FORM 10-Q
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SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
(Mark One)
[ X ] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934 [FEE REQUIRED]
For the quarterly period ended June 30, 1998
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF
THE SECURITIES EXCHANGE ACT OF 1934 [NO FEE REQUIRED]
For the transition period from ____ to ____
Commission file number 0-16772
PEOPLES BANCORP INC.
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(Exact name of Registrant as specified in its charter)
Ohio 31-0987416
- ------------------------------- -----------------------------------
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
138 Putnam Street, P. O. Box 738, Marietta, Ohio 45750
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (740) 373-3155
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Indicate by check mark whether the registrant (1) has filed all
reports required by Section 13 or 15 (d) of the Securities
Exchange Act of 1934 during the preceding 12 months (or for such
shorter period that the registrant was required to file such
reports), and (2) has been subject to such filing requirements
for the past 90 days.
Yes X No
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Indicate the number of shares outstanding of each of the
issuer's class of Common Stock, as of July 1, 1998: 5,748,170.
<PAGE>
PART I - FINANCIAL INFORMATION
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ITEM 1
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The following Condensed Consolidated Balance Sheets,
Consolidated Statements of Income, Consolidated Statements of
Shareholders' Equity, and Consolidated Statements of Cash Flows
of Peoples Bancorp Inc. (the "Company") and subsidiaries,
reflect all adjustments (which include normal recurring
accruals) necessary to present fairly such information for the
periods and dates indicated. Since the following condensed
unaudited financial statements have been prepared in accordance
with instructions to Form 10-Q, they do not contain all
information and footnotes necessary for a fair presentation of
financial position in conformity with generally accepted
accounting principles. Operating results for the six months
ended June 30, 1998, are not necessarily indicative of the
results that may be expected for the year ending December 31,
1998. Complete audited consolidated financial statements with
footnotes thereto are included in the Company's Annual Report on
Form 10-K for the year ended December 31, 1997.
The consolidated financial statements include the accounts of
the Company and its wholly-owned subsidiaries. Significant
intercompany accounts and transactions have been eliminated.
<PAGE>
PEOPLES BANCORP INC. AND SUBSIDIARIES
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CONDENSED CONSOLIDATED BALANCE SHEETS
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(Dollars in thousands) June 30, December 31,
1998 1997
ASSETS
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Cash and cash equivalents:
Cash and due from banks $ 28,621 $ 21,473
Interest-bearing deposits in other banks 3,382 7,008
Federal funds sold 52,750 10,350
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Total cash and cash equivalents 84,753 38,831
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Available-for-sale investment securities,
at estimated fair value (amortized cost
of $205,277 and $170,702 at June 30,
1998 and December 31, 1997, respectively) 208,962 174,291
Loans, net of unearned interest 533,264 521,570
Allowance for loan losses (9,171) (8,356)
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Net loans 524,093 513,214
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Bank premises and equipment, net 15,155 11,971
Other assets 33,381 19,851
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Total assets $ 866,344 $ 758,158
=========================================================================
LIABILITIES AND STOCKHOLDERS' EQUITY
- ------------------------------------
Deposits:
Non-interest bearing $ 74,473 $ 64,229
Interest bearing 623,629 546,878
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Total deposits 698,102 611,107
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Short-term borrowings:
Federal funds purchased and securities
sold under repurchase agreements 31,370 30,811
Federal Home Loan Bank term advances 3,050 1,750
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Total short-term borrowings 34,420 32,561
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Long-term borrowings 44,121 28,577
Accrued expenses and other liabilities 7,712 7,095
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Total liabilities $ 784,355 $ 679,340
=========================================================================
Stockholders' Equity
- --------------------
Common stock, no par value, 12,000,000
shares authorized - 5,782,091 shares
issued at June 30, 1998 and 3,831,206
issued at December 31, 1997, including
shares in treasury 50,578 50,001
Accumulated comprehensive income, net of
deferred income taxes 2,395 2,369
Retained earnings 30,129 26,448
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83,102 78,818
Treasury stock, at cost, 37,460 shares
at June 30, 1998 and no shares at
December 31, 1997 (1,113) 0
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Total stockholders' equity 81,989 78,818
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Total liabilities and stockholders'
equity $ 866,344 $ 758,158
=========================================================================
<PAGE>
PEOPLES BANCORP INC. AND SUBSIDIARIES
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CONDENSED CONSOLIDATED STATEMENTS OF INCOME
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(Dollars in thousands, except per share data)
Three Months Ended Six Months Ended
June 30, June 30,
1998 1997 1998 1997
Interest income $ 15,735 $ 13,122 $ 31,099 $ 25,884
Interest expense 7,531 6,106 14,851 12,024
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Net interest income 8,204 7,016 16,248 13,860
Provision for loan losses 546 641 1,242 1,229
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Net interest income
after provision for
loan losses 7,658 6,375 15,006 12,631
Other income 1,590 1,462 3,208 2,880
(Gain) loss on securities
transactions 427 (2) 431 (31)
Other expenses 5,444 4,721 10,858 9,426
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Income before income taxes 4,231 3,114 7,787 6,054
Federal income taxes 1,431 989 2,611 1,927
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Net income $ 2,800 $ 2,125 $ 5,176 $ 4,127
=============================================================================
Basic earnings per share $0.49 $0.41 $0.90 $0.80
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Diluted earnings per share $0.47 $0.40 $0.87 $0.78
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Weighted average shares
outstanding (basic) 5,754,541 5,174,951 5,750,750 5,171,895
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Weighted average shares
outstanding (diluted) 5,957,274 5,329,832 5,947,359 5,311,217
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Cash dividends declared $ 765 $ 621 $ 1,495 $ 1,241
Cash dividend per share $0.13 $0.12 $0.26 $0.24
<PAGE>
PEOPLES BANCORP INC. AND SUBSIDIARIES
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CONSOLIDATED STATEMENT OF SHAREHOLDERS' EQUITY
- ----------------------------------------------
(Dollars in thousands, except share amounts)
Accumulated
Other
Common Stock Retained Treasury Comprehensive
Shares Amount Earnings Stock Income Total
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Balance,
December 31,
1997 3,831,206 $ 50,001 $ 26,448 $ 0 $ 2,369 $ 78,818
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Adjustment for
the effect of
3-for-2 common
stock split 1,915,603
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Balance,
December 31,
1997 restated 5,746,809
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Comprehensive income:
Net income 5,176 5,176
Other omprehensive income,
net of tax:
Unrealized losses on available-
for-sale securities, net of
reclassification adjustment 26 26
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Other comprehensive income 26
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Comprehensive income 5,202
Exercise of
common stock
options 28,451 370 370
Cash dividends
declared (1,495) (1,495)
Common stock
issued under
dividend
reinvestment plan 6,831 207 207
Purchase of treasury
stock, 37,460
shares (1,113) (1,113)
- ------------------------------------------------------------------------------
Balance, June
30, 1998 5,782,091 $ 50,578 $ 30,129 $(1,113) $ 2,395 $ 81,989
==============================================================================
Comprehensive Income:
- ---------------------
Unrealized holding losses on available-for-sale
securities arising during the period, net of income taxes (494)
Less: reclassification adjustment for gains
realized in net income, net of income taxes 520
- ------------------------------------------------------------------------------
Net unrealized losses on available-for-sale securities,
net oftax 26
==============================================================================
<PAGE>
PEOPLES BANCORP INC. AND SUBSIDIARIES
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CONSOLIDATED STATEMENTS OF CASH FLOWS
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(Dollars in thousands)
Six Months Ended
June 30,
1998 1997
Cash flows from operating activities:
- -------------------------------------
Net income $ 5,176 $ 4,127
Adjustments to reconcile net income to net
cash provided by operating activities:
Provision for loan losses 1,242 1,229
(Gain) loss on sale of investment securities (431) 31
Depreciation, amortization, and accretion 1,227 1,294
Increase in interest receivable (378) (216)
Increase (decrease) in interest payable 452 (72)
Deferred income taxes 697 174
Deferral of loan origination fees and costs 90 32
Other, net (2,633) (696)
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Net cash provided by operating activities 5,442 5,903
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Cash flows from investing activities:
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Purchases of available-for-sale securities (84,788) (9,774)
Proceeds from sales of available-for-sale
securities 19,698 4,204
Proceeds from maturities of available-for-sale
securities 31,248 8,589
Net increase in loans (3,889) (24,333)
Expenditures for premises and equipment (2,298) (354)
Proceeds from sales of other real estate owned 79 28
Business acquisitions, net of cash received 99,053 4,679
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Net cash provided by (used in) investing
activities 59,103 (16,961)
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Cash flows from financing activities:
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Net decrease in non-interest bearing deposits (1,177) (7,300)
Net (decrease) increase in interest-bearing
deposits (29,290) 15,959
Net (decrease) increase in short-term borrowings (1,690) 253
Proceeds from long-term borrowings 16,782 3,000
Payments on long-term borrowings (1,238) (1,599)
Cash dividends paid (1,268) (1,031)
Purchase of treasury stock (1,113) (289)
Proceeds from issuance of common stock 371 73
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Net cash (used in) provided by financing
activities (18,623) 9,066
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Net increase in cash and cash equivalents 45,922 (1,992)
Cash and cash equivalents at beginning of period 38,831 28,517
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Cash and cash equivalents at end of period $ 84,753 $ 26,525
============================================================================
<PAGE>
NOTES TO FINANCIAL STATEMENTS
- -----------------------------
Basis of Presentation
- ---------------------
The accounting and reporting policies of Peoples Bancorp Inc.
and Subsidiaries (the "Company") conform to generally accepted
accounting principles and to general practices within the
banking industry. The Company considers all of its principal
activities to be banking related. The preparation of the
financial statements in conformity with generally accepted
accounting principles requires management to make estimates and
assumptions that affect the amounts reported in the financial
statements and accompanying notes. Actual results could differ
from those estimates. The consolidated financial statements
include the accounts of the Company and its wholly-owned
subsidiaries. Significant intercompany accounts and
transactions have been eliminated. On April 13, 1998, the
Company declared a 3-for-2 stock split effective April 30, 1998.
Accordingly, all per share data have been restated to reflect
the dividend.
1. Acquisitions
- ----------------
The following text will include references to several
acquisition transactions that have affected and/or will affect
the Company's results of operations.
On December 12, 1997, the Company completed the purchase of
Gateway Bancorp, Inc. and its subsidiary, Catlettsburg Federal
Savings Bank ("Catlettsburg Federal"), of Catlettsburg,
Kentucky, for approximately $21.6 million in a combination of
cash of $6.2 million and 365,472 shares (before the 3-for-2
stock split issued in April 1998) of Company stock ("Gateway
Bancorp Acquisition" or "Catlettsburg Federal Acquisition").
Management has continued to operate Catlettsburg Federal as a
federal savings bank subsidiary of the Company. Catlettsburg
Federal had total assets of $64.3 million and deposits of $43.8
million at December 12, 1997.
On June 26, 1998, one of the Company's subsidiaries, The
Peoples Banking and Trust Company ("Peoples Bank") completed the
purchase of full-service banking offices located in the
communities of Point Pleasant (two offices), New Martinsville,
and Steelton, West Virginia ("West Virginia Banking Center
Acquisition") from an unaffiliated institution. In the
transaction, Peoples Bank assumed approximately $121.0 million
of deposits and purchased $8.3 million in loans.
2. New Accounting Pronouncements
- ---------------------------------
In June 1996, the Financial Accounting Standards Board ("FASB")
issued Statement of Financial Accounting Standards No. 125,
"Accounting for Transfers and Servicing of Financial Assets and
Extinguishments of Liabilities" ("SFAS No. 125") that provides
accounting and reporting standards for transfers of financial
assets and extinguishments of liabilities. SFAS No. 125
significantly changes the accounting rules for determining
whether a transfer represents a sale or secured borrowing
transaction. Portions of SFAS No. 125 were applicable for the
Company effective January 1, 1997 and did not have a material
impact on the Company's financial statements.
On January 1, 1998, the Company adopted the provisions of SFAS
No. 125 for securities lending, repurchase agreements, dollar
rolls and other similar secured transactions which had been
delayed until after December 31, 1997. The adoption of
Statement No. 125 as it relates to securities lending,
repurchase agreements, dollar rolls, and other similar
transactions did not have a material effect on the Company's
financial statements.
On January 1, 1998, the Company also adopted Statement of
Financial Accounting Standards No. 130, "Reporting Comprehensive
Income" ("SFAS No. 130"). SFAS No. 130 requires that certain
items of comprehensive income that are reported directly within
a separate component of stockholders' equity be displayed with
the same prominence as other financial statements. The adoption
of SFAS No. 130 had no impact on the financial position, results
of operations, stockholders' equity, or cash flows of the
Company.
<PAGE>
ITEM 2
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MANAGEMENT'S DISCUSSION AND ANALYSIS OF RESULTS
OF OPERATIONS AND FINANCIAL CONDITION
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SELECTED FINANCIAL DATA
- -----------------------
The following data should be read in conjunction with the
unaudited consolidated financial statements and the management
discussion and analysis that follows.
For the Three For the Six
Months Ended Months Ended
June 30, June 30,
1998 1997 1998 1997
SIGNIFICANT RATIOS
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Net income to:
- --------------
Average assets* 1.39% 1.30% 1.31% 1.27%
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Average shareholders' equity* 13.82% 14.80% 12.89% 14.46%
- ----------------------------------------------------------------------------
Net interest margin* 4.55% 4.75% 4.58% 4.73%
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Efficiency ratio* 51.24% 51.80% 51.24% 52.44%
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Average shareholders' equity
to average assets 10.11% 8.79% 10.20% 8.79%
- ----------------------------------------------------------------------------
Loans net of unearned interest
to deposits (end of period) 76.39% 85.35% 76.39% 85.35%
- ----------------------------------------------------------------------------
Allowance for loan losses to
loans net of unearned interest
(end of period) 1.72% 1.56% 1.72% 1.56%
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Capital ratios:
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Tier I capital ratio 10.58% 11.10% 10.58% 11.10%
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Risk-based capital ratio 11.83% 12.36% 11.83% 12.36%
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Leverage ratio 7.38% 7.68% 7.38% 7.68%
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Cash dividends to net income 27.32% 29.22% 28.88% 30.07%
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PER SHARE DATA
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Book value per share $14.27 $11.40 $14.27 $11.40
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Diluted earnings per share $0.47 $0.40 $0.87 $0.78
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Cash dividends per share $0.13 $0.12 $0.26 $0.24
- ----------------------------------------------------------------------------
* Net income to average assets, net income to average
shareholders' equity, net interest margin, and efficiency ratio
are presented on an annualized basis.
Net interest margin is calculated using fully tax equivalent net
interest income as a percentage of average earning assets.
Efficiency ratio is a ratio of non-interest expense (less
intangible amortization and non-direct operational expenses) as
a percentage of fully tax equivalent net interest income plus
non-interest income. All non-recurring items are removed from
the calculation of the Company's efficiency ratio.
<PAGE>
Introduction
- ------------
The following discussion and analysis of the consolidated
financial statements of the Company is presented to provide
insight into management's assessment of the financial results.
The Company's subsidiaries, The Peoples Banking and Trust
Company ("Peoples Bank"); The First National Bank of
Southeastern Ohio ("First National Bank"); Gateway Bancorp, Inc.
and its subsidiaries, Catlettsburg Federal Savings Bank
("Catlettsburg Federal") and Russell Federal Savings Bank
("Russell Federal"); and The Northwest Territory Life Insurance
Company ("Northwest Territory"), provide financial services to
individuals and businesses within the Company's market area.
Peoples Bank is chartered by the state of Ohio and subject to
regulation, supervision, and examination by the Federal Deposit
Insurance Corporation ("FDIC") and the Ohio Division of Banks.
First National is a member of the Federal Reserve System and
subject to regulation, supervision, and examination by the
Office of the Comptroller of the Currency ("OCC"). Catlettsburg
Federal and Russell Federal are members of the Federal Home Loan
Bank, and are subject to the regulation, supervision, and
examination by the Office of Thrift Supervision ("OTS"), and are
also subject to limited regulation by the Board of Governors of
the Federal Reserve System. The discussion and analysis should
be read in conjunction with the prior year-end audited
consolidated financial statements and footnotes thereto and the
ratios, statistics, and discussions contained elsewhere in this
Form 10-Q.
References will be found in this Form 10-Q to several
acquisition transactions that have affected and/or will affect
the Company's results of operations. On December 12, 1997, the
Company completed the purchase of Gateway Bancorp, Inc. and its
subsidiary, Catlettsburg Federal, of Catlettsburg, Kentucky, for
approximately $21.6 million in a combination of cash of $6.2
million and 365,472 shares of Company stock ("Gateway Bancorp
Acquisition" or "Catlettsburg Federal Acquisition"). Management
has continued to operate Catlettsburg Federal as a federal
savings bank subsidiary of the Company. Catlettsburg Federal
had total assets of $64.3 million and deposits of $43.8 million
at December 12, 1997. In January, 1998, the Company
reincorporated Russell Federal as a subsidiary of Gateway
Bancorp to align the Company's business units in northeast
Kentucky.
On June 26, 1998, Peoples Bank completed the purchase of
full-service banking offices located in the communities of Point
Pleasant (two offices), New Martinsville, and Steelton, West
Virginia ("West Virginia Banking Center Acquisition") from an
unaffiliated institution. In the transaction, Peoples Bank
assumed approximately $121.0 million of deposits and purchased
$8.3 million in loans.
RESULTS OF OPERATIONS
- ---------------------
Overview of the Income Statement
- --------------------------------
For the six months ended June 30, 1998, the Company earned
$5,176,000, a 25.4% increase from $4,127,000 in net income for
the same period last year. For the quarter ended June 30, 1998,
the Company earned $2,800,000, a 31.8% increase from $2,125,000
in the second quarter of 1997. In the second quarter, diluted
earnings per share increased $0.07 from $0.40 last year to $0.47
in 1998. For the first half of 1998, diluted earnings per share
reached $0.87, up $0.09 from $0.78 for the same period a year
earlier.
Second quarter net income was positively impacted by a net gain
of $427,000 ($278,000 after taxes, or $0.05 per diluted share)
on investment activity, primarily the exchange of certain
domestic equity securities, as well as losses from repositioning
of the investment portfolio. The Company's core earnings also
increased due to stronger earnings in existing business units
and additional revenue streams associated with recent
acquisitions. Due to earning asset growth, second quarter net
interest income totaled $8,204,000, up $1,188,000 (or 16.9%)
compared to the same period last year. For the six months ended
June 30, 1998, net interest income reached $16,248,000, an
increase of $2,388,000 (or 17.2%) compared to the same period a
year earlier.
In the first half of 1998, provision for loan losses totaled
$1,242,000 compared to $1,229,000 in 1997's first six months.
For the three months ended June 30, 1998, provision for loan
losses totaled $546,000, a decrease of $95,000 (or 14.8%)
compared to last year's second quarter. Reduction in loan loss
provision reflects the quality of the Company's loan portfolio
and recent stabilization of loan delinquencies.
Second quarter non-interest income increased $128,000 (or 8.8%)
to $1,590,000, due primarily to increased fiduciary fees from
the Company's Investment and Trust Division, deposit service
charges, and electronic banking fees. For the six months ended
June 30, 1998, non-interest income totaled $3,208,000, up
$328,000 (or 11.4%) compared to the same period in 1997.
Non-interest expense for the second quarter of 1998 totaled
$5,444,000, up $723,000 (or 15.3%) from last year. For the
first half of 1998, non-interest expense reached $10,858,000, an
increase of $1,432,000 (or 15.2%) compared to the first six
months of 1997. Recent growth in non-interest expense is due
primarily to the Company's recent acquisitions and related
expenses, such as salaries and benefits expense and amortization
of intangibles. In the second quarter of 1998, the Company's
efficiency ratio improved to 50.44% compared to 51.80% for the
same period last year. For the six months ended June 30, 1998,
efficiency ratio reached 51.24% compared to 52.44% for the same
period in 1997.
Management believes that a comparative approach to financial
reporting should include the discussion of "cash earnings",
which removes the after-tax impact of the amortization of
intangibles on the Company's results of operations and
facilitates comparison of the Company with competitors that make
acquisitions using pooling of interests accounting.
In the second quarter of 1998, intangible amortization expense
totaled $372,000 ($273,000 after taxes) compared to $240,000
($156,000 after taxes) for the same period a year earlier.
After adjusting for the after-tax effect of the amortization of
intangibles, diluted cash earnings per share for the quarter
ended June 30, 1998 was $0.52, up $0.09 from $0.43 in diluted
cash earnings per share in the second quarter of 1998.
For the six months ended June 30, 1998, intangible amortization
expense totaled $741,000 ($544,000 after taxes) compared to
$481,000 ($313,000 after taxes) for the same period a year
earlier. After adjusting for the after-tax effect of the
amortization of intangibles, diluted cash earnings per share for
the six months ended June 30, 1998 was $0.96, up $0.12 from
$0.84 in diluted cash earnings per share for the same period a
year earlier.
Management uses cash earnings as one of several ways to
evaluate the impact of acquisitions to profitability and the
Company's return on its investment. Increased amortization of
intangibles for the three months and six months ended June 30,
1998, also impacted tangible return on assets and equity.
Recent acquisitions have increased and will increase the
Company's amortization expense related to goodwill and other
intangibles and as a result, the purchase method of accounting
has affected earnings per share and other ratios. In order to
provide comparative earnings per share information, management
will continue to supplement future financial analysis with
discussion concerning cash earnings per share, as previously
defined.
Interest Income and Expense
- ---------------------------
Net interest income is the amount by which interest income on
earning assets exceeds interest paid on interest-bearing
liabilities. Interest earning assets include loans and
investment securities. Interest-bearing liabilities include
interest-bearing deposits and borrowed funds. Net interest
income remains the primary source of revenue for the Company.
Changes in market interest rates, as well as changes in the mix
and volume of interest-earning assets and interest-bearing
liabilities, impact net interest income.
When compared to prior year, increased operating earnings for
the quarter and six months ended June 30, 1998 can be attributed
primarily to growth of the Company's net interest income. The
Company's interest earning assets and interest-bearing
liabilities were positioned to generate increased net interest
income streams in the second quarter. Also, the recent
acquisitions provided additional earning assets to the Company,
generating increased incremental net interest income. Earning
asset growth strategies implemented in the second quarter of
1998 (in anticipation of the deposits acquired in the West
Virginia Banking Center Acquisition) also contributed to
incremental increases in net interest income.
As a result, net interest income continued to grow in the
second quarter of 1998, reaching $8,204,000 compared to
$7,016,000 in last year's second quarter, an increase of
$1,188,000 (or 16.9%). In the second quarter of 1998, total
interest income reached $15,735,000 while interest expense
totaled $7,531,00. Included in second quarter 1998 interest
income is $466,000 of tax-exempt income from investments issued
by states and political subdivisions. Since these revenues are
not taxed, it is more meaningful to analyze net interest income
on a fully-tax equivalent ("FTE") basis.
Net interest margin is calculated by dividing FTE net interest
income by average interest-earning assets and serves as a
performance measurement of the net interest revenue stream
generated by the Company's balance sheet. For the three months
ended June 30, 1998, net interest margin (on an FTE basis)
totaled 4.55% compared to 4.75% in the second quarter of 1997.
On a year-to-date basis through June 30, net interest margin in
1998 totaled 4.58% compared to 4.73% for the same period last
year.
Several factors have contributed to net interest margin
compression. The deposits acquired in the West Virginia Banking
Center Acquisition significantly increased the Company's earning
asset base in lower-yielding assets such as federal funds sold.
Management continues to analyze methods to redeploy the acquired
funds in an earning asset mix that is similar to that of the
Company's ratios before the West Virginia Banking Center
Acquisition.
Net interest margin also decreased due to competitive pressures
for loans and deposits in the Company's markets. In addition,
the recent thrift acquisitions have modestly changed the
Company's earning asset mix and lowered margins for comparative
purposes, due to the fact the Company's thrifts have primarily
invested in real estate loans, which typically do not generate
return on investment like other loan products such as commercial
and personal loans.
In the first quarter of 1998, the Company implemented a
pre-acquisition investment strategy to take advantage of
reasonably favorable asset yields on selected investment
securities (such as mortgage-backed securities and other
corporate investments). The pre-investment program totaled
approximately $49 million and was funded by short-term
borrowings, which were replaced late in the second quarter of
1998 with deposits assumed in the West Virginia Banking Center
Acquisition. The growth strategy resulted in modest compression
of the Company's net interest margin in the second quarter of
1998, due to yields on investment that are modestly lower than
typical loan yields.
The sudden growth of the Company's earning asset base will
continue to impact net interest margin in the second half of
1998 until the asset mix can be returned to a more appropriate
balance of profitability and risk. Due to the replacement of
short-term borrowings with the acquired deposits, management
expects net interest margin to stabilize at current levels for
the remainder of 1998.
Average loans grew $65.3 million (or 14.2%) from second quarter
1997 to second quarter 1998 which comprise the largest earning
asset component on the Company's balance sheet. Yield on
earning assets totaled 8.61% in the second quarter of 1998,
compared to 8.80% for the same period a year earlier. Although
loan yields are consistent from 1997 to 1998, the Company's
investment portfolio yield has dropped 34 basis points to 6.74%
in the second quarter of 1998, reflecting the replacement of
higher-yielding, maturing investments with lower-yielding
investments. In addition, the average balance of investment
securities has increased $73.4 million to $220.9 million due to
recent growth strategies and acquisitions.
Compared to the second quarter of 1997, cost of
interest-bearing liabilities increased five basis points to
4.68% in the second quarter of 1998. Costs increased due to
increases in the Company's use of short-term, higher-costing
funding sources used to fund the previously described
pre-acquisition strategy (in anticipation of the deposits
acquired in the West Virginia Banking Center Acquisition).
Management expects future interest costs to modestly decline in
future reporting periods due to the acquisition of lower
interest cost funding sources from the West Virginia Banking
Center Acquisition. Management will continue to monitor the
effects of net interest margin on the performance of the Company.
Please refer to the "Consolidated Average Balance Sheet and
Analysis of Net Interest Income" table included on page ____ for
a complete quantitative evaluation of the Company's net interest
margin.
Provision for Loan Losses
- -------------------------
In the second quarter of 1998, the Company's loan loss
provision decreased due to improvement in loan delinquencies and
net loan losses. For the three months ended June 30, 1998, the
Company recorded a provision for loan losses of $546,000, a
decrease of $95,000 (or 14.8%) from $641,000 in the second
quarter of 1997. On a year-to-date basis through June 30, loan
loss provision totaled $1,242,000 in 1998 compared to $1,229,000
last year. Loan growth in late 1997 and early 1998 was the
primary reason for higher provisions for loan losses in quarters
the first quarter of 1998.
Management expects modest internal loan growth for the
remainder of 1998. Due to this anticipated slowdown in loan
growth, combined with stabilized levels of delinquencies and net
loan losses, management believes that future 1998 provision
expense will remain approximately level with the provision
recorded in the second quarter of 1998. The duration of current
provision levels will be dependent on acceptable loan
delinquencies, portfolio risk, and general economic conditions
in our markets.
Non-Interest Income
- -------------------
The Company's non-interest income is generated from four
primary sources: income derived from fiduciary activities,
cost-recovery fees related to deposit accounts, electronic
banking revenues, and income generated by the Company's
insurance agency subsidiaries. For the quarter and six months
ended June 30, 1998, all of the Company's major sources of
non-interest income increased compared to the same period a year
earlier, representing management's commitment to continual
improvement of the Company's operating performance.
Second quarter non-interest income reached $1,590,000 in 1998,
an increase of $128,000 (or 8.8%) compared to the same period in
1997. For the six months ended June 30, 1998, non-interest
income totaled $3,208,000, up $328,000 (or 11.4%) compared to
last year.
The Investment and Trust Division of Peoples Bank continued its
strong earnings growth in 1998. The fee structure for fiduciary
activities is based primarily on the fair value of assets being
managed, which totaled over $500 million at June 30, 1998. As a
result of growth in market values and in the number of accounts
served, second quarter income generated from fiduciary
activities increased $38,000 (or 7.2%) to $566,000. On a
year-to-date basis through June 30, fiduciary activities revenue
increased $150,000 (or 14.5%) to $1,182,000 in 1998 compared to
the same period a year earlier. The Investment and Trust
Division continues to be a leader in fiduciary services in the
Company's lead market area.
Deposit account service charge income also increased in the
second quarter of 1998, reaching $597,000, compared to $540,000
for the quarter ended June 30, 1997, an increase of $57,000 (or
10.6%). On a year-to-date basis for the six months ended June
30, 1998, deposit account service charge income increased
$95,000 (or 9.0%) compared to 1997. The Company's fee income
generated from deposits is based on cost recoveries associated
with relevant services provided.
Electronic banking, including ATM cards, direct deposit
services, and debit card services, is one of the many services
offered by the Company. The recovery of costs through fees
associated with these products and services are beginning to
significantly impact the Company's non-interest income. For the
quarter ended June 30, 1998, total fees related to electronic
banking reached $158,000, up $113,000 (or 39.8%) compared to the
same period last year. For the six months ended June 30, 1998,
electronic banking revenues totaled $284,000, an increase of
$66,000 (or 30.3%) compared to the same period a year earlier.
These increases are due primarily to revenues related to the
Company's growing debit card program as well as non-customer
activity in the Company's network of ATM's, which has caused a
corresponding increase in ATM-related revenues.
Management will continue to explore new methods of enhancing
non-interest income. Both traditional and non-traditional
financial service products are being analyzed for inclusion in
the Company's product mix.
Net Gain on Securities
- ----------------------
In the second quarter of 1998, the Company recognized net gains
on securities of $427,000 ($278,000 after taxes, or $0.05 per
diluted share), compared to minimal net losses in the second
quarter of 1997. The Company had a net gain of $516,000
($336,000 after taxes) from an equity investment in a company
that was acquired in a merger transaction. In addition, the
Company recognized losses of $89,000 ($58,000 after taxes) from
sales of investment securities due to repositioning of the
investment portfolio. Management does not expect similar gains
or losses to occur during the remainder of 1998.
Non-Interest Expense
- --------------------
For the three months ended June 30, 1998, non-interest expense
totaled $5,444,000, an increase of $723,000 (or 15.1%) compared
to the same period last year. For the first half of 1998, total
non-interest expense reached $10,858,000, up $1,432,000 (or
15.2%) compared to 1997's first six months.
When comparing 1998 non-interest expense information to 1997,
it is important to consider the non-interest expense related to
recent acquisitions. Acquisitions, and the related salaries
and employee benefits and increased depreciation expense,
comprise the majority of the increase in non-interest expense in
1998. Non-operational items also contributed to the increase in
non-interest expense for the quarter and six months ended June
30, 1998. In particular, amortization of intangibles totaled
$372,000 (up 55.0%) and $741,000 (an increase of 54.1%) for the
quarter and six months ended June 30, 1998, respectively,
compared to $240,000 and $481,000 for the identical periods a
year earlier. Future amortization expense will increase due to
the completion of the West Virginia Banking Center Acquisition.
The Company considers the impact of intangible amortization when
evaluating potential acquisitions.
The Company's recent acquisitions also impacted non-interest
expense in other areas, as the Company continues to expand its
services and geographic area. Compared to 1997's second
quarter, salaries and benefits expense increased $233,000 (or
11.6%) to $2,249,000 in the second quarter of 1998. For the six
months ended June 30, salaries and benefits expense increased
$546,000 (or 13.2%) to $4,691,000 in 1998 compared to 1997's
first half of the year.
Recent acquisitions have increased the number of Company
employees, primarily customer service associates in the acquired
offices. At June 30, 1998, the Company had 363 full-time
equivalent employees, compared to 314 full-time equivalent
employees at December 31, 1997, and 304 full-time equivalent
employees at year-end 1996. While future salaries and benefit
expense will increase on a gross comparison basis due to the
associates retained in the West Virginia Banking Center
acquisition, management will continue to strive to find new ways
of increasing efficiencies and leveraging its resources while
concentrating on maximizing customer service.
Recent acquisitions also impacted net occupancy expenses, in
particular depreciation expense. For the quarter and six months
ended June 30, 1998, furniture and equipment expenses totaled
$446,000 and $891,000, respectively, up $70,000 (or 18.7%) and
$98,000 (or 12.4%) compared to 1997's identical reporting
periods. Net occupancy expense totaled $389,000 in the second
quarter of 1998, an increase of $83,000 (or 27.1%) compared to
the same period a year earlier. On a year-to-date basis through
June 30 and compared to last year, net occupancy expense
increased $123,000 (or 15.5%) to $891,000 in 1998. These
increases can be attributed primarily to the depreciation of the
assets purchased in recent acquisitions, completion of
construction projects to full-service offices in Athens and
Caldwell, Ohio, as well as Ashland, Kentucky. Increases are
also due to growth in depreciation of additional expenditures on
technology. The Company's increased investment in technology
and other customer-service enhancements will also impact
depreciation expense in the future.
Maintaining acceptable levels of non-interest expense and
operating efficiency are key performance indicators for the
Company. The Company and financial services industry use the
efficiency ratio (total non-interest expense less amortization
of intangibles and non-recurring items as a percentage of the
aggregate of fully-tax equivalent net interest income and
non-interest income) as a key indicator of performance. Gains
and losses on sales of investment securities are not included in
the calculation of the Company's efficiency ratio. In the
second quarter of 1998, the Company's efficiency ratio was
50.44% compared to 51.80% for the same period last year. For
the six months ended June 30, 1998, efficiency ratio improved to
51.24% compared to 52.44% for the same period in 1997.
