EXHIBIT 4
PLEDGE AGREEMENT
This PLEDGE AGREEMENT ("Agreement") is made this 18th day of March, 1997
by and between PEOPLES BANCORP INC., an Ohio corporation ("Pledgor"), and
FOUNTAIN SQUARE COMMERCIAL FUNDING CORP., a Delaware corporation ("Pledgee").
1. Definitions. "Obligations", as used herein, means all loans,
advances, indebtedness and other obligations of Pledgor to Pledgee and all
affiliates of Fifth Third Bancorp, of every kind and description whether now
existing or hereafter arising including without limitation those owed by
Pledgor to others and required by Pledgee 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 and indebtedness arising under the
Credit Agreement, between Pledgor and Pledgee, dated of even date herewith,
the $3,000,000 Term Note, dated of even date herewith, executed by Pledgor
and made to Pledgee, and all other instruments and agreements evidencing,
guarantying or securing any of the Obligations, and all Obligations to
perform or forbear from performing acts, all amounts represented by letters
of credit now or hereafter issued by Pledgee for the benefit of or at the
request of Pledgor, and all expenses and attorneys' fees incurred by Pledgee
under this Agreement or any other document or instrument related thereto or
related to any of the Obligations.
2. Pledge. Pledgor pledges, mortgages, assigns, transfers, delivers,
deposits, sets over and confirms as a first priority security interest to
Pledgee and its successors and assigns all of Pledgor's right, title and
interest in and to:
all outstanding common capital stock of The First National Bank of
Southeastern Ohio,
and all income, dividends and other distributions thereon and the proceeds
thereof (collectively, the "Interest"), as collateral security for payment
and performance by the Pledgor of the Obligations. All dividends and
distributions (in the form of cash, property, stock or other securities)
arising out of the Interest (collectively "Distributions") shall immediately
become subject to the lien and security interest of this Agreement and upon
acquisition of any such additional Interest, Pledgor agrees to deliver to
Pledgee, all documents evidencing the Interest and any additional
documentation requested by Pledgee to perfect and protect Pledgee's interest
therein.
All certificates evidencing the Interest are herewith delivered to the
Secured Party accompanied by assignments executed in blank.
3. Representations and Warranties. Pledgor respresents and warrants to
Pledgee that:
(a) Pledgor is the sole holder of record and sole beneficial owner of
the Interest, free and clear of any security interest, pledge, or other lien
or encumbrance (collectively "Lien");
(b) Pledgor has the right and requisite authority to pledge, mortgage,
assign, transfer, deliver, deposit, set over and confirm the Interest to
Pledgee as provided herein;
(c) Pledgor has obtained all necessary consents, approvals,
authorizations or orders of any person, corporation, partnership, trust,
governmental entity, or other entity required for the execution and delivery
of this Agreement or the delivery of the Interest to Pledgee as provided
herein; and
(d) there are no restrictions on the transfer of the Interest except as
set forth on the face of any certificate evidencing the Interest.
The representations and warranties set forth in this Section 3 shall
survive the execution and delivery of this Agreement.
4. Covenants. Pledgor covenants and agrees that until payment in full
of all of the Obligations:
(a) After the occurrence of an Event of Default (as defined in Section 5
below), Pledgee shall be entitled to all Distributions. Until paid, all
rights to such Distributions shall remain subject to the lien and security
interest of this Agreement. In the event that Pledgor receives any
Distribution after the occurrence of an Event of Default Pledgor shall notify
Pledgee thereof, hold such Distribution in trust for the benefit of Pledgee
and, if requested by Pledgee, shall immediately deliver such Distribution in
the form received by Pledgor. In the event that the Distribution is in the
form of a check or other instrument, Pledgor shall provide Pledgee with all
necessary endorsements thereon;
(b) Without the prior written consent of Pledgee, Pledgor will not
attempt to or further sell, assign, transfer, mortgage, pledge or otherwise
further encumber any of Pledgor's rights in or to the Interest or any unpaid
Distributions or xxxxx x Xxxx therein to any other party; and
(c) Pledgor will, at Pledgor's expense, obtain, execute, acknowledge and
deliver all such instruments and take all such action necessary (or as
Pledgee may from time to time request) in order to ensure Pledgee shall have
and retain the benefits of the first priority lien and security interest in
the Interest.
5. Remedies. (a) After the occurrence of a default or an Event of
Default under any of the Obligations (herein an "Event of Default"), Pledgee
is hereby authorized and empowered, at its election, to transfer and register
in its name or in the name of its nominee the whole or any part of the
Interest, to exercise the voting rights with respect thereto, to collect and
receive all Distributions made thereon, to sell in one or more sales after 7
days' notice (which notice Pledgor hereby agrees is commercially reasonable)
but without any previous notice or advertisement, the whole or any part of
the Interest and to otherwise act with respect to the Interest as though
Pledgee was the outright owner thereof, Pledgor hereby irrevocably constituting
and appointing Pledgee as the proxy and attorney-in-fact of Pledgor,
provided, however, the Pledgee shall not have any duty to exercise any such
right or to preserve the same and shall not be liable for any failure to do
so or for any delay in doing so. Any sale may be either for cash or upon
credit or for future delivery at such price as Pledgee may deem fair, and
Pledgee may be the purchaser of the whole or any part of the Interest so sold
and hold the same thereafter in its own right free from any claim of the
Pledgor or any right of redemption. Each sale shall be made to the highest
bidder, but Pledgee may reject any bid at such sale which, in its sole
discretion, it shall deem inadequate. Demands of performance, except as
otherwise herein specifically provided for, notices of sale, advertisements
and the presence of property at sale are hereby waived and any sale hereunder
may be conducted by an auctioneer or by any officer or agent of Pledgee.
