EXHIBIT 10(b)
FIRST TENNESSEE
PROMISSORY NOTE
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Principal Loan Date Maturity Loan No. Call / Coll Account Officer Initials
$17,000,000.00 06-12-2003 06-12-2008 04AO / STKB
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References in the shaded area are for Lender's use only and do not limit the
applicability of this document to any particular loan or item.
Any item above containing "***" has been omitted due to text length limitations.
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Borrower: Peoples Bancorp Inc. (TIN: 31-0987416)
138 Putnam Street
Marietta, OH 45750
Lender: First Tennessee Bank National Association
Financial Institutions
845 Crossover Lane, Suite 150
Memphis, TN 38117
(901) 435-7972
Principal Amount: $17,000,000.00
Initial Rate: 2.790%
Date of Note: June 12, 2003
PROMISE TO PAY. Peoples Bancorp Inc. ("Borrower") promises to pay to First
Tennessee Bank National Association ("Lender"), or order, in lawful money of the
United State of America, the principal amount of Seventeen Million & 00/100
Dollars ($17,000,000.00), together with interest on the unpaid principal balance
from June 12, 2003, until paid in full.
PAYMENT. Subject to any payment changes resulting from changes in the index.
Borrower will pay this loan in 4 principal payments of $1,700,000.00 each and
one final principal and interest payment of $10,272,726.00 Borrower's first
principal payment is due June 13, 2004, and all subsequent principal payments
are due on the same day of each year after that. In addition, Borrower will pay
regular quarterly payments of all accrued unpaid interest due as of each
payment date, beginning September 13, 2003, with all subsequent interest
payments to be due on the same day of each quarter after that. Borrower's final
payment due June 13, 2008, will be for all principal and all accrued interest
not yet paid. Unless otherwise agreed or required by applicable law, payments
will be applied first to accrued unpaid interest, then to principal, and any
remaining amount to any unpaid collection costs. The annual interest rate for
this Note is computed on a 365/360 basis; that is, by applying the ratio of the
annual interest rate over a year of 360 days, multiplied by the outstanding
principal balance, multiplied by the actual number of days the principal
balance is outstanding. Borrower will pay Lender at Lender's address shown
above or at such other place as Lender may designate in writing.
VARIABLE INTEREST RATE. The interest rate on this Note is subject to change from
time to time based on changes in an Independent Index which is the "Index" being
the London Interbank Offering Rate ("LIBOR Rate") of interest for an interest
period of three (3) months as reported in The Wall Street Journal published on
the Initial Pricing Date and on each interest Rate Change Date. Each change in
the interest rate which results from a change in the LIBOR Rate shall become
effective, without notice to the undersigned, on each Interest Rate Change Date;
provided, however, that if The Wall Street Journal is not published on such
date, the LIBOR Rate shall be determined by reference to The Wall Street Journal
last published immediately preceding such date. The three (3) month LIBOR Rate
published on March 24, 2003 (the "Initial Pricing Date") is 1.320% per annum
(the "Index"). The Index is not necessarily the lowest rate charged by Lender on
its loans. If the Index becomes unavailable during the term of this loan, Lender
may designate a substitute Index after notice to Borrower. Lender will tell
Borrower the current Index rate upon Borrower's request. The interest rate
change will not occur more often than each 24th day of every third month
beginning July 24, 2003, (the "Interest Rate Change Date"). Borrower understands
that Lender may make loans based on other rates as well. The Index currently is
1.290% per annum. The interest rate to be applied to the unpaid principal
balance of this Note will be at a rate of 1.500 percentage points over the
Index, resulting in an initial rate of 2.790% per annum. NOTICE: Under no
circumstances will the interest rate on this Note be more than the maximum rate
allowed by applicable law.
