MASTER NOTE
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NOTE NO. _____________
________________, 1998
$3,500,000 (Effective Date)
Cincinnati, Ohio
On or before the Due below, PEOPLES BANCORP, INC., an Ohio corporation
(hereinafter referred to as "Borrower") for value received, promises to pay
the order of THE FIFTH THIRD BANK, an Ohio banking corporation, whose address
is ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ (hereinafter referred
to as "Bank") the sum of THREE MILLION FIVE HUNDRED THOUSAND AND NO/100
DOLLARS ($3,500,000) (hereinafter referred to as the "Maximum Amount") plus
interest as provided herein, or such lesser amount as may be advanced by Bank
and as may be outstanding hereunder, less such amounts as shall have been
repaid in accordance with this note. The outstanding balance of this note
will appear on supplemental records of the Bank and is not necessarily the
face amount of this note. Such record shall be conclusive as to the balance
of this note at any time.
Reducing Revolving Credit Loans.
--------------------------------
On the date hereof, subject to the terms and conditions hereof, Bank hereby
extends to Borrower a committed reducing revolving line of credit facility
(the "Facility") under which Bank shall make loans (the "Revolving Loans")
to Borrower at Borrower's request from time to time during the term of this
Note in amounts not exceeding the Maximum Amount. The Maximum Amount
available to Borrower under the Facility shall be reduced by the amount of
$87,500 on July 1, 1998 and on the first day of each October, January, April
and July thereafter during the term hereof. If the aggregate amount of
Revolving Loans outstanding at any time under the Facility exceeds the limits
set forth above on any such date, Borrower will immediately pay the amount of
such excess to Bank in cash. Provided no Event of Default has occurred and is
continuing, Borrower may borrow, repay, and reborrow under the Facility,
provided that the principal amount of all Revolving Loans outstanding at any
one time under the Facility will not exceedthe Maximum Amount, as reduced
from time to time during the term hereof.
In the event Borrower fails to pay such excess, Bank may, in their discretion,
setoff such amount against ▇▇▇▇▇▇▇▇'s accounts at Bank. In addition to the
foregoing, ▇▇▇▇▇▇▇▇ agrees that at no time during the term hereof, the
aggregate outstanding principal amount of all Revolving Loans hereunder shall
not be less than the Maximum Amount then applicable at such time as set forth
on Exhibit A attached hereto.
At Borrower's request from time to time Bank shall make Revolving Loans to
Borrower for LIBOR Interest Periods and at interest rates agreed to between
Bank and Borrower as more fully set forth herein.
Interest Rates:
---------------
Borrower will pay interest to Bank on the principal amount outstanding under
the Facility at a rate of per annum equal to the interest rates set forth
below. Any principal amount not paid when due (at maturity, by acceleration
or otherwise) will bear interest thereafter until paid at the Default Rate;
this provision does not constitute a waiver of any Events of Default or an
agreement by Bank to permit any late payments whatsoever.
Notwithstanding any other provision set forth in the Note, the principal
balance outstanding will bear interest at a rate per annum equal to (a) the
Prime Rate floating, as in effect from time to time or (b) the LIBOR Rate
plus 100 basis points (the "Note Rate"). Interest will be payable in
immediately available funds at the principal office of Bank. Interest shall
be calculated based on a 360-day year and charged for the actual number of
days elapsed, and will be payable (i) on the first (1st) day of each calendar
month for Revolving Loans accruing interest at an interest rate based upon
the LIBOR Rate. When interest is accruing at a rate based upon the LIBOR
Rate, each date the interest rate is adjusted, the interest rate will remain
at such rate for the remainder of the LIBOR Interest Period.
On or before the date of any advance hereunder, and on or before the
expiration of any LIBOR Interest Period, Borrower shall notify Bank (a) which
interest rate Borrower has elected, (b) which LIBOR Interest Period Borrower
has elected regarding each Borrowing hereunder, (c) the amount of such
Borrowing and (d) the commencement date of each LIBOR Interest Period (a
"LIBOR Election"). If at any time during the term hereof, ▇▇▇▇▇▇▇▇ fails to
designate a LIBOR Interest Period and ▇▇▇▇▇▇▇▇ has not elected another LIBOR
Interest Period, Bank may assume that ▇▇▇▇▇▇▇▇ has elected the Prime Rate.
