EXHIBIT 2
ASSET PURCHASE AND LIABILITY ASSUMPTION AGREEMENT
-------------------------------------------------
This ASSET PURCHASE AND LIABILITY ASSUMPTION AGREEMENT (hereinafter
referred to as this "Agreement") is made effective as of the 9th day of
July, 2001, by and among The Sabina Bank, a bank incorporated under
the laws of the State of Ohio with its principal office located in Sabina,
Ohio (hereinafter referred to as "Seller"), and its holding company, Premier
Financial Bancorp, Inc., a corporation organized under the laws of the
Commonwealth of Kentucky and the sole shareholder of Seller (hereinafter
referred to as "Premier"); and The National Bank and Trust Company, a bank
organized under the laws of the United States with its principal office
located in Wilmington, Ohio (hereinafter referred to as "Buyer");
W I T N E S S E T H:
WHEREAS, Buyer is a national bank with offices located in the Ohio
counties of Clinton, Brown, Clermont, Highland and Warren;
WHEREAS, Seller is an Ohio bank with branches located in Sabina, Ada
and Waynesfield, Ohio;
WHEREAS, in accordance with the terms and subject to the conditions of
this Agreement, Buyer desires to assume from Seller, and Seller and Premier
desire for Seller to transfer to Buyer, all of the deposit and certain other
liabilities of Seller, and Buyer desires to purchase from Seller, and Seller
and Premier desire for Seller to sell to Buyer, certain assets of Seller;
NOW, THEREFORE, in consideration of the premises and the representations,
warranties and covenants hereinafter contained, Buyer, Seller and Premier,
intending to be legally bound, agree as follows:
ARTICLE ONE: PURCHASE AND ASSUMPTION
-------------------------------------
1.01. Purchase of Assets. Upon the terms and subject to the conditions
------------------
of this Agreement, on and as of the Closing Date (hereinafter defined),
Seller shall assign, sell, transfer, convey and deliver to Buyer, and Buyer
shall purchase and accept from Seller, all right, title and interest in and
to the following assets of Seller, free and clear of all liens, mortgages,
pledges, security interests and other encumbrances (hereinafter collectively
referred to as the "Assets"):
(a) The real estate, appurtenant easements and improvements thereon
from and at which Seller conducts business (other than real estate
leased by Seller solely for the operation of an automated teller
machine facility), the legal descriptions of which are contained in
Exhibit A to this Agreement (hereinafter referred to as the "Real
Estate"), together with all of Seller's right, title and interest
in and to the Real Estate;
(b) The real estate, appurtenant easements and improvements thereon
which were acquired by Seller as a result of foreclosure or by deed
in lieu of foreclosure and which are reflected on the books and
records of Seller as of the close of business on the Closing Date
(hereinafter referred to as the "OREO");
(c) All furniture, fixtures, equipment, other items of tangible
personal property and leasehold improvements, including those
described in Exhibit B to this Agreement (hereinafter referred to
as the "Fixed Assets");
(d) All securities and federal funds sold reflected on the books and
records of Seller as of the close of business on the Closing Date
(hereinafter referred to as the "Securities");
(e) All of the loans reflected on the books and records of Seller as of
the close of business on the Closing Date, except all loans charged
off in full and those loans described in Exhibit C to this
Agreement (the loans being transferred hereinafter referred to as
the "Loans");
(f) The safe deposit business of Seller reflected on the books and
records of Seller as of the close of business on the Closing Date
(hereinafter referred to as the "Safe Deposit Business");
(g) All cash and amounts due from banks reflected on the books and
records of Seller as of the close of business on the Closing Date
(hereinafter referred to as the "Closing Cash");
(h) The lease for the automated teller machine located at 000 Xxxx
Xxxxxxxxxx Xxxxxx, Xxxxxx, Xxxx, a copy of which is included in
the Seller Disclosure Schedule (hereinafter referred to as the
"ATM Lease");
(i) All records, files, books and papers (or copies thereof) relating
to the Assets and the Liabilities (hereinafter referred to as the
"Records");
(j) All Deposit Account (hereinafter defined) contracts (hereinafter
referred to as the "Contracts"); and
(k) Except as specifically otherwise provided in this Agreement or as
listed on Exhibit D to this Agreement, each and every other asset
of Seller related to or used in connection with the business of
Seller.
2
1.02. Assumption of Liabilities
-------------------------
(a) Upon the terms and subject to the conditions of this Agreement, on
and as of the Closing Date, Seller shall assign, transfer, convey
and deliver to Buyer, and Buyer shall assume and accept from
Seller, the obligations and liabilities of Seller accrued or
arising after the Closing Date under, in connection with or as a
result of only the following (hereinafter referred to as the
"Liabilities"):
(i) The Assets;
(ii) All deposit accounts and interest accrued thereon reflected
on the books and records of Seller at the close of business
on the Closing Date (hereinafter referred to as the "Deposit
Accounts");
(iii) All of the outstanding unremitted collections and book
overdrafts that are reflected on the books and records of
Seller as of the close of business on the Closing Date;
(iv) All borrowings reflected on the books and records of Seller
at the close of business on the Closing Date; and
(v) All other obligations of Seller specifically described on
Exhibit E to this Agreement (hereinafter referred to as the
"Other Obligations").
(b) Notwithstanding anything to the contrary in this Agreement or
otherwise, Buyer shall not assume and shall not honor, fully and
timely perform or discharge any debt, obligation or liability of
Seller, other than the Liabilities. All debts, obligations or
liabilities of Seller other than the Liabilities shall be paid and
discharged by Seller. The liabilities not being assumed shall
include, but not be limited to, those set forth in Exhibit F to
this Agreement.
1.03. Structure of Transaction. If required by applicable laws or
------------------------
regulations or deemed desirable by Buyer, Buyer shall form an interim banking
organization to effect the purchase of the Assets and the assumption of the
Liabilities, with Buyer immediately thereafter purchasing the Assets and
assuming the Liabilities from such interim organization.
3
1.04. Payment of Funds.
----------------
(a) In consideration and exchange for the purchase of the Assets and
the assumption of the Liabilities by Buyer, Buyer shall pay to
Seller at the Closing (hereinafter defined) in immediately
available federal funds the sum of
(i) 2.25 times
(ii) (A) the regulatory Tier I capital of Seller, less
(B) the sum of (I) the intangible assets of Seller, (II)
the prepaid expenses, including deferred SP Plan origination
cost, of Seller, and (III) (a) two percent of the gross
loans of Seller less (b) the amount of Seller's allowance
for loan losses.
The regulatory Tier I capital, intangible assets, prepaid expense,
gross loan and allowance for loan losses amounts are to be
determined as reflected on the books and records of the Seller as
of the most recent month end before the Closing Date.
(b) All real estate taxes and assessments that are a lien, but not yet
due and payable, shall be prorated between Seller and Buyer as of
the close of business on the Closing Date on the basis of the most
recently certified real estate taxes and assessments.
(c) Seller acknowledges and accepts the sole and exclusive
responsibility for payment of all conveyance fees due in respect
of the conveyance of the Real Estate and the OREO and for the
payment of any additions thereto.
1.05. Repurchase of Loans. At the Closing, Seller shall transfer to
-------------------
Buyer the loans described in Exhibit C, and Seller shall pay to Buyer in
immediately available funds an amount equal to the outstanding balance of
the loans described in Exhibit C that are held by Seller at Closing.
1.06. Delivery of Assets. At the Closing, Seller shall deliver the
Assets to Buyer.
ARTICLE TWO: REPRESENTATIONS AND WARRANTIES
--------------------------------------------
2.01. Representations and Warranties of Seller and Premier. Seller
----------------------------------------------------
and Premier jointly and severally represent and warrant as follows:
4
(a) Seller is a bank duly organized, validly existing and in good
standing under the laws of the State of Ohio and has the corporate
power and authority to own its properties, to carry on its business
as presently conducted and, subject to the receipt of any and all
necessary regulatory approvals and required consents, to consummate
the transactions contemplated by this Agreement. The authorized
capital stock of Seller consists of 110,000 shares of common stock,
par value $1.00 per share, 1,000 of which are issued and
outstanding and owned beneficially and of record by Premier.
Seller has no direct or indirect subsidiaries.
(b) The deposits of Seller are insured up to applicable limits by the
Bank Insurance Fund of the Federal Deposit Insurance Corporation
(hereinafter referred to as the "FDIC").
(c) The execution and delivery of this Agreement, and the consummation
of the transactions contemplated hereby, have been duly authorized
by all necessary corporate action on the part of Seller and
Premier. This Agreement is a valid and binding obligation of
Seller and Premier, enforceable against Seller and Premier in
accordance with its terms, subject to applicable bankruptcy,
insolvency, reorganization and moratorium laws and other laws of
general applicability affecting the enforcement of creditors'
rights generally and the effect of rules of law governing specific
performance, injunctive relief and other equitable remedies on the
enforceability of such documents.
(d) Subject to the receipt of any and all necessary regulatory
approvals and required consents, the execution, delivery and
performance of this Agreement by Seller and Premier, and the
consummation of the transactions contemplated hereby, will not
conflict with, result in the breach of or constitute a violation
or default under (i) any of the provisions of the Articles of
Incorporation, Code of Regulations or Bylaws of Seller or Premier,
(ii) any judgment, decree or order in respect of Seller or Premier,
(iii) any law, rule or regulation of any government or agency
thereof, or (iv) any material contract, material agreement or
material instrument to which Seller or Premier is subject, in
circumstances under which such conflict, breach, violation or
default would have a material adverse effect on the Assets or the
Liabilities or the ability of Seller or Premier to perform their
obligations under this Agreement.
(e) Except for the Real Estate and the OREO, Seller owns all right,
title and interest in and to the Assets, free and clear of any
mortgage, lien, encumbrance or restrictions of any kind or nature.
Seller is the owner of a fee simple interest in, and has good and
marketable title to, the Real Estate and the OREO, free and clear
of any mortgage, lien encumbrance or restriction of any kind or
nature, other than the Permitted Exceptions (hereinafter defined),
5
and will convey such Real Estate and the OREO to Buyer by the
delivery at the Closing Date of general warranty deeds conveying
such title, subject to the Permitted Exceptions. The term
"Permitted Exceptions" shall mean (i) those standard printed
exceptions appearing as Exhibit B items in a standard ALTA owners
title insurance policy; (ii) statutory liens for current taxes or
assessments not yet due or, if due, not yet delinquent; (iii) such
other liens, imperfections in title, charges, easements,
restrictions and encumbrances (but in all cases excluding those
which secure borrowed money) which, individually or in the
aggregate, do not materially detract from the value of, or
materially interfere with the present use of, any property subject
thereto or affected thereby; and (iv) such other exceptions as are
approved by Buyer in writing. Seller is not a party to any lease
of the Real Estate or the OREO to any other party.
