ASSET PURCHASE AGREEMENT
THIS
AGREEMENT
is made
this 10th day of February, 2006 by and between Cobalt Blue, LLC,
a New York corporation having a place of business at 000 Xxxxxxxx Xx. X.,
Xxxxxxxxx, Xxx Xxxx 00000 (the "Seller"), and Fresca Worldwide Trading Corp.
having a place of business at 000 X. Xxxxx Xx., Xxxxxx, Xxx Xxxx 00000.
WHEREAS,
Seller
is the owner of certain property, tangible and intangible (individually or
collectively the "Assets"), including, for example, eight (8) ATM machines
and
five (5) ATM machines under management, all of which constitute all of the
assets used by or available for use by Seller in the operation of its business
of an ATM vending company (the "Business"), and all of which are more
specifically described on the attached Schedule
A;
and
WHEREAS,
Buyer
desires to purchase from Seller, and Seller desires to sell to "Buyer, on the
terms set forth herein, the Assets.
NOW,
THEREFORE,
it is
agreed as follows:
1.
Warranties
and Representations of Seller
The
Seller warrants and represents to Buyer as follows:
(a)
Organization
and Standing of Seller. The
Seller is a corporation duly organized and validly existing in good standing
under the laws of the State of New York.
(b)
Corporate
Authority.
Seller
has full power and authority to carry on the Business as it is now conducted,
to
own, lease and use the assets now owned, leased and used by it, and to enter
into this Agreement and consummate the transactions herein contemplated. Seller
and its Member have taken all action, as may be advisable, necessary and proper
to authorize and approve the execution of this Agreement by Seller and the
performance by Seller of its terms.
(c)
Title
to Assets.
Seller
alone owns outright all of the Assets. Seller has good and marketable title
to
the Assets free of any claims, mortgages, liens, security interests or other
encumbrances.
(d)
Condition
of Assets. The
Assets will be purchased ''as is" at the time of execution
of this Agreement. However, the Assets are in good working order and condition
and usable, in accordance with their purposes, in the operation of the Business.
(e)
Warranties
and Service Contracts.
All
warranties and service contracts relating to the Assets; which exist at the
time
of execution of this Agreement, as described on the attached Schedule
B.
All
such warranties and service contracts are now in full force and effect-there
being no defaults by either party thereunder. Seller has not performed any
act
nor has there been an omission by Seller which will adversely affect, nullify
or
cause a default or right of termination. Seller’s interest in all of the
warranties and service contracts is freely transferable to Buyer at closing
without the need to obtain any prior consents and without causing a violation
of
or creating the right of termination on the part of any third
party.
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(f)
Employee
Relations.
Seller
is not engaged in any labor or other controversy with any of its employees.
Seller has not entered into any contract or agreement of employment with any
of
its employees. All of the Seller's employees may be terminated by Seller at
any
time without violating any agreement or understanding existing between Seller
and its employees. Seller has no pension, profit sharing, retirement or deferred
compensation plans nor does it provide any other benefits for, any of its
employees.
(g)
Obligations
and Agreements.
All of
Seller’s obligations, financial or otherwise, and all agreements, including the
lease of any real or personal property, written or oral, relating to the
Business or any of the Assets are ser forth on the attached Schedule
C
(the
“Obligations and Agreements”). All of the Obligations and Agreements are current
and in full force and effect - there being no defaults by either party
thereunder. Seller has not performed any act nor has there been an omission
by
Seller which will adversely affect, mollify or cause a default or right of
termination under any Obligations or Agreement. Seller’s interest in all of the
Obligations and Agreements is freely transferable to Buyer at closing without
the need to obtain any prior consents and without causing a violation of or
creating the right of termination on the part of any third party.
(h)
Litigation.
There
are no suits, claims, actions, proceedings, arbitrations, other litigation
or
known investigation of or against the Seller, or to which Seller is a party,
threatened or pending, at law or in equity, before any court, governmental
department, board, agency, bureau or instrumentality, affecting in any way
Seller, the Assets, the conduct of the Business by Seller or Buyer, execution
of
this Agreement or consummation of the transaction contemplated herein (the
“Action"). There are no outstanding judgments or liens against Seller. Seller
does not know and has no reasonable grounds for knowing any facts or
circumstances which could reasonably form the basis
for
an Action.
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(i)
Taxes
and Audits.
All
Federal, state and local Taxes and obligations, including without limitations
sales, income, payroll and withholding tax, and all applicable returns and
reports, have been paid and filed by the Seller. All taxes and obligations
now
due and any accrued until the time of closing have been or will be paid or
provision for payment, satisfactory to Buyer, will be made. Included in such
taxes and obligations are unemployment insurance contributions required to
be
made by Seller.