Management expects the efficiency ratio to continue to modestly
improve throughout the remainder of 1998 and into 1999.
Return on Assets
- ----------------
For the quarter ended June 30, 1998, return on average assets
("ROA") reached 1.39% compared to 1.30% for the same period a
year earlier. The Company's increased operating income and net
gain on securities grew income more in the second quarter of
1998 than in recent reporting periods. For the six months ended
June 30, 1998, the Company's ROA totaled 1.31%, up modestly from
1.27% for the same period a year earlier.
The West Virginia Banking Center Acquisition significantly
increased the asset base of the Company near the end of the
second quarter of 1998. The effect of the West Virginia Banking
Center Acquisition on average assets will not fully impact the
Company until the third quarter of 1998, when average assets are
estimated to grow approximately $70 million to nearly $870
million.
The Company will be challenged to employ these new funds in a
manner that will produce acceptable returns on investment in a
short period of time. Management anticipates that ROA will
continue to modestly decrease in 1998. As management is
successful in transitioning the recently acquired funds sources
to an asset mix similar to that held by the Company in previous
reporting periods, ROA should return to pre-acquisition levels.
Return on Equity
- ----------------
The Company's return on average equity ("ROE") in the second
quarter of 1998 was 13.82%, compared to 14.80% for the same
period last year. For the first half of 1998, ROE totaled
12.89% compared to 14.46% in the first half of 1997.
ROE decreased in 1998 due primarily to issuance of
approximately $15.35 million of capital stock for the purchase
of Gateway Bancorp, Inc. in late 1997. As a result, the
increase in total equity had a significant impact on 1998's ROE
for the quarter and six months ended June 30, 1998. Management
expects ROE in 1998 to continue to be below prior year levels
until the Company leverages the capital of the Company to the
extent that capital was leveraged prior to the Gateway Bancorp
Acquisition.
The Company is considered well-capitalized under regulatory and
industry standards of risk-based capital and has experienced
growth through retention of increased earnings over the last
several quarters.
Federal Income Tax Expense
- --------------------------
Federal income taxes increased from $989,000 in the second
quarter of 1997 to $1,431,000 for the same period this year, an
increase of $442,000 (or 44.7%). On a year-to-date basis
through six months, the Company's income tax expense totaled
$2,611,000 in 1998, an increase of $684,000 (or 35.5%) compared
to 1997's first half. These increases are comparable to growth
in pre-tax income.
The Company's effective tax rate is approximately 33.8% for the
second quarter of 1998, compared to 31.8% for the same period
last year, primarily due to non-deductible expenses from the
Gateway Bancorp Acquisition.
FINANCIAL CONDITION
- -------------------
Overview of Balance Sheet
- -------------------------
Total assets have increased steadily from $758.2 million at
December 31, 1997 to $797.5 million at March 31, 1998, and to
$866.3 million at June 30, 1998. First quarter 1998 asset
growth occurred primarily due to pre-acquisition strategies
implemented in anticipation of the West Virginia Banking Center
Acquisition's associated $121.0 million in deposits and $8.3
million in loans. Strategies for managing asset growth were
implemented in the first quarter of 1998 within the Company's
thrift subsidiaries to leverage their strong capital positions
and enhance incremental interest income. On June 26, 1998, the
Company completed the West Virginia Banking Center Acquisition,
increasing assets approximately $70 million (or 8.7%) to $866.3
million at June 30, 1998.
Net cash received in the West Virginia Banking Center
Acquisition was redeployed into investment securities, which
increased nearly $35 million (or 19.9%) from year-end 1997 to
$209.0 million at June 30, 1998. Near the end of the second
quarter of 1998, the Company sold approximately $8 million of
investment securities to reposition the portfolio for enhanced
future earnings. Proceeds from these sales were reinvested
shortly thereafter in similar investment securities.
Since March 31, 1998, total loans increased $14.4 million (or
2.8%) to over $533 million, due primarily to the loans purchased
in the West Virginia Banking Center Acquisition. During the
same period, total deposits increased $82.3 million (or 13.4%),
due primarily to the net increase of deposits acquired in the
West Virginia Banking Center Acquisition combined with
maturities of short-term, higher interest rate time deposits.
At June 30, 1998, the Company had short-term borrowings of
$34.4 million compared to $49.2 million at March 31, 1998.
Purchases of certain investment securities were funded by
short-term Federal Home Loan Bank (FHLB) borrowings in
anticipation of paying off such advances upon receipt of the
deposits acquired in the West Virginia Banking Center
Acquisition.
As a result of the second quarter asset growth, the Company
leveraged its recently expanded capital base (through the
issuance of stock in the Gateway Bancorp, Inc. acquisition in
late 1997). Total equity reached $83.1 million at June 30,
1998, compared to $80.5 million at March 31, 1998, an increase
of $2.6 million (or 3.2%).
Cash and Cash Equivalents
- -------------------------
Cash and cash equivalents totaled $84.8 million at June 30,
1998, up $52.5 million from March 31, 1998, due to funds
received in the West Virginia Banking Center Acquisition. Funds
from the West Virginia Banking Center Acquisition were also
temporarily invested in federal funds sold, which grew to $52.8
million at June 30, 1998. These balances will decrease over
time through redeployment of those funding sources into higher
yielding assets such as loans or investment securities.
Management feels the liquidity needs of the Company are
satisfied by the current balance of cash and cash equivalents,
readily available access to traditional and non-traditional
funding sources, and the portion of the investment and loan
portfolios that mature within one year. These sources of funds
should enable the Company to meet cash obligations and
off-balance sheet commitments as they come due.
Investment Securities
- ---------------------
All of the Company's investment securities are classified as
available-for-sale. Management believes the available-for-sale
classification provides flexibility for the Company in terms of
selling securities as well as interest rate risk management
opportunities. At June 30, 1998, the amortized cost of the
Company's investment securities totaled $205.3 million.
At year-end 1997, investment securities totaled $174.3 million
and increased to $221.3 million at March 31, 1998 as a result of
previously described growth strategies implemented in the first
quarter of 1998. Investment securities totaled $209.0 million
at June 30, 1998, a decrease of $12.4 million (or 5.6%) for the
three months ended June 30, 1998. Near the end of the second
quarter of 1998, the Company sold approximately $8 million of
investment securities to reposition the portfolio for enhanced
future income streams. These securities were reinvested in
early third quarter.
As a direct result of the pre-acquisition investment strategy
and other growth strategies implemented by the Company, several
categories of investments within the investment portfolio had
significant growth. Variances since March 31, 1998 were caused
by the sales of securities late in the second quarter of 1998;
therefore comparisons between year-end 1997 and June 30, 1998
provide more meaningful information. At June 30, 1998,
investments in US Treasury securities and obligations of US
government agencies and corporations totaled $48.0 million, down
$4.0 million (or 7.7%) since year-end 1997. In the first half
of 1998, investments in mortgage-backed securities increased
$17.7 million (or 23.2%) to $94.0 million at June 30, 1998. The
Company's balances in investment obligations of states and
political subdivisions totaled $36.3 million at June 30, 1998,
an increase of $10.6 million (or 41.2%) since year-end 1997.
Corporate investments at June 30, 1998 totaled $30.7 million, an
increase of $10.5 million (or 52.0%) for the six months ended
June 30, 1998.
Management monitors the earnings performance and liquidity of
the investment portfolio on a regular basis through
Asset/Liability Committee (" ALCO") meetings. The group also
monitors net interest income, sets pricing guidelines, and
manages interest rate risk for the Company. Through active
balance sheet management and analysis of the investment
securities portfolio, the Company maintains sufficient liquidity
to satisfy depositor requirements and the various credit needs
of its customers. Management believes the risk characteristics
inherent in the investment portfolio are acceptable based on
these parameters.
Loans
- -----
The Company's lending is primarily focused in the mid-Ohio
Valley areas of southeastern Ohio, northern and western West
Virginia, as well as central Ohio and northeastern Kentucky
markets. The Company's lending consists principally of retail
lending, which includes single-family residential mortgages and
other consumer lending.
Loans totaled $533.3 million at June 30, 1998, an increase of
$14.4 million (or 2.8%) since March 31, 1998, and up $11.7
million (or 2.2%) since year-end 1997. At December 31, 1997,
the Company had $6 million of term federal funds sold invested
with unaffiliated financial institutions. These investments
were classified as loans for purposes of financial statement
reporting and generate interest income streams similar to
federal funds sold. Such investments were made in late 1997 to
enhance the Company's short-term net interest income at a fixed
rate. Of the $6 million of term federal funds held by the
Company at year-end 1997, $5 million matured in the first
quarter of 1998 and the remaining $1 million matured in the
second quarter of 1998.
The Company's loan portfolio grew in the second quarter due
primarily to loans purchased in the West Virginia banking Center
Acquisition. The Company purchased $8.3 million of commercial
and consumer loans in the June, 1998 acquisition. The following
table details total outstanding loans at the specified dates:
(dollars in thousands)
June 30, March 31, December 31,
1998 1998 1997
Commercial, financial,
and agricultural $ 179,666 $ 163,293 $ 159,035
Real estate, construction 12,709 16,724 19,513
Real estate, mortgage 228,661 227,358 228,689
Consumer 112,228 111,459 114,333
- --------------------------------------------------------------------------
Total loans $ 533,264 $ 518,834 $ 521,570
==========================================================================
Real estate loans to the Company's retail customers (including
real estate construction loans) continue to be the largest
portion of the loan portfolio, comprising 47.1% of the total
loan portfolio. Real estate loans totaled $241.4 million at
June 30, 1998, down $2.7 million (or 1.1%) since March 31, 1998.
Included in real estate loans are home equity credit lines
("Equilines"), which totaled $19.1 million at June 30, 1998, a
quarterly increase of $2.0 million (or 11.7%). The Company
continues to offer special fixed Equiline rates in its markets
and specially priced Equiline products in its new West Virginia
markets. Management believes the Equiline product is a
competitive product that has an acceptable return on investment,
after risk considerations, and anticipates these balances will
continue to grow from new customers and increased market
penetration. Residential real estate lending will continue to
represent a major focus of the Company due to the lower risk
factors associated with these types of loans and the opportunity
to provide additional products and services to these consumers
at attractive combined returns.
Strong growth in commercial, financial, and agricultural loans
("commercial loans") occurred in the second quarter of 1998, as
commercial loans increased $16.4 million (or 10.0%) to $179.7
million. Nearly half of this second quarter growth can be
directly attributed to commercial loans purchased in the West
Virginia Banking Center Acquisition. Economic conditions in the
Company's markets have provided quality credit opportunities.
Management will continue to focus on the enhancement and growth
of the commercial loan portfolio while maintaining appropriate
underwriting standards. Management expects commercial loan
demand to continue to be strong in several of the Company's
markets for the remainder of 1998 due to positive economic
conditions in those markets.
Consumer lending continues to be a vital part of the Company's
core lending. For the three months ended June 30, 1998,
consumer loan balances (excluding credit card loans) grew
modestly to $105.8 million, a quarterly increase of $0.7
million. The majority of the Company's consumer loan focus
continues to be in the indirect lending area. At June 30, 1998,
the Company had indirect loan balances of $69.5 million,
compared to $70.5 million at year-end 1997. Management is
pleased with the recent performance of the Company's consumer
loan portfolio, which can be attributed to the Company's
commitment to quality customer service and the continued demand
for indirect loans in the markets served by the Company.
Lenders use a tiered pricing system that enables the Company to
apply interest rates based on the corresponding risk associated
with the indirect loan. Although consumer debt delinquency is
increasing in the financial services industry (due mostly to
credit card debt), management's recent actions to reinforce the
Company's pricing system and underwriting criteria have tempered
indirect lending delinquencies and recently tempered the overall
growth of the indirect loan portfolio. Management plans to
continue its focus on the use of this tiered pricing system
combined with controlled growth of the indirect lending
portfolio in 1998, particularly in the new markets recently
entered by the Company.
Credit card balances remained relatively unchanged since
year-end 1997, totaling $6.5 million at June 30, 1998. In the
past, the Company has offered several new products to better
serve the credit needs of its customers, including a no-fee
credit card and increased credit limits to qualified customers.
Management will continue to evaluate new opportunities to serve
credit card customers.
Management anticipates loan growth in the remainder of 1998 to
be consistent with the first half of 1998. Projected loan
growth is expected in the recently entered West Virginia markets
as well, as management focuses on employing the acquired funding
sources in higher-yielding assets such as loans.
In addition, management will continue to research and analyze
various methods to satisfy the loan demand of the customers in
its various markets. Management also continues to research the
possibility of purchasing loans in packages or outside of the
Company's core markets as a means of providing increased returns
on its funding sources.
Loan Concentration
- ------------------
The Company does not have a concentration of its loan portfolio
in any one industry. Real estate lending (both mortgage and
construction loans) continues to be the largest component of the
loan portfolio, representing $241.4 million (or 45.3%) of total
loans. At year-end 1997, these loans comprised 47.6% of
outstanding loans. At June 30, 1998, commercial, financial, and
agricultural loans totaled $179.7 million (or 33.7%) of
outstanding loans, compared to 30.5% of outstanding loans at
December 31, 1997.
The Company's lending is primarily focused in the local
southeastern Ohio market and contiguous mid-Ohio Valley areas.
The Company's loan mix consists principally of retail lending,
which includes single-family residential mortgages and other
consumer loan products. Approximately 10% of the Company's
commercial loans are to lodging and lodging related companies.
These lending opportunities have arisen because of the recent
growth in the lodging industry and the need for additional
travel related services in certain areas in or contiguous to the
Company's markets, as well as the Company's ability to respond
to the needs of customers in this segment of the economy. The
credits have been subjected to the Company's normal commercial
loan underwriting standards and do not present more than the
normal amount of risk assumed in other lending areas.
Allowance for Loan Losses
- -------------------------
The allowance for loan losses as a percentage of loans
increased from 1.60% at December 31, 1997, to 1.72% at June 30,
1998. For the quarter and six months ended June 30, 1998, the
total dollar amount of the allowance for loan losses increased
$346,000 and $469,000, respectively, due to decreased net
chargeoffs. Total loan balances remained relatively unchanged
due to slower than expected internal loan growth, causing an
increase in the allowance as a percentage of total loans through
the first half of 1998. The following table presents changes in
the Company's allowance for loan losses for the three months and
six months ended June 30, 1998, and 1997, respectively:
Three Months Ended Six Months Ended
(in thousands) June 30, June 30,
1998 1997 1998 1997
------------------ ------------------
Balance, beginning
of period $ 8,825 $ 7,152 $ 8,356 $ 6,873
Allowance for loan
losses acquired in
Russell Federal Acquisition 120
Chargeoffs (342) (642) (706) (1,153)
Recoveries 142 147 279 229
- ------------------------------------------------------------------------------
Net chargeoffs (200) (495) (427) (924)
- ------------------------------------------------------------------------------
Provision for loan losses 546 641 1,242 1,229
- ------------------------------------------------------------------------------
Balance, end of period $ 9,171 $ 7,298 $ 9,171 $ 7,298
==============================================================================
For the three months ended June 30, 1998, provision for loan
losses totaled $546,000, while gross chargeoffs were $342,000
and recoveries amounted to $142,000. In the first half of 1998,
provision for loan losses totaled $1,242,000, while gross
chargeoffs were $706,000 and recoveries amounted to $279,000.
For the period ended June 30, 1998, net chargeoff activity was
down compared to both the quarter and six months for the same
periods a year earlier.
A significant portion of the Company's prior quarter's
chargeoffs occurred in the consumer loan portfolio. In the
first half of 1998, consumer loan chargeoffs tempered due to
continued focus of measurements of the Company's indirect
lending portfolio performance, including a review of
underwriting standards and more aggressive collection of past
due accounts. Management will continue to monitor the
performance of the consumer loan portfolio and focus efforts to
continue recent positive trends. Real estate and commercial
loan chargeoffs and recoveries were insignificant for the first
six months of 1998, demonstrating the quality of these
portfolios.
Nonperforming loans (those loans classified as nonaccrual, 90
days or more past due, and other real estate owned) as a
percentage of outstanding loans were 0.29% at June 30, 1998,
compared to 0.33% at December 31, 1997. Nonaccrual loans and
those loans 90 days past due totaled $1,103,000 and $478,000,
respectively, at June 30, 1998, compared to $1,220,000 and
$462,000, respectively, at year-end 1997. Management believes
the current level of nonperforming loans is acceptable and
reflects the overall quality of the Company's loan portfolio.
At June 30, 1998 the Company had an insignificant amount of
loans that were considered impaired. Management will continue
to monitor the status of impaired loans, including performing
and non-performing loans, in order to determine the appropriate
level of the allowance for loan losses.
Management continually monitors the loan portfolio through its
Loan Review Department and Loan Loss Reserve Committee to
determine the adequacy of the allowance for loan losses and
considers it to be adequate at June 30, 1998. Management
expects future loan loss provision in 1998 to be consistent with
second quarter 1998 expense, due to slower than expected loan
growth and a reduction in delinquencies in the loan portfolio
compared to 1997. Management believes the current allowance for
loan losses of 1.72% of total loans at June 30, 1998 to be
adequate to absorb inherent losses in the portfolio.
Funding Sources
- ---------------
The Company considers deposits, short-term borrowings, and
long-term borrowings when evaluating funding sources.
Traditional deposits continue to be the most significant source
of funds for the Company, reaching $698.1 million at June 30,
1998, a quarterly increase of $82.3 million (or 13.4%). The
West Virginia Banking Center Acquisition provided the Company
with significant additional funding sources, as detailed in the
following table (in thousands):
Non-interest bearing demand deposits $ 11,300
Interest-bearing transaction accounts 61,000
Time deposits (CD's and IRA's) 48,700
- ---------------------------------------------------
Total acquired deposits $ 121,080
===================================================
The Company assumed $121.0 million in core deposits from the
West Virginia Acquisition and has experienced minimal runoff of
those deposit balances in the months following the completion of
the acquisition. Management is pleased with the efforts of the
Company's associates to maintain these acquired deposit accounts
and look forward to expanding new customers' product and service
relationships.
In the second quarter of 1998, non-interest bearing deposit
balances grew nearly $9 million (or 13.7%) to $74.5 million, due
primarily to the deposits acquired in the West Virginia Banking
Center Acquisition. Management intends to continue its focus of
maintaining its recently enlarged base of lower-costing funding
sources.
During the first half of 1998, the Company's mix of
interest-bearing deposits modestly shifted to interest-bearing
transaction accounts from time deposit balances. In addition,
the Company experienced modest attrition in late first quarter
and in the second quarter of 1998 of maturing, short-term time
deposits, as rate sensitive customers strive to maximize their
investments by comparing rates offered by the Company's
competitors. The Company will continue to offer special
"relationship accounts" (both non-interest bearing and
interest-bearing) based on deposits in other products such as
CD's or IRA's.
Management believes that the deposit base remains the most
significant funding source for the Company and will continue to
concentrate on deposit growth and maintaining adequate net
interest margin to meet the Company's strategic goals.
In addition to traditional deposits, the Company accesses both
short-term and long-term borrowings to fund its operations and
investments. The Company's short-term borrowings consist of
federal funds purchased, corporate deposits held in overnight
repurchase agreements, and various FHLB borrowings. After
utilizing short-term FHLB borrowings to fund first quarter 1998
growth in anticipation of the West Virginia banking Center
Acquisition, the Company decreased total borrowings to $34.4
million, compared to $49.2 million at March 31, 1998.
The largest component of short-term borrowings consisted of
balances in corporate repurchase agreements, which totaled $29.8
million at June 30, 1998, compared to $30.7 million at year-end
1997. In late 1997, growth occurred due primarily to increases
in overnight repurchase agreement balances from a significant
commercial customer. Management expects current balances to
continue to modestly decrease throughout 1998 and, as a result,
overnight repurchase agreement balances will correspondingly
decrease to lower levels. In general, the Company will continue
to access short-term FHLB borrowings at various times to meet
liquidity needs as they arise.
In addition to traditional deposits and short-term borrowings,
the Company maintains long-term borrowing capacity with the
FHLB. This allows the Company to obtain reliable funds at fixed
and indexed rates for longer periods of time than other
traditional deposit products, creating the opportunity to match
longer term fixed rate mortgages and other extended-maturity
asset commitments against a similar funding source.
Long-term FHLB advances totaled $41.3 million at June 30, 1998,
a net quarterly decrease of $0.2 million since the previous
quarter-end. Since December 31, 1997, the Company increased
FHLB long-term advances approximately $15.7 million to fund
growth strategies designed to leverage the respective equity
bases of Russell Federal and Catlettsburg Federal.
In order to finance a portion of the total purchase price of
the Russell Federal Acquisition, the Company obtained a $3
million loan from an unaffiliated financial institution. The
remaining funds for the Russell Federal Acquisition were
generated from internal sources. Principal paydowns began on
the $3 million note in the first quarter of 1998 and will
continue semi-annually over the next several years. At June 30,
1998, the Company had $2.9 million in long-term debt related to
the Russell Federal Acquisition.
Capital/Stockholders' Equity
- ----------------------------
The Company's capital increased $3.2 million (or 4.0%) to $82.0
million at June 30, 1998.. In the second quarter of 1998, the
capital position of the Company grew approximately $2.1 million
(or 2.6%). For the three months ended June 30, 1998, the
Company had net income of $2.8 million and paid dividends of
$0.8 million, a dividend payout ratio of 27.32% of earnings.
For the first half of 1998, net income totaled $5.2 million and
dividends paid reached $1.5 million, a dividend payout ratio of
28.88% of net income, compared to 30.07% for the same period
last year. Management believes recent dividends represent a
balanced payout ratio for the Company and anticipates similar
payout ratios in future periods through quarterly dividends.
At June 30, 1998, the adjustment for the net unrealized holding
gain on available-for-sale securities, net of deferred income
taxes, totaled $2.4 million, unchanged for the six months ended
June 30, 1998. Since all of the investment securities in the
Company's portfolio are classified as available-for-sale, both
the investment and equity sections of the Company's balance
sheet are more sensitive to the changing market values of
investments. The combination of stable market interest rates
and recent purchases of investment securities (when the
difference between amortized cost and estimated fair value is
insignificant), have caused the equity adjustment to remain
relatively unchanged.
The Company has also complied with the standards of capital
adequacy mandated by the banking industry. Bank regulators have
established "risk-based" capital requirements designed to
measure capital adequacy. Risk-based capital ratios reflect the
relative risks of various assets banks hold in their portfolios.
A weight category of either 0% (lowest risk assets), 20%, 50%,
or 100% (highest risk assets) is assigned to each asset on the
balance sheet and to certain off-balance sheet commitments.
At June 30, 1998, the Company's and each of its banking
subsidiaries' risk-based capital ratios were above the minimum
standards for a well-capitalized institution. The Company's
risk-based capital ratio was 11.83%, above the minimum standard
of 8%. The Company's Tier 1 capital ratio of 10.58% also
exceeded the regulatory minimum of 4%. The Leverage ratio at
the end of the first quarter was 7.38% and also above the
minimum standard of 4%. The Company's capital ratios provide
quantitative data demonstrating the strength and future
opportunities for use of the Company's capital base. Management
continues to evaluate risk-based capital ratios and the capital
position of the Company and each of its banking subsidiaries as
part of its strategic decision process.
On June 15, 1998, the Company's Board of Directors announced
approval and implementation of a formal plan to purchase
treasury shares for use in its stock option plans. The
announcement superseded a previously announced stock repurchase
plan and serves as the basis for treasury purchases in
anticipation of the Company's projected stock option exercises.
The stock repurchase plan is based upon specific criteria
related to market prices and the number of shares expected to be
issued under the Company's stock option plans. Subsequent to
the announcement of the formal plan, the Company purchased
15,000 shares in the amount of $0.5 million near the end of the
second quarter of 1998. Management expects to purchase similar
share amounts in future quarters for use in its stock option
plans. Future changes, if any, to the Company's systematic
share repurchase program may be necessary to respond to the
number of shares expected to be reissued in the Company's stock
option plans. The Company intends to fund future treasury share
purchases with internally generated sources.
During early 1998, the Company initiated the Peoples Bancorp
Inc. Deferred Compensation Plan ("DCP") for the directors of the
Company and its subsidiaries, which is designed to recognize the
value to the Company of the past and present service of its
directors and encourage their continued service through
implementation of a deferred compensation plan. The DCP allows
directors to defer the fees earned for their service as Company
and subsidiary directors into deferred accounts that are either
invested in the Company's common stock or a time deposit, at the
specific director's discretion at the time of entering the DCP.
As a result and in accordance with accounting regulations, the
balances invested in Company stock in such accounts are reported
as treasury stock in the Company's financial statements. At
June 30, 1998, the DCP and its participants owned $0.6 million
of Company stock, which is a reduction to the equity balance of
the Company. Management does not expect the DCP to have a
material impact on future financial statements or results of
operations for the Company.
As a result of treasury stock purchases and DCP activity, the
Company had a treasury stock balance of $1.1 million at June 30,
1998. Due primarily to DCP activity, management expects the
Company's treasury stock balance to continue to modestly
increase in the future.
Liquidity
- ---------
Liquidity measures an organization's ability to meet cash
obligations as they come due. During the six months ended June
30, 1998, the Company generated cash from operating activities
and investing activities of $5.4 million and $59.1 million,
respectively. The major cash inflow was $99.0 million generated
from the West Virginia Banking Center Acquisition, which offset
cash used for purchase of investment securities of $84.8
million. Proceeds from maturities and ales of investment
securities totaled $31.2 million and $19.7 million ,
respectively, for the six months ended June 30, 1998.
The Company used cash flows of $18.6 million from financing
activities in the first half of 1998. The major outflow of cash
in the first six months of 1998 was $29.3 million decrease in
interest bearing deposits, mostly short-term, rate sensitive
time deposits. The Consolidated Statements of Cash Flows
presented on page 6 of the Company's Consolidated Financial
Statements provides analysis of cash flow activity.
Additionally, management considers that portion of the loan
portfolio that matures within one year and the maturities within
one year in the investment portfolio as part of the Company's
liquid assets. The Company's liquidity is monitored by the
ALCO, which establishes and monitors ranges of acceptable
liquidity. Management feels the Company's current liquidity
position is acceptable.
Interest Rate Sensitivity
- -------------------------
Static gap analysis measures the amount of repricing risk
embedded in the balance sheet at a point in time. It does so by
comparing the differences in the repricing characteristics of
assets and liabilities. A gap is defined as the difference
between the principal amount of assets and liabilities which
reprice within a specified time period.
At June 30, 1998, the Company's interest rate sensitivity
position, based on static gap analysis, was liability sensitive
in the short-term, decreasing in sensitivity for periods over
one year and up to five years. Up to one year, the Company is
liability sensitive due primarily to increases in funding
sources which are short-term, such as the FHLB borrowings and CD
specials previously mentioned. the funding sources acquired in
the West Virginia Banking Center Acquisition caused the
Company's balance sheet to become less liability sensitive due
to significant increases in federal funds sold, a highly liquid
and rate sensitive asset that reprices daily.
Management believes the Company's balance sheet is
theoretically insulated from significant increases or decreases
in interest rates due to the various variable rate assets and
liabilities. Management monitors the asset and liability
sensitivity through the ALCO and uses available dynamic data to
make appropriate strategic decisions.
In addition to the interest rate sensitivity schedule and
asset/liability repricing schedules, management also uses
simulation modeling and forecasting to determine the impact of a
changing rate environment and interest rate risk. This
combination provides dynamic information concerning the
Company's balance sheet structure in different interest rate
environments. When using simulation modeling, assumptions based
on anticipated market pricing are applied to interest-earning
assets and interest-bearing liabilities. These adjustments more
accurately indicate the interest rate risk of the Company.
Management believes the Company's current mix of assets and
liabilities provides a reasonable level of insulation from
significant fluctuations in net interest income and the
resulting volatility of the Company's earning base. Management
also considers various hedging products as a method of
minimizing the interest rate risk of the Company's balance
sheet. The Company's management reviews interest rate risk in
relation to its effect on net interest income, net interest
margin, and the volatility of the earnings base of the Company.
Effects of Inflation on Financial Statements
- --------------------------------------------
Substantially all of the Company's assets relate to banking and
are monetary in nature. Therefore they are not impacted by
inflation to the same degree as companies in capital intensive
industries in a replacement cost environment. During a period
of rising prices, a net monetary asset position results in loss
in purchasing power and conversely a net monetary liability
position results in an increase in purchasing power. In the
banking industry, typically monetary assets exceed monetary
liabilities. Therefore as prices have recently increased,
financial institutions experienced a decline in the purchasing
power of their net assets.
Future Outlook
- --------------
Results of operations for the quarter and six months ended June
30, 1998 represent enhanced financial performance through a
combination of external growth and enhanced core competencies
based on customer service and community presence. Management
continues to challenge its employees to improve critical banking
processes to provide the customer with the highest quality
products and services in the most efficient manner. In
addition, management has identified and will continue to analyze
key performance areas which quantitatively measure the relative
performance of the Company compared to prior year results.
Management is pleased with recent efforts to transition the
offices and associates acquired in the West Virginia Banking
Center Acquisition. The geographic expansion is a natural
extension of the Company's presence in the mid-Ohio Valley. The
Company will be challenged in the third and fourth quarters of
1998 to employ the large inflow of cash associated with the
acquisition in assets that provide acceptable return on
investment without compromising the Company's performance and
capital ratios.
Management intends to invest a portion of the acquired funds in
loans in the new geographic markets as well as in the Company's
established markets, although overall loan activity has tempered
in recent periods. Management will continue to analyze the
viability of purchasing loans to enhance revenues of the
Company. Future loan growth will depend on the Company's
ability to serve existing markets, penetrate new markets through
acquisition, and serve selected customers outside traditional
geographic markets.
Management is satisfied with the retention of the acquired core
deposit base and looks forward to continuing the development of
the markets in Point Pleasant, New Martinsville, and Steelton,
West Virginia. These markets represent additional opportunities
to provide superior customer service and strengthen the
Company's position in those markets. One of the Company's top
priorities for the remainder of 1998 will be the management and
direction of the West Virginia Banking Center Acquisition
offices with existing full-service banking centers to create a
united financial service provider for the customers of Mason and
Wetzel Counties in West Virginia and surrounding areas of West
Virginia and Ohio. Management expects to enhance non-interest
income streams in the second half of 1998 and beyond due to the
acquired deposits and associated cost-recovery fees of those
deposits.
In August, 1998, the Company will open a full-service banking
center in Parkersburg, West Virginia. For years, the Company
has provided financial products and services to the customers of
Wood County (across the Ohio River from Washington County in
Ohio). Management is excited by the opportunity to enhance
these customer relationships through its first physical presence
in south Parkersburg of Wood County. The Parkersburg office
will offer traditional banking services such as loans and
deposits, investment and trust services, and insurance products,
and is expected to provide strong opportunities to penetrate the
Parkersburg, West Virginia, market.
Managing the delicate balance between expansion into new
markets and development of new products and services will also
challenge the Company in 1998 and beyond. The financial
services environment remains dynamic as merger and consolidation
continues to change traditional banking services and the
competitors the Company must face. Customers continue to strive
for better, faster, more efficient methods of banking, and as a
result, the Company has invested in technology and dedicated
resources that provide the means for those customers to perform
banking functions through their personal computers 24 hours a
day. "PC banking" continues to be an integral part of the
Company's core service delivery process.
Loan loss provisions in 1998 will be based on loan delinquency
trends, economic conditions, and anticipated loan growth. Based
on the most recent analysis, management expects future loan
provisions to approximate that recorded in the second quarter of
1998. Management believes the Company's reserve for loan losses
is adequate for the risks inherent in the portfolio and believes
the reduction in loan loss provision is a reflection of the
overall quality of the Company's loan portfolio and market
conditions. Future financial performance will depend directly
on the timing of anticipated loan growth and other factors.
Future operating results will be determined by the ability of
the Company to capture lending opportunities in expanded market
areas or make similar investments with acceptable risk and
return on investment indicators.
Mergers and acquisitions remain a viable strategic alternative
for the continued growth of the Company's operations and scope
of customer service. Future acquisitions, if they occur, may
not be limited to specific geographic location or proximity to
current markets. Acquisitions will depend upon financial
service opportunities that strengthen the core competencies
developed by the Company. Management considers mergers and
acquisitions to be a viable method of enhancing the Company's
earnings potential and will continue to pursue appropriate
business opportunities as they develop.
Management concentrates on several key performance indicators
to measure and direct the performance of the Company. While
past results are not an indication of future earnings,
management feels the Company is positioned to leverage its
recent equity growth and maintain current levels of performance
through the remainder of 1998.
Impact of the Year 2000 Issue
- -----------------------------
Many companies across various industries have dedicated efforts
to analyze the much-publicized "Year 2000" issue, which is the
result of computer programs being written using two digits
rather than four to define the applicable year. Any of the
Company's computer programs or hardware that have date-sensitive
software or embedded chips may recognize a date of "00" as the
year 1900 rather than the year 2000. This could result in
system failure or miscalculations causing disruptions of
operations, including, among other things, the inability to
process transactions or engage in similar normal business
activities.