PREPAYMENT. Borrower may pay without penalty all or a portion of the amount owed
earlier than it is due. Early payments will not, unless agreed to by Lender in
writing, relieve Borrower of Borrower's obligation to continue to make payments
of accrued unpaid interest. Rather, early payments will reduce the principal
balance due. Borrower agrees not to send Lender payments marked "paid in full",
"without recourse", or similar language. If Borrower sends such a payment,
Lender may accept it without losing any of Lender's rights under this Note, and
Borrower will remain obligated to pay any further amount owed to Lender. All
written communications concerning disputed amounts, including any check or other
payment instrument that indicates that the payment constitutes "payment in full"
of the amount owed or that is tendered with other conditions or limitations or
as full satisfaction of a disputed amount must be mailed or delivered to: First
Tennessee National Association, Financial Institutions, 845 Crossover Lane,
Suite 150, Memphis TN 38117.
INTEREST AFTER DEFAULT. Upon default, including failure to pay upon final
maturity, Lender, at its option, may, if permitted under applicable law,
increase the variable interest rate on this Note to 21.000% per annum. In no
event will the effective total interest rate on this Note be greater than the
rate permitted by applicable law.
DEFAULT. Each of the following shall constitute an event of default ("Event of
Default") under this Note:
PAYMENT DEFAULT. Borrower fails to make any payment when due under
this Note.
OTHER DEFAULTS. Borrower fails to comply with or to perform any other
term, obligation, covenant or condition contained in this Note or in
any of the related documents or to comply with or to perform any term,
obligation, covenant or condition contained in any other agreement
between Lender and Borrower.
DEFAULT IN FAVOR OF THIRD PARTIES. Borrower or any Grantor defaults
under any loan, extension of credit, security agreement, purchase or
sales agreement, or any other agreement, in favor of any other creditor
or person that may materially affect any of Borrower's property or
Borrower's ability to repay this Note or perform Borrower's obligations
under this Note or any of the related documents.
FALSE STATEMENTS. Any warranty, representation or statement made or
furnished to Lender by Borrower or on Borrower's behalf under this Note
or the related documents is false or misleading in any material
respect, either now or at the time made or furnished or becomes false
or misleading at any time thereafter.
INSOLVENCY. The dissolution or termination of Borrower's existence as a
going business, the insolvency of Borrower, the appointment of a
receiver for any part of Borrower's property, any assignment for the
benefit of creditors, any type of creditor workout, or the commencement
of any proceeding under any bankruptcy or insolvency laws by or against
Borrower.
CREDITOR OR FORFEITURE PROCEEDINGS. Commencement of foreclosure or
forfeiture proceedings, whether by judicial proceeding, self-help,
repossession or any other method, by any creditor of Borrower or by any
governmental agency against any collateral securing the loan. This
includes a garnishment of any of Borrower's accounts, including deposit
accounts, with Lender. However, this Event of Default shall not apply
if there is a good faith dispute by Borrower as to the validity or
reasonableness of the claim which is the basis of the creditor or
forfeiture proceeding and if Borrower gives Lender written notice of
the creditor or forfeiture proceeding and deposits with Lender monies
or a surety bond for the creditor or forfeiture proceeding, in an
amount determined by Lender, in its sole discretion, as being an
adequate reserve or bond for the dispute.
EVENTS AFFECTING GUARANTOR. Any of the preceding events occurs with
respect to any guarantor, endorser, surety, or accommodation party of
any of the indebtedness or any guarantor, endorser, surety, or
accommodation party dies or becomes incompetent, or revokes or disputes
the validity of, or liability under, any guaranty of the indebtedness
evidence by this Note. In the event of a death, Lender, at its option,
may, but shall not be required to, permit the guarantor's estate or
assume unconditionally the obligations arising under the guaranty in a
manner satisfactory to Lender, and, in doing so, cure any Event of
Default.
CHANGE IN OWNERSHIP. Any change in ownership of twenty-five percent
(25%) or more of the common stock of Borrower.
ADVERSE CHANGE. A material adverse change occurs in Borrower's
financial condition, or Lender believes the prospect of payment or
performance of this Note is impaired.