(b) If, at the original time or times appointed for the sale of the
whole or any party of the Interest, the highest bid, if there be but one sale,
shall be inadequate to discharge in full all the Obligations, or if the
Interest by offered for sale in lots, if at any of such sales, the highest
bid for the lot offered for sale would indicate to Pledgee, in its
discretion, the likelihood that the proceeds of the sales of all of the
Interest will be insufficient to discharge all the Obligations, the Pledgee
may, on one or more occasions, postpone any of said sales by public
announcement at the time of sale or the time or previous postponement of
sale, an no other notice of such postponement of postponements of sale need
be given, any other notice being hereby waived; provided, however, that any
sale or sales made after such postponement shall be after 7 days' notice to
Pledgor. The Pledgee shall be authorized at any sale (if it deems it
advisable to do so) to restrict the prospective bidders or purchasers to
persons who represent and agree that they are purchasing the Interest for
their own account in compliance with Regulation D of the Securities Act of
1933 or any other applicable exemption under the Act.
(c) In the event of any sale(s) hereunder, Pledgee shall, after deduction
all costs or expenses of every kind (including, to the full extent permitted
by law, attorneys' fees and disbursements) for care, safekeeping, collection,
sale, delivery or otherwise, apply the residue of the proceeds of the sale(s)
to the payment or reduction, wither in whole or in part, of the Obligations
returning the surplus, if any, to Pledgor.
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(d) Pledgor agrees that it will not at any time plead, claim or take the
benefit of any appraisal, valuation, stay, extension, moratorium or
redemption law now or hereafter in force in order to prevent or delay the
enforcement of this Agreement, or the absolute sale or transfer to Pledgee
of the whole or any part of the Interest or the possession thereof by any
purchaser at any sale hereunder, and Pledgor waives the benefit of all such
laws. Pledgor agrees that it will not interfere with any right, power and
remedy of Pledgee provided for in this Agreement or now or hereafter existing
at law or in equity or by statute or otherwise, or beginning of the exercise
by Pledgee of any one or more of such rights, powers or remedies. No failure
or delay on the part of Pledgee to exercise any such rights, power or remedy
and no notice or demand which may be given to or made upon Pledgor by Pledgee
with respect to any such remedies shall operate as waiver hereof, or limit or
impair Pledgee's right to take any action or to exercise any power or remedy
hereunder, without notice or demand, or prejudice its rights as against
Pledgor in any respect.
6. Waiver. No delay on Pledgee's part in exercising any power of sale,
lien, option or other right hereunder, and no notice or demand which may be
given to or made upon Pledgor by Pledgee with respect to any power of sale,
lien, option or other right hereunder, shall constitute a waiver thereof, or
limit or impair Pledgee's right to take any action or to exercise any power
of sale, lien option, or any other right hereunder without notice or demand,
or prejudice Pledgee's rights as against Pledgor in any respect. In addition,
no action taken by Pledgee hereunder shall in any way impair or limit
Pledgee's right to exercise any or all rights or remedies Pledgee may
otherwise have against Pledgor with respect to any Obligations. This
Agreement shall not, in any manner, be construed as a compromise of any
Obligations except to the extent that a Distribution is applied to reduce the
Obligations and then only to the extent and in the amount of such
Distribution actually received by Pledgee. This is an absolute, unconditional
and continuing pledge and will remain in full force and effect until the
Obligations have been fully paid to the Pledgee. This pledge will extend to
and cover renewals of the Obligations and any number of extensions of time
for payment thereof and will not be affected by any surrender, exchange,
acceptance or release by the Pledgee of any other pledge or any security held
by it for any of the Obligations. Notice of acceptance of this pledge, notice
of extensions of credit to the Pledgor from time to time, notice of default,
diligence, presentment, protest, demand for payment, notice of demand or
protest, and any defense based upon a failure of Pledgee to comply with the
notice requirements of the applicable version of Uniform Commercial Code
Section 9-504 are hereby waived. Pledgee, at any time and from time to time,
without consent of Pledgor, may change the manner, place or terms of payment
of or interest rates on, or change or extend the time of payment of, or renew
or alter, any of the Obligations, without impairing or releasing the
liabilities of Pledgor hereunder. Pledgee in its sole discretion may
determine the reasonableness of the period which may elapse prior to the
making of demand for any payment upon the Pledgor or any guarantor and it
need not pursue any of its remedies against any other party before having
recourse against Pledgor under this pledge.
7. Indemnification. Pledgor agrees to indemnify and hold the Pledgee
harmless from and against any taxes, liabilities, claims and damages,
including reasonable attorney's fees and disbursements, and other expenses
incurred or arising by reason of the taking or the failure to take action by
Pledgee, in good faith, under this Agreement and in respect of any
transactions effected in connection with this Agreement, including without
limitation, any taxes payable in connection with the delivery or registration
of the Interest as provided herein. The obligations of Pledgor under this
Section shall survive the termination of this Agreement.
