ASSET PURCHASE AGREEMENT

By and Between

FIRST INDIANA BANK, N.A.
(Seller)

And

TIERONE BANK
(Buyer)

Dated as of September 15, 2004

ASSET PURCHASE AGREEMENT

        This ASSET PURCHASE AGREEMENT (this “ Agreement ”), made effective as of September 15, 2004, is by and between FIRST INDIANA BANK, N.A., a national banking association (the “ Seller ”) and TIERONE BANK, a federal savings bank (the “ Buyer ”).

        WHEREAS, Seller operates certain construction lending offices in Charlotte, North Carolina; Raleigh, North Carolina; Orlando, Florida; and Phoenix, Arizona (such offices are collectively referred to as the “ Construction Lending Offices ”); and

        WHEREAS, Seller desires to sell its interests in the Construction Lending Offices and certain loans and certain assets related to the Construction Lending Offices, and the Buyer desires to purchase the foregoing assets and assume certain liabilities of the Seller associated with such assets upon the terms and conditions set forth herein.

        NOW, THEREFORE, in consideration of the premises and the representations, warranties and agreements herein contained, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:

ARTICLE 1
DEFINITIONS

    1.1.        Defined Terms . Unless the context otherwise requires, as used in this Agreement the following terms shall have the meanings specified in this ARTICLE 1 .

        “ Acquired Assets ” means the Assets less the Excluded Assets.

        “ Act ” means the Gramm-Leach-Bliley Act, as amended.

        “ Affiliate ” shall mean, as to any Person, any other Person which directly or indirectly controls, or is under common control with, or is controlled by, such Person. As used in this definition, “control” (including, with its correlative meanings, “controlled by” and “under common control with”) shall mean possession, directly or indirectly, of power to direct or cause the direction of management or policies (whether through ownership of securities, ownership of partnership or other equity interests, by contract or otherwise).

        “ Assets ” means the Loans, Tangible Personal Property, Office Equipment, Intangible Property, and Contracts.

        “ Assignment and Assumption Agreement ” means the assignment and assumption agreement pursuant to which the Seller transfers to the Buyer the Intangible Property included in the Acquired Assets and the post-Closing rights and obligations under the Assumed Liabilities and the Buyer assumes the Seller’s obligations relating thereto.

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        “ Assumed Liabilities ” means (a) the Contracts and (b) the obligations of the Seller under the Loans and/or the Loan Documents to the borrowers or any other applicable Person arising on or after the Closing Date.

        “ Bill of Sale ” means a Bill of Sale evidencing the sale and purchase of the Tangible Personal Property included in the Acquired Assets.

        “ Buyer ” shall have the meaning ascribed to it in the preamble hereto.

        “ Buyer Parties ” means, collectively, Buyer, all of Buyer’s Affiliates, and each of their respective directors, officers, employees, agents, representatives, attorneys, consultants, successors, and assigns.

        “ Classified Loans ” shall have the meaning ascribed thereto in Section 3.1 (b) .

        “ Closing ” means the closing of the purchase and sale of the Acquired Assets and the assumption of the Assumed Liabilities hereunder.

        “ Closing Construction Loan Balance ” means, as of the Closing Date, the outstanding principal balance of all Loans purchased by the Buyer pursuant to this Agreement.

        “ Closing Date ” means the date of Closing, which date shall be October 31, 2004, or such other date as is agreed between Buyer and Seller.

        “ Confidential Information ” shall have the meaning ascribed thereto in ARTICLE 9.

        “ Construction Lending Offices ” shall have the meaning ascribed to it in the preamble hereto.

        “ Construction Lending Policy Manual ” means, collectively, the Seller’s Construction Lending Standards and Practices Manual and Construction Operations Standards and Practices Manual containing a written summary of the Seller’s loan approval guidelines, file documentation requirements and disbursement procedures and other related information for the Construction Lending Offices, as updated from time to time, and delivered to Buyer prior to the date hereof.

        “ Contracts ” means those certain liabilities, obligations, and contracts (a) with or by the Seller which relate to the Construction Lending Offices, including the Leases and the Participations, and (b) are set forth on Schedule 1.1(a) .

