COMMERCIAL NOTE: TIME OR TERM SINGLE ADVANCE/PRIME/LIBOR
Amount City, State Date FOR BANK USE
$4,625,000.00 Indianapolis, September 23, ONLY
Indiana 1997
Obligor#
Tax I.D.#
Obligation#
Office
FOR VALUE RECEIVED, INDIANA UNITED BANCORP, an Indiana
corporation ("Borrower"), having its principal office at 201 N.
Broadway, Greensburg, Indiana 47240 hereby promised to pay to the
order of NATIONAL CITY BANK OF INDIANA ("Bank"), a national
banking association having its banking office at 101 W.
Washington Street, Indianapolis, Indiana 46255, at Bank's banking
office (or at such other place as Bank may from time to time
designate by written notice) in lawful money of the United States
of America, the principal sum of
FOUR MILLION SIX HUNDRED TWENTY-FIVE THOUSAND AND NO/100 DOLLARS
$4,625,000.00
together with interest, all as provided below.
1. Interest. The unpaid principal balance of this Note shall
at all times bear interest at a rate equal to the Contract Rate,
provided, that so long as any principal of or accrued interest on
this Note is overdue, all unpaid principal of this Note and all
overdue interest on that principal (but not interest on overdue
interest) shall bear interest at a fluctuating rate equal to two
percent (2%) per annum above the Prime Rate; provided further,
that in no event shall any principal of or interest on this Note
bear interest at any time after Maturity at a lesser rate than
the rate applicable thereto immediately after Maturity. The
"Contract Rate" shall at all times be a fluctuating rate equal to
fluctuating rate per annum (based upon a 365-day year and actual
days elapsed) equal to one-quarter of one percent (0.25%) below
the Prime Rate. At Borrower's option, all or any portion of the
Loan (in a minimum amount of $500,000 and $100,000 increments
thereafter), may bear interest at a fixed rate per annum (based
upon a 365-day year and actual days elapsed) equal to one and one-
half of one percent (1.5%) above LIBOR, for one (1), two (2),
three (3), six (6) or twelve (12) month interest periods.
Interest on this Note shall be payable in arrears on October 1,
1997, and on the first (1st) day of every third (3rd) month
thereafter, until five (5) years from the date of this Note, and
on demand thereafter, except that interest on each LIBOR Unit
shall be payable in arrears on the last day of the Contract
Period for that Unit, at Maturity, and on demand thereafter, and
in the case of any Contract Period having a term longer than
ninety (90) days, shall also be payable every three (3) months
after the first day of the Contract Period. The principal
comprising each LIBOR Unit shall, at the end of the Contract
Period for that Unit, become part of the Prime Rate Unit unless
and to the extent that Borrower shall have elected otherwise as
hereinbefore provided. Bank shall be entitled to fund and
maintain its funding of all or any part of any LIBOR Unit in any
manner Bank may from time to time deem advisable, Borrower hereby
acknowledging that all determinations relating to LIBOR Units
shall be made as if Bank had actually funded and maintained each
such Unit by the purchase of deposits in an amount similar to the
amount of that Unit, with a maturity similar to the Contract
Period for that Unit, and bearing interest at LIBOR with respect
to that Unit.
