EXHIBIT 10.5
DIRECTOR SUPPLEMENTAL RETIREMENT PROGRAM
DIRECTOR AGREEMENT
This Agreement, made and entered into this 4th day of June, 1999, by and
between Ameriana Bank of Indiana, F.S.B., a Bank organized and existing under
the laws of the State of Indiana, hereinafter referred to as "the Bank", and
[Director], a member of the Board of Directors of the Bank, hereinafter referred
to as "the Director".
The Director has been on the Board of the Bank for several years and has
now and for years past faithfully served the Bank. It is the consensus of the
Board of Directors that the Director's services have been of exceptional merit,
in excess of the compensation paid and an invaluable contribution to the profits
and position of the Bank in its field of activity. The Board further believes
that the Director's experience, knowledge of corporate affairs, reputation and
industry contacts are of such value and his continued services so essential to
the Bank's future growth and profits that it would suffer severe financial loss
should the Director terminate his service on the Board.
Accordingly, the Board of the Bank has adopted the Ameriana Bank of
Indiana, F.S.B. Director Supplemental Retirement Program (the Plan) and it is
the desire of the Bank and the Director to enter into this Agreement under which
the Bank will agree to make certain payments to the Director upon his retirement
and to his beneficiaries in the event of his death pursuant to the Plan.
It is the intent of the parties hereto that this Agreement be considered
an arrangement maintained primarily to provide supplemental retirement benefits
for the Director, and to be considered a non-qualified benefit plan for purposes
of the Employee Retirement Security Act of 1974 (ERISA). The Director is fully
advised of the Bank's financial status and has had substantial input in the
design and operation of this benefit plan.
Therefore, in consideration of services the Director has performed in the
past and those to be performed in the future and based upon the mutual promises
and covenants herein contained, the Bank and the Director agree as follows:
I. INDEXED PLAN
The Director is hereby subject to the terms and conditions of the Plan
adopted by the Board of Directors of the Bank to be effective on June 4,
1999; a copy of the terms and conditions of the Plan being attached hereto
as Exhibit I and made a part hereof by reference.
II. MISCELLANEOUS
A. Alienability and Assignment Prohibition:
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Neither the Director, his/her surviving spouse nor any other
beneficiary under this Agreement shall have any power or right to
transfer, assign, anticipate, hypothecate, mortgage, commute, modify
or otherwise encumber in advance any of the benefits payable
hereunder nor shall any of said benefits be subject to seizure for
the payment of any debts, judgments, alimony or separate maintenance
owed by the Director or his beneficiary, nor be transferable by
operation of law in the event of bankruptcy, insolvency or otherwise.
In the event the Director or any beneficiary attempts assignment,
commutation, hypothecation, transfer or disposal of the benefits
hereunder, the Bank's liabilities shall forthwith cease and
terminate.
B. Binding Obligation of the Bank and any Successor in Interest:
------------------------------------------------------------
The Bank shall not merge or consolidate into or with another bank or
sell substantially all of its assets to another bank, firm or person
until such bank, firm or person expressly agrees, in writing, to
assume and discharge the duties and obligations of the Bank under
this Agreement. This Agreement shall be binding upon the parties
hereto, their successors, beneficiaries, heirs and personal
representatives.
C. Revocation:
----------
It is agreed by and between the parties hereto that, during the
lifetime of the Director, this Agreement may be amended or revoked at
any time or times, in whole or in part, by the mutual written consent
of the Director and the Bank.
D. Gender:
------
Whenever in this Agreement words are used in the masculine or neuter
gender, they shall be read and construed as in the masculine,
feminine or neuter gender, whenever they should so apply.
E. Effect on Other Bank Benefit Plans:
----------------------------------
Nothing contained in this Agreement shall affect the right of the
Director to participate in or be covered by any qualified or non-
qualified pension, profit-sharing, group, bonus or other supplemental
compensation or fringe benefit plan constituting a part of the Bank's
existing or future compensation structure.
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F. Headings:
--------
Headings and subheadings in this Agreement are inserted for reference
and convenience only and shall not be deemed a part of this
Agreement.
G. Applicable Law:
--------------
The validity and interpretation of this Agreement shall be governed
by the laws of the State of Indiana.
