EXHIBIT 10.2
ASSET PURCHASE AGREEMENT AND ESCROW INSTRUCTIONS
THIS ASSET PURCHASE AGREEMENT AND ESCROW INSTRUCTIONS (the "Agreement") is
made and entered into as of December 30, 2005 (the "Effective Date") by and
between Xxxxxxxx Mining Company, Inc., an Ohio corporation (the "Buyer"), a
wholly-owned subsidiary of Chartwell International, Inc., and The Estate of
Xxxxx Xxxx X. Xxxxx, aka Xxxxx Xxxx X. Xxxxxxx, having an address Xxxx X.
Xxxxxx, Executrix, 00 Xxxxxxxxx Xxxx, Xxxxxxxxx, Xxx Xxxx 00000 (the "Seller").
BACKGROUND
A. Seller and Buyer entered into that certain Option Agreement dated as of
January 5, 2005 (the "Option Agreement") wherein the Seller granted to Buyer the
exclusive right and option to purchase property in the Townships of Symmes,
Decatur and Xxxxxxxxxx, Xxxxxxxx County, Ohio (the "Option").
B. Chartwell International, Inc. acquired Xxxxxxxx on September 8, 2005 and
pursuant to that certain Letter Agreement by and between Chartwell
International, Inc., Seller, E-Rail Logistics, Inc. and Xxxxxxxx dated as of
September 8, 2005, Seller affirmed that Buyer's rights under the Option
Agreement remain in full force and effect.
C. On December 13, 2005 and pursuant to the terms of the Option Agreement,
Chartwell International, Inc., on behalf of Buyer provided notice to Seller of
its intent to exercise the Option.
D. Subject to the terms and conditions of this Agreement, Buyer is hereby
exercising the Option to purchase all of the assets of Seller identified in
Exhibit A to the Option Agreement and Seller is selling all of the assets of
Seller identified in Exhibit A to the Option Agreement.
AGREEMENT
1. SALE AND PURCHASE OF ASSETS.
1.1 Sale of Assets . On the terms and subject to the conditions of this
Agreement and for the consideration set forth herein, Seller hereby, sells,
conveys, assigns, transfers and delivers to Buyer, and Buyer hereby
purchases and acquires from Seller, all of the assets of Seller identified
in Exhibit A to the Option Agreement and attached hereto as Schedule 1.2
(the "Assets").
1.2 Purchase Price. Subject to the other terms and conditions of this
Agreement, and in full consideration for the Assets, Buyer shall pay to
Seller $149,000 less the credit of $46,500 that has previously been paid to
Seller, leaving a remaining purchase price of $102,500 (the "Cash
Consideration").
1.3 No Assumption of Liabilities. In connection with the purchase and sale of
the Assets pursuant to this Agreement, Buyer hereby assumes no obligations
or liabilities of any nature whether known or unknown, whether fixed or
contingent,accrued or unaccrued related to the Assets or the land on which
the Assets reside. Any and all such liabilities and obligations shall
remain the responsibility of Seller. There are no exceptions to title,
obligations, physical or environmental matters known to Buyer as of the
Effective Date.
1.4 Closing. The purchase and sale of the Assets shall occur on or about
January 31, 2006 (the "Closing Date").
2. BUYERS APPROVALS
2.1 Conditions Precedent to Buyer's Obligations. Buyer's approval of the items
set forth in this Section 2 shall constitute conditions precedent to all of
Buyer's obligations under this Agreement, which conditions precedent shall
be for the sole benefit of Buyer. Failure to give notice of approval shall
constitute disapproval.
2.2 Review of Title.
2.2.1. Buyer's Title Approval Period. Buyer shall obtain a preliminary
title report (the "Title Report") issued by the Escrow Holder (as
hereinafter defined) and copies of all documents referred to in the Title
Report (collectively, with the Title Report, the "Title Documents") at its
sole discretion. Buyer shall have until ten (10) days prior to close of
escrow (the "Approval Date") to give Seller and the Escrow Holder written
notice (the "Buyer's Title Notice") of Buyer's disapproval or conditional
approval of the legal description and any matters shown in the Title
Documents or in any supplemental title report. The failure of Buyer to give
Buyer's Title Notice on or before the Approval Date shall be deemed to
constitute Buyer's approval of the legal description and all matters shown
in the Title Documents.
