ASSET PURCHASE AGREEMENT
This Asset Purchase Agreement (the "Agreement"), made at Lorain, Ohio,
as of this 1st day of July, 2004, between and among LNB MORTGAGE, LLC, an Ohio
limited liability company, which with its successors and assigns is herein
called "Purchaser", The Lorain National Bank, a national bank, which with its
successors and assigns is herein called "LNB," MORTGAGE ONE SERVICES, INC., an
Ohio corporation, which with its successors and assigns is herein called
"Seller", and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, who with his heirs, executors, administrators and
assigns is herein called "Shareholder", is to EVIDENCE THAT:
WHEREAS Seller is engaged in the business of providing mortgage
brokerage and financial services (herein called the "Business"); and
WHEREAS Shareholder is the sole and exclusive owner of all of the
issued and outstanding capital shares in Seller, and LNB owns all of the issued
and outstanding membership interests in Purchaser; and
WHEREAS, upon the terms and conditions contained in this Agreement,
Seller desires to sell to Purchaser certain of Seller's assets used in and/or
arising from the Business; and
WHEREAS, if Seller and Shareholder agree to certain non-competition
covenants, Purchaser desires to purchase from Seller certain of Seller's assets
used in and/or arising from the Business, upon the terms and conditions set
forth in this Agreement;
NOW, THEREFORE, in consideration of the foregoing statements and the
mutual covenants and promises made in this Agreement and for other valuable
consideration (the receipt and sufficiency of which are hereby acknowledged),
Seller, Purchaser, LNB and Shareholder (herein collectively called the "Parties"
and individually called a "Party") agree as follows:
1. CLOSING DATE, CLOSING AND ESCROW AGENT.
1.1 Closing Date. Except as otherwise expressly stated
herein, all transactions contemplated by this Agreement shall be closed and
consummated on August 31, 2004 (herein called the "Closing Date"). The Closing
Date may be changed by agreement of the Parties.
1.2 Closing. Unless otherwise agreed by the Parties,
closing (herein called "Closing") of all transactions contemplated by this
Agreement shall occur at the main office of The Lorain National Bank located at
▇▇▇ ▇▇▇▇▇▇▇▇ in Lorain, Ohio on the Closing Date, at 10:00 a.m.
2. PURCHASE AND SALE OF BUSINESS ASSETS.
2.1 Agreement of Sale and Purchase. Subject to the terms
and conditions of this Agreement, Seller hereby agrees to sell, assign, transfer
and convey (free and clear of all liens and encumbrances) to Purchaser, and
Purchaser hereby agrees to purchase from Seller, all
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of Seller's right, title and interest in and to the following items (all of
which are herein collectively called the "Business Assets"):
(a) All Seller's office equipment, machinery and
equipment, leasehold improvements and
vehicles described in Schedule 2.1(a),
attached hereto and incorporated herein by
reference (herein collectively called the
"Equipment"); and
(b) All Seller's open or pending Business
transactions generated in the operation of
the Business (herein collectively called the
"Pending Transactions") existing at Closing
on the Closing Date. A current listing of
Pending Transactions is set forth on
Schedule 2.1(b) (attached hereto and
incorporated herein by reference) which
shall be mutually updated by Seller and
Purchaser based upon a review of Seller's
Business records at the close of business on
the day immediately preceding the Closing
Date, together with all existing
applications, forms, contracts and Business
information related to the Pending
Transactions; and
(c) All Seller's accounts receivable and rights
to payment resulting from the operation of
the Business (herein called the "Accounts
Receivable") existing at Closing on the
Closing Date. A current listing of Accounts
Receivable is set forth on Schedule 2.1(c)
(attached hereto and incorporated herein by
reference) which shall be mutually updated
by Seller and Purchaser based upon a review
of Seller's Business records at the close of
business on the day immediately preceding
the Closing Date; and
(d) All Seller's leasehold interest in and to
the real estate (herein called the
"Premises") located at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇ ▇, ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, which
leasehold is evidenced by a lease, dated
February 7, 2002 and amended August 2002
(herein called the "Lease"), by and between
Seller and ▇▇▇▇▇▇▇ Development IV, Ltd.; and
(e) All Seller's goodwill and going concern
value, including (but not limited to) the
name "Mortgage One Services" or "Mortgage
One Banc"; all Seller's contractual and
other rights under the Assumed Contracts
(defined below) and related to the Assumed
Liabilities (defined below); Seller's
telephone and facsimile numbers used in the
Business; all Seller's customer lists,
customer records, and rights to customers;
all Seller's Business forms, Business books,
and Business records; all rights to Seller's
domain name "▇▇▇.▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇" and
website found at Seller's domain name.
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The Business Assets do not include any of the following: (i) Seller's cash and
cash equivalents, bank accounts and ▇▇▇▇▇ cash, wherever located; (ii) any
insurance policies and proceeds thereof with respect to coverage prior to the
Closing Date; (iii) Seller's corporate franchise, minute and stock record books,
corporate seals, tax returns or other records having to do with the corporate
organization of Seller; (iv) Seller's rights under this Agreement; and (v) all
rights of indemnification, claims, counterclaims or other rights or actions
relating to the Assumed Contracts which arise with respect to periods on or
before the Closing Date or losses (including indemnity payments) of Seller
thereunder or in relation thereto.
2.2 Non-Assumption of Certain Liabilities. For purposes
herein, the term "Liability" shall mean any claim, liability or obligation
whatsoever, whether known or unknown, accrued, absolute, contingent or
otherwise. Except for the Assumed Liabilities (as defined in Section 2.3 below),
the Parties expressly agree that Purchaser is not and shall not be responsible
or liable for any Liabilities of Seller or Shareholder, including, but not
limited to, the following:
(a) All Liabilities of Shareholder; and
(b) Accrued salaries and wages of Seller's
employees for periods through the Closing
Date; and
(c) All Liabilities of Seller for Federal,
State, local and foreign taxes relating to
the operation of the Business of Seller
through the close of business on the Closing
Date; and
(d) All Liabilities of Seller to customers with
respect to any deficiencies and inadequacies
in services performed for customers prior to
the Closing; and
(e) All Liabilities of Seller of any nature
whatsoever which are based on events
occurring on or before the Closing Date or
which are based on services performed by
Seller on or before the Closing Date,
notwithstanding that the date on which the
Liability arises is after the Closing,
including (without limitation) Liabilities
pertaining to Business claims and any
employer-employee laws or regulations or
laws or regulations relating to health and
safety of employees (including, but not
limited to, the Equal Employment Opportunity
Act and ERISA);
(f) All Liabilities of Seller with respect to
any pending, threatened or unasserted
litigation, claims, demands, investigations
or proceedings; and
(g) All Liabilities of Seller to employ any
employees of Seller, to maintain any health
insurance or health payment benefits for
Seller's employees, to provide any COBRA
rights or notices (or any similar State
rights or notices) for any employees of
Seller, or
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to maintain any other fringe benefits of
Seller, except as contemplated in Section
2.8 hereof.
