Exhibit 2
ASSET PURCHASE
AGREEMENT
This Asset Purchase Agreement (the
“Agreement”) entered into on November 29, 2004, by,
between and among May and Scofield, LLC, a Michigan limited
liability company (“Buyer 1”), M&S Ohio Real
Estate Holdings LLC, a Michigan limited liability company and a
wholly-owned subsidiary of Buyer 1 (“Buyer 2,” and
together with Buyer 1, the “Buyer”), Strydel,
Inc., an Ohio corporation (the “Seller”), and The Ohio
Art Company, an Ohio corporation (the “Seller’s
Stockholder”). Buyer, Seller and Seller’s
Stockholder are referred to collectively herein as the
“Parties.”
This Agreement contemplates a
transaction in which Buyer will purchase all of the Acquired Assets
(as defined below) in return for the consideration and on the terms
set forth in this Agreement.
Now, therefore, in consideration of the premises
and the mutual promises herein made, and in consideration of the
representations, warranties, and covenants herein contained, the
Parties agree as follows.
1.
Definitions
.
“Acquired Assets” means
all Seller’s right, title, and interest in and to the
following assets: (a) the Real Property; (b) all machinery
and equipment (including furniture, tools, jigs, and dies) located
at the Facility; (c) all inventory (including raw materials and
supplies, goods in process and finished goods) located at the
Facility; (d) all Prepaid Tooling purchased or owned by Seller or
currently in development; (e) the leases, subleases, and rights
thereunder (but only to the extent the obligations of Seller under
such leases or subleases are specifically assumed hereunder by
Buyer) set forth on Exhibit A ; (f) the agreements and
contracts set forth on Exhibit B and all contracts between the
Seller, on one hand, and either General Motors Corporation or
Norplas, on the other hand; (g) all approvals, permits, licenses
and orders (but only to the extent the obligations of Seller under
such approvals, permits, licenses and orders are specifically
assumed hereunder by Buyer); (h) the corporate name “Strydel,
Inc.” and all telephone numbers of Seller; and (i) all
customer records, ledgers, files, correspondence and lists
exclusively relating to the Business; provided, however, that the
Acquired Assets shall not include (i) the corporate charter,
taxpayer and other identification numbers, seals, minute books,
stock transfer books, and other documents relating to the
organization, maintenance, and existence of Seller as a
corporation; (ii) any and all intellectual property; (iii)
tax records and liability records of Seller; (iv) any of the rights
of Seller under this Agreement; (v) accounts, notes and other
receivables; (vi) all cash, cash equivalents and short-term
investments; (vii) all of the contracts set forth on
Exhibit C ; (viii) any Tax credit or Tax refund paid or
payable with respect to the Business or to the ownership of the
Business or to the ownership of the Acquired Assets prior to the
Effective Time; (ix) items sold, transferred, disposed of or
consumed and contracts and other agreements terminated prior to
Closing; (x) Customer-Owned Tooling; (xi) financial and employment
records, ledgers, files, correspondence and lists of Seller; and
(xii) any and all other assets of Seller (including any net
operating loss carry forwards) not specifically included in the
definition of Acquired Assets.
“Adverse Consequences”
means all actions, suits, proceedings, hearings, investigations,
charges, complaints, claims, demands, injunctions, judgments,
orders, decrees, rulings, damages, penalties, fines, costs,
reasonable amounts paid in settlement, liabilities, obligations,
taxes, liens, losses, liabilities, damages, expenses, and fees
(including court costs and reasonable attorneys’ fees and
expenses).
“Assumed Liabilities”
means (i) any amounts outstanding on open purchase orders or
incurred in the Ordinary Course of Business related to the Prepaid
Tooling for which Seller has not received an invoice; (ii) any
liability arising after the Effective Time with respect to the
agreements and contracts described in Exhibit B and all
contracts between the Seller, on the one hand, and either General
Motors Corporation or Norplas, on the other hand (in all cases
other than any liability to the extent arising due to a breach by
Seller that occurred prior to the Effective Time to the extent such
liability arises as the result of such breach); (iii) any liability
of Seller arising after the Effective Time under any contract
included in the Acquired Assets that is entered into by Seller
after the date hereof in accordance with the provisions of this
Agreement (other than any liability to the extent arising due to
breach by Seller that occurred prior to the Effective Time to the
extent such liability arises as a result of such breach); (iv) all
liabilities with respect to possession of the Prepaid Tooling and
Customer-Owned Tooling incurred after the Effective Time; (v) any
and all liabilities relating to, or arising due to, the
acquisition,
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ownership or use of any of the Acquired Assets
after the Effective Time; (vi) any liability of or relating to
Hazardous Materials released or disposed of on the Real Property
after the Effective Time; (vii) any liability of Seller described
in Exhibit D ; and (viii) any liabilities arising out of the
operation and use of the Acquired Assets and Buyer’s leasing,
ownership or operation of Real Property on and after the Effective
Time.
