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EXHIBIT 2(b)(2)
Amendment No. 1 to Branch
Purchase and Assumption Agreement
between KeyBank National Association
and The Park National Bank,
dated as of September 24, 1997
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Exhibit 2(b)(2)
AMENDMENT NO. 1
BRANCH PURCHASE AND ASSUMPTION AGREEMENT
This Amendment No. 1 (this "Amendment") dated as of September 24, 1997,
is entered into by and between KeyBank National Association, a national banking
association (the "Seller") and The Park National Bank, a national banking
association (the "Purchaser").
SECTION 1. BRANCH PURCHASE AND ASSUMPTION AGREEMENT
Reference is made to the Branch Purchase and Assumption Agreement dated
as of May 23, 1997 (the "Agreement") regarding Purchaser's purchase of certain
assets and assumption of certain liabilities of three (3) branches from Seller.
Unless otherwise changed in this Amendment, terms used herein, which are defined
in the Agreement, are used herein with the meanings therein described to them.
The Agreement as amended by this Amendment is and shall continue to be in full
force and effect and shall not be affected by this Amendment except and only to
the extent specified herein.
The Agreement provided that the Closing of the transaction would be
effective at 11:59 p.m. on Friday, September 12, 1997 or Friday, December 5,
1997. The purpose of this Amendment is to modify the Agreement to reflect that
the transaction will close on Friday, December 5, 1997, but will have an
Effective Time (as that term is defined herein) as of 12:01 a.m. Monday,
December 8, 1997. This Amendment also removes the requirement that Purchaser
obtain new telephone numbers for the Branches in Purchaser's name.
SECTION 2. AMENDMENTS TO THE AGREEMENT
2.1. Amendments to Article I; The Transaction. Article I of the
Agreement shall be and hereby is amended as follows:
2.1.1. Section 1.01 is amended, such that the reference to the
term "Closing" is deleted and in place thereof is inserted the term
"Effective Time".
2.1.2. Section 1.02(a)(iv) is amended, such that each
reference to the term "Closing" is deleted and in place thereof, in
each instance, is inserted the term "Effective Time".
2.1.3. Section 1.02(a)(v) is amended, such that the reference
to the term "Closing Date" is deleted and in place thereof is inserted
the term "Effective Time".
2.1.4. Section 1.02(a)(vi) is amended, such that the reference
to the term "Closing" is deleted and in place thereof is inserted the
term "Effective Time".
2.1.5. Section 1.02(b) is amended, such that the reference to
the term "Closing" is deleted and in place thereof is inserted the term
"Effective Time".
2.1.6. Section 1.02(b)(i) is amended, such that the reference
to the term "Closing" is deleted and in place thereof is inserted the
term "Effective Time".
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2.1.7. Section 1.02(b)(ii) is amended, such that the reference
to the term "Closing Date" is deleted and in place thereof is inserted
the term "Effective Time".
2.1.8. Section 1.03(a) is amended and restated as follows:
(a) PRELIMINARY CLOSING STATEMENT. Not less than five (5) days
prior to the Closing Date, Seller shall deliver to Purchaser a
proposed preliminary closing statement, in the form of
Schedule B to this Agreement, completed as at a date mutually
agreed to by the parties. The parties shall agree upon the
preliminary closing statement before the Closing, and it shall
be the basis of a preliminary payment to be made to
Purchaser's account on the Closing Date, or to Seller's
account at the Closing, as the case may be (the "Preliminary
Payment").
2.1.8. Section 1.03(b) is amended and restated as follows:
(b) PRELIMINARY PAYMENT. Subject to the terms and conditions
hereof, by no later than 12:00 p.m. on the Closing Date,
Seller shall wire transfer to Purchaser immediately available
funds equal to: (i) the sum of (A) the amount of the Assumed
Deposits (including accrued and unpaid interest thereon)
reflected on the preliminary closing statement; (B) the amount
of all accrued and unpaid expenses reflected as a liability on
the preliminary closing statement; and (C) the aggregate of
all prepaid safe deposit rental payments prorated to the
Effective Time; less (ii) an amount equal to the sum of: (A)
12.07% of the Assumed Deposits based upon an estimated 30-day
average prior September 12, 1997; (B) the amount of cash on
hand at the Branches as reflected on the preliminary closing
statement; (C) the sum of $125,000, representing the Agreed
Value of all furniture, fixtures, and equipment constituting
part of the Assets; (D) the Agreed Value of the Owned Real
Estate and the Leased Real Estate; (E) the amount of all
prepaid expenses of Seller as reflected as an asset on the
preliminary closing statement; (F) the Net Book Value of all
Loans, plus accrued and unpaid interest thereon as reflected
on the preliminary closing statement; and (G) the amount of
estimated sales taxes, if any, to be paid by Purchaser in
connection with the transaction contemplated hereby.
