exv10w1






Exhibit 10.1


 


AMENDED AND RESTATED CREDIT AGREEMENT




Dated as of October 30, 2009




among




WINTRUST FINANCIAL CORPORATION,




as the Borrower,




BANK OF AMERICA, N.A.,

as Administrative Agent,




and




The Other Lenders Party Hereto




 



 









 








TABLE OF CONTENTS




	 	 	 	 	 	 	 
	 	 	 	 	Page
	ARTICLE I DEFINITIONS AND ACCOUNTING TERMS	 	 	1	 
	1.01

	 	Defined Terms
	 	 	1	 
	1.02

	 	Other Interpretive Provisions
	 	 	18	 
	1.03

	 	Accounting Terms (a) Generally
	 	 	19	 
	1.04

	 	Rounding
	 	 	19	 
	1.05

	 	Times of Day
	 	 	19	 
	ARTICLE II THE REVOLVING CREDIT COMMITMENTS AND BORROWINGS	 	 	20	 
	2.01

	 	The Loans
	 	 	20	 
	2.02

	 	Borrowings, Conversions and Continuations of Loans
	 	 	20	 
	2.03

	 	Prepayments
	 	 	21	 
	2.04

	 	Termination or Reduction of Revolving Credit Commitments
	 	 	22	 
	2.05

	 	Repayment of Loans
	 	 	23	 
	2.06

	 	Interest
	 	 	23	 
	2.07

	 	Fees
	 	 	23	 
	2.08

	 	Computation of Interest and Fee
	 	 	24	 
	2.09

	 	Evidence of Debt
	 	 	24	 
	2.10

	 	Payments Generally; Administrative Agent’s Clawback
	 	 	24	 
	2.11

	 	Sharing of Payments by Lenders
	 	 	26	 
	2.12

	 	Increase in Revolving Credit Facility
	 	 	27	 
	ARTICLE III TAXES, YIELD PROTECTION AND ILLEGALITY	 	 	28	 
	3.01

	 	Taxes
	 	 	28	 
	3.02

	 	Illegality
	 	 	31	 
	3.03

	 	Inability to Determine Rates
	 	 	31	 
	3.04

	 	Increased Costs; Reserves on Eurodollar Rate Loans
	 	 	32	 
	3.05

	 	Compensation for Losses
	 	 	33	 
	3.06

	 	Mitigation Obligations; Replacement of Lenders. (a) Designation of a
Different Lending Office
	 	 	34	 
	3.07

	 	Survival
	 	 	34	 
	3.08

	 	Limitations on Obligations
	 	 	34	 
	ARTICLE IV CONDITIONS PRECEDENT TO BORROWINGS	 	 	34	 






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TABLE OF CONTENTS
(continued)




	 	 	 	 	 	 	 
	 	 	 	 	 	Page	 
	4.01

	 	Conditions of Effectiveness
	 	 	34	 
	4.02

	 	Conditions to Initial Borrowing
	 	 	36	 
	4.03

	 	Conditions to all Borrowings
	 	 	36	 
	ARTICLE V REPRESENTATIONS AND WARRANTIES	 	 	37	 
	5.01

	 	Existence, Qualification and Power
	 	 	37	 
	5.02

	 	Authorization; No Contravention
	 	 	37	 
	5.03

	 	Governmental Authorization; Other Consents
	 	 	37	 
	5.04

	 	Binding Effect
	 	 	38	 
	5.05

	 	Financial Statements; No Material Adverse Effect
	 	 	38	 
	5.06

	 	Litigation
	 	 	38	 
	5.07

	 	No Default
	 	 	38	 
	5.08

	 	Ownership of Property
	 	 	39	 
	5.09

	 	Environmental Compliance
	 	 	39	 
	5.10

	 	Insurance
	 	 	39	 
	5.11

	 	Taxes
	 	 	39	 
	5.12

	 	ERISA Compliance
	 	 	39	 
	5.13

	 	Subsidiaries; Equity Interests; Borrower
	 	 	40	 
	5.14

	 	Margin Regulations; Investment Company Act
	 	 	40	 
	5.15

	 	Disclosure
	 	 	40	 
	5.16

	 	Compliance with Laws
	 	 	41	 
	5.17

	 	Solvency
	 	 	41	 
	ARTICLE VI AFFIRMATIVE COVENANTS	 	 	41	 
	6.01

	 	Financial Statements
	 	 	41	 
	6.02

	 	Certificates; Other Information
	 	 	42	 
	6.03

	 	Notices
	 	 	44	 
	6.04

	 	Payment of Obligations
	 	 	44	 
	6.05

	 	Preservation of Existence, Etc.
	 	 	44	 
	6.06

	 	Maintenance of Properties
	 	 	45	 
	6.07

	 	Maintenance of Insurance
	 	 	45	 
	6.08

	 	Compliance with Laws
	 	 	45	 
	6.09

	 	Books and Records
	 	 	45	 






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TABLE OF CONTENTS
(continued)




	 	 	 	 	 	 	 
	 	 	 	 	 	Page	 
	6.10

	 	Inspection Rights
	 	 	45	 
	6.11

	 	Use of Proceeds
	 	 	45	 
	6.12

	 	Further Assurances
	 	 	46	 
	6.13

	 	Material Contracts
	 	 	46	 
	ARTICLE VII NEGATIVE COVENANTS	 	 	46	 
	7.01

	 	Liens
	 	 	46	 
	7.02

	 	Indebtedness
	 	 	47	 
	7.03

	 	Investments
	 	 	48	 
	7.04

	 	Fundamental Changes
	 	 	48	 
	7.05

	 	Dispositions
	 	 	48	 
	7.06

	 	Restricted Payments
	 	 	49	 
	7.07

	 	Change in Nature of Business
	 	 	49	 
	7.08

	 	Transactions with Affiliates
	 	 	49	 
	7.09

	 	Burdensome Agreements
	 	 	49	 
	7.10

	 	Use of Proceeds
	 	 	49	 
	7.11

	 	Acquisitions
	 	 	49	 
	ARTICLE VIII FINANCIAL COVENANTS	 	 	49	 
	ARTICLE IX EVENTS OF DEFAULT AND REMEDIES	 	 	50	 
	9.01

	 	Events of Default
	 	 	50	 
	9.02

	 	Remedies upon Event of Default
	 	 	53	 
	9.03

	 	Application of Funds
	 	 	53	 
	ARTICLE X ADMINISTRATIVE AGENT	 	 	54	 
	10.01

	 	Appointment and Authority
	 	 	54	 
	10.02

	 	Rights as a Lender
	 	 	55	 
	10.03

	 	Exculpatory Provisions
	 	 	55	 
	10.04

	 	Reliance by Administrative Agent
	 	 	56	 
	10.05

	 	Delegation of Duties
	 	 	56	 
	10.06

	 	Resignation of Administrative Agent
	 	 	56	 
	10.07

	 	Non-Reliance on Administrative Agent and Other Lenders
	 	 	57	 
	10.08

	 	Administrative Agent May File Proofs of Claim
	 	 	57	 
	10.09

	 	Collateral Matters
	 	 	58	 






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TABLE OF CONTENTS
(continued)




	 	 	 	 	 	 	 
	 	 	 	 	 	Page	 
	ARTICLE XI MISCELLANEOUS	 	 	58	 
	11.01

	 	Amendments, Etc.
	 	 	58	 
	11.02

	 	Notices; Effectiveness; Electronic Communications
	 	 	60	 
	11.03

	 	No Waiver; Cumulative Remedies; Enforcement
	 	 	62	 
	11.04

	 	Expenses; Indemnity; Damage Waiver
	 	 	62	 
	11.05

	 	Payments Set Aside
	 	 	64	 
	11.06

	 	Successors and Assigns
	 	 	64	 
	11.07

	 	Treatment of Certain Information; Confidentiality
	 	 	67	 
	11.08

	 	Right of Setoff
	 	 	68	 
	11.09

	 	Interest Rate Limitation
	 	 	68	 
	11.10

	 	Counterparts; Integration; Effectiveness
	 	 	69	 
	11.11

	 	Survival of Representations and Warranties
	 	 	69	 
	11.12

	 	Severability
	 	 	69	 
	11.13

	 	Replacement of Lenders
	 	 	69	 
	11.14

	 	Governing Law; Jurisdiction; Etc.
	 	 	70	 
	11.15

	 	Waiver of Jury Trial
	 	 	71	 
	11.16

	 	No Advisory or Fiduciary Responsibility
	 	 	71	 
	11.17

	 	Electronic Execution of Assignments and Certain Other Documents
	 	 	72	 
	11.18

	 	USA PATRIOT Act
	 	 	72	 
	11.19

	 	Time of the Essence
	 	 	72	 
	11.20

	 	ENTIRE AGREEMENT
	 	 	72	 






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	SCHEDULES
	2.01

	 	Revolving Credit Commitments and Applicable Percentages
	4.01

	 	UCC Financing Statements
	5.03

	 	Consents
	5.13

	 	Subsidiaries and Other Equity Investments; Borrower
	7.01

	 	Existing Liens
	7.02

	 	Existing Indebtedness
	7.09

	 	Specified Subsidiaries
	11.02

	 	Administrative Agent’s Office, Certain Addresses for Notices
	EXHIBITS
	Form of

	A

	 	Loan Notice
	B-1

	 	Term Note
	B-2

	 	Revolving Credit Note
	C

	 	Compliance Certificate
	D

	 	Assignment and Assumption
	E

	 	Pledge Agreement






vi









 






AMENDED AND RESTATED CREDIT AGREEMENT




     This AMENDED AND RESTATED CREDIT AGREEMENT (“Agreement”) is entered into as of October
30, 2009, among WINTRUST FINANCIAL CORPORATION (the “Borrower”), each lender from time to
time party hereto (collectively, the “Lenders” and individually, a “Lender”), and
BANK OF AMERICA, N.A., as Administrative Agent.



PRELIMINARY STATEMENTS:




     WHEREAS, the Borrower and Bank of America, N.A., as successor to LaSalle Bank National
Association, are parties to a Credit Agreement dated as of November 1, 2005, as heretofore amended
(as so amended the “Existing Credit Agreement”);



     WHEREAS, the parties thereto have agreed to amend and restate the Existing Credit Agreement as
hereinafter set forth; and



     WHEREAS, the parties hereto intend that this Agreement and the documents executed in
connection herewith not effect a novation of the obligations of the Borrower under the Existing
Credit Agreement, but merely a restatement of and, where applicable, an amendment to the terms
governing such obligations;



     NOW, THEREFORE, in consideration of the mutual agreements, provisions and covenants contained
herein, the Existing Credit Agreement shall be amended and restated in its entirety as follows:



ARTICLE I

DEFINITIONS AND ACCOUNTING TERMS




     1.01 DEFINED TERMS. As used in this Agreement, the following terms shall have the
meanings set forth below:



     “Acquisition” by any Person means, the purchase or other acquisition (in one
transaction or a series of transactions) of assets of another Person that constitute a business
unit or all or a substantial part of the business of, such Person or at least a majority of the
Equity Interests which have voting rights of another Person, in each case whether or not involving
a merger or consolidation with such other Person and whether for cash, property, services,
assumption of Indebtedness, securities or otherwise.



     “Act” has the meaning specified in Section 11.18.



     “Administrative Agent” means Bank of America in its capacity as administrative agent
under any of the Loan Documents, or any successor administrative agent.



     “Administrative Agent’s Office” means the Administrative Agent’s address and, as
appropriate, account as set forth on Schedule 11.02, or such other address or account as
the Administrative Agent may from time to time notify the Borrower and the Lenders.



1









 





     “Administrative Questionnaire” means an Administrative Questionnaire in a form
approved by the Administrative Agent.



     “Affiliate” means, with respect to any Person, another Person that directly, or
indirectly through one or more intermediaries, Controls or is Controlled by or is under common
Control with the Person specified.



     “Aggregate Revolving Credit Commitments” means the Revolving Credit Commitments of all
the Lenders.



     “Agreement” means this Credit Agreement.



     “Applicable Percentage” means (a) in respect of the Term Facility, with respect to any
Term Lender at any time, the percentage (carried out to the ninth decimal place) of the Term
Facility represented by the principal amount of such Term Lender’s Term Loans at such time and (b)
in respect of the Revolving Credit Facility, with respect to any Revolving Credit Lender at any
time, the percentage (carried out to the ninth decimal place) of the Revolving Credit Facility
represented by such Revolving Credit Lender’s Revolving Credit Commitment at such time. If the
Revolving Credit Commitment of each Revolving Credit Lender to make Revolving Credit Loans has been
terminated pursuant to Section 9.02, or if the Revolving Credit Commitments have expired,
then the Applicable Percentage of each Revolving Credit Lender in respect of the Revolving Credit
Facility shall be determined based on the Applicable Percentage of such Revolving Credit Lender in
respect of the Revolving Credit Facility most recently in effect, giving effect to any subsequent
assignments. The initial Applicable Percentage of each Lender in respect of each Facility is set
forth opposite the name of such Lender on Schedule 2.01 or in the Assignment and Assumption
pursuant to which such Lender becomes a party hereto, as applicable.



     “Applicable Rate” means (a) with respect to Eurodollar Loans, 3.5% and (b) with
respect to Base Rate Loans, 0.50%.



     “Applicable Revolving Credit Percentage” means with respect to any Revolving Credit
Lender at any time, such Revolving Credit Lender’s Applicable Percentage in respect of the
Revolving Credit Facility at such time.



     “Approved Fund” means any Fund that is administered by (a) a Lender, (b) an Affiliate
of a Lender or (c) an entity or an Affiliate of an entity that administers or manages a Lender.



     “Assignee Group” means two or more Eligible Assignees that are Affiliates of one
another or two or more Approved Funds.



     “Assignment and Assumption” means an assignment and assumption entered into by a
Lender and an Eligible Assignee (with the consent of any party whose consent is required by
Section 11.06(b)), and accepted by the Administrative Agent, in substantially the form of
Exhibit D or any other form approved by the Administrative Agent.



     “Attributable Indebtedness” means, on any date, (a) in respect of any Capitalized
Lease of any Person, the capitalized amount thereof that would appear on a balance sheet of such



2









 




Person prepared as of such date in accordance with GAAP, and (b) in respect of any Synthetic
Lease Obligation, the capitalized amount of the remaining lease or similar payments under the
relevant lease or other applicable agreement or instrument that would appear on a balance sheet of
such Person prepared as of such date in accordance with GAAP if such lease or other agreement or
instrument were accounted for as a Capitalized Lease.




     “Audited Financial Statements” means the audited consolidated balance sheet of the
Borrower for the fiscal year ended December 31, 2008, and the related consolidated statements of
income or operations, shareholders’ equity and cash flows for such fiscal year of the Borrower and
its Subsidiaries, including the notes thereto.



     “Availability Period” means in respect of the Revolving Credit Facility, the period
from and including the Closing Date to the earliest of (i) the Maturity Date for the Revolving
Credit Facility, (ii) the date of termination of the Revolving Credit Commitments pursuant to
Section 2.04, and (iii) the date of termination of the Revolving Credit Commitment of each
Revolving Credit Lender to make Revolving Credit Loans pursuant to Section 9.02.



     “Bank of America” means Bank of America, N.A. and its successors.



     “Bank Investments” means the sum of Investments in Subsidiary Banks plus the goodwill
of the Borrower (excluding goodwill attributable to such Subsidiary Banks).



     “Base Rate” means for any day a fluctuating rate per annum equal to the highest of (a)
the Federal Funds Rate plus 1/2 of 1% and (b) the rate of interest in effect for such day
as publicly announced from time to time by Bank of America as its “prime rate” and (c) the
Eurodollar Rate that would be applicable for an Interest Period of one month beginning on such day
plus 1.0%. The “prime rate” is a rate set by Bank of America based upon various factors including
Bank of America’s costs and desired return, general economic conditions and other factors, and is
used as a reference point for pricing some loans, which may be priced at, above, or below such
announced rate. Any change in such rate announced by Bank of America shall take effect at the
opening of business on the day specified in the public announcement of such change.



     “Base Rate Loan” means a Revolving Credit Loan or a Term Loan that bears interest
based on the Base Rate.



     “Borrower” has the meaning specified in the introductory paragraph hereto.



     “Borrower Materials” has the meaning specified in Section 6.02.



     “Borrowing” means a borrowing consisting of simultaneous Revolving Credit Loans of the
same Type and, in the case of Eurodollar Rate Loans, having the same Interest Period made by each
of the Revolving Credit Lenders pursuant to Section 2.01(b).



     “Business Day” means any day other than a Saturday, Sunday or other day on which
commercial banks are authorized to close under the Laws of, or are in fact closed in, the state
where the Administrative Agent’s Office is located and, if such day relates to any Eurodollar




3











 





Rate Loan, means any such day on which dealings in Dollar deposits are conducted by and
between banks in the London interbank eurodollar market.




     “Capitalized Leases” means all leases that have been or should be, in accordance with
GAAP, recorded as capitalized leases.



     “Change in Law” means the occurrence, after the date of this Agreement, of any of the
following: (a) the adoption or taking effect of any law, rule, regulation or treaty, (b) any change
in any law, rule, regulation or treaty or in the administration, interpretation or application
thereof by any Governmental Authority or (c) the making or issuance of any request, guideline or
directive (whether or not having the force of law) by any Governmental Authority.



     “Change of Control” means an event or series of events by which:




     (a) any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the
Securities Exchange Act of 1934, but excluding any employee benefit plan of such person or
its subsidiaries, and any person or entity acting in its capacity as trustee, agent or other
fiduciary or administrator of any such plan) becomes the “beneficial owner” (as defined in
Rules 13d-3 and 13d-5 under the Securities Exchange Act of 1934, except that a person or
group shall be deemed to have “beneficial ownership” of all securities that such person or
group has the right to acquire, whether such right is exercisable immediately or only after
the passage of time (such right, an “option right”)), directly or indirectly, of 50%
or more of the equity securities of the Borrower entitled to vote for members of the board
of directors or equivalent governing body of the Borrower on a fully-diluted basis (and
taking into account all such securities that such “person” or “group” has the right to
acquire pursuant to any option right); or




     (b) any Person or two or more Persons acting in concert shall have acquired by contract
or otherwise, or shall have entered into a contract or arrangement that, upon consummation
thereof, will result in its or their acquisition of the power to exercise, directly or
indirectly, a controlling influence over the management or policies of the Borrower, or
control over the equity securities of the Borrower entitled to vote for members of the board
of directors or equivalent governing body of the Borrower on a fully-diluted basis (and
taking into account all such securities that such Person or Persons have the right to
acquire pursuant to any option right) representing 50% or more of the combined voting power
of such securities; or




     (c) the Borrower shall cease to own, directly or indirectly, 100% of the beneficial and
voting Equity Interests of any Pledged Subsidiary, except as permitted by Section
7.04.



     “Closing Date” means the first date all the conditions precedent in Section
4.01 are satisfied or waived in accordance with Section 11.01.



     “Code” means the Internal Revenue Code of 1986.



4









 





     “Collateral” means all of the “Collateral” referred to in the Collateral
Documents and all of the other property that is or is intended under the terms of the Collateral
Documents to be subject to Liens in favor of the Administrative Agent for the benefit of the
Secured Parties.



     “Collateral Documents” means, collectively, the Pledge Agreement and each of the other
agreements, instruments or documents executed by the Borrower that creates or purports to create a
Lien in favor of the Administrative Agent for the benefit of the Secured Parties.



     “Compliance Certificate” means a certificate substantially in the form of Exhibit
C.



     “Contractual Obligation” means, as to any Person, any provision of any security issued
by such Person or of any agreement, instrument or other undertaking to which such Person is a party
or by which it or any of its property is bound.



     “Control” means the possession, directly or indirectly, of the power to direct or
cause the direction of the management or policies of a Person, whether through the ability to
exercise voting power, by contract or otherwise. “Controlling” and “Controlled”
have meanings correlative thereto.



     “Debtor Relief Laws” means the Bankruptcy Code of the United States, and all other
liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium,
rearrangement, receivership, insolvency, reorganization, or similar debtor relief Laws of the
United States or other applicable jurisdictions from time to time in effect and affecting the
rights of creditors generally.



     “Default” means any event or condition that constitutes an Event of Default or that,
with the giving of any notice, the passage of time, or both, would be an Event of Default.



     “Default Rate” means when used with respect to Obligations (other than with respect to
Eurodollar Rate Loans), an interest rate equal to the greater of (i) the sum of the Base Rate,
plus the Applicable Rate, plus 2% per annum and (ii) 6.5% per annum;
provided, however, that with respect to a Eurodollar Rate Loan, the Default Rate
shall be an interest rate equal to the greater of (x) the interest rate (including any Applicable
Rate) otherwise applicable to such Eurodollar Rate Loan plus 2% per annum and (y) 6.5% per
annum.



     “Defaulting Lender” means any Lender that: (a) has failed to fund any portion of the
Loans within one (1) Business Day of the date required to be funded by it hereunder, unless such
failure has been cured; (b) has notified either Borrower, the Administrative Agent or any Lender in
writing that it does not intend to comply with any of its funding obligations hereunder, unless
such notice has been withdrawn and the effect of such notice has been cured; (c) has failed, within
three (3) Business Days after written request by the Administrative Agent based on a reasonable
belief that such Lender may be unwilling or unable to comply, to confirm that it will comply with
the terms of this Agreement relating to its obligations to fund prospective Loans, unless such
failure has been cured; (d) has otherwise failed to pay to the Administrative Agent or any other
Lender any other amount required to be paid by it hereunder within three (3) Business Days of the
date when due, unless the subject of a good faith dispute or such failure has been cured; or (e)
has become the subject of a bankruptcy or insolvency proceeding, or has had a receiver,
conservator, trustee or custodian appointed for it, or has taken any action in furtherance



5









 





of, or indicating its consent to, approval of or acquiescence in any such proceeding or
appointment or has a parent company that has become the subject of a bankruptcy or insolvency
proceeding, or has had a receiver, conservator, trustee or custodian appointed for it, or has taken
any action in furtherance of, or indicating its consent to, approval of or acquiescence in any such
proceeding or appointment.




     “Disposition” or “Dispose” means the sale, transfer, license, lease or other
disposition (including any sale and leaseback transaction) of any property by any Person (or the
granting of any option or other right to do any of the foregoing), including any sale, assignment,
transfer or other disposal, with or without recourse, of any notes or accounts receivable or any
rights and claims associated therewith.



     “Dollar” and “$” mean lawful money of the United States.



     “Eligible Assignee” means any Person that meets the requirements to be an assignee
under Section 11.06(b)(iii), (v) and (vi) (subject to such consents, if
any, as may be required under Section 11.06(b)(iii)).



     “Environmental Laws” means any and all Federal, state, local and foreign statutes,
laws, regulations, ordinances, rules, judgments, orders, decrees, permits, concessions, grants,
franchises, licenses, agreements or governmental restrictions relating to pollution and the
protection of the environment or the release of any materials into the environment, including those
related to hazardous substances or wastes, air emissions and discharges to waste or public systems.



     “Environmental Liability” means any liability, contingent or otherwise (including any
liability for damages, costs of environmental remediation, fines, penalties or indemnities), of the
Borrower or any of its Subsidiaries directly or indirectly resulting from or based upon (a)
violation of any Environmental Law, (b) the generation, use, handling, transportation, storage,
treatment or disposal of any Hazardous Materials, (c) exposure to any Hazardous Materials, (d) the
release or threatened release of any Hazardous Materials into the environment or (e) any contract,
agreement or other consensual arrangement pursuant to which liability is assumed or imposed with
respect to any of the foregoing.



     “Equity Interests” means, with respect to any Person, all of the shares of capital
stock of (or other ownership or profit interests in) such Person, all of the warrants, options or
other rights for the purchase or acquisition from such Person of shares of capital stock of (or
other ownership or profit interests in) such Person, all of the securities convertible into or
exchangeable for shares of capital stock of (or other ownership or profit interests in) such Person
or warrants, rights or options for the purchase or acquisition from such Person of such shares (or
such other interests), and all of the other ownership or profit interests in such Person (including
partnership, member or trust interests therein), whether voting or nonvoting, and whether or not
such shares, warrants, options, rights or other interests are outstanding on any date of
determination.



     “ERISA” means the Employee Retirement Income Security Act of 1974.



     “ERISA Affiliate” means any trade or business (whether or not incorporated) under
common control with the Borrower within the meaning of Section 414(b) or (c) of the Code (and



6









 





Sections 414(m) and (o) of the Code for purposes of provisions relating to Section 412 of the
Code).




     “ERISA Event” means (a) a Reportable Event with respect to a Pension Plan; (b) a
withdrawal by the Borrower or any ERISA Affiliate from a Pension Plan subject to Section 4063 of
ERISA during a plan year in which it was a substantial employer (as defined in Section 4001(a)(2)
of ERISA) or a cessation of operations that is treated as such a withdrawal under Section 4062(e)
of ERISA; (c) a complete or partial withdrawal by the Borrower or any ERISA Affiliate from a
Multiemployer Plan or notification that a Multiemployer Plan is in reorganization; (d) the filing
of a notice of intent to terminate, the treatment of a Plan amendment as a distress termination
under Section 4041 or 4041A of ERISA, or the commencement of proceedings by the PBGC to terminate a
Pension Plan or Multiemployer Plan; (e) an event or condition which constitutes grounds under
Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any
Pension Plan or Multiemployer Plan; or (f) the imposition of any liability under Title IV of ERISA,
other than for PBGC premiums due but not delinquent under Section 4007 of ERISA, upon the Borrower
or any ERISA Affiliate.



     “Eurodollar Rate” means, for any Interest Period with respect to (a) any Eurodollar
Rate Loan, the rate per annum equal to the British Bankers Association LIBOR Rate (“BBA
LIBOR”), as published by Reuters (or other commercially available source providing quotations
of BBA LIBOR as designated by the Administrative Agent from time to time) at approximately 11:00
a.m., London time, two Business Days prior to the commencement of such Interest Period, for Dollar
deposits (for delivery on the first day of such Interest Period) with a term equivalent to such
Interest Period and (b) any Base Rate Loan, the BBA LIBOR at approximately 11:00 a.m., London time,
on the date of determination for Dollar deposits being delivered in the London interbank eurodollar
market for a term of one month commencing that day. If such rate is not available at such time for
any reason, then the “Eurodollar Rate” for such Interest Period shall be the rate per annum
determined by the Administrative Agent to be the rate at which deposits in Dollars for delivery on
the first day of such Interest Period in same day funds in the approximate amount of the Eurodollar
Rate Loan being made, continued or converted by Bank of America and with a term equivalent to such
Interest Period would be offered by Bank of America’s London Branch to major banks in the London
interbank eurodollar market at their request at approximately 11:00 a.m. (London time) two Business
Days prior to the commencement of such Interest Period.



     “Eurodollar Rate Loan” means a Revolving Credit Loan or a Term Loan that bears
interest at a rate based on the Eurodollar Rate.



     “Event of Default” has the meaning specified in Section 9.01.



     “Excluded Taxes” means, with respect to the Administrative Agent, any Lender or any
other recipient of any payment to be made by or on account of any obligation of the Borrower
hereunder, (a) taxes imposed on or measured by its overall net income (however denominated), and
franchise taxes imposed on it (in lieu of net income taxes), by the jurisdiction (or any political
subdivision thereof) under the Laws of which such recipient is organized or in which its principal
office is located or, in the case of any Lender, in which its applicable Lending Office is located,
(b) any branch profits taxes imposed by the United States or any similar tax imposed by



7









 





any other jurisdiction in which the Borrower is located, (c) any backup withholding tax that
is required by the Code to be withheld from amounts payable to a Lender that has failed to comply
with clause (A) of Section 3.01(e)(ii), and (d) in the case of a Foreign Lender (other than
an assignee pursuant to a request by the Borrower under Section 11.13), any United States
withholding tax that (i) is required to be imposed on amounts payable to such Foreign Lender
pursuant to the Laws in force at the time such Foreign Lender becomes a party hereto (or designates
a new Lending Office) or (ii) is attributable to such Foreign Lender’s failure or inability (other
than as a result of a Change in Law) to comply with clause (B) of Section 3.01(e)(ii),
except to the extent that such Foreign Lender (or its assignor, if any) was entitled, at the time
of designation of a new Lending Office (or assignment), to receive additional amounts from the
Borrower with respect to such withholding tax pursuant to Section 3.01(a)(ii) or (c)(i).




     “Existing Credit Agreement” is defined in the recitals.



     “Facility” means the Term Facility or the Revolving Credit Facility, as the context
may require.



     “FDIC” means the Federal Deposit Insurance Corporation.



     “Federal Funds Rate” means, for any day, the rate per annum equal to the weighted
average of the rates on overnight Federal funds transactions with members of the Federal Reserve
System arranged by Federal funds brokers on such day, as published by the Federal Reserve Bank of
New York on the Business Day next succeeding such day; provided that (a) if such day is not
a Business Day, the Federal Funds Rate for such day shall be such rate on such transactions on the
next preceding Business Day as so published on the next succeeding Business Day, and (b) if no such
rate is so published on such next succeeding Business Day, the Federal Funds Rate for such day
shall be the average rate (rounded upward, if necessary, to a whole multiple of 1/100 of 1%)
charged to Bank of America on such day on such transactions as determined by the Administrative
Agent.



     “Fee Letter” means the letter agreement, dated September 4, 2009 between the Borrower
and the Administrative Agent.



     “Foreign Lender” means any Lender that is organized under the Laws of a jurisdiction
other than that in which the Borrower is resident for tax purposes. For purposes of this
definition, the United States, each State thereof and the District of Columbia shall be deemed to
constitute a single jurisdiction.



     “FRB” means the Board of Governors of the Federal Reserve System of the United States.



     “Fund” means any Person (other than a natural person) that is (or will be) engaged in
making, purchasing, holding or otherwise investing in commercial loans and similar extensions of
credit in the ordinary course of its activities.



     “Fundamental Change” is defined in Section 7.04.



8









 





     “GAAP” means generally accepted accounting principles in the United States set forth
in the opinions and pronouncements of the Accounting Principles Board and the American Institute of
Certified Public Accountants and statements and pronouncements of the Financial Accounting
Standards Board or such other principles as may be approved by a significant segment of the
accounting profession in the United States, that are applicable to the circumstances as of the date
of determination, consistently applied.



     “Governmental Authority” means the government of the United States or any other
nation, or of any political subdivision thereof, whether state or local, and any agency, authority,
instrumentality, regulatory body, court, central bank or other entity exercising executive,
legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to
government (including any supra-national bodies such as the European Union or the European Central
Bank).