“Business” means
Seller’s business of manufacturing custom injection molded
plastic components and the assembly thereof by Seller.
“Buyer” has the meaning
set forth in the preface above.
“Closing” has the
meaning set forth in §2(e) below.
“Closing Date” has the
meaning set forth in §2(e) below.
“Code” means the
Internal Revenue Code of 1986, as amended.
“Consents” has the
meaning set forth in §8(a)(iii) below.
“Customer-Owned Tooling”
means any tools owned by a customer of Seller located at the
Facility.
“Disclosure Schedule”
has the meaning set forth in §3 below.
“Effective Time” has the
meaning set forth in §2(e) below.
“Environmental, Health, and
Safety Requirements” shall mean all Legal Requirements, all
judicial and administrative orders, and all common law concerning
public health and safety, and pollution or protection of the
environment, including without limitation all those relating to the
presence, use, production, generation, handling, transportation,
treatment, storage, disposal, discharge, release, threatened
release, or cleanup of any Hazardous Materials.
“Facility” means the
facility located at 201 Ellis Street, Stryker, Ohio.
“Financial Statements”
has the meaning set forth in §3(f) below.
“Hazardous Materials”
shall mean any substance, material, waste, gas or particulate
matter which is regulated by any local governmental authority, the
State of Ohio, or the United States Government, including, but not
limited to, any material or substance which is (a) defined as
a “hazardous waste”, “hazardous material”,
“hazardous substance”, “extremely hazardous
waste”, or “restricted hazardous waste” under any
provision of Ohio law, (b) petroleum or any petroleum
byproduct or derivative, (c) asbestos,
(d) polychlorinated biphenyl (“PCB”),
(e) radioactive material, (f) designated as a
“hazardous substance” pursuant to Section 311 of
the Federal Water Pollution Control Act (the Clean Water Act), 33
U.S.C. § 1251 et seq. (33 U.S.C. § 1321),
(g) defined as a “hazardous waste” pursuant to
Section 1004 of the Resource Conservation and Recovery Act, 42
U.S.C. § 6901 et seq. (42 U.S.C. § 6903), or
(h) defined as a “hazardous substance” pursuant to
Section 101 of the Comprehensive Environmental Response,
Compensation, and Liability Act, 42 U.S.C. § 9601 et seq.
(42 U.S.C. § 9601) (“CERCLA”).
“Improvements” means all
buildings, structures, fixtures, building systems and equipment,
and components thereof, included in the Real Property.
“Indemnified Party” has
the meaning set forth in §7(d) below.
“Knowledge” means as to
Seller and Seller’s Stockholder, the actual knowledge of any
persons listed on Schedule A hereto, without any duty to conduct an
independent investigation; and as to Buyer 1 or Buyer 2,
the actual knowledge of such entity and any manager or executive
officer of such entity, without any duty to conduct an independent
investigation.
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“Legal Requirement”
means any federal, state, local, municipal, foreign, international,
multinational or other constitution, law, ordinance, principle of
common law, code, regulation, statute or treaty.
“Loss” means any
liability, expense (including attorney’s fees), loss, damage,
obligation, or responsibility.
“Material Adverse
Effect” means a material adverse effect on the results of
operations or financial condition of the Business taken as a whole
or the ability of Seller to consummate the transactions
contemplated hereby.
“Material Customer” has
the meaning set forth in §3(h) below.
“Material Supplier” has
the meaning set forth in §3(h) below.
“Monthly Financial
Statements” has the meaning set forth in §3(f)
below.
“Most Recent Financial
Statements” has the meaning set forth in §3(f)
below.
“Ordinary Course of
Business” means the ordinary course of business of Seller
consistent with past custom and practice.
“Party” has the meaning
set forth in the preface above.