III. ERISA PROVISION
A. Named Fiduciary and Plan Administrator:
--------------------------------------
The "Named Fiduciary and Plan Administrator" of this Plan shall be
Ameriana Bank of Indiana, F.S.B. until its resignation or removal by
the Board of Directors. As Named Fiduciary and Plan Administrator,
the Bank shall be responsible for the management, control and
administration of the Director's Supplemental Retirement Program as
established herein. The Named Fiduciary may delegate to others
certain aspects of the management and operation responsibilities of
the Plan including the employment of advisors and the delegation of
ministerial duties to qualified individuals.
B. Claims Procedure and Arbitration:
--------------------------------
In the event a dispute arises over benefits under this Agreement and
benefits are not paid to the Director (or to his beneficiary in the
case of the Director's death) and such claimants feel they are
entitled to receive such benefits, then a written claim must be made
to the Named Fiduciary and Plan Administrator named above within
sixty (60) days from the date payments are refused. The Named
Fiduciary and Plan Administrator shall review the written claim and
if the claim is denied, in whole or in part, they shall provide in
writing within sixty (60) days of receipt of such claim their
specific reasons for such denial, reference to the provisions of this
Agreement upon which the denial is based and any additional material
or information necessary to perfect the claim. Such written notice
shall further indicate the additional steps to be taken by claimants
if a further review of the claim denial is desired. A claim shall be
deemed denied if the Named Fiduciary and Plan Administrator fail to
take any action within the aforesaid sixty-day period.
If claimants desire a second review they shall notify the Named
Fiduciary and Plan Administrator in writing within sixty (60) days of
the first claim denial. Claimants may review this Agreement or any
documents relating thereto and submit any written issues and comments
they may feel appropriate. In their sole discretion, the Named
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Fiduciary and Plan Administrator shall then review the second claim
and provide a written decision within sixty (60) days of receipt of
such claim. This decision shall likewise state the specific reasons
for the decision and shall include reference to specific provisions
of the Plan Agreement upon which the decision is based.
If claimants continue to dispute the benefit denial based upon
completed performance of this Agreement or the meaning and effect of
the terms and conditions thereof, then claimants may submit the
dispute to a Board of Arbitration for final arbitration. Said Board
shall consist of one member selected by the claimant, one member
selected by the Bank and the third member selected by the first two
members. The Board shall operate under any generally recognized set
of arbitration rules. The parties hereto agree that they and their
heirs, personal representatives, successors and assigns shall be
bound by the decision of such Board with respect to any controversy
properly submitted to it for determination.
Where a dispute arises as to the Bank's discharge of the Director
"for cause", such dispute shall likewise be submitted to arbitration
as above described and the parties hereto agree to be bound by the
decision thereunder.
IN WITNESS WHEREOF, the parties hereto acknowledge that each has carefully
read this Agreement and executed the original thereof on the 30th day of August,
1999, and that, upon execution, each has received a conforming copy.
AMERIANA BANK OF INDIANA, F.S.B.
New Castle, Indiana
By:
------------------------ --------------------------------
Witness Title
------------------------ ------------------------------
Witness Director
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EXHIBIT I
AMERIANA BANK OF INDIANA, F.S.B.
DIRECTOR'S SUPPLEMENTAL RETIREMENT PROGRAM
1. DEFINITIONS
A. Effective Date:
--------------
The effective date of the Ameriana Bank of Indiana, F.S.B. Director's
Supplemental Retirement Program (the Plan) shall be June 4, 1999.
B. Plan Year:
---------
Any reference to "the Plan Year" shall mean a calendar year from
January 1 to December 31. In the year of implementation, the term
"the Plan year" shall mean the period from the effective date to
December 31 of the year of the effective date.
C. Retirement Date:
---------------
The Retirement Date shall mean retirement from service on the Board
of Directors of the Bank (the Board) which becomes effective on the
first day of the calendar month following the month in which the
Director reaches age sixty-five (65) or such later date as the
Director may actually retire.
D. Termination of Service:
----------------------
Termination of Service shall mean voluntary resignation by the
Director from service on the Board or failure of re-election to the
Board prior to the Director's Normal Retirement Age [Subparagraph I
(J)].