     “Guarantee” means, as to any Person, any (a) any obligation, contingent or otherwise,
of such Person guaranteeing or having the economic effect of guaranteeing any Indebtedness or other
obligation payable or performable by another Person (the “primary obligor”) in any manner,
whether directly or indirectly, and including any obligation of such Person, direct or indirect,
(i) to purchase or pay (or advance or supply funds for the purchase or payment of) such
Indebtedness or other obligation, (ii) to purchase or lease property, securities or services for
the purpose of assuring the obligee in respect of such Indebtedness or other obligation of the
payment or performance of such Indebtedness or other obligation, (iii) to maintain working capital,
equity capital or any other financial statement condition or liquidity or level of income or cash
flow of the primary obligor so as to enable the primary obligor to pay such Indebtedness or other
obligation or (iv) entered into for the purpose of assuring in any other manner the obligee in
respect of such Indebtedness or other obligation of the payment or performance thereof or to
protect such obligee against loss in respect thereof (in whole or in part) or (b) any Lien on any
assets of such Person securing any Indebtedness or other obligation of any other Person, whether or
not such Indebtedness or other obligation is assumed by such Person (or any right, contingent or
otherwise, of any holder of such Indebtedness to obtain any such Lien). The amount of any
Guarantee shall be deemed to be an amount equal to the stated or determinable amount of the related
primary obligation, or portion thereof, in respect of which such Guarantee is made or, if not
stated or determinable, the maximum reasonably anticipated liability in respect thereof as
determined by the guaranteeing Person in good faith. The term “Guarantee” as a verb has a
corresponding meaning.



     “Hazardous Materials” means all explosive or radioactive substances or wastes and all
hazardous or toxic substances, wastes or other pollutants, including petroleum or petroleum
distillates, asbestos or asbestos-containing materials, polychlorinated biphenyls, radon gas,
infectious or medical wastes and all other substances or wastes of any nature regulated pursuant to
any Environmental Law.



     “Indebtedness” means, as to any Person at a particular time, without duplication, all
of the following, whether or not included as indebtedness or liabilities in accordance with GAAP:




9












 






     (a) all obligations of such Person for borrowed money and all obligations of such
Person evidenced by bonds, debentures, notes, loan agreements or other similar instruments;




     (b) the maximum amount of all direct or contingent obligations of such Person arising
under letters of credit (including standby and commercial), bankers’ acceptances, bank
guaranties, surety bonds and similar instruments;




     (c) net obligations of such Person under any Swap Contract;




     (d) all obligations of such Person to pay the deferred purchase price of property or
services (other than trade accounts payable in the ordinary course of business and not past
due for more than 90 days after the date on which such trade account was due);




     (e) indebtedness (excluding prepaid interest thereon) secured by a Lien on property
owned or being purchased by such Person (including indebtedness arising under conditional
sales or other title retention agreements), whether or not such indebtedness shall have been
assumed by such Person or is limited in recourse;




     (f) all Attributable Indebtedness in respect of Capitalized Leases and Synthetic Lease
Obligations of such Person;




     (g) all obligations of such Person to purchase, redeem, retire, defease or otherwise
make any payment in respect of any Equity Interest in such Person or any other Person or any
warrant, right or option to acquire such Equity Interest, valued, in the case of a
redeemable preferred interest, at the greater of its voluntary or involuntary liquidation
preference plus accrued and unpaid dividends; and




     (h) all Guarantees of such Person in respect of any of the foregoing.



     For all purposes hereof, the Indebtedness of any Person shall include the Indebtedness of any
partnership or joint venture (other than a joint venture that is itself a corporation or limited
liability company) in which such Person is a general partner or a joint venturer, unless such
Indebtedness is expressly made non-recourse to such Person. The amount of any net obligation under
any Swap Contract on any date shall be deemed to be the Swap Termination Value thereof as of such
date.



     “Indemnified Taxes” means Taxes other than Excluded Taxes.



     “Indemnitees” has the meaning specified in Section 11.04(b).



     “Information” has the meaning specified in Section 11.07.



     “Interest Payment Date” means, (a) as to any Eurodollar Rate Loan, the last day of
each Interest Period applicable to such Loan and the Maturity Date of the Facility under which such
Loan was made; and (b) as to any Base Rate, the last Business Day of each March, June,




10











 




September and December and the Maturity Date of the Facility under which such Loan was made.




     “Interest Period” means, as to each Eurodollar Rate Loan, the period commencing on the
date such Eurodollar Rate Loan is disbursed or converted to or continued as a Eurodollar Rate Loan
and ending on the date one, two or three months thereafter, as selected by the Borrower in its Loan
Notice; provided that:




     (a) any Interest Period that would otherwise end on a day that is not a Business Day
shall be extended to the next succeeding Business Day unless such Business Day falls in
another calendar month, in which case such Interest Period shall end on the next preceding
Business Day;




     (b) any Interest Period that begins on the last Business Day of a calendar month (or on
a day for which there is no numerically corresponding day in the calendar month at the end
of such Interest Period) shall end on the last Business Day of the calendar month at the end
of such Interest Period; and




     (c) no Interest Period shall extend beyond the Maturity Date of the Facility under
which such Loan was made.



     “Investment” means, as to any Person, any direct or indirect acquisition (including
any Acquisition) or investment by such Person, whether by means of (a) the purchase or other
acquisition of Equity Interests of another Person, or (b) a loan, advance or capital contribution
to, Guarantee or assumption of debt of, or purchase or other acquisition of any other debt or
interest in, another Person.



     “IRS” means the United States Internal Revenue Service.



     “Laws” means, collectively, all international, foreign, Federal, state and local
statutes, treaties, rules, guidelines, regulations, ordinances, codes and administrative or
judicial precedents or authorities, including the interpretation or administration thereof by any
Governmental Authority charged with the enforcement, interpretation or administration thereof, and
all applicable administrative orders, directed duties, requests, licenses, authorizations and
permits of, and agreements with, any Governmental Authority, in each case whether or not having the
force of law.



     “Lender” has the meaning specified in the introductory paragraph hereto.



     “Lending Office” means, as to any Lender, the office or offices of such Lender
described as such in such Lender’s Administrative Questionnaire, or such other office or offices as
a Lender may from time to time notify the Borrower and the Administrative Agent.



     “Lien” means any mortgage, pledge, hypothecation, assignment, deposit arrangement,
encumbrance, lien (statutory or other), charge or preference, priority or other security interest
or preferential arrangement in the nature of a security interest of any kind or nature whatsoever
(including any conditional sale or other title retention agreement, any easement, right of way or



11









 




other encumbrance on title to real property, and any financing lease having substantially the
same economic effect as any of the foregoing).




     “Loan” means an extension of credit by a Lender to the Borrower under Article
II in the form of a Term Loan or a Revolving Credit Loan.



     “Loan Documents” means, collectively, (a) this Agreement, (b) the Notes, (c) the
Collateral Documents and (d) the Fee Letter.



     “Loan Loss Reserve Ratio” means, as of any date of determination, the ratio of the
designated reserve for loan losses of the Subsidiary Banks to total loans held by the Subsidiary
Banks, each as defined in and determined in accordance with the rules and regulations of the FDIC,
as in effect from time to time.



     “Loan Notice” means a notice of (a) a Revolving Credit Borrowing, (b) a conversion of
Loans from one Type to the other or (c) a continuation of Eurodollar Rate Loans, pursuant to
Section 2.02(a), which, if in writing, shall be substantially in the form of Exhibit
A.



     “Material Adverse Effect” means (a) a material adverse change in, or a material
adverse effect upon, the operations, business, properties, liabilities (actual or contingent) or
condition (financial or otherwise) of the Borrower or the Borrower and its Subsidiaries taken as a
whole; (b) a material impairment of the rights and remedies of the Administrative Agent or any
Lender under any Loan Document, or of the ability of the Borrower to perform its obligations under
any Loan Document to which it is a party; or (c) a material adverse effect upon the legality,
validity, binding effect or enforceability against the Borrower of any Loan Document to which it is
a party.



     “Material Contract” means, with respect to any Person, each contract to which such
Person is a party which it has, or should have, filed as a material contract to its periodic
filings pursuant to the Securities Exchange Act of 1934, as amended.



     “Material Subsidiary” means, at any time, each Subsidiary which has (as of the date of
determination) assets having a book value in excess of 5% of Total Assets.



     “Maturity Date” means (a) with respect to the Revolving Credit Facility, October 29,
2010 and (b) with respect to the Term Facility, June 1, 2015; provided, however,
that, in each case, if such date is not a Business Day, the Maturity Date shall be the next
preceding Business Day.



     “Multiemployer Plan” means any employee benefit plan of the type described in Section
4001(a)(3) of ERISA, to which the Borrower or any ERISA Affiliate makes or is obligated to make
contributions, or during the preceding five plan years, has made or been obligated to make
contributions.



     “Net Worth” means, as of any date of determination, the consolidated shareholders’
equity of the Borrower and its Subsidiaries calculated in accordance with GAAP.



12









 





     “Nonbank Subsidiary” means any Subsidiary of the Borrower that is neither (x) a
Subsidiary Bank nor (y) a direct or indirect Subsidiary of a Subsidiary Bank.



     “Nonperforming Assets” means the sum of (a) Non-Performing Loans, (b) Other Real
Estate Owned and (c) other assets acquired through foreclosure or other realization upon collateral
or rearrangement or satisfaction of Indebtedness.



     “Nonperforming Loans” means all non-accrual loans, restructured loans and loans on
which any payment is 90 or more days past due but which continue to accrue interest, which shall be
derived from the applicable quarterly reports filed by the Subsidiary Banks with its primary
federal regulator, which shall be consistent with the financial information and reports
contemplated in Article VI hereof.



     “Note” means a Term Note or a Revolving Credit Note, as the context may require.



     “Obligations” means all advances to, and debts, liabilities, obligations, covenants
and duties of, the Borrower arising under any Loan Document or otherwise with respect to any Loan,
in each case whether direct or indirect (including those acquired by assumption), absolute or
contingent, due or to become due, now existing or hereafter arising and including interest and fees
that accrue after the commencement by or against the Borrower or any Affiliate thereof of any
proceeding under any Debtor Relief Laws naming such Person as the debtor in such proceeding,
regardless of whether such interest and fees are allowed claims in such proceeding.



     “Organization Documents” means, (a) with respect to any corporation, the certificate
or articles of incorporation and the bylaws (or equivalent or comparable constitutive documents
with respect to any non-U.S. jurisdiction); (b) with respect to any limited liability company, the
certificate or articles of formation or organization and operating agreement; and (c) with respect
to any partnership, joint venture, trust or other form of business entity, the partnership, joint
venture or other applicable agreement of formation or organization and any agreement, instrument,
filing or notice with respect thereto filed in connection with its formation or organization with
the applicable Governmental Authority in the jurisdiction of its formation or organization and, if
applicable, any certificate or articles of formation or organization of such entity.



     “Other Real Estate Owned” means the aggregate amount set forth as “other real estate
owned” in the applicable quarterly reports filed by the Subsidiary Banks with its primary federal
regulator, which shall be consistent with the financial information and reports contemplated in
Article VI hereof.



     “Other Taxes” means all present or future stamp or documentary taxes or any other
excise or property taxes, charges or similar levies arising from any payment made hereunder or
under any other Loan Document or from the execution, delivery or enforcement of, or otherwise with
respect to, this Agreement or any other Loan Document.



     “Outstanding Amount” means (a) with respect to Term Loans or Revolving Credit Loans on
any date, the aggregate outstanding principal amount thereof after giving effect to any borrowings
and prepayments or repayments of Term Loans and Revolving Credit Loans occurring on such date.



13









 





     “Participant” has the meaning specified in Section 11.06(d).



     “PBGC” means the Pension Benefit Guaranty Corporation.



     “Pension Plan” means any “employee pension benefit plan” (as such term is defined in
Section 3(2) of ERISA), other than a Multiemployer Plan, that is subject to Title IV of ERISA and
is sponsored or maintained by the Borrower or any ERISA Affiliate or to which the Borrower or any
ERISA Affiliate contributes or has an obligation to contribute, or in the case of a multiple
employer or other plan described in Section 4064(a) of ERISA, has made contributions at any time
during the immediately preceding five plan years.



     “Person” means any natural person, corporation, limited liability company, trust,
joint venture, association, company, partnership, Governmental Authority or other entity.



     “Plan” means any “employee benefit plan” (as such term is defined in Section 3(3) of
ERISA) established by the Borrower or, with respect to any such plan that is subject to Section 412
of the Code or Title IV of ERISA, any ERISA Affiliate.



     “Platform” has the meaning specified in Section 6.02.



     “Pledge Agreement” has the meaning specified in Section 4.02(a)(i).



     “Pledged Subsidiary” has the meaning specified in the Pledge Agreement.



     “Primary Capital” means the sum of (i) the Subsidiary Banks’ Tier 1 Capital (as
defined in and determined in accordance with the rules and regulations of the FDIC, as in effect
from time to time), plus (ii) the Subsidiary Banks’ loan loss reserve (as defined in and determined
in accordance with the rules and regulations of the FDIC, as in effect from time to time), plus
(iii) the Subsidiary Banks’ subordinated debt.



     “Public Lender” has the meaning specified in Section 6.02.



     “Register” has the meaning specified in Section 11.06(c).



     “Related Parties” means, with respect to any Person, such Person’s Affiliates and the
partners, directors, officers, employees, agents, trustees and advisors of such Person and of such
Person’s Affiliates.



     “Reportable Event” means any of the events set forth in Section 4043(c) of ERISA,
other than events for which the 30 day notice period has been waived.



     “Request for Borrowing” means with respect to a Borrowing, conversion or continuation
of Loans, a Loan Notice.



     “Required Lenders” means, as of any date of determination, Lenders holding at least
66-2/3% of the sum of the (a) Total Outstandings and (b) aggregate unused Revolving Credit
Commitments; provided that the unused Revolving Credit Commitment of, and the portion of
the



14









 




Total Outstandings held or deemed held by, any Defaulting Lender shall be excluded for
purposes of making a determination of Required Lenders.




     “Required Revolving Lenders” means, as of any date of determination, Revolving Credit
Lenders holding at least 66-2/3% of the sum of the (a) Total Revolving Credit Outstandings and (b)
aggregate unused Revolving Credit Commitments; provided that the unused Revolving Credit
Commitment of, and the portion of the Total Revolving Credit Outstandings held or deemed held by,
any Defaulting Lender shall be excluded for purposes of making a determination of Required
Revolving Lenders.



     “Required Term Lenders” means, as of any date of determination, Term Lenders holding
at least 66-2/3% of the Term Facility on such date.



     “Responsible Officer” means the chief executive officer, president, chief financial
officer, chief operating officer, treasurer, assistant treasurer or controller of the Borrower.
Any document delivered hereunder that is signed by a Responsible Officer of the Borrower shall be
conclusively presumed to have been authorized by all necessary corporate, partnership and/or other
action on the part of the Borrower and such Responsible Officer shall be conclusively presumed to
have acted on behalf of the Borrower.



     “Restricted Payment” means any dividend or other distribution (whether in cash,
securities or other property) with respect to any capital stock or other Equity Interest of the
Borrower, or any payment (whether in cash, securities or other property), including any sinking
fund or similar deposit, on account of the purchase, redemption, retirement, defeasance,
acquisition, cancellation or termination of any such capital stock or other Equity Interest, or on
account of any return of capital to the Borrower’s stockholders, or any option, warrant or other
right to acquire any such dividend or other distribution or payment.



     “Return on Assets” means, with respect to the Borrower and its Subsidiaries on a
consolidated basis, the ratio of (a) net income after taxes of the Borrower on a consolidated
basis, as determined according to GAAP for the most recently ended twelve month period to (b) the
average of all assets appearing on the consolidated balance sheet of the Borrower for the most
recently ended twelve month period, as determined by GAAP.



     “Revolving Credit Borrowing” means a borrowing consisting of simultaneous Revolving
Credit Loans of the same Type and, in the case of Eurodollar Rate Loans, having the same Interest
Period made by each of the Revolving Credit Lenders pursuant to Section 2.01(b).



     “Revolving Credit Commitment” means, as to each Revolving Credit Lender, its
obligation to make Revolving Credit Loans to the Borrower pursuant to Section 2.01(b), in
an aggregate principal amount at any one time outstanding not to exceed the amount set forth
opposite such Lender’s name on Schedule 2.01 under the caption “Revolving Credit
Commitment” or opposite such caption in the Assignment and Assumption pursuant to which such Lender
becomes a party hereto, as applicable, as such amount may be adjusted from time to time in
accordance with this Agreement.



     “Revolving Credit Facility” means, the revolving credit facility provided by the
Revolving Credit Lenders’ in accordance with the terms of this Agreement.



15









 





     “Revolving Credit Lender” means, at any time, any Lender that has a Revolving Credit
Commitment at such time.



     “Revolving Credit Loan” has the meaning specified in Section 2.01(b).



     “Revolving Credit Note” means a promissory note made by the Borrower in favor of a
Revolving Credit Lender evidencing Revolving Credit Loans made by such Revolving Credit Lender,
substantially in the form of Exhibit B-2.



     “SEC” means the Securities and Exchange Commission, or any Governmental Authority
succeeding to any of its principal functions.



     “Secured Parties” means, collectively, the Administrative Agent, the Lenders, each
co-agent or sub-agent appointed by the Administrative Agent from time to time pursuant to
Section 10.05, and the other Persons the Obligations owing to it which are or are purported
to be secured by the Collateral under the terms of the Collateral Documents.



     “Solvent” and “Solvency” means, with respect to any Person on any date of
determination, that on such date (a) the fair value of the property of such Person is greater than
the total amount of liabilities, including contingent liabilities, of such Person, (b) the present
fair salable value of the assets of such Person is not less than the amount that will be required
to pay the probable liability of such Person on its debts as they become absolute and matured, (c)
such Person does not intend to, and does not believe that it will, incur debts or liabilities
beyond such Person’s ability to pay such debts and liabilities as they mature, (d) such Person is
not engaged in business or a transaction, and is not about to engage in business or a transaction,
for which such Person’s property would constitute an unreasonably small capital and (e) such Person
is able to pay its debts and liabilities, contingent obligations and other commitments as they
mature in the ordinary course of business. The amount of contingent liabilities at any time shall
be computed as the amount that, in the light of all the facts and circumstances existing at such
time, represents the amount that can reasonably be expected to become an actual or matured
liability.



     “Specified Subsidiary” means any of the Subsidiaries of the Borrower identified on
Schedule 7.09.



     “Subordinated Notes” means (i) the $25,000,000 Subordinated Note dated October 29,
2002 executed by the Borrower in favor of Bank of America, (ii) the $25,000,000 Subordinated Note
dated April 30, 2003 executed by the Borrower in favor of the Bank of America and (iii) the
$25,000,000 Subordinated Note dated October 25, 2005 executed by the Borrower in favor of Bank of
America.



     “Subsidiary” of a Person means a corporation, partnership, joint venture, limited
liability company or other business entity of which a majority of the shares of securities or other
interests having ordinary voting power for the election of directors or other governing body (other
than securities or interests having such power only by reason of the happening of a contingency)
are at the time beneficially owned, or the management of which is otherwise controlled, directly,
or indirectly through one or more intermediaries, or both, by such Person. Unless otherwise
specified, all references herein to a “Subsidiary” or to “Subsidiaries” shall refer
to a Subsidiary or Subsidiaries of the Borrower.



16









 





     “Subsidiary Bank” means, collectively, (i) each bank listed on Schedule
5.13(b) and (ii) each Subsidiary of the Borrower that is formed after the date hereof as a bank
or a banking corporation under applicable law.



     “Swap Contract” means (a) any and all rate swap transactions, basis swaps, credit
derivative transactions, forward rate transactions, commodity swaps, commodity options, forward
commodity contracts, equity or equity index swaps or options, bond or bond price or bond index
swaps or options or forward bond or forward bond price or forward bond index transactions, interest
rate options, forward foreign exchange transactions, cap transactions, floor transactions, collar
transactions, currency swap transactions, cross-currency rate swap transactions, currency options,
spot contracts, or any other similar transactions or any combination of any of the foregoing
(including any options to enter into any of the foregoing), whether or not any such transaction is
governed by or subject to any master agreement, and (b) any and all transactions of any kind, and
the related confirmations, which are subject to the terms and conditions of, or governed by, any
form of master agreement published by the International Swaps and Derivatives Association, Inc.,
any International Foreign Exchange Master Agreement, or any other master agreement (any such master
agreement, together with any related schedules, a “Master Agreement”), including any such
obligations or liabilities under any Master Agreement.



     “Swap Termination Value” means, in respect of any one or more Swap Contracts, after
taking into account the effect of any legally enforceable netting agreement relating to such Swap
Contracts, (a) for any date on or after the date such Swap Contracts have been closed out and
termination value(s) determined in accordance therewith, such termination value(s), and (b) for any
date prior to the date referenced in clause (a), the amount(s) determined as the mark-to-market
value(s) for such Swap Contracts, as determined based upon one or more mid-market or other readily
available quotations provided by any recognized dealer in such Swap Contracts (which may include a
Lender or any Affiliate of a Lender).



     “Synthetic Lease Obligation” means the monetary obligation of a Person under (a) a
so-called synthetic, off-balance sheet or tax retention lease or (b) an agreement for the use or
possession of property (including sale and leaseback transactions), in each case, creating
obligations that do not appear on the balance sheet of such Person but which, upon the application
of any Debtor Relief Laws to such Person, would be characterized as the indebtedness of such Person
(without regard to accounting treatment).



     “Tangible Equity Capital” means the sum of the capital stock, surplus and retained
earning accounts of the Borrower, reduced by the amount of any goodwill.



     “Taxes” means all present or future taxes, levies, imposts, duties, deductions,
withholdings (including backup withholding), assessments, fees or other charges imposed by any
Governmental Authority, including any interest, additions to tax or penalties applicable thereto.



     “Term Facility” means, the term loan facility provided by the Term Lenders in
accordance with the terms of this Agreement.



     “Term Lender” means any Lender that holds Term Loans at such time.




17












 





     “Term Loan” means the loan described in Section 2.01(a) made by a Term Lender.



     “Term Note” means a promissory note made by the Borrower in favor of a Term Lender
evidencing Term Loans made by such Term Lender, substantially in the form of Exhibit B-1.



     “Threshold Amount” means $15,000,000.



     “Total Assets” means, at any time, the aggregate amount set forth as “total assets” on
the Borrower’s most recent annual or quarterly financial statements delivered to the Administrative
Agent pursuant to Section 6.01.



     “Total Revolving Credit Outstandings” means the aggregate Outstanding Amount of all
Revolving Credit Loans.



     “Total Outstandings” means the aggregate Outstanding Amount of all Loans.



     “Type” means, with respect to a Loan, its character as a Base Rate Loan or a
Eurodollar Rate Loan.



     “UCC” means the Uniform Commercial Code as in effect in the State of Illinois;
provided that, if perfection or the effect of perfection or non-perfection or the priority
of any security interest in any Collateral is governed by the Uniform Commercial Code as in effect
in a jurisdiction other than the State of Illinois, “UCC” means the Uniform Commercial Code
as in effect from time to time in such other jurisdiction for purposes of the provisions hereof
relating to such perfection, effect of perfection or non-perfection or priority.



     “Unfunded Pension Liability” means the excess of a Pension Plan’s benefit liabilities
under Section 4001(a)(16) of ERISA, over the current value of that Pension Plan’s assets,
determined in accordance with the assumptions used for funding the Pension Plan pursuant to Section
412 of the Code for the applicable plan year.



     “United States” and “U.S.” mean the United States of America.



     1.02 Other Interpretive Provisions. With reference to this Agreement and each other
Loan Document, unless otherwise specified herein or in such other Loan Document:



     (a) The definitions of terms herein shall apply equally to the singular and plural forms of
the terms defined. Whenever the context may require, any pronoun shall include the corresponding
masculine, feminine and neuter forms. The words “include,” “includes” and “including” shall be
deemed to be followed by the phrase “without limitation.” The word “will” shall be construed to
have the same meaning and effect as the word “shall.” Unless the context requires otherwise, (i)
any definition of or reference to any agreement, instrument or other document (including any
Organization Document) shall be construed as referring to such agreement, instrument or other
document as from time to time amended, supplemented or otherwise modified (subject to any
restrictions on such amendments, supplements or modifications set forth herein or in any other Loan
Document), (ii) any reference herein to any Person shall be construed to include such Person’s
successors and assigns, (iii) the words “herein,” “hereof” and “hereunder,” and words of similar
import when used in any Loan



18









 




Document, shall be construed to refer to such Loan Document in its entirety and not to any
particular provision thereof, (iv) all references in a Loan Document to Articles, Sections,
Exhibits and Schedules shall be construed to refer to Articles and Sections of, Exhibits and
Schedules to, the Loan Document in which such references appear, (v) any reference to any law shall
include all statutory and regulatory provisions consolidating, amending, replacing or interpreting
such law and any reference to any law or regulation shall, unless otherwise specified, refer to
such law or regulation as amended, modified or supplemented from time to time and (vi) the words
“asset” and “property” shall be construed to have the same meaning and effect and
to refer to any and all tangible and intangible assets and properties, including cash, securities,
accounts and contract rights.




     (b) In the computation of periods of time from a specified date to a later specified date, the
word “from” means “from and including;” the words “to” and “until”
each mean “to but excluding;” and the word “through” means “to and
including.”



     (c) Section headings herein and in the other Loan Documents are included for convenience of
reference only and shall not affect the interpretation of this Agreement or any other Loan
Document.



     1.03 Accounting Terms (a) Generally. All accounting terms not specifically or
completely defined herein shall be construed in conformity with, and all financial data (including
financial ratios and other financial calculations) required to be submitted pursuant to this
Agreement shall be prepared in conformity with, GAAP applied on a consistent basis, as in effect
from time to time, applied in a manner consistent with that used in preparing the Audited Financial
Statements, except as otherwise specifically prescribed herein.



     (b) Changes in GAAP. If at any time any change in GAAP would affect the computation
of any financial ratio or requirement set forth in any Loan Document, and either the Borrower or
the Required Lenders shall so request, the Administrative Agent, the Lenders and the Borrower shall
negotiate in good faith to amend such ratio or requirement to preserve the original intent thereof
in light of such change in GAAP (subject to the approval of the Required Lenders); provided
that, until so amended, (i) such ratio or requirement shall continue to be computed in accordance
with GAAP prior to such change therein and (ii) the Borrower shall provide to the Administrative
Agent and the Lenders financial statements and other documents required under this Agreement or as
reasonably requested hereunder setting forth a reconciliation between calculations of such ratio or
requirement made before and after giving effect to such change in GAAP.



     1.04 Rounding. Any financial ratios required to be maintained by the Borrower
pursuant to this Agreement shall be calculated by dividing the appropriate component by the other
component, carrying the result to one place more than the number of places by which such ratio is
expressed herein and rounding the result up or down to the nearest number (with a rounding-up if
there is no nearest number).



     1.05 Times of Day. Unless otherwise specified, all references herein to times of day
shall be references to Chicago time (daylight or standard, as applicable).



19









 





ARTICLE II

THE REVOLVING CREDIT COMMITMENTS AND BORROWINGS




     2.01 The Loans. (a) The Term Facility. The $1 million Term Loan outstanding
under the Existing Credit Agreement shall continue to be outstanding hereunder. As of the Closing
Date, Bank of America is the only Term Lender. Any repayment of the Term Loan is subject to the
conditions in Section 2.03. Term Loans may be Base Rate Loans or Eurodollar Rate Loans, as
further provided herein.



     (b) The Revolving Credit Borrowings. Subject to the terms and conditions set forth
herein, each Revolving Credit Lender severally agrees to make loans (each such loan, a
“Revolving Credit Loan”) to the Borrower from time to time, on any Business Day during the
Availability Period, in an aggregate amount not to exceed at any time outstanding the amount of
such Lender’s Revolving Credit Commitment; provided, however, that after giving effect to any
Revolving Credit Borrowing, (i) the Total Revolving Credit Outstandings shall not exceed the
Aggregate Revolving Credit Commitment, and (ii) the aggregate Outstanding Amount of the Revolving
Credit Loans of any Lender shall not exceed such Revolving Credit Lender’s Revolving Credit
Commitment. Within the limits of each Revolving Credit Lender’s Revolving Credit Commitment, and
subject to the other terms and conditions hereof, the Borrower may borrow under this Section
2.01(b), prepay under Section 2.03, and reborrow under this Section 2.01(b).
Revolving Credit Loans may be Base Rate Loans or Eurodollar Rate Loans, as further provided herein.



     2.02 Borrowings, Conversions and Continuations of Loans. (a) Each Revolving Credit
Borrowing, each conversion of Term Loans or Revolving Credit Loans from one Type to the other, and
each continuation of Eurodollar Rate Loans shall be made upon the Borrower’s irrevocable notice to
the Administrative Agent, which may be given by telephone. Each such notice must be received by
the Administrative Agent not later than 12:00 p.m. (i) two Business Days prior to the requested
date of any Borrowing of, conversion to or continuation of Eurodollar Rate Loans or of any
conversion of Eurodollar Rate Loans to Base Rate Loans, and (ii) on the requested date of any
Borrowing of Base Rate Loans. Each telephonic notice by the Borrower pursuant to this Section
2.02(a) must be confirmed promptly (before 4:00 p.m. on such day) by delivery to the
Administrative Agent of a written Loan Notice, appropriately completed and signed by a Responsible
Officer of the Borrower. Each Borrowing of, conversion to or continuation of Eurodollar Rate Loans
shall be in a principal amount of $1,000,000 or a whole multiple of $250,000 in excess thereof.
Each Borrowing of or conversion to Base Rate Loans shall be in a principal amount of $500,000 or a
whole multiple of $100,000 in excess thereof. Each Loan Notice (whether telephonic or written)
shall specify (i) whether the Borrower is requesting a Revolving Credit Borrowing, a conversion of
Term Loans or Revolving Credit Loans from one Type to the other, or a continuation of Eurodollar
Rate Loans, (ii) the requested date of the Borrowing, conversion or continuation, as the case may
be (which shall be a Business Day), (iii) the principal amount of Loans to be borrowed, converted
or continued, (iv) the Type of Loans to be borrowed or to which existing Term Loans or Revolving
Credit Loans are to be converted, and (v) if applicable, the duration of the Interest Period with
respect thereto. If the Borrower fails to specify a Type of Loan in a Loan Notice or if the
Borrower fails to give a timely notice requesting a conversion or continuation, then the applicable
Term Loans or Revolving Credit Loans shall be made as, or converted to, Base Rate Loans. Any such
automatic



20









 




conversion to Base Rate Loans shall be effective as of the last day of the Interest Period
then in effect with respect to the applicable Eurodollar Rate Loans. If the Borrower requests a
Borrowing of, conversion to, or continuation of Eurodollar Rate Loans in any such Loan Notice, but
fails to specify an Interest Period, it will be deemed to have specified an Interest Period of one
month.




     (b) Following receipt of a Loan Notice, the Administrative Agent shall promptly notify each
Lender of the amount of its Applicable Percentage under the applicable Facility of the applicable
Term Loans or Revolving Credit Loans, and if no timely notice of a conversion or continuation is
provided by the Borrower, the Administrative Agent shall notify each Lender of the details of any
automatic conversion to Base Rate Loans described in Section 2.02(a). In the case of a
Revolving Credit Borrowing, each Revolving Credit Lender shall make the amount of its Loan
available to the Administrative Agent in immediately available funds at the Administrative Agent’s
Office not later than 1:00 p.m. on the Business Day specified in the applicable Loan Notice. Upon
satisfaction of the applicable conditions set forth in Section 4.03 (and, if such Borrowing
is the initial Borrowing, Section 4.02), the Administrative Agent shall make all funds so
received available to the Borrower in like funds as received by the Administrative Agent either by
(i) crediting the account of the Borrower on the books of Bank of America with the amount of such
funds or (ii) wire transfer of such funds, in each case in accordance with instructions provided to
(and reasonably acceptable to) the Administrative Agent by the Borrower.



