ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT, dated as of March 13, 2007, is by
and between
FIVE STAR PRODUCTS, INC., a Delaware Corporation (the "Purchaser"),
and
RIGHT-WAY DEALER WAREHOUSE, INC., a Massachusetts corporation (the
"Seller").
A. On January 22, 2006, Seller filed a petition under Chapter 11 of
the
United States Bankruptcy Code ("Bankruptcy Code") with the
Bankruptcy Court for
the District of Massachusetts ("Bankruptcy Court").
B. The parties hereto wish to provide for the terms and conditions
upon
which Purchaser will, subject to Bankruptcy Court Approval,
purchase those
Assets of Seller (as defined herein) used in or relating to the
business
conducted by the Seller as of the date of this Agreement (the
"Business").
C. The parties hereto wish to make certain representations,
warranties,
covenants and agreements in connection with the purchase of the
Assets and also
to prescribe various conditions to such transaction.
Accordingly, and
in consideration of the representations, warranties,
covenants, agreements and conditions herein contained, the parties
hereto agree
as follows:
1.
PURCHASE OF ASSETS
1.1 Assets to
be Purchased.
(a) Upon the terms and subject to the conditions of this
Agreement, Seller will sell, transfer, convey, assign and deliver
to
Purchaser, and Purchaser will purchase, at the Closing
(hereinafter
defined), all of the assets of Seller used primarily in the
Business,
of every nature, kind and description, tangible and intangible,
real,
personal or mixed, whether or not carried or reflected on the books
and
records of Seller, excepting only the Excluded Assets (as
hereinafter
defined). The assets to be sold to Purchaser are sometimes
hereinafter
referred to as the "Assets". The Assets shall include, without
limitation, the following assets which relate primarily to the
Business:
(i) all machinery and equipment, computer equipment,
fixtures, furniture, office equipment, tools, vehicles,
software and other tangible personal property owned by Seller
and used exclusively
in the operation of the facility located
at 1202 Metropolitan Avenue, Brooklyn, New York (the "Brooklyn
Business") including, but not limited to, all such personal
property identified on Exhibit 1.1(a)(i) (collectively, the
"Personal Property");
(ii) all inventory of Seller wherever located,
including raw materials, work-in process, goods in transit,
which shall be reflected by purchase orders entered into in
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the normal course of business (the "Goods in Transit"),
finished goods and rights to consigned inventory (if any)
which inventory will be specifically identified as of the
Closing (the "Inventory");
(iii) all of Seller's interest in customer lists
related primarily to the Business;
(iv) all governmental and other permits, licenses,
approvals, certificates of inspection, filings, franchises and
other authorizations relating to the operations of the
Brooklyn Business (the "Permits and Licenses");
(v) copies of all books, records, sales literature
and other data of Seller relating to the Brooklyn Business,
provided, however that Seller shall allow Purchaser access to
all original books, records and data relating to the
accounting, finances or corporate organization of the Business
for four years after the Closing upon reasonable requests
therefor;
(vi) all accounts receivable of Seller as of the
Closing (the "Accounts Receivable");
(vii) all claims, causes of action and rights of
recovery (including, without limitation, under insurance
policies) which relate to the Accounts Receivable;
(viii) all rights of Seller to all trade names and
marks of Seller, including, but not limited to the names
identified on Exhibit 1.1(a)(viii) hereto, and any and all
variations thereof and all marks related thereto; and
(ix) telephone, facsimile and telex numbers, and all
listings in all telephone books and directories for the
Brooklyn Business;
(x) any and all of Seller's goodwill in and going
concern value of the Business.
Other than Assumed Liabilities (hereinafter defined), all
Assets will be sold, transferred, conveyed, assigned and delivered
to
Purchaser free and clear of all liens, charges, mortgages,
pledges,
encumbrances, or other security interests of any kind or
nature,
arising by operation of law or otherwise (collectively
"Security
Interests"), liabilities, obligations, rights of third parties
(express
or implied), restrictions, licenses, rights of reclamation, claims
or
interests of any kind or nature, including any "interest in
property"
as defined in Section 363 of the Bankruptcy Code.
