exv10w1



 







Exhibit 10.1




CREDIT AGREEMENT




among




INTEGRA BANK CORPORATION




as Borrower,




SUNTRUST BANK,




as Agent,




and the BANKS named herein




As of August 5, 2005




 









 








CREDIT AGREEMENT




     CREDIT AGREEMENT dated as of August 5, 2005 among INTEGRA BANK CORPORATION, an Indiana
corporation (the “Borrower”), each of the banks named on the signature pages hereto under
the caption “Banks” (individually, a “Bank” and, collectively, the “Banks”) and
SUNTRUST BANK, as agent for the Banks (in such capacity, together with its successors in such
capacity, the “Agent”).



     WHEREAS, the Borrower has requested that the Agent and Banks make available to it revolving
credit loans in an aggregate amount not exceeding $15,000,000 at any time, and the Agent and Banks
are willing to make available such revolving credit loans upon the terms and conditions hereof.



     NOW, THEREFORE, the parties hereto agree as follows:



SECTION 1. DEFINITIONS AND ACCOUNTING




     1.1 Defined Terms. As used herein, the following terms shall have the following
meanings (terms defined in this Section 1.1 or in other provisions of this Agreement in the
singular to have correlative meanings when used in the plural and vice versa):



     “Acquisition” means any transaction or series of related transactions for the purpose
of, or resulting, directly or indirectly, in (a) the acquisition of all or substantially all the
assets of a Person, or of any business or division of a Person, (b) the acquisition of in excess of
50% of the capital stock, partnership interest, membership interest, or equity of any Person, or
otherwise causing any Person to become a Subsidiary, or (c) a merger or consolidation of, or any
other combination with, another Person (other than a Person that is a Subsidiary), provided that
the Borrower or a Subsidiary is the surviving entity.



     “Agreement” means this Credit Agreement, as amended, modified, or supplemented from
time to time.



     “Administrative Questionnaire” shall mean, with respect to each Bank, an
administrative questionnaire in the form prepared by the Agent and submitted to the Agent by such
Bank.



     “Applicable Lending Office” shall mean, for each Bank and for each type of Loan, the
lending office of such Bank designated for such type of Loan on Schedule 1 hereto or such
other office of such Bank as such Bank may from time to time specify to the Agent and the Borrower
as the office by which its Loans of such type are to be made and maintained.



     “Applicable Margin” means, for Federal Funds Rate Loans and Eurodollar Loans, 1.25%
per annum.



     “Approved Fund” shall mean 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 business and that is administered or managed by
(i) a Bank, (ii) an Affiliate of a Bank or (iii) an entity or an Affiliate of an entity that
administers or manages a Bank.



 









 





     “Assignment and Acceptance” shall mean an assignment and acceptance entered into by a
Lender and an assignee (with the consent of any party whose consent is required by Section
11.5(b)) and accepted by the Agent, in the form of Exhibit C attached hereto or any
other form approved by the Agent.



     “Authorized Officer” shall mean, with respect to the giving of a notice of borrowing
pursuant to Section 2.2, each of the Persons named on Schedule 5 and any other
Person identified in a notice from a Person who is then an Authorized Officer to the Agent as being
an “Authorized Officer.” Any “Authorized Officer” shall cease to be such at any time that a Person
who is an Authorized Officer shall provide notice to the Agent that the named Authorized Officer
has ceased to be an Authorized Officer; provided, that the Agent shall be fully protected in
accepting and acting on borrowing notices or other notices from any Person who is an Authorized
Officer prior to actual receipt of notice of such cessation and such notices shall bind the
Borrower.



     “Base Rate” shall mean the higher of (i) the per annum rate which the Agent publicly
announces from time to time to be its prime lending rate, as in effect from time to time, and (ii)
the Federal Funds Rate, as in effect from time to time, plus one-half of one percent (0.50%). The
Agent’s prime lending rate is a reference rate and does not necessarily represent the lowest or
best rate charged to customers. The Agent may make commercial loans or other loans at rates of
interest at, above or below the Agent’s prime lending rate. Each change in the Agent’s prime
lending rate shall be effective from and including the date such change is publicly announced as
being effective.



     “Base Rate Loans” shall mean Loans the interest rates on which are determined on the
basis of the Base Rate.



     “Business Day” shall mean any day on which commercial banks are not authorized or
required by law to close in Atlanta, Georgia, and, if such day relates to a Conversion, notice,
payment, or other transaction in respect of a Eurodollar Loan or the first or last day of an
Interest Period, a day which is also a day on which dealings in Dollar deposits are carried out in
the London interbank market.



     “Capital Lease Obligations” shall mean, as to any Person, the obligations of such
Person which are required to be accounted for as capital leases on a balance sheet of such Person
under GAAP and, for purposes of this Agreement, the amount of such obligations shall be the
capitalized amount thereof determined in accordance with GAAP.



     “Change in Control” shall mean, with respect to any Person, the acquisition by any
Person or two or more Persons acting in concert of beneficial ownership (within the meaning of Rule
13d-3 of the Securities and Exchange Commission under the Securities Exchange Act of 1934 as
amended) of 25% or more of the voting stock of such Person.



     “Code” shall mean the Internal Revenue Code of 1986 as amended from time to time.



     “Commitment” shall mean, as to each Bank, the obligation of such Bank to make Loans to
the Borrower under this Agreement in an aggregate amount not at any time exceeding the amount set
forth opposite the name of such Bank in the “Commitment” column in Schedule 1 or,



 









 







where the context so requires, the amount of such obligation, as the same may be reduced from
time to time pursuant to Section 2.3 or increased pursuant to Section 2.11.



     “Consolidated Subsidiary” shall mean each Subsidiary (whether now existing or
hereafter created or acquired) the financial statements of which are required to be consolidated
with the financial statements of the Borrower in accordance with GAAP.



     “Continue,” “Continuation,” and “Continued” shall refer to the
continuation pursuant to Section 2.4 hereof of a Eurodollar Loan as a Eurodollar Loan from
one Interest Period to the next Interest Period.



     “Convert,” “Conversion” and “Converted” shall refer to a conversion pursuant to
Section 2.4 hereof of Loans of one type into Loans of another type.



     “Credit Extension” shall mean the making of any Loan.



     “Default” shall mean an Event of Default or an event that with notice or lapse of time
or both would become an Event of Default.



     “Dollars” and “$” shall mean lawful money of the United States of America.



     “Double Leverage Ratio” means the ratio of



     (a) equity investments of the Borrower in its Subsidiaries



          to




     (b) (i) consolidated shareholders’ equity of the Borrower and its Subsidiaries [plus (ii), to
the extent treated as in Tier 1 Capital (as defined under applicable federal banking regulations),
Trust Preferred Securities.



     “Eligible Assignee” shall mean (i) a Bank; (ii) an Affiliate of a Bank; (iii) an
Approved Fund; and (iv) any other Person (other than a natural Person) approved by the Agent, and
unless (x) such Person is taking delivery of an assignment in connection with physical settlement
of a credit derivatives transaction or (y) an Event of Default has occurred and is continuing, the
Borrower (each such approval not to be unreasonably withheld or delayed). If the consent of the
Borrower to an assignment or to an Eligible Assignee is required hereunder (including a consent to
an assignment which does not meet the minimum assignment thresholds specified in paragraph (b)(i)
of Section 11.5), the Borrower shall be deemed to have given its consent five Business Days after
the date notice thereof has actually been delivered by the assigning Bank (through the Agent) to
the Borrower, unless such consent is expressly refused by the Borrower prior to such fifth Business
Day.



     “Environmental Laws” shall mean all federal, state, and local laws, including
statutes, regulations, ordinances, codes, rules, and other governmental restrictions and
requirements, relating to the release or discharge of air pollutants, water pollutants, or process
waste water or otherwise relating to the environment or hazardous substances or the treatment,
processing, storage, disposal, release, transport, or other handling thereof, including, but not
limited to, the



 









 







federal Solid Waste Disposal Act, the federal Clean Air Act, the federal Clean Water Act, the
federal Resource Conservation and Recovery Act, the federal Hazardous Materials Transportation Act,
the federal Comprehensive Environmental Response, Compensation, and Liability Act of 1980, the
federal Toxic Substances Control Act, regulations of the Nuclear Regulatory Agency, and regulations
of any state department of natural resources or state environmental protection agency, in each case
as now or at any time hereafter in effect.



     “ERISA” shall mean the Employee Retirement Income Security Act of 1974 as amended from
time to time.



     “ERISA Affiliate” shall mean any corporation or trade or business that is a member of
the same controlled group of corporations (within the meaning of Section 414(b) of the Code) as the
Borrower or is under common control (within the meaning of Section 414(c) of the Code) with the
Borrower.



     “Eurodollar Loans” shall mean Loans the interest rates on which are determined on the
basis of rates referred to in the definition of “LIBOR Rate.”



     “Event of Default” shall have the meaning attributed thereto in Section 9
hereof.



     “Fed Funds Rate Loans” shall mean Loans the interest rates on which are determined on
the basis of rates referred to in the definition of “Fed Funds Rate.”



     “Federal Funds Rate” shall mean, for any day, the rate per annum (rounded upwards, if
necessary, to the next 1/100th of 1%) equal to the weighted average of the rates on overnight
Federal funds transactions with member banks of the Federal Reserve System arranged by Federal
funds brokers, as published by the Federal Reserve Bank of New York on the next succeeding Business
Day or if such rate is not so published for any Business Day, the Federal Funds Rate for such day
shall be the average rounded upwards, if necessary, to the next 1/100th of 1% of the quotations for
such day on such transactions received by the Agent from three Federal funds brokers of recognized
standing selected by the Agent. The rate applicable to Fed Funds Rate Loans will change upon any
change in the Federal Funds Rate.



     “Foreign Bank” shall mean any Bank that is not a United States person under Section
7701(a)(3) of the Code.



     “GAAP” shall mean generally accepted accounting principles as in effect from time to
time.



     “Guarantee” shall mean (a) a guarantee, an endorsement, a contingent agreement to
purchase or to furnish funds for the payment or maintenance of, or otherwise to be or become
contingently liable under or with respect to, the Indebtedness, other obligations, net worth,
working capital, or earnings of any Person, (b) a guarantee of the payment of dividends or other
distributions upon the stock or other equity interests of any Person, or (c) an agreement to
purchase, sell, or lease (as lessee or lessor) property or services primarily for the purpose of
enabling a debtor to make payment of such debtor’s obligations or to assure a creditor against
loss, including causing a bank or other financial institution to issue a letter of credit or other
similar instrument for the benefit of another Person, but excluding endorsements for collection or



 









 







deposit in the ordinary course of business. The terms “Guarantee” and
“Guaranteed” shall have correlative meanings.



     “Indebtedness” shall mean, as to any Person: (a) obligations created, issued, or
incurred by such Person in respect of deposits taken or for borrowed money (whether by loan or by
the issuance and sale of certificates of deposit or debt securities or the sale of property to
another Person subject to an understanding, contingent or otherwise, to repurchase such property
from such Person); (b) obligations of such Person to pay the deferred purchase or acquisition price
of property or services, other than trade accounts payable (other than for borrowed money) arising
in the ordinary course of business so long as such trade accounts payable are not past due; (c)
obligations of others secured by a Lien on the property of such Person, whether or not the
respective obligations so secured have been assumed by such Person; (d) obligations of such Person
in respect of letters of credit or similar instruments issued or accepted by banks and other
financial institutions for the account of such Person; (e) Capital Lease Obligations of such
Person; and (f) Indebtedness of others Guaranteed by such Person.



     “Interest Period” shall mean, with respect to any Eurodollar Loan, each period
commencing on the date such Eurodollar Loan is made or Converted from a Base Rate Loan or a Fed
Funds Rate Loan or the last day of the next preceding Interest Period for such Eurodollar Loan and
ending on the numerically corresponding day in the first, second, third or sixth calendar month
thereafter, as the Borrower may select, except that each Interest Period which commences on the
last Business Day of a calendar month (or on any day for which there is no numerically
corresponding day in the appropriate subsequent calendar month) shall end on the last Business Day
of the appropriate subsequent calendar month; provided, that each Interest Period which would
otherwise end on a day which is not a Business Day shall end on the next succeeding Business Day
or, if such next succeeding Business Day falls in the next succeeding calendar month, on the next
preceding Business Day.



     “Investment” in any Person shall mean: (a) the acquisition of capital stock, bonds,
notes, debentures, partnership, or other ownership interests, other securities, or Indebtedness of
such Person; (b) any deposit with, or loan or other extension of credit to, such Person; (c) any
Guarantee of Indebtedness or other liabilities of such Person; and (d) any amount committed to be
lent to such Person.



     “LIBOR Base Rate” shall mean, for any applicable Interest Period with respect to any
Eurodollar Loan, the British Bankers’ Association Interest Settlement Rate per annum for deposits
in Dollars for a period equal to such Interest Period appearing on the display designated as Page
3750 on the Dow Jones Service (or such other page on that service or such other service designated
by the British Bankers’ Association for the display of such Association’s Interest Settlement Rates
for Dollar deposits) as of 11:00 a.m. (London, England time) on the day that is two Business Days
prior to the first day of the Interest Period or if such Page 3750 is unavailable for any reason at
such time, the rate which appears on the Reuters Screen ISDA Page as of such date and such time;
provided, that if the Agent determines that the relevant foregoing sources are unavailable
for the relevant Interest Period, LIBOR Base Rate shall mean the rate of interest determined by the
Agent to be the average (rounded upward, if necessary, to the nearest 1/100th of 1%) of
the rates per annum at which deposits in Dollars are offered to the Agent two (2) Business Days
preceding the first day of such Interest Period by leading banks in the London



 









 







interbank market as of 10:00 a.m. (Atlanta, Georgia time) for delivery on the first day of
such Interest Period, for the number of days comprised therein and in an amount comparable to the
amount of the Eurodollar Loan of the Agent.



