ASSET PURCHASE AND SALE AGREEMENT THIS AGREEMENT ("Agreement"), entered into as of the 22nd day of April 2009, by and between Plascal Corporation,(hereinafter the “Debtor” or "Seller"), having an address of 361 Eastern Parkway, Farmingdale, New York 11735 and Buster Enterprises, Inc., or its Designee (“Buster” or the “Buyer”) having an address at 3842 Windsor Drive, Bethpage, New York 11735. RECITALS WHEREAS, the Seller is in the business of the manufacture and production of flexible “PVC” from the premises known as and located at 361 Eastern Parkway, Farmingdale, New York 11735 (the “Premises”); WHEREAS, on or about April 2, 2009 (the "Filing Date"), the Seller filed a voluntary petition for relief in accordance with Chapter 11 of Title 11 of the United States Code (hereinafter, the "Bankruptcy Code") with the United States Bankruptcy Court for the Eastern District of New York (the “Court”). WHEREAS, the Seller has remained in possession of its assets and the management of its financial affairs as debtor-in-possession under sections 1107 & 1108 of the Bankruptcy Code; WHEREAS, Seller desires to sell, assign, and convey to Buyer and Buyer desires to purchase and accept the Purchasers Assets as defined herein: NOW, THEREFORE, for valuable consideration and the mutual covenants and agreements herein contained, Seller and Buyer agree as follows: ARTICLE I DEFINITIONS (a) “Approval Order” shall mean a final and non-appealable order of the Bankruptcy Court, in form and substance reasonably acceptable to the Purchaser, approving the transactions specified in and contemplated by this Agreement (including all of the terms and conditions hereof), and approving and authorizing the Debtor to consummate the transactions contemplated hereby. "Assumed and Assigned Contracts" means the Contracts that are assumed and assigned by the Seller to the Buyer, and assumed by the Buyer, under this Agreement. "Bankruptcy Case" shall the Debtor’s pending chapter 11 proceeding under Case number 09-72223-dte now pending in the Bankruptcy Court. "Bankruptcy Code" means title 11 of the United States Code, 11 U.S.C. § 101 et seq., as may be amended from time to time. "Bankruptcy Court" shall mean the United States Bankruptcy Court for the Eastern District of New York, at Central Islip. “Buyer” shall have the meaning ascribed to it in the Preamble. "Bill of Sale" shall have the meaning ascribed herein.
(b)
(c) (d) (e) (f) (g)
(h)
(i) (j) (k) (l)
(m) (n) (o)
(p)
(q) (r) (s) (t)
“Business Day" means a day other than a Saturday, Sunday or other day on which commercial banking institutions in New York City are authorized or required by applicable Law to close. "Claim" shall have the meaning ascribed in Section 101(5) of the Bankruptcy Code. “Closing" shall have the meaning ascribed in Section 6.1. "Closing Date" shall have the meaning ascribed in Section 6.1. “Cure Costs" means any and all fees, costs, charges, amounts and other obligations (including, without limitation, guarantees, advances, initial fees, up-front fees, or similar and additional fees) (a) whenever due under the Assumed and Assigned Contract (including, without limitation, the Development Documents), (b) which, if paid, would cure any default by the Debtor or the Estate under any Assumed and Assigned Contract and (c) to be paid on the Closing Date so as to allow the Seller to assume and assign, or assign as the case may be, to Buyer all the Estate's rights under the Assumed and Assigned Contracts as of the Closing Date. "Debtor" shall mean Plascal Corporation. "Deposit" shall have the meaning ascribed in Section 4.2. "Encumbrances" means any lien, equity, mortgage, pledge, hypothecation, rights of others, Claim, security interest, charge, encumbrance, title defect, title retention agreement, voting or other trust agreement, interest, license, option, call, charge, prior assignment, collateral security arrangement, conditional sales contract or similar restriction or limitation. "Final Order" means an order of the Bankruptcy Court as to which the time to file an appeal, a motion for rehearing or reconsideration, or a petition for writ has expired and no such appeal, motion, or petition is pending. "Filing Date" shall April 2, 2009. "Law" means any law, statute, code, ordinance, regulation, ruling, interpretation or other requirement of any Governmental Authority. "Purchase Price" shall have the meaning ascribed in Section 2. "Purchased Assets" shall mean (a) All of the Debtor’s inventory utilized by it in the operation of its business as well as (1) forklift; (1) Horizontal Bandsaw and (1) Stretch Wrapper. ARTICLE 2 Purchase and Sale
2.1 Sale and Purchase. Upon the terms and conditions hereinafter set forth, and subject to the entry of the Approval Order, Seller agrees to sell, assign, convey and deliver to Buyer, free and clear of all liens claims and Encumbrances of whatever kind or nature, all of the Seller’s right title and interest in and to all of the Purchased Assets, whether tangible or intangible, wherever such may be and Buyer agrees to buy and accept the Purchased Assets from Seller on the Closing Date.