2.3 Assumption of Certain Liabilities. As of the Closing
Date, Purchaser will assume and become solely responsible for the following
Liabilities of Seller, which are referred to herein as the "Assumed
Liabilities":
(a) Ordinary Course of Business Liabilities.
Seller's obligations for accounts payable,
utilities, non-material equipment leases and
other accrued current Liabilities incurred
in the ordinary course of business, as
described on section (a) of Schedule 2.3,
attached hereto and incorporated herein by
reference.
(b) Liabilities Under Assumed Contracts.
Seller's obligations under the contracts and
agreements listed in section (b) of Schedule
2.3, attached hereto and incorporated herein
by reference ("Assumed Contracts"), but in
each case only to the extent such
obligations arise with respect to periods
beginning after the Closing Date.
(c) Others. Those other debts, obligations and
Liabilities listed in section (c) of
Schedule 2.3, attached hereto and
incorporated herein by reference, including
Seller's line of credit owing to LNB.
2.4 Asset Purchase Price. The purchase price for the
Business Assets and for Seller's promises, duties and/or covenants contained in
this Agreement (herein called the "Asset Purchase Price") is the sum of Three
Hundred Fifty Thousand Dollars ($350,000.00) allocated as designated on Schedule
2.4 (attached hereto and incorporated herein by reference).
2.5 Payment of Asset Purchase Price. Purchaser shall pay
the Asset Purchase Price by wire transfer or cashier's check to Seller at
Closing.
2.6 Instruments of Transfer. On or before Closing, the
Parties shall deliver to each other:
(a) A signed and executed ▇▇▇▇ of sale,
assignment and assumption (herein called the
"▇▇▇▇ of Sale") conveying the Business
Assets to Purchaser free and clear of all
liens and encumbrances, evidencing
Purchaser's assumption of the Assumed
Liabilities and containing such reasonable
terms and conditions as are satisfactory to
Seller Purchaser and which shall be in
substantially the same form as the ▇▇▇▇ of
Sale, attached hereto and incorporated
herein by reference as Schedule 2.6(a); and
(b) An assignment of lease agreement (herein
called the "Assignment of Lease") which
shall be executed by the lessor under the
Lease consenting to and authorizing the
assignment of Seller's interest, rights and
title in and to the Lease to Purchaser, the
assumption by
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Purchaser of all obligations thereunder and
the release of Seller and Shareholder from
any liability thereunder for periods after
the Closing Date; and
(c) Such other instruments of sale and
assignment as may be necessary to effect the
sale and purchase of the Business Assets and
assumption of the Assumed Liabilities as
contemplated by this Agreement, including
(but not limited to) the consents of any
third party necessary to effect the transfer
of the Business Assets, any contract, right
or license which (by its terms) requires
such consents.
2.7 Corporate Name. From and after the Closing Date,
Seller and Shareholder promise, covenant and agree not to use (directly or
indirectly) the name "Mortgage One Services" or "Mortgage One Banc", or any
similar name for any purpose. On or before Closing on the Closing Date, Seller
shall deposit with Purchaser the following: (a) an Amendment to Seller's
Articles of Incorporation changing Seller's name from "Mortgage One Services,
Inc." to a different name satisfactory to Purchaser; (b) certified copies of
Minutes of Seller's shareholder's and director's meetings authorizing said
amendment; and (c) Seller's consent to Purchaser's use of the names "Mortgage
One Services" and "Mortgage One Banc", as evidenced by a resolution of all
directors of Seller certified by Seller's secretary or assistant secretary in
accordance with Section 1701.05 of the Ohio Revised Code. Purchaser's counsel
shall file or cause to be filed the aforesaid amendment and resolution with the
Ohio Secretary of State on or a reasonable time after the Closing Date.
2.8 Employees of Seller. Purchaser agrees that it will
hire such employees of Seller in such capacities as recommended by Shareholder
(the "Hired Employees"). Purchaser shall offer the Hired Employees compensation
terms that are substantially the same as provided by Seller as of the Closing
Date and the Hired Employees shall be eligible for participation in all employee
benefit plans offered by Purchaser or LNB to their other employees. The Hired
Employees shall be given credit for their service time with Seller for purposes
of all applicable retirement and benefit plans of Purchaser and LNB.
3. RESTRICTIVE COVENANTS.
3.1 Condition Precedent to Purchaser's Obligation. Seller
and Shareholder hereby acknowledge and agree that Purchaser would not purchase
the Business Assets or sign this Agreement unless both Shareholder and Seller
agree to restrictive covenants. Purchaser's covenants are contained below and
Seller's covenants shall be contained in an employment agreement of even date
herewith among Shareholder, Purchaser and LNB (such employment agreement is
herein called the "Employment Agreement" and shall be in the form attached
hereto as Schedule 3.1).
3.2 Acknowledgments of Seller. Seller hereby covenants,
acknowledges and agrees that:
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(a) Seller and Shareholder have developed and
acquired certain customer lists, customer
records, goodwill and going concern value,
business techniques, and other confidential
and proprietary information which Seller is
selling and conveying to Purchaser under
this Agreement and which have unique,
unusual and original qualities and features;
and
(b) The restrictive covenants under this Section
3 do not and shall not constitute an undue
or unreasonable hardship to Seller; and
(c) If Seller breaches or violates any or all of
the restrictive covenants in this Section 3,
Purchaser shall suffer immediate and
irreparable damage and harm, Purchaser's
remedies at law for such breach or violation
will be inadequate (and Seller hereby waives
the claim or defense that an adequate remedy
at law is available), Purchaser shall be
entitled to injunctive relief against Seller
in addition to an action and judgment for
damages, and Seller hereby waives any
requirement that Purchaser post a bond or
other security for such injunctive relief.