E. Pre-Retirement Account:
----------------------
A Pre-Retirement Account shall be established as a liability reserve
account on the books of the Bank for the benefit of each Director in
the Plan. Prior to a Director's Retirement Date, such liability
reserve account shall be increased or decreased each year by an
amount equal to the annual earnings or loss for that year determined
by the Index (described in Subparagraph I (G) hereinafter), less the
Cost of Funds Expense for that year (described in Subparagraph I (H)
hereinafter).
F. Index Retirement Benefit:
------------------------
The Index Retirement Benefit for each Director in the Plan shall be
equal to the annual earnings or loss determined by the Index
[Subparagraph I (G)] less the Cost of Funds Expense [Subparagraph I
(H)].
G. Index:
-----
The Index for any Plan Year shall be the aggregate annual after-tax
income from the life insurance contract(s) described hereinbelow as
defined by FASB Technical Bulletin 85-4. This Index shall be applied
as if such insurance contracts were purchased on the Effective Date
of the Director Plan.
Insurance Company: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Life
Policy Form: Flexible Premium Adjustable Life
Policy Name: Executive Security Plan IV
Insured's Age and Sex: ______________________
Riders: None
Ratings: According to the health of the insured
Option: Level Death Benefit
Face Amount: $264,000
Premiums Paid: $100,000
Number of Premium Payments: One
Assumed Purchase Date: June 4, 1999
Insurance Company: Transamerica Assurance
Policy Form: Flexible Premium Adjustable life
Policy Name: Tac Saver
Insured's Age and Sex: ________________________
Riders: None
Ratings: According to the health of the insured
Option: Level Death Benefit
Face Amount: $147,000
Premiums Paid: $100,000
Number of Premium Payments: One
Assumed Purchase Date: June 4, 1999
If such contracts of life insurance are actually purchased by the
Bank, then the actual policies as of the dates they were actually
purchased shall be used in calculations under this Director Plan. If
such contracts of life insurance are not purchased or are
subsequently surrendered or lapsed, then the Bank shall receive
annual policy illustrations that assume the above-described policies
were purchased, or had not subsequently surrendered or lapsed, which
illustrations will be received from the
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respective insurance companies and will indicate the increase in
policy values for purposes of calculating the amount of the Index.
In either case, references to the life insurance contracts are merely
for purposes of calculating a benefit. The Bank has no obligation to
purchase such life insurance and, if purchased, the Directors and
their beneficiary(ies) shall have no ownership interest in such
policy and shall always have no greater interest in the benefits
under this Director Plan than that of an unsecured creditor of the
Bank.
H. Cost of Funds Expense:
---------------------
The Cost of Funds Expense for the year shall be calculated by taking
the sum of the amount of premiums set forth in the Indexed policies
described above plus the amount of any after-tax benefits paid to any
director pursuant to the Plan (Paragraph II hereinafter) plus the
amount of all previous years after-tax Costs of Funds Expense, and
multiplying that sum by the average annualized after-tax Cost of
Funds of the Bank's third quarter Call Report for the Plan Year as
filed with the Office of Thrift Supervision Annual Thrift Financial
Report of the Ameriana Bank of Indiana, F.S.B.
I. Change of Control:
-----------------
A Change of Control shall be deemed to have occurred if, at any time
during the period of tenure of the director, more than twenty five
percent (25%) of the Parent's or Bank's outstanding Common Stock, or
equivalent in voting power of any class or classes of outstanding
securities of the Parent or Bank ordinarily entitled to vote in
elections of directors of Parent or Bank, shall be acquired by any
other corporations or other person or group. "Group" shall mean
persons who act in concert as described in Section 13 (d) of the
Securities Exchange Act of 1934, as amended.
J. Normal Retirement Age:
---------------------
Normal Retirement Age shall mean the date on which the Director
attains age sixty-five (65).
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II. INDEX BENEFITS
A. Retirement Benefits:
-------------------
Those Directors who remain on the Board of the Bank until the "Normal
Retirement Age" defined in Subparagraph I (J), shall be entitled to
receive the balance in their Pre-Retirement Account in ten (10) equal
annual installments commencing thirty days following the Director's
retirement. In addition to these payments and commencing in the Plan
Year in which the Director retires, the Index Retirement Benefit (as
defined in Subparagraph I (F) above) for each Plan Year shall be paid
to the Director until the Director's death.
