Remarketing Agreement/Asset Purchase Agreement
WHEREAS, Seller desires to obtain the assistance and services of Company in connection with the sale of certain equipment;
WHEREAS, Company is in the business of deinstalling, auditing, inventorying, storing and remarketing such equipment; and
WHEREAS, Seller desires to engage Company to furnish remarketing services, and Company desires to accept the engagement from Seller to provide such remarketing services, on the terms and conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the mutual benefits to be derived by each party hereto and for other good and valuable consideration, receipt of which is hereby acknowledged, both parties agree to the following:
1.DEFINITIONS. The following terms, in singular or plural forms of the same Term, shall have the meanings set forth as follows:
1.1 “Locations” means a designated geographic location or locations that Seller has Equipment that it desires Company to remarket either in parts or in its entirety.
1.2 “Buyer” shall mean any customer of Company or purchaser of Equipment offered in the open market by Company.
1.3 “Documentation” means tangible or intangible information necessary for the use, planning, engineering, installation, operation and maintenance of Equipment, including, but not limited to, specifications, Cad files, PDF files, invoices, loading and unloading procedures, or related information.
1.4 “Equipment” shall mean any assets, including equipment, machines, supplies, materials, articles, items, parts, components, assemblies, and the incidental associated accessories, that Seller provides to Company for sale to Company’s customers as identified in uploaded inventories attached hereto and incorporated herein by reference.
1.5 “Sale Price” means the price for which Company sells the Equipment to a Buyer.
1.6 “Net Sale Price” means the actual Sale Price of the Equipment received in cash by Company, net of applicable taxes, and other Reimbursable Expenses reimbursed to Company in connection with the remarketing thereof.
1.7 “Liabilities” shall mean all liabilities, claims, judgments, losses, orders, awards, damages, costs, fines, penalties and reasonable costs of defense and attorneys’ fees.
1.8 “Term” shall have the meaning set forth in Paragraph 3.
1.9 “Notice” shall mean a document issued from Seller to Company identifying Equipment or Locations that Seller desires Company remarket.
1.10 “Reimbursable Expenses” shall mean any expenses incurred by the Company in connection with the remarketing of the Equipment, including travel expenses to Locations, travel-related costs, shipping, packaging and related expenses, third party labor costs, storage in third party locations and any other costs or expenses incurred by Company in connection with providing the services hereunder, all of which must be commercially reasonable and must be approved by the Seller in writing in advance of the incurrence of such expense.
2. APPOINTMENT AND SERVICES. Seller agrees to provide to Company, and Company agrees to market, sell and distribute for Seller, the Equipment. Seller hereby appoints Company as Seller’s exclusive remarketer for the Equipment during the Term of this Agreement. Company hereby accepts such appointment and agrees to use its commercially reasonable best efforts to market and sell the Equipment during the Term of this Agreement.
3. TERM OF AGREEMENT. This Agreement shall become effective on the Date it is executed by both parties. The initial term of this Agreement shall be for a period of one (1) year and shall be automatically renewed for successive periods of one (1) year unless one party gives the other party at least thirty (30) days written notice, prior to the conclusion of the previous period, of its intention to terminate the Agreement (the “Term”). Notwithstanding any termination of this Agreement, this Agreement (and the obligations of the parties hereunder) shall remain effective with respect to pending transactions at the time of such termination until the performance in full of the respective obligations of the parties in respect of such pending transactions. The Company shall provide the Seller with a list of all pending transactions before the termination date, whether due to expiration of the Agreement or prior termination by either of the parties. This Agreement shall automatically terminate upon the completion of all sales related to the Equipment.
4. SALE OF EQUIPMENT.
4.1 Seller shall designate Equipment for
sale to Company by (i) listing Equipment or Locations in Exhibit B of
this Agreement; or (ii) from time to time issuing a written notice to
Company identifying Equipment for sale, which notice shall be counter-signed
by Company. Company shall manage the de-installation, shipment to Company’s
facilities and/or remarketing of Equipment from their current Locations
as it deems necessary in order to recover the maximum Sale Price for such
Equipment, provided that no Equipment shall be moved from its current
Location if such movement is prohibited by the terms of any agreement
to which Seller is a party unless and until Seller obtains the necessary
consents to such movement, and Company agrees to use its commercially
reasonable best efforts to assist Seller in obtaining such consents.
4.3 Title to Equipment shall pass to Buyer
upon receipt by Company of payment in full from Buyer. Passage of title
will be evidenced by a bill of sale executed by Company on behalf of Seller,
and Seller does hereby appoint Company as its attorney-in-fact for the
sole and limited purpose of executing and delivering such bills of sale.