In addition, notwithstanding anything herein contained to the contrary, if,
prior to or during with respect tot he LIBOR Rate, any change in any law,
regulation or official directive, or in the interpretation thereof, by any
governmental body charged with the administration thereof, shall make it
unlawful for the Bank to find or maintain its funding Eurodollars of any
portion of the Borrowings subject to the LIBOR Rate or otherwise to give
effect to Bank's obligations as contemplated hereby: (i) Bank may, by written
notice to ▇▇▇▇▇▇▇▇, declare Bank's obligations in respect of the LIBOR Rate
to be terminated forthwith, and (ii) the LIBOR Rate with respect to Bank
shall forthwith cease to be in effect, and interest shall from and after
such date be calculated at the Prime Rate, and interest shall be paid on the
first (1st) day of each calendar month. ▇▇▇▇▇▇▇▇ hereby agrees to reimburse
and indemnify Bank from all increased costs or fees incurred by Bank
subsequent to the date hereof relating to the offering of interest rates
based upon the LIBOR Rate.
Provisions Relating to the Facility.
------------------------------------
Borrower shall have the right to select the interest rate and the LIBOR
Interest Period for each Revolving Loan on or before the first day of each
LIBOR Interest Period. Each request by Borrower for a Revolving Loan under
the Facility will be made by telephone prior to 11:00 A.M., Cincinnati, Ohio
time on any Business Day on which a Revolving Loan is requested. Bank will,
if Revolving Loans are then available to Borrower under the Facility, quote
Borrower the interest rate based on the maturity requested by Borrower as of
the date of such request. Borrower shall, at the time of quote, either accept
or reject the quote, and if accepted, Bank will credit ▇▇▇▇▇▇▇▇'s account for
the amount of the Revolving Loan or otherwise disburse the proceeds as agreed
upon between Borrower and Bank. The amount of the interest rate on and the
maturity date of each Loan shall be evidenced by the ledgers and records
(including computer records) of Bank, which, in the case of a dispute, shall
be conclusive except for manifest error.
Each Revolving Loan funded by Bank shall be in the minimum principal sum
equal to the Maximum Amount available on such date. ▇▇▇▇▇▇▇▇ agrees to repay
Bank on the date then due each Revolving Loan now or hereafter made by Bank
to Borrower, together with interest thereon at the agreed rate.
Borrower shall have no right to prepay any Revolving Loan made by Bank prior
to the agreed maturity date of such Revolving Loan. If any Revolving Loan is
repaid prior to the last day of the applicable LIBOR Interest Period,
▇▇▇▇▇▇▇▇ agrees to reimburse bank for all damages and losses incurred by
Bank as a result of such prepayment.
The Borrower shall provide Bank with a list of those persons authorized to
orally request Revolving Loan advances under this Note. Bank may rely on
such list until amended in writing by ▇▇▇▇▇▇▇▇.
Each Revolving Loan accruing interest at the LIBOR Rate shall be for a LIBOR
Interest Period agreed to between Bank and Borrower, however, each Revolving
Loan shall have a minimum term of at least 7 days and shall have a maturity
no greater than 90 days. Each Revolving Loan, together with interest thereon,
shall be repaid in immediately available funds at the main office of Bank on
the date agreed by Bank and Borrower. All outstanding principal and all
accrued and unpaid interest shall be paid in full on the maturity date of
the Revolving Loan. In the event Borrower shall fail to pay any Revolving
Loan when due, all Revolving Loans outstanding to Borrower shall, at the
option of the Bank, become immediately due and payable without presentment,
demand, protest or notice of any kind.
All payments of principal and interest made by Borrower to Bank shall be
made no later than 2:00 P.M., Cincinnati, Ohio time, on the Business Day
such payments are due. All amounts paid after such time will be credited on
the following date.
Borrower will pay to Bank its fees, costs and expenses (including, without
limitation, reasonable attorney's fees, other professionals' fees, appraisal
fees, environmental assessment fees, expert fees, court costs, litigation
and other expense (collectively, "Costs") incurred or paid by bank in
connection with the negotiating, documenting, administering and enforcing the
Facility, the Loans and the defense, preservation and protection of Bank's
rights and remedies thereunder, including without limitation, any security
interest in any collateral or any other property pledged to secure the Loans,
whether incurred in bankruptcy, insolvency, foreclosure or other litigation
or Costs when upon such demand, Bank is entitled to disburse such sums as an
advance under the Facility. Thereafter, the Costs will bear interest from
the date incurred or disbursed at the highest rate set forth in the Note.