Management has implemented plans to address Year 2000 issues
and their impact to its business, operations, and relationships
with customers, suppliers, and other third parties. The Company
primarily relies on third party vendors for all critical
processing systems software. Based on recent assessments, the
Company determined that it will be required to modify or replace
portions of its software and work with software vendors so that
those systems will properly utilize dates beyond December 31,
1999. Management presently believes that with modifications and
replacement of existing hardware and software, the Year 2000
issue can be mitigated. However, if such modifications and
replacements are not made, or are not completed timely, the Year
2000 issue could have a material impact on the operations of the
Company.
The Company is also assessing the credit, liquidity and
counterparty trading risks that may be posed by customers who
encounter Year 2000-related problems. These problems may result
from the failure of a customer to properly remediate its own
systems and from Year 2000 problems that are not addressed by
the customer's suppliers and clients. The Company has amended
credit policies to include an assessment of Year 2000-related
risks for material new customers and plans to complete the
initial assessment of customer-related risks for material
customers by September 30, 1998.
Management plans to resolve the Year 2000 issue in five phases
as follows: awareness, assessment, renovation, validation, and
implementation. To date, the Company has completed its
assessment of all material systems that could be affected by the
Year 2000 issue and addressed the extent to which its operations
are vulnerable should its software fail to be Year 2000
compliant. The completed assessment indicated that most of the
Company's significant information technology systems could be
affected. Banking regulators have issued guidelines and
deadlines detailing what they expect banks to do in order to
insure Year 2000 preparedness. The Company is following these
guidelines and expects to meet the deadlines defined by the
regulators. As a part of this process, the Company is also
developing contingency plans for all mission-critical systems,
which it will implement in the event any of these systems fail
to function. Contingency plans include a combination of manual
processes and utilization of systems (which have already been
Year 2000 validated and implemented) that are completely
independent from the Company's core information systems.
Management estimates that half of its potential Year 2000
issues originate in the Company's core banking system (software
provided by a third-party vendor). The Company's core banking
system supports approximately 50% of the information processing
for the Company. This single system software provides
accounting for the Company, as well as loan and deposit
products. This core banking system has been certified as Year
2000 compliant by the vendor and the Information Technology
Association of America. To date, the Company has not completed
its due diligence of the core banking system and expects to
perform a complete review by December 31, 1998. Since the
software has essentially been Year 2000 compliant for several
years, management is confident that validation and
implementation will occur by year-end 1998 due to the fact the
system currently supports calculations beyond the Year 2000.
The remaining information technology systems such as the
automated teller machine (ATM) network software, document
processing and retrieval system, the accounting system for the
Investment and Trust Division software, etc., are expected to
fully validated and implemented by June 30, 1999. The ATM
network software and the Investment and Trust Division software
system have also been certified compliant by their respective
vendors. Year 2000 compliant versions of other vendor-supported
software are scheduled for release to the Company during the
third and fourth quarters of 1998.
Management expects to replace the Company's internal operating
systems (on existing hardware) in the third quarter of 1998. No
additional replacement costs are estimated since the Company's
annual maintenance contracts cover upgrades such as those
related to Year 2000. Immediately following the core operating
system's replacement, management intends to begin renovation of
material internal systems and expects to complete such
renovation by year-end 1998. Management does not consider
internal software systems to be significant to the overall
operations of the Company.
In general, for its information technology exposures, to date
the Company is 70% complete on the renovation phase for all
material systems and expects to complete software reprogramming
and replacement no later than December, 1998. After completing
the reprogramming and replacement of these systems, the
Company's plans call for testing and implementing its
information technology systems. To date, the Company
approximates that it has completed 20% of its testing and has
not implemented any renovated systems. As soon as management
completes its due diligence of the core banking system in the
second half of 1998, the Company will have implemented
approximately 50% of renovated systems. Completion of the
testing phase is expected by year-end 1998, with all renovated
systems fully implemented by June 30, 1999.
The Company's systems interface with systems supported and
maintained by other third-party providers, such as ATM and
Automated Clearing House (ACH) networks. The Company has
scheduled testing of significant interfaces during the second
half of 1998.
The Company has queried its important suppliers, such as
utility companies, that do not involve system interface. To
date, the Company is not aware of any problems that would
materially impact operations, although the Company has no means
of ensuring that these organizations will be Year 2000 ready.
The inability of these parties to complete their Year 2000
resolution process could materially impact the Company, as well
as other businesses and consumers.
The Company expenses Year 2000 project costs as incurred. The
total out-of-pocket cost of the Year 2000 compliance project is
not expected to be greater than $200,000 and, therefore, is
immaterial to the Company's results of operations or financial
position. This estimate includes human resource expense which
are approximated between $75,000 to $100,000 (and estimated to
be 25% complete to date).
The Company plans to complete the Year 2000 modifications are
based on management's best estimates, which were derived
utilizing assumptions of future events including the continued
availability of certain resources, and other factors. Estimates
on the status of completion and the expected completion dates
are based on costs incurred to date compared to total expected
costs. However, there can be no guarantee that these estimates
will be achieved and actual results could differ materially from
those plans. Specific factors that might cause such material
differences include, but are not limited to, the availability
and cost of personnel trained in this area, the ability of
vendors to deliver Year 2000 compliant software as planned, the
ability to locate and correct all relevant computer codes, and
similar uncertainties.
"Safe Harbor" Statement under the Private Securities Litigation
Reform Act of 1995
- ---------------------------------------------------------------
The statements in this Form 10-Q which are not historical fact
are forward looking statements that involve risks and
uncertainties, including, but not limited to, the interest rate
environment, the effect of federal and state banking and tax
regulations, the effect of technological changes, the effect of
third party or Company failures to achieve timely remediation of
Year 2000 issues, the effect of economic conditions, the impact
of competitive products and pricing, and other risks detailed in
the Company's Securities and Exchange Commission filings.
<PAGE>
PEOPLES BANCORP INC. AND SUBSIDIARIES
- -------------------------------------
CONSOLIDATED AVERAGE BALANCE SHEET AND ANALYSIS OF NET INTEREST INCOME
- ----------------------------------------------------------------------
<TABLE>
<CAPTION>
For the Three Months For the Six Months
Ended June 30, Ended June 30,
1998 1997 1998 1997
Average Yield/ Average Yield/ Average Yield/ Average Yield/
Balance Rate Balance Rate Balance Rate Balance Rate
<S> <C> <C> <C> <C> <C> <C> <C> <C>
ASSETS
- ------
Securities:
Taxable $188,561 6.55% $125,614 6.87% $177,358 6.56% $125,755 6.85%
Tax-exempt 32,362 7.85% 21,640 8.32% 29,000 7.93% 22,067 8.34%
- --------------------------------------------------------------------------------------------------
Total 220,923 6.74% 147,254 7.08% 206,358 6.75% 147,822 7.07%
- --------------------------------------------------------------------------------------------------
Loans:
Commercial 179,631 9.37% 139,199 9.54% 177,172 9.45% 136,975 9.53%
Real estate 232,808 8.68% 206,211 8.49% 232,681 8.69% 203,817 8.44%
Consumer 110,908 10.50% 112,674 10.34% 111,693 10.51% 110,946 10.38%
- --------------------------------------------------------------------------------------------------
Total loans 523,347 9.30% 458,084 9.26% 521,546 9.34% 451,738 9.25%
Less: Allowance
for loan loss (9,047) (7,269) (8,860) (7,194)
- --------------------------------------------------------------------------------------------------
Net loans 514,300 9.47% 450,815 9.41% 512,686 9.50% 444,544 9.40%
Interest-bearing
deposits 4,440 5.03% 681 3.48% 5,482 6.06% 1,377 4.29%
Federal funds sold 3,554 5.69% 6,273 5.53% 6,307 5.55% 7,195 5.43%
- --------------------------------------------------------------------------------------------------
Total earning
assets 743,217 8.61% 605,023 8.80% 730,833 8.67% 600,938 8.76%
Other assets 58,510 48,451 56,926 48,097
- --------------------------------------------------------------------------------------------------
Total assets $801,727 $653,474 $787,759 $649,035
==================================================================================================
LIABILITIES AND EQUITY
- ----------------------
Interest-bearing
deposits:
Savings $ 91,989 2.99% $ 85,203 3.03% $ 91,547 3.03% $ 84,118 3.04%
Interest-bearing
demand deposits 140,887 3.52% 124,962 3.43% 139,337 3.57% 122,301 3.38%
Time 299,806 5.43% 268,207 5.53% 311,142 5.48% 267,468 5.52%
- --------------------------------------------------------------------------------------------------
Total 532,682 4.50% 478,372 4.54% 542,026 4.58% 473,887 4.53%
Borrowed funds:
Short-term 68,161 5.30% 19,647 4.35% 55,233 5.21% 19,610 4.19%
Long-term 44,025 5.85% 30,851 6.26% 37,128 5.94% 31,133 6.28%
- --------------------------------------------------------------------------------------------------
Total 112,186 5.51% 50,498 5.52% 92,361 5.49% 50,743 5.47%
Total interest
bearing liabilities 644,868 4.68% 528,870 4.63% 634,387 4.71% 524,630 4.62%
Non-interest bearing
deposits 65,243 60,189 63,990 59,768
Other liabilities 10,561 6,987 9,054 7,562
- --------------------------------------------------------------------------------------------------
Total liabilities 720,672 596,046 707,431 591,960
Stockholders' equity 81,055 57,428 80,328 57,075
- --------------------------------------------------------------------------------------------------
Total liabilities
and equity $801,727 $653,474 $787,759 $649,035
==================================================================================================
Interest income to
earning assets 8.61% 8.80% 8.67% 8.76%
Interest expense to
earning assets 4.06% 4.05% 4.09% 4.03%
- --------------------------------------------------------------------------------------------------
Net interest margin 4.55% 4.75% 4.58% 4.73%
==================================================================================================
Interest income and yields presented on a fully tax-equivalent
basis using a 35% tax rate in 1998 and a 34% tax rate in 1997.
</TABLE>
<PAGE>
PART II
- -------
ITEM 1: Legal Proceedings.
None.
ITEM 2: Changes in Securities.
None.
ITEM 3: Defaults upon Senior Securities.
None.
ITEM 4: Submission of Matters to a Vote of Security Holders.
None.
ITEM 5: Other Information.
As discussed in the Company's Proxy Statement for the 1998
Annual Meeting of Shareholders, any qualified shareholder of the
Company who intends to submit a proposal to the Company at the
1999 Annual Meeting of Shareholders must submit such proposal to
the Company not later than November 6, 1998 to be considered for
inclusion in the Company's Proxy Statement and form of Proxy
(the "Proxy Materials") relating to that Meeting. If a
shareholder intends to present a proposal at the 1999 Annual
Meeting of Shareholders, but has not sought the inclusion of
such proposal in the Company's Proxy Materials, such proposal
must be received by the Company prior to January 20, 1999 or the
Company's management proxies for the 1999 Annual Meeting will be
entitled to use their discretionary voting authority should such
proposal then be raised, without any discussion of the matter in
the Company's Proxy Materials.
ITEM 6: Exhibits and Reports on Form 8-K.
a) Exhibits:
EXHIBIT INDEX
-------------
Exhibit Number Description Exhibit Location
- -------------- -------------------------------- ----------------
2 Office Purchase and Assumption *
between Peoples Bank and Community
Trust Bancorp, Inc., dated January
26, 1998; and Letter Agreement
between Peoples Bank and Community
Trust Bancorp, Inc., dated June 4,
1998.
11 Computation of Earnings Per Share. *
27 Financial Data Schedule. EDGAR electronic
filing only.
*Filed herewith
b) Reports on Form 8-K: None.
<PAGE>
SIGNATURES
- ----------
Pursuant to the requirements of the Securities Exchange Act of
1934, the registrant has duly caused this report to be signed on
its behalf by the undersigned thereunder duly authorized.
PEOPLES BANCORP INC.
Date: August 14, 1998 By: /s/ ROBERT E. EVANS
Robert E. Evans
President and Chief Executive Officer
Date: August 14, 1998 By: /s/ JOHN W. CONLON
John W. Conlon
Chief Financial Officer
EXHIBIT INDEX
-------------
PEOPLES BANCORP INC. QUARTERLY REPORT ON FORM 10-Q
FOR PERIOD ENDED JUNE 30, 1998
--------------------------------------------------
Exhibit Number Description Exhibit Location
- -------------- --------------------------------- ----------------
2 Office Purchase and Assumption *
between Peoples Bank and Community
Trust Bancorp, Inc., dated January
26, 1998; and Letter Agreement
between Peoples Bank and Community
Trust Bancorp, Inc., dated June 4,
1998.
11 Computation of Earnings Per Share. *
27 Financial Data Schedule. EDGAR electronic
filing only.
*Filed herewith
- ----------------------------------------------------------------------------
OFFICE PURCHASE AND ASSUMPTION AGREEMENT
- ----------------------------------------------------------------------------
By and Between
COMMUNITY TRUST BANCORP, INC.
208 North Mayo Trail
P.O. Box 2947
Pikeville, Kentucky 415012947
and
THE PEOPLES BANKING AND TRUST COMPANY
138 Putnam Street
Marietta, Ohio 45750
Dated as of the 20th day of January, 1998
1. Purchase and Assumption...............................................1
1.1 Purchase and Sale of Assets....................................1
1.2 Transfer of Assets.............................................2
1.3 Acceptance and Assumption......................................4
1.4 Payment of Funds...............................................5
2. Conduct of the Parties Prior to Closing...............................8
2.1 Covenants of SELLER............................................8
2.2 Covenants of BUYER.............................................9
2.3 Covenants of All Parties......................................10
3. Representations and Warranties.......................................10
3.1 Representations and Warranties of SELLER......................10
3.2 Representations and Warranties of BUYER.......................12
4. Actions Respecting Employees and Pensions and Employee Benefit Plan..13
4.1 Employment of employees.......................................13
4.2 Terms and Conditions of Employment............................13
4.3 Compliance with Law...........................................14
4.4 Actions to be Taken by SELLER.................................15
5. Conditions Precedent to Closing......................................15
5.1 Conditions to SELLER's Obligations............................15
5.2 Conditions to BUYER's Obligations.............................16
5.3 NonSatisfactions of Conditions Precedent......................18
5.4 Waivers of Conditions Precedent...............................18
6. Closing..............................................................18
6.1 Closing and Closing Date......................................18
6.2 SELLER's Actions at Closing...................................18
6.3 BUYER's Actions at the Closing................................20
6.4 Methods of Payment............................................21
6.5 Availability of Closing Documents.............................21
6.6 Effectiveness of Closing......................................22
7. Certain Transitional Matters.........................................22
7.1 Transitional Action By BUYER..................................22
7.2 Transitional Actions By SELLER................................24
7.3 Overdrafts and Transitional Action............................28
7.4 ATMs and Debit Cards..........................................28
7.5 Environmental Matters.........................................29
7.6 Effect of Transitional Action.................................32
8. General Covenants and Indemnification................................32
8.1 Confidentiality Obligations of BUYER..........................32
8.2 Confidentiality Obligations of SELLER.........................33
8.3 Indemnification By SELLER.....................................33
8.4 Indemnification By BUYER......................................34
8.5 Solicitation of Customers by BUYER Prior to Closing...........35
8.6 Solicitation of Customers by SELLER After the Closing.........35
8.7 Further Assurances............................................35
8.8 Operation of the Offices......................................36
8.9 Information After Closing.....................................37
8.10 Individual Retirement Accounts................................37
8.11 Covenant Not to Compete.......................................37
8.12 Nonsolicitation of Employees..................................37
9. Termination..........................................................38
9.1 Termination By Mutual Agreement...............................38
9.2 Termination By SELLER.........................................38
9.3 Termination By BUYER..........................................39
9.4 Effect of Termination.........................................40
10. Deposits.............................................................40
11. Miscellaneous Provisions.............................................41
11.1 Substitution of Parties.......................................41
11.2 Expenses......................................................41
11.3 Certificates..................................................41
11.4 Termination of Representations and Warranties.................41
11.5 Waivers.......................................................42
11.6 Notices.......................................................42
11.7 Parties in Interest: Assignment: Amendment....................43
11.8 Headings......................................................43
11.9 Terminology...................................................43
11.10 Flexible Structure............................................45
11.11 Press Releases................................................45
11.12 Entire Agreement..............................................45
11.13 Governing Law.................................................45
11.14 Counterparts..................................................45
11.15 Tax Matters...................................................45
OFFICE PURCHASE AND ASSUMPTION AGREEMENT
This Office Purchase and Assumption Agreement is entered into
and effective as of this ____ day of January, 1998, by and
between The Peoples Banking and Trust Company ("BUYER"), an Ohio
banking corporation, with its principal office at 138 Putnam
Street, Marietta, Ohio 45750, and Community Trust Bancorp, Inc.
("SELLER"), a Kentucky corporation, with its principal office at
208 North Mayo Trail, P.O. Box 2947, Pikeville, Kentucky
415012947.
Recitals:
---------
A. WHEREAS, pursuant to that certain Office Purchase and
Assumption Agreement dated as of December 30th, 1997, and that
certain Letter Agreement dated as of December 30, 1997, all by
and among Bank One, West Virginia, National Association and Bank
One Wheeling Stuebenville, National Association (collectively,
"Banc One") and SELLER (collectively, the "Banc One Agreement"),
Banc One agreed to sell and assign to SELLER certain assets and
liabilities associated with offices of Banc One (the "Acquired
Assets and Liabilities"). (The closing of the transactions
contemplated by the Banc One Agreement is referred to in this
Agreement as the "Banc One Closing.") BUYER acknowledges the
SELLER may elect to sell the Acquired Assets and Liabilities
related to the Offices which are the subject of this Agreement
through a wholly owned subsidiary financial institution.
B. WHEREAS, BUYER desires to purchase and assume from SELLER,
and SELLER desires to sell and assign to BUYER, certain Acquired
Assets and Liabilities associated with offices of SELLER on the
terms and subject to the conditions contained in this Agreement.
Agreement:
----------
Now, Therefore, in consideration of the premises and for other
good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, BUYER and SELLER hereby agree as
follows:
1. Purchase and Assumption.
- ----------------------------
1.1 Purchase and Sale of Assets. At the Closing, as defined
in Section 6.1 hereof (the "Closing"), BUYER shall purchase and
acquire, and SELLER shall sell and assign, the real estate and
other assets described in Section 1.2 hereof (collectively, the
"Assets") all of which have been used in and/or relate to
business conducted by Banc One immediately prior to the Banc One
Closing at its branch offices known as and located at the sites
described in Schedules A and B attached hereto and incorporated
herein by reference (such real estate and other assets to be
acquired by Seller at the Banc One Closing occurring immediately
prior to the Closing), pursuant to the terms and conditions set
forth herein and subject to exceptions, if any, set forth
herein. The foregoing offices are hereinafter sometimes
collectively referred to as the "Offices" and each,
individually, sometimes as an "Office." The transactions
contemplated by this Agreement and the purchase of assets and
assumption of liabilities provided for herein is sometimes
referred to herein as the "Acquisition." Except as otherwise
expressly provided herein, the sale of the Assets is without
warranty or guarantee, express or implied, on an "asis, whereis"
basis, and without recourse. Except as otherwise expressly
provided herein, the Assets are sold without any representation
or warranty whatsoever by SELLER.
1.2 Transfer of Assets. Subject to the terms and conditions
of this Agreement, SELLER shall assign, transfer, convey and
deliver to BUYER, on and as of the Closing on the Closing Date,
as defined in Section 6.1 hereof, the Assets, which shall
include the following:
(a) Owned Real Estate. All of SELLER's right, title and
interest in and to the real estate described in attached
Schedule A on which an Office is situated, together with all of
SELLER's rights in and to all improvements thereon; and all
easements rights, privileges and appurtenances associated
therewith (the "Owned Real Estate");
(b) Leased Real Estate. A good and valid leasehold estate in
the real estate described in attached Schedule B and created by
certain lease agreement(s) (individually and collectively the
"Third Party Lease") relating to the referenced Offices (the
"Leased Real Estate"), specifically identified in Schedule B
attached hereto and incorporated herein by reference;
(c) Furniture and Equipment. All of SELLER's right, title
and interest in and to the furniture, fixtures and equipment
located at the Offices as of the Closing Date (the "Fixed
Assets"), a preliminary listing of which is contained in
Schedule C attached hereto and incorporated herein by reference,
specifically excluding, among other items, teller calculators
and other teller and platform equipment and systems, CRTs,
controllers and printers, signs and stands, printed supplies and
documents and other materials bearing any Banc One or affiliate
name and/or logo, network communications equipment and related
devices, any artwork, ATM surrounds, and marketing fixtures. A
final listing of specific items included in the Fixed Assets
will be provided to BUYER prior to the Closing.
(d) Safe Deposit Business. All right, title and interest of
SELLER in and to the safe deposit business conducted at the
Offices as of the close of business on the Closing Date, and all
of Seller's right, title and interest in and to the amount of
safe deposit box rent allocated to Seller under the Banc One
Agreement;
(e) Cash on Hand. All cash on hand at the Offices as of the
close of business on the Closing Date including vault cash,
petty cash, ATM cash and tellers' cash;
(f) Prepaid Expenses. All prepaid expenses recorded or
otherwise reflected on the books of Banc One as of August 31,
1997, or incurred in the ordinary course of business thereafter,
as being attributable to the Offices as of the close of business
on the day immediately preceding the Closing Date, but only to
the extent attributable to the Assets sold, assigned or
transferred to BUYER by SELLER pursuant to this Agreement and
only to the extent arising by reason of BUYER's use or ownership
of such Assets after the close of business on the Closing Date.
SELLER shall not give any written consent to Banc One regarding
any prepaid expenses incurred by Banc One with respect to the
Offices subsequent to August 31, 1997 without the prior written
consent of BUYER;
(g) Office Loans. All right, title and interest in and to
all those loans which, as of the close of business on the
Closing Date, are (i) secured in whole or in part by Deposit
Accounts (as hereinafter defined) attributable to an Office (the
"Deposit Account Loans"), (ii) commercial or other loans
attributable to an Office (if any, the "Other Loans") or (iii)
automatically created as the result of an overdraft of a Deposit
Account pursuant to a preapproved overdraft protection program
offered by Banc One immediately prior to the Banc One Closing
(except for those overdraft protection loans which are charged
to credit card accounts not transferred to SELLER at the Banc
One Closing, the "Overdraft Loans"). The Deposit Account Loans,
Other Loans, and Overdraft Loans sold and assigned to BUYER
hereunder will be identified as of the Closing Date and listed
in Schedule H attached hereto and incorporated herein by
reference and will constitute all of the Deposit Account Loans,
Other Loans and Overdraft Loans acquired by SELLER at the Banc
One Closing with respect to the Offices (hereinafter referred to
individually and collectively as the "Office Loans").
Notwithstanding anything contained in this Agreement to the
contrary, transfer of the Office Loans will be subject to the
terms and conditions set forth in Schedule S attached hereto and
incorporated herein by reference. Except as otherwise expressly
provided herein, the transfer of the Office Loans will be made
without recourse, without any representation, warranty, or
guarantee of any kind, express or implied, and without any
reserve for loan losses;
(h) Records of the Offices. All records and documents
related to the Assets transferred or liabilities assumed by
BUYER as may exist and are available and maintained at the
Offices (in whatever form or medium maintained by Banc One
immediately prior to the Banc One Closing) including, but not
limited to, those relating to (i) the Deposit Accounts and (ii)
the promissory notes and documents and instruments evidencing
the Liens (as defined in Schedule S annexed hereto and made a
part hereof) relating to the Office Loans; and
(i) Contracts or Agreements. All of SELLER's right, title
and interest in and to the maintenance and service agreements
related to the Offices, as listed on Schedule D annexed hereto
and made a part hereof (the "Assumed Contracts"), provided the
same have been assigned by Banc One to Seller at the Banc One
Closing.
1.3 Acceptance and Assumption. Subject to the terms and
conditions of this Agreement, on and as of the Closing on the
Closing Date, BUYER shall:
(a) Assets. Receive and accept all of the Assets assigned,
transferred, conveyed and delivered to BUYER by SELLER pursuant
to this Agreement, including those identified in Section 1.2 above.
(b) Deposit Liabilities. Assume and thereafter discharge,
pay in full and perform all of SELLER's obligations and duties
relating to the "Deposit Liabilities" (as hereinafter defined).
The term "Deposit Liabilities" is defined herein as all of
SELLER's obligations, duties and liabilities of every type and
character relating to all deposit accounts, other than (i) KEOGH
accounts and (ii) deposit accounts securing any loan of SELLER
which is not an Office Loan, for which BUYER assumes no
liability, which, as reflected on the books of Banc One as of
the close of business on the date of the Banc One Closing, are
attributable to the Offices. The deposit accounts referred to in
the immediately preceding sentence (hereinafter the "Deposit
Accounts") include, without limitation, passbook, statement
savings, checking, Money Market, and NOW accounts, Individual
Retirement Accounts for which SELLER and/or Banc One has not
received, on or before the Closing Date, the written advice from
the account holder of such account holder's objection or failure
to accept BUYER as successor custodian ("IRA's") and
certificates of deposit. The "obligations, duties and
liabilities" referred to in the first sentence of this Section
1.3(b) include, without limitation, the obligation to pay and
otherwise process all Deposit Accounts in accordance with
applicable law and their respective contractual terms and the
duty to supply all applicable reporting forms for periods
following the Closing Date including, without limitation, IRS
Form 1099 reports relating to the Deposit Accounts to be filed
and provided after the Closing Date relating to interest accrued
after the Closing Date. With regard to each IRA included within
the Deposit Accounts, BUYER shall also assume the appropriate
plan pertaining thereto and the trustee or custodial arrangement
in connection therewith.
(c) Liabilities Under Leases/Safe Deposit Business. Assume
and thereafter fully and timely perform and discharge, in
accordance with their respective terms, all of the liabilities
and obligations of SELLER arising after the Closing Date with
respect to:
(1) all leases listed on Schedules B and E to this
Agreement (including safe deposit leases if any) and sold, assigned or
transferred to BUYER by SELLER pursuant to this Agreement;
(2) the safe deposit business of the Offices including,
but not limited to, the maintenance of all necessary facilities for
the use of safe deposit boxes by the renters thereof during the
periods for which such persons have paid rent therefor in
advance to Banc One, which liability or obligation SELLER has
assumed at the Banc One Closing for the period from and after
the date of the Banc One Closing, subject to the provisions of
the applicable leases or other agreements relating to such
boxes; and
(3) all safekeeping items and agreements listed on
Schedule E to this Agreement and delivered to BUYER by SELLER pursuant to
this Agreement, including, but not limited to, all applicable
safekeeping agreements, memoranda, or receipts so delivered to
BUYER by SELLER hereunder.
(d) Other Liabilities. Fully and timely perform and
discharge, as the same may be or become due, the Assumed
Contracts, the Third Party Lease for the Leased Real Estate and
all additional liabilities, obligations and deferred expenses of
Banc One as of the date of the Banc One Closing that are assumed
by SELLER and reflected on the books of Banc One as being
attributable to an Office as of the close of business on the
date of the Banc One Closing, but only to the extent
attributable to the Assets sold, assigned or transferred to
BUYER by SELLER pursuant to this Agreement and only to the
extent arising by reason of BUYER's use or ownership of such
Assets after the close of business on the Closing Date. No
additional material liabilities and obligations of Banc One
incurred subsequent to the date of this Agreement shall be
assumed by BUYER unless the prior written consent of BUYER has
been obtained prior to the incursion of the material liability
or obligation by Banc One.
(e) Other Obligations. Fully and timely perform its
obligations relative to employees of the Offices, if any, as set
forth hereinafter.
1.4 Payment of Funds. Subject to the terms and conditions
hereof, at the Closing:
(a) Consideration. In consideration of BUYER's assumption of
the Deposit Liabilities and its other agreements herein, SELLER
shall make available and transfer to BUYER, in the manner
specified in Section 6.4 hereof, funds equal to the sum of (i)
the aggregate balance of all Deposit Accounts (including
interest posted or accrued to such accounts as of the close of
business on the day immediately preceding the Closing Date) and
(ii) the amount of deferred expenses identified in Section
1.3(d) hereof assumed by SELLER under the Banc One Agreement,
and less an amount equal to the sum of:
(1) the amount of cash on hand at the Offices transferred
to BUYER as of the close of business on the Closing Date; and
(2) the net aggregate book value of the Offices, as
determined for purposes of the Banc One Agreement; and
(3) the net aggregate book value of the furniture, fixtures
and equipment being transferred to BUYER, as determined for
purposes of the Banc One Agreement; and
(4) Nine and seven tenths percent (9.7%) of the average
aggregate "Core Deposits" (as hereinafter defined) of the
Offices as of the close of business for the five (5) business
day period ending on the Banc One Closing Date; provided,
however, in the event that the average principal balance of
Deposit Liabilities relating to any Office, for the five(5)
business day period immediately preceding the Banc One Closing
Date, shall decline more than five percent (5%) in principal
balance from the average level of Deposit Liabilities relating
to any such Office for the period commencing five (5) business
days immediately preceding the first public disclosure of this
Agreement, then the Acquisition Consideration as applicable to
the Offices subject to the disclosure, shall be calculated on
the basis of the Deposit Liabilities for that Office for the
period commencing five (5) business days preceeding the date of
such disclosure. The term "Core Deposits" shall mean the
aggregate balance of all Deposit Liabilities of the Offices
(which aggregate balance shall include interest posted to such
accounts as of the close of business on the Closing Date). The
amount calculated as set forth herein as of the close of
business on the Closing Date is hereinafter called the
"Acquisition Consideration;" and
(5) the amount of prepaid expenses described in Section
1.2(f) of this Agreement, prorated as of the close of business
on the day immediately preceding the Closing Date; and
(6) the book value of the Office Loans together with
accrued and unpaid interest thereon computed as of the close of business
on the Closing Date; and
(7) the sum of $10,000.00 for each ATM or CBCT located at
the Offices (which price does not include the "surrounds" for
such ATM or BCT).
In the event that the sum of items (1) through (7) above should
be in excess of the aggregate amount to be transferred by SELLER
pursuant to the first paragraph of this Section 1.4(a), the full
amount of such excess shall constitute an amount due from BUYER
to SELLER, and shall be paid to SELLER at the Closing in the
manner specified in Section 6.4 hereof. The parties shall
execute a Preliminary Settlement Statement at the Closing and a
Final Settlement Statement postclosing in accordance with
Section 6.4 herein, in substantially the same form as set forth
in Schedules P and Q attached hereto and incorporated herein.
(b) Reimbursement of Certain Expenses. All other expenses
relating to the Offices (i) due and payable at times after the
Closing Date for periods prior to the close of business on the
Closing Date or (ii) paid prior to the close of business on the
Closing Date for periods following the Closing Date, including
the prepaid expenses described in Section 1.2(f) hereof and
deferred expenses described in Section 1.3(d) hereof, including
without limitation, real estate taxes and assessments which are
a lien but not yet due and payable, utility payments, payments
due on leases assigned, payments due on assigned service and
maintenance contracts, FDIC insurance premiums, and similar
expenses relating to the Offices that have been prorated to
SELLER under Section 1.04(b) of the Banc One Agreement shall be
expenses for which the BUYER shall make reimbursement to SELLER.
(c) Expenses Relating to Real Property and other Assets. The
transfer (or conveyance) fees relating to the Owned Real Estate
and the costs, fees and expenses of all title commitments, title
guaranties and title examinations relating to the procurement of
the Title Commitments related to the Owned Real Estate and the
Leased Real Estate referred to in Sections 2.1(a) and 5.2(g)
herein, shall be allocated to, and shall be borne, solely and
exclusively by BUYER. The costs, fees and expenses relating to
the premiums for all title insurance policies (net of the costs
of all title commitments, guaranties and examinations),
recording costs and other similar costs, fees and expenses, if
any, relating to the sale and transfer of the Owned Real Estate
or the transfer of SELLER's interest in the Leased Real Estate
including, but not limited to, any conveyance fees, taxes,
recording costs and other similar fees and expenses relating to
the sale and transfer of any other Assets, shall be allocated
to, and shall be borne, solely and exclusively, by BUYER. BUYER
shall reimburse SELLER at the Closing for all of the costs, fees
and expenses allocated to BUYER pursuant to this Section 1.4(c)
but paid by SELLER in the manner specified in Section 6.4
herein. If this transaction does not close by virtue of a breach
of this Agreement, the breaching party shall be responsible for
and shall, as appropriate, reimburse the other party for its
expenses as set forth herein. If this transaction does not close
for any other reason, each party shall reimburse the other party
upon termination of this Agreement for such party's share of
expenses so that each party shall pay the same share of expenses
as it would have paid at Closing.
