Confidential Treatment
EXHIBIT 10.1
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.
AMENDED AND RESTATED
CONTRACT OF SALE
This Amended and Restated Contract of Sale ("Agreement") is entered into as
of November 7, 2003, by and between Chevron Xxxxxxxx Chemical Company LP
("CPChem"), a Delaware limited partnership, and Radnor Chemical Corporation
("RCC"); StyroChem US., Ltd. ("SUS"); StyroChem Canada, Ltd ("SCL"); StyroChem
Finland Oy ("SCF"); WinCup Texas, Ltd. ("WinCup Texas"); and WinCup Holdings,
Inc. ("WinCup") ("RCC", "SUS", "SCF", "WinCup Texas", "WinCup" and "SCL" are
collectively referred to as "Purchaser").
WHEREAS, Chevron Chemical Company LLC, predecessor to CPChem, and RCC, SUS,
SCL and Wincup entered into a certain Styrene Monomer Contract of Sale, dated
December 5, 1996, and amended October 1, 1998 and January 1, 2001 (the "Previous
Agreement").
WHEREAS, CPChem has quantities of Styrene Monomer that it desires to sell
to Purchaser, and Purchaser desires to purchase from CPChem.
WHEREAS, Purchaser and CPChem desire to enter into this Agreement which
will amend and restate, effective as of the date hereof, the Previous Agreement.
NOW, THEREFORE, in consideration of the premises and for the mutual benefit
of the parties as well as for other good and valuable consideration, CPChem and
Purchaser agree as follows:
1. Purchaser desires to purchase from CPChem, solely for Purchaser's use in
the manufacture of styrene derivative products in North America and Europe,
Styrene Monomer meeting the specifications contained in Exhibit A; and CPChem
agrees to supply such Product to Purchaser for that limited purpose.
2. During calendar year 2003, the quantity of Product to be sold and delivered
hereunder shall be 119,000,000 pounds.
During the period January 1, 2004 through December 31, 2006, the quantity
of Product to be sold and delivered hereunder shall be a minimum of 150,000,000
pounds and a maximum of 175,000,000 pounds per calendar year, the exact quantity
within said range at Purchaser's option. For each calendar year thereafter, the
quantity of Product to be sold and delivered hereunder shall be a minimum of
100,000,000 pounds and a maximum of 150,000,000 pounds per calendar year, the
exact quantity within said range at Purchaser's option. Product quantities
delivered during any calendar year in excess of the foregoing maximum amount for
said calendar year will be by mutual agreement of the parties. The foregoing
Product quantities shall be prorated for part calendar years, if any, during the
term of this Agreement. Purchaser shall nominate the quantity of Product within
said range for the calendar year in question by providing CPChem written notice
prior to [ ] of the preceding calendar year.
Notwithstanding anything contained in this Agreement to the contrary, all
pounds of Polystyrene purchased by Purchaser from CPChem or affiliate, up to a
maximum of 20,000,000 pounds per calendar year, shall be deemed to be pounds of
Product purchased hereunder for purposes of the quantity commitment set forth
above.
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3. Unless otherwise agreed by the parties, Product shall be delivered to
Purchaser FOB (as defined in the Texas Uniform Commercial Code) St. Xxxxx,
Louisiana, or other shipping point designated by CPChem ("CPChem Shipping
Point"). Delivery as used herein shall be defined to occur when the Product
passes from CPChem's delivery line at the CPChem Shipping Point into the
transportation equipment.
4. CPChem shall be responsible for arranging for railcar shipments of Product
from St. Xxxxx, Louisiana to Purchaser's facilities in Xxxx Xxxxx, Xxxxx xxx
Xxxxxxxx, Xxxxxx, as designated by Purchaser, and Purchaser shall pay the
Freight Charge (as defined below) with respect to such shipments.
For purposes of this Contract, the "Freight Charge" for railcar shipments
of Product from St. Xxxxx, Louisiana to Purchaser's facilities in Xxxx Xxxxx,
Xxxxx xxx Xxxxxxxx, Xxxxxx shall be [ ] U.S. cents per pound ("cpp") and [ ]
Canadian cents per pound, respectively. These Freight Charges shall be
readjusted on [ ] 2004 and each anniversary thereafter in accordance with
the Rail Cost Adjustment Factor (RCAF), Unadjusted Increase Scale, as published
by the American Association of Railroads. If, however, during the term hereof
there shall cease to be any merchant marketers of Product manufactured in
Sarnia, Ontario, the "Freight Charge" with respect to shipments to Purchaser's
facility in Montreal, Quebec shall be changed to an amount equal to the lowest
rail shipping cost available to Purchaser from the closest merchant marketer of
Product, and subsequently adjusted in accordance with the immediately preceding
sentence.