(f) There are no uncorrected violations of zoning and/or building codes
relating to any of the Real Estate or the Oreo. Seller has not
received notice of any pending or threatened condemnation
proceeding affecting or relating to any of the Real Estate or OREO.
Neither Seller nor Premier has received notification from any
governmental entity within the two-year period immediately
preceding the date hereof of contemplated improvements to the Real
Estate or the OREO or surrounding area or community by public
authority, the costs of which are to be assessed as special taxes
against the Real Estate or the OREO in the future.
(g) The documentation (hereinafter referred to as the "Loan
Documentation") governing or relating to the Loans is legally
sufficient in all material respects for the purposes intended
thereby and creates enforceable rights in favor of Seller in
accordance with the terms of such Loan Documentation, subject to
applicable bankruptcy, insolvency, reorganization and moratorium
laws and other laws of general applicability affecting the
enforcement of creditors' rights generally, and the effect of rules
of law governing specific performance, injunctive relief and other
equitable remedies on the enforceability of such documents. The
Loan Documentation is in compliance in all material respects with,
and each of the loans included within the loan portfolio of Seller
has been processed, closed and administered in conformance with,
all applicable federal consumer protection statutes and
regulations, including, without limitation, the Truth in Lending
Act, the Equal Credit Opportunity Act and the Real Estate
Settlement Procedures Act. To the best knowledge of Seller, no
debtor under any of the Loan Documentation has asserted any claim
or defense with respect to the subject matter thereof. The Loan
Documentation will be deemed to satisfy the representations and
warranties contained in this Section 2.01(g) if the representations
and warranties are true with respect to the Loan Documentation for
loans constituting ninety-nine percent (99%) of the gross loan
amount of Seller.
6
(h) Section 2.01(h) of the Seller Disclosure Schedule contains a
complete list of all contracts (hereinafter referred to as the
"Loan Sale Contracts") pursuant to which Seller has sold loans to
third-party investors at any time within the last twenty-four
months. Except as otherwise set forth in Section 2.01(h) of the
Seller Disclosure Schedule, (i) no purchaser under any Loan Sale
Contract has requested, or notified either Seller or Premier that
it may be requesting, that either Seller or Premier repurchase any
loan pursuant to the terms of the Loan Sale Contract and (ii) to
Seller's knowledge, no facts exist that would require Seller to
repurchase any loans previously sold under any Loan Sale Contract.
(i) Except as set forth in Section 2.01(i) of the Seller Disclosure
Schedule, the Securities are owned by Seller, free and clear of all
liens, pledges, claims, security interests, encumbrances, charges
or restrictions of any kind and may be freely disposed of by Seller
at any time. Except as set forth in Section 2.01(i) of the Seller
Disclosure Schedule, Seller is not a party to nor has any interest
in any repurchase agreement, reverse repurchase agreement,
collateralized mortgage obligation or any other derivative
security.
(j) No tax liens have been filed against or otherwise attached to any
of the Assets.
(k) Seller has not entered into any written employment agreements with
any of its employees.
(l) Except as set forth in Section 2.01(l) of the Seller Disclosure
Schedule, (i) each of Seller and the Seller Property (hereinafter
defined) is, and has been at all times, in material compliance with
all applicable Environmental Laws (hereinafter defined); (ii) no
investigations, inquiries, orders, hearings, actions or other
proceedings by or before any court or governmental agency have been
issued, are pending or, to the knowledge of Seller, threatened
against Seller or in connection with the Seller Property; (iii) no
claims have been made or, to the knowledge of Seller, threatened at
any time against Seller or in connection with the Seller Property
relating to actual or alleged violation of any Environmental Law or
relating to damage, contribution, cost recovery, compensation, loss
or injury resulting from any Hazardous Substance (hereinafter
defined) and no past or present actions, activities, conditions,
events or incidents, including, without limitation, the release,
emission, discharge or disposal of, or exposure to, any Hazardous
Substance have occurred that could reasonably form the basis of any
such claims against Seller or in connection with the Seller
Property; (iv) no Hazardous Substances have been integrated into
any Seller Property or any component thereof in violation of
Environmental Laws, or which will in the future require remediation
during renovation or demolition, or in such quantities and manner
as may or do pose a threat to human health; (v) no portion of any
7
Seller Property is located within 2000 feet of (A) a release of
Hazardous Substances which has been reported or is required to be
reported under any Environmental Law or (B) the location of any
site used, in the past or presently, for the disposal of any
Hazardous Substances; (vi) the Seller Property has not been used
for the storage, disposal or treatment of Hazardous Substances,
has not been contaminated by Hazardous Substances, nor has been
used for the storage or use of any underground or aboveground
storage tanks; and (vii) material permits, registrations and other
authorizations necessary for Seller or the Seller Property to
operate in material compliance with all Environmental Laws are
currently in force and are identified in Section 2.01(l) of the
Seller Disclosure Schedule.
Section 2.01(l) of the Seller Disclosure Schedule sets forth an
accurate and complete list of all outstanding loans of Seller as
to which the borrower has submitted to either Seller or Premier,
the borrower or another person is required to submit, or which
either Seller or Premier otherwise has in its possession, any
environmental audits, site assessments, analyses, studies or
surveys of environmental conditions on any matter. Seller has
made available to Buyer all such documents.
As used in this Section 2.01(l):
(I) "Seller Property" means all real and personal property now
or previously owned, leased, occupied or managed by Seller
or any person or entity whose liability for any matter has
or may have been related or assumed by Seller either
contractually or by operation of law.
(II) "Environmental Laws" means all federal, state, local and
other laws, regulations, rules, standards, ordinances,
orders, decrees, and judgments relating to pollution, the
environment, Hazardous Substances, occupational health and
safety, or the protection of human health, all as may be
from time to time amended, and all guidance, requirements
and authorizations resulting therefrom.
(III) "Hazardous Substances" means any and all substances or
materials which are classified or considered to be hazardous
or toxic to human health or the environment under any
applicable Environmental Laws and shall include, without
limitation, any "hazardous substances" as defined in Section
101(14) of CERCLA (42 USC Section 9601(14)) or regulations
promulgated thereunder, "solid waste," "hazardous waste," or
"infectious waste" as such terms are defined in any
Environmental Law, any "toxic and hazardous substances" as
defined in 29 CFR Part 1910, petroleum and its products and
8
byproducts, asbestos, polychlorinated biphenyls, nuclear
fuel or materials, radioactive material, lead and lead-
containing substances, and urea-formaldehyde.
(m) Seller is not a party to any pending or known threatened litigation
or governmental proceeding or inquiry of any nature; Seller is not
subject to any order, judgment, decree, stipulation or consent or
agreement with any governmental body or agency to which it is or
was a party and does not conduct its business in violation of any
applicable law, ordinance, rule or regulation.
(n) Except as set forth in the Seller Disclosure Schedule, neither
Seller nor Premier has retained any brokers, finders or other
similar selling agents and is not obligated to pay the fees or
commissions of any such person in connection with the transactions
contemplated by the Agreement.
(o) Premier is a corporation duly organized, validly existing and in
good standing under the laws of the Commonwealth of Kentucky and
has the corporate power and authority to own its properties, to
carry on its business as presently conducted and, subject to the
receipt of any and all necessary regulatory approvals and required
consents, to consummate the transactions contemplated by this
Agreement.
(p) The Call Reports of Seller for the quarters ended March 31, 2001,
December 31, September 30, and June 30, 2000, together with the
schedules and supplements attached thereto, each as filed with
the Federal Reserve Bank of Cleveland (hereinafter referred to as
the "Federal Reserve") and copies of which were previously
delivered to Buyer by Seller (hereinafter referred to as the "Call
Reports"), have been prepared in accordance with accounting
practices permitted by the Federal Reserve applied on a consistent
basis, are true, complete and correct in all material respects and
fairly present the financial position of Seller at such dates.
(q) There has not been any material adverse change in the business,
operations, assets or financial condition of Seller since December
31, 2000, other than: (i) expenses incurred in connection with the
transactions contemplated hereby; or (ii) actions or omissions of a
party (or any of its subsidiaries) taken with the prior informed
written consent of the other party or parties in contemplation of
the transactions contemplated hereby. To the knowledge of Seller
and Premier, no fact or condition exists which will cause such a
material adverse change in the future.
(r) Except to the extent permitted extensions have been filed, each of
Seller or Premier, or the affiliated, combined or unitary group
(within the meaning of applicable federal income tax law) of which
any such corporation is or was a member, as the case may be
(hereinafter referred to individually as an "Affiliate" and
9
collectively as "Affiliates"), has duly filed (and until the
Effective Time will so file) all returns, declarations, reports,
information returns and statements (hereinafter referred to as the
"Returns") required to be filed or sent by or with respect to
Seller in respect of any Taxes (hereinafter defined), and has duly
paid (and until the Effective Time will so pay) all Taxes due and
payable by or on behalf of Seller. No deficiencies have been
asserted by the Internal Revenue Service or the State of Ohio with
respect to Seller or for which Seller may be held liable and which
have not been resolved and paid in full. There are no audits or
other administrative or court proceedings presently pending nor any
other disputes pending, or claims asserted for, Taxes or
assessments upon Seller, nor has Seller given any currently
outstanding waivers or comparable consents regarding the
application of the statute of limitations with respect to any Taxes
or Returns.
Seller (i) has not requested any extension of time within which to
file any Return which Return has not since been filed, (ii) is not
a party to any agreement providing for the allocation or sharing of
Taxes, (iii) is not required to include in income any adjustment
pursuant to Section 481(a) of the Internal Revenue Code of 1986, as
amended (hereinafter referred to as the "Code"), by reason of a
voluntary change in accounting method initiated by Seller (nor does
Seller have any knowledge that the IRS has proposed any such
adjustment or change of accounting method), and (iv) has not filed
a consent pursuant to Section 341(f) of the Code or agreed to have
Section 341 (f)(2) of the Code apply.
For purposes of this Agreement, "Taxes" shall mean all taxes,
charges, fees, levies or other assessments, including, without
limitation, all net income, gross income, gross receipts, sales,
use, ad valorem, transfer, franchise, profits, license,
withholding, payroll, employment (including withholding, payroll
and employment taxes required to be withheld with respect to income
paid to employees), excise, estimated, severance, stamp,
occupation, property or other taxes, customs duties, fees,
assessments or charges of any kind whatsoever, together with any
interest and any penalties, additions to tax or additional amounts
imposed by any taxing authority (domestic or foreign) upon Seller.