6. REMARKETING FEE. In consideration of the services provided by Company hereunder, Seller shall pay Company a remarketing fee (“Remarketing Fee”) equal to the percentage of the Net Sale Price set forth on Exhibit A.
7. REMITTANCE OF NET PROCEEDS. The term “Net Proceeds” shall mean the Sale Price of an item of the Equipment, less (i) the applicable Remarketing Fee, (ii) any other amount payable to Company hereunder with respect to such Equipment and not previously paid to Company (including Reimbursable Expenses as per Section 8 below), and (iii) applicable sales and value added tax. The Reimbursable Expenses will be deducted from the Seller’s portion of the Net Proceeds after the remarketing fee is calculated: FORMULA (Gross Sale Price minus Remarketing Fee equals Net Sales Price, from which Reimbursable Expenses are deducted prior to remittance of Net Proceeds to the Seller). Upon Company’s receipt of the Sale Price for the Equipment and upon the transfer of title described herein, Company will pay the Net Proceeds to Seller by a wire transfer or check drawn on Company’s account in accordance with Seller’s payment instructions on the next Remittance Date (as herein defined). The term “Remittance Date” shall mean the 15th day of each month, or if such day is not a business day, the next succeeding business day. Each remittance will include an account statement detailing all transactions that occurred during the period covered by such remittance.
8. REIMBURSABLE EXPENSES. Reimbursable Expenses will be deducted from the Sale Price prior to remittance of Net Proceeds. A detailed accounting of such expenses will be provided to Seller in the account statement provided Seller with the remittance.
9. EXCLUSIVE RIGHTS. It is understood and agreed that this Agreement grants to Company an exclusive right to market, sell and distribute all Equipment, covered by this Agreement.
10. REPORTING & RECORDS. Company shall maintain complete and accurate records of all Equipment and transactions from the sale of Equipment in accordance with Generally Accepted Accounting Principles. Company will perform thorough audits of Locations and Equipment prior to the remarketing thereof. All records, including current Equipment in inventory, Equipment sold from inventory, invoices for sold Equipment, and account statements will be maintained and stored electronically in the Business Concepts LLC Inventory Management System which will be accessible by Seller via email on Excel spreadsheet. Company shall retain such records for during the Term of this Agreement, for one (1) year following the expiration or termination of this Agreement, and for the respective periods in which Company is required to maintain such records, Seller and it’s authorized agents and representatives shall have access and the right to audit such records during Company’s normal business hours on reasonable notice to Company. Seller may inspect, inventory, and authenticate the Equipment that is furnished under this Agreement during Company’s normal business hours on reasonable notice to Company.
11. DISPOSAL. In the event that Company determines in good faith that outdated, aged, damaged or inoperable items of the Equipment cannot be sold, it will so notify Seller in writing and will describe the Equipment’s defects. Company shall perform such an evaluation and provide to Seller a written opinion statement regarding the same within thirty (30) days of the execution of this Agreement. In the event that Seller notifies Company in writing that Seller approves of the scrapping of such Equipment, Company will arrange for such Equipment to be packaged and shipped to an environmentally compliant facility in accordance with applicable federal, provincial, and municipal environmental laws and in a manner that is commercially acceptable as environmentally friendly. Company shall, as frequently as Seller shall require, provide Seller with a “Scrapped Report” detailing the Equipment to be scrapped, reason for scrapping, the Equipment’s resale value, and normal fair market value.
12. TIME FRAME. The Company understands that time is of the essence and agrees to remove the Equipment from the Locations in an expedient, safe, good and workmanlike manner. If time frame for removal is less than 3 weeks and a suitable buyer cannot be secured the company has the right to purchase the assets in Exhibit B on a no cost basis of the assets but will be responsible for any cost of removal for any of the assets in Exhibit B. For any assets that are deemed to have not value, the seller can expect to pay for all labor and disposal cost of those assets with no value. No value assessment will be made if no reasonable offers are available to the Seller or the Company.
13. DEFAULT. In the event Company shall be in breach or default of any of the terms, conditions, or covenants of this Agreement and if such breach or default shall continue for a period of thirty (30) days after the giving of written notice to Company thereof by Seller, then Seller shall have the right to (a) terminate this Agreement retroactive to the date of the breach or default, and (b) take immediate possession of all unsold Equipment. In such an instance, the Seller shall be responsible for the costs and expenses of returning all unsold Equipment to the Seller in accordance with Seller’s directions. In addition, Company shall provide a written list of all pending transactions and the names and contact information for such prospective buyers of the Equipment.