2.1.9. Section 1.04 is amended, such that the reference to the
phrase to "at Closing" in the last sentence of this Section 1.04 is
deleted and in place thereof is inserted the phrase "on the Closing
Date or at the Closing, as the case may be".
2.1.10. Section 1.08(c) is amended, such that each reference
to the term "Closing" is deleted and in place thereof, in each
instance, is inserted the term "Closing Date"; and Section 1.08(c) is
further amended, such that the reference to the term "Closing Date" is
deleted and in place thereof is inserted the term "Effective Time".
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2.1.11. Section 1.09 is amended, such that the reference to
the term "Closing" is deleted and in place thereof is inserted the term
"Effective Time".
2.2. Amendments to Article II; Obligations of the Parties Prior to the
Closing Date. Article II of the Agreement shall be and hereby is amended as
follows:
2.2.1. Section 2.01(d) is amended and restated in its entirety
as follows:
(d) INSURANCE. Seller will maintain in effect until the
Effective Time all casualty and public liability policies
relating to the Branches and maintained by Seller on the date
hereof or procure comparable replacement policies and maintain
such replacement policies in effect until the Effective Time.
2.2.2. Section 2.02 is amended, such that the reference to the
term "Closing Date" is deleted and in place thereof is
inserted the term "Closing".
2.3. Amendments to Article III; Representations and Warranties. Article
III of the Agreement shall be and hereby is amended as follows:
2.3.1. Section 3.03 is amended, such that each reference to
the term "Closing" is deleted and in place thereof, in each instance,
is inserted the term "Closing Date".
2.4. Amendments to Article IV; Employee Benefits. Article IV of the
Agreement shall be and hereby is amended as follows:
2.4.1. Section 4.02(c) is amended, such that each reference to
the term "Closing Date" is deleted and in place thereof, in each
instance, is inserted the term "Effective Time".
2.4.2. The second sentence of Section 4.02(e) is amended and
restated in its entirety as follows:
Effective as of the Closing Date, Purchaser shall assume
liability for all severance benefits payable to any Branch
Employee who is terminated by Purchaser on or after the
Closing Date.
2.4.3. Section 4.04 is amended, such that the initial phrase
"On and after the Closing Date" is deleted and in place thereof is
inserted the phrase "Effective upon the Closing Date".
2.5 Amendments to Article VI; Conditions Precedent to Closing. Article
VI of the Agreement shall be and hereby is amended as follows:
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2.5.1. Section 6.01(b) is amended, such that the first and
third references to the term "Closing Date" are deleted and in place
thereof, in each instance, is inserted the term "Closing".
2.5.2. Section 6.01(c) is amended, such that the first and
third references to the term "Closing Date" are deleted and in place
thereof, in each instance, is inserted the term "Closing".
2.5.3. Section 6.03 is amended, such that each reference to
the term "Closing Date" in the first sentence of this Section 6.03 is
deleted and in place thereof, in each instance, is inserted the term
"Closing"; and Section 6.03 is further amended, such that the first
reference to the term "Closing Date" in the second sentence of this
Section 6.03 is deleted and in place thereof is inserted the term
"Closing".