B. Termination of Service:
----------------------
Subject to Subparagraph II (D) hereinbelow, should the Director
suffer a termination of service, the Director shall be entitled to
receive ten percent (10%) times the number of full years of service
on the Board from the date of first service [to a maximum of one
hundred percent (100%)], times the balance in the Pre-Retirement
Account paid over ten (10) years in equal installments commencing
thirty (30) days following the Director's Normal Retirement Age
[Subparagraph I (J)]. In addition to these payments and commencing in
the Plan Year in which the Director attains Normal Retirement Age,
ten percent (10%) times the number of full years of service on the
Board from the date of first service [to a maximum of one hundred
percent (100%)], times the Index Retirement Benefit for each year
shall be paid to the Director until the Director's death.
C. Death:
-----
Should the Director die prior to having received that portion of the
Pre-Retirement Account the Director was entitled to pursuant to
Subparagraph II (A) or (B) herein above, as the case may be, the
unpaid balance of the Pre-Retirement Account shall be paid to the
beneficiary selected by the Director and filed with the Bank. In the
absence of or a failure to designate a beneficiary, the unpaid
balance shall be paid in a lump sum to the personal representative of
the Director's estate.
D. Discharge for Cause:
-------------------
Should the Director be discharged for cause, all benefits under this
Agreement shall be forfeited. A termination for "cause" shall include
termination because of the Director's personal dishonesty,
incompetence, willful misconduct, breach of fiduciary duty involving
personal profit, intentional failure to perform stated duties,
willful violation of any law, rule or regulation (other than traffic
violations or similar offenses) or final cease-and-desist order, or
material breach of any provision of this
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Agreement.
E. Disability Benefit:
------------------
In the event the Director becomes disabled prior to Termination of
Service, and the Director's employment is terminated because of such
disability, he shall immediately begin receiving the benefits in
Subparagraph II (A) above. Such benefit shall begin without regard to
the Director's Normal Retirement Age and the Director shall be one
hundred percent (100%) vested in the entire benefit amount. The term
"disability" shall mean the complete inability of the Director to
perform the Director's duties as determined by an independent
physician selected with the approval of the Bank and the Director.
F. Death Benefit:
-------------
Except as set forth above, there is no death benefit provided under
this Agreement.
III. RESTRICTIONS UPON FUNDING
The Bank shall have no obligation to set aside, earmark or entrust any
fund or money with which to pay its obligations under this Agreement. The
Directors, their beneficiaries, or any successor in interest shall be and
remain simply a general creditor of the Bank in the same manner as any
other creditor having a general claim for matured and unpaid compensation.
The Bank reserves the absolute right, at its sole discretion, to either
fund the obligations undertaken by this Agreement or to refrain from
funding the same and to determine the extent, nature and method of such
funding. Should the Bank elect to fund this Agreement, in whole or in
part, through the purchase of life insurance, mutual funds, disability
policies or annuities, the Bank reserves the absolute right, in its sole
discretion, to terminate such funding at any time, in whole or in part. At
no time shall any Director be deemed to have any lien nor right, title or
interest in or to any specific funding investment or to any assets of the
Bank.
If the Bank elects to invest in a life insurance, disability or annuity
policy upon the life of the Director, then the Director shall assist the
Bank by freely submitting to a physical exam and supplying such additional
information necessary to obtain such insurance or annuities.
IV. CHANGE OF CONTROL
Upon a Change of Control [as defined in Subparagraph I (I) herein], if the
Director is subsequently terminated, except for cause, then the Director
shall receive the benefits promised in this Agreement upon attaining
Normal Retirement Age, as if the Director had been continuously serving
the Bank until Normal Retirement Age. The Director will also
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remain eligible for all promised death benefits in this Agreement. In
addition, no sale, merger or consolidation of the Bank shall take place
unless the new or surviving entity expressly acknowledges the obligations
under this Agreement and agrees to abide by its terms.