2.2.2. Seller shall eliminate or ameliorate, to Buyer's satisfaction,
such title matters as Buyer may reasonably disapprove on or before the
Approval Date other than (i) a lien to secure payment of real estate taxes
and assessments not delinquent and (ii) exceptions to title set forth in
the title commitment or preliminary title report received by Buyer. Seller
agrees to eliminate as exceptions to title to the Property all such matters
by the Closing Date as a condition to the close of escrow for Buyer's
benefit.
2.2.3. Buyer's Remedies
(a) Failure by Seller to eliminate all such matters shall constitute
material breach by Seller of this Agreement, and Buyer shall be entitled to
all remedies as provided in Section 8.1.
(b) All of the provisions of this Section 2.2 shall apply to any
supplemental report issued by the Title Company containing exceptions to
title or other items not disclosed by the Title Report originally delivered
to Buyer (the "Supplemental Report").
2.2.4. Permitted and Non-Permitted Exceptions. Any exceptions to title
representing monetary liens or encumbrances (other than liens for
non-delinquent property taxes and assessments) and not previously approved,
accepted or waived by Buyer in connection with this Agreement are hereby
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disapproved by Buyer, and Seller shall cause such monetary liens or
encumbrances to be removed on or before the close of escrow. The following
exceptions to title are referred to hereinafter as the "Permitted
Exceptions": (a) matters created, approved or waived by Buyer, and (b)
unless Buyer requires an ALTA extended coverage owner's policy, the
exceptions shown on the standard printed title policy form.
2.3 Inspections. As provided herein, Buyer, at Buyer's sole option, cost and
expense, will have the right to inspect and review the Property including
its physical and environmental condition (the "Inspections"). Within five
(5) days after receipt of the inspection report (the "Feasibility Period"),
Buyer shall approve all inspections, tests, economic analyses and other
analyses of the Assets desired by Buyer including, without limitation, all
tests, borings and samplings desired by Buyer to determine the location and
existence of the Assets as well as whether any Hazardous Materials, as
defined below, are present on the property where the Assets are located.
Buyer shall have the right to conduct a "Phase I" and/or "Phase II"
environmental assessment of the property where the Assets are located
during the Feasibility Period. If Buyer is not satisfied, in Buyer's sole
and absolute discretion, with the results of Buyer's Inspections of the
Assets or the property where the Assets are located during the Feasibility
Period, Buyer may terminate this Agreement by giving written notice thereof
to Seller on or before 5:00 p.m., local time, on the last day of the
Feasibility Period.
2.4 Ancillary Administration. Seller shall conduct all ancillary administration
proceedings in Xxxxxxxx County, Ohio establishing Seller's legal right to
sell, transfer and convey the Assets to Buyer.
3. REPRESENTATIONS AND WARRANTIES OF SELLER.
Except as set forth in Schedule 3, Seller hereby represents and
warrants to Buyer that the following statements are true and correct as of
the date of this Agreement, and shall be true and correct as of the close
of escrow, and the truth and accuracy of such statements shall constitute a
condition to all of Buyer's obligations under this Agreement.
3.1 Power and Authority. Seller has full power and authority to execute and
deliver this Agreement and to perform her obligations under this Agreement.
3.2 Authority Relating to this Agreement; No Violation of Other Instruments.
Assuming execution of this Agreement by Buyer, this Agreement will
constitute a legal, valid and binding obligation of Seller, enforceable
against Seller in accordance with its terms, subject as to enforcement: (i)
to bankruptcy, insolvency, arrangement, moratorium and other laws of
general applicability relating to or affecting creditors' rights; and (ii)
to general principles of equity, whether such enforcement is considered in
a proceeding in equity or at law. The entering into and consummation of
this Agreement by Seller will not constitute or result in a material
default under any other contract by which Seller is bound or, to the
Seller's knowledge, that the Assets are bound. Furthermore, no consents or
waivers of or by any third party are necessary to permit the consummation
by the Seller of the transaction contemplated by this Agreement.