(s) Except as disclosed in Seller Disclosure Schedule Section 2.01(s),
Seller is not a party to, does not receive and is not obligated to
pay benefits under, (i) any agreement, arrangement, commitment,
indenture or other instrument relating to the borrowing of money
by Seller or the guarantee by Seller of any obligation, (ii) any
agreement, arrangement or commitment relating to the employment of
a consultant or the employment, election or retention in office of
any present or former director or officer of Seller, (iii) any
contract, agreement or understanding with a labor union, (iv) any
10
agreement, arrangement or understanding pursuant to which any
payment (whether of severance pay or otherwise) became or may
become due to any director, officer or employee of Seller upon
execution of this Agreement or upon or following consummation of
the transactions contemplated by this Agreement (either alone or in
connection with the occurrence of any additional acts or events),
(v) any agreement, arrangement or understanding to which Seller is
a party which limits the freedom of Seller to compete in any line
of business or with any person, (vi) any assistance agreement,
supervisory agreement, memorandum of understanding, consent order,
cease and desist order or condition of any regulatory order or
decree with or by the Board of Governors of the Federal Reserve,
the Superintendent of the Ohio Division of Financial Institutions,
the FDIC or any other regulatory agency, or (vii) any other
agreement, arrangement or understanding to which Seller is a party
and which is material to the business, operations, assets or
financial condition of Seller taken as a whole (excluding loan
agreements or agreements relating to deposit accounts), in each
of the foregoing cases whether written or oral.
Seller is not in default or in non-compliance, which default or
non-compliance would have a material adverse effect on the
business, operations, assets or financial condition of Seller or
the transactions contemplated hereby, under any contract,
agreement, commitment, arrangement, lease, insurance policy or
other instrument to which it is a party, whether entered into in
the ordinary course of business or otherwise and whether written
or oral, and there has not occurred any event that with the lapse
of time or the giving of notice, or both, would constitute such a
default or non-compliance.
(t) All real and material personal property owned by Seller or
presently used by Seller in its business is in an adequate
condition (ordinary wear and tear excepted) and is sufficient to
carry on the business of Seller in the ordinary course of business
consistent with its past practice. Seller has good and, as to
owned real property, marketable title to all of the Assets, subject
to no encumbrances, liens, mortgages, security interests or
pledges, except (i) those items that secure liabilities that are
reflected in said consolidated statement of financial condition or
the notes thereto or have been incurred in the ordinary course of
business after the date of such consolidated statement of financial
condition, (ii) statutory liens for amounts not yet delinquent or
which are being contested in good faith, (iii) such encumbrances,
liens, mortgages, security interest, pledges and title
imperfections that are not in the aggregate material to the
business, operations, assets or financial condition of Seller, and
(iv) with respect to owned real property, title imperfections noted
in title reports prior to the date hereof. Seller is not a party
to any lease of real property, other than the ATM Lease, or a party
11
to any lease of personal property material to the business or
financial condition of Seller.
(u) The business operations and all insurable properties and assets of
Seller are insured for their benefit against all risks which, in
the reasonable judgment of the management of Seller, should be
insured against, in each case under valid, binding and enforceable
policies or bonds issued by insurers of recognized responsibility,
in such amounts with such deductibles and against such risks and
losses as are in the opinion of the management of Seller adequate
for the business engaged in by Seller. As of the date hereof,
Seller has not received any notice of cancellation or notice of a
material amendment of any such insurance policy or bond or is in
default under such policy or bond, no coverage thereunder is being
disputed and all material claims thereunder have been filed in a
timely fashion.
(v) Seller has delivered to Buyer true and accurate copies of the
Articles of Incorporation and Code of Regulations of Seller and has
granted to Buyer access to all records of all meetings and other
corporate actions by the shareholder, the Board of Directors and
Committees of the Board of Directors of Seller. Since January 1,
1998, the minute books of Seller contain in all material respects
complete and accurate records of all meetings and other corporate
action held or taken by its Board of Directors (including
committees of its Board of Directors) and shareholder.
(w) No representation or warranty contained in Section 2.01 of this
Agreement contains any untrue statement of a material fact or omits
to state a material fact necessary in order to make the statements
herein or therein not misleading.
2.02. Representations and Warranties of Buyer. Buyer represents and
---------------------------------------
warrants to Seller as follows:
(a) Buyer is a national banking association duly organized, validly
existing and in good standing under the laws of the United States
and has the full corporate power and authority to owns its
properties, to carry on its business as presently conducted and
to consummate the transactions contemplated by this Agreement.
(b) The deposits of Buyer are insured up to applicable limits by the
Bank Insurance Fund of the FDIC, except for those deposits acquired
from a savings association and which are insured up to applicable
limits by the Savings Association Insurance Fund of the FDIC.
(c) The execution and delivery of this Agreement, and the consummation
of the transactions contemplated hereby, have been duly authorized
by all necessary corporate action on the part of Buyer. This
Agreement is a valid and binding obligation of Buyer, enforceable
12
against Buyer in accordance with its terms, subject to applicable
bankruptcy, insolvency, reorganization and moratorium laws and
other laws of general applicability affecting the enforcement of
creditors' rights generally and the effect of rules of law
governing specific performance, injunctive relief and other
equitable remedies on the enforceability of such documents.
(d) Subject to the receipt of any and all necessary regulatory
approvals, the execution, delivery and performance of this
Agreement by Buyer, and the consummation of the transactions
contemplated hereby, will not conflict with or result in the
breach of, or constitute a violation or default under (i) any of
the provisions of the Amended Articles of Association or Bylaws
of Buyer, (ii) any judgment, decree or order in respect of Buyer,
(iii) any law, rule or regulation of any government or agency
thereof, or (iv) any material agreement, material contract or
material instrument to which Buyer is subject, in circumstances
under which such conflict, breach, violation or default would have
a material adverse effect on the ability of Buyer to perform its
obligations under this Agreement.
(e) Buyer is not a party to any pending or known threatened litigation
or governmental proceeding or inquiry of any nature; Buyer is not
subject to any order, judgment, decree, stipulation or consent or
agreement with any governmental body or agency to which it is or
was a party; and to the best of its knowledge, its conduct of its
business does not violate any applicable law, ordinance, rule or
regulation.
(f) No representation or warranty contained in Section 2.02 of this
Agreement contains any untrue statement of a material fact or omits
to state a material fact necessary in order to make the statements
herein or therein not misleading.
ARTICLE THREE: CONDUCT OF THE PARTIES BEFORE THE CLOSING
---------------------------------------------------------
3.01. Covenants of Seller. Seller hereby covenants to Buyer that, from
-------------------
the date hereof until the Closing Date, Seller will do the following or cause
the following to occur:
(a) Seller will operate its business in the ordinary course of business
and in a manner that is consistent with the manner of operation
that Seller has historically employed before the date of this
Agreement. Without limiting the generality of the foregoing
sentence:
13
(i) All of the loans that are originated by Seller after the
date of this Agreement shall be made in accordance with the
underwriting standards in effect on the date of this
Agreement and at interest rates established from time to
time by Seller pursuant to methods in effect on the date of
this Agreement; and
(ii) Seller (A) may adjust the wages of employees paid on the
basis of an hourly wage only in accordance with the standard
procedures of Seller for performance reviews and wage
adjustments in effect on the date of this Agreement and (B)
may not, without the prior approval of Buyer, increase the
salary of any employee paid on the basis of an annual salary
by more than an amount equal to 5% of the regular annual
salary of any such employee for the calendar year ending
December 31, 2000.
(b) Seller shall permit Buyer and its representatives, and Buyer shall
permit Seller and its representatives, reasonable access to their
respective properties and those of their subsidiaries, and shall
disclose and make available to Buyer all books, papers and records
relating to the assets, properties, operations, obligations and
liabilities, including, but not limited to, all books of account
(including the general ledger), tax records, minute books of
directors' and stockholders' meetings, organizational documents,
bylaws, material contracts and agreements, filings with any
regulatory authority, accountants' work papers, litigation files
(except as necessary to preserve attorney-client privilege), plans
affecting employees, and any other business activities or prospects
in which each party may have a reasonable interest. Such access
includes cooperation by Seller in Buyer's environmental testing and
examination of the Real Estate and the OREO. Neither party shall
be required to provide access to or to disclose information where
such access or disclosure would violate or prejudice the rights of
any customer or would contravene any law, rule, regulation, order
or judgment. Seller will use its best efforts to obtain waivers of
any such restriction and in any event make appropriate substitute
disclosure arrangements under circumstances in which the
restrictions of the preceding sentence apply. Each party shall
make their respective directors, officers, employees and agents and
authorized representatives (including counsel and independent
public accountants) available to confer with the other party and
its representatives, provided that such access shall be reasonably
related to the transactions contemplated hereby and not unduly
interfere with normal operations.
(c) All information furnished by Seller to Buyer in accordance with
paragraph (b) of this Section 3.01 or otherwise will be treated as
the sole property of Seller until the Closing. In the event of the
termination of this Agreement in accordance with the terms hereof,
Buyer will return to Seller all documents or other materials
14
containing, reflecting, referring to or prepared on the basis of
such information, will keep confidential and will not disclose all
such information and will not directly or indirectly use such
information for any competitive or other commercial purpose.
(d) Seller will not create or allow any liens, imperfections in title,
charges, easements, restrictions or encumbrances in respect of the
Real Estate or the OREO, other than the Permitted Exceptions
(e) In the event that Seller is notified of any pending or threatened
condemnation proceeding relating to any of the Real Estate or the
OREO, Seller will notify Buyer of such proceeding and Seller and
Buyer will cooperate in responding to any such proceeding in a
manner by which the rights of Seller and Buyer to recover in such
proceedings will not be prejudiced.
(f) For each Asset for which casualty insurance is historically
maintained by Seller, Seller will maintain such insurance. In the
event of any damage, destruction or condemnation affecting the
Assets between the date hereof and the Closing Date, Seller will
deliver to Buyer at the Closing the insurance or condemnation
proceeds received by Seller, if any, as a result thereof, plus the
amount of any deduction from such proceeds under the policies of
insurance related thereto, in any, and duly and validly assign to
Buyer all of Seller's rights and claims against any third parties
by reason of such damage, destruction or condemnation; provided,
however, that Seller will have no obligation to deliver, and Buyer
will have no right to receive, such proceeds in the event Seller
shall have previously repaired or replaced the damaged or destroyed
Assets.
(g) In the event that the assignment of any one of the Contracts or the
ATM Lease requires the prior consent of any party to any such
Contract or the ATM Lease, Seller will use commercially reasonable
efforts to obtain such consent.
