EXHIBIT 10.2
ASSET PURCHASE AGREEMENT
This ASSET PURCHASE AGREEMENT, dated as of August 3, 1999, is made and
entered into by and among Seven-UP/RC Bottling Company of Puerto Rico, Inc., a
Puerto Rico corporation ("Seller"), and Pepsi-Cola Puerto Rico Bottling Company,
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a Delaware corporation ("Purchaser"). Capitalized terms not otherwise defined
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herein have the meanings set forth in Section 1.01.
WHEREAS, Seller desires to sell, transfer and assign to Purchaser, and
Purchaser desires to purchase and acquire from Seller, all of Seller's right,
title and interest in and to certain customer information, equipment and
vehicles, all on the terms set forth herein;
NOW, THEREFORE, in consideration of the mutual covenants and agreements set
forth in this Agreement, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
ARTICLE I
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DEFINITIONS
1.01 Definitions. (a) As used in this Agreement, the following defined
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terms shall have the meanings indicated below:
"Acquired Assets" has the meaning ascribed to it in Section 2.01(a).
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"Actions or Proceedings" means any action, suit, adverse claim proceeding,
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mediation, arbitration or Governmental or Regulatory Authority investigation or
audit.
"Affiliate" means any Person that directly, or indirectly through one of
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more intermediaries, controls or is controlled by or is under common control
with the Person specified. For purposes of this definition, control of a Person
means the power, directly or indirectly, to direct or cause the direction of the
management and policies of such Person whether by contract or otherwise and, in
any event and without limitation of the previous sentence, any Person owning ten
percent (10%) or more of the voting securities of a second Person shall be
deemed to control that second Person.
"Agreement" means this Asset Purchase Agreement, the Assignment Agreement
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and the Disclosure Schedule hereto, as the same may be amended, modified,
supplemented or restated from time to time in accordance with the terms hereof.
"Assets and Properties" of any Person at any time of determination means,
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collectively, all assets, properties and rights of every kind, nature, character
and description (whether real, personal or mixed, whether tangible or
intangible, whether absolute, accrued, contingent, fixed or otherwise and
wherever situated), including the goodwill related thereto, operated, owned or
leased by such
Person, at such time, including without limitation cash, cash equivalents,
investments, accounts and notes receivable, chattel paper, documents,
instruments, general intangibles, real estate, equipment, inventory, goods and
Intellectual Property.
"Asset Purchase Price" means US$30,300.00.
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"Assignment Agreement" means the General Assignment and Xxxx of Sale to be
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executed and delivered on the Closing Date by Purchaser and Seller,
substantially in the form of Exhibit A, as the same may be amended, supplemented
or otherwise modified from time to time in accordance with the terms hereof and
thereof.
"Assumption Agreement" means the Assumption Agreement to be executed and
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delivered on the Closing Date by Purchaser and Seller, substantially in the form
of Exhibit B, as the same may be amended, supplemented or otherwise modified
from time to time in accordance with the terms hereof and thereof.
"Closing" has the meaning ascribed to it in Section 3.01.
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"Closing Date" means the date on which the Closing actually occurs, which
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shall be either (a) as soon as practicable after satisfaction of the conditions
to closing set forth in Article Seven or (b) such other date as Seller and
Purchaser may mutually agree, but in no event later than August 3, 1999.
"Confidentiality Agreement" has the meaning ascribed to it in Section 8.02.
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"Contract Rights Release Agreement" means that Contract Rights Release
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Agreement, dated as of July 30, 1999, between Seller and Purchaser.
"Disclosure Schedule" means the schedules dated as of the date hereof,
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containing all lists, descriptions, exceptions and other information and
materials as are required to be included therein pursuant to this Agreement.
"Excluded Assets" has the meaning ascribed to it in Section 2.01(b).
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"Governmental or Regulatory Authority" means any court, tribunal,
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arbitrator, authority, agency, commission, official, commonwealth or other
instrumentality of the United States, any foreign country or any domestic or
foreign state, county, city or other political subdivision.
"Laws" means all laws, statutes, rules, regulations, ordinances and other
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pronouncements having the effect of law of the United States, any foreign
country or any domestic or foreign state, commonwealth, county, city or other
political subdivision or of any Governmental or Regulatory Authority.
"Leased Vehicle Contracts" shall have the meaning ascribed to it in Section
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2.01(a)(iv).
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"Liabilities" means all Indebtedness, obligations and other liabilities of
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a Person (whether absolute, accrued, contingent, known or unknown fixed or
otherwise, or whether due or to become due).
"Licenses" means all licenses, permits, certificates of authority,
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authorizations, approvals, registrations, franchises and similar consents
granted or issued by any Governmental or Regulatory Authority.
"Liens" means any mortgage, pledge, assessment, security interest, lease,
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lien, adverse claim, levy, charge or other encumbrance of any kind, or any
conditional sale contract, title retention contract or other contract to give
any of the foregoing.
"Operative Agreements" means, collectively, the Assignment Agreement, the
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Assumption Agreement and all other documents or instruments executed pursuant to
this Agreement.
"Order" means any writ, judgment, decree, injunction or similar order of
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any Governmental or Regulatory Authority (in each such case whether preliminary
or final).
"Owned Vehicles" shall have the meaning ascribed to it in Section
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2.01(a)(ii).
"Payoff Amount" means the amounts necessary to be paid to each of the
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lessors under the Leased Vehicle Contracts in order to satisfy in full all
amounts owed to the Vehicle Lessors, which amounts are set forth in Section
2.01(a)(iv) of the Disclosure Schedule.
"Permitted Liens" has the meaning ascribed to it in Section 4.05.
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"Person" means any natural person, corporation, general partnership,
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limited partnership, limited liability company, limited liability partnership,
proprietorship, other business organization, trust, union, association or
Governmental or Regulatory Authority.
"Purchase Price" has the meaning ascribed to it in Section 3.03(a).
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"Purchaser" has the meaning ascribed to it in the introductory paragraph of
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this Agreement.
"Representatives" has the meaning ascribed to it in Section 8.02.
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"Seller" has the meaning ascribed to it in the introductory paragraph of
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this Agreement.
"Seller Parties" has the meaning ascribed to it in Article IV.
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"Vehicle Lessors" has the meaning ascribed to it in Section 3.04(b).
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(b) Unless the context of this Agreement otherwise requires: (i) words of
any gender include each other gender; (ii) words using the singular or plural
number also include the plural or singular number, respectively; (iii) the terms
"hereof," "herein," "hereby" and derivative or similar words refer to this
entire Agreement; (iv) the terms "Article" or "Section" refer to the specified
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Article or Section of this Agreement; and (v) the words "include," "includes"
and "including" are deemed to be followed by the phrase "without limitation."
References herein to the terms "Agreement" and "Operative Agreements" shall mean
this Agreement and the Operative Agreements as each may be amended, supplemented
or modified from time to time.