This provision will survive the termination of this Agreement and/or the
repayment of any amounts due or the performance of any Obligation.
Due Date.
---------
In addition to the dates agreed to between Bank and Borrower relating to
advances under the Facility, all outstanding amounts of principal and all
accrued and unpaid interest owed to Bank shall be due and payable in full
on December 31, 1998 (the "Due Date").
To secure repayment of this note and all modifications, extensions and
renewals thereof, and all other Obligations (as herein defined) the Borrower
to Bank, the Borrower grants Bank a continuing security interest in all of
the Borrower's, now owned or hereafter acquired interests in all property in
which Bank are at any time, granted a lien for any Obligation, and all
property in possession of either Bank including, without limitation, money,
securities, instruments, documents, letters of credit, chattel paper, or
other property delivered to Bank in transit, for safekeeping, or for
collection or exchange for other property, all distributions, dividends,
warrants, securities and other rights in addition to such property, all
rights to payment from and claims against Bank and all proceeds thereof, and
all real and personal property described below ("Collateral"). The Borrower
agrees to immediately deliver such additional dividends, warrants, securities
or other property or rights thereto to Bank immediately upon receipt as
additional Collateral and until delivery to hold same in trust for Bank. The
Borrower agrees that the Bank may, at any time, call for additional
Collateral satisfactory to it. All documents executed in connection with
this note and all Collateral, including without limitation the following,
further secure the Obligations:
100% of the outstanding common capital stock of First National Bank of
Southeastern Ohio and a pledge of the securities as more particularly
described in the Pledge Agreements.
The Obligations secured by the Collateral shall include this note and each
and every liability of the Borrower jointly or severally to Bank and all
affiliates of Fifth Third Bancorp however created, direct or contingent, due
or to become due, whether now existing or hereafter arising, participated in
whole or in part, created by trust agreement, lease, overdraft, agreement.
Or otherwise in any manner acquired by the Borrower. Said security interest
shall not be enforced to the extent prohibited by the Truth in Lending Act
as implemented by Federal Reserve Regulation Z.
The Borrower certifies that the proceeds of this loan are to be used for
business purposes. If this note is a renewal, in whole or in part, of a
previous Obligation, the acceptance by Bank of this note shall not effectuate
a payment but rather a continuation of the previous Obligation.
Bank may charge and the Borrower agrees to pay on the above Effective Date,
a note processing fee in an amount determined by Bank.
Events of Default.
------------------
This note, and all other Obligations of the Borrower of Bank, shall be and
become immediately due and payable at the option of the Bank, without any
demand or notice whatsoever, upon the occurrence of any of the following
described events, each of which shall constitute an Event of Default:
1) Any failure to make any payment when due of the principal or interest
on this note, the occurrence of any event of default as therein defined
on any other Obligations of the Borrower, or a default in the Obligations
under any security documents or in performing any covenants set forth in
the Addendum attached hereto.
2) The death or dissolution of the Borrower, of any endorser or guarantor,
or if the Borrower is a partnership, the death or dissolution of a
general partner.
3) Any failure to submit to Bank current financial information upon request.
4) The creation of any lien (except liens to Bank) or the issuance of an
attachment against or seizure of any of the property of, or the entry of
judgment against, the Borrower.
5) In the judgment of Bank, and adverse change occurs in the ability of the
Borrower to repay the Obligations, or the Bank deem themselves insecure.
6) An assignment for the benefit of the creditors of, or the commencement of
any bankruptcy, receivership, insolvency, reorganization, or liquidation
proceedings by or against the Borrower or any endorser or guarantor
hereof.
7) The institution of any garnishment proceedings by attachment, levy or
otherwise, against any Collateral, any deposit balance maintained or any
property deposited with the Bank by the Borrower or any endorser or
guarantor hereof.
8) The occurrence of an Event of Default under any indebtedness of any kind
of Borrower owed to Bank or any wholly-owned subsidiaries of Fifth Third
Bancorp.
Upon the occurrence of an Event of Default herein described Bank may, at
their option, cease making advances hereunder, declare this note and all
other Obligations of the Borrower, to be fully due and payable in their
aggregate amount together with accrued interest plus any applicable fees,
and charges.