If Purchaser requests and CPChem agrees to arrange for another delivery
method and/or another CPChem Shipping Point is used, and the costs of shipment
are increased thereby, CPChem may add such additional costs to Purchaser's
invoice as a separate chargeable item.
Notwithstanding the foregoing, Purchaser shall have the option to arrange
for delivery of Product purchased hereunder, in which event there shall be no
freight cost charged to Purchaser with respect to such shipment(s).
5. (a) CPChem shall invoice Purchaser for all shipments of Product made
during a given month at the end of each month.
(b) Payment shall be due for invoiced Product and Purchaser shall pay
CPChem therefor in immediately available U. S. dollars net [ ] days from date of
invoice. Purchaser will make payment by check, except in the case of SCF and SCL
which will make payment by wire transfer.
6. (a) Purchaser shall place firm orders for Product to be shipped by CPChem
at least 30 days prior to the date of a requested shipment. CPChem will accept
reasonable changes in said quantities if advised thereof within 15 days after
the date of initial order placement. CPChem will exert reasonable efforts to
accommodate changes requested by Purchaser within 21 days of the initial order
placement unless said order has been shipped. CPChem shall advise Purchaser of
its inability to fill any order within 5 business days of placement; otherwise
CPChem shall be deemed to have accepted the order. For those purchase orders
where CPChem does not satisfy the conditions thereof for any reason, Purchaser
will have the right to place such orders with a third party. With respect to
such orders placed by Purchaser with a third party (other than orders CPChem
does not satisfy because (i) such order was materially changed by Purchaser more
than 15 days after the initial placement of such order; (ii) such order is in
excess of the "Minimum Reserved Capacity" as specified in Section 6.(b) below;
(iii) CPChem is unable to satisfy such order due to the occurrence of an event
described in Section 16.(a)
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below; or (iv) CPChem does not satisfy such order pursuant to the provisions of
Section 22 (collectively "Exempt Orders")), CPChem will pay to Purchaser an
amount, if any, that Purchaser paid to such third party for such order in excess
of the price that would have been paid to CPChem for such order pursuant hereto
if CPChem had satisfied such order; with the exception of Exempt Orders, such
orders placed by Purchaser with a third party shall be counted for purposes of
Sections 2 and 10, but such orders shall not be eligible for rebates under
Section 10.
(b) During each month of each calendar year of this Agreement, CPChem will
reserve a portion of its manufacturing capacity for purchases of Product by
Purchaser in an amount equal to 1/10th of the quantity to be sold and delivered
for said calendar year as determined under Section 2 above ("Minimum Reserved
Capacity"). Should Purchaser desire to place orders in any month for Product
that in the aggregate exceed the Minimum Reserved Capacity for such month,
CPChem will attempt to satisfy the excess requirement to Purchaser's
satisfaction if in CPChem's reasonable judgment such can be done without
disrupting its manufacturing process and/or create the inability to fulfill
commitments to its other customers.
(c) Purchaser and CPChem may agree from time to time to discuss possible
revisions to the Minimum Reserved Capacity; provided, however, neither CPChem
nor Purchaser will be obligated to agree to any revisions to the Minimum
Reserved Capacity.
7. Performance under this Agreement shall commence on the date first written
above for an initial term ending December 31, 2009, and will continue for
successive annual terms thereafter unless terminated by either party giving the
other at least 12 months prior written notice, which termination shall be
effective at the end of the initial term or any annual extension thereof.
8. Title to the Product and risk of loss therefor shall pass from CPChem to
Purchaser upon tender of delivery of the Product to Purchaser at the CPChem
Shipping Point.
9. The purchase price (in cents per pound) to be paid for each pound of
Product purchased by Purchaser hereunder shall be the "Market Price", less a
"Discount".
(a) For purposes of this Agreement, the "Market Price" shall be calculated
as follows:
Market Price = ([ ] x Styrene Contract) + ([ ] x [Styrene Spot +
[ ] cpp]), where
"Styrene Contract" = most recently settled United States Styrene
Contract price, posted in CMAI's Aromatics Market Report-Price Page
published for the month of delivery, less an adjustment in the amount
of (i) [ ] cpp during the period January 1, 2003 through May 31, 2003
and (ii) [ ] cpp thereafter. If a range is reported, the low end of
the range shall be used ; and
"Styrene Spot" = the United States Styrene Spot price for the month of
delivery as reported in CMAI's Aromatics Market Report-Price Page
published for said month. If a range is reported, the average of the
range will be used.