ARTICLE II
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SALE, TRANSFER AND CONVEYANCE OF
CUSTOMER INFORMATION, EQUIPMENT AND VEHICLES
2.01 Assets. (a) Acquired Assets. Subject to and upon the terms and
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conditions set forth in this Agreement, at the Closing, Seller will sell,
transfer, convey, assign and deliver to Purchaser, and Purchaser will purchase
or acquire from Seller, on an "as-is, where-is" basis except as provided in
Article IV, all right, title and interest of Seller in, to and under the
following assets of Seller, as the same shall exist on the Closing Date
(collectively, the "Acquired Assets"), and no others:
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(i) Customer List and Records. All customer lists regarding
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customers (the "Customer Information") of Seller related solely to soft
drink products bearing the "Seven- Up," "Schweppes," "Sunkist" and
"Xxxxx'x" brand names.
(ii) Owned Vehicles. Those vehicles identified on Section
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2.01(a)(ii) of the Disclosure Schedule (the "Owned Vehicles");
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(iii) Equipment. The equipment set forth on Section 2.01(a)(iii)
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of the Disclosure Schedule (the "Equipment"); and
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(iv) Leased Vehicle Contracts. To the extent their transfer is
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permitted under the terms thereof and under applicable Law, the leases of
the vehicles described in Section 2.01(a)(iv) of the Disclosure Schedule as
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to which Seller is the lessee or sublessee, together with any options to
purchase the underlying vehicles (the "Leased Vehicle Contracts").
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(b) Excluded Assets. Notwithstanding anything in this Agreement to the
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contrary, all Assets and Properties of Seller other than the Acquired Assets
identified in Section 2.01(a) (the "Excluded Assets") shall be excluded from and
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shall not constitute Acquired Assets.
2.02 Assumption of Liabilities. In connection with the sale, transfer,
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conveyance and delivery of the Acquired Assets pursuant to this Agreement on the
terms and subject to the conditions set forth in this Agreement, at the Closing,
Purchaser will assume and agree to pay, perform and discharge when due all
obligations of Seller under the Leased Vehicle Contracts arising or to be
performed on or after the Closing Date and excluding any such obligations
arising or to be performed prior to the Closing Date (the "Assumed
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Liabilities"). It is understood that Seller shall be responsible for all
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obligations in respect of the Acquired Assets prior to the Closing Date and that
Purchaser shall be responsible for all obligations in respect of the Acquired
Assets on and after the Closing Date.
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ARTICLE III
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THE CLOSING AND PURCHASE PRICE
3.01 Date and Place. Subject to the terms and conditions set forth in this
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Agreement, the closing for the transactions contemplated by this Agreement (the
"Closing") shall be held at the offices of Xxxxxx, Xxxxx & Bockius LLP, 101 Park
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Avenue, New York, New York, or at such other place as Purchaser and Seller
mutually agree, at 2:00 p.m. local time, on the Closing Date.
3.02 Transfer, Assumption and Purchase. Subject to the terms and
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conditions hereof:
(a) At the Closing, Seller will convey, transfer, assign and deliver to
Purchaser all right, title and interest of Seller in, to and under the Acquired
Assets by executing and delivering to Purchaser an Assignment Agreement; and
(b) At the Closing, Purchaser will assume the Assumed Liabilities by
executing and delivering to Seller an Assumption Agreement.
3.03 Purchase Price; Allocation. (a) Purchase Price. The purchase price
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for the sale and transfer of the Acquired Assets is the sum of (i) the Asset
Purchase Price plus (ii) the Payoff Amount (collectively, the "Purchase Price"),
payable in accordance with Section 3.04.
(b) Allocation of Purchase Price. The parties hereto acknowledge and
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agree that the purchase and sale of the Acquired Assets is an "applicable asset
acquisition" within the meaning of Section 1060(c) of the Code. The aggregate
purchase price for the Acquired Assets (including for this purpose the Assumed
Liabilities) shall be allocated among the Acquired Assets as set forth in
Section 3.03(b) of the Disclosure Schedule and the parties agree to be bound by,
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and shall file Tax Returns consistent with, such allocations.
3.04 Payment of Purchase Price for the Acquired Assets. Purchaser shall,
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subject to the terms and conditions of this Agreement, (a) as payment for the
Customer Information, the Equipment and the Owned Vehicles, pay to Seller at the
Closing the Asset Purchase Price by wire transfer of immediately available funds
to the account of Seller, which account will be designated by Seller prior to
the Closing; and (b) as payment for the Leased Vehicle Contracts, pay to the
lessors under the Leased Vehicle Contracts (the "Vehicle Lessors") at the
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Closing the Payoff Amount by wire transfer of immediately available funds to the
accounts of the Vehicle Lessors, which accounts will be designated by the
Vehicle Lessors prior to the Closing.
3.05 Deliveries by Seller at Closing. Seller shall, subject to the terms
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and conditions of this Agreement, deliver to Purchaser at Closing evidence of or
duly executed documents in proper form to effectuate the cancellation of all
Liens (other than Permitted Liens) encumbering the Acquired Assets.
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ARTICLE IV
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REPRESENTATIONS AND WARRANTIES OF SELLER
Purchaser hereby specifically acknowledges and agrees that Purchaser is
purchasing the Acquired Assets on an "as-is, where-is" basis, without any
representations or warranties of any nature whatsoever, whether express or
implied, at law or in equity by Seller, or any of Seller's officers, directors,
employees, shareholders, attorneys, agents or representatives (collectively, the
"Seller Parties"), except as expressly set forth below. In no event shall Seller
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or the Seller Parties have, incur or become subject to, any liability with
respect to the Acquired Assets after the Closing Date, and Purchaser hereby
agrees not to assert any claims with respect thereto. Purchaser hereby
acknowledges that it has conducted its own investigation and due diligence with
respect to the Acquired Assets and has relied exclusively thereon as concerns
its decision to enter into this Agreement and the Operative Agreements to which
it is a party. SELLER HAS NOT MADE AND DOES NOT MAKE ANY WARRANTY OR
REPRESENTATION WHATSOEVER, EITHER EXPRESS OR IMPLIED, AS TO THE MERCHANTABILITY,
FITNESS, CONDITION, DESIGN OR OPERATION OF THE ACQUIRED ASSETS, THEIR FITNESS
FOR ANY PARTICULAR PURPOSE, THE QUALITY OR CAPACITY OF THE MATERIALS OR
WORKMANSHIP IN THE ACQUIRED ASSETS, AND ANY REPRESENTATIONS OR WARRANTIES OTHER
THAN THOSE EXPRESSLY SET FORTH IN THIS ARTICLE IV ARE HEREBY EXPRESSLY
DISCLAIMED. The provisions of this paragraph shall survive the closing of the
transactions contemplated by this Agreement and the execution and delivery of
the Operative Agreements.