     (c) Except as otherwise provided herein, a Eurodollar Rate Loan may be continued or converted
only on the last day of an Interest Period for such Eurodollar Rate Loan. During the existence of
an Event of Default, no Loans may be requested as, converted to or continued as Eurodollar Rate
Loans without the consent of the Required Lenders.



     (d) The Administrative Agent shall promptly notify the Borrower and the Lenders of the
interest rate applicable to any Interest Period for Eurodollar Rate Loans upon determination of
such interest rate. At any time that Base Rate Loans are outstanding, the Administrative Agent
shall notify the Borrower and the Lenders of any change in Bank of America’s prime rate used in
determining the Base Rate promptly following the public announcement of such change.



     (e) After giving effect to all conversions of Term Loans from one Type to the other, and all
continuations of Term Loans as the same Type, there shall not be more than one Interest Period in
effect in respect of the Term Facility. After giving effect to all Revolving Credit Borrowings,
all conversions of Revolving Credit Loans from one Type to the other, and all continuations of
Revolving Credit Loans as the same Type, there shall not be more than three Interest Periods in
effect in respect of the Revolving Credit Facility.



     2.03 Prepayments. (a) Optional. (i) The Borrower may, upon notice to the
Administrative Agent, at any time or from time to time voluntarily prepay Revolving Credit Loans in
whole or in part without premium or penalty; provided that (A) such notice must be received
by the Administrative Agent not later than 11:00 a.m. (1) three Business Days prior to any date of
prepayment of Eurodollar Rate Loans and (2) on the date of prepayment of Base Rate Loans; (B) any
prepayment of Eurodollar Rate Loans shall be in a principal amount of $2,000,000 or a whole
multiple of $500,000 in excess thereof; and (C) any prepayment of Base



21









 




Rate Loans shall be in a principal amount of $500,000 or a whole multiple of $100,000 in
excess thereof or, in each case, if less, the entire principal amount thereof then outstanding.
Each such notice shall specify the date and amount of such prepayment and the Type(s) of Loans to
be prepaid and, if Eurodollar Rate Loans are to be prepaid, the Interest Period(s) of such Loans.
The Administrative Agent will promptly notify each Revolving Credit Lender of its receipt of each
such notice, and of the amount of such Revolving Credit Lender’s ratable portion of such prepayment
(based on such Lender’s Applicable Percentage in respect of the Revolving Credit Facility). If
such notice is given by the Borrower, the Borrower shall make such prepayment and the payment
amount specified in such notice shall be due and payable on the date specified therein. Any
prepayment of a Eurodollar Rate Loan shall be accompanied by all accrued interest on the amount
prepaid, together with any additional amounts required pursuant to Section 3.05.





     (ii) Notwithstanding anything to the contrary contained herein, the Borrower shall not
be permitted to prepay the Term Facility unless the Borrower shall have (A) terminated the
Revolving Credit Facility and repaid all Obligations and (B) if Bank of America is a Term
Lender, terminated all credit facilities (including all Swap Contracts) between the Borrower
and Bank of America and repaid all Indebtedness owed to Bank of America. Any prepayment of a
Eurodollar Rate Loan shall be accompanied by all accrued interest on the amount prepaid,
together with any additional amounts required pursuant to Section 3.05.



     (b) Mandatory. If for any reason the Total Revolving Credit Outstandings at any time
exceed the Aggregate Revolving Credit Commitment at such time, the Borrower shall immediately
prepay Revolving Credit Loans in an aggregate amount equal to such excess.



     2.04 Termination or Reduction of Revolving Credit Commitments. (a) Optional.
The Borrower may, upon notice to the Administrative Agent, terminate the Revolving Credit Facility
or from time to time permanently reduce the Aggregate Revolving Credit Commitment; provided
that (i) any such notice shall be received by the Administrative Agent not later than 11:00 a.m.
five Business Days prior to the date of such termination or reduction, (ii) any such partial
reduction shall be in an aggregate amount of $5,000,000 or any whole multiple of $1,000,000 in
excess thereof and (iii) the Borrower shall not terminate or reduce the Aggregate Revolving Credit
Commitment if, after giving effect thereto and to any concurrent prepayments hereunder, the Total
Revolving Credit Outstandings would exceed the Aggregate Revolving Credit Commitment.



     (b) Application of Revolving Credit Commitment Reductions; Payment of Fees. The
Administrative Agent will promptly notify the Lenders of any termination or reduction of the
Aggregate Revolving Credit Commitment under this Section 2.04. Upon any reduction of the
Revolving Credit Commitments, the Revolving Credit Commitment of each Revolving Credit Lender shall
be reduced by such Lender’s Applicable Revolving Credit Percentage of such reduction amount. All
fees in respect of the Aggregate Revolving Credit Commitment accrued until the effective date of
any termination of the Revolving Credit Facility shall be paid on the effective date of such
termination.



22









 





     2.05 Repayment of Loans. (a) Term Loans. The Borrower shall repay to the
Term Lenders on the Maturity Date for the Term Facility the aggregate principal amount of all Term
Loans outstanding on such date.



     (b) Revolving Credit Loans. The Borrower shall repay to the Revolving Credit Lenders
on the Maturity Date for the Revolving Credit Facility the Total Revolving Credit Outstandings as
of such date.



     2.06 Interest. (a) Subject to the provisions of Section 2.06(b), (i) each
Eurodollar Rate Loan shall bear interest on the outstanding principal amount thereof for each
Interest Period at a rate per annum equal to the greater of (x) 4.5% and (y) the Eurodollar Rate
for such Interest Period plus the Applicable Rate; and (ii) each Base Rate Loan shall bear
interest on the outstanding principal amount thereof from the applicable borrowing date at a rate
per annum equal to the greater of (x) 4.5% and (y) the Base Rate plus the Applicable Rate.



     (b) (i) If any amount of principal of any Loan is not paid when due (without regard to any
applicable grace periods), whether at stated maturity, by acceleration or otherwise, such amount
shall thereafter bear interest at a fluctuating interest rate per annum at all times equal to the
Default Rate to the fullest extent permitted by applicable Laws.




     (ii) If any amount (other than principal of any Loan) payable by the Borrower under any
Loan Document is not paid when due (without regard to any applicable grace periods), whether
at stated maturity, by acceleration or otherwise, then upon the request of the Required
Lenders such amount shall thereafter bear interest at a fluctuating interest rate per annum
at all times equal to the Default Rate to the fullest extent permitted by applicable Laws.




     (iii) Upon the request of the Required Lenders, while any Event of Default is
continuing, the Borrower shall pay interest on the principal amount of all outstanding
Obligations hereunder at a fluctuating interest rate per annum at all times equal to the
Default Rate to the fullest extent permitted by applicable Laws.




     (iv) Accrued and unpaid interest on past due amounts (including interest on past due
interest) shall be due and payable upon demand.



     (c) Interest on each Loan shall be due and payable in arrears on each Interest Payment Date
applicable thereto and at such other times as may be specified herein. Interest hereunder shall be
due and payable in accordance with the terms hereof before and after judgment, and before and after
the commencement of any proceeding under any Debtor Relief Law.



     2.07 Fees. (a) Revolving Credit Commitment Fee. The Borrower shall pay to
the Administrative Agent for the account of each Revolving Credit Lender in accordance with its
Applicable Revolving Credit Percentage, a Revolving Credit Commitment fee equal to 0.50% per annum
times the actual daily amount by which the Aggregate Revolving Credit Commitment exceeds
the Total Revolving Credit Outstandings. The Revolving Credit Commitment fee shall accrue at all
times during the Availability Period, including at any time during which one or more of the
conditions in Article IV is not met, and shall be due and payable quarterly in arrears



23









 




on the last Business Day of each March, June, September and December, commencing with the
first such date to occur after the Closing Date, and on the last day of the Availability Period for
the Revolving Credit Facility The Revolving Credit Commitment fee shall be calculated quarterly in
arrears.




     (b) Other Fees. (i) The Borrower shall pay to the Administrative Agent for its own
account, fees in the amounts and at the times specified in the Fee Letter. Such fees shall be
fully earned when paid and shall not be refundable for any reason whatsoever.




     (ii) The Borrower shall pay to the Lenders such fees as shall have been separately
agreed upon in writing in the amounts and at the times so specified. Such fees shall be
fully earned when paid and shall not be refundable for any reason whatsoever.



     2.08 Computation of Interest and Fee. All computations of interest for Base Rate
Loans shall be made on the basis of a year of 365 or 366 days, as the case may be, and actual days
elapsed. All other computations of fees and interest shall be made on the basis of a 360-day year
and actual days elapsed (which results in more fees or interest, as applicable, being paid than if
computed on the basis of a 365-day year). Interest shall accrue on each Loan for the day on which
the Loan is made, and shall not accrue on a Loan, or any portion thereof, for the day on which the
Loan or such portion is paid, provided that any Loan that is repaid on the same day on
which it is made shall, subject to Section 2.10(a), bear interest for one day. Each
determination by the Administrative Agent of an interest rate or fee hereunder shall be conclusive
and binding for all purposes, absent manifest error.



     2.09 Evidence of Debt. The Borrowings made by each Lender shall be evidenced by one
or more accounts or records maintained by such Lender and by the Administrative Agent in the
ordinary course of business. The accounts or records maintained by the Administrative Agent and
each Lender shall be conclusive absent manifest error of the amount of the Borrowings made by the
Lenders to the Borrower and the interest and payments thereon. Any failure to so record or any
error in doing so shall not, however, limit or otherwise affect the obligation of the Borrower
hereunder to pay any amount owing with respect to the Obligations. In the event of any conflict
between the accounts and records maintained by any Lender and the accounts and records of the
Administrative Agent in respect of such matters, the accounts and records of the Administrative
Agent shall control in the absence of manifest error. Upon the request of any Lender made through
the Administrative Agent, the Borrower shall execute and deliver to such Lender (through the
Administrative Agent) a Note, which shall evidence such Lender’s Loans in addition to such accounts
or records. Each Lender may attach schedules to its Note and endorse thereon the date, Type (if
applicable), amount and maturity of its Loans and payments with respect thereto.



     2.10 Payments Generally; Administrative Agent’s Clawback. (a) General. All
payments to be made by the Borrower shall be made without condition or deduction for any
counterclaim, defense, recoupment or setoff. Except as otherwise expressly provided herein, all
payments by the Borrower hereunder shall be made to the Administrative Agent, for the account of
the respective Lenders to which such payment is owed, at the Administrative Agent’s Office in
Dollars and in immediately available funds not later than 2:00 p.m. on the date specified herein.
The Administrative Agent will promptly distribute to each Lender its Applicable Percentage in



24









 




respect of the relevant Facility (or other applicable share as provided herein) of such
payment in like funds as received by wire transfer to such Lender’s Lending Office. All payments
received by the Administrative Agent after 2:00 p.m. shall be deemed received on the next
succeeding Business Day and any applicable interest or fee shall continue to accrue. If any
payment to be made by the Borrower shall come due on a day other than a Business Day, payment shall
be made on the next following Business Day, and such extension of time shall be reflected on
computing interest or fees, as the case may be.




     (b) (i) Funding by Lenders; Presumption by Administrative Agent. Unless the
Administrative Agent shall have received notice from a Lender prior to the proposed date of any
Borrowing of Eurodollar Rate Loans (or, in the case of any Borrowing of Base Rate Loans, prior to
12:00 noon on the date of such Borrowing) that such Lender will not make available to the
Administrative Agent such Lender’s share of such Borrowing, the Administrative Agent may assume
that such Lender has made such share available on such date in accordance with Section 2.02
(or, in the case of a Borrowing of Base Rate Loans, that such Lender has made such share available
in accordance with and at the time required by Section 2.02) and may, in reliance upon such
assumption, make available to the Borrower a corresponding amount. In such event, if a Lender has
not in fact made its share of the applicable Borrowing available to the Administrative Agent, then
the applicable Lender and the Borrower severally agree to pay to the Administrative Agent forthwith
on demand such corresponding amount in immediately available funds with interest thereon, for each
day from and including the date such amount is made available to the Borrower to but excluding the
date of payment to the Administrative Agent, at (A) in the case of a payment to be made by such
Lender, the greater of the Federal Funds Rate and a rate determined by the Administrative Agent in
accordance with banking industry rules on interbank compensation, plus any administrative,
processing or similar fees customarily charged by the Administrative Agent in connection with the
foregoing, and (B) in the case of a payment to be made by the Borrower, the interest rate
applicable to Base Rate Loans. If the Borrower and such Lender shall pay such interest to the
Administrative Agent for the same or an overlapping period, the Administrative Agent shall promptly
remit to the Borrower the amount of such interest paid by the Borrower for such period. If such
Lender pays its share of the applicable Borrowing to the Administrative Agent, then the amount so
paid shall constitute such Lender’s Loan included in such Borrowing. Any payment by the Borrower
shall be without prejudice to any claim the Borrower may have against a Lender that shall have
failed to make such payment to the Administrative Agent.




     (ii) Payments by Borrower; Presumptions by Administrative Agent. Unless the
Administrative Agent shall have received notice from the Borrower prior to the time at which
any payment is due to the Administrative Agent for the account of the Lenders hereunder that
the Borrower will not make such payment, the Administrative Agent may assume that the
Borrower has made such payment on such date in accordance herewith and may, in reliance upon
such assumption, distribute to the Term Lenders and/or Revolving Credit Lender, as
applicable, the amount due. In such event, if the Borrower has not in fact made such
payment, then each of the Term Lenders and/or Revolving Credit Lender, as applicable,
severally agrees to repay to the Administrative Agent forthwith on demand the amount so
distributed to such Lender, in immediately available funds with interest thereon, for each
day from and including the date such amount is distributed to it to but excluding the date
of payment to the Administrative Agent, at the



25









 






greater of the Federal Funds Rate and a rate determined by the Administrative Agent in
accordance with banking industry rules on interbank compensation.



     A notice of the Administrative Agent to any Lender or the Borrower with respect to any amount
owing under this subsection (b) shall be conclusive, absent manifest error.



     (c) Failure to Satisfy Conditions Precedent. If any Lender makes available to the
Administrative Agent funds for any Loan to be made by such Lender as provided in the foregoing
provisions of this Article II, and such funds are not made available to the Borrower by the
Administrative Agent because the conditions to the applicable Borrowing set forth in Article
IV are not satisfied or waived in accordance with the terms hereof, the Administrative Agent
shall return such funds (in like funds as received from such Lender) to such Lender, without
interest.



     (d) Obligations of Lenders Several. The obligations of the Lenders hereunder to make
Revolving Credit Loans and to make payments pursuant to Section 11.04(c) are several and
not joint. The failure of any Lender to make any Loan, to fund any such participation or to make
any payment under Section 11.04(c) on any date required hereunder shall not relieve any
other Lender of its corresponding obligation to do so on such date, and no Lender shall be
responsible for the failure of any other Lender to so make its Loan, to purchase its participation
or to make its payment under Section 11.04(c).



     (e) Funding Source. Nothing herein shall be deemed to obligate any Lender to obtain
the funds for any Loan in any particular place or manner or to constitute a representation by any
Lender that it has obtained or will obtain the funds for any Loan in any particular place or
manner.



     2.11 Sharing of Payments by Lenders. If any Lender shall, by exercising any right of
setoff or counterclaim or otherwise, obtain payment in respect of (a) Obligations in respect of any
the Facilities due and payable to such Lender hereunder and under the other Loan Documents at such
time in excess of its ratable share (according to the proportion of (i) the amount of such
Obligations due and payable to such Lender at such time to (ii) the aggregate amount of the
Obligations in respect of the Facilities due and payable to all Lenders hereunder and under the
other Loan Documents at such time) of payments on account of the Obligations in respect of the
Facilities due and payable to all Lenders hereunder and under the other Loan Documents at such time
obtained by all the Lenders at such time or (b) Obligations in respect of any of the Facilities
owing (but not due and payable) to such Lender hereunder and under the other Loan Documents at such
time in excess of its ratable share (according to the proportion of (i) the amount of such
Obligations owing (but not due and payable) to such Lender at such time to (ii) the aggregate
amount of the Obligations in respect of the Facilities owing (but not due and payable) to all
Lenders hereunder and under the other Loan Documents at such time) of payment on account of the
Obligations in respect of the Facilities owing (but not due and payable) to all Lenders hereunder
and under the other Loan Documents at such time obtained by all of the Lenders at such time then
the Lender receiving such greater proportion shall (a) notify the Administrative Agent of such
fact, and (b) purchase (for cash at face value) participations in the Loans of the other Lenders,
or make such other adjustments as shall be equitable, so that the benefit of all such payments
shall be shared by the Lenders ratably in accordance with the



26









 




aggregate amount of Obligations in respect of the Facilities then due and payable to the
Lenders or owing (but not due and payable) to the Lenders, as the case may be, provided
that:





     (i) if any such participations are purchased and all or any portion of the payment
giving rise thereto is recovered, such participations shall be rescinded and the purchase
price restored to the extent of such recovery, without interest; and




     (ii) the provisions of this Section shall not be construed to apply to (A) any payment
made by the Borrower pursuant to and in accordance with the express terms of this Agreement
or (B) any payment obtained by a Lender as consideration for the assignment of or sale of a
participation in any of its Loans to any assignee or participant, other than to the Borrower
or any Subsidiary thereof (as to which the provisions of this Section shall apply).



     The Borrower consents to the foregoing and agrees, to the extent it may effectively do so
under applicable law, that any Lender acquiring a participation pursuant to the foregoing
arrangements may exercise against the Borrower rights of setoff and counterclaim with respect to
such participation as fully as if such Lender were a direct creditor of the Borrower in the amount
of such participation.



     2.12 Increase in Revolving Credit Facility. (a) Request for Increase.
Provided there exists no Default, the Borrower may from time to time, request an increase in the
Revolving Credit Facility by an amount (for all such requests) not exceeding $25,000,000 through
the addition of one or more Eligible Assignees as a Revolving Credit Lender; provided that
(i) any such request for an increase shall be in a minimum amount of $5,000,000, and (ii) the
Borrower may make a maximum of two such requests. The proposed Eligible Assignee shall be subject
to the approval of the Administrative Agent (which shall not be unreasonably withheld or delayed).
Each Eligible Assignee shall execute a joinder agreement in form and substance satisfactory to the
Administrative Agent and its counsel.



     (b) Effective Date and Allocations. If the Revolving Credit Facility is increased in
accordance with this Section, the Administrative Agent and the Borrower shall determine the
effective date (the “Revolving Credit Increase Effective Date”) and the Administrative
Agent shall promptly notify the Revolving Credit Lenders of the increase and the Revolving Credit
Increase Effective Date.



     (c) Conditions to Effectiveness of Increase. As a condition precedent to such
increase, the Borrower shall deliver to the Administrative Agent a certificate of the Borrower
dated as of the Revolving Credit Increase Effective Date (in sufficient copies for each Lender)
signed by a Responsible Officer of the Borrower (i) certifying and attaching the resolutions
adopted by the Borrower approving or consenting to such increase, and (ii) certifying that, before
and after giving effect to such increase, (A) the representations and warranties contained in
Article V and the other Loan Documents are true and correct in all material respects on and
as of the Revolving Credit Increase Effective Date, except to the extent that such representations
and warranties specifically refer to an earlier date, in which case they are true and correct in
all material respects as of such earlier date, and except that for purposes of this Section
2.12 the representations and warranties contained in subsections (a) and (b) of Section
5.05 shall be



27









 




deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b),
respectively, of Section 6.01, and (B) no Default exists. The Borrower shall prepay any
Revolving Credit Loans outstanding on the Revolving Credit Increase Effective Date (and pay any
additional amounts required pursuant to Section 3.05) to the extent necessary to keep the
outstanding Revolving Credit Loans ratable with any revised Applicable Revolving Credit Percentages
arising from the increase in the Revolving Credit Commitments under this Section.




     (d) Conflicting Provisions. This Section shall supersede any provisions in
Section 2.11 or 11.01 to the contrary.



ARTICLE III

TAXES, YIELD PROTECTION AND ILLEGALITY




     3.01 Taxes. (a) Payments Free of Taxes; Obligation to Withhold; Payments on
Account of Taxes. (i) Any and all payments by or on account of any obligation of the Borrower
hereunder or under any other Loan Document shall to the extent permitted by applicable Laws be made
free and clear of and without reduction or withholding for any Taxes. If, however, applicable Laws
require the Borrower or the Administrative Agent to withhold or deduct any Tax, such Tax shall be
withheld or deducted in accordance with such Laws as determined by the Borrower or the
Administrative Agent, as the case may be, upon the basis of the information and documentation to be
delivered pursuant to subsection (e) below.




     (ii) If the Borrower or the Administrative Agent shall be required by the Code to
withhold or deduct any Taxes, including both United States Federal backup withholding and
withholding taxes, from any payment, then (A) the Administrative Agent shall withhold or
make such deductions as are determined by the Administrative Agent to be required based upon
the information and documentation it has received pursuant to subsection (e) below, (B) the
Administrative Agent shall timely pay the full amount withheld or deducted to the relevant
Governmental Authority in accordance with the Code, and (C) to the extent that the
withholding or deduction is made on account of Indemnified Taxes or Other Taxes, the sum
payable by the Borrower shall be increased as necessary so that after any required
withholding or the making of all required deductions (including deductions applicable to
additional sums payable under this Section) the Administrative Agent or Lender, as the case
may be, receives an amount equal to the sum it would have received had no such withholding
or deduction been made.



     (b) Payment of Other Taxes by the Borrower. Without limiting the provisions of
subsection (a) above, the Borrower shall timely pay any Other Taxes to the relevant Governmental
Authority in accordance with applicable law.



     (c) Tax Indemnifications. (i) Without limiting the provisions of subsection (a) or
(b) above, the Borrower shall, and does hereby, indemnify the Administrative Agent and each
Lender, and shall make payment in respect thereof within 10 days after demand therefor, for the
full amount of any Indemnified Taxes or Other Taxes (including Indemnified Taxes or Other Taxes
imposed or asserted on or attributable to amounts payable under this Section) withheld or deducted
by the Borrower or the Administrative Agent or paid by the Administrative Agent or



28









 




such Lender, as the case may be, and any penalties, interest and reasonable expenses arising
therefrom or with respect thereto, whether or not such Indemnified Taxes or Other Taxes were
correctly or legally imposed or asserted by the relevant Governmental Authority. The Borrower
shall also, and does hereby, indemnify the Administrative Agent, and shall make payment in respect
thereof within 10 days after demand therefor, for any amount which a Lender for any reason fails to
pay indefeasibly to the Administrative Agent as required by clause (ii) of this subsection. A
certificate as to the amount of any such payment or liability delivered to the Borrower by a
Lender (with a copy to the Administrative Agent), or by the Administrative Agent on its own behalf
or on behalf of a Lender, shall be conclusive absent manifest error.





     (ii) Without limiting the provisions of subsection (a) or (b) above, each Lender shall,
and does hereby, indemnify the Borrower and the Administrative Agent, and shall make payment
in respect thereof within 10 days after demand therefor, against any and all Taxes and any
and all related losses, claims, liabilities, penalties, interest and expenses (including the
reasonable fees, charges and disbursements of any outside counsel for the Borrower or the
Administrative Agent) incurred by or asserted against the Borrower or the Administrative
Agent by any Governmental Authority as a result of the failure by such Lender to deliver, or
as a result of the inaccuracy, inadequacy or deficiency of, any documentation required to be
delivered by such Lender, to the Borrower or the Administrative Agent pursuant to subsection
(e). Each Lender hereby authorizes the Administrative Agent to set off and apply any and
all amounts at any time owing to such Lender under this Agreement or any other Loan Document
against any amount due to the Administrative Agent under this clause (ii). The agreements
in this clause (ii) shall survive the resignation and/or replacement of the Administrative
Agent, any assignment of rights by, or the replacement of, a Lender, the termination of the
Aggregate Revolving Credit Commitments and the repayment, satisfaction or discharge of all
other Obligations.



     (d) Evidence of Payments. Upon request by the Borrower or the Administrative Agent,
as the case may be, after any payment of Taxes by the Borrower or the Administrative Agent to a
Governmental Authority as provided in this Section 3.01, the Borrower shall deliver to the
Administrative Agent or the Administrative Agent shall deliver to the Borrower, as the case may be,
the original or a certified copy of a receipt issued by such Governmental Authority evidencing such
payment, a copy of any return required by Laws to report such payment or other evidence of such
payment reasonably satisfactory to the Borrower or the Administrative Agent, as the case may be.



     (e) Status of Lenders; Tax Documentation. (i) Each Lender shall deliver to the
Borrower and to the Administrative Agent, at the time or times prescribed by applicable Laws or
when reasonably requested by the Borrower or the Administrative Agent, such properly completed and
executed documentation prescribed by applicable Laws or by the taxing authorities of any
jurisdiction and such other reasonably requested information as will permit the Borrower or the
Administrative Agent, as the case may be, to determine (A) whether or not payments made hereunder
or under any other Loan Document are subject to Taxes, (B) if applicable, the required rate of
withholding or deduction, and (C) such Lender’s entitlement to any available exemption from, or
reduction of, applicable Taxes in respect of all payments to be



29









 




made to such Lender by the Borrower pursuant to this Agreement or otherwise to establish such
Lender’s status for withholding tax purposes in the applicable jurisdiction.





     (ii) Without limiting the generality of the foregoing, if the Borrower is resident for
tax purposes in the United States,




     (A) any Lender that is a “United States person” within the meaning of Section
7701(a)(30) of the Code shall deliver to the Borrower and the Administrative Agent executed
originals of Internal Revenue Service Form W-9 or such other documentation or information
prescribed by applicable Laws or reasonably requested by the Borrower or the Administrative
Agent as will enable the Borrower or the Administrative Agent, as the case may be, to
determine whether or not such Lender is subject to backup withholding or information
reporting requirements; and




     (B) each Foreign Lender that is entitled under the Code or any applicable treaty to an
exemption from or reduction of withholding tax with respect to payments hereunder or under
any other Loan Document shall deliver to the Borrower and the Administrative Agent (in such
number of copies as shall be requested by the recipient) on or prior to the date on which
such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter
upon the request of the Borrower or the Administrative Agent, but only if such Foreign
Lender is legally entitled to do so), whichever of the following is applicable:




     (I) executed originals of Internal Revenue Service Form W-8BEN claiming
eligibility for benefits of an income tax treaty to which the United States is a
party,




     (II) executed originals of Internal Revenue Service Form W-8ECI,




     (III) executed originals of Internal Revenue Service Form W-8IMY and all
required supporting documentation,




     (IV) in the case of a Foreign Lender claiming the benefits of the exemption for
portfolio interest under section 881(c) of the Code, (x) a certificate to the effect
that such Foreign Lender is not (A) a “bank” within the meaning of section
881(c)(3)(A) of the Code, (B) a “10 percent shareholder” of the Borrower within the
meaning of section 881(c)(3)(B) of the Code, or (C) a “controlled foreign
corporation” described in section 881(c)(3)(C) of the Code and (y) executed
originals of Internal Revenue Service Form W-8BEN, or




     (V) executed originals of any other form prescribed by applicable Laws as a
basis for claiming exemption from or a reduction in United States Federal
withholding tax together with such supplementary documentation as may be prescribed
by applicable Laws to permit the Borrower or the Administrative Agent to determine
the withholding or deduction required to be made.




     (iii) Each Lender shall promptly (A) notify the Borrower and the Administrative Agent of
any change in circumstances which would modify or render



30









 






invalid any claimed exemption or reduction and (B) take such steps as shall not be
materially disadvantageous to it, in the reasonable judgment of such Lender, and as may be
reasonably necessary (including the re-designation of its Lending Office) to avoid any
requirement of applicable Laws of any jurisdiction that the Borrower or the Administrative
Agent make any withholding or deduction for taxes from amounts payable to such Lender.



     (f) Treatment of Certain Refunds. Unless required by applicable Laws, at no time
shall the Administrative Agent have any obligation to file for or otherwise pursue on behalf of a
Lender, or have any obligation to pay to any Lender, any refund of Taxes withheld or deducted from
funds paid for the account of such Lender. If the Administrative Agent or any Lender determines,
in its sole discretion, that it has received a refund of any Taxes or Other Taxes as to which it
has been indemnified by the Borrower or with respect to which the Borrower has paid additional
amounts pursuant to this Section, it shall pay to the Borrower an amount equal to such refund (but
only to the extent of indemnity payments made, or additional amounts paid, by the Borrower under
this Section with respect to the Taxes or Other Taxes giving rise to such refund), net of all
reasonable out-of-pocket expenses incurred by the Administrative Agent or such Lender, and without
interest (other than any interest paid by the relevant Governmental Authority with respect to such
refund), provided that the Borrower, upon the request of the Administrative Agent or such
Lender, agrees to repay the amount paid over to the Borrower (plus any penalties, interest or
other charges imposed by the relevant Governmental Authority) to the Administrative Agent or such
Lender in the event the Administrative Agent or such Lender is required to repay such refund to
such Governmental Authority. This subsection shall not be construed to require the Administrative
Agent or any Lender to make available its tax returns (or any other information relating to its
taxes that it deems confidential) to the Borrower or any other Person.



     3.02 Illegality. If any Lender determines that any Law has made it unlawful, or that
any Governmental Authority has asserted that it is unlawful, for any Lender or its applicable
Lending Office to make, maintain or fund Eurodollar Rate Loans, or to determine or charge interest
rates based upon the Eurodollar Rate, or any Governmental Authority has imposed material
restrictions on the authority of such Lender to purchase or sell, or to take deposits of, Dollars
in the London interbank market, then, on notice thereof by such Lender to the Borrower through the
Administrative Agent, any obligation of such Lender to make or continue Eurodollar Rate Loans or to
convert Base Rate Loans to Eurodollar Rate Loans shall be suspended until such Lender notifies the
Administrative Agent and the Borrower that the circumstances giving rise to such determination no
longer exist. Upon receipt of such notice, the Borrower shall, upon demand from such Lender (with
a copy to the Administrative Agent), prepay or, if applicable, convert all Eurodollar Rate Loans of
such Lender to Base Rate Loans, either on the last day of the Interest Period therefor, if such
Lender may lawfully continue to maintain such Eurodollar Rate Loans to such day, or immediately, if
such Lender may not lawfully continue to maintain such Eurodollar Rate Loans. Upon any such
prepayment or conversion, the Borrower shall also pay accrued interest on the amount so prepaid or
converted.



     3.03 Inability to Determine Rates. If the Required Lenders determine that for any
reason in connection with any request for a Eurodollar Rate Loan or a conversion to or continuation
thereof that (a) Dollar deposits are not being offered to banks in the London interbank eurodollar



31









 




market for the applicable amount and Interest Period of such Eurodollar Rate Loan or (b)
adequate and reasonable means do not exist for determining the Eurodollar Rate for any requested
Interest Period with respect to a proposed Eurodollar Rate Loan, the Administrative Agent will
promptly so notify the Borrower and each Lender. Thereafter, the obligation of the Lenders to make
or maintain Eurodollar Rate Loans shall be suspended until the Administrative Agent (upon the
instruction of the Required Lenders) revokes such notice. Upon receipt of such notice, the
Borrower may revoke any pending request for a Borrowing of, conversion to or continuation of
Eurodollar Rate Loans or, failing that, will be deemed to have converted such request into a
request for a Borrowing of Base Rate Loans in the amount specified therein.