2. Ineffective Elections. Notwithstanding any provision or
inference to the contrary, Bank shall have the right in its
discretion, without notice to Borrower, to deem ineffective
Borrower's election of a Contract Rate if (a) at the time of that
election or on the first day of the Contract Period specified in
Borrower's notice thereof, there shall exist or there would occur
any Event of Default, (b) any representation, warranty, or other
statement (other than any expressly made as of a single date)
made by any Person (other than Bank) in any Related Writing
would, if made either as of the time of that election or as of
the first day of the Contract Period specified in Borrower's
notice thereof, by untrue or incomplete in any respect, (c) after
giving effect to that election, more than one Contract Rate would
be applicable to all or any part of any Unit, (d) Bank shall
determine that any governmental authority has asserted that it is
unlawful for Bank to fund, make, or maintain loans bearing
interest based on LIBOR, (e) after giving effect to that
election, the unpaid principal balance of this Note would, on the
first day of the Contract Period specified in Borrower's notice
of that election, be less than the then aggregate amount of all
LIBOR Units, (f) after giving effect to that election, the
aggregate amount of all principal payments scheduled to become
due at any one time during the Contract Period specified in
Borrower's notice of that election would exceed the amount of the
Prime Rate Unit at that time, or (g) the Contract Period
specified in Borrower's notice of that election would end after
the scheduled due date of the last principal payment under this
Note, giving effect to any prepayments. Moreover, Borrower shall
not be entitled to elect a Contract Rate if Bank shall determine
that (i) dollar deposits of the appropriate amount and maturity
are not available in the market selected by Bank for the purpose
of funding the relevant Unit at LIBOR, (ii) circumstances
affecting the market selected by Bank for the purpose of funding
the relevant Unit make it impracticable for Bank to determine
LIBOR, (iii) LIBOR is unlikely to adequately compensate Bank for
the cost of making, funding or maintaining the relevant Unit for
the Contract Period specified in Borrower's notice of that
election, or (iv) any governmental authority has asserted that it
is unlawful for Bank to fund, make, or maintain loans bearing
interest based on LIBOR. Bank's books and records shall be
conclusive (absent manifest error) as to whether Bank shall have
deemed any election of a Contract Rate ineffective. Except as
hereinbefore provided, there is no limit to the number of
Contract Rates that may be applicable to the unpaid principal
balance of this Note at any one time.
3. Premium: Ineffective Elections; Governmental Acts. If Bank
shall deem ineffective Borrower's election of any Contract Rate,
then, and in each such case, that election shall be ineffective
and Borrower shall pay to Bank, on Bank's demand, a premium based
on the amount of the Unit specified in Borrower's notice of that
election and computed for the Contract Period specified in that
notice at a rate per annum equal to the excess, if any, of the
Contract Rate so elected over the Reinvestment Rate. If Bank
shall determine that any governmental authority has asserted that
it is unlawful for Bank to fund, make, or maintain loans bearing
interest based on LIBOR, then, and in each such case,
notwithstanding any provision or inference to the contrary, the
principal comprising each then outstanding LIBOR Unit shall, upon
Bank's giving Borrower notice of that determination, be added to
and become part of the Prime Rate Unit, and Borrower shall
concurrently with the addition of that principal to the Prime
Rate Unit, pay to bank (a) the accrued interest on the principal
so added and (b) a premium based on the amount of the principal
so added and computed for the remainder of the Contract Period
therefor, at a rate equal to the excess, if any, of the Contract
Rate theretofore applicable over the Reinvestment Rate.
4. Repayment. Subject to section 7, the principal of this Note
shall be due and payable in ten (10) installments, commencing on
January 1, 1998, with the first installment being in the amount
of One Hundred Twenty-Five Thousand and No/100 Dollars
($125,000.00), and installments thereafter continuing to be due
and payable on the first (1st) day of every July and January
thereafter, with each such installment to be in a principal
amount equal to Five Hundred Thousand and No/100 Dollars
($500,000.00), until five (5) years from the date of this Note,
when the total outstanding balance of all unpaid principal and
interest shall be finally due and payable.
Borrower shall have the right to prepay the principal of this
Note in whole or in part, provided, that (a) each such prepayment
shall be in the principal sum of One Hundred Thousand and No/100
Dollars ($100,000.00) or any integral multiple thereof or an
amount equal to the then aggregate unpaid principal balance of
this Note, (b) each such prepayment shall be applied to the
installments of this Note in the inverse order of their
respective due dates, provided, however, so long as no Event of
Default has occurred and is continuing, and with written notice
from Borrower to Bank which accompanies payment, Borrower may
elect to have prepaid principal applied to installments of this
Note in the present order of their respective due dates, and (c)
concurrently with the prepayment of the entire unpaid principal
balance of this Note, Borrower shall pay the accrued interest on
the principal being prepaid.