Notwithstanding the foregoing, Seller hereby represents and warrants to
Purchaser as follows:
4.01 Organization. Seller is a corporation duly organized and validly
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existing under the Laws of the Commonwealth of Puerto Rico.
4.02 Authority. Seller has all necessary corporate power and authority to
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execute and deliver this Agreement and the Operative Agreements to which it is a
party, to perform its obligations hereunder and thereunder and to consummate the
transactions contemplated hereby and thereby. The execution and delivery by
Seller of this Agreement and the Operative Agreements to which it is a party,
and the performance by Seller of its obligations hereunder and thereunder, have
been duly and validly authorized by all necessary board of directors approval
and other corporate action of Seller. This Agreement has been duly and validly
executed and delivered by Seller and constitutes, and upon the execution and
delivery by Seller of the Operative Agreements to which it is a party, such
Operative Agreements will constitute, legal, valid and binding obligations of
Seller enforceable against Seller in accordance with their terms.
4.03 No Conflicts. The execution and delivery by Seller of this Agreement
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do not, and the execution and delivery by Seller of the Operative Agreements to
which it is a party, the performance by Seller of its obligations under this
Agreement and such Operative Agreements and the consummation of the transactions
contemplated hereby and thereby will not:
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(a) conflict with or result in a violation or breach of any of the terms,
conditions or provisions of the certificates of incorporation or by-laws (or
other comparable corporate charter documents) of Seller; or
(b) materially conflict with or result in a material violation or
material breach of any term or provision of any Law or Order applicable to
Seller or its Assets and Properties.
4.04 Governmental Approvals and Filings. No consent, approval or action
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of, filing with or notice to any Governmental or Regulatory Authority on the
part of Seller is required in connection with the execution, delivery and
performance of this Agreement or any of the Operative Agreements to which it is
a party or the consummation of the transactions contemplated hereby or thereby.
4.05 Liens. Seller owns and has good title to the Acquired Assets, and, in
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each case as of the Closing, Seller will own the Acquired Assets free and clear
of all Liens, except as set forth in Section 4.05 of the Disclosure Schedule
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(collectively, "Permitted Liens").
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4.06 Brokers. With the exception of Xxxxxx Capital, Inc. (whose fee will
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be paid by Seller), no broker, finder or investment banker is entitled to any
brokerage, finder's or other fee or commission in connection with the
transactions contemplated by this Agreement based upon arrangements made by or
on behalf of Seller.
4.07 Legal Proceedings. (a) Except as disclosed in Section 4.07(a) of the
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Disclosure Schedule, there are no Actions or Proceedings currently on-going,
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pending or, to the knowledge of Seller, threatened against, relating to or
affecting Seller or any of its Assets and Properties which could reasonably be
expected to result in the issuance of an Order restraining, enjoining or
otherwise prohibiting or making illegal the consummation of any of the
transactions contemplated by this Agreement or any of the Operative Agreements
or otherwise result in a material diminution of the benefits contemplated by
this Agreement or any of the Operative Agreements to Purchaser.
(b) Except as disclosed in Section 4.07(b) of the Disclosure Schedule,
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there are no facts or circumstances to the knowledge of Seller that could
reasonably be expected to give rise to any Action or Proceeding that would be
required to be disclosed pursuant to Section 4.07(a).
4.08 Seller's Knowledge. If the phrase "Seller's knowledge" or "knowledge
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of Seller" is used in connection with any representation and warranty made by
Seller hereunder, the representation and warranty so qualified shall be deemed
to be made by Seller solely on the basis of the actual knowledge, after due
inquiry, of the following members of Seller's senior management: Xx. Xxxxxx
Xxxxxxx and Mr. Xxxxxxx Xxxxxxxx. It is expressly agreed and acknowledged by
Purchaser that Purchaser shall have no claim or remedy against Seller for any
breach or untruth of any representation or warranty that is qualified by the
phrase "Seller's knowledge" or the phrase "knowledge of Seller," except upon a
showing by Purchaser that such breach or untruth was known, after due inquiry,
to any of the following members of Seller's senior management: Xx. Xxxxxx
Xxxxxxx and Mr. Xxxxxxx Xxxxxxxx.
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The representations and warranties set forth in Section 4.03, Section 4.04,
Section 4.06 and Section 4.07 hereof shall expire on the one year anniversary of
the Closing Date. All other representations and warranties set forth in this
Article IV shall survive indefinitely.
ARTICLE V
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REPRESENTATIONS AND WARRANTIES OF PURCHASER
Purchaser hereby represents and warrants to Seller as follows:
5.01 Organization. Purchaser is a corporation duly organized, validly
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existing and in good standing under the Laws of the State of Delaware. Purchaser
has all necessary corporate power and authority to execute and deliver this
Agreement and Operative Agreements to which it is a party, to perform its
obligations hereunder and thereunder and to consummate the transactions
contemplated hereby and thereby. Purchaser is duly qualified, licensed or
admitted to do business and is in good standing in all jurisdictions in which
the ownership, use or leasing of its Assets and Properties, or the conduct or
nature of its business, makes such qualification, licensing or admission
necessary and in which the failure to be so qualified, licensed or admitted and
in good standing could reasonably be expected to have an adverse effect on the
validity or enforceability of this Agreement or any of the Operative Agreements
to which it is a party or on the ability of Purchaser to perform its obligations
hereunder and thereunder.
5.02 Authority. The execution and delivery by Purchaser of this Agreement
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and the Operative Agreements to which it is a party, and the performance by
Purchaser of its obligations hereunder and thereunder, have been duly and
validly authorized by all necessary board of directors approval and other
corporate action of Purchaser. This Agreement has been duly and validly executed
and delivered by Purchaser and constitutes, and upon the execution and delivery
by Purchaser of the Operative Agreements to which it is a party, such Operative
Agreements will constitute, legal, valid and binding obligations of Purchaser
enforceable against Purchaser in accordance with their terms.
5.03 No Conflicts. The execution and delivery by Purchaser of this
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Agreement do not, and the execution and delivery by Purchaser of the Operative
Agreements to which it is a party, the performance by Purchaser of its
obligations under this Agreement and such Operative Agreements and the
consummation of the transactions contemplated hereby and thereby will not:
(a) conflict with or result in a violation or breach of any of the terms,
conditions or provisions of the certificate of incorporation or by-laws (or
other comparable corporate charter documents) of Purchaser;
(b) conflict with or result in a violation or breach of any term or
provision of any Law or Order applicable to Purchaser or any of its Assets and
Properties; or
(c) (i) conflict with or result in a violation or breach of, (ii)
constitute (with or without notice or lapse of time or both) a default under or
(iii) require Purchaser to obtain any consent, approval or action of, make any
filing with, or give any notice to any Person as a result or under the
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terms of any contract or License to which Purchaser is a party or by which any
of its Assets and Properties is bound.