        “ Defaulted Loan ” means any loan which has experienced a payment default (principal or interest), beyond any applicable cure period, since the Closing Date .

        “ Due Diligence” shall mean the investigation of the Acquired Assets and the Seller to be conducted by the Buyer during the Due Diligence Period pursuant to the terms and provisions of Section 8.1(h) hereof.

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        “ Due Diligence Period ” shall mean the period commencing on the date of execution and delivery of this Agreement by the last of the parties above executing and delivering the same and ending on the Closing Date, unless extended by mutual agreement of the parties.

        “ Encumbrance ” shall mean any restriction, charge, pledge, option, easement, security interest, right-of-way, encumbrance or other similar right of any Person.

        “ Environmental Claims” shall mean any notice of violation, notice of potential or actual responsibility or liability, claim, suit, action, demand, directive or order by any Person for any damage (including, but not limited to, personal injury, tangible or intangible property damage, contribution, indemnity, indirect or consequential damages, damage to the environment, environmental removal, response or remediation costs, nuisance, pollution, contamination or other adverse effects on the environment or for fines, penalties or restrictions on existing environmental Permits or licenses) resulting from or relating to (i) the presence of, the Release or threatened Release into the environment of, or exposure to, any Hazardous Substance, (ii) the generation, manufacture, processing, distribution, use, handling, transportation, storage, treatment or disposal of any Hazardous Substance, (iii) the violation, or alleged violation, of any Environmental Laws or (iv) the non-compliance or alleged non-compliance with any Environmental Laws.

        “ Environmental Laws” shall mean any applicable statutes, ordinances, directives or other laws, any rules or regulations, orders, and any licenses, Permits, orders, judgments, notices or other requirements issued pursuant thereto, enacted, promulgated or issued by any Governmental Authority, relating to pollution or protection of public health or the environment (including, but not limited to, any air, surface water, groundwater, land surface or sub-surface strata, whether outside, inside or under any structure), or to the identification, reporting, generation, manufacture, processing, distribution, use, handling, treatment, storage, disposal, labeling, deposit, transporting, presence, Release or threatened Release of, any Hazardous Substances, pollutants, contaminants, wastes or any other substances or materials. Without limiting the generality of the foregoing, Environmental Laws shall include the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended, the Toxic Substances Control Act, as amended, the Hazardous Materials Transportation Act, as amended, the Resource Conservation and Recovery Act, as amended, the Clean Water Act, as amended, the Safe Drinking Water Act, as amended, the Clean Air Act, as amended, and the Occupational Safety and Health Act, as amended, and all analogous laws enacted, promulgated or lawfully issued by any Governmental Authority.

        “ Excluded Assets ” means (a) the assets of the Seller which are related to the Construction Lending Offices and are set forth on Schedule 1.1(b) and (b) both of the following: (i) all trademarks, servicemarks, and copyrights, owned and/or used by the Seller and (ii) the use of the name “First Indiana Bank” or any variation of such name.

        “ Excluded Loans ” shall have the meaning ascribed to it in Section 3.2 .

        “ Governmental Authority” shall mean any federal, state, local or foreign government, or any political subdivision of any of the foregoing, or any court, agency or other entity, body, organization or group, exercising any executive, legislative, judicial, quasi-judicial, regulatory or administrative function of government.

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        “ Governmental Requirement” shall mean any statute, rule, regulation, code, plan, injunction, judgment, order, decree, ruling or charge of any Governmental Authority.

        “ Hazardous Substances ” shall mean any pollutants, contaminants, substances, chemicals, carcinogens, wastes and any ignitable, corrosive, reactive, toxic or other hazardous substances or materials, whether solids, liquids or gases (including, but not limited to, petroleum and its derivatives, PCBs, asbestos, radioactive materials, waste waters, sludge, slag and any other substance, material or waste), as defined in or regulated by any Environmental Laws or as determined by any Governmental Authority.

        “ Indemnified Party ” shall have the meaning ascribed thereto in Section 10.6 .

        “ Indemnifying Party ” shall have the meaning ascribed thereto in Section 10.6 .