In no event, however, shall the Market Price for the month of delivery
exceed the value of "Styrene Contract" for said month as determined
above.
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(b) For purposes of this Agreement, the "Discount" shall be calculated as
follows:
(i) When the Market Price is [ ] cpp or above:
Discount = [ ] cpp + [ ] (Market Price - [ ] cpp), but in
no event shall the Discount exceed the greater of:
(aa) [ ] cpp; or
(bb) Market Price - ([{Bz x [ ]} + {Eth x [ ]}] +[ ]),
where
"Bz" = the United States Benzene Contract price for the
month of delivery as reported in CMAI's Aromatics
Market Report-Price Page published for said month. If a
range is reported, the low end of the range shall be
used; and
"Eth" = the U.S. Gulf Coast Ethylene contract price in
cpp (before any discounts), plus a [ ] cpp delivery
charge, plus superfund, if any, for the month of
delivery. The U.S. Gulf Coast Ethylene contract price,
before delivery charges and superfund, shall be deemed
equal to the U.S. Ethylene contract price published for
the month in question in CMAI's month-end Monomers
Market Report, and shall be the low-end of the values
if a range is published.
(ii) When Market Price is greater than [ ] cpp but less than
[ ] cpp:
Discount = [ ] cpp
(iii) When Market Price is less than or equal to [ ] cpp:
Discount = [ ] cpp - [ ]([ ] cpp - Market Price), but in no
event shall the Discount be less than [ ] cpp or more than [ ]
cpp.
In the event that any of the foregoing reference publications cease to
exist or contain any of the data necessary to determine the reference
price(s) in question, or if any of the publications change the basis for
determination of any of such data in a manner which is adverse to either of
the parties hereunder, then the reference price in question will be based
on such alternative index as most closely approximates the applicable index
as constituted on the date of this Contract and is reasonably acceptable to
Purchaser and CPChem.
(c) The purchase price shall be adjusted each month during the term of
this Agreement based upon the changes in the Market Price and the factors used
in determining the Discount.
10. (a) During the period January 1, 2003 through December 31, 2003, upon the
purchase of a minimum 119,000,000 pounds of Product, and provided Purchaser has
complied with its obligations hereunder, including, but not limited, making
payments when due pursuant to Section 5 above, Purchaser shall be eligible for a
rebate in the amount of [ ] cpp on all pounds of Product purchased during said
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calendar year. This rebate may be provisionally extended in the form of a credit
issued to Purchaser's account at the end of each calendar month on all pounds of
Product purchased during said month. In the event Purchaser fails to purchase
the requisite 119,000,000 pounds of Product during calendar year 2003, CPChem
shall adjust Purchaser's account for the provisionally extended rebate which
Purchaser received but failed to qualify for.
(b) During the period January 1, 2004 through December 31, 2006, upon the
purchase of a minimum of 150,000,000 pounds of Product during any calendar year,
and provided Purchaser has complied with its obligations hereunder, including,
but not limited to, making payments when due pursuant to Section 5 above,
Purchaser shall be eligible for a rebate in the amount of [ ] cpp on all pounds
of Product purchased during said calendar year.
If at the end of any calendar quarter ("Test Quarter") during the calendar
year in question, Purchaser meets the minimum year-to-date ("Y/D") purchase
requirements for said Test Quarter in accordance with Schedule A below, the
foregoing rebate may be provisionally extended to Purchaser on all purchases
made during the immediately succeeding calendar quarter ("Succeeding Quarter").
Said provisional rebate will be extended at the end of each month during the
Succeeding Quarter in the form of a credit issued to Purchaser's account.
Schedule A
----------
Calendar Quarter (Q) Minimum Y/D Requirements
-------------------- ------------------------
1st Q 37,500,000 pounds
2nd Q 75,000,000 pounds
3rd Q 112,500,000 pounds
4th Q 150,000,000 pounds
If Purchaser fails to meet the minimum Y/D purchase requirements during any
Test Quarter, Purchaser shall not receive the monthly provisional rebate during
the Succeeding Quarter. Thereafter if Purchaser meets the minimum Y/D purchase
requirements for a subsequent Test Quarter during the calendar year in question,
Purchaser shall receive the monthly provisional rebate during the Succeeding
Quarter on Product purchases during the Succeeding Quarter as described above.
