Confidential Treatment
EXHIBIT 10.15
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.
SALES AGREEMENT
Contract Number PS96017 - A
Between
Fina Oil and Chemical Company (Seller)
and
Wincup Corporation, LP (Buyer)
Buyer agrees to purchase from Seller, and Seller agrees to sell to Buyer, upon
the following terms and conditions recited herein and in Addendum A, attached:
TERM: January 1, 1996 through December 31, 1996
PRODUCTS: 740, 825E, 825EX or other mutually agreeable FINA Polystyrene
products.
QUALITY: Per attached data sheets.
QUANTITY:
Minimum Pounds - 5,000,000 lbs. per year
Maximum Pounds - 10,000,000 lbs. per year
Buyer agrees to provide reasonable notice on shipment dates.
Seller will not be required to deliver to Buyer in any month a
volume exceeding one twelfth (1/12) of the annual contract
maximum.
PRICE: Seller's Market Price at the time of shipment as specified in
price announcements to Buyer, FOB origin, minimum freight
prepaid, for use in Buyer's facilities at West Chicago, IL;
Corte Madera, CA.; Stone Mountain, GA; or other mutually agreed
to site(s). The current price to Buyer as of 2/1/96 is [ ] per
pound for xxxxxx cars or bulk trucks of 740, 825E, or 825EX to
West Chicago, IL or xxxxxx cars to Stone Mountain, GA. West
Coast shipments will receive an upcharge of $[ ] per pound for
bulk trucks.
The above price is for delivery in xxxxxx cars of approximately
190,000 pounds each and bulk trucks of approximately 47,000
pounds each.
During the term of this Agreement, if the cumulative increase of
Gulf Coast producer's contract price for Styrene Monomer exceeds
the cumulative increase of Seller's Polystyrene price during any
period of sixty (60) days, Seller reserves the right to
renegotiate any and all of the terms and conditions of this
Agreement.
PRICE
PROTECTION: In the event of a Polystyrene market increase, Seller will allow
a [ ] day price protection period, or a [ ] day pre-buy period
at Seller's option, from the effective date of the increase for
a volume not to exceed 1/12 of the Buyer's previous twelve (12)
months purchases.
PAYMENT
TERMS: Net [ ] days from SHIPPING/INVOICE DATE. All payments
are due and payable at Seller's offices, 0000 Xxxxx Xxxxxxx
Xxxxxxxxxx, Xxxxxx, Xxxxxx Xxxxxx, Xxxxx 00000 or as
otherwise directed by Seller. Any invoices not paid within
seven (7) days of contract terms will exclude the pounds
covered by that invoice from calculating any competitive
volume incentive. The parties agree that all payments still
owing ten (10) days after the due date of invoice will bear
interest at the rate of one (1.0) percent per month, but in
no event shall interest in excess of the amount allowed by
law be charged.
COMPETITIVE
OFFERS: If, during the term of this Agreement, Buyer receives a bona
fide offer allowing Buyer to purchase materials of similar
quantity and quality, and at similar terms and conditions
for the same time period, at a lower net price, upon
submission of a letter from Buyer to Seller stating the
competitor offered price, quantity, quality, and terms and
conditions of purchase, Seller will, at its option, (i) meet
the lower price or (ii) permit the Buyer to purchase from
the competition and exclude the pounds purchased from the
contract quantity.
COMPETITIVE
INCENTIVE: Because of the competitive situation that exists in Buyer's
market, the following incentives will apply as indicated,
provided Buyer's annualized purchases meet or exceed the
minimum annual quantities specified in this Agreement.
Level 1, "Off-Invoice Incentive": Fina will deduct an "off-
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invoice incentive" of $[ ] per pound on the invoice on all
prime pounds of FINA Polystyrene purchased during the
contract period.
Xxxxx 0, "Quarterly Incentive": At the end of each calendar
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quarter, FINA will pay an incentive to Wincup of $[ ] per
pound for all pounds of prime FINA Polystyrene purchased by
Buyer during the quarter. FINA will pay this rebate within
thirty (30) days after all invoices for the quarter have
been paid.
Xxxxx 0, "Annual Incentive": At the termination of this
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Agreement, FINA will pay a rebate to Wincup of $[ ] per
pound for all prime pounds of FINA Polystyrene purchased by
Wincup during the contract term, provided that a minimum of
5,000,000 pounds of prime FINA Polystyrene is purchased
during the term of the Agreement. FINA will pay this
incentive within thirty (30) days after all invoices for the
contract year have been paid.
ADDENDUM: Addendum "A" is attached hereto and incorporated herein.
This Agreement not valid unless signed by an authorized
representative of both Buyer and Seller.
Buyer's Acceptance: Seller's Acceptance:
By: /s/ Xxxxxx X. Xxxxxxxx By: /s/ Xxxx X. Xxxx
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Title: Director Purchasing Title: General Manager, Styrenics
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Date: 5/15/96 Date: 5/21/96
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This offer expires if not signed by Buyer and returned to Seller by March 31,
1996.