        “ Intangible Property ” shall mean all right, title and interest of Seller in and to (i) the telephone numbers used in each of the Construction Lending Offices (to the extent permitted by any applicable vendors), (ii) each license or right to use a tradename, copyright, patent, service mark, trademark, trade secret and other intellectual property right of another Person used by Seller in the Construction Lending Offices included in the Acquired Assets and set forth on Schedule 1.1(c) , and (iii) customer and borrower contacts related to the Loans or the Construction Lending Offices.

        “ Knowledge ”, as used herein, “ to Seller’s Knowledge ” or “ to the Knowledge of Seller ” shall mean (and shall be limited to) the actual knowledge of Seller or any of its Representatives who are (a) directly involved with the Buyer in the negotiation and execution of this Agreement, (b) are in a senior management position with the Seller, or (c) the office manager of any of the Construction Lending Offices.

        “ Leases ” means the agreements between Seller and third party owners, lessees or sub-lessees relating to the use of the Construction Lending Offices’ office space or other assets used by Seller in the Construction Lending Offices set forth on Schedule 1.1(a) .

        “ Lien ” means any lien, claim, demand, Encumbrance, privilege, security interest, pledge or other charge.

        “ Loan Agreements ” means the means the agreements executed by the Seller and the respective borrower, guarantors, and other third parties relating to the Loans.

        “ Loan Documents ” means, as to any Loan, all documents, agreements (including security agreements and applicable control agreements), Notes, instruments, Mortgages, assignments of leases and rents, guaranties, financial statements, internal approvals, and files related to such loan.

        “ Loan Servicing Agreement ” shall have the meaning ascribed thereto in Section 4.1 .

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        “ Loans ” means the loans by the Seller which were originated at the Construction Lending Offices, reduced by any Participations relating thereto and are set forth on Schedule 1.1(d) , including the outstanding principal balance, accrued interest, the maximum funding obligation of Seller relating thereto, and all Loan Documents related to such Loans, but excludes the Excluded Loans.

        “ Losses ” means any and all claims, losses, damages, deficiencies, penalties, interest, fines, charges, fees, costs, assessments, judgments, awards, liabilities, and expenses (including court costs and reasonable attorneys’ fees and/or the allocated cost of in-house counsel).

        “ Mortgages ” means a mortgage, deed of trust, assignment of leases and rents or other applicable filing document securing the Notes dated the date of the respective Loan and Note and recorded in the public records of the county where the real estate described in the respective Mortgage is located.

        “ Net Construction Loan Balance ” means, as of the Refund Date, the Closing Construction Loan Balance less the Post Closing Construction Loan Balance.

        “ Nonpublic Personal Information ” shall have the meaning ascribed thereto in the Act.

        “ Notes ” means original executed promissory note or notes executed by a borrower to evidence the Loans, payable to the order of the Seller, and dated the date of, and in the principal amount of, the respective Loan by the Seller.

        “ Office Equipment ” means the computers, modems, printers, fax machines, equipment, furniture, file cabinets, desks, calculators, telephone systems, counters, safes, security systems and fixtures, together with any transferable manufacturer or vendor warranties related thereto, owned by the Seller, which are set forth on Schedule 1.1(e) , and located at any of the Construction Lending Offices.

        “ Participations ” means any agreement or undertaking by Seller pursuant to which Seller assigned and transferred a portion of any Loan to a third Person and are set forth on Schedule 1.1(f) , including the names, addresses and amount of each Participation owned by each third Person in each of the Loans.

        “ Past Due Loans ” shall have the meaning ascribed thereto in Section 3.1 .

        “ Permits” shall mean all licenses, permits and other authorizations relating to the Construction Lending Offices and the Loans as of the date hereof and any additional licenses, permits, or other authorizations relating to changes in the operation of the Construction Lending Offices after the date of execution hereof and prior to the Closing Date.

        “ Person ” means any individual, trustee, corporation, general partnership, limited partnership, limited liability company, limited liability partnership, joint stock company, trust, unincorporated organization, bank, business association, firm, joint venture, Governmental Authority, or otherwise.

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        “ Post Closing Construction Loan Balance ” means, as of the Refund Date, the sum of (a) the outstanding principal balance of all loans on the books of the Buyer which are Loans and/or were originated at any of the Construction Lending Offices, whether or not such loans were originated (i) on or prior to the Closing Date by the Seller or (ii) on or after the Closing Date by the Buyer plus (b) any Repurchase Loans which have been repurchased by the Seller, pursuant to Section 3.3 , prior to the Refund Date .

        “ Premium ” means the Principal Balance ( excludin g the Principal Balance of all Classified Loans included in the Loans) times Eighth Tenths of One Percent (0.8%).

        “ Principal Balance ” means the outstanding principal balance of the Loans as of the Closing Date, as set forth on Schedule 1.1(d) .

        “ Proceeding” shall mean any action, order, writ, injunction, judgment, decree, claim, suit, litigation, dispute, grievance, arbitral action, investigation or other proceeding.

        “ Purchase Price ” shall have the meaning ascribed to it in Section 2.3 .

        “ Refund Date ” means the date which is forty-five (45) days from the Closing Date.

        “ Release” shall mean any spillage, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, or disposing into the environment.

        “ Representative ” shall have the meaning ascribed thereto in Section 9.1 .

        “ Repurchase ” means the repurchase of any Defaulted Loan by the Seller.

        “ Repurchase Loan ” shall have the meaning ascribed to it in Section 3.3 .

        “ Repurchase Price ” means, as to any Defaulted Loan, the sum of (a) the outstanding principal balance of such loan on the date of Repurchase plus (b) the Premium paid by the Buyer to the Seller for such loan (if any) plus (c) any accrued interest on such loan as of the Closing Date which was paid by the Buyer to the Seller and for which the Buyer did not later receive payment thereof.

        “ Schedules ” shall mean the schedules referred to herein and attached or to be attached to this Agreement.

        “ Seller ” shall have the meaning ascribed to it in the preamble hereto.

        “ Seller Parties ” means, collectively, Seller, and all of Seller’s Affiliates and each of their respective directors, officers, employees, agents, representatives, attorneys, consultants, successors and assigns.

        “ Settlement Notice ” shall have the meaning ascribed thereto in Section 10.6 .

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        “ Tangible Personal Property” shall mean all tangible personal property (other than Excluded Assets) owned by the Seller and used in the Construction Lending Offices, including, without limitation, the Office Equipment and which is set forth on Schedule 1.1(e) .

        “ Tax Return” shall mean any return, declaration, report, claim for refund, or information return or statement relating to Taxes, including any schedule or attachment thereto, and any amendment thereof.

        “ Taxes” shall mean any federal, state, local or foreign income, gross receipts, license, payroll, employment, excise, severance, startup, occupation, premium, windfall profits, environmental, customs duties, capital stock, franchise, profits, withholding, social security (or similar), unemployment, disability, real property, personal property, intangible property, sales, use, transfer, registration, value added, alternative or add-on minimum, estimated, or other tax of any kind whatsoever, including any interest, penalty or addition thereto, whether disputed or not.

        “ Title Policy ” shall have the meaning ascribed thereto in Section 5.2(c)(iv) .

    1.2.        Numbers and Gender . Where the context so indicates, the masculine shall include the feminine and neuter, the singular shall include the plural and the plural shall include the singular and any reference to a person shall include an individual or a corporation, firm, partnership, trust or any other entity.

ARTICLE 2
SALE AND PURCHASE
LIMITED ASSUMPTION OF LIABILITIES

    2.1.        Sale and Purchase . Subject to the terms and conditions set forth herein, on the Closing Date, the Seller shall sell, convey, transfer, assign, and deliver to the Buyer, and the Buyer shall purchase, acquire, and accept from the Seller, all of the respective rights, title, and interests of the Seller in the Acquired Assets.

    2.2.        Sale at Closing Date . The sales, conveyances, transfers, assignments, and deliveries by the Seller to Buyer of the Acquired Assets, as herein provided, shall be effective on the Closing Date, free and clear of all Liens, by execution and delivery of (a) a Bill of Sale relating to the Tangible Personal Property, (b) the Assignment and Assumption Agreement, (c) a list of borrowers and guarantors, including addresses, telephone numbers, and other reasonable contact information, for each Loan on computer readable format as may be reasonably acceptable to the Buyer, and (d) and any other documents or forms necessary, in the reasonable discretion of Buyer, to effectively transfer the Acquired Assets from Seller to Buyer pursuant to the terms and provisions contained herein. Seller shall pay the costs and expenses relating to the preparation and filing of any and all documents or instruments reasonably required to effectuate the transactions provided for herein. Seller shall obtain, prior to the Closing Date, any consents of any third Person reasonably required by the Buyer relating to the assignment of the Contracts or the Intangible Property.

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    2.3.        Purchase Price . At the Closing, the Buyer shall pay to the Seller, via wire transfer pursuant to the written instructions of the Seller, the sum of clauses (a) and (b) of this Section 2.3 set forth below (such sum is referred to as the “Purchase Price ”):

        (a)        Loan Balance . The sum of all of the following amounts for each of the Loans as of the Closing Date:

i.

Principal Balance . The Principal Balance.

ii.

Accrued Interest . All accrued and unpaid interest.

iii.

Costs and Expenses . All costs and expenses related to the Loans which are due to the Seller as of the Closing Date and are set forth on Schedule 2.3 .

        (b)        Premium . The Premium.

    2.4.        Partial Refund of Premium . Within sixty days (60) following the Closing Date, the Buyer shall provide the Seller with the Post-Closing Construction Loan Balance as of the Refund Date. Following receipt of such balance, the Seller shall promptly pay to the Buyer (via wire transfer) an amount equal to the Premium paid by the Buyer on the amount by which the Net Construction Loan Balance exceeds Three Million Dollars ($3,000,000). The parties shall promptly provide to each other such information as either party may reasonably request to determine the amounts applicable to this Section 2.4 .

    2.5.         Limited Assumption of Liabilities . As of the Closing, the Buyer shall (a) irrevocably assume, (b) promptly pay when due, and (c) promptly and completely perform all of the obligations, liabilities, and responsibilities of the Seller under and/or pursuant to the Assumed Liabilities, in accordance with their terms. It is expressly agreed that the Buyer shall not, and by the terms and provisions of this Agreement or otherwise does not, assume any liability or obligation of any form or nature relating to any liabilities or obligations of Seller, including but not limited to any liability or obligation relating to the operation of the Construction Lending Offices prior to the Closing Date, which are not specifically included in the Assumed Liabilities. Without limiting the generality of the foregoing, Buyer shall not assume or be obligated in any respect to pay or be responsible for any wages, compensation (including any commission earned prior to the Closing Date), accrued benefits, contributions to or under any pension or profit sharing plan, deferred compensation, health insurance plan, union contract or any other employees’ benefit or welfare plan of Seller. Seller shall remain, and be responsible for, any and all of the liabilities and obligations relating to the Construction Lending Offices as of the Closing Date, other than Assumed Liabilities.

    2.6.        Closing . The Closing shall take place at the offices of the Seller in Indianapolis, Indiana on or before October 31, 2004 or such time and place on the Closing Date as may be mutually agreed upon by the parties.

    2.7.         Allocation of Purchase Price . The Seller and Buyer agree to allocate the Asset Purchase Price among the Assets in accordance with the allocation schedule attached hereto as Schedule 2.7 . The Parties further agree to prepare, execute and file any and all tax returns or other filing information required to be filed in accordance with and consistent with such allocation. In the event Schedule 2.7 is not completed on the date of execution hereof, the Seller and Buyer agree to use their best efforts, prior to the Closing Date, to complete Schedule 2.7 with advice provided by their respective tax advisors.

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ARTICLE 3
EXCLUDED LOANS AND LOAN REPURCHASE

    3.1.         Excludable Loans . The Buyer may, but shall have no obligation to, purchase Loans which are:

        (a)        Past Due . As of the Closing Date, thirty (30) days or more past due and which are set forth on Schedule 3.1(a) (“ Past Due Loans ”); or

        (b)        Classified Loans . As of the Closing Date, graded special mention, sub-standard, doubtful, loss or other comparable classification in accordance with the loan grading system of the Seller and which are set forth on Schedule 3.1(b) (the “Classified Loans ”).

    3.2.        Excluded Loans . The Loans shall not include the Past Due Loans and/or the Classified Loans set forth on Schedule 3.2.

    3.3.         Repurchase Obligation . Within seventy-five (75) days of the Closing Date, the Buyer shall provide the Seller with written notification of any Loan which became a Defaulted Loan within sixty (60) days of the Closing Date and request the repurchase of such Defaulted Loan(s) (each such loan is referred to as a “ Repurchase Loan ”). Following such notification, the Seller shall repurchase all Repurchase Loans from the Buyer for the Repurchase Price associated with such Loans.

    3.4.         Election to Purchase Classified Loans . Buyer shall have the right, prior to the Closing Date to elect to have one, some or all of the Classified Loans included in the Loans to be purchased by the Buyer pursuant to the terms and provisions of this Agreement, provided that, if the Buyer elects to purchase any such Classified Loans, the Seller agrees that the Purchase Price shall not include any Premium relating to such purchased Classified Loans. For all purposes, other than the determining of the amount of the Premium to be included in the Purchase Price, the Classified Loans Buyer elects to purchase shall be deemed included in the Loans, notwithstanding the provisions of Section 3.2 above and shall be deemed deleted from Schedule 3.2 hereof.

ARTICLE 4
LOAN SERVICING

    4.1.         Loan Servicing Agreement . The Seller and the Buyer shall execute and deliver, on the Closing Date, a Loan Servicing Agreement to be negotiated by the parties in good faith prior to the Closing Date, pursuant to which the Seller shall service the Loans on behalf of and for the Buyer (the “ Loan Servicing Agreement ”).

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    4.2.         Possession of the Loan Documents . From and after the Closing Date, and for so long as Seller shall service the Loans pursuant to the terms of the Loan Servicing Agreement, all Loan Documents shall remain in the possession of Seller which shall hold the same for the sole purpose of allowing Seller to fulfill its servicing obligations under the Loan Servicing Agreement.

ARTICLE 5
REPRESENTATIONS AND WARRANTIES OF SELLER

        As a material inducement to the Buyer to enter into this Agreement, and to consummate the transactions contemplated hereby, the Seller represents and warrants to the Buyer that the statements contained in this ARTICLE 5 are correct and complete as of the date of this Agreement and will be correct and complete as of the Closing Date (as though made then and as though the term “ Closing Date ” were substituted for the term “ date of this Agreement ” throughout this ARTICLE 5) as follows:

    5.1.        General Representations and Warranties . Seller hereby represents, warrants, and declares to and in favor of Buyer that:

        (a)        Organization . Seller is a national banking association and is in good standing under the laws of each state in which the Construction Lending Offices are located. Seller is appropriately qualified to do business in each jurisdiction in which Seller is required to be qualified to do business upon the operations of the Construction Lending Offices. Seller has all requisite power and authority to enter into, execute, and deliver this Agreement and to carry out the transactions contemplated herein.

        (b)        Authorization: No Conflict . The execution, delivery and performance of this Agreement by Seller have been duly authorized by all necessary corporate or other action of Seller. The performance by Seller of its obligations hereunder do not violate or conflict with (i) any applicable law or any applicable order, writ, injunction, decree, rule or regulation of any Governmental Authority or any provision of the Articles of Incorporation or Bylaws, as amended from time to time, of the Seller, or (ii) any agreement, contract, lease, license, Permit, grant, instrument, or other arrangement to which Seller is a party or to which any of the Acquired Assets is subject, which violation or conflict would have a material adverse effect on the ability of Seller to perform its obligations hereunder.

        (c)        Litigation . There is no action, suit, proceeding, or litigation pending, or, to the knowledge of the Seller, threatened against Seller before or by any Governmental Authority relating to the Construction Lending Offices, the Loans, or the ability of the Seller to enter into this Agreement.

        (d)        Binding Obligation . This Agreement constitutes the legal, valid, and binding obligations of Seller enforceable in accordance with its respective terms, except as such enforceability may be limited by any applicable bankruptcy, insolvency, reorganization, or other similar laws affecting creditors’ rights.

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        (e)        Brokers . Seller has not taken any action that would give rise to any claim against Buyer, the Loans or the Acquired Assets for a broker’s, finder’s, or investment banker’s fee or other like payment in connection with the transactions contemplated by this Agreement.

        (f)        No Liabilities . Seller has no liabilities or obligations for which the Buyer shall be, or may be, responsible for the payment, other than liabilities or obligations for the Assumed Liabilities specifically assumed by the Buyer pursuant to the terms and provisions of this Agreement.

        (g)        Employment Related Matters . Buyer shall, on or before the Closing Date, offer employment to the employees of the Construction Lending Offices on terms and provisions acceptable to Buyer with such employment, if acceptable to the respective employee, to commence effective immediately following the Closing. Except as set forth on Schedule 5.1(g) and to Seller’s Knowledge , no employee, or group of employees has any plans to terminate employment with the Seller prior to the Closing Date. To the Seller’s Knowledge, (i) the Seller has not committed any unfair labor practice in violation of any Governmental Authority relating to any of the Construction Lending Offices and (ii) no Proceeding exists or has been threatened in regard to any unfair labor practice in violation of any Governmental Authority relating to any Construction Lending Office. The Seller does not have any Knowledge of any organizational effort presently being made or threatened by or on behalf of any labor union with respect to employees of the Seller relating to any of the Construction Lending Offices.

        (h)        Nonpublic Personal Information . Seller has established and shall maintain administrative, technical, and physical safeguards to (i) insure the safety and confidentiality of Nonpublic Personal Information, (ii) protect against anticipated threats or hazards to the security or integrity of such information, (iii) protect against unauthorized access to or use of such information which could result in substantial harm or inconvenience to Buyer or any of the customers acquired from Seller pursuant to this Agreement, and (iv) comply with the provisions of the Act and all other related federal and state laws, as applicable, relating to the receipt and use of any Nonpublic Personal Information.

     5.2.         Representations and Warranties Concerning Acquired Assets .

        (a)        Personal Property .

                   (i)         Tangible Personal Property . The Seller owns and has all right, title, and interest in all Tangible Personal Property used in the conduct of Construction Lending Offices as presently conducted and as included in the Acquired Assets. Each such item of Tangible Personal Property is free and clear of any and all Liens, and Seller is the sole owner thereof with full right to sell and transfer the same to Buyer. Except as set forth herein, the Office Equipment and the Tangible Personal Property are being sold in “as is” condition.

                   (ii)        Intangible Property .

                              (1)        Each item of Intangible Property owned or used by the Seller immediately prior to the Closing hereunder, except for required third party approvals or consents, will be owned or available for use by the Buyer on identical terms and conditions immediately subsequent to the Closing hereunder.

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                              (2)        To the Seller’s Knowledge, the Seller has not interfered with, infringed upon, misappropriated, or otherwise come into conflict with any intellectual property rights of third parties, and the Seller has never received any charge, complaint, claim, demand, or notice alleging any such interference, infringement, misappropriation, or violation (including any claim that the Seller must license or refrain from using any intellectual property rights of any third party). To the Seller’s Knowledge, no third party has interfered with, infringed upon, misappropriated, or otherwise come into conflict with any intellectual property rights of the Seller with regard to the Intangible Property.

                              (3)        Schedule 1.1(c) identifies each license, agreement, or other permission which the Seller has granted to any third party with respect to any of its Intangible Property (together with any exceptions). With respect to each item of Intangible Property:

(A)         the Seller possesses all right, title, and interest in and to the item, free and clear of any Lien, license, or other restriction, except as described in Schedule 1.1(c) ;

(B)         the item is not subject to any outstanding injunction, judgment, order, decree, ruling, or charge;

(C)         no action, suit, hearing, investigation, charge, complaint, claim, demand or other Proceeding is pending or, to the Knowledge of the Seller, is threatened which challenges the legality, validity, enforceability, use, or ownership of the item; and

(D)         the Seller has not ever agreed to indemnify any Person for or against any interference, infringement, misappropriation, or other conflict with respect to the item.

        (b)         Contracts . To the Knowledge of Seller, no party is in breach or default of any Contract or repudiated or modified any of the terms thereof, and no event has occurred which with notice or lapse of time would constitute a breach or default,