“Permitted Encumbrances”
means with respect to each parcel of Real Property: (a) real estate
taxes, assessments and other governmental levies, fees or charges
imposed with respect to such Real Property which are not due and
payable as of the Closing Date; (b) zoning, building codes
and other land use laws regulating the use or occupancy of such
Real Property or the activities conducted thereon which are imposed
by any governmental authority having jurisdiction over such Real
Property which are not violated by the current use or occupancy of
such Real Property or the operation of the business of Seller as
currently conducted thereon; (c) easements, covenants, conditions,
restrictions and other similar matters of record affecting title to
such Real Property which do not or would not materially impair the
use or occupancy of such Real Property in the operation of the
business of Seller as currently conducted thereon; (d) acts done or
suffered by, through or under Buyer; and (e) liens or encumbrances
of a definite and ascertainable amount which can and will be
satisfied effective as of the Closing Date.
“Person” means an
individual, a partnership, a corporation, an association, a joint
stock company, a trust, a joint venture, an unincorporated
organization, or a governmental entity (or any department, agency,
or political subdivision thereof).
“Prepaid Tooling” means
all tooling developed and produced at the direction of or by Seller
on behalf of a customer of Seller with the intent to transfer title
of such tooling to a customer upon completion of the tooling and
acceptance by customer.
“Purchase Price” has the
meaning set forth in §2(d) below.
“Retained Liabilities”
means every obligation and liability of Seller that is not an
Assumed Liability, including: (a) any liability arising out
of products of Seller sold prior to the Effective Time and any
liability arising out of any defects in products manufactured by
Seller prior to the Effective Time; (b) any liability under any
contract assumed by Buyer pursuant to this Agreement that arises
after the Effective Time to the extent that it arises out of any
breach that occurred prior to the Effective Time; (c) any liability
for Taxes, including (i) any Taxes owed as a result of
Seller’s operation of its business or ownership of the
Acquired Assets prior to the Effective Time, (ii) any Taxes owed by
Seller due to Seller’s sale of the Acquired Assets pursuant
to this Agreement; (d) any liability of Seller under any contract
not assumed by Buyer under this Agreement, including any liability
arising out of or relating to Seller’s credit facilities or
any security interest related thereto; (e) any
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liabilities of Seller to the extent arising due
to Seller’s violation of any Environmental, Health, and
Safety Requirements in connection with the operation of
Seller’s business or Seller’s leasing, ownership or
operation of Real Property prior to the Effective Time; (f) any
liability under any employee plans of Seller or Seller’s
Stockholder or relating to payroll, vacation, sick leave,
workers’ compensation, unemployment benefits, pension
benefits, employee stock option or profit-sharing plans, health
care plans or benefits or any other employee plans or benefits of
any kind for Seller’s employees or former employees or both;
(g) any liability of Seller to the extent arising out of any
proceeding to which Seller is a party that is pending as of the
Effective Time; (h) any liability arising out of any proceeding
commenced after the Effective Time to the extent any
occurrence or event happening prior to the Effective Time is the
basis for such proceeding; (i) any liability arising out of
Seller’s noncompliance with any Legal Requirement of any
governmental authority prior to the Effective Time; (j) any
liability of Seller under this Agreement or any other document
executed in connection with the Closing; (k) any liability relating
to the WARN Act or similar acts caused by any action of the Seller
prior to the Effective Time or by Buyer’s decision at the
Closing not to rehire on the Closing Date previous employees of
Seller; and (l) any liability to real estate brokerages providing
services to Seller prior to the Effective Time.
“Real Property” means
all land, together with all buildings, structures, improvements and
fixtures located thereon, and all easements and other rights and
interests appurtenant thereto described on Exhibit E
.
“Real Property Laws” has
the meaning set forth in §3(j) below.
“remediate” or
“remediation” shall mean any Legal Requirement that
compels a Person to remediate the Real Property due to a claim
related to Environmental Health and Safety Requirements or the
release or Hazardous Materials in order to operate the Business as
currently conducted.
“Security Interest”
means any mortgage, pledge, lien, encumbrance, charge, or other
security interest, other than (a) mechanic’s,
materialmen’s, and similar liens, (b) liens for taxes not yet
due and payable (or for taxes that the taxpayer is contesting in
good faith through appropriate proceedings), and (c) liens securing
rental payments under capital lease arrangements.
“Seller” has the meaning
set forth in the preface above.
“Seller’s
Stockholder” means The Ohio Art Company, an Ohio corporation,
which owns 100% of the outstanding stock of Seller.
“Tax” means any federal,
state, local, or foreign income, gross receipts, license, payroll,
employment, excise, severance, stamp, occupation, premium, windfall
profits, environmental (including taxes under Code §59A),
customs duties, capital stock, franchise, profits, withholding,
social security (or similar), unemployment, disability, real
property, personal property, sales, use, transfer, registration,
value added, alternative or add-on minimum, estimated, or other tax
of any kind whatsoever, including any interest, penalty, or
addition thereto, whether disputed or not.