3.3 Restrictive Covenants of Seller. For a period of
three (3) years from and after the Closing Date, Seller shall not directly or
indirectly:
(a) Use for any purpose or disclose to any
person, partnership, corporation or other
entity (other than Purchaser) any of
Seller's trade secrets, Business or sales
techniques or processes, pricing techniques
or methods, product or service
specifications, customer lists or customer
records, price lists, financial information,
Business forms, Business records,
confidential documents, or any other
confidential or proprietary information;
provided, however, that this restriction
shall not apply to any information that: is
in, or later becomes part of, the public
domain or otherwise known within the
industry through no fault of Seller; is
disclosed to Seller by a third party under
no duty of confidentiality to LNB or
Purchaser; or is required to be disclosed by
a valid court order or subpoena after notice
is given to Purchaser and Purchaser has had
an opportunity to obtain a protective order
or other relief with respect to such
disclosure; OR
(b) Sell products or services which compete with
those of Purchaser to, or solicit the
business of, any person, partnership,
corporation or other entity or business who
or which, during said three (3)-year period,
is or was a customer of Purchaser; OR
(c) Own (partially or completely), operate,
control, work for or be engaged in any
capacity, advise or consult (whether or not
for compensation), be employed or engaged
by, or represent any sole
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proprietorship, partnership, corporation or
other entity or business who or which,
during said three (3)-year period is
competitive with Purchaser's services,
products or any other business activities;
OR
(d) During said three (3)-year period, employ,
engage, contract in any manner for the
service of, or solicit the services of any
person who is or was an employee of
Purchaser or was an employee of Seller prior
to the Closing.
3.4 Savings Provision. If the provisions of this Section
3 are ever judicially held to exceed the time limitations permitted by law, such
provisions shall be deemed reformed to the maximum time limitations permitted by
law.
3.5 Independent Agreement. The restrictive covenants
contained in this Section 3 shall be construed as an agreement independent of
any other provision of this Agreement. The existence of any claim or cause of
action of Seller and/or Shareholder against Purchaser, whether predicated on
this Agreement or otherwise, shall not constitute a defense to the enforcement
by Purchaser of the restrictive covenants contained in this Section 3.
4A. REPRESENTATIONS AND WARRANTIES BY SELLER AND SHAREHOLDER. Any
representations or warranties made "to Seller's knowledge" are limited to
matters within the actual knowledge of Shareholder without further
investigation. Seller and Shareholder jointly and severally represent and
warrant to Purchaser as follows:
4A.1 Validity. The execution, delivery and performance of
this Agreement by Seller and Shareholder and the performance of this Agreement
by Seller and Shareholder and the execution, delivery and performance of each of
the documents or agreements arising from or related to this Agreement has been
duly and validly authorized by all necessary action, including without
limitation any consent required by Seller's Articles of Incorporation and
Regulations. This Agreement constitutes the legally valid and binding obligation
of Seller and Shareholder, enforceable against Seller and Shareholder in
accordance with its terms, except as may be limited by bankruptcy, insolvency,
reorganization, moratorium and other similar laws and equitable principles
relating to or limiting creditors' rights generally and by general principles of
equity. Each of the documents or agreements arising from or related to this
Agreement will when executed constitute the legally valid and binding obligation
of Seller and/or Shareholder, enforceable against Seller and/or Shareholder in
accordance with its terms, except as may be limited by bankruptcy, insolvency,
reorganization, moratorium and other similar laws and equitable principles
relating to or limiting creditors' rights generally and by general principles of
equity.
4A.2 Organization of Seller. Seller is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Ohio, and has all requisite power and authority to own, lease and operate its
Business Assets and to conduct Business as currently being conducted. Seller is
not required to qualify as a foreign corporation in any state or jurisdiction.
Seller conducts Business under no other names except for Mortgage One Services,
Inc., Mortgage One Banc and Mortgage One Banc Financial Services. Seller has no
subsidiaries, and has no direct or indirect ownership or equity interest,
whether voting or non-voting, in any
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other entity except for its 49% membership interest in TransNational Title
Agency, Ltd. Seller has delivered to Purchaser true and complete copies of the
Articles of Incorporation and Regulations and any other organizational
documents, in each case including all amendments thereto, of Purchaser.
4A.3 Financial Statements. Seller has delivered to
Purchaser copies of Seller's financial statements for the fiscal years ending
2001, 2002 and 2003 (herein collectively called the "Financial Statements"). To
Seller's knowledge, the Financial Statements have been prepared in accordance
with general accounting principles consistently applied throughout the
accounting periods designated therein, and accurately present the financial
position and results of the operations of Seller and the Business for the
accounting periods in the Financial Statements.
4A.4 Taxes.
(a) All tax returns required to be filed on or
before the Closing Date have been or will be timely filed. All such tax returns:
(i) were or will be prepared in the manner required by applicable law, (ii) are
or will be true, correct and complete in all material respects, and (iii)
accurately reflect or will so reflect the liability for applicable taxes in all
material respects. All taxes shown to be payable on such tax returns, and all
assessments of tax made with respect to such tax returns, have been paid or will
be fully paid when due. No adjustment relating to such tax returns has been
proposed formally or, to Seller's knowledge, informally by any taxing authority
and no basis exists for any such adjustment.
(b) Seller has paid, caused to be paid or has
provided a sufficient reserve, including deferred tax liabilities for the
payment of, all taxes of Seller, whether to taxing authorities or to other
persons or entities, with respect to all taxable periods prior to Closing.
(c) Seller has withheld or will withhold from
its employees, customers, and other payees (and timely paid to the appropriate
government entity) all amounts required by the tax withholding provisions of
applicable Federal, State, local, and foreign laws (including, without
limitation, income, social security, and employment tax withholding for all
types of compensation, and withholding on payments to non-United States
persons).
(d) To Seller's knowledge, there are no claims
or investigations by the Internal Revenue Service or any other taxing authority
pending or threatened against Seller or Shareholder for any past due taxes;
there has been no waiver granted or requested of any applicable statute of
limitations or extension of the time for the assessment of any tax for which
Seller or Shareholder could be liable under any provision of Federal, State,
local, or foreign law; there are no outstanding requests for information made by
a taxing authority to Seller or Shareholder; and there are no outstanding
requests by Seller or Shareholder to a taxing authority for a ruling,
determination, permission, consent, or similar item. No closing agreement, as
defined in Section 7121 of the Internal Revenue Code (herein called the "Code"),
or any similar provision of any State, local, or foreign law has been entered
into by or with respect to Seller or Shareholder.
(e) Except for liens for personal property taxes
that are not yet due and payable, there are no liens or encumbrances for any tax
upon the Business Assets.
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(f) No power of attorney that is currently in
force has been granted to any person with respect to any matter relating to
taxes that could affect Seller or the Business Assets.