     3.04 Increased Costs; Reserves on Eurodollar Rate Loans. (a) Increased Costs
Generally. If any Change in Law shall:




     (i) impose, modify or deem applicable any reserve, special deposit, compulsory loan,
insurance charge or similar requirement against assets of, deposits with or for the account
of, or credit extended or participated in by, any Lender (except any reserve requirement
contemplated by Section 3.04(e));




     (ii) subject any Lender to any tax of any kind whatsoever with respect to this
Agreement or any Eurodollar Rate Loan made by it, or change the basis of taxation of
payments to such Lender in respect thereof (except for Indemnified Taxes or Other Taxes
covered by Section 3.01 and the imposition of, or any change in the rate of, any
Excluded Tax payable by such Lender); or




     (iii) impose on any Lender or the London interbank market any other condition, cost or
expense affecting this Agreement or Eurodollar Rate Loans made by such Lender;


and the result of any of the foregoing shall be to increase the cost to such Lender of making or
maintaining any Eurodollar Rate Loan (or of maintaining its obligation to make any such Loan), or
to reduce the amount of any sum received or receivable by such Lender hereunder (whether of
principal, interest or any other amount) then, upon request of such Lender, the Borrower will pay
to such Lender, such additional amount or amounts as will compensate such Lender for such
additional costs incurred or reduction suffered.




     (b) Capital Requirements. If any Lender determines that any Change in Law affecting
such Lender or any Lending Office of such Lender or such Lender’s holding company, if any,
regarding capital requirements has or would have the effect of reducing the rate of return on such
Lender’s capital or on the capital of such Lender’s holding company, if any, as a consequence of
this Agreement, the Revolving Credit Commitment of such Lender or the Loans made by such Lender, to
a level below that which such Lender or such Lender’s holding company could have achieved but for
such Change in Law (taking into consideration such Lender’s policies and the policies of such
Lender’s holding company with respect to capital adequacy), then from time to time the Borrower
will pay to such Lender such additional amount or amounts as will compensate such Lender or such
Lender’s holding company for any such reduction suffered.



32









 





     (c) Certificates for Reimbursement. A certificate of a Lender setting forth the
amount or amounts necessary to compensate such Lender or its holding company, as the case may be,
as specified in subsection (a) or (b) of this Section and delivered to the Borrower shall be
conclusive absent manifest error. The Borrower shall pay such Lender the amount shown as due on
any such certificate within 10 days after receipt thereof.



     (d) Delay in Requests. Failure or delay on the part of any Lender to demand
compensation pursuant to the foregoing provisions of this Section shall not constitute a waiver of
such Lender’s right to demand such compensation, provided that the Borrower shall not be
required to compensate a Lender pursuant to the foregoing provisions of this Section for any
increased costs incurred or reductions suffered more than nine months prior to the date that such
Lender notifies the Borrower of the Change in Law giving rise to such increased costs or reductions
and of such Lender’s intention to claim compensation therefor (except that, if the Change in Law
giving rise to such increased costs or reductions is retroactive, then the nine-month period
referred to above shall be extended to include the period of retroactive effect thereof).



     (e) Reserves on Eurodollar Rate Loans. The Borrower shall pay to each Lender, as long
as such Lender shall be required to maintain reserves with respect to liabilities or assets
consisting of or including Eurocurrency funds or deposits (currently known as “Eurocurrency
liabilities”), additional interest on the unpaid principal amount of each Eurodollar Rate Loan
equal to the actual costs of such reserves allocated to such Loan by such Lender (as determined by
such Lender in good faith, which determination shall be conclusive), which shall be due and payable
on each date on which interest is payable on such Loan, provided the Borrower shall have
received at least 10 days’ prior notice (with a copy to the Administrative Agent) of such
additional interest from such Lender. If a Lender fails to give notice 10 days prior to the
relevant Interest Payment Date, such additional interest shall be due and payable 10 days from
receipt of such notice.



     3.05 Compensation for Losses. Upon demand of any Lender (with a copy to the
Administrative Agent) from time to time, the Borrower shall promptly compensate such Lender for and
hold such Lender harmless from any loss, cost or expense incurred by it as a result of:



     (a) any continuation, conversion, payment or prepayment of any Loan other than a Base Rate
Loan on a day other than the last day of the Interest Period for such Loan (whether voluntary,
mandatory, automatic, by reason of acceleration or otherwise);



     (b) any failure by the Borrower (for a reason other than the failure of such Lender to make a
Loan) to prepay, borrow, continue or convert any Loan other than a Base Rate Loan on the date or in
the amount notified by the Borrower; or



     (c) any assignment of a Eurodollar Rate Loan on a day other than the last day of the Interest
Period therefor as a result of a request by the Borrower pursuant to Section 11.13;


including any loss of anticipated profits and any loss or expense arising from the liquidation or
reemployment of funds obtained by it to maintain such Loan or from fees payable to terminate




33









 







the deposits from which such funds were obtained. The Borrower shall also pay any customary
administrative fees charged by such Lender in connection with the foregoing.



For purposes of calculating amounts payable by the Borrower to the Lenders under this Section
3.05, each Lender shall be deemed to have funded each Eurodollar Rate Loan made by it at the
Eurodollar Rate for such Loan by a matching deposit or other borrowing in the London interbank
eurodollar market for a comparable amount and for a comparable period, whether or not such
Eurodollar Rate Loan was in fact so funded.




     3.06 Mitigation Obligations; Replacement of Lenders. (a) Designation of a
Different Lending Office. If any Lender requests compensation under Section 3.04, or
the Borrower is required to pay any additional amount to any Lender or any Governmental Authority
for the account of any Lender pursuant to Section 3.01, or if any Lender gives a notice
pursuant to Section 3.02, then such Lender shall, as applicable, use reasonable efforts to
designate a different Lending Office for funding or booking its Loans hereunder or to assign its
rights and obligations hereunder to another of its offices, branches or affiliates, if, in the
judgment of such, such designation or assignment (i) would eliminate or reduce amounts payable
pursuant to Section 3.01 or 3.04, as the case may be, in the future, or eliminate
the need for the notice pursuant to Section 3.02, as applicable, and (ii) in each case,
would not subject such Lender to any unreimbursed cost or expense and would not otherwise be
disadvantageous to such Lender. The Borrower hereby agrees to pay all reasonable costs and
expenses incurred by any Lender in connection with any such designation or assignment.



     (b) Replacement of Lenders. If any Lender requests compensation under Section
3.04, or if the Borrower is required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to Section 3.01, the Borrower
may replace such Lender in accordance with Section 11.13.



     3.07 Survival. All of the Borrower’s obligations under this Article III shall
survive termination of the Aggregate Revolving Credit Commitments, repayment of all other
Obligations hereunder, and resignation of the Administrative Agent.



     3.08 Limitations on Obligations. Notwithstanding anything to the contrary contained
in this Article III, unless a Lender gives notice to the Borrower that it is obligated to pay an
amount under the respective Section within 90 days after the date such Lender incurs the respective
increased costs, Taxes, loss, expense or liability, reduction in amounts received or receivable or
reduction in return on capital, then such Lender shall only be entitled to be compensated for such
amount by the Borrower pursuant to this Article III, to the extent the costs, Taxes, loss, expense
or liability, reduction in amounts received or receivable or reduction in return on capital are
incurred or suffered on or after the date which occurs 90 days prior to such Lender giving notice
to the Borrower that it is obligated to pay the respective amounts pursuant to this Article III.



ARTICLE IV

CONDITIONS PRECEDENT TO BORROWINGS




     4.01 Conditions of Effectiveness. This Agreement shall become effective if, on or
before October 30, 2009, all of the following conditions precedent have been met:



34









 





     (a) The Administrative Agent’s receipt of the following, each of which shall be originals,
“pdfs” or telecopies (followed promptly by originals) unless otherwise specified, each properly
executed by a Responsible Officer, each dated the Closing Date (or, in the case of certificates of
governmental officials, a recent date before the Closing Date) and each in form and substance
reasonably satisfactory to the Administrative Agent and each of the Lenders:




     (i) executed counterparts of this Agreement, sufficient in number for distribution to
the Administrative Agent, each Lender and the Borrower;




     (ii) a Note executed by the Borrower in favor of each Lender requesting a Note;




     (iii) such certificates of resolutions or other action, incumbency certificates and/or
other certificates of Responsible Officers of the Borrower as the Administrative Agent may
require evidencing the identity, authority and capacity of each Responsible Officer thereof
authorized to act as a Responsible Officer in connection with this Agreement and the other
Loan Documents to which the Borrower is a party or is to be a party;




     (iv) such documents and certifications as the Administrative Agent may reasonably
require to evidence that the Borrower is duly organized or formed;




     (v) a certificate signed by a Responsible Officer of the Borrower certifying (A) that
the conditions specified in Sections 4.03(a) and (b) have been satisfied,
(B) that there has been no event or circumstance since the date of the Audited Financial
Statements that has had or could be reasonably expected to, either individually or in the
aggregate, (x) have a Material Adverse Effect or (y) result in a material adverse change in
or have a material adverse effect upon the prospects of the Borrower or the Borrower and its
Subsidiaries taken as a whole, (C) that there is no action, suit, investigation or
proceeding pending or, to the knowledge of the Borrower, threatened in any court or before
any arbitrator or Governmental Authority that would reasonably be expected to have a
Material Adverse Effect, (D) a calculation of the financial covenants in Section
7.11 as of the last day of the fiscal quarter of the Borrower most recently ended prior
to the Closing Date and (E) that no consents, licenses or approvals are required in
connection with the consummation by the Borrower of the transaction contemplated hereby and
the execution, delivery and performance by the Borrower and the validity against the
Borrower of the Loan Documents to which it is a party; and




     (vi) such other assurances, certificates, documents, consents or opinions as the
Administrative Agent or any Lender reasonably may require.



     (b) All fees required to be paid to the Administrative Agent on or before the Closing Date
shall have been paid and (ii) all fees required to be paid to the Lenders on or before the Closing
Date shall have been paid.



     (c) Unless waived by the Administrative Agent, the Borrower shall have paid all fees, charges
and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by
the Administrative Agent) to the extent invoiced prior to or on the Closing Date,



35









 




plus such additional amounts of such fees, charges and disbursements as shall constitute its
reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it
through the closing proceedings (provided that such estimate shall not thereafter preclude
a final settling of accounts between the Borrower and the Administrative Agent).



Without limiting the generality of the provisions of the last paragraph of Section 10.03,
for purposes of determining compliance with the conditions specified in this Section 4.01,
each Lender that has signed this Agreement shall be deemed to have consented to, approved or
accepted or to be satisfied with, each document or other matter required thereunder to be consented
to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall
have received notice from such Lender prior to the proposed Closing Date specifying its objection
thereto.




     4.02 Conditions to Initial Borrowing. The obligation of each Lender to make its
initial Borrowing hereunder is subject to satisfaction of the following conditions precedent:



     (a) The Administrative Agent’s receipt of the following, each of which shall be originals,
“pdfs” or telecopies (followed promptly by originals) unless otherwise specified, each properly
executed by a Responsible Officer, each dated the date of such delivery and each in form and
substance reasonably satisfactory to the Administrative Agent and each of the Lenders:




     (i) an amended and restated pledge agreement, in substantially the form of Exhibit
E (together with each other pledge agreement supplement delivered in connection
therewith, in each case as amended, the “Pledge Agreement”), duly executed by the
Borrower, together with:




     (A) certificates representing the pledged equity referred to therein accompanied by
undated stock powers executed in blank, and




     (B) evidence of the completion of all other actions, recordings and filings of or with
respect to the Pledge Agreement that the Administrative Agent may deem necessary or
desirable in order to perfect the Liens created thereby; and




     (ii) a favorable opinion of Sidley Austin LLP, counsel to the Borrower, addressed to
the Administrative Agent and each Lender, as to matters concerning the Borrower and the Loan
Documents as the Required Lenders may reasonably request.



     4.03 Conditions to all Borrowings. The obligation of each Lender to honor any Request
for Borrowing (other than a Loan Notice requesting only a conversion of Loans to the other Type, or
a continuation of Eurodollar Rate Loans) is subject to the following conditions precedent:



     (a) The representations and warranties of the Borrower contained in Article V or any
other Loan Document, or which are contained in any document furnished at any time under or in
connection herewith or therewith, shall be true and correct in all material respects on and as of
the date of such Borrowing, except to the extent that such representations and warranties
specifically refer to an earlier date, in which case they shall be true and correct in all material
respects as of such earlier date, and except that for purposes of this Section 4.03, the



36









 




representations and warranties contained in Sections 5.05(a) and (b) shall be
deemed to refer to the most recent statements furnished pursuant to Sections 6.01(a) and
(b), respectively.




     (b) No Default shall exist, or would result from such proposed Borrowing or from the
application of the proceeds thereof.



     (c) The Administrative Agent shall have received a Request for Borrowing in accordance with
the requirements hereof.



     Each Request for Borrowing (other than a Loan Notice requesting only a conversion of Loans to
the other Type or a continuation of Eurodollar Rate Loans) submitted by the Borrower shall be
deemed to be a representation and warranty that the conditions specified in Sections 4.03(a)
and (b) have been satisfied on and as of the date of the applicable Borrowing.



ARTICLE V

REPRESENTATIONS AND WARRANTIES




     The Borrower represents and warrants to the Administrative Agent and the Lenders that:



     5.01 Existence, Qualification and Power. The Borrower and each of its Material
Subsidiaries (a) is duly organized or formed, validly existing and, as applicable, in good standing
under the Laws of the jurisdiction of its incorporation or organization, (b) has all requisite
power and authority and all requisite governmental licenses, authorizations, consents and approvals
to (i) own or lease its assets and carry on its business and (ii) execute, deliver and perform its
obligations under the Loan Documents to which it is a party and (c) is duly qualified and is
licensed and, as applicable, in good standing under the Laws of each jurisdiction where its
ownership, lease or operation of properties or the conduct of its business requires such
qualification or license; except in each case referred to in clause (b)(i) or (c), to the extent
that failure to do so could not reasonably be expected to have a Material Adverse Effect.



     5.02 Authorization; No Contravention. The execution, delivery and performance by the
Borrower of each Loan Document to which it is or is to be a party have been duly authorized by all
necessary corporate or other organizational action, and do not and will not (a) contravene the
terms of any of its Organization Documents; (b) conflict with or result in any breach or
contravention of, or the creation of any Lien under, or require any payment to be made under (i)
any material Contractual Obligation to which the Borrower is a party or affecting the Borrower or
the properties of the Borrower or any of its Subsidiaries or (ii) any order, injunction, writ or
decree of any Governmental Authority or any arbitral award to which the Borrower or any of its
Subsidiaries or any of their respective property is subject; or (c) violate any Law.



     5.03 Governmental Authorization; Other Consents. No approval, consent, exemption,
authorization, or other action by, or notice to, or filing with, any Governmental Authority or any
other Person is necessary or required in connection with (a) the execution, delivery or performance
by, or enforcement against, the Borrower of this Agreement or any other Loan Document, (b) the
grant by the Borrower of the Liens granted by it pursuant to the Collateral Documents, (c) the
perfection or maintenance of the Liens created under the Collateral Documents (including the first
priority nature thereof) other than (x) the UCC-1 financing statements described on Schedule
4.01 hereto or (y) except as set forth on Schedule 5.03 hereof,



37









 




the exercise by the Administrative Agent or any Lender of its rights under the Loan Documents
or the remedies in respect of the Collateral pursuant to the Collateral Documents.




     5.04 Binding Effect. This Agreement has been, and each other Loan Document, when
delivered hereunder, will have been, duly executed and delivered by the Borrower. This Agreement
constitutes, and each other Loan Document when so delivered will constitute, a legal, valid and
binding obligation of the Borrower, enforceable against the Borrower in accordance with its terms,
subject to applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws
affecting the enforcement of creditors’ rights generally and subject to general principles of
equity, regardless of whether considered in a proceeding in equity or at law.



     5.05 Financial Statements; No Material Adverse Effect. (a) The Audited Financial
Statements (i) were prepared in accordance with GAAP consistently applied throughout the period
covered thereby, except as otherwise expressly noted therein; (ii) fairly present the consolidated
financial condition of the Borrower as of the date thereof and their results of operations for the
period covered thereby in accordance with GAAP consistently applied throughout the period covered
thereby, except as otherwise expressly noted therein; and (iii) show all material indebtedness and
other liabilities, direct or contingent, of the Borrower and its Subsidiaries as of the date
thereof, including liabilities for taxes, material commitments and Indebtedness.



     (b) The consolidated unaudited balance sheet of the Borrower dated June 30, 2009, and the
related statements of income or operations, shareholders’ equity and cash flows for the fiscal
quarter ended on that date (i) were prepared in accordance with GAAP consistently applied
throughout the period covered thereby, except as otherwise expressly noted therein and (ii) fairly
present the financial condition of the Borrower or such Subsidiary, as the case may be, as of the
date thereof and their results of operations for the period covered thereby, subject, in the case
of clauses (i) and (ii), to the absence of footnotes and to normal year-end audit adjustments.



     (c) Since the date of the Audited Financial Statements, there has been no event or
circumstance, either individually or in the aggregate, that has had or could reasonably be expected
to have a Material Adverse Effect. As of the Closing Date, there has been no event or
circumstance, either individually or in the aggregate, that has had or could reasonably be expected
to result in a material adverse change in or have a material adverse effect upon the prospects of
the Borrower or the Borrower and its Subsidiaries taken as a whole.



     5.06 Litigation. There are no actions, suits, proceedings, claims or disputes pending
or, to the knowledge of the Borrower after due and diligent investigation, threatened or
contemplated, at law, in equity, in arbitration or before any Governmental Authority, by or against
the Borrower or any of its Subsidiaries or against any of their properties or revenues that (a)
purport to affect or pertain to this Agreement or any other Loan Document or (b) either
individually or in the aggregate, are reasonably expected to be determined adversely and, if
determined adversely, could reasonably be expected to have a Material Adverse Effect.



     5.07 No Default. Neither the Borrower nor any Subsidiary thereof is in default under
or with respect to, or a party to, any Contractual Obligation that could, either individually or in
the aggregate, reasonably be expected to have a Material Adverse Effect. No Default has occurred



38









 




and is continuing or would result from the consummation of the transactions contemplated by
this Agreement or any other Loan Document.




     5.08 Ownership of Property. The Borrower and each of its Subsidiaries has good record
and marketable title in fee simple to, or valid leasehold interests in, all real property necessary
or used in the ordinary conduct of its business, except for such defects in title as could not,
individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.



     5.09 Environmental Compliance. The Borrower and its Subsidiaries conduct in the
ordinary course of business a review of the effect of existing Environmental Laws and claims
alleging potential liability or responsibility for violation of any Environmental Law on their
respective businesses, operations and properties, and as a result thereof the Borrower has
reasonably concluded that such Environmental Laws and claims could not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect.



     5.10 Insurance. The properties of the Borrower and its Subsidiaries are insured with
financially sound and reputable insurance companies not Affiliates of the Borrower, in such
amounts, with such deductibles and covering such risks as are customarily carried by companies
engaged in similar businesses and owning similar properties in localities where the Borrower or the
applicable Subsidiary operates.



     5.11 Taxes. The Borrower and its Subsidiaries have filed (or has received appropriate
extensions) all Federal, state and other material tax returns and reports required to be filed, and
have paid all Federal, state and other material taxes, assessments, fees and other governmental
charges levied or imposed upon them or their properties, income or assets otherwise due and
payable, except (i) those which are being contested in good faith by appropriate proceedings
diligently conducted and for which adequate reserves have been provided in accordance with GAAP and
(ii) the filing of state tax returns and reports and the payment of related taxes, assessments,
fees and other governmental charges levied or imposed that would not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect. There is no proposed tax
assessment against the Borrower or any Subsidiary that would, if made, have a Material Adverse
Effect. Neither the Borrower nor any Subsidiary thereof is party to any tax sharing agreement.



     5.12 ERISA Compliance. (a) Each Plan is in compliance in all material respects with
the applicable provisions of ERISA, the Code and other Federal or state Laws. Each Plan that is
intended to qualify under Section 401(a) of the Code has received a favorable determination letter
from the IRS or an application for such a letter is currently being processed by the IRS with
respect thereto and, to the best knowledge of the Borrower, nothing has occurred which would
prevent, or cause the loss of, such qualification. The Borrower and each ERISA Affiliate have made
all required contributions to each Plan subject to Section 412 of the Code, and no application for
a funding waiver or an extension of any amortization period pursuant to Section 412 of the Code has
been made with respect to any Plan.



     (b) There are no pending or, to the best knowledge of the Borrower, threatened claims, actions
or lawsuits, or action by any Governmental Authority, with respect to any Plan that could
reasonably be expected to have a Material Adverse Effect. There has been no




39












 




prohibited transaction or violation of the fiduciary responsibility rules with respect to any
Plan that has resulted or could reasonably be expected to result in a Material Adverse Effect.




     (c) (i) Except where event, action or failure to act could reasonably be expected to have a
Material Adverse Effect, no ERISA Event has occurred or is reasonably expected to occur; (ii) no
Pension Plan has any Unfunded Pension Liability; (iii) neither the Borrower nor any ERISA Affiliate
has incurred, or reasonably expects to incur, any liability under Title IV of ERISA with respect to
any Pension Plan (other than premiums due and not delinquent under Section 4007 of ERISA); (iv)
neither the Borrower nor any ERISA Affiliate has incurred, or reasonably expects to incur, any
liability (and no event has occurred which, with the giving of notice under Section 4219 of ERISA,
would result in such liability) under Section 4201 or 4243 of ERISA with respect to a Multiemployer
Plan; and (v) neither the Borrower nor any ERISA Affiliate has engaged in a transaction that could
be subject to Section 4069 or 4212(c) of ERISA.



     5.13 Subsidiaries; Equity Interests; Borrower. As of the Closing Date, the Borrower
has no Subsidiaries other than those specifically disclosed (or otherwise referenced) in Part (a)
of Schedule 5.13, and all of the outstanding Equity Interests in such Subsidiaries have
been validly issued, are fully paid and non-assessable and are owned by the Borrower in the amounts
specified on Part (a) of Schedule 5.13. The Borrower’s Equity Interests in the Subsidiary
Banks identified in Part (b) of Schedule 5.13 are free and clear of all Liens except those
created under the Collateral Documents. The Borrower has no equity investments in any other
corporation or entity other than those specifically disclosed in Part (c) of Schedule 5.13.
Set forth on Part (d) of Schedule 5.13 is a complete and accurate list of the Borrower and
its Subsidiaries (other than the “LLCs” referenced therein), as of the Closing Date, of the
jurisdiction of its incorporation, the address of its principal place of business and its U.S.
taxpayer identification number and the applicable primary banking Governmental Authority, if any,
which regulates such Person.



     5.14 Margin Regulations; Investment Company Act. (a) The Borrower is not engaged and
will not engage, principally or as one of its important activities, in the business of purchasing
or carrying margin stock (within the meaning of Regulation U issued by the FRB), or extending
credit for the purpose of purchasing or carrying margin stock.



     (b) None of the Borrower, any Person Controlling the Borrower or any Subsidiary is or is
required to be registered as an “investment company” under the Investment Company Act of 1940.



     5.15 Disclosure. As of the Closing Date, the Borrower has disclosed to the
Administrative Agent and the Lenders (i) all agreements, instruments and corporate or other
restrictions to which it or any of its Subsidiaries is subject, the termination of which could
reasonably be expected to result in a Material Adverse Effect and (ii) all matters known to it,
that, individually or in the aggregate, could reasonably be expected to result in a Material
Adverse Effect. No report, financial statement, certificate or other information furnished
(whether in writing or orally) by or on behalf of the Borrower to the Administrative Agent or any
Lender in connection with the transactions contemplated hereby and the negotiation of this
Agreement or delivered hereunder or under any other Loan Document (in each case as modified or
supplemented by other information so furnished) contains any material misstatement of fact or omits
to state any material fact necessary to make the statements therein, in the light of the



40









 




circumstances under which they were made, not misleading; provided that, with respect
to projected financial information, the Borrower represents only that such information was prepared
in good faith based upon assumptions believed to be reasonable at the time.




     5.16 Compliance with Laws. The Borrower and each Subsidiary thereof is in compliance
in all material respects with the requirements of all Laws and all orders, writs, injunctions and
decrees applicable to it or to its properties, except in such instances in which (a) such
requirement of Law or order, writ, injunction or decree is being contested in good faith by
appropriate proceedings diligently conducted or (b) the failure to comply therewith, either
individually or in the aggregate, could not reasonably be expected to have a Material Adverse
Effect.



     5.17 Solvency. The Borrower is, individually and together with its Subsidiaries on a
consolidated basis, Solvent.



     5.18 Taxpayer Identification Number. The Borrower’s true and correct U.S. taxpayer
identification number is 36-3873352.



ARTICLE VI

AFFIRMATIVE COVENANTS




     So long as any Lender shall have any Revolving Credit Commitment hereunder, any Loan or other
Obligation hereunder shall remain unpaid or unsatisfied, the Borrower shall, and shall (except in
the case of the covenants set forth in Sections 6.01, 6.02, 6.03,
6.05 and 6.11) cause each Subsidiary to:



     6.01 Financial Statements. Deliver to the Administrative Agent, in form and detail
satisfactory to the Administrative Agent:



     (a) as soon as available, but in any event within 45 days after the end of each of the first
three fiscal quarters of each fiscal year of the Borrower, a consolidated balance sheet of the
Borrower as at the end of such fiscal quarter, the related consolidated statements of income or
operations for such fiscal quarter and for the portion of the Borrower’s fiscal year then ended and
the related consolidated statements of changes in shareholders’ equity for the portion of the
Borrower’s fiscal year then ended, certified by the chief executive officer, chief financial
officer, chief operating officer, treasurer or controller of the Borrower as fairly presenting the
consolidated financial condition, results of operations and shareholders’ equity of the Borrower in
accordance with GAAP, subject only to normal year-end audit adjustments and the absence of
footnotes;



     (b) as soon as practicable, and in no event later than one hundred twenty (120) days after the
end of each fiscal year of the Borrower, a consolidated balance sheet of the Borrower as at the end
of such fiscal year, and the related consolidated statements of income or operations and changes in
shareholders’ equity for such fiscal year, setting forth in each case in comparative form the
figures for the previous fiscal year, all in reasonable detail and prepared in accordance with
GAAP, audited and accompanied by a report and opinion of an independent certified public accountant
of nationally recognized standing reasonably acceptable to the Required Lenders, which report and
opinion shall be prepared in accordance with generally accepted auditing



41









 




standards and shall not be subject to any “going concern” or like qualification or exception
or any qualification or exception as to the scope of such audit;




     (c) promptly upon request by the Administrative Agent (and in any event within five Business
Days after such request), copies of the then current loan/asset watch list, the call reports, the
substandard loan/asset list, the nonperforming loan/asset list and other real estate owned list of
the Subsidiaries; provided, that, unless an Event of Default has occurred and is
continuing, the Borrower shall have no obligation to provide any such lists more frequently than
once per calendar month;



     (d) promptly, and in any event within five Business Days after receiving knowledge thereof,
notice in writing of all charges, assessment, actions, suits and proceedings that are initiated by,
or brought before, any court or governmental department, commission, board or other administrative
agency, in connection with the Borrower or any Subsidiary (other than (i) litigation in the
ordinary course of business which, if adversely decided, would not have a material effect on the
financial condition or operations of the Borrower or such Subsidiary and (ii) any such item which
by its terms, can not be disclosed and neither the Borrower or nor any of its Subsidiaries
requested such non-disclosure); and



     (e) promptly, and in any event within five Business Days after the occurrence thereof, notice
of any other matter which has resulted in a materially adverse change in the financial condition or
operations of the Borrower or the Borrower and its Subsidiaries, taken as a whole;



As to any information contained in materials furnished pursuant to Section 6.02(c), the
Borrower shall not be separately required to furnish such information under Section 6.01(a)
or (b) above, but the foregoing shall not be in derogation of the obligation of the
Borrower to furnish the information and materials described in Sections 6.01(a) and
(b) above at the times specified therein.



     6.02 Certificates; Other Information. Deliver to the Administrative Agent, in form
and detail satisfactory to the Administrative Agent:



     (a) concurrently with the delivery of the financial statements referred to in Sections
6.01(a) and (b) a duly completed Compliance Certificate signed by the chief executive
officer, chief financial officer, chief operating officer, treasurer or controller of the Borrower;



     (b) promptly, and in any event within five Business Days after any request by the
Administrative Agent or any Lender, copies of any detailed audit reports, management letters or
recommendations submitted to the board of directors (or the audit committee of the board of
directors) of the Borrower by independent accountants in connection with the accounts or books of
the Borrower or any of its Subsidiaries, or any audit of any of them;



     (c) promptly, and in any event within five Business Days after the same are available, copies
of each annual report, proxy or financial statement or other report or communication sent to the
stockholders of the Borrower, and copies of all annual, regular, periodic and special reports and
registration statements which the Borrower may file or be required to file with the SEC under
Section 13 or 15(d) of the Securities Exchange Act of 1934, or with any national



42









 




securities exchange, and in any case not otherwise required to be delivered to the
Administrative Agent pursuant hereto;




     (d) promptly, and in any event within five Business Days after receipt thereof by the Borrower
or any Subsidiary thereof, copies of each notice or other correspondence received from the SEC (or
comparable agency in any applicable non-U.S. jurisdiction) concerning any investigation or possible
investigation or other inquiry by such agency regarding financial or other operational results of
the Borrower or any Subsidiary thereof; and



     (e) promptly (and in any event within five Business Days), such additional information
regarding the business, financial, legal or corporate affairs of the Borrower or any Subsidiary
thereof, or compliance with the terms of the Loan Documents, as the Administrative Agent or any
Lender may from time to time reasonably request.



     Documents required to be delivered pursuant to Section 6.01(a) or (b) or
Section 6.02(c) or (d) (to the extent any such documents are included in materials
otherwise filed with the SEC) may be delivered electronically and if so delivered, shall be deemed
to have been delivered on the date (i) on which the Borrower posts such documents, or provides a
link thereto on the Borrower’s website on the Internet at the website address listed on
Schedule 11.02; or (ii) on which such documents are posted on the Borrower’s behalf on an
Internet or intranet website, if any, to which each Lender and the Administrative Agent have access
(whether a commercial, third-party website or whether sponsored by the Administrative Agent);
provided that: (i) upon request, the Borrower shall deliver paper copies of any such
documents to the Administrative Agent or any Lender that requests the Borrower to deliver such
paper copies and (ii) the Borrower shall notify the Administrative Agent and each Lender (by
telecopier or electronic mail) of the posting of any such documents and, upon request, provide to
the Administrative Agent by electronic mail, electronic versions (i.e., soft copies) of
such documents. Notwithstanding anything contained herein, in every instance the Borrower shall be
required to provide paper copies of the Compliance Certificates required by Section 6.02(b)
to the Administrative Agent. Except for such Compliance Certificates, the Administrative Agent
shall have no obligation to request the delivery or to maintain copies of the documents referred to
above, and in any event shall have no responsibility to monitor compliance by the Borrower with any
such request for delivery, and each Lender shall be solely responsible for requesting delivery to
it or maintaining its copies of such documents.



