Exhibit 10.19
Universal Stainless & Alloy Products Sales Agreement
This AGREEMENT is made and entered into as of the ___________ day of __________,
1999, 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
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sell to Talley Metals and Talley Metals shall purchase from Universal,
stainless steel billets (hereinafter the "Billets") in an aggregate
quantity, of no less than three million (3,000,000) pounds and no more
than six million (6,000,000) pounds per month. On an annual basis
Talley Metals purchases from Universal will average three million five
hundred thousand pounds (3,500,000) pounds per month.
2. RESERVED CAPACITY Universal will set aside such capacity as necessary
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to 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
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Universal 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 three
million pounds (3,000,000) 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-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
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the 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
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in 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
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this 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: By:
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Its: Its:
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Carpenter Technology Corporation
By:
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Its:
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