2. Conduct of the Parties Prior to Closing.
- ---------------------------------------------
2.1 Covenants of SELLER. SELLER hereby covenants to BUYER
that, from the ate hereof until the Closing, it will do or cause
the following to occur:
(a) Title Commitments for Real Estate. SELLER shall use
reasonable efforts to cause Banc One to deliver to BUYER, at
BUYER's expense, with respect to the Owned Real Estate and
Leased Real Estate no later than thirty (30) days after the date
of this Agreement, a commitment or commitments (the "Title
Commitments") having an effective date as near as feasible to
the date of delivery of such Title Commitments from a title
insurance company designated by Banc One and reasonably
satisfactory to BUYER, to issue to BUYER as soon as practicable
after the Closing Date, as applicable, an American Land Title
Association (ALTA) owners (Form B, 1970, Rev 1984) and/or
leasehold title insurance (1975 Form) policies having an
effective date as of the Closing Date in an amount satisfactory
to BUYER (but not in excess of the appraised value of such
properties or, as applicable, the amount of the leasehold
interest to be transferred to BUYER pursuant to the Third Party
Lease) covering the Owned Real Estate and Leased Real Estate,
subject to the exceptions specified in the Title Commitments. If
title to all or part of the Owned Real Estate or Leased Real
Estate is unmarketable or is subject to any defect, lien,
encumbrance, easement, condition, restriction or encroachment
other than the Permitted Exceptions as defined in Section
10.8(c) herein, then BUYER shall provide written notice thereof
to SELLER. SELLER shall in turn notify Banc One of such notice.
Banc One shall have thirty days after written notice thereof
from BUYER, to elect to remedy or remove any such defect, lien,
encumbrance, easement, condition, restriction or encroachment
but, if Banc One does not, BUYER may elect to attempt to cure or
remove such defect or encumbrance or other maker, for a period
of thirty days thereafter. If such defect or encumbrance or
other manner is not cured, then, in addition to any other rights
which BUYER may have hereunder, BUYER shall have the right with
respect to the relevant Office (i) to declare this Agreement
terminated by written notice to SELLER, or (ii) to waive any
objection to such defect or encumbrance or other matter in which
event such defect, encumbrance, or other matter shall be deemed
to be a Permitted Exception. The Owned Real Estate is being sold
by SELLER to BUYER hereunder free and clear of all liens,
claims, encumbrances and rights of tenants in possession except
for the Permitted Exceptions, and the conveyance by Limited
Warranty Deed to be delivered by SELLER pursuant hereto shall be
subject only to the Permitted Exceptions.
(b) Required Authorizations. SELLER shall obtain and procure
all necessary internal corporate approvals and authorizations,
if any, required by SELLER to enable it to fully perform all
obligations imposed on it hereunder which must be performed by
it at or prior to the Closing.
(c) Condemnation. If prior to Closing all or any portion of
the Owned Real Estate or Leased Real Estate is taken or is made
subject to eminent domain or other governmental acquisition
proceedings, then SELLER, upon receipt of such notice from Banc
One under the Banc One Agreement, shall promptly notify BUYER
thereof, and BUYER may either complete the Closing and receive
the proceeds paid or payable on account of such acquisition
proceedings, or terminate this Agreement as to such Office and
related assets and liabilities. If BUYER terminates this
Agreement, both parties shall thereupon be relieved from all
further obligations hereunder as to such Office and related
assets and liabilities.
(d) Covenants of Banc One. The covenants of Banc One set
forth in Section 2.01 of the Banc One Agreement shall, for
purposes of this Agreement, inure to the benefit of BUYER, and
SELLER hereby covenants and agrees to enforce such covenants at
the written request of BUYER, provided that BUYER shall pay all
costs and expenses (including, but not limited to, attorney's
fees and expenses) associated with the enforcement by SELLER of
such covenants.
2.2 Covenants of BUYER. BUYER hereby covenants to SELLER
that, from the date hereof until the Closing, it will do or
cause the following to occur:
(a) Regulatory Applications. BUYER shall prepare and submit
for filing, at no expense to SELLER, any and all 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 Acquisition to be
consummated at the Closing as contemplated in Section 6.1 herein
and for BUYER to operate the Offices following the Closing.
BUYER shall provide SELLER with a draft copy of each
application, filing, registration, and notification for SELLER's
approval prior to filing, which approval by SELLER will not be
unreasonably withheld or delayed. Such applications will be
submitted to SELLER in draft form not later than February 9,
1998 and filed by BUYER without delay following SELLER's
approval of such applications; provided, however, that in no
event will such applications be filed later than March 9, 1998.
Thereafter, BUYER shall pursue all such applications, filings,
registrations, and notifications diligently and in good faith,
and shall file such supplements, amendments, and additional
information in connection therewith as may be reasonably
necessary for the Acquisition to be consummated at such Closing
and for BUYER to operate the Offices following the Closing.
BUYER shall deliver to SELLER 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). BUYER shall also deliver to SELLER a copy of each
material notice, order, opinion and other item of correspondence
received by BUYER from such federal and state authorities
(except for any confidential portions thereof) and shall advise
SELLER, at SELLER's request, of developments and progress with
respect to such matters.
(b) Required Authorizations. BUYER shall obtain and procure
all necessary corporate and other approvals and authorizations,
if any, required on its part to enable it to fully perform all
obligations imposed on it hereunder which must be performed by
it at or prior to the Closing.
(c) Satisfaction of Conditions. BUYER shall not voluntarily
undertake any course of action inconsistent with the
satisfaction of the requirements or the conditions applicable to
it, or its agreements, undertakings, obligations, or covenants
set forth in this Agreement, and it shall promptly do all such
reasonable acts and take all such reasonable measures as may be
appropriate to enable it to perform as early as reasonably
possible the agreements, undertakings, obligations, and
covenants herein provided to be performed by it, and to enable
the conditions precedent to SELLER's obligations to consummate
the Closing of the Acquisition to be fully satisfied.
Additionally, BUYER shall not knowingly, directly or through any
existing or future subsidiary or affiliate, take any action that
would be in conflict with, or result in the denial, delay,
termination, or withdrawal of, any of the regulatory approvals
referred to in this Agreement.
2.3 Covenants of All Parties. SELLER hereby covenants to
BUYER, and BUYER hereby covenants to SELLER that, from the date
hereof until the Closing, such party shall, subject to each
party's respective rights and obligations under this Agreement,
cooperate fully with the other party in attempting to obtain all
consents, approvals, permits, or authorizations which 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 transactions described and contemplated in this
Agreement.
3. Representations and Warranties.
- ------------------------------------
3.1 Representations and Warranties of SELLER. SELLER
represents and warrants to BUYER as follows:
(a) Good Standing and Power of SELLER. SELLER is a
corporation duly organized, validly existing, and in good
standing under the laws of the Commonwealth of Kentucky and a
registered bank holding company under the Bank Holding Company
Act of 1956, as amended, with corporate power to own its
properties and to carry on its business as presently conducted.
Banking subsidiaries of SELLER are insured depository
institutions as defined in the Federal Deposit Insurance Act and
applicable regulations thereunder.
(b) Authorization of Agreement. The execution and delivery
of this Agreement, and the transactions contemplated hereby,
have been duly authorized by all necessary corporate action on
the part of SELLER, and this Agreement is a valid and binding
obligation of SELLER.
(c) Effective Agreement. 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 the consummation of the transactions contemplated hereby,
will not conflict with, result in the breach of, constitute a
violation or default, result in the acceleration of payment or
other obligations, or create a lien, charge or encumbrance,
under any of the provisions of Articles of Incorporation or
ByLaws of SELLER, under any judgment, decree or order, under any
law, rule, or regulation of any government or agency thereof, or
under any material contract, material agreement or material
instrument to which SELLER is subject, where such conflict,
breach, violation, default, acceleration or lien would have a
material adverse effect on the Assets or SELLER's ability to
perform its obligations hereunder.
(d) Title to Real Estate And Other Assets. SELLER shall
convey, or cause to be conveyed, the Owned Real Estate to BUYER
by delivery at the Closing of a limited warranty deed conveying
such title subject only to the Permitted Exceptions. The Third
Party Lease will be assigned to BUYER by delivery of an
assignment conveying such leasehold interest to BUYER at the
Closing.
(e) Deposit. Attached as Schedule G hereto is a true and
accurate schedule of all Deposit Accounts (including individual
retirement accounts) domiciled at the Offices, prepared by Banc
One as of a date within thirty (30) days prior to the date of
this Agreement, listing by Office and by category the amount of
all deposits and the interest rates and maturity dates
associated with such deposits, and indicating the deposits that
constitute Core Deposits.
(f) Office Loans. Attached hereto as Schedule H is a true
and accurate Schedule of all Office Loans, including accrued and
unpaid interest thereon, computed as of a date within thirty
(30) days prior to the date of this Agreement, excluding
however, such Office Loans which are more than 30 days past due
for payment of principal or interest.
(g) Personal Property. Schedule C is a preliminary listing
of Fixed Assets owned by Banc One and located at the Offices,
which is subject to nonmaterial change prior to the Closing
Date. A final listing of Fixed Assets will be provided to BUYER
by SELLER prior to the Closing Date.
(h) Assumed Contracts and Third Party Lease. Schedule D is a
true and accurate schedule of all Assumed Contracts related to
the Offices.
(i) FIRPTA. SELLER is not a "foreign person" within the
meaning of the Internal Revenue Code 1445.
(j) For purposes of this Section 3.1, the "knowledge" of
SELLER shall mean the actual knowledge of the President of
SELLER.
(k) Representations and Warranties of Banc One. The
representations and warranties of Banc One set forth in Section
3.01 of the Banc One Agreement shall, for purposes of this
Agreement, inure to the benefit of BUYER, and upon BUYER's
written request, SELLER hereby agrees to exercise on behalf of
BUYER any remedies available as a result of any such
representation or warranty being untrue or breached, provided
that, BUYER shall pay all cost and expenses (including, but not
limited to, attorneys' breached fees and expenses) associated
with the exercise by SELLER of such remedies.
3.2 Representations and Warranties of BUYER. BUYER
represents and warrants to SELLER as follows:
(a) Good Standing and Power of BUYER. BUYER is a corporation
duly organized, validly existing, and in good standing under the
laws of the State of Ohio, as amended, with corporate power to
own its properties and to carry on its business as presently
conducted. The banking subsidiaries of BUYER are insured
depository institutions, as defined in the Federal Deposit
Insurance Act and applicable regulations thereunder.
(b) Authorization of Agreement. The execution and delivery
of this Agreement, and the transactions contemplated hereby,
have been duly authorized by all necessary corporate action on
the part of BUYER, and this Agreement is a valid and binding
obligation of BUYER.
(c) Effective Agreement. 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,
result in the breach of, constitute a violation or default,
result in the acceleration of payment or other obligations, or
create a lien, charge or encumbrance, under any of the
provisions of the Articles of Incorporation or ByLaws of BUYER,
under any judgment, decree or order, under any law, rule or
regulation of any government or agency thereof, or under any
material agreement, material contract or material instrument to
which BUYER is subject, where such conflict, breach, violation,
default, acceleration or lien would have a material adverse
effect on BUYER's ability to perform its obligations hereunder.
4. Actions Respecting Employees and Pensions and Employee Benefit Plan.
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4.1 Employment of employees. BUYER shall extend offers of
employment, as of the Closing Date, to such employees of the
Offices listed in Schedule R as may be employed by Banc One at
the Offices as of the date of the Banc One Closing (including,
without limitation, those employees who on the Closing Date are
on family and medical leave, military leave, or personal or
pregnancy leave and who elect to return to work not later than
one (1) year following the Closing Date; individually and
collectively the "Leave Employees" herein) for positions
entailing responsibilities in effect at Banc One as of the
Closing Date, and for a base salary not less than that paid by
Banc One as of the Closing Date, Employees accepting employment
with BUYER, including but not limited to the Leave Employees,
are referred to herein individually and collectively as the
"Transferred Employees". In the event that BUYER shall transfer
(except in a comparable position and for comparable compensation
to an office not more than 25 miles from the Office at which the
Transferred Employee is employed as of the Closing Date, or at
the request of the Transferred Employee), terminate employment
of, or reduce the base salary of, a Transferred Employee (the
"Terminated Employee") between the Closing Date and the date
which is one (1) year from the Closing Date, other than for
cause, BUYER shall pay to the Terminated Employee a sum equal to
the greater of that which the Terminated Employee would have
received on the date of such transfer, termination, or reduction
in salary under the severance plan of Banc One applicable to the
Terminated Employee as of the date hereof and set forth in
Schedule R or the severance plan of BUYER otherwise applicable
to the Terminated Employee as of the date of such transfer,
termination, or reduction in base salary. Such payment shall be
due and owing the Terminated Employee on the date of such
transfer, termination, or reduction in salary. Nothing contained
in this Agreement shall restrict or prohibit BUYER and any
Transferred Employee from entering into an agreement
satisfactory to both BUYER and the Transferred Employee
providing for resolution of matters set forth in this section.
4.2 Terms and Conditions of Employment. Except as otherwise
provided explicitly in this Agreement, the terms of employment
for each Transferred Employee shall be determined solely by
BUYER's policies, procedures, and programs; provided, however,
that each Transferred Employee shall be provided employment
subject to the following terms and conditions:
(a) Base salary shall be at least equivalent to the rate of
base salary paid by Banc One to such Transferred Employee as of
the close of business on the day prior to the Closing Date.
(b) Except as otherwise specifically provided herein,
Transferred Employees shall be provided employee benefits that
are no less favorable in the aggregate than those provided to
similarly situated employees of BUYER. BUYER shall provide such
Transferred Employees with credit for the Transferred Employee's
period of service with Banc One (including any service credited
from predecessors by merger or acquisition to Banc One) towards
the calculation of eligibility and vesting for such purposes as
vacation, severance and other benefits and participation and
vesting in BUYER's qualified pension and/or Profit sharing
401(k) plans, as such plans may exist (but, except as set forth
in (e) below and for vacation, not for purposes of benefit
accruals, including, without limitation, funding of accrued
pension or profit sharing plans for such Transferred Employees
with respect to any period prior to the Closing Date).
(c) Each Transferred Employee shall be eligible to
participate in the medical, dental, or other welfare plans of
BUYER, as such plans may exist, on and after the Closing Date,
and any preexisting conditions provisions of such plans shall be
waived with respect to any such Transferred Employees.
(d) With respect to any Transferred Employee who is also a
Leave Employee, upon conclusion of his or her shortterm
disability or temporary leave of absence, subject to the terms
and conditions of the BUYER's plans and policies and applicable
law, each Transferred Employee on such leave shall receive the
salary and vacation benefits in effect when he or she went on
leave, shall otherwise be treated as a Transferred Employee,
and, to the extent practicable, shall be offered by the BUYER
the same or a substantially equivalent position to his or her
position with Banc One prior to having gone on leave.
(e) Except as provided herein, Banc One shall pay,
discharge, and be responsible for (i) all salary and wages
arising out of employment of the Transferred Employees through
the Closing Date, and (ii) any employee benefits (except
vacation, sick, and personal days accrued but unused by the
Transferred Employee through the Closing Date which BUYER hereby
agrees to grant to such Transferred Employees following the
Closing Date) arising under Banc One's employee benefit plans
and employee programs prior to the Closing Date (but not
including medical benefits, if any, to Transferred Employees who
retire after the Closing Date), including benefits with respect
to claims incurred prior to the Closing Date but reported after
the Closing Date and benefits inuring to Leave Employees prior
to any election by such Leave Employees to return to work with
BUYER. From and after the Closing Date, BUYER shall pay,
discharge, and be responsible for all salary, wages, and
benefits arising out of or relating to the employment of the
Transferred Employees by BUYER from and after the Closing Date,
including, without limitation, all claims for welfare benefits
plans incurred on or after the Closing Date. Claims are incurred
as of the date services are provided notwithstanding when injury
or illness may have occurred.
4.3 Compliance with Law. BUYER agrees that it shall comply
with any and all applicable requirements, if any, under the
Worker Adjustment and Retraining Notification Act in connection
with the transaction contemplated by this Agreement. BUYER
hereby agrees to indemnify and to hold SELLER and its affiliates
and its and their officers, directors, agents, and employees
harmless from and against any and all liability, loss, cost, and
expense, however arising, as a result of the failure of BUYER to
comply with its obligations as set forth in this section.
4.4 Actions to be Taken by SELLER. SELLER covenants to BUYER
that it will do or cause the following to occur: Except with
the written consent of BUYER, for a period of twelve (12) months
following the Closing Date, SELLER will not directly or
indirectly solicit Transferred Employees as prospective officers
or employees of SELLER; provided, however, that SELLER shall not
be prohibited or restricted from hiring a Transferred Employee
if such Transferred Employee contacts SELLER or an affiliate of
SELLER to seek hiring or retention, whether in response to
general advertising, or if a Transferred Employee is terminated
subsequent to the Closing.
5. Conditions Precedent to Closing.
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5.1 Conditions to SELLER's Obligations. The obligations of
SELLER to consummate the Acquisition are subject to the
satisfaction, or the waiver in writing by SELLER to the extent
permitted by applicable law, of the following conditions at or
prior to the Closing:
(a) Prior Regulatory Approval. All filings and registrations
with, and notifications to, all federal and state authorities
required for consummation of the Acquisition shall have been
made, all approvals and authorizations of all federal and state
authorities required for consummation of the Acquisition shall
have been received and shall be in full force and effect, and
all applicable waiting periods shall have passed.
(b) Corporate Action. The Board of Directors of BUYER shall
have taken all corporate action necessary by it to effectuate
this Agreement and the Acquisition and BUYER shall have
furnished SELLER with a certified copy of each such resolution
adopted by the Board of Directors of BUYER evidencing the same.
(c) Representations and Warranties. 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 such representations and
warranties had been made on and as of the Closing Date, and
BUYER shall have delivered to SELLER a Certificate to that
effect, dated as of the Closing Date to the effect specified in
Schedule I to this Agreement.
(d) Covenants. Each and all of the covenants and agreements
of BUYER to be performed or complied with at or prior to Closing
pursuant to this Agreement shall have been duly performed or
complied with in all material respects by BUYER, or waived by
SELLER, and BUYER shall have delivered to SELLER a Certificate
to that effect, dated as of the Closing Date to the effect
specified in Schedule K to this Agreement.
(e) No Proceedings or Prohibitions. At the time of the
Closing, there shall not be any litigation, investigation,
inquiry, or proceeding pending or threatened in or by any court
or agency of any government or by any third party which in the
judgment of the executive officers of SELLER, with the advice of
counsel, presents a bona fide claim to restrain, enjoin, or
prohibit consummation of the transactions contemplated by this
Agreement or which might result in rescission in connection with
such transactions; and SELLER shall have been furnished with a
Certificate, in substantially the form specified in Schedule K
to this Agreement, dated as of the Closing Date and signed by
the Chairman, President, or Vice President, and the Secretary or
Assistant Secretary of BUYER, to the effect that no such
litigation, investigation, inquiry, or proceeding is pending or
threatened to the best of their knowledge.
(f) Opinion of Counsel. BUYER shall have delivered to
SELLER an opinion, dated as of the Closing Date, of legal
counsel reasonably satisfactory to SELLER and its counsel, in
form and substance reasonably satisfactory to SELLER and its
counsel to the effect specified in Schedule L to this Agreement.
(g) Receipt of Consents of Third Parties. SELLER shall have
received, in form and substance satisfactory to SELLER, any and
all consents, approvals or waivers of third parties as SELLER,
in its sole discretion (subject to the provisions of this
Agreement), may deem necessary or appropriate to enable it to
consummate the transactions contemplated by this Agreement
without additional cost, expense, or liability to SELLER or its
affiliates.
(h) Closing under Banc One Agreement. The Closing under the
Banc One Agreement shall have occurred.
(i) Banc One Approval. Banc One shall have delivered its
written approval of BUYER as an "Approved Subsequent Buyer" as
defined in Banc One Agreement.
5.2 Conditions to BUYER's Obligations. The obligations of
BUYER to consummate the Acquisition are subject to the
satisfaction, or the waiver in writing by BUYER to the extent
permitted by applicable law, of the following conditions at or
prior to the Closing:
(a) Prior Regulatory Approval. All filings and registrations
with, and notifications to, all federal and state authorities
required for consummation of the Acquisition and operation of
the Offices by BUYER shall have been made, all approvals and
authorizations of all federal and state authorities required for
consummation of the Acquisition and operation of the Offices by
BUYER shall have been received and shall be in full force and
effect, and all applicable waiting periods shall have passed.
(b) Corporate Action. The Board of Directors of SELLER shall
have taken all corporate action necessary to effectuate this
Agreement and the Acquisition; and SELLER shall have furnished
BUYER with a certified copy of each such resolution adopted by
the Board of Directors of SELLER evidencing the same.
(c) Representations and Warranties. The representations and
warranties of SELLER 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 such representations and
warranties had been made on and as of the Closing Date (unless a
different date is specifically indicated in such representations
and warranties), and SELLER shall have delivered to BUYER a
Certificate to that effect, dated as of the Closing Date to the
effect specified in Schedule K to this Agreement.
(d) Covenants. Each and all of the covenants and agreements
of SELLER to be performed or complied with pursuant to this
Agreement shall have been duly performed or complied with in all
material respects by SELLER, or waived by BUYER, and SELLER
shall have delivered to BUYER a Certificate to that effect,
dated as of the Closing Date to the effect specified in Schedule
K to this Agreement.
(e) No Proceedings or Prohibitions. At the time of the
Closing, there shall not be any litigation, investigation,
inquiry, or proceeding pending or threatened in or by any court
or agency of any government or by any third party which in the
judgment of the executive officers of BUYER, with the advice of
counsel, presents a bona fide claim to restrain, enjoin, or
prohibit consummation of the transactions contemplated by this
Agreement or which might result in rescission in connection with
such transactions; and BUYER shall have been furnished with a
Certificate, in substantially the form specified in Schedule K
to this Agreement, dated as of the Closing Date and signed by
the Chairman, President, or Vice President, and the Secretary or
Assistant Secretary of SELLER, to the effect that no such
litigation, investigation, inquiry, or proceeding is pending or
threatened to the best of their knowledge.
(f) Opinion of Counsel. SELLER shall have delivered to BUYER
an opinion, dated as of the Closing Date, of legal counsel
reasonably satisfactory to BUYER and its counsel, in form and
substance reasonably satisfactory to BUYER and its counsel to
the effect specified in Schedule L to this Agreement.
(g) Real Property. The Title Commitments (as defined in
Section 2.1(a) herein) shall have been delivered to BUYER, and
updated to or as close as practicable to (but in no event more
than five (5) business days prior to) the Closing Date, in
accordance with the terms of such Section, and such updated
Title Commitments shall not include any special exceptions other
than those set forth in the original Title Commitments and any
other Permitted Exceptions.
(h) Fixed Assets. There shall have been no material
alteration in or adjustment to the Fixed Assets. For purposes of
this subsection (h), it will not be considered to be a material
alteration or adjustment to the Fixed Assets if (i) Banc One
makes additions to the Fixed Assets with the prior written
consent of BUYER or (ii) Banc One makes additions to the Fixed
Assets without BUYER's consent in order to correct emergency
situations which are threatening to impair Banc One's operations
at an Office.
(i) Banc One Approval. Banc One shall have delivered its
written approval of BUYER as an "Approved Subsequent Buyer" as
defined in Banc One Agreement.
5.3 NonSatisfactions of Conditions Precedent. The
nonoccurrence or delay of the Closing of the Acquisition by
reason of the failure of timely satisfaction of all conditions
precedent to the obligations of any party hereto to consummate
the Acquisition shall in no way relieve such party of any
liability to the other party hereto, nor be deemed a release or
waiver of 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.
5.4 Waivers of Conditions Precedent. The conditions
specified in Sections 5.1 and 5.2 herein 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.
6. Closing.
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6.1 Closing and Closing Date. The Acquisition contemplated
by this Agreement shall be consummated and closed (the
"Closing") at such location as shall be mutually agreed upon by
BUYER and SELLER, and such Closing shall be on the same date, or
the next succeeding day, as the Banc One Closing (the "Closing
Date").
6.2 SELLER's Actions at Closing. At the Closing (unless
another time is specifically stated in Section 6.4 hereof),
SELLER shall, with respect to the Offices:
(a) deliver to BUYER at the Offices such of the Assets
purchased hereunder as shall be capable of physical delivery,
including, without limitation, all assets comprising the safe
deposit box business, if any, of the Offices;
(b) execute, acknowledge and deliver to BUYER all such
limited warranty deeds (qualified, as necessary, to reflect all
Permitted Exceptions), 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 sold or assigned to
BUYER hereunder and such other documents as the title company
may reasonably require; the originals of all blueprints,
construction plans, specifications and plats relating to the
Owned Real Estate, which are now in Banc One's possession or
which SELLER has reasonable access to; and such other documents
or instruments as may be reasonably required by BUYER, required
by other provisions of this Agreement, or reasonably necessary
to effectuate the Closing;
(c) execute, acknowledge and deliver to BUYER a duly
executed and recordable assignment to BUYER of the Third Party
Lease and a consent to assignment from the landlord of the Third
Party Lease all in substantially as set forth in Schedule F
attached hereto and incorporated herein by reference;
(d) assign, transfer, and make available to BUYER such of
the following records as exist and are available and maintained
at the Offices (in whatever form or medium then maintained by
Banc One) pertaining to the Deposit Liabilities and Office Loans:
(1) signature cards, orders, contracts, and agreements
between Banc One and depositors of the Offices and borrowers
with respect to Office Loans, and records of similar character;
and
(2) a trial balance listing of records of account; and
(3) all other miscellaneous records, statements and other
data and materials maintained by Banc One relative to any
Deposit Liabilities being assumed by BUYER and Office Loans
being acquired by BUYER; and
(e) assign, transfer, and deliver to BUYER such safe deposit
and safekeeping files and records (in whatever form or medium
then maintained by Banc One) pertaining to the safe deposit
business of the Offices transferred to BUYER hereunder as exist
and are available, together with the contents of the safe
deposit boxes maintained at the Offices, as the same exist as of
the close of business on the day immediately preceding the
Closing Date (subject to the terms and conditions of the leases
or other agreements relating to the same) and all securities and
other records, if any, held by the Offices for their customers
as of the close of business on the day immediately preceding the
Closing Date (subject to the terms and conditions of the
agreements or receipts relating to the same); and
(f) make available and transfer to BUYER on the Closing Date
and prior to the conclusion of the Closing any funds required to
be paid to BUYER pursuant to the terms of this Agreement; and
(g) execute, acknowledge and deliver to BUYER all
Certificates and other documents required to be delivered to
BUYER by SELLER at the Closing pursuant to the terms of this
Agreement; and
(h) assign by endorsement substantially in a form as
provided in Schedule M attached hereto, transfer and deliver to
BUYER the contract, promissory note or other evidence of
indebtedness related to the Office Loans together with the loan
file and records (in whatever form or medium maintained by Banc
One immediately prior to the Banc One Closing) pertaining to
such Office Loans; and
(i) assign to BUYER all SELLER's rights in and to the
Assumed Contracts which are assignable and which constitute part
of the Assets.
6.3 BUYER's Actions at the Closing. At the Closing (unless
another time is specifically stated in Section 6.4 hereof),
BUYER shall, with respect to the Offices:
(a) execute, acknowledge, and deliver to SELLER, to evidence
the assumption of the liabilities and obligations of SELLER by
BUYER hereunder, an instrument of assumption in the form set
forth in Schedule N to this Agreement, and SELLER shall then
accept, execute, and acknowledge such instrument. Copies of such
instrument may be recorded in the public records at the option
of either party hereto. The execution and acknowledgment of such
instrument shall not be deemed to be a waiver of any rights or
obligations of any party to this Agreement;
(b) receive, accept and acknowledge delivery of all Assets,
and all records and documentation relating thereto, sold,
assigned, transferred, conveyed or delivered to BUYER by SELLER
hereunder; and
(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;
(d) pay to SELLER on the Closing Date and prior to the
conclusion of the Closing any funds required to be paid to
SELLER at the Closing pursuant to the terms of this Agreement;
(e) execute, acknowledge and deliver to SELLER all
Certificates and other documents required to be delivered to
SELLER by BUYER at the Closing pursuant to the terms hereof; and
(f) execute, acknowledge and deliver to SELLER an agreement
wherein BUYER assumes obligations with respect to the Third
Party Lease and Assumed Contracts and the IRA's for all periods
following the Closing Date with respect thereto.
6.4 Methods of Payment. Subject to the adjustment procedures
set forth in this Section 6.4, the transfer of the funds, if
any, due to BUYER or to SELLER, as the case may be, as set forth
pursuant to the terms of Section 1.4(a) hereof, shall be made on
the Closing Date in immediately available United States Federal
Funds. At least two business days prior to the Closing, SELLER
and BUYER shall provide written notice to one another indicating
the account and bank to which such funds shall be wire
transferred. In order to facilitate the Closing, the parties
agree: (i) that the amount of funds transferred on the Closing
Date, pursuant to Section 1.4(a) hereof, shall be computed based
upon (a) the aggregate book value plus accrued interest of the
Office Loans as of the close of business on a day to be agreed
between the parties, not more than three (3) business days
preceding the Closing Date, (b) cash on hand at the Offices as
of the close of business on a day to be agreed between the
parties, not more than three (3) business days preceding the
Closing Date, and (c) the aggregate balance of all Deposit
Accounts (including interest posted or accrued to such accounts
and Individual Retirement Accounts which have become IRAs as a
result of the written appointment of BUYER as the successor
custodian and the failure of the account holders to object to
such appointment) as of the close of business on a day to be
agreed between the parties, not more than three (3) business
days preceding the Closing Date, and the parties shall execute a
Preliminary Closing Statement in substantially the form set
forth in Schedule P attached. Furthermore, within ten (10)
business days after the Closing, the parties shall make
appropriate postclosing adjustments, consistent with the
provisions of Section 1.4 hereof, based upon actual Deposit
Accounts as of the Closing Date, Office Loans as of the Closing
Date, and cash transactions which took place on the Closing Date
or which took place prior to the Closing Date but which were not
reflected in the Preliminary Closing Statement, and shall
execute the Final Settlement Statement in substantially the form
set forth in Schedule O attached. In addition, prorations of
prepaid and deferred income and expenses that cannot be
reasonably calculated at the Closing shall be settled and paid
based on actual amounts and calculations as soon as possible
after the Closing.
6.5 Availability of Closing Documents. The documents
proposed to be used and delivered at the Closing shall be made
available for examination by the respective parties not later
than 12:00 noon, Ohio time, on the tenth Business Day prior to
the Closing Date.
6.6 Effectiveness of Closing. Upon the satisfactory
completion of the Closing, which does not include and shall not
require completion of the adjustment and proration arrangements
set forth in Section 6.4, the Acquisition shall be deemed to be
effective and the Closing shall be deemed to have occurred.
7. Certain Transitional Matters.
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7.1 Transitional Action By BUYER. After the Closing, unless
another time is otherwise indicated:
(a) BUYER shall: (i) pay in accordance with the law and
customary banking practices and applicable Deposit Account
contract terms, all properly drawn and presented checks,
negotiable orders of withdrawal, drafts, debits, and withdrawal
orders presented to BUYER by mail, over the counter, through
electronic media, or through the check clearing system of the
banking industry, by depositors of the Deposit Accounts assumed
by BUYER hereunder, whether drawn on checks, negotiable orders
or withdrawal, drafts, or withdrawal order forms provided by
BUYER or Banc One; and (ii) in all other respects discharge, in
the usual course of the banking business, the duties and
obligations of Banc One with respect to the balances due and
owing to the depositors whose Deposit Accounts are assumed by
BUYER hereunder; provided, however, that any obligations of
BUYER pursuant to this Section 7.1 to honor checks, negotiable
orders of withdrawal, drafts, and withdrawal orders on forms
provided by Banc One and carrying its imprint (including its
name and transit routing number) shall not apply to any checks,
drafts, withdrawal orders, or returned items (i) presented to
BUYER more than one hundred eighty (180) days following the
Closing Date, or (ii) on which a stop payment has been requested
by the deposit customer. BUYER shall submit and file any
required reports on IRS Form 1099 with respect to interest
accrued on Deposit Liabilities after the Closing Date. The
provisions of this subsection 7.1 (a) shall in no way limit
BUYER's duties or obligations arising under Section 1.3(b)
hereof.
(b) BUYER shall, not earlier than the time of procurement of
all regulatory approvals required for consummation of the
transaction contemplated by this Agreement nor later than ten
(10) days prior to the Closing Date, notify all depositors of
the Offices by letter, acceptable to Banc One and SELLER,
produced in, if appropriate, several similar, but different
forms calculated to provide necessary and specific information
to the owners of particular types of accounts, of BUYER's
pending assumption of the Deposit Liabilities hereunder, and, in
appropriate instances, notify depositors that on and after the
Closing Date certain Banc One depositrelated services and/or
Banc One's debit card and automatic teller machine services
impacted by the transactions contemplated by this Agreement,
will be terminated. As an enclosure to such notices, BUYER may
furnish appropriate depositors with brochures, forms and other
written materials related or necessary to the assumption of the
Deposit Accounts by BUYER and the conversion of said 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 Banc One's
forms. The expenses of the printing, processing and mailing of
such letter notices and providing new BUYER checks and other
forms and written materials to appropriate customers shall be
borne by BUYER. Before Closing, except as provided in this
paragraph, BUYER will not contact Banc One's customers except as
may occur in connection with advertising or solicitations
directed to the public generally or in the course of obtaining
the requisite regulatory approvals of the transaction. Anything
to the contrary herein notwithstanding, BUYER shall provide, at
no cost to Banc One and SELLER, any and all notices,
communications, and filings which may be required by law,
regulation, or otherwise, relating to any changes in terms and
other matters relating to the Deposit Accounts and the Office
Loans occurring subsequent to the Closing Date. Any and all such
notices, communications, and filings which may be required to be
provided prior to the Closing Date shall be submitted on a
timely basis for review by Banc One and SELLER and shall be
subject to the written approval of Banc One and SELLER prior to
delivery to any third party.