13. INDEMNITY. Company shall indemnify and hold harmless Seller, its parents, subsidiaries, affiliates, agents, directors and employees against all Liabilities to the extent they arise from or are in connection with the fault or negligence of Company, its officers, employees, agents, subcontractors or representatives acting under this Agreement. Seller shall indemnify and hold harmless Company, its Sellers, parents, subsidiaries, affiliates, agents, directors and employees against all Liabilities to the extent they arise from or are in connection with the fault or negligence of Seller, its officers, employees, agents, subcontractors or representatives acting under this Agreement.
16. TITLE & SECURITY INTEREST. The understanding between Seller and Company, is that Seller has delivered or shall deliver to Company, on consignment, the Equipment as set forth in this Agreement. Company agrees to execute such Uniform Commercial Code financing statements as Seller shall request to evidence the foregoing. Title to the Equipment shall remain in Seller’s possession at all times until sale by Company, at which time title shall pass directly from Seller to the Buyer. Similarly, title to the proceeds of such sale or sales shall vest in and remain with Seller until Company shall account for and remit to Seller its share of the proceeds. In order to secure any and all of its obligations to Seller under this Agreement, Company hereby grants to Seller a first security interest in any contract rights or general intangibles of Company acquired or created in connection with the performance of its obligations under this Agreement including, without limitation, all rights in subcontracts which subcontracts are hereby assigned to Seller for purposes of security.
17. LIMITATION OF LIABILITY. If any Equipment is lost, damaged, or destroyed after Company takes possession of it, any liability of Company to Seller for said Equipment shall be limited to the lesser of the cost of replacement of said Equipment or the amount actually paid by Seller to acquire it. Company shall not be liable to Seller for the action or failure to act of any third party.
17. INDEPENDENT CONTRACTOR. The parties agree that each party is engaged in an independent business, and that nothing herein shall create an agency relationship, joint venture, partnership or other like arrangement between the parties. Company and its employees and agents will perform under this Agreement as independent contractors and not as agents or employees of Seller. Nothing in this Agreement or any subcontract shall create any contractual relationship or liabilities between any subcontractor and Seller. Company shall be responsible for its own acts and those of its agents, employees and subcontractors in connection with performance of this Agreement.
18. FORCE MAJEURE. Neither party shall be liable for failure to perform solely caused by unforeseeable force majeure circumstances beyond their control (“Force Majeure”). If such circumstances occur, the party injured by the other's inability to perform may elect to: (1) suspend the Agreement, in whole or part, for the duration of the Force Majeure circumstances; or (2) terminate any pending agreements for the purchase of Equipment. The party experiencing the Force Majeure circumstances shall cooperate with and assist the injured party in all reasonable ways to minimize the impact of such circumstances on the injured party.
19. ARBITRATION. If no agreement can be reached amicably, any difference or dispute arising out of or in connection with the formation, performance, interpretation and termination of the Agreement and its amendments, shall be finally and exclusively settled by arbitration by the American Arbitration Association pursuant to its rules for commercial arbitration in Decatur, Texas. This Agreement shall be construed and enforced in accordance with the laws of the State of Texas, without regard to the conflict of laws principles thereof.
20. NOTICES. Any notice or demand which under
the terms of this Agreement shall be in writing and shall be given or
made by confirmed facsimile or by certified or registered mail. The above
addresses may be changed at any time by giving notice to the other party
in accordance with this provision.
22. SURVIVAL. The provisions of this Agreement that, by their sense and context, are intended to survive performance by either or both parties shall also survive the completion, expiration, termination or cancellation of this Agreement.
23. SEVERABILITY. Any term or provision of this Agreement which is held to be invalid, void, unenforceable or illegal will in no way affect, impair or invalidate the remaining terms or provisions, which will remain in full force and effect, consistent with the original intent of the parties.
24. AMENDMENTS. No change or modification of any terms or conditions herein shall be valid or binding on either party unless made in writing and signed by authorized representatives of both parties.
25. ENTIRE AGREEMENT. This Agreement together with any and all exhibits hereto constitutes the entire Agreement between the parties relating to this subject matter. This Agreement supersedes all prior oral and written communications, negotiations, agreements and understandings of the parties with respect to the subject of this Agreement.
26. COUNTERPARTS. This Agreement may be executed in multiple counterparts, each of which shall be deemed an original and all of which taken together shall constitute one and the same instrument.
27. AUTHORITY; JOINT PREPARATION. The parties represent and warrant that they are duly authorized and have received all necessary consents to enter into this Agreement, and that the signatories are duly authorized to bind the parties to this Agreement. Each party acknowledges that it has reviewed this Agreement and participated in its preparation and understands the provisions of this Agreement. This Agreement and any ambiguous language shall not be construed against either party for having prepared it.
IN WITNESS WHEREOF, the parties have executed the Agreement on the respective dates entered below.
Business Concepts LLC THE COMPANY
Company: 30.0% of Net Sales Price