(g) Seller and Shareholder shall cooperate fully
with Purchaser, as and to the extent reasonably requested by Purchaser, in
connection with any audit, litigation or other proceeding with respect to taxes
relating to Seller or the Business or the Business Assets. Such cooperation
shall include the retention and (upon Purchaser's request) the provision of
records and information which are reasonably relevant to any such tax return,
audit, litigation or other proceeding.
(h) Except as otherwise required by applicable
law, any taxes due and payable with respect to the Business Assets shall be
pro-rated as of the Closing Date, with Seller treated as owning the applicable
assets through the Closing Date for such purposes.
4A.5 Title to Business Assets. Seller has good and
marketable title to the Business Assets, free and clear of all liens and
encumbrances except (i) as indicated on Schedule 2.3 with respect to Assumed
Contracts that are leases, (ii) Seller's line of credit with LNB and the related
lien and (iii) the lessor's rights under non-material office equipment leases.
4A.6 Compliance with Laws. To Seller's knowledge,
Shareholder is and has been in compliance with all material laws, rules and
regulations applicable to the operation of the Business.
4A.7 Yield Spread Premium Refunds. To Seller's knowledge,
Seller has not ever been required to refund any yield spread premium or
repurchase any loan under its agreements with its funding sources.
4A.8 Litigation. To Seller's knowledge, there are
currently no, and since the formation of Seller there have not been any, pending
lawsuits naming Seller or Shareholder as a party with respect to the Business,
except for the lawsuit brought by Lakeside Mortgage against Seller involving
non-competition agreements between Lakeside Mortgage and one current employee
and one former employee of Seller, which lawsuit has been settled and dismissed.
4A.9 Reliance on Due Diligence. Seller and Shareholder
each acknowledge receiving the opportunity to perform whatever investigations of
Purchaser and LNB it has deemed appropriate, necessary or advisable, and that as
of the Closing Date each shall have performed all such investigations. Seller
and Shareholder each further acknowledge that it is relying solely on its own
due diligence investigation and the representations and warranties of Purchaser
and LNB set forth in Section 5, and not any other representations or warranties
made or alleged to be made by Purchaser or LNB or any of their respective
officers, directors, owners, employees, representatives, attorneys or agents.
4B. REPRESENTATIONS AND WARRANTIES BY SELLER. Seller represents
and warrants to Purchaser as follows:
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4B.1 Compliance with Laws. To Seller's knowledge, Seller
is in compliance with: (a) the terms of its Articles of Incorporation and
Regulations or other organizational documents; (b) all laws, statutes,
ordinances, rules, regulations or other legal requirements, whether Federal,
State, local or foreign; (c) all orders, writs, judgments, injunctions, awards
and decrees of any court, other governmental entity or arbitrator; and (d) its
permits.
4B.2 Absence of Certain Changes. Since April 16, 2004, to
Seller's knowledge there has not occurred any adverse change in the activities
or operations of Seller or the Business that may materially and adversely affect
the Business Assets, the Business, or the ability of Seller to perform its
covenants, representations, warranties, duties and obligations contained in this
Agreement.
4B.3 Litigation. There are no pending or, to Seller's
knowledge threatened, actions, lawsuits, investigations, judgments, proceedings
or other claims by or against Seller that would materially and adversely affect
the Business, the Business Assets or the ability of Seller to perform its
covenants, duties and obligations hereunder. There are no outstanding orders,
writs, judgments, injunctions, awards or decrees in any court, other
governmental entity or arbitrator against or affecting Seller or the Business
Assets.
4B.4 Consents of Third Party. No consents, approvals,
authorizations, licenses or orders of, registrations or filings with, or notices
to parties with whom Seller has contractual or other relationships or has had
such contractual relationships are required or will be required in order to
permit the consummation of the transactions contemplated by this Agreement,
except for consents to assignments of Assumed Contracts, non-material office
equipment leases and the Assignment of Lease.
4B.5 Yield Spread Premium Refunds. Seller has not ever
been required to refund any yield spread premium or repurchase any loan under
its agreements with its funding sources.
4B.6 No Brokers. No broker, finder or investment banker
has been retained or engaged on behalf of Seller, or is entitled to any
brokerage, finder's or other fee, compensation or commission from any such
person in connection with the transactions contemplated by this Agreement.
4B.7 Full Disclosure. All documents and papers delivered
by or on behalf of Seller or Shareholder in connection with this Agreement and
the transactions contemplated hereby were prepared and delivered in good faith
by such person and to Seller's knowledge are complete and authentic in all
respects. Seller and Shareholder have not knowingly withheld any document, paper
or other information requested in writing by Purchaser or any of its
representatives in connection herewith. The historical data provided to
Purchaser and LNB with respect to Seller's mortgage transaction volume and
pricing, expense structures and title company revenue was true and correct in
all material respects.
4B.8 No Legal Obstacle to Agreement. The execution of this
Agreement and the consummation of the transactions contemplated hereunder do not
and will not result in a breach, acceleration or termination of, or constitute a
default under, any Federal, State and/or
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local law, regulation, rule or order or any contract, lease, mortgage, loan
agreement or other agreement to which Shareholder and/or Seller is a party.
4B.9 Intellectual Property; Software. The trade names,
trademarks, domain names and rights described in Schedule 4B.9 (attached hereto
and incorporated herein by reference) and/or in the Assumed Contracts represent
all trade names, trademarks, trade dress, domain names, service marks and
similar rights (including registrations and applications to register or renew
the registration of any of the foregoing) and computer software that are owned
or used by Seller in, and are material to, the conduct of Business
("Intellectual Property"). Except as set forth in the Assumed Contracts, Seller
owns, or is validly licensed or otherwise has the right to use, on a
royalty-free basis, free and clear of any lien or encumbrance, all Intellectual
Property used in the conduct of the Business. Neither Seller nor Shareholder has
knowledge that (a) Seller is infringing the rights of any other person in
respect of any Intellectual Property or (b) any person is infringing or
otherwise in conflict with Seller's Intellectual Property.
4B.10 Compensation. Schedule 4B.10 (attached hereto and
incorporated herein by reference) sets forth: (a) the name and total
compensation (payable by Seller) of each director, officer and/or employee of
Seller for 2004 (year to date), and 2003, (b) all bonuses and other incentive
compensation received by such persons, and any accrual for such bonuses and
incentive compensation for the same period, (c) all contracts or commitments by
Seller with respect to the calculation of compensation including bonuses and
commissions and severance or termination pay arrangements, and (d) all employee
benefit plans maintained with respect to employees of Seller. To Seller's
knowledge, no party is in default under any agreement referenced on Schedule
4B.10, and all employee benefit plans have been operated and administered in
compliance with all applicable laws, rules and regulations and the terms of such
plan.