     “LIBOR Rate” shall mean, for any Eurodollar Loan for any Interest Period therefor, a
rate per annum (rounded upwards, if necessary, to the nearest 1/100 of 1%) determined by the Agent
to be equal to (x) the LIBOR Base Rate for such Loan for such Interest Period divided by (y) the
remainder of 1 minus the Reserve Requirement for such Loan for such Interest Period.



     “Lien” shall mean, with respect to any property of any Person, any mortgage, lien,
pledge, charge, security interest, or encumbrance of any kind in respect thereof, including the
interest of a vendor or lessor under any conditional sale, security lease, or other title retention
agreement with respect to any property purchased, leased, or otherwise held by such Person.



     “Loan” shall mean each portion of any Revolving Credit Loan made by a Bank pursuant to
Section 2.2 that is subject to a particular interest rate election (and, in the case of
Eurodollar Loans, a particular Interest Period) and any portion of any thereof that the Borrower
has elected to be subject to a particular interest rate election (and, in the case of Eurodollar
Loans, a particular Interest Period) under Section 2.4.



     “Loan Documents” shall mean, collectively, this Agreement, the Notes (if any), and any
and all other instruments, agreements, documents and writings executed in connection with any of
the foregoing.



     “Majority Banks” shall mean at any time Banks holding at least 51% of the unpaid
principal amount of the Loans; provided, that if no Loan is then outstanding, “Majority Banks”
shall mean Banks having at least 51% of the aggregate amount of the Commitments.



     “Margin Stock” shall mean margin stock within the meaning of Regulations U and X.



     “Multiemployer Plan” shall mean a multiemployer plan defined as such in Section 3(37)
of ERISA to which contributions have been made by the Borrower or any ERISA Affiliate and which is
covered by Title IV of ERISA.



     “Nonperforming Loans” shall have the meaning attributed thereto in Section
8.4(d).



     “Notes” shall mean the promissory notes provided for by Section 2.8 hereof.



     “Participant” shall have the meaning attributed thereto in Section 11.5(d).



     “PBGC” shall mean the Pension Benefit Guaranty Corporation or any entity succeeding to
any or all of its functions under ERISA.



     “Percentage” shall mean, as to each Bank, the percentage set forth in the “Percentage”
column opposite the name of such Bank in Schedule 1, as the same may be amended in
accordance with this Agreement.



 









 





     “Person” shall mean any individual, corporation, company, limited liability company,
voluntary association, partnership, trust, estate, unincorporated organization, or government (or
any agency, instrumentality, or political subdivision thereof).



     “Plan” shall mean an “employee pension benefit plan” within the meaning of Section
3(2) of ERISA other than a Multiemployer Plan.



     “Post-Default Rate” shall mean a rate per annum equal to 2% above the Base Rate as in
effect from time to time.



     “Quarterly Dates” shall mean the last Business Day of each March, June, September, and
December.



     “Regulations D, U, and X” shall mean, respectively, Regulations D, U, and X of the
Board of Governors of the Federal Reserve System (or any successor), as the same may be amended or
supplemented from time to time.



     “Regulatory Change” shall mean any change after the date of this Agreement in federal,
state, or foreign law or regulations (including, without limitation, Regulation D) or the adoption,
modification, or making after such date of any interpretation, guideline, directive, or request
applying to a Bank (whether or not having the force of law) by any court or governmental,
regulatory, or monetary authority.



     “Related Parties” shall mean, with respect to any specified Person, such Person’s
Affiliates and the respective directors, officers, employees, agents and advisors of such Person
and such Person’s Affiliates.



     “Reserve Requirement” shall mean, (a) for any Interest Period for any Eurodollar Loan,
the sum (expressed as a decimal) of the average maximum rate at which reserves (including any
marginal, supplemental, or emergency reserves) are required to be maintained during such Interest
Period under Regulation D by member banks of the Federal Reserve System against “Eurocurrency
liabilities” and (b) for any Fed Funds Rate Loan or Eurodollar Loan, any other reserves required to
be maintained by such member banks by reason of any Regulatory Change against (i) any category of
liabilities that includes deposits by reference to which the Fed Funds Rate or the LIBOR Base Rate
is to be determined or (ii) any category of extensions of credit or other assets that includes a
Fed Funds Rate Loan or a Eurodollar Loan.



     “Revolving Credit Loan” shall mean Loans made on or before the Revolving Credit
Commitment Termination Date pursuant to Section 2.2.



     “Revolving Credit Commitment Termination Date” shall mean [July 28, 2006,] as such
date may be extended pursuant to Section 2.10.



     “Subordinated Indebtedness” shall mean any Indebtedness of the Borrower however
evidenced which by its terms is expressly subordinate and junior in right of payment to the prior
payment of the obligations of the Borrower hereunder and under the Notes on terms satisfactory to
the Banks.



 









 





     “Subsidiary” shall mean any Person (a) of which at least a majority of the outstanding
shares of stock or other ownership interests having by the terms thereof ordinary voting power to
elect a majority of the board of directors or other governing body of such Person (irrespective of
whether any other class of stock or other ownership interests might have voting power by reason of
the happening of any contingency) is at the time directly or indirectly owned or controlled by the
Borrower or (b) that is a Subsidiary Bank.



     “Subsidiary Bank” shall mean any Person that is an “insured depository institution”
within the meaning of 12 U.S.C. §1813(c), as amended, and that is “controlled” by the Borrower
within the meaning of 12 U.S.C. §1841(a), as amended.



     “Tangible Net Worth” shall mean at any date the total shareholders’ equity (including
additional paid-in capital, retained earnings, and capital reserves, but excluding (notwithstanding
GAAP) any adjustments made pursuant to Financial Accounting Standard 115 plus the amount of
the Trust Preferred Securities to the extent treated as Tier 1 Capital of the Borrower under
applicable regulations of the Board of Governors of the Federal Reserve System, minus the
cost of common stock reacquired by the Borrower and other capital accounts of the Borrower at such
date, minus goodwill, patents, trademarks, service marks, trade names, copyrights, and all
intangible assets and all items that are treated as intangible assets under GAAP or that otherwise
fit within the definition of “intangible assets” in the instructions for call reports of the
Federal Deposit Insurance Corporation (“FDIC”).



     “Tier One Capital” shall have the same meaning as that determined under the capital
formula used by the Federal Reserve Board.



     “Total Credits” shall mean at any time the sum of the aggregate outstanding principal
amount of Loans.



     “Trust Guarantee” shall mean any guarantee of the Borrower of the Trust Preferred
Securities, which guarantee is subordinate and junior in right of payment to the prior payment of
the obligations of the Borrower hereunder and under the Notes on terms satisfactory to the Agent.



     “Trust Indebtedness” shall mean Indebtedness of the Borrower payable to the Trust
Issuer or its transferees (a) which is due not earlier than the date thirty (30) years after its
issuance, (b) which may not be redeemed earlier than five (5) years after issuance, and (c) the
payment of which is subordinate and junior in right of payment to the prior payment of the
obligations of the Borrower hereunder and under the Notes on the terms satisfactory to the Agent.



     “Trust Preferred Securities” shall mean the preferred securities issued by the Trust
Issuers (a) that are subject to mandatory redemption not earlier than the date thirty (30) years
after issuance and (b) that may not be optionally redeemed earlier than five (5) years after
issuance.



     “type” means a type of Loan, i.e. either a Eurodollar Loan, a Federal Funds Rate Loan
or a Base Rate Loan.



     1.2 Accounting. Unless otherwise specified herein, all accounting terms used herein
shall be interpreted, all determinations with respect to accounting matters hereunder shall be



 









 







made, and all financial statements and certificates and reports as to financial matters
required to be furnished to the Agent or the Banks hereunder shall be prepared in accordance with
GAAP applied on a basis consistent with the audited consolidated financial statements of the
Borrower and the Consolidated Subsidiaries referred to in Section 7.3(a) hereof (except for changes
concurred with by the Majority Banks).



SECTION 2. THE LOANS




     2.1 Revolving Credit Loans.




     (a) Each Bank severally agrees, on the terms and subject to the conditions of this
Agreement (including without limitation Section 2.1(c)), to make loans to the Borrower
during the period from and including the date hereof to and including the Revolving Credit
Commitment Termination Date in an aggregate principal amount at any one time outstanding up
to but not exceeding the amount of such Bank’s Commitment as then in effect. Subject to the
terms of this Agreement, during such period the Borrower may borrow, repay, and reborrow the
amount of the Commitments from time to time in effect by means of Base Rate Loans,
Eurodollar Loans, and Fed Funds Rate Loans and may Convert Loans of one type into Loans of
another type or Continue Eurodollar Loans; provided that no more than ten (10) Eurodollar
Loans may be outstanding from each Bank at any one time.




     (b) Revolving Credit Loans may be borrowed pursuant to Section 2.2, upon notice given
by the Borrower.




     (c) Anything in this Agreement to the contrary notwithstanding, the Banks shall have no
obligation to make any Loans if, after giving effect thereto, the Total Credits would exceed
the aggregate amount of the Commitments.



     2.2 Revolving Credit Loans Pursuant to Notice. The Borrower may, subject to the terms
and conditions of this Agreement, borrow Revolving Credit Loans by notice given by an Authorized
Officer to the Agent in accordance with Section 4.5(a). Revolving Credit Loans made pursuant to
this Section 2.2 on any day shall be in an aggregate amount not less than that specified in Section
4.4 and shall consist of Loans of the same type. Not later than 1:30 p.m. Atlanta time on the date
specified for each borrowing under this Section 2.2, each Bank shall make available the amount of
the Loan to be made by it on such date to the Agent, from such account as it shall specify, in
immediately available funds, for the account of the Borrower. The amount so received by the Agent
shall, subject to the terms and conditions of this Agreement, be made promptly available to the
Borrower by depositing the same, in immediately available funds, in an account of the Borrower
maintained at the Agent.



     2.3 Voluntary Reduction of Commitments. The Borrower shall have the right to
terminate or reduce the aggregate amount of the unused Commitments at any time or from time to
time, provided that: (i) the Borrower shall give notice of each such termination or reduction as
provided in Section 4.5 hereof; (ii) each partial reduction shall be in an aggregate amount at
least equal to $5,000,000 and in integral multiples of $5,000,000 (iii) the aggregate amount of
Commitments shall not be reduced below the Total Credits then outstanding; (iv) no such



 









 







reduction shall cause the Commitment of any Bank to be reduced below the outstanding principal
amount of Loans made by such Bank; and (v) Commitments once terminated or reduced may not be
reinstated.



     2.4 Prepayment, Conversions and Continuations. Subject to Section 5.5 hereof, the
Borrower shall have the right to prepay the principal of the Loans or to Convert Loans of one type
into Loans of another type or Continue Eurodollar Loans as such at any time, provided that: (a)
the Borrower shall give the Agent notice of each such prepayment, Conversion, or Continuation as
provided in Section 4.4 hereof; (b) prepayments shall be in a minimum principal amount of
$1,000,000 and in integral multiples of $1,000,000; and (c) Eurodollar Loans may be prepaid,
Continued, or Converted only on the last day of an Interest Period therefor.



     2.5 Interest.




     (a) The Borrower promises to pay to the Agent for the account of each Bank interest on
the unpaid principal amount of each Loan made by such Bank for the period from and including
the date of such Loan to, but excluding, the date such Loan shall be paid in full, (i) while
such Loan is a Base Rate Loan, for each day at a rate per annum equal to the sum of the Base
Rate as in effect on such day; (ii) while such Loan is a Eurodollar Loan, for each Interest
Period relating thereto, at a rate per annum equal to the sum of the LIBOR Rate for such
Loan for such Interest Period plus the Applicable Margin; and (iii) while such Loan is a Fed
Funds Rate Loan for each day, at a rate per annum equal to the sum of the Fed Funds Rate as
in effect on such day plus the Applicable Margin.




     (b) Notwithstanding the foregoing, the Borrower will pay to the Agent for the account
of the Person entitled thereto interest at the Post-Default Rate on (i) any principal of any
Loan and (ii) (to the fullest extent permitted by law) any interest or other amount payable
by the Borrower hereunder or under any Note which shall not be paid in full when due
(whether at stated maturity, by acceleration or otherwise), for each day during the period
from and including the due date thereof to but excluding the date the same is paid in full.




     (c) Accrued interest shall be payable in (i) in the case of Base Rate Loans, quarterly
in arrears on the Quarterly Dates, (ii) in the case of Fed Funds Rate Loans, monthly in
arrears on the last Business Day of the month, (iii) in the case of a Eurodollar Loan, on
the last day of each Interest Period thereof and, for each Interest Period in excess of
three months, on a date three months after the commencement of the Interest Period, and (iv)
in the case of any Loan, upon the payment or prepayment thereof or the Conversion of such
Loan to a Loan of another type (but only on the principal amount so paid, prepaid, or
Converted); provided, that interest payable at the Post-Default Rate shall be payable from
time to time on demand and interest on any Loan that is Converted into a Base Rate Loan
pursuant to Section 5.4 hereof shall be payable on the date of Conversion (but only to the
extent so Converted).




     (d) Promptly after the determination of any interest rate provided for herein or any
change therein, the Agent shall give notice thereof to the Borrower.



 









 





     2.6 Lending Offices. The Loans of each type made by each Bank shall be made and
maintained at such Bank’s Applicable Lending Office for Loans of such type.



     2.7 Several Obligations; Remedies Independent. The obligations of the Banks under
this Agreement are several and the failure of any Bank to make any Loan on the date specified
therefor shall not relieve any other Bank of its obligation to make the Loan to be made by it on
such date, but neither any Bank nor the Agent shall be responsible for the failure of any other
Bank to make any Loan. The amounts payable by the Borrower at any time hereunder and under the
Notes to the Agent and each Bank shall be a separate and independent debt, and the Agent and each
Bank shall be entitled to protect and enforce its rights arising out of this Agreement and the
Notes, and it shall not be necessary for any other Bank or the Agent to consent to, or be joined as
an additional party in, any proceedings for such purposes.