5.04 Governmental Approvals and Filings. No consent, approval or action
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of, filing with or notice to any Governmental or Regulatory Authority on the
part of Purchaser is required in connection with the execution, delivery and
performance of this Agreement or the Operative Agreements to which it is a party
or the consummation of the transactions contemplated hereby or thereby.
5.05 Legal Proceedings. (a) Except as disclosed in Section 5.05(a) of the
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Disclosure Schedule, there are no Actions or Proceedings currently on-going,
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pending or, to the knowledge of Purchaser, threatened against, relating to or
affecting Purchaser or any of its Assets and Properties (including, without
limitation, any antitrust claims) which could reasonably be expected to result
in the issuance of an Order restraining, enjoining or otherwise prohibiting or
making illegal the consummation of any of the transactions contemplated by this
Agreement or any of the Operative Agreements or otherwise result in a diminution
of the benefits contemplated by this Agreement or any of the Operative
Agreements to Seller.
(b) Except as disclosed in Section 5.05(b) of the Disclosure Schedule,
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there are no facts or circumstances known to Purchaser that could reasonably be
expected to give rise to any Action or Proceeding that would be required to be
disclosed pursuant to Section 5.05(a).
5.06 Brokers. All negotiations relative to this Agreement and the
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transactions contemplated hereby have been carried out by Purchaser with Seller
through Seller's broker, Xxxxxx Capital, Inc., without the intervention of any
Person on behalf of Purchaser in such manner as to give rise to any valid claim
by any Person against Seller for a finder's fee, brokerage commission or similar
payment.
5.07 Financial Ability. Purchaser has the financial ability to consummate
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the transactions contemplated by this Agreement.
The representations and warranties set forth in Section 5.03, Section 5.04,
Section 5.05 and Section 5.07 hereof shall expire on the one-year anniversary of
the Closing Date. All other representations and warranties set forth in this
Article V shall survive indefinitely.
ARTICLE VI
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EMPLOYEE MATTERS
6.01 Employees of Seller. Seller shall remain responsible for payment of
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severance, termination and change in control payments and other similar
compensation or benefits with respect to its employees required by Law or
contract, if any, which are or may become payable in connection with the
consummation of the transactions contemplated by this Agreement and the
Operative Agreements, or otherwise.
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ARTICLE VII
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CONDITIONS TO CLOSING
7.01 Conditions to Obligations of Seller. The obligations of Seller
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hereunder are subject to the fulfillment, at or before the Closing, of each of
the following conditions (all or any of which may be waived in whole or in part
by Seller in its sole discretion):
(a) Deliveries at Closing. At the Closing, Seller shall have received
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from Purchaser the Asset Purchase Price in immediately available funds as
provided for in Section 3.04.
(b) Payment of Payoff Amount. At the Closing, the Vehicle Lessors shall
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have received from Purchaser the Payoff Amount in immediately available funds as
provided for in Section 3.04.
(c) Assumption Agreement. At the Closing, Purchaser shall have executed
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and delivered to Seller the Assumption Agreement and any other of the Operative
agreements to which it is a party.
(d) Vehicle Lessor. At the Closing, Seller shall have received from each
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of the Vehicle Lessors a release, in form and substance satisfactory to Seller,
of all of the obligations of Seller under the Leased Vehicle Contracts.
(e) Contract Rights Release Agreement. On or prior to the Closing Date,
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the Contract Rights Release Agreement shall have been executed and delivered and
the transaction contemplated thereby shall have been consummated.
(f) Representations and Warranties. Each of the representations and
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warranties made by Purchaser in this Agreement shall be true and correct in all
material respects on and as of the Closing Date as though such representation or
warranty were made on and as of the Closing Date.
(g) Orders and Laws. There shall not be in effect on the Closing Date any
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Order or Law restraining, enjoining or otherwise prohibiting or making illegal
the consummation of any of the transactions contemplated by this Agreement or
any of the Operative Agreements.
7.02 Conditions to Obligations of Purchaser. The obligations of Purchaser
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hereunder are subject to the fulfillment, at or before the Closing, of each of
the following conditions (all or any of which may be waived in whole or in part
by Purchaser in its sole discretion):
(a) Assignment Agreement. At the Closing, Seller shall have executed and
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delivered to Purchaser the Assignment Agreement, and any other of the Operative
Agreements to which it is a party.
(b) Owned Vehicle Titles. At the Closing, Seller shall deliver a duly
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endorsed and notarized vehicle license and a duly endorsed and notarized
certificate of title for each of the Owned Vehicles.
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(c) Representations and Warranties. Each of the representations and
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warranties made by Seller in this Agreement (other than those made as of a
specified date earlier than the Closing Date) shall be true and correct in all
material respects on and as of the Closing Date as though such representation or
warranty were made on and as of the Closing Date, and any representation or
warranty made as of a specified date earlier than the Closing Date shall have
been true and correct in all material respects on and as of such earlier date.
(d) Lien Releases. Seller shall deliver to Purchaser at Closing evidence
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or duly executed documents in proper form to effectuate the cancellation of all
Liens (other than Permitted Liens) encumbering the Acquired Assets.
ARTICLE VIII
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MISCELLANEOUS
8.01 Notices. All notices, requests and other communications hereunder
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must be in writing and will be deemed to have been duly given only if delivered
personally or by facsimile transmission or mailed (first class postage prepaid)
to the parties at the following addresses or facsimile numbers:
If to Purchaser, to:
Pepsi-Cola Puerto Rico Bottling Company
0000 Xxxx Xxxxxxxx Xxxxx
00 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxxxx, XX 00000
Facsimile No. 000-000-0000
with a copy to:
Xxxxxx and Xxxxxx
2400 IDS Center
00 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxxx, XX 00000
Facsimile No. 000-000-0000
Attn: Xxxxx X. Xxxxxx, Esq.
If to Seller, to:
Seven-Up/RC Bottling Company of Puerto Rico, Inc.
Can, 177 KM 8.3, Los Filtros
Xxx Xxxxxxxxxx Xxxxxxxxx
Xxxxx(xxxx)x, Xxxxxx Xxxx 00000
Attn: President
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with copies to:
X'Xxxxx & Xxxxxx
American International Plaza, 8th Floor
250 Mu*oz Xxxxxx Avenue (Hato Rey)
San Xxxx, Puerto Rico 00918-1808
Facsimile No.: 000-000-0000
Attn: Xxxx X. Xxxxxx, Esq.
Xxxxxx, Xxxxx & Xxxxxxx LLP
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile No.: (000) 000-0000
Attn: Xxxxxx X. Xxxxxxxxxx, Esq.