     The Borrower hereby acknowledges that (a) the Administrative Agent will make available to the
Lenders materials and/or information provided by or on behalf of the Borrower hereunder
(collectively, “Borrower Materials”) by posting the Borrower Materials on IntraLinks or
another similar electronic system (the “Platform”) and (b) certain of the Lenders (each, a
“Public Lender”) may have personnel who do not wish to receive material non-public
information with respect to the Borrower or its Affiliates, or the respective securities of any of
the foregoing, and who may be engaged in investment and other market-related activities with
respect to such Persons’ securities. The Borrower hereby agrees that it will use commercially
reasonable efforts to identify that portion of the Borrower Materials that may be distributed to
the Public Lenders and that (w) all such Borrower Materials shall be clearly and conspicuously
marked “PUBLIC” which, at a minimum, shall mean that the word “PUBLIC” shall appear prominently on
the first page thereof; (x) by marking Borrower Materials “PUBLIC,” the



43









 




Borrower shall be deemed to have authorized the Administrative Agent and the Lenders to treat
such Borrower Materials as not containing any material non-public information (although it may be
sensitive and proprietary) with respect to the Borrower or its securities for purposes of United
States Federal and state securities laws (provided, however, that to the extent
such Borrower Materials constitute Information, they shall be treated as set forth in Section
11.07); (y) all Borrower Materials marked “PUBLIC” are permitted to be made available through a
portion of the Platform designated “Public Side Information;” and (z) the Administrative Agent
shall be entitled to treat any Borrower Materials that are not marked “PUBLIC” as being suitable
only for posting on a portion of the Platform not designated “Public Side Information.”
Notwithstanding the foregoing, the Borrower shall be under no obligation to mark any Borrower
Materials “PUBLIC”.




     6.03 Notices. Promptly (and in any event within five Business Days) notify the
Administrative Agent:



     (a) of a Responsible Officer’s knowledge of the occurrence of any Default;



     (b) of any matter that has resulted or could reasonably be expected to result in a Material
Adverse Effect;



     (c) of the occurrence of any ERISA Event; and



     (d) of any material change in accounting policies or financial reporting practices by the
Borrower or any Subsidiary thereof other than as a result of a change in GAAP.



     Each notice pursuant to Section 6.03 shall be accompanied by a statement of a
Responsible Officer of the Borrower setting forth details of the occurrence referred to therein and
stating what action the Borrower has taken and proposes to take with respect thereto. Each notice
pursuant to Section 6.03(a) shall describe with particularity any and all provisions of
this Agreement and any other Loan Document that have been breached.



     6.04 Payment of Obligations. Pay and discharge as the same shall become due and
payable, all its obligations and liabilities, including (a) all tax liabilities, assessments and
governmental charges or levies upon it or its properties or assets, unless the same are being
contested in good faith by appropriate proceedings diligently conducted and adequate reserves in
accordance with GAAP are being maintained by the Borrower or such Subsidiary; (b) all lawful claims
which, if unpaid, would by law become a Lien upon its property; and (c) all Indebtedness, as and
when due and payable, but subject to any subordination provisions contained in any instrument or
agreement evidencing such Indebtedness.



     6.05 Preservation of Existence, Etc. With respect to itself, each Subsidiary Bank
and each Material Subsidiary: (a) preserve, renew and maintain in full force and effect its legal
existence and good standing under the Laws of the jurisdiction of its organization except in a
transaction permitted by Section 7.04 or 7.05; (b) take all reasonable action to
maintain all rights, privileges, permits, licenses and franchises necessary or desirable in the
normal conduct of its business, except to the extent that failure to do so could not reasonably be
expected to have a Material Adverse Effect; and (c) preserve or renew all of its registered
patents, trademarks, trade



44









 




names and service marks, the non-preservation of which could reasonably be expected to have a
Material Adverse Effect.




     6.06 Maintenance of Properties. (a) Maintain, preserve and protect all of its
material properties and equipment necessary in the operation of its business in good working order
and condition, ordinary wear and tear excepted; and (b) make all necessary repairs thereto and
renewals and replacements thereof except where the failure to do so could not reasonably be
expected to have a Material Adverse Effect.



     6.07 Maintenance of Insurance. Maintain with financially sound and reputable
insurance companies not Affiliates of the Borrower, insurance with respect to its properties and
business against loss or damage of the kinds customarily insured against by Persons engaged in the
same or similar business, of such types and in such amounts as are customarily carried under
similar circumstances by such other Persons.



     6.08 Compliance with Laws. Comply in all material respects with the requirements of
all Laws and all orders, writs, injunctions and decrees applicable to it or to its business or
property, except in such instances in which (a) such requirement of Law or order, writ, injunction
or decree is being contested in good faith by appropriate proceedings diligently conducted; or (b)
the failure to comply therewith could not reasonably be expected to have a Material Adverse Effect.



     6.09 Books and Records. (a) Maintain proper books of record and account, in which
full, true and correct in all material respects entries in conformity with GAAP consistently
applied shall be made of all financial transactions and matters involving the assets and business
of the Borrower or such Subsidiary, as the case may be; and (b) maintain such books of record and
account in material conformity with all applicable requirements of any Governmental Authority
having regulatory jurisdiction over the Borrower or such Subsidiary, as the case may be.



     6.10 Inspection Rights. Permit representatives and independent contractors of the
Administrative Agent and each Lender to visit and inspect any of its properties, to examine its
corporate, financial and operating records, and make copies thereof or abstracts therefrom, and to
discuss its affairs, finances and accounts with its directors, officers, and independent public
accountants, all at the expense of the Borrower and at such reasonable times during normal business
hours and as often as may be reasonably desired, upon reasonable advance notice to the Borrower;
provided, however, that when an Event of Default is continuing the Administrative
Agent or any Lender (or any of their respective representatives or independent contractors) may do
any of the foregoing at the expense of the Borrower at any time during normal business hours and
without advance notice; provided, further, that, so long as no Event of Default has
occurred and is continuing, the Borrower shall have no obligation to pay for more than one visit,
inspection or examination during any calendar year.



     6.11 Use of Proceeds. Use the proceeds of the Borrowings for general corporate
purposes not in contravention of any Law or of any Loan Document.



45









 





     6.12 Further Assurances. Promptly upon request by the Administrative Agent, or any
Lender through the Administrative Agent, (a) correct any material defect or error that may be
discovered in any Loan Document or in the execution, acknowledgment, filing or recordation thereof
and (b) do, execute, acknowledge, deliver, record, re-record, file, re-file, register and
re-register any and all such further acts, deeds, certificates, assurances and other instruments as
the Administrative Agent, or any Lender through the Administrative Agent, may reasonably require
from time to time in order to (i) carry out more effectively the purposes of the Loan Documents,
(ii) to the fullest extent permitted by applicable law, subject the Borrower’s or any of its
Subsidiaries’ properties, assets, rights or interests to the Liens now or hereafter intended to be
covered by any of the Collateral Documents, (iii) perfect and maintain the validity, effectiveness
and priority of any of the Collateral Documents and any of the Liens intended to be created
thereunder and (iv) assure, convey, grant, assign, transfer, preserve, protect and confirm more
effectively unto the Secured Parties the rights granted or now or hereafter intended to be granted
to the Secured Parties under any Loan Document or under any other instrument executed in connection
with any Loan Document to which the Borrower or any of its Subsidiaries is or is to be a party, and
cause each of its Subsidiaries to do so.



     6.13 Material Contracts. Perform and observe all the terms and provisions of each
Material Contract to be performed or observed by it, maintain each such Material Contract in full
force and effect, enforce each such Material Contract in accordance with its terms, take all such
action to such end as may be from time to time requested by the Administrative Agent and, upon
request of the Administrative Agent, make to each other party to each such Material Contract such
demands and requests for information and reports or for action as the Borrower or any of its
Subsidiaries is entitled to make under such Material Contract, and cause each of its Subsidiaries
to do so, except, in any case, where the failure to do so, either individually or in the aggregate,
could not reasonably be expected to have a Material Adverse Effect.



ARTICLE VII

NEGATIVE COVENANTS




     So long as any Lender shall have any Revolving Credit Commitment hereunder or any Loan or
other Obligation hereunder shall remain unpaid or unsatisfied, the Borrower shall not, nor shall it
permit any Nonbank Subsidiary to, directly or indirectly:



     7.01 Liens. Create, incur, assume or suffer to exist any Lien upon any of its
property, assets or revenues, whether now owned or hereafter acquired, other than the following:



     (a) Liens pursuant to any Loan Document;



     (b) Liens existing on the date hereof and listed on Schedule 7.01 and any renewals or
extensions thereof, provided that (i) the property covered thereby is not changed, (ii) the
amount secured or benefited thereby is not increased except as contemplated by Section
7.02(d), (iii) the direct or any contingent obligor with respect thereto is not changed and
(iv) any renewal or extension of the obligations secured or benefited thereby is permitted by
Section 7.02(d);



46









 





     (c) Liens for taxes not yet due or which are being contested in good faith and by appropriate
proceedings diligently conducted, if adequate reserves with respect thereto are maintained on the
books of the applicable Person in accordance with GAAP;



     (d) carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s or other like Liens
arising in the ordinary course of business which are not overdue for a period of more than 30 days
or which are being contested in good faith and by appropriate proceedings diligently conducted, if
adequate reserves with respect thereto are maintained on the books of the applicable Person;



     (e) pledges or deposits in the ordinary course of business in connection with workers’
compensation, unemployment insurance and other social security legislation, other than any Lien
imposed by ERISA;



     (f) deposits to secure the performance of bids, trade contracts and leases (other than
Indebtedness), statutory obligations, surety and appeal bonds, performance bonds and other
obligations of a like nature incurred in the ordinary course of business;



     (g) easements, rights-of-way, restrictions and other similar encumbrances affecting real
property which, in the aggregate, are not substantial in amount, and which do not in any case
materially detract from the value of the property subject thereto or materially interfere with the
ordinary conduct of the business of the applicable Person;



     (h) Liens securing judgments for the payment of money not constituting an Event of Default
under Section 9.01(h);



     (i) other Liens securing Indebtedness outstanding in an aggregate principal amount not to
exceed $25,000,000, provided that no such Lien shall extend to or cover any Equity
Interests of any Subsidiary Bank; and



     (j) the replacement, extension or renewal of any Lien permitted by clauses (a) through (i)
above upon or in the same property theretofore subject thereto or the replacement, extension or
renewal (without increase in the amount or change in any direct or contingent obligor) of the
Indebtedness secured thereby.



     7.02 Indebtedness. Create, incur, assume or suffer to exist any Indebtedness, except:



     (a) obligations (contingent or otherwise) existing or arising under any Swap Contract,
provided that such obligations are (or were) entered into by such Person in the ordinary
course of business for the purpose of directly mitigating risks associated with fluctuations in
interest rates;



     (b) Indebtedness evidenced by the Subordinated Notes;



     (c) Indebtedness under the Loan Documents;



     (d) Indebtedness outstanding on the date hereof and listed on Schedule 7.02 and any
refinancings, refundings, renewals or extensions thereof; provided that the amount of such
Indebtedness is not increased at the time of such refinancing, refunding, renewal or extension



47









 




except by an amount equal to a reasonable premium or other reasonable amount paid, and fees
and expenses reasonably incurred, in connection with such refinancing and by an amount equal to any
existing commitments unutilized thereunder and the direct or any contingent obligor with respect
thereto is not changed, as a result of or in connection with such refinancing, refunding, renewal
or extension; and provided, still further, that the terms relating to
principal amount, amortization, maturity, collateral (if any) and subordination (if any), and other
material terms taken as a whole, of any such refinancing, refunding, renewing or extending
Indebtedness, and of any agreement entered into and of any instrument issued in connection
therewith, are no less favorable in any material respect to the Borrower or the Lenders than the
terms of any agreement or instrument governing the Indebtedness being refinanced, refunded, renewed
or extended and the interest rate applicable to any such refinancing, refunding, renewing or
extending Indebtedness does not exceed the then applicable market interest rate; and




     (e) other Indebtedness in an aggregate principal amount not to exceed $25,000,000 at any time
outstanding.



     7.03 Investments. Make or hold any Investments, except:



     (a) Investments (other than any Acquisition) which are made in accordance with (i) applicable
Law and (ii) any other applicable order, regulation, agreement or memorandum of understanding
entered into with or issued by any Governmental Authority charged with the regulation of bank
holding companies or depository institutions; and



     (b) Acquisitions permitted pursuant to Section 7.11.



     7.04 Fundamental Changes. Merge, dissolve, liquidate, consolidate with or into
another Person or Dispose of (whether in one transaction or in a series of transactions) all or
substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any
Person (each, a “Fundamental Change”) or permit any Subsidiary Bank to make any Fundamental Change,
except that (a) any Subsidiary may merge or consolidate with or into the Borrower and (b) any
Subsidiary may merge or consolidate with or into (or transfer all or substantially all of its
assets to) any other Subsidiary; provided, however, that if either such Subsidiary
is a Pledged Subsidiary, then the surviving entity shall be such Pledged Subsidiary.



     7.05 Dispositions. Make any Disposition or enter into any agreement to make any
Disposition, except:



     (a) Dispositions of obsolete or worn out property, whether now owned or hereafter acquired, in
the ordinary course of business;



     (b) Dispositions permitted pursuant to Section 7.04; and



     (c) Dispositions not otherwise permitted under this Section 7.05; provided
that (i) at the time of such Disposition, no Default shall exist or would result from such
Disposition, and (ii) the aggregate book value of all property Disposed of in reliance on this
clause (c) in any fiscal year shall not exceed 10% of the Borrower’s Total Assets;


provided, however, that any Disposition pursuant to this Section shall be for
fair market value.




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     7.06 Restricted Payments. Declare or make, directly or indirectly, any Restricted
Payment, or incur any obligation (contingent or otherwise) to do so, except that, so long as no
Default shall have occurred and be continuing at the time of any action described below or would
result therefrom, the Borrower may declare and make cash dividend payments on its Equity Interests
or declare and make dividend payments or other distributions payable solely in the Equity Interests
of the Borrower.



     7.07 Change in Nature of Business. Engage in any material line of business
substantially different from those lines of business conducted by the Borrower and its Subsidiaries
on the date hereof or any business substantially related or incidental thereto.



     7.08 Transactions with Affiliates. Enter into any transaction of any kind with any
Affiliate of the Borrower (other than any transaction between any Subsidiary and (x) another
Subsidiary or (y) the Borrower), whether or not in the ordinary course of business, other than on
fair and reasonable terms substantially as favorable to the Borrower or such Subsidiary as would be
obtainable by the Borrower or such Subsidiary at the time in a comparable arm’s length transaction
with a Person other than an Affiliate.



     7.09 Burdensome Agreements. Other than any Contractual Obligation of (or imposed by)
any Governmental Authority (including any banking regulatory authority), enter into or permit to
exist any Contractual Obligation (other than this Agreement or any other Loan Document) that (a)
limits the ability (i) of any Subsidiary (other than any Specified Subsidiary) to make Restricted
Payments to the Borrower or to otherwise transfer property to or invest in the Borrower, (ii) of
any Subsidiary to Guarantee the Indebtedness of the Borrower (other than any Specified Subsidiary)
or (iii) of the Borrower or any Subsidiary (other than any Specified Subsidiary) to create, incur,
assume or suffer to exist Liens on property of such Person; provided, however, that
this clause (iii) shall not prohibit any negative pledge incurred or provided in favor of any
holder of Indebtedness permitted under Section 7.02(i) solely to the extent any such
negative pledge relates to the property financed by or the subject of such Indebtedness; or (b)
requires the grant of a Lien to secure an obligation of such Person if a Lien is granted to secure
another obligation of such Person.



     7.10 Use of Proceeds. Use the proceeds of any Borrowing, whether directly or
indirectly, to purchase or carry margin stock (within the meaning of Regulation U of the FRB) or to
extend credit to others for the purpose of purchasing or carrying margin stock or to refund
indebtedness originally incurred for such purpose.



     7.11 Acquisitions. Make any Acquisition other than Acquisitions of banks or other
depositary institutions provided that (a) at the time of such Acquisition, no Default shall exist
or would result from such Acquisition and (b) the aggregate purchase price paid for all
Acquisitions since the Closing Date (including the proposed Acquisition) does not exceed 10% of the
Borrower’s Total Assets at the time such Acquisition is made.



ARTICLE VIII

FINANCIAL COVENANTS




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     So long as any Lender shall have any Revolving Credit Commitment hereunder or any Loan or
other Obligation hereunder shall remain unpaid or unsatisfied, the Borrower shall:



     (a) Cause each Subsidiary Bank to be “well capitalized,” in each case in accordance with the
rules and regulations of its respective primary federal regulator, as in effect from time to time.



     (b) On and after December 31, 2009, maintain a Return on Assets of not less than 0.25%.



     (c) Maintain at all times Tangible Equity Capital of at least $670,000,000.



     (d) On a consolidated basis, maintain, as of the last day of each calendar month, a ratio of
Nonperforming Assets to Primary Capital of not more than 30%.



     (e) On a consolidated basis, maintain at all times a Loan Loss Reserve Ratio of not less than
0.65%.



     (f) Maintain, as of the last day of each calendar month, a ratio of Bank Investments to Net
Worth of not more than 1.25 to 1.00.



     (g) Maintain at the Borrower at all times at least $10,000,000, in the aggregate, in
unencumbered cash, cash equivalents and available for sale securities.



ARTICLE IX

EVENTS OF DEFAULT AND REMEDIES




     9.01 Events of Default. Any of the following shall constitute an Event of Default:



     (a) Non-Payment. The Borrower fails to (i) pay when and as required to be paid
herein, any amount of principal of any Loan, or (ii) pay within three days after the same becomes
due, any interest on any Loan, or any fee due hereunder, or (iii) pay within five days after the
same becomes due, any other amount payable hereunder or under any other Loan Document; or



     (b) Specific Covenants. The Borrower fails to perform or observe any term, covenant
or agreement contained in any of Section 6.01, 6.02, 6.03, 6.10, or
6.11, Article VII or Article VIII; or



     (c) Other Defaults. The Borrower fails to perform or observe any other covenant or
agreement (not specified in Section 9.01(a) or (b) above) contained in any Loan
Document on its part to be performed or observed and such failure continues for 30 days after (x)
the Borrower receives notice from the Administrative Agent of such failure or (y) the Borrower knew
or should have known of such failure; or



     (d) Representations and Warranties. Any representation, warranty, certification or
statement of fact made or deemed made by or on behalf of the Borrower herein, in any other Loan
Document, or in any document delivered in connection herewith or therewith shall be incorrect or
misleading in any material respect when made or deemed made; or



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     (e) Cross-Default. (i) The Borrower or any Subsidiary thereof (A) fails to make any
payment when due (whether by scheduled maturity, required prepayment, acceleration, demand, or
otherwise) in respect of any Indebtedness or Guarantee (other than Indebtedness hereunder and
Indebtedness under Swap Contracts) having an aggregate principal amount (including undrawn
committed or available amounts and including amounts owing to all creditors under any combined or
syndicated credit arrangement) of more than the Threshold Amount, or (B) fails to observe or
perform any other agreement or condition relating to any such Indebtedness or Guarantee or
contained in any instrument or agreement evidencing, securing or relating thereto, or any other
event occurs, the effect of which default or other event is to cause, or to permit the holder or
holders of such Indebtedness or the beneficiary or beneficiaries of such Guarantee (or a trustee or
agent on behalf of such holder or holders or beneficiary or beneficiaries) to cause, with the
giving of notice if required, such Indebtedness to be demanded or to become due or to be
repurchased, prepaid, defeased or redeemed (automatically or otherwise), or an offer to repurchase,
prepay, defease or redeem such Indebtedness to be made, prior to its stated maturity, or such
Guarantee to become payable or cash collateral in respect thereof to be demanded; or (ii) there
occurs under any Swap Contract an Early Termination Date (as defined in such Swap Contract)
resulting from (A) any event of default under such Swap Contract as to which the Borrower or any
Subsidiary thereof is the Defaulting Party (as defined in such Swap Contract) or (B) any
Termination Event (as so defined) under such Swap Contract as to which the Borrower or any
Subsidiary thereof is an Affected Party (as defined in such Swap Contract) and, in either event,
the Swap Termination Value (as defined in such Swap Contract) owed by the Borrower or such
Subsidiary as a result thereof is greater than the Threshold Amount; or



     (f) Insolvency Proceedings, Etc. The Borrower, any Subsidiary Bank or any Material
Subsidiary thereof institutes or consents to the institution of any proceeding under any Debtor
Relief Law, or makes an assignment for the benefit of creditors; or applies for or consents to the
appointment of any receiver, trustee, custodian, conservator, liquidator, rehabilitator or similar
officer for it or for all or any material part of its property; or any receiver, trustee,
custodian, conservator, liquidator, rehabilitator or similar officer is appointed without the
application or consent of such Person and the appointment continues undischarged or unstayed for 60
calendar days; or any proceeding under any Debtor Relief Law relating to any such Person or to all
or any material part of its property is instituted without the consent of such Person and continues
undismissed or unstayed for 60 calendar days, or an order for relief is entered in any such
proceeding; or



     (g) Inability to Pay Debts; Attachment. (i) The Borrower, any Subsidiary Bank or any
Material Subsidiary thereof becomes unable or admits in writing its inability or fails generally to
pay its debts as they become due, or (ii) any writ or warrant of attachment or execution or similar
process is issued or levied against all or any material part of the property of any such Person and
is not released, vacated or fully bonded within 30 days after its issue or levy; or



     (h) Judgments. There is entered against the Borrower or any Subsidiary thereof (i)
one or more final judgments or orders for the payment of money in an aggregate amount (as to all
such judgments and orders) exceeding the Threshold Amount (to the extent not covered by independent
third-party insurance as to which the insurer is rated at least “A” by A.M. Best Company, has been
notified of the potential claim and does not dispute coverage), or (ii) any one



51









 




or more non-monetary final judgments that have, or could reasonably be expected to have,
individually or in the aggregate, a Material Adverse Effect and, in either case, (A) enforcement
proceedings are commenced by any creditor upon such judgment or order, or (B) there is a period of
30 consecutive days during which a stay of enforcement of such judgment, by reason of a pending
appeal or otherwise, is not in effect; or




     (i) ERISA. (i) An ERISA Event occurs with respect to a Pension Plan or Multiemployer
Plan which has resulted or could reasonably be expected to result in liability of the Borrower
under Title IV of ERISA to the Pension Plan, Multiemployer Plan or the PBGC in an aggregate amount
in excess of the Threshold Amount, or (ii) the Borrower or any ERISA Affiliate fails to pay when
due, after the expiration of any applicable grace period, any installment payment with respect to
its withdrawal liability under Section 4201 of ERISA under a Multiemployer Plan in an aggregate
amount in excess of the Threshold Amount; or



     (j) Invalidity of Loan Documents. Any provision of any Loan Document, at any time
after its execution and delivery and for any reason other than as expressly permitted hereunder or
thereunder or satisfaction in full of all the Obligations, ceases to be in full force and effect;
or any Borrower or any other Person contests in any manner the validity or enforceability of any
provision of any Loan Document; or the Borrower denies that it has any or further liability or
obligation under any provision of any Loan Document, or purports to revoke, terminate or rescind
any provision of any Loan Document; or



     (k) Change of Control. There occurs any Change of Control; or



     (l) Collateral Documents. The Administrative Agent, for the benefit of the Secured
Parties, shall cease to have a first priority perfected security interest in the Collateral; or



     (m) Regulatory Actions. The Board of Governors of the Federal Reserve System, the
FDIC, the Illinois Department of Financial and Professional Regulation or other Governmental
Authority charged with the regulation of bank holding companies or depository institutions: (a) (i)
issues to the Borrower or any Subsidiary Bank or initiates any action, suit or proceeding to obtain
against, impose on or require from Borrower or any Subsidiary Bank, a cease and desist order or
similar regulatory order, the assessment of civil monetary penalties, articles of agreement,
memorandum of understanding, a capital directive, a capital restoration plan, restrictions that
prevent or as a practical matter impair the payment of dividends by any Subsidiary Bank or the
payments of any debt by the Borrower, restrictions that make the payment of the dividends by any
Subsidiary Bank or the payment of debt by the Borrower subject to prior regulatory approval, a
notice or finding under Section 8(a) of the Federal Deposit Insurance Act or any similar
enforcement action, measure or proceeding (each a “Regulatory Action”) or (ii) proposes or
issues to any executive officer or director of the Borrower or any Subsidiary Bank or initiates any
action, suit or proceeding to obtain against, impose on or require from any such officer or
director, a cease and desist order or similar regulatory order, a removal order or suspension order
or the assessment of civil monetary penalties (each an “Officer Directive”); and (b) (x)
such Regulatory Action(s) is in the form of a cease and desist order or similar regulatory order, a
capital directive or a capital restoration plan issued to the Borrower or any Subsidiary Bank
which, in the aggregate, prohibits the payment of dividends by Subsidiary Banks that constitute 25%
or more of Total Assets; (y) such Regulatory Action(s) is in the form



52









 




of a cease and desist order or similar regulatory order, a capital directive or a capital
restoration plan issued to the Borrower or any Subsidiary Bank which, in the aggregate, restrict
the payment of dividends by Subsidiary Banks that constitute 35% or more of Total Assets; or (z)
such Regulatory Action or Officer Directive does not impair the ability of any Subsidiary Bank to
pay dividends and the Subsidiary Banks affected by all such Regulatory Action(s) and Officer
Directives constitute 65% or more of Total Assets. provided, however, that any event that (A) only
requires or suggests a change in capital ratios or (B) would be a Regulatory Action or Officer
Directive that, by its terms, can not be disclosed (and neither the Borrower nor any of its
Subsidiaries requested such non-disclosure), shall not constitute a Regulatory Action or Officer
Directive; or




     (n) Subsidiary Bank Condition. Any Subsidiary Bank is notified that it is considered
an institution in “troubled condition” within the meaning of 12 U.S.C. Section 1831i and the
regulations promulgated thereunder or if a conservator or receiver is appointed for any Subsidiary
Bank.



     (o) Post Closing Conditions. The Borrower shall fail to comply with the requirements
of Section 4.02 on or before November 6, 2009.



     9.02 Remedies upon Event of Default. If any Event of Default occurs and is
continuing, the Administrative Agent shall, at the request of, or may, with the consent of, the
Required Lenders, take any or all of the following actions:



     (a) declare the Revolving Credit Commitment of each Lender to make Revolving Credit Loans to
be terminated, whereupon such Revolving Credit Commitments and obligation shall be terminated;



     (b) declare the unpaid principal amount of all outstanding Loans, all interest accrued and
unpaid thereon, and all other amounts owing or payable hereunder or under any other Loan Document
to be immediately due and payable, without presentment, demand, protest or other notice of any
kind, all of which are hereby expressly waived by the Borrower; and



     (c) exercise on behalf of itself and the Lenders all rights and remedies available to it
and/or the Lenders under the Loan Documents;


provided, however, that upon the occurrence of an actual or deemed entry of an
order for relief with respect to the Borrower under the Bankruptcy Code of the United States, the
obligation of each Lender to make Loans shall automatically terminate, the unpaid principal amount
of all outstanding Loans and all interest and other amounts as aforesaid shall automatically become
due and payable without further act of the Administrative Agent or any Lender.




     9.03 Application of Funds. After the exercise of remedies provided for in Section
9.02 (or after the Loans have automatically become immediately due and payable), any amounts
received on account of the Obligations shall be applied by the Administrative Agent in the
following order:



     First, to payment of that portion of the Obligations constituting fees, indemnities,
expenses and other amounts (including fees, charges and disbursements of counsel to the



53









 




Administrative Agent and amounts payable under Article III) payable to the
Administrative Agent in its capacity as such;




     Second, to payment of that portion of the Obligations constituting fees, indemnities
and other amounts (other than principal and interest) payable to the Lenders (including fees,
charges and disbursements of counsel to the respective Lenders in connection with any enforcement
of the Loan Documents (including fees and time charges for attorneys who may be employees of any
Lender) arising under the Loan Documents and amounts payable under Article III, ratably
among them in proportion to the respective amounts described in this clause Second payable
to them;



     Third, to payment of that portion of the Obligations constituting accrued and unpaid
interest on the Loans and other Obligations arising under the Loan Documents, ratably among the
Lenders in proportion to the respective amounts described in this clause Third payable to
them;



     Fourth, to payment of other amounts secured pursuant to the Pledge Agreement to the
Secured Parties entitled thereto; and



     Last, the balance, if any, after all of the Obligations and other amounts secured
pursuant to the Collateral Documents (other than contingent unliquidated indemnification
obligations which survive the termination of any Loan Document) have been indefeasibly paid in
full, to the Borrower or as otherwise required by Law.



ARTICLE X

ADMINISTRATIVE AGENT




     10.01 Appointment and Authority. (a) Each of the Lenders hereby irrevocably appoints
Bank of America to act on its behalf as the Administrative Agent hereunder and under the other Loan
Documents and authorizes the Administrative Agent to take such actions on its behalf and to
exercise such powers as are delegated to the Administrative Agent by the terms hereof or thereof,
together with such actions and powers as are reasonably incidental thereto. The provisions of this
Article are solely for the benefit of the Administrative Agent and the Lenders, and Borrower shall
not have any rights as a third party beneficiary of any of such provisions.



     (b) The Administrative Agent shall also act as the “collateral agent” under the Loan
Documents, and each of the Lenders hereby irrevocably appoints and authorizes the Administrative
Agent to act as the agent of such Lender for purposes of acquiring, holding and enforcing any and
all Liens on Collateral granted by the Borrower to secure any of the Obligations, together with
such powers and discretion as are reasonably incidental thereto. In this connection, the
Administrative Agent, as “collateral agent” and any co-agents, sub-agents and attorneys-in-fact
appointed by the Administrative Agent pursuant to Section 10.05 for purposes of holding or
enforcing any Lien on the Collateral (or any portion thereof) granted under the Collateral
Documents, or for exercising any rights and remedies thereunder at the direction of the
Administrative Agent), shall be entitled to the benefits of all provisions of this Article
IX and Article XI (including Section 11.04(c), as though such co-agents,
sub-agents and



54









 




attorneys-in-fact were the “collateral agent” under the Loan Documents) as if set forth in
full herein with respect thereto.




     10.02 Rights as a Lender. The Person serving as the Administrative Agent hereunder
shall have the same rights and powers in its capacity as a Lender as any other Lender and may
exercise the same as though it were not the Administrative Agent and the term “Lender” or “Lenders”
shall, unless otherwise expressly indicated or unless the context otherwise requires, include the
Person serving as the Administrative Agent hereunder in its individual capacity. Such Person and
its Affiliates may accept deposits from, lend money to, act as the financial advisor or in any
other advisory capacity for and generally engage in any kind of business with the Borrower or any
Subsidiary or other Affiliate thereof as if such Person were not the Administrative Agent hereunder
and without any duty to account therefor to the Lenders.