CURE PROVISIONS. If any default, other than a default in payment or
failure to satisfy Lender's requirement in the Insufficient Market
Value of Securities section is curable and if Borrower has not been
given a notice of a breach of the same provision of this Note within
the preceding twelve (12) months, it may be cured (and no event of
default will have occurred) if Borrower, after receiving written notice
from Lender demanding cure of such default: (1) cures the default
within fifteen (15) days; or (2) if the cure requires more than fifteen
(15) days, immediately initiates steps which Lender deems in Lender's
sole discretion to be sufficient to cure the default and thereafter
continues and completes all reasonable and necessary steps sufficient
to produce compliance as soon as reasonably practical.
LENDER'S RIGHTS. Upon default, Lender may declare the entire unpaid principal
balance on this Note and all accrued unpaid interest immediately due, and then
Borrower will pay that amount.
Any payment not made when due hereunder (whether by acceleration or otherwise)
shall bear interest after maturity at the maximum effective contract rate of
interest which the Lender may lawfully charge.
In the event of any renewal or extension of the loan indebtedness evidence
hereby, unless the parties otherwise agree to a lower rate, the Lender shall
have the right to charge interest at the highest of the following rates: (1) the
maximum rate permissible at the time the contract to make the loan was executed;
or (ii) the maximum rate permissible at the time the loan was made; (iii) the
maximum rate permissible at the time of such renewal or extension; or (iv) the
maximum rate permitted by applicable federal law; it being intended that those
statutes and laws, state or federal, from time to time in effect, which permit
the charging of the higher rate of interest shall govern the maximum rate which
may be charged hereunder. In the event that for any reason the foregoing
provisions hereof shall not contain a valid, enforceable designation of a rate
of interest prior to maturity or method of determining the same, then the
indebtedness hereby evidenced shall bear interest prior to maturity at the
maximum effective rate which may be lawfully charged by the Lender under
applicable law.
Regardless of any provision herein, or in any other document executed in
connection herewith, the holder hereof shall never be entitled to receive,
collect, or apply, as interest hereon, any amount in excess of the maximum
contract rate which may be lawfully charged by the holder hereof under
applicable law; and in the event the holder hereof ever receives, collects, or
applies as interest, any such excess, such amount which would be excessive
interest shall be deemed a partial prepayment of principal and treated hereunder
as such; and, if the principal hereof is paid in full, any remaining excess
shall forthwith be paid to the undersigned. In determining whether or not the
interest paid or payable, under any specific contingency, exceeds the maximum
lawful contract rate, the undersigned and the holder hereof shall, to the
maximum extent permitted by applicable law, (a) characterize any non-principal
payment as a reasonable loan charge, rather than interest; (b) exclude voluntary
prepayments and the effect thereof; and (c) amortize, prorate, allocate, and
spread, in equal parts, the total amount of interest throughout the entire
contemplated term hereof, so that the interest accrued or to accrue throughout
the entire term contemplated hereby shall at no time exceed the maximum lawful
contract rate.
ATTORNEYS' FEES; EXPENSES. Lender may hire or pay someone else to help collect
this note if Borrower does not pay. Borrower will pay Lender that amount. This
includes, subject to any limits under applicable law, Lender's attorneys' fees
and Lender's legal expenses, whether or not there is a lawsuit, including
attorneys' fees, expenses for bankruptcy proceedings (including efforts to
modify or vacate any automatic stay of injunction), and appeals. If not
prohibited by applicable law, Borrower also will pay any court costs, in
addition to all other sums provided by law.
JURY WAIVER. Lender and Borrower hereby waive the right to any jury trial in any
action, proceeding, or counterclaim brought by either Lender or Borrower against
the other.
DISHONORED ITEM FEE. Borrower will pay a fee to Lender of $29.00 if Borrower
makes a payment on Borrower's loan and the check or preauthorized charge with
which Borrower pays is later dishonored.
RIGHT OF SETOFF. To the extent permitted by applicable law, Lender reserves a
right of setoff in all Borrower's accounts with Lender (whether checking,
savings, or some other account). This includes all accounts Borrower may open in
the future. However, this does not include any IRA or Keogh accounts, or any
trust accounts for which setoff would be prohibited by law. Borrower authorizes
Lender, to the extent permitted by applicable law, to charge or setoff all sums
owing on the indebtedness against any and all such account, and, at Lender's
option, to administratively freeze all such accounts to allow Lender to protect
Lender's charge and setoff rights provided in this paragraph.