“Tax Return” means any
return, declaration, report, claim for refund, or information
return or statement relating to Taxes, including any schedule or
attachment thereto, and including any amendment thereof.
“Third Party Claim” has
the meaning set forth in §7(d) below.
“Title Commitments” has
the meaning set forth in §8(a) below.
“Title Company” has the
meaning set forth in §8(a) below.
“Title Policies” has the
meaning set forth in §8(a) below.
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2.
Basic Transaction
.
(a)
Purchase and Sale of
Assets . Subject to
the terms and conditions of this Agreement, Buyer agrees to
purchase from Seller, and Seller agrees to sell, transfer, convey,
and deliver to Buyer, all of Seller’s rights, title, and
interest in and to the Acquired Assets at the Closing for the
consideration specified below in this §2.
(b)
Assignment Contracts, Permits,
Rights, etc.
Notwithstanding anything contained in this Agreement to the
contrary, this Agreement shall not constitute an agreement to
assign the right, title or interest of Seller in, to or under any
contract, license, permit, lease, commitment, sales order, purchase
order or other agreement or any claim or right of any benefit
arising thereunder or resulting therefrom if any attempted
assignment thereof, without the consent of a third party thereto,
would constitute a breach thereof or in any way adversely affect
the rights of Buyer or Seller thereunder or if by its nature such
contract, license, permit, lease, commitment, sales order, purchase
order or other agreement or claim of right cannot be
assigned. Seller shall use its reasonable efforts to obtain,
and Buyer agrees to cooperate with Seller in its efforts to obtain,
the consent of such third party to the assignment or transfer
thereof to Buyer in all cases, in which such consent is required
for assignment or transfer. Notwithstanding the foregoing,
the obligations of Seller or Buyer under this section shall not
include any obligation to make any material payment or incur any
material economic burden.
(c)
Assumption of
Liabilities . On
and subject to the terms and conditions of this Agreement, Buyer
agrees to assume and become responsible for all of the Assumed
Liabilities at the Closing. Buyer will not assume or have any
responsibility, however, with respect to any of the Retained
Liabilities or any other obligation or liability of Seller not
expressly included within the definition of Assumed
Liabilities. The Retained Liabilities shall remain the sole
responsibility of and shall be retained, paid, performed and
discharged solely by Seller. This Section 2(c) shall survive
the Closing.
(d)
Purchase Price
. Buyer agrees to pay to
Seller at the Closing in immediately available funds One Million
Six Hundred and Seventy Five Thousand dollars ($1,675,000.00) (the
“Purchase Price”) plus the Inventory Amount and the
Prepaid Tooling Amount.
“Inventory Amount” means
an amount in dollars equal to 85% of the value of the
Seller’s inventory that could be commercially usable for an
outstanding customer program of Seller within one (1) year of the
Closing and located at the Facility or in the possession of third
parties as of the Closing Date calculated at Seller’s
standard cost; provided, however, that inventory purchased or
produced by, or on behalf of, Seller at the request of Buyer to
meet customer shipping schedules shall be purchased at 100% of the
value of such inventory as of the Closing Date calculated at
Seller’s standard cost. Seller shall conduct a physical
inventory prior to Closing and shall update inventory information
through the Closing Date by use of receipts, shipments, purchase
orders and other documentation.
“Prepaid Tooling Amount”
means an amount in dollars equal to 100% of the value of the
Company’s Prepaid Tooling for which Seller has received an
invoice or bill from vendors prior to the Effective
Time.
(e)
The Closing
. The closing of the
transactions contemplated by this Agreement (the
“Closing”) shall take place at the offices of Seller at
One Toy Street, Bryan, Ohio 43506, commencing at 9:00 a.m. local
time on the second business day following the satisfaction or
waiver of all conditions to the obligations of the Parties to
consummate the transactions contemplated hereby (other than
conditions with respect to actions the respective Parties will take
at the Closing itself) (the “Closing Date”); provided,
however, that the Closing Date shall be no later than March 31,
2005 unless the Parties mutually agree in writing to extend the
Closing Date. The effective time (“Effective
Time”) shall be at 5:00 p.m. Eastern Standard Time on the
Closing Date.