In addition to any other remedy permitted by law, the Bank may at any time,
without notice, apply the Collateral to this note or such other Obligations,
whether due or not, and Bank may, at its option, proceed to enforce and
protect its rights by an action at law or in equity or by any other
appropriate proceedings. Notwithstanding any other legal or equitable rights
of Bank, Bank, in the Event of Default, are (a) hereby irrevocably appointed
and constituted attorney-in-fact, with full power of substitution, to
exercise all rights of ownership with respect to Collateral including, but
not limited to, the right to collect all income of other distributions
arising therefrom and to exercise all voting rights connected with
Collateral; and (b) hereby given full power to collect, sell, assign,
transfer and deliver all of said Collateral or any part thereof, or any
substitutes therefore, or any additions thereto, through any private or
public sale without either demand or notice to the Borrower, or any
advertisement, the same being hereby expressly waived, at which sale Bank is
authorized to purchase said property or any part thereof, free from any
right of redemption on the part of the Borrower, which is hereby expressly
waived and released. In case of sale for any cause, after deducting all costs
and expenses of every kind, Bank may apply, at they shall deem proper, the
residue of the proceeds of such sale toward the payment of any one or more
or all of the Obligations of the Borrower, whether due or not due, to Bank;
after such application and the return of any surplus, the Borrower agrees to
be and remains liable to Bank for any and every deficiency after application
as aforesaid upon this and any other Obligations. The Borrower shall pay all
costs of collection, whether or not payment is obtained before entry of
judgment, which costs and fees are Obligations secured by the Collateral.
If any payment is not paid when due (whether by acceleration or otherwise)
or within 10 days thereafter, ▇▇▇▇▇▇▇▇ agrees to pay to Bank a late payment
fee as provided for in any loan agreement or 5% of the payment amount, which
ever is greater with a minimum fee of $20.00. After an Event of Default, the
Borrower agrees to pay to Bank a fixed charge of $25.00, or the Borrower
agrees that bank may, without notice, increase the above stated interest
rate by 6%, whichever is greater. Under no circumstances shall said interest
rate be raised to a rate which shall be in excess of the maximum rate of
interest allowable under the state and/or federal usury laws in force at the
time of such change.
Representations and Warranties.
-------------------------------
Borrower hereby warrants and represents to Bank the following:
(a) Organization and Qualification. Borrower is a duly organized,
validly existing corporation in good standing under the laws of the
State of Ohio, its state of incorporation, has the power and
authority (corporate and otherwise) to carry on its business and to
enter into and perform this Note and is qualified and licensed to
do business in each jurisdiction in which such qualifications or
licensing is required. All information provided to Bank with respect
to Borrower and its operations is true and correct.
(b) Due Authorization. The execution, delivery and performance
by Borrower of this Agreement, the Pledge Agreements, this Note and
the other Loan Documents have been duly authorized by all necessary
corporate action, and will not contravene any law or any governmental
rule or order binding on Borrower, or the articles of incorporation,
code of regulations or bylaws of Borrower, nor violate any agreement
or instrument by which Borrower is bound nor result in the creation
of a Lien or any assets of Borrower except the Lien on any assets of
Borrower except the Lien granted to Bank herein. ▇▇▇▇▇▇▇▇ had duly
executed and delivered this Agreement, the Pledge Agreement, this
Note and the other Loan Documents and they are valid and binding
obligations of Borrower enforceable according to their respective
terms except as limited by equitable principles and by bankruptcy,
insolvency or similar laws affecting rights of creditors generally.
No notice to or consent by any governmental body is needed in
connection with this transaction.
(c) Margin Stock. No part of the Loans will be used to purchase
or carry, or to reduce or retire or refinance any credit incurred to
purchase or carry, any margin stock (within the meaning of Regulations U
and X of the Board of Governors of the Federal Reserve System) or to
extend credit to others for the purpose of purchasing or carrying any
margin stock. If requested by Bank, Borrower will furnish to Bank
statements in conformity with the requirements of Federal Reserve
Form U-1.
(d) Financial Condition. All financial information relating to
Borrower which has been or may hereafter be delivered by Borrower or
on its behalf to Bank is true and correct and has been prepared in
accordance with generally accepted accounting principles consistently
applied. Borrower has no material obligations or liabilities of any
kind not disclosed in that financial information, and there has been
no material adverse change in the financial condition of Borrower nor
has Borrower suffered any damage, destruction or loss which has
adversely affected its business or assets since the submission of the
most recent financial information to Bank.