8. Miscellaneous. This Agreement shall be binding upon Pledgor and
Pledgor's heirs, administrators, successors and assigns, and shall inure to
the benefit of, and be enforceable by, the Pledgee and its successors,
transferees and assigns. None of the terms or provisions of this Agreement
may be waived, altered, modified or amended except in writing duly signed for
and on behalf of the Pledgee and the Pledgor.
9. Governing Law. All acts and transactions hereunder and the rights
and obligations of the parties hereto shall be governed, construed and
interpreted in accordance with the domestic laws of the State of Pledgee's
principal place of business.
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10. Jury Waiver. PLEDGOR AND PLEDGEE HEREBY WAIVE THE RIGHT TO TRIAL BY
JURY OF ANY MATTERS ARISING OUT OF THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY.
Dated this 18th day of March, 1997.
PLEDGOR:
PEOPLES BANCORP INC.
By: Xxxx X. Xxxxxx
-----------------------------------
Its: Chief Financial Officer
----------------------------------
PLEDGEE:
FOUNTAIN SQUARE COMMERCIAL FUNDING CORP.
By: -----------------------------------
Its: ------------------------------------
4
OHIO AFFILIATES
A FIFTH THIRD BANCORP BANK
Amended and Restated 2
Note: Retain Customer Copy for your records Revolving
Note
OFFICER NO 90-new NOTE NO. 95848900018
-------------------- -----------
$3,000,000.00 March 18, 1997
------------------------------- -------- --
City Cincinnati State OH (Effective Date)
--------- --
On or before the Due Date below, the undersigned a (check one) /X/ corporation
/ / partnership / / individual / / limited liability company, for value
received and if more than one, jointly and severally, promise to pay to the
order of The Fifth Third Bank, 00 Xxxxxxxx Xxxxxx Xxxxx, Xxxxxxxxxx, XX
--------------------------------------------------------------
(Name and Address of Bank)
(hereinafter referred to as "Bank") the sum of three million and 00/100 --------
---------------------------------
Dollars (hereinafter referred to as the "Borrowing") plus interest as
provided herein, less such amounts as shall have been repaid in accordance
with this note. The outstanding balance of this note will appear on a
supplemental bank record and is not necessarily the face amount of this note.
Such record shall be conclusive as to the balance due of this note at any
time.
The principal sum outstanding shall bear interest per annum at the rate of 0%
-
greater than the "Prime Rate" (the rate announced by the Bank from time to
time) on the above Effective Date. In the event of a change in said Prime
Rate, the rate of this note shall be changed immediately to that ratio which
shall be greater than the new Prime Rate by the amount stated in this clause.
Interest shall be computed based on a year of 360 days and charged for the
actual number of days elapsed.
Prior to the due Date, Bank may (but is not obligated to) lend to the
undersigned such amounts as may from time to time be requested by the
undersigned provided that the principal amount borrowed shall not at any time
exceed the Borrowing and further provided that no Event of Default as defined
herein shall exist.
Principal shall be due and payable: / / At Maturity: /X/ In Installments in
the amount of $150,000 shall be due the 1st day of each / / Month /X/ Six
------- ---
Months beginning January 2, 1998 with a final payment on January 2, 2003 of
--------- -- --------- ----
the principal amount then owing plus all interest due therein. Principal and
interest payments shall be made at Bank's address above unless otherwise
designed to Bank in writing. Interest shall be due and payable: / / At
Maturity: /X/ On the 1st day of each / / Month /X/ 6 months beginning
---
July 1, 1997.
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To secure repayment of this note and all modifications, extensions and
renewals thereof, and all other obligations (as herein defined) of the
undersigned to Bank, the Undersigned grants Bank a security interest in all
of the undersigned's now owned or hereafter acquired interests in all
property in which Bank is, at any time, granted a lien for any Obligation,
and all property in possession of 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 or 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 undersigned
agrees to immediately deliver such additional dividend warrants, securities
or other property of rights thereto to Bank immediately upon receipt as
additional Collateral and until delivery to hold same same in trust for bank.
The undersigned 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:
16,000 shares of Common Stock of The First National Bank of Southeastern Ohio
-----------------------------------------------------------------------------
The Obligations secured by the Collateral (herein, the "Obligations") shall
include this note and each and every liability of the undersigned 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 by the undersigned. The
undersigned also grants Bank a security interest in all of the Collateral as
agent for all affiliates of Fifth Third Bancorp for all Obligations of the
undersigned to such affiliates. Said security interest shall not be enforced
to the extent prohibited by the Truth in Landing Act as implemented by
Federal Reserve Regulation Z.
The undersigned 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 undersigned 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 undersigned to 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 Obligation of the undersigned, or a default in the Obligations under
any security documents.
(2) The death or dissolution of the undersigned, of any endorser or
guarantor, or if the undersigned 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 a lien to Bank) or the issuance of an
attachment against or seizure of any of the property of, or the entry of a
judgment against, the undersigned.
(5) In the Judgment of Bank, any adverse change occurs in the ability of the
undersigned to [copy illegible from this point on]
FOUNTAIN SQUARE COMMERCIAL FUNDING CORP.