EXCEPT AS EXPRESSLY SET FORTH IN SECTIONS 4A AND 4B ABOVE, (I) SELLER AND
SHAREHOLDER MAKE NO REPRESENTATIONS OR WARRANTIES AS TO THE BUSINESS OR THE
CONDITION, SUITABILITY OR OTHER PHYSICAL ASPECT OF THE BUSINESS OR THE BUSINESS
ASSETS OR THE PROFITABILITY OR CLOSING OF ANY PENDING TRANSACTION, AND (II)
PURCHASER IS PURCHASING THE BUSINESS ASSETS ON AN "AS IS, WHERE IS" BASIS.
SELLER AND SHAREHOLDER HEREBY DISCLAIM ANY AND ALL SUCH OTHER REPRESENTATIONS
AND WARRANTIES, WHETHER WRITTEN OR ORAL, EXPRESS OR IMPLIED, INCLUDING, WITHOUT
LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE.
5. REPRESENTATIONS AND WARRANTIES OF PURCHASER AND LNB. Purchaser
and LNB jointly and severally represent and warrant to Seller and Shareholder as
follows:
5.1 Organization. Purchaser is a limited liability
company duly organized, validly existing and in good standing under the laws of
the State of Ohio, and, as of Closing, has all requisite power and authority to
own, lease and operate its business assets and to conduct its business as
contemplated by the Parties. Purchaser shall be formed, capitalized and
organized as set forth on Schedule 5.1 attached hereto and incorporated herein
by reference.
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5.2 Authorization of Agreement. The execution, delivery
and performance of this Agreement by Purchaser and LNB and the performance of
this Agreement by Purchaser and LNB and the execution, delivery and performance
of each of the documents or agreements arising from or related to this Agreement
has been duly and validly authorized by all necessary action, including without
limitation any consent required by Purchaser's Articles of Incorporation,
Articles of Organization, Operating Agreement and Regulations, as applicable.
This Agreement constitutes the legally valid and binding obligation of Purchaser
and LNB, enforceable against Purchaser and LNB in accordance with its terms,
except as may be limited by bankruptcy, insolvency, reorganization, moratorium
and other similar laws and equitable principles relating to or limiting
creditors' rights generally and by general principles of equity. Each of the
documents or agreements arising from or related to this Agreement will when
executed constitute the legally valid and binding obligation of Purchaser and
LNB, as the case may be, enforceable against Purchaser and LNB in accordance
with its terms, except as may be limited by bankruptcy, insolvency,
reorganization, moratorium and other similar laws and equitable principles
relating to or limiting creditors' rights generally and by general principles of
equity.
5.3 No Legal Obstacle to Agreement. The execution of this
Agreement and the consummation of the transactions contemplated hereunder do not
and will not conflict with, or result in a breach of, or constitute a default
under, any Federal, State and/or local law, regulation or order or any contract,
lease, mortgage or other agreement to which Purchaser or LNB is a party.
5.4 Compliance with Laws. To Purchaser's and LNB's
knowledge, Purchaser is in compliance with: (a) the terms of its Articles of
Incorporation , Articles of Organization, Operating Agreement and Regulations or
other organizational documents, as applicable; (b) all laws, statutes,
ordinances, rules, regulations or other legal requirements, whether Federal,
State, local or foreign; (c) all orders, writs, judgments, injunctions, awards
and decrees of any court, other governmental entity or arbitrator; and (d) its
permits.
5.5 Litigation. There are no pending or, to Purchaser's
or LNB's knowledge threatened, actions, lawsuits, investigations, judgments,
proceedings or other claims by or against Purchaser or LNB that would materially
and adversely affect the business of Purchaser, the ability of Purchaser or LNB
to perform its covenants, duties and obligations hereunder, or the ability of
Purchaser or LNB to carry out the transactions contemplated hereby. There are no
outstanding orders, writs, judgments, injunctions, awards or decrees in any
court, other governmental entity or arbitrator against or affecting Purchaser or
its business.
5.6 Consents of Third Party. No consents, approvals,
authorizations, licenses or orders of, registrations or filings with, or notices
to parties with whom Purchaser or LNB has contractual or other relationships or
has had such contractual relationships are required or will be required in order
to permit the consummation of the transactions contemplated by this Agreement.
5.7 No Brokers. No broker, finder or investment banker
has been retained or engaged on behalf of Purchaser or LNB, or is entitled to
any brokerage, finder's or other fee,
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compensation or commission from any such person in connection with the
transactions contemplated by this Agreement.
5.8 Full Disclosure. All documents and papers delivered
by or on behalf of Purchaser or LNB in connection with this Agreement and the
transactions contemplated hereby were prepared and delivered in good faith by
such person and to Purchaser's and LNB's knowledge are complete and authentic in
all respects. Neither Purchaser nor LNB has knowingly withheld any document,
paper or other information requested in writing by Seller or any of its
representatives in connection herewith. The historical data provided to Seller
and Shareholder with respect to LNB's and/or its subsidiaries' and affiliates'
mortgage transaction volume and pricing, expense structures and title company
revenue was true and correct in all material respects.
5.9 Reliance on Due Diligence. Purchaser acknowledges
that it has had the opportunity to perform whatever investigations of Seller,
the Business and the Business Assets it has deemed appropriate, necessary or
advisable, and that as of the Closing Date it shall have performed all such
investigations. Purchaser further acknowledges that it is relying solely on its
own due diligence investigation and the representations and warranties of Seller
and Shareholder set forth in Sections 4A and 4B, and not any other
representations or warranties made or alleged to be made by Shareholder or
Seller or any of its officers, directors, owners, employees, representatives,
attorneys or agents.
6. GENERAL INDEMNIFICATION. (a) Seller hereby agrees to defend,
indemnify and hold harmless Purchaser (and Purchaser's directors, officers,
shareholders and employees) from and against any and all known or unknown
claims, demands, liabilities (including but not limited to any transferee
liabilities imposed by law), obligations, losses, fines, penalties, damages,
assessments, judgments, costs or expenses (including, but not limited to,
reasonable attorneys' fees, court costs and other costs and expenses incurred in
investigating, preparing or defending against any litigation, claim, action,
suit, proceeding or demand of any kind or character or in enforcing rights to
indemnification) (collectively, "Losses"), directly caused by Seller's and/or
Shareholder's breach of or failure to perform any representation, warranty,
covenant, duty or obligation made by Seller and/or Shareholder under this
Agreement.