(h) Seller will prepare and submit for filing the applications, filings
and registration with, and notifications to, all federal and state
authorities required on the part of Seller or any shareholder or
affiliate of Seller for the transactions contemplated by this
Agreement to be consummated on the Closing Date; provided, however,
that before making any such filings, Seller will (i) notify Buyer
of such filings; (ii) afford Buyer an opportunity to review such
portions of each filing which related to or otherwise discuss
information concerning Buyer; and (iii) cooperate with Buyer for
the purpose of making any revisions to such filing that Buyer, in
good faith, believes are necessary in order to portray with
accuracy information concerning Buyer. After such filings, Seller
will (I) pursue all such applications, filings, registrations and
notifications diligently and in good faith; (II) file such
supplements, amendments and additional information in connection
15
therewith as may be reasonably necessary for the transactions
contemplated by this Agreement to be consummated on the Closing
Date; (III) deliver to Buyer evidence of the filing of each and all
of such applications, filings, registrations and notifications
(except for any confidential portions thereof), and any supplement,
amendment or item of additional information in connection therewith
(except for any confidential portions thereof); (IV) deliver to
Buyer a copy of each material notice, order, opinion and other item
of correspondence received by Seller from such federal and state
authorities (except for any confidential portions thereof); and (V)
advise Buyer, at Buyer's request, of developments and progress with
respect to such matters
(i) Seller shall (I) preserve intact the business organization of
Seller as such organization existed on the date of this Agreement,
(II) retain the present services of the Seller's Employees and
(III) maintain the good will of depositors and other customers of
Seller.
(j) Seller shall not, unless approved in writing by Buyer:
(i) change any provision of the Articles of Incorporation or
other governing instrument, Code of Regulations or Bylaws of
Seller;
(ii) change the number of shares of its authorized or issued
capital stock or issue or grant any option, warrant, call,
commitment, subscription, award, right to purchase or
agreement of any character relating to the authorized or
issued capital stock of Seller, or any securities
convertible into shares of such capital stock, or split,
combine or reclassify any shares of its capital stock, or
redeem or otherwise acquire any shares of such capital
stock;
(iii) enter into any employment contract with any of its
employees; enter into or modify (except as may be required
by applicable law) any pension, retirement, stock option,
stock purchase, stock grant, stock appreciation right,
savings, profit sharing, deferred compensation, consulting,
bonus, group insurance or other employee benefit, incentive
or welfare contract, plan or arrangement, or any trust
agreement related thereto, in respect of any of its
directors, officers or employees; or make any contributions
to any defined contribution plan or any defined benefit
pension or retirement plan other than in the ordinary course
of business consistent with past practice;
(iv) sell or dispose of any significant assets or incur any
significant liabilities other than in the ordinary course of
business consistent with past practices and policies or
16
acquire in any manner whatsoever (other than to realize upon
collateral for a defaulted loan) any business or entity
(v) make any capital expenditures in excess of $5,000 in the
aggregate, other than pursuant to binding commitments
existing on the date hereof and other than expenditures
necessary to maintain existing assets in good repair;
(vi) make any material change in its accounting methods or
practices, other than changes required by generally accepted
accounting principles, or change any of its methods of
reporting income and deductions for federal income tax
purposes, except as required by changes in laws or
regulations;
(vii) change its lending, investment, deposit or asset and
liability management or other banking policies in any
material respect except as may be required by applicable
law;
(viii) enter into any futures contract, option or other agreement
or take any other action for purposes of hedging the
exposure of its interest-earning assets and interest-bearing
liabilities to changes in market rates of interest
(ix) make or commit to make any loan(s) (including unfunded
commitments and lines of credit) to any one person or entity
(together with "affiliates" of such person or entity) in
excess of $100,000 in the aggregate or in excess of a 80%
loan-to-value ratio, except loans to which Seller had made a
commitment as of January 18, 2001;
(x) waive any rights of material value or cancel any material
debts or claims
(xi) acquire any stock or other equity interest in any
corporation, partnership, trust, joint venture or other
entity, other than through foreclosure proceedings;
(xii) purchase any brokered loans;
(xiii) take any action that would result in any of its
representations and warranties contained in Article II of
this Agreement not being true and correct in any material
respect on the Closing Date; or
(xiv) agree to do any of the foregoing.
17
(k) Neither Seller nor Premier shall, nor shall Seller or Premier
authorize or permit any of its directors, officers or employees or
any investment banker, financial advisor, attorney, accountant or
other representative of Seller or Premier to, directly or
indirectly, encourage or solicit or hold discussions or
negotiations with, or provide any information to, any person,
entity or group (other than Buyer) concerning any merger, sale of
substantial assets or liabilities not in the ordinary course of
business, sale of shares of capital stock or similar transactions
involving Seller (an "Acquisition Transaction"). Seller will
provide immediate written notice to Buyer of any proposal that it
may receive in respect of any such Acquisition Transaction.
(l) Seller hereby authorizes Buyer to take all action necessary or
appropriate to negotiate prior to the Closing Date for the sale by
Buyer of the branches of Seller located in Ada, Ohio, and
Waynesfield, Ohio, on or after the Closing Date. Seller shall
permit access to its books and records by prospective purchasers as
reasonably necessary for Buyer to negotiate and close such a sale
of the branches on or after the Closing Date.
(m) Seller hereby agrees to engage, at the expense of Seller, a
qualified consultant, mutually agreeable to Seller and Buyer, to
conduct a Phase I Environmental Site Assessment in accordance with
the requirements of ASTM E1527-00 "Standard Practice for
Environmental Site Assessments: Phase I Environmental Site
Assessment Practice" ("Phase I") of each parcel of Real Estate and
OREO. Each Phase I shall also include an investigation of
potential asbestos-containing material, including testing if
appropriate, resulting in determination whether or not each such
property contains asbestos (including amounts, locations and
conditions thereof) and is in compliance with the applicable
standards of the U.S. Occupational Safety and Health Administration
found in 29 C.F.R. concerning asbestos, including communication of
hazards to employees. A copy of the Phase I report for each
property shall be delivered by Seller to Buyer promptly upon
receipt by Buyer.
3.01. Covenants of Buyer. Buyer hereby covenants to Seller that from the
------------------
date hereof until the Closing Date, Buyer will do the following or cause the
following to occur:
(a) If required by applicable laws or regulations or deemed desirable
by Buyer, Buyer shall form an interim banking organization to
effect the purchase of the Assets and the assumption of the
Liabilities, with Buyer immediately thereafter purchasing the
Assets and assuming the Liabilities from such interim organization
18
(b) Buyer will prepare and submit for filing the applications, filings
and registrations with, and notifications to, all federal and state
authorities required on the part of Buyer or any shareholder or
affiliate of Buyer for the transactions contemplated by this
Agreement to be consummated on the Closing Date and for the
operation of the business of Seller after the closing date by
Buyer; provided, however, that before making any such filings,
Buyer will (i) notify Seller of such filings; (ii) afford Seller an
opportunity to review such portions of each such filing which
relate to or otherwise discuss the information concerning Seller or
the operation of Seller's business; and (iii) cooperate with Seller
for the purpose of making any revisions to each such filing which
Seller, in good faith, believes are necessary in order to portray
with accuracy the information concerning Seller or the operation of
Seller's business. After such filings, Buyer will (I) pursue all
such applications, filings, registrations and notifications
diligently and in good faith; (II) file such supplements,
amendments and additional information in connection therewith as
may be reasonably necessary for the transactions contemplated
by this Agreement to be consummated on the Closing Date and for the
operation of the business of Seller after the Closing Date; (III)
deliver applications, filings, registrations and notifications
(except for any confidential portions thereof), and any supplement,
amendment or item of additional information in connection therewith
(except for any confidential portions thereof); (IV) deliver to
Seller a copy of each material notice, order, opinion and other
item of correspondence received by Buyer from such federal and sate
authorities (except for any confidential portions thereof); and (V)
advise Seller, at Seller's request, of developments and progress
with respect to such matters.
(c) In the event that the assignment of any one of the Contracts or the
ATM Lease requires the prior consent of any party to any such
Contract or the ATM Lease, Buyer will use commercially reasonable
efforts to obtain such consent.
3.03. Covenants of Seller and Buyer.
-----------------------------
(a) Seller hereby covenants to Buyer, and Buyer hereby covenants to
Seller, that, from the date hereof until the earlier of the Closing
Date or the termination of this Agreement in accordance with the
terms hereof, each party will cooperate fully with the other party
in attempting to obtain all consents, approvals, permits or
authorizations that are required to be obtained pursuant to any
federal or state law, or any federal or state regulation
thereunder, for or in connection with the consummation of the
transactions described and contemplated by this Agreement
19
(b) Seller and Buyer shall prepare, execute and file Internal Revenue
Service Form 8594 for the purpose of allocating the funds paid in
accordance with Section 1.04 of this Agreement among the Assets and
Liabilities, including, but not limited to, the Core Deposit
Intangible.
ARTICLE FOUR: COVENANTS RELATED TO EMPLOYEES
---------------------------------------------
4.01. Covenants of Buyer. Buyer covenants to Seller that Buyer will do
------------------
the following or cause the following to occur:
(a) In the event that any employee of Seller is not offered employment
by Buyer effective at the Closing Date and such employee has been
employed by Seller for at least one year, Buyer shall pay to such
employee a lump sum severance payment in an amount equal to one
week's Regular Weekly Salary for such employee for each year such
employee has been employed by Seller, with each employee who has
been employed by Seller for at least one year being entitled to
a minimum of twelve weeks' Regular Weekly Salary. "Regular Weekly
Salary" is herein defined, (i) for employees paid on the basis of
an annual salary, as the quotient of the employee's annual base
salary at Seller (excluding commissions, bonuses and overtime
payments) divided by 52; and (ii) for employees paid on the basis
of an hourly wage, the quotient of the total wages paid to such
employee by Seller (excluding commissions, bonuses and overtime
payments) during the three-month period immediately before the
Closing Date divided by 13.
(b) All employees of Seller who become employees of Buyer immediately
following the Closing will be covered by the employee benefit
plans of Buyer on substantially the same basis as any employee of
Buyer in a comparable position. Except as prohibited by law,
Seller's employees' service with the Seller shall be recognized as
service with Buyer for purposes of eligibility to participate and
vesting, if applicable (but not for purposes of benefit accrual)
under Buyer's benefit plans, subject to applicable break-in-
service rules. Buyer agrees that any pre-existing condition,
limitation or exclusion in its medical, long-term disability and
life insurance plans shall not apply to Seller's employees or
their covered dependents who are covered under a medical or
hospitalization indemnity plan maintained by Seller on the closing
date and who then change coverage to Buyer's medical or
hospitalization indemnity health plan at the time such employees
are first given the option to enroll.
(c) The obligations of Buyer under this Section 4.01 shall survive the
Closing.
20
4.02. Covenants of Seller and Premier. Seller and Premier covenant to
-------------------------------
Buyer that Seller and Premier will do the following or cause the following to
occur:
(a) Except with the written consent of Buyer, none of Seller, Premier
or any other subsidiary of Premier shall solicit the interest of
any employee of Seller in employment by Seller, Premier or any
other subsidiary of Premier while any such employee is in the
employment of Buyer.