(b) Notwithstanding the foregoing, Seller will not sell,
transfer, convey, assign or deliver to Purchaser, and Purchaser
will
not purchase from Seller, the following assets (the "Excluded
Assets"):
(i) the consideration delivered to Seller pursuant to
this Agreement;
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(ii) the minute books (and any documents related to
Seller's organization or foreign qualification contained in
such minute books), corporate seal and stock records, other
than those relating exclusively to the Brooklyn Business;
(iii) choses in action, shares of capital stock in
and claims against Allpro Corporation, including all rebates
and causes of action against Allpro Corporation;
(iv) any claims, causes of action and choses in
action of Seller including those arising under Sections 362,
510 and 540 through 550 of the Bankruptcy Code;
(v) cash, money and deposits with financial
institutions and others, certificates of deposit, commercial
paper, notes, evidences of indebtedness, stocks, bonds and
other investments and intercompany indebtedness;
(vi) any federal and state tax refunds due to Seller;
(vii) all insurance policies, including all pre-paid
insurance;
(viii) all vehicles, other than those used
exclusively in the operation of the Brooklyn Business; and
(ix) all machinery and equipment, computer equipment,
fixtures, furniture, office equipment, tools, test equipment,
tooling, boats, vehicles, software and other tangible personal
property of Seller other than that which is exclusively used
in the Brooklyn Business; and
(x) any inventory consisting of pesticides which do
not comply with applicable laws, rules, regulations or
ordinances.
(c) Within five (5) days of the date of this Agreement,
Purchaser shall designate those executory contracts and
unexpired
leases associated with the Brooklyn Business that Purchaser
desires
Seller to assume and assign to Purchaser (the "Designated
Contracts");
provided that Purchaser may not designate any insurance contracts
for
assumption or assignment. Subject to obtaining the approval of
the
Bankruptcy Court, at Closing, Seller shall assume and/or assign to
the
Buyer all of the Designated Contracts. To permit the assumption
and
assignment of any of the Designated Contracts to Purchaser pursuant
to
this Agreement, Purchaser hereby agrees to (i) pay in cash at
Closing
(A) any associated cure amount required with respect to the
Designated
Contracts, and (B) any attorneys' fees and costs, interest
and/or
penalties allowed by the Bankruptcy Court with respect to the
Designated Contracts, and (ii) to provide adequate assurance of
future
performance under the Bankruptcy Code with respect to such
Designated
Contracts.
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1.2
Liabilities.
(a) Upon satisfaction of all conditions to the obligations of
the parties contained herein (other than such conditions as have
been
made in accordance with the terms hereof), Purchaser will
assume
accrued 2007 vacation obligations to Seller employees hired by
Purchaser after the Closing, which vacation obligations shall
not
exceed $[____] (the "Assumed Liabilities").
(b) Seller expressly understands and agrees that, except for
the Assumed Liabilities and the amount due to Seller's vendors on
Trade
Credit Inventory and for Goods in Transit, both as provided in
Section
1.5(a)(ii), Purchaser has not agreed to pay, will not be required
to
assume and will have no liability or obligation, direct or
indirect,
absolute or contingent, for the liabilities of Seller or any
respective
affiliates or associates, which liabilities will, as between Seller
and
Purchaser remain the sole responsibility of Seller (the
"Retained
Liabilities"). Retained Liabilities shall include, without
limitation,
any and all obligations of Seller for any accrued severance pay and
any
and all obligations of Seller to Seller's vendors, employees or
other
creditors.
(c) Purchaser shall remove the Inventory located at Seller's
Norwood, Massachusetts facility (the "Non-Brooklyn Inventory")
within
ten (10) days after the Closing Date. In order to facilitate
such
removal, Seller shall use its best efforts to retain a
sufficient
number of employees at the Norwood facility for three business
days
following the Closing Date at Purchaser's sole cost and expense.
After
the Closing Date, Purchaser shall be solely responsible for the
costs
associated with the Non-Brooklyn Inventory, including removal,
shipping
and security costs; provided that Seller shall pay any rent due for
the
Norwood facility through the end of the calendar month in which
the
Closing occurs. Purchaser acknowledges that Seller intends to
layoff
any
employees associated with the Norwood facility on the Closing
Date
(subject to the three-day retention provided for above),and to
terminate any insurance respecting such facilities on the tenth
day
following the Closing Date.
1.3 Purchase
Price.
(a) Subject to adjustment pursuant to Section 1.5 hereof, the
total consideration to be paid by Purchaser to Seller for the
Assets
(the "Purchase Price") will be a cash payment equal to Five
Million
Dollars ($5,000,000) minus the amount of any reduction of the
Purchase
Price pursuant to Section 1.5 hereof (the "Cash
Consideration").
(b) Purchaser will pay the Cash Consideration at the Closing
to Seller by certified bank check or wire transfer of
immediately
available funds to an account designated by Seller.