     10.03 Exculpatory Provisions. The Administrative Agent shall not have any duties or
obligations except those expressly set forth herein and in the other Loan Documents. Without
limiting the generality of the foregoing, the Administrative Agent:



     (a) shall not be subject to any fiduciary or other implied duties, regardless of whether a
Default has occurred and is continuing;



     (b) shall not have any duty to take any discretionary action or exercise any discretionary
powers, except discretionary rights and powers expressly contemplated hereby or by the other Loan
Documents that the Administrative Agent is required to exercise as directed in writing by the
Required Lenders (or such other number or percentage of the Lenders as shall be expressly provided
for herein or in the other Loan Documents), provided that the Administrative Agent shall
not be required to take any action that, in its opinion or the opinion of its counsel, may expose
the Administrative Agent to liability or that is contrary to any Loan Document or applicable law;



     (c) shall not, except as expressly set forth herein and in the other Loan Documents, have any
duty to disclose, and shall not be liable for the failure to disclose, any information relating to
the Borrower or any of its Affiliates that is communicated to or obtained by the Person serving as
the Administrative Agent or any of its Affiliates in any capacity;



     (d) shall not be liable for any action taken or not taken by it (i) with the consent or at the
request of the Required Lenders (or such other number or percentage of the Lenders as shall be
necessary, or as the Administrative Agent shall believe in good faith shall be necessary, under the
circumstances as provided in Sections 11.01 and 9.02) or (ii) in the absence of its
own gross negligence or willful misconduct. The Administrative Agent shall be deemed not to have
knowledge of any Default unless and until notice describing such Default is given to the
Administrative Agent by the Borrower or a Lender; and



     (e) shall not be responsible for or have any duty to ascertain or inquire into (i) any
statement, warranty or representation made in or in connection with this Agreement or any other
Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder
or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of
the covenants, agreements or other terms or conditions set forth herein or therein or the



55









 




occurrence of any Default, (iv) the validity, enforceability, effectiveness or genuineness of
this Agreement, any other Loan Document or any other agreement, instrument or document, or the
creation, perfection or priority of any Lien purported to be created by the Collateral Documents,
(v) the value or the sufficiency of any Collateral, or (vi) the satisfaction of any condition set
forth in Article IV or elsewhere herein, other than to confirm receipt of items expressly
required to be delivered to the Administrative Agent.




     10.04 Reliance by Administrative Agent. The Administrative Agent shall be entitled to
rely upon, and shall not incur any liability for relying upon, any notice, request, certificate,
consent, statement, instrument, document or other writing (including any electronic message,
Internet or intranet website posting or other distribution) believed by it to be genuine and to
have been signed, sent or otherwise authenticated by the proper Person. The Administrative Agent
also may rely upon any statement made to it orally or by telephone and believed by it to have been
made by the proper Person, and shall not incur any liability for relying thereon. In determining
compliance with any condition hereunder to the making of a Loan, that by its terms must be
fulfilled to the satisfaction of a Lender, the Administrative Agent may presume that such condition
is satisfactory to such Lender unless the Administrative Agent shall have received notice to the
contrary from such Lender prior to the making of such Loan. The Administrative Agent may consult
with legal counsel (who may be counsel for the Borrower), independent accountants and other experts
selected by it, and shall not be liable for any action taken or not taken by it in accordance with
the advice of any such counsel, accountants or experts.



     10.05 Delegation of Duties. The Administrative Agent may perform any and all of its
duties and exercise its rights and powers hereunder or under any other Loan Document by or through
any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any
such sub-agent may perform any and all of its duties and exercise its rights and powers by or
through their respective Related Parties. The exculpatory provisions of this Article shall apply
to any such sub-agent and to the Related Parties of the Administrative Agent and any such
sub-agent, and shall apply to their respective activities in connection with the syndication of the
credit facilities provided for herein as well as activities as Administrative Agent.



     10.06 Resignation of Administrative Agent. The Administrative Agent may at any time
give notice of its resignation to the Lenders and the Borrower. Upon receipt of any such notice of
resignation, the Required Lenders shall have the right, in consultation with the Borrower, to
appoint a successor, which shall be a bank with an office in the United States, or an Affiliate of
any such bank with an office in the United States. If no such successor shall have been so
appointed by the Required Lenders and shall have accepted such appointment within 30 days after the
retiring Administrative Agent gives notice of its resignation, then the retiring Administrative
Agent may on behalf of the Lenders, appoint a successor Administrative Agent meeting the
qualifications set forth above; provided that if the Administrative Agent shall notify the
Borrower and the Lenders that no qualifying Person has accepted such appointment, then such
resignation shall nonetheless become effective in accordance with such notice and (a) the retiring
Administrative Agent shall be discharged from its duties and obligations hereunder and under the
other Loan Documents (except that in the case of any collateral security held by the Administrative
Agent on behalf of the Lenders under any of the Loan Documents, the retiring Administrative Agent
shall continue to hold such collateral security until such time as a successor Administrative Agent
is appointed) and (b) all payments, communications and



56









 




determinations provided to be made by, to or through the Administrative Agent shall instead be
made by or to each Lender directly, until such time as the Required Lenders appoint a successor
Administrative Agent as provided for above in this Section. Upon the acceptance of a successor’s
appointment as Administrative Agent hereunder, such successor shall succeed to and become vested
with all of the rights, powers, privileges and duties of the retiring (or retired) Administrative
Agent, and the retiring Administrative Agent shall be discharged from all of its duties and
obligations hereunder or under the other Loan Documents (if not already discharged therefrom as
provided above in this Section). The fees payable by the Borrower to a successor Administrative
Agent shall be the same as those payable to its predecessor unless otherwise agreed between the
Borrower and such successor. After the retiring Administrative Agent’s resignation hereunder and
under the other Loan Documents, the provisions of this Article and Section 11.04 shall
continue in effect for the benefit of such retiring Administrative Agent, its sub-agents and their
respective Related Parties in respect of any actions taken or omitted to be taken by any of them
while the retiring Administrative Agent was acting as Administrative Agent.




     10.07 Non-Reliance on Administrative Agent and Other Lenders. Each Lender
acknowledges that it has, independently and without reliance upon the Administrative Agent or any
other Lender or any of their Related Parties and based on such documents and information as it has
deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each
Lender also acknowledges that it will, independently and without reliance upon the Administrative
Agent or any other Lender or any of their Related Parties and based on such documents and
information as it shall from time to time deem appropriate, continue to make its own decisions in
taking or not taking action under or based upon this Agreement, any other Loan Document or any
related agreement or any document furnished hereunder or thereunder.



     10.08 Administrative Agent May File Proofs of Claim. In case of the pendency of any
proceeding under any Debtor Relief Law or any other judicial proceeding relative to the Borrower,
the Administrative Agent (irrespective of whether the principal of any Loan shall then be due and
payable as herein expressed or by declaration or otherwise and irrespective of whether the
Administrative Agent shall have made any demand on the Borrower) shall be entitled and empowered,
by intervention in such proceeding or otherwise



     (a) to file and prove a claim for the whole amount of the principal and interest owing and
unpaid in respect of the Loans and all other Obligations that are owing and unpaid and to file such
other documents as may be necessary or advisable in order to have the claims of the Lenders and the
Administrative Agent (including any claim for the reasonable compensation, expenses, disbursements
and advances of the Lenders and the Administrative Agent and their respective agents and counsel
and all other amounts due the Lenders and the Administrative Agent under Sections 2.03(i)
and (j), 2.07 and 11.04) allowed in such judicial proceeding; and



     (b) to collect and receive any monies or other property payable or deliverable on any such
claims and to distribute the same;


and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official
in any such judicial proceeding is hereby authorized by each Lender to make such payments to the
Administrative Agent and, if the Administrative Agent shall consent to the making of such




57









 







payments directly to the Lenders, to pay to the Administrative Agent any amount due for the
reasonable compensation, expenses, disbursements and advances of the Administrative Agent and its
agents and counsel, and any other amounts due the Administrative Agent under Sections 2.07
and 11.04.




     Nothing contained herein shall be deemed to authorize the Administrative Agent to authorize or
consent to or accept or adopt on behalf of any Lender any plan of reorganization, arrangement,
adjustment or composition affecting the Obligations or the rights of any Lender to authorize the
Administrative Agent to vote in respect of the claim of any Lender or in any such proceeding.



     10.09 Collateral Matters. Each of the Lenders irrevocably authorize the
Administrative Agent, at its option and in its discretion, to release any Lien on any property
granted to or held by the Administrative Agent under any Loan Document (i) upon termination of the
Aggregate Revolving Credit Commitments and payment in full of all Obligations (other than
contingent indemnification obligations), (ii) that is sold or to be sold as part of or in
connection with any sale permitted hereunder or under any other Loan Document, or (iii) if
approved, authorized or ratified in writing in accordance with Section 11.01.



     Upon request by the Administrative Agent at any time, the Required Lenders will confirm in
writing the Administrative Agent’s authority to release Collateral. In each case as specified in
this Section 10.09, the Administrative Agent will, at the Borrower’s expense, execute and
deliver to the Borrower such documents as the Borrower may reasonably request to evidence the
release of such item of Collateral from the assignment and security interest granted under the
Collateral Documents in accordance with the terms of the Loan Documents and this Section
10.09.



ARTICLE XI

MISCELLANEOUS




     11.01 Amendments, Etc. No amendment or waiver of any provision of this Agreement or
any other Loan Document, and no consent to any departure by the Borrower therefrom, shall be
effective unless in writing signed by the Required Lenders and the Borrower, as the case may be,
and acknowledged by the Administrative Agent, and each such waiver or consent shall be effective
only in the specific instance and for the specific purpose for which given; provided,
however, that no such amendment, waiver or consent shall:



     (a) waive any condition set forth in Section 4.01 (other than Section 4.01(b)(i)
or (c)), or, in the case of the initial Borrowing, Section 4.02, without the
written consent of each Lender;



     (b) without limiting the generality of clause (a) above, waive any condition set forth in
Section 4.02 as to any Borrowing under the Revolving Credit Facility without the written
consent of the Required Revolving Lenders;



     (c) extend or increase the Revolving Credit Commitment of any Lender (or reinstate any
Revolving Credit Commitment terminated pursuant to Section 9.02) without the written
consent of such Lender;



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     (d) postpone any date fixed by this Agreement or any other Loan Document for any payment of
principal, interest, fees or other amounts due to the Lenders (or any of them) hereunder or under
such other Loan Document without the written consent of each Lender entitled to such payment;



     (e) reduce the principal of, or the rate of interest specified herein on, any Loan or any fees
or other amounts payable hereunder or under any other Loan Document without the written consent of
each Lender entitled to such amount; provided, however, that only the consent of
the Required Lenders shall be necessary (i) to amend the definition of “Default Rate” or to waive
any obligation of the Borrower to pay interest at the Default Rate or (ii) to amend any financial
covenant hereunder (or any defined term used therein) even if the effect of such amendment would be
to reduce the rate of interest on any Loan or to reduce any fee payable hereunder;



     (f) change (i) Section 9.03 in a manner that would alter the pro rata sharing of
payments required thereby without the written consent of each Lender or (ii) the order of
application of any reduction in the Revolving Credit Commitments or any prepayment of Loans among
the Facilities from the application thereof set forth in the applicable provisions of Section
2.03(b) or 2.04(b), respectively, in any manner that materially and adversely affects
the Lenders under a Facility without the written consent of (i) if such Facility is the Term
Facility, the Required Term Lenders and (ii) if such Facility is the Revolving Credit Facility, the
Required Revolving Lenders;



     (g) change (i) any provision of this Section 11.01 or the definition of “Required
Lenders” or any other provision hereof specifying the number or percentage of Lenders required to
amend, waive or otherwise modify any rights hereunder or make any determination or grant any
consent hereunder (other than the definitions specified in clause (ii) of this Section
11.01(g)), without the written consent of each Lender or (ii) the definition of “Required
Revolving Lenders” or “Required Term Lenders” without the written consent of each Lender under the
applicable Facility;



     (h) release all or substantially all of the Collateral in any transaction or series of related
transactions, without the written consent of each Lender;



     (i) impose any greater restriction on the ability of any Lender under a Facility to assign any
of its rights or obligations hereunder without the written consent of (i) if such Facility is the
Term Facility, the Required Term Lenders and (ii) if such Facility is the Revolving Credit
Facility, the Required Revolving Lenders;


and provided, further, that (i) no amendment, waiver or consent shall, unless in
writing and signed by the Administrative Agent in addition to the Lenders required above, affect
the rights or duties of the Administrative Agent under this Agreement or any other Loan Document;
(ii) the Fee Letter may be amended, or rights or privileges thereunder waived, in a writing
executed only by the parties thereto. Notwithstanding anything to the contrary herein, no
Defaulting Lender shall have any right to approve or disapprove any amendment, waiver or consent
hereunder, except that the Revolving Credit Commitment of such Lender may not be increased or
extended without the consent of such Lender.




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     11.02 Notices; Effectiveness; Electronic Communications. (a) Notices
Generally. Except in the case of notices and other communications expressly permitted to be
given by telephone (and except as provided in subsection (b) below), all notices and other
communications provided for herein shall be in writing and shall be delivered by hand or overnight
courier service, mailed by certified or registered mail or sent by telecopier as follows, and all
notices and other communications expressly permitted hereunder to be given by telephone shall be
made to the applicable telephone number, as follows:




     (i) if to the Borrower or the Administrative Agent, to the address, telecopier number,
electronic mail address or telephone number specified for such Person on Schedule
11.02; and




     (ii) if to any other Lender, to the address, telecopier number, electronic mail address
or telephone number specified in its Administrative Questionnaire.


Notices and other communications sent by hand or overnight courier service, or mailed by certified
or registered mail, shall be deemed to have been given when received; notices and other
communications sent by telecopier shall be deemed to have been given when sent (except that, if not
given during normal business hours for the recipient, shall be deemed to have been given at the
opening of business on the next business day for the recipient). Notices and other communications
delivered through electronic communications to the extent provided in subsection (b) below shall be
effective as provided in such subsection (b).




     (b) Electronic Communications. Notices and other communications to the Lenders
hereunder may be delivered or furnished by electronic communication (including e-mail and Internet
or intranet websites) pursuant to procedures approved by the Administrative Agent, provided
that the foregoing shall not apply to notices to any Lender pursuant to Article II if such
Lender has notified the Administrative Agent that it is incapable of receiving notices under such
Article by electronic communication. The Administrative Agent or the Borrower may, in its
discretion, agree to accept notices and other communications to it hereunder by electronic
communications pursuant to procedures approved by it, provided that approval of such
procedures may be limited to particular notices or communications.



     Unless the Administrative Agent otherwise prescribes, (i) notices and other communications
sent to an e-mail address shall be deemed received upon the sender’s receipt of an acknowledgement
from the intended recipient (such as by the “return receipt requested” function, as available,
return e-mail or other written acknowledgement), provided that if such notice or other
communication is not sent during the normal business hours of the recipient, such notice or
communication shall be deemed to have been sent at the opening of business on the next business day
for the recipient, and (ii) notices or communications posted to an Internet or intranet website
shall be deemed received upon the deemed receipt by the intended recipient at its e-mail address as
described in the foregoing clause (i) of notification that such notice or communication is
available and identifying the website address therefor.



     (c) The Platform. THE PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE.” THE AGENT
PARTIES (AS DEFINED BELOW) DO NOT WARRANT THE ACCURACY OR COMPLETENESS OF THE BORROWER MATERIALS OR
THE



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ADEQUACY OF THE PLATFORM, AND EXPRESSLY DISCLAIM LIABILITY FOR ERRORS IN OR OMISSIONS FROM THE
BORROWER MATERIALS. NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY
OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR
FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS, IS MADE BY ANY AGENT PARTY IN CONNECTION WITH THE
BORROWER MATERIALS OR THE PLATFORM. In no event shall the Administrative Agent or any of its
Related Parties (collectively, the “Agent Parties”) have any liability to the Borrower, any
Lender or any other Person for losses, claims, damages, liabilities or expenses of any kind
(whether in tort, contract or otherwise) arising out of the Borrower’s or the Administrative
Agent’s transmission of Borrower Materials through the Internet, except to the extent that such
losses, claims, damages, liabilities or expenses are determined by a court of competent
jurisdiction by a final and nonappealable judgment to have resulted from the gross negligence or
willful misconduct of such Agent Party; provided, however, that in no event shall
any Agent Party have any liability to the Borrower, any Lender or any other Person for indirect,
special, incidental, consequential or punitive damages (as opposed to direct or actual damages).




     (d) Change of Address, Etc. Each of the Borrower and the Administrative Agent may
change its address, telecopier or telephone number for notices and other communications hereunder
by notice to the other parties hereto. Each other Lender may change its address, telecopier or
telephone number for notices and other communications hereunder by notice to the Borrower and the
Administrative Agent. In addition, each Lender agrees to notify the Administrative Agent from time
to time to ensure that the Administrative Agent has on record (i) an effective address, contact
name, telephone number, telecopier number and electronic mail address to which notices and other
communications may be sent and (ii) accurate wire instructions for such Lender. Furthermore, each
Public Lender agrees to cause at least one individual at or on behalf of such Public Lender to at
all times have selected the “Private Side Information” or similar designation on the content
declaration screen of the Platform in order to enable such Public Lender or its delegate, in
accordance with such Public Lender’s compliance procedures and applicable Law, including United
States Federal and state securities Laws, to make reference to Borrower Materials that are not made
available through the “Public Side Information” portion of the Platform and that may contain
material non-public information with respect to the Borrower or its securities for purposes of
United States Federal or state securities laws.



     (e) Reliance by Administrative Agent and Lenders. The Administrative Agent and the
Lenders shall be entitled to rely and act upon any notices (including telephonic Loan Notices)
purportedly given by or on behalf of the Borrower even if (i) such notices were not made in a
manner specified herein, were incomplete or were not preceded or followed by any other form of
notice specified herein, or (ii) the terms thereof, as understood by the recipient, varied from any
confirmation thereof. The Borrower shall indemnify the Administrative Agent, each Lender and the
Related Parties of each of them from all losses, costs, expenses and liabilities resulting from the
reliance by such Person on each notice purportedly given by or on behalf of the Borrower. All
telephonic notices to and other telephonic communications with the Administrative Agent may be
recorded by the Administrative Agent, and each of the parties hereto hereby consents to such
recording.




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     11.03 No Waiver; Cumulative Remedies; Enforcement. No failure by any Lender or the
Administrative Agent to exercise, and no delay by any such Person in exercising, any right, remedy,
power or privilege hereunder or under any other Loan Document shall operate as a waiver thereof;
nor shall any single or partial exercise of any right, remedy, power or privilege hereunder
preclude any other or further exercise thereof or the exercise of any other right, remedy, power or
privilege. The rights, remedies, powers and privileges herein provided, and provided under each
other Loan Document, are cumulative and not exclusive of any rights, remedies, powers and
privileges provided by law.



     Notwithstanding anything to the contrary contained herein or in any other Loan Document, the
authority to enforce rights and remedies hereunder and under the other Loan Documents against the
Borrower or any of them shall be vested exclusively in, and all actions and proceedings at law in
connection with such enforcement shall be instituted and maintained exclusively by, the
Administrative Agent in accordance with Section 9.02 for the benefit of all the Lenders;
provided, however, that the foregoing shall not prohibit (a) the Administrative
Agent from exercising on its own behalf the rights and remedies that inure to its benefit (solely
in its capacity as Administrative Agent) hereunder and under the other Loan Documents, (b) any
Lender from exercising setoff rights in accordance with Section 11.08 (subject to the terms
of Section 2.11) or (c) any Lender from filing proofs of claim or appearing and filing
pleadings on its own behalf during the pendency of a proceeding relative to the Borrower under any
Debtor Relief Law; and provided, further, that if at any time there is no Person
acting as Administrative Agent hereunder and under the other Loan Documents, then (i) the Required
Lenders shall have the rights otherwise ascribed to the Administrative Agent pursuant to
Section 9.02 and (ii) in addition to the matters set forth in clauses (b) and (c) of the
preceding proviso and subject to Section 2.11, any Lender may, with the consent of the
Required Lenders, enforce any rights and remedies available to it and as authorized by the Required
Lenders.



     11.04 Expenses; Indemnity; Damage Waiver. (a) Costs and Expenses. The
Borrower shall pay (i) all reasonable out-of-pocket expenses incurred by the Administrative Agent
and its Affiliates (including the reasonable fees, charges and disbursements of outside counsel for
the Administrative Agent), in connection with the syndication of the credit facilities provided for
herein, the preparation, negotiation, execution, delivery and administration of this Agreement and
the other Loan Documents or any amendments, modifications or waivers of the provisions hereof or
thereof (whether or not the transactions contemplated hereby or thereby shall be consummated) and
(ii) all reasonable out-of-pocket expenses incurred by the Administrative Agent or any Lender
(including the reasonable fees, charges and disbursements of any outside counsel for the
Administrative Agent or any Lender), in connection with the enforcement or protection of its rights
(A) in connection with this Agreement and the other Loan Documents, including its rights under this
Section or (B) in connection with Loans made, including all such out-of-pocket expenses incurred
during any workout, restructuring or negotiations in respect of such Loans.



     (b) Indemnification by the Borrower. The Borrower shall indemnify the Administrative
Agent (and any sub-agent thereof), each Lender, and each Related Party of any of the foregoing
Persons (each such Person being called an “Indemnitee”) against, and hold each Indemnitee
harmless from, any and all losses, claims, damages, liabilities and related expenses (including the
reasonable fees, charges and disbursements of any counsel for any Indemnitee),



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incurred by any Indemnitee or asserted against any Indemnitee by any third party or by the
Borrower arising out of, in connection with, or as a result of (i) the execution or delivery of
this Agreement, any other Loan Document or any agreement or instrument contemplated hereby or
thereby, the performance by the parties hereto of their respective obligations hereunder or
thereunder or the consummation of the transactions contemplated hereby or thereby, or, in the case
of the Administrative Agent (and any sub-agent thereof) and its Related Parties only, the
administration of this Agreement and the other Loan Documents, (ii) any Loan or the use or proposed
use of the proceeds therefrom, (iii) any actual or alleged presence or release of Hazardous
Materials on or from any property owned or operated by the Borrower or any of its Subsidiaries, or
any Environmental Liability related in any way to the Borrower or any of its Subsidiaries, or (iv)
any actual or prospective claim, litigation, investigation or proceeding relating to any of the
foregoing, whether based on contract, tort or any other theory, whether brought by a third party or
by the Borrower or any of the Borrower’s directors, shareholders or creditors], and regardless of
whether any Indemnitee is a party thereto, IN ALL CASES, WHETHER OR NOT CAUSED BY OR ARISING, IN
WHOLE OR IN PART, OUT OF THE COMPARATIVE, CONTRIBUTORY OR SOLE NEGLIGENCE OF THE INDEMNITEE;
provided that such indemnity shall not, as to any Indemnitee, be available to the extent
that such losses, claims, damages, liabilities or related expenses (x) are determined by a court of
competent jurisdiction by final and nonappealable judgment to have resulted from the gross
negligence or willful misconduct of such Indemnitee or (y) result from a claim brought by the
Borrower against an Indemnitee for breach in bad faith of such Indemnitee’s obligations hereunder
or under any other Loan Document, if the Borrower has obtained a final and nonappealable judgment
in its favor on such claim as determined by a court of competent jurisdiction.




     (c) Reimbursement by Lenders. To the extent that the Borrower for any reason fails to
indefeasibly pay any amount required under subsection (a) or (b) of this Section to be paid by it
to the Administrative Agent (or any sub-agent thereof) or any Related Party of any of the
foregoing, each Lender severally agrees to pay to the Administrative Agent (or any such sub-agent)
or such Related Party, as the case may be, such Lender’s Applicable Percentage (determined as of
the time that the applicable unreimbursed expense or indemnity payment is sought) of such unpaid
amount, provided that the unreimbursed expense or indemnified loss, claim, damage,
liability or related expense, as the case may be, was incurred by or asserted against the
Administrative Agent (or any such sub-agent), or against any Related Party of any of the foregoing
acting for the Administrative Agent (or any such sub-agent) in connection with such capacity. The
obligations of the Lenders under this subsection (c) are subject to the provisions of Section
2.10(d).



     (d) Waiver of Consequential Damages, Etc. To the fullest extent permitted by
applicable law, the Borrower shall not assert, and hereby waives, any claim against any Indemnitee,
on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to
direct or actual damages) arising out of, in connection with, or as a result of, this Agreement,
any other Loan Document or any agreement or instrument contemplated hereby, the transactions
contemplated hereby or thereby, any Loan or the use of the proceeds thereof. No Indemnitee
referred to in subsection (b) above shall be liable for any damages arising from the use by
unintended recipients of any information or other materials distributed to such unintended
recipients by such Indemnitee through telecommunications, electronic or other information



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transmission systems in connection with this Agreement or the other Loan Documents or the
transactions contemplated hereby or thereby other than for direct or actual damages resulting from
the gross negligence or willful misconduct of such Indemnitee as determined by a final and
nonappealable judgment of a court of competent jurisdiction.




     (e) Payments. All amounts due under this Section shall be payable not later than ten
Business Days after demand therefor.



     (f) Survival. The agreements in this Section shall survive the resignation of the
Administrative Agent, the replacement of any Lender, the termination of the Aggregate Revolving
Credit Commitments and the repayment, satisfaction or discharge of all the other Obligations.



     11.05 Payments Set Aside. To the extent that any payment by or on behalf of the
Borrower is made to the Administrative Agent or any Lender, or the Administrative Agent or any
Lender exercises its right of setoff, and such payment or the proceeds of such setoff or any part
thereof is subsequently invalidated, declared to be fraudulent or preferential, set aside or
required (including pursuant to any settlement entered into by the Administrative Agent or such
Lender in its discretion) to be repaid to a trustee, receiver or any other party, in connection
with any proceeding under any Debtor Relief Law or otherwise, then (a) to the extent of such
recovery, the obligation or part thereof originally intended to be satisfied shall be revived and
continued in full force and effect as if such payment had not been made or such setoff had not
occurred and (b) each Lender severally agrees to pay to the Administrative Agent upon demand its
applicable share (without duplication) of any amount so recovered from or repaid by the
Administrative Agent, plus interest thereon from the date of such demand to the date such
payment is made at a rate per annum equal to the Federal Funds Rate from time to time in effect.
The obligations of the Lenders under clause (b) of the preceding sentence shall survive the payment
in full of the Obligations and the termination of this Agreement.



     11.06 Successors and Assigns. (a) Successors and Assigns Generally. The
provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns permitted hereby, except that the Borrower may not
assign or otherwise transfer any of its rights or obligations hereunder without the prior written
consent of the Administrative Agent and each Lender and no Lender may assign or otherwise transfer
any of its rights or obligations hereunder except (i) to an assignee in accordance with the
provisions of Section 11.06(b), (ii) by way of participation in accordance with the
provisions of Section 11.06(d) or (iii) by way of pledge or assignment of a security
interest subject to the restrictions of Section 11.06(f) (and any other attempted
assignment or transfer by any party hereto shall be null and void). Nothing in this Agreement,
expressed or implied, shall be construed to confer upon any Person (other than the parties hereto,
their respective successors and assigns permitted hereby, Participants to the extent provided in
subsection (d) of this Section and, to the extent expressly contemplated hereby, the Related
Parties of each of the Administrative Agent and the Lenders) any legal or equitable right, remedy
or claim under or by reason of this Agreement.



     (b) Assignments by Lenders. Any Lender may at any time assign to one or more
assignees all or a portion of its rights and obligations under this Agreement (including all or a



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portion of its Revolving Credit Commitment(s) and the Loans at the time owing to it);
provided that any such assignment shall be subject to the following conditions:





     (i) Minimum Amounts.




     (A) in the case of an assignment of the entire remaining amount of the assigning
Lender’s Revolving Credit Commitment and the Loans at the time owing to it under the
applicable Facility or in the case of an assignment to a Lender, an Affiliate of a Lender or
an Approved Fund, no minimum amount need be assigned; and




     (B) in any case not described in subsection (b)(i)(A) of this Section, the aggregate
amount of the Revolving Credit Commitment (which for this purpose includes Loans outstanding
thereunder) or, if the Revolving Credit Commitment is not then in effect, the principal
outstanding balance of the Loans of the assigning Lender subject to each such assignment,
determined as of the date the Assignment and Assumption with respect to such assignment is
delivered to the Administrative Agent or, if “Trade Date” is specified in the Assignment and
Assumption, as of the Trade Date, shall not be less than $5,000,000, in the case of any
assignment in respect of the Revolving Credit Facility, or $1,000,000, in the case of any
assignment in respect of the Term Facility, unless each of the Administrative Agent and, so
long as no Event of Default has occurred and is continuing, the Borrower otherwise consents
(each such consent not to be unreasonably withheld or delayed); provided,
however, that concurrent assignments to members of an Assignee Group and concurrent
assignments from members of an Assignee Group to a single Eligible Assignee (or to an
Eligible Assignee and members of its Assignee Group) will be treated as a single assignment
for purposes of determining whether such minimum amount has been met;




     (ii) Proportionate Amounts. Each partial assignment shall be made as an
assignment of a proportionate part of all the assigning Lender’s rights and obligations
under this Agreement with respect to the Loans or the Revolving Credit Commitment assigned,
except that this clause (ii) shall not prohibit any Lender from assigning all or a portion
of its rights and obligations among separate Facilities on a non-pro rata basis;




     (iii) Required Consents. No consent shall be required for any assignment
except to the extent required by subsection (b)(i)(B) of this Section and, in addition:




     (A) the consent of the Borrower (such consent not to be unreasonably withheld or
delayed) shall be required unless (1) an Event of Default has occurred and is continuing at
the time of such assignment or (2) such assignment is to a Lender, an Affiliate of a Lender
or an Approved Fund; and




     (B) the consent of the Administrative Agent (such consent not to be unreasonably
withheld or delayed) shall be required for assignments in respect of (1) any Revolving
Credit Commitment if such assignment is to a Person that is not a Lender with a Revolving
Credit Commitment, an Affiliate of such Lender or an Approved Fund with respect to such
Lender or (2) any Term Loan to a Person that is not a Lender, an Affiliate of a Lender or an
Approved Fund.



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     (iv) Assignment and Assumption. The parties to each assignment shall execute
and deliver to the Administrative Agent an Assignment and Assumption, together with a
processing and recordation fee in the amount of $3,500; provided, however,
that the Administrative Agent may, in its sole discretion, elect to waive such processing
and recordation fee in the case of any assignment. The assignee, if it is not a Lender,
shall deliver to the Administrative Agent an Administrative Questionnaire.




     (v) No Assignment to Borrower. No such assignment shall be made to the
Borrower or any of the Borrower’s Affiliates or Subsidiaries.




     (vi) No Assignment to Natural Persons. No such assignment shall be made to a
natural person.



Subject to acceptance and recording thereof by the Administrative Agent pursuant to subsection (c)
of this Section, from and after the effective date specified in each Assignment and Assumption, the
assignee thereunder shall be a party to this Agreement and, to the extent of the interest assigned
by such Assignment and Assumption, have the rights and obligations of a Lender under this
Agreement, and the assigning Lender thereunder shall, to the extent of the interest assigned by
such Assignment and Assumption, be released from its obligations under this Agreement (and, in the
case of an Assignment and Assumption covering all of the assigning Lender’s rights and obligations
under this Agreement, such Lender shall cease to be a party hereto) but shall continue to be
entitled to the benefits of Sections 3.01, 3.04, 3.05 and 11.04
with respect to facts and circumstances occurring prior to the effective date of such assignment.
Upon request, the Borrower (at its expense) shall execute and deliver a Note to the assignee
Lender. Any assignment or transfer by a Lender of rights or obligations under this Agreement that
does not comply with this subsection shall be treated for purposes of this Agreement as a sale by
such Lender of a participation in such rights and obligations in accordance with Section
11.06(d).