FINANCIAL STATEMENTS. The undersigned agrees to furnish a current financial
statement upon the request of Lender from time to time, and further agrees to
execute and deliver all other instruments and take such other actions as Lender
may from time to time reasonably request in order to carry out the provisions
and intent hereof.
LATE FEE. For any payment which is not made within 20 days of the due date for
such payment, the Borrower shall pay a late fee, including without limitation
loans which are renewed more than 20 days after the due date even though the
renewal may be dated as of the past-due payment date. The late fee shall equal
the lesser of 5% of the unpaid portion of the past-due payment or $500.
ALTERNATIVE FUNDING. Lender may grant to any of its special purpose funding
vehicles (each an "SPC"), the option to provide all or any part of any loan the
Lender would otherwise be obligated to make pursuant to this Note. In no event
shall any SPC be committed to make any loan. The option granted to any SPC to
provide all or any part of any loan shall not alter the obligation of the Lender
to make loans pursuant to this Note. Each SPC shall be conclusively presumed to
have made arrangements with its Lender for the exercise of voting and other
rights hereunder in a manner which is acceptable to the SPC. Each party to this
Note agrees that no SPC shall be liable for any indemnity or similar payment
obligation under this Note (all liability for which shall remain with the
related Lender). Each party to this Note agrees (which Note shall survive the
termination of this Note) that it will not institute against, or join any other
person in instituting against, such SPC any Bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings or similar proceedings under
the laws of the United States or any State thereof prior to the date that is one
year and one day after the payment in full of all outstanding senior
indebtedness of any SPC. Each SPC, may, at any time, with notice to the Borrower
assign all or a portion of its interests in any loans to its Lender (or to any
other SPC of such Lender) or to any financial institutions providing liquidity
and/or credit facilities to or for the account of such SPC for the following
purposes: (i) to fund the loans made by such SPC or (ii) to support the
securities (if any) issued by such SPC to fund such loans. In addition, each SPC
may, at any time, with notice to and consent of the Borrower, disclose on a
confidential basis any non-public information relating to its loans to any
rating agency, commercial paper dealer or provider of a surety, guarantees or
credit or liquidity enhancement to such SPC. This Section may not be amended
without the consent of all SPC's then designated to the Borrower in accordance
with the foregoing provisions of this Section.
EXCLUSION FROM INDEBTEDNESS. Excluded from Indebtedness shall be any
Indebtedness governed by the Federal Truth in Lending Act.
COLLATERAL. Borrower acknowledges this Note is secured by the following
collateral described in the security instrument listed herein, all terms and
conditions of which are hereby incorporated and made a part of this Note:
securities or investment property described in a Commercial Pledge Agreement
dated June 12, 2003.
LINE OF CREDIT. This Note evidences a straight line of credit. Once the total
amount of principal has been advanced, Borrower is not entitled to further loan
advances. Advances under this Note may be requested either orally or in writing
by Borrower or by an authorized person. Lender may, but need not, require that
all oral requests be confirmed in writing. All communications, instructions, or
directions by telephone or otherwise to Lender are to be directed to Lender's
office shown above. Borrower agrees to be liable for all sums other: (A)
advanced in accordance with the instructions of an authorized person or (B)
credited to any of Borrower's accounts with Lender. The unpaid principal balance
owing on this Note at any time may be evidenced by endorsements on this Note or
by Lender's internal records, including daily computer print-outs. Lender will
have no obligation to advance funds under this Note if: (A) Borrower or any
guarantor is in default under the terms of this Note or any agreement that
Borrower or any guarantor has with Lender, including any agreement made in
connection with the signing of this Note; (B) Borrower or any guarantor ceases
doing business or is insolvent; (C) any guarantor seeks, claims or otherwise
attempts to limit, modify or revoke such guarantor's guarantee of this Note or
any other loan with Lender; or (D) Borrower has applied funds provided pursuant
to this Note for purposes other than those authorized by Lender.