Affirmative Covenants:
----------------------
(a) Books and Records.
------------------
Borrower will maintain proper books of account and records and enter
therein complete and accurate entries and records of all its
transactions in accordance with generally accepted accounting
principles and give representatives of Bank access thereto all
reasonable times, including permission to examine, copy and make
abstracts from any such books and records and such other information
which might be helpful to Bank in evaluating the status of the Loans
as it may reasonably request from time to time. Borrower will give
Bank reasonable access to the Collateral and the other property
securing the Obligations for the purpose of performing examinations
thereof and to verify its condition or existence.
(b) Financial Statements.
---------------------
Borrower will maintain a standard and modern system for accounting
and will furnish to Bank:
(i) Within thirty (30) days after the end of each quarter, a
copy of ▇▇▇▇▇▇▇▇'s consolidated financial statements for that
quarter and for the year to date in a form reasonably acceptable
to Bank, prepared and certified as complete and correct, subject
to changes resulting from year-end adjustments, by the principal
financial officer Borrower;
(ii) Within ninety (90) days after the end of each fiscal year,
a copy of ▇▇▇▇▇▇▇▇'s consolidated financial statements for that
year audited by a firm of independent certified public accountants
acceptable to Bank (which acceptance will not be unreasonably
withheld), and accompanied by a standard audit opinion of such
accountants without qualifications;
(iii) All of the statements referred to in (i) and (ii) above
shall be in conformance with generally accepted accounting
principles;
(iv) Prior to the end of each fiscal year, a projected balance
sheet, projected income statement and projected statement of cash
flow for the subsequent fiscal year prepared in accordance with
generally accepted accounting principles consistently applied;
(v) Immediately upon any officer of Borrower obtaining
knowledge of any condition or event which constitutes or, after
notice or lapse of time or both, constitutes an Event of Default,
a certificate of such person specifying the nature and period of
the existence thereof, and what action Borrower has taken or is
taking or proposes to take in respect thereof;
If at any time Borrower has any additional subsidiaries which
have financial statements that could be consolidated with those of
Borrower under generally accepted accounting principles, the financial
statements required by subsections (i) and (ii) above will be the
financial statements of Borrower and all such subsidiaries prepared
on a consolidated consolidating basis.
(c) Condition and Repair.
---------------------
Borrower will maintain its assets in good repair and working order
and will make all appropriate repairs and replacements thereof.
(d) Existence; Business.
--------------------
Borrower will (a) maintain its exercise, (b) engage primarily in
business of the same general character as that now conducted, and (c)
refrain from entering into any lines of business substantially
different from the business or activities in which Borrower is
presently engaged.
(e) Compliance with Laws.
---------------------
Borrower will comply with all federal, state and local laws,
regulations and orders applicable to Borrower or its assets including
but not limited to all Environmental Laws, in all respects material to
Borrower's business, assets or prospects and will immediately notify
Bank of any violation of any rule, regulation, statue, ordinance,
order or law relating to the public health or the environment and of
any complaint or notifications received by Borrower regarding to any
environmental or safety and health rule, regulation, statue, ordinance
or law.
(f) Notice of Default.
------------------
Borrower will, within three (3) days of its knowledge thereof, give
written notice to Bank of: (i) the occurrence of any event or the
existence of any condition which would be, after notice or lapse of
applicable grace periods, an Event of Default, and (ii) the occurrence
of any event or the existence of any condition which would prohibit
Borrower from continuing to make the representations set forth in this
Agreement.
(g) Other Amounts Deemed Loans.
---------------------------
If Borrower fails to pay any tax, assessment, governmental charge or
levy or to maintain insurance within the time permitted or required
by this Agreement, or to discharge any Lien prohibited hereby, or to
comply with any other Obligations, Bank may, but shall not be
obligated to pay, satisfy, discharge or bond the same for the account
of Borrower, and to the extent permitted by law and at the option of
Bank, all monies so paid by Bank on behalf of Borrower will be deemed
Loans and Obligations.
Negative Covenants.
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(a) Merger; Disposition of Assets.
------------------------------
Borrower will not, without the prior written consent of Bank, which
consent shall not be unreasonably withheld (i) change its capital
structure, (ii) merge or consolidate with any other corporation where
borrower is not surviving entity, (iii) amend or change its Articles
of Incorporation or Code of Regulations or (iv) sell, transfer or
otherwise dispose of all or any substantial part of its assets,
whether now owned or hereafter acquired.