Uncommitted Note
$3,000,000 NOTE No. ----------------
Cincinnati, Ohio March 18, 1997
(Effective Date)
On or before the Due Date below, PEOPLES BANCORP INC., an Ohio corporation
(hereinafter referred to as "Borrower") for value received, and if more than
one, jointly and severally, promise to pay to the order of FOUNTAIN SQUARE
COMMERCIAL FUNDING CORP., a Delaware corporation, whose address is c/o The
Fifth Third Bank, 00 Xxxxxxxx Xxxxxx Xxxxx, Xxxxxxxxxx, Xxxx 00000
(hereinafter referred to as "Lender") the sum of THREE MILLION DOLLARS
($3,000,000) (hereinafter referred to as the "Borrowing") plus interest as
provided herein, less such amounts as shall have been repaid in accordance
with this note. The outstanding balance of this note will appear on a
supplemental bank record and is not necessarily the face amount of this note.
Such record shall be conclusive as to the balance due of this note at any
time.
The principal sum outstanding shall bear interest per annum at the rate or
rates agreed to by Lender and Borrower from time to time as set forth on the
Addendum to Note attached hereto. Interest shall be computed based on a year
of 360 days and charged for the actual number of days elapsed.
Prior to the Due Date, Lender may (but is not obligated to) lend the borrower
such amounts as may from time to time be requested by the Borrower provided
that the principal amount borrowed shall not at any time exceed the Borrowing
and further provided that no Event of Default as defined herein shall exist.
Principal and interest shall be paid as set forth on the Addendum attached
hereto or as agreed between Lender and Borrower from time to time. Principal
and interest payments shall be made at Lender's address above unless
otherwise designated by Lender in writing.
To secure repayment of this note and all modifications, extensions and
renewals thereof, and all other Obligations (as herein defined) of the
Borrower to Lender, the Borrower grants Lender a security interest in all of
the Borrower's, now owned or hereafter acquired interests in all property in
which Lender is at any time, granted a lien for any Obligation, and all
property in possession of Lender including, without limitation, money,
securities, instruments, documents, letters of credit, chattel paper, or
other property delivered to Lender 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 Lender 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 Lender immediately upon
receipt as additional Collateral and until delivery to hold same in trust for
Lender. The Borrower agrees that the Lender 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:
a Pledge Agreement, dated of even date herewith, between Borrower and Lender,
pledging to Lender all outstanding shares of common capital stock of The
First National Bank of Southeastern Ohio.
The Obligations secured by the Collateral (herein, the "Obligations") shall
include this note and each and every liability of the Borrower jointly or
severally to Lender 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 Lender of this note shall not
effectuate a payment but rather a continuation of the previous Obligation.
Lender may charge that the Borrower agrees to pay on the above Effective
Date, a note processing fee in an amount determined by Lender.
Events of Default:
This note, and all other Obligations of the Borrower to Lender, shall be
and become immediately due and payable at the option of the Lender, 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 Obligation 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, or 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 Lender current financial information upon
request.
4) The creation of any lien (except a lien to Lender) or the issuance of an
attachment against or seizure of any of the property of, or the entry
of judgment against, the Borrower.
5) [Illegible] ny adverse change in the ability of the Borrower to
repay the
as itself insecure.
6) [Illegible] f the creditors of, or the commencement of any
bankruptcy, receivership,
liquidation proceedings by or against the Borrower
or any endorser or
7) [Illegible] nt proceedings by attachment, levy or otherwise,
against any Collateral, any
ny property deposited with the Lender by the Borrower
or any endorser or
8) [Illegible] security and the Borrower has not furnished
satisfactory additional security
on demand.
9) The occurrence of an Event of Default under any indebtedness of any kind
of Borrower owed to The Fifth Third Bank or any wholly-owned
subsidiaries of Fifth Third Bancorp.
Upon the occurrence of an Event of Default herein described Lender may,
at its 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
prepayment premiums, fees, and charges.
In addition to any other remedy permitted by law, the Lender may at any
time, without notice, apply the Collateral to this note or such other
Obligations, whether due or not, and Lender 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 Lender, Lender, in the Event of Default, is (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) is 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 Lender 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,
Lender may apply, at it 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 Lender, after such application and
the return of any surplus, the Borrower
-2-
agrees to be and remains liable to Lender for any and every deficiency after
application as foresaid upon this and any other Obligation. The Borrower
shall pay all costs of collection incurred by Lender, including its attorney's
fees, if this note is referred to an attorney for 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, Borrower agrees to pay to Lender a late payment
fee as provided for in any loan agreement or 5% of the payment amount,
whichever is greater with a minimum fee of $20.00. After an Event of Default,
the Borrower agrees to pay to Lender a fixed charge of $25.00, or the
Borrower agrees that Lender 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.
The Borrower may prepay all or part of this note, which prepaid amounts shall
be applied to the amounts due in reverse order of their due dates. Upon such
prepayments, including involuntary prepayment by acceleration, the Borrower
shall pay a premium of 2% of the maximum principal amount permitted under
this note. Partial prepayments shall not excuse and subsequent payment due.
ENTIRE AGREEMENT: The Borrower agrees that there are no [copy illegible] ch
are not expressed in this note and the documents referred to herein.