     2.8 Notes. The obligation of the Borrower to pay principal of and interest on the
Loans made by each Bank hereunder shall be evidenced by a single promissory note of the Borrower
payable to such Bank in substantially the form of Exhibit A hereto. The date, amount, and type of
each Loan made by each Bank, and the date and amount of each payment made on account of the
principal thereof, shall be recorded by such Bank on its books and, prior to any transfer of any
Note evidencing such Loan held by it, endorsed by such Bank on the schedule attached to such Note
or any continuation thereof; provided, however, that any failure to so record shall not affect the
Borrower’s obligations under this Agreement or the Notes.



     2.9 Business Day Payments. If the due date of any amount payable hereunder shall fall
on a day which shall not be a Business Day, the due date of such amount shall be postponed to the
next Business Day thereafter.



     2.10 Extension of Commitments and Replacement of Banks.




     (a) The Borrower may request an extension of the Revolving Credit Commitment
Termination Date by submitting a request for extension to the Agent and each Bank (other
than a Bank excluded from such request as provided in the last sentence of this Section
2.10(a)) (each such request being an “Extension Request”) no more than sixty (60) days prior
to the then existing Revolving Credit Commitment Termination Date. The Agent and each Bank
receiving such an Extension Request may, in accordance with such Extension Request but in
the absolute and sole discretion of the Agent and such Bank, agree to extend the Revolving
Credit Commitment Termination Date by delivering to the Borrower and the Agent an
irrevocable notice (a “Consent Notice”) to such effect, which consent shall
specifically refer to this Section 2.10 and which shall be given no later than
thirty (30) days prior to the then existing Revolving Credit Commitment Termination Date
(the period between the receipt of the Extension Notice and the 30-day deadline for response
being referred to as the “Consent Period”). The new Revolving Credit Commitment
Termination Date shall be no more than 364 days after the current Revolving Credit
Commitment Termination Date. No Extension Request shall be effective with respect to a Bank
(i) that, by a notice (a “Withdrawal Notice”) to the Borrower and the Agent during
the Consent Period, declines to consent to such extension or (ii) that has failed to respond
to the Borrower and the Agent within the Consent Period or (iii) that was excluded from the
Borrower’s Extension Request (each such Bank giving



 









 






a Withdrawal Notice or failing to respond in a timely manner or being excluded from the
Borrower’s Extension Request being called a “Withdrawing Bank”). So long as no
Default or Event of Default exists, the Borrower may elect to exclude any Bank from its
request for extension of the Revolving Credit Termination Date pursuant to this Section
2.10(a) by providing a notice to such effect to the Agent and the Banks.




     (b) The Borrower may replace any Withdrawing Bank during the 25-day period (the
“Replacement Period”) commencing at the end of the Consent Period and ending on (and
including) the date five days before the Revolving Credit Commitment Termination Date then
in effect, provided, that (i) no Default shall have occurred and be continuing, (ii) the
Bank being replaced has been paid in full of all its Loans, including principal and
interest, and other amounts due to it hereunder, (iii) the aggregate amount of the
Commitments shall remain unchanged following such replacement, (iv) any such replacement
bank assumes all the rights and obligations of a “Bank” hereunder pursuant to such accession
documentation as the Agent shall specify pursuant to Section 2.10(d), and (v) the Agent
shall have consented to such replacement bank, which consent shall not be unreasonably
withheld.




     (c) If the Agent does not timely provide a Consent Notice as to an Extension Request,
or if there is a Withdrawing Bank and the Borrower does not find a replacement bank which
satisfies all the conditions stated in Section 2.10(b) by the end of the Replacement Period,
the Revolving Credit Commitment Termination Date shall not be extended, any Withdrawing Bank
shall continue to be a Bank hereunder, and its Commitments shall expire on the Revolving
Credit Commitment Termination Date as provided herein without giving effect to any
extension. If all of the Banks and the Agent provide a Consent Notice with respect to an
Extension Request and there is no Withdrawing Bank, or if all of the Banks (other than any
Withdrawing Bank) and the Agent give a Consent Notice and each Withdrawing Bank is replaced
by a replacement bank during the Replacement Period and all the conditions stated in
Section 2.10(b) shall be satisfied with respect to such replacement bank, then the
Revolving Credit Commitment Termination Date shall be extended in accordance with the
relevant Extension Request, the Commitments shall be extended accordingly, and any
Withdrawing Bank shall be discharged from its Commitment and any other obligation as a Bank
which arises after the date which would have been the Revolving Credit Commitment
Termination Date but for such extension.




     (d) Any replacement bank may become a “Bank” under this Agreement by executing and
delivering to the Borrower and the Agent an accession agreement in form and substance
satisfactory to the Agent and the Borrower and such related documentation as shall be
satisfactory in form and substance to the Borrower and the Agent, pursuant to which such
bank shall assume the rights, privileges, duties, and obligations of a “Bank” hereunder.
Upon the effectiveness of any such accession agreement and related documentation, the
acceding bank shall become a “Bank” for all purposes of this Agreement having the
Commitments specified in such accession agreement.




     (e) The Agent shall promptly provide a copy of each accession agreement to each of the
Banks.



 









 






     (f) If any Loans shall be outstanding at the time an accession agreement becomes
effective, the Borrower shall repay such portion of such Loans and borrow an equal principal
amount of new Loans from the Bank which has acceded so that after giving effect to such
prepayment and borrowing the Loans are held pro rata among the Banks in accordance with the
Commitments. The Banks shall make disbursements among themselves to give effect to such
prepayment and borrowing pursuant to instructions from the Agent. The Borrower shall pay
accrued interest to the date of prepayment on any Loans so prepaid, together with any
amounts payable as a result of such prepayment pursuant to Section 5.5, such
prepayments being due on the date of such prepayments. Any Eurodollar Loans made by such
acceding Bank shall be (if not made on the first day of the relevant Interest Period(s) for
Eurodollar Loans hereunder) at such rate(s) per annum as shall be set forth in the accession
agreement.



     2.11 Repayment. All principal amounts on the Loans shall be payable on the Revolving
Credit Commitment Termination Date, of, if sooner, as provided in Section 9.2.



SECTION 3. THE FEES




     3.1 Facility Fee. The Borrower shall pay to the Agent for the account of each Bank a
facility fee on the amount of such Bank’s Commitment, for the period from and including the date of
this Agreement to, but not including the earlier of the date such Commitment is terminated or the
Revolving Credit Commitment Termination Date, at the rate per annum of 0.25%. The accrued facility
fee in respect of the Commitments shall be payable in arrears on each Quarterly Date and on the
earlier of the date the Commitments are terminated or the Revolving Credit Commitment Termination
Date.



     3.2 Agency Fee. The Borrower shall pay to the Agent for the account of the Agent such
agency fee as shall be agreed between the Agent and the Borrower.



SECTION 4. THE PAYMENTS; PRO RATA TREATMENT; COMPUTATIONS; ETC.




     4.1 Payments.




     (a) Except to the extent otherwise provided herein, all payments and prepayments of
principal, interest, fees, and other amounts to be made by the Borrower under this Agreement
and the Notes shall be made in Dollars, in immediately available funds, without deduction,
set-off, or counterclaim, to the Agent at such account as it may specify, not later than
12:00 p.m. Atlanta time on the date on which such payment shall become due (each such
payment made after such time to be deemed to have been made on the next succeeding Business
Day).




     (b) Each payment received by the Agent under this Agreement or any Note for the account
of a Bank shall be paid promptly to such Bank, in immediately available funds, for the
account of such Bank’s Applicable Lending Office for the Loan in respect of which such
payment is made.



     4.2 Pro Rata Treatment. Except to the extent otherwise provided herein: (a) the
borrowing from the Banks of Loans under Section 2.2 hereof shall be made from the Banks, and



 









 







the payment of the facility fee under Section 3 hereof shall be made for the account of the
Banks, and each reduction of the Commitments pursuant to Section 2.3 hereof shall be applied to the
Commitments of the Banks, pro rata according to the amounts of their respective Percentages; (b)
the making, Conversion, and Continuation of Loans of a particular type (other than Conversions
provided for by Section 5.4 hereof) shall be pro rata among the Banks according to the amounts of
their respective Percentages; (c) each payment or prepayment of principal by the Borrower shall be
made for the account of the Banks pro rata in accordance with the respective unpaid principal
amounts of the Loans held by the Banks; and (d) each payment of interest on Loans by the Borrower
shall be made for the account of the Banks pro rata in accordance with the amounts of interest due
and payable to the respective Banks.



     4.3 Computations. Interest and fees shall be computed on the basis of a year of 360
days and actual days elapsed (including the first day but excluding the last day) occurring in the
period for which payable.



     4.4 Minimum Amounts. Except for Conversions or prepayments made pursuant to
Section 5.4 hereof, each borrowing pursuant to Section 2.2, Conversion, and
prepayment of principal of Loans shall be in the case of Fed Funds Loans or Base Rate Loans in an
amount at least equal to $1,000,000 and in integral multiples of $100,000, and in the case of
Eurodollar Loans, in an amount at least equal to $5,000,000 and in integral multiples of $1,000,000
(prepayments or Conversions of or into Loans of different types or, in the case of Eurodollar
Loans, having different Interest Periods at the same time hereunder to be deemed separate
Conversions and prepayments for purposes of the foregoing, one for each type or Interest Period).
Anything in this Agreement to the contrary notwithstanding, the aggregate principal amount of
Eurodollar Loans having the same Interest Period shall be at least equal to $5,000,000 and if any
Eurodollar Loans would otherwise be in a lesser principal amount for any period, such Loans shall
be Base Rate Loans during such period.



     4.5 Certain Notices.




     (a) Notices by the Borrower to the Agent of voluntary reductions of the Commitments,
borrowings, Conversions, Continuation and prepayments of Loans, of type of Loans, and of the
duration of Interest Periods shall be irrevocable and shall be effective only if received by
the Agent not later than 11:00 a.m. Atlanta time on the number of Business Days prior to the
date of the relevant reduction, borrowing, Conversion, Continuation or prepayment or the
first day of such Interest Period specified below:



	 	 	 
	 	 	Business
	Notice	 	Days Prior
	Reduction of Commitments

	 	five
	 
	 	 
	Borrowing or prepayment of, or
Conversions into, Base Rate Loans
or Fed Funds Rate Loans

	 	one






 









 






	 	 	 
	 	 	Business
	Notice	 	Days Prior
	Borrowing or prepayment of, Conversions
into, Continuations as, or duration of
Interest Period for, Eurodollar Loans

	 	three







     (b) Each notice of reduction of the Commitments shall specify the amount of such
reduction. Each notice of borrowing, Conversion, Continuation, or prepayment shall specify
the Loans to be borrowed, Converted, Continued, or prepaid and the amount (subject to
Section 4.4 hereof) and type of the Loans to be borrowed, Converted, Continued, or
prepaid and the date of Conversion, Continuation, or prepayment (which shall be a Business
Day). Each such notice of the duration of an Interest Period shall specify the Loans to
which such Interest Period is to relate. The Agent shall promptly notify the Banks of the
contents of each such notice.




     (c) In the event that the Borrower fails to select the type of Loan or the duration of
any Interest Period for any Eurodollar Loan within the time period and otherwise as provided
in this Section 4.5, such Loan (if outstanding as a Eurodollar Loan) will be
automatically Converted into a Base Rate Loan on the last day of the then current Interest
Period for such Loan or will be made as a Base Rate Loan; provided, that the Borrower shall
continue to have the right to Convert any such Loan on the terms and conditions of this
Agreement.



     4.6 Non-Receipt of Funds by the Agent. Unless the Agent shall have been notified by a
Bank or the Borrower (the “Payor”) prior to the date on which the Payor is scheduled to
make a payment to the Agent (a “Required Payment”), which notice shall be effective upon
receipt, that the Payor does not intend to make the Required Payment to the Agent, the Agent may
assume that the Required Payment has been made and may in reliance upon such assumption (but shall
not be required to) make the amount thereof available to the intended recipient(s) on such date
and, if the Payor has not in fact made the Required Payment to the Agent, the recipient(s) of such
payment shall, on demand, repay to the Agent the amount so made available together with interest
thereon in respect of each day during the period commencing on the date such amount was so made
available by the Agent until the date the Agent recovers such amount at a rate per annum equal to
(if the recipient is the Borrower) the Base Rate for such day, and (if the recipient is a Bank) the
Fed Funds Rate for such day as determined by the Agent; and if such recipient(s) shall fail
promptly to make such payment, the Agent shall be entitled to recover such amount, on demand, from
the Payor, together with interest as aforesaid at the Base Rate (if the Payor is the Borrower) or
the Fed Funds Rate (if the Payor is a Bank).



     4.7 Sharing of Payments. If any Bank shall obtain payment in any manner whatsoever of
any principal of or interest on any Loan or any other amount due hereunder or under the Notes and,
as a result of such payment, such Bank shall have received a greater percentage of the principal or
interest or such other amount then due hereunder or under the Notes by the Borrower to such Bank
than the percentage received by any other Banks, it shall promptly purchase from such other Banks
participations in the Loans made by such other Banks in such amounts and make such other
adjustments from time to time as shall be equitable to the end that all the Banks shall share the
benefit of such excess payment pro rata in accordance with the unpaid principal and/or interest on
the Loans held by each of the Banks. To such end all the



 









 







Banks shall make appropriate adjustments among themselves (by the resale of participations
sold or otherwise) if such payment is rescinded or must otherwise be restored.