(f)
Allocation
. The Parties agree to
allocate the Purchase Price (and all other capitalizable costs)
among the Acquired Assets for all purposes (including financial
accounting and tax purposes) in accordance with the allocation
schedule attached hereto as Exhibit F . Such
allocation shall be used for all purposes including the preparation
and filing of Form 8594 with the IRS.
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(g)
Transfer Taxes
. Seller shall be responsible
for and pay all sales and transfer taxes in connection with the
transfer of the Acquired Assets provided for herein. The
parties agree to reasonably cooperate in providing the information
required by any returns or other documentation relating to such
transfer taxes.
(h)
Prorations
. Any leased personal property
and all ad valorem taxes, real property taxes, payments in lieu of
taxes, personal property taxes and other assessments, including,
without limitation, water, sewage and other utility charges on the
Acquired Assets will be prorated between Seller and Buyer as of the
Closing Date based on the number of days of the applicable period
that each party owns or occupies the Acquired Assets based on the
most recently ascertainable tax bill if a current tax bill is
unavailable as of the Closing Date. If Buyer receives a
credit for prorated taxes pursuant to this Section, Buyer shall be
responsible for the timely payment of such taxes regardless of the
responsibility set forth in any applicable law. To the extent
practicable, all such prorations and payments will be made on the
Closing Date, with the balance to be made as soon as practicable
following the Closing Date upon delivery by Buyer or Seller, as
applicable, of reasonable documentation of such payment to the
other party.
3.
Representations and Warranties of
Seller and Seller’s Stockholder . Seller and Seller’s Stockholder,
jointly and severally, represent and warrant to Buyer that the
statements contained in this §3 are correct and complete as of
the date of this Agreement, except as set forth in the disclosure
schedule accompanying this Agreement (the “Disclosure
Schedule”). The exceptions, modifications, descriptions
and disclosures in any Disclosure Schedule attached hereto are made
for all purposes of this Agreement and are exceptions to all
representations and warranties set forth in this Agreement or in
any agreement or instrument delivered pursuant to or in connection
with this Agreement.
(a)
Organization of Seller
. Seller and Seller’s
Stockholder are corporations duly organized, validly
existing, and in good standing under the laws of the State of
Ohio.
(b)
Authorization of
Transaction .
Seller and Seller’s Stockholder each have full power and
authority (including full corporate power and authority) to execute
and deliver this Agreement and to perform their respective
obligations hereunder. Without limiting the generality of the
foregoing, the board of directors of Seller and of Seller’s
Stockholder have duly authorized the execution, delivery, and
performance of this Agreement by Seller and Seller’s
Stockholder. This Agreement constitutes the valid and legally
binding obligation of Seller and Seller’s Stockholder,
enforceable in accordance with its terms and conditions, subject to
(a) the effect of applicable bankruptcy, fraudulent conveyance,
insolvency, reorganization, moratorium or other similar federal or
state laws affecting the rights of creditors and (b) the effect or
availability of rules of law governing specific performance,
injunctive relief or other equitable remedies (regardless of
whether any such remedy is considered in a proceeding at law or in
equity).
(c)
Noncontravention
. Neither the execution and
the delivery of this Agreement, nor the consummation of the
transactions contemplated hereby (including the assignments and
assumptions referred to in §2 above), will (i) violate any
constitution, statute, regulation, rule, injunction, judgment,
order, decree, ruling, charge, or other restriction of any
government, governmental agency, or court to which Seller is
subject or any provision of the charter or bylaws of Seller or
Seller’s Stockholder or (ii) except as set forth in
Schedule 3(c) of the Disclosure Schedule, conflict with,
result in a breach of, constitute a default under, result in the
acceleration of, create in any party the right to accelerate,
terminate, modify, or cancel, or require any notice under any
agreement, contract, lease, license, instrument, or other
arrangement to which Seller or Seller’s Stockholder is a
party or by which they are bound or to which any of Seller’s
assets is subject, except where the violation, conflict, breach,
default, acceleration, termination, modification, cancellation, or
failure to give notice, would not have a Material Adverse
Effect. Except as set forth in Schedule 3(c) of the
Disclosure Schedule, Seller and Seller’s Stockholder do not
need to give any notice to, make any filing with, or obtain any
authorization, consent, or approval of any government or
governmental agency in order for Seller and Seller’s
Stockholder to consummate the transactions contemplated by this
Agreement.
(d)
Brokers’ Fees
. Except for payments owed to
Disalle Real Estate Company by Seller, neither Seller nor
Seller’s Stockholder has any liability or obligation to pay
any fees or commissions to any broker,
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finder, or agent with respect to the
transactions contemplated by this Agreement for which Buyer could
become liable or obligated.