CHANGE IN INDEX. Notwithstanding any other provisions herein, if any Change in
Law (as hereafter defined) shall make it unlawful for the Lender to make or
maintain a LIBOR Rate loan as contemplated by this Note, the principal
outstanding hereunder shall, if required by law and if the Lender so requests,
be converted on the date required to make the loan evidenced by this Note legal
to a loan according interest at the lesser of the Maximum Rate or the base
commercial rate of interest ("Base Rate") established from time to time by the
Lender. Each change in the Base Rate shall become effective, without notice to
the undersigned, on the same date that the Base Rate changes. The undersigned
hereby agrees promptly to pay the Lender, upon demand, any costs incurred by the
Lender in making any conversion in accordance with this paragraph, including any
interest or fees payable by the Lender to lenders of funds obtained by it in
order to maintain its LIBOR Rate loans.
INDEMNITY. The undersigned hereby indemnifies the Lender and holds the Lender
harmless from any loss or expense which the Lender may sustain or incur as a
consequence of (i) a default by the undersigned in payment of the principal
amount of or interest on the loan evidenced hereby, including any such loss or
expense arising from interest or fees payable by the Lender to lenders of funds
obtained by it in order to make or maintain its LIBOR Rate loans, or (ii) a
Change in Law that results in the imposition on the Lender of reserve
requirements in connection with LIBOR Rate loans made by the Lender. The
undersigned will make any payments under this indemnity to Lender, upon demand.
The undersigned further agrees to enter into a modification of this Note, at the
request of the Lender, to bring this Note into compliance with any Change in
Law.
CHANGE IN LAW. "Change in Law" shall mean the adoption of any law, rule,
regulation, policy, guideline or directive (whether or not having the force of
law) or any change therein or in the interpretation or application thereof, in
all cases by Government Authority having jurisdiction over the Lender, in each
case after the date hereof.
GOVERNMENTAL AUTHORITY. "Governmental Authority" shall mean any nation or
government, any state or other political subdivision thereof and any entity
exercising regulatory function of or pertaining to government.
SUCCESSOR INTERESTS. The terms of this Note shall be binding upon Borrower, and
upon Borrower's heirs, personal representatives, successors and assigns, and
shall inure to the benefit of Lender and its successors and assigns.
GENERAL PROVISIONS. Lender may delay or forgo enforcing any of its rights or
remedies under this Note without losing them. Borrower and any other person who
signs, guarantees or endorses this Note, to the extent allowed by law, waive
presentment, demand for payment, and notice of dishonor. Upon any change in the
terms of this Note, and unless otherwise expressly stated in writing, no party
who signs this Note, whether as maker, guarantor, accommodation maker or
endorser, shall be released from liability. All such parties agree that Lender
may renew or extend (repeatedly and for any length of time) this loan or release
any party or guarantor or collateral; or impair, fail to realize upon or perfect
Lender's security interest in the collateral; and take any other action deemed
necessary by Lender without the consent of or notice to anyone. All such parties
also agree that Lender may modify this loan without the consent of or notice to
anyone other than the party with whom the modification is made. The obligations
under this Note are joint and several.
PRIOR TO SIGNING THIS NOTE, BORROWER READ AND UNDERSTOOD ALL THE PROVISIONS OF
THIS NOTE, INCLUDING THE VARIABLE INTEREST RATE PROVISIONS. BORROWER AGREES TO
THE TERMS OF THE NOTE.
BORROWER ACKNOWLEDGES RECEIPT OF A COMPLETED COPY OF THIS PROMISSORY NOTE.
BORROWER:
PEOPLES BANCORP INC.
By: /s/ Robert E. Evans
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Robert E. Evans, President of Peoples Bancorp Inc.
By: /s/ John W. Conlon
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John W. Conlon, Chief Financial Officer of
Peoples Bancorp Inc.