(b) Shareholder hereby agrees to defend, indemnify and
hold harmless Purchaser (and Purchaser's directors, officers, shareholders and
employees) from and against any and all known or unknown Losses, directly caused
by Shareholder's breach of any representation or warranty made by Seller and/or
Shareholder under Section 4A of this Agreement and/or by Shareholder's breach or
failure to perform any covenant or agreement made by Shareholder in this
Agreement.
(c) Purchaser hereby agrees to defend, indemnify and hold
harmless Seller (and Seller's directors, officers and employees) and Shareholder
(and his heirs, representatives, successors and assigns) from and against any
and all known or unknown Losses, directly caused by Purchaser's and/or LNB's
breach of or failure to perform any representation, warranty, covenant, duty or
obligation made by Purchaser and/or LNB under this Agreement or any of the
agreements or instruments delivered pursuant hereto, including without
limitation, the assumption and agreement to be responsible for the Assumed
Liabilities. Any third party and
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internal expenses incurred by Purchaser with respect to Losses for which
Purchaser provides indemnification hereunder shall not be deducted when
calculating the net income of Purchaser for purposes of bonus calculations under
the Employment Agreement.
(d) LNB hereby agrees to defend, indemnify and hold
harmless Seller (and Seller's directors, officers and employees) and Shareholder
(and his heirs, representatives, successors and assigns) from and against any
and all known or unknown Losses, directly caused by LNB's breach of or failure
to perform any representation, warranty, covenant, duty or obligation made by
LNB under this Agreement.
7. INDEMNIFICATION LIMITATIONS.
7.1 Termination of Indemnification Rights . No claims may
be made or suit instituted under any provision of Article 6 after the date which
is one year from the Closing Date (the "Indemnification Termination Date"),
except for Reserved Claims which will survive indefinitely. The term "Reserved
Claims" means all claims (a) as to which the indemnitee has given any indemnitor
notice specifying the factual, legal and contractual basis for the same in
reasonable detail prior to the Indemnification Termination Date, or (b) based
upon the Assumed Liabilities.
7.2 Dollar Limitations.
(a) No Party shall be liable to another Party for
indemnification hereunder until the aggregate Losses payable by such
indemnifying party exceed Ten Thousand Dollars ($10,000.00), in which case all
such Losses shall be subject to indemnification hereunder.
(b) The total aggregate amount payable pursuant to
Article 6 by Seller and Shareholder will not exceed the Asset Purchase Price.
The total aggregate amount payable pursuant to Article 6 by Purchaser and LNB
will not exceed the Asset Purchase Price.
7.3 Exclusive Remedy. Except in the case of injunctive or
other equitable relief authorized by a court of competent jurisdiction, the
Parties' sole liability to each other under this Agreement or otherwise in
connection with this transaction shall be the indemnification rights, duties and
liabilities set forth in Article 6, as limited by this Article 7. Each Party
hereby forever waives, releases, relinquishes and discharges each other Party
and its respective officers, directors, owners, employees, agents,
representatives, attorneys, transferees and assigns from any Losses, claims,
demands, actions or causes of action, whether known or unknown, foreseen or
unforeseen, except to the extent indemnification is expressly granted therefor
under Article 6.
8. CONDUCT PRIOR TO CLOSING. From the date hereof through the
Closing Date (unless a different period of time is otherwise indicated):
8.1 Information. Seller and Shareholder shall give to
Purchaser and/or Purchaser's authorized representatives full access at all
reasonable times to all of the properties, books, contracts, documents and
records of Seller regarding the Business and shall furnish to Purchaser and/or
Purchaser's authorized representatives such information with respect to the
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Business as Purchaser may periodically and reasonably request. Purchaser and LNB
shall give to Shareholder and/or Shareholder's authorized representatives full
access at all reasonable times to all of the properties, books, contracts,
documents and records of Purchaser and LNB relevant to the business of the
Purchaser as contemplated by the Parties, and shall furnish to Shareholder
and/or Shareholder's authorized representatives such information as Purchaser
may periodically and reasonably request.
8.2 Notification. Seller and Shareholder shall promptly
give Purchaser and Purchaser shall promptly give Seller and Shareholder (as the
case may be) written notice of the existence or occurrence of any condition of
which such Party may become aware which may make any representation herein then
untrue or which may prevent the consummation of the transactions contemplated
hereunder.
8.3 Approvals. Each Party shall use its best efforts to
obtain from third parties all necessary consents and approvals of this Agreement
and of the transactions contemplated hereunder.
8.4 Conduct of Business. Until the Closing Date or the
earlier termination of this Agreement, Seller and Shareholder shall:
(a) Conduct the Business' operations only in the
ordinary course of business as previously conducted and in accordance with all
applicable laws, rules and regulations; and
(b) Maintain the Business Assets in good repair
and condition (reasonable wear and tear excepted); and
(c) Use best efforts to preserve the Business'
organization, keep available the services of its present employees and preserve
the goodwill of the Business; and
(d) Safeguard and maintain the secrecy of
confidential and proprietary information pertaining to the Business in
accordance with its historical practices; and
(e) Not sell or agree to sell any of the
Business Assets, except in the ordinary course of business; and
(f) Not create or incur or agree to create or
incur any lien, claim or encumbrance with respect to the Business Assets; and
(g) Not enter into or perform any contracts or
agreements, except in the ordinary course of business; and
(h) Insure the Business Assets consistent with
its past practice; and
(i) Not enter into any written or oral agreement
or letter of intent or agreement in principle, other than this Agreement, for
the purchase and sale of the Business and/or the Business Assets; and
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(j) Not increase the compensation or employment
related benefits to any officer, director or key employee of Seller without the
prior written consent of Purchaser; and
(k) Not incur, assume, guarantee or otherwise
become liable with respect to indebtedness for any reason whatsoever, except in
the ordinary course of business.
9. CONDITIONS TO PURCHASER'S OBLIGATIONS. Unless waived in
writing by Purchaser (in its sole discretion), Purchaser's obligation to pay the
Asset Purchase Price and to perform its other duties and obligations contained
in this Agreement are expressly subject to the following conditions:
9.1 Representations, Warranties and Covenants. Each
representation and warranty made by Seller and/or Shareholder under this
Agreement shall be deemed made again as of Closing on the Closing Date and shall
be true and accurate in all material respects as so made. Seller and Shareholder
shall have performed each obligation and complied with each covenant required by
this Agreement to be performed or complied with by Seller and/or Shareholder in
all material respects on or prior to Closing.
9.2 Authorization of Agreement. At Closing, Seller shall
deliver to Purchaser certified copies of all shareholder's resolutions and
director's resolutions of Seller authorizing the execution and performance of
this Agreement, and the sale and delivery of the Business Assets to Purchaser
and specifically agreeing and consenting to the restrictive covenants designated
in Section 3 of this Agreement.