WAIVER: No failure on the part of Lender to exercise any of its righ
[copy illegible] iver of any such rights or of any default. Demand,
presentment, protest and noti [copy illegible] d notice of default are
hereby waived. Each of the Borrower, including but not [copy illegible]
mmodation makers of this note, hereby waives all suretyship defenses includin
[copy illegible] ased 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 3-605 (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 to Note
dated of even date herewith between the Borrower and Lender.
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 by acceleration or otherwise, to waive the issuance and service of
process and to confess judgment against them in favor of the Lender 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
Lender 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.
-3-
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 January 2, 2003 PEOPLES BANCORP INC.
---------------------------
ADDRESS 000 Xxxxxx Xxxxxx By: /s/ Xxxx X. Xxxxxx
--------------------------- --------------------------
Xxxxxxxx, XX 00000
--------------------------- Its: Chief Financial Officer
--------------------------
Accepted and agreed this 7th day of January, 0000
XXXXXXXX XXXXXX XXXXXXXXXX FUNDING CORP.
By:
-----------------------------------------
Its:
-----------------------------------------
4
ADDENDUM TO
$3,000,000 UNCOMMITTED NOTE
FROM
PEOPLES BANCORP, INC.
TO
FOUNTAIN SQUARE COMMERCIAL FUNDING CORP.
THIS ADDENDUM is intended to be attached to, and the provisions hereof
are hereby incorporated into that certain Uncommitted Note, dated March 18,
1997, in the principal amount of $3,000,000 (the "Note"), executed by
PEOPLES BANCORP INC., an Ohio corporation (the "Borrower") and made payable
to FOUNTAIN SQUARE COMMERCIAL FUNDING CORP., a Delaware corporation (the
"Lender"). The Borrower and the Lender agree that the terms of the note shall
be amended and supplemented by the following:
1. UNCOMMITTED LOANS
(a) AMOUNT. Subject to the terms and conditions hereof, Lender may make
extensions of credit (the "Loans") to Borrower at Borrower's request from
time to time during the term hereof, whereby the total aggregate amount of
Loans under all types of extensions of credit herein shall not exceed
$3,000,000. Borrower may from time to time request Loans from Lender up to a
total aggregate principal amount of $3,00,000 at any one time outstanding
(the "Uncommitted Facility") and which shall be evidenced by this Note.
(b) UNCOMMITTED FACILITY. THIS IS AN UNCOMMITTED FACILITY AND
NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN OR ANY COURSE OF DEALING
BETWEEN LENDER AND BORROWER, THE DECISION AS TO WHETHER OR NOT TO MAKE ANY
LOANS SHALL BE IN LENDER'S SOLE AND ABSOLUTE DISCRITION.
(c) NOTICE. Borrower must give Lender written or telephonic notice of
its intention to borrower under this Note, as hereinafter provided.
(d) BORROWING. Each Loan shall be in the minimum principal sum of
$500,000. Borrower agrees to repay Lender on the date then due each Loan now
or hereinafter made by Lender to Borrower, together with interest thereon at
the agreed rate. Interest on all Loans shall be computed on the basis of a
360-day year for the actual number of days elapsed.
(e) PROCEDURES. Each request by Borrower for a Loan will be made by
telephone prior to 11:00 A.M., Cincinnati, Ohio time on any Business Day on
which a Loan is requested. Lender will, if Loans are then available to
Borrower, quote Borrower the interest rate based on the maturity requested by
Borrower. Borrower shall, at the time of quote, either accept or reject the
quote, and if accepted, Lender will credit Borrower's account for the amount
of the Loan or otherwise disburse the proceeds as agreed upon between
Borrower and Lender. The amount of the interest rat eon and the maturity date
of each Loan shall be evidenced by the ledgers and records (including
computer records) of Lender, which, in the case of a dispute, shall be
conclusive except for manifest error. The Borrower shall provide Lender with
a list of those persons authorized to orally request Loan advances under this
Agreement. Lender may rely on such list until amended in writing by Borrower.
(f) INTEREST RATE. All Loans shall bear interest at a rate agreed
between Lender and Borrower. The interest rate quoted by Lender on all Loans
shall be a fixed rate. Borrower shall have no right to prepay any Loan prior
to the agreed maturity date of such Loan.
(g) REPRICING. Each Loan shall be for a term agreed to between Lender
and Borrower, however, each Loan shall have a minimum term of at least 15
days and shall have a maturity no greater than 270 days. Each Loan, together
with interest thereon, shall be repaid in immediately available funds at the
main office of Lender on the date agreed by Lender and Borrower. All
outstanding principal and all accrued and unpaid interest shall be paid in
full
-5-
on the maturity date of the Loan. In the event Borrower shall fail to pay
any Loan when due, all Loans outstandting to Borrower shall, at the option of
Lender, become immediately due and payable without presentment, demand,
protest, or notice of any kind.
(h) Prepayment. The Borrower may not prepay all or a portion of the
principal amount of any Loan in advance of the agreed upon dates of repayment.
(i) Term of Uncommitted Facility. The term of the Uncommitted Facility
will expire on July 1, 2002, and the Note will become payable in full on that
date (the "Maturity Date").
(j) Time of Payment. All payments of principal and interest made by
Borrower 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.