(c) BUYER shall promptly pay to SELLER an amount equivalent
to the amount of any checks, negotiable orders of withdrawal,
drafts, withdrawal orders, or returned items (net of the
applicable Acquisition Consideration paid by BUYER with respect
to the Deposit Liabilities represented by any such instrument)
credited as of the close of business on the Closing Date to a
Deposit Account assumed by BUYER hereunder which are returned
uncollected to Banc One or SELLER after the Closing Date. The
foregoing shall include an amount equivalent to holds placed
upon such deposit account for items cashed by Banc One or SELLER
as of the close of business on the Closing Date.
(d) All tasks and obligations concerning the provision of
data processing services to or for the Offices after the
Closing, other than those specifically set forth in, and to the
extent assumed by SELLER pursuant to, Section 7.2(b) herein, if
any, are the sole and exclusive responsibility of, and shall be
performed solely and exclusively by, BUYER.
(e) BUYER shall, not later than the close of business on the
business day immediately following the Closing Date, supply
suitable governmentbacked securities as security for any
deposits of governmental units included among the Deposit
Liabilities for which Banc One had provided similar security.
(f) BUYER shall, as soon as practicable but not more than 10
business days after the Closing Date, prepare and transmit at
BUYER's expense to each of the obligors on Office Loans
transferred to BUYER pursuant to this Agreement a notice to the
effect that the loan has been transferred and directing that
payment be made to BUYER at the address specified by BUYER, with
BUYER's name as payee on any checks or other instruments used to
make payments, and, with respect to such loan on which a payment
notice or coupon book has been issued, to issue a new notice or
coupon book reflecting the name and an address of BUYER as the
person to whom and place at which payments are to be made.
(g) If the balance due on any Office Loan transferred to
BUYER pursuant to this Agreement has been reduced by Banc One or
SELLER as a result of a payment by check or draft received prior
to the close of business on the Closing Date, which item is
returned unpaid to Banc One or SELLER after the day immediately
preceding the Closing Date, the asset value represented by the
loan transferred shall be correspondingly increased and an
amount in cash equal to such increase shall be promptly paid by
BUYER to SELLER.
(h) BUYER shall use its best efforts to cooperate with
SELLER in assuring an orderly transition of ownership of the
Assets and responsibility for the liabilities, including the
Deposit Liabilities, assumed by BUYER hereunder.
(i) BUYER hereby grants to SELLER and its contractors access
to the Offices until 8:00 A.M. local time on the day following
the Closing Date, or such other later date and time as the
parties may agree, at no cost or expense to SELLER, for conduct
of activities consistent with this Agreement in conjunction with
the transactions contemplated hereby.
(j) The duties and obligations of BUYER in this section 7.1
shall survive the Closing.
7.2 Transitional Actions By SELLER. After the Closing,
unless another time is otherwise indicated:
(a) SELLER shall use its best efforts to cooperate with
BUYER in assuring an orderly transition of ownership of the
Assets and responsibility for the liabilities, including the
Deposit Liabilities, assumed by BUYER hereunder. SELLER shall
use reasonable efforts to have Banc One provide final statements
as of the Closing Date, in conjunction with appropriate Deposit
Liabilities, with interest and service charges prorated to close
of business on the Closing Date. SELLER shall use reasonable
efforts to have Banc One submit and file any required reports on
IRS Form 1099 with respect to interest accrued on Deposit
Liabilities through the Closing Date.
(b) SELLER's sole and exclusive responsibilities concerning
the provision of data processing services to or for the Deposit
Accounts of the Offices after the Closing Date, if any, shall be
as set forth in this Section 7.2(b). As soon as practicable
following the date of this Agreement, SELLER shall use
reasonable efforts to have Banc One provide BUYER with
applicable product functions and specifications relating to the
data processing support required for the Deposit Accounts,
Office Loans, and safe deposit business (if such data processing
support currently is provided with respect to such business)
maintained at the Offices (such Deposit Accounts, Office Loans
and safe deposit business, if applicable, hereinafter called the
"Accounts"). As soon as practicable following the date of this
Agreement, SELLER shall use reasonable efforts to have Banc One
provide to BUYER file formats relating to the Accounts and up to
three (3) sets of test tapes related to the Accounts in generic
form which are machine readable on IBM (or IBM compatible)
equipment or which shall be on eighteen track 3480 cartridges
(noncompressed data) or on nine channel 6250 B.P.I. EBCDIC
formatted tape. By not later than 2:00 P.M. local Columbus, Ohio
time on the day immediately following the Closing Date, SELLER
shall use reasonable efforts to have Banc One make the foregoing
documents and materials available for pickup by BUYER at the
Banc One Corporation, Columbus, Ohio, Data Processing Center
and/or the FISERV Data Center in Philadelphia, Pennsylvania.
BUYER shall review and analyze such materials including, but not
limited to, the file formats and test tapes, and shall advise
SELLER in writing of any defects or concerns relating thereto
not later than 10 business days following receipt thereof.
(c) SELLER shall use reasonable efforts to have Banc One
resign as custodian of each IRA account maintained at the
Offices and assign the custodianship of such accounts to BUYER
upon Closing subject to receipt of applicable customer consents
and other provisions of this Agreement including the provisions
of section 8.10 hereto.
(d) SELLER shall use reasonable efforts to have Banc One
terminate its ATM/debit card service effective as of close of
business on the business day preceding the Closing Date or such
other date and time as Banc One, SELLER and BUYER may agree.
Such terminations will be preceded by the notice described in
Section 7.1(b) herein. SELLER shall have no obligation with
respect to conversion or change over with respect to direct
deposit or payroll and retirement payments service relating to
the Deposit Accounts following the Closing and, further, BUYER
shall assume all responsibility and liability with respect
thereto following the Closing. SELLER and Banc One will continue
to redirect and/or pass through relevant ACT transactions on
Deposit Accounts for a period of 90 days following the Closing
Date.
(e) As of the opening of business on the first business day
after the Closing Date, SELLER shall use reasonable efforts to
have Banc One, and BUYER shall, provide the appropriate Federal
Reserve Bank (the "FRB") with all information necessary in order
to expedite the clearing and sorting of all checks, drafts,
instruments and other commercial paper relative to the Deposit
Liabilities and/or the Office Loans (hereinafter collectively
referred to as "Paper Items"). BUYER shall bear all charges and
costs imposed by the Federal Reserve in connection with the
reassignment of account number ranges for sorting the Paper
Items.
In the event the Federal Reserve and/or any other regional or
local clearinghouse for negotiable instruments fails, refuses or
is unable to direct sort such Paper Items for delivery to BUYER
with the result that such Paper Items are presented to Banc One
or SELLER, by not later than 2:00 _.m. local Columbus, Ohio time
on each business day following the Closing and continuing for
one hundred twenty (120) days after the Closing, SELLER shall
use reasonable efforts to have Banc One make available to BUYER
for pick up from Banc One's offices or the offices of Banc One's
agent and/or processor at the Banc One Data Processing Center in
Columbus, Ohio and/or the Banc One Corporation Charleston, West
Virginia Data Processing Center, all of the Paper Items which
are received by Banc One or SELLER from the FRB and/or any
regional or local clearinghouse during the morning of each such
business day on an "asreceived basis." At the same time SELLER
shall use reasonable efforts to have Banc One also make
available to BUYER information and records, including but not
limited to systems printouts, concerning such Paper Items and
concerning incoming Automated Clearing House items ("ACM items")
as well as outstanding Automatic Teller Machine ("ATM")
transactions. Such information and records, including but not
limited to systems printouts, will utilize the most recent
account number designated by Banc One for each of the Deposit
Accounts and/or the Office Loans. BUYER shall initiate
appropriate Notification of Change requests relating to
appropriate routing manners at the sole expense of BUYER within
30 days following the Closing Date. SELLER shall use reasonable
efforts to have Banc One each business day endeavor to see that
the sum of (a) the actual Paper Items provided to BUYER plus (b)
all ACT items and ATM transactions captured by Banc One in its
information and records balance with the sum of (c) the
information and records, including but not limited to systems
printouts, provided by Banc One relative to the Paper Items plus
(d) the information and records, including but not limited to
systems printouts, provided relative to the ACT items and ATM
transactions affecting the Deposit Accounts and/or the Office
Loans.
Except as otherwise expressly noted, SELLER shall use reasonable
efforts to have Banc One provide the foregoing at no charge to
BUYER for a period not to exceed thirty (30) days from the
Closing Date except that BUYER shall pay any charges assessed to
Banc One or SELLER by the FRB, a national or local clearinghouse
and/or Banc One's agent and/or processor to the extent such
assessments relate to the Deposit Accounts. BUYER shall be
responsible for pick up of the data to be provided by Banc One
and SELLER and shall compensate SELLER for activity subsequent
to the referenced 30 day period in the amount of $50.00 per day
and $.25 per item.
SELLER and BUYER shall arrange for appropriate daily settlement
between the parties in order that the transmission of all monies
associated with the matters set forth in this Section 7.2(e)
might be effected promptly.
SELLER shall not be liable to BUYER for any failure to provide
the data required by this Section 7.2(e) to the extent any such
failure results from causes beyond SELLER's control including
war, strike or other labor disputes, acts of God, errors or
failures of the FRB, Banc One and/or a participating regional or
local clearinghouse, or equipment failure or other emergency
wherein SELLER and/or its agent processor has been unable to
process in clearings from the FRB, Banc One or such
clearinghouse.
(f) SELLER shall use reasonable efforts to have Banc One, not
earlier than the time of procurement of all regulatory approvals
required for consummation of the transaction contemplated by
this Agreement nor later than twenty days prior to the Closing
Date, notify all depositors of the Offices and all borrowers of
any Office Loan by letter acceptable to BUYER, produced in, if
appropriate, several similar, but different forms calculated to
provide necessary and specific information to the owners of
particular types of accounts and/or loans, of BUYER's pending
assumption of the Deposit Liabilities and acquisition of the
Office Loans hereunder, and, in appropriate instances, notify
depositors that on and after the Closing Date certain Banc One
depositrelated services and/or Banc One's debit card and
automatic teller machine services, will be terminated. SELLER
shall use reasonable efforts to insure that the expenses of the
printing, processing and mailing of such letter notices shall be
borne by Banc One. Anything to the contrary herein
notwithstanding, nothing in this Agreement shall be deemed to
constitute an assumption by SELLER or Banc One of the duties and
obligations of BUYER with respect to the provision of applicable
notices, communications, and filings relating to changes in the
terms of any Deposit Accounts or Office Loans as set forth in
this Agreement.
(g) For a period of ending on the later of the next ensuring
payment date under the terms of the office loan following the
Closing Date or sixty (60) days after the Closing Date, SELLER
shall use reasonable efforts to ensure that Banc One will
forward to BUYER, within two (2) business days of receipt, loan
payments received by Banc One with respect to the Office Loans.
BUYER will forward, within two (2) business days of receipt
payments received by BUYER with respect to any loans not
assigned to BUYER under this Agreement. BUYER further agrees,
and SELLER shall use reasonable efforts to have Banc One agree,
to refer customers to the offices of the other when such
customers present payments over the counter to the party not
holding their respective loan. BUYER shall reimburse Banc One
within 30 days of notice by Banc One to BUYER for any payments
tendered by borrowers which were credited to the outstanding
balance of any Office Loan prior to the Closing Date and which
are subsequently returned or otherwise withdrawn for any reason
and SELLER shall use reasonable efforts to have Banc One assign
to BUYER any rights of Banc One to recovery of such payments as
against the relevant borrower.
(h) The duties and obligations of the parties in this
section 7.2 shall survive the Closing.
7.3 Overdrafts and Transitional Action. Overdrafts paid on
the Deposit Accounts with respect to ledger dates after the
Closing Date will be the responsibility and risk of BUYER.
SELLER shall use reasonable efforts to ensure that overdrafts
approved with respect to ledger dates prior to the Closing Date
will be the responsibility and risk of Banc One. Overdrafts
approved with respect to ledger dates prior to the Closing Date
through the Closing Date will initially be the responsibility
and risk of BUYER; provided, however, that SELLER shall use
reasonable efforts to ensure that BUYER shall have the right to
retransfer any such overdrafts back to Banc One for Banc One's
responsibility and at its risk within ten (10) days following
the Closing Date, and Banc One will repurchase all rights in
respect of such overdrafts from BUYER for the lesser of a) the
amount of each such overdraft as of the Closing Date or b) the
amount of each such overdraft outstanding at the time it is
retransferred back to Banc One, minus the amount of the
Acquisition Consideration paid by BUYER to SELLER attributable
to such overdrafts and, provided further, that BUYER shall have
closed all accounts on which each such overdraft exists not
later than the date of such retransfer.
7.4 ATMs and Debit Cards.
(a) SELLER shall use reasonable efforts to have SELLER
provide to BUYER no later than sixty (60) days prior to the
Closing Date, a test tape, along with a file format or file
layout and a production tape thirty (30) days before the Closing
Date, containing customer name, card number, withdrawal limits,
the Deposit Accounts activated by, accessible to or committed to
such cards issue dates and/or open dates, last transaction
dates, and expiration dates as to all ATM and debit cards issued
to customers of the Banc One Offices processor to deactivate the
operation of the Banc One ATM and debit cards completely or to
deactivate or disconnect the Deposit Accounts from such Banc One
ATM and debit cards no later than the business day cutoff on the
date prior to the Closing Date so that all activity generated by
the Banc One ATM and debit cards shall have settled prior to the
Closing Date. All transactions and activity related to the Banc
One ATM and debit cards following the Closing Date which are
received or forwarded to Banc One will be accepted and forwarded
by Banc One to BUYER along with all corresponding funds. SELLER
shall use reasonable efforts to have Banc One thereafter agree
to immediately notify its processor to deactivate such ATM and
debit cards and to forward all transactions related thereto
directly to BUYER.
(b) SELLER shall use reasonable efforts to have Banc One
agree to deactivate the ATMs located at the Offices on or before
the business day cutoff on the day prior to the Closing Date.
Thereafter, BUYER shall reconfigure the ATMs to its standards
for activation after the business day cutoff on the Closing Date.
(c) BUYER, and SELLER shall use reasonable efforts to have
Banc One, agree to cooperate with each other to assure that all
transactions originated through the ATM or originated with the
ATM Cards prior to or on the Closing Date shall be for the
account of Banc One and all transactions originated after the
Closing Date shall be for the account of BUYER. A post closing
adjustment shall be made in the manner set forth in Section 6.4
hereof to reflect all such transactions which cannot be
reasonably calculated as of the Closing.
7.5 Environmental Matters.
(a) SELLER has provided to BUYER, and BUYER hereby
acknowledges receipt of, copies of Phase I environmental site
assessments which were provided to SELLER by Banc One (the
"Phase I Assessments" herein) for all Owned Real Estate.
(b) If such Phase I Assessments reasonably indicated the
necessity or desirability of further investigation to determine
whether or not an Environmental Hazard exists at such Owned Real
Estate, BUYER shall notify SELLER in writing, not later than
eighteen (18) days after December 30, 1997, of BUYER's desire to
have an environmental consultant selected by SELLER (the
"Environmental Consultant"), to the extent reasonable and
appropriate, conduct Phase II environmental site assessments (
the "Phase II Assessments" herein). Any such further
investigation or testing shall be conducted in such a manner so
as not to interfere with the normal operation of the Office(s)
involved and shall be conducted for the benefit of Buyer. All
such Phase II Assessments shall be treated as information
subject to Section 8.1 of this Agreement, shall be completed not
less than fiftyeight (58) days after December 30, 1997, and
shall be conducted at no cost or expense to SELLER. Further,
BUYER shall indemnify and hold harmless SELLER and its
affiliates and its and their employees, officers, directors,
agents, tenants, and landlords from and against any and all
liability, loss, cost, and expense, however arising, including
attorney fees, as a direct or indirect result of any injuries to
persons or property occurring in conjunction with conduct of the
Phase II Assessments.
(c) SELLER shall have a period of 10 business days from
receipt of such notice to elect, at its sole option, to consent
to conduct of the Phase II Assessment or to terminate this
Agreement with respect to the relevant Office which is the
proposed subject of the Phase II Assessment (the "Removed
Office") and any and all assets and liabilities associated
therewith. In the event of such termination, if the Removed
Office is the only Office which is the subject of this Agreement
this Agreement shall be deemed terminated in accordance with
Section 9.1 herein and the Deposit described in the Banc One
Agreement shall be refunded to BUYER upon receipt by SELLER. In
the event of such termination where the Removed Office is not
the only Office which is the subject of this Agreement, this
Agreement shall remain in full force and effect except that the
Removed Office and any and all assets and liabilities associated
therewith shall be deemed not the subject of this Agreement and
eliminated therefrom.
(d) In the event that the Phase II Assessment is conducted
and the Environmental Consultant discovers an Environmental
Hazard during any such Phase II Assessment at any single parcel
of Owned Real Estate, the remediation of which, in the
reasonable judgment of the Environmental Consultant, is or would
be the responsibility of Banc One, SELLER, or BUYER should it
acquire such Owned Real Estate, and will result in projected
remediation costs of $75,000.00 or more for such single parcel
of Owned Real Estate, BUYER shall lease from SELLER such single
parcel of Owned Real Estate pursuant to a Lease Agreement which
shall provide as follows:
(1) Such Lease Agreement shall be for a term of two (2)
years from the Closing Date, with no obligation or right to
renew (it being the intention of SELLER that BUYER locate an
alternative branch site during such two years unless remediation
occurs pursuant to this Section 7.5), at a rental equal to a
fair market rental value;
(2) Such Lease payment shall provide that SELLER shall
indemnify BUYER in connection with any claims or losses incurred
by BUYER in connection with any remediation conducted by BUYER
with the leased premises.
(3) SELLER may sell such Owned Real Estate to any person at
any time during the term of such Lease Agreement, subject to
such Lease Agreement, for a price;
(4) During the term of such Lease Agreement, in the event
that SELLER shall deliver to BUYER a report of a qualified
environmental engineer or consultant certifying that the
Environmental Hazard, at or on any such parcel of Owned Real
Estate which is the subject of the Lease Agreement, has been
remediated to the extent reasonably required under applicable
Environmental Laws, BUYER shall be required to purchase such
parcel of Owned Real Estate at the net book value as of the
close of business of the monthend day most recently preceding
the Closing Date; and
(5) Other terms and conditions of the Lease Agreement shall
be typical to branch leases in the relevant market of the
subject Owned Real Estate and as negotiated between SELLER and
BUYER.
If the projected remediation cost is less than $75,000 for any
single parcel of Owned Real Estate, BUYER shall acquire such
parcel and such cost shall be borne by BUYER without indemnity,
price adjustment, or set off under this Agreement, and BUYER
shall be deemed to have waived any and all claims against SELLER
and its affiliates and its and their officers, directors,
employees, or arising directly or indirectly as a result of the
Environmental Hazards.
(e) BUYER agrees that the Environmental Consultant should
conduct any Phase II Assessments or other investigations
pursuant to this Section with reasonable care and subject to
customary practices among environmental consultants and
engineers, including, without limitation, following completion
thereof, the restoration of any site to the extent practicable
to its condition prior to such site assessment or investigation
and the removal of all monitoring wells.
(f) Any lease of a parcel of Owned Real Estate pursuant to
this Section 7.5 shall in no way affect the transfer of any
related assets or liabilities, other than such parcel of Owned
Real Estate, to the BUYER at the Closing.
(g) For purposes of this Section 7.5, the term
"Environmental Law" shall mean any Federal or state law,
statute, rule, regulation, code, order, judgment, decree,
injunction, or agreement with any Federal or state governmental
authority, (x) relating to the protection, preservation, or
restoration of the environment (including, without limitation,
air, water, vapor, surface water, groundwater, drinking water
supply, surface land, subsurface land, plant and animal life or
any other natural resource) or to human health or safety or (y)
the exposure to, or the use, storage, recycling, treatment,
generation, transportation, processing, handling, labeling,
production, release or disposal of hazardous substances, in each
case as amended and now in effect. Environmental Laws include,
without limitation, the Clean Air Act (42 U.S.C. section 7401 et
seq.); the Comprehensive Environmental Response Compensation and
Liability Act (42 U.S.C. section 9601 et seq.); the Federal
Water Pollution Control Act (33 U.S.C. section 1251 et seq.);
the Occupational Safety and Health Act (29 U.S.C. section 651 et
seq.); provided, however, that the definition of "Environmental
Law" shall not include any Federal or state law, statute, rule,
regulation, code, order, judgment, decree, injunction or
agreement with any governmental authority relating to asbestos
or asbestoscontaining materials.
(h) For purposes of this Section 7.5, the term
"Environmental Hazard" shall mean the presence of any Hazardous
Substance in violation of, and reasonably likely to require
material remediation costs under, applicable Environmental Laws;
provided, however, that the definition of Environmental Hazard
shall not include asbestos and asbestoscontaining materials.
(i) For purposes of this Section 7.5, the term "Hazardous
Substance" shall mean any substance, whether liquid, solid, or
gas, (a) listed, identified or designated as hazardous or toxic
to a level which requires remediation under any Environmental
Law; (b) which, applying criteria specified in any Environmental
Law, is hazardous or toxic; or (c) the use or disposal of which
is regulated under Environmental Law.
7.6 Effect of Transitional Action. Except as and to the
extent expressly set forth in this Article 7, nothing contained
in this Article 7 shall be construed to be an abridgment or
nullification of the rights, customs and established practices
under applicable banking laws and regulations as they affect any
of the matters addressed in this Article 7.
8. General Covenants and Indemnification.
- -------------------------------------------
8.1 Confidentiality Obligations of BUYER. From and after the
date hereof, BUYER and its affiliates and parent company shall
treat all information received from SELLER concerning the
business, assets, operations, and financial condition of SELLER
and Banc One and its affiliates and its and their customers
(including without limitation the Offices), as confidential,
unless and to the extent that BUYER can demonstrate that such
information was already known to BUYER and its affiliates, if
any, or in the public domain or received from a third person not
known by BUYER to be under any obligation to SELLER and Banc
One; and BUYER shall not use any such information (so required
to be treated as confidential) for any purpose except in
furtherance of the transactions contemplated hereby. Upon the
termination of this Agreement, BUYER shall, and shall cause its
affiliates, if any, to, promptly return all documents and
workpapers containing, and all copies of, any such information
(so required to be treated as confidential) received from or on
behalf of SELLER and Banc One in connection with the
transactions contemplated hereby. The covenants of BUYER
contained in this Section 8.1 are of the essence and shall
survive any termination of this Agreement, but shall terminate
at the Closing, if it occurs, with respect to any information
that is limited solely to the activities and transactions of the
Offices; provided, however, that neither BUYER nor any of its
affiliates shall be deemed to have violated the covenants set
forth in this Section 8.1 if BUYER shall in good faith disclose
any of such confidential information in compliance with any
legal process, order or decree issued by any court or agency of
government of competent jurisdiction. It is expressly
acknowledged by SELLER that all information provided to BUYER
related to this purchase and assumption transaction may be
provided to BUYER's affiliates as necessary for the purpose of
consummating the transaction which is the subject of this
Agreement. The covenants and obligations of BUYER hereunder
shall survive the Closing and any earlier termination of this
Agreement.
8.2 Confidentiality Obligations of SELLER. From and after
the date hereof, SELLER, and its affiliates shall treat all
information received from BUYER concerning BUYER's business,
assets, operations, and financial condition as confidential,
unless and to the extent SELLER can demonstrate that such
information was already known to SELLER or its affiliates or in
the public domain, and SELLER shall not use any such information
(so required to be treated as confidential) for any purpose
except in furtherance of the transactions contemplated hereby.
Upon the termination of this Agreement, SELLER shall promptly
return all documents and workpapers containing, and all copies
of, any such information (so required to be treated as
confidential) received from or on behalf of BUYER in connection
with the transactions contemplated hereby. The covenants of
SELLER contained in this Section 8.2 are of the essence and
shall survive any termination of this Agreement; provided,
however, that SELLER nor any of its affiliates shall be deemed
to have violated the covenants set forth in this Section 8.2 if
SELLER shall in good faith disclose any of such confidential
information in compliance with any legal process, order or
decree issued by any court or agency of government of competent
jurisdiction. It is expressly acknowledged by BUYER that all
information provided to SELLER related to this purchase and
assumption transaction may be provided to SELLER's affiliates
for the purpose of consummating the transaction which is the
subject of this Agreement. The covenants and obligations of
SELLER hereunder shall survive the Closing and any earlier
termination of this Agreement.
8.3 Indemnification By SELLER. From and after the Closing
Date, SELLER shall indemnify, hold harmless, and defend BUYER
from and against all claims, losses, liabilities, demands and
obligations, including without limitation reasonable attorneys'
fees and expenses, which BUYER may receive, suffer or incur in
connection with (i) any actions, suits, claims, demands or
proceedings commenced prior to the Closing Date (other than
proceedings to prevent or limit the consummation of the
Acquisition) relating to operations at the Offices and/or the
Deposit Liabilities or Office Loans of the Offices or (ii) any
actions, suits, claims, demands or proceedings commenced on or
after the Closing Date to the extent the same relate to
operations at the Offices, the Assets, the Deposit Liabilities
or Office Loans prior to the Closing Date. The obligations of
SELLER under this Section 8.3 shall be contingent upon (a)
SELLER being indemnified by Banc One for any obligations arising
under this Section 8.3 and (b) BUYER giving SELLER written
notice (i) of receipt by BUYER of any process and/or pleadings
in or relating to any actions, suits, or proceedings of the
kinds described in this Section 8.3, including copies thereof,
and (ii) of the assertion of any claim or demand relating to the
operation of the Offices, the Assets, the Deposit Liabilities or
Office Loans prior to the Closing, including, to the extent
known to BUYER, the identity of the person(s) or entity(ies)
asserting such claim or making such demand and the nature
thereof, and including copies of any correspondence or other
writings relating thereto, provided, however, that the failure
to give timely notice by BUYER hereunder shall not relieve
SELLER of its obligations under this Section 8.3 unless SELLER
has been materially damaged by such failure to give notice. The
rights of BUYER under this section shall not apply to any suits,
judgments, demands, setoffs, or other claims arising directly or
indirectly in conjunction with the Office Loans or other Assets
transferred in accordance with this Agreement except (i) claims
for personal injury arising from injuries occurring at the
Offices prior to the Closing, or (ii) claims relating to the
operation of the Offices prior to the Closing Date which relate
to the Assets or Office Loans. All notices required by the
preceding sentence shall be given within fifteen (15) days of
the receipt by BUYER of any such process or pleadings or any
oral or written notice of the assertion of any such claims or
demands. SELLER shall have the right to take over BUYER's
defense in any such actions, suits or proceedings through
counsel selected by SELLER, to compromise and/or settle the same
(with the prior written consent of BUYER, which consent shall
not unreasonably be withheld) and to prosecute any available
appeals or reviews of any adverse judgment or ruling that may be
entered therein. The covenants and obligations of SELLER
hereunder shall survive the Closing Date.
8.4 Indemnification By BUYER. From and after the Closing
Date, BUYER shall indemnify, hold harmless and defend SELLER
from and against all claims, losses, liabilities, demands and
obligations, including without limitation reasonable attorneys'
fees and expenses which SELLER may receive, suffer, or incur in
connection with (i) any losses incurred by SELLER related to
SELLER's compliance with instructions from BUYER made pursuant
to Section 7.4 of this Agreement and not related to any
negligence or malfeasance on the part of SELLER and (ii)
operations and transactions occurring after the Closing and
which involve the Assets transferred, the Deposit Liabilities or
Office Loans and the other obligations and liabilities assumed
pursuant to this Agreement. The obligations of BUYER under this
Section 8.4 shall be contingent upon SELLER giving BUYER written
notice (i) of the receipt by SELLER of any process and/or
pleadings in or relating to any actions, suits or proceedings of
the kinds described in this Section 8.4, including copies
thereof, and (ii) of the assertion of any claim or demand
relating to the Assets transferred to and/or the Deposit
Liabilities or Office Loans and the other obligations and
liabilities assumed by BUYER on or after the Closing, including,
to the extent known to SELLER, the identity of the person(s) or
entity(ies) asserting such claim or making such demand and the
nature thereof, and including copies of any correspondence or
other writings relating thereto, provided, however, that the
failure to give timely notice by SELLER hereunder shall not
relieve BUYER of its obligations under this Section 8.4 unless
BUYER has been materially damaged by such failure to give
notice. All notices required by the preceding sentence shall be
given within fifteen (15) days of the receipt by SELLER of any
such process or pleadings or any oral or written notice of the
assertion of any such claims or demands. BUYER shall have the
right to take over SELLER's defense in any such actions, suits,
or proceedings through counsel selected by BUYER, to compromise
and/or settle the same and to prosecute any available appeals or
review of any adverse judgment or ruling that may be entered
therein. The covenants and obligations of BUYER hereunder shall
survive the Closing. BUYER shall indemnify and hold harmless
SELLER from and against any and all claims, losses, liabilities,
demands, and obligations, including without limitation
reasonable attorneys' fees and expenses, which SELLER may
receive, suffer or incur in connection with (a) BUYER's failure
to perform in any material respect any of its obligations under
this Agreement, and (b) BUYER's performance of its obligations
under this Agreement with respect to Transferred Employees,
depositors and customers of Banc One to the extent that such
performance does not fully satisfy the obligations of SELLER to
such Transferred Employees, depositors and customers under the
Banc One Agreement.
8.5 Solicitation of Customers by BUYER Prior to Closing. At
any time prior to the Closing Date, BUYER will not, and will not
permit any of its affiliates, if any, to conduct any marketing,
media or customer solicitation campaign which is targeted to
induce customers whose Deposit Account liabilities are to be
assumed or Office Loans are to be acquired by BUYER pursuant to
this Agreement to discontinue their account or business
relationships with Banc One or its affiliates. Additionally, at
any time prior to the Closing, BUYER shall not, with respect to
its offices in the same market as the Offices, offer to pay on
any transaction accounts or any new or renewal savings account
or certificates of deposits, rates of interest greater than
those offered or then being paid on similar accounts for like
term and amount by other offices of BUYER located in the
referenced market. Among other matters, it is the intent of
this provision to prevent BUYER from paying or offering to pay a
rate of interest on any deposit accounts in excess of that rate
paid for like accounts at other offices of BUYER within the
market of the Offices prior to execution of this Agreement.
8.6 Solicitation of Customers by SELLER After the Closing.
From the date of this Agreement and for one (1) year following
the Closing Date, SELLER will not knowingly directly solicit (a)
deposit accounts from customers whose Deposit Liabilities and/or
Office Loans are assumed or acquired by BUYER pursuant to this
Agreement, or (b) refinancing of Office Loans from borrowers
whose Office Loans are being acquired by BUYER hereunder, except
as may occur in connection with (i) advertising or solicitations
directed to the public generally, (ii) solicitations outside the
designated market area of the Offices and (iii) customers or
borrowers with a banking or other relationship with SELLER or
its affiliates at offices other than the Offices, or who have or
maintain more than one place of business. The covenants and
obligations of SELLER hereunder shall survive the Closing.
8.7 Further Assurances. From and after the date hereof, each
party hereto agrees to execute and deliver such instruments and
to take such other actions as the other party hereto may
reasonably request in order to carry out and implement this
Agreement. Without limiting the foregoing, SELLER agrees to
execute and deliver such deeds, bills of sale, acknowledgments,
and other instruments of conveyance and transfer as, in the
reasonable judgment of BUYER, shall be necessary and appropriate
to vest in BUYER the legal and equitable title to the Assets of
SELLER being conveyed to BUYER hereunder. Further, BUYER, at its
sole cost and expense, shall prepare and shall file, or shall
cause to be prepared and filed, with any appropriate third
parties, any and all documents and notices which are necessary
and proper to transfer to BUYER any security interests and other
rights of SELLER in and to collateral securing the Office Loans
not later than the earlier to occur of exclusion of the relevant
Office Loan from the "put" provisions set forth in Schedule S
hereof or the Option Exercise Date as defined in Schedule S
hereof. SELLER shall cooperate with BUYER in executing any
necessary and proper documents and notices as may be appropriate
in furtherance of the foregoing covenant and consistent with the
terms of this Agreement; provided, however, that nothing
contained herein shall relieve BUYER of its obligations as set
forth herein. The covenants and obligations of the parties
hereunder shall survive the Closing.