2.6. Amendments to Article VII; Closing. Article VII of the Agreement
shall be and hereby is amended as follows:
2.6.1. Section 7.01 is amended and restated in its entirety to
read as follows:
7.01 CLOSING, CLOSING DATE AND EFFECTIVE TIME. The Transaction
contemplated hereby shall occur at a closing (the "Closing")
to be held in the offices of Seller, located at 127 Public
Square, Cleveland, Ohio 44114, or via courier or facsimile
transmission as Seller may designate, on Friday, December 5,
1997, or such other date as Seller in its discretion may
designate, which date shall be reasonably acceptable to
Purchaser. The "Closing Date" shall be Monday, December 8,
1997. The "Effective Time" of this Agreement for purposes of
making calculations and for other purposes specifically
referred to in this Agreement shall be as of 12:01 a.m. on
Monday, December 8, 1997. In addition, the Closing shall be
deemed to have been consummated and final as of the Effective
Time. All actions taken and documents delivered at the Closing
will be deemed to have been taken and executed simultaneously,
and no action will be deemed taken nor any document deemed
delivered until all have been taken and delivered. Both
parties acknowledge that time is of the essence with respect
to consummating the transactions contemplated hereby.
2.6.2. Section 7.03 is added to Article VII as follows:
7.03 RECORDED INSTRUMENTS. If any instrument of transfer
contemplated herein shall be filed or recorded in any public
record before the Closing Date and thereafter the transaction
is not consummated, then at the request of Seller, Purchaser
will deliver (or execute and deliver) such instruments and
take such other action as Seller shall reasonably request to
revoke such purported transfer and to record any additional
transfers as are necessary to record property in the name of
the Seller.
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2.7. Amendments to Article IX; General Covenants. Article IX of the
Agreement shall be and hereby is amended as follows:
2.7.1. Section 9.03 is amended, such that the first reference
to the phrase "at the Closing" is deleted and in place thereof is
inserted the phrase "on the Closing Date or at the Closing, as the case
may be"; and Section 9.03 is further amended, such that the second
reference to the term "Closing" is deleted and in place thereof is
inserted the phrase "Closing Date or the Closing, respectively,".
2.7.2. Section 9.06 is amended, such that the reference to the
term "Closing Date" is deleted and in place thereof is inserted the
term "Effective Time".
2.8. Amendments to Article XI; Termination. Article XI of the Agreement
shall be and hereby is amended as follows:
2.8.1. Section 11.01(a) is amended, such that the phrase "the
earlier of" is deleted.
2.8.2. Section 11.01(d) is amended, such that the reference to
the term "Closing" is deleted and in place thereof is inserted the term
"Closing Date".
2.8.3. Section 11.01(e) is amended, such that the reference to
the term "Closing" is deleted and in place thereof is inserted the term
"Closing Date".
2.9. Amendments to Schedule E. Schedule E to the Agreement shall be and
hereby is amended as follows:
2.9.1. The paragraph entitled "Delivery of Documentation" set
forth under the Section "Seller's Actions at the Closing" is amended
and restated as follows:
DELIVERY OF DOCUMENTATION. Execute, acknowledge, and/or
deliver to Purchaser, dated as of the Closing Date, the
certificates of Seller contemplated by Section 6.01, the Bill
of Sale and Receipt in the form of Attachment 2, Limited
Warranty Deed in the form of Attachment 3 for the Owned Real
Estate upon which each Branch is situated dated as of the
Closing and effective upon recording, the Assignment and
Assumption of Lease in the form of Attachment 4 for the Leased
Real Estate upon which each Branch is situated, all other
documents required to be delivered to Purchaser by Seller at
the Closing pursuant to the terms of this Agreement, and any
other documents which Purchaser has identified to Seller at a
reasonable time prior to the Closing that are necessary or
reasonably advisable to consummate the transaction
contemplated by the Agreement.
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2.9.2. The paragraph entitled "Delivery of Funds" set forth
under the Section "Seller's Actions at the Closing" is amended and
restated as follows:
DELIVERY OF FUNDS. Deliver to Purchaser any funds required to
be paid by Seller to Purchaser no later than 12:00 p.m. on the
Closing Date pursuant to the terms of this Agreement.
2.9.3. Attachment 1: Instrument of Assumption, paragraph (b)
is amended, such that the reference to the term "Closing Date" is
deleted and in place thereof is inserted the term "Effective Time".
2.10. Amendments to Schedule F; Transitional Matters. Schedule F to the
Agreement shall be and hereby is amended as follows:
2.10.1. Schedule F, paragraph (a) under the heading
"Transitional Actions by Purchaser" is amended, such that the first
sentence is restated as follows: "From and after the Effective Time,
Purchaser shall: (i) . . ."