In addition, at the beginning of the Succeeding Quarter, Purchaser shall receive
a provisional rebate on all Product purchases during the previous Succeeding
Quarter(s) of the calendar year in question which were not eligible for the
provisional rebate because of Purchaser's failure to meet the minimum Y/D
Requirements according to Schedule A.
In the event Purchaser fails to purchase the requisite 150,000,000 pounds
during the calendar year in question, CPChem shall adjust Purchaser's account
for the provisionally extended rebate which Purchaser received but failed to
qualify for.
Notwithstanding anything contained in this Agreement to the contrary,
Product purchases hereunder during any calendar year in excess of 175,000,000
pounds will not be eligible for a rebate under this Section 10.
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(c) Effective January 1, 2007, upon the purchase of a minimum of
100,000,000 pounds of Product during any calendar year, and provided Purchaser
has complied with its obligations hereunder, including, but not limited to,
making payments when due pursuant to Section 5 above, Purchaser shall be
eligible for a rebate in the amount of [ ] cpp on all pounds of Product
purchased during said calendar year.
If at the end of any calendar quarter ("Test Quarter") during a calendar
year, Purchaser meets the minimum year-to-date ("Y/D") purchase requirements for
said Test Quarter in accordance with Schedule B below, the foregoing rebate may
be provisionally extended to Purchaser on all purchases made during the
immediately succeeding calendar quarter ("Succeeding Quarter"). Said provisional
rebate will be extended at the end of each month during the Succeeding Quarter
in the form of a credit issued to Purchaser's account.
Schedule B
----------
Calendar Quarter (Q) Minimum Y/D Requirements
-------------------- ------------------------
1st Q 25,000,000 pounds
2nd Q 50,000,000 pounds
3rd Q 75,000,000 pounds
4th Q 100,000,000 pounds
If Purchaser fails to meet the minimum Y/D purchase requirements during any
Test Quarter, Purchaser shall not receive the monthly provisional rebate during
the Succeeding Quarter. Thereafter if Purchaser meets the minimum Y/D purchase
requirements for a subsequent Test Quarter during the calendar year in question,
Purchaser shall receive the monthly provisional rebate during the Succeeding
Quarter on Product purchases during the Succeeding Quarter as described above.
In addition, at the beginning of the Succeeding Quarter, Purchaser shall receive
a provisional rebate on all Product purchases during the previous Succeeding
Quarter(s) of the calendar year in question which were not eligible for the
provisional rebate because of Purchaser's failure to meet the minimum Y/D
Requirements according to Schedule B.
In the event Purchaser fails to purchase the requisite 100,000,000 pounds
during the calendar year in question, CPChem shall adjust Purchaser's account
for the provisionally extended rebate which Purchaser received but failed to
qualify for.
Notwithstanding anything contained in this Agreement to the contrary,
Product purchases hereunder during any calendar year in excess of 150,000,000
pounds will not be eligible for a rebate under this Section 10.
(d) Product purchases hereunder by each Purchaser during the calendar year
in question shall be totaled together for purposes of determining whether
Purchaser is eligible for a rebate hereunder. Credits for such rebate shall be
issued to Purchaser based upon Purchaser's actual purchases during said calendar
year.
(e) Notwithstanding anything contained in this Agreement to the contrary,
all pounds of Polystyrene purchased from CPChem and it affiliates during the
calendar year in question by each Purchaser shall be totaled together, and shall
be deemed Product purchases for purposes of determining whether Purchaser is
eligible for a rebate hereunder (provided that in the event Purchaser purchases
in
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excess of 20,000,000 pounds of Polystyrene during a calendar year, then only
20,000,000 pounds of Polystyrene shall be applied to determine Purchaser's
eligibility for a rebate in that calendar year). Said Polystyrene purchases,
however, shall not be eligible for any rebates under this Agreement.
11. In addition to the price provided herein, Purchaser shall pay CPChem an
amount equal to any tax, duty (including dumping duty), or other charge
(including Superfund levies or the like), unless measured by net income,
assessed on CPChem and related to sales made pursuant to this Agreement or to
the transportation, production, or use of the Product or source materials
thereof. 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.
12. (a) CPChem warrants that, at the time of delivery, the Product will meet
the specifications in Exhibit A in all material respects.