(c) A deposit of Two Hundred Thousand Dollar ($200,000) (the
"Deposit") shall be paid to Seller upon executing the Agreement
by
certified bank check or wire transfer of immediately available
funds to
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an account designated by Seller. If Purchaser fails to consummate
the
transactions contemplated in this Agreement through no fault of
Seller,
the Deposit shall be forfeited to Seller as Seller's sole and
exclusive
remedy at law or in equity.
1.4
Closing.
Unless this Agreement has been terminated and the transactions
contemplated have been abandoned pursuant to Article 7 hereof, a
closing (the
"Closing") will be held on second business day following the entry
of the Sale
Order (as defined herein), but in any event not later than April
13, 2007 (the
"Closing Date"), provided that no stay of effectiveness of the Sale
Order is in
effect. The Closing will be held at such place as the parties may
agree, at such
time as the parties may agree, at which time and place the
documents and
instruments necessary or appropriate to effect the transactions
contemplated
herein will be exchanged by the parties.
1.5 Closing
Adjustments of Purchase Price.
(a) Working
Capital Adjustment.
(i) Seller shall in good faith take a physical
inventory of the remaining inventory of the Business as of the
close of business on the day immediately prior to the Closing
Date (the "Pre-Closing Inventory"). Such physical inventory
shall be priced out on the same cost basis as the inventory
figures and working capital calculation provided by Seller to
Purchaser as of February 14, 2007 ("February Working
Capital"). Purchaser and Seller agree that the February
Working Capital was $6,575,000, consisting of inventory
aggregating $3,863,000 and accounts receivable aggregating
$2,712,000.
(ii) Seller shall deduct from the amount of the
Pre-Closing Inventory the value (priced out on the same cost
basis as the February Working Capital) of the inventory
purchased on credit at the Brooklyn Business (the "Trade
Credit Inventory") which shall be specifically identified by
Seller in a schedule delivered to Purchaser prior to the
Closing. Hereinafter, the amount of the Pre-Closing Inventory
less the value of the Trade Credit Inventory shall be referred
to as the "Closing Date Inventory" (not to include any Goods
in Transit).
(iii) Seller and Purchaser shall promptly after the
execution of this Agreement meet for the purpose of designing
a process to take an inventory described above and agree with
respect to the design and taking of such inventory, and
Purchaser shall have the right and Seller shall permit
Purchaser to participate in such inventory and review the
calculations related to costing of the physical inventory, in
each case on such basis as Purchaser shall reasonably request.
(iv) Purchaser shall assume and pay any amount due
for: (A) the Trade Credit Inventory, provided, however, that
such amount shall not exceed Eighty Thousand Dollars
($80,000), and (B) the Goods in Transit.
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(v) As of the close of business on the day
immediately prior to the Closing Date, an up-to-date accounts
receivable aged trial balance will be run (the "Closing Date
A/R"). Seller shall execute a certificate setting forth its
good faith estimate of the Closing Date A/R. The sum of the
Closing Date Inventory and the Closing Date A/R shall
hereinafter be referred to as the "Closing Working Capital."
(vi) The working capital adjustment to the Purchase
Price shall be equal to the product of (x) 0.76 and (y) the
total of (a) the February Working Capital, minus (b) the
Closing Working Capital (the "Working Capital Adjustment").
(vii) The Purchase Price shall be decreased by the
Working Capital Adjustment.
(b) Payable Adjustment. The Purchase Price shall be increased
by the amount of any ordinary course post-petition payables related
to the
Brooklyn Business that are currently due and payable by Seller at
the Closing,
including current wages, utilities, and normal recurring expenses
provided that
(i) Seller continues to pay its payables timely and in the ordinary
course
within normal billing terms, (ii) Seller will pay April rent for
the Leased
Premises as required under the existing lease agreement, and (iii)
Seller will
be responsible for paying and reporting of all withholding taxes,
social
security, Medicare and similar expenses (the "Payable Adjustment"),
and provided
further that the Payable Adjustment shall not exceed Fifty Thousand
Dollars
($50,000).
(c) Notwithstanding the foregoing, in no event shall the
Purchase Price exceed Five Million Dollars ($5,000,000).
1.7
Instruments of Transfer to Purchaser.