(b) Seller and Premier shall continue their employee benefit programs
in full force and effect as benefit programs for Seller's employees
through the Closing Date.
(c) The obligations of Seller and Premier under this Section 4.02 shall
survive the Closing.
ARTICLE FIVE: CONDITIONS PRECEDENT TO CLOSING
----------------------------------------------
5.01. Conditions to Seller's Obligations. The obligation of Seller to
---------------------------------- consummate the transactions
contemplated by this Agreement is subject to the satisfaction, or the waiver
in writing by Seller to the extent permitted by applicable law, of the
following conditions at or before the Closing:
(a) Buyer has formed any interim financial institution required by any
applicable law or regulation in order to effect the transactions
contemplated by this Agreement.
(b) All approvals and authorizations of all federal and state
authorities required for the consummation of the transactions
contemplated by this Agreement shall have been received and shall
be in full force and effect, and all applicable waiting periods
shall have passed.
(c) A certified copy of an action of the Board of Directors of Buyer
approving and adopting this Agreement and authorizing the
transactions contemplated by this Agreement shall have been
delivered to Seller.
(d) The representations and warranties of Buyer set forth in this
Agreement shall be true and correct in all material respects on the
Closing Date with the same effect as though all of such
representations and warranties had been made on and as of the
Closing Date.
(e) Buyer shall have performed or complied with all agreements,
covenants and conditions required by this Agreement to be performed
or complied with by them before or on the Closing Date.
21
f) Buyer shall have taken all action required by this Agreement to be
taken by it before or on the Closing Date.
(g) No order, judgment or decree shall be outstanding against a party
hereto or a third party that would have the effect of preventing
completion of the transactions contemplated by this Agreement; no
suit, action or other proceeding shall be pending or threatened by
any governmental body in which it is sought to restrain or prohibit
the transactions contemplated by this Agreement; and no suit,
action or other proceeding shall be pending before any court or
governmental agency in which it is sought to restrain or prohibit
the transactions contemplated by this Agreement or obtain other
substantial monetary or other relief against one or more of the
parties hereto in connection with this Agreement and which Buyer
and Seller determine in good faith, based upon the advice of their
respective counsel, makes it inadvisable to proceed with the
transactions contemplated by this Agreement because any such suit,
action or proceeding has a significant potential to be resolved in
such a way as to deprive the party electing not to proceed of any
of the material benefits to it of this Agreement;
(h) Buyer shall have delivered to Seller a certificate dated the
Closing Date and signed by the President to the effect set forth in
paragraphs (a), (b), (c), (d), (e), (f) and (g) of this Section
5.01.
(i) All required consents to the assignment of the Contracts and the
ATM Lease shall have been obtained.
5.02. Conditions to Buyer's Obligations. The obligation of Buyer to
--------------------------------- consummate the transactions
contemplated by this Agreement is subject to the satisfaction, or the waiver
in writing by Buyer to the extent permitted by applicable law, of the
following conditions at or before the Closing:
(a) All approvals and authorizations of all federal and state
authorities required for consummation of the transactions
contemplated by this Agreement shall have been received and shall
be in full force and effect, and all applicable waiting periods
shall have passed.
(b) A certified copy of actions by the Board of Directors of Seller,
the Board of Directors of Premier and Premier as sole shareholder
of Seller approving and adopting this Agreement and authorizing the
transactions contemplated by this Agreement shall have been
delivered to Buyer.
(c) The representations and warranties of Seller and Premier set forth
in this Agreement shall be true and correct in all material
respects on the Closing Date with the same effect as though all of
such representations and warranties had been made on and as of the
Closing Date.
22
(d) Seller shall have performed or complied with all agreements,
covenants and conditions required by this Agreement to be performed
or complied with by Seller before or on the Closing Date
(e) Seller shall have taken all action required by this Agreement to be
taken by Seller before or on the Closing Date.
(f) No order, judgment or decree shall be outstanding against a party
hereto or a third party that would have the effect of preventing
completion of the transactions contemplated by this Agreement; no
suit, action or other proceeding shall be pending or threatened
by any governmental body in which it is sought to restrain or
prohibit the transactions contemplated by this Agreement; and no
suit, action or other proceeding shall be pending before any court
or governmental agency in which it is sought to restrain or
prohibit the transactions contemplated by this Agreement or obtain
other substantial monetary or other relief against one or more of
the parties hereto in connection with this Agreement and which
Buyer and Seller determine in good faith, based upon the advice of
their respective counsel, makes it inadvisable to proceed with the
transactions contemplated by this Agreement because any such suit,
action or proceeding has a significant potential to be resolved in
such a way as to deprive the party electing not to proceed of any
of the material benefits to it of this Agreement;
(g) No accounts payable by Seller being assumed by Buyer shall have
remained unpaid more than 30 days as of the Closing Date.
(h) In respect of the Real Estate or the OREO, there shall have been no
condemnation, eminent domain or similar proceedings commenced or
threatened in writing by any federal, state or local governmental
authority.
(i) Either (1) the results of each Phase I as reported shall be
satisfactory to Buyer or (2) any violation or potential violation
of the representations and warranties contained in Section 2.01(l)
of this Agreement disclosed in a Phase I report shall have been
remedied by Seller to the reasonable satisfaction of Buyer.
(j) Seller shall have delivered to Buyer a certificate dated the
Closing Date and signed by the President to the effect set forth in
paragraphs (a), (b), (c), (d), (e), (f), (g) and (h) of this
Section 5.02.
5.03. Non-Satisfaction of Conditions Precedent. The non-occurrence or
----------------------------------------
delay of the Closing of the transactions contemplated by this Agreement by
reason of the failure of the timely satisfaction of all conditions precedent
to the obligations of any party hereto shall in no way relieve such party of
any liability to another party hereto, nor be deemed a release or waiver of
23
any claims the other party hereto may have against such party, if and to the
extent the failure of timely satisfaction of such conditions precedent is
attributable to the actions or inactions of such party taken or omitted for
the purpose of thwarting the consummation of the transactions contemplated by
this Agreement
5.04. Waiver of Conditions Precedent. The conditions specified in
------------------------------
Sections 5.01 and 5.02 of this Agreement shall be deemed satisfied or, to the
extent not satisfied, waived if the Closing occurs, unless such failure of
satisfaction is reserved in a writing executed by Buyer and Seller at or prior
to the Closing.
ARTICLE SIX: CLOSING
---------------------
6.01. Closing and Closing Date. Unless the parties otherwise agree in
------------------------
writing, the transactions contemplated by this Agreement shall be consummated
and closed in the main offices of Buyer, or at such other location as may be
mutually agreed upon by Seller and Buyer (herein referred to as the
"Closing"), on a date that is within forty (40) days after all required
regulatory approvals have been obtained and all applicable regulatory waiting
periods have expired. The actual date on which the Closing will occur (herein
referred to as the "Closing Date") shall be agreed upon by Buyer and Seller
6.02. Seller's Actions at Closing. At the Closing, Seller shall take the
---------------------------
following actions:
(a) Deliver to Buyer at Buyer's offices such of the Assets purchased
hereunder as shall be capable of physical delivery;
(b) Execute, acknowledge and deliver to Buyer all such deeds,
endorsements, assignments, bills of sale and other instruments of
conveyance, assignment and transfer as shall reasonably be
necessary or advisable to consummate the sale, assignment and
transfer of the Assets to Buyer in accordance with this Agreement;
(c) Assign, transfer and deliver to Buyer such of the following records
(in whatever form or medium then maintained by Seller) pertaining
to the Deposit Accounts as shall then exist and shall then be
available:
(i) Signature cards, stop payment orders and retirement account
and deposit account contracts between Seller and depositors
and records of similar character;
(ii) Canceled checks and/or negotiable orders of withdrawal
representing charges to depositors;
24
(iii) A trial balance listing of records of account;
(iv) All other miscellaneous operating records, statements and
other data and materials maintained by Seller relative to
any Deposit Accounts; and
(v) Make the payment required by Section 1.05 of this Agreement.
6.03. Buyer's Actions at the Closing. At the Closing, Buyer shall take
------------------------------
the following actions:
(a) Execute, acknowledge and deliver to Seller an instrument of
assumption to evidence the assumption of the Liabilities by Buyer
hereunder;
(b) Receive, accept and acknowledge delivery of all of the Assets and
all records and documentation relating thereto;
(c) Execute and deliver to Seller such written receipts for the Assets,
properties, records and other materials assigned, transferred,
conveyed or delivered to Buyer hereunder as Seller may reasonably
have requested at or before the Closing; and
(d) Make the payment required by Section 1.04 of this Agreement.
ARTICLE SEVEN: TRANSITIONAL MATTERS
------------------------------------
7.01. Before the Closing Date.
-----------------------
(a) Seller agrees to deliver to Buyer a list of each account holder and
certificate holder of Seller containing all pertinent information
necessary for data processing conversion, including, without
limitation, names, addresses and social security and tax
identification numbers in either machine readable magnetic media.
Such delivery shall be made not later than thirty (30) days after
the date of execution of this Agreement.
(b) Buyer and Seller shall, not later than five days before the Closing
Date and at a mutually agreeable time, which in no event shall be
earlier than the time of procurement of all regulatory approvals
required for consummation of the transactions contemplated by this
Agreement, notify all depositors of Seller by letters mutually
acceptable to Buyer and Seller designed to provide necessary and
specific information to the owners of particular types of accounts,
of Buyer's pending assumption of the Deposit Accounts and, if
appropriate, notify depositors that, on and after the Closing Date,
certain Seller deposit-related services will be terminated. As an
25
enclosure to such notices, Buyer shall furnish appropriate
depositors with brochures, forms and other written material related
or necessary to the assumption of the Deposit Accounts by Buyer and
the conversion of such accounts to Buyer accounts, including the
provision of checks to appropriate depositors using the forms of
Buyer with instructions to such depositors to utilize such Buyer
checks on and after the Closing Date and thereafter to destroy any
unused checks on Seller's forms. The expenses of the printing,
processing and mailing of such letter notices shall be shared
equally by Seller and Buyer. The expenses of providing new Buyer
checks and other forms and written materials to appropriate
customers shall be paid entirely by Buyer.
(c) For each mortgagor of the mortgage loans included in the Loans,
Buyer and Seller shall provide a notice that meets the requirements
and which is in accordance with the provisions of applicable
regulations. The expenses of the printing, processing and mailing
of such notice shall be shared equally by Buyer and Seller.
(d) If a payment or deposit by check or draft received before the close
of business on the Closing Date is returned unpaid to Seller after
the Closing Date, Seller shall pay Buyer the amount of such check
or draft within five business days after it is returned and shall
thereafter have the right to collect on such check or draft from
the party who presented it.