(j)
Books
and Records.
The
books and records of account of Seller have been regularly kept and maintained
on a cash basis in conformity with generally accepted accounting principles
applied on a consistent basis, and they fairly and accurately reflect the
transactions of Seller in the conduct of the Business.
(k)
Financial
Statements.
Any
statements and financial information provided by Seller fairly and accurately
present the financial condition of Seller and the results of the operation
of
the Business for the period indicated.
(l)
Applicable
Laws. The
conduct of the Business and the condition, ownership, lease and use of the
Assets are in accordance with all applicable federal, state and local laws,
rules, orders and regulations, inclusive of those of administrative boards
or
other agencies. Seller does not know of and has no reasonable grounds for
knowing any existing or proposed laws, rules, orders or regulations which will
adversely affect the conduct of the Business by Seller or Buyer, the ownership
of the Assets or their compliance with applicable laws.
(m)
Terminable
Agreements.
All of
the agreements to which Seller is a party and which relate to the operation
of
the Business, written or oral, can be terminated by Seller; and none require
more than a thirty (30) day notice to so terminate.
(n)
Conduct
of Seller’s Business.
Between
the date of this Agreement and the time of closing, except as otherwise agreed
to in writing by Buyer, Seller will;
i.
conduct the Business in the normal course and in the same manner as before;
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ii.
make
no change in its articles or organization or operating agreement;
iii.
subject to normal depreciation incurred in the ordinary course of business,
use
its best efforts to preserve the Assets; and
iv.
take
no act or fail to take any act which will in any way affect the truth or
occurrence of the warranties and representations contained in this Agreement.
(o)
No
Insolvency or Bankruptcy.
No
insolvency proceeding of any character, including without limitation,
bankruptcy, receivership, reorganization, composition or arrangement with
creditors, voluntary or involuntary, affecting Seller, or the Assets, is pending
or threatened and Seller has not made any assignment for the benefit of
creditors, or taken any other action with a view to, or which would constitute
the basis for, the institution of such insolvency proceedings.
(p)
Warranties
and Representations at Time of Closing.
The
warranties and representations contained in this Agreement and in any
certificates, exhibits, schedules, instruments or documents delivered to Buyer
in accordance with the terms of this Agreement will be true at the time of
closing as though they were made at that time.
2.
Sale
of Assets
Seller
will sell, assign and transfer to Buyer good and marketable title to the
Assets and
Seller's interest in the warranties and service contracts, free of any claims,
mortgages, liens, security interest or other encumbrances.
3.
Purchase
Price
The
purchase price together with the consideration for the covenant not to compete
referred to in Section 10 below, will be $10,000.00 (the “Purchase Price”) and
will be paid in the following manner:
(a)
cash
at closing.
4.
Assumption
of Obligations and Agreements
Buyer
will not assume, be responsible for or agree to pay when due any liability
of
Seller including any liabilities under any Obligations and Agreements.
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5.
Inventory
and Supplies
On
the
day of closing, Seller and Buyer will together take a physical inventory of
the
Seller's inventory and price each item at Seller's cost based upon the actual
invoice for each item.
6.
Sales
Tax -Bulk Sale
Pursuant
to Section 1141(c) of the New York Tax Law, Seller will notify the proper taxing
authorities of the bulk sale contemplated under the terms of this
Agreement.
7.
Sales
Tax -Transfer of Assets
Seller
will pay directly to the New York State Department of Taxation and Finance
all
sales tax due upon the transfer of the Assets.
8.
Access
to Premises and Records
Prior
to
the time of closing, Buyer and/or its authorized representative will have full
access to and the right to inspect, during normal business hours, the premises
at which the Business is being operated, the Assets, and the books, contracts,
commitments, records and such other information concerning the Business which
may be reasonably requested. All such information disclosed to Buyer will be
regarded as confidential and will not be reproduced without Seller's prior
consent.
9.
Deliveries
Seller
shall, unless otherwise provided herein, deliver the following to Buyer prior
to, or at closing:
(a)
true
copies of all warranties and service contracts, all Licenses, and all
Obligations and Agreements described respectively on Schedules
B, C and D.
(b)
copies of all resolutions and other authorizations which evidence that the
execution of this Agreement and performance of its terms by Seller have been
properly authorized and approved;
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10.