SECTION 5. YIELD, CAPITAL MAINTENANCE AND TAX PROVISIONS




     5.1 Additional Costs.




     (a) The Borrower shall pay directly to each Bank from time to time on demand such
amounts as such Bank may determine to be necessary to compensate it for any costs which such
Bank determines are attributable to its making or maintaining of any Eurodollar Loans or Fed
Funds Rate Loans or its obligation to make any Eurodollar Loans or Fed Funds Rate Loans
hereunder, or any reduction in any amount received or receivable by such Bank hereunder in
respect of any Eurodollar Loans or Fed Funds Rate Loans or such obligation (such increases
in costs and reductions in amounts received or receivable being herein called
“Additional Costs”), resulting from any Regulatory Change which:




     (i) changes the basis of taxation of any amounts payable to such Bank under
this Agreement or its Note (other than taxes on the overall net income of such Bank
or its Applicable Lending Office imposed by the United States of America or by the
jurisdiction in which such Bank has its principal office or such Applicable Lending
Office);




     (ii) imposes, modifies, or deems applicable any reserve, special deposit, or
similar requirements relating to any extensions of credit or other assets of, or any
deposits with or other liabilities of, such Bank or the Commitment of such Bank in
respect of Eurodollar Loans or Fed Funds Rate Loans; or




     (iii) imposes any other condition affecting this Agreement or its Note (or any
of such extensions of credit or liabilities) or Commitment in respect of Eurodollar
Loans or Fed Funds Rate Loans.




     (b) Without limiting the effect of the foregoing provisions of this Section 5.1
(but without duplication), the Borrower shall pay directly to each Bank from time to time on
demand such amounts as such Bank may determine to be necessary to compensate such Bank or
any Person controlling such Bank for any increased costs which it determines are
attributable to the maintenance by such Bank or such Person (or any Applicable Lending
Office) of capital in respect of such Bank’s Commitment or Loans as a result of any
Regulatory Change, such compensation to include, without limitation, an amount equal to any
reduction of the rate of return on assets or equity of such Bank or such Person (or any
Applicable Lending Office) to a level below that which such Bank or such Person (or any
Applicable Lending Office), taking into account their policies concerning capital adequacy,
could have achieved but for such Regulatory Change.




     (c) Each Bank will notify the Borrower of any event occurring after the date of this
Agreement that will entitle such Bank to compensation under paragraph (a) or
(b) of this Section 5.1 as promptly as practicable. Together with the
delivery of such notice, the relevant Bank will furnish to the Borrower a certificate
setting forth the basis and



 









 






amount of each request by such Bank for compensation under paragraph (a) or
(b) of this Section 5.1. Determinations and allocations by any Bank for
purposes of this Section 5.1 of the effect of any Regulatory Change, law,
regulation, or request of any central bank or other monetary authority and computations of
amounts payable set forth in the certificate referred to in the preceding sentence shall be
made in good faith and shall be conclusive and binding on the Borrower in the absence of
manifest error.



     5.2 Limitation on Types of Loans. Anything herein to the contrary notwithstanding,
if, on or prior to the determination of any LIBOR Base Rate for any Interest Period for any
Eurodollar Loans or determination of the Fed Funds Rate for any Fed Funds Rate Loans:




     (a) the Agent determines (which determination shall be conclusive) that quotations of
interest rates for the relevant deposits referred to in the definition of “LIBOR Base Rate”
or “Fed Funds Rate,” as the case may be, are not being provided in the relevant amounts or
for the relevant maturities for purposes of determining the LIBOR Base Rate for such
Interest Period or the Fed Funds Rate for such day, as the case may be, as provided herein;
or




     (b) any Bank determines (which determination shall be conclusive) and notifies the
Agent that the relevant rates of interest referred to in the definition of (i) ”LIBOR Base
Rate” for such Interest Period are not likely to adequately cover the cost to such Bank of
making or maintaining its Eurodollar Loan for such Interest Period or (ii) “Fed Funds Rate”
are not likely to adequately cover the cost of such Bank of making or maintaining its Fed
Funds Rate Loans; then with respect to Loans of the affected type, the Agent shall give the
Borrower and each Bank prompt notice thereof, and so long as such condition remains in
effect, the affected Banks shall be under no obligation to make or Continue Loans of the
affected type and the Borrower shall either prepay (on the last day of the current Interest
Period for any outstanding Eurodollar Loans) each affected Bank’s Loans of the affected type
or Convert (on the last day of the current Interest Period for any outstanding Eurodollar
Loans) such Loans to a type which are not so affected in accordance with Section 2.4
hereof.



     5.3 Illegality. Notwithstanding any other provision of this Agreement, in the event
that because of any Regulatory Change it becomes unlawful for any Bank or its Applicable Lending
Office to honor its obligation to make or maintain Eurodollar Loans or Fed Funds Rate Loans, then
such Bank shall promptly notify the Borrower thereof (with a copy to the Agent) and such Bank’s
obligation to make or Continue, or to Convert Loans into, the affected type of Loans or to make or
Convert the affected type of Loans shall be suspended until such time as such Bank may again make
and maintain the affected type of Loans (in which case the provisions of Section 5.4 hereof
shall be applicable).



     5.4 Treatment of Affected Loans.




     (a) If the obligation of any Bank to make or Continue, or to Convert Loans into,
Eurodollar Loans or Fed Funds Rate Loans is suspended pursuant to Section 5.2 or
5.3 hereof (such Loans being called “Affected Loans” in this Section 5.4),
such Bank’s Affected Loans shall be automatically Converted into Base Rate Loans on the last
day(s)



 









 






of the then current Interest Period(s) unless sooner required under the Regulatory
Change referred to in Section 5.3 and, unless and until such Bank gives notice as
provided below that the circumstances specified in Section 5.2 or 5.3 hereof
which gave rise to such Conversion no longer exist:




     (i) to the extent that such Bank’s Affected Loans have been so Converted, all
payments and prepayments of principal which would otherwise be applied to such
Bank’s Affected Loans shall be applied instead to its Base Rate Loans; and




     (ii) all Loans which would otherwise be made or Continued by such Bank as
Affected Loans shall be made or Continued instead as Base Rate Loans and all Loans
of such Bank which would otherwise be Converted into Affected Loans shall remain as
Base Rate Loans.




     (b) If such Bank gives notice to the Borrower (with a copy to the Agent) that
circumstances specified in Section 5.2 or 5.3 hereof which gave rise to the
Conversion of such Bank’s Affected Loans pursuant to this Section 5.4 no longer
exist (which such Bank agrees to do promptly upon such circumstances ceasing to exist) at a
time when Affected Loans are outstanding, such Bank’s Base Rate Loans shall be automatically
Converted, on the first day(s) of the next succeeding Interest Period(s) for such
outstanding Affected Loans to the extent necessary so that, after giving effect thereto, all
Affected Loans are held pro rata (as to principal amounts, types and Interest Periods) in
accordance with the Commitments.



     5.5 Compensation.




     (a) The Borrower shall pay to the Agent for the account of each Bank, upon the demand
of such Bank through the Agent, such amount or amounts as shall be sufficient (in the
reasonable opinion of such Bank) to compensate it for any loss, cost or expense which such
Bank determines are attributable to (i) any payment, prepayment or Conversion of a
Eurodollar Loan made by such Bank for any reason (including, without limitation, the
acceleration of the Loans pursuant to Section 9 hereof) on a date other than the
last day of an Interest Period for such Loan; or (ii) any failure by the Borrower for any
reason (including, without limitation, the failure of any of the conditions precedent
specified in Section 6 hereof to be satisfied) to borrow a Eurodollar Loan from such
Bank on the date of the making of such Loan specified as provided in this Agreement.




     (b) Without limiting the effect of Section 5.5(a), such compensation shall
include an amount equal to the excess, if any, of (i) the amount of interest which otherwise
would have accrued on the principal amount so paid, prepaid or Converted or not borrowed for
the period from the date of such payment, prepayment, Conversion or failure to borrow to the
last day of the then current Interest Period for such Loan (or, in the case of a failure to
borrow, the Interest Period for such Loan which would have commenced on the date specified
for such borrowing) at the applicable rate of interest for such Loan over (ii) the interest
component of the amount such Bank would have bid in the London interbank market for Dollar
deposits of leading banks in amounts comparable



 









 






to such principal amount and with maturities comparable to such period (as reasonably
determined by such Bank).




     (c) Any Bank requesting compensation pursuant to this Section 5.5 shall provide
to the Borrower a certificate showing its computation of the amount requested, which shall
be conclusive and binding on the Borrower in the absence of manifest error.



     5.6 Taxes. The Borrower covenants and agrees that:




     (a) All payments on account of the principal of and interest on the Loans and all other
amounts payable by the Borrower under or in respect of this Agreement or the Notes or the
letter agreement referred to in Section 3.2 hereof, including amounts payable under
paragraph (c) of this Section 5.6, shall be made free and clear of and
without reduction by reason of any present or future income, stamp and other taxes, levies,
deductions, charges and withholdings whatsoever imposed, assessed, levied or collected by
any state, nation or other governmental authority (other than taxes on the overall net
income of such Bank or its Applicable Lending Office imposed by the United States of America
or the jurisdiction in which such Bank has its principal office or such Applicable Lending
Office, such excluded taxes being called “Excluded Taxes”), or any political
subdivision or taxing authority thereof or therein (each, a “Taxing Authority”), and
interest thereon and penalties with respect thereto, if any, on or in respect of (i) this
Agreement, the Notes, the Commitments, the Loans or the letter agreement referred to in
Section 3.2 hereof, (ii) the registration, notarization or other formalization of
any thereof, (iii) any payments of principal, interest, charges, fees or other amounts made
on, under or in respect thereof, or (iv) any of the income, profits or revenues of the
Agent, any Bank or any Applicable Lending Office as a result of the transactions
contemplated hereby other than Excluded Taxes (collectively, “Taxes”), all of which
will be paid by the Borrower, for its own account, prior to the date on which penalties
attach thereto.




     (b) The Borrower will indemnify the Agent and each Bank against, and reimburse the
Agent and each Bank on demand for, any Taxes and any loss, liability, claim or expense,
including interest, penalties and legal fees, which the Agent or any Bank may incur at any
time arising out of or in connection with any failure of the Borrower to make any payment of
Taxes when due.




     (c) In the event that the Borrower is required by applicable law, decree or regulation
to deduct or withhold any Taxes from any amount payable on, under or in respect of this
Agreement or the Notes or the letter agreement referred to in Section 3.2 hereof,
the Borrower shall withhold such amount and pay it to the relevant Taxing Authority and
shall pay to the Agent or the Banks such additional amount as may be required, after such
deduction or withholding, to enable the Agent or the Banks to receive from the Borrower an
amount equal to the full amount stated to be payable under this Agreement or the Notes or
the letter agreement referred to in Section 3.2 hereof.




     (d) The Borrower shall furnish to the Agent original or certified copies of tax
receipts in respect of any withholding of Taxes required under this Section 5.6
within thirty (30) days after the date of the payment of interest or other amount in respect
of



 









 






which any withholding was required to be made, and the Borrower shall promptly furnish
to the Agent any other information, documents and receipts that the Agent may require, in
its sole discretion from time to time, to establish to its satisfaction that full and timely
payment has been made of all Taxes required to be paid hereunder.




     (e) The covenants and agreements of the Borrower under this Section 5.6 shall
survive the repayment of the Loans and payment of other amounts payable under this
Agreement, the Notes and the letter agreement referred to in Section 3.2 hereof.




     (f) Any Foreign Bank that is entitled to an exemption from or reduction of withholding
tax under the Code or any treaty to which the United States is a party, with respect to
payments under this Agreement shall deliver to the Borrower (with a copy to the Agent), at
the time or times prescribed by applicable law, such properly completed and executed
documentation prescribed by applicable law or reasonably requested by the Borrower as will
permit such payments to be made without withholding or at a reduced rate. Without limiting
the generality of the foregoing, each Foreign Bank agrees that it will deliver to the Agent
and the Borrower (or in the case of a Participant, to the Lender from which the related
participation shall have been purchased), as appropriate, two (2) duly completed copies of
(i) Internal Revenue Service Form W-8 ECI, or any successor form thereto, certifying that
the payments received from the Borrower hereunder are effectively connected with such
Foreign Bank’s conduct of a trade or business in the United States; or (ii) Internal Revenue
Service Form W-8 BEN, or any successor form thereto, certifying that such Foreign Bank is
entitled to benefits under an income tax treaty to which the United States is a party which
reduces the rate of withholding tax on payments of interest; or (iii) Internal Revenue
Service Form W-8 BEN, or any successor form prescribed by the Internal Revenue Service,
together with a certificate (A) establishing that the payment to the Foreign Bank qualifies
as “portfolio interest” exempt from U.S. withholding tax under Code section 871(h) or
881(c), and (B) stating that (1) the Foreign Bank is not a bank for purposes of Code section
881(c)(3)(A), or the obligation of the Borrower hereunder is not, with respect to such
Foreign Bank, a loan agreement entered into in the ordinary course of its trade or business,
within the meaning of that section; (2) the Foreign Bank is not a 10% shareholder of the
Borrower within the meaning of Code section 871(h)(3) or 881(c)(3)(B); and (3) the Foreign
Bank is not a controlled foreign corporation that is related to the Borrower within the
meaning of Code section 881(c)(3)(C); or (iv) such other Internal Revenue Service forms as
may be applicable to the Foreign Bank, including Forms W-8 IMY or W-8 EXP. Each such
Foreign Bank shall deliver to the Borrower and the Agent such forms on or before the date
that it becomes a party to this Agreement (or in the case of a Participant, on or before the
date such Participant purchases the related participation). In addition, each such Foreign
Bank shall deliver such forms promptly upon the obsolescence or invalidity of any form
previously delivered by such Foreign Bank. Each such Foreign Bank shall promptly notify the
Borrower and the Agent at any time that it determines that it is no longer in a position to
provide any previously delivered certificate to the Borrower (or any other form of
certification adopted by the Internal Revenue Service for such purpose).



SECTION 6. CONDITIONS PRECEDENT




 









 








     6.1 Initial Credit Extension. The obligation of each Bank to make its initial Loan
hereunder is subject to the receipt by the Agent of the following documents and payments, each of
which documents shall be satisfactory to the Agent in form and substance:




     (a) Corporate Action. Certified copies of the articles of incorporation and
by-laws of the Borrower and all corporate action taken by the Borrower authorizing this
Agreement and the Notes and the borrowing by the Borrower hereunder (including a certificate
setting forth the resolutions of the Board of Directors of the Borrower authorizing the
transactions contemplated hereby of the secretary or assistant secretary of the Borrower).




     (b) Incumbency. A certificate secretary or assistant secretary of the Borrower
naming and setting forth the specimen signature of each of the officers of the Borrower (i)
who is authorized to sign on its behalf this Agreement or the Notes and (ii) who is (A) an
Authorized Officer or (B) who will, until replaced by another officer or officers duly
authorized for that purpose, act as its representative for the purposes of signing documents
and giving notices and other communications (other than notices required to be given by an
Authorized Officer) in connection with this Agreement and the transactions contemplated
hereby.




     (c) Officer’s Certificate. A certificate of a senior officer of the Borrower
dated the date of the initial Credit Extension to the effect that on and as of such date:
(i) no Default shall have occurred and be continuing; and (ii) the representations and
warranties made by the Borrower in Section 7 hereof are true and correct with the
same force and effect as if made on and as of such date.




     (d) Opinion of Counsel of Borrower. An opinion of counsel of the Borrower,
substantially in the form of Exhibit B hereto.




     (e) Notes. The Notes, duly completed and executed.




     (f) Approvals. Certified copies of any filings, authorizations, approvals,
licenses, consents or registrations necessary in order for the Borrower to execute, deliver
and perform this Agreement or the Notes.




     (g) Fee Letter and Payments. An executed copy of the letter agreement referred
to in Section 3.2, payment of any agency fee then due under that letter agreement,
and payment of any other fee which is then due and payable pursuant to this Agreement.




     (h) Other Documents. Such other documents as the Agent or any Bank may
reasonably request.



     6.2 Initial and Subsequent Credit Extensions. The obligation of each Bank to make any
Loan (including its initial Loan) and agree to any Continuation of Eurodollar Loans is subject to
the further conditions precedent that, both immediately prior to such Credit Extension or
Continuation and also after giving effect thereto: (a) no Default shall have occurred and be
continuing; and (b) the representations and warranties made by the Borrower in Section 7
hereof



 









 







shall be true and correct on and as of the date of such Credit Extension or Continuation with
the same force and effect as if made on and as of such date. Each notice of borrowing or
Continuation notice given by the Borrower hereunder shall constitute a certification by the
Borrower to the effect set forth in clauses (a) and (b) in the preceding sentence.



SECTION 7. REPRESENTATIONS AND WARRANTIES




     To induce the Agent and the Banks to enter into this Agreement and make Credit Extensions, the
Borrower represents and warrants to the Agent and the Banks that:



     7.1 Organization. The Borrower is a corporation duly existing under the laws of the
State of Indiana; each Subsidiary (including without limitation, each Subsidiary Bank) is a
corporation duly existing under the laws of the jurisdiction of its incorporation; the Borrower and
each Subsidiary are duly qualified, in good standing and authorized to do business in each
jurisdiction where the failure to so qualify would have a material adverse effect on the Borrower
or such Subsidiary; and the Borrower and each Subsidiary have all necessary power and authority to
own their properties and to carry on their businesses as now being conducted.



     7.2 Authorization; No Conflict; Binding Effect. The borrowing of Loans, the execution
and delivery of the Notes, and the performance by the Borrower of its obligations under this
Agreement and the Notes are within the Borrower’s corporate powers, have been authorized by all
necessary corporate action, have received all necessary governmental approvals (if any shall be
required), and do not and will not contravene or conflict with any provision of law or of the
charter or by-laws of the Borrower or any Subsidiary or of any agreement binding upon the Borrower
or any Subsidiary. This Agreement is, and each Note upon its execution and delivery will be,
legal, valid and binding obligations of the Borrower that are enforceable in accordance with their
respective terms.



     7.3 Financial Statements. The Borrower has supplied copies of the following financial
or other statements to each of the Banks:




     (a) The Borrower’s audited consolidated financial statements as at December 31, 2004.




     (b) The Borrower’s unaudited consolidated financial statements for the six-month period
ended June 30, 2005.




     (c) copy of the Borrower’s Quarterly Report or Form 10-Q as filed with the Securities
and Exchange Commission for its fiscal quarter ended March 31, 2005.


Such statements have been prepared in conformity with GAAP applied on a basis consistent with that
of the preceding fiscal year or three-month period, as the case may be, and accurately present the
financial condition of the Borrower and its Consolidated Subsidiaries as at such dates and the
results of their operations for the respective periods then ended subject, in the case of such
interim statements, to normal year-end adjustments and the provision of footnotes. Since December
31, 2004, no material, adverse change in the business, properties, assets, operations, conditions,
or prospects of the Borrower or any Subsidiary has occurred. There are no known contingent
liabilities of the Borrower or any Subsidiary which are known to be in an aggregate


 









 






amount in excess of $1,000,000 (excluding loan commitments, letters of credit, and other contingent
liabilities incurred in the ordinary course of the banking business) that are not disclosed or
reflected in such financial statements or on Schedule 2.




     7.4 Taxes. The Borrower and each Subsidiary have filed or caused to be filed all
federal, state, and local tax returns, if any, which are required to be filed, and have paid or
have caused to be paid all taxes, including those shown on such returns or on any assessment
received by them, to the extent that such taxes have become due (except for current taxes not
delinquent and taxes being contested in good faith and by appropriate proceedings and as to which
no foreclosure, distraint, sale, or similar proceedings have been commenced). The Borrower and
each Subsidiary have set up reserves in accordance with GAAP which are adequate for the payment of
additional taxes for years which have not been audited by the respective tax authorities.



     7.5 Liens. None of the assets owned, leased or otherwise held by the Borrower or any
Subsidiary is subject to any Lien, except for Liens permitted by Section 8.6.



     7.6 Adverse Contracts. Neither the Borrower nor any Subsidiary is a party to any
agreement or instrument or subject to any charter or other corporate restriction, nor is it subject
to any judgment, decree or order of any court or governmental body, that may have a material and
adverse effect on the business, assets, liabilities, financial condition, operations, or business
prospects of the Borrower and its Subsidiaries taken as a whole or on the ability of the Borrower
to perform its obligations under this Agreement or any Note. Neither the Borrower nor any
Subsidiary has, nor with reasonable diligence should have had, knowledge of or notice that it is in
default in the performance, observance or fulfillment of any of the obligations, covenants, or
conditions contained in any such agreement, instrument, restriction, judgment, decree, or order.



     7.7 Regulation U. The Borrower is not engaged principally in, nor is one of the
Borrower’s important activities, the business of extending credit for the purpose of purchasing or
carrying “margin stock” within the meaning of Regulation U of the Board of Governors of the Federal
Reserve System as now and from time to time hereinafter in effect.



     7.8 Litigation and Contingent Liabilities. No litigation (including derivative
actions), arbitration proceedings, or governmental proceedings are pending or threatened against
the Borrower or any Subsidiary that would (singly or in the aggregate), if adversely determined,
have a material and adverse effect on the business, assets, liabilities, financial condition,
continued operations, or business prospects of the Borrower or any Subsidiary, except as set forth
in Schedule 2.



     7.9 Subsidiaries. The Borrower’s only Subsidiary Bank and all other Subsidiaries as
of the date of this Agreement are listed in Schedule 3 to this Agreement. Except as set
forth on Schedule 3, all of the Subsidiaries are Consolidated Subsidiaries. The additional
descriptive information set forth on Schedule 3 is true and correct.



     7.10 Bank Holding Company. The Borrower has complied in all respects with all
federal, state and local laws pertaining to bank holding companies, including without limitation



 









 







the Bank Holding Company Act of 1956, as amended, and there are no conditions precedent or
subsequent to its engaging in the business of being a registered bank holding company.



     7.11 ERISA.




     (a) The Borrower and the ERISA Affiliates and the plan administrator of each Plan
covering any employees of the Borrower or any Subsidiary have fulfilled in all material
respects their respective obligations under ERISA and the Code with respect to such Plan and
such Plan is currently in compliance with the applicable provisions of ERISA and the Code
except, in each case, for such matters which in the aggregate do not have a material adverse
effect on the Borrower’s financial condition.




     (b) With respect to each Plan covering any employees of the Borrower or any Subsidiary,
there has been no (i) “reportable event” within the meaning of Section 4043 of ERISA and the
regulations thereunder which is not subject to the provision for waiver of the 30-day notice
requirement to the PBGC; (ii) failure to make or properly accrue any contribution which is
due to any Plan; (iii) action under Section 4041 of ERISA to terminate any Plan; (iv)
withdrawal from any Plan with two or more contributing sponsors or the termination of any
such Plan resulting in liability pursuant to Section 4063 or 4064 of ERISA; (v) institution
by PBGC of proceedings to terminate any Plan, or the occurrence of any event or condition
which might constitute grounds under ERISA for the termination of, or the appointment of a
trustee to administer, any Plan; (vi) the imposition of liability pursuant to Sections
4062(e), 4069 or 4212(c) of ERISA; (vii) complete or partial withdrawal (within the meaning
of Sections 4003 and 4205 of ERISA) from any Plan which is a Multiemployer Plan that is in
reorganization or insolvency pursuant to Sections 4241 or 4245 of ERISA, or that it intends
to terminate or has terminated under Sections 4041A or 4042 of ERISA; (viii) prohibited
transaction described in Section 406 of ERISA or 4975 of the Code which could give rise to
the imposition of any material fines, penalties, taxes or related charges which in the
aggregate have a material adverse effect on the Borrower’s financial condition; (ix)
assertion of a claim (other than routine claims for benefits) against any Plan (other than a
Multiemployer Plan) which could reasonably be expected to be successful; (x) receipt from
the Internal Revenue Service of notice of the failure of any Plan to qualify under Section
401(a) of the Code, or the failure of any trust forming part of any Plan to fail to qualify
for exemption from taxation under Section 501(a) of the Code, if applicable; or (xi)
imposition of a Lien pursuant to Section 401(a)(29) or 412(n) of the Code or Section 302(f)
of ERISA.



     7.12 Environmental Laws.




     (a) The Borrower and each of its Subsidiaries have obtained all permits, licenses and
other authorizations which are required under all Environmental Laws and are in compliance
in all respects with all applicable Environmental Laws, except where failure to comply could
not have a material adverse effect on the ability of the Borrower to perform its obligations
hereunder and under the Notes.



 









 






     (b) On or prior to the date hereof, no notice, demand, request for information,
citation, summons or order has been issued, no complaint has been filed, no penalty has been
assessed and no investigation or review is pending or threatened by any governmental or
other Person with respect to any alleged or suspected failure by the Borrower or any of its
Subsidiaries to comply in any material respect with any Environmental Laws or any liability
thereunder, which complaint, investigation or review if adversely determined to the Borrower
could not have a material adverse effect on the ability of the Borrower to perform its
obligations hereunder and under the Notes.




     (c) There are no Liens arising under or pursuant to any Environmental Laws on any of
the property owned or leased by the Borrower or any of its Subsidiaries.




     (d) There are no conditions existing currently or anticipated to exist during the term
of this Agreement which would subject the Borrower or any of its Subsidiaries or any of
their property to any Lien, damages, penalties, injunctive relief, or cleanup costs under
any Environmental Laws or which require or are likely to require cleanup, removal, remedial
action, or other responses by the Borrower and its Subsidiaries pursuant to Environmental
Laws.



     7.13 FDIC Insurance. The deposits of each Subsidiary Bank of the Borrower are insured
by the FDIC and no act has occurred which would adversely affect the status of such Subsidiary Bank
as an FDIC insured bank.



     7.14 Investigations. Neither the Borrower nor any Subsidiary is under investigation
by, or is operating under any restrictions imposed by or agreed to with, any regulatory authority
other than routine examination (s) by regulatory authorities having jurisdiction over Borrower or
such Subsidiary or except as described in writing to the Agent prior to the date of this Agreement.



SECTION 8. COVENANTS




     The Borrower agrees that, so long as the Commitments are in effect and until payment in full
of the Loans and all other amounts payable by the Borrower hereunder and under the Notes the
Borrower will, and will cause each Subsidiary to:



     8.1 Existence, Mergers, Etc. Preserve and maintain its corporate, partnership or
joint venture (as applicable) existence; take all steps to become and remain duly qualified,
validly existing in good standing and authorized to do business in each jurisdiction where failure
to do so might have a material adverse effect on the consolidated condition or prospects of the
Borrower and its Consolidated Subsidiaries; and not liquidate, dissolve, or merge or consolidate
with or into any other Person, or sell, lease, transfer or otherwise dispose of all or a
substantial part of its assets other than in the ordinary course of business, except that:




     (a) Any Subsidiary may merge or consolidate with or into Borrower or any one or more
wholly-owned Subsidiaries of Borrower if the Borrower or such wholly-owned Subsidiary is the
survivor of such transaction;



 









 






     (b) Any Subsidiary may sell, lease, transfer or otherwise dispose of any of its assets
to Borrower or one or more wholly-owned Subsidiaries;




     (c) Subject to Section 8.8(c), any Subsidiary may merge or consolidate with any
other Person if (i) immediately prior and subsequent thereto, no Default shall have occurred
and be continuing, (ii) such Subsidiary shall be the surviving Person and (iii) following
such merger or consolidation, the Borrower shall continue to own the same or a greater
percentage of the stock or other ownership interests of such Subsidiary as it owned
immediately prior to such merger; and




     (d) Any Subsidiaries or the assets of any Subsidiaries may be sold, so long as the
aggregate value of said assets and such Subsidiaries sold in any fiscal year shall not
exceed $10,000,000 provided, however that the Subsidiary Bank may sell or otherwise dispose
of (i) any loans, investments, servicing rights or other assets in the ordinary course of
its business and (ii) up to $25,000,000 in loans previously identified as held for sale.



