Unassociated Document


    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 106 Glenwood Dr. S.,
      Liverpool, New York 13090 (the "Seller"), and Fresca Worldwide Trading Corp.
      having a place of business at 806 S. First St., Fulton, New York 13069.


     

    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.

     


    
      
        
        

      

      
        1

        
          

        

      

      
        
        

      

    


    (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.


    
      
        
        

      

      
        2

        
          

        

      

      
        
        

      

    


    (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;
      


    
      
        
        

      

      
        3

        
          

        

      

      
        
        

      

    


    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.


     


    
      
        
        

      

      
        4

        
          

        

      

      
        
        

      

    


    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; 

     


    
      
        
        

      

      
        5

        
          

        

      

      
        
        

      

    


    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. 

     


    
      
        
        

      

      
        6

        
          

        

      

      
        
        

      

    


    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. 

     

    14
      .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. 

     


    
      
        
        

      

      
        7

        
          

        

      

      
        
        

      

    


    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: 

     

    
      	 	
              (a)
                To Buyer: 

            	
              Fresca
                Worldwide Trading Corp.

            


    

    
      	 	 	
              806
                S. First St.

            


    

    
      	 	 	
              Fulton,
                NY 13069

            


    

     

    
      	 	
              (c)
                To Seller: 

            	
              Cobalt
                Blue, LLC

            


    

    
      	 	 	
              106
                Glenwood Dr. S.

            


    

    
      	 	 	
              Liverpool,
                NY 13089

            


    

     

    
      
        
        

      

      
        8

        
          

        

      

      
        
        

      

    

     

    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. 

    


     

    
      	
              The
                Seller:

            	
              Cobalt
                Blue, LLC

            
	 	 
	 	
              By:
                /s/ Mary
                Passalaqua                                                      
                

            
	 	
                   
                Mary Passalaqua, Managing Member

            
	 	 
	 	 
	
              The
                Buyer: 

            	
              Fresca
                Worldwide Trading Corp.

            
	 	 
	 	
              By:
                /s/ Margaret A.
                Burton                                                  

            
	 	
                   
                Margaret A. Burton, Secretary

            


    

    


    
      
        
        

      

      
        9