(b) EXCEPT AS SET FORTH IN SECTION 12.(a) ABOVE, CPCHEM DOES NOT MAKE, AND
EXPRESSLY DISCLAIMS, AND PURCHASER EXPRESSLY WAIVES ANY OTHER WARRANTIES,
INCLUDING WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE,
REGARDLESS OF WHETHER ORAL OR WRITTEN, EXPRESS OR IMPLIED, OR ALLEGEDLY ARISING
FROM ANY USAGE OF ANY TRADE OR FROM ANY COURSE OF DEALING.
(c) PURCHASER'S SOLE AND EXCLUSIVE REMEDIES FOR LOSS, DAMAGE OR EXPENSE
INCURRED BY PURCHASER (EITHER DIRECTLY OR AS RESULT OF ANY CLAIMS OR ACTIONS
AGAINST PURCHASER BY ANY THIRD PARTY) BASED ON OR DUE TO BREACH OF CPCHEM'S
WARRANTY HEREUNDER ARE AS FOLLOWS:
(i) With respect to any and all claims, damages, liabilities, costs
and expense, including court costs and attorneys fees, incurred by Purchaser
based upon, arising out of or otherwise in respect of any breach of warranty
made by CPChem in Section 12.(a) above, CPCHEM, AT PURCHASER'S OPTION, WILL
REPLACE THE NONCONFORMING PRODUCT OR REFUND THE PURCHASE PRICE FOR SUCH PRODUCT.
IN ADDITION, CPCHEM SHALL REIMBURSE PURCHASER FOR ITS OUT OF POCKET COSTS AND
EXPENSES RELATED TO SUCH BREACH OF WARRANTY, INCLUDING LABOR, MATERIAL, AND
OTHER OUT OF POCKET COSTS INCURRED BY PURCHASER IN CONNECTION WITH THE
REPLACEMENT OF EPS PRODUCT MANUFACTURED BY PURCHASER USING NONCONFORMING
PRODUCT, UP TO A MAXIMUM AMOUNT EQUAL TO 100% OF THE PRODUCT PURCHASE PRICE WITH
RESPECT TO WHICH SUCH BREACH OF WARRANTY CLAIM RELATES. IN NO EVENT SHALL
CPCHEM'S TOTAL LIABILITY HEREUNDER WITH RESPECT TO DAMAGES INCURRED DIRECTLY BY
PURCHASER EXCEED THE FOREGOING.
(ii) With respect to any and all claims or actions of third parties
against Purchaser based upon, arising out of or otherwise in respect of any
breach of any warranty made by CPChem in Section 12.(a) above, CPChem agrees to
indemnify Purchaser pursuant to Section 14 below.
13. NOTWITHSTANDING ANYTHING CONTAINED IN THIS AGREEMENT TO THE CONTRARY, IN NO
EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY (a) LOST PROFITS
OR (b) ANY INDIRECT, INCIDENTAL (EXCEPT OUT OF POCKET COSTS AND EXPENSES
ADDRESSED SECTION 12 ABOVE), CONSEQUENTIAL, SPECIAL, CONTINGENT, EXEMPLARY OR
PUNITIVE DAMAGES, INCURRED BY THE OTHER PARTY, WHETHER BASED IN CONTRACT, TORT
(INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE.
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14. CPCHEM AGREES TO INDEMNIFY AND HOLD PURCHASER HARMLESS FROM AND AGAINST ANY
CLAIM, SUIT, JUDGMENT, DAMAGE, COST OR EXPENSE, INCLUDING REASONABLE ATTORNEYS'
FEES, ASSERTED BY A "THIRD PARTY" (AS DEFINED BELOW) AGAINST PURCHASER TO THE
EXTENT SUCH ARISES OUT OF "CPCHEM'S RESPONSIBILITY" (AS DEFINED BELOW).
PURCHASER AGREES TO INDEMNIFY AND HOLD CPCHEM HARMLESS FROM AND AGAINST ANY
CLAIM, SUIT, JUDGMENT, DAMAGE, COST OR EXPENSE, INCLUDING REASONABLE ATTORNEYS'
FEES, ASSERTED BY ANY THIRD PARTY AGAINST CPCHEM TO THE EXTENT SUCH ARISES OUT
OF "PURCHASER'S RESPONSIBILITY" (AS DEFINED BELOW). As used herein, the term
"Third Party" with respect to any party shall include employees, contractors and
agents of such party, but shall not include any parent, subsidiary or affiliated
company of such party that is more than fifty percent (50%) owned (directly or
indirectly) by such party or such party's ultimate parent company. As used
herein, the term "CPChem's Responsibility" shall mean (a) any failure of Product
to conform to the specifications provided in Exhibit A when delivered to
Purchaser and (b) all risk with respect to the handling and use of Product prior
to delivery to Purchaser. As used herein, the term "Purchaser's Responsibility"
shall mean all risk with respect to the handling and use of Product after
delivery to Purchaser other than any risk arising from CPChem's Responsibility.