     8.2 Reports, Certificates and Other Information. Furnish (or cause to be furnished)
to each Bank:




     (a) Interim Reports. Within forty-five (45) days after the end of each quarter
of each fiscal year of the Borrower, a copy of an unaudited consolidated financial
statements of the Borrower and its Consolidated Subsidiaries prepared on a consolidated
basis consistent with the consolidated financial statements of the Borrower and its
Consolidated Subsidiaries referred to in Section 7.3(b), signed by the President,
the Chief Financial Officer, the Treasurer or the Controller of the Borrower and consisting
of at least: (i) a consolidated balance sheet as at the close of such quarter; and (ii)
consolidated statements of earnings and cash flows for such quarter and for the period from
the beginning of such fiscal year to the close of such quarter (provided that so long as the
common stock of the Borrower is listed for trading on NASDAQ, the foregoing requirement as
to the Borrower’s consolidated financial statements may be satisfied by delivery of the
Borrower’s Quarterly Report on Form 10-Q as filed with the Securities and Exchange
Commission.




     (b) Audit Report. Within ninety (90) days after the end of each fiscal year of
the Borrower, a copy of an annual report of the Borrower and its Consolidated Subsidiaries
prepared on a consolidated basis and in conformity with GAAP applied on a basis consistent
with the consolidated financial statements of the Borrower and its Consolidated Subsidiaries
referred to in Section 7.3(a), duly audited by independent certified public
accountants of recognized standing satisfactory to the Agent, accompanied by an opinion
without significant qualification.




     (c) Certificates. Contemporaneously with the furnishing of a copy of each
annual report and of each quarterly statement provided for in Sections 8.2(a) and
(b), a certificate dated the date of such annual report or such quarterly statement
and signed by either the President, the Chief Financial Officer, the Treasurer or the
Controller of the Borrower to the effect that no Default has occurred and is continuing, or,
if there is any



 









 






such Default, describing it and the steps, if any, being taken to cure it, and
containing a computation of, and showing compliance with, any financial ratio or restriction
contained in this Agreement.




     (d) Reports to SEC and to Shareholders. Copies of each filing and report made
by the Borrower or any Subsidiary with or to any securities exchange or the Securities and
Exchange Commission and of each communication from the Borrower or any Subsidiary to
shareholders generally, promptly upon the filing or making thereof.




     (e) Notice of Default, Litigation, Environmental and ERISA Matters.
Immediately upon learning of the occurrence of any of the following, written notice
describing the same and the steps being taken by Borrower or any Subsidiary affected in
respect thereof: (i) the occurrence of a Default, which notice shall specify such Default
and state that it is a “Notice of Default,” or; (ii) the institution of, or any adverse
determination in, any litigation, arbitration or governmental proceeding which is material
to Borrower or any Subsidiary on a consolidated basis; (iii) the occurrence of any event or
condition specified in Section 7.11(b), (iv) the receipt of any notice, demand,
request for information, citation, summons, order, complaint or assessment or the initiation
of any investigation or review of the kind specified in Section 7.12(b); (v) the
issuance of any cease and desist order, written agreement, cancellation of insurance, or
other public enforcement or administrative action by the FDIC or other regulatory entity; or
(vi) the issuance of any memorandum of understanding or proposed disciplinary action from
the FDIC or other regulatory entity, to the extent it is permitted to disclose such
information to the Agent and the Banks, the Borrower agreeing to use reasonable efforts to
obtain any necessary regulatory consent to such disclosure.




     (f) Other Information. From time to time such other information, financial or
otherwise, concerning the Borrower or any Subsidiary as the Agent or any Bank may reasonably
request.



     8.3 Inspection. Permit the Agent or any Bank and its agents at any time during normal
business hours to inspect their properties and to inspect and make copies of their books and
records, any such inspection to be at the expense of the Borrower if an Event of Default has
occurred and is continuing.



8.4 Financial Requirements.





     (a) Double Leverage. Not permit at any time the Double Leverage Ratio of the
Borrower and its Subsidiaries to be greater than 1.15 to 1.0




     (b) Net Income to Average Assets. Not permit as at any fiscal quarter end the
ratio of (i) consolidated net income of the Borrower and its Subsidiaries for the fiscal
quarter then ending multiplied by four to (ii) the average assets of the Borrower and its
Subsidiaries, during said fiscal quarter to be less than 0.90%.




     (c) Nonperforming Assets. Not permit all assets of the Borrower, all
Subsidiary Banks and other Subsidiaries classified as “non-performing” (which shall include
(i) all loans in non-accrual status, more than ninety (90) days past due in principal



 









 






or interest, restructured or renegotiated, or listed as “other restructured” (all such
loans being called “Nonperforming Loans”) and (ii) “other real estate
owned”) on the FDIC or other regulatory agency call report to at any time exceed two and one
quarter percent (2.25%) of all loans and “other real estate owned” of the Borrower and its
Consolidated Subsidiaries.




     (d) Loan Loss Reserves Ratio. Cause the Borrower and its Consolidated
Subsidiaries to maintain on a consolidated basis as at the last day of each fiscal quarter
of each fiscal year a ratio of loan loss reserves to Nonperforming Loans of at least 80% at
all times prior to June 30, 2006 and 100% at all times on or after June 30, 2006.




     (e) Well Capitalized. Remain at all times “well capitalized” for purposes of
applicable law and regulations, as amended or supplemented from time to time (it being
understood that if the term “well capitalized” is not directly applicable to a bank holding
company, for the purpose of this Section, it shall be assumed to be so applicable and
calculated accordingly).




     (f) Subsidiary Bank. Cause each Subsidiary Bank to remain at all times “well
capitalized” for purposes of applicable law and regulations, as amended and supplemented
from time to time.



     8.5 Indebtedness. Not incur, permit to remain outstanding, assume or in any way
become committed for Indebtedness (including, but not limited to, Indebtedness in respect of money
borrowed from financial institutions, but excluding deposits), except: (i) Indebtedness incurred
hereunder; (ii) Indebtedness existing on the date of this Agreement shown on the financial
statements furnished to Agent before this Agreement was signed; (iii) Indebtedness of the
Subsidiary Banks arising in the ordinary course of the banking business of the Subsidiary Banks;
(iv) Indebtedness incurred by the Borrower or any Subsidiary to the Borrower or any other
Subsidiary; (v) Guarantees of the Borrower of the obligations of any Subsidiary to the extent
required in the normal course of such Subsidiary’s business, by regulations applicable to the
Borrower or such Subsidiary or in connection with the commercial real property leases of such
Subsidiary and (vi) the total amount of Subordinated Indebtedness, Trust Indebtedness and Trust
Guarantees, including any Trust Indebtedness existing as of the date of the First Amendment hereto
and any refinancing thereof, in an aggregate amount not in excess of $85,000,000 at any time
outstanding.



     8.6 Liens. Not create, suffer or permit to exist any Lien upon any of their assets
now or hereafter owned or acquired (specifically including but not limited to the capital stock of
any Subsidiary), except: (i) Liens existing on the date of this Agreement and described on
Schedule 4; (ii) Liens of landlords, contractors, laborers or supplymen, tax liens, or
liens securing performance or appeal bonds, or other similar liens or charges arising out of
Borrower’s or a Subsidiary’s business, provided that tax Liens are removed before related taxes
become delinquent and other Liens are promptly removed, in either case unless contested in good
faith and by appropriate proceedings, and as to which adequate reserves shall have been established
in accordance with GAAP and no foreclosure, sale or similar proceedings have commenced; and (iii)
Liens on the assets of any Subsidiary arising in the ordinary course of its business.



 









 





     8.7 Taxes. Pay and discharge all taxes, assessments and governmental charges or
levies imposed upon them, upon their income or profits or upon any properties belonging to them,
prior to the date on which penalties attach thereto, and all lawful claims for labor, materials and
supplies when due, except that no such tax, assessment, charge, levy or claim need be paid which is
being contested in good faith by appropriate proceedings as to which adequate reserves shall have
been established in accordance with GAAP, and no foreclosure, sale or similar proceedings have
commenced.



     8.8 Investments. Not make any Investments, except that Borrower and any Subsidiary
may:




     (a) make Investments in the Subsidiary Banks;




     (b) make Investments in Subsidiaries other than Subsidiary Banks (other than Guarantees
of Indebtedness of Subsidiaries, except as permitted by Section 8.5);




     (c) make or acquire Investments in order to consummate Acquisitions, provided that (i)
after giving effect to such Acquisition, no Default shall have occurred and be continuing,
(ii) such Acquisitions are undertaken in accordance with all applicable requirements of law;
and (iii) the prior, effective written consent or approval to such Acquisition of the board
of directors or equivalent governing body of the acquiree is obtained. Upon the Borrower’s
or such Subsidiary’s purchase or other acquisition of fifty percent (50%) or more of the
voting stock of any bank, such bank shall thereupon become a “Subsidiary Bank” for all
purposes under this Agreement;




     (d) in the case of the Trust Issuers, purchase the Trust Indebtedness and, in the case
of the Borrower, issue the Trust Guarantee; and




     (e) make other Investments permitted by applicable governmental laws and regulations.


Nothing in this Section 8.8 shall prohibit the Borrower or any Subsidiary from making
loans, advances, or other extensions of credit in the ordinary course of business upon
substantially the same terms as heretofore extended by them in such business or upon such terms as
may at the time be customary in the Borrower’s or such Subsidiary’s business.




     8.9 Capital Structure. The Borrower shall continue to own, directly or indirectly,
the same (or greater) percentage of the stock or other ownership interests in each Subsidiary that
it held on the date of this Agreement as set forth in Schedule 3, and no Subsidiary shall
issue any additional stock or other ownership interests, options or warrants in respect thereof, or
securities convertible into such securities or interests, other than to the Borrower or its
employees or employees of the relevant Subsidiary.



     8.10 Maintenance of Properties. Maintain, or cause to be maintained, in good repair,
working order and condition, all their properties (whether owned or held under lease), and from
time to time make or cause to be made all needed and appropriate repairs, renewals, replacements,
additions, and improvements thereto, so that the business carried on in connection therewith may be
properly and advantageously conducted at all times.



 









 





     8.11 Insurance. Maintain insurance in responsible companies in such amounts and
against such risks as is required by law and such other insurance, in such amount and against such
hazards and liabilities, as is prudent taking into consideration the business of the Borrower and
its Subsidiaries. Each Subsidiary Bank shall have its deposits insured by the FDIC.



     8.12 Use of Proceeds.




     (a) Margin Regulations. Not use or permit any proceeds of the Loans to be
used, either directly or indirectly, for the purpose, whether immediate, incidental or
ultimate, of “purchasing or carrying any margin stock” within the meaning of Regulations U
or X of the Board of Governors of the Federal Reserve System, as amended from time to time.
If requested by any Bank, Borrower and any Subsidiary will furnish to such Bank a statement
in conformity with the requirements of Federal Reserve Form U-1. No part of the proceeds of
the Loan will be used for any purpose which violates or is inconsistent with the provisions
of Regulation U or X of the Board of Governors.




     (b) Tender Offers and Going Private. Not use (or permit to be used) any
proceeds of any Credit Extension to acquire any security in any transaction which is subject
to Section 13 or 14 of the Securities Exchange Act of 1934, as amended, or any regulations
or rulings thereunder.




     (c) Permitted Uses. The proceeds of the Loans shall be used solely for the
Borrower’s general corporate purposes, including the making of loans to Subsidiaries, the
funding of Acquisitions as provided in Section 8.8(c) and stock repurchases.



     8.13 Compliance with Laws. Comply and cause each Subsidiary to be in compliance with
all laws and regulations (whether federal, state or local and whether statutory, administrative,
judicial or otherwise) and with every governmental order or similar action (whether administrative
or judicial), specifically, including but not limited to the Bank Holding Company Act of 1956, as
amended, and with the existing regulations of the Federal Reserve Board relating to bank holding
companies and excluding any non-compliance which would not be reasonably likely to have a material
and adverse effect on the business, assets, liabilities, financial condition, continued operations,
or business prospects of the Borrower or any Subsidiary.



SECTION 9. EVENTS OF DEFAULT




     9.1 Events of Default. One or more of the following events shall constitute an event
of default hereunder and under the Notes (each, an “Event of Default”):




     (a) Nonpayment. The Borrower shall fail to make any payment of principal when
due or any payment of interest, fees or other amounts within five days of when due, payable
hereunder or under any Note or the letter agreement referred to in Section 3.2
hereof;




     (b) Cross-Default. There shall occur any default or event of default with
respect to, or any event that might become such with notice or the passage of time or



 









 






both, or any similar event with respect to, or any event that requires the prepayment
of, Indebtedness of the Borrower or any Subsidiary in the aggregate amount of $5,000,000 or
more or the acceleration of the maturity thereof under the terms of any evidence of
Indebtedness or other agreement issued or assumed or entered into by the Borrower or any
Subsidiary, or under the terms of any indenture, agreement or other instrument under which
any such Indebtedness in the aggregate amount of $5,000,000 or more is evidenced, issued,
assumed, secured, or guaranteed, and such default, event of default or event shall continue
beyond any applicable period of grace;




     (c) Dissolutions, etc. The Borrower or any Subsidiary Bank shall fail to
comply with Section 8.1 hereof or the Borrower or any Subsidiary Bank shall take any
corporate action to approve any action or omission that would result in such a failure;




     (d) Warranties. Any representation, warranty, schedule, certificate, financial
statement, report, notice, or other writing furnished by or on behalf of the Borrower or any
Subsidiary to the Agent or any Bank is false or misleading in any material respect on the
date as of which the facts therein set forth are stated or certified;




     (e) Change in Control. A Change in Control shall have occurred with respect to
the Borrower;




     (f) ERISA. An event or condition specified in Section 7.11(b) shall
occur or exist with respect to any Plan or Multiemployer Plan if as a result of such event
or condition, together with all other such events or conditions, the Borrower or any ERISA
Affiliate shall incur or in the opinion of the Majority Banks shall be reasonably likely to
incur a liability to a Plan, a Multiemployer Plan or the PBGC (or any combination of the
foregoing) which is, in the determination of the Majority Banks, material in relation to the
consolidated financial condition, business, operations or prospects taken as a whole of the
Borrower and its Consolidated Subsidiaries;




     (g) Judgments. (i) One or more non-interlocutory judgments, non-interlocutory
orders, decrees of arbitration awards is entered against the Borrower or any Subsidiary
involving in the aggregate a liability (to the extent not covered by independent third-party
insurance as to which the insurer does not dispute coverage) as to any single or related
series of transactions, incidents or conditions, of $5,000,000 or more, and the same shall
remain unsatisfied, unvacated and unstayed pending appeal for a period of 10 days after the
entry thereof.