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3.3 Ownership and Delivery of Assets. Seller is the true and lawful owner of
the Assets and has all necessary power and authority to transfer the Assets
to Buyer free and clear of all liens, charges, easements, security
interests, mortgages, conditional sale contracts, equities, rights of way,
covenants, restrictions, title defects, objections, claims or other
encumbrances (the "Liens") other than the Permitted Exceptions. No other
person has any direct or indirect interest in any of the Assets. Upon
delivery to Buyer of the Grant Deed (as hereinafter defined) and other
instruments of conveyance with respect to the Assets, Buyer will hereby
acquire good and valid title to the Assets free and clear of all Liens.
3.4 Compliance with Law. To the best of Seller's knowledge, Seller is not in
violation of any decree, judgment, order, law or regulation of any court or
other governmental body (including without limitation, applicable
environmental protection legislation and regulations), which violation
could have a material adverse effect on the condition, financial or
otherwise, of the Assets. The Seller has no knowledge that the Assets are
subject to any private or governmental lien or judicial or administrative
notice or action relating to any hazardous or toxic materials, pollutants,
contaminants, constituents, or wastes, or any other chemical, material or
substance. To the Seller's knowledge, no Hazardous Materials are, or have
been, stored on or below the surface of the property wherein the Assets are
located by Seller or any other person or entity. As used herein, "Hazardous
Materials" means all substances now or hereafter designated as "hazardous
substances", "hazardous materials", "toxic substances", or words of similar
import under any other federal, state, or local laws or in any regulations
adopted and publications promulgated pursuant to any environmental
regulation, contamination, or clean-up.
Without limiting the other provisions of this Agreement, Seller shall
cooperate with Buyer's investigation of matters relating to the foregoing
provisions of this section and provide access to and copies of any data
and/or documents dealing with potentially Hazardous Materials used at the
property wherein the Assets are located and any disposal practices
followed. With Seller's written consent, which shall not be unreasonably
withheld, Buyer may make inquiries of governmental agencies regarding such
matters without liability to Seller for the outcome of such discussions.
3.5 Litigation. To the best of Seller's knowledge, Seller is not a party to any
pending, threatened action, suit, proceeding or investigation, at law or in
equity or otherwise in, for or by any court or other governmental body
which could have a material adverse effect on: (i) the condition, financial
or otherwise, of the assets of Seller; or (ii) the transactions
contemplated by this Agreement; nor, to the best of Seller's knowledge,
does any basis exist for any such action, suit, proceeding or
investigation. To the best of Seller's knowledge, Seller is not subject to
any decree, judgment, order, law or regulation of any court or other
governmental body which could have a material adverse effect on the
condition, financial or otherwise, of the Assets or which could prevent the
transactions contemplated by this Agreement.
3.6 Accuracy of Documents and Information. The copies of all instruments,
agreements, other documents and written information set forth as, or
referenced in, Schedules or Exhibits to this Agreement or specifically
required to be furnished pursuant to this Agreement to Buyer by Seller are
and will be complete and correct in all material respects. No
representations or warranties made by Seller in this Agreement, nor any
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document, written information, statement, financial statement, certificate,
Schedule or Exhibit furnished directly to Buyer pursuant to this Agreement
contains any untrue statement of a material fact, or omits to state a
material fact necessary to make the statements or facts contained herein
not misleading.
4. REPRESENTATIONS AND WARRANTIES OF BUYER.
Buyer hereby represents and warrants to Seller that:
4.1 Organization and Authority. Buyer is a corporation duly organized, validly
existing and in good standing under the laws of the State of Nevada. Buyer
has all necessary corporate power and authority to enter into and perform
this Agreement.