Contingencies
Performance
by Buyer under the terms of this Agreement is contingent upon the
following:
(a)
the
warranties and representations contained in this Agreement and in any
certificates, exhibits, schedules, instruments or documents delivered in
accordance with the terms of this Agreement will be true at the time of closing
as though such representation were made at that time and the parties will
deliver to each other a certificate so stating;
(b)
Buyer
initialing all schedules attached hereto after completion by the
Seller;
(c)
that
Seller shall have performed and/or complied with all of the terms and conditions
of this Agreement to be performed or complied with by it prior to or at the
time
of closing.
11.
Risk
of Loss
Seller
assumes all risk of loss or damage to the Assets prior to the time of closing.
In the event of fire or other casualty causing destruction to the Assets or
resulting in a diminution in value in an amount greater than $5,000.00, Buyer
will have the right to terminate this Agreement, without further liability,
by
giving written notice to the Seller. In the event of such loss or damage, Buyer
shall, at its option, either:
(a)
within ten (10) days from receipt of notice of such loss, cancel this Agreement,
obtain the return of any down payment, and thereafter neither party shall be
obligated to the other; or
(b)
have
paid to Buyer all insurance proceeds payable to Seller by reason of such loss
(whether by assignment or otherwise), close the transactions contemplated under
the terms of this Agreement, and deduct from the purchase price any amount
of
deductible contained in such policy of insurance covering such loss and
applicable thereto.
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12.
Execution
of Documents
Seller
and Buyer will execute those documents necessary to consummate the transactions
contemplated by this Agreement and do those acts necessary to obtain all
approvals and licenses.
13.
Indemnification
Seller
will indemnify and hold Buyer harmless, at all times from and after the date
of
this Agreement, including subsequent to time of closing, from all claims,
damages, liability and expense, including reasonable legal fees, arising from
or
in any way connected with any liabilities or Actions of any nature arising
in
connection with the operation by Seller of the Business prior to the time of
closing.
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.Closing
The
closing will occur within a reasonable time period after all contingencies
set
forth herein have been met.
15.
Termination
Buyer
may
terminate this Agreement at any time prior to closing, and neither party shall
be further obligated the one to the other in the event of any of the following:
(a)
any
warranty or representation made by Seller under the terms of this Agreement
or
in any certificates, exhibits, schedules, instruments or documents incidental
thereto is materially incorrect in any respect, whether resulting from
misrepresentation or omission of fact; or
(b)
that
any of the contingencies set forth in Section 10 above have not been fulfilled
or complied with prior to the time of closing or prior to the time specified
therein.
16.
Brokerage
Agreement
If
any
broker has participated in this sale, Seller shall be responsible for payment
of
any broker's or finder's fee or commission in connection with the sale of the
Assets.
17.
Nature
and Survival of Representations
All
warranties and representations made by Seller in this Agreement, or pursuant
hereto, will survive the execution hereof and the closing.
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18.
Construction
All
understandings and agreements previously made by and between the parties are
merged in this Agreement, which alone fully and completely expresses their
agreement. This Agreement may not be changed, terminated, nor any of its
provisions modified or waived, except in writing signed by all of the parties
to
this Agreement.
19.
Applicable
Law
This
Agreement will be governed by and construed in accordance with the laws of
the
State of New York without regard to its principles of conflicts of law. Both
parties hereby expressly waive their right to a trial by jury.
20.
Miscellaneous
This
Agreement may be executed in one or more counterparts, each of which shall
be
deemed to be an original and all of which together shall be deemed to be one
and
the same instrument, and shall become effective when one or more counterparts
have been signed by each of the parties.
21.
Notices
Any
notice, request, demand, consent or other communication which may be given
or
which is required to be given under the terms of this Agreement shall be in
writing and shall be delivered personally or sent by registered mail or
certified mail, return receipt requested as follows:
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(a)
To Buyer:
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000
X. Xxxxx Xx.
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Xxxxxx,
XX 00000
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(c)
To Seller:
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Cobalt
Blue, LLC
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000
Xxxxxxxx Xx. X.
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Xxxxxxxxx,
XX 00000
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22.
Binding
Effect
This
Agreement and the transactions and other instruments provided for herein will
be
binding upon and inure to the benefit of the parties, their heirs, distributees,
legal representatives, transferees, successors and assigns.
IN
WITNESS WHEREOF, we
have
signed this Asset Purchase Agreement.
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The
Seller:
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Cobalt
Blue, LLC
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By:
/s/ Xxxx
Xxxxxxxxxx
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Xxxx Xxxxxxxxxx, Managing Member
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The
Buyer:
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By:
/s/ Xxxxxxxx X.
Xxxxxx
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Xxxxxxxx X. Xxxxxx, Secretary
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