(e) Before the Closing Date, Seller shall cooperate with Buyer,
at Buyer's sole expense in making Seller's employees available at
reasonable times for whatever program of training Buyer deems
advisable; provided, however, that Buyer shall conduct such
training program in a manner that does not materially interfere
with or prevent the performance of the normal duties and activities
of such employees.
(f) Before the Closing Date, Buyer shall designate a successor trustee,
which may be Buyer (hereinafter referred to as the "Successor
Trustee"), as to any XXX or Xxxxx plan account constituting a
Deposit Account, and the parties will cooperate with the Successor
Trustee. Seller will transfer the trusteeship of all such XXX and
Xxxxx plan accounts to the Successor Trustee on the Closing Date,
subject to the Successor Trustee's written acceptance of its duties
as Successor Trustee in form and substance acceptable to Seller.
Seller shall be responsible for all federal, state and local income
tax reporting for such IRAs and Xxxxx plan accounts for the period
of time ending on the Closing Date and the Successor Trustee shall
be responsible for such reporting thereafter.
7.02. On the Closing Date. Seller agrees to deliver to Purchaser copies,
-------------------
updated as of the close of business of the preceding business day, of the
master file for each account holder and certificate holder of the Seller,
26
including names, addresses and social security and tax identification numbers
in machine readable magnetic media.
7.03 After the Closing Date.
----------------------
(a) On or before the Closing Date, Seller, Premier and Buyer shall
cooperate and shall take all such action as is necessary to arrange
for the direct routing to Buyer through the check clearing system
of the banking industry, effective immediately after the Closing
Date, of all checks, drafts and withdrawal orders on forms provided
by Seller and carrying its imprint (including name and transit
routing number) and relating to the Deposit Accounts. Buyer agrees
to pay in accordance with law all properly drawn and presented
checks, drafts and withdrawal orders presented to Buyer by mail,
over its counters or through the check clearing system of the
banking industry, by depositors of the accounts assumed, whether
drawn on the checks, withdrawal or draft forms provided by the
Seller, or by the Buyer, and in all other respects to discharge, in
the usual course of the banking business, the duties and
obligations of the Seller with respect to the Deposit Accounts.
Buyer's obligation under this section to honor checks, withdrawal
or draft forms provided by Seller and carrying its imprint shall
expire at the close of business on the forty-fifth (45th) business
day after the Closing Date.
(b) Seller shall provide all information and take all steps required
to be taken by it that are reasonably necessary for Buyer to effect
the transfer of any direct deposit arrangement affecting any of the
Deposit Accounts and shall promptly pay to Buyer any funds received
by Seller that are intended to be credited to any such Deposit
Account. Buyer shall complete all actions necessary to effect the
transfer of such direct deposit arrangements within sixty (60) days
following the Closing Date. Seller shall have the right to return
to the payor any direct deposit item received by it subsequent to
sixty (60) days after the Closing Date, or such other time period
as Buyer and Seller may mutually agree upon.
(c) Holds that have been placed by Seller on particular Deposit
Accounts or on individual checks, drafts or other instruments shall
be continued by Buyer under the same terms. Seller shall deliver
to Buyer on the Closing Date a schedule and explanation of such
holds.
(d) Seller and Buyer shall cooperate and use their best efforts to
assist in the transfer to Buyer of the Deposit Accounts and Assets
and shall take all actions necessary to accomplish such transfer,
including but not limited to the provision of any required notices
to customers and the obtaining of all governmental approvals
(e) All tasks and obligations concerning the provision of data
processing services to or for the Assets purchased and Liabilities
27
assumed by Buyer after the Closing, other than those specifically
set forth in this Agreement, are the sole and exclusive
responsibility of, and shall be performed solely and exclusively
by, Buyer.
(f) Buyer shall, as soon as practicable after the Closing Date, prepare
and transmit, at Buyer's expense, to the obligors on all Deposit
Account loans transferred to Buyer pursuant to this Agreement a
notice to the effect that such loan has been transferred and that
payment should be made to Buyer at any address of Buyer specified
by Buyer, with Buyer's name as payee on any checks or other
instruments used to make payments.
ARTICLE EIGHT: NONCOMPETE
--------------------------
8.01. Cessation of business. Immediately after the closing, Seller shall
---------------------
cease to operate as a financial institution, except as required by law, as
necessary to fulfill Seller's obligations pursuant to this Agreement or as
necessary to collect amounts owed on remaining loans and to wind up
operations.
8.02. Noncompetition. None of Seller, Premier nor any of their
--------------
affiliates shall open a financial institution, credit union, finance company,
investment advisor, mortgage bank or broker, deposit taking office or loan
origination office within the Ohio Counties of Brown, Clermont, Clinton,
Highland and Xxxxxx for a period of three years from the date of this
Agreement. For a period of one year following the Closing Date, none of
Seller, Premier nor any of their affiliates will solicit any resident of
Sabina, Ohio, to induce such person to shift its deposit, loan or other
banking business to Seller, Premier or any of their affiliates. The
provisions of this Section 8.02 shall not apply to any financial institution
that has a branch in any of the Ohio Counties of Brown, Clermont, Clinton,
Highland or Xxxxxx on the date of this Agreement and which subsequently
acquires all of the outstanding stock or all or substantially all of the
business of Premier.
ARTICLE NINE: TERMINATION
--------------------------
9.01. Termination by Mutual Agreement. This Agreement may be terminated
-------------------------------
and the transactions contemplated hereby may be abandoned by mutual consent of
Seller and Buyer.
28
9.02. Termination by Seller. This Agreement may be terminated and the
---------------------
transactions contemplated hereby abandoned by Seller on or before the Closing
Date:
(a) In the event of a material breach by Buyer of any term or condition
of this Agreement;
(b) In the event that any of the conditions precedent specified in
Section 5.01 of
(c) this Agreement have not been satisfied on or before December 31,
2001, and, if not so satisfied, have not been waived by Seller;
(d) In the event that any regulatory approval required for the
consummation of the transactions contemplated by this Agreement is
denied by the applicable regulatory authority;
(e) In the event that Seller shall reasonably conclude, at any time
before the Closing Date, that a regulatory approval required for
the consummation of the transactions contemplated hereby will not
be obtained; or
(f) In the event that the Closing does not occur on or before December
31, 2001.
9.03. Termination by Buyer. This Agreement may be terminated and the
transactions contemplated hereby abandoned by Buyer on or before the Closing
Date:
(a) In the event of a material breach by Seller of any term or
condition of this Agreement;
(b) In the event that any of the conditions precedent specified in
Section 5.02 of this Agreement have not been satisfied on or before
December 31, 2001, and, if not so satisfied, have not been waived
by Buyer;
(c) In the event that any regulatory approval required for the
consummation of the transaction contemplated by this Agreement is
denied by the applicable regulatory authority;
(d) In the event that Buyer shall reasonably conclude, at any time
before the Closing Date, that a regulatory approval required for
the consummation of the transactions contemplated by this Agreement
will not be obtained; or
(e) In the event that the Closing does not occur on or before December
31, 2001.
29
9.04. Notice and Effect of Termination. Upon the occurrence of an event
--------------------------------
for which either Seller or Buyer may terminate this Agreement in accordance
with Sections 9.02 or 9.03 of this Agreement, the party that desires to
terminate this Agreement shall deliver written notice of the occurrence of
such event to the other party. This Agreement shall terminate, the
transactions contemplated hereby shall be abandoned and this Agreement shall
be of no further force or effect on the date of delivery of such notice
9.05. Effect of Termination. The termination of this Agreement pursuant
---------------------
to this Article Nine shall not release any party hereto from any liability or
obligation to the other party hereto arising from (a) a breach of any
provision of this Agreement occurring before the termination hereof, or (b)
the failure of timely satisfaction of conditions precedent to the obligations
of a party to the extent that such failure of timely satisfaction is
attributable to the actions or inactions of such party taken or omitted for
the purpose of thwarting the consummation of the transactions contemplated by
this Agreement.
ARTICLE TEN: INDEMNIFICATION
-----------------------------
10.01. General. Subject to the terms and conditions of this Article Ten,
-------
Premier shall indemnify, defend and hold Buyer and its respective directors,
officers, employees, and agents, and the respective heirs, personal
representatives, successors, and assigns of each of the foregoing
collectively, the "Buyer Group") harmless from and against any and all
damages, liabilities, obligations, claims, demands, judgments, settlements,
costs and expenses of any nature whatsoever, including reasonable attorneys'
fees ("Losses"), directly or indirectly asserted against, resulting to,
imposed upon or incurred by the Buyer Group or any member thereof, at any time
after the Closing Date and prior to the date that is two years after the
Closing Date(i) by reason of or resulting from any inaccuracy of any
representation or warranty or any breach or violation of any covenant or
agreement of Premier or Seller contained in this Agreement or (ii) arising
out of, based upon or in connection with the operation of Seller's business or
the ownership of the Assets or the Liabilities on or before the Closing during
the periods in which Seller owned the Assets and the Liabilities and any one
or more of the liabilities of Seller not assumed by Buyer, including any
Losses resulting from intentional acts of misconduct of directors, officers
and employees of Seller (collectively, the "Claims").
10.02. Conditions of Indemnification. The obligations and liabilities of
-----------------------------
Premier under this Article Ten with respect to the Claims shall be subject to
the following terms and conditions:
30
(a) The person to whom such Claim relates (the "Indemnified Party")
will give Premier prompt notice of such Claim (but the failure to
give prompt notice of such Claim will not result in a loss of the
right to be indemnified under this Article Ten except to the
extent such failure materially prejudices Premier), and Premier
will assume the defense thereof by representatives chosen jointly
by Premier and Buyer.
(b) If Premier, within a reasonable time after notice of any such
Claim, fails to assume the defense thereof, the Indemnified Party
or any other member of its group shall (upon further notice to
Premier) have the right to undertake the defense, compromise or
settlement of such Claim on behalf of and for the account and risk
of Premier.
(c) Anything in this Section 10.02 to the contrary notwithstanding, (i)
if there is a reasonable probability that a Claim may materially
and adversely affect the Indemnified Party or any other member of
the Indemnified Party's group other than as a result of money
damages or other money payments, the Indemnified Party or such
member of the Indemnified Party's group shall have the right to
defend, at its own cost and expense, and to compromise or settle
such Claim with the consent of Premier, which consent shall not be
unreasonably withheld, and (ii) Premier shall not, without the
written consent of the Indemnified Party, settle or compromise any
claim or consent to the entry of any judgment that does not include
as an unconditional term thereof the giving by the claimant or the
plaintiff to the Indemnified Party or such member of the
Indemnified Party's group, or both, a release from all liability in
respect of such Claim.