4.2 Authority Relating to this Agreement; No Violation of Other Instruments.
The execution and delivery of this Agreement and the performance hereunder
by Buyer have been duly authorized by all necessary corporate action on the
part of Buyer and, assuming execution of this Agreement by Seller, this
Agreement will constitute a legal, valid and binding obligation of Buyer,
enforceable against Buyer in accordance with its terms, subject as to
enforcement: (i) to bankruptcy, insolvency, reorganization, arrangement,
moratorium and other laws of general applicability relating to or affecting
creditors' rights; and (ii) to general principles of equity, whether such
enforcement is considered in a proceeding in equity or at law.
5. COVENANTS OF SELLER.
Seller covenants as follows:
5.1 Access to Properties and Records. Seller shall furnish to Buyer any and all
financial, technical and operating data and other information pertaining to
the Assets as Buyer may from time to time reasonably request, including
without limitation, studies and reports regarding the location and amount
of the Assets. Seller shall also provide or cause to be provided to Buyer
at Seller's expense such copies or extracts of documents and records
related to the Assets as Buyer reasonably may request.
5.2 Advice of Developments. Seller shall have a continuing obligation after the
date of this Agreement to advise Buyer of all significant matters of which
it becomes aware concerning the Assets.
6. INDEMNITY.
6.1 Seller's Indemnity. Seller shall indemnify and hold harmless Buyer from and
against any and all losses, costs, expenses, liabilities, obligations,
claims, demands, causes of action, suits, settlements and judgments of
every nature, including the costs and expenses associated therewith and
reasonable attorneys' and witness fees and court costs incurred (the
"Buyer's Damages") which arise out of: (i) the breach by Seller of any
representation or warranty made by it pursuant to this Agreement, or any
third-party allegation thereof; or (ii) the non-performance, partial or
total, of any covenant made by it pursuant to this Agreement, or any
third-party allegation thereof. Seller's indemnification obligations shall
be limited to the amount of the Cash Consideration.
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6.2 Buyer's Indemnity. Buyer shall indemnify and hold harmless Seller from and
against any and all losses, costs, expenses, liabilities, obligations,
claims, demands, causes of action, suits, settlements and judgments of
every nature, including the costs and expenses associated therewith and
reasonable attorneys' and witness fees and court costs incurred (the
"Seller's Damages" and when used together with or in the alternative to
Buyer's Damages, the "Damages"), which arise out of the breach by Buyer of
any representation or warranty made by Buyer pursuant to this Agreement.
Buyer's indemnification obligations shall be limited to the amount of the
Cash Consideration.
6.3 Notice. In the event that party suffers Damages, the party making a claim
for indemnification (the "Indemnitee") shall within sixty (60) days of
discovering or incurring such Damage give the indemnifying party (the
"Indemnitor") written notice thereof (a "Notice of Claim"). The Notice of
Claim shall state in reasonable detail the nature of the claim, the
specific provisions in this Agreement alleged to have been breached, and
the amount of the claim for indemnification. Such amount shall represent
the Indemnitee's good faith estimate of the Damages. The Indemnitor shall
have thirty (30) days from receipt of the Notice of Claim to accept or
reject the claim for indemnification. The Indemnitee shall be deemed to
have waived its right to indemnification for any Damages for which notice
is not given in a timely manner as set forth herein if and to the extent
that the Indemnitor can show that such failure to give timely notice has
materially prejudiced the Indemnitor's ability to defend or otherwise
respond to such claim. Any claim for Damages accepted by the Indemnitor or
any claim determined as valid under the claim procedure set forth below,
shall be deemed "Established Damages" for the purposes of this Agreement.