This Director's Supplemental Retirement Program adopted this 30th day of
August, 1999.
AMERIANA BANK OF INDIANA, F.S.B.
New Castle, Indiana
--------------------------------
Chairman of the Board
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LIFE INSURANCE
ENDORSEMENT METHOD SPLIT DOLLAR PLAN
AGREEMENT
Insurer: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Life Insurance Company
Transamerica Assurance
Policy Number: AH5061969
▇▇▇▇▇▇▇▇
Bank: Ameriana Bank of Indiana, F.S.B.
Insured: ___________________________
Relationship of Insured to Bank: Director
The respective rights and duties of the Bank and the Insured in the above-
referenced policy shall be pursuant to the terms set forth below:
I. DEFINITIONS
Refer to the policy contract for the definition of all terms in this
Agreement.
II. POLICY TITLE AND OWNERSHIP
Title and ownership shall reside in the Bank for its use and for the use
of the Insured all in accordance with this Agreement. The Bank alone may,
to the extent of its interest, exercise the right to borrow or withdraw on
the policy cash values. Where the Bank and the Insured (or assignee, with
the consent of the Insured) mutually agree to exercise the right to
increase the coverage under the subject Split Dollar policy, then, in such
event, the rights, duties and benefits of the parties to such increased
coverage shall continue to be subject to the terms of this Agreement.
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III. BENEFICIARY DESIGNATION RIGHTS
The Insured (or assignee) shall have the right and power to designate a
beneficiary or beneficiaries to receive the Insured's share of the
proceeds payable upon the death of the Insured, and to elect and change a
payment option for such beneficiary, subject to any right or interest the
Bank may have in such proceeds, as provided in this Agreement.
IV. PREMIUM PAYMENT METHOD
The Bank shall pay an amount equal to the planned premiums and any other
premium payments that might become necessary to keep the policy in force.
V. TAXABLE BENEFIT
Annually the Insured will receive a taxable benefit equal to the assumed
cost of insurance as required by the Internal Revenue Service. The Bank
(or its administrator) will report to the Insured the amount of imputed
income each year on Form W-2 or its equivalent.
VI. DIVISION OF DEATH PROCEEDS
Subject to Paragraphs VII and IX herein, the division of the death
proceeds of the policy is as follows:
A. Should the Insured be employed by the Bank, retired from the Bank, or
terminated from the Bank due to disability, at the time of his or her
death, the Insured's beneficiary(ies), designated in accordance with
Paragraph III, shall be entitled to an amount equal to eighty percent
(80%) of the net at risk insurance portion of the proceeds. The net
at risk insurance portion is the total proceeds less the cash value
of the policy.
B. Should the Insured not be employed by the Bank at the time of his or
her death, the Insured's beneficiary(ies), designated in accordance
with Paragraph III, shall be entitled to the following percentage of
the proceeds described in Subparagraph VI (A) hereinabove that
corresponds to the number of full years the Insured has been employed
with the Bank since the date of first employment:
Total Years
of Employment
with the Bank Vested
------------- ------
1 or more 10% per year
(to a maximum of 100%)
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C. The Bank shall be entitled to the remainder of such proceeds.
D. The Bank and the Insured (or assignees) shall share in any interest
due on the death proceeds on a pro rata basis as the proceeds due
each respectively bears to the total proceeds, excluding any such
interest.
VII. DIVISION OF THE CASH SURRENDER VALUE OF THE POLICY
The Bank shall at all times be entitled to an amount equal to the policy's
cash value, as that term is defined in the policy contract, less any
policy loans and unpaid interest or cash withdrawals previously incurred
by the Bank and any applicable surrender charges. Such cash value shall be
determined as of the date of surrender or death as the case may be.
VIII. RIGHTS OF PARTIES WHERE POLICY ENDOWMENT OR ANNUITY ELECTION EXISTS
In the event the policy involves an endowment or annuity element, the
Bank's right and interest in any endowment proceeds or annuity benefits,
on expiration of the deferment period, shall be determined under the
provisions of this Agreement by regarding such endowment proceeds or the
commuted value of such annuity benefits as the policy's cash value. Such
endowment proceeds or annuity benefits shall be considered to be like
death proceeds for the purposes of division under this Agreement.