(k) Payments. All payments made hereunder shall be paid by either
Borrower instructing The Fifth Third Bank ("Fifth Third") to debit its
account at Fifth Third in the amount of the payment owed and transfer such
payment to Lender's account at Fifth Third or by wire transfer to Lender
pursuant to the following wire transfer instructions:
Account No. 0000000000
ABA No. 000000000
For credit to Fountain Square Commercial Funding Corp.
Reference: Peoples Bancorp Inc.
2. Costs. Borrower will pay to Lender its fees, costs and expenses
(including, without limitation, reasonable attorneys' fees, other
professionals' fees, appraisal fees, environmental assessment fees (including
Phase I and Phase II assessments), expert fees, court costs, litigation and
other expense (collectively, "Costs") incurred or paid by Lender in
connection with the negotiating, documenting, administering and enforcing the
Uncommitted Facility, the Loans and the defense, preservation and protection
of Lender'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 proceedings or otherwise. The Costs will be due and payable upon
demand by Lender. If Borrower fails to pay the Costs when upon such demand,
Lender is entitled to disburse such sums as an advance under the Uncommitted
Facility. Thereafter, the Costs will bear interest from the date incurred or
disbursed at the hightest 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.
3. Fifth Third Line of Credit. (a) As long as this Agreement shall
remain in effect, Borrower shall maintain a separate line of credit (the
"Fifth Third Facility") with The Fifth Third Bank _____________, in an
aggregate amount equal to the amount of the Uncommitted Facility. The
maximum amount of all outstanding amounts under the Fifth Third Facility and
the Uncommitted Facility shall not at any time exceed the maximum amount of
the Uncommitted Facility.
(b) Any Event of Default under the Fifth Third Facility shall be an
Event of Default under this Note.
(c) Borrower hereby irrevocably authorizes Lender, in Lender's sole
discretion, upon the occurrence of an Event of Default under this Note, to
request, on behalf of Borrower, an advance from Fifth Third under the Fifth
Third Facility in an amount sufficient to either cure any existing payment
Event of Default or to pay the outstanding amounts under the Uncommitted
Facility in full.
4. Bankruptcy. Borrower agrees that its will not institute against, or
join any other person in instituting against, Lender any bankruptcy,
reorganization, arrangement, insolvency or liquidation, or other proceeding
-6-
under any federal or state bankruptcy or similar law, for one year and a day
after the latest maturing commercial paper note issued by Lender is paid in
full.
-7-
5. Rating Agencies. At Lender's Option, Lender may, upon notice that
either Standard & Poor's Rating Services, a division of the McGraw Hill
Companies, Inc. or Xxxxx'x Investor Service, Inc. has (i) lowered or
downgraded its short term commercial paper or corporate bond or other short
term rating for Borrower, or (ii) placed Borrower's securities on a watch
list of securities singled out for surveillance, with either negative or
developing implications in a Ratings Category, amend the provisions hereof to
amend the maximum amount of the Uncommitted Facility as set forth in this
Addendum and amend the Maturity Date of the Uncommitted Facility set forth in
this Addendum.
6. Proceeds of Repayment. Each Loan shall be repaid on the date of
maturity agreed to by Borrower and Lender, in the ordinary course of business
out of the cash flow generated in the normal conduct and operations of
Borrower's business.
7. Conflicts. Any conflict between the provisions of this Addendum and
the terms of the Note, the terms of this Addendum shall control.
8. Counterparts. This Addendum may be executed by the parties in one
or more counterparts which shall be combined to create a single original
version hereof.
9. Warrant of Attorney. Borrower authorizes any attorney of record to
appear for it in any court of record in the State of Ohio, after an
Obligation becomes due and payable whether by its terms or upon default,
waives the issuance and service of process, releases all errors and rights of
appeal, and confesses a judgment against it in favor of the holder of such
Obligation, for the principal amount of such Obligation plus interest
thereon, together with court costs and attorneys' fees. Stay of Execution
and all exemptions are hereby waived. If an Obligation is referred to an
attorney for collection, and the payment is obtained without the entry of a
judgement, the obligors will pay to the holder of such Obligation its
attorneys' fees.
IN WITNESS WHEREOF, this Addendum to the Revolving Note was executed on
this 18th day of March, 1997.
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.
Peoples Bancorp Inc.
------------------------------
By: /s/Xxxx X. Xxxxxx
-------------------------------
Its: Chief Financial Officer
--------------------------------
Accepted and agreed this 18th day of March, 1997.
FOUNTAIN SQUARE COMMERCIAL FUNDING CORP.
By: ------------------------------
Its: ------------------------------
ADDENDUM
TO
REVOLVING NOTE
FROM
PEOPLES BANCORP INC.
TO
THE FIFTH THIRD BANK
THIS ADDENDUM is intended to be attached to, and the provisions hereof
are hereby incorporated into that certain Revolving Note, dated March 18,
1997, in the principal amount of $3,000,000 (the "Note"), executed by PEOPLES
BANCORP INC., an Ohio corporation (the "Borrower") and made payable to THE
FIFTH THIRD BANK, an Ohio corporation (the "Bank").
Section 1. Loans.