8.8 Operation of the Offices. Except as otherwise expressly
provided in this Agreement, or as agreed to in writing between
the parties, after the Closing Date neither SELLER, its
subsidiaries, or affiliates shall be obligated to provide for
any managerial, financial, business, or other services to the
Offices, including without limitation any personnel, employee
benefit, data processing, accounting, risk management, or other
services or assistance that may have been provided to the
Offices prior to the close of business on the Closing Date, and
BUYER shall take such action as may in its judgment appear to be
necessary or advisable to provide for the ongoing operation and
management of, and the provision of services and assistance to,
the Offices after the Closing Date. Upon the Closing, BUYER
shall change the legal name of the Offices and, except for any
documents or materials in possession of the customers of the
Offices (including but not limited to deposit tickets and
checks), shall not use and shall cause the Offices to cease
using any signs, stationery, advertising, documents, or printed
or written materials that refer to the Offices by any name that
includes the words "SELLER" or "Banc One" or the name of any
affiliate of Banc One CORPORATION. Preceding the Closing, SELLER
shall cooperate with any reasonable requests of BUYER directed
to obtaining specifications for the procurement of new signs of
BUYER's choosing for installation by BUYER of new signs
immediately following the close of business on the Closing Date;
provided, however, that BUYER's receipt of all sign
specifications shall be obtained by BUYER in a manner that does
not significantly interfere with the normal business activities
and operations of the Offices and shall be at the sole and
exclusive expense of BUYER. As indicated in, and as limited by,
Section 1.2(c), Banc One will retain its signs located at the
Offices. If removed by BUYER in conjunction with its
installation of new signs, BUYER shall obtain Banc One's
approval for such removal and shall insure that said signs are
removed without damage to same. It is understood by the parties
hereto that, with the exception of the signs, all mounting
facilities for the signs shall be considered as Fixed Assets for
purposes of this Agreement. The covenants of the parties
hereunder shall survive the Closing.
8.9 Information After Closing. For a period of seven (7)
years following the Closing, upon written request of SELLER to
BUYER or BUYER to SELLER, as the case may be, such requested
party shall provide the requesting party with reasonable access
to, or copies of, information and records relating to the
Offices which are then in the possession or control of the
requested party reasonably necessary to permit the requesting
party or any of its subsidiaries or affiliates to comply with or
contest any applicable legal, tax, banking, accounting, or
regulatory policies or requirements, or any legal or regulatory
proceeding thereunder or requests related to customer
relationships at the Offices prior to Closing. In the event of
any such requests, the requesting party shall reimburse the
requested party for the reasonable costs of the requested party
related to such request. The covenants and obligations of the
parties hereunder shall survive the Closing.
8.10 Individual Retirement Accounts. All Individual
Retirement Accounts related to the Offices that shall not have
become IRAs by the close of business on the 30th day following
the Closing shall not be assigned by SELLER to BUYER or assumed
by BUYER, SELLER or Banc One may thereafter, at its option,
elect to retain such Individual Retirement Accounts, advise the
account holders that it has withdrawn its resignation as
custodian or transfer the amount in such Individual Retirement
Accounts to the account holders.
8.11 Covenant Not to Compete. From and after the Closing and
for a period of two (2) years following the Closing Date, SELLER
shall not, and shall not enter into any agreement to, acquire,
lease, purchase, own, operate or use any building, office or
other facility or premises located within a three (3) mile
radius of any Office for the purpose of operating a full service
branch and making loans, accepting deposits or cashing checks;
provided, however, that the foregoing prohibition shall not
apply to (a) performance by SELLER or any current or future
affiliate or successor of SELLER of any of the foregoing
activities utilizing ATMs, CBCTs, ALMs, cash dispensing
machines, remote service facilities, terminals, or similar
devices, or (b) performance by SELLER or any current or future
affiliate or successor of SELLER of the foregoing activities as
a result of a merger or other combination with, or acquisition
of or by, SELLER, or an affiliate thereof with any third party
following the Closing Date. The covenants and obligations of
SELLER hereunder shall survive the Closing.
8.12 Nonsolicitation of Employees. BUYER agrees that for a
period of twelve (12) months from the Closing Date, or for a
period of six months from such earlier date as this Agreement
may be terminated pursuant to Section 9 hereof, neither BUYER
nor any of its subsidiaries or affiliates will;
(a) directly or indirectly solicit for employment or employ
any persons who are employees in the retail group of Banc One
Corporation, Banc One, SELLER or their subsidiaries or
affiliates on the date hereof or;
(b) directly or indirectly solicit for employment or employ
any other persons who are employees of Banc One Corporation,
BANK ONE, SELLER or their subsidiaries or affiliates on the date
hereof and with whom BUYER has had contact or who became known
to BUYER solely in conjunction with any phase of the transaction
contemplated hereby, whether prior to execution of this
Agreement or subsequent thereto. As used solely in this
subsection 8.12(b), the term "solicit" shall not be deemed to
include general advertisements or general solicitations that are
not targeted or directed specifically to individuals who are
employees of Banc One Corporation, Banc One, SELLER or their
subsidiaries or affiliates. Subject to the prohibitions
contained in subsection 8.12(a), nothing in this section 8.12(b)
shall prohibit BUYER or BUYER's affiliates or subsidiaries from
hiring a person covered by this subsection 8.12(b) who contacts
BUYER on their own initiative (and not in response to
solicitation by BUYER in violation of this section) or a person
covered by this subsection 8.12(b) who is no longer in the
employ of Banc One Corporation, Banc One, SELLER or their
subsidiaries or affiliates at the time of such solicitation.
The obligations and covenants of BUYER hereunder shall survive
the Closing or any earlier termination of this Agreement
pursuant to Section 9 hereof or as termination may otherwise be
provided in this Agreement.
9. Termination.
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9.1 Termination By Mutual Agreement. This Agreement may be
terminated and the transactions contemplated hereby may be
abandoned by mutual consent of the parties authorized by a vote
of a majority of the Board of Directors (or by the vote of the
Executive Committee of such Board, if so empowered) of each of
SELLER and BUYER.
9.2 Termination By SELLER. This Agreement may be terminated
and the transactions contemplated hereby abandoned by a vote of
a majority of the Board of Directors (or by the vote of the
Executive Committee of such Board, if so empowered) of SELLER:
(a) in the event of a material breach by BUYER of this
Agreement; or
(b) in the event any of the conditions precedent specified
in Section 5.1 of this Agreement has not been met as of the date
required by this Agreement and, if not so met, has not been
waived by SELLER; or
(c) in the event any regulatory approval for the
consummation of the Acquisition is denied by the applicable
regulatory authority or in the event that at any time prior to
the Closing Date it shall become reasonably certain to SELLER,
with the advice of counsel, that a regulatory approval required
for consummation of the Acquisition will not be obtained within
a time reasonably satisfactory to SELLER; or
(d) on or after June 30, 1998 (the "Termination Date") if
the Closing has not then occurred unless the failure to
consummate by such date is due to a breach of this Agreement by
SELLER; or
(e) at the option of SELLER in the event that BUYER enters
into an agreement or agreements, or intends to enter into an
agreement or agreements, providing for the merger, acquisition,
or sale of substantially all of the assets of BUYER or its
parent company such as would require prior regulatory approval
under the Change in Bank Control Act, as amended, or the Bank
Holding Company Act of 1956, as amended, or similar law or
regulation; or
(f) at the option of SELLER in the event that there is a
material adverse change in the financial condition or results of
operation of BUYER, or pending or threatened litigation or
claims with respect to the transactions contemplated by this
Agreement which, in the opinion of SELLER, may materially hinder
or delay the ability of the parties to consummate the
transactions contemplated by this Agreement; or
(g) at the option of SELLER in the event that consents to
the transactions contemplated by this Agreement from such third
parties as SELLER may reasonably deem necessary or appropriate
are not available prior to the Closing Date without material
additional cost or expense to SELLER, or in the event that
releases of SELLER by such third parties as SELLER may
reasonably deem necessary or appropriate are not available prior
to the Closing Date without material additional cost or expense
to SELLER; or
(h) in the event Banc One does not approve, in writing,
BUYER as an "Approved Subsequent Buyer" as defined in the Banc
One Agreement.
9.3 Termination By BUYER. This Agreement may be terminated
and the transactions contemplated hereby abandoned by a vote of a
majority of the Board of Directors (or by the vote of the Executive
Committee of such Board, if so empowered) of BUYER:
(a) in the event of a material breach by SELLER of this
Agreement; or
(b) in the event any of the conditions precedent specified
in Section 5.2 of this Agreement has not been met as of the date
required by this Agreement and, if not so met, has not been
waived by BUYER; or
(c) in the event any regulatory approval required for
consummation of the Acquisition is denied by the applicable
regulatory authority or in the event that at any time prior to
the Closing Date it shall become reasonably certain to BUYER,
with the advice of counsel, that a regulatory approval required
for consummation of the Acquisition will not be obtained;
(d) on or after the Termination Date if the Closing has not
then occurred unless the failure to consummate by such time is
due to a breach of this Agreement by BUYER; or
(e) in the event Banc One does not approve, in writing,
BUYER as an "Approved Subsequent Buyer" as defined in the Banc
One Agreement.
9.4 Effect of Termination. The termination of this Agreement
pursuant to Sections 9.2 or 9.3 of this Article 9 shall not
release any party hereto from any liability or obligation to the
other party hereto arising from (i) a breach of any provision of
this Agreement occurring prior to the termination hereof or (ii)
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.
10. Deposits.
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BUYER and SELLER acknowledge the deposit by SELLER of the sum
of $1.275 million (the "Deposit" herein) with Banc One.
BUYER agrees that BUYER shall pay to SELLER, upon
demand, the sum of $375,000 in the event that SELLER elects to
terminate the transactions contemplated by this Agreement
pursuant to the provisions of section 9.2 of this Agreement.
The foregoing payment shall be due and owing in conjunction with
the foregoing, irrespective of whether BUYER elects to terminate
the transactions contemplated by this Agreement pursuant to
section 9.3(b) (due to lack of regulatory approval under section
5.2(a) of this Agreement) or 9.3(c) of this Agreement. Any such
payment shall not be deemed to constitute liquidated damages or
a waiver by SELLER of any rights in law or in equity arising out
of a breach by BUYER of the terms and conditions of this
Agreement. In the event the transactions contemplated by this
Agreement are closed in accordance with the terms hereof, BUYER
elects to terminate the transactions contemplated by this
Agreement pursuant to the provisions of sections 9.3(a) or (b)
of this Agreement or in the event that the transactions are
terminated pursuant to section 9.1 of this Agreement no sum
shall be due or owing by BUYER to SELLER under this provision.
Notwithstanding anything contained herein, no sum shall be due
or owing by BUYER to SELLER under this provision as a result of
the termination of this Agreement by either BUYER or SELLER
pursuant to section 9.3(e) or 9.2(h), respectively.
11. Miscellaneous Provisions.
- ------------------------------
11.1 Substitution of Parties. BUYER hereby agrees and
consents to SELLER substituting a whollyowned subsidiary
financial institution of SELLER as the party to transfer the
Assets, Deposits , Liabilities, Office Loans and other assets
and liabilities to BUYER under the terms and conditions of this
Agreement. Notwithstanding any substitution of parties by
SELLER pursuant to this Agreement, SELLER shall remain obligated
to perform its agreements and covenants regarding enforcement of
rights against Banc One as expressly provided herein.
11.2 Expenses. Except as and to the extent specifically
allocated otherwise herein, each of the parties hereto shall
bear its own expenses, whether or not the transactions
contemplated hereby are consummated.
11.3 Certificates. All statements contained in any
certificate ("Certificate") delivered by or on behalf of SELLER
or BUYER pursuant to this Agreement or in connection with the
transactions contemplated hereby shall be deemed to be
representations and warranties of the party delivering the
Certificate hereunder. Each such Certificate shall be executed
on behalf of the party delivering the Certificate by duly
authorized officers of such party.
11.4 Termination of Representations and Warranties. The
respective representations and warranties of SELLER and BUYER
contained or referred to in this Agreement or in any
Certificate, schedule, or other instrument delivered or to be
delivered pursuant to this Agreement shall terminate at the
Closing, except for:
(a) those representations and warranties contained in any
warranty deeds delivered by SELLER to BUYER at the Closing;
(b) those representations and warranties contained in any
bill of sale relating to the Assets delivered by SELLER to BUYER
at Closing;
(c) those representations and warranties contained in any
instrument of assumption or in any Certificate in the forms of
Schedule I and Schedule N, respectively, attached hereto and
delivered by BUYER to SELLER at the Closing;
(d) those representations and warranties contained in any
Certificate in the form of Schedule K attached hereto, delivered
by SELLER to BUYER at the Closing; and
11.5 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, but only as affects the
party signing such instrument:
(a) any inaccuracies in the representations or warranties of
the other party contained or referred to in this Agreement or in
any document delivered 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; and
(d) satisfaction of any condition to the obligations of the
waiving party pursuant to this Agreement.
11.6 Notices. All notices and other communications hereunder
may be made by mail, handdelivery or by courier service and
notice shall be deemed to have been given when received;
provided, however, if notices and other communications are made
by nationally recognized overnight courier service for overnight
delivery, such notice shall be deemed to have been given one
business day after being forwarded to such a nationally
recognized overnight courier service for overnight delivery.
If to SELLER:
Community Trust Bancorp, Inc.
Attention: Burlin Coleman
208 North Mayo Trail
P.O. Box 2947
Pikeville, Kentucky 41501-2947
With a copy to:
Greenebaum Doll & McDonald, PLLC
Attention: Christopher C. Spears
1400 Vine Center Tower
333 West Vine Street
Lexington, Kentucky 40507-1665
If to BUYER:
The Peoples Banking and Trust Company
138 Putnam Street
Marietta, Ohio 45750
Attention: Robert E. Evans
With a copy to:
Charles Hunsaker
Peoples Bancorp, Inc.
138 Putnam Street
Marietta, Ohio 45750
or such other person or address as any such party may designate
by notice to the other parties, and shall be deemed to have been
given as of the date received.
11.7 Parties in Interest: Assignment: Amendment. The rights
and obligations of each individual bank holding company which is
a party hereto shall be exclusively and individually binding
upon, and shall inure exclusively and individually to the
benefit of, that bank holding company and its respective
permitted successors and assigns. Representations, warranties,
and covenants of SELLER contained herein shall be deemed made by
the appropriate respective banking association which is the
owner of the respective asset or obligor of the respective
liability related thereto and shall not be deemed made by or on
behalf of any banking association for any other banking
association. 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 a
party hereto (or a permitted 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 by BUYER by action of law or otherwise, and
this Agreement cannot be amended or modified, except by a
written agreement executed by the parties hereto or their
respective permitted successors and assigns.
11.8 Headings. The headings, table of contents, and index to
defined terms (if any) 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.
11.9 Terminology. The specific terms of art that are defined
in various provisions of this Agreement shall apply throughout
this Agreement (including without limitation each Schedule
hereto), unless expressly indicated otherwise. In addition, the
following terms and phrases shall have the meanings set forth
for purposes of this Agreement (including such Schedule):
(a) The term `business day" shall mean any day other than a
Saturday, Sunday, or a day on which either SELLER or BUYER is
closed in accordance with applicable law or regulation. Any
action, notice, or right which is to be taken or given or which
is to be exercised or lapse on or by a given date which is not a
business day may be taken, given, or exercised, and shall not
lapse, until the next business day following.
(b) The term "affiliate" shall mean, with respect to any
person, any other person directly or indirectly controlling,
controlled by or under common control with such person.
(c) The term "Permitted Exceptions" shall mean, with respect
to the Owned Real Estate and the Leased Real Estate, (i) those
five standard exceptions appearing as Schedule B items in a
standard ALTA owners or leasehold title insurance policy, and
any other exceptions, restrictions, easements, rights of way,
and encumbrances referenced in the Title Commitment delivered by
SELLER to BUYER as indicated in Section 2.1(a) of this
Agreement; (ii) statutory liens for current taxes or assessments
not yet due, or if due not yet delinquent, or the validity of
which is being contested in good faith by appropriate
proceedings; (iii) such other liens, imperfections in title,
charges, easements, restrictions, and encumbrances (but in all
cases of Owned Real Estate excluding those which secure borrowed
money) which, individually and 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.
(d) The term "person" shall mean any individual,
corporation, partnership, limited liability company,
association, trust, or other entity, whether business, personal,
or otherwise.
(e) Unless expressly indicated otherwise in a particular
context, the terms "herein," "hereunder," "hereto," "hereof,"
and similar references refer to this Agreement in its entirety
and not to specific articles, sections, schedules, or
subsections of this Agreement. Unless expressly indicated
otherwise in a particular context, references in this Agreement
to enumerated articles, sections, and subsections refer to
designated portions of this Agreement (but do not refer to
portions of any Schedule unless such Schedule is specifically
referenced) and do not refer to any other document.
(f) The term "subsidiary" shall mean a corporation,
partnership, limited liability company, joint venture, or other
business organization more than 50% of the voting securities or
interests in which are beneficially owned or controlled by the
indicated parent of such entity.
11.10 Flexible Structure. References in this Agreement to
federal or state laws or regulations, jurisdictions, or
chartering or regulatory authorities shall be interpreted
broadly to allow maximum flexibility in consummating the
transactions contemplated hereby in light of changing business,
economic, and regulatory conditions. Without limiting the
foregoing, in the event SELLER and BUYER agree in writing to
alter the legal structure of the Acquisition contemplated by
this Agreement references in this Agreement to such laws,
regulations, jurisdictions, and authorities shall be deemed to
be altered to reflect the laws, regulations, jurisdictions, and
authorities that are applicable in light of such change.
11.11 Press Releases. SELLER or BUYER, as the case may be,
shall approve, in writing prior to issuance, the form and
substance of any press release or other public disclosure
relating to any matters relating to this Agreement issued by the
other.
11.12 Entire Agreement. This Agreement supersedes any and
all oral or written agreements and understandings heretofore
made 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.
11.13 Governing Law. This Agreement shall be governed by,
and construed in accordance with, the laws of the State of Ohio
and the laws of the United States, as well as regulations issued
by relevant agencies thereof.
11.14 Counterparts. This Agreement may be executed in
several counterparts, each of which shall be deemed an original,
but all of which together shall constitute one and the same
instrument.
11.15 Tax Matters. BUYER and SELLER agree that they will
file applicable tax returns and other related schedules and
documents related to their respective interests based on the
allocations in this Agreement.
In Witness Whereof, the parties have entered into this
Agreement as of the date first written above.
The Peoples Banking and Trust Company
By: /s/ ROBERT E. EVANS
Robert E. Evans, President and Chief
Executive Officer
("BUYER")
Community Trust Bancorp, Inc.
By: /s/ BURLIN COLEMAN
Title: CHAIRMAN
("SELLER")
SCHEDULES
TO
OFFICE PURCHASE AND ASSUMPTION AGREEMENT
Schedule A - Description of Owned Real Estate
Schedule B - Description of Leased Real Estate and Third Party Lease
Schedule C - Furniture, Fixtures and Equipment
Schedule D - Assumed Contracts
Schedule E - List of Leases, Safekeeping Items and Agreements
Schedule F - Form of Assignment and Assumption of Lease and
Estoppel Certificate
Schedule G - Deposit Accounts
Schedule H - Office Loans
Schedule I - Form of Certification of BUYER
Schedule J - Form of Opinion of Counsel for BUYER
Schedule K - Form of Certification of SELLER
Schedule L - Form of Opinion of Counsel for SELLER
Schedule M - Form of Assignment of Office Loans, Notes, Agreements and Pledge
Schedule N - Form of Instrument of Assumption
Schedule O - Form of Assignment, Transfer and Appointment of Successor
Custodian for IRAs
Schedule P - Form of Preliminary Closing Statement
Schedule Q - Form of Final Closing Statement
Schedule R - Listing of Employees of Offices
Schedule S - Put Provisions for Office Loans
SCHEDULE A
DESCRIPTION OF OWNED REAL ESTATE
--------------------------------
Point Pleasant - Main Office, 421 Main Street,
Point Pleasant, West Virginia 25550
New Martinsville - 207 Main Street,
New Martinsville, West Virginia 26155
New Martinsville - Steelton - 638 North State Route 2,
New Martinsville, West Virginia 26155
SCHEDULE B
DESCRIPTION OF LEASED REAL ESTATE AND THIRD PARTY LEASE
-------------------------------------------------------
Point Pleasant - North - 2513 Jackson Avenue,
Point Pleasant, West Virginia 25550
Point Pleasant - Mini Branch - 332 Viand Street,
Point Pleasant, West Virginia 25550
SCHEDULE C
FURNITURE, FIXTURES AND EQUIPMENT
---------------------------------
1450 New Martinsville
Asset # Asset Description Cost Acc. Depre Net Book
43400077 LAND 1,000 - 1,000
43400003 drive thru 20,144 10,938 9,206
43400101 AIR CONDITIONER 5,715 1,592 4,123
43400099 PANELS/POSTS 1,909 1,081 828
43400105 REMODELING 715 254 461
43400074 NEW COLUMNS/PORCHES 1,445 1,177 268
43400071 NEW FURNACE 2,064 2,030 34
43400002 banking house 171,750 171,750 -
43400013 PARITIONS-STEEL PAN 925 925 -
43400068 AIR CONDITIONING SYS 1,551 1,551 -
43400069 IMPROVEMENTS 1,468 1,468 -
43400079 IMPROVEMENTS 1,459 1,459 -
43400106 SIDEWALK REPAIR 1,240 246 994
43400070 ASPHALTIC CONCRETE 3,200 3,200 -
43400107 CARPETING 4,212 2,062 2,150
43400115 VERTICALS AND DRAPES 1,256 510 746
43400114 CARPETING 639 199 440
43400109 INDOOR SIGNS-JOHN RYAN 19,438 15,226 4,212
43400108 OUTDOOR SIGNS 15,114 11,839 3,275
43400110 PLASTI-LINE SIGNE 5,075 4,144 930
43400111 GRAPHIC STORAGE BOXES 204 159 45
260,523 231,812 28,712
1451 New Martinsville - Steelton
Asset # Asset Description Cost Acc. Depre Net Book
43400076 LAND 20- (STEELTON) 14,970 - 14,970
43400075 20% LAND (STEELTON) 11,000 - 11,000
43400005 Steelton Branch Bldg 189,162 77,241 111,921
43400001 bldg Steelton 44,000 32,167 11,833
009600032 BANK ONE LIGHTING PROJECT-RETROFIT 4,531 478 4,053
43400073 PARK LOT/PAVING-BRNC 54,678 38,958 15,720
43400072 LANDSCAP/SHRUBS-BRNC 3,316 2,363 953
43400026 CARPETING (BRANCH) 4,192 4,192 -
325,849 155,400 170,449
1456 Point Pleasant - North
Asset # Asset Description Cost Acc. Depre Net Book
44101681 Land 20,000 - 20,000
44101648 Remodeling 85,500 65,191 20,309
44101654 Electrical Work 49,253 37,554 11,699
44101672 Building Architectural Services 38,974 29,717 9,258
44101653 Doors & Windows & Glass 15,000 11,437 3,563
44101673 Remodeling 14,521 11,072 3,449
44101647 Railing Aluminum vs. Wood 13,505 10,297 3,208
44101663 Building Steel & Misc. Metal 12,000 9,150 2,850
44101656 Heating & Air Conditioning 11,659 8,890 2,769
44103257 Lighting Retrofit Project 2,924 155 2,769
44101657 Building Masonry 11,633 8,870 2,763
44101678 Excavating & Backfill 9,500 7,243 2,257
44101661 Plumbing & Drainage 9,355 7,133 2,222
97076066 PAINT INTERIOR WALLS & TRIM 1,936 60 1,875
44101660 Painting 7,500 5,719 1,781
44102007 Roof Repairs 4,350 2,662 1,688
44101652 Remodeling Demolition 6,000 4,575 1,425
44101662 Roofing 5,000 3,812 1,188
44102019 Painting Building 2,430 1,484 946
44101655 Building Fire Escape repair 3,000 2,287 713
44101659 Building Mobilization 2,000 1,525 475
44101644 Building Survey Site 1,800 1,372 428
44102074 Tile Ceramic and Installation at No 688 393 296
44101641 Building Fee Bank Branch 1,100 839 261
44101651 Building Demobilization 1,000 763 238
44101664 Air Conditioning Temp. Entrance Sup 725 553 172
44101666 Window Grids Wooden 525 400 125
44101671 Building Architectural Services 445 339 106
44101640 Building Permit 317 241 75
44101646 Building Appraisal of Prof. Bldg. 200 152 48
44101677 Concrete Slab & Sidewalk 46,175 35,207 10,968
44101649 Concrete Foundation 11,000 8,387 2,613
44101680 Landscaping 4,750 3,622 1,128
44101650 Concrete Work 1,685 1,285 400
44101676 Paving of Alley 835 637 198
44101679 Landscaping Shrubbery & Mulch 689 526 164
44103261 Furnace Trane w/ 3 ton AC unit 7,132 1,087 6,044
44101810 Bookcase 507 507 -
44101811 Bookcase 192 192 -
44101812 File Cabinet with Four Dividers 285 285 -
44101681 Land 20,000 - 20,000
44101813 File Cabinet with Eight Dividers 298 298 -
44101814 Credenza 545 545 -
44101815 File Cabinet 154 154 -
44101816 Chair Lounge 108 108 -
44101817 Desk LP Main 812 812 -
44101818 Chair Posture 169 169 -
44101819 File Cabinet Special 299 299 -
44101820 Stool Teller 206 206 -
44101821 Stool Teller 206 206 -
44101822 Stool Teller 206 206 -
44101823 Table & Chairs 210 210 -
44101824 Pictures & Plaques 253 253 -
44101825 Stool Teller 206 206 -
44103182 Camera Polaroid Photo System for Cr 1,564 584 980
44102556 Typewriter IBM W/W 1 000 631 306 324
44101658 Equipment 3,000 3,000 -
44102520 Carpet for 421 MAIN ST. 829 306 523
44101645 Carpet 1,754 1,754 -
44101667 Carpet 384 384 -
44101669 Draperies & Blinds 598 598 -
44102284 Signs and installation 7,776 6,115 1,661
44101668 Signs 130 130 -
44101670 Signs Directional 950 950 -
44101674 Signs Directional 3,164 3,164 -
44101944 Sign 5,600 5,600 -
44101643 Vault, Lockers, Etc. 101,963 77,744 24,219
44101642 Teller Tube System Pneumatic 10,233 7,802 2,431
44102560 Encoders Check (2) Maverick Model 2 2,957 1,398 1,559
24847 NEW TOYOCOM MODEL 50 CURRENCY COUNT 1,479 211 1,267
44101665 Vault Floor Reinforcing 1,575 1,201 374
44101675 Counter Top 452 344 107
554,797 400,881 153,917
1457 Point Pleasant - Mini
Asset # Asset Description Cost Acc. Depre Net Book
44101628 Tile 400 190 210
44101620 Glass Insulated 440 294 146
44101624 Electrical Work 139 77 61
44101936 Chair 451 451 -
44101629 Carpet & Tile 2,175 2,175 -
44101630 Draperies 2,340 2,340 -
44102285 Signs and istallation 15,646 12,303 3,342
44102378 Sign Merchandising, Drive Up Banner 627 411 216
44103272 Coin Sorter w/Stand and Printer 2,857 782 2,075
44103200 PAL Construction 2,591 604 1,987
44102233 Coin Sorter Brandt 953 2,666 2,250 416
30,331 21,877 8,454
1458 Point Pleasant - Main Office
Asset # Asset Description Cost Acc. Depre Net Book
44101631 Building Musgrave 88,500 48,498 40,002
44101685 Remodel Musgrave Building 11,946 2,843 9,103
44102225 Roof Repair, Materials, and Labor 2,924 1,591 1,332
44101621 Building Service Breaker 1,865 1,049 816
44102002 Remodeling & Design 2,029 1,292 737
44101626 Electrical Work 1,190 658 532
44101622 Electrical Work 706 394 312
44101993 Remodeling 741 466 275
44102003 Remodeling & Design 692 441 251
44101636 Remodeling of Musgrave 8,884 8,721 163
44101625 Electrical Work 240 133 107
44101638 Heating & Air Cond. 3,597 3,531 66
44101639 Building Materials for Musgrave 2,584 2,522 62
44102222 Remodeling and Improvements 125 69 56
44101634 Remodeling of Musgrave 1,874 1,856 17
44101632 Remodeling of Musgrave 6,147 6,147 -
44101633 Remodeling of Musgrave 2,130 2,130 -
44102540 Furniture 2,724 890 1,835
44102550 Stools (5) Kimball Fully Upholstere 2,025 619 1,406
44102202 File Cabinets (3) Lateral 1,701 961 740
44101946 File Cabinet (5) 4 Drawer 4,738 4,068 670
44102555 Stools (2) Kimball Q354201 U Burgand 810 248 562
44101957 File Cabinet 4 Drawer Lateral 1,701 1,218 484
44102288 Table Oval Walnut 945 467 478
44102283 File Cabinet Fairfield Lateral 953 479 474
44101951 Furniture 2,103 1,644 459
44101950 Workstation 2,137 1,685 452
44102215 Furniture 953 529 424
44101683 Furnace Installation 1,860 1,439 421
44102088 File Cabinet Card 1,002 583 419
44102533 File Cabinet Unit Kimball Modular 610 206 403
44102021 File Cabinet Lateral 1,134 732 402
44102059 Pictures and Greenery 933 567 366
44102364 File Cabinet 4 Drawer Lateral ANDS 588 253 335
44101956 File Cabinet 4 Drawer Legal 1,146 820 326
44102546 Stool Kimball Q354201 U 405 128 277
44101945 File Cabinet (2) 4 Drawer 1,895 1,627 268
44102040 Chairs Conf 2 Side-Arm Chairs and 4 703 436 267
44102038 Pictures and Greenery 677 420 257
44102264 Furniture National 2421 CDAW Center 519 267 253
44102122 Chair Swivel Tilt 554 307 247
44102033 File Cabinet 4 Drawer Lateral 567 355 212
44101949 File Box Signature Card 3X5 1,060 849 211
44102041 Desk, Hutch, and Stand 532 330 202
44102065 Pictures (2) Prints and Decorations 528 332 195
44102008 File Cabinet 4 Drawer Lateral 567 383 184
44101948 File Cabinet 4 Drawer 948 784 164
44101947 File Cabinet (2) 4 Drawer 1,006 863 142
44102015 Chair St Timothy 392 259 134
44102016 Chair St Timothy 392 259 134
44102017 Chair St Timothy 392 259 134
44102018 Chair St Timothy 392 259 134
44101996 Desk 214 148 67
44101998 Furniture Hutch 181 125 56
44101635 Panels & Paint 65 65 -
44101826 Chair Steno 128 128 -
44101827 Chair Steno 128 128 -
44101829 File Cabinet Steel 330 330 -
44101830 File Cabinet 218 218 -
44101831 File Cabinet Fire Proof 2,079 2,079 -
44101832 Desk 173 173 -
44101833 Desk & Posture Chair 722 722 -
44101834 Desk & Posture Chair 722 722 -
44101835 Desk & Posture Chair 722 722 -
44101836 Furniture Computer 1,103 1,103 -
44101837 File Cabinet 684 684 -
44101839 File Cabinet Checks 1,015 1,015 -
44101840 File Cabinet & Chair 1,405 1,405 -
44101841 File 1,565 1,565 -
44101842 Chair 174 174 -
44101843 Chair 174 174 -
44101844 Chair 174 174 -
44101845 Workstation 964 964 -
44101846 Files 537 537 -
44101847 Storage Units 315 315 -
44101848 Furniture Computer 3,280 3,280 -
44101849 Storage File 520 520 -
44101850 Desk 461 461 -
44101851 File Cabinet 923 923 -
44101852 File Cabinet Fire Proof 236 236 -
44101853 File Cabinet Fire Proof 236 236 -
44101854 File Cabinet Fire Proof 236 236 -
44101855 File Cabinet Fire Proof 236 236 -
44101856 Stand Printer 313 313 -
44101858 File Cabinet Fire Proof 1,034 1,034 -
44101859 File Cabinet Fire Proof 1,034 1,034 -
44101860 Desk & Credenza 2,041 2,041 -
44101861 File Cabinet Fire Proof 977 977 -
44101862 File Cabinet Fire Proof 977 977 -
44101863 File Cabinet Fire Proof 977 977 -
44101864 File Cabinet Fire Proof 977 977 -
44101868 File Cabinet 977 977 -
44101869 File Cabinet 977 977 -
44101873 File Cabinet Fire Proof 977 977 -
44101877 Chair 488 488 -
44101878 File Cabinet 410 410 -
44101881 File Cabinet 215 182 182 -
44101882 File Cabinet 215 182 182 -
44101883 File Cabinet 215 182 182 -
44101884 File Cabinet 215 182 182 -
44101885 File Cabinet 215 182 182 -
44101886 File Cabinet 215 182 182 -
44101887 File Cabinet 215 182 182 -
44101888 File Cabinet 215 182 182 -
44101889 File Cabinet 215 182 182 -
44101890 File Cabinet 215 182 182 -
44101891 File Cabinet 215 182 182 -
44101892 File Cabinet 215 182 182 -
44101895 Chairs S-1213 225 225 -
44101896 Chairs S-1213 225 225 -
44101897 Chairs S-1213 225 225 -
44101898 Chairs S-1213 225 225 -
44101899 Chairs S-1213 225 225 -
44101900 Chairs S-1213 225 225 -
44101901 Chairs S-1213 225 225 -
44101902 Chairs S-1213 225 225 -
44101905 Chairs S-1213 225 225 -
44101906 Chairs S-1213 225 225 -
44101907 Chairs S-1213 225 225 -
44101908 Chairs S-1213 225 225 -
44101909 Chairs S-1213 225 225 -
44101910 Chairs S-1213 225 225 -
44101911 Chairs S-1213 225 225 -
44101912 Chairs S-1213 225 225 -
44101913 Chairs S-1213 225 225 -
44101914 Chairs S-1213 225 225 -
44101915 Chairs S-1213 225 225 -
44101916 Chairs S-1213 225 225 -
44101917 Chairs S-1213 225 225 -
44101918 Chairs S-1213 225 225 -
44101919 Chairs S-1 137 360 360 -
44101920 Chairs S-1 137 360 360 -
44101921 Chairs S-1 137 360 360 -
44101922 Chairs S-1 137 360 360 -
44101923 Chairs S-1 137 360 360 -
44101924 Chairs S-1 137 360 360 -
44101925 Chairs S-1 137 360 360 -
44101926 Chairs S-1 137 360 360 -
44101927 Loveseat St 337 518 518 -
44101928 Loveseat St 337 518 518 -
44101929 Chair 318 318 -
44101930 Chair 318 318 -
44101931 Chair 318 318 -
44101932 Chair 318 318 -
44101933 Chair Swivel 394 394 -
44101934 Credenza 345 345 -
44101935 File Cabinet 1,012 1,012 -
44101937 Chair Steel Base 186 186 -
44101938 Chair Steel Base 186 186 -
44101939 File Cabinet with Lock 1,528 1,528 -
44101940 File Cabinet 524 524 -
44102166 Alarm System 10,551 8,100 2,450
44102575 Equipment Popcorn Machine Kingery 2,067 875 1,192
44102545 Fax LDC-650 Mila 2,014 1,011 1,003
44102526 Fax Mita 2,300 1,307 994
44103181 Camera Polaroid Photo System for Cr 1,564 584 980
44102241 Alarm System 3,253 2,717 536
44102410 Copier 5034 1,060 659 401
44102557 Typewriter IBM W/W 1 000 631 306 324
44102521 Music Receivers (2) CD PLAYERS (2) 519 297 222
44102380 Vacuum Cleaner 636 416 219
44102544 Calculators (2) Canon BP-1225 403 202 201
44102363 Calculators (3) Canon model CP1213D 604 412 192
44102226 Fax Swintec 741 637 104
44102224 Security Terminal and Cable 739 635 104
44102181 Fax Panasonic 847 781 66
44102558 Fax Accura 144+/SOF 146 116 30
44101118 Typewriter S640 508 508 -
44101803 Copier 9,000 9,000 -
44101865 Typewriter 835 835 -
44101866 Typewriter 835 835 -
44101870 Typewriter 835 835 -
44101893 Microfiche Trays 182 182 -
44101894 Microfiche Trays 182 182 -
44102013 Typewriter S640 592 592 -
44102014 Copier 5046 777 777 -
44102103 Typewriter Swintec Typewriter 529 529 -
44101867 Draperies & Blinds 569 569 -
44101875 Carpet 1,916 1,916 -
44101879 Draperies 1,764 1,764 -
44101880 Draperies 192 192 -
44102305 Sign Interior signage, John Ryan Co 20,118 15,820 4,298
44102168 Sign Merchandising System 9,750 8,218 1,532
44102286 Signs and istallation 6,579 5,174 1,406
44102306 Sign Interior signage, John Ryan Co 1,223 962 261
44102310 Sign Merchandising System 324 253 71
44102559 Printer Laserjet 4 Printer 2,346 1,859 487
44102524 PC 486DX2 66MHZ VESA SYSTEM 2,248 2,068 180
44102563 Printer 2391 PRO IBM 247 193 54
44101952 Printer LX81 0 210 210 -
44101983 PC & Printer 2,303 2,303 -
44102028 Printer Epson LO Model I 1 70 24-Pin 932 932 -
44102029 PC 386 Equity SX/1 6 Plus, 2MB Hard 2,973 2,973 -
44102076 Phone System 30,436 30,436 -
44102078 Phone Equipment 1,500 1,500 -
44102079 Modem Internal, Mousw, 1 mb Simms 337 337 -
44102090 Phone Line Installation 45 45 -
44102097 Printer Laserjet III 1,723 1,723 -
44102110 Phone Line Equipment and Service 678 678 -
44102144 Printer Laser Model KX-P4410 and 2 1,245 1,245 -
44102155 PC Dell 433L, Modem, 120MB HD, 512K 2,494 2,494 -
44102169 PC Dell 433L 2,705 2,705 -
44102177 Printer HP LaserJet 1,485 1,485 -
44102203 PCs (4) & Printers (4) 2,080 2,080 -
44102217 Printer Panasonic KX-P441 0 Laser 1,044 1,044 -
44102218 PC 486DX Ultra 50 MHZ Mini Tower Ca 3,663 3,663 -
44102219 PC 486DX Ultra 50 MHZ Mini Tower Ca 3,663 3,663 -
44102240 PC 486DX 5OMHZ System 2,014 2,014 -
44102271 PC COMPAQ 386S/20N 720 720 -
44102337 PC 486DX 33MHz Vesa System 1,907 1,907 -
44102356 PC 486SLC 33MHz 795 795 -
44102369 Printer Panasonic KX-P4410 laser 742 742 -
44102320 ATM Surrounds 4,298 3,283 1,015
44101808 ATM Minibank 30,707 30,707 -
44102517 Software Loan Processor Plus Laser 874 847 27
44101317 Software Wordperfect 5.1 525 525 -
44101318 Software Lotus 1-2-3 v2.3 525 525 -
44102080 Software Windows 3.1, and MS Word f 510 510 -
44102209 Software Serengeti Trust Processing 424 424 -
44102338 Software Lotus 123; Wordperfect 6.0 711 711 -
44102120 Vehicle 91 Chevy S-1 0 Blazer 13,923 13,923 -
44101992 Teller VAT System Underground 12,183 7,758 4,424
44102010 Coin Sorter 3,582 2,217 1,365
44102426 Encoder Check Maverick M 201 Electr 1,776 1,075 701
44102230 Currency Counter Magner Model 35 1,479 1,259 219
44101995 Coin Sorter 542 345 197
44101874 Currency Counter 2,635 2,532 103
44101997 Drawer Pedestal 118 74 44
44101857 Safe Deposit Boxes 2,325 2,282 43
44101871 Terminal Display 1,152 1,116 36
44101872 Terminal Display 1,152 1,116 36
44101801 Vault Door 12,000 12,000 -
44101802 Teller Station (3) Drive-in 13,000 13,000 -
44101804 Vault Door and Frame 26,000 26,000 -
44101805 Safe Deposit Boxes (958) 9,800 9,800 -
44101806 Vault Safes (2) Door 9,000 9,000 -
44101807 Teller Driveup Equipment (4) 32,000 32,000 -
44101809 Teller Machines (7) 9,800 9,800 -
44101828 Coin Sorter 1,979 1,979 -
44101838 Safe Deposit Boxes 6,931 6,931 -
44101876 Coin Sorter WRl 00 18,512 18,512 -
44101953 Terminal Teller 321 321 -
44101954 Terminal Teller 321 321 -
44101955 Terminal Teller 321 321 -
44101958 Terminal Teller 1,017 1,017 -
44101959 Terminal Teller 1,017 1,017 -
44101960 Terminal Teller 1,017 1,017 -
44101961 Terminal Teller 1,017 1,017 -
44101962 Terminal Teller 1,017 1,017 -
44101963 Terminal Teller 1,017 1,017 -
44101964 Terminal Teller 1,017 1,017 -
44101965 Terminal Teller 1,017 1,017 -
44101966 Terminal Teller 1,017 1,017 -
44101967 Terminal Teller 1,017 1,017 -
44101968 Terminal Teller 1,017 1,017 -
44101969 Terminal Teller 1,017 1,017 -
44101970 Terminal Teller 1,017 1,017 -
44101971 Terminal Teller 1,017 1,017 -
44101972 Terminal Teller 1,017 1,017 -
44101973 Terminal Teller 1,017 1,017 -
44101974 Terminal Teller 1,017 1,017 -
44101975 Terminal Teller 1,017 1,017 -
44101976 Terminal Teller 1,017 1,017 -
44101977 Terminal Teller 1,017 1,017 -
44101978 Terminal Teller 1,017 1,017 -
44101979 Terminal Teller 1,017 1,017 -
44101980 Terminal Teller 1,017 1,017 -
44101981 Terminal Teller 1,017 1,017 -
44101982 Terminal Teller 1,017 1,017 -
628,527 534,986 93,541
SCHEDULE D
ASSUMED CONTRACTS
-----------------
TO BE PROVIDED
SCHEDULE E
LIST OF LEASES, SAFEKEEPING ITEMS AND AGREEMENTS
------------------------------------------------
New Martinsville - 207 Main Street - 1,174 Safe Deposit Boxes
New Martinsville - Steelton - 638 North State Route 2 - 207 Safe Deposit Boxes
Point Pleasant - Main Office - 421 Main Street - 1,777 Safe Deposit Boxes
Point Pleasant - North - 2513 Jackson Avenue - 0 Safe Deposit Boxes
Point Pleasant - Mini Branch - 332 Viand Street - 0 Safe Deposit Boxes
SCHEDULE F
FORM OF ASSIGNMENT AND ASSUMPTION OF LEASE AND ESTOPPEL CERTIFICATE
-------------------------------------------------------------------
This Agreement made and entered into as of the day of , 199_ by
and between Community Trust Bancorp, Inc., a Kentucky
corporation (the "Assignor"), and The Peoples Banking and Trust
Company, a _________________ corporation (the"Assignee").