(a) At the Closing, Seller will deliver to Purchaser:
(i) executed deeds, assignments, bills of sale or
certificates of title, dated the Closing Date, transferring to
Purchaser all of Seller's right, title and interest in and to
the Assets, in form and substance reasonably satisfactory to
Purchaser and its counsel;
(ii) the certificates required of Seller pursuant to
Section 5.9 hereof;
(iii) all data relating to the Assets, property,
goodwill and business included in the Seller's business,
except those books and records related to the Excluded Assets;
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(iv) certified copy of the Sales Order, as defined in
Section 4.3, in form and substance satisfactory to Purchaser;
(v) certificate of an officer certifying that, as of
the time of the Closing, the Sale Order is not subject to
appeal, reversal, reconsideration, modification or amendment
and is not subject to a stay or injunction;
(vi) the duly executed Purchaser Lease required
pursuant to Section 5.11 hereof; and
(vii) any other documents reasonably requested by
Purchaser, to confirm the accuracy of the representations and
warranties and the performance of the agreements of Seller
hereunder.
(b) Seller will take all other actions necessary to put
Purchaser in actual possession and operating control of the Assets;
and
(c) At the Closing, Purchaser will deliver to Seller the
following:
(i) the Purchase Price to be paid at the Closing;
(ii) executed Employment Agreement, required pursuant
to Section 5.12 hereof;
(iii) the certificates referred to in Section 6.6
hereof; and
(iv) any other documents reasonably requested by
Seller, to confirm the accuracy of the representations and
warranties and the performance of the agreements of Purchaser
hereunder.
2.
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller hereby represents and warrants to Purchaser as of the
date
hereof as follows and as of the Closing as follows, and confirms
that Purchaser
is relying upon the accuracy of each such representation and
warranty in
connection with the purchase of the Assets and completion of the
transactions
contemplated hereby:
2.1 Corporate
Status; Authorization.
Seller is a corporation duly incorporated, validly existing and in
good
standing under the laws of the jurisdiction of its incorporation.
Subject to
Bankruptcy Court Approval, Seller has full power and authority to
enter into
this Agreement and to carry out the transactions contemplated
herein. The Board
of Directors of Seller has duly authorized the execution, delivery
and
performance of this Agreement and the consummation of the
transactions
contemplated herein. This Agreement has been duly and validly
executed and
delivered by Seller and no other corporate action is necessary.
Subject to
Bankruptcy Court approval, this Agreement will be valid and binding
legal
obligation of Seller, enforceable against it in accordance with its
terms.
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2.2
Non-Contravention.
Purchaser acknowledges that the Assets are subject to various
claims
and Liens, including those asserted by Bank of America, creditors
asserting
reclamation claims and others. Subject to receipt of the Sale
Order, neither the
execution, delivery and performance of this Agreement nor the
consummation of
the transactions contemplated herein will: (i) violate or be in
conflict with
any provision of Seller's articles of organization or bylaws; (ii)
be in
conflict with, or constitute a default, however defined (or an
event which, with
the giving of due notice or lapse of time, or both, would
constitute such a
default), under, or cause or permit the acceleration of the
maturity of, or give
rise to any right of termination, cancellation, imposition of fees
or penalties
under any permit or license necessary for the operation of the
Brooklyn
Business; (iii) result in the creation or imposition of any
Security Interest,
conditional or installment sales agreement, claim, easement, right
of way,
tenancy (other than as relates to Purchaser Lease, as defined
herein), covenant,
encroachment, restriction or charge of any nature (whether or not
of record) (a
"Lien"), upon the Assets, or any debt, obligation, contract,
agreement or
commitment to or by which the Assets are or may be bound; or (iv)
violate any
statute, treaty, law, judgment, writ, injunction, decision, decree,
order,
regulation, ordinance or other similar authoritative matters
(referred to herein
individually as a "Law" and collectively as "Laws") of any foreign,
federal,
state or local governmental or quasi-governmental, administrative,
regulatory or
judicial court, department, commission, agency, board, bureau,
instrumentality
or other authority (referred to herein individually as an
"Authority" and
collectively as "Authorities").
2.3 Consents
and Approvals.
Subject only to Bankruptcy Court Approval and the notices required
to
be obtained in seeking such approval, and to the best of Seller's
knowledge, no
consent, approval, order or authorization of or from, or
registration,
notification, declaration or filing with ("Consent") any individual
or entity,
including without limitation any Authority, is required in
connection with the
execution, delivery or performance of this Agreement by Seller or
the
consummation by Seller of the transactions contemplated herein.
2.4 Absence of
Certain Changes.
Except as caused by or disclosed in Seller's Chapter 11 case, and
to
the best of Seller's knowledge, since February 14, 2007, Seller has
owned the
Assets and operated the Brooklyn Business in the ordinary course of
business and
consistent with past practice. Without limiting the generality of
the foregoing,
subject to the foregoing exceptions:
(a) the Brooklyn Business has not experienced any change which
has had a Material Adverse Effect on the Brooklyn Business or
experienced any event or failed to take any action which
reasonably
could be expected to result in a Material Adverse Effect on the
Brooklyn Business;
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(b) the Brooklyn Business and the Assets have not suffered any
material loss, damage, destruction of property or other casualty
to
property (whether or not covered by insurance);
(c) Seller has not suffered any loss of officers, employees,
dealers, distributors, independent contractors, customers or
suppliers
which had or may reasonably be expected to result in a Material
Adverse
Effect on the Brooklyn Business; and
(d) no event has taken place which if consummated following
the date hereof would constitute a violation of Section 4.1
hereof.
2.5
Assets.
(a) Seller has good and marketable title to all of the Assets.
(b) Subject to the approval of the Bankruptcy Court, Seller
has full right and power to, and at the Closing will, deliver
to
Purchaser good title to all of the Assets, free and clear of any
Lien.
(c) The machinery, equipment and other Personal Property
included in the Assets being sold to Purchaser are being sold on an
"as
is, where is" basis; provided, however, that to the best of
Seller's
knowledge, the Personal Property is presently in working order for
its
intended use.
(d) The Assets include all of the property and assets, real,
personal and mixed, tangible and intangible, presently used to
carry on
the Brooklyn Business, and the Assets are adequate to carry on
the
Brooklyn Business as presently conducted.
(e) Seller does not own any real properties. Seller is not a
foreign person and is not controlled by a foreign person, as the
term
foreign person is defined in Section 1445(f)(3) of the Internal
Revenue
Code.
2.6
Receivables and Payables.
(a) Seller
has good right, title and interest in and to the
inventory and trade accounts receivable constituting the
Assets;
(b) none of such trade accounts receivable is subject to any
Lien, other than the Liens set forth in the Debtor's bankruptcy
schedules and statement of financial affairs (collectively the
"Bankruptcy Schedules");
(c) all of the trade accounts receivable owing to Seller
constitute valid and enforceable claims arising from bona fide
transactions in the ordinary course of business; and;
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(d) the aging schedule of the trade accounts receivable of
Seller to be set forth on the report of the Closing Date A/R will
be
complete and accurate.
2.7
Litigation.
Except for the Chapter 11 case and the DEC Action (as defined
herein),
there is no legal, administrative, arbitration, or other
proceeding, suit, claim
or action of any nature or investigation, review or audit of any
kind (including
without limitation a proceeding, suit, claim or action, or an
investigation,
review or audit, involving any environmental Law or matter),
judgment, decree,
decision, injunction, writ or order pending, noticed, scheduled,
or, to the
knowledge of Seller, threatened or contemplated by or against or
involving
Seller, the Assets or the Brooklyn Business or Seller's officers,
directors,
agents or employees (but only in their capacity as such), whether
at law or in
equity, before or by any person or entity or Authority, or which
questions or
challenges the validity of this Agreement or any action taken or to
be taken by
the parties hereto pursuant to this Agreement or in connection with
the
transactions contemplated herein.
2.8 Tax
Matters.
To the best of Seller's knowledge, there are no facts or
circumstances
which could, directly or indirectly, subject Purchaser or any of
its affiliates
to Liability of any nature with respect to Taxes of Seller or
subject the Assets
to any Lien resulting from the failure to pay, withhold or
otherwise satisfy
outstanding Taxes of Seller or any other party.
2.9 Benefit
Plans.
To the best of Seller's knowledge, there are no facts or
circumstances
which could, directly or indirectly, subject Purchaser or any of
its affiliates
to any Liability of any nature with respect to any pension,
welfare, incentive,
perquisite, paid time off, severance or other benefit plan, policy,
practice or
agreement sponsored, maintained or contributed to by Seller or any
affiliate, to
which Seller or any affiliate is a party or with respect to which
Seller or any
affiliate could have any Liability, other than Liabilities which
are expressly
assumed by Purchaser.
2.10
Contracts and Commitment; No Default.