15. (a) Product may be or become hazardous. Purchaser acknowledges that it is
familiar with, and shall take all steps necessary to inform, warn, and
familiarize its employees, agents, customers, and contractors who may handle the
Product, of all hazards pertaining to and proper procedures for safe use of the
Product and of the containers or equipment in which the Product may be handled,
shipped, or stored. Purchaser also undertakes to label as appropriate any
materials which it makes or resells that include Product.
(b) PURCHASER SHALL INDEMNIFY, DEFEND, AND HOLD CPCHEM HARMLESS FROM AND
AGAINST ANY CLAIM, LIABILITY, OR EXPENSE, INCLUDING, BUT NOT LIMITED TO, INJURY
OR DEATH OF PURCHASER'S EMPLOYEES, DIRECTLY OR INDIRECTLY ARISING FROM
PURCHASER'S FAILURE TO SO INFORM, WARN, AND FAMILIARIZE ITS EMPLOYEES, AGENTS,
CUSTOMERS, AND CONTRACTORS, EXCEPT TO THE EXTENT THAT THE CLAIM, LIABILITY, OR
EXPENSE IS CAUSED BY THE FAILURE OF THE PRODUCT TO MEET THE SPECIFICATIONS IN
EXHIBIT A WHEN DELIVERED TO PURCHASER; AND THESE UNDERTAKINGS APPLY IN FULL
MEASURE WHETHER OR NOT IT IS ALLEGED OR PROVED THAT CPCHEM WAS ACTIVELY OR
PASSIVELY NEGLIGENT OR AT FAULT OR LIABILITY WITHOUT FAULT IS SOUGHT TO BE
IMPOSED ON CPCHEM. EXPENSES AS USED HEREIN SHALL INCLUDE REASONABLE ATTORNEYS'
FEES.
16. (a) Neither party shall be in breach of its obligations hereunder to the
extent that performance is prevented or delayed by (i) any cause beyond the
reasonable control of the party concerned, including, but not limited to,
shortage in raw material, transportation, power, manufacturing capacity, etc.,
or the Product itself from CPChem's then-contemplated source of supply; (ii)
labor disturbance, whether or not 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; or (iii) compliance with a request or order of a
person purporting to act on behalf of any government or governmental department
or agency (including but not limited to EPA and OSHA).
(b) Whenever performance is so affected by such a contingency, CPChem may
reduce deliveries in a manner that fairly apportions the consequences of the
contingency among all CPChem's customers (including affiliates or internal
needs). CPChem shall not be required to purchase Product from third parties in
order to comply with this Section but CPChem may do so in its sole discretion.
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(c) Performance will be excused as provided above even though the
occurrence of the contingency in question may have been foreseen or foreseeable
at the time of contracting or may subsequently become foreseeable.
(d) Quantities not purchased or sold due to the provisions of the Section
need not be made up later.
(e) If any law, regulation, or other governmental action requires CPChem
to reduce any price in effect under this Agreement or prevents CPChem from
increasing the price pursuant to Section 9 above, CPChem may cancel from this
Agreement the quantities of Product so affected.
(f) Nothing in this Section shall excuse Purchaser from its obligations to
make payments when due.
17. This Agreement, together with Exhibit A attached hereto, supersedes all
prior understanding, drafts, discussions, or statements, whether oral or in
writing, express or implied, dealing with the same subject matter. It
constitutes a final written expression of all of the terms of this Agreement and
is a complete and exclusive statement of those terms. It may not be amended or
modified in any manner except by a written agreement signed by both parties that
expressly amends this Agreement. Further, the provisions of this Agreement will
take precedence over, govern and control any purchase order, sales
acknowledgement, invoice or other writing between the CPChem and Purchaser
despite subsequent issuance, it being agreed and understood, without limitation,
that any pre-printed terms and conditions appearing on any other writing,
communication or transmittal between CPChem and Purchaser pertaining to the
subject matter of this Agreement will be null and void and have no force or
effect. No delay on the part of a party in exercising any right, power or
privilege hereunder shall operate as a waiver thereof, nor shall any waiver on
the part of either party of any such right, power or privilege, or any single or
partial exercise of any such right, power or privilege, preclude any further
exercise thereof or the exercise of any other such right, power or privilege.