6.4 Claims of Buyer and Seller. If a Notice of Claim is given pursuant to
Section 6.3 above, and no rejection is received within the thirty (30) day
period specified above, then the Indemnitor shall be deemed to have
accepted such claim. If the Indemnitor rejects a claim within such thirty
(30) day period, the parties shall, in good faith, attempt to negotiate a
resolution of such claim within sixty (60) days thereafter (the "Resolution
Period"). If the parties do not reach resolution during the Resolution
Period, then the Indemnitee may, within thirty (30) days after the end of
the Resolution Period proceed to submit the controversy to arbitration
under the rules then in effect of the American Arbitration Association. The
determination of the arbitrator(s) shall be binding, final and conclusive
on the parties. The expenses in connection with any arbitration shall be
borne equally by the parties unless determined otherwise by the
arbitrator(s). If as a result of such arbitration it is determined that the
Indemnitor is obligated for such Damages, the amount set by such
arbitration shall be the amount of the Established Damages and the
Indemnitor shall owe such amount. If as a result of such arbitration it is
determined that the Indemnitor has no obligation to indemnify, the
Indemnitor shall have no further liability on the claim.
6.5 Limitation on Indemnification. Neither party shall have a right to assert
any claim for indemnification under this Agreement more than three (3)
years after the date hereof.
7. ESCROW INSTRUCTIONS
7.1 Agreement to Constitute Escrow Instructions. Exhibit B to this Agreement
shall constitute the escrow instructions of Buyer to Xxxxxxxx & Xxxxxxxx
Co., L.P.A. of 000 Xxxx Xxxxxx, X.X. Xxx 000, Xxxxxxx, Xxxx 00000 (the
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"Escrow Holder"). An escrow has been established with the Escrow Holder
(the "Escrow").
7.2 Delivery of Agreement. Within three (3) days after execution of this
Agreement by Seller and Buyer, Buyer shall deposit a fully executed copy of
this Agreement with the Escrow Holder. The Escrow Holder shall insert the
date of receipt into the paragraph entitled "ACCEPTANCE BY ESCROW HOLDER"
found on the last page of this Agreement, and shall notify the parties of
the date of such receipt.
7.3 Close of Escrow, Closing Date. The "close of escrow" shall mean the date on
which the Grant Deed (as defined in Section 7.6.1 below) is recorded in the
Official Records of Xxxxxxxx County, Ohio. Provided all conditions to the
close of escrow set forth in this Agreement have been approved or waived as
herein provided, and subject to extension as provided below, the close of
escrow shall take place on or about the Closing Date.
7.4 Buyer's Obligations. On or before the Closing Date, Buyer shall deliver to
the Escrow Holder all of the following:
7.4.1. Cash Consideration. The Cash Consideration in the form of cash,
confirmed wire transfer of funds, or bank cashier's check drawn on a
nationally recognized financial institution and made payable to the Escrow
Holder; and
7.4.2. Other Sums and Documents. All other sums and documents required
by the Escrow Holder to carry out and close the escrow.
7.5 Seller's Obligations. On or before the Closing Date, Seller shall deliver
to the Escrow Holder all of the following:
7.5.1. General Warranty Deed. A fully executed and notarized general
warranty deed conveying the Assets to Buyer (the "Grant Deed") in the form
attached hereto as Exhibit A;
7.5.2. Certificate of Non-Foreign Status. A certificate evidencing
Seller's exemption from tax withholding under Internal Revenue Code Section
1445 (the "Certificate"); and
7.5.3. Other Sums and Documents. All other sums and documents required
by the Escrow Holder to carry out and close escrow.
7.6 Conditions to Closing of Escrow. The close of escrow shall not take place
unless and until:
7.6.1. Deposit of Sums and Documents. Both parties have deposited with
the Escrow Holder all sums and documents required by this Agreement;
7.6.2. Issuance of Title Policy. The Title Company is prepared to
issue to Buyer an ALTA extended coverage owner's policy of title insurance
(the "ALTA Policy") in the amount of the Cash Consideration, showing fee
title vested in Buyer, subject only to the Permitted Exceptions;
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7.6.3 Ancillary Proceedings. Seller shall have concluded all ancillary
proceedings in Xxxxxxxx County, Ohio necessary to legally transfer, sell
and convey title to the Assets for the benefit of the Buyer, and provided
written evidence thereto.
The conditions stated in Sections 7.6.2 and 7.7.3, and the delivery by
Seller of the Certificate and the Documents are for the sole benefit of
Buyer and may be waived only by Buyer. If Seller fails to deposit the
Certificate with the Escrow Holder as required pursuant to Section 7.5.2
above, Buyer and the Escrow Holder are authorized and entitled to withhold
and remit to the Internal Revenue Service, any amounts otherwise payable or
distributable to Seller, such amount as Internal Revenue Code Section 1445,
or any successor or similar statute, may require.
7.7 Closing Procedure. Upon receipt of all funds and instruments described in
this Article, and upon satisfaction or waiver of all contingencies and
conditions set forth in this Agreement, the Escrow Holder shall:
7.7.1. Recordation of Grant Deed. Record the Grant Deed in the
Official Records of Xxxxxxxx County, Ohio;
7.7.2. Issuance of Title Policy. Cause the Title Company to issue to
Buyer an ALTA extended coverage owner's policy of title insurance in the
amount of the Cash Consideration, showing fee title to the Assets vested in
Buyer, subject only to the Permitted Exceptions;
7.7.3. Delivery of Documents. Deliver to Buyer the Certificate and the
Documents; and
7.7.4. Delivery of Cash Consideration. Deliver the Cash Consideration
to Seller.
7.8 Prorations and Credits. Real property taxes and assessments shall be
prorated between Buyer and Seller as of the close of escrow based on the
latest available tax information. The proration shall be based on a thirty
(30) day month and a three hundred sixty (360) day year. Seller shall be
responsible for any supplemental assessment attributable to the period
prior to the Closing Date.
7.9 Costs of Escrow.
7.9.1. Seller's Costs. Seller shall pay:
(a) One-half (1/2) of the escrow fee, if any, and the cost of
documentary transfer taxes in connection with the recordation of the Grant
Deed; and
(b) The cost of any of Seller's other obligations under this
Agreement.
7.9.2. Buyer's Costs. Buyer shall pay:
(a) One-half (1/2) of the escrow fee, if any, and the cost of
documentary transfer taxes in connection with the recordation of the Grant
Deed; and
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(b) The CLTA and ALTA increment of the premium for the Title
Policy; and
7.10 Escrow Holder's General Provisions. The Escrow Holder is hereby instructed
to attach to this Agreement a copy of the Escrow Holder's standard printed
escrow instructions, which are hereby incorporated into this Agreement in
their entirety. In the event of any inconsistency between this Agreement
and such standard printed escrow instructions, this Agreement shall govern
the rights and obligations of Seller and Buyer.
8. REMEDIES. Time is of the essence to each and every provision of this
Agreement. If Seller materially defaults under this Agreement, then Buyer
may, at Buyer's option and only after giving Seller no less than thirty
(30) days, after receipt of written notice from Buyer, to cure such
default, terminate the escrow and recover all funds deposited in escrow,
other than any option payments or other option consideration previously
paid in connection with the Option Agreement, and/or initiate an action for
specific performance of this Agreement.
9. MISCELLANEOUS.
9.1 Assignment. This Agreement shall be binding upon and inure to the benefit
of the successors and assigns of the parties; provided, however, that the
rights and duties of Seller under this Agreement may not be assigned. Buyer
may novate, in whole or in part and to one or more third parties, any of
its rights or obligations under this Agreement.
9.2 Transfer Taxes. Any sales, use, or other transfer taxes arising out of or
incurred in connection with the transactions contemplated by this Agreement
shall be paid by Seller.
9.3 Expenses. Except as otherwise expressly provided herein, each party will
pay its own costs and expenses, including legal and accounting expenses,
related to the transactions provided for herein, irrespective of when
incurred.
9.4 Further Assurances. Seller will from time to time, at Buyer's request and
without further consideration, execute and deliver such other instruments
of conveyance, assignment and transfer and take such other actions as Buyer
may reasonably request in order more effectively to convey, assign,
transfer to and vest in Buyer, the Assets.
9.5 Notices. Any notice or other communication required or permitted hereunder
shall be in writing and shall be deemed to have been duly given on the date
of service if served personally or by facsimile, or five (5) days after the
date of mailing if mailed, by first class mail, registered or certified,
postage prepaid. Notices shall be addressed as follows:
To Buyer at: 0000 Xxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxx, Xxxx Xxxxxxxx 00000
Attn: President
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With a copy to: Bullivant Xxxxxx Xxxxxx PC
0000 Xxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxx Xxx
To Seller at: Estate of Xxxxx Xxxx X. Xxxxx,
Xxxx X. Xxxxxx, Executrix
00 Xxxxxxxxx Xxxx
Xxxxxxxxx, Xxx Xxxx 00000
Attn: Xxxx X. Xxxxxx
With a copy to: Xxxxxxx & Xxxxxxxxxxx
000 Xxxxxxxxxx Xxx.
Xxxxxxxxx, XX 00000
Attn: Xxxxxxxx Xxxxxx
or to such other address as a party has designated by notice in writing to
the other party in the manner provided by this Section.
9.6 Entire Agreement and Modification. This Agreement constitutes and contains
the entire agreement of the parties and supersedes any and all prior
negotiations, correspondence, understandings and agreements between the
parties respecting the subject matter hereof. This Agreement may only be
amended by written instrument signed by both parties.
9.7 Survival of Terms. All warranties, representations and covenants contained
in this Agreement and any certificate or other instrument delivered by or
on behalf of the parties pursuant to this Agreement shall be continuous and
shall survive the signing of this Agreement.
9.8 Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Ohio applicable to contracts
entered into and wholly to be performed in the State of Ohio by Ohio
residents.
9.9 Severability. If any provision of this Agreement is held to be
unenforceable for any reason, it shall be adjusted rather than voided, if
possible, in order to achieve the intent of the parties to the extent
possible. If any event, all other provisions of this Agreement shall be
deemed valid and enforceable to the fullest extent possible.
9.10 Headings. The headings appearing at the beginning of several sections
contained herein have been inserted for the convenience of the parties and
shall not be used to determine the construction or interpretation of this
Agreement.
9.11 Counterparts. This Agreement may be executed in counterparts, including by
facsimile, each of which shall be deemed an original, but both of which
when taken together shall constitute one and the same instrument.
9.12 Incorporation of Exhibits. All exhibits attached and referenced to in this
Agreement are incorporated as though fully set forth in this Agreement.
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9.13 Effectiveness of this Agreement. Notwithstanding anything to the contrary
in this Agreement, this Agreement shall have no force or effect until it is
signed by the Buyer and Seller.
9.14 Cooperation in Drafting. Both Seller and Buyer have cooperated in the
drafting and preparation of this Agreement. Therefore, in any construction
to be made on this Agreement, such construction shall not be construed
against any party.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the Effective Date.
____________________________________
The Estate of Xxxxx Xxxx X. Xxxxx, Deceased, by Xxxx X. Xxxxxx, Executrix
XXXXXXXX MINING COMPANY, INC.,
an Ohio corporation
By: _______________________________
Name: Xxxx Xxxxxxx
Its: President
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ACCEPTANCE BY THE ESCROW HOLDER
The Escrow Holder acknowledges receipt on December 30, 2005, of a fully
executed copy of the foregoing "Asset Purchase Agreement and Escrow
Instructions" and attached "Escrow Instructions" fully executed by Seller and
Buyer.
The Escrow Holder shall (i) accept the foregoing Agreement, (ii) act as the
Escrow Holder under the Agreement, and (iii) be bound by the Agreement in the
performance of its duties as the Escrow Holder. However, the Escrow Holder shall
have no obligation, liability or responsibility under any amendment to the
Agreement, unless and until the amendment is accepted by the undersigned in
writing.
The escrow is assigned Escrow No. ______________
ESCROW HOLDER
By: ______________________________
Printed Name: ___________________
Title: ___________________________
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EXHIBIT A
FORM OF GENERAL WARRANTY DEED
EXHIBIT B
ESCROW INSTRUCTIONS
SCHEDULE 1.2
ASSETS SOLD
SCHEDULE 3
EXCEPTIONS TO REPRESENTATIONS AND WARRANTIES OF SELLER