     (ii) Any non-monetary judgment, order or decree is entered against the Borrower
or any Subsidiary which does or would reasonably be expected to have a material and
adverse effect on the business, assets, liabilities, financial condition, continued
operations or business prospects of the Borrower or any Subsidiary, and there shall
be a period of 10 consecutive days during which a stay of enforcement of such
judgment or order, by reason of a pending appeal or otherwise, shall not be in
effect.



 









 






     (h) Cease and Desist Order or Other Action. The FDIC or any other federal or
state regulatory authority shall issue a cease and desist order or take other action of a
disciplinary or remedial nature against the Borrower or any Subsidiary and such order or
other action shall be reasonably likely to have a material adverse effect on the financial
condition or continued operations of the Borrower or any Subsidiary or there shall occur
with respect to any Subsidiary Bank any event which is grounds for the required submission
of a capital restoration plan under 12 U.S.C. §1831o(e)(2) and the regulations thereunder,
as amended;




     (i) Noncompliance with this Agreement. The Borrower shall fail to comply with
any provision of this Agreement, which failure does not otherwise constitute an Event of
Default, and (if such Event of Default is capable of being cured) such failure shall
continue for 10 days;




     (j) Bankruptcy — Filing of Petition. The Borrower or any Subsidiary shall file
a petition or answer or consent seeking relief under Title 11 of the United States Code, as
now constituted or hereafter amended, or any other applicable federal, state or foreign
bankruptcy law or other similar law, or the Borrower or any Subsidiary shall consent to the
institution of proceedings thereunder or the filing of any such petition or to the
appointment or taking possession of a receiver, liquidator, assignee, trustee, custodian,
sequestrator or similar official of the Borrower or any Subsidiary or the Borrower or any
Subsidiary shall take any corporate action to approve any of the foregoing;




     (k) Bankruptcy — Entry of Order for Relief. There shall be entered a decree or
order by a court constituting an order for relief in respect of the Borrower or any
Subsidiary under Title 11 of the United States Code, as now constituted or hereafter
amended, or any other applicable federal, state or foreign bankruptcy law or other similar
law, or appointing a receiver, liquidator, assignee, trustee, custodian, sequestrator or
similar official of the Borrower or any Subsidiary or of any substantial part of their
respective properties, or ordering the winding-up of or liquidation of the affairs of the
Borrower or any Subsidiary or ordering the merger or consolidation of the Borrower or any
Subsidiary with or into any other entity, and any such decree or order shall continue
unstayed and in effect for a period of 30 consecutive days; or




     (l) Insolvency. The Borrower or any Subsidiary shall become insolvent or shall
fail or be unable to pay its debts as they mature, or shall admit in writing its inability
to pay its debts as they mature, or shall make a general assignment for the benefit of its
creditors, or shall enter into any composition or similar agreement, or shall suspend the
transaction of all or a substantial portion of its usual business, or any Subsidiary Bank
shall have its charter to operate as a bank or savings and loan association revoked, shall
be closed by any regulatory authority, or shall cease to have deposits insured by the FDIC.



     9.2 Remedies. Upon the occurrence of any Event of Default set forth in
subsections (a) through (i) of Section 9.1 and during the continuance
thereof, the Agent, on request of the Majority Banks, shall declare the Commitments to be
terminated and/or declare



 









 







the Loans and any other amounts payable hereunder and under the Notes to the Agent and the
Banks to be immediately due and payable, whereupon the Commitments shall be forthwith terminated
and/or the Loans and any other amounts payable hereunder and under the Notes shall forthwith become
due and payable. Upon the occurrence of any Event of Default set forth in subsections (j)
through (l) of Section 9.1, the Commitments shall be immediately and automatically
terminated and the Loans and any other amounts owed to the Agent and the Banks hereunder and under
the Notes shall be immediately and automatically due and payable without action of any kind on the
part of Agent or any Bank. The Borrower expressly waives diligence, presentment, demand, notice,
or protest of any kind in connection herewith.



SECTION 10. THE AGENT




     10.1 Appointment of Agent. Each Lender irrevocably appoints SunTrust Bank as the
Agent and authorizes it to take such actions on its behalf and to exercise such powers as are
delegated to the Agent under this Agreement and the other Loan Documents, together with all such
actions and powers that are reasonably incidental thereto. The Agent may perform any of its duties
hereunder or under the other Loan Documents by or through any one or more sub-agents or
attorneys-in-fact appointed by the Agent. The Agent and any such sub-agent or attorney-in-fact may
perform any and all of its duties and exercise its rights and powers through their respective
Related Parties. The exculpatory provisions set forth in this Article shall apply to any such
sub-agent or attorney-in-fact and the Related Parties of the Agent, any such sub-agent and any such
attorney-in-fact and shall apply to their respective activities in connection with the syndication
of the credit facilities provided for herein as well as activities as Agent.



     10.2 Nature of Duties of Administrative Agent. The Agent shall not have any duties or
obligations except those expressly set forth in this Agreement and the other Loan Documents.
Without limiting the generality of the foregoing, (a) the Agent shall not be subject to any
fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing,
(b) the Agent shall not have any duty to take any discretionary action or exercise any
discretionary powers, except those discretionary rights and powers expressly contemplated by the
Loan Documents that the Agent is required to exercise in writing by the Majority Banks (or such
other number or percentage of the Lenders as shall be necessary under the circumstances as provided
in Section 11.4), and (c) except as expressly set forth in the Loan Documents, the Agent
shall not 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 Subsidiaries that is communicated to or obtained
by the Agent or any of its Affiliates in any capacity. The Agent shall not be liable for any
action taken or not taken by it, its sub-agents or attorneys-in-fact with the consent or at the
request of the Required Lenders (or such other number or percentage of the Lenders as shall be
necessary under the circumstances as provided in Section 11.4) or in the absence of its own
gross negligence or willful misconduct. The Agent shall not be responsible for the negligence or
misconduct of any sub-agents or attorneys-in-fact selected by it with reasonable care. The Agent
shall not be deemed to have knowledge of any Default unless and until written notice thereof (which
notice shall include an express reference to such event being a “Default” or “Event of Default”
hereunder) is given to the Agent by the Borrower or any Bank, and the Agent 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 any 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 and conditions set forth in any Loan Document, (iv) the validity, enforceability,
effectiveness or genuineness of any Loan Document or any other agreement, instrument or document,
or (v) the satisfaction of any condition set forth in Section 6 or elsewhere in any Loan Document,
other than to confirm receipt of items expressly required to be delivered to the Agent. The Agent
may consult with legal counsel (including counsel for the Borrower) concerning all matters
pertaining to such duties.



     10.3 Lack of Reliance on the Administrative Agent. Each of the Banks acknowledges
that it has, independently and without reliance upon the Agent or any other Bank 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 of the Banks, also acknowledges that it will, independently and
without reliance upon the Agent or any other Bank and based on such documents and information as it
has deemed appropriate, continue to make its own decisions in taking or not taking of any action
under or based on this Agreement, any related agreement or any document furnished hereunder or
thereunder.



     10.4 Certain Rights of the Agent. If the Agent shall request instructions from the
Majority Banks with respect to any action or actions (including the failure to act) in connection
with this Agreement, the Agent shall be entitled to refrain from such act or taking such act,
unless and until it shall have received instructions from such Banks; and the Agent shall not incur
liability to any Person by reason of so refraining. Without limiting the foregoing, no Bank shall
have any right of action whatsoever against the Agent as a result of the Agent acting or refraining
from acting hereunder in accordance with the instructions of the Majority Banks where required by
the terms of this Agreement.



     10.5 Reliance by Agent. The 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 believed by it to be genuine and to have been signed, sent or made by the
proper Person. The Agent may also rely upon any statement made to it orally or by telephone and
believed by it to be made by the proper Person and shall not incur any liability for relying
thereon. The Agent may consult with legal counsel (including counsel for the Borrower),
independent public 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 such counsel, accountants or
experts.



     10.6 The Agent in its Individual Capacity. The Bank serving as the Agent shall have
the same rights and powers under this Agreement and any other Loan Document in its capacity as a
Bank as any other Bank and may exercise or refrain from exercising the same as though it were not
the Agent; and the terms “Banks”, “Majority Banks”, “holders of Notes”, or any similar terms shall,
unless the context clearly otherwise indicates, include the Agent in its individual capacity. The
bank acting as the Agent and its Affiliates may accept deposits from, lend money to, and generally
engage in any kind of business with the Borrower or any Subsidiary or Affiliate of the Borrower as
if it were not the Agent hereunder.



     10.7 Successor Agent.



 









 






     (a) The Agent may resign at any time by giving notice thereof to the Banks and the
Borrower. Upon any such resignation, the Majority Banks shall have the right to appoint a
successor Agent, subject to the approval by the Borrower provided that no Default shall
exist at such time. If no successor Agent shall have been so appointed, and shall have
accepted such appointment within 30 days after the retiring Agent gives notice of
resignation, then the retiring Agent may, on behalf of the Banks, appoint a successor Agent,
which shall be a commercial bank organized under the laws of the United States of America or
any state thereof or a bank which maintains an office in the United States, having a
combined capital and surplus of at least $500,000,000.




     (b) Upon the acceptance of its appointment as the Agent hereunder by a successor, such
successor Agent shall thereupon succeed to and become vested with all the rights, powers,
privileges and duties of the retiring Agent, and the retiring Agent shall be discharged from
its duties and obligations under this Agreement and the other Loan Documents. If within 45
days after written notice is given of the retiring Agent’s resignation under this
Section 10.7 no successor Agent shall have been appointed and shall have accepted
such appointment, then on such 45th day (i) the retiring Agent’s resignation shall become
effective, (ii) the retiring Agent shall thereupon be discharged from its duties and
obligations under the Loan Documents and (iii) the Majority Banks shall thereafter perform
all duties of the retiring Agent under the Loan Documents until such time as the Majority
Banks appoint a successor Agent as provided above. After any retiring Agent’s resignation
hereunder, the provisions of this Section 10 shall continue in effect for the benefit of
such retiring Agent and its representatives and agents in respect of any actions taken or
not taken by any of them while it was serving as the Agent.



     10.8 Authorization to Execute other Loan Documents. Each Bank hereby authorizes the
Agent to execute on behalf of all Banks all Loan Documents other than this Agreement.



SECTION 11. MISCELLANEOUS




     11.1 Waiver. No failure on the part of the Agent or any Bank to exercise, no delay in
exercising, and no course of dealing with respect to, any right, power or privilege under this
Agreement or any Note shall operate as a waiver thereof, nor shall any single or partial exercise
thereof preclude any other or further exercise thereof or the exercise of any other right, power or
privilege. The remedies provided herein are cumulative and not exclusive of any remedies provided
by law.



     11.2 Notices. Except as otherwise provided in this Agreement, all notices and other
communications provided for herein shall be given or made in writing and telecopied, mailed or
delivered to the notice address of the intended recipient set forth on the signature pages hereof,
or as to any party, at such other address as shall be designated by such party in a notice to each
other party. Except as otherwise provided in this Agreement, all such communications shall be
deemed to have been duly given when properly transmitted by telecopier or personally delivered or,
in the case of a mailed notice, upon receipt, in each case given or addressed as aforesaid.



     11.3 Expenses, Etc.



 









 






     (a) The Borrower agrees to pay or reimburse each of the Banks and the Agent for: (a)
all reasonable out-of-pocket costs and expenses of the Agent (including, without limitation,
the reasonable fees and expenses of Mayer, Brown, Rowe & Maw, LLP, special counsel to the
Agent) in connection with (i) the negotiation, preparation, execution and delivery of this
Agreement and the Notes, and (ii) any amendment, modification or waiver of any of the terms
of this Agreement or any of the Notes; and (b) all reasonable costs and expenses of the
Banks and the Agent (including reasonable counsels’ fees (which counsel may be employees of
the Agent or the Banks)) in connection with any Default and any enforcement or collection
proceedings resulting therefrom.




     (b) The Borrower shall indemnify the Agent, each Lender, and each Related Party of any
of the foregoing (each, an “Indemnitee”) against, and hold each of them harmless
from, any and all costs, losses, liabilities, claims, damages and related expenses,
including the fees, charges and disbursements of any counsel for any Indemnitee, which may
be incurred by or asserted against any Indemnitee arising out of, in connection with or as a
result of (i) the execution or delivery of this Agreement or any other agreement or
instrument contemplated hereby, the performance by the parties hereto of their respective
obligations hereunder or the consummation of any of the transactions contemplated hereby,
(ii) any Loan or any actual or proposed use of the proceeds therefrom or (iii) any actual or
prospective claim, litigation, investigation or proceeding relating to any of the foregoing,
whether based on contract, tort or any other theory and regardless of whether any Indemnitee
is a party thereto; provided, that the Borrower shall not be obligated to indemnify any
Indemnitee for any of the foregoing arising out of such Indemnitee’s gross negligence or
wanton misconduct as determined by a court of competent jurisdiction.




     (c) The Borrower shall pay, and hold the Agent and each of the Banks harmless from and
against, any and all present and future stamp, documentary, and other similar taxes with
respect to this Agreement and any other Loan Documents, any collateral described therein, or
any payments due thereunder, and save the Agent and each Lender harmless from and against
any and all liabilities with respect to or resulting from any delay or omission to pay such
taxes.




