EXHIBIT 10.21
Universal Stainless & Alloy Products Sales Agreement
This AGREEMENT is made and entered into as of the 1st day of July ,
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2001, by and between UNIVERSAL STAINLESS & ALLOY PRODUCTS, INC., a Delaware
corporation (hereinafter "Universal") and TALLEY METALS TECHNOLOGY, a Carpenter
Company (hereinafter "Talley Metals").
WITNESSETH:
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WHEREAS, Talley Metals desires to insure a supply of billets for use in its
rolling and finishing operations; and
WHEREAS, Universal desires to sell billets and allocate a portion of its monthly
capacity to manufacture billets on a continuing basis;
NOW, THEREFORE, Universal and Talley Metals the ("Parties" or separately
"Party"), intending to be legally bound, in consideration of the premises and
the mutual covenants and agreements contained herein, agree as follows:
1. BILLET QUANTITIES During the term of this Agreement, Universal shall sell
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to Talley Metals and Talley Metals shall purchase from Universal, stainless
steel billets (hereinafter the "Billets") in an aggregate quantity, of no
less than two million (2,000,000) pounds and no more than six million
(6,000,000) pounds per month. On an annual basis Talley Metals purchases
from Universal will average two million five hundred thousand pounds
(2,500,000) pounds per month .
2. RESERVED CAPACITY Universal will set aside such capacity as necessary to
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produce the billet quantities as ordered during the first week in any month
for a shipment in the subsequent month, according to the terms of this
Agreement. Talley Metals will give as much advanced notice as possible if
the order quantity will vary significantly from month to month. Reserved
capacity is based on heat-lot quantities. If product is rejected by
Universal during processing, the order will be considered complete based on
the shipped weight.
3. BILLET SIZES AND SPECIFICATIONS The Billets shall be provided by Universal
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in the sizes and grades requested by Talley Metals' purchase orders and
"Stainless grades" regularly produced by Universal and requested in
accordance with the specifications set forth by Talley Metals and previously
approved by Universal. The Billets shall be square, with rounded corners, in
thickness of four and one-half (4.5") to eight (8") inches by ten (10")
inches, and shall be delivered in such lengths as Talley Metals shall
specify in its monthly purchase orders, but in no event shorter than twenty-
two feet (22') or longer than forty feet (40').
Universal represents and warrants to Talley Metals that the Billets
delivered by Universal pursuant to this Agreement have been produced in
accordance with good mill practice with respect to dimensions, weight,
straightness,
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section, composition and mechanical properties and has been inspected to
assure Billets will meet all applicable standard industry specifications and
all of the specifications set forth in this Agreement and Talley Metals
purchase orders.
4. BILLET PRICES Pricing will be based on Universal's offering to Talley
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metals dated 5/28/98 and 6/1/98. Exhibit "A" of this Agreement. Monthly
adjustments to that offering will be made to address market changes in key
raw material prices per existing formulas.
Any price changes, outside established formulas to adjust for raw material
price fluctuation, must be negotiated in good faith and agreed to in
writing by both parties prior to implementation and be consistent with
market conditions and price changes then common in the industry.
5. BILLET ORDER; DELIVERY
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(a) Talley Metals will place orders in heat lot quantities specifying grade,
billet size, and requested delivery on their standard purchase order form.
Orders will be acknowledged by Universal on their standard acknowledgement
form.
(b) The parties acknowledge that this Agreement has been entered into with the
intention that Universal shall retain the capacity needed to supply Talley
Metals with its desired quantity of Billets. Universal must report all
material changes in their plans, forecast, etc. for manufacturing Billets
to Talley Metals as soon as such plans are known. Talley Metals will
advise Universal of any change to monthly purchases or changes in usage by
grade as soon as such information is available.
(c) The prices and delivery for Billets ordered outside of the first week of
any calendar month shall be as agreed upon by the parties at the time of
order placement.
(d) The Billet prices in all cases shall be exclusive of freight and insurance,
the payment of which shall be solely Talley Metals' responsibility.
Billets are purchased F.O.B. Bridgeville, PA and Talley Metals accepts
all risk of loss at that time. It is recognized that Billets are not
accepted by Talley Metals until they have arrived at Talley metals and
have been inspected to determine acceptability under quality standards
specified in this Agreement.
(e) Talley Metals guarantees the minimum order quantity of two million pounds
(2,000,000) of Billet each month during the term of this Agreement.
(f) Talley Metals purchase orders are placed upon the condition that Universal
shall not assign it or any interest therein, including any payment due or
to become due with respect thereto, and any assignment or any attempt to
assign shall be void without Talley Metals prior written consent and that
Talley Metals shall be entitled at all times, to setoff any
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undisputed amounts owing from Universal to Talley against any amount due or
owing Universal with respect to this order.
6. PAYMENT. Talley Metals will pay to Universal the full invoiced amount
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within forty-five (45) days of delivery of material.