     (c) Register. The Administrative Agent, acting solely for this purpose as an agent of
the Borrower, shall maintain at the Administrative Agent’s Office a copy of each Assignment and
Assumption delivered to it and a register for the recordation of the names and addresses of the
Lenders, and the Revolving Credit Commitments of, and principal amounts of the Loans owing to, each
Lender pursuant to the terms hereof from time to time (the “Register”). The entries in the
Register shall be conclusive, and the Borrower, the Administrative Agent and the Lenders may treat
each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender
hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. The Register
shall be available for inspection by the Borrower and any Lender, at any reasonable time and from
time to time upon reasonable prior notice.



     (d) Participations. Any Lender may at any time, without the consent of, or notice to,
the Borrower or the Administrative Agent, sell participations to any Person (other than a natural
person or the Borrower or any of the Borrower’s Affiliates or Subsidiaries) (each, a
“Participant”) in all or a portion of such Lender’s rights and/or obligations under this
Agreement (including all or a portion of its Revolving Credit Commitment and/or the Loans owing to
it); provided that (i) such Lender’s obligations under this Agreement shall remain
unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the
performance of



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such obligations and (iii) the Borrower, the Administrative Agent and the Lenders shall
continue to deal solely and directly with such Lender in connection with such Lender’s rights and
obligations under this Agreement. Any agreement or instrument pursuant to which a Lender sells
such a participation shall provide that such Lender shall retain the sole right to enforce this
Agreement and to approve any amendment, modification or waiver of any provision of this Agreement;
provided that such agreement or instrument may provide that such Lender will not, without
the consent of the Participant, agree to any amendment, waiver or other modification described in
the first proviso to Section 11.01 that affects such Participant. Subject to
subsection (e) of this Section, the Borrower agrees that each Participant shall be entitled
to the benefits of Sections 3.01, 3.04 and 3.05 to the same extent as if it
were a Lender and had acquired its interest by assignment pursuant to Section 11.06(b). To
the extent permitted by law, each Participant also shall be entitled to the benefits of Section
11.08 as though it were a Lender, provided such Participant agrees to be subject to
Sections 2.11 and 11.07 as though it were a Lender.




     (e) Limitations upon Participant Rights. A Participant shall not be entitled to
receive any greater payment under Section 3.01 or 3.04 than the applicable Lender
would have been entitled to receive with respect to the participation sold to such Participant,
unless the sale of the participation to such Participant is made with the Borrower’s prior written
consent. A Participant that would be a Foreign Lender if it were a Lender shall not be entitled to
the benefits of Section 3.01 unless the Borrower is notified of the participation sold to
such Participant and such Participant agrees, for the benefit of the Borrower, to comply with
Section 3.01(e) as though it were a Lender.



     (f) Certain Pledges. Any Lender may at any time pledge or assign a security interest
in all or any portion of its rights under this Agreement (including under its Note, if any) to
secure obligations of such Lender, including any pledge or assignment to secure obligations to a
Federal Reserve Bank; provided that no such pledge or assignment shall release such Lender
from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as
a party hereto.



     11.07 Treatment of Certain Information; Confidentiality. Each of the Administrative
Agent and the Lenders agrees to maintain the confidentiality of the Information (as defined below),
except that Information may be disclosed (a) to its Affiliates and to its and its Affiliates’
respective partners, directors, officers, employees, agents, trustees, advisors and representatives
(it being understood that the Persons to whom such disclosure is made will be informed of the
confidential nature of such Information and instructed to keep such Information confidential), (b)
to the extent requested by any regulatory authority purporting to have jurisdiction over it
(including any self-regulatory authority, such as the National Association of Insurance
Commissioners), (c) to the extent required by applicable laws or regulations or by any subpoena or
similar legal process, (d) to any other party hereto, (e) in connection with the exercise of any
remedies hereunder or under any other Loan Document or any action or proceeding relating to this
Agreement or any other Loan Document or the enforcement of rights hereunder or thereunder, (f)
subject to an agreement containing provisions substantially the same as those of this Section, to
(i) any assignee of or Participant in, or any prospective assignee of or Participant in, any of its
rights or obligations under this Agreement or any Eligible Assignee invited to be a Lender pursuant
to Section 2.13 or (ii) any actual or prospective counterparty (or its advisors) to



67









 





any swap or derivative transaction relating to the Borrower and its obligations, (g) with the
consent of the Borrower or (h) to the extent such Information (i) becomes publicly available other
than as a result of a breach of this Section or (ii) becomes available to the Administrative Agent,
any Lender or any of their respective Affiliates on a nonconfidential basis from a source other
than the Borrower.




     For purposes of this Section, “Information” means all information received from the
Borrower or any Subsidiary thereof relating to the Borrower or any Subsidiary thereof or their
respective businesses, other than any such information that is available to the Administrative
Agent or any Lender on a nonconfidential basis prior to disclosure by the Borrower or any
Subsidiary thereof. Any Person required to maintain the confidentiality of Information as provided
in this Section shall be considered to have complied with its obligation to do so if such Person
has exercised the same degree of care to maintain the confidentiality of such Information as such
Person would accord to its own confidential information.



     Each of the Administrative Agent and the Lenders acknowledges that (a) the Information may
include material non-public information concerning the Borrower or a Subsidiary, as the case may
be, (b) it has developed compliance procedures regarding the use of material non-public information
and (c) it will handle such material non-public information in accordance with applicable Law,
including United States Federal and state securities Laws.



     11.08 Right of Setoff. If an Event of Default shall have occurred and be continuing,
each Lender and each of their respective Affiliates is hereby authorized at any time and from time
to time, to the fullest extent permitted by applicable law, to set off and apply any and all
deposits (general or special, time or demand, provisional or final, in whatever currency) at any
time held and other obligations (in whatever currency) at any time owing by such Lender or any such
Affiliate to or for the credit or the account of the Borrower against any and all of the
obligations of the Borrower now or hereafter existing under this Agreement or any other Loan
Document to such Lender, irrespective of whether or not such Lender shall have made any demand
under this Agreement or any other Loan Document and although such obligations of the Borrower may
be contingent or unmatured or are owed to a branch or office of such Lender different from the
branch or office holding such deposit or obligated on such indebtedness. The rights of each Lender
and their respective Affiliates under this Section are in addition to other rights and remedies
(including other rights of setoff) that such Lender or their respective Affiliates may have. Each
Lender agrees to notify the Borrower and the Administrative Agent promptly after any such setoff
and application, provided that the failure to give such notice shall not affect the
validity of such setoff and application.



     11.09 Interest Rate Limitation. Notwithstanding anything to the contrary contained in
any Loan Document, the interest paid or agreed to be paid under the Loan Documents shall not exceed
the maximum rate of non-usurious interest permitted by applicable Law (the “Maximum Rate”).
If the Administrative Agent or any Lender shall receive interest in an amount that exceeds the
Maximum Rate, the excess interest shall be applied to the principal of the Loans or, if it exceeds
such unpaid principal, refunded to the Borrower. In determining whether the interest contracted
for, charged, or received by the Administrative Agent or a Lender exceeds the Maximum Rate, such
Person may, to the extent permitted by applicable Law, (a) characterize any payment that is not
principal as an expense, fee, or premium rather than interest, (b) exclude



68









 





voluntary prepayments and the effects thereof and (c) amortize, prorate, allocate, and spread
in equal or unequal parts the total amount of interest throughout the contemplated term of the
Obligations hereunder.




     11.10 Counterparts; Integration; Effectiveness. This Agreement may be executed in
counterparts (and by different parties hereto in different counterparts), each of which shall
constitute an original, but all of which when taken together shall constitute a single contract.
This Agreement and the other Loan Documents constitute the entire contract among the parties
relating to the subject matter hereof and supersede any and all previous agreements and
understandings, oral or written, relating to the subject matter hereof (including the Existing
Credit Agreement). Except as provided in Section 4.01, this Agreement shall become
effective when it shall have been executed by the Administrative Agent and when the Administrative
Agent shall have received counterparts hereof that, when taken together, bear the signatures of
each of the other parties hereto. Delivery of an executed counterpart of a signature page of this
Agreement by telecopy or other electronic imaging means shall be effective as delivery of a
manually executed counterpart of this Agreement.



     11.11 Survival of Representations and Warranties. All representations and warranties
made hereunder and in any other Loan Document or other document delivered pursuant hereto or
thereto or in connection herewith or therewith shall survive the execution and delivery hereof and
thereof. Such representations and warranties have been or will be relied upon by the
Administrative Agent and each Lender, regardless of any investigation made by the Administrative
Agent or any Lender or on their behalf and notwithstanding that the Administrative Agent or any
Lender may have had notice or knowledge of any Default at the time of any Borrowing, and shall
continue in full force and effect as long as any Loan or any other Obligation hereunder shall
remain unpaid or unsatisfied.



     11.12 Severability. If any provision of this Agreement or the other Loan Documents is
held to be illegal, invalid or unenforceable, (a) the legality, validity and enforceability of the
remaining provisions of this Agreement and the other Loan Documents shall not be affected or
impaired thereby and (b) the parties shall endeavor in good faith negotiations to replace the
illegal, invalid or unenforceable provisions with valid provisions the economic effect of which
comes as close as possible to that of the illegal, invalid or unenforceable provisions. The
invalidity of a provision in a particular jurisdiction shall not invalidate or render unenforceable
such provision in any other jurisdiction.



     11.13 Replacement of Lenders. If any Lender requests compensation under Section
3.04, or if the Borrower is required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to Section 3.01, or if any
Lender is a Defaulting Lender or if any other circumstance exists hereunder that gives the Borrower
the right to replace a Lender as a party hereto, then the Borrower may, at its sole expense and
effort, upon notice to such Lender and the Administrative Agent, require such Lender to assign and
delegate, without recourse (in accordance with and subject to the restrictions contained in, and
consents required by, Section 11.06), all of its interests, rights and obligations under
this Agreement and the related Loan Documents to an assignee that shall assume such obligations
(which assignee may be another Lender, if a Lender accepts such assignment), provided that:



69









 





     (a) the Borrower shall have paid to the Administrative Agent the assignment fee specified in
Section 11.06(b);



     (b) such Lender shall have received payment of an amount equal to the outstanding principal of
its Loans, accrued interest thereon, accrued fees and all other amounts payable to it hereunder and
under the other Loan Documents (including any amounts under Section 3.05) from the assignee
(to the extent of such outstanding principal and accrued interest and fees) or the Borrower (in the
case of all other amounts);



     (c) in the case of any such assignment resulting from a claim for compensation under
Section 3.04 or payments required to be made pursuant to Section 3.01, such
assignment will result in a reduction in such compensation or payments thereafter; and



     (d) such assignment does not conflict with applicable Laws.



     A Lender shall not be required to make any such assignment or delegation if, prior thereto, as
a result of a waiver by such Lender or otherwise, the circumstances entitling the Borrower to
require such assignment and delegation cease to apply.



     11.14 Governing Law; Jurisdiction; Etc. (a) GOVERNING LAW. THIS AGREEMENT
SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF ILLINOIS.



     (b) SUBMISSION TO JURISDICTION. THE BORROWER IRREVOCABLY AND UNCONDITIONALLY SUBMITS,
FOR ITSELF AND ITS PROPERTY, TO THE NONEXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF
ILLINOIS AND OF THE UNITED STATES DISTRICT COURT OF THE NORTHERN DISTRICT OF ILLINOIS, AND ANY
APPELLATE COURT FROM ANY THEREOF, IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS
AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR FOR RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT, AND EACH
OF THE PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH
ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH ILLINOIS STATE COURT OR, TO THE FULLEST
EXTENT PERMITTED BY APPLICABLE LAW, IN SUCH FEDERAL COURT. EACH OF THE PARTIES HERETO AGREES THAT
A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER
JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW. NOTHING IN THIS
AGREEMENT OR IN ANY OTHER LOAN DOCUMENT SHALL AFFECT ANY RIGHT THAT THE ADMINISTRATIVE AGENT OR ANY
LENDER MAY OTHERWISE HAVE TO BRING ANY ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY
OTHER LOAN DOCUMENT AGAINST THE BORROWER OR ITS PROPERTIES IN THE COURTS OF ANY JURISDICTION.



     (c) WAIVER OF VENUE. THE BORROWER IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO



70









 





THE LAYING OF VENUE OF ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT
OR ANY OTHER LOAN DOCUMENT IN ANY COURT REFERRED TO IN PARAGRAPH (B) OF THIS SECTION. EACH OF THE
PARTIES HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE
DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION OR PROCEEDING IN ANY SUCH COURT.




     (d) SERVICE OF PROCESS. EACH PARTY HERETO IRREVOCABLY CONSENTS TO SERVICE OF PROCESS
IN THE MANNER PROVIDED FOR NOTICES IN SECTION 11.02. NOTHING IN THIS AGREEMENT WILL AFFECT
THE RIGHT OF ANY PARTY HERETO TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY APPLICABLE LAW.



     11.15 Waiver of Jury Trial. EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL
PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN
DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY
OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY
OTHER PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON WOULD NOT, IN THE
EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE
OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS
BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.



     11.16 No Advisory or Fiduciary Responsibility. In connection with all aspects of each
transaction contemplated hereby (including in connection with any amendment, waiver or other
modification hereof or of any other Loan Document), the Borrower acknowledges and agrees that: (i)
(A) the arranging and other services regarding this Agreement provided by the Administrative Agent
are arm’s-length commercial transactions between the Borrower and its Affiliates, on the one hand,
and the Administrative Agent on the other hand, (B) the Borrower has consulted its own legal,
accounting, regulatory and tax advisors to the extent it has deemed appropriate and (C) the
Borrower is capable of evaluating, and understands and accepts, the terms, risks and conditions of
the transactions contemplated hereby and by the other Loan Documents; (ii) (A) the Administrative
Agent is and has been acting solely as a principal and, except as expressly agreed in writing by
the relevant parties, has not been, is not, and will not be acting as an advisor, agent or
fiduciary for the Borrower or any of its Affiliates, or any other Person and (B) the Administrative
Agent does not have any obligation to the Borrower or any of its Affiliates with respect to the
transactions contemplated hereby except those obligations expressly set forth herein and in the
other Loan Documents; and (iii) the Administrative Agent and its Affiliates may be engaged in a
broad range of transactions that involve interests that differ from those of the Borrower and its
Affiliates, and the Administrative Agent does not have any obligation to disclose any of such
interests to the Borrower or its Affiliates. To the fullest extent permitted by law, the Borrower
hereby waives and releases any claims that it may have



71









 





against the Administrative Agent with respect to any breach or alleged breach of agency or
fiduciary duty in connection with any aspect of any transaction contemplated hereby.




     11.17 Electronic Execution of Assignments and Certain Other Documents. The words
“execution,” “signed,” “signature,” and words of like import in any Assignment and Assumption or in
any amendment or other modification hereof (including waivers and consents) shall be deemed to
include electronic signatures or the keeping of records in electronic form, each of which shall be
of the same legal effect, validity or enforceability as a manually executed signature or the use of
a paper-based recordkeeping system, as the case may be, to the extent and as provided for in any
applicable law, including the Federal Electronic Signatures in Global and National Commerce Act,
the New York State Electronic Signatures and Records Act, or any other similar state laws based on
the Uniform Electronic Transactions Act.



     11.18 USA PATRIOT Act. Each Lender that is subject to the Act (as hereinafter
defined) and the Administrative Agent (for itself and not on behalf of any Lender) hereby notifies
the Borrower that pursuant to the requirements of the USA PATRIOT Act (Title III of Pub. L. 107-56
(signed into law October 26, 2001)) (the “Act”), it is required to obtain, verify and
record information that identifies the Borrower, which information includes the name and address of
the Borrower and other information that will allow such Lender or the Administrative Agent, as
applicable, to identify the Borrower in accordance with the Act. The Borrower shall, promptly
following a request by the Administrative Agent or any Lender, provide all documentation and other
information that the Administrative Agent or such Lender requests in order to comply with its
ongoing obligations under applicable “know your customer” an anti-money laundering rules and
regulations, including the Act.



     11.19 Time of the Essence. Time is of the essence of the Loan Documents.



     11.20 ENTIRE AGREEMENT. THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS REPRESENT THE
FINAL AGREEMENT AMONG THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL
AGREEMENTS AMONG THE PARTIES.



72









 





     IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of
the date first above written.



	 	 	 	 	 
	 	WINTRUST FINANCIAL CORPORATION

 	 
	 	By:  	/s/ David A. Dykstra
 	 
	 	 	Name:  	David A. Dykstra 	 
	 	 	Title:  	Senior Executive Vice President 	 



 









 






	 	 	 	 	 



	 	 	 	 	 
	 	BANK OF AMERICA, N.A., as

Lender

 	 
	 	By:  	/s/ Mary Pat Riggins
 	 
	 	 	Name:  	Mary Pat Riggins 	 
	 	 	Title:  	Senior Vice President 	 



 









 






	 	 	 	 	 



	 	 	 	 	 
	 	BANK OF AMERICA, N.A., as

Administrative Agent

 	 
	 	By:  	/s/ Mary Pat Riggins
 	 
	 	 	Name:  	Mary Pat Riggins 	 
	 	 	Title:  	Senior Vice President 	 
	 




 











 





EXHIBIT A




FORM OF LOAN NOTICE




Date: ___________, _____




To: Bank of America, N.A., as Administrative Agent




Ladies and Gentlemen:




     Reference is made to that certain Amended and Restated Credit Agreement, dated as of October
30, 2009 (as amended, restated, extended, supplemented or otherwise modified in writing from time
to time, the “Agreement;” the terms defined therein being used herein as therein defined),
among Wintrust Financial Corporation, an Illinois corporation, the Lenders from time to time party
thereto, and Bank of America, N.A., as Administrative Agent.



     The undersigned hereby requests (select one):



     o A Borrowing of Revolving Credit Loans o A conversion or continuation of Loans




	1.	 	On ___ (a Business Day).
	 
	2.	 	In the amount of $          .
	 
	3.	 	Comprised of          .

[Type of Loan requested]
	 
	4.	 	For Eurodollar Rate Loans: with an Interest Period of           months.




The Borrowing, if any, requested herein complies with the provisos to the first sentence of
Section 2.01(b) of the Agreement.




	 	 	 	 	 
	 	 	WINTRUST FINANCIAL CORPORATION
	 
	 	 	 	 
	 

	 	By: 	 	 
	 

	 	 	 	 
	 

	 	 	Name:  	 
	 

	 	 	 	 
	 

	 	 	Title:	 
	 

	 	 	 	 





 









 





EXHIBIT B-1




FORM OF REVOLVING CREDIT NOTE




October 30, 2009




     FOR VALUE RECEIVED, the undersigned (the “Borrower”) hereby promises to pay to
_________ or registered assigns (the “Lender”), in accordance with the
provisions of the Agreement (as hereinafter defined), the principal amount of each Revolving Credit
Loan from time to time made by the Lender to the Borrower under that certain Amended and Restated
Credit Agreement, dated as of October 30, 2009 (as amended, restated, extended, supplemented or
otherwise modified in writing from time to time, the “Agreement;” the terms defined therein
being used herein as therein defined), among the Borrower, the Lenders from time to time party
thereto, and Bank of America, N.A., as Administrative Agent.



     The Borrower promises to pay interest on the unpaid principal amount of each Revolving Credit
Loan from the date of such Revolving Credit Loan until such principal amount is paid in full, at
such interest rates and at such times as provided in the Agreement. All payments of principal and
interest shall be made to the Administrative Agent for the account of the Lender in Dollars in
immediately available funds at the Administrative Agent’s Office. If any amount is not paid in
full when due hereunder, such unpaid amount shall bear interest, to be paid upon demand, from the
due date thereof until the date of actual payment (and before as well as after judgment) computed
at the per annum rate set forth in the Agreement.



     This Revolving Credit Note is one of the Notes referred to in the Agreement, is entitled to
the benefits thereof and may be prepaid in whole or in part subject to the terms and conditions
provided therein. Upon the occurrence and continuation of one or more of the Events of Default
specified in the Agreement, all amounts then remaining unpaid on this Revolving Credit Note shall
become, or may be declared to be, as applicable, immediately due and payable all as provided in the
Agreement. Revolving Credit Loans made by the Lender shall be evidenced by one or more loan
accounts or records maintained by the Lender in the ordinary course of business. The Lender may
also attach schedules to this Revolving Credit Note and endorse thereon the date, amount and
maturity of its Revolving Credit Loans and payments with respect thereto.



     The Borrower, for itself, its successors and assigns, hereby waives diligence, presentment,
protest and demand and notice of protest, demand, dishonor and non-payment of this Revolving Credit
Note.



 









 





     THIS REVOLVING CREDIT NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF
THE STATE OF ILLINOIS.



	 	 	 	 	 
	 

	 	WINTRUST FINANCIAL CORPORATION

	 
	 	 	 	 
	 

	 	By: 	 	 
	 

	 	 	 	 
	 

	 	 	Name: 	 
	 

	 	 	 	 
	 

	 	 	Title:	 	 
	 

	 	 	 	 





 









 






Revolving Credit Loans and Payments made with respect thereto




	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	Amount of Principal	 	Outstanding	 	 
	 	 	 	 	 	 	End of Interest	 	or Interest Paid	 	Principal Balance	 	 
	Date	 	Type of Loan Made	 	Amount of Loan Made	 	Period	 	This Date	 	This Date	 	Notation Made By
	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 






 












 





EXHIBIT B-2




FORM OF TERM NOTE




October 30, 2009




     FOR VALUE RECEIVED, the undersigned (the “Borrower”) hereby promises to pay to
                                         or registered assigns (the “Lender”), in accordance with the
provisions of the Agreement (as hereinafter defined), the principal amount of the Term Loan made by
the Lender to the Borrower under that certain Amended and Restated Credit Agreement, dated as of
October 30, 2009 (as amended, restated, extended, supplemented or otherwise modified in writing
from time to time, the “Agreement;” the terms defined therein being used herein as therein
defined), among the Borrower, the Lenders from time to time party thereto, and Bank of America,
N.A., as Administrative Agent.



     The Borrower promises to pay interest on the unpaid principal amount of the Term Loan from the
date of such Term Loan until such principal amount is paid in full, at such interest rates and at
such times as provided in the Agreement. All payments of principal and interest shall be made to
the Administrative Agent for the account of the Lender in Dollars in immediately available funds at
the Administrative Agent’s Office. If any amount is not paid in full when due hereunder, such
unpaid amount shall bear interest, to be paid upon demand, from the due date thereof until the date
of actual payment (and before as well as after judgment) computed at the per annum rate set forth
in the Agreement.



     This Term Note is one of the Notes referred to in the Agreement, is entitled to the benefits
thereof and may be prepaid in whole or in part subject to the terms and conditions provided
therein. Upon the occurrence and continuation of one or more of the Events of Default specified in
the Agreement, all amounts then remaining unpaid on this Term Note shall become, or may be declared
to be, as applicable, immediately due and payable all as provided in the Agreement. The Term Loan
made by the Lender shall be evidenced by one or more loan accounts or records maintained by the
Lender in the ordinary course of business. The Lender may also attach schedules to this Term Note
and endorse thereon the date, amount and maturity of its Term Loan and payments with respect
thereto.



     This Term Note, delivered in connection with the Agreement, is delivered in substitution for,
but not in payment of, that certain Term B Note dated November 5, 2005 made by the Borrower, in the
original principal amount of $1,000,000 (the “Existing Term Note”). All amounts
outstanding under the Existing Term Note are deemed outstanding under this Note.



     The Borrower, for itself, its successors and assigns, hereby waives diligence, presentment,
protest and demand and notice of protest, demand, dishonor and non-payment of this Term Note.



 









 





     THIS TERM NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
ILLINOIS.





	 	 	 	 	 	 	 
	 	 	WINTRUST FINANCIAL CORPORATION
	 
	 
	 

	 	By:	 	 	 	 
	 	 	 	 
	 

	 	 	 	 	Name: 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	 	Title:  	 
	 	 	 	 	 	 	 





 









 






Term Loan and payments made with respect thereto




	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	Amount of	 	 	 	 
	 	 	 	 	 	 	 	 	Principal or	 	Outstanding	 	 
	 	 	 	 	 	 	End of	 	Interest	 	Principal	 	 
	 	 	Type of	 	Amount of	 	Interest	 	Paid     This	 	Balance	 	Notation
	Date	 	Loan Made	 	Loan Made	 	Period	 	Date	 	This Date	 	Made By
	 
	 

	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 





 









 






EXHIBIT C




FORM OF COMPLIANCE CERTIFICATE




Financial Statement Date:                    




To:      Bank of America, N.A., as Administrative Agent




Ladies and Gentlemen:




     Reference is made to that certain Amended and Restated Credit Agreement, dated as of October
30, 2009 (as amended, restated, extended, supplemented or otherwise modified in writing from time
to time, the “Agreement;” the terms defined therein being used herein as therein defined),
among Wintrust Financial Corporation, an Illinois corporation (the “Borrower”), the Lenders
from time to time party thereto, and Bank of America, N.A., as Administrative Agent.



     The undersigned Responsible Officer hereby certifies as of the date hereof that he/she is the                                              
                                  
of the Borrower, and that, as such, he/she is authorized to execute and deliver this Certificate to
the Administrative Agent on the behalf of the Borrower, and that:



[Use following paragraph 1 for fiscal year-end financial statements]




     1.     The Borrower has delivered the year-end audited financial statements required by
Section 6.01(b) of the Agreement for the fiscal year of the Borrower ended as of the above
date, together with the report and opinion of an independent certified public accountant required
by such section.



[Use following paragraph 1 for fiscal quarter-end financial statements]




     1.     The Borrower has delivered the unaudited financial statements required by Section
6.01(a) of the Agreement for the fiscal quarter of the Borrower ended as of the above date.
Such financial statements fairly present the consolidated financial condition, results of
operations and shareholders’ equity of the Borrower in accordance with GAAP as at such date and for
such period, subject only to normal year-end audit adjustments and the absence of footnotes.



     2.     The undersigned has reviewed and is familiar with the terms of the Agreement and has made,
or has caused to be made under his/her supervision, a detailed review of the transactions and
condition (financial or otherwise) of the Borrower during the accounting period covered by such
financial statements.



     3.     A review of the activities of the Borrower during such fiscal period has been made under
the supervision of the undersigned with a view to determining whether during such fiscal period the
Borrower performed and observed all its Obligations under the Loan Documents, and



 









 






[select one:]




[to the best knowledge of the undersigned, during such fiscal period the Borrower performed and
observed each covenant and condition of the Loan Documents applicable to it, and no Default has
occurred and is continuing.]




—or—




[to the best knowledge of the undersigned, during such fiscal period the following covenants or
conditions have not been performed or observed and the following is a list of each such Default and
its nature and status:]




     4.     The financial covenant analyses and information set forth on Schedule 1 attached
hereto are true and accurate on and as of the date of the financial statements described above.



     IN WITNESS WHEREOF, the undersigned has executed this Certificate as
of                     ,                     .




	 	 	 	 	 	 	 
	 	 	WINTRUST FINANCIAL CORPORATION
	 
	 
	 

	 	By:	 	 	 	 
	 	 	 	 
	 

	 	Name:	 	 	 	 
	 

	 	 	 	 
	 

	 	Title:	 	 	 	 
	 	 	 	 








 











 





For the Quarter/Year ended

__________________(“Statement Date”)




SCHEDULE 1

to the Compliance Certificate

($ in 000’s)




	 	 	 	 	 	 	 	 	 	
	I.	 	Section 8(b) Return on Assets Ratio	 	 	 	 	
	 

	 	A.
	 	net income after taxes
	 	$	 	 	
	 

	 	 	 	 	 	 	 	 	
	 

	 	B.
	 	average of all assets
	 	$	 	 	
	 

	 	 	 	 	 	 	 	 	
	 

	 	C.
	 	Return on Assets Ratio (Line IA  ̧
Line IB):
	 		 	 	%
	 

	 	 	 	 	 	 	 	 	
	 	 	 	 	Minimum required	 	0.25%	
	 
	 	 	 	 	 	 	 	 	
	II.	 	Section 8(c) Tangible Equity Capital	 	$	 	 	
	 

	 	 	 	 	 	 	 	 	
	 	 	 	 	Minimum required	 	$670,000,000	
	 
	 	 	 	 	 	 	 	 	
	III.	 	Section 8(d) — Non Performing Loans to Primary Capital Ratio.	 	 	 	 	
	 

	 	A.
	 	Nonperforming Loans
	 	$	 	 	
	 

	 	 	 	 	 	 	 	 	
	 

	 	B.
	 	Other Real Estate owned
	 	$	 	 	
	 

	 	 	 	 	 	 	 	 	
	 

	 	C.
	 	other assets acquired through foreclosure or other
realization upon collateral or rearrangement or satisfaction of
Indebtedness
	 	$	 	 	
	 

	 	 	 	 	 	 	 	 	
	 

	 	D.
	 	Nonperforming Assets (Line IIIA + Line IIIB + Line IIIC)
	 	$	 	 	
	 

	 	 	 	 	 	 	 	 	
	 

	 	E.
	 	Tier 1 Capital
	 	$	 	 	
	 

	 	 	 	 	 	 	 	 	
	 

	 	F.
	 	loan loss reserve
	 	$	 	 	
	 

	 	 	 	 	 	 	 	 	
	 

	 	G.
	 	Subordinated Debt
	 	$	 	 	
	 

	 	 	 	 	 	 	 	 	
	 

	 	H.
	 	Primary Capital (Line IIIE + Line IIIF + Line IIIG)
	 	$	 	 	
	 

	 	 	 	 	 	 	 	 	
	 

	 	I.
	 	Non Performing Assets to Primary Capital ((Line IIID
 ̧ Line IIIG):
	 		 	 	%
	 

	 	 	 	 	 	 	 	 	
	 	 	 	 	Maximum permitted	 	30%	
	 
	 	 	 	 	 	 	 	 	
	IV.	 	Section 8(e) — Loan Loss Reserve Ratio.	 	 	 	 	
	 

	 	A.
	 	Designated reserve for loan losses
	 	$	 	 	
	 

	 	 	 	 	 	 	 	 	
	 

	 	B.
	 	Total loans:
	 	$	 	 	
	 

	 	 	 	 	 	 	 	 	
	 

	 	C.
	 	Loan Loss Reserve Ratio (Line IVA  ̧	 	 	 	 	






 









 






	 	 	 	 	 	 	 	 	 	
	 

	 	 	 	Line IVB):
	 		 	 	%
	 

	 	 	 	 	 	 	 	 	
	 	 	 	 	Minimum required	 	0.65%	
	 
	 	 	 	 	 	 	 	 	
	V.	 	Section 8(f) Bank Investments to Net Worth Ratio	 	 	 	 	
	 

	 	A.
	 	Bank Investments
	 	$	 	 	
	 

	 	 	 	 	 	 	 	 	
	 

	 	B.
	 	Net Worth
	 	$	 	 	
	 

	 	 	 	 	 	 	 	 	
	 

	 	C.
	 	Bank Investments to Net Worth Ratio (ratio of Line VA	 	 	 	 	
	 	 	 	 	to Line VC)	 	 	to 1.00
	 	 	 	 	Maximum permitted	 	1.25 to 1.00	
	 
	 	 	 	 	 	 	 	 	
	VI.	 	Section 8(g) Minimum Liquidity	 	$	 	 	
	 

	 	 	 	 	 	 	 	 	
	 	 	 	 	Minimum required	 	$10,000,000	







 









 








EXHIBIT D




ASSIGNMENT AND ASSUMPTION




     This Assignment and Assumption (this “Assignment and Assumption”) is dated as of the
Effective Date set forth below and is entered into by and between [the][each]1 Assignor identified
in item 1 below ([the][each, an] “Assignor”) and [the][each]2 Assignee identified in item 2
below ([the][each, an] “Assignee”). [It is understood and agreed that the rights and
obligations of [the Assignors][the Assignees]3 hereunder are several and not joint.]4 Capitalized
terms used but not defined herein shall have the meanings given to them in the Credit Agreement
identified below (the “Credit Agreement”), receipt of a copy of which is hereby
acknowledged by the Assignee. The Standard Terms and Conditions set forth in Annex 1 attached
hereto are hereby agreed to and incorporated herein by reference and made a part of this Assignment
and Assumption as if set forth herein in full.