2.10.2. Schedule F, paragraph (b) under the heading
"Transitional Actions by Purchaser" is amended such that the reference
to the term "Closing Date" in the first sentence is deleted and in
place thereof is inserted the term "Effective Time".
2.10.3. Schedule F, paragraph (c) under the heading
"Transitional Actions by Purchaser" is amended, such that the second
reference to the term "Closing Date" is deleted and in place thereof is
inserted the term "Effective Time".
2.10.4. Schedule F, paragraph (d) under the heading
"Transitional Actions by Purchaser" is amended, such that each
reference to the term "Closing Date" is deleted and in place thereof,
in each instance, is inserted the term "Effective Time".
2.10.5. Schedule F, paragraph (e) under the heading
"Transitional Actions by Purchaser" is amended, such that each
reference to the term "Closing Date" is deleted and in place thereof,
in each instance, is inserted the term "Effective Time".
2.10.6. Schedule F, paragraph (g) under the heading
"Transitional Actions by Purchaser" is amended, such that the reference
to the term "Closing Date" is deleted and in place thereof is inserted
the term "Effective Time".
2.10.7. Schedule F, paragraph (h) under the heading
"Transitional Actions by Purchaser" is deleted.
2.10.8. Schedule F, paragraph (i) under the heading
"Transitional Actions by Purchaser" is amended, such that the second
sentence is restated as follows: "Purchaser shall notify affected
customers to destroy the old ATM/Debit cards and shall notify customers
of standard withdrawal limits beginning on the date of the Closing."
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2.10.9. Schedule F, the second paragraph of paragraph (a)
under the heading "Transitional Actions by Seller" is amended, such
that the phrase "As early as practicable after the Closing Date" is
deleted and in place thereof is inserted the phrase "No later than the
Closing Date".
2.10.10. Schedule F, paragraph (f) under the heading
"Transitional Actions by Seller" is amended, such that the reference to
the term "Closing Date" is deleted and in place thereof is inserted the
term "Effective Time".
2.10.11. Schedule F, paragraph (g) under the heading
"Transitional Actions by Seller" is amended such that the phrase "on
the Closing Date" is deleted and in place thereof is inserted the
phrase "on the date of the Closing".
2.10.12. Schedule F under the heading "Transitional Actions by
Seller" is amended, such that a new paragraph (h) is inserted to read
as follows:
(h) OPERATION OF THE BRANCHES. During the weekend immediately
preceding the Closing Date, Seller shall not open the Branches
for the conduct of business.
2.10.13. Schedule F, paragraph (b) under the heading
"Transitional Action by Both Parties" is amended, such that the
reference to the term "Closing Date" in the first sentence is deleted
and in place thereof is inserted the term "Effective Time".
2.10.14. Schedule F, paragraph (e) under the heading
"Transitional Action by Both Parties" is amended, such that each
reference to the term "Closing Date" in the last sentence is deleted
and in place thereof, in each instance, is inserted the term "Effective
Time".
2.10.15. Schedule F, paragraph (f) under the heading
"Transitional Action by Both Parties" is amended, such that each
reference to the term "Closing Date" is deleted and in place thereof,
in each instance, is inserted the term "Effective Time".
SECTION 3. MISCELLANEOUS
3.1 Counterparts. This Amendment may be executed in two or more
counterparts, each of which shall be an original, by all of which shall
constitute one and the same agreement.
3.2 Headings. The section headings set forth in this Amendment are for
convenience only and shall not affect the construction hereof.
3.3 Entire Agreement. This Amendment contains the entire agreement and
understanding of the parties with respect to its subject matter. This Amendment
supersedes all prior agreements and understandings between the parties, both
written and oral, with respect to its subject matter.
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IN WITNESS WHEREOF, the parties have caused this Amendment to be duly
executed as a relevant instrument by their duly authorized officer as of the day
and year first written above.
THE PARK NATIONAL BANK
By: /s/ DAVID C. BOWERS
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Title: SVP
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KEYBANK NATIONAL ASSOCIATION
By: /s/ PHILIP J. ENGLISH
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Title: AVP
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