Exhibit 1.1(a) contains an accurate and complete list and brief
description of all machinery, tools, equipment and other tangible
personal
property (other than inventory and supplies) owned, leased or used
by Seller in
the operation of the Brooklyn Business, except for items having a
cost of less
than $5,000. Seller has provided Purchaser with either a copy of or
a summary
description of all leases and Liens relating thereto, identifying
the parties
thereto, the rental or other payment terms, expiration date and
cancellation and
renewal terms thereof.
2.11
Environmental and Safety Matters.
(a) To the best of Seller's knowledge and except for the DEC
Action, there are no facts or circumstances which could, directly
or
indirectly, subject Purchaser or any of its affiliates to any
Liability
of any nature whatsoever arising out of or related to any pollution
or
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threat to human health or the environment or violation of any
Environmental and Occupational Safety and Health Law that is
related in
any way to Seller or any affiliate or any previous owner's or
operator's management, use, control, ownership, or operation of
the
Assets, any property, or the Brooklyn Business, including
without
limitation, any on-site or off-site activities involving
Environmentally Regulated Materials, and that occurred, existed,
arose
out of conditions or circumstances that occurred or existed, or
was
caused, in whole or in part, on or prior to the date hereof.
(b) To the best of Seller's knowledge and except for the DEC
Action:
(i) All Environmental Permits (as hereinafter
defined) respecting the Brooklyn Business and the Assets have
been obtained, are in full force and effect and Seller is in
compliance therewith in all material respects.
(ii) There are no agreements, consent orders,
decrees, judgments, license or permit conditions or other
orders or directives of any federal, state or local court,
governmental agency or authority relating to Environmental
Laws and pertaining to the past, present or future ownership,
use, operation, sale, transfer or conveyance of the Leased
Premises (as hereinafter defined) which require any change in
the present condition of the Leased Premises or any work,
repairs, construction, containment, clean-up, investigations,
studies, removal or other remedial action or capital
expenditures with respect to the Leased Premises.
(iii) There are no actions, suits, claims or
proceedings, pending or threatened, which could cause the
occurrence of expenses or costs of any nature or description
or which seek money damages, injunctive relief, remedial
action or any other remedy that arise out of, relate to or
result from (A) a violation or alleged violation of any
applicable Environmental Law or non-compliance or alleged
non-compliance with any Environmental Permit, (B) the presence
of any Hazardous Substance or a Release or the threat of a
Release on, at or from the Leased Premises or any property
adjacent to or within the immediate vicinity of the Leased
Premises,
or (C) human exposure to any Hazardous Substance,
noises, vibrations or nuisances of whatever kind to the extent
the same arise from the condition of the Leased Premises or
the ownership, use, operation, sale, transfer or conveyance
thereof or the Brooklyn Business.
(iv) Seller's current operations are in compliance
with, Seller has not been charged with non-compliance with,
Seller has not received any notice of alleged non-compliance
with, and to the best of Seller's knowledge, Seller is not
under investigation for its failure to comply in any respect
with any and all statutes, laws, ordinances, rules,
regulations, permits, licenses, orders and/or directives of
any Governmental Agency, governing or regulating the presence,
use generation, storage, transportation, handling,
transferring, disposing, discharging or emitting of any
materials or substances, or constituents or components
thereof, that have been determined by a Governmental Agency to
be of a hazardous, toxic or pollutive nature ("Regulated
Materials").
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(v) Except in a manner that is in compliance with
applicable law, no employee of Seller has been exposed to any
Regulated Materials in the course of employment with Seller.
(vi) Without limiting the scope of the foregoing,
Seller has made available to Purchaser any and all
environmental audit or similar reports and analyses within the
possession or control of Seller or any Shareholder concerning
the environmental compliance status of Seller or the Leased
Premises and any presence thereon of any Hazardous Substances,
pollutants, and contaminants.
All capitalized terms used in this Section 2.11 and elsewhere in
this
Agreement and not heretofore defined shall have the meanings set
forth below:
"DEC Action" means that action commenced against Seller by the New
York
State Department of Environmental Conservation under Index No.
CO2-20070112-1.
"Environment" means any water or water vapor, land surface or
subsurface, air, fish, wildlife, biota and all other natural
resources.
"Environmental Laws" means all federal, state an local
environmental,
land use, zoning, health, chemical use, safety and sanitation laws,
statutes,
ordinances and codes relating to the protection, preservation or
restoration of
the Environment or governing the exposure to, use, storage,
treatment,
generation, transportation, processing, handling, production or
disposal of
Hazardous Substances and the rules, regulations, policies,
guidelines,
interpretations, decisions, orders and directives of f