(e)
Title to Assets
. Seller has good title to the
personal property included in the Acquired Assets to be conveyed by
it under this Agreement. Seller has the right to transfer such
Acquired Assets to Buyer, and at the Closing, Buyer will receive
such Acquired Assets free and clear of any liens, claims or
encumbrances except for liens, claims or encumbrances which will be
discharged upon payment of the associated Assumed
Liability.
(f)
Financial Statements
. Attached hereto as Schedule
3(f) are the following unaudited financial statements of Seller
(collectively the “Financial Statements”): (i)
internally prepared balance sheets and statements of income as of
and for the fiscal years ended January 31, 2003 and January 31,
2004 for Seller; and (ii) internally prepared balance sheets and
statements of income (the “Most Recent Financial
Statements”) as of and for the eight (8) months ended
September 30, 2004 for Seller. On or before the last day of
each calendar month commencing after the date of this Agreement but
with respect to the month immediately prior to the Closing Date, no
later than fifteen days after the end of the month immediately
prior to the Closing Date, Seller shall deliver to Buyer internally
prepared balance sheets and statements of income (the
“Monthly Financial Statements”) as of and for the
immediately preceding calendar month. The Financial
Statements (including the notes thereto, if any) have been prepared
on a consistent basis throughout the periods covered thereby, are
consistent with the books and records of Seller and fairly present
in all material respects the financial position of Seller as of the
dates thereof and its results of operations for the period then
ended; provided, however, that the Most Recent Financial Statements
and the Monthly Financial Statements are subject to normal year-end
adjustments (which are not expected to be material individually or
in the aggregate) and lack footnotes and other presentation
items.
(g)
Legal Compliance
. Seller has complied with all
applicable Legal Requirements (excluding principles of common law),
except for those failures to comply that would not reasonably be
expected to have a Material Adverse Effect. To the Knowledge
of Seller and Seller’s Stockholder, no action, suit,
proceeding, hearing, investigation, charge, complaint, claim,
demand, or notice has been filed, commenced or threatened against
Seller alleging any failure so to comply.
(h)
Customers and Purchase
Orders . Schedule
3(h)(A) sets forth a list of all of the customers of Seller with
annual purchases exceeding $200,000 for the year ended January 31,
2004 (“Material Customer”) and suppliers of Seller
receiving annual payments from the Company exceeding $ 200,000 for
the year ended January 31, 2004 (the “Material
Suppliers”). Schedule 3(h)(B) sets forth all purchase
orders of Seller for the provision of goods and services involving
consideration in excess of $50,000. Except as set forth in
Schedule 3(h)(C), since February 1, 2004, no Material Customer of
Seller has provided written notice to Seller of its intention to
terminate its relationship with Seller.
(i)
Inventory . Schedule 3(i) sets forth a list of all
inventory of Seller as of the date of this Agreement.
(j)
Real Property
.
(i)
Schedule 3(j)
attached hereto sets forth the
address and description of each parcel of Real Property. With
respect to each parcel of Real Property:
(A)
Seller has not leased or otherwise
granted to any Person the right to use or occupy such Real Property
or any portion thereof except as set forth on Schedule 3(j);
and
(B)
To the Knowledge of Seller and
Seller’s Stockholder there are no outstanding options, rights
of first offer or rights of first refusal to purchase such Real
Property or any portion thereof or interest therein.
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(ii)
The Real Property identified on
Schedule 3(j) comprises all of the real property used in the
Business of Seller; and Seller is not a party to any agreement or
option to purchase or lease any real property or interest therein
not identified on Schedule 3(j) .
(iii)
To the Knowledge of Seller and
Seller’s Stockholder, Seller has not received written notice
of any condemnation, expropriation or other proceeding in eminent
domain, affecting any parcel of Real Property or any portion
thereof or interest therein except as set forth on Schedule
3(j). To the Knowledge of Seller and Seller’s
Stockholder, there is no injunction, decree, order, writ or
judgment outstanding, nor any claims, litigation, administrative
actions or similar proceedings, pending or threatened, relating to
the ownership, lease, use or occupancy of the Real Property or any
portion thereof, or the operation of the business of Seller as
currently conducted thereon except as set forth on Schedule
3(j).
(iv)
To the Knowledge of Seller and
Seller’s Stockholder, Seller has not received any written
notice of violation of any applicable building, zoning,
subdivision, health and safety and other land use laws, including
The Americans with Disabilities Act of 1990, as amended, and all
insurance requ