8.02 Confidentiality. For a period of five years from the date of this
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Agreement, each party hereto will hold, and will use its best efforts to cause
its Affiliates and its officers, directors, employees, agents, counsel,
accountants, financial advisors, consultants and other representatives
(collectively, "Representatives") to hold, in strict confidence from any Person
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(other than any such Affiliate or Representative), unless (a) compelled to
disclose by judicial or administrative process (including without limitation in
connection with obtaining any necessary approvals of this Agreement and the
transactions contemplated hereby of Governmental or Regulatory Authorities) or
by other requirements of Law or Governmental or Regulatory Authorities, (b)
disclosed in an Action or Proceeding brought by a party hereto in pursuit of its
rights or in the exercise of its remedies hereunder or (c) Seller grants prior
written consent to make such disclosure, all data and information disclosed by
Seller and its Representatives to Purchaser or its Representatives, as well as
any and all reports, analyses, compilations or studies generated, whether or not
jointly by the parties or by any party alone, relating to the transactions
contemplated hereby, and all data and information relating to the businesses,
operation, contractual relationships and financial affairs of Seller, excluding
data and information (i) that was at the time of receipt in the public domain or
which subsequently became part of the public domain other than by breach by
Purchaser of this Agreement or that certain Confidentiality Agreement between
Seller and Purchaser, dated October 28, 1998 ("Confidentiality Agreement"), (ii)
-------------------------
that was lawfully in the possession of Purchaser prior to the date on which
Purchaser received such information from Seller or its Representatives or (iii)
that was lawfully acquired from a third party that was under no obligation to
keep such data and information confidential. Purchaser will, and will cause
those Persons to whom it has disclosed any documents or information furnished to
Purchaser in connection with this Agreement or the transactions contemplated
hereby to, deliver to Seller all documents and other material and all copies
thereof in its or their possession, custody or control that contain or
incorporate any documents or information furnished to Purchaser in connection
with this Agreement or the transactions contemplated hereby, promptly upon
Seller's request. In the event that Purchaser becomes legally compelled to
disclose any information or material subject to this Section 8.02 (collectively,
"Confidential Information"), Purchaser shall provide Seller with prompt notice
------------------------
thereof, specifying in reasonable detail the nature of such disclosure, so that
Seller may seek a protective order or other appropriate remedy and/or waive
compliance with the provisions of this Section 8.02. Purchaser shall use, at the
request of Seller, all reasonable efforts to cooperate with Seller in seeking
12
a protective order or other appropriate remedy in respect thereof. In the event
that such protective order or other remedy is not obtained, or Seller waives
compliance with the provisions of this Section 8.02, Purchaser shall furnish
only that part of the Confidential Information which it is advised by written
opinion of counsel is legally required and will exercise its best efforts to
ensure that confidential treatment will be accorded such Confidential
Information. In addition, Purchaser will provide Seller with written notice of
any Confidential Information to be so disclosed as far in advance of its
disclosure as is practicable.
8.03 Entire Agreement. This Agreement and the Operative Agreements
----------------
supersede all prior discussions and agreements, including, but not limited to
the Confidentiality Agreement, between the parties with respect to the subject
matter hereof and thereof. This Agreement and the Operative Agreements contain
the sole and entire agreement between the parties hereto with respect to the
subject matter hereof and thereof.
8.04 Expenses. All costs and expenses, including, without limitation, fees
--------
and disbursements of counsel, financial advisors and accountants, incurred in
connection with this Agreement and the transactions contemplated hereby shall be
paid by the party incurring such costs and expenses, whether or not the Closing
shall have occurred.
8.05 Public Announcements. Any announcement or press releases by either
--------------------
party relating to this Agreement and the Operative Agreements and the
transactions contemplated hereby and thereby shall be approved in advance by the
other party.
8.06 Waiver. Any term or condition of this Agreement may be waived at any
------
time by the party that is entitled to the benefit thereof, but no such waiver
shall be effective unless set forth in a written instrument duly executed by or
on behalf of the party waiving such term or condition. No waiver by any party of
any term or condition of this Agreement, in any one or more instances, shall be
deemed to be or construed as a waiver of the same or any other term or condition
of this Agreement on any future occasion. All remedies, either under this
Agreement or by Law or otherwise afforded, will be cumulative and not
alternative.
8.07 Amendment. This Agreement may be amended, supplemented or modified
---------
only by a written instrument duly executed by or on behalf of each party hereto.
8.08 No Third Party Beneficiary. The terms and provisions of this
--------------------------
Agreement are intended solely for the benefit of each party hereto and their
respective successors or permitted assigns, and it is not the intention of the
parties to confer third-party beneficiary rights upon any Person.
8.09 No Assignment; Binding Effect. Neither this Agreement nor any right,
-----------------------------
interest or obligation hereunder may be assigned by any party hereto without the
prior written consent of the other parties hereto and any attempt to do so will
be void. This Agreement is binding upon, inures to the benefit of and is
enforceable by the parties hereto and their respective successors and assigns.
8.10 Disclosure. Neither Seller nor Purchaser shall be deemed to have
----------
made, to any other party hereto or to any Operative Agreement, any
representation or warranty with respect to the
13
transactions contemplated hereby other than such representations and warranties
as are expressly made by it in this Agreement or in any Operative Agreement to
which it is a party.
8.11 Headings. The headings used in this Agreement have been inserted for
--------
convenience of reference only and do not define or limit the provisions hereof.
8.12 Consent to Jurisdiction and Service of Process. Purchaser hereby
----------------------------------------------
irrevocably appoints Xxxxx Xxxxxx, Esq. at his offices at Xxxxxx and Xxxxxx,
2400 IDS Center, 00 Xxxxx Xxxxxx Xxxxxx, Xxxxxxxxxxx, XX 00000 and Seller hereby
irrevocably appoints Xxxx X. Xxxxxx, Esq., at his office at X'Xxxxx & Xxxxxx,
American International Plaza, 8th Floor, 250 Xxxxx Xxxxxx Avenue (Hato Rey), San
Xxxx, Puerto Rico, its lawful agent and attorney to accept and acknowledge
service of any and all process against it in any Action or Proceeding arising in
connection with this Agreement or any of the Operative Agreements and upon whom
such process may be served, with the same effect as if such party were a
resident of the State of New York and had been lawfully served with such process
in such jurisdiction, and waives all claims of error by reason of such service,
provided that in the case of any service upon such agent and attorney, the party
effecting such service shall also deliver a copy thereof to the other parties at
the addresses and in the manner specified in Section 8.01. The parties hereto
will enter into such agreements with such agents as may be necessary to
constitute and continue the appointment of such agents hereunder. In the event
that such agent and attorney resigns or otherwise becomes incapable of acting as
such, such party will appoint a successor agent and attorney in New York, New
York, reasonably satisfactory to the other party, with like powers. Each party
hereby irrevocably submits to the nonexclusive jurisdiction of the United States
District Court for the Southern District of New York or any court of the State
of New York located in the City of New York in any such Action or Proceeding,
and agrees that any such Action or Proceeding shall be brought only in such
court (and waives any objection based on forum non conveniens or any other
--------------------
objection to venue therein); provided, however, that such consent to
-----------------
jurisdiction is solely for the purpose referred to in this Section 8.12 and
shall not be deemed to be a general submission to the jurisdiction of said
courts or in the State of New York other than for such purpose.