18. No rights or obligations under this Agreement may be assigned without the
prior written consent of the other party.
19. ANY QUESTIONS CONCERNING THE INTERPRETATION AND ENFORCEMENT OF THIS
AGREEMENT SHALL BE GOVERNED BY THE DOMESTIC LAW OF THE STATE OF TEXAS, WITHOUT
REGARD TO THE PRINCIPLES OF THE CONFLICTS OF LAWS.
20. Neither party shall give any director, employee, or representative of the
other party any commission, fee, rebate, gift, or entertainment of significant
cost or value in connection with this Agreement or enter into any other business
arrangement with any director, employee, or representative of the other, without
prior written notification to the other party. Any representative(s) authorized
by either party may cause an audit of any and all records of the other party as
necessary and proper to verify that there has been compliance with this Section.
21. All notices, requests, demands, and other communications required or
permitted to be given or made hereunder by any party hereto shall be in writing
and shall be deemed to have been duly given if delivered personally or
transmitted by first class registered or certified mail, postage prepaid, return
receipt requested, or sent by prepaid overnight delivery service, or sent by
cable, telegram, or facsimile
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to the parties at the following addresses (or at such other addresses as shall
be specified by the parties by like notice):
If to CPChem: If to Purchaser:
00000 Xxx Xxxxx Xxxxx x/x XxxXxx
Xxx Xxxxxxxxx, XX 00000 0 Xxxxxx Xxxxxxxxx Xxxxxx, Xxxxx 000
Attention: Xxxxxx Xxxxxx Xxxxxx, Xxxxxxxxxxxx 00000
Facsimile: (000) 000-0000 Attention: Xxxxxxx X. Xxxxxxx
Facsimile: (000) 000-0000
22. (a) Notwithstanding anything contained in this Agreement to the contrary,
if during the term of this Agreement, Purchaser is past due in payment of any
amount owing to CPChem, CPChem reserves the right, without liability and without
prejudice to any other remedies afforded under this Agreement or by operation of
law or equity, to implement one or more of the following actions:
(i) reduce the quantity of Product shipped hereunder;
(ii) require Purchaser to make payment on a C.O.D. basis; and/or
(iii) entirely suspend its performance under this Agreement,
including, without limitation, decline to ship Product and/or stop any Product
shipments in transit
(individually referred to as "Action"), until payment of all amounts then due
CPChem have been received by CPChem. CPChem shall provide at least 5 days
written notification to Purchaser prior to taking any of the foregoing
Action(s).
(b) In addition to and notwithstanding the above, in the event either
party (each, a "Breaching Party") breaches a material obligation hereunder and
such breach continues uncured for a period of 30 days after written notice of
such breach from the other party (the "Non-breaching Party"), then the
Non-breaching Party shall have the right to terminate this Agreement upon
written notice to the Breaching Party.
(c) In addition to and notwithstanding the above, if during the term of
this Agreement, CPChem, in its sole judgment, reasonably exercised, determines
that the financial responsibility of the Purchaser has become impaired or
unsatisfactory to a level that CPChem has reasonable concern that Purchaser will
not be able to make the payments coming due hereunder, then CPChem reserves the
right, without liability and without prejudice to any other remedies afforded
under this Agreement or by operation of law or equity, to require Purchaser to
make payment on a C.O.D. basis until CPChem, in its sole judgment, reasonably
exercised, determines that the financial responsibility of Purchaser has
returned to a level where CPChem no longer has reasonable concern that Purchaser
will not be able to make payments coming due hereunder. CPChem shall provide at
least 5 days written notification prior to taking any action under this
Paragraph (c). In the event CPChem places Purchaser on a C.O.D. basis in
accordance with this Paragraph, Purchaser shall have the right to purchase
Product elsewhere for so long as it remains on a C.O.D. basis and all such
Product purchases shall be deemed to have been purchased from CPChem for
purposes of determining whether Purchaser (i) has purchased the quantity of
Product required to be purchased pursuant to Section 2 above; and (ii) is
eligible for a rebate
10 of 12
hereunder (although no rebate shall be paid to Purchaser with respect to such
Product quantities themselves).
23. Purchaser shall provide CPChem with monthly and quarterly financial
statements including income statement, balance sheet and cash flow analysis.