Each prepayment of the principal of this Note may be made without
premium or penalty, provided, that if any LIBOR Unit is paid
(whether by way of a prepayment or a payment following any
acceleration of the due date thereof) in whole or in part before
the last day of the Contract Period for that Unit, then, and in
each such case, Borrower shall, concurrently with the payment,
pay to Bank (i) the accrued interest on the principal being
prepaid and (ii) a premium based on the principal amount paid and
computed for the period from the date of payment to the last day
of the Contract Period for that Unit at a rate per annum equal to
the excess, if any, of the Contract Rate theretofore applicable
over the Reinvestment Rate.
5. Definitions. As used in this Note, except where the
context clearly requires otherwise, "Affiliate" means, when used
with reference to any Person (the "subject"), a Person that is in
control of, under the control of, or under common control with,
the subject, the term "control" meaning the possession, directly
or indirectly, of the power to direct the management or policies
of a Person, whether through the ownership of voting securities,
by contract, or otherwise; "Bank Debt" means, collectively, all
Debt to Bank, whether incurred directly to Bank or acquired by it
by purchase, pledge, or otherwise, and whether participated to or
from Bank in whole or in part; "Banking Day" means any day (other
than any Saturday, Sunday or legal holiday) on which Bank's
banking office is open to the public for carrying on
substantially all of its banking functions; "Banking-Office Time"
means, when used with reference to any time, that time determined
at the location of Bank's banking office; "Contract Period"
means, relative to a Unit, a period selected by Borrower,
provided, that each Contract Period shall commence on a
Eurodollar Banking Day and end one (1) month, two (2) months,
three (3) months, six (6) months or twelve (12) months
thereafter, provided, that (a) if any Contract Period otherwise
would end on a day that is not a Eurodollar Banking Day, it shall
end instead on the next following Eurodollar Banking Day unless
that day falls in another calendar month, in which latter case
the Contract Period shall end instead on the next preceding
Eurodollar Banking day and (b) if any Contract Period commences
on a day for which there is no numerical equivalent in the
calendar month in which that Contract Period is to end, it shall
end on the last Eurodollar Banking Day of that calendar month;
"Debt" means, collectively, all obligations of the Person or
Persons in question, including, without limitation, every such
obligation whether owing by one such Person alone or with one or
more other Persons in a joint, several, or joint and several
capacity, whether now owing or hereafter arising, whether owing
absolutely or contingently, whether created by lease, loan,
overdraft, guaranty of payment, or other contract, or by quasi-
contract, tort, statute, other operation of law, or otherwise;
"Eurodollar Banking Day" means any Banking Day on which banks in
the London Interbank Market deal in United States dollar deposits
and on which banking institutions are generally open for domestic
and international business at the place where Bank's banking
office is located and in new York City; "LIBOR" means, with
respect to a Unit, the rate per annum (rounded upwards, if
necessary, to the next higher 1/16 of 1%) determined by Bank by
dividing (a) the rate per annum determined by Bank to equal the
average rate per annum at which deposits (denominated in United
States dollars) in an amount similar to that Unit and with a
maturity similar to the Contract Period for that Unit are offered
to Bank at 11:00 A.M. London time (or as soon thereafter as
practicable) two (2) Eurodollar Banking Days prior to the first
day of that Contract Period by banking institutions in any
Eurodollar market selected by Bank by (b) the difference of one
(1) less the Reserve Percentage; "LIBOR Unit" means a Unit for
which the Contract Rate is based on LIBOR; "Maturity" means the
date (whether occurring by lapse of time, acceleration, or
otherwise) upon which the last scheduled principal payment under
this Note is due; "Note" means this promissory note (including,
without limitation, each addendum, allonge, or amendment, if any,
hereto); "Obligor" means any Person who, or any of whose
property, shall at the time in question be obligated in respect
of all or any part of the Bank Debt of Borrower and (in addition
to Borrower) includes, without limitation, co-makers, indorsers,
guarantors, pledgors, hypothecators, mortgagors, and any other
Person who agrees, conditionally or otherwise, to make any loan
to, purchase from, or investment in, any other Obligor or
otherwise, to make any loan to, purchase from, or investment in,
any other Obligor or otherwise assure such other Obligor's
creditors or any of them against loss; "Person" means an
individual or entity of any kind, including, without limitation,