8.13 Invalid Provisions. If any provision of this Agreement is held to be
------------------
illegal, invalid or unenforceable under any present or future Law, and if the
rights or obligations of any party hereto under this Agreement will not be
materially and adversely affected thereby, (a) such provision will be fully
severable, (b) this Agreement will be construed and enforced as if such illegal,
invalid or unenforceable provision had never comprised a part hereof, (c) the
remaining provisions of this Agreement will remain in full force and effect and
will not be affected by the illegal, invalid or unenforceable provision or by
its severance herefrom and (d) in lieu of such illegal, invalid or unenforceable
provision, there will be added automatically as a part of this Agreement a
legal, valid and enforceable provision as similar in terms to such illegal,
invalid or unenforceable provision as may be possible.
8.14 Governing Law; Waiver of Jury Trial. This Agreement shall be governed
-----------------------------------
by and construed in accordance with the domestic laws of the State of New York,
without giving effect to any choice of law or conflict of law provision or rule
(whether of the State of New York or any other jurisdiction) that would cause
the application of the laws of any jurisdiction other than the State of New
York. Each party hereby irrevocably waives to the extent
14
permitted by Law its right to a jury trial in any Action or Proceeding arising
as a result of or relating to the transactions contemplated by this Agreement or
the Operative Agreements.
8.15 Time of the Essence. Time is of the essence for all deadlines set
-------------------
forth in this Agreement.
8.16 Counterparts. This Agreement may be executed in any number of
------------
counterparts, each of which will be deemed an original, but all of which
together will constitute one and the same instrument. Delivery of an executed
counterpart of a signature page of this Agreement by telecopy shall be effective
as delivery of a manually executed counterpart of this Agreement.
[Signature Page to Follow]
15
IN WITNESS WHEREOF, this Agreement has been duly executed and delivered by
the duly authorized officer of each party as of the date first above written.
Affidavit Number 1132 SEVEN-UP/RC BOTTLING COMPANY
---- OF PUERTO RICO, INC.
Subscribed and acknowledged to before me by
Xxxxxx Xxxxxx Xxxxxxx, of legal age, married,
---------------------
business executive and resident of Guaynabo, By: /s/ Xxxxxx X. Xxxxxxx
-------- ----------------------------
Puerto Rico, in his capacity as President, Name: Xxxxxx X. Xxxxxxx
--------- ----------------------
whom I have identified by means of their Title: President
---------------------
respective Puerto Rico driver's license in
accordance with Article 17(c) of the Notarial
Act, this 3rd day of August , 1999, in San
--- ------
Xxxx, Puerto Rico.
/s/ Xxxx X. Xxxxxxx Pou
-----------------------
Notary Public
Affidavit Number 1133 PEPSI-COLA PUERTO RICO BOTTLING
---- COMPANY
Subscribed and acknowledged to before me by
A. Xxxxx Xxxxx, of legal age, married, By:/s/ A. Xxxxx Xxxxx
-------------- -----------------------------
business executive and resident of San Xxxx, Name: A. Xxxxx Xxxxx
-------- -----------------------
Puerto Rico, in his capacity as President, Title: President
--------- ----------------------
whom I have identified by means of their
respective Puerto Rico driver's license in
accordance with Article 17(c) of the Notarial
Act, this 3rd day of August , 1999, in San
--- ------
Xxxx, Puerto Rico.
/s/ Xxxx X. Xxxxxxx Pou
-----------------------
Notary Public
16
EXHIBIT A
GENERAL ASSIGNMENT AND XXXX OF SALE
-----------------------------------
THIS ASSIGNMENT AND XXXX OF SALE is entered into this __ day of August,
1999 by and among Seven-UP/RC Bottling Company of Puerto Rico, Inc., a Puerto
Rico corporation (hereinafter referred to as "Seller"), and Pepsi-Cola Puerto
------
Rico Bottling Company, a Delaware corporation, ("hereinafter referred to as
"Purchaser").
---------
WHEREAS, Purchaser and Seller have entered into an Asset Purchase
Agreement, dated as of August 3, 1999 (the "Asset Purchase Agreement";
------------------------
capitalized terms not defined herein shall have the meanings ascribed to them in
the Asset Purchase Agreement), pursuant to which Seller has agreed to sell,
transfer, convey, assign and deliver to Purchaser, and Purchaser has agreed to
purchase or acquire from Seller, all of Seller's right, title and interest in
and to the Customer Information, Equipment, and Vehicles;
WHEREAS, Seller desires to sell, transfer, convey, assign and deliver to
Purchaser the assets described below pursuant to Section 3.02 of the Asset
Purchase Agreement and Purchaser desires to accept the sale, transfer,
conveyance, assignment and delivery thereof;
NOW, THEREFORE, for and in consideration of the mutual covenants contained
herein and other good and valuable consideration the receipt and sufficiency of
which are hereby acknowledged, Seller hereby irrevocably sells, transfers,
conveys, assigns and delivers to Purchaser, to the extent their transfer is
permitted under the terms thereof and under applicable Law and on an "as-is,
where- is basis," all of Seller's right, title and interest in, to and under the
following assets of Seller, as the same shall exist on the date hereof, and no
others: (i) the Customer Information, (ii) the Leased Vehicle Contracts, (iii)
the Owned Vehicles and (iv) the Equipment (collectively, the "Assigned Assets"),
---------------
TO HAVE AND TO HOLD the same unto Purchaser, its successors and assigns,
forever.
Purchaser hereby accepts the sale, transfer, conveyance, assignment and
delivery of the Assigned Assets, on an "as-is, where-is basis" and on the terms
set forth in the Asset Purchase Agreement.
Seller represents, warrants, covenants and agrees that it: (a) has good
title to the Assigned Assets, free and clear of all Liens other than Permitted
Liens; and (b) will warrant and defend the sale of the Assigned Assets against
all and every Person or Persons whomsoever claiming against any or all of the
same, subject to the terms and provisions of the Asset Purchase Agreement. The
representations and covenants contained in this paragraph shall expire on the
one year anniversary of the Closing Date.
At any time or from time to time after the date hereof, at Purchaser's
request and without further consideration, Seller shall execute and deliver to
Purchaser such other instruments of sale, transfer, conveyance, assignment and
confirmation, provide such materials and information and take such other actions
as Purchaser may reasonably deem necessary or desirable in order more
17
effectively to transfer, convey and assign to Purchaser, and to confirm
Purchaser's title to, all of the Assigned Assets, and, to the full extent
permitted by Law, to put Purchaser in actual possession and operating control of
the Assigned Assets and to assist Purchaser in exercising all rights with
respect thereto.