ADDENDUM "A"
1. SAFETY AND HEALTH COMMUNICATIONS
--------------------------------
A. SELLER will furnish to BUYER Material Safety Data Sheets which contain
health, safety and other hazard communication information on the
Materials consistent with the Occupational Safety and Health
Administration's Hazard Communications Standard. SELLER will also
furnish other health or safety information as available. BUYER will
disseminate appropriate health and safety information to all persons
that may be exposed to the Materials supplied hereunder (including
without limitation, BUYER'S employees, contractors or customers),
whether such Material is in its present state or subsequently processed,
mixed or incorporated into another Material.
B. BUYER agrees to instruct its employees and agents in the proper and safe
handling and disposal of the Materials.
2. LIABILITY AND INDEMNITY
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A. Risk of loss and title passes from SELLER to BUYER when shipment is
delivered to carrier. BUYER assumes all responsibility and liability of
SELLER for injury, loss or damage resulting from handling, resale, use
or misuse of the Materials after delivery to carrier. SELLER'S liability
and BUYER'S exclusive remedy for any claims arising out of this
Agreement are expressly limited at BUYER'S option to replacement of
nonconforming goods or payment not to exceed the purchase price plus
transportation charges thereon with respect to any Materials for which
damages are claimed. Claims on the gross weight of bulk shipments will
not be allowed.
B. BUYER agrees to hold harmless and indemnify SELLER from all persons
against any claims on any theory of legal liability (whether strict or
otherwise), including negligence, for any claim, loss or expense on
account of any injury, disease or death of persons (including BUYER'S
employees), loss or damage to property (including BUYER'S) arising out
of failure by BUYER to properly handle, sell or use the Material or to
disseminate safety and health information as provided in paragraph 1.
C. SELLER agrees to defend at its expense and to hold BUYER harmless
against any suit founded on a claim that the Materials delivered
hereunder infringe any U.S. Letters Patent, and SELLER agrees to
indemnify BUYER from any such judgments and costs resulting from any
such suit. SELLER does not agree to defend or to hold BUYER harmless
against suit founded on a claim of infringement of any U.S. Letters
Patent covering the use of the Materials delivered hereunder in
combinations with another material or in the practice of any process.
D. EXCEPT FOR OBLIGATIONS COVERED BY PARAGRAPH 2.C, SELLER'S ENTIRE
LIABILITY FOR DAMAGES FOR ANY CAUSE WHATSOEVER, REGARDLESS OF THE FORM
OF ACTION, SHALL BE LIMITED TO BUYER'S ACTUAL DIRECT DAMAGES NOT TO
EXCEED THE AMOUNT PAID TO SELLER HEREUNDER FOR THE MATERIAL RELATED TO
THE CAUSE OF ACTION. IN NO EVENT SHALL SELLER, ITS OFFICERS, AGENTS OR
EMPLOYEES BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY
LEGAL OR EQUITABLE THEORY, INCLUDING WHETHER BASED UPON NEGLIGENCE OR
STRICT LIABILITY, FOR LOST PROFITS, SPECIAL, INCIDENTAL, CONSEQUENTIAL
OR PUNITIVE DAMAGES.
3. WARRANTY
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SELLER makes no warranty, express or implied, concerning the Materials
furnished hereunder other than that they shall be of the quality and
specifications stated herein. SELLER MAKES NO OTHER WARRANTIES OF ANY KIND,
INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR ANY
PARTICULAR PURPOSE. Any recommendations made by SELLER concerning uses or
applications of said Materials are believed reliable but SELLER makes no
warranty of results to be obtained. BUYER ASSUMES ALL RESPONSIBILITY AND
LIABILITY FOR INJURY, LOSS OR DAMAGE RESULTING AFTER DELIVERY OF MATERIAL.
4. FORCE MAJEURE
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Except as to payments hereunder, a party shall be relieved from liability
for delay in performance or nonperformance caused by circumstances beyond
its control, including without limitation, strike, fire, riot, war, acts of
God, governmental laws, regulations or requests, failure or shortage of or
inability to obtain materials, equipment or transportation normally
available from the source of supply. The affected party may omit purchases
or deliveries during the period of continuance of such circumstances and the
contract quantities shall be reduced by the quantities so omitted. In no
event shall SELLER be required to purchase products or materials from others
in order to deliver Material to BUYER.
5. OTHER
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This instrument constitutes the entire Agreement between the parties and
supersedes any prior or contemporanous Agreements and understandings,
whether oral or written. This Agreement may not be amended except by written
instrument executed by each of the parties hereto. Waiver by either party of
any breach or failure to enforce any of the provisions of this Agreement at
any time shall not in any way affect, limit or waive the right of the party
thereafter to enforce the Agreement and compel strict compliance with each
and every provision. Any action against SELLER under this Agreement or
related to its subject matter must be brought within one (1) year after the
cause of action accrues. This Agreement may not be transferred or assigned
without SELLER'S written consent. This Agreement shall be governed and
construed in accordance with the internal laws of the State of Texas,
including the Texas Business and Commerce Code, Uniform Commercial Code.