Purchaser shall provide CPChem with audited financial statements annually. In
addition, Purchaser shall provide a monthly statement of its borrowing amount
committed by banks or other lenders including the amount currently available for
borrowing by the Purchaser.
24. The obligations of the parties under this Agreement which by their nature
would continue beyond the termination, cancellation, or expiration of this
Agreement, including, without limitation the obligations contained in Section
25, will survive termination, cancellation or expiration of this Agreement. Any
such termination shall be without prejudice to any claims of either party
against the other which shall have accrued prior to the date of termination.
25. In consideration for entering into this Agreement and the provisions
hereof, including without limitation, the extended term, pricing provisions and
minimum purchase quantities, and the release of any and all disputed claims,
Purchaser has agreed to pay to CPChem the amount of [ ].
Purchaser shall pay CPChem said amount in accordance with the following
payment schedule: (i) [ ] upon execution of this Agreement by all parties; and
(ii) the remaining balance on or before December 31, 2003.
Purchaser may not set off any loss, damage, liability or claim which it may
have against CPChem under this Agreement or any other agreement, against payment
it owes to CPChem under this Section 25. Payment under this Section 25 shall be
made without protest of any kind.
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In WITNESS WHEREOF, each of the parties has caused this Agreement to be executed
on its behalf by its representatives thereunto duly authorized, all as of the
date set forth above.
Radnor Chemical Corporation Chevron Xxxxxxxx Chemical Company
LP
By: /s/ Xxxxxxx X. Xxxxxxx By: /s/ X.X. Xxxxxx
----------------------------------- --------------------------------
Title: Chairman Title: Senior Vice President
-------------------------------- -----------------------------
Date: Oct. 30, 2003 Date: November 7, 2003
--------------------------------- ------------------------------
StyroChem U.S., Ltd.
By: StyroChem GP, LLC, its general partner
By: Radnor Chemical Corp., its sole member StyroChem Canada, Ltd.
By: /s/ Xxxxxxx X. Xxxxxxx By: /s/ Xxxxxxx X. Xxxxxxx
----------------------------------- --------------------------------
Title: Chairman Title: President
-------------------------------- -----------------------------
Date: Oct. 30, 2003 Date: Oct. 30, 2003
--------------------------------- ------------------------------
WinCup Texas, Ltd.
StyroChem Finland Oy By: WinCup Holdings, Inc., its
general partner
By: /s/ Xxxxxxx X. Xxxxxxx By: /s/ Xxxxxxx X. Xxxxxxx
----------------------------------- --------------------------------
Title: Chairman Title: President
-------------------------------- -----------------------------
Date: Oct. 30, 2003 Date: Oct. 30, 2003
--------------------------------- ------------------------------
WinCup Holdings Inc.
By: /s/ Xxxxxxx X. Xxxxxxx
-----------------------------------
Title: President
--------------------------------
Date: Oct. 30, 2003
---------------------------------
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EXHIBIT A
[LOGO OF CHEVRON U.S. CHEMICALS APPEARS HERE]
X.X. Xxx 0000
Xxxxxxx, XX 00000
TECHNICAL DATA SHEET
CHEVRON STYRENE MONOMER
SALES SPECIFICATION (b)
------------------------- TYPICAL
SPECIFICATION PROPERTIES TEST METHOD MINIMUM MAXIMUM VALUES (b)
------------------------------ ----------------- ----------- ----------- -----------
Purity, Wt. % ASTM D-5135 99.90 -- 99.93
Ethylbenzene, ppm ASTM D-5135 -- 85 45
Color ASTM D-1209 -- 10 8
Polymer Content, ppm ASTM D-2121 -- 10 1
Inhibitor (t-Butyl Catechol):
ppm (a) ASTM D-4590 00 00 00
Xxxxxxxxx
(xx Xxxxxxxxxxxx), ppm ASTM D-2119 -- 200 20
Peroxides (as H/2/O/2/), ppm ASTM D-2340 -- 100 5
Benzene, ppm ASTM D-3962M -- 1 less than 1
TYPICAL PROPERTIES
------------------
Chlorides, ppm Chevron SM-350-16 -- -- less than 1
Sulfur, ppm Chevron SM-350-16 -- -- less than 1
Flash, TCC, degrees C, ASTM D-56 -- -- 31
(degrees F) (88)
(a) Applies to all methods of shipments unless additional inhibitor is
specified.
(b) Subject to change without notice.