1.1 Reducing Revolving Credit Loans. (a) On the date hereof,
subject to the terms and conditions hereof, Bank hereby extends to Borrower a
line of credit facility (the "Facility") under which Bank may 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 $3,000,000. In addition to
payments of interest owed hereunder, the maximum amount of the Facility and
the principal available to Borrower shall be reduced by the amount of
$150,000 on January 2, 1998 and on the first (1st) business day of each July
and January thereafter during the term hereof. Borrower may borrow, prepay
(without penalty of charge), and reborrow under the Facility, provided that
the principal amount of all Revolving Loans outstanding at any one time under
the Facility will not exceed the foregoing limits. If the amount of
Revolving Loans outstanding at any time under the Facility exceeds the limits
set forth above, Borrower will immediately pay the amount of such excess to
Bank in cash. In the event Borrower fails to pay such excess, Bank may, in
its discretion, setoff such amount against Borrower's accounts at Bank. All
outstanding amounts of principal and all accrued and unpaid interest shall be
due and payable in full on January 2, 2003.
(b) Borrower will pay interest to Bank on the outstanding
principal amount of the Term Loan at a rate per anum equal to the interest
rate set herein. Interest will be payable in immediately available funds at
the principal office of Bank on the first (1st) day of each calendar month
during the term hereof. 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.
(c) The proceeds of the Revolving Loans will be used for general
working capital and to fund a portion of the purchase price of acquisitions
of the assets or stock of banks and/or savings and loan associations.
1.2 Prepayment. Borrower may prepay any portion of any of the Loan
in whole or in increments of $300,000 at any time without premium or
penalty. Any prepayments in advance of any amortized payments will be
applied to reduce the outstanding principal amount of such Loan in the
inverse chronological order of maturity.
1.4 Fee. On July 1, 1997, Borrower agrees to pay to Bank a one-time,
non-refundable loan fee in an amount equal to an amount equal to the product
of (a) .125% multiplied by (b) the positive difference between the
outstanding principal balance of the Term Loan as of July 1, 1997 minus
$1,430,000.
Section 2. Representations And Warranties.
Borrower hereby warrants and represents to Bank the following:
2.1 Organization and Qualification. Borrower is 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 the other Loan Documents, is qualified and licensed to do business in
each jurisdiction in which such qualification or licensing is required. All
ADDENDUM
TO
REVOLVING NOTE
FROM
PEOPLES BANCORP INC.
TO
THE FIFTH THIRD BANK
THIS ADDENDUM is intended to be attached to, and the provisions hereof
are hereby incorporated into that certain Revolving Note, dated March 18,
1997, in the principal amount of $3,000,000 (the "Note"), executed by PEOPLES
BANCORP INC., an Ohio corporation (the "Borrower") and made payable to THE
FIFTH THIRD BANK, an Ohio corporation (the "Bank").
Section I. Loans.
1.1. Reducing Revolving Credit Loans. (a) On the date hereof, subject to
the terms and conditions hereof, Bank hereby extends to Borrower a line of
credit facility (the "Facility") under which Bank may 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 $3,000,000. In addition to
payments of interest owed hereunder, the maximum amount of the Facility and
the principal available to Borrower shall be reduced by the amount of
$150,000 on January 2, 1998 and on the first (1st) business day of each July
and January thereafter during the term hereof. Borrower may borrow, prepay
(without penalty or charge), and reborrow under the Facility, provided that
the principal amount of all Revolving Loans outstanding at any one time under
the Facility will not exceed the foregoing limits. If the amount of Revolving
Loans outstanding at any time under the Facility exceeds the limits set forth
above. Borrower will immediately pay the amount of such excess to Bank in
cash. In the event Borrower fails to pay such excess, Bank may, in its
discretion, setoff such amount against Borrower's accounts at Bank. All
outstanding amounts of principal and all accrued and unpaid interest shall be
due and payable in full on January 2, 2003.
(b) Borrower will pay interest to Bank on the outstanding principal
amount of the Term Loan at a rate per annum equal to the interest rate set
herein. Interest will be payable in immediately available funds at the
principal office of Bank on the first (1st) day of each calendar month during
the term hereof. 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.
(c) The proceeds of the Revolving Loans will be used for general
working capital and to fund a portion of the purchase price of acquisitions
of the assets or stock of banks and/or savings and loan associations.
1.2 Prepayment. Borrower may prepay any portion of any of the Loan in
whole or in increments of $300,000 at any time without premium or penalty.
Any prepayments in advance of any amortized payments will be applied to
reduce the outstanding principal amount of such Loan in the inverse
chronological order of maturity.
1.4 Fee. On July 1, 1997, Borrower agrees to pay to Bank a one-time,
non-refundable loan fee in an amount equal to the product of (a) .00125%
multiplied by (b) the positive difference between the outstanding principal
balance of the Term Loan as of July 1, 1997 minus $1,430,000.
Section 2. Representations and Warranties.
Borrower hereby warrants and represents to Bank the following:
2.1 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 the other Loan Documents, is qualified and licensed to do business in
each jurisdiction in which such qualification or licensing is required. All
information provided to Bank with respect to Borrower and its operations is
true and correct.
2.2 Due Authorization. The execution, delivery and performance by
Borrower of the Pledge Agreement, the 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 on any assets of Borrower except the Lien granted to
Bank herein. Borrower has duly executed and delivered this Note, the Pledge
Agreement 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 the rights of creditors generally. No notice to or
consent by any governmental body is needed in connection with this
transaction.