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2.2 Purchase Price. The total purchase price (hereinafter referred to as the "Purchase Price") to be paid to Seller for the Assets by Buyer shall be the sum of $156,028.00 to be paid to the Seller as follows: (U) the sum of One Hundred and Forty One Thousand and Twenty Eight Dollars ($141,028.00) in the form of an unendorsed certified or cashiers check or by Federal Funds Wire Transfer of immediately available funds payable to the direct order of the Seller paid at the Closing less a credit for the Down Payment (the “Cash Purchase Price”);
2.3 Payment upon signing of this Agreement. Buyer has deposited the sum of $15,000.00 with Seller to be held by Seller in a non-interest bearing escrow account. (The “Down Payment”). 2.4 Allocation of Purchase Price. The Purchase Price shall be allocated as follows: Inventory Equipment $153,528.00 $ 2,500.00
ARTICLE II SELLER’S REPRESENTATION AND WARRANTIES 3.1 The Assets are being sold to Buyer are sold AS IS and WITH ALL FAULTS; no warranties of any kind are implied in this transaction. Any affirmation of fact or promise by Seller to Buyer with regard to the Assets shall not be regarded as part of the bargain evidenced by this document and shall not be deemed to create any express warranty that the Assets will conform to the affirmation or promise. 3.2 Authority. Seller has the authority to execute and deliver this Agreement, and each document to be delivered pursuant hereto, and to consummate the transaction contemplated hereby, subject to application for and entry of the Approval Order. 3.3 Validity. This Agreement is, and each Document to be delivered pursuant hereto, when so executed, will be, the valid and binding obligation of the Seller, enforceable in accordance with its terms, subject to application for and entry of the Approval Order. 3.4 Title to Assets. THE CONVEYANCE OF THE ASSETS BY SELLER TO BUYER SHALL BE FREE AND CLEAR OF ALL LIENS, CLAIMS AND ENCUMBRANCES OF WHATEVER KIND OR NATURE. TO THE EXTENT THE ASSETS INCLUDES ITEMS OF PERSONAL PROPERTY, THE TRANSFER SHALL BE "AS IS" AND WITHOUT WARRANTY, EXPRESS, STATUTORY, OR IMPLIED, AS TO DESCRIPTION, TITLE, CONDITION, LOCATION, QUALITY, FITNESS FOR ANY PARTICULAR USE OR PURPOSE, OR OTHERWISE.
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3.5 Brokerage Commissions, etc. Auctioneer. Seller has not retained or permitted any agent, finder or broker to act on its behalf in connection with the Agreement or the transaction contemplated hereby nor has it agreed to pay any person any fee or commission in the nature of a finder’s, broker’s or originator’s fee or commission. ARTICLE IV BUYER'S REPRESENTATIONS 4.1 In the event that Buyer designates an entity other than itself as Buyer, then Buyer represents to Seller as of the date hereof and as of the Closing Date that: (a) Should the Buyer designate a Corporation as its agent, the Corporation shall be duly organized, validly existing and in good standing under the laws of the State of New York. (b) Buyer has all requisite corporate powers and authority to carry on its business as presently conducted, to enter into this Agreement, to purchase the Assets on the terms described in this Agreement, and to perform its other obligations under this Agreement. The consummation of the transactions contemplated by this Agreement will not violate nor be in conflict with any provision of Buyer's charter, by-laws or governing documents or any material agreement or instrument to which Buyer is a party or by which Buyer is bound, or any judgment, decree, order, statute, rule or regulations applicable to Buyer; (c) The execution, delivery and performance of this Agreement and the transactions contemplated hereunder have been duly and validly authorized by all requisite corporate action on the part of Buyer; and (d) This Agreement constitutes, and all documents and instruments required hereunder to be executed and delivered by Buyer at Closing will when duly executed and delivered for value will constitute valid, legal and binding obligations of Buyer, enforceable against Buyer, in accordance with their respective terms. (e) Brokerage commissions, etc. Auctioneer. Buyer has not retained or permitted any agent, finder or broker to act on its behalf in connection with the Agreement or the transaction contemplated hereby nor has it agreed to pay any person any fee or commission in the nature of a finder’s, broker’s or originator’s fee or commission. 4.2 Representations and Warranties at Closing. The representations and warranties of Seller and Buyer contained in this Agreement shall be true and accurate on the Closing Date as though such representations and warranties were made at and as of that time. 4.3 Finances. The Buyer has, immediately available to it, or will have, prior to the Closing Date, funds and/or liquid assets, in an amount equal to the aggregate amounts necessary to consummate this transaction. However, it is the intent and agreement of the parties that this Agreement is not contingent, or conditioned upon availability of funds to the Buyer; and in the event
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that the Buyer fails, or refuses, to consummate this transaction at the Closing, in accordance with the terms and provisions hereof, because of an alleged unavailability of funds, then, the buyer shall be in default and Seller shall have the right to retain the Down Payment as liquidated damages. ARTICLE V CONDITIONS PRECEDENT 5.1 Conditions to Each Party's Obligation to Effect the Closing. The obligation of each party to effect the Closing is subject to the satisfaction or waiver on or prior to the Closing Date of the following condition: No Order or Law entered, enacted, promulgated, enforced or issued by any court or other Governmental Authority of competent jurisdiction or other legal restraint or prohibition affecting the Closing or seeking to prohibit the transactions contemplated under this Agreement (collectively, "Restraints") will be in effect; provided, however, that each of the parties will have used commercially reasonable efforts to prevent the entry of any such Restraints and to appeal as promptly as possible any such Restraints that may be entered. 5.2 Conditions to the Buyer’s Obligations to Effect the Closing.
The obligations of the Buyer to effect the Closing is subject to its satisfaction or waiver on or prior to the Closing Date of the following conditions: (a) Representations and Warranties. The representations and warranties of the Seller set forth in this Agreement shall be true and correct in all respects as of the Closing Date as though made on and as of the Closing Date (except to the extent such representations and warranties speak as of an earlier date); (b) Agreements and Covenants. Each of the agreements and covenants of the Seller to be performed and complied with pursuant to this Agreement prior to the Closing Date shall have been duly performed and complied with (g) Closing Deliveries. The Seller shall have delivered and fully performed all of the items required by Section 5.2 and all other items required to be delivered by the Seller pursuant to the terms and conditions of this Agreement; (h) Release of Encumbrances. Any Encumbrances on the Purchased Assets shall have been released pursuant to the Sale Order to the reasonable satisfaction of the Buyer; Material Adverse Change. There shall not have occurred after the date of this Agreement, a material adverse change in the Purchased Assets; (k) Order; Approval Order. The Bankruptcy Court shall have entered the Approval (j)
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(l) (m)
Appeals. the Approval Order shall be Final Order; Closing. The Closing shall have occurred on or before the Closing Date.
5.3 Conditions to the Seller’s Obligation to Effect the Closing. The obligation of the Seller to effect the Closing is subject to the satisfaction or waiver on or prior to the Closing Date of the following conditions: (a) Representations and Warranties. The representations and warranties of the Seller set forth in this Agreement shall be true and correct in all respects as of the Closing Date as though made on and as of the Closing Date (except to the extent such representations and warranties speak as of an earlier date); (b) Agreements and Covenants. Each of the agreements and covenants of the Seller to be performed and complied with pursuant to this Agreement by the Buyer prior to the Closing Date shall have been duly performed and complied with; and, (c) Closing Deliveries. The Buyer shall have delivered all of the items required by Section 5.3 and any other items required to be delivered by the Purchaser pursuant to the terms and conditions of this Agreement. (d) Approval Order. The entry of the Approval Order. ARTICLE VI THE CLOSING 6.1 Closing Date. The closing of this sale shall occur no later than the fifth day after the issuance of the Approval Order ( as defined herein) at a date and time which is mutually convenient to Buyer and Seller (the “Closing Date”) and will take place at The Law Offices of Avrum J. Rosen, PLLC, 38 New Street, Huntington, New York 11743.