any association, company, cooperative, corporation, partnership,
trust, governmental body, or any other form or kind of entity;
"Prime Rate" means the fluctuating rate per annum which is
publicly announced from time to time by Bank as being it so-
called "prime rate" or "base rate" thereafter in effect, with
each change in the Prime Rate automatically, immediately, and
without notice changing the Prime Rate thereafter applicable
hereunder, it being acknowledged that the Prime Rate is not
necessarily the lowest rate of interest then available from Bank
on fluctuating-rate loans; "Prime Rate Unit" means, at any time,
the then aggregate unpaid principal balance of this Note for
which the Contract Rate is based on the Prime Rate; "Proceeding"
means any assignment for the benefit of creditors, any case in
bankruptcy, any marshalling of any Obligor's assets for the
benefit of creditors, any moratorium on the payment of debts, or
any proceeding under any law relating to conservatorship,
insolvency, liquidation, receivership, trusteeship, or any
similar event, condition, or other thing; "Reinvestment Rate"
means, when used with respect to any period, a per annum rate of
interest equal to the "bond equivalent yield" for the most
actively traded issues of U.S. Treasury Bills, U.S. Treasury
Notes, or U.S. Treasury Bonds for a term similar to the period in
question; "Related Writing" means this Note and any indenture,
note, guaranty, assignment, mortgage, security agreement,
subordination agreement, notice, financial statement, legal
opinion, certificate, or other writing of any kind pursuant to
which all or any part of the Bank Debt of Borrower is issued,
which evidences or secures all or any part of the Bank Debt of
Borrower, which governs the relative rights and priorities of
Bank and one or more other Persons to payments made by, or the
property of, any Obligor, which is delivered to Bank pursuant to
another such writing, or which is otherwise delivered to Bank
pursuant to another such writing, or which is otherwise delivered
to Bank by or on behalf of any Person (or any employee, officer,
auditor, counsel, or agent of any Person) in respect of or in
connection with all or any part of the Bank Debt of Borrower;
"Reporting Person" means each Obligor and each member of any
"Reporting Group" as defined in any addendum to this Note;
"Reserve Percentage" means the percentage (expressed as a
decimal) which Bank determines to be the maximum (but in any case
less than 1.00) reserve requirement (including, without
limitation, any emergency, marginal, special, or supplemental
reserve requirement) prescribed for so-called "Eurocurrency
liabilities" (or any other category of liabilities that includes
deposits by reference to which the interest rate applicable to
LIBOR Units is determined) under Regulation D (as amended from
time to time) of the Board of Governors of the Federal Reserve
System or under any successor regulation which Bank determines to
be applicable, with each change in such maximum reserve
requirement automatically, immediately, and without notice
changing the interest rate thereafter applicable to each LIBOR
Unit, it being agreed that LIBOR Units shall be deemed
Eurocurrency liabilities subject to such reserve requirements
without the benefit of any credit for proration, exceptions, or
offsets; "Unit" means the aggregate unpaid principal balance of
this Note or any part of that balance; and the foregoing
definitions shall be applicable to the respective plurals of the
foregoing defined terms.
6. Default. A default hereunder shall be defined as it is
under the terms of the Loan Agreement, dated December 31, 1997,
between Borrower and Bank. Upon the occurrence of a default, the
holder of this note may, in its sole discretion, declare this
note to be due and payable, and the principal of and interest on
this note shall thereupon become immediately payable in full,
without any presentment, demand or notice of any kind, which
Borrowers hereby waive. Borrowers will pay to Bank all costs and
expenses of, collection of this note, including, without
limitation attorneys fees.
7. Effects of Default. If any default (other than the
commencement of any Proceeding with respect to Borrower) shall
occur, then, and in each such case, notwithstanding any provision
or inference to the contrary, Bank shall have the right in its
discretion, by giving written notice to Borrower, to declare this
Note to be due, whereupon the entire unpaid principal balance of
this Note (if not already due) shall immediately become due and
payable in full. If any Proceeding shall be commenced with
respect to Borrower, then, notwithstanding any provision or
inference to the contrary, automatically, without presentment,
protest, or notice of dishonor, all of which are waived by all
makers and all indorsers of this Note, now or hereafter existing,
the entire unpaid principal balance of this Note (if not already
due) shall immediately become due and payable in full.