IX. TERMINATION OF AGREEMENT
This Agreement shall terminate if the Insured shall be discharged from
employment with the Bank for cause. The term "for cause" shall mean gross
negligence or gross neglect or the commission of a felony or gross
misdemeanor involving moral turpitude, fraud, dishonesty or willful
violation of any law that results in any adverse effect on the Bank.
Upon such termination, the Insured (or assignee) shall have a forty-five
(45) day option to receive from the Bank an absolute assignment of the
policy in consideration of a cash payment to the Bank, whereupon this
Agreement shall terminate. Such cash payment referred to hereinabove shall
be the greater of:
1. The Bank's share of the cash value of the policy on the date of such
assignment, as defined in this Agreement; or
2. The amount of the premiums which have been paid by the Bank prior to
the date of such assignment.
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If, within said forty-five (45) day period, the Insured fails to exercise
said option, fails to procure the entire aforestated cash payment, or
dies, then the option shall terminate, and the Insured (or assignee)
agrees that all of the Insured's rights, interest and claims in the policy
shall terminate as of the date of the termination of this Agreement.
Except as provided above, this Agreement shall terminate upon distribution
of the death benefit proceeds in accordance with Paragraph VI above.
X. INSURED'S OR ASSIGNEE'S ASSIGNMENT RIGHTS
The Insured may not, without the written consent of the Bank, assign to
any individual, trust or other organization, any right, title or interest
in the subject policy nor any rights, options, privileges or duties
created under this Agreement.
XI. AGREEMENT BINDING UPON THE PARTIES
This Agreement shall bind the Insured and the Bank, their heirs,
successors, personal representatives and assigns.
XII. NAMED FIDUCIARY AND PLAN ADMINISTRATOR
Ameriana Bank of Indiana, F.S.B. is hereby designated the "Named
Fiduciary" until resignation or removal by the Board of Directors. As
Named Fiduciary, the Bank shall be responsible for the management,
control, and administration of this Split Dollar Plan as established
herein. The Named Fiduciary may allocate to others certain aspects of the
management and operation responsibilities of the Plan, including the
employment of advisors and the delegation of any ministerial duties to
qualified individuals.
XIII. FUNDING POLICY
The funding policy for this Split Dollar Plan shall be to maintain the
subject policy in force by paying, when due, all premiums required.
XIV. CLAIM PROCEDURES FOR LIFE INSURANCE POLICY AND SPLIT DOLLAR PLAN
Claim forms or claim information as to the subject policy can be obtained
by contacting The Benefit Marketing Group, Inc. (770-952-1529). When the
Named Fiduciary has a claim which may be covered under the provisions
described in the insurance policy, they should contact the office named
above, and they will either complete a claim form and forward it to an
authorized representative of the Insurer or advise the named Fiduciary
what further requirements are necessary.
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The Insurer will evaluate and make a decision as to payment. If the claim
is payable, a benefit check will be issued to the Named Fiduciary.
In the event that a claim is not eligible under the policy, the Insurer
will notify the Named Fiduciary of the denial pursuant to the requirements
under the terms of the policy. If the Named Fiduciary is dissatisfied with
the denial of the claim and wishes to contest such claim denial, they
should contact the office named above and they will assist in making
inquiry to the Insurer. All objections to the Insurer's actions should be
in writing and submitted to the office named above for transmittal to the
Insurer.
XV. GENDER
Whenever in this Agreement words are used in the masculine or neuter
gender, they shall be read and construed as in the masculine, feminine or
neuter gender, whenever they should so apply.
XVI. INSURANCE COMPANY NOT A PARTY TO THIS AGREEMENT
The Insurer shall not be deemed a party to this Agreement, but will
respect the rights of the parties as herein developed upon receiving an
executed copy of this Agreement. Payment or other performance in
accordance with the policy provisions shall fully discharge the Insurer
for any and all liability.
Executed at New Castle, Indiana this 30th day of August, 1999.
AMERIANA BANK OF INDIANA, F.S.B.
New Castle, Indiana
By:
------------------------ --------------------------------
Witness Title
------------------------ --------------------------------
Witness Director
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