6.2 Deliveries by Seller at Closing. On the Closing Date, Seller shall deliver to Buyer the following: (a) An instrument of Assignment substantially in the form attached hereto as Exhibit B” sufficient to convey, transfer and assign unto the Buyer all of the Seller’s right title and interest in and to the Purchased Assets, consistent with the provisions of this Agreement;
(b) A certified copy of the Approval Order which (i) authorizes and approves the sale and the transfer of the Assets by Seller to Buyer on the Closing Date pursuant to section
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363(b) & (f) of the Bankruptcy Code free and clear of all liens claims and encumbrances and (ii) authorizes the assumption and assignment of the Truck Leases to the Buyer; 6.3 Deliveries by Buyer at Closing. At Closing, Buyer shall deliver: (i) an unendorsed certified or cashiers check or Federal Wire Funds Transfer of immediate available funds payable to the direct order of Seller; (ii) in the amount of the Cash Purchase Price less a credit for $15,000.00 already received by Seller as the Down Payment; and (iii) a check made payable to the New York State Sales Tax representing the sales tax due on the sale of the Inventory (if any).
ARTICLE VII BANKRUPTCY COURT APPROVAL 7.1 Buyer acknowledges and understands that the sale contemplated by this Agreement will be made in accordance with the provisions of §§363 and 365 of the Bankruptcy Code with the Assets to be sold free and clear of all liens, claims, taxes and encumbrances of whatever kind or nature (the “Liens”), with such Liens, if any, if valid, to attach to the net proceeds of the Purchase Price, that is net of attorney’s fees and expenses of the sale reflected in this Agreement. 7.2 The obligations of Seller and Buyer hereunder and contingent upon the entry of an order of the Bankruptcy Court, pursuant to §363(b) and 363(f)(1), 363(f)(3) and 365 and other applicable provisions of the Bankruptcy Code which: (i) authorizes and approves the sale of the Assets pursuant to the terms of this Agreement; and (ii) authorize the Seller’s Assignment and Assumption of the Assumed and Assigned Contracts to the Buyer (the “Approval Order”). Buyer will cooperate in good faith with the Seller to secure the Approval Order, including, but not limited to, attending the hearing to consider the entry of the Approval Order (the “Sale Hearing”) and, if necessary, testifying before the Bankruptcy Court and providing documentary evidence as to Buyer’s financial wherewithal to perform the obligations of Buyer under this Agreement. In the event that the Bankruptcy Court enters an order denying the entry of the Approval Order, Seller shall return the Down-Payment to Buyer within seventy-two (72) hours of said denial. 7.3 The Buyer acknowledges and understands, that the Debtor will seek Bankruptcy Court approval of the terms and conditions of this Agreement, and, consistent with §363 of the Bankruptcy Code, such approval will be sought by the Trustee subject to any higher or better offers that may be tendered to the Trustee, and the Court, at the Sale Hearing. In seeking higher or better offers, if this Agreement is transferred or signed or accepted by an entity or an individual other than Buyer (a “Higher Sale”), the Buyer shall not be entitled to receive from the proceeds of any such higher sale, any break-up fee. 7.4 Furthermore, the terms and conditions of sale to govern the bidding at the Sale Hearing shall provide that in order to be considered by the Court and admissible on the date of the Sale Hearing, any competing offer (“Competing Offer”) must satisfy the following terms and conditions: (i) a Competing Offer shall provide for a Purchase Price of at least $5,000.00 more than
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the Purchase Price as provided for in this Agreement; (ii) the Competing Offer shall be substantially similar to the terms and conditions of this Agreement; (iii) a higher or better Competing Offeror must sign an Agreement agreeing to be bound by the terms and conditions of this Agreement; (iv) the Competing Offer shall not be contingent upon the receipt of financing necessary to its consummation, and the competing offer shall have demonstrated, to the sole satisfaction of the Trustee and his counsel, evidence of its ability to conclude the transaction upon the terms and conditions of this Agreement, without delay; (v) the Competing Offer shall not be conditioned upon the outcome of unperformed due diligence by the Competing Offeror with respect to the Assets that are the subject of this Agreement; (vi) the Competing Offeror shall provide, at or before the Sale Hearing, a certified check made payable to Avrum J. Rosen, Esq., as Attorney, the sum of $15,000.00 as a Down Payment; and (vii) in the case of any subsequent competing offer (“Subsequent Competing Offer”) received from any party, which may, include, without limitation, the Buyer (after a prior competing bid has been received) which satisfies the conditions set forth above, such Competing Offer shall provide for an aggregate consideration at least $5,000.00 in excess of that provided by the prior better offer and shall otherwise comply with all conditions of the Agreement. ARTICLE VIII ADDITIONAL PROVISIONS 8.1 Further Assurances. After the Closing, each of the parties will execute, acknowledge and deliver to the other such further instruments, and take such other action as may be reasonably requested in order to more effectively assure to said party all of the respective properties, rights, titles, interests, estates, and privileges intended to be assigned, delivered or inuring to the benefit of such party in consummation of the transactions contemplated hereby. 8.2 Incidental Expenses. Buyer shall bear and pay all filing, recording or registration fees of any assignment or conveyance delivered hereunder. Each party shall bear its own respective expenses incurred in connection with the closing of this transaction, including its own consultant's fees, attorneys' fees, accountants' fees and other similar costs and expenses. 8.3 Entire Agreement. This instrument together with the Approval Order embody the entire agreement between the parties and may be supplemented, altered, amended, modified or revoked by writing only signed by Seller and Buyer. The headings herein are for convenience only and shall not in any way affect the meaning of this Agreement. THIS AGREEMENT SHALL BE GOVERNED BY, 8.4 Governing Law. CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE UNITED STATES AND THE STATE OF NEW YORK. 8.5 Exhibits. All exhibits and schedules hereto which are referred to herein are hereby made a part hereof and incorporated herein by reference. In the event of any conflict or inconsistency between the terms and provisions of this Agreement and the terms and provisions of any exhibit or schedule hereto, the terms and conditions of this Agreement shall control. Although
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not attached hereto, the Approval Order is incorporated herein and made an integral part of this Agreement. 8.6 Waiver. Any of the terms, provisions, covenants, representations, warranties or conditions hereof may be waived, only by a written instrument executed by the party waiving compliance. The failure of any party at any time or times to require performance of any provision hereof shall in no manner affect such parties right at a later date to enforce the same. No waiver by any party or any condition, or of the breach of any term, provision, covenant, representation or warranty contained in this Agreement, whether by conduct or otherwise, in any one or more instances, shall be deemed to be construed as a further or continuing waiver of any such condition or breach or a waiver of any other condition or of the breach of any other term, provision, covenant, representation or warranty. 8.7 Binding Effect; Assignment. All the terms, provisions, covenants, representations, warranties and conditions of this Agreement shall be binding upon and inure to the benefit of and be enforceable by the parties hereto and their respective successors and assigns; but this Agreement and the rights and obligations hereunder shall not be assignable or delegable by either party without the express written consent of the non-assigning or non-delegating party. 8.8 Severability. If any term or other provision of this Agreement is invalid, illegal or incapable of being enforced by reason of any rule of law or public policy, all other conditions and provisions of this Agreement shall nevertheless remain in full force and effect so long as neither the economic nor legal substance of the transactions contemplated hereby is materially affected in any adverse manner to either Buyer or Seller. Upon such determination that any term or other provision is invalid, illegal or incapable of being enforced, the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in an acceptable manner to the end that the transaction contemplated hereby are fulfilled to the extent possible. IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by their duly authorized officers as of the date first above written. Plascal Corporation Debtor and Debtor in Possession and Seller By: S/Sheldon Eskowitz Sheldon Eskowitz, Secretary/Treasurer
Buster Enterprises, Inc. Buyer
By:
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S/Mary Zimand
Mary Zimand
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