8. Late Charges. If any principal of or interest on this Note
is not paid within ten (10) days after its due date, then, and in
each such case, Bank shall have the right to assess a late
charge, payable by Borrower on demand, in an amount equal to the
greater of twenty dollars ($20.00) or five percent (5%) of the
amount not timely paid.
9. No Setoff. Borrower hereby waives any and all now existing
or hereafter arising rights to recoup or offset any obligation of
Borrower under or in connection with this Note or any Related
Writing against any claim or right of Borrower against Bank.
10. Indemnity: Governmental Costs. If (a) there shall be
enacted any law (including, without limitation, any change in any
law or in its interpretation or administration and any request by
any governmental authority) relating to any interest rate or any
assessment, reserve, or special deposit requirement (except if
and to the extent utilized in computation of the Reserve
Percentage) against assets held by, deposits in, or loans by Bank
or to any tax (other than any tax on Bank's overall net income)
and (b) in Bank's sole opinion any such event increases the cost
of funding or maintaining any LIBOR Unit or reduces the amount of
any payment to be made to Bank in respect thereof, then, and in
each such case, upon Bank's demand, Borrower shall pay Bank an
amount equal to each such cost increase or reduced payment, as
the case may be. In determining any such amount, Bank may use
reasonable averaging and attribution methods. Each determination
by Bank shall be conclusive absent manifest error.
11. Indemnity: Administration and Enforcement. Borrower will
reimburse Bank, on Bank's demand from time to time, for any and
all fees, costs, and expenses (including, without limitation, the
fees and disbursements of legal counsel) incurred by Bank in
administering this Note or in protecting, enforcing, or
attempting to protect or enforce its rights under this Note. If
any amount (other than any principal of this Note and any
interest and late charges) owing under this Note is not paid when
due, then, and in each such case, Borrower shall pay, on Bank's
demand, interest on that amount from the due date thereof until
paid in full at a fluctuating rate equal to four percent (4%) per
annum plus the Prime Rate.
12. Waivers; Remedies; Application of Payments. Bank may from
time to time in its discretion grant waivers and consents in
respect of this Note or any other Related Writing or assent to
amendments thereof, but no such waiver, consent, or amendment
shall be binding upon Bank unless set forth in a writing (which
writing shall be narrowly construed) signed by Bank. No course
of dealing in respect of, nor any omission or delay in the
exercise of, any right, power, or privilege by Bank shall operate
as a waiver thereof, nor shall any single or partial exercise
thereof preclude any further or other exercise thereof or of any
other, as each such right, power, or privilege may be exercised
either independently or concurrently with others and as often and
in such order as Bank may deem expedient. Without limiting the
generality of the foregoing, neither Bank's acceptance of one or
more late payments or charges nor Bank's acceptance of interest
on overdue amounts at the respective rates applicable thereto
shall constitute a waiver of any right of Bank. Each right,
power, or privilege specified or referred to in this Note is in
addition to and not in limitation of any other rights, powers,
and privileges that Bank may otherwise have or acquire by
operation of law, by other contract, or otherwise. Bank shall be
entitled to equitable remedies with respect to each breach or
anticipatory repudiation of any provision of this Note, and
Borrower hereby waives any defense which might be asserted to bar
any such equitable remedy. Bank shall have the right to apply
payments in respect of the indebtedness evidenced by this Note
with such allocation to the respective parts thereof and the
respective due dates thereof as Bank in its sole discretion may
from time to time deem advisable.
13. Other Provisions. The provisions of this Note shall bind
Borrower and Borrower's successors and assigns and benefit Bank
and its successors and assigns, including each subsequent holder,
if any, of this Note. Except for Borrower and Bank and their
respective successors and assigns, there are no intended
beneficiaries of this Note or the loan evidenced by this Note.