2.3 Litigation. There are no suits or proceedings pending or threatened
against or affecting Borrower, and no proceedings before any governmental
body are pending or threatened against Borrower.
2.4 Margin Stock. No part of the Loan 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.
2.5 Business. Borrower is not a party to or subject to any agreement or
restriction which in the opinion of Borrower's management is so unusual or
burdensome that it might have a material adverse effect on Borrower's
business, properties or prospects.
2.6 Licenses, etc. Borrower has obtained any and all licenses, permits,
franchises, governmental authorizations, patents, trademarks, copyrights or
other rights necessary for the ownership of its properties and the
advantageous conduct of its business. Borrower possesses adequate licenses,
patents, patent applications, copyrights, trademarks, trademark applications,
and trade names to continue to conduct its business as heretofore conducted by
it, without any conflict with the rights of any other person or entity. All
of the foregoing are in full force and effect and none of the foregoing are
in known conflict with the rights of others.
2.7 Laws and Taxes. Borrower is in compliance with all laws,
regulations, rulings, orders, injunctions, decrees, conditions or other
requirements applicable to or imposed upon Borrower by any law or by any
governmental authority, court or agency. Borrower has filed all required tax
returns and reports that are now required to be filed by it in connection
with any federal, state and local tax, duty or charge levied, assessed or
imposed upon Borrower or its assets, including unemployment, social security,
and real estate taxes. Borrower has paid all taxes which are now due and
payable. No taxing authority has asserted or assessed any additional tax
liabilities against Borrower which are outstanding on the date of this Note,
and Borrower has not filed for any extension of time for the payment of any
tax or the filing of any tax return or report.
2.8 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.
2.9 Defaults. Borrower is in compliance with all material agreements
applicable to it and there does not now exist any default or violation by
Borrower of or under any of the terms, conditions or obligations of (a) its
Articles of Incorporation or Regulations/Bylaws, or (b) any indenture,
mortgage, deed of trust, franchise, permit, contract, agreement or other
instrument to which Borrower is a party or by which it is bound, and the
consummation
-2-
of the transactions contemplated by this Note will not result in such default
or violation.
Section 3. Negative Covenants.
3.1 Merger, Disposition of Assets. Borrower will not, without the prior
written consent of Bank, which consent shall not be unreasonably withheld,
(a) change its capital structure, (b) merge or consolidate with any
corporation, (c) amend or change its Articles of Incorporation or Code of
Regulations or (d) sell, transfer or otherwise dispose of all or any
substantial part of its assets, whether now owned or hereafter required.
3.2 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 any amount equal to 40% of Borrower's cumulative
earnings for each prior fiscal quarter of Borrower.
3.3 Loan Loss Reserve to Non-Performing Assets. Borrower will not
permit the ratio of (a) its Minimum Loan Loss Reserve, on a consolidated
basis (as shown on Borrower's quarterly and annual financial statements
delivered to Bank), to (b) its Non-Performing Assets (as shown on Borrower's
quarterly and annual financial statements delivered to Bank) to be less than
1.75 to 1.00 at any time during the term hereof.
3.4 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.
Section 4. Definitions.
4.1 "Collateral" shall mean all shares of common capital stock of First
National Bank of Southeastern Ohio.
4.2 "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.
4.3 "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.
4.4 "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.
4.5 "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 limitation, 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 and indebtedness arising under this Note and other Loan
Documents, all 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.
4.6 "Pledge Agreement" means the Pledge Agreement of even date herewith
between Borrower and Bank, securing the Obligations.
-3-
4.5 "Prime Rate" means that 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.
4.6 "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 interest, 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.
Section 5. Fountain Square Commercial Funding Corp.
5.1 Fountain Square Commercial Funding Corp. Indebtedness. Bank
acknowledges that Borrower has an existing loan facility with Fountain Square
Commercial Funding Corp. ("FSCFC"). Borrower agrees that the aggregate amount
of all indebtedness owed to FSCFC (the "FSCFC Indebtedness") and Bank shall
not exceed an aggregate amount of $3,000,000 at any time during the term
hereof. If the amount of such aggregate indebtedness does exceed such amount,
Borrower will repay the excess amount to Bank immediately in cash.
5.2 Advance to Repay FSCFC Indebtedness. Provided no Insolvency Event
has occurred, upon the occurrence of an Event of Default under the FSCFC
Indebtedness, Borrower hereby irrevocably instructs and authorizes Bank, upon
receipt of a request for an advance from FSCFC, to make an advance hereunder
to FSCFC in an amount sufficient to cure any payment Event of Default or to
repay the outstanding amount of the FSCFC Indebtedness in full. As used
herein, an "Insolvency Event" shall mean the filing by or against Borrower of
a petition in bankruptcy or other similar law, now or hereafter in effect.
5.3 Cross Default With FSCFC Indebtedness. The occurrence of an Event of
Default under the FSCFC Indebtedness shall be an Event of Default hereunder.
4
IN WITNESS WHEREOF, this Addendum to Term Note was executed on the 8th day of
April, 1994.
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.
PEOPLES BANCORP, INC.
By: /s/ Xxxx X. Xxxxxx
-------------------------
Its: Chief Financial Officer
-------------------------
5