7. TERM. The term of this Agreement shall commence on the date hereof and
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continue for a period of eighteen (18) months. This Agreement will
automatically renew each month with the placement of each separate order
placed by Talley Metals unless and until notice not to renew is given in
writing by either party.
Notwithstanding the foregoing Agreement is cancelable at any time after
the expiration of the initial eighteen (18) month period upon the
provision of 90 days prior written notice by either party. Either party
may terminate the Agreement at any time in the event that the other party
materially breaches its obligations as stated in this Agreement.
Either Party may terminate immediately upon the other Party declaring
insolvency or bankruptcy.
8. FORCE MAJEURE. Both parties will make a good faith effort to perform
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hereunder. Neither party, however, shall be liable for delay in performance
or for failure to render any performance under this Agreement (and without
in any way limiting the generality of the foregoing, any such delay or
failure shall be excused) when such delay or failure is caused by
governmental regulations (whether or not valid, fire, strike, war, flood,
accident, epidemic, embargo, appropriation of plant or product, in whole or
in part by Federal or State authority and any other cause or causes, whether
of like or different nature, beyond the reasonable control of such party;
provided, however that notwithstanding any provisions herein to the
contrary, Talley Metals shall be entitled, in any such event, to purchase
its required amounts in whole or in part from other vendors and, if
necessary, to reduce its obligations hereunder in order to contract for such
other supply requirements at such times that Universal cannot meet the
supply requirements. Once events change allowing Universal to again supply
Talley Metals, Talley Metals must do so in accordance with the terms and
conditions set forth in this Agreement. Each party shall promptly notify the
other of the occurrence (and the likelihoods of the occurrence) of any such
event or condition and shall keep the other party fully informed of all
relevant information. In the event Talley Metals purchases billets from
another source under circumstances where Universal cannot or does supply the
same, such purchases shall be counted for purposes of the purchase
requirements and restriction set forth in this Agreement.
9. SUCCESSOR AND ASSIGNS. This Agreement shall be binding on and inure to the
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benefit of the parties hereto and their respective successors and assigns.
10. GOVERNING LAW. This Agreement and the rights and obligations of the
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parties hereunder shall be governed by and construed in accordance with the
laws of Pennsylvania
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11. CONFIDENTIALITY;DISCLOSURE. The parties hereby agree that they will
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direct, and will use their best efforts to cause their directors, officers,
employees, advisors and representatives of their advisors (collectively,
the "Permitted Persons") to use the information in this Agreement solely
for the purpose of evaluating and/or affecting the purchase and sale of
Billets and that such information will be kept confidential by the parties
and their Permitted Persons (it being understood and agreed that the
efforts used to keep such request for information confidential shall not be
less than the efforts currently used to keep non-public information about
themselves confidential); provided, however, that any disclosure of such
information may be made to which both parties consent in writing prior to
the disclosure of such request. Notwithstanding the foregoing, either party
hereto will be permitted to make disclosures required by law.
The parties also hereby agree that all designs, drawings, patterns or
customer chemistries provided by or on behalf of Talley Metals to
Universal or information or material regarding or relating to Talley
Metals' customers shall be deemed "Confidential Information" of Talley
Metals whether or not such information is marked confidential.
12. ENTIRE AGREEMENT; NO ORAL MODIFICATION. This Agreement represents the
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entire agreement of the parties with respect to the subject matter hereof,
and all prior agreements, whether oral or written, are revoked and
superseded by this Agreement. No representation, warranty, inducement or
oral agreements have been made or relied upon by either party except as
expressly stated herein. This Agreement may not be changed, modified,
altered or amended in any way except in writing signed by both parties. Any
attempt at oral modification shall be void and of no force or effect.
13. HEADINGS; CONSTRUCTION. The Articles and Section headings contained in
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this Agreement are for reference purposes only and will not affect in any
way the meaning or interpretation of this Agreement. Unless the context
clearly otherwise requires, the words "hereby", "hereof", "herein",
"hereto", "hereunder", and "hereinafter" and any similar term used in this
Agreement refers to this Agreement as a whole and not merely the subsection
or section in which such terms are used.
14. COUNTERPARTS. This Agreement may be executed in counterparts, each of
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which shall be deemed an original, but both of which shall be deemed one
and the same Agreement.
15. SEVERABILITY. The parties agree that should any part or portion of this
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Agreement be found to be unenforceable, that the remainder of this
Agreement be enforced, to the extent that it is legal and practicable to do
so.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first written above.
Universal Stainless & Alloy Products Talley Metals Technology,
Inc., a Delaware Corporation A Carpenter Company
By: /s/ C. M. McAninch By: /s/ Bruce P. Bogardus
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Its: President & C.E.O. Its: Vice President - Materials
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Carpenter Technology Corporation
By: /s/ Raymond L. Teders
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Its: V.P. & General Manager
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