WITNESSETH:
WHEREAS, Assignor, or its prior party in interest, entered into
a Lease Agreement (the "Lease") with ("Lessor") dated
________________, 199_ for the real property described in
Exhibit A attached hereto and made a part hereof (the
"Premises"); and
WHEREAS, Assignor has the right to assign all or any portion of
its interest in the Premises and Lease; and
WHEREAS, Assignor desires to assign all of its right, title and
interest in and to the Premises and the Lease to Assignee and
Assignee desires to accept Assignor's interest in the Premises
and the Lease.
NOW, THEREFORE, for good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged by
Assignor, the parties hereby agree as follows:
1. Assignor hereby assigns and transfers all of its right, title
and interest in and under said Lease, to Assignee effective as
of the date hereof for the term of said Lease, and all renewal
terms, if any, subject to the rental, covenants, agreements,
provisions and conditions of said Lease.
2. Assignee hereby assumes, for the benefit of the Lessor, and
Assignor, the performance of all of the covenants, agreements,
provisions and conditions of said Lease on the part of the
Lessee to be performed and hereby agrees to perform all of said
covenants, agreements, provisions and conditions hereof, and
with the full force and effect as if the Assignee had signed the
Lease originally as Lessee named therein.
3. Assignee agrees to indemnify, defend and hold Assignor
harmless from and against any and all claims, damages, losses,
costs or expenses arising out of or related to Assignee's
failure to perform any of the covenants, provisions, and
conditions of said Lease.
IN WITNESS WHEREOF, the parties hereto have signed, sealed and
delivered this instrument on the date first above written.
Signed and acknowledged Community Trust Bancorp, Inc.
in the presence of
_____________________________ By:_____________________________
Witness
______________________________ The Peoples Banking and Trust Company
Witness
______________________________ By:_____________________________
Witness
_____________________________
Witness
State of ___________)
County of _________) ss:
Before me, a Notary Public in and for said County and State, on
this _____ day of ___________, 199__, personally appeared
_______________ of Community Trust Bancorp, Inc., a Kentucky
corporation and acknowledged the signing of the foregoing
instrument as his free act and deed for, and on behalf of the
association.
________________________________
Notary Public
State of ____________ )
County of ___________ ) ss:
Before me, a Notary Public in and for said County and State, on
this ____ day of _________________, 199_, personally appeared
__________________ of The Peoples Banking and Trust Company, a
______________ corporation and acknowledged the signing of the
foregoing instrument as his free act and deed for the uses and
purposes therein mentioned.
__________________________________
Notary Public
This Instrument prepared by: Edward A. Receski
Greenebaum Doll & McDonald, PLLC
333 W. Vine Street, Suite 1400
Lexington, Kentucky 40507
Consent of Landlord and Release of Liability
____________________, hereby consents to the above Assignment
and Assumption of Lease Agreement and hereby releases Community
Trust Bancorp, Inc. from any and all liability under said Lease
from and after the date hereof.
Witnesses: ___________________________
________________________ By:________________________
________________________ By:________________________
SCHEDULE G
DEPOSIT ACCOUNTS
----------------
TO BE PROVIDED
SCHEDULE H
OFFICE LOANS
------------
TO BE PROVIDED
SCHEDULE I
FORM OF CERTIFICATION OF BUYER
------------------------------
We hereby certify:
(i) That the undersigned,_______________, is the _______________
and the undersigned ___________ is the ___________ of The
Peoples Banking and Trust Company ("BUYER");
(2) That all representations and warranties of BUYER as set
forth in the Office Purchase and Assumption Agreement dated
December ___, 1997 by and between BUYER and Community Trust
Bancorp, Inc. ("SELLER" herein; the "Agreement" herein),
including those set forth in Section 3.2 of said Agreement, are
true and correct in all material respects as of this date and
with the same effect as though all such representations and
warranties had been made on and as of this date;
(3) That each and all of the covenants and agreements of BUYER
to be performed or complied with at or prior to closing pursuant
to said Agreement have been either duly performed and complied
with in all material respects by BUYER, or waived in writing by
SELLER;
(4) That all filings and registrations with and notifications to
all federal and state authorities required for BUYER's
consummation of the Acquisition being the subject of said
Agreement have been made, all approvals and authorizations of
all federal and state authorities required for BUYER's
consummation thereof have been received and are in full force
and effect, and all applicable waiting periods have passed;
(5) That the Board of Directors of BUYER has taken all corporate
action necessary by it to effectuate the Agreement and the
Acquisition contemplated thereby and said Agreement has been
approved by the shareholders of BUYER to the extent required by
law; and
(6) That as of the date hereof there is no litigation,
investigation, inquiry or proceeding pending or threatened in or
by any court or agency of any government or by any third party
which in the judgment of the executive officers of BUYER, with
the advice of counsel, presents a bona fide claim to restrain,
enjoin or prohibit consummation of the transaction contemplated
by the Agreement or which might result in the rescission in
connection with such transaction.
Dated: _____________, _____________,199_
Attest:
__________________________________ __________________________________
SCHEDULE J
FORM OF OPINION OF COUNSEL FOR BUYER
------------------------------------
______________, _____________, 199_
Community Trust Bancorp, Inc.
Attention: ____________________
Gentlemen:
We have acted as special counsel for The Peoples Banking and
Trust Company, a corporation organized under the laws of
___________________ ("BUYER") in connection with BUYER's
purchase of certain assets and assumption of certain liabilities
of Community Trust Bancorp, Inc., a Kentucky corporation
("SELLER"). Such purchase and assumption is to be consummated
pursuant to the terms of an Office Purchase and Assumption
Agreement dated December ____, 1997 ("Agreement") between BUYER
and SELLER. This opinion is furnished to you pursuant to Section
5.1(f) of the Agreement.
We have examined such documents, records and matters of law as
we have deemed necessary for purposes of this opinion, and based
thereupon we are of the opinion that:
1. BUYER has been duly organized and is a validly existing
corporation in good standing under the laws of _______________________.
2. BUYER has all requisite corporate power and authority to
enter into the Agreement and the Agreement has been duly
approved by all requisite corporate action of BUYER, has been
duly executed and delivered by BUYER and is valid and binding
upon BUYER, enforceable in accordance with its terms except to
the extent limited by insolvency, reorganization, liquidation,
readjustment of debt or other laws of general application
relating to or affecting the enforcement of creditor's rights
generally.
3. Neither the execution and delivery of the Agreement nor the
consummation by BUYER of the transaction therein contemplated
will result in the violation of any statute or regulation or any
order or decree of any court or governmental authority (of which
we have knowledge) binding upon BUYER, or its properties, or
conflict with or result in a default under any of the terms and
provisions of the Articles of Incorporation or ByLaws of BUYER
or any indenture, loan agreement or other agreement known to us
by which BUYER is bound.
4. We do not know of any litigation, investigation, inquiry or
other proceeding or governmental investigation pending or
threatened against or related to BUYER, its business or the
transactions contemplated by the Agreement which, in the
judgment of the undersigned, presents a bona fide claim to
restrain, enjoin, or prohibit consummation of the transactions
contemplated by the Agreement or which might result in
rescission thereof.
Very truly yours,
SCHEDULE K
FORM OF CERTIFICATION OF
COMMUNITY TRUST BANCORP, INC.
-----------------------------
We hereby certify:
(1) That the undersigned is the _________________ and the
undersigned is the ______________ of Community Trust Bancorp,
Inc., a Kentucky corporation ("SELLER").
(2) That all representations and warranties of SELLER as set
forth in the Office Purchase and Assumption Agreement dated
__________________, 199_, by and between SELLER and The Peoples
Banking and Trust Company ("BUYER"; the "Agreement" herein),
including those set forth in Section 3.1 of said Agreement, are
true and correct in all material respects as of this date and
with the same effect as though all such representations and
warranties had been made on and as of this date;
(3) That each and all of the covenants and agreements of SELLER
to be performed or complied with at or prior to closing pursuant
to said Agreement have been either duly performed and complied
with in all material respects by SELLER or waived in writing by
BUYER;
(4) That all filings and registrations with and notifications to
all federal and state authorities required for SELLER's
consummation of the Acquisition being the subject of said
Agreement have been made, all approvals and authorizations of
all federal and state authorities required for SELLER's
consummation thereof have been received and are in full force
and effect, and all applicable waiting periods have passed;
(5) That the Board of Directors of SELLER has taken all
corporate action necessary by them to effectuate the Agreement
and the Acquisition contemplated thereby and said Agreement has
been approved by the shareholders of SELLER to the extent
required by law; and
(6) That as of the date hereof there is no litigation,
investigation, inquiry or proceeding pending or threatened in or
by any court or agency of any government or by any third party
which in the judgment of the executive officers of SELLER, with
the advice of counsel, presents a bona fide claim to restrain,
enjoin or prohibit consummation of the transaction contemplated
by the Agreement or which might result in the rescission in
connection with such transaction.
Dated: ________________, 199_
Attest:
Community Trust Bancorp, Inc.
SCHEDULE L
FORM OF OPINION OF COUNSEL FOR
COMMUNITY TRUST BANCORP, INC.
------------------------------
_____________, __________ 199_
The Peoples Banking and Trust Company
Attention: ___________________
Gentlemen:
I am special counsel for Community Trust Bancorp, Inc. a
corporation chartered under the laws of the Commonwealth of
Kentucky ("SELLER") and have acted as special counsel for SELLER
in connection with SELLER's sale of certain assets and
assignment of certain liabilities to The Peoples Banking and
Trust Company ("BUYER"). Such purchase and assumption is to be
consummated pursuant to the terms of an Office Purchase and
Assumption Agreement dated December ____, 1997, (the "Agreement"
herein), by and between BUYER and SELLER; This opinion is
furnished to you pursuant to Section 5.2(f) of the Agreement.
I have examined such documents, records and matters of law as I
have deemed necessary for purposes of this opinion, and based
thereupon I am of the opinion that:
1. SELLER has been duly organized and is a validly existing
corporation in good standing under the laws of the Commonwealth
of Kentucky.
2. SELLER has all requisite corporate power and authority to
enter into the Agreement and the Agreement has been duly
approved by all requisite corporate action of SELLER, has been
duly executed and delivered by SELLER and is valid and binding
upon SELLER, enforceable in accordance with its terms except to
the extent limited by insolvency, reorganization, liquidation,
readjustment of debt or other laws of general application
relating to or affecting the enforcement of creditor's rights
generally.
3. Neither the execution and delivery of the Agreement nor the
consummation by SELLER of the transaction therein contemplated
will result in the violation of any statute or regulation or any
order or decree of any court or governmental authority of which
we have knowledge binding upon SELLER, or its properties, or
conflict with or result in a default under any of the terms and
provisions of the Articles of Incorporation or ByLaws of SELLER
or any indenture, loan agreement or other agreement known to me
by which SELLER is bound.
4. I do not know of any litigation, investigation, inquiry or
other proceeding or governmental investigation pending or
threatened against or related to SELLER, its business or the
transactions contemplated by the Agreement which, in the
judgment of the undersigned, presents a bona fide claim to
restrain, enjoin, or prohibit consummation of the transactions
contemplated by the Agreement or which might result in
rescission thereof.
Very truly yours,
SCHEDULE M
FORM OF ASSIGNMENT OF OFFICE LOANS, NOTES,
AGREEMENTS AND PLEDGE
------------------------------------------
For value received, Community Trust Bancorp, Inc. ("SELLER"),
does hereby assign, without recourse, representation or
warranty, to The Peoples Banking and Trust Company, ("BUYER"),
the promissory notes described in Exhibit "A" attached hereto
and incorporated herein by reference evidencing an indebtedness
to SELLER, as well as any and all documents or instruments
evidencing liens securing such indebtedness.
Dated: _________________, 199
Community Trust Bancorp, Inc.
By: ______________________
Its: ______________________
FORM OF ASSIGNMENT OF PLEDGE
KNOW ALL MEN BY THESE PRESENTS, that for good and valuable
consideration, Community Trust Bancorp, Inc. ("SELLER"), does
hereby assign, without recourse, representation or warranty, to
The Peoples Banking and Trust Company ("BUYER"), all of SELLER's
right, title and interest in the pledge of deposit accounts (the
"Pledge" herein) and other documents or instruments relating to
the liens providing security for the promissory notes (the
"Notes"), described in Exhibit "A" attached hereto and made a
part hereof.
TN WITNESS WHEREOF, SELLER has duly executed this Assignment of
Pledge this
day of ___________, 199_
Assignor:
Community Trust Bancorp, Inc.
By: ___________________________
Its: ____________________________
FORM OF ASSIGNMENT OF AGREEMENTS
KNOW ALL MEN BY THESE PRESENTS that for good and valuable
consideration Community Trust Bancorp, Inc. ("SELLER"), does
hereby assign, without recourse, representation or warranty, to
The Peoples Banking and Trust Company ("BUYER"), all SELLER's
right, title and interest in and to each of the checking account
line of credit relationships between SELLER and a banking
customer of SELLER providing for a checking account line of
credit for such customer from SELLER, which relationships are
identified in Exhibit A attached hereto and made a part hereof,
and BUYER does hereby assume the obligations of SELLER to
provide overdraft line of credit coverage to such customers
following the Closing on such terms and conditions and for such
periods as determined by BUYER. SELLER shall use reasonable
efforts to have Banc One agree, upon BUYER's request, to provide
a photocopy of the agreement(s) pursuant to which Banc One has
provided such coverage to a customer, it being understood,
however, that Banc One shall not be required to provide copies
of such agreements in bulk.
IN WITNESS WHEREOF, SELLER and BUYER have duly executed this
Assignment of
Agreements this ____ day _____________ of, 199_.
Community Trust Bancorp, Inc.
By: ___________________________________
its: __________________________________
The Peoples Banking and Trust Company
By: ___________________________________
Its: __________________________________
SCHEDULE N
FORM OF INSTRUMENT OF ASSUMPTION
--------------------------------
Pursuant to the provisions of Section 6.3(a) of the Office
Purchase and Assumption Agreement by and between Community Trust
Bancorp, Inc. ("SELLER") and The Peoples Banking and Trust
Company ("BUYER") dated December, __, 1997, (the "Agreement"
herein), BUYER hereby unconditionally agrees to assume, perform
and/or discharge, as applicable and as set forth below, the
following obligations and/or liabilities attributable to the
Offices of SELLER which obligations and liabilities are being
purchased or assumed by BUYER pursuant to the Agreement.
Capitalized terms used but not defined herein shall have the
meanings specified in the Agreement. BUYER shall:
(a) Assume, discharge, pay in full and perform all of SELLER's
obligations and duties relating to the Deposit Liabilities in
accordance with the provisions of Section 1.3(b) of the
Agreement.
(b) Assume, discharge, pay in full and perform all of SELLER's
obligations and duties relating to the Third Party Lease in
accordance with the provisions of Section 1.3(d) of the
Agreement.
(c) Assume, discharge, pay in full and perform all of SELLER's
obligations and duties relating to the Assumed Contracts in
accordance with the provisions of Sections 1.3(c) and (d) of the
Agreement.
(d) Assume and fully and timely perform and discharge, in
accordance with the provisions of Section 1.3(c) of the
Agreement, all lease and other obligations specified in Sections
1.3(c) and (d) of the Agreement.
(e) Assume and, in the normal course of business, faithfully
honor and fully and timely perform and discharge all the duties
and obligations of SELLER arising from and after the date hereof
(i) with respect to the safe deposit business of the Offices,
including, but not limited to, the maintenance of all necessary
facilities for the use of safe deposit boxes by the renters
thereof during the periods for which such persons have paid rent
therefor in advance to SELLER subject to the provisions of the
applicable leases or other agreements relating to such boxes,
and (ii) all safekeeping items and agreements delivered to BUYER
by SELLER or Banc One pursuant to the Agreement, an itemized
list of which items and agreements are annexed hereto as Exhibit
A including, but not limited to, all applicable safekeeping
agreements, memoranda or receipts so delivered to BUYER by
SELLER or Banc One.
(f) Fully and timely perform and discharge, in the normal course
of business, as the same may be or become due, all additional
liabilities and obligations of SELLER, if any, including,
without limitation, the deferred expenses described in Section
1.3(d) of the Agreement, and which expenses are identified by
name and the dollar amounts of which are set forth in Exhibit B,
annexed hereto, and obligations pertaining to the Office Loans,
the Assets, and the employees of the Offices as set forth in the
Agreement.
(g) Nothing contained in this Instrument of Assignment shall be
construed in any manner as broadening the scope of liabilities
assumed by BUYER pursuant to the Agreement or limiting BUYER's
rights to indemnification provided in Section 8.3 of the
Agreement.
Dated this ____ day of _______________, 199__
ATTEST:
By: _______________________
Its: ______________________
Community Trust Bancorp, Inc. hereby acknowledges receipt of the
executed original of the foregoing Instrument of Assumption
this ___ day of _____________, 199_.
Community Trust Bancorp, Inc.
By: ______________________________
Its:______________________________
SCHEDULE O
FORM OF ASSIGNMENT, TRANSFER AND APPOINTMENT OF
SUCCESSOR CUSTODIAN FOR INDIVIDUAL RETIREMENT ACCOUNTS
------------------------------------------------------
KNOW ALL MEN BY THESE PRESENTS THAT:
WHEREAS, Community Trust Bancorp, Inc. ("SELLER") and The
Peoples Banking and Trust Company ("BUYER") are parties to a
certain Office Purchase and Assumption Agreement dated as of
December, ____, 1997, (the "Agreement" herein), pursuant to
which SELLER has agreed to assign and BUYER has agreed to assume
the custodianship under certain of SELLER's Individual
Retirement Accounts ("IRAs") and BUYER has agreed to assume such
IRAs upon the terms and conditions contained in the Agreement;
NOW THEREFORE, SELLER does hereby sell, assign and transfer to
BUYER for valuable consideration paid by BUYER all of SELLER's
right, title and interest in:
1. All the IRAs as described in Appendix A attached hereto and
incorporated herein. Following the Closing Date, Appendix A
shall be amended by attachment of a listing of IRAs as of the
close of business on the Closing Date, which IRAs are booked at
or attributed to the "Offices" as that term is defined in the
Agreement.
2. All the records, files, correspondence and documentation
relating to the IRAs.
BUYER hereby represents that it has adopted or will adopt the
Master Individual Retirement Plan and Custodial Account ("Plan")
attached hereto as Appendix B and incorporated herein, and that
BUYER will assume the responsibilities as Successor Custodian,
and warrants to SELLER that it will adhere to all provisions
contained in the Plan as now written, and shall only amend such
applicable plan in accordance with its terms. Based upon the
representations and warranties made by BUYER, SELLER, in
accordance with and pursuant to section 8.10 of the Plan, hereby
appoints BUYER Successor Custodian and transfers and assigns
said IRAs to BUYER. SELLER hereby represents that all of the
IRAs described in Appendix A hereto are governed by the Plan
attached as Appendix B hereto.
Capitalized terms used but not defined herein shall have the
meanings specified in the Agreement.
IN WITNESS WHEREOF, SELLER and BUYER have caused this Assignment
to be signed by their proper officers, as of this day of
December _____, 1997.
Community Trust Bancorp, Inc.
Attest: By: ___________________________________
Its: __________________________________
Attest: The Peoples Banking and Trust Company
By: ___________________________________
Its: __________________________________
SCHEDULE P
FORM OF PRELIMINARY CLOSING STATEMENT
-------------------------------------
COMMUNITY TRUST BANCORP, INC.
AND
THE PEOPLES BANKING AND TRUST COMPANY
Dated: _________________________
This Preliminary Settlement Statement for the Office Purchase
and Assumption Agreement by and between Community Trust Bancorp,
Inc. ("SELLER"), and The Peoples Banking and Trust Company
("BUYER" herein) dated December ____, 1997, (the "Agreement")
relating to certain branch offices of BANK. Specific terms
herein shall have the same meaning as set forth in the Agreement.
CALCULATION OF CASH PAYMENT
---------------------------
Deposit liabilities at business day immediately Values As of Close of
preceding Closing Date. Business__________________
Core Deposits __________________________
ADD: Accrued interest payable __________________________
ADD: Deferred Expenses __________________________
LESS: Branch Cash On Hand __________________________
LESS: Fixed Assets __________________________
Owned Real Estate __________________________
Furniture Fixture & Equipment __________________________
LESS: Core Deposit Premium
____% x $____________ Core Deposits __________________________
LESS: Prepaid Expenses __________________________
LESS: Loans at business day immediately preceding
Closing Date
Deposit Account Loans __________________________
Overdraft Lines of Credit __________________________
Other Loans __________________________
Amount due Buyer __________________________
Community Trust Bancorp, Inc. The Peoples Banking and Trust Company
By: __________________________ By:___________________________
Its: _________________________ Its:__________________________
SCHEDULE Q
FORM OF FINAL SETTLEMENT STATEMENT
----------------------------------
COMMUNITY TRUST BANCORP, INC.
AND
THE PEOPLES BANKING AND TRUST COMPANY
Date: __________________
This Final Statement for the Office Purchase and Assumption
Agreement by and between Community Trust Bancorp, Inc.
("SELLER") and The Peoples Banking and Trust Company ("BUYER"
herein), dated December _____, 1997 (the "Agreement") relating
to certain branch offices of Banc One. Specific terms herein
shall have the same meaning as set forth in the Agreement.
CALCULATION OF CASH PAYMENT
---------------------------
Deposit liabilities at Closing Date. Values As of Close of
Business__________________
Core Deposits __________________________
ADD: Accrued interest payable __________________________
ADD: Deferred Expenses __________________________
LESS: Branch Cash On Hand __________________________
LESS: Fixed Assets __________________________
Owned Real Estate __________________________
Furniture Fixture & Equipment __________________________
LESS: Core Deposit Premium
____% x $____________ Core Deposits __________________________
LESS: Prepaid Expenses __________________________
LESS: Loans
Deposit Account Loans __________________________
Overdraft Lines of Credit __________________________
Other Loans __________________________
Equals: Required Cash Payment
- -----------------------------
Cash Payment Paid on Closing Date
Amount Required Cash Payment Exceeds Cash Paid
on Closing Date
Interest at Average Fed Funds Rate __________________________
Total to be Paid to BUYER by SELLER or
- --------------------------------------
Amount Cash Payment Paid on Closing Date Exceeds
- ------------------------------------------------
Required Cash Payment
- --------------------- ____________________________
Interest at Average Fed Funds Rate ____________________________
Total to be Paid to SELLER by BUYER ____________________________
Community Trust Bancorp, Inc. The Peoples Banking and Trust Company
By: __________________________ By:___________________________
Its: __________________________ Its:___________________________
SCHEDULE R
LISTING OF EMPLOYEES OF OFFICES
-------------------------------
THE LISTING OF EMPLOYEES OF THE OFFICES IS
SET FORTH IN CONFIDENTIAL ANNEX R
INCORPORATED HEREIN BY REFERENCE
Office Purchase and Assumption Agreement
with Community Trust Bancorp, Inc., Pikeville, KY
DATE 12/23/97
Schedule R Employees of Offices
SNL BRANCH EMPLOYEE NAME EMPLOYEE JOB TITLE
- ---- ---------------- ------------------------- -------------------------
1450 New Martinsville Mason, Melba F. Personal Banker
Frye, Connie D. Customer Service Unit Ldr
Byard, Ted R. Customer Service Rep
Hall, Erica L. Personal Banker
Tuttle, Eileen L. Customer Service Rep
James, Deborah A. Customer Service Rep
Knowlton, Donald S. Banking Center Mgr
Booher, Tina M. Administrative Asst
1451 Steelton Harrigan, Donna J. Lobby Services Spec
Evans, Minerva R. Banking Center Mgr
Merckle, Cynthia A. Lobby Services Spec
Howard, Deserae M. Customer Service Rep
Pixler, Julie A. Customer Service Rep
1456 Point Pleasant -
North Shell, Margaret Marie Customer Service Rep
1457 Point Pleasant -
Mini Branch Daugherty, Juanita A. Customer Service Rep
Craig, Linda Lois P. Customer Service Rep
Bryant, Debra L. Customer Service Rep
Kay, Wanda M. Customer Service Rep
Bowcott, Doris Marie Customer Service Unit Ldr
Birchfield, Sonia G. Customer Service Rep
Stapleton, Sharon D. Customer Service Rep
Weaver, Roxanne Customer Service Unit Ldr
1458 Point Pleasant -
Main Office Shamblin, Terry Lynn Personal Banker
Davis, Shelby J. Administrative Asst
Rollins, Krista Lynn Personal Banker
Musgrave, Lisa G. Customer Service Rep
Herdman, Jeannette D. Customer Svc Spec
Byus, Loril Telephone Operator II
Proffitt, Rachel E. Personal Banker
McWhorter, Judith Ann Branch Administrator
Baisden, Lisa A. Customer Service Rep
Gilley, Julie C. Customer Service Rep
Krebs, Geneth Geraldine Lobby Services Spec
Morgan, Stella C. Customer Service Rep
Bain, Karen S. Customer Service Unit Ldr
Siders, Holly J. Customer Service Rep
Brady, Sue Allison Banking Center Asst Mgr
Epling, Sandra K. Personal Banker
King, Paula R. Personal Banker
Wandling, Karen Michelle Personal Banker
Duncan, Geraldine Adron H. Personal Banker
Dewees, Janette Smith Lobby Services Spec
Holland, Joshua T. Courier
Nichols, Jennifer C. Customer Service Rep
Shaw, Virginia Retail Lender II
Bush, Joyce Laurane Customer Service Rep
SCHEDULE S
PUT PROVISION FOR OFFICE LOANS
------------------------------
Each and every of the terms and provisions, including
definitions, set forth in the Agreement to which this schedule
is attached and incorporated by reference are also incorporated
herein by reference.
