EXHIBIT 10.33
SECOND AMENDMENT TO
ASSET PURCHASE AGREEMENT
This Second Amendment to Asset Purchase Agreement (the "Amendment") is
made and entered as of this 25th day of November, 2002 by and among Pak-Sak
Industries, Inc., a Michigan corporation ("Seller"), Maxco, Inc., a Michigan
Corporation ("Seller Shareholder" or "Shareholder") ("Seller Shareholder or
"Shareholder, together with "Seller", "Seller Parties"), P-S Business
Acquisition Inc., a Michigan corporation ("BusinessCo") and P&D Real Estate,
LLC, a Michigan limited liability company ("Real EstateCo") (BusinessCo and Real
EstateCo are referred herein together as "Buyer", and Packaging Personified,
Inc., an Illinois corporation ("Guarantor," together with Buyer, "Buyer
Parties").
RECITALS
WHEREAS, the parties have entered, into that certain Asset Purchase
Agreement dated as of September 27, 2002, as amended by that certain First
Amendment to Asset Purchase Agreement dated October 30, 2002 ( together the
"Original Agreement") pursuant to which Seller has offered to sell, and
BusinessCo and Real EstateCo have agreed to purchase, substantially all of
Seller's property and assets relating to the Business and to assume certain
liabilities in connection with the Business; and
WHEREAS, both the Buyer Parties and the Seller Parties wish to amend
the Original Agreement, to provide that (i) the closing of BusinessCo's purchase
of the Personal Property, the Receivables, the Inventory and Seller's prepaid
expenses, as well as BusinessCo's assumption of Assumed Liabilities, shall take
place on November 25, 2002, and (ii) the closing of Real EstateCo's purchase of
the Real Estate shall take place on a date after November 25, 2002, following
the Buyer Parties' receipt of certain environmental testing and sampling results
of the Real Estate.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing and the mutual
promises herein contained, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
1. DEFINITIONS
Capitalized terms used in this Amendment and not otherwise defined
herein shall have the respective meanings given to them in the Original
Agreement
2. INITIAL PURCHASE PRICE
Section 4.a. of the Original Agreement is hereby amended to read in its
entirety as follows:
"a. Initial Purchase Price. The purchase price to be paid
by Buyer to Seller for the Purchased Assets at the
Closing (the "Initial Purchase Price") shall be equal
to:
(i) $1,006,303 (which is the agreed upon value for
the Personal Property), plus
(ii) Seller's Closing Date book value of Receivables
(less any related reserve for doubtful accounts),
plus
(iii) Seller's and Buyer's good-faith estimate of the
Closing Date Inventory value (less any reserve for
obsolete or unsaleable inventory), plus
(iv) Seller's Closing Date book value of prepaid
expenses (provided that such prepaid expenses relate
to the Purchased Assets), less
(v) an agreed upon discount of $300,000 (allocated to
the Personal Property as set forth on Schedule 4.D),
less
(vi) Seller's Closing Date book value of the Assumed
Liabilities, the dollar amount of which shall not
exceed the dollar amount of the purchased
Receivables.
The Initial Purchase Price shall be paid by Buyer in
full at the Closing, and shall be subject to the
Escrow Account provisions set forth in Section 4.b of
this Agreement and the post-closing adjustment
provisions set forth in Section 4.c of this
Agreement. Buyer shall deliver to Seller the amount
determined under this Section by cashier's check or
wire transfer ("Readily Available Funds") at
Closing."
3. REAL ESTATE PURCHASE AGREEMENT
Section 5.a. of the Original Agreement is hereby amended to read in its
entirety as follows:
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"a. Real Estate Purchase Agreement. The real estate
located at 000 Xxxxx Xxxxx Xxxxxx, Xxxxxx, Xxxxxxxx,
shall be purchased by Real EstateCo pursuant to an
agreement in the form attached hereto as Exhibit A,
as amended by an amendment in the form attached
hereto as Exhibit A-1 (together, the "Amended Real
Estate Purchase Agreement")."
4. CLOSING
Section 10.a. of the Original Agreement is hereby amended to read in
its entirety as follows:
"a. Closing. The closing of the purchase by BusinessCo of the
Personal Property, the Receivables, the Inventory and the
prepaid expenses and the assumption of the Assumed Liabilities
as contemplated in this Agreement (the "Closing") shall take
place at the offices of Xxxxxx Xxxxxxx Xxxxx & Xxxxxxxx, P.C.
at 10:00 a.m. on November 25, 2002 or at such other place
and/or on such other date as the parties may agree upon (the
"Closing Date")." The closing of the purchase by Real
EstateCo. of the Real Estate (the "real Estate Closing") shall
occur in accordance with the terms of Amended Real Estate
Purchase Agreement."
5. NO FURTHER AMENDMENTS
Except as otherwise expressly set forth herein, this Amendment does not
otherwise modify or amend any of the terms of the Original Agreement.
6. FACSIMILE EXECUTION, COUNTERPARTS
This Amendment may be executed via facsimile and in counterparts, each
of which shall be deemed an original, and as so executed shall constitute one
agreement.
[signature page follows]
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IN WITNESS WHEREOF, the parties have executed this Amendment as of the
date first set forth above.
SELLER:
Pak-Sak Industries, Inc.
By: /s/ Xxxxxxx X. Xxxxx
------------------------------
Xxxxxxx X. Xxxxx
Its: President
SELLER SHAREHOLDER:
Maxco, Inc.
By: /s/ Xxx X. Xxxx
------------------------------
Xxx X. Xxxx
Its: President
BUYER
P-S Business Acquisition, Inc.
By: /s/ Xxxxxxx Xxxxxxxx
------------------------------
Xxxxxxx Xxxxxxxx,
Its: President
P&D Real Estate, LLC
By: /s/ Xxxxxxx Xxxxxxxx
------------------------------
Xxxxxxx Xxxxxxxx
Its: Manager
GUARANTOR:
Packaging Personified, Inc.
By: /s/ Xxxxxxx Xxxxxxxx
------------------------------
Xxxxxxx Xxxxxxxx
Its: President
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