTERHEAD OF BASF CORPORATION APPEARS HERE]
April 25, 1996 Polystyrene
Xxxxxx Xxxxxxxx
WINCUP
0000 X. Xxxxxxx Xxxx
Xxxxxxx, Xx 00000
Dear Xxxxxx,
This document will serve as clarification of the agreement between BASF
Corporation and WINCUP Holdings, Inc. to supply 100% of the Polystyrene needs
for the Corte Madera, California manufacturing location. BASF Corporation will
supply Xxxxxx Truck (40,000 LB Minimum) of PS 4600, as well as Truck Load
(42,000 LB Minimum) Boxes of PS 5600 until a suitable replacement can be found.
In response to industry competitive volume allowances or rebates please
deduct [ ] cents per pound from the invoice price, subject to change at the
sole discretion of BASF. These invoices will reflect a [ ] day delay
in the implementation of all market price changes and are to be paid by WINCUP
within [ ] days.
The current invoice price for material delivered in April, 1996 is [ ]
cents per pound for PS 4600 and [ ] cents per pound for PS 5600. These
prices are subject to market conditions and should be held confidential to
WINCUP Holdings, Inc. and BASF Corporation employees.
I hope that this shows our commitment to further this relationship and work
towards a multi-year formal agreement to be put in place by January 1, 1997.
Sincerely,
/s/ Xxxxx Xxxxxxxxxxxxxx
Xxxxx Xxxxxxxxxxxxxx
Senior Sales Representative
CC: Xxxx Xxxxxxx
Xxxxx Xxxxxxx
Xxxxxx Xxxxxxxxxx
Xxxxxx Xxxxx