In addition, for purposes of this schedule and the agreement:
"Business Day" shall mean a day on which SELLER is open for
business and which is not a Saturday, Sunday, or Federal Holiday.
"Book Value" unless otherwise expressly provided herein, shall
mean the dollar amount of any Office Loan on the books of SELLER
as of the Closing Date on an unconsolidated basis, after
adjustment by SELLER for any differences in amounts, suspense
items, unposted debits and credits, and other similar
adjustments and corrections. Book value shall be determined
exclusive of any reserves, and shall be reduced by any unearned
discount on addon interest for installment loans or installment
loans in process, all as reflected on the books of SELLER as of
the Closing Date, but shall not otherwise be adjusted for
unearned income.
"CutOff Date" shall mean, for any Office Loan put back to
SELLER pursuant to this Agreement, the date specified in BUYER'S
notice of its intent to put back such Office Loan which date
shall be not less than ten (10) Business Days prior to the
Option Exercise Date (as hereinafter defined) for such Office
Loan.
"Disqualifying Event" shall mean, with respect to any Office
Loan, any of the following actions taken by BUYER without the
written consent of SELLER with respect to such Office Loan:
(i) Any advance of funds or credit (including additional
indebtedness drawn as a part of a line of credit or credit or
created by means of an overdraft) to any borrower or any obligor
on such office Loan, and any commitment to advance any funds or
credit to any such borrower or other obligor (except as provided
in subsection (iv) of this definition); or
(ii) Any modification, extension, forgiveness, or other material
change in the terms or conditions of such Office Loan,
including, but not limited to, any change in the term, interest
rate, or method of computation of interest (other than interest
adjustments required under the terms of the Office Loan); or
(iii) Any release of collateral, in whole or in part (other than
a release of collateral made in connection with the substitution
of new collateral of equivalent value or a release of collateral
in connection with a reduction by cash payment in the
outstanding principle balance of an Office Loan, provided that
after such payment the balance of the Office Loan is fully
secured by a valid first lien), foreclosure, or other change in
the collateral position which SELLER held at the Closing Date
with respect to such Office Loan; or
(iv) Any sale, transfer, pledge, hypothecation, or assignment,
in whole or in part, of any right, title, or interest in or to
the Office Loans (including, without limitation, any interest
thereon or any collateral related thereto) to any third party
prior to the Option Exercise Date without the express prior
written consent on SELLER, provided, however, that the term
"Disqualifying Event" shall not include any Protective Advance
or any advance of funds or credit with respect to any Office
Loan as to which there is a commitment by SELLER to provide
additional funding to or on behalf of the Borrower if (a) any
such advance is made in accordance with prudent banking
standards and practices, (b) all such advances, in the
aggregate, do not exceed the original commitment with the
respect to the Office Loan in the case of any Office Loan, (c)
(together with any such additional advances) is fully secured by
a valid first lien, and (d) is made consistently with each and
every term and condition of the relevant Office Loan.
"Lien" shall mean, with respect to any Office Loan, any
mortgage, deed of trust, pledge, security interest,
hypothecation, assignment, deposit arrangement, charge,
encumbrance, lien (statutory or other), priority or other
security agreement or written preferential arrangement of any
kind or nature whatsoever with respect to such Office Loan
(including, without limitation, any conditional sale or other
title retention agreement, any financing lease having
substantially the same economic effect as any of the foregoing,
and the filing of any financing statement under the Uniform
Commercial Code or comparable law of any jurisdiction).
"Office Loan Settlement Date" shall mean the first Business Day
following the expiration of one hundred twenty (120) calender
days after the Banc One Closing Date, subject to extension at
the sole discretion of SELLER upon five (5) Business Days'
advance notice to the BUYER of such extension; provided,
however, that in no event will the Office Loan Settlement Date
be extended beyond one hundred eighty (180) calendar days after
the Banc One Closing Date.
"Option Exercise Date" shall mean the date which is 90 calendar
days following the Banc One Closing Date, exclusive of the Banc
One Closing Date and inclusive of the 90th calendar day.
"Protective Advance" shall mean any advance of funds or credit
with respect to any Office Loan which (a) is made in accordance
with prudent banking standards and practices, (b) is used to
remove a prior lien on the collateral, if any, securing such
office Loan including, without limitation, a Lien for taxes due
but not yet paid, or for the payment of premiums on insurance
obtained in respect of any such collateral, including without
limitation, title insurance, public liability insurance, and
fire insurance, and (c) does not exceed, together with all other
advances made by BUYER in respect of such Office Loan, the
greater of (i) ten percent (10%) of the outstanding principal
balance of such Office Loan as the Banc One Closing Date, and
(ii) ten percent (10%) of the value (based upon the most recent
existing appraisal report) of the collateral securing such
Office Loan less the amount of any indebtedness secured by a
prior Lien on such collateral.
"Repurchase Price" shall mean, with respect to the Office
Loans, the sum of (a) the purchase price at which such Office
Loan was transferred to Buyer pursuant to this Agreement, minus
(b) any monies received between the Banc One Closing Date and
the applicable Option Exercise Date, plus (c) the amount of any
increase in book value since Banc One Closing Date resulting
from any advances, restructuring or other modifications approved
in writing by SELLER or made in accordance with the terms of
this Agreement, plus (d) interest on such purchase price from
the Banc One Closing Date to the date of payment at the
Settlement Interest Rate calculated on a daily basis after
taking into account the adjustments contemplated by subsections
(b) and (c) herein. As used in this definition, the phrase "any
monies received" shall include, without limitation, all
principal payments, interest payments, fees, net proceeds
realized from sales of collateral, dividends, and any and all
other monies received in respect of the relevant Office Loan.
"Settlement Interest Rate" shall mean, for the calender
quarter in which the Banc One Closing Date occurs, the 90 day
U.S. Treasury Bill discount rate in effect of the Banc One
Closing Date (as established by the auction held on the date
closest preceding such date), and (ii) for each calender quarter
thereafter, the Treasury Bill Discount rate in effect as of the
first day of such quarter (as established by the auction held on
the date closest preceding such date).
Put Option for Office Loans
---------------------------
Office Loans. Subject to the terms and conditions hereinafter
set forth, the BUYER agrees to purchase form SELLER, and SELLER
hereby agrees to sell, assign, transfer, convey and deliver to
the BUYER, as of the earlier of the Option Exercise Date or such
date as Banc One may consent in writing to the transfer and
assignment of the Office Loans to BUYER, all right, title and
interest of SELLER in and to all of the Office Loans as of the
Closing Date, at the respective purchase prices provided in this
Agreement; provided, however, that BUYER shall have the right to
put back to SELLER, not later than the Option Exercise Date, any
Office Loan to be transferred to BUYER pursuant to this
Agreement in the event that, (i) as of the Closing Date, there
exists a breach of a representation or warranty of SELLER with
respect to such Office Loan, (ii) in the event that
documentation relating to the collateral for such Office Loan is
incorrect such that a security interest in favor of Banc One (or
SELLER as transferee) is not in the amount, or applicable to the
collateral, as described in the applicable documentation
relating to such Office Loan, or (iii) in the event that
documentation relating to collateral supporting such Office Loan
is incomplete or missing, thereby resulting in an invalid or
unenforceable security interest in favor of Banc One (or SELLER
as transferee) in the underlying collateral. SELLER shall make
available all files relating to the Office Loans to be
transferred to BUYER pursuant hereto when received from Banc One
for the purpose of BUYER's review and determination of Office
Loans with respect to which BUYER desires to exercise its put
rights. BUYER's right to put back any such Office Loan shall be
subject in all instances, in addition to the other conditions
precedent provided for herein, to material compliance by BUYER
with each and every of the terms and conditions set forth in
this Agreement and provided no Disqualifying Event has occurred
with respect to such Office Loan. Buyer shall acquire each
Office Loan to be transferred under this Agreement subject to
any and all arrangements, whether or not in writing, pursuant to
which any Person (other than SELLER or an affiliate of SELLER)
provides servicing for such Office Loan. SELLER hereby assigns,
transfers, conveys and delivers to the BUYER, and BUYER hereby
accepts, all right, title and interest of SELLER in and to any
such arrangement. SELLER and BUYER hereby agree to enter into a
service agreement mutually agreeable to BUYER and SELLER
pursuant to which BUYER shall service the Office Loans during
the period commencing on the Closing Date and terminating on the
date the Office Loans are assigned pursuant to this Agreement
(the "Service Period"). Such servicing agreement shall provide
that BUYER collect and retain all payments on the Office Loans
during the Service Period for disbursement in accordance with
the provisions of this Schedule S and this Agreement.
Purchase Price and Adjustments:
-------------------------------
(a) Cash Payment. The Office Loans shall transfer at an
initial transfer price of Book Value as of the Closing Date.
The Repurchase Price for any such Office Loan put back to SELLER
shall be based on the Book Value used in calculating the payment
for such Office Loan as of the Banc One Closing Date, adjusted
as otherwise provided in the definition of Repurchase Price. On
or before the Office Loan Settlement Date, SELLER shall pay the
BUYER, or the BUYER shall pay to SELLER, as the case may be, an
amount in cash equal to the Repurchase Price for the Office
Loans put back to SELLER, together with interest thereon at the
Settlement Interest Rate from the Banc One Closing Date to the
date of such payment.
Manner of Conveyance; No Warranty; Nonrecourse; Etc;
(a) "As Is,""Where Is." SELLER represents and warrants that, as
of the Closing Date, the Office Loans are not past due more than
30 days in accordance with their respective terms, not on
nonaccrual status on the books of SELLER as of the Closing Date,
and no Office Loan is classified as a grade 6 or 7 asset
(corresponding to asset classifications by the Office of the
Comptroller of the Currency as "Substandard" or "Doubtful",
respectively) on the books of SELLER. The conveyance of Office
Loans shall be on an "as is" "where is" basis, without recourse
and, except as otherwise specifically provided in the Agreement,
without any warranties whatsoever, express or implied,
including, without limitation, any warranties with respect to
title, enforceability, collectibility, documentation or freedom
from Liens or encumbrances (in whole or part). BUYER
acknowledges that SELLER will not release its security interests
or other Liens, if any, in such Office Loans until earlier or
the expiration of the Option Exercise Date or the waiver by
BUYER of its right to put back such Office Loans to SELLER. In
the event that BUYER, in good faith, disagrees with the grade
classification of any Office Loan on the books of SELLER as of
the Closing Date, BUYER shall notify SELLER in writing of such
disagreement and shall provide to SELLER detailed written
analysis and support for such disagreement not later than the
CutOff Date. Following receipt of such notice, SELLER and BUYER
shall select a mutually acceptable third party to analyze and
review any such Office Loans and to provide written findings and
recommendations as to the proposed classification of such Office
Loans, including analysis and support therefor, which findings
and recommendations shall be provided to SELLER not later than
midnight on the 30th calendar day following receipt by SELLER of
such notice. The cost and expense of any such third party
review shall be shared equally by BUYER and SELLER, and the
findings of such third party review as to the recommended grade
of such Office Loans shall be binding upon BUYER and BANK ONE
for purposes of this section.
(b) Additional Title Documents. SELLER shall prepare and
deliver documents of assignment relating to the Office Loans in
the form as set forth in Schedule M attached hereto and
incorporated herein by reference. BUYER shall prepare and
deliver to SELLER all such other and further instruments,
agreements, and documents of conveyance (in form and substance
satisfactory to SELLER) as shall be reasonably necessary to vest
in the BUYER the full legal or equitable title of SELLER in and
to the Office Loans; provided, however, that SELLER may, in its
discretion, elect to delay the execution and delivery of any
such instruments or documents of conveyance until the earlier of
the expiration of the Option Exercise Date or the waiver by
BUYER of its right to put back such assets to SELLER. BUYER
shall be solely responsible for recording any such instruments
and documents of conveyance, as well as any intervening
assignments, at its own expense.
Putback of Office Loans:
- ------------------------
(a) BUYER's right to put Office Loans back to SELLER in
accordance with this Agreement shall be exercised by the BUYER
giving written notice to SELLER as noted below not later than
the CutOff Date (for each individual Office Loan) and shall
terminate upon the expiration of the Option Exercise Date.
Commencing on the Closing Date (for each individual Office
Loan), and ending on the CutOff Date, BUYER shall notify SELLER
in writing of all Office Loans which BUYER intends to put back
to SELLER. Such notice shall specify the Office Loans being put
back and the basis for the putback, shall identify any
liabilities associated with such Office Loans which were assumed
by the BUYER under this Agreement, and shall state the
Repurchase Price of the Office Loans put back (specifying the
calculation thereof), all in form and substance satisfactory to
SELLER. BUYER shall prepare and deliver to SELLER all required
instruments of transfer and reconveyance of the Office Loans and
any collateral (in form and substance reasonably satisfactory to
SELLER) and the documents and instruments evidencing such Office
Loans and all Records relating thereto, and BUYER shall take
such other reasonable actions as shall be necessary to transfer
such Office Loans and any related liabilities and collateral
from BUYER to SELLER.
(b) BUYER's notice of its intent to put back any Office Loan
shall include a calculation of the Repurchase Price for each
such Office Loan. Such Repurchase Price shall be determined as
of the applicable CutOff Date for such Office Loan. BUYER shall
collect and hold any and all monies received in respect of such
Office Loan after the CutOff Date for the account of SELLER, and
shall remit such monies to SELLER not later that one (1)
business day following receipt thereof, together with interest
thereon from the date of receipt by BUYER to the date of payment
at the Settlement Interest Rate.
(c) On the Option Exercise Date, BUYER shall transfer such
Office Loans and any related liabilities to SELLER. SELLER
shall pay to the BUYER an amount equal to the Repurchase Price
for each such Office Loan less the book value (as of the
applicable CutOff Date) of any reassumed related liability not
later that the Office Loan Settlement Date.
(d) It shall be a condition to BUYER's right to put back any
Office Loans hereunder that (i) such Office Loans be free and
clear of any and all Liens created by, or securing any
indebtedness of, BUYER or any of its Affiliates, including,
without limitation, any indebtedness of BUYER for liabilities
assumed pursuant to this Agreement which are not put back to
SELLER, (ii) such Office Loans shall have been serviced in
accordance with prudent banking standards and practices and the
terms and conditions of such Office Loan until such Office Loans
are repurchased by SELLER, (iii) no Disqualifying Event shall
have occurred with respect to such Office Loans, (iv) SELLER has
received written notice from Banc One that SELLER may put such
Office Loans to Banc One and Banc One agrees to accept such put,
and (v) Buyer shall have complied with each and every other
term, condition, duty, and obligation imposed on BUYER under
this Agreement. SELLER, in its sole discretion, may elect to
waive any conditions set forth in this subsection.
(e) Buyer shall indemnify and shall hold harmless SELLER and its
subsidiaries and affiliates and its and their respective
officers, directors, employees, agents, and contractors, from
and against any and all liability, loss, cost, and expense,
including attorney fees, arising directly or indirectly in
conjunction with any claims, demands, judgements, or defenses
which may be asserted by any borrower or other party as a result
of management of the Office Loans which are put back to SELLER
in conjunction with this Agreement by BUYER or its affiliates or
its or the respective officers, employee, contractors, or
agents, including but not limited to actions or inactions in
relation thereto occurring between the Closing Date and the date
on which SELLER reasserts management and control over the
relevant Office Loan.
(f) BUYER acknowledges and agrees that the Office Loans which
are to be put back to SELLER may not be sold, transferred,
pledged, hypothecated, or assigned, in whole or in part, to any
third party prior to the Option Exercise Date without the
express prior written consent of SELLER.
Community Trust Bancorp, Inc.
208 North Mayo Trail
Pikeville, Kentucky 41502
January 20, 1998
Robert E. Evans
The Peoples Banking and Trust Company
138 Putnam Street
Marietta, Ohio 45750
Dear Mr. Evans:
This letter agreement (the "Letter Agreement") is being entered
into as of the date, and immediately following the execution and
delivery of, that certain Office Purchase and Assumption
Agreement dated January 20, 1998 (the "P&A Agreement"), by and
between The Peoples Banking and Trust Company ("Buyer") and
Community Trust Bancorp, Inc., and its designee ("Seller").
Capitalized terms not otherwise defined herein and defined int
he P&A Agreement shall have the meanings given them in the P&A
Agreement.
For good and valuable consideration, the receipt and adequacy
of which is acknowledged by the parties hereto, the parties
hereby agree that, in addition to the consideration to be paid
by Buyer to Seller pursuant to the P&A Agreement, Buyer shall,
at the Closing, pay to Seller, in immediately available funds,
an amount equal to one percent (1.0%) of the Core Deposits used
to determine Acquisition Consideration pursuant to Section
1.4(a)(4) of the P&A Agreement.
In witness whereof, the parties hereto acknowledge that this is
a binding and enforceable agreement and have executed this
Letter Agreement by their duly authorized officer as of the date
and year fist above written.
Community Trust Bancorp, Inc.
By: /s/ BURLIN COLEMAN
Burlin Coleman, Chairman and
Chief Executive Officer
Read and Agreed to:
The Peoples Banking and Trust Company
By: /s/ ROBERT E. EVANS
Robert E. Evans, Chairman and
Chief Executive Officer
LETTER AGREEMENT
This Letter Agreement (the "Agreement") is entered into and
effective as of the 4th day of June, 1998, by and between
The Peoples Banking and Trust Company, an Ohio banking
corporation ("Peoples"), and Community Trust Bancorp, Inc.
("Community Trust"), a Kentucky corporation.
Recitals:
--------
A.Bank One West Virginia, National Association, Bank One
Wheeling-Steubenville, National Association (collectively "Bank
One") and Community Trust entered into that certain Office
Purchase and Assumption Agreement dated December 30, 1997 and
that certain Letter Agreement dated December 30, 1997 pursuant
to which Community Trust agreed to purchase, through one or more
wholly-owned subsidiary depository institutions, certain assets
and liabilities owned and operated by Bank One.
B.Community Trust and Peoples entered into that certain Office
Purchase and Assumption Agreement dated January 20, 1998 ("P&A
Agreement") and that certain Letter Agreement dated January 20,
1998 ("Letter Agreement") pursuant to which Community Trust,
through one or more wholly-owned subsidiary depository
institutions, agreed to sell, and Peoples agreed to purchase, the
assets and liabilities of the Bank One branches located in Point
Pleasant and New Martinsville, West Virginia.
C.Peoples and Community Trust now desire to enter into this
Agreement to modify and amend the terms and conditions of the P&A
Agreement and Letter Agreement as provided for herein.
Capitalized terms not otherwise defined herein and defined in the
P&A Agreement shall have the meanings given them in the P&A
Agreement.
Agreement:
---------
Now, Therefore, the parties hereby agree as follows:
1. Definitions.
---------------
1.1 Bank One Agreement. The term "Bank One Agreement" shall
mean that certain agreement between Community Trust and Bank One
dated June 4, 1998.
1.2 Closing Acquisition Consideration. The term "Closing
Acquisition Consideration" shall mean the Deposit Premium
multiplied by the Discounted Closing Deposit Balance.
1.3 Closing Deposit Balance. The term "Closing Deposit
Balance" shall mean the average Core Deposits (including interest
posted thereto) for the Point Pleasant Branches for the five (5)
business day period immediately preceding the Closing Date.
1.4 Deposit Premium. The term "Deposit Premium" shall mean
nine and seven tenths percent (9.7%).
1.5 Discounted Closing Deposit Balance. The term
"Discounted Closing Deposit Balance" shall mean eighty percent
(80%) multiplied by the Closing Deposit Balance.
1.6 Main Branch. The term "Main Branch" shall mean the
Point Pleasant Main Branch, Point Pleasant, West Virginia (Bank
One branch #1458).
1.7 Mini Branch. The term "Mini Branch" shall mean the
Point Pleasant Mini Branch, Point Pleasant, West Virginia (Bank
One branch # 1457).
1.8 Mini Branch Closing Date. The term "Mini Branch Closing
Date" shall mean May 15, 1998.
1.9 Peoples. The term "Peoples" shall mean The Peoples
Banking and Trust Company, an Ohio banking corporation, Marietta,
Ohio.
1.10 Point Pleasant Branches. The term "Point Pleasant
Branches" shall mean the Main Branch, the Mini Branch and the
Point Pleasant North Branch (Bank One branch #1456) located in
Point Pleasant, West Virginia and shall, after the Mini Branch
Closing Date include the deposits of the Mini Branch consolidated
with and into the Point Pleasant Main Branch pursuant to Section
2.2 of this Agreement.
1.11 Post-Closing Adjustment Date. The term "Post-Closing
Adjustment Date" shall mean the date ninety (90) days after the
Mini-Branch Closing Date.
1.12 Post-Closing Deposit Balance. The term "Post-Closing
Deposit Balance" shall mean the average Core Deposits (including
interest posted thereto) for the Point Pleasant Branches for the
five (5) business day period immediately preceding the Post-
Closing Adjustment Date.
2. Actions Regarding Mini Branch.
---------------------------------
2.1 Closing Mini Branch. Anything to the contrary herein
notwithstanding, the ATM presently located at the Mini Branch
shall remain open and operated by Community Trust, or its
predecessor in interest, at its sole option until the earlier of
(i) the installation and operation of the ATM at the Main Branch,
or (ii) the Closing.
2.2 Mini Branch Employees. All employees of the Mini Branch
as of the Mini Branch Closing Date became employees of the Main
Branch or the Point Pleasant North Branch.
2.3 ATM Relocation.
(a) Notwithstanding anything contained in the P&A
Agreement to the contrary, Peoples shall not purchase and is
under no obligation to purchase or pay for the ATM currently
located in the Mini Branch and Community Trust is under no
obligation to transfer and convey such ATM.
(b) Community Trust, and Bank One in accordance with the
Bank One Agreement, shall, subject to any and all necessary
consents, approvals, permits or licenses, fully cooperate with
Peoples in the selection of a new site at the Main Branch for the
location of either a walk-up ATM or a drive-through ATM.
(c) Community Trust shall pay to Peoples $10,000 for the
ATM at the Mini Branch not being transferred by Community Trust
to Peoples pursuant to the P&A Agreement. Peoples shall purchase
the ATM to be located at the Main Branch. Bank One, pursuant to
the Bank One Agreement, shall install the ATM to be located at
the Main Branch and, except as otherwise provided for herein or
in the Bank One Agreement, be solely responsible for all costs
associated with such installation. Peoples shall own the ATM
installed at the Main Branch. Peoples shall coordinate the
purchase of the ATM at the Main Branch with Community Trust to
ensure that such ATM is compatible with existing Bank One systems
and shall be responsible for the cost of a kiosk in the event
that Peoples elects to erect a drive-through ATM. Community
Trust or Bank One, in accordance with the Bank One Agreement,
shall retain custody and ownership of the ATM located in the
lobby of the Mini Branch.
3. Purchase Price Calculations for Point Pleasant Branches.
-----------------------------------------------------------
3.1 Exclusivity of Determination. Notwithstanding anything
contained in the P&A Agreement or the Letter Agreement to the
contrary, the Acquisition Consideration for the Core Deposits of
the Point Pleasant Branches shall be determined solely in
accordance with the provisions of this Agreement.
3.2 Closing Date Determinations. On the Closing Date,
Peoples shall pay Community Trust the Closing Acquisition
Consideration for the Point Pleasant Branches.
3.3 Post-Closing Adjustment. Not more that three (3)
business days after the Post-Closing Adjustment Date, Peoples
shall deliver to Community Trust a summary of the Deposit
Liabilities for the Point Pleasant Branches as of the Post-
Closing Adjustment Date and:
(a) in the event that the Post-Closing Deposit Balance
is more than ninety percent (90%) of the Closing Deposit Balance
then Peoples shall pay to Community Trust an amount equal to the
Deposit Premium multiplied by the difference between (i) ninety
percent (90%) of the Closing Deposit Balance, and (ii) the
Discounted Closing Deposit Balance; or
(b) in the event that the Post-Closing Deposit Balance
is less than or equal to ninety percent (90%) of the Closing
Deposit Balance then no adjustment to the Acquisition
Consideration shall be made pursuant to this Agreement and no
additional payment shall be made by Peoples to Community Trust.
3.4 Additional Consideration.
(a) Community Trust and Peoples hereby acknowledge that
the additional consideration to be paid by Peoples to Community
Trust pursuant to the Letter Agreement shall be equal to one
percent (1%) of the Core Deposits on which the Closing
Acquisition Consideration is based pursuant to Section 3.2 of
this Agreement.
(b) Not more than three (3) business days after the Post-
Closing Adjustment Date, Peoples shall deliver to Community Trust
a summary of the Deposit Liabilities for the Point Pleasant
Branches as of the Post-Closing Adjustment Date and:
(1) in the event that the Post-Closing Deposit Balance
is more than ninety percent (90%) of the Closing Deposit
Balance Peoples shall pay to Community Trust an amount equal
to one percent (1%) multiplied by the difference between (1)
ninety percent (90%) of the Closing Deposit Balance, and (2)
the Discounted Closing Deposit Balance; or
(2) in the event that the Post-Closing Deposit Balance
is less than or equal to ninety percent (90%) of the Closing
Deposit Balance then no adjustment to the additional
consideration paid by Peoples pursuant to this Section 3.4 and
the Letter Agreement shall be made.
4. Cooperative Efforts Regarding Deposit Retention. From the
date of this Letter Agreement until and including the Post-
Closing Adjustment Date, Community Trust, and Bank One in
accordance with the Bank One Agreement, agree to cooperate in
good faith with Peoples regarding notifications to employees and
customers of the Point Pleasant Branches and community leaders
regarding the closing of the Mini Branch, the relocation of the
ATM and any other improvements to the Point Pleasant Main Branch.
Bank One, in accordance with the Bank One Agreement, shall be
solely responsible for all costs associated with employee and
customer notifications required in connection with the closing of
the Mini Branch.
5. Acknowledgment Regarding P&A Agreement. Notwithstanding
anything contained in the P&A Agreement, Community Trust and
Peoples hereby acknowledge that the Deposit Liabilities
associated with Mini Branch will be (i) consolidated into the
Main Branch in accordance with Section 2.2 of the Bank One
Agreement, and (ii) transferred to Peoples on the Closing Date in
accordance with Section 3 of this Agreement, subject to the terms
of the P&A Agreement and Letter Agreement not amended hereby.
6. Covenants. Peoples hereby covenants and agrees that after
the Closing Date and through the Post-Closing Adjustment Date
Peoples, except as may be otherwise required by a regulatory
authority having jurisdiction over Peoples, without the prior
written consent of Community Trust, which consent shall not be
unreasonably withheld, shall not:
(a) cause any Point Pleasant Branch to engage in any
material transaction or incur or sustain any obligation which, in
the aggregate, is material to such branch's business, condition
(financial or otherwise), or operations except in the ordinary
course of business (provided, however, that an ATM may be
installed as contemplated by Section 2.4);
(b) cause any Point Pleasant Branch to transfer to
Peoples' other operations any Deposit Liabilities except in the
ordinary course of business at the unsolicited request of
depositors or cause any of Peoples' other operations to transfer
to any Point Pleasant Branch any Deposits Liabilities, except in
the ordinary course of business at the unsolicited request of
depositors; provided, however, that Peoples shall be permitted to
make such transfers of any deposits to or from any Point Pleasant
Branch as are in the normal course of business and do not violate
the foregoing restrictions; and
(c) make any material change to Peoples' policies for
setting rates on deposits offered at any offices in the market
area of the Point Pleasant Branches except such changes made in
response to competitive market pressures or are otherwise agreed
upon by Community Trust and Peoples.
7. Continuing Obligations. Except as set forth in this
Agreement (i) nothing contained in this Agreement shall be deemed
to constitute a release of Peoples from the duties and
obligations of Peoples set forth in the P&A Agreement and the
Letter Agreement, (ii) nothing contained in this Agreement and
the Letter Agreement shall be deemed to constitute a release of
Community Trust from the duties and obligations of Community
Trust set forth in the P&A Agreement and the Letter Agreement,
and (iii) the P&A Agreement and the Letter Agreement shall remain
in full force and effect by and between Community Trust and
Peoples.
In Witness Whereof, the parties have entered into this
Agreement as of the date first written above.
Community Trust Bancorp, Inc.
By: /s/ JEAN R. HALE
Jean R. Hale
Title: Executive Vice President
("Community Trust")
The Peoples Banking and Trust Company
By: /s/ ROBERT E. EVANS
Robert E. Evans
Title: President & CEO
("Peoples")
EXHIBIT 11
- ----------
PEOPLES BANCORP INC. AND SUBSIDIARIES
COMPUTATION OF EARNINGS PER SHARE
- -------------------------------------
(dollars in thousands, except share data)
For the Three For the Six
Months Ended Months Ended
June 30, June 30,
1998 1997 1998 1997
BASIC EARNINGS PER SHARE
========================
EARNINGS:
Net income $2,800 $2,125 $5,176 $4,127
AVERAGE SHARES OUTSTANDING:
Weighted average Common
Shares outstanding 5,754,541 5,174,951 5,750,750 5,171,895
- ------------------------------------------------------------------------------
BASIC EARNINGS PER SHARE $0.49 $0.41 $0.90 $0.80
==============================================================================
DILUTED EARNINGS PER SHARE
==========================
EARNINGS:
Net income $2,800 $2,125 $5,176 $4,127
AVERAGE SHARES OUTSTANDING:
Weighted average Common
Shares outstanding 5,754,541 5,174,951 5,750,750 5,171,895
Net effect of the assumed
exercise of stock options
based on the treasury
stock method 202,733 154,881 196,609 139,322
- ------------------------------------------------------------------------------
Total 5,957,274 5,329,832 5,947,359 5,311,217
- ------------------------------------------------------------------------------
DILUTED EARNINGS PER SHARE $0.47 $0.40 $0.87 $0.78
==============================================================================
* Adjusted for 3-for-2 stock split issued April 30, 1998, to
shareholders of record as of April 13, 1998.
<TABLE> <S> <C>
<ARTICLE> 9
<LEGEND>
This schedule contains summary financial information extracted from the Form
10-Q filed as of June 30, 1998.
</LEGEND>
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 6-MOS
<FISCAL-YEAR-END> DEC-31-1998
<PERIOD-START> JAN-01-1998
<PERIOD-END> JUN-30-1998
<CASH> 28,621
<INT-BEARING-DEPOSITS> 3,382
<FED-FUNDS-SOLD> 52,750
<TRADING-ASSETS> 0
<INVESTMENTS-HELD-FOR-SALE> 208,962
<INVESTMENTS-CARRYING> 0
<INVESTMENTS-MARKET> 0
<LOANS> 533,264
<ALLOWANCE> 9,171
<TOTAL-ASSETS> 866,344
<DEPOSITS> 615,831
<SHORT-TERM> 31,370
<LIABILITIES-OTHER> 7,712
<LONG-TERM> 44,121
0
0
<COMMON> 50,578
<OTHER-SE> 31,411
<TOTAL-LIABILITIES-AND-EQUITY> 866,344
<INTEREST-LOAN> 24,154
<INTEREST-INVEST> 5,611
<INTEREST-OTHER> 1,334
<INTEREST-TOTAL> 31,099
<INTEREST-DEPOSIT> 12,301
<INTEREST-EXPENSE> 14,851
<INTEREST-INCOME-NET> 16,248
<LOAN-LOSSES> 1,242
<SECURITIES-GAINS> 431
<EXPENSE-OTHER> 10,858
<INCOME-PRETAX> 7,787
<INCOME-PRE-EXTRAORDINARY> 5,176
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 5,176
<EPS-PRIMARY> 0.90
<EPS-DILUTED> 0.87
<YIELD-ACTUAL> 4.58
<LOANS-NON> 1,013
<LOANS-PAST> 478
<LOANS-TROUBLED> 0
<LOANS-PROBLEM> 0
<ALLOWANCE-OPEN> 8,356
<CHARGE-OFFS> 706
<RECOVERIES> 279
<ALLOWANCE-CLOSE> 9,171
<ALLOWANCE-DOMESTIC> 9,171
<ALLOWANCE-FOREIGN> 0
<ALLOWANCE-UNALLOCATED> 1,936
</TABLE>