10.03. Remedies Cumulative. The remedies provided herein shall be
-------------------
cumulative and shall not preclude assertion by the Buyer Group or any member
thereof of any other rights or the seeking of any other remedies against
Premier.
ARTICLE ELEVEN: MISCELLANEOUS
------------------------------
11.01. Expenses and Remedies. Except as and to the extent specifically
---------------------
allocated otherwise herein, all costs and expenses incurred in connection with
this Agreement and the transactions contemplated hereby shall be paid by the
party incurring such costs and expenses, whether or not the transactions
contemplated hereby are consummated. Notwithstanding any provision in this
Agreement to the contrary, in the event that either of the parties shall
willfully default in its obligations hereunder, the non-defaulting party may
31
pursue any remedy available at law or in equity to enforce its rights and
shall be paid by the willfully defaulting party for all damages, costs and
expenses, including, without limitation, legal, accounting, investment banking
and printing expenses, incurred or suffered by the non-defaulting party in
connection herewith or in the enforcement of its rights hereunder if such non-
defaulting party prevails.
11.02. Notifications of Occurrences. At all times from the date of this
----------------------------
Agreement until the Closing, each party shall promptly notify the other of the
occurrence of any event or the failure of any event to occur which might
reasonably be expected to result in a breach of or a failure to comply with
any representation, warranty, covenant, condition or agreement contained in
this Agreement or of the commencement of any action, suit, proceeding or
investigation against it.
11.03. Termination of Representations and Warranties.
---------------------------------------------
(a) The respective representations and warranties of Seller and Buyer
contained or referred to in Article Two of this Agreement or in any
certificate, schedule or other instrument delivered pursuant to
this Agreement shall survive the Closing and remain in full force
and effect for two years after the Closing in accordance with the
terms of this Agreement.
(b) The obligations of Buyer set forth in Section 1.02 of this
Agreement and the obligations of Seller set forth in Articles Four
and Seven of this Agreement shall survive the Closing and shall
remain in full force and effect for two years after the Closing in
accordance with the terms of this Agreement.
11.04. Waivers. Each party hereto, by written instrument signed by duly
-------
authorized officers of such party, may extend the time for the performance of
any of the obligations or other acts of the other party hereto and may waive
any of the following to the extent such waiver affects only the waiving party:
(a) Any inaccuracies in the representations or warranties of the other
party contained or referred to in this Agreement or in any other
document pursuant hereto;
(b) Compliance with any of the covenants or agreements of the other
party contained in this Agreement;
(c) The performance (including performance to the satisfaction of a
party or its counsel) by the other party of such of its obligations
set out herein; or
32
(d) Satisfaction of any condition to the obligations of the waiving
party pursuant to this Agreement;
No exercise or waiver, in whole or in part, of any right or remedy
provided for in this Agreement shall operate as a waiver of any other right or
remedy. No delay on the part of any party in the exercise or any right or
remedy shall operate as a waiver thereof.
11.05. Termination Fee.
---------------
(a) Seller shall pay to Buyer, and Buyer shall be entitled to payment
of, a fee equal to $100,000 (hereinafter referred to as the "Fee")
upon the occurrence of a Purchase Event (hereinafter defined) so
long as the Purchase Event occurs prior to a Fee Termination Event
(hereinafter defined). Such payment shall be made to Buyer in
immediately available funds within five business days after the
occurrence of a Purchase Event. A Fee Termination Event shall be
the first to occur of the following: (i) the Closing or (ii)
termination of this Agreement in accordance with the terms hereof
prior to the occurrence of a Purchase Event (other than a
termination of this Agreement by Buyer pursuant to Section 11.01
hereof as a result of a willful breach of any representation,
warranty, covenant or agreement of Seller or Premier)
(b) The term "Purchase Event" shall mean any of the following events or
transactions occurring after the date hereof and before December
31, 2001.
(i) Seller or Premier shall have entered into an agreement to
engage in an Acquisition Transaction with any person (the
term "person" for purposes of this Agreement having the
meaning assigned thereto in Sections 3(a)(9) and 13(d)(3) of
the 1934 Act and the rules and regulations thereunder) other
than Buyer or any affiliate of Buyer (the term "affiliate"
having the meaning assigned thereto in Rule 405 under the
1933 Act);
(ii) After a bona fide written proposal is made by any person
other than Buyer or any affiliate of Buyer to Seller,
Premier or Premier's shareholders to engage in an
Acquisition Transaction, Seller or Premier shall have
breached any covenant or obligation contained in this
Agreement and such breach would entitle Buyer to terminate
this Agreement.
If more than one occurrence constituting a Purchase Event
under this Section arises, then all such occurrences shall
give rise to only one Purchase Event.
(c) Seller shall give written notice to Buyer within 72 hours of the
occurrence of a Purchase Event known to Seller; however, the giving
of such notice by Seller shall not be a condition to the right of
Buyer to obtain the Fee; and
33
(d) Payment of the Fee shall be in lieu of, and not in addition to,
the payment of damages pursuant to Section 11.01 of this Agreement.
11.06. Notices. Any notices, requests, demands or other communications
-------
hereunder shall be in writing and shall be deemed to have been duly given when
mailed by United States registered or certified mail, postage prepaid, to the
following address:
If to the Purchaser: The National Bank and Trust Company
00 X. Xxxxx Xxxxxx
Xxxxxxxxxx, Xxxx 00000
Attention: Xxxxxxx X. Xxxxx
with copies to: Vorys, Xxxxx, Xxxxxxx and Xxxxx LLP
Suite 2100, Atrium Two
000 X. Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxx 00000
Attention: Xxxxxxx X. Xxxxxx
If to Seller or Premier: Premier Financial Bancorp, Inc.
000 X. Xxxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attention: Chief Executive Officer
with copies to: Xx. Xxxxx X. Xxxxxx
0000 Xxxxxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
Either party hereto may change its address for notification purposes by
giving notice thereof in writing, as described above.
11.07. Parties in Interest; Assignment; Amendment. This Agreement is
------------------------------------------
binding upon and is for the benefit of the parties hereto and their respective
successors, legal representatives and assigns, and no person who is not party
hereto (or a successor or assignee of such party) shall have any rights or
benefits under this Agreement, either as a third party beneficiary or
otherwise. This Agreement cannot be assigned, and this Agreement cannot be
amended or modified, except by a written agreement executed by the parties
hereto or their respective successors and assigns.
11.08. Headings. The headings used in this Agreement are inserted for
--------
convenience of reference only and are not intended to be a part of or to
affect the meaning or interpretation of this Agreement.
34
11.09. Press Releases. Seller and Buyer shall consult with one another in
--------------
respect of the form and substance of any press release of any matters relating
to this Agreement and shall not issue any such press release without obtaining
the prior written consent of the other parties; provided, however, that
nothing in this Section 11.08 shall be deemed to prohibit any party hereto
from making any press release that its legal counsel deems necessary in order
to fulfill such party's disclosure obligations imposed by law.
11.10. Entire Agreement. This Agreement supersedes any and all oral or
----------------
written agreements and understandings heretofore make relating to the subject
matter hereof and contains the entire agreement of the parties relating to the
subject matter hereof. All schedules, exhibits and appendices to this
Agreement are incorporated into this Agreement by reference and made a part
hereof.
11.11. Governing Law. This Agreement shall be governed by the laws of the
-------------
State of Ohio, without giving effect to the principles of conflicts of laws
thereof.
11.12. Execution of Documents. Each party hereto shall from time to time
----------------------
after Closing, at the reasonable request of the other and without further
consideration, execute and deliver such further instruments of conveyance,
assignment and transfer or other documents, and take such action as the other
may reasonably request, in order more effectively to assign, sell convey and
transfer the assets conveyed hereunder and otherwise to effect the objectives
hereof.
35
IN WITNESS WHEREOF, Seller, Premier and Buyer hereto have caused this
Agreement to be executed as of the date first above written.
ATTEST: THE NATIONAL BANK AND TRUST
COMPANY
/s/Xxxxxxx X. Xxxxxx By:/s/Xxxxxxx X. Xxxxx
---------------------------- -------------------------------
/s/Xxxxx X. Xxxxxx its President and Chief
---------------------------- Executive Officer
ATTEST: PREMIER FINANCIAL BANCORP, INC.
/s/Xxxxxxx X. Xxxxxx By:/s/Xxxxxxx X. Xxxxxx
---------------------------- -------------------------------
/s/Xxxxx X. Xxxxxx its President and Chief
---------------------------- Executive Officer
ATTEST: THE SABINA BANK
/s/Xxxxxxx X. Xxxxxx By:/s/Xxxxx X. Xxxxxx
---------------------------- ------------------------------
/s/Xxxxx X. Xxxxxx its President and Chief
---------------------------- Executive Officer
36
ACKNOWLEDGEMENT
STATE OF OHIO )
) SS:
COUNTY OF CLINTON )
BE IT REMEMBERED that on this 9th day of July, 2001, personally came
before me, a Notary Public in and for the State and County aforesaid,
Xxxxxxx X. Xxxxx, President and Chief Executive Officer of The National
Bank and Trust Company, and duly executed the Asset Purchase and Liability
Assumption Agreement before me and acknowledged the same to be his act and
deed and the act and deed of said corporation and that the facts therein are
true.
IN WITNESS WHEREOF, I have hereunto set my hand and seal this 9th day of
July, 2001.
/s/Xxxxx X. Xxxxxx
--------------------------------
Notary Public
STATE OF OHIO )
) SS:
COUNTY OF CLINTON )
BE IT REMEMBERED that on this 9th day of July, 2001, personally came
before me, a Notary Public in and for the State and County aforesaid,
Xxxxxxx X. Xxxxxx, President and Chief Executive Officer of Premier
Financial Bancorp, Inc., and duly executed the Asset Purchase and Liability
Assumption Agreement before me and acknowledged the same to be his act and
deed and the act and deed of said corporation and that the facts therein are
true.
IN WITNESS WHEREOF, I have hereunto set my hand and seal this 9th day of
July, 2001.
/s/Xxxxx X. Xxxxxx
--------------------------------
Notary Public
37
STATE OF OHIO )
) SS:
COUNTY OF CLINTON )
BE IT REMEMBERED that on this 9th day of July, 2001, personally came
before me, a Notary Public in and for the State and County aforesaid,
Xxxxx X. Xxxxxx, President and Chief Executive Officer of The Sabina Bank,
and duly executed the Asset Purchase and Liability Assumption Agreement
before me and acknowledged the same to be his act and deed and the act and
deed of said corporation and that the facts therein are true.
IN WITNESS WHEREOF, I have hereunto set my hand and seal this 9th day of
July, 2001.