The provisions of sections 9 through 16, both inclusive, shall
survive the payment in full of the principal of and interest on
this Note. The captions to the sections and subsections of this
Note are inserted for convenience only and shall be ignored in
interpreting the provisions thereof. Each reference to a section
includes a reference to all subsections thereof (i.e., those
having the same character or characters to the left of the
decimal point) except where the context clearly does not so
permit. If any provision in this Note shall be or become illegal
or unenforceable in any case, then that provision shall be deemed
modified in that case so as to be legal and enforceable to the
maximum extent permitted by law while most nearly preserving its
original intent, and in any case the illegality or
unenforceability of that provision shall affect neither that
provision in any other case nor any other provision. All fees,
interest, and premiums for any given period shall accrue on the
first day thereof but not on the last day thereof (unless the
last day is the first day) and in each case shall be computed on
the basis of a 360-day year and the actual number of days in the
period. In no event shall interest accrue at a higher rate than
the maximum rate, if any, permitted by law. Bank shall have the
right to furnish to its Affiliates, and to such other Persons as
Bank shall deem advisable for the conduct of its business,
information concerning the business, financial condition, and
property of Borrower, the amount of the Bank Debt of Borrower,
and the terms, conditions, and other provisions applicable to the
respective parts thereof. This Note shall be governed by the law
(excluding conflict of laws rules) of the jurisdiction in which
Bank's banking office is located.
14. Integration. This Note and, to the extent consistent with
this Note, the other Related Writings, set forth the entire
agreement of Borrower and Bank as to the subject matter of this
Note, and may not be contradicted by evidence of any agreement or
statement unless made in a writing (which writing shall be
narrowly construed) signed by Bank contemporaneously with or
after the execution and delivery of this Note. Without limiting
the generality of the foregoing, Borrower hereby acknowledges
that Bank has not based, conditioned, or offered to base or
condition the credit hereby evidenced or any charges, fees,
interest rates, or premiums applicable thereto upon Borrower's
agreement to obtain any other credit, property, or service other
than any loan, discount, deposit, or trust service from Bank.
15. Notices and Other Communications. Each notice, demand, or
other communication, whether or not received, shall be deemed to
have been given to Borrower whenever Bank shall have mailed a
writing to that effect by certified or registered mail to
Borrower at Borrower's mailing address (or any other address of
which Borrower shall have given Bank notice after the execution
and delivery of this Note); however, no other method of giving
actual notice to Borrower is hereby precluded. Borrower hereby
irrevocably accepts Borrower's appointment as each Obligor's
agent for the purpose of receiving any notice, demand, or other
communication to be given by Bank to each such Obligor pursuant
to any Related Writing. Bank shall be entitled to assume that
any knowledge possessed by any Obligor other than Borrower is
possessed by Borrower. Each communication to be given to Bank
shall be in writing unless this Note expressly permits that
communication to be made orally, and in any case shall be given
to Bank's Corporate Banking Group at Bank's banking office (or
any other address of which Bank shall have given notice to
Borrower after the execution and delivery of this Note).
Borrower hereby assumes all risk arising out of or in connection
with each oral communication given by Borrower and each
communication given or attempted by Borrower in contravention of
this section. Bank shall be entitled to rely on each
communication believed in good faith by Bank to be genuine.
16. Jurisdiction and Venue; Waiver of Jury Trial. Any action,
claim, counterclaim, crossclaim, proceeding, or suit, whether at
law or in equity, whether sounding in tort, contract, or
otherwise at any time arising under or in connection with this
Note or any other Related Writing, the administration,
enforcement, or negotiation of this Note or any other Related
Writing, or the performance of any obligation in respect of this
Note or any other Related Writing (each such action, claim,
counterclaim, crossclaim, proceeding, or suit, an "Action") may
be brought in any federal or state court located in the city in
which Bank's banking office is located. Borrower hereby
unconditionally submits to the jurisdiction of any such court
with respect to each such Action and hereby waives any objection
Borrower may now or hereafter have to the venue of any such
Action brought in any such court. Borrower HEREBY, AND EACH
HOLDER OF THIS Note, BY TAKING POSSESSION THEREOF, KNOWINGLY AND
VOLUNTARILY WAIVES JURY TRIAL IN RESPECT OF ANY Action.
"BORROWER"
INDIANA UNITED BANCORP
By: /s/ Jay B. Fager
Jay B. Fager
Chief Financial Officer
Bank Officer as Witness:
/s/ Rafe L. Boldrick
Rafe L. Boldrick
Senior Vice President