Seller hereby constitutes and appoints Purchaser the true and lawful
attorney of Seller, with full power of substitution, in the name of Seller or
Purchaser, but on behalf of and for the benefit of Purchaser: (a) to demand and
receive from time to time any and all of the Assigned Assets and to make
endorsements and give receipts and releases for and in respect of the same and
any part thereof; (b) to institute, prosecute, compromise and settle any and all
Actions or Proceedings that Purchaser may deem proper in order to collect,
assert or enforce any claim, right or title of any kind in or to the Assigned
Assets; (c) to defend or compromise any or all Actions or Proceedings in respect
of any of the Assigned Assets; and (d) to do all such acts and things in
relation to the matters set forth in the preceding clauses (a) through (c) as
Purchaser shall reasonably deem desirable. Seller hereby acknowledges that the
appointment hereby made and the powers hereby granted are coupled with an
interest and are not and shall not be revocable by it in any manner or for any
reason. Purchaser shall indemnify and hold harmless the Seller Parties from any
and all Losses caused by or arising out of any breach of Law by Purchaser in its
exercise of the aforesaid powers.
This General Assignment and Xxxx of Sale may be executed in any number of
counterparts, each of which will be deemed an original, but all of which
together will constitute one and the same instrument. This General Assignment
and Xxxx of Sale shall become effective upon the execution of a counterpart
hereof by each of the parties hereto and delivery by each of the parties hereto
of executed counterparts hereof to each of the other parties to this General
Assignment and Xxxx of Sale. Delivery of an executed counterpart of a signature
page of this General Assignment and Xxxx of Sale by telecopy shall be effective
as delivery of a manually executed counterpart of this General Assignment and
Xxxx of Sale.
This General Assignment and Xxxx of Sale shall be governed by and construed
in accordance with the laws of the State of New York applicable to a contract
executed and performed in such State without giving effect to the conflicts of
laws principles thereof, except that if it is necessary in any other
jurisdiction to have the law of such other jurisdiction govern this General
Assignment and Xxxx of Sale in order for this General Assignment and Xxxx of
Sale to be effective in any respect, then the laws of such other jurisdiction
shall govern this General Assignment and Xxxx of Sale to such extent.
[Signature Page to Follow]
18
IN WITNESS WHEREOF, the undersigned have caused their duly authorized
officers to execute this General Assignment and Xxxx of Sale on the day and year
first above written.
Affidavit Number __________ SEVEN-UP/RC BOTTLING COMPANY
OF PUERTO RICO, INC.
Subscribed and acknowledged to before me by
_______________, of legal age,
married/single, business executive and By:_____________________________
resident of ______________, Puerto Rico,in Name:
his/her capacity as ______________, whom I Title:
have identified by means of their respective
Puerto Rico driver's license in accordance
with Article 17(c) of the Notarial Act, this
___ day of __________, 1999, in San Xxxx,
Puerto Rico.
______________________________________
Notary Public
Affidavit Number __________ PEPSI-COLA PUERTO RICO BOTTLING
COMPANY
Subscribed and acknowledged to
before me by ______ of legal age,
married/single, business executive By:_____________________________
and resident of ______________, Name:
Puerto Rico, in his/her capacity as Title:
______________, whom I have
identified by means of their
respective Puerto Rico driver's
license in accordance with Article
17(c) of the Notarial Act, this ___
day of __________, 1999, in San
Xxxx, Puerto Rico.
______________________________________
Notary Public
19
EXHIBIT B
ASSUMPTION AGREEMENT
--------------------
THIS ASSUMPTION AGREEMENT is entered into this __ day of August, 1999 by
and between Seven-UP/RC Bottling Company of Puerto Rico, Inc., a Puerto Rico
corporation ("Seller"), and Pepsi-Cola Puerto Rico Bottling Company, a Delaware
------
corporation ("Purchaser").
---------
WHEREAS, Purchaser and Seller have entered into an Asset Purchase
Agreement, dated as of August 3, 1999 (the "Asset Purchase Agreement";
------------------------
capitalized terms not defined herein shall have the meanings ascribed to them in
the Asset Purchase Agreement), pursuant to which Seller has agreed to sell,
transfer, convey, assign and deliver to Purchaser, and Purchaser has agreed to
purchase or acquire from Seller, to the extent their transfer is permitted under
the terms thereof and under applicable Law and on an "as-is, where-is" basis,
all of Seller's right, title and interest in, to and under the (i) Customer
Information, (ii) the Owned Vehicles, (iii) the Leased Vehicle Contracts and
(iv) the Equipment, and Purchaser has agreed, in partial consideration therefor,
to assume certain contractual obligations in connection therewith by executing
an Assumption Agreement of even date herewith;
WHEREAS, pursuant to Section 3.02(b) of the Asset Purchase Agreement,
Purchaser is required to execute and deliver to Seller this Assumption Agreement
whereby Purchaser assumes such obligations;
NOW, THEREFORE, for and in consideration of the mutual covenants contained
herein and other good and valuable consideration the receipt and sufficiency of
which are hereby acknowledged, Purchaser hereby undertakes and agrees from and
after the date hereof, subject to the limitations contained herein, to assume
and to pay, perform and discharge when due the Assumed Liabilities.
Nothing contained herein shall require Purchaser to pay or discharge any
debts or obligations expressly assumed hereby so long as Purchaser shall in good
faith contest or cause to be contested the amount or validity thereof.
Other than as specifically stated above or in the Asset Purchase Agreement,
Purchaser assumes no debt, liability or obligation of Seller by this Assumption
Agreement, and it is expressly understood and agreed that all debts, liabilities
and obligations of Seller not assumed hereby by Purchaser shall remain the sole
obligation of Seller, its successors and assigns.
No Person other than Seller, its successors and assigns shall have any
rights under this Assumption Agreement or the provisions contained herein.
This Assumption Agreement may be executed in any number of counterparts,
each of which will be deemed an original, but all of which together will
constitute one and the same instrument. This Assumption Agreement shall become
effective upon the execution of a counterpart hereof by
20
each of the parties hereto and delivery by each of the parties hereto of
executed counterparts hereof to each of the other parties to this Assumption
Agreement. Delivery of an executed counterpart of a signature page of this
Assumption Agreement by telecopy shall be effective as delivery of a manually
executed counterpart of this Assumption Agreement.
This Assumption Agreement shall be governed by and construed in accordance
with the laws of the State of New York applicable to a contract executed and
performed in such State without giving effect to the conflicts of laws
principles thereof, except that if it is necessary in any other jurisdiction to
have the law of such other jurisdiction govern this Assumption Agreement in
order for this Assumption Agreement to be effective in any respect, then the
laws of such other jurisdiction shall govern this Assumption Agreement to such
extent.