/s/Xxxxx X. Xxxxxx
--------------------------------
Notary Public
38
EXHIBIT A
REAL ESTATE
1. 00 Xxxxx Xxxxxx Xxxxxx, Xxxxxx, Xxxx:
Parcel 1
--------
Being Lot No. Four (4) of X.X. Xxxxxx' Subdivision of Outlot No. six (6),
Hallam's Addition and a part of a vacated alley and bounded and described as
follows: Beginning at an iron pipe in the easterly line of an alley at the
southwesterly corner of the aforesaid Lot No. Four (4), said iron pipe being
the northwesterly corner of Outlot No. Five (5) of Hallam's Addition to the
Village of Sabina; running thence, from said point of beginning, with the
westerly line of said Lot No. Four (4) and with the easterly line of said
alley, N. 1 degrees 27' 30" E., 71.97 feet to an iron pin in the centerline
of a vacated 16.5 foot wide alley; thence with the centerline of said 16.5
foot wide alley N. 88 degrees 30' 00" E., 94.00 feet to an iron pin in the
northerly projection of the easterly line of said Lot No. Four (4); thence
with the easterly line of said Lot No. Four (4), S. 0 degrees 04' 20" E.,
78.81 feet to an iron pin at the southeasterly corner of said Lot No. Four
(4) in the northerly line of said Outlot No. Five (5); thence with the
southerly line of said Lot No. Four (4) and with the northerly line of said
Outlot No. Five (5) N. 87 degrees 22' 20" W., 96.00 feet to the point of
beginning, containing one hundred sixty-four thousanths (0.164) of an acre.
Parcel 2
--------
Beginning at an iron pipe at the southeast corner of Outlot No. 5 and in the
north line of an alley; thence with the said north line of said alley and the
south line of said Outlot No. 5 88 degrees 23' W., a distance of 327.80 feet
to an iron pipe at the northeast corner of two alleys; thence with the east
line of said alley and the west line of said Outlot N. 2 degrees 02' E., a
distance of 135.96 feet to an iron pipe at the northwest corner of said
Outlot; thence with the north line of said Outlot, S. 87 degrees 23' E., a
distance of 325.66 feet to an iron pipe at the northeast corner of said
outlot; thence with the east line of said Outlot, S. 1 degrees 05' W., a
distance of 130.20 feet to the beginning containing one (1) acre more or
less, being part of Presley Nevills' survey No. 766 and the whole of Outlot
No. 5 of the Village of Sabina, Ohio.
39
Parcel 3
--------
Being the north thirty (30) feet off of Lot No. Eight (8) of the original town
plat of the Village of Sabina, fronting on the East side of Xxxxxx Street in
said Village and running back an equal width, 165 feet to an alley.
2. 000 Xxxxx Xxxxxx Xxxxxx, Xxxxxx, Xxxx:
Parcel I
--------
Situated in the Village of Sabina, in the County of Clinton, and State of Ohio
and further bounded and described as follows:
Beginning at an iron pin in the west margin of North Xxxxxx Street and north
east corner of the lot herein described; thence with the west margin or North
Xxxxxx St., S. 10 degrees 15' W., 36.60 feet to a cross cut in the walk at the
north east corner of a 0.05 acre tract; thence with the north line of said
tract, N. 81 degrees 54' W., 162.85 feet to an iron pin in the east margin of
Jefferson Street; thence with the east margin of Jefferson Street, N. 10
degrees 15' E., 15.49 feet to an iron pin corner of Lot #4; thence with the
south line of Lot #4, S. 89 degrees 15' E., 165.00 feet to the place of
beginning, containing 0/10 acre of land, more or less.
The above description is from a new survey dated July 17, 1970, by Xxxxxxx
Xxxxxx, Reg. Surveyor #3966 and is part of the premises conveyed from Xxxxxx
X. Xxxxx, unmarried, and Xxxxxxx X. Xxxxx and Xxxxx X. Xxxxx, husband and
wife, to Xxxx Xxxxxx by Warranty Deed dated January 5, 1970, and recorded in
Volume 220, Page 119, Clinton County, Ohio Deed Records.
Parcel II
---------
Situate in the Village of Sabina, County of Clinton, and in the State of Ohio,
and described as follows:
Being part of Lot No. 2 in Hallam's Addition and being further described as
follows: Beginning at an iron pin in the west margin of Xxxxxx Street and
northeast corner of the original Lot No. 2 of Hallam's Addition; thence North
89 degrees 15' West, 165 feet to an iron pin in the east margin of Jefferson
Street; thence with the east margin of Jefferson Street South 10 degrees 15'
East 44.3 feet to an iron pin; thence South 89 degrees 15' East 105 feet to
where The Sabina Bank Building and the Xxxxx Building join; thence North 10
degrees West 1.66 feet to the Xxxxx Building South wall; thence with the south
margin of the brick wall of the Xxxxx Building 60 feet to the west margin of
Xxxxxx Street; thence with the west margin of Xxxxxx Street North 10 degrees
15' East 44.3 feet to the place of beginning, containing 7335 square feet.
40
Parcel III
----------
Situate in the Village of Sabina, County of Clinton and State of Ohio, being
the south part of Lot No. 3 of Hallam's Addition and further bounded and
described as follows:
Beginning at an iron pin in the west margin xx Xxxxx Xxxxxx Xxxxxx and
northeast corner of Lot No. 2; thence with the north line of Xxx Xx. 0, X. 00
degrees 15' W. 165.00 feet to an iron pin corner of said lot in the east
margin of Jefferson St.; thence with the east margin of Jefferson Street N. 10
degrees 15' E. 41.05 ft. to an iron pin corner of a 0.05 acre tract; thence
with the south line of said tract S. 81 degrees 54' E. 162.85 feet to a cross
in the walk in the west xxxxxx xx Xxxxx Xxxxxx Xx.; thence with the west
margin of said street S. 10 degrees 15' W. 19.94 feet to the place of
beginning, containing 0.11 acre of land, more or less.
3. Xxxxxxxxx Xxxxxx xx Xxxxxx Xxxxxx and Xxx Xxxxxx, Xxxxxx, Xxxx:
Situated in the Village of Sabina, in the County of Clinton, and in the State
of Ohio, and being a part of Lot No. One of Hallam's Addition to the said
Village of Sabina, and further bounded and described as follows: Beginning
at the northwest corner of Lot No. 1, and in the west margin of Xxxxxx Street;
thence with the west margin of said street, S. 10 degrees 15' W. Thirty-six
(36) feet to a point in the north margin of Elm Street; thence with the north
margin of Elm Street, N. 89 degrees 1' W. One Hundred Two feet and eleven
inches (102'11") to a chiseled xxxxx xxxx in the sidewalk; thence across said
Xxx Xx. 0, X. 0 degrees 50' E. thirty-four feet and eight inches (34'8") to a
point in the north line of said Lot No. 1; thence with the line between Lots
Nos. 1 and No. 2, S. 89 degrees 30' E. One Hundred eight feet and seven inches
(108'7") to the place of beginning.
4. Xxxxxxxxx Xxxxxx xx Xxx Xxxxxx xxx Xxxxxxxxx Xxxxxx, Xxxxxx, Xxxx:
Beginning at a pin or stone in the northwest corner of Lot No. 1 of X.
Xxxxxx'x addition to the Village of Sabina, at the corner of Elm and Jefferson
Street; thence southeast 63 feet and 4 inches to an iron pin in the line
between said Xxx Xx. 0 xxx Xxx Xxxxxx; thence northeast across said lot, 34
feet and 10 inches to an iron pin in the line between Lot No. 1 and Lot No. 2
in said addition; thence with the line between said Lots Nos. 1 and 2
northwest 56 feet and 8 inches to Jefferson Street; thence with the line
between said lot and Jefferson Street, west 34 feet and 7 inches to Elm
Street, the place of beginning.
41
And also all their rights and title to a strip of land and a building wall
owned jointly with the Sabina Bank and the rights and privileges respectively
held therein being fully set forth in a certain agreement acquired by the
grantors hereto and the said Sabina Bank, of date January 31, 1930, it being
understood and agreed by all the parties hereto that as to said partition line
and wall, said agreement is controlling.
And also all their rights and title to a strip of land and building wall which
was transferred to Xxxxxx X. Xxxxxx by X. X. Xxxxxx and by Xxxxxx to X. X.
Xxxxxxxxxx and by Xxxxxxxxxx to X. X. Xxxxx on said lot, said transfer being
made by virtue of an article of agreement recorded in Agreement Record, Volume
3, page 63 in the office of the Recorder of Clinton County, Ohio.
5. 000 Xxxxx Xxxx Xxxxxx, Xxx, Xxxx:
In lot Number One (1) in A, Xxxxx First Addition to the Village of Ada, Ohio.
6. Westminster and Mulberry Streets, Waynesfield, Ohio:
Parcel 1
--------
Situate in the Village of Waynesfield, County of Auglaize and State of Ohio,
to wit:
Lot Number Thirty-Five (35) in Xxxxxx Brothers Addition to the Village of
Waynesfield, Ohio.
Parcel 2
--------
Being the Southeast corner of Lot Three (3) of the Crown Hill Addition to the
Village of Waynesfield, Ohio, and being further described as follows:
Beginning at the Southeast corner of Lot No. Three (3) as shown on the plat
map of the Crown Hill Addition; Thence North approximately Thirty-Four (34)
Feet, to a point; Thence West approximately Nine point Five feet (9.5) to a
point on the North side of the existing East-West sidewalk located on the said
Lot No. Three (3); Thence continuing West a distance of approximately Eighty-
Five (85) Feet, more or less, to a point; Thence South approximately Thirty-
Four (34) Feet, to a point on the North side line of West Mulberry Street;
Thence East along the North line of West Mulberry Street to the place of
beginning.
42
EXHIBIT B
FIXED ASSETS
(OMITTED)
43
EXHIBIT C
LOANS
Name of Borrower Number
---------------- -------
Brookview Capital
Xxxxx, Xxxxx
Xxxxxx Finance
Fourth Leaf
HIB Inc.
Xx Xxxx Health
New Image Air
Waynesfield Goshen
44
EXHIBIT D
ASSETS EXCLUDED
190120 Prepaid Expenses
190250 Deferred SP Plan Orig. Cost
190300 Provision for Income Tax
45
EXHIBIT E
OTHER OBLIGATIONS
1. Current operating accounts payable (for example, office supplies)
2. Loan insurance related escrow accounts
3. Income tax withholding accounts
46
EXHIBIT F
LIABILITIES NOT ASSUMED
294140 Deferred Federal Income Tax
294150 Deferred Taxes FASB 115
295101 Real Estate Tax and Insurance Escrow
295020 Loan Fees Payable
295031 Accrued Bonuses
295032 Accrued Real Estate Taxes
295033 Accrued Franchise Taxes
295034 Accrued Profit Sharing/401(k)
295035 Accrued Audits and Exams
295040 Other Accrued Expenses
295050 Sabina Bank General Escrow
47