     For an agreed consideration, [the][each] Assignor hereby irrevocably sells and assigns to [the
Assignee][the respective Assignees], and [the][each] Assignee hereby irrevocably purchases and
assumes from [the Assignor][the respective Assignors], subject to and in accordance with the
Standard Terms and Conditions and the Credit Agreement, as of the Effective Date inserted by the
Administrative Agent as contemplated below (i) all of [the Assignor’s][the respective Assignors’]
rights and obligations in [its capacity as a Lender][their respective capacities as Lenders] under
the Credit Agreement and any other documents or instruments delivered pursuant thereto to the
extent related to the amount and percentage interest identified below of all of such outstanding
rights and obligations of [the Assignor][the respective Assignors] under the respective facilities
identified below and (ii) to the extent permitted to be assigned under applicable law, all claims,
suits, causes of action and any other right of [the Assignor (in its capacity as a Lender)][the
respective Assignors (in their respective capacities as Lenders)] against any Person, whether known
or unknown, arising under or in connection with the Credit Agreement, any other documents or
instruments delivered pursuant thereto or the loan transactions governed thereby or in any way
based on or related to any of the foregoing, including, but not limited to, contract claims, tort
claims, malpractice claims, statutory claims and all other claims at law or in equity related to
the rights and obligations sold and assigned pursuant to clause (i) above (the rights and
obligations sold and assigned by [the][any] Assignor to [the][any] Assignee pursuant to clauses (i)
and (ii) above being referred to herein collectively as [the][an] “Assigned Interest”).
Each such sale and assignment is without recourse to [the][any] Assignor and, except as expressly
provided in this Assignment and Assumption, without representation or warranty by [the][any]
Assignor.



	 	 	 	 	 	 	 
	1.

	 	Assignor[s]:	 	 	 	 
	 

	 	 	 	 

	 	 
	 
	 	 	 	 	 	 
	 

	 	 	 	 

	 	 
	 
	 	 	 	 	 	 
	2.

	 	Assignee[s]:	 	 	 	 
	 

	 	 	 	 

	 	 
	 
	 	 	 	 	 	 
	 

	 	 	 	 

	 	 








 




			
	1	 	For bracketed language here and elsewhere in this form relating to
the Assignor(s), if the assignment is from a single Assignor, choose the first
bracketed language. If the assignment is from multiple Assignors, choose the
second bracketed language.
	 
	2	 	For bracketed language here and elsewhere in this form relating to
the Assignee(s), if the assignment is to a single Assignee, choose the first
bracketed language. If the assignment is to multiple Assignees, choose the
second bracketed language.
	 
	3	 	Select as appropriate.
	 
	4	 	Include bracketed language if there are either multiple Assignors
or multiple Assignees.




 









 










     [for each Assignee, indicate [Affiliate][Approved Fund] of [identify Lender]]



     3. Borrower(s): Wintrust Financial Corporation



     4. Administrative Agent: Bank of America, N.A., as the administrative agent under the
Credit Agreement



     5. Credit Agreement: Amended and Restated Credit Agreement, dated as of October 30,
2009, among Wintrust Financial Corporation, the Lenders from time to time party thereto, and Bank
of America, N.A., as Administrative Agent



     6. Assigned Interest[s]:



	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Aggregate	 	Amount of	 	Percentage
	 	 	 	 	 	 	Amount of	 	Commitment	 	Assigned of
	 	 	 	 	Facility	 	Commitment/Loans	 	/Loans	 	Commitment/
	Assignor[s]	 	Assignee[s]	 	Assigned	 	for all Lenders	 	Assigned	 	Loans
	 

	 	 	 	
	 	$
	 	$
	 	%
	 	 	 	 	 
	 	 
	 	 
	 	 
	 

	 	 	 	
	 	$
	 	$
	 	%
	 	 	 	 	 
	 	 
	 	 
	 	 
	 

	 	 	 	
	 	$
	 	$
	 	%
	 	 	 	 	 
	 	 
	 	 
	 	 





     [7. Trade Date: ___]5



     Effective Date: ___, 20___[TO BE INSERTED BY ADMINISTRATIVE AGENT AND WHICH
SHALL BE THE EFFECTIVE DATE OF RECORDATION OF TRANSFER IN THE REGISTER THEREFOR.]



     The terms set forth in this Assignment and Assumption are hereby agreed to:



	 	 	 	 	 
	 	 	ASSIGNOR
	 
	 	 	 	 
	 	 	[NAME OF ASSIGNOR]
	 
	 	 	 	 
	 

	 	By:	 	 
	 	 	 	 	 
	 	 	Title:		
	 

	 	 	 	 
	 
	 	 	 	 
	 	 	ASSIGNEE
	 
	 	 	 	 
	 	 	[NAME OF ASSIGNEE]
	 
	 	 	 	 
	 

	 	By:	 	 
	 

	 	 	 	 
	 	 	Title:		
	 

	 	 	 	 







 




			
	5	 	To be completed if the Assignor and the Assignee intend that the
minimum assignment amount is to be determined as of the Trade Date.




 









 










	 	 	 	 	 
	[Consented to and]6 Accepted:	 	 
	 
	 	 	 	 
	BANK OF AMERICA, N.A., as

Administrative Agent

By:	 	 
	 

	 	 	 	 
	Title:			 	 
	 

	 	 	 	 
	 
	 	 	 	 
	[Consented to:]7	 	 
	 
	 	 	 	 
	WINTRUST FINANCIAL CORPORATION	 	 
	 
	 	 	 	 
	By:
	 	 	 	 
	 

	 	 	 	 
	Title:			 	 
	 

	 	 	 	 







 




			
	6	 	To be added only if the consent of the Administrative Agent is
required by the terms of the Credit Agreement.
	 
	7	 	To be added only if the consent of the Borrower is required by the
terms of the Credit Agreement.




 









 










ANNEX 1 TO ASSIGNMENT AND ASSUMPTION

STANDARD TERMS AND CONDITIONS FOR

ASSIGNMENT AND ASSUMPTION




     1. Representations and Warranties.



     1.1. Assignor. [The][Each] Assignor (a) represents and warrants that (i) it is the legal and
beneficial owner of [the][[the relevant] Assigned Interest, (ii) [the][such] Assigned Interest is
free and clear of any lien, encumbrance or other adverse claim and (iii) it has full power and
authority, and has taken all action necessary, to execute and deliver this Assignment and
Assumption and to consummate the transactions contemplated hereby; and (b) assumes no
responsibility with respect to (i) any statements, warranties or representations made in or in
connection with the Credit Agreement or any other Loan Document, (ii) the execution, legality,
validity, enforceability, genuineness, sufficiency or value of the Loan Documents or any collateral
thereunder, (iii) the financial condition of the Borrower, any of its Subsidiaries or Affiliates or
any other Person obligated in respect of any Loan Document or (iv) the performance or observance by
the Borrower, any of its Subsidiaries or Affiliates or any other Person of any of their respective
obligations under any Loan Document.



     1.2. Assignee. [The][Each] Assignee (a) represents and warrants that (i) it has full power
and authority, and has taken all action necessary, to execute and deliver this Assignment and
Assumption and to consummate the transactions contemplated hereby and to become a Lender under the
Credit Agreement, (ii) it meets all the requirements to be an assignee under Section 10.06(b)(iii),
(v) and (vi) of the Credit Agreement (subject to such consents, if any, as may be required under
Section 10.06(b)(iii) of the Credit Agreement), (iii) from and after the Effective Date, it shall
be bound by the provisions of the Credit Agreement as a Lender thereunder and, to the extent of
[the][the relevant] Assigned Interest, shall have the obligations of a Lender thereunder, (iv) it
is sophisticated with respect to decisions to acquire assets of the type represented by [the][such]
Assigned Interest and either it, or the Person exercising discretion in making its decision to
acquire [the][such] Assigned Interest, is experienced in acquiring assets of such type, (v) it has
received a copy of the Credit Agreement, and has received or has been accorded the opportunity to
receive copies of the most recent financial statements delivered pursuant to Section ___thereof, as
applicable, and such other documents and information as it deems appropriate to make its own credit
analysis and decision to enter into this Assignment and Assumption and to purchase [the][such]
Assigned Interest, (vi) it has, independently and without reliance upon the Administrative Agent or
any other Lender and based on such documents and information as it has deemed appropriate, made its
own credit analysis and decision to enter into this Assignment and Assumption and to purchase
[the][such] Assigned Interest, and (vii) if it is a Foreign Lender, attached hereto is any
documentation required to be delivered by it pursuant to the terms of the Credit Agreement, duly
completed and executed by [the][such] Assignee; and (b) agrees that (i) it will, independently and
without reliance upon the Administrative Agent, [the][any] Assignor or any other Lender, and based
on such documents and information as it shall deem appropriate at the time, continue to make its
own credit decisions in taking or not taking action under the Loan Documents, and (ii) it will
perform in accordance with their terms all of the obligations which by the terms of the Loan
Documents are required to be performed by it as a Lender.



     2. Payments. From and after the Effective Date, the Administrative Agent shall make all
payments in respect of [the][each] Assigned Interest (including payments of principal, interest,
fees and other amounts) to [the][the relevant] Assignor for amounts which have accrued



 









 




to but excluding the Effective Date and to [the][the relevant] Assignee for amounts which have
accrued from and after the Effective Date.




     3. General Provisions. This Assignment and Assumption shall be binding upon, and inure to the
benefit of, the parties hereto and their respective successors and assigns. This Assignment and
Assumption may be executed in any number of counterparts, which together shall constitute one
instrument. Delivery of an executed counterpart of a signature page of this Assignment and
Assumption by telecopy shall be effective as delivery of a manually executed counterpart of this
Assignment and Assumption. This Assignment and Assumption shall be governed by, and construed in
accordance with, the law of the State of Illinois.




 











 





EXHIBIT E




FORM OF PLEDGE AGREEMENT




     This SECOND AMENDED AND RESTATED PLEDGE AND SECURITY AGREEMENT (this “Pledge
Agreement”) dated as of October [___], 2009, is made by WINTRUST FINANCIAL CORPORATION, an
Illinois corporation (the “Pledgor”), whose address is 727 North Bank Lane, Lake Forest,
Illinois 60045, for the benefit of BANK OF AMERICA, N.A. (“Bank of America”), as
Administrative Agent (as defined below) for the benefit of the Secured Parties (as defined below),
whose address is 135 South LaSalle Street, Chicago, Illinois 60603. Capitalized terms used but not
defined herein have the respective meanings given to them in the Credit Agreement (as defined
below).



RECITALS:



     WHEREAS. the Pledgor is the owner of the capital stock of each Subsidiary listed on Exhibit A
hereto (each is referred to herein as a “Pledged Subsidiary” and collectively as the
“Pledged Subsidiaries”);



     WHEREAS, the capital stock of the Pledged Subsidiaries owned by the Pledgor constitutes 100%
of the issued and outstanding capital stock of the Pledged Subsidiaries;



     WHEREAS, the Pledgor and Bank of America (as successor by merger to LaSalle Bank National
Association) entered into that certain Credit Agreement dated as of November 1, 2005 (as amended,
the “Existing Credit Agreement”) whereby Bank of America agreed to make loans to the
Pledgor;



     WHEREAS, the Existing Credit Agreement was secured pursuant to an Amended and Restated Pledge
and Security Agreement dated as of April 30, 2003 (the “Existing Pledge Agreement”); and



     WHEREAS, the Pledgor and the Bank of America have agreed to amend and restate the Existing
Credit Agreement pursuant to an Amended and Restated Credit Agreement dated as of the date hereof
(as such agreement may be amended, restated, supplemented or otherwise modified from time to time,
the “Credit Agreement”) among the Pledgor, various financial institutions party thereto as
lenders (the “Lenders”) and Bank of America, as administrative agent for the Lenders (in
such capacity, the “Administrative Agent”) and in connection therewith, the Pledgor and
Bank of America have agreed to amend and restate the Existing Pledge Agreement, it being the
intention of the Pledgor and Bank of America that the Credit Agreement shall not effect the
novation of the Pledgor under the Existing Credit Agreement or the Existing Pledge Agreement,
including, without limitation, the pledge of the Pledged Securities (as hereinafter defined).



     NOW, THEREFORE, in order to induce the Lenders to make the loan contemplated in the Credit
Agreement and in consideration of the mutual representations,



1









 





warranties, covenants and agreements set forth herein and therein, as applicable, and for
other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree as follows:




AGREEMENT



     1. Grant of Security Interest. To secure the Secured Obligations (as defined below),
the Pledgor hereby pledges and grants to the Administrative Agent for the benefit of the Secured
Parties a security interest in the following whether now or hereafter existing (collectively the
“Pledged Security”): (a) one hundred percent (100%) of the issued and outstanding capital
stock of the Pledged Subsidiaries, including all substitutions of and additions to, such stock; (b)
executed and undated stock powers for the capital stock described in (a) above, in form and content
satisfactory to the Administrative Agent duly executed in blank, containing all requisite federal
and state stock transfer tax stamps, if any; (c) all income and profits therefrom, all
distributions thereon, all other proceeds therefrom and all rights, benefits and privileges
pertaining to or arising from the Pledged Security; and (d) such other collateral that may be
provided after the date hereof to secure the Secured Obligation.



     2. Secured Obligation. The obligations secured by this Pledge Agreement are the
following (referred to collectively hereafter as the “Secured Obligations”):


          (a) all Obligations and all obligations and agreements of Pledgor contained in (including,
without limitation, the payment of all indebtedness of the Pledgor in respect of) the Loan
Documents, and any and all amendments, modifications or renewals thereof;


          (b) all sums advanced by, or on behalf of, the Secured Parties in connection with, or relating
to, the Credit Agreement, the Notes or the Pledged Security including, but not limited to, any and
all sums advanced to preserve the Pledged Security, or to perfect the Administrative Agent’s
security interest in the Pledged Security;


          (c) in the event of any proceeding to enforce the satisfaction of the Secured
Obligation, or any of them, or to preserve and protect the Secured Parties’ rights under the
Loan Documents or any other agreement, document or instrument relating to the transactions
contemplated in the Credit Agreement, the reasonable expenses of retaking, holding, preparing for
sale, selling or otherwise disposing of or realizing on the Pledged Security, or of any exercise by
the Administrative Agent or any Secured Party of its rights, together with reasonable attorneys
fees, expenses and court costs; and


          (d) any indebtedness, obligation or liability of the Pledgor or the Pledged Subsidiaries to
Bank of America, whether direct or indirect, joint or several, absolute or contingent, now or
hereafter existing, however created or arising and however evidenced.






2









 








     NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS PLEDGE AGREEMENT, THE PARTIES
HERETO AGREE THAT THE PLEDGED SECURITY SHALL IN NO EVENT BE CONSIDERED AS COLLATERAL FOR THE
SUBORDINATED NOTES.



     3. Additional Terms.


          (a) The Pledgor agrees that the Administrative Agent shall have, at any time an Event of
Default has occurred and is continuing, full and irrevocable right, power and authority to collect,
withdraw or receive all amounts due or to become due and payable upon, in connection with, or
relating to, the Pledged Security, to execute any withdrawal receipts respecting the Pledged
Security, and to endorse the name of the Pledgor on any or all documents, instruments or commercial
paper given in payment thereof, and at the Administrative Agent’s discretion to take any other
action, including, without limitation, the transfer of any Pledged Security into the Administrative
Agent’s own name or the name of any nominee for the Administrative Agent, which the Administrative
Agent may deem necessary or appropriate to preserve or protect the Administrative Agent’s interest
in any of the Pledged Security.


          (b) Unless an Event of Default has occurred and is continuing, the Pledgor shall be entitled
to vote any and all shares of the Pledged Security and to give consents, waivers and ratifications
in respect thereof, provided that no vote shall be cast, no consent, waiver or ratification shall
be given and no action shall be taken by the Pledgor which would violate or be inconsistent with
any of the terms of any Loan Documents, or which would have the effect of impairing the position or
interests of the Pledgor or any Secured Party. All such rights of the Pledgor to vote and to give
consents, waivers and ratifications shall cease upon the occurrence of and during the continuation
of any such Event of Default.


          (c) Unless an Event of Default has occurred and is continuing, shall have occurred, all
dividends and other distributions payable in respect of the Pledged Security shall be paid to the
Pledgor. Upon the occurrence of and during the continuation of any such Event of Default, all such
dividends and other distributions and payments shall be paid to the Administrative Agent. After
any such Event of Default shall have occurred, all such amounts paid in respect of the Pledged
Security shall, until paid or delivered to the Administrative Agent, be held in trust for the
benefit of the Administrative Agent for the benefit of the Secured Parties as additional Pledged
Security to secure the Secured Obligation.



     4. Representations, Warranties and Covenants. The Pledgor further represents,
warrants and agrees that:


          (a) The Pledgor (i) has not used any trade names, assumed names and/or prior corporate names
within the last five years, (ii) is not currently domesticated in, organized under the laws of, or
continuing its existence in (or under) the laws of any jurisdiction other than the State of
Illinois and (iii) has not changed its corporate structure or jurisdiction of organization in the
past four months.






3









 







          (b) There are no proceedings pending or contemplated for (i) the merger, consolidation,
conversion, dissolution, liquidation or termination of the Pledgor or (ii) the Pledgor’s transfer
to or domestication in any other jurisdiction.


          (c) The Pledgor is the legal, record and beneficial owner of, and has good and marketable
title to, the Pledged Security, subject to no lien, claim, security interest or other encumbrance,
except (i) the security interest created by this Pledge Agreement and (ii) any Liens permitted by
Section 7.01(c) of the Credit Agreement. As of the date hereof, Exhibit A sets forth the number of
shares of capital stock of each of the Pledged Subsidiaries authorized and outstanding.


          (d) The Pledgor will not sell, assign, transfer, exchange or otherwise dispose of, or grant
any option with respect to, the Pledged Security, nor will it create, incur or permit to exist any
lien, claim, security interest or other encumbrance with respect to any of the Pledged Security, or
any interest therein, or any proceeds thereof, except for (i) the security interest created by this
Pledge Agreement and (ii) any Liens permitted by Section 7.01(c) of the Credit Agreement. The
Pledgor agrees that it will not, and it will not permit any Pledged Subsidiary which has issued
Pledged Securities to: (i) issue or reissue any capital stock or other securities (or warrants
therefor or other rights with respect thereto) in addition to or issue other securities of any
nature in exchange or substitution for any of the Pledged Security, (ii) declare any stock dividend
or split or otherwise change the equity capital structure of such Pledged Subsidiary or (iii)
redeem any of the Pledged Security, unless, in each case, the Pledgor shall have first notified the
Administrative Agent of such action and the Pledgor simultaneously with taking such action delivers
to the Administrative Agent such stock certificates and other documents (together with appropriate
stock powers executed in blank and other assignment documents) as the Administrative Agent may
reasonably request so that, after giving effect to such delivery, the Pledgor shall continue to
have pledged 100% of the outstanding capital stock, warrants or other rights of such Pledged
Subsidiary.


          (e) All of the shares of the Pledged Security have been duly and validly issued and are fully
paid and non-assessable.


          (f) To the extent the Pledged Security is represented by certificated securities, the pledge
and delivery of such certificates pursuant to this Pledge Agreement creates a valid perfected
security interest in such Pledged Security, and the proceeds thereof, subject to no prior lien,
claim, security interest or other encumbrance or to any agreement purporting to grant to any third
party a perfected security interest in the assets of the Pledgor which would include any of the
Pledged Security. The Pledgor will at all times defend the Administrative Agent’s right, title and
security interest in and to the Pledged Security and the proceeds thereof against any and all
claims and demands of any person adverse to the claims of the Administrative Agent or any Secured
Party.


          (g) The Pledgor will take, and will cause the Pledged Subsidiaries to take, such action and to
execute such documents as the Administrative Agent may from time to time reasonably request
relating to the Pledged Security or the proceeds thereof.






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          (h) The Pledgor has full right, power and authority to enter into, to execute and to deliver
this Pledge Agreement and this Pledge Agreement is binding upon, and enforceable against the
Pledgor in accordance with its terms subject to applicable bankruptcy, insolvency, reorganization,
moratorium and other similar laws affecting the enforcement of creditors’ rights generally and
subject to general principles of equity, regardless of whether considered in a proceeding in equity
or at law.


          (i) The Pledgor shall pay any fees, assessments, charges or taxes arising with respect to the
Pledged Security. In case of failure by the Pledgor to pay any such taxes, assessments, charges or
taxes, the Administrative Agent shall have the right, but shall not be obligated, to pay such fees,
assessments, charges or taxes, as the case may be, and, in that event, the cost thereof shall be
payable by the Pledgor to the Administrative Agent immediately upon demand together with interest
at the rate equal to the Default Rate set forth in Section 2.06(b) of the Credit Agreement from the
date of disbursement by the Administrative Agent to the date of payment by the Pledgor.


          (j) None of the Pledged Security constitutes margin stock, as defined in Regulation U of the
Board of Governors of the Federal Reserve System.



     5. Rights of Parties upon Event of Default.


          (a) If an Event of Default has occurred and is continuing, in addition to all the rights,
powers and remedies the Administrative Agent shall be entitled to exercise, whether vested in the
Administrative Agent by the terms of any Loan Document, by law, in equity, by statute (including,
without limitation, Article 9 of the Illinois Uniform Commercial Code) or otherwise, for the
protection and enforcement of the Administrative Agent’s rights in respect of the Pledged Security,
the Administrative Agent may be entitled to, without limitation (but is under no obligation to the
Pledgor so to do):




     (i) transfer all or any part of the Pledged Security into the Administrative
Agent’s name or the name of its nominee or nominees;




     (ii) after first obtaining all necessary regulatory approvals, vote all or any
part of the Pledged Security (whether or not transferred into the name of the
Administrative Agent or any nominee) and give all consents, waivers and
ratifications in respect of the Pledged Security and otherwise act with respect
thereto as though it were the outright owner thereof;




     (iii) at any time or from time to time, sell, assign and deliver, or grant
options to purchase, all or any part of the Pledged Security, or any interest
therein, at any public or private sales, without demand of performance,
advertisement or notice of intention to sell or of the time or place of sale or
adjournment thereof or to redeem or otherwise (all of which are hereby waived by
the Pledgor), for cash, on credit or for other property, for immediate or future
delivery without any assumption of credit risk and for such price or prices and on
such terms as the



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Administrative Agent in its absolute discretion may determine, provided that
unless, in the sole discretion of the Administrative Agent, any of the Pledged
Security threatens to decline in value or is or becomes a type sold on a recognized
market, the Administrative Agent will give the Pledgor reasonable notice of the
time and place of any public sale thereof, or of the time after which any private
sale or other intended disposition is to be made. Any requirements of reasonable
notice shall be met if such notice is mailed to the Pledgor as provided in
Paragraph 13 below, at least fifteen (15) days before the time of the sale
or disposition. Any sale of any of the Pledged Security conducted in conformity
with customary practices of banks, insurance companies or other financial
institutions disposing of property similar to the Pledged Security shall be deemed
to be commercially reasonable. Any remaining Pledged Security shall remain subject
to the terms of this Pledge Agreement; and




     (iv) collect any and all money due or to become due and enforce in the
Pledgor’s name all rights with respect to the Pledged Security.


          (b) Pledgor agrees to cause each Pledged Subsidiary to give the Administrative Agent, any
prospective purchaser of the Pledged Security (pursuant to paragraph 5(a)(iii)) and their
respective representatives, reasonable access to further information (including, but not limited
to, records, files, correspondence, tax work papers and audit work papers) relating to or
concerning the Pledgor or such Pledged Subsidiary.



     6. Remedies Cumulative. Each right, power and remedy of the Administrative Agent
provided in this Pledge Agreement or now or hereafter existing at law, in equity, by statute or
otherwise shall be cumulative and concurrent and shall be in addition to every other right, power
and remedy provided for in this Pledge Agreement or now or hereafter existing at law, in equity, by
statute or otherwise. The exercise or partial exercise by the Administrative Agent of any one or
more of such rights, powers or remedies shall not preclude the simultaneous or later exercise by
the Administrative Agent of all such other rights, powers and remedies, and no failure or delay on
the part of the Administrative Agent to exercise any such right, power or remedy shall operate as a
waiver thereof.



     7. Waiver or Defenses. No renewal or extension of the time of payment of the Secured
Obligation, nor any release, surrender of, or failure to perfect or enforce any security interest
for the Secured Obligation; no release of any person primarily or secondarily liable on the Secured
Obligation (including any maker, endorser, or guarantor); no delay in enforcement of payment of the
Secured Obligation; and no delay or omission in exercising any right, power or remedy with respect
of the Secured Obligation or any security agreement securing the Secured Obligation shall affect
the rights of the Administrative Agent in the Pledged Security.



     8. Waiver. Waiver by the Administrative Agent of any Event of Default under the
Credit Agreement, or of any breach of the provisions of this Pledge Agreement



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by the Pledgor, or any right of the Administrative Agent hereunder, shall not constitute a
waiver of any other Event of Default or breach or right, nor the same Event of Default or breach or
right on a future occasion.




     9. Law Governing. This Pledge Agreement and the rights and obligations of the parties
hereunder shall be construed and interpreted in accordance with the law of the State of Illinois
applicable to agreements made and to be wholly performed in such state. Whenever possible, each
provision or this Pledge Agreement shall be interpreted in such manner as to be effective and valid
under applicable law; provided, if any provision of this Pledge Agreement shall be held to be
prohibited or invalid under applicable law, such provision shall be ineffective only to the extent
of such prohibition or invalidity, without invalidating the remainder of such provision or the
remaining provisions of this Pledge Agreement.



     10. The Pledgor’s Obligations Absolute. The obligations of the Pledgor under this
Pledge Agreement shall be absolute and unconditional and shall remain in full force and effect
without regard to, and shall not be released, discharged or in any way impaired by any circumstance
whatsoever, including without limitation: (a) any amendment or modification of the Notes, the
Credit Agreement or any other document or instrument provided for herein or therein or related
hereto or thereto, or any assignment, transfer or other disposition of any thereof; (b) any waiver,
consent, extension, indulgence or other action or inaction under or in respect of any such document
or instrument or any exercise or non-exercise of any right, remedy, power or privilege under or in
respect of any such document or instrument or this Pledge Agreement; (c) any bankruptcy,
insolvency, reorganization, arrangement, readjustment, composition, liquidation, or similar
proceeding with respect to the Pledgor or any of its properties or creditors; or (d) any limitation
on the Pledgor’s liabilities or obligations under any such instrument or any invalidity or lack of
enforceability, in whole or in part, of any such document or instrument or any term thereof;
whether or not the Pledgor shall have notice or knowledge of the foregoing.



     11. Termination. This Pledge Agreement shall terminate upon the receipt by the
Administrative Agent of evidence satisfactory to the Administrative Agent, in the Administrative
Agent’s sole and absolute discretion, of the payment in full of the Obligations (other than
contingent unliquidated indemnification obligations which survive the termination of any Loan
Document) and termination of the Revolving Credit Commitments; provided, however, that if at the
time of such payment, an Event of Default exists, then this Pledge Agreement shall not terminate
until payment in full of the Secured Obligations (other than contingent unliquidated
indemnification obligations which survive the termination of any Loan Document) and termination of
the Revolving Credit Commitments. At the time of such termination, the Administrative Agent, at
the request and expense of the Pledgor, will execute and deliver to the Pledgor a proper instrument
or instruments acknowledging the satisfaction and termination of this Pledge Agreement, and will
duly assign, transfer and deliver to the Pledgor such of the Pledged Security as has not yet
theretofore been sold or otherwise applied or released pursuant to this Pledge Agreement.



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     12. Further Assurances. The Pledgor shall, at its expense, duly execute, acknowledge
and deliver all such instruments and take all such action as the Administrative Agent from time to
time may request in order to further effectuate the purposes of this Pledge Agreement and to carry
out the terms hereof. The Pledgor, at its expense, at all times, shall cause this Pledge Agreement
(or a proper notice or statement, in respect hereof) to be duly recorded, published and filed and
rerecorded, republished and reified in such manner and in such places, if any, and shall pay or
cause to be paid all such recording, filing and other taxes, fees and charges, if any, and will
comply with all such statutes and regulations, if any, as may be required by law in order to
establish, perfect, preserve and protect the rights and security interests of the Administrative
Agent hereunder.



     13. Notices. All communications provided for or related hereto shall be given in
accordance with Paragraph 11.02 of the Credit Agreement.



     14. Amendments. Any term of this Pledge Agreement may be amended only with the
written consent of the Pledgor and the Administrative Agent. Any amendment effected in accordance
with this Paragraph 14 shall be binding upon (i) each current and future Secured Party; and
(ii) the Pledgor.



     15. Assigns. This Pledge Agreement and all rights and liabilities hereunder and in
and to any and all Pledged Security shall inure to the benefit of the Administrative Agent and its
successors and assigns, and shall be binding on the Pledgor and the Pledgor’s successors and
assigns; provided, however, the Pledgor may not assign its rights or liabilities hereunder or to
any of the Pledged Security without the written consent of the Administrative Agent.



     16. Miscellaneous. This Pledge Agreement embodies the entire agreement and
understanding between the Administrative Agent and the Pledgor and supersedes all prior agreements
and understandings relating to the subject matter hereof (including the Existing Pledge Agreement).
The headings in this Pledge Agreement are for purposes of reference only and shall not limit or
otherwise affect the meaning hereof.



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     The Pledgor acknowledges that this Pledge Agreement is and shall be effective upon execution
by the Pledgor and delivery to and acceptance hereof by the Administrative Agent, and it shall not
be necessary for the Administrative Agent to execute any acceptance hereof or otherwise to signify
or express its acceptance hereof to the Pledgor.



	 	 	 	 	 
	 	WINTRUST FINANCIAL CORPORATION
 	 



	 	 	 	 
	 
	 	By: 	 
	 
	 	 	
	 
	 	 	Name:
	 
	 	 	Title: