EX-10.39






Exhibit 10.39




Execution copy




 






U.S. $15,000,000




CREDIT AGREEMENT




Dated as of July 20, 2007




between




FIRSTMERIT CORPORATION

as Borrower




and




SunTrust Bank,

as Lender




 








 









 







 Exhibit 10.39




TABLE OF CONTENTS




	 	 	 	 	 	 	 
	 	 	 	 	Page
	SECTION 1. DEFINITIONS	 	 	1	 
	1.01.
	 	Certain Defined Terms	 	 	1	 
	1.02.
	 	Types of Advances	 	 	9	 
	SECTION 2. THE ADVANCES	 	 	9	 
	2.01.
	 	The Commitment	 	 	9	 
	2.02.
	 	Advances	 	 	10	 
	2.03.
	 	Interest Elections	 	 	10	 
	2.04.
	 	Termination and Reduction of the Commitment	 	 	11	 
	2.05.
	 	Repayment of Advances; Note	 	 	11	 
	2.06.
	 	Prepayment of Advances	 	 	12	 
	2.07.
	 	Interest; Fees	 	 	12	 
	2.08.
	 	Alternate Rate of Interest	 	 	13	 
	2.09.
	 	Increased Costs	 	 	14	 
	2.10.
	 	Break Funding	 	 	14	 
	2.11.
	 	Taxes	 	 	15	 
	2.12.
	 	Payments Generally	 	 	15	 
	2.13.
	 	Designation of a Different Applicable Lending Office	 	 	16	 
	SECTION 3. CONDITIONS OF LENDING	 	 	16	 
	3.01.
	 	Condition Precedent to Initial Advance	 	 	16	 
	3.02.
	 	Conditions Precedent to Each Advance	 	 	17	 
	SECTION 4. REPRESENTATIONS AND WARRANTIES	 	 	17	 
	SECTION 5. COVENANTS	 	 	19	 
	5.01.
	 	Covenants	 	 	19	 
	SECTION 6. EVENTS OF DEFAULT	 	 	25	 
	6.01.
	 	Events of Default	 	 	25	 
	SECTION 7. MISCELLANEOUS	 	 	26	 
	7.01.
	 	Amendments, Etc.	 	 	26	 
	7.02.
	 	Notices, Etc.	 	 	27	 
	7.03.
	 	No Waiver; Remedies	 	 	27	 
	7.04.
	 	Costs, Expenses and Indemnification	 	 	27	 
	7.05.
	 	Assignments and Participations	 	 	28	 
	7.06.
	 	Governing Law; Submission to Jurisdiction	 	 	29	 
	7.07.
	 	Severability	 	 	30	 
	7.08.
	 	Execution in Counterparts	 	 	30	 
	7.09.
	 	Survival	 	 	30	 
	7.10.
	 	Waiver of Jury Trial	 	 	30	 
	7.11.
	 	No Fiduciary Relationship	 	 	30	 
	7.12.
	 	Captions	 	 	30	 
	7.13.
	 	USA PATRIOT Act	 	 	30	 
	7.14.
	 	Confidentiality	 	 	30	 
	 
	EXHIBITS:	 	 	 	 
	 
	EXHIBIT A
	 	FORM OF NOTE	 	 	 	 






 









 






          CREDIT AGREEMENT dated as of July 20, 2007, between FIRSTMERIT CORPORATION, an Ohio
corporation (the “Borrower”), and SunTrust Bank (the “Lender”).




          The Borrower has requested that the Lender make advances to it in an aggregate principal
amount up to but not exceeding $15,000,000 at any one time outstanding, and the Lender is prepared
to make such advances on and subject to the terms and conditions hereof. Accordingly, the parties
hereto agree as follows:




     SECTION 1. DEFINITIONS



     1.01. Certain Defined Terms. As used in this Agreement, the following terms shall have
the following meanings (such meanings to be equally applicable to both the singular and plural
forms of the terms defined):




     “Advance” has the meaning specified in Section 2.01.




     “Affiliate” means, as to any Person, any other Person that, directly or
indirectly, controls, is controlled by or is under common control with such Person,
provided, that for this purpose, any Person more than 5% of the outstanding Voting
Shares of which is owned directly or indirectly by the Borrower shall be deemed to be an
Affiliate of the Borrower.




     “Applicable Facility Fee Rate”, “Applicable Margin” with respect to
LIBO Rate Advances, “Applicable Margin” with respect to Base Rate Advances and
“Applicable Utilization Fee Rate” shall mean, for any day, the respective rate per
annum set forth in the table below opposite the Rating Level prevailing on such day under
the caption “Applicable Facility Fee Rate”, “Applicable Margin — LIBO Rate Advances”
“Applicable Margin — Base Rate Advances” or “Applicable Utilization Fee Rate”, as the case
may be:



	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Applicable	 	 	 	 
	 	 	Applicable	 	Margin —	 	Applicable	 	Applicable
	 	 	Facility Fee	 	LIBO Rate	 	Margin — Base	 	Utilization Fee
	Rating Level	 	Rate	 	Advances	 	Rate Advances	 	Rate
	Rating Level 1
	 	 	.08	%	 	 	.27	%	 	 	0.000	%	 	 	.05	%
	Rating Level 2
	 	 	.10	%	 	 	.30	%	 	 	0.000	%	 	 	.05	%
	Rating Level 3
	 	 	.125	%	 	 	.325	%	 	 	0.000	%	 	 	.05	%







Each change in the Applicable Facility Fee Rate, Applicable Margin with respect to LIBO Rate
Advances, Applicable Margin with respect to Base Rate Advances and the Applicable
Utilization Fee Rate resulting from a change in the Debt Rating shall become effective on
the date of announcement or publication by the relevant Rating Agency of a change in the
Debt Rating or, in the absence of such announcement or publication, on the effective date of
such change.




 










 




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          “Applicable Lending Office” means the office of the Lender specified on the
signature page hereof, or such other office of the Lender as the Lender may from time to
time specify to the Borrower.




          “Bank Regulatory Authority” shall mean the Board of Governors of the Federal
Reserve System, the Federal Deposit Insurance Corporation, the Financial Services Authority,
the Office of the Comptroller of the Currency, and any other bank regulatory authority
(including, without limitation, relevant state bank regulatory authorities) having
jurisdiction over the Borrower or any Insured Subsidiary of the Borrower.




          “Base Rate” means, for any period, a fluctuating interest rate per annum in
effect from time to time which shall at all times be equal to the higher of:




          (a) the per annum rate of interest announced publicly by SunTrust Bank in
Atlanta, Georgia, from time to time, to be its prime lending rate, and




          (b) 0.50% per annum above the Federal Funds Rate.


Each change in any interest rate provided for herein based upon the Base Rate resulting from
a change in the Base Rate shall take effect at the time of such change in the Base Rate.





          “Base Rate Advance” means, at any time, an Advance which bears interest at the
Base Rate.




          “Business Day” means (a) any day other than Saturday, Sunday, or a day on which
banks are not required or authorized to close in Atlanta, Georgia and (b) if the applicable
Business Day relates to any LIBO Rate Advance, which is also a day on which dealings in
deposits are carried on in the London interbank market.




          “Cash Equivalents” means any of the following: (a) readily marketable direct
obligations of the United States of America, or of any agency or instrumentality thereof, or
obligations guaranteed as to principal and interest by the United States of America, or of
any agency thereof, in each case maturing not more than 270 days from the date of
acquisition thereof; and (b) certificates of deposit issued by any bank or trust company
organized under the laws of the United States of America or any state thereof and having
capital, surplus and undivided profits of at least $500,000,000 and a rating with respect to
its public, long-term, unsecured, unsubordinated debt securities of not less than “A” by S&P
or “A2” by Moody’s, maturing not more than 270 days from the date of acquisition thereof.




          “Change in Control” means that (i) any Person or group of Persons (within the
meaning of Section 13 or 14 of the Securities Exchange Act of 1934, as amended) shall
acquire beneficial ownership (within the meaning of Rule 13d-3 promulgated under said Act)
of more than 20% of the outstanding Voting Shares of the Borrower, or (ii) the
Borrower shall cease to control at least 80% of the outstanding Voting Shares of









 





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FirstMerit Bank or any other Insured Subsidiary, or (iii) during any period of twenty-five
(25) consecutive calendar months, a majority of the Board of Directors of the Borrower shall
no longer be composed of individuals (x) who were members of said Board on the first day of
such period, (y) whose election or nomination to said Board was approved by individuals
referred to in clause (x) above constituting at the time of such election or nomination at
least a majority of said Board or (z) whose election or nomination to said Board was
approved by individuals referred to in clauses (x) and (y) above constituting at the time of
such election or nomination at least a majority of said Board.




          “Closing Date” means the date on which the Lender notifies the Borrower that
the conditions precedent set forth in Section 3.01 have been satisfied.




          “Code” means the Internal Revenue Code of 1986, as amended from time to time.




          “Commitment” has the meaning specified in Section 2.01.




          “Commitment Termination Date” means December 1, 2008 or such earlier date if
terminated pursuant to Section 6.01.




          “Consent Order” means that certain Consent Order issued by the Comptroller of
the Currency of the United States of America on November 20, 2006, regarding certain
reporting requirements and the development and implementation of certain internal controls
for FirstMerit Bank, which Consent Order incorporates by reference the Stipulation and
Consent to the Issuance of a Consent Order, executed by the Board of Directors of FirstMerit
Bank.




          “Consolidated Net Worth” means the aggregate of the capital stock, surplus and
retained earnings of the Borrower and its Consolidated Subsidiaries, but excluding treasury
stock and capital stock subscribed and unissued, all determined on a consolidated basis.




          “Consolidated Non-Performing Assets” means, on any date, the aggregate amount
of loans and leases that are not accruing interest or that are 90 days or more past due in
the payment of principal and interest, in substance foreclosures and foreclosed real estate
and other foreclosed property of the Borrower and its Consolidated Subsidiaries on such date
(other than loans guaranteed by the Government of the United States of America or any agency
thereof).




          “Consolidated Non-Performing Assets Ratio” means, at any time, the ratio of (a)
Consolidated Non-Performing Assets to (b) Consolidated Net Worth plus Consolidated
Reserve for Credit Losses.




          “Consolidated Reserve for Credit Losses” means, on any date, the consolidated
allowance for loan and lease losses for the Borrower and its Consolidated Subsidiaries on
such date.








 





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          “Consolidated Subsidiary” means, at any date, any Subsidiary of the Borrower
the accounts of which would be consolidated with those of the Borrower in its consolidated
financial statements if such statements were prepared in accordance with GAAP as of such
date.




          “Consolidated Tangible Net Worth” means Consolidated Net Worth less the
book value of goodwill, patents, trademarks, service marks, trade names, copyrights,
charters, franchises, certificates, permits and licenses and any other intangible assets of
the Borrower and its Consolidated Subsidiaries on a consolidated basis.




          “Debt” of any Person means (a) indebtedness of such Person for borrowed money,
(b) obligations of such Person evidenced by bonds, debentures, notes or other similar
instruments, (c) obligations of such Person to pay the deferred purchase price of property
or services (excluding, however, trade accounts payable arising in the ordinary course of
business and not overdue), (d) capital lease obligations of such Person, (e) Debt of others
Guaranteed by such Person, (f) Debt of others secured by a Lien on the property of such
Person, (g) all obligations of such Person to redeem, retire, defease or otherwise make any
payment in respect of shares of capital stock of such Person, (h) all obligations,
contingent or otherwise, of such Person in respect of letters of credit or acceptances
(other than commercial letters of credit in respect of trade accounts payable and not
overdue) and (i) the net liability of such Person under Hedge Agreements.




          “Debt Ratings” means, as of any date of determination, the ratings most
recently published by the Rating Agencies relating to the unsecured, unsupported senior
long-term debt obligations of the Borrower.




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




          “Derivatives Liabilities” means, with respect to any Person, all obligations of
such Person in respect of any Hedge Agreement. The amount outstanding under any Derivative
Liability shall be the total amount of termination or liquidation payments that would be due
at the time if such liabilities were to become due at such time.




          “Dollars” or “$” means lawful money of the United States of America.




          “Double Leverage Ratio” means, at any time, the ratio of (i) the aggregate
investment of the Borrower in capital stock of its Subsidiaries, including its interest in
undistributed earnings and intangibles (determined in accordance with GAAP) of its
Subsidiaries, to (ii) Consolidated Net Worth of the Borrower.




          “Environmental Laws” means any and all present and future Federal, state, local
and foreign laws, rules or regulations, and any orders or decrees, in each case as now or
hereafter in effect, relating to the regulation or protection of human health, safety or the
environment or to emissions, discharges, releases or threatened releases of Hazardous
Materials into the indoor or outdoor environment, including, without limitation,
ambient








 





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air, soil, surface water, ground water, wetlands, land or subsurface strata, or
otherwise relating to the manufacture, processing, distribution, use, treatment, storage,
disposal, transport or handling of Hazardous Materials.




          “Equity Issuance” means (a) any issuance or sale by the Borrower of (i) any of
its capital stock, (ii) any warrants or options exercisable in respect of its capital stock
(other than any capital stock of the Borrower or any warrants or options to purchase any
capital stock of the Borrower that are issued to directors, officers or employees of the
Borrower pursuant to employee benefit plans established in the ordinary course of business,
or any capital stock of the Borrower issued upon the exercise of any such warrants or
options) or (iii) any other security or instrument representing an equity interest (or the
right to obtain any equity interest) in the Borrower or (b) the receipt by the Borrower from
any Person not a shareholder of the Borrower of any capital contribution (whether or not
evidenced by any equity security issued by the recipient of such contribution).




          “ERISA” means the Employee Retirement Income Security Act of 1974, as amended
from time to time, and the regulations promulgated and rulings issued thereunder.




          “ERISA Affiliate” means any trade or business (whether or not incorporated)
that, together with the Borrower, is treated as a single employer under Section 414(b) or
(c) of the Code, or, solely for purposes of Section 302 of ERISA and Section 412 of the
Code, is treated as a single employer under Section 414(m) of the Code.




          “Eurocurrency Liabilities” has the meaning assigned to that term in Regulation
D of the Board of Governors of the Federal Reserve System, as in effect from time to time.




          “Excluded Taxes” means, with respect to the Lender or any other recipient of
any payment to be made by or on account of any obligation of the Borrower hereunder, (a)
income or franchise taxes imposed on (or measured by) its net income by the United States of
America, or by the jurisdiction under the laws of which such recipient is organized or in
which its principal office or its Applicable Lending Office is located, (b) any branch
profits taxes imposed by the United States of America or any similar tax imposed by any
other jurisdiction in which the Borrower is located, and (c) in the case of a Foreign
Lender, any withholding tax that is imposed on amounts payable to such Foreign Lender at the
time such Foreign Lender becomes a party to this Agreement or is attributable to such
Foreign Lender’s failure or inability to comply with Section 2.11(d), except to the extent
that such Foreign Lender’s assignor (if any) was entitled, at the time of assignment, to
receive additional amounts from the Borrower with respect to such withholding tax pursuant
to Section 2.11(a).




          “Events of Default” has the meaning specified in Section 6.01.




          “Federal Funds Rate” means a fluctuating interest rate per annum determined by
the Lender to be equal for each day to the weighted average of the rates on overnight
Federal funds transactions with members of the Federal Reserve System arranged by








 





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Federal funds brokers, as published for such day (or, if such day is not a Business Day, for
the next preceding Business Day) by the Federal Reserve Bank of New York, or, if such rate
is not so published for any Business Day, the average of the quotations for such day on such
transactions received by the Lender from three Federal funds brokers of recognized standing
selected by it.




          “FirstMerit Bank” means FirstMerit Bank, N.A., a national banking association
and a Subsidiary of the Borrower.




          “Foreign Lender” means any Person that becomes a “Lender” hereunder (whether by
assignment or otherwise) that is organized under the laws of a jurisdiction other than that
in which the Borrower is resident for tax purposes. For purposes of this definition, the
United States of America, each State thereof and the District of Columbia shall be deemed to
constitute a single jurisdiction.




          “GAAP” means generally accepted United States accounting principles.




          “Guarantee” by any Person means any obligation, contingent or otherwise, of
such Person directly or indirectly guaranteeing any Debt of any other Person and, without
limiting the generality of the foregoing, any obligation, direct or indirect, contingent or
otherwise, of such Person (i) to purchase or pay (or advance or supply funds for the
purchase or payment of) such Debt (whether arising by virtue of partnership arrangements, by
agreement to keep-well, to purchase assets, goods, securities or services, to take-or-pay,
or to maintain financial statement conditions or otherwise, other than agreements to
purchase goods at an arm’s length price in the ordinary course of business) or (ii) entered
into for the purpose of assuring in any other manner the holder of such Debt of the payment
thereof or to protect such holder against loss in respect thereof (in whole or in part);
provided, that the term Guarantee shall not include endorsements for collection or
deposit in the ordinary course of business. The term “Guarantee” used as a verb has
a corresponding meaning.




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




          “Hedge Agreement” means any rate, basis, commodity, currency, debt or equity
swap, any cap, collar or floor agreement, or any similar agreement entered into for the
purpose of hedging risk.




          “Indemnified Taxes” means Taxes other than Excluded Taxes.




          “Insured Subsidiary” means any insured depositary institution (as defined in 12
U.S.C. §1813(c)(2) or any successor provision, as amended, reenacted or redesignated
from time to time) that is controlled (within the meaning of 12 U.S.C. §1841(a)(2) or
any








 





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successor provision as amended, reenacted or redesignated from time to time) by the
Borrower, including but not limited to FirstMerit Bank.




          “Interest Payment Date” means (a) with respect to any Base Rate Advance, each
Quarterly Date and the Commitment Termination Date and (b) with respect to any LIBO Rate
Advance, the last day of each Interest Period therefore.




          “Interest Period” means, for any LIBO Rate Advance, the period beginning on the
date such LIBO Rate Advance is made, or converted from a Base Rate Advance, or on the last
day of the immediately preceding Interest Period with respect thereto, and ending on the
last day of the period selected by the Borrower pursuant to the provisions below. The
duration of each Interest Period shall be 1, 2 or 3 months as the Borrower may select as
provided in Section 2.03; provided, however, that (i) each Interest Period
that begins 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, (ii) whenever the last
day of any Interest Period would otherwise occur on a day other than a Business Day, the
last day of such Interest Period shall be extended to occur on the next succeeding Business
Day, except that if such extension would cause the last day of such Interest Period to occur
in the next following calendar month, the last day of such Interest Period shall occur on
the next preceding Business Day and (iii) any Interest Period that would otherwise extend
beyond the Commitment Termination Date shall end on the Commitment Termination Date.




          “LIBO Rate” means, with respect to any LIBO Rate Advance, for any Interest
Period, the offered rate for deposits in Dollars of a duration comparable to such Interest
Period appearing on Reuters Screen LIBOR01 Page (or on any successor or substitute page of
such Reuters Screen, or any successor to such Reuters Screen, providing rate quotations
comparable to those currently provided on such page of such Reuters Screen, as determined by
the Lender from time to time, for purposes of providing quotations of interest rates
applicable to Dollar deposits in the London interbank market) as of approximately 3:00 p.m.
(New York City time) on the date three Business Days prior to the commencement of such
Interest Period.




          “LIBO Rate Advance” means, at any time, an Advance which bears interest at a
rate based upon the LIBO Rate plus Applicable Margin.




          “LIBO Rate Reserve Percentage” for any Interest Period for any LIBO Rate
Advance means the effective rate (expressed as a percentage) at which reserve requirements
(including, without limitation, emergency, supplemental and other marginal reserve
requirements) are imposed on the Lender during such Interest Period (or if more than one
such percentage shall be so applicable, the daily average of such percentages for those days
in such Interest Period during which any such percentage shall be so applicable) under
regulations issued from time to time by the Board of Governors of the
Federal Reserve System (or any successor) with respect to liabilities or assets
consisting of or including Eurocurrency Liabilities having a term equal to such Interest
Period.








 





-8-






          “Lien” means any mortgage, lien (statutory or otherwise), pledge or security
interest of any kind.




          “Material Adverse Effect” means a material adverse effect on (i) the business
or condition (financial or otherwise), operations, properties or prospects of the Borrower
or of any Insured Subsidiary, including FirstMerit Bank, or of the Borrower and its
Subsidiaries taken as a whole, (ii) the legality, validity or enforceability of this
Agreement or the Note, or (iii) the ability of the Borrower to perform its obligations under
this Agreement or the Note.




          “Material Debt” means Debt in an aggregate outstanding principal amount of
$100,000 or more.




          “Multiemployer Plan” means a multiemployer plan defined as such in Section
4001(a)(3) of ERISA to which contributions have been made by the Borrower or any ERISA
Affiliate and that is covered by Title IV of ERISA.




          “Note” has the meaning specified in Section 2.05(b).




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




          “Person” means an individual, partnership, corporation (including a business
trust), limited liability company, joint stock company, trust, unincorporated association,
joint venture or other entity, or a government or any political subdivision or agency
thereof.




          “Plan” means an employee benefit or other plan established or maintained by the
Borrower or any ERISA Affiliate and that is covered by Title IV of ERISA, other than a
Multiemployer Plan.




          “Quarterly Date” means the last Business Day of each March, June, September and
December.




          “Rating Agencies” shall mean Standard & Poor’s Ratings Services and Fitch
Ratings or, in each case, any successor nationally recognized statistical rating
organization.




          “Rating Levels” shall mean, on any date of determination, (a) Rating Level 1 if
the Debt Rating is at least equal to “A-”, (b) Rating Level 2 if the Debt Rating is at least
equal to “Baa1” or “BBB+”, but does not fall within Rating Level 1, and otherwise, (c)
Rating Level 3; provided that (i) if the Debt Rating of any Rating Agency is one
level below the Debt Rating of the other Rating Agency, the “Rating Level” will be
determined
based on the higher Rating Level, (ii) if the Debt Rating of any Rating Agency is more
than one level below the Debt Rating of the other Rating Agency, the “Rating Level” will








 





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be
determined based on the Debt Rating one level above the lower Rating Level, and (iii) if and
so long as such a rating is assigned by only one Rating Agency, Rating Level 3 shall be
deemed to apply.




          “SEC” means the Securities and Exchange Commission and any successor thereto.




          “Solvent” means, with respect to any Person on a particular date, that (i) the
fair value of the total assets of such Person is greater than the total amount of the
liabilities, including, without limitation, contingent liabilities, of such Person, (ii) the
present fair saleable value of the assets of such Person is not less than the amount that
will be required to pay the probable liability of such Person on its debts as they become
absolute and matured, (iii) such Person does not intend to, and does not believe that it
will, incur debts or liabilities beyond such Person’s ability to pay such debts and
liabilities as they mature, and (iv) such Person is not engaged in business, and is not
about to engage in business, for which such Person’s property would constitute unreasonably
small capital.




          “Subsidiary” means, with respect to any Person, any corporation, partnership,
limited liability company or other entity of which at least a majority of the Voting Shares
is at the time directly or indirectly owned or controlled by such Person or one or more
Subsidiaries of such Person or by such Person and one or more Subsidiaries of such Person.




          “SunTrust” means SunTrust Bank, a Georgia banking corporation.




          “Taxes” means any and all present or future taxes, levies, imposts, duties,
deductions, charges or withholdings imposed by any governmental authority.




          “Voting Shares” means, at any time, as to any Person, the outstanding
securities of such Person the holders of which are ordinarily, in the absence of
contingencies, entitled to vote for the election of directors (or persons performing similar
functions) of such Person.



     1.02. Types of Advances. The “Type” of an Advance refers to whether it is at the time a
Base Rate Advance or a LIBO Rate Advance.



     SECTION 2. THE ADVANCES.



     2.01. The Commitment. The Lender agrees, on the terms and conditions hereinafter set
forth, to make advances to the Borrower (each, an “Advance”) in Dollars from time to time
on any Business Day during the period from the date hereof until the Commitment Termination Date in
an aggregate principal amount up to but not exceeding $15,000,000 at any one time outstanding (the
“Commitment”).
Within the foregoing limits and subject to the terms and conditions of this Agreement the Borrower
may borrow, prepay and reborrow the amount of the Commitment.








 





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     2.02. Advances. To request an Advance, the Borrower shall give the Lender irrevocable,
written notice of such Advance (i) in the case of a LIBO Rate Advance, not later than 2:00 p.m.
(Eastern Standard Time) on the second Business Day prior to the date of such Advance or (ii) in the
case of a Base Rate Advance, not later than 11:00 a.m. (Eastern Standard Time) on the day of such
Advance. Each such notice shall be by telecopier, telex or cable and shall specify the requested
(i) date of such Advance, which shall be a Business Day, (ii) Type of such Advance, (iii) amount of
such Advance and (iv) in the case of a LIBO Rate Advance, initial Interest Period for such Advance.
Each Advance shall be in a minimum principal amount of $1,000,000. The Lender will make the
proceeds of each Advance available to the Borrower by crediting the amount thereof, in immediately
available funds, by 3:00 p.m. (Eastern Standard Time) in the case of a LIBO Rate Advance or 1:00
p.m. (Eastern Standard Time) in the case of a Base Rate Advance, on the date of such Advance, to
such account of the Borrower in Atlanta, Georgia as the Lender and the Borrower may agree.



     2.03. Interest Elections. Each Advance initially shall be of the Type specified in the
notice of such Advance and, in the case of a LIBO Rate Advance, shall have an initial Interest
Period as specified in such notice. Thereafter, the Borrower may elect to convert such Advance to
the other Type or to continue such Advance as the same Type from one Interest Period to the next,
and, in the case of a LIBO Rate Advance, may elect the duration of Interest Periods therefore, all
as provided in this Section 2.03. The Borrower may elect different options with respect to
different portions of the affected Advance, in which case each such portion shall be considered a
separate Advance (subject to the minimum borrowing amount referred to in Section 2.02). To make an
election pursuant to this Section 2.03, the Borrower shall notify the Lender of such election by
telephone by the time that a notice of Advance would be required under Section 2.02 if the Borrower
were requesting an Advance of the Type resulting from such election to be made on the effective
date of such election. Each such telephonic election shall be irrevocable and shall be confirmed
promptly by hand delivery or telecopy to the Lender of a written interest election request in a
form acceptable to the Lender and signed by the Borrower. Each telephonic and written interest
election request shall specify the following information:




          (i) the Advance to which such interest election request applies and, if different
options are being elected with respect to different portions thereof, the portions thereof
to be allocated to each resulting Advance (in which case the information to be specified
pursuant to clauses (iii) and (iv) of this paragraph shall be specified for each resulting
Advance);




          (ii) the effective date of the election made pursuant to such interest election
request, which shall be a Business Day;




          (iii) whether the resulting Advance is to be a Base Rate Advance or a LIBO Rate
Advance, or a specified combination thereof; and




          (iv) if the resulting Advance is a LIBO Rate Advance, the Interest Period to be
applicable thereto after giving effect to such election, which shall be a period
contemplated by the definition of the term “Interest Period”.








 





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If any such interest election request requests a LIBO Rate Advance but does not specify an Interest
Period, then the Borrower shall be deemed to have selected an Interest Period of one month’s
duration. If the Borrower fails to deliver a timely and complete interest election request with
respect to a LIBO Rate Advance prior to the end of the Interest Period applicable thereto, then,
unless such Advance is repaid as provided herein, at the end of such Interest Period such Advance
shall be converted to a Base Rate Advance. Notwithstanding any contrary provision hereof, if an
Event of Default has occurred and is continuing and the Lender so notifies the Borrower, then, so
long as an Event of Default is continuing (i) no outstanding Advance may be converted to or
continued (beyond the end of the then current Interest Period) as a LIBO Rate Advance and (ii)
unless repaid, each LIBO Rate Advance shall be converted to a Base Rate Advance at the end of the
Interest Period applicable thereto.




     2.04. Termination and Reduction of the Commitment.



          (a) Unless previously terminated, the Commitment shall automatically terminate on the
Commitment Termination Date.




          (b) The Borrower shall have the right to terminate or reduce the unused Commitment at any
time or from time to time; provided, that (i) the Borrower shall give irrevocable, written
notice of each such termination or reduction to the Lender at least three Business Days before such
termination or reduction, (ii) each partial reduction shall be in an aggregate amount of not less
than $1,000,000 and (iii) the Borrower shall not terminate or reduce the Commitment if, after
giving effect to any concurrent prepayment of the Advances pursuant to Section 2.05, the aggregate
outstanding principal amount of the Advances would exceed the Commitment.




          (c) The Commitment once terminated or reduced under this Section 2.04 may not be reinstated.




     2.05. Repayment of Advances; Note.



          (a) The Borrower promises to repay to the Lender the full outstanding principal amount of the
Advances on the Commitment Termination Date.




          (b) The Advances shall be evidenced by a single promissory note of the Borrower (the
“Note”) in substantially the form of Exhibit A hereto, dated the date hereof, payable to
the Lender in a principal amount equal to the amount of the Commitment and otherwise duly
completed. The Lender is hereby authorized by the Borrower to endorse on the schedule (or a
continuation thereof) attached to the Note the date, amount and Type of and Interest Period (if
any) for each Advance made by the Lender to the Borrower hereunder and the date and the amount of
each payment or prepayment of principal of such Advance received by the Lender; provided,
that any failure by the Lender to make any such endorsement shall not affect the obligations of the
Borrower under the Note or hereunder.









 





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     2.06. Prepayment of Advances.



          (a) The Borrower shall have the right at any time and from time to time to prepay any Advance
in whole or in part, subject to the requirements of this Section 2.06.




          (b) The Borrower shall notify the Lender by telephone (confirmed by telecopy) of any optional
prepayment hereunder (i) in the case of prepayment of a LIBO Rate Advance, not later than 2:00 p.m.
(Eastern Standard Time) two Business Days before the date of prepayment or (ii) in the case of
prepayment of an Base Rate Advance, not later than 11:00 a.m. (Eastern Standard Time) on the date
of prepayment. Each such notice shall be irrevocable and shall specify the prepayment date and the
principal amount of each Advance or portion thereof to be prepaid. Each partial prepayment of any
Advance shall be in an amount not less than $1,000,000 and shall be applied to prepay any
outstanding Base Rate Advances in full before any LIBO Rate Advances. Prepayments shall be
accompanied by accrued interest to the extent required by Section 2.07.




     2.07. Interest; Fees.



          (a) The Borrower agrees to pay interest on each Base Rate Advance at a rate per annum equal
to the Base Rate plus Applicable Margin for Base Rate Advances.




          (b) The Borrower agrees to pay interest on each LIBO Rate Advance in respect of each Interest
Period therefor at a rate per annum equal to the LIBO Rate for such Interest Period plus
Applicable Margin for LIBO Rate Advances.




          (c) Notwithstanding the foregoing, if any principal of or interest on any Advance or any fee
or other amount whatsoever payable by the Borrower hereunder is not paid when due, whether at
stated maturity, upon acceleration or otherwise, such overdue amount shall bear interest, after as
well as before judgment, at a rate per annum equal to (i) in the case of overdue principal of any
Advance, 2% per annum plus the rate otherwise applicable to such Advance as provided above
or (ii) in the case of any other amount, 2% per annum above the Base Rate from time to time.




          (d) Accrued interest on each Advance shall be payable in arrears on each Interest Payment
Date for such Advance and upon termination or expiry of the Commitment; provided, that (i)
interest accrued pursuant to paragraph (c) of this Section 2.07 shall be payable on demand, (ii) in
the event of any repayment or prepayment of any Advance, accrued interest on the principal amount
repaid or prepaid shall be payable on the date of such repayment or prepayment and (iii) in the
event of any conversion of any LIBO Rate Advance to a Base Rate Advance prior to the end of the
then current Interest Period therefore, accrued interest on such Advance shall be payable on the
effective date of such conversion.




          (e) The Borrower agrees to pay to the Lender, so long as the Lender shall be required under
regulations of the Board of Governors of the Federal Reserve System to maintain reserves with
respect to liabilities or assets consisting of or including Eurocurrency Liabilities (or







 





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the equivalent), additional interest on the unpaid principal amount of each LIBO Rate Advance, from the
date of such LIBO Rate Advance until such principal amount is paid in full, at an interest rate per
annum equal at all times to the remainder obtained by subtracting (i) the LIBO Rate for the then
current Interest Period for such LIBO Rate Advance from (ii) the rate obtained by dividing such
LIBO Rate by a percentage equal to 100% minus the LIBO Rate Reserve Percentage for such
Interest Period, payable on each date on which interest is payable on such LIBO Rate Advance. A
certificate of the Lender setting forth the amount to which the Lender is then entitled under this
Section 2.07(e) shall be conclusive and binding on the Borrower in the absence of manifest error.




          (f) The Borrower agrees to pay to the Lender a facility fee at a rate per annum equal to the
Applicable Facility Fee Rate, computed on the daily average amount of the Commitment, whether or
not utilized, such fee to be payable on each Quarterly Date and on the date of the termination or
expiry of the Commitment.




          (g) The Borrower agrees to pay to the Lender a utilization fee at a rate per annum equal to
the Applicable Utilization Fee Rate on the aggregate outstanding principal amount of the Advances
for each day that the aggregate outstanding principal amount of the Advances exceeds an amount
equal to 50% of the Commitment, such fee to be payable on each day on which interest is payable
hereunder.




          (h) All computations of interest based on the Base Rate shall be made on the basis of a year
of 365 or 366 days, as the case may be, and all computations of interest based on the LIBO Rate or
the Federal Funds Rate and computations of facility fee and utilization fee and of interest
pursuant to Section 2.07(e) shall be made on the basis of a year of 360 days, in each case for the
actual number of days (including the first day but excluding the last day) occurring in the period
for which such interest is payable.




     2.08. Alternate Rate of Interest. If prior to the commencement of any Interest Period for
a LIBO Rate Advance the Lender determines (which determination shall be conclusive absent manifest
error) that:



          (a) adequate and reasonable means do not exist for ascertaining the LIBO Rate for such
Interest Period, or




          (b) the LIBO Rate for such Interest Period will not adequately and fairly reflect the
cost to the Lender of making or maintaining such Advance for such Interest Period,



then the Lender shall give notice thereof to the Borrower by telephone or telecopy as promptly as
practicable thereafter and, until the Lender notifies the Borrower that the circumstances giving
rise to such notice no longer exist, (i) any interest election request that requests the conversion
of any Advance to, or continuation of any Advance as, a LIBO Rate Advance shall be ineffective (and
any outstanding LIBO Rate Advance shall be converted to a Base Rate Advance at the end
of the current Interest Period therefore) and (ii) if any notice of Advance requests a LIBO Rate
Advance, such Advance shall be made as a Base Rate Advance.









 





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     2.09. Increased Costs.



          (a) If, due to either (i) the introduction of or any change (other than any change by way of
imposition or increase of reserve requirements included in the LIBO Rate Reserve Percentage) in or
in the interpretation of (to the extent any such introduction or change occurs after the date
hereof) any law or regulation or (ii) the compliance with any guideline or request of any central
bank or other governmental authority adopted or made after the date hereof (whether or not having
the force of law), there shall be any increase in the cost to the Lender of agreeing to make or
making, funding or maintaining LIBO Rate Advances, the Borrower shall from time to time, within 10
days after delivery by the Lender to the Borrower of a certificate as to the amount of such
increased cost, pay to the Lender the amount of the increased costs set forth in such certificate
(which certificate shall be conclusive and binding on the Borrower in the absence of manifest
error).




          (b) If the Lender determines that compliance with any law or regulation enacted or introduced
after the date hereof or any guideline or request of any central bank or other governmental
authority adopted or made after the date hereof (whether or not having the force of law) affects or
would affect the amount of capital required or expected to be maintained by the Lender or any
corporation controlling the Lender and that the amount of such capital is increased by or based
upon the existence of the Lender’s Commitment and other commitments of this type, or the Advances,
then, the Borrower shall pay to the Lender, within 10 days after delivery by the Lender to the
Borrower of a certificate as to the amount required to compensate the Lender or such controlling
corporation therefore, such amount (a certificate of the Lender as to such amount to be conclusive
and binding on the Borrower in the absence of manifest error).




          (c) The Borrower shall not be required to compensate the Lender pursuant to this Section 2.09
for any increased costs incurred more than 180 days prior to the date that the Lender notifies the
Borrower of the change in law or regulation (or in the interpretation thereof) giving rise to such
increased costs and of the Lender’s intention to claim compensation therefore (except that, if the
change giving rise to such increased costs is retroactive, then the 180-day period referred to
above shall be extended to include the period of retroactive effect thereof).




     2.10. Break Funding. In the event of (a) the payment of any principal of any LIBO Rate
Advance other than on the last day of an Interest Period therefore, (b) the conversion of any LIBO
Rate Advance to a Base Rate Advance other than on the last day of an Interest Period therefore or
(c) the failure to borrow, convert, continue or prepay any LIBO Rate Advance on the date specified
in any notice delivered pursuant hereto, then, in any such event, the Borrower shall compensate the
Lender for the loss, cost and expense attributable to such event, which shall be deemed to include
an amount determined by the Lender to be equal to the excess, if any, of (i) the LIBO Rate for the
balance of such Interest Period (or for the Interest Period that would have commenced on such
borrowing, conversion, continuation or prepayment), over (ii) the amount of interest that the
Lender would earn on such principal amount for the balance of such Interest Period (or for such
Interest Period) if the Lender were to invest such principal amount for such period at the interest
rate that would be bid by the Lender (or an Affiliate of the Lender) for Dollar deposits from other
banks in the London interbank market at the commencement of such period. A certificate of the
Lender setting forth any








 





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amount or amounts that the Lender is entitled to receive pursuant to this
Section 2.10 shall be delivered to the Borrower and shall be conclusive and binding on the Borrower
in the absence of manifest error. The Borrower shall pay the Lender the amount shown as due on any
such certificate within 10 days after receipt thereof.



     2.11. Taxes.



          (a) Any and all payments by or on account of any obligation of the Borrower hereunder shall
be made free and clear of and without deduction for any Indemnified Taxes; provided, that
if the Borrower shall be required to deduct any Indemnified Taxes by law, then (i) the sum payable
shall be increased as necessary so that after making all required deductions the Lender receives an
amount equal to the sum it would have received had no such deductions been made, (ii) the Borrower
shall make such deductions and (iii) the Borrower shall pay the full amount deducted to the
relevant governmental authority in accordance with applicable law.




          (b) The Borrower shall indemnify the Lender, within 10 days after written demand therefore,
for the full amount of any Indemnified Taxes paid by the Lender and any penalties by law, interest
and reasonable expenses arising therefrom or with respect thereto, whether or not such Indemnified
Taxes by law were correctly or legally imposed or asserted by the relevant governmental authority.
A certificate as to the amount of such payment or liability delivered to the Borrower by the Lender
shall be conclusive absent manifest error.




          (c) As soon as practicable after any payment of any taxes paid by law by the Borrower to a
governmental authority, the Borrower shall deliver to the Lender the original or a certified copy
of a receipt issued by such governmental authority evidencing such payment, a copy of the return
reporting such payment or other evidence of such payment reasonably satisfactory to the Lender.




          (d) Foreign Lenders. Any Foreign Lender that is entitled to an exemption from or
reduction of withholding tax under the law of the jurisdiction in which the Borrower is located, or
any treaty to which such jurisdiction is a party, with respect to payments under this Agreement
shall deliver to the Borrower, at the time or times prescribed by applicable law or reasonably
requested by the Borrower, such properly completed and executed documentation prescribed by
applicable law as will permit such payments to be made without withholding or at a reduced rate.




     2.12. Payments Generally.



          (a) The Borrower shall make each payment required to be made by it hereunder (whether of
principal, interest or fees, or under Section 2.09, 2.10 or 2.11, or otherwise) prior to 12:00 noon
(Eastern Standard Time) on the date when due, in Dollars and immediately available funds, without
set-off or counterclaim. Any amounts received after such time on any date may,
in the discretion of the Lender, be deemed to have been received on the next succeeding
Business Day
for purposes of calculating interest thereon. All such payments shall be made to the
Lender at its offices specified herein. If any payment hereunder shall be due on a day that is not
a Business Day, the date for payment shall be extended to the next succeeding Business Day







 





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and, in
the case of any payment accruing interest, interest thereon shall be payable for the period of such
extension.




          (b) If at any time insufficient funds are received by and available to the Lender to pay
fully all amounts of principal, interest and fees then due hereunder, such funds shall be applied
first, to pay interest then due hereunder, then to pay fees and other amounts (other than
principal) hereunder, then to pay principal due hereunder.




          (c) The Borrower agrees that at any time after the occurrence and during the continuance of
an Event of Default, in addition to (and without limitation of) any right of set-off, banker’s
lien, or counterclaim and other rights and remedies the Lender may otherwise have, the Lender shall
be entitled, at its option, to offset deposits held by it or any of its Affiliates (whether general
or special, time or demand, provisional or final, in whatever currency, whether or not then due)
other than those deposits which are specifically pledged to secure separate obligations of the
Borrower, for the account of, and other indebtedness owing by it or any of its Affiliates to, the
Borrower at any of its offices, in Dollars or in any other currency, against any principal of or
interest on any of the Advances, or any other obligation of the Borrower hereunder, which is not
paid when due (regardless of whether such balances are then due to the Borrower), in which case it
shall promptly notify the Borrower; provided, that failure to give such notice shall not
affect the validity thereof.




     2.13. Designation of a Different Applicable Lending Office. If Lender requests
compensation under Section 2.09, or requires the Borrower to pay any additional amount to the
Lender or any governmental authority for the account of the Lender pursuant to Section 2.11, then
the Lender shall use reasonable efforts to designate a different Applicable Lending Office for
funding or booking its Advances hereunder or to assign its rights and obligations hereunder to
another of its offices, branches or affiliates, if, in the judgment of the Lender, such designation
or assignment (i) would eliminate or reduce amounts payable pursuant to Section 2.09 or 2.11, as
the case may be, in the future and (ii) would not subject the Lender to any unreimbursed cost or
expense and would not otherwise be disadvantageous to the Lender. The Borrower hereby agrees to
pay all reasonable costs and expenses incurred by the Lender in connection with any such
designation or assignment.



     SECTION 3. CONDITIONS OF LENDING.



     3.01. Condition Precedent to Initial Advance. The obligation of the Lender to make its
initial Advance is subject to the condition precedent that the Lender shall have confirmed to the
Borrower in writing that it has received the following documents, each dated the Closing Date and
in form and substance satisfactory to the Lender:




          (a) This Agreement and the Note, each as duly executed and delivered by the Borrower.




          (b) Certified copies and of all documents evidencing the authorization of this
Agreement and Note (including, without limitation, certified copies of the certificate of
incorporation and bylaws of the Borrower and resolutions of the Board of Directors of the








 





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Borrower authorizing the execution, delivery and performance of the Agreement, the Note and
all other documents executed in connection herewith).




          (c) Certificate of existence or good standing of (i) Borrower from the Secretary of
State of the State of Ohio and each other jurisdiction where the Borrower is required to be
qualified to do business as a foreign corporation and (ii) FirstMerit Bank from the Office
of the Comptroller of the Currency.




          (d) A certificate of the Borrower certifying the names and true signatures of the
officers of the Borrower authorized to sign this Agreement and the Note and any other
documents to be delivered hereunder.




          (e) A favorable written opinion of Vorys, Sater, Seymour and Pease LLP, as to such
matters relating to this Agreement and the Note, as the Lender may require.




          (f) Evidence of payment of all fees and expenses (including reasonable fees and
expenses of counsel to the Lender) then payable by the Borrower in connection with this
Agreement.




          (g) A duly executed funds disbursement agreement.



     3.02. Conditions Precedent to Each Advance. The obligation of the Lender to make each
Advance (including, without limitation, the initial Advance) shall be subject to its receipt of a
request for Advance delivered in accordance with Section 2.02 and the further conditions precedent
that on the date of such Advance (a) the representations and warranties set forth in Section 4
shall be true and correct on and as of the date of such Advance, before and after giving effect to
such Advance and to the application of the proceeds thereof, as though made on and as of such date,
(b) no Default shall have occurred and be continuing, or would result from such Advance or from the
application of the proceeds thereof.



     SECTION 4. REPRESENTATIONS AND WARRANTIES.



     4.01. The Borrower represents and warrants to the Lender that:



          (a) The Borrower and each of its Subsidiaries (i) is duly organized, validly existing and in
good standing under the laws of the jurisdiction of its organization, (ii) has all requisite power
and authority to carry on its business as now conducted, and (iii) is duly qualified to do
business, and is in good standing, in each jurisdiction where such qualification is required,
except where a failure to be so qualified could not reasonably be expected to result in a Material
Adverse Effect.




          (b) The execution, delivery and performance of this Agreement and the Note by the Borrower
are within the Borrower’s corporate powers and have been duly authorized by all necessary corporate
action. This Agreement has been duly executed and delivered by the Borrower and constitutes, and
the Note when duly executed and delivered by the Borrower for







 





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value will constitute, a legal, valid
and binding obligation of the Borrower, enforceable in accordance with their terms, except as such
enforceability may be limited by (a) bankruptcy, insolvency, reorganization, moratorium or similar
laws of general applicability affecting the enforcement of creditors’ rights and (b) the
application of general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law).




          (c) The execution, delivery and performance of this Agreement and the Note by the Borrower
(i) do not require any consent or approval of, registration or filing with, or any other action by,
any governmental authority, (ii) will not violate any applicable law or regulation or the
organizational documents of the Borrower and (iii) will not violate or result in a default under
any contract, indenture, agreement or other instrument binding upon the Borrower.




          (d) The Borrower has heretofore furnished to the Lender its consolidated balance sheet and
consolidated statements of income, stockholders’ equity and cash flows of the Borrower and its
Consolidated Subsidiaries as of and for the fiscal year ended December 31, 2006, with the opinion
thereon of PricewaterhouseCoopers. Such financial statements present fairly, in all material
respects, the consolidated financial position and results of operations and cash flows of the
Borrower and its Consolidated Subsidiaries as of such date and for such fiscal year in accordance
with GAAP. Since December 31, 2006, no event or circumstance has occurred that has had a Material
Adverse Effect.




          (e) There are no actions, suits, investigations or proceedings by or before any arbitrator or
governmental authority now pending against or, to the knowledge of the Borrower, threatened against
or affecting the Borrower or any of its Subsidiaries which (i) if adversely determined, could
reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect or (ii)
involve this Agreement or the transactions contemplated hereby.




          (f) Each of the Borrower and its Subsidiaries is in compliance with all applicable laws
(including without limitation Environmental Laws, tax laws and ERISA), regulations and orders of
any governmental authority applicable to it or its property and all indentures, agreements and
other instruments binding upon it or its property, except where the failure to do so, individually
or in the aggregate, could not reasonably be expected to have a Material Adverse Effect.




          (g) The Borrower is not an “investment company” as defined in, or subject to regulation
under, the Investment Company Act of 1940, as amended. The Borrower is a “bank holding company”
within the meaning of the Bank Holding Company Act of 1956, as amended.




          (h) No part of the proceeds of any Advance will be used for the purpose, whether immediate,
incidental or ultimate, of buying or carrying any margin stock within the meaning of Regulation U
of the Board of Governors of the Federal Reserve System.




          (i) The Borrower is and, immediately after giving effect to each Advance and the use of
proceeds thereof, will be Solvent.










 





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          (j) The Borrower is in compliance with Sections 302 and 906 of the Sarbanes-Oxley Act and the
applicable rules and regulations under the United States Securities Exchange Act of 1934, as
amended.




          (k) No Insured Subsidiary, including but not limited to FirstMerit Bank, has violated any
applicable regulatory restrictions on dividends, and no Bank Regulatory Authority has taken any
action to restrict the payment of dividends by any Insured Subsidiary.




          (l) Neither the Borrower nor any Subsidiary is under investigation by, or is operating under
any restrictions (excluding any restrictions on the payment of dividends referenced in subsection
(k) above and the requirements imposed on FirstMerit Bank referenced in subsection (o) below)
imposed by or agreed to with, any Bank Regulatory Authority, other than routine examinations by
such Bank Regulatory Authority.




          (m) On the Closing Date, both the Borrower and each Insured Subsidiary have been, or are
deemed to have been, notified by the appropriate Bank Regulatory Authority having regulatory
authority over each of them that each of them is “well capitalized”, as determined in accordance
with any regulations established by such Bank Regulatory Authority.




          (n) The deposits of FirstMerit Bank and each other Insured Subsidiary that is an “insured
depository institution” (within the meaning of § 12 U. S. C. 1831(c)) are insured by the FDIC and
no act has occurred that would adversely affect the status of such Insured Subsidiary as an FDIC
insured bank.




          (o) FirstMerit Bank has complied with all requirements imposed upon it pursuant to the
Consent Order within the time limitations described therein, and neither Borrower nor FirstMerit
Bank has received any notice or other written communication asserting FirstMerit Bank’s
noncompliance with the Consent Order.




     SECTION 5. COVENANTS.



     5.01. Covenants. So long as any principal of or interest on any Advance or any other
amount payable hereunder or under the Note remains outstanding or the Commitment remains in effect,
the Borrower covenants and agrees that:



          (a) (i) The Borrower (A) will preserve and maintain, and will cause FirstMerit
Bank and each other Insured Subsidiary to preserve and maintain, its corporate existence,
(B) will cause each of its Subsidiaries other than FirstMerit Bank to preserve and maintain
its corporate existence, except for any non-compliance which could not (either individually
or in the aggregate) reasonably be expected to have a Material Adverse Effect (provided that
nothing in this Section 5.01(a) shall prohibit any transaction not prohibited by Section 5.01(g),
and (C) will, and will cause each of its Subsidiaries to, comply with all applicable laws,
statutes, rules, regulations and orders, including without limitation the Consent Order and all
applicable Environmental Laws, tax laws and ERISA, except for any non-compliance which could not
(either individually or in the aggregate) reasonably be expected to have a Material Adverse Effect.












 




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          (b) The Borrower will, and will cause each of its Subsidiaries to, pay and discharge all
taxes, assessments and other governmental charges imposed upon it and its property or any part
thereof, or upon the income or profits therefrom, as well as all claims for labor, materials or
supplies which if unpaid might by law become a lien or charge upon any property of the Borrower or
such Subsidiary, except (i) such items as are being contested in good faith by appropriate
proceedings and as to which appropriate reserves are being maintained and (ii) items the
non-payment of which could not (either individually or in the aggregate) reasonably be expected to
have a Material Adverse Effect.




          (c) The Borrower will, and will cause each of its Subsidiaries to, keep adequate records and
books of account, in which complete entries will be made in accordance with GAAP, and permit
representatives of the Lender, during normal business hours, to examine, copy and make extracts
from its books and records, to inspect any of its property, and to discuss its business and affairs
with their officers, all to the extent reasonably requested by the Lender, and subject to normal
confidentiality requirements.




          (d) The Borrower will, and will cause each of its Subsidiaries to, maintain insurance with
financially sound and reputable insurance companies, and with respect to property and risks of a
character usually maintained by corporations engaged in the same or similar business similarly
situated, against loss, damage and liability of the kinds and in the amounts customarily maintained
by such corporations.




          (e) The Borrower will furnish to the Lender:





     (i) as soon as available and in any event within 90 days after the end of each fiscal
year of the Borrower, the consolidated balance sheet of the Borrower and its Consolidated
Subsidiaries as at the end of such year and the consolidated statements of income and cash
flows of the Borrower and its Consolidated Subsidiaries for such year, with the unqualified
opinion thereon of a certified independent public accountant (it being understood that the
foregoing delivery requirement shall be satisfied by the filing of the Borrower’s Report on
Form 10-K with the SEC);




     (ii) as soon as available and in any event within 45 days after the end of each fiscal
quarter of the Borrower, the consolidated balance sheet and the consolidated statements of
income, stockholders’ equity and cash flows of the Borrower and its Consolidated
Subsidiaries as of the end of such quarter, certified by a senior financial officer of the
Borrower, setting forth in each case in comparative form the corresponding figures for the
corresponding portion of the previous fiscal year (it being understood that the foregoing
delivery requirement shall be satisfied by the Borrower’s filing the Borrower’s Report on
Form 10-Q with the SEC);




     (iii) together with each set of financial statements delivered under clauses (i) and
(ii) a compliance certificate signed by a senior financial officer of the Borrower
confirming compliance with the covenants in Section 5.01(k), in reasonable detail;












 





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     (iv) promptly, notice of the filing of all registration statements (excluding exhibits
to such registration statements, and other than registration statements filed on Form S-8 or
any successor form) and regular periodic reports filed on Form 10-K, Form 10-Q or Form 8-K
(or any successor form), if any, that the Borrower shall have filed with the SEC or any
national securities exchange (it being understood that the foregoing delivery requirement
shall be satisfied by the Borrower’s filing of the referenced reports with the SEC,
provided that the Borrower will promptly notify the Lender of such filing);




     (v) promptly upon their becoming available, the (A) “Consolidated Reports of Condition
and Income” (FFIEC Form 031 or 041 or any successor form of the Federal Financial
Institutions Examination Council) of any Insured Subsidiary; (B) “Parent Company Only
Financial Statements for Bank Holding Companies” (report no. FR Y-9LP or any successor form
of the Federal Reserve System) of the Borrower; and (C) “Consolidated Financial Statements
for Bank Holding Companies” (report no. FR Y-9C or any successor form of the Federal Reserve
System) of the Borrower (it being understood that the foregoing delivery requirement shall
be satisfied by the Borrower’s filing of the referenced report with the Federal Reserve,
provided that the Borrower will promptly notify the Lender of such filing);




     (vi) promptly upon the mailing thereof to the shareholders of the Borrower generally,
copies of all financial statements, reports and proxy statements so mailed, to the extent
not otherwise made available;




     (vii) as soon as possible and in any event within five Business Days, written notice
by the chief financial officer of the Borrower setting forth details of any of the
following, including the action which the Borrower has taken and proposes to take with
respect thereto: (A) the occurrence of a Default; (B) the filing or commencement of any
action, suit or proceeding by or before any arbitrator or governmental authority against or,
to the knowledge of the Borrower, affecting the Borrower or any Subsidiary which, if
adversely determined, could reasonably be expected to result in a Material Adverse Effect;
(C) any investigation of the Borrower or any Subsidiary by any Bank Regulatory Authority
having regulatory authority over the Borrower or any such Subsidiary (other than routine
examinations of the Borrower and/or any such Subsidiary); (D) the issuance of any cease and
desist order, written agreement, cancellation of insurance or other public or enforcement
action by the FDIC or other Bank Regulatory Authority having regulatory authority over the
Borrower or any Subsidiary; or (E) the issuance of any memorandum of understanding or
proposed disciplinary action by or from any Bank Regulatory Authority having regulatory
authority over the Borrower or any Subsidiary, to the extent that the Borrower or any such
Subsidiary is permitted to disclose such information (provided that the Borrower shall take
all reasonable efforts to obtain any necessary regulatory consents); and




     (viii) promptly following any request therefor, such other information as to the
condition or operations, financial or otherwise, of the Borrower, FirstMerit Bank and their
Subsidiaries as the Lender may from time to time reasonably request.












 





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          (f) The Borrower will use the proceeds of the Advances solely for its general corporate
purposes (in compliance with all applicable legal and regulatory requirements).




          (g) The Borrower will not merge or consolidate with or into any other Person or convey,
transfer or lease all or substantially all of its property, assets or revenues in a single
transaction or series of transactions to any Person, provided that nothing herein shall
prohibit any merger of any other Person into the Borrower so long as the Borrower is the continuing
or surviving corporation and at the time thereof, and after giving effect thereto, no Default shall
have occurred and be continuing, including but not limited to a Change of Control.




          (h) The Borrower will not, nor will it permit any of its Subsidiaries to, create, incur,
assume or suffer to exist any Lien upon any of its property, assets or revenues, in each case
whether now owned or hereafter acquired (including, without limitation in the case of the Borrower,
the capital stock of any Insured Subsidiary), except:





     (i) Liens imposed by any governmental authority for Taxes, assessments or charges not
yet due or that are being contested in good faith and by appropriate proceedings if, unless
the amount thereof is not material with respect to it or its financial condition, adequate
reserves with respect thereto are maintained on the books of the Borrower or its Subsidiary,
as the case may be, in accordance with GAAP;




     (ii) carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s or other like
Liens arising in the ordinary course of business that are not overdue for a period of more
than 30 days or that are being contested in good faith and by appropriate proceedings and
Liens securing judgments but only to the extent for an amount and for a period not resulting
in an Event of Default under Section 6.01(f) hereof;




     (iii) pledges or deposits under worker’s compensation, unemployment insurance and
other social security legislation;




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




     (v) easements, rights-of-way, restrictions and other similar encumbrances incurred in
the ordinary course of business and encumbrances consisting of zoning restrictions,
easements, licenses, restrictions on the use of property or minor imperfections in title
thereto that, in the aggregate, are not material in amount, and that do not in any case
materially detract from the value of the property subject thereto or interfere with the
ordinary conduct of the business of the Borrower or any Subsidiary;




     (vi) Liens arising under escrows, trusts, custodianships, separate accounts, funds
withheld procedures, and similar deposits, arrangements, or agreements established with
respect to insurance policies, annuities, guaranteed investment contracts and similar
products underwritten by, or reinsurance agreements entered into by, any Insurance
Subsidiary in the ordinary course of business;












 





-23-


     (vii) Liens on property of any corporation that becomes a Subsidiary of the Borrower
after the date hereof; provided, that such Liens are in existence at the time such
corporation becomes a Subsidiary of the Borrower and were not created in anticipation
thereof;




     (viii) Liens upon real and/or tangible personal property acquired after the date
hereof (by purchase, construction or otherwise) by the Borrower or any Subsidiary, each of
which Liens either (A) existed on such property before the time of its acquisition and was
not created in anticipation thereof or (B) was created solely for the purpose of securing
Debt representing, or incurred to finance, refinance or refund, the cost (including the cost
of construction) of such property; provided, that (i) no such Lien shall extend to
or cover any property of the Borrower or such Subsidiary other than the property so acquired
and improvements thereon and (ii) the principal amount of Debt secured by any such Lien
shall at no time exceed 80% of the fair market value (as determined in good faith by a
senior financial officer of the Borrower) of such property at the time it was acquired (by
purchase, construction or otherwise);




     (ix) judgment and other similar Liens arising in connection with court proceedings,
provided, that the execution or other enforcement of such judgment or other similar
Lien is effectively stayed and the claims secured thereby are being actively contested in
good faith and by appropriate proceedings (without prejudice to Section 6.01(f));




     (x) rights of lessors under capitalized leases;




     (xi) Liens incurred in connection with repurchase agreements or in connection with
asset securitizations and Liens granted to a Federal Reserve Bank or a Federal Home Loan
Bank to secure advances or other transactions incidental to the banking business of the
Borrower or any Subsidiary, including loans to meet liquidity requirements; and




     (xii) Liens securing obligations of a Subsidiary to the Borrower or another
Subsidiary; and




     (xiii) Liens on cash and Cash Equivalents securing Derivative Liabilities;
provided that the aggregate amount of cash and Cash Equivalents subject to such
Liens may at no time exceed the greater of 10% of Consolidated Tangible Net Worth and 1% of
the consolidated total assets of the Borrower and its Subsidiaries.



          (i) The Borrower will not, nor will it permit any of its Subsidiaries to, sell, lease or
otherwise transfer any property to, or purchase, lease or otherwise acquire any property from, or
otherwise engage in any other transactions with, any of its Affiliates, except transactions in the
ordinary course of business at prices and on terms and conditions not less favorable to the
Borrower or such Subsidiary than could be obtained on an arm’s-length basis from unrelated third
parties.













 





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          (j) The Borrower will not create, incur or suffer to exist any Debt for or in respect of
borrowed money other than (i) Debt under this Agreement and (ii) other Debt for or in respect of
borrowed money in an aggregate principal amount at any one time outstanding not exceeding
$400,000,000.




          (k) The Borrower will not:





     (i) permit Consolidated Tangible Net Worth on any date to be less than the sum of (a)
$650,000,000 plus (b) 25% of the consolidated net income for each fiscal quarter of
the Company from and including the last fiscal quarter in 2006 to and including the fiscal
quarter ending on (or most recently ended prior to) such date; provided that, if
there is a consolidated net loss for any such fiscal quarter, consolidated net income for
such fiscal quarter shall be deemed to be zero;




     (ii) permit the Double Leverage Ratio at any time to exceed 1.10 to 1.00; or




     (iii) permit the Consolidated Non-Performing Assets Ratio at any time to exceed .125
to 1.00.



          (l) The Borrower will, and will cause each Insured Subsidiary to, maintain at all times such
amount of capital as may be prescribed by the Board of Governors of the Federal Reserve System or
the Comptroller of the Currency, as the case may be, from time to time, whether by regulation,
agreement or order, and shall at all times ensure that each Insured Subsidiary shall be “well
capitalized” within the meaning of 12 U.S.C. §1831o, as amended, reenacted or redesignated from
time to time.




          (m) The deposits of each Insured Subsidiary will at all times by insured by the Federal
Deposit Insurance Corporation.




          (n) Should the Borrower, while this Agreement is in effect or the Note remains unpaid,
issue any Debt pursuant to a loan agreement, credit agreement, note purchase agreement, indenture
or other similar instrument, which instrument includes covenants, warranties, representations or
defaults, or events of default (or any other type of restriction which would have the practical
effect of any of the foregoing, including without limitation, any “put” or mandatory prepayment of
such Debt) other than those set forth in this Agreement or in the Note, the Borrower shall promptly
so notify the Lender and, if the Lender shall so request by written notice to the Borrower (after a
determination has been made by the Lender that any of the above-referenced documents or instruments
contain any provisions, which either individually or in the aggregate, are more favorable than any
of the provisions set forth herein), the Borrower and the Lender shall promptly amend this
Agreement to incorporate some or all of such provisions, in the discretion of the Bank, into this
Agreement and, to the extent necessary and reasonably desirable to the Bank, into the Note, all at
the election of the Bank.”













 






-25-


     SECTION 6. EVENTS OF DEFAULT.



     6.01. Events of Default. If any of the following events (“Events of Default”)
shall occur and be continuing:



          (a) The Borrower shall fail to pay any principal of any Advance when the same becomes due and
payable; or the Borrower shall fail to pay any interest on any Advance or any fee or other amount
payable hereunder or under the Note when due and such failure remains unremedied for three Business
Days; or




          (b) Any representation or warranty made by the Borrower herein or in any certificate or other
document delivered by it in connection with this Agreement shall prove to have been incorrect in
any material respect when made or deemed made; or




          (c) (i) The Borrower shall fail to perform or observe any term or covenant contained in
Section 5.01(a), 5.01(e)(vii), 5.01(f), 5.01(g), 5.01(h), 5.01(k) or 5.01(l), or (ii) the Borrower
shall fail to perform or observe any other term or covenant in this Agreement on its part to be
performed or observed and such default under this clause (ii) shall continue for 30 days or more;
or




          (d) (i) The Borrower or any of its Subsidiaries shall fail to pay when due any principal of
or premium or interest on any Material Debt, and such failure shall continue after the applicable
grace period, if any, specified in the agreement or instrument creating or evidencing the same or
(ii) any other event shall occur or condition shall exist under any loan agreement, credit
agreement, indenture or other agreement relating to Material Debt of the Borrower or any of its
Subsidiaries and shall continue after the applicable grace period, if any, specified in such
agreement, in each case in clauses (i) and (ii), if the effect of such event or condition is to
accelerate, or to permit the acceleration of, the maturity of such Material Debt; or




          (e) The Borrower or any of its Subsidiaries shall generally not pay its debts as such debts
become due, or shall admit in writing its inability to pay its debts generally, or shall make a
general assignment for the benefit of creditors; or any proceeding shall be instituted by or
against the Borrower or any of its Subsidiaries seeking to adjudicate it a bankrupt or insolvent,
or seeking liquidation, winding up, reorganization, arrangement, adjustment, protection, relief, or
composition of it or its debts under any law relating to bankruptcy, insolvency, moratorium or
reorganization or relief of debtors, or liquidation or winding up, or seeking the entry of an order
for relief or the appointment of a receiver, trustee, custodian or other similar official for it or
for any substantial part of its property, assets or revenues and such proceeding shall remain
undismissed or unstayed for a period of 60 days; or the Borrower or any of its Subsidiaries shall
take any corporate action to authorize any of the actions set forth above in this subsection (e);
or




          (f) Any judgment or order for the payment of money in excess of $100,000 shall be rendered
against the Borrower or any of its Subsidiaries (exclusive of amounts fully covered by insurance)
and, if such judgment or order shall not have been stayed or discharged (or provision made for
discharge), there shall be any period of 60 consecutive days following such












 





-26-


judgment or order
during which a stay of enforcement of such judgment or order, by reason of a pending appeal or
otherwise, shall not be in effect; or




          (g) A Change in Control shall occur; or




          (h) The Borrower or any of its Subsidiaries shall incur liability to a Plan, a Multiemployer
Plan or the PBGC (or any combination of the foregoing) that either individually or in the
aggregate, could reasonably be expected to have a Material Adverse Effect; or




          (i) Any Insured Subsidiary shall be required (whether or not the time allowed by its Bank
Regulatory Authority for the submission of such plan has been established or elapsed) to submit a
capital restoration plan of the type referred to in 12 U.S.C. §1831o(b)(2)(C), as amended,
re-enacted or redesignated from time to time, or shall cease being an insured bank or accepting
deposits or making commercial loans on the instruction of any Bank Regulatory Authority with
authority to give such instruction other than pursuant to an instruction generally applicable to
banks organized under its jurisdiction of organization or shall fail to comply with the provisions
of the Consent Order or shall otherwise be subject to a cease and desist order or other
disciplinary action; or




          (j) Any Bank Regulatory Authority having regulatory authority over Borrower or any Insured
Subsidiary, shall impose any restriction upon the payment of dividends from any such Insured
Subsidiary to the Borrower;



then, and in any such event, the Lender may, by notice to the Borrower, (i) declare the obligation
of the Lender to make Advances to be terminated, whereupon the same shall forthwith terminate,
and/or (ii) declare the Advances and the Note, all interest thereon and all other amounts payable
under this Agreement to be forthwith due and payable, whereupon the Advances and the Note, all such
interest and all such other amounts shall become and be forthwith due and payable, without
presentment, demand, protest or further notice of any kind, all of which are hereby expressly
waived by the Borrower; provided, however, that in the event of an entry of an
order for relief with respect to the Borrower under the Federal Bankruptcy Code, (A) the obligation
of the Lender to make Advances shall automatically be terminated and (B) the Advances and the Note,
all such interest and all such amounts shall automatically become and be due and payable, without
presentment, demand, protest or any notice of any kind, all of which are hereby expressly waived by
the Borrower.




     SECTION 7. MISCELLANEOUS.



     7.01. Amendments, Etc. No amendment or waiver of any provision of this Agreement or the
Note, nor consent to any departure by the Borrower therefrom, shall in any event be effective
unless the same shall be in writing and signed by the Lender, and then such waiver or consent shall
be effective only in the specific instance and for the specific purpose for which given. This
Agreement and the Note and the documents referred to herein and therein constitute the entire
agreement of the parties with respect to the subject matter hereof and thereof.












 





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     7.02. Notices, Etc. All notices and other communications provided for hereunder shall be
in writing (including telecopier, telegraphic, telex or cable communication) and mailed,
telecopied, telegraphed, telexed, cabled or delivered, to the respective addresses set forth below or at such other address
as shall be designated by any party in a written notice to the other party. All such notices and
communications shall, when mailed, telecopied, telegraphed, telexed or cabled, be effective when
deposited in the mails, telecopied, delivered to the telegraph company, confirmed by telex
answerback or delivered to the cable company. Notices must be sent to all parties at the addresses
below:


Lender:



SunTrust Bank

303 Peachtree Street

3rd Floor

P.O. Box 4418

GA-Atlanta-0121

Atlanta, Georgia 30308



Attn: K. Scott Bazemore

         Vice President/Portfolio Manager

Tel: 404-230-5250

Fax: 404-581-1775


Borrower:



FirstMerit Corporation

111 Cascade Plaza

Akron, OH 44308



Attn: Mark F. DuHamel, Treasurer

Tel: 330-384-7535

Fax: 330-384-7133




     7.03. No Waiver; Remedies. No failure on the part of the Lender to exercise, and no delay
in exercising, and no course of dealing with respect to, any right hereunder or under the Note
shall operate as a waiver thereof; nor shall any single or partial exercise of any such right
preclude any other or further exercise thereof or the exercise of any other right. The remedies
herein provided are cumulative and not exclusive of any remedies provided by law.



     7.04. Costs, Expenses and Indemnification.



          (a) The Borrower agrees to pay to the Lender and reimburse the Lender on demand for all
reasonable costs and expenses incurred by the Lender in connection with the preparation,
negotiation, execution and delivery, administration, modification, amendment or enforcement of this
Agreement, the Note and the other documents to be delivered hereunder, including, without
limitation, the reasonable fees and out-of-pocket expenses of counsel for the Lender with respect
thereto and with respect to advising the Lender as to its rights and












 





-28-


responsibilities under or in connection with this Agreement, including during any workout or
restructuring.




          (b) The Borrower hereby indemnifies the Lender and each of its Affiliates and their
respective officers, directors, employees, agents, advisors and representatives (each, an
“Indemnified Party”) from and against any and all claims, damages, losses, liabilities and
expenses (including, without limitation, fees and disbursements of counsel), joint or several, that
may be incurred by or asserted or awarded against any Indemnified Party, in each case arising out
of or in connection with or relating to any investigation, litigation or proceeding or the
preparation of any defense with respect thereto arising out of or in connection with or relating to
this Agreement or the transactions contemplated hereby or thereby or any use made or proposed to be
made with the proceeds of the Advances, whether or not such investigation, litigation or proceeding
is brought by the Borrower or any of its Subsidiaries, any of its shareholders or creditors, an
Indemnified Party or any other Person, or an Indemnified Party is otherwise a party thereto, and
whether or not any of the conditions precedent set forth in Section 3 are satisfied or the other
transactions contemplated by this Agreement are consummated, except to the extent such claim,
damage, loss, liability or expense is found in a final, non-appealable judgment by a court of
competent jurisdiction to have resulted from such Indemnified Party’s gross negligence or willful
misconduct. The Lender shall have no liability for any indirect, special, consequential or
punitive damages in connection with any matter relating hereto.




     7.05. Assignments and Participations.



          (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, except that the Borrower may not assign
or transfer any of its rights hereunder without the prior written consent of the Lender (and any
attempted assignment or transfer by the Borrower without such consent shall be null and void).




          (b) The Lender may from time to time assign to another Person all or a portion of its rights
and obligations under this Agreement (including, without limitation, all or a portion of the
Commitment, the Advances and the Note); provided that (i) except in the case of an assignment to an
Affiliate of the Lender, the Borrower must give its prior written consent to such assignment (which
consent shall not be unreasonably withheld), and (ii) except in the case of an assignment to an
Affiliate of the Lender or an assignment of the entire remaining amount of the Lender’s Commitment,
the amount of the Commitment subject to each such assignment shall not be less than $10,000,000
unless the Borrower otherwise consents; provided further that any consent of the Borrower otherwise
required under this paragraph shall not be required if an Event of Default has occurred and is
continuing.




          (c) The Lender may sell participations to one or more banks or other entities (a
“Participant”) in or to all or a portion of its rights and obligations under this Agreement
(including, without limitation, all or a portion of its Commitment, the Advances and the Note);
provided, that (i) the Lender’s obligations under this Agreement shall remain unchanged,
(ii) the Lender shall remain solely responsible to the Borrower for the performance of such obligations












 





-29-


and (iii) the Borrower shall continue to deal solely and directly with the Lender in connection
with the Lender’s rights and obligations under this Agreement. Any agreement or instrument
pursuant to which the Lender sells such a participation shall provide that the Lender shall retain
the sole right to enforce this Agreement and to approve any amendment, modification or waiver of
any provision of this Agreement; provided that such agreement or instrument may provide that the
Lender will not, without the consent of the Participant, agree to (i) increase or extend the term,
or extend the time or waive any requirement for the reduction or termination, of the Commitment,
(ii) extend the date fixed for the payment of principal or interest on the Advances or any portion
of any fee hereunder payable to the Participant, (iii) reduce the amount of any payment of
principal hereunder, or (iv) reduce the rate at which interest is payable hereunder, or any fee
payable to the Participant, to a level below the rate at which the Participant is entitled to
receive such interest or fee.




          (d) The Lender may, in connection with any assignment or participation or proposed assignment
or participation pursuant to this Section 7.05, disclose to the assignee or participant or proposed
assignee or participant, any information relating to the Borrower or any Subsidiaries or
Affiliates thereof furnished to the Lender by or on behalf of the Borrower.




          (e) Notwithstanding any other provision set forth in this Agreement, the Lender may at any
time assign or create a security interest in all or any portion of its rights under this Agreement
(including, without limitation, the Advances and the Note) in favor of any Federal Reserve Bank in
accordance with Regulation A of the Board of Governors of the Federal Reserve System; provided that
no such pledge or assignment of a security interest shall release the Lender from any of its
obligations hereunder or substitute any such assignee for the Lender as a party hereto.




          (f) All amounts payable by the Borrower to the Lender under Sections 2.10, 2.11, 2.12 and
7.04(b) shall be determined as if the Lender had not sold or agreed to sell any participations in
the Advances or the Note or its Commitment and as if the Lender were funding each of such Advances
and Commitment in the same way that it is funding the portion of such Advances and Commitment in
which no participations have been sold.




     7.06. Governing Law; Submission to Jurisdiction.



          (a) This Agreement and the Note shall be governed by, and construed in accordance with, the
law of the State of Georgia. The Borrower hereby submits to the nonexclusive jurisdiction of any
Federal and/or state court (including without limitation the Business Case division of the Fulton
County Superior Court, if applicable) located in the State of Georgia and any appellate court
thereof for the purposes of any action or proceeding arising out of or relating to this Agreement
or the Note or the transactions contemplated hereby. The Borrower irrevocably waives, to the
fullest extent permitted by applicable law, any objection that it may now or hereafter have to the
laying of the venue of any such action or proceeding brought in such a court and any claim that any
such action or proceeding brought in such a court has been brought in an inconvenient forum.













 





-30-



          (b) The Borrower irrevocably consents to service of process in the manner provided for
notices in Section 7.02. Nothing in this Agreement will affect the right of the Lender to serve
process in any other manner permitted by law.




     7.07. Severability. In case any provision in this Agreement or in the Note shall be held
to be invalid, illegal or unenforceable, such provision shall be severable from the rest of this
Agreement or the Note, as the case may be, and the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or impaired thereby.



     7.08. Execution in Counterparts. This Agreement may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of which when so
executed shall be deemed to be an original and all of which taken together shall constitute one and
the same agreement.



     7.09. Survival. The obligations of the Borrower under Sections 2.10, 2.11, 2.12 and 7.04
shall survive the repayment of the Advances and the termination of the Commitment.



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



     7.11. No Fiduciary Relationship. The Borrower acknowledges that the Lender has no
fiduciary relationship with, or fiduciary duty to, the Borrower arising out of or in connection
with this Agreement or the Note, and the relationship between the Lender and the Borrower is solely
that of creditor and debtor. This Agreement does not create a joint venture among the parties.



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



     7.13. USA PATRIOT Act. The Lender hereby notifies the Borrower that pursuant to the
requirements of the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26,
2001)) (the “Act”), it is required to obtain, verify and record information that identifies
the Borrower, which information includes the name and address of the Borrower and other information
that will allow the Lender to identify the Borrower in accordance with the Act.



     7.14 Time is of the Essence. Time is of the essence in interpreting and performing
this Agreement and the Note.



     7.15. Confidentiality. The Lender agrees to maintain the confidentiality of the
information (as defined below), except that Information may be disclosed (a) to its Affiliates and
to its and its Affiliates’ respective partners, directors, officers, employees, agents, advisors
and other representatives (it being understood that the Persons to whom such disclosure is made
will be informed of the confidential nature of such Information and instructed to keep such












 





-31-


Information confidential), (b) to the extent requested by any regulatory authority purporting to
have jurisdiction over it (including any self-regulatory authority), (c) to the extent required by
applicable laws or regulations or by any subpoena or similar legal process, (d) to any other party
hereto (e) in connection with the exercise of any remedies hereunder or under the Note or any
action or proceeding relating to this Agreement or the Note or the enforcement of rights hereunder
or thereunder, (f) subject to an agreement containing provisions substantially the same as those of
this Section, to (i) any assignee of or Participant in, or any prospective assignee of or
Participant in, any of its rights or obligations under this Agreement or (ii) any actual or
prospective counterparty (or its advisors) to any swap or derivative transaction relating to the
Borrower and its obligations, (g) with the consent of the Borrower or (h) to the extent such
Information (x) becomes publicly available other than as a result of a breach of this Section or
(y) becomes available to the Lender or any of its Affiliates on a nonconfidential basis from a
source other than the Borrower.


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




[signatures appear on following pages]
















 






     IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their
respective officers thereunto duly authorized, as of the date first above written.



	 	 	 	 	 
	 	FIRSTMERIT CORPORATION

 	 
	 	By:  	/s/ Terrence E. Bichsel
 	 
	 	 	Name:  	Terrence E. Bichsel 	 
	 	 	Title:  	Exec. Vice President and CFO 	 
	 
	 	 	 
	 	By:  	                                              /s/ Mark N. DuHamel
 	 
	 	 	Name:  	Mark N. DuHamel 	 
	 	 	Title:  	Exec. Vice President and Treasurer 	 
	 



[SIGNATURE PAGE TO FIRSTMERIT CORPORATION/ SUNTRUST BANK

JULY 2007 CREDIT AGREEMENT]




 









 








	 	 	 	 	 
	 	SunTrust Bank

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



[SIGNATURE PAGE TO FIRSTMERIT CORPORATION/ SUNTRUST BANK

JULY 2007 CREDIT AGREEMENT]





 









 








EXHIBIT A

[FORM OF NOTE]




			
	U.S. $15,000,000
	 	Dated: July 20, 2007






     FOR VALUE RECEIVED, the undersigned, FIRSTMERIT CORPORATION, a corporation, organized under
the laws of Ohio (the “Borrower”), HEREBY PROMISES TO PAY to the order of SunTrust Bank
(the “Lender”) for the account of its Applicable Lending Office (as defined in the Credit
Agreement referred to below) on the Commitment Termination Date (as so defined) the principal sum
of FIFTEEN MILLION DOLLARS ($15,000,000) or, if less, the aggregate outstanding principal amount of
the Advances (as defined below) pursuant to the Credit Agreement.



     The Borrower promises to pay interest on the unpaid principal amount of each Advance from the
date of such Advance until such principal amount is paid in full, at such interest rates, and
payable at such times, as are specified in the Credit Agreement.
 In addition, should legal action or an attorney at-law be utilized to collect any amount due
hereunder, the Borrower further promises to pay all costs of collection, including the reasonable
attorneys’ fees of the Lender.



     Both principal and interest are payable in lawful money of the United States of America in
immediately available funds at the office of the Lender at 303 Peachtree Street, Atlanta, Georgia
30308. Each Advance made by the Lender to the Borrower pursuant to the Credit Agreement, and all
payments made on account of principal thereof, shall be recorded by the Lender and, prior to any
transfer hereof, endorsed on the grid attached hereto which is part of this Note; provided,
that the failure of the Lender to make any such recordation or endorsement shall not affect the
obligations of the Borrower hereunder or under the Credit Agreement.



     This Note is the Note referred to in, and is entitled to the benefits of, the Credit Agreement
dated as of July 20, 2007 (the “Credit Agreement”, the terms defined therein being used
herein as therein defined) between the Borrower and the Lender. The Credit Agreement contains
provisions for acceleration of the maturity hereof upon the happening of certain stated events and
also for prepayments on account of principal hereof prior to the maturity hereof upon the terms and
conditions therein specified.



     The Borrower hereby waives presentment, demand, protest and notice of any kind. Time is of
the essence. No failure to exercise, and no delay in exercising, any rights hereunder on the part
of the holder hereof shall operate as a waiver of such rights.



 









 





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     This Note shall be governed by, and construed in accordance with, the law of the State of
Georgia, United States of America.



	 	 	 	 	 
	 	FIRSTMERIT CORPORATION

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 




 









 




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ADVANCES AND PAYMENTS OF PRINCIPAL




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	Amount and	 	Amount of	 	Unpaid of	 	 
	 	 	 	 	Type of	 	Principal Paid	 	Principal	 	Notation
	Date	 	Advance	 	or Prepaid	 	Balance	 	Made By