9.3 No Adverse Proceedings. As of Closing, no material
suit, action or other proceeding shall be pending or threatened before any court
or governmental agency seeking to restrain or prohibit or to obtain damages or
other relief in connection with this Agreement or the transactions contemplated
hereby.
9.4 Employment Agreement. Shareholder shall have executed
and delivered to Purchaser and LNB the Employment Agreement designated in
Section 3 of this Agreement.
9.5 Delivery of Closing Documents. Seller and any other
parties thereto shall have executed and delivered to Purchaser the instruments
of transfer contemplated in Section 2.6, including the ▇▇▇▇ of Sale and
Assignment of Lease documents.
9.6 Assignment of Membership Interest. Seller shall have
assigned to Purchaser all of Seller's 49% membership interest in TransNational
Title Agency, Ltd., an Ohio limited liability company, including all rights
under the Operating Agreement relating thereto, as amended to date, for the
additional purchase price of Nine Thousand Eight Hundred Dollars ($9,800.00),
and Purchaser and Seller shall have executed and delivered a written assignment
in form and substance acceptable to Seller and Purchaser (the "TransNational
Assignment").
10. CONDITIONS TO SELLER'S AND SHAREHOLDER'S OBLIGATIONS. Unless
waived in writing by Seller and Shareholder (in their sole discretion), Seller's
obligation to sell the Business
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Assets and Seller's and Shareholder's obligation to perform their respective
other duties and obligations contained in this Agreement are expressly subject
to the following conditions:
10.1 Representations, Warranties and Covenants. Each
representation and warranty of Purchaser and/or LNB shall be deemed made again
as of Closing on the Closing Date and shall be true in all material respects as
if so made again. Further, Purchaser and LNB shall have performed each
obligation and complied with each covenant required by this Agreement to be
performed or complied with by Purchaser or LNB in all material respects on or
prior to Closing.
10.2 Authorization of Agreement. At Closing on the Closing
Date, Purchaser and LNB shall deliver to Seller certified copies of all
shareholder's resolutions and directors' resolutions of Purchaser and LNB
authorizing the execution and performance of this Agreement, the purchase of the
Business Assets and the formation and capitalization of Purchaser, as
contemplated hereby.
10.3 No Adverse Proceedings. As of Closing on the Closing
Date, no material suit, action or other proceeding shall be pending or
threatened before any court or governmental agency seeking to restrain or
prohibit, or to obtain damages or other relief in connection with, this
Agreement or the transactions contemplated hereby.
10.4 Employment Agreement. Purchaser and LNB shall have
executed and delivered to Shareholder the Employment Agreement designated in
Section 3 of this Agreement.
10.5 Delivery of Closing Documents. Purchaser and any
other parties thereto shall have executed and delivered to Seller the
instruments of transfer contemplated in Section 2.6, including the ▇▇▇▇ of Sale
and Assignment of Lease documents.
10.6 Delivery of Asset Purchase Price. Purchaser shall
have delivered to Seller the Asset Purchase Price.
10.7 Release of LNB Loan. LNB shall have delivered to
Seller and Shareholder a release, in form acceptable to Seller and Shareholder,
of all liabilities and obligations of Seller and Shareholder with respect to
Seller's line of credit loan from LNB and Shareholder's guaranty thereof.
10.8 Formation of Purchaser. The formation, organization
and capitalization of Purchaser, as contemplated in Schedule 5.1 hereto, shall
have been completed.
10.9 TransNational Assignment. The TransNational
Assignment shall have been consummated, Purchaser shall have paid in full to
Seller the additional purchase price set forth in Section 9.6 and Purchaser and
Seller shall have executed and delivered the assignment document referenced
therein.
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11. UPDATE OF SCHEDULES. Seller shall update each of the Schedules
attached hereto or delivered herewith as of Closing on the Closing Date, such
that all items disclosed in said Schedules shall be true and complete as of
Closing on the Closing Date.
12. RISK OF LOSS. In the event any Business Asset is damaged prior
to transfer of title and possession to Purchaser, the entire risk of loss is
hereby assumed by Seller. In such event, at Purchaser's option, Purchaser shall
receive all insurance proceeds payable as a result of said damage and close this
transaction as contemplated hereby with no reduction in the Asset Purchase Price
or waiver of any conditions precedent, or Purchaser may terminate this Agreement
and all Parties shall be relieved from further obligations under this Agreement;
provided, however, that Purchaser may not terminate this Agreement if the damage
to said Business Assets prior to Closing on the Closing Date reasonably will
require a cost to repair or replace less than Ten Thousand Dollars ($10,000.00).
13. CLOSING.
13.1 Deliveries to Seller and Shareholder. At Closing and
upon the satisfaction of all conditions of Closing (as designated in this
Agreement) and Seller's and Shareholder's deposit with Purchaser of all
documents and other items required of Seller and Shareholder hereunder,
Purchaser shall deliver to Seller and Shareholder, as the case may be, the
following:
(a) The check described in Section 2.4; and
(b) Certified copies of the resolutions
described in Sections 10.2; and
(c) Any other funds, documents or items required
under this Agreement, including Section 2.6
and Section 10 hereof.
13.2 Deliveries to Purchaser. At Closing and upon the
satisfaction of all conditions of Closing (as designated in this Agreement) and
Purchaser's deposit with Seller and Shareholder of all documents, funds and
other items required of Purchaser hereunder, Seller and Shareholder shall
deliver to Purchaser the following:
(a) The ▇▇▇▇ of Sale, Assignment of Lease and
related transfer documents described in
Section 2.6; and
(b) An Amendment to Seller's Articles of
Incorporation described in Section 2.7; and
(c) Certified copies of the resolutions
described in Sections 2.7 and 9.2; and
(d) Any other funds, documents or items required
under this Agreement.
14. SURVIVAL. All representations, warranties, promises and
covenants of Seller, Shareholder and Purchaser contained in and made pursuant to
this Agreement shall survive the
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execution of this Agreement, Closing and consummation of the transactions
contemplated hereunder to the extent provided elsewhere herein.