(b) Minimum Tangible Net Worth.
---------------------------
Borrower will not permit its Tangible Net Worth, on a consolidated
basis, to be less than $50,000,000 as of the date hereof which shall
be increased as of the first day of each fiscal quarter (commencing
with the first fiscal quarter commencing subsequent to the date of
this Note) by an amount equal to 40% of Borrower's cumulative earnings
for each prior fiscal quarter of Borrower.
(c) Loan Loss Reserve to Non-Performing Assets.
-------------------------------------------
Borrower will not permit the ratio of (i) its Minimum Loan Loss
Reserve, on a consolidated basis (as shown on Borrower's quarterly
and annual financial statements delivered to Bank), to (ii) its Non-
Performing Assets (as shown on Borrower's quarterly and annual
financial statements delivered to Bank), to (ii) its Non-Performing
Assets (as shown on Borrower's quarterly and annual financial
statements delivered to Bank) to be less than 1.50 to 1.00 at any
time during the term hereof.
(d) Adequate Capitalization.
------------------------
Borrower will not permit its Capitalization Ratios as required by 12
U.S.C. Section 1831 (and any regulations issued thereunder) to be
less that the minimums required by such statute at any time during
the term hereof.
Definitions.
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"Collateral" shall mean all shares of common capital stock of First
National Bank of Southeastern Ohio and the other securities described in the
Pledge Agreement.
"Default Rate" means six percent (6%) in excess of the interest rate
otherwise in effect under amounts outstanding under the Note. In no event
will the interest rate accruing under such Note be increased to be in excess
of the maximum interest rate permitted by applicable state or federal usury
laws then in effect.
"LIBOR Rate" means the rate (adjusted for reserves if Bank is
required to maintain reserves with respect to relevant advances) being asked
on an amount of Eudodollar deposits equal to the amount of Borrowings subject
to a LIBOR Rate Election on the first day of a LIBOR Interest Period and
which has a maturity corresponding to the maturity of the LIBOR Interest
Period, as reported by the TELERATE rate reporting system (or any successor)
as determined by Bank by noon on the Effective Date of the LIBOR Interest
Period. Each determination by Bank of the LIBOR Rate shall be conclusive in
the absence of manifest error.
"LIBOR Interest Period" mans, will respect to a Borrowing elected to
accrue interest at the LIBOR Rate, periods of 30, 60, or 90 days, at
Borrower's election, commencing on a business day selected by the Borrower
pursuant to this Note. Such LIBOR Interest Period shall end on the day in
the succeeding calendar month which corresponds numerically to the beginning
day of such succeeding month, such LIBOR Interest period shall end on the
last business day of such succeeding month. If a LIBOR Interest Period would
otherwise end on a day which is not a business day, such LIBOR Interest
Period shall end on the next succeeding business day, provided, however,
that if said next succeeding business day falls in a new month, such LIBOR
Interest Period shall end on the immediately preceding business day.
"Lien" means any security interest, mortgage, pledge, assignment,
lien or other encumbrance of any kind, including interests of vendors or
lessors under conditional sale contracts and capitalized leases.
"Loan Documents" means this Note, the Pledge Agreement, and every
other document or agreement executed by any party evidencing, guarantying or
securing any of the Obligations; and "Loan Document" means any one of the
Loan Documents.
"Obligation(s) means all loans, advances, indebtedness, liabilities
and obligations of Borrower owed to each of Bank and the Affiliates of Fifth
Third Bancorp of every kind and description whether now existing or hereafter
arising including without limitations, those owed by Borrower to others and
acquired by bank or any Affiliate of Fifth Third Bancorp, by purchase,
assignment or otherwise, and whether direct or indirect, primary or as
guarantor or surety, absolute or contingent, liquidated or unliquidated,
matured or unmatured, whether or not secured by additional collateral, and
including without limitation all liabilities, obligations to perform or
forbear from performing acts, all amounts represented by letters of credit
now or hereafter issued by Bank for the benefit of or at the request of
Borrower, and all expenses and attorneys' fees incurred by bank and any
Affiliate of Fifth Third Bancorp under this Note or any other document or
instrument related to any of the foregoing.
"Pledge Agreement" means the Pledge Agreement date _________________,
199 ___, between Borrower and Bank, securing the Obligations.
