Exhibit 10.17
USED EQUIPMENT SALES AGREEMENT
THIS USED EQUIPMENT SALES AGREEMENT ("Agreement"), entered into this 4th day of
November, 2004, between WERNER CO., a Pennsylvania corporation ("Werner"), and
EMPIRE RESOURCES, ING., a Delaware corporation ("Buyer").
BACKGROUND
Werner is interested in selling certain used equipment located at its facility
in Amiston, Alabama under the terms and conditions contained in this Agreement.
Buyer is interested in purchasing certain used equipment located at Werner's
facility in Amiston, Alabama under the terms and conditions contained in this
Agreement.
Intending to be legally bound, Werner and Buyer agree to the following.
THE AGREEMENT
Section 1. Used Equipment Sold; Price.
(A) Werner agrees to sell and Buyer agrees to purchase certain used equipment
located at Werner's facility in Amiston, Alabama more specifically defined
in Schedule "A" (collectively, the "Used Equipment").
(B) The purchase price for the Used Equipment will be $850,000 ("Purchase
Price"). Buyer will deliver or cause to be delivered to Werner a wire
transfer of immediately available funds in an amount equal to the Purchase
Price in accordance with Section 3 below to the following account:
PNC Bank, N.A.
ABA# 043000096
Beneficiary: Werner Co.
Account # 1006799057
Section 2. Description of the Used Equipment. The description of the Used
Equipment is set forth on Schedule "A". Werner makes no warranty, express or
implied, as to the description of any of the Used Equipment, except as
expressly set forth otherwise in this Agreement. Notwithstanding the previous
sentence, Werner shall not permit the Used Equipment to substantially
deteriorate in value between the date of this agreement and the date Buyer
begins to remove the Used Equipment.
Section 3. Terms of Payment. A down payment equal to 30% of the Purchase Price
must be made upon the execution of this Agreement for all Used Equipment to be
purchased by Buyer. The remaining 70% of the Purchase Price must be received by
Werner upon the earlier of (i) February 17, 2005 or (ii) the date Buyer begins
dismantling work to remove the Used Equipment from the plant site.
Section 4. Removal of the Used Equipment. The purchase of the Used Equipment
will be F.O.B. Werner's location. Costs of preparing and loading the Used
Equipment will be at the expense of Buyer. Buyer must give Werner's
representative five (5) days prior written notice before entering Werner's
premises to perform the dismantling work in accordance with Section 7 below.
Werner may deny Buyer access to the premises if such notice has not been given.
Buyer agrees to begin removing the Used Equipment within one hundred twenty
(120) days, and finish removing the Used Equipment within one hundred eighty
(180) days after the date of this Agreement.
Section 5. Title and Risk of Loss. Title to and risk of loss or damage to all
Used Equipment purchased by Buyer will pass to Buyer upon the start of the
dismantling or other work that is to be performed in accordance with Section 7
of this Agreement.
Section 6. Insurance.
(A) Buyer will maintain and, prior to starting any work on Werner's property,
provide Werner with written certification of:
(1) Worker's Compensation Insurance or qualification as a self-insurer
with respect to Buyer's employees to the extent required to satisfy
the laws of the state in which the work is being done by such
employees;
(2) Employers' Liability Insurance for Bodily Injury per accident with
limits of not less than $1,000,000 and Bodily Injury by Disease with
limits of not less than $1,000,000 per policy; and
(3) Commercial General Liability Insurance for personal injury and
property damage, including contractual liability insurance, with
combined limits of not less than $5,000,000 per occurrence.
(B) Buyer agrees and will certify to Werner that prior to starting the work and
during the progress of the work that Werner will be an additional insured
on Buyer's Commercial General Liability. All of the above mentioned Buyer
insurance will be occurrence-based coverages.
Section 7. Dismantling or Other Work. Buyer assumes all risks upon the
commencement by Buyer of the dismantling or other work to be performed by Buyer
on Werner's premises. If Buyer, either as principal or by agent or employee,
enters upon the premises or property of Werner in order to do any work under
this Agreement or to remove the Used Equipment, Buyer will save and hold Werner
harmless from and against all liability, claims and demands on account of
personal injuries, including death, or property loss and damage to others
(including Werner and employees and invitees of Werner and Buyer) arising out of
or in any manner connected with the performance of such work, and caused by the
negligent or willful act or omission to act of Buyer, or its employees or
invitees, and Buyer will at his own expense defend any and all actions based
thereon and will pay all charges of attorneys and all costs and other expenses
arising therefrom, Buyer will not subcontract any portion of the work without
prior written permission of Werner. If Werner does approve Buyer's
subcontractor, Buyer's subcontractor will be bound by the same terms and
conditions as Buyer under this Agreement, including, but not limited, to Section
6, Insurance.
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Section 9. Indemnity and Section 12. Hazardous Chemicals and other Hazardous
Materials. Buyer and any approved subcontractors agrees to follow and be bound
by all of Werner's rules and regulations made known to Buyer and any approved
subcontractor regarding environmental, health, safety and security matters while
on Werner's property.
Section 8. Disclaimers: Sale of "AS IS. WHERE IS" Basis Warranty.
(A) Buyer has conducted its own due diligence of the Used Equipment prior to
execution of this Agreement.
(B) BUYER SPECIFICALLY ACKNOWLEDGES THAT THE USED EQUIPMENT IS BEING SOLD AND
PURCHASED ON AN "AS IS, WHERE IS, WITH ALL FAULTS" BASIS AND THAT BUYER IS
NOT RELYING ON ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER,
EXPRESS OR IMPLIED, FROM WERNER, ITS AGENTS OR REPRESENTATIVES AS TO ANY
MATTERS CONCERNING THE USED EQUIPMENT. WERNER MAKES NO REPRESENTATION OR
WARRANTY, STATUTORY, EXPRESS OR IMPLIED WITH RESPECT TO THE USED EQUIPMENT,
INCLUDING MAKING NO WARRANTY THAT THE USED EQUIPMENT WILL BE MERCHANTABLE
OR FIT FOR ANY PARTICULAR PURPOSE. THE ONLY WARRANTY OR REPRESENTATION MADE
BY WERNER IS A WARRANTY THAT WERNER IS THE OWNER OF THE USED EQUIPMENT FREE
AND CLEAR OF LIENS, ENCUMBRANCES AND SECURITY INTERESTS. Buyer assumes all
risks and liability whatsoever resulting from the possession, use or
disposition of the Used Equipment. Werner will have no liability with
respect to the Used Equipment sold to Buyer, including having no liability
for indirect, incidental or consequential damages.
(C) This Section 8 will survive the consummation of the transactions
contemplated by this Agreement.
Section 9. Indemnity. Buyer agrees to indemnify, defend and hold Werner harmless
against all liability or loss of all persons for injury, sickness, and/or death
and for property damage caused by the Used Equipment or by hazardous chemicals
or other hazardous material on or in them, after such Used Equipment in is
Buyer's possession or control, except for that solely attributable to Werner's
gross negligence or willful misconduct.
Section 10. Inspection. Buyer is invited, urged and cautioned to inspect the
Used Equipment prior to purchase. The Used Equipment will be available for
inspection at the places and times specified by Werner.
Section 11. Warning of Hazards. Buyer agrees to give warning of the possible
hazard to any person or persons to whom Buyer resells or gives or delivers the
Used Equipment or whom Buyer can reasonably foresee may be exposed to the
hazards.
Section 12. Hazardous Chemicals and other Hazardous Materials. Buyer is warned
and acknowledges that the Used Equipment purchased from Werner may bear or
contain hazardous substances, hazardous materials or hazardous waste which may
be, or may become by chemical
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reaction or otherwise, directly or indirectly, hazardous to life, to health, or
to property. Buyer does hereby discharge and release Werner from any and all
liability directly or indirectly resulting from the presence of the aforesaid
hazardous substances, materials or waste including, but not limited to, any and
all liability directly or indirectly resulting from the failure of Werner to
give more specific warning with respect to individual items of Used Equipment or
from the inadequacy of any warning; provided, however, that Werner will not be
released from liability with respect to any known hazardous substances,
materials or waste present in the Used Equipment at the time Buyer takes title
thereto, which are not commonly used or associated with such type of
equipment, to the extent Werner fails to make Buyer aware of same.
Section 13. Export Control. Buyer agrees to comply with all export laws,
restrictions and regulations of the United States governing or relating to the
equipment purchased under this Agreement from Werner. Buyer represents and
warrants to Werner that Buyer is not procuring the product purchased under this
Agreement with the intent to export such product in violation of the US export
control laws and regulations, and that Buyer is not a national or resident of
any country subject to a US embargo, including without limitation Angola, Burma,
Cuba, Iran, Iraq, Libya, North Korea, Sudan or Syria. Buyer will indemnify,
defend and hold Werner harmless from and against any and all claims, liabilities
and damages incurred by Werner arising out of Buyer's breach of these
obligations.
Section 14. Assignment. Neither party may assign this Agreement without the
prior written consent of the other party. Any attempted assignment without such
prior written consent will be void.
Section 15. Taxes. Buyer will pay all sales, use, transfer and any other
similar tax or taxes that are applicable to all transactions contemplated herein
including without limitation, sales and use tax, if any, on the transfer of the
Used Equipment. Additionally, Buyer will furnish Werner with all other sales
and use tax exemption certificates or a direct pay permit, if applicable, at
the Closing. Werner is responsible for any income tax which is applicable to the
transactions contemplated herein that is imposed upon Werner by any taxing
authority.
Section 16. Expenses. Each party is responsible for such expenses as it may
incur in connection with the negotiation, preparation, execution, delivery,
performance and enforcement of this Agreement and all related documents.
Section 17. Brokers. Buyer and Werner each represent and warrant to the other
that no brokers or finders are or were involved with respect to any of the
transactions contemplated by this Agreement. Each party will indemnify and save
harmless the other from any claim or claims made by any brokers or finders for
any commissions or compensation alleged to be due by reason of the
indemnifying party involving such brokers or finders.
Section 18. Miscellaneous.
(A) This Agreement may be amended only by a writing signed by each of the
parties.
(B) This Agreement may be executed in counterparts, each of which shall be
deemed an
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original but all of which shall constitute one and the same instrument.
(C) This Agreement contains the entire agreement and understanding of the
parties with respect to the transactions contemplated hereby and supersedes
all prior written and oral agreements, and all contemporaneous oral
agreements, relating to such transactions.
(D) This Agreement will be governed by, and construed and enforced in
accordance with, the laws of the Commonwealth of Pennsylvania, excluding
rules related to conflicts of law.
(E) This Agreement will be binding upon, and inure to the benefit of the
parties and their respective successors and permitted assigns.
(F) The waiver by a party of any breach or violation of any provision of this
Agreement shall not operate or be construed a waiver of any subsequent
breach or violation hereof.
Agreed and Accepted;
EMPIRE RESOURCES, INC. WERNER CO.
By: NATHAN KAHN By: MICHAEL TRZYNKA
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Title: CEO Title: VICE PRESIDENT
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Date: Nov. 10, 2004 Date: Nov. 4, 2004
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