15. MISCELLANEOUS.
15.1 Termination.
(a) This Agreement may be terminated at any time prior to
the Closing:
(i) by mutual written agreement of all Parties;
(ii) by either Seller or Purchaser, immediately,
upon written notice to the other Parties, if the Closing will
not have been consummated on or before September 30, 2004;
(iii) by any Party, immediately, upon written
notice to all other Parties, if there will be any law or
regulation that makes the consummation of the transactions
contemplated hereby illegal or otherwise prohibited or if
consummation of the transactions contemplated hereby would
violate any non-appealable final order, decree or judgment of
any governmental authority having competent jurisdiction;
(iv) by either Seller or Shareholder, upon
written notice of such termination to Purchaser, if either
Purchaser or LNB has breached any material representation,
warranty or covenant contained in this Agreement, and the
breach has continued for a period of fifteen (15) days after
written notice of the breach is received by the breaching
party; or
(v) by either LNB or Purchaser, upon written
notice of such termination to Seller, if either Seller or
Shareholder has breached any material representation, warranty
or covenant contained in this Agreement, and the breach has
continued for a period of fifteen (15) days after written
notice of the breach is received by the breaching party.
(b) If this Agreement is terminated as permitted by
paragraphs 15.1(a)(i)-(iii) above, such termination will be without liability of
any party (or any stockholder, director, officer, employee, agent, member,
consultant or representative of such party) to the other parties to this
Agreement. The Parties reserve their rights in the case of a termination
pursuant to paragraphs 15.1(a)(iv)-(v).
15.2 Consistent Treatment. The Parties agree to report the
transactions contemplated by this Agreement for Federal and State income tax
purposes in a manner consistent with the provisions of this Agreement.
15.3 Entire Agreement. Except as otherwise expressly
provided herein, this Agreement (including all Schedules attached hereto)
represents the entire agreement between the Parties regarding the subject matter
hereof and supersedes all prior written and oral agreements,
- 19 -
promises, representations and/or understandings among the Parties regarding the
subject matter hereof. The Parties acknowledge that there are no other written
or verbal agreements, promises, representations, warranties and/or
understandings among the Parties with respect to the subject matter hereof,
except as otherwise expressly provided in this Agreement.
15.4 Assignability. No Party may assign this Agreement or
such Party's rights and obligations under this Agreement without the prior
written consent of the other Parties. This Agreement shall be binding upon and
inure to the benefit of each Party and such Party's respective heirs, executors,
administrators, successors and assigns but nothing in this Agreement shall
confer any rights or remedies upon any person or entity other than the Parties.
15.5 Ohio Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Ohio. All Parties hereto
agree that exclusive venue for all litigation arising under this Agreement lies
with the State Courts of Lorain County, Ohio and, further, agree to submit
(jointly and individually) to the personal jurisdiction of such State Courts.
15.6 Severability. If any provision of this Agreement is
invalid, illegal, or unenforceable, the remaining provisions of this Agreement
shall continue in effect and, if any provision is inapplicable to any Party or
circumstance, such provision shall nevertheless remain applicable to all other
Parties and circumstances.
15.7 Waiver. A waiver by any Party of a breach of any
provision of this Agreement shall not operate as (or be construed to be) a
waiver of any other breach of such provision or any breach of any other
provision of this Agreement. The failure of a Party to enforce any term or
condition of this Agreement on one or more occasions shall not be considered a
waiver or deprive that Party of the rights thereafter to enforce such term or
any other term of this Agreement. Any waiver must be written and signed by the
waiving Party.
15.8 Amendments. This Agreement may be changed or amended
only by a written document which is clearly designated as an amendment to this
specific Agreement and signed by all Parties.
15.9 Word Usage. If the context of this Agreement so
requires, the singular includes the plural (and vice-versa) and the masculine,
feminine and neuter include each other. The section headings contained in this
Agreement are for reference purposes only and shall not affect the meaning or
interpretation of this Agreement.
15.10 Remedies. Unless otherwise expressly provided herein,
the rights and remedies of a Party under a particular provision of this
Agreement shall not be exclusive and shall not exclude, limit or waive any other
right or remedy a Party has or may hereafter have under another provision of
this Agreement or as a matter of law or equity.
15.11 Notices. All notices and other communications
hereunder will be in writing and will be sent either by (a) certified mail,
postage prepaid, return receipt requested; (b) an overnight express courier
service that provides written confirmation of delivery; or (c)
- 20 -
facsimile with written confirmation by the sending machine or with telephone
confirmation of receipt, addressed as follows:
If Seller or Shareholder, to With a copy to:
▇▇▇▇▇ ▇ ▇▇▇▇▇▇: ▇▇▇▇▇▇▇ & ▇▇▇▇, P.L.L.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ Oak Point Professional Park
Attn:▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
FAX No:(▇▇▇) ▇▇▇-▇▇▇▇ Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
FAX No: (▇▇▇) ▇▇▇-▇▇▇▇
If to LNB or Purchaser: With a copy to:
The Lorain National Bank ▇▇▇▇▇▇▇, Herzer, Panza, ▇▇▇▇ & ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Attn: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esq.
FAX No: (▇▇▇) ▇▇▇-▇▇▇▇ Fax No. (▇▇▇) ▇▇▇-▇▇▇▇
Any party may change its address for receiving notice by giving notice of a
new address in the manner provided herein. Any notice given under this
section, will be deemed to be delivered on the third business day after the
same is deposited in the United States Mail, on the next business day if
sent by overnight courier, or on the same business day if sent by facsimile
before the close of business of the recipient, or the next day, if sent by
facsimile after the close of business of business of the recipient.
- 21 -
IN WITNESS WHEREOF, the Parties have caused this Agreement to be signed
as of the day and year first above written.
In the Presence of: LNB MORTGAGE, LLC
By:
------------------------------------ -----------------------------------
(Signature of First Witness) ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Secretary
-Purchaser-
------------------------------------
(Signature of Second Witness)
THE LORAIN NATIONAL BANK
By:
------------------------------------ -----------------------------------
(Signature of First Witness) ▇▇▇▇▇ ▇. ▇▇▇▇, President and CEO
-LNB-
------------------------------------
(Signature of Second Witness)
MORTGAGE ONE SERVICES, INC.
By:
------------------------------------ -----------------------------------
(Signature of First Witness) ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, President
-Seller-
------------------------------------
(Signature of Second Witness)
------------------------------------ --------------------------------------
(Signature of First Witness) ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-Shareholder-
------------------------------------
(Signature of Second Witness)
- 22 -
SUMMARY OF SCHEDULES:
2.1(a) -- Equipment
2.1(b) -- Pending Transactions
2.1(c) -- Accounts Receivable
2.3 -- Assumed Liabilities and Contracts
2.4 -- Purchase Price Allocation
2.6(a) -- ▇▇▇▇ of Sale
4B.9 - Trademarks and Tradenames
4B.10 - Employees and Compensation
5.1 -- Formation, Organization and Capitalization of Purchaser
- 23 -