     (d) To the extent that the Borrower fails to pay any amount required to be paid to the
Agent under clauses (a), (b) or (c) hereof, each Bank severally agrees to pay to the Agent
such Bank’s Percentage (determined as of the time that the unreimbursed expense or indemnity
payment is sought) of such unpaid amount; provided, that the unreimbursed expense or
indemnified payment, claim, damage, liability or related expense, as the case may be, was
incurred by or asserted against the Agent in its capacity as such.




     (e) 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 actual or direct damages) arising out of, in connection with or as a result of,
this Agreement or any agreement or instrument contemplated hereby, the transactions
contemplated therein, any Loan or the use of proceeds thereof.



 









 






     (f) All amounts due under this Section shall be payable promptly after written demand
therefor, provided, however, that such amounts shall not be payable during any period the
Borrower is disputing such amounts in good faith and is diligently pursuing resolution of
such dispute.




     (g) Nothing in this Section 11.3 shall require the Borrower to reimburse any Bank for
costs or expenses related to any assignment or participation permitted under Section 11.5.



     11.4 Amendments, Etc. Except as otherwise expressly provided in this Agreement, any
provision of this Agreement may be waived, amended or modified only by an instrument in writing
signed by the Borrower, the Agent and the Majority Banks; provided that no amendment, modification
or waiver shall, unless by an instrument signed by the Agent and all of the Banks: (a) increase or
extend the term of the Commitments, except as provided in Section 2.10, or extend the
Revolving Credit Commitment Termination Date, (b) extend any date fixed for the payment of any
principal of or interest on any Loan or any fee, (c) reduce the amount of any payment of principal
thereof or the rate at which interest is payable thereon or any fee is payable hereunder, (d) alter
the terms of this Section 11.4 or of Section 11.6(a), (e) amend the definition of
the term “Majority Banks” or (f) waive any of the conditions precedent set forth in Section
6 hereof.



     11.5 Successors and Assigns.




     (a) 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 each Bank (and any attempted assignment or transfer by
the Borrower without such consent shall be null and void). Nothing in this Agreement,
express or implied, shall be construed to confer upon any Person (other than the parties
hereto, their respective successors and assigns permitted hereby and, to the extent
expressly contemplated hereby, the Related Parties of each of the Agent and the Banks) any
legal or equitable right, remedy or claim under or by reason of this Agreement.




     (b) No Bank may assign to one or more Eligible Assignees all or a portion of its rights
and obligations under this Agreement (including all or a portion of its Commitment and the
Loans at the time owing to it) without the prior written consent of the Borrower; provided
that no such consent shall be required during the continuance of an Event of Default. Any
Bank may, after obtaining such consent if such consent is required, may assign to one or
more Eligible Assignees all or a portion of its rights and obligations under this Agreement
(including all or a portion of its commitment and the Loans at the time owing to it);
provided that (i) except in the case of an assignment of the entire remaining amount of the
assigning Bank’s Commitment and the Loans at the time owing to it or in the case of an
assignment to a Bank, an Affiliate of a Bank or an Approved Fund with respect to a Bank, the
aggregate amount of the Commitment (which for this purpose includes Loans outstanding
thereunder) of the assigning Bank subject to each such assignment (determined as of the date
the Assignment and Acceptance with



 









 






respect to such assignment is delivered to the Agent) shall not be less than
$1,000,000, unless each of the 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), (ii) each partial assignment shall be made as an assignment of a
proportionate part of all the assigning Bank’s rights and obligations under this Agreement
with respect to the Loan or the Commitment assigned and (iii) the parties to each assignment
shall execute and deliver to the Agent an Assignment and Acceptance, together with a
processing and recordation fee of $1,000, and the Eligible Assignee, if it shall not be a
Bank, shall deliver to the Agent an Administrative Questionnaire. Upon (i) the execution
and delivery of the Assignment and Acceptance by the assigning Bank and assignee Bank, (ii)
acceptance and recording thereof by the Agent pursuant to paragraph (c) of this Section,
(iii) consent thereof from the Borrower to the extent required pursuant to this clause (b)
and (iv) if such assignee Bank is a Foreign Bank, compliance by such Person with Section
5.6(f), from and after the effective date specified in each Assignment and Acceptance,
the Eligible Assignee thereunder shall be a party hereto and, to the extent of the interest
assigned by such Assignment and Acceptance, have the rights and obligations of a Bank under
this Agreement, and the assigning Bank thereunder shall, to the extent of the interest
assigned by such Assignment and Acceptance, be released from its obligations under this
Agreement (and, in the case of an Assignment and Acceptance covering all of the assigning
Bank’s rights and obligations under this Agreement, such Bank shall cease to be a party
hereto but shall continue to be entitled to the benefits of Sections 5.1, 5.5, 5.6 and 11.3.
Any assignment or transfer by a Bank of rights or obligations under this Agreement that
does not comply with this paragraph shall be treated for purposes of this Agreement as a
sale by such Bank of a participation in such rights and obligations in accordance with
paragraph (d) of this Section.




     (c) The Agent, acting solely for this purpose as an agent of the Borrower, shall
maintain at one of its offices in Atlanta, Georgia a copy of each Assignment and Acceptance
delivered to it and a register for the recordation of the names and addresses of the Banks,
and the Commitments of, and principal amount of the Loans owing to, each Bank pursuant to
the terms hereof from time to time (the “Register”). The entries in the Register shall be
conclusive, and the Borrower, the Agent and the Banks may treat each Person whose name is
recorded in the Register pursuant to the terms hereof as a Bank hereunder for all purposes
of this Agreement, notwithstanding notice to the contrary.




     (d) Any Bank may, without the consent of, or notice to, the Borrower, or the
Administrative Agent sell participations to one or more banks or other entities (a
“Participant”) in all or a portion of such Bank’s rights and/or obligations under
this Agreement (including all or a portion of its Commitment and/or the Loans owing to it);
provided that (i) such Bank’s obligations under this Agreement shall remain
unchanged, (ii) such Bank shall remain solely responsible to the other parties hereto for
the performance of such obligations and (iii) the Borrower, the Administrative Agent, and
the other Banks shall continue to deal solely and directly with such Bank in connection with
such Bank’s rights and obligations under this Agreement. Any agreement or instrument
pursuant to which a Bank sells such a participation shall provide that such Bank 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 Bank will not, without the consent of the
Participant, agree to any amendment, modification or waiver with respect to the following to
the extent affecting such Participant: (i) increase the Commitment of any Bank without the
written consent of such Bank, (ii) reduce the principal amount of any Loan or reduce the
rate of interest thereon, or reduce any fees payable hereunder, without the written consent
of each Bank affected thereby, (iii) postpone the date fixed for any payment of any
principal of, or interest on, any Loan or interest thereon or any fees hereunder or reduce
the amount of, waive or excuse any such payment, or postpone the scheduled date for the
termination or reduction of any Commitment, without the written consent of each Bank
affected thereby, or (iv) change any of the provisions of this Section or the definition of
“Majority Banks” or any other provision hereof specifying the number or percentage of Banks
which are required to waive, amend or modify any rights hereunder or make any determination
or grant any consent hereunder, without the consent of each Bank. Subject to paragraph (e)
of this Section, the Borrower agrees that each Participant shall be entitled to the benefits
of Sections 5.1, 5.5, and 5.6 to the same extent as if it were a
Bank and had acquired its interest by assignment pursuant to paragraph (b) of this Section.




     (e) A Participant shall not be entitled to receive any greater payment under
Section 5.1, and 5.5 than the applicable Bank 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 Bank if it were a Bank shall not be entitled to the
benefits of Section 5.6 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 5.6 as though it were a Bank.




     (f) Any Bank may at any time pledge or assign a security interest in all or any portion
of its rights under this Agreement to secure obligations of such Bank, including without
limitation any pledge or assignment to secure obligations to a Federal Reserve Bank;
provided that no such pledge or assignment of a security interest shall release a Bank from
any of its obligations hereunder or substitute any such pledgee or assignee for such Bank as
a party hereto.



     11.6 Confidentiality. A Bank may, with the consent of the Borrower (which consent
shall not unreasonably be withheld), furnish any non-public information concerning the Borrower or
any of its subsidiaries in the possession of such Bank from time to time to actual or prospective
assignees and participants; provided that such recipient shall agree with such Bank (on behalf of
itself and each of its affiliates, directors, officers, employees and representatives) that (A) the
information so furnished will not be used by it except in connection with this Agreement and (B) it
shall use reasonable precautions, in accordance with its customary procedures for handling
confidential information and in accordance with safe and sound banking practices, to keep such
information confidential, provided that nothing in such agreement shall limit the disclosure of
such information (i) to the extent required by statute, rule, regulation or judicial process, (ii)
to its counsel or to counsel for any of the Banks or the Agent, (iii) to bank examiners, auditors
or accountants or other professional advisors, (iv) to the Agent or any other Bank, (v) in
connection with any litigation to which the Agent or any one or more of the Banks is



 









 







a party or (vi) to the extent such information has become public (other than by its breach of
such agreement).



     11.7 Survival. The obligations of the Borrower under Sections 5.1,
5.5, 5.6 and 11.3 hereof shall survive the repayment of the Loans and the
termination of the Commitments.



     11.8 Captions. The table of contents and captions and Section headings appearing
herein are included solely for convenience of reference and are not intended to affect the
interpretation of any provision of this Agreement.



     11.9 Counterparts. This Agreement may be executed in any number of counterparts, all
of which taken together shall constitute one and the same instrument, and any of the parties hereto
may execute this Agreement by signing one or more of such counterparts.



     11.10 Jurisdiction, Service of Process.




     (a) Any suit, action or proceeding against the Borrower with respect to this Agreement
or the Notes or any judgment entered by any court in respect of any thereof may be brought
in the courts of the State of Georgia located in Fulton County or in the U.S. District Court
for the Northern District of Georgia as the Agent or any Bank may elect, and the Borrower
hereby submits to the non-exclusive jurisdiction of each such court for the purpose of any
such suit, action or proceeding. The Borrower consents to the service of process upon it in
any such suit, action or proceeding by regular first class mail addressed to it at its
address specified in Section 11.2. The foregoing shall not, however, limit the
right of the Agent or any Bank to serve process in any other manner permitted by law or to
commence any suit, action or proceeding or to obtain execution of judgment in any
appropriate jurisdiction. Without limiting the foregoing, the Borrower further agrees that
the Agent or any Bank may at their option submit any dispute which may arise in connection
with this Agreement or the Notes to any other court having jurisdiction over the Borrower or
the Borrower’s property.




     (b) The Borrower hereby irrevocably waives any objection which it may now or hereafter
have to the laying of venue of any suit, action or proceeding arising out of or relating to
this Agreement or the Notes brought in the courts of the State of Georgia located in Fulton
County or the U.S. District Court for the Northern District of Georgia, and hereby further
irrevocably waives any claim that any such suit, action or proceeding brought in any such
court has been brought in an inconvenient forum.



     11.11 Set-off. The Borrower agrees that in addition to any right of recoupment,
set-off, banker’s lien or counterclaim the Agent or any Bank may otherwise have, the Agent and each
Bank shall be entitled to offset deposits (including all account balances, whether provisional or
final and whether or not collected or available) and other claims of the Borrower at any of the
Agent’s or such Bank’s offices, in Dollars or in any other currency, against any amount payable to
the Agent or such Bank hereunder which is not paid when due (regardless of whether such deposits
and other claims are then due).



 









 





     11.12 Governing Law. THIS AGREEMENT AND THE NOTES SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE INTERNAL LAW OF THE STATE OF GEORGIA.



     11.13 Waiver of Jury Trial. THE BORROWER HEREBY IRREVOCABLY WAIVES, TO THE FULLEST
EXTENT PERMITTED BY LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF
OR RELATING TO THIS AGREEMENT, THE NOTES OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.



 









 




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



	 	 	 	 	 
	 	 	INTEGRA BANK CORPORATION

	 

	 	By: /s/ Allan DelosSantos

	 
	 	 

	 

	 	Name: Allan DelosSantos

	 

	 	Title: Senior Vice President & Treasurer

	 
	 	 	 	 
	 

	 	Address: 21 S. E. Third Street

	 	 	Evansville, Indiana 47705
	 	 	Telecopier No. (812) 464-9825
	 

	 	Attention: Michael T. Vea,

	 	 	Chairman, President and CEO
	 	 	Telephone No. (812) 464-9604
	 
	 	 	 	 
	 	 	BANKS:
	 
	 	 	 	 
	 	 	SUNTRUST BANK,

	 	 	as Agent
	 
	 	 	 	 
	 

	 	By: /s/ Alisa A Waxman

	 

	 	 

	 

	 	Name: Alisa A. Waxman

	 

	 	Title: Vice President

	 

	 	Address: 303 Peachtree Street
	 	
	 

	 	Third
Floor
	 	
	 

	 	Atlanta, GA 30308
	 	 
	 
	 	 	 	 
	 

	 	Telecopier No.: (404) 581-1775

	 
	 	 	 	 
	 

	 	Attention: Alisa A. Waxman

	 

	 	Vice President
	 	
	 
	 	 	 	 
	 

	 	Telephone No.: (404) 230-1919
	 	






 









 






	 	 	 	 	 
	 	 	SUNTRUST BANK
	 
	 	 	 	 
	 

	 	By:   /s/ Alisa A. Waxman

	 

	 	 


	 

	 	Name:  Alisa A. Waxman

	 

	 	Title:   Vice President

	 

	 	Address:  303 Peachtree Street

	 

	 	          
       Third Floor
	 

	 	             
     Atlanta, GA 30308
	 
	 	 	 	 
	 

	 	Telecopier No.:  (404) 581-1775

	 

	 	Attention:   Alisa A. Waxman

	 

	 	             
     Vice President
	 
	 	 	 	 
	 

	 	Telephone No.: (404) 230-1919