[Signature Page to Follow]
21
IN WITNESS WHEREOF, the undersigned have caused their duly authorized
officers to execute this Assumption Agreement on the day and year first above
written.
SEVEN-UP/RC BOTTLING COMPANY
OF PUERTO RICO, INC.
By:__________________
Name:
Title:
PEPSI-COLA PUERTO RICO
BOTTLING COMPANY
By:___________________
Name:
Title:
22
GENERAL INFORMATION
REGARDING DISCLOSURE SCHEDULE
This page and all of the sections of this Disclosure Schedule, along with
all attachments referred to herein, all of which are hereby incorporated herein
by reference, comprise the Disclosure Schedule referred to in the Asset Purchase
Agreement, dated as of August 3, 1999 (which, together with all Exhibits thereto
and this Disclosure Schedule, may be sometimes hereinafter collectively referred
to as the "Agreement"), by and between Seven-Up/RC Bottling Company of Puerto
---------
Rico, Inc., a Puerto Rico corporation ("Seller"), and Pepsi-Cola Puerto Rico
------
Bottling Company, Inc., a Delaware corporation ("Purchaser"). To the extent that
---------
an item is disclosed or set forth in one section of this Disclosure Schedule or
an attachment thereto and is specifically referenced to in a paragraph or
section number of the Agreement and that same item also may be applicable to (or
properly serve as an amendment to or disclosure regarding) another paragraph or
section of the Agreement (other than items regarding compliance with laws and
litigation), its inclusion anywhere in this Disclosure Schedule or the
attachments thereto shall be deemed to be an automatic cross-reference to, and
inclusion in, this Disclosure Schedule or the attachments thereto as may be
appropriate throughout the Agreement and any and all applicable sections or
paragraphs thereof, whether or not a specific cross-reference is noted. In
addition, any and all attachments, statements or other documents attached to any
section of this Disclosure Schedule are incorporated by reference to the section
of this Disclosure Schedule to which they are either attached or referenced and
to any other section of this Disclosure Schedule which may be appropriate. The
disclosure in this Disclosure Schedule of any matter not specifically required
to be disclosed herein under the terms of one or more sections of the Agreement
shall not in any way be deemed to affect the interpretation of the express terms
of the Agreement or to establish in any manner a level of materiality for
purposes of interpreting the Agreement. Capitalized terms not otherwise defined
herein shall have the meanings ascribed to such terms in the Agreement.
23
Reference to Sections
of Agreement Subject Matter of Section
------------ -------------------------
2.01(a)(ii) Owned Vehicles
Equipment
2.01(a)(iii) Leased Vehicles
2.01(a)(iv) Allocation of Purchase Price
3.03(b) Seller Liens
4.05 Seller Legal Proceedings
4.07(a) Seller Legal Proceedings
4.07(b)
24
SECTION 2.01(a)(ii)
Owned Vehicles
--------------
I. Trailers
Asset Number\1\ Description VIN Identification
------------ ----------- ------------------
88811 45' Fruehauf w/liftgate trailer IH2V03526JH033001
94812 34' Wabash w/liftgate trailer IJJV282STRL224818
94813 34' Wabash w/liftgate trailer IJJV282S9RL2248129
Total Trailers $24,500
Value
__________________
\1\ Asset numbers are the numbers assigned by Seven-Up/RC Bottling Company of
Puerto Rico, Inc.
25
SECTION 2.01(a)(iii)
Equipment
---------
Asset Number/1/ Description
------------ -----------
94963 1994 Hyster Forklift
94964 1994 Hyster Forklift
98975 1998 Hyster Forklift
98976 1998 Hyster Forklift
Total Equipment Value $5,800
__________________
\1\ Asset numbers are the numbers assigned by Seven-Up/RC Bottling Company of
Puerto Rico, Inc.
26
SECTION 2.01(a)(iv)
Leased Vehicles
---------------
Citibank Leased
Ford Trucks
Asset Number Description VIN Number
------------ ----------- ----------
97576 Ford J/A 22' box w/liftgate 0XXXX00X0XXX00000
97577 Ford J/A 22' box w/liftgate 0XXXX00X0XXX00000
97578 Ford J/A 22' box w/liftgate 1FDYW86EOVVA40393
97579 Ford J/A 22' box w/liftgate 0XXXX00XXXXX00000
97580 Ford J/A 22' box w/liftgate 0XXXX00X0XXX00000
97581 Ford J/A 22' box w/liftgate 0XXXX00X0XXX00000
97582 Ford J/A 22' xxx x/xxxxxxxx 0XXXX00X0XXX00000
Total Citibank
Lease Truck Value $377,118.85
GE Capital Lease
Asset Number Description VIN Number
------------ ----------- ----------
95567 1995 Ford Cargo 8000 0XXXX00X0XXX00000
95568 1995 Ford Cargo 8000 0XXXX00X0XXX00000
95569 1995 Ford Cargo 8000 0XXXX00X0XXX00000
95566 1995 Ford Cargo 8000 0XXXX00X0XXX00000
95570 1995 Ford Cargo 8000 0XXXX00X0XXX00000
95571 1995 Ford Cargo 8000 0XXXX00X0XXX00000
95572 1995 Ford Cargo 8000 0XXXX00X0XXX00000
95573 1995 Ford Cargo 8000 0XXXX00X0XXX00000
95574 1995 Ford Cargo 8000 0XXXX00X0XXX00000
95575 1995 Ford Cargo 8000 0XXXX00X0XXX00000
94234 1994 Ford 1 Ton Pick-Up 0XXXX00X0XXX00000
Total GE Capital
Lease Value $91,478.30
27
SECTION 3.03(b)
Allocation of Purchase Price
----------------------------
Asset Purchase Price: $ 30,300.00
Payoff Amount: 468,597.15
----------
Total: $ 498,897.15
28
SECTION 4.05
Seller Liens
------------
Chattel Mortgage in favor if BT Commercial Corporation executed September 11,
1990 before Xxxxxxxx Xxxxxxxx Toro, Aff. 62, guaranteeing the amount of
$17,825.00.
29
SECTION 4.07(a)
Seller Legal Proceedings
------------------------
Allegation set forth in the letter dated July 23, 1999 from Xxxxx X. Xxxxxx
Merino, Esq., counsel to X. Xxxxxxxxx & Hnos., Inc. and Orange Crush of Puerto
Rico, Inc.
30
SECTION 4.07(b)
Seller Legal Proceedings
------------------------
Allegation set forth in the letter dated July 23, 1999 from Xxxxx X. Xxxxxx
Merino, Esq., counsel to X. Xxxxxxxxx & Hnos., Inc. and Orange Crush of Puerto
Rico, Inc.
31