"Prime Rate" means the rate of interest per annum announced to be its
prime rate from time to time by bank at its principal office in Cincinnati,
Ohio whether or not Bank will at times lend to borrowers at lower rates of
interest or, if there is no such prime rate, then its base rate or such
other rate as may be substituted by Bank for the prime rate.
"Tangible Net Worth" means the total of the capital stock (less
treasury stock), paid-in surplus, general contingency reserves and retained
earnings (deficit) of Borrower and any Subsidiary as determined on a
consolidated basis in accordance with generally accepted accounting
principles, after eliminating all inter-company items and all amounts
properly attributable to minority interests, if any, in the stock and
surplus of any Subsidiary, minus the following items (without duplication of
deductions) if any, appearing on the consolidated balance sheet of Borrower:
(i) all deferred charges (less amortization, unamortized debt
discount and expense and corporate organization expenses);
(ii) the book amount of all assets which would be treated as
intangibles under generally accepted accounting principles,
including, without limitation, such items as good-will, trademark
applications, trade names, service marks, brand names, copyrights,
patents, patent applications and licenses, and rights with respect
to the foregoing;
(iii) the amount by which aggregate inventories or aggregate
securities appearing on the asset side of such consolidated balance
sheet exceed the lower of cost or Market value (at the date of such
balance sheet) thereof; and
(iv) any subsequent write-up in the book amount of any asset
resulting from a Revaluation thereof from the book amount entered
upon acquisition of such asset.
ENTIRE AGREEMENT: The Borrower agrees that there are no conditions or
understandings which are not expressed in this note and the documents
referred to herein.
WAIVER: No failure on the part of Bank to exercise any of its rights
hereunder shall be deemed a waiver of any such rights or of any default.
Demand, presentment, protest and notice of dishonor, notice of default are
hereby waived. Borrower and all co-makers and accommodation makers of this
note, hereby waives all suretyship defenses including but not limited to all
defenses based upon impairment of Collateral and all suretyship defenses
described in Section 3-605 of the Uniform Commercial Code, as revised in 1990
(the "UCC"). Such waiver is entered to the full extent permitted by Section
3-05 (i) of the UCC.
JURY WAIVER: THE BORROWER AND ANY CO-MAKERS, ACCOMMODATION MAKERS, ENDORSERS
OR GUARANTORS HEREOF, WAIVE THE RIGHT TO A TRIAL BY JURY OF ANY MATTERS
ARISING OUT OF THIS NOTE OR THE TRANSACTIONS CONTEMPLATED HEREBY. The
declaration of invalidity of any provision of this note shall not affect any
part of the remainder of the provisions.
This note is supplemented by the terms and conditions of an Addendum and
Note dated of even date herewith between the Borrower and Bank.
Warrant of attorney: The Borrower, jointly and severally, authorize any
attorney-at-law to appear in any court of record after maturity of this
note, whether acceleration or otherwise, to waive the issuance and service
of process and to confess judgment against them in favor of the Bank for the
principal sum due herein together with interest, charges, court costs and
attorney's fees, and to waive and release all errors, rights of appeal,
exemptions and stays of execution. The Borrower also agrees that the attorney
acting for the Borrower as set forth in this paragraph may be compensated by
bank for such services, and the Borrower waives any conflict of interest
caused by such representation and compensation arrangement. This warrant of
attorney to confess judgment shall be construed under the laws of the State
of Ohio.
WARNING - BY SIGNING THIS PAPER YOU GIVE UP YOUR RIGHT TO NOTICE AND COURT
TRIAL. IF YOU DO NOT PAY ON TIME A COURT JUDGMENT MAY BE TAKEN AGAINST YOU
WITHOUT YOUR PRIOR KNOWLEDGE AND THE POWERS OF A COURT CAN BE USED TO COLLECT
FROM YOU REGARDLESS OF ANY CLAIMS YOU MAY HAVE AGAINST THE CREDITOR WHETHER
FOR RETURNED GOODS, FAULTY GOODS, FAILURE ON HIS PART TO COMPLY WITH THE
AGREEMENT, OR ANY OTHER CAUSE.
DATE DUE: December 31, 1999 PEOPLES BANCORP, INC.
ADDRESS: P.O. Box 738 By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
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Marietta, Ohio 45750 Its: Chief Financial Officer & Treasurer
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Accepted and agreed this 11th day of May , 1998.
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THE FIFTH THIRD BANK
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Its: Assistant Vice President
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