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EXHIBIT 10.1
AGREEMENT
THIS AGREEMENT ("Agreement") by and between CENTRACK INTERNATIONAL,
INC., a Delaware Corporation ("Centrack") and HEARTLAND COMMUNICATIONS GROUP,
INC., an Iowa Corporation ("Heartland") is entered into as of this 4th day of
June, 1999.
WHEREAS, Centrack, maintains a Web Site on the Internet devoted to the
construction industry, including thereon classified and other advertising of
used construction equipment for sale; and
WHEREAS, based upon the operation of the foregoing Web Site, Centrack
has developed and maintains a database of used construction equipment and
purchasers and sellers of such equipment, to offer used construction equipment
for sale via the Internet; and
WHEREAS, Centrack anticipates launching an auction site for used
construction equipment during 1999 as part of the Web Site operated by Centrack
and this Agreement has been entered into in anticipation of such a launch; and
WHEREAS, Heartland is a publisher of construction trade magazines and
an Internet Web Site to advertise used construction equipment for sale via print
media and the Internet and maintains a database of used construction equipment
and purchasers and sellers of such equipment as derived therefrom; and
WHEREAS, Centrack and Heartland executed that certain letter of intent
dated April 30, 1999 ("Letter of Intent") in anticipation of this definitive
agreement to exchange access to certain databases and to provide certain
marketing and advertising services for each other, all as hereinafter set forth.
NOW, THEREFORE, in consideration of the promises and mutual covenants
contained herein, and for other good and valuable consideration, the receipt and
adequacy of which is hereby acknowledged, the parties agree as follows:
1. TERM. Unless sooner terminated pursuant to Section 7 hereof,
this Agreement shall continue in full force and effect through June 30, 2002
(the "Term"), and for successive periods of one (1) year ("Successive Terms")
thereafter unless terminated by either party by written notice provided not less
than six (6) months prior to the expiration of the Term or any Successive Term
in accordance with Section 21 hereof.
2. HEARTLAND'S OBLIGATIONS. During the Term of this Agreement,
Heartland shall provide the following services to Centrack:
a. Construction Division Database. Heartland shall
provide Centrack with a complete copy of the following lists (collectively, the
"Heartland Database") as maintained by Heartland:
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i. The mailing list utilized for the
distribution of the construction trade publications of
Heartland as identified on Schedule A attached hereto,
including names, addresses, telephone numbers, contact names
and titles, and SIC codes, to the extent maintained and
available on such list.
ii. The listing of used construction equipment,
parts and attachments as advertised for sale on the Internet
Web Site of the construction division of Heartland, including
names, addresses, telephone numbers and contact names and
titles relating to the sellers thereof, to the extent
maintained and available on such list.
The Heartland Database shall be updated by Heartland as of the first day of each
month and such update provided to Centrack within five (5) business days
thereafter. As long as the computer systems of Heartland and Centrack are, and
remain, compatible, the Heartland Database shall be provided in a machine
readable form that is compatible for direct import into Centrack's computer
database system. In the event Heartland proposes to implement a new computer
database system, or reconfigure its existing computer database system, which may
cause such computer database system to no longer be compatible with the Centrack
computer database system, Heartland shall give Centrack not less than thirty
(30) days written notice prior to the implementation or reconfiguration thereof.
b. Advertisements and Hyperlink Listings. Schedule A
contains a description of (i) the advertisements (the "Advertisements") and/or
hyperlinks ("Hyperlinks") that Heartland shall cause to be published or
implemented, (ii) with respect to Advertisements, the frequency of publication,
and (iii) the Web Site locations at which such Advertisements and Hyperlinks
shall appear, all as more specifically described in Schedule A. Notwithstanding
anything to the contrary contained in this Agreement, nothing in this Agreement
shall be construed as giving Heartland permission or a license of any kind to
reproduce or use Centrack's name, logo, or any Centrack trademark, service xxxx,
copyrights, or any other intellectual property in any form whatsoever (the
"Centrack Marks"), and Heartland shall be prohibited, without the prior written
consent of Centrack, from so reproducing, referencing or using Centrack's name
of any of Centrack's Marks, except for publication pursuant to this subparagraph
(c) as described on Schedule A and as provided in Section 5(b) hereof.
3. CENTRACK'S OBLIGATIONS. In consideration of the services to be
provided by Heartland to Centrack, Centrack agrees to the following:
a. Buyer and Seller Database. Centrack shall provide
Heartland with a complete copy of the list as maintained by Centrack of all
names, addresses, phone numbers, and contact persons desiring to sell or
purchase construction equipment (the "Centrack Database"). As long as the
computer systems of Heartland and Centrack are, and remain, compatible, the
Centrack Database shall be in a machine readable form that is compatible for
direct import into Heartland's computer database system. The Centrack Database
shall be updated as of the first day of each month and provided to Heartland
within five (5) business days thereafter. In the event Centrack proposes to
implement a new computer database system, or reconfigure its existing computer
database system,
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which may cause such computer database system to no longer be compatible with
the Heartland computer database system, Centrack shall give Heartland not less
than thirty (30) days written notice prior to the implementation or
reconfiguration thereof.
b. Advertisements and Hyperlink Listings. Schedule B
contains a description of the promotional statement (the "Promotions") and/or
hyperlinks ("Hyperlinks") that Centrack shall cause to be published or
implemented on its Internet Web Site, and the location within such Internet Web
Site in which such Promotions and Hyperlinks shall appear. Notwithstanding
anything to the contrary contained in this Agreement, nothing in this Agreement
shall be construed as giving Centrack permission or a license of any kind to
reproduce or use Heartland's name, logo, or any Heartland trademark, service
xxxx, copyrights, or any other intellectual property in any form whatsoever (the
"Heartland Marks"), and Centrack shall be prohibited, without the prior written
consent of Heartland, from so reproducing, referencing or using Heartland's name
or any of Heartland's Marks, except for publication pursuant to this
subparagraph(b) as described in Schedule B hereof and as provided in Section
5(b) hereof.
c. Payment.
i. Schedule C sets forth the listing and
transaction fees to be charged by Centrack to its customers in
connection with the listing and sale of construction
equipment, parts and attachments on the construction equipment
Auction Web Site to be launched and maintained by Centrack.
Within thirty (30) days from the receipt of the funds by
Centrack derived therefrom, Centrack shall remit payment to
Heartland of twenty percent (20%) of the gross online Auction
fees. For purposes of this Agreement, "gross online Auction
fees" shall mean all listing and transaction fees collected
and received by Centrack from the sale of any piece of
equipment via its Internet Auction Web Site to be calculated
and determined in accordance with Schedule C, less all
applicable sales and use taxes paid by Centrack from such
fees.
ii. Centrack shall forward a full, complete and
accurate sales report generated through the online auction and
calculating the payment due Heartland under Section 3(c)(i)
that will accompany all payments to Heartland. Heartland shall
have the right annually, at its sole cost and expense, to
audit Centrack's books and records in order to verify that the
proper amounts have been paid Heartland by Centrack under this
Agreement. Notwithstanding the foregoing, if Heartland's audit
discloses errors in accounting or payment to the disadvantage
of Heartland in an amount of ten percent (10%) or more of the
amount actually paid to Heartland for the period audited, the
expense of such audit shall be reimbursed by Centrack to
Heartland, plus prompt payment to Heartland of any such
amounts determined to be due and owing to Heartland.
d. Stock Options. Within thirty (30) days from the date
hereof, Centrack shall grant and issue to Heartland the written right and option
to purchase shares of the common stock of Centrack at a price not exceeding the
closing bid price per share for such shares as reflected on the OTC Bulletin
Board as of the date of the execution of this Agreement by Heartland. The number
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of such shares of common stock, term of the option to purchase such shares,
manner of exercise thereof and such terms relating thereto shall be as mutually
agreed by and between Heartland and Centrack. Heartland shall execute and
deliver to Centrack such written representations and agree to such restrictions
in reference thereto as may be reasonably required by Centrack to assure
compliance with the Securities Act of 1933, as amended, and, as appropriate, any
applicable state securities laws.
4. CONFIDENTIALITY. Both Centrack and Heartland agree that any
information that it or its employees, directors or independent contractors
obtains from the other party in connection with this Agreement that is
proprietary to the disclosing party and regularly kept confidential by the
disclosing party, including without limitation all databases disclosed hereunder
(the "Confidential Information") shall be kept confidential by the receiving
party and Confidential Information shall be disclosed by the receiving party, or
its employees, officers, directors or independent contractors, only to the
receiving party's legal counsel or to persons otherwise authorized by the
disclosing party in writing. Notwithstanding the foregoing, the parties may
publish, use and distribute such Confidential Information as part of a
compilation, and develop derivative works therefrom, as permitted by Section
5(b) hereof.
Confidential Information shall not include information that belongs to
the recipient party or is (i) already known by the recipient without an
obligation of confidentiality other than under this Agreement, (ii) publicly
known or becomes publicly known through no unauthorized act of Heartland
recipient, (iii) rightfully received from a third party, (iv) independently
developed by the recipient party without use of the other party's Confidential
Information, (v) disclosed without similar restrictions to a third party by the
party owning Confidential Information, (vi) approved by the other party for
disclosure, or (vii) required to be disclosed pursuant to a requirement of a
governmental agency or law of the United States of America or a state thereof,
or any governmental or political subdivision thereof, or any court process, so
long as the party required to disclose the Confidential Information provides the
disclosing party with timely prior notice of such requirement.
5. PROPRIETARY RIGHTS AND COPYRIGHTS.
a. Proprietary Protection. Each party agrees that all
lists and databases supplied hereunder, and any advertising materials furnished
by either party, (i) are proprietary to the disclosing party and contain
specialized and unique information not obtainable from ordinary sources, (ii)
have been created by the disclosing party at considerable time and expense, and
(iii) shall remain the exclusive and sole property of the disclosing party,
except as specifically provided herein. In furtherance thereof, each party shall
identify all lists and database information furnished by the other party by a
source code identifying the party providing such information as the source
thereof.
b. Copyrights. Each party acknowledges and agrees that
the Heartland Database and Centrack Database, respectively, constitute
copyrightable work developed and owned by Heartland and Centrack, respectively.
To the extent that the Heartland Database is imported or merged into the
Centrack Database as maintained by Centrack or the Centrack Database is imported
or merged into Heartland Database maintained by Heartland, Heartland and
Centrack have each
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contributed their respective copyrightable work to a compilation thereof to be
maintained by the other party, but each party shall retain all rights, including
copyrights, in their respective works. Each such compilation as maintained by
the parties hereto shall be jointly owned by Heartland and Centrack and each
such party grants to the other a limited license to publish, use and distribute
such compilation, and any derivative works based thereon, but the right of
publication, use and distribution of such compilation shall not be licensed or
sub-licensed to any third party. PROVIDED, however, Centrack shall not publish,
use or distribute the compilation, or any derivation based thereon, in print
media form, whether in magazine, digest, newspaper or newsletter format,
directly or indirectly competitive with any print media publications of
Heartland.
6. RETURN OF MATERIALS. All Confidential Information furnished
hereunder shall be returned upon termination of this Agreement, upon written
request upon termination or non-renewal of this Agreement or upon the receiving
party's determination that it no longer has a need for such Confidential
Information. On the termination date of this Agreement, each of the parties
hereto shall delete and remove from their respective compilation database, or
any derivatives thereof, as maintained by them, any database information
provided by the other party, identified by the source code thereof as required
by Section 5(a) hereof.
7. TERMINATION.
a. Termination for Cause. Either party may terminate
this Agreement at any time upon any of the following events:
i. A breach of any material provision of this
Agreement by the other party, which breach is not remedied
within thirty (30) days following written notice to the other
party of such breach;
ii. The filing of a voluntary or involuntary
petition for bankruptcy by any party or by a creditor of any
party, the appointment of a receiver with respect to any
party's assets, or an assignment by any party for the benefit
of its creditors; or
iii. The approval by the other party (as evidenced by
a resolution or other action of the other party's Board of
Directors) of a merger, share exchange or consolidation
involving more than fifty percent (50%) of the voting stock of
a party or the sale of all or substantially all of a party's
assets.
b. Heartland's Right to Terminate. Heartland may
terminate this Agreement upon the occurrence of any of the following events:
i. The failure of Centrack to grant a stock option
on mutually agreed terms within the time period and as set
forth in Section 3(d);
ii. Centrack shall fail to launch an operational
used construction equipment auction Internet Web Site as
contemplated by this Agreement or or before November 30, 1999;
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iii. Centrack shall fail to conduct and complete
not less than one (1) online Auction of used construction
equipment on the foregoing Web Site on or before November 30,
1999;
iv. Centrack shall fail to conduct and complete a
minimum of two (2) online Auctions of used construction
equipment on the foregoing Web Site each calendar quarter,
commencing with the calendar quarter ending March 31, 2000,
and each calendar quarter thereafter; or
v. The amount paid by Centrack to Heartland as
required by Section 2(c) hereof in any calendar quarter shall
be less than Fifteen Thousand Dollars ($15,000), commencing
with the calendar quarter ending March 31, 1999, and each
calendar quarter thereafter.
c. Effect of Termination. Any termination pursuant to
this Section 7 shall be without any further liability or obligation of the
terminating party, other than with respect to any breach of this Agreement prior
to such termination and any earned or accrued amounts due, but unpaid, to
Heartland as of the termination date. The provisions of Sections 4 through 25
hereof shall expressly survive the termination of this Agreement.
8. INDEMNITY.
a. Heartland's Indemnification. From and after the
execution date of this Agreement, Heartland agrees to indemnify and hold
harmless Centrack, its agents, employees, successors and assigns from and
against any and all liabilities, losses, damages, claims, suits, and expenses
(including reasonable attorney's fees) relating to and arising out of any breach
by Heartland of any of its agreements or obligations contained in this Agreement
or any action by Heartland in connection with this Agreement.
b. Centrack's Indemnification. From and after the
execution date of this Agreement, Centrack agrees to indemnify and hold harmless
Heartland, its agents, employees, successors, and assigns from and against any
and all liabilities, losses, damages, claims, suits, and expenses (including
attorneys' fees) relating to and arising out of any breach by Heartland of any
of its agreements or obligations contained in this Agreement or any action by
Centrack in connection with this Agreement.
9. AMENDMENTS. The provisions of this Agreement may not be
amended, supplemented, waived or changed orally, but only by a writing signed by
the party as to whom enforcement of any such amendment, supplement, waiver or
modification is sought and making specific reference to this Agreement.
10. ASSIGNMENTS. Neither party shall assign his or its right
and/or obligations under this Agreement without the prior written consent of the
other party.
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11. BINDING EFFECT. All of the terms and provisions of this
Agreement shall be binding upon, inure to the benefit of, and be enforceable by
the parties and their respective legal representatives, successors and permitted
assigns, whether so expressed or not.
12. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which taken
together shall constitute one and the same instrument. Confirmation of execution
by electronic transmission of a facsimile signature page shall be binding upon
any party so confirming.
13. ENFORCEMENT COSTS. If any civil action, arbitration or other
legal proceeding is brought for the enforcement of this Agreement, or because of
an alleged dispute, breach, default or misrepresentation in connection with any
provision of this Agreement, the successful or prevailing party or parties shall
be entitled to recover reasonable attorneys' fees, sales and use taxes, court
costs and all expense even if not taxable as court costs (including, without
limitation, all such fees, taxes, costs and expenses incident to arbitration,
appellate, bankruptcy and post-judgment proceedings), incurred in that civil
action, arbitration or legal proceeding, in addition to any other relief to
which such party or parties may be entitled. Attorneys' fees shall include,
without limitation, paralegal fees, investigative fees, administrative costs,
sales and use taxes and all other charges billed by the attorney to the
prevailing party.
14. EQUITABLE REMEDIES. Each of the parties acknowledges that the
parties will be irreparably damaged (and damages at law would be an inadequate
remedy) if this Agreement is not specifically enforced. Therefore, in the event
of a breach or threatened breach by any party of any provision of this
Agreement, then the other parties shall be entitled, in addition to all other
rights or remedies, to an injunction restraining such breach, without being
required to show any actual damage or to post an injunction bond, and/or to a
decree for specific performance of the provisions of this Agreement.
15. FORCE MAJEURE. Each party shall be excused from performance of
its non-monetary obligations for any period and the time of any performance
shall be extended as reasonably necessary under the circumstances, to the extent
that such party is prevented from performing, in whole or in part, its
obligations under this Agreement, as a result of acts of God any governmental
authority, war, civil disturbance, court order, labor dispute, third party
non-performance (including the acts or omissions of any suppliers, agents or
subcontractors) or any other cause beyond its reasonable control, including
failures or fluctuations in electrical power, heat, light, air conditioning or
telecommunication equipment or lines or any other equipment. Such
non-performance shall not be a default under this Agreement or grounds for
termination of this Agreement unless such non-performance is not cured within 60
days. A party who is prevented from performing for any reason shall immediately
notify the other party of the cause for such non-performance and the anticipated
extent of the delay.
16. FURTHER ASSURANCES. The parties hereby agree from time to time
to execute and deliver such further and other transfers, assignments and
documents and do all matters and things which may be convenient or necessary to
more effectively and completely carry out the intentions of this Agreement.
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17. DISPUTE RESOLUTION AND ARBITRATION
a. Dispute Resolution. Except for the failure to make payment of
any amounts due to any party hereunder if the amounts thereof are not disputed,
any dispute arising between the parties hereto relating to, or arising from,
this Agreement, or any of the other documents, certificates and agreements
required by this Agreement, shall be submitted to and resolved by the exclusive
use of the following procedure in lieu of either party pursuing remedies
otherwise available by statute or common law:
i. Initiation of Procedure. The party claiming a dispute
or a default (the "Initiating Party") shall in the manner provided
herein provide written notice to the other party (the "Responding
Party") reasonably describing the claimed dispute or default and the
nature of the remedial act or conduct requested of the Responding party
to correct, alleviate or cure the dispute or default.
ii. Good Faith Meeting. Within ten (10) business days
after receipt of the written notice by the Responding Party, a meeting
shall be held at the principal place of business of the Responding
Party between designated representatives of both the Initiating and
Responding Party, which designated representatives shall have both the
decision making and settlement authority to resolve and settle the
dispute or claimed default. These designated representatives may be
assisted by each party's legal counsel and the meeting shall be
conducted in good faith with a primary purpose to negotiate a
resolution of the dispute or claimed default.
iii. Time Limit for Dispute Resolution. If, within twenty
(20) calendar days after the good faith meeting described in
subparagraph (b) above, a negotiated resolution of the dispute or
claimed default has not occurred, then each party agrees to submit the
dispute or claimed default to binding arbitration in accordance with
Section 17 (b) below.
b. Binding Arbitration. The arbitration of any dispute or claim
of default shall be binding and conducted in accordance with the Commercial
Arbitration Rules of the American Arbitration Association and judgement upon the
award or decision rendered by the arbitrators may be entered in any court having
jurisdiction. The following procedures shall be utilized:
i. Selection of Arbitration Panel. Within forty-five
(45) calendar days after the twenty (20) calendar day time limit for
resolution of the dispute or claimed default has expired, each party
hereto shall appoint one member of the arbitration panel and agree in
writing with the arbitration panel members so appointed to be solely
responsible for that designated panel member's cost and expenses. The
two designated panel members shall then communicate with each other and
within ten (10) days of their appointment these panel members shall by
mutual agreement select a third panel member who shall serve as the
panel chairperson. If the appointed panel members are unable within
this time frame to agree on a panel chairperson, application by any
party hereto shall be made to the American Arbitration Association for
an appointment of a panel chairperson and the decision of the American
Arbitration Association as to the selection of the panel chairperson
shall be
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binding on all parties hereto. The costs and expenses of the panel
chairperson shall be borne equally by the parties hereto.
ii. Arbitration Site. All arbitration proceedings
hereunder shall be conducted at a location as mutually agreed by the
parties hereto. If the parties hereto fail to agree as to the location
of the arbitration proceedings, such location shall be determined by
the arbitration panel selected as provided in subparagraph (i) hereof.
iii. Applicable Law. In any such arbitration proceeding,
the arbitration panel shall apply the law of the jurisdiction of the
Initiating Party.
iv. Panel's Decision. The arbitration panel, by not less
than a majority vote, shall within twenty-one (21) days following final
submission render its award or decision, and such award or decision
shall be final and conclusive as to the parties hereto and heir
respective successors and assigns. As part of the award or decision,
the arbitration panel shall determine whether and to what extent a
party shall be entitled to recover from the other party or parties the
costs and expenses incurred by such party in the arbitration
proceeding, including reasonable attorney's fees and costs, as
permitted by Section 13 hereof.
18. NO CONSTRUCTION AGAINST DRAFTERS. The parties acknowledge that
this is a negotiated agreement, and that in no event shall the terms hereof be
construed against either party on the basis that such party, or its counsel,
drafted this Agreement.
19. PUBLICITY. Except by mutual agreement between Centrack and
Heartland, no party shall issue any press release or otherwise make any public
statement with respect to the execution of, or the transactions contemplated by,
this Agreement, except as may be required by law.
20. TRANSACTION COSTS. Each party shall pay all of its costs and
expenses (including attorney's fees and other legal costs and expenses and
accountant's fees and other accounting costs and expenses) incurred in
connection with this Agreement.
21. NOTICES. All notices, requests, consents and other
communications required or permitted under this Agreement shall be in writing
(including electronic transmission) and shall be (as elected by the person
giving such notice) hand delivered by messenger or courier service,
electronically transmitted, or mailed (airmail if international) by registered
or certified mail (postage prepaid), return receipt requested, addressed to:
If to CENTRACK: With a Copy to:
--------------- ---------------
Centrack International, Inc. Gunster, Yoakley, Xxxxxx-Xxxxx &
00000 Xxxxxxxxxx Xxxxx, Xxxxx 000 Xxxxxxx, P.A.
Xxxx Xxxxx, Xxxxxxx 00000-0000 Broward Financial Centre, Suite 1400
Attn: Xxxx X. Xxxxxxxx, President & C.E.O. 000 Xxxx Xxxxxxx Xxxxxxxxx
Telephone: (000) 000-0000 Xxxx Xxxxxxxxxx, Xxxxxxx 00000
Facsimile: (000) 000-0000 Attn: Xxxxxxx X. Xxxxxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
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IF TO HEARTLAND: WITH A COPY TO:
---------------- ---------------
Heartland Communications Group, Inc. Smith, Schneider, Stiles, Hudson, Serengeli,
0000 Xxxxxxx Xxxxxx Xxxxxxxx & Xxxxxxxx, P.C.
Xxxx Xxxxx, Xxxx 00000 10th Floor Equitable Building
Attn: Xxxxxx X. Xxxxxxx, President & C.E.O. 000 Xxxxxx, Xxxxx 0000
Telephone: (000) 000-0000 Xxx Xxxxxx, Xxxx 00000-0000
Facsimile: (000) 000-0000 Attn: Xxxx X. Xxxxxxxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
or to such other address as any party may designate by notice complying with the
terms of this Section. Each such notice shall be deemed delivered (a) on the
date delivered if by personal delivery; (b) on the date of transmission with
confirmed answer back if by electronic transmission; and (c) on the date upon
which the return receipt is signed or delivery is refused or the notice is
designated by the postal authorities as not deliverable, as the case may be, if
mailed.
22. SEVERABILITY. If any provision of this Agreement or any other
agreement entered into pursuant hereto is contrary to, prohibited by or deemed
invalid under applicable law or regulation, such provision shall be inapplicable
and deemed omitted to the extent so contrary, prohibited or invalid, but the
remainder hereof shall not be invalidated thereby and shall be given full force
and effect so far as possible. If any provision of this Agreement may be
construed in two or more ways, one of which would render the provision invalid
or otherwise, voidable or unenforceable and another of which would render the
provision valid and enforceable, such provision shall have the meaning which
renders it valid and enforceable.
23. THIRD PARTIES. Unless expressly stated herein to the contrary,
nothing in this Agreement, whether express or implied, is intended to confer any
rights or remedies under or by reason of this Agreement on any persons other
than the parties hereto and their respective legal representatives, successors
and permitted assigns. Nothing in this Agreement is intended to relieve or
discharge the obligation or liability of any third persons to any party to this
Agreement, nor shall any provision give any third persons any right of
subrogation or action over or against any party to this Agreement.
24. HEADINGS. The headings contained in this Agreement are for
convenience of reference only, are not to be considered a part of the Agreement
and shall not limit or otherwise affect in any way the meaning or interpretation
of this Agreement.
25. ENTIRE AGREEMENT. This Agreement represents the entire
understanding and agreement between the parties with respect to the subject
matter hereof, and supersedes all other negotiations, understandings and
representations (if any) made by and between such parties.
{signature page follows}
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IN WITNESS WHEREOF, the parties hereby execute this Agreement
as of the day and year first above written.
CENTRACK INTERNATIONAL, INC.
/s/ Xxxx X. Xxxxxxxx
----------------------------------------
Xxxx X. Xxxxxxxx, President and C.E.O.
HEARTLAND COMMUNICATIONS GROUP, INC.
/s/ Xxxxxx X. Xxxxxxx
----------------------------------------
Xxxxxx X. Xxxxxxx, President and C.E.O.
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SCHEDULE A
ADVERTISEMENTS AND HYPERLINKS TO BE PUBLISHED BY HEARTLAND (CHL)
1. Web Site link from xxx.xxxxxxxxxxxxxxxxxx.xxx home page to
xxx.xxxxxxxx.xxx home page.
2. Web Site link from xxxx://xxx.xxxxxxxxxxxxxxxxxx.xxx/xxxxxxxxxxx/
default.htm1 reference links to xxx.xxxxxxxx.xxx.
3. Web Site link from xxxx://xxx.xxxxxxxxxxxxxxxxxx.xxx/xxxxxxxxxxx/
showcase.htm to xxx.xxxxxxxx.xxx.
4. Advertisements listing Centrack auction events and
xxx.xxxxxxxxxxxxxxxx.xxx in CHL print media auction calendar and CHL's
Web Site auction calendar.
5. Full page, four-color advertisements in each issue of the following
Heartland publications (frequency noted in parentheses): Contractors
Hotline (weekly), Parts Connection (quarterly), Mine and Quarry
(monthly), Crane Hotline (monthly), Construction Equipment Guide
(monthly and annually), Demolition Hotline (as scheduled), Recycling
Hotline (as scheduled), and any additional publications added to
Heartland's construction division publications. Ad content and design
to be supplied by Centrack to Heartland mechanical requirements.
6. Line listing of Centrack classified to appropriate CHL Web Site.
Centrack will supply updated database of listings monthly.
7. Standard size banner ad of Centrack design displayed in random rotation
on xxx.xxxxxxxxxxxxxxxxxx.xxx. Banner ad design and URL to be supplied
by Centrack. Frequency of ad to be not less than two percent (2%) of
xxx.xxxxxxxxxxxxxxxxxx.xxx total page views.
8. News article in appropriate CHL publication featuring Centrack
services. Centrack will supply content of article with CHL approval.
Frequency of articles to reciprocate with CHL news articles in Centrack
e-mail newsletter.
HEARTLAND RESERVES THE RIGHT TO CHANGE OR REFORMAT THE WEB SITE PAGES
IDENTIFIED ABOVE AND CHANGE FREQUENCY OR CEASE PUBLICATION OF ANY OF THE
PUBLICATIONS IDENTIFIED ABOVE. IF SUCH CHANGES OCCUR, HEARTLAND WILL UTILIZE ITS
BEST EFFORTS TO PROVIDE SIMILAR OR EQUIVALENT EXPOSURE FOR THE HYPERLINKS AND/OR
ADVERTISEMENTS OF CENTRACK.
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SCHEDULE B
PROMOTIONS AND HYPERLINKS TO BE PUBLISHED BY CENTRACK (XXX.XXXXXXXX.XXX)
1. Web site hyperlink from xxx.xxxxxxxx.xxx home page to
xxx.xxxxxxxxxxxxxxxxxx.xxx.
2. Web site hyperlink from xxx.xxxxxxxx.xxx to
xxxx://xxx.xxxxxxxxxxxxxxxxxx.xxx/xxxxxxxxxxx/xxxxxxx.xxx#0Xxxxxxxxx
Dimensions
3. Web site hyperlink from xxx.xxxxxxxx.xxx to
xxxx://xxx.xxxxxxxxxxxxxxxxxx.xxx/xxxxxxxxxx/xxxxxxx.xxx#
1ReferenceLinks.
4. Standard size banner ads of Contractors Hot Line (CHL) design displayed
in random rotation on xxx.xxxxxxxx.xxx. Banner ad design and URL to be
supplied by CHL. Frequency of ads to be not less than 2% of
xxx.xxxxxxxx.xxx total page views.
5. Line listing of CHL classifieds to appear in xxx.xxxxxxxx.xxx
classified listings. CHL will supply updated database of listings
monthly.
6. Listing of Contractors Hot Line in appropriate Centrack advertisements,
direct mail or collateral materials.
7. Advertisements or news article about CHL with hyperlinks to
appropriate CHL. URL displayed in the Centrack e-mail newsletter.
Frequency shall be bi-monthly when newsletter is available.
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SCHEDULE C
HEAVY EQUIPMENT AUCTION REVENUE
# Auctions 7 24 30
# Listings 1,925 8,750 15,555
% Units sell through* 70% 80% 90%
Avg. sale price $ 25,000 $ 26,700 $ 28,000
2.5% Listing fee (average) $1,203,125 $ 5,840,000 $10,888,000
5% Transaction fee $1,684,375 $ 9,345,000 $19,600,000
Total HE Auction Revenues $2,887,500 $15,185,000 $30,488,000
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* Percent of listings that actually sell
FIGURE 8: HEAVY EQUIPMENT AUCTION SCHEDULE
AUCTION EQUIPMENT LISTING FEES
Auction equipment listing fees are non-refundable fees charged to a seller for
entering equipment into the online auction. These fees equal 3% of the reserve
value of the equipment, with a maximum fee of $1,000 per piece, charged before
auction. The listing fee for equipment with no reserve is 1.5% charged after
auction i.e. added to transaction fee.
AUCTION EQUIPMENT TRANSACTION FEES
Transaction fees are based on a sliding scale. They have been assumed at 10%
for transactions under $10,000, 5% for transactions between $10,001 to $30,000,
4.75% for transactions between $25,001 and $100,000, 4.5% for transactions
between $100,001 and $250,000, and 4% for all transactions over $250,001. Since
the average sale price over the three-year period is between $25,000 and
$28,000 the transaction fees are averaged at 5% to calculate this revenue.
AUCTION FOR ATTACHMENTS & MAJOR COMPONENTS
The fee to list a unit for auction with a value of less than $7,500 will be
10%, which is non-refundable. There will be no additional transaction fee for
units sold for less than $7,500.
For units, with a listing price greater than $7,500, there will be both listing
and transaction fees which are similar to those defined for the used heavy
equipment with the exception that the next range will be from $7,501 to
$25,000. Beyond this point, listing and transaction fees for both auctions will
be the same.
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